CHECKMATE 2023

13th AIL National Moot Court Competition- 2023

Army Institute of Law, Mohali

 AIL MOOT MEMORIAL 2023

ISSUE A

WHETHER THE ACCUSED ARE LIABLE FOR THE OFFENCE?

It is humbly submitted to the Hon’ble Court that the accused are liable for the offence under
Section 302, 120B and 34 of IPC. It can be proved through the following arguments that all
the three accused are to be charged for murder and criminal conspiracy against the deceased,
Jatindas and his deceased wife, Rani.

Evidence often proves to be the basis of conviction or acquittal of the accused. In the absence
of direct evidence, it is the circumstantial evidence that decides the fate of the accused. The
commission of the offence can be proved through the chain of circumstantial evidences.

1. 1 Circumstantial evidences of death by poison

The Hon’ble Court in the case of Hanumat v. State of MP 1 laid down certain
conditions that need to be fully established for convicting the accused which were
also affirmed in the case of Sharad Birdi Chand Sharda v. State of Maharashtra 2,
which were-
 The circumstances from which the guilt is to be drawn must or should be fully
established.
 The facts established should only be consistent with the guilt of the accused &
there should not be any explainable hypothesis other than the guilt of the
accused.
 The circumstances should have a conclusive nature.
 Circumstance should exclude every other hypothesis.
 The chain of evidence must be so complete that it does not leave any ground
in favour of the innocence of the accused.

Establishing the circumstances- In the present case, Jatindas was not happy with his
elder sons Dinesh &Ninesh. Their relationship was strained and they would often had
arguments regarding the business or on petty issues. Jatindas would complain about
them wasting hard earned money. Sometimes, the fights would turn ugly. Moreover,
the accused Dinesh &Ninesh were also not happy as they felt that Jatindas always

1
AIR 1952SC 343, 1953CriLJ 129, 1952 1 SCR 1091
2
1984 AIR
 AIL MOOT MEMORIAL 2023

favoured Mangesh. Jatindas would often say that he would disown them & will leave
everything to Mangesh.

These circumstances clearly establish that the accused had a motive to murder the
deceased. PW4 in his testimony has also disclosed the same facts that he heard from
his father and grandfather, how deceased was unhappy with his two sons and how he
felt that they were upto something illegal.

Consistency- Getting the blood tests of Jatindas done from a local path lab, which was
owned by a common college friend of the accused & then not showing the same to the
doctor establishes a suspicion on the accused.

During an investigation of the police, the blood test reports of Jatindas & Rani were
found lying in corner of the store house. Both the blood test reports as submitted
before the Hon’ble Court confirm the presence of a highly toxic element Thallium in
them. The counsel would bring the attention of the Court to the fact that Thallium is a
toxic poison that affects the nervous system, lungs, heart, liver& kidney if eaten or
drunk even for short periods of time. Temporary hearing loss, vomiting &diarrhoea
can also occur as symptoms. Even a low dose can result in the death of a person
exposed to it.

However, Thallium poisoning can be treated by antidote or blood purification treatments but
as the reports were not shown on time & were hidden are consistent with the intention of the
accused for Jatindas’s death.

The facts show that Sartaj, the house help prepared hookah for Jatindas every day. And when
the hookah was recovered by the police and sent for forensic examination, it showed traces of
thallium present in it. It infers that the poison was given to the deceased through the same at
regular intervals that led to the deterioration of his health and ultimately death. The object i.e.
the bottle of thallium was also recovered by police from the outhouse of Sharma’s.

All these circumstances fulfil the conditions laid down in the above case and lead beyond
reasonable doubt to the fact that the accused have committed the offence.
 AIL MOOT MEMORIAL 2023

In a landmark case of Sharad Birdhichand Sarda v. State of Maharashtra, the Hon’ble Court
stated four important circumstances which alone can justify a conviction in case of murder by
poisoning or suicide:

 The clear motive of the accused is to be administering the poison.

 The deceased died because of the same poison which was administered.
 The accused possessed the poison.
 The accused had an opportunity to administer the poison.

From the above arguments, it can be clearly inferred that the above four circumstances are
fulfilled. The accused have a clear motive of committing murder, the deaceased died due to
the thallium that was administered, the bottle of the same was discovered from their
household and also they had undoubtedly many opportunities to administer the poison.
Hence, these facts give reasonable ground for conviction.

1. 2 The Doctrine of Res ipsa loquitor

The doctrine of res ipsa loquitor under Section 106 of the Indian Evidence Act, 1872
states that burden of proving fact especially within knowledge of a person is upon the
person stating the fact.

Res ipsa loquitor is a maxim, the application of which shifts the burden of proof on the
accused. Generally, in a case it is the prosecutor who has to provide evidence to prove the
accused’s guilt. There is, however a change when the maxim is used. The burden of proof
shifts to the accused. There is a presumption of mens rea on part of the accused and it
isupto him to prove his innocence and that it was not his act which caused the offence.
The accused leads the evidence.

The accused were not able to give any reasonable explanations as to why the reports, in
which presence of Thallium was found, were concealed from the Doctor. Only they knew
the results of such reports and they did not disclose the results to anybody else. Here, the
things are speaking for themselves. The result of the report is a fact especially within the
knowledge of the accused. Hence, section 106 is attracted here and the burden to prove
why they deliberately concealed those reports from others lies on the accused. The same
thing happened after their mother’s death. It was only during the investigation that the
police recovered both the reports lying in a corner of the store house. Both the reports
have been tendered in documentary evidence. The reports revealed presence of thallium
 AIL MOOT MEMORIAL 2023

in the blood of both the deceased. It means the modus operandi to commit both the
murders was same. The deliberate concealment of the reports by the accused indicates
culpable intention on the part of both the accused.

1. 3 Criminal Conspiracy

Criminal Conspiracy in terms of section 120B of the code is an independent offence. Sec.
120A of IPC lays following ingredients of offence of criminal conspiracy

1. agreement between the persons who are alleged to conspire

2. the agreement should be for-

 For doing an illegal act

 For doing by illegal means an act which may not itself be illegal

That existence of an agreement is a sin qua non for there to be a criminal conspiracy.
Howver, this agreement need not be express.

In Mohammad Usman Mohammad Hussain Maniyar & ors. V. State of

Maharashtra3, It was observed that for an offence u/s 120 B the prosecution need not
necessarily prove that the perpetrators expressly agree to do &/or cause to be done the
illegal act, the agreement may be proved by necessary implications.

In the present case, the bank statement of one of the accused, sartaj, as submitted before
the Hon’bl Court clearly indicate that after the death/ murder of the deceased, regular
enteries of money were made into his account from different names, all belonging to the
Sharma household as well as Company accounts.

Afthe death of the deceased, Sartaj was without any reasonable cause, sent back to his
native village. Also, the entries were made therein, after he left that job. This implicates
the presence of Criminal conspiracy among the accused.

The Appex Court in Yogesh Joshi v. State of Maharashtra 4 observed as:

3
AIR (1981) 2 SCC 443
4
2008 Cr LJ 3872
 AIL MOOT MEMORIAL 2023

it is manifest that the meeting of minds of two or more persons for doing an illegal act or
an act by illegal means is sine quo non of the Criminal conspiracy but it may not be
possible to prove the agreement between them by direct proof. Nevertheless, Existence of
the conspiracy and its objective can be inferred from the surrounding circumstances and
the conduct of the accused.

- In the case in hand, both elder Sons of deceased conspired to murder the deceased to
which Sartaj was made a part. As he brought bottle of thallium which was given to
them by him. The same poison was administered to the deceased slowly in small
doses through hookah, prepared by Sartaj.

1. 4 Discovery of the objects of murder

1.4.1 Discovery of Bottle

The statement by Sartaj given to the police can be administered under section 27 of
IEA, 1872 on the basis of which the police recovered the bottle of Thallium from the
abandoned house of Jatindas. Therefore, so much of the part of the confession given
by Sartaj as directly relate to the recovery can be admitted in evidence and reliance
can be made upon it. Agnoo

pul

So, the police have discovered knowledge on the part of sartaj that he knew that the
bottle was lying at such place. As a natural corollary, it can be presumed that either
Sartaj himself has placed the bottle containing thallium in the abandoned out house or
he saw somebody placing it there. The onus of providing the explanation to such
knowledge lies upon Sartaj. In the defence evidence nothing has been produced by the
accused Sartaj explaining how he got the knowledge that the bottle containing
thallium was lying there. In such an event it can be presumed that Sartaj himself had
placed the bottle there. Therefore, Sartaj was an active co conspirator with other two
accused in the conspiracy to murder the deceased.

This contention is supported by the illustration (a) attached to sec.114 which provides
that the court may presume a man to be guilty of theft if he is found with the stolen
 AIL MOOT MEMORIAL 2023

property soon after the theft unless he can account for his possession. Same
illustration can be applied here as As, he is unable to give any sufficient proof to
exonerate him, it can therefore be considered that he gave the poison to the deceased.

The same was also held in the cases of Gajanan Dashrath Kharate v. State of
Maharashatra, Nica Ram v. State of HP, Ganesh Lal v. State of Maharashtra & State of
T.N. v. Rajendran.

Udai Bhan Rai vs State of UP and ors. 5

The discovery of the fact includes the object found, the place from which it is produced
and the knowledge and the accused as to its existence.

Here in this case, object was found i.e. the bottle of thallium; the place was cupboard in
an abandoned outhouse of the Jatindas House and the knowledge is prima facie seen in
the form of confession.

1.4.2 Discovery of Blood Reports

The police discovered blood reports of both the deceased from corner of the store
house. Both of which confirmed presence of Thallium in them.

1.4.3. Discovery of hookah

The hookah which was used by deceased was recovered from the store house. The
forensic expert’s report traces of chemical compound, thallium was found in it.

Murder of deceased’s wife:

As in the case in hand, during investigation, the fact came forward that the wife of Jatindas
had died a year after his demise. Her records were perused and it was discovered that there
was a sharp similarity in the symptoms between the death of Jatindas and his wife. Both the
blood test reports as submitted befor the court confirmed the presence of Thallium in them.
Here, the rule of similar fact evidence comes into play. Presence of thallium, a highly toxic

5
AIR 1994 SC 1603
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compound in the blood of both the deceased can be no coincidence. Section 15 of IEA lays
down that in order to prove that an act was intentional and not accidental, the, fact, that such
act former part of series of similar occurrences, in each of which the person doing the act in
question was concerned is relevant.

Mohammad v. King6, in this case the accused was tried for murder of women named, Ayesha
by poisoning her. Evidence was given to show that the accused had previously murdered
another woman under the similar circumstance. This evidence was held to be inadmissible as
there was no direct evidence that the accused had administered the poison. If the accused was
proved to have administered poison to Ayesha in circumstances consistent with accident, the
proof that he had previously administered poison to any other in similar circumstances might
have been admissible.

In the present case, the cause of death of both the deceased is with the same poison, Thallium,
as confirmed in the blood test reports. Considering the fact that the reason of death was same
for both, the only conclusion that can be drawn is that the death cannot be accidental but is
intentional act of the persons. Therefore, the only inferences drawn are that the accused who
are responsible for death of jatindas are also for that of his wife, Rani.

6
AIR1949 PC 161
 AIL MOOT MEMORIAL 2023

ISSUE B

How reliable are the recoveries made as a result of the statements made by Bhavesh?
Would these be admissible?

1. Whether the blood test reports are admissible and reliable?

The blood test reports are admissible as well as reliable. The police discovered blood reports
of both the deceased from corner of the store house. Both of which confirmed presence of
Thallium in them. Both the accused got blood test reports done of the accused from the local
path lab, which was owned by their college friend. So, here we get to know that reports are
relevant as they confirmed the death by poison of deceased and his wife. Thereafter, the
accused dumped those reports in the corner of house which were they discovered, which,
shows their subtleness as they didn’t want themselves to be interrogated. They are admissible
as they are independently found by the police.
Bombay High Court, in a judgment of Bima Tima Dhotre v. Pioneer Chemical Co.7 ,observed
that it is not necessary to call the writer of the document in order to prove the document as
documentary evidence would become meaningless if the writer has to be called in every case.
Hence, it can be said that truth of the contents of a document must be proved either by the
author or by ‘the person who knows and understands the contents’, i.e. persons having
personal knowledge of a document.

1. Whether the blood test reports are admissible and reliable?

No, the blood test reports are not admissible and reliable as their genuineness has not been
proved.

According to sec. 67 of IEA, if a document is alleged to be signed or to have been written wholly
or in part by any person, the signature or the handwriting of so much of the document as is
alleged to be in that person’s handwriting must be proved to be in his handwriting. Therefore,
the handwriting has not been proved as it was prescribed by some MBBS doctor. It was also
provided by the doctor that he would change the medicines only after the blood test reports are
shown to him. Section 67 prescribes that truthfulness of the contents has to be proved by the
personal knowledge. In other words, a witness should be the author of the document. Here, The
doctor who has provided such reports has not been called as witness in the Court to attest the
same.

7
(1968 (70) Bom LR 683)
AIL MOOT MEMORIAL 2023
 AIL MOOT MEMORIAL 2023

ISSUE- 1

WHETHER THE ACCUSED ARE LIABLE FOR THE OFFENCE?

1.1 Whether the genuineness of blood reports have been or not?

There is a legal requirement to prove the genuineness of document. Here, the genuineness of
blood reports presented by the learnt counsel has not been proved. For a report to be
admissible it needs to be proved beyond doubt that such reports were genuine and not biased.
Mere filling of document in a court is not enough to make the document a part of the record.
There is a preliminary matter to be attended to before the contents of a document may be read
as a evidence. Authentication and proof of its genuineness is very necessary.

As per Section 67 of IEA, when a document filed before a Court, is alleged to have been
signed or written wholly or partly by any person it must be proved that it was signed or
written by that person whose signature or writing it purports to be. Also, it mandates that the
signature and handwriting of a person on a written document can be proved, only by
examining the person concerned.

As the case in hand, the blood test reports of the deceased were not attested. So, it cannot be
assured that there has been no tempering in them. The doctor who has provided such reports
has not been called as witness in the Court to attest the same. Therefore, as the provisions of
IEA, such report cannot consider being admissible and it cannot only be the sole basis of
conviction.

Inquest report would be inadmissible in evidence in the case where only exhibit is marked
and signature of witness on inquest report in substantiated, as held in the case of Chandan
Ramesh Chandra v. State of MP8.

The reports may have been prepared by Mangesh just to implicate the accused. As earlier
Mangesh had an expectation that he would get all the property from his father. So, after the
death of his father as there was no will, the property was to be divided among all the three
brothers. This made him upset which is why he made a deliberate plan through which the
other two brothers would be convicted for murder and ultimately h would be the sole
inheritor of the ancestral property.

8
2010 CriLJ 73(MP) (DB)
 AIL MOOT MEMORIAL 2023

1.2 Whether the version of informant can be trusted or not?

The basis on which the informant, Bhavesh gave all the information to police is completely
unscientific. Acc. To sec. 114 of IEA, the court may only presume the existence of any fact
which it thinks is likely to have happened, regard being had to the common coarse of natural
events and human conduct and not supernatural. In these circumstances, the story told by
Bhavesh of his rebirth and his previous life as Jatindas alsoby whom and how he was
murdered cannot be believed and is completely fictious.

As per Article 51 of the Indian Constitution, it is expected as a duty from every individual to
develop scientific temper, i.e., logical and rational thinking. Keeping in mind the same, the
story of rebirth narrated by Bhavesh in completely illogical. Convicting a person simply on
the basis of some fictional story of reincarnation is so absurd.

A logical explanation that can only be formed is that the child has been brainwashed. At such
a tender age, a child cannot understand much as to what is right or wrong and can easily be
manipulated. He has been taught all about the facts he gave the statements of about Jatindas
and he repeated whatever was told.

Further the contention, herein, made is that Jagdish youngest son Mangesh was hand in
gloves with Patels. Being the member of the family and incharge of business, it is natural for
him to know every detail about Jagdish’s relation with his other two sons and all the other
details that were mentioned by Bhavesh. Mangesh has provided Bhavesh with all this
information that he deposed in the Court. He had a vivid motive and thereafter made a subtle
plan to trap his other two brothers in the murder of their father and mother. So that he could
get all the property simultaneously.

Hence, waiting for around 11-12 years to claim rebirth is clearly a well planned story.

Competency- Although the child is competent to be a witness in the court of law but is not
reliable. The reliability of the statement of child witness can only be on the basis of voir dire
test. This test is a precursor to determining a child’s maturity and ability to deal with the full
potential of a witness to testify before the judge and therefore the judge may examine the
child by asking some irrelevant questions. This test is done because a child can easily be
made a puppet in the hands of elders and can also be easily manipulated.
 AIL MOOT MEMORIAL 2023

As in this case no such test has been taken, so such statements cannot be relied upon.
Moreover the basis of the statement on which he vbecame the witness is illogical.

1.3 Whether the version of PW4 is admissible or not?

The verison of PW4 is not admissible. The statement made by him is a hearsay evidence. It is
that kind of evidence which does not derive its value solely from the credit to be given to the
witness himself. Such evidence which comes indirectly that is to say not from the knowledge
of the prson who deposes it but through some other person.

Section 60 of IEA states that the oral evidence must be direct which means if the evidence is
to be led about the fact which can heard,a witness must be produced who says that he heard
it.

In the present sceniory the PW4, Alekh Parnami is not the one who heard the deceased but
rather he only became the witnwss on th basis that he only heard his fathr and grandfather
conversation that the deceased was not happy with his two elder sons. So it cant be held
admissible in the court. Th same was confirmed in the case of

kalian kumar gogoi V. Ashutosh Agnihotri and Anr. 2007(4)GLT374.The cort held that
hearsay testimony is not admissible since the statements of witnss are not consider reliable
because it lacks certianity. Hearsay testimony unfair to th individual against whom it is
provided since it can lead to fraud, deceit, or undue influence if allowed in court.

Thrfore, such hearsay testimony ofPW4 shall not be allod in the court as it is not rliable
enough to be used as evidence.

1.4 Whether the version of PW3 is admissible or not?

No, the statement by PW3 cannot be considered admissible. He turned hostile when was
called to testify his statement in the court.
Mr. Parnami who is the only person with whom the deceased used to share about his life is
not presented as a witness.
 AIL MOOT MEMORIAL 2023

1.5 Whether the version of PW1 is admissible or not?

No, the statement of PW1 as a witness is not admissible. PW1 is the grandchild of the
deceased who was of around four years of age at the time of death of the deceased who is
although now of 16 years of age.
In case of State v. Allen ,it was held that courts must consider 5 factors when determining
competency of child witness. Absence of any one of them renders the child in competent to
testify. They are:
1. An understanding of the obligation to speak the truth on the witness stand;
2. The mental capacity at the time of the occurrence concerning which he is to testify, to
receive an accurate impression of it;
3. A memory sufficient to retain an independent recollection of the occurrence;
4. The capacity to express in words his memory of the occurrence; and
5. The capacity to understand simply questions about it.
In the present case, not all these conditions are fulfilled. The second condition i.e. the mental
capacity at the time of occurrence concerning which he is to testify, to receive an accurate
impression of it is not satisified . PW1 was very young to even remember names of dozens
of households, who used to work in their haveli. At the age of 4 how could he remember
exectly the name of Sartaj & that he prepared hukkah for his grandfather. Having an accurate
impression is doubtful. There is no chancethat he can have memomry sufficient to retain an
independent recollection of the occurrence after more than 10 years & that too of the event
occurred when he was just four years of ageas that is needed to proved in third condition
mentioned above.
Moreover,the witness himself claimed that he made his 161 CrPC statement under fear of
police. Therefore,in any case, the version of PW1 cannot be admissible.

1.6 Whether there exist a reasonable doubt or not?

Yes, there exist various reasonable doubts because there is no direct evidence. The guilt
should be proved beyond reasonable doubt that a reasonable man with ordinary prudence can
have. The rule is that whoever alleges a fact must prove it. Moreover, a reasonable doubt is, a
doubt based upon reason and common sense and is not based purely on speculations. In this,
immediate case, there is no direct evidence and the accused are tried on the basis of
circumstantial evidences. That is, the prosecution case is mainly resting upon circumstantial
evidences as there is no eye witness to the incident. The prosecution is unable to establish the
case beyond reasonable doubt.
 AIL MOOT MEMORIAL 2023

In the case of Sharad Birdi Chand Sharda v. State of Maharashtra 9, Hon’ble SC laid
down five golden principles i.e., panchsheel of the proof of the case based on
circumstantial evidence, which were-
 The circumstances from which the guilt is to be drawn must or should be fully
established.
 The facts established should only be consistent with the guilt of the accused &
there should not be any explainable hypothesis other than the guilt of the
accused.
 The circumstances should have a conclusive nature.
 Circumstance should exclude every other hypothesis.
 The chain of evidence must be so complete that it does not leave any ground
in favour of the innocence of the accused.

Therefore, here the circumstances from which prosecution has drawn guilt are not connected
and are not been dully fulfilled. The genuineness of the reports has not been established.
Moreover, Jatindas was of 90 years of age at the time of his death which is why the death was
not considered suspicious.

Nagendra Shah v. State of Bihar10

In this case, Hon’ble SC has held that when the chain of circumstantial evidence is not
complete, falsity of the defence is no ground to convict the accused.

9
1984 AIR
10
2021 SC 717