MEMORANDUM OF RESPONDENTS

VIRTUAL INTRA MOOT COMPETITION, 2020

SCHOOL OF LAW,

SASTRA DEEMED TO BE UNIVERSITY

BEFORE THE HON’BLE SARNATAKA HIGH COURT

MEMORANDUM FOR ACCUSED

State rep. By inspectorofpolice B.V-------------------appellant

Mohana andoneanother------------------------------------------------------------respondent

The appellant has approached the High Court of Sarnataka under section 378(4) of the
criminal procedure code 1973

MEMORANDUM FOR THE ACCUSED

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TABLE OF CONTENTS

S.NO PG.NO

1. LISTOFABBREVIATION 4

2. INDEX OFAUTHORITIES

A) casesreferred

B) booksreferred

C) statutes referred

D) web sources referred

3. STATEMENT OFJURISDICTION

4. STATEMENT OFFACTS

5. STATEMENT OFISSUES

MEMORANDUM FOR THE COMPLAINANT

6. SUMMARY OFARGUMENTS

7.. ARGUMENTS ADVANCED

ADMISSABLITY OFCONFESSION
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ACCOMPLICE

KIDNAPPING

CRIMINALCONSPIRACY

PHONE CALL ADMISSABLE AS ANEVIDENCE

CIRCUMSTANTIAL EVIDENCE LIES TO PROVE THEM OF GUILTY

REVENGEFUL MOTIVE OFMOHANA

GUILTY OFMURDER

8. PRAYER
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INDEX OF ABBREVIATIONS

TERMS MEANING

& And

§ Section

¶¶ Paragraphs

A.C. Appellate Cases

AIR All India Reporter

Anr. Another Bom.

Cri.L.J Criminal Law Journal

n. Note

Ors. Others

Art. Article

Cl. Clause

Cr. Criminal

DB Division Bench

Ed. Edition

Etc. Etcetera

Govt. Government

HC High Court

Hon’ble Honourable

i.e. That is
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ILR Indian Law Reporter

V. versus

IPC Indian Penal Code

Cr.P.C (or) of the code Code of criminal procedure

MANU Manupatra

MEMORANDUM FOR THE COMPLAINANT

MLJ Madras LawJournal

No. Number

Ors. Others

P. Page

r/w Read with

SC SupremeCourt

SCC Supreme Court Cases

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INDEX OF AUTHORITIES

CASES REFFERED
1 Shankarai vs state of Rajasthan (1978) AIR 1248

2 Mani vs state of tamilnadu (2008)

3 Ravinder Singh vs state of Haryana (1975) AIR 856

4 .Sangili@sanganathan vs state of tamilnadu S.C (2014)

5 .Mir Mohammed Omar versus State of West Bengal, AIR 1785, 1989.
6 Kunwar Sen & Ots Versus State Of Uttar Pradesh, 12 February, 2020.

7 .Chakra Pal Singh & Anr Versus State Of Uttar Pradesh, 27 August,
2019.
8 .Saju Versus State Of Kerala, 15 November, 2000.
9 .Nalini Versus State Of DSP, 11 May, 1999.

10 Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984

11 Mohibur Rahman And Anr. vs State Of Assam on 21 August, 2002

12 Sk. Yusuf vs State Of West Bengal on 14 June, 2011

13 Hanumant vs The State Of Madhya Pradesh on 23 September, 1952
14 indian evidence act, 1872
15 Vikramjit Singh @ Vicky vs State Of Punjab on 24 November, 2006
16 Matru Alias Girish Chandra vs State Of Utttar Pradesh on 3 March, 1971
17 rahman v state of up. AIR 1972 SC 110

18 State Of M.P Through C.B.I., Etc vs Paltan Mallah, Etc on 20 January,

2005 Bipin Kumar Mondal vs State Of West Bengal on 26 July, 2010
19 Mr. Mridul Jain vs Unknown on 17 April, 2015
20 Arvind @ Chhotu vs State on 10 August, 2009
21 Md. Younus Ali Tarafdar v/s The State of West Bengal

22 Satishchandra Ratanlal Shah vs State Of Gujarat on 12 April, 2018

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23 Pranab @ Kuti Biswas vs State Of West Bengal on 25 September, 2006

24 Ram Chandra Sahu And Ors. vs The State on 20 March, 1962

25 Abdul Khan vs Emperor on 18 February, 1935

26 Abdul Rahman v. State of Haryana, decided on 01-04-2019

27 Dinesh Dass v. State (NCT of Delhi), dated 29-08-2018

BOOKS REFERRED
1.D.Gaur, Criminal Law; cases and material,(3rd edition 1999); Butterworths
Publications, new delhi.
2) P.S.A.Pillai, criminal law, (9th
 edition 2010), Butterworths New Delhi.
3) S.M.A.Qadri, Ahmad Siddique’s criminology, (5th edition 2005), Eastern book
company, Lucknow.
4) R.K.Bag, Supreme Court on criminal law, (3rd edition 2010), Asia law house,
Hyderabad.
5) R.V.Kelkar, Lectures on criminal law, (3rd edition 2002), Eastern book company, new
delhi.
6) Ratanlal and Dhirajlal, the Indian Penal Code, (28th edition 2001), Wadhwa and
company, Nagpur.
7) Iyengar’s comentary on code of criminal procedure 1973,(Act no. 2 of 1974), (2nd
edition), Delhi law house.
8) V.M. Prasad and Manish mohan, Rathanlal and dhirajlal, the code of criminal procedure,
s(21st
 edition), Lexis Nexis
9) D.D. Basu commentary on the constitution of India, (8th edition 2011), Lexis Nexis,
Butterworths Wadhwa
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SOURCES REFFERED
1. www.scconline.com
2. www.indiankanoon.com
3. www.manupatra.com
STATUTES REFFERED
Criminal Procedure Code, 1973
Indian Penal Code, 1860
Indian Evidence Act, 1872.
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STATEMENT OFJURISDICTION

The appellant has approached the High Court of Sarnataka under section 378(4) of the
criminal procedure code 1973, an appeal against the acquittal by invoking the jurisdiction of
this court, upon being aggrieved and dissatisfied by the orders of session court on 30.10.2019.
hence the appellant concede the jurisdiction of the Honorable High Court to deal with this
Petition.

All of which is respectfully submitted

By:
Counsel of Appellant
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STATEMENT OF ISSUES

1. WHETHER THE CONFESSION MADE BY BASAVAN ISADMISSABLE?

2. WHETHER THE ACCUSED CAN BE CHARGED UNDER SECTION 364

READ WITH SECTION 120B OFIPC?
3. WHETHER THE ACCUSED IS GUILTY OFMURDER?
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STATEMENT OF FACTS

1. Nandhana (deceased), a Chartered accountant, was married to Mr. S.N. Jai,an

advocate for ten years and out of the wedlock, a son, Ram, Nandhana was liked by all as
she was soft spoken, plain hearted and generous too.

2. Mohana (Accused No. 1), cousin of Nandhana was her father’s brother’s daughter.She
was married to one Hari Kishore, an engineer. Nandhana and Mohana shared much
amicable relations between them as they had both grown up together. Over theyears,
this sisterly relationship also manifested itself into a fiduciary one whereinNandhana

had lent money to her sister Mohana to help in her catering business, “Well Being Foods Pvt.
Ltd.”. On 12/06/2018, as a part of one such transaction, Mohana , while promising to return
the sum within four months, borrowed a sum of Rs. 20,00,000/-(Rupees Twenty Lakhs) from
Nandhana to invest in her business. Months passed, but there was no repayment by Mohana,
of the borrowed sum,in spite of several reminders and follow-ups. On 31/10/2018, Mohana
convinced Nandhana against the wishes of her husband Jai , for lending her another Rs. 30,
00,000/- (Rupees Thirty Lakhs) for her business promotion and promised to repay it at the
earliest. This series of money lending transactions of Nandhana had almost strained the
relationship of Nandhana and Jai. They had frequent quarrels and Jai had even uttered a
statement to Nandhana that “I am totally

dissatisfied with your behavior and we will end up our matrimonial tie”
3.Given the situation, Nandhana was again left disappointed at the fact that she had not
received any money that was owed to her. At a family dinner one night on 27/3/2019, a
final ultimatum was given to Mohana to repay the money due to them by September
that year as they required it for the purposes of re modelling their house. Furthermorea
heated argument also took place between them, which extended to the point where Nandhana
gave a slap on Mohana’s face in front of the entire family members. Feeling hurt at the insults
and the way she was treated, Mohana decided to set right her revenge. Thus, on 15/05/2019,
Mohana called up Nandhana and requested her to visit her at her residence at
J.V.Towers, Bangalore at 8 pm that day. Mohana mentioned that she was happy that
business had been peaking in recent times. A meeting was fixed and Nandhana
immediately called up Jai and informed him about this meeting. The conversation went
at length and they concluded by saying that they had been too hard on Mohana duringthe
dinner and that she was a lovely person. Few days later, on 10/06/2019, Nandhana ‘s highly
decomposed body was found in the outskirts of the city which forms a part of the area of
a National Highway. It was on the day of 15/05/2019, Nandhana wrapped up her office
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work and left from her office by 7:15 pm.

4.She expressed her concern regarding the money and said that she was hoping to receiveat
least a part of the lent amount considering that Mohana’s business had pickedup.
Nanadhana further added that she would call him up once she was leaving from there.

This was the last call recorded by the phone company that was made from Nandhana
‘s number. It had been half past midnight and Jai had begun to grow worried as
Nandhana had not yet returned home. She would usually inform the where abouts to her
husband, and he knew that something went wrong. He called up Mohana to ask about
whereabouts of Nandhana to which she replied that Nandhana had never reached her
residence at the decided time , so she had thought that their meeting had been cancelled.
Jai, then called up Nandhana’s parents, Usha and Vinod and enquired if Nandhana had
come to their residence which was at Bhim Nagar, Nangalore. Knowing that no one had
heard from Nandhana, her parents were visibly disturbed so the entire family decided to meet
at their residence. It was concluded that this was unusual happening and that a
complaint needed to be filed before the police station. It was at this time that the much silent
Mohana had begun convincing everyone against filing a complaint as Nandhana could have
been stuck up in some important work. She also stated that Nandhana does not like
complaining and reaching a police station as she is highly disciplined. Thus she had started
giving contradictory statements. Not having heard from Nandhana even after twenty four
hours since her disappearance, from 15.05.2019, Jai along with Usha and Vinod filed a
complaint on 16.05.2019. They also informed the police that Nandhana ‘s car, a 2002 model of
the Hyundai i10, silver colour, bearing number KA 11 HZ 30421 which was driven by her was
also missing.

4.The investigation started on 17/05/2019 with the police questioning thefamily

members regarding the last known whereabouts of Nandhana. Jai was considered a suspect
but he was soon ruled out once he established his alibi,. He also told them that the
last person to have possibly seen Nandhana was Mohana, as they had been scheduled
to meet that evening. When the police questioned Mohana and Hari Kishore about their
scheduled meeting with Nandhana, they gave evasive replies and told the police that
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Nandhana never visited them that evening. On 19/05/2019, the police located
Nandhana’s missing car, which had been left abandoned on the Nangalore Highway.
After a thorough search of the car the police forensic team recovered hair like fibers

stuck to the carpet in the boot of the car. These fibers were then sent for examination to the
laboratory. The investigation then led to the office of the deceased wherein the Secretary,
Jiya, was questioned on 20/05/2019. She revealed that Nandhana had once told her that if in
case there would be a day when she does not return for a long period of time and no contact
could be established with her, then in such a situation Jiya was to take the keys of her
office almirah which was given to her, open it and hand over the contents therein to
Nandhana ‘s parents. The investigation then led to Nandhana ‘s parents who revealed the
contents of the file to be a list of all of Nandhana’s important documents such as her Will,
bank deposit receipts etc. one of such documents consisted of the financial transactions
of Nandhana with other people. On the basis of this document the police established that
Mohana was the only person with the strongest motive to eliminate Nandhana. When the
police reached Mohana’s apartment on 25/05/2019, in order to take Mohana into custody
for questioning they discovered that the flat was locked and Mohana and Hari Kishore were
both absconding. The police then took their domestic help, Basavan into custody for
questioning. It was during this interrogation that they found out that Mohana and Hari
Kishore had gone to Bandigarh on 17/05/2019 itself. Soon after the commission of murder,
accused No.1, Mohana who was in great fear, had contacted her school mate and dearest
friend Ms. Prince, a practicing advocate for the legal assistance in future after revealing the

crime. While so, effort was made to reach them but they constantly remained unavailable.
After several hours of questioning Basavan and pressurizing him, he confessed to the
police that he had helped Mohana and Hari Kishore strangulate Nandhana on 15.05.2019.
He added that while Mohana strangulated Nandhana, Hari Kishore and he had pinned her
down and they continued until she had stopped moving. He then helped Hari Kishore wrap
up the body in a carpet and load it in Nandhana’s car. They then drove towards a secluded
forest area and at particular spot in the forest they dumped the body. He further added
that he was willing to cooperate completely with the police in return for a lessersentence.
Basavan then told the police that he would take them to the exact spot where the body had
been buried.
5. As per the information provided by Basavan, the police arrived at the forest area
where the body was alleged to have been dumped by the accused. The police were
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guided to the exact spot by Basavan. The forensic team dug up the area and retrieved
the highly decomposed body of a female in her mid-thirties. There was jewellery worn
by her which was sent for identification. The body was sent to Government Hospital,
Nangalore for a post mortem which concluded that the death was an unnatural death
due to asphyxiation caused by the fracturing of the hyoid bone. The hair onthe
decomposed body was extracted and was then sent for a DNA analysis. Upon comparison
with a sample taken from Nandhana’s hairbrush, it was concluded beyond doubt that the
body was that of Nandhana. The level of decomposition suggested that she been dead
for around one month

6. Taking into consideration the statement of Basavan, the forensic evidence and the
circumstances surrounding the disappearance of Nandhana on the night of 15.05.2019and
her subsequent murder, a First Investigation Report was registered againstMohana,
Hari Kishore and Basavan for murder of Nandhana. Mohana and Hari Kishore were
escorted back to Nangalore. A charge sheet was then prepared in which each of the
accused was charged under the relevant provisions of Nindiana Penal Code. The charge
sheet was filed by the police on 15.06.2019 and the trial was conducted by the Hon’ble
Sessions Court of Nangalore at Nangalore. , Basavan had later been made a prosecution
witness under Sec 306 of Crpc. Later on P.W.1 and P.W.2 turned hostile Prince, the
advocate to whom A1, had revealed the crime deposed before the court. The Sessions court
opined that
the testimony of Adv. Prince would fall under the privileged communication and as the PW 1
& 2 turned hostile, the Hon’ble Sessions Court acquitted Accused No. 1 Nandhana,
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SUMMARY OF THE ARGUMENT

1. WHETHER THE CONFESSION MADE BY BASAVAN IS ADMISSABLE?

It is humbly submitted before the Honorable court that the confession made by the
Basavan is not admissible that there is no evidentiary value for the confession given by
Basavan. There is no direct evidence to link between the confession made by Basavan and
the accused. The confession doesn’t prove that the recovery of the dead body of Nandhana
has connection with the guilty of murder by Mohana and her husband JaiKishore.

2. WHETHER THE ACCUSED CAN BE PUNISHABLE UNDER SECTION 364

READ WITH 120B OFIPC?
It is humbly submitted before the Honorable court that the section 364 kidnapping will not
be attracted in this case as there was no act of abduction took place. As the facts clearly
statesNandhana by herself called her husband jai and informed him that she is going to
Mohana’sresidence which proves she went in her voluntary will and no force has been
induced upon her.Section 120B of IPC that is the punishment for criminal conspiracy will
not be applicable in thiscase because there is no proof to prove the existence of conspiracy.
The agreement between theparties to do an illegal act is the basis of criminal conspiracy
and the agreement has not beenproved here in this case.

3. WHETHER THE ACCUSED IS GUILTY OFMURDER?

It is humbly submitted before the Hon’ble High court the accused no 1.

mohana and accused no 2. hari kishore is not guilty of the murder under section 302 of IPC
as the case has no base on circumstantial evidence, no eye-witness to corroborate the fact
stated by jai that mohana could have seen nandhana before she went missing and strong
motive under section 8 of indian evidence act was not established. The guilty of murder
been committed could only be inferred from the confession otherwise stated but mere
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confession cannot be taken for conviction of person to find guilty under section 302 of IPC.
Hence the crime of murder cannot stand against the accused.

ARGUMENTS ADVANCED

ISSUE I
1. WHETHER THE CONFESSION MADE BY BASAVAN IS ADMISSABLE?

1.1 ADMISSABLITY OF CONFESSION

It is humbly contented before the Honorable High Court that the confession given by Basavan
is not applicable under section 27 read with section 30 of the Indian evidence act 1872.
Section 27 of the Indian evidence act provides when any fact is deposed to as discovered in
consequences of information received from a person accused of any offence, in the custody
of a police officer, so much of such information , whether it amounts to a confession or not,
as relates distinctly to the fact thereby discovered, may be proved. Under this section
not every statement made by a person accused of any offence while in the custody of the
police officer connected with the production or finding of property is admissible. Those
statements only lead to discovery of the property.
In sangili vs state of tamilnadu it has been stated that with the regard to the section 27 of the act
– what is important is the discovery of the material object at the disclosure of the accused
but such disclosure alone would not be automatically led to the conclusion that the offences
was also committed by the accused. In fact there after burden lies on the prosecution to
establish close link between the discovery of the material object and its use in the
commission of the offence. 1
Basavan confessed to the police that Mohana strangulated Nandhana and he and Hari Kishore
helped to dump the body. The police found out the body under the guidance of the Basavan.
Basavan has been made prosecution witness under 306 of the criminal procedure code
306 – Tender of pardon to accomplice, (1) With a view to obtaining the evidence of
any person supposed to have been directly or indirectly concerned in or privy to an
offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan
1
Sangili@sanganathan vs state of tamilnadu S.C (2014)
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Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence,
and the Magistrate of the first class inquiring into or trying the offence, at any stage
the inquiry or trial, may tender a pardon to such person on condition of his making a
full and true dis- closure of the whole of the circumstances within his knowledge
relative to the offence and to every other person concerned, whether as principal or
abettor, in the commission thereof.
Basavan became the accomplice under section 133 of the Indian evidence act which
provides, an accomplice shall be competent witness against the accused person; and a
conviction is not illegal merely because its proceeds upon the uncorroborated
testimony of an accomplice.
It explains it is ultimately upon the court view that ad to the credibility of the evidence
tendered by accomplice. The court can convict on the uncorroborated evidence of the
accomplice but since such witness is not trustworthy, the court should presume that he
is unreliable unless his statement or verified by independent evidence. Section 114 (b)
of Indian evidence act provides accomplice as a unworthy of credit unless he
corroborated in material particulars2. The corroboration of accomplice is two kinds
one the evidence must be trust worthy and it should be proved not only the
commission of the crime but also the complicity of other accused persons in the
crime.
In Ravinder Singh v state of Haryana ,
(i)the approver statement has to be corroborated in material particularly binding
between the crime and the criminal closely.
(ii)The testimony of the accomplice must be considered with more credible evidence.
Though Basavan evidence is corroborated by the evidence of the dead body there is
no such proof that the murder was committed by the accused Mohana and Hari
Kishore. It didn’t bind the crime and criminal closely3. Basavan confessed that
Mohana strangulated Nandhana, he and Hari Kishore helped to wrap the body into the
carpet and loaded into nandhana’s car they drove towards the forest area and
particular spot in the forest they dumped the dead body. But there is no prove that
above mentioned incident was happened. There is no direct evidence to prove that the
accused were punishable under 201 of the IPC, which is causing disappearance of the
evidence and giving false information.

2
AVATAR SINGH, PRINCIPLE OF LAW OF EVIDENCE (23RD edition 2018)
3
Ravinder Singh vs state of Haryana (1975) AIR 856
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2.1 EVIDENTARY VALUE OF THE CONFESSION

Section 30 of the Indian evidence act provides —When more persons than one are
being tried jointly for the same offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved, the Court may take into
consideration such confession as against such other person as well as against the
person who makes such confession. [Explanation.—“Offence”, as used in this section,
includes the abetment of, or attempt to commit the offence.] .
This section says nothing nor it would have been desirable to say anything about the
evidentiary value of the confession of a co accused. All that the section says and was
necessary to say is that such confession may be taken into consideration against all of
them, leaving the weight of the confession to the discretion of the court. Their
lordships of the privy council observed : The confession may be considered by the
court, but the section does not say that the confession amount to proof, clearly there
must be other evidence. The confession is the only one element in the consideration of
all the facts proved in the case; it can be put into the scale and weighed with the other
evidence. In C.B.I v V.C Shukla the court said that a statement by a party to
proceeding amounting to an admission can be proved only against him not against the
other who are being jointly accused with him.4 The effect of the admission is that it
doesn’t constitute a conclusive proof of the fact admitted. Basavan confession
considered as a week confession unless it didn’t prove the evidentiary value of his
statement that Mohana strangulated Nandhana.
In shankaria v state of Rajasthan There are two statements should prove the
evidentiary value of the confession one , the confession should be voluntary, another
it should be true and trustworthy. In our case police pressurized Basavan and took the
confession. The police reached the residence and found out both Mohana and her
husband went to bandigarh. Then they took Basavan and pressurized to give the
confession which is not applicable.5
In Mani vs state of tamilnadu, the discovery is a weak kind of evidence and cannot be
wholly relied upon and conviction in such a serious matter cannot be based upon the

4
Section 30 in Indian evidence act, 1872

5
Shankarai vs state of Rajasthan (1978) AIR 1248
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discovery. Once the discovery fails there would be nothing which would support the
prosecution case.6 Here, even though confession made by Basavan who is domestic
worker of Mohana and the discovery of the dead body on the basis if section 27 of
evidence act but there is no strong evidence that the murder has been done by Mohana
and discovered dead body of Nandhana doesn’t prove the guilt of Mohana. So the
benefit of the doubt should be given to the accused.
The Advocate’s Prince witness provided by the prosecution will come under the
category of Privileged communication. Section 126 of the Indian evidence act,
Professional communications.—No barrister, attorney, pleader or vakil shall at any
time be permitted, unless with his client’s express consent, to disclose any
communication made to him in the course and for the purpose of his employment as
such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the
contents or condition of any document with which he has become acquainted in the
course and for the purpose of his professional employment, or to disclose any advice
given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure.
This section restricts the confession by the lawyer. The conversation between the
attorney and client should not be disclosed without the consent of the client.

2. Whether the accused can be charged under section 364 read with 120B of IPC?
2.1. Kidnapping (SEC 364 of IPC)
Section 364 of IPC deals with kidnapping, in the case of, STATE OF WEST BENGAL
VERSUS MIR MOHAMMED OMAR it has been stated that “Section 364 provides that the
person who abducts in order to murder or to put the person in danger of being murdered said
to be committing the offence punishable under this section”.7 Even if the murder didn’t take
place the abduction with the intention to murder is enough to complete the offence.
In the case of KUNWAR SEN & OTS VERSUS STATE OF UTTAR PRADESH
It has been stated that “It is explicit that kidnapping or abduction is a basic and necessary
ingredient to attract penal provisions of section 364 of IPC. When there is absolutely no

6
Mani vs state of tamilnadu (2008)
7
Mir Mohammed Omar versus State of West Bengal, AIR 1785, 1989.
 MEMORANDUM OF RESPONDENTS
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evidence that deceased was abducted. In such circumstances, the evidence on record does not
satisfy the ingredients of offence under section 364 IPC, particularly when there is absolutely
no evidence that the deceased was done to death by the appellant or co-accused persons”.8
Here in the present case before the bench, the element which is necessary to consider the act
to be kidnapping is abduction with the intention to murder should have taken place which is
not present. When nandhana was in mid-way towards Mohan’s residence, she called and
informed her husband jai about it which by itself makes a voluntary act. It is well established
that no one kidnapped nandhana and so this won’t attract the applicability of section 364 of
IPC. Kidnapping is the act of abduction using force with the intention to murder, in the
present case there is no proof that there was an intention to murder. The two main ingredient
of kidnapping is abduction and the intention to murder where both are absent in this case
which will not attract the applicability of section 364 of IPC.
In the case of CHAKRA PAL SINGH & ANR VERSUS STATE OF U.P, it has been stated
that

A careful perusal of Section 364 IPC reflects that in order to bring home a charge U/S 364
IPC the prosecution must prove:

(i) Kidnapping by the accused,

(ii) that he so kidnapped the person in question in order (a) that such person might be
murdered , or (b) that such person might be so disposed of as to be put in danger of being
murdered.

Or prove for abduction--

(i) That the accused compelled the person to go from one place to another place in question,

(ii) That he so compelled that person by means of force, or that he induced the person to do
so by deceitful means.9

In the present case there is no proper proof that kidnapping was done by the accused and the
proof for abduction is also not available because there is no compulsion from mohana’s side
and nandhana came voluntarily after accepting the invite of mohana.

8
Kunwar Sen & Ots Versus State Of Uttar Pradesh, 12 February, 2020.
9
Chakra Pal Singh & Anr Versus State Of Uttar Pradesh, 27 August, 2019.
 MEMORANDUM OF RESPONDENTS
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It is clear from the facts and stated case laws that the accused charged under 364 of IPC will
not apply as there is no act that has satisfied the ingredients of kidnapping.

2.2. Conspiracy (SEC 120B of IPC)

Section 120A of IPC clearly defines the term criminal conspiracy as when two or more
person agrees to do an illegal act or any act by illegal means.

The person who commits criminal conspiracy is punishable under section 120B of IPC.

In SAJU VERSUS STATE OF KERALA,

S 120-A reveals that a criminal conspiracy envisages an agreement between two or more
persons to commit an illegal act or an act which, it may not be illegal but the same is done or
executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy
is the agreement to commit an offence. In a case where the agreement is for accomplishment
of an act which by itself constitutes an offence, then in that event no overt act is necessary to
be proved by the prosecution because in such a fact situation criminal conspiracy is
established by proving such an agreement.10

In NALINI VERSUS STATE OF D.S.P,

The first condition which is almost the opening lock of that provision is the existence of
“reasonable ground to believe” that the conspirators have conspired together. If the afore said
condition is fulfilled then anything said or done by one of the conspirators becomes
substantive evidence.11

In the present case before the bench as the statement of bhaswan has been stated as a weak
evidence and cannot be taken into consideration without other circumstantial evidence and
the illegal act stated here in the case which is murder has not been proved, no proper evidence
is present to prove that the crime has been committed by the accused. So as the settled rule,
the benefit of doubt has to be given to the accused as no crime stated by the prosecution has
proper evidence to be proved and the accused cannot be charged under the said sections
based on suspicion.

10
Saju Versus State Of Kerala, 15 November, 2000.
11
Nalini Versus State Of DSP, 11 May, 1999.
 MEMORANDUM OF RESPONDENTS
22

2. WHETHER ACCUSED CAN BE CHARGED UNDER SECTION 364 READ WITH

SECTION 120B OF IPC?
2.1. Kidnapping (SEC 364 of IPC)
Section 364 of IPC deals with kidnapping, in the case of, STATE OF WEST BENGAL
VERSUS MIR MOHAMMED OMAR it has been stated that “Section 364 provides that the
person who abducts in order to murder or to put the person in danger of being murdered said
to be committing the offence punishable under this section”.12 Even if the murder didn’t take
place the abduction with the intention to murder is enough to complete the offence.
In the case of KUNWAR SEN & OTS VERSUS STATE OF UTTAR PRADESH
It has been stated that “It is explicit that kidnapping or abduction is a basic and necessary
ingredient to attract penal provisions of section 364 of IPC. When there is absolutely no
evidence that deceased was abducted. In such circumstances, the evidence on record does not
satisfy the ingredients of offence under section 364 IPC, particularly when there is absolutely
no evidence that the deceased was done to death by the appellant or co-accused persons”.13
Here in the present case before the bench, the element which is necessary to consider the act
to be kidnapping is abduction with the intention to murder should have taken place which is
not present. When nandhana was in mid-way towards mohana’s residence, she called and
informed her husband jai about it which by itself makes a voluntary act. It is well established
that no one kidnapped nandhana and so this won’t attract the applicability of section 364 of
IPC. Kidnapping is the act of abduction using force with the intention to murder, in the
present case there is no proof that there was an intention to murder. The two main ingredient
of kidnapping is abduction and the intention to murder where both are absent in this case
which will not attract the applicability of section 364 of IPC.
In the case of CHAKRA PAL SINGH & ANR VERSUS STATE OF U.P, it has been stated
that

A careful perusal of Section 364 IPC reflects that in order to bring home a charge U/S 364
IPC the prosecution must prove:

(i) Kidnapping by the accused,

12
Mir Mohammed Omar versus State of West Bengal, AIR 1785, 1989.
13
Kunwar Sen & Ots Versus State Of Uttar Pradesh, 12 February, 2020.
 MEMORANDUM OF RESPONDENTS
23

(ii) that he so kidnapped the person in question in order (a) that such person might be
murdered , or (b) that such person might be so disposed of as to be put in danger of being
murdered.

Or prove for abduction--

(i) That the accused compelled the person to go from one place to another place in question,

(ii) That he so compelled that person by means of force, or that he induced the person to do
so by deceitful means.14

In the present case there is no proper proof that kidnapping was done by the accused and the
proof for abduction is also not available because there is no compulsion from mohana’s side
and nandhana came voluntarily after accepting the invite of mohana.

It is clear from the facts and stated case laws that the accused charged under 364 of IPC will
not apply as there is no act that has satisfied the ingredients of kidnapping.

2.2. Conspiracy (SEC 120B of IPC)

Section 120A of IPC clearly defines the term criminal conspiracy as when two or more
person agrees to do an illegal act or any act by illegal means.

The person who commits criminal conspiracy is punishable under section 120B of IPC.

In SAJU VERSUS STATE OF KERALA,

S 120-A reveals that a criminal conspiracy envisages an agreement between two or more
persons to commit an illegal act or an act which, it may not be illegal but the same is done or
executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy
is the agreement to commit an offence. In a case where the agreement is for accomplishment
of an act which by itself constitutes an offence, then in that event no overt act is necessary to
be proved by the prosecution because in such a fact situation criminal conspiracy is
established by proving such an agreement.15

14
Chakra Pal Singh & Anr Versus State Of Uttar Pradesh, 27 August, 2019.
15
Saju Versus State Of Kerala, 15 November, 2000.
 MEMORANDUM OF RESPONDENTS
24

In NALINI VERSUS STATE OF D.S.P,

The first condition which is almost the opening lock of that provision is the existence of
“reasonable ground to believe” that the conspirators have conspired together. If the afore said
condition is fulfilled then anything said or done by one of the conspirators becomes
substantive evidence.16

In the present case before the bench as the statement of bhaswan has been stated as a weak
evidence and cannot be taken into consideration without other circumstantial evidence and
the illegal act stated here in the case which is murder has not been proved, no proper evidence
is present to prove that the crime has been committed by the accused. So as the settled rule,
the benefit of doubt has to be given to the accused as no crime stated by the prosecution has
proper evidence to be proved and the accused cannot be charged under the said sections
based on suspicion.

.
3. WHETHER THE ACCUSED IS GUILTY OF THE MURDER?
The Hon’ble Sessions Court had acquitted accused no 1. nandhana and accused no 2.
hari kishore on the basis of evidence, witness and testimony. The submissions that there is
lack of crucial evidence, witness was made by the sessions court for their acquittal. But ,we
taken the following arguments to prove them guilty of murder and it is threefold. One,
circumstantial evidence to prove the offence of murder. Two, evidence to prove the motive of
mohana in eliminating nandhana. third, accused caused the murder under section 302 I

3.1 CIRCUMSTANTIAL EVIDENCE TO PROVE MURDER

The salient features of circumstantial evidence

1. The circumstance from which conclusion of guilt is drawn must be fully established
2. The facts established should be consistent only with the hypothesis of the guilt of the
accused
3. The circumstance should be of conclusive nature
4. Every possible hypothesis should be excluded except the one to be proved

16
Nalini Versus State Of DSP, 11 May, 1999.
 MEMORANDUM OF RESPONDENTS
25

5. There must be chain of evidence so complete as not to leave any reasonable ground
for the conclusion and must show in all human probability the act must have been
done by the accused17

It has been stated that the proved pieces of circumstantial evidence should not be on any
hypothesis18.

In the present case, the phone call made by nandhana to her husband jai before went missing
and phone company’s record only affirms the point that she is mid-way in reaching the A1
residence but there is no evidence or eye witness to corroborate the fact she had actually
reached the accused home as had said in the phone call.

It is submitted that there must be chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the accused and must
show that in all human probability the act must done by the accused19. The court said in
dealing with circumstantial evidence the rules specially applicable to such evidence must be
borne in mind. In such cases there is always the danger that suspicion may take the place of
legal proof.20

Here, the conduct of mohana after nandhana’s disapperance in convincing everyone against
filing the complaint and had started giving contradictory statements been questioned

Section 8 of indian evidence act states Any fact is relevant which shows or constitutes a
motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference
to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and
the conduct of any person an offence against whom is subject of any proceeding, is relevant,
if such conduct influences or is influenced by any fact ins issue or relevant fact, and whether
it was previous or subsequent thereto.21

It is submitted that the conduct of the party must have been in nexus with crime committed. It

17
Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984
Equivalent citations: 1984 AIR 1622, 1985 SCR (1) 88

18
Mohibur Rahman And Anr. vs State Of Assam on 21 August, 2002
19
Sk. Yusuf vs State Of West Bengal on 14 June, 2011
20
Hanumant vs The State Of Madhya Pradesh on 23 September, 1952
21
indian evidence act, 1872
 MEMORANDUM OF RESPONDENTS
26

thus must form part of evidence as regards his conduct either preceeding, during or after the
commission of offence22. Here the convincing of deceased husband and giving contradictory
statements for such doesn’t corroborate with the subsequent conduct established under
section 8 of the act as such convincing and contradictory statement don’t have much
relevancy to the facts in issue.

The observation was made when appealant’s conduct in absconding can also be relied upon
by saying mere absconding itself does not necessarily lead to a firm conclusion of guilty
mind.fear of being wrongly suspected, he tries to keep out of the way cannot be considered to
be necessarily evidence of a guilty mind attempting to evade justice. 23abscondanance by a
person against whom FIR has been lodged, having an apprehension of being apprehended by
the police cannot be said to be unnatural.24

In the present case, when the police had reached mohana’s home on 25.05.2019 for taking her
into custody and questioning they found the flat was locked and mohana and harikishore were
absconding.it was found that both went to bandigarh on 17.05.2019 itself. Such absconding
doesn’t necessarily infer the crime be committed by them. Reliance on, it must be noted that
the act of absconding shows the guilt of the accused only to a certain extent because even
innocent persons tend to escape due to the instinct of self-preservation. So absconding of
accused 1 mohana and 2 harikishore doesn’t amount to guilty of offence committed.

The husband when police investigated him on 17.05.2019 had told mohana could have been
possibly be the last person have seen nandhana.

Last seen is itself a poor evidence to try conviction, this was taken as a prinicipal fact to
prove the conviction. It is said that from the evidence on record there is no eye-witness of
incident and no evidence of last seen of accused with deceased. Thus the unreliable evidence
of last seen cannot be treated as an evidence so as to connect and convict under section 302 of
IPC25. In the present case there was no eye- witness to have last seen nandhana and with
mohana and no evidence that nandhana had really reached mohana’s home.

The last seen not relate to direct but circumstantial evidence, so to make conviction the chain
22
Vikramjit Singh @ Vicky vs State Of Punjab on 24 November, 2006
23
Matru Alias Girish Chandra vs State Of Utttar Pradesh on 3 March, 1971
24
rahman v state of up. AIR 1972 SC 110
State Of M.P Through C.B.I., Etc vs Paltan Mallah, Etc on 20 January, 2005 Bipin Kumar Mondal vs State Of
West Bengal on 26 July, 2010
25
Mr. Mridul Jain vs Unknown on 17 April, 2015
 MEMORANDUM OF RESPONDENTS
27

of circumstantial evidence should be so complete and finger unerringly should point towards
the guilty of accused26.

It is said if any conviction is on circumstantial evidence then in such case there should be no
room for doubt and hypothesis and be proved beyond any reasonable doubt27

It is settled principle of criminal jurisprudence that more serious the offence, the stricter the
degree of proof, since higher degree of assurance is required to convict the accused.

The settled law is that the circumstance from which the conclusion of guilt is drawn should
be fully proved and such circumstance must be conclusive in nature. Moreover all the
circumstances should be complete forming a chain without a gap left.28

It is submitted that when a case depends upon the conclusion drawn from the circumstance
the cumulative effect of the circumstance must be such as no negative the innocence of
accused and bring home the offences beyond any reasonable doubt29

The presen case has no circumstantial evidence as there is no guilty could be inferred from
the facts.

3.2 EXISTENCE OF MOTIVE

To buttress the argument that factum of motive assumes importance in case of circumstantial
evidence, if it is established from the record that accused has the strong motive and also
opportunity to commit the crime30.

Section 8 of indian evidence act states that

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference
26
Arvind @ Chhotu vs State on 10 August, 2009
27
Md. Younus Ali Tarafdar v/s The State of West Bengal
28
Nizam and Another v State of Rajasthan on 04 September 2015

29
Bhagat Ram vs State Of Punjab on 9 February, 1954
30
Arjun Marik vs State Of Bihar on 2 March, 1994
 MEMORANDUM OF RESPONDENTS
28

to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and
the conduct of any person an offence against whom is subject of any proceeding, is relevant,
if such conduct influences or is influenced by any fact ins issue or relevant fact, and whether
it was previous or subsequent thereto.31

Here, nandhana had lent Rs. 20,00,000 on 12.06.2018 to one mohana for her business and on
31.10.2018 another 30,00,000 was given to mohana promising to repay it at earliest. But
mohana didn’t made the payment. They even had fights for such. But the accused 1
mohanahadnt anywhere made an incriminating statement for non repaying the amount and on
the day of fateful night she informed nandhana that her business is in good run and called her
up only to settle the issues.

As it is said since the person knew the other one and his circumstance before giving him loan
and held mere breach of promise to return the amount doesn’t not constitute criminal breach
of trust32. So here lies no strong motive to prove mohana guilty of murder.

Normally behind every criminal act, there is motive and its imperative for investigating
agency tomake all efforts in ascertaining motive on part of accused but failure of the same in
case where the prosecution has otherwise proved its case beyond any shadow of doubt based
on cogent and convincing evidence, the accused cannot get benefit of motive aspect proved
by prosecution.

The complaint was filed on 16.05.2019 a day after she went missing and her husband had
informed the police mohana could be last person to see nandhana during investigation.

Supreme court had said minor discrepencies are not to be given undue emphasis and evidence
is considered from point of trustworthiness. If an ommission or discrepancy goes to matter
and defence can take advantage of such inconsistencies. Such ommission should create
serious doubt about truthfulness or creditworthiness of witness33. Here the witness, jai has
said a call about meeting mohana was made by nandhana but she didn’t actually reached the
home. And later part of investigation jai made a remark of mohana could be the last person to
have seen nandhana. Such discrepancies on his side make him unreliable to trust that
nandhana had seen mohana.

31
indian evidence act, 1872
32
Satishchandra Ratanlal Shah vs State Of Gujarat on 12 April, 2018
33
Pranab @ Kuti Biswas vs State Of West Bengal on 25 September, 2006
 MEMORANDUM OF RESPONDENTS
29

3.3 ACCUSED NOT CAUSED THE DEATH

Section 300 states that

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death, or— 2ndly.—If it is done with the
intention of causing such bodily injury as the offender knows to be likely to cause the death of
the person to whom the harm is caused, or— 3rdly.—If it is done with the intention of causing
bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or— 4thly.—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.

Section 302 of the act

Whoever commits murder shall be punished with death or 1 [imprisonment for life], and shall
also be liable to fine.34

In the present case the post martem report suggest that injury in the body of nandhana is the
result of the strangulation and the hair sample had revealed the body is of nandhana. But
there isnt any corrobarative evidence to suggest that it was mohana and harikishore who
strangulated and caused the murder. Since confession is the only relevant fact to the murder
the onus is on the defence to prove accused didn’t commit the murder. As had dealt in issue 2
it is clear such confession made by housemaid basvan is inadmissable.

This confession cannot be taken into consideration as against Ramachandra and Hajari to
import knowledge of the factum of murder. 35 It would be unsafe to convict the accused
under section 302 of indian penal code on the confession alone without any corroboration
unless you are completely satisfied that the matters contained in the retracted confession
are true.36 It is established law that suspicion, however strong, cannot take place of the
34
indian penal code
35
Ram Chandra Sahu And Ors. vs The State on 20 March, 1962
36
Abdul Khan vs Emperor on 18 February, 1935
 MEMORANDUM OF RESPONDENTS
30

positive proof and cannot be made the basis of conviction. 37 Court was of the view that there
were serious gaping holes in the prosecution story. The matter was dealt in a point-wise
manner. Firstly, the last seen theory was unacceptable because the there was a time gap of
over five hours between last seen and the death of the deceased. Moreover, undigested food
was found in the intestines of the deceased in the post-mortem report; there was no record as
to when, where and with whom the deceased had his last meal. Secondly, the blood on the
knife which was recovered from the bushes did not match with the blood group of the
deceased. Thirdly, the fact that the appellant went missing and switching off his mobile phone
was the only fact that raised suspicion of his involvement in the crime. Fourthly, the
independent witness involved in recovery of the clothes allegedly of the appellant did not
support the recovery during his examination and turned hostile. Lastly, as to the motive for
murder, the Court observed that in Indian culture, the relationship between a sister-in-law and
brother-in-law is known to evoke playful and fun-filled conversations. Even the appellant
would have been aware of the fact. Even if he did not appreciate such interactions between
his wife and the deceased, there was no immediate provocation prior to the murder to trigger
such an act. In light of the above, the Court held that the appellant deserved the benefit of
doubt.38

In present case the “serious gap holes” as under

1. The last seen theory was unacceptable because there wasn’t any eye witness or
evidence to prove mohana could be the last person possibly to have seen nandhana
2. Nothing had happened in relate to recovery of evidence in relate to the facts in issue
3. The fact that accused went absconding is not sufficient to hold them guilty
4. The case here don’t have a strong motive to establish that mohana had committed
murder of nandhana
5. The facts of the case don’t form the chain of circumstantial evidence

Hence, high court should uphold the order of acquittal by sessions court and dismiss the
appeal

37
Abdul Rahman v. State of Haryana, 2019 SCC OnLine P&H 351, decided on 01-04-2019
38
Dinesh Dass v. State (NCT of Delhi),2018 SCC OnLine Del 10970, dated 29-08-2018
 MEMORANDUM OF RESPONDENTS
31

PRAYER FOR RELIEF

Wherefore in the lights of the issues raised, arguments advanced and authorities cited, it
is humbly prayed that the Hon’ble High Court may pleased to hold, adjudge and declare

1. Uphold the acquittal order of the Hon’ble Sessions Court

2. That the appeal against accused has no substantial grounds and to dismiss the same.

The court may make any other order as such it deems fit in terms of justice, equity and
good conscience

And for this act of kindness, the respondent shall as duty bound ever humbly pray.

All of which is humbly prayed

S/d_________________________

Counsel for the Respondent