I

TEAM CODE:

6TH FYLC -RANKA NATIONAL MOOT COURT COMPETITION, 2016

IN THE HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE APPEAL NO. ****/2016,

CASE CONCERNING OFFENCES UNDER SECTION 498A, 304B, 302 READ WITH SECTION 34 OF
IPC

SPECIAL LEAVE APPEAL FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

IN THE MATTERS OF

STATE OF RAJASTHAN & VIKRAM GUPTA...............................................................APPELLANT

v.

DINESH GOYAL, SHARDA GOYAL & SURESH GOYAL..........................................RESPONDENT

UPON SUBMISSION TO THE HONOURABLE CHIEF JUSTICE & HIS COMPANION JUSTICES OF
THE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF APPELLANT

 II

TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………………………………………III

LIST OF AUTHORITIES.............................................................................................................. IIV

CONSTITUTION .................................................................................................................... IIV

ACTS & STATUTES .............................................................................................................. IIV

LIST OF CASES…………..……………………………………..…………..…..……...……IV

BOOKS REFERRED .................................................................................................................VI

DICTIONARIES REFERRED .................................................................................................... VII

REPORTS & ARTICLES REFERRED..........………………………………………………......VII

WEBSITES REFERRED .......................................................................................................... VII

STATEMENT OF JURISDICTION .......................................................................................... VIIVIII

STATEMENT OF FACTS .............................................................................................................. IX

QUESTIONS PRESENTED........................................................................................................... XII

SUMMARY OF ARGUMENTS ....................................................................................................XIII

ARGUMENTS ADVANCED ......................................................................................................... 01

I. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE? ................................ 01

A. APPELLANT HAS LOCUS S TANDI TO APPROACH THE SC.0ERROR! BOOKMARK NOT

DEFINED.

B. THE HC HAS NOT CONSIDERED THE ENTIRE GAMUT OF EVIDENCE PROPERLY. ... ……04

C. THERE HAS BEEN GRAVE INJUSTICE ……….. .. ………………………………………05

II. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED

ON THE BASIS OF ORAL & DOCUMENTARY EVIDENCE ADDUCED BY THE

PROSECUTION?.....................................................................................................................06

A. ACCUSED ARE GUILTY FOR THE OFFENCE OF CRUELTY & DOWRY DEATH READ WITH

SECTION 34 OF IPC....................................................................................................... 06

B. ACCUSED IS GUILTY FOR THE OFFENCE OF MURDER ..................................................... 12

C.CIRCUMSTANCES OF THE CASE ARE OF CONCLUSIVE

NATURE………………………..1ERROR! BOOKMARK NOT DEFINED.

Memorial on Behalf of Appellant

 III

D.THE CASE IS PROVED BEYOND REASONABLE DOUBT.................................................... 20

PRAYER……………………………………………………………………….………………23

LIST OF ABBREVIATIONS

¶ Paragraph
& And
AIR All India Reporter
Anr. Another
AO Assessing Officer
Art. Article
CIT Commissioner of Income Tax
Cr.LJ Criminal Law Journal
Cr.PC Code of Criminal Procedure
FD Fixed Deposit
FIR First Information Report
HC High Court
i.e. That is
IEA Indian Evidence Act
IPC Indian Penal Code
ITR Income Tax Return
Mad Madras
Or Orissa
PMR Post Mortem Report
PS Police Station
SC Supreme Court Cases
SCC Supreme Court Cases
SCR Supreme Court Record
SLP Special Leave Petition
UOI Union of India
UP Uttar Pradesh
v. Versus

Memorial on Behalf of Appellant

 IV

LIST OF AUTHORITIES

CONSTITUTION

THE CONSTITUTION OF INDIA, 1950

ACTS & STATUTES

1. THE CODE OF CRIMINAL PROCEDURE,1973

2. THE DOWRY PROHIBITION ACT, 1961.

3. THE INDIAN EVIDENCE ACT,1872

4. THE INDIAN PENAL CODE, 1860.

5. THE INCOME TAX ACT,1961

6. THE PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE ACT,2005

LIST OF CASES

1. Akula Ravinder v. State of AP, AIR 1991 SC 1142…………………………..……….9

2. Alamgir Sani v. State of Assam, AIR 2003 SC 2108………………………………...11
3. Amar Singh v. State of Rajasthan, AIR 2010 SC 3391……………………...……….11
4. Arbind Kumar Ambasta v. State of Jharkhand, 2002 Cr.LJ 3973( Jhar)……….……..9
5. Arunachalan v. P.S.R. Setharatnam, AIR 1979 SC 1284……………………….…..2,3
6. Arundhati Keutuni And Anr. v. The State 1968 CriLJ 848………………….….…..17
7. Brij Bhushan Sharma v. State Of U.P. 2001 Cr.LJ 1384……………………….…………...22
8. Bhagirathi v. State of Haryana, AIR 1997 SC 234…………………………...……..19
9. Butan Sao v. State of Bihar, 2000 (2) BLJR 1400………………………...……….10
10. Chhotanney & Ors v. State Of Uttar Pradesh & Ors on 18 February, 2009………..22
11. Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd.,AIR 1962 SC 1314
……………………………………………………………………………….…....…2
12. C.C.E v Standard Motor Products, AIR 1989 SC 1298 .………………………...…2
13. Dalbir Kaur v. State of Punjab AIR 1977 SC 472…………………………………..4
14. Darshan Singh v. State of Punjab, 1955 SCC (Cri) 702……………………..…….16
15. Dhakeswari Cotton Mills Ltd. v. CIT, Bengal,1955 SCR (1) 941………………….2
16. Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406…...…………..3
17. Gananth Pattanaik v. State of Orissa, (2002) 2SCC 619…………………….……..7

Memorial on Behalf of Appellant

 V

18. Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211………………..………3

19. Hardeep Singh v. State, 1996 Cr.LJ 2733 (P&H)……………………………….….….8
20. Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai, (2004)3 SCC 214 ….2
21. Inder Raj Malik v. Sunita Malik, (1986) Cr.LJ 1510………………………………..…8
22. Kailash v. State of MP, AIR 2007 SC 107……………………………………………11
23. Kansa Behra v. State of Orissa, AIR 1987 SC 1507………………………………….16
24. Kashmir Kaur & Anr. v. State of Punjab, AIR 2013 SC 1039………………………....9
25. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883………...................13
26. Keshab Chandra Panda v. State of Orissa, 1995 Cr.LJ 174 (Ori)…………………….11
27. Kulwant Singh & Ors. v. State of Punjab, AIR 2013 SC 1567……………………....10
28. Kundala Bala Subranayam v. State of AP, 1993 Cr.LJ 1635…………………………21
29. K. Prema S.Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11……….……….………….11
30. L.K. Nayak v. State, 2013 Cr.LJ 1792 (Chh.)……………………………...…………11
31. Mahender v. State, Delhi HC on 1 November, 2013 ……………………….………………..15
32. Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182 ………………..…………16
33. M/s Variety Emporium v. V. R.M. Mohd. Ibrahim, AIR 1985 SC 207………………..5
34. Nand Kishore v State of Maharashtra, 1995 Cr.LJ 3706….………………………….10
35. Nathu v. State of UP, Criminal Bail Application No. 12466 of 2002…….…………..12
36. Nihal Singh v. State of Punjab, AIR 1965 SC 26………………………………..…...1,4
37. Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC)……………...……………2
38. P.B. Biksdhapath v. State of AP, 1992 Cr.LJ 1186(AP)……………………………….6
39. Pritam Singh v. State, AIR 1950 SC 169………………………………………………3
40. Public Prosecutor v. Somasundaram And Ors AIR 1959 Mad 323……………..……17
41. Rajammal v. State of T.N,1993 Cr.LJ 3029 (Mad.)…………………………………..21
42. Raja Ram v. State Cri. Appeal No. 211 of 2013………………………………….......20
43. Rajbir v. State of Haryana, AIR 2011 SC 568…………………………………….…12
44. Rajesh Bhatnagar v. State of Uttarakhand, AIR 2012 SC 2866……………..….…….10
45. Rajesh Pandey v. State of UP, (2009) 5 SCC 132………………………………….......9
46. Rameshbhai Mohanbhai Koli & Ors. v. State of Gujarat, (2011) 11 SCC 111…...….20
47. Ravindra Shantaram Sawant v. State of Maharashtra, AIR 2000 SC 2461…………..13
48. Sachin Jana And Anr v. State Of West Bengal, SC on 25 January, 2008………..…...17
49. Sadhu Singh v. Pepsu, AIR 1954 SC 271……………………………………………...1
50. Sandeep v. State (Nct Of Delhi) Delhi HC on 5 February, 2015…………………….18

Memorial on Behalf of Appellant

 VI

51. Sarju Modi v. State of Bihar, 2003 Cr LJ631 (Jhar.)…………………………………..1

52. Satbir Singh and Ors. v. State of Haryana SC on 14 Sept.,2005……………….…………..…15
53. Satya Narayan Tiwari v. State of UP, 2011 Cr.LJ 445………………………………...7
54. Shambu Nath Mehra v. State of Ajmer, AIR 1956 SC 404………………………..…20
55. Shanti Behal v. State (Delhi Admin.), 1994 Cr.LJ 2043……………………………….7
56. Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622…...……….21
57. Soni Devrabhai Babubhai v. State of Gujarat and Others, (1991) 4 SCC 298….…….11
58. State of HP v. Rajiv Jassi, MANU/SC/0531/2016 (on 6th May,2016)..........................20
59. State of Maharashtra v. MH George, AIR 1965 SC 722..………………………..……5
60. State of Maharashtra v. Shivaji Anandrao, 2002 Cr.LJ 4198 (Bom)…...…………….21
61. State of Madras v. Vaidyanatha Iyer, 1958 Cr.LJ 232…………………………………4
62. State of Punjab v. Amarjit Singh, 1989 Cr.LJ (NOC) 13 (P&H)………...……...……21
63. State of UP v. Ashok Kumar Shrivastva, AIR 1992 SC 840…………...……….5,17,18
64. State of UP v. Randhir, AIR 1959 All 727……………………………………………18
65. State v. Javed Ansari, Delhi HC on 14 February, 2012 …….………………………..19
66. State v. Ramesh, SC on 28 February, 2015…………………………………………………...16
67. Subedar v. State of UP, AIR 1971 SC 125……………………………….…………….5
68. Vidhya devi v State of Haryana, AIR 2004 SC 476……………………………….….10
69. Virendra Singh v. State Of M.P, SC on 9 August, 2010……………………………...18
70. Yashoda v State of MP, AIR 2005 SC 1411……………………………………….…10

BOOKS REFERRED
1. Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016 )
2. Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010).
3. Dr. CK Parikh, Textbook of Medical Jurisprudence, Forensic Medicine &
Toxicology, (6th Ed., CBS Publisher’s,2014)
4. Dr. K.S. Narayana Reddy, The Essentials of Forensic Medicine& Toxicology (33rd
Ed., J.P. Publications, 2010)
5. H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law Publication,2015)
6. J.P. Modi’s , A Textbook of Medical Jurisprudence & Toxicology, (25th Ed., Lexis
Nexis , 2016)
7. Justice UL Bhatt, Lectures on Indian Evidence Act,(Universal LawPublication,2015)
8. KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009)
9. KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd.,2016)

Memorial on Behalf of Appellant

 VII

10. MP Jain, Indian Constitutional Law, ( 7th Ed., Lexis Nexis, 2016)
11. N.K. Acharya, Protection of Woman From Domestic Violence Act,( 6th Ed. Asia Law
House,2013)
12. P.K. Majumdar & R.P. Kataria, Law Relating to Dowry Prohibition Cruelty &
Harassment (3rd Ed. ,Orient Publication,2015)
13. Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II , Thomson Reuters)
14. Ram Shelkar, Law Relating To Dowry Death( 1st Ed., Kamal Publishers, 2010)
15. Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)
16. Ratanlal & Dheerajlal, Law of Evidence (25th Ed., Lexis Nexis, 2013)
17. Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016)
18. R.V. Kelkar, Criminal Procedure, (5th Ed., Eastern Book Company, 2011)
19. SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency 2014 )
20. SC Sarkar, The Code of Criminal Procedure: An Encyclopedic Commentary on the
Code of Criminal Procedure,1973 (11th Ed., Lexis Nexis, 2015)
21. V.N. Shukla's, Constitution of India, (12th Ed., Eastern Book Company, India 2013).

DICTIONARIES REFERRED

1. Garner, Black’s Law Dictionary, (9th Ed. Thomus & West, U.S.A 1990).
2. P Ramanatha Aiyar, The Law Lexicon, (2nd Ed. Lexis Nexis, 2006)

REPORTS & ARTICLES REFERRED

1. 202nd Law Commission Report

WEBSITES REFERRED

1. www.manupatrafast.in ( Last visited on 7th August, 2016)

2. www.scconline.com ( Last visited on 8th August,2016 )
3. www.supremecourtofindia.nic.in ( Last visited on 2nd August,2016)
4. www.westlawindia.com ( Last visited on 5th August,2016)

Memorial on Behalf of Appellant

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STATEMENT OF JURISDICTION

The Appellant has approached the Honourable SC of India through SLP under article 136 of
the Constitution of India. The matter has been listed for hearing. Article 136 of Constitution of
India read here as under:

Special leave to appeal by the SC

(1) Notwithstanding anything in this Chapter, the SC may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, & sentence or
order passed or made by any court or tribunal constituted by or under any law relating
to the Armed Forces.

The memorandum for Appellant in the matters of State of Rajasthan & Vikram Gupta v.
Dinesh Goyal, Sharda Goyal & Suresh Goyal set forth the Facts, Contentions and
Arguments present in the case.

Memorial on Behalf of Appellant

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STATEMENT OF FACTS

1. Shri Dinesh Goyal & Shri Vikram Gupta were acquaintances. Suresh & Sharda, son &
daughter respectively of the above mentioned were pursuing MBA, in the same College. Both
fell in love. Suresh suggested to his father to talk to Vikram Gupta for his daughter. Marriage
was agreed upon. Dinesh Goyal demanded dowry of a substantial value & a sum of ₹ 1 Cr. for
wedding celebrations. Vikram Gupta accepted it. The marriage took place on 17.07.2012. The
said dowry was paid. An extravagant wedding reception was thrown by Dinesh Goyal on 18th
July, 2012 in the presence of approximately 5000 guests.
2. CIT conducted a survey under section 133A (5) & calculated an expenditure of ₹ 5 Cr.
by Gupta & ₹. 7.5 Cr. by Goyal, whereon an assessment of books of account revealed
expenses each of ₹ 1 Cr. only. They stated that expenditure computed by the investigation is
incongruent to the tune of ₹ 2.5 Cr. Both filed their returns & declared their undisclosed
amount as per their statements & paid tax with interest. However, on scrutiny assessment
under section. 143(3) the Assessing Officer made an addition of the differential amount &
levied tax with interest notifying for penalty under section 271(1)(c) of the Act. Both the filed
appeals are pending.
3. Sharda did not receive proper humane treatment from her in-laws. Her mother-in-law
continuously demanded a Mercedes Car & a FD of ₹ 1 Cr. However a FD of ₹ 25 lac was
already presented by the name of Sharda. Her mother-in-law also demanded a baby boy,
within a year. Sharda gave birth to a baby girl; the Goyal family was not happy & Sharda was
sent back. Sharda in the meantime maintained a daily diary minutely. Around 20.05.2015
Suresh apologized for mistreatment & brought Sharda back home. But the relationship
between Sharda & her husband continued to be estranged due to dowry demands & drinking
habits of Suresh. Sharda was abused & beaten even in front of the servants.
4. Goyal family hatched a plan on 24.5.2015 & bought an organic phosphorus poison
(NUVAN) from PW-1. On 25.5.2015, Sharda was forcibly poisoned by her mother in law. &
Suresh helped her to do so. Sharda sustained injuries on her face, lips & neck. PW-2, a servant
heard the commotion & the conversation “Give me salty water. I do not want to die”.
Servants, PW-3 & PW- 4 smelt poisonous odour in the room. PW-4, requested Dinesh to take
Sharda to the hospital but Dinesh refused. In the meantime PW-5 & PW-6 (relatives of
Sharda) arrived & smelt the same odour in the room. On being asked, she raised her hand
towards the accused Dinesh Goyal & Shalini Goyal. PW-4 informed the police at about 4.30
a.m. On that, PW-7 noted the information in the daily diary. He found Sharda lying on the bed

Memorial on Behalf of Appellant

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in an unconscious state. PW-8 examined Sharda at about 6 a.m. & noted the patient semi-
conscious with history of consumption of poison. Reddish contusion over the lateral side of
her right eye brow & swollen lips were observed. He administered the initial treatment.
Thereafter he referred Sharda to S.M.S. Hospital, Jaipur where she expired. Post mortem was
conducted by PW-9 in association with Dr V. K. Mishra. Cause of death was diagnosed to be
a case of Asphyxia due to the organic phosphorus poisoning. Various ante-mortem injuries
were found on the deceased.
5. Vikram Gupta, PW-10 got to know about Sharda condition came to the hospital &
lodged a report at the PS mentioning that three accused have forcibly administered poison
with intention to kill his daughter for non-fulfilment of further demand of dowry. FIR was
registered under section 498A, 304B, 305/34 of the IPC. The diary which was exhibited &
evidence showed that Suresh purchased NUVAN, as a result charges under section 498A &
304B read with section 34 of IPC and under the Dowry Prohibition Act, 1961were framed
against the accused persons. All the three accused adjured the guilt & pleaded innocence.
Accused, Dinesh in his statement under section 313 CrPC did not deny the factum of the
deceased having died due to poison. Three DW were examined, who stated that Sharda Goyal
was happy in Goyal House and their relations were cordial and she was treated as a daughter.

Finding of the trial Court: The trial court acquitted the mother-in-law & Suresh Sh. Suresh
Goyal. However, convicted the father-in-law for commission of offence under section 302
IPC and awarded imprisonment for 7 years with no fine.

Finding of the Rajasthan HC: State as well as Vikram Gupta filed appeal against accused.
Dinesh Goyal also filed an appeal against conviction. The HC acquitted the respondent
Dinesh Goyal on the ground that circumstantial evidence is inadequate.

Appeal before the SC: The State as well as Shri Vikram Gupta filed appeal against all the
three accused setting aside conviction and non-levy of maximum imprisonment with fine as
also awarding exemplary cost all throughout.

Memorial on Behalf of Appellant

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QUESTIONS PRESENTED

-I-

WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?

-II-

WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED ON

THE BASIS OF ORAL & DOCUMENTARY EVIDENCE ADDUCED BY THE PROSECUTION?

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SUMMARY OF ARGUMENTS

I. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted before this Honourable Court that the present appeal is maintainable
under article 136 of the Constitution of India. Article 136 of the Constitution of India is the
residuary power of SC to do justice where the court is satisfied that there is injustice. The chain of
circumstantial evidence is complete as to regarding the point of the guilt of accused and HC
acquitted the accused. Therefore, there has been a grave injustice. The jurisdiction of SC can
always be invoked when a question of law of general public importance arises. In the present case,
the impugned decision was mechanically passed without application of mind by the HC. And
hence, the judgment is incorrect. 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.
Therefore, the present petition is maintainable in the SC.

II. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED

ON THE BASIS OF ORAL & DOCUMENTARY EVIDENCE ADDUCED BY THE PROSECUTION?

It is most humbly submitted before the Honourable SC of India that the accused are guilty
of murder, dowry death and cruelty read with Section 34. In the present case, deceased did not
receive proper treatment from accused for not giving dowry which was demanded. Accused
planned murder of deceased by giving organo phosphorus (poison). And the statements given
by the all witnesses clearly prove that they have murdered the deceased. Even the accused
refused to take the deceased to the hospital & they did not inform the police. The dying
declaration of deceased proves that accused is guilty of alleged offences. Also the chain of
circumstantial evidence is clearly established and burden of proof lies on the accused to show
as to how she died. Therefore accused is guilty for the offence of 498A, 304B, 302 read with
Section 34 of IPC.

Memorial on Behalf of Appellant

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ARGUMENTS ADVANCED

I. WHETHER THE SLP IS MAINTAINABLE OR NOT?

It is humbly submitted before this Honourable court that the present SLP filed by State
& Vikram Gupta is maintainable in the SC [hereinafter as SC] under Article 136 of the
Constitution of India. Article 136 of the Constitution elucidates that Special leave to appeal
by the SC -

(1) Notwithstanding anything in this chapter, the SC may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of
India.

(2) Nothing in clause (1) shall apply to any judgment, determination, & sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed forces.

This SLP is maintainable as, firstly the Appellant has locus standi to approach the
Honourable SC [A], secondly the HC has not considered the entire gamut of evidence
properly [B], thirdly the grave injustice has been done[C].

A. THE PETITIONER HAS LOCUS STANDI TO APPROACH THE HONOURABLE SC

It is humbly submitted before this Honourable SC that the appellant has locus standi
to approach the Honourable SC in the present case. Article 136 of the Constitution is
couched in the widest phraseology.1 This Court's jurisdiction is limited only by its discretion.2
It is pertinent to note that the scope of Article 134 providing appeals to the SC in criminal
matters is limited whereas Article 136 is very broad-based & confers discretion on the court
to hear “in any cause or matter”. Therefore, criminal appeals may be brought to the SC under
article 136 when these are not covered by Article 134.3

In the present case the HC erred in setting aside the order of conviction. The jurisdiction
conferred under article 136 on the SC is corrective one & not a restrictive one. A duty is
enjoined upon the SC to exercise its power by setting right the illegality in the judgments, it is

1
Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26
2
Ibid.
3
Sadhu Singh v. Pepsu, AIR 1954 SC 271
 2

well-settled that illegality must not be allowed to be perpetrated & failure by the SC to
interfere with the same would amount to allowing the illegality to be perpetuated.4

Article 136 is the residuary power of SC to do justice where the court is satisfied that there is
injustice.5 The principle is that this court would never do injustice nor allow injustice being
perpetrated for the sake of upholding technicalities.6

A Constitution Bench of SC7, 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 & substantially affects the rights of the parties & 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 difficulty or calls for discussion of alternative views.”

Again, the SC said in another case8:

“It is not possible to define the limitation on the exercise of the discretionary jurisdiction
vested in the Court by Article 136. The limitation whatever they may be, are implicit in nature
& character of the power itself. It being an exceptional & overriding power, naturally it has
to be exercised sparingly & with caution & only in special & extraordinary situations.
Beyond that, it is not possible to fetter the exercise of this power by any set formula or rule”

In Arunachalam v. P.S.R. Setharatnam9, the SC considered an important question having a

bearing on criminal appeals under article 136. Accused was acquitted of murder charge on
appeal by the HC. The brother of the deceased got leave to appeal to the SC on appraisal of
evidence, the court set aside the order of acquittal & convicted accused. Objection raised on
behalf of accused relating to the maintainability of the SLP under article 136 were rejected.
Also in this case, Chinnappa Reddy J. laid emphasis on the “plenary appellate jurisdiction”
of the SC under article 136 & observed:

4
Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC); see also H.M. Seervai, Constitutional Law of India
(4th Ed. Vol. I 2010)
5
C.C.E v Standard Motor Products, AIR 1989 1298 SC 1298, see also H.M. Seervai, Constitutional Law of
India (4th Ed. Vol.II 2010).
6
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC 214 (SC)
7
Chunilal Mehta & Sons, Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314
8
Dhakeswari Cotton Mills Ltd. v. CIT, Bengal 1955 SCR (1) 941
9
AIR 1979 SC 1284

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“It is now the well-established practice of this court to permit the invocation of the power
under article 136 only in very exceptional circumstances, as & when a question of law of
general importance arises. But, within the restriction imposed by itself, this court has
undoubted power to interfere even with findings of fact, making no distinction between
judgments of acquittal or conviction, if the HC, in arriving at those findings, has acted
“perversely or otherwise improperly”10

In Delhi Judicial Service Assn. v. State of Gujarat,11 the SC has held that under article 136
the SC has wide power to interfere and correct the judgment and order passed by any court or
tribunal in India. In addition to the appellate power, the court has special residuary power to
entertain appeal against any order of any court.

Even if we assume that the case doesn’t 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’.12 This gives widest power to this court to deal with
any cause or matter, even if it involves question of fact.

This case establishes the position that the powers of the SC in appeal under article 136 are not
restricted by the appellate provisions contained in the Cr.PC or any other statute. Hence, in
the present case appellant has locus standi to approach the Honourable SC. The SC under
article 136 of the Constitution following principles emerge13:

i. The powers of this Court under article 136 of the Constitution are very wide but in
criminal appeals this Court does not interfere with the concurrent findings of fact save
in exceptional circumstances.
ii. It is open to this Court to interfere with the findings of fact given by the HC, if the HC
has acted perversely or otherwise improperly.
iii. It is open to this Court to invoke the power under Article 136 only in very exceptional
circumstances as and when a question of law of general public importance arises or a
decision shocks the conscience of the Court.
iv. When the evidence adduced by the prosecution fell short of the test of reliability &
acceptability and as such it is highly unsafe to act upon it.

10
Arunachalam v. P.S.R. Setharatnam AIR 1979 SC 1284
11
(1991) 4 SCC 406
12
Pritam Singh v. State, AIR 1950 SC 169
13
Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211

Memorial on Behalf of Appellant

 4

v. Where the appreciation of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural justice, errors of record &
misreading of the evidence, or where the conclusions of the HC are manifestly
perverse & unsupportable from the evidence on record.

In this very case, the evidence with respect to poison administration cannot be relied upon.
The entire HC judgment did not consider the evidence provided by the diary. Thus, there has
been a gross mistake on the part of the HC with respect to consideration of evidences.

B. THE HC HAS NOT CONSIDERED THE ENTIRE GAMUT OF EVIDENCE PROPERLY

It is most humbly submitted before this Honourable Court that the appreciation of
evidence was not proper. Firstly, the daily diary which formed a substantial part of what the
deceased had to face in her everyday life have not been considered. Secondly, chain of
Circumstantial evidence in the present case erringly point to the guilt of the accused. Thirdly,
Dr. OP Chaudhary did not say that deceased had consumed the poison herself to commit
suicide. Also Dr. Piyush Kapila could not rule out the possibility of the victim committing
suicide by herself. Also the trial court acquitted the mother-in-law and husband of deceased
on unreasonable grounds. And there was direct evidence regarding the cruelty but accused
were not convicted by Trial court & HC.

The judgment of the HC was liable to be set aside when certain salient features of the case
were not properly appreciated or given due weight by the HC.14 In Nihal Singh v. State of
Punjab15, it was held that if there is no evidence to support the finding of a fact, or the
conclusions of the HC are manifestly perverse are based on surmises, conjectures & are
unsupportable by evidence, the SC may go behind the findings of facts arrived at by the
courts below. The SC interfere with concurrent findings are vitiated by errors of law, or the
conclusions reached by the court below are so patently opposed to well established principles
as to amount to miscarriage of justice” or where the interest of justice so requires.16

It is also pertinent to note that HC erred in passing the impugned judgment in criminal appeal
on the ground that circumstances are not of conclusive nature. In the present case there are
certain material aspects which were lost sight by the Trial Court & HC but have been noted

14
State of Madras v. Vaidyanatha Iyer, 1958 Cr.LJ 232
15
AIR 1965 SC 26
16
Dalbir Kaur v. State of Punjab, AIR 1977 SC 472

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by the SC that the Domestic Violence be deprecated. Therefore in the present case HC did
not appreciate evidence. Hence the present appeal is maintainable.

C. THAT THE GRAVE INJUSTICE HAS BEEN DONE

It is most humbly submitted before this Honourable Court that grave injustice has
been done in the present case. In this case all the circumstantial evidence is clearly
establishing that the HC did not use its faculty. There are no two views present in the present
case to favor one.

It is also pertinent to note that SC does not interfere with the sentence passed by lower courts
unless there is an illegally in it, or is unjust in the facts & circumstances of the case, it is
unduly lenient, it involves any question of principle or where the HC does not exercise its
discretion judicial on the question of sentence.17 In the case at hand, the HC & Trial Court did
not exercise its discretion & acquitted the mother-in-law on the plea that she is a woman. Shri
Suresh Goyal was also acquitted being youth of 30 years.

Also the SC does not interfere with the findings of HC on acquittal unless such finding is
clearly unreasonable, or unsatisfactory or perverse, or manifestly illegal or grossly unjust or
is vitiated by some glaring infirmity in the appraisal of evidence or the HC completely
misdirects itself in reversing the order of conviction by the Trial Court or it results gross
miscarriage of justice.18

It is also contended that in the present case SC has issued notice to the police regarding the
deprecation of the charge of domestic violence & maintainability of Appeal. If the appellant
proves that a concurrent decision of two or more courts or tribunal is manifestly unjust, it will
be the duty of SC to remedy the injustice. 19 Thus when the judgment under appeal has
resulted in grave miscarriage of justice by some misapprehension or mistake in the reading of
evidence or by ignoring material evidence then it is not only empowered but is expected to
interfere to promote the cause of justice.20

The extent of injustice caused to the deceased demands the intervention of the Honourable
Apex Court. Hence, the present petition is maintainable.

17
State of Maharashtra v. MH George, AIR 1965 SC 722
18
State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840
19
M/s Variety Emporium v. R.M. Mohammad Ibrahim, AIR 1985 SC 207
20
Subedar v. State of UP, AIR 1971 SC 125

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II: WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED

ON THE BASIS OF ORAL & DOCUMENTARY EVIDENCE ADDUCED BY THE PROSECUTION?

It is humbly submitted before this Honorable Court that the decision of HC to set aside
conviction is unjustifiable. Firstly, the accused Mrs. Shalini, Shri Dinesh & Shri Suresh are
guilty of offences charged under section 498A & Section 4 of Dowry Prohibition Act read
with section 34 of IPC [A] & 302 read with section 34 [B]. And the Chain of circumstantial
evidence is clearly established and there exist a reasonable doubt. Hence they should be
convicted. As to prove each & every charges alleged, appellant will deal with all the charges
separately.

A. THE ACCUSED ARE GUILTY OF OFFENCE U/S 498A IPC & SECTION 4 OF DOWRY

PROHIBITION ACT READ WITH SECTION 34 IPC

It is humbly submitted before this Honourable Court that all the accused are guilty of
the offence of cruelty for dowry.Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years & shall also be liable to fine.21

In the case at hand, relationship between deceased & her husband continued to be estranged
due to demand of dowry & excessive drinking of Suresh Goyal who started abusing &
beating in the presence of servants.22 It is pertinent to note that the Drinking of the husband
coupled with beating & demanding dowry have been taken to amount to cruelty within the
meaning of section 498A.23

In order to prove the offence under section 498A the following ingredients must be
fulfilled:
1. The women must be married
2. She must be subjected to cruelty or harassment &
3. Such cruelty or harassment must have been shown either by husband of the woman or
by the relative of her husband.
In the instant case, the marriage between the deceased and Suresh Goyal was solemnized on
17.07.2012 with pomp and show. Also the factum clearly elucidates that Mrs. Sharda Goyal

21
Section 498A of IPC,1860
22
Moot Proposition, Para 9, Line 3rd
23
P.B. Biksdhapath v. State of AP, 1992 Cr.LJ 1186(AP) ( Quoted in Ratanlal & DhirajLal, The IPC, Lexis
Nexis, 34th Ed. Sec.498A)

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did not receive proper treatment from her mother-in-law, sister-in-law as also the father-in-
law. Shalini Goyal was continuously making dowry demands for Mercedes Benj Classic Car
& for a FD of ₹ 1 Crore. However a FD of ₹ 25 lacs was given in the name of Sharda Goyal.
Treatment by all the family members including Shri Dinesh Goyal & his wife Shalini Goyal,
became hard & started ill-treatment with the daughter-in-law. With mental disturbance &
non-congenial atmosphere Sharda Goyal could not conceive. Her relations with her husband
became strained. The mother-in law threatened Sharda to give birth to a baby boy, within
one year, else she would be thrown out & she would re-marry her son. By grace of god
Sharda Goyal gave birth to a baby girl, but the Goyal family was not happy & was cursing
Sharda Goyal. No usual ceremonies & festivities were organized. 24 The above mentioned
instances clearly establish the involvement of husband and his relatives in the commission of
said offence.

Also it is pertinent to note that SC held that cruelty for the purpose of offence need not be
physical. Even mental torture or abnormal behavior may amount to cruelty & harassment in a
given case.25

In the present case, PW 10 stated that all the three accused had forcibly administered poison
with intention to kill his daughter for non-fulfillment of demand of dowry. Also the deceased
used to maintain a daily diary minutely which was exhibited to frame charges under section
498A substantiates the guilt.

In Satya Narayan Tiwari v. State of UP,26 the deceased had been subjected to cruelty by her
husband & mother-in-law over the demand of Maruti Car as dowry and persistently pressed
by them after about six months of the marriage & continue till her death. Accused was
convicted under section 498 A & 304B IPC.

Similarly in Shanti Behal v. State (Delhi Admin.) 27 , in the case of bride burning, the
husband & the mother-in-law of the deceased were charged with harassment, cruelty and
maltreatment & demand of Dowry. The mother-in-law poured kerosene on her body and set
her on fire. The victim dying declaration was corroborated by medical & other evidences.
The Delhi HC upheld the sentence under section 302 & 498A.

24
Moot Preposition , Para 7th Line 10
25
Gananth Pattanaik v. State of Orissa, (2002) 2SCC 619
26
2011 Cr.LJ 445
27
1994 Cr.LJ 2043

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In Inder Raj Malik vs. Sunita Malik,28 the Delhi HC held that a person can be convicted
both under section 4 of Dowry Prohibition Act 1961 as well as under section 498A, IPC
because it does not create any situation for double jeopardy. Section 498A, IPC provision is
distinguishable from sec. 4 of the Dowry Prohibition Act, 1961 because in the latter mere
demand of dowry is punishable & existence of element of cruelty is not necessary. Hence a
person can be prosecuted in respect of both the offences punishable under section 4 of Dowry
Prohibition Act & 498A IPC.

In the case at hand, all the ingredients of the above mentioned crimes are complete & hence
all the accused are guilty of the offence charged under section 498A IPC & section 4 of
Dowry Prohibition Act read with section 34 IPC.

In a case where the accused was charged to have administered the insecticide into the mouth
of the victim as she could not bring the dowry from her parents, the trial court convicted them
under section 302, 34 & 498-A IPC.29

In the present case the accused tortured for dowry, maltreated the victim for long & then
there was a pre-arranged plan of committing the offence of murder. Also all the accused did
participate in the crime in some manner. Father-in-law purchased the poison “organo
phosphorus” mother-in-law administered the poison to the accused & husband controlled the
body of the deceased physically & forced her to drink. Therefore respondents are guilty for
the offence of murder, dowry death & cruelty for dowry death.

ACCUSED ARE GUILTY OF OFFENCE CHARGED UNDER SECTION 304B IPC

It is humbly submitted before this Honourable court that the accused is guilty for the
offence of dowry death. Where the death of a woman is caused by any burns or bodily injury
or occurs otherwise than under normal circumstances within seven years of her marriage & it
is shown that soon before her death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with, any demand for dowry,
such death shall be called “dowry death”, and such husband or relative shall be deemed to
have caused her death. 30

28
(1986) Cr.LJ 1510
29
Hardeep Singh v. State, 1996 Cr.LJ 2733 ( P&H)
30
Section 304B of IPC,1860

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Explanation.—For the purpose of this section, “dowry” shall have the same meaning as in
section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry
death shall be punished with imprisonment for a term which shall not be less than seven years
but which may extend to imprisonment for life.]

To prove the guilt of the respondent, appellant has to prove following ingredients of an
offence:

1. The death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances.31
2. Such death should have occurred within 7 years of her marriage.32
3. She must have been subjected to cruelty or harassment by her husband or any relative
of her husband.
4. Such cruelty or harassment should be for or in connection with demand for dowry.33
In the present case, all the ingredients of dowry death have been fulfilled. The death of the
deceased happened in the abnormal circumstances. Also such death has occurred within the
seven year of her marriage. Also the deceased has been subjected to cruelty & harassment by
her husband & mother-in-law. And such cruelty was in connection of the demand of dowry of
Mercedes Benz and FD of ₹1 Crore. Hence the accused is guilty of the offence of Dowry
death.

Dowry means any property or valuable security given or agreed to be given either directly or
indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the
parent of either party to a marriage or by any other p0erson, to either party to the marriage or
to any other person at or before or any time after the marriage.34

It is further contended that Section 4 of the Dowry Prohibition Act, 1961 prohibits the
demand for “giving” property or valuable security which demands, is satisfied, would
constitute an offence under section 3 read with section 2 of the act. Also the minor variations
could not affect credibility of prosecution version.35

31
Akula Ravinder v. State of AP, AIR 1991 SC 1142
32
Arbind Kumar Ambasta v. State of Jharkhand, 2002 Cr. LJ 3973( Jhar)
33
Kashmir Kaur & Anr. v. State of Punjab, AIR 2013 SC 1039
34
Sec. 2 of Dowry Prohibition Act, 1961
35
Rajesh Pandey v. State of UP, (2009) 5 SCC 132

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No hard & fast rule of a universal application laid down by prescribing time limit too soon
before death. 36 Where the wife was persistently subjected to cruelty & harassment by the
husband & other in laws for gold ornaments and the last such torture was practiced fifteen
days before the occurrence, the court said that the requirement of “soon before” was very
well justified.37

Where the wife was harassed by her husband’s in-laws for dowry & that she died under
abnormal circumstances due to aluminum phosphide poisoning. There is sufficient evidence
to hold the appellants guilty of offences punishable under section 304 B of IPC & 498A of
the IPC38. Also the conduct of the accused prior to & immediately after the occurrence clearly
shows that they were not innocent. SC upheld the conviction.39

Where death was proved to have been caused by poisoning & there was consistent evidence
of torture for demand of dowry, it was held that the fact that the accused husband killed his
wife stood proved & conviction was proper.40 Also the facts and circumstances proved the
guilt of the accused person even in the absence of any eye-witness.41

In matrimonial offence like dowry death, the courts are required to be cautious & required to
pay more attention in trial of the cases, appreciation & marshaling of evidence, especially in
the light of circumstances which normally do not permit the parents of the bride or the bride
to react & to respond, to report the matter to the police or the other authorities or to members
of the community, unless they are compelled to do so or circumstance become beyond their
tolerance. Evidence of relative or interested witness cannot be rejected in toto on the ground
of their relation. Relatives are the last persons to spare deal culprit & implicate an innocent
falsely.42

In Nand Kishore v. State of Maharashtra 43 it was held that all the ingredients of this
section must exist conjunctively. There must be nexus between cruelty & harassment to raise
the presumption under section 113B of the evidence Act. When a person has committed the
dowry death of a woman & it is shown that soon before her death such woman has been

36
Vidhya Devi v. State of Haryana, AIR 2004 SC 476
37
Yashoda v. State of MP, AIR 2005 SC 1411
38
Kulwant Singh & Ors. v. State of Punjab, AIR 2013 SC 1567
39
Rajesh Bhatnagar v. State of Uttrakhand, AIR 2012 SC 2866
40
Butan Sao v. State of Bihar, 2000 (2) BLJR 1400
41
Sarju Modi v. State of Bihar, 2003 Cr.LJ 631 Jhar.
42
L.K. Nayak v. State, 2013 Cr. LJ 1792 (Chh.)
43
1995 Cr.LJ 3706

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subjected by such person to cruelty or harassment for, in connection with any demand for
dowry the court shall presume that such person had caused the dowry death.44

The presumption under section 113B shall be raised only on the proof of following
essentials:

1. When the accused is tried for the offence under section 304B
2. The woman has subjected to cruelty or harassment by her husband or his relatives
3. Such cruelty or harassment was for in connection with any demand for dowry.
4. Such cruelty or harassment was taking place before her death.45
In the case at hand, the accused are being tried for the offence of dowry death as the deceased
was subjected to cruelty by her husband and his relative for the demand of dowry. Such
cruelty ended up with the administration of organo phosphorous and ultimately the death of
the deceased. The court ruled out that presumption can also be drawn from drinking &beating
habits of the husband. In the case at hand, due to demand of dowry & excessive drinking of
Suresh Goyal started abusing & beating in the presence of servants.

The SC ruled out that harassment one month before death held to be covered by the words
“soon before”. 46
Also the words “Soon before” cannot be limited to fixed time
limit.47 Appellant would like to reiterate the rider enunciated by the Supreme Court in its
judgment in the case of K. Prema S. Rao v. Yadla Srinivasa Rao,48 at p.11 (para 27) to the
effect that "the Legislature has by amending the Penal Code and Evidence Act made Penal
Law more strident for dealing with punishing offences against married women.

In Alamgir Sani v. State of Assam49, the SC held that merely because the accused was
acquitted under section 302 IPC (Charge of murder) the presumption under s. 113 B as to
dowry death did not stand automatically rebutted.

In Soni Devrabhai Babubhai v. State of Gujarat and Others50, the SC observed: "Section
304B of the IPC and the cognate provisions are meant for eradication of the social evil of
dowry, which has been the bane of Indian society and continues unabated in spite of

44
Section 113B of IEA,1872
45
Keshab Chandra Panda v. State of Orissa, 1995 Cr.LJ 174 (Ori)
46
Amar Singh v. State of Rajasthan, AIR 2010 SC 3391
47
Kailash v. State of MP, AIR 2007 SC 107
48
AIR 2003 SC 11
49
AIR 2003 SC 2108
50
(1991) 4 SCC 298

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emancipation of women and the women's liberalization movement. Even the report of the
Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the
role of legislation in dealing with the social evil as under:

"Legislation cannot be itself normally solve deep rooted social problems. One has to
approach them in other ways too, but legislation is necessary and essential, so that it may give
that push and have those educative factors as well as the legal sanctions behind it which help
opinion to be given a certain shape.51

In Rajbir v. State of Haryana,52 a two judge Bench of the SC directed all trial court to
ordinarily add section 302 to the charge of section 304B, so that death sentences can be
imposed in such heinous & barbaric crimes against woman. Also in Nathu v. State of UP,53
Allahabad HC observed that, “dowry death is worse than murder.

B. ACCUSED ARE GUILTY OF OFFENCE CHARGED UNDER SECTION 302 OF IPC.

It is most humbly submitted before this Honourable court that the accused are guilty
for committing the offence of murder under Sec 302, IPC. Sec 302 prescribes the punishment
for committing murder. In order to bring a successful conviction under this charge, however,
it is pertinent to refer to Sec 300, IPC which elucidates the essentials of murder.

A person is guilty of murder if he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in the ordinary course of nature results into death or commits an act so dangerous that
it must, in all probability cause death of that person.54 The Appellants humbly contends that
both, the actus reus [1] & the mens rea [2] of the crime are established in the instant matter.
In the present case death was caused by poisoning which comes under the death by doing an
act with the intention of causing death.

1. ACTUS REUS OF MURDER IS ESTABLISHED

Actus reus is any wrongful act55. Thus, in a case of murder, actus reus would be the physical
conduct of the accused that causes death of the victim. In the instant case, the actus reus is

51
202nd Law Commission Report
52
AIR 2011 SC 568
53
Criminal Bail Application No. 12466 of 2002 Quoted of 202 nd Law Commission Report
54
Sec 300, IPC,1860
55
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2 nd Ed. 2006)

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established by way of witness statements [1.1], forensic report [1.2], dying declaration [1.3]
& conduct of accused [1.4].

1.1 Witness Statements

It is humbly submitted before this Honourable Court that the testimony of all the
witnesses is reliable and enforce the guilt of the accused. On 24.5.2015, Goyal family
planned & Mr. Dinesh Goyal purchased organo phosphorus sold under the trade name of
“NUVAN” from Shri Sanjay Kumar PW-1 a shopkeeper. On 25.5.2015, Smt. Sharda Goyal,
forcibly administered poison to the deceased to kill her. Her son also held the body of the
deceased physically & forced her to drink. Shri Surendra Kumar PW-2, a servant heard the
shrieks & cries of the deceased. Two other servants Shri Ved Prakash PW-3, & Shri Om
Prakash PW-4, reached on the spot & smelt poisonous odour in the room. The articles in the
room were scattered. The deceased was lying on the bed having bruises & contusions on her
face. Water was splashed on the bed as well as on the floor of the room. The clothes of the
deceased were also drenched. Shri Om Prakash, PW-4, requested Shri Dinesh Goyal &
Suresh Goyal to take the deceased to the hospital immediately but accused replied that there
was no necessity. In the meantime Shri Anil Kumar PW-5, & Shri Shiv Kumar PW-6,
relatives of the deceased also arrived. They noticed the condition of the room & also the
precarious & deteriorating condition of the deceased. They also smelt poisonous odour in the
room. On being asked what had happened, she raised her hand towards the accused Shri
Dinesh Goyal & Mrs. Shalini Goyal. On next day, Dr. O. P. Choudhary, PW-8, examined the
deceased at about 6 a.m. & noted the patient was semi-conscious with history of consumption
of poisonous substance.

1.2 Forensic Report

The post mortem report becomes important in cases where the cause of death is to be
established & is a matter of controversy.56 Moreover, it is not possible for the Appellant to
explain each & every injury suffered by the witnesses.57 In the present case it was also noted
that complete examination of the body could not be done because patient was in serious
condition.

56
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883
57
Ravindra Shantaram Sawant v. State of Maharashtra, AIR 2000 SC 2461

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Also the B.P. was not recordable & PW-8 Doctor O. P. Choudhary only administered the
initial treatment. He carried out Gastric Lavage first with saline solution & then with ordinary
tap water. Thereafter he referred the deceased at S.M.S. Hospital, Jaipur which was
informed to the police. She died at the Hospital. Therefore, saving the life of deceased was
the priority for doctor.

However, for the sake of convenience, the Appellant feels obliged to assist this Hon’ble
Court in understanding the intricacies of the PMR. In the present case Post mortem was
conducted by Dr. Piyush Kapila, PW-9 in association with Dr. V. K. Mishra, Assistant
Professor Forensic Medicine. The nature of the injuries & parts of the body on which
sustained or received suggest that this was an act caused by accused while overpowering her
to administer forcible poison. No other view can be drawn or taken if the injuries referred to
above are analysed in the probable human conduct at a given situation.

According to Stedman's Medical Dictionary58, "convulsion" means a violent spasm, which

may also be hysterical. Modi dealing with Pharmacological action of organo-phosphorus
compounds in his work has observed 59 : "The organo-phosphate compounds are absorbed
from the skin, respiratory & gastro-intestinal system. Its site of activity is considered to be at
the myoneural junctions & synopses of the ganglions. Chemically, it interferes with the
activity of enzyme acetyl cholinesterase in inhibiting its action on acetyl choline. Its action
resembles that of physistigmine & neostigmine.

In Dr. K.S. Narayan Reddy's "Medical Jurisprudence & Toxicology", 1st Edition, Chapter 35
dealing with "Agricultural poison" like organo phosphorus, the poison involved in the present
case, at page 539 it has been reported as under:

"They have three distinct toxic actions. (1) A muscarine-like effect which potentiates
postganglionic parasympathetic activity & affects pupils, bronchial muscles, salivary & sweat
glands (stimulated), urinary bladder (contracted), cardiac sinus node (blocked). (2) Nicotine-
like stimulation followed by paralysis of preganglionic & somatic motor nerves, causing
twitching’s of the eyelids, tongue & facial muscles followed by neuromuscular block &

58
Thomas Stedman, Stedman's Medical Dictionary, (28th Ed., Wolter Kluwer Health, 2005)
59
Modi, Medical Jurisprudence & Toxicology, Twenty Second Edition, in Chapter III of Section II at pages 86

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paralysis. (3) Central nervous system stimulation followed by depression causing headache,
giddiness, restlessness, apprehension, tremors, ataxia, insomnia, coma & death.60

Signs & Symptoms: Onset of systemic symptoms is most rapid following inhalation, & least
rapid following absorption from the skin. With massive ingestion or inhalation, symptoms
may begin within five minutes, or may be delayed, for half to one hour & are at a maximum
in 2 to 8 hours. Signs & symptoms appear when the cholinesterase level drops to 30% of its
normal activity. The respiratory or gastrointestinal symptoms are more marked depending on
the route of entry.”61

These expert opinions clearly specify that the deceased was subjected to domestic violence &
murder has been committed by the accused. Also as to the cause of death it was opined that
the deceased had died due to asphyxia secondary to the organo phosphorus poison. Hence the
accused is guilty of the offence of murder.

1.3 Dying Declaration

It is humbly submitted before this Honourable Court that the dying declaration is
reliable & requires no corroboration for conviction. The Section 32(1) of IEA only requires
that there must be a statement made by a person about the cause of his death, for its
admissibility. & it need not disclose all surrounding circumstances.62And a mere omission, in
a dying declaration, of the motive of the accused to kill the deceased does not affect its
veracity, insofar as it relates to the cause of death.63

Word “Dying Declaration” means a statement written or verbal of relevant facts made by a
person, who is dead. 64 It is the statement of a person who had died explaining the
circumstances of his death. This is based on the maxim ‘nemo moriturus presumuntur
mentri’ i.e. a man will not meet his maker with lie on his mouth. Our Indian law recognizes
this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.65

Dying declaration recorded on the basis of nods and gestures is not only admissible but
possesses evidentiary value, the extent of which shall depend upon who recorded the

60
Dr. K.S. Narayan Reddy, Medical Jurisprudence & Toxicology, 1 st Ed., Ch.35, at Pg. 539
61
Ibid.
62
State v. Javed Ansari, Delhi HC on 14 February, 2012
63
Mahender vs State, Delhi HC on 1 November, 2013
64
Section 32(1), of IEA, 1872
65
Satbir Singh and Ors. Vs. State of Haryana, SC on 14th Sept.2005

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statement, what is his educational attainment, what gestures and nods were made, what were
the questions asked whether they are simple or complicated - and how effective or
understandable the nods and gestures were.66

In the present case when Shri Anil Kumar PW-5, and Shri Shiv Kumar PW-6, relatives of the
deceased arrived. They noticed the condition of the room and also the precarious &
deteriorating condition of the deceased. When they asked the accused what had happened, he
reported that it was his private life & they need not bother. And on being asked what had
happened, she raised her hand towards the accused present there - Shri Dinesh Goyal & Mrs.
Shalini Goyal. It means it was an oral dying declaration which clearly shows that crime has
been committed by all the accused.

1.4 Conduct of Accused67

A fact can be proved by conduct of a party & by surrounding circumstances.

Statements accompanying or explaining conduct are also relevant as part of the conduct itself.
Previous conduct of the accused can be inferred from the evidence given under section 498A
and 304B. Also it is important to note that the accused were present at place of occurrence,
which can be corroborated by the testimony of various witnesses. The conduct of being last
seen with the deceased is relevant.68 Where once it is established that the husband (accused)
was with his wife at the place of occurrence and when there is no explanation as to how he
parted his company with her then it lends assurance to the evidence of eye witness as to the
manner of occurrence.69

2. MENS REA OF MURDER IS ESTABLISHED

Mens rea is considered as guilty intention which is proved or inferred from the acts of the
accused. It is submitted that the intention to kill is established [2.1] in light of clear-cut
motive & preparation of the accused [2.2].

2.1 The accused had intention to kill

It is presumed that every sane person intends the result that his action normally
produces & if a person hits another on a vulnerable part of the body, & death occurs as a

66
Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182
67
Section 8, IEA, 1872
68
Kansa Behra v. State of Orissa, AIR1987 SC 1507 (Ratanlal & Dhirajlal, IPC, 25th Ed.at Pg. 89)
69
Darshan Singh v State of Punjab, 1955 SCC (Cri) 702 See Also State v. Ramesh, on 28 February, 2015

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result, the intention of the accused can be no other than to take the life of the victim & the
offence committed amounts to murder.70 Moreover, the intention to kill is not required in
every case, mere knowledge that natural & probable consequences of an act would be death
will suffice for a conviction under s. 302 of IPC.

2.2 Motive & Preparation

It is pertinent to note that the SC laid down that in case of murder by poisoning the
prosecution must establish that death took place by poisoning & that an accused had an
opportunity to administer poison to the deceased. In the case at hand appellant had proved
both the things. Therefore, accused is guilty for the offence of murder71.

It is also humbly submitted that accused are guilty of offence charged under section 498A,
304 B & 302 read with section 34. Section 34 elucidates that when a criminal act is done by
several persons, in furtherance of the common intention of all, each of such persons is liable
for that act in the same manner as if it were done by him alone.

This section is intended to meet cases in which it may be difficult to distinguish between the
acts of the individual members of a party or to prove what part was exactly part was exactly
taken by each of them in furtherance of the common intention of all.72 To constitute common
intention it is necessary that the intention of each one of them was known to the rest of them
& was shared by them.73

It is also pertinent to note that section 34 is the rule of evidence. When a young wife was
burnt to death by her accused husband & the in-laws because they were unhappy over the
insufficient dowry, they were held liable to be convicted under section 302 read with section
34.74

Two elements are required to fulfill the requirements of S. 34. One is that the person must be
present on the scene of occurrence & the second is that there must be a prior concert or a pre-

70
Public Prosecutor v. Somasundaram And Ors, AIR 1959 Mad 323
71
Arundhati Keutuni And Anr. v. The State 1968 Cr.LJ 848
72
Sachin Jana And Anr v. State Of West Bengal, SC on 25 January, 2008
73
Ratanlal & Dhirajlal, Indian Penal Code, 34th Ed. Lexis Nexis, Section 34
74
State of UP v. Ashok Kumar Srivastava, AIR 1992 SC 840

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arranged plan.75 In the present case both requirements are fulfilled. On 25.05.2015 all the
accused people were present at the place of occurrence & there was a pre-arranged plan.

C. CIRCUMSTANCES OF THE CASE ARE OF CONCLUSIVE NATURE

Bearing in mind that it is not for the prosecution to meet any & every hypothesis
suggested by the accused, howsoever extravagant & fanciful it might be 76 , it is humbly
submitted before this Honorable Court that the circumstantial evidence in the instant matter
shows that within all human probability, the act must have been done by the accused.77

It is humbly submitted before the Honourable Court that it is one of the established principles
of law that a witness may lie the facts but not the circumstances. 78 Direct evidence is not
necessary for proving the person behind the crime. The court reiterated that the guilt of a
person can be proved by circumstantial evidence also. 79 So far as this instant case is
concerned there are 10 witnesses & none of them was eye witness & it does not affect the
case because justice is sought on ardent principles of law.

The HC has unnecessarily doubted the PMR which recorded as many as aforesaid seven
injuries. There were various contusions of big size on periorbital area, intraorbital area,
forehead, upper eyelid, cheek, 8 cm. x 7 cm. contusion over the chin, contusion over the
lower lip, 11 cm. x 5 cm. multiple small abrasions over neck & upper chest, 10 cm. x 4 cm.
contusion in infra-axillary area. The aforesaid nature of the injuries indicates that they could
not have been caused by convulsions. The accused was in the company of the victim in the
same room is not disputed. Thus, it was for him to explain the injuries found on the person of
deceased. Exact number of injuries had not been noted by Dr. Chaudhary PW-8 as he himself
had admitted that he could not examine the entire body physically as the condition of the
victim was precarious & he was busy in giving her treatment then referred her to SMS
hospital, Jaipur. The victim became unconscious at the house itself.

The HC has unnecessarily doubted the deposition of the autopsy surgeon who has clearly
opined that the nature of injuries indicated positively the administration of poison forcibly to
the victim. Such injuries could be caused while administering poison forcibly when victim

75
Virendra Singh v. State Of M.P on 9 August, 2010
76
State of UP v. Ashok Kumar Srivastava, AIR 1992 SC 840
77
State of UP v. Randhir, AIR 1959 All 727
78
Rameshbhai Mohanbhai Koli & Ors. v. State of Gujarat, (2011) 11 SCC 111
79
Sandeep v. State (NCT Of Delhi) Delhi HC on 5 February, 2015

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was trying to save herself from that. Dr. Chaudhary, PW-8, has also stated that it could not be
a suicidal case. However, on a suggestion being made to the PW-8 that it could be a case of
voluntary consumption of poison by the victim to commit suicide, obviously the doctors were
not able to deny the said suggestion as they were not eye witnesses. Moreover they were not
supposed to be an arbiter on this issue whether the victim had taken the poison herself. Their
objective opinion stands writ large that considering the nature of injuries it could be a case of
forcible poisoning & in the process accused had caused injuries while deceased had
struggled. Thus the approach of HC cannot be said to be of objective assessment of evidence.

The SC ruled out that the testimony of a witness could not be discarded for the reason that
there were minor contradictions in their versions. 80 Also, there is a minor contradiction
between the PW8 & PW9 statement related to injury of the deceased person at the scene of
crime so it cannot be used for discarding the testimony of both the witnesses & it does not
affect the chain of circumstantial evidence.

The statement of the witness cannot be thrown away because of few omissions. If the story is
probable in the sense that it is coming in the natural flow & it finds support from the
surrounding circumstances, it cannot be suggested that the story must be photographically
accurate and should stand to the test of word to and in measurement inch to inch.81

There is absolutely nothing to doubt the statement of Sanjay Kumar PW1 for purchase of
above said NUVAN poison & when it was found in the house. Also there is nothing to doubt
that it was purchased by the accused & it was found in the room and due to this poison only
the victim succumbed to death. Also it is well understood that in summers there was no
necessity to purchase a deadly poison for killing the flies. Apart from that the administering
of poison forcibly is supported by medical evidence in the form of injuries which were found
on the front side shows sign of struggle by deceased to save herself in the said process. These
injuries could not have been caused by convulsions & the overall conduct of the accused &
the gesture of the deceased in pointing her hand towards her husband as the person
responsible for her condition, delay caused by the accused in taking the victim to the hospital
knowing fully well the kind of deadly poison organo phosphorous unerringly points towards
his guilt & the chain of circumstances is complete.

80
Bhagirathi v. State of Haryana, AIR 1997 SC 234 (Quoted in The Law of Evidence, Ratanlal & Dhirajlal,
25th Ed., Pg.536)
81
State v. Javed Ansari on 14 February, 2012 Delhi HC

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Men may lie but the circumstances do not, is the cardinal principle of evaluation of
evidence.82 The overall circumstances unerringly point towards the guilt of the accused. In
the present case on 25.05.2015 Smt. Sharda Goyal forcibly administered poison to the
deceased to kill her on account of Dowry & her son also held the body of the deceased
physically & forced her to drink. Therefore the presence of accused at the place of occurrence
was proved & deceased was also last seen in the company of accused by the servants. So the
burden of proving the fact lies upon the accused & also the circumstances in which the
deceased met his death.

Assuming for the sake of argument that prosecution is not able to establish the certain facts.
The SC ruled out that in number of cases, in which it would be impossible for the prosecution
to establish certain facts which are particularly within knowledge of the accused. The burden
of proving the case then lies on the accused.83 In such a situation accused has to prove that
how she died.

In the present case by the circumstantial evidence & witnesses’ statement it is clearly
established that the accused had committed murder by forcibly administered poison by the
mother in law, son in law & father in law. Also PW-4 requested to the accused to take the
deceased to the hospital immediately. But they replied that there was no necessity.

D. CASE IS PROVED BEYOND REASONABLE DOUBT

It is humbly submitted before this Honourable Court that present case is proved
beyond reasonable doubt. The general rule is that a party who desires to move the court must
prove all facts necessary for that purpose84 but it is subject to exception that he will not be
required to prove such facts as are necessarily within the knowledge of other party. 85 In the
present case the burden of proving that accused had not committed the offence of cruelty,
dowry death & murder lies on the accused. Failure to explain that the deceased was in
unconscious position coupled with other evidence is a grave circumstance which militates
against such a person. 86 There is overwhelming evidence on record indicating that the
behavior of the accused towards the deceased was improper.

82
Rameshbhai Mohanbhai Koli & Ors. v. State of Gujarat, (2011) 11 SCC 111
83
Shambu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404
84
Section 101 of IEA,1872
85
Section 106 IEA, 1872 See Also Raja Ram v. State Cri. Appeal No. 211 of 2013
86
State of HP v. Rajiv Jassi, MANU/0531/2016 (Decided on 6/5/2016 by SC)

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In State of Punjab v. Amarjit Singh,87 it was held that where the prosecution proved that
there was a strong motive for the crime, that the deceased woman was last seen alive in the
company of the Accused & that the death was unnatural & homicidal, it was held that the
burden to account for the circumstances of death was shifted to the person in whose care the
woman met her death. He alone must be in possession of the knowledge of those
circumstances.

In Rajammal v. State of T.N.,88 in case of dowry death, the victim died due to manual
strangulation & the victim’s in-laws & husband’s brother alone were present in the house at
the time of her death. Their subsequent conduct was consistent only with their guilt. It was
held that the only possible inference was that they participated in the crime & the burden to
prove the contrary lay on them since it was within their special knowledge.

Where the dowry death occurred in the in-laws place, the onus was laid on the inmates of the
house to explain the circumstances of the tragic end of the life of the married woman. 89If
there was proof that the accused (husband) ill-treated his wife. His presence at the place of
occurrence was also proved. His wife was last seen in his company. The Court said that this
could be taken into consideration to convict him. Each & every circumstance was pointing
the finger of guilt towards the accused.90

This Court has considered in Sharad Birdhichand Sarda v. State of Maharashtra91 case of
murder by administering poison & dealt with mode & manner of proof in such cases. Four
circumstances are to be examined before recording a conviction.

i. There was a clear motive for the accused to administer poison to the deceased,
ii. the deceased died of poison said to have been administered,
iii. that the accused had poison in his possession
iv. that he had an opportunity to administer the poison to the deceased.

The aforesaid tests stand satisfied in the instant case & the prosecution has proved the case
beyond periphery of doubt. The conduct of the accused & gesture of the victim at the crucial

87
1989 Cr.LJ (NOC) 13 (P&H) ( Quoted in The Law of Evidence, Ratanlal & Dhirajlal, 25th Ed., Pg.536)
88
1993 Cr.LJ 3029 (Mad.)( Quoted in The Law of Evidence, Ratanlal & Dhirajlal, 25 th Ed., Pg.87)
89
Kundala Bala Subranayam v. State of AP, 1993 Cr.LJ 1635(Quoted in The Law of Evidence, Ratanlal &
Dhirajlal, 25th Ed., Pg.87)
90
State of Maharashtra v. Shivaji Anandrao, 2002 Cr.LJ 4198 (Bom) (Quoted in The Law of Evidence,
Ratanlal & Dhirajlal, 25th Ed., Pg.537)
91
AIR 1984 SC 1622

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time as projected in the case, medical evidence, evidence as to purchase of poison unerringly
point towards the guilt of the accused.

A reasonable doubt must not be imaginary, trivial or merely possible doubt; but a fair doubt
based upon reason & common sense arising out of the evidence of the case.92In the above
mentioned facts it is clearly stated that the crime was committed by the accused & not by the
any other person. It is clearly establishing the chain of circumstantial evidence. There is no
doubt in this as to “may have committed or has committed”93, the prosecution has established
this by legal, reliable & unimpeachable evidence for conviction to be sustained. Also in the
present case there is no two views are possible.

Therefore, it is humbly submitted before this Honourable Court that the charge under section
302,304B, 498A read with section 34 of the IPC has been made out due & all the accused
must be convicted.

92
Chhotanney & Ors vs State Of Uttar Pradesh & Ors on 18 February, 2009
93
Brij Bhushan Sharma vs State Of U.P. 2001 CriLJ 1384

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PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited & arguments advanced,
it is most humbly prayed & implored before the Hon’ble Court, that it may be graciously
pleased to adjudge & declare -

1. Declare that the SLP is maintainable under article 136 of the Constitution of India, 1950.

2. Declare that the Hon’ble HC of Rajasthan did err in acquitting the accused.

3. Accused Dinesh Goyal be awarded imprisonment for life & his wife & son for seven years
rigorous imprisonment.

& Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity & Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Date: 03.09.2016 Sd/-

Place: Jaipur (Counsel for the Appellant)

Memorial on Behalf of Appellant