SURANA AND SURANA NATIONAL TRIAL ADVOCACY … · SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT...

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT

COMPETITION, 2015

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IN THE COURT OF SESSIONS

AT DURG, XANADU

S.C. No. 111 OF 2015

STATE OF XANADU PROSECUTION

V.

MR. MANOHAR LAL

& DEFENCE

MR. RAHUL GULATI

WRITTEN ON BEHALF OF THE PROSECUTION

COUNSEL FOR THE PROSECUTION

Team code:

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015

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MEMORANDUM FOR PROSECUTION

TABLE OF CONTENTS

List of Abbreviations………………………………………………………………………...…..4

Index of Authorities ……………………………………………………………………..............5

Table of Cases ……………………………………………………………………………………………...5

Books…………………………………………………………………………………………………….......6

Web Sources…………………………………………………………………………………………………7

Lexicons…………………………………………………………………………………………...…………7

Statutes………………………………………………………………………………………………............7

Statement of Jurisdiction……………………………………………………………………….…8

Statement of Facts…………………………………………………………………………...........9

Sequence of Events………………………………………………………………………...…….10

Statement of Charges…………………………………………………………………………….11

Summary of Arguments………………………………………………………………………….12

Arguments advanced…………………………………………………………………….….……15

1. A1 IS GUILTY FOR MURDER UNDER SECTION 302 AND A2 IS GUILTY FOR

ABETMENT OF MURDER UNDER SECTIONS 302/109 OF BPC…………...……...15

1.1 The direct evidence of PW1 is reliable and trustworthy………..………………….….....15

1.1.1 PW1 cannot be ascribed to be interested witness……………………………………16

1.1.2 Arguendo, there is no plausible explanation to accept the plea of partiality.…...16

1.1.3 The evidence of PW1 stands corroborated in material particulars……….…...….16

1.2 Accused had the motive to do away with the deceased…...…………………………......17

1.2.1 A1 was denied when he was in dire need of money…………………………..…...…...17

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1.3 Medical examination report corroborates the prosecution’s theory…….……..…..……...18

1.4 The act committed by A1 caused injury that he knew might cause death…......……….....19

1.4.1 A1 was aware of medical history of the deceased………………………………...…...19

1.4.2 The iota of discrepancy in medical evidence does not negate the offence of

murder…………………………………………………………………………………...…..20

1.5 A1 can by no means plead necessity…….…………………………………………...…..21

1.4.1 A1 had options that would cause no harm……………………...……………...……....22

1.6 The act committed by A1 was abetted by A2, as a result of which it committed………..22

1.7 Words used by A2 instigated A1 to murder the deceased………………………………..22

2. A1 IS GUILTY FOR FORGERY PUNISHABLE UNDER SECTION 465…………...23

2.1 The act committed by A1 amounts to the making of false document………...……......24

2.2 The False document was made with intent to commit fraud……………………..….…25

2.3 The act of accused caused damage/injury to deceased…………………………………26

2.4 A1 is liable for punishment u/s. 465 of BPC……………………………………...……26

3. A1 AND A2 ARE GUILTY FOR CRIMINAL CONSPIRACY UNDER SECTION

120B OF BPC………………………………………………………………………………27

3.1 There existed a prior agreement between A1 and A2………………………………...….28

3.1.1 Agreement was to commit several illegal acts and its existence can be inferred from

parties conduct……………………………………………………………………………....28

4. A1 AND A2 ARE GUILTY FOR HACKING AND IDENTITY THEFT UNDER

SECTIONS 66 AND 66C OF IT ACT RESPECTIVELY……………………………....30

4.1 The accused had motive to procure money from the deceased…...……………...……...30

4.1.1 Criminal intent was present on the part of the accused………………………………31

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4.2 Materials recovered goes to incriminate the accused……………………...…...………..31

4.2.1 Assuming Argendo, illegal investigation does not negate the charge………………32

4.3 Expert evidence corroborates the prosecution’s theory…………………………….....…32

4.4 Evidence of PW1 is in consonance with that of Prosecution’s case…….………...…......33

Prayer…………………………………………………………………………………………….34

Appendix…………………………………………………………………………………………35

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LIST OF ABBREVIATIONS

AIR

All India Reporter

Bom Bombay High Court

Cal

Calcutta High Court

Cri LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

Del Delhi High Court

DW Defence Witness

Ed. Edition

Guj Gujarat

I.O. Investigation Officer

BPC Bharat Penal Code

Ker Kerala High Court

Mad Madras High Court

P. Page No.

P & H

Punjab & Haryana High Court

PW Prosecution Witness

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec. Section

V. Versus

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INDEX OF AUTHORITIES

TABLE OF CASES:

1. Brij Lal & Anr v. State of Rajsthan, 2006 AIR SCW 3680 (A)

2. State of A.P. v. S. Rayappa, AIR 2006 SC 1643

3. Jagdish Prasad v. State of M.P., AIR 1994 SC 1251.

4. State of Rajasthan v. Om Prakash, (2007) 12 SCC 381

5. Dalbir Kaur v. State of Punjab, AIR 1977 SC 472 at p. 481.

6. State of Rajasthan v. Smt. Kalki, 1981 Cri Lj 1012.

7. State of U.P. v. Kalyan Singh, 1984 (1) Crimes 666

8. Sunil Kumar v. State of Govt. of NCT of Delhi, (2003) 11 SCC 367.

9. Bhimappa Chandappa Hosamani v. State of Karnataka, 2006 AIR SCW 5043.

10. Dalip Singh v. State of Punjab, AIR 1952 SC 54

11. Gajula Venkateswara Rao v. State of A.P. (2002) 6 SCC 487

12. Reddy v. State of Andhra Pradesh, 2006 AIR SCW 4143

13. In Re Marudai 1960 Cr LJ 1102 (Mad).

14. Chandra Prakash Shahi v. State of U.P., (2000) 2 SCC 554

15. Rajendra kumar v. State of Punjab, 1996 Cr LJ 960

16. Udhay Pal Singh v 542. State of U.P., 1972 SC

17. Antrum v. State of Maharashtra, AIR (2008) SC 409.

18. Dendati Sannibabu v. Varapureddi Sannibabu, (1959) Cr LJ 167 (AP).

19. Laxman Sahu v. State of Orissa, AIR 1988 SC 83.

20. Ami Lal v. State of Rajasthan, (1996) Cr LJ 1585 (Raj).

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21. Noor Mohammed Momin v. State of Maharashtra, AIR 1971 SC 885.

22. State v. Savithti, 1976 Cr LJ 37 (Mad).

23. Daniel Hailey Walcott v. State of Madras, AIR 1968 Mad 349.

24. Dr Vimla v. Delhi Administration, Cri LJ 434 (SC).

25. Mathew v. George, (1989) I Cr LJ 726 (Ker).

26. Dhunum Kazee, (1882) 9 Cal 53.

27. KTMS Mohd v. Union of India, (1992) 3 SCC 178.

28. Devender Pal Singh v. State (NCT of Delhi) & Anr (2002) 5 SCC 234.

29. Bimbadhar Pradhan v. State of Orissa, (1956) Cr LJ 831 (SC).

30. State of Tamil Nadu v. Nalini & Ors, AIR 1999 SC 2640.

31. D.P.P. v. Stewart, (1983) 2 A.C. 91.z

32. R v. King, (1966) Crim. L.R. 280.

33. M.S. Reddy v. State Inspector of Police A.C.B. Nellore, 1993 Cr LJ 558 (AP).

34. Bhagwandas v. State, AIR 1974 SC 898.

35. Sivan v. State of Kerala, 2007 (4) CRJ 381.

36. Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322

37. Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.

38. Abhinav Gupta v. State of Haryana, (2008) Cri LJ 43 (P&H).

39. State of Maharashtra v. M.H. George, AIR 1965 SC 722.

BOOKS:

1. Ratanlal & Dhirajlal, The Indian Penal Code, 32nd Enlarged Ed., Reprint 2012.

2. Sarkar, The Code of Criminal Procedure, 15th Ed., 1993.

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3. Nelson R. A., Indian Penal Code, (10th Ed. 2008).

4. Lyon’s Medical Jurisprudence & Toxicology, 11th Ed.

5. Modi’s Textbook on Medical Jurisprudence and Toxicology, 24th Ed.

6. Medicine and Law, Justice Kannan, 1st Ed. 2014.

7. Glanville Williams on Text Book of Criminal Law, 2nd Ed., 1995

8. Pillay, Modern Medical Toxicology, 6 Ed., 2004

LEXICONS:

1. Wharton’s Law dictionary,(9th Ed. 2012)

2. Aiyar, P Ramanatha, The Law Lexicon, (4thEd. 2014.

WEB SOURCES:

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

2. http://www.scconline.com

3. http://www.legalcrystal.com

4. http://www.manupatra.com

STATUTES:

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

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

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

4. The Information Technology Act, 2000 (Act 21 of 2000)

5. The Drugs and Cosmetics Act, 1940 (Act 23 of 1940)

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

http://www.scconline.com/

http://www.legalcrystal.com/

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STATEMENT OF JURISDICTION

The Prosecution invokes the jurisdiction of this Hon’ble Court U/s. 177 read with Sec. 209 of the

Code of Criminal Procedure, 1973. This memorandum for the prosecution is submitted to the

Court u/s. 314 of Code of Criminal Procedure, 1973.

Section 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.Commitment of case to Court of Session when offence is triable exclusively by

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

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by

the Court of Session, he shall-

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

(b) subject to the provisions of this Code relating to bail, remand the accused to custody

during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which

are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

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STATEMENT OF FACTS

[A] BACKGROUND:

1. Mr. Manohar Lal lost his parents when he was ten years and stayed with his uncle karan’s (father’s

younger brother) family. Being studious Manohar scored good marks in +2 and joined in a reputed

medical college. He often borrowed money from his friend Rahul in order to meet his expenses. On 1

August 2014, when Mano asked Karan why his college was not paid, he abused Mano and Devika

(Karan’s wife) also joined him saying that he has to stop depending on them. On 4 August 2014,

Karan whispered to Mano to transfer some money to Mano’s account to pay his college fees. Then he

dozed off. Mano opened the laptop and transferred 2.50 lakhs to his account towards college fees and

his pocket expenses. Normally Karan used to transfer 2.25 lakhs to his account every semester.

[B] EVENTS THAT UNFOLDED AND LED TO THE COMMISSION OF THE ALLEGED CRIMES

2. On 3 August 2014, Karan complained of severe pain in chest and stomach. His doctor Dr.

Choudhary was out of town and therefore Mano wrote a medicine “Angispan” in a paper that was

later found to be Dr. Choudary’s prescription and injected it to Karan. Then Karan became normal

for few minutes and then started to have fits and seizure and subsequently died.

3. While arranging the belongings of Karan prior to the rituals, Devika and Raghav (Karan’s son)

found an insurance policy for 2 Crore rupees that was nominated to Mano and also of transfer of 2.50

lakhs to Mano’s account. They became suspicious of this and informed the police forthwith. The

police reached the spot at once and sent the body for autopsy and thereafter viscera to forensic lab.

The laptops, desktops and the key logger were also recovered and sent to forensic lab. The autopsy

report revealed that the death was unnatural. Then Mano and Rahul were arrested and remanded to

judicial custody. Having completed the investigation, the final report was filed in the Magistrate’s

Court which committed the case to the Court of Sessions, Durg.

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SEQUENCE OF EVENTS

Serial

no.

DATE EVENT DESCRIPTION

1 2011 A1 joined in medical college

2 October 2013 A1 borrowed money from A2 to go for adventure trip

3 May 21 2014 The deceased fell very ill and told A1 about the life

insurance policy taken in his name for A1’s benefit.

4 July 4 2014 The deceased’s condition worsened and medications

were changed and strong medicines were prescribed.

5 September 2014 A1 was declared defaulter and given notice to pay the

college fee and had quarrel with deceased and his wife

regarding money

6 August 2 2014 A1 transferred 2.50 lakhs to his bank account from

deceased’s account.

7 August 3 2014 A1 administered the drug ‘angispan’ to the deceased

who fell ill and subsequently the deceased died.

8 August 4 2014 Dr. Choudary (DW4) came to know about A1

prescribing the drug on his prescription paper

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STATEMENT OF CHARGES

BEFORE THE HON’BLE COURT OF SESSIONS, DURG

State of Xanadu

v.

Mr. Manohar Lal and Another

S.C. No. 111 of 2015

After complying with the statutory requirements the Court of Sessions framed charges

against the accused under sections

a. Mr. Manohar Lal (A1) has been charged under sections 302, 465 r/w 34, 120B of Bharat

Penal Code, 1860 and Sections 66 and 66C of the Information Technology Act, 2005.

b. Mr. Rahul Gulati (A2) has been charged under sections 302, 465 r/w 34, 120B, 109 of

Bharat Penal Code, 1860 and Sections 66 & 66C of the Information Technology Act,

2005.

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SUMMARY OF ARGUMENTS

1. A1 is guilty for murder under Section 302 and A2 is guilty for abetment of murder under

Sections 302/109 of BPC.

It is humbly submitted before the Hon’ble Court of Sessions, Durg, that the first accused

(hereafter A1) is liable to be convicted under Section 302 of the Bharat Penal Code, 1860

(hereafter BPC) for murdering Mr. Karan (hereafter the deceased) and the second accused

(hereafter A2) is guilty for abetting that offence by conspiracy.

To prove the charge of murder under Sec. 302 of BPC, the Prosecution relies on direct evidence

of PW1, medical evidences and motive to corroborate its case. Further the Prosecution submits

that the facts and figures of the case stands itself proved along with the substantive evidence of

prosecution witnesses who are competent to prove the charge of Sec. 302 of BPC against A1

and A2.

2. A1 is guilty for forgery under Section 465 of BPC .

It is humbly submitted before the Court of Sessions, Durg, that the first accused (hereafter A1)

and the second accused (hereafter A2) are liable to be convicted U/s 465 read with Sec. 34 of

BPC. The evidence on record goes to show that A1 with the intention to defraud altered a

medical prescription dishonestly and fraudulently without being warranted by the original

maker of the document to avail a prescription drug from the pharmacy which resulted in causing

injury to the deceased. To prove the same, the Prosecution relies on direct evidence of PW1 and

Dr. Choudhary’s prescription for late Mr. Karan (hereafter the deceased).

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3. A1 and A2 are guilty for criminal conspiracy under Section 120B of BPC.


and the second accused (hereafter A2) are guilty for criminal conspiracy. A1 and A2 agreed to

commit several overt acts viz. to hack into the deceased’s computer system and thereby to

retrieve personal banking password of the deceased to transfer the money from his account

unauthorisedly and further to do away wih the deceased in order to gain monetary benefit that

arise out of the insurance policy taken by him in favour of A1. To prove the charge of

conspiracy, the Prosecution relies on circumstantial evidence which stands corroborated by the

acts, statements and conduct of the accused.

4. A1 and A2 are guilty for hacking and identity theft under Sections 66 and 66C of IT Act

respectively.


and the second accused (hereafter A2) are guilty for hacking and identity theft under Sections

66 and 66C of the Information Technology Act, 2000 (hereafter the IT Act). To prove the

aformentioned charges, the Prosecution relies on circumstantial evidence which stands

corroborated by motive, recovery, expert evidence and evidence of PW1.

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ARGUMENTS ADVANCED

1. A1 IS GUILTY FOR MURDER UNDER SECTION 302 AND A2 IS GUILTY FOR

ABETMENT OF MURDER UNDER SECTIONS 302/109 OF BPC.



(hereafter BPC) for murdering Mr. Karan (hereafter the deceased) and the second accused

(hereafter A2) is guilty for abetting that offence by conspiracy under Section 109 of BPC. The

Prosecution submits that it relies on the following factors to prove the case and establish the guilt

of the accused. The following are:

(i) Direct evidence of PW1;

(ii) Motive; and

(iii) Medical evidence.

1.1 The direct evidence of PW1 is reliable and trustworthy.

Relationship is not a factor to affect the credibility of a witness.1 By now it is a well-

established principle of law that testimony of a witness otherwise inspiring confidence cannot be

discarded on the ground that he being a relation of the deceased is an interested witness.2 The

Court can act on the testimony of such witness provided he is wholly reliable.3 Testimony of

solitary witness can be basis of conviction even if he is related to the deceased.4

1 Brij Lal & Anr v. State of Rajsthan, 2006 AIR SCW 3680 (A)

2 State of A.P. v. S. Rayappa, AIR 2006 SC 1643

3 Jagdish Prasad v. State of M.P., AIR 1994 SC 1251.

4 State of Rajasthan v. Om Prakash, (2007) 12 SCC 381

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1.1.1 PW1 cannot be ascribed to be an interested witness.

A close relative who is very natural witness in the circumstances of a case cannot be

regarded as an interested witness.5 Furthermore, a witness who is a natural one and is the only

possible eye-witness in the circumstances of the case cannot be said to be interested.6 If the eye

witnesses are natural witnesses of the occurrence, it is not necessary that their testimony be

discarded, merely because they were related to the deceased.7

1.1.2 Arguendo, there is no plausible reason to accept the plea of partiality.

There is no proposition in law that relatives are to be treated as untruthful witnesses.

On the contrary, reason has to be shown with cogent evidence when a plea of partiality is raised

to show that the witnesses had reason to shield actual culprit and falsely implicate the accused.8

1.1.3 The evidence of PW1 stands corroborated in material particulars.

The Prosecution submits that the A1 injected a drug on the person of Mr. Karan

(hereafter the deceased) few minutes before the death in issue took place and there is a direct

evidence of this fact. The aforesaid act took place in the presence of PW1 which makes him

natural witness. He has made a mention of the same in his statement.9 The evidence of natural

witnesses cannot be discarded merely because they are connected with the victim.10 It has also

been corroborated in material particulars by the medical evidence which states that the drug

5 Dalbir Kaur v. State of Punjab, AIR 1977 SC 472 at p. 481.

6 State of Rajasthan v. Smt. Kalki, 1981 Cri Lj 1012.

7 State of U.P. v. Kalyan Singh, 1984 (1) Crimes 666

8 Lala Ram v. State of Rajasthan, (2007) SCC (Cri) 634.

9 Moot Proposition, Statements, p. 14

10 Gajula Venkateswara Rao v. State of A.P. (2002) 6 SCC 487

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alleged to have been administered is found on the blood of the deceased. 11 It is further

corroborated by complaint and recovery. Thus it is apparent that A1 injected a drug on the

person of the deceased and it is irrefutable.

1.2 The accused had motive to do away with the deceased

The existence of motive from the point of view of evidence, would be a relevant fact in

every criminal case.12_Motive is that which incites or stimulates a person to do an act.13_ Presence

or absence of motive is relevant to prove guilt.14_ It can serve as a link forming chain of events.15

A person’s intention is his decision to do or not to do a particular act; his motive is his reason for

forming that decision. Any fact which shows or constitutes a motive for fact in issue or relevant

fact is relevant under Sec. 8 of the Bharat Evidence Act, 1872 (hereafter the Evidence Act).

1.2.1 A1 was denied when he was in dire need of money .

The prosecution submits that the A1 had motive to take the life of his uncle Mr.

Karan (hereafter the deceased). Two days before the death in issue took place, when A1 asked

money for his college semester fees, he was abused by the deceased and his aunty Mrs. Devika

(hereafter the complainant) that he was grown up and he should take care of himself.16 The

complainant, being in charge of financial matters of the house after the deceased fell ill, had

already stopped paying the semester fees for A1 let alone other expenses.

11 Ibid, Annexure 4.

12 In Re Marudai 1960 Cr LJ 1102 (Mad)

13 Chandra Prakash Shahi v. State of U.P., (2000) 2 SCC 554

14 Rajendra kumar v. State of Punjab, 1996 Cr LJ 960

15 Udhay Pal Singh v 542. State of U.P., 1972 SC

16 Moot Proposition, Outline, Para 18

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A perusal of the facts of the case on record suggests that A1 being pressurized by A2 to return

the money borrowed from him within one week17 and found it hard to ask the deceased.18 He was

denied money for the college fees itself which he usually used to avail from him. He had no

other source of income. In that case, it was impossible for A1 to repay the huge debt which

exceeded one lakh rupees. That time the accused came to know of the insurance policy for 2

crores which the deceased had taken long ago nominating the A1 as beneficiary. Further, A2

always reminded A1 how rich he could be if the deceased had to die and listening to this rather

than getting furiated Mano would join the laughter along with Rahul.19

In the light of these facts, it can be inferred that there was motive for the accused to take the life

of the deceased in order to gain monetary benefit failing which he might have got into big

trouble and if the deceased passed away that would bring the accused a lumpsum money of two

crores rupees and thus subsequently made use of the situation that arose to murder the deceased.

1.3 Medical examination reports corroborates the prosecution’s theory.

It is submitted that, in the instant case, the medical evidence corroborates the direct

evidence. The deceased was examined by a registered medical practitioner (hereafter RMP) in

compliance of Sec. 174(3) of Cr.P.C, 1973. The autopsy report20 and forensic report21 states the

cause of death as cardiac arrest. The former report states that the death was a result of cardiac

arrest caused by drug reaction or over dose. The latter report states in detail that the death was

17 Ibid, Para 5

18 Ibid, Para 16

19 Ibid.

20 Moot Proposition, Annexure 3

21 Moot Proposition, Annexure 4

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due to air embolism in the artery thereby causing blockage to oxygen rich blood reaching the

heart causing damage to the it. Damage to the heart led to arrhythmia which further led to cardiac

arrest. In either theory, the death was prompted by the act of commission on the part of A1.

1.4 The act committed by A1 caused injury that he knew might cause death.

The medical evidence goes to suggest that the death was unnatural. In the instant

case, A1 administered “angispan” to the deceased through a syringe into the veins.22 ‘Angispan’

whose generic name is “Glyceryl Trinitrate” which contains substantial amount of ‘nitroglycerin’

is an organic medicine prescribed for angina and heart failure.23

1.4.1 A1 was aware of the medical history of the deceased.

As in the case of any drug, there are certain precautions that must be exercised before

‘angispan’ is prescribed to the patient. They are, inter alia, caution should be exercised in

patients with history of liver or kidney impairment, lung disease, etc. Further, such patient should

not consume alcohol. If the precautions are not adhered to while administering ‘nitroglycerin’ it

may lead to severe illness which may also result in death of the recepient of the drug.24

It is presumable by virtue of Sec. 114 of the Evidence Act, 1872 that since A1 was a third year

medical student who has seen the procedure of injecting through intravenous and practiced the

same during his training at hospital attached to his medical college and also considering the fact

that he claims to know about the said drug,25 he knew that when and how ‘angispan’ should be

22 Statement of DW1

23 Pillay, Modern Medical Toxicology, P. 30

24 Pillay, Modern Medical Toxicology, P. 30.

25 Moot Proposition, Outlines, Para 21

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administered or at least how to apply intravenous injection, for that matter, although he is not

authorised by law to do so unless under direct supervision of RMP.

It is further presumable that he was aware of the precautions that should be exercised in patients

with history of medication before prescribing ‘angispan’. A1 looker after the basic needs of the

deceased26 and knew that he was under medication for high BP, diabetes, obesity. He further

knew that he was an alcoholic27 and thereby suffered from liver cirrhosis. Thus he cannot escape

saying he was unaware of those previous medications.

By taking into account all the above stated facts it is clear that A1 knew that administering the

‘angispan’ to the deceased would put him in jeopardy because he was already under prescription

of strong drugs and his liver was damaged. Further the deceased was under the influence of

alcohol before the drug in issue was administered. Without regarding all these conditions, A1

proceeded to administer the drug to the deceased.

The apex court held in a case by reference to explanation 2 to Section 299, BPC that where death

is caused by bodily injury shall be deemed to have caused the death, although by resorting to

proper remedies and skilful treatment the death might have been prevented.28

1.4.2 The iota of discrepany in the medical evidences does not negate the offence of

murder.

The prosecution submits that the deceased happened to die due to the overt act

committed by A1. Although there is iota of discrepancy in the medical evidence, still A1 can be

26 Ibid, Para 8

27 Ibid, Para 7

28 Antrum v. State of Maharashtra, AIR (2008) SC 409.

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found guilty. A persual of both, autopsy report and forensic report, makes one fact clear i.e.

death was caused by an act of commission on the part of A1. If death was triggered by drug

reaction or over dose as opined by PW3 (Doctor who conducted autopsy) or by air embolism as

concluded by PW5, either way the act committed by A1 caused his death.

1.5 A1 can by no means plead necessity.

The Prosecution submits that the present case will not fall under any of the general

exceptions in the BPC and therefore plea of necessity cannot be entertained. The word

‘necessity’ as it is customarily used, has a special meaning. The immunity from criminal liability

under Sec. 81 of BPC will be available only when an offence is committed without any criminal

intention, to cause harm and in good faith and if such offence is committed for the purpose of

preventing or avoiding other harm to person or property.29

1.5.1 A1 had options that would cause no harm.

The accused had ample of options rather than doing an illegal act to prevent the greater

harm, if any. He could have called for medical support or for an ambulance but he chose to take

everything into his own hands. In the present case, the benefit under Sec. 81 or any provisions

which falls under the general exceptions of BPC cannot be availed since there was apparent

criminal intention on the part of the accused as it has been established. Assuming arguendo, the

onus of proof is upon the accused to establish that his case would fall under any of the general

exceptions in the BPC.30

29 Dendati Sannibabu v. Varapureddi Sannibabu, (1959) Cr LJ 167 (AP).

30 Laxman Sahu v. State of Orissa, AIR 1988 SC 83.

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1.6 The act committed by A1 was abetted by A2 as a result of which it was committed.

A person can be charged and convicted for abetting an offence if he has instigated

another to commit a criminal act.31 An abettor’s presence is not always required for attracting

Sec. 109 of BPC. He becomes liable even though he was not present when the perpetrator

committed the abetted offence provided prosecution proves that he abetted the offence.32

The Prosecution submits that A2 had actively instigated A1 to murder the deceased. It is

apparent from the facts on record that A2 pressurized A1 to return his money.33 He knew well

that he would not get such a huge amount back from A2 unless A2 gets it from the deceased.

After learning about the life insurance policy taken by the deceased in his name for A2’s benefit,

A2 started to tell him that he could amass a huge fortune if the deceased had to die. The facts on

record manifests that A2 always reminded A1 how rich he could be if the deceased had to die.34

1.7 Words used by A2 instigated A1 to murder the deceased.

Where abetment is by instigation actual words used for instigation need not be

proved. There has to be a reasonable certainty in regard to the meaning of the words used by the

inciter to judge whether or not there was an incitement, but it is no necessary in law to prove the

actual words for the incitement.

Thus where the Court is reasonably certain of the meaning which A wished to convey by his

words to his co-accused B and know how B reacted after hearing the words spoken to him by A,

31 Ami Lal v. State of Rajasthan, (1996) Cr LJ 1585 (Raj).

32 Noor Mohammed Momin v. State of Maharashtra, AIR 1971 SC 885.

33 Moot Proposition, Outlines, para 5.

34 Ibid

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the immediate reaction in a particular manner given by B to the words addressed by A, afford a

good deal of guarantee that the words used by A were words of incitement.35

A perusal of the above illustration cited by the apex court and applying it in the case at hand

shows that hearing A2’s words A1’s immediate reaction was not that he became furius despite

his alleged love for the deceased but enjoyed a good laugh and in due course of time he did away

with the deceased in order to amass a huge sum of money. This fact must be borne in mind as it

is relevant u/s. 1436 of the Evidence Act since it shows the state of mind of A2.

Therefore, considering the above placed submissions, this Hon’ble Court must find A1 guilty for

the offence of murder under Sec. 302 of BPC and A2 guilty for the offence of murder under Sec.

302 read with Sec. 109 of BPC.

2 A1 IS GUILTY FOR FORGERY PUNISHABLE UNDER SECTION 465.



(hereafter BPC) for making a false document by forgery and to prove the same Prosecution

relies on the following:

(i) Direct evidence of PW1; and

(ii) Dr. Choudhary’s prescription for karan.

In order to bring home the charge of forgery, the Prosecution has to prove that the accused has

made a false document or part of such a document and also to establish that the document was

35 Prem Narain v. State, AIR 1957 All 177

36 Refer Appendix

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forged to achieve any of the intentions enumerated in Sec. 46337 of BPC. The said provision,

inter alia, provides that whoever Makes a false document with intent to cause damage or injury

to any person; or with intent to commit fraud is said to commit forgery.38

2.1 The act committed by A1 amounts to the making of false document.

A false document made wholly or in part by forgery is designated “a forged document”.39

The person who makes a false document commits forgery.40 Clause second of Sec. 464 evisages

that dishonest or fraudulent alteration of a document in any material part without lawful authority

after it has been made or executed by a person who may be living or dead is nothing short of

making of false document.41 As to what amounts to material alteration, an old english decision

lays down that any alteration of an instrument is material if it alters the business effect of the

instrument.42

It is also essential that the false document or the false electronic record, when made, must either

appear on its face to be, or be in fact one, which, if true, would possess some legal validity. In

other words, the document must be legally capable of effectivating the fraud intended.43

In the instant case, the DW4 (a registered medical practitioner) had prescribed certain drugs for

the deceased as he was under medication.44 A1 wrote a medicine on that prescription paper of

37 Refer Appendix

38 Daniel Hailey Walcott v. State of Madras, AIR 1968 Mad 349.

39 Section 470 of BPC.

40 Dr Vimla v. Delhi Administration, Cri LJ 434 (SC).

41 Emperor v. Surendra Nath Ghosh, 12 Cal LJ 277.

42 Sdfell v. Bank of England, (1892) 9 QBD 555

43 Mathew v. George, (1989) I Cr LJ 726 (Ker).

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DW4 to avail a prescription drug ‘angispan’ from the pharmacy.45 The same has been witnessed

by PW1 who is a natural witness.46 This act of the accused amounts to making of a false

document as defined u/s. 46447 of BPC.

2.2 The false document was made with intent to commit fraud.

Prescription drugs are a class of drugs which cannot be purchased over the counter

without the prescription of a registered medical doctor. Schedule H of the Drugs and Cosmetics

Rules, 1945 contains the exhaustive list of prescription drugs. Angispan in liquid form is a

prescription drug as it contains Nitroglycerin which falls under Entry 215 of Schedule H48 of the

said Rules. Had A1 not written the medication on the prescription paper of DW4, the said drug

would not have been availed. The mandate of law is that the pharmacist is supposed to sell the

prescription drugs on a valid medical prescription only. In the present case, the pharmacist sold

the drug believing that the prescription was genuine. Thus the forged document was capable of

effecting the fraud intended and subsequently the fraud intended was committed.

Therefore, it is apparent that the accused had defrauded the pharmacist by fraudulently obtaining

the drug. It is to be noted that a general intention to defraud, without the intention of causing

44 Moot Proposition, Outlines, Para 19

45 Ibid.

46 Moot Proposition, Statements, Para 4.

47 Refer Appendix

48 Schedule H is a class of ‘prescription drugs’ in India which cannot be purchased over the counter without the

prescription of a qualified doctor because such drugs may cause serious illness if not prescribed my a registered

medical practitioner.

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wrongful gain to one person or wrongful loss to another, will be sufficient to support a

conviction.49

2.3 The act of the accused caused damage/injury to the deceased.

The Prosecution submits that, primarily, A1 intentionally wrote a bogus prescription and

fraudulently obtained the drugs from the pharmacy. The drug fraudulently obtained from the

pharmacy was administered to the deceased by the accused himself which resulted in the death

of the deceased. Thus it is clear that there was intention on the part of the accused to cause

damage/injury to a person as defined U/s. 46450 of BPC.

2.4 A1 is liable for punishment U/s. 465 of BPC.

To conclude, in the instant case, A1 altered the prescription sheet by adding a drug by

himself which was not warranted by DW4 ipso facto amounts to fraudulent alteration of a

document which attracts section 465 of BPC. There was no basis to believe that the paper on

which A1 wrote the medication was an empty prescription of DW4 and therefore he was not

aware of it as it is quite improbable for DW4 to leave his empty prescription sheet at the patient’s

residence. Assuming arguendo, it is for the accused to prove the same as the burden of proof will

shift on him under Sec. 10651 of the Evidence Act. Therefore, this Hon’ble Court should find the

accused guilty of forgery U/s. 465 of BPC.

49Dhunum Kazee, (1882) 9 Cal 53.

50 Refer Appendix

51 Refer Appendix.

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3 A1 AND A2 ARE GUILTY FOR CRIMINAL CONSPIRACY UNDER SECTION

120B OF BPC.


(hereafter A1) and the second accused (hereafter A2) are liable to be convicted under Section

120B52 of the Bharat Penal Code, 1860 (hereafter BPC) for committing the offence of criminal

conspiracy.

A perusal of Sec. 120A manifests that the following will form the basis for holding the accused

persons liable for the charge of criminal conspiracy:

1. There must be an agreement between the parties who are alleged to conspire;

2. That the agreement should be

a. for doing an illegal act; or

b. for doing by illegal means an act which may not itself be illegal.53

Criminal conspiracy being an inchoate offence, an agreement to commit a crime per se is made

punishable irrespective of the commission.54

The Prosecution submits that the evidence on record is sufficient to prove that the accused have

committed criminal conspiracy. The circumstantial evidence which stands corroborated goes to

show that there was a prior meeting of minds between A1 and A2 to hack into the deceased’s

computer to steal his personal net banking paswword in order to transfer money without the

latter’s knowledge and also to do away with him.

52 Refer Appendix.

53 Yogesh v. State of Maharashtra, AIR 2008 SC 2991.

54 KTMS Mohd v. Union of India, (1992) 3 SCC 178.

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3.1 There existed a prior agreement between A1 and A2.

Agreement is the rock bottom of criminal conspiracy. It consists of the scheme or

adjustment between two or more persons which may be express or implied or partly express and

partly implied. Agreement is sine qua non for constituting the offence of criminal conspiracy. It is

complete when the combination is framed to commit an offence. 55 It is immaterial whether

anything has been done in pursuance of the unlawful agreement.56 It is not necessary that all the

conspirators must know each and every detail of conspiracy. Neither is it necessary that every one

of the conspirators takes active part in the commission of each and every conspiratorial acts.57 The

Court can convict both of the main offences and with consipiracy because the latter does not

merge in the consummated crime.58 Further, an agreement to commit the crime on a condition,

namely, if the oppurtunity shall arise, is sufficent.59

3.1.1 That agreement was to commit several illegal acts and its existence can be inferred

from parties conduct.

There cannot always be much direct evidence about conspiracy. 60 It has, oftener than

not, to be inferred from the acts, statements and conduct of the parties to the conspiracy.61 Under

Sec. 43 of BPC, an act would be illegal if it is an offence or if it is prohibited by law.

55 Devender Pal Singh v. State (NCT of Delhi) & Anr (2002) 5 SCC 234.

56 Bimbadhar Pradhan v. State of Orissa, (1956) Cr LJ 831 (SC).

57 State of Tamil Nadu v. Nalini & Ors, AIR 1999 SC 2640

58 D.P.P. v. Stewart, (1983) 2 A.C. 91.

59 R v. King, (1966) Crim. L.R. 280.

60 M.S. Reddy v. State Inspector of Police A.C.B. Nellore, 1993 Cr LJ 558 (AP).

61 Bhagwandas v. State, AIR 1974 SC 898.

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The defence submits that conspiracy can be inferred from the following acts, statements and

conduct of the accused persons mentioned below:

(i) Both A1 and A2 used to sit late at night fiddling with their computers and the desktop

simultaneously for hours doing something mysterious;62

(ii) They acted in unison and retrieved the personal banking password of the deceased by

hacking and transfered the money unauthorisedly from his bank account;

(iii) A1 was trying all the time to keep himself away from his family members even on

important occasions and on being asked remained mysterious;63

(iv) A2 actively instigated A1 by saying that he could become a rich man if the deceased

had to die someway and listening to this A1 would have a good laugh with A2 rather

than getting furiated;64 and

(v) Above all, both the accused persons shared a common goal i.e. to gain monetary

advantage for which the deceased had to die.

It is submitted that the aforementioned facts are sufficient to show that they were planning

something secret. The consummation of the offences that were conspired by them corroborates

further the prosecution case. This is enough to constitute a prima facie evidence of conspiracy

within the meaning of Sec. 10 of the Evidence Act and to bring the accused within the jacket of

punishment of all for the act of one. Therefore, this Hon’ble Court should find the accused

persons guilty of criminal conspiracy u/s. 120B of BPC for the above mentioned acts.

62 Moot Proposition, Outlines, para 4

63 Ibid, Annexure 5, Statement of PW1.

64 Ibid, Outlines, para 16.

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4 A1 AND A2 ARE GUILTY FOR HACKING AND IDENTITY THEFT UNDER

SECTIONS 66 AND 66C OF IT ACT RESPECTIVELY.

It is humbly submitted before the Court of Sessions, Durg, that the first accused

(hereafter A1) and the second accused (hereafter A2) are guilty for hacking and identity theft

under Sections 6665 and 66C66 of the Information Technology Act, 2000 (hereafter the IT Act).

To prove the aformentioned charges, the Prosecution relies on circumstantial evidence which

stands corroborated by following factors, namely;

(i) Motive and mens rea;

(ii) Investigation and recovery;

(iii) expert evidence; and

(iv) evidence of PW1.

4.1 The accused had motive to procure money from the deceased.

Motive is that which incites or stimulates a person to do an act.67 It is an important factor

when prosecution relies upon circumstantial evidence.68 It may serve as one of the links in the

chain of circumstances. Presence or absence of motive is relevant to prove guilt. Thus motive

behind the crime is a relevant fact of which evidence can be given.69 Motive is to be inferred

from facts of a particular case.70

65 Refer Appendix

66 Refer Appendix

67 Chandra Prakash Shahi v. State of U.P., (2000) 5 SCC 162.

68 Sivan v. State of Kerala, 2007 (4) CRJ 381.

69 Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322

70 Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.

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In the present case, the motive that stimulated the accused to commit the crime was to procure

money. The fact that A1 was pressurized by A2 to return his money which exceeded more than a

lakh rupees and A1 knew that he would never get that kind of money from his family has already

been established in the earlier submissions. As there was no choice left, A1 sought the help of

A2 who was good at hacking to help transfer money through net banking from the deceased’s

bank account to his without the former’s knowledge.

4.1.1 Criminal intent was present on the part of the accused.

In order to bring bring home an offence under Section 66 of the IT Act, 2000 it is

necessary to prove that the accused had necesaary mens rea to commit the offence.71 He must

have had criminal intention. An act is intentiontal if it exists in idea before it exists in facts.72 In

the instant case, the recovery being corroborated by other evidences goes to suggest that the

accused had mens rea to hack into the deceased’s computer system.

4.2 The materials recovered goes to incriminate the accused.

It is submitted that the investigating agency had recovered three articles viz. (i) a desktop

and its hard drive, (ii) a small USB look alike hardware device and (iii) both deceased’s and A1’s

laptops from the spot of occurrence which had been duly attested by two panchas.73 Further, it

was found that an keylogger software was installed in the hard drive that was recovered.74

71 Abhinav Gupta v. State of Haryana, (2008) Cri LJ 43 (P&H).

72 State of Maharashtra v. M.H. George, AIR 1965 SC 722.

73 Moot Proposition, Annexure 2.


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4.2.1 Assuming Argendo, illegal investigation does not negate the charge.

In the instant case, if the accused contend that the investigation was illegal since it was

carried on by a police officer not empowered, such contention can hardly be given weight. Sec.

156(2) of Cr.P.C ensures that once an investigation is ccommenced under Sec. 156(1), the same

cannot be interrupted on the ground that police officer was not empowered to investigate.75

Arguendo, no proceedings against the accused can be quashed solely on the ground of illegal

investigations. It should be seen whether the illegal investigation had resulted in prejudice to the

accused.76

4.3 Expert evidence corroborates the prosecution’s theory.

The Prosecutions submits that the opinion rendered by Dr. Hashmeet (hereafter PW4) is

relevant and admissible in evidence u/s 45-A of the Evidence Act. PW4, in his evidence stated

that the small USB look alike hardware device was a keylogger that can be attached to a

computer which is used to retain the keying pattern of the user.77 It will retain in itself a copy of

any command given through the keyboard. Thereby, it can be used to retrieve the passwords

without the knowledge of the original user. He further opines that keylogger software, which was

found to be installed in the hard drive recovered from the spot of occurrence, is similar but runs

on software level. It is used to retrace the sites visited by the user and also to trap passwords.

Keyloggers are often used to steal passwords and credit card information.78

75 Rasiklal Dalpatram Thakkar v. State of Gujarat, (2010) 1 SCC 1.

76 State of A.P. v. F.V. Narayana, AIR 1971 SC 811.

77 Moot Proposition, Annexure 7.

78 Ibid.

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4.4 Evidence of PW1 is in consonace with that of prosecution’s case.

It is the evidence of PW1 that the accused used to sit together fiddling with the desktop

for hours even late at night and do something mysterious. He further states that many a times

they would connect their laptop with the desktop and work as though they were on a mission.79

4.5 The circumstances taken together points to the guilt of the accused.

It is submitted that the accused have installed a keylogger in the computer to retrieve the

net banking password of the deceased and the password retrieved was used to log into deceased’s

bank account through online banking to transfer money to A1’s account unauthorisedly. The

articles recovered from the spot of occurrence corroborates the same. This act amounts to

hacking identity theft as defined under sections 66 and 66C of IT Act, 2000.

Arguendo, it could not be presumed that those articles may have been used by someone else as it

is manifest from the evidence on record that it is the accused persons who always used to

experiment with computers and it has further been corroborated by PW1. Neither could it be

presumed that the deceased himself transferred money to A1 since it was PW2 who was in

charge of financial matters of the house. In addition to all these fcts, it is established that the

accused had motive to do commit the crime. All these factors taken together goes to show that

only the accused could be the authors of the crime. Since the guilt is unerringly pointing towards

the accused, this Court should hold the accused persons guilty for hacking and identity theft.


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PRAYER

In the light of the facts stated, charges framed, evidence adduced, arguments advanced and

authorities cited, the first accused (Mr. Manohar Lal) and the second accused (Mr.Rahul Gulati),

the Prosecution herein, most humbly prays before this Hon’ble Court of Sessions, Durg to be

graciously pleased to declare:

1. That A1 and A2 are liable for murder under sec 302 and 302 r/w 109 of BPC, 1860

2. That A1 is liable for forgery under sec 465 of BPC, 1860

3. That A1 and A2 are liable for criminal conspiracy under sec 120B of BPC, 1860

4. That A1 and A2 are liable for hacking and identity theft under sec 66 & 66C of IT Act,

2000

And convict the first and the second accused herein and pass any other order in favour of the

Prosecution that it may deem fit in the ends of equity, justice and good conscience.

For this act of kindness, the Prosecution shall duty bound forever pray.

All of which is humbly submitted,

S/d……………………

(Counsels for Prosecution)

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APPENDIX

INDIAN PENAL CODE, 1860

Sec. 34: Acts done by several persons in furtherance of common intention — When 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.

Sec. 299. Culpable homicide — Whoever causes death by doing an act with the intention of

causing death, or with the intention of causing such bodily injury as is likely to cause death, or

with the knowledge that he is likely by such act to cause death, commits the offence of culpable

homicide.

Illustrations: (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or

with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm,

treads on it, falls in and is killed. A has committed the offence of culpable homicide.

Explanation I — A person who causes bodily injury to another who is labouring under a disorder,

disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have

caused his death.

Explanation 2 — Where death is caused by bodily injury, the person who causes such bodily

injury shall be deemed to have caused the death, although by resorting to proper remedies and

skilful treatment the death might have been prevented.

Sec. 302. Punishment for murder — Whoever commits murder shall be punished with death, or

imprisonment for life, and shall also be liable to fine.

Classification of Offence: Punishment—Death, or imprisonment for life, and fine—Cognizable—

Nonbailable— Triable by Court of Session—Non-compoundable.

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INDIAN EVIDENCE ACT, 1872

Motive, preparation and previous or subsequent conduct.

Sec.8. Motive, preparation and previous or subsequent conduct.-Any fact is relevant which shows

or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to

such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the

conduct of any person an offence against whom is the subject of any proceeding, is relevant, if

such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was

previous or subsequent thereto.

Explanation 1.--The word "conduct" in this section does not include statements, unless those

statements accompany and explain acts other than statements; but this explanation is not to affect

the relevancy of statements under any other section of this Act.

Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his

presence and hearing, which affects such conduct, is relevant.

CODE OF CRIMINAL PROCEDURE, 1973

Sec. 154. Information in cognizable cases - (1) Every information relating to the commission of a

cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to

writing by him or under his direction, and be read over to the informant; and every such

information, whether given in writing or reduced to writing as aforesaid, shall be signed by the

person giving it, and the substance thereof shall be entered in a book to be kept by such officer in

such form as the State Government may prescribe in this behalf

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(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of

cost, to the informant

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to

record the information referred to in sub-section (1) may send the substance of such information, in

writing and by post, to the Superintendent of Police concerned who, if satisfied that such

information discloses the commission of a cognizable offence, shall either investigate the case

himself or direct an investigation to be made by any police officer subordinate to him, in the

manner provided by this Code, and such officer shall have all the powers of an officer in charge of

the police station in relation to that offence

Section 161. Examination of witnesses by police - (1) Any police officer making an investigation

under this Chapter, or any police officer not below such rank as the State Government may, by

general or special order, prescribe in this behalf, acting on the requisition of such officer, may

examine orally any person supposed to be acquainted with the facts and circumstances of the case

(2) Such person shall be bound to answer truly all questions relating to such case put to him by

such officer, other than questions the answers to which would have a tendency to expose him to a

criminal charge or to a penalty or forfeiture

(3) The police officer may reduce into writing any statement made to him in the course of an

examination under this section; and if he does so, he shall make a separate and true record of the

statement of each such person whose statement he records

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