1

2ND KIIT MOCK TRIAL ADVOCACY COMPETITION, 2016

BEFORE THE COURT OF SESSIONS

AT DAMAN, MIDAS

S.C. NO. OF……………..

STATE OF MIDAS

(PROSECUTION)

V.

MANISH MALHOTRA

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTIONS 186, 189, 441, 443, 444, 307 OF THE INDIAN PENAL CODE, 1860
AND SECTION 12 OF THE PREVENTION OF CORRUPTION ACT, 1988

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3-4

INDEX OF AUTHORITIES 5

STATEMENT OF 6
JURISDICTION

STATEMENT OF FACTS 6

STATEMENT OF CHARGES 8

SUMMARY OPF ARGUMENTS 9

ARGUMENTS ADVANCED 10-21

PRAYER 22

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LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defence Witness
Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
Mad Madras High Court
n. Foot Note no.
Ori Orissa High Court
p. Page No.
P&H Punjab and Haryana High Court
Pat Patna High Court
PW Prosecution Witness
Raj Rajasthan High Court
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v. Versus

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INDEX OF AUTHORITIES

 TABLE OF CASES:-

 Ah Choung v. Emperor, AIR 1932 Rang 21

 Anil Phukan v. State of Assam, AIR 1993 SC 1462
 Arjun Thakur v. State of Orissa, 1994 Cr LJ 3526 (Ori).
 Asha v. State of Rajasthan, AIR 1997 SC 2828
 Asharam v. State of M.P., (2007) 11 SCC 164: AIR 2007 SC 2594.
 Bakshish Singh v. State of Punjab, AIR 1971 SC 2016

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  Bala Krishna Ghose v. State, AIR 1957 Cal 385, 1957 Cr LJ 719
 Bansidhar v. Emperor, 43 Cr LJ 162 (Oudh)
 Deonandan Mishra v. State of Bihar, (1955) 2 SCR 750
 Fakir Chand v. Fakir, 23 Cr LJ 699
 Hanumant Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343.
 Harish Chandra Thange v. State of Maharashtra, AIR 2007 SC 2957
 Krishna Pillai v. State of Kerala, AIR 1981 SC 1237
 Madhuben v Thakarda Lakhaji Sendhaji, 1971 Cr LJ 1013
 Madhusundan Das v. Narayanbai, AIR 1983 SC 114
 Md. Sahabuddin v. Sayed Monomer Hussain, 1999 Cr LJ 349 (Gau).
 Nanhua v. Emperor, AIR 1938 All 108
 Narayan v. State of Karnataka, 1988 Cr LJ 1549 (Kant)
 Padam Sen and Anr. v. State, AIR (1959) All 707
 Phudki v. State, AIR 1955 All 104, p 105.
 Prem Bahadur, 1978 Cr LJ 945 (Sikkim)
 Raju v. State of Rajasthan, 2002 All LJ 1720 (Raj).
 State of Bihar v. Ramanand Singh, (1966) BLJR 300
 State of Maharashtra v. Balaram Bama Patil, 1983 Cr LJ 331 (SC)
 State v. Babulal Gaurishankar Misra, AIR 1957 Bom 10, p12, (1957) Cr LJ 48
 Sumersimbh Umedsingh Rajput v. State of Gujarat, (2007) 13 SCC 83.
 Tota Singh v. State of Punjab, AIR 1987 SC 1083

 BOOKS REFERRED

 INDIAN PENAL CODE, RATANLAL AND DHEERAJLAL

 CODE OF CRIMINAL PROCEDURE, RATANLAL AND DHEERAJ LAL
 LAW OF EVIDENCE, BATUKLAL’S
 ANTICORRUPTION LAWS IN INDIA, REDDI’S
 CRIMINAL TRIAL AND INVESTIGATION, BANNERJEE

LEXICONS

1. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
2. http://www.scconline.com
3. http://www.westlaw.org

 STATUTES

 The Indian Penal Code, 1860

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 The Criminal Procedure Code, 1973

 The Prevention of Corruption Act, 1988.

THE STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under S.209 read with S. 177 and S. 195(1) (a) of
the Criminal Procedure Code, 1973.

‘ 209. Commitment of case to Court of Session when offence is triable exclusively by it- When in a case
instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

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

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the
conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced
in evidence;

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

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Read with S. 177

‘177. Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired into and tried by a
Court within whose local jurisdiction it was committed’.

Read with S. 195 (1) (a)

‘195. Prosecution for contempt of lawful authority of public servants, for offences against public justice
and for offences relating to documents given in evidence.

(1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both
inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public
servant concerned or of some other public servant to whom he is administratively subordinate’.

THE STATEMENT OF FACTS

 The present case relates to the district of Daman in the State of Midas of Bharat. The DPO (Mr.
Shubham Singh) and the CMO made a deal in favour of M/S Health Tech whose director was Mr.
Manish Malhotra. The deal was in pursuance of the Center’s mission named Bhartian Rural Health
Mission in which DPO and CMO of different districts were empowered to invite offers for
procurement of medicines, operation tool kits, and other disease scanning devices. However, the
purchasing order was not issued in their favour as their sample products were sub-standard. After
certain adjustments were made and writ petitions decided by the Courts, the government approved the
products of the aforesaid firm. However, the procedure takes time and several trials have to take place
and only after that the purchasing order can be issued.

 The chain of events which led Mr. Shubham Singh (DPO) to lodge an FIR against Mr. Manish
Malhotra( Director of M/S Health Tech) are as follows:-
1. On 15.08.2014 Manish Malhotra with his colleague Hermit Tagore came to the office of Shubham
Singh and asked to issue the purchasing order in an agitated manner as well as he shouted at him

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saying that “I will kill you”. And further added that if he doesn’t issue the purchasing order by 4:00
pm then he and his family will have to face the consequences.
2. Manish Malhotra told him to meet at 10:00 am on 16.08.2014 at the back of the DPO’s office, if he
changes his mind and also to bring a box of Mandiram sweets in which Manish Malhotra will give
him the money.
3. At 7:00 pm Shubham Singh came back to his house and his wife told him that someone broke into
the house and tried to kill her. She also told him that the person said to her after firing bullets that
she should tell her husband i.e. Shubham Singh, that if he wants his family safe then he should
accept their offer and meet them tomorrow at the notified place.

 After the FIR was lodged due to the chain of events mentioned above, a trap was laid on 16.08.2014
by the police and Manish Malhotra was thereafter arrested. On 17.04.2015 a charge sheet was filed
against the accused Manish Malhotra. On 28.06.2015, the accused appeared before the Court and
pleaded not guilty.

THE STATEMENT OF CHARGES

Mr. Manish Malhotra (Director of M/S Health Tech) has been charged under:

CHARGE 1:- S. 186 of the Indian Penal Code, 1860 for obstructing the public servant in discharge of public
functions.

CHARGE 2:- S. 189 of the Indian Penal Code, 1860 for threat to injury to a public servant.

CHARGE 3:- S. 441 read with S.447 of the Indian Penal Code, 1860 for criminal trespass.

CHARGE 4:- S. 443 read with S.453 of the Indian Penal Code, 1860 for lurking house-trespass

CHARGE 5:- S. 444 read with S.456 of the Indian Penal Code, 1860 for lurking house-trespass by night

CHARGE 6:- S. 307 of the Indian Penal Code, 1860 for attempt to murder.

CHARGE 7:- S. 12 of the Prevention of Corruption Act, 1988 for punishment of abetment offences

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SUMMARY OF ARGUMENTS

ISSUE 1

Whether the accused is guilty of voluntarily obstructing and threatening to injure the public servant in
discharge of public functions?

It is humbly submitted before this Hon’ble Court that the accused, Mr. Manish Malhotra is guilty of
voluntarily obstructing and threatening to injure the DPO, who is a public servant because he met him in his
office on 15.08.2014 and showed violence for not issuing the purchasing order even after the relevant
explanation given by the DPO. He also threatened to injure him and his family and offered him money in
return of issue of the purchasing order. His words of mouth prevented the DPO to carry out his function,
which was the proper trial of the products, in a proper manner. Thus all the elements of S. 186 and S. 189 can
be fulfilled to make him guilty of these two offences under IPC respectively.
ISSUE 2

Whether the criminal trespass coupled with S.443 and S.444 amounted to attempt to murder?

It is humbly submitted before this Hon’ble Court that the accused is guilty of entering into the house of the
DPO with an intent to commit murder which, however, didn’t amount to murder but can be constituted as an

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attempt to murder the wife of the DPO under S. 307 and the intention is proved by res gestea. The chain of
events and circumstantial evidence clearly suggests that the accused is guilty of the offence under S.441
coupled with S. 443 and S. 444 i.e. lurking house-trespass and lurking house-trespass by night respectively
because the wife had the right to exclude or reject the accused from the house thus making him guilty under
these sections. In addition to this the happenings took place at 6:30 pm thus it automatically makes him guilty
under S.444.

ISSUE 3

Whether the accused is guilty under S. 12 of the Prevention of Corruption Act, 1989?

It is humbly submitted before this Hon’ble Court that the accused offered bribe to a public servant that is DPO
in this case which clearly means that he intended to make abetment of offence under S.7 of the Act. As well as
the trap which was carried out by the DSP on 16.08.2014 caught the accused red-handed with the Mandiram
sweets box along with the money. Hence, he is guilty under the offence of S.12 of the Act.

ARGUMENTS ADVANCED

ISSUE 1

Whether the accused is guilty of voluntarily obstructing and threatening to injure the public servant in
discharge of public functions?

It is humbly contended that Mr. Manish Malhotra (hereinafter referred to as the ‘accused’) is guilty of
offences under S. 186 and S. 189 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).

Furthermore, the Prosecution humbly submits that the confessional statement made by Mr. Shubham Singh
(hereinafter referred to as ‘DPO’) under S. 161 of Cr. Pc is corroborated in all material aspects
notwithstanding any discrepancies in the witness statements and the confession. In addition to this, according
to Section 118 of the Indian Evidence Act, 1872, the DPO is a competent witness as well as for the reference
in further issues the statements made by the prosecution witnesses are all competent witnesses.

In this case, the DPO is an interested witness i.e. a person who wants to see the accused convicted because of
his own animus or otherwise.1 However, it is well established that because a witness is an interested witness,

1 Tota Singh v. State of Punjab, AIR 1987 SC 1083

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his evidence cannot be totally disregarded in toto.2 Eye-witnesses, being friends of the victim, cannot be
discredited for that reason alone.3 Provided, there is no such rule which says that conviction cannot be based
on testimony of only one eye-witness if his testimony has passed the test of veracity. Where the only one eye-
witness is fully reliable there is no difficulty for the court to base conviction on his testimony alone.4

Section 186 of the IPC states-

186. Obstructing public servant in discharge of public functions-

Whoever voluntarily obstructs any public functions, shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with
both.

The ingredients5 of an offence under S.186 are as follows:-

(i) there must be an obstruction;

(ii) the obstruction must be by the accused;
(iii) the obstruction must be voluntary;
(iv) the obstruction must be of a public servant;
(v) the obstruction must be in the discharge of his (i.e., the public servant’s) public functions.

1.1 There must be an obstruction

It has been observed in a case6 of Allahabad High Court that the word ‘obstruction’ connotes some overt act in
the nature of violence or a show of violence; it connotes some positive act, which would deter the man
obstructed from carrying out his intentions.

In this particular case the accused met DPO in his office on 15.08.2014 and showed violence by saying “I
will kill you Mr. DPO, you don't know who are you messing with. I want my grant money as soon as possible

2 Madhusundan Das v. Narayanbai, AIR 1983 SC 114, Krishna Pillai v. State of Kerala, AIR 1981 SC 1237

3 Asha v. State of Rajasthan, AIR 1997 SC 2828

4 Anil Phukan v. State of Assam, AIR 1993 SC 1462

5 RA Nelson, Indian Penal Code, SK Sarvaria (ed.), 2, 10th edn. , 2008.

6 Phudki v. State AIR 1955 All 104, p 105.

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and if you don't issue the purchase order by 4:00 PM today then you and your family will face the
consequences. However, even after that if you change your mind just meet us at the back of your office
building at 10:00 AM tomorrow i.e. 16.08.2014. Bring with you an empty box of Mandiram sweets in which
we will give you the money.” All these statements made by the accused connotes an overt act of showing
violence which eventually obstructed the DPO to issue the purchasing order by proper means i.e., several
trials of the products after which only the purchasing order can be issued.

Mere show of violence can also be constituted as an obstruction. In some cases it has been held that the word
‘obstruction’ in this section does not mean ‘physical obstruction’ and it is not necessary that there should be
physical or criminal force, and that it is sufficient if there is either a show of force or a threat or any act
preventing the discharge of his public function by a public servant. 7 An obstruction to a public servant can be
caused even by words of mouth.8

Thus, the accused created obstruction within the meaning of S.186 of IPC.

1.2 The obstruction must be voluntary

To constitute the offence under this section, the obstruction must be intentional and it must be direct. 9 If in
causing the obstruction the accused acts intentionally, the means employed by him to cause the effect
intended, do not matter.10

In the present case as well the obstruction was intentional since the accused clearly said that if DPO do not
comply to issue the purchasing order he and his family will have to face the consequences, clearly creating
voluntary obstruction to him.

The gist of the offence, thus lies in the intention of the accused to interfere with or prevent the public servant’s
discharge of his official function. The real question is whether the action or attitude of the persons alleged to

7 State v. Babulal Gaurishankar Misra AIR 1957 Bom 10, p12, (1957) Cr LJ 48, (1957) ILR Bom 80, 58 Bom
LR 1621.

8 State of Bihar v. Ramanand Singh (1966) BLJR 300.

9 UBR (1897-1901), Vol I, pp. 266, 267

10 Nanhua v. Emperor AIR 1938 All 108

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have obstructed a public servant in the performance of his public functions was of such a nature so as to
obstruct, that is to say, prevent him from carrying out the duties which he had to discharge. This particular
question is truly answered by the fact that the attitude of the accused was violent in nature and was
threatening.

A protest can’t be considered as an obstruction but a strongly worded protest, verging on a threat would be an
obstruction within the meaning of this section, if there appears to be at least a likelihood of the threat being
immediately carried out.11

The statement of the accused that by 4:00 pm the DPO has to issue the purchasing order otherwise he and his
family will have to face the consequences is a statement which has a likelihood of threat being immediately
carried out and thus it can’t be merely called as a protest.

1.3 The obstruction must be of a public servant

By description twelfth (a) of section 21 of the IPC which states that “every person in the service or pay of the
Government or remunerated by fees or commission for the performance of any public duty by the Government
is a public servant”, which undoubtedly implies that the DPO is a public servant.

1.4 The obstruction must be in the discharge of his public functions

The public functions contemplated by this section mean legal or legitimately authorised public functions. In
the present case DPO and CMO of each district were empowered and authorised to procure the medical
devices and operational tool kits. After certain adjustments were made and writ petitions decided by the
Courts the government approved the products of the M/S Health Tech whose director was the accused. Even

11 Ah Choung v. Emperor AIR 1932 Rang 21

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after approval there were certain trials which had to be conducted which further could initiate the issue of the
purchasing order but these trials and the procedure was infuriatingly denied by the accused and thus he
obstructed the DPO while he was to discharge his public functions. Therefore the accused is guilty of
obstructing the public servant in the discharge of his public functions.

Since all the ingredients are fulfilled, thus the accused is guilty under S. 186 of the IPC.

1.5 Threat to Injury to a Public Servant under S. 189 of the IPC

To establish an offence under this section it must be proved that:

(i) the accused held out a threat;

(ii) the threat was directed against a public servant or a person, in whom the accused believed the
public servant to be interested
(iii) the threat was of injury; and
(iv) the object of the threat was to induce the public servant to do or forbear, or delay doing, an act
connected with the exercise of his public functions.

In order to sustain a conviction under this section, there must be a threat of injury to either the public servant
or to anyone in whom the accused believes that, public servant to be interested. In addition to this the word
‘injury’ has been defined in S.44 of IPC as denoting any harm whatever, illegally caused to any person in
body, mind, reputation or property.12

First condition and third condition is fulfilled since he shouted at him saying “I will kill you.” which clearly
comes under the ambit of injury to body. He also added that his family will have to face the consequences
which confirms that the threat was given to the public servant i.e., DPO as well as his family in which the
DPO is impliedly interested, hence fulfilling the second condition. And the object was also to induce to issue
the purchasing order fulfilling the last condition to prove the commission of this offence. Therefore, the
accused is guilty of section 149 of the IPC.

12 Mulai Rai v. Emperor AIR 1926 All 277, 278 All LJ 210.

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ISSUE 2

Whether the criminal trespass coupled with S.443 and S.444 amounted to attempt to murder?

Under section 441 of the IPC criminal trespass is defined as follows:-

441. Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to
commit an offence or to intimidate, insult or annoy any person in possession of such property, is said to
commit ‘criminal trespass’.

The punishment for criminal trespass is stated under S. 447 of the IPC which mentions that whoever commits
criminal trespass shall be punished with imprisonment of either description for a term which may extend to
five hundred rupees, or with both.

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The present case explains the ‘unlawful entry’ in the house of DPO by the accused with the intent to commit
an offence i.e., attempt to murder under S. 307 of the IPC which will be further discussed in the later part of
this issue.[1.2]

1.1 Intention is sine qua non.

In the absence of any evidence of any criminal intent on the part of accused, no offence of criminal trespass
can be held to have been made out against the accused.13

Here in this case, the chain of events and circumstantial evidence [1.1.1] clearly suggests that the accused is
guilty for criminal trespass. The accused went into the office of DPO and threatened to injure him and his
family if the purchasing order was not issued by 4:00 pm. When the DPO came back to the house at 7:00 pm,
his wife told her that gunshots were shot against her but she somehow managed to survive by locking herself
in a room. She further added that the person also gave the same warning to her about him, which was also
given by the accused at the time when he was in the office of the DPO.

Through these incidents it is evident that the accused before entering the house of the DPO had clear intention
to kill the wife in whom the DPO had vested interest as he would not like his family affected through all this.
This was the intention of the accused to make the DPO realize that it is necessary to issue the purchasing
order otherwise consequences will be there for him as well as for his family.

In a case14 it was also held that the court has to look to the state of the mind of the accused and see whether his
conduct was such as to lead to the inevitable conclusion that he acted with one or other of the intents specified
in s. 441. It is necessary for the court to be satisfied that causing such annoyance, intimidation or insult was
the aim of the entry. There is distinction between knowledge and intention, and that distinction must be kept
with the requisite intention. Therefore, to bring a case within S. 441, the intention being the essential
ingredient,15 it must be proved before a conviction is recorded under S.447. Through the chain of events and
the circumstantial evidence it is proved that the accused was the one who had the clear intention to commit an
offence (S.307), therefore he is guilty under S. 441 for criminal trespass and should be made punishable
according to S. 447.

13 Md. Sahabuddin v. Sayed Monomer Hussain 1999 Cr LJ 349 (Gau).

14 Bala Krishna Ghose v. State, AIR 1957 Cal 385, 1957 Cr LJ 719

15 Madhuben v Thakarda Lakhaji Sendhaji, 1971 Cr LJ 1013

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1.1.1 Circumstantial evidence

Circumstantial evidence is that which relates to a series of other facts than the fact in issue: but by experience
have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory
conclusion.

Here the fact in issue is that when the DPO came back to his house the accused fired the gunshots and tried to
kill the wife of the DPO and the fact which relates to the fact in issue was that the accused shouted at the DPO
and said that he will kill him and his family will have to face the consequences if the purchasing order is not
issued by him by 4:00 pm.

It is humbly submitted before this Hon’ble court that the circumstantial evidence in the instant matter shows
that within all human probability, the act must have been done by the accused. 16 A conviction is possible on
circumstantial evidence if it forms a chain of evidence so complete as not to leave any reasonable doubt for a
conclusion consistent with the innocence of the accused17

According to the statement given by the wife of the DPO which is corroborated in all material aspects has also
stated that the same warning was being given to her which was given at the DPO office, thus within all human
probability, the circumstantial evidence in the instant matter shows that the act must have been done by the
accused and there is no reasonable doubt as the chain of evidence is complete.

Furthermore, the final report18 and Panchnama19 also mentions that 9 mm empty bullets were recovered from
the house of the DPO which can be the evidence for the accused to make guilty of the offence of criminal
trespass and attempt to murder. When the direct evidence is well corroborated by the circumstantial evidence
and conforms to the probabilities, there is no reason why it should not be accepted.20

1.2 To commit an offence

16 Hanumant Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343.

17 Deonandan Mishra v. State of Bihar, (1955) 2 SCR 750; Harish Chandra Thange v. State of Maharashtra,
AIR 2007 SC 2957

18 Case Details, p.32

19 Case Details, p.43

20 Bakshish Singh v. State of Punjab, AIR 1971 SC 2016

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It must be established that the entry was with the requisite intention21 to commit an offence.

In the present case, the accused came with an intention to kill the wife by aiming bullets at her according to
the statement mentioned by the wife. Somehow she survived by locking herself into a room. Thus, the accused
came with an intent to murder the wife but he couldn’t that is why the accused is charged under S. 307 i.e.,
attempt to murder which has also fulfilled one of the most important ingredients of criminal trespass which is
the intent to commit an offence. Thus, fulfilling all the necessary elements of criminal trespass, the accused is
guilty of S.441 of the IPC.

1.3 Possession not necessary of the Complainant

It is not necessary that the complainant should be present at the time of the commission of criminal trespass.
The complainant can be in possession through his wife, servant, agent, licensee or other person, i.e., a tenant.22

In Mahadeo v. Emperor, it was held that the trespass can be committed if the intent is to annoy a person who
is in possession of the property through his tenants.

Where a person enters upon property in the possession of a tenant with intent to commit an offence or to
intimidate, insult, or annoy that tenant, he is guilty of the offence of criminal trespass, and a complaint by the
landlord is sufficient to set the law in motion just as much as a complaint by the tenant.23

1.4 Criminal trespass coupled with S. 443 and S. 444

Section 443 and 444 i.e., lurking house-trespass and lurking house-trespass by night are one of the aggravated
forms of criminal trespass.

Section 443 states as follows-

21 Luxman, (1902) 4 Bom LR 280.

22 Bansidhar v. Emperor 43 Cr LJ 162 (Oudh)

23 Fakir Chand v. Fakir 23 Cr LJ 699

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443. Lurking house-trespass. - Whoever commits house-trespass having taken precautions to conceal such
house-trespass from some person who has right to exclude or reject the trespasser from the building, tent or
vessel which is the subject of the trespass, is said to commit ‘lurking house-trespass’.

But house-trespass is defined under Section 442 which states that “Whoever commits criminal trespass by
entering into or remaining in any building, tent or vessel used as human dwelling or any building, used as a
place for worship, or as a place for the custody of property, is said to commit ‘house-trespass’.”

Since accused is guilty of criminal trespass of the house of DPO, which includes under the definition of a
building as a house dwelling, therefore house-trespass is clearly committed by the accused in this case
fulfilling all the necessary aspects. But this a more specific case which extracts the section 443 because in the
present case the accused committed house-trespass by virtue of the wife who had the right to exclude or reject
the accused from the house as well as the accused entered the house without showing his presence and fired
gunshots immediately at the wife. Therefore the accused is guilty under S. 443 of the IPC.

Section 444 states that-

444. Lurking house-trespass by night- Whoever commits lurking house-trespass after sunset and before
sunrise, is said to commit ‘lurking house-trespass by night’.

Since the DPO came back to his house at 7:00 pm, then her wife told her about the incident which took place
around 6:30 pm, which automatically becomes lurking house-trespass by night because it was committed after
sunset and before sunrise.24

1.5 Attempt to murder

307. Attempt to Murder- Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by the that act caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine,

24 Prem Bahadur, 1978 Cr LJ 945 (Sikkim)

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and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or
to such punishment as in hereinbefore mentioned.

It is submitted to this Hon’ble Court that in a charge of attempt to murder, the testimony of the injured alone
was held to be sufficient to prove the guilt of the accused. 25 Here, the wife was the sole witness of her attack
though she couldn’t see the face of the accused but heard the accused saying the same words which he spoke
to the DPO at the time of the meeting with him. Thus her being the sole witness will not bar the court to make
a conviction against him.

This particular section doesn’t require the execution of the purpose but little short of a complete execution, the
consummation being hindered by circumstances independent of the will of the accused 26. The act or omission,
although it does not cause death, is carried to such a length as, at the time of carrying to that length, the
offender considers sufficient to cause death.27

To bring a case within the ambit of s. 307, the prosecution has to make out the facts and circumstances
envisaged by s. 300. If the ingredients of s. 300 are wholly lacking, there can be no conviction under s. 307. 28
The ingredients of the section are (1) intention or knowledge relating to commission of murder; and (2) the
doing of an act towards it.29

In the present case itself, the two ingredients are fulfilled. The first point which refers to the intention relating
to commission of murder can be clearly drawn from the circumstances explained by the wife. As she said that
“I was making tea in the evening when one person armed with a knife and a revolver came into our house and
fired several rounds at me. I was very scared and ran around the house to save my life. I finally went into our
bedroom and locked it from inside. The person then stopped firing and warned me in a loud voice that I
should tell my husband, that if he wants us safe then he should accept their offer and meet them at the notified
place tomorrow.” Her statement implies that there was clear intention of the accused to kill her wife

25 2003 All LJ 1404; Raju v. State of Rajasthan, 2002 All LJ 1720 (Raj).

26 Ratanlal and Dhirajlal, The Indian Penal Code, 33rd edn. 2010.

27 Asharam v. State of M.P., (2007) 11 SCC 164: AIR 2007 SC 2594.

28 Arjun Thakur v. State of Orissa, 1994 Cr LJ 3526 (Ori).

29 Sumersimbh Umedsingh Rajput v. State of Gujarat, (2007) 13 SCC 83.

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1.5.1 Intention may be proved by res gestea.

As well as it was pre-planned because the accused threatened the DPO at his office before this happening,
thus the intention can also be proved by res gestea because intent which is a state of mind cannot be proved
by precise direct evidence, as a fact it can only be detected or inferred from other factors. The intention may
be proved by res gestea, by acts or events, previous or subsequent to the incident or occurrence. 30 Thus the act
from which the fact in issue can be derived is that he threatened the DPO at his office as well as his words of
mouth were the same as the one he told to his wife while she locked herself into her bedroom.

1.5.2 Attempt

Attempt is an intentional preparatory action which fails in its object-which so fails through circumstances
independent of the person who seeks its accomplishment.31 The mere use of lethal weapon is sufficient to
invoke the provisions of S. 307.32 Hence, the firing of pistol by the accused at the wife of the DPO and the
bullet of 9mm was also recovered from the house of the DPO clearly suggests that there was an attempt to
murder.

1.5.3 Whether act committed must be capable of causing death.

The Supreme Court decision in Balram’s case33 said that to convict under this section it is not necessary to
show that bodily injury capable of causing death was inflicted. What the court has to see is whether the act,
irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this
section. Repeating the same thing in Hari Singh34 the Supreme Court added that “the intention or knowledge
of the accused must be such as is necessary to continue murder. Without this ingredient being established
there can be no offence attempt to murder…. The intention is to be gathered from all the circumstances, and
not merely from the consequence that ensue. Since no injury was inflicted to the wife of the DPO as she

30 RA Nelson, Indian Penal Code, SK Sarvaria (ed.), 2, 10th edn. , 2008.

31 Luxman, (1899) 2 Bom LR 286.

32 Narayan v. State of Karnataka, 1988 Cr LJ 1549 (Kant)

33 State of Maharashtra v. Balaram Bama Patil, 1983 Cr LJ 331 (SC); See also R. Deb: Principles of
Criminology, Criminal Law and Investigation, Vol II, 2nd Edn, pp. 617-620.

34 (1998) 4 SCC 551: AIR 1988 SC 2127.

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locked herself into a room but still the intention was to injure her, proved by res gestea and the circumstances
mentioned above. Hence, the accused should be convicted under S.307.

ISSUE 3

Whether the accused is guilty under S.12 of the Prevention of Corruption Act, 1989?

12. Punishment for abetment of offences defined in Section 7 or 11. - Whoever abets any offence
punishable under section 7 or section 11 whether or not that offence is committed in consequence of that
abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which
may extend to five years and shall also be liable to fine.

In the present case the abetment of only S.7 is applicable. S.7 explains about public servant taking
gratification other than legal remuneration in respect of an official act.

Whereas, under S.12, the offering of a bribe or a valuable thing to a public servant without consideration or
for an inadequate consideration is an offence by itself and not merely an offence of abetment. Here, the
inadequate consideration which the accused wanted to acquire in return of the bribe was the purchasing order
to be issued which in a proper manner can only be issued if certain trials are conducted before issuing of the
purchasing order by the DPO. But in this case, the accused nevertheless wanted his purchasing order and
instigated the DPO to issue it otherwise he and his family will have to face the consequences. The accused
also told him to meet at the back of the DPO office with an empty box of Mandiram sweets in which the
accused will give him the money on 16.08.2014.

The relevant point to consider is the state of mind of the accused when he offers a bribe or a valuable thing.
As soon as there is an instigation to a public servant to commit an offence under Section7, an offence under
Section 12 is complete quite irrespective of the fact whether the public servant did not accept or consent to
accept the money or whether he was or he was not a position to do the act or to show a favour or disfavor. 35
The accused was caught red-handed with the money by the investigating officer and the DSP through a trap
which was laid down on 16.08.2014. As well as the final report and Panchnama mentions the droplets
containing the pink solution of Phenolphthalein taken from the finger of the accused, the solution jar that
turned pink and the photographs of Mr. Manish Malhotra's hands. Hence, the accused is guilty of the offence
under this section fulfilling the ingredients of abetting the offence of S.7.

35 Padam Sen and Anr. v. State, AIR (1959) All 707

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble Court be
pleased to:

1. Convict Mr. Manish Malhotra for the offences under S. 186, 189, 441, 443, 444, 307 of the Indian Penal
Code, 1860 and S. 12 of the Prevention of Corruption Act, 1988.

2. Declare a sentence of rigorous imprisonment for a term which may extend to ten years, and also be liable to
fine under Section 307 of the Indian Penal Code, 1860.

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: Midas S/d_____________

PUBLIC PROSECUTOR

MEMORANDUM ON BEHALF OF THE PROSECUTION