MT-05

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY MOCK TRIAL

OPEN CHALLENGE COMPETITION- 2019-20

AUGUST-2019

IN THE COURT OF SESSIONS JUDGE OF ANDHA, MAHA

CC NO. 110 of 2018

In the matter of-

STATE OF MAHA

(PROSECUTION)

V.

MS. ANKITA & OTHERS

(DEFENCE)

FOR THE OFFENCES CHARGED UNDER

SEC 153 A & SEC 306 OF INDIAN PENAL CODE, 1860; SEC 84 B & 84 C OF INFORMATION
TECHNOLOGY ACT, 2000.

UPON THE SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

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 TABLE OF CONTENTS

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

INDEX OF AUTHORITIES ............................................................................................................ iii

STATEMENT OF JURISDICTION .................................................................................................... v

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

STATEMENT OF CHARGES .........................................................................................................vii

SUMMARY OF ARGUMENTS .................................................................................................... viii

ARGUMENTS ADVANCED ............................................................................................................ 1

1.THAT THE DEFENDANTS ARE NOT LIABLE UNDER SEC 306 OF IPC. .................... 1

1.1 DECEASED SHOULD HAVE COMMITTED SUICIDE. ................................... 1

1.2 THE ACCUSED UNDER THIS SECTION SHOULD HAVE ABETTED OR

INSTIGATED HIM/HER TO COMMIT SUCH AN ACT ............................................. 2

1.3 THE INVOLVEMENT SHOULD BE DIRECT IN NATURE ............................. 5

2. THAT THE DEFENDANTS ARE NOT LIABLE UNDER SEC- 153 A OF IPC. .............. 7

3. THAT THE ACCUSED ARE NOT LIABLE UNDER SEC- 84B & 84C OF IT ACT. .... 10

PRAYER...................................................................................................................................... ix

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LIST OF ABBREVIATIONS

& And.
AIR All India Reporter
All Allahabad High Court.
Bom LR Bombay Law Reporter.
Cal Calcutta High Court.
Cr LT Criminal Law Times.
CriLJ Criminal Law Journal.
Del LT Delhi Law Times.
DRJ Delhi Reported Journal.
DW Defence Witness.
Ed. Edition.
IPC Indian Penal Code, 1860.
IT ACT. Information Technology (Amendment) Act
2008.
M.P. Madhya Pradesh.
P&H Punjab and Haryana High Court.
Para (¶) Paragraph
Pg. No. Page Number.
PTC Patent & Trademark Cases.
PW Prosecution Witness.
QB Queen’s Bench.
SC Supreme Court.
SCC Supreme Court Cases.
SCR Supreme Court Reporter.
Sec (§) Section.

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INDEX OF AUTHORITIES

LIST OF CASES

1. Anandha Thandavam v. Udaya Sundaram, 1989 SCC OnLine Mad 2.

2. Aneeta Hada v. M/s. Godfather Travels and Tours (P) Ltd.,.2012 (5) SCC 661.
3. Avnish Bajaj v. State, (2008) 105 DRJ 721.
4. Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.
5. Balwant Singh v. State of Punjab, (1995) 3 SCC 214.
6. Cyriac s/o Devassai v. Sub- Inspector of Police, Kadathuruthy, 2006 All MR (Cri) 27.
7. Ganga Debi v. State (Delhi Administration), (1985) 28 Del LT 35.
8. Gangula Mohan Reddy vs. State of Andhra Pradesh, MANU/SC/0001/2010.
9. Gautam Raj Mehta v. State of Rajasthan, 1984 Cr LR (Raj) 646 (Raj).
10. Gurucharan Singh v. State of Punjab, 2017 (1) SCC 433.
11. Hari Singh v. State of Punjab, 1983 Cr LT 217 (P&H).
12. Jagganath Mondal v. State of West Bengal, 2013 CriLJ 1994 (Cal).
13. Joseph Kurien v. State of Kerala, (1994) Supp 4 SCR 122.
14. Karan Singh v. State of Punjab, (1994) SCC 569.
15. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
16. Kishori Lal v. State of M.P., AIR 2007 SC 2457.
17. M. Mohan v. State, 2011 (3) SCC 626.
18. My Space Inc. vs Super Cassettes Industries Ltd., 2016 SCC online Del 6382.
19. Narayan Vasudev Phadke, (1940) 42 Bom LR 861.
20. Neelam v. State of A.P., 2003 Cr LJ NOC 160 (AP).
21. Ramesh Kumar v. State of Chhattisgarh, 2001 (9) SCC 618.
22. S.S Cheena v. Vijay Kumar Mahajan, 2010 (12) SCC 190.
23. Sherras v. De Rutzen, (1895) 1 QB 918.
24. Shreya Singhal vs. Union of India, AIR 2015 SC 1523.
25. Shri Ram v. State of U.P., AIR 1975 SC 175.
26. State (Delhi Administration) v. Sri Kanth Shastri, 1987 CrLJ 1583.
27. State of Punjab v. Iqbal Singh, AIR 1991 SC 1532.
28. State of Uttar Pradesh v. Sarju Singh, 1996 Cr LJ 3833.
29. Surender v. State of Haryana, (2006) 12 SCC 375.

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30. Swamy Prahaladdas v. State of M.P. & Anr, 1995 SCC 438.
31. The Trustees of Safdar Hashmi Memorial Trust v. Govt. of NCT Delhi, 2001 Cr LJ
3689 (Del).
BOOKS REFERRED
1. Ratanlal & Dhirajlal, Indian Penal Code (35th ed. 2017).
2. 1 Batuk Lal, Commentary on The Indian Penal Code, 1860 (3rd ed. Thomson Reuters, 2016).
3. 1 S C Sarkar, The Code of Criminal Procedure, 1974 (10th ed., LexisNexis, 2013).
4. HWV Cox, Medical Jurisprudence and Toxicology (PC Dikshit eds., 7th ed., LexisNexis,
2002).
5. Karnika Seth, Computer Internet and New Technology Laws (Justice Altamas Kabir eds.,
2013).

WEBSITES:
1. http://www.westlawindia.com
2. http://www.heinonline.com
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com
STATUTES:

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973).

2. The Indian Evidence Act, 1872 (Act 18 of 1872).
3. The Indian Penal Code, 1860 (Act 45 of 1860).
4. The Information Technology Act, 2000 (Act 21 of 2000).
5. The Information Technology Amendment Act, 2008 (Act 10 of 2009).

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STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section
209 of the Code of Criminal Procedure, 1973.

Section 177-

177. Ordinary place of inquiry and trial-

Every 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 it-
When 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.

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STATEMENT OF FACTS

1. A reality show produced ‘Baazi-ghar’ where 10 contestants had to live in a house for 10
continuous weeks located at the State of Maha in the Union of Allogria. Housemates were
given task by the producer which was monitored through CCTV cameras placed inside the
house except restroom, changing area and smoking room. These tasks and interactions were
shown on television everyday form 8-8:30 pm and on every Friday eviction used to take place.
In every two weeks the producer used to throw a special party where liquor and gourmet food
was served to housemates but this party was not for telecast. The producer had also set up a
mental health consultation centre but the participants names were not revealed who took the
recourse.

2. Ms. Pooja was one of the contestants of the show who was very rich. She was very shrewd
and snobbish because of which she did not have many friends. In the show as well, she would
lose her temper very easily and would shout on other contestants. Because of this behaviour
she was also named the ‘most hated contestant’ on the show. She was even prescribed
Melatonin because of this by the psychiatrist of the show. Her roommate was Ms. Ankita. From
the very beginning they both disliked each other and had frequent fights.

3. On the 6th week of the show only 4 contestants were present i.e. Pooja, Ankita, Kartik and
Prithvi. On 6.08.2018, Pooja got up at 12 pm while she knew that she was assigned for cleaning
of the house. When she did not wake up Ankita as captain of the show and Kartik and Prithvi
had to do all the work on their own. When she woke up Ankita out of anger and rage shouted
on Ankita that “Pooja, you aren’t worthy of anything. You are just a lucky, rich, spoilt girl who
does not help with the tasks and doesn’t even deserve good people and might as well die.” As
Pooja was an addict to speedogram she used speedogram excessively. She posted on
speedogram that “Hahahaha, I am useless, (So?) I just die??” Within 4 hours at 6:00 pm she
got one hundred replies, and 75% replied with funny emojis that she should die, whereas the
rest replied in the negative.
4. On 7.8.2018, Pooja went to her room and she took melatonin along with alcohol inside the
restroom. When on 8.8.18, the door was opened by Kartik, Pooja was found dead on the
restroom floor. It was confirmed that she died on 8.8.2018 at 2: am. The 3 defendants were
charged under Sec-306 & 153A of IPC & Sec 85B & 84C OF IT Act. The police have filed the
chargesheet in the Sessions Court and the magistrate committed the case for trial.

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STATEMENT OF CHARGES

CHARGE-1

Whether the accused are liable for abetment to suicide under Sec- 306 of IPC?

CHARGE-2

Whether the accused are liable under Sec- 153 A of IPC?

CHARGE-3

Whether the accused are liable under Sec- 84 B & 84C of the IT Act, 2000?

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SUMMARY OF ARGUMENTS

1. THAT THE DEFENDANTS ARE NOT LAIBLE UNDER SEC- 306 of IPC.

It is humbly submitted before this hon’ble court that the defendants Ms. Ankita, Mr. Suman
Shekhar and Mr. Rohit Sippy are not liable under Sec- 306 of IPC because they did not possess
any mens rea for abetting the suicide that is committed by Ms. Pooja. To prove an abetment
for suicide 3 ingredients such as- deceased should have committed suicide; the accused under
this section should have abetted or instigated him/her to commit such an act; the alleged
involvement should be direct in nature. But in this present case the 3 ingredients together are
not being fulfilled.

2. THAT THE DEFENDANTS ARE NOT LIABLE UNDER SEC- 153A OF IPC.

It is humbly submitted before this hon’ble court that the defendants Ms. Ankita, Mr. Suman
Shekhar and Mr. Rohit Sippy are not liable under Sec- 153A of IPC. It’s because there is no
prima facie evidence or sign of any enimity or hatred that the 3 of them are creating through
their conduct.

3. THAT THE DEFENDANTS ARE NOT LIABLE UNDER SEC- 84B & 84C OF IT
ACT.

It is humbly submitted before this hon’ble court that the defendants Ms. Ankita, Ms. Suman
Shekhar and Mr. Rohit Sippy are not liable under Sec- 84B & 84C of IT Act. It’s because they
did not do any act to do any sort of abetment on any internet platform. Ms. Ankita does not
have any means of communication device, Mr. Suman Shekhar had just shown her speedopoll
on television and not on any internet source and Mr. Rohit Sippy was just the Regional head
of Speedogram. Speedogram is just an intermediatary and cannot be held liable under the IT
Act, 2000.

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 ARGUMENTS ADVANCED

1.THAT THE DEFENDANTS ARE NOT LIABLE UNDER SEC 306 OF

IPC.
It is humbly submitted before this hon’ble court that the accused Ms. Ankita, Mr. Suman
Shekhar & Mr. Rohit Sippy are not liable for abetment of the suicide that was committed by
the deceased Ms. Pooja on 8.08.2018. To disprove the charge of Sec-306 of IPC first the
reliance will be put on the definition of Sec-306 of IPC.

The definition of Sec 306 of IPC is ‘Abetment of suicide. — If any person commits suicide,
whoever abets the commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.’1

In the case of Jagganath Mondal v. State of West Bengal2, for the prosecution to prove the
section 306 of IPC, 3 ingredients have to be fulfilled-

(i) Deceased should have committed suicide;

(ii) The accused under this section should have abetted or instigated him/her to commit
such an act;
(iii) The alleged involvement should be direct in nature.

All these 3 ingredients have to be present together to make the accused liable. Even if one of
the ingredients cannot be fulfilled then the accused cannot be held liable. So, to disprove the
charge of Sec-306, the defense will disprove the ingredients of the section.

1.1 DECEASED SHOULD HAVE COMMITTED SUICIDE.

Yes, it is right that the deceased, Ms. Pooja has committed suicide. But here the defendants are
not liable for abetting her to commit suicide. But the defendants Ms. Pooja, Mr. Suman Shekhar
& Mr. Rohit Sippy did not commit the abetment of her suicide because they possessed no mens
rea. For commission of any crime mens rea is the most essential element.3 Under the Sec-306

1
Indian Penal Code, 1860, No.45, § 306.
2
Jagganath Mondal v. State of West Bengal, 2013 Cr LJ 1994 (Cal).
3
Sherras v. De Rutzen, (1895) 1 QB 918.

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also there has to be a clear mens rea to commit the offence of abetment.4 Therefore, the accused
cant be held liable for abetement of suicide of Ms. Pooja.

1.2 THE ACCUSED UNDER THIS SECTION SHOULD HAVE ABETTED

OR INSTIGATED HIM/HER TO COMMIT SUCH AN ACT

For the accused being liable under Sec-306 they should have abetted or instigated her to commit
the act. But in this particular case nothing of such instigation or abetment were provided to the
deceased by any of the defendants.

The legal definition of Abetment has been provided in the Sec-107 of IPC5 which says that-

Abetment of a thing- A person abets the doing of a thing, who-

(First) - Instigates any person to do that thing; or

(Secondly) - Engages with one or more other person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or

(Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing.

Any of the abovementioned acts is not committed by any of the defendants to make them liable
under abetment. Further, in the case of Gangula Mohan Reddy vs. State of Andhra Pradesh6 &
S.S Cheena v. Vijay Kumar Mahajan7, the apex court has held that- “Abetment involves a
mental process of instigating a person or intentionally aiding a person in doing of a thing.
Without a positive act on the part of the accused to instigate or aid in committing suicide,
conviction cannot be sustained. The intention of the Legislature and the ratio of the cases
decided by this Court is clear that in order to convict a person under Section 306 IPC there
has to be a clear mens rea to commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no option and this act must have been intended
to push the deceased into such a position that he committed suicide.”

Further, the offence of abetment depends upon the intention of the person who abets, and not
upon the act which is actually done by the person whom he abets.8 In this particular situation

4
Ratanlal & Dhirajlal, Indian Penal Code 725 (35th ed. 2017); Balwant Singh v. State of Punjab, (1995) 3 SCC
214.
5
IPC, supra note 1, § 107.
6
Gangula Mohan Reddy v. State of Andhra Pradesh, MANU/SC/0001/2010.
7
S.S Cheena v. Vijay Kumar Mahajan, 2010 (12) SCC 190.
8
Karan Singh v. State of Punjab, (1994) SCC 569.

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none of the defendants possessed the intention for the resultant act of the deceased. And due to
this lack of intention they are not in any way liable for abetment of suicide.

Further the meaning of ‘instigation’ as was held in the case of Ramesh Kumar v. State of
Chattisgarh9, is instigation may be inferred from a series of acts on the part of accused that
led to creation of such circumstances where the deceased had no other option left with him/her
than committing suicide. This series of acts may include use of force, words, conduct, wilful
omission or deeds or for that matter even silence of the accused in order to annoy or irritate
the deceased which resultantly caused the latter to take steps to put an end to one’s life. The
overt act has to necessarily coupled with a concomitant element called the mens rea to
encourage the deceased to commit suicide.

Even if there were some acts present on part of Ankita but not the other accused then also she
won’t be liable for the abetment of suicide because her actions were not coupled with an
intention or mens rea to cause such act. And the words that were spoken by Ankita was out of
sudden anger and irritation when Ms. Pooja got up very late and intentionally did not perform
her assigned task. And it is also held in case of State of Punjab v. Iqbal Singh10 and many other
cases that the words uttered in a fit of anger or omission without any intention cannot be termed
as instigation.11

Furthermore, the words spoken by Ms. Ankita “Pooja, you aren’t worthy of anything. You are
just a lucky, rich, spoilt girl who does not help with the tasks and doesn’t even deserve good
people and might as well die.”12 Does not amount to abetment because first, Ms. Ankita had
no intention of such and second, it was spoken in sudden fit of anger.
A similar case of such is Cyriac s/o Devassai v. Sub- Inspector of Police, Kadathuruthy13,
where accused merely told him in public that, “why are you remaining as a burden on earth,
why can’t you go and die?” and deceased committed suicide. The court held that, “ The act
of the accused though insulting and abusive would not itself constitute abetment suicide……It
is not what the deceased ‘felt’ but what the accused ‘intended’ by his act is more
important………In order to prove that the accused abetted commission of a suicide of a person,
the prosecution has to establish that-

9
Ramesh Kumar v. State of Chattisgarh, 2001 (9) SCC 618.
10
State of Punjab v. Iqbal Singh, AIR 1991 SC 1532.
11
Surender v. State of Haryana, (2006) 12 SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC 2457.
12
Mock Proposition, pg. 3, ¶ 13.
13
Cyriac s/o Devassai v. Sub- Inspector of Police, Kadathuruthy, 2006 All MR (Cri).

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(i) The accused kept on irritating or annoying the deceased by words, deed or wilful omission
or conduct which may even be wilful silence until the deceased reacted; or, that the accused
strongly advised or persuaded the deceased to do something; or pushed or forced the deceased
by deed, words, or wilful omission or conduct which may even be wilful silence to make the
deceased to move forward more quickly in forward direction.

(ii) That the accused had the intention to provoke, incite, urge or encourage the deceased to
commit suicide, while acting in manner stated above.

So, in this present case though Ms. Ankita did some act but she had no intention behind to
either provoke or urge or incite Ms.Pooja.

Above all in one particular case named Gautam Raj Mehta v. State of Rajasthan14, the words
“Tu Mera Rishtedar Hai. Tune Hamari Badnami Karwadi, Isse To Acha Hota Ki Tu Mar Jata”
allegedly spoken by the petitioner to the deceased cannot be held to be sufficient for instigating
the deceased for committing suicide. Similarly, in the case of Hari Singh v. State of Punjab15,
when a husband on sudden annoyance said to his wife that she should take poison if she liked
and die, it was not held to be instigation or abetment under Sec 306 of IPC.

In Swamy Prahaladdas v. State of M.P. & Anr16., the appellant was charged for an offence
under Section 306 I.P.C. on the ground that the appellant during the quarrel is said to have
remarked the deceased 'to go and die'. The Court was of the view that mere words uttered by
the accused to the deceased ‘to go and die’ were not even prima-facie enough to instigate the
deceased to commit suicide.

Furthermore, mere reprimanding does not amount to instigation.17 So, whatever Ms. Ankita
criticised Ms. Pooja was mere reprimanding and does not amount to instigation for committing
suicide.

Further it is also contended that Ms. Pooja was embarrassed and ashamed due to her act.

“As usually Pooja went on Speedo poll at 2:00 pm and typed, “Hahahaha, I am useless, (So?)
I just die??” Within 4 hours at 6:00 pm she got one hundred replies, and 75% replied with

14
Gautam Raj Mehta v. State of Rajasthan, 1984 Cr LR 646 (Raj).
15
Hari Singh v. State of Punjab, 1983 Cr LT 217 (P&H).
16
Swamy Prahaladdas v. State of M.P. & Anr, 1995 SCC 438.
17
Ganga Debi v. State (Delhi Administration), (1985) 28 Del LT 35.

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funny emojies that she should die, whereas the rest replied in the negative. All this was
broadcasted on TV on 7.8.2018 and it was quiet embarrassing for Pooja18.”

Here Ms. Pooja on her own wish posted the poll on speedogram. When 75% replied in positive
she became highly embarrassed. She was ashamed of her act because of which she was feeling
embarrassed. And in the evidences showing that the deceased was ashamed of her own faults
and committing suicide does not amount to abetment to suicide.19
Hence, it can be conveniently held that the defendants are not liable to either abet or instigate
the deceased for committing suicide.

1.3 THE INVOLVEMENT SHOULD BE DIRECT IN NATURE

For the fulfilment of the offence of abetment of suicide the prosecution has to prove that the
involvement of the accused in abetting the deceased was direct and there was a live link
between the two situations. But in present case that direct involvement or the live link was
missing.

On 6.8.2018 Pooja got up very late and missed the time to clean the house, therefore all the
responsibility fell on Ankita, Prithvi and Karthik. When Pooja got up at 12:00 PM, Ankita,
shouted at Pooja and said, “Pooja, you aren’t worthy of anything. You are just a lucky, rich,
spoilt girl who does not help with the tasks and doesn’t even deserve good people and might
as well die.” 20
These all happened at 11:00 am on 6.8.2018 while according to the FIR by the investigating
officer Ms. Pooja committed suicide at 2:00am on 8.08.201821. After nearly 38 hrs of the
argument between Ms. Pooja and Ms. Ankita, Ms. Pooja committed suicide. There were many
mitigating factors between these two incidents and lacked the direct involvement of Ms. Ankita
in the allegedly suicide committed by her. And it has been held by the Apex Court that there
should be some live link, or a proximate link between the act of the accused and the act of the
committing suicide. If the live link is missing, it cannot be said that the accused has instigated,
or intentionally aided the commission of suicide.22 The Apex Court also held that- “when direct

18
Mock Proposition, pg. 3, ¶ 18.
19
Ramesh Kumar v. State of Chattisgarh, 2001 Cr LJ 4724 (SC).
20
Mock Proposition, pg. 13, ¶ 17.
21
Id., pg. 7, Annexure 1.
22
M. Mohan v. State, 2011 (3) SCC 626.

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involvement is not established, accused cannot without a formal charge be guilty of abetment.
……. The roles of the perpetrator and abettor of the crime are different.”23

Further, even if the words of Ankita hurt Ms. Pooja but “An unintentional aiding is not an
abetment within the meaning of sec 107 of IPC………… Intentional aiding and active
complicity is the gist of offence of abetment.”24 Therefore, the words uttered by Ms. Ankita will
not amount to abetment or instigation at all.

When Ms. Pooja died before that Ms. Pooja and Ms. Ankita had no interaction. A person will
be said to aid the commission of offence of abetment either prior to or at the time of commission
of an Act, if he does something in order to facilitate the commission of that Act.25 In the present
case Ms. Ankita did not do anything to facilitate the commission of the suicide by Ms. Pooja.

It is also contended that Ms. Pooja took enough time i.e. 38 hrs between the argument and the
alleged suicide to think whether to commit suicide or not. The Apex Court held in the case of
Swamy Prahaladdas v. State of Madhya Pradesh26, that “utterances of words to ‘go and die’
does not reflect requisite mens rea on assumption that words would be carried out. ……
Deceased had plenty of time to weigh pros and cons of the act by which he ultimately ended
his life. …….. Suicide is not the direct results of words uttered.” And in the present case the
alleged suicide by Ms. Pooja is not the direct result of the words spoken by Ms. Ankita.

According to the testimony given by the psychiatrist Dr.Premlatha (PW4) Ms. Pooja was
getting depressed and for which she was prescribed the Melatonin by the psychiatrist.27 Not
only in the reality show before entering the reality show also Ms. Pooja used to take
Melatonin.28 Due to prolonged use of melatonin a person starts becoming depressed and
experiences frequent anxiety attacks. Further, Ms. Pooja used to behave very different, used to
get angry easily, get irritated on minor things, loose her temper very easily and would shout
often another house mates. She would always get hyper sensitive about every situation in which
other contestants would remain calm. If the victim committing suicide appears to be
hypersensitive to ordinary petulance, discord and differences in domestic life, quite common
to the society to which he or she belonged and such factors were not expected to induce a
similarly circumstanced individual to resort to such step, the accused charged with abetment

23
Joseph Kurien v. State of Kerala, (1994) Supp 4 SCR 122.
24
Anandha Thandavam v. Udaya Sundaram, 1989 SCC OnLine Mad 2.
25
State of Uttar Pradesh v. Sarju Singh, 1996 Cr LJ 3833.
26
Swamy Prahaladdas v. State of M.P., 1995 Supp (3) SCC 438.
27
Mock Proposition, pg. 13, Annexure 5.
28
Id., pg. 2, ¶ 9.

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could not be held guilty.29Therefore, due to the hypersensitivity of the deceased Ms. Pooja, Ms.
Ankita cannot be held liable for abetment of suicide.

Further other defendants Mr. Suman Shekhar and Mr. Rohit Sippy also have not committed
any act on their part to be held liable for direct involvement and the abetting the suicide of Ms.
Pooja. The poll on speedogram or the telecast of it on the television is also not sufficient to
held them liable for abetment because Ms. Pooja was the one who first put the poll in
speedegram without any influence and with her own will. Speedogram was just a platform for
the poll and as per the agreement like all her other speedogram posts Mr. Suman Shekhar also
telecasted this poll of her on television. Maybe due to the huge positive reply Ms. Pooja was
feeling embarrassed and later also felt ashamed about it. Whatever was done by Mr. Suman
Shekhar and Mr. Rohit Sippy was a regular task for them and they did not possess any intention
for abetting Ms. Pooja for committing suicide. “An unintentional aiding is not an abetment
within the meaning of sec 107 of IPC………… Intentional aiding and active complicity is the
gist of offence of abetment.”30

Therefore, as none of the elements of Sec-306 is being fulfilled, it is humbly submitted before
this hon’ble court that the defendants Ms. Ankita, Mr. Suman Shekhar and Mr. Rohit Sippy are
not liable under Sec-306 of IPC for abetment of suicide of Ms. Pooja.

2. THAT THE DEFENDANTS ARE NOT LIABLE UNDER SEC- 153 A OF

IPC.

It is humbly submitted before this hon’ble court that the defendants Ms. Ankita, Mr. Suman
Shekhar and Mr. Rohit Sippy are not liable for Promotion of enmity between different groups
on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial
to maintenance of harmony, under Sec – 153A of IPC.31

The Sec-153A of IPC says that –

153A. Promoting enmity between different groups on grounds of religion, race, place of
birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony-

(1) Whoever—

29
Gurucharan Singh v. State of Punjab, 2017 (1) SCC 433.
30
Anandha Thandavam v. Udaya Sundaram, 1989 SCC OnLine Mad 2.
31
IPC, supra note 1, § 153A.

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(a) by words, either spoken or written, or by signs or by visible representations or otherwise,

promotes or attempts to promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, language or regional groups or
castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different
religious, racial, language or regional groups or castes or communities, and which disturbs or
is likely to disturb the public tranquillity, or

(c) organizes any exercise, movement, drill or other similar activity intending that the
participants in such activity shall use or be trained to use criminal force or violence or knowing
it to be likely that the participants in such activity will use or be trained to use criminal force
or violence, or participates in such activity intending to use or be trained to use criminal force
or violence or knowing it to be likely that the participants in such activity will use or be trained
to use criminal force or violence, against any religious, racial, language or regional group or
caste or community and such activity for any reason whatsoever causes or is likely to cause
fear or alarm or a feeling of insecurity amongst members of such religious, racial, language
or regional group or caste or community,

shall be punished with imprisonment which may extend to three years, or with fine, or with
both. Offence committed in place of worship, etc.

To prove this particular section prosecution has to prove the 3 essential elements namely-

(1) that the accused wrote or spoke words or used signs or visible representation or employed
other means,

(2) that he did so to promote, or he attempted to do so thereby to promote, feelings of enmity

or hatred between two different classes of citizens of India, and

(3) that he did so maliciously,32

For making thee charge proved all these 3 ingredients have to satisfied together, if any one of
the ingredients is not being satisfied properly then the charge cannot be proved by the
prosecution and the defendants cannot be held liable.

32
1 Batuk Lal, Commentary on The Indian Penal Code, 1860 680 (3rd ed. Thomson Reuters, 2016).

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In the present case no acts in either writing or by speaking or by signs or by visual

representation has been done by any of the defendants, Ms. Ankita, Mr. Suman Shekhar and
Mr. Rohit Sippy to promote feelings of enmity between different classes of citizens of India.

Sec-153 A is not confined to the promotion of feelings of enmity, etc, on grounds of religion
only but takes in promotion of such feelings on other grounds as well as race, place of birth,
residence, caste or community.33 But in this present case neither of the defendants did anything
neither act nor words nor visual representation to promote any kind of enmity or hatred between
any group or community on basis of race, place of birth, residence or caste.

And other than the prosecution cannot bring any type of group and contend that the defendants
were creating enmity or hatred between those groups because “to bring any body of persons
within the description of a class of persons, the body must possess a certain degree of
importance numerically, and must be ascertained with certainty and distinguished from any
other class. Every group of persons cannot be designated as a class.”34

And further none of the defendants possessed any intention or mens rea in promoting any kind
of hatred or enmity between any community or group. “The gist of the offence is the intention
to promote feelings of enmity between different classes of people. The intention to cause
disorder or incite the people to violence is the sine qua non of the offence under Sec- 153A of
IPC and the prosecution has to prove the mens rea in order to succeed.”35

And also “The use of the expression ‘promotes or attempts to promote’ in Sec-153A of shows
that there has to be mens rea on the part of the accused to commit the offence of promoting
disharmony amongst different religions (groups) under Sec 153A.”36

Further, none of the defendants had any malicious intention for creating any king of enmity
between any group or community. Mr. Suman Shekhar was just producing a show which was
running successfully on television for a decade without any problem and having huge fan
following. He as the producer of the show has abided by all the guidelines necessary to prevent
any kind of disharmony in the society. The show did not telecast any objectionable matter
relating to Crime or violence, Sex, obscenity and nudity, Horror and occult, Drug tobacco
solvent & alcohol, Religion & community, Harm & offence. Therefore, the show was given

33
Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.
34
Narayan Vasudev Phadke, (1940) 42 Bom LR 861.
35
Balwant Singh v. State of Punjab, AIR 1995 SC 1785.
36
State (Delhi Administration) v. Sri Kanth Shastri, 1987 Cr LJ 1583.

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Category- ‘G’ ‘Generally Accessible ‘G’ according to the IBF’S Content Code &
Certification Rules, 2011.37 This category was given to the shows which could be telecasted
at all times which are suitable for unrestricted viewing by all viewers and/or under Parental
Guidance’ because of which the show was being telecasted at 8-8: 30 pm of television every
day. Further, the producer has also abided by the Rule-6 of Cable Television Network
(Regulation) Rules, 199438, which prescribes the Programme Code for the shows to be
telecasted on television.

Ms. Ankita was a struggling painter who had joined the reality show to try her luck to become
famous and Mr. Rohit Sippy was just the regional head of a social networking site Speedogram,
which provided a platform to people to share their views and personal experiences. None of
them prima facie had any intention either positively or maliciously to promote any kind of
hatred or enmity among any kind of group. “Absence of malicious intention is a relevant factor
to judge whether the offence is committed.”39

Therefore, it is humbly submitted before this hon’ble court that as none of the defendants have
neither by words spoken or written nor by any signs, gestures or visual representation tried to
create hatred or enmity between people of different religion, race, place of birth, residence
language, caste or community maliciously, they are not liable under Sec-153A of IPC.

3. THAT THE ACCUSED ARE NOT LIABLE UNDER SEC- 84B & 84C
OF IT ACT.
It is humbly submitted before this hon’ble court that the defendants Ms. Ankita, Mr. Suman
Shekhar and Mr. Rohit Sippy are not liable under Sec- 84B40 and 84C41 of IT Act.

The Sec-84B of IT Act says that-

84 B Punishment for abetment of offences-

“Whoever abets any offence shall, if the act abetted is committed in consequence of the
abetment, and no express provision is made by this Act for the punishment of such abetment,
be punished with the punishment provided for the offence under this Act.”

37
IBF’S Content Code & Certification Rules, 2011.
38
Cable Television Network (Regulation) Rules, 1994, Rule No. 6.
39
The Trustees of Safdar Hashmi Memorial Trust v. Govt. of NCT Delhi, 2001 Cr LJ 3689 (Del).
40
Information Technology (Amendment) Act, 2008, No. 10, § 84B.
41
Id., § 84C.

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And Sec 84C of the IT Act says that-

84 C Punishment for attempt to commit offences-

“Whoever attempts to commit an offence punishable by this Act or causes such an offence to
be committed, and in such an attempt does any act towards the commission of the offence,
shall, where no express provision is made for the punishment of such attempt, be punished with
imprisonment of any description provided for the offence, for a term which may extend to one-
half of the longest term of imprisonment provided for that offence, or with such fine as is
provided for the offence or with both.”

For any offence to be committed under the IT Act, the offence should be committed through
any electronic device such as cell phone or computer. The Sec-2 (ha)42 of the IT Act gives
definition of the means through which offences under the act can be committed. So, this section
says that-

2(ha)- “Communication Device” means Cell Phones, Personal Digital Assistance (Sic), or
combination of both or any other device used to communicate, send or transmit any text, video,
audio, or image.

In the Baazi- Ghar house Ankita did not have any kind of device such as cell phone or computer
or any communicating device to be liable for committing the offence of any kind of abetment
under IT Act. Further the poll put by Ms. Pooja on speedogram was put by herself alone without
any influence on part of Ms. Ankita. Neither Ms. Ankita saw the poll nor she voted in the poll.
So, in absence of any kind of positive act on part of Ms. Ankita cannot make her liable under
Sect- 84B & 84C of IT Act.

Further, Mr. Suman Shekhar was the producer of the show Baazi- Ghar which was telecasted
on television. Mr. Suman Shekhar has relation to television and not relating to any internet
sources. So, for anything that is telecasted on television IT act does not apply. Like every other
participant Ms. Pooja was also allowed to use mobile phones in the house and use speedogram
as well. Pooja was addicted to speedogram from the very beginning43 and would spend hours
together from beginning. She was addicted to speedo poll as well and many major decisions of

42
Id., § 2(ha).
43
Mock Proposition, pg. 2, ¶ 9.

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hers she would take by the means of speedo poll.44 From the very beginning the producer used
to show her excessive speedogram use on the television.45 As usual the poll she put up on
speedogram on 6.08.2018 was telecasted in the show on 7.08.2018. There was no ulterior
intention or mens rea on part of the producer to telecast the same on television.

Due to absence of the definition of abetment in the IT Act, the definition of ‘abetment’ is taken
from IPC. ‘Abetment’ is defined in Sec-107 of IPC.46 The section says that-

107- Abetment of a thing-

A person abets the doing of a thing, who-

(First) - Instigates any person to do that thing; or

(Secondly) - Engages with one or more other person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or

(Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing.

Firstly, the producer did not use any computer source to show the speedogram usage of Ms.
Pooja. He just telecasted her excessive speedogram usage on television and through the CCTV
cameras only saw what was she posting on speedogram. and second the producer did not
intentionally telecasted speedogram poll of Ms. Pooja on television. It was a regular course of
action and Ms. Pooja was also aware that her speedogram use was being telecasted on
television. And without intention abetment cannot be proved.

“The offence of abetment depends upon the intention of the person who abets, and not upon the
act which is actually done by the person whom he abets.”47 Here there was no intention on part
of the producer to abet the suicide of Ms. Pooja.

“In order to constitute abetment, the abettor must be shown to have “intentionally” aided the
commission of the crime. Mere proof, that the crime charged could not have been committed
without involvement and/or interposition of the alleged abettor is not enough compliance with
the requirement od Sec-107. It is not enough that an act on the part of the alleged abettor
happens to facilitate the commission of the crime. Intentional aiding and therefore active

44
Id., pg. 3, ¶ 13.
45
Id.
46
IPC, supra note 1, § 107.
47
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

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complicity is the gist of offence of abetment under Sec-107.”48 Even if the poll was telecasted
on television it itself is not sufficient to prove abetment on part of the producer without any
express intention proved on part of him.

Even if due to telecast of the poll on the television made Ms. Pooja was feeling embarrassed
or humiliated still the producer will not be held liable for abetment.49

Therefore, due to no use of internet sources like mobile phone and computers by the producer
and no intention on part of Mr Suman Shekhar to abet Ms. Pooja to do anything, he cannot be
held liable for abetment under Sec- 84 B & 84 C of IT Act.

Further Mr. Rohit Sippy is the regional head of Speedogram in the Union of Allogria.
Speedogram is a social networking website where people could share text, photos, videos, etc.
So, here speedogram was an intermediatory. The definition of intermediatory under IT Act has
been given under Section-2(w). The definition is-

2(w)- “ ‘Intermediary’ with respect to any particular electronic records, means any person
who on behalf of another person receives, stores or transmits that record or provides any
service with respect to that record and includes telecom service providers, network service
providers, internet service providers, web hosting service providers, search engines, online
payment sites, online-auction sites, online market places and cyber cafes.”

Speedogram comes under the definition of intermediatary.50 And under Sec- 79 of IT Act
intermediataries are not liable in certain cases. The section says that-

79. Intermediaries Not to Be Liable in Certain Cases.

1. Notwithstanding anything contained in any law for the time being in force but subject to
the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-
party information, data, or communication link made available or hasted by him.
2. The provisions of sub-section (1) shall apply if—

a. the function of the intermediary is limited to providing access to a communication

system over which information made available by third parties is transmitted or
temporarily stored or hasted; or

48
Shri Ram v. State of U.P., AIR 1975 SC 175.
49
Neelam v. State of A.P., 2003 Cr LJ NOC 160 (AP).
50
My Space Inc. vs Super Cassettes Industries Ltd., 2011 (48) PTC 49.

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b. the intermediary does not—

i. initiate the transmission,

ii. select the receiver of the transmission, and
iii. select or modify the information contained in the transmission;
c. the intermediary observes due diligence while discharging his duties under this Act
and also observes such other guidelines as the Central Government may prescribe
in this behalf.
3. The provisions of sub-section (1) shall not apply if—

a. the intermediary has conspired or abetted or aided or induced, whether by threats

or promise or othorise in the commission of the unlawful act;

upon receiving actual knowledge, or on being notified by the appropriate Government or its
agency that any information, data or communication link residing in or connected to a
computer resource controlled by the intermediary is being used to commit the unlawful act, the
intermediary fails to expeditiously remove or disable access to that material on that resource
without vitiating the evidence in any.

Section 79 of the Information Technology Act, 2000, is a non-obstinate clause which provides
immunity from liability under all laws provided the intermediary has not conspired or abetted
or aided or induced in commission of the unlawful act or upon receiving actual knowledge
through any notification about a computer resource in the control of intermediary being used
for unlawful act fails to expeditiously remove or disable access to that material. Intermediaries
will not be liable for any third-party information, data or communication link made available
by them. The Act extends “safe harbor protection” only to those instances where the
intermediary merely acts a facilitator and does not play any part in creation or modification of
the data or information. In the present case Ms. Pooja on her own wish posted the poll on
speedogram where the intermediatary speedogram just acted as a facilitator for the posts of Ms.
Pooja and did not conspired or abetted or aided or induced in commission of any unlawful act.

The intermediataries have to follow the Information Technology (Intermediaries Guidelines)

Rules, 201151 sformed by Central Government in the exercise of powers conferred by Section
87 read with subsection (2) of Section 79 of the Information Technology Act, 2000. The

51
Information Technology (Intermediaries Guidelines) Rules, 2011.

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Intermediaries Guidelines Rules lay down the procedures that an intermediary has to follow to
avail safe harbour. Rule 3(2) of the Intermediaries Guidelines Rules lists the categories of
information, if posted online, which could be considered as illegal. According to Rule 3(4) an
affected person could write to the intermediary to remove any content which is listed as
unlawful under Rule 3(2). The intermediary has to act within 36 hours to remove the content.
If the intermediary does not act within the stipulated time then the intermediary cannot avail
safe harbour. Further no request was made by any judicial body to remove the post from
speedogram.

Because in the decision of Shreya Singhal vs. Union of India52, the Supreme Court of India
while dealing with the case in the context of Article 19 (2) of the Constitution of India viz.
situation in which the right to Freedom of Speech could be regulated, held that under Section
79 of the Information Technology Act, intermediaries are exempt from liability if they fulfil
conditions of the section 79. The Court refrained from striking down Section 79 by reading
down Section 79 (3) (b) and Rule 3 of the Information Technology (Intermediary Guidelines)
Rules, 2011 to hold that the knowledge referred to in this section must be only through the
medium of a court order or through an agency established by the Government.

In the case of Avnish Bajaj v. State,53 in which Avnish Bajaj, the CEO of Baazee.com, an
auction portal, was arrested for an obscene MMS clip that was put up for sale on the site by a
user. Here he was held liable. But this decision was overruled in the case of Aneeta Hada v.
M/s. Godfather Travels and Tours (P) Ltd.54, where it was held that an intermediatary cannot
be held liable a director cannot be held liable under Sec-85 of the IT Act and it should be
exempted under Sec-79 of the IT Act.

But it was held in the Avnish Bajaj case that- “there is no automatic liability of a director for
publication of obscene matter by third party as no mens rea cannot be proved.”

Therefore, Mr. Rohit Sippy cannot be held liable under Sec-84 B & 84C of the IT Act because
speedogram is an intermediatary and is exempted from liability under Sec-79 of the said act
and further there is no mens rea on part of the speedegram head to abet any kind of crime.

52
Shreya Singhal v. Union of India, AIR 2015 SC 1523.
53
Avnish Bajaj v. State, (2008) 105 DRJ 721.
54
Aneeta Hada v. M/s. Godfather Travels and Tours (P) Ltd., 2012 (5) SCC 661.

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 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. Acquit the defendants Ms. Ankita, Mr. Suman Shekhar & Mr. Rohit Sippy from the charges
under Sec- 306 and 153A of Indian Penal Code, 1860 and from Sec- 84B & 84C of Information
Technology Act, 2000.

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.

COUNSEL FOR THE DEFENCE.

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