BEFORE

THE HONBLE

SUPREME

COURT OF

HINIA
(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL APPEAL. NO. 1612 OF 2015

In the matter concerning:

Danny.Petitioner

vs.

1. State of Hinia

2. Hinia Mahila Seva Sansthan...........Respondents

-Table of Contents- -Petitioner-

TABLE OF CONTENTS

Index of AbbreviationsIII

Index of Authorities.....IV

Case LawsIV

Statement of JurisdictionVII

Statement of FactsIX

Statement of Issues...XI

Summary of Pleadings..01

Pleadings...04

Prayer21

II
-Table of Contents- -Petitioner-

INDEX OF ABBREVIATIONS
: Section

: Sections

: Paragraph

: Paragraphs

Hin : Hinia

A.C. : Appellate

Cases

AIR : All India

Reporter

Anr. : Another

Bom. : Bombay

Cri.L.J. : Criminal

Law Journal

K.B. : Kings

Bench

Mad. : Madras

n. : Note

Ors. : Others

H.P.C : Hinian penal

code

SC : Supreme

Court

III
-Table of Contents- -Petitioner-

SCC : Supreme

Court Cases

Sd/- : Signed

Supp. :

Supplementary

U.P. : Uttar

Pradesh

U.S. : United

States

U.T. : Union

Territory

v. : Versus

IV
 INDEX OF AUTHORITIES
Error: Reference source not foundN. Suriyakala vs. A. Mohan
(2007) 9 SCC 196
1. C.C.E vs. Standard Motor Products (1989) AIR 1298 (SC)
2. Janshed Hormusji Wadia vs. Board of Trustees, Port of
Mumbai (2004)3 SCC 214 (SC)
3. Balakrishna vs. Rmaswami (1965) AIR 195 (SC)
4. Dale & Carrington Invt. Ltd. vs. P.K. Prathapan (2005) 1
SCC 212(SC).
5. Sir Chunilal Mehta and Sons, Ltd. vs. Century Spinning and
Manufacturing Co. Ltd. (1962) AIR 1314(SC).
6. MadanLal vs. Mst. Gopi and Anr (1980) 4 SCC 255(SC);
7. Narendra Gopal Vidyarthi vs. Rajat Vidyarthi (2009) 3 SCC
287(SC);
8. Commissioner of Customs (Preventive) vs. Vijay Dasharath
Patel (2007) 4 SCC 118(SC);
9. Metroark Ltd. vs. Commissioner of Central Excise, Calcutta
(2004) 12 SCC 505(SC);
10. West Bengal Electricity Regulatory Commission vs. CESC
Ltd. (2002) 8 SCC 715(SC).
11. Cholan Roadways Ltd. vs. G. Thirugnanasambandam (2005)
AIR 570 (SC)
12. Ganga Kumar Srivastava vs. State of Bihar (2005) 6 SCC
211(SC).
13. Kathi Raning Rawat vs. The State of Saurashtra (1952) AIR
991 (All),
14. Achyut Adhicary vs. West Bengal (1963) AIR1039 (SC).
15. Pritam Singh vs. The State (1950) AIR 169 (SC).
16. Sripur Paper Mills vs. Commr. of Wealth Tax (1970)
AIR1520 (SC)
17. Om Prakash Sood vs. UOI (2003) 7 SCC 473(SC).
18. Dipanwita Roy vs. Ronobroto Roy, appeal No. 9744 of 2014
in the supreme court out of S.L.P No. 5694 of 2013
19. Rajeshwari Singh vs. State of U.P.;1988 A.Cr.R 392 at p. 399
20. Badwaik vs. Lata Nandlal Badwaik 2014 SCC p. 456
21. Banarassi Dass vs. Teeku dutta 2005 4 scc p. 449
22. Mr. X v. Mrs. Z 1958 SC p. 441
23. Goutam Kundu vs. State of West Bengal and anr. 1993 AIR
2295, 1993 SCR (3) 917
24. Cooper vs. Cooper (1950) W.N. 200 (H.L.)
25. Batram vs. Batram (1944) p. 59 at p.
-Index of Authorities- -Petitioner-

26. Narayan Ganesh Dastane vs Sucheta Narayan Dastane; 1975

AIR 1534, 1975 SCR (3) 967
27. Ravule hariprasada Rao vs. State, [1951] SCR 322.
28. Bansiya vs. State of Rajasthan, 1996 Cr LJ 1393 ( Raj)
29. Shunkara Suri Babu vs. State, 1996 CrLJ 1480 (AP)
30. Sarala Prabhakar vs. State of Maharashtra, 1990 Cr LJ 407
31. Pukh Raj, (1953) 3 Raj 983
32. Abraham, AIR 1960 Ker 236
33. Mohammed Sabad Ali vs. Thuleswar Borah, (1954) 6 Ass
274
34. Jogayya, (1887) 10 Mad 353,354; Vaz vs. Dias, (1929) 32
Bom LR 103.
35. Abraham vs. State of Kerala, AIR 1960 Ker 236:1960 CrLJ
910 (Kant)
36. Baby Kumar Janardana vs. State, 2003 CrLJ 1425 (Kant).
37. Gourishankar vs. Bachha Singh, AIR 1939 Pat27: 177 IC 896
(2): 39 CrLJ 980.
38. Karumanchi Veerangiah vs. Katta Mark, 1976 CrLJ 1690:
1976 Andh L T 295: (1976) 1 Andhra Pradesh LJ (HC) 344.
39. Hukumchand vs. Chandmal, AIR 1950 MB 25:51 CrLJ 764.
40. Bina vs. V. Vanspall, 160 IC 420 (1) ;37 CrLJ 296.
41. Venkataranam, AIR 1948 Mad 9: 48 CrLJ 970:60 Mad LW
271: (1947) 1 Mad LJ 359.
42. Sheo Narayayan Jaiswal vs. State of Bihar, AIR 1953 PAT
225
43. Thakarsi Damjee vs. Crown AIR 1952 NAG 253
44. Satyendra Nath Mukherji (1947) Cal 97.
45. Jaswant Lal, AIR 1968 Sc 700; Dani Singh, AIR 1963 PAT
52; Ramn Niranjan, (1964) 1 Cr LJ 614
46. Per Lord HALDANE in Lake vs. Simmons, (1927) 487
47. Per Lord SUMMER in ibid
48. State of Gujarat vs. Jaswant Lal, AIR 1968 SC 700
49. Hazi Badal vs. Abid Hussain, 1984 All Cr R 51
50. Vinod Kumal Goyal vs. Union Territory, 1991 CrLJ 2333
(Punj)
51. PG Gupta vs. State, (2008) 101 DLT 19
-Index of Authorities- -Petitioner-
 STATEMENT OF JURISDICTION

The Petitioner has filed the Special Leave Petition under Article. 136 of

the Constitution of Hinia. The Honble Supreme Court of Hinia has the

jurisdiction to adjudicate the instant case under Art.136 of the

Constitution of Hinia as there is a substantial question of law involved in

the case.
 STATEMENT OF FACTS

1. Danny and Sonia got married under the Hindu Marriage Act,
1955 on 16th August, 2014.However prior to her marriage Sonia
was in a relationship with Tyson for 6 years. Averse to her
marriage with Tyson, Sonia was forcefully made to advertise in a
matrimonial website that made the match with Danny.

2. At the time of marriage, Danny demanded a dowry worth of 16

lakhs for which Sonias family refused but her parents transferred
a property worth 20 lakhs to Sonias name. Later, Sonia had
entrusted this property to Danny in good faith. After 3 months of
marriage Sonia demanded Danny to transfer all his ancestral
property her name. Danny refused to do so. As a result, Sonia
threatened Danny of dire consequences on charges of harassment
if he doesnt do the same. This lead to several fights between the
duo. Sometimes it took the form of physical violence too.

3. Sonia and Tyson used to speak on phone for hours and hours.
when Danny enquired about it Sonia refused to answer the
question. Danny checked Sonias mobile and found there were
many calls from Tyson. Danny asked Sonia about Tyson for
which Sonia confessed about her previous relationship and
assured him that they were just friends. This led to several fights
and quarrel between both of them at several instances.

4. Being upset over the everyday fights, Sonia couldnt concentrate

at work. One day, Danny turned up at Sonias office and they had
an open disagreement which led to Danny shouting at Sonia
using obscene language. Due to this, she was fired from work.
She talked about the incident to Tyson. At several instances
Tyson and Sonia met and talked about her marital issues. Sonia
-Statement of Facts- -Petitioner-

also discovered that Danny has dishonestly misappropriated the

property giver to her by her parents at the time of marriage.

5. A month later, Sonia became pregnant and informed to her

husband. Danny instead of getting happy accused her of having
committed adultery. Sonia denied the allegation, which lead
again to a fight between them culminating in her being subject to
both mental and physical harassment. Due to that she left for her
parents home to live.

6. One day she poured kerosene on herself and set her ablaze and
starts shouting. Hearing her shouts, She was taken to the nearest
hospital by her parents and neighbours. NGO named Hinia
Mahila Seva Sansthan came to know about this incident and
contacted her in hospital. Hinia Mahila Seva Sansthan filed an
FIR on behalf of Sonia against Danny at the nearest Police
Station under various sections.

7. The Honble Magistrate Court issued summons to Danny to be

present in the next hearing. The absence of Danny in the Court,
led to an arrest warrant being issued against him. He tries to settle
the matter with Sonia, But he gets arrested. Before the Honble
Magistrate Court, Danny accuses Sonia and Tyson of adultery.
Court issued summons to Tyson. In the next hearing Sonia and
Tyson denied the charges made by Danny.

8. Danny filed an application for a DNA test to determine the

paternity of the child. The Court ordered for a DNA test for
Danny, Sonia and Tyson. On the Courts direction, the trio gave
their blood samples which were lost due the negligence of the
hospital authorities. The Court redirects all three of them to
undergo DNA test once again for which Sonia denies to undergo
the same stating it infringes her right to privacy.
-Statement of Facts- -Petitioner-

9. After hearing arguments from both sides the Honble Magistrate

Court held Danny guilty under Sec 498A, Sec 294(b), Sec 406
and Sec 500 of HPC, Sec 3 of The Dowry Prohibition Act and
Sec 3 of The Domestic Violence Act and convicted Danny with
imprisonment and fine. After an unsuccessful appeal under
section 374 of Code of Criminal Procedure, the Petitioner has
approached this Honble Apex Court through a special leave
petition.
 STATEMENT OF ISSUES

1.1 WHETHER THE SPECIAL LEAVE PETITION UNDER

ART.136 OF CONSTITUTION OF HINIA IS MAINTAINABLE OR

NOT?
2.1 WHETHER SUBJECTING THE RESPONDENT TO DNA TEST

VIOLATES THE RIGHT TO PRIVACY ENSHRINED UNDER

ART.21 OF THE CONSTITUTION OF HINIA?

3.1 WHETHER THE CONVICTION OF THE PETITIONER U/S. 498-

A (CRUELTY), SEC. 294-B (USAGE OF OBSCENE

LANGUAGE), SEC.500 (DEFAMATION) OF THE PENAL

CODE OF HINIA IS VALID OR NOT?

4.1 WHETHER THE CHARGES LEVELLED AGAINST THE

ACCUSED U/S. 406 AND SEC. 3 OF THE HINIAN PENAL

CODE AND DOWRY PROHIBITION ACT ARE BACKED BY

PROPER EVIDENCE TO BASE CONVICTION UPON?

 SUMMARY OF PLEADINGS

1. WHETHER THE SPECIAL LEAVE PETITION UNDER ART.136 OF

CONSTITUTION OF HINIA IS MAINTAINABLE OR NOT?

The petition filed under Art.136 of the Constitution of Hinia is

maintainable and is valid to be heard by this Court. The Constitution
of India under Article 136 vests the Supreme Court of India with a
special power to grant special leave to appeal against any judgment
or order or decree in any matter or cause passed or made by any
Court/tribunal in the territory of India. Accordingly, the Petitioner
after being denied an appeal U/s. 374 of C.r.P.c. has approached this
Honble Apex Court challenging the order of conviction passed by
the magistrate Court. However this Court has imposed certain self-
restrictions on the admissibility of a SLP. The court has often
observed that it should not grant special leave, unless it is shown that
exceptional and special circumstance exist, that substantial and
grave injustice has been done and the case in question presents
features of sufficient gravity to warrant a review of the decision
appealed against. In the case at hand the Petitioner has been denied
appeal in an arbitrary manner without proper appreciation of the
grounds. It is further brought to the humble notice of this Court that
the conviction has been made by the magistrate Court without proper
appreciation of facts and evidence. Further, the application filed by
the Petitioner for subjecting the Respondent lady to undergo a DNA
test to prove her fidelity has been decided in favour of the
Respondent without heeding to the well established judgments of this
Honble Court. Thus, the interest of justice requires this Honble
Apex Court to hear the matter and this petition under Art. 136 is
maintainable.
-Pleadings- -Petitioner-

2. WHETHER SUBJECTING THE RESPONDENT TO DNA TEST

VIOLATES THE RIGHT TO PRIVACY ENSHRINED UNDER ART.21

OF THE CONSTITUTION OF HINIA?

It is a legally established principle that in a matter where the
paternity of a child is in question or the fidelity of the pregnant
women is in question, DNA test can be ordered to be conducted on
the accused mother or the child by this Honble Court in a manner
prescribed by it. This order does not violate the Right to privacy of
a woman in any manner. Here the need to prove the adultery or the
fidelity overweighs the Right to privacy. If privacy is the sole
concern of the Respondent lady, then the Court can order for the tests
to be carried on veiled manner. The reports of the same can be
submitted before this Honble Court in a closed envelope ie. in a
manner similar to which this Court deals with socially sensitive
issue. Despite the consequences of a DNA test, it is permissible for a
court to allow it, if it was eminently needed, after balancing the
interests of the parties. The interest of justice is best served by
ascertaining the truth and the court should be furnished with the best
available science and may not be left to bank upon presumptions,
unless science has no answer to the facts in issue. In the case at hand
it is of utmost importance for the Petitioner to establish the
adulterous relationship of his wife to reverse his own conviction and
to prove charges levelled against him fallacious. Thus this Court is
duty bound stick to the principle established by its own self and grant
a fresh order subjecting the Respondent to undergo DNA test.
3. WHETHER THE CONVICTION OF THE PETITIONER U/S. 498-A
(CRUELTY), SEC. 294-B (USAGE OF OBSCENE LANGUAGE), SEC.

406 (CRIMINAL BREACH OF TRUST), SEC.500 (DEFAMATION)

OF THE PENAL CODE OF HINIA IS VALID OR NOT?

It is brought to the humble notice of this Honble Apex Court that no

conviction under a criminal statute can be possible without properly
establishing the mensrea, without proper adducing of evidence. By
convicting the Petitioner sans the two important entities of criminal
-Pleadings- -Petitioner-

jurisprudence, the Honble magistrate Court has erred miserably. The

Court has acted out of sympathy for Respondent lady and has erred
in severalfactual and legal standpoints. Now, onus is upon this
Honble Court to re-appreciate the facts and circumstances of this
case to reverse the order of conviction. This Court has time and again
held against the conviction of an innocent. The established principle
of criminal law is that the benefit of doubt must go to the accused.
The Honble magistrate Court has not heeded to the principle and has
based its conviction on inadequate piece of evidences whose validity
in itself is an issue. In the absence of a direct piece of evidence or
circumstantial evidence the Court cannot convict an accused. The
Petitioner is clearly a victim of circumstances. Thus this Court is
duty bound to re-appreciate the arguments and evidence to invalidate
the judgment of conviction passed by the magistrate Court.

4. WHETHER THE CHARGES LEVELLED AGAINST THE ACCUSED U/S.

406 AND SEC. 3 OF THE HINIAN PENAL CODE AND DOWRY

PROHIBITION ACT ARE BACKED BY PROPER EVIDENCE TO BASE

CONVICTION UPON?

It is humbly submitted before this Honble Apex Court of Hinia that the
Honble Magistrate Court has not properly weighed the factual and
circumstantial evidence in the case at hand and convicted the Petitioner
arbitrarily. It is worthy to note that according to the Dowry prohibition
act itself there is a clear distinction drawn upon the term Dowry and
Gift. Both are distinct terms. It is an admitted fact that the Petitioner
sought dowry from the Respondent. Streedhan is very often
misinterpreted as dowry even when the law of the land has an entirely
different definition for it. The domestic law perceives dowry as any
property or valuable security given or agreed by the brides side to the
family of the bridegroom before, during or after marriage, by exploiting
-Pleadings- -Petitioner-

or threatening the girl or her family while Streedhan is voluntary gift

given by members of bridal side to the bride as a stepping stone to
establish her own property.

PLEADINGS

1. THE SPECIAL LEAVE PETITION UNDER ART.136 OF

CONSTITUTION OF HINIA IS MAINTAINABLE :

The Petitioner humbly submits that the special leave petition under
article 136 of the Constitution of Hinia is absolutely maintainable. It is
brought to the humble notice of this Honble Court that the Petitioner
after being dissatisfied by the judgment of the magisterial Court decided
to approach the Sessions Court through an appeal U/s. 374 of the C.r.Pc.
However the appeal was rejected. The interest of justice and equity
requires the reappraisal of certain facts and evidence that lead to the
conviction. Thus the Petitioner has approached this Honble Court. The
grounds which lead to the filing of this petition by the Petitioner are
-Pleadings- -Petitioner-

twofold. Firstly, It is the right of every person to appeal against an order.

When the normal appeal is rejected it is proper for him to approach the
higher judiciary; Secondly, unlike a normal case, here there is a
substantial question of law that is involved viz. regarding the conduction
of DNA test on the Respondent. This is relevant to prove misconduct of
the Respondent and absolve the Petitioner of charges levelled.

1.1. Special leave petition under art. 136 of the Constitution

of Hinia.

The Constitution of India under Article 136 vests the Supreme

Court of India with a special power to grant special leave to
appeal against any judgment or order or decree in any matter or
cause passed or made by any Court/tribunal in the territory of
India. This is special power bestowed upon the Supreme Court of
India which is the Apex Court of the country to grant leave to
appeal against any judgment in case any substantial constitutional
question of law is involved or gross injustice has been done. In
N. Suriyakala Vs. A. Mohan doss and Others 1 the Supreme
Court observed with regard to scope of Article 136
that Article 136 of the Constitution is not a regular forum of
appeal at all. It is a residual provision which enables the
Supreme Court to interfere with the judgment or order of any
court or tribunal in India in its discretion. In the case at hand
there is a substantial question of law is regarding the conduction
of DNA test for the second time that is involved. Besides, the
Petitioner has also been subjected to grave injustice by an erred
conviction and a rejected appeal. So the Court must accept the
special leave petition.

It is humbly submitted that the present appeal is maintainable

under Article 136 of the Constitution of India. Article 136 is the
residuary power of SC to do justice where the court is satisfied

1
(2007) 9 SCC 196
-Pleadings- -Petitioner-

that there is injustice. The jurisdiction of Supreme Court can

always be invoked when a question of law of general public
importance arises. 2. In the present case, the impugned order was
mechanically passed without application of mind and proper
appraisal of evidence, the order is incorrect in law. 3. Also, in
case at hand the substantial questions of law are involved. The
jurisdiction conferred under Art. 136 on the SC is a corrective
one and not a restrictive one. A finding of facts may give rise to a
substantial question of law, and therefore, the SC is not precluded
from going into the question of facts. [Arguendo] Even if we
assume that the case doesnt involve substantial question of law,
SC in the exercise of its power conferred under article 136 can
entertain the present appeal. Article 136 uses the wording in any
cause or matter. This gives widest power to this court to deal
with any cause or matter, even if it involves question of fact.

1.2. That a grave injustice has been caused to the Petitioner

and hence the petition is maintainable to give a remedy to the

Petitioner
It has been held by this Honble Court that when a question of
law of general public importance arises, or a decision shocks the
conscience of the court, its jurisdiction can always be invoked.
Article 136 is the residuary power of SC to do justice where the
court is satisfied that there is injustice. 2 The principle is that this
court would never do injustice nor allow injustice being
perpetrated for the sake of upholding technicalities. 3 In any case,
special leave would be granted from a second appellant decision
only where the judgment raises issues of law of general public
importance.4 Here though the matter is personal in nature the
outcome of the case can help many common men who are made

2
C.C.E v Standard Motor Products (1989) AIR 1298 (SC), see also H.M. Seervai, Constitutional Law of India
(4th edn. Vol 2 2010).
3
Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC 214 (SC).
4
Balakrishna v Rmaswami (1965) AIR 195 (SC).
-Pleadings- -Petitioner-

victims of circumstances. It is worthy to note that in this case

appeal was itself rejected and hence the Petitioner had no other
go but to approach this Honble Court. At the risk of repetition it
is brought to the humble notice of this Honble Court that the
Petitioner in this case has been subjected to improper conviction.
The grounds upon which an appeal was preferred were not well
appraised by the Sessions Court. Here certain questions are raised
before this Court, is it the end of the road for the Petitioner in
case where his appeal has been rejected? Is it not his legal right to
challenge an order? Is it proper for this Apex Court to keep mum
when an innocent citizen is maliciously prosecuted with false
allegations based against him? The answer for these questions
requires this Court to accept the present petition and hear the plea
of the Petitioner for whom this is the only ray of hope.

1.3. There is a Substantial question of law that is involved in

the matter hence the Petition is maintainable

Where findings are entered without considering relevant

materials and without following proper legal procedure, SC
interference is called for.5 The expression "substantial question of
law" is not defined in the Law. Nevertheless, it has acquired a
definite connotation through various judicial pronouncements. A
Constitution Bench6 of this Court, while explaining the import of
the said expression, observed that: The proper test for
determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general
public importance or whether it directly and substantially affects
the rights of the parties and if so whether it is either an open
question in the sense that it is not finally settled by this Court or
by the Privy Council or by the Federal Court or is not free from
7
difficulty or calls for discussion of alternative views. It is

5
Dale & Carrington Invt. Ltd. v P.K. Prathapan (2005) 1 SCC 212(SC).
6
Sir Chunilal Mehta and Sons, Ltd. v Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314(SC).
7
ibid
-Pleadings- -Petitioner-

submitted that, the present facts in issue satisfy all of the above
mentioned criteria. The case involves the matter of general public
importance and it directly and substantially affects the rights of
the parties as the order is erroneous and prejudicial to the interest
of justice. In the light of the facts that huge amount of cases
aroused under same facts and circumstances, it is submitted that
the question is indeed an open question. It will, therefore, depend
on the facts and circumstance of each case whether a question of
law is a substantial one and involved in the case

However, a finding of facts may give rise to a substantial

question of law, inter alia, in the event the findings are based on
no evidence and/or while arriving at the said finding, relevant
admissible evidence has not been taken into consideration or
inadmissible evidence has been taken into consideration or legal
principles have not been applied in appreciating the evidence, or
when the evidence has been misread.8

Even if we assume that the case doesnt involves substantial

question of law, SC in the exercise of its power conferred under
article 136 can entertain the present appeal. Even on the question
of fact, wrong question leads to a wrong answer. In such cases,
even errors of fact can be the subject matter of judicial review
under Art. 136.9 It is open to the SC to interfere with the findings
of the fact given by the Inferior Court, if the latter has acted
perversely or otherwise improperly.10 The SC is not precluded
from going into the question of facts under article 136, if it
considers it necessary to do so. 11 Article 136 uses the wording in
any cause or matter. This gives widest power to this court to
8
MadanLal v Mst. Gopi and Anr (1980) 4 SCC 255(SC); see also Narendra Gopal Vidyarthi v Rajat Vidyarthi
(2009) 3 SCC 287(SC); see also Commissioner of Customs (Preventive) v Vijay Dasharath Patel (2007) 4 SCC
118(SC); see also Metroark Ltd. v Commissioner of Central Excise, Calcutta (2004) 12 SCC 505(SC); see also
West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002) 8 SCC 715(SC).
9
Cholan Roadways Ltd. v G. Thirugnanasambandam (2005) AIR 570 (SC)
10
Ganga Kumar Srivastava v State of Bihar (2005) 6 SCC 211(SC).
11
Kathi Raning Rawat v The State of Saurashtra (1952) AIR 991 (All), see also Achyut Adhicary v West Bengal
(1963) AIR1039 (SC).
-Pleadings- -Petitioner-

deal with any cause or matter.12 It is, plain that when the Supreme
Court reaches the conclusion that a person has been dealt with
arbitrarily or that a court or tribunal has not given a fair deal to a
litigant, then no technical hurdles of any kind like the finality of
finding of facts, or otherwise can stand in the way of the exercise
of this power. 13

2. WHETHER THE WHETHER SUBJECTING THE RESPONDENT TO

DNA TEST VIOLATES THE RIGHT TO PRIVACY ENSHRINED

UNDER ART.21 OF THE CONSTITUTION OF HINIA?

In the light of the recent judgment of the Supreme Court of Hinia, it is

humbly submitted on behalf of the Petitioner that there is no

infringement of right to privacy involved in subjecting the Respondent

to a DNA test after total compliance with such order. At this juncture it is

noteworthy that this Honble Court would pass such an order only after

thoroughly considering the fact that the Respondent is a woman and no

prejudice must be caused to her dignified living. On the other hand the

Petitioner humbly submits that he is alleging adultery based on certain

important events that ensued during the matrimonial life. The Petitioner

has never had any sexual relationship with the Respondent, This coupled

with the proximity between the Respondent and her ex- boyfriend Mr.

Tyson for instance has raised serious suspicion in the mind of the

Petitioner regarding the fidelity of the Respondent and the parency of the

child. It is pertinent to note that the Petitioner reserves the right to seek

12
Pritam Singh v The State (1950) AIR 169 (SC).
13
Sripur Paper Mills v Commr. of Wealth Tax (1970) AIR1520 (SC); see also Om Prakash Sood v UOI (2003) 7
SCC 473(SC).
-Pleadings- -Petitioner-

for an order for conduction of DNA test on the Respondent from this

Court after the recent judgment of this Court that validates such test.
2.1 The interest of the child is involved so test must be ordered.

This Honble Court must consider the strong interest of the child
that is involved in this case. This prompts the Petitioner to seek
for the conduction of the test. The name of the father is important
for the child not only for fulfilment of legal formalities in the
future but also morally and socially it is very important. This is
deeply affected when the Petitioner himself raises questions over
paternity of a child. Thus the conduction of test is the only proper
method that can bring out the truth more forcefully. DNA testing
is the most legitimate and scientifically perfect means, which the
husband could use, to establish his assertion of infidelity. This
should simultaneously be taken as the most authentic, rightful
and correct means also with the wife, for her to rebut the
assertions made by the husband, and to establish that she had not
been unfaithful, adulterous or disloyal. If the wife is right, she
shall be proved to be so,14 So the interest of justice requires the
employment of the most accurate and scientifically fool proof,
viable method to bring out the effective truth. It is noteworthy
that the Respondent had once already given the samples for the
test on the orders of the Court. If the privacy is really being
infringed then why did she give samples in the first instance? The
other question that is raised before this Honble Court is, should
the Petitioner suffer due to the privacy that is allegedly being
infringed? Non- conduction of these tests would prove difficult
for proving adultery against the Respondent.

2.2 The test is the only means to prove adultery against the

Respondent and hence must be allowed:

14
Dipanwita Roy v. Ronobroto Roy, appeal No. 9744 of 2014 in the supreme court out of S.L.P No. 5694 of
2013
-Pleadings- -Petitioner-

It is further submitted that it is very difficult to prove adultery as

such with proper evidence. This is more so due to the act itself
being within four walls and is done in secrecy. 15 However the
established principle of criminal jurisprudence is that no stone
must be left unturned for adducing proper evidence. Here the test
report is the unshakable evidence which can be the basis for
proving the fidelity or infidelity of the wife.hence the Court must
order for the test to be carried out. In Nandlal Wasudeo Badwaik
vs Lata Nandlal Badwaik16 and Another (2014) also the Supreme
Court concluded that the result sought by conducting DNA test is
correct and truthful. Thus, at present DNA test can be considered
as conclusive evidence to prove infidelity.

In the case Banarassi Dass v. Teeku dutta 17, it was this very Court
that held that there was no availability of such tests during the
drafting of this code in the 19th century. Therefore the law must
change with technology and make full use of it. So DNA test can
be ordered for proving fidelity. So the same settled principle of
law can be applied to this case to subject the Respondent to DNA
test. Further it is pertinent to note at this juncture that the
Respondent is relatively well off and influential as stated in the
facts of the case. So it cannot be ruled out that the DNA samples
in the first instance were destroyed wantonly. The Court must
thus reorder for the conduction of such test.

This Court has previously ordered for conduction of such tests in

the case, Goutam Kundu v. State of West Bengal and anr. 18 in the
instant case the Court ordered for conduction of blood test to
prove the fidelity of the wife. It held that such tests were
perfectly constitutional and it had nothing to infringe privacy.
Commission of adultery is not a private act, but an offence.
15
Rajeshwari Singh v. State of U.P. , 1988 A.Cr.R 392 at p. 399;
16
2014 SCC p. 456
17
2005 4 scc p. 449
18
1993 AIR 2295, 1993 SCR (3) 917
-Pleadings- -Petitioner-

Conduction of tests to prove the same constitutes procuring of

evidence the court held. In another case, W v. W19 this Honble
Court passed a decree in favour of the husband. It allowed for the
test to be conducted on the wife but at the same time it did not
allow for bastardizing the child and took safeguards to protect the
child.

2.3 The tests can be conducted as to not affect the Respondent and
infringe her right to privacy:

The case of Ravindra v. Sonam is brought to the humble notice of

this Honble Court at this juncture. In this case the Delhi High
Court followed a very secretive approach where the proceedings
were carried on in the chamber of the judge and with utmost
privacy. The names of the parties also have not been disclosed till
date. The results of the DNA test ordered in the case were
brought in a closed envelope, the access to which was limited. A
similar approach can be adopted by this Court to protect the
dignity of the lady Respondent.

Here it is worthy to note that it is post test publicity that infringes

privacy. The Court can take steps to curb the same and ensure the
privacy of the Respondent is not infringed. This Honble Court in
the case, Mr. X v. Mrs. Z held that DNA test can be conducted for
proving adultery and it does not infringe the privacy of the Wife.

Thus this Court must order for the conduction of the DNA test on the

Respondent as the interest of justice requires it is ordered so.

3. WHETHER THE CONVICTION OF THE PETITIONER U/S. 498-A

(CRUELTY), SEC. 294-B (USAGE OF OBSCENE LANGUAGE),

19
1958 SC p. 441
-Pleadings- -Petitioner-

SEC.500 (DEFAMATION) OF THE PENAL CODE OF HINIA IS

VALID OR NOT?

It is humbly submitted on behalf of the Petitioner that the Respondents

case under Sec. 498-A of the Hinian Penal code is malicious and highly
self destructive with self contradictory factual evidence. The Petitioner
at the outset denies all the charges of cruelty that have been levelled
against him. He further submits that though he was subject to mental
agony and physical abuse by the Respondent at various instances during
the matrimonial affair, though the Respondent exhibited her indifferent
attitude towards the Petitioner, though she discussed personal affairs
with a third person, though the Respondent threatened the Petitioner on
many occasions, the Petitioner exhibited exemplary attitude and
behaviour towards the Respondent and the charges of cruelty and
defamation are baseless and malicious. The conviction without adequate
material evidence is highly erroneous and deserves to be reversed by this
Honble Court.

3.1 Self contradictory stands taken by the Respondent

The Respondent has alleged cruelty by the Petitioner in the case

at hand. However it is important to consider two legal
standpoints. Firstly, the lack of proper evidence to prove cruelty
committed by the Petitioner over the Respondent. Secondly, the
Respondent alleges that the child impregnated is born out of the
legal wedlock. It is an established legal point that no Court can
convict an accused without proper evidence. Also, the act of
sexual intercourse itself amounts to condonation of cruelty, if at
all it was committed as alleged by the Respondent. In either way
the Petitioner deserves to be absolved of the charges levelled
against him.

Condonation means forgiveness of the matrimonial offence and

the restoration of offending spouse to the same position as he or
-Pleadings- -Petitioner-

she occupied before the offence was committed. To

constitute condonation there must be, therefore, two things :
forgiveness and restoration. The evidence of condonation in this
case is, in our opinion, as strong and satisfactory as the evidence
of cruelty. But that evidence does not consist in the mere fact that
the spouses continued to share a common home during or for
some time after the spell of cruelty. Cruelty, generally, does not
consist of a single, isolated act but consists in most cases of a
series of acts spread over a period of time. Law does not require
that at the first appearance of a cruel act, the other spouse must
leave the matrimonial home lest the continued co-habitation be
construed as condonation. Such a construction will hinder
reconciliation and thereby frustrate the benign purpose of
marriage laws. The evidence of condonation consists here in the
fact that the spouses led a alleged normal sexual life despite the
Petitionrs acts of cruelty. This is not a case where the spouses,
after separation, indulged in a stray act of sexual intercourse, in
which case the necessary intent to forgive and restore may be
said to be lacking. Such stray acts may bear more than one
explanation. But if during co-habitation the spouses,
uninfluenced by the conduct of the offending spouse, lead a life
of intimacy which characterises normal matrimonial relationship,
the intent to forgive and restore the offending spouse to the
original status may reasonably be inferred. There is then no scope
for imagining that the conception of the child could be the result
of a single act of sexual intercourse and that such an act could be
a stark animal act unaccompanied by the nobler graces of marital
life. One might then as well imagine that the sexual act was
undertaken just in order to kill boredom or even in a spirit of
revenge. Such speculation is impermissible. Sex plays an
important role in marital life and cannot be separated from other
factors which lend to matrimony a sense of fruition and
fulfilment. Therefore, evidence showing that the spouses led a
normal sexual life even after a series of acts of cruelty by one
-Pleadings- -Petitioner-

spouse is proof that the other spouse condoned that cruelty. The
doctrine of condonation was established by the old ecclesiastical
courts in Great Britain and was adopted by the English Courts
from the canon law. 'Condonation' is a technical word which
means and implies a conditional waiver of the right of the injured
spouse to take matrimonial proceedings. It is not 'forgiveness' as
commonly understood. In England condoned adultery could not
be received because of the express provision contained in section
3 of the Matrimonial Causes Act, 1963 which was later
incorporated into section 42(3) of the Matrimonial Causes Act,
1965. In the absence of any such provision in the Act governing
the charge of cruelty, the word 'condonation' must receive the
meaning which it has borne for centuries in the world of law.
'Condonation' under section therefore means conditional
forgiveness, the implied condition being that no further
matrimonial offence shall be committed. 20 So going by the above
well laid principle we can say that the Respondent has condoned
the Petitioner if at all the alleged acts of cruelty were committed.
No prejudice shall be caused to the rights of the Petitioner due to
such an assumption. The Petitioner however is stating that the
pregnancy of the Respondent was not due to him. In that case, the
next question comes to the evidence for conviction u/s. 498-A of
the Hinian Penal code. The Supreme Court has time and again
held that unless there is clear evidence, either material or through
facts and circumstances of a case that the act was committed with
a guilty mind, one cannot be convicted for an offence. 21In the
case at hand, no credible evidence has been adduced by the
Respondent that is worthy enough to convict the Petitioner. The
Sessions Court has acted out of sympathy in convicting the
Petitioner. The same deserves to be dismissed.

20
(1) Cooper vs. Cooper (1950) W.N. 200 (H.L.) (2) Per Scott L. J. in Batram vs. Batram (1944) p. 59 at p.
Narayan Ganesh Dastane vs Sucheta Narayan Dastane; 1975 AIR 1534, 1975 SCR (3) 967
21
Ravule hariprasada Rao v. State, [1951] SCR 322.
-Pleadings- -Petitioner-

Conviction under Section 498-A cannot be made without

adducement of proper evidence.22 The accused was alleged to
harass the wife and subject her to cruelty but there was no
evidence to show that all this was done in relation to demand for
dowry. The deceased was of slow tolerance and the usual
domestic quarrel led her to commit suicide. In this situation, the
accused was acquitted by giving him the benefit of doubt. 23 The
cruelty within the meaning of sec 498-A, IPC had been explained
to establish that harassment or cruelty to wife was to force her to
cause grave bodily injury to herself or to commit suicide, or the
harassment was to compel her to fulfil illegal dowry demands, it
is not every type of harassment or cruelty related to marriage that
can attract section 498-A, approaching Courts over everyday
domestic misunderstandings and quarrels is not to be encouraged
by the Courts.24

3.2 Sans Mensrea the Conviction U/s. 294 and 500 of the
Hinian Penal Code is invalid

To bring home an offence under Sec 500 and 294 of the HPC, the
prosecution must have proved-
(a) That the accused insulted the victim
(b) That the accused did so intentionally
(c) That the accused by the insult hurled to the victim, provoked her
(d) That the accused intended or knew it to be likely that the
resulting provocation would lead the victim to break the public
peace or to commit any other offence.

This section provides a remedy for using abusive and insulting

language. Abusive language which may lead to breach of the
public peace is not an offence. There must be an intentional
insult, which may be offered by words or conduct. If it is by

22
Bansiya v. State of Rajasthan, 1996 Cr LJ 1393 ( Raj)

23
Shunkara Suri Babu v. State, 1996 CrLJ 1480 (AP)

24
Sarala Prabhakar v. State of Maharashtra, 1990 Cr LJ 407
-Pleadings- -Petitioner-

words, the words must amount to something more than mere

vulgar abuse.25 It is not every insult that can be classified as
intentional insult coming within the purview of Sec 500 and
Sec 294. Mere breach of good manners does not constitute an
offence under these sections.26 If the insult is of such nature that
it may give provocation which might rouse a man to act either to
break or the public peace or to commit any other offence, the
offence is committed.27 The offence contemplated in Section 500
and 294 is a serious one. It is obviously intended to deal with
persons who wantonly defame another person.
The law makes punishable the insulting provocation which, under
ordinary circumstances, would cause a breach of the peace to be
committed, and the offender is not protected from the
consequences of his act because the person insulted does not take
the provocation in the manner intended28, or exercises self-
control, or being terrified by the insult, or overpowered by the
personality of the offender, does not actually break the peace or
commits another offence. In judging whether a particular abusive
language comes within the mischief of section 500, H.P.C., the
Court has to see what would be the effect of the language used in
ordinary course of events and not how the complainant actually
behaved on being abused. Merely because a man of cool
temperament did not react violently, it does not follow that no
offence was committed by the accused.
For an offence under S. 500, what is material is not the reaction
of the complainant which might vary according to the
sensitiveness of the individual insulted but the intention of the
offender to provoke or his knowledge that he is likely to provoke

25
Pukh Raj, (1953) 3 Raj 983

26
Abraham, AIR 1960 Ker 236

27
Mohammed Sabad Ali v. Thuleswar Borah, (1954) 6 Ass 274

28
Jogayya, (1887) 10 Mad 353,354; Vaz v. Dias, (1929) 32 Bom LR 103.
-Pleadings- -Petitioner-

the person insulted to commit an offence.29The offence

punishable under S. 500 and Sec. 294 of the H.P.C. is a distinct
offence which comes under the category of misdemeanors. Using
foul and provocative language against any person which has a
tendency of provoking a person to commit an offence is made
punishable under this section. However if filthy or abusive
language is used during the course of commission of a higher
offence which has the tendency of provoking the victim to
indulge in retaliatory acts, no charge u/s. 500 IPC need be framed
as such conduct of the accused is to be construed as a part of the
higher heinous offence.30
For the offence under S. 500 I.P.C., it is necessary that the insult
should be delivered to the person insulted with the intention that
he may be there and then provoked to commit an offence but
where there is no such publication, no offence under S. 500 is
committed.31 S. 500, I.P.C. contemplates an intentional insult to
any person leading to provocation or at least intending or
knowing to cause such provocation.
Each case of abusive language is not to be judged in the light and
circumstances of that case and there cannot be any general
proposition in this regard.32Mere vulgar abuse thus is no offence.
33
Mere vulgar abuse may be condoned as De minimis non curat
lex34 As held in an M.P Case mere vulgar abuses do not
constitute offence under S. 294, I.P.C., To constitute the offence
under S. 500, there should have been an act or conduct
amounting to intentional insult. In the absence of these words it is

29
Abraham v. State of Kerala, AIR 1960 Ker 236:1960 CrLJ 910 (Kant)
30
Baby Kumar Janardana v. State, 2003 CrLJ 1425 (Kant).
31
Gourishankar v. Bachha Singh, AIR 1939 Pat27: 177 IC 896 (2): 39 CrLJ 980.
32
Karumanchi Veerangiah v. Katta Mark, 1976 CrLJ 1690: 1976 Andh L T 295: (1976) 1 Andhra Pradesh LJ
(HC) 344.
33
Hukumchand v. Chandmal, AIR 1950 MB 25:51 CrLJ 764.
34
Bina v. V. Vanspall, 160 IC 420 (1) : 37 CrLJ 296.
-Pleadings- -Petitioner-

not possible to decide whether the ingredients of intentional

insult are present.35
It is necessary that the actual words used or supposed to have
been used should be must be mentioned in the complaint.
Otherwise the Court would not be in the position to decide
whether the words used amounted to intentional insult.
In the instant case, the Petitioner had no intentions of insulting or
abusing the Respondent. Whatever scuffle took place was the result of
the Respondents conduct and not that of the Petitioners intentions to
insult the Respondent. Also, in the absence of the actual wordings used
by the Petitioner, conviction cannot be based upon the mere consequence
viz. the Respondent losing her job. The cause of such an action was the
Respondents own conduct that provoked the Petitioner to that extent. In
the absence of conclusive evidence the benefit of doubt by all means
must go to the Petitioner.

4. WHETHER THE CHARGES LEVELLED AGAINST THE ACCUSED

U/S. 406 AND SEC. 3 OF THE HINIAN PENAL CODE AND DOWRY

PROHIBITION ACT ARE BACKED BY PROPER EVIDENCE TO BASE

CONVICTION UPON?

It is humbly submitted before this Honble Apex Court of Hinia that the
Honble Magistrate Court has not properly weighed the factual and
circumstantial evidence at hand in the case at hand and convicted the
Petitioner arbitrarily. It is worthy to note that according to the Dowry
prohibition act itself there is a clear distinction drawn upon the term
Dowry and Gift. Both are distinct terms. It is an admitted fact that
the Petitioner sought dowry from the Respondent. However after being
denied the same, the Respondent did not do any further act regarding the
same. It was the Respondents parents who gave money to the
Respondent which essentially comes under the definition stridhana. It
is brought to the knowledge of the Court at this juncture that the

35
Venkataranam, AIR 1948 Mad 9: 48 CrLJ 970:60 Mad LW 271: (1947) 1 Mad LJ 359.
-Pleadings- -Petitioner-

Petitioner also has a right in the Stridhana. Thus using that money which
technically belongs even to him is not an offence under law.

4.1 Criminal breach of trust is not committed

Section 406 Whoever commits criminal breach of trust shall be
punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
To constitute this offence, there must be dishonest
misappropriation by a person in whom confidence is placed as to
the custody or management of the property in respect of which
the criminal breach of trust is charged. The ownership or
beneficial interest in the property in respect of which the criminal
breach of trust is alleged to have been committed must be in
some person other than the accused and the latter must hold it on
account of some person or in some way for his benefit.36
The offence consists of any of the four positive acts- 1)
Misappropriation, 2) Conversion, 3) User,4) Disposal of property.
Neither failure to account nor breach of contract, however
dishonest, is actually and by itself the offence of criminal breach
of trust.37
The ingredients of the offence of criminal breach of trust are-
1- The accused must have been entrusted with the property or
dominion over it
2- The accused must have misappropriated the property or disposed
of the property in violation of such trust.

Offence under sec 405 of IPC can be said to have been

committed only when all the ingredients of that offence as
defined in the statute are found to have been satisfied. An offence
of criminal breach of trust necessarily involves the facts of 1.
Entrustment of property, 2. a dishonest misappropriation or

36
C.N. Narayan AIR 1953 SC 478

37
Daityari, Tripatti v. Subodh Chandra Choudhury, (1942) 2 Cal 507
-Pleadings- -Petitioner-

conversion of property by agent to his own use or 3. dishonest

use or disposal of the property in violation of mandate of the law
prescribing the mode in which the entrustment has to be
discharged or 4. Dishonest use or disposal of the property in
violation of the terms of any legal contracts either expressed or
implied regarding the discharge of the entrustment or wilfully
allowing some other person to do so.

It must however be kept in mind that mere suspicion cant take

the place of proof and as long as the accused has offered a
plausible explanation which in the background of the
circumstances appears to be better probable then he has
discharged the onus upon him, the preponderance of probability
being that his explanation might be true. This right the accused
hereby reserves to elucidate during the course of the arguments
and no prejudice shall as such be caused. Once the explanation of
the accused appears to be so possible, the prosecution cant be
said to have established the case beyond all reasonable doubt
since the accused has succeeded in raising a doubt through his
explanation. When such is the case, there is no offence under
section 409, of the IPC, even if entrustment is proved since in the
absence of intention of conversion by the accused, a mere failure
to account for the property wouldnt be criminal breach of trust
even though it might be otherwise a breach of trust. It is
therefore, for the prosecution to prove the explanation as false, if
at all.38
Being in any manner entrusted with property One of the
essential conditions of the offence of criminal breach of trust is
that the property which is the subject matter must have been

38
Iswar Prosad v. State of Orissa, 1988 3 Crimes 516 (Ori) The basis of complaint is devoid of essential
ingredients of offences alleged against the accused person, no case is made out and cognizance for the same
taken by the magistrate can be quashed, Manoranjan Tripathy v. Ganesh Prasad Singh, 1994 Cr LJ 204 (Ori).
Where prima facie case of offence relating to misappropriation and breach of trust is made out, the FIR lodged
against the accused cant be quashed, Jahangir Joiya v. State, 1999 CrLJ 154 (Raj).
-Pleadings- -Petitioner-

entrusted to a person; a trust of some kind is necessary, and the

property in respect of which criminal breach of trust can be
committed must be either the property of some person other than
the person accused, or the beneficial interest in or ownership of it
must be in some other person and offender must hold such
property on trust for such other person or in some way for his
benefit.39 In every case when offence of criminal breach of trust
is alleged, what must be established initially is the fact of
entrustment of money or property. The word entrusted in
section 405 is not necessarily a term of law and may have
different implications in different context.40 The words in any
manner dont enlarge the term entrustment itself and, unless
there is entrustment, the transaction in question cannot be
affected by the terms of that section. 41 The word entrustment is
not a term of law. In its most general significance, all it imports is
a handing over of the possessions for some purpose which may
not imply the conferring of any property right at all. 42 The natural
meaning of entrusted involves that the assured should by some
real and conscious volition have imposed on the person, to whom
he delivers the goods, some species of fiduciary duty.43 The
expression entrustment carries with it, the implication that the
person handing over any property or on whose behalf the
property is handed over to another, continues to be its owner.
Further, the person handing over property must have confidence
in the person taking the property so as to create a fiduciary
relationship between them.44

39
Sheo Narayayan Jaiswal v. State of Bihar, AIR 1953 PAT 225

40
Thakarsi Damjee v. Crown AIR 1952 NAG 253

41
Satyendra Nath Mukherji (1947) Cal 97. This case was approved by the supreme court in Jaswant Lal, AIR
1968 Sc 700; Dani Singh, AIR 1963 PAT 52; Ramn Niranjan, (1964) 1 Cr LJ 614

42
Per Lord HALDANE in Lake v. Simmons, (1927) 487

43
Per Lord SUMMER in ibid
-Pleadings- -Petitioner-

4.2 Criminal breach of trust alleged against the spouse

Under the old concept a woman had a joint possession of her

husbands property and could not normally allege committing
breach of trust against husband. Possession over the
ornaments and other articles of traditional presents would be
regarded as joint possession and would exclude theory of
entrustment of property, but this presumption can be repelled
by a written agreement to the contrary. If such a presumption
can be excluded by a written agreement, there is no reason
why even oral agreement or evidence, if convincing and
acceptable to court, should not be regarded as a legal
equivalent of the written agreement. The emphasis on the
written agreement perhaps is because of the fact that oral
agreement can be easily set up to show entrustment and
thereby perhaps the process of court can be abused by
instituting false criminal complaints under Section 406 of the
IPC but, apparently, there does not appear to be any reason
why an oral agreement to the contrary, if established by
reliable evidence, should not exclude the presumption of
jointness or establish entrustment within the meaning of
Section 405 and 406 or the IPC.45
As to criminal breach of trust of a spouse, it may, apposite
that mere allegation in a complaint either concerning
entrustment of articles of dowry constituting streedhan to all
the accused, or their refusal to return such articles of dowry to
the complainant (wife) at a later stage, would not per se be
sufficient to make out a prima facie case for commission of
offences punishable under section 406 of IPC against any
particular accused. In the absence of clear, specific and
unambiguous allegations concerning entrustment or specific

44
State of Gujarat v. Jaswant Lal, AIR 1968 SC 700

45
Hazi Badal v. Abid Hussain, 1984 All Cr R 51
-Pleadings- -Petitioner-

articles of dowry to any particular accused and in the absence

of further allegations against him that he had dishonestly or
with any mala fide intentions retain the same and had refused
to return those articles to the wife for whose exclusive use
such articles were allegedly entrusted to him, no prima facie
case for commission of such offence would be made out
against the particular accused. Normally in the cases relating
to the commission of offence of criminal breach of trust
punishable under Sec 406 of the IPC, a particular accused can
be prima facie said to be responsible only for his individual
acts and cannot be fastened with joint or vicarious liabilities.46

Thus in the words of justice Passayat, "Other payments which are

customary payments, for example given at the time of birth of a child or
other ceremonies as are prevalent in different societies, are not covered
by the expression 'dowry'. This makes it clear that the Petitioner cannot
be booked under dowry prohibition act as mere demand not coupled with
any act in furtherance of it does not make him guilty of dowry
47
harassment. The money given to the Petitioner is a gift that has a joint
interest with the Petitioner due to the absence of a contract to the
contrary. Further it is notable that the money entrusted to the Petitioner
involves his interest also and he using it does not amount to criminal
misappropriation. Hence the conviction made under the dowry
prohibition act and Sec. 406 of HPC are fallacious and callous and
deserves to be reversed by this Court in the interest of justice

PRAYER

Wherefore it is prayed, in light of the issues raised, arguments advanced,

and authorities cited, that this Hon'ble Court may be pleased to:

46
Vinod Kumal Goyal v. Union Territory, 1991 CrLJ 2333 (Punj)

47
PG Gupta v. State, (2008) 101 DLT 193.
-Pleadings- -Petitioner-

1. Declare that the Special Leave Petition is maintainable under Article

136 of the constitution of India, 1950.

2. Order the Respondent to undergo a DNA test

3. Declare that the Honble Magistrate Court has erred in convicting

the Petitioner and absolve him of all charges.

And Pass any other Order, Direction, or Relief that it may deem fit
in the Best Interests of Justice, Fairness, Equity and Good
Conscience. For This Act of Kindness, the Appellant Shall Duty
Bound Forever Pray.

Sd/-
(Counsel for the Petitioner)