THE 4th NATIONAL MOOT COURT COMPETITION, 2013 FACULTY OF LAW, JAMIA MILLIA ISLAMIA, NEW DELHI 12th-14th

April, 2013
MOOT PROBLEM
Forum: The Honble Supreme Court of India. Nature: SLP (Criminal) converted to Criminal Appeal. Stage: Final Arguments. Facts: Ajay Kumar worked as an Investment Banker at the New Delhi office of MNC Inc., one of the leading financial consultancy firms in the world. He was married to one Ms. Ajitha, who was once his secretary at the MNC Inc. However, after about 2 years of their marriage, there were rumours about Ms. Ajitha having illicit affair with one Mr. Guruprasad, who also worked at MNC Inc., and in fact was supervising Ajays work at the firm. This led to immense friction between Ajay and Ms. Ajitha, which consequently resulted in Ajitha moving out of the matrimonial house and living separately in a rented house at Jor Bagh, New Delhi. Thereafter she filed for divorce, before the Family Court, Saket Court Complex, New Delhi, alleging therein that she was subjected to incessant physical and mental torture at the hands of Ajay and that she had reasons to believe that he was having an illicit relationship with other women.

It was during the pendency of the said divorce petition that on the morning i.e. on January 09, 2011, Ajay was found dead with bullet wounds on his chest and his body was dumped near Chattarpur Farms. The police recorded an FIR under Sections 302, 325, 341, 342, 352, 363, 365 of the Indian Penal Code, 1860 against unknown persons and began investigation. Upon questioning the relatives and neighbours of Ajay, including Ajitha, the Investigating Officer came to know about the pending divorce case and also about the alleged illicit

relationship between Ms. Ajitha and Mr. Guruprasad. The Police arrested Ms. Ajitha and Mr. Guruprasad as suspects and were granted a 14 days police custody by the Court.

During interrogation, Ms. Ajitha claimed that she was visiting her parents in Rajkot from January 5 to 9, 2011, and had returned only on the evening of January 09, 2011. She showed her flight tickets as well as the boarding pass issued by the airline as a proof of her defence of alibi. Mr. Guruprasad however, on the other hand, offered to turn approver for the prosecution and gave a statement before the Investigating Officer stating therein that it was he who had shot Ajay with a gun given to him by Ms. Ajitha and that she had helped him dispose off the body in Ajays car. The statement of Mr. Guruprasad made to the Investigating Officer, to the extent relevant is given below

I was visiting Ajithas residence at Jor Bagh on the night of January 08, 2011. Unfortunately Ajay also came over to Ajithas place on that particular night unannounced and saw us (Ajitha and me) in a compromising position after which a heated argument ensued between Ajay and Ajitha. Ajitha, apprehending to save herself pulled out a revolver from her drawer, and gave it to me and told me to shoot Ajay. Seeing this, Ajay grabbed a table lamp that was near his right hand and headed towards me in an intimidating manner. I, fearing the safety of my own and Ajithas life, shot 3(three) bullets at Ajay, immediately after which he collapsed on the ground. After assuring ourselves that Ajay was dead, we dragged his body into his own car, which I drove to Chhatarpur Farms, followed by Ajitha who drove my car. We dumped the dead body of Ajay along with the weapon and the car at a secluded location at Chattarpur Farms, and returned to Ajithas house in my car.

The above statement though made in police custody, was made in the presence of a Magistrate. The Police during investigation also recorded statements of 2 employees of MNC Inc. who stated in their opinion that Mr. Guruprasad & Ms. Ajitha were more than friends.

The Police searched the area where the body of Ajay was found but could not recover any weapon from there or from the residence of Mr. Guruprasad & Ms. Ajitha. Further, only a single tyre mark was found at the place where Ajays body was found. The Police a lso could not recover the table-lamp, which according to Mr. Guruprasad was grabbed by Ajay as a weapon to assault him. Also no other finger prints were found inside Ajays car except his own. Basing its entire case on the confessional statement made by Mr. Guruprasad, the Police filed a charge-sheet against Ms. Ajitha before the Magistrate. Upon committal and placing the case for framing of charges against Ms. Ajitha, Mr. Guruprasad retracted from his statement and claimed to be innocent of all the charges levelled against him in the charge-sheet, and demanded that he be put to trial. Similarly, even Ms. Ajitha denied all the charges and claimed innocence. After hearing the prosecution and the defence counsel, the Ld. Sessions Court recalled the conditional pardon and directed the framing of the following charges against the accused persons Qua Mr. Guruprasad: Murder Culpable homicide Destruction of evidence Criminal Conspiracy Giving false information about an Offence committed

Qua Ms. Ajitha: Abetment of murder Destruction of evidence Criminal conspiracy

Ms. Ajitha preferred a petition for quashing of the charges framed by the Ld. Sessions Court before the Honble High Court of Delhi under Section 401 of the Code of Criminal Procedure, 1973. The Honble High Court dismissed the same after hearing arguments submitted by both, the petitioner Ms. Ajitha as well as the Government Counsel representing the respondent, State of Delhi NCT. The said petition was dismissed by a non-speaking order and no reasons were given for the dismissal of the same.

Ms. Ajitha has now filed a special leave petition before the Honble Supreme Court of India challenging the order of the Honble Delhi High Court, whereby the petition of Ms. Ajitha came to be dismissed. The Honble Apex Court was pleased to grant special leave to appeal and the parties filed their respective pleadings. The matter is now posted for final arguments before the Honble Supreme Court. The main issues raised in the special leave petition are as follows 1. Whether the Honble High Court was justified in refusing to exercise its powers under Section 401 of the Code of Criminal Procedure, 1973? 2. Whether a non-speaking order can be sustained in law? 3. Whether confession of an approver can be retracted and in what manner at the stage of S 227/228 of CrPC? 4. Whether a retracted confession by an approver may be used as evidence against the other accused?

Note: Any other issues that the Counsels may wish to address before the Honble Court.