Nobility Defence

TEAM CODE: NOBILITY
IN THE DISTRICT AND SESSION COURT OF DELHI

AT DELHI
REKHA DAS AND ORS.

(Defendant)
V.
STATE OF DELHI
(Prosecution)
On Submission to the
IN THE DISTRICT AND SESSION COURT OF DELHI
AT DELHI
MEMORIAL ON BEHALF OF DEFENDANT

2nd AURO UNIVERSITY NATIONAL MOOT COURT COMPETITION 2016
TABLE OF CONTENTS
LIST OFABBREVIATIONS....III
INDEX OF AUTHORITIES.....IV-VII
STATEMENT OFJURISDICTION..............................................................................VIII
STATEMENT OF FACTS....IX
STATEMENT OF CHARGESX
STATEMENT OF ISSUES...XI
SUMMARY OF ARGUMENTS............................................................................................XII
ARGUMENTS ADVANCED.XIV-XXVIII
PRAYER............................................................................................................................XXIX

TABLE OF ABBREVATION
ABBREVIATIONS
WORDS
AIR
All India Reporter
Anr.
Another
App.
Application
C.J.
Chief Justice
J.
Justice
No.
Number
p.
Page
Para.
Paragraph
SC
Supreme Court
SCC
Supreme Court Cases
SCJ
Supreme Court Journal
Edn.
Edition
V.
Versus
Vol.
Volume
Ltd.
Limited
Comp.
Company
Pvt.
Private
Sec.
Section
Aug
August
Apr.
April
INDEX OF AUTHORITIES
BOOKS REFERRED: Ratanlal and Dhirajlals Law of Crimes, Vol I, 27
th
Edn. Reprint 2013,
Bharat Law House, New Delhi.

th
Ratanlal and Dhirajlals Law of Crimes, Vol II, 25 Edn. Reprint 2007,
Bharat Law House, New Delhi.
BasusCode of Criminal procedure, Vol I, 10
th
Edn. 2007, Ashoka Law
House, New Delhi.

th
C D Field, Expert Evidence, 4 Edn. Reprint 2009, Delhi Law House.
th
R A Nelsons Indian Penal Code, 9 Edn. 2003, LexisNexis Butterworths.
th
Justice V V Raghavan, Law of Crimes, 5 Edn. Reprint 2001, India Law
House, New Delhi.
th
S M A Qadri, Ahmad Siddiques Criminology, 5 Edn. Reprint 2007,
Eastern book Comp.

th
Ratanlal and Dhirajlal , The Indian Penal Code, 29 Edn. 2002, Wadhwa
Nagpur.
th
Sarkar on Criminal Procedure, 8 Edn. Reprint 2004, India Law House.
th
S V JogaRao, Law of Evidence, 17 Edn. 2001, Butterworths, New Delhi.
st
Ratanlal and Dhirajlal, Law of Evidence, 21 Edn. Reprint 2005, Wadhwa
and Comp., Nagpur.
th
P S A Pillai, Criminal Law, 9 Edn. 2000, Butterworths, New Delhi.
rd
R P Kathuria, Supreme Court on Criminal Law, 3 Edn. 1984, Kathurias Publication Dr.
th
(Sir) Hari Singh Gour, Penal Law of India, 11 Edn. in 4 volumes Reprint 2004, Law
Publishers (India) Pvt. Ltd.
th
J C Smith, Smith and Hogan Criminal Law Cases and Materials, 8 Edn. 2002, LexisNexis
Butterworths.
th
BasusIndian Penal Code (Law of Crimes), Vol I, 9 Edn. Reprint 2004,
Ashoka Law House.
Criminal Manual 2005, Universal Law Publishing Company.
DR. V. Krishnamachari, Law Of Evidence, 6th Edn., S. Gogia & Company.
WEBSITES REFERRED:
www.lexisnexis.com
www.manupatra.com
www.judis.nic.in
DICTIONARIES:
Oxford Advance learners dictionary, 8th edition, Oxford university

press, 2010
Concise Legal dictionary, Allahabad Law House,Faridabad,2004
Murrays Dictionary
Black's Law legal dictionary
STATUTE REFFERED:
1.
The Indian Penal Code, 1860
2.
The Criminal Procedure Code, 1973
3.
The Indian Evidence Act, 1872

4. The Constitution of India, 1950

CASES CITED AND REFERRED

State of Madras v. Vaidyanatha Iyer, AIR 1958 SC 61.
Sonti Rambabu @ Ramu, S/o Nancharaiah vs. State of A.P. , MANU/AP/0865/2004.
Gagan Kanaujia and Anr. Vs. State of Punjab, MANU/SC/8726/2006.
State V. Pradeep, Sessions Case Number : 349 of 2013.
Philips Fadrick D Souja and Ravindra @ Balu Pandurang Kambre vs . The State of
Maharashtra and The Inspector of Police, MANU/MH/0842/2008.
Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh,
MANU/SC/0358/2001.
Jamsing Hulya Barela vs. The State of Maharashtra, MANU/MH/0444/2010.
Gaurav @ Vicky vs . State, MANU/DE/3275/2013.
Lechu Meah and Ors . vs . The State and Ors ., LEX/BDHC/0146/2013.
Sita Raut @ Sita Yadav , Teju Raut and Khenhar Raut vs . The State of Bihar and
Bagar Raut, MANU/BH/1172/1999.
V.L Tresa v State of Kerala, Tresa V L (2001) 3 SCC 549: 2001 Cri LJ 1171 (SC): AIR 2001
SC 953 : (2001) 1 Crimes 240 (SC): (2001) 2 JT 575.
Podda Narayana v. State of Andhra Pradesh, 1975 Cri LJ 1062(SC):AIR 1975 SC 1252 :
(1975).
State of Karnataka v Madesha and Ors, MANU/SC/7745/2007.
Palvinder Kaur v. The State of Punjab, MANU/SC/0038/1952.
Indra Dalal Vs. State of Haryana, MANU/SC/0661/2015.
Salim Vs. State of Kerala, MANU/KE/1324/2012.
Esher Singh v. State Of Andhra Pradesh, 2004 (4) ALT 28; HALSBURYS LAW OF
ENGLAND 44(Lord Hailshameds, 4thed 1987).
State v. Navjot Sandhu, 2005 Cri LJ 3950(SC).
State of Tamil Nadu v. Jayalalitha, (2000) 5 SCC 440.
Vijay Kumar v. State, 2014(4) JCC 2494.
Police v. Narender Singh, AIR 2006 SC 1800.
Reg. v. Cruse, 1838 C&P 541.
Parichhat v. State Of Madhya Pradesh, 1972 Cr LJ 322(SC).
Sheoram Singh v. State of Uttar Pradesh, AIR 1972 SC 2555.
Wasim Khan v. State of Uttar Pradesh, AIR 1956 SC400.
Gangaram Kondiba Ingle v. State Of Maharashtra, 2000 Cr.Lj 336 (Bom).
Kedar Nath v. State of Madhya Pradesh, (1991) Cr Lj 989(SC).
Lakshmi and Ors. v. State of U.P. , MANU/SC/0715/2002.
State of Bihar v. Raj Kumar Mahto, 2006 Cr.Lj 4666.
Haricharan Kurmi v. State Of Bihar, AIR 1964 SC 1184.

State of Manipur v. Okram Jitan Singh, 2005 Cr LJ 1646.
Arvind v. State (Delhi Admn.), 1999(4) SCC 4861.
Kailash Gour and Ors. v. State Of Assam, MANU/SC/1505/2011.
Selvi v. State Of Karnataka, Criminal Appeal No. 1267 of 2004
Mousam Singh Roy v. State of West Bengal, 2004 3 SCC 753.
Raghunath v. State of Haryana, AIR 2003 SC 165.
Madhari v. State of Chattisgarh, 2002 Cr LJ 2630 (SC).
Ramakant Rai v. Madan Rai, Cr.Lj 2004 SC 36.
State of Maharashtra through CBI vs. Ahmad Shah Khan and Anr., Criminal Appeal No.
1438 of 2013
V.C. Rao v. Ponna Satyanarayana, AIR 2000 SC 2138
The Superintendent Central ... vs Shri Suresh Mulchand Seth, 2008 (110) Bom L R
361
Chandubhai Abhesingbhai Chauhan vs State, Criminal Appeal No. 2238 of 2008
State Of Assam vs Anupam Das, 2008 CriLJ 1276
Trimukh Maroti Kirkan v. State of Maharashtra, MANU/SC/8543/2006
Sunil Clifford Daniel v. State of Punjab, MANU/SC/0740/2012
Sampath Kumar v. Inspector of Police, Krishnagiri, MANU/SC/0188/2012
Mohd. Arif @ Ashfaq v. State (NCT of Delhi), MANU/SC/0919/2011
C. Chenga reddy v. state of a.p., MANU/SC/0928/1996
STATEMENT OF JURISDICTION
The counsels humbly submit Memorandum on the behalf of the prosecution in the matter of
Rekha Das and Anr vs. State of Delhi.
The council for the prosecution has endorsed their pleading before the
District and Session Court of Delhi under the aegis of section 209 of CrPc.
STATEMENT OF FACTS
For the sake of brevity and the convenience of this Honble Sessions Court the Counsels for the
Defendant would summarize the gist and narrate the facts very briefly in the chronological
order:
Trisha Das was born to Rekha Das and Siddhartha Das. They split and Rekha left Trisha in
Mumbai, she moved to Delhi. There she met Suhas Kumar, they split up with but remain
good friends. Rekha settled down with Jacob Mukerjee and called Trisha to live with her.

Trisha was introduced to Shobhit Mukerjee, son of Jacoob Mukerjee from an earlier
marriage, they indulge in illicit relationship and Trisha got pregnant. It was alleged, Rekha
did not approve of the relationship and Trisha had to abort her child due to her pressure.
On 24 Apr 2012, Shobhit received a breakup SMS. Rekha claimed that she had gone to the
US for higher studies. Shobhit approached police to file a complaint but it was not
registered. He confronted Rekha for Trishas whereabouts. She told him that Trisha did not
want to be in relationship with him and gone to US. He told her passport was in his custody
to which he replied they got another passport. Rekha was kept under surveillance.
Rekhas driver Sahu was arrested in an unrelated case and during his interrogation he
allegedly revealed details about Trisha's murder. On 23 May 2012, local police found a
decomposed body at Kausani forest, the skeletal remains were not linked with Trisha Das.
As per the FIR filed by Delhi police, Sahu gave a statement to the police that the murder
was planned by Rekha, who discussed the plan with Suhas Kumar. Allegedly Rekha rented
an Opel Corsa for the abduction and killing and to dispose of the body. Trisha was picked
by Rekha, Suhas and driver Shyam Sahu in the car where Kumar allegedly strangled her.
Police said that after murder, Trisha's body was taken to Rekha's house where it was put in
a bag and stuffed in the boot of the car. The early morning,the three accused drove to the
village of Kotpuli, Kausani forest area, the accused poured petrol over the bag in which
body was stuffed (the driver brought petrol from Shri Ram petrol pump situated on the High
way connecting Kotputli forest) and set it ablaze, police said.
On Aug 25,2015, Delhi police arrested Rekha alleging her of murdering Trisha. Rekha was
charged under sec. 364,313,302, 201,120B and 34 of IPC. On Aug 26,2015,Suhas Kumar
and Sahu was also arrested and charged under sec. 364, 302, 201, 120-B and 34 of the IPC.
STATEMENT OF CHARGES
CHARGES I, II, III, IV & V
ACCUSED 1- REKHA DAS

ACCUSED 2- SHYAM SAHU
10
ACCUSED 3- SUHAS KUMAR
ACCUSED 1, 2 AND 3 HAVE BEEN CHARGED WITH CRIMINAL

CONSPIRACY, KIDNAPPING OR ABDUCTING IN ORDER TO
MUDER, MURDER, CAUSING DISAPPEARANCE OF EVIDENCE
OF OFFENCE, OR GIVING FALSE INFORMATION TO SCREEN
OFFENDER. UNDER SECTION 120 B, SECTION 364, SECTION
302, SECTION 201 READ WITH SECTION 34 OF THE INDIAN
PENAL CODE, 1860.
ACCUSED
HAS
MISCARRIAGE
BEEN
WITHOUT
CHARGED
WOMANS
WITH
CAUSING
CONSENT
UNDER
SECTION 313.
STATEMENT OF ISSUES
11
ISSUE 1- Whether Accused 1, 2 and 3 are liable for the

offences charged under section 120B and 302 read with
section 34 of the Indian Penal Code
ISSUE 2- i) Whether Accused 1, 2 and 3 are liable for the

offences charged under section 201 and 364 of the Indian
Penal Code.
AND
ii)
Whether Accused 1 is liable for the offence charged
under section 313 of the Indian Penal Code.

12
SUMMARY OF ARGUMENTS

13
1. - Whether Accused 1, 2 and 3 are liable for the offences charged

under section 120B and 302 read with section 34 of the Indian
Penal Code.
This particular issue contests that the accused are not liable for the
charges of (i) section 120B because there was no agreement to do an
illegal act , moreover none of the accused have committed the illegal act.
Also there is no direct evidence which can prove the guilt of the accused
beyond reasonable doubt. (ii) section 302 IPC, as they have not killed
Trisha Das. No evidences neither direct nor circumstantia evidence can
prove the guilt of the accused beyond reasonable doubt (iii) Section 34 IPC,
as there was no criminal act done by all the accused in furtherance of the
common intention
2. (i)Whether Accused 1, 2 and 3 are liable for the offences charged

under section 201 and 364 of the Indian Penal Code.
This particular issue contests that the accused are not liable for the
charges of (i) section 201,IPC as there was neither any false information
given by the accused nor they have fabricated the evidences (ii) section
364, IPC as the accused did not abducted Trisha Das in order to
murder.There is no direct evidence which can prove that the accused have
abducted Trisha Das.
(ii) Whether Accused 1 is liable for the offence charged under

section 313
This particular issue contests that the Accused 1 is not liable for the
charge of (i) section 313 IPC, as she never forced Trisha Das to abort her
child. Whatever is said against the accused 1 is mere allegations, no
14
evidences suggest that she forced Trisha to abort her child without the
consent and also there are no evidence which suggests that whether even
abortion happened or not.

15
ARGUMENTS ADVANCED
ISSUE 1: CHARGE I&II: THE ACCUSED ARE GUILTY OF

CONSPIRACY ALONG WITH ACT DONE BY SEVERAL
PERSONS IN FURTHERANCE OF A COMMON INTENTION
It is humbly contended before this Honble Court that the accused Rekha
Mukherjee, Suhas Kumar and Shyam Sahu are not guilty of the offences
under Sec 120 B along with Sec 34 of the Indian Penal Code, 1860. In the
instant matter there was no conspiracy to kidnap or abduct in order to
murder Ms. Trisha Das thereby no action of murdering Ms. Trisha Das took
place in furtherance of the common intention.
[A] ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY
Criminal Conspiracy as defined under Sec. 120A 1 consists of an agreement

between two or more persons to commit an illegal act or a legal act by
illegal means.2
1
2
Indian Penal Code, 1860

Esher Singh v. State Of Andhra Pradesh, 2004 (4) ALT 28; HALSBURYS LAW OF ENGLAND 44(Lord
Hailshameds, 4thed 1987)

16
The elements of a Criminal Conspiracy are: Agreement between two or

more people by whom the agreement is effected, a criminal object which
may be either the ultimate aim of the agreement, or may constitute the
means, or one of the means by which that aim is to be accomplished.3
[A.1] No Commission of An Illegal Act
As per Section 10 of the Indian Evidence Act, there must be some prima
facie evidence in proof of the existence of conspiracy4.
From the facts of the instant case, from nowhere can it be propounded that
there was commission of any illegal act on the part of the defendants. The
evidences which came before the court, do not draw a conclusive proof
that can prove the commission of the offence.
To apply this provision it has to be shown that there exists a reasonable
ground to believe that conspiracy in between the accused took place. This
condition gets satisfied when there is some prima facie evidence to show
the existence of conspiracy. No such evidences exist in the present case.
In the instant case, confession made by Sahu, was whilst he was in police
custody. A person when in police custody is presumed to be under the
control and influence of police. Therefore, a confession made not only to
State v. Navjot Sandhu, 2005 Cri LJ 3950(SC)
The Superintendent Central ... vs Shri Suresh Mulchand Seth, 2008 (110) Bom L R 361

17
the police officer but to anyone is irrelevant under section 26 5. Sahu later
denied all the facts stated in FIR and his confessions before the court.
Therefore, making the whole scenario null and void. Thereby constituting
the fact, that no act of any sort took place.
Section 276 states the admissibility of information received from an

accused during the investigation. The section is based on the view that if a
fact is actually discovered in consequence of information given, it would be
admissible.
Taking Sec.27 into consideration, the three evidences that came before the
court are also inadmissible. Firstly, as admitted by Sahu, the three accused
went to the kasauni forest by car. The car used for abduction was not
recovered. Secondly, Kumar also denied his confession before the court.
The petrol pump attendant could also not recognize Sahu at a later stage.
[A.2] No Agreement or understanding between the accused
The provision of Sec 120A and 120B IPC states that the offence of
conspiracy lies not in doing the act, or affecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor in inciting others
5 Chandubhai Abhesingbhai Chauhan vs State, CRIMINAL APPEAL NO.2238 of 2008
Indian Evidence Act, 1872

18
to do them, but in the forming of the scheme or agreement between the

parties.7
In the case, State of Tamil Nadu v. Jayalalitha 8 it was held that unless
the court has some material to believe that there exists a reasonable
ground that two or more people have conspired together to commit an
offence, a person cannot be charged under the said section.
For an offence under section 120-B9 the intention must proceed to an

agreement.10
In the instant matter, there was no intention to kidnap in order to commit

murder. None of the witness, statements or events of the case depicts that
the accused had agreed over the intention to commit the murder of the
deceased. There is no direct evidence to prove any intention and a
conspiracy in the same regard.
According to section 26 of the Evidence Act, Confession by accused while

in custody of police not to be proved against him11
Hira Lal Hari Lal Bhagwati, C.B.I. 2003 SCC (Cri) 1121
(2000) 5 SCC 440
Indian Penal Code.
10 Vijay Kumar v. State, 2014(4) JCC 2494

11 Ibid 5

19
It was held in the case of, Police v. Narender Singh12, that a confession
made by the accused whilst in police custody is invalid.
Thus it is clear from the materials available on record that there was no
common design between all these accused to do any illegal act. Therefore,
it is humbly submitted that no conspiracy on part of the accused can be
proved beyond reasonable doubt.
[B] ACCUSED ARE NOT LIABLE FOR ACTS DONE BY SEVERAL

PERSONS IN FURTHERANCE OF COMMON INTENTION
Section 34 of the Penal Code creates no specific offence. It only lays down
a rule of evidence that if two or more persons commit a crime in
furtherance of a common intention, each of them will be held liable jointly
on the principle of group liability.13
To attract the principle of Sec. 34, the following three conditions must
exist, viz.,
A criminal act must be done by several persons;
There must be a common intention of all to commit that criminal act:
There must be participation of all in the commission of the offence in furtherance of that
common intention.14
12 AIR 2006 SC 1800
13 Reg. v. Cruse, 1838 C&P 541
14 Parichhat v. State Of Madhya Pradesh, 1972 Cr LJ 322(SC)

20
In the instant case, there exists no direct evidence so as to prove the

commission of a criminal act. Sahu, on whose confessions the case was
structured, denied all the facts stated in FIR and his confessions before the
court. At a later stage, during the investigation, no evidences have been
found in corroboration to the confessions of Sahu. Hence giving no
reasonable grounds to believe the commission of acts by the accused in
furtherance of a common intention.
In the case of Sheoram Singh v. State of Uttar Pradesh15 the Supreme

Court held that unless there is cogent evidence and clear proof of the
intention of the accused during the course of the occurrence, the accused
cannot be vicariously held guilty under sec 3416
Similar was the view of the honble court in the case of Wasim Khan v.
State of Uttar Pradesh.17
CHARGE III : THE ACCUSED ARE GUILTY OF MURDER
It is humbly contended before this Honble Court that the accused Rekha
Mukherjee, Suhas Kumar and Shyam Sahu are not guilty of the offence of
murder under section 302, IPC, punishable under section 302 read with
section 34 of the Indian Penal Code, 1860, considering Lack of Motive and
15 AIR 1972 SC 2555
16 Indian Penal Code
17 AIR 1956 SC400

21
Intention on the part of the accused [C.1], No Direct Evidence. [C.2].

Furthermore, the Prosecutions case must be dismissed because of heavy
reliance on inadmissible confession and circumstantial evidence [C.3],
faulty investigation [C.4], all creating the existence of a reasonable doubt
[C.5].
C.1. LACK OF MOTIVE AND INTENTION ON THE PART OF THE ACCUSED
Section 300 of the IPC defines Murder.18

No person shall be convicted for a criminal offence unless, evidences
given, prove the motive of the accused.19
It was held in the case of Gangaram Kondiba Ingle v. State Of

Maharashtra20,
that mere suspicion of motive is not sufficient to frame charges against an
accused, unless proved.
In the instant scenario, there is no motive of any sort, in order to

commit the murder of the deceased. And anything, if otherwise
portrayed, has no evidence at its end.
18 Chapter XVI,IPC
19 MANU/DE/1153/2010
20 2000 Cr.Lj 336 (Bom)

22
C.2. NO DIRECT EVIDENCE
It was held in the case of Kedar Nath v. State of Madhya Pradesh 21

that, when there is no evidence as to how death came about, evidence
relating to charge of murder is held to be insufficient and unacceptable.
The Supreme Court in the case of Lakshmi and Ors. v. State of U.P. 22
stated that the identification of body, cause of death and recovery of object
with which the injury may have been inflicted on the deceased are the
important factors to be established by the prosecution to bring home the
charge of offence under section 302.23
The instant case, is solely relying on the inadmissible confessions and
unproved circumstantial evidences.
C.3.
HEAVY
RELIANCE
ON
INADMISSIBLE
CONFESSION
AND
CIRCUMSTANTIAL EVIDENCE
Confessions made by Shyam Sahu were whilst in police custody. According

to section 26, any confessions made by the accused while in the custody of
police, is inadmissible24.
21 (1991) Cr Lj 989(SC)
22 MANU/SC/0715/2002
23 Indian Penal Code
24 State Of Assam vs Anupam Das, 2008 CriLJ 1276

23
It was held in the case of State of Bihar v. Raj Kumar Mahto, a

confessional statement made by the accused while in police custody, which
does not lead to the recovery of facts, cannot be used in evidence as
confessional statement is hit by section 26 of the Indian Evidence Act.25
In the instant case, no relevant fact, which proves the guilt of the accused
beyond reasonable doubt, could be discovered in consequence of the
information received by Shyam Sahu in his confession whilst in police
custody, thereby making it inadmissible. 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
do. 26
Corroboration on material particulars means that there should be some

additional or independent evidence that.27
1 Renders the story in the F.I.R. true and reasonably safe to act upon.
2 Shows direct or circumstantial evidence linking the accused with the
crime
Shyam Sahus statement is without corroboration as everything that had
been stated by him has been unsupported by the facts, and could easily be
fictional. Neither the petrol pump attendant Rambahadur identified Sahu
before the court nor could the car used for abduction be recovered. Adding
on to this, Sahu denied all the facts stated in the F.I.R in his confession
before the court, so did Suhas Kumar, thereby making the past confessions
completely inadmissible.
25 State of Bihar v. Raj Kumar Mahto, 2006 Cr.Lj 4666

26 Haricharan Kurmi v. State Of Bihar AIR 1964 SC 1184
27 Ratanlal, Dhirajlal, Law of Evidence, p.801 (24th Ed. 2011)

24
In the case of State of Manipur v. Okram Jitan Singh 28 it was held that
the accused cannot be convicted on the basis of circumstantial evidence if
there is missing link in the chain of events to prove the circumstances
conclusively against the accused.
It was held in the case of Arvind v. State (Delhi Admn.)29, that, the chain
of evidence must be complete with fully established circumstances not to
leave any reasonable ground for a conclusion consistent with the
innocence of accused. It should be of conclusive nature.
In a case based on circumstantial evidence, the circumstances from which

the conclusion of guilt is to be drawn have not only to be fully established
but all the circumstances so established should be of conclusive nature and
consistent with the hypothesis of the guilt of the accused. Moreover, all the
established circumstances should be complete and there should be no gap
in the chain of evidence.30
C.4. FAULTY INVESTIGATION

The honble Supreme Court in the recent case of, Kailash Gour and Ors.
v. State Of Assam31 held, that if the investigation of the case is faulty and
does not prove the guilt of the accused beyond reasonable doubt, accused
is presumed to be innocent and cannot be convicted and sentenced for the
28 2005 Cr LJ 1646
29 1999(4) SCC 4861
30 MANU/SC/3346/2007
31 MANU/SC/1505/2011

25
same. The benefit arising from any such faulty investigation ought to go to
the accused and not to the prosecution.
In the instant case, police lacked in the investigation process. Firstly a
delay in registering F.I.R was caused. Then the body went unreported for
forty months. After the linking up of the body with the instant case, as the
body was completely burnt, the cause of death remained a mystery. The
other evidences and confessions as stated in F.I.R. stand inadmissible, as
neither could the car used for abduction be recovered nor was there any
investigation regarding the renting of opel corsa, hotel stay, flight tickets.
The petrol pump attendant also could not identify Sahu before the court
thereby altogether nullifying everything stated in the F.I.R, and making it a
fictional story. The silent fact as to whether the narcoanalysis test was
done voluntarily or otherwise gets revealed when Suhas, and Sahu deny
their confessions before the court thereby showing lack of consent at the
time of test, and making it inadmissible.32
C.5. EXISTENCE OF A REASONABLE DOUBT
Going with the judgment of the apex court in the case of Mousam Singh
Roy v. State of West Bengal 33, It is a settled principle of criminal
jurisprudence that the serious the offence the stricter the degree of proof
required to convict the accused.
The apex court in the recent case of, Raghunath v. State of Haryana34
stated that if two views are possible, one in favour of the accused and the
32 Selvi v. State Of Karnataka
33 2004 3 SCC 753

26
other adversely against it, the view favoring the accused must be accepted.
In the case of, Madhari v. State of Chattisgarh35 the court discussed

about the ligaltive mark on the neck of the deceased, hence after analysis
constituting that such a mark cannot be caused by strangulation, thereby
pacifying the case of the accused.
In order to sustain conviction, circumstantial evidence shall be complete

and incapable of explanation of any other hypothesis than that of guilt of
Accused beyond reasonable doubt36
In cases based on circumstantial evidence, every circumstance would have
to be proved beyond reasonable doubt and further the chain of
circumstances should be so complete and perfect that the only inference of
the guilt of the accused should emanate therefrom.37
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 the prosecution must fill that gap by legal,
reliable
and
unimpeachable
evidence
before
conviction
can
be
sustained.38
35 2002 Cr LJ 2630 (SC)
36 MANU/SC/0603/2012
37 MANU/SC/0145/2011
38 Ramakant Rai v. Madan Rai, Cr.Lj 2004 SC 36

27
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 the accused
should be acquitted of the same.
ISSUE 2. CHARGE IV- THE ACCUSED ARE GUILTY OF GIVING
FALSE
INFORMATION
AND
CAUSING
DISAPPEARANCE
OF
EVIDENCE OF OFFENCE.
Section 201 of IPC39 deals with causing disappearance of evidence of
offence, or giving false information to screen offender
The following ingredients must be present to hold a person liable under
this section:
That an offence has been committed;
That the accused knew or had reason to believe the commission of such offence;
That with such knowledge or belief he----Caused any evidence of the commission of that offence to disappear,or
Gave any information respecting that offence which he then know or believe to be false;
That he did as aforesaid, with the intention of screening the offender from legal
punishment. The intention to screen the offender committing an offence must be the
primary and sole arm of the accused. The mere suspicion is not sufficient to bring home
the said offence. There must be cogent evidence to prove that the accused knew or had
information sufficient to lead him to believe that the offence had been committed and
that the accused caused the evidence to disappear in order to screen the offender known
or unknown.40
[D.1]The accused was neither knowing nor have the reason to believe that an offence
has been committed
39 Indian Penal Code ,1860 Chapter XI

40 Sukhram AIR 2007 SC 3050

28
In the case of V.L Tresa v State of Kerala 41 it was held that mere suspicion would not be
sufficient. There must be available on record cogent evidence that the accused has caused the
evidence to disappear in order to screen another known or unknown. The foremost necessity
being that the accused must have the knowledge or have reason to believe that such an offence
has been committed..Similar view was held in the case of Podda Narayana v. State of Andhra
Pradesh42, State of Karnataka v Madesha and Ors 43 and Palvinder Kaur v. The State of
Punjab.44
In the instant case, they have not committed any offence, the accused neither have the
knowledge that the offence has been committed nor have the reason to believe that the offence
has been committed. So they cannot be held liable for the offence under section 201 of IPC.
[D.2] Confession is inadmissible
In the case of Indra Dalal Vs. State of Haryana it was held that confession which are made in
police custody is inadmissible in evidence.45 Similar view was held in the case of Salim Vs.
State of Kerala46.
In the present case, all the statements were given by the Shyam Sahu when he was in the police
custody. Sahu denied all the facts stated in FIR and his confession before the court clearly
indicates that whatever he said when he was in the police custody was in the influence of police
and hence it is inadmissible. And as there is neither any direct evidence nor the complete chain
41 Tresa V L AIR 2001 SC 953
42 1975 Cri LJ 1062(SC):AIR 1975 SC 1252 : (1975)
43 MANU/SC/7745/2007
44 MANU/SC/0038/1952
45 MANU/SC/0661/2015
46 MANU/KE/1324/2012

29
of circumstantial evidence which shows that the accused have committed the offence under
section 364,302 of IPC.As they have not committed the offences why would they make the
evidences to disappear.
So the counsel humbly submits that it is quite evident from the circumstances and evidences
produced before the court that there is only suspicion about the offences done by the accused,
there is no direct evidence which can prove the guilt of the accused beyond reasonable ground.
And as they have not disappeared the evidence they cannot be held guilty for the offence under
section 201 of IPC.
[E] THE ACCUSED CAN BE HELD LIABLE FOR KIDNAPPING OR
ABDUCTING IN ORDER TO MURDER.
Section 364 OF IPC47 defines -Kidnapping or abducting in order to murder :
Whoever kidnaps or abducts any person in order that such person may be murdered or may be
so disposed of as to be put in danger of being murdered, shall be punished with imprisonment
for life or rigorous imprisonment for a term which may extend to ten years, and shall also be
liable to fine.48
In the case of Philips Fadrick D Souja and Ravindra vs . The State of
Maharashtra and The Inspector of Police
49
, the Honble Court held
The purpose for committing the unlawful act of kidnapping must exist at
the time when the act of kidnapping or abduction takes place.
The Honble Supreme Court in the case of Gade Lakshmi Mangraju alias Ramesh v. State of
Andhra Pradesh
50
has laid down that one circumstance by itself may not unerringly point to
the guilt of the accused. To acquit the accused on that basis is not a safe method for appreciating
47 Indian Penal Code, Chapter XVI
48 Amar Mishra vs State Of Delhi, MANU/DE/3866/2011
49 MANU/MH/0842/2008
50 MANU/SC/0358/2001

30
a case based on circumstantial evidence. It is cumulative result of all the circumstances alleged
and proved, which matters. It is not open to cull out one circumstance from the rest for the
purpose of giving a different meaning to it.
In the case of Jamsing Hulya Barela vs. The State of Maharashtra
51
Held that when
offending weapons were not discovered, no eye witnesses are there and Other witnesses and
material on record are not enough to make appellant guilty - Prosecution has not able to make
out its case beyond reasonable doubts, then accused should get benefit of doubt.
Here in the instant case it was alleged that Trisha was being abducted in order to murder, but
mere allegation is not enough to prove the guilt of the accused. Even if we consider the
allegation, then too the car which was used as alleged, the bag in which the dead body was
stuffed and the weapon used for strangling Trisha was not recovered.
In the very recent case of Gaurav
vs . State
52
, it was held that the
prosecution is bound to prove the guilt beyond reasonable doubt. Mere

suspicion is not enough and no substitute for proof. Court's verdict must
rest not upon suspicion but legal grounds established by legal testimony to
base conviction.
In the case of Trimukh Maroti Kirkan v. State of Maharashtra53,it was
held that in case there is no eyewitness of the occurrence and the case of
the prosecution rests on circumstantial evidence. The normal principle in a
case based on circumstantial evidence is that the circumstances from
which an inference of guilt is sought to be drawn must be cogently and
firmly established and they should be incapable of explanation on any
51 MANU/MH/0444/2010
52 MANU/DE/3275/2013
53 MANU/SC/8543/2006

31
hypothesis other than that of the guilt of the accused and inconsistent with
their innocence54.
The same principles were reiterated in Sunil Clifford Daniel v. State of
Punjab55, Sampath Kumar v. Inspector of Police, Krishnagiri 56,Mohd.
Arif @ Ashfaq v. State (NCT of Delhi57
In the very recent case of Lechu Meah and Ors . vs . The State and Ors
.
58
Reasonable doubt that must be created in our mind must be based on
the evidence on record itself and not on mere inferences, surmises,

speculations and conjectures. Once the guilt of the accused is established,
the mere fact that there is only a remote possibility in favour of the
accused is itself sufficient to establish the case beyond all reasonable
doubt."
In the case of Sita Raut vs. The State of Bihar and Bagar Raut
59
it was held, in order to prove
charge under Section 364 of IPC, prosecution had to prove that either force or deceit was
practiced on person abducted as otherwise a conviction under Section 364 of IPC, could not
stand - Force or fraud must have been practised upon person abducted.
In the instant case, no purpose existed because of which the three accused would kidnap Trisha
in order to murder her. Rekha was a very modern mother and as a human being had a very
practical approach towards life. Taking into consideration the evidences which have come up
54 C. Chenga reddy v. state of a.p., MANU/SC/0928/1996
55 MANU/SC/0740/2012
56 MANU/SC/0188/2012
57 MANU/SC/0919/2011
58 LEX/BDHC/0146/2013
59 MANU/BH/1172/1999

32
before the court, none of it stands and proves the guilt of the three accused beyond reasonable
doubt. Thereby not making them liable under the said offence.
[F]THE ACCUSED REKHA IS NOT LIABLE FOR CAUSING MISCARRIAGE
WITHOUT WOMANS CONSENT.
Section 313 of IPC60 defines Causing miscarriage without womans consent
Whoever commits the offence defined in the last preceding section without the consent of the
woman, whether the woman is quick with child or not, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.61
In the instant case, it has been alleged that Trisha had to abort her child due to Rekha's pressure.
According to Black's Law legal dictionary, the term allegation has been defined as a formal
claim against someone. It sparks an investigation that leads to someone being proven innocent
or found guilty. Decisions about what charge to lay are based on the evidence collected during
the investigation.
In the instant case, our client is being charged under Section 313, on the basis of a mere
allegation. No evidence has been gathered by the police in the specific regard.
The Supreme Court in the case of State of Madras v. Vaidyanatha Iyer 62 held "In any case, the
evidence is not enough to show that the explanation offered by the accused cannot reasonably
be true, and so the benefit of doubt must go to him".
In the case of Sonti Rambabu Ramu, S/o Nancharaiah vs. State of A.P.63 , the Honble Court
held that it is pertinent to note that in a matter of this nature, the medical evidence would play a
60 Indian Penal Code, Chapter XVI
61 Zakir Hossain Mallick vs Unknown, CRA No. 341 of 2004
62 AIR 1958 SC 61
63 MANU/AP/0865/2004

33
very crucial role and in the absence of corroborative medical evidence, just on the
uncorroborated testimony it would not be safe to convict under section 313 IPC. It is needless
to say that on the strength of the scant evidence, conviction for a serious offence under Section
313 IPC cannot be sustained.
The Supreme Court in the very recent case of Gagan Kanaujia and Anr. Vs. State of Punjab 64
held prosecution case is required to be covered by leading cogent, believable and credible
evidence.
In the case of State V. Pradeep
65
it was held that no conviction can be based on such
evidence. For convicting any person for the said offence, the degree of proof has to be that of a
high standard and not mere possibility of committing the said offence. In a criminal case, the
prosecution has to prove its case beyond reasonable doubt 66 against the accused. The
prosecution story does not inspire confidence and is not worthy of credence. The gaps in the
prosecution evidence, the several discrepancies make it highly improbable that such incidents
ever took place.
Here in the instant case, Police carried out the investigation wherein however no evidence is
found against our client absolutely that pregnancy of Trisha was terminated on Rekha's
instruction,there is no medical evidence as far as this aspect is concerned. Aversion or
opposition to relationship does not necessarily mean that Rekha pressurized Trisha for abortio
PRAYER FOR RELIEF
Wherefore in the lights of the issues raised, arguments advanced and authorities cited, the
council for the defendant most humbly and respectfully prays before this Hon'ble District
and Sessions Court Court may be pleased to adjudge and declare that:
64 MANU/SC/8726/2006
65 Sessions Case Number : 349 of 2013
66 State of Maharashtra through CBI vs. Ahmad Shah Khan @ Salim Durani and Anr.,

34
From the prima facie view, it can be said that all the three accused were
innocent and prosecution is not able to prove their guilt beyond reasonable
doubt.
The accused had not committed any offence rerding murder of Trisha Das.
They all should be acquitted with proper dignity and integrity of an individual.
The Court may also be pleased to pass any other order, which the court
may deem fit in light of justice equity and good conscience.
All of which is most humbly prayed.
Place:
DATE:
(On Behalf
of the Defendant)

35

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TEAM CODE: NOBILITY

IN THE DISTRICT AND SESSION COURT OF DELHI

REKHA DAS AND ORS.

MEMORIAL ON BEHALF OF DEFENDANT

MEMORIAL ON BEHALF OF DEFENDANT

MEMORIAL ON BEHALF OF DEFENDANT

All India Reporter

Supreme Court Cases

Supreme Court Journal

Bharat Law House, New Delhi.

House, New Delhi.

MEMORIAL ON BEHALF OF DEFENDANT

Oxford Advance learners dictionary, 8th edition, Oxford university

Concise Legal dictionary, Allahabad Law House,Faridabad,2004

Black's Law legal dictionary

The Indian Penal Code, 1860

The Criminal Procedure Code, 1973

The Indian Evidence Act, 1872

MEMORIAL ON BEHALF OF DEFENDANT

CASES CITED AND REFERRED

Haricharan Kurmi v. State Of Bihar, AIR 1964 SC 1184.

MEMORIAL ON BEHALF OF DEFENDANT

CHARGES I, II, III, IV & V

ACCUSED 1- REKHA DAS

ACCUSED 3- SUHAS KUMAR

ACCUSED 1, 2 AND 3 HAVE BEEN CHARGED WITH CRIMINAL

ISSUE 1- Whether Accused 1, 2 and 3 are liable for the

ISSUE 2- i) Whether Accused 1, 2 and 3 are liable for the

Whether Accused 1 is liable for the offence charged

under section 313 of the Indian Penal Code.

MEMORIAL ON BEHALF OF DEFENDANT

MEMORIAL ON BEHALF OF DEFENDANT

1. - Whether Accused 1, 2 and 3 are liable for the offences charged

2. (i)Whether Accused 1, 2 and 3 are liable for the offences charged

(ii) Whether Accused 1 is liable for the offence charged under

MEMORIAL ON BEHALF OF DEFENDANT

ISSUE 1: CHARGE I&II: THE ACCUSED ARE GUILTY OF

[A] ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY

Criminal Conspiracy as defined under Sec. 120A 1 consists of an agreement

Indian Penal Code, 1860

MEMORIAL ON BEHALF OF DEFENDANT

The elements of a Criminal Conspiracy are: Agreement between two or

[A.1] No Commission of An Illegal Act

State v. Navjot Sandhu, 2005 Cri LJ 3950(SC)

MEMORIAL ON BEHALF OF DEFENDANT

Section 276 states the admissibility of information received from an

[A.2] No Agreement or understanding between the accused

5 Chandubhai Abhesingbhai Chauhan vs State, CRIMINAL APPEAL NO.2238 of 2008

Indian Evidence Act, 1872

MEMORIAL ON BEHALF OF DEFENDANT

to do them, but in the forming of the scheme or agreement between the

For an offence under section 120-B9 the intention must proceed to an

In the instant matter, there was no intention to kidnap in order to commit

According to section 26 of the Evidence Act, Confession by accused while

(2000) 5 SCC 440

Indian Penal Code.

10 Vijay Kumar v. State, 2014(4) JCC 2494

MEMORIAL ON BEHALF OF DEFENDANT

[B] ACCUSED ARE NOT LIABLE FOR ACTS DONE BY SEVERAL

MEMORIAL ON BEHALF OF DEFENDANT

In the instant case, there exists no direct evidence so as to prove the

In the case of Sheoram Singh v. State of Uttar Pradesh15 the Supreme

CHARGE III : THE ACCUSED ARE GUILTY OF MURDER

MEMORIAL ON BEHALF OF DEFENDANT