BEFORE THE HON'BLE SESSION COURT OF WELLINGTON, TAMIL NADU

UNDER SECTION 26 R/W SCHEDULE 1 OF THE CODE OF CRIMINAL PROCEDURE,

1973

CRIMINAL APPEAL NO . /2024

IN THE MATTER OF

STATE OF TAMIL NADU ……………..Appellant

v.

LALIT ………………. Respondent

MEMORIAL ON BEHALF OF APPELLANT

 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS

2. INDEX OF AUTHORITIES

3. STATEMENT OF JURISDICTION

4. STATEMENT OF FACTS

5. ISSUES RAISED

I. WHETHER SUFFICIENT GROUNDS OF LEGAL INSANITY EXISTS SO AS TO

EXONERATE THE ACCUSED FROM LIABILITY OF MURDER ?
II. WHETHER THE BURDEN OF PROOF OF LEGAL INSANITY ON THE PART OF DEFENCE
IS AT PAR WITH BIRDEN OF PROOF ON PANT OF PROSECUTION ?
III. WHETHER THE DYING DECLARATION IN THIS CASE ADMISSIBLE AGAINST LALIT ?

6. SUMMARY OF ARGUMENTS

7. ARGUMENT ADVANCED

8. PRAYER FOR RELIEF

 LIST OF ABBREVIATIONS

S.NO. ABBREVIATION EXPANSION

1. AIR All India Reporter

2. ANR Another

3. BC British Columbia

4. Bom Bombay

5. CA Civil Appeal

6. Cri Criminal

7. CriLJ Criminal Law Journal

8. CrPC Criminal Procedure Code

9. Fed Federal

10. Hon’ble Honorable

11. ILR Indian Law Reports

12. IPC Indian Penal Code

13. Ltd Limited

14. ORS Others

15. SC Supreme Court

 INDEX OF AUTHORITIES

I. LIST OF STATUTES

1. The Code of Criminal Procedure, 1973

2. The Indian Evidence Act , 1872
3. The Indian Penal Code , 1860

II. LIST OF CASES

S.No. Case Title Citation

1. Bhagwan Singh v. State of 1976 Cr.LJ 203(SC)

Haryana

2. Guru Singh v. State of Rajasthan 2001 Cr.LJ 487 (SC)

3. Jai Lal v. Delhi Administration AIR 1969 SC

4. Kamla Singh v. State AIR 1955 Pat. 209

5. K.Anbazaghan v. AIR 2004 SC 524

Superintendent of Police

6. Narain v. State 1953 Cr.LJ 1610

7. Paramjeet Singh v. State MANU/DE/0244/2013

8. Queen Empress v. Kader Nasyer (1896) ILR 23 Cal 604

Shah

9. Rambharose v. State of Madhya 1974 M.P.L.J. 406

Pradesh

10. Sat Paul v. Delhi Administration AIR 1976 SC 294

11. State of UP v. Ramesh Prasad AIR 1996 SC 2766

Mishra and ANR.

12. Sukhram v. State of Madhya AIR 1989 SC 772

Pradesh

13. T.N. Lakshmaiah v. State of (2002)1 SCC 219

Karnataka
 14. Yusuf v. State of U.P. 1973 Cr.LJ 1220

III. LIST OF BOOKS

1. RATANLAL AND DHIRAJLAL , THE INDIAN PENAL CODE , 1860 (30 TH EDITION )
2. Dr. AVATAR SINGH , PRINCIPLES OF THE LAW OF EVIDENCE ( 24TH EDITION )
3. R.V. KELKAR’S , CRIMINAL PROCEDURE (7TH EDITION )

IV. LIST OF INTERNET SOURCES

1. https://www.manupatra.com
2. https://www.scconline.com
 ( C). STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Session Court of Wellington , Tamil Nadu under the Section
26 read with Schedule 1 of the Code of Criminal Procedure, 1973 . The Appellant most humbly and
respectfully submits to the jurisdiction of the Hon'ble Session Court of Wellington, Tamil Nadu.
 (D) STATEMENT OF FACTS

1. On dated 25th February 2016, Lalit, aged 29, S/O- Late Vijay. R/O 54/3- Apartment. Wellington
(a town in Tamil Nadu) India. Sushmita, aged 24, D/O- Robin, R/O- Greater Colony, Wellington,
were married according to their religious rituals. Their marital life was going smoothly. On some
occasions they used to have few verbal quarrels with each other but they reconciled soon after the
verbal fight.
2. Two years after the marriage Sushmita gave birth to a baby girl on 4th September 2018. The girl
was named as Renne. After few months of the birth of Renne. Sushmita observed certain changes
in the behaviour of Lalit. He started behaving in a rude way and he usually becomes violent on
every petty issue without any reason. Initially Sushmita did not took the matter in a serious way
but when the violent character of Lalit continued, Sushmita took her husband Lalit to the doctor
named Alfred, who was a psychiatrist. The doctor advised Lalit to have control over anger and to
take certain medicines. The doctor diagnosed him to be suffering from first stage of Bipolar
Mood Disorder.
3. In spite of the medical treatment the violent behaviour of Lalit continued to exist. One day, when
Lalit was in a relaxed mood, Sushmita conveyed him that she will leave him and will ask for
share in his property if he does not improve his behaviour as she did not want her child to get
affected. Despite of clear statement by Sushmita, there was no major change in behaviour of
Lalit.
4. On dated 5th December 2020 at 9 PM, loud noise of fighting, crying and shouting was coming
from the house of Lalit. On hearing the cry Daniel who was the neighbour of Lalit went in the
house and found Sushmita lying unconscious on the floor pooled in blood with various injuries on
her body. At that time Daniel saw Lalit hiding a 7 inch Iron Axe in the garden. Thereafter Daniel
called the police and Sushmita was taken to government hospital whereby she was treated by Dr.
Andrew. Lalit was arrested by police on the same day and was kept in police custody.
5. On 7th December. 2020 Sushmita regained her consciousness and her statement was recorded by
Jaison SHO of Wellington Police Station. In her statement she told to the police that on 5th
December at 9 PM Lalit came home and started fighting with her in a violent way and when she
resisted Lalit attacked him with axe kept in the garden.
6. On 8th December, 2020 Sushmita died because of the injury in her lower abdomen which proved
fatal. Renne the daughter of Lalit and Sushmita was sent to Government Child Care Centre.
7. On the basis of the statement of Daniel and the dying declaration of Sushmita FIR was lodged
against Lalit in Wellington police station. During interrogation Lalit stated that he was
unconscious at the time when Sushmita was attacked. He told to police that when he regained his
consciousness he found Sushmita lying on the floor and axe in his hand. He told to the police that
he did not know from where the axe came and he also stated that he did not know how Sushmita
died.
8. Final Report was submitted on 3 April, 2021 in which Lalit was charged for murder of Sushmita .
 (E) ISSUES RAISED

1. Whether sufficient ground of legal insanity exists so as to exonerate the accused from liability of
murder.

2. Whether the burden of proof of legal insanity on the part of Defence is at par with burden of proof on
part of Prosecution.

3. Whether the dying declaration in this case admissible against Lalit.

 ( F ) SUMMARY OF ARGUMENTS

I. WHETHER SUFFICIENT GROUNDS OF LEGAL INSANITY EXISTS SO AS TO

EXONERATE THE ACCUSED FROM LIABILITY OF MURDER .

It is humbly submitted Before The Hon'ble Session Court of Wellington that the respondent has prima
facie failed to rebut the statutory presumption of absence of circumstances, bringing his case u/s 84 of the
Indian Penal Code, 1860. So also, he has failed to establish the fact that, at the time of commission, he
was labouring under the influence of unsoundness of mind, which has impaired his cognitive faculties to
such an extent, that he was unable to know the nature of his act.

II. WHETHER THE BURDEN OF PROOF OF LEGAL INSANITY ON THE PART OF

DEFENCE IS AT PAR WITH BURDEN OF PROOF ON PART OF PROSECUTION .

It is humbly submitted Before The Hon'ble Session Court of Wellington with reference to the facts of the
instant case, it is submitted that the prosecution has proved the guilt of the accused beyond reasonable
doubt and the plea of the accused taken in his defense does not even stands probabilised from the
materials on record.

III. WHETHER THE DYING DECLARATION IN THIS CASE ADMISSIBLE AGAINST LALIT.

A Dying Declaration can form sole evidence if the Court finds it to be true and voluntary under Section
32(1) of the Indian Evidence Act, 1872. If the Declaration is accepted then it needs no further
corroboration to convict the accused. Declarationwhich is not the result of tutoring, prompting or
imagination is admissible in the Court.
 ( G) ARGUMENTS ADVANCED

I. WHETHER SUFFICIENT GROUNDS OF LEGAL INSANITY EXISTS SO AS TO

EXONERATE THE ACCUSED FROM LIABILITY OF MURDER .

It is humbly submitted before the Hon'ble Court that crux of the instant matter rest solely on the
determination of one prime issue by this appellate Court, i.e., whether Bipolar Mood Disorder can be
taken as a plea of insanity or unsoundness of mind as defined U/S 84 of the Indian Penal Code, 1860, to
neutralize the criminal liability. Section 84 of the Indian Penal Code, 1860 states as herein below cited-

"Nothing is an offence which is done by a person, who at the time of doing it by reason of unsoundness of
mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to
law."

It is submitted that, since the accused committed an act which is both wrong as well as contrary to law,
and moreover he has failed to supply reliable evidence to establish the fact that he was not capable of
understanding the nature of the act at the time of its commission, therefore it cannot be concluded that the
accused would be exempted of criminal liability availing the defense of Bipolar Mood Disorder in lieu of
unsoundness of mind.

Deficiency Of Will Due To Weak Intellect Of The Accused Has Not Been Fully Established.

It is most humbly submitted before the Hon'ble Court that every man is presumed to be sane and to
possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved, and to
establish a defense on ground of unsoundness of mind, it must be clearly proved that, at the time of
committing the act, the party accused was laboring under such a defect of reason, from disease of the
mind, as not to know the nature and the quality of the act he was doing, or, if he did know it, that he did
not know he was doing what was wrong. In the matter in hand, the defence has prima facie failed to rebut
the presumption of absence of circumstances that will bring the act of the accused under the ambit of
general exception. The deposition of defence witness though establish the fact that the accused is
suffering from the Bipolar Mood Disorder, but ipso facto has failed to raise even a reasonable doubt that
the accused at the time of offence was labouring under such a disorder.
It is furthermore submitted that, every person, who is mentally diseased is not ipso facto exempted from
the criminal liability, and to get the benefit of Section 84, I.P.C.. the accused must establish that at the
time of committing the act, the party accused was laboring under such a defect of reason, from disease of

1
Black‟s Law Dictionary, 826 (7th ed. 1998) ,“Nothing is an offence which is done by a person who, at
the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or
that he is doing what is either wrong or contrary to law” , (1843) 10 Cl. & F. 200 : 8 E.R. 718
the mind, as not to know the nature and the quality of the act he was doing, or, if he did know it, that he
did not know he was doing what was wrong.

PLEA OF UNSOUNDNESS OF MIND AS A STATUTORY DEFENSE

Section 84 of the Indian Penal Code, 1860 deals with the acts of a person of unsound mind and mandates
interalia-
"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness
of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary
to law,

It is humbly submitted that as to insanity, it has been observed in Halsbury's Laws of England, that
"where it can be shown that a person at the time of his committing or omitting an act, the commission or
omission of which would otherwise be criminal, was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the act or omission or as not to know that
what he was doing was wrong then such a person is not in law responsible for his act." It is also submitted
that accused's duty under Section 84 of the Indian Penal Code, 1860 is two fold i.e., initially he must
establish that at the time of committing the act, he was non composo mentis not of sound mind. In the
second place, he must prove that the said unsoundness of mind was of a degree and nature to fulfil one of
the tests as laid down in the aforesaid provision, namely, that by reason of such unsoundness of mind he
was incapable of knowing the nature of the act or that he was doing what is either wrong or contrary to
law.
In the light of the facts in record of the instant matter, it is submitted that the deposition of PW 6, merely
establishes the fact that the alternate personality of the accused is violent and volatile, and which in no
sense have an effect of causing, such mental disorder as will debar the accused from knowing the
consequences of his act. Furthermore, Section 84, I.P.C., has received strict interpretation and is
considered governing in only those cases where the cognitive faculties of the accused are completely
impaired."

Accused's mental faculty at the time of occurrence was that of a reasonable and prudent man.

It is humbly submitted that, in case where the accused takes the plea of unsoundness of mind, it must be
clearly proved that at the time of the committing of the act, the party accused was labouring under such a
defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing,
or, if he did know it, that he did not know he was doing what was wrong.

In Sheralli Wali Mohammed v. State of Maharashtra, it was held that it must be proved clearly that, at
the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of
either knowing the nature of the act or the acts were either morally wrong or contrary to law.
With reference to the dictum of Hon'ble Supreme Court in Debyabhai Chhaganbhai Thakkar v. State
of Gujarat it is most humbly submitted that when a plea of legal insanity is set up, the Court has to
consider whether at the time of commission of the offence, the accused, by reason of unsoundness of
mind, was incapable of knowing the nature of the act or that he was doing that was either wrong or
contrary to law. The crucial point of time for ascertaining the state of mind of accused is the time when
the offense was committed. Whether the accused was in such a state of mind as to be entitled to the
benefit of Section 84 of the Indian Penal Code, 1860 can only be established from the circumstances
which preceded, attended and followed the crime."

So also, in, Amrit Bhushan Gupta v. Union of India and Ors", it has been held that unless the Court
comes to the conclusion that the accused was insane, at the point of time he committed the offence, he
cannot be absolved of the responsibility of the offence, even if it is found by the Court that he was insane
either earlier or in the later point of time of the commission of offence.
Since in the instant case the accused has prima facie failed to rebut the statutory presumption that at the
time of the commission of the act he was suffering from such a mental disorder, due to which he was
incapable of knowing the nature or consequences of his act or that he was doing what was either wrong or
contrary to the law hence, the benefit of Section 84 must not accrue to the accused.
It is submitted that, mere abnormality of mind, partial delusion, irresistible impulse or compulsive
psychopathie behaviour, affords not protection U/S 84 of the Indian Penal Code, 1860. So also, mere
eccentricity or strange behaviour or a mental set-up not amounting to insanity as known to the law, could
not absolve a person of consequences of his act.

Evidently, the Hon'ble Supreme Court in the case, State of M.P. v. Ahmadulla. held that, to earn
exemption U/S 84, I.P.C., the defence has to prove insanity of the accused at the time of the offending act.
Pursuant to the facts in record, it is submitted that, in the instant case there is not a single positive
evidence, as to the deferred mental condition of the accused at the time of commission of the offence.
The fact that, on former occasions he had been subject to insane delusions or had suffered from
derangement of mind and subsequently he had behaved like a mentally deficient person, is not per se
sufficient to bring his case within the exemption. So far as section 84, I.P.C. is concerned, the court is
only concerned with the state of mind of the accused at the time of the commission of the offence.

In a very similar case of, Lanimohan Das v. Union Territory of Manipur, wherein the evidence
established by reference only showed that the appellant at times was of unsound mind, but he had lucid
intervals. There was nothing to show that at the time of the commission of the homicide in question, the
appellant was of unsound mind, and that by reason of that unsoundness of mind, he was incapable of
knowing the nature of his act, it was held that-

".....the appellant was capable of knowing the nature of his act. That being so he failed to discharge the
burden of bringing his case within the exception as enumerated under Section 84 of the Indian Penal;
Code, 1860."

In the instant case even though, the nature of the alternate personality of the accused, was violent and
erratic, the defence of legal insanity cannot be relied on his previous character or behaviour.

Statutory presumption as to nonexistence of circumstances, bringing the case within an exception.

It is humbly submitted that, Section 105 of the Indian Evidence Act, 1872, elucidate an exception to the
general rule whereby in a criminal trial, the burden of proving everything necessary to establish the
charge against the accused beyond all reasonable doubt, rests on the prosecution. 2
According to the provision, the burden of proving existence of circumstances bringing. the accused within
any of the General Exceptions, enumerated in the Indian Penal Code, 1860 shall be on the accused, and
the Court shall prima facie presume the absence of such circumstances. 3

Section 105, of the Indian Evidence Act, 1872, states as herein below cited-

"When a person is accused of any offence, the burden of proving the existence of circumstances bringing
the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any
special exception or proviso contained in any other part of the same Code, or in any law defining the
offence, is upon him, and the Court shall presume the absence of such circumstances."
With reference to the facts of the instant case, it is submitted that the prosecution has proved the guilt of
the accused beyond reasonable doubt and the plea of the accused taken in his defense does not even
stands probabilised from the materials on record.
Neither, the deposition of PW I or that of PW 4 conceives a rebuttal of the aforesaid presumption, nor that
of PW 6 establishes the fact, that at the time of commission of the offence, the accused was labouring
under the influence of unsoundness of mind.
Hence, it shall be construed from the facts in record that the accused hus ipso facto failed to rebut the
statutory presumption of absence of circumstances bringing his case U/S 84 of the Indian Penal Code,
1860 and hence, the criminal liability charged upon him must not be under any circumstances,
whatsoever, be exempted.

Medical Insanity vis-à-vis Legal Insanity.

It is humbly submitted that it is only the unsoundness of mind which naturally impairs the cognitive
faculties of the mind that can form a ground for exemption from criminal responsibility,
Furthermore, the law recognizes nothing but incapacity to realize the nature of the act and presumes that
where a man's mind or his faculties or ratiocination are sufficiently elear to apprehend what he is doing,
he must always be presume to intend the consequences of the action he takes.
So also, mere absences of motive for crime, howsoever, atrocious it may be, cannot, in the absence of
plea and proof of legal insanity, bring the case within Section 84 of the Indian Penal Code. 1860.
It is furthermore submitted that, there can be no legal insanity unless the cognitive faculty of mind is
destroyed as a result of unsoundness of mind to such an extent as to render the accused incapable of
knowing the nature of the act or that what he is doing is wrong or contrary to law,

Moreover in the instant case, the medical examination of the accused, might have established that, he is
suffering from Dissociative Identity Disorder, but the same cannot be construed to be a legal insanity.

2
Ashiruddin Ahmed v. Emperor, A.I.R. 1949 Cal. 182 at p. 183 : 5 C.W.N. 237 : 50 Cr. L.J.
255;Baswantrao Bajiraov. Emperor, A.I.R. 1949 Nag. 66 : I.L.R. (1948) Nag. 711 : 50 Cr.L.J.
181 ,Bhikariv. State of U.P., A.I.R. 1966 S.C. 1.3 rd Ed. (Simonds), Vol. 10 at p. 287, Dahyabhai v. State
of Gujarat, A.I.R. 1964 S.C. 1563
3
Digendra v. State 74, C.W.N. 231 at p.241 , Kalicharan v. Emperor AIR 1948 Nag. 20(2) at p.23 , M’
Naughten’s case [1843] 4 St Tr [NS] 487, (1973) 4 SCC 79
According to the medical science, inanity is another name for mental abnormality due to various causes
and existing in various degrees. Even an uncontrollable impulse driving a man to kill or wound comes
within its scope, But a man, whom the medical science would pronounce as an insane, might not be
legally insane, unless and until it must be clearly proved that, by reason of that unsoundness, he was
incapable of knowing the nature of his act.

It is therefore submitted that, the conviction and sentence to the accused has been unerringly passed by
the Learned Court below and that the same shall not be set aside.

II. WHETHER THE BURDEN OF PROOF OF LEGAL INSANITY ON THE PART OF

DEFENCE IS AT PAR WITH BURDEN OF PROOF OF PROSECUTION?

It is most humbly submitted before the Hon'ble court that the order of Acquittal U/S 302 of the Indian
Penal Code, 1860, passed by the Learned High Court in the instant matter, is not tenable in the eve of law,
as the Learned Court helow has not very well appreciated the facts and evidences of the instant case and
has not passed a proper order taking into consideration the fact, that the prosecution has proved the case
beyond all reasonable doubt, thereby ruling out every possible hypothesis, which stands against the
innocence of the accused and hence, acquittal of accused must be questioned when same is proved by
prosecution beyond reasonable doubt.

That the Prosecution Has Proved the Case beyond All Reasonable Doubt

It is most humbly submitted before the Hon'ble court that in all criminal cases the prosecution is required
to give satisfactory proof of the corpus delicti, i.e., it must prove that the deceased was murdered. The
prosecution has then to prove that the accused is the person who murdered the deceased and no one else.

In Miller v. Minister of Pensions, while examining the degree of proof required in criminal cases, it has
been held that: "That degree is well stated. It need not reach certainty but it must reach high degree of
probability. Proof beyond reasonable doubt does not mean proof beyond shadow of a doubt. The law
would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If
the evidence is so strong against a man as to leave only a remote possibility in his favour which can be
dismissed with a sentence "of course, it is possible but not in the least probable," the case is proved
bevond reasonable doubt.
In the light of the facts in record of the instant matter, it is humbly submitted that the chain of
circumstances when knitted together, give rise to merely only conclusion that it is the accused who has
committed the murder of the deceased and the Learned Court below has not committed any error in
convicting the accused. It is also submitted that, when it is held that a certain fact is proved, the question
arises whether the fact leads to the inference of guilt of the accused or not, and in dealing with this aspect
of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only
if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with the
hypothesis of his guilt.
Prof. Wigmore in his "Classic Treatise on Evidence","highlights the difficulties in ascertaining how
convinced one must be to become convinced beyond a reasonable doubt.
He says that "the truth is that no one has invented or discovered a mode of measurement for the intensity
of human belief. Hence, there can be as yet no successful method of communicating intelligibly, a sound
method of self-analysis for one's belief. And yet the choice of the standard of proof makes the
difference."4

The standard that must be met by the prosecution's evidence in a criminal prosecution. must be of such a
nature that no other logical explanation can be derived from the facts except that the accused has
committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

It is humbly submitted that, if after distinguishing the chaff from the grain, the essential thread of the
prosecution case is proved, conviction would definitely follow.
It is humbly submitted that Justice Krishna Iver was critical of the postulate that public accountability is
one of the most important responsibilities of the judiciary and if the accused person is acquitted on the
basic of every suspicion or doubt then the judicial system will lose its credibility before the community.
Therefore, with specific reference to the facts in record, it is most humbly submitted that the prosecution
has duly discharged its duty of proving his case beyond all reasonable doubt and there resides no room of
doubt or suspicion on the duty of prosecution which infer that the crime has been committed by none
other than the accused .

III. WHETHER THE DYING DECLARATION IN THIS CASE ADMISSIBLE AGAINST

LALIT.

It is humbly submitted before the Hon'ble Session Court that the Dying Declaration should be admitted.
In the present case Sushmita (deceased) had given the declaration on 7th December 2020, to Jaison SHO
of Wellington Police station that she is in this situation because of Lalit (accused). This evidence is in
itself sufficient.
The paramount consideration of the Court should be to avoid miscarriage of Justice. A Miscarriage of
justice which may arise from the acquittal of guilty is no less than from conviction of innocent.
This is based on the maxim 'nemo mariturus presumuntur mentri i.e. a man will not meet his maker with
lie on his mouth. The Indian law recognizes the fact that 'a dying man seldom lies" or "truth sits upon the
lips of a dying man. A Dying Declaration is given special weightage as per Section 32 of the Indian
Evidence Act, 1872 as truth sits on the lips of a dying man.

A "Dying Declaration" is a statement, written or oral, of relevant facts made by a person who is dead."
The Court attaches intrinsic value of truthfulness to it. The statement, if voluntarily made and established
not to be an attempt to cover up the truth, can be made the basis of conviction. A Dying Declaration made
by a person on the verge of his death has a special sanctity as that solemn moment a person is most
unlikely to make any untrue statement."

4
AIR 1955 SCC 1563 , Sarju Merandey v. State of Bihar , (1978) 26 B.L.J.R. 267 at pp. 272-273 (1981)
SCC (Crl) 516
In the case of Ram Bihari Yadavv. State of Bihar & Ors.It was held that Dying Declaration. is
substantive evidence and like any other substantive evidence." Hence the declaration given by Captain is
admissible in the Court. It is important for the Court to note that this rule applies to written or verbal
statements of relevant facts made by a person-
Who is dead and are relevant5
When it relates to the cause of death or as to any circumstances of the transaction which resulted in his
death in cases in which the cause of the persons death comes 10 into question. 6

There should be a direct nexus between the circumstances and the Dying Declaration. It is admissible
either such statement should relate:
To the cause of his death, or
It should relate to any of the transaction or circumstances which resulted in his death."
In the present case both the conditions are fulfilled it was made by a person who is now dead and was
clearly relating to the cause of his death or circumstances that resulted in her death. Therefore, it is
admissible as a Dying Declaration.
Dying Declaration has a great sanctity in the Court because of two reasons; Firstly, the victim is generally
the only principal eye-witness to the crime; secondly, sense of impending death creates a sanction which
is equal to obligation of an oath. There is no hard and fast rule to judge the authenticity of a Dying
Declaration. The same must be judged in accordance with the circumstances of each case depending upon
many factors which would vary with each case. It has also been recognized and established by the
Supreme Court that there is no format as such of a Dying Declaration."

In the present case the deceased has given her declaration on 7th December,2020 and has died on 8th
December and she did not gain conscious after giving the declaration, which clearly shows that it was his
Dying Declaration which is admissible, This clearly shows that the declaration given by the deceased is
concrete proof to show that the accused is completely liable and should be held liable for the same.
Clause (1) Section 32 of the evidence Act makes the statement of person who has died relevant only when
that statement has been 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. Even in the present case the declaration is made regarding to
the cause of death.

Even the Supreme Court in the case of Laxmi v. Omprakash held that: The law is well settled that the
Dying Declaration is admissible in evidence. The adminissibility is founded on principle of necessity. A
Dying Declaration, if found reliable, can form the basis of conviction. Even in the present case the Dying
Declaration should be admissible as it is evidence which clearly proves that accused has murdered
Captain Shiv Singh Bedi. Hence, this is a settled rule that a valid Dying Declaration should be admitted in
the Court of law. The statement made by a deceased person as to the cause of his death, or as to any of the
circumstances of the transaction which results in his death, is admissible in evidence. Whether made
under the expectations of death or not is of no value to the Court.

In the case of Khushal Rao v. State of Bomboy, it was held that under Section 32, when a statement is
made by a person, as to the cause of death or as to any of the circumstances which result in his death, in

5
(1974) 2 Cr.L.J. 1186 at p. 1187
6
T Chettiar v. Poonnammal , 1966 Cri.L.J.1149 : AIR 1966 Mad 363
cases in which the cause of that person's death comes into question, such a statement, oral or in writing
made by the deceased to the witness is a relevant fact and is admissible in evidence. 19
There is no hard and fast rule rule when a Dying Declaration should be accepted, but if the Court after
taking everything into consideration, is convinced that the statement is true, it is its duty to convict,
notwithstanding that there is no corroboration in the true sense. The Court must, of course, be fully
convinced of the truth of the statement, and naturally, it could not be fully convinced if there were any
thing in the surrounding circumstances to raise suspicion as to its credibility. The Court took a view that
under Indian law, for Dying Declaration to be admissible in evidence, it is not necessary that the maker of
the statement at the time of making the statement should be under shadow of death and should entertain
the believe that his death was imminent. The expectation of imminent death is not the requirement of law.

Hence it is humbly submitted before this Hon'ble Court that Dying Declaration given by the deceased is
admissible and creditworthy.
 PRAYER

Therefore, in the lights of facts stated, issues raised, arguments advanced and authorities cited, it is most
humbly prayed and implored before the Hon'ble Session Court of Wellington, that it may graciously be
pleased:

1. To allow the appeal, and

2. To overrule the order of acquittal and sentence u/s 302 passed by the Learned Court below and pass an
order in favour of the appellant, and

3. Pass any other order it deems fit in the interests of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Place:

s/d-

Date:

Moot Counsels For Appellants