Efore HE Ourt F Essions T Umbai Aharashtra: Able of Ontents

TABLE OF CONTENTS
TC-03
CHECKMATE-2020
BEFORE THE COURT OF SESSIONS

AT MUMBAI, MAHARASHTRA
STATE OF MAHARASHTRA .......................................................... PROSECUTION
V.
DR. PETER HEMSWORTH. ........................................................ …DEFENCE
FOR OFFENCES CHARGED UNDER:
SECTIONS 306, 316 READ WITH SECTION 325 OF THE INDIAN PENAL CODE, 1860
UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE
MEMORANDUM ON BEHALF OF THE PROSECUTION
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MEMORANDUM ON BEHALF OF PROSECUTION
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................................................... 2
LIST OF ABBREVIATIONS .................................................................................................................. 3
INDEX OF AUTHORITIES ................................................................................................................... 4
STATEMENT OF JURISDICTION .......................................................................................................... 7
STATEMENT OF FACTS ..................................................................................................................... 8
STATEMENT OF ISSUE..................................................................................................................... 10
ARGUMENTS ADVANCED ............................................................................................................... 14
I. THAT THE EVIDENCE FROM ALEXA DEVICES IS ADMISSIBLE IN A COURT OF

LAW. ........................................................................................................................................ 14
II. THAT THE EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE IN
A COURT OF LAW. ................................................................................................................ 17
III. THAT THE ACCUSED PETER AND THE PRIME SUSPECT RAJESH CAN BE
SUBJECTED TO NARCO ANALYSIS. ................................................................................. 21
IV. THAT THE ACCUSED PETER IS GUILTY OF COMMITTING THE OFFENCE OF

CAUSING DEATH OF QUICK UNBORN CHILD BY ACT AMOUNTING TO
CULPABLE HIMICIDE AS MENTIONED UNDER § 316OF THE IPC. ............................. 26
V. THAT THE ACCUSED CAN BE CHARGED AND TRIED UNDER § 302 OF IPC
WHICH PRESCRIBES PUNISHMENT FOR MURDER ....................................................... 31
PRAYER.......................................................................................................................................... 36
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STATEMENT OF JURISDICTION
LIST OF ABBREVIATIONS
1. AIR- All India Reporter
2. R/W-read with
3. MHLJ- Maharashtra Law Journal
4. IPC-Indian Penal Code
5. CrPC-Criminal Procedure Code
6. Hon’ble- Honourable
7. Cri-Criminal
8. LR- Law review
9. S.C.C. – Supreme Court Cases
10. In re-in matter of
11. SC- Supreme Court
12. SCR- Supreme Court Reporter
13. v.- Versus
14. &- And
15. ¶-Paragraph
16. §-Section
17. Bom. - Bombay
18. All. - Allahabad
19. Pepsu- Patiala and east Punjab States Union
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INDEX OF AUTHORITIES
CASES
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, A.I.R. 1788 (1975)……….....16
S. Pratap Singh v. State of Punjab, 4 S.C.R. 733 (1964) ……………………………………….17
Ram Singh v. Col. Ram Singh, 2 S.C.R. Supl. 399 (1985) ………………….………………...17
N. Sri Rama Reddy v. V. V. Giri, 1 S.C.R. 399 (1971).…………..…………………………….18
R. M. Malkani v. State of Maharashtra, 2 S.C.R. 417 (1973)………………………...………...18
Justice K.S. Puttaswamy v. Union of India, 10 S.C.C. 1 (2017)………………………………..18
Deepti Kapur v. Kunal Jhulka, S.C.C. Online 672 (Del. 2020 ..................................................... 18
Kuruma v. the Queen, A.C. 197 (1955)……………………………………………………….....19
Radha Kishan v. State of U.P, 1 S.C.R. Supl. 408 (1963)…………….…………………………21
Magraj Patodia v. R.K. Birla and Ors., 2 S.C.R. 118 (1971). ..................................................... 21
Pooran Mal v. Director of Inspection, 2 S.C.R. 704 (1974)… ..................................................... 21
Manoharlal Sharma v. Narendra Damodardas Modi & Ors, 1 M.L.J. 529 (2019)……………..21
Kharak Singh v. State of UP, 1 S.C.R. 332 (1964). ...................................................................... 26
Gobind v. State of Madhya Pradesh, 3 S.C.R. 946 (1975). .......................................................... 26
Santokben Jadeja v. State of Gujarat, Cri.L.J. 68 (2008).............................................................. 27
Abdullah Qureshi & Anr v. State of Bihar, S.C.C. OnLine 746 (Pat. 2017). – 24. ...................... 28
Jabbar v State of Allahabad, Cri.L.J. 1363 (1966).………………………………………..……28
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Gour Gobindo Thakoor and another, 6 W.R. (Cr. R.) 55. (1866)……………………………….28
Gopal Sakharam Jadhav v State of Maharashtra, 1 M.H.L.J. 242 (2000)……………………….30
Anant Dagadu Bhalerao v. State of Maharashtra, 3 M.H.L.J. 518 (1999)………………………30
Mohammad Nizamuddin v. State of Bihar, 2 B.L.J.R. 928 (1995)……………………………...30
Jenjiskhan v. State, S.C.C. OnLine 147 (Mad. 2015)……………………………………………31
Murugan v. State of T.N. Cr.L.J. 1680(Mad. 1991) ………………………………………….....32
Shivaji Harishchandra Kunte v State of Maharashtra, S.C.C. OnLine 9547 (Bom . 2017)……..32
Pawan Paswan v. State of Jharkhand, S.C.C. OnLine 1661 (Jhar. 2017)……………………….32
Jakeman Cri.L.R. 104 (1983)……………………………………………………………………32
Commissioner of Income Tax v Patranu Dass Raja Ram Beri, A.I.R. 14 (PH. 1982)…………..33
State of Maharashtra v Meyer Hans George, A.I.R. 722 (1965)………………………………...33
Santosh v. State of Madhya Pradesh, Cri. L.J. 602 (1975)………………………………………34
Laxman v. State of Maharashtra, A.I.R. 1803 (1974)……………………………………………34
Md. Idrish v. State, Cr. L.J. 1724 (Raj. 2004); Md. Sharif And Anr. v. Rex, A.I.R. 380 (All.
1950); Badri v. State of U.P., A.I.R. 189 (All. 1953)……………………………………………34
State v Dinakar Bandu 72 Bom. L.R. 905 (1969)……………………………………………….34
State of Punjab v Sucha Singh, A.I.R. 1471 (2003)……………………………………………..34
Mulakh Raj v. Satish Kumar, A.I.R. 1175 (1992)……………………………………………….34
State of Madhya Pradesh v. Digvijay Singh, Cri. L.J. 1278 (1981)……………………………..34
Gour Gobindo Thakoor and another , 6 W.R. (Cr. R.) 55 (1866)……………………………….36
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Mavjibhai Ramjibhai Taviyad vs State Of Gujarat, CRIMINAL APPEAL NO.1156 of 2009...36
STATUTE
INDIAN PENAL CODE , 1860
INDIAN EVIDENCE ACT, 1872
THE CODE OF CRIMINAL PROCEDURE, 1973
INFORMATION AND TECHNOLOGY ACT, 20008
THE CONSTITUTION OF INDIA
NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 19985
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THE DEFENDANT HAS APPROACHED THE LD. SESSIONS JUDGE UNDER SECTION
26 r/w SECTION 28, SCHEDULE 1 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
WHICH READS AS HEREUNDER:
SECTION 26. COURTS BY WHICH OFFENCES ARE TRIABLE:
SUBJECT TO THE OTHER PROVISIONS OF THIS CODE -
(a) ANY OFFENCE UNDER THE INDIAN PENAL CODE (45 OF 1860) MAY BE TRIED
BY-
(i) …………….............................
(ii) THE COURT OF SESSIONS
(iii) ………………………………
SECTION 28. SENTENCES WHICH HIGH COURTS AND SESSION JUDGES MAY PASS:
(i) …………………………….....
(2) A SESSIONS JUDGE OR ADDITIONAL SESSIONS JUDGE MAY PASS ANY

SENTENCE AUTHORIZED BY LAW; BUT ANY SENTENCE OF DEATH PASSED BY
ANY SHALL BE SUBJECTED TO CONFIRMATION BY THE HIGH COURT.
(3) ……………………………..
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STATEMENT OF FACTS
STATEMENT OF FACTS
BACKGROUND
Dr. Peter Hemsworth aged 40 years was a well-known mathematician from Cambridge. Having
taught in the UK as well as the United States for many years, he decided to move to India in
2008. He got a good job at the Advanced Centre for Mathematics in Mumbai as an Associate
Professor.Alexa was daughter of an Englishman (James Courtney) and Maithili Raghuraman, a
lady of Indian origin. Returning to India 2010, Alexa Courtney got herself enrolled as the first
student for doctoral studies under Dr. Peter.Both of them got married in 2013.
SOCIAL CIRCLE
Peter and Alexa had very few friends. One couple whom they were very close to were the
Gujrals. Rajesh Gujral was an IT wizard working in a multinational in Mumbai, while his wife
SuneetGujral was an artist and interior decorator. Rajesh was such a brilliant professional that he
could hack into a computer or even a home system remotely and take control of it. The Gujrals
met Peter and Alexa on a regular basis, and got along rather well.
LIFE POST-MARRIAGE
Alexa too got a job at the same Mathematics centre where Dr. Peter was teaching. Life was
going perfect as both Alexa and Peter complement each other well at home and at work.The
work made them drift apart. There were rumours too of Peter being in a relationship with Suneet
Gujral. When confronted both Peter and Suneet denied everything. Due to too much of work
pressure, Peter censured Alexa and even assaulted her once.
TIME OF PREGNANCY
In December 2019 Alexa got pregnant when Dr. Peter asked her to abort the child.On her refusal,
Peter got livid.Peter even went on to allege that the father the baby she was expecting was
probably Rajesh on which Alexa left her matrimonial home and shifted into a hotel close by.
On getting to know about this incident, Rajesh and Suneet felt pity on her and they asked Alexa
to move into their home. Alexa started living with the Gujrals.
THE EVE OF THE INCIDENT
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STATEMENT OF FACTS
Then on 5th of May,2020 Alexa was called by Peter to his home on the pretext that his parents
wanted to meet her. Alexa along with Rajesh went to meet all of them on 11th of May,2020.
Though Peter’s parents were not there, he was cordial and explained that due to medical reasons
his parents could not come. It was 10:30 pm and Peter nearly forced Alexa to stay back for the
night as it was late. Rajesh reluctantly agreed and told Alexa that he would pick her up after
10.00 am the next morning.
THE MORNING OF THE INCIDENT
Next morning on reaching the Peter’s house, after ringing the bell for about 05-6 minutes, he
called Peter, who said that he was at work and had left home at 07.00 am. Rajesh tried to push
the front door, once inside he started searching the house. Soon to his horror he found Alexa
hanging in the bedroom from the fan. He called Peter as well as the Police. The Police made an
inquest report and sent the body for post mortem examination. There was another Alexa mini
music player lying on Peter’s bedside, which was not found at the time of the search.
THE INVESTIGATION AND ACCUSATIONS
When Rajesh was questioned, he failed to give any plausible explanation of how he got ingress
into the house. The post mortem report came in the next day. After this, Peter was arrested and a
case was filed under the Sec 306, 316 and 325 of the IPC.
Rajesh, during investigation confessed to the Police that he had taken the Alexa mini music
player which was lying on the bedside and claimed that if he is given an opportunity, he could
retrieve the recording of this and find out what the last conversation. He suggested that he was
willing to do this if he is not charged with the offence of theft, trespass or any other offence
under the law.
THE TRIAL
At the trial the prosecution claims that the last conversation in the room could have been
recorded by ‘Alexa', mini music player which records conversations if the word ‘Alexa 'is
spoken twice within its vicinity.
Peter also submitted his written consent to NARCO analysis examination and any other relevant
test to be performed. Rajesh on the other hand flatly refused for undergoing the same.
Peter is of the opinion that Rajesh was holding the system to ransom. Peter claims that producing
this as evidence was invasion of his privacy.
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STATEMENT OF FACTS
STATEMENT OF ISSUE
1. WHETHER EVIDENCE FROM THE ALEXA DEVICES IS ADMISSIBLE IN A

COURT OF LAW?
2. WHETHER EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE

IN A COURT OF LAW?
3. WHETHER DR. PETER AND RAJESH CAN BE SUBJECTED TO NARCO

ANALYSIS?
4. WHETHER DR. PETER CAN BE CHARGED UNDER SECTION 316, IPC?
5. IS IT A FIT CASE WHERE THE COURT SHOULD ADD A CHARGE U/S 302
IPC AND TRY THE ACCUSED PERSON FOR THAT CHARGE AS WELL?
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SUMMARY OF ARGUMENTS
I. THAT EVIDENCE FROM ALEXA DEVICES IS ADMISSIBLE IN A COURT OF

LAW.
It is humbly submitted that SECTION 2(t) of the Information Technology Act, 2008 defines
the term Electronic Record and states that ‘Electronic Record’ means data, record or data
generated, image or sound stored, received or sent in an electronic form or micro film or
computer-generated micro fiche.
And various articles from the Wire, Washington post have written about how the parent
manufacturer of Alexa devices ‘Amazon’ have agreed to the fact that these devices due to
certain words when spoken get triggered and record the ongoing conversations.
Thus, this device having sound stored in an electronic form falls under the category of
Electronic Record.
II. THAT EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE IN A

COURT OF LAW.
It is humbly submitted that there is no laid down law in the Country of India
which prevents the admissibility of such stolen evidence.
Neither the parallel of Doctrine of exclusionary powers or the rule of the fruit of poisonous
true, thus the person committing the theft can be dealt in whatever way the Court seems fit
but the evidence should not be thrown away as evidences as they can form a basis to provide
a fair and just trial to the innocent and justice to the victim.
SUBJECTED TO NARCO ANALYSIS.
It is submitted before this Hon’ble court that the accused Peter and the suspect Rajesh can be
subjected to Narco analysis as Peter has already given his consent for the Narco analysis and
being a prime suspect Rajesh should also be examined for the narco analysis.

“CAUSING DEATH OF QUICK UNBORN CHILD BY ACT AMOUNTING TO
CULPABLE HOMICIDE” AS MENTIONED UNDER SECTION 316 OF THE IPC.
¶1 The act done by the accused to the victim Alexa Hemsworth amounted to Culpable
Homicide
It is humbly submitted before the honourable Court that the accused had done the act which
comes under the purview of culpable homicide. It was stated in the case of Jabbar v State of
Allahabad1, that unless the act is done against the mother with an intention or with a knowledge
which brings it within the purview of Section 2992, it cannot constitute an offence under this
section merely because the death of a quick unborn child has resulted from an act against the
mother. Therefore, it is necessary for the act done by the accused to be proved that it falls under
the category of culpable homicide.
¶2 Death of Quick Unborn child occurred by the act of Accused
In the present case death of the quick unborn child had taken place by the act done to the child’s
mother by the accused, the act which amounted to culpable homicide as the accused had
intention as well as knowledge. Moreover, the foetus was found to be of 22 weeks old by the
Post Mortem Report, and it had also died due to asphyxia because of the act which was done to
the mother Alexa Hemsworth. Hence, the cognizance under section 316 is attracted.
1
Jabbar v. State of Allahabad, S.C.C. OnLine 337 (All. 1965).
2
Indian Penal Code § 299 (1860).
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V. THAT THE ACCUSED CAN BE CHARGED AND TRIED UNDER SECTION 302 OF
IPC WHICH PRESCRIBES PUNISHMENT FOR MURDER.
¶1 The accused had the intention to cause the victim’s death.
For the offence to fall under the category of Murder, it is necessary to prove the motive or intent
of the accused to cause death of the victim. By relying upon facts of the case, it can be said that
the accused had the motive as well as the intention to cause her death. His actions were governed
by the intention to kill her therefore the accused had the required mens rea to cause her death.
¶2 The accused did an act which in all probabilities would cause death.
The act of hanging is enough to cause the death of any person. So the accused had this
knowledge that by this act the death of the victim was in all probabilities to occur. Hence this is a
case of Murder. He had the intention to kill her as well as did an act which he knew was
imminently dangerous that it must, in all probability, cause her death, or such bodily injury as is
likely to cause her death. Therefore, this case falls under the category of Murder.
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ARGUMENTS ADVANCED
I. THAT THE EVIDENCE FROM ALEXA DEVICES IS ADMISSIBLE IN A COURT

OF LAW.
¶1It is submitted before this Hon’ble Court that Alexa devices are electronic records which in the
case at hand have acted as tape recorders and thus are admissible under § 65(A) of Indian
Evidence Act,1872.
[1.1] MEANING OF THE TERM ‘ELECTRONIC RECORD’
¶2§ 2(t) of the Information Technology Act,2008 defines the term Electronic Record and states
that ‘Electronic Record’ means data, record or data generated, image or sound stored, received or
sent in an electronic form or micro film or computer-generated micro fiche.
And various articles from the Wire, Washington post have written about how the parent
manufacturer of Alexa devices ‘Amazon’ have agreed to the fact that these devices due to certain
words when spoken get triggered and record the ongoing conversations.
Thus, this device having sound stored in an electronic form falls under the category of Electronic
Record.
[1.2] ADMISSIBILITY OF ELECTRONIC RECORDS
¶3 The Apex Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas
Mehta3, propounded that the use of tape-recorded conversation was not confined to the purpose
of corroboration and contradiction only, but when duly proved that there is no presence of
tampering, it could be used as substantive evidence.
3
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, A.I.R. 1788 (1975).
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In the same case, the Court clearly laid down that tape-recorded speeches were “documents as
defined by § 3 of the Indian Evidence Act,1872.”, which stood on no different footing than
photographs.
In the case of S. Pratap Singh v. State of Punjab 4 , the Apex Court considered this issue of
admissibility and clearly propounded that tape-recorded talks are admissible in evidence and
simple fact that such type of evidence can be easily tampered with could not certainly be a
ground to reject such evidence as in admissible or refuse to consider it.
[1.3] PREREQUISITES TO ADMISSIBILITY OF SUCH EVIDENCE
¶4 As there is a high degree of probability for such evidences to be tampered with, can be
erased with ease by subsequent recording and insertion could be superimposed this there are
various factors to be considered while acceptance of such evidence which were laid down by the
Supreme Court if the Country in the case of Ram Singh v. Col. Ram Singh5, this was done in
order to let justice prevail by admitting such evidences, the conditions are genuine and simple as
follows;
a) The voice of the speaker must be duly identified by the maker of the record or by others who
recognize his voice.
b) The accuracy of the tape-recorded statement must be duly proved by the maker of the record.
c) The statement must be relevant according to the rules of Evidence Act.
d) The recorded cassette must be carefully sealed and kept in safe or official custody.
e) The voice of the speaker should be clearly audible and not lost or distorted by other sounds
or disturbances.
[1.4] ADMISSIBILITY OF ELECTRONIC RECORDS AS DIRECT AND PRIMARY

EVIDENCES
4
S. Pratap Singh v. State of Punjab, 4 S.C.R. 733 (1964).
5
Ram Singh v. Col. Ram Singh, 2 S.C.R. Supl. 399 (1985).
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¶5 Not only are electronic records admissible in the Court but also act as primary and direct
evidences.
Original audio recordings are accepted as a valid source of Evidence in the Court of Law. In the
case of N. Sri Rama Reddy v. V. V. Giri6, the apex court recognized tape recordings as ‘res
gestae’ meaning they are considered relevant to the case and in itself is also primary and direct
evidence admissible of what has been said and picked up by the receiver.
The same view was reiterated by the Apex court in R. M. Malkani v. State of Maharashtra7,
where the court ordained that when a court permits a tape recording to be played over it is acting
on real evidence if it treats the intonation of the words to be relevant and genuine.
[1.5] NO INFRINGEMENT OF RIGHT TO PRIVACY IN ADMITTING SUCH

EVIDENCE
¶6 Privacy is for sure an essential aspect of human dignity, it enables the person to retain the
autonomy of mind and body but a 9-judge bench in the landmark judgement of Justice K.S.
Puttaswamy v. Union of India8in 2007 held that privacy is a right protected by the Constitution
but is not an absolute right. Any invasion to the Fundamental Rights must be in the basis of the
law stipulating a just, fair and reasonable procedure.
The Right to fair trial outweighs the Right to Privacy, Justice Anup Singh Bhambani in the
case of Deepti Kapur v. Kunal Jhulka9 gave its opinion that any evidence collected with breach
of fundamental right would not make the evidence inadmissible in the Court of law. The Court
observed that “the right to privacy must yield the right to a fair trial.”
Thus in the case at hand, even if the tape recorded conversations by Alexa device are private
conversations between a husband and wife, they still are not a breach of fundamental rights as
the evidence is essential for fair trial and to give justice to the deceased where there are high
chances of the Alexa device containing some relevant audio recording from the night of the
event as the device gets activated by saying the word ‘Alexa’ twice which is also the name of the
6
N. Sri Rama Reddy v. V. V. Giri, 1 S.C.R. 399 (1971).
7
R. M. Malkani v. State of Maharashtra, 2 S.C.R. 417 (1973).
8
Justice K.S. Puttaswamy v. Union of India, 10 S.C.C. 1 (2017).
9
Deepti Kapur v. Kunal Jhulka, S.C.C. Online 672 (Del. 2020).
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accused, hence makes it more probable to be taken twice and thus getting some relevant
conversations recorded which will help in proving the guilt of the accused.
II. THAT THE EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE
IN A COURT OF LAW.
¶1 There is nothing that prevents Indian courts from considering even stolen evidence, if it
helps establish guilt or prove one’s innocence.
The Indian courts ’powers to admit such evidence is bolstered when the probative value of the
evidence indicates its relevance. Even otherwise, the Indian Constitution empowers the Supreme
Court to make any order for the discovery or production of any document before it.
[2.1] THE STRICT APPROACH IN INDIA
¶2 India, pursues a strict approach where the illegality or impropriety employed in collection of
evidence doesn't (in the absence of the specific constitutional provisions on the subject) render
the evidence so obtained legally inadmissible.
The strict legalistic approach has been borrowed from the English Law, wherein the Privy
Council in the case of Kuruma v. the Queen10, held that evidence of the accused's unlawful
possession of ammunition, discovered in consequence of an illegal search of his person, was
admissible.
In the recent English case of Singh v. Singh, it was reiterated that there is no absolute prohibition
on the use of illegal or covertly obtained evidence and that the courts will allow such evidence to
be presented, if it is particularly relevant to the case.
[2.2] RELEVANCY IS WHAT MATTERS
10
Kuruma v. the Queen, A.C. 197 (1955).
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¶3 In India, the legal relevance of the evidence to the facts in issue under the present law, is
the only pertinent consideration.
§ 3(e) of the of the Indian Evidence Act, 1872 defines Relevant in the context of facts to say that,
one fact is relevant to another when the one is connected with the other in any of the ways
referred to in the provisions of the Evidence Act. Furthermore, Chapter 2 of the Evidence Act
deals with Relevancy of the Facts, wherein § 5 particularly envisages that Evidence may be
given in any suit or proceeding of the existence or non-existence of every fact in issue and of
such other facts as are hereinafter declared as relevant, and of no others.
In Radha Kishan v. State of U.P11., the recovery of certain articles was challenged on the ground
that the search was made in contravention of § 103 and 165 CrPC. The Hon'ble Supreme Court
repelled the contention with the following view:
So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming
that the search was illegal the seizure of the articles is not vitiated and they being relevant to the
case are thus admitted.
Thus, the provisions of Chapter 2 of the Evidence Act determine relevancy' as the only test of
admissibility of evidence. There is no provision that bars admissibility of evidence obtained
illegally and/or improperly under Chapter 2 or otherwise under the Evidence Act.
[2.3] THE POSITION OF COURTS IN INDIA
¶4 In the case of Magraj Patodia v. R.K. Birla and Ors.12, the Hon’ble Supreme Court for the
first time opined that:
The fact that a document was procured by improper or even illegal means will not be a bar to its
admissibility if it is relevant and its genuineness is proved. But while examining the proof given
as to its genuineness the circumstances under which it came to be produced into court have to be
taken into consideration.
11
Radha Kishan v. State of U.P, 1 S.C.R. Supl. 408 (1963).
12
Magraj Patodia v. R.K. Birla and Ors., 2 S.C.R. 118 (1971).
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In the case of R.M. Malkani v. State of Maharashtra13, it was observed and held that a document
such as a tape-recorded conversation, procured by improper or even by illegal means, as
contemporaneous relevant evidence is admissible if its relevance and genuineness are proved. If
the same is not tainted by coercion or unfairness, there is no reason to exclude this evidence.
A Constitution Bench in Pooran Mal v. Director of Inspection14, clarified that:
If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and,
secondly, that Act or any other similar law in force does not exclude relevant evidence on the
ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the
supposed spirit of our Constitution for excluding such evidence.
The recent case of Manoharlal Sharma v. Narendra Damodardas Modi & Ors.15, was the one
involving public and national interest, wherein a group of writ petitions (PIL) were filed on the
issue relating to the procurement of 36 Rafale Fighter Jets for the Indian Airforce. During the
said proceedings, the government intimated the Hon'ble Supreme Court that documents related to
Rafale Aircraft deal had been stolen from the Defence Ministry and the petitioners sought a
review of its verdict dismissing all pleas against the purchase of the jets relying upon those
stolen' documents.
The bench on perusing and hearing the Rafale review petitions stated that it couldn't ignore
information that was brought before it, as the same would be relevant in greater public interest.
The government initially challenged the admissibility of such documents produced before the
Hon'ble Court as being stolen and attributed the violation of the Official Secrets Act, 1923 (OS
Act), to the same. However, the government did not challenge the credentials of the documents
per se, and only questioned the methods adopted by the reporter to obtain the documents. Thus,
with the allegations made in the review petitions, the Supreme Court took the contents given to it
in the sealed cover at face value and based its decision on review and perusal of such documents.
13
R.M. Malkani v. State of Maharashtra, 2 S.C.R. 417 (1973).
14
Pooran Mal v. Director of Inspection, 2 S.C.R. 704 (1974).
15
Manoharlal Sharma v. Narendra Damodardas Modi & Ors, 1 M.L.J. 529 (2019).
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It can thus be inferred that once a particular piece of evidence is before the court the same shall
not be over looked and/or ignored. The existence and relevance of such evidence if found
probative to the facts and circumstances of the case, the same is taken due cognizance of and is
admitted as evidence. The onus shifts upon the accused/defence to deny the veracity, authenticity
and/or reliability of such evidence. The issue of improper and illegal mode or method of
obtaining such evidence doesn't have a direct impact upon its contents and relevance.
[2.4] BACK TO THE CASE AT HAND
¶5 Although the Alexa mini music player was stolen by one Mr. Rajesh Gujral, it was done so
by him only in good faith as he being a well wisher of the deceased and also someone who took
care of her and gave her shelter for 2 years was much eager to find out evidence to ensure that
the accused is punished for his in humane actions against the innocent 22-week pregnant mother.
His bonafide intentions can also be seen when he himself has confessed about the evidence he
stole and wishes to be a help for the Court as he claims that given the opportunity, he could
retrieve the recording of this and find out what was the last conversation.
The Law Commission in its 94th Report, 1983 also stated that, “As of now, for law enforcement,
there is only one test of evidence, that is test of relevancy.
In the current case, where there are no eye-witnesses, no other incriminating evidence, the audio
recording from the Alexa mini music player is the most substantive evidence at the moment to
prove the guilt of the accused and to prove the brutality with which he inflicted the injuries on
the body of the deceased and the innocent child in her womb.
Thus, applying the test of relevancy, this turns out to be the most relevant and the only evidence
at the moment, also ensuring that the relevancy outweighs the violations of Right to Privacy (if
any) in this case,
The name of the deceased being Alexa and the device in question being activated by saying the
same mentioned named i.e. Alexa twice makes it more probable for it to have been activated at
some point when the incident took place thus recording some relevant conversations which will
leave no traces of suspicion in proving the accused as guilty which is why the accused is hiding
-20-
behind the doors or privacy to ensure that this incriminating evidence is not admitted in the Court
at any cost but this being the only visible passage to ensure that Justice prevails, the Prosecution
has complete undoubted faith in the Criminal justice system and the Hon’ble Court that it will
take the evidence as admissible.
SUBJECTED TO NARCO ANALYSIS.
¶1 It is submitted before this Hon’ble court that the accused Dr. Peter and the suspect Rajesh
can be subjected to Narco analysis as Peter has already given his consent for the Narco analysis
and being a prime suspect Rajesh could also be examined for the narco analysis.
[3.1] What is narco-analysis?
¶2 The term “narco-analysis” was introduced in 1936 for the use of narcotics to induce a
trance-like state wherein the person is subjected to various queries. The term “narco-analysis” is
derived from Greek word “narkc” (meaning anaesthesia or torpor) and is used to describe a
diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly
barbiturates, to induce a stupor in which mental elements with strong associated affects come to
the surface, where they can be exploited by the therapist. The term “narco-analysis” was coined
by Horselley. It becomes difficult for the person to lie and his answers would be restricted to
facts he is aware of the statements made by the accused are recorded on audio and video
cassettes, and the report of the expert is helpful in collecting evidence. The use of such
drug in police work or interrogation is similar to the accepted psychiatric practice of narco-
analysis and the only difference in the two procedures is the difference in the objectives.
[3.2] The Procedure
¶3 The test of narco analysis involves the administration of small amounts of Sodium
Penthatol and Sodium Amytal dissolved in distilled water and mixed with dextrose, intravenously
over a period of three hours. The psychological effect is that the subject loses all
-21-
inhibition and does not have the ability to manipulate answers easily. This is why it is believed
that the information revealed during such a test is mostly the truth.
The subject is then interrogated by investigating officers in the presence of doctors and the same
is recorded in audio and videocassettes. Also, experts prepare a report, which is used for the
purpose of collecting evidence.
¶4 When it has been used?

The first narco-analysis was done in the Forensic Science Laboratory, Bangalore in 2001 on
an individual associated with offences committed by Veerappan. For conducting the test,
NHRC has laid down certain guidelines to the effect that the test should only be
administered if the consent of the subject is obtained before a Magistrate and therefore, the
police cannot by themselves conduct the test whenever they deem appropriate.
These techniques are equally relevant in cases where conventional forms of crime have
assumed immense proportion, say in the form of public outcry, or to make up for
shortfalls in investigative processes, say, the instance of Abdul Karim Telgi in the stamp
paper scam and several other suspects in the Aarushi Talwar murder case. They differ from
usual investigative techniques in that they involve a certain degree of cooperation from the
accused. Such cooperation need not be voluntary and in fact is often coercive in nature.
The law on the status of scientific tests for evidentiary purposes still is not absolutely clear.
Recently, a Sessions Court in Faizabad in Uttar Pradesh accepted the report of a narco-
analysis test, stating that it is evidence which can be relied upon, to reject a bail
application in respect of a murder case.
Fortunately, it was expressly treated as evidence only with respect to the bail application to
indicate something of the nature of a prima facie case, and not for proving the
statements of the accused against him to convict him.
¶5 Utility in investigative processes
The scientific tests may be employed in two ways, that is, they may directly be used as
evidence in court in a trial or they may be used merely as clues for investigation. Where the tests
-22-
involve the making of a statement, they may be directly adduced in evidence, provided they do
not amount to a confession because proof of a confession before a police officer or in the
custody of a police officer is prohibited. However, if the statements are merely admissions, they
may be adduced in evidence. Alternately, where no statement has been made or the statement
cannot be adduced without an interpretation of the report prepared at the end of the test, the
results of the test as interpreted by an expert may be furnished to the court.
§ 45 of the Evidence Act, 1872 does allow experts' opinions in certain cases. However, this § is
silent on other aspects of forensic evidence that can be admissible in court in criminal
proceedings.
§ 161(2) of the Criminal Procedure Code also provides that every person is bound to answer
truthfully all questions, put to him by [a police] officer, other than questions the answers to
which would have a tendency to expose that person to a criminal charge, penalty or forfeiture.
Hence, Article 20(3) of the Constitution and also § 161(2) of the Code of Criminal Procedure
enshrine the right to silence.49
To judge whether statement given is confession or not, is by adducing it alongside a discovery

made pursuant to the statement. In cases where an incriminatory set of statements is additionally
backed by discoveries which are sufficient to incriminate the accused independently of the
statements, then the discoveries too should be excluded from evidence. This is because the
discoveries, which comprise all the evidence that is required for conviction, directly follow from
incriminatory statements of the accused. However, where the discoveries are not sufficient to
result in incrimination, but only amount to evidence of some facts against the accused, they may
be admissible in evidence, as they are merely the equivalent of admissions as they require
collection of additional evidence.
[3.3] NARCO ANALYSIS: NOT A HEALTH HAZARD
¶6 It can be seen from the procedure that narco analysis goes a step further than lie detection
tests by the injection of a foreign substance. However, this in no way makes narco analysis a
health hazard, the following being reasons for the same:
-23-
The dosage of the serum is carefully regulated depending upon the age, sex, health and physical
condition of the accused. The test is conducted by a team consisting of an anaesthetist who
administers the drug and regulates its dosage, a physician who certifies the fitness of the subject
before the administration of the test, and a clinical/forensic psychologist who
interrogates and interacts with the accused. Furthermore, the drug used in low concentration
during narco analysis, does not have any adverse effect on the body.
Sodium Amytal and Sodium Pentothal, commonly used for narco analysis, is also used by
psychiatrists in treatment of patients to help them recall traumatic experiences
they are otherwise unable to remember. Anaesthesiologists have opined that these drugs have no
side effects since the drug dissipates in the body within five minutes.
Human rights activists argue that narco analysis is an infringement upon an individual's basic
right to privacy. In the case of Kharak Singh v. State of UP16, Subba Rao J. was of the opinion
that privacy was an essential ingredient of personal liberty under Article 21. Further, in the
case of Gobind v. State of Madhya Pradesh17, the Supreme Court held the right to privacy to be
included in the right to personal liberty guaranteed under Article 21. However, the Court also
held that the right to privacy is not an absolute one and that it can be restricted on the basis of a
compelling State interest. This is to say that just as the Right under Article 21 is subject to
restrictions, so is the Right to Privacy. However, such restriction must be under a procedure
established by law.
In this context, State's responsibility towards public safety, justice

dispensation and prevention of crimes does qualify as compelling State
interest. Narco analysis plays a vital role in the realization of this State interest. It may be argued
that the procedure of narco analysis amounts to an invasion of privacy since it involves eliciting
personal information from the accused known only to him. However, it must be noted that the
procedure is one with the requisite sanction under the existing laws of the land (as will be proved
subsequently) and assumes the character of a restriction imposed by law on the said Right.
16
Kharak Singh v. State of UP, 1 S.C.R. 332 (1964).
17
Gobind v. State of Madhya Pradesh, 3 S.C.R. 946 (1975).
-24-
[3.4] STATUTORY SANCTION ESTABLISHED
¶7 Having established the constitutionality of narco analysis, we shall now proceed to examine
whether the procedure derives sanction from the existing laws of the land.
Recently, the Solicitor General of India, Ghoolam E Vahanvati, arguing before a bench presided
by the Chief Justice of India K.G. Balakrishnan, hearing petitions against the
procedure of narco analysis, justified its use as a tool of investigation. He asserted that the
procedure of narco analysis finds legal sanction under the newly amended § 53 of the Criminal
Procedure Code. In 2005, an Explanation clause was added to § 53 of the Criminal Procedure
Code, the relevant part of which reads as follows:
¶8 Explanation— In § 53-A and 54, —
(a) examination “shall include the examination of blood, blood stains, semen,
swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings
by the use of modern and scientific techniques including DNA profiling and such other tests
which the registered medical practitioner thinks necessary in a particular case……………
(emphasis supplied)
It is submitted that the expression ‘such other tests’ signifies a provision for recognising
newly developed techniques in forensic science and permitting the same in investigative
procedures. MR Shah J. in the case of Santokben Jadeja v. State of Gujarat18 observed that:
“§ 53 of the Criminal Procedure Code has been brought on the statute book to have
efficient and scientific investigation. It is intended to help in the investigation of the crime on
scientific lines so as to enable collection of evidence to prove the guilt or innocence of the
persons accused of committing the crime as the modern community requires modern
scientific methods of crime detection, lest the public go unprotected.”
18
Santokben Jadeja v. State of Gujarat, Cri.L.J. 68 (2008).
-25-
Hence it can be concluded that purpose behind specifically including the phrase ‘such other
tests’ in addition to those already specified (DNA profiling, testing of blood samples, etc.),
was to accommodate future advancements in the field of forensics like Narco Analysis.
Therefore, Narco Analysis as an investigative tool finds legal sanction in the existing
provisions of the Criminal Procedure Code.

CAUSING DEATH OF QUICK UNBORN CHILD BY ACT AMOUNTING TO
CULPABLE HIMICIDE AS MENTIONED UNDER § 316OF THE IPC.
¶1 According to § 316 of IPC, 1860 “Whoever does any act under such circumstances, that if
he thereby caused death he would be guilty of culpable homicide, and does by such act cause
the death of a quick unborn child, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.” There for proving
the accused guilty under this §, the elements for this § have to be fulfilled. On a similar note
in Abdullah Qureshi & Anr v. State of Bihar19, it was stated by the Court that
“§ 316 Penal Code, 1860 postulates a situation where accused must do an act or omission
that if the accused has caused the death, he would have been guilty of culpable homicide and
secondly his act entailed the death of quick unborn child.”
[4.1] The act done by the accused to the victim Alexa Hemsworth amounted to Culpable
Homicide
¶2 It is humbly submitted before the honourable Court that the accused had done the act
which comes under the purview of culpable homicide. It was stated in the case of Jabbar
vState of Allahabad20, that unless the act is done against the mother with an intention or with
a knowledge which brings it within the purview of § 299 21, it cannot constitute an offence
19
Abdullah Qureshi & Anr v. State of Bihar, S.C.C. OnLine 746 (Pat. 2017).
20
Jabbar v State of Allahabad, Cri.L.J. 1363 (1966).
21
-26-
under this § merely because the death of a quick unborn child has resulted from an act
against the mother. Therefore, it is necessary for the act done by the accused to be proved
that it falls under the category of culpable homicide.
[4.2] That the accused had the intention to cause death of the victim
¶3 For the offence to fall under the category of culpable homicide, it is necessary to prove
the motive or intent of the accused to cause death of the victim. According to facts of the
case, accused had developed strained relationship with his wife (victim), he had assaulted her
once22, and he asked her to abort their child which was refused by the latter. He even asked
victim to leave her job which the victim refused. This refusal was not taken in good taste by
the accused and he accused her of having an affair and alleged that the child was illegitimate
and probably the father was Rajesh23. As earlier he was accused of having relationship with
Suneet Gujral. This all made the victim leave her home and later she was offered help by the
Gujrals who were the victim’s friends24 This made the accused more agitated and he tried to
coax 25 her return which was refused by the victim. The accused had later tried to set a
meeting with the victim with the excuse that his parents wanted to meet her and to resolve
the matter. On that meeting, his parents were not present and later he tried to nearly force
victim to stay.26
¶4 These circumstances indicate that the accused was angry with the victim who was
refusing his advances every time. He was earlier confronted with the accusation of having an
affair with Suneet Gujral and now he believed that his wife cheated on him as she was having
a relationship with Rajesh and that the child she was carrying was not his and he could not
father someone else’s child. He not only felt cheated and angry but also agitated with this
thought. His self respect, his male ego was hurt. He felt he had been made a fool of himself.
Even when he called her for meeting to resolve the issue, she came with Rajesh; this made
22
Moot Proposition ¶ 7.
23
Moot Proposition¶8.
24
25
Ibid
26
Moot Proposition¶10.
-27-
the accused more aggressive as his wife was still with someone else. The fact that his parents
were not present indicates this was a plan to do something ill because at the end he nearly
forced her to stay and this was done as he wanted to put an end to the defiance he was facing
from his wife.
[4.3] It is submitted that the accused had the knowledge that the act done by him was
likely to cause death of the victim.
¶5 In Gour Gobindo Thakoor & another27, facts include that there one Gour Gobind struck
the deceased a blow which knocked him down and then he and others without inquiry as to
whether he was dead or not, in haste hung him up to a tree so as to make it appear that he
committed suicide. The accused were all convicted of hurt, but the High Court quashed the
proceedings and directed the accused to be retried on charges of
murder, culpable homicide not amounting to murder and hurt. Justice Seton-Karr had stated
that, “If, however, the deceased was not actually killed by the blow, but was killed by the
suspension, then Gour Gobindo himself, and also all the other Thakoors who took part in
hanging him up to the tree, would be clearly liable to a charge
of culpable homicide amounting to murder; for, without having ascertained that he was
actually dead, and under the impression that he was only stunned, they must have done the
act with the intention of causing death, or bodily injury likely to cause death, and without the
exceptions provided by the law; or they might have been committed
for culpable homicide not amounting to murder.”
¶6 In Gopal Sakharam Jadhav v State of Maharashtra28, it was held by the Court that looking
at the manner in which the prosecution assaulted the deceased as given out by the two eye-
witnesses, it was evident that he had the knowledge of her death in terms of clause thirdly
of § 299, Penal Code, 1860. In another case of Anant Dagadu Bhalerao V State of
Maharashtra29, where the prosecution had inflicted a solitary blow from the blunt side of the
pharshi to the victim, it was held that that when the accused inflicted the blow, he had
27
Gour Gobindo Thakoor and another, 6 W.R. (Cr. R.) 55. (1866).
28
Gopal Sakharam Jadhav v State of Maharashtra, 1 M.H.L.J. 242 (2000).
29
Anant Dagadu Bhalerao v. State of Maharashtra, 3 M.H.L.J. 518 (1999).
-28-
the knowledge that it was likely to cause the death of the deceased. Therefore, the case was
held to fall within clause thirdly of § 299, Penal Code, 1860.
¶7 In the present case, there can be two possibilities of what might had happened at the
incident of crime. First, the accused had tried to resolve but it resulted in vain and filled with
the anger, he assaulted her and when she became unconscious, then he hung her up on the
ceiling fan to kill her but at the same time to make it appear like a case of suicide in order to
avoid suspicion. Second thing which might have occurred would be that he gave her some
liquid mixed in tea which caused the victim to faint. He then assaulted her to take out his
anger and then he hung her up on the ceiling fan to kill her but at the same time to make it
look like a suicide to avoid suspicion. The act of hanging is enough to cause the death of any
person. So, the accused had this knowledge that by this act the death of the victim was likely
to occur. Hence this is a case of culpable homicide. He had the intention to kill her as well as
did an act of which the accused had knowledge as likely to cause her death. Therefore, this
case falls under the category of culpable homicide.
¶8 Moreover, the death of the victim cannot be claimed to be a suicide because the victim’s
left-hand wrist was fractured and there was a little abrasion on her right cheek which
indicates there must have been a foul play. Committing suicide by hanging with one wrist
fractured is practically not possible. The suicide was staged by the accused after beating the
victim and that is the reason of injuries on her body which is indicated by the Post Mortem
Report. The timing of death, the place of death being the house of the accused puts him in
suspicious position.
[4.4] Death of Quick Unborn child had occurred by the act of Accused
¶9 In the case of Mohammad Nizamuddin V State of Bihar30, the accused had strangulated
the victim, it was observed by the Court that “the deceased was carrying a pregnancy of
about 7 to 5 months and the postmortem report also shows that baby died due to asphyxia as
a result of strangulation.” Thus, the accused was held liable under § 316 of the Penal
30
Mohammad Nizamuddin v. State of Bihar, 2 B.L.J.R. 928 (1995).
-29-
Code, 1860. In Jenjiskhan v. State31, the accused has attacked the victim by using canvas
shoe and due to his overtacts; the deceased Sahar Banu had passed away along with
her unborn baby but no separate charge was framed with regard to death of unborn female
baby. So it was observed by the Court that “the entire approach made by the trial Court is
totally erroneous and therefore for framing a new charge with
regard to death of unborn female baby, the entire convictions and sentences passed by the
trial Court are liable to be set aside and the matter is liable to be remitted to the file of the
trial Court.” Thus, the death of the child needs to occur by the act done by the accused to the
mother of child in order to establish offence under this section.
¶10 The child whose death has occurred needs to be in the foetus stage as for the act to fall
under this category. A husband striking his wife dead was held guilty of the offence under
this § because the medical evidence showed that she was carrying a male child of 20 Weeks.
A Foetus gets life after 12 weeks of conception.32 In Shivaji Harishchandra Kunte v
State of Maharashtra33, the deceased was pregnant with six months old child, who had also
died as result of death of the mother. Therefore, the accused was convicted under
§ 316 of IPC. In Pawan Paswan v. State of Jharkhand34, the deceased had died along with 5-
month-old fetus due to asphyxia as a result of throttling, there the accused was held liable
under § 316 of IPC.
¶11 In the present case death of the quick unborn child had taken place by the act done to the
child’s mother by the accused, the act which amounted to culpable homicide as the accused
had intention as well as knowledge. Moreover, the foetus was found to be of 22 weeks old by
the Post Mortem Report, and it had also died due to asphyxia because of the act which was
done to the mother Alexa Hemsworth. Hence, the cognizance under § 316 is attracted.
31
Jenjiskhan v. State, S.C.C. OnLine 147 (Mad. 2015).
32
Murugan v. State of T.N. Cr.L.J. 1680(Mad. 1991).
33
Shivaji Harishchandra Kunte v State of Maharashtra, S.C.C. OnLine 9547 (Bom . 2017).
34
Pawan Paswan v. State of Jharkhand, S.C.C. OnLine 1661 (Jhar. 2017).
-30-
V. THAT THE ACCUSED CAN BE CHARGED AND TRIED UNDER § 302 OF IPC
WHICH PRESCRIBES PUNISHMENT FOR MURDER
¶1Section 302 35 of IPC prescribes “punishment for Murder” and Murder is defined under
section 300 of IPC. Therefore, for charging the accused under section 302, first ingredients of
section 30036 have to be fulfilled. According to section 300 “culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing death, or if the
person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death, or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or such injury as aforesaid.” In
other words there should be existence of mens rea and it must co-incide with the act which
caused actus reus. 37 Therefore these elements are to be proved to exist on the part of the
accused in order to bring a charge against him. The Prosecution humbly contends that both,
the mens rea and the actus reus of the crime are established in the instant matter
[5.1] Mens rea of murder is established.
¶2Mens rea is considered as guilty intention38, which is proved or inferred from the acts of the
accused.39 It is submitted that the intention to kill is established and absence of motive would
not be a sufficient ground to dismiss the case.
[5.2] The Accused had the intention to kill
¶3 It is presumed that every sane person intends the result that his action normally produces
and if a person hits another on a vulnerable part of the body, and death occurs as a result, the
intention of the accused can be no other than to take the life of the victim and the offence
committed amounts to murder.40 Moreover, the intention to kill is not required in every case,
mere knowledge that natural and probable consequences of an act would be death will suffice
35
36
37
Jakeman Cri.L.R. 104 (1983).
38
Commissioner of Income Tax v Patranu Dass Raja Ram Beri, A.I.R. 14 (PH. 1982).
39
State of Maharashtra v Meyer Hans George, A.I.R. 722 (1965).
40
3 Pepsu. L.R. 635 (1951).
-31-
for a conviction under s. 302 of IPC.41 The intention to kill can be inferred from the murder
and nature of the injuries caused to the victim.42 Causing a serious injury on a vital part of the
body of the deceased with a dangerous weapon must necessarily lead to the inference that the
accused intended to cause death or bodily injury sufficient to cause death of the victim, and it
answers to section 300 and is murder.43
[5.3] Absence of motive is irrelevant
¶4 It is further pertinent to note that if there is motive in doing an act, then the adequacy of
that motive is not in all cases necessary. Heinous offences have been committed for very
slight motive. 44 Assuming for the sake of argument that the accused had no motive, it is
humbly contended that absence of motive is no ground for dismissing the case. Motive is
immaterial so far as the offence is concerned, and need not be established 45 as the mere
existence of motive is by itself, not an incriminating circumstance and cannot take the place of
a proof. 46 Therefore, absence of proof of motive, does not break the link in the chain of
circumstances connecting the accused with the crime, nor militates against the prosecution
case and is not fatal as a matter of law. 47 When the circumstantial evidence on record is
sufficient to prove beyond any doubt to prove that it was the accused and no one else, who
intentionally caused the death of the accused then, motive of the crime need not be proved48,
as in the current case.
¶5 According to facts of the case, accused had developed strained relationship with his wife
(victim), he had assaulted her once49, and he asked her to abort their child which was refused
by the latter. He even asked victim to leave her job which the victim refused. This refusal was
not taken in good taste by the accused and he accused her of having an affair and alleged that
41
Santosh v. State of Madhya Pradesh, Cri. L.J. 602 (1975).
42
Laxman v. State of Maharashtra, A.I.R. 1803 (1974).
43
Md. Idrish v. State, Cr. L.J. 1724 (Raj. 2004); Md. Sharif And Anr. v. Rex, A.I.R. 380 (All. 1950); Badri v. State
of U.P., A.I.R. 189 (All. 1953).
44
State v Dinakar Bandu 72 Bom. L.R. 905 (1969).
45
Ratanlal and Dhirajlal, The Indian Penal Code, (33rd Ed. 2011).
46
State of Punjab v Sucha Singh, A.I.R. 1471 (2003).
47
Mulakh Raj v. Satish Kumar, A.I.R. 1175 (1992).
48
State of Madhya Pradesh v. Digvijay Singh, Cri. L.J. 1278 (1981).
49
Moot Proposition ¶7.
-32-
the child was illegitimate and probably the father was Rajesh50. As earlier he was accused of
having relationship with Suneet Gujral. This all made the victim leave her home and later she
was offered help by the Gujrals who were the victim’s friends51. This made the accused more
agitated and he tried to coax52 her return which was refused by the victim. The accused had
later tried to set a meeting with the victim with the excuse that his parents wanted to meet her
and to resolve the matter. On that meeting, his parents were not present and later he tried to
nearly force victim to stay.53
¶6These circumstances indicate that the accused was angry with the victim who was refusing
his advances every time. He was earlier confronted with the accusation of having an affair
with Suneet Gujral and now he believed that his wife cheated on him as she was having a
relationship with Rajesh and that the child she was carrying was not his and he could not
father someone else’s child. He not only felt cheated and angry but also agitated with this
thought. His self respect, his male ego was hurt. He felt he had been made a fool of himself.
Even when he called her for meeting to resolve the issue, she came with Rajesh; this made the
accused more aggressive as his wife was still with someone else. The fact that his parents
were not present indicates this was a plan to do something ill because at the end he nearly
forced her to stay and this was done as he wanted to put an end to the defiance he was facing
from his wife. He had the motive as well as the intention to cause her death. His actions were
governed by the intention to kill her therefore the accused had the required mens rea to cause
her death.
[5.4] Actus Reus is established on part of accused.
¶7Actus reus is any wrongful act 54 . Thus, in a case of murder, actus reus would be the
physical conduct of the accused that causes death of the victim. In the instant case, the actus
reus is established.
50
51
52
Ibid
53
54
Aiyar and P Ramanatha, The Law Lexicon, 49 (2nd ed. 2006).
-33-
¶8In Gour Gobindo Thakoor & another55, facts include that there one Gour Gobind struck the
deceased a blow which knocked him down and then he and others without inquiry as to
whether he was dead or not, in haste hung him up to a tree so as to make it appear that he
committed suicide. The accused were all convicted of hurt, but the High Court quashed the
proceedings and directed the accused to be retried on charges of
murder, culpable homicide not amounting to murder and hurt. Justice Seton-Karr had stated
that, “If, however, the deceased was not actually killed by the blow, but was killed by the
suspension, then Gour Gobindo himself, and also all the other Thakoors who took part in
hanging him up to the tree, would be clearly liable to a charge
of culpable homicide amounting to murder; for, without having ascertained that he was
actually dead, and under the impression that he was only stunned, they must have done the act
with the intention of causing death, or bodily injury likely to cause death, and without the
exceptions provided by the law; or they might have been committed for culpable homicide not
amounting to murder.”
¶9In Mavjibhai Ramjibhai Taviyad v. State Of Gujarat56, it was observed by the Gujarat High
Court that the evidence of struggle may be there or may not be there, depending upon the facts
and circumstances of each case and the preceding conditions in committing of crime.
Therefore, merely because there is no injury and there are no struggling acts on part of the
deceased indicated, thereby alone it cannot be concluded that the nature of death was not
homicidal. By taking into consideration the above observation, it rules out suicide as a cause
of death.
¶10In the present case, there can be two possibilities of what might had happened at the
incident of crime. First, the accused had tried to resolve but it resulted in vain and filled with
the anger, he assaulted her and when she became unconscious, then he hung her up on the
ceiling fan to kill her but at the same time to make it appear like a case of suicide in order to
avoid suspicion. Second thing which might have occurred would be that he gave her some
liquid mixed in tea which caused the victim to faint. He then assaulted her to take out his
anger and then he hung her up on the ceiling fan to kill her but at the same time to make it
55
Gour Gobindo Thakoor and another, 6 W.R. (Cr. R.) 55 (1866).
56
Mavjibhai Ramjibhai Taviyad vs State Of Gujarat, CRIMINAL APPEAL NO.1156 of 2009.
-34-
look like a suicide to avoid suspicion. The act of hanging is enough to cause the death of any
person. So the accused had this knowledge that by this act the death of the victim was in all
probabilities to occur. Hence this is a case of Murder. He had the intention to kill her as well
as did an act which he knew was imminently dangerous that it must, in all probability, cause
her death, or such bodily injury as is likely to cause her death. Therefore this case falls under
the category of Murder.
¶11 According to the facts victim’s left hand wrist was fractured and there was a little
abrasion on her right cheek which indicates there must have been a foul play. Committing
suicide by hanging with one wrist fractured is practically not possible. The suicide was staged
by the accused after beating the victim and that is the reason of injuries on her body which is
indicated by the Post Mortem Report.There were injuries on the body to suggest resistance.
The timing of death, the place of death being the house of the accused puts him in suspicious
position.
¶12Therefore, it is humbly submitted before this Hon’ble Court that the accused is guilty for
the offence of murder, given that the requisite mens rea and actus reus is established from the
facts of the case, beyond a reasonable doubt.
-35-
PRAYER
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, this
Hon’ble Court may be pleased to adjudge and declare:
• That the evidence from Alexa devices is admissible in a Court of Law.
• That Evidence stolen from the crime scene is admissible in a Court of Law.
• That the accused Dr. Peter and Mr. Rajesh be subjected to Narco Analysis.
• That the accused Dr. Peter is guilty of committing the offence of “causing death of quick
unborn child by act amounting to culpable homicide” as mentioned under § 316 of the
IPC.
• That the accused can be charged and tried under § 302 of IPC which prescribes
punishment for murder.
AND/OR
Pass any other order that this Hon’ble Court may deem fit in the interests of justice, equity and
good conscience.
And for this the Prosecution, as is duty bound shall forever humbly pray.
(Counsel on behalf of the Prosecution)
-36-

Efore HE Ourt F Essions T Umbai Aharashtra: Able of Ontents

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Efore HE Ourt F Essions T Umbai Aharashtra: Able of Ontents

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TABLE OF CONTENTS

BEFORE THE COURT OF SESSIONS

STATE OF MAHARASHTRA .......................................................... PROSECUTION

DR. PETER HEMSWORTH. ........................................................ …DEFENCE

FOR OFFENCES CHARGED UNDER:

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

TABLE OF CONTENTS ....................................................................................................................... 2

LIST OF ABBREVIATIONS .................................................................................................................. 3

INDEX OF AUTHORITIES ................................................................................................................... 4

STATEMENT OF JURISDICTION .......................................................................................................... 7

STATEMENT OF FACTS ..................................................................................................................... 8

ARGUMENTS ADVANCED ............................................................................................................... 14

I. THAT THE EVIDENCE FROM ALEXA DEVICES IS ADMISSIBLE IN A COURT OF

IV. THAT THE ACCUSED PETER IS GUILTY OF COMMITTING THE OFFENCE OF

3. MHLJ- Maharashtra Law Journal

4. IPC-Indian Penal Code

5. CrPC-Criminal Procedure Code

8. LR- Law review

9. S.C.C. – Supreme Court Cases

10. In re-in matter of

11. SC- Supreme Court

12. SCR- Supreme Court Reporter

13. v.- Versus

14. &- And

17. Bom. - Bombay

18. All. - Allahabad

19. Pepsu- Patiala and east Punjab States Union

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, A.I.R. 1788 (1975)……….....16

S. Pratap Singh v. State of Punjab, 4 S.C.R. 733 (1964) ……………………………………….17

N. Sri Rama Reddy v. V. V. Giri, 1 S.C.R. 399 (1971).…………..…………………………….18

R. M. Malkani v. State of Maharashtra, 2 S.C.R. 417 (1973)………………………...………...18

Justice K.S. Puttaswamy v. Union of India, 10 S.C.C. 1 (2017)………………………………..18

Kuruma v. the Queen, A.C. 197 (1955)……………………………………………………….....19

Radha Kishan v. State of U.P, 1 S.C.R. Supl. 408 (1963)…………….…………………………21

Pooran Mal v. Director of Inspection, 2 S.C.R. 704 (1974)… ..................................................... 21

Kharak Singh v. State of UP, 1 S.C.R. 332 (1964). ...................................................................... 26

Gobind v. State of Madhya Pradesh, 3 S.C.R. 946 (1975). .......................................................... 26

Santokben Jadeja v. State of Gujarat, Cri.L.J. 68 (2008).............................................................. 27

Jabbar v State of Allahabad, Cri.L.J. 1363 (1966).………………………………………..……28

Gopal Sakharam Jadhav v State of Maharashtra, 1 M.H.L.J. 242 (2000)……………………….30

Anant Dagadu Bhalerao v. State of Maharashtra, 3 M.H.L.J. 518 (1999)………………………30

Mohammad Nizamuddin v. State of Bihar, 2 B.L.J.R. 928 (1995)……………………………...30

Jenjiskhan v. State, S.C.C. OnLine 147 (Mad. 2015)……………………………………………31

Murugan v. State of T.N. Cr.L.J. 1680(Mad. 1991) ………………………………………….....32

Pawan Paswan v. State of Jharkhand, S.C.C. OnLine 1661 (Jhar. 2017)……………………….32

Jakeman Cri.L.R. 104 (1983)……………………………………………………………………32

State of Maharashtra v Meyer Hans George, A.I.R. 722 (1965)………………………………...33

Santosh v. State of Madhya Pradesh, Cri. L.J. 602 (1975)………………………………………34

Laxman v. State of Maharashtra, A.I.R. 1803 (1974)……………………………………………34

State v Dinakar Bandu 72 Bom. L.R. 905 (1969)……………………………………………….34

State of Punjab v Sucha Singh, A.I.R. 1471 (2003)……………………………………………..34

Mulakh Raj v. Satish Kumar, A.I.R. 1175 (1992)……………………………………………….34

State of Madhya Pradesh v. Digvijay Singh, Cri. L.J. 1278 (1981)……………………………..34

Gour Gobindo Thakoor and another , 6 W.R. (Cr. R.) 55 (1866)……………………………….36

Mavjibhai Ramjibhai Taviyad vs State Of Gujarat, CRIMINAL APPEAL NO.1156 of 2009...36

INDIAN PENAL CODE , 1860

INDIAN EVIDENCE ACT, 1872

THE CODE OF CRIMINAL PROCEDURE, 1973

INFORMATION AND TECHNOLOGY ACT, 20008

THE CONSTITUTION OF INDIA

NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 19985

SECTION 26. COURTS BY WHICH OFFENCES ARE TRIABLE: