TEAM CODE: P223

2ND DME NATIONAL MOOT COURT COMPETITION, 2018

BEFORE THE HON’BLE HIGH COURT OF PREMNAGAR

IN THE MATTER OF SECTIONS 147, 153A & B, 295A, 326, 354, 426, 506, r/w 34
AND 120B OF THE GONDHIAN PENAL CODE.

___________________

STATE OF GONDHIA…………………………...……………………PETITIONER

SANSKRITI SUDHAR DAL...............................................................RESPONDENT

_________________________________________________________________________

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE

AND

HIS COMPANION JUSTICES OF THE HON’BLE HIGH COURT

_________

ON BEHALF OF THE PETITIONER

 2ND DME NATIONAL MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ I

STATEMENT OF JURISDICTION .....................................................................................II
SUMMARY OF ARGUMENTS .......................................................................................... III
ISSUE 1. WHETHER ACQUITTAL OF THE ACCUSED PERSONS INCLUDING
THE SSD CHIEF UDIT KUMAR WAS JUSTIFIED OR NOT ...................................... III
ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER
§ 161 CRPC IS ADMISSIBLE IN THE COURT OF LAW. ............................................ III
ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC
WITNESS .............................................................................................................................. III
ARGUMENTS ADVANCED .................................................................................................. 1
ISSUE 1. WHETHER ACQUITTAL OF THE ACCUSED PERSONS INCLUDING
THE SSD CHIEF UDIT KUMAR WAS JUSTIFIED OR NOT ......................................... 1
1.1THE ACTS OF THE ACCUSED PERSONS WERE UNLAWFUL AND PUNISHABLE UNDER THE
GONDHIA PENAL CODE. .......................................................................................................... 1
1.1.1 The accused persons can be punished for rioting under § 147 of GPC..................... 1
1.1.2 There was an intention to insult the feelings of national integrity of the petitioner
under § 153A and 153B and was there a deliberate and malicious act under § 294a of
GPC 4
1.1.3 The modesty of Pooja Kumari is outraged under § 354 [A] and whether she was
criminally intimidated under § 506 of GPC [B] and amounting to abatement under § 306
of GPC [C]. ......................................................................................................................... 5
ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER
§ 161 CRPC IS ADMISSIBLE IN THE COURT OF LAW. ............................................... 8
2.1 THE STATEMENT OF POOJA KUMARI CAN BE ADMITTED BEFORE THE COURT OF LAW
UNDER S.32 OF THE EVIDENCE ACT. ........................................................................................ 8

ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC

WITNESS ................................................................................................................................. 8
3.1 KRISHNA PAHALWAN IS AN ACCOMPLICE TO THE CRIME. .................................................. 9
3.2 KRISHNA PAHALWAN’S STATEMENT WAS ADMISSABLE IN THE COURT. ............................. 9
PRAYER ................................................................................................................................. 11

ON BEHALF OF THE PETITIONER I

 2ND DME NATIONAL MOOT COURT COMPETITION, 2018

STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for the petition filed before this
Honourable Court. The petition invokes the jurisdiction of this court on matters against
acquittal. It sets forth the facts and the laws on which the claims are based.
378. Appeal in case of acquittal.
(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub-
sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to
present an appeal to the High Court from an original or appellate order of acquittal passed
by any Court other than a High Court 2 or an order of acquittal passed by the Court of
Session in revision.]
(2) If such an order of acquittal is passed in any case in which the offence has been
investigated by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present an appeal, subject to the
provisions of sub- section (3), to the High Court from the order of acquittal.
(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the
leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High
Court, on an application made to it by the complainant in this behalf, grants special leave to
appeal from the order of acquittal, the complainant may present such an appeal to the High
Court.
(5) No application under sub- section (4) for the grant of special leave to appeal from an
order of acquittal shall be entertained by the High Court after the expiry of six months, where
the complainant is a public servant, and sixty days in every other case, computed from the
date of that order of acquittal.
(6) If in any case, the application under sub- section (4) for the grant of special leave to
appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie
under sub- section (1) or under sub- section (2).

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ON BEHALF OF THE PETITIONER
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SUMMARY OF ARGUMENTS

ISSUE 1. WHETHER ACQUITTAL OF THE ACCUSED PERSONS INCLUDING THE

SSD CHIEF UDIT KUMAR WAS JUSTIFIED OR NOT

It is humbly submitted that the acquittal of the accused persons including the SSD chief by
the session’s court is unjustified as their acts on the 14th of February, 2002 in the Select
Metro mall are punishable under various sections of the Gondhian Penal Code, 1860. A
group of around twelve persons entered the mall with the motive of disrupting celebrations of
Valentine’s Day through violent methods of assault, riot, criminal intimidation, mischief, etc.
Further, they outraged the modesty of one Pooja Kumari and assaulted her which led to her
committing suicide.

ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER §

161 CRPC IS ADMISSIBLE IN THE COURT OF LAW.

It is submitted before this court that the statement of Pooja Kumari recorded under 161
Cr.P.C is not admissible because it is effectively a dying declaration that has to be treated in
the light of section 32 of the Evidence Act which requires the statement to relate to the
person’s death. However, it merely makes allegations of assault.

ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC

WITNESS

In the sessions court proceedings, no weightage was given to Krishna Pahalwan’s statements
and it was stated that he was unworthy of credit. His authenticity of being an accomplice is
proved by Section 113 of the Gondhian Penal Code and it is contended that his statement was
undoubtedly admissible in the court.

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ON BEHALF OF THE PETITIONER
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ARGUMENTS ADVANCED

ISSUE 1. WHETHER ACQUITTAL OF THE ACCUSED PERSONS INCLUDING THE

SSD CHIEF UDIT KUMAR WAS JUSTIFIED OR NOT

It is humbly submitted before this honourable court that the acquittal of the accused persons
by the honourable session’s court is not justified as the acts of the accused persons were
unlawful and punishable under the Gondhiyan Penal Code [1.1].
1.1The acts of the accused persons were unlawful and punishable under the Gondhia
Penal Code.

It is submitted that the accused persons are guilty of the offences they were charged under
and punishing them for the same shall serve the purpose of justice.
1.1.1 The accused persons can be punished for rioting under § 147 of GPC
The accused persons can be punished for rioting only if it is proved that the accused persons
committed the crime of rioting under § 146 of the GPC. The same has been done below.
1.1.1.1 The accused persons committed rioting under § 146 of GPC

Whenever force or violence is used by an unlawful assembly, or by any member thereof, in

prosecution of the common object of such assembly, every member of such assembly is
guilty of the offence of rioting.1 Therefore the following ingredients must be met:

A. There must be an unlawful assembly (§ 141)

B. The accused must be a member of such unlawful assembly (§ 142)
C. Force2 or violence must be used by the said unlawful assembly or any member
thereof; (§ 326)
D. The said force or violence must be used in furtherance of the common object of the
said unlawful assembly (§ 34)

The above ingredients have been discussed down below:

A. There was an unlawful assembly
In order to constitute unlawful assembly, the following must be met:
• There must be an assembly of at least five persons.
• The assembly must have a common intention.
• The common object must be one of the five illegal objects specified in § 141 of
GPC

1
Section 146 of the Gondhiya Penal Code.
2
Section 349 of the Gondhiya Penal Code.

ON BEHALF OF THE PETITIONER 1

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On 14th February, 2002 a group consisting of 12 members of SSD group entered the Select
Metro Mall and started threatening and assaulting locals in the mall with the intention of
preventing any celebration pertaining to Valentine’s Day.3 In furtherance of their common
intention4 a few of them employed lathis to inflict terror and assault the people present in the
mall at that time. Further, the members of the assembly also started throwing chairs on the
glasses of the windows while four of them barged into the shop of Skarchies and caused
damage to property resulting in malicious injury to property which further resulted in the
offence of “mischief”5. In this case the malice can be presumed by the nature of the act and
its illegality.6 They also assaulted Pooja Kumari and caused hurt to the shopkeeper.7 The
activities of the members of the assembly surely classify as an illegal object described under
the 4th category under § 141 of the GPC as they committed “mischief”.8 Therefore, they
satisfied all the elements of unlawful assembly as:
• They were more than 5 people.
• They had the common intention of interfering with the celebrations of valentine’s day
of the common people at the mall and,
• Their acts can be classified under the 3rd category of illegal object defined under §
141 of GPC

Thus, they assembled unlawfully at the Select Metro Mall on the 14th of February, 2002.
B. The accused were a part of the unlawful assembly
The accused persons belonged to the group named SSD. On the 14th of February,
2002 a group of around 12 people entered the Select Metro Mall with a very definite
intention of disrupting any celebrations pertaining to the occasion of valentine’s day.
Therefore, very clearly, these people belonged to the same unlawful assembly.

In the present case, it became evident from the conduct of the activists that there is a direct
evidence for group of people conspire to commit an offence9 punishable with death or
imprisonment will be liable.
C. Force was used through dangerous weapons in furtherance of the common object of
the said unlawful assembly
In order to prove rioting it must be proved that force was used with motive of
achieving the common intention. 10
§ 326 of the GPC applies to a person who does a substantive act causing grievous hurt
by use of dangerous weapons and means. The ingredients of the section are:
• The accused caused grievous hurt voluntarily; and
• It was caused by means of an instrument for shooting, stabbing, cutting, etc.

3
Moot Proposition, page 2, para 3.
4
Proved in 1.1.1.1.1
5
Section 425 of the Gondhiya Penal Code; Criminal Damage Act, 1971 (1971 c. 48). (which has replaced the
offence relating to the Malicious Damage Act, 1861) is the principle Act dealing with damage to property. See
Smith and Hogan Criminal Law, 6th Edn., (1988), pp 677-704.
6
Per Tindall, C.J., in Medwill R., 2 MCR 458; Davies, F and F 69; James v Phelps, 11 Ad and E 483; James, 8
C and P 131 (ER); See R. v. Cunningham, (1957) 2 All ER 412; R. v. Mowatt, (1967) 3 All ER 47; Caldwell,
(1981) 1 All ER 961; Stephen v. Malcolm, (1984) 79 Cr App Rep 334.
7
Moot Proposiiton, page 2, para 4.
8
Section 426 of the Gondhiya Penal Code.
9
Moot proposition, Page 2, Para 2
10
Hazara Singh v. State of Punjab, (1971) 3 SCR 647.

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Lathis, in the past, have been established as a “dangerous weapon” for the purposes of this
section which can be employed to cause grievous hurt. 11 On the 14th of February, 2002 the
accused persons entered the Select Metro Mall armed with lathis.12 Further, the miscreants
entered into the shop of Skrachies and employed their lathis to destroy property and cause a
menace. The shopkeeper too was injured due to the use of lathis.13 This proves their guilt
under § 326 of the GPC.
D. There was a prosecution of common intention among the members of the assembly
The apex court in Suresh v. State of Uttar Pradesh14 held that in order to attract
common intention under § 34 of the GPC the following two postulates are
indispensable:
• The criminal act (consisting of a series of acts) should have been done, not by one
person, but more than one person.
• Doing of every such individual act cumulatively resulting in the commission of
criminal offence should have been in furtherance of the common intention of all
persons.

Meeting of minds prior to the criminal act is an important ingredient to constitute “common
intention”.15 It is clear that all the people who entered the Select Metro Mall to inflict it with
terror represented the particular group of SSD which implies they had prior meeting of mind.
All of them might have carried out different tasks like intimidating people, throwing chairs or
assaulting people and causing damage to property but with the common objective of stalling
any celebration of Valentine’s Day in the mall’s premises. The totality of the circumstances
must be taken into consideration while arriving at the conclusion of whether there was the
element of common intention.16 Thus the acts of the mob or assembly in the Select Metro
Mall on the 14th of February, 2002 satisfy both the postulates and therefore they had a
common intention.
Therefore, the accused persons had assembled unlawfully with the common intention of
committing mischief through violence in the Select Metro Mall on the 14th February, 2002
which amounts to the offence of rioting under § 146, GPC and thus they are liable to be
punished for the same under § 147, GPC.
E. The group of people indulge in to criminal conspiracy

§ 120 of Gondhian Penal Code, deals with punishment for criminal conspiracy. The main
point of difference between the § 34 and § 120-B of GPC is that as held in Satyavir Singh
Rathi v. State17 :
Ҥ 120-B constitutes an independent offence and positive evidence has to be adduced for
conviction thereunder. Whereas, § 34 does not constitute an offence and is only a rule of
evidence and inferences on evidence can be drawn.”

11
Dwarika Yadav v. State of Uttar Pradesh, 1976 Cr LJ 239 (All).
12
Moot Proposiiton, page 2, para 2.
13
Ibid.
14
AIR 2001 SC 1344.
15
Pandrang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 216.
16
Ram Tahal v. State of Uttar Pradesh, AIR 1972 SC 254.
17
Satyavir Singh Rathi v. State, (2011) 6 SCC 1.

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In the case of State of Maharashtra v. Som Nath Thapa18, this Court held:
“...the prosecution has not to establish that a particular unlawful use was intended. The
ultimate offence consists of a chain of actions, it would not be necessary for the prosecution
to establish, to bring home the charge of conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do, so long as it is known that the collaborator
would put the goods or service to an unlawful use”
In the case of Ramnarain v. State of Rajasthan19, it was held that:“...in almost every case of
conspiracy it is a matter of inference, direct independent evidence being seldom, if ever
forthcoming. But inferences are normally deduced from act of parties in pursuance of
apparent criminal purpose in common between them.”

1.1.2 There was an intention to insult the feelings of national integrity of the petitioner
under § 153A and 153B and was there a deliberate and malicious act under § 294a
of GPC

It is humbly submitted before this court that petitioner’s intention to insult the feelings of
national integrity was understood In the case of Swaraj Thackeray vs State of Jharkhand And
Ors. Committing an act prejudicial to maintenance of harmony between different religious
communities is likely to disturb the public tranquility. The question arose as to whether from
the allegations under § 153-A20 and 153-B21 is made out or not. From bare perusal of the
allegations made in para-822 of the fact sheet as well as the statements of the defendant, “tie
or die” and save Gondhian culture on solemn affirmation there is no doubt about it that
prima-facie case for commission of the offence as alleged do exists. Statements made by the
SSD members was not only unconstitutional, derogatory, defamatory and unlawful but was
made with an intent to insult the entire community made with mala fide, intentions and
ulterior motive to disseminate disharmony amongst the different groups. For example an
instance from this case where the activists shouted “You would be facing dire consequences
if seen again celebrating the Valentine Day”.23
Prima facie the FIR discloses the commission of the offence under § 153A of GPC24 against
the defendants and had disturbed the social tranquility of the State everything which is an
offence or which is prohibited by law or which furnishes ground for a civil action is 'illegal'
as defined under § 43 of GPC.25
The matter complained of within the ambit of § 153A must be read as a whole. One cannot
rely on strongly worded and isolated passages for proving the charge nor indeed can one take
a sentence here and a sentence there and connect them by a meticulous process of inferential
reasoning.

18
State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744.
19
Ramnarain v. State of Rajasthan, (1973) SCC (Cri) 545
20
Section 153A of the Gondhian Penal Code
21
Section 153 B of the Gondhian Penal Code
22
Moot Proposition, Page 2, Para 2
23
Moot Proposition; Pg. 1; Last line.
24
153 A of Gondhian Penal Code
25
Section 43 of Gondhian Penal Code

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In Bhagvati Charan Shukla v. Provincial Government26, the Court observed that the effect of
the words must be judged from the standards of reasonable, strong-minded, firm and
courageous men, and not those of weak and vacillating minds, nor of those who scent danger
in every hostile point of view. It is the standard of ordinary reasonable man or as they say in
English Law, "the man on the top of a Clapham omnibus". In the standard of an ordinary
reasonable man, wouldn’t be barging in a mall and going around and telling people to save a
particular religious culture which that person follows as said by the four activist who
snatched the articles after shouting “Save Gondhian Culture”.27

In Baba Khalil Ahamad case28 it was held that the writing must be deliberate and malicious
intention of outraging the religious feelings of a class of citizens of India. In order to establish
malice as contemplated by this § 295A it is necessary to prove ill-will or enmity against
specific person. If an injurious act was done voluntarily without a lawful and just excuse,
malice can be presumed. In the case, the acts done by SSD chief Udit Kumar challenging the
Khan trio to become Gondhu if they really loved their wife and asking the public to boycott
films starring the khan trio leads to enmity against non Gondhu Society. 29 It does not only
prove ill-will or hatred against the community but also that public tranquillity is disturbed.
An ordinary reasonable man does not ask the public to stop watching some actor’s movie
because of their hatred with a particular community.
Moreover, acts by the SSD activists of barging into the Select Metro Mall and chasing and
beating those going out of the mall amounts to injurious act, was done voluntarily.
1.1.3 The modesty of Pooja Kumari is outraged under § 354 [A] and whether she was
criminally intimidated under § 506 of GPC [B] and amounting to abatement under
§ 306 of GPC [C].

A. That Modesty of Pooja Kumari Is Outraged Under § 354

A woman, young or old, intelligent or imbecile, awake or sleeping, possesses modesty, which
is capable of being outraged. Modesty of a woman is outraged when the act of the offender is
such that it is shocking and can be perceived as an affront to feminine decency and dignity.30
Mere knowledge that the modesty of a woman is likely to be outraged is sufficient to
constitute the offence without any deliberate intention of outraging her modesty31 § 35432 will
apply to all sexual acts committed or intended against a woman that stop short of
penetration.33

Pooja, purchasing the bouquets and cards for her soul mate, Adnan, was pushed away by one
of the activist who snatched the articles after shouting "Tie or die" and "save Gondhian

26
Vivian Bose, J. in Bhagvati Charan Shukla v. Provincial Government AIR (1947) Nagpur 1
27
Moot Proposition, Page 2 Para 2
28
Baba Khalil Ahamad vs State on 20 April, AIR (1960) All 715, 1960 CriLJ 1528
29
Moot Proposition, Page 2, Para 1
30
Intern Sexual Harassment: Section 354 or Section 354A IPC? ,http://www.livelaw.in/
31
Ramkripal S/O Shyamlal Charmakar vs State Of Madhya Pradesh AIR (2004) SC 1677
32
Section 354 of The Gondhian Penal Code
33
Woman booked for misuse of new anti-stalking law, Jul 05, 2014 00:10 IST, Avantika Mehta,

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culture" like slogans.34 This act of snatching and pushing away is shocking and can be
perceived as an affront to feminine decency and dignity.35
It has also been observed that lack of protest by a woman cannot be an alibi for the
“offender” who has “outraged her modesty”. The landmark judgments by the Apex Court in
the matters of Vidyadharan v. State of Kerala36 and Rupan Deol Bajaj v. Kanwar Pal Singh
Gil37, truly highlights the precarious nature of male chauvinism towards women wherein this
Section comes into rescue.
Thus, because of the aforementioned reasons it can be concluded that Pooja Kumari’s
modesty was outraged by the SSD activists.

B. Respondents Are Guilty Of Criminal Intimidation Under § 506 Of GPC.

In the case of V.M. Sanghi v. Rammorath Gourishankar Tiwari 38 the court opined that a
threat to affect another’s life may amount to criminal intimidation but not a mere threat. The
threat should be given with the intent to cause alarm to the person threatened. The intention
must be to cause alarm to the victim, whether the victim is alarmed or not is of no
consequence.39

The acts of the walking in the mall with having laathis and and shouting anti-religious
slogans is quite alarming. The religious contractors started throwing chairs on the glasses of
the window and on the customers. And here the citizens were not just alarmed in fact a blow
with the laathi resulting in breaking of glass and also injuring the shopkeeper.40

Held in the case of Ramesh Chandra Arora v. The State41“It is not often that a particular act
in some of its aspects comes within the definition of a particular offence in the Indian Penal
Code, while in other aspects, or taken as a whole, it comes within another definition”

Leaving out what is not necessary for our purpose, the section last mentioned is in two parts;
the first part refers to the act of threatening another with injury to his person, reputation or
property or to the person or reputation of anyone in whom that person is interested; the
second part refers to the intent with which the threatening is done and it is of two categories:

1. to cause alarm to the person threatened

2. to cause that person to do any act which he is not legally bound to do or to omit to do
any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat.

34
Moot Proposition, Page 2, Para 3
35
Annexure 2
36
Vidyadharan v. State of Kerala (2004) 1 SCC 215.
37
Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194.
38
V.M. Sanghi v. Rammorath Gourishankar Tiwari (1988) 3 Crimes 318 (Bom).
39
Amulya Kumar Behera v. Nabhagana Behera (1955) Cr LJ 3559
40
Moot Proposition, Page 2, Para 2
41
Ramesh Chandra Arora v. The State, AIR (1960) SC 154.

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In the case of Ramesh v State42 the Supreme Court opined that the conviction under 506 for
criminal intimidation is valid where a father and daughter were threatened with injury by
publication of indecent photographs of the daughter with the intent to cause alarm and also to
get ‘hush money’.

In the case of Chandami v Bhahataran43 the court laid down the threat must be
communicated or uttered with the intention of its being communicated to the person
threatened for the purpose of influencing his mind.

In the instant case, the accused had threatened the complainant with dire consequences and
caused alarm to so many people present in the mall. The locals were slapped, hit and dragged.
Few of them started throwing chairs on the glasses of the window and on the customers and
portrayed the full show of terror. To stop the distress Nishant Kumar had to shout to such an
extent that he permanently became dumb.

Therefore, it is contended that the Respondents are guilty of criminal intimidation under §
506 of GPC.
C. Abetment To Suicide Committed Under § 306
At the stage of framing of charge, even a very strong suspicion founded upon materials
before the judge is enough to form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged. Even a remote link between the activities of an
accused and the facts of the case, directly or indirectly, justify the ground for presuming that
the accused has committed the offence.44 As Pooja kumara was married under the Special
Marriage Act45, and SSD members who believed in preserving the culture of Gondhu religion
which doesn’t allow pre-marital love and pre-maritial public display of affection. And also,
according to this group, inter-religion marriages are nothing but an attack to Gondhu Religion
and should not be allowed.46 As it is already known that SSD chief was engaged in
conspiracy creating such circumstances which provoked or forced the deceased to commit
suicide.

A person is said to have abetted the doing of a thing if he intentionally aids, by any act or
illegal omission, the doing of that thing.47 The aid given must be with the intention to aid the
commission of the crime.48 Abetment may also consist of passive assistance.49

The factual allegations in the present case clearly constitute the alleged offence forming a

42
Ramesh Chandra Arora v. The State, AIR (1960) SC 154.
43
Chandami v Bhahataran (1964) CR LJ 85
44
State of M.P. v. Mohan Lal Soni, 2000 (2) J.C.C. (S.C.) 676.
45
Special Marriage act, 1954
46
Moot Proposition, Page 1, Para 3
47
Indian Penal Code, 1850 § 107; Faguna Kanta Nath v. State of Assam, A.I.R. 1959 S.C. 673.
48
R. Cross, P.A. Jones, R. Card, Cross and Jones’ Introduction to Criminal Law 387 (9th ed. London:
Butterworths 1980).
49
Tuck v. Robson, (1970) W.L.R. 741 D.C.

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strong suspicion supported by the materials presented including the act when Four people
entered Skarchies and started breaking the articles kept in the shop. One of them came
towards Pooja with full force and pushed her hard. The whole episode abetted Pooja to
commit suicide.

The above facts, succinctly point towards the clandestine way in which the various acts were
done, therefore strengthening the ground of a conspiracy between the accused.

ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER §

161 CRPC IS ADMISSIBLE IN THE COURT OF LAW.

It is presented before this honourable court that the statement recorded by the police man
under § 161 of the Cr.P.C is not admissible in the court of law. The rule under this section
states that any statement of a woman relating to the offence under § 354 of the GPC should
be recorded by a woman police officer or any woman officer. 50 First legal inconsistency lies
in the fact that it was recorded by a police man.

2.1 The statement of Pooja Kumari can be admitted before the court of law under s.32 of
the Evidence Act.

Since Pooja Kumari died subsequently51 the statement of her can be considered as a dying
declaration, this gives rise to the question of whether it can be admitted under § 32 of the
evidence act. An important ingredient for a statement under this section to be admitted as a
substantive piece of evidence under § 32 of the Evidence Act is that it has to relate to cause
of death.52 In a case where the dying declaration does not mention anything about the cause
of death but merely other circumstances of other alleged crimes it is not admissible in the
court of law.53 However, Pooja Kumari does not even mention death or the cause of death in
her statement to the police man.54
Therefore, Pooja Kumari’s statement is not admissible.

ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC

WITNESS

The sessions court did not give weightage to his statements and stated that he was unworthy
of credit. Whether Krishna Pahalwan was actually an accomplice in the crime is proved in
(3.1) and the fact that his statement is admissible in the court is proved in (3.2.)

50
Section 161 of the Cr. P. C (inserted by the Criminal Law (Ammendment) Act, 2013, S. 15 (w. r. e. f. 3-12-
2009)
51
Moot Proposiiton, Page 1, Para 4.
52
Clause 1 of section 32 of the Evidence Act; Gunanidhi Sundara v. State of Orissa, 1984 CrLJ 1215 (Ori)
53
Dannu Singh v. Emperor, 25 Cri.L.J. 574
54
Annexure II

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3.1 Krishna Pahalwan is an accomplice to the crime.

An accomplice means a person who has taken part in the commission of a crime. When an
offence is committed by more than one person in concert, every one participating in its
commission is an accomplice.
§ 133 of the Gondhian Evidence Act categorically declares that an accomplice is a competent
witness and the Court may convict on the basis of such evidence and the conviction will not
be illegal simply because it proceeds upon the uncorroborated testimony of an accomplice. 55

Krishna Pahalwan fulfils all the ingredients needed for him to qualify as an accomplice. It is
proved that the he was involved in the incident in the Select Metro Mall as he was recognized
by the owner of the mall, Mr. Nishant Kumar in the Identification test parade who also
suffered injuries in the course of the crime. The report of the identification test parade dated
22.02.2002 states that in the first round of the test parade, the witness, Mr. Nishant Kumar
identified Krishna Pahalwan as Stout and in early 30s. this report, when compared to the
statement of Pooja, which she had given before her death to the police personnel about her
attacker being in his mid-thirties and having a fat belly, seems identical. This proves that
Krishna Pahalwan was present at the mall when the incident took place.56
In the case of R v. Stringer and Banks,” it was laid that the employer was the principal
offender and the employees were innocent agents in a crime which was committed by the
employer and instigated by him to the employees to assist him in the same. Here, the
employees can be called as an accomplice to the crime as they were the once who assisted
their employer in committing a fraud.”

It is contended that Krishna Pahalwan falls under the first category57 of an accomplice which
is Principal in the first degree58. He was physically present at the crime scene and was
thoroughly involved with the SSD gang in committing the crime.

3.2 Krishna Pahalwan’s statement was admissable in the court.

Once corroboration in material particulars is found, the testimony of an accomplice can be

the basis of conviction59. The corroboration by Krishna Pahalwan was found in the material
particulars i.e. the incident. Therefore, his statements are admissible in the court60.
In Lachi Ram v. State of Punjab61, the accused was charged with murder and was convicted
on the evidence of an approver corroborated in material particulars. On the question whether

55
Section 133 of Gondhian Evidence Act 1872
56
R v Stringer and Banks [2011] All ER (D) 48 (Jun); [2011] EWCA Crim 1396
57
(1) Principals in the first and second degree — A principal of the first degree is one who actually commits the
crime. A principal of the second degree is a person who is present and assists in the perpetration of the crime.
These persons are undoubtedly under all the circumstances accomplice.
58
R v Stringer and Banks [2011] All ER (D) 48 (Jun); [2011] EWCA Crim 1396
59
Bhuboni Sahu v. The King, L.R . 76 I.A. 146
60
Rex v. Basherville (1916) 2 K.B. 658

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proper tests were applied in applied in appreciating the approver’s evidence the Supreme
Court held: “It was held by this Court in Sarwan Singh case62 that an approver’s evidence to
be accepted must satisfy two tests”. The first is that his evidence must show that he is a
reliable witness and the second is that his evidence must receive sufficient corroboration.
This case too fulfils the above-mentioned tests. Krishna Pehalwan’s statement is admissible
in the court as He is an authentic witness to the crime and he has sufficient corroboration in
the same. He was involved in the SSD gang led by Udit Kumar. He was recognised in the
sightings by Pooja Kumari and Mr. Nishant Kumar during the incident, which was recorded63
in the statement given by Pooja Kumari64 and the Identification Test Parade.65

Therefore, under § 133 of The Indian Evidence Act 1872, the statement of Krishna Pahalwan
as an accomplice is authentic and admissible in the court.

61
Lachhi Ram v/s State of Punjab on 2nd September (1966) AIR 1967 SC 792, 1967 CriLJ 671, (1967) 69 PLR
79, 1967 1 SCR 243
62
Singh and another vs. The State of Punjab (08.05.1991 - PHHC) : MANU/PH/0660/1991
63
Cbi v. Rajinder Singh Rana Etc. on 18 July, 2016
64
Annexure 2
65
Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra (05.09.2000 - SC) : MANU/SC/0547/2000

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PRAYER

Therefore, it is prayed, in light of the issues raised, arguments advanced, and authorities

cited, that this Hon'ble Court may be pleased to declare/ adjudge/ hold that:

1. DECLARE that the acquittal of the SSD chief Udit Kumar along with other members of
SSD by the session’s court was unjustified.
2. DECLARE that the statement by Pooja Kumari recorded under 161 Cr.P.C is admissible.
3. DECLARE that the witness of the accomplice is worthy of credit and holds legal
weightage.
4. DECLARE that the SSD chief Udit Kumar and other accused persons are guilty of the
offences described under sections 147, 153A & B, 295A, 326, 354, 426, 506 read with 34 and
120 B and 306 of the Gondhian Penal Code, 1860

AND/OR

Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the

Best Interests of Justice, Equity and Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Humbly Pray.
(Counsel for the Petitioner)

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