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Under Section 374 (2) of The Code of Criminal Procedure: in The Hon'Ble Bombay High Court
Under Section 374 (2) of The Code of Criminal Procedure: in The Hon'Ble Bombay High Court
IN THE HON’BLE
IN THE MATTER OF
V.
STATE OF BADARASHTRA………………………RESPONDENT
Submitted By
Saloni Agrawal
Shubham Kumar Sharma
Karan Parihar
Institute of Law, Nirma University
Ahmedabad, Gujarat
-Arguments- 8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION, 2016 -Respondent-
TABLE OF CONTENTS
LIST OF ABBREVIATION………………………….…………….……….……………...iii
INDEX OF AUTHORITIES.…………………….…….………………….………………...v
SYNOPSIS OF FACTS……………………….……………….……….……………...........x
STATEMENT OF ISSUES…………………………………………………………..……xii
SUMMARY OF ARGUMENTS…...…….…………….………………….………..……..1-2
ARGUMENTS ADVANCED…………………………………………………………..3-
PRAYER..……………………………..……………………………………………………44
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
JUDICIAL DECISIONS
18. Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh,
(2010)2SCC748.
19. Nallam Veera Stayanandam and Ors. v. The Public Prosecutor, High Court of A.P.,
2004(2)ACR1282(SC).
21. Nemichand Jain v. Supt. of Central Excise and Customs, (1963) 2 CriLJ
27. Smt. Shanti and Anr. v. State of Haryana, AIR 1991SC 1226.
40. Wazir Chand and Anr. v. State of Haryana, AIR 1989SC378. P 3047 IPC
DIGESTS, LEXICONS
8. DURGA DAS BASU, CRIMINAL PROCEDURE CODE, 1973, LEXIS NEXIS, VOL. 2
(5th ed. 2014).
12. JUSTICE C.K. THAKKER & MRS. M.C. THAKKER, LAW OF EVIDENCE,
WHYTES & CO., VOL. 1 (2013).
13. JUSTICE M.L. SINGHAL & SABIHA, AN ANALYTICAL AND EXHAUSTIVE
COMMENTARY ON INDIAN PENAL CODE, 1860, PREMIER PUBLISHING CO.,
VOL. 1 (2nd ed. 2007).
15. M.R. MALLICK, A.N. SAHA’S CRIMINAL REFERENCE, EASTERN LAW HOUSE
(6th ed. 2009).
16. R.C. GOEL & RAJIV RAHEJA, HINTS AND TRICKS ON CRIMINAL LAW,
CAPITAL (INDIA) (1st ed. 2010).
18. RAM JETHMALANI & D.S. CHOPRA, THE INDIAN PENAL CODE, THOMSON
REUTERS, VOL. 1 (1st ed. 2014).
23. S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS, OL. 2 (10 th
ed. 2014).
24. S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS, VOL. 1
(11th ed. 2015).
25. S.K. MUKHERJEE, LAW OF CRIMINAL APPEALS, REVISIONS, REFERENCES,
DWIVEDI LAW AGENCY (2nd ed. 2010).
26. S.K. SARVARIA, R.A. NELSON’S INDIAN PENAL CODE, LEXIS NEXIS
BUTTERWORTHS, VOL. 4 (9th ed. 2003).
28. SURYA NARAYAN MISRA, THE INDIAN PENAL CODE, CENTRAL LAW
PUBLICATION (15th ed. 2007).
31. THE INDIAN PENAL CODE, EASTERN BOOK COMPANY (34th ed. 2013).
WEBSITES
1. www.bombayhighcourt.nic.in
2. www.delhihighcourt.nic.in
3. www.indiankanoon.org
4. www.manupatrafast.in
5. www.scconline.com
6. www.westlawindia.com
OTHER AUTHORITIES
SYNOPSIS OF FACTS
For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are
summarized as follows:
1. On 24.09.2010 at around 7a.m., the deceased Manju Somnath Satpute asked her
husband Somnath Rajiv Satpute to take her to hospital since she wasn’t feeling well
from past 5-6 days.
2. But he told her that why she was troubling her, he’ll not take her to the hospital and
she should die. Annoyed by this, she poured kerosene on herself and he ignited the
match stick and set her on fire. She raised shouts on account of burns and came
running out of the house, where the neighbors also came on hearing her and then
extinguished the fire.
3. Kashinath Nemade, one of the neighbors, went to her maternal house and brought her
mother there. After her arrival, Manju was shifted to Ambikapur hospital and
admitted in burn ward no. 25 at around 1.1pm. She sustained 63% superficial to deep
burn injuries. Thereafter, the police was informed about this by the hospital authority.
4. PHC Sharad Walunj, posted at Ambikapur Chowky rushed to the hospital where he
inquired with the doctor about Manju’s health condition. He then recorded the injured
woman’s statement (Exh.22) after the doctor examined Manju and told him that she
was in a position to give statement wherein she stated that she poured kerosene on
herself and her husband set her on fire by igniting match stick.
5. At around 3pm, PHC Subhash was informed about the incident by Sr.Police Inspector
of Mhadur Police Station and was instructed to record Manju’s statement. He acted as
per the instructions and recorded her statement, i.e., dying declaration (Exh.34) after
inquiring from the doctor about her condition. She disclosed the same statements to
him, as she did to the previous PHC.
6. Thereafter, on the basis of her statements, the crime was registered under Section-
498A and 3071 of IPC. (CR No. 309/2010) by PSO, Mhadur police station, followed
by the investigation procedure. The initial investigation was conducted by the police
inspector, Mehere.
1
Section 307-Attempt to murder:
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act,
the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
7. Charges were framed against the accused to which he pleaded not guilty and claimed
to be tried. His statement was recorded under Section 3132 of Cr.P.C. which was of
total denial and false implication. In support of his defence, Ketan Nemade, one of the
neighbors, was examined as defense witness (Exh. 61).
8. In order to prove the guilt of the accused, the prosecution (now the respondents)
examined nine witnesses in all viz. Vijay Nemade (PW1), PHC Sharad Walunj
(PW2), Rohan Pravin Chandra (PW3), PHC Subhash (PW4), Dr.Abhijeet Shelke
(PW5), Dr.Pandit Swami(PW6), J.M. Gunjal (PW7), Atmaram Nemade (PW8), and
Sr. P.I. Mehere (PW9).
9. Besides these, the prosecution relied upon documentary evidences like C.A.Report,
Dying Declaration, Inquest panchama), Arrest and seizure of accused’s clothes,
Postmortem report, Indoor case papers of deceased, Spot panchanama.
10. The entire evidence on record was examined to decide the homicidal death of the
deceased caused by her husband.
11. The trial court held that the prosecution had successfully established by adducing
cogent evidence that the accused had committed the murder of his wife punishable
under Section 302 of IPC and was convicted as per Section 235(2)3 of Cr.P.C.
However, the prosecution failed to prove the charge under Section 498A of IPC.
Hence was acquitted for that offence. The period of detention undergone in jail by
him was given as set off according to Section 4284 of Cr.P.C.
2
Section 313- Power to examine the accused:
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances
appearing in the evidence against him, the Court-(a) may at any stage, without previously warning the accused,
put such questions to him as the Court considers necessary;(b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his defense, question him generally on the case. (2) No oath shall
be administered to the accused when he is examined under sub- section (1).(3) The accused shall not render
himself liable to punishment by refusing to answer such questions, or by giving false answers to them.(4) The
answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has
committed.
3
Section 235- Judgment of acquittal or conviction:
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.(2) If the
accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear
the accused on the question of sentence, and then pass sentence on him according to law
4
Section 428- Period of detention undergone by the accused to be set off against the sentence or
imprisonment:
Where an accused person has, on conviction, been sentenced to imprisonment for a term 1 , not being
imprisonment in default of payment of fine], the period of detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the
term of imprisonment imposed on him on such conviction, and the liability of such person to undergo
imprisonment on such conviction shall be restricted to the remainder, any, of the term of imprisonment imposed
on him.
STATEMENT OF ISSUES
The following issues have arisen for determination before the Hon’ble Court in
SUMMARY OF ARGUMENTS
5
Section 302. Punishment for murder:
Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to
fine.
6
Section 300 of IPC-Murder:
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course of nature to cause death, or—
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as aforesaid.
7
Paperbook on Criminal Appeal, 8th Lokmanya Tilak Appellate National Moot Court Competition, 2016
8
Supra Note 8, pp-12, 23
oral) presented by the respondents during the trial have sufficiently proved the guilt of
the accused. Therefore, the act committed by the accused was so grave and heinous in
nature that his conviction under section 302 for the sentence of life imprisonment is
appropriate and required in order to deliver justice to the deceased.
9
Section 498A. 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
10
Supra Note 9
11
Ibid
established by the respondents during the trial procedure by way of examining all the
documentary evidences and oral witnesses presented therein.12 Therefore, it is again
humbly contended by the counsels that the reliability of the statement of the deceased
should be considered to the extent of making the accused guilty for the offence
punishable under section 498A as well.
12
Supra Note 8, p-68
ARGUMENTS ADVANCED
1. The counsels on behalf of the respondents humbly submits that the order passed by the
Sessions Court of sentencing the accused for imprisonment for life for his offence committed
under section 300 and punishable under section 302 of IPC is appropriate.
The conditions of section 300 of IPC have been satisfied
2. The accused has committed the offence of murder because act done by him falls under the
definition of Murder as defined in Section 30013 of IPC. The present case comes under the 4th
clause of the said section. Clause 4 of the Section talks about a person committing any act
and knowing that the act thus committed is so imminently dangerous that it will in all
probability cause death or bodily injury as is likely to cause death and that person commits
the act without any excuse for incurring the risk of causing death or such injury aforesaid.14
3. The essential ingredients of this clause are15 –
(a) The act must be imminently dangerous,
(b) The person committing the act must have knowledge that it is so imminently
dangerous, As per the Oxford Dictionary, the word knowledge means: ‘Acquaintance with
a fact, perception, or certain information of a fact matter; state of being award or informed;
consciousness (of anything).’16
For practical and legal purposes, ‘knowledge’ means the state of mind entertained by a
person with regard to existing facts which he has himself observed, or the existence of
which has been communicated to him by persons whose veracity he has no reason to
doubt.17
(c) That in all probability it will cause– either Death or Bodily injury as is likely to cause
death and;
(d) Such imminently dangerous act should be done without any reason or justification
for running the risk of causing death or such injury.
13
Supra Note 7
14
Ibid, clause 4.
15
K I VIBHUTE, PSA PILLAI’S CRIMINAL LAW, LEXIS NEXIS PUBLICATION, P-582
16
Justice C.K.Thakker, ‘Encyclopaedic Law Lexicon’, Volume II, Edn.2010, ASHOKA LAW HOUSE, p-2568
17
Ibid
4. This present act of the accused of lighting the matchstick on her body drenched in kerosene
shows that the person had the knowledge that the act is so imminently dangerous that in all
probability it will cause death.18 Her wife poured kerosene on her person and he was also
aware of the same and had the knowledge about the act of lighting the matchstick that in
all probability would cause the death of the accused and still doing the act fulfills the
condition of the Clause 4 of Section 300 of IPC and brings the act of the accused under the
definition of Murder.
5. Held since no special knowledge is needed to know that one may cause death by burning if
he sets fire to the clothes of a person it is obvious that the accused must have known that
he was running the risk of causing the death of the victim or such bodily injury as was
likely to cause her death. As he had no excuse for incurring that risk, the offence must be
taken to fall within 4th clause of section 300, Penal Code. In in other words, his offence
was culpable homicide amounting to murder even if he did not intend causing the death.
He committed an act so imminently dangerous that it was in all probability likely to cause
death or to result in an injury that was likely to cause death.19
6. In the case of State of M.P. v. Ram Prasad the Hon’ble Supreme Court held that this was
the case where it was difficult to find the intention of the accused. But then the Supreme
Court observed that in respect of the clause 1-3 of Section 300 of IPC, the question would
rise as what was the intention of the accused, the nature of injuries he intended to cause
etc. Then the Supreme Court opined that it would be simpler to place reliance on Clause 4
because it contemplates only ‘knowledge’ and no intention. In this case, when the accused
poured kerosene and set fire to his wife, he must have known that the act would result in
her death.20 This knowledge is sufficient to bring the act of the accused under the Clause 4,
Section 300.
7. In the case of Hari v. State of M.P. accused poured the kerosene and set the deceased on
fire and the deceased sustained second and third degrees burn injuries. The burn injuries
were sufficient in the ordinary course of nature to cause death though the deceased died
after 25 days of injuries. But the Hon’ble court convicted the accused under section
300(4) of the IPC.21 As the accused had the knowledge that doing this act is imminently
dangerous and it will lead to either the death or such bodily injuries which may lead to
18
Supra Note 9
19
State of M.P. v. Ram Prasad AIR 1968 SC 881
20
AIR 1968 SC 881
21
Hari Chunnilal v. State of Madhya Pradesh 1977MPLJ321
death of the victim then it sufficiently fits in the scene and provides a ground to convict the
accused.
8. Another authority which can be used in this case is Ram Lal v. State of H.P. In this case the
deceased poured kerosene on her person and the accused lighted a matchstick and set her
on fire. The Supreme Court held that his act was so imminently dangerous that in all
probability it was bound to cause death or such bodily injury as it was likely to cause death
and he can legitimately be presumed to have been in the knowledge of this fact because the
deceased had poured kerosene on her person within his view. Thus the Court was of the
view that this was a case covered by Clause Fourth.22
9. In the case of Urgen Sherpa v. State of Sikkim, court held that if the act of burning done
with the intention to cause death or the accused knew that the act was so imminently
dangerous that it must cause death or such bodily injurious as were likely to cause death.
Then the case would be covered under the fourth clause of section 300.23
10. If the case where there is no probability or the possibility of the deceased to commit
suicide or accidental death and the same is also not coming forth from the evidences. The
accused is also silent on the same contention in his statement given under Section 31324 of
CrPC, then the burden of proof shifts on the accused to establish the cause of death and to
prove he is not guilty of the act.25
11. The numbers of injuries only doesn’t matter; it is also the nature of the injuries and part of
body where it is caused.26 If the injuries are sufficient enough to cause death then they
could be anything irrespective of the number of injuries. In the present case the deceased
had sustained 63% burn injuries and they were sufficient to cause the death. In one of the
case Court held that having the knowledge of the act wouldn’t prima facie make it murder
but another essential ingredient for an act to be murder is that there shouldn’t be any
excuse and it is to be wholly inexcusable when even a risk of gravest possibly character,
which must normally result in death, is incurred.27
12. If there was no intention to kill, then it can be murder only if –
a) The accused knew that the injury inflicted would be likely to cause death or
b) That it would be sufficient in the ordinary course of nature to cause death or
22
2005(3)ShimLC67
23
Urgen Sherpa v. State of Sikkim 1985CriLJ1988
24
Supra Note 3
25
Ameer Jan v. State of Karnataka, 2004(3)KarLJ149
26
State of Rajasthan v. Dhool Singh, AIR2004SC1264.
27
Emperor v. Mt. Dhirajia, AIR1940All486.
c) That the accused knew that the act must in all probability cause death.28
13. In this case the accused had intention to kill as well as accused knew that the act must
in all probability cause death, so he doesn’t have any chance to run from his liability.
Both knowledge and intention can be seen here in the mind of accused by the act he
has done.
14. In order to hold a person responsible for having caused the death, it is not necessary
that his act should be the immediate cause of death, in the medical sense. If accused
has caused injuries then he is liable for murder.29 And in the present case the accused
had caused sufficient injuries to hold him responsible for the act.
Intention of Accused
15. “In the present analysis of the mental element in crime, the word ‘intention’ is used to
denote the mental attitude of a man who has resolved to bring about certain result if
he can possibly do so. He shapes his line of conduct so as to achieve a particular end
at which he aims.” 30
16. On 24/10/2010, there were only 3 people present in the house, Somanth, Manju and
their daughter Pratiksha. At around 7 am she said to her husband that she had been ill
from last 5 to 6 days and on that account asked Somnath to take her to hospital and to
this he refused to take her to hospital and said she should die.31 The admitted facts
here are that the appellant and the deceased were not having good relations and they
often quarreled with each other. This clearly shows that as the husband was not happy
with the relations and his demand of getting money from her maternal home was not
being fulfilled so can do anything in that order.
17. From the circumstances of the case we can infer that the accused was the only person
who could kill Manju because at the time of the commission of offence only husband
and her daughter were present in the house.32 Also there was no probability of
someone else being there. When she got burnt there were only three people present
Manju, Somnath and 14 months old girl pratiksha. So the present circumstances
clearly show that the act of killing her has been commissioned by the accused.
28
Willie (William) Slaney v. The State of Madhya Pradesh, AIR1956SC116.
29
Kumbhar Narsi Bechar v. The State, AIR1962Guj77.
30
Russell on Crime (12th Edition at page 41) mentioned in Justice C.K.Thakker’s, Encyclopaedic Law Lexicon,
Volume II, Edn.2010, p-2381
31
Supra Note 9
32
Supra Note 8
18. The deceased was burnt inside the four walls of her house by her own husband and as
such, there could not be any eye witness to the incident so Court can rely on the dying
declaration given by her.
33
Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141
34
Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141. See Halsbury’s Laws of
England, 4th Ed., Vol.11, p-13.
35
Supra Note 8, p-5
36
Supra note 17.
37
These are the methods used to detect and punish crime that includes searching and taking property and data
that can be used by the prosecution of the criminal.
38
Ibid
kerosene and he himself lighted the matchstick on her.39 This proves he has
committed the offence of the Murder. The burn injury on his hand also supports the
fact that he himself lighted the matchstick and killed the wife.40
23. For the act done by the accused he must be punished. The act committed by the
accused comes under the Section 30241 of Indian Penal Code. The said section
prescribes the punishment for murder. In the present case, Somnath has committed the
murder of his wife Manju (as proved above) and for this he is liable under Section
302. In the Section 302 the punishment prescribed is either death sentence or life
imprisonment. Here, as the case doesn’t fall under the purview of rarest of the rare
case, so death penalty cannot be imposed, hence the option left is life imprisonment.42
Life imprisonment to the accused is completely justified if we go as per the grounds
mentioned above.
Documentary evidences-
24. All the documentary evidences are sufficient enough to prove the guilt of the accused.
These works as circumstantial evidences to support the story of the dying declaration.
Dying Declaration43 -
25. On dying declaration, the Hon’ble Supreme Court has said that the dying declaration
can be the conclusive evidence for the conviction of the accused without
corroboration.44
One dying declaration which is on record is said to have been recorded by the police
officer. According to his version as soon as he received information regarding the
offence in question, he rushed to the hospital and recorded the statement of the
deceased under Section 161, CrPC which is admissible in evidence under Section 32
of the Evidence Act45. In the statement made to police she said that accused poured
kerosene on her and the husband set her fire. These are all the evidences led by the
39
Supra Note 8, pp-18, 4, 16
40
Supra Note 8, p-50
41
Supra Note 6
42
Supra Note 8, p-84
43
Statements made by a person who is lying at the point of
death, and is conscious of his approaching dissolution, in reference to the manner in
which he received the injuries of which he is dying, or other immediate cause of his
death, and in reference to the person who inflicted such injuries or the connection with
such injuries of a person who is charged or suspected of having committed them; which
statements are admissible in evidence in a trial for homicide where the killing of the
declarant is the crime charged to the defendant.
44
Aijaz Ahmad v. State of U.P. Para 10 2004(2)ACR1596
45
Supra Note, pp-7, 12
prosecution to establish the guilt of the accused.46 And this evidence is fully
supporting the conviction.
26. In the present case there are two dying declaration taken by two different police
constables. Both dying declaration are consistent to each other and saying the same
thing and pointing out the guilt of the accused.47 In both the dying declarations she
told that on 24/9/2010 around 7-8 am, she told to her husband that as she is feeling ill
from last 5-6 days so she asked him to took her hospital but he replied why are you
shrieking, I will not take you to hospital and instead of taking her to hospital he
assaulted her and also said that you should die. Therefore she got annoyed with this
and also from the continuous cruelty and harassment that she was subjected to from
the day by her husband and he is forcing her to take money from her mother house
and poured kerosene on her and then accused said that I will kill you and then lighted
the matchstick.48 After she shouted neighbor and brother in law came and
extinguished the fire and admitted her in the Ambikapur hospital.
27. In this case, both dying declaration are consistent, she has mentioned the same thing
and she was aware about the situation and she was in the fit state of mind to give the
statement that’s why both statement are not contradictory in nature and are true and
voluntary.49
28. “In the case of the multiple dying declarations, each dying declaration will have to be
considered independently on its own merit as to its evidentiary value and one cannot
be rejected because of the contents of the other. In cases where there are more than
one dying declaration, it is the duty of the Court to consider each of them in its correct
perspective and satisfy itself which one of them reflects the true state of affairs.”50
29. “A dying declaration can be accepted though not recorded by the Magistrate, if other
facts and circumstances of the case reflected its truthfulness and authenticity and in
such circumstances there is no legal impediment to make it the basis of conviction.”51
30. In the case of wife burning, accused has to prove the factum of death. The appellant
and his family member were under a legal obligation to explain the nature and manner
46
Chinnapattu Nagan v. State of A.P. 2000, mentioned in S.C.Sarkar, A commentary on The Law of Indian
Evidence Act, p-844
47
Supra Note 9
48
Ibid
49
Ibid
50
Nallam Veera Stayanandam and Ors. v. The Public Prosecutor, High Court of A.P. 2004(2)ACR1282(SC)
51
Santosh Dadu Sapkale v. State of Maharashtra 2009(111)BOMLR4435
of the injuries received on her body. If accused failed to prove the cause of death, it
will go against the accused because it is statutory duty of accused.52
31. “It is settled law by series of judgments of this Court that the dying declaration, if
after careful scrutiny the court is satisfied that it is true and free from any effort to
induce the deceased to make a false statement and if it is coherent and consistent, is
no legal impediment to form such dying declaration the basis of conviction, even if
there is no corroboration vide.”53
32. In the case of State of Maharashtra v. Rajendra Garbad Patil, “the dying declaration
recorded within an hour of the occurrence and made by the injured without being
influenced by others was held reliable and conviction could be ordered on that basis
alone.”54
33. In the case of Ameer Jan v. State of Karnataka, the statement of the deceased initially
recorded as a Statement before the death but after the death, the statement changed its
characteristics to the Dying Declaration under the section 32(1) of the Indian
Evidence Act. In these types of cases or circumstances, the fitness certificate of doctor
is not required. The dying declaration can be relied upon in the absence of the fitness
certificate also. Dying declaration is the statement where deceased explain his/her
cause of the event which led her/his to this condition and there should be the nexus
between the statement of victim and cause of his/her death.55
34. It is not necessary to record the dying declaration by the Magistrate and it is not the
ground to discard the entire prosecution case. We cannot doubt on the reliability of
such declaration unless the statements are inconsistent and contradictory. 56
35. The law related to dying declaration is, it does not require any prescribed form,
format, procedure etc. and no where it is mention that who will take the declaration.
The only thing as person who take such declaration is satisfied that maker of the
declaration is in the fit state of mind and is capable of making such a statement. It is
not necessary to take fitness certificate in every case.57
52
Sunkappa Nagappa v. State of Maharashtra, 1995 (1) B Cr C 468 at 764: 1995 (2) Bom CR 665 (Bom),
mentioned in Sarkar’s Commentary on The Law of Evidence, Volume 1, p-1050
53
Tarachand Damu Sutar v. The State of Maharashtra, [1962]2SCR775.
54
State of Maharashtra v. Rajendra Garbad Patil, AIR1994SC475.
55
Supra note 18.
56
Balbir Singh and Anr. v. State of Punjab, 2006(3)ACR3053(SC).
57
Kaliya v. State of Madhya Pradesh, 2013(3)ACR2871.
58
State of Madhya Pradesh v. Dal Singh and Ors AIR2013SC2059
59
1978CriLJ1869
60
1983CriLJ221
61
Habib Usman v. State of Gujarat 1979CriLJ708 ,
62
Rajendra Singh v. State of Rajasthan 1996CriLJ1560
63
AIR 1983 SC 274
41. Habib Usman v. State of Gujarat, in this case it was observed that merely because
some friends or relatives happened to be present with the deceased before his
statement was recorded, the statement cannot be thrown out as tutored.64
42. Exhibit no. 23 is the Inquest Panchnama65 and it is taken by Sharad Walunj and
taken in the hospital in the presence of 2 independent witness and they checked the
complete body and found the burn injuries on the different parts of deceased body.
Entire skin of deceased was burnt and turned into reddish, black and whitish.66 They
also found the ink mark on the left thumb. The thumb impression shows that she made
the impression on the First dying declaration. This proves the authenticity of the first
dying declaration.
After examination the body they send the body to forensic department for the post
mortem along with the police report.67
43. The object of the section 17468 of CrPC is to find whether the person is died under the
mysterious circumstances or died due to the unnatural circumstances and if it is so
then try to find the apparent cause of the death.69 The aim of the report made by the
officer is to support the prosecution case and it is statutory function of the police. It is
very important report which needs to be prepared spontaneously at the site and give it
to the doctor along with the dead body, when body has to send for the post mortem
examination.70
64
Supra note 41.
65
The judicial inquiry made by a jury summoned for the purpose is called an "in- quest." The finding of such
men, upon an investigation is also called an "inquest."
66
Supra Note 8, p-13
67
Supra Note 8, pp-14,15
68
Section 174. Police to enquire and report on suicide, etc.:
(1) When the officer in charge of a police station or some other police officer specially empowered by the State
Government in that behalf receives information that a person has committed suicide, or has been killed by
another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable
suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the
nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed
by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall
proceed to the place where the body of such deceased person is, and there, in the presence of two' or more
respectable inhabitants of the neighborhood, shall make an investigation, and draw up a report of the apparent
cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the
body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been
inflicted.
69
DR. K. N. CHANDRASEKHARAN PILLAI, R.V. KELKAR’S CRIMINAL PROCEDURE, EASTERN
BOOK COMPANY, Edn.6th, 2014, p-198
70
DR. K. N. CHANDRASEKHARAN PILLAI, R.V. KELKAR’S CRIMINAL PROCEDURE, EASTERN
BOOK COMPANY, Edn.6th, 2014, p-200
44. The inquest report cannot be substantive evidence,71 but it may be used for
corroboration of the evidence given by the police officer making the report.72
The inquest report is made just to indicate the injuries found on the body of the
decease, and it is not necessary to record the statements of the witness or to get the
73
statement signed and incorporated inquest report is primarily to find out nature and
apparent cause of death, whereas post mortem contain details of injuries through
scientific examination.74
In this case by the inquest report made by the police shows that deceased has dies due
to the burn injuries. The burning marks on Manju body show that the injuries are
serious in nature.
“If a document is admitted and corroborated by other evidence, it has to be given an
exhibit number then court can rely on this”.75
45. Exhibit no.29 is the police report which is send to the district surgeon for post
mortem.76 In the report it is already mentioned the cause of the death is the burn
injuries. Post mortem also explains the seriousness of the burn injuries. in post
mortem report, doctor found the blue ink mark on thumb as well as great toe. This
again proves the veracity of the dying declarations which were taken by the 2
different constables.
46. Exhibit no. 32 Arrest and cloth seizure – it was taken by the Asst.Police Inspector
J.M. Gunjal77. He arrested accused on 28/09/2010 at around 5 pm. Police also called
two independent witnesses to prepare seizure panchnama. Police seized one white
shirt and one blue cotton pant and packed, sealed and labeled the cloth and send it to
the Chemical Analyzer. The accused himself told that he wore that cloth on the day of
the incidence. Independent witnesses were also present and smelled the cloth and
found the cloth smelling of the kerosene. Moreover he didn’t refuse to wear the same
cloth in the statement taken under the Section 31378 of CrPC.
71
Adi Bhumiani v. State, 1957CriLJ1152.
72
Mukanda and Ors. v. State, 1957CriLJ1187.
73
Narpal Singh v. State of Haryana, AIR1977SC1066.
74
Sunil Singha v. State of West Bengal, 2007CriLJ516(Cal).
75
S.C.Sarkar, The Code of Criminal Procedure (2012 edtion), Volume 1, Lexis Nexis Butterworths Wadhwa
Nagpur.
76
Supra Note 8, p-15
77
Supra Note 8, p-18
78
Supra Note 6
“The wide power given to a police officer to seize property under this section should
be availed only in those cases where he has power to investigate into offences
conferred by the code or by other law”.79
47. Exhibit no. 15 that is C.A. report proves that the accused cloth was having the traces
of kerosene.
Both report and statement of Rohan pravin Chandra proves that the kerosene was
there on the cloth of the accused that proves that he was present inside the house at
the time of pouring of the kerosene and he himself lighted the matchstick on her80.
48. Exhibit No. 38 Post mortem report81 and Exhibit No. 45 Indoor Case Papers82 -
both Exhibit clearly shows that this is the case of burn injuries and deceased got 63%
burn injuries83. From these burn injuries she died.
The post mortem report said that there was ink mark on the left thumb and right toe
of the deceased that shows police constable came and took the statement of the
deceased and the she also made the thumb impression on the dying declarations.
That makes the dying declaration more reliable.
49. Exhibit No. 51, medical officer of the rural hospital Mhadur found the burnt injuries
on the hand of the accused84. This shows that the accused burned her wife and in this
process he got this burnt injuries.
50. Spot panchnama – this was done by the API Gunjal in the presence of the Atmaram
and Avinash (2 independent witness)85.
Section 10086- Persons in charge of closed place to allow search. (4)Before making
a search under this chapter, the officer or other person about to make it call upon two
or more independent and respectable inhabitants of the locality in which the place to
be searched is sitauate or of any other locality if no such inhabitant of the said
localitities is available or is willing to be a witness to the search, to attend and
witness the search, to attend and witness the search and many issue an writing to
them or any of them so to do.
79
Nemichand Jain v. Supt. of Central Excise and Customs, (1963) 2 CriLJ
80
Supra Note 8, pp-4, 16
81
After death. A term generally applied to an autopsy or examination of a dead body, to ascertain the cause of
death, or to the inquisition for that purpose by the coroner.
82
‘The complete treatment record during your stay at the hospital; internal records of the hospital
83
Supra Note 8, pp-29, 40
84
Supra Note 8, pp-49, 50
85
Supr Note 8, p-45
86
The Code of Criminal Procedure, Bare Act, Professional Book Publisher
In this case 5 things are seized by the Mhadur police station87, they are –
a. Bluish liquid in a plastic can
b. Match stick containing match sticks
c. Partly burnt saree and blouse
d. T-shirt wrapped in paper.
e. Full pant wrapped in paper
51. Supreme Court said that if the discovery of a fact is otherwise reliable its evidentiary
value is not diminished by reason of non-compliance of section 100(4) and (5).88
Mere non-compliance of the provisions in the code would not by itself vitiate the
prosecution.89 It has been observed that non-compliance with the provision of section
and 165 of the code will not vitiate the trial or make evidence of the search officer
inadmissible in evidence.90 The Provisions are sometimes considered to be directory
only.91
52. Though there is nothing in law that prohibits searches being carried out during night,
it has been held that, when not inconvenient, they should be conducted during
daytime so as avoid any compliant on the part of the accused that there was room for
unfair practice like ‘planting’ articles.92 That’s why in this case the spot panchanama
is prepared on 25th October Morning.
53. With a view to ensuring that the witnesses for the search are disinterested persons, the
word ‘independent’ has been inserted in sub-section (4).93
The non-compliance of the condition in clause of section 100 of crpc does not affect
the validity of the search on conviction.94
At the highest regularity in the search and recovery in so far as the terms of section
100(4), Crpc, 1973 have not been fully complied with, does not affect the legality of
the proceedings. It only affects the weight of evidence which is matter for the court
to decide.95
87
Supra Note 8, p-4
88
Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh, (2010)2SCC748.
89
DR. K. N. CHANDRASEKHARAN PILLAI, R.V. KELKAR’S, CRIMINAL PROCEDURE, EASTERN
BOOK COMPANY, Edn.6th, 2014, p-115
90
A.P. Kuttan Panicker and Ors. v. State of Kerala, (1963)CriLJ669.
91
Fedders Lloyd Corporation (P.) Ltd. v. B.A.Lakshminarayana Swami, AIR1969Del26
92
Supra note 55.
93
K.N. Chandrasekharan pilliai, R.V. Criminal Procedure, Edn.6th, 2014, p-114
94
Bai Radha v. The State of Gujarat, AIR1970SC1396.
95
State of H.P.v. Sukh Ram, 2003CriLJ 219.
54. All the witnesses presented by the respondents at the time of the trial are true to their
submission and support the allegations posed on the appellants and thereby convict
him for the said offences. The court defined interested witnesses as relative, friend or
person having relations called interested witness.96
PW1, Vijay Nemade
55. He is the neighbor of the accused and deceased. On the date of the incident at around
8am he was unloading sand from the trolley of tractor near his house when he heard
the shouts of the deceased and saw her coming out of house engulfed in fire 97.
Immediately, he along with four others rushed towards her to extinguish fire. After
extinguishing fire they took her to Ambikapur hospital where she was admitted.
After his chief examination the APP requested the court to cross examine the witness
since he had completely resiled from the contents of his statement. Permission was
granted for the same98. In his statements before the court he said that the deceased had
not stated anything to him about the incident, but when his statement was taken by the
police two years prior to the trial, there he mentioned the deceased had told him about
the entire incident, and then later before the court he says that he cannot assign any
reason as to why it was there in his statement and that it is not correct 99. This act of
the witness shows that he had turned hostile and now it is upon the court to not give
reliance to his statement and discard his testimony altogether. Although the trial court
accepted that the witness has turned hostile but it did not discard his testimony
thereby committing an error in this matter. His testimony should be discarded in the
sense that it contradicts his statements and there are no corroborative evidences to
support the same.
56. Meaning of Hostile Witness in English Law- A witness id said to be hostile, if he
exited manifest antipathy, by his demeanor, answers & attitude, to cause party calling
him by making contradictory statement inconsistent with his previous statement.100
According to Oxford dictionary “'contradiction' means to offer the contrary. If a
witness deposes in the court that a certain fact existed but he has not stated
accordingly in his statement before the police, it is a case of conflict between the
96
Gopal Anjayya Falmari and Ors. v. The State of Maharashtra, (1995)1BomCR116.
97
Supra Note 8, p-5
98
Supra Note 98
99
Supra Note 8, pp-5, 6
100
Justice C.K.Thakker, Law of Evidence, Volume 1, 2013 Edition, Whytes & Co., p-76.
deposition in court and statement before the police. Therefore statement before the
police can be used to contradict his deposition before the court.”101
“If a witness has deposed in the examination in chief a certain thing which he has
omitted to state before the police in his statement it is called omission. If the said
omission is on minor points, it is not contradiction and court will not take cognizance
of those omissions. Court will take cognizance of those omissions which are on
material point and which are called contradictions by way of omissions.102
57. In the Indian context, the principles dealing with the treatment of hostile witnesses are
encompassed in Section 154 of the Indian Evidence Act, 1872 , defined hostile
witness as one “who is not desirous of telling the truth at the instance of one party
calling him.” 103
Hostile witness is a witness who, from the manner in which he gives his evidence,
shows that he is not desirous of telling the truth, to the court.104
Hostile witness means the statement who makes statements adverse to the party
calling and examining him, and who may, with the permission of the court, be cross
examined by that party.105
Before giving permission it is usual for a judge to look into the police to see whether
the witnesses the witness was actually resiling from the taken during the
investigation.106
58. In Sat Paul v. Delhi Administration, the Hon’ble Supreme Court held that, It is for the
Judge of fact to consider in each case whether as a result of such cross-examination
and contradiction, the witness stands thoroughly discredited or can still be believed in
regard to a part of is testimony. If the Judge finds that in the process, the credit of the
witness has not been completely shaken, he may, after reading and considering the
evidence of the witness, as a whole, with due caution and care, accept, in the light of
the other evidence on the record, that part of testimony which he finds to be
creditworthy and act upon it. If in a given case, the whole of the testimony of the
witness is impugned, and in the process, the witness stands squarely and totally
101
Maharashtra Judicial Academy
http://mja.gov.in/Site/Upload/GR/summary%20of%20second%20work%20shop%20criminal%20dated%2010-
01-15.pdf, last accessed on 2/16/2016, 23:15
102
Ibid
103
Gura Singh v. State of Rajasthan 2001 Cri.L.J. 487: AIR 2001 SC 330 10
104
Justice C.K. Thakker, Encyclopaedic Law Lexicon, Volume 2, p-2172.
105
Praphulla Kumar Sarkar v. Emperor AIR1931Cal401
106
Lalu and Ors. v. State AIR1960Cal776
107
1976CriLJ295
108
Supra Note 8, p-61
109
Supra Note 8, p-7
and assaulting her in order to get amount from her mother, and therefore, she has a
legal complaint against him110.
Moreover, minute inconsistencies in the procedure do not tend to discard the
testimony altogether and cannot supersede the most important aspect of delivering
justice by convicting the accused for the offence he committed.
station on the basis of which the crime was registered, station diary entry was made
and finally the investigation handed over to the Police Inspector116.
116
Supra Note 8, p-21
117
Supra Note 8, p-24
118
Supra Note 8, pp-24,16,32
119
Supra Note 8, p-33
120
Ibid
121
Supra Note 8, pp-70,71
122
Supra Note 8, p-51
panchanama on which he signed at the end after the contents were read over to him
and he ascertained them to be correct123. Hence, his testimony corroborates with other
evidences in order to bring home the guilt of the accused.
123
Ibid
124
Supra Note 8, pp-52,53
125
Ibid
126
Supra Note 8, pp-45,46
127
Ibid
69. The counsels on behalf of the respondents humbly submit before this Hon’ble Court
that the accused Somnath Rajiv Satpute is also guilty for the offence punishable under
Section 498A128 of IPC. The Sessions Court had wrongly acquitted the accused of the
charges under Section 498A of IPC. The act by accused satisfies the conditions
mentioned in Section 498A of IPC. The Explanation (b) of the said section talks about
cruelty/harassment done on a woman so as to coerce her or any person related to her
to meet any unlawful demand for any property or valuable security and may also
harass her or any person related to her on failure of meeting such demand.
70. The accused had harassed his wife and this can be easily deduced from the facts of the
case. The facts of the case say that the deceased Manju Somnath Satpute was being
harassed by the accused from a long time as he wanted her to ask her parents to give
some money129. As she was not bringing any money in that respect so he subjected
her to cruelty by harassing and ill-treating her both physically and mentally. He made
illegal demand for money by abusing her130. These facts clearly shows us that she was
abused, threatened and harassed by the accused and which accounts to cruelty and
comes under Explanation (b) of Section 498A of IPC.
71. The same can also be seen in the dying declarations by the deceased. The deceased
made two dying declaration and both of them are consistent on the same matter. In the
first dying declaration she told the officer that her husband asked her to get money
from her mother and on that account used to abuse, threaten and beat her 131. In the
second dying declaration (which also has been treated as complaint statement in the
present case) she said that from the time of her marriage her husband has been
treating her very badly, he troubles her and asks her to get money from her parents.
She even said that she told the same to her parents also132. By the statements made by
the deceased in both the dying declarations we can easily make the inference that the
accused was treating his wife with cruelty and this also satisfies the ground for
liability of the accused for section 498A of IPC.
128
Supra Note 10
129
Supra Note 9
130
Ibid
131
Ibid
132
Ibid
72. It is always contended that the word ‘cruelty’ occurring in the said provision and its
interpretation is very vague. But it is not so, we just have to interpret what is written
in the Explanation (b) of the contested section. It says that if there is harassment for
obtaining some property or valuable security from the wife or any of her relative, then
it also amounts to cruelty.133
Then coming to the ingredients of this section we can divide the ingredients in three:
(i) The woman must be married.
(ii) She must be subject to cruelty or harassment,
For purpose of the section, harassment is not simply ‘cruelty’ and it is
harassment only when it is committed for the purpose of coercing any woman
or any person related to her to fulfill any unlawful demand for property, etc.
then it amounts to cruelty under sec 498A.134
(iii) Such cruelty or harassment must have been shown either by husband of the
woman or by any relative of the husband.
These above ingredients have been correctly fulfilled by the accused and this again
shows that he is liable for the act of harassment and cruelty that he has done.
73. The basic ingredients of section 498A are cruelty and harassment, further in
Explanation (b) of the said section which talks about harassment, the physical injury
is absent but it talks about coercive harassment for any unlawful demand and deals
with patent or latent acts of husband or family members.135 Section 498A also doesn’t
talk about as to under how many time period the harassment was done as no such
period is mentioned in section 498A and the husband or his relative would be liable
for subjecting the women to ‘cruelty’ any time after the marriage.136
74. Cruelty need not to be physical, it can be mental also. 137 To find out cruelty we will
have to infer it by the act of the men, the seriousness in his act. It is also to be
established that the woman was constantly subjected to harassment/cruelty. 138 To
decide about cruelty what needs to be checked are the relevant factors of the marital
133
Ratanlal & Dhirajlal’s, Law of Crimes: A Commentary on Indian Penal Code,1860, p-3040
134
Smt. Shanti and Anr. v. State of Haryana, AIR 1991SC 1226, mentioned at p-3041 in Ratanlal & Dhirajlal’s,
Law of Crimes: A Commentary on Indian Penal Code,1860.
135
Undavali Narayana Rao v. State of A.P., (2009) 14 SCC 588, mentioned at p-3041 in Ratanlal & Dhirajlal’s,
Law of Crimes: A Commentary on Indian Penal Code,1860.
136
Supra Note 63
137
Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, See also, G.V. Siddaramesh v. State of Karnataka,
(2010) 3 SCC 152 (158).
138
Ratanlal & Dhirajlal’s, Law of Crimes: A Commentary on Indian Penal Code,1860, p-3043
relationship between the husband and the wife, their interaction with each other, their
culture, societal status and various other factors.139
75. It was also established in the case of Bhanubhai Shanabhai Zala v. State of Gujarat,
that in case of death of wife by burns, the conduct of accused of not visiting her to
hospital during her entire period of hospitalization amounted to cruelty.140
76. Section 498A says that the harassment of the woman where such harassment with a
view to coerce her or any person related to her to meet any kind of unlawful demand
for any property etc. and on account of failure to provide the same by her or by her
relative will amount to cruelty for the purpose of 498A.141 Clause (b) does not make
each and every harassment cruelty. It is harassment only where it is shown to have
been committed for the purpose of coercing a woman to meet the demands that is
cruelty and this is made punishable under the section.142
139
Ibid
140
2008CriLJ3828, mentioned in Ratanlal & Dhirajlal’s, Law of Crimes: A Commentary on Indian Penal
Code,1860, p-3044
141
Wazir Chand and Anr. v. State of Haryana, AIR 1989SC378, mentioned in Ratanlal & Dhirajlal’s, Law of
Crimes: A Commentary on Indian Penal Code,1860, p-3047
142
Ravindra Pyarelal Bidlan and other v. State of Maharashtra, 1993 CriLJ 3019(Bom), mentioned in Ratanlal
& Dhirajlal’s, Law of Crimes: A Commentary on Indian Penal Code,1860, p-3047
143
Section 304B. Dowry death:
(1) 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. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section
2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life.
144
Dowry Prohibition Act, 1961
145
Supra Note 6
146
AIR2011SC568
the charges may be brought against the accused for the offence of murder under the said
section. Otherwise, if not proved, then the court has to look into the offence under section
304B of IPC. Both the offences are different and have varied ingredients and that is the
reason that they require different appreciation or prospective of the evident to the
ingredient147.
ALTERATION OF CHARGE
81. In the instant case, the accused has been tried by the session court for the charges framed
under section 498A of IPC and section 302 of IPC148. As already discussed above, the
case in indirectly related to dowry death but the charge under section 304B of IPC has
not brought for the same. In this context, the issue of alteration of charge can also come
into picture which can probably be brought up by the appellant.
82. As per the Section 216149 of CrPC- Court may alter charge:
(1) Any Court may alter or add to any charge at any time before judgment is
pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the
trial is not likely, in the opinion of the Court to prejudice the accused in his defence or
the prosecutor in the conduct of the case the Court may, in its discretion, after such
alteration or addition has been made, proceed with the trial as if the altered or added
charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is
likely, in the opinion of the Court to prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a new trial or adjourn the trial for such period as
may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of
which previous sanction is necessary, the case shall not be proceeded with until such
sanction is obtained, unless sanction had been already obtained for a prosecution on
the same facts as those on which the altered or added charge is founded.
147
Ibid
148
Supra Note 8, p-1
149
The Code of Criminal Procedure, Bare Act, Professional Publisher
Section 216 of CrPC talks about alteration or addition of the charge. But it should be
done before the judgment pronounced.150
83. The charge can be altered at the stage of the trial depending upon the evidences adduced
in the case. Framing of charges depends upon the trial judges after considering the
relevant materials on record. Trial court is the appropriate court to frame the charges
and moreover trail court can find the truthfulness, sufficiency and acceptability of the
material produced.151
84. As a matter of pleading clean acquittal or lesser punishment or re-trial, if the appellant
contend that there was an error in framing charges at the time of the trial by omitting the
charge of section 304B, instead of putting the charge of section 302 therein, the
respondents in their say, would humbly contend before this Hon’ble court by virtue of
Section 464 of CrPC.
As per Section 464152 CrPC- Effect of omission to frame, or absence of, or error in,
charge-
(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed
invalid merely on the ground that no charge was framed or on the ground of any
error, omission or irregularity in the charge including any misjoinder of charge,
unless, in the opinion of the Court of appeal, confirmation or revision, a failure of
justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of
justice has in fact been occasioned, it may—(a) in the case of an omission to frame a
charge, order that a charge be framed and that the trial be recommenced from the
point immediately after the framing of the charge; (b) in the case of an error,
omission or irregularity in the charge, direct a new trial to be had upon a charge
framed in whatever manner it thinks fit: Provided that if the Court is of opinion that
the facts of the case are such that no valid charge could be preferred against the
accused in respect of the facts proved, it shall quash the conviction.
85. The mere omission to frame a charge or mere defect in the charge is no ground for
setting aside a conviction. Procedural laws are made with the aim to facilitate the
justice. Technicalities should not come in the way of administration of justice. The aim
of the charge is to convey the accused that what he has been charged with. If the
150
Jasvinder Saini and Ors. v. State (Govt.of NCT of Delhi) AIR 2014 SC 841
151
Salman Khan v. State of Maharashtra AIR2004SC1189
152
Supra Note 150
153
Gurbachan Singh v. State of Punjab, AIR 1957 SC 623
154
Willie (William) v. State of M.P., AIR 1956SC116
155
Shyam Sunder Rout v. State of Haryana (1971)3SCC226
156
Bimbadhar pradhan v. State of Orissa 1956 SC 469
PRAYER
In light of the facts stated, issues raised, arguments advanced and authorities cited, it is
In light of the facts presented, issues raised, arguments advanced and authorities cited the
Counsel for the Appellants humbly pray before this Hon’ble Court that it may be pleased:
1. To declare that the Respondent has been rightly convicted for the offence punishable
under Section 302 of Indian Penal Code;
2. To declare that the Judgment given by the Sessions Court is appropriate;
3. To convict the accused for the offence punishable under Section 498-A of Indian
Penal Code along with Section 302 of Indian Penal Code;
Or pass any other order or make directions as the Hon’ble Court may deem fit to meet the
interest of justice, equity and good conscience in the instant case.
And for this act of kindness, the Respondent shall duty bound forever pray.
Respectfully Submitted on Behalf of the Respondent;