TEAM CODE: TC-03

2ND NUSRL NATIONAL TRIAL ADVOCACY MOOT COURT

COMPETITION, 2017

BEFORE THE HON’BLE COURT OF SESSIONS

AT RINCHI

G.R. NO. 1895/17

CASE CONCERNING OFFENCES CHARGED UNDER SEC.S 302, 304B, 498A, 109, 120 B READ

WITH SEC. 34 OF VINDIAN PENAL CODE, 1860

IN THE MATTER OF

STATE OF REALKHAND………………………………………………………..PROSECUTION)

VS

NAKUL KHANNA………………………………………………………...….[ACCUSED NO. 1]

BALDEV KHANNA……………………………………………………………[ACCUSED NO. 2]

REKHA KHANNA………………………………………………………..........[ACCUSED NO. 3]

( DEFENSE )

UPON SUBMISSION TO THE PRINCIPLE SESSION JUDGE

WRITTEN SUBMISSION ON BEHALF OF DEFENSE

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 TABLE OF CONTENTS

Table Of Contents ..................................................................................................................... II

List of Abbreviations ................................................................................................................ V

List of Authorities .................................................................................................................. VII

I. ACTS & STATUTES .................................................................................................. VII

II. CASES .................................................................................................................... VII

III. BOOKS .....................................................................................................................IX

IV. WEBSITES ...............................................................................................................IX

Statement of Jurisdiction..........................................................................................................XI

Statement of Facts .................................................................................................................. XII

Statement Of Charge ............................................................................................................. XIV

Summary of Arguments ......................................................................................................... XV

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

I. WHETHER THE ACCUSED ARE GUILTY OF THE OFFENCE OF

MATRIMONIAL VIOLATIONS UNDER SEC 304B AND 498A OF V.P.C.. ................... 1

A. Demand For Dowry Is Absent .................................................................................... 1

1. In Arguendo: Even If There Was A Demand Money By The Accused That Cannot

Be Called Dowry.............................................................................................................. 2

B. Cruelty And Harassment Were Absent ....................................................................... 3

1. In Arguendo: Even If The Cruelty Happened It Was Not In Accordance With Sec.

498A And 304B ............................................................................................................... 3

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 C. Cruelty Should Be In Connection Of Dowry .............................................................. 4

D. Situations Of Unusual Death ....................................................................................... 5

II. WHETHER THE ACCUSED ARE GUILTY OF THE OFFENCE OF MURDER

AS UNDER SEC. 302 ............................................................................................................ 5

A. There Was Absence Of Mens Rea On The Part Of Accused ...................................... 6

1. Motive Of The Accused .......................................................................................... 7

2. Conduct Of The Accused ........................................................................................ 7

B. There Was Absence Of Any Criminal Act.................................................................. 8

C. Conduct Of Accused ................................................................................................... 8

D. That The Medical Evidence Are Inconclusive In This Case. ...................................... 9

1. In Arguendo : Even If The Deceased Was Attacked Still The Accused Will Not Be

Liable ............................................................................................................................... 9

E. The Doctrine Of Causa Causans Is Frustrated .......................................................... 10

F. Faulty Investigation And Reporting .......................................................................... 10

III. WHETHER THE ACCUSED ARE LIABLE FOR OFFENCE OF ABETMENT

UNDER SEC. 109 OF V.P.C. .............................................................................................. 11

A. Abetment By Instigation ........................................................................................... 11

B. Abetment By Conspiracy Is Absent .......................................................................... 12

1. That There Was No Agreement Between The Accused ........................................ 12

2. In Arguendo: Even If There Was Conspiracy There Was No Illegal Act In The

Pursuance Of Same ........................................................................................................ 12

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 IV. WHETHER THE ACCUSED ARE LIABLE FOR OFFENCE OF CRIMINAL

CONSPIRACY UNDER SEC. 120 B OF V.P.C. ................................................................ 13

A. There was absence of an Agreement For Doing An Illegal Act ............................... 13

B. There Is No Reasonable Ground To Prove Conspiracy ............................................ 14

C. There Was Absence of an Agreement Between The Accused To Conspire ............. 14

V. WHETHER THE ACCUSED ARE GUILTY UNDER SEC. 34 OF THE V.P.C.,

1860………….. .................................................................................................................... 15

A. There Was No Pre-Arranged Plan ............................................................................. 16

B. The Accused Did Not Act In Furtherance Of A Common Intention. ....................... 16

Prayer .................................................................................................................................. XVII

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 LIST OF ABBREVIATIONS

¶ Para

AIR All India Reporter

Art. Article

Cr.P.C. Code of Criminal Procedure

C.B.I Central Board of Investigation

D.W. Defence Witness

D.P.P. District Public Prosecutor

Hon’ble Honourable

I.O. Investigating Officer

Pg. Page. No.

P.W. Prosecution Witness

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec. Sec.

SCJ Supreme Court Journal

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 Edition
Ed.

u/s Under Sec.

HC High Court

MAD Madras

RAJ Rajasthan

PAT Patna

ORI Orissa

ALL Allahabad

CAL Calcutta

DEL Delhi

& And

Ors. Others

Vs. Versus

V.P.C. Vindian Penal Code

UOI Union of India

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 LIST OF AUTHORITIES

I. ACTS & STATUTES

1. THE CODE OF CRIMINAL PROCEDURE,1973

2. THE DOWRY PROHIBITION ACT, 1961.

3. THE INDIAN EVIDENCE ACT,1872

4. THE INDIAN PENAL CODE, 1860.

5. THE PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE ACT,2005

II. CASES

1. Akula Ravinder v. State of A.P, AIR 1991 SC 1142 ..................................................... 5

2. Amiruddin Salebhoy Tyabji v. State of Bombay, (1922) 24 Bom LR 534,542 .......... 11

3. Baby John v. State AIR 1953 TC 251.......................................................................... 11

4. Baijnath v.State of U.P., AIR 1998 SC 1654. ................................................................ 1

5. Bajrang Lal v. State of Rajasthan, AIR 1976 SC 1008. ................................................. 4

6. Bhagwan Das v. Kartar Singh, (2007) 11 SCC 205 ...................................................... 3

7. Dajya Moshaya Bhil v. State of Maharashtra AIR 1984 SC 1717 .............................. 16

8. Devilal v. State of Rajasthan AIR 1971 SC 1444 ........................................................ 15

9. Dharam Pal v. State of Haryana, AIR 1978 SC 1492 .................................................. 16

10. Esher Singh v. State of A.P., (2204) 11 SCC 585: AIR 2004 SC 3030. ..................... 12

11. Gurdatta Mal v. State of Uttar Pradesh AIR 1965 SC 257 .......................................... 16

12. Hethubha v. State of Gujrat, AIR 1970 SC 1266 ......................................................... 16

13. Hussain Umer v. Dalipsinghi, AIR 1970 SC 45 .......................................................... 14

14. Inder Sain v. State of Punjab, AIR 1973 SC 2309 ......................................................... 6

15. Jagir Singh v. State of Punjab, AIR 1968 SC 43 ......................................................... 16

16. Lau v. DPP, (2000) 1 FLR 799 (QBD). ......................................................................... 3

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17. Malan v. State of Maharashtra, AIR 1960 Bom 393. .................................................. 11

18. Md. Moideen v. State of T.N., 2000 Cr.L.J. 4355. ........................................................ 4

19. Mostab Ali Malitha v. State of West Bengal, (2011) 4 Cal.L.T. 373 .......................... 17

20. Nallam Veera Satyanadam v. P.P. High Court of A.P., (2004) 10 SCC 769. .............. 1

21. Nand Kishore v. State of Maharashtra 1995 Cr.L.J. 3706 (Bom.). ............................... 3

22. Papu alias Susanta Das v. State (1999) Cr LJ 738 (SC). ............................................. 16

23. Patel Gethabhai Chatur v. State of Gujarat, AIR 1977 SC 294 ..................................... 6

24. Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 AIR SC 876. ......................... 12

25. Sanjay Dutt v. CBI, Bombay, AIR 1994 SCW 3857 ..................................................... 6

26. Shivnarayan Laxminarayan Joshi and Ors. v. State of Maharashtra. AIR 1980 SC 439

...................................................................................................................................... 14

27. Shyamal Ghosh v. State of West Bengal 2012 (3) Crimes 97 (SC) ............................ 17

28. State (Delhi Administration) v. Gulzari Lal AIR 1979 SC 1382 ................................... 5

29. State (NCT of Delhi) v. Navjot Sandhu, 2005 Cr LJ 3950 SC. ................................... 14

30. State of Andhra Pradesh v. Madhusudhan Rao (2008) 15 SCC 582 ............................. 3

31. State of Andhra Pradesh v. Raj Gopal Asawa, (2004) 9 SCC 157. ............................... 1

32. State of Karnataka v. Eshwariah, 1987 CrLJ 1659 ...................................................... 15

33. State of Maharastra vs Nayar Hans George, AIR 1965 SC 722 .................................... 7

34. Superintendent of Police, CBI/SIT v. Nalini and Ors., JT (1999) 4 SC 106 ............... 12

35. Suresh v. State of Uttar Pradesh AIR 2001 SC 1344 .................................................. 15

36. Suresh v. State of Uttar Pradesh AIR 2001 SC 1344. ................................................. 15

37. Thakur v. State, AIR 1955 All 189. ............................................................................... 9

38. Vimal Chand v. State of Rajasthan, 1999 Cr LJ 128 (Raj.). ........................................ 13

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III. BOOKS

1. Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed. 2006). ....................................... 8

2. Dr. V Krishnamachari, Law of Evidence, Pg. 55, 7th Edition. ........................................ 7

3. Justice K.T. Thomas & M.A. Tashid, The VindianPenal Code, Pg. 213, 34th Edition . 11

4. K D Gaur, Criminal Law Cases and Materials, Seventh Edition, Lexis Nexis, p. 51 ..... 6

5. Modi’s Medical Jurisprudence and Toxicology, Pg. 700, K Mathiharan & Amrit K

Patnayak, 23rd Edition. ........................................................................................................ 5

IV. WEBSITES

1. http://www.scielo.br/pdf/eins/v11n3/en_a22v11n3.pdf............................................... 10

2. https://www.mentalhealth.org.uk/a-to-z/s/smoking-and-mental-health ........................ 8

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 STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Sec. 177 read with Sec. 209

of the Code of Criminal Procedure, 1973.

Sec. 177:

‘177. Ordinary place of inquiry and trial -

Every offence shall ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.’

Read with Sec. 209:

‘209. Commitment of case to Court of Session when offence is triable exclusively by it -

When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively

by the Court of Session, he shall-

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

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

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

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

which are to be produced in evidence;

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

Session.’

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 STATEMENT OF FACTS

1. Aashima and Nakul were batch mates in IIM Lehamdabad while they were pursuing

their MBA. Aashima was from a middle-class family while Nakul was son of one of

the most reputed and rich business tycoons in Rinchi. They both were good friends

and soon they fell in love.

2. In the final year at IIM Lehamadabad, Aashima received a PPO of 28 Lacs from

Piggy Bank Pvt. Limited, while Nakul decide to join his family business.

3. They both decided to get married but Aashima insisted on her parent’s assent before

thing could get any further. Her parents, Mr. and Ms. Chatterjee were initially

reluctant but later they saw their way and happily blessed them. They finally got

married on 25th January, 2015 with all the grandeur. Both the families were very

happy and Nakul’s family welcomed their new daughter.

4. After the marriage, Aashima told Nakul that she wished to decline the PPO from

Piggy Bank Pvt. Ltd. as she wanted to settle down in her new life and wished to spend

some quality time with Nakul and his family. She even assured Nakul that once she

came up to pace with her life, she would seek a better job opening and then move to

pursue her Ph.D.

5. In August 2016, Nakul’s family business suffered a huge loss in the business. For this

Nakul was suffering through a lot of imbalances as this was his first year in the family

business and he blamed himself for their loss.

6. After some days Aashima’s health started to deteriorate. She would refuse to converse

with anyone and stayed alone most of the time. They regularly consulted their family

doctor and made sure that Aashima’s health was properly taken care of.

7. On 18th November 2016, Mr. Chatterjee called Nakul’s father and very rudely asked

him to take proper care of Aashima. Nakul’s father was very much tensed that day as

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 Aashima was running a fever and he had stayed up all night with Nakul to take care of

her. Listening to his harsh words, Nakul’s father lost his cool and asked to him at least

visits his ailing daughter once before he would point fingers at us.

8. On New Year’s Eve i.e., on 1st January 2017, they had planned on a dinner to

celebrate and pray for a better year. Nakul had even been to the office on New Year’s

for some urgent work but Aashima wanted him to take the day off and spend some

time with her. I immediately pacified her by promising a getaway as soon as some

business matters would settle down.

9. On 17th Feb. 2017, Nakul planned to come back home for lunch at around 2:30 pm.

As soon as he entered the house, he was shocked to see Aashima lying unconsciously

in a pool of blood at the foot of the staircase.

10. Nakul then immediately rang his father, who had gone out with his mother for an

official lunch with their business partner, and within few minutes his father was back

home. As soon as Nakul’s father came in he helped Nakul in carrying Aashima to the

bedroom and hurriedly called the family doctor and Aashima’s father.

11. The instance was reported to the police by deceased father, P.W-1 mentioning that

three accused have killed his daughter. FIR was registered under Sec. 498A, 304B,

302, 109, 120B and 34 of the V.P.C..

12. Police after being informed of the incident rushed to the spot and collected evidences

and sent the dead body for post-mortem.

13. On completion of the investigation, the police forwarded the Charge sheet to the

Magistrate’s court which committed the case to the Court of Sessions at Rinchi.

Charges have been framed against the accused.

14. The case is set for trial.

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 STATEMENT OF CHARGE

In light of the charges raised the Counsel on behalf of defence, most respectfully submits

before the Hon’ble Court of Sessions at Rinchi to consider the following charges as framed

by the prosecution in accordance with Chapter XVII of Code of Criminal Procedure, 1973:-

I. Nakul Khanna has been charged for offences punishable under Sec.s 302, 498A,

304B, 120B read with Sec. 34 of the VvindianPenal Code for crimes of Murder,

Dowry Death, Subjecting a women to cruelty, Criminal Conspiracy and Common

Intention;

II. Baldev Khanna has been charged for offences punishable under Sec.s 304B, 498A,

109, 120B read with Sec. 34 of the VvindianPenal Code for crimes of Dowry Death,

Subjecting a woman to cruelty, Abetment, Criminal Conspiracy and Common

Intention; and

III. Rekha Khanna has been charged for offences punishable under Sec.s 304B, 498A,

109, 120B read with Sec. 34 of the VvindianPenal Code for crimes of Dowry Death,

Subjecting a woman to cruelty, Abetment, Criminal Conspiracy and Common

Intention.

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 SUMMARY OF ARGUMENTS

I. WHETHER THE ACCUSED ARE GUILTY OF THE OFFENCE OF

MATRIMONIAL VIOLATIONS UNDER SEC. 304B AND 498A OF V.P.C.

It is humbly submitted before the Hon’ble court that for the scope and application of this

section there should be harassment or cruelty pertaining to dowry and of the sufficient nexus

with the incidence which is not the case in this particular case making it reasonably

challengeable also the fact that the incidence based on which the charge of these sections are

imposed are not in the consonance with the issue in hand and have no nexus whatsoever

makes it clear that charges under these particular section cannot be applied on the accused

thus rendering them free of the charges .

II. WHETHER THE ACCUSED ARE GUILTY OF THE OFFENCE OF

MURDER AS UNDER SEC. 302

It is humbly submitted before the Hon’ble court that the accused are not guilty for the offence

under section 302 of the V.P.C. as for the scope of this section to be applied there should be

mens rea which was absent in the case in hand there is also the absence of actus reus in this

particular case and the only grounds on which the charge has been levied on the accused is on

the basis of speculation and has no ground whatsoever. The presence of the justification that

the incidence was an accident cannot be ruled out. Thus creating a reasonable doubt about the

same.

III. WHETHER THE ACCUSED ARE LIABLE FOR OFFENCE OF

ABETMENT UNDER SECTION 109 OF V.P.C.

It is humbly submitted before the Hon’ble court that for the scope of this section there should

be a direct nexus between the event of the crime and the abetment when on link can be drawn

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then abetment cannot be said to have happened also the also for the commission of the

offence

IV. WHETHER THE ACCUSED ARE LIABLE FOR OFFENCE OF

CRIMINAL CONSPIRACY UNDER SECTION 120B OF V.P.C.

It is humbly submitted before the Hon’ble court that for the scope of the section to be applied

there must be a direct evidence for the same which in this case is absent the fact that nothing

was said done or written in regards to the alleged conspiracy thus no proof of it also nothing

was done in the furtherance of same as the death was because of the accident thus making it

clear that no conspiracy was involved.

V. WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 34 OF THE

V.P.C., 1860

It is humbly submitted before the Hon’ble court that for this section to be taken into account

there has to be a common intention and involvement in commission by one of the member as

the death is under natural circumstances it cannot be call as in furtherance of the common

idea thus making the accused not liable for the same.

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 ARGUMENTS ADVANCED

I. WHETHER THE ACCUSED ARE GUILTY OF THE OFFENCE OF

MATRIMONIAL VIOLATIONS UNDER SEC 304B AND 498A OF V.P.C..

It is humbly submitted before the Hon’ble Court that the matrimonial offences under Sec.

304B and Sec 498A were not committed by the accused. For sake of these Sections to be

applied there must be a demand which is unlawful in case of Sec 304B1 and willful and

wrongful conduct which causes injury or danger to life and limb or health of the women for

the scope of Sec 498-A2.

In the case in hand [A] the demand for dowry was absent; [B] harassment or any such cruelty

was absent on the part of all the three accused [C]; and the death of the deceased was purely

accidental.

A. DEMAND FOR DOWRY IS ABSENT

It is humbly submitted before the Hon’ble Court that the demand of dowry means that the

money security or property demanded was as the consideration for marriage 3 and not every

demand by the family of the husband can be considered as dowry4.

It is also submitted that it is up to the prosecution to prove that the dowry is demanded and if

not proven it will render accused not guilty5. In the case at hand is such that the demand of

dowry exists or not and as such it cannot be determined by presented facts.

1 M.K. Kanchagar v. State of Karnataka, AIR 2013 SC 1504.

2 Sec. 498 of V.P.C., 1860.
3 Nallam Veera Satyanadam v. P.P. High Court of A.P., (2004) 10 S.C.C. 769.
4 State of Andhra Pradesh v. Raj Gopal Asawa, (2004) 9 S.C.C. 157.
5 Baijnath v.State of U.P., A.I.R. 1998 S.C. 1654.

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It is humbly submitted that the demand of dowry was never made by the accused and it was

something which was just a speculation of the PW. 1 based on the months old hearsay

statement of the Accused no. 3 which the prosecution has no ground to prove it on.

The alternate possibility which cannot be ruled out is that the request of money made by the

deceased in the as given in the statement of PW.5 and furthered in the letter to her was to

repay the loans of her father which she had most recently learnt about going by the statements

deceased learnt of her father’s loan on November 1st 2016 and she had requested the money

from PW.5 on November 3rd 2016 and the letter to further it was written on November 7th

2016 thus it brings up a reasonable doubt to light of the facts6.

1. IN ARGUENDO: EVEN IF THERE WAS A DEMAND MONEY BY THE ACCUSED THAT CANNOT

BE CALLED DOWRY

It is humbly submitted that not every demand can be termed as dowry as if the demand of

money was for some sort of personal use like for expanding business then it cannot be termed

as dowry7.

It is humbly submitted that in the case at hand the accused had a business loss and before the

same there was no problem that the deceased was facing and it was only after the business

loss that some problem started, this proves the point that even if the demand of money was

made it was not as the consideration to marriage and thus not dowry.8

6 Moot Proposition, Pg. 37, Exhibit 9.

7 Raj Gopal, supra note 4.
8 Nallam Veera, supra note 3.

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 B. CRUELTY AND HARASSMENT WERE ABSENT

It is humbly submitted before the Hon’ble Court that as Sec 304B and 498A are not mutually

exclusive.9 In this regard the cruelty should be in connection to dowry or should be of a

nature that it causes danger to life limb or health of the woman i.e., there must be harassment

of some form10. Though any kind of cruelty is covered for the scope of both the Sections but

there must be a proximate live link between harassment and the after effects of the same.11.

Harassment which is covered in Sec 498A, V.P.C. cannot be called harassment if there is no

sufficient nexus between two incidences.12 In the present case the situation on which the

prosecution has relied are the independent incidences of matrimonial disputes13 and not

matrimonial harassment. As stated in various witness statements Nakul Khanna (Accused No.

1) was a loving and caring husband14. Though there were instances where the couple had

fights but the Accused No. 1 made sure that these fight do not continue and also the

frequency of these fights makes out that there was no nexus between the two incidences of

the same15. Thus proving the point that there was no harassment in this case.

1. IN ARGUENDO: EVEN IF THE CRUELTY HAPPENED IT WAS NOT IN ACCORDANCE WITH

SEC. 498A AND 304B

Sec. 498A talks about the fact that the cruelty should be of the nature that drives the woman

to commit suicide or cause grave injury or loss to life, limb or effect health of a woman

(mental or physical). Here in this case such a situation does not arise. Neither was there a

9 Bhagwan Das v. Kartar Singh, (2007) 11 S.C.C. 205.

10 Ibid.
11 Nand Kishore v. State of Maharashtra 1995 Cr.L.J. 3706 (Bom.).
12 Lau v. DPP, (2000) 1 F.L.R. 799 (QBD).
13 Moot Proposition, Pg. 13, Exhibit 3.
14 Moot Proposition, Pg. 18, Para. 1.
15 State of Andhra Pradesh v. Madhusudhan Rao, (2008) 15 S.C.C. 582.

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demand of money property and security by the accused thus making Sec 498A not applicable

in this case.

It is humbly submitted before the Hon’ble Court that the Sec. 498A and Sec. 304B cannot be

considered mutually exclusive and if Sec 498A is not applied then 304B cannot be claimed

for the scope of the case and as the ingredients of Sec. 498A are not applied thus non

application of Sec. 304B16.

C. CRUELTY SHOULD BE IN CONNECTION OF DOWRY

It is humbly submitted before the Hon’ble court that for Sec. 304B to be applied all the

ingredients of dowry death must be fulfilled which are if not proven would render the

accused not guilty17. These provisions are [A] unusual death; [B] within7 years of marriage;

[C] must be subjected to cruelty; [D] Cruelty should be in connection to demand of dowry.

It is humbly submitted that for the scope of Sec. 304B to be applied the cruelty should be in

the connection to dowry i.e. the harassment and cruelty should be in regard to further the

demand of dowry or to ensure delivery of dowry.18

In the present case, though there was no case of cruelty but even for the sake of calling it so it

cannot be regarded in the same sense as being the cruelty for the demand of dowry for never

was the attempt made to demand for money and neither was the incidences of cruelty made

into account19.

16 Bhagwan, supra note 9.

17 Bajrang Lal v. State of Rajasthan, A.I.R. 1976 S.C. 1008.
18 Md. Moideen v. State of T.N., 2000 Cr.L.J. 4355.
19 Moot Proposition, Pg. 46, Appendix I.

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 D. SITUATIONS OF UNUSUAL DEATH

It is humbly submitted before the Hon’ble Court that the death of the accused cannot be

considered death in unusual circumstances because it was the case of accident and it was held

that accident is to be considered death under normal circumstances.20

In the postmortem report, though it stated that the death is caused by blood loss from an

incision wound on carotid artery but it is not clear that what is the nature and the dimensions

of the wound. The fact that it can be caused by a staircase fall cannot be ruled out. As it is a

well - known fact that blunt object can cause incision cuts.21 The postmortem report has

widely disregarded the fact that the deceased was suffering from pulmonary edema and had a

decompensated heart which is usually caused by heart failure22. The two medical witnesses

which are available give contrasting statements about the death of the deceased and in case

two medical witnesses give contradictory and balanced statements the side which supports

the case of the accused is taken into account23 thus creating a reasonable doubt about the

death of unnatural nature.

Therefore, it is humbly submitted before this Hon’ble Court that the charge under Sec. 304B

and 489A of the V.P.C. has not been made out due and they should be acquitted of the same.

II. WHETHER THE ACCUSED ARE GUILTY OF THE OFFENCE OF

MURDER AS UNDER SEC. 302

It is humbly contended before this Hon’ble Court that the accused are not guilty for

committing murder as under Sec. 302, V.P.C. If it can be proved that even one of the

elements that constitute the crime of culpable homicide amounting to murder by the husband

20 Akula Ravinder v. State of A.P, A.I.R. 1991 S.C. 1142.

21Modi’s Medical Jurisprudence and Toxicology, Pg. 700, K Mathiharan & Amrit K Patnayak, 23rd Edition.
22 Moot Proposition, Pg. 23, Exhibit 5; Moot Proposition, Pg. 56, Para 3.
23 State (Delhi Administration) v. Gulzari Lal A.I.R. 1979 S.C. 1382.

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and his relative has not been successfully proved by the prosecution 24, otherwise the accused

cannot be held criminally liable for that act25. In the matter at hand, it has been wrongfully

alleged that accused has murdered his wife in furtherance of non-fulfillment of dowry

demand. It should be considered: [A] There was absence of mens rea on the part of accused;

[B] Lack of substantial evidence to prove the actus reus; [C] The Medical Reports are

inconclusive as to the cause of the death; [D] The doctrine of causa causans (link of the

cause) stands frustrated and mostly absent; [E] the faulty investigation of the case.

A. THERE WAS ABSENCE OF MENS REA ON THE PART OF ACCUSED

It is well settled that a person is not to be made criminally liable for a serious crime unless he

intended to cause or had knowledge that the act was likely to cause the effect which

constitutes the crime.26 Mens rea is an essential element to constitute a criminal offence27

which simply means the purpose of design or doing of an act forbidden by criminal law.

Intention and motive both form a very essential ingredient of culpable homicide and the

accused not possessing any of the two ingredients should not be trailed. Intention is an

operation of the will directing an overt act, while motive is the feeling that prompts the

operation of a will, the ulterior of the person willing.28

It is humbly submitted that motive being the state of the mind of the person can only be

judged in a various ways which are: [1] Motive [2] Intention [3] Conduct.

24 Laxminath v. State of Chhattisgarh, A.I.R. 2009 S.C. 1383.

25 Varun Chaudhary v. State of Rajasthan 2011 Cr.L.J. 2177.
26 Inder Sain v. State of Punjab, A.I.R. 1973 S.C. 2309, Patel Gethabhai Chatur v. State of Gujarat, A.I.R. 1977
S.C. 294, Sanjay Dutt v. CBI, Bombay, A.I.R. 1994 S.C.W. 3857.
27 Mayer Hans George, A.I.R. 1965 S.C. 722.
28 K D Gaur, Criminal Law Cases and Materials, Seventh Edition, Lexis Nexis, Pg. 51.

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 1. MOTIVE OF THE ACCUSED

It is humbly submitted to the Hon’ble Court that motive is a strong tool to judge that weather

a person may have a mens rea for the commission of the act29. This basically means that what

end one wished to achieve is motive30. In the case in hand if it is alleged that dowry will be

the motive it is pleaded by the counsel for defense that the Accused had never tried to

demand the dowry from the father of the deceased.

The demand of dowry cannot be called a motive for the murder for this case as the demand in

itself is missing and if considered present on the basis of the words heard by PW. 1 over the

telephonic conversation with Accused no. 231. It is still a far-fetched argument to constitute

the motive to kill a person in cold blood also the previous incidences have no nexus with the

case at hand as it cannot be reasonably related to the same.

2. CONDUCT OF THE ACCUSED

It is humbly submitted before the Hon’ble Court that the Accused had been a loving and

caring husband and apart from a few incidences which happened with no particular nexus in

itself should not be related as the past conduct of the Accused in the regards of commission

of the crime32.

The conduct of the person was something which was natural in this case as if a smoker is

involved it is given in the witness statements under s. 161 Cr.P.C. that Nakul was sitting on

the staircase and the bottom of the stair case being infested with broken bangles it is not

29 State of Maharastra vs Nayar Hans George, A.I.R. 1965 S.C. 722.

30 Dr. V Krishnamachari, Law of Evidence, Pg. 55, 7th Edition.
31 Moot Proposition, Pg 11, Para. 2.
32 Moot Proposition, Pg 18, Para. 1.

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likely that he would sit at the bottom and being a regular smoker the way handle stress is by

smoking a cigarette thus explaining the residuals of cigarette on the stairs33.

B. THERE WAS ABSENCE OF ANY CRIMINAL ACT

Actus reus connotes a wrongful act34. Thus, in case of culpable homicide, actus reus would

be the physical result of the conduct of the accused that led to the death of the victim. In the

instant matter, actus reus is negated by way of [1] the witness statements and [2] medical

report and expert witnesses and [3] conduct of the accused.

C. CONDUCT OF ACCUSED

The facts need to be inferred the way they are supposed to be. In no circumstance it was the

case that Accused had left his place of work for going home and it is a mere speculation. The

investigation was not done with proper methodology and various key points to the case

remain unanswered by the investigation. The act and conduct of the Accused No. 1 is very

justified going to the pointer analysis of the same: The accused was in shock and had no idea

of how was he supposed to react thus called his father before doing anything else.

It is humbly submitted that no records of previous violence other than that of during college

days can be collected making this act of it not so relevant for the case. It is also submitted that

the bad pervious bad character is not relevant as the evidence for the trail until and unless it is

of utmost importance to the case in hand and as the only record of the violence available is of

the college days it must not be regarded as in the nexus of the crime.

33 Mental Health Foundation, Smoking and Mental Health, (May. 05, 2017, 10:04 AM),
https://www.mentalhealth.org.uk/a-to-z/s/smoking-and-mental-health.
34 Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed. 2006).

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 D. THAT THE MEDICAL EVIDENCE ARE INCONCLUSIVE IN THIS CASE.

The post-mortem examination is a very important piece of evidence in criminal trials.35 The

Prosecution submits that the death of the deceased took place due to the excessive blood loss

from the cut in the carotid artery36. A cut on the carotid artery is though unusual in cases of a

staircase fall and requires a sharp object. It is also a fact that the blunt object can cause the

incision wounds37. And also there were abrasions on the bony regions such as left knee, left

shoulder and both the mandibles which further the point of possible accident. Also, the left

clavicle was found to be fractured, probably because the deceased would have landed on the

left side of the shoulder. The medical report has not stated anything about the nature of the

cut and neither has it stated the dimensions of the same. The post mortem report has also

failed to address the presence of decompensated heart38 and the presence of the pasty material

which may have been the sturgeon tablet which known to cause drowsiness to a person who

might have led to a possible staircase fall39. Thus, the defense submits that the injury on the

body of the deceased was not inflicted by the accused but was caused by the staircase fall as

the incision wounds can be caused by blunt object as well.

1. IN ARGUENDO : EVEN IF THE DECEASED WAS ATTACKED STILL THE ACCUSED WILL

NOT BE LIABLE

It is humbly submitted that the death of the deceased happened due to the heart failure which

came into be because of pulmonary edema and the deceased being diabetic. In this regard it is

well established fact that the assailant will not be responsible if by the autopsy report it can

be established that the death of the person was by a natural cause40. Also it has been decided

by the Hon’ble Supreme Court that accidents should be termed as death under normal
35 Thakur v. State, A.I.R. 1955 All 189.
36 Moot Proposition, Pg. 23, Exhibit 5.
37 Modi, supra note 21.
38 Moot Proposition, Pg. 18, Exhibit 5.
39 Modi, supra note 21.
40 Modi, supra note 21, at pg. 749

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circumstances41. Also from review of the autopsy report it is clear that there is a possibility of

death by heart failure42 which is causes decompensated heart.43

E. THE DOCTRINE OF CAUSA CAUSANS IS FRUSTRATED

It is humbly submitted that there is no link which can be established between the death and

the presence of mens rea or with the actus reus thus frustrating the link of cause in the same

regards.

It is also submitted that for the link to be established there must be a reasonable justification

for the same but due to the lack of the evidence and presence of the alternate facts it must be

made clear that there was no link in the incidence and the previous issues of the family if

there were any.

F. FAULTY INVESTIGATION AND REPORTING

It is humbly submitted before the Hon’ble that the investigation and reporting is not done in a

proper manner. F.I.R. report is missing [1]; there was no attempt made to get the blood

sample which was collected [2]; though doubtful about it IO never tested Nakul for the

presence of alcohol in his body [3]; work of the forensics was disregarded [4]; And no

attempt was made to recover the weapon which allegedly caused incision wound [5] Prove

the in adequate evidence to prove the guilt of the accused and thus creating a reasonable

doubt for the same.

Therefore, it is humbly submitted before this Hon’ble Court that the charge under Sec. 302 of

the V.P.C. has not been made out due and they should be acquitted of the same.

41 Akula supra note 20

42 Moot proposition pg. 27 Exhibit 5
43 Sandrigo Mangini & Philippe Vieira Pires, Decompensated Heart Failure (May. 05, 2017, 12:50 PM)
http://www.scielo.br/pdf/eins/v11n3/en_a22v11n3.pdf

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III. WHETHER THE ACCUSED ARE LIABLE FOR OFFENCE OF ABETMENT

UNDER SEC. 109 OF V.P.C.

It is humbly submitted before the Hon’ble court that the accused are not liable for the offence

of abetment under Sec. 109 of V.P.C.. Sec. 107 defines abetment. It is well known that an act

of abetment may take place in one of three ways i.e., (1) Instigation, (2) Conspiracy, or (3)

Intentional aid.44 It is humbly submitted that Mr. Baldev Khanna and Mrs. Rekha Khanna

never abetted Nakul Khanna for the same in arguendo it was done.

A. ABETMENT BY INSTIGATION

A person is said to instigate another to commit an offence when he actively suggests or

stimulates him to act by any means or language.45 Direct or indirect, it may even be in the

form of hints.46 But a reasonable certainty the consequence must be spelt out.47 The things

said in anger or in emotion without the idea of the consequences cannot be termed as

instigation and hence not abetment.

In the case at hand even though there are evidences of Accused No. 3 (Rekha Khanna) calling

the deceased a bad luck to the family neither can it be termed as instigation enough and nor it

can be connected to the mens rea of Accused no. 3 as for Accused no. 2 there is no evidence

of him being even rude to the deceased thus the idea that he could have instigated the

Accused no. 1 to commit the murder is not even a question because of the fact that he had a

heated conversation with the deceased’s father cannot be termed as abetment.

It is also submitted that the incidences quoted by the prosecution as the proof for the

instigation being the statement by Accused No. 3 (Rekha Khanna) during a telephonic

44 Malan v. State of Maharashtra, A.I.R. 1960 Bom 393.

45 Amiruddin Salebhoy Tyabji v. State of Bombay, (1922) 24 Bom L.R. 534,542.
46 Baby John v. State, A.I.R. 1953 T.C. 251.
47 Justice K.T. Thomas & M.A. Tashid, The VindianPenal Code, Pg. 213, 34th Edition

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conversation between PW.1 And Accused No. 2 (Baldev Khanna) and was made months

before the incidence thus frustrating the causa causans of the abetment.

B. ABETMENT BY CONSPIRACY IS ABSENT

In order to constitute the offence of abetment by conspiracy, [1] there must be a combining of

two or more persons and [2] an illegal act or omission must also take place in pursuance of

conspiracy.48 [3] Also, knowledge of the same to all is not required.

1. THAT THERE WAS NO AGREEMENT BETWEEN THE ACCUSED

‘Agreement’ is the rock bottom of conspiracy.49 It is sine qua non for constituting the offence

of criminal conspiracy. For the offence of conspiracy some kind of physical manifestation of

agreement is required to be established though the express agreement need not be proved 50.

To constitute a conspiracy meeting of minds of two or more persons for doing an act by

illegal means is the first and primary condition.51 This very condition is absent in the case at

hand

In the instant matter, as the very reason of the conspiracy cannot be established. It is stated

that there was no scope of conspiracy as the demand for dowry was never made by the

accused from the family of the deceased and no evidence of that other than a speculation of

the PW.1 is in the existence for the presence of the same. Also as has been already argued

that for the abetment to be punishable the crime in furtherance of same must happen and as

such is not the case it cannot be considered that the abetment has happened.

2. IN ARGUENDO: EVEN IF THERE WAS CONSPIRACY THERE WAS NO ILLEGAL ACT IN THE

PURSUANCE OF SAME

48 Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 A.I.R. S.C. 876.
49 Esher Singh v. State of A.P., A.I.R. 2004 S.C. 3030.
50 Ibid.
51 Superintendent of Police, CBI/SIT v. Nalini and Ors., JT (1999) 4 S.C. 106.

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By virtue of Sec 107 for the abetment to be made punishable there must be a criminal act in

pursuance of same which is not the case here. As argued the case in hand is that of an

accident and none of the accused seem to have committed the crime even if there was a

abetment it is non-actionable one.

Hence, it is humbly submitted that Mr. Baldeo Khanna and Mr. Rekha Khanna are not liable

for the offence of abetment u/s 107, V.P.C.. and must be acquitted for the same.

IV. WHETHER THE ACCUSED ARE LIABLE FOR OFFENCE OF CRIMINAL

CONSPIRACY UNDER SEC. 120 B OF V.P.C.

It is most humbly submitted before the Hon’ble court that the accused are not guilty for

committing the offence of criminal conspiracy. Under Sec.120A, V.P.C., Criminal conspiracy

is defined as when two or more persons agree to do or causes to do [A] an illegal act or an act

which is not illegal by illegal means and [B] there must be an agreement between the persons

who are alleged to have conspired then such an agreement is designated to be criminal

conspiracy.52

A. THERE WAS ABSENCE OF AN AGREEMENT FOR DOING AN ILLEGAL ACT

An act is said to be illegal which amounts to an offence, prohibited by law.53 The mere

agreement by two or more persons to do or causing any illegal act to be done constitutes an

overt act (actus reus). Actus Reus in a conspiracy is the agreement to execute the illegal

conduct54. In the present case any such agreement is absent on the part of the accused.

It is humbly submitted that for the conspiracy to be called so there are three basic ingredients

which must be present, reasonable ground must exist for belief that two or more people

52 Section 120A, V.P.C..

53 Sec.43, V.P.C..
54 Vimal Chand v. State of Rajasthan, 1999 Cr. LJ 128 (Raj.).

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entered into a conspiracy [1]; anything must be said done or written in regards to the common

intention [2].

B. THERE IS NO REASONABLE GROUND TO PROVE CONSPIRACY

It humbly submitted that in order to prove conspiracy there must exist a reasonable ground

for same55 here in this case there is no such ground for conspiracy the alleged conspiracy on

the grounds that the deceased was not bringing in the dowry could not be considered as the

accused never made the demand of dowry and only reason it comes up is because of the

speculation by the father of the deceased and has no other ground.

C. THERE WAS ABSENCE OF AN AGREEMENT BETWEEN THE ACCUSED TO

CONSPIRE

The Hon’ble Supreme Court observed that ‘the agreement of conspiracy is the gist of the

offence.56 In order to constitute a single general conspiracy, there must be a common design

and a common intention of all to work in furtherance of the common design.’ The very

essential ingredient of proving criminal conspiracy is to show agreement between two or

more persons who were alleged to conspire.57 In order to convict the accused guilty

circumstantial evidence must be proven upon.58 The conspiracy can be established by direct

evidence or by proof of circumstances, in which a legitimate inference of the existence of an

agreement between the parties can be drawn.59

55 Section 10, VindianEvidence Act, 1872.

56 Hussain Umer v. Dalipsinghi, A.I.R. 1970 S.C. 45.
57 Ibid.
58 State (NCT of Delhi) v. Navjot Sandhu, 2005 Cr LJ 3950 S.C.
59 Shivnarayan Laxminarayan Joshi and Ors. v. State of Maharashtra. A.I.R. 1980 S.C. 439; V.C. Shukla v.
State (Delhi Adminstration, A.I.R. 1980 S.C. 1382; State of kerala v. Sugathan (2000) 8 S.C.C. 203.

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In the case at hand there was no such common design or common intention as the only

ground on which the prosecution rests its case is on the speculation by the father of the

deceased and no other evidence whatsoever

It is also submitted that the deceased died in the accident and not by some planned

conspiracy. The fact that the deceased had a decompensated heart and the tables which have a

side effect of drowsiness all further the fact that the death was not in furtherance of common

intention but by accident only.

Therefore, it is humbly submitted before this Hon’ble Court that the charge under Sec. 120B

of the V.P.C. has not been made out due and they should be acquitted of the same.

V. WHETHER THE ACCUSED ARE GUILTY UNDER SEC. 34 OF THE V.P.C.,

1860

It is humbly submitted before the Hon’ble court that that no act have been committed in

furtherance of their common intention. Sec. 34 of the V.P.C. includes act done by several

persons in furtherance of a common intention.60 Before a man can be held liable under the

provisions of this Sec., it must be established that: [A] there was common intention in the

sense of a pre-arranged plan between the two and [B] the person sought to be so held liable

had participated in the act constituting the offence. Unless common intention and

participation are both present, this Sec. cannot apply.61

60 See Section 34, V.P.C..

61 State of Karnataka v. Eshwariah, 1987 CrLJ 1659.

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 A. THERE WAS NO PRE-ARRANGED PLAN

The common intention should be shown to be premeditated62 i.e. it must be shown that there

was prior meeting of minds which activated the common intention leading to the commission

of the criminal act.63 In the context of the present case, circumstances prove that there was no

prior meeting of minds of Accused no.1, Accused No. 2, and Accused No. 3. In fact, it is

merely an accident and there was no scope of pre-arrangement of any plan.

To constitute common intention it is necessary that the intention of each one of them was

known to the rest of them and was shared by them.64 In the instant case, neither Accused no.

1 shared with Accused no. 2 and 3 any common intention to kill the deceased. Hence, the

prosecution has failed to prove the common intention.

B. THE ACCUSED DID NOT ACT IN FURTHERANCE OF A COMMON INTENTION.

The principle which the Sec. embodies is the participation in action with the intention of

committing a crime.65 The essence of Sec. 34 is a simultaneous consensus of the minds of the

person participating in the criminal action to bring about a particular result.66

The defense humbly submits that the acts were not in furtherance of the common intention of

the accused persons. The prosecution has not proved any sort of communication whatsoever

between the accused persons to prove the existence of even prior knowledge with regard to

the death of the deceased.

62 Devilal v. State of Rajasthan, A.I.R. 1971 S.C. 1444.

63 Suresh v. State of Uttar Pradesh A.I.R. 2001 S.C. 1344.
64 Dajya Moshaya Bhil v. State of Maharashtra A.I.R. 1984 S.C. 1717; See also Papu alias Susanta Das v. State
(1999) Cr LJ 738 (SC).
65 Jagir Singh v. State of Punjab, A.I.R. 1968 S.C. 43; Gurdatta Mal v. State of Uttar Pradesh, A.I.R. 1965 S.C.
257.
66 Hethubha v. State of Gujrat, A.I.R. 1970 S.C. 1266.

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It is true that no concrete evidence is required to prove a common intention between two

people to commit an act. It is however key here to understand that such evidence must be

such that it does not leave any room for doubt against such an intention.67 It is humbly

submitted that due to the lack of evidence on the prosecution's part, it cannot be conclusively

proved that there was any illegal act committed by one or more persons in furtherance of the

common intention of all those. Therefore, S.34 shall not be applicable.

Absence of Accused no. 1, 2 and 3 at the place of occurrence absolves their liability. For

application of Sec. 34, the person must be physically present at the actual commission of the

crime. This must be coupled with actual participation. If the accused was not present, he

cannot be convicted with the aid of Sec. 34.68

Therefore, it is humbly submitted before this Hon’ble Court that the charge under Sec. 34 of

the V.P.C. has not been made out due and they should be acquitted of the same.

67 Dharam Pal v. State of Haryana, A.I.R. 1978 S.C. 1492.

68 Mostab Ali Malitha v. State of West Bengal, (2011) 4 Cal.L.T. 373; Shyamal Ghosh v. State of West Bengal
2012 (3) Crimes 97 (SC).

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 PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments

advanced, it is most humbly prayed and implored before the Hon’ble Court, that it may

be graciously pleased to adjudge and declare-

1. Nakul Khanna [Accused No.1] is not liable for the offences punishable under Sec.s

302, 498A, 304B, 120B read with Sec. 34 of the VindianPenal Code, 1860.

2. Baldev Khanna [Accused No.2] is not liable for the offences punishable under Sec.s

304B, 498A, 109, 120B read with Sec. 34 of the VindianPenal Code, 1860.

3. Rekha Khanna [Accused No.3] is not liable for the offences punishable under Sec.s

304B, 498A, 109, 120B read with Sec. 34 of the VindianPenal Code, 1860.

And pass any other order as it deems fit in the interest of equity, justice and good

conscience.

All of which is most humbly and respectfully submitted.

Date: 14.05.2017 Sd/-

Place: Rinchi (Counsel for the Defense)

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