3RD UPES NATIONAL TRIAL ADVOCACY MOOT COURTCOMPETITION,2017

TEAM CODE- TA05

3rdUPES NATIONALTRIALADVOCACYMOOTCOURT
COMPETITION,2017

BEFORE THE COURT OF SESSIONS

AT SEHRADUN
S.C. NO.213 OF 2016

STATE

(PROSECUTION)

v.

RAJESH SINGH & ORS.

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 302 READ WITH SECTION 120B OF THE VINDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

AKSHAY BHASIN YOGESH PAL MAYANK

U.I.L.M.S, GURGAON, HARYANA

MEMORANDUM ON BEHALF OF THE DEFENCE

 3RD UPES NATIONAL TRIAL ADVOCACY MOOT COURTCOMPETITION,2017

TABLE OF CONTENTS

Contents

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

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

3. INDEX OF AUTHORITIES............................................................................................ 4

4. STATEMENT OF JURISDICTION................................................................................ 6

5. STATEMENT OF FACTS .............................................................................................. 7

6. STATEMENT OF CHARGES ........................................................................................ 8

7. SUMMARY OF ARGUMENTS ..................................................................................... 9

8. ARGUMENTS ADVANCED ISSUE ........................................................................... 10

9. PRAYER ........................................................................................................................ 16

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LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defense Witness
Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
Mad Madras High Court
n. Foot Note no.
Ori Orissa High Court
p. Page No.
P&H Punjab and Haryana High Court
Pat Patna High Court
PW Prosecution Witness
Raj Rajasthan High Court
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v./ Vs. Versus

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INDEX OF AUTHORITIES

TABLE OF CASES:

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

.
2. Sharma G, Tandon V, Chandra PS. Legal sanctity of consent for surgical procedures in India. Indian J
Neurosurg. 2012;1:139–43.

3. . Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark babu Godbole and Anr. A.I.R. 1989 S.C. 1570.

4. A.S. Mittal vs. State of U.P., 1989 AIR 1570, 1989 SCR (3) 241.

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

6. Devender V. State (2002) 5SCC 234 , Mohd. Khalid V. State (2002) 7SCC 334

7. Lenart Schusslar V. Director Of Enforcement , New Delhi,(1971) 1SCJ 199 ; ;

8. Narayan V. S. Gopinath , (1982) Cr.LJ 1611

9. P.K Narayan V. State , (1995) 1SCC 142

10. ST (Delhi) V. V.C Shukla (1980) SC 1382

11. H.C Taneja V. State (1970) Cr.LJ 945 (Rajasthan)

12. Om Prakash V. State Of Haryana, 1979) Cr.LJ 857 (SC)

13. Jagat Narain V. State Of Rajasthan, (1979)Cr.LJ (NOC) 106 (Rajasthan)

14. Ashok V. State (1979)Cr.LJ (NOC) 95 (Goa)

15. Prabhakar M. Shetty V. State Of Maharashtra (1990) (1Bom)

16. SC Baheri V. State Of Bihar (1994) Cr.LJ 3271(SC)

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

18. State(C.B.I./S.I.T) V. Nalini (Rajiv Gandhi Murder Case)

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

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

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

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

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

BOOKS :
1. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed.(2011)

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

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3. Sarkar, Law of Evidence, (13thEd,1990)

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

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

6. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed.(2008)

7. I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed.2002)

8. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed.2006)

9. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed.2009)

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

11. Harris, Criminal Law, (22nd Ed.200

LEXICONS:

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

WEBSITES:
1. http://www.indiankanoon.org
2. http://www.wikipedia.com
3. http://www.webmd.com
4. http://www.drugs.com
5. http://www.rxwiki.com
6. http://www.legalservicesindia.com
7. http://www.ncbi.nlm.nih.gov
8. http://www.ritalinsideeffect.com
9. http://www.addict-help.com
10. http://www.lexhindustan.com
11. http://www.findlaw.com
12. http://www.judis.nic.in
13. http://www.manupatra.co.in

STATUTES:

1. The Code of Criminal Procedure, 1973 (Act 2 of1973)

2. The Indian Evidence Act, 1872 (Act 18 of1872)

3. The Indian Penal Code, 1860 (Act 45 of1860)

4. Indian Contract Act,1872 (Act No. 9 of 1872)

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STATEMENT OF JURISDICTION

The Hon’ble Session Court has jurisdiction to try the instant matter under Section 177 read

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

Section 177:

177. Ordinary place of inquiry and trial-

Every offence shall ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.

Read with Section 209:

209. Commitment of case to Court of Session when offence is triable exclusively by it-

When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively

by the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody

during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which

are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

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STATEMENT OF FACTS

1. Rani is married to Mr. Rajesh Singh . Rani is not able to conceive a child . On 15th

November , Rajesh met his dear friend Dr. Tapan, ,who is a medical professor and research

associate. They discussed about Rani’s problem . Dr. Tapan was doing an experiment on

“Sexually Arousing Drug”. Rajesh asked him to conduct this experiment on her in order

to solve her problem.

2. On 16th November, Rani met Dr. Tapan & he did not refer her to any medical practitioner.

On 17th November, she visited again & signed the consent agreement for treatment. She

visited thrice a week for a 3hr. sitting. She was given anesthesia so that she does not feel

pain in uterus and abdominal region . Rani’s body was showing negative effects like

headache, body ache, depression etc. which was told to Rajesh on 28th November. Rajesh

told him to continue the experiment as he has full faith in him. Dr. Tapan continued the

treatment for next two weeks despite the occurrence of major side effects.

3. On 12th December, Rani called her friend Deepali to pick her from lab. In lab she found

Rani and Dr. Tapan in compromising position. She took Rani home & told everything

what she saw. On 16th December, Rajesh returned from profitable business trip. Rani

discussed everything with Rajesh & Rajesh reacted very calmly & assured her that he

will talk to Dr. Tapan about this. Later, in evening Rani’s father died due to heart failure.

4. On 17th December, Rajesh met Dr. Tapan. They discussed about death of Rani’s father &

the entire incident that occurred in front of Deepali. Later on, Rajesh assured her wife

there were some misunderstanding only & Deepali is unnecessarily trying to befool you.

5. On 18th December, Rani got unconscious and fell down. Rajesh called Dr. Tapan. Dr.

Tapan & his nurse reached immediately. Dr. Tapan injected an insulin & she gained

consciousness after few minutes. Subsequently, Rajesh left for his business trip.

6. On 19thDecember, Deepali came to Rani’s house to wish her on her birthday but she found

her dead body on the floor. She immediately called police and lodged F.I.R.

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STATEMENT OF CHARGES

Rajesh Singh & Dr. Tapan Das has been charged under Section 302 read with Section 120B

the Eindian Penal Code, 1860 for the crime of Murder & Criminal Conspiracy .

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SUMMARY OF ARGUMENTS

ISSUE

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

Yes,Rajesh Singh & Dr. Tapan Das will be liable U/S 302/120B as

 Intention of both accused was to commit an offence.

 At every stage, it is clearly indicating that both were conspiring the offence .

 Treatment of Dr. Tapan is Void-ab-initio & also not fulfilled the basic condition of

trial(experiment)

 There’s an evidence in the statements of witnesses.

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ARGUMENTS ADVANCED
ISSUE

WHETHER RAJESH SINGH & DR. TAPAN DAS WILL BE GUILTY OF MURDER
& CRIMINAL CONSPIRACY?

It is humbly contended before this Hon’ble Court that Rajesh Singh & Dr. Tapan Das

(hereinafter to be referred to as the accused 1 &2 is guilty of the offences under Sec. 302/120B

of the Eindian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). In the matter at hand, it

has been rightfully alleged that the accused has committed murder in course of criminal

conspiracy. The matter of a murder will be dealt with in the present issue ,while the charge of

criminal conspiracy will be proved simultaneously.

Section 300 In The Indian Penal Code

Murder — Except in the cases hereinafter excepted, culpable homicide is murder, if the act by

which the death is caused is done with the intention of causing death, or—

(Secondly) — If it is done with the intention of causing such bodily injury as the offender knows

to be likely to cause the death of the person to whom the harm is caused, or—

(Thirdly) — If it is done with the intention of causing bodily injury to any person and the bodily

injury intended to be in-flicted is sufficient in the ordinary course of nature to cause death, or—

(Fourthly) — If the person committing the act knows that it is so imminently dangerous that it

must, in all probability, cause death or such bodily injury as is likely to cause death, and commits

such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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 (INTENTION) -

‘Murder—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by

which the death is caused is done with the intention of causing death. If it is done with the

intention of causing such bodily injury as the offender knows to be likely to cause the death of

the person to whom the harm is caused. If there is knowledge of likelihood of causing death

accused will be guilty of murder1.’

Sec. 300 of IPC is talking about the definition of murder & in this definition each and every clause

mainly focus on intention and bodily injury which is likely to cause death.Talking about intention

first . According to fact sheet , nowhere it can be concluded that there is malafide intention of

Rajesh & Dr. Tapan .Rani is an assistant managing director & Rajesh is also an independent

businessman & CEO of tech startup ‘challo-delhi.com’. Both were conscious about there carrer

,infact they decided not to have children. After 2 years Rajesh discovered that Rani is not able to

conceive child & Rajesh presupposed that may be it was because of her weight. He is a man of

self respect which can be seen in the facts when he suffered heavy loss, he didn’t took help from

his wife knowing his wife was the only daughter of one of the richest businessman of the city.

During this time Rajesh also suffers from depression but but also he was conscious about Rani

& relationship with her. That’s why he discussed this problem with his dear friend Dr. Tapan.

He is also a good friend of Rani .Dr. Tapan is well known medical proffessor and researcher in

well renowned –“Alpine Hospital & Institute of Medical Science ‘. Dr. Tapan told Rajesh that

he was researching on Sexually arousing drug which can be beneficial for Rani. To this Rajesh

showed full faith in him & ask him to try this experiment on Rani .

So , when Rani met Dr. Tapan ,he discussed about the possible cure for her problem and also the

future usage of certain drugs on her body. Dr. Tapan fulfilled all the legality that’s why he told

Rani to sign the consent agreement. He started the treatment with experiment by giving allopathic

1
Sheik Choollye v. R [(1865) 4 WR(Cr) 35]
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medicines and he used to call Rani thrice a week for 3 hrs sitting. Later, Rani’s body was showing

some negative impacts which has been discussed by Dr. Tapan to Rajesh and Rani. Still , Rajesh

asked Dr. Tapan to carry on experiment as he has full faith in him. So, nowhere at any stage Both

were having any malafide intention . Each and every step has been discussed by Dr. Tapan to

Rajesh and Rani because both were conscious about Rani’s health.

According to Post Mortem Report, there is nowhere mentioned about any bodily injury . At every

stage, treatment done with due care and guidance. So everything which has been given to Rani

was for her betterment. She was little bit mentally disturbed because of her problem. So, in short

she was not given any type of bodily injury neither mentaly nor physically .

So Dr. Tapan and Rajesh will not be liable u/s 302

There are some Rules and Regulation for doing clinical experiments. These are-

1. Like any research or commercial activity in India, clinical trials are also supposed to go through

a very lengthy procedure before they can be conducted. The clinical trials are put under

Schedule Y to the Drug and Cosmetics Rules of 1945, which were amended keeping in mind

the increasing number of foreign pharmaceutical companies who are using India as their

research base. Earlier Phase 2 trials were allowed to be conducted in India only if a Phase 3

study was going on somewhere else. Phase Apart from this, various professional guidelines has

been released. The Indian Council of Medical Research (ICMR) issued the Ethical Guidelines

for Biomedical Research on Human Subjects in 2000 and CDSCO released Indian Good

Clinical Practice (GCP) guidelines in 2001.

2. A Clinical Trial can only be initiated after obtaining written permission from institutional ethics

committee (IEC) and Drugs Controller General (I). The application utilizes form 44

accompanied by the requirement as per schedule Y, such as documents pertaining chemical,

pharmaceutical information, animal pharmacology, toxicology and clinical pharmacology data.

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3. Some other documents are also required to be submitted with the application such as trial

protocol, case report form, informed consent sample form and investigator’s undertaking as to

the liability. There are additional requirements for conducting trials on vulnerable and special

groups such as pregnant women and elderly patients. The protocol must be reviewed and

approved by an institutional ethics committee, at a minimum, seven members, including a

medical scientist, a clinician, a statistician, a legal expert, a social scientist and a common

person from the community.

4. If the applicant wishes to import the biological samples that have been developed as a result

of these trial, he needs a separate license called T-License. This license is valid for multiple

shipments for one year and issued simultaneously with that of the clinical trial approval. A

separate No Objection Certificate (NOC) through separate application is required for shipping

biological samples collected from the trial subjects out of India.

In a case 2, It was laid down that when a doctor is consulted by a patient, the doctor owes to

his patient certain duties, which are:

a) Duty to care in deciding whether to undertake the case,

b) Duty to care in deciding what treatment to give

c) Duty to care in the administration of that treatment

# CRIMINAL CONSPIARCY

120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause

to be done,—

(1) an illegal act, or

2
A.S. Mittal vs. State of U.P., 1989 AIR 1570, 1989 SCR (3) 241
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(2) an act which is not illegal by illegal means, such an agreement is designated a criminal

conspiracy: Provided that no agreement except an agreement to commit an offence shall

amount to a criminal conspiracy unless some act besides the agreement is done by one or

more parties to such agreement in pursuance thereof.

Explanation.—It is immaterial whether the illegal act is the ultimate object of such

agreement, or is merely incidental to that object.

AN ILLEGAL ACT

The mere agreement between two or more persons to do or causing any illegal act to be done,

or engaging in such an agreement constitutes an overt act (actus reus) 3. The word “Illegal”

acc. To sec. 43 of I.P.C., is applicable to everything which is an offence prohibited by law or

which furnishes ground for an action. The word “act” includes an illegal omission. The overt

acts (actus reus) necessary to be proved to establish conspiracy include acts

i. Signifying agreement4 ,

ii. Acts preparatory to the offence , and

iii. Acts constituting the offence itself.

The gist of the offence of conspiracy therefore lies in forming the scheme or agreement

between the parties, the external or overt act of the crime is concert by which mutual

consent to a common purpose is exchanged. It, therefore, suffices if the combination exists

and is unlawful5.

Since there is no illegal act commited by Dr. Tapan and Rajesh ,as told earlier & illegal

act is one of the moost important ingredient in section 120A, so , both were not iondulge

3
Shaw v. Director of Public Prosecutiom, (1961) 2 ALL ER 446 (HL)
4
Ram Narain Poply v. C.B.I. , (2003) 3SCC 641
5
Kailash Chand V. State of M.P., 1983 Jab LJ 666(MP).
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in any criminal conspiracy.

They both were applying mutual mind in the treatment and betterment of Rani.

Hence , Dr. Tapan & Rajesh will not be guilty u/s 302/120B.

#CRIMINAL CONSPIRACY IN REFERENCE TO COMMON DESIGN (WITH

RESPECT TO SEC. 10 OF INDIAN EVIDENCE ACT).

Section 10 in The Indian Evidence Act, 1872

Things said or done by conspirator in reference to common design.—Where there is

reasonable ground to believe that two or more persons have conspired together to commit

an offence or an actionable wrong, anything said, done or written by any one of such

persons in reference to their common intention, after the time when such intention was

first entertained by any one of them, is a relevant fact as against each of the persons

believed to so conspiring, as well for the purpose of proving the existence of the

conspiracy as for the purpose of showing that any such person was a party to it.

In order to prove a criminal conspiracy which is punishable u/s120B, there must be direct

or circumstantial evidence to show that there was an agreement between 2 or more person

to commit an offence. It is true that there must be a meeting of minds resulting in an

ultimate decision taken by the conspirators regarding the commission of an offence. In

most cases,It will be difficult to get direct evidence of an agreement to conspire but a

conspiracy can be inferred even from circumstances giving rise to a conclusive or

irresistiable inference of an agreement between 2 or more person to commit an offence .

6

6
ST (Delhi) V. V.C Shukla (1980) SC 1382 ; H.C Taneja V. State (1970)Cr.LJ 945 (Rajasthan) ; Om Prakash V.
State Of Haryana (1979) Cr.LJ 857 (SC) ; Jagat Narain V. State Of Rajasthan (1979)Cr.LJ (NOC) 106 (Rajasthan)
; Ashok V. State (1979)Cr.LJ (NOC) 95 (Goa) ; Prabhakar M. Shetty V. State Of Maharashtra (1990) (1Bom) ; SC
Baheri V. State Of Bihar (1994) Cr.LJ 3271(SC)
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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon‘ble Court be pleased to:

1. Acquit Rajesh Singh & Dr. Tapan Das of the offence of committing murder with

criminal conspiracy under Sections 302/120B of the Eindian Penal Code, 1860.

AND/OR

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

All of which is most humbly and respectfully submitted

Place:Sehradun S/d

Date: May29,2017 COUNSEL FOR THEPROSECUTION

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