A 116 PDF

2nd MM (DU) National Moot Court Competition, 2018 A-116
IN THE HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI
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(CRIMINAL APPELLATE JURISDICTION)
SPECIAL LEAVE APPEAL No. ____/2018
In the matter of:
State
(Appellant)
VERSUS
Alok
(Respondent)
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UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA
=================================================================
MEMORANDUM ON BEHALF ON APPELLANT

TABLE OF CONTENTS
 List of Abbreviations………………..……………………………………………....3
 Index of Authorities
Table of Cases………………………………………………………………………...4
Books Referred………………………………………………………………………..7
Statutory Compilations and E-Sources.……………………...……….......……….….7
Legal Databases, Lexicons …………………………………………………..……....8
 Statement of Jurisdiction…………………………………………………………...9
 Statement of Facts…………………………....……………………………………..10
 Statement of Issues………………………………………………………………....12
 Summary of Arguments……………………………………………….……………13
 Arguments Advanced
 Issue 1. – Whether the SLP is maintainable or not?...............................................14
1.1 The petitioner has locus standi……………………………….…….....……………..14
1.2 The High Court has not considered the evidence properly.…..……….....……....18
1.3 Grave injustice has been done……………………………………………...…….18
 Issue 2. – Whether circumstantial evidence and expert opinion is sufficient to

convict a person for charge of murder?...................................................................19
2.1 Circumstances from which the conclusion of guilt is drawn……………………......19
2.2 Testimony of witnesses.....................................................…………………………22
2.3 Statement made by accused……………………………………………………………....24
2.4 Expert opinion are relevant and advisiory in nature…………………………………25
 Issue 3. – Whether the court’s decision of altering the charge of section 302 to
section 325 of IPC stating lack of mens rea is justifiable or not? .........................27
3.1 Inferences drawn from post mortem report…..…………….……………………...27

3.2 Intention and its meaning..........................................................................................30
3.3 The act by which the death is caused falls within 300(3) and 300(4)………….……..30
3.4 Instant case is a rarest of rare crime inviting death penality………….…………….36
 Prayer…………………………………………………………………...…………...39
2

LIST OF ABBREVIATIONS
Sr. No. Abbreviation Full Form
1. All. Allahabad
2. AIR All India Reporter
3. Anr. Another
4. Art. Article
5. Bom. Bombay
6. Cal Calcutta
7. Cr. L.J. Criminal Law Journal
8. Commr. Commissioner
9. Del Delhi
10. DPC Dustan Penal Code
11. Hon’ble Honourable
12. ILR India Law Reports
14. Ori Orissa
15 Ors. Others
16. PC Privy Council
17. P&H Punjab and Haryana
18. RCR Recent Civil Reports
19. S./Ss. Section(s)
20 SC Supreme Court
21. SCC Supreme Court Cases
22 SCR Supreme Court Reports
23 Supp Supplement
24 v. Versus
25. Vol Volume

INDEX OF AUTHORITIES
A. TABLE OF CASES
S. No. Case Name Citation
1. Abdul Waheed Khan V. State Of Ap (2) (2002) 7 SCC 175
2. Achutananda Baidya V. Prafullya Kumar Appeal (Civil) 1009-1019 0f 1987

Gayen And Othrs.
3. Akhtar V. State Of Uttrakhand (2009) 13 SCC 722 (727)
4. Ankush Shivaji Gaikwad V. State Of S.L.P.(Crl.)No. 6287 Of 2011

Maharashtra
5. Antram V. State Of Maharshtra (2007) 13 SCC 356
6. Arunachalam V. P.S.R. Setharatnam AIR 1979 SC 1284.
7. Bachan Singh V. State Of Punjab 1980 Cr L.J. 636(SC)
8. Badu Barua V. State 1996 Cr L.J. 452
9. Bantu V. State Of U.P (2008)11 SCC 113
10. Behari V. State 1953 Cr L.J. 565
11. C.C.E V Standard Motor Products AIR 1989 1298 SC 1298.
12. Chahat Khan V. State AIR 1972 SC 2574
13. Chunilal Mehta & Sons, Ltd. V. Century AIR 1962 SC 1314
Spinning & Manufacturing Co. Ltd
14. Dalbir Kaur V. State Of Punjab AIR 1977 SC 472.
15. Damodar V. State Of Karnataka 2000 SCC(Crl.)90
16. Dayal Singh V. State Of Uttranchal (2012) 8 SCC 263
17. Delhi Judicial Services Assn. V. State Of (1991) 4 SCC 406.

Gujarat
18. Dhananjoy Chaterjee V. State Of West 1994 SCC (2) 220

Bengal

19. Dhupa Chamar V. State Of Bihar (2002) 6 SCC 2834
20. Fowler V. Padget (1978) 7 Tlr 509
21. Ganga Kumar Srivastava V. State Of Bihar (2005) 6 SCC 211.
22. Gentela Vijayavardhan Rao And Anr V. 1966 (6) SCC 241
State Of Ap
23. Hari Vishnu Kamath V. Ahmad Ishaque AIR 1955 SC 233
24. Jai Prakash V. State (Delhi Admn.) (1990) Cr. L.J. 2380
25. Janshed Hormusji Wadia V. Board Of (2004)3 SCC 214 (SC).

Trustees, Port Of Mumbai
26. Javedalam V. State Of Chattisgarh (2009) 6 SCC 450
27. Jayakumar V. State Of Mp AIR 1999 SC 1860
28. Joginder Singh And Anr. V. State Of Punjab (1980) 1 SCC 493
29. Kailash V. State Of Mp (2006) 11 SCC 420
30. Kesar Singh And Anr. V. State Of Haryana 2008 (6) SCale 433
31. Lakshman Naik V. State Of Orissa 2 1994 (3) SCC 381
32. Machhi Singh And Ors. V. State Of Punjab 1983 (3) SCC 470
33. Madan Gopal Kakkar V. Naval Dubey (1992) 3 SCC 204, 221
34. Mahadeo V. State Of M.P. Cr Lj 110
35. Malay Kumar Ganguly V. Dr. Sukumar (2009) 9 SCC 221

Mukherjee
36. Mayurpanashai Shah V. State Of Gujarat AIR 1983 SC 66
37. Molai V. State Of Mp 1999 (9) SCC 581
38. Murari Lal V. State Of Mp AIR 1980 SC 531
39. Naga Khan V. State (1922) 23 Cr. L.J. 111
40. Narain Das V. State 1955 Cr. L.J. 688

41. Nihal Singh & Ors V. State Of Punjab , AIR 1965 SC 26.
42. Nihal Singh V. State Of Punjab AIR 1965 SC 26.
43. Padala Veera Reddy V. State Of A.P. And AIR 1990 SC 79

Ors.
44. Pawan Kumar V State Of Haryana (2003)11 SCC 241 (SC).
45. Pawan Kumar V. State Of Haryana (2003) 11 SCC 241
46. Pritam Singh V. State , AIR 1950 SC 169.
47. R. V. Bedingfield 1879 14 Cox Cc 341
48. Raghuvirdesai V. State 2007 Cri L.J. 829
49. Rajwant Singh V. State Of Kerala 1966 Supp. SCr 230
50. Ram Naresh And Othrs V. State Of AIR 2012 1357

Chattishgarh
51. Saddik @ Lalo Gulam Hussain Shaikh And AIR 2016 SC 5101
Ors. V. State Of Gujarat
52. Sadhu Singh V. Pepsu AIR 1954 SC 271
53. Sanjay Singh V. State Of Delhi 2007 Cr. L.J. 964
54. Santosh Kumar Shanti Bhushan Beriyar V. 2009(6) SCC 498

State Of Maharashtra
55. Sharad Bhirdichand Sarda V. State Of AIR 1984 SC 1622

Maharashtra
56. Shivaji @ Dadya Shankar Alhad V. State Of 2008(15) SC 269

Maharashtra
57. Som Raj V. State Of Hp (2013) 14 SCC 246
58. State Of Ap V. Rayavarapu Punnayya 1977 Cr. L.J. 1
59. State Of Haryana V. Shakuntala And Ors. 2012 (4) SCale 526
60. State Of Maharashtra V. Mh George AIR 1965 SC 722.
61. State Of Punjab V. Pala Singh 1972 AIR 2679
62. State Of Uttar Pradesh V. Ashok Kumar AIR 1992 SC 840.

63. Sudershan Kumar V. State Of Delhi AIR 1974 SC 2328
64. Sundaran V. State 1977 Cr. L.J. 1197
65. Thangaiya V. State Of Tamil Nadu (2005) 9 SCC 650
66. Udaipal V. State 1972 SC 54
67. Virsa Singh V. State Of Punjab AIR 1958 SC 465
68. Visweswaran V. State Rep Sdm 2003 Cri. L.J. 2548
69. Vithal Tukaram More And Ors. V. State Of (2002) 7 SCC 20

Maharashtra
70. Young Husband V. Lufting (1949) 2 Kb 354
B. BOOKS REFERRED
1. BHAGATJIT SINGH, Indian Penal Code Law Finder, By Chawala Publications
Edition 2001.
2. DR. L.M.SINGHVI, Jagdish Swarup’s Constitution of India, 2nd Edition.
3. DR. SIR HARI SINGH GOUR, The Penal Law of India – Analytical Commentary on
the Indian Penal Code, 11th Edition [updated]. Volume III.
4. EJAZ AHMAD, Criminal Trial, 2nd Edition.
5. K.D GAUR, Criminal Law: Cases and Materials, 6th Edition, Lexis Nexis.
6. MADRAS LAW JOURNAL OFFICE, The Criminal Court Manual 8th Edition
(Volume II).
7. P.J. RUST, Law and Practice of Hurt & Homicide, 4th Edition 1973.
8. P.S.VARMA, Murder Trial, 1st Edition, 2008.
9. PRABHAS C. SARKAR, Criminal Major Acts, 6th Edition.
10. RATANLAL & DHEERAJLAL, The Indian Penal Code, 34th Edition.
11. Y.V CHANDRACHUD & V.R MANOHAR, The Indian Penal Code, 31st Edition,
Wadhwa and Butterworths Company, Nagpur.
12. B. SHIVA RAO, The Framing of India’s Constitution, Volume II (1968).
13. C.K. JAIN, Constitution of India, 7th Edition.
14. D.D.BASU, Shorter Constitution of India 13th Edition, Reprint 2006.
15. DR. VIJAY CHITNIS, Indian Constitutional Law – New Challenge.
16. DURGA DAS BASU, Commentary on the Constitution of India, 9th Edition, 2012.
17. G.S. PANDEY, Constitutional Law of India, 7th Edition, 2008.
18. M.P. JAIN, Indian Constitutional Law, 8th Edition, 2012.
19. S.C. KASHYAP, Constitutional Law of India, 2nd Edition, Volume II.

20. V.N. SHUKLA, Constitution of India, 9th Edition, 2006.

21. JETHMALANI & CHOPRA’S, Commentary on Evidence Act 1872, 2nd Edition,
Volume 1.
22. RATANLAL AND DHIRAJLAL’S, Law of Evidence, 21st Edition, Reprint 2006.
23. SUDIPTO SARKAR, Sarkar Law of Evidence, Volume 1, Lexis Nexis.
C. STATUTORY COMPILATIONS
1. Constitution of India, 1950.
2. Indian Evidence Act, 1872.
3. Indian Penal Code, 1860.
4. Supreme Court Rules, 2013.
D. E-SOURCES
1. india.gov.in/my-government/constitution-india
2. judis.nic.in
3. lexisnexis.in
4. livelaw.in
5. manupatrafast.com
6. oxforddictionaries.com
7. SCConline.com
8. supremecourtofindia.nic.in
9. thelawdictionary.org
E. LEGAL DATABASES
1. LexisNexis
2. Manupatra
3. SCC Online
4. West Law
F. LEXICONS
1. AIYAR RAMANATHAN P., Advanced Law Lexicon, 3rd Edition, 2005, Wadhwa
Nagpur.
2. GARNER BRYANA, Black’s Law Dictionary, 7th Edition, 1999.

STATEMENT OF JURISDICTION
The Appellant has approached the Honourable SC of India through SLP under article 136 of
the Constitution of India. The matter has been listed for hearing. Article 136 of Constitution
of India read here as under:
Special leave to appeal by the SC
(1) Notwithstanding anything in this Chapter, the SC may, in its diSCretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, & sentence or
order passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
The memorandum for Appellant in the matters of State v. Alok set forth the Facts,
Contentions and Arguments present in the case.

SYNOPSIS OF FACTS
1. That Anjali, aged 21 years, was working with FDH Bank in Lumbai. She was
engaged to one Bharat who was also working in the same bank. Their marriage was
scheduled for 04th March, 2016. Bharat along with his family members was
scheduled to visit Anjali’s place at Dune for marriage ceremony.
2. That on 2nd March, 2016, at about 05.30 p.m. Anjali boarded the Lumbai-Dune-
Passenger Train from Lumbai Railway Station to reach her home at Dune for
marriage ceremony.
3. That Anjali boarded the ladies’ division of the last compartment. There were other
passengers in the ladies’ division of the compartment along with her. When the train
reached Ponawala, all other lady passengers in the ladies’ division of the compartment
had alighted and, therefore, Anjali also got down along with them and hurriedly
entered the ladies coach attached just in front of the last compartment.
4. That to her surprise there was no body except her in the ladies’ coach. All of sudden
she saw a boy (named Alok) around 17 years of age, standing in the passage and
constantly gazing at her. She sat there quietly for some time but felt uncomfortable.
5. That Alok pounced on her and repeatedly hit her head on the walls of the
compartment. It is further alleged that Anjali was crying and screaming and that she
was dropped/pushed by Alok from the running train on the track and that the side of
her face hit on the crossover of the railway line. Further, it is alleged that in order to
satisfy his lust, Alok also jumped down from the other side of the running train and
after lifting Anjali to another place by the side of the track he sexually assaulted her.
Thereafter he ransacked her belongings and went away from the place with her
mobile phone.
6. That eventually, Anjali was found in a badly injured condition lying by the side of
the railway track and Alok was also apprehended soon thereafter. Anjali was removed
to the Hospital where she succumbed to her injuries on 05th March, 2016.
10

7. That, PW-1 Robin and PW-2 Akbar were also travelling in the general compartment
attached in front of the ladies compartment. Said witnesses heard the cries of the
deceased. PW-3 Chhotu wanted to pull the alarm chain to stop the train but he was
dissuaded by a middle-aged man who was standing at the door of the compartment by
saying that the girl had jumped out from the train and escaped and that in these
circumstances he should not take the matter any further as the same may drag all of
them to Court.
8. That, however, when the train reached Dune Railway Station within a span of 15
minutes, PW-1 and PW-2 rushed to PW-4 Ganpat, the guard of the train and
complained about the incident. It triggered a search, both, for the deceased and the
accused.
9. That the Post-mortem and D.N.A. profiling of the deceased were done. Forensic
Surgeon who conducted the post-mortem stated that there were multiple injuries on
victim’s body and the death was caused due mainly due to Injury No.1 and No.2. 1
First injury was because of hitting of her head at the wall of the compartment of the
train. The second injury was due to committing rape with the victim in the supine
position.
10. That an FIR was registered. Charge sheet filed under Sections 302, 376, 394, 397 and
447 of the IPC.
The trial court convicted the accused under section 302 and sentenced him to death and he
was additionally been convicted u/s 376, 394, 397 and 447 of IPC. On appeal, the high court
maintained the conviction under Sections 376 IPC, 394 read with Section 397 IPC and
Section 447 IPC and the sentences imposed for commission of said offences. The conviction
under Section 302 IPC was set aside and altered to one under Section 325 IPC.2
Aggrieved by the judgement Criminal appeal was filed before the Supreme Court by the
State. The appeal is listed for final hearing.
1
Refer to Moot Problem, Page No.2 (Injury 2).
2
Refer to moot problem page no. 3
11

ISSUES RAISED/ QUESTIONS PRESENTED
ISSUE-1
WHETHER THE SLP FILED UNDER ARTICLE 136 OF CONSTITUTION OF

INDIA, 1950 IS MAINTAINABLE OR NOT?
ISSUE-2
WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION IS

SUFFICIENT TO CONVICT A PERSON FOR THE CHARGE OF MURDER?
ISSUE-3
WHETHER THE HIGH COURT’S DECISION ACQUITTING THE ACCUSED

FROM THE CHARGE OF S.302 OF IPC, STATING LACK OF MENS REA, IS
JUSTIFIABLE?
12

SUMMARY OF ARGUMENTS
1. Whether the SLP filed under Article 136 of Constitution of India, 1950 is
maintainable or not?
It is humbly submitted before this Honourable Court that the present appeal is maintainable
under article 136 of the Constitution of India. Article 136 of the Constitution of India is the
residuary power of SC to do justice where the court is satisfied that there is injustice. The
chain of circumstantial evidence is complete as to regarding the point of the guilt of accused
and HC acquitted the accused. Therefore, there has been a grave injustice. The jurisdiction of
SC can always be invoked when a question of law of general public importance arises. In the
present case, the impugned decision was mechanically passed without application of mind by
the HC. And hence, the judgment is incorrect. Article 136 uses the wording ‘in any cause or
matter’. This gives widest power to this court to deal with any cause or matter, even if it
involves question of fact. Therefore, the present petition is maintainable in the SC.
2. Whether or not circumstantial evidence and expert opinion is sufficient to

convict a person for the charge of murder?
The petitioner has previously proved all the circumstances and corroborated the same with
evidence of DNA samples collected from the scene of the crime, the victim’s body, the body
of the accused as well as the compartment of the train. All the links in the chain of
circumstances have point towards one and only one conclusion that the respondent did his
acts with the intention of putting an end to the victim’s life.
3. Whether the High Court’s decision acquitting the accused from the charge of
S.302 of IPC, stating lack of mens rea, is justifiable?
The honourable High Court has erred in giving the decision and stating that the accused had
no mens rea to commit the murder of the victim by not taking into consideration the post-
mortem report which clearly states that death of the victim had happened due to Injury-1 and
Injury-2 which were inflicted by the accused. The present case clearly falls under the purview
of Section 300(3) and (4) of IPC.
13

ARGUMENTS ADVANCED
1. WHETHER THE SLP FILED UNDER ARTICLE 136 of CONSTITUTION OF

INDIA IS MAINTAINABLE OR NOT?
It is humbly submitted before this Honourable court that the present SLP filed by State is
maintainable in the Supreme Court under Article 136 of the Constitution of India. Article 136
of the Constitution elucidates that Special leave to appeal by the SC -
(1) Notwithstanding anything in this chapter, the SC may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, & sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed forces.
This SLP is maintainable as, firstly the Appellant has locus standi to approach the
Honourable SC [1.1], secondly the HC has not considered the entire gamut of evidence
properly [1.2], and thirdly the grave injustice has been done [1.3].
1.1. The Appellant has locus standi to approach the honourable Supreme Court
It is humbly submitted before this Honourable Supreme Court that the appellant has locus
standi to approach the Honourable Supreme Court in the present case. Article 136 of the
Constitution is couched in the widest phraseology.3 This Court's jurisdiction is limited only
by its discretion.4 It is pertinent to note that the scope of Article 134 providing appeals to the
SC in criminal matters is limited whereas Article 136 is very broad-based & confers
discretion on the court to hear “in any cause or matter”. Therefore, criminal appeals may be
brought to the SC under Article 136 when these are not covered by Article 134.5
3
Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26.
4
Ibid.
5
Sadhu Singh v. Pepsu, AIR 1954 SC 271.
14

In the present case the HC erred in setting aside the order of conviction under Section 302.
The jurisdiction conferred under article 136 on the SC is corrective one & not a restrictive
one. A duty is enjoined upon the Supreme Court to exercise its power by setting right the
illegality in the judgments, it is well-settled that illegality must not be allowed to be
perpetrated and failure by the Supreme Court to interfere with the same would amount to
allowing the illegality to be perpetuated.6
Article 136 is the residuary power of SC to do justice where the court is satisfied that there is
injustice.7 The principle is that this court would never do injustice nor allow injustice being
perpetrated for the sake of upholding technicalities.8
A Constitution Bench of SC9, while explaining the import of the said expression, observed
that: “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or whether it
directly & substantially affects the rights of the parties & if so whether it is either an open
question in the sense that it is not finally settled by this Court or by the Privy Council or by
the Federal Court or is not free from difficulty or calls for discussion of alternative views.”
Again, the SC said in another case10 : “It is not possible to define the limitation on the
exercise of the discretionary jurisdiction vested in the Court by Article 136. The limitation
whatever they may be, are implicit in nature & character of the power itself. It being an
exceptional & overriding power, naturally it has to be exercised sparingly, with caution and
only in special and extraordinary situations. Beyond that, it is not possible to fetter the
exercise of this power by any set formula or rule”
In Arunachalam v. P.S.R. Setharatnam11 , the SC considered an important question having a

bearing on criminal appeals under Article 136. Accused was acquitted of murder charge on
6
Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC).
7
C.C.E v Standard Motor Products, AIR 1989 1298 SC 1298.
8
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC 214 (SC).
9
Chunilal Mehta & Sons, Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314.
10
AIR 1979 SC 1284.
11
AIR 1979 SC 1284.
15

appeal to the HC. The brother of the deceased got leave to appeal to the SC on appraisal of
evidence, the court set aside the order of acquittal & convicted accused. Objection raised on
behalf of accused relating to the maintainability of the SLP under article 136 were rejected.
Also in this case, Chinnappa Reddy J. laid emphasis on the “plenary appellate jurisdiction”
of the SC under Article 136 and observed:
“It is now the well-established practice of this court to permit the invocation of the power
under Article 136 only in very exceptional circumstances, as and when a question of law of
general importance arises. But, within the restriction imposed by itself, this court has
undoubted power to interfere even with findings of fact, making no distinction between
judgments of acquittal or conviction, if the HC, in arriving at those findings, has acted
“perversely or otherwise improperly”12
In Delhi Judicial Service Assn. v. State of Gujarat,13 the SC has held that under Article 136
the SC has wide power to interfere and correct the judgment and order passed by any court or
tribunal in India. In addition to the appellate power, the court has special residuary power to
entertain appeal against any order of any court.
Even if we assume that the case doesn’t involve ‘substantial’ question of law, SC in the
exercise of its power conferred under Article 136 can entertain the present appeal. Article 136
uses the wording ‘in any cause or matter’.14 This gives widest power to this court to deal with
any cause or matter, even if it involves question of fact.
This case establishes the position that the powers of the Supreme Court in appeal under
Article 136 are not restricted by the appellate provisions contained in the Cr.P.C. or any other
statute. Hence, in the present case appellant has locus standi to approach the Honourable SC.
The under Article 136 of the Constitution following principles emerge15:
12
Arunachalam v. P.S.R. Setharatnam AIR 1979 SC 1284.
13
(1991) 4 SCC 406.
14
Pritam Singh v. State, AIR 1950 SC 169.
15
Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211.
16

i. The powers of this Court under Article 136 of the Constitution are very wide but in
criminal appeals this Court does not interfere with the concurrent findings of fact
save in exceptional circumstances.
ii. It is open to this Court to interfere with the findings of fact given by the HC, if the
HC has acted perversely or otherwise improperly.
iii. It is open to this Court to invoke the power under Article 136 only in very
exceptional circumstances as and when a question of law of general public
importance arises or a decision shocks the conscience of the Court.
iv. When the evidence adduced by the prosecution fell short of the test of reliability &
acceptability and as such it is highly unsafe to act upon it.
v. Where the appreciation of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural justice, errors of record &
misreading of the evidence, or where the conclusions of the HC are manifestly
perverse & unsupportable from the evidence on record.
In this very case, the evidence on record clearly points towards the guilt of accused that the
accused had caused severe injuries to the victim which resulted in the death of the victim, the
same being mentioned in the post-mortem report as well. The High Court judgement did not
give the required appreciation to the evidences on record, thus, there has been gross mistake
on the part of the HC with respect to the consideration of evidences.
1.2. The HC has not considered the entire gamut of evidence properly
It is most humbly submitted before this Honourable Court that the appreciation of evidence
was not proper. Firstly, the findings of the post-mortem report were not taken into
consideration. Secondly, chain of Circumstantial evidence in the present case unerringly
point to the guilt of the accused. Thirdly, lack of mens-rea on the part of accused was given
undue importance.
The reasoning accorded by the High Court was that the accused had neither intention nor the
knowledge to cause death. The fact that the deceased survived for a couple of days after the
incident and eventually died in Hospital would also clearly militate against any intention of
17

the accused to cause death. Similarly, in keeping the deceased in a supine position, intention
to cause death or knowledge that such act may cause death, cannot be attributed to the
accused. These reasoning are in clear conflict with the findings of the post-mortem report as
well as the conclusion of the circumstantial chain of evidences produced.
In Nihal Singh v. State of Punjab16, it was held that if there is no evidence to support the
finding of a fact, or the conclusions of the HC are manifestly perverse are based on surmises,
conjectures & are unsupportable by evidence, the SC may go behind the findings of facts
arrived at by the courts below. The SC can interfere with concurrent findings that are vitiated
by errors of law, or the conclusions reached by the court below are so patently opposed to
well established principles as to amount to miscarriage of justice” or where the interest of
justice so requires.17
It is also pertinent to note that HC erred in passing the impugned judgment in criminal appeal
on the ground that the accused had neither the intention nor the knowledge to cause death. In
the present case there are certain material aspects which were lost sight by the HC, therefore
in the present case HC did not appreciate evidence. Hence the present appeal is maintainable.
1.3. That grave injustice has been done.
It is most humbly submitted before this Honourable Court that grave injustice has been done
in the present case. In this case all the circumstantial evidence is clearly establishing that the
HC did not use its faculty. There are no two views present in the present case to favour one.
It is also pertinent to note that SC does not interfere with the sentence passed by lower courts
unless there is an illegality in it, or is unjust in the facts & circumstances of the case, it is
unduly lenient, it involves any question of principle or where the HC does not exercise its
discretion judicial on the question of sentence.18 In the case at hand, the HC did not exercise
its discretion & acquitted the accused for the charge of murder.
16
AIR 1965 SC 26.
17
Dalbir Kaur v. State of Punjab, AIR 1977 SC 472.
18
State of Maharashtra v. MH George, AIR 1965 SC 722.
18

Also the SC does not interfere with the findings of HC on acquittal unless such finding is
clearly unreasonable, or unsatisfactory or perverse, or manifestly illegal or grossly unjust or
is vitiated by some glaring infirmity in the appraisal of evidence or the HC completely
misdirects itself in reversing the order of conviction by the Trial Court or it results gross
miscarriage of justice.19
If the appellant proves that a concurrent decision of two or more courts or tribunal is
manifestly unjust, it will be the duty of SC to remedy the injustice.20 Thus when the judgment
under appeal has resulted in grave miscarriage of justice by some misapprehension or mistake
in the reading of evidence or by ignoring material evidence then it is not only empowered but
is expected to interfere to promote the cause of justice.21 The extent of injustice caused to the
deceased demands the intervention of the Honourable Apex Court. Hence, the present
petition is maintainable.
2. WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION

IS SUFFICIENT TO CONVICT A PERSON FOR CHARGE OF MURDER?
2.1. Conviction on the basis of circumstantial evidence
Case of the prosecution relies on the circumstantial evidence and is one of the relevant
considerations. It should not be understood that in all cases of circumstantial evidence, the
death sentence cannot be given. It is one of the circumstances in formulating the sentencing
policy.22 Many a times, crimes are committed under the cover of darkness when none is able
to identify the accused. The commission of crime can also be proved by circumstantial
evidence.23 Circumstantial evidence has an advantage over direct evidence as it is more
19
State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840.
20
M/s Variety Emporium v. R.M. Mohammad Ibrahim, AIR 1985 SC 207.
21
Subedar v. State of UP, AIR 1971 SC 125.
22
Santosh Kumar Shanti Bhushan Beriyar v. State of Maharashtra 2009 (6) SCC 498; Shivaji @ Dadya Shankar
Alhat v. State of Maharashtra 2008 (15) SC 269.
23
Visweswaran v State Rep SDM, 2003 Cri L.J. 2548.
19

difficult to suppress or fabricate.24 Hence, it is humbly submitted before this court of law that
for a crime to be proved, it is not necessary that the crime must be seen to have been
committed and must, in all circumstances, be proved by direct evidence.25
Clinching circumstances which are unerringly pointing towards the guilt of the accused
beyond any reasonable doubt are as follows:
1. Presence of the accused in the in the passage of ladies coach attached to the last
compartment of the train.26
2. The accused was constantly gazing at her and hence made the victim uncomfortable that
she decided to change the compartment at the next station.27
3. Cries of the deceased were heard from the ladies compartment by a PW-1 and PW-228,
indicating the presence of the victim and accused in the compartment.
4. The accused over powered the deceased and inflicted fatal injuries on her by smashing
(forcibly hitting) her head against the wall of the compartment and made her non responsive
and almost unconscious.29
5. Then, he threw the victim out of the train and jumped out of it and sexually assaulted the
victim.30
6. He ransacked her belongings and went away from the place with her mobile phone.31
24
Manjunath Channa Basapamadalli v. State of Karnataka, 2007 Cri LJ 2964, Ramawati Devi v. State of Bihar,
V.C. Shukla v. State, Nalini’s case, Bodhraj v. State of J&K, Priyadarshini Mattoo’s case, Nitish Katare
murder case.
25
Damodar v. State of Karnataka, 2000 SCC (Crl.) 90.
26
Synopsis of Facts, Para 4.
27
28
29
30
31
20

7. As per the DNA typing the seminal stains collected from the victims garments and vaginal
swabs belonged to the accused.32
It is humbly submitted before this court of law that the cumulative effect of the above
mentioned facts taken together is conclusive in establishing the guilt of the accused. Hence it
is put forth that the chain of circumstances is such as to show that within all human
probability, the rape and murder of the deceased as well as robbery were committed by the
accused and none else.
In Padala Veera Reddy v. State of A.P. and Ors.33 , it was laid down by the Hon’ble
Supreme Court that when a case rests upon circumstantial evidence, such evidence must
satisfy the following tests:
1) The circumstances from which an inference of guilt is sought to be drawn must be

cogently and firmly established;
2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt
of the accused;
3) The circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability, the crime was committed by
the accused and none else; and
4) The circumstantial evidence in order to sustain conviction must be complete and incapable
of explanation of any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should also be inconsistent
with his innocence.
In the case of Bantu v. State of U.P.34 , it has been laid down by the Hon’ble Supreme Court
that where a case rests squarely on circumstantial evidence, the inference of guilt can be
32
Synopsis of Facts, Para 9, Refer Moot Problem Page No.2.( Injury 2)
33
AIR 1990 SC 79.
34
(2008) 11 SCC 113: (2009) 1 SCC (Cri) 353.
21

justified only when all the incriminating facts and circumstances are found to be incompatible
with the innocence of the accused or the guilt of any other person.35
In the case of Pershadi v. State of Uttar Pradesh36, the SC considered that the circumstantial
evidence of the case and held that it is consistent only with the guilt of the accused and
inconsistent with any other rational explanation. So, the accused was rightly convicted and
the appeal was accordingly dismissed.
Adverting to the facts of the present case, it is humbly submitted that the sequence of
circumstances can be called conclusive in nature and there is no unbroken chain leaving a gap
of missing links and such circumstances are consistent with the hypothesis of the guilt of the
accused absolutely conflicting with the innocence of the accused. All the incriminating facts
and circumstances are found to be incompatible with the innocence of the accused or the guilt
of any other person.37
2.2. Testimony of Witnesses
It is humbly submitted before this hon’ble court that PW-1 Robin and PW-2 Akbar were also
travelling in the general compartment attached in the front of the ladies compartment. Said
witnesses heard the cries of the deceased.38 This testimony of the witnesses is direct evidence
which adds as an additional link of the circumstances above formed and indicate the presence
of the deceased and the accused in the compartment.
Section 60 of the Indian Evidence Act, 1872 lays down that oral evidence must be direct. By
direct it is meant that:
1. If the evidence is to be led about a fact which can be heard, a witness must be
produced who says that he heard it;
35
See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR1956
SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR
1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 607).
36
AIR 1957 SC 211
37
Vithal Tukaram More and Others v. State of Maharashtra, (2002) 7 SCC 20
38
Synopsis of Facts, Para No. 7.
22

2. If the evidence is to be led about the fact which can be seen the witness produced
must say that he himself saw it;
3. If the evidence is to be given about a fact which can be perceived by any other sense
or in any other manner the witness produced must say that he perceived it himself by
that sense or in that manner.
Thus, the testimony of PW-1 and PW-2 falls within the ambit of Section 60 of Indian
Evidence Act and thus the evidence is direct as they themselves heard the cries of the victim.
In Achutananda Baidya vs Prafullya Kumar Gayen And Ors39, it was observed “If the
witness refers to a fact which had been heard by the witness, the evidence must clearly
mention that the witness himself had heard utterances constituting the fact.”
Where a witness, a relative and neighbour of accused, deposed that she heard the daughter of
the accused calling her by name and shouting that her father was assaulting her mother and
that at her instance the mother of the accused came to his house, her evidence is admissible as
direct evidence.40
It is further contended that statement made by PW-3 that he wanted to pull the alarm chain to
stop the train but he was stopped by a middle-aged man who was standing at the door of the
compartment by saying that the girl had jumped out of the train and escaped.41 This
transaction forms part of res gestae under Section 6 of Indian Evidence Act, 1872.
The principle laid down in the Section 6 of Indian Evidence Act, 1872 states that facts which
are so connected with the fact in issue as to form part of same transaction are relevant
whether they occurred at the same time and place or different times and place. Facts forming
the part of the same transaction consists of words spoken by the person doing the act, person
to whom such act is done or any other person.42Thus, the statement made by the middle-aged
man formed part of the same transaction and hence admissible.
39
Appeal (civil) 1009-1019 of 1987
40
1984 Cri LJ 209(211) (DB)(Bom.)
41
Synopsis of Facts, Para No.7.
42
BATUK LAL, THE LAW OF EVIDENCE 68 (12 th Ed. 2015)
23

It is contended that the statement is relevant only if it is that of a person who has seen the
actual occurrence and who uttered it simultaneously with the incident as to make it
reasonably certain that the speaker is still under the stress of excitement caused by his having
seen the incident.43
In Mahender Pal V. State44, the place where the murder was committed occupied by a
number of persons apart from the deceased and witnesses those persons who came up
immediately after and were informed by the eye-witnesses as to who the two culprits had
been. The statements of theses persons were held to be admissible.
So, the testimonies of PW-1, PW-2 and PW-3 collectively assure that the accused was present
in the compartment.
2.3. Statement made by the accused adjuring his guilt adds as an element in the
chain of evidence
It is most humbly submitted that when the statement of the accused was being recorded the
accused accepted his guilt.45 Although, this statement of the accused is not a substantive piece
of evidence as it is not taken on oath, therefore, it can be used only for appreciating the
evidence led by the prosecution, though it cannot be a substitute for the evidence of the
prosecution.
In Ramnaresh & Ors. v. State of Chhattisgarh46, this Court held as under: “It is a settled
principle of law that the obligation to put material evidence to the accused
under Section 313 CrPC is upon the court. One of the main objects of recording of a
statement under this provision of CrPC is to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put forward his defence, if the accused so
desires. But once he does not avail this opportunity, then consequences in law must follow.
Where the accused takes benefit of this opportunity, then his statement made
under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used
43
Mahadeo v. State of M.P. 1975 CR Lj 110.
44
AIR 1955 All. 328
45
Moot Problem, Page No.3
46
AIR 2012 SC 1357
24

against him for rendering conviction. Even under the latter, he faces the consequences in
law.”
Thus, this statement of acceptance of guilt by the accused adds an additional link pointing
towards the guilt of the accused.
2.4. Expert opinions are relevant and advisory in nature.
It is contended before the hon’ble court that there is nothing in the Act which requires the
evidence of an expert to be corroborated.47Court can base their decisions on expert evidence,
if it is supported by other evidence, external and internal, including circumstantial evidence.48
It is humbly submitted that a court is not bound by the evidence of the experts, which is, to a
large extent, advisory in nature. The court must derive its decision on conclusion made upon
considering the opinion of experts which may be adduced, and upon taking into consideration
the authorities on the point on which he deposes.49 The expert opinion is not binding on the
court. The court does not become functus officio to draw conclusion if the expert has also
given opinion on the finding.50
Medical evidence has to be appreciated like any other evidence and there is no irrefutable
presumption that a doctor is always witness of truth.51 Opinion on the nature of wound
produced by a blunt instrument is admissible before the court.52A post mortem report is
undoubtedly a very important document, which not only aids the medical officer in
determining the nature of the injuries and cause of death but also helps the courts in
appreciating the evidence in the case.53
47
1994 (3) SCC 381 and Molai v. State of Madhya Pradesh 1999(9) SCC
48
581 Ladhara M v. R
49
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009) 9SCC 221
50
1 S.C. SARKAR, LAW OF EVIDENCE (18 th Edn. 2014
51
Mayurpanashai Shah v. State of Gujarat, A 1983 SC 66
52
Kailash v. State of MP (2006)11SCC 420
53
MODI ON MEDICAL JURISPRUDENCE AND TOXICOLOGY 389 (23rd Edn.)
25

54
In Mohd. Zahid v. State of Tamil Nadu , it was held that sufficient weightage should be
given to the evidence of the doctor who has conducted the post-mortem as compared to the
statements found in the textbooks.
55
In Shivaji v. State of Maharashtra , it was observed by the Supreme Court that the court
must not abandon a SCientific attitude to medical SCience if it is not guilty of judicial
superstition. Therefore, it is submitted that in the instant case, the opinion of the medical
officer who conducted the post mortem should be given due importance. According to
medical evidence the death of the deceased is caused due to the joint result of injuries 1 and
2.
DNA tests exonerate the innocent and help to convict guilty.56 Positive DNA report can be of
a greater significance, where there is supporting evidence, circumstantial evidence,
depending on the strength and quality of the evidence. 60 In the instant case, the DNA
samples i.e. seminal stains collected from the site of the crime and victim’s body were
compared with suspect’s samples, and were found matching. The DNA test so held
conclusively established the guilt of the accused of the offences under S.302 and S.376 of
IPC.57
In Akhtar v. State of Uttrakhand58 , the post-mortem report, if its genuineness is not disputed
by the opposite party, can be read as substantive evidence to prove the correctness of its
contents without the doctor concerned being examined.
Hence, it is humbly submitted before this court of law that as the chain of evidence is
established, circumstantial evidence and expert opinion is enough to convict the accused for
the charge of murder. Further, the testimonies of witnesses and statement of the accused also
add as an additional chain to the events strengthening the above hypothesis.
54
AIR 1999 SC 416
55
AIR 1973 SC 2622
56
Raghuvirdesai v. State 2007 CriLJ 829
57
Sanjay Singh v. State of Delhi, 2007 Cri L.J. 964
58
(2009) 13 SCC 722 (727)
26

Thus, High Court has, while exercising its appellate jurisdiction, erred by unmerited
observation of factual circumstances and erroneous application of law resulted in injustice.
3. THE COURT’S DECISION ALTERING THE ACCUSED FROM THE CHARGE

OF SECTION 302 TO SECTION 325 OF IPC STATING LACK OF MENS REA IS
NOT JUSTIFIABLE.
3.1 Inferences drawn from post mortem report
It is humbly submitted before this hon’ble court that the circumstantial evidence unerringly
pointing towards the guilt of the accused from the grass root level. It is clearly inferred from
the post mortem report that the injuries inflicted by the accused to the victim are the direct
cause of the death of the deceased.
‘Inhalation of blood into the air passage which was caused due to the complications which
had arisen from the blunt injuries sustained due to the fall resulting into anoxic brain
damage.’
It is further submitted that the injury no.1 inflicted on the head of the victim by the accused
resulted into numbness and as a consequence of which her reflexes stopped. In the absence of
natural reflexes, when the accused pushed her out of the moving train she was unable to
respond to save herself and her face had to bear full force of the descent and the victim
received major injuries on her face and head. The blunt injuries sustained to head as result of
blunt impact and fall including aspiration of blood into AIR passages which was due to
keeping the victim in a supine position resulting in anoxic brain damage. All this resulted into
multiple organ dysfunctions which resulted into the death of the victim.
Head injury proven to be fatal in ordinary course of nature
According to Modi’s Medical Jurisprudence59, the fractures of some vital bones, such as
those of the skull and the vertebral column are generally known to be dangerous to life.
59
MODI ON MEDICAL JURISPRUDENCE AND TOXICOLOGY (23 rd Edn.)
27

Secondly, compound fractures involving haemorrhage are dangerous which can cause death
in ordinary course of nature.
In Nga Khan v. State60, this court has held that, although the weapon used was not one that
would necessarily cause fatal injury, the force used was so great as to show that the accused
intended to cause injury on head which is a vital part of the body and is sufficient in the
ordinary course of nature to cause death and hence held guilty of murder.
In Chahat Khan v. State61, the appellant was shown to have given a fatal blow by means of
lathi on the head of the deceased. The Apex Court held that the act clearly shows the
intention to kill the deceased, particularly when the injury inflicted on the head which was a
vital part and evidence showed the injury to be fatal.
In Sundaran v. State62, where the accused successively dealt blows on the head of the
deceased with such force that the temporal bone and skull were fractured and was sufficient
in the ordinary course of nature in causing death, the court held the act of the accused is
covered by S. 300 (3) of IPC.
In Narain Das v. State63, the deceased stood leaning against the railing of verandah, the
appellant attacked him on his head several times causing a serious injury and as a result of
the impact, he fell from the verandah and succumbed to the injuries. The doctor was of the
opinion that either of the injuries was sufficient to cause death. The court held the accused
responsible for causing death of the deceased and was clearly guilty of the offence under
Section 302 of IPC.
Therefore, it is submitted before the court that as per the post mortem report “The death of
victim is mainly the result of the joint result of injuries 1 and 264. It is an undisputed fact that
injury 1 is inflicted by the accused on the head and the head, being a vital part of the human
body, any injury caused to brain even in a mild manner often renders the victim immediately
60
(1922) 23 CrLJ 111; Karuppayya Thevar v. State, (1942) 43 Cri L.J. 521; Demu Santa v. State,
1982 Cr L.J. 1160; Gudar Dusadh v. State of Bihar AIR 1972 SC 952
61
AIR 1972 SC 2574; Suraj Jora v. State (1926) 27 Cri L.J. 766; Sheo Jora v. State (1927) 28 Cri L.J. 452
62
1977 Cri L.J. 1197
63
1955 Cri L.J. 688
64
Paragraph 2 Page no. 2 of Moot Problem
28

unconscious and immobilises the victim.65 Head injuries of a graver nature, such as injury 1
and injury 2, as in the instant case can in ordinary course of nature result in death of the
victim. Therefore, in the instant case, the injury-1 caused to the victim by the callous conduct
of the accused can cause death in the ordinary cause of nature and thereby squarely bringing
it within the purview of Section 300(3) of IPC.
It is also submitted that anoxic brain damage (injury 2) caused to the victim, is a result of
committing rape on her in supine position is caused due to the 1st injury which is
intentionally and knowingly inflicted on her by the accused. Hence, having regard to the
close proximity of time in which they occurred and the inter connection between the same,
the chain of incidents may be taken as one.66 Therefore, injury 2 is caused due to the effect
of 1st injury. It is further submitted that the act of sexual assault committed by the accused
had accelerated her death.
Relevancy and admissibility of Expert Opinion in the instant case
In Dayal Singh v. State of Uttaranchal67, the Apex Court held that the purpose of an expert
opinion is primarily to assist the Court in arriving at a final conclusion. The Court is
expected to analyse the report, read it in conjunction with the other evidence on record, and
then form its final opinion.
It is submitted before this court that the law be bothered about the cause of death only and
not the several mechanisms of death or on the inferences and opinion of the experts. victim
was a normal human being till the accused inflicted injuries described as in injury 1 and
injury 2, which is caused as a result of injury 1 and other injuries on various parts of her
body. The head impacts have resulted in serious brain damage which causes death in the
ordinary course of nature.
65
“Brain injuries even when mild render the patient immediately unconSCious and insensitive” – R.M.
Jhalaand Raju on Medical Jurisprudence, 6th Edn. at p. 361.
66
Basappa and Ors. v. State AIR 1980 Mys. 228; Joginder Singh and Anr. v. State of Punjab (1980) 1 SCC 493
67
(2012) 8 SCC 263; Radha Krishna Nagesh v. State of Andhra Pradesh (2013) 11 SCC 688, Umesh Singh v.
State of Bihar (2013) 4 SCC 360
29

3.2. Intention and its meaning
Intention is a subjective element and in most of the cases, direct proof of intention is not
forthcoming. It has rightly been said that ‘the Devil himself knows not the thought of man’.68
A man’s intention is a question of fact and it can be gathered from his acts. In deciding the
intention of the accused, the court may consider the nature of the weapon used, the part of the
body of the victim chosen by the accused for attack, the number of blows administered, the
force used by the assailant, etc.69
3.3 The act by which death is caused falls within Section 300 Clause 3 and Clause 4
of Indian Penal Code.
3.3.1 Scope and ambit of Section 300(3) IPC
Under Clause 3 of Section 300 IPC, culpable homicide is murder if both of the following
conditions are satisfied, namely:-
a) That the act which causes the death is done with the intention of causing bodily
injury, and
b) That the injury intended to be inflicted is sufficient in the ordinary course of nature to
cause death.
In Virsa Singh v. State of Punjab70, the Apex court held that, whether the injury intended
by the accused and actually inflicted by him, is sufficient in the ordinary course of nature to
cause death or not, must be determined in each case on the basis of the facts and
circumstances of the case and have laid down the facts to be proven in order to bring an act
within the ambit of S. 300(3) IPC. In Abdul Waheed Khan v. State of A.P.71 and in catena
of decisions including the recent case Saddik @ Lalo Gulam Hussein Shaikh & Ors. v.
68
Virsa Singh v. State of Punjab AIR 1958 SC 465: 1958 Cri LJ 818 (SC): 1958 SCR 1495
69
Srikantiah B N AIR 1958 SC 672: 1958 Cri LJ 1251: (1959) SCR 496; Jaspal Singh AIR 1986 SC 683: 1986
Cri LJ 488 (SC): 1986 SCC (Cri) 119: (1986) 2 SCC 100: (1986) 1 Crimes 435 (SC)
70
[1958] S.C.R. 1495; Siri Kishan & Ors. v. State of Haryana (2009) 12 SCC 757
71
(2002) 7 SCC 175
30

State of Gujarat72, the Supreme Court reiterated the proposition laid down by Vivian Bose,
J., in Virsa Singh’s case and have become the locus classicus as it is now engrained in our
legal system and has become part of the rule of law.
Facts which bring the accused’s acts within the purview of 300(3) IPC
1. The presence of the accused in the women’s compartment of the train.
2. That the accused inflicted injury on the body of the deceased – he smashed the head
of the victim against the wall of the compartment and pushed her out of the train.
3. That the intention of the accused was to inflict the very injury which has been
actually found on the person of the deceased.
4. That the injury was of a particular nature, with an intention to strike at a vital part of
the body, and that it was not accidental or unintentional or that some other kind of
injury was not intended; and
5. That the injury was sufficiently serious to cause death in the ordinary course of
nature.
Intention, Knowledge and Motive are relevant factors to determine culpable state of
mind
Actus Non Facit Reum Nisi Mens Sit Rea (act itself does not make the man guilty unless it is
done with a criminal intention) signifies that the act must not make a person guilty, unless
the mind is guilty.73 The word ‘actus’ could be slightly enlarged and paraphrased as:
‘Whatever deed a man may do, it cannot make him criminally punishable, unless his doing
of it was actuated by a legally blameworthy attitude of mind’. It is a cardinal principal of
criminal law that ordinarily speaking, a crime is not committed if the mind of the person
doing the act in question be innocent. It is a principle of natural justice as laid down in
Fowler v. Padget74 that the intent and act, both, must concur to constitute the crime.
Therefore the physical element indicated by the word actus must consist of some
72
AIR 2016 SC 5101; Nankaunoo v. State of U.P., (2016) 3 SCC 317; Richhpal Singh Meena v. Ghasi, (2014) 8
SCC 918; State of U.P. v. Virendra Jora, AIR 2004 SC 1517
73
Young Husband v. Lufting (1949) 2 KB 354
74
(1978) 7 TLR 509
31

manifestation of physical behaviour; the mental element indicated by the word mens must
consist of some operation of man’s mental process.
It can thus be seen that the ‘knowledge’ as contrasted with ‘intention’ signifies a state of
mental realisation with the bare state of conscious awareness of certain facts in which human
mind remains supine or inactive. On the other hand, ‘intention’ is a conscious state of mind in
which mental faculties are aroused into activity and summoned into action for the purpose of
achieving a conceived end. It means shaping of one’s conduct so as to bring about a certain
event. Therefore in the case of ‘intention’, mental faculties are projected in a set direction.
Intention need not necessarily involve premeditation. Whether there is such an intention or
not, is a question of fact.
Therefore, it is submitted before the court that the term mens rea means blame worthy
mental condition constituted by a motive, intention or knowledge as to a particular act.
Motive is something which prompts a man to form an intention. Intention is the desire to
achieve a certain purpose. Knowledge is an awareness of the consequence of the act.
Intention does not always necessarily mean pre-meditation or pre-planning to kill a person.
A man expects the natural consequence of his acts and therefore, he is presumed to intend
the consequence of his acts.
Multiple injuries relevant to infer intention
In Rajwant Singh v. State of Kerala75, court held that under Section 300 (3), it does not
matter that there was no intention to cause death. It does not matter that there was no
intention even to cause an injury of a kind that is sufficient to cause death in the ordinary
course of nature. It does not even matter that there is no knowledge that an act of that kind
will be likely to cause death.76 Once the intention to cause the bodily injury actually found
to be present is proved, the rest of the enquiry is purely objective and the only question is
whether, as a matter of purely objective inference, the injury is sufficient in the ordinary
course of nature to cause death.
75
1966 Supp SCR 230; Also in State of Rajasthan v. Mangi Lal, 1980 RLW 159
76
Dhupa Chamar v. State of Bihar, (2002) 6 SCC 2834; Ruli Ram v. State of Haryana (2002) 7 SCC 3360
32

In Kesar Singh and Anr. v. State of Haryana77, the Apex Court held that “no one has the
licence to run around inflicting injuries that are sufficient to cause death in the ordinary
course of nature and claim that they are not guilty of murder. If they inflict injuries of that
kind, they must face the consequences and they can escape only if it can be shown or
reasonably deduced that the injury was accidental or otherwise unintentional.”
Therefore it is humbly submitted before this Hon’ble court that in the instant case, in order
to bring the guilty intention of the accused within the purview of S. 300(3) of IPC, it is not
necessary to ascertain whether he intended to kill or to inflict an injury of particular degree
of seriousness but whether he intended to inflict such an injury in question and once the
existence of injury is proved, the intention to cause it will be presumed unless the evidence
or circumstances warrant an opposite conclusion.
In Jai Prakash v. State (Delhi Administration)78, the Apex court held that ‘intention’ and
‘knowledge’ of the accused are subjective and invisible states of mind and their existence
has to be gathered from the circumstances, such as the weapon used, ferocity of attack,
multiplicity of injuries and all other surrounding circumstances. In considering whether the
intention was to inflict the injury found to have been inflicted, the enquiry necessarily
proceeds on broad lines as, for example, whether there was intention to strike at a vital or a
dangerous spot and whether with sufficient force to cause the kind of injury found to have
been inflicted. Also, it is not necessary to enquire into every last detail, as a man who has
no knowledge of anatomy, could never be convicted for, if he does not know about vital
organs because he cannot be said to have intended to injure then. Thus, the inquiry should
be broad based and simple and based on common sense;
Therefore, relying on the above precedents, it is submitted that, in the instant factual
situation though the accused has not used any weapon, his intention can be ascertained from
the insensitive or apathetic nature of inflicting head injuries on the defenceless and
vulnerable victim by hitting her head at the wall of compartment of train. It is further
submitted that the as per the post-mortem report, Injury 1 can only be caused by
forcefully hitting the head 4-5 times against the hard flat surface holding the hair from
77
2008 (6) SCALE 433
78
1990 Cri L.J. 2380; Also in State of Rajasthan v. Dhool Singh AIR 2004 SC 1264
33

back.79 Thus, injury 1 is possible only if vital part i.e. head comes into forcible contact with
any flat hard object repeatedly, by intentionally hitting the left forehead with force
continuously on the wall inside the train, by holding her hair from her behind, at least four
to five times at a stretch. It is further submitted that this Court has not laid down any law
that if there is only an intention to cause a grievous injury without any intention to kill, an
accused cannot be convicted of murder. This is quite obvious since it would result in an
absurd situation in cases where a person smashes the head of another and pleads that he had
no intention to kill the victim but only to cause a grievous injury. The accused must be
deemed to know the consequences of his act, unless it was accidental or unintentional.
In State of A.P. v. Rayavarapu Punnayya80 and Abdul Waheed Khan v. State of A.P81, this
court discussed Section 300(3) of the Indian Penal Code and held that, though the intention
of the accused was to commit robbery, when the deceased resisted, in order to achieve the
intended object, he inflicted injuries which resulted in the death of the deceased. Thus,
voluntarily causing grievous hurt resulting in death cannot be simply relegated to an offence
punishable under Section 325 or Section 326 of the Indian Penal Code.82
Hence, it is submitted before the Hon’ble Court that Considering the dictum laid down in the
above cited decisions it is submitted that the intention of the accused was to commit murder,
the act of inflicting injuries and thereby causing the death of the victim cannot be lowered to
a punishment of grievous hurt ruling out the possibility of Section 300(3) of IPC.
Proximity of injury and death not a relevant factor
As per the Exception 2 to Section 299 IPC, where death is caused by bodily injury, the
person who causes such bodily injury shall be deemed to have caused the death, although
by resorting to proper remedies and skilful treatment, the death might have been prevented.
79
Moot Problem Page No. 2 (Injury 1)
80
1977 Cri L.J. 1
81
(2002) 7 SCC 175
82
Thangaiya v. State of Tamil Nadu (2005) 9 SCC 650 and Raj Pal v. State of Haryana (2006) 9 SCC 678
34

In Sudershan Kumar v. State of Delhi83, it was noted as follows: “The fact that the
deceased lingered for about 12 days would not show that the death was not the direct result
of the act of the accused. So also the fact that the deceased developed respiratory failure
which also contributed to her death could not in any way affect the conclusion that the
injuries caused by the accused were the direct cause of her death.”
In Badu Barua v. State84, the court held the accused guilty of murder though the victim
died seven days later in hospital owing to the fracture of the skull caused when the accused
struck victim on head.
Therefore, it is submitted that when the background facts are examined on the touchstone of
the principles of law highlighted, the inevitable result is that the death of victim is caused
due to the injury inflicted by the accused. It is further submitted that the unstable physical
condition of the victim which can even be inferred that she was alive for approximately
three days only because of mechanical support.
3.3.2 Scope and ambit of Section 300 (4) IPC
In order to bring a case with in Clause 4 of Section 300 the following ingredients must be
proved:
1. The act must be imminently dangerous and the person committing the act must
have knowledge that it is so imminently dangerous.
2. That in all probability it will cause death or bodily injury as is likely to cause
death,
3. Lastly, such imminently dangerous act should be done without any reason or
justification for running the risk of causing the death or such injury.
83
AIR 1974 SC 2328
84
1996 Cri L.J. 452; Venkata Nari v. State (1937) Mad. 684; Muniandi Servai v. State (1944) 45 Cri L.J. 733;
Jayaraj v. State of Tamil Nadu 1976 Cri L.J. 1186
35

This clause contemplates only ‘knowledge’ and not ‘intention’. Clause 4 of Section 300
would be applicable where the knowledge of the offender as to the probability of death of a
person(s), being caused from his imminently dangerous act, approximates to a practical
certainty.85 It is designed to cover cases in which the agent not intending to cause death or
to cause such bodily injury as is likely to cause death, has, nevertheless, caused death by an
act knowing that it is so imminently dangerous that in all probability it will cause death. 86
It is respectfully submitted before this Hon’ble Court that, in the instant case, the accused
intentionally inflicted injury 1 on victim and thereby she became dazed and insensitive.87
Injury 1 caused by the accused is per se dangerous.88 It is not due to a single blow because
of the fact that her head was hit repeatedly to and fro motion against a hard flat surface
tearing the base of skull. Further, he knowingly dropped her from the moving train and that
his act was so imminently dangerous as he had the knowledge that in all probability, it will
cause death or bodily injury as is most likely to cause death and it was done for his personal
gain on a victim with respect to whom the accused was in a dominating position, without
any reason or justification for running the risk of causing the death or such bodily injury.
Therefore, the act of the accused squarely comes within the ambit of Section 300(4) of IPC.
It is further submitted that the injury 1 has initiated the morbid chain of events that finally
resulted in death of the helpless victim.
3.4 Instant case is ‘A Rarest of Rare’ crime inviting death penalty
Crimes against women are not ordinary crimes committed in a fit of anger, for property or
for personal gain. They are social crimes. They disrupt the entire social fabric. Hence, they
call for a harsher punishment. Crime against helpless women, children, would come within
the rigour of rarest of rare cases.89
85
Behari v. State 1953 Cri L.J. 565
86
Som Raj v. State of H.P. (2013) 14 SCC 246; Anda v. State of Rajasthan AIR 1966 SC 148
87
“Brain injuries even when mild render the patient immediately unconscious and insensitive” – R.M.
Jhala and Raju on Medical Jurisprudence, 6th Edn. at Page no. 361
88
MCCD Rules (Medical Certification of Cause of Death as per WHO)
36

In the instant case, the savage nature of the crime has shocked the conscience of the society.
The accused is definitely old enough to understand the nature and circumstance of
committing heinous crimes like rape and murder. The act of the accused was very brutal
and without any provocation. The accused deserves nothing less than the extreme penalty of
death. It is submitted that if a lesser penalty is given, the society may lose faith in the
efficacy of the justice system. The barbaric and anti-social nature of the crime committed
by the accused brings the case in the category of rarest of rare cases.
In Dhananjoy Chatterjee v. State of West Bengal90, the Hon'ble Supreme Court held in that
case that the barbaric act of the accused, shaking the faith of the society, the savage nature
of the crime, absence of extenuating or mitigating circumstance lead the court to bring the
case within the category of rarest of rare cases. The Hon'ble Supreme Court further held
that the rising crime rate against woman makes the judicial sentencing a subject of concern.
The object of the sentencing should be to see that the crime does not go unpunished and the
victim of the crime and also the society has the satisfaction that justice has been done. The
courts must not only keep in view of the rights of the accused but also the rights of the
victim of the crime and the society at large which necessitates the imposition of appropriate
punishment.
In Lakshman Naik v. State of Orissa91 and Molai v. Madhya Pradesh92, the Hon'ble
Supreme Court held that the sentence of death appears more appropriate where rape and
murder is committed by an accused having criminal antecedents.
In the instant case, the aggravating factors include the criminal antecedent of the accused.
The accused has caused the brutal death of victim by intentionally inflicting severe injuries
on her head inside the compartment of the train, throwing her out into the railway track
from a running train and then raping the senseless and almost dead body of the victim
which resulted in her death. The act of the accused is inhumane and extremely brutal. The
accused has committed the crime in a dastardly manner. In the present case, the victim of
89
Jayakumar v. State of Madhya Pradesh AIR 1999 SC 1860
90
1994 SCC (2) 220
91
1994 (3) SCC 381
92
1999 (9) SCC 581; Santhosh Kumar Singh v. State of M.P. (2010) 9 SCC 747; B.A. Umesh v.
Registrar General High Court of Karnataka 2011 (3) SCC 85
37

murder is an innocent, defenceless and helpless young woman and it is a cold blooded
murder. It is submitted that none of the mitigating factors indicated by the Hon'ble Supreme
Court in earlier judgments are present in this case. The criminal antecedents of the accused
and his subsequent conduct indicate that he is a menace to the society and he is incapable of
rehabilitation.
Thus, it is most respectfully submitted before this Hon’ble court that in the instant case the
extreme depravity with which the offences were committed and the merciless manner in
which rape was committed brings the case within the category of rarest of rare case which
merit death penalty for the accused.
38

PRAYER
Wherefore, in light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly prayed and implored before the Honourable Court,
that it may be graciously pleased to –
1. DECLARE that the SLP is maintainable under Article 136 of the Constitution of India,
1950.
2. DECLARE that the Hon’ble High Court did err in setting aside the conviction u/s 302
IPC.
3. PASS any such Order as may be necessary and deemed fit and proper in the facts and
circumstances of the case to serve the interest of justice.
And for this act of kindness, the petitioners shall as duty bound as ever, humbly pray.
39

Respectfully submitted
Sd/
(Counsel for the Appellant)
40

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2nd MM (DU) National Moot Court Competition, 2018 A-116

IN THE HONOURABLE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE APPEAL No. ____/2018

In the matter of:

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

MEMORANDUM ON BEHALF ON APPELLANT

 Issue 2. – Whether circumstantial evidence and expert opinion is sufficient to

3.1 Inferences drawn from post mortem report…..…………….……………………...27

MEMORANDUM ON BEHALF ON APPELLANT

Sr. No. Abbreviation Full Form

2. AIR All India Reporter

7. Cr. L.J. Criminal Law Journal

10. DPC Dustan Penal Code

11. Hon’ble Honourable

12. ILR India Law Reports

14. Ori Orissa

16. PC Privy Council

17. P&H Punjab and Haryana

18. RCR Recent Civil Reports

19. S./Ss. Section(s)

21. SCC Supreme Court Cases

22 SCR Supreme Court Reports

25. Vol Volume

MEMORANDUM ON BEHALF ON APPELLANT

S. No. Case Name Citation

1. Abdul Waheed Khan V. State Of Ap (2) (2002) 7 SCC 175

2. Achutananda Baidya V. Prafullya Kumar Appeal (Civil) 1009-1019 0f 1987

3. Akhtar V. State Of Uttrakhand (2009) 13 SCC 722 (727)

4. Ankush Shivaji Gaikwad V. State Of S.L.P.(Crl.)No. 6287 Of 2011

5. Antram V. State Of Maharshtra (2007) 13 SCC 356

6. Arunachalam V. P.S.R. Setharatnam AIR 1979 SC 1284.

7. Bachan Singh V. State Of Punjab 1980 Cr L.J. 636(SC)

8. Badu Barua V. State 1996 Cr L.J. 452

9. Bantu V. State Of U.P (2008)11 SCC 113

10. Behari V. State 1953 Cr L.J. 565

11. C.C.E V Standard Motor Products AIR 1989 1298 SC 1298.

12. Chahat Khan V. State AIR 1972 SC 2574

14. Dalbir Kaur V. State Of Punjab AIR 1977 SC 472.

15. Damodar V. State Of Karnataka 2000 SCC(Crl.)90

16. Dayal Singh V. State Of Uttranchal (2012) 8 SCC 263

17. Delhi Judicial Services Assn. V. State Of (1991) 4 SCC 406.

18. Dhananjoy Chaterjee V. State Of West 1994 SCC (2) 220

MEMORANDUM ON BEHALF ON APPELLANT

19. Dhupa Chamar V. State Of Bihar (2002) 6 SCC 2834

20. Fowler V. Padget (1978) 7 Tlr 509

21. Ganga Kumar Srivastava V. State Of Bihar (2005) 6 SCC 211.

23. Hari Vishnu Kamath V. Ahmad Ishaque AIR 1955 SC 233

25. Janshed Hormusji Wadia V. Board Of (2004)3 SCC 214 (SC).

26. Javedalam V. State Of Chattisgarh (2009) 6 SCC 450

27. Jayakumar V. State Of Mp AIR 1999 SC 1860

29. Kailash V. State Of Mp (2006) 11 SCC 420

31. Lakshman Naik V. State Of Orissa 2 1994 (3) SCC 381

34. Mahadeo V. State Of M.P. Cr Lj 110

35. Malay Kumar Ganguly V. Dr. Sukumar (2009) 9 SCC 221

36. Mayurpanashai Shah V. State Of Gujarat AIR 1983 SC 66

37. Molai V. State Of Mp 1999 (9) SCC 581

38. Murari Lal V. State Of Mp AIR 1980 SC 531

39. Naga Khan V. State (1922) 23 Cr. L.J. 111

40. Narain Das V. State 1955 Cr. L.J. 688

MEMORANDUM ON BEHALF ON APPELLANT

42. Nihal Singh V. State Of Punjab AIR 1965 SC 26.

43. Padala Veera Reddy V. State Of A.P. And AIR 1990 SC 79