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JURY TRIAL, BAR THE LEX FIESTA 2016

TEAM CODE: J5
BEFORE THE COURT OF SESSIONS
ZELHI
S.C. No. 11/2016
STATE OF ZELHI
(PROSECUTION)
Vs.
SHAWN MICHAELS
RIC FLAIR
& JOHN CENA
(DEFENCE)

FOR OFFENCES CHARGED UNDER


SECTIONS 302 r/w 34 & 120B of INDOMANIA PENAL CODE

Memorandum Humbly Submitted


MEMORANDUM SUBMITTED ON BEHALF OF DEFENCE
COUNSEL APPEARING ON BEHALF OF DEFENCE

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TABLE OF CONTENTS

List of Abbreviations..3
Index of Authorities4
Statement of Jurisdiction.7
Statement of Charges.8
Arguments Advanced.9-25
CHARGE 1
WHETHER JOHN CENA, SHAWN MICHAELS & RIC FLAIR ARE INVOLVED IN
CRIMINAL CONSPIRACY?

1.1. That there was no agreement between the accused.


1.2. Proof of Criminal Conspiracy not established
1.2.1. That the Accused No. 2 & 3 were not named in the dying declaration of the
deceased.
1.2.2. That the deceased was not in a fit state of mind to give dying declaration.
CHARGE 2
WHETHER JOHN CENA, SHAWN MICHAELS & RIC FLAIR ARE INVOLVED IN
MURDER?
2.1. That the prosecution failed in Proof Beyond Reasonable Doubt Tests.
2.2. Intention (Mens Rea) & Knowledge not established by the Prosecution on the Part of
Accused.

Prayer.26

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LIST OF ABBREVIATIONS

AIR
Bom
Cal.
Cr LJ
Cr.
Mah LJ
p.
Punj
SC
SCC
SCW

Paragraph
All India Reporter
Bombay High Court
Calcutta
Criminal Law Journal
Criminal
Maharashtra Law Journal
Page No.
Punjab High Court
Supreme Court
Supreme Court Cases
Supreme Court Weekly

INDEX OF AUTHORITIES
Books:
BRYAN A. GARNER, Blacks Law Dictionary, 7th Edition, West Group, USA (2002)
Dr. B.R. SHARMA, Forensic Science in Criminal Investigation & Trials, 5th Edition,
Universal Law Publishing Co. Ltd., (2014)
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HALSBURYS LAWS OF INDIA, Criminal Law-I, Volume 5(1), LexisNexis Butterworths
Wadhwa, New Delhi (2012)
JUSTICE V R KRISHNA IYER & Dr. JUSTICE AR LAKSHMANAN, Whartons Law
Lexicon, 15th Edition, Universal Law Publishing Co. Pvt. Ltd., (2009)
M.C. SARKAR, S.C. SARKAR & PRABHAS C. SARKAR, Sarkars Law of Evidence, 16th
Edition, Volume 1, Wadhwa and Company Nagpur, New Delhi (2008).
P. RAMANATHA AIYAR, The Major Law Lexicon, 4th Edition, Volume 1, LexisNexis
Butterworths Wadhwa Nagpur, Haryana (2010)
RATANLAL & DHIRAJLAL, The Law of Evidence, 23rd Edtion, LexisNexis Butterworths
Wadhwa Nagpur, Gurgaon (2012)
SURENDRA MALIK, SUMEET MALIK & SUDEEP MALIK, Supreme Court Yearly Digest,
2014, Eastern Book Company, New Delhi (2014)
SURENDRA MALIK & SUDEEP MALIK, Supreme Court on Penal Code, Volume 1,
Eastern Book Company, Lucknow (2012)

Lists of Cases

Devender Pal Singh Vs. State N.C.T. of Delhi, AIR 2002 SC 1661.
Firzouddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596
Firzouddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596.
Hira Lal Hari Lal Bhagwati Vs. CBI, (2003) 5 SCC 257

Hira Lal Hari Lal Bhagwati Vs. Central Bureau of Investigation, 2003 SCC (Cr) 1121.
Kiriti Pal Vs. State of West Bengal, 2015 (5) SCALE 319
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Mahabir Prasad Verma Vs. Dr. Surindra Kaur (1982) 2 SCC 258.
Nilesh Dinkar Paradkar Vs State Of Maharashtra, (2011) 4 SCC 143.
P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142.
State of Kerala Vs. P. Sugathan, (2000) 8 SCC 203
State of Kerala Vs. P. Sugathan, AIR 2000 SC 3323.
Subash @Dhillu Vs. State of Haryana, 2015 (2) SCALE 670
Union of India Vs. Prafulla Kumar Samal, AIR 1979 SC 366.
Vijay Kumar Arora Vs. State Govt. of NCT of Delhi, (2010) 2 SCC 353
Empress Vs. Rama Birappa, ILR (1878) 3 Bom 12, 17
State Of U.P. Vs. Madan Mohan And Others, AIR 1989 SC 1519.
State (Delhi Administration) Vs. Taxman Kumar, AIR 1986 SC 250.
Ram Manorath Vs. State of Uttar Pradesh, 1981 SCR (3) 195
Waikhom Yaima Singh Vs. State of Manipur, 2011 Cr LJ 2673.
P. Mani Vs. State of Tamil Nadu, AIR 2006 SC 1319.
State of Haryana Vs. Sher Singh, AIR 2009 SC 823.
Sharda v. State of Rajasthan, (2010) 2 SCC 85.
Shyamrao Vitthal Poemwar Vs. State of Maharashtra, 2001 Mah LJ 233.
Arwind Singh Vs. State of Bihar, AIR 2001 SC 2124.
Sudhir Shantilal Mehta Vs. Central Bureau of Investigation, (2009) 8 SCC 1

Jawahar Lal Vs. State of Madhya Pradesh, AIR 2001 SC 2209.


Mujeeb Vs. State of Kerala, 2000 SCC (Cr.) 78.
State of Madhya Pradesh Vs. Paltan Mallah, (2005) 3 SCC 169.
K.M. Nanawati Vs. State of Maharashtra, AIR 1962 SC 605.
Dahyabha Chhaganbhai Thakker Vs. State of Gujarat, AIR 1964 SC 1563.
Sudhdeo Jha Utpal Vs. State of Bihar, AIR 1957 SC 466.
State of Uttar Pradesh Vs. Satish, 2005 CriLJ 1428 (1433) (SC),
Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, AIR 1973 SC 2622,
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Ramesh Babulal Doshi Vs. State of Gujarat, 1996 SCC(Cr.) 972,
Jaswant Singh Vs. State of Haryana, 2000(3) SCALE 42,
State of Punjab Vs. Karnail Singh, 1997 SCC (Cr.) 749.
State of West Bengal Vs. Mohammed Khalid, (1995) 1 SCC 684.
S. Raghbir Singh Sandhawalia Vs. Commissioner of Income Tax, AIR 1958 Punj. 250
State of Maharashtra Vs. Mayer Hans George, AIR 1965 SC 1012.
Director of Enforcement Vs. M.C.T.M. Corporation Pvt. Ltd., AIR 1996 SC 1100.
K. Gopal Reddy vs State Of Andhra Pradesh, 1979 AIR 387.
Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 SCR (2) 573.
Sharad Birdhi Chnad Sarda Vs. State of Maharashtra, 1985 SCR (1) 88
Bhupinder Singh Vs. State of Punjab, 1988 SCR (3) 409
Narain Singh Vs. State of Haryana, AIR 2004 SC 1616
Maharashtra State Board of Secondary And Higher Secondary Education Vs. K.S.
Gandhi & Others, 1991 SCALE (1) 187.
State of Punjab Vs. Jagir Singh, 1974 SCR (1) 328.
Chandrappa & Others Vs. State of Karnataka,
Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116.

STATEMENT OF JURISDICTION
The Honble Court has jurisdiction to try the instant matter under Section 177 read with Section
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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.

STATEMENT OF CHARGES
CHARGE 1

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That John Cena, Ric Flair & Shawn Michaels have been charged for Murder under Section 302
of Indomainia Penal Code

CHARGE 2
That John Cena, Ric Flair & Shawn Michaels have been charged for Criminal Conspiracy under
Section 120B of Indomainia Penal Code
CHARGE 3
That John Cena, Ric Flair & Shawn Michaels have been charged for Common Intention under
Section 34 of Indomainia Penal Code

STATEMENT OF FACTS

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1.) Zelhi is one of the biggest states in terms of population and area as well as richest in
terms of Uranium resources in Indomania. Also it has the biggest nuclear power plant in
the world. In the year 2000, the state experienced violent riots in which the richest
industrialist, Mr. John Cena was alleged as the chief architect of these riots, although
there was no concrete evidence against him. Also, he has been alleged in many corrupt
practices because of which CBI has been on his tail. Mr. Cena is the co-partner with Kane
Lannister (brother of Jignesh Lannister) runs a company GRM, which deals with nuclear
products.
2.) Mr. Jignesh Lannister, who has been the CM of Zelhi for past 14 years, has been in a
mouth war with Mr. Cena especially after the 2000 riots, accusing the latter for killing
thousands of people and also been involved in many corruptive practices, due to which
Mr. Lannister often had heated arguments with his brother over his involvement with Mr.
Cena.
3.) On 30th December 2015 Mr. Jignesh scheduled a meeting to discuss trade related issues
with business representatives of Mr. Cena following which he had a breakfast with Mr.
Shawn Michaels and lunch with Mr. Ric flair. He then had a dinner with his family
including his wife Mrs. Sonia Lannister, his two sons and his brother.
4.) On 31st December the CM was feeling ill and taken to mayapuri hospital. He was
vomiting and was running high fever. He started to show symptoms of skin infection and
observed alarming hairloss
5.) By 4th January Dr Bharat Bhushan was invited who concluded that mr lannister was
exposed to huge amount of radiation. Dr Bhushan was sure that the deceased was
poisoned
6.) On 7th January Mr. lannister registered gained consciousness was informed of his
situation he called for a press conference. He blamed mr john cena for perpetrating the
crime but failed to speak more as he lost conscious
7.) On 7th and 8th January mr Jignesh lannister was confirmed to have been poisoned with
very lethal dose of polonium 210 to which there was no cure
8.) On 9th January Mr. Jignesh lannister succumbed to the illness. Dr Bhushan registered an
FIR and the statement made by Mr. Lannister
9.) The central government appointed the central bureau of Investigation. CBI found that Mr.
Michaels and Mr. flair had handled polonium during those days and through their secret
informant between the three in which words accomplish if not then remove the target
were heard. Traces of polonium have been found in the room of mr kane
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CBI arrested Mr. cena, Mr. Michaels and Mr. Flair for further questioning and produced
before a magistrate on 11th January whereby they were sent to policy custody for 8 days
and then they went under judicial custody
10.)
The chargesheet was filed by the CBI. The court commited this case to court of
session court of sessions franed charges against all accused
Mr. john Cena section 302 r/w 34 and 120B
Mr. Shawn Micheals - section 302 r/w 34 and 120B
Mr Ric Flair - section 302 r/w 34 and 120B

ARGUMENTS ADVANCED
CHARGE 1
WHETHER JOHN CENA, SHAWN MICHAELS & RIC FLAIR ARE GUILTY OF
CRIMINAL CONSPIRACY?

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It is submitted before the Honble Court that John Cena, Shawn Michaels & Ric Flair
(hereinafter referred to as accused) are not guilty of the offence mentioned under Section 120A
& 120B of the Indian Penal Code, 1860. In the matter at hand, it has been wrongfully alleged
that either of the above mentioned accused were involved in any type of criminal conspiracy.
Section 120A of the Indian Penal Code, defines criminal conspiracy as:
Definition of criminal conspiracy.When two or more persons agree to do, or cause to be
done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy: Provided that no agreement except an agreement to commit an offence shall amount
to a criminal conspiracy unless some act besides the agreement is done by one or more parties to
such agreement in pursuance thereof.
An agreement between two or persons to do an illegal act by illegal means is criminal
conspiracy.1 The essential ingredient of the offence of criminal conspiracy is the agreement to
commit an offence.2 To bring home the charge of conspiracy within the ambit of 120 B of the
Indian Penal Code, it is necessary to establish that there was an agreement between the parties
for doing an unlawful act.3 Like most crimes, conspiracy requires an act (actus reus), and an
accompanying mental state (mens rea).The agreement constitutes the act, and the intention to
achieve the unlawful objective of that agreement constitutes the required mental state. 4 The
evidence must show that there was a meeting of minds resulting in the ultimate decision taken by
the conspirators regarding the commission of an offence and where the factum of conspiracy is
sought to be inferred from the circumstances, the prosecution has to show that the circumstances
give rise to a conclusive or irresistible inference of an agreement between two or more persons to
1 SURENDRA MALIK & SUDEEP MALIK, Supreme Court on Penal Code, Volume 1, Eastern Book
Company, Lucknow (2012) p. 350.
2 Devender Pal Singh Vs. State N.C.T. of Delhi, AIR 2002 SC 1661.
3 Hira Lal Hari Lal Bhagwati Vs. Central Bureau of Investigation, 2003 SCC (Cr) 1121.
4 Firzouddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596.T
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commit an offence.5As in all other criminal offences, the prosecution has to discharge its onus of
proving the case against the accused beyond reasonable doubt.6 An offence of conspiracy may
not be deemed to have been established on mere suspicion and surmises or interferences which
are not supported by cogent evidence.7
It is contended before the Honble Court that from nowhere in the prosecution witnesses
statement nor in the investigation report or in FIR, it can be established that the accused were
having any guilty intention on the part of the accused.
1.1.

THAT THERE WAS NO AGREEMENT BETWEEN THE ACCUSED.

The ingredients of any criminal conspiracy include:


(a) An agreement between two or more persons.
(b) Agreement should be to do or cause to be done an illegal act or an act which itself may
not be illegal but by illegal means.
In the above mentioned ingredients, what is common is the word Agreement. To make out the
offence under Section 120-B of IPC, the prosecution must lead evidence to prove the existence
of some agreement between the accused persons. 8According to Blacks Law Dictionary9,
agreement means:
A mutual understanding between two or more persons about their relative rights and duties
regarding past or future performance.
Also in P. Ramanatha Aiyars The Major Law Lexicon10, agreement has been defined as:
5 HALSBURYS LAWS OF INDIA, Criminal Law-I, Volume 5(1), LexisNexis Butterworths
Wadhwa, New Delhi (2012) p. 247.
6 State of Kerala Vs. P. Sugathan, AIR 2000 SC 3323.
7 P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142.
8 Subash @Dhillu Vs. State of Haryana, 2015 (2) SCALE 670.
9 BRYAN A. GARNER, Blacks Law Dictionary, 7th Edition, West Group, USA (2002) p. 67
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A coming together of parties in opinion or final determination; the union of two or more minds
in a thing done or to be done; a mutual assent to do a thing.
It is also submitted before the Honble Court that according to the investigation report 11, there
was a conference call between the accused in which it was heard accomplish, if not then
remove the target.

It is submitted before the Court that a tape recorded conversation is

admissible provided:12

The conversation is relevant to the matters in issue.


There is identification of the voice
The accuracy of the tape recorded conversation is proved by eliminating the possibility of
tape recording.

It is contended before the Honble Court that in the instant case, the investigation report
conducted by Central Bureau of Investigation is silent whether the voice was recognized by any
competent witness and if in case it was recognized, then who actually recognized it. Also, the
Defence Witnesses in their statement refused to agree that they had any type of such conference
between them. As per the Statements:
(a) DW 2: Mr. Shawn Michaels: I deny the call recording which you are telling me about;
we never had a conference call in the past month or so.13
(b) DW 3: Mr. Ric Flair: I know nothing of the call record; Mr. Cena never said these
words.14
As in the words of the Apex Court:
10 P. RAMANATHA AIYAR, The Major Law Lexicon, 4th Edition, Volume 1, LexisNexis
Butterworths Wadhwa Nagpur, Haryana (2010) p. 262.
11 Annexure-6 (Report of Investigation Report) (iv)
12 Dr. B.R. SHARMA, Forensic Science in Criminal Investigation & Trials, 5th Edition, Universal
Law Publishing Co. Ltd., (2014) p. 1544
13 Statement of Witnesses, Page 16, 4.
14 Statement of Witnesses, Page 17, 3.
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Tape recorded conversation can only be relied upon as corroborative evidence of conversation
deposed by any of the parties to the conversation and in the absence of evidence of any such
conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied
upon. In the instant case, there was no evidence of any such conversation between the tenant and
the husband of the landlady; and in the absence of any such conversation, the tape-recorded
conversation could be no proper evidence.15
The evidence of voice identification is at best suspect, if not, wholly unreliable.16 Suspicion,
however, strong cannot be allowed to take place of proof and, therefore, the Court has to be
watchful and ensure that conjectures and suspicions do not take place of legal proof.17 The
agreement constitutes the act, and the intention to achieve the unlawful objective of that
agreement constitutes the required mental state.18 Also there must be a meeting of minds
resulting in ultimate decision taken by the conspirators regarding the commission of an offence.19
Where there is no evidence regarding the meeting of minds of the accused, the charge of
conspiracy will not be held to have been established.20

1.2.

PROOF OF CRIMINAL CONSPIRACY NOT ESATBLISHED.

It is submitted before the Honble Court, that prima facie it cannot be established anywhere that
the accused were involved in any criminal conspiracy. There should be a prima facie evidence
that a person was a party to the conspiracy before his acts can be used against the co15 Mahabir Prasad Verma Vs. Dr. Surindra Kaur, (1982) 2 SCC 258.
16 Nilesh Dinkar Paradkar Vs State Of Maharashtra, (2011) 4 SCC 143.
17 Vijay Kumar Arora Vs. State Govt. of NCT of Delhi, (2010) 2 SCC 353, Kiriti Pal Vs. State of West
Bengal, 2015 (5) SCALE 319.
18 Firzouddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596.T
19 State of Kerala Vs. P. Sugathan, (2000) 8 SCC 203.
20 Union of India Vs. Prafulla Kumar Samal, AIR 1979 SC 366.
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conspirators.21 To bring home the charge of conspiracy within the ambit of Section 120-B IPC, it
is necessary to establish that there was an agreement between the parties for doing an unlawful
act.22 The Evidence Act intends to make only those statements admissible which are the essential
compliment of acts done or refused to be done, so that the acts itself or the omission to act
requires a special significance as a ground for interference with respect to the issues in the case
under trial.23
As is written in Halsburys Laws of England, Volume IX, It is generally necessary also that
there should be a wrongful intention or blameworthy condition of the mind (mens rea) which can
be imputed to him in respect of such act or default24
It is submitted before the Honble Court that as per the First Information Report 25, it is stated that
Mr. Lannister had addressed to the media that it was Mr. Cena who along with his employees
had hatched a conspiracy to kill him, thus action was taken against the accused. Two things
have to be taken into consideration in Mr. Lannisters dying declaration:
(i)
(ii)

Mr. Shawn Michaels and Ric Flair were not mentioned in his dying declaration.
The deceased was not in fit condition.

1.2.1. ACCUSED NO.1 & ACCUSED NO. 2 WERE NOT MENTIONED IN DYING
DECLARATION.
It is submitted before the Honble Court that on 7 th January, 2016 while Mr. Lannister
was addressing the media, not even for once did the deceased mentioned the name of
Shawn Michaels (Accused No. 1) & Ric Flair (Accused No. 2), whereas in FIR it is
21 RATANLAL & DHIRAJLAL, The Law of Evidence, 23rd Edtion, LexisNexis Butterworths
Wadhwa Nagpur, Gurgaon (2012) p. 281.
22 Hira Lal Hari Lal Bhagwati Vs. CBI, (2003) 5 SCC 257.
23 Empress Vs. Rama Birappa, ILR (1878) 3 Bom 12, 17.
24 SUPRA 32, p. 10
25 Page 16, Jury Trial Problem
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stated that Accused No. 1 hatched a conspiracy with his employees to kill the deceased.
Also in the investigation report, it is stated that:
Mr. Lannister addressed the media on 7th January 2016 and stated that it was Mr. John
Cena who poisoned him through his employees, these were his last words and it in effect
his dying declaration.26
In one of the case, the Apex Court stated:
There is no mention about the participation of respondent Chander Mohan in the
incident in the dying declaration. The dying declaration discloses that only respondent
Madan Mohan caused knife injuries to deceased Satya Narain whereas deceased Ram
Shanker was attacked by Kamla Tiwari, Rama and two others who were never
prosecuted. Thus, respondent Chander Mohan and respondent Daya Shanker alias
Munna have not been assigned any role by Satya Narain in his dying declaration. There
is no mention about PW 1 and PW 2 having witnessed the occurrence even though the
names of other witnesses are mentioned in the dying declaration. The High Court was,
therefore, right in coming to the conclusion that the prosecution version regarding the
incident as stated by PW 1 and PW 2 materially differs from the version unfolded by the
dying declaration.27
The courts cannot allow an emotional and sentimental feeling to come into the judicial
pronouncements.28 A dying declaration which suffers from infirmity can not form the
basis of conviction.29Also, it is to be brought to the kind notice of the Honble Bench that
since both Accused No. 2 & 3 are not mentioned in the dying declaration, therefore the
charge of the criminal conspiracy will automatically drop against the Accused No.1 i.e.
John Cena as one of the essential ingredient of any conspiracy is that the conspiracy
should have been there between two or persons and since one person cannot conspire
with oneself, therefore charges on John Cena should stand null.
26 Annexure-6 (Report of Investigation Report)
27 State Of U.P. Vs. Madan Mohan And Others, AIR 1989 SC 1519.
28 State (Delhi Administration) Vs. Taxman Kumar, AIR 1986 SC 250.
29 Ram Manorath Vs. State of Uttar Pradesh, 1981 SCR (3) 195.
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1.2.2. THAT THE DECEASED WAS NOT IN A FIT OF MIND CONDITION


There can be no dispute that dying declaration can be sole basis for conviction, however,
such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful
and further that the maker thereof must be in a fit medical condition to make it. 30 The
conviction based on only dying declaration is not proper.31
Also, in one of the case, their lordships stated that:
Though there is substance in the plea of the learned Counsel for the appellant that there
was mention about the rash and negligent driving of the vehicle, but the evidence
adduced to link the accused to the alleged crime is scanty. There was no specific material
to show that the respondent was driving the vehicle at the time the accident took place.
Name of the respondent was not mentioned in the dying declaration. It was duly stated by
the victim that he can identify the driver. But he did not refer to the accused. Therefore,
we do not consider it to be a fit case where any interference is called for. The appeal fails
and the same is dismissed.32
Also it is contended before the Honble Court that it is nowhere mentioned in the
factsheet, or in FIR or in Investigation report that the Doctor (namely Dr. Bharat Bhushan
as PW 1) certified that while addressing the media, the deceased was fit to give such
speech. Infact as per the statement given by PW 1 under Section 161 Crpc:
Mr. Lannister then regained consciousness and I informed him of his condition and
explained to him what the future risks were and told him that the chances of him
surviving were not that great especially since we could not figure out the ion or element
with which was deteriorating his condition 33, showing such a bad condition of the
deceased.

30 Waikhom Yaima Singh Vs. State of Manipur, 2011 Cr LJ 2673.


31 P. Mani Vs. State of Tamil Nadu, AIR 2006 SC 1319.
32 State of Haryana Vs. Sher Singh, AIR 2009 SC 823.
33 Statement of Witnesses, Page 12-13, 4
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In

Paparambaka Rosamma Vs. State of Andhra Pradesh 34 , Bench of three Hon'ble

Judges of Supreme Court held that "when the doctor failed to certify that the injured was
in a fit state of mind at the time of recording the dying declaration, it would not be safe to
accept the dying declaration as true and genuine." In the said case certificate of the doctor
only stated that "patient is conscious while recording the statement." It was observed that,
"In medical science two stages namely conscious and a fit state of mind is distinct and
are not synonymous. One may be conscious but not necessarily in a fit state of mind."
It is contended before the Court that as per the analogy given by PW 1, the deceased was
ingested with about 6GBq Polonium (Po210) which is a very lethal dose.35 Also according
to the Forensic Report, the fatality rate in this quantity of Po 210 is about 99%.36 It clearly
shows that the deceased was not in a fit state condition. Also In K. Ramachandra Reddy
and another vs. The Public Prosecutor,37 the Apex court having noticed the evidence of
P.W.20 therein who conducted the post-mortem that there were as many as 48 injuries on
the person of the deceased out of which there were 28 incised wounds on the various
parts of the body including quite a few gaping incised injuries came to the conclusion that
in view of those serious injuries it was difficult to believe that the deceased would have
been in a fit state of mind to make a dying declaration.
As Supreme Court already stated that:
Though a dying declaration is entitled and is still recognised by law to be given greater
weightage but it has also to be kept in mind that the accused had no chance of crossexamination. Such a right of cross-examination is essential for eliciting the truth as an
obligation of oath. This is the reason, generally, the court insists that the dying
declaration should be such which inspires full confidence of the court of its
correctness.38

34 1999 (7) SCC 695.


35 Supra 23, page 13.
36 Annexure-4, page 11.
37 1976 SCR 542.
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The fact that the declarant was in a fit mental condition when the dying declaration was
recorded has to be proved by cogent and reliable evidence. In the absence of such
evidence, the courts would be justified in rejecting the dying declaration on this count
only.39 It can be explained through a fact:
The deceased alleged to have made declaration to her mother just before few minutes of
her death. She had named her in laws along with her husband who poured kerosene to
burn her alive. No medical certificate that deceased was in a fit state of mind at time of
making declaration. Uncorroborated testimony of mother to whom deceased made the
declaration is not worth acceptance.40

CHARGE 2
WHETHER JOHN CENA, SHAWN MICHAELS & RIC FLAIR ARE GUILTY OF
MURDER?
It is submitted before the Honble Court that the John Cena, Shawn Michaels & Ric Flair are not
guilty of the offence as per section 302 of Indian Penal Code, 1860. Section 302 defines
punishment of Murder which states:
Punishment for murder.whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
38 Sharda v. State of Rajasthan, (2010) 2 SCC 85.
39 Shyamrao Vitthal Poemwar Vs. State of Maharashtra, 2001 Mah LJ 233.
40 Arwind Singh Vs. State of Bihar, AIR 2001 SC 2124.
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Murder has been defined in section 300 of IPC which reads out:
Murder.Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or
(Secondly) If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or
(Thirdly) If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
(Fourthly) If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
It is contended before the Honble Court that the prosecution has failed to establish that there
was any intention on the part of the accused. Also they have not able to pass the proof beyond
reasonable doubt test.
1.1.

THAT THE PROSECUTION FAILED IN Proof Beyond Reasonable Doubt


TESTS.
Proof beyond reasonable doubt lies not in any analogy, but in the gravity and public
importance of the issues with which each is concerned. 41 A reasonable doubt is not an
imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common
sense.42A person has no doubt, a profound right not to be convicted of an offence which not
established by the evidential standard of proof beyond reasonable doubt.43
It is submitted before the Honble Court that the prosecution was not able to proof its case
beyond reasonable doubt.
To succeed on any issue the party bearing the legal burden of proof must:44

41 Sachindranath Chatterjee Vs. Smt. Nilima Chatterjee, AIR 1970 Cal 38.
42 Gangadhar Behera And Ors Vs. State Of Orissa,
43 State of U.P. Vs. Krishna Gopal, (1988) 4 SCC 302.
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(1) Satisfy a judge or jury of the likelihood of the truth of his case by adducing a greater
weight of evidence than his opponent, and
(2) Adduce evidence sufficient to satisfy them to the required standard or degree of proof.
Also, it is to be brought to the notice of the Honble Bench that on the following aspects the
prosecution was not able to proof its case:
(i)

There is a discrepancy between the dying declaration & investigation report as well as
in FIR, as in the dying declaration there was no mention about the Accused No. 2 & 3
but in the FIR & Investigation Report they have stated that the deceased named the
Accused No. 1 employees with whom he conspired. Such discrepancy creates a
situation of benefit of doubt. A criminal trial is not like a fairy tale wherein one in free
to give flight to one's imagination and phantasm. 45 If two reasonably probable and
evenly balanced views of the evidence are possible, one must necessarily concede the

(ii)

existence of a reasonable doubt.46


In the cases, of murder by administration of poison the Court must carefully scan the
evidence and determine the four important circumstances which alone can justify a
conviction:47
(a) There is a clear motive for an accused to administer poison to the deceased;
(b) That the deceased died of poison said to have been administered;
(c) That the accused had the poison in his possession; and
(d) That he had an opportunity to administer the poison to the deceased.
It is humbly submitted before the Honble Court that nowhere in the statement of the
Witnesses, it can be concluded that the accused had either the possession of the
poison or had the opportunity to administer the poison. This can be inferred from the
Statement of DW No. 3 Sheldon Kapoor who said:

44 Maharashtra State Board of Secondary And Higher Secondary Education Vs. K.S. Gandhi & Others,
1991 SCALE (1) 187.
45 State of Punjab Vs. Jagir Singh, 1974 SCR (1) 328.
46 Chandrappa & Others Vs. State of Karnataka,
47 Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116.
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I did not see any of the two mixing anything with the food that Mr. Lannister was
eating, infact they were eating quiet amicably.
Also, in the Investigation Report it is stated that trails of polonium was found in the
hotel room of the Accused No. 2 & 3 where they were staying.
Nobody will administer poison to another in the presence of others. The person who
administers poison to another in secrecy will not keep a portion of it for the
investigating officer to come and collect it. The person who commits
such murder would naturally take care to eliminate and destroy the evidence against
him.48
Also in the investigation report it is stated that:
The liquor ban was financially affecting Mr. Cena to a tune of a loss of 105 Crores
Profit per month due to Zelhi being his biggest established market. This was his
motive to remove the Chief Minister to earn profit.
Every voluntary act has a motive and the absence of any motive is generally a
circumstance in favor of the accused.49 As stated in one of the judgments of the
Supreme Court:
The Trial Court and the High Court having accepted this position, on the
hypothetical distinction of a supposed motive could not have adopted different
yardstick. When the so-called dying declaration was itself not proved, as noted above,
the question of acting on it did not arise.50
It is difficult to lay down a hard and fast rule as to how and in what manner a person
would react to achieve his motive could go to what extent in the commission of the
crime under a particular circumstance. Others may approach it with cool and calm
mind and think more dispassionately before taking any hazardous and serious steps.51
This can be inferred from the Statements given by the Accused Witnesses as follows:
DW 1: Mr. JOHN CENA
48 Bhupinder Singh Vs. State of Punjab, 1988 SCR (3) 409.
49 Ibid 10 p. 222.
50 Narain Singh Vs. State of Haryana, AIR 2004 SC 1616.
51 SARKAR, Volume 1, 17th Edition, 313.
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He has been a help and yes sometimes my business has had a setback but the law is
the law and being an ardent citizen I have been always a model citizen.
DW 2: Mr. RIC FLAIR
If you think I have anything to do with this, my answer is I am way too old and not
at all stupid to kill a CM that too on the same day when I have a scheduled meeting
with him. I have seen and faced many such feuds in my lifetime.
It stems out of the fundamental principle, of our criminal jurisprudence that the
accused is entitled to the benefit of any reasonable doubt. If two reasonably probable
and evenly balanced views of the evidence are possible, one must necessarily concede
the existence of a reasonable doubt.52 Section 105 is stated in two forms, that of a rule
as to the burden of proof and that of a presumption and that the burden of proving the
guilt of the accused always rests on the prosecution and never shifts.53 Suspicion,
however, great it maybe, cannot take the place of legal proof. A moral conviction
however, strong or genuine cannot amount to a legal conviction supportable in law.54
1.2.

INTENTION (MENS REA) & KNOWLEDGE NOT ESTABLISHED BY THE


PROSECUTION ON PART OF THE ACCUSED.
To constitute murder there must be malice aforethought, express or implied by law.55
Intention has been defined as the fixed direction of the mind to a particular object, or a
determination to act in a particular manner, and it is a distinguishable from motive that
which incites or stimulates action.56 Intention is the purpose or design with which an act is
done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge
and desire being the cause of the act, inasmuch as they fulfill themselves through the
operation of the will. An act is intentional if, and in so far as, it exists in idea before it exists

52 K. Gopal Reddy vs State Of Andhra Pradesh, 1979 AIR 387.


53 Vijayee Singh And Ors vs State Of Uttar Pradesh 1990 SCR (2) 573.
54 Sharad Birdhi Chnad Sarda Vs. State of Maharashtra, 1985 SCR (1) 88.
55 EARL OF HALSBURY, Halsburys Laws of England, 2nd Edition, Volume IX, Butterworth & Co.
(India) Ltd., (1933) p. 429.
56 S. Raghbir Singh Sandhwala VS. Commissioner of Income Tax, AIR 1958 Pun 250, 253.
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in fact, the idea realizing itself in the fact because of the desire by which it is accompanied.57
Intent and Knowledge postulate the existence of positive mental attitude and this mental
condition is the special mens rea which is necessary for the offence.58 The golden thread
which runs through the web of administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing to the guilt of the accused and
other to his innocence, the view which is favorable to the accused should be adopted.59
It is submitted before the Honble Court that neither from the facts of the case nor from the
Witnesses statement it can be concluded that the Accused had any sought of intention on their
part and moreover they havent committed any overt act for their intention. An actual intent
to commit the particular crime towards which the act moves is necessary element of an
attempt to commit a crime. Although the intent must be one in fact, not merely in law, and
may not be inferred from the overt act alone, it must be inferred from the circumstances.60 A
mans intention ought to be judged by his acts and not from what may be in his mind. It must
be ascertained by taking into consideration the entire transaction.61 As a general rule of our
law, a guilty mind is an essential ingredient of crime, and this rule ought to be borne in mind
in construing all penal statues.62 Mens Rea is one of the essential ingredients of criminal
liability.63 Mens Rea is a state of mind under criminal law which is considered as the guilty
57 P. RAMANATHA AIYAR, The Major Law Lexicon, 4th Edition, Volume 3, LexisNexis
Butterworths Wadhwa Nagpur, New Delhi (2010) p. 3474.
58 Anda Vs. State of Rajasthan, AIR 1966 SC 148; Jayaraj Vs. State of Tamil Nadu, AIR 1976 SC 1519.
59 State of Uttar Pradesh Vs. Satish, 2005 CriLJ 1428 (1433) (SC), Shivaji Sahabrao Bobade and
Another Vs. State of Maharashtra, AIR 1973 SC 2622, Ramesh Babulal Doshi Vs. State of Gujarat, 1996
SCC(Cr.) 972, Jaswant Singh Vs. State of Haryana, 2000(3) SCALE 42, State of Punjab Vs. Karnail
Singh, 1997 SCC (Cr.) 749.
60 State of West Bengal Vs. Mohammed Khalid, (1995) 1 SCC 684.
61 S. Raghbir Singh Sandhawalia Vs. Commissioner of Income Tax, AIR 1958 Punj. 250.
62 JUSTICE V R KRISHNA IYER & Dr. JUSTICE AR LAKSHMANAN, Whartons Law Lexicon,
15th Edition, Universal Law Publishing Co. Pvt. Ltd., (2009) p. 40.
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intention and unless it is found that the accused had the guilty intention to commit the crime
he cannot be held guilty of committing the crime.64
Also, if we look through circumstantial evidence, then also the prosecution is not able to
prove any event of chain through which it can be inferred that the accused were liable for any
such offence. Reason being:
The polonium disc was recovered from Mr. Kane Lannister room and not from any of the
accused room. Also, As Mr. Michaels (DW 2) & Mr. Flair ( DW 3) are the COO of Queen
Fisher Liquor Company & MD of Liquor Chains like Queen Fisher, Luborg, Minekin etc., it
cannot be concluded that they handle any such type of poison. Moreover according to, Mr.
Ryan Shah (DW 6) The Companies of Tesla acquire Cenas Nuclear Power Plant product
through a single authorized supplier which is Mr. Cena and Mr. Kane Lannister. It is to be
brought to the kind notice of the Honble bench that a disc was recovered from Mr.
Lannisters room which had some amount of Polonium. Also as has been stated in numerous
judgments by the Court that in the case of murder by poisoning, the accused should possess
some amount of poison, but in this particular case Mr. Cena was out of the country and also
there is no mention that he had some amount of poison with him.
In a case of circumstantial evidence, the chain of circumstances must be firmly established
and must have the tendency to unerringly point out to the guilt of the accused.65 Where any
link in the chain is missing, the guilt of the accused will not be established.66 Where the
evidence adduced by the prosecution will only throw some serious suspicion against the
accused, they may not be used as a substitute for evidence.67

63 State of Maharashtra Vs. Mayer Hans George, AIR 1965 SC 1012.


64 Director of Enforcement Vs. M.C.T.M. Corporation Pvt. Ltd., AIR 1996 SC 1100.
65 Jawahar Lal Vs. State of Madhya Pradesh, AIR 2001 SC 2209.
66 Mujeeb Vs. State of Kerala, 2000 SCC (Cr.) 78.
67 State of Madhya Pradesh Vs. Paltan Mallah, (2005) 3 SCC 169.
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It is a fundamental principle of criminal law that an accused is presumed innocent until
proved guilty and the burden is on the prosecution to prove all the essential ingredients of the
crime68, including mens rea, beyond all reasonable doubts.69 When there is a doubt on the
question, the benefit of doubt must be given to the accused.70 The absence or presence of
motive and evidence of preparation, opportunity, previous attempt are relevant, as they not
only go to show the mens rea of a crime, but may also furnish elements in establish its
commission.71
Moreover, as mentioned in the factsheet and the investigation report that there was a
conference call among the accused between 27th December to 30th December, 2015 and it was
heard, accomplish, if not then remove the target. Mere knowledge or discussion is not
sufficient to constitute the offence of criminal conspiracy.72 If deficiency in investigation or
prosecution is visible or can be perceived by lifting the veil which try to hide the realities or
covering the obvious deficiency, courts have to deal with the same with an iron hand
appropriately within the framework of law.73
Therefore, it can be inferred that there was no malice intention or any actus reus on the part
of the accused, therefore the charge of murder shown stand null.

PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Honble Court be pleased to:
68 K.M. Nanawati Vs. State of Maharashtra, AIR 1962 SC 605.
69 Dahyabha Chhaganbhai Thakker Vs. State of Gujarat, AIR 1964 SC 1563.
70 Sudhdeo Jha Utpal Vs. State of Bihar, AIR 1957 SC 466.
71 M.C. SARKAR, S.C. SARKAR & PRABHAS C. SARKAR, Sarkars Law of Evidence, 16th
Edition, Volume 1, Wadhwa and Company Nagpur, New Delhi (2008) p. 221.
72 Sudhir Shantilal Mehta Vs. Central Bureau of Investigation, (2009) 8 SCC 1.
73 SURENDRA MALIK, SUMEET MALIK & SUDEEP MALIK, Supreme Court Yearly Digest,
2014, Eastern Book Company, New Delhi (2014) p. 587.
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Acquit John Cena, Ric Flair & Shawn Michaels from the charge of criminal conspiracy
under section 120B of IPC.
Acquit John Cena, Ric Flair & Shawn Michaels from the charge of Murder under section
302 of IPC.
Acquit John Cena, Ric Flair & Shawn Michaels from the charge of Common Intention
under section 34 of IPC.
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: Zelhi
Date:

S/d_____________
COUNSEL FOR THE DEFENCE

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