T-13(R)

ASGAR KHAN ADVOCATE NATIONAL ONLINE MOOT COURT

COMPETITION-2020

BEFORE THE HON’BLE SUPREME COURT OF ORIENT

UNDER ART. 134 OF THE CONSTITUTION OF REPUBLIC OF ORIENT

IN THE MATTER OF

PHILLIP COOPER …………………………………………..PETITIONER

V.

UNION OF ORIENT & OTHERS…………………………….RESPONDENT

CRIMINAL APPEAL NO. -……….OF 2020

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER

HON’BLE JUSTICES OF SUPREME COURT OF ORIENT

WRITTTEN SUBMISSION ON BEHALF OF THE RESPONDENT

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MEMORIAL ON BEHALF OF THE RESPONDENT
 TABLE OF CONTENTS

Sn. No. Heading Pg. No.

1. COVER PAGE 1

2. TABLE OF CONTENTS 2

3. LIST OF ABBREBIATION 3

4. INDEX OF AUTHORITIES 4-5

5. STATEMENT OF JURISDICTION 6

6. STATEMENT OF FACTS 7-8

7. ISSUES 9

8. SUMMARY OF ARGUMENTS 10

9. ARGUMENT ADVANCED 11-19

1. WHETHER THE DISMISSAL OF THE APPEAL BY 11-14

THE HIGH COURT WAS JUSTIFIED?
2. WHETHER THE ACQUITTAL OF ALL, IN OTHER 15-19
CHARGES & REDUCTION IN THE SENTENCE
OF NEELIMA ON HUMANITARIAN GROUND
WAS JUSTIFIED?

10. PRAYER 20

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MEMORIAL ON BEHALF OF THE RESPONDENT
 LIST OF ABBREVIATIONS

AIR All India Reporter

Art. Article
Hon’ble Honourable
Ors. Others
Anr. Another
Cri. LJ / Cr. LJ Criminal Law journal
SCC Supreme Court Cases
Cr.P.C. Criminal Procedure Code
S. Section
SC Supreme Court
IPC Indian Penal Code
v. Versus
UOI Union of India
& And
HC High Court
UDHR Universal Declaration of Human Rights
UN United Nation
ICCPR International Covenan on Civil & Political Rights
CRC Convention on the Rights of Child
OPC Orient Penal Code
IT Information Technology

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MEMORIAL ON BEHALF OF THE RESPONDENT
 INDEX OF AUTHORITIES

Sn. Case Name Citation Pg.

No. No.
1 Bodh Raj v. State of Jammu and Kashmir 2002 Supp (2) SCR 67 11
2 State of Uttar Pradesh v. Satish 2005 (3) SCC 144 12
3 Sahadevan &Anr. v. State of Tamil Nadu 2012 (2) RCR 899 12
4 Harendra Narain Singh v. State of Bihar 1991 AIR 1842 12
5 Jaharlal das v. State of Orissa 1991 SCR (2) 298 13
6 Surinder Pal Jain v. Delhi Administration 1993 SCR (2) 226 13
7 Himachal Pradesh Administration v. Om Prakash 1972 AIR 975 13
8 H.D Shikand Th;Lrs v. CBI & Anr. 2017 AIR 164 14
9 M.V.Krishnan v. State (1972) 1 SCC 249 14
10 R.K. Gupta v. Union of India & ors. 2005 (3) AISLJ 390 14
11 Sharad Birdhi Chand Sarad v. State of 1973 (2) SCC 793 14
Maharashtra
12 Reena v State (NCT of Delhi) 2020 SCC online Del 630 19
13 Roe v. Wade [1973] 410 U.S. 113 16
14 Planned Parenthood v. Casey [1992] 505 U.S. 833 16
15 Suchita Srivastava v. Chandigarh Administration Civil Appeal No.5845 16
2009
16 Vishakha v. State of Rajasthan (1997) 6 SCC 241 17
17 Oriental Insurance Corp. Ltd. v. Shanthilal Pate & 2007(4) ALD 855 17
Anr.
18 R.D. Upadhyay v. State Andhra Pradesh (1998) 5 SCC 696 18
19 Gulab v. State of Maharashtra & Ors LQ 2014 HC 18852 18
20 Rakhi Bhattacharjee &Ors. v. State (2009) 2 CAL LT 105 13

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MEMORIAL ON BEHALF OF THE RESPONDENT
  BOOKS
S. NO. Books Referred Edition &
Year
1. RATANLAL AND DHIRAJLAL, THE CODE OF CRIMINAL 22nd ed., 2013
PROCEDURE
2. S.N. MISHRA, INDIAN PENAL CODE 22nd ed., 2020

3. AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE 23rd Ed., 2018

4. M.P. JAIN, INDIAN CONSTITUTIONAL LAW 6th Ed., 2010

LAWS & STATUTES

• CONSTITUTION OF INDIA,1950
• CRIMINAL PROCEDURE CODE,1973
• INDIAN EVIDENCE ACT,1872
• INDIA PENAL CODE,1860

WEBSITES

1. www.manupatra.com
2. www.scconline.com
3. www.AIRonline.com
4. www.indiankanoon.com
5. www.vakilno.1.com
6. www.advocatekhoj.com

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MEMORIAL ON BEHALF OF THE RESPONDENT
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Orient has the jurisdiction in this matter under Art. 134 of the
Constitution of Republic of Orient which reads as follows: -
“134. Appellate jurisdiction of Supreme Court in regard to criminal matters.
(1) An appeal shall lie to the Supreme Court from any judgement, final order or sentence
in a criminal proceeding of a High Court in the territory of India if the High Court:
(a) has on appeal reversed an order of acquittal of an accused person and sentenced
him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him to
death; or
(c) certifies under Article 134A[1] that the case is a fit one for appeal to the Supreme
Court: Provided that an appeal under sub-clause(c) shall lie subject to such
provisions as may be made in that behalf under clause (1) of article 145 and to
such conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers to entertain
and hear appeals from any judgement, final order or sentence in a criminal proceeding
of a High Court in the territory of India subject to such conditions and limitations as
may be specified in such law.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 STATEMENT OF FACTS

The Republic of Orient is one of the countries struggling to balance its cyber laws against
new forms of cyber-crimes. It is constitutional democracy and establishes the Supreme Court
of Orient, the final interpreter of the Constitution of Orient and is considered as the custodian
of basic civil rights and liberties of its citizens. The constitutional and policy framework of
Republic of Orient are pari materia to the Republic of India and their laws are identical.

• Dauphin Cooper, Aged 32, a highly educated rich corporate heir and enthusiastic
young politician, held position of managing trustee and trustee of several trust in the
state of Seola(Southernmost state of republic of Orient situated on shores of Orient
Ocean), held a respectable and dignified position in the eyes of people of Seola.
• In 2008, Government of Seola invited tenders of Construction of a bridge named on
Sohaner Expressway which was won by Dauphin’s company ‘Bourborn
Constructions’ as it was one Rupee less than the bid of ‘Natraj Builders’ owned by the
family of former MLA of Sohaner, Heera Bisht Alias Dappu, Aged 30.
• A few weeks after opening of tender Dauphin Cooper and his brother Philip Cooper
started to receive abusive and demeaning comments on their social media posts on
various social platforms from Heera Bisht and his associates named Peter Williams
and Daniel Thomas.
• Prank calls at night disturbing Coopers’ peace so Dauphin Cooper reported these
incidents to the local Police of his locality who showed inability because section 66 A
of IT Act, 2000 which was only remedy available in most of the cyber bulling cases
was declared unconstitutional by Supreme Court of Orient.
• The news of Attempt to lodge a complaint by Dauphin reached Heera Bisht and he
made his cyber bulling more rigorous.
• Neelima riddle, live-in partner of Heera Bisht made a fake profile named Joel
Shimpson, came in contact with Dauphin on various social media platforms, posed as
a follower and well-wisher of Dauphin and suggested him to sexually assault Neelima
to avenge all offensive acts done by Heera Bisht against Dauphin.
• Dauphin refuted this idea and shared screenshots of this chat on various social media
groups in order to gather information of Jeol Shimpson but Peter Williams who was a
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MEMORIAL ON BEHALF OF THE RESPONDENT
 member in one of these groups, used the screenshots posted by Dauphin
misinterpreting its contents in order to make public opinion against him.
• Neelima riddle made a social media post on 22nd March 2019 stating# Me Too
alleging that Dauphin sexually harassed her, she lodged FIR against him on same day.
On the same day an unknown person hacked Dauphin cooper fabbook account and
sent a message of Neelima’s account apologizing for sexually harassing her.
• The Police called Dauphin to police station and his statement u/s 161 Cr.P.C was
recorded in which he stated that “he does not even know who Neelima is and that the
FIR against him was nothing but a plot hatched by Neelima, Heera and his friends”.
• Dauphin was arrested by police and criminal proceeding u/s 354 A was initiated
against him. A bail application was filed by Dauphin u/s 439 Cr.P.C and subsequently
bail was granted.
• Dauphin on 30th April 2019, soon after his bail, he called his friend & told him that he
wanted to end his life as he can’t bear cyber bullying & fake allegations. He hung
himself from a ceiling fan in his house and left a suicide note mentioning that he can’t
bear the societal pressure & fake allegations.
• An FIR was filed by Philip Cooper to seek justice for his brother. Investigation
Officer found sufficient evidence in support of the claim that Dauphin’s Social media
account was hacked before texting and apologizing to Neelima.
• A case was registered against Neelima, Heera, Peter and Daniel u/s 120 B, 306 and
500 of OPC and section 66C of IT Act, 2000 on grounds of various evidence
including suicide note.
• Trial court acquitted Heera and his friends as no evidence was present on record
incriminating them but Neelima was convicted u/s 500 of OPC on the basis of
circumstantial evidence present on record for criminally defaming Dauphin by putting
false allegation and she was imprisonment of six months and a fine of Rupees 5000.
• Philip appealed against the judgement of trial Court in the High Court of Seola but
High Court upheld the decisions of trial Court and the appeal was dismissed.
• In Neelima’s appeal against order of trial court, the High court allowed her appeal and
reduced her punishment only to a fine of RS 5000 taking into account that it was her
first offence and that she was four month’s pregnant which would mean that any
imprisonment awarded to her will be detrimental to her innocent child’s health.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 ISSUES RAISED

ISSUE-1

WHETHER THE DISMISSAL OF THE APPEAL BY THE HIGH COURT WAS

JUSTIFIED?

ISSUE- 2

WHETHER THE ACQUITTAL OF ALL, IN OTHER CHARGES & REDUCTION IN

THE SENTENCE OF NEELIMA ON HUMANITARIAN GROUND WAS JUSTIFIED?

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MEMORIAL ON BEHALF OF THE RESPONDENT
 SUMMARY OF ARGUEMENTS

ISSUE- 1 - WHETHER THE DISMISSAL OF THE APPEAL BY THE HIGH COURT

WAS JUSTIFIED?

It is humbly submitted that the issue focuses on, the general rules to follow while convicting
a person on circumstantial evidence from which the High Court, is not satisfied and hence, it
is contended that dismissal of the appeal is justified.

ISSUE 2: - WHETHER THE ACQUITTAL OF ALL IN OTHER CHARGES &

REDUCTION IN THE SENTENCE OF NEELIMA ON HUMANITARIAN GROUND
WAS JUSTIFIED?

Their acquittal & reduction in sentence is justified because no any proper evidence has been
found related to the charges framed against them, and in case of Neelima who was a
pregenant lady of four months has a reasonable reason for the same. The fetus has the Right
to Life and no person can be deprived of his/her life as mentioned under article 21 of the
constitution.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 ARGUMENTS ADVANCED

ISSUE- 1 - WHETHER THE DISMISSAL OF THE APPEAL BY THE HIGH COURT

WAS JUSTIFIED?

The dismissal of appeal was justified, as no any proper evidence was found against the
accused for their conviction, and the circumstantial evidence was inconclusive too. It also
lays down the guidelines from certain cases on the entitlement of ‘Benefit of Doubt’. The
Argument focuses upon how the person can be entitled to the benefit of doubt and how such
benefit would help him. Finally, with the basis of a very similar case, the counsel’s argument
pleads that the Supreme Court should not maintain this appeal.

[1.1] Can a person be solely convicted on the basis of circumstantial evidence?

It has been held in many cases that circumstantial evidence can be consireded, but only when
those evidences are much satisfactory and can lead to conviction.
In the famous case of Bodh Raj v State of Jammu & Kashmir1, the hon’ble court held that
“circumstantial evidence can be a sole basis of conviction provided that the conditions as
stated below are fully satisfied. Conditions are :- 1. The Circumstances from which guilt is
established must be fully proved; 2. That all the facts must be consistent with the hypothesis
of the guilt of the accused; 3. That the circumstances must be of a conclusive nature and
tendency; 4. That the circumstances should, to a moral certainty, actually exclude every
hypothesis except the one proposed to be proved.”
In the present case, the circumstances of the guilt have not been fully proven in any of the
courts. The facts are in a reasonable doubt to be consistent with the facts of the case, which
leads to the dismissal of the appeal of petitioner by the High Court. And, the evidence also,
does not exclude every hypothesis because if it did, the HC won’t have dismissed the appeal.
This case has a lot of doubts involved in it. So, convicting a person solely on the basis of
circumstantial evidence won’t be justified.
1
Bodh Raj v State of Jammu & Kashmir, 2002 supp (2) SCR 67
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MEMORIAL ON BEHALF OF THE RESPONDENT
In case of, State of U.P. v Satish2 & Sahadevan & Anr. Vs State of Tamil Nadu3, it was laid
down that “when a case rests upon circumstantial evidence, such evidence must satisfy the
following tests: (1) The circumstances from which an inference of guilt is sought to be drawn
must be cogently and firmly established; (2) Those circumstances should be of a definite
tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken
cumulatively, should form a chain in so complete manner, that there is no escape from the
conclusion that within all human probability the crime was committed by the accused and
none else; (4) The circumstantial evidence in order to sustain conviction must be complete
and incapable of explanation of any other hypothesis than that of guilt of the accused and
such evidence should not only be consistent with the guilty of the accused but should be in
consistent with his innocence. Rule (1) itself isn’t sufficiently fulfilled in our case because
the facts of the case presented by the prosecution aren’t themselves firmly established.
Following the rule of Harendra Narain Singh case, “if one is pointing towards the crime and
other towards the guilt, then the innocence is to be considered.”
Yet, if there is any basic rule of criminal jurisprudence that if two views are possible on the
evidence adduce in a case of circumstantial evidence, one pointing to the guilt of the accused
and other to his innocence, the court should adopt the latter view favourable to the accused.

The circumstances of the case are only pointing towards the guilt of the accused, just because
the appellant has presented the facts in such a way, which the HC has subsequently denied.
With the dissatisfaction of these rules laid down by the SC, how can we necessarily convict
the person of this crime when there is reasonable doubt? The Court had observed that though
the offences are shocking, the gravity of the offence cannot by itself overweigh the
requirements of legal proof. Plus, there is a possibility of reasonable doubt which points
towards the innocence of the respondents. In a case based on circumstantial evidence, the
settled law is that “the circumstances from which the conclusion of guilt is drawn should be
fully proved and those circumstances must be conclusive in nature. Moreover, the established
facts are consistent only with the hypothesis of the guilt of the accused alone and totally
inconsistent with his innocence.

It is thereby humbly submitted before this honourable court that there is no clear evidence of

2
State of U.P. v Satish, 2005 (3) SCC 114
3
Sahadevan & Anr. Vs State of Tamil Nadu 2012 (2) RCR (Criminal)899 26 1994 Supp. (2) SCC 372 17
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MEMORIAL ON BEHALF OF THE RESPONDENT
linking the accused as well as, there is a reasonable amount of doubt in the conviction.
Therefore, the respondents should not be held guilty of this crime.

[1.2]Whether the defendant is entitled to the benefit of doubt?

Relying upon Article 11 of the Universal Declaration of Human Rights (UDHR), the learned
counsel contends that “Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to the law in a public trail at which he has had all the
guarantees necessary for his defence.”

Conviction just because of a mere doubt, affects the Human Rights of and individual, as they
cast a stigma upon the person. The learned counsel further contends that if "benefit of doubt
of acquittal" is unknown to law, it’s unknown to Criminal Courts also. So long as the Trial
Courts use such phraseology, there is no alternative for persons affected thereby, to challenge
the same. A criminal court could be convinced of the guilt only beyond the range of a
reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition.4

In Rakhi Bhattacharjee &Ors. v. State5 case the judgement and order of conviction, passed by
the learned Additional Sessions Judge was set aside, as the procecution had failed to prove
the charge against the accused persons beyond any doubt and there was room for doubt
regarding the claim of the procecution. The benefit of doubt was given to the accused persons
and they were held not guilty.

Memorial on behalf of the Respondent thinking is in favour of the view that proof beyond a
reasonable doubt is the same as proof which affords moral certainty to the Judge. The Apex
Court in Himachal Pradesh Administration v. Om Prakash,6 while considering “benefit of
doubt” observed as follows: “The benefit of doubt to which the accused is entitled is
reasonable doubt- the doubt with rational thinking men will reasonably, honestly and
conscientiously entertain, and not the doubt of a timid mind which fights shy- though
unwittingly it may be afraid of the logical consequences, if that benefit was not given. Or as
one great Judge said “it is not the doubt of a vacillating mind that has no moral courage to
decide, but shelters itself in a vain and idle skepticism.” Where, in a criminal trial an accused

4
Jaharlal Das vs State Of Orissa 1991 SCR (2) 298; Surinder Pal Jain vs Delhi Administration 1993 SCR (2)
226
5
Rakhi Bhattacharjee &Ors. v. State (2009) 2 CAL LT 105
6
Himachal Pradesh Administration v. Om Prakash 1972 AIR 975, 1972 SCR (2) 765
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MEMORIAL ON BEHALF OF THE RESPONDENT
is acquitted for want of evidence, it would be treated to be an honourable acquittal. In the
present case as well, there is an actual want of evidence because, except for the made up case
of the prosecution, there are no actual facts connecting the respondent to the crime.
Therefore, using the principle, there should be an honourable acquittal for the respondent and
it should be hereby maintained.

Finally, in the case of H.D. Sikand The Lrs vs C.B.I.& Anr7 , which has almost similar facts
as compared to our case, the High Court dismissed the appeal and where the trial court also
acquitted the accused from all the charges, for the simple reason of lack of evidence and
benefit of doubt. This was then appealed to the Supreme Court and even the SC held:- After
hearing the learned counsel for the parties and after going through the records of this matter,
including the evidence, as analyzed by the High Court as well as the Trial Court, it appears
that the case in hand is totally dependent upon the circumstantial evidence. We have
examined the evidence laid in course of the arguments and have been specifically considered
the tests M.V.Krishnan v. State & R.K.Gupta v.Union of India and Ors. Memorial on behalf
of the Respondent which have to be met by the prosecution to get success in the matter as
laid down by this Court in Sarda Vs. State of Maharashtra8, wherein the tests have been
specifically given and it appears to us after analyzing the facts and evidence in this case, that
the prosecution has failed to pass such tests to bring home the guilt of the accused.

Accordingly, in our opinion, the Trial court and the High Court has correctly come to the
conclusion, and findings recorded by the High Court are plausible, logical and persuasive,
reached by the materials on record and command for affirmation. Thus, we do not have any
hesitation to hold that the High Court has correctly came to the conclusions with the reasons
given therefore. Though, we do not find any merit in these appeals which are hereby
dismissed. Thereby, in reference to this case, the counsel pleads before this court that as the
Supreme Court should dismiss the appeal on the grounds that there is reasonable doubt in the
favour of the defendant, because the findings of the HC are correct and thereby their decision
is justified.

7
H.D. Sikand The Lrs vs C.B.I.& Anr. 2017 AIR 164
8
Sarda Vs. State of Maharashtra [1973] 2 SCC 793
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MEMORIAL ON BEHALF OF THE RESPONDENT
ISSUE 2: - WHETHER THE ACQUITTAL OF ALL, IN OTHER CHARGES &
REDUCTION IN THE SENTENCE OF NEELIMA ON HUMANITARIAN GROUND
WAS JUSTIFIED?

The acquittal and reduction in sentence is justified, as the charges of criminal conspiracy
under section 120 and abetment to suicide under sec. 306 of Orient Penal Code were imposed
but not even a single evidence was found against them regarding these charges, and
conviction of anyone without any proper evidence and just on a suicide note, leads to
unfairness.

The situation of Neelima was reasonable and the reduction in sentence on humanitarian
ground was justified too, because she was pregnant, with four months baby in her womb, and
she didn’t have any criminal past record also.

Burden of proof always relay on the petitioner side and it is the petitioner’s duty to produce
proper evidences which was totally lacking in this case.9

2.1 Humanitarian ground can be an important factor to get relief.

Relief on humanitarian ground is not metioned anywhere under Orient Penal Code or under
the Constitution of Republic of Orient, but the judge on analysing the facts and circumstances
of the case may do so, as he/she is having the discretion to do so, & there are many previous
judgements in which Supreme Court had kept humanitarian ground into consideration, while
delivering the judgement. Conditions which make them( Jury) believe regarding such issues
are like, the crime commited should not be of grevious nature & the criminal record must be
considered before sentencing.

In Neelima’ case, the Apex Court is aware of the fact, that the unborn child is innocent of the
wrong doing and ought not be subjected to the distressful conditions that inhere in detention.
Fatal rights have generally been part of discourse on abortion.

It was held in a case that , “it is the mother’s right to terminate her an unwanted pregnancy as
part of her constitutional right to privacy, yet it recognize other interests including that of the
state in protecting the life of fetus and of the mother.”10

9
Section 102 IEA, 1872
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MEMORIAL ON BEHALF OF THE RESPONDENT
This interest grew as the fetus developed and attend viability. Some stages set off to balance
the competing interest are: -

i) For the stage prior to approximately the end of her trimester, the abortion decision
and its effectuation must be left to the judgement of the attending physician of the
mother.
ii) For the stage subsequent to approximately the end of the first trimester, the state,
in promoting its’ interest in the help of her mother, may, if it choose, regulate the
abortion procedure in ways that are reasonably related to maternal health; and
iii) For the stage subsequent to viability, the state, in promoting of human life, may, if
it chooses, regulate, and even proscribe, abortion except where necessary, in
appropriate medical judgement, for preservation of life and health of the mother. It
is the State’s duty to protect the potential human I the fetus when it is considered
to be viable i.e., capable of survival outside of the mother’s body.11

The Indian Supreme Court has also adopted the Central Principle of Viability of a Fetus.12
There are sme recognized as the “Protection of Fetal Rights” in International Law.

‘Universal Declaration of Human Rights’ (UDHR) which was adopted by the UN General
Assembly on 10th December, 1948, in its very first preambular paragraph recognizes the
inherent dignity, equal and inalinable rights of all members of the human family, without any
of its affirmations being qualified by age or limited to the born.

The concern for an unborn child who is innocent of any wrong doing is also evidenced by
Art. 6 of the ‘International Covenan on Civil & Political Rights’(ICCPR). It states that,
“parties must recognize that every child has the inherent right to life, and parties shall ensure
the survival and development of the child to their maximim extent.” This puts a categorical
bar on the execution of pregnant women.

In keeping with the spirit of the UDHR and the declaration of the rights of the child 1959, the
‘Convention on the Rights of Child’ (CRC) was adopted on 20th November, 1989. There is a
clause:-

10
Roe v. Wade, 410 US. 113 1973
11
Planned Parenthood v. Casey, 505 US. 833 1992
12
Suchita Srivastava v. Chandigarh Administration Civil Appeal No. 5845 of 2009
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MEMORIAL ON BEHALF OF THE RESPONDENT
“Preamble- Bearing in mind that, as indicated in the declaration of the rights of the child, the
child, by reason of his physical and mental immunity, needs special safeguards and care,
including appropriate legal protection, before, as well as after birth.

It is true that no any specific humanitarian law exists but in the present case, Neelima is
pregnant and have 4 months unborn baby in her womb, and that unborn child sustains some
rights, and the International and Human Right norms are to be read into our fundamental
rights.13

Section 6 of the Limitation Act, 1963 talks about the rights of a minor and this word-‘minor’
includes a child in the womb also.14 Black’s Law Dictionary also refers to “the rights of
unborn child” which are well recognized in various legal contexts, like:-

A child who is in the womb at the time of death of an intestate, and is subsequently born alive
shall have the same right to inherit the intestate as if he/she had been born before the death of
the intestate, and the inheritance shall be deemed to vest in such a case with effect from the
date of the death of the intestate.15

The legal staus of an unborn child is also dicussed by Salmond in Jurisprudence as,

“Though the dead posses no legal personality, it is otherwise with the unborn. There is
nothing in law to prevent a baby from owning property before he/she is born. His/her
ownership is necessarly contingent, indeed, for he/she may never be born at all; but it is
nonetheless a real and present ownership.”16

In Oriental Insurance Corp. Ltd. V. Santhilal Patel & anr.17 it was held that, “The unborn
child to whom the live birth never comes is held to be a ‘person’ who can be the subject of an
action for damages of the death. The foetus is another life in woman and loss of foetus is
actually a loss of child.”

13
Vishakha v. State of Rajasthan (1997) 6 SCC 241
14
Indian Limitation Act, 1963; Sec.6
15
Sec. 20, Hindu Succession Act, 1956
16
Salmond, Jurisprudence, 11th Edition, pg. no. 354, 355
17
Oriental Insurance Corp. Ltd. V. Santhilal Patel & anr. 2007 (4) ALD 855
17
MEMORIAL ON BEHALF OF THE RESPONDENT
In R.D. Upadhyay v. State f A.P18, it was held that, “Child birth in prision should be avoided
as far as possible and measures of temporary parole including suspended sentence should be
made on the basis of humanitarian grounds.”

Hence, it is respectfully submitted that the underlying principle behind all these rulings,
guidelines and instruments, is for the welfare and safety of the foetus. The concern is that, the
foetus should receive the healthiest possible environment to develop and be born alive, and
thereafter, receive the best possible nurture and care, integral to which, is the mother’s mental
and physical health. It is not a mere concern for mother’s health. A pregnancy does makes a
woman physically vulnerable, but it’s not an illness, which calls only for the protection of her
own sake. The pre-dominant concern is thus for the unborn child, who is innocent of all
wrong doing and ought not be subjected to the distressful conditions that inhere in detention.

2.2 Suicidal note can’t lead towards a proper evidence.

Decision of conviction on the basis of a mere suicidal note would not be justified. Merely,
just because a person, who has committed suicide, has left a suicide note, one cannot jump
into a conclusion that it is enough to make the accused liable with criminal liability under
section 306 of OPC. One has to analyse and examine the contents of the suicide note to find
out whether it contains any incriminating information in the nature of instigation,
provocation, forcing the victim to commit suicide, and in the present case, no any proper
evidence was found during investigation which could support the charges framed against
them.

Justice A.H. Joshi of the Bombay H.C. delivered a Stark message that, “ There is no
mathematical equation, that a suicide note plus threat, equals abetment. If harassment had
happended, the petitioner has to show the proof.”

In a case Jutice P.B. Bajanthari(Punjab and Haryana H.C) held that “ a mere mention of a
person’s name in the suicide note can’t lead to the conviction of the accused.” and in Gulab
v. State of Maharashtra & ors19. it was held, “Mere mention of name in the suicide note
doesn’t make the named guilty of ‘abetment of suicide”, and in the present case, the fact

18
R.D. Upadhyay v. State f A.P (1998) 5 SCC 696
19
Gulab v. State of Maharashtra & ors. LQ 2014 HC 18852

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MEMORIAL ON BEHALF OF THE RESPONDENT
clearly shows that the respondent at no point of time instigated, goaded, incited or
encouraged the deceased with such an intention that he should commit suicide.

“If a lover commits suicide because of his love failure; if a student commits a suicide because
of his poor performance in the examination, a client commits suicide because his case has
been dismissed; so the girl, examiner, the lawyer respectively can’t be held for abetting them
to commit suicide even there names would have been mentioned in the suicide note. For the
wrong decision taken by a coward, fool, idiot or a man of week mentality, another person
cannot ber blamed as having abetted his commiting suicide.”

In providing justice to one party, it doesn’t mean that we will do unjustice with the other
party as it will be unfair with the other party. Here, “The court should not act as a mouthpiece
of the procecution.”20

Here, the matter is of simple nature where the deceased was of hypersensitive nature, who
failed to cope up with the hardships of life. Taking the totality of material on record, tone,
and tenor of the suicide note and, facts & circumstances of this case into consideration, it is
pleaded that the deceased, himself is responsible for his death.

20
Reena v. State (NCT of Delhi) 2020 SCC online Del 630

19
MEMORIAL ON BEHALF OF THE RESPONDENT
 PRAYER

It is hereinafter humbly prayed before this Hon’ble Supreme Court of Orient that in the light
of issue raised, argument advanced, authorities cited and pleadings made, the Hon’ble Court
may be pleased to adjudge and declare that:

1. The dismissal of the appeal by the High Court was justified.

2. The acquittal of all in other charges & reduction in the sentence of Neelima on humanitarian
ground was justified.

OR / OTHERWISE

PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY
DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE COUNSELS SHALL FOREVER PRAY.

Sd/-
(Counsel for the Petitioner)

20
MEMORIAL ON BEHALF OF THE RESPONDENT