MEMORIAL ON BEHALF OF THE DEFENSE

BEFORE THE HON’BLE COURT OF SESSION, MADHYA PRADESH

-IN THE MATTER OF-

State of Madya Pradesh…………………………………………Prosecution

V.

Vicky Pandey……………………………………………………...Defense

FOR OFFENCE CHARGED UNDER SECTION 302 OF THE INDIAN PENAL

CODE, 1860

MOST RESPECTFULLY SUBMITTED,

COUNSEL APPEARING ON BEHALF OF THE DEFENSE
 Statement of Jurisdiction
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 of the Code of
Criminal Procedure, 1973, which reads as:-

“177. Ordinary place of injury 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 offences triable in 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”
 Facts in Issue
1. Aman Singh, hailing from a family of medical professionals in Indore, aimed to pursue

a medical career despite falling short of clearing AIIMS. He secured admission to

HMT Medical College, Bhopal, Madhya Pradesh. His roommate, Vicky Pandey,

demonstrated disruptive behaviour due to alcohol abuse. Aman excelled academically,

gaining popularity and serving as the class representative.

2. Senior students Mayank and Sahil engaged in severe ragging, subjecting junior

students to physical and psychological torment, including Aman. Despite complaints to

the college authorities, no action was taken initially.

3. Aman's suffering culminated in a suicide attempt, prompting the college to establish an

anti-ragging committee. Mayank and Sahil were fined, resulting in a temporary

reduction in ragging incidents.

4. Aman developed an intimate relationship with second-year student Ragini, causing

tensions with Vicky, who also harboured feelings for her. Ragini's waning interest in

Aman contributed to his depression and alcohol misuse.

5. Vicky, Mayank, and Sahil accused Aman of instigating complaints against them and

assaulted him, leading to injuries. Intervention by the warden and subsequent inquiry

followed.

6. Aman's distress intensified upon witnessing Ragini with another individual. On

September 29, 2013, Aman was discovered deceased in his room, apparent suicide.

Investigations uncovered bloodstains and footwear marks in his room, with entries in

Aman's diary indicating distress caused by seniors and fear of Vicky.

7. Initially deemed a suicide by police, Aman's parents and friends alleged foul play,

resulting in charges against Mayank, Vicky, and Sahil. Postmortem determined

asphyxiation as the cause of death, with the accused professing innocence but being

detained.
 Issues

1. Whether The Charges Under Penal Law Implicated Upon The Accused (Mayank,
Vicky, and Sahil) Is Valid And Justiciable?

2. Whether The Accused (Mayank, Vicky, And Sahil ) Can Be Charge For Common
Intention, As Per Section 34 of IPC?
 Summary of Arguments

1. Whether The Charges Under Penal Law Implicated Upon The Accused
(Mayank, Vicky, and Sahil) Is Valid And Justiciable?
It is humbly submitted before the Hon’ble court that the section 302 r/w section 34 of
IPC is not justiciable, as per the statement of Mayank and sahil they were not present
at the time of incident. At first police concluded the case by stating that it was suicide
due to the pressure of parent and friends police register the case and charged them
under the section 302 r/w 34 and section 326 without a proper investigation.

2. Whether The Accused (Mayank, Vicky, And Sahil) Can Be Charge for Common
Intention, As Per Section 34 of IPC?
It is humbly submitted before the Hon’ble court that the charge of common intention
cannot be drawn as it is crucial to recognize that it involves a pre- planning, common
goal of accused, section 34 emphasizes collective responsibility, when criminal act is
committed with a shared intention, challenging the convention notion of individual
culpability.
 Arguments Advanced

False Allegations and Validity of Charges:

In State of Rajasthan v. Teja Ram (2016), the Supreme Court emphasized the
importance of assessing the credibility of witness testimony, particularly in cases
where identification of suspects is pivotal. The witness, a hostel watchman, claimed to
have seen Vicky and three unidentified men, resembling Mayank, Vicky, and Sahil,
entering and leaving the hostel around the time of the incident. However, the witness's
statement lacks credibility due to inconsistencies and vagueness. The court in Ramesh
v. State of Maharashtra (2012) emphasized that witness testimony should be clear,
consistent, and corroborated by other evidence to be deemed reliable. The witness's
inability to positively identify the three men accompanying Vicky casts doubt on the
accuracy of his observations. Additionally, the witness's estimation of the duration of
their presence in the hostel lacks precision, further diminishing the reliability of his
testimony.

The defence further strengthens its argument by presenting additional evidence. The
accused were asked to undergo a narco-analysis test, which was inconclusive, and the
DNA report of Mayank and Sahil came out negative. This lack of incriminating
evidence undermines the prosecution's claim of common intention among the
accused. Additionally, Vicky's refusal to submit to the narco-analysis test and blood
test, invoking Article 20 (3) of the Constitution of India, cannot be construed as
evidence of common intention. Furthermore, the mobile records of the accused
showed their location at Elantra mall between 11:15 pm to 2 am, contradicting the
prosecution's assertion of their presence at the scene of the incident.

Moreover, while blood stains and footwear marks were discovered in Aman's room,
the defence argues that this evidence is inconclusive and fails to establish the
culpability of the accused beyond a reasonable doubt. Sahil's statement regarding the
loss of his phone on 28th September and his intention to lodge an FIR, further
supports the defence’s argument. Sahil's explanation demonstrates that he was
preoccupied with personal matters unrelated to the alleged offense, undermining the
prosecution's narrative of his involvement in the crime. This evidence suggests that
Sahil had no motive or intent to participate in any criminal activity on the night of the
incident.

Also, the broken Samsung Galaxy S4 mobile phone found under Aman's bed does not
directly implicate him in the alleged offense, as the presence of his belongings in the
room does not prove his involvement in the incident. Furthermore, the entries in
Aman's diary expressing distress due to his seniors, including Mayank and Sahil, and
his apprehension towards Vicky's unpredictable behaviour, do not conclusively link
the accused to the act of causing harm to Aman. These entries may reflect Aman's
emotional state but do not serve as definitive evidence of criminal intent or action on
the part of the accused.

Additionally, Vicky's recorded statement before the police, where he claimed to have
left his room at 11:30 pm to stay with his friend Ramesh, raises doubts about his
presence at the scene of the incident. The defence argues that Vicky's alibi, supported
by his friend Ramesh, undermines the prosecution's assertion of his involvement in
the alleged offense.

In light of these inconsistencies and uncertainties surrounding the witness testimony

and the evidence presented by the prosecution, the defence contends that the charges
under Section 302 read with Section 34 of the IPC lack sufficient merit and should be
dismissed. The defence emphasizes the principle of presumption of innocence and
asserts that the burden of proof rests with the prosecution, which has failed to
establish a compelling case against the accused.

The defence also contends that the charges under Section 302 read with Section 34 of
the IPC are untenable due to the absence of Vicky, Mayank and Sahil at the time of
the incident. As per the case of State of Punjab v. Jagir Singh (2003), the Supreme
Court emphasized the necessity of proving the presence of all accused individuals for
establishing common intention. In this context, the defence argues that since Mayank
and Sahil were not present during the alleged offense, the element of common
intention cannot be established against them.

Furthermore, in Rajender Singh v. State of Haryana (2004), the court emphasized the
need for a thorough investigation before framing charges under Section 302 of the
IPC. The defence highlights the fact that the police hastily concluded the case as
suicide without conducting a proper investigation, casting doubt on the validity of the
charges against the accused. This lack of due diligence by the authorities also
undermines the integrity of the case and questions the reliability of the evidence
presented by the prosecution.

Asphyxia is a condition where oxygen is interfered with, leading to failure to

eliminate carbon dioxide. It can be caused by environmental, pathological, chemical,
and mechanical factors. Mechanical asphyxia includes hanging, ligature,
strangulation, manual strangulation, smothering, gagging, chocking, and drowning.
The cause of death in a case like Narendra Singh's is asphyxia, but the cause is not
specified.

Suffocation is a form of asphyxia caused by deprivation of oxygen, either due to its

lack in the environment or obstruction of air passages. Homicidal smothering is
possible when the victim is incapacitated, weak, or in ill-health. The victim's mouth
and nose may be closed by a hand or cloth, or the face may be pressed into by a
pillow.

Autopsy results in signs of asphyxia, such as pale or white skin, cyanosis, saliva,
blood, and tissue cells. The head and face may show intense congestion, cyanosis,
petechial haemorrhages, blood ooze, tongue protruding, and Petechiae present.

Suffocation is a form of death resulting from exclusion of air from the lungs by means
other than neck compression. In cases of smothering, the face may be pale or
suffused, the eyes remain open, conjunctivae congested, and small petechial
haemorrhages. The mucus membrane is usually bright red, covered with bloody froth
and congested. The lungs are congested and the heart is often full of dark fluid blood.

Therefore, the defence asserts that the charges under Section 302 read with Section 34
of the IPC should be dismissed due to insufficient evidence and procedural
irregularities.

Charge of Common Intention under Section 34 of IPC: The defence argues against
the applicability of common intention under Section 34 of the IPC, emphasizing the
absence of pre-planning or shared goals among the accused. Referring to Barendra
Kumar Ghosh v. King Emperor (1925), the defence highlights the requirement of a
prior meeting of minds for establishing common intention. In this case, there is no
evidence to suggest that Mayank, Vicky, and Sahil had conspired or coordinated their
actions with a shared criminal objective. Additionally, Suresh v. State of U.P. (2001)
establishes that mere presence at the scene of the crime does not automatically imply
common intention. Each accused's actions were independent of the others, and there is
no evidence to suggest that they acted in concert to commit the alleged offense.
Therefore, the defence asserts that the charge of common intention under Section 34
of the IPC is unfounded and should be dismissed.

Plea of Alibi under Section 103 of Indian Evidence Act (IEA): The defence asserts
the applicability of the plea of alibi, citing Ram Narain v. State of U.P. (1974), where
the Supreme Court emphasized the importance of establishing the accused's absence
from the scene of the crime. In this case, Mayank and Sahil have provided alibi
evidence placing them at Elantra Mall during the incident, which is supported by
corroborative evidence. Nishi Kant Jha v. State of Bihar (1978) recognized the
significance of corroborative evidence in support of the alibi, further strengthening the
defence’s position. The defence argues that the alibi evidence presented by Mayank
and Sahil establishes reasonable doubt regarding their presence at the scene of the
crime and their involvement in the alleged offense. Therefore, the defence contends
that the plea of alibi should be considered by the court and the charges against
Mayank and Sahil should be dismissed based on their absence from the scene of the
crime.
 Prayer

Wherefore, it is respectfully prayed before this Hon'ble Court that:

1. The charges under Section 302 read with Section 34 of the Indian Penal Code against
the accused, namely Mayank, Vicky, and Sahil, be deemed unsustainable and
dismissed due to insufficient evidence and procedural irregularities.
2. The charge of common intention under Section 34 of the Indian Penal Code against
the accused be declared unfounded and dismissed, as the prosecution has failed to
establish a compelling case of shared criminal intent among the accused.
3. The plea of alibi presented by the accused, Mayank and Sahil, be considered valid and
accepted, given the corroborative evidence supporting their absence from the scene of
the alleged offense.
4. The invocation of Article 20(3) of the Constitution of India by the accused, Vicky, be
acknowledged, and his refusal to undergo narco-analysis and blood tests be deemed
within his constitutional rights.
5. Any other relief or remedy deemed just and proper by this Hon'ble Court be granted
in the interest of justice and fairness.