1

SURANA & SURANA NATIONAL TRIAL ADVOCACY COMPETITION - 2015

IN THE COURT OF SESSIONS

DURG, XANADU, BHARAT

IN THE CASE OF
STATE OF XANADU
(PROSECUTION)
VS

MANOHAR LAL AND RAHUL GULATI

(DEFENCE)

MEMORIAL ON BEHALF OF THE PROSECUTION

TEAM CODE __________

TABLE OF CONTENTS

INDEX OF AUTHORITIES.... VI
STATEMENT OF JURISDICTION....... IX
STATEMENT OF FACTS....... X
THE STATEMENT OF CHARGES.......XI
ISSUES RAISED.....XII
THE SUMMARY OF ARGUMENTS........XIII
ARGUMENTS ADVANCED.1
1. MR. MANOHAR LAL AND MR. RAHUL GULATI WERE INVOLVED IN CRIMINAL
CONSPIRACY AGAINST

MR KARAN

..1
1.1 BOTH ACCUSED SHARED

THE COMMON INTENTION OF

MURDERING

MR. KARAN
1
2. THE ACCUSED
AND

66C

HAVE COMMITTED THE OFFENCE OF

OF

INFORMATION

.5

HACKING

TECHNOLOGY

UNDER SECTION
ACT

66

2000

2.1 THE ACCUSED GAINED UNAUTHORISED ACCESS INTO THE VICTIMS

COMPUTER

AND

ONLINE

BANKING

ACCOUNT

..

5
2.2 THE ACCUSED KNOWINGLY INTRODUCED A COMPUTER CONTAMINANT INTO
THE

VICTIMS

COMPUTER

..6
2.3 THE ACCUSED COMMITTED ARE LIABLE TO BE PUNISHED UNDER SECTION 43
OF INFORMATION TECHNOLOGY ACT, 2000 ..7
3. THE ACCUSED MR. MANOHAR LAL
FORGERY

AND

AND

MR. RAHUL GULATI

ARE LIABLE FOR

CRIMINAL BREACH OF TRUST ..

..9
3.1 MANOHAR AND RAHUL INTENDED TO CHEAT KARAN
9
3.2 THE ACCUSED MISAPPROPRIATED THE VICTIMS PROPERTY ENTRUSTED TO
HIM ...10
4. THE

ACCUSED ARE LIABLE FOR THE

AMOUNTING

TO

MURDER

OFFENCE OF

PUNISHABLE

CULPABLE HOMICIDE

UNDER

SECTION

302

13

PRAYER FOR RELIEF 16

LIST OF ABBREVIATIONS
Admn.

Administration

All ER

All England Reporter

AIR

All India Reporter

ALJ

Allahabad Law Journal

Bom CR

Bombay Cases Reporter

B.P.C.

Bharat Penal Code

BPO

Business Process Outsourcing

Cr LJ

Criminal Law Journal

Cy AT

Cyber Appellate Tribunal

Dr.

Doctor

Edn.

Edition

H.P.

Himachal Pradesh

Honble

Honorable

i.e.

That is

IT

Information Technology

IPC

Indian Penal Code

mins.

Minutes

Mohd.

Mohammad

M.P.

Madhya Pradesh

NCT

National Capital Territory

Ors.

Others

P.

Page

PC

Privy Council

Rs.

Rupees

SCC

Supreme Court Cases

SC

Supreme Court

SCR

Supreme Court Reporter

&

And

v.

Versus

U.P.

Uttar Pradesh

INDEX OF AUTHORITIES
STATUTES

CODE OF CRIMINAL PROCEDURE, 1973

INDIAN PENAL CODE, 1860
THE INDIA EVIDENCE ACT, 1872
INFORMATION TECHNOLOGY ACT, 2000

LIST OF CASES
INDIAN CASES
1. ABHINAV GUPTA V. STATE OF HARYANA 2008 CRI.L.J. 4536.
2. AJAY AGARWAL V. UNION OF INDIA AND ORS; 1993 AIR 1637
3. ASOKE BASAK V. STATE OF MAHARASHTRA (2010) 10 SCC 600;
4. BUDHI LAL V. STATE OF UTTARAKHAND ; AIR 2009 SC 87
5. CHACKO V. STATE OF KERALA ; (2004) 12 SCC 269
6. CHELLOOR MANKKAL NARAYAN ITTIRAVI NAMBUDIRI

V.

STATE

OF

TRAVANCORE

1953 SC AIR 478

7. DEV RAJ V. STATE OF PUNJAB ; AIR 1992 SC 950
8. FATMA BIBI AHMED PATEL V. STATE OF GUJARAT & ANR; 2008(6)SCC789
9. HANUMANT V STATE OF MADHYA PRADESH ; AIR 1952 SC 343
10. INDER MOHAN GOSWAMI & ANR. V. STATE
251

OF

UTTARANCHAL & ORS AIR 2008 SC

11. INDYA SEGA VALVI V. STATE OF MAHARASHTRA ; 2001 CRLJ 4804 (BOM)
12. JANESHWAR PRASAD V. STATE OF U.P. ; 2013(3) ALJ 222
13. KEHAR SINGH V. STATE (DELHI ADMN.) ; AIR 1988 SC 1883 AT P.1954
14. KUMAR V. WHITLEY
15. LAXMINATH V. STATE OF CHATTISGARH ; AIR 2009 SC 87
16. MIRZA AKBAR V. KING EMPEROR ; AIR 1940 PC 176 AT P. 180
17. MURALIDHAR SATPATHY V. STATE OF ORISSA 2007(I) OLR 611
18. NASEEM AHMED V. DELHI ADMIN ; (1974) 2 SCR 694 (696)
19. NOOR MOHAMMAD YUSUF MOMIN V. STATE OF MAHARASHTRA ; AIR 1971 SC 885
20. ONKAR NATH MISHRA V. STATE (NCT OF DELHI) , (2008) 2 SCC 561
21. PRITHVI V. STATE OF HARYANA ; (2010) 8 SCC 536
22. R VENKATKRISHNAN V. CENTRAL BUREAU OF INVESTIGATION 2009 SCC 737;
23. RAMGOPAL V. STATE OF MAHARASHTRA ; AIR 1972 SC 656
24. RAMKRUSHNA V. STATE OF MAHARASHTRA ; (2007) 13 SCC 525
25. RULI RAM V. STATE OF HARYANA ; (2002) 7 SCC 671
26. SARDUL SINGH CAVEESHWAR V. STATE OF MAHARASHTRA 1964 2 SCR 378
27. SAROJ MALIK V. GIRISH

28. SAROJ MALIK V. RAHUL P SHAH 2011 SCC ONLINE CYAT 9

29. SHIVAJI SAHEBRAO BOBADE V. STATE OF MAHARASHTRA ; AIR 1973 SC 2622
30. SHIVANARAYAN LAXMINARAYAN & ORS. V. STATE

OF

MAHRASHTRA & ORS.; (1980)

2 SCC 465
31. STATE V. NALINI AIR 1999 SC 2640
32. STATE OF H.P. V. KRISHAN LAL PRADHAN AIR 1987 SC 773
33. SUKANTI CHOUDHURY V. STATE OF ORISSA 2013 SCC ONLINE ORI 9
34. SUNDER LAL V. STATE OF RAJASTHAN ; (2007) 10 SCC 371
35. SURESH LALCHAND LULLA V. SUDHIS TALPADE 1992 (3) BOM CR 394
36. TUFAIL V. STATE OF UTTAR PRADESH ; (1969) 3 SCC 198
37. VEERAN V. STATE OF M.P. ; (2011) 11 SCC 367
38. VIJAYAN V. STATE OF KERALA ; AIR 1999 SC 1086
39. VINOD KAUSHIK & ORS.

V.

MADHVIKA JOSHI & ORS; ADJUDICATING OFFICER,

INFORMATION TECHNOLOGY ACT, 2000, GOVERNMENT

OF

MANTRALAYA,MUMBAI- 400032, COMPLAINT NO.2 OF 2010192.

FOREIGN CASES
1. QUINN V. LEATHEM; 1901 AC 495 AT 528
2. MULCAHY V. REG (1868) L.R. 3 H.L. 306

MAHARASHTRA, AT

3. COCO V. A.N. CLARK ENGINEERS LTD. (1969) 2 R.P.C. 41

4. CRANLEIGH PRECISION ENGINEERING CO. LTD. V. BRYANT (1956) 3 ALL ENGLAND
REPORT 301
BOOKS/ MANUALS/ DIGESTS AND OTHER RECOGNISED TEXTS-

PAWAN DUGGAL, CYBER LAW- THE INDIAN PERSPECTIVE , 2ND EDN., 2004

PROF. S.N. MISHRA, THE INDIAN PENAL CODE, 19TH EDN., 2013

RAM JETHMALANI AND D.S. C HOPRA, THE INDIAN PENAL CODE (VOLUME -1
AND

VOLUME - 2), 1 ST EDN., 2014

HARI SINGH GOUR, INDIAN PENAL CODE (VOLUME - 1 AND VOLUME - 2), 14TH
EDN., 2013

M.C. S ARKAR, LAW OF EVIDENCE , 16TH EDN., 2007

RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 28TH EDN., 2002

STATEMENT OF JURISDICTION
1. Section 177 of the Code of Criminal Procedure states that Every offence shall ordinarily
be inquired into and tried by a Court within whose local jurisdiction it was committed.

10

2. Section 193 of the Code of Criminal Procedure states that, Except as otherwise expressly
provided by this Code or by any other law for the time being in force, no Court of Session
shall take cognizance of any offence as a court of original jurisdiction unless the case has
been committed to it by a Magistrate under this code. Hence in the instant case as per the
facts mentioned, the Magistrate Court has referred the instant case to the Court of Sessions in
Durg , Xanadu, Bharat, hence this Court has the requisite jurisdiction to try the instant case.
3. Section 209 of the Code of Criminal procedure states that, When in a case instituted on a
police report or otherwise, the accused appeared 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 commit it to the Court of Session. Thus this case is tried at the Court of Session on
being committed to it by the Magistrate and thus has the requisite jurisdiction.
4. Section 199(1) of the Code of Criminal Procedure states that, No court shall take
cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of
1860) expect upon a complaint made by some person aggrieved by the offence Here in the
instant case a complaint was filed by the aggrieved party, hence, this court has the requisite
jurisdiction.

STATEMENT

OF

FACTS

1. The accused, Manohar Lal (Mano), upon being orphaned, began residing with his uncle
the victim, Karan, along with his wife Devika and son Raghav. Karan was encouraging of

11

Manos excellent academic performance and provided financial and emotional support,
which culminated in an admission into the medical college TMC. Mano was enthralled by
the affluence of his classmates and became friends with Rahul, who had always been a
proficient hacker. Soon Mano began borrowing money from Rahul and the debt had
reached Rs. 1 Lakh upon which Rahul demanded its return.
2. Given his fractious relationship with Raghav and Devika, and Karans ill health Mano
was nominated benefactor to an insurance policy of Rs 2 Crores. On a few occasions,
Rahul came over to Manos house for a sleep over and connected a keylogger into
Karans computer which enabled them to decrypt his online banking password and
transferred money to his account. Rahul came to know about the insurance policies.
3. Karan asked Mano to transfer money to his account to pay his semester fees, which
Devika had not paid. Mano tried to open Karans bank account, but was unable due to
inappropriate password. He found the id and password in one file and opened the Karans
account and transferred Rs. 2.50 lakhs as opposed to Rs. 2.25 lakhs which is what he
would usually transfer to his account.
4. The next day Mano sat with Karan before leaving for college. Karan started coughing
heavily, he also had chest pain and stomach ache. Mano was looking for the pain killers,
but could not find them. So he took a pen and wrote the name of a medicine Angispan on
Dr. Chowdharys prescription. Raghav immediately rushed and got the medicines.
Manohar administered the pain killer via intravenous. Karan was quiet for about half an
hour. Suddenly he developed fits and seizure and was moaning heavily and collapsed.
Mano and Raghav tried to revive him but failed. Karan had passed away.
STATEMENT

Following are the charges against the accused:

OF

CHARGES

12

a. Manohar Lal Under Sections 302, 465 read with 34 and 120B of the B.P.C. 1 and
Sections 66 and 66C of the Information Technology Act2.
b. Rahul Gulati Under Sections 302, 465 read with 34, 120B and 109 of the B.P.C. and
Sections 66 and 66C of the Information Technology Act.

The Laws of Bharat are pari materia to the Laws of India.

ISSUES RAISED-

1 Bharat Penal Code.

2 Information Technology Act, 2000.

13

WHETHER

THE ACCUSED HAVE CONCOCTED A CRIMINAL CONSPIRACY AGAINST

KARAN?
2

WHETHER

THE ACCUSED ARE LIABLE TO BE CHARGED UNDER

SECTION 66

AND

66C OF THE IT ACT, 2000?

3

WHETHER

THE ACCUSED ARE LIABLE TO BE CHARGED FOR FORGERY AND

CRIMINAL BREACH OF TRUST?

WHETHER THE ACCUSED ARE LIABLE FOR

SUMMARY

I.

OF

COMMITTING MURDER ?

ARGUMENTS

THAT MANOHAR AND RAHUL HATCHED A CRIMINAL CONSPIRACY AGAINST KARAN.

14

That the accused were part of a criminal conspiracy against Karan. The said conspiracy
was illegal which is obvious from the chain of events, which were all part of the same
transaction.
II.

THAT ALL THE ACCUSED ARE LIABLE TO BE CHARGED UNDER SECTION 66 AND 66C
OF THE INFORMATION

TECHNOLOGY ACT, 2000.

The accused committed various offences under section 66 and 66C of the Information
Technology Act, 2000. Section 66 prescribes the punishment for the offences
committed under section 43, whereas section 66C apart from describing the offence of
dishonest use of unique identification feature also prescribes its punishment.
III.

THAT THE ACCUSED ARE LIABLE FOR FORGERY AND CRIMINAL BREACH OF TRUST.
By forging the electronic document, which is Karans net banking id and password in
this case the accused also cheated him of his money, thus forging for the purpose of
cheating Karan. Hence they should also be charged under section 468 of the I.P.C.
which lays down the punishment for forgery committed for purpose of cheating. They

IV.

should also be punished under Section 405 of the I.P.C. for criminal breach of trust.
THAT THE ACCUSED ARE LIABLE FOR THE OFFENCE OF MURDER.
Section 300(4) of the I.P.C. deals with murder and Section 302 of the I.P.C. prescribes
punishment for the same. In the said case, the accused are liable for the offence of
murder for murdering Karan.

15

WRITTEN SUBMISSIONS

________________________________
CONTENTION 1 . MR. MANOHAR

LAL AND

IN CRIMINAL CONSPIRACY AGAINST

MR. RAHUL GULATI

WERE INVOLVED

MR KARAN
l

Section 120A (1) of the IPC defines criminal conspiracy3 and Section 120B prescribes
punishment for criminal conspiracy4.. A conspiracy consists not merely in the intention of two
or more, but in the agreement of two or more persons to do an unlawful act, or to do a lawful
act by unlawful means.5 When two or more persons agree to carry such act into effect, the
very plot is an act in itself, and the act of each of the parties, promise against promise, actus
contra actum6, capable of being enforced, if lawful, is punishable for a criminal object or for
the use of criminal means.7
1.1 BOTH ACCUSED SHARED THE COMMON INTENTION OF MURDERING MR. KARAN
In the present case it can be seen that Rahul was a computer lover who had been forced to
take medicine. Rahul also had an eye on Mano and his uncles money which was why he
established a close friendship with Mano who himself dreamt of an opulent lifestyle. A clear
evidence of their friendship and Rahuls evil intent was when he gave money to Mano
3 Section 120A of The Indian Penal Code, 1860
4 Section 120B of The Indian Penal Code, 1860
5 Section 120A of the Indian Penal Code, 1908.
6 A contract is an act as it were against an act.
7 Fatma Bibi Ahmed Patel v. State of Gujarat & Anr; 2008(6)SCC789; Quinn v. Leathem; 1901 AC
495 at 528; Mulcahy v. Reg (1868) L.R. 3 H.L. 306; Ajay Agarwal Vs. Union of India and Ors; 1993
AIR 1637, 1993 SCR (3) 543.

continuously and later, suddenly demanded it back and pressurised Mano to do so. Moreover,
he instigated Mano slightly by saying that he could hack in to his fathers account and transfer
money without a trace. Meanwhile, Karan had developed drinking habits and this was disliked
by Mano yet he continued to support Karan so as to gain his trust. Also, during this time,
Rahul started coming to Manos house for sleepovers inspite of their relations being strained.
Here, they both transferred money from Karans account via the keylogger and moreover,
Raghav has stated that he saw them both working on the computer continuously and thus
Karan got a taste of the blood and this activity occurred on a few more occasions. Later on,
things started to take a turn at Karans as once Devika accused him of being close to Karan
only for his money and while Karan laughed at the same, Mano felt upset and left. Later, the
humiliation he faced in class for defaulting in payment of semester fees added fuel to the fire
and the resultant spat at home triggered the conspiracy and his desire to be the master of his
own fate which could be seen from Devikas statement which shed light on Manos desire to
be his own master and hence getting rid of dependency. The next day, when Karan was tearyeyed and sad, Mano was stone-faced and did not show any reaction which shows that Karans
actions were too late and when asked to transfer money he transferred extra money so as to
execute his plan. Thus, it can be clearly seen that they both conspired to kill Karan; Mano to
live an opulent, independent life and Rahul to fulfil his tech dreams. Thereon, Mano became
the active member of their association.
The ingredients of the offence of criminal conspiracy are that there should be an agreement
between persons who are alleged to conspire and the said agreement should be for doing an
illegal act or for doing by illegal means an act which itself may not be illegal 8. Generally a
conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the

8 Ram Jethmalani and D.S. Chopra, The Indian Code 552 (Thomson Reuters, 1 st edn., 2014)

same9. The prosecution craves leave to rely more upon circumstantial evidence. The
conspiracy can be undoubtedly proved by evidence, either direct or circumstantial 10. Mere
evidence as to transmission of thoughts sharing the unlawful design may be sufficient. In most
cases proof of conspiracy is largely inferential though the inference may be founded on solid
facts. Surrounding circumstances and antecedent or subsequent conduct, constitute relevant
material11. To bring home the charge of conspiracy within the ambit of Section 120B of the
IPC it is necessary to establish that there was an agreement between the parties for doing an
unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence
and, therefore, from established facts inference could be drawn but there must be some
material from which it would be reasonable to establish a connection between the alleged
conspiracy and the act done pursuant to the said conspiracy 12. It has been held in the case of
State of H.P. vs. Krishan Lal Pradhan13 that every one of the conspirators need not take active
part in the commission of each and every one of the conspirational acts. Moreover, this has
been supplemented in the case of State vs. Nalini14 where it was held that where in pursuance
of the agreement the conspirators commit offences individually or adopt illegal means to do a
legal act which has a nexus to do the object of conspiracy, all of them will be liable even if

9 Shivanarayan Laxminarayan & Ors. State of Mahrashtra & Ors.; (1980) 2 SCC 465
10 Kehar Singh vs. State (Delhi Admn.) ; AIR 1988 SC 1883 at p.1954
11 Noor Mohammad Yusuf Momin vs. State of Maharashtra ; AIR 1971 SC 885
12 Vijayan vs. State of Kerala ; AIR 1999 SC 1086
13 AIR 1987 SC 773
14 AIR 1999 SC 2640

some of them have not actively participated in commission of those offences 15. In a case
before the SC it was again substantiated by the Honble Court.
Section 10 of the Indian Evidence Act, 1872 talks about things said or done by conspirator in
reference to common design16. Section 10 of the Evidence Act must be construed in
accordance with the principle that the thing done, written, spoken in carrying out the
conspiracy is receivable as a proof of the conspiracy 17. This has been further elaborated in the
case of Sardul Singh Caveeshwar vs. State of Maharashtra18 where it was held that once prima
facie evidence exists as to whether a person was a party to the conspiracy, anything said, done
or written by the conspirator with reference to the common intention, is relevant for proving
the other person was a party to it.
Section 154 of the Indian Evidence Act, 1872 deals with the questioning and testimonies of
witnesses19. According to the section, evidence of hostile witness can be relied upon by the
prosecution to the extent to which it supports the prosecution version of the incident20. Thus
there is no legal bar to conviction on the basis of these testimonies21.
Section 6 of the Indian Evidence Act, 1872 deals with the relevancy of facts forming part of
same transaction22.
15 Mohd. Usman Mohd. Hussain vs. State of Maharashtra ; 1981 CrLJ 588 SC
16 Section 10 of the Indian Evidence Act, 1872
17 Mirza Akbar vs. King Emperor ; AIR 1940 PC 176 at p. 180
18 (1964) 2 SCR 378
19 Section 154 of The Indian Evidence Act, 1872
20 Prithvi vs. State of Haryana ; (2010) 8 SCC 536
21 Ramkrushna vs. State of Maharashtra ; (2007) 13 SCC 525
22 Section 6 of The Indian Evidence Act, 1872

It is humbly submitted before the Honorable Court that all the facts and circumstances
corroborating with each other indicate that both the accused acted in collaboration to kill
Karan for fulfilling their motives.

________________________________
CONTENTION 2. THE ACCUSED
SECTION

HAVE COMMITTED THE OFFENCE OF

66 AND 66C OF INFORMATION TECHNOLOGY

ACT

HACKING

UNDER

2000

In the case at hand, Manohar and Rahul, committed various offences under section 43 and
66C of the Information Technology Act, 2000. Section 6623 prescribes the punishment for the
offences committed under section 43, whereas section 66C apart from describing the offence
of dishonest use of unique identification feature also prescribes its punishment. Thus
Manohar and Rahul are liable to be punished under Section 66 and 66C of the Information
Technology Act.
2.1 THE ACCUSED GAINED UNAUTHORISED ACCESS INTO THE VICTIM S COMPUTER
AND ONLINE BANKING ACCOUNT
In Kumar V. Whiteley24, the accused logged in to the Joint Academic Network, (JANET) as if
he was the authorised user, thereby causing a loss of Rs. 38,482 to the authorised subscribers.
The accused was held liable under section 66 of the Information Technology Act, 2000. In
this case, Manohar and Rahul committed various computer related offences, starting on a day
when Rahul came over to Karans house for a sleepover. They gained unauthorised access to
23 Section 66 of the Information Technology Act, 2000.
24 http://www.slideshare.net/NIIConsulting/it-act-2000-penalties-offences-with-case-studies last
accessed on 26th July 2015

Karans computer, then they inserted the key logger device and installed its software into the
computer and used it to decrypt (extract) Karans online banking password and transfer
various amounts of money at various times to Rahuls account. These offences are punishable
under section 66 and 66C of the Information Technology act, 2000.
Under section 66C of the Information Technology Act, 2000 any person who makes a
fraudulent or dishonest use of any electronic signature, password or any unique identification
feature of any other person is an offence. It also prescribes the punishment for this offence.
In Vinod Kaushik & Ors. V. Madhvika Joshi & Ors. the respondent accessed her husbands
and father-in-laws email ids by using their password. The respondent was held liable for
violating section 66C. Similarly in Saroj Malik V. Girish , the respondents were held liable
for violating section 66C of the Information Technology Act, 2000.
2.2 THE ACCUSED KNOWINGLY INTRODUCED A COMPUTER CONTAMINANT INTO THE
VICTIMS COMPUTER
Under Section 43 of the Information Technology Act, 2000 25securing unauthorised access to
a computer or computer system26 or downloading, copying or extracting data from the
system27 or introducing a computer contaminant or virus into the computer system 28 qualify
as offences.
In Abhinav Gupta V. State of Haryana29, the petitioner was accused of hacking and gaining
access to confidential information, of his former employer while in its employment, and
forwarded the details to one of his employers competitors. In another case, better known as
25 Section 43 of the Information Technology Act, 2000
26 Section 43(a) of the Information Technology Act, 2000.
27 Section 43(b) of the Information Technology Act, 2000.
28 Section 43(c) of the Information Technology Act, 2000.
29 2008 Cri.L.J. 4536.

the Mphasis BPO fraud four employees obtained pin codes from customers in an
unauthorised manner and used these pin codes to transfer various sums of money from the
accounts of those customers amounting to a total of $ 4,26,000. The court held that due to the
unauthorised nature of access to the accounts of these customers, Section 43(a) would be
applicable30. Similarly when they secured unauthorised access to Karans computer, they
committed an offence under section 43(a).
In the case, Saroj Malik V. Rahul P Shah 31, the respondents had copied a domain name (a web
domain) and were held to be liable for violation of Section 43(b) of the Information
Technology Act. Similarly in a case in Raigarh32, Chattisgarh an email was used to hack into
an SBI Branchs system to capture the username and password of the Dial-Up connections
and send them to a specific email address. The accused was held liable under section 66 for
violating Section 43(b) of the IT Act.
2.3 THE ACCUSED COMMITTED ARE LIABLE TO BE PUNISHED UNDER SECTION 43 OF
INFORMATION TECHNOLOGY ACT, 2000
Rahul and Manohar violated section 43(b) when they decrypted or in other words extracted
Karans net banking password using the key logger. Manohar and Rahul also introduced a
computer contaminant, i.e. the key logger device and software, thereby violating section
43(c) of the Information Technology Act, under which introducing a computer contaminant
into a computer system is prohibited. In the same case 33, the respondent took up a very
interesting mode of operation. He sent a mail with an attachment which was basically a
30 http://www.slideshare.net/NIIConsulting/it-act-2000-penalties-offences-with-case-studies last
accessed on 26th July 2015
31 2011 SCC OnLine CyAT 9
32 Pavan Duggal, Cyber Law The Indian Perspective 311 (Saakshar Law Publications, New Delhi,
2nd edn.)
33 Ibid

computer contaminant that captured information. The respondents were held liable for
violating section 43(c) of the Information Technology Act.
A Computer contaminant means any set of computer instructions that are designed to modify,
destroy, record, transmit data or programme residing within a computer, computer system or
computer network or by any means to usurp the normal operation of the computer, computer
system or computer network34. In the case at hand, Rahul introduced a key logger device as
well as its software into Karans computer. Though the key logger device does not come
under the definition of a computer contaminant but its software does. Any software is a set of
computer instructions. The key logger software was used by Manohar and Rahul to decrypt
Karans net banking password, thus the key logger software, i.e. a set of computer
instructions was used to record data, which is Karans password. Thereby the key logger
software falls within the definition of a computer contaminant. The presence of the key
logger software in the hard disk of Karans computer is admissible as an evidence under
Section 3(2) of the Indian Evidence Act, 1872, which defines Evidence and covers within
its ambit electronic records and other documents. Further reliance is placed on expert witness,
Hashmeets statement, which is also admissible under section 3(2) of the Indian Evidence
Act, 1872. Whether a particular action of introducing a computer contaminant or virus is
done intentionally or unintentionally or with or without any knowledge, the legal liability for
damages by way of compensation remains the same 35. Hence, though Manohar and Rahul
intended to transfer money from Karans account to Rahuls account, their intention need not
be proved to hold them liable under this section. Both of them will be liable for violating
section 43(c) of the Information Technology Act, 2000.Thus Manohar and Rahul should be

34 Explanation (i) to Section 43 of the Information Technology Act, 2000.

35 Pavan Duggal, Cyber Law The Indian Perspective 211 (Saakshar Law Publications, New Delhi,
2nd edn.)

held liable for violating this section by using Karans net banking id and password to transfer
various amounts of money to Rahuls account

_______________________________
CONTENTION 3. THE ACCUSED MR. MANOHAR LAL
LIABLE FOR

AND

MR. R AHUL GULATI

ARE

FORGERY AND CRIMINAL BREACH OF TRUST

Manohar and Rahul are liable for punishment of forgery as under section 465 of the I.P.C. 36,
forgery is defined as making any false documents or electronic record with the intent to cause
damage to any person or to commit fraud under section 463 of the IPC. By forging the
electronic document, which is Karans net banking id and password in this case they also
cheated him of his money, thus forging for the purpose of cheating Karan. Hence they should
also be charged under section 468 of the I.P.C. which lays down the punishment for forgery
committed for purpose of cheating.
3.1 MANOHAR AND RAHUL INTENDED TO CHEAT KARAN
In order to constitute an offence of forgery, the ingredient of mala fide intention must be
satisfied. In Sukanti Choudhury V. State of Orissa 37, there existed allegations of forgery of
High School Certificates issued to the petitioner by the Board of Secondary Education, Orissa
for the purpose of cheating. The offence of cheating as defined under section 415 of the I.P.C.
36 Indian Penal Code, 1860
37 2013 SCC online Ori 9

10

requires essential element of deception as well as fraudulent or dishonest inducement by the

accused. While analyzing the provisions under sections 420 and 415 of the I.P.C. it has been
pointed by the Supreme Court in Inder Mohan Goswami & Anr. V. State of Uttaranchal &
Ors.38 that it is the intention which is the gist of the offence of cheating. Similarly, it has been
pointed out by this Court in Muralidhar Satpathy V. State of Orissa 39 that guilty intention is an
essential ingredient of the offence of cheating. In order to constitute offence punishable under
section 420 of the I.P.C., intention to deceive should be in existence at the time when
inducement was offered. Forgery requires that a false document must be made with intent to
cause damage or with intent to commit fraud. Under section 464 of the I.P.C. making of a
false document for the purpose of forgery must be with dishonest or fraudulent intention.
Section 471 of the I.P.C., providing for punishment for the offence of using of forged
document as genuine, postulates that the accused knew or had reason to believe that it was a
forged document and also that accused used it fraudulently or dishonestly. Use of a forged
document dishonestly or fraudulently shall arise only when accused uses the document with
intention of causing wrongful gain or wrongful loss or to defraud40.
In the present case, Rahul had inserted a keylogger in Karans computer, which allowed
Rahul and Manohar to decrypt Karans online banking password and transfer amounts of
money from Karans bank account by forging his net banking id and password, without his
knowledge or permission. This clearly highlights the mala fide intentions of Rahul and
Manohar.
3.2 THE ACCUSED MISAPPROPRIATED THE VICTIM S PROPERTY ENTRUSTED TO HIM

38 AIR 2008 SC 251

39 2007(I) OLR 611
40 Suresh Lalchand Lulla V. Sudhis Talpade 1992 (3) Bom CR 394

11

In the present case, there also exists an element of criminal breach of trust. There existed a
relationship of trust between the victim and the accused. In order to come closer to the victim,
the accused would support the victim and provide emotional support, especially when his
relations with the rest of his family had become strenuous. The mala fide intention of the
accused became apparent to the victims wife Devika, and on one occasion she even
remarked how the accused was close to the victim only because he was after the victims
money. This statement shows that the accused wanted to gain the trust of the victim and then
misappropriated it to his own advantage. The accused was successful in doing so and this is
apparent from the incidents wherein the victim had allowed the accused to transfer money
from the victims account to his account. The existence of a strong bond of trust between the
two is further strengthened when we come to know of the fact that the victim had taken a two
crore policy and named the accused as the benefactor in case of his death, to which none
other than the accused was privy.
Section 405 of the I.P.C. defines criminal breach of trust as an act of any person who is in any
manner entrusted with property, dishonestly misappropriates or converts to his own use that
property in violation of any legal contract, express or implied, which he has made touching the
discharge of such trust, commits criminal breach of trust. In Asoke Basak V. State of
Maharashtra41, the Honble Supreme Court held that in order to constitute an offence of criminal
breach of trust the following ingredients must be satisfied:
a) A person must be entrusted with property, or with any dominion over property;
b) That such person should dishonestly misappropriate or convert to his own use that
property;
c) That such dishonest use or disposal of that property should be in violation of any
direction of law prescribing the mode in which such trust is to be discharged, or of any

41 (2010) 10 SCC 600; Coco V. A.N. Clark Engineers Ltd. (1969) 2 R.P.C. 41

12

legal contract, express or implied, which he has made touching the discharge of such
trust, or wilfully suffers any other person so to do, commits criminal breach of trust.
In R Venkatkrishnan V. Central Bureau of Investigation 42, the Supreme Court held that the terms
of Section 405 was very wide and that apply to anyone who is entrusted with property or
dominion over property. The court held that if such person wilfully misappropriates or converts
the property entrusted to him, he commits criminal breach of trust. As stated above, the accused

was entrusted with dominion over the victims property and dishonestly misappropriated the
victims property for his own benefit and caused wrongful loss to the victim.
In Onkar Nath Mishra V. State (NCT of Delhi)43, the Honble Supreme Court noted that in the
commission of the offence of criminal breach of trust, two distinct parts are involved. The
first consists of the creation of an obligation in relation to the property over which dominion
or control is acquired by the accused. The second is a misappropriation or dealing with the
property dishonestly and contrary to the terms of the obligation created. As previously stated,
the accused accessed Karans online banking account by using the keylogger and transferred
sums of money on several occasions. Notwithstanding that, Karan had entrusted Manohar
with permission to transfer small amounts of money, provided that Manohar kept Karan
informed about the same. As per the factsheet, the accused fraudulently transferred Rs. 2.5
lakhs from Karans bank account as opposed to the sum of Rs. 2.25 lakhs for which he had
authority to transfer.
In Chelloor Mankkal Narayan Ittiravi Nambudiri V. State of Travancore 44, the Honble
Supreme Court held that, to constitute and offence of criminal breach of trust it is essential
that the prosecution must prove first of all that the accused was entrusted with some property
42 2009 SCC 737; Cranleigh Precision Engineering Co. Ltd. V. Bryant (1956) 3 All England Report
301
43 (2008) 2 SCC 561
44 1953 SC AIR 478

13

or with any dominion or power over it. It has to be established further that in respect of the
property so entrusted, there was dishonest use or disposal in violation of a direction of law or
legal contract, by the accused himself or by someone else which he willingly suffered to do.
Thus, the prosecution states that the accused was entrusted with dominion or power over the
victims property, i.e. his computer and bank account, and that there was a dishonest use in
violation of an implied legal contract by the accused himself.

________________________________
CONTENTION 4. THE

ACCUSED ARE LIABLE FOR THE OFFENCE OF

HOMICIDE AMOUNTING

TO

MURDER

UNDER SECTION

300

CULPABLE

PUNISHABLE

UNDER

SECTION 302
P

Section 300(4) of the IPC reads as Except in the cases here in after excepted, culpable
homicide is murder, if the act by which the death is caused is done with the intention of
causing death, or; if the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Under the scheme of the IPC, culpable homicide is genus and murder its species. Thus all
murder is culpable homicide but all culpable homicide is not murder 45. There are

45 Veeran vs. State of M.P. ; (2011) 11 SCC 367

14

differing degrees of culpable homicide namely, first, second, third 46. The first degree culpable
homicide is defined as murder under Section 300 of IPC47.
Cases like the present one rely enormously on circumstantial evidence. When evidence is of a
circumstantial nature, circumstances for conclusion of guilt should be established 48 and facts
should be consistent with hypothesis of guilt of accused 49. For determining the usefulness of
circumstances, regard must be had to the totality of the circumstances 50. Individual
circumstances considered in isolation and divorced from the context may by themselves
appear innocuous51. It is only when the various circumstances are considered conjointly that it
becomes possible to understand them. Hence there must be a chain of events which does not
leave any reasonable ground for a conclusion consistent with innocence of accused 52. It must
show that within all human probability the act must have been done by the accused 53.Clause
(4) of Section 300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as distinguished from a particular
person or persons being caused from his imminently dangerous act, approximates to a
practical certainty54.Such knowledge on the part of the offender must be of the highest degree
46 Ruli Ram vs. State of Haryana ; (2002) 7 SCC 671
47 Chacko vs. State of Kerala ; (2004) 12 SCC 269
48 Shivaji Sahebrao Bobade vs. State of Maharashtra ; AIR 1973 SC 2622
49 Ramgopal vs. State of Maharashtra ; AIR 1972 SC 656
50 Naseem Ahmed vs. Delhi Admin ; (1974) 2 SCR 694 (696)
51 Janeshwar Prasad vs. State of U.P. ; 2013(3) ALJ 222
52 Tufail vs. State of Uttar Pradesh ; (1969) 3 SCC 198
53 Hanumant vs State of Madhya Pradesh ; AIR 1952 SC 343
54 Budhi Lal vs. State of Uttarakhand ; AIR 2009 SC 87

15

of probability55, the act having been committed by the offender without any excuse for
incurring the risk of causing death or such injury as aforesaid 56.In this case Manohar, the
accused, as shown in many instances and testified by Dr. Deshpandey ,possesed good
knowledge about the medicines,and also knew the medical history of Karan. He had
knowledge that his act of injecting air bubbles via intravenous) will in all probability cause
death It has been held that although this clause is usually invoked in those cases where there
is no intention to cause the death of any particular person 57. The clause may also be used in
those cases where the person knows that the act is likely to cause death or such bodily injury
as is likely to cause death.58
Section 45 of the Indian Evidence Act, 1872 deals with opinions of experts59.
Mano and Rahul wanted to kill Karan. Manohars motive was to secure the future on his
hands whereas wanted to fulfil his dreams of becoming a tech-guru. Manohar was looking for
an opportunity to kill Karan and for that, he transferred extra Rs. 25000 to his account as
security money to execute the plan. As Manohar was a very bright student( according to Dr.
Deshpandes testimony) , it could be expected out of him to know a little about the medicine.
Moreover Manohar himself testified before the Investigating Officer that he had administered
Angispan via intravenous as he had practiced it on alcoholics in Altis hospital. On August 3,
Karans condition worsened and this was the window of opportunity for Manohar who seized
it. He was well versed with medicines and sent Raghav to buy the same. The pharmacist has
testified that the pharmacy has a lot of customers so in this case, it could be reasonably
55 Laxminath vs. State of Chattisgarh ; AIR 2009 SC 87
56 Sunder Lal vs. State of Rajasthan ; (2007) 10 SCC 371
57 Dev Raj vs. State of Punjab ; AIR 1992 SC 950
58 Indya Sega Valvi vs. State of Maharashtra ; 2001 CrLJ 4804 (Bom)
59 Section 45 of The Indian Evidence Act, 1872

16

expected that the time interval was about 15-20 mins. This time was used by Manohar to
inject air bubbles slowly in the veins of Karan via intravenous. This was done by using 3
syringes. In the report of Investigating Officer 4 used syringes were found. All the prescribed
medicines of Dr. Choudhary were orally administered and syringe was used for giving
Angispan. He slowly injected air bubbles which lead to air embolism in the artery thereby
causing blockage to oxygen rich blood reaching the heart. Damage to the heart led to
Arrhythmia which further led to cardiac arrest as stated in forensic report.
Thus this act of Manohar will fall under Section 300(4) of IPC because it fulfils all the
requisites of this clause as stated before. And for Mr. Rahul Gulati Acc to section 34 of IPC
He is equally liable as Mr. Manohar lal.

17

PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed that this Court of Sessions be pleased to adjudge and
declare that:

That the accused are guilty of the offence of criminal conspiracy which is punishable
under Section 120B of the I.P.C.

That the accused persons have committed an offence under Section 66 and 66C of
Information Technology act 2000

That the accused are guilty under Section 468 and section 405 of the Indian Penal
Code, 1860, for the offence of Forgery and Criminal Breach of Trust respectively.

That the accused be charged and punished for conspiring to commit murder ,
punishable under section 302 of the Indian Penal Code, 1860.

The Court may pass any other order that it deems fit in the interest of justice, equity and
good conscience.

18

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Date:
Place: Durg, Xanadu, Bharat

S/d
(Counsel on behalf of the
Prosecution)