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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT &

JUDGMENT WRITING COMPETITION - 2015

BEFORE THE COURT OF SESSIONS

AT DURG, XANADU

S.C. NO. 111 OF 2015

STATE OF XANADU MANOHAR(ACCUSED NO. 1)


v. (DEFENCE)
(PROSECUTION) RAHUL (ACCUSED NO. 2)

FOR OFFENCES CHARGED UNDER:

SEC.302, SEC.465 R/W SEC.34, SEC.120B, SEC.109 OF BHARAT PENAL CODE, 1860

& SEC.66, SEC.66C OF INFORMATION TECHNOLOGY ACT, 2000

UPON SUBMISSIONS TO THE HONBLE SESSIONS JUDGE

MEMORIAL ON BEHALF OF THE PROSECUTION TAW 2


Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 i

TABLE OF CONTENTS

Table of Contents ....................................................................................................................... i

List Of Abbreviation ................................................................................................................ iii

Index of Authorities .................................................................................................................. v

[A] Indian Case Laws .......................................................................................................... v

[B] Statutes .........................................................................................................................vii

[C] Books Cited ..................................................................................................................vii

[D] International Case Laws .............................................................................................vii

[E] Online Articles ........................................................................................................... viii

[F] Online Databases........................................................................................................ viii

Statement of Jurisdiction ......................................................................................................... ix

Statement of Facts ..................................................................................................................... x

Statement Of Charges .............................................................................................................. xi

Summary of Arguments ..........................................................................................................xii

Arguments Advanced ................................................................................................................ 1

CHARGES I, II & III: MANOHAR LAL AND RAHUL ARE GUILTY OF

CONSPIRACY, MURDER, AND FORGERY OF PRESCRIPTION ........................... 1

[A] ACCUSED IS LIABLE FOR CRIMINAL CONSPIRACY ....................................... 1

[A.1]An object to be accomplished ............................................................................... 2

[A.2] Plan and scheme ................................................................................................... 2

[A.3] Agreement or understanding was there between the accused .............................. 2

[B] THE ACCUSED IS GUILTY OF COMMITING MURDER .................................... 3

[B.1] Actus Reus to commit murder is proved .............................................................. 4

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 ii

[B.1.A] The administration of Angispan intravenously along with an air embolism

led to Deceased death................................................................................................. 4

[B.1.B] The medicine and air embolism was administered by the accused. ............. 5

[B.2] MensRea to commit murder was present ............................................................. 6

[B.2.A] The accused acted with the intention to kill. ................................................ 6

[B.2.B] The accused had the knowledge that his act would lead to the death. .......... 7

[C] MANOHAR IS LIABLE FOR FORGERY OF THE PRESCRIPTION .................... 8

CHARGE IV & V: WHETHER ACCUSED ARE GUILTY OF IDENTITY THEFT 9

[A] D.W.2 IS LIABLE FOR ABETTING IDENTITY THEFT U/S 109 OF IPC ............ 9

[A.1] Abetment by Instigation ....................................................................................... 9

[A.2] Abetment by Conspiracy .................................................................................... 10

[A.3] Abetment by Intentional Aiding ......................................................................... 10

[B] THE ACCUSED HAD COMMON INTENTION TO COMMIT THE OFFENSE

OF IDENTITY THEFT ................................................................................................... 11

[B.1] There was a common intention ........................................................................... 11

[B.2] Act was committed in furtherance of the crime ................................................. 12

[C] WHETHER ACCUSED HAD COMMITTED FORGERY U/S 465 OF BPC, 1860

AND 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000 .............................. 13

[C.1] The accused prepared a false document or electronic record ............................. 13

[C.2] The document or electronic record was prepared dishonestly or fraudulently .. 14

[C.3] Offense under Sec.66C of Information Technology Act, 2000 is constituted ... 15

PRAYER FOR RELIEF ......................................................................................................... 16

Memorial on Behalf of Prosecution


Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 iii

LIST OF ABBREVIATION

& And

A.I.R. All India Reporter

A.L.T. Andhra Law Times

All. Allahabad Reporter

B.B.C.J. Bihar Bar Council Journal

B.P.C. Bharat Penal Code

BOM.L.R. Bombay Law Reporter

C.B.I. Central Bureau of Investigation

C.P.J. Consumer Protection Judgements

Cal. Calcutta

Cr.P.C. Code of Criminal Procedure

Cri. Criminal

Cri.L.J. Criminal Law Journal

D.L.T. Delhi Law Times

Ed. Edition

Eds. Editor

G.L.R. Gujrat Law Reveiw

I.L.R. Indian Law Reports

J.C.C. Journal of Criminal Cases

Ker. Kerala

Lah. Lahore

Mad. Madras

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 iv

Mys. Mysore

p. Paragraph

P.C. Privy Council

pg. Page

Q.B. Queens Bench

r/w Read with

Sec. Section

S.C. Supreme Court

S.C.C. Supreme Court Cases

U.O.I. Union of India

U.P. Uttar Pradesh

U.S.B. Universal Serial Bus

u/s Under Section

v. versus

Vol. Volume

Vol. Volume

W.B. West Bengal

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 v

INDEX OF AUTHORITIES

[A] INDIAN CASE LAWS

1. Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 500 .................................. 11

2. Arnish Arora v. State of Kerala, 2014 Cri LJ 1189 ..................................................... 15

3. Bharat Singh & Anr v. Bhagirathi, AIR 1966 SC 405 .................................................. 5

4. Dani Singh v. State, 2004 (13) SCC 203. .................................................................... 12

5. Daniel Bernstien v. United States (Dept. of State), 922F Supp. 1426. ........................ 14

6. Daniel Hailey Walcott v. State, AIR 1968 Mad 349 ..................................................... 8

7. Dayanand v. State of Haryana, AIR 2008 SC 1823 ...................................................... 6

8. Deepti Anil Devasthali & Leena Anil Devastnali v. State of Maharashtra, 2009 (111)

Bom LR 3981............................................................................................................... 11

9. Devender v. State, 2002 (5) SCC 234 ............................................................................ 1

10. Dr. Laxman Balkrishna Joshi v.Dr. Trimbak Bapu Godbole, 1969 (1) SCR 206 ......... 7

11. Emperor v. C.E. Ring, 1929 (31) BOMLR 545 ............................................................. 5

12. Emperor v. Rachappa Yellapa, AIR 1932 Bom 545 ................................................... 14

13. Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28 ................................... 1, 11

14. G.D. Jiladia v. Minor Dharmistha Chhotubhai Goswami, 2003 CPJ 381 .................... 7

15. Gajanand v. State of U.P., AIR 1954 SC 595 ............................................................... 2

16. Hardeo Singh v. State of Bihar & Others, 2000 Crl. L.J. 2978 ................................... 11

17. In Re:Rasiyat Ali v. Unknown, 1881 ILR (7) Cal 352 ................................................. 13

18. Indian Bank v. Satyam, 1996 5 SCC 550..................................................................... 13

19. J.M. Desai v. State of Bombay, AIR 1960 SC 889 ...................................................... 12

20. Jayendra Saraswati Swamigal v. State of Tamil Nadu, AIR 2005 SC 716 ................... 3

21. Mahmood v. State of UP, AIR 1976 SC 69 ................................................................. 12

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 vi

22. Major Bassey v. State, AIR 1961 SC 1762.................................................................... 2

23. Mirza Akbar v. Emperor, AIR 1940 PC 176 ................................................................. 3

24. Mohd.Farooq Abdul Gafur & Anr v. State of Maharashtra, 2010 (14) SCC 641....... 11

25. Mohd.Khalid v. State, 2002 (7) SCC 334 ...................................................................... 1

26. Narendra Nama Das v. State of Tripura, 2009 (1) GLR 856 ........................................ 4

27. Naseem Ahmed v. Delhi Administration, AIR 1974 SC 691 ......................................... 4

28. Noor Mohammad Yusuf v. State of Maharashtra; 1971 AIR SC 885 ......................... 10

29. Pandurang Tukia v. State of Hyderabad, AIR 1955 SC 331....................................... 11

30. Parasa Raja v. State, 2003 (12) SCC 306 ................................................................... 12

31. Peoples Patriotic Front v. Birla, 1984 CrLJ 545 ....................................................... 13

32. Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 AIR SC 876 ........................ 10

33. R.R. Diwakar v. B. Guttal, 1975 Cr LJ 90 ..................................................................... 8

34. Raja Kulkarni v. State of Bombay, 1954 CrLJ 788...................................................... 14

35. Rajinder Kumar v. Secretary, Delhi Administration, 1985 AIR SC 1805 .................. 10

36. Ram Narayan Popli v. CBI 2003 (3) SCC 671 .............................................................. 2

37. Ram Tahal v. State of Uttar Pradesh, AIR1972 SC 254 ............................................. 11

38. Ramesh v. State, 1979 Cri. L. j. 727 at p. 732 ............................................................... 6

39. Ranjana Yaki v. State, 2004 (12) SCC 521.................................................................... 9

40. Sachin v. State, 2008 (3) SCC 390 .............................................................................. 11

41. Sanjeev Nanda v. State, 2009 DLT 775 ......................................................................... 7

42. Sanju v. State, 2002 (5) SCC 371 .................................................................................. 9

43. Sartaj v. State, 2014 (4) JCC 3027 ........................................................................ 14, 15

44. Shankarlal Kacharabai and Others v. State of Gujrat, AIR 1965 SC 1260 ......... 11, 12

45. Sharad Birdhichand Sardav. State of Maharashtra, AIR 1984 SC 1622 ..................... 4

46. Sheo Govind Bin v. State of Bihar, 1985 BBCJ 632...................................................... 4

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47. Sherimon v. State of Kerala, 2012 (1) SCC (Cri) 116 ................................................... 2

48. Shiv Prasad Chunni Lal Jain v. State of Maharashtra, AIR 1965 SC 264 ................. 11

49. Sohan Raj v. State, 2008 (11) SCC 215 ......................................................................... 9

50. State v.Sikora, 44 N.J. 453 (1965) ................................................................................. 6

51. Sunny Kapoor v. State, 2006 10 SCC 182. .................................................................. 12

52. Uttam Singh Duggal & Co. Ltd. v. United Bank of India, AIR 2000 SC 2740. ............ 5

53. Vajruben & Ors v. State of Gujrat, 2015 (III) CCR 34 ............................................... 10

[B] STATUTES

1. Schedule 2 under Sec.12(4), Information Technology Act, 2000 (Act 21 of 2000).... 13

2. Schedule 3, Information Technology Act, 2000 (Act 21 of 2000) .............................. 13

3. Schedule V of The Information Technology (Certifying Authorities) Rules, 2000 .... 14

4. Section 120A, Indian Penal Code, 1860 (Act 45 of 1860) ............................................ 1

5. Section 18, Indian Evidence Act, 1872 (1 of 1872). ...................................................... 5

6. Section 43, Information Technology Act, 2000 (Act 21 of 2000) ............................... 15

7. Section 6, Indian Evidence Act, 1872 (1 of 1872). ........................................................ 5

[C] BOOKS CITED

1. HALSBURYS LAWS OF ENGLAND 44 (Lord Hailshameds., 4th ed 1987). ............ 1

2. HALSBURYS LAWS OF ENGLAND 58 (Lord Hailshameds., 4th ed 1987) ............. 2

3. James Humber, BIOMEDICAL ETHICS AND THE LAW 518 (2nd ed., 1979). ......... 5

4. P. Ramanatha Aiyer, THE LAW LEXICON 84 (2nd ed., 1997) .................................. 10

[D] INTERNATIONAL CASE LAWS

1. Daniel Bernstienv. United States (Dept. of State), 922 F Supp. 1426 ......................... 14

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i

2. Dickins v. Gill, 1896 (2) QB 310................................................................................... 8

3. State v. D. Fetters, Iowa 1972 (202) N.W. 2d 84 ........................................................ 10

[E] ONLINE ARTICLES

1. FROM FDA REPORTS : DRUG INTERACTIONS BETWEEN

GLYCERYLTRINITRATE AND

OXYCODONE,http://www.ehealthme.com/Atorvastatin-Calcium-Plavix-Aspirin-

Perindopril-Glyceryl-Trinitrate-Oxy-3694069 (last visited 15th August 2015). ........... 4

2. RBI REPORT ON INTERNET BANKING (PART 2 OF 2), 22/01/2000,

https://www.rbi.org.in/SCRIPTS/PublicationReportDetails.aspx?UrlPage=&ID=244

(last visited 15th August, 2015) .............................................................................. 13, 14

3. SIDE-EFFECTS OF GLYCERYLTRINITRATE, http://www.nhs.uk/medicine-

guides/pages/MedicineSideEffects.aspx (follow Glyceryl Trinitrate hyperlink; then

follow side effects, last visited 23rd August 2015) .................................................... 4

4. TIME DEPENDENT INTERACTIONS OF THE HYPERTENSIVE EFFECTS OF

SILDENIFAL CITRATE AND GLYCERYLTRINITRATE,

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2679103 (last visited 15th August

2015) .............................................................................................................................. 4

[F] ONLINE DATABASES

1. Westlaw (www.westlawindia.com)

2. Manupatra (www.manupatra.com)

3. SCC Online (www.scconline.in)

4. JSTOR (www.jstor.org)

Memorial on Behalf of Prosecution


Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 ix

STATEMENT OF JURISDICTION

The Honble Court has jurisdiction to try the instant matter under Sec.177 r/w Sec.184 and

Sec.209 of the Code of Criminal Procedure, 1973.

Sec.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.

Sec.184: Place of trial for offences triable together. Where-

(a) the offences committed by any person are such that he may be charged

with and tried at one trial for, each such offence by virtue of the provisions of

Sec.219, Sec.220 or Sec.221, or

(b) the offence of offences committed by several persons are such that they

may be charged with and tried together by virtue of the provisions of Sec.223,

the offences may be inquired into or tried by any Court competent to inquire

into or try any of the offences.

r/w Sec.209:

Sec.209: Commitment of case to Court of Session when offence is triable

exclusively by it- When in a case instituted on a police report or otherwise, the

accused appears or is brought before the Magistrate and it appears to the Magistrate

that the offence is triable exclusively by the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused

to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if

any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of

Session.

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 x

STATEMENT OF FACTS

1. Manohar (hereinafter, Mano)became an orphan at the age of 10. Since then his uncle

Karan brought him up and financed his education including payment of his college

fees.

2. Karans health started deteriorating considerably. He suffered from various ailments,

including high blood pressure, obesity, diabetes and alcohol addiction.

3. Mano was always indebted to his uncle and for that matter he extremely respected his

uncle and took care of him when no one else did. Mano and Rahul were good friends.

4. Mano always had his uncles express authority to transfer money online from his bank

account whenever he required.

5. It is suspected that even on the morning of 3rd August Karan had drank alcohol, and

wanted to go for work on the same day despite his condition, both of which Mano

advised him against.

6. On the same day, Karan complained of chest pain. Mano sent his cousin Raghav to

fetch Angispan.Following the administration of Angispan, Karan recovered fully for

half an hour.

7. Subsequently, Karan developed fits and seizure, and collapsed. Mano and Raghav

tried to revive him but failed.

8. Following this, an F.I.R was filed by Devika and Mano and Rahul were later arrested

for the murder of Karan.

9. In the investigation under Sec.173, the medicine Oxycontin, which is a painkiller, and

several half-empty bottles of alcohol were found.

10. On forwarding of the police report to the Magistrates Court, the court took

cognizance and committed the case to the Sessions Court of Durg.

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 xi

STATEMENT OF CHARGES

CHARGES I, II & III

ACCUSED 1 AND ACCUSED 2 HAVE BEEN CHARGED WITH CRIMINAL CONSPIRACY, MURDER, AND

FORGERY WITH COMMON INTENTION UNDER SEC.120B, SEC.302, AND SEC.465 READ WITH SEC.34

OF THE BHARAT PENAL CODE, 1860

CHARGES IV & V

ACCUSED 1AND ACCUSED 2 HAVE BEEN CHARGED WITH HACKING AND IDENTITY THEFT UNDER

SECTION.66 AND SEC.66C OF THE INFORMATION TECHNOLOGY ACT, 2005 AND RAHUL GULATI HAS

BEEN CHARGED WITH ABETMENT UNDER SEC.109 OF THE BHARAT PENAL CODE, 1860

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SUMMARY OF ARGUMENTS

CHARGE I, II & III

WHETHER MANOHAR LAL AND RAHUL ARE GUILTY OF CONSPIRACY OF MURDER AND MURDER

The Accused 1 and Accused 2 are guilty of criminal conspiracy because there was an

agreement to do an illegal act to commit the offense of murder.Accused 1 in furtherance of

the conspiracy acted with the intention in a manner that his act would in all likelihood cause

the death of Karan and that it did, is proved beyond reasonable doubt (hereinafter referred to

as the deceased)

CHARGE IV & V

WHETHER RAHUL AND MANOHAR ARE GUILTY OF IDENTITY THEFT

The accused Manohar and Rahul had the common intention to commit the offense of forgery

and identity theft as they had a common agreement and the act was done in furtherance of the

common agreement. The accused (A1 and A2) are liable for forgery and identity theft. They

are liable for forgery where they had hacked the bank account and forged the records and

transferred funds to their respective account. Since they had accessed computer resources to

commit the forgery and misused the password of Karans bank account provisions of Sec.66

and 66C would also be attracted. Rahul is also liable for aiding and abetting the commission

of crime.

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 1

ARGUMENTS ADVANCED

CHARGES I, II & III: MANOHAR LAL AND RAHUL ARE GUILTY OF

CONSPIRACY, MURDER, AND FORGERY OF PRESCRIPTION

It is humbly contended before this Honble Court that the accused ManoharLal and Rahul

(hereinafter individually to be referred to as D.W.1 and D.W.2 respectively) are guilty of

the offences under Sec.302 and Sec.120B of the Bharat Penal Code, 1860 (hereinafter

referred as the BPC). In the instant matter DW1 and DW2 had conspired together to murder

deceased [A] and their actions lead to murder of the deceased. [B] D.W.2 is also liable for

forgery of the prescription [C].

[A] ACCUSED IS LIABLE FOR CRIMINAL CONSPIRACY

The accused have been rightfully charged under Sec.120B, the essential of which is

formulation of conspiracy. Conspiracy has been defined as the agreement of two or more

persons to do an unlawful act or to do a lawful act by unlawful means.1 The essence of the

offence of conspiracy is the fact of combination by agreement.2 The elements of a criminal

conspiracy have been stated to be3: An object to be accomplished, [A.1] A plan or scheme

embodying means to accomplish that object [A.2] An agreement or understanding between

two or more of the accused persons whereby, they become definitely committed to co-operate

for the accomplishment of the object by the means embodied in the agreement, or by any

effectual means. [A.3]

1
Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28; HALSBURYS LAWS OF ENGLAND 44(Lord
Hailshameds., 4thed 1987).
2
Sec.120A, Indian Penal Code, 1860 (Act 45 of 1860).
3
Devender v. State 2002 (5) SCC 234; Mohd.Khalid v. State 2002(7) SCC 334.

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 2

[A.1]An object to be accomplished

Even person being aware of the likelihood of the commission of the offense can be held liable

for common object.4 In the instant matter the conversation made by both of the accused about

the deceaseds death signifies their common intention to commit the Murder of accused in

order to live a rich and extravagant lifestyle.5

[A.2] Plan and scheme

In the present matter the accused had a well thought plan, both the accused D.W.1 and D.W.2

were medical students and had knowledge of how to commit the murder, since the murder

required specific medical knowledge namely, the consequences of injecting of 3 syringes6

or more with air, and cross-reaction of drugs administered to the deceased.

[A.3] Agreement or understanding was there between the accused

The parties to a criminally conspired agreement will be guilty of criminal offence, even if the

illegal act agreed to be done has not been done.7 The agreement may be proved by a

necessary implication.8It is essential to pay attention to certain events which occurred in order

to satisfy this element of crime.Meeting of minds is an essential amongst the conspirators

forconviction under Sec.120B.9It is not, however, necessary that each conspirator should

have been in communication with every other.10

4
Gajanand v. State of U.P., AIR 1954 SC 595.
5
Pg 3, Factual Matrix, para 16
6
Pg 8, Annexure 2 Panchnama
7
Major Bassey v. State, AIR 1961 SC 1762.
8
Ram Narayan Popli v. CBI 2003(3) SCC 671.
9
Sherimon v. State of Kerala 2012 (1) SCC (Cri) 116.
10
HALSBURYS LAWS OF ENGLAND 58 (Lord Hailshameds., 4thed 1987).

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 3

Sec.10 of the Evidence Act makes the acts and statements of a co-conspirator admissible

against the whole body of conspirators.11 The expression 'in reference to their common

intention' impliedly means 'in furtherance of', with the result anything said, done or written

by a co-conspirator, will be evidence against the other before he entered the field of

conspiracy or after he left it.12

D.W.2 always discussed and constantly reminded D.W.1 how rich D.W.1would be if his

uncle were dead. The Constant reminders to D.W.1 who was over ambitious presumably gave

birth to an idea to commit an offence of Murder thus showing the meeting of minds. Thus by

necessary implication, it is proved that the conspirators had agreed impliedly to the intention

of murdering the deceased.

In the present case, when the above circumstances are taken together on their face value they

indicate the meeting of minds between the conspirators D.W.1 and D.W.2 for achieving the

intended object of committing a murder.

[B] THE ACCUSED IS GUILTY OF COMMITING MURDER

It is humbly presented before the court, that under Sec. 300(2), a person is guilty of

committing murder if he acts with the intention of causing such bodily injury which he

knows to be likely to cause the death of the person to whom such harm is caused. The

Prosecution contends that both, the actus reus [B.1] and the mens rea of the crime are

established in the instant matter [B.2].

11
Jayendra Saraswati Swamigal v. State of Tamil Nadu, AIR 2005 SC 716.
12
Mirza Akbar v. Emperor, AIR 1940 PC 176.

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 4

[B.1] Actus Reus to commit murder is proved

The circumstantial evidence in a case where there is a link of causation, if established, proves

that the act was committed by the person so accused.13 In the present case, the link of

causation is established as the administration of Angispan and the air embolism lead to the

death of Deceased [A], and this was done by the accused, DW1 [B].

[B.1.A] The administration of Angispan intravenously along with an air embolism led to

Deceased death.

The post-mortem report is an extremely relevant and important document, in cases brought

under Sec.302, of the Bharat Penal Code;14 and the forensic report can also be relied upon to

prove facts.15

Post-mortem report

In the instant case, the post-mortem report states that the cause of death of Deceased is due to

cross-reaction of drugs administered to him.16 The drug Oxycontin was found in the house

during investigation,17 and since the drug Angispan can react with the drug Oxycontin,18 and

the drug Angispan alone can also have fatal side-effects,19 it is reasonable to conclude that

13
Naseem Ahmed v. Delhi Administration, AIR 1974 SC 691; Sharad Birdhich and Sarda v. State of
Maharashtra, AIR 1984 SC 1622.
14
Sheo Govind Bin v. State of Bihar, 1985 BBCJ 632.
15
Narendra Nama Das v. State of Tripura, 2009 (1) GLR 856.
16
Page 9, Annexure 3- Post Mortem Report.
17
Page 16, Annexure 6 Report of Investigation u/s 173CrPC.
18
FROM FDA REPORTS : DRUG INTERACTIONS BETWEEN GLYCERYLTRINITRATE AND
OXYCODONE,http://www.ehealthme.com/Atorvastatin-Calcium-Plavix-Aspirin-Perindopril-Glyceryl-
Trinitrate-Oxy-3694069 (last visited 15th August 2015).
19
TIME DEPENDENT INTERACTIONS OF THE HYPERTENSIVE EFFECTS OF SILDENIFAL CITRATE
AND GLYCERYLTRINITRATE, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2679103 (last visited 15th
August 2015);SIDE-EFFECTS OF GLYCERYLTRINITRATE, http://www.nhs.uk/medicine-
guides/pages/MedicineSideEffects.aspx (follow Glyceryl Trinitrate hyperlink; then follow side effects;
last visited 23rd August 2015).

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 5

such cross-reaction or over-dose, as the case may be, had occurred when DW1 administered

the drug to him, leading to cardiac arrest.

Forensic report

In the instant case, the forensic report concludes that death was caused due to air embolism in

the artery.20 It is humbly presented before the court that in cases of ill patients, an air

embolism caused by injecting 3 syringes or more of air is enough to be fatal in the patient.21

[B.1.B] The medicine and air embolism was administered by the accused.

It is humbly contended before the court that an answer made in an interrogative statement can

be considered an admission,22 for the purposes of Sec.18 of Bharat Evidence Act,23 and such

an admission is a substantive piece of evidence by itself.24 When a cause is immediately

preceding the act, it is presumed to be in the same transaction,25 and therefore is a relevant

fact for consideration, under Sec.6 of the Bharat Evidence Act26.

That deceased was administered an injection of Angispan by D.W.1, is evident27 and has been

reaffirmed by the statement of the accused, D.W.1, which amounts to an admission by him,

regarding the commission of the act. This fact is also relevant for consideration as it is in the

same series of acts, being immediately antecedent to the death of deceased.

20
Page 11, Annexure 4- Forensic Report
21
James Humber, BIOMEDICAL ETHICS AND THE LAW 518 (2nd ed., 1979).
22
Uttam Singh Duggal& Co. Ltd. v. United Bank of India, AIR 2000 SC 2740.
23
Sec.18, Indian Evidence Act, 1872 (1 of 1872).
24
Bharat Singh &Anr v. Bhagirathi, AIR 1966 SC 405.
25
Emperor v. C.E. Ring 1929(31) BOMLR 545.
26
Sec.6, Indian Evidence Act, 1872 (1 of 1872).
27
Page 4,Factual Matrix, Pp 21

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 6

It is also pertinent to note that, since none of the medicines that were prescribed to Deceased

were required to be administered in syringe form, the presence of 4 used syringes that were

recovered from the deceaseds house,28 and only one being used to administer the drug

Angispan, leads to the reasonable conclusion that three of them were used to forcibly

introduce a fatal air embolism in the deceaseds arteries.

Even if it is assumed that all four of the used syringes found were used to administer

Angispan to the deceased, it is humbly submitted before the court that such quantity of

Angispan would be fatal.

[B.2] MensRea to commit murder was present

[B.2.A] The accused acted with the intention to kill.

In the absence of any circumstances to show that injury was caused accidentally or

unintentionally, it is presumed that there was intention to cause the inflicted injury.29 When

there are repeated blows or attempts at taking a persons life, there can be said to have existed

an intention on the part of the inflictor to kill the other person.30 Moreover, the criminality of

an act cannot be denied if a person plans to kill another.31

In the present case, on the basis of the statement of the accused made under Sec.161 of the

Criminal Procedure Code, 1973, it is evident that in order to manufacture time to forcibly

introduce an air embolism in Deceaseds arteries the accused sent Raghav (hereinafter,

28
Page 16, Annexure 6 Report of Investigation u/s 173CrPC.
29
Dayanand v. State of Haryana, AIR 2008 SC 1823.
30
Ramesh v. State, 1979 Cri. L. J 727 at p. 732.
31
Statev.Sikora, 44 N.J. 453 (1965).

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P.W.1) to obtain the medicine.32 The existence of four syringes in33 the room where the

deceased was, shows that, to cause a fatal air embolism, D.W.1 repeatedly gave intravenous

injections from three different syringes filled with air, which amounted to repeated blows to

the deceased. Furthermore, the attempt at the deceaseds life was repeated, as D.W.1 later

administered Angispan, knowing it to be fatal as a result of a cross-reaction or overdose.34

Moreover, there was a plan and collusion between the two co-accused in the form of a

criminal conspiracy35 thus intention cannot be denied.

[B.2.B] The accused had the knowledge that his act would lead to the death.

'Knowledge' has been defined to mean information and skills acquired through experience or

education.36 Therefore, a person who held himself out ready to give medical treatment

impliedly undertakes that he was possessed of the skill and knowledge for the purpose.37

Furthermore, in cases where there is a cross-reaction due to the faulty administration of an

injection, the doctor has been held to be liable.38

In the instant case, not only is the accused a medical student,39 he has also seen and practiced

this procedure before,40 and he therefore had the knowledge that administration of this

32
Page 13, Annexure 5- Statement of Manohar.
33
Annexure 2, Page 8.
34
Infra, note 41.
35
Supra, note 12.
36
Sanjeev Nanda v. State 2009 DLT775.
37
Dr.LaxmanBalkrishna Joshi v.Dr. Trimbak Bapu Godbole, 1969(1) SCR 206.
38
G.D. Jiladia v. Minor Dharmistha Chhotubhai Goswami, 2003 CPJ 381.
39
Page 12, Annexure 5 - Statement of Manohar.
40
Page 4, Factual Matrix , pp 21.

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medicine would lead to a cross-reaction, because he knew which medicines Deceased took;41

and also that the air embolism caused by injecting three or more syringes with air would be

fatal. The accused had impliedly undertaken that he was possessed of this skill and

knowledge when he held himself out ready to give medical treatment by signing a

prescription and sending P.W.1 to obtain the medicine.

Therefore, it is evident from the above that the deceased was murdered by the accused

D.W.1, who injected air equivalent to the volume of three or more syringes in order to kill the

deceased and later repeated his attempt on the deceaseds life by taking advantage of his skill

and knowledge to administer a medicine that would cross-react, or gave it in a fatal quantity.

Thus, these facts circumstantially establish, beyond all reasonable doubt, the guilt of D.W.1

by proving that, both, the actus reus and mens rea to commit the crime were present.

[C] MANOHAR IS LIABLE FOR FORGERY OF THE PRESCRIPTION

In the case of Daniel Hailey Walcott v. State,42 the intention behind committing an offence

under this Sec.463 was emphasized upon. Thus, it is clear from the definition of the Sec. 463

that apart from making of a false document or false electronic record the person should intend

to cause damage or injury either to public or to any person.43 Execution of a document is also

part of making a false document as under Sec.463.44

In the instant matter, the only reason for writing the medicines name on the prescription of

Dr. Choudhary was to procure the medicine and, thereby commit murder with the medicine

41
Page 4, Factual Matrix, pp 17,
42
Daniel Hailey Walcott v. State, AIR 1968 Mad349.
43
R.R. Diwakar v. B. Guttal, 1975 Cr LJ 90.
44
Dickinsv. Gill, 1896 (2) QB 310.

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Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 9

obtained from the forged prescription. The intention to cause harm is evident in D.W.1s act

of sending Raghav (hereinafter, P.W) for procuring the medicine with the forged prescription,

thus allowing for time to attempt the murder of the deceased.

CHARGE IV & V: WHETHER ACCUSED ARE GUILTY OF IDENTITY THEFT

It is humbly placed before the Honble Court that D.W.1 and D.W.2 are guilty of offenses

under Sec.34 r/wSec.465 of Bharat Penal Code and Sections 66 and 66C of Information

Technology Act, 2005 as D.W.2 would be liable for instigating and abetting the crime

caused, [A] andthey had the common intention [B] to defraud and subsequently that led to

identity theft [C].

[A] D.W.2 IS LIABLE FOR ABETTING IDENTITY THEFT U/S 109 OF IPC

It is humbly placed before the Honble Court that a person is said to abet a crime when he

instigates [A.1], conspires [A.2] and intentionally aids [A.3] the commission of the crime.45

[A.1] Abetment by Instigation

Instigating means inciting or urging someone to do some drastic or inadvisable action or to

stimulate the same.46 D.W.2 had admitted to D.W.1his ability to stealthily transfer money

from his fathers account without consent or knowledge.47 D.W.2 himself had admitted that

he had taught D.W.1 to decrypt his Uncles password for fun by tracking the keystrokes.48

45
Sohan Raj v. State, 2008(11) SCC 215, Ranjana Yaki v. State, 2004(12) SCC 521.
46
Sanju v. State, 2002(5) SCC 371.
47
Page 2, Factual Matrix
48
Pg 18 Report of IO u/s 173 of CrPC, 1973

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[A.2] Abetment by Conspiracy

In order to constitute the offense of abetment by conspiracy, there must be a combining of

two or more persons and an illegal act or omission must also take place in pursuance of

conspiracy.49 Conspiracy under Sec.109 of the Bharat Penal Code can be proved by

circumstantial evidence,50 even if the accused is not present at the place of commission of the

crime.51

P.W.1in his statement admitted that he would often find D.W.1 and D.W.2 fiddle with his

fathers desktop computer by connecting D.W.2s laptop to it.52 The act was committed as

D.W.2 and D.W.1 would often embezzle funds from the account of Deceased without his

knowledge or consent.53

[A.3] Abetment by Intentional Aiding

Intentional aiding means to help, assist or facilitate the commission of a crime, promote the

accomplishment thereof, help in advancing or bringing it about or to encourage, counsel or

incite as to its commission.54

In the case of Mohd Farooq Abdul Gafur & Another v. State of Maharashtra55 the accused

were charged with Sec.109 of the Code of 1860 as they had provided the rest of the accused

49
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 AIR SC 876.
50
Noor Mohammad Yusuf v. State of Maharashtra; 1971 AIR SC 885.
51
Rajinder Kumar v. Secretary, Delhi Administration, 1985 AIR SC 1805.
52
Pg 14 Statements Recorded u/s 161 of CrPC 1973
53
Pg 3, Factual Matrix, pp16
54
P. RamanathaAiyer,THE LAW LEXICON 84 (2nd ed., 1997); State v. D. Fetters, Iowa 1972 (202) N.W. 2d
84; Vajruben & Ors v. State of Gujrat, 2015 (III) CCR 34.

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with the weapons and mobile phones aiding them to commit the crime conspired by them in

furtherance of common intention.

In the present case not only did D.W.2 teach D.W.1 how to hack and embezzle fund but also

provided him with the technology (pen drive shaped key logger) to accomplish the crime of

identity theft.56

[B] THE ACCUSED HAD COMMON INTENTION TO COMMIT THE OFFENSE

OF IDENTITY THEFT

To prove common intention two elements must be necessarily proved i.e. there was a

common intention [B.1] and offense was committed in furtherance of the crime [B.2].57

[B.1]There was a common intention

Common intention implies that there should be a prior concert or prior meeting of minds58

and such has to happen prior to the commission of the act of crime.59 Common intention is

proved by necessary implication, and the express agreement need not be proved60 mere

circumstantial evidences is proof enough to prove the existence of the subsisting agreement.61

The accused can be convicted for forgery under Sec.465 read with Sec.34 of the Bharat Penal

Code based on circumstantial evidence.62

55
Mohd.Farooq Abdul Gafur&Anrv. State of Maharashtra, 2010(14) SCC641.
56
Pg 3, Factual Matrix, pp16
57
Shiv Prasad ChunniLal Jain v. State of Maharashtra, AIR 1965 SC 264.
58
PandurangTukia v. State of Hyderabad, AIR 1955 SC 331.
59
ShankarlalKacharabai and Others v. State of Gujrat, AIR 1965 SC 1260;Ram Tahal v. State of Uttar
Pradesh, AIR 1972 SC 254.
60
Sachin v. State, 2008 (3) SCC 390; Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28.
61
Hardeo Singh v. State of Bihar & Others, 2000Crl. L.J. 2978.
62
Deepti Anil Devasthali & Leena Anil Devastnali v. State of Maharashtra, 2009 (111) BomLR 3981; Anant
Chintaman Lagu v. State of Bombay, AIR 1960 SC 500.

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The guidelines for admitting circumstantial evidence was laid down in the ruling of

Mahmood v. State of UP63 and all the criteria mention duly satisfy the present case. (1) The

circumstances must have fully been established by unimpeachable evidence. (2) The

circumstances are of determinative tendency (3) The circumstances are incapable of

explanation on any reasonable hypothesis except that of guilt. Their actions in the present

case are enough to circumstantially prove common intention.

[B.2] Act was committed in furtherance of the crime

To attract the commission of mischief under Sec.34 not only a common agreement but also

participation is necessary in the commission of the offense.64 In the case of Shankarlal

Kacharabhai v. State65 the term furtherance has been interpreted as an act done in

advancement or promotion.66 Any aid or assistance may be regarded as done in furtherance of

the ultimate felony if it is a step taken intentionally for the purpose of effecting felony.67 For

a crime like forgery the accused might not be required to be physically present,68 at the actual

place of occurrence.69 Thus D.W.2 can be held liable for the fraud committed by D.W.1 even

in his absence. Therefore, it is humbly submitted before the Honble Court that D.W.1 and

D.W.2 are jointly and criminally liable as they had the common intention to commit a fraud

and embezzle funds from his uncle.70

63
Mahmood v. State of UP, AIR 1976 SC 69.
64
Sunny Kapoorv.State, 2006 10 SCC 182.
65
Shankarlal Kacharabai and Others v. State of Gujrat, AIR 1965 SC 1260.
66
Dani Singh v. State, 2004 (13) SCC 203.
67
Parasa Raja v. State, 2003 12 SCC 306.
68
Mubarak Ali v. State of Bombay, AIR 1957 SC 837.
69
J.M. Desai v. State of Bombay, AIR 1960 SC 889.
70
Pg 3, Factual Matrix, para 16, Pg 4, Factual Matrix, para 2.

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[C] WHETHER ACCUSED HAD COMMITTED FORGERY U/S 465 OF BPC, 1860

AND 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000

The essential ingredient of the crime of forgery includes criteria like the accused prepared a

false document or electronic record71[C.1], the act was intended for the purpose of fraud or

deceit,72 and the document or electronic record was prepared dishonestly[C.2] and the act

was intended to cause wrongful gain to one and loss to another. Thereby also constituting the

offense under Sec.66C of Information Technology Act, 2000[C.3]

[C.1]The accused prepared a false document or electronic record

It is humbly submitted that making of a false document includessealing and signing on it.73

The document in concern can be given the stature of document or electronic record.74

Provisions relating to admitting accounting entries in account books as evidence have been

amended to include electronic records.75 Moreover as per Bankers Book Evidence Act, 1891

provision relating to admitting copies of books has been amended to written or

electromagnetic form.76

It is further humbly placed before the Honble Court that in this case the account was

encrypted with a password. The process of encryption has been defined as locking a

71
Peoples Patriotic Front v. Birla, 1984CrLJ 545.
72
Indian Bank v. Satyam, 1996 5 SCC 550.
73
In Re:Rasiyat Ali v. Unknown, 1881 ILR (7) Cal 352.
74
RBI REPORT ON INTERNET BANKING (PART 2 OF 2), 22/01/2000,
https://www.rbi.org.in/SCRIPTS/PublicationReportDetails.aspx?UrlPage=&ID=244 (last visited 15th August,
2015); Annexure 1 Clause B.
75
Schedule 2 under Sec.12(4), Information Technology Act, 2000 (Act 21 of 2000).
76
Schedule 3,Information Technology Act, 2000 (Act 21 of 2000).

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communication with a private code,77 and Password has been defined as string of

characters to provide access to computer resources.78 Banking networks use password, PIN or

digital certificate to authenticate clients.79

Moreover in the case of Sartaj v. State80 the aspect of log in and password was clarified

stating that the password provided access to the computer system and the use of ID

with password establishes the users identity and accountability.

Thereby the fact that the password used can and has been used as a seal or signature which

can be forged is established.

[C.2]The document or electronic record was prepared dishonestly or fraudulently

It is humbly placed before the Honble Court that to constitute offense under Sec.465 of the

Code of 1860 the document has to be made fraudulently or dishonestly.81 The word

fraudulently has been interpreted in the context as mere deception or injury82 it implies that

there must be some advantage to one side and corresponding losses to another.83

77
Daniel Bernstien v. United States (Dept. of State), 922F Supp. 1426.
78
Schedule V of The Information Technology (Certifying Authorities) Rules, 2000.
79
RBI REPORT ON INTERNET BANKING (PART 2 OF 2), 22/01/2000,
https://www.rbi.org.in/SCRIPTS/PublicationReportDetails.aspx?UrlPage=&ID=244 (last visited 15th August,
2015).
80
Sartaj v. State,2014(4)JCC3027.
81
Emperor v. Rachappa Yellapa, AIR 1932 Bom 545.
82
Raja Kulkarni v. State of Bombay, 1954 CrLJ 788.
83
Emperor v. Rachappa Yellapa, AIR 1932 Bom 545.

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In the case of Arnish Arora v. State of Kerala,84 the accused were held liable for fraud and

deceit when they dishonestly withdrew money from anothers bank account. D.W.2 and

D.W.1 forged the bank records for transferring funds from Deceaseds accounts to their bank

account. It is therefore humbly submitted that in the present case the situation satisfies all the

elements of forgery including being fraudulent and dishonest.

[C.3] Offense under Sec.66C of Information Technology Act, 2000 is constituted

It is humbly placed before the Honble court that the offense of forgery committed would

also attract conviction under Sec.66C of Information Technology Act. In the present scenario

all the elements of the offence under Sec.66C of Information Technology Act i.e. use of

password85, dishonestly and fraudulently86 has already been placed before this Honble Court.

Sec.66 of the Information Technology Act would also be attracted as D.W.2 and D.W.1

committed the act as prohibited under Sec.43 of the IT Act, 200087 i.e. of accessing computer

system and computer network secured by password, downloaded and extracted data for

fraudulent and dishonest intention.Therefore, it is humbly submitted before the

HonbleSessions Court that the accused D.W.1 and D.W.2 are out rightly liable for the

offenses contended for by the Prosecution and this has been proven beyond reasonable doubt.

84
Arnish Arora v. State of Kerala, 2014 CriLJ 1189.
85
Sartajv.State,2014(4)JCC3027.
86
Arnish Arora v. State of Kerala, 2014 CriLJ 1189.
87
Sec.43, Information Technology Act, 2000 (Act 21 of 2000).

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PRAYER FOR RELIEF

Wherefore, in light of facts stated, issues raised, authorities cited and arguments advanced,

may this Honble Court be pleased to:

1. Convict DW1 for Criminal Conspiracy , Murder and Forgery read under Sections

120B, 302, 465 r/w 34 of Bharat Penal Code and Identity theft under Sections 66 &

66C of Information Technology Act 2005

2. Convict DW2 for Criminal Conspiracy , Murder and Forgery read under Sections

120B, 302, 465 r/w 34 of Bharat Penal Code and Identity theft under Sections 66 &

66C of Information Technology Act 2005

AND/ OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Place: Durg, Xanadu

Date: __ September, 2015

S/d ____________

(COUNSEL ON BEHALFOF THE PROSECUTION)

Memorial on Behalf of Prosecution