BEFORE THE COURT OF SESSIONS AT DURG, …€B SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT...

TC‐B

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015

BEFORE THE COURT OF SESSIONS AT DURG, XANADU

S.C. NO.111 OF 2015

STATE OF Xanadu

(PROSECUTION)

v.

1. Manohar & 2. Rahul

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 302, 465 READ WITH SECTION 34, 120-B & 109 OF THE BHARAT PENAL CODE, 1860 AND SECTION 66 & 66C OF THE INFORMATION AND

TECHNOLOGY ACT, 2005

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 i

MEMORANDUM FOR THE PROSECUTION TC-B

TABLE OF CONTENTS

Table of Contents i

List of Abbreviations ii

Index of Authorities iii

Table of Cases iv

Books iv

Websites v

Statues v

Statement of Jurisdiction vi

Statement of Facts vii

Statement of Charges viii

Summary of Arguments ix

Arguments Advanced 1

Issue-I

Whether the accused are guilty of Murder?

1

Issue-II

Whether the accused are guilty of Forgery?

10

Issue-III

Whether the accused are guilty of Computer Related Offences and

Criminal Conspiracy?

14

Prayer xi

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 ii


LIST OF ABBREVIATIONS

¶ Paragraph

¶¶ Paragraphs

A Acussed

AIR All India Reporter

All Allahabad High Court

BPC Bharat Penal Code i.e. Indian Penal Code

Cal Calcutta High Court

Cri LJ/ Cr LJ Criminal Law Journal

Cr.P.C. Criminal Procedure Code

Del Delhi High Court

DW Defence Witness

Ed. Edition

I.T. Act Information Technology Act

Mad Madras High Court

Bom Bombay High Court

Ori Orissa High Court

Raj Rajasthan High Court

n. Foot Note No.

PW Prosecution Witness

p. Page No.

r/w Read With

SC Supreme Court

Supp Supplementary

SCC Supreme Court Cases

SCR Supreme Court Report

Sec. Section

u/s Under Section

v. Versus

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 iii


INDEX OF AUTHORITIES

TABLE OF CASES:

Nayab Singh v. State of Rajasthan 2007(3) Raj 2077

State of Orissa v. Raja Parida 1972 Cr LJ 193 199 (Ori)

Madan Raj Bhandari v. State of Rajasthan AIR 1970 SC 436 : 1970 Cr LJ 519

Kishori Lal v. State of Madhya Pradesh (2007)10 SCC 797 : AIR 2007 SC 2457

Jabamalai Royappan In Re. 1981 LW (CR) 136

Santosh v. State of Madhya Pradesh AIR 1975 SC 654

State v. Savithri 1976 Cr LJ 37 (Mad)

Ashok Nivruti Desai v. State of Maharashtra 1995 I Cr LJ 826 (Bom)

N.M.M.Y. Momin 1971 Cr LJ 793 : AIR 1971 SC 885

Public Prosecutor v. Samasundaram AIR 1959 mad 373

Mohhamed Asif v. State of Uttaranchal 2009 SC

Santosh v. State of Madhya Pradesh 1975 Cr LJ 602 (SC)

Dr. Vimla v. Delhi Administration AIR 1963 SC 1572

Seva Ram v. State of Uttar Pradesh 2008 I Cr LJ 802 SC

State of Madhya Pradesh v. Desc Raj 2004 Cr LJ 1415 SC

Dr. S. Dutt v State of U.P. AIR 1966 SC 523

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 iv


Lalan v. State of Bihar 2003 Cr LJ SC

Aizaz v. State of U.P. (1008)4 Cr LJ 4374 (SC)

Mohhamed Arif v. State of NCT of Delhi (2011)13 SCC 621

N.V. Subarao v. State (2013)2 SCC 162

M.S. Reddy v. State Inspector of Police,

ACB Nellor

1993 Cr LJ 558 (A.P.)

Tamil Nadu v. Nalini 1999 Cr LJ 3124 (SC)

State of Himachal v. Krishanlal Pradhan AIR 1987 SC 773

LIST OF BOOKS REFERRED:

• HALBURY’s LAW of ENGLAND 4th Ed. Vol. II

• Cyber Crimes & Law by Dr. Amita Verma

• Information Technology Law and Practice, 3rd edition (Reprint 2012), Vakul

Sharma

• Criminal Law Cases and Materials, K D Gaur 7th edition, Lexis Nexis

• Law of Crimes, Ratan Lal and Dheeraj Lal, 34th edition 2014, Lexis Nexis

• Law of Crimes, K.D. Gaur 5th edition, 2014, Universals Law Publication

• Law of Evidence, Ratanlal and Dhirajlal 24th edition, Lexis Nexis Publication

• Kenny’s Outline of Criminal Law, 19th Ed.

• Supreme Court Yearly Digest 2014

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 v






LIST OF WEBSITES:

• www.courtnic.nic.in

• www.manupatra.com

• www.indiankanoon.org

• www.supremecourtofindia.nic.in

• www.judis.nic.in

• www.drugs.com

• www.medscape.com

STATUES:

• Indian Penal Code, 1860, Bare Act by Universals

• Indian Evidence Act, 1872 , Bare Act by Universals

• Criminal Procedure Code, 1973, Bare Act by Universals

• IT Act, 2000, Bare Acts by Universals

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 vi


STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with

Section 209 of the Code of Criminal Procedure, 1973.

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.’

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 vii


STATEMENT OF FACTS

1. Manohar (Mano) started living with his uncle, Karan, after the death of his parents. Mano

was a bright and studious boy and wanted to be a doctor. He got admission in TMC, a

reputed private medical college in 2011.

2. Dr. Deshpande took a keen interest in Mano, as he was bright and sincere student. Mano

would share all his problems with him.

3. Mano became friends with Rahul, a medical student who wanted to be a tech guru. Mano

would be eager to learn about technology through Rahul, in his free time.

4. Karan’s drinking habits were detested by his wife Devika and their son Raghav. Even

Mano exhorted Karan to give up drinking. But on the other hand, Mano provided

emotional support to Karan too and tended to his basic needs.

5. Fearing Mano’s welfare, due to the family’s hostile behaviour towards him, Karan got a

Rs. 2 Crore/- Insurance Policy in Mano’s name, and told about the same to Mano on 21st

May 2014.

6. On 3rd August, Karan experienced sudden chest and stomach pain. Mano tried contacting

Dr. Chaudhary, but in vain. Mano wrote the name of medicine Angispan and asked

Raghav to get it. Mano administered the drug via intravenous as Karan was in no

condition to swallow the tablet. Karan was quiet for half an hour but then suddenly

collapsed and died.

7. Mano said that he wasn’t aware of the sedatives that Karan had taken earlier. He meant to

save Karan from pain, as the medicines he administered were common and general.

8. After the preliminary investigation, the body was sent for post-mortem, and some

evidences were sent for forensic examination. Mano and Rahul were later arrested for

Karan’s murder. The matter is listed for hearing before the Sessions Court, Durg, Xanadu.

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 viii


STATEMENT OF CHARGES

CHARGE 1:

Manohar (Mano) has been charged under Section 302, 465 read with 34 and 120B of the

Bharat Penal Code relating to Murder, Forgery and Criminal Conspiracy; and under Section

66 & 66C of the Information and Technology Act, 2000 relating to Hacking with computer

system and Identity theft.

CHARGE 2:

Rahul has been charged under Section 302, 465 read with 34,120B and 109 of the Bharat

Penal Code relating to Murder, Forgery, Criminal Conspiracy and Abetment; and under

Section 66 & 66C of the Information and Technology Act, 2000 relating to Hacking with

computer system and Identity theft.

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 ix


SUMMARY OF ARGUMENTS

ISSUE I

WHETHER THE ACCUSED ARE GUILTY OF MURDER?

It is humbly submitted before this Hon’ble Court that the accused, Manohar (Mano) (accused

hereinafter referred to as A-1) and Rahul (co-accused hereinafter referred to as A-2) are

guilty of Murder under section (hereinafter referred to as u/s) 300 of the Bharat Penal Code,

1860 (hereinafter referred to as ‘BPC’), and therefore should be charged u/s 302 of the

‘BPC’. A-1 had the knowledge, intention and motive for killing Karan (hereinafter referred to

as the deceased) as he was the nominee with the Insurance Policy so, A-1 would be the

benefactor in case of the death of the deceased. A-2 had his personal interest attached with A-

1 so he abetted the act done by A-1 and is liable u/s 109, BPC. Thus, the accused A-1, saw

the perfect opportunity to strike and didn’t hesitate a bit before administering the drug

Angispan, via intravenous through a syringe with air bubbles in it, causing air embolism,

which can cause the heart to stop within minutes. While committing the said act the accused

A-1 had committed murder, thus fulfilling all the elements of Section 300, and rightfully

convicted u/s 302 and A-2 u/s 109 and 302 of the Bharat Penal Code.

ISSUE II

WHETHER THE ACCUSED ARE GUILTY OF FORGERY?

It is humbly submitted before this Hon’ble Court that the accused, A-1 and A-2 are guilty of

committing Forgery u/s 465 read with (hereinafter referred to as r/w) Sec 34, BPC which

states about ‘Acts done in pursuance of Common Intention’, of the Bharat Penal Code. Since,

they had the knowledge, intention and motive to do so as A-1 owed a debt to A-2. It was for

the repayment of this loan money that A-1 fraudantently was motived to transfer 2.50 lakhs

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 x


money from the deseased’s account without putting it to his knowledge. Furthermore, A1 had

written the name of the medicine that had to be administered to deceased, on Dr. Chaudhary’s

(DW-4) prescription, without his permission or knowledge, which adds to the offence of

forgery. They had an ill intention accompanied by an illegal motive. They have committed

the said act, thus fulfilling all the essential ingredients of Sec 465 r/w Sec 34 of the BPC.

ISSUE III

WHETHER THE ACCUSED ARE GUILTY UNDER COMPUTER RELATED

OFFENCES AND IDENTITY THEFT?


committing offences u/s 66 and 66C r/w Sec 43 of the Information and Technology Act, 2000

(hereinafter referred to as I.T. Act 2000. The accused have done the acts of ‘dishonestly’ and

‘fraudulently’ as mentioned u/s 66 of the I.T. Act, 2000. Furthermore they had also used the

keylogger to decrypt the deceased’s bank password and make unauthorized transactions of

money. This proves the criminal conspiracy u/s 120B, BPC. Hence all the ingredients of the

said sections are satisfied, and both the accused A-1 and A-2 are to be held guilty u/s 66 and

66C of the I.T. Act 2000, and Sec 120B, BPC.

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 1


ARGUMENTS ADVANCED

ISSUE-I

WHETHER THE ACCUSED ARE GUILTY OF MURDER?


Murder u/s 300, BPC, 1860, and therefore should be charged u/s 302 of the ‘BPC’. A-2 had

his personal interest attached with A-1 so he abetted the act done by A-1 and is liable u/s 109,

BPC. The matter of being accused with murder and abetment is being dealth in the present

issue (Issue I), while the charges and punishment for forgery and common intention will be

dealth in the subsequent issue (Issue II) and the charges and punishment for computer related

offences, identity theft and criminal conspiracy will be dealt with in the last issue (Issue III).

The essestials of a murder1 are intention, motive, knowledge2, Actus Reas resulting in either

the death or injury, have been proved beyond a reasonable doubt. Sec 299 corresponds with

Sec 300, B.P.C. 1860.3

Whereas, abetment4 constitutes of instigating, engaging in a conspiracy and intentionally

aiding a person to commit a crime. Abetment is complete when there is instigation or

engagement in a conspiracy to commit a crime. It is not necessary that the offence abetted

must be committed. It is only in cases of intentional aiding that the abettor would have to be

acquitted with the principal offender.5 Where the offence is committed in consequence of the

1 Sec 300, BPC. 2 Nayab Singh vs State of Rajasthan, 2007(3) Raj 2077. 3 State of Orissa v Raja Parida 1972 Cr LJ 193 199 (Ori). 4 Sec 107, BPC. 5 Madan Raj Bhandari v. State of Rajasthan, AIR 1970 SC 436: 1970 Cr LJ 519.



abetment but there is no provision for punishment of such abetment, the abettor is to be

punished alongwith the offender for the original offence.6

That, Halsbury Classifies Homicide 7 states as follows, “the term homicide is used to

describe the killing of a human being by a human being. Such a killing may be lawful or it

may be unlawful and criminal. Unlawful homicide includes murder man slaughter, death

by dangerous driving, killing in pursuance of a suicide pact and infanticide.”

It is humbly contended that the accused did have the motive, knowledge and intention to kill

the dceased and there was abetment of murder [I.1] commitment of murder [I.2.].

I.1. The accused did have the motive, knowledge and intention to murder and there

was abement of murder.

It is humbly contended before this Learned Sessions Court that the accused A-1 and

A-2 did have the motive, knowledge and intention to commit murder [A] and there

was abetment to murder [B]. Therefore, they should be charged u/s 302 and Sec 109,

BPC.

[A]. Motive, knowledge and intention to commit murder.

An act is intentional if it exists in idea before it exists in fact, the idea realizing

itself in the fact because of the desire by which it is accompanied whereas,

motive is the reason or ground of an action. In other words, intention is an

operation of the will directing an overt act, while motive is the feeling that

prompts the operation of a will, the ulterior of the person willing.8

6 Kishori Lal v. State of M.P., (2007) 10 SCC 797: AIR 2007 SC 2457 7 HALSBURY’S LAW OF ENGLAND 4th Ed. Vol. II Para 1151 p.613. 8 ¶4, p. 51 Lexis Nexis Seventh Edition, Criminal Law Cases and Materials, K D Gaur.



That on 1st August 2014 A1 had a heated argument with the deceased and his

wife regarding the non-payment of his college fees. The deceased accused A1

of being selfish and an insensitive brat; moreover, when A1 retorted back to

Devika, the deceased intervened saying that, A1 had no right to talk his wife in

such a disrespectful manner, which A1 felt wounded his self-respect. 9

Furthermore in his statements made to the Investigating Officer (herein after

refered to as I.O.) u/s 161 of the Cr.P.C. 1973, A1 said that, due to the

deceased’s drinking habits, he would often forget to transfer the money to

A1’s account regarding the college fee and the daily expenses, which had lead

to A1 being ridiculed in front of his classmates.10 This instance provides A1

with sufficient motive to carry out the offence u/s 302 of the I.P.C. 1860.11

That, in her statements made to the I.O. u/s 161 Cr.P.C. 1973, Devika

mentioned, how frequently A1 expressed his desire to be his own master.12

Moreover when the deceased informed A1 that, he had enough wealth to fend

for coming two generations, 13 A1’s ambition was fuelled with anger and

hatred which led him to feel that if the deceased had enough money why had

he put A1 on a stipulated amount for fees and expenses and obstructed his

desire to lead an opulent life.

On 2nd August when deceased asked A1 to transfer the amount for fees and

daily expenses from his (deceased’s) account, A1 transferred Rs. 2.5 lakhs/-

9 Case Details ¶18. 10 ¶1 Annexure-5. 11 Corroboratory Value u/s 157 Indian Evidence Act 1872. 12 ¶5 Annexure-5. 13 Case Details ¶ 15



instead of Rs. 2.25 lakhs/- that he usually did.14 This deceitful act by A1

proves the malice in this thoughts and action.

That, A1 had the knowledge of all the medicines that were prescribed to him

by Dr. Choudhary. In his statements made to the Investigating officer

(hereinafter referred to as I.O.) A1 said that, the doctor had given him strict

instructions to check whether the deceased was taking his medicines

properly. Furthermore A1 also said that, when the deceased’s condition

worsened, Dr. Chaudhary had prescribed strong medicines for him. 15

Secondly, as per the Brief Facts of the case by the I.O., the deceased did not

like anyone’s interference regarding his medication, expect Mano’s. All these

things clearly state that Mano had the knowledge of whatever medication was

being administered to the deceased.

That, the expression “ordinary course of nature” means normal course or due

course and at best it may envisage a high probability of death.16An intention to

kill is not required in every case; knowledge that the natural and probable

consequences of an act would be death will suffice for a conviction under

section 302 of IPC.17 Knowledge is a strong word and imports a certainty and

not merely a probability. Intention is a subjective which is not facie present in

any conduct. In all cases circumstances surrounding the culpable homicide

lead to the inference that the accused intended to cause death.

That, all the above mentioned instances clearly establish the evil intention of

A1 beyond reasonable doubt.

14 Case details ¶ 20. 15 ¶1 Annexure – 5 16 Jabamalai Royappan In Re. 1981 LW (CR) 136 17 Santosh v State of M.P. AIR 1975 SC 654



That, somewhere A2 expected that, when he had the money, he helped A1

financially whenever required, and hence he expected the same monetary help

from A1, if he were to get the Insurance money. A2 started linking his

pecuniary interest to the deceased’s death. Thus, when he came to know about

the Rs. 2 Crore Insurance Policy of which A1 would be the benefactor in case

of the deceased’s death. A2 saw a golden opportunity and started sowing the

seeds in A1’s mind as to how rich he would be, which he always wanted to be,

in case of the deceased’s death. Furthermore as stated earlier, A2 would

transfer money to his account from his father’s account, without his father ever

knowing about it.18 Such conduct on A2’s behalf clearly indicates that he was

an dishonest and a fraudulent person, as given u/s 25 of I.P.C. 1860, who could

go as far as to cheating his own father, when his own monetary interests were

involved and hence proves his intention beyond reasonable doubt.

[B]. Abetment to murder.

That, A2 was a medical student, who actually wanted to be a tech guru. His

technological skill was of that expertise, that he would hack into the

attendance bio-metric system and manipulate the attendance records and

moreover he would transfer money to his account from his father’s account,

without the latter ever knowing about it.19 Furthermore, in her statements

made to the I.O. u/s 161 Cr.P.C. 1973, stated in Annexure-5, Devika said that

it was A2’s company which made A1 want to be rich and his own master as

soon as possible, which resulted in such unfortunate events.

18 Case details ¶ 6 19 Case details ¶ 6



That, A2 was a frequent visitor to A1’s house and he was no stranger to their

domestic tension. Being close friends, A2 knew that A1 was over ambitious

and that he would go to any lengths to be successful and wealthy. A2

harnessed this attribute of A1’s character and infected his mind with malicious

thoughts regarding the deceased’s money.

That, it is evident that on various previous occasions A1 had borrowed money

from A2 which helped to fulfil his desire to lead an opulent lifestyle.20 A2

exploited this weakness as a bait and made A1 dream of a life where he would

be his own master after he got the money from policy upon the death of the

deceased.

That, A2 knew about the Rs.2 Crore insurance policy in A1’s name. A2

through his seemingly harmless jokes would express to A1 as to how A1

would become rich if the deceased were to go on a long holiday.21 These

frequent small hints by A2, slowly and gradually manipulated A1’s mentality.

These facts clearly explain A2’s intent and role, which led A1 to eventually

murdering the deceased. The Supreme Court has held that the offence of

abetment is a separate and independent offence. A person abets the doing of a

thing by instigation, conspiracy or intentional aid. Where the offence is

committed in consequence of the abetment but there is no provision for

punishment of such abetment, the abettor is to be punished along with the

offender for the original offence. Abetment is constituted by (i) instigating a

person to commit an offence; (ii) engaging in a person to commit it; (iii)

20 Case Details ¶ 5 21 Case details ¶ 16



intentionally aiding a person to commit it. The word ‘instigate’ means to goad

or urge forward, or to provoke, incite, urge or encourage to do an act.22

That, when the act abetted is committed as a consequence of abetment, the

abettor should be punished with the punishment provided for the main offence

with the help u/s 109 of the I.P.C. 1860. No separate sentence should be called

for the abettor.23 No distinction should be made in the quantum of sentence to

be awarded to the principal offender and that awarded to the abettor.24

That, Section-109 of the I.P.C. 1860, becomes applicable even if the abettor is

not present, when that offence abetted is committed provided that he has

instigated the commission of the offence or has engaged with one or more

other persons in a conspiracy to commit an offence and pursuant to that

conspiracy some act or illegal commission takes place or has intentionally

aided the commission of an offence by an act or illegal commission.25

I.2. Commitment of murder.

A-1 lost his parents at the age of 10 years and was then taken up by the deceased and

his family as their own. A-1 was very ambitious and wanted to become rich and

powerful.26 To fulfill his this desire the deceased made sure that A-1 went to the best

of college in India for his studies and motivated A-1 at everystep to do well in life.

But A-1 grew hungry. He always wanted to live a lavish lifestyle like his friends

which ultimately resulted in A-1 borrowing money.27 The debt had accumilated upto

more than a lakh rupees and A-1 had no way to pay the money and since A-2 had 22 R&D IPC 33rd edition reprint 2011. 23 State v Savithri 1976 Cr LJ 37 (Mad) 24 Ashok Nivruti Desai v State of Maharashtra 1995 1 Cr LJ 826 (Bom) 25 N.M.M.Y. Momin, 1971 Cr LJ 793 : AIR 1971 SC 885 26 Case Details ¶ 3 27 Case Details, ¶5.



been forcing A-1 to repay the loan so A-1 had the intention to murder the deceased.

As the deceased had informed A-1, that he had purchased a policy of Rs. 2 Crore and

nominated A-1 as the sole benefactor.28 This insurance money was the soul method

fulfilling A-1’s motive of becoming rich. A-1 very well kept this in his mind, which

is evident from the fact that on many occasions as A-1 and A-2 discussed about how

rich A-1 would be, if the deceased had to go on a ‘long journey’. (Case details ¶ 16)

Upon the death of the deceased, A-1 would get Rs. 2 Crore overnight from the policy,

which would allow him to lead the life he always longed for.

That, on 3rd August, Karan experienced sudden chest and stomach pain. A1 wrote the

name of medicine Angispan on Dr. Chaudhary’s prescription and asked Raghav to get

it. A1 administered the drug via intravenous through a syringe, as Karan was in no

condition to swallow the tablet. Karan was quiet for half an hour but then suddenly

collapsed and died. 29 As mentioned before, A1 had the knowledge of all the

medicines that were prescribed by Dr. Choudhary to the deceased.

That, the fact that such knowledge, is accompanied by interference, whether death or

serious injury maybe caused or not, or even by a wish that it may not be causes,

doesn't make a difference.30 That, while administering Angispan to the deceased via

intravenous through the syringe, A1 injected air bubbles along with the drug to the

deceased. Intravenous is of two types push and infusion. The one through the syringe

is known as push intravenous. As per the Forensic Report, the deceased’s heart was

weak and arrhythmic and froth formation was found in the artery. 31 The froth

28 Case details ¶ 14 29 Case details ¶ 21 30 Public Prosecutor v Samasundaram (AIR 1959 Mad 323) 31 Annexure-4



formation in the artery is due to the air embolism, which means blockade in the artery,

due to the presence of air bubbles in the same. Air bubbles can travel to the heart,

brain or lungs and cause a heart attack. Pulmonary embolism (Air embolism) is

caused by reason of the blockage in the lungs, a clot may form on any part of the body

and then travel upto the lungs.32 Pulmonary embolism is an extremely common and

highly lethal condition that is a leading cause of death in all age groups.33 Regarding

the results which are evident from the post mortem report and the forensic report, it

can be concluded that, Death was caused due to air embolism in the artery thereby

causing blockage of oxygen rich blood reaching the heart causing damage to the heart.

Such damage lead to arrhythmic heart beat which further led to a cardiac arrest. Thus,

here it can be assumed that A1 being a 3rd year medical student who had on multiple

occasions administered the same on alcoholics while he was attached at Altis

hospital,34 would have the basic knowledge as to what the repercussions could be, if

proper care is not taken while administering drugs via intravenous, and if while

performing such an activity, air embolism occurs, it can prove to be fatal. Knowledge

that the probable and natural consequence of an act would be death will suffice for a

conviction u/s 302 I.P.C. 1860.35

32 www.ncbi.nlm.nih.gov/pmc/articles/PMC3665124 (visited on 16th August, 2015) 33 Mohhamed Asif v State of Uttranchal, 2009 SC. 34 Case details ¶ 21 35 Santosh v. State of M.P. 1975 Cr LJ 602 (SC)



ISSUE II

WHETHER THE ACCUSED ARE GUILTY OF FORGERY?

It is humbly submitted that the accused has committed the offence of Forgery under Section

465 of India Penal Code, 1860(IPC).

That, in Dickeins v. Gill, it was held that what constitutes the making of a document depends

essentially upon the nature and use it is intended for. The word making does not mean a mere

mechanical reproduction, but involves and conscious act of the maker.

That, the definition of forgery36 is very wide and the two essential elements to constitute

forgery are (i) there must be deceit or intention to deceive and (ii) actual or a possible injury

caused to a person or persons.37 Injury is something other than economic loss that is the

deprivation of property, whether movable or immovable or of money, it will include any

harm whatever caused to any person in mind, body, reputation. Even in those rare cases

where there is benefit or advantage to deceiver but no corresponding loss to the deceived, the

second condition is satisfied.

That, S.34-38 and 149 of I.P.C. 1860, deal with joint criminal liability. Joint liability is

created because intention or object is common to all the persons forming a group alleged to

commit a crime. hence, 34 has been enacted on principle of joint liablity in doing a criminal

act.

That, the provision of common intention38, is intended to meet a case, in which it may be

difficult to distinguish between acts of individual members of apart, who act in furtherance of

common intention of all, or to prove exactly what part was taken by each of them.39

36 S.463 of IPC,1860 37 Dr. Vimla v. Delhi Administration, AIR 1963 SC 1572 38 Sec. 34, BPC. 39 Seva Ram v. UP 2008. I Cr.L.J.802 SC; In State of M.P. v. Desc Raj 2004 Cr.L.J 1415 SC.



That, in the present case the accused A1 and A2 had sufficient intention to deceive the

deceased by transferring small amounts of money through online transaction from the

deceased’s account without bringing it to the notice of the deceased40 regarding the debt

money which A1 had borrowed from A2 on various occasions to fulfil A1’s desire to lead an

opulent life. This activity was done by A2 with a small USB look-a-like inserted into

deceased’s computer which enabled him to decrypt the deceased’s online banking password

and transfer money into his account. The commission of such an act is fraudulent in nature.41

A person is said to do anything fraudulently if he does that thing with the intent to defraud

but not otherwise.42 The last 3 words ‘but not otherwise’ clearly indicate that intent must be

intent to defraud.

That, the essence of the offence of conspiracy is the fact of combination by agreement. The

agreement maybe express or implied, or in part express or in part implied. The conspiracy

arises and the offence is committed as soon as agreement is made and the offence continues

to be committed as long as the combination persists, that it is until the conspiratorial

agreement is terminated by the completion of its performance or by abandonment or

frustration or however it may be.43

That, the expression “intent to deceive” is different to “intent to defraud”. “Intent to defraud”

is established when the deception has as its aim some advantage or likelihood of advantage to

the person who causes the deceit or some kind of injury or the possibility of injury to another.

In this present case there is common intention to deceive the deceased through fraudulent

transaction.

40 Case details ¶ 16 41 Sec. 25, BPC. 42 Dr .S Dutt v. State of Uttar Pradesh AIR 1966 SC 523 43 Halsburys Laws of England, 4th edition, volume 11, P.44, para 58.



That, on another occasion A1 transferred Rs. 2.5 lakhs/- instead of permitted amount by

deceased of Rs. 2.25 lakhs/- to his own account, in lieu of tuition fee and daily expenses.44

The deceased permitted A1 to transfer small amounts to his account, in case of emergencies,

but A1 was duly asked to inform on such transfers positively.45 An actual intention, to

convert an illegal doubtful claim, into an apparently legal one is dishonest and will amount to

forgery. According to Supreme Court “the word defraud includes an element of deceit. Deceit

is not an ingredient of the definition of a word dishonestly.” While it is an important

ingredient of the word “fraudulently” the former involves pecuniary or economic gain or a

loss while the latter by construction excludes that element. Further the juxtaposition of the

two expressions “dishonestly” and “fraudulently” used in the section 463 & 464, indicate

their close affinity and therefore the definition of one may give colour to the other. Thus, in

case of dishonestly there must be a gain to one party and wrongful loss to another party. In

case of fraudulently the act must be accompanied by deceitful means. In this present case, it

is evident that A1 acquired Rs. 25 thousand/- extra as a wrongful gain and acted dishonestly.

That, the direct proof of common intention is seldom available. In order to bring home charge

of common intention, the prosecution has to establish by evidence, whether direct or

circumstantial, that there was a plan or meeting of mind of all accused persons with which

they were charged with the aid of S.34. The word act denotes a series of act as a single act46 ,

hence forming res gestae.47

44 Case details ¶ 20 45 Case details ¶ 15 46 Lalan v. State of Bihar 2003 Cr LJ 47 Case details ¶ 15



The consensus of mind of persons, to bring about certain result, having criminal propensity

was an essential ingredient in S.34.48 Participation in criminal act in some manner was also

essential but physical presence at the scene of occurrence was not necessary.

That, where there is an intention to deceive by the means of deceit to obtain an advantage

there is fraud, if the document is fabricated with such intent it is forgery. The majority of the

judges of the madras high court in a full bench case seem to be of opinion that an intention to

secure benefit or advantage to the party deceiving by the means of deceit constitutes an

intention to defraud. A general intention to defraud without the intention of causing wrongful

gain or loss to another, will be sufficient to support a conviction.

48 Aizaz v UP, (1008) 4 Cr LJ 4374 (SC)



ISSUE III

WHETHER THE ACCUSED ARE GUILTY UNDER COMPUTER RELATED

OFFENCES AND IDENTITY THEFT?

It is humbly contended that Manohar(A1) and Rahul (A2) are guilty of offences under Sec. 43, 66

and 66C of the Information Technology Act, 2005.

That, Kenny lays49 down in English Law; “Conspiracy first began as an agreement of

persons, who combined to carry on a legal proceeding, in vexatious or improper way.

However, in modern times, conspiracy has become a separate crime and is defined as an

agreement of two or more person, to affect any unlawful purposes, whether as an ultimate

aim or only as a means to it. This definition provides four points for notice

(i) Actus reus

(ii) Persons agree

(iii) Purpose agreed upon

(iv) Mens rea”

That, in a criminal conspiracy meeting of mind of two or more persons is sine quo non but

proving this by direct proof is not possible. It is not always possible to give affirmative

evidence, about the date of confirmation of criminal conspiracy, persons who took part in the

conspiracy, about the object and about the manner in which the object of conspiracy is to be

carried out. All this is necessarily, a matter of inference.50 Conspiracy can be inferred even

from the circumstances giving rise to conclusive or irresistible inference of an agreement

49 Kenny on outlines of criminal law, 19th edition, Para 448, P. 426 50 Mohhamed Arif v. State of NCT of Delhi (2011) 13 SCC 621; N.V. Subarao v. State (2013)2 SCC 162.



between 2 or more persons to commit an offence.51 Hence conspiracy and its objective can be

inferred from the surrounding circumstances and the conduct of the accused.

That, there are 2 elements to be taken into consioderation; (i) Intention to cause wrongful loss

or damage or Knowledge of the likelihood of wrongful loss or damage; and (ii) Destruction

or deletion or alteration of information in a computer or diminishing value or utility of a

computer resource or injuriously affecting a computer resource. Damage for the purposes of

this section implies injury or deterioration caused by an unlawful act.

That, in a case where 2 or more persons are involved, either jointly or in a group, and it is not

possible to apportion criminal guilt of each of the participants, all the participants are held

liable jointly for the offence committed by any one or all the members of the group. This is

based on the contention that the presence of the accomplice gives encouragement, protection

and support, to the person actually engaged in the commission of an unlawful act. Since the

purpose is common, the responsibility and liability is joint.

That, in the instant case A2 along with A1 connected a USB look-a-like into the deceased’s

computer which enabled them to decrypt A1’s uncles online banking password and

transferred the money to A2’s account.52 This act was undertaken several times by A1 & A2.

Such an act can be classified under the definition of Hacking under Sec. 66 as A1 and A2 had

the intention and knowledge of the implications of such an act.

That, the technically expertised Hasmeet in Annexure 753 has concluded that, the Keylogger

software was found installed in the hard disk, which is used to track the keying pattern of a

user, to retrace the various sites visited by the user or trap passwords without the knowledge

of the user. It is a fact that A2 was a ‘tech-guru’ who had advanced knowledge of hacking the

51 M.S. Reddy v. State Inspector of Police, ACB Nellor 1993 CrLJ 558(AP) 52 Case details ¶ 16 53 Case Details.



biometric attendance system of his college, as well as the bank account of his father and

transfer money without his knowledge.

That, on August 2, 2014, the deceased permitted A1 to transfer some money in to the latter’s

account to pay A1’s college fees. A1 then opened deceased’s laptop and found that the

password to his bank account in Bharat Bank was inappropriate, indicating that someone had

changed the password. A1 accessed one folder containing the details of the deceased’s

account and transferred Rs. 2.5 lakhs /- instead of Rs. 2.25 lakhs/- .that he usually did for his

fees and daily expenses.54 This malicious act of A1 amounts to fraud.

It is not necessary for a conspirator to be present at the scene of crime.55 It is also not

necessary that every conspirator much have taken part in each and every act done in

pursuance of a conspiracy.56

That, On reading Sec. 66 and 66C along with the facts of the present case it is clear that in

respect of tampering and hacking with computer system with the knowledge or intention if

such act is done, the same would be an offence. Hence, it is evident that A1 and A2 are to be

held guilty under the respective provisions.

54 Case details ¶ 20 55 Tamil Nadu v. Nalini 1999 Cr LJ 3124(SC) 56 State of Himachalv. Krishanlal Pradhan AIR 1987 SC 773.

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 x


PRAYER

It is therefore, prayed that, your lordships may graciously be pleased In the light of

the issues raised, arguments advanced and authorities cited, the counsel on behalf

of Prosecution humbly submits that the Hon’ble Court may be pleased to adjudge

and declare that,

The accused persons (A-1 and A-2) are to be held guilty of the offences.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good

Conscience.

All of which is most humbly and respectfully submitted

S/d_________________

PUBLIC PROSECUTOR

BEFORE THE COURT OF SESSIONS AT DURG, …€B SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT...

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