CODE: TC-51

5TH INDRAPRASTHA NATIONAL MOOT COURT COMPETITION, 2016

BEFORE
THE HONBLE SUPREME COURT OF INDIA

CRIMINAL APPEAL FILED UNDER ARTICLE136 OF THE CONSTITUTION OF

INDIA, 1950
STATE (NCT OF DELHI)
(APPELLANT)
V.

JEYSHA AND OTHERS

(RESPONDENT)

COUNSEL APPEARING ON BEHALF OF THE APPELLANT

MEMORIAL ON BEHALF OF THE APPELLANT

-Table of Contents -

- Appellant TABLE OF CONTENTS

TABLE OF CONTENTS..........................................................................................................I
LIST OF ABBREVIATION...................................................................................................II
INDEX OF AUTHORITIES.................................................................................................III
STATEMENT OF JURISDICTION......................................................................................V
STATEMENT OF FACTS.....................................................................................................VI
THE STATEMENT OF ISSUES..........................................................................................IX
SUMMARY OF ARGUMENTS.............................................................................................X
ARGUMENTS ADVANCED...................................................................................................1
1. THAT THE CRIMINAL APPEAL BY SPECIAL LEAVE PETITION IS
MAINTAINABLE BEFORE THIS HONBLE COURT.......................................................1
2. THAT THE STATEMENT OF SH. BALLAN IS CREDIBLE AND THE GUILT OF
THE RESPONDENTS WAS ESTABLISHED BY THE APPELLANT-PROSECUTION
BEYOND ALL THE REASONABLE DOUBTS BASED ON CLINCHING EVIDENCES
TO HOLD ACCUSED PERSONS GUILTY TO THE OFFENCE AND THEIR
ACQUITTAL RESULTED IN GRAVE MISCARRIAGE OF JUSTICE..............................2
2.1.Ballan is a Natural Witness........................................................................................2
2.2 That even if he is proven to be an interested witness his testimony is not to be
discarded out rightly:..........................................................................................................4
2.3 That the statement of star witness Sh. Ballan is credible:............................................4
2.4 That respondents had evil intention thus they had motive to commit crime:............10
2.5 That the subsequent conduct of the respondents after the commission of crime can be
used against them:............................................................................................................10
2.6 That in criminal justice system we have to ensure a fair trial where the accused and
the prosecution both get a fair deal and the guilty man does not escape:........................12
2.7 That the high court has failed to take notice of the entire facts of the case:..............12
2.8. That examination of the evidence ought to have been done carefully by the High
Court and cogent and convincing reasons have to be given by the court before terming
Ballans statement unacceptable and interfering with the conviction:.........................13
3. THAT THE RESPONDENTS BE GIVEN CAPITAL PUNISHMENT..........................14
3.1 There was mensrea and the injury was sufficient to cause death:..............................14
3.2. A sentence of death is justified in the present case...................................................15
1

-Table of Contents -

- Appellant -

4. THE COMPENSATION AMOUNT AWARDED BY THE TRIAL COURT UNDER

SECTION 357A OF CR.P.C., 1973, IS NOT ADEQUATE HENCE THE SAME HAS TO
BE ENHANCED..................................................................................................................19
PRAYER..............................................................................................................................XIII

-List of Abbrevation -

- Appellant LIST OF ABBREVIATION

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30

&And
/ S.
Section

Paragraph
A.I.R.
All India Reporter
A.P.
Andhra Pradesh
A.S.I.
Assistant Sub-Inspector
Anr.
Another
Art.
Article
Cr.L.J.
Criminal Law Journal
Cr.P.C.
Criminal Procedure Code
Ed.
Edition
FIR
First Information Report
Honble
Honble
i.e.
That is
I.E.A.
Indian Evidence Act
I.O.
Investigating Officer
NCT National Capital Territory
Ors.
Others
r/wRead With.
S.C.
Supreme Court
S.C.C.
Supreme Court Cases
S.H.O.
Station House Officer
S/o
Son of
SCR
Supreme Court Reporter
U.K.
United Kingdom
U.P.
Uttar Pradesh
UoI Union of India
v.
Versus
viz.
Namely
Vol.
Volume.

-Index of Authorities-

- AppellantsINDEX OF AUTHORITIES
CASES

State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86......................................................1

Anil Phukan v. State of Assam, (1993 ) 3 SCC 282....................................................................3
Bachan Singh v. State of Punjab, (1980) 2 SCC 684...............................................................17
Bavisetti Kameshwara Rao @ Babai v. State of Andhra Pradesh, AIR 2008 SC 1854.....13, 14
Chaudhari Ramjibhai Narsanghbai v. State of Gujarat, AIR 2004 SC 313..............................3
Devender Pal Singh v. State, NCT of Delhi and Another, AIR 2003 SC 886..........................17
DhananjoyChatterjee v. State of W.B., (1994) 2 SCC 220.......................................................16
Dharamveer v. State of Uttar Pradesh, AIR 2010 SC 1378......................................................8
Dharnidhar v. State of U.P., (2010) 7 SCC 759.........................................................................9
Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270...........................................................8
Harbans Kaur v. State of Haryana, (2005) 9 SCC 195..............................................................2
Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56...................................17
Harpal Singh v. Devinder Singh, (1997) 6 SCC 660.................................................................7
Jagmohan Singh v. State of U.P, (1973) 1 SCC 20..................................................................15
Jai Kumar v. State of M.P., (1999) 5 SCC 1.............................................................................16
Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199.................................................................6
Jayaraj v. State of Tamil Nadu, (1976 ) 2 SCC 788...............................................................5, 6
Kehar Singh v. State (Delhi Admin.), (1988) 3 SCC 609.........................................................17
Khairdi Khan v. Crown, (1951) 52 Cri LJ 1172.......................................................................15
Labh Singh v. State of Punjab, (1976) 1 SCC 181.....................................................................6
Macchi Singh v. State of Punjab, (1983) 3 SCC 470...............................................................17
Machhi Singh v. State of Punjab, AIR 1983 SC 957................................................................18
Nankaunoo v. State of U.P., (2016) 3 SCC 317..........................................................................8
Prem Kumar v. State of Bihar, (1995) 3 SCC 228...................................................................10
Raj Narain Singhv.State of U.P. and Ors., (2009) 10 SCC 362.................................................8
Rajasthan v. Chandagiram, (2014) 4 SCC 596........................................................................12
Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257..........................................................11
Sahabuddin v. State of Assam, (2012) 13 SCC 213..............................................................2, 11
Sardul Singh v. State of Haryana, AIR 2002 SC 3462...............................................................4
Sardul Singh v. State of Haryana, AIR 2002 SC 3462..............................................................1
Sarwan Singh and Ors.v.State of Punjab, (1976) 4 SCC 369....................................................4
3

-Index of Authorities-

- Appellants-

Sarwan Singh v. State of Punjab, (1976) 4 SCC 369.................................................................4

Alamgir v. State(NCT, Delhi), (2003) 1 SCC 21........................................................................5
Shankar Kishanrao Khade v. State of Maharshtra, (2013) 5 SCC 546...................................16
Shriram v State of Madhya Pradesh, AIR 2004 SC 491............................................................3
Shyamal Ghosh v. State of West Bangal, 2012, Cr LJ 3837 (SC).......................................1, 12
State of Rajasthan v. Islam, (2011) 6 SCC 343,.........................................................................1
State of Rajasthan v. Kalki and Anr., AIR1981SC1390.............................................................2
State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86......................................................1
State of U.P. v. Harihar Bux Singh, (1975) 3 SCC 167..............................................................1
State of U.P. v. Manohar Lal, AIR 1981 SC 2073......................................................................1
State v. Jawan Singh, 1971 SCC OnLine Raj 71.....................................................................10
State v. Shankar Sakharam Jadhav and another, AIR 1957 Bom 226.....................................15
Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422..............................................................9
Surendra Pratap Chauhan v. Ram Naik, AIR 2001 SC 164......................................................8
Suresh v. State of Maharashtra, AIR 1975 SC 783..................................................................17
Takdir Samsuddin Sheikh v. State of Gujarat, (2011) 10 SCC 158............................................5
Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145...............................7, 10
Tapubha Bhagvanji v. State of Gujarat, AIR 2002 SC 2794......................................................3
Ugar Ahir v. State of Bihar,AIR 1965 SC 277.........................................................................12
Swamy Shraddananda v. State of Karnataka,AIR 2007 SC 2531...........................................16
Vadivelu Thevar v. State of Madras, 1957 Cri LJ 1000.............................................................7
BOOKS
5 Durga Das Basus Commentary on the Constitution of India (8th ed. Lexis Nexis BW
Nagpur 2009).........................................................................................................................1
1 Chief Justice Monir,Law of Evidence,(16th ed. Universal Law Publishing Co.2013).............4
3 Manohar and Chitaley, The Indian Penal Code, ( 4th ed. All India Reporter Pvt. Ltd. Nagpur
2006)..............................................................................................................................15, 17
R.V. Kelkar, Criminal Procedure 639 (6th ed. Eastern Book Company 2014).........................18
4 Sohonis, Code of Criminal Procedure, 1972, (21st ed. Lexis Nexis 2015)..........................19
STATUTES
Code of Criminal Procedure, 1973.......................................................................................9, 11
Indian Evidence Act, 1872............................................................................................1,3, 7, 11
4

-Statement of Jurisdiction-

-AppellantSTATEMENT OF JURISDICTION

STATE (NCT OF DELHI)

Petitioner
V.

JAYESHA AND OTHERS

Respondent

The Petitioners humbly submit this memorandum for the Special Leave Petition filed before
this Honble Court, by invoking the Appellate Jurisdiction of this Honble Court specified
under Article 136 of the Constitution of India.
This memorandum sets forth the facts, contentions and arguments for the petitioners in
the given case.

IN THE SUPREME COURT OF INDIA

THE APPELLANT HUMBLY AND RESPECTFULLY SUBMITS TO THE
JURISDICTION OF THIS HONBLE COUR

-Statement of Facts-

-AppellantSTATEMENT OF FACTS
I

That on 24 January 2016, at around 12:35am, A.S.I Harpal Singh got an information from a
constable over telephone at 3D Hospital that Sh. Mallan brother of victim, named Lallan
Prasad, aged 21 years, admitted him in a critical condition. On receiving the information,
A.S.I Harpal Singh and a constable on duty immediately rushed to the 3D Hospital where
they found that Sh. Lallan was admitted by his brother Sh. Mallan with multiple stab wounds
on both arms, chest wall, scalp and right side of the gluteal region. The doctor suggested that
the patient is unfit for statement and declared that the injuries were perpetrated with a sharp
edged weapon. In these conditions Sh. Ballan, another brother of the victim Lallan Prasad,
gave his statement in 3D Hospital that they were having a property dispute casewith their
maternal uncle and his sons since 2003. The decision of the case was held in their favour in
August, 2015. Since then their cousins were not happy and developed inimical relations with
them.
II
According to statement of Sh. Ballan, on 23rd Janaury 2016, at around 11:30 pm, after having
dinner, he and his deceased brother Lallan went for a walk near Budh Bazaar Road. Lallan
was stepping faster and when he was 50-60 ahead of Ballan, one of their cousins named
Jeysha and his friend Tashi started fighting with him. In the meantime, Jeyshas four brothers
named Kishan, Bishaan, Disham and Geysha ran towards the fighting spot and got involved
in the fight. They caught Lallan and one of them named Geysha gave instructions to others by
shouting IskaKaamKhatmKar do. As a consequence, the rest of the brothers and Tashi
dragged Lallan into a small gali andJeysha started stabbing Lallan. When Ballan shouted
loudly in the market, they all ranaway immediately except Tashi who was caught by the
public. Lallan was carried to the 3DHospital through an auto-rickshaw by Ballan. Someone
called the police while seeing Ballan shouting in the street.
III
Sh. Ballan was made star witness of the case, A.S.I. Harpal Singh and his team took him to
the crime spot where they found lot of blood strewed over the road and Tashi, who was
caught by the public, was arrested by A.S.I. Harpal Singh and his team with few superficial
injuries inflicted on his back. After this investigation, A.S.I. Harpal Singh and his team came
6

-Statement of Facts-

-Appellant-

back to Police Station, Sonia Vihar, and gave the report to the S.H.O, P.S. Sonia Vihar.
Thereafter the F.I.R was recorded on the basis of the statement provided by Ballan and
observation of the entire crime spot at around 3:15 am and charged all the respondentaccused persons under Section 307/34 of the IPC. On 24th January 2016, at around 8:15 am
Sh. Lallan who was admitted in a very critical condition succumbed to his injuries. The
S.H.O as I.O. of the case immediately changing the previous charges registered the murder
case under Sections 302 read with section 34 of the Indian Penal Code. On 30th January
2016, at around 81:15 pm, the police team arrested the rest of the co-accused persons. They
interrogated Jeysha and claim to find that while running away from the crime scene, Jeysha
deliberately took the knife and threw it into the river Ghaggar near Ambala. Then the I.O.
added one more Section 201 of the IPC to the existing criminal case. All the respondnetaccused persons were charged under Sections 302/201/34 of the IPC.
IV
That prosecution examined the material witness PW-1 Ballan deposed the same version of
statement as he delivered earlier in the 3D Hospital to the police officers. PW-2 Mallan
deposed that I was at my friends house which was near the 3D Hospital. As soon as I got
the information, I immediately rushed to the 3D Hospital and saw my brother, Lallan, who
was in the hands of my brother, Ballan. When Ballan saw me, he asked me to take care of
Lallan and then he went to the nearby PCO and started calling our parents and other relatives
for further assistance.
PW-3 Doctor Kamini, a chief medical officer, deposed that the victim is examined and the
injuries are sufficient to cause death of the victim. She presented the victims Schematic
Injury Diagram Sheet along with the Medico Legal Report-02 (i.e., Post Mortem Report)
according to which a total number of 21 injuries were suffered by the deceased on various
parts of body, injuries were lethal to the extent that many of them were piercing internal
organs of the body viz. large intestine, left and right kidneys, liver etc..
PW-4 Investigation Officer deposed that we met the victim, Lallan, in a very critical
condition. The doctor restricted us from taking any statement from the victim because of his
serious condition. We had arrested all the accused persons. One of the accused Tashi was
caught by the public and arrested immediately. Other co-accused persons were arrested after
few days i.e., on 30th January, 2016 at around 8:15pm. We failed to collect any witness from
the public regarding the incident i.e., the crime scene.

-Statement of Facts-

-AppellantV

That all the statements of the accused persons under Section 313 Cr.P.C. were taken wherein
they stated that they were being falsely implicated due to the previous enmity with the
complainant and his family members and they knew nothing about this event. That Sessions
Court convicted all the accused persons under Sec. 302 r/w Sec. 201 and 34 IPC, and
sentenced each of them to life imprisonment. They were also asked to pay compensation of
Rupees Two Lakhs to the parents of Lallan immediately. Each of them was awarded rigorous
imprisonment for 2 years under Section 201 IPC. Both the sentences were to run
concurrently.
Then accused persons aggrieved by the aforesaid judgment, appealed before the Honble
High Court seeking acquittal. Whereas, State filed an appeal for demanding the death
sentence for the accused persons for such a heinous crime and for the enhancement of the
amount of compensation taking into account the expenditure incurred in upbringing the dead
victim Lallan Prasad by his old parents. The High court adjudicated in the favour of the
accused persons by acquitting them from all the charges under Sec.302 r/w Sec. 201 and 34
IPC, and dismissed the appeal of the State, the reason being bereft of any substance and
rejected the testimony of Ballan considering it fabricated and concocted statement of an
interested party.
VI
Aggrieved by the said judgment of the Honble High Court acquitting all the accused
persons, the State filed an appeal before the Honble Supreme Court of India on the ground
that Honble High Court has failed to take notice of the entire facts of the case as all the
accused persons had a motive to harm the Prasad Family. The State also appealed for
considering the offence as heinous crime and to award death sentence to all the accused
persons under Sec 302 r/w Sec. 201 and 34 IPC and also to enhance the compensation
awarded by the Sessions Court to Rupees Ten Lakhs under Sec 357A Cr.P.C..

-Statement of Issues- -Appellant

STATEMENT OF ISSUES

I. THAT

THE

CRIMINAL

APPEAL

BY

SPECIAL

LEAVE

PETITION

IS

MAINTAINABLE BEFORE THIS HONBLE COURT.

II. THAT THE STATEMENT OF SH. BALLAN IS CREDIBLE AND THE GUILT OF THE
RESPONDENTS WAS ESTABLISHED BY THE APPELLANT-PROSECUTION
BEYOND

ALL

THE

REASONABLE

DOUBTS

BASED

ON

CLINCHING

EVIDENCES TO HOLD ACCUSED PERSONS GUILTY TO THE OFFENCE AND

THEIR ACQUITTAL RESULTED IN GRAVE MISCARRIAGE OF JUSTICE.
III. THAT THE RESPONDENTS BE GIVEN CAPITAL PUNISHMENT.
IV. THE COMPENSATION AMOUNT AWARDED BY THE TRIAL COURT UNDER
SECTION 357A OF Cr.P.C., 1973, IS NOT ADEQUATE HENCE THE SAME HAS TO
BE ENHANCED.

-Summary of Arguments-

-Appellant

SUMMARY OF ARGUMENTS

1.That the criminal appeal by special leave petition is maintainable before this
Honble court:

a) Interference with the order ofHonble Delhi High Court acquitting all accused-respondent
under Article 136 of the Constitution is necessary because the same has resulted in
resulted in grave miscarriage of justice.
b) Honble Delhi High Court has failed to take notice of the entire facts of the instant case.
c) The finding of the Honble High Court was not reasonable one when it termed Sh.
Ballans statement to be fabricated and concocted terming his testimony to be
unacceptable for his being interested witness despite interested witness being competent
witness to testify under section 118 of Indian Evidence Act, 1872.
d) There were clinching evidences towards the guilt of the accused-respondents but Honble
Delhi High Court had glaring infirmity in appraisal of evidences.
e) Court has to perform its basic duties viz. ensuring that no innocent man is punished and
also that a guilty man does not escape, thus it becomes important grant leave to appeal in
the instant case.

2. That the statement of sh. Ballan is credible and the guilt of the respondents was
established by the appellant-prosecution beyond all the reasonable doubts based on
clinching evidences to hold accused persons guilty to the offence and their acquittal
resulted in grave miscarriage of justice:

a) Ballan is a Natural Witness, his relationship with the deceased victim should not have
any bearing upon the testimony of an eye-witness; Sh. Ballan is not interested in securing
the conviction of the accused persons because there is no reason for him to falsely
implicate Jeysha and his brothers along with Tashi.
b) Even if Sh. Ballan is proven to be an interested witness his testimony is not to be
discarded out rightly because he had ring of truth his testimony, there was prompt lodging
of F.I.R., his testimony was consistent and corroborating with the medico legal report, all
these factors lend credence to his testimony.
c) There is no infirmity in the case of prosecution, facts like Sh. ballan being sole eye
witness to the incident, non- examination of other witnesses, alleged inimical relationship,
non-recovery of murder weapon will have no bearing upon the prosecutions case despite
10

-Summary of Arguments-

-Appellant-

their existence, the evidence on record bears out the case of the prosecution and the
evidence is of sterling quality.
d) Respondents had inimical relations with Lallan so it can be said that they had motive to
commit crime which is relevant under section 8 of I.E.A., 1872. Besides this the
subsequent conduct of the respondents after the commission of crime is alos to be used
against them when Jayesha and his brothers managed to disappear from the crime scene
and Tashi was caught, when Ballan raised alarm.
e) The HonbleHigh Court has failed to take notice of the entire facts of the case, cumulative
effect of all the circumstances has to be considered if we were to reach upon a rationale
conclusion.
f) TheHonble High Court has failed in its mandate to ensure a fair trial where the accused
and the prosecution both get a fair deal and the guilty man does not escape but here in the
instant case we see examination of the evidence was not done carefully and cogent and
convincing reasons were given by the court before terming Ballans statement
unacceptable and interfering with the conviction given by Trial Court.

3. That the respondents be given capital punishment:

a) There was mensreaand the injury was sufficient to cause death and was also inflicted in
furtherance of a common intention. Jeysha along with his four brothers and his friend
Tashi engaged into a fight with the deceased and further dragged him into a small gali and
started stabbing him which goes to show that there was indeed an intention to cause death
of the accused.
b) The injury so inflicted was sufficient to cause death of the deceased. The medico legal
report reveals that a total of 21 injuries were present on the victims body including four
deep wounds. All these facts show that the injury was sufficient in the ordinary course of
nature to cause of the accused.
c) This case calls for the imposition of extreme sentence of death to all of the accused
because of the extreme brutality involved in it and the cruelty with which the offence was
executed.The medico legal report also suggests that the offence was committed
outrageously and involved inhumane treatment and torture to the victim.
d) All of the evidences point towards the guilty intention of all of the accused and the
aggravating circumstances in the present case clearly outweigh the mitigating
circumstance hence justifying the need of awarding of death sentence.
e) The facts clearly depict the plight of the victim and the extreme brutality with which he
was murdered. A sentence of death will be proper where the case is one of cold blooded,
callous, and vindictive character or where the murder is committed for lust or greed.
11

-Summary of Arguments-

-Appellant-

Where the murder committed is cold blooded, gruesome and heinous, it is rarest of rare
case justifying extreme sentence of death.

4. The compensation amount awarded by the trial court under section 357A of
Cr.P.C., 1973, is not adequate hence the same has to be enhanced:

a) Sec. 357A of Cr.P.C., 1973, is meant to provide compensation to the victim or his
dependent, who have suffered loss or injury as a result of crime and who require
rehabilitation.
b) Since the rehabilitation is of paramount importance, state is bound to take adequate
compensatory measure irrespective of whether the respondents in the instant case are
guilty or not hence the Honble Supreme Court has to enhance the compensation amount
from Rs. 2,00,000 to Rs. 10,00,000.

12

-Arguments Advanced-

-Appellants

ARGUMENTS ADVANCED

1. THAT THE CRIMINAL APPEAL BY SPECIAL LEAVE PETITION IS

MAINTAINABLE BEFORE THIS HONBLE COURT.

It is submitted that the Honble Delhi High Court has clearly erred in reversing the order
of conviction recorded by the Trial Court which consequentlyresulted in grave
miscarriage of justice. The testimony of star witness Sh. Ballan is absolutely convincing
and is corroborative in every minute aspect of the occurrence. His version was natural and
there was nothing to suspect their version in narrating the occurrence. In the impugned
judgment the Honble Delhi High Court has failed to take notice of the entire facts as
opposed to this courts judgment in Shyamal Ghoshv. State of West Bengal 1, the guilt of
the accused-respondents is proven to be established by the appellant-prosecution beyond
all the reasonable doubts based on clinching evidences and their acquittal resulted in
grave miscarriage of justice. The finding of the Honble High Court was not reasonable
one2 and it is vitiated by some glaring infirmity in appraisal of evidences 3 when it found
Sh. Ballans statement to be fabricated and concocted terming his testimony to be
unacceptable for his being interested witness despite interested witness being competent
witness to testify under section 118 of Indian Evidence Act, 1872 4. The High Court did
not consider the case properly and, ordered acquittal on surmises and conjectures and not
in accordance with settled principle of law 5. It wont be wrong to say that High Court has
completely misdirected itself in reversing the order of conviction by the trial court
thereby adducing compelling and substantial reasons to this court to consider this appeal
against the order of acquittal.6

Ordinarily, in an acquittal this Court is slow to interfere while exercising power under
Article 136 of the Constitution but in accordance with this courts judgment in State of
U.P. v. Ashok Kumar Srivastava7, in the instant case too, we find that the approach of the

1(2012) Cr. L.J. 3837.

25 Durga Das BasusCommentary, Constitution of India, 5866, (8th ed. Lexis Nexis BW
Nagpur 2009).
3State of U.P. v. HariharBux Singh, (1975) 3 S.C.C.167, 14.
4Sardul Singh v. State of Haryana,A.I.R 2002 S.C. 3462;Shyamal Ghosh v. State of West
Bangal,(1976) 4 S.C.C. 369.
5State of U.P. v. ManoharLal, A.I.R. 1981 S.C. 2073.
6State of Rajasthan v. Islam, (2011) 6 S.C.C. 343, 16.
7(1992) 2 S.C.C. 86 , 12.
1

-Arguments Advanced-

-Appellants -

High Court has resulted in gross miscarriage of justice when despite the presence of
clinching evidences towards the guilt of the accused-respondents, they were set free
against the order of conviction by trial court. It is not possible for this Court to refuse to
interfere when a gruesome crime is committed which has resulted in the extinction of the
life of Lallan.Kindly grant leave to appeal so that the court can perform its basic duties
viz. ensuring that no innocent man is punished and also that a guilty man does not escape
thereby doing justice to all, the accused, the society and a fair chance to prove to the
prosecution.8

2. THAT THE STATEMENT OF SH. BALLAN IS CREDIBLE AND THE GUILT

OF THE RESPONDENTS WAS ESTABLISHED BY THE APPELLANTPROSECUTION BEYOND ALL THE REASONABLE DOUBTS BASED ON
CLINCHING EVIDENCES TO HOLD ACCUSED PERSONS GUILTY TO THE
OFFENCE AND THEIR ACQUITTAL RESULTED IN GRAVE MISCARRIAGE
OF JUSTICE.

2.1 Ballan is a Natural Witness:

It is submitted that Sh. Ballan S/o ShChander Prasad, brother of the deceased is the only
and most natural witness thus not an interested witness; he was the only person present
with the deceased at the time of the occurrence, and the only person who witnessed the
attack on deceased victim Lallan. He cannot be called an 'interested' witness though he is
related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called
'interested' only when he or she derives some benefit from the result of litigation; in the
decree in a civil case, or in seeing an accused person punished. A witness who is a natural
one and is the only possible eye witness in the circumstances of a case cannot be said to
be 'interested'.9

Recently, in HarbansKaurv. State of Haryana10 the conviction of the accused was

challenged in this Court, inter alia, on the ground that the prosecution version was based
on testimony of relatives and hence it did not inspire confidence. This court denying this
contention said that there is no proposition in law that relatives are to be treated as
untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is

8Sahabuddin v. State of Assam, (2012) 13 S.C.C. 213.

9State of Rajasthan v. Kalki and Anr., A.I.R. 1981S.C. 1390; 5.
10(2005) Cri.L.J.2199: (2005) 9 S.C.C. 195.
2

-Arguments Advanced-

-Appellants -

raised to show that the witnesses had reason to shield actual culprit and falsely implicate
the accused.
2.1.1 Relationship with the deceased victim should not have any bearing upon the
testimony of an eye-witness:

It is humbly submitted that Sh. Ballans relationship with the deceased victim should not
have any bearing upon his testimony. Mere relationship with the deceased is no ground
to discard his testimony, if it is otherwise found to be reliable and trustworthy said this
court in Anil Phukanv.State of Assam11and it further observed that in the normal course
of events, a close relation would be the last person to spare the real assailant of his uncle
and implicate a false person12.

The relationship of eye-witness with the family of the deceased does not render per se his
evidence suspect. In such case the court has to analyse the evidence carefully with deeper
scrutiny to find out whether the evidence suffers from unreality or infirmity in law.13

In ChaudhariRamjibhaiNarsanghbaiv. State of Gujarat14, it has been held that even if a

witness is related to the deceased, there is no reason to discard his evidence if he is
reliable and trustworthy. Relationship is not a factor to affect credibility of a witness. It is
more after than not that a relation would not conceal actual culprit and make allegations
against an innocent person. Foundation has to be laid if plea of false implication is made.

2.1.2 Ballan is not interested in securing the conviction of the accused persons:

It is to be noted that Sh. Ballan and his brothers were having a property dispute casewith
their maternal uncle and his sons i.e. Jeysha, Kishan, Bhishaan, Disham and Geysha since
2003. The decision of the case had already been held in Ballan and his brothers favor in
August, 2015. Since then it is the cousins of Ballan who were not happy and they
consequently developed inimical relations with Ballan and his brother 15 and there is no
reason for Sh. Ballan to falsely implicate Jeysha and his brothers Kishan, Bishaan,
Disham and Geysha in fact Sh. Ballan has no business to deal with Tashi.

11(1993 )3S.C.C. 282, 4.

12Id.
13Shriram v. State of Madhya Pradesh, AIR 2004 SC 491.
14A.I.R. 2004 S.C. 313.
15Moot Problem 3.
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In this regard reference can be made to TapubhaBhagvanjiv. State of Gujarat16 where this
court held that when a witness is alleged to be interested are examined and crossexamined, and there is no reason to show for them to falsely implicate the accused, their
depositions are to be accepted.

2.2 That even if he is proven to be an interested witness his testimony is not to be

discarded out rightly:

It is submitted that the competency of a witness to testify has been contained in Section
118 of Indian Evidence Act, 1872 and it is settled position of law that testimony of an
interested witness is acceptable. In Sardul Singh v. State of Haryana17, it has been held
that evidence of interested witnesses should be scrutinized more carefully to find whether
it has a ring of truth and if found acceptable and seem to inspire confidence too, in the
mind of the court, the same cannot be discharged totally merely on account of certain
veracious or infirmities pointed or additions and embellishments noticed unless they are
of such a nature as to undermine the substratum of the evidence and found to be tainted to
the case. (if judge raises objection that there were discrepancies)

In Sarwan Singh v. State of Punjab18, the Hon'ble Justice S. MurtzaFazal Ali, as His
Lordship then was, speaking for a three Judges Bench of the Hon'ble Supreme Court,
observed that even though an eyewitness might have belong to the group of the deceased
and that witness came from one particular group was sufficient to show the interested
nature of evidence. But it was not the law that the evidence of an interested witness
should be equated with that of tainted evidence or that of an approver so as to require
corroboration as a matter of necessity. All that the Courts required as a rule of prudence,
not as a rule of law, was that the evidence of such witness should be scrutinized with a
little care.

It was further observed in the above decision that there might be circumstances where
only interested evidence might be available and no other, e.g. when an occurrence took
place in absence of no other witness, but once such witness was scrutinized with a little

16 A.I.R. 2002 S.C. 2794: (2002) 6 S.C.C. 530.

17A.I.R. 2002 S.C. 3462.
18(1976) 4 S.C.C .369.
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care and the Court was satisfied that the evidence of the interested witness have a ring of
truth such evidence could be relied upon even without corroboration.19
2.3 That the statement of star witness Sh. Ballan is credible:

Although there is no statutory provision which prescribe methods to gauge the credibility
of an eye-witness, reference can be made to various case laws before this court to get the
idea as to how this court has dealt with the issue of credibility in past. According to Chief
JusticeMonir the credit to be given to the statement of witness is a matter not regulated by
the rules of procedure. In assessing the credibility of any witness the main considerations
are (1) his integrity, (2) his ability, and consistency with each other, the conformity of his
testimony with FIR, medical, consistent statement and other collateral circumstance.20

It was decided by this court in its decision of Alamgir v. State(NCT, Delhi)21, that
reliability of a witness could not be questioned on the ground that he was an interested
witness in the event the evidence was otherwise acceptable. The test of creditworthiness
or acceptability, according to this court, ought to be the guiding factor and if so,
question of raising an eye-brow on the reliability of witness being an interested witness
would be futile, in the event the evidence is otherwise acceptable, there ought not to be
any hindrance in the matter of prosecutor's success. The evidence must inspire confidence
and in the event of unshaken credibility, there is no justifiable reason to reject the same. It
is on this score the issue of interested witness thus stands negated.22

2.3.1 The following elements lend credence to the appellant-prosecutions story:

A. FIR was lodged promptly:

FIR is lodged promptly then according to this court there remains no time for any kind of
manipulation.23The same has been done in the instant case FIR was recorded on the basis
of the statement given by Ballan in 3D Hospital the incident took place at around 11:30
pm and at around 12:35am, A.S.I Harpal Singh got an information from constable Dinesh
(ballet No.1516/E) over telephone at 3D Hospital that Sh. Mallan brother of victim,

19Sarwan Singh and Ors.v.State of Punjab, (1976) 4 S.C.C. 369, 10.

201 Chief Justice Monir,Law of Evidence, 102 (16th ed. Universal Law Publishing Co. 2013).
212003 S.C.C. (Cri) 165: (2003) 1 S.C.C. 21.
22Id 13.
23TakdirSamsuddin Sheikh v. State of Gujarat, (2011) 10 S.C.C. 158, 16.
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named Lallan Prasad. Then A.S.I Harpal Singh and Constable Bijender (ballet
No.1772/E) immediately rushed to the hospital wherein they found Sh. Lallan with
multiple stab wounds.

There was consistency in Sh. Ballans statement Tashi was caught by the public, his
mentioning about injuries suffered by stabbing andthe doctor suggest injuries were
perpetrated with a sharp edged weapon, ASI Harpal Singh and his team also found at
thecrime spot lot of blood strewed. Ballan further deposed the same version of statement
as he delivered earlier in the 3D Hospital to the police officers. All these facts furnish
valuable corroboration. So when the prosecution is able to fully corroborate the incident
as recorded in the FIR, the judgment under appeal cannot be interfered with.

This court in Jayaraj v. State of Tamil Nadu24 said when the F.I.R. was lodged almost
spontaneously. The informant had no time to concoct a false story. The F.I.R. furnished
valuable corroboration. The relevant portion of the judgment was:

22. The direct evidence of the eye-witnesses received assurance from the medical
testimony regarding the nature of the stabbing weapon. The F.I.R. was lodged almost
spontaneously within 20 minutes of the occurrence. The informant had no time to concoct
a false story. The F.I.R. furnished valuable corroboration.

B. There was consistency in Sh. Bhallans testimony:

Since Sh. Bhallan in the instant case as PW-1 has deposed the same version of statement
as he delivered earlier in the 3D Hospital, there can be said to have consistency in his
testimony. (Examination in chief and cross examination) In Jayabalanv. UT of
Pondicherry25, this court held that the court must be cautious in appreciating and
accepting the evidence given by the interested witnesses but the court must not be
suspicious of such evidence. The primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be ignored or thrown out solely because it
comes from the mouth of a person who is closely related to the victim.

InJayarajv.State of Tamil Nadu26 the circumstances that the victims was removed to the
hospital immediately where they were declared brought dead, post-mortem examination

24 (1976 )2S.C.C. 788.

25Jayabalan v. U.T. of Pondicherry, (2010) 1 S.C.C. 199, 23.
26 (1976 )2S.C.C. 788.
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was being conducted within one and half hours of the occurrence and first information
report being recorded with utmost expedition gone to show that PW.2 who was solitary
eye witness, was happened to be consistent (now relate with the facts of the instant
case) and his presence at the place of occurrence on the fateful night was not doubted,
was held to be a quite reliable witness. And his further being interested witness, did not
caste its effect on acceptability of his testimony. From these facts, thus the prosecution in
this case succeeded in proving its case beyond reasonable doubts and the High Court was
quite justified in upholding conviction of the appellant.

C. The medico legal report corroborates the ocular account given by Sh. Ballan:

InLabh Singh v. State of Punjab27, the medical evidence corroborated the ocular account
given by prosecution witness in regard to the nature of the weapons used by the
appellants in inflicting injuries on the deceased persons.28 In the instant case too similar to
the facts of the above mentioned case medico legal report prepared by Dr.Kamini PW-3
tenders corroboration to the ocular account of Sh. Ballan, whereby Sh. Ballan discloses in
his statement stab wounds being suffered by the deceased Mallan and in the medico legal
report mentioning of sharp weapon being used and multiple number of stab wounds
inflicted throughout the body.

2.3.2There is no infirmity in the case of prosecution, the evidences available on record are
sufficient enough to prove the guilt of accused-respondent: (raise only those infirmity
which have been dealt with in opponents memo)

It is submitted that facts like Sh. Ballan being sole eye witness to the incident, nonexamination of other witnesses, alleged inimical relationship, non-recovery of murder
weapon will have no bearing upon the prosecutions case, because:

A. Single testimony acceptable hence respondent should not be allowed to put premium
on non-examination of witness from the public regarding the incident:

In VadiveluThevarv. State of Madras29 this court said we have no hesitation in holding

that the contention that in a murder case, the court should insist upon plurality of

27(1976) 1 S.C.C. 181.

28Id. 37.
29(1957) Cri.L.J.1000.
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witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, 1872 has
categorically laid it down that "no particular number of witnesses shall in any case be
required for the proof of any fact." The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons, that it shall not be necessary for
proof or disproof of a fact, to call any particular number of witnesses.

B. Non examination of other witness:

Regarding non-examination of more than one eyewitnesses, the observation made by the
Hon'ble Supreme Court in Harpal Singhv.Devinder Singh30 said that unless there are other
circumstances also to facilitate the drawing of an adverse inference, it should not be a
mechanical process to draw the adverse inference merely on the strength of nonexamination of a witness even if it is material witness.31

Section 134 of the Indian Evidence Act, 1872 provides that no particular number of
witnesses is required for proof of any fact. It is trite law that it is not the number of
witnesses but it is the quality of evidence which is required to be taken note of by the
courts for ascertaining the truth of the allegations made against the accused32.

This

court

in

TakhajiHirajiv.ThakoreKubersingChamansing33said,

if

already

overwhelming evidence is available and examination of other witnesses would only be a

repetition or duplication of the evidence already adduced, non-examination of such other
witnesses may not be material. In such a case the court ought to scrutinise the worth of
the evidence adduced.

Also, we cannot lose sight of the fact that ghastly acts, of the nature and gravity as the
present one, when committed in a public place may very well create a sense of fear and
shock in the minds of the witnesses and thus prevent them from coming forward and
deposing against the perpetrators of the crime.34

C. Allegation of enmity between the family of Ballan and his cousin Jayesha cannot have
any bearing upon the instant case:
30(1997) 6 S.C.C. 660.
31Id, 24.
32 Id. 20
33(2001) 6 S.C.C. 145: 2001 S.C.C. (Cri) 1070 at page 155, 19.
34Raj Narain Singh v.State of U.P. and Ors., (2009)10S.C.C. 362: (2009) 14S.C.R. 755, 21.
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It is submitted that the evidence of Sh. Ballan cannot be rejected only the ground that
enmity exists between the parties. In Dharamveerv. State of Uttar Pradesh35 eye-witness
were inimical to the accused, but they, though present on the scene of occurrence, were
spared. When the accused allegedly fired the shots at the deceased, the eye-witnesses
were few steps behind the deceased. The fact that the witnesses did not suffer any injury
does not make their evidence untrustworthy. (use only when such contention is to be
given by the opponent)

In SurendraPratapChauhanv. Ram Naik36 the Supreme Court has held that though the
strained relations between the complainant and the accused led to groupism yet the
evidence of the eye-witnesses cannot be discarded, but it needs to be scrutinized with
caution in order to eliminate the possibility of false implication.

In Dinesh Kumar v. State of Rajasthan37this court held that when the eyewitnesses are
stated to be interested and inimically disposed towards the accused, it has to be noted that
it would not be proper to conclude that they would shield the real culprit and rope in
innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically.
The court would be required to analyze the evidence of related witnesses and those
witnesses who are inimically disposed towards the accused. But if after careful analysis
and scrutiny of their evidence, the version given by the witnesses appears to be clear,
cogent and credible, there is no reason to discard the same. Conviction can be made on
the basis of such evidence.

D. Non recovery of murder weapon:

It is further submitted that the testimony of Sh. Ballan is unimpeachable which is amply
corroborated by the medical evidence reading this in the lights of the facts of the instant
case, non-recovery of murder weapon does not materially affect the case of the
prosecution.

In this regard reference can be made to Nankaunoov. State of

U.P.,38where the learned counsel for the appellant contended that the courts below failed
to take note of the fact that the alleged weapon country-made pistol was never
recovered by the investigating officer and in the absence of any clear connection between
35A.I.R. 2010 S.C. 1378, .20 to 23.
36A.I.R. 2001 S.C. 164.
37(2008) 8 S.C.C. 270: (2008) 3 S.C.C. (Cri) 472 at page 273, 12.
38(2016) 3 S.C.C. 317, 9.
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the weapon used for crime and ballistic report and resultant injury, the prosecution cannot
be said to have established the guilt of the appellant. But according to this court, in the
light of unimpeachable oral evidence which is amply corroborated by the medical
evidence, non-recovery of country-made pistol does not materially affect the case of the
prosecution. In a case of this nature, any omission on the part of the investigating officer
cannot go against the prosecution case. Story of the prosecution is to be examined dehors
such omission by the investigating agency. Otherwise, it would shake the confidence of
the people not merely in the law enforcing agency but also in the administration of
justice.

Thus lapses such as failure to produce murder weapon and non-examination of other
witnesses wont dislodge the substratum of the prosecutions case and hence accusedrespondent cannot put premium on the so-called depreciable conduct of the respondents39.

InSunil Kunduv. State of Jharkhand,40this Court has laid down that the lapses or
irregularities in the investigation could be ignored subject to a rider. They can be ignored
only if despite their existence, the evidence on record bears out the case of the
prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go
to the root of the matter, if they do not dislodge the substratum of the prosecution case,
they can be ignored.41

2.4 That respondents had evil intention thus they had motive to commit crime:

It is submitted that PW-1 Ballans testimony suggests that his cousins developed inimical
relations with him and his brother after the property dispute case was decided in favour of
the former.42 And the statements of the accused persons under Section 313 Cr.P.C
mentioned of the existence of enmity with Ballan and his family has been accepted by
them. It is a settled principle of law that the statement made by the accused under Section
313 of the Cr.P.C. can be used by the Court to the extent that it is in line with the case of
the prosecution.43 Thus the existence of evil intent or motive to harm Lallan and his
family by the accused-respondents cannot be disputed. Though Proof of the existence of a
motive is not necessary for a conviction of any offence but where the motive is proved it

39Sunil Kundu v. State of Jharkhand, (2013) 4 S.C.C. 422, 29.

40(2013) 4 S.C.C. 422: (2013) 2 S.C.C. (Cri) 427.
41Id, Page 434, 29.
42 3 of the moot problem.
43Dharnidhar v. State of U.P., (2010) 7 S.C.C. 759 28.
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is evidence of the evil intent and is also relevant to show that the person had the motive to
commit actually committed it, accepting the fact that such evidence would not ordinarily
be sufficient. Under section 8 of Indian Evidence Act any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue or relevant fact.44 (Deal in detail)

2.5 That the subsequent conduct of the respondents after the commission of crime
can be used against them: (add here tashis being caught part of the same
transaction)

Disappearance of the accused or attempt to flee from the crime scene after the
commission of the alleged crime is a circumstance, which, in the absence of any plausible
explanation, may go against the appellant. With regard to absconding of all of the
accused, it is submitted that since all the accused persons except Tashi managed to
disappeared from the crime scene, it can be safely inferred that accused were absconding
and the accused have not been able to probabilise their defence, therefore adverse
inference can be drawn against them.

InTakhajiHirajiv.ThakoreKubersingChamansing45,non-suggestion by the defence that

they were not present at the place of the incident and did not participate therein led the
court to draw adverse inference against them. Finding further the eyewitnesses consistent
and reliable in their narration of the incident, the court said non-examination of other
witnesses does not cast any infirmity in the prosecution case.46

In State v.Jawan Singh47,with regard to disappearance of accused in such

circumstances a divisional bench of Rajasthan High Court observed thatthe disappearance

of the accused after the commission of the alleged crime is a circumstance, which, in the
absence of any plausible explanation, goes against the appellant. We are in agreement with
the reasoning of learned Counsel for the appellant that mere by itself cannot form the basis
of conviction. But, where, as here, there is other evidence to connect the accused with the
crime, absconding is a useful piece of corroborative evidence and facts tending to explain
the fact of absconding would be relevant under Section 9 of the Evidence Act: vide
illustration (c) to Section 9 of the Act.
44Prem Kumar v. State of Bihar, (1995) 3 S.C.C. 228, 5.
45(2001) 6 S.C.C. 145: 2001 S.C.C. (Cri) 1070.
46Id, Page 155, 19.
471971 S.C.C.OnLine Raj 71, 37.
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2.5.1 Respondents did not avail the opportunity to explain the circumstances appearing
against him neither did they put forward any defence:

It is humbly submitted that when the accused-appellants made their statement under
section 313 of Cr.P.C. to the effect that they had they knew nothing about this event, it
necessitates the inference that appellants were not present except Tashi, then only it can
be said that they knew nothing about this event but there was no cogent evidence on
record to support their plea. The burden of proof as to this particular fact lies with
appellants by virtue of section 103 of Indian Evidence Act, 1872. On this point reference
can be made to this courts judgment in Ramnareshv. State of Chhattisgarh48, where the
accused denied their presence on the spot, at the time of occurrence. Thus, according to
this court, it was for them to prove that they were not present at the place of occurrence
and were entitled to the plea of alibi49.

In the instant case the trail court had put all material evidence to the accused-respondents
under Section 313 Cr.P.C.andthe accused-respondents were given an opportunity to
explain the circumstances appearing against themand also to put forward their defence,
but they did not avail this opportunity, then consequences in law must follow.

2.6 That in criminal justice system we have to ensure a fair trial where the accused
and the prosecution both get a fair deal and the guilty man does not escape:

It is submitted that Sahabuddinv. State of Assam50 our criminal justice system provides
safeguards of fair trial and innocent till proven guilty to an accused, there it also
contemplates that a criminal trial is meant for doing justice to all, the accused, the society
and a fair chance to prove to the prosecution. Then alone can law and order be
maintained. The Courts do not merely discharge the function to ensure that no innocent
man is punished, but also that a guilty man does not escape. Both are public duties of the
judge.51In ZahiraHabibullah Sheikh and Anr.v. State of Gujarat52, the Court underlined the
importance of the role of witnesses in a criminal trial and held further that the conducts
which illegitimately affect the presentation of evidence in proceedings before the courts

48(2012) 4 S.C.C. 257.

49 Id., 52-53.
50(2012) 13 S.C.C. 213.
51Id page 227, 34.
52 (2006) 3 S.C.C. 374 : (2006) 2 S.C.C. (Cri) 8
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have to be seriously and sternly dealt with. There should not be any undue anxiety to only
protect the interest of the accused. That would be unfair, as noted above, to the needs of
the society. On the contrary, efforts should be to ensure a fair trial where the accused and
the prosecution both get a fair deal. Public interest in the proper administration of justice
must be given as much importance, if not more, as the interest of the individual accused.
In thus courts have a vital role to play.53

2.7 That the high court has failed to take notice of the entire facts of the case:

It is submitted that the Honble High Court has failed to take notice of the entire facts of
the case and thus erred in acquitting all the accused-respondents. Merely after considering
Ballans statement to be concocted and statement of an interested party it rejected his
testimony and came to conclusion that prosecution lacks substance without taking notice
of the entire facts of the case. A single circumstance cannot be taken to be decisive or
determinative for judging the credibility or otherwise of a witness but the cumulative
effect of all the circumstances has to be considered. 54 This court in case of
ShyamalGhoshv. State of West Bengal55 said that the court should examine the statement
of a witness in its entirety and read the said statement along with the statement of other
witnesses in order to arrive at a rationale conclusion. No statement of a witness can be
read in part and/or in isolation.56

In this regard it is important to refer to this courts decision in UgarAhir v. State of Bihar57
whereby it observed that the maxim falsus in uno, falsus in omnibus (false in one thing,
false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes
across a witness whose evidence does not contain a grain of untruth or at any rate
exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to
scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the
grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution
case or the material parts of the evidence and reconstruct a story of its own out of the
rest.58

53Id, p. 398, 42.

541 Chief Justice Monir,Law of Evidence, 103 (16th ed. Universal Law Publishing Co. 2013).
55(2012) Cr. L.J. 3837.
56Id 34.
57A.I.R. 1965 S.C. 277: (1965) 1 Cri.L.J. 256.
58Id. 6.
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2.8. That examination of the evidence ought to have been done carefully by the High
Court and cogent and convincing reasons have to be given by the court before
terming Ballans statement unacceptable and interfering with the conviction:

It is submitted that in the case of Rajasthan v. Chandagiram,59while examining the

reasoning of a division bench of High Court where it had interfered with the conviction
imposed by the Trial Court, this court said High Court ought to have examined the
evidence meticulously and expressed cogent and convincing reasons as to why the
detailed consideration of the evidence did not inspire confidence in order to interfere with
the conclusion of the Trial Court. Thus it found that the High Court had miserably failed
to carry out the said exercise and without assigning reasons, much less convincing
reasons, has chosen to interfere with the conviction imposed by the Trial Court in a light
hearted manner.60

It further found that the eye-witnesses account of the concerned witnesses were all
convincing and were corroborative in every minute aspect of the occurrence. This court
also found that their version was natural and there was nothing to suspect their version in
narrating the occurrence61.

In view of the aforesaid discussion, facts and circumstances of the case, it is our benign
submission that High Court has clearly erred in reversing the order of conviction recorded
by the trial Court which consequentlyresulted in grave miscarriage of justice.
Accordingly, we request this court to allow this appeal and set aside the judgment and
order of the High Court and restore the judgment and decision of the trial Court.

59(2014) 4 S.C.C. 596.

60Id, 27.
61Id. 28.
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3. THAT THE RESPONDENTS BE GIVEN CAPITAL PUNISHMENT.

3.1 There was mensrea and the injury was sufficient to cause death:

3.1.1 There was an intention to cause death of the deceased and the injury so inflicted was
done in furtherance of a common intention:

The appellants humbly submits that in the present case the injury inflicted upon the
deceased was done with an intention and all the acts were done in furtherance of a
common intention which was to killLallan, the deceased.

With regard to presence of intention the court in the case of BavisettiKameshwaraRao

@Babai v. State of Andhra Pradesh62has opined that the question so far as the intention
is concerned, it is not whether he intended to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in question and once the
existence of the injury is proved the intention is there or not is one of fact and not one of
law.

In the present case, at first only Jeysha and his friend Tashi engaged into a fight with the
deceased but soon all four brothers of Jeysha also got involved into it and it was only
after Jeysha instructed them by saying Iskakaamkhatamkar do, they all dragged the
deceased into a small gali where Jeysha started stabbing him. All these fact clearly lead us
to show that there was indeed an intention to cause death of the deceased.

Also, in Barendra Kumar Josh v. King Emperor63, the court opined that under section 34
of the Indian Penal Code, 1860, all are equally liable for acts done in furtherance of
common intention so in the case at hand there is no iota of doubt regarding all of the
accused being charged under 302 of the Indian Penal Code, 1860.

3.2.2 The injury so inflicted was sufficient to cause death of the deceased:

The appellants respectfully submits that in the case at hand there was mensrea and the
injuries inflicted upon the deceased by all of the accused were sufficient to cause death
within clause (iii) to section 300 of the Indian Penal Code, 1860 according to which
culpable homicide is murder if it is done with the intention of causing bodily injury to any

62A.I.R. 2008 S.C. 1854.

63A.I.R. 1925 P.C. 1.
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person and the bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death.

The apex court in BavisettiKameshwaraRao @ Babai v. State of Andhra Pradesh 64 has

held that in a case where there was 12cm deep injury by the use of screw driver directed
towards the liver and spleen of the deceased, the injury in itself would reveal that when
the screw driver was plucked with savage force into the vital part of the body with it, it
cut his liver and spleen, which clearly demonstrates that this was a case, where the act
was done with the intention of causing bodily injury and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause the death covered by
Thirdly of section 300 of the Indian Penal Code.

As per the medico legal report attached, a total of 21 bodily injuries were present on the
victim and out of those 21 several were stab wounds directed towards vital organs like,
liver, large intestine and even both the kidneys. The wound directed towards liver was 15
cm deep and another wound directed towards the large intestine was 10 cm deep. Stab
wounds directed towards both the kidneys were 5 cm deep.

It can therefore, be safely said that the total number of injuries that were inflicted upon
the deceased were sufficient and in fact, a 15 cm deep injury directed towards the liver, as
is present in the case at hand, is in itself sufficient to cause death of the deceased, as was
also deposed by the PW-3, a chief medical officer, within clause (iii) to section 300 of the
Indian Penal Code.

3.2. A sentence of death is justified in the present case.

It is our submission that the present calls for the imposition of extreme sentence of death
to all of the accused because of the extreme brutality involved in it and the cruel
execution of the offence.

As stated by their Lordships of the Bombay High Court 65, the question of sentence in a
case of murder has almost always presented to Courts a certain amount of difficulty and
while Judges ought to administer the law as they find it and not as they wish it to be, one
must not hesitate to impose the extreme penalty of law. In the under mentioned Pakistan

64A.I.R. 2008 S.C. 1854.

65State v. Shankar SakharamJadhav and another, A.I.R. 1957 Bom 226.
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case66, it was observed that leniency in the matter of punishment of cases in which the
accused deserves a capital punishment will be a dereliction of duty on the part of the
Judge to whom the State has entrusted the duty of doing justice between man and man. It
may also be remembered that the dread of punishment of death acts as a restraint on many
ill-tempered persons from taking human life on slight provocation.67

In cases involving killing of a human being, the Courts should not be so insensitive
because the decision given by the Courts in such cases has the potential to act as a
deterrent for the commission of like offences by others. On the other hand, the imposition
of such inadequate punishment by the Courts may at times encourage criminals.

In recent years crimes in India are on rise so, the Courts are expected to impose an
appropriate and adequate punishment so as to respond to the societys need for justice
against such criminals. It is justified on the part of the Courts to keep in view of the rights
of the accused while awarding him punishment but while doing so, it should not outweigh
the rights of the victim of the crime and the society at large.

3.2.1 The aggravating and mitigating circumstances are required to be taken into
consideration while applying the doctrine of rarest of rare cases:

In Jagmohan Singh v. State of U.P.68 the Supreme Court laid down that discretion in the
matter of sentencing is to be exercised by the Judge after balancing all the aggravating
and mitigating circumstances of the crime. It also laid down that while choosing
between the two alternative sentences provided in Section 302 of the Indian Penal Code,
1860 (sentence of death and sentence of life imprisonment), the court is principally
concerned with the aggravating or mitigating circumstances connected with the
particular crime under inquiry. In so far as aggravating circumstances are concerned,
they refer to the crime. In so far as mitigating circumstances are concerned, they refer to
the criminal.

The facts of the case at hand show that the accused were not under influence of any
intoxicant and in fact, were completely in their senses when the crime was committed.
Neither had they acted under the duress or domination of another person. Also, it has been

66Khairdi Khan v. Crown, (1951) 52 Cri .L.J. 1172.

673 Manohar and Chitaley, The Indian Penal Code, 673 (4thed.All India Reporter Pvt. Ltd.
Nagpur 2006).
68(1973) 1 S.C.C. 20.
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held in plethora of cases69 that although the age of the accused is a relevant consideration
but it is not a determinative factor by itself.Hence, in the present case going by the facts it
is absolutely clear the there are no mitigating circumstances present.

On the other hand, the offence was committed near Budh Bazar Road which is a public
place and the offence has the tendency to create a fear psychosis in the public at large and
also has the capacity to shock the conscience of the society at large. The sole motive
behind the commission of the offence was revenge. The medico legal report also suggests
that the offence was committed outrageously and involved inhumane treatment and
torture to the victim.

These facts clearly lead us to show that the aggravating circumstances in the present case
clearly outweigh the mitigating circumstance hence justifying the need of awarding of
death sentence. Also, all the evidences point towards the guilty intention of all of the
accused. According to the statement given by Ballan, when he started shouting all of the
accused started running away which only shows their deliberate intention to kill Lallan.
Also, the fact that Jeysha, one of the accused, deliberately took the knife and threw it into
the river Ghaggar near Ambala establishes the mensrea which in a murder case is an
essential ingredient.

3.2.2 Nature of crime is also an important factor while deciding between awarding death
sentence or life imprisonment.

This has two pointers viz. was it a case of diabolical murder and was there any planning
preceding commission of murder. Normally in cases where murder is committed of a
large number of persons or by more than one person in a brutal and systematic manner,
death sentence is upheld.70

69Shankar KishanraoKhade v. State of Maharshtra, (2013) 5 S.C.C. 546;

DhananjoyChatterjee v. State of W.B., (1994) 2 S.C.C. 220; Jai Kumar v. State of M.P.,
(1999) 5 S.C.C. 1;Shivu and Another v. Registrar General, High Court of Karnataka and
Another, (2007) 4 S.C.C. 713; Vikram Singh and Others v. State of Punjab, (2010) 3 S.C.C.
56; Atbir v. Government of N.C.T. of Delhi, (2010) 9 S.C.C. 1; Mohd. Ajmal Amir Kasab alias
Abu Mujahid v. State of Maharashtra, (2012) 9 S.C.C. 1.
70SwamyShraddananda v. State of Karnataka,A.I.R. 2007 S.C. 2531.
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Also, the fact that since the Honble High Court has acquitted all of the accused is no
defense, as mere acquittal or lesser sentence imposed by the lower court is not a
mitigating factor.71

A sentence of death will be proper where the case is one of cold blooded, callous, and
vindictive character72 or where the murder is committed for lust or greed73. Also, in the
absence of and extenuating circumstances punishment of death is an appropriate one. 74In
Haresh Mohandas Rajput v. State of Maharashtra75 the apex court opined that, Where an
accused does not act on any spur-of-the-moment provocation and indulges himself in a
deliberately planned crime and meticulously executes it, the death sentence may be the
most appropriate punishment for such a ghastly crime. In the case at hand, the facts
clearly state that the murder was indeed a cold blooded. All the five persons first engaged
in a fight with the deceased and then dragged him into a small gali and started stabbing
him.

The main point to be given consideration with regard to awarding punishment of death is
whether the case falls under the category of rarest of rare as decided by the Honble
Supreme court in the cases of Bacchan Singh v. State of Punjab76, Macchi Singh v. State
of Punjab77, and Kehar Singh v. State (Delhi Admin.)78. One such principle is the nature of
the crime. The Courts must keep in view the nature of the crime, the brutality with which
it was executed and, death sentence would be warranted if murder is diabolically
conceived and cruelly executed, having regard to the weapon used and the manner of
their use, horrendous features of the crime, helpless state of victim. Where the murder
committed is cold blooded, gruesome and heinous, it is rarest of rare case justifying
extreme sentence of death.

In the case at hand, the facts clearly depict the plight of the victim and the extreme
brutality with which he was murdered. First all five of the accused started fighting with
him and then they dragged him to a gali and started stabbing him. The medico legal report

71Devender Pal Singh v. State, N.C.T. of Delhi and Another,A.I.R. 2003 S.C. 886.
72BishanDass v. State of Punjab, A.I.R. 1975 S.C. 573.
733 Manohar and Chitaley, The Indian Penal Code, 672 (4thed. All India Reporter Pvt. Ltd.
Nagpur, 2006).
74Suresh v. State of Maharashtra, A.I.R. 1975 S.C. 783.
75(2011) 12 S.C.C. 56.
76(1980) 2 S.C.C. 684.
77(1983) 3 S.C.C. 470.
78(1988) 3 S.C.C. 609.
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clearly depicts the brutality and cruelty in the execution of the crime and the helpless state
of the victim and also the savage force with which the knife was plucked into the vital
parts of the body.Also, the facts of the case also show that when A.S.I Harpal Singh and
his team went to the crime spot they found a lot of blood strewed over the road which
only goes to prove the brutal nature of the offence and the cruelty with which it was
executed. The manner in which the offence has been committed makes the case to fall
under the category of rarest of rare case thereby justifying the extreme penalty of sentence
of death.

Death sentence must be imposed only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant circumstances of the crime 79 which
is exactly the situation in the present case so death sentence should be awarded to all of
the accused.

4. THE COMPENSATION AMOUNT AWARDED BY THE TRIAL COURT

UNDER SECTION 357A

OF

CR.P.C., 1973, IS NOT ADEQUATE HENCE THE

SAME HAS TO BE ENHANCED.

Although in the instant no amount of compensation can be adequate nor it can be of any
respite to the victim-parents of the deceased Lallan, in the instant case, state is dutybound to provide compensation which may help in victims rehabilitation. In the instant
case the Honble Supreme Court has to take adequate compensatory measures to ensure
rehabilitation, the initial amount of compensation ofRs. 2,00,000/- as awarded was not
sufficient enough to provide any solace to the victim-parents of the deceased Lallan, the
Honble Supreme Court has to enhance the compensation amount to Rs. 10,00,000/because the rehabilitation of the victim is of paramount importance. The mental trauma
that the victim suffers due to the commission of such heinous crime, rehabilitation
becomes a must in each and every case.80

The parents claim for compensation is undisputed because the scheme under section
357A of Cr.P.C., 1973, is made applicable to the victims irrespective of the outcome of

79Machhi Singh v. State of Punjab, A.I.R. 1983 S.C. 957.

80Mohd.Haroon v. Union of India, (2014) 5 S.C.C. 252, Para 124.
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the prosecution.81 In a case before the Honble Supreme Court it was held that, even when
the State fails to identify the accused or fails to collect and present acceptable evidence to
punish the guilty, the duty to give compensation remains. Victim of a crime or his kith
and kin have legitimate expectation that the State will punish the guilty and compensate
the victim. There are systemic or other failures responsible for crime remaining
unpunished which need to be addressed by improvement in quality and integrity of those
who deal with investigation and prosecution, apart from improvement of infrastructure
but punishment of guilty is not the only step in providing justice to victim. Victim expects
a mechanism for rehabilitative measures, including monetary compensation. Such
compensation has been directed to be paid in public law remedy with reference to
Article.82

This entire scheme of compensation under section 357A of Cr.P.C., 1973 is called victim
compensation scheme and the purpose of this section is to provide compensation to the
victim or his dependent, who have suffered loss or injury as a result of crime and who
require rehabilitation83.

The quantum of compensation under section 357A of Cr.P.C., 1973, depends upon the
facts of each case. But the compensation amount so granted should be reasonable enough
to meet the immediate need of coming out of the trauma/catastrophe. 84 The loss caused in
the instant case was unrecoverable, therefore the degree of compensatory measure to be
taken under section 357A of Cr.P.C., 1973, should also be proportionate to the harm
suffered, thus compensation amount has to be enhanced, the scenario in present case also
strengthens such demand because the amount spent by the parents for the upbringing of
the victim need to be taken into account. The compensation amount of Rs. 2,00,000 is not
adequate for rehabilitation of the old parents of the deceased victim. In this regard
reference can be made to a case decided by the Delhi High Court, where, it was observed
that the Section 357A empowers the Court to direct the State to pay compensation to the
victim in cases where the compensation awarded Under Section 357 is not adequate for
such rehabilitation, or where the case ends in acquittal or discharge and the victim has to

81R.V. Kelkar, Criminal Procedure 639 (6th ed. Eastern Book Company2014).
82Suresh and Anr.v. State of Haryana, 2015 S.C.C.OnLine S.C. 952, 12.
834 Sohonis, Code of Criminal Procedure,1003 (21st Ed. Lexis Nexis, 2015).
84State of Rajasthan v. SanyamLodha, (2011) 13 S.C.C. 262.
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be rehabilitated.85 Hence in view of the aforesaid discussion the compensation amount

should be enhanced.

85Ghanshyam @Bittuv.State, 2014 S.C.C.OnLine Del 4720.

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PRAYER

IN THE LIGHT OF ARGUMENTS ADVANCED AND AUTHORITIES CITED, THE

APPELLANTS HUMBLY SUBMIT THAT THE HONBLE COURT MAY BE
PLEASED TO ADJUDGE AND DECLARE THAT:

A. THE IMPUIGNED JUDGMENT OF THE DELHI HIGH COURT SHOULD BE

QUASHED ON THE GROUND THAT THE ACQUITTAL OF RESPONDENTS
RESULTED IN GRAVE MISCARRIAGE OF JUSTICE.
B. THE STATEMENT OF SH. BALLAN IS CREDIBLE AND THE GUILT OF THE
RESPONDENTS WAS ESTABLISHED BY THE APPELLANT-PROSECUTION
BEYOND ALL THE REASONABLE DOUBTS AND THEREFORE THE
RESPONDENTS BE GIVEN CAPITAL PUNISHMENT.
C. THE COMPENSATION AMOUNT AWARDED BY THE TRIAL COURT UNDER
SECTION 357A OF Cr.P.C., 1973, IS NOT ADEQUATE HENCE THE SAME
SHOULD BE ENHANCED TO RS. 10,00,000/-.

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED
TO GRANT IN THE INTERESTS OF EQUITY, JUSTICE AND GOOD
CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd/-

ON BEHALF OF STATE (NCT OF

DELHI)

13

COUNSELS FOR THE APPELLANT