Vous êtes sur la page 1sur 27

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT

COMPETITION, 2013

BEFORE THE COURT OF SESSIONS


AT PANAJI, GOA

S.C. NO.467 OF 2013

STATE OF GOA
(PROSECUTION)
v.
MAJ. (RETD.)J.S.RANA
(DEFENCE)

FOR OFFENCES CHARGED UNDER:


SECTION 396 READ WITH SECTION 302 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

ii
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
TABLE OF CONTENTS

TABLE OF CONTENTS
Table of Contents

ii

List of Abbreviations

iii

Index of Authorities

iv

Table of Cases

iv

Books

Lexicons

vi

Websites

vii

Statutes

vii

Statement of Jurisdiction

viii

Statement of Facts

ix

Statement of Charges

Summary of Arguments

xi

Arguments Advanced

Issue-I

Whether Maj Rana is guilty of Dacoity?

Issue-II

Whether Maj Rana is guilty of Murder?

Prayer

16

MEMORANDUM ON BEHALF OF THE DEFENCE

iii
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

AIR

All India Reporter

All

Allahabad High Court

Cal

Calcutta High Court

Cri LJ / Cr LJ

Criminal Law Journal

Cr.P.C.

Code of Criminal Procedure

Del

Delhi High Court

DW

Defence Witness

Ed.

Edition

Guj

Gujarat High Court

IPC

Indian Penal Code

IC

Indian Cases

Mad

Madras High Court

n.

Foot Note no.

Ori

Orissa High Court

p.

Page No.

P&H

Punjab and Haryana High Court

Pat

Patna High Court

PW

Prosecution Witness

Raj

Rajasthan High Court

SC

Supreme Court

SCC

Supreme Court Cases

SCJ

Supreme Court Journal

SCR

Supreme Court Reporter

Sec.

Section

v.

Versus

MEMORANDUM ON BEHALF OF THE DEFENCE

iv
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES

INDEX OF AUTHORITIES
TABLE OF CASES:
1.

A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128

2.

Ajab Narain Singh v. Emperor AIR 1939 Pat 575

3.

Anvar uddin v Shahkoor, 1996 Cri LJ 1270 (SC)

4.

Awdhesh & Ors v. State of MP AIR 1988 SC 1158

5.

Badal Sheik v. State 1986 (2) Crimes- 316

6.

Bhobhoni Sahu v. King, AIR 1949 PC 257

7.

Chakru Sattiah v. State of AP AIR 1960 AP 153

8.

Chandra Mohan Tiwari v. State of MP AIR 1992 SC 891

9.

Dalbeer Kaur v. State of Punjab AIR 1977 SC 472

10.

Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102

11.

Emperor v. Jamunia Singh AIR 1945 Pat 150

12.

Haipal v. State, AIR 1998 SC 2787

13.

Hari Charan Kurmi and Anr v. State Of Bihar, AIR 1964 SC 1184

14.

Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184

15.

Jaffar v. State,2013(2) JCC 1175

16.

Janar Lal Das v. State of Orissa, 1991 (3) SCC 27

17.

Kashmira Singh v. State Of Madhya Pradesh, AIR 1952 SC 159

18.

Lakshman Prasad v. State of Bihar, 1981 CrLR 478

19.

Lal Chand v. State of Haryana AIR 1984 SC 226

20.

Mahmood v. State of UP AIR 1976 SC 69

21.

Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144

22.

Mohan Singh v. State of Punjab AIR 1965 Punj 291

MEMORANDUM ON BEHALF OF THE DEFENCE

v
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES

23.

Mohd Remzani v. State of Delhi AIR 1980 SC 1341

24.

Niranjan Das and Ors. v. Giridhari Das and Anr., 68(1989)CLT746

25.

R v. Moganlal 14 ILR Bom 115

26.

Rai Singh Mohima v. State AIR 1962 Guj 203

27.

Ram Autar v. State AIR 1954 All 771

28.

Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530

29.

Ram Prasad Mahton v. Emperor AIR 1919 Pat 534

30.

Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36

31.

Shyam Behari v. State Of Uttar Pradesh, AIR 1956 SC 320

32.

Southwark Borough London Council v. Williams (1971) 2 All ER 175

33.

State of AP v Kowthalam Narasimhula, 2001 Cr LJ 722 (SC)

34.

State of Bihar v Hanuman Koeri, 1971 Cri LJ 182 (Pat)

35.

State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868

36.

State of Punjab v. Bhajan Singh AIR 1975 SC 258

37.

State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC)

38.

Ugar Ahir v State of Bihar, AIR 1965 SC 277

BOOKS:
1.

Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

2.

Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal


Jurisprudence, (2nd Ed 1989)

3.

Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4.

Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5.

Harris, Criminal Law, (22nd Ed. 2000)

6.

Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

MEMORANDUM ON BEHALF OF THE DEFENCE

vi
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES

7.

I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

8.

I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

9.

II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

10. II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)


11. II, Princeps Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)
12. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)
13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003)
14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
15. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)
17. Modis Medical Jurisprudence and Toxicology, (23rd Ed. 2010)
18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology,
(6th Ed. 2002)
19. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
21. Sarkar, Law of Evidence, (13th Ed,1990)
22. Saxena & Gaur, Arms and Explosives, (10th Ed. 2012)
23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)
24. Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)
25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)

LEXICONS:
1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

MEMORANDUM ON BEHALF OF THE DEFENCE

vii
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES

WEBSITES:
1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com

STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)

MEMORANDUM ON BEHALF OF THE DEFENCE

viii

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION
The Honble 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 trialEvery 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 itWhen 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) notify the Public Prosecutor of the commitment of the case to the Court of Session.

MEMORANDUM ON BEHALF OF THE DEFENCE

ix
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
STATEMENT OF FACTS

STATEMENT OF FACTS
1. On the night of 31st December, 2012, the Montecito Hotel & Casino owned by Ms Shonli
Gujral, on the ship Aurora located on river Mandovi , hosted a high stakes poker game on
the Octavious floor. The chain of events that transpired that night are:
i.

Post 11p.m. of that night, the Octavious vault had been breached by four men dressed
in fine suits, though while making their exit the alarm got triggered.

ii.

Subsequently the four men ran towards the deck to make an exit, and threw eight
waterproof bags overboard into a motorboat. Two of the men escaped by rappelling
into a motorboat, while the other two awaited their turn to rappel down.

iii.

Just as the remaining two were about to make their escape, Mr. Michael Barbosa
(Chief Security Officer) ordered them to stop.

iv.

Thereafter Mr. Barbosa fired a warning shot in the air, however when they still did
not stop, he fired at one mans knee and subdued him, they disobeyed the order and
one of them took a guest as hostage in order to escape; subsequently the accused,
Maj. (Retd.) J.S. Rana (Head of Operations, Security) had shot dead the other man.

v.

The police reached the scene of crime at 12.15 a.m and Ms Shonali registered an
F.I.R against the accused.

2. Bhaskar Sanyal, on 4th February, 2013 confessed to the crimes under Sec. 164 of the Code
of Criminal Procedure, and further provided incriminating evidence against the accused. The
final report of the police was made on the complicity of the accused on the 14 th March, 2013.
3. On 16th May, 2013, an interim order was passed by the Sessions Court stating that the
charges under Sec.396/302 have been read out to the accused and that the chargesheet has
been served. The accused pleaded not guilty and claimed trial. The matter is listed for final
hearing before the Sessions Court, Panaji on the 29 th May 2013.

MEMORANDUM ON BEHALF OF THE DEFENCE

x
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
STATEMENT OF CHARGES

STATEMENT OF CHARGES
CHARGE 1
Maj. (Retd) J. S. Rana has been charged under Section 396 read with Section 302 the Indian
Penal Code, 1860 for the crime of Dacoity with Murder.

MEMORANDUM ON BEHALF OF THE DEFENCE

xi
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS
ISSUE I
WHETHER THE ACCUSED IS

GUILTY OF DACOITY?

It is humbly submitted before this Honble Court that the accused Maj. (Retd) J. S. Rana is
not guilty of the offence of dacoity as he was not a party to the dacoity that had taken place
on the 1st of January 2013, nor is there any direct evidence to link him to the crime. The
accused had not in any way participated in the crime as he was in charge of the security over
the Montecito, furthermore he had neither intention nor motive to commit such a crime and
thus, this crime cannot stand.

ISSUE II
WHETHER THE ACCUSED IS

GUILTY OF MURDER?

It is humbly submitted before this Honble Court that the accused is not guilty of murder as
the alleged crime which he had committed was done in exercise of his right to private defence
under section 103 of the IPC read with sections 80 and 81 of the IPC and thus he lacks the
requisite mens rea to commit such a crime. Furthermore the issue as to whether or not he had
committed the actus reus must be put into question as the direct evidence has several
infirmaries and inconsistencies. Hence the crime of murder cannot stand against the accused.

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

ARGUMENTS ADVANCED
ISSUE-I
WHETHER MAJ RANA IS GUILTY OF DACOITY?

It is humbly contended before this Honble Court that Maj. (Retd) J.S. Rana (hereinafter to be
referred to as the accused) is not guilty of the offences under Sec. 396/302 of the Indian
Penal Code, 1860 (hereinafter referred to as the IPC). In the matter at hand, it has been
wrongfully alleged that the accused has committed murder in course of committing dacoity.
The matter of a dacoity will be dealt with in the present issue (Issue I), while the charge of
murder will be disproved in the subsequent issue (Issue II).

Dacoity1 is robbery2 committed by five or more persons, with abettors who are present and
aiding when the crime is committed are counted in the number. To establish a charge under
this section, the prosecution must prove the following elements, beyond a reasonable doubt3:
The accused committed or attempted to commit robbery
Persons committing or attempting to commit robbery and present and aiding must
not be less than five; and
All such persons should act conjointly.

It is humbly contended that the accused did not commit or attempt to commit robbery [1.1]
nor did he act conjointly with the others [1.2] and that there are major discrepancies in the
oral testimony [1.3], coupled with heavy reliance by the Prosecution on unreliable
circumstantial evidence [1.4]
1

Sec 391, IPC

Sec 390, IPC

Shyam Behari v. State Of Uttar Pradesh, AIR 1956 SC 320

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

1.1 THE ACCUSED DID NOT COMMIT OR ATTEMPT TO COMMIT ROBBERY


It is contended that the accused did not have independent control over the security of the
Octavious floor. The statement made by accused clearly makes out that Mr. Michael Barbosa
(hereinafter to be referred as DW-4) and Ms. Shonali Gujral (hereinafter to be referred as
PW-1) could monitor the Octavious vault at all times even though they may not have been
tasked with the security of the Octavious floor. 4

The same can be inferred from the witness statements made by PW-1, We had taken the best
possible precautionary measures to avoid any incident and I had special men on guard.5
Thus, it is evident that there was more than one person privy to the security layout of the
vault.

Furthermore, it has been alleged that the accused participated by securing entrance of the
other perpetrators. It is to be noted that the accused did not have the authority to prepare the
guest list, the only authority given to him is merely to scrutinize the names given to him by
PW-1. Hence, the accused is not the authorized person, nor does he have the power to put in
names, he is merely to secure that the persons mentioned by PW-1 are of a proper
background.

It is submitted before this Honble court that in such circumstances one cannot pin point the
crime of dacoity on the accused, there is still a room full of doubt with respect to who aided
the co-accused and other persons in the crime of dacoity.

Case Details, Annexure 7, P. 15


Ibid, P.. 14

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

1.2 ALL SUCH PERSONS SHOULD ACT CONJOINTLY


The word conjointly refers to united or concerted action of five or more persons participating
in the act of committing an offence 6. From the aforementioned arguments, it is evident that
the accused did not assist the other accused persons in any form nor help them to commit the
offence. Therefore, it is humbly submitted that the threshold of acting conjointly does not
fulfilled.

1.3 THERE IS A DISCREPANCY IN THE TIME OF OFFENCE


It has alleged that the accused participated in the crime of dacoity. However, the prosecution
heavily relies on PW-2s statement, without proper corroboration by way of evidence, to
incriminate the accused. It is already a well settled principle of law that an accused cannot be
convicted, if there are inherent improbabilities in the prosecution evidence regarding
participation in crime, 7 given that an accomplices statement is of a weak evidentiary
value8.Therefore, it is the duty of the Court to scrutinise the evidence carefully and separate
the grain from the chaff. 9 The statement made by PW-2 suffers from several discrepancies
with certain statements of witnesses, with respect to the timeline of the offence:
i.

Witness statement of the DW-4 being Chief Security Officer of Monteceito states that
security took notice of the accused near the vault at 10:55 p.m.; just a few minutes
later they came out running with bags making an escape. 10

Niranjan Das and Ors.v. Giridhari Das and Anr., 68(1989)CLT746


Lakshman Prasad v. State of Bihar, 1981 CrLR 478
BhobhoniSahu v. King,AIR 1949 PC 257; Kashmira Singh v.State Of Madhya Pradesh, AIR 1952 SC 159
Ugar Ahir v State of Bihar, AIR 1965 SC 277

10

Case Details ,Annexure 7, P. 15

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

ii.

Witness statement of Ms. Zareen Malik (hereinafter to be referred as DW-2) stated


that as the accused were running on the deck, making their escape when it was
nearing 12o clock.11

iii.

Witness statement of Mr. Shekhar Subramniyam (hereinafter to be referred as DW-3)


states that he was taken hostage by one of the accused and heard the accused firing a
shot at around 11o clock.12

iv.

Confession of PW-2 states that the accused persons started commission of dacoity
post 11:30 p.m.when the guards changed their post13.

From the above, a discrepancy of half an hour can be clearly made out between the
confession and three of the witness statements. This half hour leaves enough time for someone else to have perpetrated the crime. It is thus clear that prosecution cannot make out a
proper chain of event of the offence.

Where the prosecution heavily rely on the confession of a co-accused person, the
presumption of innocence which is the basis of criminal jurisprudence is given to the accused
person and if such confession cannot be properly corroborated proving beyond reasonable
doubt then the accused person is entitled to the benefit of doubt.14 Thus, it is submitted
before this Honble Court that the statement given by PW-2 not be taken into consideration
since if the sole eye-witness contradicts himself, it would lead to an acquittal.15

11

Ibid, P. 15

12

Ibid. P. 16

13

Case Details, Annexure 8, P. 17

14

Jaffar v. State,2013(2) JCC 1175; Hari Charan Kurmi and Anr v.State Of Bihar, AIR 1964 SC 1184

15

Haipal V State, AIR 1998 SC 2787

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

1.4 CIRCUMSTANTIAL EVIDENCE IS UNRELIABLE


It is a well settled principle that where the case is mainly based on circumstantial evidence,
the court must satisfy itself that various circumstanced in the chain of evidence should be
established clearly and that the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused 16.

When even a link breaks away, the chain of circumstances gets snapped and other
circumstances cannot in any manner establish the guilt of the accused beyond all reasonable
doubts.17 When attempting to convict on circumstantial evidence alone the Court must be
firmly satisfied of the following three things: 18

i.

The circumstances from which the inference of guilt is to be drawn, must have fully
been established by unimpeachable evidence beyond a shadow of doubt

ii.

The circumstances are of determinative tendency, unerringly pointing towards the


guilt of the accused

iii.

The circumstances taken collectively, are incapable of explanation on any reasonable


hypothesis except that of the guilt sought to be proved against him

The prosecution fails to pinpoint how the accused is solely responsible for securing entrance
to the accused or instigating the commission of the crime, notwithstanding that the entire case
rests solely upon uncorroborated circumstantial evidence. Therefore, it is humbly submitted
before this Honble Court that the charge of dacoity against the accused cannot be made in
the present matter.

16

Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144

17

Janar Lal Das v. State of Orissa, 1991 (3) SCC 27; A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128.

18

Mahmood v. State of UP AIR 1976 SC 69

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

ISSUE-II
WHETHER MAJ RANA IS GUILTY OF MURDER?
It is humbly contended before this Honble Cour that the accused is not guilty for committing
the offence of murder under Sec 302 read with Sec 300, IPC, considering that the accused
was acting in private-defence [2.1], accident [2.2] and necessity [2.3]. Furthermore, the
Prosecutions case must be dismissed because of heavy reliance on uncorroborated
confession [2.4], improper ballistic evidence [2.5] and faulty investigation [2.6], all creating
the existence of a reasonable doubt [2.7].

2.1. The Accused was acting in Private Defence


The Defence humbly submits that the circumstance under Sec 103, IPC is fulfilled [A],
private defence was warranted [B] and reasonable force was used [C] in the instant matter.
A. Circumstance under Sec 103 is made out
Section 103 of the IPC enumerates that the right to private defence of property can extend to
causing death to causing in circumstances which have been listed in the provisions of section
10319 and robbery is clearly mentioned in said provision of the act 20 and dacoity is robbery
committed by 5 or more people at once 21 would enable this defence. In the case at hand the
crime that took place cannot be misconstrued as theft as there was harm caused to Mr. Shekar
Subramaniam (DW 3) and in such circumstances wherein the thief is carrying away the

19

Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530

20

Sec 103, IPC

21

Ratanlal & Dhirajlal, Indian Penal Code, p. 835 ( 33rd Ed. 2012)

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

property and he voluntarily causes hurt it would turn said theft into robbery 22 , private
defence would be justified.
B. Private Defence was warranted
A person such as a security guard who is employed to guard the property of his employer is
protected under section 103 if he causes death while safeguarding his employers property23.
Robbery by violence may be resisted by violence sufficient to overcome the robber and said
force would be a justified use of self defence 24. The right of self defence of property
commences the moment when there is a reasonable apprehension of danger to the property or
person, it is not necessary that the harm should take place as a mere apprehension shall justify
the use of section 103 25. In the matter at hand, the above provisions of law can be used by
virtue of

The accused was Head of Operations (Security) of the Montecito. He was bound to
protect all the people and property aboard the Ship26 and on the night of the crime he
had done so by shooting Brij Gopal (hereinafter referred to as the victim or the
deceased) as he was about to escape or cause more harm on board the Montecito 27.

PW 2 had held DW 3 hostage and caused harm to the hostage while one of the
accused made good with the money28 from the Ship.

22

Ajab Narain Singh v. Emperor AIR 1939 Pat 575

23

Emperor v. Jamunia Singh AIR 1945 Pat 150

24

Ram Prasad Mahton v. Emperor AIR 1919 Pat 534

25

Ram Autar v. State AIR 1954 All 771

26

Case Details, Annexure 7, p. 15

27

Ibid

28

Case Details, p. 1

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

It cannot be discredited that the accused could have had a reasonable apprehension of
the fact that further harm could be inflicted to another person, had exercised his right
of self defence in the heat of the moment resulting in Brij Gopals death.
C. Reasonable use of force

An act of self defence cannot be weighed on golden scales29 as a person whos property 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 when exercising self defence would be allowed
by the law30. The right of self defence 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 31, and this right extends till such time that the offender has
retreated, the property is retrieved, or until the assistance of the public authorities is
obtained32.
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 there was a
person being held hostage, and a dacoit who was going to either make good with the money
that he had stolen, or help his fellow dacoit, therefore the accuseds use of force in the heat of
the moment while not necessarily completely proportionate to the force required, was still
reasonable considering the circumstances at hand, and not excessive in any manner.

29

I, Nelson R. A. Indian Penal Code, p. 837 (10th Ed. 2008)

30

Mohd Remzani v. State of Delhi AIR 1980 SC 1341

31

Rai Singh Mohima v. State AIR 1962 Guj 203

32

Supra, n. 29, p. 841

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

2.2. THE ACCUSEDS ACTIONS WERE AN ACCIDENT


Under Sec 80, IPC, a criminal act which is an accident is not punishable as it is excuses the
accused from punishment due to a lack of mens rea, and it for the prosecution to prove
requisite intention or knowledge in cases of murder 33. The word accident is something that
happens unexpectedly or happens unintentionally34. The purely accidental result of a mans
voluntary conduct will not be imputed to him if 35i.

He had no criminal intention or knowledge

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 the
highest order, but that which is a reasonable precaution when seeing the facts of each case 36.
In the case at hand it could be seen that

While exercising his private defence it can be argued that Accused had accidently
ended Brij Gopals death unintentionally37.

It can be inferred from the statements of Accused that his alleged criminal actions
were an accidental one and he had no mens rea to commit such a crime 38, and without
intent a conviction cannot be made against the accused.

33

Chakru Sattiah v. State of AP AIR 1960 AP 153

34

Supra, n. 32, p. 528

35

Mohan Singh v. State of Punjab AIR 1965 Punj 291

36

Supra, n. 34, p. 533

37

Case Details, Annexure 7, p. 15

38

Ibid

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

10

ARGUMENTS ADVANCED

2.3. THE ACCUSEDS ACTIONS WERE A NECESSITY


To attract the defence under section 81 of the IPC it has to be proven that the actions of the
accused were done in good faith to prevent any other harm to the person or property of
others39 and due to an absence of mens rea the action or crime committed is excused 40. The 3
prerequisites to this section arei.

The Presence of the particular motive specified

ii.

The existence of good faith

iii.

The absence of intention to commit the crime; i.e. Criminal Intention41

If the situation warrants harm, the harm must not be intentional or with criminal intent 42.
Thus looking at the facts

The actions of Accused were necessary for the safety of the people and the property
of the people aboard the Montecito.

As seen in the facts of the case the shot fired by Accused was done in good faith with
a motive to prevent the robbery from taking place, furthermore barring Bhaskar
Sanyals statement 43 there is no other allegation of criminal intent of Accused to
commit such a crime in cold blood44.

The accuseds alleged criminal acts are those which are done out of necessity to
prevent a greater evil and he had under this section chosen the evil in which less harm

39

Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102

40

R v. Moganlal 14 ILR Bom 115

41

State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868

42

Ibid

43

Case Details, Annexure 8, p. 17

44

Case Details, Annexure 7, p. 14, 15, 16

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

11

ARGUMENTS ADVANCED

would have been caused or inflicted to others, hence excusing his acts under this
section45.

Therefore as Head of Operations (Security) Accused had shot Brij Gopal in order to
prevent any further damage or harm to the other people and the property of the
Montecito thus making his act an excusable one under section 81 of the IPC.

2.4 CONFESSION IS UNRELIABLE


The confession made by PW 2 is unreliable as it is of low evidentiary value [A],lacks
corroboration [B] and he is an interested witness [C].
A. Confession by co- accused is weak evidence
PW 2s confession cannot be seen as reliable as the confession by a co- accused is considered
as a very weak form of evidence which is on a very low footing 46, the reason for this scrutiny
and caution is being:
i.

He has motive to shift guilt from himself

ii.

He is immoral person likely to commit perjury on occasion

iii.

He hopes for pardon or has secured it, and so favours the prosecution 47

The Apex Court has held that confessions of a co- accused cannot be used against the accused
unless the Court is morally satisfied on other evidence that the accused is guilty 48. In the
immediate matter before this court we can see that all of the aforementioned 3 principles

45

Southwark Borough London Council v. Williams (1971) 2 All ER 175

46

State of Punjab v. Bhajan Singh AIR 1975 SC 258

47

Lal Chand v. State of Haryana AIR 1984 SC 226

48

Badal Sheik v. State 1986 (2) Crimes- 316

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

12

ARGUMENTS ADVANCED

could easily be true as PW 2 is of admitted ill repute and it would be ideal for him to shift the
blame from himself to the accused thus making Accused seem like the mastermind of this
entire plan.
B. Confession lacks Corroboration
A conviction made on the basis of a confession by a co- accused in absence of corroboration
from other independent evidence would be considered very unsafe to do49. Corroboration on
material particulars means that there should be some additional or independent evidence
that50i.

Renders the story told by the accomplice true and reasonably safe to act upon.

ii.

Identifying the accused as one of those or among those who committed the offence

iii.

Showing direct or circumstantial evidence linking the accused with the crime

iv.

Ordinarily the testimony should not be sufficient to corroborate that of the other

Bhaskars statement is without corroboration as everything that had been stated by him has
been unsupported by the facts, and could easily be fictional as the only person available for
the corroboration is deceased. Neither DW 2, 3, nor 4 had heard accused speak briefly to the
deceased, nor had they seen him shoot the deceased at point blank range.
C. PW 2 is an interested witness
It is further contended that PW 2 falls within the category of an interested witness as the
accused had allegedly shot his mentor and friend Brij Gopal. An interested witness is one
who postulates that the person concerned must have some direct interest in seeing that the
accused is somehow convicted, due to the fact that he has an animus or ill will with the
49

Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184

50

Ratanlal, Dhirajlal, Law of Evidence, p. 801(24th Ed. 2011)

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

13

ARGUMENTS ADVANCED

accused or for any other reason51, seeing PW 2 falls within this category, the court must tread
lightly when taking into account his statements52.
2.5 BALLISTIC REPORT IS INCONCLUSIVE
As per the Forensic Report,53 three guns were recovered from Auroras deck, with no fingerprints found on any of the weapons. Furthermore, from the 4 empty bullets found on the
crime scene, the ballistic expert failed to categorize as to which shot was the fired, fatal one,
with evidence being available to only to match 3 bullets to the Glock .38 handgun 54 , owned
by Miachael Barbossa and one to the Smith and Wesson custom engraved model 60, .38
revolver 55 used by the accused.
With no marks or even blood found on any of the bullets, there is a high ambiguity as to
exactly what bullet was fired, which gun was used and by whom. . So without any convincing
evidence that the gun was used by the accused, mere recovery of the gun will not in any way,
help the prosecution. 56
Where the expert evidence is obscure and oscillaring, it is not proper to discredit the direct
testimony of the eye-witnesses on such uncertain evidence. 57 In cases where the medical

51

Dalbeer Kaur v. State of Punjab AIR 1977 SC 472

52

Chandra Mohan Tiwari v. State of MP AIR 1992 SC 891

53

Case Details , Annexure 6, p. 12

54

Case Details, Exhibit 2, p.2

55

Ibid, Exhibit 1

56

State of Bihar v Hanuman Koeri, 1971 Cri LJ 182 (Pat)

57

Anvar uddin v Shahkoor, 1996 Cri LJ 1270 (SC)

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

14

ARGUMENTS ADVANCED

evidence and the oral evidence do not match to create the same story it would be unsafe for
the courts to maintain a conviction on the same 58and thus, the accused ought to be acquitted.
2.6 FAULTY INVESTIGATION
The fact that the deceaseds body was found in the prone position59 and not in the supine
position, coupled with the fact that the deceaseds upper body turned towards the accused (as
opposed to away from the accused, had he been shot in the frontalis) shows that the position
of the body was either improperly recorded by Inspector Aamir Bashir (PW4) or was shifted,
showing serious contamination of the crime scene. There is thus a grave possibility that vital
evidence such as fingerprints, DNA, hair, residue on the victims clothes or other material
piece of information may have been lost by virtue of callous and/or faulty investigation
techniques.
Moreover, no blood or footprints were recovered from the crime scene. Given that the
accused was also persent at the scene of crime, a gunshot-residue test could have been
conducted and his finger prints could also have been taken. Thus, no proper handling of
investigation ,would lead to an acquittal60
The Apex Court has held that in cases where there are a number of infirmaries in the
evidence of the eyewitnesses the benefit of the doubt is given to the accused 61, bearing in
mind that DW 2, 3, 4 had not seen the accused commit the actus reus. It would be thus be
highly unsafe to convict the accused for the crime.

58

Awdhesh & Ors v. State of MP AIR 1988 SC 1158

59

Case Details, Annexure 1, p. 3

60

State of AP v Kowthalam Narasimhula, 2001 Cr LJ 722 (SC)

61

State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC)

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

15

ARGUMENTS ADVANCED

2.7 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 62.
The prosecutions arguments are leaning towards the fact that the crime may have been
committed by the accused, however they have failed to make the link between may have
committed the crime and must have committed the crime and that gap must be filled by the
prosecution by legal, reliable and unimpeachable evidence before a conviction can be
sustained63.
Therefore, it is humbly submitted before this Honble Court that the charge under section 302
of the IPC has not been made out due and he should be acquitted of the same.

62

Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36

63

IV. Nelson R. A. , Indian Penal Code, p. 2905 , (10th Ed. 2008)

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

16

PRAYER

PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Honble Court be pleased to:

1. Acquit Maj (Retd) J.S.Rana of the offence of committing dacoity with murder under
Sections 396/302 of the Indian Penal Code, 1860.

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: Goa
Date: May 29, 2013

S/d_____________
COUNSEL FOR THE DEFENCE

MEMORANDUM ON BEHALF OF THE DEFENCE