TEAM CODE: 21BLL1382

IN THE SESSIONS COURT OF MUMBAI, MAHARASHTRA

CASE NO. 05

IN THE MATTER OF

STATE OF MAHARASHTRA…………………………………. PETITIONER

VERSUS

DR. PETER SAHU…………………………………………..…. RESPONDENT

UILS

CHANDIGARH UNIVERSITY, MOHALI

MEMORIAL ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................................II

LIST OF ABBREVIATIONS...............................................................................................III

INDEX OF AUTHORITIES.................................................................................................IV

STATEMENT OF JURISDICTION.....................................................................................V

STATEMENT OF FACTS....................................................................................................VI

QUESTION OF LAW..........................................................................................................VII

SUMMARY OF ARGUMENTS.......................................................................................VIII

ARGUMENTS

ADVANCED..................................................................................................IY

PRAYER..............................................................................................................................XVI
 LIST OF ABBREVIATIONS

P Paragraph
& And

AIR All India Reporter

Anr. Another

Cr.PC Code of Criminal Procedure

Ed. Edition

HC High Court

Hon’ble Honorable

i.e. That is

Art. Article

LJ Law Journal

Ltd. Limited

p. Page No.

Pvt. Private

RTI Right to Information

IPC Indian Penal Code

§§. Section of sections

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

v. Versus
 INDEX OF AUTHORITY
CASES REFFERED

NO. CASES

1. Anvar P.V. vs. P.K. Baheer, (2014) 10 SCC 473.

2. Ram Singh & Ors vs Col. Ram Singh, AIR 1986 SC 3
3. R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106
4. R Venkatesan vs. State, 1980 Cr LJ 41
5. MahabirPdVerma v SurinderKaur, AIR 1982 SC 1043
6. K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
7. R.M. Malkhani vs. State of Maharashtra, (1973) 1 SCC 471.
8. Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 4 SC 359.
9. Sininga Hansda v State Of Orissa, Criminal Appeal No. 29 of 2004
10. Babul Baruah v State of Assam, Criminal Appeal No. 114(J) 2005
11. R Rujendra Nair v State of Kerala,(1998) Cr LJ 60 (SC).
12. Mavjibhai Ramjibhai Taviyad v State Of Gujarat, Criminal Appeal No.1156 of
2009
13. R. Rajendran Nair v. State of Kerala, AIR 1998 SC 1.
14. Kailash v. State of M.P, (2006) 11 SCC 420.
15. Ramakant Rai v Madan Rai, Cr LJ 2004 SC 36.
16. Jabbar v. State of U.P., 1966 All Cr R 150.
17. Dinesh Dalmia vs. State, 2006 CrLJ 2401 (Madras).
 C
O
CONSTITUTIONS:
N
S
The Constitution
T of India, 1950.
I
T
U
STATUTES:
T
1. I The Indian Evidence Act, 1857
2. OThe Information Technology Act, 2000
N
S
BOOKS : REFERRED:
1. CModi, Medical Jurisprudence and Toxicology 213 (16th ed., 1967).
O
N
S
MATERIALS
T REFERRED FROM INTERNET
I
ONLINET DATABASE:
U
1. TSCC ONLINE
I
O
N
S
:
C
O
N
S
T
I
T
U
T
I
O
N
 STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 26 read with section
28 read with Section 177 read with Section 209 of the Code of Criminal Procedure, 1973.

S. 26. Courts by which offences are triable:

Subject to the other provisions of this Code,- (a) Any offence under the Indian Penal Code
(45 of 1860) may be tried by-

(i) …

(ii) The Court of Session

(iii)…

S. 28. Sentences which High Courts and Sessions Judges may pass:
(1) …

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law;
but any sentence of death passed by any such Judge shall be subject to confirmation by the
High court

(3) …

S.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:

S.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

(I)
Peter Hemsworth was a well known mathematician from Cambridge, who had taught in
the UK and the US for many years. He was around the age of 40 years. He moved to India
in 2008 and joined Advanced Centre for Mathematics (AMC) in Mumbai as an Associate
Professor. He was also offered the post of guiding Ph.D. students. Mrs. Alexa was born in
1986 in Bombay to Mr. James Courtney and Mrs. Maithili Raghuraman in Bombay, India.
After completing her schooling and college in Mumbai she went to Oxford to pursue her
masters in mathematics.

(II)

Upon completion she returned to India and enrolled herself as a doctoral student in ACM,
where was her Peter Hemsworth Ph.D guide. They both fell in love there and got married
in 2013. Alexa got a job in ACM too upon completion of her Ph.D. in 2016. Everything
was going fine and they would complement each other at work. Mr.Rajesh Gujral and his
wife Mrs. Suneet Gujral were their closest friends and they would all meet on a regular
basis. Mr. Rajesh Gujral was an IT Wizard and a brilliant professional who could hack into
a computer or even a home system remotely and take control of it.

(III)

Slowly, the amount of work that started increasing as they both got research assignments.
Therefore, both got busy in their professional lives which would lead to some small
misunderstandings sometimes. In December 2019, Alexa got pregnant and left her job.
Peter was not very sure about taking the responsibility of a child initially as he was not
ready to start a new family and was very busy. Alexa got angry with this and left the house.
Later on she started living with the Gujrals.

(IV)

On 5thMay, 2020 Peter called Alexa to come to his house as he wanted to sort out all the
problems among themselves and start living happily. On 11thMay, 2020 Alexa along with
Rajesh went to meet Peter. Peter’s parents also wanted to meet Alexa but due to some
medical reasons they could not come. After eating dinner, Rajesh left but Alexa stayed
back in Peter’s place as she was really tired and it was late in the night too.
 (V)

The next morning on 12thMay 2020, apparently Rajesh went to Peter’s house to pick up
Alexa. Rajesh was surprised when no one answered the door bell. After ringing the bell
for about 5-6 minutes he called Peter, who said he had left for work at 7:00 am itself. Peter
said that Alexa was not answering his calls too. Rajesh then tried to push the door. Upon
getting inside, he started searching the house. To his horror he saw Alexa hanging in the
bedroom from the fan. He called Peter and the police right away.

(VI)

The Police made an Inquest Report and sent the body for the post mortem examination.
They took whatever evidence they could find and the Alexa (electronic device) was also
taken as evidence. There was another Alexa electronic device which was taken from the
crime scene. There was another Alexa mini music player lying on Peter’s bedside, which
was not found at the time of the search. The music player starts recording conversations if
the word ‘Alexa’ is spoken twice within its vicinity. During the investigation, Rajesh
confessed to the police that he had stolen the Alexa mini music player lying on the bedside.
When Rajesh was questioned, he failed to give any plausible explanation of how he got
ingress into Peter’s house. Rajesh claimed that he was willing to retrieve the recording in
the Alexa Devices if he is not charged with the offences of theft, trespass or any other
offence under the law. Mr. Peter contends that it would lead to a breach of his privacy and
that Peter was holding those devices to ransom. However, Dr. Peter had given his consent
to a NARCO analysis examination and any other relevant test to be performed, but Rajesh
on the other hand flatly refused.

(VII)

The post mortem (PM) report came two days later on 14th May. According to the PM report,
Alexa died approximately between 4:00 am and 8:00 am on 12thMay 2020. After the PM
report came, Peter was arrested and a case was filed under sections 306, 316 and 325 of the
IPC against Mr. Peter Hemsworth.
 ISSUES RAISED

1. Whether evidence from the Alexa devices is admissible in a Court of Law?

2. Whether evidence stolen from the crime scene is admissible in a court of law?

3. Is it a fit case where the Court should add a charge u/s 302 IPC and try the accused person
. for that charge as well?

4. Whether Dr. Peter can be charged under Section 316, IPC?

5. Whether Dr. Peter and Rajesh can be subjected to NARCO analysis?

 SUMMARY OF ARGUMENTS

[1] THE EVIDENCE FROM THE ELECTRONIC ALEXA DEVICES IS

NOT ADMISSIBLE IN THE COURT OF LAW

The evidence from the electronic Alexa devices is not admissible in the court of law. Mr.
Rajesh had unauthorized access to this evidence and he had stolen these devices. He is an IT
wizard and knows how to tamper with these devices. He had no plausible reasoning as to how
he entered the house and why he stole these devices. These evidences are not certified under
section 65(B) of the evidence act. This evidence being tampered has no form of authenticity
in it. It is not genuine and admitting this evidence would breach Mr.
Peter’s right to privacy.

[2]THE EVIDENCE STOLEN FROM THE CRIME SCENE IS NOT

ADMISSIBLE IN A COURT OF LAW

The evidence stolen from the crime scene is not admissible in a court of law. Illegal evidence
can only be admissible when there is no doubt of tampering and when they are genuine. The
reason for illegal procurement of this evidence must also be proved. This evidence must be
kept in the right custody too. In this case none of these factors have been met and so stolen
evidence of the Alexa devices is not admissible in the court of law.

[3] IT IS NOT A FIT CASE WHERE THE COURT SHOULD ADD A CHARGE U/S
302 IPC AND TRY THE ACCUSED PERSON FOR THAT CHARGE AS WELL.

Murder has two ingredients, viz. actus reus and mens rea. In this case, neither the act nor the
intention is present. The accused and deceased were happily married. It was accused who
wanted to persuade the deceased to continue their family life. Moreover, the accused is not
present in the apartment at the time of deceased death. Therefore, changes u/s 302 cannot be
added.

[4] DR.PETER SHOULDN’T BE CHARGED UNDER SECTION 316 OF IPC

There was no role of the accused in the death of the deceased; hence he cannot be made
liable for causing death of the quick unborn child by act amounting to culpable
homicide.

[5] DR. PETER AND RAJESH SHOULD BE SUBJECTED TO NARCO

ANALYSIS
DR. Peter, who is believed to be innocent has given the consent to undergo the Narco analysis
test and it’s expected that Rajesh should also give his consent for the same.The discovery of
the truth is the essential phenomena of investigation, and all efforts have to be made to find
out the culprit.
 ARGUMENTS ADVANCED

[1] THE EVIDENCE FROM THE ELECTRONIC ALEXA DEVICES IS

NOT ADMISSIBLE IN THE COURT OF LAW
Evidence from the Alexa devices is not admissible in the court of law. The foremost test for
admissibility of evidence is its relevancy and the relevancy can only be proved if the evidence
is authentic. We submit that the evidence in the Alexa decives is not authentic and there is a
high probability of tampering due to unauthorized access and therefore the same can not be
admitted as electronic evidence by this court according to section 65(B)1 of the evidence act.
These Alexa devices are computers 2under the IT Act and form a part of a wider system3 or
network of computers.

1.1The evidence has been tampered with and were not kept in proper custody

To test the authenticity of any electronic audio or voice recording the recording is required to
have a certificate4 under section 65(B) 5of the evidence act. Section 65(B)(2) 6states that the
electronic evidence can not be admissible in the court if there has been unauthorized access
to the data in question. In this case Mr. Rajesh has had unauthorized access to the recordings
and to the original data in the music player and the Alexa electronic device by entering the
house without permission and stealing the music player, therefore violating the test of
integrity for these electronic records as stated in Section 65(B)(2)7 8states that the electronic
evidence can not be admissible in the court if there has been unauthorized access8.

1
Indian Evidence Act,1872, s.65(b)
2
The Information Technology Act,2000, s.2(i)
3
Id. s.2(1).
4
Anvar P.V. vs. P.K. Baheer, (2014)10 SCC 473
5
Indian Evidence Act, 1872, s.65(b)
6
Indian Evidence Act, 1872, s.65(b)
7
Indian Evidence Act, 1872, s.65(b)
8
Indian Evidence Act, 1872, s.65(b)
 In the cases of Ram Singh & Ors vs Col. Ram Singh 9and R.K. Anand v. Registrar, Delhi
High Court 10 the hon’ble court laid down tests for the purpose of admitting voice recorded
statements, which said that if the voice of the speaker was to be identifiable, the recording was
to be authentic, the whole conversation was to be recorded and even the tampering, erasing or
missing of even a microsecond would render the recordings inadmissible and that the recording
device was to be in safe custody placed in anti static bags and the voice had to be clear without
any disturbances.

In the present case the electronic voice recordings have not met any of the tests laid out in the
Ram Singh’s case. The voice recordings were not authentic. The whole conversation could
not have been recorded as the recording time for the music player was not beyond a few
seconds. The Alexa devices can not record an entire conversation continuously and are infact
also designed to detect a false wake word . The court in the above case and in the case of R
Venkatesan vs. State 11rejected the tape recorded conversations, since it was not audible
throughout and was broken at a very crucial stage, had held that even a microsecond of break
in the voice recordings would tender the entire recordings in-admissible. Further the most
problematic factor here was that the recordings were not even in the proper custody which
raises a huge doubt on the prosecution case, especially when Mr. Peter who had stolen the
music player was unable to explain why he took the music player and how he had entered the
house.

The recordings and data in these Alexa devices is not self generated and is only generated
after the detection of the wake word, thereby showing that there is a huge requirement for
human intervention. In such cases the same is open to gross misuse and tampering. The data
further being stored in cloud accounts can be manipulated and hence requires stringent proof
to be admissible as evidence.

Similarly, the court in Ram Singh’s Case 12also held that a tape was relevant only if it was
kept in proper custody after recording and it was important to consider how the recording
came into existence. In that case, the Deputy Commissioner had left the tape with the
stenographer which was enough proof for it to be tampered with.Mr. Rajesh is IT Wizard and
has expert knowledge of how to retrieve the audio recordings as he was willing to retrieve the
conversations from the music player. This proves that there is a high possibility that Rajesh
could have tampered with the evidence at hand.

9
Ram Singh & Ors. v Col. Ram Singh AIR 1986 SC 3
10
R.K. Anand v Registrar Delhi High Court (2009) 8 SCC 106.
11
R Venkatesan v State 1980 CrLJ 41
12
Ram Singh & Ors. V Col. Ram Singh AIR 1986 SC 3
1.2 The voices can neither be identified accurately nor can they be corroborated

We submit that these audio recordings can-not be corroborated 13with since they the
deceased victim is not present in the court of law to testify for those recordings and for
her voice. In her absence the audio recordings can not be accepted as corroborative pieces
of evidence and corroboration along with the voice identification of all the speakers in
these recordings is extremely important and is sina qua non14 for their admissibility.
Further, the process of scientific voice identification by voice spectrography is also not
accurate. With new age technology, there exist even voice mimicry applications which
can record the voice of an individual accurately to the extent of the same frequency
modulation.

We submit that the music player responds whenever Alexa is spoken in its vicinity but has no
knowledge of the speaker. There could be a person speaking or an artificially generated and
mimicked voice of an individual being played in the background, both of which the
musicplayer would not be able to differentiate
between. Further these artificial intelligence devices can not accurately understand native
languages and could misquote them in their recordings.

The right to a free and fair trial is a fundamental right of an accused and would be violated if
the present evidence is admitted. In light of the above arguments, we humbly submit that the
evidence from these Alexa devices is not admissible in the court of law.

1.3The recordings stored in these Alexa devices are neither authentic nor certified

The Alexa devices are digital devices which do not have a local, internal storage capacity and
transfer all the recordings into a cloud account. Therefore, these recordings can not be
replayed in the court by only producing the Alexa devices by itself and hence are not primary
evidence. The cloud accounts can be easily tampered with and the data stored in these servers
can be destroyed or altered with. This data is stored in the form of binary language and can
be easily altered, especially by IT experts. Since these are stored in external computers, a
transcript of these recordings can only be produced with a section 65(B) certificate. Such
transcripts stored in the cloud account are a computer output. Further the certificate does not
provide for the truth of these contents. Therefore, in the light of the above arguments the
evidence in the devices can not be held admissible in the court of law.

13
MahabirPdVerma v Surinder Kaur, AIR 1982 SC 1043
14
Nirmala v Ashu Ram, 2000 CrLJ 2001 (Raj).
 It is a primary principle of law that all the documents, evidence and their certifications
must be provided to the prosecution at the time of filing of the charge sheet and not
providing the same casts a huge doubt on the case of the prosecution.

The court in the case of ArjunKhotkar15 making a difference between analogous and digital
devices had stated that a high amount of caution is required to be taken in cases of electronic
evidence in digital devices and such evidence could only be admitted only when it was proved
beyond reasonable doubt that they were tamper proof. In this case the prosecution has not
been able to prove the same beyond reasonable doubt. The court opined that there was a
requirement for amendments to the laws governing electronic evidence. Hence, it is humbly
submitted that electronic evidence recorded in these devices is not admissible in the court.

1.4It is a violation of Peter’s Fundamental Rights

We submit that admitting these recordings is an invasion of the right to privacy of the accused
guaranteed under article 21 16of the constitution especially since all the intimate conversations
between the Mr. Peter and his wife would be revealed. The conversations between a husband
and wife are bound by privilege under section 12217 of the Evidence Act and obtaining these
conversations would be a breach of this privilege. If these Alexa devices are admitted as
evidence, the conversations of the accused with his wife would be open to public and would
lead to loss of the privacy of Mrs. Alexa too further affecting the right to dignity of the
deceased and the accused.

Admitting a piece of evidence which is being held ransom and could have been tampered
with by Mr. Rajesh whose role himself is questionable in this case, would cause grave
prejudice to the accused. Further admitting and perusing all the recordings in the Alexa
devices without them being genuine and instead fabricated, making the statements in the
recordings involuntary, planted, false and used against the wishes of the accused would be a
gross violation of his fundamental right to a free and fair trial.

15
ArjunPanditraoKhotkar v KailashKushanraoGorantyal And Others, 2020
16
INDIA CONST. art.21
17
Indian Evidence Act,1872, s.122
 The Hon’ble Supreme Court in the case of Selvi vs. State of Karnataka 18had outlawed the
famous narco-analysis and lie detector test stating that the courts must recognise the
importance of personal autonomy in aspects such as the choice between remaining silent and
speaking, especially in circumstances where the person faces exposure to criminal charges or
penalties. The court further upholding the Selvi case in the K. S. Puttuswamy Case 19 held
that right to privacy, including the right to remain silent, control the collection and use of
one’s own data and take intimate decisions about one-self was a fundamental right of an
accused. Hence, the coercion using one’s own complete data against one’s own wish would
by itself infringe on the right to privacy of the accused.

[2] THE EVIDENCE STOLEN FROM THE CRIME SCENE IS NOT

ADMISSIBLE IN A COURT OF LAW
2.1Evidence from stolen devices is not admissible in the court of law Stolen evidences
are not admissible in the court as the intent of the legislature by providing certain statutory
procedures and principles was in order to make sure the trial is fair and just and to keep a
check on the activities of the various parties involved in a certain case.

Non-compliance to statutory provisions by the prosecution cast a huge doubt on the case of
the prosecution and without a reasonable cause the court can not accept such evidence.

The rules of admissibility of evidence as stated in section 5, 6 and 7 of the evidence act states
that the evidence must be relevant and must be genuine. Stealing any evidence would amount
violation of the genuineness of the evidence. Further, in the case of R.M. Malkhani 20the
court has stated that illegally obtained evidence must be treated with caution and plausible
reasoning must be given for illegally procuring the same, in the absence of which such
evidence can not be admissible and would case huge prejudice to the accused of allowed. The
court has clearly stated that a illegally obtained evidence would not be admitted if it causes
prejudice to the accused.

18
Selvi vs State of Karnataka AIR 1997 SC 568.
19
K.S. Puttaswamy v . Union of India, (2017) 10 SCC 1
20
R.M. Malkhani v State of Maharashtra, (1973) 1 SCC 471
2.2 The alexa music player is not admissible as evidence in the court of law

Firstly, to be admitted as primary electronic evidence the evidence must have been in the
rightful custody and possession of the owner. In this present case, the music player was not
in the rightful possession of Mr. Peter at the time of search. The recordings in the music player
would therefore not be the original statements of the accused and the deceased as there are
high chances of the evidence being tampered with. Hence, it is not primary evidence under
section 62 21of the Evidence Act. A similar opinion was observed by the court in the case of
ArjunPanditraoKhotkar vs. KailashKushanraoGoshal 22that an original or primary piece
of electronic evidence can only be produced by the owner of the device and has to testify in
court that it was owned and operated only by him.

2.3 An adverse presumption can be drawn against a person who stole the evidence

Section 114 of the Evidence Act states that,the Court may presume the existence of any fact
which it thinks likely to have happened, regard being had to the common course of natural
events, in their relation to the facts of the particular case and therefore draw an adverse
presumption.In the case of Kundu Mishra v. State of Madhya Pradesh23, the court held
that A court may legitimately draw a presumption under section 114 of Evidence Act, not
only of the fact that the person in whose possession the stolen articles were found committed
the robbery but also that he committed the murder. In this case the fact that Mr. Rajesh who
stole the Alexa device but did not have any reasoning for doing so, further proves guilt on his
part.

[3] IT IS NOT A FIT CASE WHERE THE COURT SHOULD ADD A CHARGE
U/S 302 IPC AND TRY THE ACCUSED PERSON FOR THAT CHARGE AS
WELL.
It is humbly contented before this Hon’ble Court that the court cannot add a charge U/S
302 of the Indian Penal Code, 1860 (herein after referred to as the ‘IPC’) and try Peter for
that charge as well. In the matter at hand, the accused has not committed murder and there
is no such evidence establishing that the accused has committed murder. Hence, the
Hon’ble Court shouldn’t add a charge U/S 302 IPC.
According to Modi's text book of Medical Jurisprudence and Toxicology 24as to whether the
death can be caused by hanging, it has been mentioned that one can safely say that death was
due to hanging, if, in addition to the cord mark, there was dribbling of saliva from the angle
of mouth, ecchymoses and slight abrasions around the ligature-mark, laceration of the intima
of the carotid arteries with extravasation of blood within their walls and the ‘post-mortem
signs of asphyxia, besides if there are no evidence of a struggle, scratches and nail marks,

21
Indian Evidence Act, 1872, s.62
22
ArjunPanditraoKhotkar v KailashKushanraoGorantyal And Others, 2020 SC 571
23
Mukund alias Kundu Mishra v State of MP, (1997) 4 SC 359
24
Modi Medical Jurisprudence and Toxicology 212 (16th ed., 1967)
 fatal injuries or poisoning25. And the instant case completely stands on the above basis for
suicidal hanging. The post mortem report says that the cause of death is asphyxia due to
hanging which ruled out the possibility of homicidal hanging.

Of the 32 cases of hanging that came under Modi's observation during a period of over six
years, 30 were suicidal. Circumstantial evidence also has an important bearing. Homicidal
hanging, though rare, has been recorded that usually, more than one person is involved in the
act unless the victim is a child or very weak and feeble, or is rendered unconscious by some
intoxicating or narcotic drug. In a case, where resistance has been offered, marks of violence
on the body and marks of a struggle or footprints of several persons at or near the place of
occurrence are likely to be found26. Since there are no marks of struggle or violence found on
the body of the deceased, the court cannot add charges U/S 302 IPC on accused without any
reasonable assumption of murder.

3.1 The accused does not have mens rea and motive

In the instant case, Peter has no motive to kill his wife. Though there are some discrepancies
between the couple, it is accused who wants to sort out the issues and continue their life ahead.
It is clear that the accused does not have mens rea, which is an essential element of crime.
The accused asking his wife to abort the child cannot presumed as the motive. The accused
and the deceased married out of love affair and there is no reason for accused to kill his wife.

In the case Babul Baruah v State, it has been submitted that there is no direct evidence on
record, to substantiate the charge that the appellant caused the death of the deceased. It is
submitted that the learned Sessions Judge recorded the conviction under section 302 IPC,
without sufficient evidence. It is also submitted that the appellant, who married the deceased
out of love affairs, had no reason to cause the death of his wife and that the conviction has
been based only on surmise and presumption.27

In the present case, there are no evidences which can establish that the offence of murder is
committed. So, the whole case is based on circumstantial evidences. So, in order to establish
the circumstantial evidences, the motives plays a important role. Here in the case, the accused
has no such motive to kill his wife.

3.2 Necessity to exclude suicide and accident before homicide could be established
There may be cases of homicide by suffocation or some other act not involving external
injuries. The cause of death in such cases may be baffling but post-mortem examination
generally throws a flood of light over the actual cause of death. But, whatever the immediate
cause of death from a purely medical point of view, the real medico-legal question of
importance is whether death was homicidal, suicidal or accidental. Before a case of homicide
can be made out, suicide and accident must be ruled out. The description of the injuries by
the medical man with the details of their nature and position and the force necessary to cause
them may well rule out in many a case the probability, if not the possibility, of both suicide
and accident.In this case, to establish that the said act is homicidal hanging, it is necessary to
rule out the possibility of suicide and accident. Whereas, the prosecution failed to rule out the

25
Sininga Hansda v State of Orissa, Criminal Appeal No. 29 of 2004
26
Id.
27
Babul Baruah v State of Assam, Criminal Appeal No. 114(J) 2005
 said probabilities as the medical evidences and circumstantial evidences are inconclusive and
did not rule out the probability of suicide hanging.
3.2.1 EVIDENCE OF “LAST SEEN TOGETHER”
The theory of being last seen together is one where two persons are seen together alive and
after an interval of time, one of them is found alive and the other dead 28.The circumstance
that the accused and the deceased were last seen together alone is not sufficient to bring home
the offence to the accused, particularly when there has been no motive proved which could
have goaded the accused to kill the deceased.29The theory of being last seen together can be
considered a link in the chain when the case rests on circumstantial evidence. It is a well
settled principle that merely because two persons are found together at a particular time and
sometimes thereafter one of them was found unnaturally dead, the inevitable conclusion is
not that the other is the author of the crime.

3.2.2 BENEFIT OF DOUBT

Where the allegations against the accused were that accused assaulted deceased wife till she
became unconscious and thereafter left the house, he came back and hanged her, the evidence
on record indicated that after assaulting the deceased as result of which she became
unconscious the accused left the house along with his daughter and came back home
sometime later. The version of the accused was that he untied the knot of the saree which she
used as the ligature and brought her down. In the absence of any evidence to prove that
deceased was alive when the accused came back, his version cannot be rejected altogether
entitling him to acquittal30.In the same way, there is no presence of Peter in the house at the
time of death of Alexa . The accused left to the office and by the fact that the deceased is last
seen together with accused cannot make him liable under Sec 302 IPC. So, without any
evidences establishing the fact that the accused was last seen together with deceased, a benefit
of doubt should be given to accused.

The medical evidence is not consistent. There is no clear opinion expressed by the doctors
examined that the death was only because of strangulation by a human act. The medical
evidence indicated likelihood of death by hanging as an act of suicide. Therefore, benefit of
doubt should be given to the accused31.

3.3 Medical evidence are inconclusive

Apex Court in the case of R. Rajendran Nair v. State of Kerala32 held that circumstantial
evidence on the allegation that accused assaulted deceased wife as a result of which she
became unconscious. Thereafter he left his house with his daughter. Presence of the accused
in his house when the hanging took place was not proved by the prosecution. Defence version
that when he came back, he found her hanging. No evidence also to support the story of
electrocution falsely circulated by the accused. Circumstances not pointed out towards the
guilty of the accused. Therefore, the conviction of the accused was set aside. In the said
decision, it was held that for an individual to hang a living person (who would certainly make
all possible efforts to extricate himself) after lifting him to a certain height seems to be rather
improbable.

28
Rajan v State of Kerala, (2000) CrLJ 3531(Ker).
29
Virendar Kumar Yadav vs Mukhtiar Yadav alias Mukho Yadav alias Raju vs State (1996) CrLJ 231 (Del.)
30
R Rujendra Nair v State of Kerala, (1998) CrLJ 60 (SC).
31
Mavjibhai Ramjibhai Taviyad v State of Gujarat, Criminal Appeal No. 1156 of 2009
32
R Rujendra Nair v State of Kerala, (1998) CrLJ 60 (SC).
 3.3.1 MEDICAL EVIDENCE IN FIXING THE TIME OF DEATH

It is of the highest importance from a medico-legal point of view that the time of death should
be determined with a fair amount of certainty. The points that help to ascertain the time of
death vary so much in each individual case, that, according to Modi, only an approximate
time of death can be given.

The degree of digestion of the stomach contents is a circumstance usually employed to ascertain
the time of death. But this has been categorically pronounced to be an unreliable test, much
depending upon the nature of the food, and the power of digestibility in general as well as during
the hours just preceding death in particular. It is also said in text-books that the process of
digestion in normal, healthy persons may continue for a time after death. Similarly, one can give
an opinion that the death occurred some-time after he had got up in the morning if the large
intestine was found empty of faecal matter." 33

The Bombay High Court has held that the post-mortem report or the medical certificate is not
substantive evidence. It is only a previous statement based on examination of the patient. 34

In the light of all aforesaid arguments, the accused humbly submits that there exists reasonable
doubt and hence he should not be tried for the alleged murder. A reasonable doubt must not be
imaginary, trivial or merely possible doubt; but a fair doubt based upon reason and common sense
arising out of the evidence of the case. 35

Therefore, it is humbly submitted before this Hon’ble Court that the Court should not add a
charge U/S 302 IPC and the accused cannot be tried under that charges.

[4] Whether Dr. Peter can be charged under Section 316, IPC?

It is humbly contended before this Hon’ble Court that the court cannot add a charge under
section 316 of IPC. Dr. Peter is not responsible for the death of the victim, when he is not
responsible for her death, he can’t be made liable under under section 316 of IPC

4.1. DR. PETER HAS NOT CAUSED DEATH OF THE QUICK UNBORN CHILD
BY THE ACT AMOUNTING TO CULPABALE HOMICIDE

Whoever does any act under such circumstances, that if he thereby caused death he would be
guilty of culpable homicide, and does by such act cause the death of a quick unborn child,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.

Section 316 I.P.C. can only apply if the action resulting in a death was capable of amounting
to culpable homicide36, But here in this case DR. Peter has no motive to kill his wife or to

33 Modi Medical Jurisprudence and Toxicology 144 (12th ed., 1940)

34
Kailash v State of M.P. (2006)11 SCC 420
35
Ramakant Rai v Madan Rai, CrLJ 2004 SC 36
36
Jabbar v State of U.P. 1966 All CrR 150
 cause injury to her. Though there are some descripinces between the couple Dr. Peter always
wanted to sort out the issues.

In order to attract this section, the action must be such that it results in the death of a “quick
unborn child” instead of the death of the mother which could have been caused by the action.
In a case37 the appealents when charges of 316 are made against them, the court acquitted
them as the prosecution has failed to prove that the appellants have done any act which
resulted in the death of the quick unborn child.

It is submitted that there was no prima facie evidence to show injuries on the deceased body
are caused by the accused. Assuming that there are some injuries on the deceased body, the
prosecution failed to prove that the injuries are done by the accused. Therefore, there exists a
reasonable doubt which paves a way for acquittal of the accused

5. Whether Dr. Peter and Rajesh can be subjected to NARCO analysis?

It is humbly submitted that Dr. Peter and Rajesh can be subjected to Narco analysis. Under
the influence of the drug, the subject talks freely and is purportedly deprived of his self-
control and will- power to manipulate his answers.The discovery of the truth is the essential
phenomena of investigation, and all efforts have to be made to find out the real culprit,
because, a guilty person should not be allowed to escape from the liability of the guilt.

Krishna Iyyer J. Remarked, “the courts self-criminate themselves if they keep the gates partly
open for culprit to flee the justice under the guise of interpretative enlargement of Rgolden
rule of criminal jurisprudence” 38

5.1. Admissibility of the Result of Narcoanalysis,

Here Dr. Peter has already given his consent to undergo the NARCO analysis test. As
Rajesh is unwilling to give his consent to undergo the NARCO analysis test he should be
persuaded to undergo the test. In Selvi case, Apex Court emphasized and clarified that
the bar of Article 20(3) can be invoked only when the statements are likely to lead to
incrimination by themselves or "furnish a link in the chain of evidence" needed to do so.
A situation where a testimonial response is used for comparison with facts already
known to the investigators is inherently different from a situation where a testimonial
response helps the investigators to subsequently discover fresh facts or materials that

37
Pawan Kumar and others v State of Punjab 2013 All CrR 25
38
Dinesh Dalmia v State,2006 CrLJ 2401 (Madras).
could be relevant to the ongoing investigation."

The court opined that the compulsory administration of the Polygraph, Narcoanalysis and
BEAP test technique violates the ‘right against self- incrimination’. This is because the
underlying rationale of the said right is to ensure the reliability as well as voluntariness of
statements that are admitted as evidence. Article 20(3) when read with Section 161(2) of the
CrPC, it protects accused persons, suspects as well as witnesses who are examined during an
investigation. The test results cannot be admitted in evidence if they have been obtained
through the use of compulsion. Article 20(3) protects an individual's choice
between speaking and remaining silent, irrespective of whether the subsequent testimony
proves to be inculpatory or exculpatory.

In NatvarlalAmarshibhaiDevaniVs. State of Gujarat and Ors39, the Gujarat High Court relying
on Selvi case, opined that apart from the apparent distinction between evidence of a
testimonial and physical nature some forms of testimonial acts lie outside the scope of Article
20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and
handwriting samples are testimonial in nature, they are not incriminating by themselves if
they are used for the purpose of International Journal of Law 88 identification or
corroboration with facts or materials that the investigators are already acquainted with. The
relevant consideration for extending the protection of Article 20(3) is whether the materials
are likely to lead to incrimination by themselves or "furnish a link in the chain of evidence"
which could lead to the same result. Hence, reliance on the contents of compelled testimony
comes within the prohibition of Article 20(3) but its use for the purpose of identification or
corroboration with facts already known to the investigators is not barred.

5.2 DR. Peter AND RAJESH CAN BE SUBJECTED TO NARCO ANALYSIS

It is submitted that both DR. Peter and Rajesh are to be subjected to Narco analysis as, DR.
Peter has given his consent to undergo the test, it is also expected as such from Rajesh as well
40
to undergo the said test. The three-Judge Bench, in Selvi v. State of Karnataka , finally
framed a binding guideline and held that no individual should be forcibly subjected to any of
the Polygraph/ Narco Analysis / BEAP test techniques, whether in the context of investigation
in criminal cases or otherwise.

The court left the scope for the voluntary administration of Polygraph, Narcoanalysis and
BEAP test techniques in the context of criminal justice, provided that certain safeguards are

39
Selvi v State of Karnataka AIR 2010 SC 1974
40
Ibid.
 in place. However, such information or material that is subsequently discovered with the help
of voluntary administered test results can be admitted, in accordance with Section
2741.Therefore in light of the above arguments, it is humbly pleaded that DR.Peter, who is
belived to be innocent has given the consent to undergo the Narco analysis test and it’s
expected that Rajesh should also give his consent for the same. It is also pleaded that the court
should grant further investigation and requests the investigating team to strictly adhere to the
guidelines provided by NHRC while conducting NARCO analysis.

41
Indian Evidence Act
 PRAYER

Wherefore in the light of issues raised, for

argument advanced and authorities cited may
this Hon’ble Court be pleased to :

Declare the acquittal of respondent.

AND/ OR
Pass any order, as deems fit, in light of justice, equity and good conscience.
All of which is most humbly and respectfully submitted.

For The Act Of Kindness,Petitioner Shall Duty-Bound Forever Pray.

Date:

Place: Counsel for the Respondent