Memorial For The Petitioner Final

3RD UPES NATIONAL TRIAL ADVOCACY MOOT COURTCOMPETITION,2017
TEAM CODE- TA05
3rdUPES
NATIONALTRIALADVOCACYMOOTCOURT COMPETITION, 2017
BEFORE THE COURT OF SESSIONS

AT SEHRADUN
S.C. NO.213 OF 2016
STATE
(PROSECUTION)
v.
RAJESH SINGH & ORS.
(DEFENCE)
FOR OFFENCES CHARGED UNDER:
SECTION 302READ WITH SECTION 120BOF THE INDIAN PENAL CODE, 1860
UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE
MEMORANDUM ON BEHALF OF THE DEFENCE

TABLE OF CONTENTS
Contents
1. TABLE OF CONTENTS ................................................................................................. 2
2. LIST OF ABBREVIATIONS .......................................................................................... 3
3. INDEX OF AUTHORITIES............................................................................................ 4
4. STATEMENT OF JURISDICTION................................................................................ 6
5. STATEMENT OF FACTS .............................................................................................. 8
6. STATEMENT OF CHARGES ........................................................................................ 9
7. SUMMARY OF ARGUMENTS ................................................................................... 10
8. ARGUMENTS ADVANCED ISSUE ........................................................................... 11
9. PRAYER ........................................................................................................................ 24
2
LIST OF ABBREVIATIONS
AIR All India Reporter

All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defense Witness
Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
Mad Madras High Court
n. Foot Note no.
Ori Orissa High Court
p. Page No.
P&H Punjab and Haryana High Court
Pat Patna High Court
PW Prosecution Witness
Raj Rajasthan High Court
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v./ Vs. Versus
3
INDEX OF AUTHORITIES
TABLE OF CASES:
1. Poonam Verma vs. Ashwin Patel and ors.(1996) 4 SCC 322.

.
2. Sharma G, Tandon V, Chandra PS. Legal sanctity of consent for surgical procedures in India. Indian J
Neurosurg. 2012;1:13943.
3. . Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark babu Godbole and Anr. A.I.R. 1989 S.C. 1570.
4. A.S. Mittal vs. State of U.P., 1989 AIR 1570, 1989 SCR (3) 241.
5. Poonam Verma vs. Ashwin Patel and ors.(1996) 4 SCC 322.
6. DEVENDER V. STATE (2002) 5SCC 234 , MOHD. KHALID V. STATE (2002) 7SCC 334
7. LENART SCHUSSLAR V. DIRECTOR OF ENFORCEMENT , NEW DELHI,(1971) 1SCJ 199 ; ;
8. NARAYAN V. S. GOPINATH , (1982) Cr.LJ 1611
9. P.K NARAYAN V. STATE , (1995) 1SCC 142
10. ST (DELHI) V. V.C SHUKLA (1980) SC 1382
11. H.C TANEJA V. STATE (1970) Cr.LJ 945 (RAJASTHAN)
12. OM PRAKASH V. STATE OF HARYANA, 1979) Cr.LJ 857 (SC)
13. JAGAT NARAIN V. STATE OF RAJASTHAN, (1979)Cr.LJ (NOC) 106 (RAJASTHAN)
14. ASHOK V. STATE (1979)Cr.LJ (NOC) 95 (GOA
15. PRABHAKAR M. SHETTY V. STATE OF MAHARASHTRA (1990) (1Bom)
16. SC BAHERI V. STATE OF BIHAR (1994) Cr.LJ 3271(SC)
17. Kailash Chand V. State of M.P., 1983 Jab LJ 666(MP).
18. STATE(C.B.I./S.I.T) V. NALINI (RAJIV GANDHI MURDER CASE)
19. Shaw v. Director of Public Prosecutiom, (1961) 2 ALL ER 446 (HL)
20. Ram Narain Poply v. C.B.I. , (2003) 3SCC 641
21. Rajwant Singh v. State of Kerela, AIR 1966 SC 1874
22. Sheik Choollye v. R [(1865) 4 WR(Cr) 35]
23. Thangaiya v. State of Tamil Nadu [(2005) 9 SCC 650],
BOOKS :
1. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
2. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
4
3. Sarkar, Law of Evidence, (13th Ed,1990)
4. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
5. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

6. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)
7. I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)
8. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)
9. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
10. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)
11. Harris, Criminal Law, (22nd Ed. 2000)

12.
LEXICONS:
1. Aiyar, P Ramanatha, The Law Lexicon, (2ndEd. 2006)
WEBSITES:
1. http://www.indiankanoon.org
2. http://www.wikipedia.com
3. http://www.webmd.com
4. http://www.drugs.com
5. http://www.rxwiki.com
6. http://www.legalservicesindia.com
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)
5
STATEMENT OF JURISDICTION
The Honble Session Court has jurisdiction to try the instant matter under Section 177 read
with Section 209 of the Code of Criminal Procedure, 1973.
Section 177:
177. Ordinary place of inquiry and trial-
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.
Read with Section 209:
209. Commitment of case to Court of Session when offence is triable exclusively by it-
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall-
(a) commit the case to the Court ofSession;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, thetrial;
(c) send to that Court the record of the case and the documents and articles, if any, which
are to be produced inevidence;
6
(d) notifythePublicProsecutorofthecommitmentofthecasetotheCourtofSession.
7
STATEMENT OF FACTS
1. Rani aged 26 yrs is the only child of richest businessman Mr. Hari Mehta. She is married
to Mr. Rajesh Singh , aged 27 yrs., who is a newly startup businessman
.
2. Rani is not able to conceive child whom Rajesh presupposes is because of her weight.
During this Rajesh suffered heavy loss & was in urgent need of money.
3. On 15th November, Rajesh went to the Blue-Ocean Restro Bar with his dear friend Dr.
Tapan, aged 29 yrs, who is a medical professor and research associate in Research &
Development Department in Alpine Hospital & Institute Of Medical Sciences. They
discussed about the wealth of Ranis father. Also they discussed about their problem like
Dr. Tapan was willing to pay good sum of money for an experiment of Sexually
Arousing Drug. Rajesh replied she is useless to me now, may be she could be of some
use to you .
4. On 16th November, Rani met Dr. Tapan& he did not refer her to any medical practioner.
5. On 17thNovember , she visited again &Rani signed the consent agreement for treatment.
she visit thrice a week for a 3hr. sitting. She was given anesthesia so that she does not
feel pain in uterus and abdominal region.
6. Under the cover Dr. Tapan has started the experiment. After few days drugs started
causing negative impacts on Ranis body like headache, body ache, depression etc.
7. On 28th November, Dr. Tapan discussed entire situation with Rajesh. Rajesh told him to
continue the experiment as he has full faith in him. Dr. Tapan continued the treatment for
next two weeks despite the occurrence of major side effect.
8. On 12th December, Rani called her friend Deepali to pick her from lab. In lab she found
Rani and Dr. Tapan in compromising position. She took home & told everything what
she saw. Rani assured her that she will handle it with her husband after 3 days when hell
be back from business trip. Later, Rani messaged Dr. Tapan that I will see you.
9. On 16thDecember, Rajesh returned from profitable business trip. Rani discussed

everything with Rajesh & Rajesh reacted very calmly &assured her that he will talk to
Dr. Tapan about this. Later , in evening Ranis father died due to heart failure.
10. On 17thDecember, Rajesh& Dr. Tapan meet at Blue-Ocean. They discussed about Ranis
Father death& the entire incident that occurred in front of Deepali.Dr. Tapan told Rajesh
we have to pave the right way in which Rajesh replied assuring to manage all the
financial accounts . Later on, Rajesh assured her wife there were some misunderstandings
only &Deepali is unnecessarily trying to befool you.
11. On 18thDecember,Rani was unconscious and fell down .Rajesh called Dr. Tapan. Dr.
Tapan& his nurse reached immediately. Dr. Tapan injected an insulin of 0.25 mg. After
few minutes, she gained consciousness while Dr. Tapan and Rajesh discussed something.
Subsequently ,Rajesh left for his business trip.
12. On 19thDecember,Deepali came to Ranis house to wish her birthday but she found her
dead body on the floor. She immediately called police and lodged F.I.R.
8
STATEMENT OF CHARGES
Rajesh Singh & Dr. Tapan Das has been charged under Section 302 read with Section 120B
the Vindian Penal Code, 1860 for the crime of Murder & Criminal Conspiracy as
Rajesh gave Rani to Dr. Tapan for the experiment because he was in urgent need of
money.
After hearing news of Ranis father death& knowing that if Rani also die then Rajesh
will be the sole owner of the property ,they planned the murder of Rani.
9
SUMMARY OF ARGUMENTS
ISSUE
WHETHER THE ACCUSED WILLBE GUILTY U/S 302/120B?
Yes, Rajesh Singh & Dr. Tapan Das will be liable U/S 302/120B as
both were the party to the said offence.
Facts and statements of accused clearly indicate that they have committed the crime.
10
ARGUMENTS ADVANCED
ISSUE
WHETHER RAJESH SINGH &DR. TAPANDASWILL BEGUILTY OF MURDER

&CRIMINAL CONSPIRACY?
It is humbly contended before this Honble Court that Rajesh Singh & Dr. Tapan Das
(hereinafter to be referred to as the accused 1 &2 is guilty of the offences under Sec. 302/120B
of the Vindian Penal Code, 1860 (hereinafter referred to as the IPC). In the matter at hand, it
has been rightfully alleged that the accused has committed murder in course of criminal
conspiracy. The matter of a murder will be dealt with in the present issue ,while the charge of
criminal conspiracy will be proved simultaneously.
Section 300 In The Indian Penal Code

Murder 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 in-flicted 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.
11
Exceptions of Murder-
Exception-1- When culpable homicide is not a murder-
Culpable homicide is not a murder when the offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos-
First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for
killing. or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a
public servant in the lawful exercise of the powers of such public servant.
Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of
private defense.
Exception 2-
Culpable homicide is not murder if the offender, in the exercise of good faith of the right of
private defense of a person or property, exceeds the power given to him by law and causes the
death of that person against whom he is exercising such right of defense without premeditation,
and without any intention of doing more harm than is necessary for the purpose of such defense.
Exception 3-
12
Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant
acting for the advancement of public justice, exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes to be lawful and necessary
for the due discharge of his duty as such public servant and without ill-will towards the person
whose death is caused.
Exception 4.-
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the offender having taken undue advantage or
acted in a cruel or unusual manner.
Explanation- It is immaterial in such cases which party offers the provocation or commits the
first assault.
Exception 5-
Culpable homicide is not murder when the person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death with his own consent.
Similarly,in our case , all the ingredients of sec. 300 is fulfilled in our case
Clause 1( intention and motive) -
MurderExcept 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 .Talking about
motive, initial motive of both accused was different as Dr. Tappans motive was to have
sexual intercourse with Rani because he was having infatuation from the college days and
13
this was the right moment to do it . and Rajeshs motive was money because he suffered
loss in his startup business. He was in urgent need of money. Dr. Tapan was offering
money to the person who will let him perform experiment with sexually arousing drug.
There was a direct consent from the Rajesh when Rajesh told him that she is useless to
me now , maybe she could be of some use to you. Consent is said to be
free when it is not caused by coercion, undue influence, fraud, misrepresentation, or mistake 1.
Consent is a legal requirement of medical practice and not a procedural formality. Getting a mere
signature on a form is no consent. If a patient is rushed into signing consent, without giving
sufficient information, the consent may be invalid, despite the signature. As in the given facts Dr.
Tapan didnt disclose anything about his experiment to the Rani and takes the signature of
Rani on his agreement by fraud, misrepresentation and by undue influence, thus the consent given
by Rani is invalid from starting and later ,when Ranis father died and knowing that after
Ranis death Rajesh will be the sole owner of the her wealth, motive of both accused
money and for that they intended murder of Rani.
Intention of both accused was to murder which can be clearly seen in our case. Dr. tapan
has started the experiments under the cover of treatment. Knowing that Ranis body was
showing negative impacts like body ache, headache, fatigue etc, besides that Dr. Tapan
continued the experiment for 11 days .
There are some Rules and Regulation for doing clinical experiments. These are-
1
The Indian Contract Act, Sec 14,15,16,17 and 18. 1872
14
1. Like any research or commercial activity in India, clinical trials are also supposed to go through
a very lengthy procedure before they can be conducted. The clinical trials are put under
Schedule Y to the Drug and Cosmetics Rules of 1945, which were amended keeping in
mind the increasing number of foreign pharmaceutical companies who are using India as their
research base. Earlier Phase 2 trials were allowed to be conducted in India only if a Phase 3
study was going on somewhere else. Phase Apart from this, various professional guidelines has
been released. The Indian Council of Medical Research (ICMR) issued the Ethical Guidelines
for Biomedical Research on Human Subjects in 2000 and CDSCO released Indian Good
Clinical Practice (GCP) guidelines in 2001.
2. A Clinical Trials can only be initiated after obtaining written permission from institutional
ethics committee (IEC) and Drugs Controller General (I). The application utilizes form 44
accompanied by the requirement as per schedule Y, such as documents pertaining chemical,
pharmaceutical information, animal pharmacology, toxicology and clinical pharmacology data.
3. Some other documents are also required to be submitted with the application such as trial
protocol, case report form, informed consent sample form and investigators undertaking as to
the liability. There are additional requirements for conducting trials on vulnerable and special
groups such as pregnant women and elderly patients. The protocol must be reviewed and
approved by an institutional ethics committee, at a minimum, seven members, including a
medical scientist, a clinician, a statistician, a legal expert, a social scientist and a common
person from the community.
4. In the applicant wishes to import the biological samples that have been developed as a result
of these trial, he needs a separate license called T-License. This license is valid for multiple
shipments for one year and issued simultaneously with that of the clinical trial approval. A
15
separate No Objection Certificate (NOC) through separate application is required for shipping
biological samples collected from the trial subjects out of India.
But Dr.Tapan didnt considered them and start doing his experiment by hiding the main facts
from Rani. In a case2, S.C. held that a person who does not have knowledge of a particular
system of medicine but practices in that system is a Quack. Where a person is guilty per se, no
further proof is needed. So as in our given facts Dr. Tapan by profession is a medical professor
and a research associate so without the full knowledge he started his experiment on Rani. After
11th day when Dr. Tapan met Rajesh & Rajesh told him to continue the experiment, he continued
for next 2 weeks, knowing that one day or another Rani will die in the course of experiment.
Also , when Deepali saw Dr. Tapan& Rani in compromising position, , in a case3, the court said
that A patient who comes to a doctor for treatment implies that he/she is agreeable to general physical
(not intimate) examination. Dr.Tapan had a little talk about this with his friend Rajesh .
Meanwhile Ranis father died. On 17th December, they both met in Blue-Ocean restro bar. Dr.
Tapan told Rajesh , we will have to have pave the right way. i.e Dr. Tapan was indulged in
sexual activities with Rani of which she was unaware because she was given anesthesia in every
meeting and when Deepali saw everything ,so to save the reputation of his profession, he
intended to kill Rani .He took help of Rajesh because Rajesh was keeping an eye on Ranis
father wealth & after Ranis death he will be the sole owner of that property. Rajesh assured Dr.
Tapan to manage all the financial account as Rajesh returned from a profitable business trip.
Also from the statement of
PW2 (BARTENDER), he heard them talking that we have to settle her once and for all. So
the above facts clearly indicates the intention of Dr. Tapan Das & Rajesh Singh to kill Rani
and also because
2
Poonam Verma vs. Ashwin Patel and ors.(1996) 4 SCC 322.
3
Sharma G, Tandon V, Chandra PS. Legal sanctity of consent for surgical procedures in India. Indian J
Neurosurg. 2012;1:13943.
16
Clause 2(Likely to cause death)
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. If there is knowledge of
likelihood of causing death accused will be guilty of murder4. Similarly in our case, after
few days of experiment Ranis body was showing some negative impacts such as headache,
body ache, fatigue and depression. Dr Tapan knowing everything still continue the
experiment for next 11 days. After 11th day Dr.Tapan met Rajesh in Blue Ocean restro bar
and he told about the negative impacts showing on Ranis body. Rajesh told him to continue
the process saying that I have full faith on you .So Dr.Tapan continued the experiment for
next two weeks .Since Ranis body was showing negative impacts the experiment was likely
to cause death later or soon. In a case of Dr. Laxman balkrishna Joshi and in another case
A.S. Mittal vs. State of U.P.5, It was laid down that when a doctor is consulted by a patient,
the doctor owes to his patient certain duties, which are:
a) Duty to care in deciding whether to undertake the case,
b) Duty to care in deciding what treatment to give
c) Duty to care in the administration of that treatment.
A breach of any above the duties may give a cause of action and the patient may on that basis
recover the damages from his doctor. As from the given facts Dr. Tapan didnt even
considered his duty towards her patient and used Rani for his experiment because there exist
4
Sheik Choollye v. R [(1865) 4 WR(Cr) 35]
5
A.S. Mittal vs. State of U.P., 1989 AIR 1570, 1989 SCR (3) 241
17
a duty of a doctor to obtain prior consent (with respect to living person) for the purpose of
diagnosis, treatment, organ transplantation, research purposes, it is important that informed
consent of the patient is required6 but nothing was done by Dr. Tapan even he take the consent
from Rani by fraud and misrepresentation.
Clause 3 (Ordinary course of nature)
If an acts is done with the intention of causing bodily injury to any person and the bodily
injury intended to be in-flicted is sufficient in the ordinary course of nature to cause death..
The sufficiency of the injury was objectively established by the nature and quality of the acts
taken with the consequence which was intimately related to the acts. Similarly in our case,
Dr.Tapan was giving anaesthesia to Rani on every visit. The. Informed consent for anaesthesia
must be taken by the anaesthesia provider as only he can impart anaesthesia related necessary
information and explain the risks involved. It may be documented by the anesthesiologist on
the surgical consent form by a handwritten note, or on a separate anaesthesia consent form7.
Dr.Tapan was neither doing any surgery nor treatment even he didnt discuss about the
impacts of using anesthesia and also he use to give Methylphenidate and Pramipexoleto.
Consumption of these drugs can lead to various side effects and death. All the acts were
deliberate acts which were pre-planned and they thus satisfied the subjective test involved in
the clause. Also the act considered objectively were sufficient to cause death in ordinary
course of nature. The ordinary course of nature was not interrupted with any intervening act
of another and whatever happened was the result of the acts of assailants and nothing else. It
was hardly necessary to prove more than the acts themselves and the causal connection
between the acts and the end result.8
6
. Poonam Verma vs. Ashwin Patel and ors.(1996) 4 SCC 322.
7
. Waisel DB. Legal aspects of anesthesia care. In: Miller RD, Eriksson LI, Fleisher LA, Wiener-Kronish JP,
Young WL, editors. Miller's Anesthesia. 7th ed. Philadelphia USA: Churchill Livingstone Elsevier; 2010. pp. 221
33.
8
Rajwant Singh v. State of Kerela, AIR 1966 SC 1874
18
Clause 4 (Probability)
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. The
Supreme Court categorically ruled that clause (4) of Section 300 would be applicable where
the knowledge of the offender as to the probability of death of a person approximates to a
practical certainty. Such knowledge on the part of the offender must be of the highest degree
of probability9. Similarly in our case according to the Post Mortem Report Rani died because
of heavy uses of Methylphenidate and Pramipexolei. sleeping pill and pain killer which
Dr.Tapan used to give Rani frequently to reduce her pain in uterus and abdominal region.
Dr.Tapan being a doctor clearly knows that how much quantity of drug is enough to cause
death so he injected the injection of sleeping pill and pain killer more than prescribed limit
which leads to the death of Rani.
# CRIMINAL CONSPIARCY
120A. Definition of criminal conspiracy.When two or more persons agree to do, or cause
to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy: Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof. Explanation.It is immaterial whether
the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
9
Thangaiya v. State of Tamil Nadu [(2005) 9 SCC 650]
19
There are 3 main ingredients10-
1. An Object To Be Accomplished
In the initial stage objective of both Dr. Tapan and Rajesh was different as per
there personal benefit as main objective of Dr. Tapan was to have sexual
intercourse with Rani whereas Rajeshs main objective was money.But on later
stage when Ranis father died and knowing that if Rani also die then Rajesh will
be the sole owner of Ranis property, So, Rajesh and Dr. Tapan main object was
money which can only be acquire by killing Rani.
2. Plan and Scheme-
Both Rajesh and Dr. Tapan made a plan to kill Rani . They made a proper scheme
to execute it in such a way that there will be no doubt they are behind this. Rajesh
began to make plan from 15th November when he first mentioned about Ranis
fathers enormous property and wealth out of no course to Dr. Tapan. On 17th
December when they got the news of Ranis father death. On 18th December, Rani
became unconscious and fell down.This was due to one of the side effect of
experiment . Rajesh called Dr. Tapan to come immediately. Dr. Tapan reached
their society with his nurse by 10:02 a.m. Dr. Tapan asked his nurse to make the
entry in guard register while he hurried upstairs. He injected 0.25 mg of insulin in
Ranis body and she gained consciousness immediately. As per the plan ,Rajesh
left for business trip and Dr. Tapan directed his nurse to stay
10
DEVENDER V. STATE (2002) 5SCC 234 , MOHD. KHALID V. STATE (2002) 7SCC 334
20
with Rani till evening & Dr. Tapan also left by 10:30 a.m . Dr. Tapan had
knowledge of the fact that the duty of the guard is from 7 a.m to 5 p.m and in
order to prevent any doubt, he decided to come again at 11 p.m .
Dr. Tapan asked his nurse to go back as it was late night. Rani was still not well
and in the name of treatment that he used to give her during 3 hour sitting, he gave
her anesthesia(Methylphenidate) and also some pain killer(Pramipexole) . After
observing that ,she is unconscious he committed sexual intercourse with her, and
prior to this he drank wine, whose glass was kept on the table . After completing
sexual act , he left Ranis house believing that ,as a result of overdose of that
Methylphenidate and Pramipexole, she will die within next few hour.
The fact that body was lying on the floor relates to the presumption that she must
have become conscious for a while and tried to go to the washroom but she fell
on the floor and died.
3. Agreement-
An agreement to do an illegal act between two or more person amounts to
criminal conspiracy. The illegal act may or may not be done in pursuance of
agreement but the very agreement is an offence and is punishable. Everyone of the
conspirator need not have taken active part in the commission of each and
everyone of the conspiratorial acts for the offence of conspiracy.11Agreement was
made between Dr. Tapan and Rajesh by implied consent on 15th November. Dr.
Tapan was providing good money to the person who will let him perform
biological experiment with his sexually arousing drug. Rajesh told Dr. Tapan
that he can try his experiment Rani as she is of no use to him. Rajesh is no one to
11
STATE(C.B.I./S.I.T) V. NALINI (RAJIV GANDHI MURDER CASE)
21
make agreement with Dr. Tapan on the behalf of Rani. This agreement is itself an
illegal agreement. An agreement to do an illegal act which amounts to a
conspiracy will continue as long as a members of the conspiracy remain in an
agreement and as long as they are acting in accord and in furtherance of the object
for which they enter into the agreement.12
AN ILLEGAL ACT
The mere agreement between two or more persons to do or causing any illegal act to be done, or
engaging in such an agreement constitutes an overt act (actus reus)13. The word Illegal acc. To
sec. 43 of I.P.C., is applicable to everything which is an offence prohibited by law or which
furnishes ground for an action. The word act includes an illegal omission. The overt acts (actus
reus) necessary to be proved to establish conspiracy include acts
i. Signifying agreement14 ,
ii. Acts preparatory to the offence , and
iii. Acts constituting the offence itself.
The gist of the offence of conspiracy therefore lies in forming the scheme or agreement
between the parties, the external or overt act of the crime is concert by which mutual
consent to a common purpose is exchanged. It, therefore, suffices if the combination exists
12
LENART SCHUSSLAR V. DIRECTOR OF ENFORCEMENT , NEW DELHI,(1971) 1SCJ 199 ; NARAYAN
V. S. GOPINATH , (1982) Cr.LJ 1611; P.K NARAYAN V. STATE , (1995) 1SCC 142
13
Shaw v. Director of Public Prosecutiom, (1961) 2 ALL ER 446 (HL)
14
Ram Narain Poply v. C.B.I. , (2003) 3SCC 641
22
and is unlawful15.
#CRIMINAL CONSPIRACY IN REFERENCE TO COMMON DESIGN (WITH

RESPECT TO SEC. 10 OF INDIAN EVIDENCE ACT).
Section 10 in The Indian Evidence Act, 1872
Things said or done by conspirator in reference to common design.Where there is
reasonable ground to believe that two or more persons have conspired together to commit
an offence or an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as against each of the persons
believed to so conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it.
In order to prove a criminal conspiracy which is punishable u/s120B, there must be direct
or circumstantial evidence to show that there was an agreement between 2 or more person
to commit an offence. It is true that there must be a meeting of minds resulting in an
ultimate decision taken by the conspirators regarding the commission of an offence. In
most cases,It will be difficult to get direct evidence of an agreement to conspire but a
conspiracy can be inferred even from circumstances giving rise to a conclusive or
irresistiable inference of an agreement between 2 or more person to commit an offence .

16
15
Kailash Chand V. State of M.P., 1983 Jab LJ 666(MP).
16
ST (DELHI) V. V.C SHUKLA (1980) SC 1382 ; H.C TANEJA V. STATE (1970)Cr.LJ 945 (RAJASTHAN) ;
OM PRAKASH V. STATE OF HARYANA (1979) Cr.LJ 857 (SC) ; JAGAT NARAIN V. STATE OF
RAJASTHAN (1979)Cr.LJ (NOC) 106 (RAJASTHAN) ; ASHOK V. STATE (1979)Cr.LJ (NOC) 95 (GOA) ;
PRABHAKAR M. SHETTY V. STATE OF MAHARASHTRA (1990) (1Bom) ; SC BAHERI V. STATE OF
BIHAR (1994) Cr.LJ 3271(SC)
23
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Honble Court be pleased to:
1. Convict Rajesh Singh & Dr. Tapan Das of the offence of committing murder with
criminal conspiracy under Sections 302/120B of the Vindian Penal Code, 1860.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted
Place: Sehradun S/d
Date: May 29,2017 COUNSEL FOR THEPROSECUTION
24
25

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3RD UPES NATIONAL TRIAL ADVOCACY MOOT COURTCOMPETITION,2017

TEAM CODE- TA05

BEFORE THE COURT OF SESSIONS

S.C. NO.213 OF 2016

RAJESH SINGH & ORS.

FOR OFFENCES CHARGED UNDER:

UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

1. TABLE OF CONTENTS ................................................................................................. 2

2. LIST OF ABBREVIATIONS .......................................................................................... 3

5. STATEMENT OF FACTS .............................................................................................. 8

6. STATEMENT OF CHARGES ........................................................................................ 9

7. SUMMARY OF ARGUMENTS ................................................................................... 10

8. ARGUMENTS ADVANCED ISSUE ........................................................................... 11

AIR All India Reporter

1. Poonam Verma vs. Ashwin Patel and ors.(1996) 4 SCC 322.

5. Poonam Verma vs. Ashwin Patel and ors.(1996) 4 SCC 322.

7. LENART SCHUSSLAR V. DIRECTOR OF ENFORCEMENT , NEW DELHI,(1971) 1SCJ 199 ; ;

8. NARAYAN V. S. GOPINATH , (1982) Cr.LJ 1611

9. P.K NARAYAN V. STATE , (1995) 1SCC 142

10. ST (DELHI) V. V.C SHUKLA (1980) SC 1382

11. H.C TANEJA V. STATE (1970) Cr.LJ 945 (RAJASTHAN)

12. OM PRAKASH V. STATE OF HARYANA, 1979) Cr.LJ 857 (SC)

13. JAGAT NARAIN V. STATE OF RAJASTHAN, (1979)Cr.LJ (NOC) 106 (RAJASTHAN)

14. ASHOK V. STATE (1979)Cr.LJ (NOC) 95 (GOA

15. PRABHAKAR M. SHETTY V. STATE OF MAHARASHTRA (1990) (1Bom)

16. SC BAHERI V. STATE OF BIHAR (1994) Cr.LJ 3271(SC)

17. Kailash Chand V. State of M.P., 1983 Jab LJ 666(MP).

18. STATE(C.B.I./S.I.T) V. NALINI (RAJIV GANDHI MURDER CASE)

19. Shaw v. Director of Public Prosecutiom, (1961) 2 ALL ER 446 (HL)

20. Ram Narain Poply v. C.B.I. , (2003) 3SCC 641

21. Rajwant Singh v. State of Kerela, AIR 1966 SC 1874

22. Sheik Choollye v. R [(1865) 4 WR(Cr) 35]

23. Thangaiya v. State of Tamil Nadu [(2005) 9 SCC 650],

2. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)

3. Sarkar, Law of Evidence, (13th Ed,1990)

4. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

5. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

10. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

11. Harris, Criminal Law, (22nd Ed. 2000)

1. Aiyar, P Ramanatha, The Law Lexicon, (2ndEd. 2006)

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)

3. The Indian Penal Code, 1860 (Act 45 of 1860)

with Section 209 of the Code of Criminal Procedure, 1973.

177. Ordinary place of inquiry and trial-

jurisdiction it was committed.

Read with Section 209:

by the Court of Session, he shall-

(a) commit the case to the Court ofSession;

during, and until the conclusion of, thetrial;

are to be produced inevidence;

9. On 16thDecember, Rajesh returned from profitable business trip. Rani discussed

WHETHER THE ACCUSED WILLBE GUILTY U/S 302/120B?

both were the party to the said offence.

WHETHER RAJESH SINGH &DR. TAPANDASWILL BEGUILTY OF MURDER

criminal conspiracy will be proved simultaneously.

Section 300 In The Indian Penal Code

Exception-1- When culpable homicide is not a murder-

causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos-

killing. or doing harm to any person.