IN THE HON BLE COURT OF SESSIONS JUDGE BAMBI THANE · PDF fileteam code: in the hon’ble...

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IN THE HON’BLE COURT OF SESSIONS JUDGE, BAMBI THANE

S. C. NO. 123 OF 2014

STATE OF BAMBI (PROSECUTION)

VERSUS

PANNA AND OTHERS (DEFENCE)

MEMORANDUM ON BEHALF OF THE DEFENCE (PANNA AND OTHERS)

SURANA & SURANA NATIONAL TRIAL ADVOCACY

MOOT COURT COMPETITION- 2014

FC-16

TABLE OF CONTENTS

(MEMORANDUM ON BEHALF OF THE DEFENCE)

LIST OF ABBREVIATIONS………………………………………………………………..II

INDEX OF AUTHORITIES………………………………………………………………IV

STATUTES…………………………………………………………………………….IV

BOOKS………………………………………………………………………….…….IV

DICTIONARIES………………………………………………………………………...V

CASES………………………………………………………………………………...V

STATEMENT OF JURISDICTION……………………………………………………………VI

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

STATEMEN T OF CHARGES……..…………………………………………………………......VIII

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

ARGUMENTS ADVANCED……………………………………………………………1-15

ISSUE 1: THAT MR PANNA, MR JAIMIL AND MR SABA ARE NOT LAIBLE UNDER SECTION 120B OF BPC.

ISSUE 2: THAT MR PANNA, MR JAIMIL AND MR SABA ARE NOT LIABLE UNDER SECTION 501

AND 502 OF BPC

ISSUE 3: THAT MR SABA AND MR JAIMIL ARE NOT LIABLE UNDER SECTION 385 OF BPC

ISSUE 4: THAT MR PANNA IS NOT LIABLE UNDER SECTION 227 OF BPC

P R A Y E R … … … … … … … … … … … … … … … … … … … … … … … … … … … … … X

TABLE OF CONTENTS

I

LIST OF ABBREVIATIONS


1. ¶ Paragraph

2. & &

3. AD Apex Decision

4. All Allahabad High Court

5. AIR All India Reporter

6. Anr. Another

7. A. P. Andhra Pradesh

8. Bom Bombay

9. Bom L. R. Bombay Law Reporter

10. b/w Between

11. Cal. Calcutta

12. Co. Company

13. Cri Criminal

14. CrLJ Criminal Law Journal

15. CrLR Criminal Law Reporter

16. DB Division Bench

17. Del. Delhi

18. Ed. Edition

19. Gau Gauhati

20. Guj Gujarat

21. Hon’ble Honourable

22. HP Himachal Pradesh

23. IEA Indian Evidence Act, 1872

24. i.e. i.e. (that is)

25. IPC Indian Penal Code, 1860

26. J&K Jammu and Kashmir

27. JT Judgment Today

28. Ker Kerala


II



29. LR Law Reporter

30. Mad Madras

31. MP Madhya Pradesh

32. NOC Notes of Cases

33. Ori Orissa

34. Ors Others

35. P&H Punjab and Haryana High Court

36. p. Page

37. para Paragraph

38. PLJ Punjab Law Journal

39. Punj. Punjab

40. RCR Recent Criminal Reports

41. SC Supreme Court

42. SCC Supreme Court Cases

43. S. Section

44. Supp. Supplement

45. U.P. Uttar Pradesh

46. u/s under section

47. UOI Union of India

48. Vol. Volume

49. v. / vs. Versus

50. W.B. West Bengal

III

INDEX OF AUTHORITIES


TABLE OF STATUTES:

1. The Indian Penal Code, 1860 (Act No. 45 of 1860)

2. The Criminal Procedure Code, 1973 (Act 2 of 1974)

3. The Indian Evidence Act, 1872 (Act 1 of 1872)

4. Maharashtra Prison Manual, 1979

5. The Prisons Act, 1894

6. The Prisoners Act, 1900

TABLE OF BOOKS:

1. Civil & Criminal Practice Manual, Eastern Book Company, 1st Ed. 2008.

2. KELKARR.V., Criminal Procedure, Pillai Eastern Book Company, 4th Ed. 2007

(Revised by Dr. K. N Chandrasekharan).

3. BASU N. D., (edited by A.N. Saha) Indian Penal Code, 8th Ed.1998.

4. SIR JOHN WOODROFFE & SYED AMIR ALI Law of Evidence, , LexisNexis

Butterworth’s, 17th Ed. Vol. II, S V Joga Rao,

5. VIBHUTE K. I, P S A Pillai’s Criminal Law,., LexisNexis Butterworth’s, 11th Ed.,

2012.

6. RATANLAL & DHIRAJLAL, The Code of Criminal Procedure, , Wadhwa &

Company Nagpur, 20th Ed. 2011 (Y V Chandrachud J. & V R Manohar J.).

7. GAUR K. D., The Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd., 4th

Ed., 2013 Reprint,

8. RATANLAL & DHIRAJLAL, The Indian Penal Code, LexisNexis Butterworth’s

Wadhwa & Co., Nagpur, 29th Ed. 2004,.

9. RATANLAL & DHIRAJLAL, The Indian Penal Code, , Wadhwa & Company

Nagpur, 30th Ed. 2008 (Y V Chandrachud J. & V R Manohar J.).

10. RATANLAL & DHIRAJLAL, The Law of Evidence, , Wadhwa & Company Nagpur,

24th Ed. 2012 (Y V Chandrachud J. & V R Manohar J.).

11. SOONAWALA’s J.K, Supreme Court Criminal Digest (1950-2006) 4thEd. 2008, Volume 2,

Wadhwa & Company Nagpur


IV



DICTIONARIES:

1. A.N. SAHA, LEGAL DICTIONARY 5TH EDITION, EASTERN LAW HOUSE, 1990

2. BRYAN A. GARNER, BLACK’S LAW DICTIONARY 8TH EDITION, 2004.

3. OXFORD ENGLISH DICTIONARY, 2ND EDITION, 2009.

TABLE OF CASES:

1. Ajay Agarwal v. Union Of India And Ors, 1993 AIR 1637, 1993 SCR (3) 543…….1,2

2. Aizaz & Ors v. State of Uttar Pradesh, (2008) 12 SCC 198, (2008) Cr LJ 4374 (SC...6

3. Babu v. State of Kerela, (2010) 9 SCC 189………………………………………….12

4. Balakrishnan, AIR 1971 SC 804 : Cr LJ 670………………………………………….5

5. Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543……………………...4

6. Biram Lal and Ors. v. State, RLW 2007 (1) Raj. 713…………………………….11,12

7. Brijlala Prasad Sinha v. State of Bihar, (1999) 8 SCC 555, (2000) Cr LJ 12 (SC)…..6

8. Charanjitlal v. State (Delhi), (1985) 28 Del LT 92 (96)……………………………..14

9. Dadu @ Tulsidas v. State of Maharashtra, (2000) INSC 511……………………….15

10. Dattatraya Narayan Samant and Ors. v. State Of Maharashtra, 1982 (1) Bom CR 1,

(1981) 83 BOMLR 553, 1982 Cr LJ 1025…………………………………………….2

11. Empress v. McCarthy, (1887) ILR 9 All 420………………………………………...10

12. Genda Ram v. Emperor, AIR 1936 All 143, 37 Cr LJ 258……………………………8

13. Gurdatta Mal v. State of Uttar Pradesh, AIR 1965 SC 257…………………………..6

14. Idrish Bhai Daudbhai v. State of Gujarat, (2005) 3 SCC 277, (2005) Cr LJ 1422

(SC)……………………………………………………………………………………6

15. Jagannath Mishra v. State of Orissa, 1174 Cr LJ 1253……………………………….2

16. Jainaram Singh v. Emperor, AIR 1941 Pat 9, 41 Cr LJ 814………………………...9

17. J Jayalalitha v. Arcot N Veerasamy, 1997 Cr LJ 4585(Mad.)………………………10

V



18. Kali Ram v. State of Himachal Pradesh, 1973 AIR 2773, 1974 SCR (1) 722………13

19. Kumar Singh @ Raju @ Batya v. State of Rajasthan, 2013 (6) SCALE 635………..13

20. Krishna Kanta v. Geeta Roy, 1982 Ch Cr Cas 54, p 60 (Del)………………………...9

21. Lallan Rai v. State of Bihar, (2003) 1 SCC 268……………………………………….6

22. Madan Lal v. State of Punjab, 2013 (1) RCR (CR) 17 (P&H) (D.R.)………………...2

23. Mangal Sahu v. Sukratibai, 1980 Cr LJ 431 (MP)……………………………………9

24. M.C. Verghese v. T.J. Ponnan & Anr, 1970 AIR 1876, 1969 SCR (2) 692…………..9

25. NCERT v. PD Bhatnagar, 1981 Raj Cr Cas 392, p 397……………………………….7

26. Parichhat v. State of Madhya Pradesh, AIR 1972 SC 535 : (1972) 4 SCC 694 :1972

Cr LJ 322 1971 SCD 1158…………………………………………………………….6

27. Pat Sharpe v. Dwinjendra Nath Bose, (1964) 1 Cr LJ 367…………………………...9

28. Pawan Kumar v. State of Haryana, AIR 2001 SC 134………………………………..3

29. Perspective Publications v. State of Maharashtra, AIR 1971 SC 221,(1971) Cr LJ

268 (SC)……………………………………………………………………………….8

30. P.K Narayanan v. State of Kerala, (1995) 1 SCC 142: 1995 SCC (Cri) 215: (1994) 3

Crimes 850…………………………………………………………………………….4

31. Prem Pal Singh v. Mohan Lal, 1981 Cr LJ 1208, p 1211 (HP)……………………….7

32. Saju v. State of Kerala, AIR 2001 SC 175: (2001) 1 SCC 378: 2001 Cr LJ 102 (SC):

(2000) 4 Crimes 247 (SC)……………………………………………………………..4

33. Sarat Chandra v. Khagendranath, (1961) 2 SCR 133……………………………….14

34. Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637: (1957) Cr LJ

1014……………………………………………………………………………………3

35. S.D. Soni v. State of Gujarat, AIR 1991 SC 917: (1992) Supp (1) SCC 567………....4

36. Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 (1655)…….3

37. S.L. Goswami (Dr.) v. State of M.P., (1972) 3 SCC 22……………………………….3



38. Sunil Fulchand Shah v. Union of India, 2000 SCC (Cri.) 659…………………...…..14

39. Sunlakhya Chowdhury v. HM Jadwet, AIR 1968 Cal 266, p 271, 1968 Cr LJ

736……………………………………………………………………………………..7

40. Sri. Sujit Biswas v. State of Assam (2013) 12 SCC 406 .………………………........13

41. State (Delhi Administration) v. V.C. Shukla, AIR 1980, SC 1382 : (1980) 2 SCC 665 :

1980 Cr LJ 965…………………………………………………………………….2,3,4

42. State of Haryana v. Nauratta Singh & Ors, 2000 (3) SCC 514…………………..….15

43. State of Kerala v. P. Sangathan, AIR 2000 SC 3323 : (2000) 8 SCC 203 : 2000 SCC

(Cri) 1474 (1481) : 2000 Cr LJ 4584 : 2000 Cr LR (SC) 780…………………………4

44. State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744……………………….3

45. State of Punjab v. Bhajan Singh, (1975) 4 SCC 472………………………………….3

46. Valmiki Faleiro v. Mrs Lauriana Fernandes & Ors, (2005) Cr LJ 2498 (BOM)…..…8

STATEMENT OF JURISDICTION


The Defence Counsel most humbly submits to the Hon’ble Court of Sessions under Section

26 read with schedule II of the Code of Criminal Procedure, 1973 in consonance with

commitment order passed under section 209 of the Code of Criminal Procedure, 1973.

Section 209 of Code of criminal Procedure, 1973 states:

“When in a case instituted on a police report or otherwise, the accused appears or is

bought before the magistrate and it appears to the magistrate that the offence is

triable exclusively by the Court of Session, he shall-

Commit, after complying with the provisions of section 207 or section 208, as

the case may be , the case to the court of session , and subject to the

provisions of this code relating to bail , remand the accused to the custody

until such commitment has been made.

Send to the court the record of the case and the documents and articles, if any,

which are to be produced in evidence

Notify the public prosecutor of the commitment of the case to the court of

session.”

STATEMENT OF JURISDICTION

VI

STATEMENT OF CHARGES


-I- In March 2013, Mr. Panna boy was convicted and was sentenced to 5 years of rigorous

imprisonment under the Arms Act, 1959. Before he was convicted, he had signed for a movie

“Hit–Factory” which was almost complete and only a few scenes were left to be shot. After

Mr. Panna boy got convicted under the Arms Act, 1959 the lead actress of the film Ms. Naika

categorically refused to be a part of the film by returning the advance.

-II-

Mr. Panna Boy was granted parole in December 2013 and in February 03, 2014 to look after

his ailing wife who was admitted in Star- Hospital. On February 6, 2014 Mr. Jaimil

complained of chest pain and got himself admitted in Star Hospital. In Star- Hospital a shoot

for a project was going on. Ms. Poonam who had a striking resemblance to Ms. Naika was a

part of that project. Mr. Panna Boy was spotted with Ms. Poonam at the sets of the

unrevealed project. On February 8 2014, Mr. Panna Boy was seen with Ms. Poonam in

Central mall where a set-up for a shoot was prepared.

-III -

On February 14, 2014 there were ads of “releasing shortly” the movie “Hit- Factory”. Ms.

Naika on February 16, 2014 filed a suit in the High Court of Bambi for the permanent

injunction of the film. That evening she received two anonymous calls threatening her of dire

consequences if she does not withdraw the suit. She filed a FIR in the Bambi central police

station against Mr. Panna Boy, Mr. Jaimil and Mr. Saba.

STATEMENT OF FACTS

VII



1. WHETHER MR. PANNA BOY IS LIABLE UNDER SECTION LIABLE UNDER

SECTION 120 B READ WITH 34, 227, 501 & 502 OF BAMBI PENAL CODE?

2. WHETHER MR. SABA IS LIABLE UNDER SECTION 120 B READ WITH 34,

385, 501&502 OF BAMBI PENAL CODE?

3. WHETHER MR. JAIMIL IS LIABLE UNDER SECTION 120 B READ WITH 34,

385, 501 & 502 OF BAMBI PENAL CODE?


VIII

SUMMARY OF ARGUMENTS


The Counsel for Defence humbly pleads:

1. THE ACCUSED ARE NOT LIABLE UNDER SECTION 120-B READ WITH

SECTION 34 OF BPC

For section 120B to apply, the offence of Conspiracy so as to fulfill a Criminal Object must

be made out. In the present case, there is no cogent evidence placed on record by the

prosecution to prove that the accused indulged in any kind of conspiracy or shared any

common intention to commit any offence. Further, there was no criminal object as no-look

alike of Ms. Naika has been casted and the movie has been completed by using super-

imposing techniques. There has been an inordinate delay of more than a month’s time in

filing the investigation report thus casting a severe doubt on its originality. Hence, the

accused are being falsely implicated based on mere assumptions and imaginary inferences.

2. THE ACCUSED ARE NOT LIABLE UNDER SECTION 501 AND SECTION

502 OF BPC

For Section 501 and 502 to apply, there must be Publication of an Imputation along with

Knowledge and Intention to do so. The accused have not made any imputation has it is Ms.

Naika herself in the poster of the movie and not any look alike. Further, assuming that an

imputation has been made, the accused did not have any knowledge and intention of harming

the reputation of Ms. Naika as she had willingly and readily agreed to work in the movie

knowing the cast of the same and that the shooting for most of the movie with her had already

been completed.


IX



3. THE ACCUSED ARE NOT LIABLE UNDER SECTION 385 OF BPC

For Section 385 to apply, the Prosecution must prove that the Threatening Calls had been

made by the accused to Ms. Naika and that they had done so in order to Dishonestly Induce

her to Deliver Property or any Valuable security. The Accused vehemently deny having

threatened Ms. Naika over the phone and there is nothing in the evidence placed on record by

the Prosecution to prove this accusation beyond reasonable doubt. Further, the posters of the

movie the Hit-Factory had already been released at the time when the calls were made and

there remains no possibility to threaten Ms. Naika to ‘complete the movie’ as the movie of

the defendant had already been completed. The accusation is merely based on suspicion.

4. THE ACCUSED IS NOT LIABLE UNDER SECTION 227 OF BPC

The charge under Section 227 is not maintainable in the present case as it applies to

Remission of Punishment and in the pertinent case the Accused had been released on Parole

by the entrusted authorities to look after his ailing wife. The Remission of Punishment is

different from the concept of Parole which is granted to a prisoner. Further, Rule 20 of the

Maharashtra Prison Manual, 1979 states in unambiguous manner that in no case, Parole can

be considered as Remission of Punishment.

ARGUMENTS ADVANCED Page 1 of 15


I. THE ACCUSED IS NOT LIABLE FOR PUNISHMENT UNDER SECTION 120-B READ WITH

SECTION 34 OF BPC

A. Ingredients of the Offence of Criminal Conspiracy have not been fulfilled.

Section 120-A1 provides for the Offence of Criminal Conspiracy. Section 120-B2 of the I.P.C.

prescribes Punishment for Criminal Conspiracy.

Conspiracy is conceived as having three elements:

(1) Agreement

(2) Between two or more persons by whom the agreement is effected; and

(3) A criminal object, which may be either the ultimate aim of the agreement, or may

constitute the means, or one of the means by which that aim is to be accomplished.3

In the present case the above mentioned ingredients have not been fulfilled.

1 S. 120-A, BPC.—“When two or more persons agree to do, or cause to be done,—

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” 2 S. 120-B, BPC.—

(1) “Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]” 3 Ajay Agarwal v. Union Of India And Ors, 1993 AIR 1637, 1993 SCR (3) 543.

ARGUMENTS ADVANCED



A.1 The Accused did not enter into any Agreement

Agreement is the rock bottom of the offence of conspiracy.4 The gist of conspiracy lies in the

forming of the scheme of agreement between the parties.5 This clearly envisages that there

must be a prior meeting of minds resulting in an ultimate decision taken by the regarding the

commission of conspirators an offence.6

It is submitted that the mere coincidence of Mr. Saba shooting for his t.v. serial in the same

hospital where Mr. Panna’s wife and Mr. Jaimil were admitted does not prove the prior

meeting of minds of the accused since the Star Hospital catered to high end clients and

premises of Star Hospital were also rented for movies and t.v. serials of reputed production

houses. The Prosecution story is relying merely on suspicion and possibility and not actuality.

Suspicion however grave cannot take place of the legal proof7

A.2 No Illegal Act or Legal Act by Illegal Means.

The offence is complete as soon as there is meeting of minds and unity of purpose between

the conspirators to do that illegal act or legal act by illegal means.8

In the pertinent case, Mr. Panna boy was released on Parole for reasons found fit by the

entrusted authorities and a person can obtain paroles on good conduct and it was nothing

4 Jagannath Mishra v. State of Orissa 1174 Cr LJ 1253. 5 Dattatraya Narayan Samant And ... v. State Of Maharashtra, 1982 (1) BomCR 1, (1981) 83 BOMLR 553,

1982 Cri LJ 1025.

6 State (Delhi Administration) v. V.C. Shukla, AIR 1980, SC 1382 : (1980) 2 SCC 665 : 1980 Cr LJ 965. 7 Madan lal v. State of Punjab 2013, (1) RCR (CR) 17 (P&H) (D.R.).

8 Ajay Agarwal v. Union Of India And Ors, 1993 AIR 1637, 1993 SCR (3) 543.



different in his case. Mr. Jaimil and Mr. Saba have completed the movie with the help of

superimposing techniques which is very common these days and not by casting a look alike

as alleged by the Prosecution. To establish a charge of Conspiracy, Knowledge about the

indulgence in either an illegal act or legal act by illegal means is necessary.9 Defence counsel

brings forth before the hon’ble court that the fundamental principle of criminal liability is

absent here.

B. No cogent Direct or Circumstantial Evidence to prove the Offence of Criminal

Conspiracy by the Prosecution.

There are three well-settled cardinal principles of criminal jurisprudence, namely:

(1) That the onus lies affirmatively on the Prosecution to prove its case beyond reasonable

doubt10& it can’t derive any benefit from weakness of the defence version of while proving

its case11.

(2) That in a criminal trial the Accused must be presumed to be innocent unless he is

proved to be guilty; & wherever two theories are possible the one in favour of the accused

must be adopted12& he must be entitled to benefit of doubt.13

9 State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744. 10State (Delhi Administration) v. V.C. Shukla, AIR 1980 SC 1382;Himachal Pradesh Admn. v. Om Prakesh, AIR 1972 SC 975.

11Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 (1655). 12Pawan Kumar v. State of Haryana, AIR 2001 SC 134. 13S.L. Goswami (Dr.) v. State of M.P., (1972) 3 SCC 22; Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637 : (1957) Cr LJ 1014; State of Punjab v. Bhajan Singh, (1975) 4 SCC 472TO THE SAME EFFECT ; S.D. Soni v. State of Gujarat, AIR 1991 SC 917 : (1992) Supp (1) SCC 567; Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543.



(3) That the onus of the Prosecution never shifts.

Thus, the onus is on the Prosecution to prove the charge of Conspiracy by cogent evidence

direct or circumstantial.14 To prove Criminal Conspiracy there must be evidence, direct or

circumstantial to show that there was agreement between two or more persons to commit an

offence.15 The Prosecution in the present case has failed to establish an accusation beyond

reasonable doubt.

In the case of Saju v. State of Kerela the Apex Court observed that “the accused and the

appellant worked together in the plantation and were seen together after and before the

incident near the place of occurrence. This much was not considered enough to prove that

they met each other in furtherance of the conspiracy.”16

A few bits here and a few bits there on which the Prosecution relies cannot be held to be

adequate for connecting the accused with the commission of the crime of Criminal

Conspiracy.17 The Offence of Conspiracy cannot be deemed to have been established on mere

suspicion and surmises or inference which lacks the support of cogent evidence.18

The Defence counsel thus submits that the mere presence of the accused at the same place

does not amount to conspiracy. In the present case there is nothing in the evidence on record

which could show that any of the accused formed the Conspiracy. 14 State v. V.C. Shukla, AIR 1980 SC 1382 : (1980) 2 SCC 665 : 1980 SC LJ 965 (SC) : 1980 Cr LR (SC) 301. 15 V.C. Shukla v. State (Delhi Administration), 1980 SCC (Cri) 561. 16 Saju v. State of Kerala, AIR 2001 SC 175: (2001) 1 SCC 378: 2001 Cr LJ 102 (SC): (2000) 4 Crimes 247

(SC). 17 State of Kerala v. P. Sangathan, AIR 2000 SC 3323 : (2000) 8 SCC 203 : 2000 SCC (Cri) 1474 (1481) : 2000 Cr LJ 4584 : 2000 Cr LR (SC) 780. 18 P.K Narayanan v. State of Kerala, (1995) 1 SCC 142 : 1995 SCC (Cri) 215 : (1994) 3 Crimes 850.



C. Inordinate Delay in the Investigation Process.

Section 173 (1) of Cr.P.C. states that every investigation shall be completed without

unnecessary delay. In a case where there was an unexplained delay for TEN days and there

were some contradictions as well, the Supreme Court opined that though the contradictions

by themselves might not have much significance, yet considered in the light of the delay in

the examination, the evidence became suspect.19

In the present case, The F.I.R. was filed on 17th February while the Investigation Report was

submitted on the 30th March. There was an unexplained and inordinate delay of more than a

month’s time in filing the final report of investigation thus casting severe doubt on the truth of

the report.

D. Section 34, BPC - INGREDIENTS NOT FULFILLED

Section 3420 of BPC provides for the acts21 done by several persons in furtherance of

Common Intention22.The essence is simultaneous consensus of the minds of persons

participating in criminal action to bring about a particular result.23 The necessary conditions

for application of Section 34 are:

19 Balakrishnan, AIR 1971 SC 804 : Cr LJ 670. 20When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 21 “Act”—The word “act” denotes as well a series of acts as a single act. 22 Black’s Law Dictionary (8th Ed. 2004) “The willingness to bring about something planned or foreseen; the state of being set to do something.” 23 Lallan Rai v. State of Bihar, (2003) 1 SCC 268; Aizaz & Ors v. State of Uttar Pradesh, (2008) 12 SCC 198,

(2008) Cr LJ 4374 (SC).



(a)Common intention to commit an offence; and

(b)Participation by all accused in doing acts in furtherance of that common intention

If these two ingredients are established, all the accused would be liable for the said offence.24

In the case of Idrish Bhai Daudbhai v. State of Gujarat25, the Supreme Court has

categorically ruled that “if the Prosecution has failed to bring any material on records to

show there had been any pre concert or pre arranged plan so as to hold than an accused had

common intention to commit the alleged offence, the accused deserves the benefit of doubt

and consequential acquittal”

The evidence and the circumstances should establish without any room for doubt that a

meeting of minds and fusion of ideas amongst different accused and in prosecution of it, the

overt acts of the accused flowed out as if in obedience to the command of a single mind26. If

there is no evidence of a prior meeting of minds and any prearranged plan or of participation

of accused, they could not be convicted with the aid of section 3427. In the present case, the

accused did not share the common intention to complete the movie through any illegal means

nor was there any participation in the furtherance of common intention as submitted by the

counsel above.

24 Gurdatta Mal v. State of Uttar Pradesh, AIR 1965 SC 257.

25 (2005) 3 SCC 277, (2005) Cr LJ 1422 (SC). 26 Brijlala Prasad Sinha v. State of Bihar, (1999) 8 SCC 555, (2000) Cr LJ 12 (SC).

27 Parichhat v. state of Madhya Pradesh, AIR 1972 SC 535 : (1972) 4 SCC 694 :1972 Cr LJ 322 1971 SCD 1158.



II. THE ACCUSED IS NOT LIABLE FOR PUNISHMENT UNDER SECTION 501 & 502, BPC.

A. Ingredients of the Offence have not been fulfilled

Section 49928, BPC provides for the Offence of Defamation. The offence of Defamation

consists of three essential ingredients:

1. There must be a making or publishing of an imputation concerning a person;

2. Such imputation must have been made by words, either spoken or intended to be read, or

by signs or by visible representation; and

3. The said imputation must have been made with the intention to harm, or with knowledge or

reasonable belief that it will harm, the reputation of the person concerned.29

In the present case the abovementioned essential ingredients have not been fulfilled.

A.1. The Accused have made No Imputation

An imputation ordinarily implies an accusation30. The first and foremost question, which a

court dealing with a criminal prosecution, involving the offence of defamation, must,

therefore, answer, is whether the alleged material, described as defamatory, amounts to

imputation within the meaning of this expression as used in section 499. Imputation means

accusation against a person and it implies an accusation of fact, and not merely a term of

abuse31.

28 S.499:”Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. 29 Sunlakhya Chowdhury v. HM Jadwet, AIR 1968 Cal 266, p 271, 1968 Cr LJ 736.

30 NCERT v. PD Bhatnagar, 1981 Raj Cr Cas 392, p 397.

31 Prem Pal Singh v. Mohan Lal, 1981 Cr LJ 1208, p 1211 (HP).



In the pertinent case, the alleged defamatory material does not contain any kind of an

imputation against Ms. Naika. It must be proved that the imputation was such so as to harm

the reputation of the complainant32. Nothing in the present case shows that any ‘imputation’

is made against Ms. Naika which harms her reputation.

A.2. The Accused had No Intention To Defame

Further as per section 499 of BPC, a person’s reputation is safeguarded from any imputation

made by any person who does so with an intention33 and knowledge34, to defame such

person. Further, a person’s own opinion of himself is not his reputation35. Thus intention is

sine qua non of the offence of defamation. In the case of Valmiki Faleiro v. Mrs Lauriana

Fernandes & Ors36, the Hon’ble Court held that “the commission of offence of defamation or

publishing any imputations concerning any person must be ‘intending to harm or knowing or

having reason to believe’ that such imputation will cause harm.”

32 Genda Ram v. Emperor, AIR 1936 All 143, 37 Cr LJ 258.

33 Black’s Law Dictionary (8th Ed. 2004) “The willingness to bring about something planned or foreseen; the state of being set to do something.” John Salmond, Jurisprudence (380-81) (Glanville L. Williams ed., (10th ed. 1947) "Intention is the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch as they fulfill themselves through the operation of the will. An act is intentional if, and in so far as, 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.” 34 Blacks Law Dictionary (8th Ed. 2004) “An awareness or understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact.” John Salmond, Jurisprudence 380-81 (Glanville L. Williams ed., 10th ed.1947) "It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended. 35 Perspective Publications v. State of Maharashtra, AIR 1971 SC 221,(1971) Cr LJ 268 (SC).

36 (2005) Cr LJ 2498 (BOM).



In the present case the accused did not have the intention to harm the reputation of Ms.

Naika. The accused have completed the movie in good faith. A person in not guilty of

defamation unless he intends that his words would harm the reputation of a person37.

A.3. The accused had No Knowledge or Reason to Believe that Defamation has been

committed.

In M.C. Verghese v. T.J. Ponnan & Anr38, the Hon’ble Supreme Court held that, “to

constitute the offence of defamation there must be making or publication of an imputation

concerning any person and the making or publication must be with the intent to harm, or

knowing or having reason to believe39 that such imputation will harm the reputation of such

person”.

It is submitted that the accused had No Knowledge that by casting Ms. Naika with Mr. Panna

Boy in the movie, they would harm the reputation of Ms. Naika in anyway. The Director of

the movie Mr. Jaimil, who has also written the script, had told Ms. Naika about the script

before casting her in the movie, to which she readily agreed to work on and hence the

accused had no knowledge or any reason to believe that the alleged defamatory material

would defame Ms. Naika. It is not upon the respondent to show that he did not make the

allegations or that they were not false40.

37 Jainaram Singh v. Emperor, AIR 1941 Pat 9, 41 Cr LJ 814; Pat Sharpe v. Dwinjendra Nath Bose, (1964) 1

Cr LJ 367; Krishna Kanta v. Geeta Roy, 1982 Ch Cr Cas 54, p 60 (Del). 38 1970 AIR 1876, 1969 SCR (2) 692. 39 According to S. 26 of BPC, “a person is said to have ‘reason to believe’ a thing, if he has sufficient cause to believe that thing but not otherwise”

40 Mangal Sahu v. Sukratibai, 1980 Cr LJ 431 (MP).



B. Explanation 4 of Section 499

The conjoint reading of Section 499, BPC, with Explanation 441, would make it clear, that in

the complaint, there shall be an averment to the effect, that because of the imputation, the

complainant’s reputation had been lowered in the estimation of others42. In this case there is

no evidence to show that the reputation of Ms. Naika has been lowered in the estimation of

others because of the publication of the alleged defamatory material.

Where the meaning of the words, spoken or written, is doubtful as to its significance and

some evidence is necessary to decide what the effect of the expression used would be and

whether it is calculated to harm a particular person’s reputation, it is possible that the

principle, enunciated in Explanation 4, may, with propriety, be applied43.

C. That the ingredients of Section 501, BPC have not been fulfilled.

Section 50144, BPC provides Punishment for Printing or Engraving any Defamatory matter

with knowledge and having reason to believe that such matter is defamatory. In the present

case, as have been already discussed, the accused had neither knowledge nor any reason to

believe that the alleged defamatory matter will cause damage to the reputation of Ms. Naika

in anyway. Hence, the accused are not guilty under this section.

41 Explanation 4:- No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person………” 42 J Jayalalitha v Arcot N Veerasamy, 1997 Cr LJ 4585(Mad.). 43 Empress v. McCarthy, (1887) ILR 9 All 420.

44 S.501, BPC:- “ Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or fine, or with both.”



D. That the Ingredients of Section 502, BPC have not been fulfilled.

Section 50245, BPC provides for Punishment for Sale of any Printed or Engraved substance

containing Defamatory matter with the knowledge that it contains such matter. However, in

the present case, as have been already discussed, the accused had no knowledge that the

alleged defamatory material contained any such thing which could in anyway defame Ms.

Naika. It is also important to note that Ms. Naika was fully aware of the whole script and cast

of the movie from the very first day and voluntarily started and completed majority of the

project. Therefore, the accused are not guilty under this section.

III. THE ACCUSED ARE NOT LIABLE FOR PUNISHMENT UNDER SECTION 385

OF BPC

Section 38346 states the offence of Extortion and Section 38547 Is for Attempt to commit

Extortion.48Defense counsel contends here, the charge of Section 385 BPC is not

maintainable in the present case; hence my client is not liable.

45 S. 502, BPC:- “Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter , shall be punished with simple imprisonment for a term which may extend to two years, or fine, or with both.” 46 Section 383. Extortion.—Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion” 47 Section 385. Putting person in fear of injury in order to commit extortion - Whoever, commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.' 48 Biram Lal and Ors. v. State, RLW 2007 (1) Raj. 713.



A.No Direct or Indirect Evidence to hold the Accused liable for the Threatening calls.

Section 385 states that “Whoever, commits extortion by putting any person in fear of death or

of grievous hurt to that person or to any other, shall be punished with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine.”

In order to complete the act of extortion the person who was put in fear, must have been

Induced to deliver the property. If the act of Inducement caused by the wrong doer should

bring forth Its result at least by the victim consenting to deliver property even If actual

delivery does not take place due to any fortuitous circumstances which would constitute

extortion, but If It falls to produce the requisite effect, the act would remain only at the stage

of attempt to commit extortion.49

In order to seek conviction under section 385 BPC, the Prosecution has to prove the above

ingredients of this section. The Defense Counsel asserts before the Hon’ble Court that the

Prosecution has to prove not only that the Defendant made those calls but also that the

Defendant did so with an intent to dishonestly induce Ms Naika to deliver any property or

valuable security, etc. Nothing in the evidence placed by the prosecution on record proves

that it was the accused who had made the threatening calls and thus the question of

dishonestly inducing Ms Naika does not arise. Every accused is presumed to be innocent

unless the guilt is proved. The presumption of innocence is a human right.50 The Defence

counsel would also like to bring to the notice of the Hon’ble Court that the posters for the

movie “Hit-Factory” were released 2 days prior to the evening she received the two

anonymous phone calls to ‘complete the movie’. The posters of the film “Hit – Factory” were

released on February 14, 2014 and thus the task which was demanded to be done by in those

49 Biram Lal and Ors. v. State, RLW 2007 (1) Raj. 713. 50 Babu v. State of Kerela, (2010) 9 SCC 189.



anonymous calls on 16th February, 2014 had already been accomplished as the movie of the

defendant was already complete. And hence the possibility of the Defendant calling Ms.

Naika and dishonestly inducing her to complete the film has been ruled out.

B. Mere suspicion cannot be the basis for conviction.

In the case of Kali Ram v. State of Himachal Pradesh51, the Apex Court observed, “Another

golden thread which runs through the web of the administration of justice in criminal cases is

that if two views are possible on the evidence adduced in the case one pointing to the guilt of

the accused and the other to his innocence, the view which is favourable to the accused

should be adopted.”

Further the Supreme Court has held in Sri. Sujit Biswas v. State Of Assam52 that

“Suspicion, however grave it may be, cannot take the place of proof, and there is a large

difference between something that `may be proved, and something that `will be proved. In a

criminal trial, suspicion no matter how strong, cannot and must not be permitted to take

place of proof. This is for the reason that the mental distance between `may be and `must be

is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the

court has a duty to ensure that mere conjectures or suspicion do not take the place of legal

proof.”

In the pertinent case, the Prosecution has based their story on mere suspicion. And, Suspicion

however grave, cannot take the place of legal proof.53

51 1973 AIR 2773, 1974 SCR (1) 722. 52 (2013) 12 SCC 406

53 Kumar Singh @ Raju @ Batya v. State of Rajasthan, 2013 (6) SCALE 635



IV. THE ACCUSED IS NOT LIABLE FOR PUNISHMENT UNDER SECTION 227 OF BPC.

A. Section 227 fails to apply in the present case.

Section 22754, BPC deals with the Conditional Remission of Sentences. If a person who has

come out on conditional remission violates any of such conditions, then it amounts to an

offence under this section. But in the present case Mr. Panna has not taken any kind of

remission and hence the question of violation of any condition does not arise.

B.Difference between Remission And Parole

“A remission of punishment assumes the correctness of the conviction, but only reduces the

punishment in part or in whole. An order of remission does not wipe out the offence, nor

does it wipe out the conviction. It has only an effect on the execution of the sentence. In law

the order of remission merely means that the rest of the sentence need not be undergone,

leaving the order of conviction by the Court and the sentence passed by it untouched.”55

“Parole is a form of conditional pardon by which the convict is released before the expiration

of his term, to remain subject, during the remainder of the term, to supervision by public

authority and to return to imprisonment on violation of the condition of the parole. It is

tantamount to mere suspension of the sentence for the time being keeping the quantum of the

sentence intact, i.e., the period in parole is not considered as his being in prison.”56The

Black’s Law Dictionary57, defines Remission as a pardon granted for an offense. It also

54 S.227 of BPC: - “Whoever, Having accepted any conditional remission of punishment, knowingly violates any condition on which such remission was granted, shall be punished with the punishment to which he was originally sentenced, if he has already suffered no part of that punishment, and if he has suffered any part of that punishment, then with so much of that punishment as he has not already suffered”. 55 Sarat Chandra v. Khagendranath, (1961) 2 SCR 133. 56 Charanjitlal v. State (Delhi), (1985) 28 Del LT 92 (96).

57 8th ed. 2004.



defines Parole as the release of a prisoner from imprisonment before the full sentence has

been served. The Hon’ble Supreme Court in a decision by the Constitution Bench in the case

of Sunil Fulchand Shah v. Union of India58 has categorically observed that parole does not

amount to suspension of sentence. In Dadu @ Tulsidas v. State of Maharashtra59, the

Hon’ble Supreme Court held that “Parole is not a suspension of the sentence. The convict

continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail

Manual or the Government orders. "Parole" means the release of a prisoner temporarily for

a special purpose before the expiry of a sentence, on the promise of good behavior and return

to jail. It is a release from jail, prison or other internment after actually been in jail serving

part of sentence.”

From the above definitions of Remission and Parole, it becomes clear that both these terms

are different from each other. While Remission is the reduction of the sentence of the convict

and Parole is temporary release of the convict without changing the character of its

punishment. During parole period there is no suspension of sentence but the sentence is

actually continuing to run during that period also60.

C. That Parole is not counted as Remission under Bambi Prison Manual

Rule 20 of the Bambi Prison Manual, clearly states that “the period spent on parole shall not

count as remission of the sentence.”61 Therefore, section 227 of the BPC cannot apply in this

case as this section deals with the remission of sentences whereas the accused was not given

remission but was granted parole. Hence, it is very clear from all of the above that the

accused is not guilty under section 227 of the BPC. 58 2000 SCC (Cri.) 659. 59 (2000) INSC 511. 60 State of Haryana v. Nauratta Singh & Ors, [2000 (3) SCC 514]. 61 Maharashtra Prison Manual, 1979, Chapter XXXVII, p 546.

PRAYER


In the light of the issues raised, arguments advanced and authorities cited, the counsel for the

defence humbly prays before this Hon’ble Court to acquit the accused ie Mr Panna, Mr Saba

and Mr Jaimil from all the charges in FIR No.101 dated 17th Feb, 2014 in Police Station

Bambe Thane :

1. That the Accused are not liable for offence under section 120 B read with section 34 of

Barata Penal Code.

2. That the Accused are not liable for offence under section 501 and section 502 of Barata

Penal Code.

3. That the Accused are not laible for offence under section 385 of Barata Penal Code.

4. That the Accused is not liable for offence under section 227 of Barata Penal Code.

And pass any other appropriate order as the court may deem fit

And for this act of Kindness, the Defence as in duty bound, shall forever pray.

Respectfully Submitted.

Sd/-

(COUNSEL FOR THE DEFENCE)

PRAYER

X

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