Memorial For Defense (TC117)

TC 117
1st NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2024
BEFORE THE COURT OF SESSIONS,

AT DEHUJ
S.C. NO.XX OF 2024
STATE OF DEHUJ
(PROSECUTION)
v.
GAUTAM KUMAR & ORS.
(DEFENCE)
FOR OFFENCES CHARGED UNDER:
SECTION 302, 365, 304-B & 302 READ WITH SECTION 120B & 498-A OF THE
INDIANA PENAL CODE, 1860
UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE
MEMORANDUM ON BEHALF OF THE DEFENCE

1ST NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2024
TABLE OF CONTENTS
TABLE OF CONTENTS
Table of Contents ii
List of Abbreviations iii
Index of Authorities iv
Table of Cases iv
Books v
Lexicons vi
Websites vii
Statutes vii
Statement of Jurisdiction vii
Statement of Facts viii
Statement of Charges x
Summary of Arguments xi
Arguments Advanced
Whether Accused are guilty of dowry death and cruelty u/s 304B r/w 498A OF IPC? xii
Whether Accused are guilty for murder under section 302 of IPC? xx
Whether accused are guilty of kidnapping and criminal conspiracy u/s 364 r/w 120B of
IPC? xxviii
Prayer xxxii
MEMORANDUM ON BEHALF OF THE DEFENCE 2|Page

LIST OF ABBREVIATIONS
LIST OF ABBREVIATIONS
AIR All India Reporter

All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defence Witness
Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
n. Foot Note no.
p. Page No.
P&H Punjab and Haryana High Court
PW Prosecution Witness
Raj Rajasthan High Court
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v. Versus

INDEX OF AUTHORITIES
TABLE OF CASES:
1. Ashok v. State of Maharashtra' (2015) 4 SCC 39
2. Amar Singh v. State of Punjab. AIR 1987 SC 826: (1987) 1 SCC 679: 1987 Cr.L.J. 706).
3. Amar Mishra v State of Delhi, MANU/DE/3866/2011
4. Biswajit Halder @ babu Halder & Ors. Vs. State of W.B. (2008) 1 SCC 202
5. Babu alias Lingaraj Mahakul v. State of Orissa
6. Babaji Charan Barik vs State 1981 Supp SCC 54
7. Commissioner of Income Tax v. Patranu Dass Raja Beri, AIR 1982 PH 1,4
8. C. Chenga reddy v. state of Andra Pradesh, MANU/SC/0928/1996
9. Dasari Siva Prasad Reddy vs Public prosecutor (2004) 11 SCC 282
10. dhananjoy Shil vs. State of tripura (2013) 2 TLR 1060
11. Esher Singh v State Of Andhra Pradesh, 2004 (4) ALT 28
12. Gade Lakshmi Mangraju alias Ramesh v. State of Andra Pradesh MANU/SC/0358/2001
13. Gaurav v. State MANU/DE/3275/2013
14. Jamsing Hulya Barels v The State of Maharashtra MANU/MH/0444/2010
15. Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (AIR 2011 SC 760),
16. Lakhan Singh @ Pappu v. The State of NCT of Delhi
17. Lechu Meah and Ors. Vs.. The State and Ors LEX/BDHC/0146/2013
18. Manju Ram Kalita vs. State of Assam reported (2009) 13 SCC 330
19. Meharaj Singh and Ors. Vs. State of U.P. and Ors, (1994) 5 SCC 188
20. Mohd. Muslim vs State of U.P, 2023 LiveLaw (SC) 489
21. Philips Fadrick D’ Souja and Ravondra v The State of Maharashtra and The Inspector of
Police MANU/MH/0842/2008
22. R v Haynes 23 CCC101 (NSSC, 1914).
23. Samane Khan vs state of Rajasthan
24. State of Kerala vs Manjuthana CRL.A NO 100124 OF 2018
25. Satbir Singh v state of Haryana 2021 SCC Online SC 404
26. Sharad Birchand Sarda v. State of Maharashtra (1984) 4 SCC 116
27. Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793.
28. Sita Raut v. The State of Bihar and Bagar Raut MANU/BH/1172/1999
29. Solanki Chimanbhai Ukabhai v. State of Gujarat1, (AIR 1983 SC 484: 1983 Cr. L. 822)

30. Smt.Severo Devi v. State of H.P 1996 (1) Crimes 575 (A.P.)
31. State of Madhya Pradesh vs Phoolchand Rathore 2023 LiveLaw (SC) 408
32. Satyavan v state of u.P 2022 9210 ALL
33. State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
34. Sundar lal vs The State of Uttarakhand SLP(Crl) No.-003546
35. State of Tamil Nadu v. Jayalalitha (2000) 5 SCC 440
36. Trimukh Maroti Kirkan v. State of Maharashtra MANU/SC/8543/2006
37. Vimlesh v. Prakash Chand Sharma AIR 1992 All. 260
38. Vijay kumar vs state, 2014 (4), JCC 2494
BOOKS:
1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)
2. Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal
Jurisprudence, (2nd Ed 1989)
3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
4. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)
5. Harris, Criminal Law, (22nd Ed. 2000)
6. Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

WEBSITES:
1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)
LEXICONS:
1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

STATEMENT OF FACTS
STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with
Section 209 of the Code of Criminal Procedure, 1973.
Section 177:
‘177. Ordinary place of inquiry and trial-
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed. ‟
Read with Section 209:
‘209. Commitment of case to Court of Session when offence is triable exclusively by it-
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall-
(a) commit the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.‟

STATEMENT OF FACTS
STATEMENT OF FACTS
1. Aruna, a talented and accomplished young woman, completed her LL.B. degree from Gopal
Ishwar Prasad University (G.I.P.U.) in 2019. After much anticipation, Aruna's parents were
delighted to announce her marriage, which was solemnized on 25.04.2021, at Loni Colony
Ghaikawad. The groom, Mr. Gautam Kumar, is a young and charming individual with
aspirations to establish his own business. We believe his entrepreneurial spirit aligns well with
Aruna's enthusiasm and determination.
2. Gautam Kumar's father holds a prestigious position as a government employee, currently

serving as the Joint Secretary in the Ministry of Home Affairs. The union of Aruna and Gautam
Kumar not only marks the beginning of a new chapter in their lives but also symbolizes the
blending of two families with diverse backgrounds, experiences, and aspirations. As we
witnessed the marriage ceremony, the joy and camaraderie shared by both families were truly
heartwarming. Aruna's marriage to Gautam Kumar was celebrated as a grand affair in the city
of Dehuj, with guests and relatives from across the nation joining to bless the happy couple.
3. Aruna, thereafter, residing with her in-laws in the Golden Enclave near Nangali Dairy,
Dehuj, has been facing difficulties in her marital home. She was suffering from a rough patch
which has also, had an impact on her mental health. She even, used to hurt her sometimes and
act weirdly. It came to Gautam’s notice only after marriage that she was not well. While she
was already struggling to get a job, she was made to get married by her parents, which has been
expressed by her at times, to be stressful. When attempts were made to help her, and take her
to specialist, for which her medical history as well as parents’ help was required, they did not
come forward to help us at all. They rather, threatened us to implicate in false dowry case if we
showed any reluctance or disagreements to their decisions w.r.t their daughter.
4. On the evening of 20.05.2023, around 7:00 PM, Aruna left her residence to attend a family
get together at her parental home. The chain of events that transpired that evening are:
a. Gautam had already left his house with his friend Manoj, to go to Manoj’s flat in Manar
Apartments in ShahidBagh, Dehuj. While Aruna was about to leave her house at around
7pm after informing her mother-in-law. This was also, witnessed by Surbhi Singh, who
has stated that she saw Aruna in the corridors. However, Aruna has not arrived at her
parental residence, and her current whereabouts remain unknown.

STATEMENT OF FACTS
b. Aruna's phone has been switched off since 8 PM on May 20, 2023. Despite the efforts,
there has been no progress in locating Aruna or receiving any information regarding her
whereabouts. While even, Gautam had no idea about the fact that his beloved wife has
gone missing. He had not been informed, nor had his parents been. It was only the next
day i.e., 21st May 2023, that at around 11am, Gautam got a call from his mother that Aruna
is missing and police has come to ask them about Aruna at their house. Then Gautam and
his friend rushed back, very panicked and clueless.
c. FIR was lodged against Gautam, his friend and his parents wherein investigation was
handed over to I.O. Krishna M, Sr. PI, Buddh Vihar. As per the Inquest Report prepared
by I.O., the information for the same was received at 10 AM, on 21st May, 2023, while
only after 5 days, they found the body on 27th feb, 2023. It has been also mentioned here
that, SI Gunjesh Singh found the body facing the ground and she was last seen by her
neighbour, Surbhi singh. It has also been stated that there were various injuries and marks
on the body, and her clothes were damaged when discovered but, the apparent reason of
death is stated to be heart attack.
d. The post mortem report suggest that the autopsy took place on 28 th May, 2023 and the
death has been caused 5-6 days prior to autopsy report. While she has been found to be
missing since 20th May, 2023 and her body has been discovered on 27 th May, 2023, for
which information was already received on 21st may, 2023. It also suggests that the death
was caused due to mechanical force applied externally to the neck and surrounding
structures by a human hand or any item. These injuries may result in decreased cerebral
oxygen delivery either by compression of cervical blood vessels or tracheal occlusion.
The shock received by the body from the severe injuries caused by the strangulation has
resulted in severe damage, ultimately leading to instantaneous death.
5. Aruna’s father told the police officer, who narrated all the incidences of assault committed
against Aruna for dowry. The police then lodged an FIR against Aruna’s husband, Gautam
Kumar, and the in-law’s u/s 304B, 364, 498A, 120B, and 302 IPC r/w Sec 3/4 Dowry Act,
1961. The police commenced the investigation into the matter and recorded the statements of
all possible witnesses.

STATEMENT OF CHARGES
CHARGE 1
Gautam Kumar, Sanjana Devi, Manoj Kumar and Sanjay Kumar are charged under sections
302, 365, 304B, 302 r/w 120B and 498A.
MEMORANDUM ON BEHALF OF THE DEFENCE 10 | P a g e

SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
ISSUE I
WHETHER GAUTAM KUMAR AND OTHERS ARE GUILTY OF

DOWRY DEATH AND CRUELTY?
It is humbly submitted before this Hon’ble Court that the accused are not guilty of dowry death
under section 304-b of IPC and section 498-a of Indian penal code, 1860.
ISSUE II
WHETHER GAUTAM KUMAR AND OTHERS ARE GUILTY OF

MURDER AND CRIMINAL CONSPIRACY?
It is humbly contended before this Hon’ble Court that the accused is not guilty for committing
the offence of murder under Sec 302 read with Sec 120B of IPC, considering that the accused
was not present with the prosecutrix on the day of commission of offense [2.1]. It shall, also, be
noted that there is absence of any motive or knowledge on part of the accused to kill prosecutrix
[2.2.]. Furthermore, the Prosecution’s case must be dismissed because of heavy reliance on
uncorroborated statements, vague medical evidence [2.3] and faulty investigation [2.4], all
creating the existence of a reasonable doubt [2.5].
ISSUE III
WHETHER ACCUSED ARE GUILTY OF KIDNAPPING AND

CRIMINAL CONSPIRACY U/S 364 R/W 120B OF IPC?
It is humbly contended before this Hon’ble Court that the accused cannot be held liable under
section 364 of IPC read with section 120B, as no essentials of section 364 stand fulfilled in the
present case [3.1] and no direct or cogent evidence found on record to prove the guilt of accused.
[3.2] there was also, no evidences produced to establish criminal conspiracy in present case.
[3.3]

1ST TRIAL ADVOCACY MOOT COURT COMPETITION, 2024, BY IMS UNISON, DEHRADUN
ARGUMENTS ADVANCED
ISSUE-I
THAT GAUTAM KUMAR AND OTHERS ARE NOT GUILTY OF
DOWRY DEATH AND CRUELTY.
It is humbly submitted before that the accused are not guilty of dowry death under section 304-b
of IPC and section 498-a of Indian penal code, 1860.
¶1. Section 304-b of Indian penal code,1860 states that

(1) where the death of a woman is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for dowry, such death shall
be called "dowry death", and such husband or relative shall be deemed to have caused her
death.
Explanation. For the purposes of this sub-section, "dowry" shall have the same meaning as in
section 2 of the dowry prohibition act, 1961 (28 of 1961).
(2) whoever commits dowry death shall be punished with imprisonment for a term which shall
not be less than seven years, but which may extend to imprisonment for life.
¶2. Section 498-A of Indian penal code, 1860 states that

Section 498A of IPC 1860 provides that “whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable to fine.” It further explains cruelty
as “(a) any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or (b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such demand.”1
1
The Indian Penal Code, 1860 (Act 45 of 1860), s.498A.

3.1. CIRCUMSTANTIAL EVIDENCE DO NOT OF ESTABLISH THAT

DEATH OF THE VICTIM WAS CAUSED BY THE ACCUSED:
¶3. It is humbly submitted that in the absence of any evidence to prove the charges against the
accused under section 304-b read along with section 498A, he cannot be held liable. It is one of
the essentials under the section that in order to prove a case of dowry death it would have to be
shown that in addition to the fact that the death took place otherwise than in normal circumstances
within 7 years of marriage, that soon before her death, the wife was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in connection with, any demand
for dowry. In explanation to sub-section (1) of section 304-b it had been mentioned that for the
purpose of the said sub-section, "dowry" shall have the same meaning as under section 2 of the
dowry prohibition act, 1961.
¶4. Section 2 of the dowry prohibition act states that

In this act, "dowry" means any property or valuable security given or agreed to be given either
directly or indirectly--(a) by one party to a marriage to the other party to the marriage; or
(B) by the parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person;
At or before 1[or any time after the marriage] 2[in connection with the marriage of the said
parties but does not include] dower or mahr in the case of persons to whom the Muslim personal
law (Shariat) applies.
3* * * * *
Explanation ii.--The expression "valuable security" has the same meaning as in section 30 of the
Indian penal code (45 of 1860).2
¶5. In the instant case, the complainant stated that it was he who willingly and generously gave
utensils, furniture, other household items and 25 lakhs to her daughter for her wellbeing 3. It is
nowhere stated by the prosecution in his statements that the accused and his family forced him or
his daughter to give such gifts during the marriage or even after the marriage. The couple was
happily married for three years, and the accused took care of the victim wholeheartedly without
any such dowry demands.
2
The Dowry Prohibition Act, 1961 (Act 28 of 1961), s.2.
3
Trial proposition ¶ 2
¶6. In Biswajit Halder @ babu Halder & Ors. Vs. State of W.B. 4Wherein, in facts which were
very similar, it was held that there was practically no evidence to show that there was any cruelty
or harassment for, or in connection with, the demands of dowry. There was also no finding in that
regard. It was further observed that this deficiency in evidence proved fatal for the prosecution
case and even otherwise mere evidence of cruelty and harassment was not sufficient to attract
section 304-B IPC. It had to be shown in addition to that such cruelty or harassment was for, or
in connection with, demand of dowry.
¶7. It is well settled in case of state of Karnataka v tailor manjunatha5 that unless there is clear
evidence showing that the accused demanded dowry followed by ill-treatment prior to death there
is no legality in convicting accused for the offense under section 304-b Indian penal code, 1860.
3.2 . NO PROOF OF CRUELTY “SOON BEFORE DEATH” OF THE

VICTIM
¶8. It is urged that in order to arrive at the presumption of dowry death under section 113B of the
Indian evidence act, 1872, it would have to be shown by the prosecution that soon before her
death, such woman had been subjected to cruelty or harassment for, or in connection with, any
demand for dowry, which would lead to a presumption that such person caused the dowry death.
¶9. It was held in Satbir Singh v state of Haryana6,

"soon before" is a relative term which is required to be considered under specific circumstances
of each case and no straitjacket formula can be laid down by fixing any time-limit. ... In relation
to dowry deaths, the circumstances showing the existence of cruelty or harassment to the
deceased are not restricted to a particular instance but normally refer to a course of conduct.
Such conduct may be spread over a period. ... Proximate and live link between the effect of cruelty
based on dowry demand and the consequential death is required to be proved by the prosecution.
The demand of dowry, cruelty or harassment based upon such demand and the date of death
should not be too remote in time which, under the circumstances, be treated as having become
stale enough."
4
[Biswajit Halder @ babu Halder & Ors. Vs. State of W.B. (2008) 1 SCC 202]
5
state of Karnataka v tailor manjunatha
6
Satbir Singh v state of Haryana 2021 SCC Online SC 404

¶10. In the instant case, no charge could be brought against the appellant under any of the penal
provisions as there was no demand of dowry by the appellant. There was no harassment in close
proximity to the time of death. The prosecution itself had submitted that Aruna, the victim, had
married the accused, Gautam kumar happily with her will and the whole occasion of their
marriage was a fun and a loving affair. There is no evidence on the part of the prosecution to
prove beyond reasonable doubt that the accused was subjected to any sort of harassment or cruelty
that too in relation to the demands of any money or property.
¶11. Rather, in the case at hand, it is clear that Aruna was going through a mental condition which
was due to dissatisfaction which she was feeling due to her career. She was going through grave
depression and this very fact was concealed by the parents of the deceased and it was her in-laws
and her husband who took care of her and took her to the psychiatrist. When Aruna's in-laws tried
to discuss her situation with her parents, they did not take it well and acted indifferent to the issue.
The evidence is totally insufficient to prove that the death of the victim was caused by any sort
of cruelty on part of the accused.
¶11. In the case of Babu alias Lingaraj Mahakul v. State of Orissa 7, it was held that “Suspicion
however strong it may be, cannot take the place of proof. Where the evidence is lacking there can
be no conviction.”
3.3 GUILT NOT PROVED BEYOND REASONABLE DOUBT
¶14. To prove a dowry death case "beyond reasonable doubt" under IPC, the following elements
must be established:
1. The death of a married woman: it must be proven that the woman is married and has died.
2. Death should have occurred within seven years of marriage: the death must have occurred
within seven years of the marriage. If the woman dies after seven years, it will not be
considered a dowry death under IPC.
3. The death must be a result of burns or bodily injury: the cause of death should be proven
to be burns or bodily injury.
4. Cruelty or harassment for dowry: it must be established that the woman was subjected to
cruelty or harassment by her husband or his relatives in connection with demands for
dowry. Cruelty implies any willful conduct that is of such a nature as is likely to drive the

woman to commit suicide or to cause grave injury or danger to her life, limb, or health.
5. The harassment or cruelty must be related to dowry demands it must be proven that the
cruelty or harassment suffered by the woman is a consequence of dowry demands made
by her husband or his relatives. The burden of proof lies with the prosecution to establish
these elements beyond reasonable doubt. This means that the court should be convinced
of the accused's guilt to the extent that there is no other reasonable explanation of the
events.
¶15. It is important for the prosecution to present a solid case supported by evidence that proves
each of these elements beyond a reasonable doubt. If any of these elements are not proven or if
there is a reasonable doubt regarding any of them, the accused cannot be held liable for dowry
death under the IPC.
¶16. In the Indian penal code (IPC), the phrase "beyond reasonable doubt" pertains to the standard
of proof required in criminal cases. It implies that guilt must be proven to such an extent that
there can be no reasonable doubt in the mind of a judge or jury regarding the accused's culpability.
This standard is set to ensure that an individual is not wrongfully convicted or punished without
sufficient evidence.
¶17. Where prosecution fails to prove genesis of offence, fairness of investigation is doubtful u/s
304B. The conviction was not sustainable, Smt.Severo Devi v. State of H.P 8.
¶18. It was observed by the court in the case of Satyavan v state of u.P9 that, the normal rule is
that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of
the prosecution to prove its case by establishing both the actus reus of the crime and the mens
rea. It must first satisfy the evidential burden to show that its allegations have something to
support them. If it cannot satisfy this burden, the defense may submit or the judge may direct that
there is no case to answer, and the judge must direct the jury to acquit.
¶19. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden
of proof (e.g. The fact that a woman was subjected to violence during sexual intercourse will
normally raise a presumption to support a charge of rape and prove that she did not consent). If,
8
Smt.Severo Devi v. State of H.P 1996 (1) Crimes 575 (A.P.)
9
Satyavan v state of u.P 2022 9210 ALL

however, the prosecution has established a basis for its case, it must then continue to satisfy the
persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable
doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case
and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the
defendant is entitled to be acquitted.
3.4 . CIRCUMSTANCES OF THE CASE DO NOT ESTABLISH THAT

VICTIM WAS SUBJECTED TO CRUELTY BY THE ACCUSED:
¶20. It goes without saying that matrimonial cruelty occurs within the precincts of the matrimonial
home of the wife, and she hardly shares her ordeals with someone other than her parents and her
near relatives. As a result, overwhelming evidence may not be available before the court in a case
under section 498A IPC. But that does not absolve the prosecution from the burden of proving
the charge by cogent, coherent and persuasive evidence. 10
¶21. In the instant case, there is no evidence by the prosecution to prove that there was any
instance of cruelty on the part of the accused. The victim, Mrs. Aruna married Mr. Gautam kumar,
the accused in a very lavish and a loving family affair. There has always been love and nothing
else between the couple. After a few days of the marriage, Aruna started showing signs of some
sort of mental condition. Aruna’s parents concealed the fact that their daughter was in a stable
mental condition. Rather she was going through fits and attacks of which the accused was not
aware of. When the accused tried to confront the victim’s parents, they refused to take her
back,they warned the family to implicate them in a false dowry case. In spite of that, Mr. Gautam
and his family stood by her side even though they could have ended the marriage at any moment.
They made sure to provide all the due medical care to the victim and had always kept with love
and care. There cannot be a single incident that could be shown that she was tortured or troubled
by the family of the accused or the accused himself.
3.5 . ONE SIGN OF ASSAULT DOES NOT AMOUNT TO CRUELTY
¶22. The Indian penal code (IPC) does not consider one incident of assault as cruelty per se.
Assault is categorized under section 352 of the IPC, which deals with punishment for assault or
criminal force otherwise than on grave provocation.
10
Manju Ram Kalita vs. State of Assam reported (2009) 13 SCC 330
¶23. However, if the assault is a continued pattern of behavior and falls under the definition of
cruelty, it may be covered under section 498A of the IPC. This section deals with cruelty to a
woman by her husband or relatives. Section 498A of the Indian penal code (IPC) is considered a
continuous offense. It deals with cruelty by a husband or his relatives towards a married woman.
The offense is considered continuous because the cruelty may occur over a period of time. To
establish cruelty under section 498A, it is necessary to prove a series of acts of cruelty aimed at
causing physical or mental harm to the woman. This may include physical assaults, emotional
abuse, harassment, or any act that causes danger to her life, limb, or health.
Therefore, one isolated incident of assault, without any evidence of a continued pattern of cruelty,
would not be considered cruelty under the IPC. However, it is essential to consult with a legal
professional for accurate interpretation and advice specific to the situation at hand.
¶24. In Manju ram Kalita vs. State of assam11, the court has observed that " cruelty" for the
purpose of section 498a, ipc is to be established in the context of section 498a, ipc as it may be
different from other statutory provisions. It is to be determined / inferred by considering the
conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether
it is likely to drive the woman to commit suicide etc. It is to be established that the woman has
been subjected to cruelty continuously / persistently or at least in close proximity of time of
loading the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of
section 498a, ipc. Causing mental torture to the extent that it becomes unbearable may be treated
as cruelty."
¶25. In the case of dhananjoy Shil vs. State of tripura12reported in (2013) 2 tlr 1060 also it was
held by this court that a single incident of assault may not amount to an offense under section
498a ipc because cruelty for the purpose of section 498a is different from other statutory
provisions and it is to be established against the appellant that he subjected his wife to cruelty
continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to
attract the provisions of section 498a ipc. in the case of Vimlesh v. Prakash Chand Sharma 13,
solitary instance of an emotional outburst or violent behavior cannot be considered as constituting
cruelty unless it is of a grossly serious and grave nature.
11
Manju ram Kalita vs. State of assam (2009) 13 SCC 330
12
dhananjoy Shil vs. State of tripura (2013) 2 TLR 1060
13
Vimlesh v. Prakash Chand Sharma AIR 1992 All. 260
¶26. In the instant case, according to the prosecution witnesses Aruna showed signs of physical
assault when she visited her parents' house, but it can nowhere be proved that those marks were
inflicted upon by the accused or his family. She was a patient of mental illness and used to harm
herself and taking her to the psychiatrist establishes her condition well. A mere single sign of
assault does not establish those to be inflicted upon the victim by the accused. Hence, the accused
is not guilty of offence under section 498A read with section 304B of Indian penal code, 1860.

ISSUE II
THAT ACCUSED ARE NOT LIABLE FOR MURDER AND CRIMINAL
CONSPIRACY U/S 302 R/W 120B.
It is humbly contended before this Hon’ble Court that the accused is not guilty for committing
the offence of murder under Sec 302 read with Sec 120B of IPC, considering that the accused
was not present with the prosecutrix on the day of commission of offense [2.1]. It shall, also, be
noted that there is absence of any motive or knowledge on part of the accused to kill prosecutrix
[2.2.]. Furthermore, the Prosecution’s case must be dismissed because of heavy reliance on
uncorroborated statements, vague medical evidence [2.3] and faulty investigation [2.4], all
creating the existence of a reasonable doubt [2.5].
2.1. Gautam Kumar was not present with the prosecutrix on the day of
commission of offense.
¶27. Alibi is not an exception that is available in the IPC or Indian Evidence Act,1872 or any
other law it is rather a rule of Evidence which is recognised under section 11 14 of the Evidence
Act. This section deals with Alibi which claims the existence a person to be present in some other
place. Justice Townshend wrote, in R v Haynes 15, "An alibi means proof of the absence of the
accused at the time the crime is supposed to be committed, satisfactory proof that he is in
someplace else at the time."
The Latin word alibi means ‘elsewhere’ and that word is used for
convenience when an accused is alleged to have inflicted physical injury to another person, the
burden is on the prosecution to prove that the accused was present at the scene and has
participated in the crime. The burden would not be lessened by the mere fact that the accused has
adopted the defence of alibi. The plea of alibi cannot be equated with a plea of self-defense and
ought to be taken at the first instance and not belatedly at the stage of defense evidence 16.
¶28. An alibi defence contains three key components:
o At the time or place of the crime, the accused was absent.
14
When facts not otherwise relevant become relevant. — Facts not otherwise relevant are relevant— (1) if they are
inconsistent with any fact in issue or relevant fact. (2) if by themselves or in connection with other facts they make
the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
15
R v Haynes 23 CCC101 (NSSC, 1914).
16
Lakhan Singh @ Pappu v. The State of NCT of Delhi
o No opportunity that was reasonable for the defendant to commit the crime had
presented itself; and
o By other means, the crime could not have been committed by the defendant.
¶29. In the instant case, the accused, Gautam Kumar, was present at the flat of his friend, Manoj
Kumar, in Shahidbagh, Dehuj on the day his wife went missing i.e., 20th May, 2023, as he had
come back after months on that weekend from where he ordinarily resides and works. His friend
has deposed the fact that he was at his flat till 21 st May 2023, and additionally, it is also inferred
that he was completely unaware of the fact that his wife had gone to her parents’ house for a
family get together. That is why, nobody paid much attention to the fact because it was a part of
the prosecutrix’s normal course of life that she used to regularly visit her parents’ house. Even
after she didn’t reach her parental house, and went missing, Gautam Kumar or any of his family
member was not informed about the same.
¶30. It was only next day when police came to apprehend him and his family and friends, that
they were told about her missing complaint and an FIR lodged against Gautam for killing his
beloved wife and demanding dowry, by his own father-in-law. However, Gautam clearly stated it
in his statement that he was not present with the prosecutrix and had no idea about her chain of
events on the day of commission of offense as she didn’t inform him about the same.
¶31. In the case of 'Ashok v. State of Maharashtra'17 their Lordships of Hon. Supreme Court have
held that initial burden of proof is on prosecution to adduce sufficient evidence pointing
towards guilt of accused. This case was relied upon by the court in the case of Sundar Lal vs
The State18, where the plea of alibi was quashed on the basis that there was no alibi produced by
accused in his defense and there were other eyewitnesses to depose the fact that they saw the
accused with the deceased last before her death. Therefore, the trial court and high court
discarded plea of alibi. However, it is humbly submitted in the present case that the accused was
with his friend Manoj Kumar, as also deposed by him, on the day of commission of offense i.e.,
20th May 2023. The mother of Accused has also stated that their daughter in law informed her
that she is going to her parent’s house that evening all by herself as there was no specific mention
of her husband. Further, PW4, Surbhi Singh, the neighbour of Gautam and Aruna, also deposed
the fact that she saw Aruna leaving her matrimonial house, in the corridor of the building, on
20th of May 2023 and there has been no mention of her husband to be present with her.
17
'Ashok v. State of Maharashtra' (2015) 4 SCC 393
18
Sundar lal vs The State of Uttarakhand SLP(Crl) No.-003546
¶32. The prosecution is relying only on the statement of PW2, Mother of the deceased that the
prosecutrix had called her before she went missing and stated that she will be leaving her house
along with her husband and his friend but there is no direct, cogent evidence to prove the same.
While the defense has clearly stated the fact that the accused was not present with the prosecutrix
and she left alone from her matrimonial house. In the case of Kalyan Kumar Gogoi v. Ashutosh
Agnihotri19, the Supreme Court observed that Hearsay evidence is excluded on the ground that it
is always desirable, in the interest of justice, to get the person, whose statement is relied upon,
into court for his examination in a regular way, in order that many possible sources of inaccuracy
and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross-
examination.
2.2. Absence of Mens Rea on the part of accused
¶33. Crimes require a culpable mental state called "mens rea," which is Latin for a "guilty mind."
"Mens rea" refers to the defendant's state of mind and criminal intent when they commit a
criminal act. Mens rea, along with actus reus, are elements of the crime that must be proven
beyond a reasonable doubt. The accused shall not be convicted for committing culpable homicide
amounting to murder under sec-302 of I.P.C. The provision with regards to culpable homicide
amounting to murder is enumerated in sec-300 of I.P.C. which states that,
Except in the cases herein after expected, culpable homicide is murder,
 If the act by which death is caused is done with the intention of causing death.
 If it is done with the intention of causing such bodily injury as the offender knows to be
likely to cause death of the person to whom harm is caused.
 If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death.
 If the person committing the act knows that it is so imminently dangerous that it must, in
all probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
¶34. The gist of the aforesaid definition suggest that ‘act and intention’ are the two most essential
ingredients on the basis of which a person can be convicted under sec-302 of I.P.C. for committing
culpable homicide amounting to murder. But here in the instant case, neither the intention nor
the act was witnessed on the part of the accused. There is no sufficient evidence relating to
‘actus reus’ and ‘mens rea’ which persuade to the court to act thereupon. The word ‘actus’
19
Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (AIR 2011 SC 760),
connotes ‘deed’ that is a result of human conduct and the word ‘reus’ means ‘forbidden by law’.
Thus, when we use the technical term actus reus, we include all the external circumstances and
consequences specified in the rule of law as constituting a forbidden situation.
¶ 35. ‘Mens Rea’ has been often defined to mean mental element or ‘a guilty mind’ or an ‘evil
intention’. The doctrine of mens rea is expressed in the familiar Latin maxim, ‘actus non facit
reum nisi mens sit rea’ i.e. the act does not make one guilty, unless the mind is guilty. It is a well
settled principle that where the case is mainly based on circumstantial evidence, the court must
satisfy itself that various circumstances in the chain of evidence should be established clearly and
that the completed chain must be such as to rule out a reasonable likelihood of the innocence of
the accused
¶36. In the case of State of Madhya Pradesh vs Phoolchand Rathore20, it was held that there is
no direct eye witness account of the murder. The body of the deceased was found in the open on
a railway track. In such circumstances to sustain a conviction the court would have to consider
— (i) whether the circumstances relied by the prosecution have been proved beyond reasonable
doubt; (ii) whether those circumstances are of a definite tendency unerringly pointing towards
the guilt of the accused; (iii) whether those circumstances taken cumulatively form a chain so far
complete that there is no escape from the conclusion that within all human probability the crime
was committed by the accused; (iv) whether they are consistent only with the hypothesis of the
accused being guilty; and (v) whether they exclude every possible hypothesis except the one to
be proved.
¶37. The nature and character of the accused through his family and friends have come out to be
as that of a simple, honest and kind man who has always taken care of and respected every
individual. He loved his wife and took care of her despite her mental condition where she used to
act weirdly and even, used to self harm. Her husband had never shown any ill-will or even an
intention of causing slightest harm to the deceased. He is being falsely implicated by the parents
of deceased and trying to destroy his life and reputation, instead of searching for the real culprit.
¶38. That in the landmark case of Sharad Birchand Sarda v. State of Maharashtra21 , the law
on convictions based on circumstantial evidence has been put forth by the Supreme Court in the
form of ‘Panchsheel Test’: 1) The circumstances from which the conclusion of the guilt is to be
drawn should be fully established. 2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused. 3) The circumstances should be of conclusive nature and
tendancy. 4) They should exclude every possible hypothesis except the one to be proved, and 5)
20
State of Madhya Pradesh vs Phoolchand Rathore 2023 LiveLaw (SC) 408
21
Sharad Birchand Sarda v. State of Maharashtra (1984) 4 SCC 116
There must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with innocence of the accused and must show that in all human probability
the act must have been done by the accused.
¶39. In the present matter, the prosecution has failed to establish any direct or cogent evidences
to prove that the accused has committed the murder. No weapon of crime has been recovered
from the site or any eyewitnesses of the same found. The prosecution is merely assuming my
client to be guilty of the offense as a result of their confirmation bias. No proper investigation has
been carried out or even, detailed analysis of injuries done by the medical examiner in the autopsy
of the body of the deceased, which could clarify the exact cause of death. Even the property so
seized, has not been examined properly to verify who it actually belongs to through fingerprints
or dna examination.
¶40. Moreover, the relationship between prosecutrix as well as the accused, Gautam is tried to be
shown as ruined as she has been subjected to mental and physical torture (of which again no
substantial proofs have been produced.) and dowry demands. Relying solely on the statements of
the parents of prosecutrix, who didn’t even come forward to help their ailing child when her
treatment by the psychiatrist failed and who are trying to falsely implicate that person who has
always tried to protect their daughter even after all odds, will be grave miscarriage of justice. If
at all the relationship they shared was so toxic, both the families would have tried to end it in the
gap of three years. But it wasn’t the case. The prosecutrix has always gone back to her
matrimonial house while husband has taken care of her, protected her and showed her to doctors
when her own parents didn’t. Mens Rea is considered as guilty intention22 , which is proved or
inferred from the acts of the accused 23. It is submitted that the intention to kill had not been
established in the light of clear-cut motive of the respondent. Arguendo, absence of motive and
intention is a sufficient ground to dismiss the case.
“Certainly, it is a primary principle that the accused must be and not merely may be guilty
before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and
divides vague conjectures from sure conclusions.24
2.3. VAGUE MEDICAL EVIDENCE AND DOCTOR’S TESTIMONY
¶41. Section 45 of the Indian Evidence Act envisages regarding opinion of the experts as per
which When the Court has to form an opinion upon a point of foreign law or of science, or art, or
22
Commissioner of Income Tax v. Patranu Dass Raja Beri, AIR 1982 PH 1,4
23
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
24
Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793.
as to identity of handwriting [or finger impressions], the opinions upon that point of persons
specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting]
[or finger impressions] are relevant facts. Such persons are called experts. It is expected from an
expert that his opinion must be firm and should not be vague, bald or evasive or dependent upon
the contingencies. The injuries should be opined to be simple or grievous in nature.
¶42. Their Lordships of the Supreme Court in Solanki Chimanbhai Ukabhai v. State of
Gujarat25, observed: - "Ordinarily, the value of medical evidence is only corroborative. It proves
that the injuries could have been caused in the manner alleged and nothing more. The use, which
the defence can make of the medical evidence, is to prove that the injuries could not possibly
have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however,
the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever
of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses
cannot be thrown out on the ground of alleged inconsistency between it and the medical
evidence."
¶43. In the case of Samane Khan vs state of Rajasthan26, the court held that “the phrase used by
the doctor that the injuries might be life threatening if not treated on time is not an opinion given
by an expert doctor serving in Community Health Center. Such type of opinion can be given by
any rustic villager or an illiterate person. Why the opinion is sought from the doctor, if can’t give
a definite opinion. There is no opinion on record that the said injury was sufficient in ordinary
course of nature to cause death.”
¶44. The crux of the provision contained under Section 45 of the Indian Evidence Act is that
whenever an opinion is sought regarding the nature of injuries; it must be given by a specifically
skilled person so as to bring him in the definition of “expert” on that particular point. It must not
be fallacious or fallible as the same may instead of assisting the Court, mislead or confuse the
Court. Thus, in my view, the opinion should be firm and definite and only in that situation the
same is admissible in evidence under Section 45 of the Evidence Act, which is absent in the
present case.
¶45. If the evidence of the witness for the prosecution is totally inconsistent with the medical
evidence, this is a most fundamental defect in the prosecution case and unless reasonably
explained, it is sufficient to discredit the entire case. 27
25
Solanki Chimanbhai Ukabhai v. State of Gujarat25, (AIR 1983 SC 484: 1983 Cr. L. 822)
26
Samane Khan vs state of Rajasthan
27
Amar Singh v. State of Punjab. AIR 1987 SC 826: (1987) 1 SCC 679: 1987 Cr.L.J. 706).
2.4. FAULTY INVESTIGATION
¶46. It is humbly submitted that in the case of Mohd. Muslim vs State of U.P. 28
, it has been
stated that the chick FIR report was sent to the Court on 08.08.1995 with the delay of about 4
days. It is worth mentioning that FIR in a criminal case and particularly in a murder case is a vital
and a valuable piece of evidence especially for the purpose of appreciating the evidence adduced
at the trial. It is for this reason that the infirmities, if any, in the FIR casts a doubt on its
authenticity. The 6 FIR in such cases may also lose its evidentiary value. In Meharaj Singh and
Ors. Vs. State of U.P. and Ors.29, it has been opined that on account of the infirmities such an
ante-timing of the FIR loses its evidentiary value. Thus, this entitles the accused to be given the
benefit of doubt.
¶47. In the present case, the deceased is alleged to have gone missing on 20 th may, 2023, the FIR
report of which was filed the next day wherein the accused has already been charged with Sec
302, 364, 304B r/w 120B and 498A. It is to be noted that the FIR was lodged on 21 st May, 2023
while the the dead body was found on 27th may 2023 which confirmed the death of prosecutrix
but, the charges of murder were imposed on all the accused prior to the discovery of dead body.
This is a clear-cut case of an anti-timed FIR which has been so tampered to falsely implicate
Gautam. It casts a serious doubt on the credibility of the investigation carried out by the
investigating officer.
¶48. There has also been a delay on the part of lodging the FIR by the complainant. It has been
held in the case of Babaji Charan Barik vs State30, that the delay of 24 hours in lodging FIR in
a case u/s 304B and 498A of IPC was held fatal, witnesses were not believed.
¶49. It is also, humbly submitted that no evidence has been discovered to substantiate the fact
that it is Gautam who has murdered the prosecutrix. The present case is based on similar lines as
that of Dasari Siva Prasad Reddy vs Public prosecutor31 where the trial court observed that
(1) the incident did not occur during the intervening night of 19-4-1996/20-4-1996,
(2) the accused had no motive to kill his wife,
(3) version of PW 4 relating to D last seen in the company of the b accused, was doubtful, and
(4) the circumstance of abscondence could not be put against the accused as he did not abscond
initially but when the people gathered, he left the scene. Though the plea of alibi set up by
the accused was disbelieved, the trial court held that from the circumstances established by
28
Mohd. Muslim vs State of U.P, 2023 LiveLaw (SC) 489
29
Meharaj Singh and Ors. Vs. State of U.P. and Ors, (1994) 5 SCC 188
30
Babaji Charan Barik vs State 1981 Supp SCC 54
31
Dasari Siva Prasad Reddy vs Public prosecutor (2004) 11 SCC 282
the prosecution, it was not possible to say beyond reasonable doubt that the accused and
accused alone killed his wife. Thus, the trial court acquitted the accused. But the High Court
reversed the acquittal and convicted the appellant under Section 302 IPC. However, acquittal
under Section 498-A was confirmed. Allowing the appeal preferred by the accused, the
Supreme Court held that “However, all the factors mentioned by High Court need not give
rise to an irresistible inference that the accused remained in the house in the previous
night and the accused alone must have been responsible for the murder. At best, it can be
said that the view taken by the trial court is not the only-possible view. But that is not
enough to reverse the acquittal. Hence, the benefit of doubt was given to the accused.”
¶50. Therefore, on similar lines, the incident of murder did not take place in the time gap
mentioned in FIR, and as per autopsy, it was much later, while even the body was found on 27 th
may 2023. There is no evidence on record, to prove that any of the accused have motive to kill
their wife. Even the PW4, Surbhi Singh did not mention that she saw Gautam with Aruna and
thus, the same cannot be proved. There is, rather, a substantial fault in the investigation conducted
by the I.O. which indicates towards the fact that Gautam is trying to be falsely implicated. There
are no evidences to prove the meeting of minds or any pre-conceited plan to kill deceased found
to be present in this case. Hence, the charges of 302 r/w 120B cannot be proved beyond reasonable
doubt and benefit of doubt shall be guaranteed to accused.

ISSUE III:
THAT ACCUSED ARE NOT LIABLE FOR KIDNAPPING AND

CRIMINAL CONSPIRACY U/S 364 R/W 120B OF IPC.
It is humbly contended before this Hon’ble Court that the accused cannot be held liable under
section 364 of IPC read with section 120B, as no essentials of section 364 stand fulfilled in the
present case [3.1] and no direct or cogent evidence found on record to prove the guilt of accused.
[3.2] there was also, no evidences produced to establish criminal conspiracy in present case.
[3.3]
3.1. No essentials of section 364 stand fulfilled in the present case.
¶51. Section 364 of IPC32 defines- Kidnapping or abducting in order to murder :

Whoever kidnaps or abducts any person in order that such person may be murdered or may be
so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for
life or rigorous imprisonment for term which may extend to ten years, and shall also be liable to
fine.33
¶52. In the case of Sita Raut v. The State of Bihar and Bagar Raut34 it was held, in order to
prove charge under section 364 IPC, prosecution had to prove that either force or deceit was
practiced on person abducted as otherwise a conviction under Section 364 of IPC, could not stand-
Force or fraud must have been practiced upon person abducted. Thus, in the present case, there
are no evidences on record to prove that accused was present with aruna, or that she has been
decieted by her husband or any other accused or any force has been used.
¶53. In the case of Philips Fadrick D’ Souja and Ravondra v The State of Maharashtra and
The Inspector of Police35, the Hon’ble Court held “The purpose for committing the unlawful act
of kidnapping must exist at the time when the act of kidnapping or abduction takes place.”
Here in the instant case, the accused was not even present at the time of commission of offense
and was with his friend at his flat, which was at a distance far away from the matrimonial house
32 Indian Penal Code, Chapter XVI

33
Amar Mishra v State of Delhi, MANU/DE/3866/2011
34
Sita Raut v. The State of Bihar and Bagar Raut MANU/BH/1172/1999
35
Philips Fadrick D’ Souja and Ravondra v The State of Maharashtra and The Inspector of Police
MANU/MH/0842/2008
of prosecutrix.
3.2. No direct or cogent evidences found on record to prove the guilt of the
accused.
¶54. The Hon’ble Supreme Court in the case of Gade Lakshmi Mangraju alias Ramesh v. State
of Andra Pradesh36 has laid down that one circumstance by itself may not unerringly point to the
guilt of the accused. To acquit the accused on that basis is noy a safe method for appreciating a
case based on circumstantial evidence. It is cumulative result of all the circumstances alleged and
proved, which matters. It is not open to call out one circumstance from the rest for the purpose of
giving a different meaning to it.
¶55. In the case of Jamsing Hulya Barels v The State of Maharashtra37 Held that when no eye
witnesses are there and other witnesses and material on record are not enough to make appellant
guilty- Prosecution has not able to make out its case beyond reasonable doubts, then accused get
the benefit of doubt.
Here, in the instant case, the burden to prove that accused was present with the prosecutrix lies
on the prosecution to prove. While the prosecution, here, has failed to establish the same as no
evidence have been produced or witnesses examined who have witnessed the accused doing the
offense.
¶56. In the very recent case of Gaurav v. State38 , it was held that the prosecution is bound to
prove the guilt beyond reasonable doubt. Mere suspicion is not enough and no substitute for proof.
Court’s verdict must rest not upon suspicion but legal grounds established by legal testimony to
base conviction.
¶57. In the case of Trimukh Maroti Kirkan v. State of Maharashtra 39 , It was held that in case
there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial
evidence. The normal principle in a case based on circumstantial evidence is that the
circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly
established and they should be incapable of explanation on any hypothesis other than that of the
36
Gade Lakshmi Mangraju alias Ramesh v. State of Andra Pradesh MANU/SC/0358/2001
37
Jamsing Hulya Barels v The State of Maharashtra MANU/MH/0444/2010
38
Gaurav v. State MANU/DE/3275/2013
39
Trimukh Maroti Kirkan v. State of Maharashtra MANU/SC/8543/2006
guilt of the accused and inconsistent with their innocence. 40
¶58. In the very recent case of Lechu Meah and Ors. Vs.. The State and Ors,41 Reasonable doubt
that must be created in our mind must be based on the evidence on record itself and not on mere
inferences, surmises, speculations and conjectures. Once the guilt of the accused is established,
the mere fact that there is only a remote possibility in favour of the accused is itself sufficient to
establish the case beyond all reasonable doubt.
¶59. Here, in the instant case, the accused has successfully created established its case to the
preponderance of probabilities, and hence, created a reasonable doubt in the mind of the court,
through the following:
a. He was not present with the prosecutrix as stated by his friend, who was with him at
Manar Apartments, as well as even, the neighbour has not stated in her statement that she
had explicitly seen Gautam with her.
b. There is no proof adduced to prove the fact that Aruna was kidnapped, and by the accused.
No ligature marks have been found or ropes seized to signify her confinement. Even, the
property so seized from crime scene, has not been examined.
Therefore, in the instant case, taking into consideration the evidences which have come up before
the court, none of it stands worthy to prove the guilt of the accused.
3.3. No criminal conspiracy can be established on part of accused.
¶60. Criminal Conspiracy as defined under Sec. 120A consists of an agreement between two or
more persons to commit an illegal act or a legal act by illegal means. 42 The elements of a Criminal
Conspiracy are: Agreement between two or more people by whom the agreement is affected, a
criminal object which may be either the ultimate aim of the agreement, or may constitute the
means, or one of the means by which that aim is to be accomplished.
A. No Commission of An Illegal Act

¶61. As per Section 10 of the Indian Evidence Act, there must be some prima facie evidence in
proof of the existence of conspiracy. From the facts of the instant case, from nowhere can it be
40
C. Chenga reddy v. state of Andra Pradesh, MANU/SC/0928/1996
41
Lechu Meah and Ors. Vs.. The State and Ors LEX/BDHC/0146/2013
42
Esher Singh v State Of Andhra Pradesh, 2004 (4) ALT 28
propounded that there was commission of any illegal act on the part of the defendants. The
evidences which came before the court, do not draw a conclusive proof that can prove the
commission of the offence.
To apply this provision, it has to be shown that there exists a
reasonable ground to believe that conspiracy in between the accused took place. This condition
gets satisfied when there is some prima facie evidence to show the existence of conspiracy and
no such evidence exist in present case.
B. No Agreement or understanding between the accused.

¶62. The provision of Sec 120A and 120B IPC states that the offence of conspiracy lies not in
doing the act, or affecting the purpose for which the conspiracy is formed, nor in attempting to
do them, nor in inciting others to do them, but in the forming of the scheme or agreement between
the parties.
¶63. In the case, State of Tamil Nadu v. Jayalalitha43 it was held that unless the court has some
material to believe that there exists a reasonable ground that two or more people have conspired
together to commit an offence, a person cannot be charged under the said section. For an offence
under section 120-B° the intention must proceed to an agreement 44.
Thus, it is clear from the material evidences on record that there was no common design between
all those accused to do an illegal act. Therefore, it is humbly submitted that no conspiracy on the
part of the accused, could be proved beyond reasonable doubt.
43
State of Tamil Nadu v. Jayalalitha (2000) 5 SCC 440
44
Vijay kumar vs state, 2014 (4), JCC 2494
PRAYER
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon‘ble Court be pleased to:
1. Acquit the accused of the charges so plead.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted
Place: Dehuj S/d
Date: Feb 7, 2024 COUNSEL FOR THE DEFENCE

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TC 117

1st NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2024

BEFORE THE COURT OF SESSIONS,

S.C. NO.XX OF 2024

GAUTAM KUMAR & ORS.

FOR OFFENCES CHARGED UNDER:

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

List of Abbreviations iii

Statement of Jurisdiction vii

Statement of Facts viii

MEMORANDUM ON BEHALF OF THE DEFENCE 2|Page

AIR All India Reporter

MEMORANDUM ON BEHALF OF THE DEFENCE 3|Page

MEMORANDUM ON BEHALF OF THE DEFENCE 4|Page

1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

2. Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal

Jurisprudence, (2nd Ed 1989)

4. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5. Harris, Criminal Law, (22nd Ed. 2000)

6. Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

MEMORANDUM ON BEHALF OF THE DEFENCE 5|Page

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)

3. The Indian Penal Code, 1860 (Act 45 of 1860)

1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

MEMORANDUM ON BEHALF OF THE DEFENCE 6|Page

Section 209 of the Code of Criminal Procedure, 1973.

‘177. Ordinary place of inquiry and trial-

jurisdiction it was committed. ‟

Read with Section 209:

by the Court of Session, he shall-

(a) commit the case to the Court of Session;

during, and until the conclusion of, the trial;

are to be produced in evidence;

MEMORANDUM ON BEHALF OF THE DEFENCE 7|Page

2. Gautam Kumar's father holds a prestigious position as a government employee, currently

MEMORANDUM ON BEHALF OF THE DEFENCE 8|Page

MEMORANDUM ON BEHALF OF THE DEFENCE 9|Page

302, 365, 304B, 302 r/w 120B and 498A.

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WHETHER GAUTAM KUMAR AND OTHERS ARE GUILTY OF

WHETHER GAUTAM KUMAR AND OTHERS ARE GUILTY OF

WHETHER ACCUSED ARE GUILTY OF KIDNAPPING AND

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THAT GAUTAM KUMAR AND OTHERS ARE NOT GUILTY OF

DOWRY DEATH AND CRUELTY.

¶1. Section 304-b of Indian penal code,1860 states that

¶2. Section 498-A of Indian penal code, 1860 states that

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3.1. CIRCUMSTANTIAL EVIDENCE DO NOT OF ESTABLISH THAT

¶4. Section 2 of the dowry prohibition act states that

3.2 . NO PROOF OF CRUELTY “SOON BEFORE DEATH” OF THE

¶9. It was held in Satbir Singh v state of Haryana6,

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3.3 GUILT NOT PROVED BEYOND REASONABLE DOUBT

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MEMORANDUM ON BEHALF OF THE DEFENCE 16 | P a g e

3.4 . CIRCUMSTANCES OF THE CASE DO NOT ESTABLISH THAT

3.5 . ONE SIGN OF ASSAULT DOES NOT AMOUNT TO CRUELTY

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¶28. An alibi defence contains three key components:

o At the time or place of the crime, the accused was absent.