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TEAM CODE:
MAHARAJA AGRASEN INSTITUTE OF MANAGEMENT STUDIES
SCHOOL OF LAW
1 ST^ INTRA TRIAL ADVOCACY COMPETITION, 2020
IN THE COURT OF PRINCIPAL SESSIONS JUDGE
C.C ……. OF 2020
In the matter of State of Golkhand (Prosecution) V Farhan Quereshi and Salim Ali (Defence) For the offences charged under: SECTIONS 302, 307, 34, 120B, 392, 447 OF THE HINDIAN CODE, 1860 AND SECTION 7 AND 27 OF ARMS ACT, 1959 Upon submission to Honorable Sessions Judge MEMORANDUM ON THE BEHALF OF DEFENCE
TABLE OF CONTENTS
Table of contents 1 List of Abbreviations 3 Index of Authorities 4 Table of cases Books Statutes Websites Statement of Jurisdiction 6 Statement of facts 7 Statement of charges 8 Summary of arguments 9 Arguments Advanced 11 ISSUES Issue- 1 Whether both the accused guilty of committing Murder? Issue- 2 Whether both the accused guilty of attempt to murder? Issue- 3
LIST OF ABBREVIATIONS
HPC Hindian Penal Code Accused no. 1 Accused number 1 Accused no. 2 Accused number 2 Hon’ble Honourable AIR ALL INDIA REPORTER PW Prosecution Witness DW Defence Witness V Versus IC Indian Cases SC Supreme Court Mad Madras High Court Cal Calcutta High Court Cri LJ/Cr LJ Criminal Law Journal Cr P.C. Code of Criminal Procedure SCC Supreme Court Cases Sec. Section SCJ Supreme Court Journal Ed. Edition Raj Rajasthan High Court
INDEX OF AUTHORITIES
TABLE OF CASES
- Deo Narain v State of Uttar Pradesh AIR 1973 SC 473
- Rameshar v state (Delhi Administration)(1981) Cr LJ 1125 (Del)
- Chakru Sattiah v State of AP AIR 1960 AP 153
- Mohan Singh v. State of Punjab AIR 1965 Punj 291
- Dalbeer Kaur v. State of Punjab AIR 1977 SC 472
- Chandra Mohan Tiwari v State of MP AIR 1992 SC 891
- Hathi Singh v. State of Rajasthan 1979 SCC (Cri) 976
- Harish Chandra v State of Uttar Pradesh AIR 1976 SC 1430
- Ramakant Rai v Madan Rai Cr LJ 2004 SC 26
- Bishwanth Jha v State of Bihar 2001 10 JT 333
- Virsa Singh v The State of Punjab 1958 AIR 465 1958 SCR 1495
- Takdir Sheikh v State of Gujarat 2011 10 SCC 158
- Balvantsinh Haubha vs State Of Gujarat AIR 2008
- Chandaraiahgari Ananthareddi and ..v State of Andra Pradesh AIR 1995
- State Of Gujarat vs Vikrambhai Nanjibhai Gameti 2007 BOOKS 1. PSA Pillai’s Criminal Law 13th^ Edition 2. K.D. GAUR textbook on Indian Penal Code WEBSITES
- http:/www.findlaw.com
- http:/www.scconline.com
STATEMENT OF JURISDICTION
The hon’ble Court has jurisdiction to try the instant matter under section 177 read with section 209 of Cr. P.C. Section 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) 1 commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;] (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) notify the Public Prosecutor of the commitment of the case to the Court of Session.
STATEMENT OF FACTS
On 15th^ February 2018, at Shri Baldev Pratap Singh’s house, residing at House No.30, Ram Niwas, Viraj Colony, Bagri, Kranchi, Golkhand,where Mr.baldev and his son Rudra Pratap Singh(herein after refer as deceased no. 1) were sitting in the hall and planning some campaign. The chain of events that transpired that morning are: i. Post 11:00 a.m. at that morning Farhan along with one of his friend salim ,barged into Shri Baldev’s house and started calling out Avani’name. ii. Rudra tried to push Farhan and his friend out of the house. In a scuffle with Farhan, Rudra was punched hard on his face with some sort of metal stuck on Farhan’s knuckle. Rudra fell hard on the ground and was motionless. iii. Meanwhile, Avani hearing all the commotion had come there. Farhan asked Avani to hand over her bag, containing gold jewels and 1,50,000 cash, to his friend and to come with him but Avani did not budge to Farhan’s words. iv. His friend picked the bag up and asked Farhan to leave Avani. Avani. Realizing that Avani had stood with her family and would not leave with Farhan, an enraged Farhan asked his friend to shoot her and run out of the house. Then, there was a gunshot, and Avani fell to the ground. v. Mr.baldev tried to snatch the gun which Farhan’s friend held and in a scuffle the gun fell down and the two of them ran away. Accused No. 1 (Farhan Qureshi) and Accused No. 2 (Salim Ali) are to be tried for crimes committed under Ss. 302, 307, 34, 120B, 392, 447 of the Hindian Penal Code, 1860 and Ss. 7 & 27 of Arms Act, 1959.
SUMMARY OF ARGUMENTS
ISSUE- 1
WHETHER ACCUSED NO. 1 AND ACCUSED NO. 2 ARE GUILTY OF
COMMITTING MURDER UNDER SEC 300 HPC?
It is humbly contended before this Hon’ble Court that the accused is not guilty for committing the offence of murder under Sec 302 read with Sec 300, HPC, considering that the accused was acting in private-defense and their actions were an accident. Furthermore, the Prosecution’s case must be dismissed because of heavy reliance on unreliable confession, Autopsy report is inconclusive all creating the existence of a reasonable doubt. Moreover, facts and evidences show that complainant is guilty of committing murder. ISSUE- 2 WHETHER THE ACCUSED NO. 1 AND ACCUSED NO. 2 ARE GUILTY OF ATTEMPT TO MURDER UNDER SEC 307 HPC? It is humbly contended that both accused no 1 and accused no 2 are not liable for attempt to murder of PW-1 who is deceased’s father. Both the accused do not fulfill the requisites of several 307 of HPC. ISSUE- 3 WHETHER THE ACCUSED NO. 1 AND ACCUSED NO. 2 ARE GUILTY OF CRIMINAL CONSPIRACY UNDER SECTION 120B? It is humbly submitted before the hon’ble court that both accused no. 1 and accused no. 2 are not liable for criminal conspiracy under sec 120 B of HPC. Both the accused does not fulfill the
requisites of sec 120A HPC. Sec 120B of HPC provides the definition clause of criminal conspiracy. So it is pertinent to first look Sec 120B of HPC. ISSUE- 4 WHETHER THE ACCUSED NO 1 AND NO 2 GUILTY OF ROBBERY UNDER SEC 392 OF H.P.C? It is humbly submitted that accused no.1 and accused no.2 are not guilty of committing robbery under Sec. 392 of the HP.C. As both the accused does not fulfill the requisites of sec 390 of HPC which elucidate robbery. So it is very pertinent to look sec 390 of HPC. ISSUE - 5 WHETHER THE ACCUSED NO.1 AND ACCUSED NO.2 ARE GUILTY OF COMMITING CRIMINAL TRESSPASS UNDER SECTION 447 OF HPC? It is humbly contended before the Hon’ble court that accused no.1 and accused no.2 are not guilty of the offence of criminal trespass under sec 447 of H.P.C. The accused no. 1 and accused no. 2 neither had any intension [2.1] nor entered unlawfully [2.2]. Also, they did not commit any unlawful offence but only acted in private defense. ISSUE- 6 WHETHER THE ACCUSED NO 1 AND NO 2 GUILTY OF THE OFFENCE UNDER SEC 27 READ WITH SECTION 7 OF ARMS ACT ’1959? It is humbly submitted before this hon’ble court that accused no. 1 and accused no. 2 are not guilty of offence under sec 27 read with sec 7 of Arms act 1959. Neither accused no.1 nor accused no 2 are guilty under sec 27 of arms act. As the accused no. 2 only exposed the desi katta for the self defense and for conviction under sec 27 of arms act there must be use of arms.
The defense humbly submits that action of accused no.1 and accused no.2 was done in right of private defense and it was a reasonable force. A) Circumstances under section 100 is made out According to section 100 of Indian penal code- right of private defense extends to causing death when such an assault as may reasonably cause apprehension of death or grievous hurt.^2 Such an apprehension of death and grievous hurt must be real or reasonable and not an illusory and imaginary. It must be present and imminent and not remote or distant one.^3 As per DW- 1 and DW-2, when they went to deceased no. 2's house, PW-1 and deceased no. 1 confronted them. Accused no. 1 started calling deceased no 2's name. Meanwhile there was a heated argument between deceased no 1 and accused no. 1, and accused no 1 took out his revolver. While defending himself , accused no. 1 him punched him. Afraid on seeing revolver the accused no. 2 took out Desi katta. The act of punching deceased no. 2 was mainly done in private defense since the deceased no. 1 took out his revolve r, the accused no 1 got scared and therefore punched him on his nose .Also the act of accused no 2 was only showing of revolver and he did not shoot the deceased no. 2. B) The force was reasonable An act of self defense cannot be weighed on golden scales as a person whose body is in immediate peril of harm cannot be expected to use precise force to repel the assailant and going slightly further than what is necessary while exercising self defense would be allowed by law. The right of self defense is not dependent on the actual criminality of the person resisted rather it depends solely on the wrongful or apparently wrongful character of the act attempted by the accused and this right of private defense continues as long as there is reasonable apprehension of danger of body continues. (^2) Deo Narain v State of Uttar Pradesh AIR 1973 SC 473 (^3) Rameshar v state (Delhi Adminstration)(1981) Cr LJ 1125 (Del )
The force used was reasonable enough. The deceased no. 1 took out his revolver and consequently, he would have shot the accused due to which the accused no. 1 punched him on his nose in order to safeguard himself. Moreover, accused no 2 did not shoot but only took out his Desi katta in order to defend themselves. In the facts at hand, the accused could not be expected to measure his use of force on golden scales as the situation was one which required urgency in thought and action, as the deceased no. 1 as taken out his revolver. Therefore, use of force by accused was in heat of moment. While not necessarily completely proportionate to the force required, was still reasonable considering the circumstances at hand, and not excessive in any manner. 2.2 THE ACCUSED ACTIONS WERE AN ANCIDENT Under sec 80, HPC, a criminal act which is an accident is not punishable as it excuses the accused from the punishment due to lack of mens rea, and it is for prosecution to prove requisite intension and knowledge in cases of murder 4. The word ‘accident’ is something that happens unexpectedly or happens unintentionally. The purely accidental results of a man’s voluntary conduct will be not be imputed to him if 5 – i. He had no criminal intension ii. His conduct was lawful iii. His consequences were purely lawful The amount of caution that is to be followed under this section is not that which is of highest order, but that which is a reasonable precaution when seeing the facts of each case. In the case at hand it could be seen that- Accused had come there to take deceased no. 2 with him with her consent and therefore, his conduct was purely lawful. (^4) Chakru Sattiah v State of AP AIR 1960 AP 153 (^5) Mohan Singh v. State of Punjab AIR 1965 Punj 291
B) Confessional statement of DW-1 (exhibit - 18) was signed fraudulently. Section 26 Hindian Evidence Act Confession by accused while in custody of police not to be proved against him.—No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate1, shall be proved as against such person.^9 Section 25 of Hindian Evidence Act Confession to police officer not to be proved 10 —No confession made to a police officer1, shall be proved as against a person accused of any offence.—No confession made to a police officer1, shall be proved as against a person accused of any offence.^11 Exhibit-18 which is allegedly the confessional statement of accused number 1 was signed by him fraudulently. According to the statement when accused no. 1 and accused no. 2 went to take deceased number 2 from her house, then there were altercation between deceased number 1 and accused number 1 which ended up with accused number 1 punching deceased number 1 on his face with knuckle duster. However, as per confessional statement of DW-1 who is accused no 1, it is clearly stated that he punched deceased no 1 on his nose in act of self defense only. And, accused no. 2 took out revolver to defend him but PW-1 snatched it from home. Subsequently, they left the place. COMPETENT WITNESS Section 118 of Evidence Act "Who may testify" All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same (^9) Balvantsinh Haubha vs State Of Gujarat AIR 2008 (^10) State Of Gujarat vs Vikrambhai Nanjibhai Gameti 2007 (^11) Chandaraiahgari Ananthareddi and ..v State of Andra Pradesh AIR 1995
kind. Therefore, DW-1 and DW-1 are competent witnesses under section 118 of Hindian Evidence Act. 2.4 AUTOSPHY REPORT IS INCONCLUSIVE As per autopsy report A 12 and confessional statement of PW-6, it is stated that death of deceased no. 1 is caused due to excessive blood loss from the lacerated wound over the nasal bone. However, as per DW-4 who is an independent medical practitioner who claims that autopsy report is partial in nature because death is caused due to serious injuries which include fracture of the first thoracic vertebrae T1 and dislocation of the third thoracic vertebrae T3 alongside a head injury which has clearly resulted in brain hemorrhage and blood clotting which is cause of death. Moreover, Autopsy report B^13 states that the cause of death of deceased no 2 is tangential gunshot wound to the left side of the face which resulted in immediate shut down of the respiratory and circulatory system. But according to DW-4, she has suffered from a gunshot wound on her head but the death has been caused by air embolism suffered as a result of that gunshot and not from that gunshot itself. The above witnesses show that the expert evidence is itself not telling the same story and is rather inconclusive. Therefore, conviction should not be based on that and accused should be acquitted. 2.5 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 case.^14 (^12) Exhibit 4 (^13) Exhibit 5 (^14) Ramakant Rai v Madan Rai Cr LJ 2004 SC 26
her own family. Since, her father was a renowned personality, it was difficult for her to do something of her choice. Thus, she found that comfort in accused no. 1 and their relationship blossomed. On the day of 15th February 2018, accused no. 1 had come to deceased no. 2's house to take her along with his friend. During self defense, the accused no. 1 punched deceased no.1 with knuckle duster on his nose and he fell motionless on the floor. PW-1, who was standing right there was dumbstruck. When deceased no. 2 came down on being called by accused no. 1, complainant's anger knew no bounds. Firstly, he was shocked By the fact that his dear has died and secondly, he could not digest the fact that his daughter was planning to elope with accused no.1. Complainant, being an Orthodox ideologist , seeing how his reputation has been ruined and now he would not be able to face society, decided to kill her daughter and put all the blame on accused. So when both the accused left the house leaving behind Desi Katta, he took it and shot his daughter. The exhibit - 12 shows that fingerprints of Complainant on trigger, grip and frame of desi Katta. Also, the investigating officer found a women's broken wrist watch from the crime scene which indicates that Avani would have protested when her father tried to shot her. DISCRIPANCIES IN TIMINGS Moreover, according to the confessional statement of PW- 1 , the accused entered his house at 11 a.m. and all these incidences happened before his eyes in seconds and left him shell-shocked but according to PW-5, the gun was shot at 11:45 a.m. The time gap is huge which is 45 minutes. This shows that complainant took the desi katta and shot his daughter after both the accused left. Also, even after 3 days of the unfortunate day of 15th^ February, the accused no. 1 and accused no. 2 didn’t escape and were found in 77-E, lithoria nagar which is Accused no. 2 house. The point being that if they would have deliberately and with an intention tried to kill anyone or would have come to rob, then they had got the requisite amount of money too. The above evidence clearly shows that the complainant has murdered his own daughter. Therefore, he is guilty of committing murder u/s 302 of H.P.C. COMPETENT WITNESS
Section 118 of Evidence Act "Who may testify" All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Therefore, PW-1 and PW-5 are fall within the category of competent witness under sec 118 of Hindian Evidence Act.
