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Beforedhi

THE COURT OF SESSIONS AT ERNAKULUM, KERALA

___________________________________________________________________________

S.C. NO ___ OF 2017

___________________________________________________________________________

STATE OF KERALA

(PROSECUTION)

v.

JOHN

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 302 OF THE INDIAN PENAL CODE, 1860.

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORIAL ON BEHALF OF THE PROSECUTION

NAME: JUHI SRIVASTAVA

ROLL NO.: 1417


TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS………………………………………………………03
2. INDEX OF AUTHORITIES……………………………………………………..04
3. STATEMENT OF JURISDICTION…………………………………………….06
4. STATEMENT OF FACT…………………………………………………………07
5. ISSUES RAISED…………………………………………………………………08
6. SUMMARY OF ARGUMENTS ADVANCED………………………………..09
7. ARGUMENTS ADVANCED
(1) WHETHER THE ACCUSED IS GUILTY OF MURDER?.........................................10
a. THAT CIRCUMSTANTIAL EVIDENCE POINTS TOWARDS THE MENS REA…..10
b. THAT ACCUSED HAD MOTIVE TO KILL………………………………….13
c. ARGUENDO, ABSENCE OF MOTIVE IS IRRELEVANT……………………..14
8. PRAYER…………………………………………………………………………….16

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LIST OF ABBREVIATIONS

§ Section

¶ Paragraph

AIR All India Reporter

Bom Bombay

Cri LJ Criminal Law Journal

Ed. Edition

Hon’ble Honorable

IPC Indian Penal Code

LR Law Reporter

SC Supreme Court

SCC Supreme Court Cases

v. Versus

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INDEX OF AUTHORITIES

TABLE OF CASES:
1. Amrutlal Someshwar Joshi v. State of Maharashtra, (1994) 6 SCC 186.
2. Bakshish Singh v. State of Punjab, AIR 1971 SC 2016.
3. Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91.
4. Commissioner of Income Tax v. Pataranu Dass Raja Ram Beri, AIR 1982 PH 1, 4.
5. Gangaram v. Emp., 22 Cri LJ 529.
6. Harishchandra Ladaku Thange v. State of Maharashtra, AIR 2007 SC 2957.
7. Hazrat Gul Khan v. E., 29 Cri LJ 546.
8. Laxman v. State of Maharashtra, AIR 1974 SC 1803.
9. Lekhraj v. State of Gujarat, (1998) SCC (Cri.) 704.
10. Mulakh Raj v. Satish Kumar, AIR 1993 SC 1175.
11. Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238.
12. Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322.
13. Ranganayaki v. State, (2004) 12 SCC 521.
14. Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC).
15. Sardul Singh v. State of Haryana, (2002) 8 SCC 372.
16. Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
17. State of Andhra Pradesh v. I.B.S. Prasada Rao, AIR 1970 SC 648.
18. State of Madhya Pradesh v. Digvijay Singh, 1981 Cri LJ 1278 (SC)
19. State of Punjab v. Sucha Singh, AIR 2003 SC 1471.
20. State of U.P. v. Kishanpal & Ors., (2008) 16 SCC 73.
21. State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840.
22. State through C.B.I v. Mahender Singh Dahiya, AIR 2011 SC 1017.
23. State v. Dinakar Bandhu, (1969) 72 Bom LR 905.
24. Ujagar Singh v. State of Punjab, (2007) 13 SCC 90.
25. Vinayak Datta Durbhatkar v. State, AIR 1970 Goa 96 (101).

BOOKS:
1. Gaur, KD, Criminal Law: Cases and Materials, 6th Ed.( 2009)
2. Gupte and Dighe, Criminal Manual, 7th Ed.( 2007)

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3. Harris, Criminal Law, 22nd Ed. (2000)
4. I, III, IV Nelson R. A., Indian Penal Code, 10th Ed. (2008)
5. I, Kathuria, R.P., Supreme Court on Criminal Law, 1950-2002, 6th Ed. (2002)
6. II, Mitra, B.B., Code of Criminal Procedure, 1973, 20th ed. (2006)
7. III, Sarvaria, SK, Indian Penal Code, 10th Ed. (2008)
8. Lal, Batuk, The Law of Evidence, 18th Ed. (2010)
9. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
10. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
11. Monir, Textbook on The Law of Evidence, 10th Ed. (2015)

WEBSITES:
1. http://www.scconline.com
2. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

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)

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STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 188 read with
Section 177 of the Code of Criminal Procedure, 1973.

Section 188:
‘188. Offence committed outside India – When an offence is committed outside India,
(a) By a citizen of India, whether of the high seas or elsewhere; or
(b) By a person, not being a citizen, on any ship or aircraft registered in India,
He may be dealt with in respect of such offence as if it had been committed at any place
within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this
Chapter, no such offence shall be inquired into or tried in India except with the previous
sanction of the Central Government.’

Read with 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.’

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STATEMENT OF FACTS

1. John, an Indian doctor, was living with Bipasha, a United States Citizen of Indian origin,
wherein both of them were residing together in Boston, USA. Due to John’s reluctance to
marry Bipasha, their relationship became strained. In order to revitalize and rejuvenate their
relationship, the duo decided to visit Sydney, Australia for a holiday.

2. 25th January, 2017 at 9.00 PM marked their arrival at the Marriot Hotel in Sydney. The next
day, they went out together for sightseeing at 11.00 AM and came back to the Hotel at 10.00
PM and had dinner together in the room.

3. On the morning of 27th January, 2017 John wakes up at 7.00 AM to find that Bipasha is
neither in the room nor the washroom. For the next three hours, that is, from 7.00 AM to 11.00
AM John makes inquires after Bipasha’s whereabouts with the Hotel staff and locals, but
remains unsuccessful. Subsequently, on the same day at 12.00 Noon, he checks out of the
Hotel and leaves for Boston on the next available flight, only to reach there and inform
Bipasha’s parents about her missing status. Thereafter, he absconds to India five days later,
that is, on 1st February, 2017, without filling any missing persons report either at Sydney or
Boston.

4. In the interim, Bipasha’s parents go to Australia and lodge a report with the Sydney Police on
4th February, 2017. The investigation by the Police along with the help of the Forensic
Experts lead to the following discoveries,

 Blood stains having A positive blood group are recovered from the washroom attached
to the room that was occupied by John and Bipasha at the Marriot Hotel. Bipasha’s
blood group was A positive as well.

5. Consequently, Bipasha’s parents come to India looking for John, who is found hiding at a
farmhouse in Kochi, Kerala three months later on 1st May, 2017.

6. An FIR is filed against him and he is duly charged under § 302 of the IPC.

ISSUES RAISED

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ISSUE – I

WHETHER THE ACCUSED IS GUILTY OF MURDER UNDER § 302?

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SUMMARY OF ARGUMENTS

ISSUE – I

WHETHER THE ACCUSED IS GUILTY OF MURDER UNDER § 302?

It is humbly submitted before this Hon’ble Court that the accused is guilty of the cold
blooded murder of his live in girlfriend, Bipasha, the victim, while the couple were on a
holiday in Australia. The accused had the requisite mens rea to commit said crime, and he
even had a motive to carry out the said act. In the instant case, all the circumstantial evidence
points towards John being the accused, and portraying this to be a case of premeditated
murder, where the accused absconded from the scene of crime and hid in India for four
months before being found. It can further be corroborated with findings that turned up during
the investigation by the Sydney Police, including the finely chopped pieces of victim’s dead
body in a dumpster merely 500 m away from the hotel. Hence, it is proven beyond a
reasonable doubt that the crime of Murder was indeed committed by the accused in the case
at hand.

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ARGUMENTS ADVANCED

ISSUE – I

THAT THE ACCUSED IS GUILTY OF MURDER UNDER § 302.

It is humbly submitted that the John (hereinafter referred to as the ‘accused’) is guilty of
committing murder under § 302 of the Indian Penal Code (hereinafter referred to as the
‘IPC.’) § 302 prescribes the punishment for the crime of murder, however to successfully
convict under this charge, it is significant to refer to § 300 of the IPC, which expounds on the
essentials of a murder.

‘A person is guilty of murder if he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in the ordinary course of nature results into death or commits an act so dangerous that
it must, in all probability cause death of that person.’1 It is respectfully contented that in the
instant case the circumstantial evidence points towards the mens rea [1.1] of the crime and
that the motive [1.2] is well established. Arguendo, absence of motive would not be a
sufficient ground to dismiss the case [1.3].

1.1 CIRCUMSTANTIAL EVIDENCE POINTS TOWARDS MENS REA


Mens rea is considered as guilty intention2, which is proved or inferred from the acts of the
accused.3 It is submitted that the accused had the requisite intention to kill, which was
previously established in light of the motive as dealt with under Issue 1.1. It is further
elucidated by the circumstantial evidence which points towards the guilt of the accused.
Though the case rests on the circumstantial evidence, the quality of the evidence is not
inferior in any manner. It is well settled that if there is clinching and reliable circumstantial
evidence, then that would be the best evidence to be safely relied upon.4 In the case of Sharad
Birdhichand Sarda v. State of Maharashtra,5 the hon’ble Supreme Court laid down the five
golden principles with regard to a case based on circumstantial evidence. These conditions
are,

1
§300, IPC, 1860.
2
Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
3
State of Maharashtra v Meyer Hans George, AIR 1965 SC 722
4
(1994) 6 SCC 186.
5
(1984) 4 SCC 116.

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 The circumstantial evidence from which the conclusion of guilt is to be drawn should
be so fully established.
 The facts so established should be consistent only with the hypotheses of the guilt of
the accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty.
 They should exclude every possible hypothesis except the one proved, and
 There must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in
all probability the act must have been done by the accused.

In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the
court has to consider the total cumulative effect of all the proved facts, each one of which
reinforces the conclusion of guilt and if the combined effect of the facts taken together is
conclusive in establishing the guilt of the accused, the conviction would be justified even
though it may be that one or more of these facts by itself are not decisive.6 Moreover, it has
been emphasized that when a case squarely rests on circumstantial evidence, the inference of
guilt can be justified only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused.7

Furthermore, it is presumed that every sane person intends the result that his action normally
produces and if a person hits another on a vulnerable part of the body, and death occurs as a
result, the intention of the accused can be no other than to take the life of the victim and the
offence committed amounts to murder.8 Moreover, the intention to kill is not required in
every case, mere knowledge that natural and probable consequences of an act would be death
will suffice for a conviction under s. 302 of IPC.9 It can also be inferred from the murder and
the nature of injuries caused to the victim.10

The intention of the accused can be construed on the basis of his detached attitude post the
disappearance of the victim, his girlfriend, and the following parameters are put forth by the
prosecution.

6
State of Andhra Pradesh v. I.B.S. Prasada Rao, AIR 1970 SC 648
7
Harishchandra Ladaku Thange v. State of Maharashtra, AIR 2007 SC 2957.
8
(1951) 3 Pepsu LR 635
9
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
10
Laxman v. State of Maharashtra, AIR 1974 SC 1803

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1. Accused was the last person to see the victim.
As per the facts of the case, after returning from sightseeing at 10.00 PM, the accused
and the victim retire for the night in their hotel room after having dinner together. 11
Since there is no record of an eye witness found during the investigations by the
Sydney Police who claimed to have seen the victim leave the premises of the room or
the hotel, it is a logical conclusion that the accused was the only person who last saw
her prior to her disappearance.

2. Accused’s behavior after victim’s disappearance


Post the disappearance of the victim, the accused’s approach can only be described as
hasty and hurried. After inquiring after the whereabouts of the victim from only 7.00
AM to 11.00 AM, the accused immediately leaves the country on the next available
flight at 12 noon on the same day. Furthermore, it is evident from the accused’s
conduct that he has ruled out the possibility of the victim’s reappearance, since he
directly informs her parents about her missing status, a conclusion that he arrives at
after a mere three hours of inquiry. Moreover, despite such assertions, he fails to
lodge a missing persons report, either at Sydney or in Boston.

3. Abscondence by the accused


According to the facts of the case, the accused not only leaves Australia within hours
of the victim’s disappearance, but also leaves the United States and goes to India, four
days after the victim’s alleged disappearance, on 1st February, 2017.12 It is evident
that the accused was absconding post commission of his crime, and remained in
abscondence until he was found four months later, hiding in a remote farmhouse in
Kochi, Kerala on 1st May, 2017. The flighty behavior of the accused points towards
his obvious guilt.

4. Findings of the investigation by Sydney Police


Investigation conducted by the Sydney Police, on the basis of the missing persons
report filed by the parents of the victim13, with the help of the forensic experts led to
the following conclusions,

11
Factsheet ¶1.
12
Ibid.
13
Factsheet ¶2.

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 Blood stains of A positive blood group are found in the washroom of the hotel
room where the accused and the victim were staying. As per the facts, the
victim also had A positive blood group.
 Finely chopped body parts of the victim are found in a rubbish bin 500m away
from the Hotel on 10th February, 2017. DNA reports further confirm that the
body parts, which are of Indian origin, belong to the victim, Bipasha.
The evidence of the blood stains in the washroom coupled with the fact that the body
was found in such close proximity to the Hotel only substantiate the hypothesis that
the accused killed the victim.

Bearing in mind that it is not for the prosecution to meet any and every hypothesis suggested
by the accused, howsoever extravagant and fanciful it might be,14 it is humbly submitted
before this hon’ble court that the circumstantial evidence in the instant matter shows that
within all human probability, the act must have been done by the accused.15

1.2 ACCUSED HAD MOTIVE TO MURDER

Motive is that which moves or induces a person to act in a certain way.16 It is a fact which is
only within the knowledge of a person doing the act, and which no human being can but the
party himself can divine.17 Motive is the emotion which impels a man to do a particular act.
18
Such impelling cause need not necessarily be proportionally grave to do grave crimes. The
evidence regarding existence of motive which operates in the mind of an assassin is very
often than not within the reach of others. The motive may not even be known to the victim of
the crime. The motive may be known to the assassin and no one else may know what gave
birth to the evil thought in the mind of the assassin.19 The motive may be considered as a
circumstance which is relevant for assessing the evidence but if the evidence is clear and
unambiguous and the circumstances prove the guilt of the accused, the same is not weakened
even if the motive is not a very strong one.20

14
State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840.
15
Bakshish Singh v State of Punjab, AIR 1971 SC 2016.
16
Gangaram v. Emp., 22 Cri LJ 529.
17
Hazrat Gul Khan v. E, 29 Cri LJ 546.
18
Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238.
19
Subedar Tewari Vs. State of U.P., AIR 1989 SC 733.
20
State of U.P. v.. Kishanpal & Ors., (2008) 16 SCC 73.

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The presence of motive is relevant under § 8 of the Indian Evidence Act as it goes on to show
the mens rea of crime.21 This section further stipulates that any fact is relevant which shows
or constitutes motive or preparation for any fact in issue or relevant fact. In the present
matter, the strained relationship between the accused and the victim constitutes as a sufficient
motive for the former to commit the atrocious crime of murder. It is pertinent to note that if
there is motive in doing an act, then the adequacy of that motive is not in all cases necessary.
Heinous offences have been committed for very slight motive.22 Furthermore, relevance of a
motive should be tested in the factual background of the case.23 The mere fact that motive
alleged by the prosecution is not strong enough for others to develop such a degree of grudge
would not mean that the assailants had no serious reasons to do this.24

1.3 ARGUENDO, ABSENCE OF MOTIVE IS IRRELEVANT

Assuming for the sake of argument that the accused had no motive, it is humbly contended
that absence of motive is no ground for dismissing the case. Since motive is primarily known
to the accused and it may not be possible for the prosecution to explain it, 25 motive is
therefore immaterial so far as the offence is concerned, and need not be established26 as the
mere existence of motive is by itself, not an incriminating circumstance and cannot take the
place of a proof.27 Absence of motive may not necessarily be fatal to the prosecution28 and
does not warrant ipso facto acquittal29 of the accused, who can be convicted even in the
absence of motive.30

Therefore, absence of proof of motive, does not break the link in the chain of circumstances
connecting the accused with the crime, nor militates against the prosecution case and is not
fatal as a matter of law.31 In fact, the absence of a motive is also a circumstance which is
relevant for assessing the evidence.32 In a case relating to circumstantial evidence, motive
does assume great importance, but to say that the absence of motive would dislodge the entire
prosecution story is giving this one factor an importance which is not due. Motive is in the

21
Vinayak Datta Durbhatkar v. State, AIR 1970 Goa 96 (101).
22
State v. Dinakar Bandu, (1969) 72 Bom LR 905.
23
Ranganayaki v. State, (2004) 12 SCC 521.
24
Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238.
25
Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91.
26
Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011).
27
State of Punjab v. Sucha Singh, AIR 2003 SC 1471.
28
State through C.B.I v. Mahender Singh Dahiya, AIR 2011 SC 1017.
29
Sardul Singh v. State of Haryana, (2002) 8 SCC 372.
30
Lekhraj v. State of Gujarat, (1998) SCC (Cri) 704.
31
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175.
32
Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322.

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mind of the accused and can seldom be fathomed with any degree of accuracy. 33 Moreover,
when the circumstantial evidence on record is sufficient to prove beyond any doubt to prove
that it was the accused and no one else, who intentionally caused the death of the accused
then, motive of the crime need not be proved,34 as in the current case.

33
Ujagar Singh v. State of Punjab, (2007) 13 SCC 90.
34
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri LJ 1278 (SC).

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PRAYER

Wherefore, in the light the facts of the case, issues raised, arguments advanced and
authorities cited, may this Hon’ble Court be pleased to,

1. Declare and Convict John for committing the offence of murder under § 302 of the
Indian Penal Code, 1860.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Place: Kerala S/d ___________

PUBLIC PROSECUTOR

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