Académique Documents
Professionnel Documents
Culture Documents
COMPETITION, 2013
STATE OF GOA
(PROSECUTION)
v.
MAJ. (RETD.)J.S.RANA
(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
Issue-II
Prayer
16
iii
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
LIST OF ABBREVIATIONS
LIST OF ABBREVIATIONS
AIR
All
Cal
Cri LJ / Cr LJ
Cr.P.C.
Del
DW
Defence Witness
Ed.
Edition
Guj
IPC
IC
Indian Cases
Mad
n.
Ori
p.
Page No.
P&H
Pat
PW
Prosecution Witness
Raj
SC
Supreme Court
SCC
SCJ
SCR
Sec.
Section
v.
Versus
iv
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
TABLE OF CASES:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Hari Charan Kurmi and Anr v. State Of Bihar, AIR 1964 SC 1184
14.
15.
16.
17.
18.
19.
20.
21.
22.
v
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
BOOKS:
1.
2.
3.
Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
4.
5.
6.
vi
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES
7.
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)
LEXICONS:
1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)
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)
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.
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.
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.
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.
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
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED
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.
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED
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
10
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED
ii.
iii.
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
14
Jaffar v. State,2013(2) JCC 1175; Hari Charan Kurmi and Anr v.State Of Bihar, AIR 1964 SC 1184
15
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED
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.
iii.
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
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
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].
19
20
21
Ratanlal & Dhirajlal, Indian Penal Code, p. 835 ( 33rd Ed. 2012)
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
23
24
25
26
27
Ibid
28
Case Details, p. 1
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
30
31
32
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED
ii.
iii.
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
34
35
36
37
38
Ibid
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
10
ARGUMENTS ADVANCED
ii.
iii.
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
40
41
42
Ibid
43
44
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.
ii.
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
46
47
48
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
50
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
52
53
54
55
Ibid, Exhibit 1
56
57
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
59
60
61
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
15
ARGUMENTS ADVANCED
62
63
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.
Place: Goa
Date: May 29, 2013
S/d_____________
COUNSEL FOR THE DEFENCE