BEFORE THE HON’BLE HIGH COURT OF PUNJAB AND

HARYANA, AT CHANDIGARH

Cri. Appeal No. XX of 2023

In the Matter of

Harish …………………………………………...………………………………………

Appellant

Versus

State of Punjab …………………………………………………………………..

Respondent

Appeal u/s 374 of the code of criminal procedure, 1973

Most Respectfully Submitted before The Hon’ble Chief Justice

of Punjab and Haryana High Court and His Companion Judge
MEMORIAL ON BEHALF OF APPELLANT

TABLE OF CONTENTS

Table of Abbreviations..............................................................................................................
Index of Authorities...................................................................................................................
Statement of Jurisdiction….......................................................................................................
Summary of Facts......................................................................................................................
Issues
Raised…..........................................................................................................................
Summary of Arguments...........................................................................................................
Arguments Advanced…..........................................................................................................
1. Whether the present appeal is maintainable or not?....................................................
2. Whether the present case falls under an exception of IPC or not?..............................
3. Whether the trial court has made any error in appreciating the evidences
present before
it?.................................................................................................................................
Prayer…..................................................................................................................................
TABLE OF ABBREVIATIONS

¶ Paragraph

& And

AIR All India Reporter

A.P. Andhra Pradesh

Approx. Approximately

BPD Bipolar Disorder

Cri. Criminal

HC High Court

Hon’ble Honorable

IEA Indian Evidence Act

IPC Indian Penal Code

LJ Law Journal

Narco Narcotic

NCT National Capital Territory

Ors. Others

Pat Patna

Sec Section

SC Supreme Court

SCC Supreme Court Cases

i.e., That is

CrPC The Code of Criminal Procedure

U/S Under Section

U.P. Uttar Pradesh

Vs Verses

INDEX OF AUTHORITIES
 1. STATUES AND CONSTITUTION
1. The Constitution of India, 1950.
2. The Code of Criminal Procedure, 1973.

3. The Indian Penal Code, 1860.

4. The Indian Evidence Act, 1872.

1. WEB RESOURCE
1. www.manupatrafast.com (MANUPATRA)

2. www.supreme-today.com(SUPREME TODAY)

3. www.jstor.org (JSTOR)
4. www.scconline.com (SCC ONLINE)

5. www.latestlaws.com (LATEST LAWS)

6. www.livelaw.in (LIVE LAW)
7. www.barandbench.com (BAR AND BENCH)
8. www.indialawlibrary.com (India Law library )
1. BOOKS AND DICTIONARY
1. Constitutional Law of India, By J.N. Pandey
2. Indian Constitution Law, By M P Jain
3. Principles of Administrative Law, By M.P. Jain and S.N. Jain
4. Constitution of India, By D.D. Basu
5.
A OF MEDICAL JURISPRUDENCE AND TOXICOLOGY, BY JAISING P. MODI & K.
KANNAN, (lexisnexis 26) (2021)

6.
FORENSIC EVIDENCE , BY R RAMACHANDRAN
7.
ICD 10: INTERNATIONAL STATISTICAL CLASSIFICATION OF
DISEASES AND
RELATED HEALTH PROBLEMS (world health organization) (2009)
8.
SAUNDRA K. CICCARELLI & J. NOLAND WHITE, PSYCHOLOGY:
DSM 5 (pearson) (2014)

1. CASE LAWS CITED

Sr. No Name of the case and Citation
1. Ravinder Singh @ Kaku Vs. State of Punjab (2022) AIR(SC) 2726

2. Hukam Singh v. State of Rajasthan AIR (1977 SC 1063)

3. Eradu and Ors. v. State of Hyderabad AIR 1956 SC 316

4. Earabhadrappa @ Krishnappa v. State of Karnataka AIR 1983 SC 446

5. State of U.P. v. Sukhbasi and Ors. AIR 1985 SC 1224

6. Balwinder Singh @ Dalbir Singh v. State of Punjab AIR 1987 SC 350

7. Ashok Kumar Chatterjee v. State of M.P AIR 1989 SC 1890

8. Bhagat Ram v. State of Punjab AIR 1954 SC 621

9. C. Chenga Reddy and Ors. v. State of A.P (1996) 10 SCC 193

10. State of Rajasthan Vs Jabariya @ Jabbar 2016 1 Crimes(HC) 704

11. Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra AIR 1973 SC 2622

12. Ramesh Babulal Doshi Vs. State of Gujarat AIR 1996 SC 2033

13. Jaswant Singh Vs. State of Haryana AIR 2000 SC 1833

14. Raj Kishore Jha Vs. State of Bihar and Ors AIR 2003 SC 4664
15. State of Punjab Vs. Karnail Singh AIR 2003 SC 3609
16. State of Punjab v. Pohla Singh and Anr.2002 (7) Supreme 17
17. State Of Himachal Pradesh Vs. Naveen Kumar (2019) 3 SCC(Cri) 149
18. Bhagwan Singh and Ors. v. State of Madhya Pradesh 2002 (2) Sup 567
19. Kamala Bhuniya Vs State of West Bengal 2006 (3) Crimes 92
20. Devidas Loka Rathod Vs. State of Maharashtra (2018) AIR(SC) 3093
21. Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (1964) 7 SCR 361
22. Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495
23. State of Rajasthan v. Shera Ram (2012) 1 SCC 602
24. Ratan Lal v. State of Madhya Pradesh (1970) 3 SCC 533
25. D.G. Thakker v. State of Gujarat (1964) AIR(SC) 1563
26. Vijayee Singh v. State of U.P. (1990) 3 SCC 190
27. Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495
28. State of Rajasthan v. Shera Ram (2012) 1 SCC 602
29. Sawai Singh, son of Gulab Singh Vs The State of Rajasthan 2020 0 Supreme(Raj) 12
30. Mohinder Singh v. State, AIR 1953 SC 415; 1953 Cr.L.J. 1761.
31. Ishwar Singh v. State of U.P. AIR 1976 SC 2423 See also Kartarey v. State of UP, AIR
1976 SC 76: 1976 Cr.L.J. 13.
32. Kartarey v. State of UP, AIR 1976 SC 76: 1976 Cr.L.J. 13

33. Mohinder Singh v. State, AIR 1953 SC 415; 1953 Cr.L.J. 1761
 34. Kansa Behera. v. State of Orissa. AIR 1987 SC 1507

35. Surinder Singh v. State of Punjab: 1989 SCC (Cri) 649: 1989 ACC 382 :(1989) Supp
(2) SCC 21

36. Santokben Sharmanbhai Jadeja v. State of Gujarat

37. Digamber Vaishnav & another vs. State of Chhattisgarh

38. C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193

39. Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622).

40. State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104),

41. Nagaraj vs. State represented by Inspector of Police, (2015) 4 Supreme Court Cases
739,

42. Surinder Pal Jain vs. Delhi Administration 1993 SCR (2) 226

43. Pannayar vs. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152

44. Gosu Jairami Reddy & Another vs. State of Andhra Pradesh (Criminal Appeal No.
1321 of 2006 decided on 26.07.2011)

45. Munish Mubar vs. State of Haryana (Crl. Appeal No. 294/2010)

- Statement of Jurisdiction -

The present criminal appeal is submitted before the Hon’ble Court under the jurisdiction of
section 347 of THE CODE OF CRIMINAL PROCEDURE,1973 which reads as:
(1) Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other court in which a sentence of imprisonment for

more than seven years has been passed against him or against any other person
convicted at the same trial], may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person, --
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions
Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate, may appeal to the Court of Session.

- Summary of Facts -

DISCOVERY OF MURDERS: On 2nd October 2020, at about 7.30 AM Mahender

Kumar, the milkman came to deliver milk at the Malhotra’s residence in Mohali, no one
answered the bell. When he went inside, he found the dead body of Rahul and his mother.
He informed the neighbors who further called the Police. Police arrived and searched the
house but they found no one. Soon Harish came back from the backyard and showed
surprise to see the police. On being questioned, he said that he had just woken up and had
gone to the backyard to get himself some fresh air. He also informed that his father was in
Bengaluru for his job assignment.
CONDITION OF RAHUL: Harish said that Rahul was his twin brother who was good
in studies and working at a corporate firm. He himself was an assistant supervisor in a
construction company. Both of them were living with their parents and they were a happy
family. Harish also mentioned about weird behavior of John since his childhood. He
stated some incidents that how Rahul used to scare Harish at night, how he threatened
him, how he used to scream at night and how he tried to kill Harish by putting pillow on
his face. Rahul used to forget everything on next morning, so he was taken to doctor by
his parents who after diagnosis and consultation declared that Rahul has Bi-polar
Disorder. The doctor advised medication which was also increased later and to keep strict
vigil on him.
ABSCONDING OF RAMESH: Harish mentioned about the domestic help Ramesh who
stays with them. He was originally from Bihar and his police verification was pending.
Some of the household valuables were also found missing as per the statement of Harry
but later found in his cupboard. The police caught Ramesh after ten days from Sirsa, and
found money from his bag which he claimed that he has saved. He stated that murder has
been committed by Harish to take revenge from the brother.
INVESTIGATION OF POLICE: Both Harish and Ramesh were charged under Section
302 read with 34 of IPC. The police found the blood-stained knife hidden in a plastic bag
from the garage. With the written consent of Harish, two NARCO tests were conducted
on Harish and both the tests were opposite to each other. Both Harish and Ramesh have
accused each other for the murders. Harish’s father mentioned that Harish is also taking a
behaviour therapy. A lot of medicine was also recovered from Harry’s bed side drawer.
After the trial, both Ramesh and Harish were convicted and punished both with life
imprisonment. Hence, the present petition was filed by Harish before this hon’ble court.

- Issues Raised -

ISSUE I
 WHETHER THE PRESENT APPEAL IS MAINTAINABLE OR NOT?

ISSUE II
WHETHER THE PRESENT CASE FALLS UNDER AN EXCEPTION OF IPC OR
NOT?

ISSUE III
WHETHER THE TRIAL COURT HAS MADE ANY ERROR IN APPRECIATING
THE EVIDENCES PRESENT BEFORE IT?

SUMMARY OF ARGUMENTS

1. Whether the present appeal is maintainable or not?

 It is most humbly submitted before this Hon’ble court that the Ld. Trail court didn’t fully
appreciate the evidences presented forth and an exception was not provided to the
appellants with such a lacuna of law an appeal may be presented before the high court.

2. Whether the present case falls under an exception of ipc or not?

It is most humbly submitted that the present case falls under the exception of IPC as the
act of appellant Harry happens to fall under the category of legal insanity U/S 84 of IPC,
the bare language of the section stands as 84. Act of a person of unsound mind. Nothing is
an offense which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing
what is either wrong or contrary to law.

3. Whether the trial court has made any error in appreciating the evidences present
before it?
It is most respectfully submitted before this honorable High Court that the trial court have
made a pertinent error in appreciating the evidences present before it. Firstly, there were
no direct evidences in the present case. All the circumstantial evidences do not form a
clear chain of events which proves the liability of Harry beyond a reasonable doubt. The
murder weapon which was recovered from the garage was not sent for fingerprinting, so it
cannot be relied upon. The two NARCO tests done on Harry were also contradictory to
each other, so they were left with no evidentiary value. No motive has been proved by
prosecution

ARGUMENTS ADVANCED
Respectfully showeth, For the brevity of this Hon’ble Court the counsels hereby submit the
 Arguments contended in the Appeal:
I. Whether the present appeal is maintainable or not?
[¶1] It is most humbly submitted before this Hon’ble court that the present appeal is
maintainable under section 374 of CrPC which reads as follows 374. Appeals from
convictions.

1. Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
2. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other court in which a sentence of imprisonment for
more than seven years has been passed against him or against any other person
convicted at the same trial], may appeal to the High Court.
3. Save as otherwise provided in sub-section (2), any person, --
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions
Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate, may appeal to the Court of Session.

[¶2] The current appeal lies on the basis that the Ld. trial court didn’t correctly appreciate
the evidences and well as failed to provide the exception available to the accused. In the
case of Ravinder Singh @ Kaku Vs. State of Punjab 1 This court has consistently held
in a long line of cases Hukam Singh v. State of Rajasthan2; Eradu and Ors. v. State of
Hyderabad3; Earabhadrappa @ Krishnappa v. State of Karnataka4; State of U.P. v.
Sukhbasi and Ors.5;

1 Ravinder Singh @ Kaku Vs. State of Punjab, (2022) AIR(SC) 2726.

2 Hukam Singh v. State of Rajasthan, AIR (1977 SC 1063).
3 Eradu and Ors. v. State of Hyderabad, AIR 1956 SC 316.
4 Earabhadrappa @ Krishnappa v. State of Karnataka, AIR 1983 SC 446.
5 State of U.P. v. Sukhbasi and Ors., AIR 1985 SC 1224.
Balwinder Singh @ Dalbir Singh v. State of Punjab6; Ashok Kumar Chatterjee v. State of
M.P.7 that where a case rests squarely on circumstantial evidence, the inference of guilt
 can be justified only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused. The circumstances from which an
inference as to the guilt of the accused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with the principal fact sought to be
inferred from those circumstances.
[¶3] In Bhagat Ram v. State of Punjab8, it was laid down that where the case depends upon the
conclusion drawn from circumstances, the cumulative effect of the circumstances must be such
as to negate the innocence of the accused and bring the offence home beyond any reasonable
doubt. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors.
v. State of A.P.9, wherein it has been observed that: "In a case based on circumstantial evidence,
the settled law is that the circumstances from which the conclusion of guilt is drawn should be
fully proved and such circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete 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 ".
[Emphasis supplied]
[¶4] In the case of State of Rajasthan Vs Jabariya @ Jabbar10 Singh it was held that “There
was no eye witness in present case and prosecution has connected accused respondent with
commission of crime on the basis of circumstantial evidence—No blood was found on weapon
of offence during forensic test and said weapon cannot be connected with offence— Prosecution
has failed to prove that blood on articles is of same blood group of deceased— Recovery of
blood stained clothes and shoes of accused respondent is not sufficient to connect him with
crime— Prosecution has failed to fully establish guilty of accused on the basis of circumstantial
evidence— Circumstantial evidence produced by prosecution was not conclusive in nature and
from said evidence it cannot be inferred that in all human probabilities accused respondent has
committed murder of deceased —Trial court rightly acquitted accused respondent from offence
punishable under Section 302 IPC” The principle to be followed by appellate Court considering
the appeal against the judgment of acquittal is

6 Balwinder Singh @ Dalbir Singh v. State of Punjab, AIR 1987 SC 350.

7 Ashok Kumar Chatterjee v. State of M.P, AIR 1989 SC 1890.
8 Bhagat Ram v. State of Punjab, AIR 1954 SC 621.
9 C. Chenga Reddy and Ors. v. State of A.P, (1996) 10 SCC 193.
10 State of Rajasthan Vs Jabariya @ Jabbar, 2016 1 Crimes(HC) 704.

to interfere only when there are compelling and substantial reasons for doing so. If the
impugned judgment is clearly unreasonable and relevant and convincing materials have
 been unjustifiably eliminated in the process. It is a compelling reason for interference.
These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Another Vs.
State of Maharashtra, 11, Ramesh Babulal Doshi Vs. State of Gujarat12, Jaswant Singh Vs.
State of Haryana13, Raj Kishore Jha Vs. State of Bihar and Ors14, State of Punjab Vs.
Karnail Singh15, and State of Punjab v. Pohla Singh and Anr.16.

17
[¶5] In the case of State Of Himachal Pradesh Vs. Naveen Kumar Aggrieved by the
above order of conviction, the accused persons preferred an appeal before High Court.
The High Court, upon finding lack of evidence against the accused-Respondent and
four other accused persons, allowed their appeal and acquitted
them, while upholding the conviction of the other two accused persons. It is humbly
submitted before the hon’ble court that in the present case there happens to be no
consistency in circumstantial evidence as well as any direct evidence incriminating the
appellant.

11Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, AIR 1973 SC 2622.
12Ramesh Babulal Doshi Vs. State of Gujarat, AIR 1996 SC 2033.
13Jaswant Singh Vs. State of Haryana, AIR 2000 SC 1833.
14Raj Kishore Jha Vs. State of Bihar and Ors, AIR 2003 SC 4664.
15State of Punjab Vs. Karnail Singh, AIR 2003 SC 3609.
16State of Punjab v. Pohla Singh and Anr, 2002 (7) Supreme 17.
17State Of Himachal Pradesh Vs. Naveen Kumar, (2019) 3 SCC(Cri) 149.

II. Whether the present case falls under an exception of IPC or not?
[¶6] It is most humbly submitted that the present case falls under the exception of IPC as the act
of petitioner Harish happens to fall under the category of legal insanity U/S 84 of IPC, the bare
language of the section stands as 84. Act of a person of unsound mind. Nothing is an offense
which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to
law.
[¶7] There is no embargo on the appellate Court reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal shall not be interfered with because the
presumption of innocence of the accused is further strengthened by acquittal. The golden thread
which runs through the web of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favorable to the accused should be adopted. The
paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon
the appellate Court to re-appreciate the evidence where the accused has been acquitted, for
the purpose of ascertaining as to whether any of the accused really committed any offence or
not. This was held in Bhagwan Singh and Ors. v. State of Madhya Pradesh.18
2.1 LEGAL INSANITY

[¶8] In the present case scenario, the moot proposition states instances in para 10 of the
proposition “father confirmed that Rahul was taking treatment for his mental state, but
also mentioned about the behavior therapy Harish was taking.” Similarly, in para 9 “Also,
a lot of medicines were recovered from Harish’s bedside drawer. These also included
stronger versions of the same medicines prescribed to Rahul.” the medication prescribed
to Rahul happens to be for the medical disorder of Bipolarity. The straight forward

18 Bhagwan Singh and Ors. v. State of Madhya Pradesh, 2002 (2) Sup 567.

Interpretation to this could be that harry to suffered from the form the above-mentioned
disorder. In another statement from the proposition where Ramesh said in para 13 “As per
him Harish is always under the influence of drugs.” in para 6 it is stated “After
consultations and diagnosis, the doctor felt that John had Bi-Polar disorder. They were
advised to keep a strict vigil on him, especially during the late hours of the day. He has
also advised some mild medication.” in para 12 it is mentioned, “In Court, Harish said
that he remembered nothing from that night as he claimed that he had taken some
medicines and slept after watching television.”

[¶9] From the aforementioned statements it can be interpreted as harry suffering from an
illness and with the analysis of the statements “Also, a lot of medicines were recovered
from Harish’s bedside drawer. These also included stronger versions of the same
medicines prescribed to Rahul” and “After consultations and diagnosis, the doctor felt
that John had Bipolar disorder. They were advised to keep a strict vigil on him,
especially during the late hours of the day. He was also advised some mild medication.”
interpretation can be drawn from the following that Harry most likely was suffering from
bipolar disorder.
[¶10] As per ICD-1019 bipolarity can be defined as: Bipolar disorder is a serious mental
illness. People who have it go through unusual mood changes. They go from very happy,
"up," and active to very sad and hopeless, "down," and inactive, and then back again.
They often have normal moods in between. The up feeling is called mania. The down
feeling is depression. The causes of bipolar disorder aren't always clear. It runs in
families. Abnormal brain structure and function may also play a role. Bipolar disorder
often starts in a person's late teen or early adult years. But children and adults can have
bipolar disorder too. The illness usually lasts a lifetime. if you think you may have it, tell
your healthcare provider. A medical checkup can rule out other illnesses that might cause
your mood changes. if not treated, bipolar disorder can lead to damaged relationships,
poor job or school performance, and even suicide. However, there are effective treatments
to control symptoms: medicine and talk therapy. A combination usually works best.

[¶11] In the case of Kamala Bhuniya Vs State of West Bengal20 the judge stated –
However failure on part of prosecution to discharge its initial onus about presence of mens
rea in appellant at time of commission of offence — Held appellant was insane and
incapable of appreciating consequence of her act at time of commission of offence —
Appellant held

19 ICD-10.
20 Kamala Bhuniya Vs State of West Bengal 2006 (3) Crimes 92.
entitled to benefit of Section 84, IPC — Conviction of appellant could not be sustained.
(Paras 16 to 21) In Devidas Loka Rathod Vs. State of Maharashtra 21 has relied on the
following case laws to come to the judgment, “We are therefore of the considered opinion,
that the appellant has been able to create sufficient doubt in our mind that he is entitled to
the benefit of the exception under section 84 I.P.C. because of the preponderance of his
medical condition at the time of occurrence, as revealed from the materials and evidence
on record. The prosecution cannot be said to have established its case beyond all
reasonable doubt. The appellant is therefore entitled to the benefit of the doubt and
consequent acquittal. The appeal is allowed. He is directed to be released from custody
unless wanted in any other case.”
[¶12] Dahyabhai Chhaganbhai Thakkar v. State of Gujarat 22 "(1) The prosecution
must prove beyond reasonable doubt that the accused had committed the offense with the
requisite mens rea, and the burden of proving that always rests on the prosecution from
the beginning to the end of the trial.(2) There is a rebuttable presumption that the accused
was not insane, when he committed the crime, in the sense laid down by Section 84 of the
Indian Penal Code: the accused may rebut it by placing before the court all the relevant
evidence oral, documentary or circumstantial, but the burden of proof upon him is no
higher than that rests upon a party to civil proceedings.(3) Even if the accused was not
able to establish conclusively that he was insane at the time he committed the offense, the
evidence placed before the court by the accused or by the prosecution may raise a
reasonable doubt in the mind of the court as regards one or more of the ingredients of the
offense, including mens rea of the accused and in that case the court, would be entitled to
acquit the accused on the ground that the general burden of proof resting on the
prosecution was not discharged."
[¶13] Similarly it was observed in Surendra Mishra v. State of Jharkhand,23 after
which the onus shall shift to the prosecution to establish the inapplicability of the
exception. But it is not every and any plea of unsoundness of mind that will suffice. The
standard of test to be applied shall be of legal insanity and not medical insanity, as
observed in State of Rajasthanv. Shera Ram24, as follows :"19. ........Once, a person is
found to be suffering from mental disorder or mental deficiency, which takes within its
ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by
way of appropriate documentary and oral

20 Devidas Loka Rathod Vs. State of Maharashtra, (2018) AIR(SC) 3093.

21 Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361.
22 Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495.
23 State of Rajasthan v. Shera Ram, (2012) 1 SCC 602.
evidence, the person concerned would be entitled to seek resort to the general
 exceptions from criminal liability."
[¶14] It was observed in Ratan Lal v. State of Madhya Pradesh,25, as follows: "2. It is
now well-settled that the crucial point of time at which unsoundness of mind should be
established is the time when the crime is actually committed and the burden of proving
this tie on the accused”. In D.G. Thakker v. State of Gujarat26, it was laid down that
"there is a rebuttable presumption that the accused was not insane, when he committed the
crime, in the sense laid down by Section 84 of the Indian Penal Code, the accused may
rebut it by placing before the Court all the relevant evidence - oral, documentary or
circumstantial, but the burden of proof upon him is no higher than that which rests upon a
party to civil proceedings".

[¶15] It was held that If from the materials placed on record, a reasonable doubt is created
in the mind of the Court with regard to the mental condition of the accused at the time of
occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent
acquittal, as observed in Vijayee Singh v. State of U.P.27.

[¶16] Section 84 of the IPC carves out an exception, that an act will not be an offense if
done by a person, who at the time of doing the same, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or what he is doing is either wrong or contrary
to law. But this onus on the accused, under Section 105 of the Evidence Act is not as
stringent as on the prosecution to be established beyond all reasonable doubts. The
accused has only to establish his defense on a preponderance of probability, as observed
in Surendra Mishra v. State of Jharkhand28, after which the onus shall shift on the
prosecution to establish the inapplicability of the exception. But it is not every and any
plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of
legal insanity and not medical insanity, as observed in State of Rajasthan v. Shera
Ram29: Once, a person is found to be suffering from mental disorder or mental deficiency,
which takes within its ambit hallucinations, dementia, loss of memory and self-control, at
all relevant times by way of appropriate documentary and oral evidence, the person
concerned would be entitled to seek resort to the general exceptions from criminal
liability.

24Ratan Lal v. State of Madhya Pradesh, (1970) 3 SCC 533.

25D.G. Thakker v. State of Gujarat, (1964) AIR(SC) 1563.
26Vijayee Singh v. State of U.P. (1990), 3 SCC 190.
27Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495.
28State of Rajasthan v. Shera Ram (2012), 1 SCC 602.
[¶17] In the case of Sawai Singh, son of Gulab Singh Vs The State of Rajasthan 30 12 “Once,
a person is found to be suffering from mental disorder or mental deficiency, which takes within
its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way
of appropriate documentary and oral evidence, the person concerned would be entitled to seek
resort to the general exceptions from criminal liability."
[¶18] The defense evidence in the form of the statements of the concerned doctors, which we
have discussed above, duly establishes that the accused was suffering from unsoundness of mind
when the offence was committed. Therefore, and in the circumstances noticed above, we are of
the firm opinion that the accused is entitled to the defense of plea of insanity provided by
Section 84 of IPC. In view of the above discussion, we are of the firm opinion that the learned
trial court committed grave error in facts as well as in law while convicting the accused
appellant by not adopting the procedure provided under Section 329 CrPC and not extending
him the benefit of defense of insanity by virtue of Section 84 IPC.

29 Sawai Singh, son of Gulab Singh Vs The State of Rajasthan, 2020 0 Supreme(Raj) 12.
III. Whether the trial court has made any error in appreciating the evidences present
before it?

[¶19] It is most respectfully submitted before this honorable High Court that the trial court have
made a pertinent error in appreciating the evidences present before it. Firstly, there were no
direct evidences in the present case. All the circumstantial evidences do not form a clear chain of
events which proves the liability of Harish beyond a reasonable doubt. The murder weapon
which was recovered from the garage was not sent for fingerprinting, so it cannot be relied upon.
The two NARCO tests done on Harish were also contradictory to each other, so they were left
with no evidentiary value. No motive has been proved by prosecution.
3.1 EVIDENTARY VALUE OF MURDER WEAPON
[¶20] It is humbly submitted before this hon’ble court that the police recovered a blood- stained
knife hidden in plastic bag from the garage during investigation.31 The same knife was not sent
for forensic examination. First of all, it is not known that the blood present on the knife was of
the victims or not. It is also not known that it was the same knife which was used for the
murders or not. Also, no fingerprints were taken from the knife which could have been used to
determine the murderer. Even if it is presumed that it is the same knife which was used for
murder, still it cannot be determined that who used it. There was no reason for the trial court to
presume that Harry was the person who used the knife and hid it in the garage. So, in the
absence of any forensic report, the recovered knife cannot be taken as a relevant piece of
evidence.
[¶21] It is humbly submitted that in a case where death is due to injuries or wounds caused by a
lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was
likely or at least possible for the injuries to have been caused with the weapon with which
and in the manner in which they are alleged to have been caused. 32 In Ishwar Singh v. State of
U.P.33 ,their Lordship of the Supreme Court observed that: "It is the duty of the prosecution, and
no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the
medical witness and his opinion invited as to whether all or any of the injuries on the victim
could be caused with that weapon. Failure to do so may sometimes, cause aberration in the
course of justice."34

21 Para 12 of Moot proposition .

22 Mohinder Singh v. State, AIR 1953 SC 415; 1953 Cr.L.J. 1761.
23 Ishwar Singh v. State of U.P., AIR 1976 SC 2423. See also Kartarey v. State of UP, AIR 1976 SC 76:
1976 Cr.L.J. 13.
24 Kartarey v. State of UP, AIR 1976 SC 76: 1976 Cr.L.J. 13.
[¶22] In the case of Mohinder Singh v. State35, it was found doubtful whether the injuries
which were attributed to the accused were caused by a gun or a rifle. It seemed more likely that
they were caused by a rifle than a gun and yet the case of the prosecution was that the accused
was armed with a gun and in his examination, it was definitely put to him that he was armed
with the gun. The Supreme Court held that it was only by the evidence of a duly qualified expert
that it could have been ascertained whether the injuries attributed to the accused were caused by
a gun or a rifle and such evidence alone could settle the controversy as to whether they could
possibly have been caused by a fire arm used at such a close range as was suggested in the
evidence. The principles laid down by the Hon'ble Supreme Court that the weapon of offence
recovered in a case should be shown to an expert and he should be asked to say whether the
injuries found on the deceased could be caused with that weapon.

[¶23] It is humbly submitted that the murder weapon is important only when it is found that the
blood found on the weapon is same as of the victim. But in the present case, no medical
evidence was produced on this point. In Kansa Behera. v. State of Orissa36 where report of the
serologist indicated that the shirt and dhoti of the accused were stained with human blood, but
did not mention about the group of the blood, the Supreme Court held that in the absence of
group of blood in the serologist report, it could not positively be connected with the deceased.
The report and the evidence of the investigating officer did not also show the dimensions of the
stains of blood. Few small blood-stains on the clothes of a person may even be of his own
blood especially if it is a villager putting on these clothes and living in villages. The evidence
about the blood group is only conclusive to connect the blood-stains with the deceased. The
court refused to place reliance upon these circumstances.
[¶24] Similarly, in the case of Surinder Singh v. State of Punjab37, which is a similar situation
like the present case, it was held that when blood-stained weapon of assault is recovered from
the possession of the accused but it is not shown that the blood-stains on the weapon were of the
same group as the blood of the deceased. The recovery of blood-stained weapon of assault from
the possession of the accused is of no help to the prosecution. The accused was acquitted of the
charge of murder. In the present case, blood-stained knife found in the garage is of no
evidentiary value because of the above-mentioned reasons.

3.2 EVIDENTIARY VALUE OF NARCO TESTS

25 Mohinder Singh v. State, AIR 1953 SC 415; 1953 Cr.L.J. 1761.
26 Kansa Behera. v. State of Orissa, AIR 1987 SC 1507.
27 Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649: 1989 ACC 382 :(1989) Supp (2) SCC 21.
[¶25] It is humbly submitted that with the written consent of Harish, two NARCO tests
were conducted on him and both the tests were diametrically opposite to each other. 38 First
of all, the reason for which two tests were conducted is unknown. Secondly, no test was
conducted on Ramesh to ascertain his guilt, which shows the lacuna on the part of police
in investigation. Thirdly, it is also not known that what exactly was said in the tests, the
only thing mentioned is that they were diametrically opposite.

[¶26] It is humbly submitted that in case of Santokben Sharmanbhai Jadeja v. State of

Gujarat39, the Court while upholding the order for conducting a Narco Analysis on the
accused Santokben Sharmanbhai Jadeja, observed that "when after exhausting all the
possible alternatives to find out the truth and nab the criminal/accused and when it is
found by the prosecuting agency that there is no further headway in the investigation and
they are absolutely in dark, there is a necessity of such a test. On the basis of revelations
and/or the statement recorded while conducting/performing the Narco Analysis Test,
prosecuting agency may have some clues which would further help and/or assist the
Investigating Agency to further investigate the crime and at this stage, there will not be
any bar of Article 20(3) of the Constitution of India and merely conducting/performing of
a Narco Analysis Test on the accused, the protection guaranteed under Article 20(3) of the
Constitution of India is not violated. As stated above, only and only at the stage when the
prosecuting agency is likely to use such statement as evidence and if it is inculpating and
incriminating the person making it, it will attract the bar of Article 20(3)."

[¶27] It is humbly submitted before this hon’ble court that as per said case the pre
requisite for NARCO test is when there is no further headway for investigation then it
can be done. But in the present case, no such instance was seen because sufficient leads
were existing for the police to do their investigation. It raises questions on the conduct of
police that why such tests were done when there was no requirement. It is also important
to understand that the purpose is not quintessentially to extract self-incriminating evidence
from the accused but to simply add more value to the evidence already gathered by the
police by putting across to the accused basic questions which he is almost definitely to
give a true answer. But nothing as such has been seen in the present case and no
corroboration can be seen from such tests.

20 Para 10 of Moot proposition.

21 Santokben Sharmanbhai Jadeja v. State of Gujarat, (2008) CriLJ 68.
[¶28] While considering the statement of accused given under Narco test, it is important
to consider that the statement are given by the concerned person under a semi-conscious
state, so they will not be admissible. The roaming gospel of criminal jurisprudence is that
the person making the statement must be in a fit state of mind. Article 20(3) of the
Constitution of India intervening the doctrine self-incrimination would also come on the
way and will hold such statements inadmissible in evidence. The underlying principle is
that no person can be a witness against himself.

[¶29] It is humbly submitted that though the statement given under Narco is considered as
of corroborative nature but because of the contradiction present between two tests, they
cannot be even used for corroboration. Both the tests state completely two different
points. It is a general principal of law that if two views can be considered from a evidence
then the one which is in the favour of accused should be taken into consideration. In this
regard para-19 of the judgment of the Apex Court passed in the case of Digamber
Vaishnav & another vs. State of Chhattisgarh40 is quoted hereinbelow: "It is also well
settled principle that in criminal cases, if two views are possible on evidence adduced in
the case, one binding to the guilt of the accused and the other is to his innocence, the view
which is favorable to the accused, should be adopted. This principle has a special
relevance in cases where the guilt of the accused is sought to be established by
circumstantial evidence."

3.3 TEST FOR CIRCUMSTANTIAL EVIDENCE

[¶30] It is humbly submitted that there is no direct evidence in the present case. There are
only few circumstantial evidences and even these evidences do not pass the test establish
by the hon’ble courts in different decisions. The test is being followed by all the courts in
country in the case of circumstantial evidences. In this regard, a reference can be made to
a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. 41, wherein it has
been observed thus: “In a case based on circumstantial evidence, the settled law is that the
circumstances from which the conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature. Moreover, all the circumstances should
be complete 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 ”.

28 Digamber Vaishnav & another vs. State of Chhattisgarh, (2019) 4 SCC 522.
29 C. Chenga Reddy and Ors. v. State of A.P., (1996) 10 SCC 193.
[¶31] It is humbly submitted that a reference may be made to a later decision in Sharad
Birdhichand Sarda v. State of Maharashtra,42 therein, while dealing with
circumstantial evidence, it has been held that onus was on the prosecution to prove that
the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false
defence or plea. The conditions precedent in the words of this Court, before conviction
could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be
fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may
be’ established;
(2) the facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and must
show that in all human probability the act must have been done by the accused.

[¶32] It is humbly submitted that the five-point test given in the above case is not being
fulfilled by the prosecution. The circumstantial evidence present are not fully established
and not of conclusive nature. There is still other hypothesis present like Ramu only could
have murdered for money, John could have killed his own mother since he also had a
motive and many more. There is no chain of evidence which only and only suggests that
Harry was the person who committed the murders.

[¶33] In State of U.P. v. Ashok Kumar Srivastava43, it was pointed out that great care
must be taken in evaluating circumstantial evidence and if the evidence relied on is
reasonably capable of two inferences, the one in favour of the accused must be accepted.
It was also pointed out that the circumstances relied upon must be found to have been
fully established and the cumulative effect of all the facts so established must be
consistent only with the hypothesis of guilt.

3.3.1 MOTIVE: NOT PRESENT

30 Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622).
31 State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104).
[¶34] It is humbly submitted that in the criminal trials based on circumstantial evidence
only, the Supreme Court has ruled that prosecution should prove motive of the accused if
its case is based on circumstantial evidence. But in the present case, Harish had no motive
to kill his brother or his mother. They were a happy family and without a reason or motive
there is no cause that Harish will kill his brother and mother. A reliance can be made on
the decision of the Hon'ble Supreme Court in case of Nagaraj vs. State represented by
Inspector of Police44, wherein, it has been held as under: "13. The conviction is
predicated on circumstantial evidence alone. Fingerprints have not been lifted from the
scene, the murder weapon has not been recovered, and any credible motive is absent. It
cannot even be contended that the Accused was the last person to be seen with the
Deceased since several persons including the Manager, PW1, and the guests in the
adjoining rooms could have accessed the room where the Deceased was eventually found.
While circumstantial evidence is (6 of 8) [CRLA-53/2017] sufficient to return a
conviction, this is possible if it contains all the links that connect the Accused to the
incident, and the inconsistencies are extremely trivial in character. Furthermore, motive
assumes great significance where a conviction is sought to be predicated on circumstantial
evidence alone, and its absence can tilt the scales in favour of the Accused where all links
are not avowedly present. We think that the High Court erred in concluding that the
complicity of the Accused in the murder of the Deceased had been proved beyond
reasonable doubt."

[¶35] It is humbly submitted that the law relating to the role of motive in cases of
circumstantial evidence is very clear as laid down in a catena of decisions of the Hon’ble
Supreme Court and this court as well. The Apex Court in the case of Surinder Pal Jain
vs. Delhi Administration45, reported in, observed as under: “12. There is no motive
established in this case by the prosecution for the appellant to commit murder of his wife
and the evidence of Tara Chand father of the deceased as well as the sister of the deceased
and the tenants living in the same house disclosed that the relations between the husband
and wife were cordial. In a case based on circumstantial evidence, motive assumes
pertinent significance as existence of the motive is an enlightening factor in a process of
presumptive reasoning in such a case. The absence of motive, however, puts the court on
its guard to scrutinise the circumstances more carefully to ensure that suspicion and
conjecture do not take place of legal proof.”

20 Nagaraj vs. State represented by Inspector of Police, (2015) 4 SCC 739.

 21 Surinder Pal Jain vs. Delhi Administration, 1993 SCR (2) 226.

[¶36] A similar view was upheld in a decision of the Hon’ble Supreme Court in
Pannayar vs. State of Tamil Nadu by Inspector of Police 46, wherein the Apex Court
held as under: “13. It has also come in evidence of Subbiah that the accused was a known
person to his family members. One wonders as to why would the accused whom the
deceased knew would venture to rob her. Motive of robbery does not seem to be present
in the present case. The absence of motive in a case which depended on circumstantial
evidence is more favourable to the defence.”

[¶37] Similarly, in Gosu Jairami Reddy & Another vs. State of Andhra Pradesh 47, the
Hon’ble Supreme Court held as under: “13. It is settled by a series of decisions of this
Court that in cases based on eye witness account of the incident proof or absence of a
motive is not of any significant consequence. If a motive is proved it may supports the
prosecution version. But existence or otherwise of a motive plays a significant role in
cases based on circumstantial evidence.”

[¶38] In another case titled as Munish Mubar vs. State of Haryana48 the Hon’ble
Supreme Court held as under: “20. In a case of circumstantial evidence, motive assumes
great significance and importance, for the reason that the absence of motive would put the
court on its guard and cause it to scrutinize each piece of evidence very closely in order to
ensure that suspicion, emotion or conjecture do not take the place of proof.”

3.3.2 NO ABSCONDING ON THE PART OF HARISH

[¶39] It is humbly submitted that the conduct of person whether previous or subsequent is also
relevant as per Section 8 of Indian evidence act, 1872. In the present case, Harish did not try to
run away from the police or their investigation. While on the contrary, Ramesh was absconding
from the house and was caught later on by the police. Harry came before the police and even get
to know by the murders also in front of police only. If he would have committed the murder, he
would also have run away from the house like Ramesh because he also had the opportunity of
running away. But his subsequent conduct of not running from the house is relevant as evidence
and suggests his innocence.

32 Pannayar vs. State of Tamil Nadu by Inspector of Police, (2009) 9 SCC 152.
33 Gosu Jairami Reddy & Another vs. State of Andhra Pradesh, (Criminal Appeal No. 1321 of 2006
decided on 26.07.2011).
34 Munish Mubar vs. State of Haryana, (Crl. Appeal No. 294/2010).
PRAYER

In the light of issues raised, arguments advanced and authorities cited in the present
appeal, the Hon’ble Court may graciously be pleased to:
1. Accept the appeal.
2. Reverse the judgement of the Ld. Court of trial and acquit the accused.
And/or
Pass any other order that it deems fit in the interest of Justice, Equity and Good
conscience. And for this, the Appellant as in duty bound, shall humbly pray.

All of which most humbly and respectfully submitted

Counsel on behalf of Appellants

DATE:
PLACE: