SUBJECT MOOT: LAW OF CRIMES-II

BEFORE THE HON’BLE SESSION COURT

STATE OF RAJASTHAN

(PROSECUTION)

V.

SUDHEER

(DEFENDANT)

MEMORANDUM ON BEHALF OF PETITIONER

SUBMITTED TO: SUBMITTED BY: -

Miss. SUMAN CHOUDHARY RITIK YADAV

ASST. PROF. BBALLB (4th SEM)

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 INDEX OF ABBREVIATIONS

& AND
AIR All India Reporter
A.P. Andhra Pradesh
CrPc Criminal Procedure Code
FIR First Information Report
Hon`ble Honourable
MR. Mister
HC High Court
Ors. Others
Pvt. Ltd Private limited
SCC Supreme Court Cases
SC Supreme Court
St. State
U.P Uttar Pradesh
UOI Union Of India
v. Versus
IO Investigation officer
JM Judicial magistrate

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 INDEX OF AUTHORITIES

BOOKS REFFERRED:

1. KD Gaur, Indian Penal Code,universal law publishing, sixth edition.

2. Ratanlal & Dhirajlal, Indian Penal Code, Lexis Nexis, Gurgaon 36th edition.
3. Criminal Procedure - R.V. Kelkar's Criminal Procedure sixth edition.

WEBSITE REFERRED:

1. WWW.INDIANKANOON.ORG
2. WWW.CASEMINE.COM
3. WWW.LAWOCTOPOUS.COM

CASES REFERRED:

1. Kishna Ram v. State of Raj. & ors

2. Govindappa v. State of Karnataka
3. Tahal Singh v. Punjab  
4. State Of Rajasthan vs Kishore  
5. Karan Singh vs State Of M.P
6. Rameshwar vs state of rajasthan
7. State of up vs Krishna masters and ors
8. Himmat sukhadeo wahurwagh & ors vs state of Maharashtra
9. Golla yelugu govindu vs state of andra Pradesh
10. Ulkaram vs state of rajasthan

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 TABLE OF CONTENTS

1. STATEMENT OF JURISDICTION……………….5
2. STATEMENT OF RELEVANT FACTS………….6
3. ISSUES RAISED…………………………………....7
4. ARGUMENTS ADVANCED………………………8
5. PRAYER…………………………………………….13

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 STATEMENT OF JURISDICTION

The counsels representing the prosecution have endorsed their pleadings before the Hon`ble
Principal District & Sessions Court, jaipur under Section 209 1 of the Code of Criminal
Procedure, 1973 in which the Hon`ble Court has the jurisdiction.

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Commitment of case to Court of Session when offence is triable exclusively by it. When in a
case instituted on a police report or otherwise, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of
Session, he shall-

(a) 1 commit, after complying with the provisions of section 207 or section 208, as the case may
be, the case to the Court of Session, and subject to the provisions of this Code relating to bail,
remand the accused to custody until such commitment has been made;]

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during,
and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to
be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

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 STATEM ENT OF RELEVANT FACTS

1. Rameshwari was living with her 2 children and her father in law (70 years old) at 10

Shiv Marg, civil lines jaipur. She was married to Siddharth june 2013. Sudheer,

brother of her husband had an evil eye on her.

2. On 19 January 2020, some person knocked on her door. When she went to open her

door, no one was there. She returned back to her room and thereafter went to toilet.

Toilet was open to the sky. On entering the toilet she saw Sudheer hiding there. He

immediately poured Kerosene on her and lit her with a match. R ran out, shouting for

the help. Her elder son Daksh, aged 6 years woke up and tried to save her. Sudheer

fled away

3. R was admitted in the hospital in the sami naked condition. At 4.45 am R was

declared fit for the statement. Her statement was recorded by the IO. She named S as

a culprit. FIR was registered u/s 307 and u/s 498A of IPC.

4. . JM recorded a second statement of Rameshwari at 5:30 am after obtaining a fitness

certificate MLC of the victim which suggested 100% burns. Daksh’s statements were

recorded under s 161 of Crpc.

5. R died due to the burns. FIR was converted into u/s 302 for murder. From personal

search of Sudheer a bus ticket dated 17 January 2020 from Jodhpur to jaipur was

recovered.

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 ISSUES RAISED

1. Can conviction be solely based on dying declaration?

2. Whether child witness is admissible as evidence in court of law?

3. Whether the accused was guilty of the offence under section 304B or 302

IPC?

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 ARGUMENTS ADVANCED

1. Can conviction be solely based on dying declaration?

Word “Dying Declaration” means a statement written or verbal of relevant

facts made by a person, who is dead. It is the statement of a person who had

died explaining the circumstances of his death. This is based on the maxim

‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with

lie on his mouth.

In the case of Kishna Ram v. State of Raj. & ors.2  the witnesses clearly stated

that all above accused gave beating to the victim before burning her. In

dying declaration recorded by the Judicial Magistrate Shri Ashwani Kumar (PW-12),

the victim clearly stated that at that time she was given beating by all the accused-non-

petitioners and thereafter her father-in-law Nathu Ram @ Nathu Ram burnt the victim.

The trial court relied upon the dying declaration as well as oral evidence

In the case of Govindappa v. State of Karnataka3, the victim had 100% burn injuries and

yet she was found to be in a fit state of mind to give her statement and affix her left thumb

impression on the statement. The dying declaration was accepted by this Court on the

evidence of the doctor that the victim was in a position to talk.

2
AIR 1983 Raj 169, 1982 WLN UC 515
3
1469 OF 2008

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Similarly, in our case when rameshwari admitted in the hospital in the semi naked

condition, at At 4.45 am Ramshwari was declared fit for the statement, Her statement was

recorded by the IO. She named Sudheer as a culprit.

Afterwards JM was informed, JM recorded a second statement of Rameshwari at 5:30 am

after obtaining a fitness certificate MLC of the victim which suggested 100% burns. R

died due to the burns.

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2. Whether child witness is admissible as evidence in court of law?

A child witness is also a witness, just like any other witness. There is no minimum age bar

for becoming a witness. Indian legal systems have repeatedly reaffirmed that child witness

testimonies are also valid evidence and the same is admissible. The only condition is if the

child truly and properly understands the responsibility to speak the truth and rational

understand of the questions put to him. 

The competence of a child witness may be determined by using the “Voir Dire” test.

In the case of Tahal Singh v. Punjab4, In our country, particularly in rural areas it is

difficult to think of a load of 13 year as a child. A vast majority of boys around that age go

in fields to work. They are certainly capable of understanding the significance of the oath

and necessity to speak the truth. Therefore it has opportunity to see him, notice his

demeanors, record his evidence and thereafter on scrutiny accepted his testimony. Here the

court observed that a child may not understand the nature of an oath but if he is otherwise

competent to testify and understand the nature of the questions put before him and is able

to give rational answers thereto, then the statement of such a child witness would be held

to be admitted and no corroborative proof is necessary.

Similarly, in our case Daksh’s statements were recorded under s 161 of Crpc, Her elder

son, aged 6 years woke up and tried to save her,  it will be found that the presence of these

witnesses in the house is the normal situation and their witnessing the incident cannot be

regarded as unusual or unnatural. Therefore, their evidence inspires confidence and will

have to be acted upon.

4
AIR 1979 SC 1347
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3. Whether the accused was guilty of the offence under section 304B IPC or

302 IPC?

Section 304B IPC- Dowry death

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise

than under normal circumstances within seven years of her marriage and it is shown that

soon before her death she was subjected to cruelty or harassment by her husband or any

relative of her husband for, or in connection with, any demand for dowry, such death shall

be called “dowry death”, and such husband or relative shall be deemed to have caused her

death.

In our case clearly stated that there was no demand of dowry nor had rameshwari ever
complained about any demand or ill-treatment but used to say that all is well, except
Sudheer, brother of her husband had an evil eye on her.

Section 302 IPC- punishment for murder

Whoever commits murder shall be punished with death, or 1[imprisonment for life]
and shall also be liable to fine.

In the case of State Of Rajasthan vs Kishore 5  The Sessions Judge relied upon the three

dying declarations and he has given primacy to the dying declaration recorded by the

Judicial Magistrate and held that the charge under Section 302, IPC was proved against

5
JT 1996 (2), 595 1996 SCALE (2)462
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 the respondent and convicted him under Section 302 and sentenced him to undergo

rigorous imprisonment for life.

In the case of Karan Singh vs State Of M.P6 the learned Sessions Judge convicted the

accused for the offence under Section 302 IPC and awarded him rigorous imprisonment

for life vide his judgment dated 9th February, 1998. 

Similarly in our case sudheer poured Kerosene on her and lit her with a match and fled

away, and then She was admitted to the hospital and was found to be having 100 per cent

burn injuries and then r died due to the burns and From personal search of Sudheer a bus

ticket dated 17 January 2020 from Jodhpur to jaipur was recovered.

PRAYER

It is most humbly prayed before this Hon’ble Session court, in the light of the issues raised,
arguments advanced and authorities cited, the court may adjudge and declare that:
6
1965 AIR 1037, 1965 SCR (2) 1
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  For committing the offence punishable under section 302 IPC,
sentenced him to undergo life imprisonment or punished with
death penalty.

The court may also be pleased to pass any other order, which this Hon’ble Court may deem
fit in the light of justice, equity and good conscience

(COUNCIL ON THE BEHALF OF PETITIONER)

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