 May it please the Hon’ble court my name is Samarth Mehrotra and I’m counsel 1 and

my co-counsel is Siddharth Bhargava and we are on behalf of respondent State of

Bombay.
 Counsel seeks permission to address the court as Your Lordship.
 Your Lordship I would be dealing with the issue 1st and 2nd and my co-counsel will be
addressing the issue 3rd and 4th.
 If your Lordship is well versed with the fact of the case then counsel seeks
permission to proceeds with issue.

In the facts instant case are that two newly met college friends, Anamika and Gaurav
decides to have a party at Anamika’s place. They also happened to invite few of their friends
Saurav, Mayank and Nikita. The party started on 25th Jan to the morning of 26th of January.
After the party ended Anamika went on an Instagram live session in which she accused
Gaurav, Saurav and Mayank of touching her inappropriately during the party. All the
information about the inappropriate touching was given by Nikita.

The video went viral and hailing from a political background Saurav’s and Mayank’s family
were heavily humiliated. On 26th Jan. at 8 pm Nikita received a text from Gaurav’s cell to
meet her at a secluded area, and thereafter Anamika went missing. A missing report was
lodged in the police station, after further interrogation on 27th Jan, 2pm Gaurav was also
found dead.

An investigation team went on to investigate further, and seized the Insta live session video.
On a secret information police also nabbed two persons from a hotel with relation to illegal
arms case, but on further investigation it was revealed that they were connected with the
present case too. After extensively interrogating the two persons one of them, namely
Daulat Ram confessed to the crime on 2nd march 2020. Accordingly, he also gave the same
confession before the judicial magistrate too. The confession was later on retracted by him.
The investigating agency were able to spot certain incriminating material from spot of
incidence as well.

On the basis of confession further investigation took place and Saurav’s and Mayank’s family
was also nabbed, their phones were also seized by the agency for extraction of information.
The matter was taken to the session’s court where 14 witnesses were examined by the
prosecution along with 13 exhibits. On the basis of this the court awarded death sentence to
the accused.The present appeal is for the same.

Your Lordship counsel seeks permission to proceeds with the argument.

Your Lordship my first issue is whether the Instant Appeal is maintainable?

Counsel humbly submits, that the present appeal is not maintainable under section 374 Sub
section 2 of the CrPC. Because under section 375 of CrPC which states No Appeal in certain
cases when accused pleads guilty. Notwithstanding anything contained in section 374,
where an accused person has pleaded guilty and has been convicted on such plea, there
shall be no appeal,-if the conviction is by session court or Magistrate of the first class.
Whereas in instant case, the accused pleaded guilty through the submission of the judicial
confession in front of the Hon’ble JMFC and moreover, all the relevant provisions of law
were duly followed by the trial court while sentencing death penalty to the offender.

Your lordship, moving further to my 2 nd point to support my issue that is, Instant case has no
merit as the chain of event which confirms the completion of circumstances that resulted in
the crime. Your lordship in the case of Dhananjoy Chatterjee Alias Dhana the Hon’ble stated
that the case based on circumstantial evidence, the circumstances from which the
conclusion of guilt is to be drawn have not only to be fully established but also that all the
circumstances so established should be of a conclusive nature and consistent only with the
hypothesis of the guilt of the accused. As it is a settled provision of law, that a judicial
confession is a sufficient piece of evidence in order to convict a person. In our instant case,
Daulat ram one of the main accused accepts his guilt by making a judicial confession in front
of the Hon’ble JMFC. Moreover, there are ample amount of corroborative evidence present
in our case such as CDR & SDR records; blood-stained clothes recovered from the house of
accused; 4lacs rupees recovered from the accused when they get nabbed by the police; etc.
All of this corroborative evidence confirms the chain of event as mentioned by the accused
in his confessional statement and hence, conclusively proves the guilt of the accused.
Therefore, Your Lordship in light of the above-mentioned reasons and considering the facts
that suggest the adverse manner of crime, the counsel humbly submits that the instant
appeal is not maintainable.

Your Lordship now counsel seeks permission now to present issue 2 nd

Your lordship issue 2nd highlight that WHETHER THE INSTA LIVE SESSION COULD QUALIFY AS
DYING DECLARATION?

Counsel humbly submits that the Instagram live video must be considered as a dying
declaration under section 32 sub section 1 of Indian evidence act as there are several
reasons that make it admissible. A dying declaration is admissible in court as and the
Instagram live video must be considered as a dying declaration under section 32 (1)7 as
there are various reasons that make it admissible. A dying declaration is admissible in court
as an exception to sec- 60.If we take a look at the case of Atbir the court held that “If after
careful scrutiny, the court is satisfied that the dying declaration is true and free from any
effort to induce the deceased to make a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it the basis of conviction, even if there is no
corroboration. Therefore in present case it was proven in the session court that:-

1) Gaurav’s death cannot put Anamika’s dying declaration on suspicion,

2) That there was no motive of Vengeance or tutoring in the dying declaration,

3) Apprehension of death is not necessary to make a dying declaration admissible

Your lordship Counsel further briefly submits the point:-

Firstly the Gaurav death cannot put Anamika’s dying declaration on suspicion because
principal of Dying declaration is based upon nemo moriturus praesumitur mentire, in virtue
of this principle in the case of Munnu raj Supreme Court held that dying declaration must be
approached with caution, there is neither a rule of law nor a rule of prudence which has
hardened into a rule of law that a dying declaration cannot be acted upon unless it is
corroborated. Therefore, a dying declaration can be believed and sometime can also
become the sole evidence in conviction, provided suspicion regarding its admissibility is
removed .The suspicion is further removed by stating: That the declaration was valid for
Anamika’s death; and there was no motive of Vengeance or tutoring in the dying
declaration.

Moving further the second that there was no motive of Vengeance or tutoring in the dying
declaration counsel humbly submits that in the case of Sharad Birdhichand Sarda supreme
court held that the condition of the admissibility of the evidence was discussed that the
circumstances mentioned must have some proximate relation to the actual occurrence and
must be of the transaction which resulted in the death of the declarant, that is, the cause of
the declarant’s death comes into question. Therefore, it was held that only those
statements are admissible where the statements were not so remote in time so as to lose
their proximity with the cause of death. Therefore in the present case after statements
given by Anamika in her live Instagram session, her death occurred in a very inconclusive
manner. The retracted statements given to the Magistrate confirms that the death was a
result of conspiracy made by the accused. It is further contended that here death is a logical
consequence of the drama that started after Anamika gave her dying declaration, which
triggered the parents of Saurav and Mayank as their reputation due to the live video was
getting tarnished, therefore, a crime of grievous murder was committed by the accused.

Moving forward counsel submits last the 3rd point that is: - Apprehension of death is not
necessary to make a dying declaration admissible, counsel humbly submits that in order to
make a statement admissible there is no need to always have an apprehension of death or
some kind of harm before or after the statement is made. In the case of Kanchan singh it
was re-emphasized that it is not necessary that the statement should be made at a time
when the person making it was at the point or in danger of death. Therefore, it does not
matter if the statement made was when the victim had no fear of death, and hence, the
statements mentioned in the dying declaration must be admissible as dying declaration.