TEAM CODE: TC- 18

ARMY INSTITUTE OF LAW

NATIONAL MOOT COURT COMPETITION

CHECKMATE, 2020

Before

HON’BLE COURT OF SESSIONS, MUMBAI, MAHARASHTRA

In the matter of

S.C. No. of 2020

STATE OF MAHARASHTRA PROSECUTION

Versus

DR. PETER HEMSWORTH DEFENCE

-MEMORIAL ON BEHALF OF THE PROSECUTION-

 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

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........................................................................................................VIII

SUMMARY OF ARGUMENTS..........................................................................................IX

ARGUMENTS ADVANCED..................................................................................................1

PRAYER...............................................................................................................................XX

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

LIST OF ABBREVIATIONS

S.NO ABBREVIATION FULL FORM

.
1. ¶ Paragraph
2. & And
3. AIR All India Reporter
4. Anr. Another
5. Cr.PC Code of Criminal Procedure
6. Ed. Edition
7. HC High Court
8. Hon’ble Honorable
9. i.e. That is
10. Art. Article
11. LJ Law Journal
12. Ltd. Limited
14. p. Page No.
15. Pvt. Private
16. RTI Right to Information
17. IPC Indian Penal Code
18. §§. Section of sections
19. SC Supreme Court
20. SCC Supreme Court Cases
21. UOI Union of India
22. v. Versus

INDEX OF AUTHORITIES
CASES REFERRED:
1) Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17.
2) Yusufalli Esmail Nagree v. The State Of Maharashtra, 1967 SCR (3) 720.
3) R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.
4) Jagjit Singh v. State Of Haryana, (2006) 11 SCC 1.

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5) Tukaram S. Dhigole v. Manikrao Shivaji Kokate, AIR 2010 SC 965.

6) N. Sri Rama Reddi & Ors v. V.V. Giri, (1970)2 SCC 340.
7) Dial Singh Narain Singh v. Rajapal Jagan Nath, 1969 Cr LJ 1422.
8) Ritesh Sinha v. State of Uttar Pradesh, 2019 SC 956.
9) Raman Pillai v. Kumaran Parameswaran, AIR 2002 Ker 133.
10) Vikram Singh v State of Punjab, AIR 2017 SC 3227
11) K. Ramajayam @ Appu v. The Inspector of Police, 2016 (2) CTC 135.
12) Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
13) Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal And Others, 2020 SCC ONLINE
SC 571.
14) Justice K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1.
15) Sahara India Real Estate Corporation Limited & Ors. v. Securities and Exchange Board
of India & Anr, (2012) 10 SCC 603.
16) Pushpadevi M Jatia v. ML Wadhawan, AIR 1987 SC 1748.
17) Barindra Kumar Ghose v. Emperor, ILR (1910) 37 Cal 467.
18) Pooran Mal v. Director of Inspection (Investigation) of Income-Tax, New Delhi, AIR
1974 SC 348.
19) Yashwanth Sinha & Ors. vs. Central Bureau of Investigation & Ors, AIR 2019 SC 1802.
20) Magraj Patodia v RK Birla, AIR 1971 SC 1295.
21) Ramashraya vs State of Madhya Pradesh, AIR 2001 SC 1129.
22) Settu vs State of Tamil Nadu, 2006 Cri LJ 3889.
23) Dayanand v. State of Haryana, AIR 2008 SC 1823.
24) Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1.
25) State of Maharashtra v Meyer Hans George, AIR 1965 SC 722.
26) Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC).
27) Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142.
28) Chhotka v State of WB, AIR 1958 Cal 482.
29) State v Dinakar Bandu (1969) 72 Bom 905.
30) Bakhtawar vs State of Haryana, AIR 1979 SC 1006.
31) State of Punjab v Sucha Singh, AIR 2003 SC 1471.
32) Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175.
33) State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC).
34) Gul Mohummed vs King Emperor, AIR 1947 Nag 121;
35) Chander Bahadur Suha vs State, 1978 Cr LJ 942 (Sikkim).
36) Haughton vs Smith, (1973) 3 All ER 1109.
37) Sharad Birdhich and Sarda v. State of Maharashtra, AIR 1984 SC 1622.
38) State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840.

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39) Bakshish Singh v State of Punjab, AIR 1971 SC 2016.

40) Nemichand v. State of Rajasthan ,2015 Raj 9391.
41) Ravinder Singh v. Govt of NCT Delhi, 2008 (101) DRJ 61 (DB).
42) State of U.P. v. Dr. R.P. Mittal, AIR 1992 SC 2045.
43) Bodh Raj v. State of J&K, AIR 2002 SC 3164.
44) Anant v. State of Bombay, AIR 1960 SC 500 at page 523.
45) Laxman Naik v. State of Orissa, 1995 CrLJ 2692 (para 11) : AIR 1995 SC 1387.
46) Mahmood v. State of UP AIR 1976 SC 69.
47) Govinda Reddy v. State of Mysore, AIR 1960 SC 29.
48) Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570.
49) Bakshish Singh v. State of Punjab, AIR 1971 SC 2016.
50) State of H.P. v. Diwana, 1995 CrLJ 3002.
51) State of A.P. v. I.B.S.P. Rao, AIR 1970 SC 648.
52) Gade Lakshmi Mangraju v. State of A.P., AIR 2001 SC 2677.
53) Basu Harijan v. State of Orissa, 2003 CrLJ 2270.
54) Vaman Jaidev Raval v. State of Goa, 2007 CrLJ 431(NOC) (Bom).
55) Munshi Prasad v. State of Bihar, (2002) 1 SCC 351.
56) State of Haryana v. Ram Singh, (2002) 2 SCC 426.
57) Subhash Chand v. State of H.P., 1995 CrLJ 3460.
58) Radha Kant Yadav v. State of Jharkhand, 2003 (1) DMC 7.
59) Sheo Govind Bin v. State of Bihar, 1985 BBCJ 632.
60) Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883.
61) Yusuf S.K. v. State, AIR 1954 Cal 258.
62) State of Haryana v. Sher Singh, AIR 1981 SC 1021.
63) Uda alias Suda v. The State of Rajasthan, 2001 CrLJ NOC 28(Raj).
64) Kumara Thevar v State, (1971) Mad LW (Cri) 240.
65) Suresh Chander & Anr v State, Cr LJ 1708 (J&K).
66) Murugan v State of Tamil Nadu, (1991) Cr LJ 1680(Mad).
67) Biranchi Gaura v Subhagi Devi, (1970) Cut LT 711.
68) Suresh Chander & Anr v State, (1994) Cr LJ 1708 (J&K).
69) Pappan Damodaran v State, 54 Cr LJ 1551.
70) Murugan v State , (1991) Cr LJ 1680 (Mad) (DB).
71) Narayan v State of Maharashtra, (1997) Cr LJ 4537 (Bom) (DB).
72) Jabbar v State of Uttar Pradesh ,AIR 1966 All 590.
73) Narayan v State of Maharashtra ,(1997) Cr LJ.
74) Bhaskar Prasad v State of Madhya Pradesh ,(2009) Cr LJ 3275(MP).
75) State of Bombay v. Kathikalu, AIR 1961 Cri L. J 2007

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76) Nandini Sathpathy v. P.L. Dhani, AIR 1978 SC 1025.

77) Longworth v. Yelverton, LR 1 SC 218.
78) R v. Thompson, (1893) 2 QB 12.
79) Ram Singh v. Sonia, (2007) AIR SCW 1278.
BOOKS REFERRED

JOURNALS/ARTICLES

MATERIALS REFERRED FROM INTERNET

ONLINE DATABASE

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 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
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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.’

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STATEMENT OF FACTS

(I)
The accused Mr. Peter Hemsworth aged 40 years was a well known mathematician from
Cambridge, who had taught in the UK and the US for many 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 Mr. Peter Hemsworth was her Ph.D guide. They both fell in love there and
got married in 2013. However, her parents were against this marriage due to the huge
age gap and they wanted her to settle in UK. Alexa got a job in ACM too upon
completion of her Ph.D. in 2016. Their initial days were going fine and they would
complement each other at work. They had very few friends; among them were
Mr.Rajesh Gujral and his wife Mrs. Suneet Gujral. The Gujrals were very close to them
and would meet on a regular basis.

III

Slowly, their relationship started deteriorating from the year 2018 onwards. They both
got busy in their professional lives and so started drifting apart. There were various
rumours of Mr. Peter cheating on Mrs. Alexa with Mrs. Gujral, which were denied by
Mr. Peter upon confrontation. Mr. Peter had also censured Alexa and assaulted her,
straining their relationship further. In December 2019 Alexa got pregnant, but Mr. Peter
wanted her to abort the child to which Mrs. Alexa refused. He was not happy with the
fact that Mrs. Alexa left her job. He went to the extent of putting disgusting allegations
on Alexa that the father of the baby was Mr. Gujral. Soon she left her matrimonial home
and moved to a hotel nearby out of the fear that something might happen to the baby and
due to constant fights. The Gujrals, upon knowledge of this incident out of pity invited
Alexa to stay in their house, to which Alexa agreed. Mr. Peter got more agitated by this
incident.

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(IV)

On 5th May, 2020 Peter called Alexa to come to his house on the pretext that his parents
wanted to meet her. He expressed his desire that he wanted to sort out things with her, so
that they could go ahead with their lives. On 11 th May, 2020 Alexa along with Rajesh
went to meet all of them but Peter’s parents were not present. Peter said that due to
medical reasons his parents couldn’t come. They had dinner and Alexa ate very little
food. After dinner, at around 10:30pm seeing Alexa look tired Peter forced Alexa to stay
back for the night. Rajesh reluctantly agreed and went back home and told Alexa that he
would pick her up after 10:00 am the next morning.

(V)

The next morning on 12th May 2020, Rajesh went to Peter’s house at around 10:00 am 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 phone 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 spoke twice within it’s vicinity. During the investigation, Rajesh
confessed to the police that he had taken the Alexa mini music player lying on the
bedside.

(VII)

The post mortem (PM) report came two days later on 14 th May. According to the PM
report, Alexa died approximately between 4:00 am and 8:00 am on 12 th May 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.

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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 nad 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?

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SUMMARY OF ARGUMENTS

[1] THE EVIDENCE FROM THE ALEXA DEVICES IS ADMISSIBLE IN THE

COURT OF LAW

The evidence stolen from the crime scene is admissible in the court of law. These evidences
are relevant to the case and authentic sources since they are primary pieces of evidence. The
primary data of the original recordings stored in these devices is admissible in the court with
a certificate under section 65(B)(4) of the Evidence Act. There has been no breach of privacy
of Dr. Peter.

[2] THE EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE IN A

COURT OF LAW

The evidence stolen from the crime scene is admissible in the court of law. There is no law
that bars such evidence. The only bar is that the evidence should be relevant to the case and
genuine. In this case all these factors have been proven in issue 1.

[3] IT IS 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 submitted that the Hon’ble court should add a charge U/S. 302 IPC. The two
ingredients of murder i.e., mens rea and actus reus are fulfilled in the current case.
Circumstantial evidence points out to the fact that to could not have been a case of suicide but
murder.

[4] DR. PETER SHOULD BE CHARGED WITH SECTION 316 OF IPC

The accused, compelled the deceased to abort her child and also caused injuries on the
victim, which lead to the death of the quick unborn child. This is evident from the post
mortem report of the deceased. So the accused should be held guilty for the said offences.

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[5] DR.PETER AND RAJESH SHOULD NOT BE SUBJECTED TO NARCO

ANALYSIS TEST
The subjects should not undergo the NARCO test, because they may intermingle the present
incident with some other incident. There is no way to know if the subject is relating to non-
existing imaginary incidents, which he believes to be true in a normal state of mind. The
result of interrogation may be the outpourings of such events again.

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 ARGUMENTS ADVANCED

[1] THE EVIDENCE FROM THE ALEXA DEVICES IS ADMISSIBLE IN THE

COURT OF LAW

Evidence recorded in the Alexa devices is amissible in the court of law. The Alexa Electronic
device, Alexa Music player the servers connected to this cloud account are computers as
defined under the section 2(i)1 of the IT Act and all together form a computer network 2 or
computer system3. Since the devices used for recordings, i.e., the Alexa devices and music
player are brought before this court they are admissible as evidence. The evidence of
electronic records4 generated in the electronic form5 and stored as data6 in both these devices
are documents under section 37 of the Evidence Act8.

1.1 The Evidence recorded in the Alexa Devices are relevant to the case

According to Section 69 of the Indian Evidence Act, facts which, though not in issue, are so
connected with a fact in issue as to form part of the same transaction, are relevant, whether
they occurred at the same time and place or at different times and places.

In the present case the Alexa music player was present at the crime scene when the deceased
was murdered10. The music player starts recording the conversation when the word Alexa is
uttered twice11. We submit that during the time of the killing there is a high probability that
the accused and the deceased would have had a scuffle between them wherein the word
Alexa would have been uttered twice. The last few words of Alexa before her death would
have been recorded by the music player. We submit that those words of Alexa in the
conversation recorded by the music player are relevant facts in this case as they could be

1
The Information Technology Act, 2000, §2(i).
2
Id. §2(j).
3
Id. §2(j).
4
Id. §2(o).
5
Id. §2(r).
6
Id. §2(t).
7
Indian Evidence Act, 1872, §3.
8
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17.
9
Indian Evidence Act, 1872, §6.
10
¶ 12, Moot Proposition, Army Institute of Law National Moot Court Competition, 2020.
11
¶ 16, Moot Proposition, Army Institute of Law National Moot Court Competition, 2020.
 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

treated as a Dying Declaration under section 32(1) of the Indian Evidence Act, as they would
lead us to the cause of her death.12

We submit that the conversation recorded in the music player, is res gestae to the case at
hand and therefore the music player should be admitted as evidence in the court of law. The
recording of the conversation by the music player and the murder of Alexa are both the part
of the same transaction and so the music player and the recorded conversation are relevant to
the present case and so should be admitted as evidence as stated in Illustration (a), Section 6
of the Indian Evidence Act.13

According to Section 7 of the evidence act, facts which are the occasion, cause or effect,
immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of
things under which they happened, or which afforded an opportunity for their occurrence or
transaction, are relevant. It is submitted that the present conversation recorded by the music
player is relevant under section 6 and 7 of the evidence act as they were res gestae.

In the case of Yusufalli vs. State 14and R M Malkhani vs. State of Maharashtra 15 it was held
that contemporaneous tape record of a relevant conversation is a relevant fact and is
admissible under section 6 and 7 of the evidence act. In the case of Jagjit Singh v. State Of
Haryana16 the court held that electronic or digital evidence is admissible in the court of law,
while discussing about the admissibility of an interview transcript as evidence in that case.

In the case of R M Malkhani17 it was also held that a tape recorded conversation obtained
illegally is also admissible on the court of law. In the case of Tukaram S. Dhigole v.
18
Manikrao Shivaji Kokate the Court held that tape record of speeches is document under

12
Indian Evidence Act, 1872, §32(1) – “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 may be the nature of the proceeding in which the cause of his
death comes into question.”
13
Id. §6, Illustration (a) – “A is accused of the murder of B by beating him. Whatever was said or done by A or
B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a
relevant fact.”
14
Yusufalli Esmail Nagree v. The State Of Maharashtra, 1967 SCR (3) 720.
15
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.
16
(2006) 11 SCC 1.
17
Id. At 15.
18
AIR 2010 SC 965.

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section 3 of the Indian Evidence Act. The recordings of the statements of the accused in these
devices can be used to corroborate, contradict and refresh the memory of the accused with
respect to his previous statements 19. It may also be legitimately used for the purpose of
shaking the credit of a witness.20 Further, since these recordings record the voice of an
individual accurately up to the same pitch and frequency, they can be used to compare the
individual voices by the court21. Therefore, in light of the above arguments it is humbly
submitted that the evidence of recorded conversations stored in the Alexa Devices are
relevant to the case at hand and admissible in the court of law.

1.2 The Alexa Devices are Primary Evidence

Both these devices are primary evidences under section 62 22 of the Indian Evidence Act and
are therefore admissible as evidence before the court of law. The recordings stored in these
devices are admissible since they are the original copies of the recordings. According to
Section 62 primary evidence means the documents produced by itself for the purpose of
inspection by the court.

Further the recording of the Alexa devices are stored in the individual cloud accounts 23 of
connected with these devices and are counterparts24 to the conversations recorded by these
devices and are all produced by the means of the same uniform process 25, therefore making
them primary evidence too. These devices are the sources of these recordings, confirming
their existence and therefore, they are very important pieces of evidence and are admissible in
this present case. They also have some internal storage capacity, providing details of the
model, the wifi and phone connected and the geographical location of the device.

Primary evidence is evidence which the law requires to be given first and is the best evidence
and only in the absence of the same can secondary evidence be considered. 26 The court
permits the production of primary electronic records directly in the court without any notice.

19
N. Sri Rama Reddi & Ors v. V.V. Giri, (1970)2 SCC 340.
20
Dial Singh Narain Singh v. Rajapal Jagan Nath, 1969 Cr LJ 1422.
21
Ritesh Sinha v. State of Uttar Pradesh, 2019 SC 956.
22
Indian Evidence Act, 1872, §62.
23
Serial No. 1, Clarifications to Moot Proposition, National Moot Court Competition, Checkmate, 2020 – “
Alexa Devices are similar to the Amazon Alexa”
24
Indian Evidence Act, 1872, §62, Explanation 1 – “Where a document is executed in several parts, each part
is primary evidence of the document; Where a document is executed in counterpart, each counterpart being
executed by one or some of the parties only, each counterpart is primary evidence as against the parties
executing it”
25
Id. Explanation 2, “Where a number of documents are all made by one uniform process, as in the case of
printing, lithography, or photography, each is primary evidence of the contents of the rest”
26
Raman Pillai v. Kumaran Parameswaran, AIR 2002 Ker 133.

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In the case of Vikram Singh v State of Punjab27 the court held that the cassettes of the tape
recorded conversation was primary evidence and did not require a certificate under section
65(B) of the Evidence Act.

Further on prima facie, in this case all fingers are pointed out at the accused Mr. Peter and not
admitting the evidence in the Alexa devices would cause huge prejudice to the victim Mrs.
Alexa. Therefore, in the light of the above arguments we submit that the Alexa Devices are
primary evidence.

1.3 The recordings or data stored in these Alexa devices are admissible in court with
a certificate under section 65(B)(4) of the Evidence Act

The fact that the owner of these Alexa devices Mr. Peter has not denied the fact that these
devices can record conversations by saying the wake word Alexa twice proves that these
devices store evidence regularly in the form stated by Mr. Rajesh. The accused Mr. Peter has
also stated that these devices procured by the Investigating Officer were owned by him 28. The
recordings in these devices are secondary evidence of the Alexa devices.

These transcripts of the recordings stored in these devices, the cloud accounts and the servers,
all being computers forming a computer network or system, can be treated as a computer
output under section 65(2)29 and this entire computer network or system can be treated as a
single computer under section 65(3)(d)30. These data of these recordings are primary evidence
stored in electronic form. In cases where the data is self-generated/created/directly recorded
in a CD, DVD, Cloud Accounts, Hard-Drive, Memory Chip, and Pen Drive without any
human intervention, such data will be considered as Primary Evidence.

Further, every digital record has a meta data stored in it. The meta data are structured as
coded data, which gives every record its own character. It should be remembered that the
certification under Section 65B is not for the truthfulness of the content of the computer
generated record, but is essentially related to the working condition of the computer from
where the stored record is produced in a tangible form for the Court to inspect.31 The court
has also stated that since evidences of such cloud computing devices is stored in large servers
of big companies, making it impossible for the same to be brought before the court, a

27
AIR 2017 SC 3227.
28
¶ 18, Moot Proposition, National Moot Court Competition, Checkmate, 2020
29
Indian Evidence Act, 1872, §65(B)(2).
30
Id. §65(B)(3)(d).
31
K. Ramajayam @ Appu v. The Inspector of Police, 2016 (2) CTC 135.

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certificate under section 65(B)(4) given by the company is enough to prove the admissibility
of such evidence.32

Therefore, the court can presume the existence of these recordings of the conversations or last
words said by Mrs. Alexa under section 11433 of the Evidence Act. Sub section (g)34 of the
same section states that the court can presume the existence of certain facts when the
evidence which could be and is not produced would, if produced, be unfavourable to the
person who withholds it. In this case the accused does not want to these recordings and Alexa
devices to be produced and made admissible in the court since it would be unfavourable to
the accused as it can lead to his conviction.

35
As held in the cases of Arjun Khotkar and Anwar P.V.36, the certificates under section
65(B)(4) can be produced at any stage of the trial as directed by the court and the court has all
the power to examine the evidence by itself under section 165 of the Evidence Act and by the
examination of an expert under section 45 of the evidence act further. The present stage being
the framing of charges, these recordings can be marked as an exhibit and the certificate can
be later adduced37 at the stage of admission of evidence. Therefore in the light of the above
arguments, we submit that the recorded evidence in the Alexa devices are admissible in the
court of law.

1.4 Obtaining the evidence in the Alexa Devices is not a breach of Peter’s Privacy

The right to privacy under Article 2138 of the constitution is not absolute and can be waived in
respect of compelling state interest. It is not an absolute right and is subject to certain
restrictions too39. The admissibility of the breach of privacy must be decided based on the
relevancy and the proportionality which ensures a rational nexus between the objects and the
means adopted to achieve them. Since no fundamental right under our Constitution is
absolute, in the event of conflict between two fundamental rights, as in this case, a contest
between the right to privacy and the right to fair trial, both of which arise under the expansive
Article 21, the right to privacy may have to yield to the right to fair trial of the victim40.

32
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
33
Indian Evidence Act, 1872, § 114.
34
Id. § 114(g).
35
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal And Others, 2020 SCC ONLINE SC 571.
36
Id. At 32
37
Id. At 31
38
INDIA CONST. art. 21.
39
Justice K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1.
40
Sahara India Real Estate Corporation Limited & Ors. v. Securities and Exchange Board of India & Anr ,
(2012) 10 SCC 603.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

Therefore, in the light of the above arguments we humbly submit that, in the present case
there has been no breach of Peter’s privacy.

[2] THE EVIDENCE STOLEN FROM THE CRIME SCENE IS ADMISSIBLE IN A

COURT OF LAW

Stolen evidence is admissible in the court of law. According to Section 5 41 of the Indian
Evidence Act evidence may be given of the existence or non-existence of any facts in issue or
of any relevant facts. The Evidence Act does not talk about how such evidence might have
been obtained, i.e., whether legally or illegally.

Similarly, in the case of R.M. Malkani v. State of Maharashtra 42 the Supreme Court had held
that in issues of admissibility of evidence it did not matter how the evidence was obtained
and that even if it was stolen it would still be admissible. 43 Moreover, relevant evidence could
be taken into account irrespective of the method in which it was obtained the manner in
which the court44 and that evidence which was otherwise relevant can-not be considered
irrelevant just because the manner in which it was obtained by the prosecution was against
the statutory provisions45.

It the case of Pooran Mal v. Director of Inspection (Investigation) of Income-Tax, New

Delhi46 the Court held that the test of admissibility of evidence lied in its relevancy and that
unless there was an express or necessarily implied prohibition in the Constitution or other
law, evidence obtained as a result of illegal search or seizure was not liable to be shut out.

The ruling in the Pooran Mal Case was further upheld in the recent Supreme Court case of
Yashwanth Sinha & Ors. vs. Central Bureau of Investigation & Ors 47, wherein the court held
that in England and in India the context for material being considered by the court was
relevancy. Therefore, there can be no dispute about the manner in which evidence was
obtained, namely the fact that it was procured in an illegal manner would not ordinarily be
very significant in itself in regard to the court’s decision to act upon the same. In the case of
Magraj Patodia v RK Birla48 the court held that the fact that a document was procured by
improper or even illegal means would not be a bar to its admissibility if it is relevant.
41
Indian Evidence Act, 1872, § 5
42
AIR 1973 SC 157.
43
(1961) 8 Cox CC 498 - “it matters not how you get it if you steal it even, it would be admissible in evidence”.
44
Pushpadevi M Jatia v. ML Wadhawan, AIR 1987 SC 1748.
45
Barindra Kumar Ghose v. Emperor, ILR (1910) 37 Cal 467.
46
AIR 1974 SC 348.
47
AIR 2019 SC 1802.
48
AIR 1971 SC 1295.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

Therefore, in light of the above arguments we humbly submit that stolen evidence is
admissible in the court of law. The relevancy, accuracy and genuineness of the evidence in
the Alexa Devices mainly the Alexa Music Player has been proved in Issue 1. Therefore, the
evidence in the stolen Alexa Music Player is also admissible in the court of law.

[3] IT IS 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 should 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 committed murder and there are
circumstantial evidence establishing that the accused has committed murder. Hence, the
Hon’ble Court shouldn’t add a charge U/S 302 IPC.
Whether the offence falls under S. 302, IPC or S. 304, IPC., the nature of the injuries
sustained by the deceased and the circumstances under which the incident took place are
relevant factors. From the nature of the injuries and the origin and genesis of the incident, it
could be spelt out that all the ingredients of the offence of murder defined under S. 300, I.P.C
are made out and it is not possible to bring the offence within any of the five exceptions of S.
300, I.P.C.49
Under clause third of S. 300, IPC, culpable homicide is murder, if both the following
conditions are satisfied; i.e. (a) that the act which causes death is done with the intention of
causing death or is done with the intention of causing a bodily injury; and (b) that the injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be
proved that there was an intention to inflict that particular bodily injury, which in the ordinary
course of nature, was sufficient to cause death, viz., that the injury found to be present the
injury that was intended to be inflicted. Even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did
not extend to the intention of causing death, the offence would be murder. Illustration (c)
appended to S. 300 clearly brings out this point. 50
In the present case, the accused compelled the deceased for aborting their child and to
rebuked for leaving the job. The accused wanted to get rid away of the deceased and he
assaulted her, while the deceased loved the accused truly and she tried to make their

49
Ramashraya vs State of Madhya Pradesh, AIR 2001 SC 1129.
50
Settu vs State of Tamil Nadu, 2006 Cri LJ 3889.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

relationship better. Therefore, the accused planned everything and murdered the deceased by
asking the deceased to stay in his apartment for that night.

3.1 Mens rea to commit murder was present

In the absence of any circumstances to show that injury was caused accidentally or
unintentionally, it is presumed that there was intention to cause the inflicted injury.51 Mens
rea is considered as guilty intention52, which is proved or inferred from the acts of the
accused53 In the present case, there is no doubt that the death of deceased is non-natural
death. It cannot be accidental or intentional also. This indicates that the accused has some
active part in the death of the deceased which makes a strong case against the accused for
murder.
It is presumed that every sane person intends the result that his action normally produces and
if a person hits another on a vulnerable part of the body, and death occurs as a result, the
intention of the accused can be no other than to take the life of the victim and the offence
committed amounts to murder54. Moreover, the intention to kill is not required in every case,
mere knowledge that natural and probable consequences of an act would be death will suffice
for a conviction under s. 302 of IPC.55
Sec 8, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or
preparation for any fact in issue or relevant fact. Thus, previous threats or altercations
between parties are admitted to show motive. 56 It is further pertinent to note that if there is
motive in doing an act, then the adequacy of that motive is not in all cases necessary. Heinous
offences have been committed for very slight motive.57
The motive of the accused can established by the fact that he assaulted his wife. Thereby, the
relationship strained. When Alexa was pregnant, the accused asked her to abort. Alexa
refused to abort and Peter got livid for that. The accused rebuked Alexa for leaving the job to
which Alexa refused. Peter even went on to allege that the father the baby she was expecting
was probably Rajesh. The deceased was disgusted at his behaviour. She left her matrimonial
home and shifted into a hotel close by.

51
Dayanand v. State of Haryana, AIR 2008 SC 1823.
52
Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1.
53
State of Maharashtra v Meyer Hans George, AIR 1965 SC 722.
54
(1951) 3 LR 635.
55
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC).
56
Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142; Chhotka v State of WB, AIR 1958 Cal 482.
57
State v Dinakar Bandu (1969) 72 Bom 905.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

Then on 5th of May,2020 Alexa was called by Peter to his home on the pretext that his
parents wanted to meet her. He expressed his desire that he wanted to sort out things between
them so that they could go ahead with their lives. Alexa along with Rajesh went to meet all of
them on 11th of May,2020. Though Peter’s parents were not there. Then they had dinner
together, Alexa took very little of food. It was 10:30 pm and Alexa looked tired. Seeing this
Peter nearly forced Alexa to stay back for the night as it was late. Then the next morning
Alexa was found death. It is clearly seen through the facts that the accused has motive and
intention to kill his wife.
For the commission of the offence of murder, it is not necessary that the accused should have
the intention to cause death. It is now well settled that if it is proved that the accused had the
intention to inflict the injuries actually suffered by the victim and such injuries are found to
be sufficient in ordinary course of nature to cause death, the ingredient of clause 3rdly of S.
300 of the I.P.C are fulfilled and the accused must be held guilty of murder punishable under
S. 302 of the I.P.C.58
Arguendo, Absence of motive is irrelevant
Assuming for the sake of argument that the accused had no motive, it is humbly contended
that absence of motive is no ground for dismissing the case. Motive is immaterial so far as the
offence is concerned, and need not be established 59 as the mere existence of motive is by
itself, not an incriminating circumstance and cannot take the place of a proof. 60Therefore,
absence of proof of motive, does not break the link in the chain of circumstances connecting
the accused with the crime, nor militates against the prosecution case and is not fatal as a
matter of law.61 When the circumstantial evidence on record is sufficient to prove beyond any
doubt to prove that it was the accused and no one else, who intentionally caused the death of
the accused then, motive of the crime need not be proved62, as in the current case.

3.2 Actus reus to commit murder was present

Actus reus is any wrongful act63. It is the conduct that constitutes a particular crime. 64 Every
criminal act is based on actus reus and mens rea. The word "actus reus" connotes an overt act.
This is a physical result of human conduct, and therefore, an event which is distinguished
58
Bakhtawar vs State of Haryana, AIR 1979 SC 1006.
59
Ratanlal and Dhirajlal, The Indian Penal Code (33rd ed.,2011).
60
State of Punjab v Sucha Singh, AIR 2003 SC 1471.
61
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175.
62
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC).
63
Aiyar&P Ramanatha, The Law Lexicon, 49 (2nd ed., 2006).
64
Gul Mohummed vs King Emperor, AIR 1947 Nag 121; Chander Bahadur Suha vs State, 1978 Cr LJ 942
(Sikkim).

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

from the conduct which produced the result. In a murder case, it is the victim's death which is
an event and, therefore, is an actus reus.65 The circumstantial evidence in a case where there
is a link of causation, if established, proves that the act was committed by the person so
accused.66
Bearing in mind that it is not for the prosecution to meet any and every hypothesis suggested
by the accused, howsoever extravagant and fanciful it might be 67, it is humbly submitted
before this Hon’ble Court that the circumstantial evidence in the instant matter shows that
within all human probability, the act must have been done by the accused68.
It is submitted that the post mortem report suggests strangulation marks on the neck & other
mild injuries, scratches and scars on the body. The phrase “other mild injuries, scratches and
scars on the body” signifies that there was some physical spat between the accused and the
deceased. It means that the deceased resisted the accused while he was using force.
Therefore, it is established that there was actus reus. In the post mortem report, the cause of
death was stated as asphyxia due to hanging. There is nothing given as to signify homicidal
death. There is no oral or documentary evidence present to prove the actus reus. In various
cases, courts have given the different meanings of hanging 69 but usage of such a general term
in the post mortem does not lead to any conclusive proof. 70 So hence there is no clarity as to
whether the death was suicidal or homicidal.

3.3 Circumstantial evidence proves the murder beyond reasonable doubt

Essential ingredients to prove guilt by circumstantial evidence are:
(1) Circumstances from which conclusion is drawn should be fully proved.
(2) Circumstances should be conclusive.
(3) All facts so established should be consistent only with the hypothesis of guilt and
inconsistent with innocence of the accused.
(4) Circumstances should exclude the possibility of guilt of a person other than the accused.71

65
Haughton vs Smith, (1973) 3 All ER 1109.
66
Sharad Birdhich and Sarda v. State of Maharashtra, AIR 1984 SC 1622.
67
State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840.
68
Bakshish Singh v State of Punjab, AIR 1971 SC 2016.
69
Nemichand v. State of Rajasthan ,2015 Raj 9391.
70
Ravinder Singh v. Govt of NCT Delhi, 2008 (101) DRJ 61 (DB).
71
State of U.P. v. Dr. R.P. Mittal, AIR 1992 SC 2045.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

The Supreme Court, in Bodh Raj v. State of J&K,7228 added one more point to the above four,
viz., there must be a chain of evidence so complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused. These conditions being satisfied
circumstantial evidence can be the sole basis for conviction.
Justice Hidayatullah observed "Circumstantial evidence in this context means a combination
of facts creating a net-work through which there is no escape for the accused, because the
facts taken as a whole do not admit of any inference but of his guilt."73
When attempting to convict on circumstantial evidence alone the Court must be firmly
satisfied of the following three things:74
i. The circumstances from which the inference of guilt is to be drawn, must have
fully been established by unimpeachable evidence beyond a shadow of doubt
ii. The circumstances are of determinative tendency, unerringly pointing towards the
guilt of the accused
iii. The circumstances taken collectively, are incapable of explanation on any
reasonable hypothesis except that of the guilt sought to be proved against him

It is humbly submitted before this Hon’ble Court that evidence of the suicide has to be drawn
from the post-mortem report of the victim and the mental condition of the victim. It is
humbly submitted that as per Section 3 of the Indian Evidence Act, Evidence includes all
documents produced for the inspection of the Court. 75 These documents are admissible in
court as expert opinion under Section 45 of the I.E.A.
The standard of proof required to convict a person on circumstantial evidence is well
established by a series of decisions of the Supreme Court. According to that standard the
circumstances relied upon in support of the conviction must be fully established 76 and the
chain of evidence furnished by those circumstances must be so far complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of the accused 77 and
further it must be such as to show that within all human probability the act must have been

72
AIR 2002 SC 3164.
73
Anant v. State of Bombay, AIR 1960 SC 500 at page 523. See also Laxman Naik v. State of Orissa, 1995
CrLJ 2692 (para 11) : AIR 1995 SC 1387.
74
Mahmood v. State of UP AIR 1976 SC 69
75
"Evidence" means and includes-- (1) all statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all
documents produced for the inspection of the Court; such documents are called documentary evidence.
76
Govinda Reddy v. State of Mysore, AIR 1960 SC 29.
77
Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

done by the accused7836 and, if two views are possible on such evidence, the view pointing
towards the innocence of the accused is to be adopted. 79 However, this does not mean that
before the prosecution can succeed in a case resting upon circumstantial evidence alone, it
must meet any and every hypothesis suggested by the accused, however extravagant and
fanciful it might be. Further, it is not necessary that every one of the proved facts must in
itself be decisive of the complicity of the accused or point conclusively to this guilt. 80 It is the
cumulative result of all the circumstances which must unerringly point to the guilt of the
accused and not one circumstance by itself.81
3.3.1 POST MORTEM REPORT
The post-mortem report submitted by the doctor conducting autopsy of the dead body is
admissible in evidence even without examining the doctor in Court. 82 However, the Bombay
High Court has held that the post-mortem report or the medical certificate is not substantive
evidence.83 The post-mortem report is a document which by itself is not a substantive
evidence. It is the doctor's statement in Court, which has the credibility of a substantive
evidence and not the report, which in normal circumstances ought to be used only for
refreshing the memory of the doctor witness or to contradict whatever he might say from the
witness box84, and the significance of the evidence of the doctor lies vis--vis the injuries
appearing on the body of the deceased person and likely use of the weapon therefore and it
would then be prosecutor's duly and obligation to have the corroborative evidence available
on the record from the other prosecution witnesses.85
Mere presence of ligature mark is not sufficient to prove death by strangulation. Evidence as
to the effects of violence in underlying tissues is necessary 86. Where post-mortem report and
evidence of doctor shows that the death of the deceased was caused due to strangulation and
that was homicidal and could not have been done by the deceased herself, it was held to be
proved beyond doubt that the death was homicidal not a suicidal one.87
The post-mortem report is an extremely relevant and important document, in cases brought
under Sec.302, of the Indian Penal Code.47 The post mortem report becomes important in

78
Bakshish Singh v. State of Punjab, AIR 1971 SC 2016.
79
State of H.P. v. Diwana, 1995 CrLJ 3002.
80
State of A.P. v. I.B.S.P. Rao, AIR 1970 SC 648.
81
Gade Lakshmi Mangraju v. State of A.P., AIR 2001 SC 2677.
82
Basu Harijan v. State of Orissa, 2003 CrLJ 2270.
83
Vaman Jaidev Raval v. State of Goa, 2007 CrLJ 431(NOC) (Bom).
84
Munshi Prasad v. State of Bihar, (2002) 1 SCC 351.
85
State of Haryana v. Ram Singh, (2002) 2 SCC 426.
86
Subhash Chand v. State of H.P., 1995 CrLJ 3460.
87
Radha Kant Yadav v. State of Jharkhand, 2003 (1) DMC 7.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

cases where the cause of death is to be established and is a matter of controversy48 88. The
chain of link starts from the fact that they both fell in love and married and then the accused
forced the deceased to abort and leave the job. Since the deceased refused to do the things,
the accused planned and murdered the deceased accordingly.
3.3.2 PLEA OF ALIBI
Section 103 of IEA, 1872 talks about plea of alibi and provides that it is for the accused who
pleads alibi to prove it.89 Burden to prove plea of alibi is on accused pleading it. Burden is on
the accused who is setting up defence of alibi to prove it but even so, the burden of proving
the case against the accused is on the prosecution irrespective of whether or not the accused
have made out plausible defence.90 Onus is on accused to substantiate plea of alibi and make
it reasonably probable.
Where the accused pleads that he was elsewhere at the time of incident, the burden to prove
the same lies on him. Though burden is not as heavy as on the prosecution to prove its case
beyond reasonable doubt, the defence of alibi can be probabilised also. The false plea of alibi
cannot destroy the prosecution case which is supported by direct and unshaken evidence of
the eye-witnesses. The false plea of alibi cannot destroy the prosecution case which is
supported by direct and unshaken evidence of the eye-witnesses.91 From the above
authorities, it is clear that the burden is on the accused to prove that he was not present at the
apartment when the deceased died.
3.3.3 LAST SEEN EVIDENCE
The last seen theory comes into play where the time-gap between the point of time when the
accused and the deceased were seen last alive and when the deceased is found dead is so
small that possibility of any person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to positively establish that the
deceased was last seen with the accused when there is a long gap and possibility of the other
persons coming in between exists.92 It is submitted that the deceased was last seen together
with the accused. There is a strong case against the accused as there was no one else in the
apartment that morning.
The counsel humbly submits that the charges U/S 302 of IPC should be added and the
accused should be tried under that charges as well.

88
Sheo Govind Bin v. State of Bihar, 1985 BBCJ 632.
89
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883.
90
Yusuf S.K. v. State, AIR 1954 Cal 258.
91
State of Haryana v. Sher Singh, AIR 1981 SC 1021.
92
Uda alias Suda v. The State of Rajasthan, 2001 CrLJ NOC 28(Raj).

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

[4] WHETHER DR. PETER CAN BE CHARGED UNDER SECTION 316, IPC?

It is humbly submitted that Dr.Peter should be charged under section 316 of IPC.

4.1. The accused casued death of a quick unborn child by act amounting to
culpable 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 an 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.93

It is enough if the pregnancy and the intentional expulsion of immature contents of the uterus
are established for the purpose of holding that the woman was with a child 94. Quickening is
the name applied to peculiar sensations which are experienced by a woman after about four
months of pregnancy. The symptoms are ascribed to the first perception of movements of the
foetus which occur or the womb begins to rise out of the pelvis. These movements are
perceptible to the mother before they are made evident by an external examination. It is
acknowledged that the woman starts feeling the movements of the foetus between 14 to 18
weeks of pregnancy.95 It is evident from the given post-mortem report 96 that the victim is 20
weeks pregnant and the accused has caused death of that quick unborn child amounting to
culpable homicide. Accused should be prosecuted97 on allegations that he should also have
assaulted that pregnant women causing death of the child, which can be made evident that
there are injuries on her body , Deep laceration around the neck [1” wide] , Fractured wrist
[Left] and a small abrasion on the right side of the face. Hyoid fracture present.98

The following case falls within the ambit of 316, as it satisfies the ingredients of the section99

 the woman was quick with a child100

93
Indian Penal Code, 1860 §316.
94
Kumara Thevar v State, (1971) Mad LW (Cri) 240.
95
Suresh Chander & Anr v State, Cr LJ 1708 (J&K).
96
Post-mortem report, Moot Proposition, National Moot Court Competition, Checkmate, 2020.
97
Murugan v State of Tamil Nadu, (1991) Cr LJ 1680(Mad).
98
Post-mortem report, Moot Proposition, National Moot Court Competition, Checkmate, 2020.
99
R A Nelson, Indian penal Code (11th ed., 2015).
100
Biranchi Gaura v Subhagi Devi, (1970) Cut LT 711.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

 the accused did an act to cause the death of such child101

 the circumstances, under which the act was done, were such as to make the accused
guilty of culpable homicide if death had been caused; and

 the said act did cause the death of the quick unborn child.

Here in the accused Dr. Peter is very reluctant to have the child and also asked to abort the
child in the past, where in it clearly serves the motive that DR. Peter has the Mens Rea to
cause the death of that unborn child. 102

Accordingly in a case, Where the accused-husband had strained relations with the deceased-
wife, and gave a single blow on the head of the deceased causing her death, and made no
attempt to report the occurrence to the police and told other persons that his wife had
committed suicide; the medical officer stated that in the uterus of the deceased there was a
male body 20 weeks old and that 12 after weeks of conception, the foetus gets life, the charge
for the offence under s 302 and 316, IPC103, was found proved against the accused-
husband.104

Where the accused-husband caused the death of his pregnant wife, the motive of which was
proved to be his illicit relations with his sister-in-law, the medical evidence corroborated the
prosecution case of the death of the deceased due to throttling, the accused and the deceased
were present in the house of the accused on the date of the incident and slept adjacent to each
other, the conviction of the accused under S. 302 and 316 was found proper.105

Hence it is submitted that, one of the essential ingredients of an offence under this sections is
that the culpable act or the actus reus should be done before the birth of the child.106 Here DR.
Peter has caused murder of the victim, wherein the actus reus from the accused is proved
That act is done before the birth of the child, which resulted in preventing the child from
being born alive or cause it to die after its birth. 107Dr. Peter also has the intention 108 of
preventing the child from being born alive or cause it to die after its birth.

101
Suresh Chander & Anr v State, (1994) Cr LJ 1708 (J&K).
102
Pappan Damodaran v State, 54 Cr LJ 1551.
103
Indian Penal Code, 1860, §302,316.
104
Murugan v State , (1991) Cr LJ 1680 (Mad) (DB).
105
Narayan v State of Maharashtra, (1997) Cr LJ 4537 (Bom) (DB).
106
Jabbar v State of Uttar Pradesh ,AIR 1966 All 590.
107
Narayan v State of Maharashtra ,(1997) Cr LJ.
108
Bhaskar Prasad v State of Madhya Pradesh ,(2009) Cr LJ 3275(MP).

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

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

ANALYSIS?

It is humbly submitted that Dr. Peter and Rajesh shouldn’t be subjected to NARCO Analysis
Test. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In Narco analysis test the drug like sodiumamytal is used as a truth drug on the
suspect for determination of facts about the crime. It is called ‘Amytal Interview’.109 The term
Narcoanalysis is derived from Greek word NARKCA meaning anaesthesia or tarpor by
administering psychotropic drug to the subject.110. In the narcoanalysis test, the subject’s
imagination is neutralized and reasoning faculty affected by making him semi-conscious. The
subject is not in a position to speak up on his own .There are deficiencies and pitfalls, real or
imaginary, in Narco-analysis interrogation.

5.1. Narco analysis as a violation of human rights & right against self incrimination

The tests such as Narco-analysis, lie detector, brain finger printing involves invasive
methods. They definitely adversely affect human dignity. And as such, they are crude and
cruel violation of human rights. Since they affect normal functioning of the human beings,
they amount to torture - both physical and mental. Human rights norms are universal. They
do not approve use of coercive methods of investigation. These tests are also against medical
ethics. It is to ensure compliance with ethics that the profession insists for the presence of its
members in situations where the human rights are threatened.111

It is purely a human rights violation committed against that accused persons. Supreme Court
also pointed out in Selvi case112 that the use of narco analysis, brain mapping and Polygraph
test on accused, suspects and witnesses is unconstitutional and violation of the ‘right to
privacy’ mentioned under Article 21 of the Constitution of India and also stated that it was
not even admissible as an evidence in the Court. Narco Analysis test is purely a human rights
violation committed against an accused person and it affects his fundamental rights also.113

In case of State Bombay v. Kathikalu114it was held that it must be shown that the accused was
compelled to make statement likely to be incriminative of himself. Compulsion means duress,
109
Perry JC & Jacobs D, Overview: clinical applications of the Amytal interview in psychiatric
emergency settings, American Journal of Psychiatry (1982).
110
BR.Sharma, Forensic Science in criminal Inestigation and trail (6th ed., 1980).
111
3 Report on use of narco analysis in police interrogation: Constitutionality, 39 MLJ Crl (2010).
112
2010 SC 1974.
113
SathyendraK.&.H.Zaidi, Narco Analysis, Brain Mapping, Hypnosis and Lie detection Tests 488 (1st ed.,
2008).
114
AIR 1961 Cri L J 2007.

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 ARMY INSTITUTE OF LAW, NATIONAL MOOT COURT COMPETITON,

which includes threatening. The accused makes a confession under inducement, threat or
promise which is clear violation of art 20(3)115.

Accused has the right against forced self-incrimination, widely known as the Right to Silence
which is enshrined in the Code of Criminal Procedure 116 and the Indian Constitution117,
NARCO analysis is mere violation of those rights. It is well established that the right to
silence has been granted to the accused by virtue of pronouncement in the case
of NandhiniSaptapathy v. P.L. Dani118, the Supreme Court held that no one can forcibly
extract statement from the accused, who has the right to keep silence during the Court of
investigation (interrogation).

According to CrPC119 every person “is bound to answer truthfully all questions, put to him by
a police officer, other than questions the answers to which would have a tendency to expose
that person to a criminal charge, penalty or forfeiture”. The privilege against self-
incrimination thus enables the maintenance of human privacy in the enforcement of criminal
justice. It also goes with the maxim Nemo Tenetur Seipsum Accusare120 i.e., ‘No man, not
even the accused himself can be compelled to answer any question, which may tend to prove
him guilty of a crime, he has been accused of. This maxim expresses a characteristic principle
of English Law121. Only free and voluntary confessions by accused are admissible.122

If the confession from the accused is derived from any physical or moral compulsion (be it
under hypnotic state of mind) it should stand to be rejected by the court. Hence, it is said that
Narco-analysis constitutes mental torture and thus violates the right to life under Article
21123as it deals with right to privacy. Again, law against intrusion in privacy of individual
would not allow brain fingerprinting evidence to be given in court.

5.2. Narco analyis not being admissible in the court of law

As in the case Selvi v. State of Karnataka Apex Court124 held that no individual should be
forcibly subjected to any of the techniques in question, whether in the context of investigation

115
INDIA CONST. art. 20(3).
116
Criminal Procedure Code, 1973, §91(1).
117
INDIA CONST. art. 20(3).
118
AIR 1978 SC 1025.
119
Criminal Procedure Code, 1973, §161(2).
120
Black’s Law Dictionary, 9th ed.,
121
Longworth v. Yelverton, LR 1 SC 218.
122
R v. Thompson, (1893) 2 QB 12.
123
INDIA CONST. art. 21.
124
Id.

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in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into

personal liberty. However, The Court allowed voluntary administration of the impugned
techniques in the context of criminal justice, provided that certain safeguards are in place.

Even when the subject has given consent to undergo any of these tests, the test results by
themselves cannot be admitted as evidence because the subject does not exercise conscious
control over the responses during the administration of the test. However, any information or
material that is subsequently discovered with the help of voluntary administered test results
can be admitted, in accordance with the Evidence Act, 1872125.

The Supreme Court of India in Ram Singh vs. Sonia126 , while dealing with the question of
admissibility and reliability of the result of the NARCO analysis test, has not given any
conclusive opinion regarding the admissibility and the reliability of the report of the NARCO
analysis test. Where in the decision is still unknown it can be considered as, the results of the
test alone is not admissible in the court of law, till corroborated with other evidentiary from
of evidences

5.3. Chances that Dr.peter and Rajesh may intermingle the present incident with
some other incicdent

Narco Analysis shouldn’t be admissible in the court of law as an evidence, as there is no sure
test to indicate that the trance is real or fake. According to the medical jurisprudence on
Narco analysis,127 there is no guarantee that the subject is not just accepting the suggestions of
the examiner or telling what he has done or seen. There is no surety that the subject is giving
facts or mixing them with lie.

Surely, a person who is dis-inhibited by Na (Sodium) Pentathol may talk, whether he tells the
truth, his fears, his goals or a mish-mash of some or all of the above is anybody’s guess. A
student who is anxious about upcoming examinations may dream of having failed the exam.
The student may speak of this fear (failure) under Na Pentathol. One cannot take this literally
and decide that the student has indeed failed or is going to fail. Many anaesthetists would be
able to relate how patients, before they “go under” talk some facts and some non-sense all
mixed together. There cannot be much difference in the dis-inhibited state induced by Na
Pentathol or alcohol for that matter. Typically, drunks talk a lot and this is not taken
seriously. Pentathol is quick, reversible and relatively safe and therefore, it is used in
125
Indian Evidence Act, 1872, §27.
126
(2007) AIR SCW 1278.
127
N. Murky P, Narcoanalysis, International Journal of Medical Toxicology & Legal Medicine (2007).

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anaesthesia. However, it can cause laryngeal spasm, confusional states, states of agitation,
anaphylaxis etc. There is also the question of informed consent and the rights of the accused.

The subject may intermingle the present incident with some other incident. There is no way
to know if the subject is relating to non-existing imaginary incidents, which he believes to be
true in a normal state of mind. The result of interrogation may be the outpourings of such
events. There is no statistical base for the validity of the test. Therefore in light of above
arguments, we humbly submit that, there is no general acceptance of narco-analysis. Hence, it
is pleaded that Dr.Peter and Rajesh shouldn’t be subjected to Narco analysis test

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PRAYER