Memorial For Prosecution TC3

TEAM CODE: TC 3
2ND U.I.L.S. NATIONAL TRIAL ADVOCACY, 2016
IN THE COURT OF THE SESSIONS JUDGE, CHANDIGARH
CASE NO. - _________/2016
THE STATE (UNION TERRITORY OF CHANDIGARH)
(PROSECUTION)
V.
1. PIA TANDON
2. FARHAN QURESHI
(DEFENCE)
MEMORIAL ON BEHALF OF THE PROSECUTION
TABLE OF CONTENTS
TABLE OF CONTENTS
INDEX OF AUTHORITIES
i- v
LIST OF ABBREVIATIONS
TABLE OF STATUTES
TABLE OF BOOKS
DICTIONARIES
TABLE OF CASES
STATEMENT OF JURISDICTION
vi
STATEMENT OF FACTS
vii
STATEMENT OF CHARGES
viii
SUMMARY OF ARGUMENTS
ix- x
ARGUMENTS ADVANCED
CONTENTION I: THAT THE ACCUSED 1 IS GUILTY OF MURDER UNDER SECTION

302 OF THE INDIAN PENAL CODE, 1860.
CONTENTION II: THAT THE ACCUSED PERSONS ARE GUILTY OF OFFENCES UNDER
THE INFORMATION AND TECHNOLOGY ACT, 2000 AND SECTION 292 OF THE
INDIAN PENAL. CODE, 1860
CONTENTION III: THAT THE ACCUSED PERSONS ARE LIABLE UNDER SECTION
295A OF THE INDIAN PENAL CODE, 1860
xi
PRAYER
LIST OF ABBREVIATIONS
&
And
AIR
All India Reporter
Anr.
Another
Cr. P.C.
Code of Criminal Procedure
Cri. LJ
Criminal Law Journal
Ed.
Edition
HC
High Court
Honble
Honorable
IPC
Indian Penal Code
IO
Investigation Officer
IT Act
Information Technology Act, 2000
Ltd.
Limited
No.
Number
Ors.
Others
Pg
Page
SC
Supreme Court
SCC
Supreme Court Cases
u/s
Under Section
UOI
Union of India
v.
Versus
Vol.
Volume
TABLE OF STATUTES
The Criminal Procedure Code, 1973 (Act 2 of 1974)
The Indian Evidence Act, 1872 (Act 1 of 1872)
The Indian Penal Code, 1860 (Act 45 of 1860)
Information Technology Act, 2000

i
TABLE OF BOOKS
Cases and Materials on Evidence Law, Mukund Sarda, Thomson Reuters
Civil & Criminal Practice Manual, Eastern Book Company, 1st Ed. 2008
Criminal Law and Practice, D.R. Prem, 9th Edition, Vol. I-X, 2014
K Mathiharan and Amrit K Patnaik, Modis Medical Jurisprudence and Toxicology , Lexis
Nexis Butterworths, 23rd Ed. 2005
Modis Medical Jurisprudence and Toxicology, 24th Ed.
N.D Basu, Indian Penal Code, (edited by A.N. Saha), 8th Ed. 1998
R.V Kelkar, Criminal Procedure, Pillai Eastern Book Company, 4th Ed. 2007 (Revised by Dr.
K. N Chandrasekharan)
Ratanlal & Dhirajlal, The Code of Criminal Procedure, Wadhwa & Company Nagpur, 17th
Ed. 2007 (Y V Chandrachud J. & V R Manohar J.)
Ratanlal & Dhirajlal, The Code of Criminal Procedure, Wadhwa & Co., Nagpur, 19th Ed.
2011
Ratanlal & Dhirajlal, The Indian Penal Code, Wadhwa & Company Nagpur, 30th Ed. 2008
(Y V Chandrachud J. & V R Manohar J.)
Ratanlal & Dhirajlal, The Law of Evidence, Wadhwa& Company Nagpur, 19th Ed. 1999 (Y
V Chandrachud J. & V R Manohar J.)
Ratanlal Dhirajlal, Indian Penal Code,Wadhwa& Company Nagpur, 34th Ed., 2014 (Y V
Chandrachud J. & V R Manohar J.)
Rodney D. Ryder, Guide to Cyber Laws, 2nd Ed. 2005
S.P. Tyagi, Criminal Trial, Vinod Publications (P) Ltd., 3rd Ed.
Sir John Woodroffe & Syed Amir Ali, Law of Evidence, Butterworths, 17th Ed. Vol II S V
Joga Rao
Supreme Court on Criminal Procedure Code & Criminal Trial, Eastern Book Company,
Vol.1 & 2, 2011
Wills Circumstantial Evidence, 7th Ed.
DICTIONARIES
Blacks Law Dictionary, 10th Ed., 2014
Oxford English Dictionary, 2nd Ed. 1989

ii
Wharton's Law Lexicon, 14th Ed.

Concise Law Dictionary, 1997
TABLE OF CASES
Amitava Banerjee v. State of West Bengal, AIR 2011 2913
Babu Ram & Ors. v. State of Punjab, (2008) 3 SCC 709
Bas Dev v. State of Pepsu, 1956 SCR 363
Bhagat Ram v. State Of Punjab, AIR 1954 SC 621
Bhagwan Das v. State(NCT of Delhi), AIR 2011 SC 1863
Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283
Binay Kumar Singh v. State of Bihar, 1997 CrLJ 362
Birendra Poddar v. State of Bihar, AIR 2011 SC 2336
Chandrika Prasad Singh and Ors. vs. The State of Bihar, AIR 1972 SC 109
Chandu and Ors. v. Emperor, AIR 1928 Lah 657
Dayanam and Anr v. State, (1986) 3 Crimes 446, 451(All)
Debiprasad Padhi and another v. State, 1984 Cr.LJ 2214 (Ors.)
Dharyashil alias Pampi Mahadev Rao v. State of Maharashtra, 2003 CrLJ 317 (Bom)
Dilwar v. Emperor, AIR 1936 Lah 233
Director of Enforcement v. M. C. T. M. Corporation Private Limited and Others, AIR 1966

SC 1100
Dudh Nath Pandey v. State of Uttar Pradesh, AIR 1981 SC 911
Duraipandil v. State of Tamil Nadu,(1973)AIR659(SC)
Govinda Reddy and Krishna and Anr. vs. State of Mysore, AIR 1960 SC 29
Hanumant Govind v. State of Madhya Pradesh , 1953 CrLJ 129
Hari Chand and Another v. State of Delhi, AIR 1996 SC 1477
Hari Chand v. State of Delhi, 1996 SCC (Cri) 950
Hazrat Gul Khan v. Emperor, 29 CrLJ 546
Hemram Saikia v. Laboram Saikia, (1981) 1 Crimes 319 (Gau)
Lakshmi Singh v. State of Bihar, 1976 SC 2263
Manjit Singh v. CBI, AIR 2011 SC 2769

iii
Mohd. Asif v. State(NCT of Delhi), 2011 (3) Crimes 228 (SC)
Narendra Singh v. State of M.P, AIR 2004 SC 3249
Narendra Nama Das v. State of Tripura, 2009 (1) GLR 856
Om Prakash v. State of Haryana, 1999(3) SCC 19
Pannayar v. State of Tamil Nadu by Inspector of Police, 2009 (9) SCC 152.
R. Balakrishna Pillai v. State of Kerela, (2003) 9 SCC 700
R.Muthukrishnan v. Agricultural Officer, Lalgudi, 1999 CrLJ 1252 (Mad.).
Rafiq Ahmed v. State of U.P, (2011) 8 SCC 300
Rajinder v. State of Haryana, 2006 CrLJ 2926 (SC)
Ram Bharosey v. State, 1954 SC 704
Ramanand & Ors. v. State of Himachal Pradesh, (1981) 1 SCC 511
Ranganayaki v. State, AIR 2005 SC 418
Reg v. Govinda, (1877), ILR 1 Bom 342
Reg v. Monk House, (1849) 4 Cox CC 55
Rishipal v. State of Uttarakhand, 2013 CrLJ 1534(SC)
Sanatan Naskar v. State of West Bengal, AIR 2010 SC 1570
Sarabjeet Singh v. State of U.P, (1984) 1 SCC 673
Sarat Chandra Dhupi v. Emperor ,AIR 1934 Cal 719
Sardul Singh & Jagtar Singh v. State of Haryana, AIR 2002 SC 3462
Satish Nirankari v. State of Rajasthan, 2007 CrLJ 2983(Raj.)
Sheo Govind Bin v. State of Bihar, 1985 BBCJ 632
SK Yusuf v. State of West Bengal, AIR 2011 SC 2283
Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 Cr LJ 822, (1983) 1 Crimes 625
State (Delhi Administration) v. Gulzarilal, AIR 1979 SC 1383
State of Kerela v. Anil Chandran, AIR 2009 SC 1866
State of Kerela v. Bahuleyan, 1986 SCC (Cr) 361
State of Madhya Pradesh v. Murat Singh Har Parshad And Ors., (1971) Cri LJ. 1804
State of Maharashtra v. Goraksha Ambaji, AIR 2011 SC 2689
State of Maharashtra v. Narsingrao Gangaram Pimple, AIR 1984 SC 63

iv
State v. Harbans Lal, 1975 Cr LJ 1705
Subash Maruti Avasare v. State of Maharashtra, 2006 (10) SCALE 357
Sudam v. State of Maharashta, (2011) 7 SCC 125
Sukh Ram v. State of Maharashtra, 2007 (7) SCC 502
Sunil Clifford Daniel (Dr.) v. State of Punjab, 2012 (8) SCALE 670
Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420
Surjit Singh alias Gurmit Singh v. State of Punjab , AIR 1992 SC 1389
The Public Prosecutor v. Chidambaram and Anr, AIR 1928 Mad 791
Vijay Kumar Arora v. State(NCT of Delhi), (2012) 2 SCC 353

v
THE COUNSELS
FOR THE
PROSECUTION
HAVE APPROACHED THIS
HONBLE COURT
UNDER THE
FOLLOWING PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE, 1973:
SECTION 177: ORDINARY PLACE OF INQUIRY AND TRIAL.

EVERY
OFFENCE SHALL ORDINARILY BE INQUIRED INLAND 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

BROUGHT BEFORE THE
IS
MAGISTRATE AND IT APPEARS TO THE MAGISTRATE THAT THE OFFENCE IS
TRIABLE EXCLUSIVELY BY THE COURT OF SESSION, HE SHALL-
(A) COMMIT,
AFTER COMPLYING WITH THE PROVISIONS OF SECTION
CASE MAY BE, THE CASE TO THE
CODE
COURT
OF
SESSION,
207
OR SECTION
208,
AS THE
AND SUBJECT TO THE PROVISIONS OF THIS
RELATING TO BAIL, REMAND THE ACCUSED TO CUSTODY UNTIL SUCH COMMITMENT HAS
BEEN MADE;]
(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
SESSION.

vi
COURT
OF
STATEMENT OF FACTS
STATEMENT OF FACTS
Mrs. Pia Tandon (Hereinafter referred to as Accused (1)) was in a marital relationship with Mr.
Suhas Tandon. Their relational has been strained as Mr. Suhas Tandon had an illicit relationship
with her secretary Ms. Mona Rastogi (Hereinafter referred to as the Deceased). Accused (1) had
installed a spy camera in her husbands office, which she claimed had malfunctioned. A video of
Mr. Tandon and the Deceased committing an illicit act with a picture of Gyan Baba Ji in the
background was uploaded on www.sell-it.com (Hereinafter referred to as The website),
owned and controlled by Buy It Sell It And Co. (Hereinafter referred to as the company). The
video was titled Babaji blesses happy office couple.
On the matter being reported to the company running the website, the video in question was
removed within three hours. However, the same had already been uploaded to other
pornographic websites by then. The deceased was subjected to ignominy and threats on social
networking by followers of Gyan Baba Ji and humiliation at work place which eventually led her
to quit her job. On 14th March 2016, at around 8:00 pm a phone call was received by the control
room of Sector 20 Police Station, a police officer namely Shamsher Singh (Hereinafter referred
as I.O) was dispatched to investigate House Number 5002, Sector 21-E, Chandigarh.
On reaching the site at 8:15, black paint on the outer walls, signs of stone pelting on the front
door and a broken window in the back of the house was observed. On entering the house with a
Pancha, they deceased was found hanging from the ceiling of her room, and also elements of foul
play was observed. Later, on 15th March, the I.O reached the residence of Mr and Mrs. Tandon.
Mr Tandon was in shock and disbelief on hearing about the deceased. The accused on the other
hand was very confident and indifferent when she was questioned by the I.O, she was walking
with difficulty, favouring her right leg and she also a bandage on the right hand. The same day
the post mortem report was issued and due to the nature of the injuries present on the deceased,
foul play was certain. After the refusal of the accused to give her blood samples for DNA testing,
a lady police constable was called for her immediate arrest.
An ethical hacker was approached by I.O, the hacker traced the digital fingerprints of the video
and located it back to computer number eleven in Hi-Speed Cyber Caf. Due to the peaked
interests of the media, the CEO of the company was also charged under the IPC and IT Act.
vii
Mrs. Pia Tandon is charged under the sections 302, 292 and 295A of the Indian Penal Code,
1860 for the crime of murder, publication of obscene material and outraging religious sentiments
along with sections 67 & 67A of the Information Technology Act, 2000.
Mr. Farhan Qureshi is charged under the section 354C, 292 and 295A of the Indian Penal Code
for the crime of Voyeurism, publication of obscene material and outraging religious sentiments
along with sections 67,67A and 85of the Information Technology Act, 2000.

viii
CONTENTION I: THAT THE ACCUSED 1 IS GUILTY OF MURDER UNDER SECTION 302 OF

THE INDIAN PENAL CODE, 1860.
That Accused (1) had necessary mens rea to commit murder of the deceased, as the accused had
the requisite motive to hurt the deceased. In addition to that it is noteworthy that the accused
attempted to establish a false alibi in order to thwart suspicion against her. However, the
circumstantial evidence creates a chain so unbroken that no hypothesis of innocence of the
accused can be drawn from the facts of the case. The documentary evidence coupled with the
medical evidence is corroborative evidence that shoulder the assertion made as per circumstantial
evidence against the accused and thus confirming her guilt beyond reasonable doubt.
CONTENTION II: THAT THE ACCUSED PERSONS ARE GUILTY UNDER THE INFORMATION
AND TECHNOLOGY ACT, 2000 AND SECTION 292 OF THE INDIAN PENAL. CODE, 1860 .
That Accused (1) is guilty of offence under section 67 and 67A IT Act, 2000 for recording and
uploading a video that involved a clandestine act and Accused (2), being the person in-charge of
the affairs of the But It Sell It & Co. that owned the website, sell-it.com, was responsible for its
policy and planning. It is hereby contended that he is guilty under section 292 & 295A IPC, 1860
and 67A, 67 & 85 of the IT Act, 2000. By means of the expertise of an ethical hacker, the
explicit video was tracked back to Hi-Speed Cyber Caf, whose owner even identified Accused
(1). It is further submitted that Accused (2) the owner of Buy It Sell It & Co., the company
controlling sellit.com and is responsible for hosting explicit content and not placing proper filters
as a result of which the video in question got published in the first place.

ix
CONTENTION III: THAT THE ACCUSED PERSONS ARE LIABLE UNDER SECTION 295A OF THE
INDIAN PENAL CODE, 1860.
That the acts of the Accused persons amount to an offence under Section 295A of the IPC as
they fulfill the essentials to attract the offence under the said provision. The acts of the accused
persons clearly amount to a gross outrage of the sentiments of the followers of Gyan Baba Ji and
being a video it is a visible representation thereby fulfilling the first two requisites. Further,
Accused (1) had motive to upload the video and deliberately placed a picture of Gyan Baba Ji in
the background as she knew it would affect her husband's business, Gyan Baba Ji being his
client. Accused (2) has failed to act diligently in the present case and his omission to be careful
has led to the publication of the explicit video in question and therefore, his acts amount to the
offence as defined under Section 295A, IPC.

x
ARGUMENTS ADVANCED
ARGUMENTS ADVANCED
CONTENTION I: THAT ACCUSED 1 IS GUILTY OF MURDER UNDER SECTION 302 OF THE
It is humbly submitted before this Honble court that in the scheme of the Indian Penal Code,
Culpable homicide is genus and murder its specie1. For the purpose of fixing punishment,
proportionate to the gravity of this generic offence, the code practically recognizes three degrees
of culpable homicide. The gravest form of culpable homicide is defined under section 300 as
Murder2. The essentials of murder envisage that a person is guilty of murder if he intentionally
causes the death of a person or causes such bodily injury as he knows, is likely to cause death of
that person or cause such bodily injury, which in the ordinary course of nature results into death
or commits an act so dangerous that it must, in all probability cause death of that person3.
One of the fundamental principles of criminal law is reflected in the well-known maxim Actus
non facitreum nisi mens sit rea4.It is settled law that in order to constitute a crime both actus
reus and mens rea must be established5. The general principle of criminal jurisprudence is that
element of mens rea and intention must accompany the culpable act or conduct of the Accused
(1)6.The actus reus is the action causing the effect on the mind of the victim, Mens rea is the
intention to cause that effect7. It is humbly submitted that in the present case, Pia Tandon
(hereinafter referred to as Accused (1)) had committed an act (1.1) with the intention(1.2) to
murder Ms. Mona Rastogi (hereinafter referred to as Deceased).
[1.1] THAT THE ACTS OF THE ACCUSED (1) CONSTITUTE MURDER (ACTUS REUS)
It is humbly averred before this Honble court that actus reus can be inferred and proved from
the [A] Circumstantial Evidence collected at the scene of crime, the [B] Documentary
Evidence and the[C] Medical Evidence.
Reg v. Govinda, (1876) 1 Bom 342; Rajinder v. State of Haryana, 2006 CrLJ 2926 (SC).
RatanlalDhirajlal, Indian Penal Code, 34th Ed. 2014 at 504.
3
Section 300, IPC, 1860 ;Virsa Singh v. State of Punjab, AIR 1958 SC 465.
4
Directorate of Enforcement v M. C. T. M. Corporation Private Limited and Others, AIR 1966 SC 1100.
5
State of Madhya Pradesh v. Murat Singh HarParshad And Ors.,1971 Cri LJ. 1804 (SC).
6
R.BalakrishnaPillai v. State of Kerela, (2003) 9 SCC 700.
7
HemramSaikia v. LaboramSaikia, 1981 1 Crimes 319 (Gau).
2

1
ARGUMENTS ADVANCED
[A] Circumstantial Evidence

It is humbly submitted that in Charges of murder where there is no direct evidence, the
prosecution can rely upon circumstantial evidence8. As to the quantum of circumstantial
evidence, it can be sufficient basis for conviction9. However, there must be a chain of events so
complete as to not leave any reasonable ground for a conclusion consistent with the innocence of
the Accused (1)10. It must be such as to show that within all human probability the act must have
been done by the Accused (1)11. Circumstantial evidence is the evidence which is derived from
circumstances distinguished from direct and positive proof. It is the inference of a fact from other
facts proven, and the facts thus inferred and assented to by the mind is said to be presumed; that
is to say, it is taken for granted until the contrary is proved12
It is reverently pleaded before the Honble court the chain of events that took place at the scene
of crime:1. Presence of Accused(1) at crime scene: According to the testimony of the Investigation
Officer(hereinafter referred to as I.O.), a brown strand of long hair was found at the scene of
crime. Since, the deceased had short black hair, the evidence could not related to her.
Moreover, on conducting further evidence, the I.O on further investigation discovered that the
Accused (1) too had brown hair. This being a material fact, sets in motion culpability for the
offence towards the Accused (1).
2. A Broken window Sized 4x2.5ft at the back of the house was found broken, suggesting an
inference that someone had broken into the house. The inference of guilt of an Accused (1)
person is to be drawn from the circumstantial evidence only, which has been cogently
established13. The aforesaid circumstances prove pivotal for the prosecution case, as they
create a reasonable suspicion against the Accused (1). The episode wherein, the Accused
Dharyashil alias PampiMahadevrao v. State of Maharashtra, 2003 CrLJ 317 (Bom).

Ram Bharosey v. State, 1954 SC 704.
10
Govinda Reddy Krishna AIR 1960 SC 29.
11
HanumantGovind v. State of Madhya Pradesh , 1953 SC CrLJ 129; SK Yusuf v. State of West Bengal, AIR
2011 SC 2283; Amitava Banerjee v. State of West Bengal AIR 2011 2913; BirendraPoddar v. State of Bihar,
AIR 2011 SC 2336; Mohd. Asif v. State(NCT of Delhi), 2011 (3) Crimes 228 (SC); State of Maharashtra v.
GorakshaAmbaji, AIR 2011 SC 2689; Bhagwan Das v. State(NCT of Delhi), AIR 2011 SC 1863; Manjit Singh
v. CBI, AIR 2011 SC 2769; Sudam v. State of Maharashta, 2011 7 SCC 125.
12
Concise Law Dictionary (Abridged Edn.), Wadhwa and Co, Agra,1997.
13
Rama nand&Ors.v. State of Himachal Pradesh, (1981) 1 SCC 511.
9

2
ARGUMENTS ADVANCED
(1)denied blood and DNA sampling, on being requested by the I.O, creates a cloud of
suspicion. Therefore, in light of the conduct of the Accused (1), it would be fair to draw an
adverse inference against her, as may be permissible in accordance with law14.
3. Injuries of the Accused (1) It is pertinent to note that at the time of investigation, the
Accused (1) was noticed to be favouring her left leg and also had a bandage on her right hand
which showed bleeding from her palm. It becomes necessary to point out that the Accused (1)
was unable to elaborate as to how she contracted these injuries. In case there is a defence
version which explains the injuries on the defence of the Accused (1), it is rendered probable
so as to throw doubt at the prosecution case15.
4. Observations at Crime Scene: It was found that the deceased was hanging by the ceiling fan
through a nylon rope. A stool was toppled over the floor, an empty whiskey bottle broken on
the side and a broken whiskey glass. An empty leaflet of anti depressant Cipralex was also
found along with whiskey. A broken glass having stains of blood was also recovered.
The injuries of the Accused (1) collate with the evidence found at the scene of crime. A pivotal
inference that can be drawn from the injuries is that, there was fight or struggle between the
deceased and the Accused (1). Therefore, it is humbly submitted that the aforesaid circumstances
are the inflexible proofs16 of guilt of the Accused (1). Under the circumstances the cumulative
effect of evidence has negated the innocence of the Accused (1)17. In deciding the sufficiency of
the circumstantial evidence for the purpose of conviction, the court has to consider the total
cumulative effect of all the facts, each one of which reinforces the conclusion of guilt and if the
combined effect of all these facts taken together is conclusive in establishing the guilt of the
Accused (1), the conviction would be justified even though it may be that one or more of these
facts by itself or themselves is or are not decisive18.Weighing all the circumstances, particularly
about the mindset the Accused (1), her behaviour and the disturbed mental feeling can be
considered as mitigating circumstance19.
14
Rafiq Ahmed v. State of U.P, (2011) 8 SCC 300.

Babu Ram &Ors.v. State of Punjab (2008) 3 SCC 709; Lakshmi Singh v. State of Bihar, 1976 SC 2263.
16
Wills Circumstantial Evidence, 7th Ed. at.7; 11 CWN 1085.
17
Bhagat Ram vs State Of Punjab, AIR 1954 SC 621.
18
Vijay Kumar Arora v. State (NCT of Delhi), (2012) 2 SCC 353.
19
Om Prakash v. State of Haryana, (1999) 3 SCC 19.
15

3
ARGUMENTS ADVANCED
[B] Documentary Evidence

It is humbly contended before this Honble court that considering the statements made u/s 161 of
Code of Criminal Procedure, 1973 the Accused (1) does not state her whereabouts at the time of
occurrence of the crime. When the Accused (1) throws no light at all upon the facts which ought
to be especially within his knowledge and which could support any theory or hypothesis
compatible with his innocence, the court can also consider his failure to adduce an explanation in
consonance with the principle20. It is pertinent to note that the domestic help (Bahadur Ram) has
stated that the Accused (1) was not at home at the given time. Moreover, Suhas Tandon, in his
statement has stated that when he arrived home from office, Pia was not at home and that she
back at around 8 pm. Hence, it becomes a reasonable possibility that the Accused (1) was
present at the scene of crime and thus, committed the murder.
Statement of I.O -: It has been stated by him that at the time of investigation, the Accused(1)
was favouring her left leg, she also had a bandage on her right hand which showed bleeding from
her palm. Hence, in his eyes, she became a possible suspect. When asked by the I.O. about the
wounds, the Accused (1) fumbled and stated that she had received a cut while using a vegetable
knife. It is pertinent to note that the Accused (1) was unable to give reason as to why she was
limping. Thus, the circumstances create a reasonable inference with regards to the guilt of the
Accused (1). In a case of circumstantial evidence, an Accused (1) may be held guilty even where
the medical evidence does not support the prosecution case21.Therefore, these are reasonable
grounds to prima facie believe that it is the Accused (1) whos culpable for Deceaseds murder.
Reasonable grounds for believing means such grounds as are based on reason and logic. The
grounds should be such as may lead one to believe that the Accused (1) is guilty of such an
offence. It is not only the probability of the ground being creative of a belief which is
sufficient22.
[C]Medical and forensic evidence
The paramount concern for any court of law is to ascertain the truth. Medical evidence covers a
realm of scientific knowledge and thereby necessitates the courts understanding in a more
20
SatishNirankari v. State of Rajasthan, 2007 CrLJ 2983(Raj.).

SanatanNaskar v. State of West Bengal, AIR 2010 SC 1570.
22
State v. HarbansLal, 1975 Cr LJ 1705.
21

4
ARGUMENTS ADVANCED
comprehensive and holistic manner through medical evidence23. It is a settled principle of law that
the medical evidence adduced pivotal corroborative value24. In many cases the reliance on
medical evidence has provided the necessary validation of the prosecutions charges against
the Accused (1)25.The post-mortem report is an extremely relevant and important document, in
cases brought under Sec.302, of the Indian Penal Code;26 and the forensic report can also be
relied upon to prove facts.27
It is most humbly submitted that in the present case the findings of the Post-Mortem Report
provides the cause of death of the deceased to be asphyxiation which was caused due to the
congestion of the Esophagus Mucosa and Larynx.28. This ensues an inference that the death was
not a suicide. When the doubt is whether the death was by suicide or homicide, the nature of
injuries and doctors evidence as to whether such an injury could have been caused by the
deceased or inflicted by some other person, the doctors evidence could be crucial29a post
mortem report is undoubtedly a very important document, which not only aids the medical
officer in determining the nature of the injuries during their evidence in the trialk, but also helps
the court in appreciating the evidence in the case30.
It is noteworthy that an anti-depressant drug called Cipralex was found in the house, at the
scene of crime during investigation.31It was also observed by the Pancha (Mr. Himanshu Garg)
in his statement u/s 161 Code of Criminal Procedure,1973 that along with the anti-depressant, an
empty bottle of whiskey was also found. It has been mentioned in the post-mortem report that
Large dosage of serotonin reuptake inhibitor and that blood alcohol levels were elevated and
high quantity of alcohol was found in the liver. Through the circumstances it can be inferred
that the anti-depressant drug Cipralex mixed with alcohol could have caused drowsiness,
nausea and if taken in large amounts rendered the deceased unconscious or in a drowsy state.
23
Newyork: Harper & Brothers, 1930.

Duraipandilv.Stateof Tamil Nadu, AIR 1973 SC 659.
25
State (Delhi Administration) v. Gulzarilal, AIR 1979 SC 1383.
26
SheoGovind Bin v. State of Bihar, 1985 BBCJ 632.
27
NarendraNama Das v. State of Tripura, 2009 (1) GLR 856.
28
Case Details, Annexure 4 at pg19.
29
Chapter 7, Modis Medical Jurisprudence and Toxicology, 24th Ed. at 763.
30
Dayanam&Anr. v. State (1986) 3 Crimes 446, 451(All).
31
Case Details, Annexure2, Statement of Prosecution Witness, PW4 at pg9.
24

5
ARGUMENTS ADVANCED
It is humbly submitted that post mortem report further discloses Rigor Mortis was well marked
over the whole body. The tongue was within the oral cavity and deceased presented with oozing
from her mouth. This is a sure sign of hanging having taken place during life, as the secretion of
saliva being a vital function cannot occur after death32. Cyanosis was present in the finger nail
beds of hands and lips, which signify that Multiple crescent shaped abrasions, circular contusions
was present sub-mandibular region of the left side of the neck, ligature mark was oblique and V
shaped. Trauma and hemorrhage found on the left side of the cranium, multiple scars of
lacerations found on the wrists, contusions of irregular shape on the upper right arm above the
deltoid. An exhaustive examination of the scene of crime, ligature material, placement of ligature
mark over the neck and other associated findings go a long way in deciding the issue. With a
careful study of the ligature material, ligature mark, and their comparative study made it possible
to conclude positively that it was a case of strangulation fabricated as a hanging in this study33.
It is further asserted that the post mortem report clearly indicates the cause of death of the
deceased was asphyxiation which was caused by the Esophagus mucosa and the larynx being
congested which essentially led to the hemorrhaging over the laryngeal mucosa. Casper has
illustrated by experiments that a mark similar to the one when a person hangs himself is
observed when a person hanged alive can be produced if suspended within two hours or even
longer after period of death34.
It is humbly submitted that the crescent shaped marks found can be indicative of signs of
strangulation; these marks are produced when fingers are deeply pressed into the soft tissue of
the neck.35 In case of internal appearances of the deceased, it was observed that the larynx and
trachea are congested, and contains frothy mucus. 36 The situation and extent of bruised area
over neck will depend upon relative positions of victim and assailant, manner of grasping neck
and degree of pressure applied upon throat. This linear or crescent marks produced by the
32
Chapter 18, Modis Medical Jurisprudence and Toxicology, 23 th edition at 571.

Case of strangulation fabricated as hanging; Anil Aggarwal, Internet Journal of Forensic Medicine and
Toxicology, 2001, Vol 2.
34
Forensic Medicine, English translation, Vol. II at 173.
35
HA Shapiro et al, The Significance of Fingernail Abrasion and the Skin, JFM, 1962, 9 17.
36
FE Camps, The case of Emmet Dune, MJ(Camb) 1959 at 156
33

6
ARGUMENTS ADVANCED
fingernails are occasionally present, if the finger tips are pressed deeply in to the soft tissue of
neck37.
Homicidal strangulation is the commonest of the three forms. Usually, there is a single turn of
a ligature round the neck with one or more knots. In addition to the V shaped ligature marks,
there is a probability of a struggle, marks of violence on the other parts of the body. The
deceased must have been initially rendered helpless by being bound or rendered unconscious
by blows on the head or by intoxicating drugs, and then strangled by a small amount of
compression. It is pertinent to reiterate that the deceased had high blood alcohol levels,
therefore she made an easy target for her the attacker. Sometimes, a ligature is passed around
the neck and over the body, and then tied to the hands and feet to stimulate suicidal
strangulations. In such cases, a ligature is occasionally placed around the neck after throttling
to stimulate suicide, but on removal of ligature, finger marks on the throat accompanied by
injuries to the deeper structures will be visible, thus suggesting murder.
The hemorrhaging on the deceaseds head, the discovery of blood which did not belong to
deceased and hair which resembles that of the Accused (1) clubbed with the fact that the
Accused (1) has refused to give her blood for testing of her DNA. The value of medical
evidence is only corroborative. It proves that the injuries could have been caused in the manner
alleged38.
The cumulative effect of the medical evidence and documentary evidence coupled with the
circumstantial evidence points all fingers to the guilt of the Accused (1). The prosecution need
not arrive at conclusive proof. What is needed is a proof beyond reasonable doubt,39as has been
established in the case at hand.
[1.2] INTENTION TO COMMIT MURDER (MENS REA)
It is reverently pleaded before this Honble court that the Accused (1) very much had an
intention to commit the heinous crime of murder. In order to establish intention, it becomes
necessary to visit the [A] Motive behind the act and the fact that the Accused (1) raised a false
37
Sirohiwal B. L., Paliwal P. K., Bharat BhushanYadav D.R. A case of strangulation fabricated as hanging; Anil
Aggarwal,Journal of Forensic Medicine and Toxicology,2001,Vol 2.
38
SolankiChimanbhaiUkabhai v. State of Gujarat, AIR 1983 Cr LJ 822, (1983) 1 Crimes 625.
39
State of Kerela v. Bahuleyan, 1986 SCC (Cr) 361.

7
ARGUMENTS ADVANCED
[B] Plea of Alibi. The state of mind of the criminal is very relevant factor to determine the mens
rea or to disclose the intention of a criminal40. The idea is to plug up possible loopholes through
which offenders could to escape from the clutches of law41.
The inquiry as to intent is far less simple than that as to whether has been committed, because
you cannot look into a mans mind to see what was passing there at any given time 42. What he
intends can only be judged by what he says or does and if he says nothing then the act alone must
guide you to your decision43 .
[A]Motive
Motive is relevant and important on the question of intention44. It is the emotion which impels a
man to do a particular act45.The motive of the Accused (1) becomes apparent from the equation
with the deceased. The deceased was the secretary of the husband of the Accused (1), with whom
he had an illicit relationship. In such a case Jealousy becomes an implied factor. In her
statement u/s 161 of the criminal procedure code, 1973, the Accused (1) has admitted that even
though she was well aware of the illicit relationship, between her husband and the deceased, she
wanted to carry on with her marriage for the sake of her daughter. Therefore, it becomes
apparent from the situation that the Accused (1) looked at the deceased as a roadblock impeding
her way to a happy marriage. It is reverently pleaded before this Honble court that motive plays
an important role and can become a compelling force to commit a crime hence, it is a relevant
factor for which evidence may be adduced.46 From the circumstances that have played out in the
current case it is clear that the Accused (1) had a motive to commit the heinous crime. The
motive of Accused (1) seeking revenge on the deceased stands established. It also vitally
corroborates to the circumstantial evidence at the scene of crime, thus proving her guilt. The law
40
Sarabjeet Singh v. State of U.P, (1984) 1 SCC 673.

R.Muthukrishnan v. Agricultural Officer, Lalgudi, 1999 CrLJ 1252 (Mad.).
42
Reg v. Monk House, (1849) 4 Cox CC 55.
43
Bas Dev v. State of Pepsu, 1956 SCR 363.
44
Shabir Ahmad Khan v State of Jammu and Kashmir, 1989 CRLJ 2486 (J&K)
45
Ranganayaki v. State, AIR 2005 SC 418.
46
Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.
41

8
ARGUMENTS ADVANCED
is well settled, that motive assumes importance in cases that rest entirely on circumstantial
evidence47.
The Accused (1) already had a suspicion about the fact that her husband(Mr. Suhas Tandon) had
an illicit relationship. This made her so upset that she had to share it with her father. Later, on
finding about the relationship between the deceased and her husband, she threatened him with
grave consequences. Thus, the cumulative effect of the motive and circumstantial evidence
available reinforces the guilt of the Accused (1). In cases where there is a clear proof of motive
for the commission of the crime it affords added support to the finding that the Accused(1) was
guilty for the offence charged with48.
[C] Plea of Alibi
The Latin word alibi means elsewhere49. The term alibi is used to take recourse to a defence
line that when the occurrence took place he was so far away from that place that it was extremely
improbable that he would have participated in the crime50. Alibi is not an exception envisaged in
IPC or any other law. It is only a rule of evidence recognized in S.11 of the Indian Evidence Act,
187651. Alibi evidence should be scrutinized very carefully, it is easy to set up an alibi, though
difficult to prove it52 .
In the statement made by the Accused (1)s father (Aniruddh Sethi) u/s 161 of the code of
criminal procedure, 1973, he has stated that the Accused (1) was with him at his residence on
14th march 2016 and that she was there with him from 6 pm till 8 pm, for two hours. The curious
aspect that needs to be highlighted is that the Accused (1) at the time of her statement to the I.O
never said anything about being with her father. It has been held that an alibi receives most
credence if raised at the earliest possible moment.53 However, in the present scenario, the
Accused (1) does not state anything about being at a different place at the time of occurrence of
crime. Warning about such circumstances that may arise, the Supreme Court in similar set of
47
Rishipal v. State of Uttarakhand, 2013 CrLJ 1534(SC); Sukh Ram v. State of Maharashtra, (2007) 7 SCC 502;
Sunil Clifford Daniel (Dr.) v. State of Punjab, 2012 (8) SCALE 670; Pannayar v. State of Tamil Nadu by
Inspector of Police, (2009) 9 SCC 152.
48
Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.
49
303 US 642 : 82 Led 1102.
50
Binay Kumar Singh v. State of Bihar, 1997 CrLJ 362.
51
Ibid.
52
The Public Prosecutor vs. Chidambaram and Anr, AIR 1928 Mad 791.
53
Dilwar vs. Emperor, AIR 1936 Lah 233.

9
ARGUMENTS ADVANCED
facts has elucidated that It is possible that a person interested in the acquittal of the Accused (1)
may come forward to support the plea of alibi of the Accused(1).54 Therefore, it is tenable to
say that the plea of alibi raised in favour of the Accused (1) falls on its face.
In the present case, there is no evidence except for the statement of Mr. Anirrudh Sethi that
corroborates to the fact that the Accused(1) was indeed with her father. It is a well settled law
that a plea of alibi must be proved with absolute certainty so as to exclude every possibility of
the presence of the Accused (1) at the place of occurrence55. Therefore, it is humbly submitted
before this Honble court that there is no evidence to shoulder the proof of alibi put forth by the
Accused (1) persons father. The burden of proof, in case of establishing an alibi lies on the
defence56, but in current case there is an evident lack of credibility of the plea raised.
The fact that the Accused (1) made a failed attempt to establish an alibi shoulders the
prosecutions case, as it echoes on the guilty conscious of the Accused (1). An innocent person is
not usually seen as raising a false plea of alibi57. An unsuccessful attempt to establish an alibi is
always a circumstance of the greatest weight against an Accused (1) person.58 It is humbly
submitted that if the defence of the alibi breaks down, it is a strong inference that in all
probability the Accused (1) was where the prosecution say he was59. Hence the inference drawn
makes proves (1) that the Accused (1) was present at the scene of crime (2) that establishing a
false alibi reflects on her guilty conscious.
There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory
for the courts to analyse, sift and assess the evidence on record, with particular reference to its
trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an
objective and reasonable appreciation of the same, without being obsessed by an air of total
suspicion of the case of the prosecution.60 It has been settled principle of law relating to
appreciation of circumstantial evidence that the circumstance from which the conclusion of guilt
54
Hari Chand and Another v. State of Delhi, AIR 1996 SC 1477 : 1996 SCC (Cri) 950.
AIR 1984 SC 63; AIR 1981 SC 911; AIR 1996 SC 1477; (1997) 1 SCC 283.
56
AIR 1972 SC 109; AIR 1992 SC 1389; Narendra Singh v. State of M.P., AIR 2004 SC 3249;
SubashMarutiAvasare v. State of Maharashtra, 2006 (10) SCALE 357; State of Kerela v. Anil Chandran, AIR
2009 SC 1866.
57
22 PR 1888 Cr.
58
68 PR 1866.
59
Sarat Chandra Dhupi vs. Emperor, AIR 1934 Cal 719.
60
Sardul Singh &Jagtar Singh v. State of Haryana, AIR 2002 SC 3462.
55

10
ARGUMENTS ADVANCED
is to be drawn should be, in the first instance, be fully established and all the facts so established
should be consistent only with the hypothesis of the guilt of the Accused (1).61 Conviction can be
solely based on circumstantial evidence only factor being that there is no hypothesis consistent
with the innocence of the accused62In the case at hand from the evidence so put forth by the
prosecution it can be said that the guilt of the Accused (1) has been proved beyond reasonable
doubt.
61
62
DebiprasadPadhi&anr. v. State, 1984 Cr.LJ 2214 (Ors.).

Gurpreet Singh (2002) 8 SCC 18; State v. Prasad Rao IBS, AIR 1970 SC 648; Govinda Reddy Krishna AIR
1960 SC 29; MunishMubar 2013 Cri LJ 56 (SC).

11
ARGUMENTS ADVANCED
CONTENTION II: THAT THE ACCUSED PERSONS ARE GUILTY UNDER THE INFORMATION
AND TECHNOLOGY ACT, 2000 AND SECTION 292 OF THE INDIAN PENAL. CODE, 1860 .
It is humbly submitted before the Honble Court that Accused (1) is guilty of offence under
section 67 and 67A IT Act, 2000 for recording and uploading a video that involved a clandestine
act and Accused (2), being the person in-charge of the affairs of the But It Sell It & Co. that
owned the website, sell-it.com, was responsible for its policy and planning. It is hereby
contended that he is guilty under section 292 & 295A IPC, 1860 and 67A, 67 & 85 of the IT Act,
2000.
[2.1] THAT ACCUSED 1 AND 2 ARE GUILTY UNDER SECTION 67A AND 67, IT ACT, 2000
It is averred before this Honble court that the Investigation officer (Shamsher Singh) in his
statement u/s 161 of the Code of Criminal Procedure, 1976, stated that the computer expert Mr.
Andy traced the video of Mr. Suhas Tandon and the Deceased engaging in a sexual act back to
Hi-Speed Cyber Caf, owned by Mr. Rajesh Sherwal. On further investigation the I.O discovered
that the Accused (1) was a regular customer at the cyber caf, as the owner recognized her on
first instance. Further, he gave an apt description of the accused by referring to her unique voice.
He also stated that there was no record with regards to the accused persons visit, as the records
pertaining to the previous week had caught fire due to an electric short circuit in the caf. The
fact that the place of uploading the video and its owner recognize Accused (1) as a regular
customer is no co-incidence. It is a relevant incriminating circumstance that directly points to the
guilt of the Accused (1).
Accused (2) has also been charged under section 67 A, 67 & 85 of the IT Act, 2000. For the
purposes of the present case, it is relevant to establish the chain of events. According to the
Investigating Officer63 an advertisement could be posted on www.sell-it.com by signing up with
a 6 digit username and a password of the users choice and no details for any identification were
required.
Arguendo, buyer visited the website sell-it.com and opted to buy a product, which in this case is
the explicit video clip in electronic form. After making the payment the clip may have been
downloaded in the buyers hard drive or sent to him as an email attachment. In todays
63
Case Details, Annexure 2, Statement of Prosecution Witness, PW 5 at pg10

12
ARGUMENTS ADVANCED
technological era numerous copies of a clip thereof can be made for further transmission as the
'publishing' in this form is instantaneous and can be repeated manifold.
In Avnish Bajaj v. State,64 the primary question arose out of the sale of a video clip on the
website of Baazee.com, in MMS form, depicting two children indulging in an explicit sexual act.
The website baazee.com provided an online platform/market where a seller and a buyer could
interact. It was contended, that 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 of the obscene material ensue, it cannot be said that the website did not even prima
facie cause publication of the obscene material. The Trial Court held the website guilty of
offences under Section 67 read with Section 85 of the IT Act, 2000.
In the present case, drawing inference from the above judgment, it is pertinent to mention that
sell-it.com even though just provided for a platform for buyer-seller interaction also played a part
in publishing the lascivious content and should be held liable for offence under Section 67A, 67
& 85 of the IT Act, 2000.
[2.2] THAT ACCUSED 2 IS GUILTY UNDER SECTION 292 IPC, 1860

Along with charges under the IT Act, 2000, Accused 2 is also charged for offence under Section
292 (2) (a) of the IPC, which provides that whoever 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 shall
be punished.
It is humbly submitted that this Sub-section makes distribution, public exhibition or circulation
of any obscene content as one of the elements of the offence under Section 292(2) (a) IPC. The
64
2008 (150) DLT 769.

13
ARGUMENTS ADVANCED
offence gets attracted when a person has "publicly exhibited or in any manner put into
circulation" or "has in his possession" the obscene object. Buy It Sell It & Co. even if merely
provided for a platform for buyers to contact sellers, still possessed the video of Suhas and
Mona engaging in sexual activity. The web portal is a public domain and can be accessed and
read by just anyone. The website was easily accessible on the net and therefore the website also
"publicly exhibited" the video.
It is further submitted that in Roth v. United States65 three tests have been laid down to determine
obscenity, these are:
(a) that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man;
(b) that the motion picture is not saved by any re- deeming social value; and
(c) that it is patently offensive because it is opposed to contemporary standards."
Further, the apex court in Devidas Ramachandra Tuljapurkar v. State of Maharashtra and
others66 relying on the Hicklins test67 stated that, 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 influences, and into whose hands a publication of this sort may fall ... it is
quite certain that it would suggest to the minds of the young of either sex, or even to persons of
more advanced years, thoughts of a most impure and libidinous character."
Moral principles are the creations of the special decisions taken from time to time by human
beings and they will differ, or may differ, according to the particular circumstances in which they
are created.68Some acts meant to be done behind closed doors were recorded and uploaded on a
website which was accessed by a large number of people. Such sexually explicit act in no way
promoted any moral values and tendency to corrupt is a much stronger concept than a tendency
to shock or disgust and implies the spread of moral perversion, as so happened in the present
case.
65
(1957) 354 US 476.

AIR 2015 SC 2612.
67
Regina v. Hicklin, [1868] 3 Q.B. 360.
68
NeelamMahajan Singh v. Commissioner of Police and Others, 1996 CRLJ 2725.
66

14
ARGUMENTS ADVANCED
[2.3] THAT NO DUE DILIGENCE WAS OBSERVED

The Buy It Sell It & Co. also provided a platform for secure transaction for money transfer to
websites. It is hereby contended that inspite of having a liability to ensure the quality of content
being posted online the company did not take any action to make the obscene video unavailable
or stop the flow of payment through Banking channels.
It has been stated that for the intermediary to avail himself of the exemption under Section 79, IT
Act, 2000, the protection from liabilities that could arise out of any legal action initiated on the
basis of user generated content. Such safe harbor protection is available to them conditional upon
their observing due diligence while discharging their duties and guidelines issued by the
government in this regard.
It is further contended that Buy It Sell It & Co. ignored adequate safety measures and did not
take precautions as are necessary to be observed by any advertising agency or citizen of the
country who has undertaken responsibility towards the community.
Guidelines as issued under the Rule 3(4)69 Information Technology (Intermediary Guidelines)
Rules, 2011, states that the intermediary shall preserve information and records for at least ninety
days for investigation purposes. It is thus humbly contended that in the present case that through
his company is concealing material facts pertaining to the present case. It is further submitted
that such conduct of the accused points directly to their guilt.
In the case of Avnish Bajaj v State70 it was held that when appropriate filters are not applied to
detect the pornographic content of what was being offered for sale, the website runs a risk of
having imputed to it the knowledge that such an object was in fact obscene. It further stated,
these are the attendant risks that a website owner attracts when he exploits cyber space for
profits. The proliferation of the internet and the possibility of a widespread use through instant
transmission of pornographic material, calls for a strict standard having to be insisted upon.
69
Rule 3(4), Information Technology (Intermediary Guidelines) Rules, 2011: The intermediary, on whose
computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been
brought to actual knowledge by an affected person in writing or through email signed with electronic signature
about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where
applicable, work with user or owner of such information to disable such information that is in contravention of
sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety
days for investigation purposes.
70
2008 (150) DLT 769.

15
ARGUMENTS ADVANCED
Owners or operators of websites that offer space for listings might have to employ content filters
if they want to prove that they did not knowingly permit the use of their website for sale of
pornographic material. 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. This of course would be a rebuttable presumption. It would be open to the owner of the
website to show that it took reasonable precaution to filter the listing for obscene material, this it
was nevertheless placed on the website listed without its knowledge and that it took prompt
corrective once it knew that the listing or the product offered for sale was obscene.
In the present case, the website, sell-it.com did not have appropriate filters that could have
detected the obscene content being posted on it. Any content that is obscene tends to deprave and
corrupt the public merely by its indecency or lewdness.71The explicit video which also had Gyan
Baba Jis picture in the background was exposed to the public. The public at large includes
followers of Gyan Baba Ji who search for online content related to him. Many of them would
have been exposed to the indecent content in question resulting in prurient interests being
compromised upon.
71
Black's Law Dictionary,10th Ed., 2014

16
ARGUMENTS ADVANCED
CONTENTION III: THAT THE ACCUSED PERSONS ARE LIABLE UNDER SECTION 295A OF THE
It is humbly submitted that in the instant case the accused persons i.e. Mr. Farhan Qureshi and
Mrs. Pia Tandon are guilty of the offence of outraging religious sentiments u/s 295 A of the
Indian Penal Code, 1860.
The primary object of the Parliament to insert Section 295A was to counter the prevalence of
malicious writings or visible representations intended to insult the religion or outrage the
religious feelings of various classes of citizens. In the present case the statement of D.W. 372 and
the F.I.R.73 make it apparent beyond doubt that the video in question gave rise to unrest in the
society which is in direct contravention of the objects for which Section 295A was inserted.
Section 295 A provides for three primary essentials which need to be fulfilled to amount to a
violation under the said provision, from the facts of the instant case all of which stand fulfilled,
the essentials are74:
i)
That an insult was done to outrage the religious feelings of any class of citizens of
India.
ii)
That such an act was done by words or acts or visible representation or otherwise.
iii)
That such an act must be done with deliberate and malicious intention.
It is worth noting that Section 295A does not penalize every act of insult to or attempt to insult
the religion or the religious beliefs of a class of citizens but it penalizes only those acts of insults
to or those varieties of attempts to insult the religions or the religious beliefs of a class of citizens
which are perpetrated with the deliberate and malicious intention of outraging the religious
sentiments of the class.75 It is humbly submitted that Accused No. 1 and Accused No.2 have
deliberately caused insult and hurt to the followers of Gyan Baba Ji as is apparent from the fact
that the video was recorded and posted by Accused (1) and sold and hosted on the website of
Accused (2), thereby satisfying the first and second essentials. In Shri Krishna Sharma,76 it was
72
Case Details, Annexure 2, Statement of DefenceWitness, DW 3at pg13

Case Details, Annexure 2, F.I.R.at pg4
74
Ratanlal&Dhirajlal, The Code of Criminal Procedure, Wadhwa& Co., Nagpur, 19 th Ed., 2011.
75
AIR 1958 SC 620
76
(1955) 8 Sau. LR 42 (FB)
73

17
ARGUMENTS ADVANCED
held that anything, which preaches insult to religion or religious beliefs of another class,
definitely tends to disturb public order.
[3.1] THAT ACCUSED (1) HAD MALICIOUS INTENTION
In order to establish malice as contemplated by Section 295 A, it is not necessary for the
prosecution to prove that the applicant bore ill will or enmity against specific persons. If the
injurious act was done voluntarily without a lawful excuse, malice may be presumed.77In order to
establish malice as contemplated by Section 295 A, it is not necessary for the prosecution to
prove that the applicant bore ill will or enmity against specific persons. If the injurious act was
done voluntarily without a lawful excuse, malice may be presumed.78
Malice in common acceptance means ill will against a person, but in its legal sense it means a
wrongful act, done intentionally, without just cause or excuse.79 Further, whether a person has
acted maliciously is a question of fact to be proved.80Malice is often not capable of direct and
tangible proof and in almost, all cases has to be inferred from the surrounding circumstances
having regard to the setting, background and connected facts in relation to the offending
article.81In the instant case as stated before, Accused (1) had enmity with the deceased and also
the motive to hurt Suhas Tandon. It is further submitted that uploading such a video served both
the accused persons intents, firstly, the deceased was subjected to public humiliation and shame,
secondly, Gyan Baba Ji being Suhas client, such a video was bound to effect his business.
Therefore, from the circumstances surrounding the present case it may be reasonably concluded
that the Accused (1) had the malicious intent required to constitute an offence under Section
295A.
[3.2] THAT ACCUSED (2) HAD MALICIOUS INTENTION
It is humbly submitted that as mentioned earlier in the preceding contention that Accused (2) is
liable for the publication of the obscene video. The same has resulted in the outraging the
sentiments of the followers of Gyan Baba Ji. Further, as stated earlier, malice for the purpose of
77
Baba Khalil Ahamad v. State, AIR 1960 All 715.

Ibid.
79
Bromage v. Prosser (1825) 4 B&C 247; State of A.P. and Ors.v. Goverdhanlal Pitti[2003]2SCR908.
80
Sujato Bhadra v. State of West Bengal (2005) 3 CALLT 436 (HC)
81
Ibid.
78

18
ARGUMENTS ADVANCED
Section 295A means any wrongful act done without just cause or excuse,82 it is pertinent to shed
light on the fact that the primary reason for the immense humiliation caused to the deceased was
the publication of the video for which Accused (2) is directly responsible. The same has been
dealt with in the previous contention in detail.
It is further submitted that Accused (2), as stated in the previous contention, acted in negligence
of his duties under the IT Act, 2000, and as stated in section 32 of the IPC words referring to acts
also include illegal omissions. Further, the Honble Calcutta High Court has observed that, if the
injurious act was done voluntarily without a lawful excuse, malice may be presumed. 83 Also, a
similar view has been expressed in State of Andhra Pradesh and Ors. v. Goverdhan lal Pitti84
where the court observed that, it is an act done wrongfully and willfully without reasonable or
probable cause and not necessarily an act done from ill feeling and spite. It is a deliberate act in
disregard of the rights of others. In the instant case the difference between malice in law and
malice in fact have to be clearly understood and the fact that although Accused (2) did not have
malice in fact, however, his acts amount to acts of malice under law. Therefore, it humbly
submitted that Accused (2) is guilty of outraging the religious sentiments of the followers of
Gyan Baba Ji and his acts amount to an offence under Section 295A of the IPC.
82
Ibid.
Ibid.
84
(2003) 4 SCC 739.
83

19
PRAYER
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, the
Public Prosecutors humbly pray before this Honble Court to kindly adjudge and declare:
THAT THE ACCUSED NO.1 IS GUILTY OF OFFENCES U/S 67A & 67 OF THE INFORMATION
TECHNOLOGY ACT, 2000 AND U/S 302, 292, 295A OF THE INDIAN PENAL CODE, 1860
THAT
THE
ACCUSED NO. 2
IS GUILTY OF OFFENCES U/S
67A, 67 & 85
OF INFORMATION
TECHNOLOGY ACT, 2000 AND U/S 292 & 295A OF INDIAN PENAL CODE, 1860
And pass any other appropriate order as the court may deem fit
And for this Act of Kindness, the Prosecution as in duty bound shall forever pray.
Respectfully Submitted
Sd/Public Prosecutor

xi

Memorial For Prosecution TC3

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TEAM CODE: TC 3

2ND U.I.L.S. NATIONAL TRIAL ADVOCACY, 2016

IN THE COURT OF THE SESSIONS JUDGE, CHANDIGARH

CASE NO. - _________/2016

THE STATE (UNION TERRITORY OF CHANDIGARH)

MEMORIAL ON BEHALF OF THE PROSECUTION

CONTENTION I: THAT THE ACCUSED 1 IS GUILTY OF MURDER UNDER SECTION

MEMORIAL ON BEHALF OF THE PROSECUTION

All India Reporter

Code of Criminal Procedure

Criminal Law Journal

Indian Penal Code

Information Technology Act, 2000

Supreme Court Cases

The Criminal Procedure Code, 1973 (Act 2 of 1974)

The Indian Evidence Act, 1872 (Act 1 of 1872)

The Indian Penal Code, 1860 (Act 45 of 1860)

Information Technology Act, 2000

MEMORIAL ON BEHALF OF THE PROSECUTION

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