Memorial of Defence

EX COMMUNIQUE- NATIONAL TRIAL ADVOCACY COMPETITION-2023
Page 1 of 27
MEMORANDUM ON BEHALF OF DEFENCE
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................... 3
ABBERVIATION...................................................................................................................... 3
FULL FORM ............................................................................................................................. 3
INDEX OF AUTHORITIES...................................................................................................... 4
STATEMENT OF JURISDICTION.......................................................................................... 8
STATEMENT OF FACTS ........................................................................................................ 9
STATEMENT OF CHARGES ................................................................................................ 10
STATEMENT OF ISSUES ..................................................................................................... 11
SUMMARY OF ARGUMENTS ............................................................................................. 12
ARGUMENTS ADVANCED ................................................................................................. 13
WHETHER MR. SURESH BE LIABLE TO CONVICT UNDER SEC. 363 OF DPC OR

NOT?........................................................................................................................................ 13
WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER SEC. 302 & 201 OF
DPC OR NOT? ........................................................................................................................ 16
[2.1] ABSENCE OF CORE ELEMENTS OF CRIME ................................................... 16
(a) Mens rea could not be established .......................................................................... 16

(b) Actus reus is not established ................................................................................... 17
[2.2] NO OFFENCE UNDER S. 302 DPC ....................................................................... 17
[2.3] THERE EXISTS REASONABLE DOUBT ............................................................ 18
WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER SEC. 376 OF DPC &
SEC. 6 OF POCSO ACT OR NOT? ........................................................................................ 23
[3.1] RAPE WAS NOT COMMITTED BY MR. SURESH ........................................... 23
[3.2] ABSENCE OF CONNECTING LINK .................................................................... 24
PRAYER .................................................................................................................................. 27
Page 2 of 27
LIST OF ABBREVIATIONS
LIST OF ABBREVIATIONS
ABBERVIATION FULL FORM

& And
A.I.R. All India Reporter
CrLJ Criminal Law Journal
CrPC Code of Criminal Procedure
D.P.C. Dravidian Penal Code
Ed. Edition
H.C. High Court
No. Number
Ors. Others
p. Page
S.C. Supreme Court
S.C.C. Supreme Court Cases
SCR Supreme Court Record
Sec. Section
v. Versus
w/o Wife of
Page 3 of 27
INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
1. CASE LAWS USED:

1. Ajit Singh v State of Punjab, (2011) 9 SCC 462
2. Anandha Raj v. The Deputy Superintendent of Police, Crime No. 266 of 2005
3. Arun Bhanudas Pawar v. State of Maharashtra, 2008 (61) ACC 32 (SC),
4. Biswanath Mallick v. State of Orissa, 1995 CrLJ 1416 (Ori).
5. Babu v. State of Kerala, JT 2010 (8) SC 560:2007 AIR SCW 5105,
6. Bobade v. State of Maharashtra, (1994) SCMR 1614
7. Bhodraj v. State of J&K Appeal (crl.) 921 of2000
8. Chhajju Ram Maru and Anr. v. The State of Punjab, AIR 1968 P&H 439
9. Dilip and Anr. V. State of M.P. AIR 2001 SC 3049, 2001 ALD Cri 706, 2001 CriLJ
4721, 2001 (4), 2001 (4) Crimes 105 SC, JT 2001 (8) SC 390, RLW 2002 (2) SC 328,
2001 (7) SCALE 51, (2001) 9 SCC 452
10. Dahyabhai Chhaganbhai Thakkar v State of Gujarat, AIR. 1964 SC 1563.
11. Gedu Alias Parameswar Patra v. State of Orissa, SC on 13th July 2016
12. Himanchal & Anr. v. State of UP, SC on 18th August 2015.
13. Jagriti Devi v. State of HP, (2009) 14 SCC 771
14. Jawant Gir v. State of Punjab 1958 AIR 124, 1958 SCR 762
15. K.V. Chacko alias Kunju v. State of Kerala, (2001) 9 SCC 277.
16. Krishnan v. State represented by Inspector of Police, (2008) 15S SCC 430;
17. Kuna v State of Odisha, AIR 2017 SC 5364
18. Krishnan v. State of TN Appeal (crl.) 631 of 2000
19. Krishna Kumar Malik v. State of Haryana, (Crl.) No. 8021 of 2009
20. Mohibur Rahman v. State of Assam [2002 (3) Crimes 235 (SC) ; (2002) 6 SCC 715 :
2002 SCC Cri. 1496: 2002 AIR S.C.W. 2523 : AIR 2002 SC 3064].
21. Malleshappa v. State of Karnataka, (2007) 13 SCC 399: (2009) 2 SCC (Cri) 394
22. Navaneethakrishnan v. The State by Inspector of Police, 2018 SCC OnLine SC 378.
23. Nizam v. State of Rajasthan, (2016) 1 SCC 550: (2016) 1 SCC (Cri) 386: 2015 SCC
OnLine SC 782
24. Padala Veera Reedy v. State of A.P. AIR 1990 SC 79, 1990 (1) UJ 137 SC
Page 4 of 27
25. Ram Khelawan v. State of Madhya Pradesh, 2014 S.C.C. Online Chh 29.
26. R Shaji v State of Kerala, AIR 2013 SC 651 (para 19).

27. Ramesh Bhai and Anr. v. State of Rajasthan, (2009) 12 SCC 603, AIR 2009SC (Supp)
1482;
28. Ramakant Rai v. Madan Rai CrLJ 2004 Sc 36
29. Rambrasksh v. State of Chhattisgarh 2016
30. State of Harayana v. Rajaram, AIR 1973 SC 819
31. State v. Harbansing, AIR 1954 Bombay 339
32. State of Harayana v. Rajaram, AIR 1973 SCC 819
33. Sunil Tigan Akhilesh v. State of Delhi (NCT Delhi), ILR (2009) 4 Del 110.
34. State of Uttar Pradesh v. Satish, (2005) 3 SCC 114: AIR 2005 SC 1000;
35. Subramaniam v. State of Tamil Nadu and Anr, (2009) 14 SCC 415: AIR 2009 SC (supp)
1493 and
36. State of Punjab v. Pritam Singh, AIR 1977 SC 2005.
37. State of Madhya Pradesh v Budhram, 1996 CrLJ 2010 (MP)
38. State of Gujarat vs. Kishanbhai 2005 0 Supreme (Guj.) 567
39. State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224,
40. State of Gujarat vs. Kishanbhai 2005 0 Supreme (Guj) 567
41. T.D. Vadgam v. State of Gujarat, AIR 1973 SC 2313
42. TGL Poshak Corp. v. Commissioner of Central Excise, 2000 ECR 424 Tri Chennai,
2002 (140) ELT 187 Tri Chennai
43. Vijay Singh v. State of Rajasthan, (1975) WLN 674
44. Vilas Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158,
45. Vithal Eknath Adlinge v. State of Maharashtra, AIR 2009 Supreme Court 2067 and
46. Vijay Kumar v. State of Rajasthan, (2014) 3 SCC 412
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II. STATUES:
1. THE CONSTITUTION OF INDIA, 1950
2. THE CODE OF CRIMINAL PROCEDURE, 1973 (ACT 2 OF 1973).
3. THE DRAVIDIAN PENAL CODE, 1860 (ACT 5 OF 1860).
4. THE INDIAN EVIDENCE ACT, 1872 (ACT 18 OF 1872).
5. THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012(ACT
32 OF 2012)
III. BOOKS:
1. AIYAR, P RAMANATHA, THE LAW LEXICON, P. 49 (2ND EDITION 2006).
2. BARDALE, RAJESH. PRINCIPLES OF FORENSIC MEDICINE &
TOXICOLOGY. BROTHERS, MEDICAL PUBLISHERS PVT LIMITED, 2011.
3. BASU, DD, CRIMINAL PROCEDURE CODE, 1973 (4TH ED 2010).
4. DAVID ORMEROD, BLACKSTONE'S CRIMINAL PRACTICE 19 (2012)
5. DUHAM UNHAM BETH WALSTON INTRODUCTION TO LAW, 6TH ED. 2011
6. GAUR, KD, CRIMINAL LAW: CASES AND MATERIALS, (6TH ED. 2009).
7. GLANVILLE WILLIAMS, TEXTBOOK OF CRIMINAL LAW, STEVENS AND
SONS, 1983.
8. GOUR, HS, THE INDIAN PENAL CODE, (12TH ED. 2005).
9. GUPTE AND DIGHE, CRIMINAL MANUAL, (7TH ED. 2007)
10. JETHMALANI, RAM, AND CHOPRA, DS, THE DRAVIDIAN PENAL CODE,
(2ND ED. 2014).
11. MODI J.P. MEDICAL JURISPRUDENCE, 25 EDITION. LEXUS NEXUS BUTTER
WORTHS, NEW DELHI, 2017
12. PSA PILLAI'S CRIMINAL LAW (14TH ED,2021)
13. RATANLAL AND DHIRAILAL, THE DRAVIDIAN PENAL CODE, (34TH ED.
2013).
14. RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE, (25ND ED. 2013).
15. SARKAR, LAW OF EVIDENCE, (16TH ED, 2007).
16. SN MISHRA, INDIAN PENAL CODE, TWELFTH EDITION, CENTRAL
LAW PUBLICATIONS.
Page 6 of 27
IV. ARTICLES, JOURNALS:
1. DJ LANHAM, ‘I ARSONNEUR REVISITED’, CRIMINAL LAW REVIEW, 1976,

Pp. 276
2. JEROME HALL, “GENERAL PRINCIPLES OF CRIMINAL LAW”, BOBBS-
MERRIL, NEW YORK, Pp. 222
3. STORY ON EQUITY, 3RD EDN, SECTION 222, P. 94
4. TOH YUNG CHEONG, KNOWING, NOT KNOWING AND ALMOST KNOWING:
KNOWLEDGE AND THE DOCTRINE OF MENS REA, (2008) 20 SACLJ 677.
V. REFERENCES:
1. Manupatra
2. SCC online
3. Lexis Nexis
Page 7 of 27
STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
The prosecution in the present case has approached the Hon’ble Sessions Court to initiate the
present case under Sec. 1771 read with Sec. 2092 of the Code of Criminal Procedure, 1973.
The defence does not submits the present matter under the above-mentioned jurisdiction of the
Session Court, Gilmour, Stuggart. As per the charges which are imposed on Mr. Suresh the
jurisdiction lies under the POCSO Act as special court has the power to deal with such matters.
1
Ordinary place of inquiry and trial: Every offence shall ordinarily be inquired into and tried by a Court within
whose local jurisdiction it was committed.
2
Commitment of case to Court of Session when offence is triable exclusively by it: When in a case instituted on
a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the
Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) Commit the case to the Court of Session;
(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until
the conclusion of the trial;
(c) Send to that Court the record of the case and the documents and articles, if any which are to be produced
in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.
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STATEMENT OF FACTS STATEMENT OF FACTS
The State/Prosecution would humbly submit before the Hon’ble Court of the Sessions Judge
that following are the facts of the present case:
1. That deceased was a daughter of Suresh Kamat who works for a daily wage as a manson
with a construction company and Vinobha who passed away 4 years ago due to cardiac
arrest.
2. They were blessed with three children namely Vikram (17 years), Sonu (15 years) and
Monika (11 years). Vikram started drinking and became addicted to alcohol and stop
working due to untoward friendship after her mother passed away.
3. On July 31, 2022 around 2:30 Am Suresh woke up to find out that his daughter is
missing and he could not trace her. After failed to search her he went to the police
station and orally reported the matter and offence was registered under Section 363 of
DPC.
4. The police started the investigation and in the night at about 03:30 AM they found the
deceased lying naked in the courtyard of the building of Government Model School.
She was taken to the S.N. Hospital where she was declared dead.
5. Thereafter a written report was given by Suresh to the Police Station. There were marks
of injuries on her body and bleeding was present in her private part. He suspects that
some unknown person killed her after committing rape.
6. The police after investigation and recording statements of several persons acquainted
with facts and circumstances, the Investigation Officer forwarded the final report to the
Judicial Magistrate Court.
7. The court took cognizance and the case was committed to the Session Court, Gilmour,
Stuggart for trial and Charges was Kidnapping, rape and Murder of the deceased.
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STATEMENT OF CHARGES
STATEMENT OF CHARGES
This Hon’ble court has the power to joint charges & hear the instant matter under Sec. 1843
read with Sec. 2204 of the Code of Criminal Procedure, 1973. The charges framed on the Mr.
Suresh were as follows:
Mr. Suresh Kamat has been charged under Sec. 302, Sec. 363, Sec. 201 & Sec. 376 of The
Dravidian Penal Code, 1860 along with Sec. 6 of The Protection of Children from Sexual
Offences Act, 2012 for the act of Murder, Kidnapping, Rape and Aggravated penetrative sexual
assault of the deceased respectively.
3
Place of trial for offences triable together-Where-
(a) the offences committed by any person are such that he may be charged with, and tried at one trial for,
each such offence by virtue of the provisions of section 219, section 220 or section 221, or
(b) the offence or offences committed by several persons are such that they may be charged with and tried
together by virtue of the provisions of section 223 the offences may be inquired into or tried by any Court
competent to inquire into or try and of the offences.
4
Trial for more than one offence, in one series of acts so connected together as to form the same transaction,
more offences than one, are committed by the same person, he may be charged with, and tried at one trial for,
every such offence.
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STATEMENT OF ISSUES STATEMENT OF ISSUES
ISSUE 1: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED

UNDER SECTION 363 OF DPC OR NOT?

UNDER SECTION 302 & SECTION 201 OF DPC OR NOT?

UNDER SECTION 376 OF DPC & SECTION 6 OF THE POCSO ACT OR
NOT?
Page 11 of 27
SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE MR. SURESH IS LIABLE TO BE CONVICTED UNDER

SECTION 363 DPC OR NOT?
It is humbly submitted before this honourable Court that; Mr. Suresh should not be convicted
under section 363 DPC. As, to prove the charges of Section 363 it has to fall under the ambit
of Section 363 DPC. But in the present case, the accused has been falsely charged with such
allegations without any evidences supporting the same. It is to be noted that, in the present
matter, there has been no traces of inducement or offer from the accused. It is most humbly
submitted before this Honourable court that, merely on the basis of last seen, which is not
sufficient to complete the chain of circumstances to record the guilty of accused and no
conviction on the basis alone can be done.
ISSUE 2: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER

SECTION 302 & SECTION 201 OF DPC OR NOT?
It is most humbly submitted before this Honourable court that Mr. Suresh has been falsely
charged failed to prove the Mens Rea & Actus Reus. It is contended that the circumstances of
last seen together does not, by itself lead to the guilt of the accused. The Prosecution has also
failed to establish the doubt beyond the reasonable doubt and the accused must be acquitted
from the alleged crime and must be entitled with his right to life & property which is guaranteed
by our constitution under Article 21.
ISSUE 3: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER

SECTION 376 & SECTION 6 OF POCSO ACT OR NOT?
It is humbly submitted before this Honourable court that, the accused has been falsely
implicated with the rape of the girl aged 11, who was his own blood. It is to be noted that, the
prosecution merely on the basis of the last seen, had alleged the accused who was not even
subjected to a medical examination to prove his innocence, which is guaranteed under Section
53-A of CrPC further worsens the case. But, in the present matter, the prosecution did not even
examine the accused or extracted the DNA Samples to examine the contribution of the accused
with baseless allegations.
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ARGUMENTS ADVANCED
ARGUMENT ADVANCED
WHETHER MR. SURESH

ISSUE I: WHETHER BESURESH
MR. LIABLE TO CONVICT
IS LIABLE UNDER
TO SEC. 363 OF
BE CONVICTED
DPC OR NOT?
UNDER SEC. 363 OF DPC OR NOT?
1. It is most humbly submitted before this Hon’ble court that order to convict an accused under
the Section 363 of the DPC, it is necessary for the case to fall under the ambit of the Section
361 of the IPC which deals with “Kidnapping from lawful guardianship”. In the present case,
Mr. Suresh is targeted with baseless allegations of such serious offences without any substantial
evidences supporting the same.
2. The object of the Section 361 of the DPC is to protect children of tender age from being use
for improper purposes, as well as for the protection of the rights of parents and guardians having
the lawful charge or custody of minors or insane persons.5 The mischief intended to be punished
by this section partly consists of violation or infringement of the guardians rights to keep their
wards under their care and custody; but the more important object of this provision is
undoubtedly to afford security and protection to the ward themselves.6
3. The four essential ingredients for the case to fall under the above section are as follows:
a) Taking or enticing away a minor or a person of unsound mind.
b) Such minor must be under 16 years of age, if a male, or under 18 years of age, if a female.
c) The taking or enticing must be out of the keeping of the lawful guardian of such minor or
person of unsound mind.
d) Such taking or enticing must be without the consent of such guardian.7
4. The gravemen of this offence lies in the taking or enticing of a minor under the ages specified
under this section, out of the keeping of the lawful guardian without the consent of such
guardian. The words “take or entice any minor….out of the keeping of the lawful guardian of
such minor” are significant. The use of the word “keeping” connotes the idea of charge,
protection, maintenance and control; the guardians” charge and control appears to be
compatible with the independence of action and movement in the minor, the guardian’s charge
5
State of Harayana v. Rajaram, AIR 1973 SC 819
6
State v. Harbansing, AIR 1954 Bombay 339
7
Biswanath Mallick v. State of Orissa, 1995 CrLJ 1416 (Ori).
Page 13 of 27
and control of the minor being available whenever necessity arises.8 Thus this relation between
the minor and the guardian certainly does not dissolve so long as the minor, can at will take
advantage of it and place herself within the sphere of its operation.
5. Therefore, it is most humbly submitted that, keeping of the lawful guardianship” must be also,
safeguard the independence of the one that is brought within the scope of the same. The factors
governing the aforementioned independence however, are multifarious as well as subjective.
They take face of what is acceptable and necessary at that time, in that contemporary society.
6. The law assumes that in the Indian context the true interest of the minor and that of the
parent/guardian concur. That is the basic plank of parental (guardians) authority and right. It
must however be considered that, there is distinction between “taking” and allowing a minor
to accompany a person.9 The two expressions are not synonymous and it is pertinent to note
that in no conceivable circumstance can the two be regarded as meaning the same thing for the
purpose of Section 361 of the Dravidian Penal Code, 1860. The offence of kidnapping from
lawful guardianship is complete when the minor is actually taken from lawful guardianship; it
is not an offence continuing so long as the minor is kept out of such guardianship.10
7. Similarly, in the present matter, there exists no inducement or offer from the accused towards
the deceased. There is no evidence available on record which might justify that the accused
was involve in the kidnapping of the deceased.
8. Hence, it is most humbly submitted that the requisites under this section are no fulfilled and
the accused should not be liable for conviction under section 363 DPC. The recovery of body
from the courtyard of the School is a well-executed plan of the main culprit to falsely implicate
heinous offences on the deceased and must be completely ruled out. Also, in the absence of
any other links in the chain of circumstantial evidence, the accused cannot be convicted solely
on the basis of “last seen together” even if version of the prosecution witness in their regard is
believed.11
9. Mr. Suresh was the only lawful guardian at the time of incident Hence, the ingredients of the
offence as defined under section 361 and punishable under section 363 DPC. Similarly, Mr.
Suresh allegedly took out the victim under the pretext of feeding some cold drink for her and
admittedly she was alive at that point of time. The school from where the body of deceased
8
State of Harayana v. Rajaram, AIR 1973 SCC 819
9
T.D. Vadgam v. State of Gujarat, AIR 1973 SC 2313
10
Chhajju Ram Maru and Anr. v. The State of Punjab, AIR 1968 P&H 439
11
Jawant Gir v. State of Punjab 1958 AIR 124, 1958 SCR 762
Page 14 of 27
was recovered is close to the hut of Mr. Suresh. The circumstances are such that the offence
might have been committed in the hut or in the courtyard of school or partly in the hut and
partly in the school. Thereafter, there is no evidence given by prosecution that he did anything
to disappear the body or evidence as the inner- wear of victim was found close to her body and
the clothings were also in the hedges of the school. Therefore, the conviction for the offence
under section 363 and section 201 is misconceived, unwarranted and illegal and is liable to be
set aside.
10. Mr. Suresh have been charged under Section 363 Of D.P.C, which requires that in addition to
kidnapping, it is humbly contended before the Hon'ble Court that Mr. Suresh have not
committed such an offence and have been wrongly implicated for the same. Whether the
evidence recovered against Mr. Suresh can be relied upon to prove beyond reasonable doubt
that it is the accused who kidnapped the victim, needs to be considered before deciding their
culpability.
11. The Supreme Court, in Navaneethakrishnan v. The State by Inspector of Police12, held that
where the prosecution failed to prove all the necessary circumstances, which would constitute
a complete chain, without a snap and pointing to the hypothesis that except the accused, no one
had committed the offence, the conviction must be set aside. Also, the SC, in another case, K.V
Chacko alias Kunju v. State of Kerala13, stated that if the chain of circumstances is not as
complete as to singularly point to the guilt of the accused, and leaves no room for any
explanation other than the guilt of the accused, only then can the accused be convicted.
12. Since the circumstantial evidence, so relied upon by the Prosecution, is vulnerable to
misinterpretation and open to personal bias, it cannot be relied upon to convict the accused.
12
Navaneethakrishnan v. The State by Inspector of Police, 2018 SCC OnLine SC 378.
13
K.V. Chacko alias Kunju v. State of Kerala, (2001) 9 SCC 277.
Page 15 of 27
WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER SEC.

ISSUE II: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED
302 & 201 OF DPC OR NOT?
UNDER SEC. 302 & 201 OF DPC OR NOT?
13. It is most humbly submitted before this Hon’ble Court that Mr. Suresh in the present case has
been falsely charged with grave allegations of murder and Causing disappearance of evidence
of offence, or giving false information, to screen offender merely based on hearsay evidence
and there exists no substantial evidence present corroborating with the allegations inflicted.
The issue will be dealt in three folds i.e. [2.1] absence of core elements of crime, [2.2] no
offence under sec. 302 DPC and [2.3] there exists reasonable doubt.
[2.1] ABSENCE OF CORE ELEMENTS OF CRIME
14. Being very fairly entrenched by the criminal law, that to convict the accused for the crime of
murder under Sec. 302 DPC read with Sec. 300, the fundamental principle of crime is that a
wrongful act i.e. actus reus14 is to be amalgamated with the mental aspect of crime i.e. mens
rea which must be criminal and concurrent to actus reus should be individually established by
the prosecution.15 Therefore, it is humbly submitted that there could be no mens rea & actus
reus met out in the present case and not at all present at the crime scene when the incident took
place.
(a) Mens rea could not be established

15. Mens rea is considered as guilty intention16, which is proved or inferred from the acts of the
accused. Moreover, mens rea suggests that the offender should be punished only if he knew or
was reckless to the existence of the specified circumstances.17
14
Jerome Hall, "General Principles of Criminal Law", Bobbs-Merril, New York, pp. 222.
15
DJ Lanham, I arsonneur Revisited', Criminal Law Review, 1976, pp. 276
16
Ram Khelawan v. State of Madhya Pradesh, 2014 S.C.C. Online Chh 29.
17
Toh Yung Cheong, Knowing, Not Knowing And Almost Knowing: Knowledge and The Doctrine of Mens Rea,
(2008) 20 SACLJ 677
Page 16 of 27
(b) Actus reus is not established

16. Actus reus is any wrongful act.18 In a case of murder, actus reus would be the physical conduct
of the accused19 that causes death of the victim. In the present case actus reus is not at all
established by the way of post-mortem reports or another substantial corroborating evidence
that the accused has committed actus rea which led to the death of the deceased. In the case of
Sunil Tigan Akhilesh v. State of Delhi20 it was noticed that mens rea was followed by actus
reus in so much as that the appellant gave effect to his criminal intent. Whereas it is contented
in the present case that mens rea is not at all established beyond a reasonable doubt by the
prosecution.
17. In additional to this, it is said “Where a man intentionally kills another, he must inflict such
body injury sufficient in the ordinary course of nature that his act results in immediate death.21
Therefore, considering this it could be contended that there was no such injury inflicted by the
accused on deceased to cause her immediate death & there was no preparation found out to kill
the deceased but rather, the accused was not even present at the crime scene.
18. There exists no positive evidence against the accused in the present case and the prosecution is
thus inflicting false charges in order to somehow constitute the accused amounted the murder.
In the present case it is fallacious to charge the said accused u/s 302 as the facts are not
commensurate to the alleged offence and thus it makes the said charge unreliable. Moreover,
absence of motive in a case depending entirely on circumstantial evidence is a factor that
weighs in favour of the accused as it “often forms the point of prosecution story”.22
[2.2] NO OFFENCE UNDER S. 302 DPC
19. It is humbly contented before this Hon’ble court that in order to hold whether an offence would
fall u/s. 302 of the Code, there must be cautious examination whether the same falls u/s. 300
of the Code which states whether a culpable homicide is murder.23 An offence cannot amount
to murder unless it falls within the definition of culpable homicide.24
18
AIYAR, P RAMANATHA, THE LAW LEXICON, p. 49 (2nd edition 2006).
19
DUNHAM BETH WALSTON, INTRODUCTION TO LAW, (6TH ED., 2011).
20
Sunil Tigan Akhilesh v. State of Delhi (NCT Delhi), ILR (2009) 4 Del 110.
21
Himanchal & Anr. v. State of UP, SC on 18th August 2015.
22
R Shaji v State of Kerala, AIR 2013 SC 651 (para 19).
23
Ajit Singh v State of Punjab, (2011) 9 SCC 462
24
RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (32nd Ed., Lexis Nexis, 2016).
Page 17 of 27
20. In order to constitute culpable homicide, the expressions "intent" and "knowledge" occurring
in section 299 must be established which postulate existence of a positive mental attitude which
is of different degrees. If death is caused in any of the circumstances envisaged in section 299,
offence of culpable homicide is said to have been committed.25 In the present case there exists
no presence of "intent" and knowledge" and further does not establish mens rea which is proved
in the above contentions. Indeed, the deceased's death was of homicidal in nature but unless
the prosecution can establish beyond a reasonable doubt that the accused alone had committed
the murder, their conviction for an offence under the section 3021PC cannot be sustained.
21. A person must participate in all the acts necessary to constitute a particular crime in order to
be guilty thereof. The only concept known to law is crime; and the crime exists only when
actus reus and mens rea coincide.26 It is further stated that, there is no establishment that the
said accused was present at the spot, moreover no evidence is offered to ascertain the same,
which makes their allegations more fallacious.
22. The medical evidence does not by any means clearly establish the fact that the accused
murdered the deceased and should not be considered as the basis to connect the accused person
with crime and is entitled to the benefit of doubt.27 The Prosecution’s case is liable to be
dismissed because of heavy reliance on uncorroborated FIR when the prosecution has failed to
establish the case beyond reasonable doubt.28 Moreover, no eye witness was present there
which could establish the physical presence of the accused, all creating existence of a
reasonable doubt.
[2.3] THERE EXISTS REASONABLE DOUBT
23. It is well settled principal that where the case is solely based on circumstantial evidence, the
court must satisfy itself that various circumstances in the chain of evidence should be
25
Jagriti Devi v. State of HP, (2009) 14 SCC 771
26
State of Uttar Pradesh v. Satish, (2005) 3 SCC 114: AIR 2005 SC 1000; Krishnan v. State represented by
Inspector of Police, (2008) 15S SCC 430; Ramesh Bhai and Anr. v. State of Rajasthan, (2009) 12 SCC 603, AIR
2009SC (Supp) 1482; Subramaniam v. State of Tamil Nadu and Anr, (2009) 14 SCC 415: AIR 2009 SC (supp)
1493 and Babu v. State of Kerala, JT 2010 (8) SC 560:2007 AIR SCW 5105, Bobade v. State of Maharashtra,
(1994) SCMR 1614
27
Kuna v State of Odisha, AIR 2017 SC 5364
28
State of Punjab v. Pritam Singh, AIR 1977 SC 2005.
Page 18 of 27
established clearly & that the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused.29
24. In the present case, the circumstances do not link with each other & chain of events which
conclude that the accused was not at all present at the crime scene during the incident.
Following this, these are the principles of criminal jurisprudence, which applies to our case:
a) The prosecution to prove its case beyond reasonable doubt30

b) Presumption of innocence
c) Onus of prosecution never shifts31
25. As observed in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat,32 “it was held that the
prosecution must prove beyond reasonable doubt that the accused had committed the offence
with the requisite mens rea & the burden of proving that always rests on prosecution from the
beginning to the end of trial”. Also in the same case it was held that, “It is fundamental principle
of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden
lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.
26. Further, In State of MP v. Budhram,33 it was held that mere possibility of existence of motive
cannot make the accused guilty. Presumption of innocence is a human right.
27. Also, it is stated in the case of TGL Poshak Corp. v. Commissioner of Central Excise,34 that
in the absence of detailed investigation & corroborative evidence the benefit of doubt has to be
extended to the party. Applying this in the present case it is noticed that the investigation was
faulty & improper as to the fact that the Panchnama was not recorded and even the material
recovered was not sent for FSL. It is further stated that, in the particular case, material
evidences such as FSL, Panchnama etc has not been produced by the prosecution and it must
be noted that, in the case of Murder the significance of the said report is very paramount.
28. In the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat35 it was held that, “It is
fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and
29
Gedu Alias Parameswar Patra v. State of Orissa, SC on 13th July 2016
30
Sec. 101 of Indian Evidence Act, 1872. [hereinafter IEA]
31
Naina Mohammed re, 1960 Cr.LJ 620
32
Dahyabhai Chhaganbhai Thakkar v State of Gujarat, AIR. 1964 SC 1563.
33
State of Madhya Pradesh v Budhram, 1996 CrLJ 2010 (MP)
34
TGL Poshak Corp. v. Commissioner of Central Excise, 2000 ECR 424 Tri Chennai, 2002 (140) ELT 187 Tri
Chennai
35
Supra note 32
Page 19 of 27
therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable
doubt. The prosecution, therefore in a case of homicide shall prove beyond reasonable doubt
that the accused caused death with the requisite intention described in Section 299 of the penal
Code”.
29. The case of the prosecution is entirely based on the circumstantial evidence. In a case based on
circumstantial evidence, settled law is that the circumstances from which the conclusion of
guilt is drawn should be fully is that the circumstances from the conclusion of guilt is drawn
should be fully proved and such circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete, forming a chain and there should be no gap left in the chain
of evidence. Further, the proved circumstances must be consistent only with the hypothesis of
the guilt of the accused and totally inconsistent with his innocence.36
30. Where neither of the circumstances singly nor cumulatively led to the conclusion that the
accused alone was the perpetrator of the crime or that he had participated in the crime, the
accused will be entitled to both the benefit of doubt in respect of the conviction and sentence.37
In consonance with the antecedent case, it is apprised before this Court that in the present case,
by the virtue of inconsistencies and doubts, it is sufficient to draw a conclusion in favour of the
said accused.
31. It is trite in law that a conviction cannot be recorded against the accused merely on the ground
that the accused was last seen with the deceased. In other words, a conviction cannot be based
on the only circumstance of last seen together. Normally, last seen comes into play where the
time gap, between the point of time when the accused and deceased were seen last alive and
when the deceased is found dead, is so small that possibility of any person other that the accused
being the preparatory of crime becomes impossible. To record a conviction, the last seen
together itself would not be sufficient and the prosecution has to complete the chain of
circumstances to bring home the guilt of the accused.38
32. In the absence of any other circumstances which could connect the prosecution-accused with
the crime alleged except as indicated above and in the absence of any corroboration of the
circumstance of “last seen together” a reasonable doubt can be contemplated with regard to the
36
Nizam v. State of Rajasthan, (2016) 1 SCC 550: (2016) 1 SCC (Cri) 386: 2015 SCC OnLine SC 782
37
Vijay Singh v. State of Rajasthan, (1975) WLN 674
38
Rambrasksh v. State of Chhattisgarh 2016
Page 20 of 27
involvement of the accused in the crime alleged against him. The burden under Section 106 of
the Evidence Act, 1872 would not shift in the aforesaid fact situation.39
33. It is contended that the circumstances of “last seen together” does not, by itself, necessarily
lead to the inference that it was the accused who committed the crime and there must be
something more to establish the nexus between the accused and the crime.
34. A reference can also be made to Article 21 of the Constitution of India, which is considered to
be the heart & soul of the Constitution of India, which is considered to be the heart & soul of
the Constitution, guarantees the protection of life & personal liberty of any person. Under
Article 21 of the Constitution of India, depravation of life & liberty of an individual can be
held only by following the procedure established by law. The Court cannot convict an accused
on mere surmises, conjecture & suspicion.
35. In a certain case “the prosecution has succeeded in creating a suspicion against the accused
& it has miserably failed to prove the case against the accused beyond reasonable doubts &
thus, we are bound to give the benefit of doubt to the accused & to acquit him.”40 In context to
this, in the present case the accused is falsely prosecuted on charge of murder. Due to the
absence of credible evidence & missing failed to bring home the guilt of the accused under
Section 302, IPC beyond reasonable doubt and the accused must be entitled for benefit of
doubt.
36. The prosecution’s arguments are leaning towards the fact that the crime “may have been
committed by the accused”, however they have failed to make the link between “may have
committed the crime” and “must have committed the crime” and that gap must be filled by the
prosecution by legal, reliable and unimpeachable evidence before a conviction can be
sustained.41
37. In light of all the aforementioned arguments, the accused humbly submits that there exists
reasonable doubt and hence he should be acquitted of the alleged crime. A reasonable doubt
must not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason and
common sense arising out of the evidence of the case.42
39
Malleshappa v. State of Karnataka, (2007) 13 SCC 399: (2009) 2 SCC (Cri) 394
40
Anandha Raj v. The Deputy Superintendent of Police, Crime No. 266 of 2005
41
63 IV. Nelson R.A., Dravidian Penal Code, p. 2905, (10 th Ed. 2008)
42
Ramakant Rai v. Madan Rai CrLJ 2004 Sc 36
Page 21 of 27
38. According to Section 20143: Causing disappearance of evidence of offence, or giving false
information to screen offender.
Whoever, knowing or having reason to believe that an offence has been committed, causes any
evidence of the commission of that offence to disappear, with the intention of screening the
offender from legal punishment, or with that intention gives any information respecting the
offence which he knows or believes to be false,
if a capital offence- shall, if the offence which he knows or believes to have been committed
is punishable with death be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life-and if the offence is punishable with 1[imprisonment
for life), or with imprisonment which may extend to ten years, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also
be liable to fine;
if punishable with less than ten years' imprisonment-and if the offence is punishable with
imprisonment for any term not extending to ten years, shall be punished with imprisonment of
the description provided for the offence, for a term which may extend to one-fourth part of the
longest term of the imprisonment provided for the offence, or with fine, or with both.
In the present case, no such evidence was disappeared or no false information was given by
Mr. Suresh and the prosecution also failed to proof such disappearance of evidence by Mr.
Suresh.
43
Section 201 of Dravidian Penal Code, (DPC)
Page 22 of 27
WHETHER
ISSUE III:MR. SURESH MR.
WHETHER IS LIABLE
SURESHTO IS
BELIABLE
CONVICTED UNDER
TO BE SEC.
CONVICTED
376 OF DPC
UNDER & SEC.
SEC. 6 OFDPC
376 OF POCSO ACT6 OR
& SEC. OF NOT?
POCSO ACT OR NOT?
39. It is most humbly contended that Mr. Suresh is falsely implicated for the rape of a girl aged 11
years, to whom the accused regarded as her own daughter. The offence was committed on the
night of 31.07.2022, wherein the body was found in the courtyard of School. The prosecution
solely on the basis of circumstantial evidence is falsely implicating the accused for rape but the
contrary will be proved into two fold i.e. [3.1] rape was not committed by Mr. Suresh and [3.2]
absence of connecting link.
[3.1] RAPE WAS NOT COMMITTED BY MR. SURESH
40. The offence of rape can take place by penetration or insertion of any object, may be even to a
slight extent into the vagina, moth, urethra or anus of a woman and it need not necessarily be
penetration to the extent of rupture of hymen. Even if a person applies his mouth to any of these
body parts of a woman, offence of rape is said to have taken place.
41. A man is said to commit “rape” when he has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:
a. First: Against her will.
b. Second: Without her consent.
c. Thirdly: With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
d. Fourthly: With her consent, when the man knows that he is not her husband, and that
her consent is given because she believes that he is another man to whom she is or
believes herself to be lawfully married.
e. Fifthly: With her consent, when at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she given consent.
42. In the present case, it is quite evident from the medical examination report that the rape of the
deceased to whom the alleged accused regarded as her daughter, but it is contended that there
is no role of the accused in the present matter.
Page 23 of 27
43. The mere fact that the accused was last seen with the deceased though may create a suspicion
about involvement of the accused for want of appropriate explanation by the accused in this
regard, however, that suspicion cannot take place of legal proof and unless and until there are
other corroborative circumstances on record, this circumstances in that sense is not
incriminating.44
44. The conviction cannot be based only on circumstances of last seen together with the deceased.45
The last seen theory comes into play where the time gap between the point of time when the
accused and the deceased were last seen alive and when the deceased is found dead is so small
that possibility of any person other than the accused being the author of the crimes becomes
impossible.46 In the present matter on the basis of that the accused was feeding deceased with
some soft drinks does not prove that the accused had committed the rape or he can be held
guilty for the offence of rape.
45. Moreover, it will be hazardous to come to a conclusion of guilt in cases where there is no other
positive evidence to conclude that the accused and the deceased were last seen together.47 And
it only depicts a possible malice intention to falsely implicate the accused.
[3.2] ABSENCE OF CONNECTING LINK
46. The accused under the provision of Section 53-A of CrPC, is subjected to medical examination
in cases of rape there are reasonable grounds for believing that an examination of the person
will afford evidence as to the commission of such offence to support the claim of the
prosecution but in the matter, the accused was not examined and also not given the opportunity
to examine in order to prove his innocence.
47. Thus, upon appreciation of the evidence adduced before this Hon’ble court, the accused cannot
be convicted of the charges levelled against him48 solely on the basis of medical examination
of the deceased.
44
Mohibur Rahman v. State of Assam [2002 (3) Crimes 235 (SC) ; (2002) 6 SCC 715 : 2002 SCC Cri. 1496: 2002
AIR S.C.W. 2523 : AIR 2002 SC 3064].
45
Krishnan v. State of TN Appeal (crl.) 631 of 2000
46
Bhodraj v. State of J&K Appeal (crl.) 921 of2000
47
Padala Veera Reedy v. State of A.P. AIR 1990 SC 79, 1990 (1) UJ 137 SC
48
State of Gujarat vs. Kishanbhai 2005 0 Supreme (Guj.) 567
Page 24 of 27
48. In the present case, the age of the victim at the time of incident was 11 years and the medical
evidence shows that she died out of asphyxia and definite opinion with regards to commission
of rape has not been given by the doctor conducting post-mortem. It has been further submitted
that none of the fact witnesses has seen the incident and they have not been able to say that the
accused caused the death of deceased or he has committed rape.
49. It is true that there is no evidence of any witness who might have seen the accused committing
rape and causing death of the victim and the prosecution case is based on circumstantial
evidence on the basis of last seen.49
50. In present case, there exists no evidence on record to corroborate the fact that neither public
hair nor semen of the accused was found from the samples of blood, etc. collected from the
body of the deceased. If this is in the position, it is improbable to infer confidence that the
accused was the person who had committed the offence alleged against him.
51. Looking to the system of law which we are following, it would not be possible to convict the
accused of the charges levelled against him because looking to the facts of the case benefit of
doubt will have to be given to him.
52. There can be no doubt that there have been remarkable technological advancements in forensic
science and in scientific investigations. These must be made fully use of and somewhat archaic
methods of investigations must be given up. In Krishna Kumar Malik v. State of Haryana,50
Court referred to Section 53-A of the Cr.P.C. and observed that after the enactment of this
provision with effect from 23rd June, 2006 “it has become necessary for the prosecution to go
in for DNA test in such type of cases, facilitating the prosecution to prove its case against the
accused”.
53. Insofar as the present case is concerned, there is no dispute that samples were not even taken
from the body of the accused and sent for DNA profiling. There is absolutely no explanation
for this and in the absence of any justification for not producing the DNA evidence, which
would be dangerous to uphold the conviction of the accused51 and the courts in sexual offences
should not ignore the rule about the admissibility of corroboration.52
49
State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224, Vilas Pandurang Patil v. State of Maharashtra, (2004) 6
SCC 158, Arun Bhanudas Pawar v. State of Maharashtra, 2008 (61) ACC 32 (SC), Vithal Eknath Adlinge v. State
of Maharashtra, AIR 2009 Supreme Court 2067 and Vijay Kumar v. State of Rajasthan, (2014) 3 SCC 412
50
Krishna Kumar Malik v. State of Haryana, (Crl.) No. 8021 of 2009
51
Ibid
52
Dilip and Anr. V. State of M.P. AIR 2001 SC 3049, 2001 ALD Cri 706, 2001 CriLJ 4721, 2001 (4), 2001 (4)
Crimes 105 SC, JT 2001 (8) SC 390, RLW 2002 (2) SC 328, 2001 (7) SCALE 51, (2001) 9 SCC 452
Page 25 of 27
54. This is a case where the prosecution wants to establish its case only on the basis of
circumstantial evidence. Looking to the settled position that in a case resting on circumstantial
evidence, the chain of evidence must be such that it excludes every hypothesis, but the one,
which is proposed to be proved. Any missing link would be fatal to the prosecution case.
55. In this case, there exists many missing links.53 The link which connects the accused and the
victim by way of medical evidence is also missing.
56. The prosecution is to see that correct facts are brought to the light and relevant evidence is
placed before this Hon’ble Court. In our opinion if the medical report was absolutely against
the prosecution, that is, in favour of the accused, in that case it was the duty of the prosecution
to place it before the court so as to assist the court in coming to the right conclusion in the
matter of deciding the case and to see that someone, who is in fact innocent, is not held guilty,
but the prosecution has completely failed.
57. The prosecution failed to investigate all the angles of the case and also did not examine the
accused neither his medical examination was done nor his blood samples were taken for
investigation in the present case.
53
State of Gujarat vs. Kishanbhai 2005 0 Supreme (Guj) 567
Page 26 of 27
PRAYER
PRAYER
Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it is
humbly prayed and implored before the Hon’ble Court
1. To dismiss all the charges which are imposed on Mr. Suresh of Section 302, 363, 201, 376
Dravidian Penal Code, 1860 and Section 6 of POCSO Act, 2012.
AND/OR
And any other relief that the Hon’ble Court may be pleased to grant in the interests of justice,
equity and good conscience.
All of which is respectfully submitted
Counsels for the Defence
Page 27 of 27

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EX COMMUNIQUE- NATIONAL TRIAL ADVOCACY COMPETITION-2023

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

FULL FORM ............................................................................................................................. 3

STATEMENT OF FACTS ........................................................................................................ 9

STATEMENT OF CHARGES ................................................................................................ 10

STATEMENT OF ISSUES ..................................................................................................... 11

SUMMARY OF ARGUMENTS ............................................................................................. 12

ARGUMENTS ADVANCED ................................................................................................. 13

WHETHER MR. SURESH BE LIABLE TO CONVICT UNDER SEC. 363 OF DPC OR

[2.1] ABSENCE OF CORE ELEMENTS OF CRIME ................................................... 16

(a) Mens rea could not be established .......................................................................... 16

[2.3] THERE EXISTS REASONABLE DOUBT ............................................................ 18

[3.1] RAPE WAS NOT COMMITTED BY MR. SURESH ........................................... 23

[3.2] ABSENCE OF CONNECTING LINK .................................................................... 24

ABBERVIATION FULL FORM

1. CASE LAWS USED:

26. R Shaji v State of Kerala, AIR 2013 SC 651 (para 19).

IV. ARTICLES, JOURNALS:

1. DJ LANHAM, ‘I ARSONNEUR REVISITED’, CRIMINAL LAW REVIEW, 1976,

STATEMENT OF FACTS STATEMENT OF FACTS

STATEMENT OF ISSUES STATEMENT OF ISSUES

ISSUE 1: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED

ISSUE 2: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED

ISSUE 3: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED

ISSUE 1: WHETHER THE MR. SURESH IS LIABLE TO BE CONVICTED UNDER

ISSUE 2: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER

ISSUE 3: WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER

WHETHER MR. SURESH

WHETHER MR. SURESH IS LIABLE TO BE CONVICTED UNDER SEC.

[2.1] ABSENCE OF CORE ELEMENTS OF CRIME

(a) Mens rea could not be established

(b) Actus reus is not established

[2.2] NO OFFENCE UNDER S. 302 DPC

[2.3] THERE EXISTS REASONABLE DOUBT

a) The prosecution to prove its case beyond reasonable doubt30

[3.1] RAPE WAS NOT COMMITTED BY MR. SURESH

[3.2] ABSENCE OF CONNECTING LINK

All of which is respectfully submitted

Counsels for the Defence

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