MOOT COURT, PAPER CODE: LM 328

SOA NATIONAL INSTITUTE OF LAW (SNIL)

SOA National Institute of Law (SNIL)

MOOT COURT, PAPER CODE- LM 328
BEFORE THE HON’BLE HIGH COURT OF ODISHA
CRIMINAL APPEAL NO. ______/2021
(UNDER SECTION 374(2) r/w Section 386(b) (i) OF THE CODE OF CRIMINAL
PROCEDURE)

IN THE MATTER OF

RAMESH … APPELLANT
-VERSUS-
STATE OF ODISHA … RESPONDENT

FOR OFFENCES CHARGED UNDER: SECTIONS 302/342/201OF THE

INDIAN PENAL CODE, 1860

HUMBLE SUBMISSIONS BEFORE THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUDGES OF THE HON’BLE HIGH COURT OF ODISHA

THE HUMBLE SUBMISISON OF THE APPELLANT ABOVE NAMED

MEMORANDUM ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………..……........

iv
INDEX OF AUTHORITIES ………………………………………………………...…………..
v
I. LIST OF CASES …………………………………………………………………..……………
v
II. LIST OF STATUTES …………………………………………………………..…………….
vii
III. LIST OF BOOKS CITED ……………………………………………………...…………….
vii
IV. LIST OF ONLINE DATABASES …………………………………………...………………
vii
STATEMENT OF JURISDICTION ……………………………………………..…………..
viii
STATEMENT OF FACTS ………………………………………………………...……………
ix
ISSUES RAISED …………...…………………………………………………..……………….. x
SUMMARY OF ARGUMENTS ……………………………………………..………………...
xi
ARGUMENTS ADVANCED …………………………………...……………..…………..… 1-8
I. WHETHER THE INSTANT APPEAL IS MAINTAINABLE UNDER SEC. 374(2) r/w
SEC. 386(b) (i) OF THE CODE OF CRIMINAL PROCEDURE IN THE HON’BLE HIGH
COURT? …………………………………………………………………………...……………..
1
[I.A] THE PRESENT APPELLANT HAS INHERENT RIGHT TO APPEAL TO THIS
HON’BLE COURT
…………………………………………………………………………………………... 1
[I.B] THE APPELLANT HAS SUFFERED GRAVE AND SERIOUS MISCARRIAGE OF
JUSTICE ………………………………………………………………………………..………... 2
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[I.C] THIS HON’BLE COURT HAS THE POWER AND DUTY TO RE-APPRECIATE
EVIDENCE ……………………………………………………………………………...………..
3
ISSUE II: WHETHER THE ORDER OF CONVICTION PASSED BY THE LEARNED
ADDITIONAL SESSIONS JUDGE IS VALID? …………………………………………..…..
4
[II.A] MOTIVE IS ABSENT IN THE PRESENT CASE ……………………………………...…
4
[II.B] ABSENCE OF MENS REA AND ACTUS REUS …………………………………..……...
4
[II.C] NO INDEPENDENT EYE WITNESSES WERE EXAMINED …………………...……...
5
[II.D] ………………………………………………………...….. 6
[II.E] GUILT OF THE APPELLANT BASED ON CIRCUMSTANTIAL EVIDENCE IS NOT
ESTABLISHED BEYOND REASONABLE DOUBT …………………………………………...
7
PRAYER ………………………………………………………………………………………… 9

LIST OF ABBREVIATIONS
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II. LIST OF STATUTES

SL. NO. STATUTES PAGE NO.
1. The Code of Criminal Procedure, 1973. Passim
2. Indian Penal Code (45 of 1860). Passim
3. Indian Evidence Act, 1872. Passim

III. LIST OF BOOKS

SL. NO. BOOKS PAGE NO.
1. K.D. Gaur, Indian Penal Code, (6th ed. 2016). Passim
2. N.D. Basu’s, Commentary on Indian Penal Code, (Ashoka Law Passim
House, 11th Edition).
3. Justice C.K. Thakker, Law of Evidence (Whytes & Co., 3rd Passim
Edition).
4. Ratanlal & Dhirajlala, The Code of Criminal Procedure (23rd Passim
Edition).
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IV. LIST OF ONLINE DATABASES

SL. NO. ONLINE DATABASES
1. Westlaw (www.westlawindia.com)
2. Manupatra (www.manupatra.com)
3. SCC Online (www.scconline.in)
4. The Judgement Information System (http://www.judis.nic.in) (Supreme Court
of India Official)

STATEMENT OF JURISDICTION

The Hon’ble High Court has Jurisdiction to hear instant appeal under Section 374(2) 1 r/w
Section 382(b) (i)2 of the Code of Criminal Procedure, 1973 against the order of conviction
and sentence of life imprisonment of the learned trial court under Section 302/326 of the
Indian Penal Code, 1860 in ST No. 120/2010 dt. 24.09.2016.

1
Section 374 (2) of the Code of Criminal Procedure Code, 1973-“Any person convicted on a trial held by a
Sessions Judge or Additional Sessions Judge or on a trial held by any other Court in which a sentence of
imprisonment for more than seven years has been passed against him or against any other person convicted at
the same trial may appeal to the High Court.”
2
Section 386 (b) of the Code of Criminal Procedure, 1973- “in an appeal from a conviction – (i) Reverse the
finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed for trial.”
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THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

AND ARGUMENTS IN THE INSTANT CASE.

STATEMENT OF FACTS
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ISSUES RAISED

ISSUE I: WHETHER THE INSTANT APPEAL IS MAINTAINABLE UNDER SEC.

374(2) r/w SEC. 386(b) (i) OF THE CODE OF CRIMINAL PROCEDURE IN THE
HON’BLE HIGH COURT?
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ISSUE II: WHETHER THE ORDER OF CONVICTION PASSED BY THE

LEARNED ADDITIONAL SESSIONS JUDGE IS VALID?

SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE INSTANT APPEAL IS MAINTAINABLE UNDER SEC.

374(2) r/w SEC. 386(b) (i) OF THE CODE OF CRIMINAL PROCEDURE IN THE
HON’BLE HIGH COURT?

It is humbly submitted that the instant appeal is maintainable under Sec. 374(2) r/w Sec.
386(b)(i) of the CrPC on the grounds that [I.A] the present appellant has inherent right to
appeal to this Hon’ble Court, [I.B] the appellant has suffered grave and serious miscarriage of
justice, [I.C] and this Hon’ble Court has the power and duty to re-appreciate evidence.
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ISSUE II: WHETHER THE ORDER OF CONVICTION PASSED BY THE

LEARNED ADDITIONAL SESSIONS JUDGE IS VALID?

It is humbly submitted that the order of conviction for the offences under Sec. 302/326 IPC.,
1860, pronounced by the learned Additional Sessions Court in ST No. 120/2010 is invalid on
the grounds that [II.A] motive is absent in the present case, [II.B] absence of mens rea and
actus reus, [II.C] no independent eye witnesses were examined, [II.D] ADD and [II.E] guilt
of the appellant based on circumstantial evidence is not established beyond reasonable doubt.

ARGUMENTS ADVANCED

ISSUE I: WHETHER THE INSTANT APPEAL IS MAINTAINABLE UNDER SEC.

374(2) r/w SEC. 386(b) (i) OF THE CODE OF CRIMINAL PROCEDURE IN THE
HON’BLE HIGH COURT?

It is humbly submitted that the instant appeal is maintainable under Sec. 374(2) r/w Sec.
386(b)(i) of the CrPC on the grounds that [I.A] the present appellant has inherent right to
appeal to this Hon’ble Court, [I.B] the appellant has suffered grave and serious miscarriage of
justice, [I.C] and this Hon’ble Court has the power and duty to re-appreciate evidence.

[I.A] THE PRESENT APPELLANT HAS INHERENT RIGHT TO APPEAL TO THIS

HON’BLE COURT.
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1. The right to appeal is an inherent and one of the fundamental rights of the accused
persons3. The statute pertaining to the right of appeal should be given a liberal contraction in
favour of the right, since they are remedial. Accordingly, the right would not be restricted 4 as
right to appeal is not only a statutory right but also a fundamental right mandated as per the
Constitution of India keeping in view the expansive definition of Art. 21. Right to Appeal,
thus, can neither be interfered with nor impaired, or it can be subjected to any condition5.
2. The golden thread which runs through the web of administration of justice in criminal
cases is that if two views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is favourable to the
accused should be adopted6. In the present case, there is a clear, glaring benefit of doubt
available to the accused, giving rise to a presumption of his innocence and hence, the right to
appeal.
3. The right to appeal is both on a matter of fact and a matter of law 7. It is, thereby,
humbly submitted that, in the instant case, the appellant has a fundamental as well as
statutory right to appeal against his conviction, arising mainly out of Art. 21 and the
principles of natural justice. Denying the said right would imply violating the most basic and
fundamental right of the appellant.
[I.B] THE APPELLANT HAS SUFFERED GRAVE AND SERIOUS MISCARRIAGE
OF JUSTICE.
4. The expression “perverse” means that the findings of the sub-ordinate authority are
not supported by the evidence brought on record or they are against the law or suffer from the
vice of procedural irregularity8 or is wholly unreasonable and erroneous 9. The “perverse
finding”10 means a finding which is not only against the weight of evidence but is altogether
against the evidence itself11 and if the finding of “guilt” is based on no evidence, it would be a
perverse finding and would be amenable to judicial scrutiny12.
5. The High Court has the power to reverse an order of conviction of the lower Court
where the latter has “obstinately blundered”13 and reached such distorted conclusion as to
3
Dilip S. Dhanukar v. Kotak Mahindra Co. Ltd. & Anr, Criminal Appeal No. 521 of 2007.
4
V.C. Shukla v. State through CBI, AIR 1980 SC 962.
5
Dilip S. Faizur Rahman v. State of Assam, 2009 (1) GLR 819 (Gauh).
6
Syed Peda Aowalia v. Public Prosecutor by High Court of A.P., Hyderabad, (2008) 3 Cr. LJ 3488 (SC)
7
Siddanna Apparao Patil v. State of Maharashtra, (1970) 1 SCC 547.
8
Gaya Din (Dead) through LRs & Ors. v. Hanuman Prasad (Dead) through LRs & Ors., (2001) 1 SCC 501.
9
Late v. State of M.P., AIR 1994 SC 763.
10
Aher Pitha Vajshi v. State of Gujarat, 1983 CrLJ 1049 (SC).
11
Parry’s (Calcutta) Employees’ Union v. Parry & Co. Ltd. & Ors., AIR 1966 Cal. 31.
12
Kuldeep Singh v. The Commissioner of Police & Ors., (1999) 2 SCC 10.
13
Rohtash v. State of Haryana, 2012 Cri LJ 3189 (3193).
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produce a positive miscarriage of justice, or has in some other way so conducted itself as to
produce a glaring miscarriage of justice.14
6. The paramount consideration of the Court should be to avoid miscarriage of justice. It
is humbly submitted that the learned Trial Court has failed to properly appreciate the
evidence on record, so also completely forgetting about the benefit of doubt which is clearly
available to the appellant. Therefore, in the present case, the High Court can interfere in
appeal15 and set right the wrong16.
[I.C] THIS HON’BLE COURT HAS THE POWER AND DUTY TO RE-
APPRECIATE EVIDENCE.
7. An appellate Court cannot dispose of a criminal appeal without considering
evidence17. In appeal against conviction, the High Court is duty bound 18 to examine and scan
all the matter, extrinsically as well as intrinsically19, and circumstantial evidence supporting
the conviction, the reliability of those witnesses on which conviction is based 20 and arrive at
an independent finding regarding guilt or innocence of the convict 21 which may be contrary to
the one reached by the trial Court22.
8. It was held in State of Karnataka v. Papanaika23 that the High Court in case of appeal
against conviction has full power to re-appreciate evidence and come to a conclusion
independently. In a case where the trial Court has taken a view based upon conjectures and
hypothesis and not on legal evidence, a duty is cast upon the High Court to re-appreciate so
as to ascertain whether the accused has committed any offence or not24.
9. The appellate Court, while sitting in appeal against the judgement of the trial Judge, to
be satisfied that the guilt of the accused has been established beyond all reasonable doubt
after proper re-assessment, re-appreciatory and re-scrutiny of the material on record.
Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in
a criminal appeal25.It is humbly submitted that in the present case, it is of paramount

14
Chandrappa v. State of Karnataka, Criminal Appeal No. 853 of 2006.
15
State of UP v. Dila, 1995 CrLJ 1143 (All-DB).
16
State of Madhya Pradesh v. Dharkole, 2005 SCC (Cri) 225.
17
In re Ningappa Balappa Hudli, AIR 1960 Mys 294 at 296.
18
Badri v. State of Rajasthan, (2000) 10 SCC 246.
19
Lal Mandi v. State of W.B., AIR 1995 SC 2265.
20
Badri S/o. Rugha Ram v. State of Rajasthan, 2000 SCC (Cri) 1235.
21
Nagina Sharma v. State of Bihar, 1991 CrLJ 1195, 1228 (Pat-DB).
22
Brathi v. State of Punjab, AIR 1991 SC 318; Narendra Singh v. State Punjab, (2000) 4 SCC 2212.
23
2004 Cr. LJ 980 (SC).
24
Alarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57.
25
Kamlesh Prabhudas Tanna v. State of Gujarat, 2014 CrLJ 443 (446) (SC).
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importance and is expected of this Hon’ble High Court to go deep into evidence and more
particularly, record as also proved documents26, if any.
10. Upon the humble submissions above, it is contended that the instant appeal is
maintainable under Sec. 374(2) r/w sec. 386(b)(i) of the Code of Criminal Procedure in the
Hon’ble High Court.

ISSUE II: WHETHER THE ORDER OF CONVICTION PASSED BY THE

LEARNED SESSIONS JUDGE IS VALID?

It is humbly submitted that the order of conviction for the offences under Sec. 342/302/201
IPC, 1860, pronounced by the learned Sessions Court is invalid on the grounds that [II.A]
motive is absent in the present case, [II.B] absence of mens rea and actus reus, [II.C] no
independent eye witnesses were examined and the medical examination of the body of the
deceased provided no conclusiveness as to the cause of death, [II.D] investigation by the
police is illegal, irregular and insufficient and the prosecution case is flawed and [II.E] guilt
of the appellant based on circumstantial evidence on the contours of committing murder is
not established beyond reasonable doubt.
[II.A] MOTIVE IS ABSENT IN THE PRESENT CASE.
11. The longing for the object desired which sets the volition in motion is motive27. A
motive is something which prompts a person to form an opinion or intention to do certain
illegal acts or even a legal act by illegal means with a view to achieve the intention. Motive is
26
Arun Kumar Sharma v. State of Bihar, (2010) Cr. LJ 428 (SC).
27
State of West Bengal v. Mohammed Khalid, AIR 1995 SC 785.
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the reason for an action i.e. what impels a person to act, such as ambition, envy, fear,
jealousy, etc. It is a psychological phenomenon which impels a person to do a particular act28.
12. An accused cannot be convicted because of the motive. At best, it raises a strong
suspicion that he committed the crime but suspicion cannot take place of positive proof29. It is
fairly well settled that while motive does not have a major role to play in cases based on eye-
witness account of the incident, it assumes importance in cases that rest entirely on
circumstantial evidence.30
13. It is humbly submitted that merely because the appellant threatened the deceased to
face dire consequences does not solidify the motive of the appellant to murder the deceased.
The threat can be attributed to be the result of the heated altercation followed by a physical
fight. No person would resort to murder merely because he threatened to do so in a fit of
anger, thereby ruling out the possibility of an ill motive on the part of the appellant. Also, in
the present case, there is absence of direct evidence which makes the establishment of motive
the most important aspect in proving the guilt of the appellant-accused. 3e

[II.B] ABSENCE OF MENS REA AND ACTUS REUS.

14. The essential requisite elements of crime need to be cogently established, as under31:
 Presence of mens rea or guilty mind or criminal intention;
 Presence of actus reus or overt act;
 Casual connection between the mens rea and consequential actus reus.
15. The term mens rea has been given to the volition, which is the motive force behind
the criminal act. An act becomes criminal only when it is done with guilty mind. An act alone
cannot create criminal liability, because no act is per se criminal 32, unless it is accompanied
by a guilty state of mind (actus non facit reum, nisi mens sit rea).
16. It is humbly submitted that the appellant was neither seen directly nor did
circumstantial evidence proof any doubt-free connection of the appellant was in any way
connected to the crime, let alone he committed the same. A heated quarrel between the

28
Nathuni Yadav v. State of Bihar, AIR 1997 SC 1808.
29
Pokhar Singh v. Emperor, 46 Pun LR 283.
30
Rishipal v State of Uttarakhand, 2013 Cr LJ 1534 (SC) : 2013 AIR (SCW) 1167; Sukhram v State of
Maharashtra, 2007 (7) SCC 502; Sunil Clifford Daniel (Dr) v State of Punjab, 2012 (8) Scale 670, Pannayar v
State of TN by Inspector of Police, 2009 (9) SCC 152.
31
C. Magesh v. State of Karnataka, AIR 2010 SC 2768; Suraj Singh v. State of Uttar Pradesh, 2008 (11) SCR
286.
32
Brend v. Wood, (1946) 62 TLR 462; Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
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appellant-accused and the deceased days before the incident doesn’t clearly establish the
existence of mens rea of the appellant-accused. It is humbly submitted that the appellant was
neither seen directly nor did circumstantial evidence proof any doubt-free connection of the
appellant-accused was in any way connected to the crime, let alone he committed the same.
17. Actus reus is the physical conduct of the accused. Conviction of a criminal charge
requires evidence establishing beyond a reasonable doubt that the accused possessed the
requisite ill mental state and performed a voluntary act in furtherance to such mental state
that caused the harm to the aggrieved and the society as a whole. A man is said to have
caused the actus reus of a crime, if, that actus would not have occurred without his
participation in what was done.
18. It is humbly submitted that the appellant was neither seen directly nor did
circumstantial evidence proof any doubt-free connection of the appellant was in any way
connected to the crime, let alone he committed the same. The prosecution story that the
deceased and the appellant-accused had a quarrel with each other for some reason on the
village road, where the latter threatened the deceased with dire consequences. Words uttered
in a fit of anger do not qualify as mens rea and thereby, does not make the appellant liable to
be held guilty for the murder of the deceased.
19. Also, if the deceased felt threatened and suspected anything, he could have lodged a
complaint but he did not. The lack of ocular evidence in the present case makes it open to
reasonable doubt as to the guilt of the appellant. The rule is that, the court must acquit even if
they are not satisfied that the story of the accused is true, if the court thinks that it might
reasonably be true. The requisite mens rea and actus reus is not present in the instant case
and therefore, the stance by the learned trial court is unjustified and liable to be set aside.

[II.C] NO INDEPENDENT EYE WITNESSES WERE EXAMINED AND THE

MEDICAL EXAMINATION OF THE BODY OF THE DECEASED PROVIDED NO
CONCLUSIVENESS AS TO THE CAUSE OF DEATH.

20. It is humbly submitted that the prosecution has produced no independent witnesses.
This discrepancy is a material fact on which the conviction of the appellant-accused is liable
to be set aside. The prosecution could have brought other witnesses to corroborate the
allegation laid down against the appellant who could have conclusively established about his
guilt. Further, the reliability on the fact that the appellant-accused was the one who killed the
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deceased on the fact they had a heated argument some days ago is vague and inconclusive.
The circumstances did not form a complete chain in a murder case33
21.

[II.D] INVESTIGATION BY THE POLICE IS ILLEGAL, IRREGULAR AND

INSUFFICIENT AND THE PROSECUTION CASE IS FLAWED.

22. A confession should be clear and unequivocal whether it is a judicial or extra-judicial

confession. The confession in this case which was made before a large number of persons in the
panchayat was more in general and vague terms. The court said that no reliance could be placed on
it.
23. Where the version of the accused as per the extra-judicial confession was inconsistent with
the medical evidence besides the same being retracted, conviction of the accused solely on the basis
of such extra-judicial confession was highly unsafe 34.

33
Lakshmi Kirsani v State, 2001 Cr LJ 3648 (Ori) : (2001) 91 Cut LT 223.
34
Chhittar v. State of Rajasthan, AIR 1994 SC 214 : 1994 Cr LJ 245 : (1995) Supp 4 SCC 519.