MOOTS AND PRACTICAL TRAINING, 2023 M EMORIAL for

RESPONDENT

Name: Sarthak Sharma

Class: B.com.LL.b(Hons.)
Roll No.: 295/19
Group No.: E7
Proposition No.: 5

IN THE

HON’BLE HIGH COURT OF PURAV PRADESH

IN THE MATTER OF

RAJNISH KUMAR…………….………………………………………………………APPELLANT

V.

STATE ……………………. ……….…………………………………………..…...RESPONDENT

CRIMINAL APPEAL NO…. OF 2023

FOR OFFENCES CHARGED UNDER

302A OF THE INDIAN PENAL CODE, 1860

-MOST RESPECTFULLY SUBMITTED IN THE HIGH COURT OF PURAV PRADESH

-WRITTEN SUBMISSION for the RESPONDENT

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TABLE OF CONTENTS

Content

s
TABLE OF CONTENTS..................................................................................................................2

LIST OF ABBREVIATIONS............................................................................................................3

INDEX OF AUTHORITIES.............................................................................................................4

STATEMENT OF JURISDICTION.................................................................................................5

STATEMENT OF FACTS................................................................................................................6

ISSUES RAISED..............................................................................................................................8

SUMMARY OF ARGUMENT..........................................................................................................9

ARGUMENTS ADVANCED..........................................................................................................11

PRAYER.........................................................................................................................................19

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LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

& And

SCC Supreme Court Cases

§ Section

Anr. Another

Art. Article

Arts. Articles

b/w Between

Can’t Cannot

AIR All India Report

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INDEX OF AUTHORITIES

INDIAN CASE LAWS

1. Khushal Rao v. State of Bombay

2. P.V. Radhakrishna v. State of Karnataka
3. Uka Ram vs State of Rajasthan
4. Laxman v. State of Maharashtra
5. Anil Phukan v. State of Assam
statutes
1. Indian Penal Code, 1860
2. The Code Of Criminal Procedure,1873
3. Indian Evidence Act,1872

Books
1. C.K.Takwani- Indian Penal Code
2. R.V.Kelkar’s- The Code of Criminal Procedure
3. Batuk Lal- The law of Evidence
Websites

1. Indiankanoon.org

2. Legalcrystal.com

3. Scconline.com

4. Lawctopus.com

5. Manupatra.com

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STATEMENT OF JURISDICTION

The Council on behalf of the Respondent, hereby submits his written statement in the case under
Section 302 of the Indian Penal Code, 1860.
The Council most humbly and respectfully, submits that this Hon’ble High Court has the
requisite subject matter jurisdiction to entertain and adjudicate this matter:

Section 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.

Section 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 2 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.

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STATEMENT OF FACTS

Facts Leading to the Dispute

1. Meeta and Rajnish were married in 2000 and residing in Rampur Purav Pradesh. They have
two daughters namely Ria and Ira who are 8 years and 5 years respectively. Rajnish has a
sister namely Preeti who is married and also resides in Rampur.

2. Both husband and wife have regular quarrels on frivolous issues which led to Meeta leaving
the matrimonial home along with her younger daughter Ira. She went to her father Praveen
Kumar in Razia bad Purav Pradesh.

3. Rajnish had gone on work tour and sent Ria to his sister's house. It came to the knowledge of
Meeta and she forcibly brought Ria at home despite Preeti's confrontation.

4. On hearing this, Rajnish was anguished and met Praveen in market place where the quarrels
took place and both Rajnish and Praveen grappled with each other. Rajnish fell down and
was hurt as he fell on some sharp edge thing in the shop.

5. In heat of passion Rajnish took a stick lying nearby and gave blow in the left side of lower
abdomen of Praveen Kumar. Praveen was suffering from Appendicitis and fell down.

6. The shopkeeper took him to the nearby hospital where he was brought in a critical condition
and the doctor started his treatment under emergency.

7. As he began to breath with difficulty Praveen gave his dying declaration about the
knowledge of Rajnish about the appendicitis to the doctors.

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CURRUNT STATUS

8. The complaint was registered on behalf of the deceased in the trial court of Razia

9. The trial court relying on the dying declaration of Praveen Kumar convicted Rajnesh for
commission of murder under 302 and sentenced him life imprisonment.

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ISSUES RAISED

-ISSUE I-

Whether the conviction can be given on the basis of the dying declaration?

- ISSUE II -

Whether the act should be considered an act of Murder or not?

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SUMMARY OF ARGUMENT

1. Whether the conviction can be given on the basis of the dying declaration?

The victim gave the dying declaration in a sufficient short span wherein he could not
have fabricated with the facts and was also not in a state to mislead the hon’ble court.
Also, it was the daytime when the incident took place and the blow hurled upon him was
given by his son-in-law himself. Thereby, no question arises as to the identification of the
accused. There is no reason for not trusting the declaration given by the deceased as he
was a man of honor and has no disturbing or criminal background.

2. Whether the act should be considered as an act of Murder?

To prove the case of Murder under section 302, the requirements are to prove the death of
the victim, intention to cause death or intention to cause such bodily injury as likely to
cause death of the victim or the knowledge of the accused that is likely to cause the death
of the victim, Actus Reus that caused death and no justification for the death.

 The death of the Victim has been clearly been caused by the fatal blow on the
appendix which has proved to be the final cause of death.

 The intention along with the knowledge has been proved by the Dying declaration
alone that the accused had a clear knowledge that the victim was suffering from
appendicitis and the blow has been made knowing this fact only as otherwise if
the intention was not to kill, the blown could have been on a different part of the

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like legs, etc. But here the intention was very much clear as the accused has aimed
perfectly on the spot.

 Actus Reus has been proved by the statement of the witness that has been
summoned by the hon’ble High court through the medium of affidavit. The
witness of the whole act is the owner of the shop who was present that whole time
at the shop when the incident has taken place.

 There is no legal justification for the act done by the accused as the act done by
him does not fall under any of the exceptions like self defense or the grave and
sudden provocation as the accused has left his home with this clear intention to
kill the victim.

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ARGUMENTS ADVANCED

1. Whether the conviction can be given on the basis of the dying

declaration?

Section 32(1) of Indian Evidence Act,1872 gives a detailed information about the
relevance of the Dying Declaration given by the person in such circumstances. The
section has been mentioned as under :-

32. Cases in which statement of relevant fact by person

who is dead or cannot be found, etc ., is relevant. —
Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense
which, under the circumstances of the case, appears to the
Court unreasonable, are themselves relevant facts in the
following cases:

1. when it relates to cause of death. —When the

statement is made by a person as to the cause of
his death, or as to any of the circumstances of
the transaction which resulted in his death, in
cases in which the cause of that person's death
comes into question. Such statements are
relevant whether the person who made them
was or was not, at the time when they were
made, under expectation of death, and whatever

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may be the nature of the proceeding in which

the cause of his death comes into question.

The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka1 held that ‘the
principle on which a dying declaration is admitted in evidence is indicated in latin
maxim, nemo morturus procsumitur mentri, a man will not meet his maker with a lie in
his mouth. Information lodged by a person who died subsequently relating to the cause of
his death, is admissible in evidence under this clause.

In the case of Uka Ram vs State of Rajasthan2 the Supreme Court held that a person
would not die with the lie on his lips because he had to meet the supreme power of this
world, that is, God. The court further observed that the sense of imminent death produces
in men’s minds the same feeling as that of a righteous man under oath; therefore, the
chances of falsehood are totally nullified.

It has been clearly mentioned that the dying declaration has been made immediately to
the act and so there is no chance of the declaration to be made in corrosive nature and the
victim has no time to think and then give the dying declaration. Moreover, it has been
proved clearly in the case of Khushal Rao v. State of Bombay3 that the dying declaration
is the conclusive evidence needed to be given to prove the person guilty and no other
evidence is to be given to corroborate the dying declaration unless the declaration seems
to be corroded by factor of time or personal thinking.

In Khushal Rao v. State of Bombay, the deceased made four separate and identical
declarations before the doctor, police inspector, Magistrate, and to other person, stating
that he has been assaulted by Kaushal and one other person. The question was whether
the accused could be convicted only on the basis of this declaration or the declaration
1
AIR 2003 SC 2859: 2003 Cr LJ 3717: 2003 AIR SCW 3587: 2003 (3) Crimes 180: JT 2003 (6)
SC 84: (2003) 6 SCC 443: 2003 (4) SLT 603: (2003) 5 SCALE 438: 2003 SCC (Cri) 1679: 2003
(2) UC 1269
2
AIR 2001 SC 1814
3
MANU/SC/0107/1957 : AIR 1958 SC 22: 1958 Cr LJ 106: 1957 MPC 813: 1958 SCJ 198:
1958 All LJ 91: 1958 Mad LJ (Cri) 100: 1958 Jab LJ 175: 1958 SCC 28: 1958 SCR 552: 1959
SCA 281;
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needed corroboration. There are divergent views of different High Courts in this regard.
According to Calcutta High Court, it is not permissible to accept a declaration in one part
and reject the other part. According to Madras High Court, a dying declaration can be
relied without corroboration, if the court is convinced of its truth, i.e., there is no
suspicion of its credibility.

The Supreme Court, agreeing with Madras High Court, laid down the following
principles:

(1) There is no absolute rule of law that a dying declaration cannot be the sole
basis of conviction unless corroborated.

(2) Each case must be determined on its own facts keeping in view the
circumstance in which the dying declaration was made.

(3) A dying declaration is not a weaker kind of evidence than any other piece of
evidence. It stands on the same footing as any other piece of evidence.

(4) A dying declaration cannot be equated with a confession or evidence of

approver, as it may not come from a tainted source. If it is made by the person
whose antecedents are as doubtful as in the other cases that may be a ground for
looking upon it with suspicion.

(5) Necessity of corroboration arises not from any inherent weakness of a dying
declaration as a piece of evidence, but from the fact the Court in a particular case
came to the conclusion that a particular declaration is not free from infirmities.

(6) To test the reliability of a dying declaration, the Court has to keep in view the
circumstances like the opportunity of the dying man's observation, e.g., whether
there was sufficient light if the crime was committed at night; whether the
capacity of the declarant was not impaired at the time of the statement; that the
statement has been consistent throughout if he had several opportunities for
making a dying declaration; and that the statement was at the earliest opportunity
and was not the result of tutoring by the interested parties.

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(7) A dying declaration recorded by a competent Magistrate in a proper manner in

the form of questions and answers, and in the words of the maker as far as
practicable stands on much higher footing than a dying declaration which depends
upon oral testimony which may suffer from all the infirmities of human memory
and character.

(8) If the Court, after taking everything into consideration, is convinced that the
statement is true, it is its duty to convict, notwithstanding that there is no
corroboration in the true sense. The Court must, of course, be fully convinced of
the truth of the statement, and naturally, it could not be fully convinced if there
was anything in the surrounding circumstances to raise suspicion as to its
credibility. Thus, a true and voluntary declaration needs no corroboration.

In the present case too, the victim gave the dying declaration in a sufficient short span wherein
he could not have fabricated with the facts and was also not in a state to mislead the hon’ble
court. Also, it was the daytime when the incident took place and the blow hurled upon him was
given by his son-in-law himself. Thereby, no question arises as to the identification of the
accused. There is no reason for not trusting the declaration given by the deceased as he was a
man of honor and has no disturbing or criminal background.

In Laxman v. State of Maharashtra4 ,the conviction of the accused-appellant is based

upon the dying declaration of the deceased which was recorded by the Judicial
Magistrate. The learned Sessions Judge as well as the High Court held the dying
declaration made by the deceased to be truthful, voluntary and trustworthy. The
Magistrate in his evidence had stated that he had contacted the patient through the
Medical Officer on duty and after putting some questions to the patient to find out
whether she was able to make the statement; whether she was set on fire; whether she
was conscious and able to make the statement and on being satisfied he recorded the
statement of the deceased. There was a certificate of the doctor which indicates that the
patient was conscious. The High Court on consideration of the evidence of the Magistrate
4
MANU/SC/0707/2002 : AIR 2002 SC 2973: 2002 Cr LJ 4095: 2002 AIR SCW 3479: 2002
(4) Crimes 42: MANU/SC/0707/2002 : (2002) 6 SCC 710: 2002 (4) SCJ 52: 2002 (5) SLT
49: (2002) 6 SCALE 135: JT 2002 (6) SC 313: 2002 (5) Supreme 557: 2002 (2) UJ (SC)
1363

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as well as on the certificate of the doctor on the dying declaration recorded by the
Magistrate together with other circumstances on record came to the conclusion that the
deceased Chandrakala was physically and mentally fit and as such the dying declaration
can be relied upon.

The Supreme Court held that, there is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and when such statement is recorded by a Magistrate
there is no specified statutory form for such recording. Consequently, what evidentiary
value or weight has to be attached to such statement necessarily depends on the facts and
circumstances of each particular case. What is essentially required is that the person who
records a dying declaration must be satisfied that the deceased was in a fit state of mind.
Where it is proved by the testimony of the Magistrate that the declarant was fit to make
the statement even without examination by the doctor the declaration can be acted upon,
provided the Court ultimately holds the same to be voluntary and truthful. A certification
by the doctor is essentially a rule of caution and therefore the voluntary and truthful
nature of the declaration can be established otherwise.

2. Whether the act should be considered as an act of Murder?

Act of murder has been defined in Section 300 of Indian Penal code,1860.

300. Murder—Except in the cases hereinafter excepted,

culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, or—

(Secondly) —If it is done with the intention of causing such

bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing bodily

injury to any person and the bodily injury intended to be in-

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flicted is sufficient in the ordinary course of nature to

cause death, or—

(Fourthly) —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.

The Actus Reus in this case is the fatal blow given by the accused that is Rajnesh Kumar
with the stick, which he used to kill the deceased. To prove the case of Murder under
section 302, the requirements are to prove the death of the victim, intention to cause
death or intention to cause such bodily injury as likely to cause death of the victim or the
knowledge of the accused that is likely to cause the death of the victim, Actus Reus that
caused death and no justification for the death.

 The death of the Victim has been clearly been caused by the fatal blow on the
appendix which has proved to be the final cause of death. Moreover, it has been
proved by the dying declaration that the blow has been caused by the blow on the
appendix area of the victim.

 The intention along with the knowledge has been proved by the Dying declaration
alone that the accused had a clear knowledge that the victim was suffering from
appendicitis and the blow has been made knowing this fact only as otherwise if
the intention was not to kill, the blown could have been on a different part of the
body like legs, etc. But here the intention was very much clear as the accused has
aimed perfectly on the spot. Moreover, it is evident that the accused has come
prepared with the thought to kill the victim from home itself as the circumstances
proves that he left his home in anger and only to execute the Victim.

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 Actus Reus has been proved by the statement of the witness that has been
summoned by the hon’ble High court through the medium of affidavit. In Anil
Phukan v. State of Assam5, it was held that conviction can be based on the
testimony of a single eyewitness provided his testimony is found reliable and
supported by evidence. The witness of the whole act is the owner of the shop who
was present that whole time at the shop when the incident has taken place. The
witness has clearly mentioned that the accused that is Rajesh entered the shop and
started the quarrel and soon after he took a stick and landed a blow on the lower
abdominal area of the Victim soon after which the victim made the dying
declaration and died. The witness present also approved and validate the dying
declaration made by the victim at the time of the incident.

 There is no legal justification for the act done by the accused as the act done by
him does not fall under any of the exceptions like self defense or the grave and
sudden provocation as the accused has left his home with this clear intention to
kill the victim.

In P.V. Radhakrishna v. State of Karnataka,. Accused-appellant allegedly committed suicide was

found guilty of offence punishable under section 302, Indian Penal Code, 1860 ('IPC'); and
sentenced to undergo imprisonment for life and a fine of Rs. 1,000 with default stipulation of one
month imprisonment by Sessions Judge, Bangalore. The appeal before the High Court of
Karnataka having yielded no success this appeal has been filed.

The Supreme Court observed that: "This is a case where the basis of conviction of the accused is
the dying declaration. The situation in which a person is on death bed is so solemn and serene
when he is dying that the grave position in which he is placed, is the reason in law to accept
veracity of his statement, it is for this reason the requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of
justice because the victim being generally the only eye-witness in a serious crime, the exclusion
of the statement would leave the Court without a scrap of evidence. Though a dying declaration

5
Supreme court, 1993
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is entitled to great weight, it is worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth as an obligation of oath could be.
This is the reason the Court also insists that the dying declaration should be of such a nature as to
inspire full confidence of the Court in its correctness. The Court has to be on guard that the
statement of deceased was not as a result of either tutoring, or prompting or a product of
imagination. The Court must be further satisfied that the deceased was in a fit state of mind after
a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the
declaration was true and voluntary, undoubtedly, it can base its conviction without any further
corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence.

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PRAYER

IT IS HEREBY MOST HUMBLY PRAYED BEFORE THE HON’BLE HIGH COURT OF PURAV PRADESH
THAT, IN THE LIGHT OF FACTS MENTIONED, ISSUES RAISED, ARGUMENTS ADVANCED, AND

AUTHORITIES CITED, THE HON’BLE COURT MAY BE PLEASED TO ADJUDICATE AND DECLARE

THAT:

 A DECREE OF DISMISSING THE APPEAL AND UPHOLD THE DECISION MADE BY THE TRIAL

COURT ALONG WITH RELIEF TO THE FAMILY OF THE DECEASED THAT HAS SUFFERED

IRREVERSIBLE LOSS DUE TO THE ACT COMMITTED BY THE ACCUSED, WHICH MAY BE

MONETARY IN NATURE OR THROUGH MEDIUM OF THE EMPLOYMENT.

OR

 ANY OTHER RELIEF THAT THE HON’BLE COURT MAY BE PLEASED TO GRANT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is humbly submitted.

Sd/-

~COUNSELS ON BEHALF OF THE

APPELLANT~

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ISSUES RAISED
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