Defense Memo

Supreme Court of India
Appeal No.: 07/2016
In the matter of
State of Rajasthan
Appellant
v.
Mr. Dinesh Goyal
Respondent No. 1
Mrs. Shalini Goyal
Respondent No. 2
Mr. Suresh Goyal
Respondent No. 3
Written Memorial submitted on behalf of the Respondents

Counsel on behalf of the Respondents
IN THE HONBLE SUPREME COURT OF INDIA

____________________________________________________________________________________
TABLE OF CONTENTS
Sr. No.
1.
Particulars
Page No.
Index of Authorities
02
A. Books
B. Websites
C. Judicial Decisions
D. Dictionaries & lexicons
2.
List of Abbreviations used
03
3.
Judicial Decisions / Case Law
04
4.
Statement of Jurisdiction
08
5.
Statement of Facts
09
6.
Issue for Consideration
12
7.
Arguments
8.
Issue 1
13
Issue 2
18
Prayer
39

____________________________________________________________________________________
INDEX OF AUTHORITIES
BOOKS:
Ratanlal and Dhirajlal, The Code of Criminal Procedure, 21stEdition 2013, Lexus Nexis
by B. M. Prasad, Manish Mohan
Ratanlal&Dhirajlal, The Indian Penal Code, 34thEdition 2013, Lexis Nexis by Justice K.
T. Thomas, M. A. Rashid
Texbook on Indian Penal Code, 5th Edition 2015, Universal Law Publishing by K. D.
Gaur
Ratanlal&Dhirajlal, The Law on Evidence, 25th Edition, Lexis Nexis by B. M. Prasad,

Manish Mohan
Sarkar on Evidence, Volume 1, 15th Edition 2000, Wadhwa& Company by Sudipto

Sarkar, V. R. Manohar
Sarkar on Evidence, Volume 2, 15th Edition 2000, Wadhwa& Company by Sudipto

Sarkar, V. R. Manohar
STATUTES:
Indian Penal Code, 1860
Criminal ProcedureCode, 1908
Indian Evidence Act, 1872
DICTIONARIES AND LEXICONS:
Websters English Dictionary
Blacks Law Dictionary, 7th Edition
ONLINE RESOURCES:
www.legalpundits.com
www.judis.nic.in
www.indiankanoon.org
www.advocatekhoj.com
www.lawkhoj.com
LIST OF ABBREVIATIONS

____________________________________________________________________________________
Sr. No.
Abbreviation
Full Form
1.
v.
2.
AIR
ALL INDIA REPORTER
3.
CrLJ
CRIMINAL LAW JOURNAL
4.
CrPC
CRIMINAL PROCEDURE CODE
5.
Honble
6.
IPC
INDIAN PENAL CODE
7.
Pg
PAGE
8.
SC
SUPREME COURT
9.
Supra
10.
Volume
VOLUME
11.
ETC
ETCETRA
12.
SCR
SUPREME COURT REPORT
13.
No.
NUMBER
14.
SCC
Supreme Court Cases
15.
IEA
Indian Evidence Act
VERSUS
HONOURABLE
AS MENTIONED ABOVE

____________________________________________________________________________________
JUDICIAL DECISIONS / CASE LAW
Sr.
No.
Name of Case Law
F.N.
No.
Page
No.
Citation
Chandra Mohan Tiwari v. State of

Madhya Pradesh
13
AIR 1992 SC 891
R v. Bertrand
14
(1867) 1 PC 520
Reil v. Queen
14
10 AC 675
Makin v. Attorney General for New

South Wales
14
(1894) AC 57
Dillet, Re
14
(1887) 12 AC 459
Dal Singh v. King Emperor
10
14
AIR 1917 PC 25
Ibrahim v. King Emperor
10
14
AIR 1914 PC 155
Taba Singh v. King Emperor
10
14
AIR 1925 PC 59
Mohinder Singh v. King Emperor
10
14
AIR 1932 PC 234
10
Eswaramurthi v. King Emperor
10
14
AIR 1944 PC 54
11
Pritam Singh v. State of Punjab
12
14
AIR 1950 SC 169
12
Home Department v. Abdul Manan
13
15
(2011) 8 SCC 65
13
State Of Rajasthan v. Shera Ram
14
15
CRIMINAL APPEAL NO.1502 OF 2005
14
State of M.P. v. Bacchudas
15
15
AIR 2007 SC 1236
15
Shivaji Sahabrao Bobade v. State of

Maharashtra
16
16
1973 SCC (2) 793
16
Ramesh Babulal Doshi v. State of

Gujarat
17
16
(1996) 9 SCC 225
17
Jaswant Singh v. State of Haryana
18
16
(2000) 4 SCC 484
18
Raj Kishore Jha v. State of Bihar
19
16
(2003) 11 SCC 519
19
State of Punjab v. Karnail Singh
20
16
(2003) 11 SCC 271
20
State of Punjab v. Phola Singh
21
16
(2003) 11 SCC 58
21
Suchand Pal v. Phani Pal
22
16
(2003) 11 SCC 527
22
Sachchey Lal Tiwari v. State of U.P
23
16
(2004) 11 SCC 410
23
State of Kerala v. C.P. Rao
24
16
(2011) 6 SCC 450

____________________________________________________________________________________
24
Sanwat Singh v. State of Rajasthan
25
16
1961 AIR 715
25
N. Suriyakal v. A. Mohandoss
26
17
(2007) 9 SCC 196
26
State of Assam v. BargaDewani
26
17
(1970) 3 SCC 236
27
Central Bank of India v. Madhulika

Guruprasad Dahir
27
17
(2008) 13 SCC 17
28
Dhakeswari Cotton Mills Ltd. v. CIT
27
17
AIR 1955 SC 65
29
Dhananjaya Reddy v. State of

Karnataka
28
18
AIR 2001 SC 1512
30
Avtar Singh v. State of Punjab
28
18
AIR 2007 SC 31
31
Reddy Sampath Kumar v. State of

Andhra Pradesh
30
19
(2005) 7 SCC 603
32
State of Tamil Nadu v. Rajendra
31
19
AIR 1999 SC 3535
33
Bibi chachha
33
20
AIR 2001 SC 2274
34
Sunny Kapoor v. State (U.T of

Chandigarh)
34
20
(2006) 5 SCALE 467
35
Laxmi v. Om Prakash
36
21
AIR 2001 SC 2383
36
State of Maharashtra v. Sanjay D

Rajhans
37
21
2005 Cri LJ 120 (SC)
37
Mustafa Shahadal Shaikh v. State of

Maharashtra
38
22
Ram Singh v. State of Haryana
39
23
Vadala Vinay Kumar v. St. of A. P.
40
23
40
Kaliyaperumal v. State of Tamil Nadu
41
23
2003 RCC 733 (SC)
41
State of Karnataka v. H.S. Srinivasa

Iyengar
42
24
(1996) 2 ALT Cri 12, 1996 CriLJ
42
Mohammad Haman v. State
43
24
(2002)7 SCC 414
43
State of Andhra Pradesh v. Kalidindi

Sahadevudu
44
24
44
Suresh Kumar v. State of Haryana
45
24
1993 Cr. LJ 1400 (P&H)
45
Ashok Debbarma v. State of Tripura
46
25
(2014) 4 SCC 747
46
Krishnan and another v. State

represented by Inspector of Police
47
25
(2003) 7 SCC 56
38
39
(2012) 11 SCC 397

(2008)4 SCC 70
2006 (1) ALD Cri 530
2012 CrLJ 2302(AP)

____________________________________________________________________________________
47
Gurditta Singh v. State of Rajasthan
48
25
1992 Cr.L.J. 309 at pp.314,318,319
48
Gurnam Singh v. State of Haryana
49
25
1998 Cr.L.J. 3694 at 3700 (P.&H.)
49
Raj Rani v. State of Haryana
50
25
2006(1) East Cr.C. 70 at p. 71 (SC)
50
Davinder Singh v. State of Punjab
51
25
2006(1) S.C.C.(cr.) 1w34 at p. 137
51
State of Maharashtra v. Ashok

Chotelal Shukla
52
26
(1997) 11 SCC 26
52
Vidhya Devi v. St of Haryana
53
27
(2004) 9 SCC 476
53
State of A.P v. Raj Gopal Asawa
54
28
2004 Cri LJ 1791
54
Kans Raj v. State of Punjab
55
28
AIR 2000 SC 2324
55
State v. Manjunathegouda
56
28
AIR 2003 SC 809
56
Tarsem Singh v. State of Punjab
57
29
(2008) 16 SCC 155
57
Satbir Singh &ors. V. St of Haryana
58
29
AIR 2005 SC 3546
58
State of Karnataka v. M.V.

Manjunathegowda and Anr.
58
29
[2003] 2 SCC 188
59
State of Rajasthan v. Teg Bahadur
59
29
2005 (1) U.J.5at p.11(S.C.)
60
Swamy Prahadas v. State of M. P
62
30
(1995) SCC 943 Cri
61
Ramesh Kumar v. St of Chhattisgarh
63
30
(2001) 9 SCC 618
62
64
30
2010 (12) SCC 190
63
S.S. Chheena v. Vijay Kumar

Mahajan and another
Hans Raj v. St of Haryana
65
31
(2004) 12 SCC 257
64
Majbabu v. St of MP
66
31
AIR 2008 SC 3212
65
Sohan Raj v. State of Haryana
66
31
(2008) 11 SCC 215
66
Satvir Singh v. St of Punjab
67
31
(2001) 8 SCC 633
67
State of W.B v. Orilal Jaiswal
69
32
(1994) 1 SCC 73
68
Balbir Singh v. State of Punjab
70
32
(1987) 1 Crimes 76 (P&H)
69
Randhir Singh v. State of Punjab
71
33
AIR 2005 SC 5097
70
State of Haryana v Suresh Kumar
72
33
1993 Cr Lj 1400 (P&H)
71
Sarojakshan v. State Of Maharashtra
73
33
(1995) CrLJ 340 (Bom)
72
Cyriac v. Sub-Inspector of Police,

Kuduruthy
74
33
2005 CriLJ 4322 (Ker)

____________________________________________________________________________________
73
State of Gujarat v.
SunilkumarKanaiyalal Jani
75
33
1997 Cri LJ 2014 (Guj)
74
BommidiRajamallu v. State of A.P
76
34
2001 Cri LJ 1319 (AP)
75
Kishangiri Mangalgir iGoswami v.

State of Gujarat
ChanchalKumari v. Union territory
Chandigarh
78
34
2009(1)A.L.D. (Cr.) 924
79
34
AIR 1986 SC 752
77
Devinder Singh v. State of Punjab
80
34
2007 (1) Crimes 228 (SC)
78
Ramjee Rai v. State of Bihar
81
35
2006 (13) SCC 229
79
Jai Bhagwan v. State of Haryana
82
35
AIR 1999 SC 1083
80
Harjit Singh v. State of Punjab
84
36
AIR 2002 SC 3040
81
Santosh Desai v. State of Goa
85
36
(1997) 2 Crimes 666 (Bom)
82
Krishna Govind v. State of

Maharashtra
86
36
(1963) Bom LR SC 789
83
Amrik Singh v. State Of Punjab
87
36
1972 CrLJ 465 SC
84
88
37
1994 Cri LJ 3526
85
Arjun Thakur Alias Singh And Anr. v.

State
Pradeep v. Union Admin.
89
37
(2006)10 SCC 608
86
Ram Nath v. State of Madhya Pradesh
90
37
AIR 1953 SC 420
87
Banwari v. State of Uttar Pradesh
90
37
AIR 1962 SC 1198
76
STATEMENT OF JURISDICTION

____________________________________________________________________________________
The State of Rajasthan has approached this Honble Supreme Court under Article 136 of the
Constitution of India, 1950 as a Special Leave Petition challenging the judgement of the
Rajasthan High Court. The counsel for the respondents humbly submits that the present case
doesnt merit admission under the Article 136 of the Constitution of India, 1950.

____________________________________________________________________________________
STATEMENT OF RELEVANT FACTS

1. Mr. Suresh Goyal, aged about 25 years was the son of Shri Dinesh Goyal an
industrialist and high profile person living in Goyal House. Shri Suresh Goyal was
studying for MBA in a well known university. Miss Sharda Gupta was aged about 24
years, daughter of Shri Vikram Gupta, a businessman, having chain of departmental
stores was also studying MBA in the same College as that of Shri Suresh Goyal. Both
were in the same class. Both fell in love. Both families knew each other and Shri
Dinesh Goyal and Shri Vikram Gupta being members of the Ashok Club use to visit
house of each other and have drinks.
2. Shri Dinesh Goyal after passing out of his son, who was managing his Mill, was in
search of a suitable match for his son. He showed many girls, but Shri Suresh Goyal
on one pretext or the other did not consent. Ultimately Shri Suresh Goyal suggested
his father to talk to Shri Vikram Gupta for his daughter Miss Sharda Gupta, his
classmate. Shri Dinesh Goyal having closely known to Shri Vikram Gupta readily
accepted and had a talk with Shri Vikram Gupta. Both agreed for the marriage.
3. On 18th July, 2012 the wedding reception was arranged by Shri Dinesh Goyal on a
grand and lavish scale, with the presence of more than 5000 persons including
Ministers, Senior officials, industrialists, film celebrities, social workers and persons
of eminence. Guests were not only entertained but were given costly gifts. Soon after
the reception the couple left for honeymoon to Switzerland and Other European
Countries for a fortnight.
4. The royal wedding was a talk of the town. Commissioner of Income tax conducted
a survey whichshowed assets and items given in dowry. The investigation cell of the
Income-tax Department computed expenditure of Rs. 5 Crores by Shri Gupta and Rs.
7.5 Crores by Shri Goyal. On recording of statements and examination of books of
account it revealed that recorded expenditure by each is Rs. 1 Crore only. They
admitted that balance of the expenditure is from undisclosed sources and they would
pay tax and interest, subject to non-levy of penalty. Both filed their returns of income
and declared undisclosed income as per their statements and paid tax and interest.
However, on scrutiny assessment the Assessing Officer made addition of the
differential amount as per investigation cell and levied tax, interest with notice for
penalty. Both filed appeals, which are pending.
5. After marriage a fixed deposit of Rs. 25 lakhs was given in the name of Mrs. Sharda
Goyal by her family. With mental disturbance and non-congenial atmosphere Mrs.
Sharda Goyal could not conceive. Her relations with her husband became strained.
10

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But thereafter by grace of god Mrs. Sharda Goyal gave birth to a baby girl but the
Goyal family was not happy. No usual ceremonies and festivities were organized.
She was cursed, rebuked and sent to parental house. Mrs. Sharda Goyal was
maintaining a daily diary noting every incident minutely.
6. On or about 20.05.2015 Shri Suresh Goyal reached his in-laws house and apologized
for mis-treatment of his family. He sought consent of Sharda and she returned to
Goyal Palace.
7. Mr. Dinesh Goyal purchased on 24.5.2015 organo phosphrus sold under the trade
name of NUVAN from Shri Sanjay Kumar a shopkeeper as he required the same to
kill the flies. On 25.5.2015, the fateful day, Smt. Sharda Goyal, her mother-in-law
allegedly forcibly administered poison to the deceased to kill her. Her son also
allegedly held the body of the deceased physically and forced her to drink. During
the course of administration of poison deceased struggled as such sustained injuries
on her face, lips and neck.
8. Shri Surendra Kumar, a servant heard the shrieks and cries of the deceased and
extreme weeping of her child. The deceased was crying Give me salty water. I do
not want to die. Two other servants Shri Ved Prakash, and Shri Om Prakash, reached
on the spot and smelt poisonous odour in the room. The articles in the room were
scattered. The deceased was lying on the bed having bruises and contusions on her
face. Water was splashed on the bed as well as on the floor of the room. The clothes
of the deceased were also drenched.
9. In the meantime Shri Anil Kumar, and Shri Shiv Kumar relatives of the deceased
also arrived. They noticed the condition of the room and also the precarious and
deteriorating condition of the deceased. When they asked Shri Suresh Goyal what
had happened, he reported that it was his private life and they need not bother.
10. Shri Dinesh Goyal refused to take the deceased to the hospital as he believed that
nothing had happened and he himself being father-in-law could look after her. Shri
Anil Kumar & Shri Shiv Kumar also smelt poisonous odour in the room. Deceased
was crying that she did not want to die and she be saved. On being asked what had
happened, she raised her hand towards the accused Shri Dinesh Goyal and Mrs.
Shalini Goyal
11. Om Prakash, informed the police at about 4.30 a.m. On that Biru Ahmad entered the
information in the daily diary and proceeded towards the spot. He found the deceased
lying on the bed in an unconscious position. Dr. O. P. Choudhary, examined the
11

____________________________________________________________________________________
deceased at about 6 a.m. and noted the patient was semi-conscious with history of
consumption of poisonous substance. He also noted contusion reddish in colour over
the lateral side of her right eye brow with swelling present and both lips were
swollen. It was also noted that complete examination of the body could not be done
because patient was in serious condition. B.P. was not recordable and Pupils bilateral
circular, pin point not reacting to light. Doctor O. P. Choudhary administered the
initial treatment. He carried out Gastric Lavage first with saline solution and then
with ordinary tap water. Thereafter he referred the deceased at S.M.S. Hospital,
Jaipur which was informed to the police. She died at the Hospital.
12. Post mortem was conducted by Dr. Piyush Kapila, in association with Dr. V. K.
Mishra, Assistant Professor Forensic Medicine. As to the cause of death it was opined
that the deceased had died due to asphyxia secondary to the organi phosphorus
poison. Following ante-mortem injuries were found on the person of the deceased a)
bruise on the right periorbital area with swelling of right eye lid with two concentric
nail scratches abrasions, b) one on forehead and other on upper eye lid, bluish in
colour c) on intraorbital area and check on left side d) contusion on the inner side of
lower lip towards left side mid line with respect to left lateral incisor (lower). Blue in
colour; e) contusion over chin and submental area in midline. Bluish in colour; f)
multiple small abrasions over neck and right of upper chest in front lateral to sterno
calvicular joint; contusion in infra-axilary area in mid axillary line. Blue in colour. g)
large purple coloured pach over dorsum of right hand with multiple needle prick
marks (latrogenic).
13. Shri Vikram Gupta, father of a deceased came to the hospital on the same he also
lodged a report at the Police Station mentioning the harassment caused by the three
accused to the deceased for dowry. He stated that all the three accused namely Shri
Dinesh Goyal, Smt. Shalini Goyal and Shri Suresh Goyal had forcibly administered
poison with intention to kill his daughter for non-fulfillment of further demand of
dowry. Death had occurred due to mal-treatment by the accused and action be taken
against them.
14. Shri Dinesh Goyal in his statement did not deny the factum of the deceased having
died due to poison. It was stated by him that the deceased had disclosed to him that
she had consumed some drugs and had asked him to give her salty water. Deceased
was under convulsion due to some drug. He had given her water to vomit. He firstly
gave water to her and then took her to S.M.S. Hospital and called Dr. O.P.
Chowdhary.
15. He further stated that his relationship with the deceased was cordial. He examined 3
witnesses in defence, who stated that Shalini Gupta was happy in Goyal House and
12

____________________________________________________________________________________
their relations inters were cordial and she was treated as a daughter.
16. The Trial Court acquitted the mother-in-law and the husband while Shri Dinesh
Goyal was convicted for the offence of murder under Section 302 IPC and awarded
imprisonment for 7 years with no fine.
17. State as well as Vikram Gupta filed an appeal before the Rajasthan High Court
pleading life imprisonment for Dinesh Goyal and imprisonment for 7 years for Smt.
Shalini Goyal and for 5 years for Shri. Suresh Goyal. Shri Dinesh Goyal also filed an
appeal against conviction. The High Court acquitted the respondent Dinesh Goyal on
the ground that the circumstances are not of conclusive nature. Chain of
circumstances is not complete so as to unerringly point to the guilt of the accused.
18. Hence the present appeal has been filed by the State as well as Shri Vikram Gupta
against all the three accused setting aside acquittal and non-levy of maximum
imprisonment with fine as also awarding exemplary cost all throughout.
13

____________________________________________________________________________________
ISSUES FOR CONSIDERATION

1) Whether the appeal by the State and Shri Vikram Gupta is admissible by the
Honble Supreme Court?
2) Whether the decision of the High Court should be upheld?
The following sub issues therefore need reconsideration corroborated with proper
evidence:
a) Whether the accused persons are guilty for murder and thus can be punished
under Sec. 302 of the Indian Penal Code, 1890?
b) Whether the accused persons are guilty under Section 304-B of the Indian
Penal Code for causing dowry-death of the deceased.
c) Whether the accused persons are guilty for abetment of suicide under
Sec.306 of the Indian Penal Code, 1890?
d) Whether the three accused are guilty under Section 34 of the Indian Penal Code
for acts done by them in furtherance of common intention?
14

____________________________________________________________________________________
WRITTEN PLEADINGS
ISSUE 1
Whether the appeal by the State and Shri Vikram Gupta is admissible by the Honble
Supreme Court?
An appeal would lie to the Supreme Court as a matter of right when High Court has, on
appeal, (1) reversed an order of acquittal of an accused person and (2) convicted and
sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years
or more.1
Furthermore under Article 134(1) (a) of the Constitution of India, the absolute right of
appeal to the Supreme Court is restricted only to cases where the High Court reversed an
order of acquittal passed by the Trial Court and awards the sentence of death. The right of
appeal is also extended to cases where the High Court has withdrawn for trial before itself
any case from any court subordinate to its authority and has in such trial convicted the
accused person and sentenced him to death.2 Other than that, an appeal lies to the Supreme
Court on a certificate under Article 134- A3 by the High Court certifying that the case is a fit
one for appeal to the Supreme Court.4
The present appeal by the appellant neither satisfies the conditions laid down in Article 1345
nor section 379.6
In all other cases a person aggrieved by an order of the High Court has to approach the
Supreme Court by invoking Article 136 of the Constitution of India which provides for grant
of leave to appeal by the Supreme Court.7
Prior to the commencement of the Constitution, the practice of the Privy Council was not to
Chandra Mohan Tiwari v. State of Madhya Pradesh, AIR 1992 SC 891; Sec on 379 CrPC
Ar cle 134(1) (b) Cons tu on of India, 1950

Cons tu on of India, 1950

Ar cle 134(1) (c) Cons tu on of India, 1950

Cons tu on of India, 1950.

Code of Criminal Procedure 1973.

Lectures on Administra ve Law; (2008); pp. 390-94
15

____________________________________________________________________________________
grant leave to appeal in criminal cases except where there was clear departure from the
course of justice denying the accused of fair trial. The view was taken by the judicial
committee of the Privy Council too.8
In Dillet, Re,9 the judicial committee of the Privy Council stated;
Such appeals are of rare occurrence; because rule has been repeatedly laid down and has
been invariably followed, that Her Majesty will not review or interfere with the course of
criminal proceedings, unless it is shown that, by a disregard of the form of legal process, or
by some violation of the principles of natural justice, or otherwise, substantial and grave
injustice has been done (emphasis supplied)
In Dal Singh v. King Emperor,10 after referring to earlier decisions, their Lordships made the
following pertinent observations;
The exercise of the prerogative takes place only where it is shown that injustice of a serious
and substantial character has occurred. A mere mistake on part of the courts below, as for
example, in the admission of improper evidence, will not suffice if it has not led to injustice
of a grave character. Such questions are, as a general rule, treated as being for the final
decision of the courts below.(Emphasis supplied)
After commencement of the Constitution of India, the Supreme Court became the highest
court in the judicial hierarchy. Article 13611 conferred very wide and extensive powers on the
court in granting special leave in the wide range of matters. It, however, took note of the
practice the Privy Council followed in granting special leave in criminal cases.
In Pritam Singh v. State of Punjab,12 speaking for the constitution bench, Fazl Ali, J stated;
Generally speaking, this court will not grant special leave unless it is shown that
exceptional and special circumstances exist, that substantial and grave injustice has been
done and that the case in question presents features of sufficient gravity to warrant a review
R v. Bertrand, (1867) 1 PC 520; Reil v. Queen, (1885) 10 AC 675; Makin v. A orney General for New South
Wales, (1894) AC 57

(1887) 12 AC 459

AIR 1917 PC 25; Ibrahim v. King Emperor, AIR 1914 PC 155; Taba Singh v. King Emperor, AIR 1925 PC 59;
Mohinder Singh v. King Emperor, AIR 1932 PC 234; Eswaramurthi v. King Emperor, AIR 1944 PC 54

Cons tu on of India, 1950

AIR 1950 SC 169
16

____________________________________________________________________________________
of the decision appealed against. (Emphasis supplied)

In State of Rajasthan, Through Secretary, Home Department v. Abdul Manan,13 the Supreme
Court discussed the limitation upon the powers of the appellate court to interfere with the
judgment of acquittal and reverse the same. It held as under;
Against an order of acquittal, an appeal by the State is maintainable to this Court only with
the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court
is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or
imprisonment for more than 10 years, then the right of appeal of the accused is treated as an
absolute right subject to the provisions of Articles 134(1) (a) and 134(1)(b) of the
Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of
this, it is obvious that an appeal against acquittal is considered on slightly different
parameters compared to an ordinary appeal preferred to this Court.(Emphasis supplied)
When an accused is acquitted of a criminal charge, right vests in him to be a free citizen and
this Court is very cautious in taking away that right. The presumption of innocence of the
accused is further strengthened by the fact of acquittal of the accused under our criminal
jurisprudence. The courts have held that if two views are possible on the evidence adduced
in the case, then the one favourable to the accused, may be adopted by the court.14
In State of M.P. v. Bacchudas,15the Court was concerned with a case where the accused had
been found guilty of an offence punishable under Section 304 Part II read with Section 34
IPC by the trial court but had been acquitted by the High Court of Madhya Pradesh. The
appeal was dismissed by this Court, stating that the Supreme Court's interference was called
for only when there were substantial and compelling reasons for doing so. (Emphasis
Supplied)
The principle to be followed by the appellate court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and substantial reasons
for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a compelling reason for
interference.
(2011) 8 SCC 65
State Of Rajasthan v. Shera Ram @ Vishnu Du a,CRIMINAL APPEAL NO.1502 OF 2005

AIR 2007 SC 1236
17

____________________________________________________________________________________
These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra16, Ramesh Babulal Doshi v. State of Gujarat17, Jaswant Singh v. State of
Haryana18, Raj Kishore Jha v. State of Bihar19, State of Punjab v. Karnail Singh20, State of
Punjab v. Phola Singh21, Suchand Pal v. Phani Pal22, Sachchey Lal Tiwari v. State of U.P23.
When the conclusions of the High Court in the background of the evidence on record are
tested on the touchstone of the principles set out above, the inevitable conclusion is that the
High Court's judgment does not suffer from any infirmity to warrant interference.
In a very recent judgment, a Bench of this Court in State of Kerala v. C.P. Rao24 discussed
the scope of interference by this Court in an order of acquittal and while reiterating the view
of a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan,25 the Court held
as under: "In coming to this conclusion, we are reminded of the well-settled principle that
when the court has to exercise its discretion in an appeal arising against an order of
acquittal, the court must remember that the innocence of the accused is further
re-established by the judgment of acquittal rendered by the High Court. Against such
decision of the High Court, the scope of interference by this Court in an order of acquittal
has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v.
State of Rajasthan.(Emphasis supplied)
In the present case the impugned judgment of acquittal recorded by the High Court does not
suffer from any legal infirmity and, therefore, does not call for any interference. The
Supreme Court in exercise of its discretionary jurisdiction under Article 136 of the
Constitution should not interfere and reopen the findings of fact arrived at by the High
Court, particularly in a casewhere the accused were acquitted. Article 136 of the
Constitution does not confer a right of appeal on any party from the decision of a Court; but
it confers a discretionary power on the Supreme Court to interfere in suitable cases.This
discretionary power is exercised when there is a grave failure and miscarriage of justice to
1973 SCC (2) 793

(1996) 9 SCC 225

(2000) 4 SCC 484

(2003) 11 SCC 519

(2003) 11 SCC 271

(2003) 11 SCC 58

(2003) 11 SCC 527

(2004) 11 SCC 410

(2011) 6 SCC 450

1961 AIR 715
18

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one party26 or a question of law having general public importance arises27
The practice of the Privy Council and that followed by the Federal Court and the Supreme
Court is not to interfere on questions of fact except in exceptional cases, when the finding is
such that "it shocks the conscience of the Court" or "by disregard to the forms of legal
process or some violation of the principles of natural justice or otherwise substantial and
grave injustice has been done". This self-imposed restriction is not lightened, but is only
heightened by the fact that the High Court on the basis of the finding of facts acquitted the
accused. The decision of the High Court in the present case being a reasoned one without
any errors of law merits no interference by the Appellate Court.
ISSUE II
Whether the decision of the High Court should be upheld?
a) Whether the accused persons areguilty for murder and hence can be punished
under Sec. 302 of the Indian Penal Code, 1890?
Section 300 IPC:

N. Suriyakal v. A. Mohandoss, (2007) 9 SCC 196; State of Assam v. Barga Dewani, (1970) 3 SCC 236.
Central Bank of India v. Madhulika Guruprasad Dahir, (2008) 13 SCC 17; Dhakeswari Co on Mills Ltd. v. CIT,
AIR 1955 SC 65.
19

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Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing death, or
Secondly.If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or
Thirdly.If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or
Fourthly.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.
Section 300 deals with murder. It does define murder. Section 299 explains culpable
homicide. This section sets out circumstances when culpable homicide amounts to murder.
The first question to be considered before murder can be proved is whether the accused has
done an act by doing of which he has caused the death of another. This basically means that
the Actus Reus is the first ingredient that needs to be proved.
In any crime, the essential elements of the guilt must be proven by the prosecution beyond
reasonable doubt. Suspicion, however strong it may be, cannot take the place of proof.28
By virtue of the Indian Evidence Act 1872, section 101, the onus of proving the criminal
charge beyond reasonable doubt against the accused lies on the prosecution. A person is
presumed to be innocent until his guilt is established.
Meaning of beyond reasonable doubt: The standard that must be met by the prosecution's
evidence in a criminal prosecution: that no other logical explanation can be derived from the
facts except that the defendant committed the crime, thereby overcoming the presumption
that a person is innocent until proven guilty.29
When a case rests purely on circumstantial evidence, such evidence must satisfy three tests.
Dhananjaya Reddy v. State of Karnatka. AIR 2001 SC 1512; Avtar Singh v. State of Punjab AIR 2007 SC 31
h p://legal-dic onary.thefreedic onary.com/Beyond+a+Reasonable+Doubt.
20

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Firstly, the circumstances from which an inference of guilt is sought to be proved, must be
cogently and firmly established. Secondly, the circumstances should be of a definite
tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances
taken cumulatively must form a chain so complete that there is no escape from the
conclusion that within a humans probability the crime was committed by the accused and
none else.30
In a case of death by poisoning where there was no eye witness or direct evidence, where
even the recovery of poison had not been proved from the possession of the accused husband
and the alleged extra judicial confession made was not corroborated by any other
circumstantial evidence, the husband was acquitted of the charge under section 302.31
If there are any inconsistencies between the apparent death scene and his actual findings the
medical expert has to visit the scene of crime. He has to carry out careful external
examination including clothing, in the determination of the pattern of injuries and their
relationship to the object or weapon causing them. He has also to determine the manner and
mechanism of death.32
In the present case, the evidence pointing to the guilt of the accused for murdering the
deceased is not at all firmly established. There were no eye witnesses who saw the
commission of the crime. The servants and the relatives who came to the scene later never
witnessed the incident. Furthermore, the medical expert opinion also doesnt clearly indicate
that the poison was forcefully administered to the deceased. Added to that is the fact that the
poison was not found in the possession of the accused persons. Even the clothes of the
deceased person which is important and relevant evidence has not been produced.
For determining whether circumstances established on the evidence raise but one inference
consistent with the guilt of the accused, regard must be had to the totality of the
circumstances. Individual circumstance considered in isolation and divorced from the
context of the overall picture emerging from a consideration of the diverse circumstances
and their conjoint effect may by themselves appear innocuous. It is only when various
circumstances are considered together that it becomes possible to understand and appreciate
Reddy Sampath Kumar v. State of Andhra Pradesh; (2005) 7 SCC 603

State of Tamil Nadu v. Rajendran, AIR 1999 SC 3535

The Essen als of Forensic Medicine and Toxicology, Dr. K.S. Narayan Reddy
21

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their true effect.33
It is now well settled by a catena of decisions of the Supreme Court that for proving the
guilt of commission of an offence under Section302, the prosecution may leave evidence
to connect all links in the chain so as to clearly point to the guilt of the accused alone and
nobody else.34
In the present case, the chain of events are incomplete as the time the poison was
administered, the time of the arrival of the servants and relatives, the time she was taken
to the hospital and the time of her death, all relevant facts, are not recorded. Thus, the
investigation of the prosecution and the evidence produced by them do not prove the guilt
of the accused beyond reasonable doubt.
Death due to suicide
In the present case, the deceased died due to consuming a poison named Organo
phosphorus which is ideally a suicidal poison. It satisfies all the characteristics of an ideal
suicidal poison, that it is cheap, easily available, highly toxic, capable of being taken
easily in food or drink and capable of producing a painless death.35
Furthermore, it is stated that the deceased wife was a sensitive woman. There were
problems in the matrimonial family due to the birth of a girl child, her husband used to
return home drunk and their relation was estranged. In such a scenario, keeping the facts
in mind, the court can very well presume that it was a suicidal death and not a homicidal
death.
In death by burning, considering that the marriage between the accused husband and the
deceased wife was proved to be a failure, the possibility of her committing suicide and
implicating her husband and in-laws could not be ruled out, the court sustained the
judgement of acquittal accorded by the trial court, disbelieving the five dying
declarations made by the deceased to different persons.36
Bibichachha AIR2001 SC 2274

Sunny Kapoor v. State (U.T of Chandigarh) (2006) 5 SCALE 467

The Essen als of Forensic Medicine and Toxicology, Dr. K.S. Narayan Reddy

Laxmi v. Om Prakash, AIR 2001 SC 2383
22

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In State of Maharashtra v. Sanjay D Rajhans, the Supreme Court held thatwhen two
incredible versions confront a court, the court has to give benefit of doubt to the accused
and its not safe to sustain a conviction. The version of homicide set up by the prosecution
as well as the version of suicide set up by the accused appear to be highly improbable and
did not inspire confidence in the mind of the court to believe either version. Hence the
court upheld the acquittal.37
b) Whether the accused persons are guilty for Dowry Death under Sec. 304-B of the
Indian Penal Code, 1890?
A reading of Section 304-B of the Indian Penal Code, 1860 clearly shows that if a married
woman dies otherwise than under normal circumstanceswithin seven years of her
marriage and it is shown that soon before her death she was subjected to cruelty or
harassmentby her husband or any relative of her husband in connection with demand for
dowry, such death shall be called a dowry death and such a husband or relative shall be
deemed to have caused the death.
In the case of Mustafa Shahadal Shaikh v. State of Maharashtra,38 the court held that in
order to convict an accused for the offence punishable under Section 304-B IPC, the
following ingredients must be satisfied:
i. the death of a woman must have been caused by burns or bodily injury or
otherwise than under normal circumstances;
ii. such death must have occurred within seven years of marriage;
iii. soon before her death, the woman must have been subjected to cruelty or
harassment by her husband or any relatives of her husband;
iv. Such cruelty or harassment must be for, or in connection with, demand for dowry.
In the present case, there is no dispute that the first two ingredients have been fulfilled,
that is, death occurred otherwise than under normal circumstances and the death occurred
within seven years of the marriage. However, it is humbly asserted that there is no
2005 Cri LJ 120 (SC)

(2012) 11 SCC 397
23

____________________________________________________________________________________
sufficient evidence on record to suggest that the deceased was subjected to cruelty or
harassment by the accused persons soon before her death or that the harassment was for,
or in connection with demand for dowry.
Cruelty or Harassment
S. 498-A, IPC provides follows:
498A.Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine. Explanation.For the purpose of this section,
cruelty means
(a)
Any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether mental
or physical) of the woman; or
(b)
harassment of the woman where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.
In the case of Ram Singh v. State of Haryana39 , the SC laid down the principle that it is
well settled that facts are to be proved and no fact can be said to be proved merely by
surmise or conjecture.
In any marital life it cannot be said that there is total harmony and it is not uncommon
between the wife and husband to have some petty quarrels, which cannot be termed as
'cruelty' to attract the provisions of Section 498-A, IPC.40
(2008)4 SCC 70
Vadala Vinay Kumar v. St. of A. P. 2006 (1) ALD Cri 530, 2006 CriLJ 1710
24

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In the case, Kaliyaperumal v. State of Tamil Nadu41, the petitioner had harassed his
deceased wife and had treated her with cruelty which is evident from the evidence of a
number of witnesses from the neighbourhood. It was held that the petitioner could not
save himself from the offence under sec 498-A for which there is overwhelming evidence.
The situation in the present case is markedly different. The defence produced three
witnesses who testified that she was treated as a daughter and that there were cordial
relations between the accused and the deceased. Also, though it has been stated by the
prosecution that the servants witnessed the cruelty meted out to the deceased, none of the
servants have testified about the same.
Mere omnibus statement regarding demand of money does not ipso facto make out a case
under 498-A of IPC. Prosecution is required to prove over acts attributed by accused
beyond reasonable doubt.
To decide the question of cruelty, the relevant factors are the matrimonial relationship
between the husband and wife, their cultural and temperamental state of life, state of
health and their interaction in daily life.42The effect of cruelty depends on a number of
factors such as sensitivity of the individual, the social background, the environment,
financial positions, social status etc.43
Furthermore, the comments about the childless state of the couple do not constitute
cruelty. In State of Andhra Pradesh v. Kalidindi Sahadevudu,44 it was alleged that, as the
deceased did not beget children for a period of three years after the marriage, accused
harassed the deceased by calling her barren woman. It was held that mere commenting
that deceased was not begetting children does not amount to subjecting the deceased to
cruelty within the meaning of sections 498A IPC.
In the case Suresh Kumar v. State of Haryana45, the court said The domestic work that a
2003 RCC 733 (SC)

State of Karnataka v. H.S. SrinivasaIyengar (1996) 2 ALT Cri 12

Mohammad Haman v. State (2002)7 SCC 414

2012 CrLJ 2302(AP)
25

____________________________________________________________________________________
young married woman was asked to do, the late coming of the husband of the woman at
night time drunk and his not giving much love and affection to his wife as also the scolding
of her mother-in-law when the lady had made a complaint about her husband in the
morning, condemnable though, were not such acts of cruelty that would necessarily persuade
the lady to commit suicide.
A basic principle of criminal law is that the prosecution must prove that the offence has
been committed beyond reasonable doubt. If there is even a little doubt in the mind of any
reasonable person as to whether the Accused had committed the offence, the benefit of
doubt must go to the accused.
In Ashok Debbarma v. State of Tripura46, the Honble Supreme Court held as under:
An accused has a profound right not to be convicted of an offence which is not

established by the evidential standard of proof beyond reasonable doubt. This Court in
Krishnan and another v. State represented by Inspector of Police47, held that the doubts
would be called reasonable if they are free from a zest for abstract speculation. Law
cannot afford any favourite other than truth and to constitute reasonable doubt, it must be
free from an overemotional response. Doubts must be actual and substantial doubts as to
the guilt of the accused persons arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a
merely possible doubt, but a fair doubt based upon reason and common sense. It must
grow out of the evidence in the case.(Emphasis supplied)
In the cases
1. Gurditta Singh v. State of Rajasthan48
2. Gurnam Singh v. State of Haryana49
3. Raj Rani v. State of Haryana50
4. Devinder Singh v. State of Punjab51
(2014) 4 SCC 747

(2003) 7 SCC 56

1992 Cr.L.J. 309 at pp.314,318,319

1998 Cr.L.J. 3694 at 3700 (P.&H.)

2006(1) East Cr.C. 70 at p. 71 (SC)

2006(1) SCC
26

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The Apex court was of the view that simply because a young lady has brought her life to a
tragic end by committing suicide, it cannot be said that she had embraced death on
account of any demand of dowry by her Husband or mother-in law which was not
satisfied.
Has the prosecution proved in this case proved that the Accused had subjected the
Deceased to cruelty, beyond all reasonable doubt?It is respectfully submitted that the
prosecution has failed to do so. In fact, the evidence is to the contrary.
Facts of the case

There is no concrete proof to show that the deceased person was harassed for dowry. Mrs.
Shalini Goyal did taunt her on certain occasions regarding the childless state and later due
to the birth of a female child but she apologised shortly thereafter and they all reconciled.
She was sent to her parental home because of the birth of the girl child however the
husband apologised and brought her back. This again shows reconciliation between the
deceased and the accused. There is no proof of any sort of cruelty or harassment
subsequently. This as proved through the above cited case laws doesnt establish legal
cruelty under Sec. 498-A of IPC.
In a similar case to the present one, State of Maharashtra v. Ashok Chotelal Shukla52, the
High Court had reversed the decision of the Trial Court and acquitted the accused for
offences of cruelty and murder. In this case too there was a demand for dowry prior to
marriage which was fulfilled. After marriage there was a demand for money and also
taunts and frustration over the birth of a female child. But all this ended with an apology
by the husband who took the wife back to the matrimonial home. After appreciating all
these facts the court held that It is also a matter of shame that the respondent did not
treat his wife properly because her father was not willing to give more money had for that
reason on one occasion he had driven her out of his house and also because she had given
birth to a female child. The facts and circumstances which can be accepted as proved no
doubt create a strong suspicion that on the fateful day the respondent had, after some
27

____________________________________________________________________________________
quarrel, poured kerosene over her and put her to flames. But this is a case of
circumstantial evidence and on re appreciation of the evidence the High Court has found
it fit to acquit the respondent. Therefore, unless, we come to the conclusion that the view
taken by the High Court is so unreasonable as to warrant interference by this court it will
not be proper to interfere with the order of acquittal, only because on re-appreciation of
evidence it is possible to take a different view. (Emphasis supplied)
Furthermore, in the same above mentioned case the court held that Even with respect to
the evidence of harassment and cruelty, the High Court has held that it is insufficient for
holding that Vibha was driven to commit suicide because of harassment and cruel
treatment by the respondent. The fact that after the incident of 26.11.1983 the respondent
had approached Vibha and her parents on the very next day and apologised and no other
incident either demand of money or ill treatment had taken place after that date makes it
doubtful if harassment and cruel treatment given by the respondent was the immediate
cause of committing suicide. (Emphasis supplied)
Demand for dowry
The Dowry Prohibition Act, 1961 defines dowry as follows:
Dowry means any property or valuable security given or agreed to be given either
directly or indirectly:
a.
by one party to a marriage to the other party to the marriage; or
b.
by the parents of either party to a marriage or by any other person, to either party
to the marriage or to any other person; at or before or any time after the marriage in
connection with the marriage of said parties but does not include dower or mehr in the
case of persons to whom the Muslim Personal Law (Shariat) applies.
In the present case it is alleged by the prosecution that accused no. 2 demanded a
Mercedes Benz Classic Car and a fixed deposit of Rupees 1 crore. This demand can be
understood to be for the purpose of recovering the deficit of the high taxes paid by the
Goyal family after the raid of the Income Tax Department for the wedding reception.
Goyal family were found to have spent Rs. 7.5 Crores while the Gupta family spent only
28

____________________________________________________________________________________
Rs.5 Crores. This would mean that there was a difference of Rs.2.5 Crores which they
wanted to even out hence they claimed for the said assets.
Soon before her death
The term soon before is a relative term. It has to be construed in the context of the
specific circumstances of each case.53 It would normally imply that there is a close link
between the cruelty or harassment concerned and the death in question. The expression
'soon before' would normally imply that the interval should not be much between the
concerned cruelty or harassment and the death in question. There must be existence of a
proximate and live-link between the effects of cruelty based on dowry demand and the
concerned death.54
If the cruelty or harassment in relation to demand for dowry is shown to have persisted, it
shall be deemed to be soon before death if any other intervening circumstance showing
the non existence of such treatment is not brought on record, before such alleged
treatment and the date of death.55
When the prosecution achieved in proving at the most that there was persisting dispute
between the two sides regarding the dowry [paid or to be paid, both in kind and in cash
and on account of the failure to meet the demand for dowry, the wife was taken by her
parents to their house about one and a half years before her death, an attempt was made to
patch up between the two sides for which a panchayat was held in which it was resolved
that she would go back to the nuptial home pursuant to which she was taken by the
husband to his house and there a nothing on record to show that she was either treaed with
cruelty or harassment with a demand for dowry during the last ten to fifteen days during
the period between her having been taken to her parental home and her trajic end, the
conviction under sections 302 and 304B cannot be maintained.56
The presumption raised under Sec 113B of The Indian Evidence Act is not sustainable in
this case.
Vidhya Devi v. St of Haryana (2004) 9 SCC 476

State of A.P v. Raj Gopal Asawa 2004 Cri LJ 1791

Hans Raj v. State of Punjab, AIR 2000 SC 2324

State v. Manjunathegouda AIR 2003 SC 809
29

____________________________________________________________________________________
Presumption as to dowry death.When the question is whether a person has committed

the dowry death of a woman and it is shown that soon before her death such woman has
been subjected by such person to cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.for the purposes of this section, dowry death shall have the same
meaning as in section 304B, of the Indian Penal Code.
Legislature thought it wise to insert a provision relating to presumption of dowry death on
proof of certain essentials. The presumption shall be raised only on proof of the following
essentials57
1. The question before the Court must be whether the accused has committed the dowry
death of a woman. (This means that the presumption can be raised only if the accused is
being tried for the offence under Section 304-B IPC).
2. The woman was subjected to cruelty or harassment by her husband or his relatives
3. Such cruelty or harassment was for, or in connection with any demand for dowry.
4. Such cruelty or harassment was soon before her death.
Once the prosecution is able to establish the aforesaid ingredients, the presumption
against the accused starts as enjoined under Section 113B of the Indian Evidence Act. Of
course, it is a rebuttable presumption and the onus lies, on the accused against whom the
presumption lies to discharge it.58
The defence stipulates to the first essential- The accused is charged under Sec 304B of the
IPC. However, the other three essentials are disputed and have been argued in connection
with Sec 304B above. Hence the presumption stands rebutted.
In State of Rajasthan v. Teg Bahadur59, there was lack of evidence to prove the demand of
dowry and the evidence led by the prosecution bristled with discrepancies and
contradictions. On the basis of the evidence, it could not be treated to have been proved
that actually the accused has made a demand of dowry that was soon before the death and
Tarsem Singh v. State of Punjab (2008) 16 SCC 155

Satbir Singh &ors. v. St of Haryana AIR 2005 SC 3546; State of Karnataka v. M.V. Manjunathegowda and Anr.,
[2003] 2 SCC 188
30

____________________________________________________________________________________
due to this, the deceased was harassed.
c) Whether the accused persons are guilty for abetment of suicide under Sec.306 of
the Indian Penal Code, 1890?
In order to convict the Accused Persons for abetting the Deceased to commit suicide
Section 306 of the IPC must be attracted.
Section 306 states the following:
If any person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description for a term which may extend to
ten year, and shall also be liable to fine.
A Person abets the doing of a thing, who
i. instigates any person to do that thing; or
ii. Engages with one or more other person or persons in any conspiracy for the doing
of that thing, if an act or an illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
iii. Intentionally aids by any act or illegal omission, the doing of that thing60
Instigation is the only way a person can abet the commission of a suicide. One of its
synonyms is abet which means in law to aid, promote, or encourage of an offence.61 To
make out a case of abetment, there must be some active suggestion or instigation,
provocation, incitement or encouragement by the accused to a person to do an act.62
Instigate is to goad, urge forward, provoke, incite or encourage to do an act. To satisfy
the requirement of instigation though it is not necessary that actual words be used to that
effect or what constitutes instigation must necessarily and specifically be suggestive of
the consequence. Yet a reasonable certainty to indicate the consequence must be capable
Sec on 107 of the Indian Penal Code, 1860

P Ramanatha Aiyar, Advanced Law Lexicon, Wadhwa Nagpur, 3rd ed. 2005

Swamy Prahadas v. State of Madhya Pradesh (1995) SCC 943 Cri
31

____________________________________________________________________________________
of being spelt out.63 Without a positive act on the part of the accused to instigate or aid in
committing suicide, the conviction cannot be sustained. There has to be clear mens rea to
commit the offence.64
The presumption raised under Sec 113A of the Indian Evidence Act is not sustainable in
this case.
Sec 113A of the Indian Evidence Act reads as follows:
Presumption as to abetment of suicide by a married woman.When the question is

whether the commission of suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had committed suicide within a period of
seven years from the date of her marriage and that her husband or such relative of her
husband had subjected her to cruelty, the Court may presume, having regard to all the
other circumstances of the case, that such suicide had been abetted by her husband or by
such relative of her husband
Explanation.For the purposes of this section, cruelty shall have the same meaning as
in section 498A of the Indian Penal Code
The use of the words may presume is important here. They are defined in Sec 4 of The
Indian Evidence Act,1872 which says- Whenever it is provided by this Act that the
Court may presume a fact, it may either regard such fact as proved, unless and until it is
disproved or may call for proof of it.
Sec 113A gives a discretion to the court to raise such a presumption, having regard to all
the other circumstances of the case. One of the circumstances which has to be considered
by the court is whether the alleged cruelty was of such nature as was likely to drive the
woman to commit suicide.65
The mere fact that a woman committed suicide within seven years of her marriage and
that her husband or any relative of her husband has subjected her to cruelty does not
automatically give rise to the presumption that the suicide had been abetted by her
husband or any relative of her husband. The court is required to look into all the other
circumstances of the case. One of the circumstances which has to be considered by the
Ramesh Kumar v. St of Chha sgarh (2001) 9 SCC 618

S.S. Chheena v. Vijay Kumar Mahajan and another, 2010 (12) SCC 190

Hans Raj v. State of Haryana (2004) 12 SCC 257
32

____________________________________________________________________________________
court is whether the alleged cruelty was of such a nature as was likely to drive the woman
to commit suicide.66
Certain essentials need to be fulfilled before the presumption under Sec 113A of the
Indian Evidence Act can be raised.
1. The deceased committed suicide within a period of 7 years from the date of her
marriage
2. She was subjected to cruelty within the meaning of Sec 498A Of the IPC67
Even if these facts are established, the Court is not bound to presume that the husband has
abetted the suicide.68
However, in the present case, it is the contention of the defence that the second essential
does not lie fulfilled and the deceased was not subjected to cruelty within the meaning of
Sec 498A of the IPC. This has been previously proved by the defence in the previous
issue.
It is an established tenet of criminal jurisprudence that the charges against the accused
must be proved beyond reasonable doubt. The requirement of proof beyond reasonable
doubt does not stand altered even after the introduction of Section 498-A IPC and Sec
113A of the Indian Evidence Act.69
In arguendo, for the reason that the Deceased was a married woman, the Prosecution may
rely on Section 113A of the Indian Evidence Act, 1872 where there exists a presumption
as to abetment of suicide by a married woman.
Section 113 A of the Indian Evidence Act established such presumption against the
Accused when the following terms are satisfied:
(1) When the suicide was committed within 7 years.
(2) That the Deceased was subjected to cruelty by the Accused.
However, it is submitted that such presumption under Section 113A is rebuttable.70
Majbabu v. State of MP AIR 2008 SC 3212; Sohan Raj v. State of Haryana (2008) 11 SCC 215
Satvir Singh v. St of Punjab (2001) 8 SCC 633

Hans Raj v. St of Haryana (2004) 12 SCC 257

State of WB v. Orilal Jaiswal (1994) 1 SCC 73
33

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Therefore, the Defence shall rebut the existence of any cruelty towards the Deceased and
subsequently show that there were other relevant circumstances which led the Deceased
to commit suicide.
[1] That the Accused Persons did not subject the Deceased to Cruelty
It is submitted that the facts and circumstances are not adequate to establish that the
Accused persons had subjected the Deceased Person to any cruelty within the meaning of
Section 498-A of the IPC, 1860.
In view of the present case, the Deceased was not subjected to any cruelty or harassment
as there was no demand for dowry rebutting Section 113A of the Evidence Act and
therefore the Accused Persons cannot be convicted under Section 306 of IPC.
A type of active role that can be described as amounting to instigation or aiding for doing
something is requisite before a person can be said to have committed the offence under the
section.71
Relying on the decision of the High Court of P & H in the case of State of Haryana v
Suresh Kumar72the Defense submits that there is neither proof of harassment nor conduct
of husband that was such to drive the Deceased to commit suicide.
It is not enough if the acts of the accused cause persuasion in the mind of the deceased to
commit suicide. An indirect influence or an oblique impact which the act or utterance of
the accused caused or created in the mind of the deceased and which drove the deceased
to commit suicide will not be sufficient to constitute the offence of abetment of suicide.73
In short, it is not what the deceased felt but what the accused intended by his act
which is more important in this context.
The act or conduct of the accused, however insulting and abusive those may be, will not
by themselves be sufficient to constitute abetment of suicide, unless those are reasonably
capable of suggesting that the accused intended by such acts consequence of suicide.74
Randhir Singh v. State of Punjab AIR 2005 SC 5097

1993 Cr Lj 1400 (P&H)

Sarojakshan v. State Of Maharashtra (1995) CrLJ 340 (Bom)

Cycriac 2005 Cr iLJ 4322 (Ker)
34

____________________________________________________________________________________
Where the married life of the husband and the wife was quarrelsome and it led to the
dejection and mortification of the wife, resulting into her committing suicide, it could not
be said that the husband abetted the wife to commit suicide. The mere fact that the
husband did not treat the wife properly and treated her with cruelty was not sufficient to
establish abetment. 75
In a case of suicide, the only allegation against the husband being that he used to come to
the house in a drunken state, used to beat her and abuse her and once he told her that he
did not bother if she lived or died and asked her to die, the court held that the attribution
of these acts to the accused husband does not constitute his abetting the commission of
suicide by the deceased wife.76
In Hansraj v. State,77 the only fact proved was frequent quarrels between husband and
wife, sometimes involving physical assault but no evidence was forthcoming to show that
the husband either aided or instigated the deceased to commit suicide. Accordingly, there
was no conviction under Sec. 306.
In case of alleged abetment of suicide there must be proof of direct or indirect acts of
incitement to the commission of suicide. Even the mere fact that the husband treated the
deceased wife with cruelty is not enough.78
In the case of Chanchal Kumari v. Union territory Chandigarh,79 the Supreme Court
observed that in the absence of dependable evidence in regard of actual abetment by any
one of the accused for the deceased to commit suicide, the accused are held entitled to be
acquitted.
In the case of Davender Singh v. State,80where purported demand made by the husband
had no direct nexus or immediate cause for commission of suicide by his wife, same
State of Gukarat v. Sunilkumar Kanaiyalal Jani 1997 Cri LJ 2014 (Guj)

Bommidi Rajamallu v. State of A.P, 2001 Cri LJ 1319 (AP)

AIR 2004 SC 2790

Kishangiri Mangalgiri Goswami v. State of Gujarat 2009(1)A.L.D. (Cr.) 924

AIR 1986 SC 752
35

____________________________________________________________________________________
would not amount to abetment of commission of such suicide. The prosecution should
prove its case beyond reasonable doubt.
In the present case, no doubt there were stray instances over the years of quarrels and
taunts with regard to various issues. But that happens in every family in the modern day.
Furthermore, these fights almost always ended up in reconciliation and an apology was
given by the accused persons. There was active role played by any of the accused to
instigate the deceased to commit suicide. They never intended that. The deceased wife
being very sensitive compared to normal Indian woman and hence the decision by her to
commit suicide cant be taken as an instigation by the accused.
d) Whether the three accused are guilty under Section 34 of the Indian Penal Code for
acts done by them in furtherance of common intention to cause dowry death?
Sec 34 IPC: When a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it were
done by him alone
To apply section 34, apart from the fact that there should be two or more accused, two
factors must be established:
There are two essentials which need to be satisfied for the application of this section:
1. Common intention to commit the crime
2. Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability.81
If participation of the accused in the crime is proved and common intention is absent,
Section 34 cannot be invoked.82
1. Common intention to commit the crime
Ramjee Rai v. State of Bihar, 2006 (13) SCC 229

Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083
36

____________________________________________________________________________________
Common intention implies a pre-arranged plan and acting in concert pursuant to the plan.
It must be proved that the criminal act was done in concert pursuant to the prearranged
plan. Common intention comes into being prior to the commission of the act in point of
time which need not be a long gap.83
In the present case, there is a decided lack of common intention to commit any crime.
The accused have been charged with the offences of dowry death under Sec 304B IPC,
Cruelty under Sec 498A IPC and Abetment to suicide under Sec 306 IPC. However, their
conduct shows no intention to commit any crime whatsoever.
Furthermore, there is a complete lack of concert between all the members of the family.
Common intention is a state of mind of an accused which can be inferred objectively
from his conduct displayed in the course of commission of crime as also prior and
subsequent attendant circumstances84
When an offence is sought to be proved only on circumstantial evidence, the allegations of

common intention under Section 34 normally cannot be established in absence of meeting of
mind, the overt act of the accused, by their conduct, by using the weapons, by their mere
utterance of words.
85
Before a court can convict can convict a person for any offence read with section 34, it
should come to a definite conclusion that the said person had a prior concert with one or
more other persons named for committing the said offence.
86
The Supreme Court in Amrik Singhs Case laid down that presence of clear and
87
unimpeachable evidence is a necessity to justify the inference of common intention at the

time of commission of offence.
In the present case the husband Shri. Suresh Goyal had gone to the maternal house of the
Ratanlal and Dhirajlal- The Indian Penal Code (33rd edi on, reprint 2013, pg no. 39)
Harjit Singh v. State of Punjab AIR 2002 SC 3040

Santosh Desai v. State of Goa, (1997) 2 Crimes 666 (Bom)

Krishna Govind v. State of Maharastra, (1963) Bom LR SC 789

Amrik Singh V. State Of Punjab,1972 CrLJ 465 SC
37

____________________________________________________________________________________
deceased and apologized for the behavior his family and requested the wife to return and she
obliged. Furthermore, after the deceased tried to commit suicide the accused persons gave
her water to vomit and tried their best to save her. In the process the deceased person
suffered some injuries which were made known through the post-mortem report. These were
because the victim was getting convulsions due to consumption of the poison. Thereafter,
the accused also called a doctor and referred her to the hospital. Thus it is humbly submitted
that there was no common intention commit any of the offences that the accused are charged
under. On the contrary there was common intention to save the deceased from dying.
2. Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability
Existence of a common intention in several persons, who commit the criminal act, and
the doing of criminal act in furtherance of that common intention are the essential
requirements for the applicability of Section 34. When these two requirements are
satisfied, each of such persons is liable for the entire criminal act in the same manner as if
he alone had done it irrespective of the fact whether he was present at the spot or not. The
essence of Section 34 is a simultaneous consensus of the minds of the persons
participating in the criminal action to bring about a particular result.88
Common intention can be proved either from direct evidence or by inference from the
acts or attending circumstances of the case and conduct of the parties.89Mere presence
along with the principal actor at the spot in the absence any premeditation or of a
pre-arranged plan amongst the accused themselves is not sufficient to prove or infer
common intention.90
In the present case, the deceased committed suicide and there was no cruelty or
harassment meted out to her and hence there was no participation of the accused person in
any sort of crime.
Arjun Thakur Alias Singh And Anr. v. State, 1994 CriLJ 3526
Pradeep v. Union Admin. (2006)10 SCC 608

Ram Nath v. State of Madhya Pradesh, AIR 1953 SC 420; Banwari v. State of U ar Pradesh AIR 1962 SC 1198
38

____________________________________________________________________________________
PRAYER
Wherefore it is humbly prayed before this Honble Court that in the light of facts presented,
39

____________________________________________________________________________________
issues raised, arguments advanced and authorities cited to adjudge, hold and declare that:
1. the accused persons are not guilty for murder under Section 302 read with Section 34
of Indian Penal Code,1860
2. the accused persons are not guilty under Section 304-B read with Section 34 of
Indian Penal Code, 1860
3. the accused persons are not guilty under Section 306 read with Section 34 of Indian
Penal Code, 1860
4. the judgement of the High Court of Rajasthan be upheld.
And pass any other order that this Honble Court deems fit in the interest of justice, equity
and good conscience. All for which the Respondents shall remain highly and forever
obliged.
Counsel for the Respondents

Sd/Mr. ______________
40

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Supreme Court of India

Appeal No.: 07/2016

Mr. Dinesh Goyal

Mrs. Shalini Goyal

Mr. Suresh Goyal

Written Memorial submitted on behalf of the Respondents

IN THE HONBLE SUPREME COURT OF INDIA

List of Abbreviations used

Judicial Decisions / Case Law

Issue for Consideration

IN THE HONBLE SUPREME COURT OF INDIA

Ratanlal&Dhirajlal, The Law on Evidence, 25th Edition, Lexis Nexis by B. M. Prasad,

Sarkar on Evidence, Volume 1, 15th Edition 2000, Wadhwa& Company by Sudipto

Sarkar on Evidence, Volume 2, 15th Edition 2000, Wadhwa& Company by Sudipto

Indian Penal Code, 1860

Criminal ProcedureCode, 1908

Indian Evidence Act, 1872

DICTIONARIES AND LEXICONS:

Websters English Dictionary

Blacks Law Dictionary, 7th Edition

IN THE HONBLE SUPREME COURT OF INDIA

ALL INDIA REPORTER

CRIMINAL LAW JOURNAL

CRIMINAL PROCEDURE CODE

INDIAN PENAL CODE

SUPREME COURT REPORT

Supreme Court Cases

Indian Evidence Act

IN THE HONBLE SUPREME COURT OF INDIA

Name of Case Law

Chandra Mohan Tiwari v. State of

AIR 1992 SC 891

Makin v. Attorney General for New

Dal Singh v. King Emperor

Ibrahim v. King Emperor

AIR 1914 PC 155

Taba Singh v. King Emperor

Mohinder Singh v. King Emperor

AIR 1932 PC 234

Eswaramurthi v. King Emperor

Pritam Singh v. State of Punjab

AIR 1950 SC 169

Home Department v. Abdul Manan

State Of Rajasthan v. Shera Ram

CRIMINAL APPEAL NO.1502 OF 2005

State of M.P. v. Bacchudas

AIR 2007 SC 1236

Shivaji Sahabrao Bobade v. State of

1973 SCC (2) 793

Ramesh Babulal Doshi v. State of

(1996) 9 SCC 225

Jaswant Singh v. State of Haryana

(2000) 4 SCC 484

Raj Kishore Jha v. State of Bihar

(2003) 11 SCC 519

State of Punjab v. Karnail Singh

(2003) 11 SCC 271

State of Punjab v. Phola Singh

Suchand Pal v. Phani Pal

(2003) 11 SCC 527

Sachchey Lal Tiwari v. State of U.P

(2004) 11 SCC 410

State of Kerala v. C.P. Rao

(2011) 6 SCC 450