A

REMEMBERINGG S.P. SATHE

10TH NATIONAL MOOT COURT COMPETITION 2016

IN THE HON’BLE HIGH COURT OF JUDICATURE

AT

BOMBAY

In the matter between

STATE OF MAHARASHTRA APPELLANT

v.

MRS. NEHA MITTAL

MR. PANKAJ MITTAL

MR. ALOKNATH KALE RESPONDENTS

(Crl. Appeal No. 1217/2016)

MEMORIAL for RESPONDENTS

- Mrs. Neha Mittal & Ors. -

MEMORIAL for RESPONDENTS TABLE OF CONTENTS

TABLE OF CONTENTS

Table of contents ..................................................................................................................I

list of abbreviations ...........................................................................................................III

INDEX OF AUTHORITIES .............................................................................................. V

STATEMENT OF JURISDICTION ................................................................................. X

SUMMARY OF FACTS ................................................................................................... XI

A. The Background .................................................................................................. XI

B. The Money Transaction ....................................................................................... XI

C. The Final ultimatum and the purported insult ....................................................... XI

D. The Crime............................................................................................................ XI

STATEMENT OF ISSUES ............................................................................................ XIII

SUMMARY OF ARGUMENTS .................................................................................... XIV

A. The Honorable Court Cannot Be Turned Into A Mere Fact Finding Enquiry ..... XIV

B. The Appeal should be dismissed in limine because it lacks a valid question of law.
XIV

A. Witness statements are not reliable .................................................................... XV

1. Jai Singhania‟s statement is weak evidence .................................................... XV

2. Prakash Yadav‟s statement does not complete the chain of events .................. XV

B. Documentary evidence are not conclusive to attribute criminal liability ............ XVI

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

I. THE APPEAL FILED BEFORE THIS HONORABLE IS NOT MAINTAINABLE........... 1

A. The Honorable Court Cannot Be Turned Into A Mere Fact Finding Enquiry .......... 1

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS TABLE OF CONTENTS

B. The Appeal should be dismissed in limine because it lacks a valid question of law. 1

II. THAT THERE WAS NO COMMON INTENT OR CRIMINAL CONSPIRACY ON PART OF THE
ACCUSED. .......................................................................................................................... 2

III. THAT MRS. NEHA MITTAL, MR. PANKAJ MITTAL AND ALOKNATH KALE HAVE

NOT BE HELD GUILTY OF THE MURDER OF KAMINI KARIA. ..................................... 4

A. Witness statements are not reliable ........................................................................ 5

1. Alok Nath Kale‟s confession is inadmissible ...................................................... 5

a. Confession has been procured by inducement, threat or promise .................... 5

b. Arguendo, he is himself a co-accused and hence an interested witness. .......... 7

2. Jai Singhania‟s statement is weak evidence ........................................................ 8

3. Prakash Yadav‟s statement does not complete the chain of events ...................... 9

B. Documentary evidence are not conclusive to attribute criminal liability ................. 9

a. Post Mortem Report ..................................................................................... 10

b. CCTV footage at toll naka ............................................................................ 11

c. DNA analysis report..................................................................................... 11

prayer ............................................................................................................................. XVI

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

AIR All India Reporter

All ER All England Reporter

Art. Article

BOM Bombay

CJ. Chief Justice

Co. Company

Corpn. Corporation

Dist. District

Dy. Deputy

Edn. Edition

Etc. Et Cetera

EULA End User License Agreement

HC High Court

i.e. id est

J. Justice

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS LIST OF ABBREVIATIONS

Ltd. Limited

Mad. Madras

No. Number

In Re In Reference to

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Sec. Section

U.K United Kingdom

v. Versus

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

CASES

CASE NAME CITATION PAGE NO.

Babul Parate v. State of Maharashtra A.I.R. 1961 S.C. 884 7

Budhan Choudhry v. State of Bihar (1955) S.C.R. 1045 4, 5, 9

Central Bank of India v. Madhulika Guruprasad (2008) 13 S.C.C. 17 1

Dahir

Collector of Customs v. Sampathu Chettty A.I.R. 1963 S.C. 316 7

Consumer Action Group v. State of T.N. (2000) 7 S.C.C. 425 3

Dhakeswari Cotton Mills Ltd. v. C.I.T. A.I.R. 1955 S.C. 65 1

Express Newspapers v. Union of India A.I.R. 1958 S.C. 578 10

Ezhil v. State of Tamil Nadu A.I.R. 2002 S.C. 2017 2

Gian Singh v. State of Punjab A.I.R. 1974 S.C. 1024 3

Hanif v. State of Bihar A.I.R. 1958 S.C. 731 4, 6

Harakchand Ratanchand Bhatia v. Union of (1969) 2 S.C.C. 166 4

India

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS INDEX OF AUTHORITIES

Hem Raj v. State of Ajmer A.I.R. 1954 S.C. 462 2

Jamshed Hormusji Wadia v. Board of Trustees, (2004) 3 S.C.C. 214 2

Port of Mumbai

Javed v. State of Haryana (2003) 8 S.C.C. 369 5, 9

Karimbil Kunhikoman v. State of Kerala A.I.R. 1962 S.C. 723 4

Kerala Hotel and Restaurant v. State of Kerala A.I.R. 1990 S.C. 913 4

Kesavananda Bharati v. State of Kerala A.I.R. 1973 S.C. 1461 7

Kochuni K. K. v. State of Madras (1960) 3 S.C.R. 887 6

Kunhayammed v. State of Orissa A.I.R. 2000 S.C. 2587 1

Laxmi Khandsari v. State of U.P. A.I.R. 1981 S.C. 873 5, 9

Misrilal v. Sadasivaiah A.I.R. 1965 S.C. 553 3

N. Suriyakal v. A. Mohandoss (2007) 9 S.C.C. 196 1

Narpat Singh v. Jaipur Development Authority (2002) 4 S.C.C. 666 2

Northern India Caterers Pvt. v. State of Punjab A.I.R. 1967 S.C. 1581 4

Onkar Lal Bajaj v. Union of India (2003) 2 S.C.C. 673 3

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS INDEX OF AUTHORITIES

P. P. Enterprises v. Union of India A.I.R. 1982 S.C. 1016 6

Pritam Singh v. The State A.I.R. 1950 S.C. 169 1

Rajendra Kumar Chaturvedi v. State of (1974) 4 S.C.C. 327 3

Maharashtra

Rex v. Basudev A.I.R. 1950 S.C. 67 8

S.D.S. Shipping (P.) Ltd. v. Jay Container (2003) 9 S.C.C. 439 1

Services Co. (P.) Ltd.

Sadhu Singh v. State of P.E.P.S.U. A.I.R. 1954 S.C. 271 2

Saghir Ahmed v. State of U.P. (1955) 1 S.C.R 707 7

Shivannad Gaurishankar Baswanti v. Laxmi (2008) 13 S.C.C. 323 2

Vishnu Textile Mills

Srilekha Vidyarthi v. State of U.P. (1991) 1 S.C.C. 2012 3

State of Andhra Pradesh v. I.B.S. Prasada Rao A.I.R. 1970 S.C. 648 2

State of Assam v. Barga Dewani (1970) 3 S.C.C 236 1

State of Gujarat v. Shantilal Mangaldas A.I.R. 1969 S.C. 634 6

State of Haryana v. Jai Singh (2003) 9 S.C.C. 114 5, 9

State of Karnataka v. Hansa Corpn. A.I.R. 1981 S.C. 463 6

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS INDEX OF AUTHORITIES

State of Punjab v. Shiv Ram (2005) 7 S.C.C. 1 5

State of U.P. v. Deoman Upadhyaya A.I.R. 1960 S.C. 1125 4

Style (Dressland) v. Union Territory, (1999) 7 S.C.C. 89 3

Chandigarh

Sube Singh v. State of Haryana (2001) 7 S.C.C. 545 5, 6, 9

Suneel Jatley v. State of Haryana A.I.R. 1984 S.C. 1534 4

Tirupati Balaji Developers Pvt. Ltd. v. State of A.I.R. 2004 S.C. 2351 2
Bihar

Udai Singh Degar v. Union of India (2007) 10 S.C.C. 306 5

Unni Krishnan v. State of Andhra Pradesh A.I.R. 1993 S.C. 217 8

Virendra v. State of Punjab A.I.R. 1957 S.C. 896 7

Welfare Association. A.R.P. v. Ranjit P. Gohil (2003) 9 S.C.C. 358 5, 9

Zahira Habibullah Sheikh v. State of Gujarat A.I.R. 2004 S.C. 3467 2

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS INDEX OF AUTHORITIES

BOOKS

AUTHOR TITLE PAGE NO.

D. D. Basu Shorter Constitution of India (14th edn. 2009) 4, 7, 10

H. M. Seervai Constitutional Law of India (4th edn. 2009) 7

M. P. Jain Indian Constitutional Law (6th edn. 2010) 7, 10

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The State of Maharashtra has approached this Honourable High Court pursuant to Sec. 378 of

the Code of Criminal Procedure Code & Neha Mittal, Pankaj Mittal and Aloknath Kale have

been arrayed as respondents in this case.

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS SUMMARY OF FACTS

SUMMARY OF FACTS

A. THE BACKGROUND

Kamini Karia , a lawyer at “Hobb & Green Attorneys” was happily married to Nishant Karia
for 12 years who was a leading businessman. Neha Mittal ,her cousin was married to Pankaj,
an engineer by profession were living at Citadel Towers. Neha and Kamini were cousins and
shared an amicable relationship.

B. THE MONEY TRANSACTION

Under fiduciary relationship Kamini Karia lent some money to Neha to start her catering
business. On 12/06/04 as a part of such transaction, a sum of 20 lakhs was given to Neha as
investment in her catering business which she failed to return within 4 months as promised
and yet money remained unpaid.

On 31 /01/05 finding it difficult to sustain her catering business Neha borrowed another sum
of 30 lakhs as an investment into her business and promised to repay Kamini at the earliest
but history repeated itself and the money remained unpaid.

C. THE FINAL ULTIMATUM AND THE PURPORTED INSULT

On 27/03/05, after disagreements and arguments followed between Nishant and Kamini a
final ultimatum was given to Neha to pay the money due to them by September which they
require for remodelling their house.

D. THE CRIME

Feeling hurt at the insults by Kamini and Nishant , Neha decided to have her revenge and on
09/09/05,she called up Kamini and asked her to visit her residence at Citadel Towers,
N.I.B.M road ,Pune at 8 pm on that very day. Neha intimated to Kamini that she was happy
over the fact that her business had been peaking in recent times. The meeting which was
fixed between Neha and Mittal as planned by Neha was intimated to Nishant by Kamini. On
10/10/05 Kamini‟s highly decomposed body was found in the Malshej Ghats on Pune NH-50.

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS SUMMARY OF FACTS

Going back to 09/09/05 when the incident took place where Kamini left her office by 7:15
pm on her way to visit Neha‟s residence with a hope to get some money back and she had her
last conversation with Nishant at Henny‟s WaffleHut which was last phone call being
recorded. Nishant called upon Neha to ask whereabouts of Kamini to which Neha replied that
Kamini had never reached her residence at the decided time and henceforth she thought that
her meeting had been cancelled .

On 11/09/15 Nishant along with Usha and Vinod Dasgupta (Kamini‟s parents) filed a missing
person‟s complaint and informed the police that Kamini‟s car was also missing. On 12/09/05
the investigation started and Nishant who was suspected by the police in the beginning was
soon ruled out. Nishant informed the police that the last person to have possibly seen Kamini
was Neha as they had been scheduled to meet that evening.

On 25/09/05 the police located Kamini‟s missing car and recovered hair like fibres stuck to
the carpet in the boot of the car. On 05/10/15 Kamini‟s secretary Priya revealed the
documents to police given to her by Kamini. On 08/10/05 when the police reached Neha‟s
apartment it was found locked and both Neha and Pankaj were absconding. The police took
their domestic help Aloknath Kale for questioning and he revealed that both had gone to
Mysore on 06/10/05.

On 09/10/15 Aloknath Kale agreed to confess to the police that he had helped Neha and
Pankaj strangulate Kamini on 09/09/05 and he then helped Pankaj wrap up the body in the
carpet and load it in Kamini‟s car and drove towards Malshej Ghats where they dumped the
body. After then Aloknath was taken to the magistrate to record the statement.

On 10/10/05 the forensic team dug up the exact spot and retrieved the highly decomposed
body of a female in her mid thirties. A jewellery worn by her was sent for identification and
after post-mortem of the body it was concluded beyond doubt that the body was that of
Kamini. On 10/10/05 an FIR was filed against accused Neha, Pankaj and Aloknath for
murder of Kamini Karia and on 13/10/05 they were arrested. On 07/11/05 a chargesheet was
filed by police and trial was conducted by Hon‟ble Sessions Court of Pune at Pune. On the
basis of the witness testimonies and the evidence in the case, the Hon‟ble sessions court
acquitted Accused no 1 Neha Mittal, accused no 2 Pankaj Mittal and accused no 3 Aloknath
Kale. On 30/12/15 the judgement was passed where the all the three accused named have
been set free. The state has preferred an appeal before the Hon‟ble Bombay High Court .

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS STATEMENT OF ISSUES

STATEMENT OF ISSUES

PRELIMINARY OBJECTIONS

ISSUE I : WHETHER THE APPEAL BEFORE THE HONORABLE HIGH COURT IS MAINTAINABLE?

ON MERITS

ISSUE II : WHETHER THERE WAS A COMMON INTENT OR CRIMINAL CONSPIRACY ON THE PART

OF THE ACCUSED?

ISSUE III: WHETHER MRS. NEHA MITTAL, PANKAJ MITTAL AND ALOKNATH KALE CAN BE

HELD GUILTY OF MURDER OF KAMINI KARIA?

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

ISSUE 1: THE APPEAL FILED BEFORE THE HONORABLE HIGH COURT IS NOT MAINTAINABLE

A. THE HONORABLE COURT CANNOT BE TURNED INTO A MERE FACT FINDING

ENQUIRY

The Apex Court has already reiterated in many of its judgments that the
circumspection must induce the Court to interfere with the decision under challenge only if
the extraordinary flaws or grave injustice or other recognized grounds are made out. It is
submitted that the remedy under the section need not to be exercised in cases where
substantial justice is already done. The Honorable High Court can interfere only when the
findings are erroneous, perverse and results in miscarriage of justice.

B. THE APPEAL SHOULD BE DISMISSED IN LIMINE BECAUSE IT LACKS A VALID QUESTION

OF LAW.

Right of appeal is also not a natural or inherent right. In the absence of a substantial
question of law, allowing an appeal would further damage the original plaintiff and lead to
miscarriage of justice by unnecessary delaying the justice delivery process of dispute.

ISSUE II. THAT THERE WAS NO COMMON INTENT OR CRIMINAL CONSPIRACY ON THE PART OF

THE ACCUSED.

It is humbly submitted that, „Common intention‟ implies a pre-arranged plan and acting
in concert pursuant to the plan. It must be proved that the criminal act was done in concert
pursuant to the pre-arranged plan. Common intention comes into being prior to the
commission of the act in point of time, which need not be a long gap. Though establishing
common intention is a difficult task for the prosecution, yet, however difficult it may be, the

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS SUMMARY OF ARGUMENTS

prosecution has to establish by evidence, whether direct or circumstantial that there was a
plan or meeting of mind of all the assailants to commit the offence, be it pre-arranged or on
the spur of the moment but it must necessarily be before the commission of the crime.

In this case, there is nothing to suggest that there was a pre-arranged plan and prior
concert between the accused persons for the commission of the offence apart from the
confession of one Aloknath kale which is in itself inadmissible.

ISSUE III. MRS. NEHA MITTAL, PANKAJ MITTAL AND ALOKNATH KALE CANNOT BE HELD

GUILTY OF MURDER OF KAMINI KARIA.

A. WITNESS STATEMENTS ARE NOT RELIABLE

The confession of Alok Nath Kale is unreliable and weak because 1. His confession is

inadmissible and 2. Arguendo, he is himself a co-accused and hence an interested witness.

1. JAI SINGHANIA‟S STATEMENT IS WEAK EVIDENCE

Jai Singhania is the investigating officer and an interested witness i.e. a person who wants to
see the accused convicted because of his own animus or otherwise. Therefore it is humbly
submitted that conviction and corroboration cannot be made solely on the basis of Jai
Singhania‟s statements

2. PRAKASH YADAV‟S STATEMENT DOES NOT COMPLETE THE CHAIN OF EVENTS

However in this regard, the lower court has rightly concluded that even though last seen

theory was proved but no clinching or cogent evidence has been brought on record regarding

the exit of the deceased from Citadel Towers along with the accused. In furtherance, no

explanation has been given by the Prosecution as to how the deceased and accused exited

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MEMORIAL for RESPONDENTS SUMMARY OF ARGUMENTS

from the said complex.

B. DOCUMENTARY EVIDENCE ARE NOT CONCLUSIVE TO ATTRIBUTE CRIMINAL LIABILITY

The prosecution‟s arguments are leaning towards the fact that the crime „may have been
committed by the accused‟, however they have failed to make the link between „may have
committed the crime‟ and „must have committed the crime‟ and that gap must be filled by the
prosecution by legal, reliable and unimpeachable evidence before a conviction can be
sustained.

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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

I. THE APPEAL FILED BEFORE THIS HONORABLE IS NOT

MAINTAINABLE.

A. THE HONORABLE COURT CANNOT BE TURNED INTO A MERE FACT FINDING

ENQUIRY

[¶1] The principle settled by way of practice and procedure is that the High Court would

not disturb the decision of specially constituted authorities or tribunals, as an appeal court,

and would not review findings of fact except where they are perverse or shocking to the

judicial conscience.1 The Power of High Court is of widest amplitude, and the Court would

only interfere in exceptional cases, e.g., violation of the principles of natural justice or

because the appeal raises an important principle of law which requires the interference of a

constitutional Court.2

B. THE APPEAL SHOULD BE DISMISSED IN LIMINE BECAUSE IT LACKS A VALID QUESTION

OF LAW.

[¶2] Right of appeal is also not a natural or inherent right. In the absence of a substantial

question of law, allowing an appeal would further damage the original plaintiff and lead to

1
Kishanchand Narsingh Bhati v. State Transport Appellate Authority, AIR 1968 SC 1461: 1968 (3) SCR 605;
Concord of India v. Nirmala Devi, AIR 1979 SC 1666 : (1979) 4 SCC 365
2
Associated Cement Cos. v. Cement Workers Kamgar Union, AIR 1972 SC 1552 : (1972) 4 SCC 23.
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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS ARGUMENTS ADVANCED

miscarriage of justice by unnecessary delaying the justice delivery process of dispute.3

[¶3] The Apex Court has already reiterated in many of its judgments that the

circumspection must induce the Court to interfere with the decision under challenge only if

the extraordinary flaws or grave injustice or other recognized grounds are made out. 4 It is

only when some glaring error leading to grave failure of justice is made out, that the Supreme

Court would allow its jurisdiction to be invoked. 5

[¶4] In the instant case, the Petitioner failed to show that there exists special grounds to

invoke this petition. It is submitted that the remedy under the section need not to be exercised

in cases where substantial justice is already done. 6 The Honorable High Court can interfere

only when the findings are erroneous, perverse and results in miscarriage of justice. 7

Thus it is humbly submitted before this Honorable Court that it should not entertain this

appeal by exercising the discretion conferred upon it by Sec. 378 and in process turn this

proceeding into a mere fact finding enquiry.

II. THAT THERE WAS NO COMMON INTENT OR CRIMINAL

CONSPIRACY ON PART OF THE ACCUSED.

[¶5] It is humbly submitted that, „Common intention‟ implies a pre-arranged plan and

acting in concert pursuant to the plan. It must be proved that the criminal act was done in

concert pursuant to the pre-arranged plan. Common intention comes into being prior to the

3
Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, A.I.R. 2004 S.C. 2351.
4
Shivannad Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 S.C.C. 323.
5
Rajendra Kumar Chaturvedi v. State of Maharashtra, (1974) 4 S.C.C. 327; Gian Singh v. State of Punjab,
A.I.R. 1974 S.C. 1024.
6
S.D.S. Shipping (P.) Ltd. v. Jay Container Services Co. (P.) Ltd., (2003) 9 S.C.C. 439.
7
Ezhil v. State of Tamil Nadu, A.I.R. 2002 S.C. 2017.
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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS ARGUMENTS ADVANCED

commission of the act in point of time, which need not be a long gap. 8 Though establishing

common intention is a difficult task for the prosecution, yet, however difficult it may be, the

prosecution has to establish by evidence, whether direct or circumstantial that there was a

plan or meeting of mind of all the assailants to commit the offence, be it pre-arranged or on

the spur of the moment but it must necessarily be before the commission of the crime. Where

direct evidence is not available, it has to be inferred from the circumstantial evidence. 9

[¶6] Common intention should be anterior in time to the commission of the crime

showing a pre-arranged plan and a prior concert and though it is difficult in most cases to

prove the intention of an individual, it has to be inferred from the act or conduct or relative

circumstances of the case. Such an inference can be gathered by the manner in which the

accused arrived on the scene and mounted the attack, the determination and the concert with

which the beating was given or the injuries caused by one or some of them, the acts done by

others to assist those causing the injuries, the concerted conduct subsequent to the

commission of the offence and other acts.10 Though the common intention may be developed

on the spur of the moment, it must be anterior in time to the commission of offence. It may be

deduced from the overt act or conduct of the accused or from other relevant circumstances. In

a tenancy dispute accused persons attacked deceased and his family members. The accused

persons brought deadly weapons from house by which other accused attacked. Accused gave

only one lathi blow on arm of deceased. In the circumstances of the case, common intention

to commit murder was held as established. 11 Under this section a pre-concert in the sense of a

distinct previous plan is not necessary to be proved. The common intention to bring about a

particular result may well develop on the spot as between a number of persons, with

8
Sharif Ahmad Alias Achhan, (1956) 2 All 188.
9
Badruddin v. State of Utter Pradesh, AIR 1998 SC 3243.
10
Radha Kishan v. State, 1973 CrLJ 481.
11
Joginder Singh v. State of Haryana, 1995 SCC (Cri) 178 : AIR 1994 SC 461.
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REMEMBERING S.P. SATHE, 10TH THE MEMORIAL MOOT COURT COMPETITION
MEMORIAL for RESPONDENTS ARGUMENTS ADVANCED

reference to the facts of the case and circumstances of the situation. 12 Though common

intention may develop on the spot, it must however, be anterior in point of time to the

commission of the crime showing a pre-arranged plan and prior concert.13 But to constitute

common intention it is necessary that the intention of each one of the accused be known to

the rest of them and be shared by them.

[¶7] Where is respect of an assault by a number of persons with lathies there is no

evidence of any common intention to cause grievous hurt to a particular person and there is

also no evidence as to which of the persons did in fact cause a grievous hurt, a conviction of

all of them under Ss. 34 and 325. Penal Code, cannot be sustained. 14

Similarly in this case, there is nothing to suggest that there was pre-arranged plan and prior

concert between the accused persons for the commission of the offence apart from the

confession of one Aloknath kale which is in itself inadmissible.

III. THAT MRS. NEHA MITTAL, MR. PANKAJ MITTAL AND ALOKNATH
KALE HAVE NOT BE HELD GUILTY OF THE MURDER OF KAMINI
KARIA.

[¶8] It is humbly submitted that Mrs. Neha Mittal, Mr. Pankaj Mittal and Aloknath kale

[Hereinafter referred to as the accused no. 1, accused no.2 and accused no.3 respectively]

cannot be held guilty of murder of Kamini Karia[Hereinafter referred to as the deceased]. A,

crime is an act deemed by law to be harmful to the society in general, even though its

immediate victim is an individual. 15 In other words „Çrime‟ can be defined as an act or

commission of an act specifically forbidden by law, it may be an offence against morality or

12
AIR 1954 SC 706 : 1954 CRLJ 1757.
13
Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413.
14
Tillu Ahir v. Rex, AIR 1949 All 89.
15
P.S.R. Sadhanantham v. Arunachalam, AIR 1980 SC 865: (1980) 3 SCC 141.
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MEMORIAL for RESPONDENTS ARGUMENTS ADVANCED

social order.16 The defense further submits that the (A) Witness statements are not reliable

and (B) Documentary evidence are not conclusive to attribute criminal liability.

A. WITNESS STATEMENTS ARE NOT RELIABLE

[¶9] The confession of Alok Nath Kale is unreliable and weak because 1. His confession

is inadmissible and 2. Arguendo, he is himself a co-accused and hence an interested witness.

1. ALOK NATH KALE‟S CONFESSION IS INADMISSIBLE

a. Confession has been procured by inducement, threat or promise

[ ¶ 10 ] Compulsion is an essential ingredient of Art. 20(3) of the Constitution of India.17

This clause covers a confession not made voluntarily, 18 but does not, accordingly, prohibit

the admission of the confession which is made without any inducement, threat or promise, 19

even though it may be subsequently retracted, 20 or debar the accused from voluntarily

offering himself to be examined as a witness. 21 „Compulsion‟, in the present context, means

„duress‟ which must be proved.22 Compulsion may, however, be of many forms; it may be

physical or mental23 but mental compulsion takes place only “when the mind has been so

conditioned by some extraneous process as to render the making of the statement involuntary

and therefore extorted”.24

16
T.K. Gopal v. State of Karnataka, (2000)6 SCC 168: AIR 2000 SC 1669.
17
Sharma, M.P v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300.
18
Ayyub v. State of U.P, (2002) 3 SCC 510, 517-18 (para 15) : AIR 2002 SC 1192.
19
State of Assam v. Rajkhowa Upendra Nath, (1975) Cr. LJ 354 (para 45).
20
Kalawati v. State of H.P., 1953 SCR 546 : AIR 1953 SC 131.
21
Bhagat, R.S. v. Union of India, AIR 1982 Delhi 191 (para 12).
22
Poolpandi v. Supdt. Central Excise, AIR 1992 SC 1795 : (1992) 3 SCC 259;
23
Yusufalli Esmail NAgree v. State of Maharashtra, AIR 1968 SC 147 (150)
24
Poolpandi v. Supdt. Central Excise, AIR 1992 SC 1795.
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[ ¶ 11 ] In Sharma v. Satish,25 the Supreme Court made a distinction between a person being

compelled to do a volitional act and something being obtained from him without involving

any volitional act on his part and held that the immunity offered by Art. 20 (3) is confined to

the former case and is not available in the latter.

[ ¶ 12 ] It is on this principle that the Court held that the immunity is available to an accused

person when a compulsory process or notice is issued, directing him, under pain of penalty,

to produce a document, but not when a document is recovered from him by search and

seizure by a police officer without involving any volitional act on the part of the accused

from whose possession the document is recovered. 26

[ ¶ 13 ] SHAH J., in State of U.P. v. Deoman Upadhyaya, 27 after dealing with Section 24-

27 individually, observed as follows:

“On an analysis of Sections 24 to 27 of the Indian Evidence Act, and Section 162 of the Code

of Criminal Procedure, the following material propositions emerge:

(a) Whether a person is in custody or outside, a confession made by him to a

Police Officer, or the making of which is procured by inducement, threat or
promise, having reference to the charge against him and proceeding from a person
in authority, is not provable against him in any proceeding in which he is charged
with the commission of an offence.
(b) A confession made by a person whilst he is in the custody of a Police Officer to a
person other than a Police Officer is not provable in a proceeding in which he is
charged with the commission of an offence unless it is made in the immediate
presence of a Magistrate.
(c) The part of the information given by a person whilst in police custody, whether
the information is confessional or otherwise, which distinctly relates to the fact

25
Sharma, M.P. v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300.
26
Sharma, M.P. v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300.
27
AIR 1960 SC 1125
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thereby discovered but no more, is provable in a proceeding in which he is

charged with the commission of an offence.
(d) A statement, whether it amounts to a confession or not, made by a person when he
is not in custody, to another person, such latter person not being a Police Officer,
may be proved if it is otherwise relevant.
(e) A statement made by a person to a Police Officer in the course of an
investigation of an offence under Chapter 14 of the Criminal Procedure Code
cannot except to the extent permitted by Section 27 of the Indian Evidence Act, be
used for any purpose at any enquiry or trial in respect of any offence under
investigation at the time when the statement was made in which he is concerned
as a person accused of an offence. 28

[ ¶ 14 ] The Supreme Court in Shankaria v. State of Rajasthan 29 observed: “It is well settled

that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt.

Therefore, when in a capital case the prosecution demands a conviction of the accused

primarily on the basis of his confession recorded under Section 164 Cr. P.C, the court must

apply a double test:

[ ¶ 15 ] Whether the confession was perfectly voluntary and if so, whether it was true and

trustworthy? However in this case answer to both the questions is in negative as is evident

from the video taken by shyam patil and the statement of Shyam Patil which has been marked

as exhibits.

It is thus humbly submitted that the confession of Aloknath Maruti Kale is inadmissible as

evidence before this Honorable court.

b. Arguendo, he is himself a co-accused and hence an interested witness.

[ ¶ 16 ] Now, the confession of an accused person is a much weaker type of evidence than

28
Rajkishore Bhuyan v. State, AIR 1969 Ori 190.
29
AIR 1978 SC 1248.
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the evidence of an approver which is not subject to any of these infirmities. Such a confession

can however be used to lend assurance to other evidence against a co-accused. The proper

way to approach a case of this kind is, first, to marshal the evidence against the accused

excluding the confession altogether from consideration and see whether if it is believed, a

conviction could safely be based on it. If it is capable of belief independently of the

confession, then it is not necessary to call the confession in aid. But cases may arise where

the judge is not prepared to act on the other evidence as it stands even though, if believed, it

would be sufficient to sustain a conviction. In such an event the judge may call in aid the

confession and use it to lend assurance to the other evidence and thus fortify himself in

believing what without the aid of the confession he would not be prepared to accept.30 An

accused of an offence cannot be convicted merely on the basis of a confessional statement of

the co-accused in absence of any other sufficient evidence. 31 The confessions of persons,

jointly tried for the same offence with the accused, are not according to the Bombay High

Court, technically are not even evidence. 32

Thus, it is humbly submitted that Alok Nath Kale‟s confession is inadmissible and conviction

cannot be made on the basis of this statement

2. JAI SINGHANIA‟S STATEMENT IS WEAK EVIDENCE

[ ¶ 17 ] Jai Singhania revealed that, “As per the information revealed by Aloknath, we
headed towards Malshej Ghat. We reached the exact spot where Aloknath alleged to have
dumped the body. After the team dug up the area, we recovered the decomposed body of the
deceased. A spot panchnama, inquest panchnama was done and the body was subsequently
sent for post mortem.”

30
Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526 : AIR 1952 SC 159.
31
Karupasamy v. State, 2004 CrLJ 2935, 2936, para 7 (Mad) : 2004 (2) CTC 507.
32
Queen Empress v. Khandiabin Pandu, ILR (1890) 15 Bom 66;
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Now, Jai Singhania is the investigating officer and an interested witness i.e. a person who

wants to see the accused convicted because of his own animus or otherwise.33 Therefore it is

humbly submitted that conviction and corroboration cannot be made solely on the basis of Jai

Singhania‟s statements.

3. PRAKASH YADAV‟S STATEMENT DOES NOT COMPLETE THE CHAIN OF EVENTS

[ ¶ 18 ] Prakash Yadav, the watchman is a key witness and he admitted that, “That night I
did see Kamini Ma‟am enter the building where the Mittal‟s stay.” 34

[ ¶ 19 ] However in this regard, the lower court has rightly concluded that even though last

seen theory was proved but no clinching or cogent evidence has been brought on record

regarding the exit of the deceased from Citadel Towers along with the accused. 35 In

furtherance, no explanation has been given by the Prosecution as to how the deceased and

accused exited from the said complex.

Thus it is humbly submitted that the chain of events is not complete except for the last seen

theory and conviction cannot be made on such ground

B. DOCUMENTARY EVIDENCE ARE NOT CONCLUSIVE TO ATTRIBUTE CRIMINAL LIABILITY

[ ¶ 20 ] Peter Murphy defines documentary evidence as “Evidence afforded by any

document produced for the inspection of Court, whether as direct or hearsay evidence of its

contents.”36 The words “intended” to be used, or which may be used, in the definition of

33
Tota Singh v State of Punjab, AIR 1987 SC 1083.
34
Moot Proposition, pg. 19.
35
Moot Proposition, Pg. 29.
36
A PRACTICAL APPROACH TO EVIDENCE, 1985, 2nd Edn., page 7.
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word “document” imply that the document has to be used by some party against another. 37 If

it is to be so used there should be intrinsic evidence in the document itself of some particular

party or parties being associated with the same. 38 The documents marked as exhibits without

proof cannot form the basis of judgment. 39 Now in this case, the accused can not be held

guilty of the offence because of inconclusiveness of a. Post Mortem Report, b. CCTV

footage at toll naka and c. DNA analysis report.

a. Post Mortem Report

37
Section 3, Evidence Act reads as, “Interpretation clause. —In this Act the following words and expressions
are used in the following senses, unless a contrary intention appears from the context:— “Court”. —“Court”
includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence.
“Fact”. —“Fact” means and includes—
(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious. Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a
particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact. “Relevant”. —One fact is said to be relevant to another when
the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the
relevancy of facts. “Facts in issue”. —The expression “facts in issue” means and includes— any fact from
which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any
right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation.—
Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court
records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
Illustrations A is accused of the murder of B. At his trial the following facts may be in issue:— That A caused
B's death; That A intended to cause B's death; That A had received grave and sudden provocation from B; That
A at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of
knowing its nature. “Document”. —“Document” means any matter expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter. Illustrations A writing is a document; Words printed,
lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or
stone is a document; A caricature is a document. “Evidence” .— “ Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of
fact under inquiry, such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court], such documents are
called documentary evidence. “Proved” .—A fact is said to be proved when, after considering the matters before
it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists. “Disproved”. — A fact is said to
be disproved when, after considering the matters before it, the Court either believes that it does not exist, or
considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it does not exist. “ Not proved”. — A fact is said not to be proved when it is
neither proved nor disproved. [“ India ”. —“ India ” means the territory of India excluding the State of Jammu
and Kashmir .] [the expressions “Certifying Authority”, [electronic signature], [Electronic Signature
Certificate], “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital
signature” and “subscriber” shall have the meanings respectively assigned to them in the Information
Technology Act, 2000 (21 of 2000).]
38
The Law of Evidence, Ratanlal & Dhirajlal, 46, (23rd edn.).
39
A. Munuswami v. R. Sethuraman, AIR 1995 Mad 375 (para 10).
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[ ¶ 21 ] Wound no. 1 is a fracture to the hyoid bone. The wound is located on the neck.

Wound no. 1 is caused by unnatural causes whereas Wound no. 2 is natural. Wound no. 1 is

caused due to an external force or pressure upon the neck. The opinion further reveals that,

the cause of death to the best of my knowledge and belief is asphyxia due to strangulation.

b. CCTV footage at toll naka

[ ¶ 22 ] CCTV footage at toll naka further reveals that the car was actually headed towards

the Malshej Ghat.

c. DNA analysis report

[ ¶ 23 ] The result of the DNA analysis concluded that no doubt in concluding that the two

hair samples obtained belong to the same individual.

However no documentary evidence presented has proved beyond a reasonable doubt that the

accused were involved in the murder of the deceased in furtherance of common intention.

In light of all the aforementioned arguments, the accused humbly submits that there exists
reasonable doubt and hence he should be acquitted of the alleged crime. A reasonable doubt
must not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason
and common sense arising out of the evidence of the case. 40

The prosecution‟s arguments are leaning towards the fact that the crime „may have been
committed by the accused‟, however they have failed to make the link between „may have
committed the crime‟ and „must have committed the crime‟ and that gap must be filled by the
prosecution by legal, reliable and unimpeachable evidence before a conviction can be
sustained.41

40
Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36
41
Nelson R. A. , Indian Penal Code, p. 2905 , (10th Ed. 2008)
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Therefore, it is humbly submitted before this Hon‟ble Court that the charge under section 302
of the IPC has not been made out due and he should be acquitted of the same.

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MEMORIAL for RESPONDENTS PRAYER

PRAYER

In light of the facts of the case, arguments advanced and authorities cited, it is humbly

requested that this Hon‟ble court may be pleased to adjudge and declare that-

1. The appeal filed before the Honorable High Court is not maintainable.

2. That there was no common intent or criminal conspiracy on the part of the accused.

3. That Mes. Neha Mittal, Pankaj Mittal and Aloknath Kale cannot be held guilty of

murder of Kamini Karia.

4. The Order of the Sessions Court should be upheld.

5. Or pass any other order in the interest of equity, justice and good conscience.

The Honorable Court may also be pleased to pass any other order which the Court may deem

fit in the light of justice, equity and good conscience.

All of which is most humbly prayed.

Counsel for the Respondents

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