Memorial For The Prosecution

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT
COMPETITION, 2013
BEFORE THE COURT OF SESSIONS

AT PANAJI, GOA
S.C. NO.467 OF 2013
STATE OF GOA
(PROSECUTION)
v.
MAJ. (RETD.)J.S.RANA
(DEFENCE)
FOR OFFENCES CHARGED UNDER:

SECTION 396 READ WITH SECTION 302 OF THE INDIAN PENAL CODE, 1860
UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE
MEMORANDUM ON BEHALF OF THE PROSECUTION
ii
SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
TABLE OF CONTENTS
TABLE OF CONTENTS
Table of Contents
ii
List of Abbreviations
iii
Index of Authorities
iv
Table of Cases
iv
Books
vi
Lexicons
vii
Websites
vii
Statutes
vii
Statement of Jurisdiction
viii
Statement of Facts
ix
Statement of Charges
Summary of Arguments
xi
Arguments Advanced
Issue-I
Whether Maj Rana is guilty of Dacoity?
Issue-II
Whether Maj Rana is guilty of Murder?
Prayer
16
iii
LIST OF ABBREVIATIONS
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
iv
INDEX OF AUTHORITIES
TABLE OF CASES:
1.
Amar Malla v State of Tripura, AIR 2002 SC 3052
2.
Ambalal v State of Rajasthan, 2003 Cr LJ 115
3.
Asha v State of Rajasthan, AIR 1997 SC 2828
4.
Badshah Singh v State, AIR 1958 All 677
5.
Bakshish Singh v State of Punjab, AIR 1971 SC 2016
6.
Bhanwar Singh v State of MP, (2008) 16 SCC 657
7.
Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790
8.
Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1
9.
Deonandan Mishra v State of Bihar (1955) 2 SCR 750
10.
Gopal Naidu v. Emperor AIR 1923 Mad 523
11.
Hari Singh v State of Rajasthan, AIR 1997 SC 1505
12.
Harish Chandra Thange v State of Maharashtra, AIR 2007 SC 2957
13.
Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630
14.
15.
16.
17.
Joginder Singh v State of HP, (1995) 1 Cr LJ 124

Jugal Gope v State of Bihar, AIR 1981 SC 612
Kalua v. State of UP, AIR 1958 SC 180
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883
18.
Krishna Pillai v State of Kerala, AIR 1981 SC 1237
19.
Laxman v. State of Maharashtra, AIR 1974 SC 1803
20.
21.
22.
Leela Ram v. State of Haryana AIR 1999 SC 3717

Madhusundan Das v Narayanbai, AIR 1983 SC 114
Md. Badaruddin v. State of Assam, 1989 Cr LJ 1876 (Gau)
v
23.
Md. Idrish v. State, 2004 Cr LJ 1724 (Raj)
24.
MO Shamshudin v State of Kerala, (1995)3 SCC 351
25.
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
26.
Nath Singh v State of UP, 1980 SCC (Cr) 968
27.
Niranjan Das and Ors. v. Giridhari Das and Anr., 68 (1989) CLT 746
28.
Rahimal v. State of Uttar Pradesh,1992 Cri LJ 3819 (All)
29.
Rameshwar v State of Rajasthan, AIR 1952 SC 54
30.
Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461
31.
Sajjan Kumar v. State of MP, 1999Cri LJ 4561
32.
33.
34.
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

Shajahan v State of Kerala, (2007) 12 SCC 96
Shyam Behari v. State of Uttar Pradesh, AIR 1957 S.C 132
35.
Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142
36.
State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012
37.
State of Haryana v Mewa Singh, AIR 1997 SC 1407
38.
State of Himachal Pradesh v. Lekh Raj and Anr., 1999 (9) ST 155
39.
State of Kerala v Thomas, (1986) 2 SCC 411
40.
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
41.
State of Maharashtra v Meyer Hans George, AIR 1965 SC 722
42.
State of Maharashtra v Suresh, 2000 (1) SCC 471
43.
State of Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609
44.
State of Punjab v Sucha Singh, AIR 2003 SC 1471
45.
State of Rajasthan v. Kalki and Anr., 1981 Cri LJ 1012
46.
State of U.P. v. M.K. Anthony, 1985 Cri LJ 493
vi
47.
State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840
48.
State v Dinakar Bandu (1969) 72 Bom LR 905
49.
Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601
50.
Tota Singh v State of Punjab, AIR 1987 SC 1083
51.
Ugar Ahir v State of Bihar, AIR 1965 SC 277
BOOKS:
1.
Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)
2.
Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal

Jurisprudence, (2nd Ed 1989)
3.
Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
4.
Gupte and Dighe, Criminal Manual, (7th Ed. 2007)
5.
Harris, Criminal Law, (22nd Ed. 2000)
6.
Hill, McGraw, Criminal Investigation, (4th Ed. 2004)
7.
I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)
8.
I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)
9.
II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)
10. II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)

11. II, Princeps Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)
12. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)
13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003)
14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
15. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)
17. Modis Medical Jurisprudence and Toxicology, (23rd Ed. 2010)
vii
18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology,

(6th Ed. 2002)
19. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
21. Sarkar, Law of Evidence, (13th Ed,1990)
22. Saxena & Gaur, Arms and Explosives, (10th Ed. 2012)
23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)
24. Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)
25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)
LEXICONS:
1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)
WEBSITES:
1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)
viii
STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
The Honble Court has jurisdiction to try the instant matter under Section 177 read with
Section 209 of the Code of Criminal Procedure, 1973.
Section 177:
177. Ordinary place of inquiry and trialEvery offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.
Read with Section 209:

209. Commitment of case to Court of Session when offence is triable exclusively by itWhen 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.
ix
STATEMENT OF FACTS
STATEMENT OF FACTS
1. On the night of 31st December, 2012, the Montecito Hotel & Casino owned by Ms Shonli
Gujral, on the ship Aurora located on river Mandovi , hosted a high stakes poker game on
the Octavious floor. The chain of events that transpired that night are:
i.
Post 11p.m. of that night, the Octavious vault had been breached by four men dressed
in fine suits, though while making their exit the alarm got triggered.
ii.
Subsequently the four men ran towards the deck to make an exit, and threw eight
waterproof bags overboard into a motorboat. Two of the men escaped by rappelling
into a motorboat, while the other two awaited their turn to rappel down.
iii.
Just as the remaining two were about to make their escape, Mr. Michael Barbosa
(Chief Security Officer) ordered them to stop.
iv.
Thereafter Mr. Barbosa fired a warning shot in the air, however when they still did
not stop, he fired at one mans knee and subdued him, they disobeyed the order and
one of them took a guest as hostage in order to escape; subsequently the accused,
Maj. (Retd.) J.S. Rana (Head of Operations, Security) had shot dead the other man.
v.
The police reached the scene of crime at 12.15 a.m and Ms Shonali registered an
F.I.R against the accused.
2. Bhaskar Sanyal, on 4th February, 2013 confessed to the crimes under Sec. 164 of the Code
of Criminal Procedure, and further provided incriminating evidence against the accused. The
final report of the police was made on the complicity of the accused on the 14 th March, 2013.
3. On 16th May, 2013, an interim order was passed by the Sessions Court stating that the
charges under Sec.396/302 have been read out to the accused and that the chargesheet has
been served. The accused pleaded not guilty and claimed trial. The matter is listed for final
hearing before the Sessions Court, Panaji on the 29 th May 2013.
x
STATEMENT OF CHARGES
STATEMENT OF CHARGES
CHARGE 1
Maj. (Retd) J. S. Rana has been charged under Section 396 read with Section 302 the Indian
Penal Code, 1860 for the crime of Dacoity with Murder.
xi
SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
ISSUE I
WHETHER THE ACCUSED IS
GUILTY OF DACOITY?
It is humbly submitted before this Honble Court that the accused, Maj. (Retd) J. S. Rana is
guilty of committing dacoity as he had committed the crime with 5 other members with full
intent of robbing the Octavious Vault of the 12 Crore Rupees that was being held in it on the
1st of January 2013. The accused had access to all of the necessary instruments to carry out a
successful robbery as he was the Head of Operations (Security) aboard the Montecito. And
while committing said crime the accused had committed murder, thus fulfilling all of the
elements of section 396 of the IPC.
ISSUE II
WHETHER THE ACCUSED IS
GUILTY OF MURDER?
It is humbly submitted before this Honble Court that the accused is guilty of murder as he
had committed an act of cold blooded murder on board the Montecito with many witnesses to
the actus reus. The accused had the requisite mens rea to commit said crime, and he even had
a motive to carry out said act. The shot was fired point blank in the centre of the deceaseds
head, thus showing it was indeed an execution and not an act of self defence or an accident.
Hence it is proven beyond a reasonable doubt that the crime of Murder was indeed committed
by the accused in the case at hand.
ARGUMENTS ADVANCED
ARGUMENTS ADVANCED
ISSUE-I
WHETHER MAJ RANA IS GUILTY OF DACOITY?
It is humbly contended that Maj. (Retd) J.S. Rana (hereinafter referred to as the accused) is
guilty of unlawful offences under Sec. 396/302 of the Indian Penal Code, 1860 (hereinafter
referred to as IPC). It is to be noted that the essential elements of Sec. 396 are as follows:
The dacoity must be the joint act of the persons concerned;
Murder must have been committed in the course of the commission of the dacoity1.
The pre-requisite of a dacoity will be dealt with in the present issue (Issue I), while the charge
of murder will be proved in the subsequent issue (Issue II). Dacoity2 is robbery3 committed
by five or more persons , with the abettors who are present and aiding when the crime is
committed, to be counted in the number. The ingredients of dacoity are thus as follows:
The accused committed or attempted to commit robbery[1.1]
Persons committing or attempting to commit robbery and present and aiding must
not be less than five; and [1.2]
All such persons should act conjointly4.[1.3]
Furthermore, the Prosecution humbly contends that the confessional statement of Bhaskar
Sanyal is corroborated in all material aspects [1.4] notwithstanding any discrepancies in
witness statements and the confession [1.5].
Shyam Behari v. State of Uttar Pradesh, AIR 1957 S.C.; Rahimal v. State of Uttar Pradesh,1992 CriLJ 3819
(All)
2
Sec 391, IPC
Sec 390, IPC
State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012
ARGUMENTS ADVANCED
1.1 THE ACCUSED COMMITTED OR ATTEMPTED TO COMMIT ROBBERY

Sec 118, The Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act) mandates
that all persons shall be competant witnesses, unless they are prevented from understanding
or answering the questions put to them by virtue of tender years, extreme old age, disease,
lunacy or any other cause of same kind. Given that none of the witnesses in the instant matter
fall within the exceptions enumerated under Sec 118, it is logical to conclude that all of them
are competant witnesses. Therefore, it is the duty of the Court to scrutinise the evidence
carefully and separate the grain from the chaff. 5
The Prosecution concedes that Bhaskar Sanyal (PW 2) is an interested witness i.e. a person
who wants to see the accused convicted because of his own animus or otherwise. 6 However,
it is well established that because a witness is an interested witness, his evidence cannot be
totally disregarded in toto.7 Eye-witnesses, being friends of the victim, cannot be discredited
for that reason alone. 8
The confession of PW 2 makes it evident that the accused was an active participant in
planning the entire dacoity and also aided in their entrance in the Octavious floor, by securing
relevant information9.This is further corroborated by statements from Shonali Gujral10 (PW
1) and Michael Barbossa11 (DW 4) who state that the accused had the final call on who could
Ugar Ahir v State of Bihar, AIR 1965 SC 277
Tota Singh v State of Punjab, AIR 1987 SC 1083
Madhusundan Das v Narayanbai, AIR 1983 SC 114, Krishna Pillai v State of Kerala, AIR 1981 SC 1237
Asha v State of Rajasthan, AIR 1997 SC 2828
Annexure 8, Case Details, P. 17
10
Annexure 7, Case Details, p. 14, para 1
11
Ibid, para 2
ARGUMENTS ADVANCED
be admitted to the Octavious floor of the Aurora. Moreover, the accused was entrusted with
enforcing security within the Octavious floor.
12
Therefore, the accused was privy to the
details of the security arrangement security in place, which included the rotation of guards. 13
It is also to be noted that in the process of emptying the vault, the dacoits did not face any
resistance from the guards, who claimed that some guests had lost their way. 14
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 accused15 If a false answer is offered by the accused when his attention is drawn to the
circumstance , a false answer would act as the missing link in completing the chain of
evidence.16Therefore, it is submitted before this Honble Court that the circumstantial
evidence makes it clear that the accused had hatched the plan and abetted the others in
commission of dacoity.
1.2 PERSONS PRESENT AND AIDING MUST NOT BE LESS THAN FIVE
Excluding the accused, it is seen that there were four other participants to the crime on board
the Aurora :
i.
Security on the intercom stated that they saw four men in suits carrying large
bags running towards the deck17
ii.
DW 4 saw four men in suits throwing bags from the ship 18
12
Ibid, p. 15
13
Ibid, p.14
14
Supra, n. 11, p. 15
15
Deonandan Mishra v State of Bihar (1955) 2 SCR 750; Harish Chandra Thange v State of Maharashtra, AIR
2007 SC 2957
16
State of Maharashtra v Suresh, 2000 (1) SCC 471
17
Annexure 7, Case Details, p. 15
18
Ibid
ARGUMENTS ADVANCED
iii.
Zareen Malik (DW2) s saw four men run onto the deck19
iv.
Confessional statement of PW2 states that four men were on board the Aurora
while commission of dacoity and another participant Pappu Chote, was waiting
on a motorboat to assist in the escape of the accused persons20
v.
Facts made out state that a motor boat was waiting for the accused persons 21.
From the aforementioned statements, it is evident that there were four people onboard the
ship while committing dacoity and another participant was in a motorboat assisting in the
retreat of the accused persons. Hence, apart from the accused, there were five other
participants to the crime.
1.3 ALL SUCH PERSONS SHOULD ACT CONJOINTLY
The word conjointly refers to united or concerted action of five or more persons participating
in the act of committing an offence 22. From the aforementioned arguments, it is clearly
established that the accused aided the accused persons by giving them integral information
about the security layout and assisted them in entering the Octavious floor of the Montecito.
The entire chain of events from getting on board the ship, to the escape was a well planned
and concerted effort by the accused persons. Thus, it is humbly submitted before this Honble
Court that the threshold of acting conjointly has been fulfilled.
1.4 CORROBORATION OF CONFESSION
Being an accomplice i.e. a guilty partner or associate in a crime, 23 the evidence of PW2 is
subject to the combined reading of Sec 114 and Sec 133, Evidence Act and requires some
19
Ibid, p. 16
20
Supra n. 9
21
Case Details, P. 1
22
Niranjan Das and Ors. v. Giridhari Das and Anr., 68 (1989) CLT 746
23
MO Shamshudin v State of Kerala, (1995)3 SCC 351
ARGUMENTS ADVANCED
independent corroboration in material particulars for acceptance. 24 The corroboration need

not be direct evidence but is sufficient if it is merely circumstantial evidence, 25 i.e. the
entrance into the Montecito [A], breaking into the vault [B], timing of commission [C] and
the number of people [D].
A. Entrance into Montecito
i) Confession The accused offered to secure entrance of all the accused persons.
ii) Witness statementPW1 and DW4 indicate the accused made the final call on guest list
and was supposed to scrutinize the names on the list to ensure safety.
B. Breaking into the vault
i) Confession - The accused shared information as to when the post of the guards would
change so as to ensure undetected entry.
ii) Witness statement - Accused himself verifies that he was entrusted with security of the
entire ship, along with DW 4 who states that security arrangements of the Octavious floor
was exclusively managed by the accused.
C. Time of Commission
i) Confession- Post 11:30 p.m. the accused persons started commission of dacoity.
ii)Witness statement -F.I.R. filed by PW1 states that the firing started in between 11:3011:45p.m, corroborated by DW 2 statements about gunshots fired at around 12 oclock.
D. Number of persons
As already established in issue 1.2, the confessional statement of PW 2 is verified with oral
testimony of other witnesses, with regard to the number of people perpetrating the offence.
Thus, the aforementioned chain of events stated in PW2s confession is in consonance with
the oral testimony and clearly indicate the involvement of the accused.
24
State of Kerala v Thomas, (1986) 2 SCC 411
25
Rameshwar v State of Rajasthan, AIR 1952 SC 54
ARGUMENTS ADVANCED
1.5 DISCREPANCIES IN WITNESS STATEMENTS ARE IMMATERIAL

It is contended by the defence that there exist discrepancies, between the witness statements
and the confession, with respect to the time of commission of the crime. However, in the
instant case, none of the statements contradict each other with respect to the manner in which
the crime was carried out. Neither is there any inconsistency in the chain of events which
have been narrated by the witnesses. Furthermore, since the accused persons were in the
Aurora from 11p.m. to 12a.m. there can be no other alibi for them. Thus, it is an immaterial
discrepancy.
There is bound to be some discrepancy between the narrations of different witnesses due to
errors of observation, errors of memory due to lapse of time, mental disposition and the
like.26 Trivial discrepancies ought not to obliterate otherwise acceptable evidence of eyewitnesses
27
and are not fatal for the prosecutions case28 as they do not go to the root of the
prosecution story and need not be given undue importance29.
Therefore, the Prosecution humbly submits that the Trial Court would be justified in
convicting the accused if it is shown by the evidence on record that he had participated in the
dacoity. 30
26
State of Rajasthan v. Kalki and Anr., 1981 CriLJ 1012
27
Leela Ram v. State of Haryana AIR 1999 SC 3717 ; State of U.P. v. M.K. Anthony, 1985 CriLJ 493;
Appabhai v. State of Gujarat, 1988 CriLJ 848; Sajjan Kumar v. State of MP, 1999CriLJ 4561
28
State of Himachal Pradesh v. Lekh Raj and Anr., 1999 (9) ST 155
29
Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630
30
Jugal Gope v State of Bihar, AIR 1981 SC 612
ARGUMENTS ADVANCED
ISSUE-II
WHETHER MAJ RANA IS GUILTY OF MURDER?
It is humbly contended that the accused is guilty for committing the offence of murder under
Sec 302, IPC. Sec 302 prescribes the punishment for committing murder. In order to bring a
successful conviction under this charge, however, it is pertinent to refer to Sec 300, IPC
which elucidates the essentials of murder.
A person is guilty of murder if he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in the ordinary course of nature results into death or commits an act so dangerous that
it must, in all probability cause death of that person31. The Prosecution humbly contends that
both, the actus reus [2.1] and the mens rea [2.2] of the crime are established in the instant
matter, negating any claims of private defence [2.3].
2.1 ACTUS REUS OF MURDER IS PROVEN
Actus reus is any wrongful act 32. Thus, in a case of murder, actus reus would be the physical
conduct of the accused that causes death of the victim. In the instant case, the actus reus is
established by way of witness statements [A], forensic report [B] and ballistic evidence [C].
A. Witness Statements
Bearing in mind that it is not for the prosecution to meet any and every hypothesis suggested
by the accused, howsoever extravagant and fanciful it might be, 33 it is humbly submitted
31
Sec 300, IPC
32
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006)
33
State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840
ARGUMENTS ADVANCED
before this Honble Court that the circumstantial evidence in the instant matter shows that
within all human probability, the act must have been done by the accused. 34
On the night of 31st December, 2013, 4 well dressed men breached the high-stakes Octavious
vault of Auroras Montecito hotel and casino, post 11 p.m. According to the confessional
statement of PW 2, at around 11.30-12.00 p.m., the accused shot Brij Gopal (hereinafter
referred to as the victim/deceased) in the head with his special edition Smith and Wesson
custom engraved model 60, .38 revolver 35, reaffirmed by DW 2s statement, who heard the
gunshot, alongwith DW 3s oral testimony, who saw the accused standing over the body.
In a case where murder was caused by gunshot, the witnesses did not actually see the accused
shooting but saw him lowering the gun right after they heard the gun-shot, their evidence was
held to be as good as that of eye witnesses and conviction was upheld. 36
B. Forensics
The post mortem report becomes important in cases where the cause of death is to be
established and is a matter of controversy. 37 Moreover, it is not possible for the Prosecution
in to explain each and every injury suffered by the witnesses.
38
However, for the sake of
convenience, the Prosecution feels obliged to assist this Honble Court in understanding the
intricacies of the post mortem report.
34
Bakshish Singh v State of Punjab, AIR 1971 SC 2016
35
Exhibit 1, Case Details, p. 2
36
Md. Badaruddin v. State of Assam, 1989 Cr LJ 1876 (Gau)
37
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883
38
Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461
ARGUMENTS ADVANCED
i) Size of Wounds
The entry wound in this case is a 15 mm round-shaped one, while the exit wound is a highly
irregular starry shaped wound 33 mm in size. This difference in size and appearance is
because when a bullet makes an entry into the human body, it first indents and stretches into
the skin and subsequently, depending upon the energy, effects penetration into the soft tissues
and/or bones and comes out, causing an exit wound. After entry of the bullet, the skin
partially returns to its original position and therefore, the size of the entry wound may be
smaller than the size of the bullet. 39
When a projectile transverses the skull and emerges, the aperture in the bone differs in
relation to the outer and inner tables; the defect is larger in the direction in which the bullet
travels. 40 An entrance hole bevels inward and therefore, the entrance is usually clean cut and
the defect on the inner surface of the bone is larger than the outer surface. An exit hole on the
skull is bevelled outward and is larger on the outer than on the inner surface of the
bone, 41consistent with the autopsy report in the instant matter, keeping in mind that the
gunshot wound perforated the frontalis of the deceased, causing instant death.42
ii) Appearance of the Wounds
The autopsy report by Dr Trehan indicates the presence of a wide zone of powder soot and
seared blackened skin around the entrance wound. 43 The blackening/smudging is due smoke
produced buy combustion of gun-powder, coupled with a small portion of carbonaceous
39
Parikh,CK, Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, p. 4.42 (6th ed 1999)
40
Ibid, p. 4,43
41
Ibid, p. 4.50
42
43
ibid
10
ARGUMENTS ADVANCED
matter .Even smokeless powder produces a small amount of smoke which may mark objects
at close range.44 Presence of blackening on wounds is thus consistent with firing from a very
close range. 45
Scorching (or burning/charring) is the discolouration of skin resulting from burning of the
flame or hot gases that issue from a firearm.
46
The presence of scorching/charring is a clear
indication that the fatal shots were fired at the deceased from a very close range. 47
The Prosecution humbly contends that the autopsy report merely demarcates an upper limit of
the proximity of the firearm with the deceased, with a distance of not more than 15 ft 48
between the two. This should not, however in any manner, be construed to mean that the
weapon could not have been placed at a lesser distance.
The primary requirement of pleading the defence of accident is that the act must be done with
proper care and caution.49 Thus, at a close range ,the chances of any accident50are ruled
out, given that the accused is a retired Army officer, who, by his own account, has a
considerable experience in handling weapons and killing men. In fact , such a short distance
would indicate the intention to kill.
C. Ballistics
44
Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal Jurisprudence, p. 71 (2nd ed 1989)
45
Badshah Singh v State, AIR 1958 All 677
46
Supra n 36, p. 70
47
Nath Singh v State of UP, 1980 SCC (Cr) 968
48
Annexure 8, Case Details, p.13
49
Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790
50
Sec 80, IPC
11
ARGUMENTS ADVANCED
As per the Forensic Report,51 and the Panchanama52 , 4 Hornady XTP .38 caliber bullets were
recovered from Auroras deck. The grooves on one bullet matched the Smith and Wesson
custom engraved model 60 .38 revolver, owned by the accused.
In cases where injuries are caused by fire arms, the opinion of the ballistic expert is of a
considerable importance53 and is sufficient to prove the guilt of the accused. 54 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. 55
So far as the question of the 4th bullet is concerned, it is well know that in case of tandem
bullets, the first bullet fails to leave the barrel and is ejected by the subsequently fired bullet.
The bullets are thus ejected one after another,56 which is what occurred when DW 4 fired his
standard issue Glock .38 handgun57, considering that the .38 Live Hornady cartridges
58
recovered could have been used in the Glock as well. 59
Therefore, contrary to the claims of the Defence, the presence of an extra bullet should not be
attributed to any investigational lapse on part of the police. On the other hand, since 2
bullets were fired almost at once, DW 2s testimony as to the three shots also corroborates
with the Prosecutions version of events.
51
52
Annexure 3, Case Details, p.7
53
Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601
54
Kalua v. State of UP, AIR 1958 SC 180
55
Field, C.D., Expert Evidence: Medical and Non-Medical, 4th Ed (2007)
56
Supra, n. 41, p.4.42
57
Exhibit 2, Case Details, p. 2
58
Exhibit 3, Case Details, p.2
59
12
ARGUMENTS ADVANCED
Arguendo, any lapse on part of the investigation agency would not be fatal to the case.60
Absence of blood at the spot where the eye-witness saw the accused attacking the deceased
and which was sufficiently explained did not create a doubt in the prosecution story.
61
Slight
variation between ocular evidence and medical evidence would not be a ground for
dismissing the case.62
2.2 MENS REA OF MURDER IS ESTABLISHED
Mens rea is considered as guilty intention63, which is proved or inferred from the acts of the
accused64. It is submitted that the intention to kill is established [A] in light of clear-cut
motive of the accused [B]. Arguendo, absence of motive would not be a sufficient ground to
dismiss the case [C].
A. The Accused had intention to kill
It is presumed that every sane person intends the result that his action normally produces and
if a person hits another on a vulnerable part of the body, and death occurs as a result, the
intention of the accused can be no other than to take the life of the victim and the offence
committed amounts to murder.65 Moreover, the intention to kill is not required in every case,
mere knowledge that natural and probable consequences of an act would be death will suffice
for a conviction under s. 302 of IPC. 66
60
Amar Malla v State of Tripura, AIR 2002 SC 3052, State of UP v Jagdeo , AIR 2003 SC 660
61
Joginder Singh v State of HP, (1995) 1 Cr LJ 124
62
Ambalal v State of Rajasthan, 2003 Cr LJ 115; Sudhin Chandra Barman v. State of WB Cr LJ 2006 Cal 4656
63
Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
64
State of Maharashtra v Meyer Hans George, AIR 1965 SC 722
65
(1951) 3 Pepsu LR 635
66
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
13
ARGUMENTS ADVANCED
The intention to kill can be inferred from the murder and nature of the injuries caused to the
victim. 67 Causing a serious injury on a vital part of the body of the deceased with a dangerous
weapon must necessarily lead to the inference that the accused intended to cause death or
bodily injury sufficient to cause death of the victim, and it answers to section 300 and is
murder.68Given that the accused shot the victim on the head, a vital part of the body, it is
logical to conclude that he intended to cause the death of the victim.
B. The Accused had motive to kill
Sec 8, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or
preparation for any fact in issue or relevant fact. Thus, previous threats or altercations
between parties are admitted to show motive. 69 It is further pertinent to note that if there is
motive in doing an act, then the adequacy of that motive is not in all cases necessary. Heinous
offences have been committed for very slight motive. 70
As already established in Issue I, the accused was an active participant, or rather, the
instigator of the dacoity committed on Aurora. PW 2s confession clearly highlights the
accuseds need to silence the victim in order to hide his role in the entire operation and hence,
he had the requisite motive to kill the victim.
C. Arguendo, Absence of motive is irrelevant
Assuming for the sake of argument that the accused had no motive, it is humbly contended
that absence of motive is no ground for dismissing the case. Motive is immaterial so far as the
67
Laxman v. State of Maharashtra, AIR 1974 SC 1803
68
Md. Idrish v. State, 2004 Cr LJ 1724 (Raj); Md. Sharif And Anr. v. Rex, AIR 1950 All 380; Badri v. State of
U.P., AIR 19953 All 189; Dibia v. State of U.P., AIR 1953 All 373, State of Maharashtra v. Bhairu Sattu
Berad, AIR 1956 Bom 609
69
Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482
70
State v Dinakar Bandu (1969) 72 Bom LR 905
14
ARGUMENTS ADVANCED
offence is concerned, and need not be established71as the mere existence of motive is by
itself, not an incriminating circumstance and cannot take the place of a proof72.
Therefore, absence of proof of motive, does not break the link in the chain of circumstances
connecting the accused with the crime, nor militates against the prosecution case and is not
fatal as a matter of law .73 When the circumstantial evidence on record is sufficient to prove
beyond any doubt to prove that it was the accused and no one else, who intentionally caused
the death of the accused then, motive of the crime need not be proved,74 as in the current
case.
2.3 THE ACCUSED CANNOT AVAIL RIGHT OF PRIVATE DEFENCE
In the given context, the accused claims to avail the right of private defence as per Sec 96 to
105, IPC which may extend to causing death for the purpose of defending the body or
property of another person. However, one of the foremost principles to be kept in mind is that
there must be an imminent danger giving the signal to act in exercise of the right of private
defence75 i.e. the necessity must be a present necessity, whether real or apparent 76 and thus,
private defence does not include the right to launch an offensive attack. 77 Furthermore, the
71
Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
72
State of Punjab v Sucha Singh, AIR 2003 SC 1471
73
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
74
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
75
Hari Singh v State of Rajasthan, AIR 1997 SC 1505
76
Bhanwar Singh v State of MP, (2008) 16 SCC 657
77
Shajahan v State of Kerala, (2007) 12 SCC 96
15
ARGUMENTS ADVANCED
right of private defence is available only till the apprehension to the body78 or
property79exists.
From the statements of all the witnesses, it is evident that the deceased had not actively either
assisted PW 2 in taking a hostage, nor had he presented any immediate danger to any other
person on board. It is amply clear from the statements of DW 3 and DW 4 that the accused
shot the victim after DW 4 had already apprehended PW 2 i.e. any immediate danger to DW
3 as a hostage had already subsided.
Furthermore, instead of shooting him on the head, the accused could have fired a warning
shot, or at the very least, fired at some other part of the body, given that in exercising the
right to private defence, one of the most important caveats is that no more harm than is
necessary should be caused.80 It is thus apparent that the accused exceeded his right of private
defence and any defence of necessity81 also cannot be claimed by him as an act of necessity
must be done with a bona fide intent and without any unnecessary force or violence 82.
Therefore, it is humbly submitted before this Honble Court that the accused is guilty for the
offence of murder, given that the requisite mens rea and actus reus is established from the
facts of the case, beyond a reasonable doubt.
78
Sec 102, IPC
79
Sec 103 and 105, IPC
80
State of Haryana v Mewa Singh, AIR 1997 SC 1407
81
Sec 81, IPC
82
Gopal Naidu v. Emperor AIR 1923 Mad 523
16
PRAYER
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Honble Court be pleased to:
1. Convict Maj (Retd) J.S. Rana for the offence of committing dacoity with murder
under Sections 396/302 of the Indian Penal Code, 1860.
2. Declare a sentence of rigorous imprisonment for a term which may extend to ten
years, and also be liable to fine under Section 396 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: Goa
Date: May 29, 2013
S/d_____________
PUBLIC PROSECUTOR

Memorial For The Prosecution

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT

BEFORE THE COURT OF SESSIONS

S.C. NO.467 OF 2013

FOR OFFENCES CHARGED UNDER:

UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

Whether Maj Rana is guilty of Dacoity?

Whether Maj Rana is guilty of Murder?

MEMORANDUM ON BEHALF OF THE PROSECUTION

All India Reporter

Allahabad High Court

Calcutta High Court

Criminal Law Journal

Code of Criminal Procedure

Delhi High Court

Gujarat High Court

Indian Penal Code

Madras High Court

Foot Note no.

Orissa High Court

Punjab and Haryana High Court

Patna High Court

Rajasthan High Court

Supreme Court Cases

Supreme Court Journal

Supreme Court Reporter

MEMORANDUM ON BEHALF OF THE PROSECUTION

Amar Malla v State of Tripura, AIR 2002 SC 3052

Ambalal v State of Rajasthan, 2003 Cr LJ 115

Asha v State of Rajasthan, AIR 1997 SC 2828

Badshah Singh v State, AIR 1958 All 677

Bakshish Singh v State of Punjab, AIR 1971 SC 2016

Bhanwar Singh v State of MP, (2008) 16 SCC 657

Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790

Deonandan Mishra v State of Bihar (1955) 2 SCR 750

Gopal Naidu v. Emperor AIR 1923 Mad 523

Hari Singh v State of Rajasthan, AIR 1997 SC 1505

Harish Chandra Thange v State of Maharashtra, AIR 2007 SC 2957

Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630

Joginder Singh v State of HP, (1995) 1 Cr LJ 124

Krishna Pillai v State of Kerala, AIR 1981 SC 1237

Laxman v. State of Maharashtra, AIR 1974 SC 1803

Leela Ram v. State of Haryana AIR 1999 SC 3717

MEMORANDUM ON BEHALF OF THE PROSECUTION

Md. Idrish v. State, 2004 Cr LJ 1724 (Raj)

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

Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175

Nath Singh v State of UP, 1980 SCC (Cr) 968

Rahimal v. State of Uttar Pradesh,1992 Cri LJ 3819 (All)

Rameshwar v State of Rajasthan, AIR 1952 SC 54

Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461

Sajjan Kumar v. State of MP, 1999Cri LJ 4561

Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142

State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012

State of Haryana v Mewa Singh, AIR 1997 SC 1407

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

State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)

State of Maharashtra v Meyer Hans George, AIR 1965 SC 722

State of Maharashtra v Suresh, 2000 (1) SCC 471

State of Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609

State of Punjab v Sucha Singh, AIR 2003 SC 1471