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TEAM CODE: 4AUR11

4th AMITY NATIONAL MOOT COURT COMPETITION 2017

Before
THE HONBLE SUPREME COURT OF INDIA,
NEW DELHI

IN THE MATTER OF

Raghvendra Singh Shekhawat and othersAppellant

v.

State of Rajasthan..... Respondent

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TABLE OF CONTENTS PAGE


NUMBER
Index Of Authorities 3
Table of Cases 4-5
List of Abbreviations 6
Statement of Jurisdiction 7
Synopsis of Facts 8 - 10
Issues 11
Summary of Arguments 12 - 13
Arguments Advanced

I - Whether the given grounds are sufficient to decide the guilt of the 14 - 18
accused?
II - What is the evidentiary value of FIR and statements made under 19 - 21
section 161 of Cr.P.C? Can the accused be punished only on basis of
these evidences?
III - What is the evidentiary value of expert opinion? Can an accused be 22 - 24
punished on the basis of Post Mortem Report?
IV Whether Section 304-B of IPC is applicable or not? 25 - 27
Conclusion 28
Prayer 29

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INDEX OF AUTHORITIES
STATUTES:

1. The Constitution of India, 1950


2. The Code of Criminal Procedure, 1973 (2 of 1974)
3. The Indian Evidence Act, 1872 (1 of 1872)
4. The Indian Penal Code, 1860 (45 of 1860)

BOOKS REFERRED:

1. II Baktu Lal, Baktu Lals commentary on the Indian Penal Code,1960, (3rd ed. 2016)
2. Dr. Nageswara Rao, The Indian Evidence Act, (2nd ed. 2015)
3. Dr. Shakil Ahmad Khan, Rathanlal & Dhirajlal The Law of Evidence, (24th ed. 2016)
4. I Durga Das Basu, Criminal Procedure Code, 1973, (5th ed. 2014)
5. II Justice M.L.Singhal, Sohonis Code of Criminal Procedure, (21st ed. 2014)
6. I, II, III, VII Justice M.L.Singhal, R.P Kathuria Supreme Court on Criminal Law
(1950-2013) (8th ed. 2014)
7. K.D. Gaur, Textbook on Indian Penal Code, (5th ed. 2015)
8. K.N Chandrasekharan Pillai, R.V. Kelkars Criminal Procedure, (6th ed. 2015)
9. P.L Malik, Criminal Court Handbook, (21st ed. 2014)
10. I, II Ram Jethmalani and D.S.Chopra, The Indian Penal Code (1st ed. 2014)
11. Rathanlal & Dhirajlal, The Indian Penal Code, (32nd ed. 2014)
12. I Surendra Malik and Sudeep Malik, Supreme Court on Criminal Procedure Code and
Criminal Trial, (1st ed. 2011)
13. II Surendra Malik & Sudeep Malik, Supreme Court on Penal Code, (2nd ed. 2015)

WEBSITES REFERRED:

1. http://judis.nic.in/
2. http://www.scconline.com
3. http://supremecourtofindia.nic.in/

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TABLE OF CASES

1. Babu Singh v. State of Punjab, (1996) 8 SCC 699


2. Balakrishna Das Agarwal v. Radhadevi Smt, AIR 1996 SC 2184
3. Brajendra Singh v. State of Madhya Pradesh, AIR 2012 SC 1552
4. C.Chenga Reddy and Ors v. State of A.P (1996) 10 SCC 193
5. Damodar Prasad Chandrikaprasad v. State of Maharashtra, (1972) 1 SCC 107
6. Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263
7. Govindraju@Govinda v. State by Sriramapuram Police Station & Anr (2012) 4 SCC
722
8. G.Parshwanth v. State of Karnataka, (2010) 8 SCC 593
9. Hazari Lal v. State (Delhi administration) (1980) 2 SCC 390
10. Ishwari Prasad Misra v. Md.Isa, AIR 1963 SC 1728
11. Jiten Besra v. State of West Bengal (2012) 2 SCC (Cri) 438
12. John Pandian v. State of Tamil Nadu represented by Inspector of Police, Tamil Nadu,
(2010) 13 SC 284
13. Madhan Gopal v. Naal dubey (1992) 2 SCC 204
14. Mani v. State, AIR 1993 SC 2453
15. Mehraj Singh (L/Nk) v. State of Uttar Pradesh (1994) 5 SCC 188
16. Mrinal Das v. State of Tripura (2011) 9 SCC 479
17. Munshi Singh v. State of Bihar, AIR 2001 SC 3031
18. Mustafa Shahadal Shaikh v. State of Maharashtra, AIR 2013 SC 851
19. Padala Veera Reddy v. State of Andhra Pradesh and Ors, AIR 1990 SC 79
20. Pandurang Chandrakant Mhatre v. State of Maharashtra (2009) 10 SCC 773
21. Parichhat v. State of Madhya Pradesh (1972) 4 SCC 694
22. Raghunath v. State of Haryana (2003) 1 SCC 398
23. Ramesh Chandra Agarwal v. Refency Hospital Limited, (2009) 9 SCC 709
24. Ram Swaroop v. State of Rajasthan, AIR 2004 SC 2943
25. Rohtash v. State of Haryana, AIR 2004 SC 1747
26. Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570
27. S.Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184
28. State of Bombay v. Rusy Mistry, AIR 1960 SC 391

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29. State of Kerala v. Babu, AIR 1999 SC 2161


30. State of UP v. Babul Nath (1994) SCC (cri) 1585
31. Surinder Kaur v. State of Haryana, AIR 2004 SC 1747
32. Surjit Singh v. State of Punjab, AIR 1992 SC 1389
33. Sushil Suri v. Central Bureau of Investigation (2011) 5 SCC 708
34. Thulia Kali v. State of Tamil Nadu, AIR 1973 SC 501

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LIST OF ABBREVIATIONS

AIR All India Reporter


Anr Another
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C Code of Criminal Procedure
ed. Edition
IPC Indian Penal Code
PW Prosecution Witness
Ors Others
S. Section
SC Supreme Court
SCC Supreme Court Cases
v. Versus

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STATEMENT OF JURISDICTION

It is humbly submitted that the appellant has approached the Honble Supreme Court
invoking its jurisdiction under Article 136 (Special Leave Petition) of The constitution of
India, 19501

The present memorandum sets forth the facts, issues, contentions and arguments of the
present case.

1
Special Leave to appeal by the Supreme Court.- (1) Notwithstanding anything in this chapter, the Supreme
Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence
or order in any cause or matter passed or made by any court or tribunal in the territory of India.

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SYNOPSIS OF FACTS

On 1st January, 2013 Gauri got married to Raghvendra Singh Shekhawat and were living at a
village called Isarda in District Tonk in the State of Rajasthan.
On 1st October, 2013 Gauris father-in-law Bheem Singh Shekhawat died due to heart attack
and the situation prevailing in the home changed.
On 20th February, 2015 Gauris father Charan Singh Rathore living in Jodhpur got a call from
Raghvendra Singh Shekhawat at 10:10 pm saying that Gauri had committed suicide at 7:00
am that day.
After receiving the news, The Charan Singh Rathore and his entire family reached Gauris
home on the 21st February 2015. They found that Raghvendra Singh Shekhawat and his
family were getting ready to take Gauris body for funeral without informing the police about
the suicide.
Leelawati, Mamta and Tara found bruises on the face and hands of the deceased.

THE FOLLOWING STATEMENTS WERE MADE BY CHARAN SINGH RATHORE


TO THE POLICE IN HIS FIR:

After the death of Bheem Singh Shekhawat, Gauri never sounded happy on the phone class
and never visited her parents. On 10th December, 2013 Gauri called Leelawati asking her to
bring 20 lakhs from Jodhpur for establishing the electronic products showroom for the Dev
Singh. This demand was fulfilled by selling their ancestral property of Churu.
.On 10th January, 2014 they again demanded a motor bike through Gauri and this demand
was also fulfilled.
On 10th March, 2014 Gauri was under pressure to give birth to a male child and was
threatened that she will not be allowed to come back if a girl child is born.
On 15th May 2014 A girl child was born to Gauri. Raghvendras family refused to take her
back.
Finally on 15th October 2014 Dev Singh and Nidhi came to Jodhpur and took her back home.
It now became difficult for Gauris family to communicate to Gauri as her phone was always
switched off, and her social networking accounts were deleted.

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THE STATEMENT RECORDED BY THE POLICE UNDER SECTION 161 OF


CRIMINAL PROCEDURE CODE, 1973:

Charan Singh Rathore stated that he got the call at 10:10 pm on 20th February, 2015 regarding
Gauris suicide, but Gauri had committed suicide at 7:00am of the same day. So he alleged
that Gauri has been murdered by her in-laws because he is suspicious of the 14 hour call gap
and the act trying to conduct the funeral without informing the police.
Leelawati along with the other female members of the family had seen the bruises on the
body of Gauri.
Mamta stated that Gauri called her at 07.45am on the same day with Raghavendra Singh
Shekhawats phone, but the call was disconnected within a minute. So, it is not possible for
her to call at 07.45 am if she had died at 07.00am. The call details were also shown.
The photocopy of the documents regarding the sale of ancestral property in Churu and buying
of the bike were submitted to the police

DURING POLICE INVESTIGATION, RAGHAVENDRAS FAMILY MADE THE


FOLLOWING STATEMENTS:

Raghvendra Singh Shekhawat gave the statement that he had gone for a morning walk at 6:00
am and he found Gauris dead body on the bed with a bottle of sleeping pills on her hand
upon return. He was at a great shock at that time and called up the
Charan Singh Rathore only when he came back to his senses.
On 18th February 2015, Raghvendra Singh Shekhawat had an argument with Gauri over the
issue of moving separately from the family, and when he refused Gauri injured herself with
the wall of the room and got bruises on her body. The same argument continued on the
morning of 20th February 2015, this time she threatened that she will commit suicide and so
he went out for a morning walk. He further stated that Gauri always demanded expensive
gifts.
Yashodhara Devi gave the statement that Gauri demanded to buy a diamond necklace for the
opening of the showroom, when refused she said that she will take the amount from her
father.
Dev Singh stated that Gauri never did any household work, and when asked to do so she
injures herself and threatens to lodge a police compliant on grounds of domestic violence.

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Nidhi stated that he found Gauri fighting with his mother one day during her pregnancy and
left to her fathers place in Jodhpur all alone. Later when she was asked to return she put
forth the condition that she will return only if the Raghvendra Singh Shekhawat was willing
to shift from Isarda.
POST MORTEM REPORT:
The time of death is between 06:00am to 08:00am approx.
The cause of death is only intake of excessive sleeping pills
The bruises have been found on many parts of the deceased body, but it is not clear if
the bruises have been caused by the deceased herself or by some other person.
The bruises were approximately 12 hours older than the time of death.
The investing officer submitted his report before the court and the court of session has framed
the charges under sections 302,304-B, and 120-B read with section 34 of Indian Penal Code
against the deceased husband Raghvendra, her brother-in-law Dev Singh, her mother-in-law
Yashodhara Devi, and her sisters-in-law Nidhi and Anita.
The sessions court found them guilty on the basis of the Police report, FIR, statements made
under section 161 and the Post Mortem Report.
Accused had filed an appeal before the Rajasthan High court and high court upheld the
decision of Session Court.

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STATEMENT OF ISSUES

I
Whether the given grounds are sufficient to decide the guilt of the accused?

II
What is the evidentiary value of FIR and statements made under section 161 of
Cr.P.C? Can the accused be punished only on basis of these evidences?

III
What is the evidentiary value of expert opinion? Can an accused be punished
on the basis of Post Mortem Report?

IV
Whether Section 304-B of IPC is applicable or not?

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SUMMARY OF ARGUMENTS

I
WHETHER THE GIVEN GROUNDS ARE SUFFICIENT TO DECIDE THE GUILT
OF THE ACCUSED?

It is humbly submitted before the Honble Supreme Court that the accused is not guilty of
murder. To prove murder, the circumstantial evidences must point to the guilty of the accused
beyond reasonable doubt. And also criminal conspiracy and common intention must be
established beyond reasonable doubt. But the circumstances of the case fails to prove the
conspiracy and common intention. The chain of circumstantial evidence is also not
established beyond reasonable doubt. Therefore, the above grounds cannot prove the guilty of
the accused.

II
WHAT IS THE EVIDENTIARY VALUE OF FIR AND STATEMENTS MADE
UNDER SECTION 161 OF CR.P.C? CAN THE ACCUSED BE PUNISHED ONLY ON
BASIS OF THESE EVIDENCES?

It is humbly submitted before The Honble Supreme Court that the information given to the
police under s.154 of Cr.P.C and the statements recorded under s.161 are not substantive
evidence which can prove the guilt of the accused and it is not binding in the court of law.
Furthermore, there has been a delay in the lodging of FIR which diminishes the veracity of
the contents in it. Therefore, the accused cannot be punished only on the basis of such
statements.

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III
WHAT IS THE EVIDENTIARY VALUE BASIS OF POST MORTEM REPORT?
CAN AN ACCUSED BE PUNISHED ON THE BASIS OF POST MORTEM REPORT?

It is humbly submitted before the Honble Supreme Court that the evidence of an expert is in
the nature of opinion evidence and It is advisory in nature and is neither conclusive nor
substantive. The expert evidence would not become evidence automatically. The weight of
the evidence is dependent on the correctness of the report, the reasons given and the expertise
in the field. And Also the post mortem report would not be admissible as evidence as it is not
a substantive evidence in the court of law. The doctor who has conducted the post mortem
made his report vague, uncertain and indefinite which does not give the proper reasoning for
the bruises found deceased. Hence, the accused cannot be punished on the basis of post-
mortem report and the opinion of expert.

IV
WHETHER SECTION 304-B OF IPC IS APPLICABLE OR NOT?

It is humbly submitted before the Honble Supreme Court that the appellant has not
committed the offence of dowry death. The alleged cruelty caused to the deceased and the
proximity between the alleged cruelty and the death of the deceased cannot be established.
Since the main ingredients of the dowry death cannot be proved, the offence of dowry death
cannot be maintained. Therefore, section 304-B of IPC is not applicable.

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ARGUMENTS ADVANCED

I
WHETHER THE GIVEN GROUNDS ARE SUFFICIENT TO DECIDE
THE GUILT OF THE ACCUSED?

1.1 LACK OF CIRCUMSTANTIAL EVIDENCE

The evidence which gives rise to a logical inference that such a fact does exist, is called
Circumstantial Evidence.2

It was laid down that when a case rests upon circumstantial evidence, such evidence must
satisfy the following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of
the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was committed by the
accused and none else; and

(4) The circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence."3

The prosecution must prove its case beyond any reasonable doubt. Such is not the burden on
the accused.4

Therefore, in the instant case, the burden of proof of the offence lies on the prosecution.

2
Dr. Shakil Ahmad Khan, The Law of Evidence, 34 (23 rd Edition 2014)
3
Padala Veera Reddy v. State of Andhra Pradesh and Ors AIR 1990 SC 79
4
Govindaraju @ Govinda v. State by Srirampuram Police Station & Anr. (2012) 4 SCC 722

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Circumstances from which the conclusion of guilt is to be drawn should be fully established
and should also be consistent with only one hypothesis, i.e., the guilt of the accused. The
circumstances should be conclusive and provided by the prosecution.5

In a case based on circumstantial evidence, the settled law is that the circumstances
from which the conclusion of guilt is drawn should be fully proved and such circumstances
must be conclusive in nature. Moreover, all the circumstances should be complete and there
should be no gap left in the chain.6

In cases where evidence is of a circumstantial nature the circumstances from which


the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each
fact sought to be relied upon must be proved individually. However, in applying this principle
a distinction must be made between facts called primary or basic on the one hand and
inference of facts to be drawn from them on the other. In regard to proof of primary facts , the
court has to judge the evidence and decide whether that evidence proves a particular fact and
if that fact is proved, the question whether the fact leads to an inference of guilt of the
accused should be considered in dealing with this aspect of the problem, the doctrine of
benefit of doubt applies although there should not be any missing links in the case yet it is not
essential that each of the links must appear on the surface of the evidence adduced and some
of these links may have to be inferred from the prove facts. In drawing these inferences, the
court must have regard to the common course of natural events and to human conduct and
their relations to the facts of the particular case. The court thereafter has to consider the effect
of proved facts.7

In the instant case, there is no ground to establish any reason for the appellant to
murder the deceased. Therefore, there is no circumstance that could relate the appellant with
the offence.
Thus circumstantial evidences do not prove the guilt of the accused. Since the
circumstantial evidence is not proved beyond the reasonable doubt, the murder cannot be
established. So the theory murder should be set aside. And also in Jiten Besra v. State of West
Bengal8 case it was established that once it is clear and once it is found that the circumstances

5
Brajendra Singh v. State of Madhya Pradesh, AIR 2012 SC 1552
6
C.Chenga Reddy and Ors. v. State of Andhra Pradesh (1996) 10 SCC 193
7
G. Parshwanath vs. State of Karnataka (2010) 8 SCC 593
8
(2010) 2 SCC (Cri) 438

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could not point out towards the guilt of the accused, without any other inference being
probable, the accused must get the benefit of doubt.

1.2 ESTABLISHMENT OF SUICIDE


An eminent psychiatrist, Robert J. Kastenbaum where in his 6 book Death, Society and
Human Experience has analysed the causes, the circumstances, the moods and emotions
which may drive a person to commit suicide. The learned author has written that a person
who is psychotic in nature and suffers from depression and frustration is more prone to
commit suicide than any other person. The victim of suicide may also be the victim of self-
expectations that have not been fulfilled. The sense of disappointment and frustration may
have much in common with that experienced by the person who seeks revenge through
suicide

In the instant case, it is to be noted that the deceased was constantly pressurizing the
appellant for shifting to Tonk as a separate family. She was misbehaving with the entire
family. She was always fighting and injured herself and threatened that she would lodge a
police complaint for domestic violence. This shows that she was disappointed mentally
instable. So the theory of suicide can come into play. This gives the appellant the benefit of
doubt.

1.3 BENEFIT OF DOUBT FOR THE ACCUSED

When two incredible versions confront the court, the court has to give benefit of doubt to the
accused and it is not safe to sustain the conviction.9

In the instant case since two versions such murder and suicide is contended, the
accused is entitled for benefit of doubt.

If two views are possible, the one in favour of the accused and the other adversely
against it, the view favouring the accused must be accepted.10

9
State of Maharashtra v. Sanjay D. Rajhans (2004) 13 SCC 314
10
Raghunath v. State of Haryana (2013) 1 SCC 398

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There exist two theories namely murder and suicide. Suicide is in favour of the
appellant and murder is adversely against the appellant. Therefore, the suicide theory
favouring the accused must be accepted.

1.4 NON-EXISTENCE OF CRIMINAL CONSPIRACY

DEFINITION OF CRIMINAL CONSPIRACY


When two or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy: Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.11

INGREDIENTS OF CRIMINAL CONSPIRACY


The essential ingredient of the offence of criminal conspiracy is the agreement to commit
an offence. Mere proof of such an agreement is sufficient to establish criminal conspiracy.12

Circumstances in a case, when taken together on their face value, should indicate
meeting of minds between the conspirators for the intended object of committing an illegal
act or an act which is not illegal, committed by illegal means. A few bits here and a few bits
there on the prosecution relies cannot be held to be adequate for connecting the accused with
the commission of the crime for criminal conspiracy. It has to be shown that all means
adopted and illegal acts done were in furtherance of the object of conspiracy hatched.
Circumstances relied for the purposes of drawing an inference should be prior in point of
time than the actual commission of the offence in furtherance of the alleged conspiracy.13

The accused had informed the family of the deceased about the death. The fact that
the accused family has not absconded after the death and no weapon was found in the spot
questions the hypothesis of conspiracy. Therefore, the criminal conspiracy cannot be
established beyond reasonable doubt.

11
The Indian Penal Code, 1860, 45 of 1860
12
Sushil Suri v. Central Bureau of Investigation (2011) 5 SCC 708
13
John Pandian v. State of Tamil Nadu Rep. by Inspector of Police, Tamil Nadu (2010) 13 SC 284

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1.5 NON ESTABLISHMENT OF COMMON INTENTION

ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF COMMON


INTENTION.
When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him
alone.14

INGREDIENTS
To attract the application of section 34 the following three conditions must exist, viz.,
(1) A criminal act must be done by several persons;
(2) There must be a common intention of all to commit that criminal act;
(3) There must be participation of all in the commission of the offence in
furtherance of that common intention.15

The burden lies on prosecution to prove that actual participation of more than one
person for commission of criminal act was done in furtherance of common intention at a prior
concert.16

In the instant case, there is no proof to show the involvement of the petitioners family
in the alleged murder. According to the statement of the appellant, his brother and his sister
were not in the home during the incident Even according to the statement of the deceaseds
father recorded under section 161 of CRPC, there was no accusation about the relatives of the
petitioners family members causing any cruelty. So the common intention or the
participation of the appellants cannot be established beyond reasonable doubt.

It is therefore submitted that the above grounds are not sufficient to prove the guilty
of the accused.

14
The Indian Penal Code, 1860, 45of 1860
15
Parichhat State of Madhya Pradesh (1972) 4 SCC 694
16
Mrinal Das v. State of Tripura (2011) 9 SCC 479

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II
WHAT IS THE EVIDENTIARY VALUE OF FIR AND STATEMENTS
MADE UNDER SECTION 161 OF CR.P.C? CAN THE ACCUSED BE
PUNISHED ONLY ON BASIS OF THESE EVIDENCES?

A FIR means the information, by whomsoever given, to the officer in charge of police
station in relation to the commission of a cognizable offence and which is first in point of
time and on the strength of which the investigation into that offence is commenced17

2.1 EVIDENTIARY VALUE OF FIR:

It is settled law that a FIR is not substantive evidence, that is to say, it is not evidence of the
facts that it mentions.18

FIR is not a substantive evidence. It can be used only to corroborate or contradict the
maker thereof.19 FIR is not an encyclopaedia of the entire case and is not even a substantive
piece of evidence. It has value, no doubt, But only for the purpose of corroborating or
contradicting the maker.20

2.2 EFFECTS OF DELAY IN LODGING THE FIR:

Delay in lodging FIR often results in embellishment, which is creature of an afterthought. On


account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also
creeps in of the introduction of a coloured version.21

The first information report in a criminal case is an extremely vital and valuable piece
of evidence for the purpose of corroborating the oral evidence adduced a the trial The object
of insisting upon prompt lodging of the report to the police in respect of commission of an

17
State of Bombay v. Rusy Mistry, AIR 1960 SC 391
18
Damodar Prasad Chandrikaprasad v. State of Maharashtra (1972) I SCC 107
19
State of UP v. Babul Nath, 1994 SCC (Cri) 1585; Pandurang Chandrakant Mhatre v. State of Maharashtra
(2009) 10SCC 773; Babu Singh v. State of Punjab (1996) 8 SCC 699
20
Surjit Singh v. State of Punjab AIR 1992 SC 1389
21
Mehraj Singh (L/Nk.) v. State of Uttar Pradesh (1994) 5 SCC 188

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offence is to obtain early information regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part played by them as well as, the names
of eye witnesses present at the scene of occurrence. Delay in lodging the first information
report quite often results in embellishment which is a Creature of afterthought. It is therefore
essential that the delay in lodging the report should be satisfactorily explained Held, the
accused appellant was acquitted.22

In the instant case, it is found that there is a considerable delay in lodging the FIR,
this is the result of embellishment and creature of afterthought. It was not lodged right after
receiving the information of death of the victim. The veracity of the FIR must be proved. It is
submitted that the evidentiary value of FIR has been demolished on the ground of delay in
lodging the FIR.

2.3 PROVING THE CONTENTS OF FIR:

Mere production of documents is not enough. Contents of documentary evidence has to be


proved by examining witnesses. FIR in itself is not an evidence without actual proof of facts
stated therein.23

Since the contents of the FIR has not been examined in the instant case, the FIR
cannot be relied upon.

Hence, it is submitted that the FIR is not a conclusive evidence to prove the guilt of
the accused and the accused cannot be punished on the basis of FIR.

2.4 EVIDENTIARY VALUE OF THE STATEMENTS MADE UNER S.161 OF Cr.P.C:

The statement of a witness under S.161 Cr.P.C is a previous statement and can be used for the
purpose of contradiction or omission of the trial.24Undue importance must should not be
attached to the statements made during the course of investigation and recorded under S.161,

22
Thulia Kali v. State of Tamil Nadu, AIR 1973 SC 501
23
Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570
24
State of kerala v. Babu, AIR 1999 SC 2161

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Cr.P.C. A statement recorded under S.161, Cr.P.C cannot be treated as evidence in criminal
trial but may be used for the limited purpose of impeaching the credibility of the witness25

Even though the omission or contradiction made by the witness in a statement under
S.161 Cr.P.C is not evidence, the court has power to look into this for consideration to find
out the said contradiction and the same can be used to aid the court in favour of the accused.26
A statement recorded by police officer during investigation is neither given an oath nor is it
tested by cross-examination. According to the law of evidence such statement is not evidence
of the facts stated therein and therefore it is not considered as substantive evidence.27

It is therefore submitted that the information given to the police under S.154 of Cr.P.C
and the statements recorded under S.161 are not substantive evidence which can prove the
guilt of the accused and it is not binding in the court of law. The accused cannot be punished
only on the basis of such statements.

25
Ram Swaroop v. State of Rajasthan, AIR 2004 SC 294
26
I Durga Das Basu, Criminal Procedure Code, 1973 871 (5 th ed. Lexis Nexis) (2014)
27
Hazari Lal v State (Delhi administration.) (1980) 2 SCC 390

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III
WHAT IS THE EVIDENTIARY VALUE OF EXPERT OPINION? CAN
AN ACCUSED BE PUNISHED ON THE BASIS OF POST MORTEM
REPORT?

S.45 OF THE INDIAN EVIDENCE ACT,1872 STATES:


Opinion of experts When the court has to form an opinion upon a point of foreign law, or
science or art, or as to identify of handwriting [ or finger impressions], the opinions upon that
point of persons especially skilled in such foreign law, science or art, are relevant facts.
Such persons are called experts28

3.1 EVIDENCIARY VALUE OF EXPERT OPINION:

A medical evidence is only an evidence of opinion and it is hardly decisive. Its not
substantive evidence29. A court is not bound by the evidence of the experts which is to a large
extent advisory in nature30
The value of expert opinion rests on the facts on which it is based, his competency for
forming a reliable opinion and also the validity of the process by which conclusion is
reached, thus, the idea that is proposed in its crux means that the importance of an opinion is
decided on the basis of the credibility of the expert and the relevant facts supporting the
opinion so that its accuracy can be crosschecked. Therefore, the emphasis has been on the
data on which opinion is formed. The same is clear from the following inference:

Mere assertion without mentioning the data or basis is not evidence, even if it comes
from an expert. Where the expert gives no real data in support of their opinion, the
evidence even though admissible, maybe excluded from consideration at the correct
value31.

The expert evidence is a weak type of evidence and the courts do not consider it
conclusive. It is therefore, not safe to reply upon it without seeking independent and reliable

28
The Indian Evidence Act, 1872, No.1, Acts of Parliament, 1872
29
Mani V. state AIR 1993SC 2453 CrLJ 2530
30
Madhan gopal v Naal Dubey (1992) 3 SCC 204
31
Ramesh Chandra Agarwal v. refency hospital limited, (2009) 9 SCC 709

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corroboration32. The competency of an expert is to be established, and he should be subjected


to cross-examination. Experts opinion is not straight away admissible without examining
him.33

The view of the expert has to find due weightage in the mind of the court, it has to be
well authored and convincing. An expert is expected to prepare his report with appropriate
reasoning and not leave everything to the imagination of the court34.

In the instant case it is evident that the report is not backed up with proper reasoning
as the cause of the bruises found in the victims body is not proved. The doctor who has
conducted the post mortem made his report vague, uncertain and indefinite.

3.2 EVIDENTIARY VALUE OF POST-MORTEM REPORT:

Mere production of the post-mortem report and the statement that its content were true, by
itself, would not prove its contents in the absence of specific reference to its contents. The
post mortem report is a document which by itself is not a substantive evidence. It is the
doctors statement in the court which has the credibility of substantive evidence and not the
report, which in normal circumstances ought to be used only for refreshing the memory of the
doctor witness or to contradict whatever he may say from the witness box.35

Merely because a post-mortem report is obtained from the custody of the Government
Hospital, its genuineness is not automatically proved. Non-examination of its author would
be fatal to the prosecution case.36

Experts evidence is not conclusive.37 It is the duty of the court to come to a


conclusion on a question of fact, after considering the entire evidence including that of the
expert; the experts evidence is only a piece of evidence and is not conclusive.

32
S.Gopal Reddy v. State of A.P., AIR 1996 SC 2184
33
Balakrishna Das Agarwal v. Radhadevi smt, AIR 1989 All 133
34
Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263
35
Munshi Singh v. State of Bihar (2002) 1 SCC 351 (para 6) : AIR 2001 SC 3031: 2001 Cr LJ 4708
36
Dr. Shakil Ahmad Khan, The Law of Evidence, 898 (24 th ed. 2016)
37
Ishwari Prasad Misra v. Md. Isa, AIR 1963 SC1728

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It is therefore submitted in the instant case that The evidence of an expert is in the
nature of opinion evidence and It is advisory in nature and is neither conclusive nor
substantive. The expert evidence would not become evidence automatically. The weight of
the evidence is dependent on the correctness of the report, the reasons given and the expertise
in the field. And Also the post mortem report would not be admissible as evidence as it is not
a substantive evidence in the court of law. Hence, the accused cannot be punished on the
basis of post-mortem report and the opinion of expert.

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IV
WHETHER SECTION 304-B OF IPC IS APPLICABLE OR NOT?

DOWRY DEATH

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such death shall be called
dowry death, and such husband or relative shall be deemed to have caused her death.38

ESSENTIALS FOR DOWRY DEATH:


a) Death of a woman should be caused by burns or by bodily injury or otherwise than under
normal circumstances.
b) Death should have occurred within 7 years of marriage
c) The woman must have been subjected to cruelty or harassment by her husband or any
relative of her husband.
d) Cruelty or harassment should be for or in connection with the demand for dowry.
e) Cruelty or harassment should have been meted out to the woman before her death.39

4.1 DEMAND OF MONEY FOR BUSINESS NOT A DOWRY

Definition of dowry dowry means any property or valuable security given or agreed to be
given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by a other person, to either party to the
marriage or to any other person;

38
The Indian Penal Code, 1860, 45 of 1860
39
K.D. Gaur, Textbook on Indian Penal Code 554-555 (5th ed. 2014)

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at or before or after the marriage us consideration for the marriage of the said parties, but
does not include dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.40

The demand of money establishing business is not necessarily a dowry demand.41

In Charan Singhs (deceaseds father) statement, he has said that deceaseds mother-in-law
asked her to bring 20 lakhs from Jodhpur for establishing the electronic products showroom.
In this regard even if it was proved that dowry was demanded, the money was demanded for
establishing business which cannot be considered as a dowry demand.

4.2 NO PROXIMITY BETWEEN ALLEGED DOWRY DEMAND AND DEATH OF


THE DECEASED

To attract the provisions of Section 304B, one of the main ingredients of the offence which is
required to be established is that soon before her death she was subjected to cruelty or
harassment for, or in connection with the demand for dowry. The expression soon before
her death used in Section 304B IPC and Section 113B of the Evidence Act is present with
the idea of proximity test.. Though the language used soon before her death, no definite
period has been enacted and the expression soon before her death has not been defined in
both the enactments. Accordingly, the determination of the period which can come within the
term soon before her death is to be determined by the courts, depending upon the facts and
circumstances of each case. However, the said expression would normally imply that the
interval should not be much between the concerned cruelty or harassment and the death in
question. In other words, there must be existence of a proximate and live link between the
effect of cruelty based on dowry demand and the concerned death. If the alleged incident of
cruelty is remote in time and has become stale enough not to disturb the mental equilibrium
of the woman concerned, it would be of no consequence.42

Where there was some alleged harassment for lack of dowry about 2-1/2 years before death,
held that it was not sufficient ground to hold appellants guilty of offence.43

40
The Dowry Prohibition Act, 1961, 28 of 1961
41
Rohtash v. State of Haryana, AIR 2012 SC 2297
42
Mustafa Shahadal Shaikh v. State of Maharashtra, AIR 2013 SC 851
43
Surinder Kaur v. State of Haryana, AIR 2004 SC 1747

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In his statement Charan Singh (deceaseds father) has stated that the petitioners family has
demanded dowry on 10th December, 2013 and also on 10th January, 2014. Gowri (deceased)
died on 20th February, 2015. To attract the provisions of Section 304B, it is required to
establish that soon before her death the deceased was subjected to cruelty or harassment
for, or in connection with the demand for dowry. But in this case the time gap between the
alleged dowry demand and the death of the deceased is more than a year.

4.3 NO CRUELTY CAUSED BY THE PETITIONERS FAMILY TO THE


DECEASED ON ACCOUNT OF DOWRY

Husband or relative of husband of a woman subjecting her to cruelty


Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine.
Explanation. For the purpose of this section, cruelty means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)
of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or is
on account of failure by her or any person related to her to meet such demand.44

There is no fact to prove that the deceased Gauri, was subjected to cruelty by the petitioners
family with respect to the demand of the dowry.

Since there is no proof of alleged cruelty caused to the deceased on account of dowry and
there is no proximity between the alleged cruelty and the death of the deceased, the
contention of dowry death should not be entertained. Therefore, section 304-B is not
applicable.

44
The Indian Penal Code, 1860, 45 of 1860

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CONCLUSION

It is humbly submitted before the Honble Supreme Court that the given that the accused is
not found guilty for murder and criminal conspiracy, and more over the theory of suicide is
justified. The circumstantial evidence fails to prove guilt of accused beyond reasonable doubt
and hence they are entitled for benefit of doubt.
The Information given to the police under S.154 of Cr.P.C and the statements recorded under
S.161 are not substantive evidence which can prove the guilt of the accused and it is not
binding in the court of law. And also, the evidence of an expert is advisory in nature and is
neither conclusive nor substantive. The weight of the evidence is dependent on the
correctness of the report, the reasons given and the expertise in the field. And Also the post
mortem report would not be admissible as evidence as it is not a substantive evidence in the
court of law. The accused cannot be punished on the basis of post-mortem report and the
opinion of expert.
The main ingredients of the dowry death such as alleged cruelty, proximity between the
alleged dowry demand and the death of the deceased cannot be established. Thus the
appellant cannot be held guilty for the offense of dowry death.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully submitted that this Honble High Court may adjudge and declare
that:
1. The accused had not committed the murder of the deceased and the offence of
criminal conspiracy and also that they are not jointly liable.
2. The FIR, the statement made under Section 161 of C.r.PC and the post mortem report is
not a substantive evidence, which is not admissible to punish the accused.

3. The accused had not committed the dowry death of the deceased.
4. The judgement of the Sessions Court and the High Court is not valid and should be set
aside.

The court may also be pleased to pass any other order, which this Honble Court may deem
fit in light of justice, equity and good conscience.

All of which is most respectfully submitted


(Counsel for the Appellant)

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