TEAM NO: CL09 (A)

1st C.L. AGARWAL MEMORIAL MOOT COMPETITION, 2017

IN THE HON’BLE HIGH COURT

OF

RAJASTHAN

Raj Kumar
v.
State represented by the Inspector of Police
(State of Rajasthan)

MEMORAL OF THE APPELLANT

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1ST C.L. AGARWAL MEMORIAL MOOT COMPETITION, 2017

BEFORE THE HONOURABLE HIGH COURT OF RAJASTHAN

APPELLANT…………………………………………………….RAJKUMAR

Vs.

RESPONDENT………………………..…………………………...…STATE REPRESENTED

BY INSPECTOR OF POLICE

(STATE OF RAJASTHAN)

FOR THE OFFENCES CHARGED UNDER:

SECTION 498A, 304B & 302 OF INDIAN PENAL CODE, 1860 READ WITH 113B OF THE
INDIAN EVIDENCE ACT.

MEMORIAL ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS …………………………………………………………4
INDEX OF AUTHORITIES:
Table of cases…………………………………………………………………………...5
Books referred ………………………………………………………………………….6
Statutes …………………………………………………………………………………6
Websites ………………………………………………………………………………...6
STATEMENT OF JURISDICTION…………………………………………………….7
STATEMENT OF FACTS ……………………………………………………………..8
STATEMENT OF ISSUES …………………………………………………………….10
SUMMARY OF ARGUMENTS ……………………………………………………….11
ADVANCED ARGUMENTS
1. Whether the order given by the Family court is maintainable?............................12
a) Status of the case appealed by the deceased ………………………………..12
b) Whether the said properties are Stridhan as stated by Malini or jointly
entitled to both as stated by Raj Kumar. ........................................................13
c) Whether Raj Kumar has the right to access the joint bank locker
without Malini’s consent?.................................................………….… 14
2. Whether the dying declaration by the deceased is admissible?............................15
a) First dying declaration recorded by Rekha not admissible ……………. …..15
b) In case of multiple dying declarations ………………………………………17
c) Second dying declaration is not admissible …………………………………18
3. Whether the Appellant can be charged under sec 498-A, 302 & 304-B of
IPC, 1860 read with 113-B of the Indian Evidence Act, 1872? ..........................20

a) The Charge of 498-A is not proved beyond reasonable doubt …………20

b) There was no proof of dowry demand prior to the death of Malini ……22
c) Presumptions u/s 113-B of the Indian Evidence Act, 1872 is not
required to be drawn …………………………………………………….. 24
d) Prosecution has failed to establish the case beyond reasonable doubt
u/s 302 IPC ………………………………………………………………. 24

PRAYER ……………………………………………………………………………... …27

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LIST OF ABBREVIATION

AIR All India Report

SCC Supreme Court Cases

SC Supreme Court

Cri Criminal

MWN Madras Weekly Notes

MLJ Madras Law Journal

TNLR Tamil Nadu Law Reporter

DLT Delhi Law Times

IPC Indian Penal Code

Mad Madras

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INDEX OF AUTHORITIES

I TABLE OF CASES
1. Balwant Singh (dead) vs. Jagdish Singh &Ors, 8 July, 2010.
2. Smt. Rashmi Kumar Vs Mahesh Kumar Bhada, 1997 2 SCC page 397.
3. Ram BihariYadav v State of Bihar, AIR 1988 SC 1850
4. Bablevs State of Chattisgaeh, AIR 2012 SC 2621
5. Patel HiraLalJoita Ram vs. State of Gujarat, AIR 2000 SC 2944.
6. Narain Singh vs. State of Bihar 1961 SC 137.
7. SamadhanDhudakaKoli vs. State of Maharashtra AIR 2009 SC 1059 (1063)
(para 16)
8. Roop Ram vs Sate of M. P., (2011) 14 SCC 577
9. State of M.P. vs. Mohan Lal, (1996) 9 SCC 18.
10. Ranjith Singh vs. State of Punjab, (2006) 13 SCC 130.
11. Balbir vs. Vazir and Ors, 2014 [3] MWN Cri page 26.
12. NallamVeeraStayanandamvs Public Prosecutor, (2004) 10 SCC 769.
13. MannulalSahu vs. state of M.P., (2005) 10 SCC 259.
14. Shudhakar vs. State of M.P., (2012) 3 SCC (Cri) 430.
15. Om Pal Singh vs. State of U.P., (2010) 14 SCC 200; (2011) 3 SCC (Cri) 719.
16. Murugesan vs. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69.
17. Jose vs. State of Kerala, (2013) 14 SCC 172.
18. State of T.N. vs. Karuppasamy, (2008) 16 SCC 350: (2010) 4 SCC (Cri) 286.
19. State of Haryana vs. Inder Singh and Ors, 2002 M.L.J Cri page 760 SC.
20. State of Rajasthan vsShravan Ram, (2013) 12 SCC 255: (2013) 4 SCC (Cri
)129.
21. State Of Himachal Pradesh vsNikku Ram And Ors, 30 August, 1995, (crl.) 984
of 1995
22. Smt. Neera Singh vs The State (Govt. Of Nct Of Delhi),23 February, 2007: 138
(2007) DLT 152, I (2007) DMC 545.
23. Premkanwar v State of Rajasthan, AIR 2009 SC 1242 at p. 1246.
24. AIR 2012 SC 2297. Dr. B.S. Chauhan and Dipak Mishra JJ.
25. InderSain and Anr. v. The State, (1981) Crl. L.J. 1116.
26. Wattan Singh &Anrvs State of Punjab,AIR 2004 SC pg 1607.
27. ShaikhRafiq&Anr vs. Sate of Maharashthra,2008 [1] TNLR Pg 184.

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28. Kamla v. State of Punjab AIR 1993 Supreme Court 374.

29. Khushal Rao v. The State of Bombay 1958CriLJ106.

II BOOKS REFERRED
1. Abhinanadan Malik.,Vepa P. Sarathi’s Law of Evidence (7th edition)
2. KD Gaur., Indian Penal Code (5th edition)
3. Dr. Gokulesh Sharma., Indian Evidence Act
4. H M Prasad., The Code of Criminal Procedure (21st edition)
5. C.J. M. Monir., The Law of Evidence (9th edition)
6. Versha Vahini., The Indian Penal Code

III STATUTES REFERRED

1. INDIAN PENAL CODE,1860
2. INDIAN EVIDENCE ACT, 1872
3. CRIMINAL PROCEDURE CODE,1973
4. THE DOWRY PROHIBITION ACT, 1961
5. THE CODE OF CIVIL PROCEDURE, 1908
6. BANKING REGULATION ACT, 1949

IV WEBSITES REFERRED
1. http://www.indiankanoon.com
2. http://www.drugsindia.com.
3. http://www.myleagaladvisor.com.
4. http://legalservicesindia.com.
5. http://Lawmirror.com.
6. http://kaanoon.com.

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STATEMENT OF JURISDICTION

It is humbly submitted that the Appellant has approached the Hon’ble High Court of
Rajasthan u/s 482 of the Criminal Procedure Code, 1973 and u/s 151 of the Civil Procedure
Code, 1908. Both the provisions states the saving of inherent powers of High Court. It reads:

“Nothing in this Code shall be deemed to limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of
justice.”

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STATEMENT OF FACTS

1) Mr. Raj Kumar was running a successful property dealing business in Kuru, Rajasthan. In
2011, he got married to Malini as per Hindu rites and ceremonies. They had a daughter in 2012.
2) In September. 2013, R.K’s told his wife that his business suffered a major loss. Malini offered
to sell the gold which was kept in a joint bank locker.
3) The said gold ornaments and other gifts were gifted to her by her parents, in-laws and other
relatives from both the sides.
4) RK was against selling the gold and demanded Malini to a sum of 20 lakhs from her parents for
which she showed reluctance to do so. This agitated RK and insisted her to meet the demand.
Later, on several occasions, they had heated arguments where he even went to the extent of
saying that her parents have not given him enough at the time of marriage.
5) He refused to answer Malini’s queries about the business when she asked about it after 2
months, for which he told her that since she has not agreed to his proposal, she has no right to
inquire about it.
6) On December, 2013, when Malini went to open the locker, she found out that, five months ago
on 7/07/2013, most of the gold ornaments were removed from the locker by R.K.
7) Upon learning this, she was dismayed and shocked. She got back and confronted Raj Kumar
about the same. He told her that since it was a joint locker and most of the ornaments at the
time of the marriage were given to her by his parents, therefore, he had an equal right over the
said property. The issue became a bone of contention between them and their relations started
becoming strained.
Case at the Family Court
8) Disappointed by the said events, Malini approached a law consultancy firm and sought their
advice regarding the issue. She was advised that the gold ornaments come within the purview
of Stridhan. The consultants in view of the strained relations suggested her to take matter to a
Family Court.
9) The Family Court gave a decision which was in favour of husband relying upon the following
facts:
 That bank locker being a joint locker could be operated by either of them.
 That there was sufficient evidence to suggest that after selling the ornaments, the
husband used the money for stabilizing business which was again in the interest of
the family.

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10) As an obiter dictum, the court stated that in such cases, where husband and wife are
having joint lockers, better mode is to operate the locker by mutual consent. However, in
the said case wife had already made an offer to the husband expressing her intention of
selling the gold kept in the locker for stabilizing the financial position of the family.
Aggrieved by the decision of the Family Court, Malini filed an appeal with the High
Court of Rajasthan with a contention that gold ornaments that. come within the purview
of Stridhan can only be used and disposed of by wife. The case is pending before the
High Court of Rajasthan.
Occurrence of the Incident
11) In October,2015, both Raj Kumar and Malini along with their daughter, decided to spend
DurgaPooja vacations in a hill station with the objective to have reconciliation. On the
night of 10/10/2015, at around 2:00 AM, they heard some noise coming from Malini and
Raj Kumar’s room. Upon hearing the screams, Rekha, her husband Vikram and the staff
of the guest house rushed towards the room.
12) The door of their room was broke open and Malini was found burning in flames. Raj
Kumar and their daughter were found lying unconscious in the next room. A statement
was given by Malini wherein she said that her husband had tried to burn her by pouring
petrol. The said statement was recorded by Rekha.
13) In the hospital, Malini gave another statement as second dying declaration in the presence
of doctors and police personnel on guard that she herself had poured petrol on her body
and had set herself on fire.
14) Next morning, due to 80% burns on her body, Malini succumbed to her injuries and died.
Her husband and daughter regained consciousness and informed to the authorities that
both of them had consumed milk after dinner and got unconscious. Thus, they pleaded
that they had no knowledge of the incident.
15) The medical reports of Malini, Raj Kumar and their daughter stated that:
 Death of Malini was caused by burns.
 High dose of zolpidem was found in the blood of Raj Kumar and his daughter.
16) The police registered the case in view of the gathered circumstantial evidence and
medical reports.The investigating officer in the final police report mentioned that Raj
Kumar had himself consumed sleeping pills and made her daughter do the same. On that
basis, police officers after completing the investigation filed a charge-sheet under section
173 of Criminal Procedure Code, 1973.

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STATEMENT OF ISSUES

I
Whether the order given by the Family Court is maintainable?

II
Whether the dying declaration by the deceased is admissible?

III
Whether the Appellant can be charged under sec 498-A, 302&304-B of IPC, 1860 read
with113-B of the Indian Evidence Act, 1872?

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE ORDER GIVEN BY THE FAMILY COURT IS

MAINTAINABLE?

It is humbly submitted that the decision given by the Family Court in favor of the Appellant
is to be maintained. The facts on the basis on which judgment was given are just and
reasonable. The facts being that a) bank locker being a joint locker could be operated by
either of them, and b) there was sufficient evidence to suggest that after selling the
ornaments, the husband used the money for stabilizing business which was again in the
interest of the family.

ISSUE II: WHETHER THE DYING DECLARATION BY THE DECEASED IS

ADMISSIBLE?

It is humbly submitted that the two statements in the given facts of the case are contradictory
in nature. There is no corroborative evidence to validate either of the statement as dying
declaration. They amounts to infirmity and are inadmissible in court.

ISSUE III: WHETHER THE APPELLANT CAN BE CHARGED UNDER SEC 498-A,
302 &304-B OF IPC, 1860 READ WITH SEC113-B OF THE INDIAN EVIDENCE
ACT, 1872?

It is humbly submitted that the order of conviction as recorded by the Sessions Court is based
mainly onconjectures, surmises and inadmissible evidences. The deceased in her dying
declarations never deposed anything about the alleged demand of dowry and alleged dowry
harassment by the appellant. It is nowhere said in facts that appellant had treated the deceased
with cruelty or harassed her in relation to dowry. Hence, it is very clear that there was no
dowry harassment or cruelty on the part of appellant.

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ADVANCED ARGUMENTS

ISSUE I: WHETHER THE ORDER GIVEN BY THE FAMILY COURT IS

MAINTAINABLE?

The Family Court’s decision which was in favour of the husband must be upheld in the
appeal as well. The court was right to rely upon the following facts:
i) The Bank Locker being the joint locker could be operated by either of them.
ii) That there was sufficient evidence to suggest that after selling the ornaments, the
husband used the money for stabilizing the business which was again in the interest of
the family.
(A) Status of the case appealed by the deceased.
Here, the case was originally filed by Malini in the Family Court based on the contention that
gold ornaments that come within the purview of Stridhan can only be used and disposed off
by wife. However, aggrieved by the decision of the Family Court, she filed an appeal in the
High Court of Rajasthan. Unfortunately, Malini was found burning in flames on 10/10/2015.
The validity of the appeal is held by Order 22 Rule 3 of the C.P.C read along with Order 22
Rule 11 of C.P.C1.
Order 22 Rule 3 of C.P.C reads:
“Procedure in case of death of one of several plaintiffs or of sole plaintiff.- (1) Where one
of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or
plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives,
the court, on an application made in that behalf, shall cause the legal representative of the
deceased plaintiff to be made a party and shall proceed with the suit2.”
Read with Order 22 Rule 11 of C.P.C reads:
“Application of order to appeals.- In the application of this order to appeals, so far as may
be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a
respondent, and the word “suit” an appeal.”
From the above it is understood that the appeal can be maintained even after the death of the
appellant. Either the parents or spouse or lineal descendant can proceed with the case. Here,
the case is against the husband and the daughter is a minor as well as the facts are silent about

1
Code of Civil Procedure, 1908
2
Balwant Singh (dead) vs. Jagdish Singh &Ors, 8 July, 2010.

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the existence of any other legal representative, it is assumed that the parents of Malini shall
proceed with the case.
The Case of Malini and Raj Kumar about the properties of Stridhan has to be decided by the
appellate court as with the following discussions.

(B) Whether the said properties are Stridhan as stated by Malini or jointly entitled to
both as stated by Raj Kumar?
STRIDHANA – SAUDAYIKA
According to the text of Katyayana3, what is obtained by a married woman from her brother
or her parents is her Saudayika. Reference is made to Chandeswara, who says that the words
"from her brother or her parents" are merely illustrative and a gift from affectionate kindred
would include a gift from other persons. Misra, instead of saying from other persons, says
"from her own kindred, or from the relations of her lord." Reference is made to Jimutavahana
who says :- "That which is received from affectionate kindred (sudaya), is the gift of
affectionate kindred (saudayika)". Then Raghunandana's commentary is:-"That which is
received from an affectionate father, mother, or husband, or from the kindred of these, is a
gift from affectionate kindred4."
Also, inSmt. Rashmi Kumar Vs Mahesh Kumar Bhada5, the meaning of Stridhana was stated
as properties gifted to the bride before the marriage, at the time of marriage or at the time of
giving farewell or thereafter are termed as her Stridhana properties. It is her absolute
property6 with all rights to dispose at her own pleasure. The husband has no control over her
Stridhana has a moral obligation to restore the same or its value to his wife.
From the above said judgment the Hon’ble Apex Court pointed that the husband can
use it during the time of his distress. Here, Raj Kumar had evidence that he used the money
for the interest of the family.7 In the facts it is also stated that the gifts were gifted to her by
her parents, in- laws and other relatives from both the sides. So, the bank locker can be
operated by either of them.

3
Katyayana was a Sanskrit, grammarian and Vedic priest who lived in ancient India.
4
Henry Thomas Colebrooke, Digest of Hindu Law, pages 594 – 595,
5
1997 2 SCC page 397.
6
Section 14 of Hindu Succession Act, 1956.
7
Fact dossier 7

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(C) Whether Raj Kumar has the right to access the joint bank locker without
Malini’s consent?
The facts of the case are silent regarding the name of the bank as well as the mode to
access the joint locker. The Joint hirers being the husband and wife are bound u/s
45ZE of the Banking Regulation Act, 1949 for the release of contents of safety
lockers8. Generally, safe deposit lockers can be hired by anyone solely or jointly.
Bank lockers can be rented on single as well as joint basis. If there are joint holders
then all the joint holders have to particularly mention the kind of ownership
agreement they are getting into (like either or survivor, former or survivor etc).
In case of joint lockers there must be an agreement before hand between the
joint hirers to access the joint locker. Such an agreement must contain the consent
among the joint hirers allowing each other to access the locker contents without either
ones permission. It is understood from the facts of the case that Malini and Raj Kumar
had hired the bank locker jointly. The mode to access the locker is silent in the facts.
Malini’s attempt to open the locker to sell the gold ornaments “on her own9” can be
interpreted to mean that both the husband and wife had the right to access and
withdraw from the joint locker “on their own”. Moreover, the intention of the husband
and the wife to use the gold ornaments was for the same purpose, eventhough the
timing of the withdrawal of the gold ornaments were different. The husband had used
the gold for the purpose of investing it in his business which was in the interest of the
family. There was sufficient evidence to establish the same10. Infact, Malini had
voluntarily offered to sell the same gold in dispute11.The wife went to open the locker

8
45ZE. Release of contents of safety lockers.—

1) Where an individual is the sole hirer of a locker from a banking company, whether such locker is
located in the safe deposit vault of such banking company or elsewhere, such individual may nominate
one person to whom, in the event of the death of such individual, the banking company may give
access to the locker and liberty to remove the contents of the locker.
2) Where any such locker is hired from a banking company by two or more individuals jointly and under
the contract of hire, the locker is to be operated under the joint signatures of two or more of such hirers,
such hirers may nominate one or more persons to whom, in the event of the death of such joint hirer or
hirers, the banking company may give, jointly with the surviving joint hirer or joint hirers, as the case
may be, access to the locker and liberty to remove the contents of such locker.
9
Fact dossier 6
10
Fact dossier 7
11
Fact dossier 1

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for the same purpose12. Therefore, the bank joint locker can be operated by either of
them. Also, the decision of the Family Court must be upheld.

ISSUE II: WHETHER THE DYING DECLARATION BY THE DECEASED IS

ADMISSABLE?

It is humbly submitted that the two statements in the given facts of the case are contradictory
in nature. There is no corroborative evidence to validate either of the statement as dying
declaration. They amounts to infirmity and are inadmissible in court.

A Dying Declaration is statement made by a person who is dead; as to cause of his death or
as to any circumstances of transaction which resulted in his death, in cases in which his death
comes into question, such statement are relevant u/s 32 of Indian Evidence Act, 1872,
whether the person who made there was or was not, at the time when they were made, under
expectation of death and whatever may be the nature of proceeding in which the cause of his
death comes into question13. Oral Dying Declaration is an exception to hearsay evidence14.
Under section 32(1)15 two categories of statements are made admissible in evidence. They
are:

i) Cause of death.
ii) Statement as to any circumstances of transaction which resulted in death.16

(A) First dying declaration recorded by Rekha is not admissible

i) Cause of death:This clause17 lays down that when the statement is made by a
person as to the cause of his death, or as to any of the circumstances of
transaction which resulted in his death, his statement would be relevant in a
case in which the cause of his death is a point at issue. A girl was ravished
soon after the occurrence she committed suicide by setting fire to her body.

12
Fact dossier 9
13
Ram BihariYadav v State of Bihar, AIR 1988 SC 1850
14
Bablevs State of Chattisgaeh, AIR 2012 SC 2621
15
Clause (1) of section 32 refers to dying declaration of Indian Evidence Act, 1872.
16
Patel HiraLalJoita Ram vs. State of Gujarat, AIR 2000 SC 2944.
17
Supra note(13).

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Her statement about rape was held not admissible as the rape on the girl could
not be said to cause of her death.18

As per facts of our case the first dying declaration given by Malini recorded by
Rekha stated that Raj Kumar had tried to burn her by pouring petrol.The cause
of her death is due to the 80% burns she suffered19 that led to her death on
11/10/2015. Therefore, it is evident that the Declarant died of the injury.

However, in this case the Declarant had given another statement which is
contradictory to the first one. Consistency in dying declaration is a relevant
factor and cannot be ignored. When a contradictory and inconsistent stand is
taken by the deceased herself in different dying declarations, they should not
be accepted on their face value. In any event, according to the rule of prudence
corroboration must be sort from other evidence brought on record.20

ii) No Medical Certificate: It is a settled law that the dying declaration can be
accepted only when the same was made with conscious and fit condition. But
in this case the dying declaration given is totally not supported with medical
fitness certificate and also never stated that the deceased was in sound
conscious to depose dying declaration. Though they state that the deceased
was in sound mind and fit condition without medical evidence and certificate
is not safe to rely those dying declarations as per law. Further, Rekha is a law
teacher and having more interest on the deceased. Hence, she is an interested
witness and her evidence is subject to scrutiny with care and caution manner21.
iii) Inconsistency of dying declaration: a dying declaration can form the sole basis
for conviction though the court may look for corroboration.22 In Ranjith Singh
vs. State of Punjab23, it was laid down that if there is an inconsistency between
the two dying declaration then the court should apply caution. But, the
consistent part can be taken note of. The court also held that corroboration is

18
Narain Singh vs. State of Bihar 1961 SC 137.
19
Fact dossier 14
20
SamadhanDhudakaKoli vs. State of Maharashtra AIR 2009 SC 1059 (1063) (para 16)
21
Roop Ram vs Sate of M. P., (2011) 14 SCC 577, oral statement to an interested witness, other descrepancies
were also there. Benefit of doubt.
22
State of M.P. vs. Mohan Lal, (1996) 9 SCC 18.
23
(2006) 13 SCC 130.

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required in the event of suspicion as regards, correctness or otherwise of the

dying declaration.

The case in hand has two dying declarations which are contradictory and so loses
its face value. There is no witness who saw the said act of pouring petrol on the
deceased victim by the appellant and no eye witness for the said incident. At the
time of incident, they were staying in a guest house and were also accompanied by
one of their friends Rekha and her husband, Vikram. On the night of 10/10/2015,
at around 2:00 AM, they heard some noise coming from Malini and Raj Kumar’s
room. Upon hearing the screams, Rekha and her husband and the staff of the guest
house rushed towards the room. The door was found locked and the same was
broke open by Vikram, Rekha and staff of the guest house, Malini was found
burning in flames. Raj Kumar and their daughter were found lying unconscious in
the next room. Therefore, there is no eye witness to substantiate the first dying
declaration given by Malini. Hence, there is no corroborative evidence to sustain
the first dying declaration. In the case of Balbir vs. Vazir and Ors24, when there is
no corroboration it is inconvincible that the deceased who was in great pain due to
serious bullet injuries would give erroneous details that would render the dying
declaration and in absence of corroboration of the same, no conviction could be
based thereon. Therefore, the first dying declaration is inadmissible due to the lack
of corroborative evidence and inconsistency in the statements.

(B) The second dying declaration is also inadmissible

i) No Credibility and reliability: The second dying declaration given by the
deceased was in the presence of doctors and police personnel on guard 25. The
declaration stated that the deceased had herself poured petrol on her body and
set herself on fire. The declaration satisfies the conditions in section 32(1) of
the Indian Evidence Act. However, the credibility and reliability of the same is
in question to convict the accused. It is the settled law that the dying
declaration can be accepted only when the same was made with conscious and
fit condition. The deceased sustained more than 80% burn injuries as per the
doctor medical report. Hence, the fitness of the deceased to give dying
declaration is very difficult in position and though the doctor gave certificate
24
2014 [3] MWN Cri page 26.
25
Fact dossier 13

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the same is unsafe to rely. The declaration does not provide truthfulness
regarding the circumstances involved in this case. It is vague and doubtful.
Therefore, not admissible in the court of law.
ii) No corroborative evidence: Though the first dying declaration can be relied as
per law and the same has to be accepted only with corroborative evidence in
this case. Here, the second declaration by the deceased does not state as to
how the petrol was possessed by her in the guest house and in what manner
the same was received and bought. Further, there is no evidence that whether
the container of petrol and other materials ceased by the police are produced
before the court. The deceased also fails to mention that whether the petrol
was poured from a glass bottle or plastic bottle or iron container.

Hence, both the dying declarations are totally contradictory and cannot be believed.
But the lower court accepted the first dying declaration as true against the law. The
second declaration which supported with doctor’s certificate stated that she herself
poured the petrol. The earlier dying declaration is not free from suspicious
circumstances. There is lot of chances for tampering with the first recorded dying
declaration by Rekha and Vikram as they already knew about Malini and Raj
Kumar’s earlier case26 and separation for giving such false declaration. In State of
Haryana vs. Inder Singh and Ors27, the Supreme Court stated that in a criminal trial,
when it comes to appreciation of evidence where two views are possible the one
which is favourable to the accused has to be accepted. Since, both the declarations fail
to establish truthfulness of its own statements, the said declarations are held to be
inadmissible in the court.

(C) In case of multiple dying declarations

In the matter of Smt.Kamla v. State of Punjab28, a similar issue pertaining to

inconsistent dying declarations made by the deceased came up before the Supreme
Court and while dealing with the aforesaid issue, the Supreme Court held thus:
"It is well-settled that dying declaration can form the sole basis of conviction

26
Fact dossier 10
27
2002 M.L.J Cri page 760 SC.
28
AIR 1993 SC 374

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provided that it is free from infirmities and satisfies various tests, (vide
Khushal Rao v. The State of Bombay29). The ratio laid down in this case has
been referred to in a number of subsequent cases with approval. It is also
settled in all those cases that the statement should be consistent throughout if
the deceased had several opportunities of making such dying declarations, that
is to say, if there is more than one dying declaration they should be consistent.
If a dying declaration is found to be voluntary, reliable and made in fit mental
condition, it can be relied upon without even any corroboration. In a case
where there are more than one dying declaration if some inconsistencies are
noticed between one and the other, the court has to examine the nature of the
inconsistencies namely whether they are material or not. In scrutinising the
contents of various dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding facts and
circumstances.
On careful examination of both the dying declaration and Applying the ratio of the
case of Kamla v. State of Punjab (supra), in view of there being two contradictory
dying declarations, one being in favour of the appellant, we do not find it safe to
sustain the conviction of the appellant on sole basis of the dying declaration and we
are of the view that the appellant is entitled to benefit of doubt.
Thus, in case of multiple dying declarations, each dying declaration has to be considered
independently on its own merit so as to appreciate its evidentiary value and one cannot be
rejected because of the contents of the other. In case where there is more than one dying
declaration, it is the duty of the court to consider each one of them in its correct perspective
and satisfy itself which one of them reflects the true state of affairs.30
In a case involving multiple dying declarations which gave different versions to the
Supreme Court, regarded them doubtful in their truthfulness31.
The Supreme Court stated an important test in such cases, i.e. to see which dying
declaration is supported by other evidence the declaration which inculcated her husband, was
supported by other evidence32. As per our case there is second dying declaration which was

29
1958CriLJ106
30
NallamVeeraStayanandamvs Public Prosecutor, (2004) 10 SCC 769.
31
MannulalSahu vs. state of M.P., (2005) 10 SCC 259: 2005 SCC (Cri) 1510, three contradictory declarations,
not reliable.
32
Shudhakar vs. State of M.P., (2012) 3 SCC (Cri) 430; Om Pal Singh vs. State of U.P., (2010) 14 SCC 200;
(2011) 3 SCC (Cri) 719, medical certificate is a rule of caution only. Its absence is not a ground for rejection;
Murugesan vs. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69; Jose vs. State of Kerala, (2013) 14 SCC 172;

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given by the deceased on the same day. Second dying declaration33 stated that the deceased
had set herself on fire. These declarations were contradictory and were detailed in the FIR
report34. Therefore, keeping reliance on either of the dying declaration to hold the accused
guilty is against the law.

ISSUE III: WHETHER THE APPELLANT CAN BE CHARGED UNDER SEC 498-A,
302 &304-B OF IPC, 1860 READ WITH SEC113-B OF THE INDIAN EVIDENCE
ACT, 1872?

It is humbly submitted that the lower court had decided the case and convicted the appellant
u/s 302, 304-B& 498-A of I.P.C only on the base of dying declaration and circumstantial
evidence. The sections 304-B & 498-A of the IPC and sections 113-A & 113-B of the
Evidence Act are woven by the framers having connection with eachother, so that the
accused should not escape from the eye of law.

The above provisions attracts the presumptions stated u/s 113-A& 113 B of the Indian
Evidence Act, 1872.

(A) The Charge of 498-A is not proved beyond reasonable doubt

There is no dispute that Malini died within 7 years of her marriage. Under thenewly
inserted Section 113-A of the Evidence Act, presumption as to commission of the offence
under Section 306 (abetment of suicide) would be available only on the proof that
Maliniwassubjected to cruelty by the appellant within the meaning of the newly inserted
Section 498-A, IndianPenal Code. So, it is necessary to consider first whether the charge
under Section 498-A has been proved beyond reasonable doubt. Section 498-A is as follows:

“Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, 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 fine.

State of T.N. vs. Karuppasamy, (2008) 16 SCC 350: (2010) 4 SCC (Cri) 286, where the medical report of fitness
was available to the Magisterate, it was not necessary for him to make an independent inquiry.
33
Fact dossier 13
34
Fact dossier 16

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Explanation-for the purposes of this Section, "cruelty ' mean-(a) any willful conduct which is
of such a nature as is likely to drive the woman to commit suicide or to cause graveinjury or
damage to life, limb or health (whether mental or physical) of the woman; or(b)-harassment
of the woman where such harassment is with a view to coercing her or any person relatedto
her to meet any unlawful demand for any property or valuable security or is on account of
failureby her or any person related to her to meet such demand".”

The appellant had neither made an unlawful demand nor coerced her or her relative to meet
any such unlawful demand from the family of the deceased. The demand of 20Lakhs made by
appellant was more of a request to invest in his business so that once the business was
stabilized, he could return the money with interest to her family. Such a promise to pay back
the money comes within the purview of borrowing rather than an unlawful demand.
Explanation (b) is not attracted in this case inasmuch as there is no allegation of harassment
of the deceased with a view to coercing her or her relative to meet any unlawful demand for
any propertyor valuable security or for failure to meet such demand. So, the question for our
consideration is whether the deceased was subjected to cruelty by the appellants within the
meaning of Explanation(a) of Section 498-A.

The evidence adduced by the prosecution consists mainly of the alleged statements made by
the deceased in her two contradictory dying declarations35.Contradictions and discrepancies
in the statements of the married woman who was put to death by burning made her
declarations not to be reliable36. Also, the deceased in her dying declarations never deposed
anything about the alleged demand of dowry. There was no testimony or reports of the
deceased being subject to mental and physical torture by her husband. It was held in AIR
1996(Supreme Court) 6737 thattaunting for not bringing sufficient dowry is distinct from
demand of dowry and should not beconfused with. Though taunting for bringing insufficient
dowry is also an uncivilized act but doesnot come within the purview of Section 498-A,
sufficient to constitute the offence i.e. the cruelty tothe complainant with respect to not
fulfillment of demand of dowry38. There is not a singleallegation that except for the alleged
taunting the complainant was ever harassed with respect tofurther demand of dowry. Hence,
the prima facie case under Section 498-A is not made out againstaccused.

35
Fact dossier 16
36
State of Rajasthan vsShravan Ram, (2013) 12 SCC 255: (2013) 4 SCC (Cri )129.
37
State Of Himachal Pradesh vsNikku Ram And Ors, 30 August, 1995, (crl.) 984 of 1995
38
Smt. Neera Singh vs The State (Govt. Of Nct Of Delhi),23 February, 2007: 138 (2007) DLT 152, I (2007)
DMC 545

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(B) There was no proof of dowry demand prior to the death of Malini
The Court of Session has viewed the case at hand to be dowry death and so has
convicted the accused u/s 302, IPC along with 304-B, IPC so that he can get either life
imprisonment or death sentence.
Inorder to seek conviction u/s 304-B, IPC against a person for the offence of dowry
death, the prosecution is obliged to prove that:
(a) the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances;
(b) Such death should have occurred within seven years of her marriage;
(c) The deceased was subjected to cruelty or harassment by her husband or any
relative of her husband;
(d) Such cruelty or harassment should be for, or in connection with, any demand
for dowry; and
(e) To such cruelty or harassment the deceased should have been subjected soon
before her death.

The term dowry has not been defined in the IPC. However, section 304-B, IPC in
Explanation clause has affirmed that ‘dowry’ shall have the same meaning as defined in
section 2(1) of the Dowry Prohibition Act, 1961, which states that ‘dowry’ means any
property or valuable security given or agreed to be given either directly or indirectly-

(a) By one party to a marriage to the other party to the marriage, or

(b) By the parent of either party to a marriage or by any other person, to the either party
to the marriage or to any other person.
At or before or any time after the marriage in connection with the marriage of the said
parties, but does not include dower or mahr in the case of persons to whom the Muslim
Personal Law (Shariat) applies. However, customary payments and gifts are not dowry as
held by Supreme Court on 31st January, 200839. The Apex Court in Rohtash v State of
Haryana, held that demand of money for establishing business is not necessarily a dowry
demand40.

Moreover, for the application of Section 304-B, IPC in this case, the demand of dowry
should have been made prior to her death.Firstly, as per the facts of our case, the

39
K.D Gaur, Indian Penal Code, pg 554, (5 th Edition, Gurugaon)
40
AIR 2012 SC 2297. Dr. B.S. Chauhan and Dipak Mishra JJ. Delivered the judgement.

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appellant had only merely suggested the procurement of 20 lakhs from his in-laws which
would be returned to them once the business got stable. Raj Kumar required the money
due to the major loss suffered in business on September, 2013. Such a demand does not
amount to ‘dowry’ rather it amounts to ‘borrowing’ as the appellant had assured Malini in
his statement that he would return back the money once the business was stable again41.

Secondly, the appellant had merely taunted the deceased for not bringing sufficient
dowry. Not bringing sufficient dowry is distinct from demand of dowry and should not be
confused with. In InderSain and Anr. v. The State42,it was held that to constitute dowry
the valuables demanded or given must be as "consideration for the marriage". The learned
Judge then opined that only those articles are dowry which are given or agreed to be
given for solemnization of marriage; and anything given after marriage is only for a
happy matrimonial relationship and would not be dowry, As the demands in the present
case had been made after the marriage, the trial court concluded that the same would not
be dowry.

Thirdly, to invoke Section 304-B, the deceased must have been subjected to cruelty
relating to dowry demanded soon before her death. In the present case, as stated in the
above paragraphs, the appellant had not treated the deceased with cruelty or with any sort
of physical or mental torture that amounts to cruelty. The appellant had money problem to
uphold his business and required financial assistance from his wife and her family.
Irrespective of her refusing to help him with the borrowing, they had only few quarrels
regarding the issue. Ordinary domestic quarrels do not amount to torture. The deceased
and the appellant had gone to the hill station with the intention of reconciling and
spending time together. Infact, in her first dying declarations the deceased did not
mention anything about her husband demanding dowry or torturing her of any sort
relating to dowry. This followed by her second dying declaration which is contradictory
to her first declaration renders the assumption of her being subject to cruelty prior to her
death as unreliable and invalid.

41
Fact dossier 3
42
(1981) Crl. L.J. 1116

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(C) Presumptions u/s 113-B of the Indian Evidence Act, 1872 is not required to be
drawn
Section 113-B of Indian Evidence Act, 1872 reads that:
“Presumption as to dowry death.—When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death
such woman has 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.”
A conjoint reading of Sec 113-B of the Evidence Act and Sec 304-B, I.P.C shows that
there must be material to show that soon before her death the victim was subjected to
cruelty or harassment. The determination of the period which can come within the
term ‘soon before’ is left to be determined by the courts, depending upon the facts and
circumstances of each case. Suffice, however, to indicate that the expression ‘soon
before’ world normally imply that the interval should not be much between the
concerned cruelty or harassment and the death in question. There must be existence of
a proximate and live-link between the effect of cruelty based in dowry demand and
the concerned death which is required to be proved by the prosecution.43.No
presumption under Section 113 B of the Evidence Act would be drawn against the
accused if it is shown that after the alleged demand, cruelty or harassment the dispute
stood resolved and there was no evidence of cruelty, and harassment thereafter.

As the charge under Section 498-A, Indian Penal Code has not been proved there is no
question of drawing presumption under Section 113-B of the Evidence Act about commission
of any offence under Section 304-B, Indian Penal Code.

(D) Prosecution has failed to establish the case beyond reasonable doubt u/s 302 IPC

It is humbly submitted that the appellant, Raj Kumar, is not guilty under section 498-A, 304-
B & 302 of the Indian Penal code. It is already argued in the above issue that the deceased
was not subjected to any form of cruelty or harassment with regard to demand of dowry.
Moreover, for applying the section 302 of the Indian Penal Code, the prosecution must
establish the case beyond reasonable doubt against the accused.

43
Premkanwar v State of Rajasthan, AIR 2009 SC 1242 at p. 1246

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The following conditions must be fulfilled before a case against an accused based on
circumstantial evidence can be said to be fully established:

(a) The circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned 'must' or 'should' and not 'may be'
established;
(b) The facts so established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
(c) The circumstances should be of a conclusive nature and tendency;
(d) They should exclude every possible hypothesis except the one to be proved; and
(e) There must be a chain of evidence to complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in
all human probability the act must have been done by the accused.

The evidence in this case consists of two dying declarations of the deceased Malini. They are
contradictory and unreliable. It is settled law that the dying declaration can be made accepted
only when the same was made with conscious and fit condition but in this case the dying
declaration given before Rekha is totally with medical fitness certificate and also Vikram,
staff of the guest house also never stated that the deceased was sound and conscious to
depose the dying declaration. Though they stated the deceased was in sound mind and fit
condition without medical evidence and certificate is not safe to rely on those dying
declaration as per law. Further, at the time of incident, the father and their daughter were
found unconscious in the next room. The medical report received in the next day stated that
both the accused and their daughter had high dose of Zolpidem found in their blood44. Both
of them regained consciousness and informed to the authorities that both of them had
consumed milk after dinner, offered by Malini and got unconscious 45. They pleaded that they
had no knowledge of the incident. Zolpidem is one of 13 hypnosedative medications
approved by the FDA for treatment of insomnia46. Eventhough the accused is a habitual taker
of the drug, high dose of the drug would not render his body to resist the effects of the drug.
Assuming, he is able to resist the effects of the drug, there is no proof to state that the

44
Fact dossier 14
45
Fact dossier 15
46
Dolder CR, Nelson MH: Hypnosedative-induced complex behaviors; incidence, mechanisms and
management. CNS Drugs 22:1021–36, 2008

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appellant had lit his wife on fire as there are no physical signs of struggle between them.
There are lots of ambiguities that arises benefit of doubt on the appellant side.

If a conviction is to be sustained, there must be chain of circumstances. Any snap in

circumstances would entitle the accused to benefit of doubt. In Wattan Singh &Anrvs State of
Punjab47, the Supreme Court held that to establish charges it is essential to prove that offence
had been committed. Mere suspicion that it had been committed would not be sufficient. In
ShaikhRafiq&Anr vs. Sate of Maharashthra48, it was held that only evidence is in the form of
dying declaration and no fitness certificate obtained before recording dying declaration and
time also not recorded. Further, it is not understood as to why the appellant would carry
kerosene to the house of the deceased when they had gone to patch up quarrel. It was held
that in these circumstances conviction cannot be sustained only on the basis of dying
declaration.

47
AIR 2004 SC pg 1607
48
2008 [1] TNLR Pg 184

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PRAYER

WHEREFORE, In the light of the issues raised, arguments advanced and authorities cited it
is hereinafter humbly laid before the Hon’ble High Court of Rajasthan that it may graciously
pleased to:
1) Uphold the decision of the Family Court; and
2) Acquit Mr. Raj Kumar for the offences said to be committed under Section 498-A,
304-B & 302 of the Indian Penal Code, 1860, read with Section 113-B of the Indian
Evidence Act, 1872.

AND/OR

Pass any other order as the Hon’ble High Court may deem fit in the light of justice, equity
and good conscience.

All of which are most humbly and respectfully submitted

S/d_________________________
COUNSEL FOR THE APPELLANT

MEMORIAL FOR APPELLANT 27