Real Ordinance

JU-39
Jagannath University National Moot Court Competition-2017
IN THE HON’BLE SESSION COURT OF JAIPUR
In the Matter
of
STATE…………...................................................................................................PROSECUTION
Versus
VISHNU PANDEY AND ORS………………….…………………………..……..RESPONDENTS
Memorial on Behalf of the Respondents
COUNSELS FOR RESPONDENTS

JAGANNATH NATIONAL MOOT COURT COMPETITION 2017
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
 TABLE OF CASES
 STATUTES REFERRED
 BOOKS REFERRED
 JOURNALS AND REPORTERS
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
1. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

ACCUSED ON THE ON THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE?
1.1 THAT THE ACCUSED ARE NOT GUILTY OF OFFENCE UNDER SECTION 304B READ WITH
SECTION 498A OF IPC.
1.1.1 THAT THE ACCUSED ARE NOT GUILTY FOR THE OFFENCE OF DOWRY DEATH
1.2 THAT THE ACCUSED ARE NOT GUILTY FOR THE OFFENCE OF MURDER.
1.2.1 MENS REA OF MURDER IS NOT ESTABLISHED
1.2.2 ACTUS REUS OF MURDER IS NOT ESTABLISHED
1.3 THAT THE DYING DECLARATION IS NOT ADMISSIBLE AS EVIDENCE
2. WHETHER RAPE HAS BEEN COMMITTED OR NOT?
2.1 THAT THE CONFESSION MADE BY RAHUL WAS SELF-INCRIMINATING

2.1.1. PROTECTION AGAINST COMPULSION TO BE A WITNESS
MEMORANDUM DRAWN AND FILED BY THE RESPONDENT2

2.2 DYING DECLARATION IS UNRELIABLE
2.3. THAT THERE WAS NO DIRECT AND CLEAR EVIDENCE

2.3.1 THAT CIRCUMSTANTIAL EVIDENCE ARE UNRELIABLE
2.3.2 REASONABLE DOUBT
PRAYER
LIST OF ABBREVIATIONS
Abbreviation Definition
& And
¶ Paragraph
AIR All India Reporter
Anr Another
Art Article
CA. Criminal Appeal
CIT Commissioner of Income Tax
CrLJ Criminal Law Journal
SC Supreme Court
SCC Supreme Court Cases
UOI Union of India
V Versus
KSA Kormi Shrines Act, 1925
HPRA Hidamb Province Reorganisation Act, 1966
Gau Guwahati
Cr.PC Code of Criminal Procedure
SCR Supreme Court Report
DV DomesticViolence
DW Defence Witness
FIR First Information Report

HC High Court
i.e. That is
IPC Indian Penal Code
IEA Indian Evidence Act
FD Fixed Deposit
NCT National Capital Territory
Mad Madras
Ors Others
PC Privy Council
P&H Punjab & Haryana
PW Prosecution Witness
PMR Post Mortem Report
SC Supreme Court
SCR Supreme Court Record
SLP Special Leave Petition
UOI Union of India
v. Versus

INDEX OF AUTHORITIES
TABLE OF CASES
S.No. Case Citation

1 Vipin Jaiswal v. State of Andhra Pradesh (2013) 2 SCC 451
2 State of Andhra Pradesh v. Kalidindi Sahadevedu 2012 Cr LJ 2302 (AP)
3 Suvetha v. State , (2009) Cr. LJ 2974
4 Chanda Laxmi v. State of Andhra Pradesh 1996 Cr.LJ 2670
5 Lokesh Kaushik and Ors v. State SC
6 State of AP v. Madhusudhan Rao 2008 15 SCC 582
7 Kans Raj v. State of Punjab AIR 2000 SC 2324.
8
8 Kantilal Martaji Pandor v. State of Gujarat (2003) 8 SCC 781
9 Gurnam Singh v. State of Punjab Cr.LJ 3694
10 Jawahar Maghi Sindhi Bhansale v. State of Gujarat Cr.LJ 1717
11 Sunkara Suri Babu v. State of Andhra Pradesh 1996 Cr.LJ 1480
12 Keshab Chandra Panda v. State of Orissa (1995) 1 Cr.LJ 74
13 Durga Parsad v. State of MP 2010 Cr.LJ 3419
14 Anil Kumar Gupta v. State of U.P 2011, Cr.LJ 2131
15 State of Tamil Nadu v. C.A. Aktar & Co. MANU/TN/0637/1997
16 Balwinder singh v. State of Punjab 1987) 1 SCC 1: 1987 SCC (Cri)
223
17 Sudama Pandey v. State of Bihar (2002) 1 SCC 679: 2002 SCC (Cri)
239
18 Pawan Kumar v. State of Haryana (2001) 3 SCC 628:2001 SCC (Cri)
594
19 State of UP v. Ashok Kumar Srivastava (1992) 2 SCC 86:1992 SCC (Cri)
241
20 Kali Ram v. State of H.P. AIR 1973SC 2773.
21 Subimal Sarkar v. Sachindra Nath Mandal AIR 2003 SC 1108

22 Amar Singh v. State of M.P 1996 Cr.LJ 1582 (MP)

23 Nandini Satpathi v. P.L. Dani 1978 AIR 1025: 1978 SCR (3) 608:
1978 SCC (2) 424
24 M.P. Sharma v. Satish Chandra 1954 AIR 300: 1954 SCR 1077
25 State of Bombay v. Kathi Kalu Oghad and Ors 1961 AIR 1808: 1962 SCR (3) 10
26 State of Punjab v. Bhajan Singh AIR 1975 SC 258
27 Lal Chand v. State of Haryana AIR 1984 SC 226
28 Badal Sheikh v. State 1986 (2) Crimes-316
29 Mohan Lal v. State of U.P AIR 1974 SC 1144
30 Janar Lal Das v. State of Orissa 1991 (3) SCC 27
31 A. Jayaram & Ors v. State of A.P AIR 1995 SC 2128
32 Ramakanth Rai v. Madan Rai, CrLJ 2004 SC 36
33 Rajesh Patel v. State of Jharkhand AIR 2013 SC 1497, (2013) 3 SCC
791, (2013) Cr LJ 2062 (SC)
34 Tameezuddin v. State (NCT) of Delhi (2009) 15 SCC 566 2009 (12)
SCALE 303
35 Ganga Singh v. State of Madhya Pradesh AIR 2013 SC 3008, (2013) SCC
278, (2013) Cr LJ 3966 (SC)
36 Raju v. State of Madhya Pradesh (2008) 15 SCC 132, AIR 2009 SC
858
37 Radha v. State of Madhya Pradesh (2007) 12 SCC 57, 2007 Cri LJ
4704
38 Bbhishan v. State of Maharashtra (2007) 12 SCC 390, 2008 Cr LJ
721 (SC)
39 Ramnath Maduprasad v. State of Madhya Pradesh AIR 1953 SC 420
STATUTES REFERRED
 CONSTITUTION OF INDIA
 THE DOWRY PROHIBITION ACT, 1961.
 THE CODE OF CRIMINAL PROCEDURE, 1973.

 THE INDIAN EVIDENCE ACT, 1872.

 THE INDIAN PENAL CODE, 1860.
 THE PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE ACT, 2005.
BOOKS REFERRED
 Batuk Lal, LAW OF EVIDENCE, (21st Ed., Central Law Agency, 2016)
 Justice UL Bhatt, LECTURES ON INDIAN EVIDENCE ACT,(Universal LawPublication,2015)
 KD Gaur, CRIMINAL LAW: CASES & MATERIALS, (6th Ed., Lexis Nexis, 2009)
 KD Gaur, THE INDIAN PENAL CODE, (15th Ed. , Law Publishers India Pvt. Ltd., 2016)
 KD Gaur, COMMENTARY ON THE INDIAN PENAL CODE, (2006 edition, Universal Law
Publishing Co. Pvt. Ltd., New Delhi.)
 N.K. Acharya, PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE (6th Ed. Asia
Law House,2013)
 Prof. Arthur Best, WIGMORE ON EVIDENCE, (Aspen Publishers; 13-Volume Ed.December
31, 1995)
 P.K. Majumdar & R.P. Kataria, LAW RELATING TO DOWRY PROHIBITION CRUELTY &
HARASSMENT, (3rd Ed. Orient Publication,2015)
 Ram Jethmalani & DS Chopra, THE INDIAN PENAL CODE (Vol. II , Thomson Reuters)
 Ram Shelkar, LAW RELATING TO DOWRY DEATH, (1st Ed. , Kamal Publishers, 2010)
JOURNALS AND REPORTERS
 All India Reporter

 Lexis Nexis Academicia
 Manupatra Online Resources
 Lexis Nexis Legal
 SCC Online

STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section
209 of the Code of Criminal Procedure, 1973.
Section177:
‘177. Ordinary place of inquiry and trial-
Every offence shall ordinarily be enquired into and tried by a Court within whose jurisdiction it
was committed.’
Read with Section 209:

‘209. Commitment of case to Court of Session when offence is triable exclusively by it-
When a case instituted on a police report or otherwise, the accused appears or is brought before
the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the
Court of Session, he shall-
(a) commit the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during,
and until the conclusion of the, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to
be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

STATEMENT OF FACTS
Background:
Mr. Satya Prakash was the Executive Editor of the magazine ‘The Dawn’ and was finding a
suitable groom for his daughter Dhanlaxmi. He got in close terms with Mr. Vishnu Pandey, a
journalist who recently joined the magazine as a Junior Editor. Mr. Prakash as a journalist with a
reformative stance was never in support of dowry and hence gave no gifts to her daughter on her
marriage. Vishnu Pandey though a sincere journalist was not a punctual person and was in habit
of arriving late in the office , which when reported to Mr. Prakash resulted in serious humiliation
for Mr. Pandey and made a good office gossip for the day.
Timeline of Events:
Dates Events
29th December 2007 Marriage of Vishnu Pandey and Dhanlaxmi was solemnized
observing all the customery rites. Mr. Satya Praksah gifted some
jewelry and a Rado watch to his son-in-law Vishnu Pandey.
9th January 2010 Mr. Prakash scolded Vishnu Pandey in front of the whole office
staff. Vishnu then went to his chamber and in the presence of his
Secretary warned him that he is not ready to bear anymore such
humiliations and if such a thing happens in future then Mr. Prakash
must remember that his daughter is married to him and must be
ready to bear the after effects of it. Vishnu reached home and started
shouting on her wife for not getting a car from paternal home.
19th October 2010 A distant relative of Laxmi Devi called her and told her that they are
getting a lot of cash and a car in dowry. Laxmi Devi slapped
Dhanlaxmi as she broked some glass.
5th July 2014 When Dhanlaxmi was alone in the house, Vishnu came with 2 of
his friends namely Jayesh and Rahul in drunken condition and
misbehaved with the security guard to which Dhanlaxmi scolded
him in front of his friends. Vishnu was seriously willing to take
revenge and they started talking that they would rape her as she

needs a lesson.
In the morning, Vishnu saw the gate open and went inside and saw
Dhanlaxmi lying unconscious on the floor and took her to the
nearest hospital. Laxmi and Rohan as soon as they entered the ICU
started abusing her by saying that her allegations against Vishnu
and his friends are false and in that moment of anger Laxmi kicked
Dhanlaxmi’s stomach for a several times.
At 12:49 PM Dhanlaxmi succumbed to her injuries. After that the
police officials conducted an investigation in the matter and
recorded several statements along with that of the doctors who were
looking after Dhanlaxmi.
30th March 2015 The police got hold of Rahul who accepted his role in rape and
subsequently Vishnu and Jayesh were also arrested. Charges have
been framed against Mr. Vishnu, Mr. Jayesh, Mr. Rahul, Mrs.
Laxmi, Mr. Rohan under section –37, 323, 322, 326, 376, 302,
498(À), 304 (B), 506 rw. S. 34, s. 354, s. 299 of Indian Penal Code,
S. 113A of Indian Evidence Act.
Dying Declaration:
Mrs.Dhanlaxmi: I was raped three times at around 3:00 am, while I was sleeping. The rapists
covered my face using thick piece of cloth. When my mother-in-law came inside along with my
brother-in-law, she kicked me on my stomach.
Medical Report of Dhanlaxmi:
All the clothes were blood stained, nails wound on back and neck were present. Under internal
examination it was found that she was habitual to sex, no semen was found and there was no
wounds on vaginal part. The cause of death was due to internal bleeding, hyovolemia and
dyspnea.

STATEMENT OF ISSUES
Issue 1.
WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

Issue 2.
WHETHER RAPE HAS BEEN COMMITTED OR NOT?

SUMMARY OF ARGUMENTS
Issue 1.
WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

It is humbly submitted before this hon’ble court that the accused is not guilty of the offence
under Section 304B read with Section 498A of IPC as well as the offence of dowry death as the
accused was concerned towards his wife as he took her to the hospital immedietly. The dying
declaration of the deceased is also unreliable as she has not mentioned the names of the accused.
There murder was also not committed by the accused as there was neither mens rea nor actus rea
towards Dhanlaxmi. The deceased was not subjected to cruelty or harassment by her in laws.
Issue 2.
WHETHER RAPE HAS BEEN COMMITTED OR NOT?
It is humbly submitted before this hon’ble court that rape has not been committed by the accused
as the confession made by Rahul was self-incriminating and that the circumstantial evidence in
the present matter is unreliable as well as no clear and direct evidence against the accused could
be traced. It can be seen through the Medical Examination report of Dhanlaxmi that rape has not
been committed. Reasonable doubt exist, hence the accused should be acquitted from the alleged
crime.

ARGUMENTS ADVANCED
1. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

It is most humbly submitted before the honorable court that it is justified to uphold the acquittal
of the accused on the basis of oral and documentary evidence provided. Firstly, the accused are
not guilty for the offence of Dowry Death and Cruelty [1.1] secondly, the accused is not guilty
for the offence of Murder [1.2], because the dying declaration is not admissible as an evidence.
[1.3].
1.1 THAT THE ACCUSED ARE NOT GUILTY OF OFFENCE UNDER SECTION 304B READ WITH
SECTION 498A OF IPC.
It is humbly submitted before this Honorable Court that the accused are not guilty for the offence
of dowry death. The Honorable SC has pronounced that for conviction in dowry death it is
mandatory to prove cruelty first. 1Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine2. Also, cruelty means any willful
conduct which is of such a nature as is likely to drive the woman to cause grave injury or danger
to life, limb or health (whether mental or physical) of the woman.3
In the present case, there is no any willful conduct which is of such nature as is likely to drive the
woman to cause grave injury or danger to life or health (whether mental or physical). For
proving the offence under section 498A the following ingredients of this Section must be
fulfilled.
1. The women must be married

2. She must be subjected to cruelty or harassment and
1
Vipin Jaiswal v. State of Andhra Pradesh, (2013) 2 SCC 451.
2
Section 498A, IPC, 1860.
3
Explaination 1 of Section 498A IPC,1860.
3. Such cruelty or harassment must have been shown either by husband of the woman or by the
relative of her husband.4
In the instant case only the first ingredient is satisfied. The testimonies of witnesses do not prove
that the deceased was subjected to any cruelty. Also in the present case the Trial Court convicted
the accused only u/s 302 of IPC, it means that accused is not guilty of the offence of dowry death
& cruelty in the present case.
Where the charge was that of murdering wife for dowry and no evidence was available except
this that the accused projected the theory of intruders killing her (which the court did not believe)
injured wife, this was held to be not sufficient to convict him for murder 5. In the present case,
there was no intention, whatsoever, on the part of Vishnu Pandey to be cruel towards Dhanlaxmi
which can be seen when he saw his wife lying on the floor in unconscious state, he immedietly
took her to the hospital. He could have murdered her there itself which he did not do so.
In State of Andhra Pradesh v. Kalidindi Sahadevedu6, it was alleged that, as the deceased did
not beget child for a period of three year after the marriage, accused harassed the deceased by
calling her “barren woman”. It was held that mere commenting that deceased was not begetting
children, does not amount to subjecting cruelty within the meaning of section 498A of IPC.
Hence, in the present case the allegation of appellant that deceased mother in law threatened to
give birth to a baby boy, within one year, else she would be thrown out would not amount to
cruelty under section 498A of IPC. Also, as per the testimony of LaxmiDevi and Rohan, she
never intend to torture her by any means, though some quarrels happened in nature at home but
they were very general in nature
Even mere harassment or mere demand for dowry for property etc. is not cruelty. It is only where
the harassment is shown to have been caused for the purpose of coercing a woman to meet
demands that it amounts to cruelty which has been made punishable under the section.7
4
Suvetha v. State, (2009) Cr. LJ 2974.
5
Chanda Laxmi v. State of Andhra Pradesh 1996 Cr.LJ 2670.
6
2012 Cr LJ 2302 (AP).
7
Lokesh Kaushik and Ors v. State, SC.
Also the SC has observed that in-laws of a deceased cannot be roped in only on the ground of
being the close relative of the husband of the deceased. Some overt act must be attributed to
them in the incident and the same should also be proved beyond reasonable doubt.8
Also in State of AP v. Madhusudhan Rao,9 no cruelty for dowry was made out, the fact that
there was attempt at forced poisoning was nullified in the view of SC. The court also pointed out
harassment simpliciter is not cruelty; it is cruelty when it is passed for coercing a dowry demand.
The SC observed in the number of cases that where the cause of the death of the deceased is no
more in question in a case, the dying declaration made by the deceased cannot be taken to be
proof of cruel acts committed by the appellant for the purpose of holding him guilty under
section 498A IPC.10 Also in the present case, the relationship between the accused & deceased
was cordial & DW’s stated the same.
1.1.1 THAT THE ACCUSED ARE NOT GUILTY FOR THE OFFENCE OF DOWRY DEATH
It is most humbly submitted before this honourable court that the accused are not guilty of the
offence of dowry death. Where the death of a woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty or harassment by her husband or
any relative of her husband for, or in connection with, any demand for dowry, such death shall be
called "dowry death", and such husband or relative shall be deemed to have caused her death
shall be punished with imprisonment for a term which shall not be less than seven years but
which may extend to imprisonment for life.11
The term “dowry” means any property or valuable security given or agreed to be given either
directly or indirectly by one party to the marriage to the other party to the marriage or by the
parent of either party to the marriage or to any other person.12 In the present case there is no any
property or valuable security given or agreed to be given directly by Satya Prakash to Vishnu
Pandey.
8
Kans Raj v. State of Punjab, AIR 2000 SC 2324.
9
2008 15 SCC 582.
10
Kantilal Martaji Pandor v. State of Gujarat, (2003) 8 SCC 781.
11
Section 304B, Indian Penal Code,1860.
12
Section 2, Dowry Prohibition Act, 1961.
It is pertinent to note that this section apply whenever the occurrence of death is preceded by
cruelty or harassment by husband or in laws for dowry and death occurs in unnatural
circumstances. But in the instantaneous case, it is very clear from the facts of the case that the
occurrence of death is not preceded by cruelty or harassment by husband and in laws as per the
recorded statements. Henceforth, it is most humbly submitted in this Hon’ble Court that the
accused is not guilty for the offence of dowry death.
In a similar case where the accused were charged for harassing the victim for bringing
inadequate amount of money but demand for dowry was not proved and hearsay evidence of the
witnesses could not be proved beyond reasonable doubt. It was held that offence under section
498-A was not made out and accused was entitled to acquittal.13
The SC observed that, where in-laws was, in a case was subject to vague accusation of ill-
treatment but since there was no other evidence which could prove that in-laws was inflicting
physical and mental cruelty to the deceased wife, hence order of conviction and sentence passed
were set aside.14
It is pertinent to note that Section 304B of IPC always apply whenever the occurrence of death is
preceded (soon before) by cruelty or harassment by husband-in laws for dowry and death occurs
in unnatural circumstance.15 In the present case, the occurrence of the death of the deceased was
not preceded by cruelty or harassment by the accused for dowry. Hence they are not guilty for
the offence under section 304B of IPC.
Also it is pertinent to note that for convicting the accused under section 304B of IPC all the
ingredients must be fulfilled but in this case appellant failed to prove all the ingredients before
the court. There is no cruelty in the present case which is preceded by demand of dowry by
husband and in-laws.
In a case where the deceased was of little tolerance and the usual domestic quarrel led her to
commit suicide. In this situation, the accused was acquitted by giving him the benefit of doubt.16
Also to convict the accused under section 304B of the IPC one of the main ingredient of the
13
Gurnam Singh v. State of Punjab, Cr.LJ 3694.
14
Jawahar Maghi Sindhi Bhansale v. State of Gujarat, Cr.LJ 1717.
15
Ratanlal & Dhirajlal, The Indian Penal Code, 34th Edition, Section 304B).
16
Sunkara Suri Babu v. State of Andhra Pradesh, 1996 Cr.LJ 1480.
offence which is required to be established is that “soon before her death” she was subjected to
cruelty and harassment “in connection with the demand for dowry”17
In the case at hand, she was not subjected to cruelty in connection with the demand of dowry.
And in the present case there is no proximity between the death of the accused and the demand
for dowry.
In a case there was a history of beating the wife up for dowry. But the couple reconciled and
resumed joint life. The wife joined her husband after a long stay with her parents. Within two
days thereafter her parents were informed of her death. During that time she had not made any
complaint to her parents about dowry or torture. The court held that section was not attracted
because there was no cruelty or harassment soon before her death.18
In the instantaneous case, it is also observed that no presumption can be drawn.19 When the
question as to whether a person has committed the dowry death of a woman and it is shown that
soon before her death such woman had been subjected by such person to cruelty or harassment
for or in connection with any demand for dowry, the court shall presume that such person had
caused the dowry death.
If the requirements of Section 304B of IPC and Sec.113-B of IEA can’t be satisfied by the
prosecution, accused must be acquitted.20. The SC too set aside the conviction.21 Also SC in its
judgement observed that to record a conviction the last seen theory together itself would not be
sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt
of the accused.
Thus in the light of all the cases cited and the evidence produced we can conclude that in these
cases what the court has to see is “ interest of justice “ and the interest of justice demands that the
court should protect the respondent. Therefore respondents must be acquitted u/s 304B.
1.2 THAT THE ACCUSED ARE NOT GUILTY FOR THE OFFENCE OF MURDER.
17
Ratanlal & Dhirajlal, The Indian Penal Code, 34th Edition, Section 304B).
18
Keshab Chandra Panda v. State of Orissa, (1995) 1 Cr.LJ 74.
19
Section 113B, IEA, 1872.
20
Durga Parsad v. State of MP, 2010 Cr.LJ 3419.
21
Anil Kumar Gupta v. State of U.P., 2011, Cr.LJ 2131.
It is most humbly contended before this Honourable Court that the accused is not guilty for
committing the offence of murder under section 302 read with section 300, IPC. The defence
humbly contends that both, the actus reus and the mens rea of the crime are not established in the
instant matter. In order to constitute the guilt of the accused for murder,it must be in acordane of
the the fundamental principal of the penal liability i.e. “Actus non facit reum nisi mens sit rea”.
1.2.1 MENS REA OF MURDER IS NOT ESTABLISHED

In Indian Penal law, mens rea is inbuilt in the statute, mens rea is considered as guilty
intention22, which is proved or inferred from the acts of the accused. It is submitted that the
intention to kill is not established in light of clear cut motive of the accused. The accused hd no
intention to kill the victim and it is presumed that every sane person intends the result that his
action normally produces. In this case, the intention can be ruled out from the fact that cruelty
ould not be proved. Further, the intention to kill can be inferred from the murder of the victim. If
the accused had intention to kill the victim, then he would have instantly murdered her or left her
unconscious on the floor to die but instead he took her immedietly to the hospital to provide her
medical help.
When a man intentionally kills another, he must inflict such bodily injury sufficient in the
ordinary course of nature that his death result in immediate death. In our case, it can be clearly
seen through the medical examination which is an evidence here that there was no semen found,
there were no wounds on the vaginal part. There were nail wounds on back and neck and such
wounds cannot be considered as grevious hurt.
It is humbly submitted that the accused are not liable for punishment for voluntarily causing hurt.
following ingredients must be fulfilled:
(i) there must be must be an intention to cause hurt; which in this case was solely on the
presumptions of the witnesses that the accused intended to hurt Dhanlaxmi.
(ii) Or, with the knowledge that he likely thereby to cause hurt to any other person and does
thereby cause hurt to any person: which in this case is against the assumption of the witness and
the medical report.
22
State of Tamil Nadu v. C.A. Aktar & Co., MANU/TN/0637/1997.
(iii) two inferences can be drawn in the present matter; a well settled notion is that one standing
in favour of the accused must be considered.
In the present matter, after the marriage was solemnized on 9th Jan 2007, there was no problem
till then but the quarreal started because of the continuous scolding of Vishnu Pandey by the
father of Dhanlaxmi. There was no intention to cause hurt as there was no hurt caused to the
deceased and this was confirmed by the Medical Report.
As Medical Report reveals internal bleeding, hypovolemia and dyspnea as the cause of
Dhanlaxmi’s death. Hypovolemia means the decrease in the volume of circulating blood in the
body and dyspnea is the shortage of breath meaning thereby difficult or labored breathing.
Apparently marks were found on her back and neck, so that was because of the marital rape
committed by her husband. The question also arises that she has not complained about the reason
why she has not complained about this to her father, Mr. Satya Prakash.
Neither Dhanlaxmi, nor her relatives filed a complaint in the police station as Dhanlaxmi’s
relatives revealed that she was being tortured for dowry and her in-laws wanted a car in dowry.
The question here also arises that why her relatives didn’t inform the police about this. It is only
because she was not sure also not sure for torturing for dowry and her in-laws want a car in
dowry. It is also revealed that she also admitted that she will never tell about this to her father
which itself creates a reasonable doubt. Therefore, the statements of Dhanlaxmi’s relative is
completely suspicious and cannot be considered as evidence. A suspicious statement cannot
make the accused liable for the guilt.
Again, in the present matter, Mrs. Sharma stated that when Vishnu got married, he used to love
his wife a lot and even Laxmi Devi told her that her daughter in law is a perfect housewife
material. Whereas on the other hand, she says that she used to hear quarrels between Dhanlaxmi
and Laxmi Devi. There is suspicion in these statements which gives rise to reasonable doubt .In
the case of Balwinder singh v. State of Punjab23 , the court held that “The other aspect of the
issue is that the evidence on record, ascribed to be circumstantial, ought to justify the inferences
of the guilt from incriminating facts and circumstances which are incompatible with the
23
(1987) 1 SCC 1: 1987 SCC (Cri) 223.
innocence of the accused or the guilt of any other person.” The Court reiterated the same in a
more recent case of Sudama Pandey v. State of Bihar 24.
In the present matter, there are two inferences on the same issue. It is a general rule that if there
are two inferences on the same issue, then the inference favouring the accused must be admitted.
The same rule has also been held by this court in various cases. One such famous case is Pawan
Kumar v. State of Haryana25 , in paragraphs 2-3 the Supreme Court states in its judgement, “In
any event on the availability of two inferences , the one in favour of the accused ms accepted and
the law is well settled on this score , as such we need not dilate much in that regard. The same
was also held in the case of State of UP v. Ashok Kumar Srivastava26.
Therefore,in the present matter , the accused never caused voluntarily hurt to the deceased .
Thus, the court must presume27 the existence of this particular fact under Section 114 of Indian
Evidence Act and must not consider the accused liable of voluntarily causing hurt.
In the present case, the presumption of Section113 of Indian Evidence Act,1872 does not arise
for conviction under Section 302 because the basic ingredient i.e. mens rea is not proved. Also,
there is no preparation proved by the prosecution in the present case as prosecution has failed to
prove that Dhanlaxmi was brutally raped by her husband.
Mens rea consists of intention and motive of murder: “Motive by itself is not sufficient to base a
conviction.28 In the present matter the accused has no intention to murder Dhanlaxmi, the
deceased as she was succumbed to her injuries and the cause of death was internal bleeding,
dyspnea – shortness of breath and hypovolemia- a decreased volume of circulating blood in the
body as confirmed by the medical examination.
1.2.2 ACTUS REUS OF MURDER IS NOT ESTABLISHED
Actus Reus, since the accused had no intention to murder Dhanlaxmi, hence his intention never
converted into action to murder Dhanlaxmi. In the instant case, actus reus is not established by
way of witnesses statements, medical examination, dying declaration and the conduct of the
24
(2002) 1 SCC 679: 2002 SCC (Cri) 239.
25
(2001) 3 SCC 628:2001 SCC (Cri) 594.
26
(1992) 2 SCC 86:1992 SCC (Cri) 241.
27
Kali Ram v. State of H.P., AIR 1973 SC 2773.
28
Subimal Sarkar v. Sachindra Nath Mandal AIR 2003 SC 1108.
accused. Therefore, in the current matter witnesses of the prosecution are not reliable, then
reasonable doubt exist
1.3 THAT THE DYING DECLARATION IS NOT ADMISSIBLE AS EVIDENCE

It is most humbly submitted before this hon’ble court that the dying declaration of the deceased
was unreliable as evidence in the court.
There may be suspicion against the accused but the suspicion cannot take the place of evidence.
Here, evidence on record falls short of proving the guilt of accused beyond all reasonable doubt.
The appeal set aside the commission and acquitted the person guilty of punishment under Section
201 of IPC and hence, section 302 of IPC is not sustainable.
In the absence of any evidence whatsoever, to indicate that the death was murder and considering
the facts the possibility of self inflicted injury and false implication of the prosecution cannot be
ruled out because the chain of circumstantial evidence is not complete.
It is pertinent to note that the court should e satisfied that the deceased was in fit state of mind
and capable of making a statement at the time when it was recorded. Also in Amar Singh v.
State of M.P.29, it was held that without proof of mental or physical fitness, dying declaration is
not reliable. In the current case, on 6th July at 12pm, after conducting several tests and medical
examination, the doctors informed her in laws who were by now already at the hospital that she
would not be able to live for more than an hour on account of the internal bleeding in the
stomach.
It is most humbly submitted before this hon’ble court that the dying declaration of the deceased
should not be admissible as the evidence in the court. In light of the arguments above stated, it
has been clearly proved that the dying declaration of the accused cannot be admissible as the
victim did not mean the accused responsible for raping as well as murdering her. Also it was
stated by the accused under statement under Section 313 of CrPC that he found Dhanlaxmi lying
unconscious on the floor and immediately took her to the hospital whereas Rahul confessed that
29
1996 Cr.LJ 1582 (MP).
Vishnu brutally raped Dhanlaxmi. On the basis of the above stated facts, it can be concluded that
there is reasonable doubt as to what happened.
The version narrated by the victim is not intrinsically sound as the material evidence in the
Dying Declaration which states that she was raped 3 times is proved wrong by other reliable
evidence i.e. the medical examination report which says that there was no semen found. Her
statement was vague in respect of the medical examination report as it is not possible that a
person was raped 3 times and still there was no semen found, even though the tests were
conducted within 24 hours of the incident.

2. WHETHER RAPE HAS BEEN COMMITTED OR NOT?
It is humbly submitted before this hon’ble court that the accused is not guilty for the offence of
rape under Section376 of the Indian Penal Code. It is because there is a conflict between the
confession of Rahul made under Section 161 of Code of Criminal Procedure and the medical
examination under Section164A of Code of Criminal Procedure on the point of wounds on
vaginal part. As per the confession of Rahul that in order to take revenge, Vishnu firstly raped
her followed by him and Jayesh and during rape they also hit her badly whereas it is quashed by
the Medical Examination which states that:
(i) she was habitual to sex;

(ii) no semen was found and;
(iii) there were no wounds on the vaginal part.
Hence, rape has not been committed because:
(i) confession made by Rahul was self-incriminating,
(ii) no direct and clear evidence by the prosecution
2.1 THAT THE CONFESSION MADE BY RAHUL WAS SELF-INCRIMINATING
According to Article 20(3) of the Constitution of India, “No person accused of any offence shall
be compelled to be a witness against himself”. This principle is aspoused on the maxim ‘nemo
teneture prodre accussare seipsum’, which essentially means “NO MAN IS BOUND TO
ACCUSE HIMSELF.” The fundamental right guaranteed under Article 20(3) is a protected
umbrella against testimonial compulsion for people who are accused of an offence and are
compelled to a witness against themselves. The provision is borrowed by the 5th Amendment of
the American Constitution which lays down that, “No person shall be compelled in any criminal
case to be a witness against himself.”
This clause gives protection only if the following ingredients are present:
(a) It is a protection available to a person accused of an offence;
(b) It is a protection against compulsion to be a witness against oneself; and
(c) It is a protection against such “Compulsion” as resulting in his written evidence against
himself.

Self-incrimination has been extensively discussed in the case of Nandini Satpathi v. P.L.
Dani30. In this case the appellant, a formal Chief Minister of Orissa was directed to appear at
Vigilance Police Station, for being examined in the connection to a case registered against her
under the Prevention of Corruption Act, 1947 under Section 161/165 and 120-B and 109 of the
Indian Penal Code,1860. Based on this an investigation was started against her and she was
interrogated with long list of questions given to her in writing. She denied to answer and claimed
protection under Article 20(3). The Supreme Court ruled that the objective of Article 20(3) is to
protect the accused from unnecessary Police harassment and hence it extends to the stage of
Police investigation apart from the trial procedure.
2.1.1. PROTECTION AGAINST COMPULSION TO BE A WITNESS
The protection contained in Article 20(3) is against compulsion “to be a witness” against oneself.
In M.P. Sharma v. Satish Chandra31, the Supreme Court gave a wide interpretation of the
expression “to be a witness” which was inclusive of oral, documentary and testimonial evidence.
The court also held that the protection not only covered testimonial compulsion in the court room
but also included compelled testimony previously obtained from him. In this case, it was held
that Article 20(3) was directed against self-incrimination by the accused person.
Article 20(3), has been carefully crafted to protect the accused from further self-incriminating
himself only if any statement of his might result in prosecution. It has been held in the case of
State of Bombay v. Kathi Kalu Oghad and Ors.32, that protection under Article 20(3) of the
constitution is available to a person against whom a formal acquisition has been made.
2.2 DYING DECLARATION IS UNRELIABLE
In every rape case, the evidence of the prosecutrix is a very crucial piece of testimony to prove
the case against the accused persons but in the present matter the dying declaration made by the
deceased is unreliable as it is suspicious in nature. However, a court is not required to accept
testimony of prosecutrix if her story is improbable and belies logic.33 Such an acceptance goes
against the hitherto recognized principle governing appreciation of evidence in a criminal
30
1978 AIR 1025: 1978 SCR (3) 608: 1978 SCC (2) 424.
31
1954 AIR 300: 1954 SCR 1077.
32
1961 AIR 1808: 1962 SCR (3) 10.
33
Rajesh Patel v. State of Jharkhand AIR 2013 SC 1497, (2013) 3 SCC 791, (2013) Cr LJ 2062 (SC).
matter.34 Nevertheless, a court must not assume that her testimony is always correct and free
from embellishment or exaggeration. It cannot be taken as gospel truth in all circumstances with
no exception.35 A court needs to remind itself that person accused of sexual assault also need its
protection from false acquisition or implication. False charges of rape, loaded with ill-motives
are not uncommon. Her statements must be examine in the light of the principles governing
testimony of injured witness and of the need to protect accuse from false implication.
Circumstances and facts of the case at hand which need to be scanned carefully would exhibit as
to whether the prosecutrix was raped or not.36
In the case of Sheikh Rafiq and Another v. State of Maharashtra37, considering the dying
declaration and the manner it was recorded, we cannot rely on the dying declaration made by the
deceased. Apart from this fact, there is no other evidence on record against the appellants in the
incidents. Further, the story of the prosecution appears to be improbable, the whole incident as is
being alleged to have happened, is wholly improbable and cannot be relied upon. For the
aforesaid reasons, we are of the view that no case is made out by the prosecution and the accused
are entitled for acquittal.
If corroboration was needed of the dying declaration made by the deceased on the ground that
the dying declaration was further corroborated by the fact that the accused had been absconding
and keeping out of the way and had been arrested under very suspicious circumstances. These
circumstances and the alleged absconding by the accused(s) are not so suspicious so as to afford
corroboration against them. As in the present matter, the three persons had not been named in the
dying declaration made by the deceased. Therefore, the conviction is not justiciable. In the case
of Ramnath Maduprasad v. State of Madhya Pradesh38in which it was held that in those
circumstances we are not prepared to say that the alleged absconding the accused could afford
sufficient corroboration, if corroboration of the dying declaration was needed. The decision of
the court in this case contains the following observations, which have been very strongly relied
upon, on behalf of the appellant, as having a great bearing upon the value to be placed upon the
34
Tameezuddin v. State (NCT) of Delhi (2009) 15 SCC 566 2009 (12) SCALE 303.
35
Ganga Singh v. State of Madhya Pradesh AIR 2013 SC 3008, (2013) SCC 278, (2013) Cr LJ 3966 (SC).
36
Raju v. State of Madhya Pradesh (2008) 15 SCC 132, AIR 2009 SC 858, Radha v. State of Madhya Pradesh
(2007) 12 SCC 57, 2007 Cri LJ 4704; Bbhishan v. State of Maharashtra (2007) 12 SCC 390, 2008 Cr LJ 721 (SC).
37
(2008)
38
AIR 1953 SC 420.
dying declarations:
“It is settled law that it is not safe to convict an accused person merely on the evidence furnished
on the basis of dying declaration without further corroboration because such a statement is not
made on oath and is not subject to cross-examination and because the maker of it might be
mentally or physically in a state of confusion and might well be drawing upon his imagination
while he was making the declaration. It is in this light that the different dying declaration made
by the deceased and sought to be proved in this case has to be considered.”
In the present matter, the deceased in the dying declaration only stated that she was raped thrice
but she could not name the persons accused and, therefore, they must be acquitted by the hon’ble
court.
2.3 THAT THERE WAS NO DIRECT AND CLEAR EVIDENCE
The chain of evidence is not complete in the present matter. As per the medical examination,
there were nail wounds on back and neck which were due to natural sex that she had with her
husband as it is given in the medical report that she was habitual to sex. Also, as per her dying
declaration, the rapists covered her face using thick piece of cloth in the hospital. This is a mere
suspicious assumption as the case rest solely on circumstantial evidence.
2.3.1 THAT CIRCUMSTANTIAL EVIDENCE ARE UNRELIABLE
The confession made by DW1 is unreliable as it is of low evidentiary value, lacks corroboration
and he is an interested witness. DW1’s confession cannot be seen as reliable as the confession by
a co-accused is considered as very weak form of evidence which is of a very low footing39.
The reason for this scrutiny and caution is being40:
(a) He has motive to shift guilt from himself

(b) He is an immoral person likely to commit perjuary on occasion
(c) He hopes for pardon or has secured it and so favours the prosecution
39
State of Punjab v. Bhajan Singh AIR 1975 SC 258.
40
Lal Chand v. State of Haryana AIR 1984 SC 226.
The Apex Court in the case of Badal Sheikh v. State41, held that the confession of co-accused
cannot be used against the accused unless the Court is morally satisfied on other evidence that
the accused is guilty.
It is well settled principle that where the case is mainly based on circumstantial evidence, the
court must satisfy itself that various circumstances in the chain of evidence should be established
clearly and that the completed chain must be such as to rule out reasonable likelihood of the
innocence of the accused. In the case of Mohan Lal v. State of U.P.42, when even a link breaks
away, the chain of circumstances gets snapped and other circumstances cannot in any manner
established the guilt of the accused beyond all reasonable doubt43.
When attempting to convict on circumstantial evidence alone the court must be firmly satisfied
of the following 3 thing:-
(a) The circumstances from which the inference of guilt is to be drawn must have fully been
established by unimpeachable evidence beyond a shadow of doubt
(b) The circumstances are of determinative tendency unerringly pointing towards the guilt of the
accused.
(c) The circumstances taken collectively are incapable of explanation on any reasonable
hypothesis except that of the guilt proved against him.
2.3.2 REASONABLE DOUBT
In light of all the aforementioned arguments, the accused humbly submits that there exists
reasonable doubt and hence he should be acquitted of the alleged crime. A reasonable doubt must
not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason and
common sense arising out of the evidence of the case44.
The prosecution’s arguments are leaning towards the fact that the crime ‘may have been
committed by the accused’, however they have failed to make the link between ‘may have
committed the crime’ and ‘must have committed the crime’ and that gap must be filled by the
41
1986 (2) Crimes-316.
42
AIR 1974 SC 1144.
43
Janar Lal Das v. State of Orissa 1991 (3) SCC 27: A. Jayaram & Ors v. State of A.P., AIR 1995 SC 2128.
44
Ramakanth Rai v. Madan Rai, CrLJ 2004 SC 36.
prosecution by legal, reliable and unimpeachable evidence before a conviction can be

sustained45.
Therefore, it is humbly submitted before this Hon’ble Court that the charge under section 376 of
the Indian Penal Code has not been made out due and so the accuseds should be acquitted of the
same.
45
IV. Nelson R. A., Indian Penal Code, p2905, (10 th Ed. 2008).
PRAYER
Wherefore, in the light of the issues raised, arguments advanced, and authorities cited, the
counsels for the respondents humbly prays to this Honorable Court to Declare:
A. That, Laxmidevi, Rohan and Vishnu Pandey are not liable of punishment under Section
498A, 304B, 34, 37 and 506 of the Indian Penal Code,1860.
B. That Rahul along with Vishnu Pandey and Jayesh are not liable of punishment under
Section 376 and 354 of the Indian Penal Code, 1860.
And
Pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience. And for this act of kindness, the Counsels for the Respondents shall duty bound
forever pray.
Date: S/d 1
Place: 2
(Counsels For The Respondents)

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JU-39

Jagannath University National Moot Court Competition-2017

IN THE HON’BLE SESSION COURT OF JAIPUR

VISHNU PANDEY AND ORS………………….…………………………..……..RESPONDENTS

Memorial on Behalf of the Respondents

COUNSELS FOR RESPONDENTS

1. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

1.3 THAT THE DYING DECLARATION IS NOT ADMISSIBLE AS EVIDENCE

2. WHETHER RAPE HAS BEEN COMMITTED OR NOT?

2.1 THAT THE CONFESSION MADE BY RAHUL WAS SELF-INCRIMINATING

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT2

2.2 DYING DECLARATION IS UNRELIABLE

2.3. THAT THERE WAS NO DIRECT AND CLEAR EVIDENCE

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT3

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT4

S.No. Case Citation

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT5

22 Amar Singh v. State of M.P 1996 Cr.LJ 1582 (MP)

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT6

 THE INDIAN EVIDENCE ACT, 1872.

JOURNALS AND REPORTERS

 All India Reporter

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT7

Read with Section 209:

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT8

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT9

Medical Report of Dhanlaxmi:

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT10

WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

WHETHER RAPE HAS BEEN COMMITTED OR NOT?

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT11

WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

WHETHER RAPE HAS BEEN COMMITTED OR NOT?

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT12

1. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITAL OF THE

SECTION 498A OF IPC.

1. The women must be married

1.2.1 MENS REA OF MURDER IS NOT ESTABLISHED

1.2.2 ACTUS REUS OF MURDER IS NOT ESTABLISHED

1.3 THAT THE DYING DECLARATION IS NOT ADMISSIBLE AS EVIDENCE

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT22

2. WHETHER RAPE HAS BEEN COMMITTED OR NOT?

(i) she was habitual to sex;

2.1 THAT THE CONFESSION MADE BY RAHUL WAS SELF-INCRIMINATING

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT23

2.1.1. PROTECTION AGAINST COMPULSION TO BE A WITNESS

2.2 DYING DECLARATION IS UNRELIABLE

2.3 THAT THERE WAS NO DIRECT AND CLEAR EVIDENCE

2.3.1 THAT CIRCUMSTANTIAL EVIDENCE ARE UNRELIABLE

The reason for this scrutiny and caution is being40:

(a) He has motive to shift guilt from himself

2.3.2 REASONABLE DOUBT

prosecution by legal, reliable and unimpeachable evidence before a conviction can be

(Counsels For The Respondents)

MEMORANDUM DRAWN AND FILED BY THE RESPONDENT29

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