COMMON INDUCTION MOOT, 2015 CAMPUS LAW CENTRE

BEFORE THE HONBLE SUPREME COURT OF INDIA, NEW

DELHI

Anil, Shyam Lal, Radhe Maa and Shaina.........................................................Appellants

v.

State...Defendent

SEPTEMBER 2015

MEMORANDUM FILED ON BEHALF OF APPELLANTS

COUNSEL APPEARING ON BEHALF OF APPELLANTS

1
 TABLE OF CONTENTS

Table of Contents.....2

Index of Authorities......3

Statement of Jurisdiction.......5

Statement of Facts.6

Issues Raised.7

Summary of Arguments8

Arguments Advanced.10

Prayer..20

2
 INDEX OF AUTHORITIES

Cases Referred:

State of Rajasthan v. Shravan Kumar & Anr

Kamla v. State of Punjab 1993) 1 SCC 1

Kishan Lal v. State of Rajasthan (2000) 1 SCC 310

State of Andhra Pradesh v. P. Khaja Hussain (2009) 15 SCC 120

Sharda v. State of Rajasthan (2010) 2 SCC 85

Sudhakar v. State of M.P (2012) 7 SCC 569

Pakalanarain Swamy v Emperor AIR 1939 PC 4

Lallu Manjhi v. State of Jharkhand (2003) 2 SCC 401

V.Bhagat v Mrs D. Bhagat 1994 AIR 710, 1994 SCC (1) 337

S. Hanumanta Rao v S. Ramani AIR 199 SC 1318

Shankar Prasad Shaw & Ors v State 1991 CriLJ 639

S. Reddy v. State of Andhra Pradesh 1996 SC (4) 596

Text Books Referred

Batuklal, Evidence Law

Avtar Singh, Evidence Law

Ratanlal & Dheerajlal, Evidence Law

PSA Pillai, Criminal Law

G D Gaur, Criminal Law

Statutory Authorities:

3
Indian Evidence Act, 1872

Indian Penal Code, 1860

Code of Criminal Procedure, 1973

Dowry Prohibition Act, 1961

Websites Referred:

www.indiankanoon.com

www.google.com

4
 STATEMENT OF JURISDICTION

The Appellants have filed an appeal to this Honble Court to review the judgment passed by

Honble High Court of Delhi New Delhi.

The Honble Supreme Court of India has the jurisdiction to hear the matter under Article 136(1)

of the Constitution of India 1950.

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.

5
 STATEMENT OF FACTS

1. Anil & Riya married on 15.09.2011 after 5 years of relationship.

2. Riya, with a degree in BA and LLB, was giving tuitions in their newly rented home in
Mukherjee Nagar.

3. On 15.07.2013 Riya was admitted in the government hospital with 44% burns. Hospital
records mentioned that Riyas friend Saumya admitted her on the same day.

4. Riya gave her first statement to Head Constable of police wherein she stated that she
accidentally got the burns due to burning candle and FIR was registered on its basis.

5. Same day a statement was recorded by Executive Magistrate, after getting fitness
certificate from doctor, which was similar to her first statement.

6. On 23.07.2013, a dying declaration was recorded by the Executive Magistrate, in the

presence of Riyas parents and brother, wherein she alleged that her husband Anil had set
her on fire.

7. Riya died on 14.08.2013 and FIR was altered into offence under section 302,498A IPC.

8. After the investigation police filed the charge sheet against Anil, his father Shyam Lal,
mother Radhe Maa and foster sister Shaina.

9. Trial Court acquitted all the accused on 08.05.2014.

10. State preferred Criminal Appeal No. 0056/14 before High Court of Delhi, New Delhi.

11. The High Court, on 17.10.2014, convicted the appellant mother, father and sister under
section 498A IPC and section 4 Dowry Prohibition Act 1956.

12. The appellant Anil was convicted under section 302 and section 498A IPC and section 4
Dowry Prohibition Ac 1956, based on dying declaration, letter from Riya to Jamini,
Srinus deposition and Jaminis deposition.

13. Appellants and his family have preferred an Appeal before the Honble Supreme Court of
India against the decision of the Delhi High Court.

6
 ISSUES RAISED

1) Can the multiple dying declarations given by the deceased be relied upon to convict the
accused under section 302 of IPC?

2) Are the circumstantial evidences relevant to corroborate the dying declarations?

3) Whether the alleged conduct of the appellants falls under cruelty according to section
498A of IPC?

4) Whether all the four appellants were involved in the demanding of dowry under section 4
Dowry Prohibition Act 1961?

SUMMARY OF ARGUMENTS

7
1) Can the multiple dying declarations given by the deceased be relied upon to convict the
accused under section 302 of IPC?

Section 32(1) of Indian Evidence Act is a very relevant kind of evidence when the last
statement(s) of the deceased are the only basis of conviction.

But it is a well settled law now that in case of multiple dying declarations there can be
conviction on their sole basis only if there is consistency in all the dying declarations.
Presence of the kin of the deceased at the time of third dying declaration clearly renders it
tutored.
Such consistency and authenticity is purely lacking in this case which renders it unjustified
to rely on it to convict the accused.

2) Are the circumstantial evidences relevant to corroborate the dying declarations?

The circumstances in this case do not have proximate relation with the actual occurrence and
are not of the transaction which resulted in the death of the deceased.
The 7 month old letter written by Riya to Jamini does not fall under the ambit of the
statement made by a person as to any of the circumstances of the transaction which
resulted in her death, which is an essential ingredient of section 32(1) Indian Evidence
Act.
The hospital records showing admission of the deceased by Saumya and not by the neighbor
Srinu clearly indicates the non-reliability of the deposition of Srinu as a witness.

3) Whether the alleged conduct of the appellants falls under cruelty according to
section 498A of IPC?

In constituting 'cruelty' contemplated by Section 498A IPC the acts or conduct should be
either such that may cause
(a) Danger to life; limb or health or
(b) Cause 'grave' injury or
(c) Of such a degree that may drive a woman to commit suicide.

The alleged conduct of the appellants was not such as to constitute cruelty on their part as
none of the ingredients of this section is fulfilled.

Harassment of the woman constitutes

(a) with a view to coercing her or any person related to her to meet any unlawful
demand for any property
(b) or valuable security or is on account of failure by her or any person related to her to
meet such demand.

8
There is no concrete evidence of coercion to meet any unlawful demand for any property

by appellant Anil, his parents and his sister.

4) Whether all the four appellants were involved in the demanding of dowry?

According to Section 2 of Dowry prohibition Act 1961 dowry should be the property or valuable
security given or agreed to give in connection with the marriage.

But in this case neither there was any prior agreement nor any demand in relation with the
marriage (of Anil and Riya).

ARGEMENTS ADVANCED

1. That the multiple dying declarations given by the deceased cannot be

relied upon.

9
 Section 321

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is
relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or
who cannot be found, or who has become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense which, under the circumstances

of the case, appears to the Court unreasonable, are themselves relevant facts in the following

cases:

(1) When it relates to cause of death. When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in
his death, in cases in which the cause of that person's death comes into question. Such
statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

The first two dying declarations, one being to the Head Constable2 and second to the Executive
Magistrate3, were given by the deceased in a fit state (fitness certificate by doctor in second one)
and without the influence, tutoring or coloration.

And the fact that the deceased was a LLB graduate4 herself cannot be ignored, that she must
have been well aware of the fact that a single strong and clear statement of hers could lead to the
conviction of her killers.

Despite this she clarified, not once but twice, that she got the burns accidentally due to a burning
candle.

The third dying declaration was given in the presence of the Executive Magistrate5 after a time
gap of 8 days and that also after the arrival of her parents and brother

1 Indian Evidence Act, 1872

2 Statement of facts, page 5, Para 4, line 1

3 Statement of facts, page 5, Para 5, line 1

4 Statement of facts, page 5, Para 2, line 1

5 Statement of facts, page 5, Para 6, line 1

10
This clearly indicates the unreliability of the statements.

There is no assumption that can explain the difference between the statements and there is no
reasonable explanation for the difference.

In State of Rajasthan v. Shravan Kumar & Anr

The Honble Supreme Court held:

If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can
be relied upon without any corroboration but the statement should be consistent throughout.
However, if some inconsistencies are noticed between one dying declaration and the other, the
Court has to examine the nature of the inconsistencies, namely, whether they are material or not.

Smt. Kamla v. State of Punjab6, the Court held as follows:

A dying declaration should satisfy all the necessary tests and one such important test is that if
there is more than one dying declaration they should be consistent particularly in material
particulars.

In Kishan Lal v. State of Rajasthan7(, the Court held that reliance could not be placed on two
conflicting versions of dying declarations and inter se discrepancies in the depositions of the
witnesses given in support of the dying declarations.

State of Andhra Pradesh v. P. Khaja Hussain 8, in which the Court rejected the appeal filed
against the acquittal holding that it was not a case where the variation between the two dying
declarations was trivial in nature.
6 (1993) 1 SCC 1

7 (2000) 1 SCC 310

8 (2009) 15 SCC 120

11
Sharda v. State of Rajasthan9, the Court held:

The court has to be on guard that such statement of the deceased was not as a result of tutoring,
prompting or product of imagination. The court must be further satisfied that the deceased was in
a fit state of mind after a clear opportunity to observe and identify the assailants.

The Supreme Court of India has made it clear on several occasions that: The statement should be
consistent throughout if there were several opportunities of making a dying declaration. And the
statement should have been made at the earliest opportunity and was not the result of tutoring by
interested parties.

In Sudhakar v. State of M.P.10 a very apt test was provided to check the authenticity and
reliability of dying declarations.

The test of common prudence would be to first examine which of the dying declarations is
corroborated by other prosecution evidence. Further, the attendant circumstances, the condition
of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of
the statement made by the deceased at the relevant time, medical evidence, the voluntariness and
genuineness of the statement made by the deceased, physical and mental fitness of the deceased
and possibility of the deceased being tutored are some of the factors which would guide the
exercise of judicial discretion by the Court in such matters.

In this case the testimony of multiple dying declarations given by the deceased is unreliable due
to its contradictory nature straight away.

2. The circumstantial evidences are not relevant to be admitted to corroborate

the dying declaration.

9 (2010) 2 SCC 85

10 (2012) 7 SCC 569

12
The letter11 by Riya to her mother Jamini on 17.12.2012 was written 7 months before the actual
occurrence of the incident.

The ingredients of the letter do not indicate to the transaction of the circumstances which led to
her death. Riya mentioned in the latter part of the letter that her life was peaceful then after she
and her husband had shifted to another house.

So there was no question of any proximate relation between the materials of the letter and Riyas
burning and death.

In Pakalanarain Swamy v Emperor12 (1939) the Privy Council held that:

The "circumstances"13 (in Section 32(1) of Evidence Act) can only include the acts done when
and where the death was caused.

The circumstances must be circumstances of the transaction: general expressions indicating fear
or suspicion whether of a particular individual or otherwise and not directly related to the
occasion of the death will not be admissible. Circumstances must have some proximate relation
to the actual occurrence.

Also the neighbor Srinus testimony14 is purely questionable here as the hospital records clear
mention that is was Riyas friend Saumya who admitted her to the hospital on 15.07.2013.

In Lallu Manjhi v. State of Jharkhand15 Court held that:

11 Statement of Facts, page 5, Para 12, line 2

12 Air 1939 PC 47

13 Section 32(1) Indian Evidence Act, 1872

14 Statement of facts, page 5, Para 12, line 3

15 (2003) 2 SCC 401

13
In cases of neither wholly reliable nor wholly unreliable category of witnesses, the court has to
be cautious and see if the statement of such witness is corroborated, either by the other witnesses
or by other documentary or expert evidence.

Neighbor Srinuss testimony has been contradicted by documentary evidence of the hospital 16
records. Had he been the first one to arrive at the incident spot (and saw accused Anil there) he
would have been the one who would have taken the deceased to the hospital.

In Sudhakar v. State of M.P it was held that

The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain
of events that have been stated by the prosecution. When the prosecution relies upon the
testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy.
Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole
witness is in conflict with the other witnesses, it may not be safe to make such a statement as a
foundation of the conviction of the accused.

The evidence of Srinu as a witness is in pure conflict with the statements of the deceased and the
hospital records.

3. The alleged conduct of the appellants does not fall under the ambit of
cruelty under section 498A IPC

Section 498A IPC:

498A. Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being

the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years and shall also be liable
to fine. Explanation.For the purpose of this section, cruelty means

(a )any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or

16 Statement of facts, page 5, Para 3, line 2

14
(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such demand.

A bare perusal shows that the word 'cruelty'17 encompasses any of the following elements:-

(i) Any 'willful' conduct which is of such a nature as is likely to drive the woman to commit
suicide; or (ii) any 'willful' conduct which is likely to cause grave injury to the woman; or (iii)
any 'willful' act which is likely to cause danger to life, limb or health whether physical or mental
of the woman.

So far as criminality attached to word 'harassment' is concerned it is punishable in the following

circumstances:-

(a) Where the harassment of the woman is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or valuable security or (b) Where the
harassment is on account of failure by her or any persons related to her to meet such demand.

There is no concrete evidence to show that the appellants conduct comes under the ambit of
cruelty or harassment defined in the section.

1. The alleged taunts by Anils mother were not of such a nature as is likely to drive the woman
to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical).

2. There has not been any demand for dowry by the accused Anil, his father Shyam Lal and
mother Radhe Maa. Nothing of this sought had been mentioned neither in the letter of Riya to
Jamini nor in the statements given by Riya.

3. The alleged statement of Anil as mentioned by Riya in her letter to her mother Jamini is vague
and ambiguous.

4. The alleged cold behavior of Anil towards the deceased was part and parcel of the married life
and cannot be taken as cruelty or harassment.

17 Section 498A Indian Penal Code 1860

15
5. Riya herself mentioned in the letter that her life was peaceful then when Anil and she had
rented a new flat in Mukherjee Nagar.

6. The alleged statement of asking for TV, LED, etc. by Anils sister Shaina for Diwali does not
contemplate harassment for any unlawful demand for property or valuable security.

According to Lord Denning:-

"When the conduct consists of direct action by one against the other, it can then properly be said
to be aimed at the other, even though there is no desire to injure the other or to inflict misery on
him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one
gives vent to his or her own feelings, not intending to injure the other, but making the other the
object-the butt- at whose expense the emotion is relieved.

The behavior of Anil towards Riya was just a display of his temperament and venting his feelings
and not the strained relations between the two as alleged by Riyas mother Jamini.

Thus, the deposition of Jamini18 cannot be relied upon to believe that the relations between Anil
and Riya were so devastated that he could go to the extent of burning her alive.

In V.Bhagat v Mrs D. Bhagat19 Supreme Court held that: "Mental cruelty" must be of such a
nature that the parties cannot reasonably be expected to live together.

In S.Hanumanta Rao v S. Ramani20 Supreme Court observed as under:-

Composite picture should be drawn as to the acts, incidents or conduct for ascertaining whether
these amount to cruelty-physical or mental. Unless such kinds of physical or mental ill-
treatments when taken together lead to the inference of persistent cruelty, charge of cruelty
cannot stick.

18 Statement of facts, page 5, Para 12, line 3

19 1994 AIR 710, 1994 SCC (1) 337

20 AIR 1999 SC 1318

16
The only test is that acts or conduct of guilty party should have the sting or effect of causing
grave injury to the woman or are likely to cause danger of life, limb or physical or mental health.
Further conduct that is likely to drive the woman to commit suicide is of much graver nature than
that causing grave injury or endangering life, limb or physical or mental health.

It involves series of systematic, persistent and willful acts perpetrated with a view to make the
life of the woman so burdensome or insupportable that she may be driven to commit suicide
because of having been fed up with marital life.

With the evidence on record, it is clear that:-

(i) There is no evidence of demand of dowry or subjecting Riya to cruelty for or in connection
with dowry other than general, vague and inconsistent statements and the highly contradictory
written letter of Riya.

(ii) Not a single neighbor has come forward to speak about subjecting Riya to cruelty by the
appellants in relation to demand of dowry.

(iii) The letter completely exonerates the husband Anil and father-in-law Shyam Lal and does
not exonerate mother-in-law Radhe Maa and sister-in-law Shaina.

(iv) There is no composite and persistent picture of cruelty by the appellants with the deceased
Riya in this case.

4. The appellants were not involved in demanding the dowry as according to

section 4 of Dowry Prohibition Act 1961.

Section 2 Dowry Prohibition Act:

Definition of dowry- In this act, `dowry means any property or valuable security given or
agreed to be given either directly or indirectly-

17
(a) By one party to a marriage to the other party to the marriage; or

(b) By the parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of said parties but
does not include dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.

Explanation II.-The expression `valuable security has the same meaning as in Sec. 30 of the
Indian Penal Code (45 of 1860)

4. Penalty for demanding dowry. - If any person demands directly or indirectly, from the parents
or other relatives or guardian of a bride or bridegroom as the case may be, any dowry, he shall
be punishable with imprisonment for a term which shall not be less than six months but which
may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of less than six months.

With the evidences provided it is clear that there was no demand for dowry by Anil, as his
statement was only that your father could not do just this much.

The statement is vague and does not convey Anils intention to directly or indirectly demand
dowry from Riya or her father.

The statement merely conveys a frustration period which is not uncommon in married lives.

There is no evidence to show that there has been any demand for dowry by the father and mother
of Anil. Mere alleged taunts by mother cannot be held as direct or indirect demands as under
section 4 Dowry Prohibition Act 1961.

The alleged demand by the sister of Anil does not fulfill the definition of dowry as contemplated
by section 2 Dowry Prohibition Act 1961.

There is no mention of any previous agreement between the marriage parties for dowry so as to
base the alleged statement by Anils sister.

18
In Shankar Prasad Shaw & Ors v State21 it was held that:

In the case in hand, neither party to the marriage nor their relations had ever given or agreed to
give any property or valuable security to the other party at or before or after the marriage, and,
therefore, the learned Counsel argues, Section 4 of the Act is not attracted to the case in hand.

The complaint petition does not disclose that the complainant had given any property or valuable
security or that he had agreed to give such things to the accused petitioner, either at or before or
after the marriage between or to his parents or other relations. Although in common parlance we
very often use the term "dowry demand" in the cases where the husband or his relations demand
valuable security from the parents and other relations of the wife after the marriage, yet, in my
opinion this will not amount to demand for dowry under the Act in view of the definition of
dowry contained in Section 2 of the Act22. Demand for dowry under the Act and in the legal
sense will mean the demand for dowry only when it refers to property or valuable security given
or agreed to be given at or before or after the marriage.

In the case of S. Reddy v. State of Andhra Pradesh23:

The Supreme Court has clearly said that Dowry as a quid pro quo for marriage is prohibited and
not the giving of traditional presents to bride or the bridegroom by friends and relatives. Thus
voluntary gifts given at or before or after the marriage as the case may be would not fall within
the ambit of dowry.

The alleged demand by Anil sister for LED, TV, etc. on the occasion of Diwali cannot be labeled
as a demand for dowry under Section 4 of Dowry Prohibition Act 1961.

A perusal of the evidences led by the prosecution goes to show that the allegations are quite
vague, unspecific and uncertain.

21 1991 CriLJ 639

22 Dowry Prohibition Act 1961

23 1996 SCC (4) 596

19
 PRAYER

In the light of the questions presented, arguments advanced and authorities cited the Counsel for
the Appellants most humbly and respectfully prays before the Honble Court, that it may be
pleased to hold, adjudge and declare that:

1. The present appeal is maintainable.

2. The death of the deceased was an accident.

3. The appellant Anil is not accused of the murder of the deceased, cruelty with the deceased and
demanding dowry and the appellants Shyam Lal, Radhe Maa and Shaina are not accused of
cruelty with the deceased and demanding of dowry.

20
 All of which is respectfully prayed

Place: New Delhi Counsel for Appellant

Date: 23-09-2015

21