BEFORE THE HON’BLE SUPREME COURT OF INDIA

(THE APPEAL FILED UNDER SECTION 374 OF THE CRIMINAL PROCEDURE CODE, 1973)

CRIMINAL APPEAL NO. ___/2006

JOYDEEP NEOGI @ BUBAI

….APPELLANT

VERSUS

STATE OF WEST BENGAL

….RESPONDENT

MOST RESPECTFULLY SUBMITTED TO THE HONOURABLE

JUSTICES OF THE SUPREME COURT OF INDIA

SUBMISSIONS ON BEHALF OF THE RESPONDENT

 MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................3

LIST OF ABBREVIATIONS.................................................................................6

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

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

STATEMENT OF ISSUES...................................................................................9

SUMMARY OF ARGUMENTS...........................................................................10

ARGUMENTS ADVANCED................................................................................11

I. Whether the Evidence adduced by the Respondent is enough to uphold

conviction?

II. Whether the Accused are guilty as charged?

PRAYER.................................................................................................................26

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INDEX OF AUTHORITIES
LIST OF CASES
1. A. Jayaram and An r. v. State of AP, AIR 1995 SC 2128
2. Abdul Kadar (1963) 65 Bom LR 864
3. Abdul Kadir, (1880) 3 All 279 (FB)
4. Ameer Khan (1871) 17 WR (Cr) 15 (FB)
5. Annappa Bharamganda (1907) 9 Bom LR 347
6. Atley AIR 1955 SC 80
7. Babu v State of Kerala, JT 2010 (8) SC 560:2007 AIR SCW 5105
8. Bakhshish Singh v State of Punjab AIR 1971 SC 2016
9. Barsay E G AIR 1961 SC 1762
10. Bheru Singh v. State of Rajasthan, (1992) 2 SCC 467
11. Bimbadhar Pradhan AIR 1956 SC 469
12. Bimbadhar Pradhan AIR 1956 SC 469
13. Brij Lal v Prem Chand AIR 1989 SC 1661
14. C. Chenga Reddy v State of A.P. (1996) 10 SCC 193
15. Chikkarange Gowda AIR 1956 SC 731
16. Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1
17. Dalmia R K v. Delhi Administration AIR 1962 SC 1821
18. Deonandan Dusadh v. King Emperor, (1928) 7 Pat 411
19. Gurcharan Singh AIR 1956 SC 460
20. Gurdatta Mal AIR 1965 SC 257
21. Hukam v State AIR 1977 SC 1063
22. Jamnadas, (1963) 1 Cri LJ 433
23. Janar Lal Das v. State of Orissa, 1991 (3) SCC 27
24. K. Purnachandra Rao, 1975 Cri.L.J. 1671
25. Kamal Kishore v. State (Del. Admin.), 1997 (2) Crimes 169 (Del)
26. Kartar Singh v. State of Punjab, 1994 CrLJ 3139
27. Kartik Sahu v State of Orissa 1994 Cri.L.J. 102 (Ori)
28. Kehar Singh AIR 1988 SC 1883
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29. King v Brisse (1803) 4 East 164, 171

30. Krishnan v State represented by Inspector of Police,(2008) 15S SCC 430;
31. Laxman v. State of Maharashtra, AIR 1974 SC 1803
32. Madegowda vs Unknown, AIR 1957 Mys 50
33. Mahesh Gonnade v. State of Maharashtra, AIR 2008 SCW 4231
34. Malan AIR 1960 Bom 393
35. Matuki Misser, (1885) 11 Cal 619
36. Memon Mohmad (1958) 61 Bom LR 715
37. Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
38. Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
39. Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
40. Mussammat Aishan Bibi v. The Crown, (1933) 15 Lah 310
41. Nathulal AIR 1966 SC 43
42. Nirpal Singh v.State of Haryana, (1977) 2 SCC 131
43. Padam Pradhan v State 1982 Cri.LJ. 534
44. Paramhansa v. State of Orissa, AIR 1964 Ori 144
45. Quinn v. Leatham (1901) AC 495, 528
46. Raghubir Singh AIR 1987 SC 149
47. Rajinder Kumar AIR 1966 SC 1322
48. Ram Narain AIR 1973 SC 11881 Halsbury‟s Laws of England, (4th edn.), vol. 11, para 58;
p.44.
49. Ram Singh v. State of HP 1997 Cri LJ 1829 (SC)
50. Ramachandra v. State of Kerala, 2009 Cri LJ 168

STATUTES

1. The Indian Penal Code, 1860

2. The Indian Evidence Act, 1872
3. The Code of Criminal Procedure, 1973

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WEBSITES

1. http://www.manupatrafast.com
2. www.scconline.com
3. http://www.judis.nic.in

DICTIONARIES

BLACK’S LAW DICTIONARY, 1382 (10th ed. 2014)

BOOKS
1. Halsbury’s Laws of England, (4th edition)
2. Modi‟s Medical Jurisprudence and Toxicology, (23rd Edition)
3. Ratanlal and Dhirajlal, The Indian Penal Code, (33rd edition)
4. Ratanlal and Dhirajlal, The Law of Evidence, (26th Edition)
5. Sarkar, Law of Evidence, (17th Edition)
6. Sarkar, The Code of Criminal Procedure, (11th edition)

LEXICON

1. Aiyar, P Ramanathan, The Law Lexicon, (2nd ed 2006.)

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LIST OF ABBREVIATIONS

Abbreviation Expansion
§ Section
¶ Paragraph
Act The Indian Evidence Act,
18872
AIR All India Reporter

Code The Indian Penal Code, 1860

Ed. Edition

Hon'ble Honorable

Ltd. Limited

Ors. Others

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

U.O.I Union of India

v. Versus

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STATEMENT OF JURISDICTION

Joydeep Neogi, the Appellant, has approached the Hon’ble Supreme Court of India
under § 374(2) of the Code of Criminal Procedure, 1973, which reads as follows:
‘S.374. Appeals from conviction
1. Any person convicted on a trial held by a High Court in its extraordinary
original criminal jurisdiction may appeal to the Supreme Court.
2. Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other Court in which a sentence of
imprisonment for more than seven years has been passed against him or against
any other person convicted at the same trial may appeal to the High Court.
3. Save otherwise provided in sub-section (2), any person,
a. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions
Judge or Magistrate of the first class, or of the second class, or
b. sentenced under section 325, or
c. in respect of whom an order has been made or a sentence has been passed under
section 300 by any Magistrate, may appeal to the court.’

The respondents humbly submit to the jurisdiction of this Hon’ble Court.

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STATEMENT OF FACTS

1. On November 06, 2001 Ranadip (hereinafter referred to as “the deceased”), the

son of Kr Mallick Gupta was playing on a nearby playground of his house and as
he did not return even after the usual hour, his mother and other relatives started
searching for him, but without any result.
2. At about 1.30 p.m., an anonymous telephone call was received by a neighbour
wherefrom information was gathered about wrongful detention of the deceased.
3. When the deceased’s father (hereinafter referred to as “de facto complainant”)
returned from his office, he also made a search for his son, but without any result
and ultimately the complaint was lodged with the local police station alleging the
kidnapping of Ranadip with some dishonest intention.
4. On receipt of the FIR of de facto complainant, Sub-Inspector Laskar of
Alipurduar Police Station took up the investigation and on November 06, 2001
itself and the present appellants were detained for a brief period in connection
with the case started on the basis of a written complaint of de facto complainant,
but subsequently on the same date the appellants were released.
5. On November 16, 2001 after getting information about locating the dead body of
the deceased at a place near Buxer forest, on the basis of information given by
appellant Debasish @ Sona and another accused Raju. On getting information
about involvement of other persons in the murder of Ranadip and removal of his
dead body, all the seven persons including the present appellants were arrested on
November 16, 2001 and thereafter after recording the statement of witnesses, on
receipt of post-mortem report of Ranadip, recovery of certain incriminating
articles at the instance of the appellants and on the basis of confessional statement
of accused Choton Sarkar, Sub-Inspector Laskar being the investigating officer of
the case found a strong prima facie case against seven persons including the
appellants under Sections 363/364/302/201/34 of the Indian Penal Code
(hereinafter referred as “IPC”) and on completion of investigation, charge-sheet
was accordingly submitted against seven persons including the present appellants.
The accused persons abjured guilt and therefore trial was held in the Trial Court.
6. The Division Bench of the Calcutta High Court upheld the conviction of the
appellants and the order of conviction was modified and the appellants were
convicted for the offences under Sections 364, 302 and 201 r/w Section 34 of IPC.
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STATEMENT OF ISSUES

WHETHER THE EVIDENCE ADDUCED BY THE RESPONDENT IS

ENOUGH TO UPHOLD CONVICTION?

II

WHETHER THE ACCUSED ARE GUILTY AS CHARGED?

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SUMMARY OF ARGUMENTS

WHETHER THE EVIDENCE ADDUCED BY THE RESPONDENT IS

ENOUGH TO UPHOLD CONVICTION?

It is humbly submitted before the Hon’ble Court that the evidence in the present
case sufficiently established the guilt of the accused for the abetment,
disappearance of evidence and the kidnapping for the murder of Ranadip. The
statement of the apellant Debasish @ Sona has been corroborated by the recovery
of certain incriminating material at the place where the dead body was found.
The chain of circumstantial evidence as formed by the prosecution has been
established beyond all reasonable doubt that the accused are guilty as charged.

II

WHETHER THE ACCUSED ARE GUILTY AS CHARGED?

It is humbly submitted before this Hon’ble Court that the accused are guilty of the
offences of murder, kidnapping, abetment and causing disappearance of evidence.
The accused commited the murder of Ranadip, the murder was committed and
following this the body was dumped at a place near Buxer forest. The circumstantial
evidence forms a complete chain, link by link, to establish the same. Hence it is
proven beyond a reasonable doubt that the crime of Murder was indeed committed by
the accused in the case at hand.

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ARGUMENTS ADVANCED

I. WHETHER THE EVIDENCE ADDUCED BY THE RESPONDENT IS

ENOUGH TO UPHOLD CONVICTION?

1. That Parts of Accused statements NOT amounting to Confession can

be Admitted as Evidence
A. All extra-judicial confessions excluded from evidence
Section 25 of the Evidence Act excludes from evidence, all statements
amounting to confession, made to a police officer by an accused person. The
section reads as follows:

S.25: Confession to a police officer not to be proved: No confession made to a

police officer shall be proved as against a person accused of any offence.

This section aims to zealously protect the accused against becoming the victim
of his own delusion or the mechanization of others to self-incriminate in crime.
The confession, therefore, is not received with an assurance, if its source be
above and free from the remotest taint of suspicion. The mind of the accused
before he makes the confession must be in a state of perfect equanimity and
must not have been operated upon by fear or hope or inducement.1

This section excludes all statements of incriminating nature made to a police

officer whether made before or after becoming an accused person.2

S.25 absolutely excludes from evidence against the accused a confession made
by him to a police officer under any circumstances (while in custody or not).
The statement given by an accused involving himself in the crime and also
implicating a third person cannot be legally proved in the court, as it will be
conflicting under ss. 25 and 26.3

B. S.25 is the rule whereas; S.27 is the exception to this rule.

1
Kartar Singh v. State of Punjab, 1994 CrLJ 3139.
2
Bheru Singh v. State of Rajasthan, (1992) 2 SCC 467
3
Kamal Kishore v. State (Del. Admin.), 1997 (2) Crimes 169 (Del)
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Section 27 reads as follows:

S.27: How much of information received from the accused may be proved:
Provided that, when any fact is deposed to as discovered in consequence 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.

Although, confession by an accused to a police officer or when in police

custody is inadmissible, statements in the confession, which are relevant for
the purpose of s.27, are admissible.

There are two essential conditions for the applicability of section 27:

i. Accused of an offence
The person giving information must be accused of any offence. Earlier, it was
held that the statement must be of a person who was then an accused. If at the
time when the confession was made, the person making it was an accused, the
statement would be admissible.4 Bombay High Court is of a dissenting view of
this matter and has held that “accused of an offence” would include a person
who subsequently becomes an accused. He either may be an accused at the time
of making the confession or may subsequently become an accused.5

ii. He must also be in police custody.

The word “custody” in this section does not mean physical custody by arrest.6As
soon as an accused or suspected persons comes into the hands of a police-officer,
he is, in the absence of clear evidence to the contrary, no longer at liberty, and is
therefore in custody within the meaning of ss.26 & 27.7 Even indirect control
over the movements of suspects by the police would amount to “police custody”.8

4
Deonandan Dusadh v. King Emperor, (1928) 7 Pat 411
5
Memon Mohmad, (1958) 61 Bom LR 715
6
State of Bihar v. Madanlal, AIR 1967 Pat 63
7
Mussammat Aishan Bibi v. The Crown, (1933) 15 Lah 310
8
Paramhansa v. State of Orissa, AIR 1964 Ori 144
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C. Parts of confession, admissible under this section:

Further, S.25 excludes a confession to the police, but not any other matter
unconnected with the confession, e.g. a statement by the accused of his presence
at the scene of occurrence of the ill-will that existed against the deceased. 9 The
Court on trivial grounds cannot brush statements admissible under S.27 of the
Evidence Act, leading to discovery, aside.10

As regards discovery of evidence, Section 27 requires that only statements

made by the accused that lead to a subsequent discovery are admissible as
evidence.
Requirements of this section are:11

i. Discovery Must be consequent

ii. Must Not Be Within The Knowledge Of The Police
iii. Information Must Lead To Discovery Of Fact.
iv. Must Be In The Knowledge Of The Accused
v. Information Must be Distinctly Connected with the discovery

2. That the Chain of Circumstantial Evidence is Fully Established

It is a well settled principle that where the case is mainly based on

circumstantial evidence, the court must satisfy itself that various circumstances
in the chain of evidence should be established clearly and that the completed
chain must be such as to rule out a reasonable likelihood of the innocence of the
accused.12

When even a link breaks away, the chain of circumstances gets snapped
and other circumstances cannot in any manner establish the guilt of the
accused beyond all reasonable doubts.13 In the absence of clear and
cogent evidence pointing to the guilt of the accused, the proof of motive
9
In Re: Madegowda vs Unknown, AIR 1957 Mys 50
10
Nirpal Singh v.State of Haryana, (1977) 2 SCC 131
11
Sarkar, Law of Evidence, 17th Edition
12
Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
13
Janar Lal Das v. State of Orissa, 1991 (3) SCC 27
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however adequate cannot by itself sustain a criminal charge.14

When attempting to convict on circumstantial evidence alone the Court must be
firmly satisfied of the following five things.15

a) The circumstances from which the conclusion of guilt is to be drawn should

be fully established. The circumstances must be or should and not may be
established;
b) The facts so established should be consistent only with the hypothesis of the
guilt of the accused, that is to say, they should not be explained on any other
hypothesis except that the accused is guilty;
c) The circumstances should be of a conclusive nature and tendency;

d) They should exclude every possible hypothesis except the one to be proved;

e) There must be a 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 have
been done by the accused.
These five golden principles constitute the “Panch Sheel” of the proof of a case
based on circumstantial evidence.
In drawing the inference the true rule of law, which is to be applied, is the rule,
which requires that guilt be not to be inferred unless that is the only inference,
which follows from the circumstances of the case, and no other innocuous
inference can be drawn.

Supreme Court of India in Bakhshish Singh v State of Punjab16, “in a case

resting on circumstantial evidence, the circumstances put forward must be
satisfactorily proved and those circumstances should be consistent only with
the hypothesis of the guilt of the accused. Again those circumstances should
be of a conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved.” There must be
a 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 have been done by the accused,
14
Padam Pradhan v State, 1982 Cri.LJ. 534
15
Sharad Bircichand Sarda v State of Maharashtra, AIR 1984 SC 1622
16
AIR 1971 SC 2016:1971 CriLJ 1452:(1971) 3 SCC 182
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the evidence produced by the respondent-prosecution should be of such

nature that it makes the conviction of the accused sustainable.17

In the instant case:

A. Circumstances are fully established

The circumstances from which the conclusion of guilt is to be drawn should

be fully established. The circumstances must be or should and not may be
established. It is contended that there is a well-established chain of
circumstantial evidence proved by the respondent-prosecution.

B. Circumstances are consistent with the hypothesis of the guilt of only the
accused. The facts so established should be consistent only with the hypothesis
of the guilt of the accused; that is to say, they should not be explained on any
other hypothesis except that the accused is guilty. In cases dependent on
circumstantial evidence, in order to justify the inference of guilt, all the
incriminating facts and circumstances must be incompatible with the innocence
of the accused or the guilt of any other person and incapable of explanation
upon any other reasonable hypothesis than that of his guilt. 18The facts taken as a
whole lead to only one inference, i.e, the accused are guilty.

C. Circumstances are of a conclusive nature

The circumstances should be of a conclusive nature and tendency. In a case

based on circumstantial evidence the settled law is that the circumstances
from which the conclusion of guilt is drawn, should be fully proved and such
circumstances must be conclusive in nature.19 In the given case, the
circumstances pointed out by the Respondent-prosecution are conclusive in
nature.

D. Other hypotheses not reasonably possible

Any other hypothesis except the one to be proved, provided by the Appellants,
that is imaginary and trivial, cannot be the basis of an acquittal. The effort of

17
State of Uttar Pradesh v Satish, (2005) 3 SCC 114:AIR 2005 SC 1000
18
Hukam v State, AIR 1977 SC 1063
19
C. Chenga Reddy v State of A.P, (1996) 10 SCC 193
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the criminal court should not be to prowl for imaginative doubts.20 The
circumstances must be complete and conclusive to be read as an integrated
whole and not separately and must indicate guilt of the accused with certainty.21

E. Chain of circumstances is complete

There must be a 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 have been done by the
accused.

II. WHETHER THE ACCUSED ARE GUILTY AS CHARGED BY THE

20
State of Rajasthan v. Tej Ram, (1999) 3 SCC 507
21
Kartik Sahu v State of Orissa, 1994 Cri.L.J. 102 (Ori)
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RESPONDENT- PROSECUTION?

It is humbly contended before this Hon’ble Court that the accused are guilty of
the offences that they have been convicted under, namely the charges of
abetment (1), Kidnapping for murder (2) and causing disappearance of
evidence (3). Further, the Respondent-Prosecution has sufficiently established
the guilt of the accused beyond all reasonable doubt (4).

1. The Accused are guilty of Abetment

Sec 107 of the Indian Penal Code, 1860 enumerates abetment. Abetment is
constituted
1) By instigating a person to commit an offence; or

2) By engaging in a conspiracy to commit it; or

3) By intentionally aiding a person to commit it. 22

A. Combination and Agreement

“Conspiracy” consists in a combination and agreement by persons to do some

illegal act or to effect a legal purpose by illegal means. So long as such a design
rests in intention only, it is not indictable. When two agree to carry it into
effect, the very plot is an act itself, and the act of each of the parties, promise
against promise actus contra actum, capable of being enforced, if lawful,
punishable if for a criminal object or for the use of criminal means.
i. Proof lies in inference and circumstantial evidence

Inference
And so far as proof goes, conspiracy is generally a matter of inference,
deduced from certain criminal acts of the parties accused, done in pursuance of
an apparent criminal purpose in common between them.23
Circumstantial Evidence
Conspiracy is a fact, which even in a criminal case can be inferred from
22
Brij Lal v Prem Chand AIR 1989 SC 1661
23
King v Brisse (1803) 4 East 164, 171
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circumstantial or oral evidence. A conspiracy may be proved by other than oral

evidence: by surrounding circumstances and the conduct of the accused both
before and after the alleged commission of the crime. 24
ii. Abetment by Conspiracy

In order to constitute the offence of abetment by conspiracy, there must be a

combining together of two or more persons in the conspiracy, and an act, or
illegal omission must take place in pursuance of that conspiracy and in order to
the doing of that thing. It is not necessary that the abettor should concert the
offence with the person who commits it. It is sufficient if he engages in the
conspiracy in pursuance of which the offence is committed.25Where the parties
concert together and have a common object, the act of one of the parties done in
furtherance of the common object and in pursuance of the concerted plan is the
act of the whole.26
iii. Abetment by Aid

A person abets by aiding, when by any act done either prior to, or at the time
of, the commission of an act, he intends to facilitate, the commission
thereof.27 Intentional aiding and active complicity is the gist of the offence of
abetment under the third paragraph of Sec 107.28

Abetment may take place at the time or even prior to the commission of the
offence if a person facilitates the commission of such an offence. He can be
said to aid the doing of the act, which takes place.29

2. The Accused are guilty of Murder

It is humbly contended that the Hon’ble Sessions Court correctly held the
Accused as guilty of murder of Ranadip under Section 302 read with
Section 34 of IPC. Section 302 read with Section 34, IPC envisages
24
Annappa Bharamganda (1907) 9 Bom LR 347
25
Explanation 5 to Sec 108
26
Ameer Khan (1871) 17 WR (Cr) 15 (FB)
27
Shri Ram AIR 1975 SC 175
28
Ibid at 176 (AIR)
29
Malan AIR 1960 Bom 393
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commission of murder by two or more people in furtherance of a common

intention. Section 300 of IPC gives the definition of murder and
enumerates the ingredients of the offence.

A person is guilty of murder if he intentionally causes the death of a person or

causes such bodily injury as he knows, is likely to cause death of that person or
causes such bodily injury, which in the ordinary course of nature results into
death or commits an act so dangerous that it must, in all probability cause death
of that person.30

Section 34 contemplates the doing of an act by several persons in furtherance of

common intention. The constructive liability under this section would arise only
if two conditions are fulfilled:

a) There must be common intention to commit the crime; and

b) There must be participation by all the persons in doing such act in

furtherance of that intention.
If these two ingredients are established all the accused would be liable for
the said offence.31
The leading feature of Sec 34 is the element of participation in action. 32 It is the
essence of this section that the person must be physically present at the actual
commission of the crime. Criminal sharing, overt or covert, by active presence
or by distant direction, making out a certain measure of jointness in the
commission of the act is the essence of this section.33 In order to convict persons
vicariously under Sec 34 it is not necessary to prove that each and every one of
the accused had indulged in overt acts. Even so, there must be material to show
that the overt act or acts of one or more of the accused was or were done in
furtherance of the common intention of the accused.34 A person may be
“constructively liable” for acts not committed by him by reason of Sec 34.
The terms actus reus and mens rea come from “Actus non facit reum nisi mens
sit rea”, which literally means “an act does not make a person guilty unless
mind is also guilty”. The “Burden of Proof” lies on the prosecution to prove the
30
Section 300, IPC
31
Gurdatta Mal AIR 1965 SC 257
32
Chikkarange Gowda AIR 1956 SC 731
33
Tukaram Ganpat Pandare AIR 1974 SC 514
34
Rambilas Singh AIR 1989 SC 1593
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guilt of the accused beyond reasonable doubt.

The Respondent-Prosecution contends that actus reus and mens rea had been
proven successfully, thus the Accused is guilty of murder of the deceased.

B. Actus reus

Actus reus is any wrongful act35. Thus, in a case of murder, actus reus would
be the physical conduct of the accused that causes death of the victim.
In the instant case, it is contended that the actus reus had been established by
way of Accused’s behavior on several instances, circumstantial evidence, and
discovery of crime articles .

i. Statement by Accused

The Accused’s statement as a whole is inadmissible under Section 25 of the

Indian Evidence Act, 1872, but reliance can be placed on those parts of the
statement, which are corroborated by other evidence. It is contended that in the
instant case, parts of the confessional statement of Accused, which have been
corroborated by other evidence, prove the actus reus of the accused.

ii. Circumstantial evidence

It is a well settled principle that where the case is mainly based on

circumstantial evidence, the court must satisfy itself that various circumstances
in the chain of evidence should be established clearly and that the completed
chain must be such as to rule out a reasonable likelihood of the innocence of the
accused.36

It is the humble contention of the Respondent that the physical act of murdering
Ranadip by strangulating had been established by well linked chain of
circumstantial evidence.

iii. Discovery of Crime Articles.

Recovery of weapons of offence after a long period of time and even not
sending them for forensic examination does not in any way dilute the

35
Aiyar, P Ramanathan, The Law Lexicon, p. 49 (2nd ed 2006.)
36
Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
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evidentiary value of the prosecution version.

It is contended that in the instant case, the murder weapons were recovered
after a period of three years, thereby establishing the link in the chain of
circumstantial evidence to prove the actus reus of the accused.

C. MENS REA

Mens rea is considered as guilty intention37, which is proved or inferred from

the acts of the accused.38 It is submitted that the intention to kill had been
established [A] in light of clear-cut motive of the accused [B]. Arguendo,
absence of motive would not be a sufficient ground to dismiss the case [C].

i. Intention

It is presumed that every sane person intends the result that his action
normally produces and if a person hits another on a vulnerable part of the
body, and death occurs as a result, the intention of the accused can be no other
than to take the life of the victim and the offence committed amounts to
murder.39

Moreover, the intention to kill is not required in every case, mere

knowledge that natural and probable consequences of an act would be
death will suffice for a conviction under s. 302 of IPC.40

The intention to kill can be inferred from the murder and nature of the injuries
caused to the victim.41

It is humbly contended by the Respondent that the common intention of The

Accused of murdering The Deceased had been established by establishing a
chain of of circumstantial evidence.

ii. Motive

Sec 8, Indian Evidence Act stipulates that any fact is relevant which shows or
constitutes motive or preparation for any fact in issue or relevant fact. It is
37
Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
38
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
39
(1951) 3 Pepsu LR 635.
40
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC).
41
Laxman v. State of Maharashtra, AIR 1974 SC 1803
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 MEMORIAL ON BEHALF OF THE RESPONDENT

further pertinent to note that if there is motive in doing an act, then the
adequacy of that motive is not in all cases necessary. Heinous offences have
been committed for very slight motive.42

The Supreme Court has held that mens rea is an essential ingredient of a
criminal offence.43 In a criminal court one often wants to test the alleged guilty
mind by seeing what was the motive of the alleged criminal in doing the
particular act. It is not essential under IPC for prosecution to establish motive.
But as a matter of common sense, this is usually of importance, because an
average man does not commit a criminal offence unless he has a strong motive
for doing it.44 The absence of proof of motive has this effect only, that the other
evidence bearing guilt of the accused has to be very closely examined.45 The
motive behind the crime is a very relevant fact of which evidence can be given.
The absence of motive is also a circumstance which is relevant for assessing the
evidence. The circumstances which prove the guilt of the accused are, however,
not weakened by the fact that motive has not been established. 46 Where the
positive evidence against the accused is clear, cogent and reliable, the question
of motive is of no importance.47

iii. Arguendo, Absence of Motive

Assuming for the sake of argument that the accused had no motive, it is
humbly contended that absence of motive is no ground for dismissing the
case. Motive is immaterial so far as the offence is concerned, and need not
be established48 as the mere existence of motive is by itself, not an
incriminating circumstance and cannot take the place of a proof.49

Therefore, absence of proof of motive, does not break the link in the chain
of circumstances connecting the accused with the crime, nor militates
against the prosecution case and is not fatal as a matter of law. 50 When the
42
State v. Dinakar Bandu (1969) 72 Bom LR 905.
43
Nathulal AIR 1966 SC 43.
44
Shamdasini P D AIR 1929 Bom 443.
45
Atley AIR 1955 SC 80
46
Rajinder Kumar AIR 1966 SC 1322
47
Gurcharan Singh AIR 1956 SC 460
48
RATANLAL AND DHIRAJLAL, The Indian Penal Code, (26th ed., 2007).
49
State of Punjab v Sucha Singh, AIR 2003 SC 1471.
50
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
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 MEMORIAL ON BEHALF OF THE RESPONDENT

circumstantial evidence on record is sufficient to prove beyond any doubt to

prove that it was the accused and no one else, who intentionally caused the
death of the accused then, motive of the crime need not be proved.51

The mere missing link of non-establishment of clear motive of accused and is

immaterial and is not a ground for dismissing the case, in light of the well-
established motive of the Accused to commit the murder.

Therefore, it is humbly submitted before this Hon’ble Court that The Accused
were correctly held guilty for the offence of murder, given that the requisite
mens rea and actus reus had been established by the Prosecution from the facts
of the case, beyond a reasonable doubt.

3. The Accused are guilty of Causing Disappearance of Evidence

S.201, IPC relates to the disappearance of any evidence of the commission

of an offence and includes also the giving of false information with the
intention of screening an offender.

To bring home a charge under s.201, IPC, the prosecution must prove:
 That an offence has been committed.
 That the accused knew or had reason to believe the commission of such an
offence.
 That with such knowledge or belief he
a) Caused any evidence of the commission of that offence to disappear, or

b) Gave any information relating to that offence which he then knew or

believed to be false.
 That he did so as aforesaid with the intention of screening the offender
from legal punishment.
 If the charge be of an aggravated form, it must be further proved that the
offence in respect of which the accused did as in 3. And 4. Supra, was
punishable with death or imprisonment for life or imprisonment extending to
ten years.52
51
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC).
52
K. Purnachandra Rao, 1975 Cri.L.J. 1671.
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 MEMORIAL ON BEHALF OF THE RESPONDENT

It must be proved that an offence, the evidence of which the accused is

charged with causing to disappear, has actually been committed, 53 and that the
accused knew, or had the information sufficient to lead him to believe, that
the offence had been committed.54

Mere suspicion would not be sufficient. There must be available on record

cogent evidence that the accused has caused the evidence to disappear in order
to screen another known or unknown. The foremost necessity being that the
accused must have the knowledge or must have the reason to believe that such
an offence has been committed.55

The intention to screen the offender must be the primary and sole object of the
accused. The fact that the concealment was likely to have that effect is not
sufficient.56

It is humbly contended that the offence under this section is proved by

appreciation of Accused’s statement (A) and circumstantial evidence (B).

A. Circumstantial Evidence

It is contended that the well-established chain of circumstantial evidence is

enough to prove that the accused burnt the body to cause evidence of the main
offence to disappear, with an intention of screening them from legal
punishment.

4. The guilt of the Accused has been established beyond all reasonable
doubt.
The criminal jurisprudence as has developed in the basis of the British model is
that the offence alleged is required to be proved “beyond all reasonable doubt”.
What is to be noted is that the doubt, which is required to be removed, is of a
reasonable man and not every kind of doubt based on surmise or guess.
“Reasonable doubt”, therefore, does not mean a vague, speculative or
whimsical doubt or uncertainty, nor a mere, possible doubt of the truth of the
53
Abdul Kadir, (1880) 3 All 279 (FB).
54
Matuki Misser, (1885) 11 Cal 619.
55
Tresa V L, (2001) 3 SCC 549.
56
Jamnadas, (1963) 1 Cri LJ 433
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 MEMORIAL ON BEHALF OF THE RESPONDENT

fact to be proved. It also does not mean proof of a mathematical certainty nor
proof beyond the possibility of a mistake. The requirement in criminal cases, of
proof “beyond reasonable doubt” to support conviction, therefore does not
mean proof beyond all possible doubts.57
Doubts would be called reasonable if they are free from a zest for abstract
speculation. Law cannot afford any favorite other than the truth. To constitute
reasonable doubt, it must be free from an over emotional response. Doubts must
be actual and substantial doubts as to the guilt of the accused person arising
from the evidence or from the lack of it, as opposed to mere vague
apprehension. A reasonable doubt is not an imaginary, trivial or a merely
possible doubt, but a fair doubt based upon reason and commonsense.58
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful
doubts or lingering suspicions and thereby destroy social defense. Justice
cannot be made sterile on the plea that it is better to let hundred guilty escape
than punish an innocent. Letting the guilty escape is not justice, according to
law.59

57
State of MP v. Rammi, 1999 (1) JLJ 49 (MP).
58
State of MP v. Dharkale, AIR 2005 SC 44.
59
State of WB v. Orilal Jaiswal, AIR 1994 SC 1418.
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PRAYER

WHEREFORE, in the light of the facts of the case, issues raised, arguments
advanced and authorities cited, it is most humbly and respectfully prayed that
this Hon'ble Court may be pleased to:

1. Declare and adjudge that accused is guilty of murdering Ranadip.

2. Uphold the conviction of the Hon’ble High Court.

The Hon’ble 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.

All of which is most humbly and respectfully submitted

Place: Mumbai S/d

Date: PUBLIC PROSECUTOR

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