SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT

COURT COMPETITION, 2013

BEFORE THE COURT OF SESSIONS

AT PANAJI, GOA

S.C. NO.467 OF 2013

STATE OF GOA

(PROSECUTION)

v.

MAJ. (RETD.)J.S.RANA

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 396 READ WITH SECTION 302 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

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TABLE OF CONTENTS

TABLE OF CONTENTS

Table of Contents ii

List of Abbreviations iii

Index of Authorities iv

Table of Cases iv

Books v

Lexicons vi

Websites vii

Statutes vii

Statement of Jurisdiction viii

Statement of Facts ix

Statement of Charges x

Summary of Arguments xi

Arguments Advanced 1

Issue-I 1

Whether Maj Rana is guilty of Dacoity? 1

Issue-II 6

Whether Maj Rana is guilty of Murder? 6

Prayer 16

MEMORANDUM ON BEHALF OF THE DEFENCE

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LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defence Witness
Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
Mad Madras High Court
n. Foot Note no.
Ori Orissa High Court
p. Page No.
P&H Punjab and Haryana High Court
Pat Patna High Court
PW Prosecution Witness
Raj Rajasthan High Court
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v. Versus

MEMORANDUM ON BEHALF OF THE DEFENCE

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

TABLE OF CASES:

1. A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128

2. Ajab Narain Singh v. Emperor AIR 1939 Pat 575

3. Anvar uddin v Shahkoor, 1996 Cri LJ 1270 (SC)

4. Awdhesh & Ors v. State of MP AIR 1988 SC 1158

5. Badal Sheik v. State 1986 (2) Crimes- 316

6. Bhobhoni Sahu v. King, AIR 1949 PC 257

7. Chakru Sattiah v. State of AP AIR 1960 AP 153

8. Chandra Mohan Tiwari v. State of MP AIR 1992 SC 891

9. Dalbeer Kaur v. State of Punjab AIR 1977 SC 472

10. Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102

11. Emperor v. Jamunia Singh AIR 1945 Pat 150

12. Haipal v. State, AIR 1998 SC 2787

13. Hari Charan Kurmi and Anr v. State Of Bihar, AIR 1964 SC 1184

14. Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184

15. Jaffar v. State,2013(2) JCC 1175

16. Janar Lal Das v. State of Orissa, 1991 (3) SCC 27

17. Kashmira Singh v. State Of Madhya Pradesh, AIR 1952 SC 159

18. Lakshman Prasad v. State of Bihar, 1981 CrLR 478

19. Lal Chand v. State of Haryana AIR 1984 SC 226

20. Mahmood v. State of UP AIR 1976 SC 69

21. Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144

22. Mohan Singh v. State of Punjab AIR 1965 Punj 291

MEMORANDUM ON BEHALF OF THE DEFENCE

 23. Mohd Remzani v. State of Delhi AIR 1980 SC 1341

24. Niranjan Das and Ors. v. Giridhari Das and Anr., 68(1989)CLT746

25. R v. Moganlal 14 ILR Bom 115

26. Rai Singh Mohima v. State AIR 1962 Guj 203

27. Ram Autar v. State AIR 1954 All 771

28. Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530

29. Ram Prasad Mahton v. Emperor AIR 1919 Pat 534

30. Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36

31. Shyam Behari v. State Of Uttar Pradesh, AIR 1956 SC 320

32. Southwark Borough London Council v. Williams (1971) 2 All ER 175

33. State of AP v Kowthalam Narasimhula, 2001 Cr LJ 722 (SC)

34. State of Bihar v Hanuman Koeri, 1971 Cri LJ 182 (Pat)

35. State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868

36. State of Punjab v. Bhajan Singh AIR 1975 SC 258

37. State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC)

38. Ugar Ahir v State of Bihar, AIR 1965 SC 277

BOOKS:

1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

2. Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal

Jurisprudence, (2nd Ed 1989)

3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5. Harris, Criminal Law, (22nd Ed. 2000)

6. Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

 7. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

8. I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

9. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

10. II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)

11. II, Princep’s Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)

12. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)

13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003)

14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

15. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)

17. Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010)

18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology,

(6th Ed. 2002)

19. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)

21. Sarkar, Law of Evidence, (13th Ed,1990)

22. Saxena & Gaur, Arms and Explosives, (10th Ed. 2012)

23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)

24. Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)

25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)

LEXICONS:

1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

WEBSITES:

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

4. http://www.scconline.com

STATUTES:

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)

3. The Indian Penal Code, 1860 (Act 45 of 1860)

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STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

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

Section 209 of the Code of Criminal Procedure, 1973.

Section 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 Section 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.‟

MEMORANDUM ON BEHALF OF THE DEFENCE

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STATEMENT OF FACTS

STATEMENT OF FACTS
1. On the night of 31st December, 2012, the Montecito Hotel & Casino owned by Ms Shonli

Gujral, on the ship ‘Aurora’ located on river Mandovi , hosted a high stakes poker game on

the Octavious floor. The chain of events that transpired that night are:

i. Post 11p.m. of that night, the Octavious vault had been breached by four men dressed

in fine suits, though while making their exit the alarm got triggered.

ii. Subsequently the four men ran towards the deck to make an exit, and threw eight

waterproof bags overboard into a motorboat. Two of the men escaped by rappelling

into a motorboat, while the other two awaited their turn to rappel down.

iii. Just as the remaining two were about to make their escape, Mr. Michael Barbosa

(Chief Security Officer) ordered them to stop.

iv. Thereafter Mr. Barbosa fired a warning shot in the air, however when they still did

not stop, he fired at one man’s knee and subdued him, they disobeyed the order and

one of them took a guest as hostage in order to escape; subsequently the accused,

Maj. (Retd.) J.S. Rana (Head of Operations, Security) had shot dead the other man.

v. The police reached the scene of crime at 12.15 a.m and Ms Shonali registered an

F.I.R against the accused.

2. Bhaskar Sanyal, on 4th February, 2013 confessed to the crimes under Sec. 164 of the Code

of Criminal Procedure, and further provided incriminating evidence against the accused. The

final report of the police was made on the complicity of the accused on the 14th March, 2013.

3. On 16th May, 2013, an interim order was passed by the Sessions Court stating that the

charges under Sec.396/302 have been read out to the accused and that the chargesheet has

been served. The accused pleaded not guilty and claimed trial. The matter is listed for final

hearing before the Session’s Court, Panaji on the 29th May 2013.

MEMORANDUM ON BEHALF OF THE DEFENCE

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
STATEMENT OF CHARGES

STATEMENT OF CHARGES

CHARGE 1
Maj. (Retd) J. S. Rana has been charged under Section 396 read with Section 302 the Indian

Penal Code, 1860 for the crime of Dacoity with Murder.

MEMORANDUM ON BEHALF OF THE DEFENCE

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SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

ISSUE I

WHETHER THE ACCUSED IS GUILTY OF DACOITY?

It is humbly submitted before this Hon’ble Court that the accused Maj. (Retd) J. S. Rana is

not guilty of the offence of dacoity as he was not a party to the dacoity that had taken place

on the 1st of January 2013, nor is there any direct evidence to link him to the crime. The

accused had not in any way participated in the crime as he was in charge of the security over

the Montecito, furthermore he had neither intention nor motive to commit such a crime and

thus, this crime cannot stand.

ISSUE II

WHETHER THE ACCUSED IS GUILTY OF MURDER?

It is humbly submitted before this Hon’ble Court that the accused is not guilty of murder as

the alleged crime which he had committed was done in exercise of his right to private defence

under section 103 of the IPC read with sections 80 and 81 of the IPC and thus he lacks the

requisite mens rea to commit such a crime. Furthermore the issue as to whether or not he had

committed the actus reus must be put into question as the direct evidence has several

infirmaries and inconsistencies. Hence the crime of murder cannot stand against the accused.

MEMORANDUM ON BEHALF OF THE DEFENCE

 SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 1
ARGUMENTS ADVANCED

ARGUMENTS ADVANCED
ISSUE-I

WHETHER MAJ RANA IS GUILTY OF DACOITY?

It is humbly contended before this Hon’ble Court that Maj. (Retd) J.S. Rana (hereinafter to be

referred to as the ‘accused’) is not guilty of the offences under Sec. 396/302 of the Indian

Penal Code, 1860 (hereinafter referred to as the ‘IPC’). In the matter at hand, it has been

wrongfully alleged that the accused has committed murder in course of committing dacoity.

The matter of a dacoity will be dealt with in the present issue (Issue I), while the charge of

murder will be disproved in the subsequent issue (Issue II).

Dacoity1 is robbery2 committed by five or more persons, with abettors who are present and

aiding when the crime is committed are counted in the number. To establish a charge under

this section, the prosecution must prove the following elements, beyond a reasonable doubt3:

 The accused committed or attempted to commit robbery

 Persons committing or attempting to commit robbery and present and aiding must

not be less than five; and

 All such persons should act conjointly.

It is humbly contended that the accused did not commit or attempt to commit robbery [1.1]

nor did he act conjointly with the others [1.2] and that there are major discrepancies in the

oral testimony [1.3], coupled with heavy reliance by the Prosecution on unreliable

circumstantial evidence [1.4]

1
Sec 391, IPC
2
Sec 390, IPC
3
Shyam Behari v. State Of Uttar Pradesh, AIR 1956 SC 320

MEMORANDUM ON BEHALF OF THE DEFENCE

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 2
ARGUMENTS ADVANCED

MEMORANDUM ON BEHALF OF THE DEFENCE

1.1 THE ACCUSED DID NOT COMMIT OR ATTEMPT TO COMMIT ROBBERY

It is contended that the accused did not have independent control over the security of the

Octavious floor. The statement made by accused clearly makes out that Mr. Michael Barbosa

(hereinafter to be referred as DW-4) and Ms. Shonali Gujral (hereinafter to be referred as

PW-1) could monitor the Octavious vault at all times even though they may not have been

tasked with the security of the Octavious floor.4

The same can be inferred from the witness statements made by PW-1, “We had taken the best

possible precautionary measures to avoid any incident and I had special men on guard.”5

Thus, it is evident that there was more than one person privy to the security layout of the

vault.

Furthermore, it has been alleged that the accused participated by securing entrance of the

other perpetrators. It is to be noted that the accused did not have the authority to prepare the

guest list, the only authority given to him is merely to scrutinize the names given to him by

PW-1. Hence, the accused is not the authorized person, nor does he have the power to put in

names, he is merely to secure that the persons mentioned by PW-1 are of a proper

background.

It is submitted before this Hon’ble court that in such circumstances one cannot pin point the

crime of dacoity on the accused, there is still a room full of doubt with respect to who aided

the co-accused and other persons in the crime of dacoity.

4
Case Details, Annexure 7, P. 15
5
Ibid, P.. 14
1.2 ALL SUCH PERSONS SHOULD ACT CONJOINTLY

The word conjointly refers to united or concerted action of five or more persons participating

in the act of committing an offence6. From the aforementioned arguments, it is evident that

the accused did not assist the other accused persons in any form nor help them to commit the

offence. Therefore, it is humbly submitted that the threshold of acting conjointly does not

fulfilled.

1.3 THERE IS A DISCREPANCY IN THE TIME OF OFFENCE

It has alleged that the accused participated in the crime of dacoity. However, the prosecution

heavily relies on PW-2’s statement, without proper corroboration by way of evidence, to

incriminate the accused. It is already a well settled principle of law that an accused cannot be

convicted, if there are inherent improbabilities in the prosecution evidence regarding

participation in crime,7 given that an accomplice’s statement is of a weak evidentiary

value8.Therefore, it is the duty of the Court to scrutinise the evidence carefully and separate

the grain from the chaff.9 The statement made by PW-2 suffers from several discrepancies

with certain statements of witnesses, with respect to the timeline of the offence:

i. Witness statement of the DW-4 being Chief Security Officer of Monteceito states that

security took notice of the accused near the vault at 10:55 p.m.; just a few minutes

later they came out running with bags making an escape.10

6
Niranjan Das and Ors.v. Giridhari Das and Anr., 68(1989)CLT746
7
Lakshman Prasad v. State of Bihar, 1981 CrLR 478
8
BhobhoniSahu v. King,AIR 1949 PC 257; Kashmira Singh v.State Of Madhya Pradesh, AIR 1952 SC 159
9
Ugar Ahir v State of Bihar, AIR 1965 SC 277
10
Case Details ,Annexure 7, P. 15
 ii. Witness statement of Ms. Zareen Malik (hereinafter to be referred as DW-2) stated

that as the accused were running on the deck, making their escape when it was

nearing 12’o clock.11

iii. Witness statement of Mr. Shekhar Subramniyam (hereinafter to be referred as DW-3)

states that he was taken hostage by one of the accused and heard the accused firing a

shot at around 11’o clock.12

iv. Confession of PW-2 states that the accused persons started commission of dacoity

post 11:30 p.m.when the guards changed their post13.

From the above, a discrepancy of half an hour can be clearly made out between the

confession and three of the witness statements. This half hour leaves enough time for some-

one else to have perpetrated the crime. It is thus clear that prosecution cannot make out a

proper chain of event of the offence.

Where the prosecution heavily rely on the confession of a co-accused person, the

presumption of innocence which is the basis of criminal jurisprudence is given to the accused

person and if such confession cannot be properly corroborated proving beyond reasonable

doubt then the accused person is entitled to the benefit of doubt.14 Thus, it is submitted

before this Hon’ble Court that the statement given by PW-2 not be taken into consideration

since if the sole eye-witness contradicts himself, it would lead to an acquittal.15

11
Ibid, P. 15
12
Ibid. P. 16
13
Case Details, Annexure 8, P. 17
14
Jaffar v. State,2013(2) JCC 1175; Hari Charan Kurmi and Anr v.State Of Bihar, AIR 1964 SC 1184
15
Haipal V State, AIR 1998 SC 2787
1.4 CIRCUMSTANTIAL EVIDENCE IS UNRELIABLE

It is a well settled principle that where the case is mainly based on circumstantial evidence,

the court must satisfy itself that various circumstanced in the chain of evidence should be

established clearly and that the completed chain must be such as to rule out a reasonable

likelihood of the innocence of the accused16.

When even a link breaks away, the chain of circumstances gets snapped and other

circumstances cannot in any manner establish the guilt of the accused beyond all reasonable

doubts.17 When attempting to convict on circumstantial evidence alone the Court must be

firmly satisfied of the following three things:18

i. The circumstances from which the inference of guilt is to be drawn, must have fully

been established by unimpeachable evidence beyond a shadow of doubt

ii. The circumstances are of determinative tendency, unerringly pointing towards the

guilt of the accused

iii. The circumstances taken collectively, are incapable of explanation on any reasonable

hypothesis except that of the guilt sought to be proved against him

The prosecution fails to pinpoint how the accused is solely responsible for securing entrance

to the accused or instigating the commission of the crime, notwithstanding that the entire case

rests solely upon uncorroborated circumstantial evidence. Therefore, it is humbly submitted

before this Hon’ble Court that the charge of dacoity against the accused cannot be made in

the present matter.

16
Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
17
Janar Lal Das v. State of Orissa, 1991 (3) SCC 27; A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128.
18
Mahmood v. State of UP AIR 1976 SC 69
 ISSUE-II

WHETHER MAJ RANA IS GUILTY OF MURDER?

It is humbly contended before this Hon’ble Cour that the accused is not guilty for committing

the offence of murder under Sec 302 read with Sec 300, IPC, considering that the accused

was acting in private-defence [2.1], accident [2.2] and necessity [2.3]. Furthermore, the

Prosecution’s case must be dismissed because of heavy reliance on uncorroborated

confession [2.4], improper ballistic evidence [2.5] and faulty investigation [2.6], all creating

the existence of a reasonable doubt [2.7].

2.1. The Accused was acting in Private Defence

The Defence humbly submits that the circumstance under Sec 103, IPC is fulfilled [A],

private defence was warranted [B] and reasonable force was used [C] in the instant matter.

A. Circumstance under Sec 103 is made out

Section 103 of the IPC enumerates that the right to private defence of property can extend to

causing death to causing in circumstances which have been listed in the provisions of section

10319 and robbery is clearly mentioned in said provision of the act 20 and dacoity is robbery

committed by 5 or more people at once 21 would enable this defence. In the case at hand the

crime that took place cannot be misconstrued as theft as there was harm caused to Mr. Shekar

Subramaniam (DW 3) and in such circumstances wherein the thief is carrying away the

19
Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530
20
Sec 103, IPC
21
Ratanlal & Dhirajlal, Indian Penal Code, p. 835 ( 33rd Ed. 2012)
property and he voluntarily causes hurt it would turn said theft into robbery22 , private

defence would be justified.

B. Private Defence was warranted

A person such as a security guard who is employed to guard the property of his employer is

protected under section 103 if he causes death while safeguarding his employer’s property 23.

Robbery by violence may be resisted by violence sufficient to overcome the robber and said

force would be a justified use of self defence 24. The right of self defence of property

commences the moment when there is a reasonable apprehension of danger to the property or

person, it is not necessary that the harm should take place as a mere apprehension shall justify

the use of section 10325. In the matter at hand, the above provisions of law can be used by

virtue of-

 The accused was Head of Operations (Security) of the Montecito. He was bound to

protect all the people and property aboard the Ship 26 and on the night of the crime he

had done so by shooting Brij Gopal (hereinafter referred to as the ‘victim’ or the

‘deceased’) as he was about to escape or cause more harm on board the Montecito27.

 PW 2 had held DW 3 hostage and caused harm to the hostage while one of the

accused made good with the money28 from the Ship.

22
Ajab Narain Singh v. Emperor AIR 1939 Pat 575
23
Emperor v. Jamunia Singh AIR 1945 Pat 150
24
Ram Prasad Mahton v. Emperor AIR 1919 Pat 534
25
Ram Autar v. State AIR 1954 All 771
26
Case Details, Annexure 7, p. 15
27
Ibid
28
Case Details, p. 1
  It cannot be discredited that the accused could have had a reasonable apprehension of

the fact that further harm could be inflicted to another person, had exercised his right

of self defence in the heat of the moment resulting in Brij Gopal’s death.

C. Reasonable use of force

An act of self defence cannot be weighed on golden scales29 as a person who’s property is in

immediate peril of harm cannot be expected to use precise force to repel the assailant, and

going slightly further than what is necessary when exercising self defence would be allowed

by the law30. The right of self defence is not dependent on the actual criminality of the

person resisted; rather it depends solely on the wrongful or apparently wrongful character of

the act attempted by the accused31, and this right extends till such time that the offender has

retreated, the property is retrieved, or until the assistance of the public authorities is

obtained32.

In the facts at hand , the accused could not be expected to measure his use of force on golden

scales as the situation was one which required urgency in thought and action, as there was a

person being held hostage, and a dacoit who was going to either make good with the money

that he had stolen, or help his fellow dacoit, therefore the accused’s use of force in the heat of

the moment while not necessarily completely proportionate to the force required, was still

reasonable considering the circumstances at hand, and not excessive in any manner.

29
I, Nelson R. A. Indian Penal Code, p. 837 (10th Ed. 2008)
30
Mohd Remzani v. State of Delhi AIR 1980 SC 1341
31
Rai Singh Mohima v. State AIR 1962 Guj 203
32
Supra, n. 29, p. 841
2.2. THE ACCUSED’S ACTIONS WERE AN ACCIDENT

Under Sec 80, IPC, a criminal act which is an accident is not punishable as it is excuses the

accused from punishment due to a lack of mens rea, and it for the prosecution to prove

requisite intention or knowledge in cases of murder 33. The word ‘accident’ is something that

happens unexpectedly or happens unintentionally 34. The purely accidental result of a man’s

voluntary conduct will not be imputed to him if35-

i. He had no criminal intention or knowledge

ii. His conduct was lawful

iii. His consequences were purely lawful

The amount of caution that is to be followed under this section is not that which is of the

highest order, but that which is a reasonable precaution when seeing the facts of each case 36.

In the case at hand it could be seen that-

 While exercising his private defence it can be argued that Accused had accidently

ended Brij Gopal’s death unintentionally37.

 It can be inferred from the statements of Accused that his alleged criminal actions

were an accidental one and he had no mens rea to commit such a crime38, and without

intent a conviction cannot be made against the accused.

33
Chakru Sattiah v. State of AP AIR 1960 AP 153
34
Supra, n. 32, p. 528
35
Mohan Singh v. State of Punjab AIR 1965 Punj 291
36
Supra, n. 34, p. 533
37
Case Details, Annexure 7, p. 15
38
Ibid
2.3. THE ACCUSED’S ACTIONS WERE A NECESSITY

To attract the defence under section 81 of the IPC it has to be proven that the actions of the

accused were done in good faith to prevent any other harm to the person or property of

others39 and due to an absence of mens rea the action or crime committed is excused40. The 3

prerequisites to this section are-

i. The Presence of the particular motive specified

ii. The existence of good faith

iii. The absence of intention to commit the crime; i.e. Criminal Intention41

If the situation warrants harm, the harm must not be intentional or with criminal intent42.

Thus looking at the facts-

 The actions of Accused were necessary for the safety of the people and the property

of the people aboard the Montecito.

 As seen in the facts of the case the shot fired by Accused was done in good faith with

a motive to prevent the robbery from taking place, furthermore barring Bhaskar

Sanyal’s statement43 there is no other allegation of criminal intent of Accused to

commit such a crime in cold blood44.

 The accused’s alleged criminal acts are those which are done out of necessity to

prevent a greater evil and he had under this section chosen the evil in which less harm

39
Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102
40
R v. Moganlal 14 ILR Bom 115
41
State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868
42
Ibid
43
Case Details, Annexure 8, p. 17
44
Case Details, Annexure 7, p. 14, 15, 16
 would have been caused or inflicted to others, hence excusing his acts under this

section45.

 Therefore as Head of Operations (Security) Accused had shot Brij Gopal in order to

prevent any further damage or harm to the other people and the property of the

Montecito thus making his act an excusable one under section 81 of the IPC.

2.4 CONFESSION IS UNRELIABLE

The confession made by PW 2 is unreliable as it is of low evidentiary value [A],lacks

corroboration [B] and he is an interested witness [C].

A. Confession by co- accused is weak evidence

PW 2’s confession cannot be seen as reliable as the confession by a co- accused is considered

as a very weak form of evidence which is on a very low footing 46, the reason for this scrutiny

and caution is being:

i. He has motive to shift guilt from himself

ii. He is immoral person likely to commit perjury on occasion

iii. He hopes for pardon or has secured it, and so favours the prosecution47

The Apex Court has held that confessions of a co- accused cannot be used against the accused

unless the Court is morally satisfied on other evidence that the accused is guilty 48. In the

immediate matter before this court we can see that all of the aforementioned 3 principles

45
Southwark Borough London Council v. Williams (1971) 2 All ER 175
46
State of Punjab v. Bhajan Singh AIR 1975 SC 258
47
Lal Chand v. State of Haryana AIR 1984 SC 226
48
Badal Sheik v. State 1986 (2) Crimes- 316
could easily be true as PW 2 is of admitted ill repute and it would be ideal for him to shift the

blame from himself to the accused thus making Accused seem like the mastermind of this

entire plan.

B. Confession lacks Corroboration

A conviction made on the basis of a confession by a co- accused in absence of corroboration

from other independent evidence would be considered very unsafe to do 49. Corroboration on

material particulars means that there should be some additional or independent evidence

that50-

i. Renders the story told by the accomplice true and reasonably safe to act upon.

ii. Identifying the accused as one of those or among those who committed the offence

iii. Showing direct or circumstantial evidence linking the accused with the crime

iv. Ordinarily the testimony should not be sufficient to corroborate that of the other

Bhaskar’s statement is without corroboration as everything that had been stated by him has

been unsupported by the facts, and could easily be fictional as the only person available for

the corroboration is deceased. Neither DW 2, 3, nor 4 had heard accused speak briefly to the

deceased, nor had they seen him shoot the deceased at point blank range.

C. PW 2 is an interested witness

It is further contended that PW 2 falls within the category of an „interested witness‟ as

the accused had allegedly shot his mentor and friend Brij Gopal. An interested witness is one

who postulates that the person concerned must have some direct interest in seeing that the

accused is somehow convicted, due to the fact that he has an animus or ill will with the

49
Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184
50
Ratanlal, Dhirajlal, Law of Evidence, p. 801(24th Ed. 2011)
accused or for any other reason51, seeing PW 2 falls within this category, the court must tread

lightly when taking into account his statements52.

2.5 BALLISTIC REPORT IS INCONCLUSIVE

As per the Forensic Report,53 three guns were recovered from Aurora’s deck, with no finger-

prints found on any of the weapons. Furthermore, from the 4 empty bullets found on the

crime scene, the ballistic expert failed to categorize as to which shot was the fired, fatal one,

with evidence being available to only to match 3 bullets to the Glock .38 handgun 54 , owned

by Miachael Barbossa and one to the Smith and Wesson custom engraved model 60, .38

revolver55 used by the accused.

With no marks or even blood found on any of the bullets, there is a high ambiguity as to

exactly what bullet was fired, which gun was used and by whom. . So without any convincing

evidence that the gun was used by the accused, mere recovery of the gun will not in any way,

help the prosecution.56

Where the expert evidence is obscure and oscillaring, it is not proper to discredit the direct

testimony of the eye-witnesses on such uncertain evidence.57 In cases where the medical

51
Dalbeer Kaur v. State of Punjab AIR 1977 SC 472
52
Chandra Mohan Tiwari v. State of MP AIR 1992 SC 891
53
Case Details , Annexure 6, p. 12
54
Case Details, Exhibit 2, p.2
55
Ibid, Exhibit 1
56
State of Bihar v Hanuman Koeri, 1971 Cri LJ 182 (Pat)
57
Anvar uddin v Shahkoor, 1996 Cri LJ 1270 (SC)
evidence and the oral evidence do not match to create the same story it would be unsafe for

the courts to maintain a conviction on the same58and thus, the accused ought to be acquitted.

2.6 FAULTY INVESTIGATION

The fact that the deceased’s body was found in the prone position59 and not in the supine

position, coupled with the fact that the deceased’s upper body turned towards the accused (as

opposed to away from the accused, had he been shot in the frontalis) shows that the position

of the body was either improperly recorded by Inspector Aamir Bashir (PW4) or was shifted,

showing serious contamination of the crime scene. There is thus a grave possibility that vital

evidence such as fingerprints, DNA, hair, residue on the victim’s clothes or other material

piece of information may have been lost by virtue of callous and/or faulty investigation

techniques.

Moreover, no blood or footprints were recovered from the crime scene. Given that the

accused was also persent at the scene of crime, a gunshot-residue test could have been

conducted and his finger prints could also have been taken. Thus, no proper handling of

investigation ,would lead to an acquittal60

The Apex Court has held that in cases where there are a number of infirmaries in the

evidence of the eyewitnesses the benefit of the doubt is given to the accused61, bearing in

mind that DW 2, 3, 4 had not seen the accused commit the actus reus. It would be thus be

highly unsafe to convict the accused for the crime.

58
Awdhesh & Ors v. State of MP AIR 1988 SC 1158
59
Case Details, Annexure 1, p. 3
60
State of AP v Kowthalam Narasimhula, 2001 Cr LJ 722 (SC)
61
State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC)
2.7 REASONABLE DOUBT

In light of all the aforementioned arguments, the accused humbly submits that there exists

reasonable doubt and hence he should be acquitted of the alleged crime. A reasonable doubt

must not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason

and common sense arising out of the evidence of the case62.

The prosecution’s arguments are leaning towards the fact that the crime ‘may have been

committed by the accused’, however they have failed to make the link between ‘may have

committed the crime’ and ‘must have committed the crime’ and that gap must be filled by the

prosecution by legal, reliable and unimpeachable evidence before a conviction can be

sustained63.

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

of the IPC has not been made out due and he should be acquitted of the same.

62
Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36
63
IV. Nelson R. A. , Indian Penal Code, p. 2905 , (10th Ed. 2008)
 SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 16
PRAYER

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon‘ble Court be pleased to:

1. Acquit Maj (Retd) J.S.Rana of the offence of committing dacoity with murder under

Sections 396/302 of the Indian Penal Code, 1860.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: Goa S/d

Date: May 29, 2013 COUNSEL FOR THE DEFENCE

MEMORANDUM ON BEHALF OF THE DEFENCE