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BEFORE THE DISRICT AND SESSIONS COURT AT CHANDIGARH

S.C. NO.467 OF 2019

--IN THE MATTER OF--

STATE OF PUNJAB ............PETITIONER

Versus

KANTA .........RESPONDENT

FOR OFFENCES CHARGED UNDER:

SECTION 302 OF THE INDIAN PENAL CODE, 1860

MEMORIAL ON BEHALF OF THE PETITIONER

DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER

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TABLE OF CONTENTS

S. NO. PARTICULARS PAGE NO.

1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 6

3. STATEMENT OF JURISDICTION 8

4. STATEMENT OF FACTS 9

5. ISSUES RAISED 11

6. SUMMARY OF ARGUMENTS 12

7. ARGUMENTS ADVANCED 13

8. PRAYER

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LIST OF ABBREVIATIONS

S.NO ABBREVATIONS FULL FORM

3. & And

2. § Section

1. ¶ Paragraph

4. AIR All India Reporter

6. Anr. Another

5. Art. Article

19. CrLJ Criminal Law Journal

7. CrPC Code of Criminal Procedure

8. HC High Court

9. Hon’ble Honorable

11. IPC Indian Penal Code

12. NGO Non-Governmental Organization

13. Ors. Others

14. SC Supreme Court

18. SCR Supreme Court Reporter

15. U.O.I Union Of India

16. U.S United States

17. v. Versus

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TABLE OF CASES

S.NO CASE NAME CITATION PAGE NO.

1) A.L. Mustaneer Establishment v Varuna AIR 1998 72Del LT 14

Overseas (P) Ltd 186

2) Ajit Singh v Kakbhir Singh AIR 1992 P & H 16

193

3) Boistrub Charan v Wooma Charm (1889) 16 Cal 436 16

4) Denzyl Winston Ferries v Abdul Jaleel AIR 1992 AP 246: 16

(1992) 2 Andh LT
144

5) Derry v Peek (1889) 14 App Cas 17

337

6) Fateh Chand vs Balkishan Das AIR 1963 SC 140: 18

(1964) 1 SCR 515.

7) Fazaluddin v. Pnachanam Das 1968 2 SCA 97 15

8) Gopal Lal v Babu Lal AIR 2004 4 CLT 16

161 Raj DB

9) Kateshwar Mittal Kamath v. K Rangappa Baliga AIR 1959 SC 78: 16

and Co. (1969) 2 SCA 342

10) L’Estrange v F Graucob Ltd [1934] 2 KB 394 17

11) M/S Bhagwati Prasad Pawan Kumar vs Union Of Appeal (civil) 150- 18
India. 151 of 2001

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12) Matrix Cellular (International) Services Ltd. v. Suit No. 83115/16 18

Navin Kohli.

13) Ningawwa v Byrappa Shiddappa Hirekurbar AIR 1968 SC 956, 15

958

14) ONGC Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705 18

15) Raj Kumar Tajendra Singh v Dr Sital Raj Mehtaa AIR 1998 l Raj LR 16
523

16) Santha kumara v Lakshmiammal AIR 2004 2CTC 14

259

17) TN, Bhaurao Dagdu v State of Maharashtra AIR 2005 7 SCC 14

605

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INDEX OF AUTHORITIES

COMMENTARIES REFERED:
Books on Indian Penal Code:
1. RATANLAL & DHIRAJLAL’S LAW OF CRIMES – A Commentary on The Indian
Penal Code, Vol I, Bharat Law House, Delhi, 27th Edn. 2013.
2. RATANLAL & DHIRAJLAL’S LAW OF CRIMES – A Commentary on The Indian
Penal Code, Vol II, Bharat Law House, Delhi, 27th Edn. 2013.
3. JUSTICE V. V. RAGHVAN, LAW OF CRIMES, India Law House, New Delhi, 5th
Edn. 2001.
4. K I VIBHUTI, P.S.A PILLIA'S CRIMINAL LAW, Lexis Nexis, 12th Edn. 2014.
5. DR. (Sir) HARI SINGH GOUR, PENAL LAW OF INDIA, Law Publishers (India) Pvt.
Ltd., 11th Edn. 2014.
6. J C SMITH, SMITH AND HOGAN CRIMINAL LAW – Cases and Materials,
LexisNexis Butterworths, 8th Edn. 2002.
7. BASU'S INDIAN PENAL CODE (Law of Crimes), Vol I., Ashoka Law House, 11th
Edn. 2011.
8. S.K. SARVARIA, R.A. NELSON’S INDIAN PENAL CODE (9th ed. Lexis Nexis
Butterworths Gurgaon 2002).
9. M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency,
Faridabad 2005).
10. RAM JETHMALANI & D.S. CHOPRA, 2 THE INDIAN PENAL CODE (1st ed.
Thomson Reuters, Legal, New Delhi 2014).

Books on Constitutional Law:

1. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6th ed. Lexis Nexis Butterworths
Wadhwa, Nagpur 2010).
2. DURGA DAS BASU, 1 COMMENTARY ON CONSTITION OF INDIA (8th ed.
Wadhwa and Company Nagpur 2007).
3. DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW OF INDIA (Universal
Law Publishing Pvt. Ltd., New Delhi 2008).

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STATUTES REFERRED:

1. INDIAN PENAL CODE, 1860.

2. THE CONSTITUTION OF INDIA, 1949.
3. THE INDIAN EVIDENCE ACT, 1872.
4. THE CODE OF CRIMINAL PROCEDURE, 1973.

LEXICONS/DICTIONARIES REFERRED:
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001).
2. OXFORD ENGLISH DICTIONARY (2nd ed. 2009).
3. WEBSTER’S NEW INTERNATIONAL DICTIONARY.

LEGAL DATABASES:
1. MANUPATRA.
2. SCC ONLINE.
3. CASEMINE.
4. AIR.
5. LAW FINDER.

WEBSITES REFERRED:
1. http://www.manupatra.com
2. http://www.judis.nic.in
3. http://ncrb.nic.in
4. http://www.scconline.com
5. http://www.airwebworld.com
6. http://www.jstor.com
7. http://www.lexusnexus.com/in/legal

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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.

Section 177:
‘177. Ordinary place of inquiry and trial-
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.’

Read with Section 209:

‘ 209. Commitment of case to Court of Session when offence is triable exclusively by it
When in 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 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) (d) notify the Public Prosecutor of the commitment of the case to the Court of
Session.’

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STATEMENT OF FACTS

Pooja was married to May in the year 2009. After the marriage, she gave birth to three
children. who were all Girls. The mother-in-law of Pooja, namely Kanta was very dissatisfied
with Pooja because she was not able to bear a boy. Many a times Pooja and Kanta got
Involved in heated arguments over the issue of a male child. Thus, there were no cordial
relations between Pooja and Kanta in the household.

On one day at about 7 am Pooja with her youngest daughter Minaxi had gone to fetch water
and while she was returning with water pot on her head and carrying Minaxi with the other
hand, she was hit from behind and a burning wick made of rags was thrown upon her. This
set fire to the clothes put on by Pooja.

Pooja brought down her minor daughter whom she was carrying and managed to teach her
house with the burn injuries. Pooja was then taken to Government Hospital by her mother in
law where Pooja was examined and it was found that the she has sustained more than 60% of
burn injuries. She was admitted in the hospital for the treatment of her burn injuries.

The news of the incident came into the knowledge of the police officials who reached the
hospital to inquire about the matter. Pooja narrated the morning incident to the police
officials and said that she heard the sounds or bangles when the incident took place but she
could not recognize any person. During the course of treatment. Pooja died. On the basis of
dying declaration of Pooja, the police set into motion to look into the matter.

A formal inquiry by the police officials was conducted wherein it was found that the right
hand of the mother in law of Pooja had fresh burn injuries. On being asked about the bum
injuries. kanta could not give any satisfactory answer. The police on the basis of suspicion
registered a case against Kama, the mother in law of Pooja, under section 302. IPC.

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ISSUES RAISED

……………………………………..…….ISSUE 1……….………..………………………….

WHETHER KANTA IS GUILTY OF COMMITTING OF MURDER UNDER

SECTION 302, IPC OF HER DAUGHTER IN LAW POOJA?

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SUMMARY OF ARGUMENTS

1) WHETHER KANTA IS GUILTY OF COMMITTING OF MURDER UNDER

SECTION 302, IPC OF HER DAUGHTER IN LAW POOJA?

It is most humbly submitted before this Honourable court that the accused is guilty for
committing the offence of murder under Sec 302, IPC.

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ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

1. WHETHER KANTA IS GUILTY OF COMMITTING OF MURDER UNDER

SECTION 302, IPC OF HER DAUGHTER IN LAW POOJA?

It is most humbly submitted before this Honourable court that the accused is guilty for
committing the offence of murder under Sec 302, IPC. Sec 302 prescribes the punishment
for committing murder. In order to bring a successful conviction under this charge, however,
it is pertinent to refer to Sec 300, IPC which elucidates the essentials of murder.
A person is guilty of murder if he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in the ordinary course of nature results into death or commits an act so dangerous that
it must, in all probability cause death of that person. The Appellants humbly contends that
both, the actus reus [1] & the mens rea [2] of the crime are established in the instant matter.
In the present case death was caused by Burn injuries which comes under the death by doing
an act with the intention of causing death.

1. ACTUS REUS OF MURDER IS ESTABLISHED

Actus reus is any wrongful act1. Thus, in a case of murder, actus reus would be the physical
conduct of the accused that causes death of the victim. In the instant case, the actus reus is
established by way of dying declaration [1.1] & conduct of accused [1.2].

1.1 Dying Declaration

It is humbly submitted before this Honourable Court that the dying declaration is reliable &
requires no corroboration for conviction. The Section 32(1) of IEA only requires that there
must be a statement made by a person about the cause of his death, for its admissibility & it
need not disclose all surrounding circumstances.2And a mere omission, in a dying

1
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd Ed. 2006)
2
State v. Javed Ansari, Delhi HC on 14 February, 2012

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declaration, of the motive of the accused to kill the deceased does not affect its veracity,
insofar as it relates to the cause of death.3

Word “Dying Declaration” means a statement written or verbal of relevant facts made by a
person, who is dead.4 It is the statement of a person who had died explaining the
circumstances of his death. This is based on the maxim ‘nemo moriturus presumuntur
mentri’ i.e. a man will not meet his maker with lie on his mouth. Our Indian law recognizes
this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.5

Dying declaration recorded on the basis of nods and gestures is not only admissible but
possesses evidentiary value, the extent of which shall depend upon who recorded the
statement, what is his educational attainment, what gestures and nods were made, what were
the questions asked whether they are simple or complicated - and how effective or
understandable the nods and gestures were.6

In the present case The news of the incident came into the knowledge of the police officials
who reached the hospital to inquire about the matter. Pooja narrated the morning incident to
the police officials and said that she heard the sounds or bangles when the incident took place
but she could not recognize any person. During the course of treatment. Pooja died. On the
basis of dying declaration of Pooja, the police set into motion to look into the matter.

A formal inquiry by the police officials was conducted wherein it was found that the right
hand of the mother in law of Pooja had fresh burn injuries. On being asked about the bum
injuries. kanta could not give any satisfactory answer. The police on the basis of suspicion
registered a case against Kama, the mother in law of Pooja, under section 302. IPC.

1.2 Conduct of Accused

A fact can be proved by conduct of a party & by surrounding circumstances. A formal
inquiry by the police officials was conducted wherein it was found that the right hand of the

3
Mahender vs State, Delhi HC on 1 November, 2013
4
Section 32(1), of IEA, 1872
5
Satbir Singh and Ors. Vs. State of Haryana, SC on 14th Sept.2005
6
Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182

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mother in law of Pooja had fresh burn injuries. On being asked about the bum injuries. kanta
could not give any satisfactory answer.

Statements accompanying or explaining conduct are also relevant as part of the conduct itself.
Previous conduct of the accused can be inferred from the Fact Sheet Also it is important to
note that the accused were present at place of occurrence as stated in the dying declaration,
which can be corroborated by the burn injuries on the hands of the accused.

2. MENS REA OF MURDER IS ESTABLISHED

Mens rea is considered as guilty intention which is proved or inferred from the acts of the
accused. It is submitted that the intention to kill is established [2.1] in light of clear-cut
motive & preparation of the accused [2.2].

2.1 The accused had intention to kill

It is presumed that every sane person intends the result that his action normally
produces & if a person hits another on a vulnerable part of the body, & death occurs as a
result, the intention of the accused can be no other than to take the life of the victim & the
offence committed amounts to murder.7 Moreover, the intention to kill is not required in
every case, mere knowledge that natural & probable consequences of an act would be death
will suffice for a conviction under s. 302 of IPC.
In the instant case, Kanta wants a baby Boy and pooja is not able to bear a boy due to which
they usually end up in a heated argument which gives kanta a clear intention to kill Mrs
Pooja.

2.2 Motive & Preparation

It is pertinent to note that the SC laid down that in case of murder by poisoning the
prosecution must establish that death took place by poisoning & that an accused had an
opportunity to administer poison to the deceased. In the case at hand appellant had proved
both the things. Therefore, accused is guilty for the offence of murder.8 It is also humbly
submitted that accused are guilty of offence charged under Section 302.

7
Public Prosecutor v. Somasundaram And Ors, AIR 1959 Mad 323
8
Arundhati Keutuni And Anr. v. The State 1968 Cr.LJ 848

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3. CIRCUMSTANCES OF THE CASE ARE OF CONCLUSIVE NATURE

Bearing in mind that it is not for the prosecution to meet any & every hypothesis suggested
by the accused, howsoever extravagant & fanciful it might be9, it is humbly submitted before
this Honorable Court that the circumstantial evidence in the instant matter shows that within
all human probability, the act must have been done by the accused.10

It is humbly submitted before the Honourable Court that it is one of the established principles
of law that a witness may lie the facts but not the circumstances.11 Direct evidence is not
necessary for proving the person behind the crime. The court reiterated that the guilt of a
person can be proved by circumstantial evidence also.12 So far as this instant case is
concerned the dying declaration which is not clear but it does not affect the case because
justice is sought on ardent principles of law. If the story is probable in the sense that it is
coming in the natural flow & it finds support from the surrounding circumstances, it cannot
be suggested that the story must be photographically accurate and should stand to the test of
word to and in measurement inch to inch.13

There is absolutely nothing to doubt that Kanta was not in good terms with her Daughter in
Law. Also there is nothing to doubt that in the Dying Declaration, Mrs. Pooja states that there
was a Woman wearing Bangles. Also it is well understood that Kanta has Burn Injuries on
Her Hands which clearly indicates at the time of Act she got Hurt. These injuries could not
have been caused by convulsions & the overall conduct of the accused & the gesture of the
deceased in pointing her hand towards her Mother in law as the person responsible for her
condition, unerringly points towards his guilt & the chain of circumstances is complete. Men
may lie but the circumstances do not, is the cardinal principle of evaluation of evidence.14
The overall circumstances unerringly point towards the guilt of the accused. So the burden of
proving the fact lies upon the accused & also the circumstances in which the deceased met his
death.

9
State of UP v. Ashok Kumar Srivastava, AIR 1992 SC 840
10
State of UP v. Randhir, AIR 1959 All 727
11
Rameshbhai Mohanbhai Koli & Ors. v. State of Gujarat, (2011) 11 SCC 111
12
Sandeep v. State (NCT Of Delhi) Delhi HC on 5 February, 2015
13
State v. Javed Ansari on 14 February, 2012 Delhi HC
14
Rameshbhai Mohanbhai Koli & Ors. v. State of Gujarat, (2011) 11 SCC 111

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Assuming for the sake of argument that prosecution is not able to establish the certain facts.
The SC ruled out that in number of cases, in which it would be impossible for the prosecution
to establish certain facts which are particularly within knowledge of the accused. The burden
of proving the case then lies on the accused.15 In such a situation accused has to prove that
how she died. In the present case by the circumstantial evidence & Victims statement it is
clearly established that the accused had committed murder by the mother in law.

4. CASE IS PROVED BEYOND REASONABLE DOUBT

It is humbly submitted before this Honourable Court that present case is proved beyond
reasonable doubt. The general rule is that a party who desires to move the court must prove
all facts necessary for that purpose16 but it is subject to exception that he will not be required
to prove such facts as are necessarily within the knowledge of other party.17 In the present
case the burden of proving that accused had not committed the offence of cruelty, dowry
death & murder lies on the accused. Failure to explain that the deceased was in unconscious
position coupled with other evidence is a grave circumstance which militates against such a
person.18 There is overwhelming evidence on record indicating that the behavior of the
accused towards the deceased was improper.

In State of Punjab v. Amarjit Singh19, it was held that where the prosecution proved that
there was a strong motive for the crime, that the deceased woman was last seen alive in the
company of the Accused & that the death was unnatural & homicidal, it was held that the
burden to account for the circumstances of death was shifted to the person in whose care the
woman met her death. He alone must be in possession of the knowledge of those
circumstances.

In Rajammal v. State of T.N.20, in case of dowry death, the victim died due to manual
strangulation & the victim’s in-laws & husband’s brother alone were present in the house at
the time of her death. Their subsequent conduct was consistent only with their guilt. It was

15
Shambu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404
16
Section 101 of IEA,1872
17
Section 106 IEA, 1872 See Also Raja Ram v. State Cri. Appeal No. 211 of 2013
18
State of HP v. Rajiv Jassi, MANU/0531/2016 (Decided on 6/5/2016 by SC)
19
1989 Cr.LJ (NOC) 13 (P&H) ( Quoted in The Law of Evidence, Ratanlal & Dhirajlal, 25th Ed., Pg.536)
20
1993 Cr.LJ 3029 (Mad.)( Quoted in The Law of Evidence, Ratanlal & Dhirajlal, 25th Ed., Pg.87)

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held that the only possible inference was that they participated in the crime & the burden to
prove the contrary lay on them since it was within their special knowledge.
Where the dowry death occurred in the in-laws place, the onus was laid on the inmates of the
house to explain the circumstances of the tragic end of the life of the married woman.21If
there was proof that the accused (husband) ill-treated his wife. His presence at the place of
occurrence was also proved. His wife was last seen in his company. The Court said that this
could be taken into consideration to convict him. Each & every circumstance was pointing
the finger of guilt towards the accused.22

This Court has considered in Sharad Birdhichand Sarda v. State of Maharashtra23 case of
murder by administering poison & dealt with mode & manner of proof in such cases. Four
circumstances are to be examined before recording a conviction.

i. There was a clear motive for the accused to administer poison to the deceased,
ii. the deceased died of poison said to have been administered,
iii. that the accused had poison in his possession
iv. that he had an opportunity to administer the poison to the deceased.

The aforesaid tests stand satisfied in the instant case & the prosecution has proved the case
beyond periphery of doubt. The conduct of the accused & gesture of the victim at the crucial
time as projected in the case, medical evidence, evidence as to purchase of poison unerringly
point towards the guilt of the accused.

A reasonable doubt must not be imaginary, trivial or merely possible doubt; but a fair doubt
based upon reason & common sense arising out of the evidence of the case.24 In the above
mentioned facts it is clearly stated that the crime was committed by the accused & not by the
any other person. It is clearly establishing the chain of circumstantial evidence. There is no
doubt in this as to “may have committed or has committed”25, the prosecution has established

21
Kundala Bala Subranayam v. State of AP, 1993 Cr.LJ 1635(Quoted in The Law of Evidence, Ratanlal &
Dhirajlal, 25th Ed., Pg.87)
22
State of Maharashtra v. Shivaji Anandrao, 2002 Cr.LJ 4198 (Bom) (Quoted in The Law of Evidence,
Ratanlal & Dhirajlal, 25th Ed., Pg.537)
23
AIR 1984 SC 1622
24
Chhotanney & Ors vs State Of Uttar Pradesh & Ors on 18 February, 2009
25
Brij Bhushan Sharma vs State Of U.P. 2001 CriLJ 1384

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this by legal, reliable & unimpeachable evidence for conviction to be sustained. Also in the
present case there is no two views are possible.

Therefore, it is humbly submitted before this Honourable Court that the charge under section
302 of the IPC has been made out due & all the accused must be convicted.

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PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly prayed before this Hon’ble Sessions Court, that it may graciously be
pleased to-

 Kanta should be Held Guilty for Murder of Her Daughter in Law Mrs. Pooja.

Pass any other order, which the court may deem fit in light of the facts of the case, evidences
adduced and justice, equity and good conscience.
And in this premise shall the Petitioner forever pray.

Sd/-
Counsels for the Petitioner

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