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 DEFENCE

 TABLE OF CONTENTS

TABLE OF CONTENTS

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

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

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

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

SUMMARY OF ARGUMENTS ........................................................................................................ 11

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

I. THAT THE EVIDENCE FROM ALEXA DEVICES MUST NOT BE ADMISSIBLE IN

A COURT OF LAW. ............................................................................................................ 14

II. THAT THE EVIDENCE STOLEN FROM THE CRIME SCENE SHOULD NOT BE
ADMISSIBLE IN A COURT OF LAW. ............................................................................... 17

III. THAT THE ACCUSED PETER SHOULD NOT BE SUBJECTED TO NARCO

ANALYSIS BUT THE PRIME SUSPECT MR. RAJESH GUJRAL SHOULD BE
SUBJECTED TO NARCO ANALYSIS. ............................................................................... 21

IV. THAT THE ACCUSED PETER CANNOT BE CHARGED FOR COMMITTING THE
OFFENCE OF “CAUSING DEATH OF QUICK UNBORN CHILD BY ACT AMOUNTING
TO CULPABLE HOMICIDE” AS MENTIONED UNDER § 316 OF THE IPC. ................. 24

V. THAT THE ACCUSED CANNOT BE CHARGED AND TRIED UNDER § 302 OF

IPC WHICH PRESCRIBES PUNISHMENT FOR MURDER. ............................................. 28

PRAYER ..................................................................................................................................... 36

2
 STATEMENT OF FACTS

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. SCC – 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

3
 STATEMENT OF FACTS

INDEX OF AUTHORITIES

CASES

Anand Ramachandra Chougule vs Sidarai Laxman Chougala, 8 S.C.C. 50, 52 (2019)…………11

Sangaraboina Sreenu v. State of AP, 5 S.C.C. 348, 349 (1997)…………………………………13

K.S. Puttaswamy v. Union of India, 10 S.C.C. 1, 17 (2017)…………………………………….15

Rayala M. Bhuvaneswari v. Nagaphanender Rayala, S.C.C. OnLine 892 (AP:2007)…………..15

State of Punjab v. Baldev Singh, 6 S.C.C. 172,179 (1999)……………………………………16

Zahira Habibullah Sheikh & Anr vs State Of Gujarat, 3 S.C.C. 374, 378 (2006)………………16

Ramchandra Ram Reddy v. State of Maharashtra, All. M.R. (Cri.) 1704, 1705 (2004)………..21

Selvi v. State of Karnataka, 7 S.C.C. 263, 265(2010)………………………………………….22

Abdullah Quereshi & Anr v. State of Bihar, S.C.C. OnLine 746, 748 (Pat:2017)……………24

Anand Ramachandra Chougule v. Sidarai Laxman Chougala, 8 S.C.C. 50, 55 (2019)……….24

Sunil Kundu v. State of Jharkhand, 4 S.C.C. 422,426 (2013)………………………………….25

Partap v. State of U.P., 2 S.C.C. 798, 800 (1976)……………………………………………….25

Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444, 446 (2014)………………………25

Jabbar v. State, S.C.C. OnLine 337 (All:1965)………………………………………………...25

Satpal v. State of Haryana, 6 S.C.C. 610, 612 (2018)…………………………………………...26

Umedbhai v. State of Gujarat, A.I.R. 424, 427 (1978)………………………………………….26

State of UP v. Ravindra Prakash Mitta, A.I.R. 2045, 2048 (1992)………………………………27

Mustkeem v. State of Rajasthan, A.I.R. 2769, 2771 (2011)…………………………………….27

4
 STATEMENT OF FACTS

Suresh Chandra Bahri v. State of Bihar, Supp (1) SCC 80, 85 (1995)………………………….27

Vide Pannayar v. State of T.N., 9 S.C.C. 152, 153 (2009)………………………………………27

State of U.P. v. Kishanpal, 16 S.C.C. 73,75 (2008)……………………………………………...27

Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444,446 (2014)……………………….28

Sangaraboina Sreenu v. State of AP, 4 S.C.C. 214,216 (1997)………………………………….29

Jatinder Kumar v. State (Delhi Admn.), CRI .L.J. 1482,1484 (1992)…………………………..29

Santosh Kudtarkar v. State, S.C.C. OnLine 2300, 2304 (Bom:2016)………………………….30

Anand Ramachandra Chougule v. Sidarai Laxman Chougala, 8 S.C.C. 50, 55 (2019)………..31

Partap v. State of U.P., 2 S.C.C. 798, 800 (1976)………………………………………………31

Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444,446 (2014)……………………….31

Satpal v. state of Haryana, 6 S.C.C. 610, 612 (2018)……………………………………………32

Umedbhai v. State of Gujarat, A.I.R. 424, 427 (1978)………………………………………….32

State of UP v. Ravindra Prakash Mittal, A.I.R. 2045, 2047 (1992)……………………………..33

Mustkeem v. State of Rajasthan, A.I.R. 2769, 2771 (2011)…………………………………….33

Suresh Chandra Bahri v. State of Bihar, Supp (1) S.C.C. 80, 82 (1995)………………………...33

Vide Pannayar v. State of T.N, 9 S.C.C. 152, 155 (2009)………………………………………33

State of U.P. v. Kishanpal, 16 S.C.C. 73, 75 (2008)……………………………………………..33

Union of India v. Prafulla Kumar, S.C.C. 609, 611 (1979)……………………………………...34

P. Vijayan v. State of Kerala, A.I.R. 663, 665 (2010)…………………………………………..34

Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444,446 (2014)……………………….35
5
 STATEMENT OF FACTS

Yogesh v. State of Maharashtra, 1 S.C.C. (Cri) 51, 53 (2009)………………………………….35

Seriyal Udayar v. State of Tamil Nadu, 2 S.C.C. 359,361 (1987)………………………………35

Sreenu v State of AP, 4 S.C.C. 214, 216 (1997)…………………………………………………36

Jatinder Kumar v. State (Delhi Admn.), CRI.L.J. 1482, 1484 (1992)…………………………...36

Santosh Kudtarkar v. State, S.C.C. OnLine 2300,2302 (Bom:2016)……………………………36

P. Vijayan v. State of Kerala, A.I.R. 663, 665 (2010)…………………………………………...37

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

6
 STATEMENT OF FACTS

STATEMENT OF JURISDICTION

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) ……………………………..

7
 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

8
 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.

9
 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?

10
 SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS
I. THAT THE EVIDENCE FROM ALEXA DEVICES MUST NOT BE ADMISSIBLE
IN A COURT OF LAW.

It is humbly submitted before the Hon’ble Court that Alexa devices are not legally authorized
or consented for the purposes of recording of conversations in its regular course and thus
should not be admissible as Electronic evidence to extort private conversations from it.
II. THAT THE EVIDENCE STOLEN FROM THE CRIME SCENE SHOULD NOT BE
ADMISSIBLE IN A COURT OF LAW.

It is humbly submitted before the Court that an evidence which was not only stolen by an IT
Expert Mr. Gujral but he was also a good family friend of Peters.
Thus such evidence which leaves an ambit for doubt and dubiousness should not be considered
as admissible because they would become torment full for the innocent who now due to
admission of such.
III. THAT THE ACCUSED PETER SHOULD NOT BE SUBJECTED TO NARCO
ANALYSIS BUT THE PRIME SUSPECT MR. RAJESH GUJRAL SHOULD BE
SUBJECTED TO NARCO ANALYSIS.

It is humbly submitted before the court that the only reason for my client Dr. Peter to submit
his consent to under Narco analysis is that the Court should have a test done on Mr. Gujral as
well, my client has nothing to hide and wants the real criminal to be punished who has so
brutally murdered his beloved wife.The Counsel would like to humbly request that the Court
to consider humanity and allow Mr. Peter to not undergo Narco test under the present
conditions when he has just lost his wife and child. It is alleged violation of the Right Against
Self-incrimination guaranteed under Article 20(3)1 of the Indian Constitution, it is reiterated
that imposing Narco analysis on the accused without his consent would be a blatant violation
of Article 20(3).

1
Indian Const. art. 20(3).
11
 SUMMARY OF ARGUMENTS
IV. THAT THE ACCUSED PETER CANNOT BE CHARGED FOR COMMITTING THE
OFFENCE OF “CAUSING DEATH OF QUICK UNBORN CHILD BY ACT
AMOUNTING TO CULPABLE HOMICIDE” AS MENTIONED UNDER § 316 OF IPC.

¶1 The Prosecution has not been able to prove that the accused committed the offence
beyond reasonable doubt and with requisite mens rea.

It is submitted that in the case of Anand Ramachandra Chougule vs Sidarai Laxman Chougala 2, it
was held by the Supreme Court that, “The burden lies on the prosecution to prove the allegations
beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a
doubt about the prosecution case and the probability of its defence. An accused is not required to
establish or prove his defence beyond all reasonable doubt, unlike the prosecution. There are
discrepancies in the submissions of the prosecution; various gaps can be found in the prosecution
theory which is not explained.

¶2 It is impermissible to charge the accused with two distinct offences

The prosecution is not able to decide which charges to press and in doing so it is causing
unnecessary harm to the defendant and violating his right to the fair trial. The prosecution is also
violating the rule of law by going against the judgement of Supreme Court according to which
both the offences of §306 and 3023 are different and it is impermissible to charge the accused with
both the charges §2214 of the CrPC does not allow so. The facts are in doubt.The only reason for
my client Dr. Peter to submit his consent to under Narco analysis is that the Court should have a
test done on Mr. Gujral as well, my client has nothing to hide and wants the real criminal to be
punished who has so brutally murdered his beloved wife.The Counsel would like to humbly
request that the Court to consider humanity and allow Mr. Peter to not undergo Narco test under
the present conditions when he has just lost his wife and child.

2
Anand Ramachandra Chougule vs Sidarai Laxman Chougala, 8 S.C.C. 50, 52 (2019).
3
Indian Penal Code § 306.302.221 (1860).
4
The Code of Criminal Procedure §221 (1973).
12
 SUMMARY OF ARGUMENTS
V. THE ACCUSED CANNOT BE CHARGED AND TRIED UNDER § 302 OF IPC WHICH
PRESCRIBES PUNISHMENT FOR MURDER.

¶1 The Prosecution has not been able to prove that the accused commited the offence
beyond reasonable doubt and with requisite mens rea.

§ 3025 of IPC prescribes “punishment for Murder” and Murder is defined under § 300 of IPC.
Therefore, for charging the accused under § 302, first ingredients of § 3006 have to be fulfilled.
According to § 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.” However, the prosecution has failed to show the presence of intention
as well as the action done on part of accused which are two necessary conditions required to under
this section in order to bring charge against the defendant.

¶2 It is impermissible to charge the accused with two distinct offences

It is submitted that the prosecution had charged the defendant with the “Abatement of suicide”
mentioned under § 306 0f IPC and with “causing death of a quick unborn child by an act amounting
to culpable homicide” under § 316 and now is charging him under § 302 which prescribes the
“punishment for murder”. However, in doing so the prosecution had violated the rulings of the
Honourable Supreme Court. It was observed by the Supreme Court in the case of Sangaraboina
Sreenu v State of Andhra Pradesh, 7that the offence under 306 and 302 are of different and distinct
categories. While the basis constituent of an offence under § 302 IPC is homicidal death those of
§ 3068 IPC are suicidal death and abetment thereof.”

5
Indian Penal Code § 302 (1860).
6
Indian Penal Code § 300 (1860).
7
Sangaraboina Sreenu v. State of AP, 5 S.C.C. 348, 349 (1997).
8
Indian Penal Code § 306 (1860).
13
 ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

I. THAT THE EVIDENCE FROM ALEXA DEVICES MUST NOT BE ADMISSIBLE IN A

COURT OF LAW.

¶1 § 2(t)9 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.
This prima facie suggests that the function of these devices, for which they are purchased by
consumers and sold in the market, is not as a tape recorder. Thus recording of conversations is
neither a normal activity of such a device nor a function for which it is invented, which not only
suggests that it might make mistakes in something an electronic device is not meant for but also
is infringing the privacy as it was never disclosed by the company if these devices record
conversations as well.

[1.1] INDIAN EVIDENCE ACT, 1872

¶2 Coming to the very document meant for the purposes of dealing with the admissibility,
adducing evidence in the Indian Courts i.e. The Indian Evidence Act, 1872, it clearly states that
§ 65B (2)(a)10 states that,
‘The computer output containing the information was produced by the computer during the
period over which the computer was used regularly to store or process information for the

9
Information Technology Act §2(t) (2008).
10
Indian Evidence Act §65(B) (1872).
14
 ARGUMENTS ADVANCED
purposes of any activities regularly carried on over that period by the person having lawful
control over the use of the computer.’
On the face, this means that the computer in which the information is stored should be one in
which such information is stored regularly and such activities are regularly carried out which is
not what has happened in the case at hand, never was the Alexa Mini music player used for the
purposes of storing information and neither was the task of this Mini music player to record
conversations as its regular activity.
And secondly it is stated that such activity should only be carried by the person having lawful
control over the use of such computer.
Here not only was the Alexa Mini Music player taken out of the possession of the person having
lawful control over it i.e. Mr. Peter Hemsworth but for 24 hours was with a person who stole it
i.e. Mr. Rajesh Gujral, and the counsel would like to put some light upon the skills of Mr. Gujral
other than stealing that he was not an IT expert but an ‘IT Wizard’ who could not only hack into
a computer but also into home systems remotely and take control of them, thus making him the
best suited person to not only access but also exploit such devices.

[1.2] VIOLATION OF A FUNDAMENTAL RIGHT

¶3 Right to Privacy11 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 India12 in 2007 held that privacy is a right protected by the
Constitution.
Rayala M. Bhuvaneswari v. Nagaphanender Rayala 13 in which a single Judge of the Andhra
Pradesh High Court has held that the act of phone tapping by the husband is illegal and
infringed the wife's right to privacy.

11
Indian const. art. 21.
12
K.S. Puttaswamy v. Union of India, 10 S.C.C. 1, 17 (2017).
13
Rayala M. Bhuvaneswari v. Nagaphanender Rayala, S.C.C. OnLine 892 (AP:2007).
15
 ARGUMENTS ADVANCED
State of Punjab vs. Baldev Singh 14 in which, while dealing with §50 15 of The Narcotic Drugs
and Psychotropic Substances Act 1985, a 5-Judge Constitution Bench of the Supreme Court
has held that while considering the aspect of fair trial, the nature of the evidence obtained and
the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of
evidence against an accused where the court is satisfied that the evidence had been obtained by
conduct of which the prosecution ought not to take advantage, particularly when that conduct
causes prejudice to the accused.

[1.3] RIGHT TO FAIR TRIAL

¶4 The Apex Court has reiterated in and through every judgement that Right to a fair trial
outweighs any other right or any other privileges of any citizen in India.
Under our Constitution as also the international treaties and conventions, the right to get a fair trial
is a basic fundamental/human right. He has a right to defend himself as a part of his human as also
fundamental right as enshrined under Article 21 of the Constitution of India.
The Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat
16
has held that, “the principle of fair trial now informs and energizes many areas of the law. It is
reflected in numerous rules and practices.... fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in
which bias or prejudice for or against the accused, the witnesses, or the cause which is being
tried is eliminated.”
The case at hand is transparent enough to show that the accused is being framed for the guilty act
of someone else, the Alexa mini music player is a device kept at the bedside in the bedroom of the
accused and the deceased which is not only a private space but any device kept in a bedroom is
also considered a private gadget and thus prima facie should not be admissible in the Court as it
infringes the very Privacy of the accused.

14
State of Punjab v. Baldev Singh, 6 S.C.C. 172,179 (1999).
15
NDPS Act § 50 (1985).
16
Zahira Habibullah Sheikh & Anr vs State Of Gujarat, 3 S.C.C. 374, 378 (2006).
16
 ARGUMENTS ADVANCED
[1.4] BACK TO THE CASE AT HAND

¶5 The Alexa Mini Music Player is neither sold nor bought for the purposes of recording
conversations, hence recording of private conversations is not the regular task of this device hence
it violates the qualification for admissibility of evidence under § 65(B) of the Indian Evidence
Act.
Secondly, it is not in the possession of the lawful owner of the device when it will be acquired for
investigation by the police which increases the probability of tampering of the Evidence.
Mr. Rajesh Gujral, an IT wizard who can remotely access home systems is the one who took away
the Alexa from the crime scene and the Courts should take into consideration the very fact that he
is a person competent enough to access and fudge with any information stored on this device.
The counsel would also like to shed some light on the fact that it is very much possible that this
device has been accessed remotely by Mr. Gujral at the time when the crime took place and would
have heard some private conversations of which might have placed the name of Mr. Gujral in dark
light and may have brought him to the place where my client is standing at the moment, might be
Mr. Gujral took away the device to delete some such convicting conversations which might have
put his name in question.

¶6 Thus taking into considerations, such mishaps that have taken place with the evidence in
question i.e. the Alexa Mini Music Player, the Court should not admit such evidences which have
been in the hands of multiple people,has been stolen from the crime scene by an expert of the said
device and hence cannot be proved to be genuine and honest beyond reasonable doubt.

II. THAT THE EVIDENCE STOLEN FROM THE CRIME SCENE SHOULD NOT BE
ADMISSIBLE IN A COURT OF LAW.

¶1 Any Evidence stolen from the crime scene should not be admissible as it loses its relevancy
the very moment it is taken away from the crime scene by someone else other than the competent

17
 ARGUMENTS ADVANCED
authorities which is more likely in cases with Electronic evidence which can be easily tampered
with.

[2.1] The term ‘Stolen Evidence’

¶2 §37917 of The Indian Penal Code lays down the punishment for theft with imprisonment
of either description for a term which may extend to three years, or with fine, or with both.
This means that stealing or committing theft is a crime punishable under IPC, thus how can
something acquired from a criminal who has committed theft be admissible in the Courts of Law
to provide unbiased and fair trial to the innocent.
This increases the probability of the evidence to be false or not fair and genuine thus framing an
innocent for a crime not committed by him.

[2.2] Why should the stolen evidence be not admitted in this case

¶3 Even where evidence is admissible, it should be excluded in certain circumstances and

such exclusion should be based upon the way the evidence has been obtained.
As in where the evidence is obtained illegally, improperly or unfairly should not be considered as
genuine, fair or leaves even a bit of scope for ambiguity should not be given the slightest chance
to be admitted in Courts.

¶4 On the case at hand, the evidence was prima facie stolen from the crime scene which
alone makes it enough to not be proved as relevant evidence and cannot be proved to be genuine
beyond reasonable doubt. And the chances of the Alexa Mini Music Player to have been
compromised in some way are very likely as the person who stole it is an IT wizard and thus an
expert of such devices.
Also the Court should consider the fact that Mr. Gujral has been friends with the family of the
accused which makes it even more probable for him to have some ulterior motives for such theft,

17
Indian Penal Code §379 (1860).
18
 ARGUMENTS ADVANCED
any random passerby who would have committed theft would not have any such ulterior
motives.
The counsel for the defendant requests the Court to take into consideration Blackstone’s ratio in
this particular case, ratio being;
“It is better that ten guilty persons escape than that one innocent suffer.” 18

This should be considered as the evidence in question leaves a lot of scope for ambiguity and
dubiety.

[2.3] ‘Electronic evidence’ stolen from the crime scene should be rendered inadmissible

¶5 The leaps and bounds we are making towards the advancement of technology has sure
has its boons but the disadvantages are much greater and are still unaccounted for.
With all the advantages and the ease of doing work, we also have compromised with our security
and privacy, the advancement has also led to easy hacking of devices and thus given access of
our private data to outsiders which can even be published easily.
Thus, there not being a law on admissibility was fine in the times when technology was not so
advanced to gain access to our personal data without our knowledge and was not so advanced as
to edit, delete or in any way tamper with it. Daily there are cases of fake news, morphed images
and edited videos which are circulated for ulterior motives.
Mr. Gujral is also an IT wizard and thus any electronic gadget in his hands is not secure at all, he
can not only hack gadgets with him but also remotely access home systems and control them,
thus deducing the circumstances from the known-established facts, this particular piece of
electronic evidence i.e. Alexa Mini Music Player should not be admitted by the Court.

[2.4] Ulterior Motives

18
J.B. Lippincott, Commentaries on Laws of England (Philadephia,1893).
19
 ARGUMENTS ADVANCED
¶6 The very fact that Mr. Gujral, a dear friend is the theif in the case is alone enough to
render the electronic evidence inadmissible.
He not only had the opportunity but may also have had hidden motives as there were wide spread
rumours that the accused(Dr. Peter) have had illicit relations with Mrs. Suneet Gujral, wife of
Mr. Rajesh Gujral. And the accused also defamed Mr. Gujral as he claimed him to be the father
of the child in Alexa’s womb.
This might have strained the relations between Mr. and Mrs. Gujral to which Rajesh would have
become frustrated and would have though of destroying my client completely by framing him for
his own crimes.
There was intent, there is surplus of circumstantial evidence as not only did he steal the device
which would have had recorded conversations but also did commit trespass in a way which
inexplicable and yet is unknown and to further strengthen the same, Mr. Gujral also denied to fo
through the Narco test which is clearly the simplest option for him to be proved innocent.

[2.5] The admissibility of the evidence in question is illegal

¶7 The Hon’ble Court cannot allow the evidence to be admitted as it is violating the
conditions necessary admissibility of electronic evidence as stated under § 65B(2)c19 which
clearly requires the computer to be in properly operating conditions throughout the material part
of the said period.
Mr. Rajesh Gujral did confess that he is the one who stole the Alexa Mini Music Player but he
did not disclose yet that when was this done by him, Mr. Gujral was present in the house of my
client the day before the crime took place as well i.e. 11th of May,2020.
It is very likely that Mr. Gujral took away the electronic gadget away in the night only as he
knew that when he commits his dirty deeds in the morning, the suicidal player will record the
conversations and he will not be able to frame my client for his mala fide deeds, hence he took
away the mini music player the night before and in the morning committed trespass, entered the

19
Indian Evidence Act §65B(2)c (1872).
20
 ARGUMENTS ADVANCED
house and then when he could arrange the murder to look like suicide, he called up my client and
fabricated the story of how Alexa is not opening the door.

¶7 The counsel would request the Hon’ble Court to take into consideration all the possibilities
before giving the judgement which might punish an innocent and thus for furthering the right to
fair and just trial would plead that the Court reopens investigation in the case.

III. THAT THE ACCUSED PETER SHOULD NOT BE SUBJECTED TO NARCO

ANALYSIS BUT THE PRIME SUSPECT MR. RAJESH GUJRAL SHOULD BE
SUBJECTED TO NARCO ANALYSIS.

¶1 The only reason for my client Dr. Peter to submit his consent to under Narco analysis is
that the Court should have a test done on Mr. Gujral as well, my client has nothing to hide and
wants the real criminal to be punished who has so brutally murdered his beloved wife.

The Counsel would like to humbly request that the Court to consider humanity and allow Mr. Peter
to not undergo Narco test under the present conditions when he has just lost his wife and child.

One of the biggest legal controversies, which surround narco analysis, is its alleged
violation of the Right Against Self-incrimination guaranteed under Article 20(3) of the Indian
Constitution.

The Bombay High Court, in a significant verdict in Ramchandra Ram

20
Reddy v. State of Maharashtra , upheld the legality of the use of P300 or brain-
mapping and narco-analysis test. The Court also said that evidence procured under the
effect of narco-analysis test is also admissible. As crimes going hi-tech and criminals
becoming professionals, the use of narco-analysis can be very useful, as the conscious mind

20
Ramchandra Ram Reddy v. State of Maharashtra, All. M.R. (Cri.) 1704, 1705 (2004).
21
 ARGUMENTS ADVANCED
does not speak out the truth, unconscious may reveal vital information about a case of Narco-
Analysis in Criminal Investigation. The judgment also held that these tests involve minimal
bodily harm. Surender Koli, main accused in the Nithari case, was brought to Forensic
Science Laboratory in Gandhinagar in January 2007 for narco-analysis. Polygraph test was
conducted on Moninder Singh Pandher and his servant Surender Koli, accused of serial
killing of women and children in Nithari, to ascertain the veracity of their statements made
during their custodial interrogation. Various confessional statements were made by the
accused under the effect of the drug, he could remember the names of the females he had
murdered and revealed his urge to rape them after murdering them.

¶2 In Selvi v. State of Karnataka 21, the Supreme Court rejected the High Courts' reliance
on the supposed utility, reliability and validity of narco-analysis and other tests as
methods of criminal investigation. First, the Court found that forcing a subject to
undergo narco-analysis, brain-mapping, or polygraph tests itself amounted to the requisite
compulsion, regardless of the lack of physical harm done to administer the test or the
nature of the answers given during the tests. Of Secondly, the Court found that “since the
answers given during the administration of the test are not consciously and voluntarily
given, and since an individual does not have the ability to decide whether or not to answer a
given question, the results from all three tests amount to the requisite compelled testimony to
violate Article 20(3).

¶3 The Supreme Court found that narco-analysis violated individuals' right to

privacy and amounted to cruel, inhuman or degrading treatment. Article 21 protects the right
to life and personal liberty, which has been broadly interpreted to include various substantive
due process protections, including the right to privacy and the right to be free from
torture and cruel, inhuman, or degrading treatment.

21
Selvi v. State of Karnataka, 7 S.C.C. 263, 265(2010).
22
 ARGUMENTS ADVANCED
The Supreme Court left open the possibility for abuse of such tests when it provided a narrow
exception, almost as an afterthought, namely, that information indirectly garnered from a
“voluntary administered test”—i.e. discovered with the help of information obtained from
such a test—can be admitted as evidence.

[3.1] Criticism of Narco Analysis

¶4 On the ground that it is not hundred percent accurate. It has been found that certain
subjects made totally false statements. It is often unsuccessful in eliciting truth as such it
should not be used to compare the statement already given to the police before use of drug. It
has been found that a person has given false information even after administration of drug. It
is not much help in case of malingers or evasive, untruthful person. It is very difficult to
suggest a correct dose of drug for a particular person. The dose of drug will differ according
to will power, mental attitude and physique of the subject. Successful narco-analysis test is
not dependent on injection.

For its success a competent and skilled interviewer is required who is trained in putting
recent and successful questions. Narco-analysis test is a restoration of memory which the
suspect had forgotten. This test result may be doubtful if the test is used for the
purposes of confession of crimes. Suspects of crimes may, under the influence of drugs,
deliberately withhold information or may give untrue account of incident persistently. Narco-
analysis is not recommended as an aid to criminal investigation. In medical uses
like in treatment of psychiatric disorder narco-analysis may be useful.

Coming to the case at hand, my client should not be subjected to Narco analysis as this is an
inhumane thing to do with a person who has just lost her wife and child but Mr. Rajesh Gujral
should be subjected to Narco Analysis test.

Being the prime suspect and the only person under dark light for stealing evidence from crime
scene, trespassing into my client’s flat and also to be the first person to see the deceased
hanging from the fan, it is very essential for him to undergo Narco analysis for the trial to be
fair and just and in order to make the Hon’ble Court take off the blindfold so that they do not
unknowingly punish the innocent.

23
 ARGUMENTS ADVANCED
IV. THAT THE ACCUSED PETER CANNOT BE CHARGED FOR COMMITTING THE
OFFENCE OF “CAUSING DEATH OF QUICK UNBORN CHILD BY ACT
AMOUNTING TO CULPABLE HOMICIDE” AS MENTIONED UNDER § 316 OF THE
IPC.

¶1 According to § 31622 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.” Therefore, for proving the
accused guilty under this section, the elements for this section have to be fulfilled. On a similar
note in Abdullah Quereshi&Anr v. State of Bihar 23
, 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.” However, in the present case, the prosecution has
failed to fulfill the above stated requirements of this section in order to bring charge against the
defendant.

[4.1] The Prosecution has not been able to prove that the accused committed the offence
beyond reasonable doubt and with requisite mens rea.

¶2 It is submitted that in the case of Anand Ramachandra Chougule vs Sidarai Laxman

Chougala24, it was held by the Supreme Court that, “The burden lies on the prosecution to prove
the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only
to create a doubt about the prosecution case and the probability of its defence. An accused is not
required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If
the accused takes a defence, which is not improbable and appears likely, there is material in support
of such defence, the accused is not required to prove anything further. The benefit of doubt must

22
Indian Penal Code §316 (1860).
23
Abdullah Quereshi & Anr v. State of Bihar, S.C.C. OnLine 746, 748 (Pat:2017).
24
Anand Ramachandra Chougule v. Sidarai Laxman Chougala, 8 S.C.C. 50, 55 (2019).
24
 ARGUMENTS ADVANCED
follow unless the prosecution is able to prove its case beyond all reasonable doubt.” In Sunil Kundu
v. State of Jharkhand25, it was observed by the Court, “When the prosecution is not able to prove
its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not
been able to probabilise their defence. It is well settled that the prosecution must stand or fall on
its own feet. It cannot draw support from the weakness of the case of the accused, if it has not
proved its case beyond reasonable doubt.”

¶3 It has been observed in Partap vs. State of U.P.26, that “…the distinction between the nature
of burden that rests on an accused under § 10527 of the Evidence Act to establish a plea of self-
defence and the one cast on the prosecution by § 10128 to prove its case. It is well settled that the
burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution
is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by
establishing a mere preponderance of probability.” In the case of Joydeb Patra &Ors vs State Of
West Bengal29, it was held that, “As the prosecution has not been able to discharge its burden of
establishing beyond reasonable doubt that the deceased died due to poisoning, in our view, the trial
court and the High Court could not have held the appellants guilty just because the appellants have
not been able to explain under what circumstances the deceased died.” Thus the conviction of the
accused was set aside by the Supreme Court in this case.

[4.2] That the accused had the intention to cause death of the victim is not proved by the
Prosecution.

¶4 It was held in the case of Jabbar v State30, that unless the act is done against the mother
with an intention or with a knowledge which brings it within the purview of § 29931, 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 prosecution to prove that

25
Sunil Kundu v. State of Jharkhand, 4 S.C.C. 422,426 (2013).
26
Partap v. State of U.P., 2 S.C.C. 798, 800 (1976).
27
Indian Evidence Act §105 (1872).
28
Indian Evidence Act §101 (1872).
29
Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444, 446 (2014).
30
Jabbar v. State, S.C.C. OnLine 337 (All:1965).
31
Indian Penal Code § 299 (1860).
25
 ARGUMENTS ADVANCED
the act done by the accused falls under the category of culpable homicide. However, in the present
case, the prosecution has failed to prove that beyond a reasonable doubt and with requisite mens
rea.

¶5 According to facts of the case, though accused had developed strained relationship with his
wife (victim) but this was due to the work pressure he had. 32 It has been stated by him that he was
not ready to start a family that’s why he asked her to abort. He had commited some mistakes but
later he tried to correct them. He had tried to resolve the matter between them33 and for that purpose
he had invited her for the dinner at his place. He had even called his parents to meet her but they
could not attend due to medical issues 34. The accused had even remained cordial35 throughout the
dinner. This all indicate that he had only one intention and that was to talk to her to resolve the
issue between them and nothing else. There is no motive for him to kill her. Thus, the prosecution
theory is without any doubt a false assumption which cannot be proved.

[4.3] Complete chain of circumstances not established to prove accused guilty

¶6 It is submitted that in the case of Satpal v State of Haryana36, it was stated that, “to sustain
a conviction on the basis of circumstantial evidence, it was necessary that all links in the chain
circumstances must be complete leading to the only hypothesis for guilt of the accused. If there
were any missing link in the chain of circumstances and the possibility of innocence cannot be
ruled out, the benefit of doubt must be given by acquittal.” This has also been observed in
Umedbhai v State of Gujarat 37 , “It is well established that in a case resting on circumstantial
evidence all the circumstances brought out by the prosecution, must inevitably and exclusively,
point to the guilt of the accused and there should be no circumstances which may reasonably be
considered consistent with the innocence of the accused. Even in the case of circumstantial
evidence, the court will have to bear in mind the cumulative effect of all the circumstances in a

32
Para 7, Moot Proposition.
33
Para 10, Moot Proposition.
34
Ibid.
35
Ibid.
36
Satpal v. State of Haryana, 6 S.C.C. 610, 612 (2018).
37
Umedbhai v. State of Gujarat, A.I.R. 424, 427 (1978).
26
 ARGUMENTS ADVANCED
given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution
case.”

¶7 In the case of State of UP v Ravindra Prakash Mittal38, it was stated that, “the
circumstances should, to a moral certainity, exclude the possibility of guilt of any person other
than the accused. This has been reiterated in Mustkeem v state of Rajasthan39, where it was stated
that, “conviction on the basis of circumstantial evidence would be justified only when all the
incriminating facts and circumstantial are found to be incompatible with innocence of the
accused or guilty of any other person.”

¶8 In the case of Suresh Chandra Bahri v. State of Bihar40, it was stated that “if motive is
proved, thatwould supply a link in the chain of circumstantial evidence but
the absence thereof cannot be a ground to reject the prosecution
case. However, at the same time, as observed by this Court inthe case
of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor
that weighs in favour of the accused.” This has also been reiterated in
Vide Pannayar v. State of T.N41, where it was held that “the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in favour of the accused.”

¶9 In State of U.P. v Kishanpal42, it was observed by the Court that “… the motive is a thing
which is primarily known to the accused themselves and it is not possible for the prosecution to
explain what actually promoted or excited them to commit the particular crime. The motive may
be considered as a circumstance which is
relevant for assessing the evidence but if the evidence is clear and unambiguous and the
circumstances prove the guilt of the accused and the same is not weakened even if the motive is
not a very strong one. It is also settled law that the motive loses all its importance in a case where
direct evidence of eyewitnesses isavailable, because even if there may be a very strong motive fo

38
State of UP v. Ravindra Prakash Mitta, A.I.R. 2045, 2048 (1992).
39
Mustkeem v. State of Rajasthan, A.I.R. 2769, 2771 (2011)
40
Suresh Chandra Bahri v. State of Bihar, Supp (1) SCC 80, 85 (1995).
41
Vide Pannayar v. State of T.N., 9 S.C.C. 152, 153 (2009).
42
State of U.P. v. Kishanpal, 16 S.C.C. 73,75 (2008).
27
 ARGUMENTS ADVANCED
r the accused persons to commit a particular crime, they cannot be convicted if the evidence of
eyewitness is not convincing. Inthe same way, even if there may not be an apparent motive but if
the evidence of the eyewitnesses is clear and reliable, the absence of inadequacy of motive
cannot stand in the way of conviction.” This has been reiterated in
Anwar Ali V State of Himachal Pradesh43

¶10 It is humbly submitted before the honourable Court that in the present case, the prosecution
has not been able to prove its contention beyond reasonable doubt. There are discrepancies in the
submissions of the prosecution; various gaps can be found in the prosecution theory which is not
explained. The fact that house was locked from inside, it can be deduced from the action of Rajesh
Gujral as he was ringing the bell and nobody answered44, has been over looked by the prosecution.
Another fact that Rajesh got inside the house45 when it was locked and he has also not been able
to provide an answer as to explain how did he got inside, this has also been overlooked by the
prosecution. Rajesh could have tampered with the crime scene. However the prosecution has just
turned a blind eye towards his actions. The greator question which the prosecution has failed to
answer is if Peter had caused death of the victim, how he did lock the door from inside and why
would he do such a silly act when he knew that in any case of mishappenings, he would be the first
person on whom suspicion would fall. Just because the victim died in mysterious circumstances
which the accused is not able to explain does not make him guilty 46. Thus, the prosecution is not
able to prove the complete chain of evidence, the motive has not been established by the
prosecution nor absolute guilt of the accused is being proved. The element of culpable homicide
which is most necessary under § 316 cannot be established by the prosecution. So the prosecution
cannot charge the accused for the same.

V. THAT THE ACCUSED CANNOT BE CHARGED AND TRIED UNDER § 302 OF IPC
WHICH PRESCRIBES PUNISHMENT FOR MURDER.

43
CRIMINAL APPEAL NO. 1121 OF 2016.
44
Para 11, Moot Proposition.
45
Para 12, Moot Proposition.
46
Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444,446 (2014).
28
 ARGUMENTS ADVANCED
¶1 § 30247 of IPC prescribes “punishment for Murder” and Murder is defined under § 300 of
IPC. Therefore, for charging the accused under § 302, first ingredients of § 300 48 have to be
fulfilled. According to § 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. 49

However, the prosecution has failed to show the presence of intention as well as the action done
on part of accused which are two necessary conditions required to under this § in order to bring
charge against the defendant.

[5.1] The Prosecution has not been able to prove that the accused commited the offence
beyond reasonable doubt and with requisite mens rea.

¶2 It is submitted that in the case of Anand Ramachandra Chougule vs Sidarai Laxman

Chougala50, it was held by the Supreme Court that, “The burden lies on the prosecution to prove
the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only
to create a doubt about the prosecution case and the probability of its defence. An accused is not
required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If
the accused takes a defence, which is not improbable and appears likely, there is material in support
of such defence, the accused is not required to prove anything further. The benefit of doubt must
follow unless the prosecution is able to prove its case beyond all reasonable doubt.”

¶3 It has been observed in Partap vs. State of U.P.51, that “…the distinction between the nature
of burden that rests on an accused under § 10552 of the Evidence Act to establish a plea of self-

47
Indian Penal Code §302 (1860).
48
Indian Penal Code §300 (1860).
49
Jakeman(1983) CRI L.R. 104.
50
Anand Ramachandra Chougule v. Sidarai Laxman Chougala, 8 S.C.C. 50, 55 (2019).
51
Partap v. State of U.P., 2 S.C.C. 798, 800 (1976).
52
Indian Evidence Act § 105 (1872).
29
 ARGUMENTS ADVANCED
defence and the one cast on the prosecution by § 10153 to prove its case. It is well settled that the
burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution
is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by
establishing a mere preponderance of probability.” In the case of Joydeb Patra &Ors vs State Of
West Bengal54, it was held that, “As the prosecution has not been able to discharge its burden of
establishing beyond reasonable doubt that the deceased died due to poisoning, in our view, the trial
court and the High Court could not have held the appellants guilty just because the appellants have
not been able to explain under what circumstances the deceased died.” Thus the conviction of the
accused was set aside by the Supreme Court in this case.

[5.2] That the accused had the intention to cause death of the victim is not proved by the
Prosecution

¶4 According to facts of the case, though accused had developed strained relationship with his
wife (victim) but this was due to the work pressure he had. 55 It has been stated by him that he was
not ready to start a family that’s why he asked her to abort. He had commited some mistakes but
later he tried to correct them. He had tried to resolve the matter between them56 and for that purpose
he had invited her for the dinner at his place. He had even called his parents to meet her but they
could not attend due to medical issues 57. The accused had even remained cordial58 throughout the
dinner. This all indicate that he had only one intention and that was to talk to her to resolve the
issue between them and nothing else. There is no motive for him to kill her. Thus, the prosecution
theory is without any doubt a false assumption which cannot be proved.

[5.3] Complete chain of circumstances not established to prove accused guilty

¶5 It is submitted that in the case of Satpal v state of Haryana59, it was stated that, “to sustain
a conviction on the basis of circumstantial evidence, it was necessary that all links in the chain

53
Indian Evidence Act § 101 (1872).
54
Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444,446 (2014).
55
Para 7, Moot Proposition.
56
Para 10, Moot Proposition.
57
Ibid.
58
Ibid.
59
Satpal v. state of Haryana, 6 S.C.C. 610, 612 (2018).
30
 ARGUMENTS ADVANCED
circumstances must be complete leading to the only hypothesis for guilt of the accused. If there
were any missing link in the chain of circumstances and the possibility of innocence cannot be
ruled out, the benefit of doubt must be given by acquittal.” This has also been observed in
Umedbhai v State of Gujarat 60 , “It is well established that in a case resting on circumstantial
evidence all the circumstances brought out by the prosecution, must inevitably and exclusively,
point to the guilt of the accused and there should be no circumstances which may reasonably be
considered consistent with the innocence of the accused. Even in the case of circumstantial
evidence, the court will have to bear in mind the cumulative effect of all the circumstances in a
given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution
case.”

[5.3.1] There is a possibility of guilty of another person other than accused

¶6 In the case of State of UP v Ravindra Prakash Mittal 61 , it was stated that, “the
circumstances should, to a moral certainity, exclude the possibility of guilt of any person other
than the accused. This has been reiterated in Mustkeem v state of Rajasthan62, where it was stated
that, “conviction on the basis of circumstantial evidence would be justified only when all the
incriminating facts and circumstantial are found to be incompatible with innocence of the accused
or guilty of any other person.”

[5.3.2] Absence of motive weighs in favour of the accused

¶7 In the case of Suresh Chandra Bahri v. State of Bihar 63 , it was stated that “if motive is
proved, that would supply a link in the chain of circumstantial evidence but the absence thereof
cannot be a ground to reject the prosecution case. However, at the same time, as observed by this
Court in the case of Babu (supra), absence of motive in a case depending on circumstantial
evidence is a factor that weighs in favour of the accused.” This has also been reiterated in

60
Umedbhai v. State of Gujarat, A.I.R. 424, 427 (1978).
61
State of UP v. Ravindra Prakash Mittal, A.I.R. 2045, 2047 (1992).
62
Mustkeem v. State of Rajasthan, A.I.R. 2769, 2771 (2011).
63
Suresh Chandra Bahri v. State of Bihar, Supp (1) S.C.C. 80, 82 (1995).
31
 ARGUMENTS ADVANCED
Vide Pannayar v. State of T.N64, where it was held that “the absence of motive in a case depending
on circumstantial evidence is a factor that weighs in favour of the accused.”

¶8 In State of U.P. v Kishanpal65, it was observed by the Court that “… the motive is a thing
which is primarily known to the accused themselves and it is not possible for the prosecution to
explain what actually promoted or excited them to commit the particular crime. The motive may
be considered as a circumstance which is relevant for assessing the evidence but if the evidence
is clear and unambiguous and the circumstances prove the guilt of the accused and the same is not
weakened even if the motive is not a very strong one. It is also settled law that the motive loses all
its importance in a case where direct evidence of eyewitnesses is available, because even
if there may be a very strong motive for the accused persons to commit a particular to commit a
particular crime, they cannot be convicted if the evidence of eyewitness is not convincing. In
the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses
is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.”
This has been reiterate in Anwar Ali V State of Himachal Pradesh66

[5.4] Mere Suspicion cannot be a reason for holding conviction of the accused

¶9 It was held in Union of India v. Prafulla Kumar67, that if two views are possible and the
evidence produced gives rise to some suspicion but not great suspicion, the Court would be
justified to discharge the accused and even the principles of that judgment clearly shows that the
petition is entitled to discharge.

¶10 In P. Vijayan v. State of Kerala68, the Supreme Court held that the courts are empowered
to discharge accused if two views are possible and one of them give rise to suspicion only as
distinguished from grave suspicion. It was also held that the judge is not a mere post office to
frame the charge at the behest of the prosecution.

64
Vide Pannayar v. State of T.N, 9 S.C.C. 152, 155 (2009).
65
State of U.P. v. Kishanpal, 16 S.C.C. 73, 75 (2008).
66
CRIMINAL APPEAL NO. 1121 OF 2016.
67
Union of India v. Prafulla Kumar, S.C.C. 609, 611 (1979).
68
P. Vijayan v. State of Kerala, A.I.R. 663, 665 (2010).
32
 ARGUMENTS ADVANCED
¶11 It is humbly submitted before the honourable Court that in the present case, the prosecution
has not been able to prove its contention beyond reasonable doubt. There are discrepancies in the
submissions of the prosecution; various gaps can be found in the prosecution theory which is not
explained. The fact that house was locked from inside, it can be deduced from the action of Rajesh
Gujral as he was ringing the bell and nobody answered69, has been over looked by the prosecution.
Another fact that Rajesh got inside the house70 when it was locked and he has also not been able
to provide an answer as to explain how did he got inside, this has also been overlooked by the
prosecution. Rajesh could have tampered with the crime scene or another version could have
occurred which resulted in the commission of murder. It could also have been that Rajesh went
before 10 am and an argument would have break down with the victim which resulted in assault
and later her murder by an act of hanging all of which could have been done by Rajesh. As to the
motive it might be the victim wanted to resolve the issue with her husband but Rajesh did not want
her go because of their affair. He stole the device to erase any evidence as he was a technology
expert. It could have been this version of what actually might have occurred but the prosecution
has just turned a blind eye towards his actions. The greater question which the prosecution has
failed to answer is if Peter had caused death of the victim, how he did lock the door from inside
and why would he do such a silly act when he knew that in any case of mishappenings, he would
be the first person on whom suspicion would fall. Just because the victim died in mysterious
circumstances which the accused is not able to explain does not make him guilty71. Mere suspicion
is not sufficient to hold that there is a sufficient ground to proceed against the accused. 72 The
prosecution has to establish offence against the accused beyond reasonable doubt. If this is not
done the benefit of the doubt goes to the accused73. Thus, the prosecution is not able to prove the
complete chain of evidence, the motive has not been established by the prosecution nor absolute
guilt of the accused is being proved. Therefore the charge of murder cannot be put up on the
defendant because the ingredients required are not fulfilled.

69
Para 11, Moot Proposition.
70
Para 12, Moot Proposition.
71
Joydeb Patra & Ors v. State Of West Bengal, 12 S.C.C. 444,446 (2014).
72
Yogesh v. State of Maharashtra, 1 S.C.C. (Cri) 51, 53 (2009).
73
Seriyal Udayar v. State of Tamil Nadu, 2 S.C.C. 359,361 (1987).
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 ARGUMENTS ADVANCED
[5.5] It is impermissible to charge the accused with two distinct offences

¶12 It is submitted that the prosecution had charged the defendant with the “Abatement of
suicide” mentioned under § 306 0f IPC and with “causing death of a quick unborn child by an act
amounting to culpable homicide” under § 316 and now is charging him under § 302 which
prescribes the “punishment for murder”. However in doing so the prosecution had violated the
rulings of the Honourable Supreme Court.

¶13 It was observed by the Supreme Court in the case of Sangaraboina Sreenu v State of
Andhra Pradesh,74that the offence under 306 and 302 are of different and distinct categories. In
the words of the Court, “This appeal must succeed for the simple reason that having acquitted the
appellant of the charge under § 302 IPC which was the only charge framed against him - the High
Court could not have convicted him of the offence under § 306 IPC. It is true that § 222 Cr.P.C.
entitles a Court to convict a person of an offence which is minor in comparison to the one for
which he is trial but § 306 IPC cannot be said to be a minor offence in relation to an offence under
§ 302 IPC within the meaning of § 222 Cr.P.C. for the two offences are of distinct and different
categories. While the basis constituent of an offence under § 302 IPC is homicidal death those of
§ 306 IPC are suicidal death and abetment thereof.”

¶14 This distinction between the offence of 306 and 302 has also been observed in the decision
of Delhi High Court in the case of Jatinder Kumar v. State (Delhi Admn.)75. It was stated that, “A
bare reading of the aforesaid § shows that the doubt has to be as to the nature of the offence and
not about the facts. If in a given case, on the facts which can be proved by the prosecution, it is
doubtful which of the offence the said facts will constitute the framing of charge in the alternative
is permissible. S. 221 is not intended to be applied to a case where facts are in doubt. Ordinarily,
an alternative charge cannot be framed in respect of distinct offences. The offence under S.302
IPC and the offence under S. 306 are distinct. The ingredients of the two provisions are altogether
different. The prosecution has to take a stand whether it is a case of murder or suicide. The
prosecution cannot say that the accused has murdered the deceased and if the deceased has

74
Sreenu v State of AP, 4 S.C.C. 214, 216 (1997).
75
Jatinder Kumar v. State (Delhi Admn.), CRI.L.J. 1482, 1484 (1992).
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 ARGUMENTS ADVANCED
committed suicide, the accused has abetted the commission of suicide. The framing of such charge
is not permissible under S. 221 of CrPC, as there is a doubt about the facts which can be proved
and in that eventuality S. 221 of the Code has no application.” Bombay High Court in the decision
of Santosh Kudtarkar v State76 had also observed that “There cannot be any manner of dispute that
the offences punishable under § 302 and 306 of IPC are distinct and cannot be said to be offences
of the same genre. While offence under § 302 requires that the death is homicidal, the one under
§ 306 of IPC would require a finding that the death is suicidal in nature.” Therefore, it is
impermissible to frame an alternate charge under § 302 and 306 of IPC.

¶15 The prosecution is not able to decide which charges to press and in doing so it is causing
unnecessary harm to the defendant and violating his right to the fair trial. It is putting the charges
to be decided in a Court but Judge is not a mere post office to frame the charge at the behest
of the prosecution77.The prosecution is also violating the rule of law by going against the
judgement of Supreme Court according to which both the offences of 306 and 302 are different
and it is impermissible to charge the accused with both the charges. § 221 of the CrPC does not
allow so. The facts are in doubt. The prosecution has not been able to prove the guilt of the
accused beyond the reasonable doubt and it is harassing the accused unnecessarily by invoking
different provisions.

76
Santosh Kudtarkar v. State, S.C.C. OnLine 2300,2302 (Bom:2016).
77
P. Vijayan v. State of Kerala, A.I.R. 663, 665 (2010).
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 PRAYER

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, The Hon’ble
Court to kindly adjudge and declare:

 That the Hon’ble Court will not admit the Alexa device as evidence in the Court of Law.

 That the Hon’ble Court will not admit evidence stolen from crime scene in the Court of
Law.

 That the Hon’ble Court should not make Dr. Peter undergo Narco analysis but Mr. Rajesh
Gujral should be subjected to Narco analysis.

 That the Hon’ble Court will not charge Dr. Peter under § 316, IPC.

 That the Hon’ble Court does not find the case fit to add a charge under § 302, IPC and will
not charge the accused person for any other charge.

 That the Hon’ble Court should reopen primary investigation in the case

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 Defendant, as is duty bound shall forever humbly pray.

(Counsel on behalf of the Defendant)

36