The Honble Bombay High Court

Mirza Akbar .................................................... Appellant

v.

Emperor ...................................................Respondent

Memorial On the Behalf of Appellants

ISSUES RAISED 1 Whether There Existed Any Conspiracy. 2 Whether The Letters would be admissible evidence or not.

SYNOPSIS OF FACTS

1. The appellant was tried along with the actual murderer Umar Sher and with Ms. Mehr Taja, the wife of the murdered man, Ali Askar.

2. The murder was committed on August 23, 1938, in the village of Taus Banda about four miles from Hoti.

3. The guilt of Umar Sher was not open to doubt. He was practically caught red-handed. He was caught running away with a single barrel shot gun in his hand, the barrel of which smelt as if freshly discharged. There was an empty cartridge jammed in the barrel.

4. When the appellant came up from the field in which he had been working about half a mile away from the scene of the murder he asserted that Umar Sher was innocent and should be released, but the others present refused to do so.

5. Umar Sher's main defence seems to have been absence of motive. This fact however was relied upon by the prosecution as showing that he was a hired assassin, bribed to commit the murder by the appellant and Ms. Mehr Taja who were co-conspirators in that regard.

6. This was found by the Court to have been the fact. The principal evidence of the conspiracy between these two prisoners consisted of three letters, two from the female prisoner to the appellant, and one from the appellant to the female prisoner.

PLEADINGS/ARGUMENTS ADVANCED

I.

THAT UMAR SHER WAS THE ONLY ACCUSED IN THE ORIGINAL CRIME

1.1 There is a reference to Mirza Akbar and the name dearly refers to the writer of the document. The three documents taken as a whole show that the two writers of the documents desired to get rid of Ali Askar so that they should marry each other and there was a question of finding money for hired assassin to get rid of him. 1.1.1 We find that Ali Askar was shot by a man who had no motive to shoot him. In addition to this there was the strange conduct of Mirza Akbar when Umar Sher was arrested 1.1.2 Statement made by Mst. Mehr Taja before the Examining Magistrate after she had been arrested on the charge of conspiracy would not be admissible in evidence both by the trial Judge and by the Judicial Commissioner on appeal as relevant against the appellant under Section 10 of the Indian Evidence Act. The Judicial Commissioner said that it had been argued that Section 10 did not apply to any statement made by conspirators if the offence to commit which they conspired has actually been committed. He rejected that argument and refused to hold that Section 10 had that limited meaning, though he. Held that the evidence of the statement could not have great weight as against the appellant, since he had not had any opportunity of cross-examining Mst.. Mehr Taja upon it. The words of Section 10 of the Indian Evidence Act 1872, must be construed in accordance with the above principle, and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. The words "common intention" in Section 10 signifies a common intention existing at the time when the thing was said done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. Hence, any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.

If,after the arrest of a conspirator, papers are found on the person or at the lodgings of a coconspirator, they will be admissible against the former if there is evidence that they existed previously to the arrest of the former. If there happens to be no such evidence, they will be rejected, as a prisoner cannot be responsible for acts or writings which possibly may not have existed until after the common enterprise was, so far as he was concerned, at an end. But if their previous existence be established, either by direct proof or by strong presumptive evidence, no objection to their admissibility can prevail.1 The fact of possession of seditious literature written before the formation of the conspiracy is admissible, apart from section 10, to ascertain the object of the conspiracy.2

II. WHETHER THE LETTERS WOULD BE ADMISSIBLE EVIDENCE OR NOT. 1.1.The three letters, two from the female prisoner to the appellant, and one from the appellant to the female prisoner, form the principle evidence on which the prosecution case lies. But it is contested by the appellant that the letters were sent on a date after their arrest, in relation to the present case, and thus they should not form a material fact of the case. The appellant forms this plea on the basis of a provision of the Indian Evidence Act3, which states: Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

1 2

Taylor, 595 Monindra Mohan Sanyal v. E., 46 C 215: 46 IC 152: 19 Cr LJ 696. 3 Section 10, Indian Evidence Act

The illustration for the provision further states: Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A' s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. The basic contention of the appellant is that in the illustration which has been given in the provision all the action of the conspirators took place before they were brought to task for them by the law, thus these actions were done with an intention of attaining the desired end result of the conspiracy. But in the given case the accused sent the letters after being arrested, and thus he contends that as his actions were not done to further the goals of the conspiracy it must not be considered as relevant. To prove that the said letters in question were sent on a date post his arrest, the appellant would like these letters to be examined by an Ink Dating expert. This is as per provisions of Indian Evidence Act4, which states: When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting 2[ or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3[ or in questions as to identity of handwriting] 2[ or finger impressions] are relevant facts. Such persons are called experts. Thus by the permission and approval of the court the appellant would like to call a noted ink dating expert to prove that, the letters in question, were written by the appellant after his arrest.

Section 45, Indian Evidence Act

PRAYER FOR RELIEF

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS COURT MAY BE PLEASED TO:

I. HOLD THAT THE ACCUSED IS NOT-GUILTY OF MURDER.

II. Allow THE APPEAL FILED.

AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE APPELLANT