TEAM CODE:

IN THE DISTRICT AND SESSIONS COURT OF DELHI

AT DELHI

STATE OF DELHI
(Prosecution)

v.
REKHA DAS AND ORS
(Defendant)

On Submission to the
IN THE DISTRICT AND SESSION COURT OF DELHI
AT DELHI

MEMORIAL ON BEHALF OF DEFENCE

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MEMORIAL ON BEHALF OF THE DEFENCE
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS .......................................................................................... 3

INDEX OF AUTHORITES ............................................................................................. 4
STATEMENT OF JURISDICTION................................................................................. 10
STATEMENT OF FACTS ............................................................................................... 11
STATEMENT OF CHARGES......................................................................................... 13
ISSUES RAISED ............................................................................................................ 14
SUMMARY OF ARGUMENTS ..................................................................................... 15
ARGUMENTS ADVANCED .......................................................................................... 16
PRAYER......................................................................................................................... 32

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MEMORIAL ON BEHALF OF THE DEFENCE
 TABLE OF ABBREVATION

ABBREVIATIONS WORDS
AIR All India Reporter
ANR ANOTHER
App. Application
C.J. Chief Justice
IPC Indian Penal Code
No. Number
p. Page
Edn. Edition
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Review
Vs. Versus
Vol. Volume
ORS Others
& And
M.P Madhya Pradesh
U.P Uttar Pradesh
Sec Section

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MEMORIAL ON BEHALF OF THE DEFENCE
 INDEX OF AUTHORITIES

1. Ram Saran Mahto and Anr. Vs. The State of Bihar MANU/SC/0550/1999

2. Earabhadrappa alias Krishnappa v. State of Karnataka 1983 Cri LJ 846

3. Vijaya v State of Maharashtra (2003) 8 SCC 296

4. Mehboob Ali and Ors. Vs. State of Rajasthan MANU/SC/1228/2015

5. Mohmed Inavatullah v. The State of Maharashtra MANU/SC/0166/1975

6. State of UP. v Deoman Upadhyaya AIR 1960 SC 1129

7. Prabhu Kulandaivelu vs State MANU/SCOR/15487/2015

8. Md. Sharif v. State of Orissa 1996 Crl.L.J. 2826

9. Dr. Nisha Malviya And Anr. vs State Of M.P 2000 CriLJ 671

10. Satpal Singh v. State of Haryana 2010 Cri.L.J.4283

11. Anil Kumar vs. State of Delhi 2011 (5) AD (Delhi) 351

12. Sheo Shankar Singh v. State of Jharkhand and Anr (2011) 3 SCC 654

13. State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600

14. Vishal Yadav vs. State Of U.P Crl.A.Nos.741, 910/2008 & 145/2012

15. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567

16. Amit singh Bhikamsingh Thakur v. State of Maharashtra (2007) 2 SCC 310

17. Hardip Singh And Others vs State Of Punjab CRA-S-1226-SB-2000 (O&M)

18. Tondi and Ors. v. The State of U.P. 1975 Cr. L.J. 950

19. Friday Vs. Sajeev CRL.A.No. 2165 of 2007

20. Mahavir And Anr. vs State Of U.P. 1990 CriLJ 1605

21. Upendra Nath Ghose v. Emperor AIR 1940 Cal 561

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MEMORIAL ON BEHALF OF THE DEFENCE
22. State of U.P. v. Ashok Kumar Srivastava AIR 1992 SC 840

23. Esher Singh v. State Of Andhra Pradesh 2004 (4) ALT 2

24. State v. Navjot Sandhu 2005 Cri LJ 3950(SC)

25. Mohammad Usman Mohammad HussainManiyar&Ors v. State Of Maharashtra 1981

AIR 1062

26. State of U.P. v. Girijashankar Misra AIR 1985 SC 439

27. Subhas v. State of U.P, 1985 CrLJ 1807

28. Trimukh Marothi Kirkan v. State of Maharashtra, (2007) 1 SCC Crl 80

29. Ram Narain Poply v. C.B.I AIR 2003 SC 2748

30. Arun Bhakta Thulu v. State of West Bengal CRIMINAL APPEAL NO. 1969 OF 2008

31. Mohammed Ajmal Mohammad Amir Kasab Abu Mujahid v. State of Maharashtra
MANU/SC/0792/2015

32. State of Maharashtra Vs. Fahim Harshad Mohammad Yusuf Ansari and Anr AIR 2012
SC3565

33. Radhakant Yadav Vs. Union of India (UOI) and Ors Criminal Appeal Nos. 1247 and
1248 of 2012

34. Reg. v. Cruse, 1838 C&P 541

35. Parichhat v. State Of Madhya Pradesh, 1972 Cr LJ 322(SC)

36. Nayab Singh v. State of Rajasthan 2007 (3) Raj 2077

37. State v Dinakar Bandu (1969) 72 Bom LR 905

38. Sukhram v. State of Maharashtra AIR 2007 SC 3050

39. Son Lal v. State of Uttar Pradesh, A.I.R. 1978 SC 1142

40. Nika Ram v. State of Himachal Pradesh 1972 CrLJ 1317

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MEMORIAL ON BEHALF OF THE DEFENCE
41. Mangal Singh v. State of Punjab, 1996 CrLJ 3258, 3262 (P&H)

42. Ranganayaki v. State by Inspector of Police, AIR 2005 SC 418

43. Naseem Ahmed v. Delhi Administration, AIR 1974 SC 691

44. Sharad Birdhich and Sarda v. State of Maharashtra, AIR 1984 SC 1622

45. Palaniswamy v. State, AIR 1968 Bom 127

46. Suresh Vs. State of Rajasthan MANU/RH/0469/2008

47. Bhoori Singh Vs. State of Rajasthan MANU/RH/0265/2008

48. Ummed Singh Vs. State of Rajasthan MANU/RH/0168/2003

49. Vishnu Dutt Sharma Vs. Respondent: State MANU/RH/0385/2006

50. Khim Singh Vs. State of Uttarakhand MANU/SC/0592/2014

51. Kalu Singh Vs. State of Rajasthan MANU/RH/0474/2004

52. Ram Kishan and Ors. Vs. State and Ors MANU/DE/1191/2015

53. MO Shamshudin v State of Kerala, (1995)3 SCC 351

54. State of Kerala v Thomas, (1986) 2 SCC 411

55. Rameshwar v State of Rajasthan, AIR 1952 SC 54

56. Nizam V. State of Rajasthan & Ors MANU//SC/0964/2015

57. State of Karnataka v Madesha and Ors, MANU/SC/7745/2007.

58. Palvinder Kaur v. The State of Punjab, MANU/SC/0038/1952.
59. Indra Dalal Vs. State of Haryana, MANU/SC/0661/2015.
60. Salim Vs. State of Kerala, MANU/KE/1324/2012.
61. Esher Singh v. State Of Andhra Pradesh, 2004 (4) ALT 28; HALSBURY’S LAW OF
ENGLAND 44(Lord Hailshameds, 4thed 1987).
62. State v. Navjot Sandhu, 2005 Cri LJ 3950(SC).
63. State of Tamil Nadu v. Jayalalitha, (2000) 5 SCC 440.
64. Vijay Kumar v. State, 2014(4) JCC 2494.
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MEMORIAL ON BEHALF OF THE DEFENCE
 65. Police v. Narender Singh, AIR 2006 SC 1800.
66. Reg. v. Cruse, 1838 C&P 541.
67. Parichhat v. State Of Madhya Pradesh, 1972 Cr LJ 322(SC).
68. Sheoram Singh v. State of Uttar Pradesh, AIR 1972 SC 2555.
69. Wasim Khan v. State of Uttar Pradesh, AIR 1956 SC400.
70. Gangaram Kondiba Ingle v. State Of Maharashtra, 2000 Cr.Lj 336 (Bom).
71. Kedar Nath v. State of Madhya Pradesh, (1991) Cr Lj 989(SC).

72. Lakshmi and Ors. v. State of U.P. , MANU/SC/0715/2002.

73. State of Bihar v. Raj Kumar Mahto, 2006 Cr.Lj 4666.
74. Haricharan Kurmi v. State Of Bihar, AIR 1964 SC 1184.
75. State of Manipur v. Okram Jitan Singh, 2005 Cr LJ 1646.
76. Arvind v. State (Delhi Admn.), 1999(4) SCC 4861.
77. Kailash Gour and Ors. v. State Of Assam, MANU/SC/1505/2011.
78. Selvi v. State Of Karnataka, Criminal Appeal No. 1267 of 2004
79. Mousam Singh Roy v. State of West Bengal, 2004 3 SCC 753.
80. Raghunath v. State of Haryana, AIR 2003 SC 165.
81. Madhari v. State of Chattisgarh, 2002 Cr LJ 2630 (SC).
82. Ramakant Rai v. Madan Rai, Cr.Lj 2004 SC 36.
83. State of Maharashtra through CBI vs. Ahmad Shah Khan and Anr., Criminal Appeal
No. 1438 of 2013
84. V.C. Rao v. Ponna Satyanarayana, AIR 2000 SC 2138
85. The Superintendent Central ... vs Shri Suresh Mulchand Seth, 2008 (110) Bom L R
361

86. Chandubhai Abhesingbhai Chauhan vs State, Criminal Appeal No. 2238 of 2008

87. State Of Assam vs Anupam Das, 2008 CriLJ 1276

88. Trimukh Maroti Kirkan v. State of Maharashtra, MANU/SC/8543/2006
89. Sunil Clifford Daniel v. State of Punjab, MANU/SC/0740/2012

BOOKS REFERRED:-
th
➢ Ratanlal and Dhirajlal’sLaw of Crimes, Vol I, 27 Edn. Reprint 2013, Bharat Law House,

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MEMORIAL ON BEHALF OF THE DEFENCE
 New Delhi.
th
➢ Ratanlal and Dhirajlal’sLaw of Crimes, Vol II, 25 Edn. Reprint 2007, Bharat Law House,
New Delhi.
th
➢ Basu’sCode of Criminal procedure, Vol I, 10 Edn. 2007, Ashoka Law House, New Delhi.
th
➢ C D Field, Expert Evidence, 4 Edn. Reprint 2009, Delhi Law House.
th
➢ R A Nelson’s Indian Penal Code, 9 Edn. 2003, LexisNexis Butterworths.
th
➢ Justice V VRaghavan, Law of Crimes, 5 Edn. Reprint 2001, India Law House, New Delhi.
th
➢ Sarkar on Criminal Procedure, 8 Edn. Reprint 2004, India Law House.
th
➢ S V JogaRao, Law of Evidence, 17 Edn. 2001, Butterworths, New Delhi.
st
➢ Ratanlal and Dhirajlal, Law of Evidence, 21 Edn. Reprint 2005, Wadhwa and Company,
Nagpur.
th
➢ Basu’sIndian Penal Code (Law of Crimes), Vol I, 9 Edn. Reprint 2004, Ashoka Law House.

WEBSITES REFERRED:
www.lexisnexis.com
www.manupatra.com
www.judis.nic.in

DICTIONARIES:-
• Oxford Advance learner’s dictionary, 8th edition, Oxford university press, 2010

• Concise Legal dictionary, Allahabad Law House,Faridabad,2004

• Black’s Law Legal Dictionary

STATUTE REFFERED:

1. The Indian Penal Code, 1860

2. The Criminal Procedure Code, 1973

3. The Indian Evidence Act, 1872

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MEMORIAL ON BEHALF OF THE DEFENCE
4. The Constitution of India, 1950

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MEMORIAL ON BEHALF OF THE DEFENCE
 STATEMENT OF JURISDICTION

The counsel’s humbly submit Memorandum on the behalf of the prosecution in the matter of
State of Delhi v. Rekha Das and Anr.

The council for the prosecution has endorsed their pleading before the District and Session
Court of Delhi under the aegis of section 209 of CrPc

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MEMORIAL ON BEHALF OF THE DEFENCE
 STATEMENT OF FACTS

For the sake of brevity and the convenience of this Hon’ble High Court the Counsels for the
Defence would summarize the gist and the narration of the facts very briefly in the
chronological order:-

• Trisha Das was born to Rekha Das and Siddhartha Das. They split and Rekha left Trisha in
Mumbai, she moved to Delhi. There she met Suhas Kumar, they split up with but remain
good friends. Rekha settled down with Jacob Mukerjee and called Trisha to live with her.

• Trisha was introduced to Shobhit Mukerjee, son of Jacoob Mukerjee from an earlier
marriage, they indulge in illicit relationship and Trisha got pregnant. It was alleged, Rekha
did not approve of the relationship and Trisha had to abort her child due to her pressure.

• On 24 Apr 2012, Shobhit received a breakup SMS. Rekha claimed that she had gone to the
US for higher studies. Shobhit approached police to file a complaint but it was not
registered. He confronted Rekha for Trisha’s whereabouts. She told him that Trisha did not
want to be in relationship with him and gone to US. He told her passport was in his custody
to which he replied they got another passport. Rekha was kept under surveillance.

• Rekha’s driver Sahu was arrested in an unrelated case and during his interrogation he
allegedly revealed details about Trisha's murder. On 23 May 2012, local police found a
decomposed body at Kausani forest, the skeletal remains were not linked with Trisha Das.

• As per the FIR filed by Delhi police, Sahu gave a statement to the police that the murder
was planned by Rekha, who discussed the plan with Suhas Kumar. Allegedly Rekha rented
an Opel Corsa for the abduction and killing and to dispose of the body. Trisha was picked
by Rekha, Suhas and driver Shyam Sahu in the car where Kumar allegedly strangled her.
Police said that after murder, Trisha's body was taken to Rekha's house where it was put
in a bag and stuffed in the boot of the car. The early morning,the three accused drove to the
village of Kotpuli, Kausani forest area, the accused poured petrol over the bag in which
body was stuffed (the driver brought petrol from Shri Ram petrol pump situated on the
High way connecting Kotputli forest) and set it ablaze, police said.

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MEMORIAL ON BEHALF OF THE DEFENCE
• On Aug 25,2015, Delhi police arrested Rekha alleging her of murdering Trisha. Rekha was
charged under sec. 364,313,302, 201,120B and 34 of IPC. On Aug 26,2015,Suhas Kumar
and Sahu was also arrested and charged under sec. 364, 302, 201, 120-B and 34 of the IPC.

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MEMORIAL ON BEHALF OF THE DEFENCE
 STATEMENT OF CHARGES

CHARGES I, II, III, IV & V

ACCUSED 1- REKHA DAS

ACCUSED 2- SHYAM SAHU
ACCUSED 3- SUHAS KUMAR

ACCUSED 1, 2 AND 3 HAVE BEEN CHARGED WITH CRIMINAL CONSPIRACY,

KIDNAPPING OR ABDUCTING IN ORDER TO MUDER, MURDER, CAUSING
DISAPPEARANCE OF EVIDENCE OF OFFENCE, OR GIVING FALSE INFORMATION
TO SCREEN OFFENDER. UNDER SECTION 120 B, SECTION 364, SECTION 302,
SECTION 201 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860.
ACCUSED 1 HAS BEEN CHARGED WITH CAUSING MISCARRIAGE WITHOUT
WOMAN’S CONSENT UNDER SECTION 313.

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MEMORIAL ON BEHALF OF THE DEFENCE
 STATEMENT OF ISSUE

ISSUE 1- Whether Accused 1, 2 and 3 are liable for the offences charged under section
120B and 302 read with section 34 of the Indian Penal Code

ISSUE 2- Whether Accused 1, 2 and 3 are liable for the offences charged under section
201 and 364 of the Indian Penal Code.

AND

ISSUE 3- Whether Accused 1 is liable for the offence charged under section 313 of the
Indian Penal Code.

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MEMORIAL ON BEHALF OF THE DEFENCE
 SUMMARY OF ARGUMENTS
1. - Whether Accused 1, 2 and 3 are liable for the offences charged under section 120B
and 302 read with section 34 of the Indian Penal Code.
This particular issue contests that the accused are not liable for the charges of (i) section 120B
because there was no agreement to do an illegal act , moreover none of the accused have
committed the illegal act. Also there is no direct evidence which can prove the guilt of the
accused beyond reasonable doubt. (ii) section 302 IPC, as they have not killed Trisha Das. No
evidences neither direct nor circumstantia evidence can prove the guilt of the accused beyond
reasonable doubt (iii) Section 34 IPC, as there was no criminal act done by all the accused in
furtherance of the common intention

2. Whether Accused 1, 2 and 3 are liable for the offences charged under section 201 and
364 of the Indian Penal Code.
This particular issue contests that the accused are not liable for the charges of (i) section
201,IPC as there was neither any false information given by the accused nor they have
fabricated the evidences (ii) section 364, IPC as the accused did not abducted Trisha Das in
order to murder.There is no direct evidence which can prove that the accused have abducted
Trisha Das.

3.Whether Accused 1 is liable for the offence charged under section 313
This particular issue contests that the Accused 1 is not liable for the charge of (i) section 313
IPC, as she never forced Trisha Das to abort her child. Whatever is said against the accused 1
is mere allegations, no evidences suggest that she forced Trisha to abort her child without the
consent and also there are no evidence which suggests that whether even abortion happened or
not.

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MEMORIAL ON BEHALF OF THE DEFENCE
 ARGUMENTS ADVANCED

ISSUE 1: THE ACCUSED ARE GUILTY OF CONSPIRACY ALONG WITH ACT

DONE BY SEVERAL PERSONS IN FURTHERANCE OF A COMMON INTENTION

1) It is humbly contended before this Hon’ble Court that the accused Rekha Mukherjee, Suhas
Kumar and Shyam Sahu are not guilty of the offences under Sec 120 B along with Sec 34
of the Indian Penal Code, 1860. In the instant matter there was no conspiracy to kidnap or
abduct in order to murder Ms. Trisha Das thereby no action of murdering Ms. Trisha Das
took place in furtherance of the common intention.

1.1 ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY

2) Criminal Conspiracy as defined under Sec. 120A1 consists of an agreement between two
or more persons to commit an illegal act or a legal act by illegal means.2

3) The elements of a Criminal Conspiracy are: Agreement between two or more people by
whom the agreement is effected, a criminal object which may be either the ultimate aim of
the agreement, or may constitute the means, or one of the means by which that aim is to be
accomplished.3

1.1.1 No Commission of An Illegal Act

4) As per Section 10 of the Indian Evidence Act, there must be some prima facie evidence in
proof of the existence of conspiracy4.

1 Indian Penal Code, 1860

2
Esher Singh v. State Of Andhra Pradesh, 2004 (4) ALT 28; HALSBURY’S LAW OF ENGLAND 44(Lord
Hailshameds, 4thed 1987)
3 State v. Navjot Sandhu, 2005 Cri LJ 3950(SC)
4 The Superintendent Central ... vs Shri Suresh Mulchand Seth, 2008 (110) Bom L R 361

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MEMORIAL ON BEHALF OF THE DEFENCE
5) From the facts of the instant case, from nowhere can it be propounded that there was
commission of any illegal act on the part of the defendants. The evidences which came
before the court, do not draw a conclusive proof that can prove the commission of the
offence.

6) To apply this provision it has to be shown that there exists a reasonable ground to believe
that conspiracy in between the accused took place. This condition gets satisfied when there
is some prima facie evidence to show the existence of conspiracy. No such evidences exist
in the present case.

7) In the instant case, confession made by Sahu, was whilst he was in police custody. A person
when in police custody is presumed to be under the control and influence of police.
Therefore, a confession made not only to the police officer but to anyone is irrelevant under
section 265. Sahu later denied all the facts stated in FIR and his confessions before the court.
Therefore, making the whole scenario null and void. Thereby constituting the fact, that no
act of any sort took place.

8) Section 276 states the admissibility of information received from an accused during the
investigation. The section is based on the view that if a fact is actually discovered in
consequence of information given, it would be admissible.

9) Taking Sec.27 into consideration, the three evidences that came before the court are also
inadmissible. Firstly, as admitted by Sahu, the three accused went to the kasauni forest by
car. The car used for abduction was not recovered. Secondly, Kumar also denied his
confession before the court. The petrol pump attendant could also not recognize Sahu at a
later stage.

1.1.2 No Agreement or understanding between the accused

10) The provision of Sec 120A and 120B IPC states that the offence of conspiracy lies not in
doing the act, or affecting the purpose for which the conspiracy is formed, nor in attempting

5Chandubhai Abhesingbhai Chauhan vs State, CRIMINAL APPEAL NO.

2238 of 2008

6 Indian Evidence Act, 1872

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MEMORIAL ON BEHALF OF THE DEFENCE
 to do them, nor in inciting others to do them, but in the forming of the scheme or agreement
between the parties.7

11) In the case, State of Tamil Nadu v. Jayalalitha8 it was held that unless the court has some
material to believe that there exists a reasonable ground that two or more people have
conspired together to commit an offence, a person cannot be charged under the said section.

12) For an offence under section 120-B9 the intention must proceed to an agreement.10

13) In the instant matter, there was no intention to kidnap in order to commit murder. None of
the witness, statements or events of the case depicts that the accused had agreed over the
intention to commit the murder of the deceased. There is no direct evidence to prove any
intention and a conspiracy in the same regard.

14) According to section 26 of the Evidence Act, “Confession by accused while in custody of
police not to be proved against him11”

15) It was held in the case of, Police v. Narender Singh12, that a confession made by the
accused whilst in police custody is invalid.

16) Thus it is clear from the materials available on record that there was no common design
between all these accused to do any illegal act. Therefore, it is humbly submitted that no
conspiracy on part of the accused can be proved beyond reasonable doubt.

7 Hira Lal Hari Lal Bhagwati, C.B.I. 2003 SCC (Cri) 1121
8 (2000) 5 SCC 440
9 Indian Penal Code.
10 Vijay Kumar v. State, 2014(4) JCC 2494
11 Ibid 5

12 AIR 2006 SC 1800

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MEMORIAL ON BEHALF OF THE DEFENCE
1.2 ACCUSED ARE NOT LIABLE FOR ACTS DONE BY SEVERAL PERSONS IN
FURTHERANCE OF COMMON INTENTION

17) Section 34 of the Penal Code creates no specific offence. It only lays down a rule of
evidence that if two or more persons commit a crime in furtherance of a common intention,
each of them will be held liable jointly on the principle of group liability.13

18) To attract the principle of Sec. 34, the following three conditions must exist, viz.,

• A criminal act must be done by several persons;

• There must be a common intention of all to commit that criminal act:
• There must be participation of all in the commission of the offence in furtherance of
that common intention.14

19) In the instant case, there exists no direct evidence so as to prove the commission of a
criminal act. Sahu, on whose confessions the case was structured, denied all the facts stated
in FIR and his confessions before the court. At a later stage, during the investigation, no
evidences have been found in corroboration to the confessions of Sahu. Hence giving no
reasonable grounds to believe the commission of acts by the accused in furtherance of a
common intention.

20) In the case of Sheoram Singh v. State of Uttar Pradesh15 the Supreme Court held that
unless there is cogent evidence and clear proof of the intention of the accused during the
course of the occurrence, the accused cannot be vicariously held guilty under sec 3416

13
Reg. v. Cruse, 1838 C&P 541
14
Parichhat v. State Of Madhya Pradesh, 1972 Cr LJ 322(SC)
15 AIR 1972 SC 2555
16 Indian Penal Code

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MEMORIAL ON BEHALF OF THE DEFENCE
 Similar was the view of the hon’ble court in the case of Wasim Khan v. State of Uttar
Pradesh.17

21) It is humbly contended before this Hon’ble Court that the accused Rekha Mukherjee, Suhas
Kumar and Shyam Sahu are not guilty of the offence of murder under section 302, IPC,
punishable under section 302 read with section 34 of the Indian Penal Code, 1860,
considering Lack of Motive and Intention on the part of the accused, No Direct Evidence.
Furthermore, the Prosecution’s case must be dismissed because of heavy reliance on
inadmissible confession and circumstantial evidence, faulty investigation, all creating the
existence of a reasonable doubt

1.3 LACK OF MOTIVE AND INTENTION ON THE PART OF THE ACCUSED

22) Section 300 of the IPC defines Murder.18 No person shall be convicted for a criminal
offence unless, evidences given, prove the motive of the accused.19

23) It was held in the case of Gangaram Kondiba Ingle v. State Of Maharashtra20, that mere
suspicion of motive is not sufficient to frame charges against an accused, unless proved.

24) In the instant scenario, there is no motive of any sort, in order to commit the murder of the
deceased. And anything, if otherwise portrayed, has no evidence at its end.

1.4 NO DIRECT EVIDENCE

17 AIR 1956 SC400

18 Chapter XVI,IPC
19 MANU/DE/1153/2010
20 2000 Cr.Lj 336 (Bom)

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MEMORIAL ON BEHALF OF THE DEFENCE
25) It was held in the case of Kedar Nath v. State of Madhya Pradesh21 that, when there is no
evidence as to how death came about, evidence relating to charge of murder is held to be
insufficient and unacceptable.

26) The Supreme Court in the case of Lakshmi and Ors. v. State of U.P.22 stated that the
identification of body, cause of death and recovery of object with which the injury may
have been inflicted on the deceased are the important factors to be established by the
prosecution to bring home the charge of offence under section 302.23

27) The instant case, is solely relying on the inadmissible confessions and unproved
circumstantial evidences.

1.5 HEAVY RELIANCE ON INADMISSIBLE CONFESSION AND

CIRCUMSTANTIAL EVIDENCE

28) Confessions made by Shyam Sahu were whilst in police custody. According to section 26,
any confessions made by the accused while in the custody of police, is inadmissible24.

29) It was held in the case of State of Bihar v. Raj Kumar Mahto, a confessional statement
made by the accused while in police custody, which does not lead to the recovery of facts,
cannot be used in evidence as confessional statement is hit by section 26 of the Indian
Evidence Act.25

30) In the instant case, no relevant fact, which proves the guilt of the accused beyond reasonable
doubt, could be discovered in consequence of the information received by Shyam Sahu in
his confession whilst in police custody, thereby making it inadmissible. A conviction made
on the basis of a confession by a co- accused in absence of corroboration from other

21 (1991) Cr Lj 989(SC)
22 MANU/SC/0715/2002
23 Indian Penal Code
24 State Of Assam vs Anupam Das, 2008 CriLJ 1276

25 State of Bihar v. Raj Kumar Mahto, 2006 Cr.Lj 4666

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MEMORIAL ON BEHALF OF THE DEFENCE
 independent evidence would be considered very unsafe to do.26 Corroboration on material
particulars means that there should be some additional or independent evidence that.27

1. Renders the story in the F.I.R. true and reasonably safe to act upon.

2. Shows direct or circumstantial evidence linking the accused with the crime

31) Shyam Sahu’s statement is without corroboration as everything that had been stated by him
has been unsupported by the facts, and could easily be fictional. Neither the petrol pump
attendant Rambahadur identified Sahu before the court nor could the car used for abduction
be recovered. Adding on to this, Sahu denied all the facts stated in the F.I.R in his confession
before the court, so did Suhas Kumar, thereby making the past confessions completely
inadmissible.

32) In the case of State of Manipur v. Okram Jitan Singh28 it was held that the accused cannot
be convicted on the basis of circumstantial evidence if there is missing link in the chain of
events to prove the circumstances conclusively against the accused.

33) It was held in the case of Arvind v. State (Delhi Admn.)29, that, the chain of evidence must
be complete with fully established circumstances not to leave any reasonable ground for a
conclusion consistent with the innocence of accused. It should be of conclusive nature.

34) In a case based on circumstantial evidence, the circumstances from which the conclusion
of guilt is to be drawn have not only to be fully established but all the circumstances so
established should be of conclusive nature and consistent with the hypothesis of the guilt
of the accused. Moreover, all the established circumstances should be complete and there
should be no gap in the chain of evidence.30

26 Haricharan Kurmi v. State Of Bihar AIR 1964 SC 1184

27 Ratanlal, Dhirajlal, Law of Evidence, p.801 (24th Ed. 2011)
28 2005 Cr LJ 1646
29 1999(4) SCC 4861
30
MANU/SC/3346/2007

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MEMORIAL ON BEHALF OF THE DEFENCE
1.6 FAULTY INVESTIGATION
35) The hon’ble Supreme Court in the recent case of, Kailash Gour and Ors. v. State Of
Assam31 held, that if the investigation of the case is faulty and does not prove the guilt of
the accused beyond reasonable doubt, accused is presumed to be innocent and cannot be
convicted and sentenced for the same. The benefit arising from any such faulty
investigation ought to go to the accused and not to the prosecution.

36) In the instant case, police lacked in the investigation process. Firstly a delay in registering
F.I.R was caused. Then the body went unreported for forty months. After the linking up of
the body with the instant case, as the body was completely burnt, the cause of death
remained a mystery. The other evidences and confessions as stated in F.I.R. stand
inadmissible, as neither could the car used for abduction be recovered nor was there any
investigation regarding the renting of opel corsa, hotel stay, flight tickets. The petrol pump
attendant also could not identify Sahu before the court thereby altogether nullifying
everything stated in the F.I.R, and making it a fictional story. The silent fact as to whether
the narcoanalysis test was done voluntarily or otherwise gets revealed when Suhas, and
Sahu deny their confessions before the court thereby showing lack of consent at the time
of test, and making it inadmissible.32

1.7 EXISTENCE OF A REASONABLE DOUBT

37) Going with the judgment of the apex court in the case of Mousam Singh Roy v. State of
West Bengal33, It is a settled principle of criminal jurisprudence that the serious the offence
the stricter the degree of proof required to convict the accused.

31 MANU/SC/1505/2011
32 Selvi v. State Of Karnataka
33 2004 3 SCC 753

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MEMORIAL ON BEHALF OF THE DEFENCE
38) The apex court in the recent case of, Raghunath v. State of Haryana34 stated that if two
views are possible, one in favour of the accused and the other adversely against it, the view
favoring the accused must be accepted.

39) In the case of, Madhari v. State of Chattisgarh35 the court discussed about the ligaltive
mark on the neck of the deceased, hence after analysis constituting that such a mark cannot
be caused by strangulation, thereby pacifying the case of the accused.

40) In order to sustain conviction, circumstantial evidence shall be complete and incapable of
explanation of any other hypothesis than that of guilt of Accused beyond reasonable doubt36

41) In cases based on circumstantial evidence, every circumstance would have to be proved
beyond reasonable doubt and further the chain of circumstances should be so complete and
perfect that the only inference of the guilt of the accused should emanate therefrom.37

42) 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 “the prosecution must fill
that gap by legal, reliable and unimpeachable evidence before a conviction can be
sustained. 38. 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 the accused should be acquitted
of the same.

34 AIR 2003 SC 165

35 2002 Cr LJ 2630 (SC)
36 MANU/SC/0603/2012
37 MANU/SC/0145/2011
38 Ramakant Rai v. Madan Rai, Cr.Lj 2004 SC 36

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MEMORIAL ON BEHALF OF THE DEFENCE
ISSUE 2: ACCUSED 1,2,3 ARE NOT LIABLE FOR THE OFFENCES CHARGED
UNDER SECTION 201 AND 364 OF THE INDIAN PENAL CODE

43) Section 201 of IPC39 deals with causing disappearance of evidence of offence, or giving
false information to screen offender

44) The following ingredients must be present to hold a person liable under this section:

(1) That an offence has been committed;

(2) That the accused knew or had reason to believe the commission of such offence;
(3) That with such knowledge or belief he-----
(a) Caused any evidence of the commission of that offence to disappear,or
(b) Gave any information respecting that offence which he then know or believe to be
false;
(4) That he did as aforesaid, with the intention of screening the offender from legal
punishment. The intention to screen the offender committing an offence must be the
primary and sole arm of the accused. The mere suspicion is not sufficient to bring home
the said offence. There must be cogent evidence to prove that the accused knew or had
information sufficient to lead him to believe that the offence had been committed and
that the accused caused the evidence to disappear in order to screen the offender known
or unknown.40
2.1 THE ACCUSED WAS NEITHER KNOWING NOR HAVE THE REASON TO
BELIEVE THAT AN OFFENCE HAS BEEN COMMITTED
45) In the case of V.L Tresa v State of Kerala41 it was held that “ mere suspicion would not be
sufficient. There must be available on record cogent evidence that the accused has caused
the evidence to disappear in order to screen another known or unknown. The foremost
necessity being that the accused must have the knowledge or have reason to believe that

39 Indian Penal Code ,1860 Chapter XI

40 Sukhram AIR 2007 SC 3050
41 Tresa V L AIR 2001 SC 953

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MEMORIAL ON BEHALF OF THE DEFENCE
 such an offence has been committed.’’.Similar view was held in the case of Podda
Narayana v. State of Andhra Pradesh42, State of Karnataka v Madesha and Ors43 and
Palvinder Kaur v. The State of Punjab.44

46) In the instant case, they have not committed any offence, the accused neither have the
knowledge that the offence has been committed nor have the reason to believe that the
offence has been committed. So they cannot be held liable for the offence under section
201 of IPC.

2.1.1 Confession is inadmissible

47) In the case of Indra Dalal Vs. State of Haryana it was held that confession which are made
in police custody is inadmissible in evidence.45 Similar view was held in the case of Salim
Vs. State of Kerala46.

48) In the present case, all the statements were given by the Shyam Sahu when he was in the
police custody. Sahu denied all the facts stated in FIR and his confession before the court
clearly indicates that whatever he said when he was in the police custody was in the
influence of police and hence it is inadmissible. And as there is neither any direct evidence
nor the complete chain of circumstantial evidence which shows that the accused have
committed the offence under section 364,302 of IPC.As they have not committed the
offences why would they make the evidences to disappear.

49) So the counsel humbly submits that it is quite evident from the circumstances and evidences
produced before the court that there is only suspicion about the offences done by the
accused, there is no direct evidence which can prove the guilt of the accused beyond
reasonable ground. And as they have not disappeared the evidence they cannot be held
guilty for the offence under section 201 of IPC.

42 1975 Cri LJ 1062(SC):AIR 1975 SC 1252 : (1975)

43 MANU/SC/7745/2007
44 MANU/SC/0038/1952
45
MANU/SC/0661/2015
46
MANU/KE/1324/2012

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MEMORIAL ON BEHALF OF THE DEFENCE
 2.2 THE ACCUSED CAN BE HELD LIABLE FOR KIDNAPPING OR
ABDUCTING IN ORDER TO MURDER.

50) Section 364 OF IPC47 defines -Kidnapping or abducting in order to murder : Whoever
kidnaps or abducts any person in order that such person may be murdered or may be so
disposed of as to be put in danger of being murdered, shall be punished with imprisonment
for life or rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine.48

51) In the case of Philips Fadrick D’ Souja and Ravindra vs . The State of Maharashtra and
The Inspector of Police 49
, the Hon’ble Court held “The purpose for committing the
unlawful act of kidnapping must exist at the time when the act of kidnapping or abduction
takes place.”

52) The Hon’ble Supreme Court in the case of Gade Lakshmi Mangraju alias Ramesh v. State
of Andhra Pradesh 50
has laid down that one circumstance by itself may not unerringly
point to the guilt of the accused. To acquit the accused on that basis is not a safe method
for appreciating a case based on circumstantial evidence. It is cumulative result of all the
circumstances alleged and proved, which matters. It is not open to cull out one circumstance
from the rest for the purpose of giving a different meaning to it.

53) In the case of Jamsing Hulya Barela vs. The State of Maharashtra 51
Held that when
offending weapons were not discovered, no eye witnesses are there and Other witnesses
and material on record are not enough to make appellant guilty - Prosecution has not able
to make out its case beyond reasonable doubts, then accused should get benefit of doubt.

54) Here in the instant case it was alleged that Trisha was being abducted in order to murder,
but mere allegation is not enough to prove the guilt of the accused. Even if we consider the

47 Indian Penal Code, Chapter XVI

48 Amar Mishra vs State Of Delhi, MANU/DE/3866/2011
49 MANU/MH/0842/2008
50 MANU/SC/0358/2001
51 MANU/MH/0444/2010

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MEMORIAL ON BEHALF OF THE DEFENCE
 allegation, then too the car which was used as alleged, the bag in which the dead body was
stuffed and the weapon used for strangling Trisha was not recovered.

55) In the very recent case of Gaurav vs . State 52, it was held that the prosecution is bound to
prove the guilt beyond reasonable doubt. Mere suspicion is not enough and no substitute
for proof. Court's verdict must rest not upon suspicion but legal grounds established by
legal testimony to base conviction.

56) In the case of Trimukh Maroti Kirkan v. State of Maharashtra 53,it was held that in case
there is no eyewitness of the occurrence and the case of the prosecution rests on
circumstantial evidence. The normal principle in a case based on circumstantial evidence
is that the circumstances from which an inference of guilt is sought to be drawn must be
cogently and firmly established and they should be incapable of explanation on any
hypothesis other than that of the guilt of the accused and inconsistent with their innocence54.

57) The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab55, Sampath
Kumar v. Inspector of Police, Krishnagiri56,Mohd. Arif @ Ashfaq v. State (NCT of
Delhi57

58) In the very recent case of Lechu Meah and Ors . vs . The State and Ors . 58
Reasonable
doubt that must be created in our mind must be based on the evidence on record itself and
not on mere inferences, surmises, speculations and conjectures. Once the guilt of the
accused is established, the mere fact that there is only a remote possibility in favour of the
accused is itself sufficient to establish the case beyond all reasonable doubt."

52 MANU/DE/3275/2013
53 MANU/SC/8543/2006

54 C. Chenga reddy v. state of a.p., MANU/SC/0928/1996

55 MANU/SC/0740/2012

56 MANU/SC/0188/2012

57 MANU/SC/0919/2011
58
LEX/BDHC/0146/2013

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MEMORIAL ON BEHALF OF THE DEFENCE
59) In the case of Sita Raut vs. The State of Bihar and Bagar Raut 59 it was held, in order to
prove charge under Section 364 of IPC, prosecution had to prove that either force or deceit
was practiced on person abducted as otherwise a conviction under Section 364 of IPC,
could not stand - Force or fraud must have been practised upon person abducted.

60) In the instant case, no purpose existed because of which the three accused would kidnap
Trisha in order to murder her. Rekha was a very modern mother and as a human being had
a very practical approach towards life. Taking into consideration the evidences which have
come up before the court, none of it stands and proves the guilt of the three accused beyond
reasonable doubt. Thereby not making them liable under the said offence.

59 MANU/BH/1172/1999

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MEMORIAL ON BEHALF OF THE DEFENCE
ISSUE 3: ACCUSED 1 IS NOT LIABLE FOR THE OFFENCE CHARGED UNDER
SECTION 313

61) Section 313 of IPC60 defines – Causing miscarriage without woman’s consent Whoever
commits the offence defined in the last preceding section without the consent of the woman,
whether the woman is quick with child or not, shall be punished with imprisonment for life,
or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.61

62) In the instant case, it has been alleged that Trisha had to abort her child due to Rekha's
pressure.

63) According to Black's Law legal dictionary, the term allegation has been defined as a formal
claim against someone. It sparks an investigation that leads to someone being proven
innocent or found guilty. Decisions about what charge to lay are based on the evidence
collected during the investigation.

64) In the instant case, our client is being charged under Section 313, on the basis of a mere
allegation. No evidence has been gathered by the police in the specific regard.

65) The Supreme Court in the case of State of Madras v. Vaidyanatha Iyer 62
held "In any
case, the evidence is not enough to show that the explanation offered by the accused cannot
reasonably be true, and so the benefit of doubt must go to him".

66) In the case of Sonti Rambabu Ramu, S/o Nancharaiah vs. State of A.P.63 , the Hon’ble
Court held that it is pertinent to note that in a matter of this nature, the medical evidence

60 Indian Penal Code, Chapter XVI

61 Zakir Hossain Mallick vs Unknown, CRA No. 341 of 2004
62 AIR 1958 SC 61
63 MANU/AP/0865/2004

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MEMORIAL ON BEHALF OF THE DEFENCE
 would play a very crucial role and in the absence of corroborative medical evidence, just
on the uncorroborated testimony it would not be safe to convict under section 313 IPC. It
is needless to say that on the strength of the scant evidence, conviction for a serious offence
under Section 313 IPC cannot be sustained.

67) The Supreme Court in the very recent case of Gagan Kanaujia and Anr. Vs. State of
Punjab 64 held prosecution case is required to be covered by leading cogent, believable and
credible evidence.

68) In the case of State V. Pradeep 65

it was held that no conviction can be based on such
evidence. For convicting any person for the said offence, the degree of proof has to be that
of a high standard and not mere possibility of committing the said offence. In a criminal
case, the prosecution has to prove its case beyond reasonable doubt66 against the accused.
The prosecution story does not inspire confidence and is not worthy of credence. The gaps
in the prosecution evidence, the several discrepancies make it highly improbable that such
incidents ever took place.
69) Here in the instant case, Police carried out the investigation wherein however no evidence
is found against our client absolutely that pregnancy of Trisha was terminated on Rekha's
instruction, there is no medical evidence as far as this aspect is concerned. Aversion or
opposition to relationship does not necessarily mean that Rekha pressurized Trisha for
abortion.

64 MANU/SC/8726/2006
65 Sessions Case Number : 349 of 2013
66 State of Maharashtra through CBI vs. Ahmad Shah Khan @ Salim Durani and Anr.,

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MEMORIAL ON BEHALF OF THE DEFENCE
 PRAYER FOR RELIEF

Wherefore in the lights of the issues raised, arguments advanced and authorities cited, the
council for the defence most humbly and respectfully prays before this Hon'ble District and
Sessions Court may be pleased to adjudge and declare that:

From the prima facie view, it can be said that all the three accused were innocent and
prosecution is not able to prove their guilt beyond reasonable doubt.
i) The accused had not committed any offence regarding murder of Trisha Das.

ii) Accused 1,2,3 are liable for the offences charged under Section 201 and 364 of the
Indian Penal Code

iii) Accused 1 is liable for the offence charged under Section 313 of the Indian Penal
Code

The Court may also be pleased to pass any other order, which the court may deem fit in light
of justice equity and good conscience. All of which is most humbly prayed.

Place:
DATE: (On Behalf of the Defence)

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MEMORIAL ON BEHALF OF THE DEFENCE