(P - TC 04) - Aviral Srivastava

TEAM CODE- 04
LEX EXPLORE 1ST NATIONAL MOOT COURT COMPETITION, 2023
Before
THE HON’BLE SUPREME COURT OF INDIVA
SPECIAL LEAVE PETITION NUMBER _______ / 2022
FILED UNDER ARTICLE 136 OF
THE CONSTITUTION OF INDIVA
IN THE CASE CONCERNING TO

AND
IN THE MATTER BETWEEN:
CHHOTELAL KUMAR [PETITIONER]
versus
THE STATE [RESPONDENT]
MEMORIAL for PETITIONER

TABLE OF CONTENTS
Table of Contents ...................................................................................................................... II
Index of Authorities ................................................................................................................. III
A. CASES REFERRED: ............................................................................................ III
B. BOOKS REFFERED ............................................................................................ IV
C. STATUTES REFFERED ....................................................................................... V
D. ARTICLE REFFERED .......................................................................................... V
Index of Abbreviations .......................................................................................................... VII
Statement of Jurisdiction....................................................................................................... VIII
Statement of Facts ................................................................................................................... IX
Issues Raised ............................................................................................................................. X
Summary of Arguments .......................................................................................................... XI
Arguments Advanced................................................................................................................. 1
issue-i The special leave petition filed by Mr. Chhotelal Kumar shall be maintainable in
Hon’ble supreme court of Indiva ........................................................................................... 1
ISSUE II Whether the diary written by Kiran kumara can be considered as a piece of dying
declaration? ............................................................................................................................ 3
ISSUE III Whether the judgement of Learned Trial Court and Hon’ble High Court is
erroneous? .............................................................................................................................. 6
ISSUE IV Whether section 304B & Section 498A of IPC, 1860 is unconstitutional?.......... 9
Prayer for Relief ....................................................................................................................... 14

INDEX OF AUTHORITIES
A. CASES REFERRED:
Sr CASES NAME Page

NO. No.
1. Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar, (2004) 5 SCC 1 2
2. Ashok Nagar Welfare Association v. R.K. Sharma, (2002) 1 SCC 749 2
3. Radha Mohan Singh @ Lal Saheb v. State of Uttar Pradesh, (2006) 2 SCC 2
450
4. Kunhayammed vs. State of Kerala, (2000) 6 SCC 359 2
5. Munshi Prasad v State of Bihar, 2001 CrLJ 4708 2
6. Ram Nath v. State of Madhya Pradesh, AIR 1953 SC 420 3
7. State of U. P. v. Ram Sagar Yadav, AIR 1985 SC 416 4
8. K. R. Reddy v. Public Prosecutor, 1976 (3) SCC 618 5
9. Amar Singh v. State of Madhya Pradesh, 1996 Cr LJ (MP) 1582 5
10. Ramilaben v. State of Gujarat, AIR 2002 SC 2996 5
11. Nallam Veera Stayanandam and others v. High Court of Andhra Pradesh, 7
PAGE | III
MEMORIAL for PETITIONER INDEX OF AUTHORITIES
(2004) 10 SCC 769
12. Dudh Nath Pandey v. State of U.P, (1981) 2 SCC 166 7
Ram Shankar and Ors v. state 2022 SCC OnLine MP 868

13. 8
14. Arnesh Kumar v. State of Bihar, 2014 8 SCC 273 11
15. Sushil Kumar v. UOI and Ors 2005 (6) SCC 281 121
B. BOOKS REFFERED
Sr.No. BOOKS & COMMENTARIES REFERRED
1. CONSTITUTIONAL - J.N. PANDEY
2. EVIDENCE ACT- BATUKLAL TWENTY THIRD EDITION
3. EVIDENCE ACT- KD GAUR (Lexis Nexis) SECOND EDITION
4. IPC- RATANLAL & DHIRAJLAL THIRTY FIRST EDITION
PAGE | IV
C. STATUTES REFFERED
Sr. no. STATUES
1. COUNSTITUTION OF INDIA 1950
2. EVIDENCE ACT 1872
3. INDIAN PENAL CODE 1860
D. ARTICLE REFFERED
Sr. No. ARTICLES REFERRED
1. Prime Legal, DYING DECLARATION, 2021
2. Ahona Mukherjee, EXPLORING THE CONCEPT OF DYING

DECLARATION, 4 (2) IJLMH Page 2126 - 2135 (2021)
3. Deepti Josephine Arul & Arun Kumar, ALIBI AS ONE OF THE BEST
FORMS OF EVIDENCE TO PROVE THE INNOCENCE OF THE
ACCUSED, IJIRL (2021)
4. Karan Godara, MISUSE OF SEC 498A IPC- Judicial Trend, IJR, Vol-4
Issue-9, (2015)
PAGE | V
5. Mitra, P. P., “A NEW LOOK ON MATRIMONIAL CRUELTY WITH

CRIMINAL LAW”, INDIAN BAR REVIEW, Vol 40, No. 1, pp. 87,
2013.
6. Jibin Mathew George, A CRITICAL OVERVIEW OF OFFENCES

AGAINST WOMEN UNDER THE INDIAN PENAL CODE,
Academike, (2015)
7. Lakshita Arya, THE FLIP SIDE SEC 498A, Journal of commerce and
educational thoughts, (2017)
PAGE | VI
INDEX OF ABBREVIATIONS
HON’BLE Honourable
Art Article
& And
Didn’t Did not
IPC Indian Penal Code
Const. Constitution
SC Supreme Court
Can’t Cannot
Sec Section
SLP Special Leave Petition
Acc. According
Ques. Question
Ors. Others
AIR All India Reports
SCC Supreme Court Cases
HC High court
ANR. Another
PAGE | VII
MEMORIAL for PETITIONER STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
THE COUNSEL FOR THE PETITIONERS, CHHOTELAL KUMAR, HEREBY HUMBLY

SUBMIT TO THIS HON’BLE COURT’S JURISDICTION UNDER ART-136 1OF THE
CONSTITUTION OF INDIVA.
THE RESPONDENT WOULD LIKE TO HUMBLY SUBMIT THAT THIS SPECIAL

LEAVE FOR APPEAL IS MAINTAINABLE.
1
INDIAN CONST. art. 136
PAGE | VIII
MEMORIAL for PETITIONER STATEMENT OF JURISDICTION
STATEMENT OF FACTS
1) Mr. Chhotelal Kumar & Kiran Kumar’s marriage was solemnized on 01/01/2020 as per
Hindu ceremonies. Chhotelal Kumar was an Engineer & Kiran Kumar was a reputed
Doctor. Kiran Kumar’s father was a prominent politician of the country.
2) Since the day of matrimonial ties Chhotelal Kumar and Kiran Kumar’s matrimonial life
was in doldrums, they were having many differences amongst them. The
Petitioner(Husband) was not able to maintain the high standards of his wife, so to fulfill
her needs he demanded money from her father so that he can take good care of her, as
he has promised to her father. He took several amounts from him and once he got
sufficient money he stopped taking money from her father and they both lived happily
after then. There were no quarrels between them.
3) The plea of the Husband was that when he came back from his office in the evening,
he found his wife hanging from the hook in the ceiling. Because of his nervousness, he
didn’t intimate the police.
4) Further taking the Plea of Alibi, he proved his presence by adducing the evidences that
he was there in the office at the time when the offence was committed.
5) When the body was sent for an examination, they found out ligature marks around the
neck and doctors opined that the death was caused due to strangulation. After the
investigation, a charge sheet was filed against the accused Chhotelal Kumar under Sec
304B & 498A of IPC.
6) The Learned Trial Court, didn’t go in to the plea of alibi. The Trial Court held that
because the case is of strangulation as the body has ligature marks, the death was
unnatural and thus held that there was cruelty on the part of the husband and convicted
him under Sec 304B & 498A of IPC and awarded the sentence of imprisonment for life.
7) The Appeal to the High Court was also dismissed as the court agreed to the conclusions
given by the Trial Court.
8) Aggrieved by this, Husband filed a Special Leave Petition under Art 136 of The Const.
of Indiva. The SC decided to hear the petition and framed the following issues.
PAGE | IX
MEMORIAL for PETITIONER SUMMARY OF ARGUMENTS
ISSUES RAISED
ISSUE-I Whether the Special Leave Petition filed by Chhotelal is maintainable?
ISSUE-II Whether the diary written by Kiran kumar can be considered as a piece of
dying declaration?
ISSUE-III Whether the judgement of Learned Trial Court and Hon’ble High Court is
erroneous?
ISSUE-IV Whether section 304B & Section 498A of IPC, 1860 is unconstitutional?
PAGE | X
SUMMARY OF ARGUMENTS
ISSUE-I Whether the Special Leave Petition filed by Chhotelal is maintainable?
It is humbly submitted before the Hon’ble court that the circumstances in which the SLP is
filled has been fulfilled by the appellant and the SLP is filled within the time period, The
Appellant has not filled any Petition in any the High court.
The trial court didn’t get into the PLEA OF ALIBI, the defence of alibi is a legitimate defence,
and in fact, is often the only evidence to show that a particular person is an innocent man and
has not committed any crime. In the judgement of preceding courts, the substantial question of
law is involved and grave injustice has been done by not getting into the PLEA OF ALIBI.
THUS SPECIAL LEAVE PETITION FILED BY PETITIONER IS MAINTAINABLE IN

HON’BLE SUPREME COURT OF INDIVA.
ISSUE-II Whether the diary written by Kiran kumara can be considered as a piece of
dying declaration?
It is humbly submitted before the Hon’ble court, that according to Sec 32(1) of Indian Evidence
Act, 1872 which states that when the statement is made by a person as to the cause of her death,
which resulted in her death, cases in which the cause of that person’s death comes into question.
In the present case, the statement made by Kiran Kumar in the diary found during investigation
is not sufficient to prove the cause of her death.
The cause of death must be explained by the declarant or at least the circumstances which
resulted in her death must be explained. The conditions for Admissibility of Dying declaration
has not been proved.
THUS, THE DIARY WRITTEN BY KIRAN KUMAR CAN’T BE CONSIDERED AS A

DYING DECLARATION.
PAGE | XI
ISSUE-III Whether the judgement of Learned Trial Court and Hon’ble High Court is
erroneous?
It is humbly submitted before the Honorable Supreme Court that the judgment given by the
learned trial court and the Hon’ble High Court should be considered erroneous as the dying
declaration should contain the cause of death which was missing from the dairy recovered by
the police during the investigation. The judgment was solely based on the dying declaration
and the defense plea of the alibi of the petitioner was not considered.
THUS, THE JUDGMENT OF LEARNED TRIAL COURT AND HON’BLE HIGH COURT
IS ERRONEOUS.
ISSUE-IV Whether section 304B & Section 498A of IPC, 1860 is unconstitutional?
It is humbly submitted by the petitioner that sections 304B and 498A OF IPC should be
considered unconstitutional as the sections are biased in nature on the grounds that it is violative
of Article 14 and Article 21 of the Indian constitution which states that The State shall not deny
to any person equality before the law or the equal protection of the laws within the territory of
India. And No person shall be deprived of his life or personal liberty except according to
procedure established by law respectively.
THUS, SEC 304B & 498A OF IPC IS UNCONSTITUTIONAL.
PAGE | XII
ARGUMENTS ADVANCED
ISSUE-I THE SPECIAL LEAVE PETITION FILED BY MR. CHHOTELAL KUMAR SHALL BE
MAINTAINABLE IN HON’BLE SUPREME COURT OF INDIVA
Art. 136 of Constitution of Indiva 2– Special leave to appeal by the Supreme Court
Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
Mr. Chhotelal Kumar has filed an appeal under Article 136 of Constitution of Indiva in Hon’ble
Supreme Court against the judgment and order of Hon’ble High Court. The appellant pleaded
for Acquittal u/s, 304-B3, 498 -A4 of I.P.C.
It is humbly submitted that this appeal from the judgment of Hon’ble High Court shall be
allowed by the Hon’ble Supreme Court because-:
[A]There was an illegality or any irregularity of procedure or violation of the principles

of natural justice resulting in absence of a fair trial or gross miscarriage of justice.
It is humbly submitted that the appellant was not given fair trial, it is well settled practice of
Supreme Court that when there has been an illegality or any irregularity of procedure or
violation of the principle of natural justice resulting in the absence of a fair trial or gross
miscarriage of justice, the Supreme Court permits a third review of evidences. Thus, in this
case there is need of third review of evidences as the judgment of Hon’ble High Court is not
fair, just and acc. to law.
In the present case, the trial court didn’t get into the PLEA OF ALIBI, the defence of alibi is a
legitimate defence, and in fact, is often the only evidence to show that a particular person is an
innocent man and has not committed any crime. In the judgement of preceding courts, the
substantial ques. of law is involved and grave injustice has been done by not getting into the
PLEA OF ALIBI.
2
INDIAN CONSTI. art. 136
3
INDIAN PENAL CODE, 1860, Sec 304-B
4
INDIAN PENAL CODE, 1860, Sec 498-A
PAGE | 1
MEMORIAL for PETITIONER ARGUMENTS ADVANCED
In the case of Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar5 This Court observed
that Article 136 is an “extraordinary jurisdiction” vested by the Constitution in the Supreme
Court with implicit trust and faith, and extraordinary care and caution has to be observed in the
exercise of this jurisdiction. The court further observed that Article 136 does not confer a right
of appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised on
the considerations of justice, call of duty and eradicating injustice.
[B] This case is an exceptional case and a suitable case for Supreme Court to interfere.
As held in the case of Ashok Nagar Welfare Association v. R.K. Sharma6 “It is well settled
that article 136 does not confer a right of appeal on any party, but it confers a discretionary
power on the Supreme Court to interfere in the suitable cases”
It is humbly submitted that as held in case of Radha Mohan Singh @ Lal Saheb v. State of
Uttar Pradesh7 that “Re-appreciation of evidences is permissible only if an error of law or
procedure and conclusions arrive at are perverse” and in this case there an error of law or
procedure neither the conclusions arrived are perverse.
In the case of Kunhayammed vs. State of Kerala8, The Supreme Court observed that Article
136 is of 2 distinct stages. The Court observed that while hearing the petition for special leave
to appeal, this court is called to see whether petitioner should be granted such a leave or not.
The Court observed that while hearing such a petition, this Court is not exercising its appellate
jurisdiction and is merely exercising its discretionary power to grant or not grant leave to
appeal.
The court observed that the petitioner is still outside the gate of entry though is aspiring to
enter the Appellate arena of Supreme Court and whether he enters or not shall depend
upon the fate of the petition for special leave.
In Munshi Prasad v State of Bihar9, it was held by the Supreme Court that: The word alibi,
a Latin expression means and implies in common acceptance elsewhere; it is a defense based
on the physical impossibility of participation in a crime by an accused in placing the latter in a
location other than the scene of crime at the relevant time, shortly put, the presence of the
5
Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar, (2004) 5 SCC 1
6
Ashok Nagar Welfare Association v. R.K. Sharma, (2002) 1 SCC 749
7
Radha Mohan Singh @ Lal Saheb v. State of Uttar Pradesh, (2006) 2 SCC 450
8
Kunhayammed vs. State of Kerala, (2000) 6 SCC 359
9
Munshi Prasad v State of Bihar, 2001 CrLJ 4708
PAGE | 2
accused elsewhere when an offence was committed.
Conditions for Admissibility of Special Leave Petition.
• SLP can be filed against any judgment or decree or order of any High Court
/tribunal in the territory of India.
• Or, SLP can be filed in case the High court refuses to grant the certificate of
fitness for appeal to Supreme Court of India.
• SLP can be filed against any judgment of High Court within 90 days from the date
of judgement.
• Or SLP can be filed within 60 days against the order of the High Court refusing to
grant the certificate of fitness for appeal to Supreme Court.
All the Conditions and Circumstances for the maintainability of SLP in the present case has
been fulfilled by the Appellant.
THUS, THE SPECIAL LEAVE PETITION FILED BY Mr. CHOTELAL KUMAR SHALL
BE MAINTAINABLE IN HON’BLE SUPREME COURT OF INDIVA.
ISSUE II WHETHER THE DIARY WRITTEN BY KIRAN KUMARA CAN BE CONSIDERED AS A
PIECE OF DYING DECLARATION?
In Section 32 (1)10 of Indian Evidence Act defines when the statement is made by the person
as the cause of his death, or as any of the circumstances of the transaction which resulted in his
loss of life, in cases in which the cause of that person’s death comes into question.
In the case of Sharad Birdhi Chand Sarda vs State of Maharashtra, the court held that in normal
circumstances, a suicide note cannot be used as the sole basis for conviction. It must be
corroborated with other substantive pieces of evidence (strong pieces of evidence).
In Ram Nath v. State of Madhya Pradesh11, Hon'ble Supreme Court held that: It is settled
law that it is not safe to convict an accused person merely on the evidence of a dying declaration
without further corroboration because such a statement is not made on oath and is not subject
10
INDIAN EVIDENCE ACT, 1860, Sec 32(1)
11
Ram Nath v. State of Madhya Pradesh, AIR 1953 SC 420
PAGE | 3
to cross-examination and because the maker of it might be mentally or physically in a state of

compassion and might be drawing upon his imagination while he was making the declaration.
Further In State of U. P. v. Ram Sagar Yadav 12. Hon'ble Supreme Court observed that, the
primary effort of the court is to find out whether the dying declaration is true. If it is, no question
of corroboration arises. It is only if the circumstances surrounding the dying declaration are
not clear or convincing then the court may, for its assurance, look for corroboration to the dying
declaration.
In the present case, merely on the basis of Diary written by deceased is not safe to convict Mr.
Chhotelal Kumar, there should be further corroboration because such statement cannot be cross
examined. The statement written in the diary is not enough to convince the court, for getting
confidence Court must look for further corroboration.
[A] Condition for Admissibility of Dying Declaration
a) The declarant who gave dying declaration should die.

b) The dying declaration must be complete.
c) It must be voluntary and uninfluenced.
d) The cause of death must be explained by the declarant.
e) The declarant who makes dying declaration, must be conscious and coherent.
f) The declarant must be of sound state in mind.
g) The cause of death of declarant must be in question.
In the present case, Condition for admissibility of Dying declaration has not been
proved. The cause of death must be explained by the declarant, but in the statement
written in Diary the cause of death has not been proved.
[B] Factors to Be Considered While Appreciating Dying declaration

The trial court has to see that dying declaration inspires full confidence as the maker of the
dying declaration is not available for cross-examination. Court should be satisfied that there
was no possibility of tutoring or prompting.
In the present case the statement made by Kiran Kumar cannot inspire full confidence.
Therefore, it is humbly submitted before the Hon’ble court that Diary written by Kiran Kumar
12
State of U. P. v. Ram Sagar Yadav, AIR 1985 SC 416
PAGE | 4
cannot be declared as Dying declaration.
In K. R. Reddy v. Public Prosecutor13evidentiary value of dying declaration was observed

as under:-
a) The dying declaration is undoubtedly admissible under section 32 and not being statement
on oath so that its truth could be tested by cross-examination.
b) The court has to apply the scrutiny and the closest circumspection of the statement before
acting upon it.
c) Great solemnity and sanctity is attached to the words of a dying man because a person on
the verge of death is not likely to tell lies or to connect a case as to implicate an innocent
person, yet the court has to be on guard against the statement of the deceased being a result of
either tutoring, prompting or a product of his imagination.
d) The court must be satisfied that the deceased was in a fit state of mind to make the
statement after the deceased had a clear opportunity to observe and identify his assailants and
that he was making the statement without any influence.
e) Once the court is satisfied that the dying declaration is true and voluntary, it can be
sufficient to record the conviction even without further corroboration.
[C] Exceptions to Dying Declaration
The exceptions of ‘Dying declaration’ stipulate, where the statements made by dying persons
are not admissible:
a) If the cause of death of the deceased is not in question: If the deceased made statement
before his death anything except the cause of his death, that declaration is not admissible in
evidence.
b) If the declarer is not a competent witness: Declarer must be competent witness. A dying
declaration of a child is inadmissible. In Amar Singh v. State of Madhya Pradesh, 1996 Cr
LJ (MP) 158214, it is held that without proof of mental or physical fitness, the dying
declaration is not reliable.
c) Inconsistent declaration: Inconsistent dying declaration has no evidential value.
d) Doubtful features: In Ramilaben v. State of Gujarat (AIR 2002 SC 2996)15: Injured died
7-8 hours after incident, four dying declarations recorded but none carried medical certificate.
13
K. R. Reddy v. Public Prosecutor, 1976 (3) SCC 618
14
Amar Singh v. State of Madhya Pradesh, 1996 Cr LJ (MP) 1582
15 Ramilaben v. State of Gujarat, AIR 2002 SC 2996
PAGE | 5
There were other doubtful features too, so it is not acted upon.

e) Influenced declaration: It must be noted that dying declaration should not be under
influence of anyone.
f) Untrue declaration: It is perfectly permissible to reject a part of dying declaration if it is
found to be untrue and if it can be separated.
In the present case, the cause of death has not been in a question because the deceased has
made the statement which doesn’t proof cause of death. Therefore, the diary written by Kiran
Kumar cannot be considered as dying declaration.
ISSUE III WHETHER THE JUDGEMENT OF LEARNED TRIAL COURT AND HON’BLE HIGH
COURT IS ERRONEOUS?
It is humbly submitted before the honorable supreme court that the judgment given by the
learned trial court and the Hon’ble high court should be considered erroneous.
They considered only dying declaration [A] and did not look into the factor of plea of alibi
taken by the petitioner [B].
[A] THE DIARY CAN NOT BE CONSIDERED AS A DYING DECLARATION
It is humbly submitted before the Honourable supreme court that the admissibility of the dairy
written by the deceased as the dying declaration is already challenged under issue 2nd.
As per the precedent established by the supreme court the in case State of U. P. v. Ram Sagar
Yadav16 it was observed that The primary effort of the court is to find out whether the dying
declaration is true. If it is, no question of corroboration arises. It is only if the circumstances
surrounding the dying declaration are not clear or convincing then the court may, for its
assurance, look for corroboration to the dying declaration.
In the present case the diary written by the deceased only mentions about the demands made
which does not conclude the cause of the death of the deceased.
16 State of U. P. v. Ram Sagar Yadav, AIR 1985 SC 416

PAGE | 6
As per Sec 32 of IPC17 defines when the statement is made by the person as the cause of his
death, or as any of the circumstances of the transaction which resulted in his loss of life, in
cases in which the cause of that person’s death comes into question.
The dairy recovered by the police during investigation cannot be considered ad dying
declaration as it does not full fill the essential of the Sec 32 of IPC. [ESTABLISHED UNDER
ISSUE 2ND]
In case of Nallam Veera Stayanandam and others v. High Court of Andhra Pradesh18,
Presumption under Section 113B of the Evidence Act is available to the prosecution; first
dying1 declaration is accepted Secondly presumption stands rebutted. Unless the prosecution
is able to establish that the cause of death was not accidental by evidence other than the dying
declarations, the prosecution case under Section 304B IPC as against the appellants must fail.
Similarly, here in the case were learned court considering only dairy as the dying declaration
cannot be considered as the sole evidence to convict the petitioner for dowry death. Thus, it is
humbly submitted that the learned court taking into consideration only dying declaration and
delivering the judgement without any corroboration is erroneous in nature.
[B] Plea of alibi was not considered
It is humbly submitted before the supreme court that the judgment delivered by the learned
court was on the sole basis of the diary written by the deceased considering it as the dying
declaration not considering the plea submitted by the petitioner.
The essence of a plea of alibi, was observed in the case of:
Dudh Nath Pandey v. State of U.P19. that: “The plea of alibi comes under the physical
impossibility of the accused that accused was present at the place of crime by the reason to
believe that his presence at another place. The plea of alibi can only be entitled that it is clearly
shown that the accused was a presence so foe the place of crime at the relevant time and he
was not present at the place where the offence was committed”
The petitioner took the stand of a plea of alibi stating that the petitioner was not at the scene at
17
INDIAN EVIDENCE ACT, 1872, Sec 32
18
Nallam Veera Stayanandam and others v. High Court of Andhra Pradesh, (2004) 10 SCC 769
19
Dudh Nath Pandey v. State of U.P, (1981) 2 SCC 166
PAGE | 7
the time of the commission of the crime.
It is humbly submitted that the appellants were not given a fair trial. It is established Supreme
Court practice to allow a third review of the evidence in cases where there has been an
illegality, procedural irregularity, or violation of the principle of natural justice that has led to
the absence of a fair trial or a serious miscarriage of justice. Therefore, a third examination of
the evidence is required in this instance since the Honourable High Court's decision was not
just, fair, or in accordance with the law.
In the present case, the trial court didn’t get into the PLEA OF ALIBI, the defence of alibi is a
legitimate defence, and in fact, is often the only evidence to show that a particular person is an
innocent man and has not committed any crime. In the judgement of preceding courts, the
substantial question of law is involved and grave injustice has been done by not getting into
the PLEA OF ALIBI.
A judgment delivered by the honorable court stated that “A case of circumstantial evidence is
primarily dependent upon the prosecution story being established by cogent, reliable and
admissible evidence. Each circumstance must be proved like any other fact which will, upon
their composite reading, completely demonstrate how and by whom the offense had been
committed.”20
In the present case, the learned court did not consider the plea and then the judgment was given
only on the basis of the dying declaration which is on a circumstantial basis which does not
prove the death of the deceased on because of the mentioned demands. According to the
judgment respondent should prove like any other facts to which respondents fail to do so.
It is humbly submitted that the precedent established by the supreme court in the case of
Nallam Veera Stayanandam and others v. High Court of Andhra Pradesh 21that
“We are of the opinion that if the contents of Ex. P-28(dying declaration) can be accepted as
being true then all other evidence led by the prosecution would not help the prosecution to
establish a case under section 304B IPC because of the fact that even a married woman harassed
by demand for dowry may meet with an accident and suffer a death which is unrelated to such
20
Ram Shankar and Ors v. state 2022 SCC OnLine MP 868
21
PAGE | 8
harassment.
Therefore, it is for the defense in this case to satisfy the court that irrespective of the prosecution
case in regard to the dowry demand and harassment, the death of the deceased has not occurred
because of that and the same resulted from a cause totally alien to such dowry demand or
harassment. It is for this purpose the appellants strongly place reliance on the contents of Ex.
P-28, therefore, we will have to now scrutinize the circumstances in which Ex. P-28 came into
existence and the truthfulness of the contents of the said document.”22
Similarly, in the present case only the dying declaration brought by the respondent should not
be considered to establish section 304B IPC because of the fact the petitioner was not at the
time of the crime and it is possible that the victim would have suffered from any other problem
which led to the result of death of Kiran Kumar.
Hence, it is humbly submitted before the Hon’ble supreme court the ag legation made in the
trial of the learned court was unfair and the respondent was unable to prove their allegation
beyond a reasonable doubt with solid pieces of evidence which fulfilled the essentials of the
law to convict the accused and considering which there was a violation of the principle of
natural justice. The plea of alibi is a legitimate defense that was not considered by the learned
court which brings to a conclusion that the judgment by the learned court and high court was
erroneous nature.
ISSUE IV WHETHER SECTION 304B & SECTION 498A OF IPC, 1860 IS UNCONSTITUTIONAL?
It is humbly submitted before the honorable supreme court that sections 304-B and 498-A of
IPC should be considered unconstitutional as it stands violative of article 14 23[A] and article
2124 [B].
[A] VIOLATION OF ARTICLE 14 (EQUALITY OF BEFORE THE LAW)
Article 14 of Indiva’s constitution states that “The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.”
22
23
24
PAGE | 9
Means Equality before Law basically means that all persons should be treated equally no matter
whether they are poor or rich, male or female, upper caste or lower caste. This state cannot
provide any special privileges to anyone in the country. It is also known as legal equality. As
per the section 304B AND 498A of the Indian penal code the they were established with the
motive to safe guard the women against the crime related to dowry demands made to them and
their family, to women who were harassed for purpose of dowry. But through the time there
have been many judgements which “have been given by the legal authorities mentioning the
section as to be misused. The charge of misuse is made particularly against Sec 498A of the
IPC and against the offence of dowry death in Section 304B. As per the Malimath Committee
report in criminal justice system also there is a ‘general complaint’ that 498A of the IPC are
subject to gross misuse”25
But with this, the major motive of the section i.e., to provide the safeguard to women is being
quashed and replaced with as a weapon. Now it has become legally recognized alibi in hands
of women in case of which she decides to leave the husband’s house and in-laws on
preposterous grounds and would still possess the entitlement of receiving alimony, rendering
the husband and his family wretched26.
It is humbly submitted before the court that the provision mentioned under these acts are solely
for the protection of the women and also the judgment delivered are mostly taking into
consideration of the women the judgements delivered are biased in nature.
There are some laws in Indian Penal Code like section 498-A, other sections under chapter
XXA of Cruelty and Domestic Violence Act, 2005 etc. have number of provisions to intimidate
men and their families. The effect of these laws is unjustified power in the hands of women for
blackmail and extortion in domestic disputes which irreparably damages the life of husbands
and their relatives and sometimes also becomes the reason for their death27
According to this Malimath Committee Report, it was laid down that once a complaint or FIR
25
The Flip Side: Section 498A Lakshita Arya College of Legal Studies, University of Petroleum and Energy
Studies, Dehradun, India 248007 Email: lakshitaarya95@gmail.com Received June 21, 2017; Revised July 10,
2017; Accepted July 14, 2017
26
Sarker, Joy, “A Doctrinal Research On Section 498A IPC, 1860 - A Critical Analysis”. Academia.edu. N.p.,
2017. Available at: https://www.academia.edu/9531210/ A_Doctrinal_Research_on_ Section_498a_IPC 1860_-
_A_critical_Analysis.
27
http://www.498a org/legal torture. html, 20 November 2010.
PAGE | 10
is lodged under section 498A or 40628 of Indian Penal Code, it becomes easy tool in the hands
of the police to arrest or threaten to arrest the husband and other relatives named in FIR without
even considering the intrinsic worth of allegations and making a preliminary investigation.29
Similarly, in the present case the petitioner also suffered the grief of losing his life partner but
was never fairly given a chance to be heard and defend himself from the allegation the learned
court without considering the plea of alibi convicted the petitioner solely depending on the
dairy written by the respondent. The petitioner was deprived of his fundament right of equality
before the law.
It is humbly submitted before the honorable supreme court that the constitutional validity of
this section it is violative of the principle of Equality amongst the gender, as at one side it has
been the area of incessant debate that both genders should be vested with equal rights and
privileges.
[B] VIOLATION OF ARTICLE 21 RIGHT TO LIFE
Article 21 of the Indiva’s constitution states that: “Protection of Life and Personal Liberty: No
person shall be deprived of his life or personal liberty except according to procedure
established by law.” Meaning Article 21 guarantees the right to life and personal liberty
to every person, which cannot be violated even by the state, except when stipulated by the
law to prevent encroachment on and the loss of life.
Due section 498 is a non-bailable offense and because of the false filling of the cases against
the husbands and in-laws the innocent people also suffer their integrity and liberty which
violates their fundamental right under article 21 of the Indian constitution.
The apex court in Arnesh Kumar’s case30 observed that a complaint under Sec 498-A allows
immediate arrest and jailing of the accused, since the offence is cognizable and non-bailable.
This is evidence of violation of human rights if the complaint is false and motivated. The apex
court also observed that complaints under Sec 498-A were being filed with an oblique motive
28
INDIAN PENAL CODE, 1860, Sec 406
29
Mitra, P. P., “A new look on matrimonial cruelty with criminal law”, Indian Bar Review, Vol 40, No. 1, pp. 87,
2013.
30
Arnesh Kumar v. State of Bihar, 2014 8 SCC 273
PAGE | 11
to wreck personal vendetta.31
Family reputation is being defamed in society due to the false implication which can lead to
difficulty in unmarried children of the husband’s family. In many families, husband or his
parents commit suicide due to the fear of false allegations put upon them. These are some
reported circumstances in which the family of the husband has been adversely affected. Along
with these circumstances, there are many other situations in which the husband and his family
are tortured and dominated in lieu of these provisions which can adversely affect the mental
health of the husband and in-laws. 32
As per above mentioned false allegation against innocents leads to mental agony which leaves
lifetime scars on the reputation of the family and the people involved in it.
The Court, therefore, held clearly that there was a misuse and exploitation of provisions to such
an extent that it was hitting at the foundation of the marriage itself and proved to be not so good
for the health of society at large. Court further believes that the authorities and lawmakers had
to review the situation and legal provisions to prevent such from taking place.33
Justice Malimath Committee on Reforms of Criminal Justice System, Government of Indiva,

Ministry of Home Affairs, 2003 observed the following and gave the recommendation to
amend the law immediately: The Code may be suitably amended to make the offence under
Section 498-A of the IPC, bailable and compoundable.
These are only a few observations of their lordships from scores that conclusively prove that:
A woman (not necessarily every woman) can be much crueler than a man (not necessarily
every man). While intending to protect the life of a person, Section 498A of IPC
jeopardizes around a dozen innocent persons. Hence, the provision is discriminatory and
in violation to Article 14 of the Constitution of Indiva. Instead of restoring equilibrium,
the provision aggravates disequilibria. Hence, there is a failure of guarantee of right to
life under Article 21 of the Constitution of Indiva. For the reasons stated is not only
imbalanced but also ultra-virus.
31
Sushil Kumar v. UOI and Ors 2005 (6) SCC 281
32
Justice Reddi, P., Section 498A IPC, New Delhi: Law Commission of India, 2012.
http://lawcommissionofindia.nic.in/reports/report243.pdf.
33
A Critical Overview Of Offences Against Women Under The Indian Penal Code – Academike, 2016.
https://www.lawctopus.com/academike/critical-overview-offences-women-indian-penal-code/
PAGE | 12
The fact that sec 498-A is a cognizable and non-bailable offense has lent it a dubious place of
pride amongst the provisions that are used as weapons rather than shields by disgruntled wives.
The simplest way to harass is to get the husband & his relatives arrested under this provision.
In a quite number of cases, bed-ridden grand-fathers & grand-mothers of husbands, their sisters
living abroad for decades are arrested”34
Along with the protection to the women, it should also be extended to the male members as
according to the data many husbands and their family who are innocent have been affected.
And in generality, the voice of victimized men is neither valued in society, not law. Since this
section sometimes tends to be biased and because of that along with him whole family suffers,
therefore, it can be rightly concluded that this section from its very motive was inserted with
the objective of safeguarding women from cruelty by his husband or in-laws or relatives but
now it is being abused, therefore, measures are required to be taken to curtail further growth of
misuse of this provision.
Hence, it is humbly submitted before the supreme court that section 304A and 498B is ultra-
vires in nature and violative of article 14 and 21 of the Indiva’s constitution they should be
held unconstitutional.
34
https://www.worldwidejournals.com/paripex/file.php?val=September_2015_1443778417__81.pdf
PAGE | 13
PRAYER FOR RELIEF
In the light of the above facts stated, issues raised, arguments advanced and authorities cited,
the Respondent humbly prays before the Hon’ble Court to be graciously pleased to declare:
1. The SLP filed by the Petitioner was maintainable as the substantial question of law was
involved.
2. The diary shall not be considered as a piece of sole evidence for the Dying Declaration
3. The order given by the Trial Court and the Hon’ble High Court was erroneous.
And may pass any other order that it may deem fit in the ends of justice, equity, and good
conscience. All of which is respectfully submitted.
PAGE | 14
MEMORIAL for PETITIONER PRAYER FOR RELIEF

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TEAM CODE- 04

LEX EXPLORE 1ST NATIONAL MOOT COURT COMPETITION, 2023

THE HON’BLE SUPREME COURT OF INDIVA

SPECIAL LEAVE PETITION NUMBER _______ / 2022

FILED UNDER ARTICLE 136 OF

THE CONSTITUTION OF INDIVA

IN THE CASE CONCERNING TO

IN THE MATTER BETWEEN:

CHHOTELAL KUMAR [PETITIONER]

THE STATE [RESPONDENT]

MEMORIAL for PETITIONER

Table of Contents ...................................................................................................................... II

Index of Authorities ................................................................................................................. III

A. CASES REFERRED: ............................................................................................ III

B. BOOKS REFFERED ............................................................................................ IV

C. STATUTES REFFERED ....................................................................................... V

D. ARTICLE REFFERED .......................................................................................... V

Index of Abbreviations .......................................................................................................... VII

Statement of Jurisdiction....................................................................................................... VIII

Statement of Facts ................................................................................................................... IX

Issues Raised ............................................................................................................................. X

Summary of Arguments .......................................................................................................... XI

Prayer for Relief ....................................................................................................................... 14

Sr CASES NAME Page

2. Ashok Nagar Welfare Association v. R.K. Sharma, (2002) 1 SCC 749 2

4. Kunhayammed vs. State of Kerala, (2000) 6 SCC 359 2

5. Munshi Prasad v State of Bihar, 2001 CrLJ 4708 2

6. Ram Nath v. State of Madhya Pradesh, AIR 1953 SC 420 3

7. State of U. P. v. Ram Sagar Yadav, AIR 1985 SC 416 4

8. K. R. Reddy v. Public Prosecutor, 1976 (3) SCC 618 5

9. Amar Singh v. State of Madhya Pradesh, 1996 Cr LJ (MP) 1582 5

10. Ramilaben v. State of Gujarat, AIR 2002 SC 2996 5

(2004) 10 SCC 769

12. Dudh Nath Pandey v. State of U.P, (1981) 2 SCC 166 7

Ram Shankar and Ors v. state 2022 SCC OnLine MP 868

14. Arnesh Kumar v. State of Bihar, 2014 8 SCC 273 11

Sr.No. BOOKS & COMMENTARIES REFERRED

1. CONSTITUTIONAL - J.N. PANDEY

2. EVIDENCE ACT- BATUKLAL TWENTY THIRD EDITION

3. EVIDENCE ACT- KD GAUR (Lexis Nexis) SECOND EDITION

4. IPC- RATANLAL & DHIRAJLAL THIRTY FIRST EDITION

Sr. no. STATUES

1. COUNSTITUTION OF INDIA 1950

2. EVIDENCE ACT 1872

3. INDIAN PENAL CODE 1860

Sr. No. ARTICLES REFERRED

1. Prime Legal, DYING DECLARATION, 2021

2. Ahona Mukherjee, EXPLORING THE CONCEPT OF DYING

5. Mitra, P. P., “A NEW LOOK ON MATRIMONIAL CRUELTY WITH

6. Jibin Mathew George, A CRITICAL OVERVIEW OF OFFENCES

Didn’t Did not

IPC Indian Penal Code

SLP Special Leave Petition

AIR All India Reports

SCC Supreme Court Cases

THE COUNSEL FOR THE PETITIONERS, CHHOTELAL KUMAR, HEREBY HUMBLY

THE RESPONDENT WOULD LIKE TO HUMBLY SUBMIT THAT THIS SPECIAL

ISSUE-I Whether the Special Leave Petition filed by Chhotelal is maintainable?

ISSUE-I Whether the Special Leave Petition filed by Chhotelal is maintainable?

THUS SPECIAL LEAVE PETITION FILED BY PETITIONER IS MAINTAINABLE IN

THUS, THE DIARY WRITTEN BY KIRAN KUMAR CAN’T BE CONSIDERED AS A

THUS, SEC 304B & 498A OF IPC IS UNCONSTITUTIONAL.

MAINTAINABLE IN HON’BLE SUPREME COURT OF INDIVA