BA.LLB.

MOOT COURT CLASSROOM EXERCISE, 2017

MEMORIAL ON BEHALF OF THE APPELLANT

TEAM CODE: 7A

1st BA.LLB. MOOT COURT CLASSROOM EXERCISE, 2017

Before
THE HONBLE SUPREME COURT OF INDIA

Special Leave Petition (Crl.) No. XXX / 2016

STATE (NCT OF DELHI).....APPELLANT

Versus.

TASHI & Ors. .....RESPONDENT

FOR OFFENCES CHARGED UNDER:

SECTION 302 READ ALONG WITH SECTION 34 AND SECTION

201 OF THE INDIAN PENAL CODE, 1860

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[MEMORIAL ON BEHALF OF THE APPELLANT]

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .......................................................................................................

TABLE OF AUTHORITIES..................................................................................................

BOOKS REFERRED: ......................................................................................................................

LEGISLATIONS:...................................................................................................................................
LEGAL DATABASES: ...................................................................................................................
CASES: ............................................................................................................................................
STATEMENT OF JURISDICTION .................................................................................................

STATEMENT OF FACTS .................................................................................................................

STATEMENT OF ISSUES ........................................................................................................

SUMMARY OF ARGUMENTS..12

I. WHETHER THE GIVEN APPEAL AGAINST THE HIGH COURT JUDGMENT IS

MAINTAINABLE..................................................................................................................
II. WHETHER THE HONBLE HIGH COURT HAS WRONGLY ACQUITTED THE
RESPONDENTS...........................................................................................................
III. WHETHER THE RESPONDENTS IN THIS GIVEN CASE MUST BE AWARDED
DEATH PENALTY...............................................................................................................

ARGUMENTS ADVANCED.................................................................................................14

I. THE GIVEN APPEAL AGAINST THE HIGH COURT JUDGMENT IS

MAINTAINABLE. ...14
A. THAT THE PRESENT PETITION IS MAINTAINABLE IN THIS COURT........................ 14
II. THE HONBLE HIGH COURT HAS WRONGLY ACQUITTED THE
RESPONDENTS. .18
A. THAT THE EVIDENCE ON RECORD IS SUFFICIENT TO PROVE THE OFFENCES OF
WHICH THE RESPONDENTS HAVE BEEN ALLEGED OF:................................................18
B. THAT THE CHAIN OF EVENTS IS COMPLETE TO CONVICT THE RESPONDENTS. .26
III. THE RESPONDENTS IN THE GIVEN CASE MUST BE AWARDED DEATH
PENALTY..............................................................................................................................

PRAYER................................................................................................................................34

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LIST OF ABBREVIATIONS

EXPANSION ABBREVIATION/SYMBOL

All India Reporter AIR

And &

Article Art.

Assistant Sub-Inspector A.S.I

Cr.P.C. Code of Criminal Procedure

Cri LJ/ Cr LJ Criminal Law Journal

Crl. Criminal

CrLJ Criminal Law Journal

High Court HC

Honble Honorable

I/O Investigating Officer

Indian Evidence Act Evidence

Indian Penal Code IPC

J. Justice

No. Number

Ors. Others

Paragraph /Para

Pg. Page

PW Prosecution witness

Section

Son of s/o

Special Leave Petition SLP

Station House Officer S.H.O

Supreme Court SC

Supreme Court Case SCC

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MEMORIAL ON BEHALF OF THE APPELLANT
The Constitution of India Constitution

TABLE OF AUTHORITIES

LEGISLATIONS:
I. The Constitution of India, 1950
II. Code of Criminal Procedure,1973
III.Indian Penal Code, 1860
IV.The Indian Evidence Act, 1872

BOOKS REFERRED:
I. An Analytical And Exhaustive Commentary On The IPC, 1860, by M.L.Singhal & Sabiha
II. Commentary on the Code of Criminal Procedure Act, 1973 by Ratanlal & Dhirajlal
III. Commentary on the Indian Evidence Act, 1872 by Ratanlal & Dhirajlal
IV. Commentary on the Indian Penal Code, 1860 by Ratanlal & Dhirajlal
V. Commentary on The Indian Penal Code, by K.D.Gaur
VI. Criminal Law by P S A Pillai
VII. Murder Trial by P. S. Verma
VIII. The Indian Penal Code by B.M. Gandhi

LEGAL DATABASES:
I. Manupatra
II. Westlaw

CASES:
1. State of Madras v. K.M. Rajagopalan, AIR 1955 SC 817
2. Mahendra Saree Emporium II v. G.V. Srinivasa Murthy 2005 1 SCC 481
3. Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874
4. Delhi Judicial Service Association v. State of Gujarat 1991 AIR 2176, 1991 SCR (3) 936
5. Esher Singh v. State of AP (2004) 11 SCC 585
6. Ashok Nagar Welfare Assn. V. R.K. Sharma 2002 1 SCC 749
7. CCE v. Standard Motor Products, AIR 1989 SC 1298
8. Chandra Bansi Singh v. State of Bihar AIR 1984 SC 1767
9. Ganga Kumar Srivastava v. State of Bihar, AIR 2005 SC 3123
10. Arunachalam v. P. S. R. Sadhanantham 1979 AIR 1284
11. Durga Shanker Mehta v. Raghuraj Singh, AIR 1954 SC 520
12. Pritam Singh v State, AIR 1950 SC 169
13. Mohd. Hussain Umar Kochra Etc v. K. S. Dalip Singhji & Anr, AIR 1970 SC 45
14. Indira Kaur & Ors. vs Sheo Lal Kapoor 1988 2 SCC 488
15. Mano Dutt & Anr. v. State of Uttar Pradesh 2012 4 SCC 79
16. Commissioner of Income Tax v. Patram Dass Raja Ram Beri, AIR 1982 P&H 1
17. State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
18. Chahat Khan v. State of Haryana, 1973 CriLJ 36 SC
19. Bhaskar Pandit v. State of Maharashtra, 1984 2 Bom CR 769
20. Raju v. State of Kerala, AIR 1994 Ker 179.
21. Naseem @ Bhatey v. State, 2000 CriLJ 3043 (All)
22. Son Lal v. State of Uttar Pradesh, AIR 1978 SC 1142;
23. Chhotka v. State of W.B., AIR 1958 Cal 482.
24. Shyamal Ghosh v. State of West Bengal, 2012 Cri.L.J. 3825 SC
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25. State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840;
26. V.C. Shukla and Ors. v. State (Delhi Administration), AIR 1980 SC 1382;
27. Bodh Raj @ Bodha and Ors. v. State of Jammu & Kashmir, AIR 2002 SC 31

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MEMORIAL ON BEHALF OF THE APPELLANT
28. Hanumant Govind Nargundkar vs. State of Madhya Pradesh,
AIR 1952 SC 343
29. Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr.,
2012 4 SCC 722.
30. Thakaji Hiraji v. Thakore Kubersing Chamansing 2001 6 SCC
145.
31. State of Rajasthan v. Smt. Kalki and another, 1981 2 SCC 752
32. Myladimmal Surendran and others v. State of Kerala, 2010 11
SCC 129
33. Takdir Samsuddin Sheikh v. State of Gujarat and another, 2011
10 SCC 158.
34. Palichera Nagaraju v. State of AP, AIR 2006 SC 3010
35. State of UP. v. Jagdeo, AIR 2003 SC 660
36. Alamgir v. State (NCT Delhi), AIR 2003 SC 282
37. Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, AIR
2004 SC 313
38. Manthuri Laxmi Narsaiah v State of Andhra Pradesh, 2011 14
SCC 117,
39. Harishchandra Ladaku Thange v. State of Maharashtra, AIR
2007 SC 2957.
40. Bhagat Ram v. State of Punjab AIR 1954 SC 621
41. Babulal Bhagwan Khandare and another vs. State of
Maharashtra, 2005 10 SCC 404.
42. Mustkeem v State of Rajasthan, AIR 2011SC 2769
43. Miller v Minister of Pensions, [1947] 2 All ER 372, [373].
44. Sanatan Naskar and Anr. v. State of West Bengal AIR, 2010 SC
3570.
45. Narendra Nath Khaware v Parasnath Khaware and ors, AIR 2003
SC 2325
46. Narendra Singh v State of Uttar Pradesh, AIR 1987 SC 1337
47. Krishnan and anr v. State of Kerela, AIR 1997 SC 383
48. Surja Ram v State of Rajasthan, AIR 1997 SC 18

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STATEMENT OF JURISDICTION

In accordance with Article 136 of the Constitution of India read with

Order XXII Rule 8 of the Supreme Court Rules, 2013, the Appellants
have approached the Honble Supreme Court of India.
Article 136 of the Constitution of India, 1950.

Article 136: (1) Notwithstanding anything in this chapter, the SC 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.

(2) Nothing in clause (1) shall apply to any judgment, determination,

sentence or order passed or made by any court or tribunal constituted
by or under any law relating to armed
forces

Order XXII Rule 8 of the Supreme Court Rules, 2013 provides that:
On the granting of the special leave, the petition for special leave
shall be treated as a petition of appeal and shall be registered and
numbered as such.

Thus, the Appellants have approached this Honble Court for

adjudicating the matter brought forth in the court of law.

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STATEMENT OF FACTS

BACKGROUND OF THE PARTIES

Lallan Prasad, aged 21 years s/o Sh. Chander Prasad, Sh. Ballan
Prasad (PW1) and Sh Mallan Prasad (PW2) were involved in a
property dispute case with their maternal uncle and his sons since
2003. The decision of the case was held in the favour of the
Prasad family in August 2015.
After the decision, their cousins were not happy about it and
developed inimicalrelations with the Prasad family.

CAUSE OF ACTION
On the night of 23rd /24th January 2016, one of the cousins of Mr.
Lallan Prasad named Jeysha and Jeyshas friend Tashi caught
Lallan Prasad in the market and started a brawl. In the meantime,
Jeyshas four brothers named Kishan, Bishaan, Disham and
Geysha also got involved in the fight after which Jeysha stabbed
Lallan in a lane where they had dragged Lallan. Lallans brother
Ballan was walking behind him.
Ballan shouted looking at the condition of his brother, all of them
fled away whereas Tashi was caught by the public and handed
over to the police.
Ballan admitted his brother at 3D Hospital in a critical condition
with multiple stab wounds on both arms, chest wall, scalp and

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right side of gluteal region and were perpetrated using a sharp
edged weapon as mentioned in the medical report .
Tashi, the accused who got arrested was also injured during the
whole fighting scene and the doctor in his medical report
mentioned three superficial injuries on his back after he was
taken to 3D Hospital for treatment.
A.S.I Harpal Singh along with constable Bijender rushed to the
3D Hospital for conducting the legal inquiry, the doctor (PW3)
stating the critical condition of the victim, Lallan and said that he
was unfit for giving the statement.
After all the investigation was done, A.S.I Harpal Singh and his
team gave the report to S.H.O, Thereafter an FIR was recorded
based on the statement.
On 24th January 2016, A.S.I Harpal Singh got telephonic
information from constable Dinesh that Lallan Prasad, s/o Sh.
Chander Prasad who was admitted in a very critical condition has
succumbed to his injuries in the ICU ward.

INVESTIGATION PROCESS
After obtaining the statement of Ballan (PW1) as the eye witness
of the case, A.S.I Harpal Singh went to investigate the crime spot
where they found blood strewn on the road.
On 30th January 2016 the police arrested the other co-accused
with the help of state police officers of Ambala but failed to
recover the murder weapon. After interrogating Jeysha, they
found that he had thrown the murder weapon, which was
admitted to be a
knife, in the river.

STATEMENT OF CHARGES
Initially, the Respondents/Accused were charged under 307/34
IPC after the investigation and Tashi had got arrested.
Subsequently the I.O changed the charges to 302/34 of IPC after
the Victim succumbed to his injuries.
After the admittance of dislocation of weapon by Jeysha, 201 of
IPC was added in
the present case and now the accused were charged under
302/201/34 of IPC.

DECISION BY THE COURTS

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That Trial Court sentenced all the convicted accused
persons to life imprisonment and they were asked to pay
compensation of Rs. 2,00,000/-(Rupees two lakhs only) to the
parents of Lallan immediately. Each of them was awarded
rigorous imprisonment for 2 years under 201 IPC. Both the
sentences were to run concurrently.
The accused persons appealed before the Honble High
Court seeking acquittal whereas the State filed an appeal
demanding death sentence for the heinous act and enhancing the
compensatory amount.
The High court adjudicated in the favour of the accused
by acquitting them from all the charges and dismissed the
appeal by the State reason being bereft of any substance and
rejected the testimony of Ballan considering it fabricated
statement of an interested party.
Hence, the present appeal stands before the Honble
Supreme Court of India by the state to award death sentence to
all the Respondents and also to enhance compensatory amount.

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 STATEMENT OF ISSUES

ISSUE 1: WHETHER THE APPEAL AGAINST THE HIGH

COURT JUDGMENT IS MAINTAINABLE?
A. That the present petition is maintainable.
B. That the Appellants have approached this Bench through a
Special Leave Petition under Article 136 of the Constitution
of India.

ISSUE 2: WHETHER THE HONBLE HIGH COURT HAS

WRONGLY ACQUITTED THE ACCUSED?
A. That the evidence on record is sufficient to prove the offences of
which the respondents have been alleged of under the
circumstances.
B. That the circumstantial evidence is sufficient for conviction.

ISSUE 3: WHETHER THE RESPONDENTS IN THIS GIVEN

CASE MUST BE AWARDED DEATH PENALTY?
 SUMMARY OF ARGUMENTS
I. WHETHER THE GIVEN APPEAL AGAINST THE
HIGH COURT JUDGMENT IS MAINTAINABLE.
It is humbly submitted in the Honble Supreme Court that the special
leave petition filed against the judgment of the high court is
maintainable under Article 136 of the Constitution of India. It is
contended that the jurisdiction of Supreme Court, under Article 136
can always be invoked when a question of law of general public
importance arises and in the present case, the issues involves a
substantial question of law that the high court [Hereinafter as HC] has
erred in acquitting the Respondents of all charges and not appreciated
all the evidence. Thus, the decision given by the Honble HC was not
proper and appropriate as the HC failed to give any proper and
special reasons for the order and moreover the conclusions of the HC
are manifestly perverse and unsupportable from the evidence on
record. Thus, the appellant has approached the SC for reconsidering
the issues and to ensure that a just decision is reached on.
II. WHETHER THE HONBLE HIGH COURT HAS
WRONGLY ACQUITTED THE RESPONDENTS.
The appellant humbly submits to this Honble court that the decision
given by HC must be set aside and the matter at hand must be re-
evaluated based on the established facts and circumstances. In the
instant matter, the Trial Court had convicted the Respondents of the
offences of murder and common intention of the Respondents was
established thereof, under 302 and 34 of the Indian Penal Code,
1860 respectively.
An appeal had been filed under the HC who turned the conviction
into acquittal. The HC has failed to appreciate all the facts put forth
by the Appellant. With the evidence presented at the trial stage, there
is sufficient and conclusive evidence to show that the Respondents
are indeed guilty of the aforementioned offences. This assertion is
twofold:
 Firstly, the conclusion arrived at by the HC have not considered all
the circumstances at hand (a); and Secondly, the evidence had to be
evaluated properly (b).
III. WHETHER THE RESPONDENTS IN THIS GIVEN
CASE MUST BE AWARDED DEATH PENALTY.
It is humbly submitted to this honble court that the Respondents
must be awarded death penalty for committing such a heinous crime
and moreover, the Respondents had tried to cover up their actions by
throwing the murder weapon into the river. Death Penalty acts as an
active deterrent for heinous crimes such as one committed by the
Respondents.

ARGUMENTS ADVANCED

I. THE GIVEN APPEAL AGAINST THE HIGH COURT

JUDGMENT IS MAINTAINABLE.

A. THAT THE PRESENT PETITION IS MAINTAINABLE IN

THIS COURT.
(1.) It is humbly submitted before this Honble Court that the
appeal made as per Article 136 of the Constitution is maintainable
under the appellate jurisdiction of SC. In this present matter the
Respondents were initially convicted by the trial court, which was
later over-ruled by the Honble HC where they were acquitted. The
present matter cannot be proceeded through any other recourse as
provided in the Criminal Procedure Code1 where 3722
emphasizes that no appeal lies if the same has not been provided
anywhere in the Criminal Procedure Code or any other
parliamentary act.
(2.) Moreover, the same issue cannot be presented through Article
134 of the Constitution. Article 134 dictates that the appellate
jurisdiction of SC to criminal matters shall lie from any judgment,
final order or sentence in a criminal proceeding of a HC in the
territory of India only if the HC has:

1
Code of Criminal Procedure, 1973 (Act No 2 of 1974).
2
Section 372, Code of Criminal Procedure 1973 (Act No 2 of 1974).
 I. Reversed an order of acquittal of an accused person and sentenced
him to death;
II. Withdrawn for trial before itself from any case of any court
subordinate to its authority and has in such trial convicted the
accused person and sentenced him to death;
III. Certifies under Article 134A that the case is a fit one for appeal to
the SC.
In the present matter, none of the conditions so provided has been
fulfilled. Therefore, the state cannot approach the apex court
through it, leaving Special Leave Petition as an only recourse to
obtain justice.
B. THAT THE APPELLANTS HAVE APPROACHED THIS
COURT THROUGH A SPECIAL LEAVE PETITION UNDER
ARTICLE 136 OF THE CONSTITUTION OF INDIA.
(3.) The Constitution provides the SC with a special power to
grant SLP to appeal against any judgment, decree or order in any
matter or cause passed or made by any court / tribunal in any
territory of India. The same can be exercised in two conditions:
1. SLP can be filed against any judgment, decree or order made by
any court / tribunal in the territory of India.
2. Or, SLP can be filed if the HC issues a certificate of fitness for
appeal to the Supreme Court.
In this present matter, the first condition to file an SLP is being
fulfilled. Thus, the appellant has filed the petition under it. In
ordinary circumstances, the Apex Court does not interfere with the
acquittal or conviction order of the HC or lower courts. But as has
been held in Satbir v. Surat Singh3 ordinarily this Court does not
interfere with an order of acquittal recorded by the High Court; but
if the High Court arrives at its findings over-looking important
facts and relying upon few circumstances which do not in any way
impair the probative value of the evidence adduced during trial,
this Court would be failing in its duty to do complete justice if it
does not interfere with such order of acquittal.

DISCRETIONARY POWER OF THE COURT

(4.) It is humbly submitted to this Honble Court that the present
appeal is maintainable. It is a settled fact that if the issue raised
before this Court is essentially one of considerable importance, it
3
[1997] 4 SCC 192.
 can be raised before the SC for the first time with its leave. 4 The
Honble Court cannot be deterred from exercising its jurisdiction
based on the Conclusiveness or finality given by a statute to any
decision of a Court or Tribunal.5 Furthermore, the entire intent and
purpose of SCs powers under this Article is that it is the duty of the
SC to see that injustice is not perpetrated or perpetuated by the
decisions of the Courts and Tribunals, because these decisions are
made by the respective statutes as conclusive and final. 6 The SC
under Art. 136 has wide power to interfere and correct the
Judgment and orders passed by any court or Tribunal in the country
in furtherance of justice and in cases where there is clear
manifestation of injustice then the Court may look into questions of
law and fact both.7 It is manifest that Art. 136 is of composite
structure, is power-cum procedure where power vests in the
jurisdiction of court and procedure spells a mode of hearing. 8 It is
further settled that the bar under Art. 136, is potential but not
compulsive in nature and is undoubtedly meant to advance the
cause of justice.9 The given Art. is the residuary power of the SC to
do justice where the Court is satisfied that there is injustice. These
are a class apart and are sui juris.10

(5.) The SC is not only a Court of law but is also the Court of
equity and must sub serve ultimately the cause of justice. 11 The
courts have this well-established practice to permit the invocation
of the power under article 136 only in very exceptional
circumstances12, as when a question of law of general public
importance arises or a decision shocks the conscience of the
Court.13

4
State of Madras v. K.M. Rajagopalan, AIR 1955 SC 817.
5
Mahendra Saree Emporium II v. G.V. Srinivasa Murthy, (2005) 1 SCC 481
6
Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874.
7
Delhi Judicial Service Association v. State of Gujarat, 1991 AIR 2176, 1991 SCR (3) 936.
8
Esher Singh v. State of AP (2004) 11 SCC 585 .
9
Ashok Nagar Welfare Assn. V. R.K. Sharma, (2002) 1 SCC 749.
10
CCE v. Standard Motor Products, AIR 1989 SC 1298.
11
Chandra Bansi Singh v. State of Bihar, AIR 1984 SC 1767.
12
Ganga Kumar Srivastava v. State of Bihar, AIR 2005 SC 3123.
13
Arunachalam v. P. S. R. Sadhanantham, 1979 AIR 1284.
 (6.) It is further submitted that in the case of Arunachalam v. P. S.
R. Sadhanantham14, SC even established the exceptional conditions
in which it would have granted special leave appeal which were:
Where grave and substantial injustice has been done by
disregard to the forms of legal process, or
Violation of the principles of natural justice or otherwise.

The exercise of the power of the SC is not circumscribed by any

limitation as to who may invoke it.15 Hence, it is clear from the
above-mentioned facts that the SC will not grant special leave to
appeal under Art. 136 of the Constitution unless it is shown that
special and exceptional circumstances exist, that substantial and
grave injustice has been done and the case in question presents
features of sufficient gravity to warrant a review of the decision
appealed against16. Further, in the exercise of its special leave
appellate jurisdiction, the Supreme Court will not interfere with the
concurrent findings of the Courts.
The Counsel moreover submits that the present case was dismissed
by the HC on the sole basis that the case was bereft of any
substance and that the testimony of one of the Prosecution witness
was deemed as a concocted statement of an interested party,
therefore, bringing the present matter in front of this Honble
Division Bench. It is submitted that in the case of Mohd. Hussain
Umar Kochra Etc v. K. S. Dalip Singhji & Anr17 held that the Court
would not be reassessing the evidence unless the findings are
perverse or are vitiated by any error of law or there is a grave
miscarriage of justice that no alternative is left before it. Thus, it
was held that:

If and when the Court is satisfied that great injustice has been
done it is not only the 'right' but also the 'duty' of this Court to
reverse the error and the injustice and to upset the finding
notwithstanding the fact that it has been affirmed thrice.18

14
Id.
15
Durga Shanker Mehta v. Raghuraj Singh, AIR 1954 SC 520.
16
Pritam Singh v State, AIR 1950 SC 169.
17
AIR 1970 SC 45, 1969 SCC (3) 429.
18
Indira Kaur And Ors. v. Sheo Lal Kapoor, (1988) 2 SCC 488, 499:AIR 1988 SC 1074.
 (7.) It is evident to mention here that, in the case of Mano Dutt &
Anr. v. State of Uttar Pradesh19 the Court had taken a consistent
view that the normal rule is that whenever the accused sustains
injury in the same occurrence in which the complainant suffered
the injury, the prosecution should explain the injury upon the
accused. But before the non-explanation of the injuries on the
person of the accused the Court has to be satisfied of the existence
of two conditions:
(i) That the injuries on the person of the accused were also of a serious
nature; and
(ii) That such injury must have been caused at the time of the
occurrence in question.20

(8.) Therefore, it is humbly submitted to this Honble Court that

the abrasions on the body of the prime accused, Mr. Tashi were
clearly in corroboration to the injuries sustained by the victim.
Thus, the given appeal must be heard in the court of law.

II. THE HONBLE HIGH COURT HAS WRONGLY

ACQUITTED THE RESPONDENTS.
(9.) The appellant humbly submits to this Honble court that the
decision given by HC must be set aside and the matter at hand must
be re-evaluated based on the established facts and circumstances. In
the instant matter, the Trial Court had convicted the Respondents of
the offences of murder and common intention that was established
thereof, under 302 and 34 of the Indian Penal Code, 186021
respectively.

(10.) An appeal had been filed under the HC who turned the
conviction into acquittal. It is humbly contended that the HC has
failed to appreciate all the facts put forth by the Appellant. With the
evidence presented at the trial stage, there is sufficient and
conclusive evidence to show that the Respondents are indeed guilty
of the aforementioned offences. This assertion is twofold:
Firstly, the conclusion arrived at by the HC have not considered all
the evidence on record is sufficient to prove the offences for the

19
(2012) 4 SCC 79
20
Id.
21
Indian Penal Code, 1860 (Act No 45 of 1860).
 respondents have been alleged of; and secondly, the chain of events
is complete to convict the respondents.

A.THAT THE EVIDENCE ON RECORD IS SUFFICIENT TO

PROVE THE OFFENCES OF WHICH THE RESPONDENTS
HAVE BEEN ALLEGED OF:

(11.) In the instant matter, the Trial Court had convicted the
Respondents of the offences of murder and common intention of
the accused was established thereof, under 302 and 34 of the
Indian Penal Code, 186022 respectively.
An appeal had been filed under the HC that turned the conviction
into acquittal. The HC has failed to appreciate all the facts put forth
by the Appellant. With the evidence presented at the trial stage,
there is sufficient and conclusive evidence to show that the
Respondents are indeed guilty of the aforementioned offences.

THAT MENS REA AND ACTUS REUS IS PRESENT

(12.) It is a fundamental principle of criminal law that a person
may not be convicted of a crime unless it is proved beyond a
reasonable doubt both: -

(a) That responsibility is attributed to the Respondents for a certain

behavior or the existence of a certain state of affairs, in
circumstances forbidden by criminal law and that the Respondents
has caused the prescribed event and
(b) That the Respondents had a defined state of mind in relation to
the behavior, existence of a state of affairs or causing of the event.23
To the effect that in every case the two elements of crime; actus
reus and mens rea have to be proved.
(13.) It is submitted that the offences of murder, which the
Respondents have been Respondents of, are laced with mens rea.
Mens Rea considered as guilty intention, 24 which is proved or
inferred from the acts of the Respondents 25. It is the sine qua non of
a criminal act. In the present matter, the Respondents had attacked
22
Id.
23
David Ormerod, Smith and Hogans Criminal Law, (13th edn, Oxford University Press 2011).
24
Commissioner of Income Tax v. Patram Dass Raja Ram Beri, AIR 1982 P&H 1.
25
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
 the victim due to the retribution of not getting the property. It is
based on: 1) Presence of Intention, and 2) Existence of Motive.

(14.) The intention to kill can be construed from the kind of

injury caused by him on the vital part of the body.26 In the present
matter, the Respondents had not only beaten up the victim but also
inflicted injury on him by sharp weapons clearly shows the intent
behind such an act. When the doer of an act knows that his act
would result in death of a person, he should be deemed to have
intent to cause death.27 The question, so far as the intention is
concerned, is not whether he intended to kill, or to inflict an injury
of a particular degree of seriousness but whether he intended to
inflict the injury in question; and once the existence of the injury is
proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion.28
(15.) It is humbly submitted to this Honble court that 8 of the
Indian Evidence Act, 1872 stipulates that any fact is considered as
relevant which shows or constitutes motive or preparation for any
fact in issue or relevant fact. It is further pertinent to note that if
there is motive in doing an act, and then the adequacy of that
motive is not in all cases necessary. In many instances heinous
offences have been committed for very trivial motive.29
The motive of Respondents to murder the victim was to avenge the
loss of property that they had been subjected to by the courts
decision against them. It is contended as evidence; motive is always
relevant. Motive may be relevant to proof, the prosecution may
prove the motive for a crime if it helps them to establish their case,
as a matter of circumstantial evidence. 30

(16.) The Basic Principle while dealing with evidence to prove a

design or plan states that whenever a persons design or plan to do
an act is in issue, it may be evidenced circumstantially based on
(a) By his conduct or utterances indicating the design or plan,

26
Chahat Khan v. State of Haryana, (1973) CriLJ 36 (SC); Bhaskar Pandit v. State of Maharashtra, 1984 (2) Bom
CR 769; Raju v. State of Kerala, AIR 1994 Ker 179.
27
R.A. Nelson, Indian Penal Code, 1009 (7th Ed Lexis Nexis Gurgaon, 1983)
28
Naseem @ Bhatey v. State, (2000) CriLJ 3043 (All)
29
Son Lal v. State of Uttar Pradesh, AIR 1978 SC 1142; Chhotka v. State of W.B., AIR 1958 Cal 482
30
Glanville Williams, Text Book of Criminal Law (2nd edn, Universal Law Publishing, 1999)
 (b) Or, by the prior or subsequent existence of the design or plan.31
The Principles of Judicial Proof32 is the study of science, which
determines whether one thing is a proof of another in investigation,
or not.33 It has further been explained that while establishing the
existence of a design or plan two ingredients must be
circumstantially explained. The first ingredient is to demonstrate
before the court to prove the presence of motive or active
deliberation by the Respondents. In this stage, the accused has duly
considered the consequence of his act i.e. both the good and the evil
and consciously choose or decide upon a particular course. The
second essential ingredient to be proved by the prosecution is
determination on part of the accused towards an action, which is
seen to lead to a desired end. Resolution on its psychical side is
equivalent to a complete process of volition. It can be construed
from all action, so far as this becomes complex, in the sense a
prolonged activity, or a series of combined movements.34
(17.) In the present matter the Respondents not only had a sharp
weapon in their possession and moreover, the respondents were
unhappy with the verdict of the court over the dispute. The
prosecution thus establishes that the Respondents had a pre-
determined motive to kill the victim therefore; conviction under
302 IPC is sustainable. Hence, it is submitted that two ingredients
are being explained by the circumstantial hypothesis put forth by
the Appellant.

THAT COMMON INTENTION CAN BE SEEN

(18.) Once criminal act and common intentions are proved, then
by 34 of the IPC, each person would be criminally liable as if
they have done the act individually.35 Under 34, every individual
offender is associated with the criminal act, which constitutes the
offence both physically as well as mentally.

31
John H. Wigmore, Rule of Evidence in Trials at Law, 32, . 266 Rule 59
32
John H, Wigmore, The Principles of Judicial Proof: As given by Logic, Psychology and General Experience and
Illustrated in Judicial Trials, 245 (Little Brown and Company, 1913);
33
George Gordon Battle, The Science of Judicial Proof by John Henry Wigmore, VA LAW REV Vol. 25, 120 (Nov.,
1938)
34
Ibid, 632; Sully & James, The Human Mind, (Lomgmans, 1892) Vol. II, 255
35
Shyamal Ghosh v. State of West Bengal, (2012) Cri.L.J. 3825 (SC)
 In the instant matter, the criminal act of Respondents was done in
pursuance of common intention & motive since they were all not
content with the manner in which the property dispute was settled.
Therefore, the Respondents are guilty of murder under 302 r/w
34 of the Indian Penal Code.
(19.) Whereas Actus reus is any wrongful act.36 Thus, in a case of
murder, actus reus would be the physical conduct of the
Respondents that causes death of the victim. In the instant case, the
actus reus is established by way of Circumstantial evidence &
Medical Examination.

THAT THE CIRCUMSTANTIAL EVIDENCE IS SUFFICIENT

FOR CONVICTION

(20.) As Jaffee has stated, Propositions can be both true and false
but they are not probable.37 In court or elsewhere, the provided
information cannot be 'speaking for itself'. It has to be interpreted in
the light of the competing propositions put forward and against a
background of knowledge and experience about the world. 38
Bearing in mind that it is not for the prosecution to meet any and
every hypothesis suggested by the Respondents, howsoever
extravagant and fanciful it might be, guilt can be proved by
circumstantial evidence after justification of incriminate facts and
circumstances.39
(21.) It is further submitted before this Honble Court that the
circumstantial evidence in the present matter shows that within all
human probability, the act must have been done by the
Respondents. The rules as laid down by Wills and reiterated by
many on Circumstantial Evidence are as follows: -
1. The circumstances alleged, as the basis of any legal
inference must be strictly and indubitably connected with
the factum probandum.

36
Leonard Jaffee, Of Probativity and Probability', 46, U. Pitt. L. Rev, 924, 934 (1985)
37
Leonard Jaffee, Of Probativity and Probability', 46, U. Pitt. L. Rev, 924, 934 (1985).
38
American Jurisprudence (2nd ed, 2011) Vol 29, para 322.
39
State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840; V.C. Shukla and Ors. v. State (Delhi Administration),
AIR 1980 SC 1382; Bodh Raj @ Bodha and Ors. v. State of Jammu & Kashmir, AIR 2002 SC 3164.
 2. The onus probandi is on the party who asserts the existence
of any fact, which infers legal accountability.40
(22.) Furthermore, in the case of in the famous case of Bodh Raj v.
State of Jammu & Kashmi41, Court held that circumstantial evidence
can be a sole basis for conviction provided the conditions are
satisfied that the:
1. The circumstances from which guilt is established must be
fully proved;
2. That all the facts must be consistent with the hypothesis of
the guilt of the accused;
3. That the circumstances must be of a conclusive nature and
tendency;
4. That the circumstances should, to a moral certainty, actually
exclude every hypothesis expect the one proposed to prove.
Also, in the case of Hanumant Govind Nargundkar vs. State of
Madhya Pradesh42, it is stated that:
It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion
of guilt is to be drawn should in the first instance be fully
established, and all the facts so established should be consistent
only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable ground for
a conclusion consistent with the innocence of the accused and it
must be such as to show that within all human probability the act
must have been done by the accused.
In the present matter, the circumstances of the case are proved
beyond reasonable doubt as all the testimony, incidents and facts
contribute to the guilt of the respondents.

THAT ALL FOUR TESTIMONIES ARE TO BE RELIED

UPON

40
JFB, William Wirt (1852-1891) 16 The American Law Register 705-713.
41
2002 Supp (2) SCR 67.
42
AIR 1952 SC 343.
 (23.) During the course of trial, three witnesses were examined
from the side of Prosecution. The HC then arrived at its conclusion
by neglecting the testimony of the PW1, deeming him to be an
interested witness thereby undermining the concrete evidence at
hand and wrongfully acquitting the Respondents. Furthermore, it is
a settled proposition of law of evidence that it is not the number of
witnesses that matters but it is the substance that matters. 43 134 of
the Indian Evidence Act44 provides that no particular number of
witnesses are required for proof of any fact. It is law that it is not
the number of witnesses but it is the quality of evidence which is
required to be taken note of for ascertaining the truth of the
allegations made against the accuse. Furthermore, material witness
who would unfold the genesis of the incident or an essential part of
the prosecution case, not convincingly brought to fore otherwise, or
where there is a gap or infirmity in the prosecution case which
could have been supplied or made good by examining a witness
who though available, is not examined.45 In this judgement, this
Honble Court criticised the HC for not examining witnesses
properly.

Hence, the testimonies of all the four witness provide a nexus and
establish a link between the happenings of the event.

THAT THE EYE WITNESS IS NOT AN INTERESTED

WITNESS
(24.) Black Law dictionary defines interested witness as a witness
who has a direct and private interest in the matter at issue. 46 They
must have some direct vested interest in having the accused somehow
convicted for some extraneous reason and a near relative of the
victim may not necessarily be an interested witness. 47 Evidence of a
witness, otherwise creditworthy and reliable cannot be brushed aside
solely on the ground that he is either partisan or interested or closely

43
Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr., (2012) 4 SCC 722.
44
Indian Evidence Act, 1872 (Act 1 of 1872).
45
Thakaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145.
46
Bryan A. Garner, Blacks Law Dictionary, (9th Ed., Thomson Reuters 2009).

47
State of Rajasthan v. Smt. Kalki and another, [(1981) 2 SCC 752]; Myladimmal Surendran and others v. State of
Kerala, [(2010) 11 SCC 129]; Takdir Samsuddin Sheikh v. State of Gujarat and another, [(2011) 10 SCC 158].
 related to the victim. 48 In the present matter PW1 i.e. the victims
brother had no personal interest in getting the Respondents punished
by the said act since, the trial court had already rendered the decision
in favor of the victims family even before the given issue at hand.
Eyewitness has to be the person who has reason to be present on the
scene of occurrence because they happen either to be friends or
family members. The law is long settled that for the mere reason that
an eyewitness can be said to be an interested witness, his or her
testimony cannot be rejected.49 It is further contended that the test of
creditworthiness or acceptability ought to be the guiding factor in
deciding a case. The evidence must inspire confidence and in the
event of unshaken credibility, there is no justifiable reason to reject
the same. 50Even if a witness is related to the victim there is no reason
to discard the evidence especially when it is reliable and
trustworthy.51 It is further submitted in arguendo, that the Court
cannot derail the entire case on the mere ground of absence of
independent witness as long as the evidence of the eyewitness,
though interested, is trustworthy.52

Therefore, it has been contended in the present matter that the HC has
erred in not considering the evidence of PW1 and considering it to be
concocted.

REPORT OF MEDICAL EXAMINATION

(25.) As per the medical report prepared by PW3 i.e. Dr. Kamini, the
injuries and their repercussions have been listed below:
Injury 2 which runs along the outside of the skull is the Superficial
Temporal Artery which in case gets cut results in profuse bleeding
and cause death.
Injury 3 has multiple abrasions present over the left chest which
indicates the direct intention of the Respondents to kill the victim
and is the trapezius muscle closer to the neck, since most fatal stab
48
Palichera Nagaraju v. State of AP, AIR 2006 SC3010: 2006 CrLJ 3899: 2006 (3) Crimes 253 (SC).
49
State of UP. v. Jagdeo, AIR 2003 Sc 660: (2003) 1 SCC 456: 2003 Cr.LJ 844: (2003) 3 Crimes 95.
50
Alamgir v. State (NCT Delhi), AIR 2003 SC 282: (2003) 1 SCC 21: 2003 CRLJ 456: JT 2002 (9) SC 347 :( 2003)|
Crimes 212.
51
Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, AIR 2004 SC 313: (2004) 1 SCC 184; 2004 SCC (Cri) 269
(272): 2004 CrLJ 280: (2003) 4 Crimes 471.
52
Sadhu Saran Singh v. State of Uttar Pradesh, (2016) 4 SCC 357
 wounds are located in the left chest region. Among a number of
explanations is that most people are right handed and, when facing a
victim, will tend to stab the left chest. In addition, if the intention is
to kill someone, one would stab in the left chest where the heart is
thought to be.
Injury 6 is an injury on left chest near the left nipple, with the blade
parallel to the ribs. If major thrust is applied, it will pass between the
3rd and 4th rib perforating the left lung and the Piercing of the heart
can result in instant unconsciousness and death in as little as 3
seconds. This is a risky target due to potential for the blade to bind
in the ribcage.
Injury 7 is the inside of the right armpit, with the blade parallel to the
ribs. This is a risky target due to potential for the blade to bind in the
ribcage as it passes between the 3rd and 4th rib perforating the right
lung.
Injury 8 is a thrust up and under the right side of the ribcage, done at
a 45 degree angle into the liver. Since the damage to the liver has
been severe, this can result in unconsciousness in as fast as as 1
minute and death in as fast as 5 minutes.
Injury 10 is a penetrating slash to the inside of the forearm between
the radius and ulna bones. Penetration of more than one inch will
sever a great deal of veins and result in rapid blood loss leading to
fatality.
Injury 13 is just behind the bottom of the ear. This is the only point
that an average person may be able to pierce the skull with a knife
and can result in instantaneous death
Injury 16 is a thrust to either kidney, and puncturing a
kidney can cause near instant unconsciousness and death within a
short span of time, as short as one minute. (TheKidneys are
connected to the body by the Suprarenal veins, which are rather
large, so even if the kidney is not punctured, a thrust here may still
sever one of these and result in rapid loss of consciousness.
Injury 3 and 4 is the subclavian artery located approximately 2.5
inches below the point shown, just behind the collar bone.
 Severing of the subclavian artery will result in unconsciousness in
as little as 2 seconds, and death in as little as 3.5 seconds.

THAT THERE EXISTS A NEXUS BETWEEN THE EVENTS

(26.) Evidence must be able to create an interconnection in
between them so as to prove the guilt of the accused beyond
reasonable doubt. The purpose of bringing the evidence is to invite
an inference as to a matter thought to be implied in the statement. 53
The motive of evidence is to establish the probability of the facts
upon which the success of a partys case depends in law. 54 It is
submitted that the testimony of PW1 as well as other witnesses play
a very pertinent role in implicating the Respondents. The testimony
aided by the circumstantial chain of events makes the role of the
Respondents in murdering the victim more probable.
The facts of the given case has already established that the public
had arrested the Respondent no. 1, Mr. Tashi under 43 of the Code
of Criminal Procedure code which clearly states that only in the
case that is related to a non-bailable and cognizable offence a
private person may arrest an offender.

B. THAT THE CHAIN OF EVENTS IS COMPLETE TO

CONVICT THE RESPONDENTS
(27.) Conviction is based on the circumstantial evidence. In such a
scenario, a complete chain of events has to be established pointing
out the culpability of the Respondents. The chain should be such
that no other conclusion, except the guilt of the Respondents, is
discernible without any doubt.55 The circumstances relied upon must
be established and the cumulative effect of the established facts
must lead to a singular hypothesis that the
Respondent is guilty.56 The guilt of the respondents can be deduced
only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the Respondents or the
guilt of any other person and further the circumstances from which
an inference as to the guilt of the Respondents is drawn have to be
53
Murphy and Glover, Murphy On Evidence, 252 (12th ed, Oxford University Press 2011).
54
Id.
55
Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, [2011] 14 SCC 117, (SC), [2].
56
State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SCW 640: AIR 1992 SC 840.
 proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances.57 In the case of Bhagat Ram v. State of Punjab58 it
was laid down that where the case depends upon the conclusion
drawn from circumstances the cumulative effect of the
circumstances must be such as to negative the innocence of the
Respondents and bring home the offences beyond any reasonable
doubt. In the present matter all the facts of the case indeed prove the
guilt of the Respondents and thus, the Honble court must
reconsider the decision taken by HC and hold the Respondents
liable.
(28.) It is humbly submitted by the Appellant, that the victim was
harmed by the Respondents as there were injury marks on
Respondent 1 i.e Tashi as well. The counsel contends that the non-
explanation of the injuries sustained by the Respondents at about
the time of occurrence or in the course of altercation is a very
important circumstance. 59 Furthermore, the presence of blood
strewn in the said crime scene is a clear indication of a fight. Thus,
corroborating the said statement of PW1. Moreover, there is a clear
corroboration of evidence since, the finding of the I/O i.e. PW4. As
to the disappearance of the murder weapon and the medical report
by PW3 i.e., Dr. Kamini as attached stated that a sharp object was
used to injure the victim. There must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the Respondents and must show
that in all human probability the act must have been done by the
Respondents.60 The aquittal of the Respondents in the present matter
has resulted in grave misscarriage of justice.

(29.) It is contended that according to above-mentioned

submissions, the required chain of events culminating in the
commission of offence is thoroughly established in bringing home
the proof of the guilt against all the Respondents. The Appellants
have accurately presented the chain of events, and hence this serves

57
Harishchandra Ladaku Thange v. State of Maharashtra, AIR 2007 SC 2957.
58
AIR 1954 SC 621.
59
Babulal Bhagwan Khandare and another v. State of Maharashtra, [(2005) 10 SCC 404].
60
Mustkeem v. State of Rajasthan, AIR 2011SC 2769, [2011] 11 SCC 724, [26].
 as an unquestionable foundation for the conviction of the
Respondents.
(30.) It is humbly submitted that the above chain of events, with
evidence proves that:
1. All the Respondents had an intention to cause harm to the
victims family because they had lost their property to the
victim and his family.
2. The Respondents have committed the murder of the victim
since the victims family had won the property dispute that
had ensued between the respondent and the victims families.
3. The Respondents had encountered the victim in the market
area. Furthermore, Tashi, Respondent no. 1 was caught in the
scene of crime where the police had even found blood spewed
near the scene.61
4. The collaboration of the finding of I/O i.e. PW4 and the
Medical Officer i.e. PW3 regarding a sharp weapon being
used on the victim and the event sequence as explained by
PW1 regarding the stabbing of the brother shows a clear
reason for commission of the crime.62
(31.) Halsburys Laws of England maintains that prosecution
should prove to full criminal standards any fact essential to
admissibility of evidence63. This principle is best explained in the
words of Lord Denning who in Miller v Minister of Pensions64
maintained that,
It need not reach certainty, but it must carry a high degree of
probability. Proof beyond reasonable doubt does not mean proof
beyond shadow of a doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course
of justice. The abovementioned arguments do prove that there lies
no doubt in all the charges framed against the Respondents. Thus,
they should be convicted.
(32.) It is humbly contended that in accordance with the
aforementioned submissions, a reference can be made to the case of

61
Id.
62
Id.
63
Halsburys Laws of England (5th edn, LexisNexis Butterworths 2010) 1374.
64
Miller v. Minister of Pensions, [1947] 2 All ER 372, [373].
 Sanatan Naskar and Anr. v. State of West Bengal, where the Court
held as follows: -
"There cannot be any dispute to the fact that it is a case of
circumstantial evidence as there was no eyewitness to the
occurrence. It is a settled principle of law that an accused can be
punished if he is found guilty even in cases of circumstantial
evidence provided, the prosecution is able to prove beyond
reasonable doubt complete chain of events and circumstances
which definitely points towards the involvement and guilt of the
suspect or accused, as the case may be. The accused will not be
entitled to acquittal merely because there is no eyewitness in the
case.65
(33.) It is humbly submitted by the Appellant the circumstances of
the present case have been proven beyond reasonable doubt,
thereon, completing the chain of events in order to suffice the
conviction of the Respondents. The Respondents is guilty despite
no recovery of weapon based on the circumstantial evidence and the
Respondents had willfully caused the disappearance of the weapon
to save themselves from the wrong that they had done. The
circumstances from which the conclusion of guilt has been drawn in
the first instance and is fully established, and all the facts so
established are consistent only with the hypothesis of the guilt of
the Respondents. A fortiori, the circumstances are of a conclusive
nature and tendency and have placed all the reasons exclude every
hypothesis but the guilty one proposed to be proved.

III. THE RESPONDENTS IN THE GIVEN CASE MUST

BE AWARDED DEATH PENALTY
(34.) It is contended to this Honble Court that the victim was
stabbed multiple times on various parts of his body, including his
gluteal region, arms and chest. As held in the medical reports by
PW3 and as per her deposition, the injuries were enough to cause
death. The post mortem report clearly indicates that the reason of
death of the victim was multiple stab wounds by a sharp object. It is
submitted that the prime accused and Respondent No 1, Mr. Tashi
was also brought to the same 3D Hospital with superficial wounds.
65
Id.
 It can be deduced that this would have resulted after a scuffle or a
brawl. It is also submitted that as per the
deposition of the Investigation officer (PW4), there was a lot of
blood strewn over the road.66 This corroborates the said statement of
PW1 as submitted earlier. It is also submitted to this Honble Court
that the alleged murder weapon was thrown into a river by Jeysha,
which was admitted by Mr. Jeysha during investigation. It is further
submitted that even though confession during police interrogation is
not admissible in a court of law as per 25 of Indian Evidence
Act67, the facts can be linked together to come to this conclusion.
The investigation officer reported that the alleged murder weapon is
missing or has been dislocated purposefully. As per PW3- Dr.
Kaminis deposition the victim died due to injuries by a sharp
weapon.68 In addition to this, it has been clearly stated by Mr. Jeysha
where he had admitted during investigation that he threw away the
weapon into river Ghaggar at Ambala69. It is submitted to this Court
that all the above mentioned facts when added together prove the
guilt of the Respondents. The incidence of blood being found on the
crime scene, the missing murder weapon, deposition of PW3 and
the admittance of facts by Mr. Jeysha indicate towards the guilt of
the Respondents.

(35.) It is further submitted to this Honble Court that Respondent

no. 1 Mr. Tashi was caught by the public and handed over to the
police.70 Though the investigation team could not corroborate the
happening of the event by way of another eyewitness from the
public, it is submitted that the incident was seen by PW1. In the
case of Narendra Nath Khaware v Parasnath Khaware and ors71, it
was seen:

Regarding the observation of the High Court that other witnesses

were not examined, the counsel submitted that at the time of actual
occurrence only the complainant and his son Diwakar Khaware
were present. The others came on the spot after the injuries had
66
Page 2, 4, Moot Problem.
67
Indian Evidence Act, 1872 (Act 1 of 1872).
68
Page 3, 7, Moot Problem.
69
Page 2, 6, Moot Problem.
70
Page 2, 3, Moot Problem.
71
AIR 2003 SC 2325.
 already been caused on the victim party. Diwakare Khaware having
died at the spot, complainant
was the only eye witness of the murder. The evidence of the
complainant is corroborated by the medical evidence as well as by
P.Ws., 2, 3 and 4.

We have been taken through the statement of the complainant -

P.W.1. The statement shows that at the time of the actual
occurrence only the complainant and deceased Diwakar Khaware
were present. Diwakar Khaware having died on the spot,
complainant was the only actual eye-witness.

The SC in this matter reversed the judgement of the HC stating that

the HC did not pay proper attention to the statement of the eye
witness. It held the judgement erroneous on the grounds that it did
not discharge its functions properly72.

Hence it must be noted that PW1 Mr. Ballan Prasad was the sole
eye witness to depose in this case. Hence his statements must be
relied upon and given due attention.

Also, it is submitted that in the case of Narendra Singh v State of

Uttar Pradesh73:

As regards the offence, the contention of the learned Counsel for

the appellant was that as the evidence of eye witnesses indicate,
especially the evidence of Phool Chand Sinha, P.W. 1, that he saw
when the deceased was being attacked by the assailant and on this
basis it was suggested that there might have been some hot
exchange, between the parties which might have raised the passion
and it might be in the heat of passion that the appellant inflicted
injuries. Dr. Harish Chand Pant who examined the injuries on the
person of the deceased found the following injuries:

1. Penetrating incised wound, 2 cm x 1 cm. x deep in the lung,

statutory, downwards and forward, 17 cm. below the right anterior
axillary fold.

72
Id.
73
AIR 1987 SC 1337.
 2. Penetrating incised wound, 2.5 cm x 1 cm. x deep in the heart
region, 1/2 cm. below the left nipple.

3. Penetrating incised wound, 2.5 cm. x 1 cm. x abdominal cavity

deep on the abdomen, right side, 1cm. above and towards right
from umbilicus .
4. Incised wound, 2.5 cm x 1 cm. x deep to the palm on the dorsum
of the left hand, 1 cm, above the base of middle Finger.

These injuries found by the Doctor clearly discloses that the

assailant went on giving blows after blows with his Kripan, a
sharp-edged weapon on part of the body where vital organs are
situated and ultimately the result is achieved i.e. the deceased is
dead. It is not a case where a blow was inflicted in the heat of
passion. In the circumstances like this where there are repeated
blows on the vital parts of the body, it could not be said that the
appellant committed an offence other than 302.

Hence it is submitted that, also in the present suit, the assailant(s)

gave repeated blows on the body of the Victim with a sharp edged
weapon as corroborated in the medical report. It is clearly visible
from the conduct of the respondents that they are guilty for murder
u/s 302 of Indian Penal Code74.

(36.) It is further submitted to this Honble Court that the guilt of the
Respondents is evident from the fact that the property suit was decided
in favour of the Victims family.75 Such property disputes have often
led to murders of family members, such as in the case of Krishnan and
anr v. State of Kerela,76 The appellants in this case were held guilty for
murder u/s 302 read with 34 of Indian Penal Code, after killing the
victim due to a property dispute.

(37.) The Respondents brewing animosity and anger towards the

Victims family is a clear indication of their involvement in this
heinous crime. According to the deposition of PW1, Mr Geysha
shouted Iska kaam khatam kardo, which when translated to

74
Indian Penal Code, 1860 (Act No 45 of 1860).
75
SUPRA note 70.
76
AIR 1997 SC 383.
 English means Finish him. This shows their clear intent of the
respondents to kill the victim.

(38.) According to the deposition of the Investigating Officer

(PW4), the prime accused-Mr Tashi, was arrested by the public in
the market and handed over to the police. As per 43 of Code of
Criminal Procedure, 1973, such an act is allowed for cognizable and
non-bailable offences. Murder being both cognizable and non-
bailable, such arrest by private persons is valid.
(39.) The guilt of the respondents can now be proved beyond
reasonable doubt based on the facts and depositions of the
witnesses. The statement of the respondents that they do not know
anything about the event is completely false and if relied upon, will
cause failure of justice to the victim and his family. It is submitted
to this Honble Court that as per the deposition of PW1 and PW4,
Respondent No 1- Tashi was caught by the public and handed over
to the police and the other respondents were later arrested by the the
I/O in cooperation with Ambala Police. Hence their statement that
they were falsely implicated must be disregarded.

(40.) It is humbly submitted to this Honble Court that the

Respondents must be awarded death penalty due to the nature of the
crime. The Respondents were part of the same family as the Victim
except Respondent No. 1-Mr. Tashi. The Respondents, under the
garb of familial relations, have tried to evade liability and
punishment in this matter. This is a sheer case of swaying this Court
according to the Respondents own convenience. It is further
submitted that in the case of Surja Ram v State of Rajasthan77, this
Honble Court held that while considering punishment to be given
to accused; Court should be alive not only to right of accused to be
awarded just and fair punishment, but also to rights of victims to
have assailant appropriately punished and society's reasonable
expectation from Court for appropriate deterrent punishment
conforming to gravity of offence.

(41.) In the present case, the Respondents must be awarded death

penalty to prove as a further deterrent to youth and aged alike. This
77
AIR 1997 SC 18.
 Honble Court must take into consideration the fact that the
provision for capital punishment has been under a very long drawn
debate between Human Rights Activists and the Indian Judiciary
and Legislature. The amendment or repealing of the statute has been
often proposed in various Parliamentary sessions, but it has never
been taken into consideration given the criminal state of affairs in
our country.

It is submitted to this Honble Court that awarding death penalty is

an active deterrent for heinous crimes such as one committed by the
Respondents.

PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced

and authorities cited, it is humbly prayed that the Honble Court may be
pleased to adjudge and declare that:

1. The impugned order of the High Court be set aside and the
Respondents in the given case be awarded death penalty.

2. The victims family be paid Rs 10,00,000/- (Rs. Ten Lakh only) as

compensation.

3. And any other relief that this Honble Supreme Court may deem fit
to grant in the interest of justice, equity and good conscience.

All of which is humbly prayed,

7A,
(Counsels for the Appellant)