Intra Moot Court Competition 2022 - Memorial on Behalf of Prosecution, Study notes of Human Rights

Download Intra Moot Court Competition 2022 - Memorial on Behalf of Prosecution and more Study notes Human Rights in PDF only on Docsity! INTRA MOOT COURT COMPETITION, 2022 MEMORIAL ON BEHALF OF PROSECUTION 1 Team Code: PITVGU002 INTRA MOOT COURT COMPETETION 2022 IN THE HON’BLE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, JAIPUR C.C. NO. 100 of 2022 KANUPRIYA.....................................................................................................(PROSECUTION) V. RACHIT AND ORS..........................................................................................(DEFENCE) FOR OFFENCES CHARGED UNDER: SECTIONS 498A, 325, 504 OF THE INDIAN PENAL CODE, 1860 UPON SUBMISSION TO THE HON’BLE JUDICIAL MAGISTRATE FIRST CLASS MEMORANDUM ON BEHALF OF PROSECUTION DRAWN AND FILED BY THE COUNSEL FOR THE PROSECUTION INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 2 TABLE OF CONTENTS LIST OF ABBREVIATIONS 3 INDEX OF AUTHORITIES 4-7  Table of Contents 4-5  Books 6  Websites 6  Statutes 7  Lexicons 7 Statement of Facts 8 Statement of Jurisdiction 9 Statement of Charges 10 Summary of Arguments 11 Arguments Advanced 12-21 Charge-01: Whether Mr. Rachit and his mother are guilty under Section 498A of Indian Penal Code, 1860? 12-15 Charge-02: Whether Mr. Rachit And His Mother Are Offenders Under Section 504 Of Indian Penal Code, 1860? 16-19 Charge-03: Whether Rachit Is Liable Under Section 325 Of Indian Penal Code,1860? 20-21 Prayer 22 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 5 15. Bhimanna vs. State of Karnataka AIR 4 September2012 16. Fiona shrikhande vs. State of Maharastra & Anr AIR 22 August 2013 17. Mohammed Sabed Ali v Thulesvar Borah AIR 1955 crilj 1318 18. Prabhu Dayal v. State Of Madhya Pradesh AIR 2016 SCC Online MP 8503 19. Mohammed Sabad Ali v Thuleswar Borah AIR (1954) 6 Ass 274 20. Gangaram v. State of Rajasthan AIR 1968 CrLJ 134 21. State v. Javed Ahmad Tantrey Sikandar & Ors. AIR 341/2A/04 of 2013, 22. Dr. Monica Kumar & Anr v. State of U.P. & Ors AIR 27 May, 2008 23. Naresh v. The State of Uttarkhand AIR 25 April, 2018 24. Ishwar Pratap Singh v. The State of Uttar Pradesh Home AIR 28 November, 2017 25. Ahsan v. The State of Uttar Pradesh AIR 29 August 2017 26. Mahadev Prasad Kaushik v. State of U.P. & Anr AIR 17 October 2008 27. Md. Ibrahim & Ors. V. State of Bihar & Anr AIR 4th September 2009 28. Rambaran Mahton v. The State AIR 1958 Pat 452 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 6 BOOKS REFERRED 1. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011) 2. P.S.A. Pillai (13th Ed. 2017) 3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009) 4. Gupta and Dighe, Criminal Manual, (7th Ed. 2007) 5. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011) WEBSITES REFERRED 1. SCC Online http://www.scconline.com 2. Manupatra http://www.manupatrafast.com 3. Find Law http://www.findlaw.com 4. Indian Kanoon http://www.indiankanoon.com INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 7 STATUTES AND ACTS REFERRED 1. The Code of Criminal Procedure 1973 (Act 2 of 1973) 2. The Indian Penal Code 1860 (Act 45 of 1860) LEXICONS 1. Aiyar P Ramanathan, Law Lexicon, 2005 2. Garner Bryana, Black’s Law Dictionary, 7th Edition, 1999 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 1 3 The Code of Criminal Procedure, No. 2 of 1974 STATEMENT OF CHARGES CHARGE NO. O1 CHARGE NO. 02 CHARGE NO. 03 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 1 Whether Mr. Rachit and his mother are guilty under Section 498A of Indian Penal Code, 1860? Whether Mr. Rachit And His Mother Are Offenders Under Section 504 Of Indian Penal Code, 1860? Whether Rachit Is Liable Under Section 325 Of Indian Penal Code,1860? SUMMARY OF ARGUMENTS CHARGE NO.01 CHARGE NO.02 CHARGE NO.03 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 1 Whether Mr. Rachit and his mother are guilty under Section 498A of Indian Penal Code, 1860? It is submitted before the Hon’ble court that both the accused, Mr. Rachit and his mother had committed the offense of cruelty by having wilful conduct towards Kanupriya and harassment to her on account of dowry. The behavior of both accused towards Kanupriya are sufficient to cause mental injury to her. The essential ingredients of Section 498A are fulfilled. Whether Mr. Rachit And His Mother Are Offenders Under Section 504 Of Indian Penal Code, 1860? It is submitted before the Hon’ble court that the accused, Mr. Rachit had committed the offence of voluntarily causing hurt. He slapped the victim, with grave intensity and such slap resulted in hurt as mentioned in Section 320 with knowledge of the fact that this will cause grievous hurt to Kanupriya are therefore fulfilled. Whether Rachit Is Liable Under Section 325 Of Indian Penal Code,1860? It is submitted before the Hon’ble court that both the accused Mr. Rachit and his mother have insulted the victim to such an extent that her reciprocal act resulted in commitment of offence. This fulfills the criteria of Section 504 of Indian Penal Code,1860. INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 1 In A. Jyachandra v. Aneel Kaur9, the S. C. expressed the view about cruelty. The expression “cruelty” has been issued in relation to human conduct or human behavior. It is a conduct in relation to or in respect of matrimonial ties and obligations. The cruelty may be mental or physical, intentional or unintentional. In Vinita Saxena vs. Pankaj Pandit 10,regarding legal proposition on aspect of cruelty has made the following observations: "It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. In Neelu Kohli v. Naveen Kohli11 It was held that intention is not necessary element of cruelty. Also, it is not necessary that the cruelty should be aimed to the petitioner. Even if it is not aimed to the petitioner but other person, the spouse can go and ask for cruelty because the Ambit of mental cruelty is so was that almost everything is included in it. If we go through different acts we find cruelty to be aim to the petitioner but this is for sure that if it hurt it caused to a person to whom the petitioner is related, and then it also a case of cruelty to the petitioner and this is laid down in number of decisions. In Shobha Rani v Madhukar Reddi12 the court held that the absence of intention should not make any difference in the case, if by ordinary sense in human affair the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been a deliberate or willful ill-treatment. The Supreme Court held that what constitutes mental cruelty will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and deleterious effect of it in the mental attitude, necessary for maintaining a conducive matrimonial home13 9 A. Jyachandra v. Aneel Kaur AIR 2005 SCW 163 10 Vinita Saxena vs. Pankaj Pandit AIR 2006 3 SCC 778 11 Neelu Kohli v. Naveen Kohli AIR 2006 SC 1675 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 1 12 Shobha Rani v Madhukar Reddi AIR 1988 1 SCC 105 13 Supra 10 2. Harassment on account of failure by her or any person related to her to meet such demand INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 1 In Samar Ghosh v. Jaya Ghosh14 ,the Supreme Court observed that no uniform standard can be laid down for guidance with regard to mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a lengthy period, where relationship has deteriorated to an extent that, the wronged party finds it extremely difficult to live with other party any longer. In reference to above mentioned cases it is well established that mental cruelty comes within the purview of Section 498A and Kanupriya has been subjected to the same. Analysis of this section shows that this law deals with four types of cruelty:  Any conduct that is likely to drive a woman to suicide,  Any conduct which is likely to cause grave injury to the life, limb or health of the woman,  Harassment with the purpose of forcing the woman or her relatives to give some property or  Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property. In order to prove that Kanupriya was subjected to harassment which ultimately led to cruelty the counsel would like to bring to the notice of Hon’ble Court the statements used by the Accused No. 2 “Dahej toh diya nhi aur varis bhi nhi diya”. This statement fulfills the necessary ingredients of harassment that Kanupriya’s father was unable to yield the demand of dowry and she was harassed for same. Relying on the aforesaid cases and arguments, it is submitted before this Hon’ble Court that both the accused are guilty under Section 498A of Indian Penal Code 14 Samar Ghosh v. Jaya Ghosh (2007)4 SCC 511 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 2 act because the person insulted does not take the provocation in the manner intended, or exercises self- control, or being terrified by the insult, or overpowered by the personality of the offender, does not actually break the peace or commits another offence16. In judging whether a particular abusive language comes within the mischief of section 504, I.P.C, the Court has to see what the effect of the language would be used in ordinary course of events and not how the complainant actually behaved on being abused. Merely because a man of cool temperament did not react violently or break the peace it does not follow that no offence was committed by the accused. SCOPE AND OBJECT For an offence under S. 504, what is material is not the reaction of the complainant which might vary according to the sensitiveness of the individual insulted but the intention of the offender to provoke or his knowledge that he is likely to provoke the person insulted to commit an offence17 An insult which under ordinary circumstances would be likely to provoke the person insulted to cause a breach of peace is within the provisions of the section although the person insulted may have been reduced to a state of abject terror so as to render improbable that he would commit a breach of peace. The Court has merely to consider the standard of an ordinary reasonable man to see if the insult offered is such as is ordinarily sufficient to arouse passions and provoke retaliation by words or deed. If the abusive language used or insult hurled, in the ordinary circumstances are such that they ordinarily provoke the man or woman of his or her position to commit a breach of the peace. The mere forbearance of the person insulted being provoked is not sufficient to protect the offender.18 If the insult hurled or abusive language used intentionally is of such a nature as would, in the ordinary course of events, lead the person insulted to break the peace or to commit the offence under the law, the case is not taken away from the purview of S. 504 I.P.C., merely because the insulted person INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 2 16 Vikram johar v State of U.P. AIR 2019 17 Abraham v State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 18 S.Gopal, 1953 CrLJ 744 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 2 exercised self-control or being terrified by the insult, or overawed by the personality of the offender did not actually break the peace or commit any offence19. In dealing with section 504 the Court has not to judge the temperament or the idiosyncrasies of the individual concerned. It should try to find out what in the ordinary circumstances would have been the effect of the abusive language used. Where there is no doubt that the abusive language used might ordinarily have resulted in broken limbs or at least in an affray and consequent breach of the peace an offence under Section 504 is committed. Intention of the accused to provoke break of public peace is enough to constitute u/s. 504 I.P.C. It is immaterial whether there occurred actual break of public peace20. In the case of Mohammed Sabed Ali v Thulesvar Borah21, the court held that the requirement of section 504 of IPC is there should be an intentional insult which causes provocation. The provocation should be intended or known to be likely to cause the person insulted to commit breach or commit any other offence. The accused are liable under Sec. 504 1PC as the act or omission of the petitioner beating by the shoes in presence of a large number of persons (Barati) dishonored the victim.22. Similarly, Kanupriya was insulted quite a few times during the span of her marriage. The counsel would to bring to the notice of the court of the instances where Kanupriya was insulted,  She was criticized for being dedicated towards her studies and not able to do household chores  She was humiliated in front of others even after giving her very best to her marriage.  Her father was criticized was not fulfilling the demand of Kanupriya’s in-laws.  She was criticized for not been able to bear child despite of the fact that Rachit’s medical test was never done. 19 Bhimanna vs. State of Karnataka AIR 2012 20 Fiona shrikhande vs. State of Maharastra Anr AIR 2013 21 Mohammed Sabed Ali v Thulesvar Borah 1955 CriLJ 1318 22 Prabhu Dayal v. State Of Madhya Pradesh 2016 SCC OnLine MP 8503 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 2 The counsel would like to bring to the notice of the court that the intensity with which a man slaps to woman cannot be considered as a normal act of hurt. The act of striking the flat surface of hand on Kanupriya by Rachit was an simple act of hurt but it resulted brutal injuries on Kanupriya’s face. Thus, one of the principles of causing grievous hurt as enumerated by Section 322 which says any act of hurt which causes grievous hurt is also the offence of voluntarily causing grievous hurt is fulfilled by act of Rachit. In Gangaram v. State of Rajasthan24, where the eardrum was affected, as the injury was inflicted by a high-speed slap, it was held that the act amounted to permanent disfiguration within the meaning of this clause and hence the injury was grievous. Similarly, the slap of Rachit inflicted severe injury on the area around Kanupriya’s eyes which led to defect in vision of Kanupriya. In State v. Javed Ahmad Tantrey Sikandar & Ors. 25, the accused punched the victim on her stomach, thus causing grievous hurt. The court observed that the victim is liable under section 325 IPC for causing grievous hurt.. The court convicted u/s. 325 i.e. punishment for causing grievous hurt as 5 ribs of the victim were found fractured and the spleen was ruptured, which falls under the description of grievous hurt u/s. 320. The court also applied S. 322 i.e. voluntarily causing grievous hurt26 Relating this with our case, Rachit slapped Kanupriya on her face multiple times which caused injury to Kanupriya and she fell unconscious. Therefore, it can be concluded that Rachit, by slapping to Kanupriya has committed the offence and is punishable under Sec. 325 IPC. A person is said to voluntarily cause grievous hurt when the hurt caused by him, is of the nature of any of the kinds of hurts enumerated in section 320, IPC, and he intends or knows himself to be likely to cause grievous hurt. Relying on the aforesaid cases and arguments, it is submitted before this Hon’ble Court that Accused No. 1 is guilty under section 325 of IPC. 24 Gangaram v. State of Rajasthan 1968 CrLJ 134 25 State v. Javed Ahmad Tantrey Sikandar & Ors. Case no. 341/2A/04 of 2013, Delhi District Court 26 Rambaran Mahton v. The State AIR 1958 Pat 452 INTRA MOOT COURT COMPETITION, MEMORIAL ON BEHALF OF 2 PRAYER Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble Court be pleased to: 1. Convict. A. Mr. Rachit and his mother for the offence of subjecting Kanupriya to cruelty under 498A, committing an offence of intentional insult with the intent to provke Kanupriya under section 504 of Indian penal code 1860 B. Mr Rachit for voluntarily causing grievous hurt to Kanupriya under section 325 of Indian penal code,1860 2. Declare- Sentence of rigorous imprisonment as the court may deem fit. AND/OR Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. All of which is most humbly and respectfully submitted Place: S/d Date: 8 August 2022 Counsel for the Prosecution