XAVIER INTRA-XLS TRIAL ADVOCACY COMPETITION, 2023

MEMORIAL ON BEHALF OF THE PROSECUTION

TEAM CODE: 48

XAVIER INTRA-XLS TRIAL ADVOCACY COMPETITION, 2023

BEFORE THE

IN THE MATTER OF

………………………………….APPELLANT

Versus
………………………………….APPELLANT

Versus
………………………. (PROSECUTION)

VERSUS

……………………………. (DEFENCE)

FOR THE OFFENCES CHARGED UNDER:

SECTION 302/376A of UNION OF DUSTAN PENAL CODE

UPON SUBMISSION TO THE HON’BLE ^ JUDGE

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XAVIER INTRA-XLS TRIAL ADVOCACY COMPETITION, 2023

MEMORIAL ON BEHALF OF THE PROSECUTION

MEMORIAL ON BEHALF OF THE PROSECUTION

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MEMORIAL ON BEHALF OF THE PROSECUTION

TABLE OF CONTENT

INDEX OF ABBREVIATIONS…………………………………………….….

INDEX OF AUTHORITIES……………………………………………….….

 CASES CITED
 STATUTES
 BOOKS REFERRED
 WEBSITES
 LEXICONS

STATEMENT OF JURISDICTION…………………………………….……

STATEMENT OF FACTS……………………………………………………

STATEMENT OF ISSUES……………………………………………………

SUMMARY OF ARGUMENTS………………………………………………

ARGUMENTS ADVANCED…………………………………………………

PRAYER……………………………………………………………………….

CHOICE OF WITNESS………………………………………………………

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MEMORIAL ON BEHALF OF APPELLANT

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TABLE OF CONTENT
MEMORIAL ON BEHALF OF APPELLANT
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TABLE OF CONTENT
MEMORIAL ON BEHALF OF APPELLANT
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TABLE OF CONTENT
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TABLE OF CON
LIST OF ABBREVIATIONS

 & And
 Art. Article
 Cr.P.C. Code of Criminal Procedure
 DW Defence Witness
 Ed. Edition
 IPC Indian Penal Code
 IC Indian Cases
 SC Supreme Court
 SCC Supreme Court Cases
 SCJ Supreme Court Journal
 Sec. Section
 v. Versus
 HON’BLE Honourable
 i.e. That is
 Ors. Others
 Vol. Volume
 I.O. Investigating Officer

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INDEX OF AUTHORITIES

 CASES CITED:

 STATUTES:

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

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

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

 BOOKS REFERRED:

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

2. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

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

4. I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, (6th Ed. 2002)

5. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

6. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)

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7. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

8. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

9. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

10. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)

INDEX OF AUTHORITIES

WEBSITES:

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

4. http://www.scconline.com

 LEXICONS:

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

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STATEMENT OF JURISDICTION

The Hon’ble Court exercises jurisdiction to hear and adjudicate over the instant matter under
Section 177 read with Section 209 of the Code of Criminal Procedure, 1973. The relevant
provisions are read herein as follows:

Section 177:
‘177. Ordinary place of inquiry and trial-
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.’

Read with Section 209:

‘209. Commitment of case to Court of Session when offence is triable exclusively by it-
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall-

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

(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

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RESPONDENTS HUMBLY SUBMIT THEMSELVES TO THE JURISDICTION OF THE

HON’BLE COURT

STATEMENT OF FACTS

For the sake of brevity, the material facts are placed herewith in the chronological
order:

1. Kavita Singh, a 21-year-old from the Girpur District was travelling from Bhedia to
Girpur on the 1st of March, 2023. She was found in an unconscious state in woods
near the Girpur Railway Station. She was taken to Government Medical College
Hospital, Girpur, where she succumbed to injuries around on 2nd of March, 2023.
2. During the investigation that was conducted by the police it was found out that the
accused, who had been a habitual offender and was previously convicted by Courts,
had attempted to sexually harass one Vanshika. This happened in the presence of the
victim.
3. In furtherance of an objection by the victim, the accused threatened both the women.
In consequence of this, they filed a complaint against the accused at the Police
Station; where the police registered an FIR against the accused for outraging the
modesty of the girl.
4. On the 9th of March, 2023 took the accused into custody. A comparison of DNA
Samples that were collected from the site of the crime and the victim's body were
compared with the suspect's samples; where various observations were made.
5. Further, on the basis of a written complaint filed by the father of the victim, Babu
Singh; the police took up an investigation the same and recorded the statements of the
witness.
6. The accused was presented in front of the Learned Chief Judicial Magistrate, where a
prima facie case was registered against the accused under section 302/376A of the
Union of Dustan Penal Code based on the statement of the witnesses and the material
facts.

The Police arrested the accused person and produced him before the Learned
Magistrate. From the statement of the witnesses and the material facts, a Prima
Facie charge has been established under Section 302/376A of the Union of Dustan
Penal Code against the accused person.

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And so, on
On important concerned facts.

ISSUES RAISED

ISSUE 1.

WHETHER AN APPLICATION FOR DISCHARGE OF THE ACCUSED IS

MAINTAINABLE OR NOT? IF SO, ON WHAT GROUNDS?

ISSUE 2.

ARE THERE SUFFICIENT GROUNDS FOR FRAMING OF CHARGES AGAINST THE

ACCUSED?

ISSUE 3.

CAN THE ACCUSED BE ACQUITTED FROM THE CHARGE OF S.302 DUE TO LACK
OF MENS REA?

ISSUE 4.

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WHETHER CIRCUMSTANCIAL EVIDENCE AND EXPERT OPINION IS SUFFICIENT

TO CONVICT THE ACCUSED FOR THE CHARGE OF MURDER?

ISSUES RAISED

ISSUE 5.

WHETHER THE OFFENCE COMMITTED BY THE ACCUSED TANTAMOUNT TO

THE RAREST OF RARE CASES AND SHOULD BE TRIED IN A FAST-TRACK
COURT?

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SUMMARY OF ARGUMENTS

ISSUE 1: - WHETHER AN APPLICATION FOR DISCHARGE OF THE ACCUSED

IS MAINTAINABLE OR NOT? IF SO, ON WHAT GROUNDS?

It is humbly submitted before this honorable court that

ISSUE 2: - ARE THERE SUFFICIENT GROUNDS FOR FRAMING OF CHARGES

AGAINST THE ACCUSED?

It is humbly submitted before this honorable court that

ISSUE 3: - CAN THE ACCUSED BE ACQUITTED FROM THE CHARGE OF S.302

DUE TO LACK OF MENS REA?

It is humbly submitted before this honorable court that

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SUMMARY OF ARGUMENTS

ISSUE 4: - WHETHER CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION

SUFFICIENT TO CONVICT THE ACCUSED FOR THE CHARGE OF MURDER?

It is humbly submitted before this honorable court that

ISSUE 5: - WHETHER THE OFFENCE COMMITTED BY THE ACCUSED

TANTAMOUNT TO THE RAREST OF RARE CASES AND SHOULD BE TRIED IN
A FAST-TRACK COURT?

It is humbly submitted before this honorable court that

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ARGUMENTS ADVANCED

1. WHETHER AN APPLICATION FOR DISCHARGE OF THE ACCUSED IS

MAINTAINABLE OR NOT? IF SO, ON WHAT GROUNDS?

It is contended before the Court that the application for discharge is not maintainable and the
court ought to reject the application based on the merits of the case. The contentions in this
regard are two-fold: [1.1] application for discharge should not be maintainable as the offenses
that the accused committed are cognizable in nature and [1.2] the accused would prove to be
a threat to society:

[I.I] application for discharge should not be maintainable as the offenses that the accused
committed are cognizable in nature

1. It is contended that the application so pending before the Hon’ble Court should not be
given discharge because the offenses that are committed by the accused are cognizable in
nature and are a threat to procedures to seek justice and there is a possibility of a miscarriage
of justice, from such circumstances and atmosphere. The atmosphere would be completely
unfit to ensure the proper delivery of justice, in case the application is accepted.

2. The present facts of the case state that the accused has been charged with the charging
provisions of Section 302 and 376A of the Union of Dustan Penal Code.

Section 302 of the Union of Dustan Penal Code states that “Whoever commits murder shall
be punished with death or imprisonment for life, and shall also be liable to fine.”

Section 376A of the Union of Dustan Penal Code states that “Whoever commits rape on a
woman up to twelve years of age shall be punished with death, or rigorous imprisonment for
a term which shall not be less than fourteen years but which may extend to imprisonment for
life which shall mean imprisonment for the remained of that person's natural life, and shall
also be liable to fine”

3. It is humbly submitted in front of the Hon’ble Court that the nature of offenses that the
accused are charged under are cognizable in nature; which would imply the fact that under
section 2(c) of the Code and are more serious and heinous. They not only affect the victim
but the society at large.

4. In the case of ‘Dr. J. Muralidhar Goud Ver. The state of A.P’ while dismissing an
application filed under Section 239 of the code the court observed that the given discharge
application for the provided case was correctly dismissed as there’s voluminous material was
collected by the investigating agency directly pointing out the complicity of the accused for
the alleged offenses. Therefore, if we look at the facts of the given case in hand, we can come
to conclude that there is sufficient evidence to prove the guilt of the accused as discussed in
the subsequent sub-issue.

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ARGUMENTS ADVANCED

5. Thus, it is humbly put forth that the discharge application made out under section 239 of
the Code be rejected as it would prove to be a threat to justice.

[I.II] The accused would prove to be a threat to society:

1. It is contended that the accused, Vivek Mitra if discharged as of the application under
Section 239 of the Code, would prove to be a threat to the society at large and may result in
him taking actions that are gnarly in nature.

2. As provided in the facts of the case and the witness statements recorded under Section 161
of CrPC, before the victim was subjected to the harsh incidents that took place, the accused
had not only attempted to sexually harass which included ‘cat-calling’ and ‘forcing himself’
on the friend of the victim to which the victim objected to; but also threatened both girls with
dire consequences of loss of limb and life, if they complained to the police. In furtherance to
this, the girls filed a complaint against the accused at the Police Station and the police
registered an FIR against the accused for outraging the modesty of the girl and the police
investigation was going on in this matter. Following the victim was subjected to the heinous
acts of murder and rape.

3. The above inference can lead us to a direct inference that in light of what the victim went
through if a discharge of the accused is made, there is an imminent threat that the friend of
the victim, might be exposed to and it is humbly put forth in front of the court that it is the
responsibility of the court to protect the citizens of the country.

4. In the arrest memo that had been police officers under the section of other features we can
observe that under the sections for habits the accused is described as ‘Arrogant, Rough, Hot
Headed’ by the police. Further, it is imperative to take note of the fact that the accused is a
habitual offender and has had a history of absconding. These two facts can play an important
role in determining that with such a percentage set by the accused, there is a high probability
that he would abscond if provided with an affirmative decision to the discharge application;
or worse commit a crime.

5. Therefore, in a case where the accused is discharged, he would prove to be a menace to not
only the victim’s friend but the society at large and should be kept under judicial custody
until a further decision by the court has been made.

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ARGUMENTS ADVANCED

2. ARE THERE SUFFICIENT GROUNDS FOR FRAMING OF CHARGES AGAINST

THE ACCUSED?

It is contended before the Court that there are sufficient grounds for framing of charges
against the accused and the court ought to do so based on the merits of the case. The
contentions in this regard are two-fold: [II.I] Evidence as observed as provided under the
autopsy report and the chargesheet and [II.II] The witness statements recorded under Section
161 of the CrPC-

[II.I] Evidence as observed as provided under the autopsy report and the chargesheet

1. It is contended that a close look at the autopsy report and chargesheet that has been
filed against the accused would prove the guilt of the accused based on direct
evidence.
2. The Autopsy report of the victims found under exhibit- D, states clear evidence of the
heinous acts of rape and abuse. When referred to the second injury it is observed that
Aspiration of a considerable amount of blood resulted in anoxic brain damage, arising
out of committing rape in the supine position. This thus proves the fact that the victim
was raped brutally before she was murdered. Further, the section referring to the first
injury states instances relating to multiple areas of hemorrhage which arise out of the
hitting of her head against a flat surface like a wall and the abraded contusion, two
injuries that caused the death of the victim.
3. A closer look at the chargesheet filed by the police against the victim shows a clear
collection of items relating to the crimes upon the victim. They found two pieces of
evidence namely- 1) collection of the DNA sample from the scene of the crime and
the victim’s body along with traces of semen which were found in her vulva and over
her clothes 2) the nails of the victim had traces of blood and also skim cells which
belonged to the accused.
4. Therefore, these result in being proven as direct evidence which points to the guilt of
the accused and proves that there are sufficient grounds for framing charges against
the accused.

[II.II] The witness statements recorded under Section 161 of the CrPC

1. It is contended in front of the Hon’ble Court that the systems of a witness under
Section 161 of the of the _______ directly paint a picture which would prove the guilt
of accused.
2. The witness ststaemnets would firstky incude the ststamnets made by rhe friend of the
victim who the accused atttempted to harras and also thretened with life and limb, as
discussed above,
3. Secondly, Mr. Alok Kumarw ho was a fellow passenger travelling through the train
had a first hand experience at the crime.As descrbibed by him, he heard loud
screamms, thuds and cries. Right after that he also saw a lady thrown out of the train

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vompartemntm, followed by a male jumping out of the train. In corelation to the facts
of the case we can make a direct inference of the fact that this lady was the victim and
the male rhe accused moments after tha crime had been committed which resulted in
the death of the victim.

ARGUMENTS ADVANCED

3. CAN THE ACCUSED BE ACQUITTED FROM THE CHARGE OF S.302 DUE TO

LACK OF MENS REA?

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ARGUMENTS ADVANCED

4. WHETHER CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION

SUFFICIENT TO CONVICT THE ACCUSED FOR THE CHARGE OF MURDER?

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ARGUMENTS ADVANCED

5. WHETHER THE OFFENCE COMMITTED BY THE ACCUSED TANTAMOUNT

TO THE RAREST OF RARE CASES AND SHOULD BE TRIED IN A FAST-TRACK
COURT?

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE
COURT MAY BE PLEASED TO:

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(1) Convict Mr.

AND MAY PASS ANY SUCH ORDER, OR OTHER ORDER THAT IT DEEMS FIT IN
THE INTEREST OF JUSTICE, EQUITY, AND GOOD CONSCIENCE. AND FOR THIS,
PROSECUTOR AS IN DUTY BOUND SHALL HUMBLY PRAY.

RESPECTFULLY SUBMITTED BY
COUNSELS ON BEHALF OF THE PROSECUTOR

CHOICE OF WITNESS

For prosecution witness,

1.

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