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TEAM CODE: T-1

UNIVERSITY INSTITUTE OF LEGAL STUDIES


2ND UILS NATIONAL TRIAL ADVOCACY-2016

BEFORE THE COURT OF SESSIONS


AT UNION TERRITORY OF CHANDIGARH
S.C. NO.155 OF 2016

THE STATE (UNION TERRITORY OF CHANDIGARH)


(PROSECUTION)
V.
PIA TANDON (ACCUSED NO. 1)
FARHAN QUERESHI (ACCUSED NO. 2)
(DEFENSE)
FOR OFFENCES CHARGED UNDER:
SECTIONS 302, 292, 295A OF THE INDIAN PENAL CODE, 1860 WITH 67A,
67 OF THE INFORMATION TECHNOLOGY ACT, 2000 AGAINST ACCUSED
NO. 1 AND UNDER SECTION 354C, 292, 295A OF THE INDIAN PENAL
CODE, 1860 WITH 67A, 67, 85 OF THE INFORMATION TECHNOLOGY ACT,
2000 AGAINST ACCUSED NO. 2

UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE


MEMORIAL ON BEHALF OF THE PROSECUTION
TABLE OF CONTENTS

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION

GENERAL SECTION:
INDEX OF AUTHORITIES...I VIII
LIST OF ABBREVIATIONS.IX
STATEMENT OF JURISDICTION..X
STATEMENT OF FACTS..XI
STATEMENT OF CHARGES...XII
QUESTIONS OF LAW...XIII
SUMMARY OF ARGUMENTSXIV - XV

SUBSTANTIVE SECTION:
ARGUMENTS ADVANCED1 20
1. WHETHER THE OFFENCES UNDER SECTION 302, 292 AND SECTION 295A
OF THE INDIAN PENAL CODE, 1860 ARE MADE OUT AGAINST THE
ACCUSED PIA TANDON (ACCUSED 1) AND OFFENCES UNDER SECTION
354C, 292, 295A OF THE INDIAN PENAL CODE, 1860 ARE MADE OUT
AGAINST FARHAN QUERESHI (ACCUSED NO. 2)?.................................1 12
A. THE INVOLVEMENT OF THE ACCUSED PIA TANDON IN THE MURDER OF
THE DECEASED MONA
i) Testimony of Suhas Tandon
ii) Fixing of Spy Camera for unethical purposes
iii) Existence of culpable mental state on the part of Accused 1 Pia Tandon
iv) Accused No.1 is liable to be convicted under Section 302 of the IPC
v) Intoxication not to be taken as a defense
vi) Circumstantial Evidence on record

UNIVERSITY INSTITUTE OF LEGAL STUDIES, 2ND UILS NATIONAL TRIAL


ADVOCACY, 2016

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
B. LIABILITY OF ACCUSED NO.1 AND ACCUSED NO. 2 UNDER SECTION 292,
295A OF IPC AND SECTION 354C, 292, 295A OF THE IPC RESPECTIVELY
i)

Statutory

Provision

with

respect

to

distribution

of

obscene

material

ii) Outraging religious feelings and sentiments


C. ACCUSED NO. 2 ALSO LIABLE TO BE BOOKED UNDER SECTION 292, 295A
AND 354C OF THE INDIAN PENAL CODE
Failure on the part of the website in taking proper action to prevent floating of

i)

obscene material over the internet


2. WHETHER THE OFFENCES UNDER SECTION 67AND SECTION 67A OF THE
INFORMATION TECHNOLOGY ACT, 2000 ARE MADE OUT AGAINST BOTH
ACCUSED PERSONS AND FARHAN QUERESHI IS ALSO ADDITIONALLY
LIABLE UNDER SECTION 85 OF THE INFORMATION TECHNOLOGY ACT,
2000?.............................................................................................................13 19
A. CHARGES AGAINST ACCUSED NO. 1 PIA TANDON FOR UPLOADING THE
PRIVATE VIDEO
i) Process/ Instrument adopted for collecting and uploading the video by Accused No. 1
ii) Identification of Accused No. 1
iii) Corroboration of the statements of P.W. 3 and P.W. 5 and charges applicable
iv) Interpretation of law
B. CHARGES AGAINST ACCUSED NO. 2 FARHAN QUERESHI
i) Website utilized for the purpose of distribution of video uploaded by Accused No. 1
ii) Interpretation of the law/
iii) Failure to monitor material for obscene matter

INDEX OF AUTHORITIES
BOOKS REFERRED
S. No
1.
3

Name Of The Books


DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (2nd
ed. 2005)

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
2.

MALIKS, MURDER TRIAL (2nd ed. 2012)

4
3.

Prof. N.V. PARANJAPE , INDIAN PENAL CODE ( 2nded. 2013)

5
4.

S.N.MISRA , THE CODE OF CRIMINAL PROCEDURE , 1973 (18th ed.

2012)

5.

GLANVILLE WILLIAMS, TEXT BOOK OF CRIMINAL LAW (2nd ed.)

7
6.

P S A PILLAIS , CRIMINAL LAW (12TH ed. 2014)

8
7.

RATANLAL & DHIRAJLAL , LAW OF CRIMES , VOLUME 2 (26th ed.

2007)

8.

B.M.GANDHI, INDIAN PENAL CODE (3rd ed. 2010)

10
9.

SHAMSUL HUDA , PRINCIPLES OF THE LAW OF CRIMES (1st ed.

11 2011)
10. WOODROFFE , COMMENTARIES ON CODE OF CRIMINAL
12 PROCEDURE, VOLUME 2 (3rd ed. 2009)
11. K.D. GAUR, CRIMINAL LAW (7th ed. 2014)
13
12. R. V. KELKAR, CRIMINAL PROCEDURE (5th ed. 2012)
14
13. CK THAKKAR TAKWANI, CRIMINAL PROCEDURE (3rd ed. 2012)
15

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
14. GLANVILLE WILLIAMS, CRIMINAL LAW (2nd ed. 2012)
16
15. KENNYS OUTLINES OF CRIMINAL LAW (19th ed. 2006)
17
16. S.S. SRIVASTAVA, CRIMINOLOGY CRIMINAL ADMINISTRATION (3rd
18 ed. 2007)
17. S.N. MISHRA, INDIAN PENAL CODE (19th ed. 2013)
19
18. DR. AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (21st ed.
20 2014)

STATUES REFERRED
S No.
1

Name of the Statues


CODE OF CRIMINAL PROCEDURE, 1973(REVISED)

INDIAN PENAL CODE , 1860

THE CONSTITUTION OF INDIA, 1950

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
4

INDIAN EVIDENCE ACT, 1872

INFORMATION TECHNOLOGY ACT, 2000

DICTIONARIES REFFERED
S No.
1.

Name Of The Reporters


BLACKS LAW DICTIONARY WITH PRONUNCIATIONS CENTENNIAL

2.

Ed. (1891 1991)


OXFORD DICTIONARY OF LAW OXFORD UNIVERSITY PRESS Ed.

3.

(2015)
BURTONS LEGAL THESAURUS WILLIAM C. BURTON 4th Ed. (1980)

CASES REFERRED
INDIAN CASES
S No.
1

Case Name
Gambhir v. State of Maharashtra

Citation
AIR 1982 SC 1157

Veeramuthu

(1971) 3 SCC 427

Mahadeo Ganpat Badawans

AIR 1977 SC 1756

Raghunondan v. State of UP

(AIR 1974 SC 463)

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
5

Sarwan Singh v. State of Punjab

(AIR 1976 SC 2304)

Arun Kumar v. State of U.P.

(AIR 1989 SC 1445)

Vasudevan v. State

1993 CrLJ 3151 (Ker)(DB)

Krishnan v. State

2001 (64) ACC 288 (SC)

P.Venkaiah v. State of A.P.

AIR 1985 SC 1715

Basdev

AIR 1956 SC 488

10

Akulputtee Gossain

( 1866 ) 5 WR ( Cr ) 58

11

Bhikahri Behera v. State of Orissa

1995 Cri LJ 2998 at 3000

12

Virsa Singh v. State of Punjab

(AIR 1958 SC 465)

13

Kandavanathil Baby v. State

1983 CrLJ 1186 (Ker) (DB)

14
15

JiwanLal v. State of M.P


Nisar Ali v State of UP

1997 (1) Crimes 1 (SC)


AIR 1957 SC 366 AT 368

16

Paramjeet Singh v.State of Uttarakhand

2011 Cri LJ 663 2011 (3)


AIR Ker R 476

17

Pohalya Motya valve v. State of Maharashtra

AIR 2009 SC 2558


AIR 1979 SC 1949 at 1950

18

Hanumant v. State Of Madhya Pradesh

AIR 1952 SC 343

19

Charan Singh v. State of UP

1952 SCR 1091


AIR 1967 SC

20

Devanandan Mishra v. State Of Bihar

(1955) 2 SCR 570

21

Bakshish Singh v. State Of Punjab

AIR 1955 SC 801


AIR 9171 SC 2016

22

Awadhi Yadav v. State Of Bihar

AIR 1971 SC 69

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
23

Rahman v. State Of UP

AIR 1972 SC 110

24

Udaipal Singh v. Uttar Pradesh

AIR 1972 SC 54

25

Nika Ram v. State Of Himachal Pradesh

AIR 1972 SC 2077

26

Chand Mal v. State Of Rajasthan

AIR 1967 SC 917

27

Dhananjoy Chatterjee v. State of West Bengal

1994 SCC (Cri) 358 at 367

28

Udai pal Singh v. State of UP

AIR 1972 SC 54

30

Sanatan Naskar v. State of WB

2011 (72) ACC 488 (SC)

31

Iqbal Musa Patel v. State of Gujarat

2011 Cri LJ 1142 (SC) at p.

32

Samaresh Bose v. Amal Mitra

1146 (SC)
(1985) 4 SCC 289

33

Chandrakant Kalayandas

AIR 1970 SC 1390

34

Siva Ram Das v. State of Punjab

AIR 1955 Punj 28

35

A.jayaram v state of Andhra Pradesh, by CBI

AIR 1995 SC 2128 at 2138,

36

Laxmipal v. State of Maharashtra

2139.
1968 CrLJ 622 (Cal) (DB)

37

Kirpal Singh v. State of Punjab

AIR 1965 SC 712

38

Saindudden v. State of Kerala

1992 CrLJ 1644 ( Ker) (DB)

39

State of Punjab v. Ramji Das

AIR 1977 SC 1085

40

Naseem Ahmed v. Delhi administration

(1977) 4 SCC 597 (2)


AIR 1974 SC 691

41

SWIL Ltd. v. State of Delhi

SLP (crl.) 620 of 2001

42

R.K. Dalmia v. Delhi Administration

1962 AIR 1821

43

Keshub Mahindra v. State of Madhya Pradesh

1963 SCR (1) 253


II(1996)ACC292,

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
1996VIAD(SC)657,
1996(2)ALD(Cri)662,
1996(3)Crimes288(SC),
1996()JLJ702(SC),
JT1996(8)SC136,
1996(6)SCALE522,
(1996)6SCC129,
44

Sushil Ansal v. State

45

Raghubans Dubey v. State of Bihar

[1996]Supp6SCR285
2002 Crl LJ 1369
1967 AIR 1167,
1967 SCR (2) 423 (SCC, p.
689)

INTERNATIONAL CASES:

S No.
1

Case Name
Little John v. State

Citation
76 Ark 98 SC 463

Hardman v. State

17 Ala App 49

Marler v. State

67 Al 55: 42 Am Rep 95

Lancaster v. State

(Tex Cri Rep ) 31 Sec

Walken v. State

63 Ala.105

State v. Larkin

59 Idaho 200 : 47 p.945

Washington vs. State

155 Ala.2: 46 So.778

R v. Hicklin

L.R. 3 Q.B. 360 (1868)

Miller v. California

413 U.S. 15,27 ( 1973 )

10

Hamling v. United States

418 u.s.87,101 ( 1974)

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
11

United States v. Thomas

74 F.3d 701 ( 6th Cir.1996)

12

Godfry v. Denon

(1999) 4 Al ER 342 (HC)

13

Reno v. ACLU

521 U.S. 844 (1997)

14

United States v. American Library Association

539 U.S. 194 (2003)

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION

ABBREVIATIONS
TERMS

MEANING

&
V.
PW
DW
IT
Anr.
Ors.
Honble
SCC
AIR
CrPC
IPC
FIR

And
Versus
Prosecution Witness
Defense Witness
Information Technology
Another
Others
Honorable
Supreme Court Cases
All India Reporter
Code of Criminal Procedure
Indian Penal Code
First Information Report

STATEMENT OF JURISDICTION

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
The Honble Court has jurisdiction to try the instant matter under Section 177 read with
Section 209 of the Code of Criminal Procedure, 1973.
Section 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: 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.

The Prosecution shall, accept any Judgement, Order or Decree of this Honble Court as final
and binding upon them and shall execute it in it good faith.

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
STATEMENT OF FACTS
The Prosecution in the present trial is The State (Union Territory of Chandigarh).
The Defense in the present trial is Mrs. Pia Tandon and Mr. Farhan Quereshi.
List of Prosecution witnesses:

P.W.1 Mr. Nitin Rastogi, The Informant who is the brother of the deceased and is a
software engineer.
P.W.2. Mr. Suhas Tandon, The boss of the deceased with whom the deceased had
illicit relationship.
P.W.3 Mr. Rajesh Sherwal, Owner of High Speed Caf from where the obscene video
was uploaded.
P.W.4 Mr. Himanshu Garg, Pancha to the investigation carried out on 14th Mar, 16.
P.W.5 I.O. Shamsher Singh, The Investigating Officer in the present case.

List of Defense witnesses:

D.W.1 Mrs. Pia Tandon, Wife of Suhas Tandon who is accused of uploading obscene
video. Accused No. 1 in this case.
D.W.2 Mr. Farhan Quereshi, The CEO of Buy It Sell It and Co. Accused No. 2. The
owner of the website through which the video was uploaded.
D.W.3 Mr. Aniruddh Sethi, The father of Accused No. 1.
D.W.4 Mr. Babu Rao Apte, Intern at Mr. Tandons advertising agency.
D.W.5 Mr. Bahadur Ram, Cook of Mr. and Mrs. Tandons house.
BONE OF CONTENTIONS

In the present trial, an FIR was registered by the informant for an attempted suicide by the
deceased upon receiving a text message from the deceased in that regard. The investigation
initially focused on reasons for committing such suicide by the deceased which were put forth
to be torture faced by her in the society and at work in respect to the uploading of her obscene
video with her boss Suhas Tandon. Upon further investigation elements of foul play were
found which created a possibility of involvement of Accused No. 1 Pia Tandon in the murder
of the deceased. Furthermore, charges were also made out against uploading such obscene
content on the part of Accused No.1 and lack of filters to block such content on the part of
Accused No.2.
HENCE, THE PRESENT TRIAL

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
STATEMENT OF CHARGES

The Accused No. 1 has been charged under sections 302/292/295A of the Indian Penal Code,
1860 which are relating to offences of Murder, Sale, etc. of obscene material and Malicious
acts intended to outrage religious feelings of any class respectively with sections 67A/67 of
the Information Technology Act, 2000 which are of Transmitting material containing sexually
explicit act in electronic form and Transmitting Obscene material in electronic form
respectively.
The Accused No. 2 has also been charged with Section 354C/292/295A of the Indian Penal
Code, 1860 which are relating to offences of Voyeurism, Sale, etc. of obscene material and
Malicious acts intended to outrage religious feelings of any class respectively with sections
67A/67/85 of the Information Technology Act, 2000 which are of Transmitting material
containing sexually explicit act in electronic form, Transmitting Obscene material in
electronic form and Offence by companies respectively.

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
ISSUES RAISED
QUESTIONS OF LAW

I
WHETHER THE OFFENCES UNDER SECTION 302, 292 AND SECTION 295A OF THE
INDIAN PENAL CODE, 1860 ARE MADE OUT AGAINST THE ACCUSED PIA
TANDON (ACCUSED 1) AND OFFENCES UNDER SECTION 354C, 292, 295A OF THE
INDIAN PENAL CODE, 1860 ARE MADE OUT AGAINST FARHAN QUERESHI
(ACCUSED NO. 2)?

II
WHETHER THE OFFENCES UNDER SECTION 67AND SECTION 67A OF THE
INFORMATION TECHNOLOGY ACT, 2000 ARE MADE OUT AGAINST THE
ACCUSED PIA TANDON AND FARHAN QUERESHI IS ALSO ADDITIONALLY
LIABLE UNDER SECTION 85 OF THE INFORMATION TECHNOLOGY ACT,
2000?

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION
SUMMARY OF ARGUMENTS

ISSUE 1
WHETHER THE OFFENCES UNDER SECTION 302, 292 AND SECTION 295A OF THE
INDIAN PENAL CODE, 1860 ARE MADE OUT AGAINST THE ACCUSED PIA
TANDON (ACCUSED 1) AND OFFENCES UNDER SECTION 354C, 292, 295A OF THE
INDIAN PENAL CODE, 1860 ARE MADE OUT AGAINST FARHAN QUERESHI
(ACCUSED NO. 2)?

It is humbly submitted that under this issue the prosecution has stated that Accused No.1 Pia
Tandon has a malafide intention and in furtherance of the same she recorded a video of her
husband and the deceased in order to circulate and blackmail her husband for unlawful gains.
Moreover the website which she used for the said purpose did not provide for sufficient and
adequate means of filter protection of such obscene content and hence Accused No. 2, the
CEO is also liable and charged respectively. In addition to the circulation of the video, the
Accused No. 1 also is liable under Sec 302 of the IPC for the murder of the deceased which
was committed in order to take revenge over the deceased by the accused.

MEMORIAL FOR THE PROSECUTION

GENERAL SECTION

ISSUE 2
WHETHER THE OFFENCES UNDER SECTION 67AND SECTION 67A OF THE
INFORMATION TECHNOLOGY ACT, 2000 ARE MADE OUT AGAINST THE
ACCUSED PIA TANDON AND FARHAN QUERESHI IS ALSO ADDITIONALLY
LIABLE UNDER SECTION 85 OF THE INFORMATION TECHNOLOGY ACT, 2000?

The accused persons are also liable under the said provisions of the Information Technology
Act, 2000 for circulation of obscene pornographic material over the internet and the Accused
No. 2 is liable on behalf of his company as it was his duty, holding a position of trust and
responsibility to prevent such a massacre to take place. The accused persons have been
charged accordingly.

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
ARGUMENTS ADVANCED

WHETHER THE OFFENCES UNDER SECTION 302, 292 AND SECTION 295A OF
THE INDIAN PENAL CODE, 1860 ARE MADE OUT AGAINST THE ACCUSED PIA
TANDON (ACCUSED 1) AND OFFENCES UNDER SECTION 354C, 292, 295A OF
THE INDIAN PENAL CODE, 1860 ARE MADE OUT AGAINST FARHAN QUERESHI
(ACCUSED NO. 2)?
The present issue arises before this Honble Court as the State herein referred to as the
Prosecution charges against Pia Tandon herein referred as (Accused No.1) for offences
committed under Section 302, 292, 295A of the Indian Penal Code, 1860 and also against
Farhan Quereshi herein referred as (Accused No.2) for offences committed under Section
354C, 292, 295A of the Indian Penal Code, 1860.
A. THE INVOLVEMENT OF THE ACCUSED PIA TANDON IN THE MURDER OF
THE DECEASED MONA
i)Testimony of Suhas Tandon
1. It is submitted humbly submitted that Mr. Suhas Tandon s/o Bajirao Tandon r/o #8001,
Sector 20-F, Chandigarh, who is the husband of Accused No. 1 in this case, had a very
close association / relationship with his private secretary namely Ms. Mona Rastogi,
who is the deceased in the present matter. It is further submitted that the Accused No. 1
Ms. Pia Tandon was aware and had knowledge1 about the affair of the deceased with her
husband.
2. Thereafter, it is submitted that the Mr. Suhas Tandon has stated in his testimony that his
wife Ms. Pia Tandon was distorted and unhappy regarding the close association
between her husband and the deceased. The husband and the accused used to indulge
into frequent quarrels due to the affair of her husband with the deceased. It has further
disclosed in the statement of Suhas Tandon that his wife (accused) had fixed a spy
camera in his office chamber.
ii)

Fixing of Spy Camera for unethical purposes


3. It is further submitted that initially the reason for inserting the spy camera was to verify
as to what sort of relationship existed between the deceased and her husband and further
if there is any private actor conversations which might be recorded, the same could be
used for blackmailing both of them for unethical benefits by the accused.

1 Statement of D.W. 1 Pia Tandon, Page 13 Trial Proposition

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
4. It is submitted that the fixing of a spy camera in her husbands office has been admitted
by the accused Ms. Pia Tandon in her statement2 and in furtherance of the same; the
accused has justified her stand by giving a defense that the spy camera that was inserted
in her husbands office was broken during a quarrel that had taken place between the
accused and her husband. However, even if an assumption is drawn; the camera from
which the video so recorded was broken, then also the video that the alleged broken
camera had recorded would be available as it could be easily retrieved from the storage
of such a device. It is further submitted that the accused had made copies of the video
which was in her possession.
iii) Existence of culpable mental state on the part of Accused 1 Pia Tandon
5. Thereafter, it is submitted that during a quarrel the accused had particularly stated to her
husband that I will hurt you, you and that woman! Just like you hurt me! Someday,
somehow, I will hurt you.3 Therefore, in the light of the above it is submitted that the
accused had a pre-meditated plan to hurt her husband and she was also successful in the
execution of the same. It is submitted that Threats as observed by a recent author,
are often disregarded and despised: it is only the more timid dispositions that are
influenced by them: and in most minds there is an unwillingness even if fear be felt, to
manifest it by any outward acts or cautionary proceedings. To this contempt of the mere
language of an enemy, and the exposure of the person which has followed, have many
courageous persons notoriously owed their deaths. And it may be that the threatener, in
these cases, had counted, in advance, upon every circumstance.4
6. Thus, by connecting the dots it is very clear that the deceased was just causing a
hindrance in the life of the accused Pia Tandon and keeping in mind the circumstances
at hand, the motive for killing the deceased by the accused is very clear. The accused
has set up the crime scene in a way that the murder should look like an attempted
suicide. In establishing a motive for a crime by one spouse upon, another, the
prosecution may show that one spouse had an infatuation for, criminal relations with

2 Statement of D.W. 1 Pia Tandon, Page 13 Trial Proposition


3 Statement of P.W. 2 Suhas Tandon, Page 7 Trial Proposition
4 Burrills Circumstantial Evidence 342 Best, 4th Ed. Sec.458 at p.380

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
other persons.5 The relations of the deceased or the accused with the third person may
be shown when such evidence shows a motive for the commission of the homicide.6
7. Motive cannot be established through facts and circumstances of which the accused
himself has no knowledge of,7 but again is limited by the fact that the actual knowledge
need not be shown, when it appears that there was opportunity to be informed, or that a
rumour concerning the same existed in the vicinity where the accused and the deceased
were neighbours.8
iv) Accused No.1 is liable to be convicted under Section 302 of the IPC
8. It is submitted that on the date of murder of the deceased Mona i.e. 14th March 2016 at
around 6:30 P.M. the deceased, was very upset with the video which was uploaded on
the website www.sell-it.com and the social stigma which she had to face. Devastated
from the said act she wrote to her brother via text message that Bhaiya, I am so sorry;
I have brought so much shame to myself and my family. But I am praying for it every
day at work and in the society. I have no friends left at all and it is all because of that
woman, Pia. She has caused to me so much suffering. She along with that stupid
website is responsible for all my pain. I barely have a sane thought anymore. I think it
will be better if I end this here and now. This is further corroborated by the statement
of P.W.1 (brother of the deceased who is also the complainant in the present matter)
who has admitted that he received a message from his sister conveying the above
information at around 6:30 P.M.9
9. It is held by the Honble Apex Court merely because the witness is related to the
deceased or is a partisan witness is no ground to reject his testimony, if it is otherwise
found to be consistent and true.10 It is inconceivable that the informant would leave

5 Little John v. State, 76 Ark 98 SC 463


6 Hardman v. State, 17 Ala App 49
7 Marler v. State, 67 Al 55: 42 Am Rep 95.
8 Lancaster v. State, (Tex Cri Rep ) 31 Sec., W 515.
9 Statement of P.W. 1 Nitin Rastogi, Page 6 Trial Proposition
10Sarwan Singh v. State of Punjab, (AIR 1976 SC 2304)

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
the real culprits and foist false case on the accused persons in order to oblige the
prosecution witness who is inimical towards the accused.11
10. It is further submitted that on the same day the accused with the intention to kill the
deceased entered her house at around 7 PM on the false assurance of solving out the
dispute with her. This further corroborates with the statement of P.W.2 that the
accused was not at home when he came back from office at around 7:30 PM.12 It is
further submitted that the presence of an empty whiskey bottle and an empty leaflet of
an anti-depressant medication Cipralex on her side table as stated by P.W. 4
Himanshu Garg, who is the pancha in the present matter13 and the post-mortem report
which states to the presence of liquor in her blood and marks of injury on the neck
gives an inference that accused smartly on the pretext of solving the matter had a
drink with the deceased that contained intoxicating substance which made the
deceased unconscious and as a result thereafter the accused killed her by tying a rope
around her neck and thereafter tying the other end of the rope to the ceiling fan so that
it is portrayed as an act of suicide. It has been held that the presence of mark around
the neck of the dead body lead to the conclusion that the deceased was strangulated to
death.14 Hence Accused No.1 is liable to be booked under Section 300 of the IPC.
Section 300 of the IPC is reproduced as follows:
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder,
if the act by which the death is caused is done with the intention of causing death, or2ndly.-If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused. or3rdly.-If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to
cause death, or4thly.-If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death, or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
11Arun Kumar v. State of U.P., (AIR 1989 SC 1445: 1989 Cr. LJ 1460)
12 Statement of P.W. 2 Suhas Tandon, Page 7 Trial Proposition
13 Statement of P.W. 4 Himanshu Garg, Page 9 Trial Proposition
14Vasudevan v. State, 1993 CrLJ 3151 (Ker)(DB)

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
11. The court in a series of decisions has consistently held that when a case rests upon
circumstantial evidence, such evidence must satisfy the following tests:15
1. The circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
2. Those circumstances should be of definite tendency unerringly pointing towards
guilt of the accused;
3. The circumstances, taken cumulatively , should form a chain so complete that there
is no escape from the conclusion that with all human probability the crime was
committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt of the accused but should
be inconsistent with his innocence16.
12. It is humbly submitted that in the present matter the Accused No.1 entered the house
of the deceased with the premediated intention of killing her and the circumstantial
facts clearly establish the intention of killing Mona (deceased in the present matter)
and further the post-mortom report further clarifies that the injuries which were
inflicted were sufficient in the course of the nature to cause death and hence the
Accused No.1 is liable to booked under Section 302 of the IPC. It has been held that if
the medical evidence showed that those injuries were sufficient in the ordinary course
of nature to cause death, the accused would then be guilty under section 302.17
13. The kinds of evidence to prove an act vary in probative strength and the absence of
one kind may be more significant than the absence of another, but the mere absence of
any one kind cannot be fatal. There must have been a plan to do the act, the accused
must have been present, but there may be no evidence of preparation, or there may be
no evidence of presence, yet the remaining facts may proof ample proof.18
14. It is always relevant to put in evidence of jealousy and unrequited love, and the facts
on which they rest, as showing motive.19 Such feelings may be proved either by the
15 Krishnan v. State, 2001 (64) ACC 288 (SC)
16 Gambhir v. State of Maharashtra, AIR 1982 SC 1157
17 Veeramuthu, (1971) 3 SCC 427: 1971 SCC (Cri) 675; Mahadeo Ganpat Badawans, AIR 1977 SC
1756: 1977 Cri LJ 1148 (SC)
18 Section 118 of Wigmore, Vol. I,P. 559 of evidence
19 Walken v. State, 63 Ala.105

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
declaration of the accused, or by facts and circumstances that show the relation
between the accused, the deceased and the person who was the cause of such feeling.20
15. It has been held by the Honble Apex Court that failure send the blood for chemical
examination need not jeopardise the success of the prosecution case where there is
other reliable evidence to fix the scene of occurrence.21 It has been held by the
Honble Supreme Court that medical science is not yet so perfect as to determine the
exact time of death nor can the same be determined in a computerised or mathematical
fashion so as to be accurate to the last second.22
v) Intoxication not to be taken as a defense
16. It has been held by the Honble Apex Court that even if it is taken as a defense that the
accused was under the influence of drink, she was not so much under its influence that
his mind was so obscured by the drink that there was incapacity in her to form the
required intention and held that the accused was guilty of murder.23 Intoxication is no
excuse for throttling to death a weaker man who was also intoxicated.24
17. In any case, prosecution is not bound to prove motive of any offence inasmuch as
motive is only known to the perpetrator of the crime and may not be known to others.
It does not, therefore, follow that if motive is not proved, the evidence of any witness,
become automatically unreliable.25
18. It is submitted that their Lordships pointed out that for the application of Sec 300,
Penal Code it must be first established objectively what that nature of that injury in the
ordinary course of nature is. If the injury is found to be sufficient to cause the death,
one test is satisfied. Then further it must be proved that there was intention to inflict
that very injury and not some other injury and that it was not accidental or
unintentional. If this is also held against the offender, the offence of murder is
20 State v. Larkin, 59 Idaho 200 : 47 p.945; Washington vs. State, 155 Ala.2: 46 So.778
21Raghunondan v. State of UP, (AIR 1974 SC 463:1974 CrLJ 453)
22 P.Venkaiah v. State of A.P., AIR 1985 SC 1715, 1985 CriLJ 2012, 1985 (2) Crimes 746 SC, 1985
(2) SCALE 358, (1985) 4 SCC 80, 1985 (17) UJ 1048 SC
23 Basdev, AIR 1956 SC 488: 1956 Cri LJ 919 ( SC ): 1956 SCR 363
24 Akulputtee Gossain, ( 1866 ) 5 WR ( Cr ) 58 : Nga ThetHnin ( 1899 ) PJLB 550
25 Bhikahri Behera v. State of Orissa, 1995 Cri LJ 2998 at 3000.

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
satisfied.26
vi) Circumstantial Evidence on record
19. It is further submitted that the broken glass utensil found inside the bathroom with
traces of blood on it and a single strand of long brown hair suggest to the fact that the
accused after killing the deceased escaped through the back side of the house via
bathroom, so that she couldnt be spotted by any eye. The version of the statement of
P.W.5 i.e. the investigating officer in the present case with regards to the Accused No.
1 not being able to walk properly and favouring her left leg and having a bandage on
her right hand without having proper justification for the same and her becoming
anxious while answering questions in that aspect showed clear guilt on the part of the
accused.27 It has been held that the evidence of an investigating officer can be acted
upon even if not corroborated by other evidence.28
20. It is submitted that the bleeding from her right palm and other injuries was because of
the window pane she smashed in order to escape from the crime spot. It is also
submitted that her denial to give her blood samples further points to the guilt of the
accused if the above mentioned circumstances are taken into consideration. The
principle of falsus in uho falsus in omnibus does not apply to criminal trials and it is
the duty of the court to separate the grain from the chaff instead of rejecting the
prosecution case on general grounds.29 Moreover, it is merely a rule of caution. The
doctrine merely involves the question of weight of evidence which a court may apply
in a given set of circumstances but it is not what may be called a mandatory rule of
evidence.30 The circumstances should be of a conclusive nature and tendency.31
Where the case depends on circumstantial evidence, at the outset the well established
principle governing the appreciation of the evidence in the case dependent upon
26Virsa Singh v. State of Punjab, (AIR 1958 SC 465: 1958 CrLJ 818: 1958 SCR 1495)
27 Statement of P.W. 5 Shamsher Singh, Page 10 Trial Proposition
28Kandavanathil Baby v. State, 1983 CrLJ 1186 (Ker) (DB)
29JiwanLal v. State of M.P., 1997 (1) Crimes 1 (SC)
30 Nisar Ali v State of UP, AIR 1957 SC 366 AT 368
31 Paramjeet Singh v.Sstate of Uttarakhand, 2011 Cri LJ 663 2011 (3) AIR Ker R 476 ; AIR 2009 SC
2558

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
circumstantial evidence may be borne in mind. Briefly the principles are that each
circumstance relied upon by the prosecution must be established by cogent, succinct
and reliable evidence, that the circumstance relied upon must be such as cannot be
explained on any hypothesis except the guilt of the character.32
21. In a case based on circumstantial evidence, the existence of motive assumes
significance though the absence of motive does not necessarily discredit the
prosecution case, if the case stands otherwise established by other conclusive
circumstances and chain of circumstantial evidence is so complete and is consistent
only with the hypothesis of the guilt of the accused and inconsistent with the
hypothesis of his innocence. 33
22. If the circumstantial evidence shows that the accused having a strong enough motive
had the opportunity of committing the crime and established circumstances on the
record considered along with explanation if any of the accused excluded the
reasonable possibility of anyone also being the real culprit then the chain of evidence
can be considered to be complete as to show that in all human probability that the
crime must have been committed by the accused .he may in the event safely be held
guilty.34All these circumstances establish the case of the prosecution beyond any
reasonable doubt. 35
23. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts
or lingering suspicions and thereby destroys social defence. Justice cannot be made
sterile on the plea that it is better to let a hundred guilty escape than punish an
innocent. 36

32 Pohalya Motya valve v. State of Maharashtra, AIR 1979 SC 1949 at 1950; Hanumant v. State Of
Madhya Pradesh, AIR 1952 SC 343 : 1952 SCR 1091: Devanandan Mishra v. State Of Bihar, (1955) 2
SCR 570: AIR 1955 SC 801; Charan Singh v. State of UP, AIR 1967 SC , Bakshish Singh v. State Of
Punjab; AIR 9171 SC 2016 ; Awadhi Yadav v. State Of Bihar AIR 1971 SC 69, Rahman v. State Of
UP, AIR 1972 SC 110, Udaipal Singh v. Uttar Pradesh AIR 1972 SC 54 , Nika Ram v. State Of
Himachal Pradesh AIR 1972 SC 2077, Chand Mal v. State Of Rajasthan AIR 1967 SC 917
33 Dhananjoy Chatterjee v. State of West Bengal, 1994 SCC (Cri) 358 at 367
34 Udai pal Singh v. State of UP, AIR 1972 SC 54
35 Sanatan Naskar v. State of WB, 2011 (72) ACC 488 (SC)
36 Iqbal Musa Patel v. State of Gujarat, 2011 Cri LJ 1142 (SC) at p. 1146 (SC)

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
B. LIABILITY OF ACCUSED NO.1 AND ACCUSED NO. 2 UNDER SECTION 292,
295A OF IPC AND SECTION 354C, 292, 295A OF THE IPC RESPECTIVELY
i) Statutory Provision with respect to distribution of obscene material
24. It is said that "controlling pornography on the internet is problematic but at the same
time necessary because we may not know from whom or from where the material
originates, how many people are receiving the information, or if the material is
crossing international boundaries."37
25. It is submitted that Accused No.1 in the present matter has been booked under section
292 and 295A of the IPC. Section 292 and section 295A of the IPC is reproduced as
under:
Section 292 of the Indian Penal Code, 1860:
(1) For the purposes of subsection (2), a book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other object, shall be deemed to be obscene if it
is lascivious or appeals to the prurient interest or if its effect, or (where it comprises
two or more distinct items) the effect of any one of its items, is, if taken as a whole,
such as to tend to deprave and corrupt person, who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or embodied in it.

(2) Whoever(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation, or for purposes of sale, hire, distribution, public exhibition or circulation,
makes, produces or has in his possession any obscene book, pamphlet, paper, drawing,
painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid,
or knowing or having reason to believe that such object will be sold, let to hire,
distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows
or has reason to believe that any such obscene objects are for any of the purposes
aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly
exhibited or in any manner put into circulation, or
37 See Robyn Forman Pollack, "Creating the Standards of a Global Community: Regulating
Pornography on the Internet- an International Concern" 10 Temple International and Comparative
Law Journal, (Fall, 1996) 467.

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SUBSTANTIVE SECTION
(e) Offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment of either description for a
term which may extend to two years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with imprisonment of
either description for a term which may extend to five years, and also with fine which
may extend to five thousand rupees.
26. The main ingredients of the offense are as follows:
It has been held in the case of that in order to constitute an offence under section 292
of the IPC, the matter complained of as obscene must be so gross and its obscenity so
pronounced that it is likely to deprave and corrupt those whose minds are open to
influence of this sort and into whose hand the book is likely to fall. 38 In considering
the question of obscenity of a publication, the court has to see whether a class, not an
isolated case, into whose hands the book, article or story falls suffer in their moral
outlook or become depraved by reading it or might have impure and lecherous
thoughts aroused in their minds.39
27. It is humbly submitted that in the present matter, the Accused No.1 Pia has put the
obscene video of the deceased with Mr. Suhas Tandon into circulation by the use of
the internet and thus she is liable to be booked under section 292(2)(a) of the IPC.
There has been an indirect sale of the video through the use of the internet. The Indian
law of obscenity has been borrowed from English Law, it would be appropriate to
examine the test of obscenity given by Cockburn, C.J. of House of Lords in which is
perhaps the earliest case on subject, as follows:The test of obscenity is this, whether the tendency of the matter charged as obscenity
is to deprave and corrupt those whose minds are open to such immoral influence and
into whose hands a publication of this sort may fall. It is quite certain that it would
suggest to the mind of young of either sex, or even to persons or more advanced year,
thoughts of most impure and lascivious character.40
28. The United States Supreme Court in this case has laid down contemporary
community standard test to define an obscenity offence. The rule allows the State
38 Samaresh Bose v. Amal Mitra, ( 1985 ) 4 SCC 289
39 Chandrakant Kalayandas, A.I.R 1970 S.C. 1390
40 R v. Hicklin, L.R. 3 Q.B. 360 (1868)

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SUBSTANTIVE SECTION
considerable latitude in framing obscene statutes keeping in view the understanding of
the community.41
29. Section 295A of the Indian Penal Code, 1860: Deliberate and malicious acts, intended
to outrage religious feelings of any class by insulting its religion or religious beliefs:
Whoever, with deliberate and malicious intention of outraging the religious feelings of
any class of citizens of India, by words, either spoken or written, or by signs or by
visible representations or otherwise, insults or attempts to insult the religion or the
religious beliefs of that class, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.
30. The main ingredient of the section is to insult or attempt to insult the religion or the
religious beliefs of any class of citizens of India. In brief, to invoke section 295A, IPC
the following ingredients must exist:1) The accused must insult or make an attempt to insult the religion or religious
beliefs of any class of persons
2) The said insult etc. must be with deliberate and malicious intention of outraging the
religious feelings of the said class of citizens.
3) The said insult must be by words, either spoken or written or by signs or by visible
representation or otherwise.
31. It is submitted that in the present matter the video that was uploaded on the website
had the picture of Gyan Baba Ji in the background. It is further submitted that the
picture was deliberately and intentionally inserted in the background so as to ensure
that the video not only evaded all the security filters of the website but also to harm
the business of Suhas Tandon in respect of Gyan Baba Ji Herbal Products. It is further
submitted that the deliberate and malicious intention on the part of Accused No.1 in
this regard can be reasonably inferred from the title given to such obscene video
which was Baba Ji Blesses Happy Office Couple42. Hence the ingredients of the
offense are proved and charge of Section 295A is rightly sustained. It has been held in
this case that this section only punishes an aggravated form of insult to religion when
it is perpetrated with the deliberate and malicious intention of outraging the religious
feelings of a class.43

41 Miller v. California, 413 U.S. 15,27 ( 1973 )


42 Statement of D.W. 2 Farhan Quereshi, Page 14 Trial Proposition
43 Siva Ram Das v. State of Punjab, AIR 1955 Punj 28

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SUBSTANTIVE SECTION
ii) Outraging religious feelings and sentiments
32. It is submitted that the spy camera was installed by Accused No.1in the office of her
husband which had the clipping of him and the deceased engaging in sexual
intercourse. It is furthermore submitted that the clipping of the video was installed by
the accused on the website www.sell-it.com in order to take revenge from her husband
and the deceased. It is also submitted that the video which was uploaded on the
website had Gyan Baba Jis picture in the background and was titled as Baba Ji
Blesses Happy Office Couple. It is further submitted that as a result of this act, there
was an outrageous protest by the supporters of the Gyan Baba Ji which lead to the
filing of large number of complaints claiming hurt of religious feelings and sentiments
of the followers of Gyan Baba Ji.
33. In furtherance of the same it is submitted that Accused No.1 has been rightly charged
under section 292 and 295A of the Indian Penal Code, 1860. It is submitted that there
has been selling and distribution of the obscene matter through the website and hence
the charges under Section 292 are rightly sustained. It is also submitted that through a
deliberate act there was a malicious intention to outrage the religious feelings and
sentiments of the followers of Gyan Baba Ji and hence the conviction under section
295A of the IPC should be granted. Facts established must rule out any likelihood of
innocence of the accused. 44

C. ACCUSED NO. 2 ALSO LIABLE TO BE BOOKED UNDER SECTION 292, 295A


AND 354C OF THE INDIAN PENAL CODE
i) Failure on the part of the website in taking proper action to prevent floating of obscene
material over the internet
34. It is submitted that Accused No.2 is also liable to be booked under section 292 and
295A of the IPC. The failure to have adequate filter in a system which is entirely
automated entails serious consequences and a website cannot escape such legal
consequences.45
35. Prima facie it appears that the listing itself answered the definition of obscenity since
it contained words or writing that appealed "to the prurient interest" or if taken as a
44 A.jayaram v state of Andhra Pradesh, by CBI, AIR 1995 SC 2128 at 2138, 2139.
45 Avnish Bajaj v. State, (2005) 3 CompLJ 364 Del, 116 (2005) DLT 427, 2005 (79) DRJ 576

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
whole was "such as to tend to deprave or corrupt person, who are likely to read, see or
hear the matter contained or embodied in it." The listing contained explicit words that
left a person in no doubt that what was sought to be sold was lascivious. The words
"This video is of a girl of DPS RK PURAM which has been filmed by his boyfriend
in very sexual explicit conditions" are a prominent feature of the listing which invited
a potential buyer to purchase the obscene object which was the video clip by
projecting it as child pornography since the reference is to school children.
36. Given the nature of the offence and the 'strict liability' envisaged by Section 292 (1)
IPC, even if for some reason the filters fail, the presumption that the owner of the
website had the knowledge that the product being offered for sale was obscene would
get attracted. It was then sought to be argued that even illegal omissions i.e. the failure
to do an act would attract Section 292 IPC. Sections 32 and 35 IPC were referred to
for this purpose.46
37. It is respectfully contended herein that in the present matter, such transfer of obscene
material on the part of Accused No. 1 is punishable in nature and the lack of
exercising due diligence on the part of Accused No. 2 Farhan Quereshi, holding a
position of trust and responsibility within a company exposes him to charges against
him under section 292, 295A and 354C of the Indian Penal Code, 1860. The
prosecution humbly requests this court to frame such charges against Accused No. 2
and hold him guilty of the same, thereby convicting Accused No. 2 under the said
charges.

46 Ambika Prasad v. Emperor, 139 Ind Cas 106; Anna vs. State of Hyderabad, AIR 1956 Hyd. 99

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
WHETHER THE OFFENCES UNDER SECTION 67 AND SECTION 67A OF THE
INFORMATION TECHNOLOGY ACT, 2000 ARE MADE OUT AGAINST BOTH
ACCUSED PERSONS AND FARHAN QUERESHI IS ALSO ADDITIONALLY LIABLE
UNDER SECTION 85 OF THE INFORMATION TECHNOLOGY ACT, 2000?
The present issue arises before this Honble Court as the State herein referred to as the
Prosecution charges against Pia Tandon herein referred as (Accused No.1) for offences
committed under Section 67A, 67 of the Information Technology Act, 2000 and also against
Farhan Quereshi herein referred as (Accused No.2) for offences committed under Section 67A,
67, 85 of the Information Technology Act, 2000.
A. CHARGES AGAINST ACCUSED NO. 1 PIA TANDON FOR UPLOADING THE
PRIVATE VIDEO
i) Process/ Instrument adopted for collecting and uploading the video by Accused No. 1
38. It is humbly submitted that the Accused No.1 Pia Tandon has been charged under
section 67A and section 67 of the Information Technology Act 2000. It is submitted
that a spy camera had been installed in the office of her husband by the said Accused
which had recorded the clipping of deceased and her husband indulging/engaging in
sexual intercourse and further the clipping of the video was uploaded on the website
www.sell-it.com through a computer resource located in Hi-Speed Cyber Caf. This
has further received corroboration from the statement given by P.W. 3 Mr. Rajesh
Sherwal47, who is the owner of the Hi-Speed cyber caf, wherein he has clearly
admitted and identified the accused, and further stated that she was a frequent and
habitual visitor of the caf and was seen in the caf in the week preceding the death of
the deceased and the Prosecution Witness has clearly stated that the accused had a
unique style of talking, which makes him remember her face. It has been further
disclosed in his testimony that the accused has visited his caf recently and has also
identified the accused by photograph which was shown to him by the police. Thus, a
reasonable inference can be drawn that the accused visited the caf, so that she could
upload the video without being detected and her presence at the caf is well
established.

ii)

Identification of Accused No. 1

47 Statement of P.W. 3 Rajesh Sherwal, Page 8 Trial Proposition

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
39. It has been laid down by the apex court that the identity and presence of an accused can
be well established by photographs. But the Court must be satisfied that no trick has
been used in taking the photographs.48It has been held by the Honble Apex Court that
identification of a known person by voice and gait is reliable.49Furthermore, in the
circumstances of the case, identification of the accused by voice was held sufficient for
conviction.50
40. It is further submitted that on investigation which has been done by P.W. 5 Shamsher
Singh I.O. with the help of reliable sources, it was confirmed in the reports that the
video was uploaded from Hi-Speed Cyber Caf which belonged to P.W.3 and the
presence of the accused without proper justification further make it clear that the
accused has uploaded the video. Furthermore, on the inspection of the cyber cafe it was
found that computer number eleven had the digital fingerprint of the video which
thereby confirmed that the upload was made from Hi-Speed Cyber Caf.51
iii) Corroboration of the statements of P.W. 3 and P.W. 5 and charges applicable
41. Thus, it has been clearly established in the statements of P.W.3 and P.W.5 that the said
private video was uploaded by Accused No.1 on the website from the Hi-Speed Cyber
Caf and therefore she is liable to be booked under section 67 and section 67A of the IT
Act, 2000.Section 67 of the IT Act 2000 is reproduced as follows:
Whoever publishes or transmits or causes to be published in the electronic form, any
material which is lascivious or appeals to the prurient interest or if its effect is such as
to tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it, shall be
punished on first conviction with imprisonment of either description for a term which
may extend to five years and with fine which may extend to one lakh rupees and in the
event of second or subsequent conviction with imprisonment of either description for a
term which may extend to ten years and also with fine which may extend to two lakh
rupees.

48Laxmipal v. State of Maharashtra, 1968 CrLJ 622 ( Cal ) ( DB)


49Kirpal Singh v. State of Punjab, AIR 1965 SC 712
50Saindudden v. State of Kerala, 1992 CrLJ 1644 ( Ker) (DB)
51 Statement of P.W. 5 Shamsher Singh, Page 11-12 Trial Proposition

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION

iv) Interpretation of law


42. This section clearly makes the publication of any obscene or pornographic information
either in the form of text or image punishable one. However determination of which
material is lascivious, appeals to prurient interest, to deprave and corrupt persons is
moot point. In most of the cases, these issues depend on social mores and widely
different from country to country. For instance in early part of 20th century, it was held
by the courts in England, UK that D.H. Lawrences Lady Chatterleys Lover offended
Christian morality and banned the book while it was not so in some other countries.
43. The important ingredients of an offence under Section 67 are:
(a) Publishing, or transmission in the electronic form
(b) Any material lascivious or appeals to the prurient interest
(c) Tendency to deprave and corrupt person
(d) likely-audience
(e) To read, see or hear the matter contained or embodied in electronic form
44. It is submitted that in the present matter it was Accused No.1 who has caused to be
published the video which had the clipping of the deceased and Mr. Suhas Tandon
engaging in sexual intercourse via High-Speed Cyber Caf and hence the charges of
Section 67 and 67A are sustainable against Accused No.1. Obscenity has been defined
by the Supreme Court in various cases52. Further in this case the Court used the Miller
Test to apply to online sexually explicit material. Based on those cases the Supreme
Court fashioned a three prong test to define obscenity:
1. Would the average person, applying contemporary community standards find that
the work, taken as a whole, appeals to prurient interest?
2. Does the work describe or depict, in a patently offensive way, sexual conduct that
is specifically defined by applicable state law?
3. Does the work taken as a whole lack serious literary, artistic, political or scientific
value?53

B. CHARGES AGAINST ACCUSED NO. 2 FARHAN QUERESHI


i) Website utilized for the purpose of distribution of video uploaded by Accused No. 1
52 Miller v. California, 413 U.S. 15,27 ( 1973 ); Hamling v. United States, 418 u.s.87,101 ( 1974 )
53 United States v. Thomas, 74 F.3d 701 ( 6th Cir.1996)

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
45. It is further submitted that the video of the deceased and Mr. Suhas Tandon was
uploaded on the website of Accused No.2 who is the C.E.O. of Buy It Sell It and Co.
It is submitted that this version corroborates with the statement of Accused No.2 who
admits of the video being uploaded from their website.54 It is held in that when the
transmission is undertaken by software which is in possession of and under the overall
control of the intermediary, then he is responsible for the transmission.55 It is further
submitted on behalf of P.W.1 the informant in the present matter that the company
which was running the website did not take adequate safety measures or necessary
precautions otherwise such a video would never have been uploaded in the first
place.56 Merely that the prosecution witness was the brother of the deceased could be
no reason for disbelieving him. Being such a close relation, he would have no reason
for leaving out the real assailant of his brother and implicating the accused falsely.
Moreover where there was not even a suggestion, that he has any enmity or other
reason to falsely implicate the accused his statement could not be viewed with
suspicion merely because of his relationship with the deceased.57 In the instant case,
the conduct of the appellant is a valuable link in the case of caution.58
46. It is further submitted that there was gross failure on the part of the website which
reacted in a slow manner and took around 3 hours to take down the video which
should not have been uploaded in the first place and even after it was uploaded, could
have been removed within a time span of 30 minutes. The Accused No. 2 took the
defense of the video having an unusual name which enabled it to evade all the filter
mechanism and hence easily been uploaded. The two step sign up procedure and no
other proof required in establishing identity on the website before uploading the video
is clearly suggestive of the gross negligence on behalf of the Accused No.2 and his
company and hence he on behalf of his company shall be liable to be booked under
section 67,67A and section 85 of the IT Act 2000.
47. Section 85 of the Information Technology Act, 2000 is reproduced as follows:
54 Statement of D.W. 2 Farhan Quereshi, Page 14 Trial Proposition
55 Godfry v. Denon, (1999) 4 Al ER 342 (HC)
56 Statement of P.W. 1 Nitin Rastogi, Page 6 Trial Proposition
57 State of Punjab v. Ramji Das, AIR 1977 SC 1085, (1977) 4 SCC 597 (2)
58 Naseem Ahmed v. Dekhi administration, AIR 1974 SC 691

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
Offences by companies: - (1) Where a person committing in contravention of any the
provision of this Act or of any rule, direction or order made there under is a company,
every person who, at the time the contravention was committed was in charge of, and
was responsible to, the company for the conduct of business of the company, as well
as the company, shall be guilty of the contravention and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable
to punishment if he proves that the contravention took place without his knowledge or
that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub section (1), where a contravention of
any of the provisions of this act or of any rule, direction or order made there under has
been committed by a company and it is proved that the contravention has taken place
with the consent or connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officer shall also be deemed guilty of the
contravention and shall also be liable to be proceeded against and punished
accordingly.
ii)Interpretation of the law
48. Under this section, where an offence is said to have been committed by a company,
every person who is in charge of and responsible to the company for the conduct of
the business of the company shall also be guilty of an offence along with the
Company. Thus Accused No.2 is to be held guilty as booked under section 67A, 67 &
85 of the IT Act 2000.For the offence under Section 67 IT Act, it is not necessary that
the company BIPL itself should be an accused. As explained in the judgments of the
Supreme Court, what is relevant is whether at the trial a case for convicting the
company for the offences had been made out. The present stage was premature to
come to a conclusion either way. Even at a subsequent stage in the proceedings, the
court can summon the company if sufficient material emerges against it. Therefore, it
cannot be said that baazee.com in this case did not even prima facie "cause" the
publication of the obscene material. The ultimate transmission of the video clip might
be through the seller to the buyer but in a fully automated system that limb of the
transaction cannot take place unless all the previous steps of registration with the
website and making payment take place. It is a continuous chain. When five to six
links of the chain are under the direct control of the website and it is only on
completion of each step that the final two steps which result in the actual publication

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of the obscene material ensue, it cannot be said that the website did not even prima
facie cause publication of the obscene material. It was then submitted by the State, on
the strength of the decision of the Supreme Court, that at a later point in time, even
before passing an order on charge, the trial court can summon the company as an
accused. Even if this were to happen, that still does not obviate the requirement in law
for the prosecution to show that a prima facie case has been made out against the
petitioner in his individual capacity for the IPC offence.59
49. It is further sought to be argued that the charge sheet cannot be complete or accurate
thesis of the prosecution case. Reliance is placed on the decision of the Supreme Court
in which it is submitted that "it is wrong to say that the petitioner was charge sheeted
and cognizance was taken simply owing to his designation. The offence by the
petitioner has been committed by him individually though acting in his capacity as the
Managing Director of the company.60 Reliance has been placed by the prosecution on
this judgment to contend that the liability for the IPC offences, where the company is
the main accused would also be attached to the directors.61
iii) Failure to monitor material for obscene matter
50. Thereafter, in light of the law explained in the decisions of the Supreme Court after
C.V. Parekh, it appears that without the company being made an accused, its directors
can be proceeded against under Section 67 read with Section 85 IT Act. There is
another factor which weighs with this Court. At the present stage, it is too early to
conclude that the company will never be made an accused. It is possible, following the
dictum in SWIL that the trial court may at any stage hereafter summon the company to
face trial for the offence under Section 67 IT Act. In SWIL the Supreme Court relied
on the earlier decision in this case and held:
in the United States, there have been three legislations that have dealt with
censorship of pornographic material on the internet: the Communications Decency
Act (CDA), which was enacted as a part of the Telecommunications Act of 1996, the
Child Online Protection Act 1998 (COPA) and the Children Internet Protection Act
59SWIL Ltd. v. State of Delhi, SLP (crl.) 620 of 2001
60 R.K. Dalmia v. Delhi Administration, 1962 AIR 1821, 1963 SCR (1) 253
61 Keshub Mahindra v. State of Madhya Pradesh, II(1996)ACC292, 1996VIAD(SC)657,
1996(2)ALD(Cri)662, 1996(3)Crimes288(SC), 1996()JLJ702(SC), JT1996(8)SC136,
1996(6)SCALE522, (1996)6SCC129, [1996]Supp6SCR285; Sushil Ansal v. State, 2002 Crl LJ 1369

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2003 (CIPA). The CDA sought to prohibit the use of an interactive computer service
to send or display in any manner to those under the age of 18, any communication that
depicts or displays sexual or excretory activities in a manner that is patently offensive.
This was which was however struck down as unconstitutional by the U.S. Supreme
Court.62 The COPA narrowed the range of the material prohibited but was also held to
be unconstitutional. The CIPA, which casts a duty on public libraries and schools to
install software to block obscene or pornographic images, was upheld as
constitutionally valid by the U.S. Supreme Court.63 There are nevertheless serious
concerns expressed about the effectiveness of such laws and the challenges that exist
in enforcing prohibition of child pornography on the internet.64 In the United
Kingdom, the Obscene Publications Act, 1959 was amended by the Criminal Justice
and Public Order Act of 1994 (CJPOA) to deal with the specific problem of internet
pornography by extending the Act to cover the transmission of electronically stored
data. It makes service providers liable for material placed on the internet by a third
party thus requiring them to monitor material for obscene matter. Further the
Protection of Children Act, 1978 was amended by CJPOA, 1994 to include
photographs in electronic data format. India may want to develop a different
legislative model to regulate the use of the internet with a view to prohibiting its use
for disseminating child pornographic materials.65
51. The prosecution humbly submits in this regard that since all charges have been
established by the prosecution beyond reasonable doubt therefore, it would request
this Honble Sessions Court to exercise its powers judiciously and hold the Accused
persons i.e. Accused No. 1 Pia Tandon and Accused No. 2 Farhan Quereshi guilty of
the abovementioned charges respectively and in furtherance of the same provide for
maximum punishments for such offences so as to ensure that such grave offences are
not committed in the coming future by setting a strong precedent in the eyes of law.

62 Reno v. ACLU, 521 U.S. 844 (1997)


63 United States v. American Library Association, 539 U.S. 194 (2003)
64 See Heidi Wachs, "Permissive Pornography: the Selective Censorship of the Internet under CIPA",
11 Cardozo Women's L.J. 441
65 Raghubans Dubey v. State of Bihar, 1967 AIR 1167, 1967 SCR (2) 423 (SCC, p. 689)

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PRAYER

It is humbly prayed in the light of the above facts of the case, statues referred, authorities
cited and arguments advanced, this Honble Court may graciously pleased to:
i.

Hold the Accused persons guilty and convict them under Section 292 (Sale,
etc. of obscene books, etc.) and Section 295A (Deliberate and Malicious acts
intended to outrage religious feelings) of the Indian Penal Code, 1860.

ii.

Hold Accused No. 1 guilty and convict her under Section 302 (Murder) of
the Indian Penal Code, 1860.

iii.

Hold Accused No. 2 guilty and convict him under Section 354C (Voyeurism)
of the Indian Penal Code, 1860.

iv.

Hold the Accused persons guilty and convict them under Section 67
(Publishing or transmitting obscene material in electronic form) and Section
67A (Publishing or transmitting sexually explicit content over electronic
form) of the Information Technology Act, 2000.

v.

Hold Accused No. 2 guilty and convict them under Section 85 (Offence by
Companies) of the Information Technology Act, 2000.

vi.

May pass any order or directions or judgments this Honble Court may
deem fit and proper in the facts of the present case and in the interest of
justice.

DATED:
AT CHANDIGARH (UNION TERRITORY)

FILED BY:

MEMORIAL FOR THE PROSECUTION

SUBSTANTIVE SECTION
PROSECUTOR(S) FOR THE PROSECUTION