SURANA AND SURANA NATIONAL TRIAL … And Surana National Trial Advocacy Moot Court & Judgment...

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT &

JUDGMENT WRITING COMPETITION - 2015

BEFORE THE COURT OF SESSIONS

AT DURG, XANADU

S.C. NO. 111 OF 2015

STATE OF XANADU

(PROSECUTION) v.

MANOHAR(ACCUSED NO. 1) (DEFENCE)

RAHUL (ACCUSED NO. 2)

FOR OFFENCES CHARGED UNDER:

SEC.302, SEC.465 R/WSEC.34, SEC.120B, SEC.109 OF BHARAT PENAL CODE, 1860

& SEC.66, SEC.66C OF INFORMATION TECHNOLOGY ACT, 2000

UPON SUBMISSIONS TO THE HON’BLE SESSIONS JUDGE

MEMORIAL ON BEHALF OF THE DEFENCE – TAW 2

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 i

MEMORIAL ON BEHALF OF DEFENCE

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... i

LIST OF ABBREVIATIONS .................................................................................................. iv

INDEX OF AUTHORITIES ................................................................................................... vi

[A] Indian Case Laws ......................................................................................................... vi

[B]Statutes ........................................................................................................................ viii

[C] Other Authorities ...................................................................................................... viii

[D]BooksCited .................................................................................................................. viii

[E] International Case ........................................................................................................ ix

[F]Article .............................................................................................................................. ix

[G] Online Article ............................................................................................................... ix

[H] Online Databases……………………………………………………………………...ix

STATEMENT OF JURISDICTION ........................................................................................ x

STATEMENT OF FACTS ...................................................................................................... xi

STATEMENT OF CHARGES ............................................................................................... xii

SUMMARY OF ARGUMENTS ........................................................................................... xiii

ARGUMENTS ADVANCED .................................................................................................... 1

CHARGE I, II & III: THE ACCUSED ARE GUILTY OF CONSPIRACY,

MURDER, AND FORGERY OF THE PRESCRIPTION ............................................... 1

[A] ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY ......................... 1

[A.1] No Agreement or understanding between the accused ........................................ 1

[B] THE ACCUSED IS NOT GUILTY OF COMMITING MURDER UNDER SEC.302

OF BHARAT PENAL CODE, 1860 ................................................................................. 3

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 ii


[B.1] D.W.1 is not liable for committing murder u/s.302 of the Bharat Penal Code,

1860................................................................................................................................ 3

[B.1.A] The death of Karan was not due to the act of D.W.1 .................................... 3

i. Doctrine of causa causans is frustrated. ......................................................... 3

ii. Medical Reports are inconclusive as to cause of death. ................................. 4

[B.1.B] D.W.1 did not act with the intention of committing culpable homicide ....... 5

i. There was no intention on part of D.W.1 to cause death or such bodily

injury as is likely to cause death. ........................................................................... 5

[i.A] D.W.1 acted in good faith, and is thus exempted from conviction u/s.92

of the Bharat Penal Code, 1860 ......................................................................... 5

[i.B] Nevertheless, there was no intention to cause death of the deceased ........ 7

ii. D.W.1 did not act with the knowledge that his act would result in the death

of the deceased ....................................................................................................... 7

[C] THE ACCUSED ARE NOT LIABLE FOR FORGERY OF THE PRESCRIPTION.

............................................................................................................................................ 8

CHARGES IV & V: THE ACCUSED ARE GUILTY OF IDENTITY THEFT AND

HACKING ............................................................................................................................ 9

[A] D.W.2 IS NOT LIABLE FOR ABETTING IDENTITY THEFT U/S 109 OF IPC ... 9

[A.1] There is no abetment by Instigation ................................................................... 10

[A.2] There is no abetment by Conspiracy .................................................................. 10

[A.3] There is no abetment by Intentional Aiding ....................................................... 11

[B] THE ACCUSED HAD NO COMMON INTENTION TO COMMIT THE

OFFENSE OF IDENTITY THEFT ................................................................................. 12

[B.1] There was no common intention ........................................................................ 12

[B.2] Act committed was not in furtherance of the crime ........................................... 13

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 iii


[C] WHETHER ACCUSED HAD COMMITTED FORGERY U/S 465 OF BPC, 1860

AND 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000 .............................. 13

[C.1] The accused did not prepare a false document or electronic record .................. 13

[C.2] There is no evidence of act of fraud or deceit was not conducted by the accused

...................................................................................................................................... 14

[C.2.A] No Concrete evidence was furnished ......................................................... 14

[C.2.B] The expert witness cannot be relied upon ................................................... 15

[C.3] No offense under Section 66C of Information Technology Act, 2005 committed.

...................................................................................................................................... 15

PRAYER FOR RELIEF ......................................................................................................... 16

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 iv


LIST OF ABBREVIATIONS

& And

A.I.R. All India Reporter

A.L.T. Andhra Law Times

All. Allahabad Reporter

B.B.C.J. Bihar Bar Council Journal

B.P.C. Bharat Penal Code

BOM.L.R. Bombay Law Reporter

C.B.I. Central Bureau of Investigation

C.P.J. Consumer Protection Judgements

Cal. Calcutta

Cr.P.C. Code of Criminal Procedure

Cri. Criminal

Cri.L.J. Criminal Law Journal

D.L.T. Delhi Law Times

Ed. Edition

Eds. Editor

G.L.R. Gujrat Law Reveiw

I.L.R. Indian Law Reports

J.C.C. Journal of Criminal Cases

Ker. Kerala

Lah. Lahore

Mad. Madras

Mys. Mysore

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 v


p. Paragraph

P.C. Privy Council

pg. Page

Q.B. Queen’s Bench

r/w Read with

Sec. Section

S.C. Supreme Court

S.C.C. Supreme Court Cases

U.O.I. Union of India

U.P. Uttar Pradesh

U.S.B. Universal Serial Bus

u/s Under Section

v. versus

Vol. Volume

Vol. Volume

W.B. West Bengal

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 vi


INDEX OF AUTHORITIES

[A] INDIAN CASE LAWS

1. Abdul Sayeed v. State of Madhya Pradesh, 2010 (10) SCC 259. .................................. 2

2. Amarsingh v. State, AIR 1951 Raj 42............................................................................ 7

3. Ambani K. v. State, 2005 (13) SCC 422. ..................................................................... 13

4. Anil Kumar v. State, 2014 (1) JCC 256. ........................................................................ 3

5. Arun Kumar v.State AIR 1962 Cal 504 ......................................................................... 4

6. Basappa Bhimappa Doddamani v. State, AIR 1961 Mys 21 (24)................................. 5

7. Biren Mandal v. State, 1996 CriLJ 3455. ................................................................... 11

8. CBI v. K. Naryan Rao, 2012 (3) SCC 1183 ................................................................. 11

9. Central National Bank Ltd . v . United Industrial Bank Ltd; AIR 1954 SC 181. ........ 15

10. Chacko Mathai v. State of Kerala, AIR 1964 Ker 222. ................................................. 4

11. Dani Singh v. State, 2004 (13) SCC 203. .................................................................... 13

12. Daniel Hailey Walcott v. State AIR 1968 Mad 349. ..................................................... 8

13. Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838. ........................................ 4, 15

14. Emperor v. BaiJiba, 1917 (19) Bom LR 823. ............................................................... 7

15. Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28. ........................................ 1

16. Gambhir v. State of Mahrashtra, AIR 1982 SC 1157. ................................................ 11

17. Gulab Singh v. State of Rajasthan, 1984 (2) Cri 869 .................................................. 13

18. H. Mansell Playdell of Simla v. Emperor, AIR 1926 Lah 313(315) ............................. 5

19. Haji Mohammad Ekramul Haq v. The State of West Bengal, AIR 1959 SC 488. ......... 4

20. Hira Lal Hari Lal Bhagwati v. C.B.I. 2003 SCC (Cri) 1121. ........................................ 1

21. Indian Bank v. Satyam Fibres (India) Pvt. Ltd. AIR 1996 SC 2592. ............................ 8

22. Jagrup Singh v. State Of Haryana, AIR 1981 SC 1552. ............................................... 7

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 vii


23. Joseph v. State 1995 CrLJ 502. ................................................................................... 10

24. Juggankhan v. State of Madhya Pradesh, 1965 AIR SC 831. ....................................... 7

25. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 ................................ 2

26. Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godble, AIR 1969 SC 128........ 6

27. Mahaboob Shah v. King Emperor, AIR 1945 PC 118. ............................................... 12

28. Mahmood v. State of UP, AIR 1976 SC 69. ................................................................ 11

29. Manick Chand v. State, 1970 ILR (1) 103. ............................................................ 10, 12

30. Mithu Singh v. State of Punjab,AIR 2001 SC 1929. ............................................... 9, 12

31. Mohar Singh v. DeenDayal Gupta, 1996 VAD (Delhi) 704. ...................................... 14

32. Nara Singh Challan v. Sate of Orrisa, 1997 CriLJ 2204............................................... 3

33. Noor Mohammad Yusuf v. State of Maharashtra, AIR 1971 SC 885. ........................ 10

34. P. Swaminathan v. Lakshmanan, 1992 Cr LJ 990. ........................................................ 6

35. People’s Patriotic Front v. Birla, 1984 CrLJ 545. ...................................................... 13

36. R . M . K . R . M . Somasundaram Chetty v. M . R . M . V . L . Subramanian Chetty,

AIR 1926 PC 136. ........................................................................................................ 15

37. Ram Swaroop v. State, AIR 2004 SC 2943. ................................................................ 10

38. RanjanaYaki v. State 2004 (12) SCC 521. ................................................................... 10

39. Ravirajan v. State of T.N., 1998 Cri L.J 3086. .......................................................... 2, 7

40. Re Rasiyat Ali @ Babu Mishra, 1881 ILR (7) 352. ..................................................... 14

41. Sanju v. State, 2002 (5) SCC 371. ............................................................................... 10

42. Shiv Prasad ChunniLal Jain v. State of Maharashtra, AIR 1965 SC 264. ................. 12

43. Sohan Raj v. State, 2008 (11) SCC 215. ........................................................................ 9

44. Sunny Kapoor v. State, 2006 (10) SCC 182. ............................................................... 13

45. Suresh v. State, 2001 (3) SCC 673. ............................................................................. 13

46. Sushil Ansal v. State, 2014 (6) SCC 173. ...................................................................... 3

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 viii


47. The State of Maharashtra v. Rajkumar Kunda Swami, 2002 (104) Bom LR 567. ...... 15

48. Vijay Kumar v. State, 2014 (4) JCC 2494. .................................................................... 2

49. Vijaybai v. State of Maharashtra, 1995 Supp (2) SCC 734. ......................................... 3

[B] STATUTES

1. Schedule 3 of Section 1, Information Technology Act, 2000 (Act 21 of 2000). ......... 14

2. Section 10, Indian Evidence Act (Act 1 of 1872) .......................................................... 2

3. Section 3(2), Information Technology Act, 2000 (Act 21 of 2000). ........................... 14

4. Section 3, Indian Evidence Act, 1872 (Act 1 of 1872). ............................................... 14

5. Section 43, Information Technology Act, 2000 (Act 21 of 2000) ............................... 12

6. Section 52, Indian Penal Code, 1860 (Act 45 of 1860). ................................................ 6

7. Section 62, Indian Evidence Act, 1872 (Act 1 of 1872). ............................................. 14

8. Section 92, Indian Penal Code (Act 45 of 1860). .......................................................... 5

[C] OTHERAUTHORITIES

1. BLACK’S LAW DICTIONARY 248 (7th ed., 2004). ................................................... 3

[D]BOOKSCITED

1. B.R. Sharma , FORENSIC SCIENCE IN CRIMINAL INVESTIGATION AND

TRIAL (4th ed., 2012) .................................................................................................. 15

2. D. L. Kasper, HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 60 (19th ed.,

2015). ............................................................................................................................. 8

3. Huttmann, G.H., A PENAL CODE PREPARED BY THE INDIAN LAW

COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR

GENERAL OF INDIA IN COUNCIL 18 (1837) .......................................................... 5

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 ix


4. Manisha Karia & Tejas Karia, ELECTRONIC EVIDENCE, DISCLOSURE,

DISCOVERY AND ADMISSABILITY 315 (1st ed., 2007). ...................................... 14

5. Miles, S., DICTIONARY OF MEDICAL ETHICS 155-156 (2nd ed., 1981). ............... 6

6. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE 140 (33rd ed., 2011). .................. 5

7. Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY525 (6th ed., 2009).

.................................................................................................................................... 6, 8

[E] INTERNATIONAL CASE

1. Karen-Jutzi Johnson v. United States of America, 263 F.3d 753. ................................. 3

[F]ARTICLE

1. Malcolm Thorburn, Justifications, Powers, and Authority, 117 Yale Law Journal 1070

(2008). ............................................................................................................................ 6

[G] ONLINE ARTICLE

1. RBI REPORT ON INTERNET BANKING (PART 2 OF 2), 22/01/2000,

https://www.rbi.org.in/SCRIPTS/PublicationReportDetails.aspx?UrlPage=&ID=244

(last visited 15th August, 2015). ................................................................................... 12

[H] ONLINE DATABASES

1. Westlaw (www.westlawindia.com)

2. Manupatra (www.manupatra.com)

3. SCC Online (www.scconline.in)

4. JSTOR (www.jstor.org)

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 x


STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Sec.177 r/w Sec.184 and

Sec.209 of the Code of Criminal Procedure, 1973.

Sec.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.’

Sec.184: Place of trial for offences triable together. ‘Where-

(a) the offences committed by any person are such that he may be charged

with and tried at one trial for, each such offence by virtue of the provisions of

section 219, section 220 or section 221, or

(b) the offence of offences committed by several persons are such that they

may be charged with and tried together by virtue of the provisions of section

223, the offences may be inquired into or tried by any Court competent to

inquire into or try any of the offences.’

r/w Sec.209:

Sec.209: Commitment of case to Court of Session when offence is triable

exclusively by it- When in a case instituted on a police report or otherwise, the

accused appears or is brought before the Magistrate and it appears to the Magistrate

that the offence is triable exclusively by the Court of Session, he shall-

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

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

to custody during, and until the conclusion of, the trial;

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

any, which are to be produced in evidence;

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

Session.’

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 xi


STATEMENT OF FACTS

¶ 1. Manohar (hereinafter, ‘Mano’)became an orphan at the age of 10. Since then his uncle

Karan brought him up and financed his education including payment of his college

fees.

¶ 2. Karan’s health started deteriorating considerably. He suffered from various ailments,

including high blood pressure, obesity, diabetes and alcohol addiction.

¶ 3. Mano was always indebted to his uncle and for that matter he extremely respected his

uncle and took care of him when no one else did. Mano and Rahul were good friends.

¶ 4. Mano always had his uncle’s express authority to transfer money online from his bank

account whenever he required.

¶ 5. It is suspected that even on the morning of 3rd August Karan had drank alcohol, and

wanted to go for work on the same day despite his condition, both of which Mano

advised him against.

¶ 6. On the same day, Karan complained of chest pain. Mano sent his cousin Raghav to

fetch Angispan.Following the administration of Angispan, Karan recovered fully for

half an hour.

¶ 7. Subsequently, Karan developed fits and seizure, and collapsed. Mano and Raghav

tried to revive him but failed.

¶ 8. Following this, an F.I.R was filed by Devika and Mano and Rahul were later arrested

for the murder of Karan.

¶ 9. In the investigation under Section 173, the medicine Oxycontin, which is a painkiller,

and several half-empty bottles of alcohol were found.

¶ 10. On forwarding of the police report to the Magistrate’s Court, the court took

cognizance and committed the case to the Sessions Court of Durg.

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 xii


STATEMENT OF CHARGES

CHARGES I, II & III

ACCUSED 1 AND ACCUSED 2 HAVE BEEN CHARGED WITH CRIMINAL CONSPIRACY, MURDER, AND

FORGERY WITH COMMON INTENTION UNDER SEC.120B, SEC.302, AND SEC.465 READ WITH SEC.34

OF THE BHARAT PENAL CODE, 1860

CHARGES IV & V

ACCUSED 1AND ACCUSED 2 HAVE BEEN CHARGED WITH HACKING AND IDENTITY THEFT UNDER

SECTION.66 AND SEC.66C OF THE INFORMATION TECHNOLOGY ACT, 2005 AND RAHUL GULATI HAS

BEEN CHARGED WITH ABETMENT UNDER SEC.109 OF THE BHARAT PENAL CODE, 1860

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 xiii


SUMMARY OF ARGUMENTS

CHARGE I, II & III

WHETHER MANOHAR LAL AND RAHUL ARE GUILTY OF CONSPIRACY OF MURDER AND MURDER

The accused cannot be held liable under section120Bof the Bharat Penal Code as there was

no conspiracy since there existed no agreement between the parties.Additionally, the accused

cannot be held liable under Section 302 as there was no intention to cause death since the

accused was acting in good faith, and it cannot be proved beyond reasonable doubt that the

cause of death was not on natural account.Furthermore, the accused cannot be held liable

for forgery of the prescription, under Section 465 since there was no intention to cause

injury. Hence cannot be held liable for the acts of Conspiracy, Murder and forgery.

CHARGE IV & V:

WHETHER RAHUL AND MANOHAR ARE GUILTY OF IDENTITY THEFT

Rahul and Manohar are not guilty of offences under Section 34 r/w Section 465 of Indian

Penal Code and Section 66 and 66C of Information Technology Act, 2000 because there was

no intention to defraud and there was no preparation of a false record, or hacking.

Furthermore, Rahul would not be liable for instigating and abetting the crime alleged as

there is no abetment either by conspiracy, instigation or intentional aiding, and they cannot

be said to have common intention to defraud or to commit identity theft because no act was

committed in furtherance of the alleged crime.

Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 1


ARGUMENTS ADVANCED

CHARGE I, II & III:THE ACCUSED ARE GUILTY OF CONSPIRACY, MURDER,

AND FORGERY OF THE PRESCRIPTION

It is humbly contended before this Hon’ble Court that accused Manohar Lal and Rahul Gulati

(herein after individually to be referred to as ‘A1/ D.W.1’ and ‘A2/ D.W.2’ respectively) are

not guilty of the offences under Sec.302 and Sec.120B of the Bharat Penal Code, 1860

(hereinafter referred as the ‘BPC’). In the instant matter there was no conspiracy to commit

the murder of Mr. Karan, (herein after to be referred as ‘Deceased’) [A] D.W.1 is not liable

for murder[B], and for forgery of the prescription [C]

[A] ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY

Criminal conspiracy as defined under Sec.120A consists of an agreement between two or

more persons to commit an illegal act or a legal act by illegal means.1The elements of a

criminal conspiracy are: Agreement between two or more persons by whom the agreement is

effected, and 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.2

[A.1] No Agreement or understanding between the accused

The provisions of Sec.120A and 120B IPC states that the offence of conspiracy lies not in

doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting

to do them, nor in inciting others to do them, but in the forming of the scheme or agreement

between the parties is essential.3

1Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28.; HALSBURY’S LAWS OF ENGLAND 44(Lord Hailshameds., 4thed 1987).

2Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28.

3Hira Lal Hari Lal Bhagwativ. C.B.I. 2003 SCC (Cri) 1121.



Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence

of the same thus relying on evidence of acts of various parties to infer that they were done in

reference to their common intention.4 For an offence under Sec.120B5 IPC the intention must

proceed to an agreement.6

In the present matter, there was no intention to commit Murder. None of the witness

statement or events of the case depicts that the accused had agreed over the intention to

commit the Murder of the deceased. It can also be corroborated from D.W.2’s statement “he

thought highly of his uncle and always had the utmost respect for him. He would never even

back talk or rebel against his uncle.” That there were good relation amongst the deceased and

D.W.1 and D.W.2 shared a good bond of friendship with D.W.1 and only knew the deceased

through D.W.1. Even at the time of occurrence of the event in the morning of the 4th August,

2014 D.W.1 looking the sufferings of the deceased had acted in good faith.

Thus it is also clear that at the time of occurrence of the event D.W.2 had no time to meet

D.W.1 or discuss the common design with D.W.1 thus showing no formation of the

agreement, and in the absence of common design the offence of Criminal Conspiracy cannot

take place. The only time questions as to agreement could be derived was when Rahul

mocked about how great it would be if Mano’s uncle would have been gone on a ‘Long

Journey’ but it is well established law that the remarks purported to have been made in

mockery cannot be said to reflect the intention/motive to commit a crime.7

4Section 10,Indian Evidence Act (Act 1 of 1872); Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883.

5Abdul Sayeed v. State of Madhya Pradesh, 2010(10) SCC 259.

6Vijay Kumar v. State, 2014 (4) JCC 2494.

7Ravirajanv. State of T.N., 1998 Cri L.J 3086.



Thus it is clear from the materials available on record that there was no common design

between all these accused to do any illegal act. Therefore, it is humbly submitted that no

conspiracy on part of the accused can be proved beyond reasonable doubt.

[B] THE ACCUSED IS NOT GUILTY OF COMMITING MURDER UNDER SEC.302

OF BHARAT PENAL CODE, 1860

[B.1] D.W.1 is not liable for committing murder u/s.302 of the Bharat Penal Code, 1860

Murder as defined under Sec.300 of the Bharat Penal Code, is specie of culpable homicide,

which is given in Sec.299 of the Bharat Penal Code.8 Therefore, it is humbly contended that

the death of the deceased was not due to the act of D.W.1 [B.1.A] and that D.W.1 did not

have the intention to commit culpable homicide[B.1.B] and hence impliedly, they cannot be

convicted for murder.

[B.1.A]THE DEATH OF KARAN WAS NOT DUE TO THE ACT OF D.W.1

i. Doctrine of causa causans is frustrated.

It is humbly submitted before the court that situations where the concurrent contributory

causes exist which make it impossible to say that the act in question was a substantial cause,9

and where the connection between the act and the death is obscure,10 belie the principle of

causa causans.11 This doctrine states that for an act to be considered the cause of the death of

a victim it must be the effective cause of the death,12 and this is necessary to prove the guilt

of an accused for the offence of culpable homicide.13

8Nara Singh Challan v. Sate of Orrisa, 1997 CriLJ 2204.

9Karen-Jutzi Johnson v. United States of America, 263 F.3d 753.

10Vijaybaiv. State of Maharashtra, 1995 Supp (2) SCC 734.

11 BLACK’S LAW DICTIONARY 248 (7th ed., 2004).

12SushilAnsalv. State, 2014 (6) SCC 173.

13Anil Kumar v. State, 2014 (1) JCC 256.



In the instant case, since there was Oxycontin found during the investigation,14it is plausible

to assume that the death of the deceased was due to overdose of the same, which in a liver-

cirrhotic patient is known to cause stroke.15 This makes for a concurrent contributory cause

for the death of the deceased, while the connection between the act and the death of the

deceased is further obscured by the fact that there was an interval of half an hour between the

injection of Angispan and the seizure, therefore the act of the accused does not form the last

link in the chain of causation.

ii. Medical Reports are inconclusive as to cause of death.

It is humbly submitted before this Hon’ble Court that medical evidence is not decisive

because it is primarily evidence of opinion and not of fact.16 An expert opinion without

reasons is unreliable,17 and when an expert opinion is rendered incorrect, the Court will be

well within its jurisdiction to discard the expert opinion.18

In the instant case, the post-mortem report assigns a cause of death without a reason,19 and is

hence unreliable. The forensic report assigns the cause of death to be due to air embolism,20

which is also improbable and incorrect, since, none of the medicines that were administered

to the deceased required the use of a syringe, and due to this there was no possibility of

D.W.1 introducing a fatal amount of air while Raghav was away.

14Page 16, Annexure 6 - Report of Investigation Officer u/s 173CrPC

15Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY 457 (6th ed., 2009).

16Arun Kumar v.StateAIR 1962 Cal 504; Chacko Mathai v. State of Kerala, AIR 1964 Ker 222.

17Haji Mohammad EkramulHaqv.The State of West Bengal, AIR 1959 SC 488.

18Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838.

19Page 10, Annexure 3 – Post Mortem Report

20Page 11, Annexure 4 – Forensic Report



Furthermore, it is also contended that in cases of contradiction between the evidences of

medical opinion, the court is not to discredit other evidence on the basis of medical opinion.21

In the instant matter, the pathologist in his report attributed the cause of death to air embolism

and the post-mortem examiner concluded that it was due to drug over-dose or cross-reaction,

hence, the two medical opinions contradict each other.

Therefore, in absence of any circumstantial or positive evidence, the death of the deceased

cannot be said to have been caused by an act of D.W.1.

[B.1.B] D.W.1 DID NOT ACT WITH THE INTENTION OF COMMITTING CULPABLE HOMICIDE

There cannot be said to have existed an intention to commit culpable homicide because none

of the requisites in order to convict a person under Sec.299 are present, namely, he did not act

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

[i] or with the knowledge that he is likely to cause death by such act [ii].

i. There was no intention on part of D.W.1 to cause death or such bodily injury as is likely

to cause death.

[i.A] D.W.1 acted in good faith, and is thus exempted from conviction u/s.92 of the

Bharat Penal Code, 1860

It is humbly presented before the court that acts done in good faith, albeit without the consent

of another, are not offences by virtue of Sec.92 of the Bharat Penal Code, 1860.22 In cases

where a person is unable to give consent, and there exists a state of emergency, a relationship

of temporary guardianship arises,23 and a person may act in good faith to help another in such

21H. Mansell Playdell of Simla v. Emperor, AIR 1926 Lah 313(315); BasappaBhimappaDoddamaniv. State,

AIR 1961 Mys 21 (24).

22Section 92, Indian Penal Code (Act 45 of 1860).

23Huttmann, G.H., A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 18 (1837); Ratanlal&Dhirajlal, THE INDIAN PENAL CODE 140 (33rd ed., 2011).



occurrence.24 Sec.52 of the Bharat Penal Code25 states that good faith is said to be exercised

when the act is done with due care and attention. The discretion of such a person, to choose

the method of treatment, is relatively wider in cases of emergency.26It is sufficient to

establish that in preponderance of possibilities, due care and attention is made out, in order to

confirm the good faith of the person so acting.27

‘Medical emergency’ has been defined as a sudden, unforeseen injury, illness or complication

that demands immediate care to save life or prevent gross disability, and the responsibility of

a person who attends to such a situation is limited to his competence.28The present case was a

medical emergency, since it was sudden and unforeseen, as it occurred without any warning,

preceding which the deceased was reportedly feeling fine.29 Therefore D.W.1 was obliged to

exercise appropriate skills that he possessed.30 He did so by acting immediately to procure a

medicine to cure the symptoms of the deceased,31 which he had seen treated before in his

training,32 and therefore exercised due care and attention in administering the correct

medicine in the situation of emergency.

24Malcolm Thorburn, Justifications, Powers, and Authority, 117 Yale Law Journal 1070 (2008).

25Section 52, Indian Penal Code, 1860 (Act 45 of 1860).

26LaxmanBalkrishna Joshi (Dr.) v. Dr.TrimbakBapuGodble, AIR 1969 SC 128.

27P. Swaminathanv. Lakshmanan, 1992 Cr LJ 990.

28Miles, S., DICTIONARY OF MEDICAL ETHICS 155-156 (2nd ed., 1981).

29Page 4, Factual Matrix , p 21

30Supra, note 32.

31Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY525 (6th ed., 2009).

32Page 4, Factual Matrix, p 21,



[i.B] Nevertheless, there was no intention to cause death of the deceased

Remarks purported to have been made in mockery cannot be said to reflect the

intention/motive to commit a crime.33 Furthermore, the intention to commit a culpable

homicide cannot be inferred when there is no previous enmity between the accused and the

deceased.34 The nature of the weapon alleged to be used also determines the intention to

commit culpable homicide.35

In the present case, the only time when D.W.1 spoke of harm caused to the deceased was

when the remark was made in mockery36 and it is also evident that there was no enmity

between the accused and the deceased,37 therefore intention to commit culpable homicide

cannot be said to have existed. The weapon alleged to be used was a syringe, which is not in

its ordinary course of use, used to cause death, hence intention cannot be said to be present.

ii. D.W.1 did not act with the knowledge that his act would result in the death of the

deceased

In the case of Juggan khan v. State of Madhya Pradesh,38 it was decided that where a

medicinal substance results in the death of the person it is administered to, cannot establish

that the accused acted with knowledge that he was likely by such an act to cause the death of

the deceased. Furthermore, in cases where there are abnormal conditions unknown to the

person which results in the death of the person, culpable homicide is not said to be caused.39

33Ravirajanv. State of T.N., 1998 Cri L.J 3086.

34Amarsinghv. State, AIR 1951 Raj 42.

35Jagrup Singh v. State Of Haryana, AIR 1981 SC 1552.

36 Page 3, Factual Matrix, p 16

37Page 2, 3 and 4,Factual Matrix, p 8, 17, 19, 21,

38Juggankhanv. State of Madhya Pradesh, 1965 AIR SC 831.

39Emperor v. BaiJiba, 1917 (19) Bom LR 823.



In the instant matter, the deceased showed the symptoms of severe heart problems, which

includes severe chest pain.40 The substance that has allegedly resulted in the death of the

deceased is administered as a medicine to cure the symptoms that the deceased was

showing.41 Thus, D.W.1 acted correctly by administering a medicine that any other doctor

would have given, which has been reaffirmed in Dr. Choudhary’s statement.42 It is also

pertinent to note that D.W.1 did not have knowledge of the medication taken by the

deceased,43 and hence D.W.1 cannot be said to have acted with the knowledge of any cross

reaction. Furthermore, since the death was due to an unknown abnormality in the deceased’s

system, namely – that he had a liver cirrhosis44 which accentuated the effect of the drug

administered to him, D.W.1 cannot be said to have the knowledge to commit culpable

homicide.

[C] THE ACCUSED ARE NOT LIABLE FOR FORGERY OF THE PRESCRIPTION.

There are three elements to be satisfied in order to prove the offence as mentioned below: (1)

The document or electronic record or part of it must be false; (2) It must have been made

dishonestly or fraudulently; and (3) It must have been made with intent to cause damage or

injury to the public or to any person.45 Fraud has to be proved as a fact by direct evidence or

by inferences by the proven fact.46

The factual matrix suggests that, D.W.1 after getting frustrated by fruitless attempts to

contact Dr. Choudhary found himself in a desperate state and then wrote the name of the

40D. L. Kasper, HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 60 (19th ed., 2015).

41Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY525 (6th ed., 2009).

42Page 15 Annexure 5 - Dr. Choudhary’s statement,

43 Page 4, Factual Matrix, p 19

44 Page 11, Annexure – 4 – Forensic Report

45Daniel Hailey Walcott v. State AIR 1968 Mad 349.

46Indian Bank v. Satyam Fibres (India) Pvt. Ltd. AIR 1996 SC 2592.



medicine on the prescription in a hurry. The intent to cause damage is the major criteria to

constitute an offence u/s 463 which can’t be satisfied as the intention of the accused was to

save the life of the deceased.47 Since the medicine Angispan is a non-prescription drug, it is

immaterial that D.W.1 wrote the name of the medicine on the prescription.

There is no common intention to commit the crime of forgery

The offence has been clubbed with section 34 of the code and the basic ingredients are as

such: (1) the criminal acts should have been done by more than one person. (2) Every

individual act should have been in furtherance of the common intention of all such persons.48

Considering the facts, it could not be derived that D.W.2 had even the minimal knowledge of

the prescription saga. Acting of the co accused in furtherance of the crime is necessary, but in

the instant case the co accused did not have knowledge of any occurrence, and thus, did not

act in common intent.

CHARGES IV & V: THE ACCUSED ARE GUILTY OF IDENTITY THEFT AND

HACKING

It is humbly placed before the Hon’ble Court that D.W.1 and D.W.2 are not guilty of offences

under Sec34 r/w Sec.465 of IPC, 1860 and Sec.66 and Sec.66C of Information Technology

Act, 2000. D.W.2 would not be liable for instigating and abetting the crime caused [A] and

they had no common intention [B] to defraud or to commit identity theft [C]

[A] D.W.2 IS NOT LIABLE FOR ABETTING IDENTITY THEFT U/S 109 OF IPC

It is humbly placed before the Hon’ble Court that a person is said to abetting a crime when he

instigates [A.1], conspires [A.2] and intentionally aids [A.3] the commission of the crime.49

47Daniel Hailey Walcott v. State AIR 1968 Mad 349.

48Mithu Singh v. State of Punjab,AIR 2001 SC 1929.

49Sohan Raj v. State, 2008 (11) SCC 215.



Moreover, in RanjanaYaki v. State50 it was ruled that a person can be held liable u/s 109 of

IPC, 1860 if an act is committed in consequence of the abetment.51 However, in this case

neither did D.W.2 abet the commission of crime nor was any act committed which would

establish the crime of abetment.

[A.1] There is no abetment by Instigation

Instigating means inciting or urging someone to do some drastic or inadvisable action or to

stimulate the same.52 D.W.1 and D.W.2 just shared common interest in technology and often

experimented with new things.53 There was summarily no instigation to cause any drastic or

inadvisable act.

D.W.2 was made to admit that he had taught D.W.1 to decrypt the deceased’s password for

fun by tracking the keystrokes by the police authorities.54 The statement recorded under

Sec.161 of Cr.P.C., 1973 cannot be considered as evidence.55 In actuality the two incidents of

Rahul hacking in Karan’s account and Mano transferring funds are not at all related.

[A.2] There is no abetment by Conspiracy

Conspiracy under Section 109 of the Bharat Penal Code can be proved by circumstantial

evidence but a step towards the commission of the crime needs to be taken.56 In the case of

Manick Chand v. State57 it was held that on a charge of forgery, when there is uncertainty in

the evidence of prosecution, it is to the benefit of the defense and cannot be resolved by the

50RanjanaYakiv. State 2004 (12) SCC 521.

51Joseph v. State 1995 CrLJ 502.

52Sanjuv. State, 2002 (5) SCC 371.

53Page 2, Factual Matrix, p 6

54Page 18, Annexure 6 - Report of Investigation Officer u/s 173CrPC

55Ram Swaroopv. State, AIR 2004 SC 2943.

56Noor Mohammad Yusuf v. State of Maharashtra, AIR 1971 SC 885.

57Manick Chand v. State, 1970 ILR (1) 103.



Court. Inferences regarding the guilt can be drawn only when circumstances are capable of

reasonable explanation and cannot be established on mere suspicion, surmises or interest.58

In the ruling of Mahmood v. State of UP59 criteria to establish circumstantial evidence as

proof was laid down as: (1) The circumstances must have fully been established by

unimpeachable evidence (2) the circumstances are of determinative tendency and, (3) the

circumstances, are incapable of explanation on any reasonable hypothesis except that of guilt.

Applying the above rule to our case we find that the witness statement i.e. Raghav’s

statement of finding D.W.1 and D.W.2 using the desktop along with the laptop60 and finding

of the USB drive does not create a chain of events.61The circumstantial evidence in order to

sustain conviction must be complete and incapable of explanation of any other hypothesis

than that of the guilt of the accused.62 In this inferences cannot be drawn from the

circumstances leading to the guilt of the parties. The circumstantial evidence should not only

be consistent with the guilt of the accused but should be inconsistent with the innocence.63

In this case there was a break in the chain of events thus proper evidence of guilt cannot be

established.

[A.3] There is no abetment by Intentional Aiding

It is humbly contended that no act was done in furtherance of crime. D.W.2 would connect

his pen drive to the desktop and transfer funds which he did not do with the purpose to

embezzle funds.64 There was no involvement of D.W.1 in the act of hacking and transferring

58CBI v. K. NaryanRao, 2012 (3) SCC 1183.

59Mahmoodv. State of UP, AIR 1976 SC 69.

60 Page 14, Annexure 6 - Report of Investigation Officer u/s 173CrPC

61Page 20, Annexure 7 – Expert Witness

62Gambhirv. State of Mahrashtra, AIR 1982 SC 1157.

63Biren Mandal v.State, 1996 CriLJ 3455.




funds nor did D.W.2 aid him in any act of theft. Raghav merely had suspicion that the two

were up to something65 and that cannot be relied upon.66

[B] THE ACCUSED HAD NO COMMON INTENTION TO COMMIT THE

OFFENSE OF IDENTITY THEFT

It is humbly placed before the Hon’ble Court that D.W.1 and D.W.2 are not collectively

liable as they had no common intention to commit a fraud and embezzle funds. To prove

common intention two elements must be necessarily proved i.e. there was no common

intention [B.1] and no offence was committed in furtherance of the crime. [B.2] 67

[B.1] There was no common intention

Common intention implies that there should be a prior concert or prior meeting of minds68

and such has to happen prior to the commission of the act of crime.69This can be established

circumstantially.70 The acts committed are two different and separate acts.

Arguendo, the fact that D.W.2 did transfer an extra amount cannot be said to be hacking but

trespassing which is a separate offense altogether.71Furthermore, even if it is assumed that

D.W.1 and D.W.2 acted with a similar intention, common intention has been distinguished

and understood differently from similar intention.72

65Page 14, Annexure 6- Statements Recorded u/s 161 of CrPC 1973

66Manick Chand v. State, 1970 ILR (1) 103.

67Shiv Prasad ChunniLal Jain v. State of Maharashtra, AIR 1965 SC 264.

68PandurangTukiav. State of Hyderbad, AIR 1955 SC 216.

69ShankarlalKacharabai and Others v. State of Gujarat, AIR 1965 SC 1260; Ram Tahalv. State of Uttar Pradesh, AIR1972 SC 254.

70Mahaboob Shah v. King Emperor, AIR 1945 PC 118.

71Sec.43, Information Technology Act, 2000 (Act 21 of 2000); RBI REPORT ON INTERNET BANKING (PART 2 OF 2), 22/01/2000,https://www.rbi.org.in/SCRIPTS/PublicationReportDetails.aspx?UrlPage=&ID=244 (last visited 15th August, 2015).

72Mithu Singh v. State of Punjab,AIR 2001 SC 1929.



[B.2] Act committed was not in furtherance of the crime

To attract the commission of mischief under Section 34 participation is necessary in the

commission of the offense.73 the term “furtherance” has been interpreted to mean an act done

in advancement or promotion of crime.74 Section 34 denotes a series of acts as a single act

and does not include independent criminal actions.75

The two acts done by the parties i.e. D.W.1 hacking into the deceased’s computer (which has

been disproved)76 and Mano transferring funds by consent are two different acts and no act

was done in advancement or promotion of the common intention. For two acts to be

commonly intended they also have to be conjointly committed which did not happen.77

[C] WHETHER ACCUSED HAD COMMITTED FORGERY U/S 465 OF BPC, 1860

AND 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000

For conviction under Section 465 of the Bharat Penal Code, accused should have prepared a

false document or electronic record78[C.1] and there should be evidence of act of fraud or

deceit was conducted by the accused [C.2]. Additionally, no offence under Section 66C of

Information Technology Act, 2000 was committed. [C.3]

[C.1] The accused did not prepare a false document or electronic record

In Gulab Singh v. State of Rajasthan79 it was ruled that one of the essential ingredients is that

the accused must make or prepare a false document or electronic record. Making of false

73Sunny Kapoor v. State, 2006 (10) SCC 182.

74ShankarlalKacharabai and Others v. State of Gujarat, AIR 1965 SC 1260;.Dani Singh v. State, 2004 (13) SCC 203.

75Suresh v. State, 2001 (3) SCC 673.

76Refer Contention 2.3.2

77Ambani K. v. State, 2005 (13) SCC 422.

78People’s Patriotic Front v. Birla, 1984 CrLJ 545.

79Gulab Singh v. State of Rajasthan, 1984 (2) Cri 869.



document means sealing and signing it as a document knowing that the person making it has

no authority to do so.80

D.W.1 did not make or forge any document as he had his uncle’s express authority to do so.81

D.W.2 also did not commit forgery as bank account online is not a document and password is

not a signature82 since the definition for method of authentication of electronic records does

not take into account other means of authenticating electronic records.83 The definition of

banker’s book does not include online storage of banking data.84 Thus if there is no document

fraudulently and dishonestly prepared no offence of forgery gets disproved.

[C.2] There is no evidence of act of fraud or deceit was not conducted by the accused

[C.2.A] NO CONCRETE EVIDENCE WAS FURNISHED

For a document to be considered as primary evidence, it should be produced for inspection of

the court,85 and it is considered as best evidence.86 Document means any matter expressed or

described upon any substance by means of letter, figures or marks or by more than one of

those means used.87 In the instant matter, no documentary evidence of bank statements was

relied upon, and hence, there is no primary evidence.

80Re Rasiyat Ali @ Babu Mishra, 1881 ILR (7) 352.


82Section 3(2), Information Technology Act, 2000 (Act 21 of 2000).

83Manisha Karia&TejasKaria, ELECTRONIC EVIDENCE, DISCLOSURE, DISCOVERY AND ADMISSABILITY315 (1st ed., 2007)

84 Schedule 3 of Section 1, Information Technology Act, 2000 (Act 21 of 2000).

85Section 62, Indian Evidence Act, 1872 (Act 1 of 1872).

86Mohar Singh v. DeenDayal Gupta, 1996 VAD (Delhi) 704.

87Section 3, Indian Evidence Act, 1872 (Act 1 of 1872).



[C.2.B] THE EXPERT WITNESS CANNOT BE RELIED UPON

Expert evidence even if duly proved is not binding on the court.88 If the report of the expert is

inadequate in any sense, his evidence is of no use.89

In this case the expert evidence was discrepant, as he had stated that the computer was logged

in at the time when everyone was busy attending to ailing Karan.90

[C.3] No offense under Section 66C of Information Technology Act, 2005 committed.

Both Section 66 and 66C require the element of dishonesty and fraud.91

In this case innocence of D.W.2 has been proved in Contention 2.3.2. As far as D.W.1 is

concerned he too did not act either dishonestly or fraudulently because the money was taken

by consent. D.W.1 had express authority to transfer funds from Karan’s account92 and even

on that day D.W.1 was asked to transfer funds the amount of which was not mentioned.93

Funds transferred with express consent cannot be termed as fraud.94 Thus no fraud or deceit

was committed by D.W.1 as it was done consensually.95

88Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838.

89 B.R. Sharma , FORENSIC SCIENCE IN CRIMINAL INVESTIGATION AND TRIAL (4th ed., 2012);Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838.

90Page 20, Annexure 7 - Expert Evidence

91The State of Maharashtra v. RajkumarKunda Swami, 2002 (104) BomLR567.

92Pg 3, Factual Matrix, p 16

93Pg 4 Factual Matrix, p 20

94R .M .K .R .M .SomasundaramChetty v.M .R .M .V .L . Subramanian Chetty, AIR1926PC136.

95Central National Bank Ltd .v .United Industrial Bank Ltd; AIR1954SC181.



PRAYER FOR RELIEF

Wherefore, in light of facts stated, issues raised, authorities cited and arguments advanced,

may this Hon’ble Court be pleased to:

1. Acquit Manohar Lal and Rahul Gulatifor the charges framed against them.

AND/ OR

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

All of which is most humbly and respectfully submitted.

Place: Durg, Xanadu

Date: __ September, 2015

S/d ____________

(COUNSEL ON BEHALFOF THE DEFENCE)

SURANA AND SURANA NATIONAL TRIAL … And Surana National Trial Advocacy Moot Court & Judgment...

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