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TEAM CODE: MABMC1911

BEFORE THE HON’BLE SUPREME COURT OF

INDIANA
[UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA]

Imroj & Ors……………………………….(Appellants)

v.

The State…………………………………….(Respondent)

Counsel appearing on behalf of the PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVITIONS………………………………………………………………….3

INDEX OF AUTHORITIES…………………………………………………………………4

STATEMENT OF JURISDICTION…………………………………………………………6

STATEMENT OF FACTS……………………………………………………………………7

STATEMENT OF ISSUES……………………………………………………………...…..10

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

ARGUMENTS ADVANCED……………………………………………………………….12

PRAYER……………………………………………………………………………………..16

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LIST OF ABBREVIATIONS

A.I.R ALL INDIA REPORTER

Anr ANOTHER

Art. ARTICLE

Cr. CRIMINAL

Cr.LJ CRIMINAL LAW JOURNAL

Ed. EDITION

e.g EXEMPLUM GRATIA

HC HIGH COURT

Hon’ble HONOURABLE

IPC INDIAN PENAL CODE, 1860

i.e THAT IS

I.L.R INDIAN LAW REPORTER

LR LAW REPORTER

Ors. OTHERS

P. PAGE

SC SUPREME COURT

SCC SUPREME COURT CASES

SCWR SUPREME COURT WEEKLY REPORT

UOI UNION OF INDIA

Viz. NAMELY

& AND

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INDEX OF AUTHORITIES

STATUTES

1. The Constitutiton of India.

2. Code of Criminal Procedure, 1973.
3. Indian Penal Code, (45 of 1860).
4. Indian Evidence Act, 1872.

BOOKS
1. Constitutional Law of India, Durga Das Basu, Lexis Nexis, 8 th Edition 2008.
2. Constitution of India, V. N. Shukla, Eastern Book Company, Twelfth Edition, 2013.
3. Constitutional Law of India, J. N. Pandey, Central Law Agency, Fifty Fifth
Edition,2018.
4. Constutution law of India, Dr, Narendra Kumar, Allahabad Law Agency, Ninth
Edition, 2015.
5. Indian Constitution Law, M P Jain, Lexis Nexis, Eighth Edition, 2018.
6. Textbook on Indian Penal Code, K D Gaur, Universal Law Publishing, Lexis Nexis,
Sixth Edition, 2018.
7. Takwani Criminal Procedure, C K Thakker ‘Takwani’, M C Thakker, Lexis Nexis, 4 th
Edition, 2015.

WEBSITES

1. www.indiankanoon.org
2. www.legalblog.in
3. www.casemine.com
4. www.myadva.in
5. www.mondaq.com
6. www.lawyersclubindia.com
7. www.ijtr.nic.in
8. www.latestlaws,com
9. www.livelaw.in
10. www.zegal.in
11. www.sclt.in
12. www.legalcrystal.com

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13. www.the-laws.com
14. www.lawyerservices
15. www.airwebworld.com

CASES

1. State of Gujarat v. Bai Fatima, AIR 1975 SC 1478.

2. Dwarka Prasad v. State of Uttar Pradesh, 1993 SCR (2) 70, 1993 SCC Supl. (3)
141.
3. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 AIR 753, 1983 SCR (3)
280.
4. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162.
5. Subash Babu v. State of Andhra Pradesh, AIR 2011 SC 3031: (2011) 7 SCC 616:
JT 2011 (8) SC 483: (2011) 7 SCALE 671.

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has the jurisdiction to grant special leave to appeal against any
judgment or order or decree, in any matter or cause, passed by any Court, under Article 136
of Constitution of Indica.

Article 136 provides as:-

Special leave to appeal by the Supreme Court--

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to Armed
Forces.

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STATEMENT OF FACTS

Back Story:

Basir have love affairs with Maimuna, daughter of Mirza. Imroj who is related to Basir, did
not support Mirza as they had issues between them with respect to the affair between Basir
and Maimuna--Mirza’s daughter. Alim is the elder brother of Mirza.

 On 05.05.2005, at around 9:30 p.m., Imroj was preparing for next day while Alim
came there and started abusing him for not supporting Mirza. They exchanged abuses
and a quarrel started.
 In the meanwhile Imroj’s wife also came there. Alim had a stick with him. He gave
blows to him and his wife with the stick. In order to defend himself and his wife, he
gave a hasua blow to Alim.
 Alim fell down and he was declared dead in Civil Hospital Haroa. Imroj and his wife
was also injured very badly. They were also admitted in the same hospital.
 Dr. Prithvi Raj Banerjee was BMO posted at Civil Hospital Haroa, medico legally
examined the accused-Imroj on 05 05 2005 at 10:45 p.m. in the hospital and found the
following injuries on his person:
1. There was an incised wound 2 x 0.5 cm bone deep sent on arteries lateral aspect of
left forearm, just above the wrist joint. Fresh bleeding was present. X-ray was
advised.
2. There was an incised wound 2 x 0.5 cm deep present on back right forearm 5 cm
below electron on process. Fresh bleeding was present. X-ray was advised.
3. There was an unscabbed abrasion 1 x 1 cm over bridge of nose. X-ray was
advised.
4. There was an abrasion 1.5 x 1 cm on right side of face below right eye adjacent to
nose.
5. There was an abrasion 3 x 1 cm on the back of right foream on its upper part, 3 cm
below injury no. 2.
6. There was an abrasion 1.5 x 1 cm on lateral side of right forearm on its lower part.
7. There was an abrasion 4 x 3 on were kept under observation and the remaining
injuries were declared as simple. The probable duration of injuries was within 6
hours. Most of the injuries were caused by blunt weapon

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He also medico legally examined the wife of the accused Imroj and found following
injuries on her person:
1. There was a reddish contusion 2 x 1.5 cm with underlying swelling 5 x 3 cm on
dorsum of right hand on medical side. X-ray was advised.
2. There was a reddish contusion 6 x 1.5 cm on lateral side of right on its middle.
3. There was an abrasion 3 x 2 cm on medical side of the left forearm on its upper
part.
4. In the opinion of the Doctor injury no. 2 and 3 were found simple in nature,
whereas injury no. 1 was declared grievous in nature caused by blunt weapon
within duration of 6 hours.
 On 10.5.2005, Imroj was discharged from hospital and was arrested by the
Investigating Officer A.S.I Anwar Ali.
 Thereafter investigation of the case was taken over by S.I. M. Ali. S.I. M. Ali
accompanied by Anwar Ali went to village Rainagar, where Rahim, nephew of Ali
and Ex-prodan produced Basir and Sarwar who later on were arrested.
 On 12.05.2005 Sarwar disclosed the whereabouts of the hasua to the police by which
Imroj self defended him.
 On completion of the investigation, charge sheet was presented against the accuseds
in the Court of Chief Judicial Magistrate, who committed the same to the Court of
Sessions.
 The learned Sessions Judge, Badarpur, charge-sheeted the appellants under Section
302 IPC read with Section 34 of IPC. The appellants pleaded not guilty to the offence
and claimed to be tried.
 Imroj pleaded that he gave the hasua blow to defend him and his wife. Basir and his
son Sarwar have been falsely implicated. Eye-witnesses Mirza and Rahim are made
up witnesses. Police helped the deceased party as brother of Alim i.e. Dalim is
working in the Police Department.
 Sarwar pleaded that he is innocent and has been falsely implicated in the case being
the son of Imroj.
 Basir produced the Maimuna’s hand written letters to prove their love affairs and for
which the quarrel between Alim and Imroj started.

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 The appellants in their defence examined Dr. Prithvi Raj Banerjee(DW-1), who
medico legally examined Imroj and his wife Smt. Tamanna. Dr. R.K. Das(DW-2)
radiologically examined Smt Tamanna.
 The trial court held the appellants guilty of the murder of Alim and accordingly,
convicted and sentenced them. On appeal the High Court also confirmed the
conviction and sentenced the appellants.

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STATEMENT OF ISSUES

1. Has the prosecution failed to establish a case beyond reasonable doubt?

2. Is right of private defence available to the accuseds?

3. Can evidence be considered during special leave to appeal?

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SUMMARY OF ARGUMENTS

1. Has the prosecution failed to establish a case beyond reasonable doubt?

The prosecution has failed to establish the injuries on the person of Imroj and his wife though
according to expert’s opinion injury was caused during the time of incident. Furthermore, the
motive and intention of Imroj to kill the victim Alim was not properly established. He was
convicted merely on the basis of murder weapon and on the basis of eye witnesses which
could be made up as both Mirza and Rahim are victim’s family members. Mirza also had
some issues with Imroj as he did not support him. Thus the prosecution had failed to establish
a case beyond reasonable doubt.

2. Is right of private defence available to the accuseds?

The accused had complete right of private defence because victim was continuously beating
him and also to his wife. Not only he was badly hurt but also his wife. Thus in order to save
him and his wife from further fatal injuriesd he had to defend them. And such right of private
defence is provided in Section 97 of Indian Penal Code.

3. Can evidence be considered during special leave to appeal?

The evidence can be considered during special leave to appeal because the evidence in this
case is a vital one. The injuries on accused Imroj and on his wife’s person are vital evidences.
This evidence clearly proves that victim was beating Imroj and his wife and to defend him
and his wife’s person hasua was blown to the victim by Imroj since it was his nearest object.
The victim due to the injury caused from such blow collapsed and died. The evidence is also
conclusive but yet had been suppressed which led to grave injustice. And the Supreme Court
should grant special leave to appeal in case where grave injustice is done.

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ARGUMENT ADVANCED

1. Has the prosecution failed to establish a case beyond reasonable doubt?

It is humbly submitted that the prosecution clearly failed to establish a case beyond
reasonable doubt as:

1.1 The prosecution did not put lights on an important fact of this case i.e. the injury of
Imroj and of his wife.
According to expert’s opinion (Dr. Prithvi Raj Banejee & Dr. R.K. Das), the injury was
caused within 6 hours meanwhile the incident also took place within such time period which
puts on a lot of weight on Imroj’s statement .This clearly indicates that the injuries were
caused by Alim during the above mentioned incident. Though these injuries serve as a prima
facie fact yet, they have been completely ignored by the prosecution.

It was held in State of Gujarat v. Bai Fatima1, it was said that when the prosecution fails to
explain the injuries on the person of an accused, depending on the facts of each case, any of
the three results may follow:-
( 1) That the accused had inflicted the injuries on the members of the prosecution party in
exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and charge against the
accused cannot be held to have been proved beyond reasonable doubt.
(3) It doesn’t affect the prosecution case at all.

1.2 Absence of essential element of crime.

(a)Intention/mens rea
Mens rea is an essential element of crime or in other words a crime cannot be committed in
absence of mens rea here in this case the victim Alim died due to the injury caused by Imroj
in complete heat of the moment for self defence in favour of both himself and his wife and
now supporting the above fact according to the Medical Expert based on the medical
examination conducted. Imroj and his wife were found to be badly injured or beaten by Alim
whereas it is very clear Imroj blew the hasua which was the nearest object to him as

1
AIR 1975 SC 1478.

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complete self defence . It now clearly shows that Imroj had no intention or motive for causing
death of Alim.

1.3Imroj was being convicted based on only two things that is the murder weapon and
the eye witness.
There is no doubt these are important things to base on but at the same time some other things
were completely kept in dark that is the facts that as per their statement the eye witnesses
Mirza and Rahim heard the noises and saw the murder near Rahim’s house but no other
people were present not a single person and they also said there were bunch of people called
up right after so how come the culprits escaped and were produced after a period of five days
by the same person Rahim who also proved out to be the Ex Pradhan and the victim’s other
brother Dalim was a Police Inspector which helped them to present the story and also
dominated the accused’s right to be heard or express his side of the story.

1.4 The prosecution failed to conduct proper examination of witnesses.

In this case though Imroj’s wife being an important part of the incident and also being
completely involved in the incident there was no statements recorded that of her.

2. Is right of private defence available to the accuseds?

Right to private defence is available to the accused.

Section 97 of IPC talks about right of private defence of the body and of property:
Every person has a right, subject to the restrictions contained in Section 99, to defend :
First- his own body, and the body of any other person against any offence affecting the
human body;
From the above-mentioned provision it is very clear that the accused had complete right of
private defence as not only he himself was badly hurt but also he had to save his wife who
was also badly injured. The experts opinion also help to draw the lights on the injuries
suffered by them could not be denied.
And under Section 96 of IPC, nothing is an offence, which is done in the exercise of the right
of private defence. Right of private defence cannot be said to be an offence in return.

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Thus from the above provision it clearly shows that the accused was wrongly charged under
section 302 of IPC which in itself is an offence. Here in this case the accused Imroj produced
enough grounds which provoked him or made him bound to commit such an act. Imroj was
left with no other choice but to hit the deceased Alim in order to save themselves from any
more injuries or it might have even led to a fatal injury.
In case of Dwarka Prasad v. State of Uttar Pradesh2, it was held that if the right of private
defence is available, while judging the question whether the accused has exceeded such right,
should not be weighed in golden scale.

3. Can evidence be considered during special leave to appeal?

The evidence can be considered during special leave to appeal.

First of all the counsel would like to present the case of Bharwada Bhoginbhai Hirjibhai v.
State of Gujarat3, where the Court summarized the circumstances when concurrent findings
of the courts below in a criminal matter can be reopened by the Supreme Court in an appeal
under Art. 136 of the Constitution:
(1) that the finding is based on no evidence or
(2) that the finding is perverse, it being such as no reasonable person could have arrived at
even if the evidence was taken at its face value or
(3) the finding is based and built on inadmissible evidence, which evidence if excluded
from vision, would negate the prosecution case or substantially discredit or impair it or
(4) some vital piece of evidence which would tilt the balance in favour of the convict has
been overlooked, disregarded, or wrongly discarded.

The present is the case of such nature. In this case the injury caused to Imroj and his wife is
completely ignored. According to Dr. Prithvi Raj Banerjee (DW-1) and Dr. R.K. Das, who
examined Imroj and his wife assumed that those injuries was caused within 6 hours before
the medical examination was conducted. The incident also took place within such time

2
1993 SCR (2) 70, 1993 SCC Supl. (3) 141.
3
1983 AIR 753, 1983 SCR (3) 280.

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period. Most of the injuries was caused by blunt weapon and was grievous in nature which
clearly indicates that such injuries was caused during the incident and was caused by Alim.
These injuries serves as a vital piece of evidence i.e. evidence of self defence which would
tilt the balance in favour of the convict.

Ignorance of Expert opinion and Grave injustice: Under Section 45 of Indian Evidence
Act , 1872 expert’s opinions are relevant facts.
Section 45 of Indian Evidence Act , 1872 states that:
Opinions of experts.—When the Court has to form an opinion upon a point of foreign law or
of science or art, or as to identity of handwriting [or finger impressions], the opinions upon
that point of persons specially skilled in such foreign law, science or art, [or in questions as
to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called
experts.
In case of Malay Kumar Ganguly v. Sukumar Mukherjee 4, it was held that the evidence of
an expert should be interpreted like any other evidence.
Thus the weight of expert opinion is like any other evidence but in this case it has been
completely ignored which is why the appellants became the subject of grave injustice.
Injuries on the body of appellant Imroj and his wife serve as important evidences yet it is
suppressed and was paid no attention which is why the appellants became the subject of
grave injustice.
And therefore the Supreme Court can and should consider the evidence during special leave
to appeal.
In case of Subash Babu v. State of Andhra Pradesh5 , it was held that power under Article
136 is exercisable outside the purview of ordinary law to meet demand of justice. Article 136
is a special jurisdiction extraordinary in its amplitude.

4
AIR 2010 SC 1162.
5
AIR 2011 SC 3031: (2011) 7 SCC 616: JT 2011 (8) SC 483: (2011) 7 SCALE 671.

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PRAYER

In the last light of the facts of the case issues raised and argument advanced, reasons given
and authorities cited, this Hon’ble Supreme Court be pleased

1. To consider

The evidence and grant special to appeal.

2. To Dismiss

The judgment of the High Court.

3. To Acquit

The appellant Imroj & Ors as the act was done in self defence.

And to grant any other relief/s that this Hon’ble Court may be pleased in the
interest of justice, equity and good conscience.

All of which is respectfully submitted.

Counsels for the petitioner.

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