BEFORE THE HON’BLE SUPREME COURT OF AMPHISSACRIMINAL

APPELLATE JURISDICTION

UNDER ARTICLE 132 AND 134 OF THE CONSTITUTION OF AMPHISSA

Criminal Appeal No.- /2017

STATE OF PALLAKA.................................... Appellant

Versus

MICHAEL ………………………………Respondent

MEMORIAL ON BEHALF OF APPELLANT

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 TABLE OF CONTENT

Page No
1. List of Abbreviations-…………………………………………………… 3

2. Index of Authorities-……………………………………………………. 4

3. Statement of Jurisdiction-……………………………………………….. 5

4. Statement of Facts-……………………………………………………… 6-7

5. Arguments Presented-…………………………………………………… 8

6. Summary of Arguments-………………………………………………… 9

7. Arguments Advanced

Issues –I Whether this appeal petition is maintainable before the

Hon’ble Supreme Court……………………………………….. 10-11

Issues –II Whether accused is liable under Section-302 of IPC…………. 12

Issues –III Whether the conviction is possible on the basis of evidence….. 13

Issues –IV Whether the court’s decision acquitting the accused from the
charge of Section 302 of IPC is justifiable. ………………….. 14

8. Prayer-……………………………………………………………………… 15

MEMORIAL ON BEHALF OF APPELLANT

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 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

CRI CRIMINAL

CRILJ CRIMINAL LAW JOURNAL

FIR FIRST INFORMATION REPORT

DR. DOCTOR

SHO STATION HEAD OFFICER

ORS. OTHERS

R.I. RIGOROUS IMPRISIONMENT

SC SUPREME COURT

SCC SUPREME COURT CASES

V. VERSES

COI CONSTITUTION OF INDIA

COA CONSTITUTION OF AMPHISSA

IPC INDIAN PENAL CODE

PW PROSECUTION WITNESS

DW DEFENSE WITNESS

MEMORIAL ON BEHALF OF APPELLANT

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 INDEX OF AUTHORITIES

CASES

1. Delhi Judicial Service Association vs. State of Gujarat 1991 AIR 2176, 1991 SCR (3)
936.
2. Arunachalam vs P. S. R. Sadhanantham 1979 Air 1284
3. Indira Kaur And Ors. vs Sheo Lal Kapoor (1998) 2 SCC 488, 499 AIR 1988 SC 1074
4. Subramani an Swamy vs A. Raja, SLP (Crl.) No. 1688 of 2012
5. Bodhraj alias Bodha v. State of J & K, (2002) 8 SCC 45
6. Hanumant Govind Nargundkar case, AIR 1952 SC 343 : (1953 Cri LJ 129)
7. State of Uttar Pradesh v. Satish , 2005 (2) Scale 33
8. Shripad Shivram, Kulkarni v. State of Maharashtra,, AIR 1981 SC 34 (38)
9. State v. Shankar Prasad 1052 A 1776 :1952 Cr LJ 1334
10. State of MP v. Rammi ,1999 (1) JLJ 49 (MP)
11. State of MP v. Dharkale, AIR 2005 SC 44
12. State of WB v. Orilal Jaiswal, AIR 1994 SC 1418

CONSTITUTION AND STATUTE

1. The Constitution of India, 1950

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

BOOKS

1. Ratanlal and Dhirajlal, The Indian Penal Code, (33rd edition)

2. Ratanlal and Dhirajlal, The Law of Evidence, (26th Edition)
3. Sarkar, Law of Evidence, (17th Edition)
4. Sarkar, The Code of Criminal Procedure, (11th edition

MEMORIAL ON BEHALF OF APPELLANT

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 STATEMENT OF JURISDICTION

The appellant humbly submits this memorandum for the appeal filed before the Hon’ble
Supreme Court of Amphissa under Article 134 of the Constitution of Amphissa.

Article 132 states that:

An appeal to the Supreme Court from any judgment, decree or final order of a High
Court, whether in civil, criminal or other proceedings, if the High Court certifies that
the case involves a substantial question of law as to the interpretation of the
Constitution.

Article 134 states that:

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on
appeal reversed an order of acquittal of an accused person and sentenced him to death; or
has withdrawn for trial before itself any case from any court subordinate to its authority
and has in such trial convicted the accused person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub clause (c) shall lie subject to such provisions as may
be made in that behalf under clause ( 1 ) of Article 145 and to such conditions as the
High Court may establish or require

(2)Parliament may by law confer on the Supreme Court any further powers to entertain
and hear appeals from any judgment, final order or sentence in a criminal proceeding of a
High Court in the territory of India subject to such conditions and limitations as may be
specified in such law

MEMORIAL ON BEHALF OF APPELLANT

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 STATEMENT OF FACTS

1. That on dated-25/02/2008, Victim namely Late Jenny Daughter of Defrado, aged

about 24 years resident of Greater Ango Colony, Flemingo and respondent namely
Michael Son of Late John aged about 29 years resident of 54/3-New Ext. Apartment,
Flemingo were married according to their religious rituals.

2. Their marital life was going smoothly, but on some occasion Michael used to have
few verbal quarrels with victim, but victim always forgive the respondent regarding
his violent acts.

3. That after the two years of wedlock victim gave birth to a baby girl on dated-4th
September 2010 and the girl was named as Jennifer. After few months of the Jennifer,
victim observed certain changes in the behavior of Respondent.

4. That after the birth of baby child respondent started behaving in a rude way and he
usually becomes violent on every pretty issue without any reason. Initially victim did
not took the matter in serious way.

5. Victim took her husband (respondent) to the doctor Alfered (DW.1) who was a
psychiatrist. The DW.1 advised the respondent to have control over anger and to take
certain medicines. The DW. 1 diagnosed respondent to be suffering from first stage of
Bipolar mood disorder.

6. In spite of the medical treatment the violent behavior of respondent continued to exist.
On slight issues respondent becomes violent and he also started to fight with victim
and use to beat victim without any reason.

7. That on dated-5th December 2010 at 11A.M., loud noise of fighting, crying and
shouting coming from the house of respondent. On hearing the cry Daniel (PW.3)
who was neighbor of respondent went in house of respondent ad found victim lying
unconscious on the floor pooled in blood with various injuries on her body. At that
time PW.3 saw the respondent holding a 7 inch iron Axe in the garden.

8. That thereafter PW.3 called the police and the victim was taken to government
hospital whereby victim was treated under the observation of Doctor Andrew (PW.2).
Respondent was arrested by the police on the same day and was kept in police
custody.

9. That on 6th December 2010 victim regained her consciousness and her statement was
recorded by Jaison(PW.1) SHO of Flemingo Police station. In her statement victim
told to the police that on 5th December at 10 am respondent came home and started
fighting with victim in a violent way and when victim resisted respondent attacked
victim with axe kept in the garden.

10. On 8th December victim died because of the injury in her lower abdomen which
proved fatal. Jennifer the daughter of respondent was sent to Government Child Care
Centre.

MEMORIAL ON BEHALF OF APPELLANT

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11. On the basis of the statement of PW.3 and the dying declaration of victim FIR was
lodged against respondent vide. 733/2010 in Flemingo police station. Respondent was
prosecuted under Section 302 of IPC for the murder of victim. Final Report was
submitted on 3rd Feb.2011 in which respondent was charged for murder of victim
under Section 302 of IPC. The case (State of Pallaka vs. Michael) was tried by the
Session Court vide Session Trial No-57/2011.

12. That the Session Court found the respondent guilty for the intentional murder of the
Victim and convicted under Section 302 IPC and sentenced to 10 years Rigorous
Imprisonment.

13. The respondent feeling aggrieved by the said judgment preferred an appeal before the
High Court of Pallaka on dated 9th October 2014 vide Criminal Appeal No. 875/2014.
The High Court relying on the version of the DW.1 found that the accused at the time
of committing crime was suffering from both legal and medical insanity and
accordingly the Court acquitted the accused from the charge of murder on dated 5th
September 2016.

MEMORIAL ON BEHALF OF APPELLANT

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 ARGUMENTS ADVANCED

Issues -I: Whether this appeal petition is maintainable before the Hon’ble
Supreme Court.

Issues -II: Whether accused is liable under Section 302 of

IPC.

Issues –III: Whether the conviction is

possible on the basis of evidence.

Issues –IV Whether the court’s decision

acquitting the accused from the charge of
Section 302 of IPC isjustifiable.

MEMORIAL ON BEHALF OF APPELLANT

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 SUMMARY OF ARGUMENTS

Issues –I Whether this appeal petition is maintainable before the Hon’ble Supreme
Court.

It is humbly submitted before the honorable Supreme Court of Amphisaa that this appeal
petition is maintainable in this Court under article 132 and 134 of Constitution of Amphissa.
Also, the fact that the accused is liable for injuries (because both the Mens Rea as well as the
Actus Reus were present) was neglected when the accused was acquitted of the charge of
murder.

Issues-II Whether accused is liable under Section-302 of IPC.

It is humbly submitted before the honorable Supreme Court of Amphisaa that: the accused is
liable under Section 302 of IPC as all the ingredients required are being fulfilled. Injury in
lower abdomen which proved fatal was sufficient to cause death of victim. Injuries were
inflicted with the intention to murder her.

Issues –III Whether the conviction is possible on the basis of evidence.

It is humbly submitted before the honorable Supreme Court of Amphisaa that, conviction is
possible on the basis of evidence. As the arguments and authorities cited further established ,
conviction is possible on the basis of evidence when those circumstances satisfy the test
established by the Supreme Court for the same.

Issues –IV Whether the court’s decision acquitting the accused from the charge of
Section 302 of IPC is justifiable.

It is humbly submitted before the honorable Supreme Court of Amphisaa that, the High Court
of Pallaka’s decision acquitting the accused from the charges of Section 302 of IPC is not
justifiable because the fact reagarding the mens rea to cause the injury was present, was
neglected by the Hon’ble High Court of Pallaka. Injuries were the cause of the death of the
victim and injuries were intentionally inflicted by the accused on the victim.

MEMORIAL ON BEHALF OF APPELLANT

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 ARGUMENTS ADVANCED
Issues –I Whether this appeal petition is maintainable before the
Hon’ble Supreme Court.
It is most humbly submits before the honorable Supreme Court of Amphissa that this appeal
petition under article 132 and 134 of the constitution of Amphissa is maintainable in this
court.

Article 132 of the Constitution of Amphissa reads as follows:

An appeal to the Supreme Court from any judgment, decree or final order of a High
Court, whether in civil, criminal or other proceedings, if the High Court certifies that
the case involves a substantial question of law as to the interpretation of the
Constitution.

Article 134 of the Constitution of Amphissa reads as follows:

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence
in a criminal proceeding of a High Court in the territory of India if the High Court
has on appeal reversed an order of acquittal of an accused person and sentenced him
to death; or has withdrawn for trial before itself any case from any court subordinate
to its authority and has in such trial convicted the accused person and sentenced him
to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub clause (c) shall lie subject to such provisions as
may be made in that behalf under clause ( 1 ) of Article 145 and to such conditions as
the High Court may establish or require

(2)Parliament may by law confer on the Supreme Court any further powers to entertain
and hear appeals from any judgment, final order or sentence in a criminal proceeding
of a High Court in the territory of India subject to such conditions and limitations as
may be specified in such law

The power of the Court to hear appeals in this article is much wider and general. It vests in
the SC plenary jurisdiction in the matter of entertaining and hearing appeals against:-

(i) any judgment, decree, determination or order,

(ii) in any cause or matter,

(iii) Passed or made by any court or tribunal.

The Petitioner in the present case has filed the appeal under article 132 and 134 as the High
Court has acquitted the accused (respondent) for the offense of murder and hence is
maintainable.

MEMORIAL ON BEHALF OF APPELLANT

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1
In Delhi Judicial Service Association vs. State of Gujarat it was contended by the Supreme
Court that:- “Under Article 132 there is no room for any doubt that this Court has wide power
to interfere and correct the Judgment and orders passed by any court or Tribunal in the
country. In addition to the appellate power, the Court has special residuary power to entertain
appeal against any order of any court in the country. The plenary jurisdiction of this Court to
grant leave and hear appeals against any order of a court or Tribunal, confers power of
judicial superintendence over all the courts and Tribunals in the territory of India including
subordinate courts of Magistrate and District Judge. This Court has, therefore, supervisory
jurisdiction over all courts in India.”
2
In an another case of Arunachalam vs P. S. R. Sadhanantham, it was again contended by the
SC that:- "Article 132 of the Constitution of India invests the Supreme Court with a
plenitude of plenary, appellate power over all courts and Tribunals in India. The power is
plenary in the sense that there are no words in Article 136 itself qualifying that power. But,
the very nature of the power has led the court to set limits to itself within which to exercise
such power. It is now the well-established practice of this Court to permit the invocation of
the power under article 136 only in very exceptional circumstances, as when a question of
law of general public importance arises or a decision shocks the conscience of the Court. But,
within the restrictions imposed by itself, this Court has the undoubted power to interfere even
with findings of fact, making no distinction between judgments of acquittal and conviction, if
the High Court, in arriving at those findings, has acted "perversely or otherwise improperly".

Here there has been the respondent (accused) murdered the victim and then also the
respondent has been acquitted from the offence of murder U/s-302 of IPC committed by him.
This reckless behavior of High Court clearly proves that the decision was given perversely or
improperly. And therefore this petition is maintainable before the Supreme Court of
Amphissa.

In this case there has been a miscarriage of justice as the accused was acquitted by the High
Court despite of the commission of murder. This petition cannot be dismissed and hence is
maintainable in this Hon’ble court.
3
In case of Indira Kaur And Ors. vs Sheo Lal Kapoor, it was held as following:- “If and when
the Court is satisfied that great injustice has been done it is not only the 'right' but also the
'duty' of this Court to reverse the error and the injustice and to upset the finding
notwithstanding the fact that it has been affirmed thrice.”

In this case also this Hon’ble Court has not only but it is also the duty of the SC to reverse the
error and injustice and pass an appropriate, just and equitable order.

In the present case there has been injustice with the victim and the petitioner (state) being the
aggrieved party seeks justice. Therefore petitioner (State) has approached the Hon’ble
Supreme Court of Amphissa. Since the case is very sensitive, the petitioner has approached
the Supreme Court in order to obtain justice.

1
1991 AIR 2176, 1991 SCR (3) 936
2
1979 Air 1284
3
(1998) 2 SCC 488, 499 AIR 1988 SC 1074

MEMORIAL ON BEHALF OF APPELLANT

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Issues-II Whether accused is liable under Section-302 of IPC.
It is humbly submitted before the honorable Supreme Court of Amphissa that the accused is
liable under section 302 IPC as all the ingredients required are being fulfilled here.

300(1) IPC defines murder. – “Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the intention of causing death. ”

The accused is liable under section 302 IPC as he is liable for injuries.

Injuries were inflicted without any provocation and purely to kill the victim as he intended.
Her lower abdomen was brutally attacked through iron axe multiple times which cause the
death of victim, taking away her power to react and defend herself leading her into a state of
unconsciousness. The gravity of injuries inflicted severely negates the contention that, the
intention of the accused was only to hurt the victim. The sole motive of the accused seems to
inflict such injuries on the victim, which cause death of the victim. Accused's assault on the
victim was so violent.

The accused was wrongfully acquitted of the charge of murder because the Hon’ble High
Court of Pallaka could not reasonably ascertain the circumstances of the case and was misled
by the opposite counsel into believing the same. But, as the circumstances of the case with
regards to our arguments advanced prove, the accused is indeed liable for injury and therefore
must be convicted of the charge of murder.
4
In this case “Subramani an Swamy vs A. Raja, SLP (Crl.) No. 1688 of 2012” it has been
observed by the hon’ble Supreme Court that Mens rea is an important point to consider by
the High Court when a case was sent for its reference for the confirmation of a death sentence
under CrPC.

In the above cases, it has been observed that once a person has been convicted, normally, an
appellate court will proceed on the basis that such person is guilty. It is no doubt true that
even thereafter, it is open to the appellate court to suspend the sentence in a given case by
recording reasons. But it is well settled that in considering a prayer involving a serious
offence like murder punishable under Section 302 IPC, the Court should consider all the
relevant factors like the nature of accusation made against the accused, the manner in which
the crime is alleged to have been committed, the gravity of the offence, etc. It has also been
observed in some of the cases that normal practice in such cases is not to suspend the
sentence and it is only in exceptional cases that the benefit of suspension of sentence can be
granted.

4
SLP (Crl.) No. 1688 of 2012

MEMORIAL ON BEHALF OF APPELLANT

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Issues –III Whether the conviction is possible on the basis of evidence.
It is humbly submitted before the honorable Supreme Court of Amphissa that conviction is
possible on the basis of evidence. As the following arguments and authorities cited establish,
conviction is possible on the basis of evidence when those circumstances satisfy the tests
established by the Supreme Court for the same.

The Apex Court has held that there is no doubt that conviction can be based solely on
circumstantial evidence5, but it should be tested by touch stone of law relating to
circumstantial evidence laid down by Supreme Court6. It is well established that victims may
lie but circumstances do not7. A prosecution case may rest on circumstantial evidence only
but conviction is only possible when those circumstances are firmly established and further
points definitely towards the guilt of the accused8. There are four essentials that must be
fulfilled for conviction of the accused solely on the basis of the circumstantial evidence, the
conditions are:

 That the circumstance s from which the guilt is established must be fully proved;
 That all the facts must be consistent with the hypothesis of the guilt of the accused;
 That the circumstances must be of a conclusive nature and tendency;
 That the circumstances should, to a moral certainty, actually exclude every hypothesis
except the one proposed to be proved.9

All these four essentials are being fulfilled in this present case and thus, conviction solely on
this basis is possible and is hereby humbly sort

It is the humble view of the prosecution that, it is a rarest of rare case and all necessary
evidence including circumstantial evidence is sufficient enough to prove that the accused was
the murderer.

Section 136 IEA, 1872- Judge to decide as to admissibility of evidence.

—W hen either party proposes to give evidence of any fact, the Judge may ask the
party proposing to give the evidence in what manner the alleged fact, if proved, would
be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved,
would be relevant, and not otherwise. If the fact proposed to be proved is one of
which evidence is admissible only upon proof of some other fact, such last-mentioned
fact must be proved before evidence is given of the fact first mentioned, unless the
party undertakes to give proof of such fact , and the Court is satisfied with such
undertaking. If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence of the first
fact to be given before the second fact is proved, or require evidence to be given of
the second fact before evidence is given of the first fact.

5
Bodhraj alias Bodha v. State of J & K, (2002) 8 SCC 45
6
Hanumant Govind Nargundkar case, AIR 1952 SC 343 : (1953 Cri LJ 129)
7
State of Uttar Pradesh v. Satish , 2005 (2) Scale 33
8
Shripad Shivram, Kulkarni v. State of Maharashtra,, AIR 1981 SC 34 (38)
9
State v. Shankar Prasad 1052 A 1776 :1952 Cr LJ 1334

MEMORIAL ON BEHALF OF APPELLANT

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Issues –IV Whether the court’s decision acquitting the accused
from the charge of Section 302 of IPC is justifiable.
It is humbly submitted before the honorable Supreme Court of Sparta that the court’s decision
acquitting the accused from the charge of Section 302 of Indian Penal Code is not justified
because:

The fact, regarding the Mens Rea to cause the injury was present, was neglected by the High
Court of Pallaka. That The actual intention of the accused was to kill the victim and injury
was inflicted on her to make sure that the unconscious victim dies.

Injury was the cause of the death of the victim, and intentionally inflicted by the accused on
the victim. It has already been discussed above that the accused had the Mens Rea and is
liable for the Actus Reus of injuries which constituted the reason of death of the victim and
thus he is absolutely liable for murder.

The criminal jurisprudence as has developed in the basis of the British model is that the
offence alleged is required to be proved „beyond all reasonable doubt”. What is to be noted is
that the doubt, which is required to be removed, is of a reasonable man and not every kind of
doubt based on surmise or guess. “Reasonable doubt”, therefore, does not mean a vague,
speculative or whimsical doubt or uncertainty, nor a mere possible doubt of the truth of the
fact to be proved. It also does not mean proof of a mathematical certainty nor proof beyond
the possibility of a mistake. The requirement in criminal cases, of proof “beyond reasonable
doubt” to support conviction, therefore does not mean proof beyond all possible doubts. 10

Doubts would be called reasonable if they are free from a zest for abstract speculation. Law
cannot afford any favorite other than the truth. To constitute reasonable doubt, it must be free
from an over emotional response. Doubts must be actual and substantial doubts as to the guilt
of the accused person arising from the evidence or from the lack of it, as opposed to mere
vague apprehension. A reasonable doubt is not an imaginary, trivial or a merely possible
doubt, but a fair doubt based upon reason and commonsense. 11

Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or
lingering suspicions and thereby destroy social defense. Justice cannot be made sterile on the
plea that it is better to let hundred guilty escape than punish an innocent. Letting the guilty
escape is not justice, according to law.12

10
State of MP v. Rammi ,1999 (1) JLJ 49 (MP)
11
State of MP v. Dharkale, AIR 2005 SC 44
12
State of WB v. Orilal Jaiswal, AIR 1994 SC 1418

MEMORIAL ON BEHALF OF APPELLANT

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 PRAYER

It is hereinafter most humbly prayed before this Hon’ble Supreme Court of Amphissa that in
the light of issues raised, arguments advanced, authorities cited and pleadings made the
Hon’ble Court may be pleased to;

1. Grant the Appeal Petition under Article 132 and 134 of the Constitution of Amphissa.

2. Respondent should be punishable for the commission of Murder under section 302 of
IPC respectively.

3. Any other just and equitable order may be passed in the favor of the petitioner.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

MEMORIAL ON BEHALF OF APPELLANT

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MEMORIAL ON BEHALF OF APPELLANT Page 16 of 15