Appellants Memorial Final

-Arguments-
8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION
IN THE HONBLE
BOMBAY HIGH COURT
Under Section 374(2) of the Code of Criminal Procedure
IN THE MATTER OF
SOMNATH RAJIV SATPUTE..APPELLANT

V.
STATE OF BADARASHTRARESPONDENT
Submitted By
Saloni Agrawal
Shubham Kumar Sharma
Karan Parihar
Institute of Law, Nirma University
Ahmedabad, Gujarat
-Appellant-
-Arguments-
-Appellant-
TABLE OF CONTENTS
LIST OF ABBREVIATION.........ii
INDEX OF AUTHORITIES.....iv
STATEMENT OF JURISDICTION ..........ix
STATEMENT OF FACTS.......xi
STATEMENT OF ISSUES..xiii
SUMMARY OF ARGUMENTS.........1-2
ARGUMENTS ADVANCED.......3-29
[1] THE ACCUSED WAS NOT RIGHTLY CONVICTED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC
[II] THE JUDGMENT PASSED BY THE TRIAL COURT WAS NOT APPROPRIATE
PRAYER....30
MEMORANDUM on behalf of APPELLANT

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LIST OF ABBREVIATIONS
S. No.
1.
2.
Abbreviation
&
ABR
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.
31.
32.
33.
35.
36.
37.
38.
39.
40.
41.
ACR
AD
Add.
ADJ
AIR
ALD
All.
Anr.
BLD
BomCR
BOMLR
Cr.P.C.
CriLJ
DRJ
DW
ed.
Exh.
Guj.
Honble
i.e.
ILR
IPC
KLJ
Mohd.
NOC
Ors.
PLJR
PW
S/o
SC
SCC
Sec.
Sr.
U.P.
u/s
v.
Vol.
WLN
Full Form
And
All India Reports-Bombay High Court
Reports
Allahabad Criminal Rulings
Apex Decision
Additional
Allahabad Daily Judgments
All India Reporter
Andhra Legal Decisions
Allahabad
Another
Bangladesh Legal Decisions
Bombay Crime Reporter
Bombay Law Reporter
Code of Criminal Procedure
Criminal Law Journal
Delhi Reported Journal
Defense Witness
Edition
Exhibit
Gujarat
Honourable
That is
Indian Law Reporter
Indian Penal Code
Kerala Law Journal
Mohammed
Notes on Cases
Others
Patna Law Journal
Prosecution Witness
Son of
Supreme Court
Supreme Court Cases
Section
Senior
Uttar Pradesh
Under Section
Versus
Volume
Weekly Law Notes

3
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INDEX OF AUTHORITIES
JUDICIAL DECISIONS
1. Abdullah v. Emperor, 27 CriLJ 73.

2. Ashok Kumar Uttamchand Shah v. Patel Mohmad Asmal Chanchad,
AIR1999Guj.108.
3. Balak Ram v. State of U.P. and Mohd. Sayeed Khan and Ors. v. State of U.P.,
1974CriLJ1486.
4. Balbir Singh v. State of Punjab, AIR2006SC3221.
5. Baldeo and Anr. v. State of U.P., 2004CriLJ2686.
6. Basir Singh and Ors. v. State of Rajasthan, 1994CriLJ2526.
7. Bhanudas Bandu Thite v. State of Maharashtra, 2013(4)ABR61.
8. C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996CriLJ3461.
9. Damodaran Damu v. State, 1990(1)KLJ258.
4
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10. Ganesh Yadav v. State of U.P., 2009CriLJ(NOC)1008(All).

11. Ganpat v. The State of Maharashtra, 2012BomCR(Cri)355.
12. Govind Hari Swamy and Ors. v. State of U.P., 2011(6)ADJ563.
13. Hanumant Govind Nargundkar v. The State of Madhya Pradesh,
1953CriLJ129.
14. Kartik Malhar v. State of Bihar, 1996(1)ALD(Cri)73.
15. Krishan and Anr. v. State of Rajasthan, 1996(2)WLN134.
16. Kulwant Singh v. State of Punjab, (2004)9SCC257.
17. Laxman v. State of Maharashtra, AIR 2002 SC 2973 (1).
18. Md. Badaruddin Ahmed v. State of Assam, 1989CriLJ1876.
19. Madhu Bala v. State (Delhi Administration), 1989(17)DRJ178 :
1990CriLJ790.
20. Mona Das v. State of Assam, 2014CriLJ1704.
21. Mukanda and Ors. v. State, 1957CriLJ1187.
22. Munshi Prasad v. State of Bihar, 2001 (4) PLJR 185.
23. Paparambaka Rosamma & Ors. v. State of Andhra Pradesh,
1999(3)ACR2149(SC).
24. Paras Kumhar v. State of Bihar, 2001(3)PLJR387.
25. Ram Kishore v. State, 1990 CriLJ NOC 118(Delhi).
26. Rama Shankar son of Nanaee (In Jail) v. State of U.P., 2008 CriLJ129(132).
27. Sahib Singh v. State of Punjab, AIR1997SC2417.
28. Shaikh Rafiq and Anr. v. State of Maharashtra, 2008CriLJ1592(SC).
29. Siddique Munshi v. The State, 1992 12 BLD (AD)59.
30. State of Maharashtra v. Sanjay S/o Digambarrao Rajhans, AIR2005SC 97.
31. State of Rajasthan v. Smt. Kalki & Anr, AIR1981SC1390.
32. State of U.P. v. Ramesh Prasad Mishra and Anr., 1996VIAD(SC)209.
33. Sugali Sankaramma & Ors. v. Vanna Venkateswarlu & Ors.,
2004CriLJ2584.
34. Syed Akbar v. State of Karnataka, AIR 1979 SC 1848.
35. Thankappan Mohanan and Ors. v. State of Kerala, ILR1990(2)Kerala22.
36. Vasanta S/o Shrawan Gajbhiye v. The State of Maharashtra trough PSO,
2007(109)BOMLR2214.
DIGESTS, LEXICONS
1. C.D. FIELD, COMMENTARY ON LAW OF EVIDENCE ACT, 1872, DELHI LAW

HOUSE, VOL. 1 (13th ed. 2013).
2. D.N. SEN, THE CODE OF CRIMINAL PROCEDURE, 1973. PREMIER PUBLISHING
CO., VOL. 2 (2nd ed. 2008).
3. DR. B.R. SHARMA, FORENSIC SCIENCE IN CRIMINAL INVESTIGATION AND
TRIALS, UNIVERSAL LAW PUBLISHING CO. PVT. LTD. (4th ed. 2008).
4. DR. K. N. CHANDRASEKHARAN PILLAI, GENERAL PRINCIPLES OF CRIMINAL
LAW, EASTERN BOOK COMPANY (1st ed. 2007).
5. DR. K. N. CHANDRASEKHARAN PILLAI, R.V. KELKARS CRIMINAL
PROCEDURE, EASTERN BOOK COMPANY (5th ed. 2011).
6. DR. K. N. CHANDRASEKHARAN PILLAI, R.V. KELKARS CRIMINAL

5
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-Appellant-
PROCEDURE, EASTERN BOOK COMPANY (6th ed. 2014).

7. DURGA DAS BASU, CRIMINAL PROCEDURE CODE, 1973, LEXIS NEXIS, VOL. 1
(5th ed. 2014).
8. DURGA DAS BASU, CRIMINAL PROCEDURE CODE, 1973, LEXIS NEXIS, VOL. 2
(5th ed. 2014).
9. HALSBURYS LAWS OF ENGLAND, CRIMINAL LAW, EVIDENCE AND
PROCEDURE, LEXIS NEXIS BUTTERWORTHS, VOL. 11(4) (4th ed. 2006).
10. HALSBURYS LAWS OF INDIA, CRIMINAL LAW-II, LEXIS
NEXIS
BUTTERWORTHS, VOL. 5(2) (2006).

11. HALSBURYS LAWS OF INDIA, CRIMINAL PROCEDURE-II, LEXIS NEXIS
BUTTERWORTHS, VOL. 33 (2007).
12. JUSTICE C.K. THAKKER & MRS. M.C. THAKKER, LAW OF EVIDENCE,
WHYTES & CO., VOL. 1 (2013).
13. JUSTICE M. MUNIR, THE LAW OF EVIDENCE, UNIVERSAL LAW PUBLISHING
CO., (8TH ED. 2011).
14. JUSTICE M.L. SINGHAL & SABIHA, AN ANALYTICAL AND EXHAUSTIVE
COMMENTARY ON INDIAN PENAL CODE, 1860, PREMIER PUBLISHING CO.,
VOL. 1 (2nd ed. 2007).
15. JUSTICE Y V CHANDRACHUD & V R MANOHAR, RATANLAL & DHIRAJLAL
THE INDIAN PENAL CODE, WADHWA NAGPUR (31st ed. 2007).
16. M.R. MALLICK, A.N. SAHAS CRIMINAL REFERENCE, EASTERN LAW HOUSE
(6th ed. 2009).
17. R.C. GOEL & RAJIV RAHEJA, HINTS AND TRICKS ON CRIMINAL LAW,
CAPITAL (INDIA) (1st ed. 2010).
18. R.P. KATHURIA, LAW OF CRIMES AND CRIMINOLOGY, VINOD PUBLISHING
(P) LTD. (3rd ed. 2014).
19. RAM JETHMALANI & D.S. CHOPRA, THE INDIAN PENAL CODE, THOMSON
REUTERS, VOL. 1 (1st ed. 2014).
20. RATANLAL & DHIRAJLAL, LAW OF CRIMES, A COMMENTARY ON INDIAN
PENAL CODE, 1860, BHARAT LAW HOUSE, VOL. 2 (27th ed. 2013).
21. S.C. SARKAR, COMMENTARY ON EVIDENCE, DWIVEDI LAW AGENCY, VOL. 1
(2nd ed. 2008).
22. S.C. SARKAR, COMMENTARY ON EVIDENCE, DWIVEDI LAW AGENCY, VOL. 2
(2nd ed. 2008).
23. S.C. SARKAR, COMMENTARY ON THE INDIAN PENAL CODE, 1860, DWIVEDI
LAW AGENCY, VOL. 2, (3rd ed. 2012).
24. S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS
BUTTERWORTHS WADHWA NAGPUR, VOL. 1 (10th ed. 2012).
25. S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS, VOL. 1
(11th ed. 2015).
26. S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS, VOL. 2

6
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(10th ed. 2014).

27. S.K. MUKHERJEE, LAW OF CRIMINAL APPEALS, REVISIONS, REFERENCES,
DWIVEDI LAW AGENCY (2nd ed. 2010).
28. S.K. SARVARIA, R.A. NELSONS INDIAN PENAL CODE, LEXIS NEXIS
BUTTERWORTHS, VOL. 4 (9th ed. 2003).
29. SURENDRA MALIK & SUDEEP MALIK, SUPREME COURT ON CRIMINAL
PROCEDURE CODE & CRIMINAL TRIAL, EASTERN BOOK COMPANY, VOL. 1
(2011).
30. SURYA NARAYAN MISRA, THE INDIAN PENAL CODE, CENTRAL LAW
PUBLICATION (15th ed. 2007).
31. THE CODE OF CRIMINAL PROCEDURE, BARE ACT, PROFESSIONAL BOOK
PUBLISHERS.
32. THE INDIAN EVIDENCES ACT, 1872, PROFESSIONAL BOOK PUBLISHERS.
33. THE INDIAN PENAL CODE, EASTERN BOOK COMPANY (34th ed. 2013).
34. VINAY SHARMA, DOWRY DEATHS, LEGAL PROVISIONS AND JUDICIAL
INTERPRETATION, DEEP & DEEP PUBLICATIONS PVT. LTD. (2007).
35. VISHWAS SHRIDHAR SOHONI, THE INDIAN PENAL CODE, PREMIER
PUBLISHING COMPANY, VOL. 1 (1st ed. 2011).
WEBSITES
1. www.bombayhighcourt.nic.in
2. www.delhihighcourt.nic.in
3. www.indiankanoon.org
4. www.manupatrafast.in
5. www.scconline.com
6. www.westlawindia.com
OTHER AUTHORITIES
1. APPRECIATION OF EVIDENCE OF HOSTILE WITNESSES, MAHARASHTRA

JUDICIAL
ACADEMY,
http://mja.gov.in/Site/Upload/GR/summary%20of

7
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-Appellant-
%20second%20work%20shop%20criminal%20dated%2010-01-15.pdf, (last updated

on Feb. 11, 2016).
2. JUSTICE C.K. THAKKER & M.C. THAKKER, ENCYCLOPAEDIC LAW
LEXICON, ASHOKA LAW HOUSE, VOL. 1 (1st ed. 2010).
6. LOHITH KUMAR, KULBHUSHAN, C. BEHERA & ANIL KUMAR, MEDICOLEGAL
ASPECTS
OF
DYING
DECLARATION
IN
INDIA,
http://medind.nic.in/jal/t14/i3/jalt14i3p281.pdf, (last updated on Feb. 2, 2016).

7. P. RAMANATHA AIYAR, CONCISE LAW DICTIONARY, LEXIS NEXIS
BUTTERWORTHS WADHWA NAGPUR, (4th ed. 2012).
STATEMENT OF JURISDICTION

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THE APPELLANT HAS MOVED AN APPEAL BEFORE THE HONBLE HIGH

COURT OF BOMBAY, IN THE MATTER OF SOMANTH RAJIV SATPUTE V.
STATE OF BADARASHTRA, UNDER SECTION 374(2)1 OF THE CODE OF
CRIMINAL PROCEDURE.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND
ARGUMENTS.
STATEMENT OF FACTS
1 Section 374(2) Appeal from convictions:Any person convicted on a trial held by a Sessions Judge or an
Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more
than seven years [has been passed against him or against any other person convicted at the same trial] may
appeal to the High Court.

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-Appellant-
For the sake of brevity and convenience of the Honble Court the facts of the present case are
summarized as follows:
1. On 24/9/2010 at around 7 am, the appellant Somnath had altercation with his wife
Manju, on some point, after altercation he comes outside with her daughter.
2. Around 8 am, Manju, came out of the house and her body was on fire and at that time
Somnath was standing with his daughter near the tractor where sand was unloading by
Dagadu Nemdae.
3. Seeing her on fire, Somnath tried to extinguish the fire with his bare hands and as a
result of this he got serious injuries on his hand and finally her neighbors and brother
in law extinguished the fire with the blanket.
4. Kashinath Nemade, one of the neighbors, went to her maternal house and brought her
mother there. After her arrival, Suhas nemade took her in the Sumo jeep to the
hospital and in the jeep Suhas Nemade, Shruti Kokane, Amol Jyotiram Nemade, Vijay
Nemade were present and then Suhas Nemade admitted her in the Ambikapur hospital
and shifted in burn ward no. 25 at around 1.20 pm. In the jeep her mother was
instigating her to give statement against her husband.
5. At 1:20 Sharad Walunj got the information regarding the burnt patient by the
Ambikapur OPD Police Constable Munde B.No. 1028 and then he reached at 1:20 pm
at Ambikapur hospital from Haveli police station (according to Shri Sharad Walunj).
At 1:25 he reached near the patient and after inquiring from the doctor about her
condition, took her Statement around 1:30. He was in the hospital for 30 minutes.
During this statement by Manju her mother was present with her.
6. At around 3pm, PHC Subhash Shivaji Awhad was informed about the incident by
Sr.Police Inspector, Mr. Mehere of Mhadur Police Station and was instructed to record
Manjus statement. He acted as per the instructions and recorded her statement, i.e.,
dying declaration (Exh.34) after inquiring from the doctor about her condition.
7. Both the dying declaration given are contradictory in the nature, as in one statement
she told that their marriage was solemnized 5 years ago and in the second one she told
that they got married before 6 years. In the first statement she said that her neighbors
extinguished fire and in the second one she said that her brother-in-law extinguished
the fire.

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8. There are also procedural lapses in preparing Spot Panchnama and Inquest
Panchnama. Police had not done Spot Panchnama in the presence of two or more
independent and respectable inhabitants of the society [section 100(4) 2 of the Cr.P.C.].
Inquest panchanama should be prepared by the Maduri police station but this was
done by Ambikanagar Police Station.
9. Charges were framed against the accused to which he pleaded not guilty and claimed
to be tried. His statement was recorded under Section 313 3 of Cr.P.C. which was of
total denial and false implication.
10. The accused has already been acquitted under Section 498A 4 and convicted under
Section 3025 of IPC.
2 Section 100-Persons in charge of closed place to allow search:(4) Before making a search under this
Chapter, the officer or other person about to make it shall call upon two or more independent and respectable
inhabitants of the locality in which the place to be searched is situate or of any other locality if no such
inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the
search and may issue an order in writing to them or any of them so to do
3 Section 313- Power to examine the accused:(1) In every inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances appearing in the evidence against him, the Court-(a) may at
any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defense,
question him generally on the case. (2) No oath shall be administered to the accused when he is examined under
sub- section (1).(3) The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them.(4) The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for,
any other offence which such answers may tend to show he has committed.
4 Section 498A-Husband or relative of husband of a woman subjecting her to cruelty:Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.For the
purpose of this section, cruelty means(a) any willful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.
5 Section 302-Punishment for murder:Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.

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STATEMENT OF ISSUES
The following issues have arisen for determination before the Honble Court in
the instant matter:
1. WHETHER THE ACCUSED WAS RIGHTLY CONVICTED FOR THE

OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC?
2. WHETHER THE JUDGEMENT PASSED BY THE SESSIONS COURT
WAS APPROPRIATE?

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SUMMARY OF ARGUMENTS
1. THE ACCUSED WAS NOT RIGHTLY CONVICTED FOR THE OFFENCE

PUNISHABLE UNDER SECTION 302 OF IPC
The counsels on behalf of the appellant humbly plead that the conviction of the
accused under section 3026 is inappropriate and unjust.
To convict any person under the aforementioned section, the commission of the
offence under section 3007 of IPC is required to be proved. Further, to prove the
offence of murder two major ingredients need to be fulfilled. Firstly, whether the
accused had the intention to commit the crime or not, is a core issue, which in the
instant case is not satisfied. The accused, Somnath had no intention to cause the death
his wife, Manju (the deceased). Secondly, commission of the act or offence in
furtherance of the intention is another ingredient to be fulfilled in order to bring home
the guilt of the accused. Somnath did not commit the act of setting his wife ablaze on
fire after she poured kerosene on herself, and thereby causing her death due to burn
injuries.8 Moreover, the evidences (both documentary and oral) presented by the
respondents during the trial, stand to be sham and are therefore negated efficiently by
the appellant. The contended sole basis of conviction- dying declaration of the
deceased, is inconsistent and suffers serious infirmities, and is not further
corroborated by other evidences- seizure, inquest and spot panchanama, postmortem
6Supra Note 5
7 Section 300 of IPC-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 inflicted 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.
8 Paperbook on Criminal Appeal, 8th Lokmanya Tilak National Appellate Moot Court
Competition, 2016

1
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report, indoor case papers. Also, the chain of circumstantial evidences has not been
established to direct the allegation of the committed crime towards the accused.
Hence, the prosecution (the respondents) has not been able to prove their case beyond
all reasonable doubts that the accused has committed the murder of the deceased in all
human probabilities, and therefore his conviction for the same under section 302 of
IPC is incorrect and unjust.
2. THE
JUDGMENT
PASSED
BY
THE
TRIAL
COURT
WAS
NOT
APPROPRIATE
The judgment passed by the Sessions Court in the favor of respondents is not
appropriate. The entire trial conducted, starting from the recording of dying
declaration, investigation procedure till the presentation of evidences and oral
testimonies before the court, was ascertained with many procedural lapses which
cannot be neglected by the court merely by stating them to be mistakes which are so
minor, according to them, that it would not affect the judgment as a whole.
Firstly, the duties performed by the police head constables mentioned in the case
therein, in recording the dying declarations of the deceased were not appropriately
done. With regards to this, the inconsistencies which they show in their testimonies
raise a doubt on the statement of the deceased which they recorded, thereby making
them susceptible to be discarded. Secondly, the investigation process conducted by
the police inspectors amount to enormous errors and omissions in compliance to their
duties, which towards the end poses a question on the credibility of the evidences they
seized in furtherance of proving the guilt of the accused.9
Furthermore, there has been gross injustice done to the appellant by the Sessions
Court through the way of misinterpretation of facts and circumstances of the case and
of the evidences presented for the same and thereby sentencing him life imprisonment
for the offence which he did not commit. It is very well deciphered from the oral
judgment given and the reasoning thus attached, that the court at few instances bought
the arguments of the appellant and were convinced thus, holding them to be
reasonable enough, but towards the end stated them to be failed attempts made by the
appellant and considered that the respondents still had established the facts &
evidences and proved the case beyond all reasonable doubts, thereby giving the
decision in their favor.10
9 Supra Note 8
10 Ibid

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Therefore, the judicial interpretation done by the Sessions Court seems to have no
nexus with the proper application of reasons and justifications which is not only to be
done but to be seen as well as a matter of intelligible understanding.
ARGUMENTS ADVANCED
[1] THE ACCUSED WAS NOT RIGHTLY CONVICTED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
1. The counsels for appellant humbly submit that that there was no intention to commit the
act on behalf of the accused. Prima facie, Intention is the key ingredient in bringing
home the guilt of the accused. It is the mental state of the person committing a crime
which makes him guilty of the offence thereby committed. It can be deduced from the
following factors that the accused in this case had no mens rea to commit the offence.
2. Firstly, there were no bodily injuries on the deceased prior to this incident and it can be
inferred from the fact that there were no major inconsistencies in their relationship and
he didnt have any such grudge against her since the inception of their marriage. 11 Hence,
it is improbable that he could have developed an intention to put her to death at this stage
of their lives.
3. Secondly, the contention that he had the intention to commit the act can be negated by
the fact that he himself suffered burns on his hand while attempting to extinguish fire
from her body.
4. The other element for deciding the offence of murder is that of the Commission of Act
by the accused, which in the present case has not been satisfied by the accused
Somnath. When this particular incident occurred, the accused was not present there (in
the house). This fact is supported by the statements given by the prosecution witness 1
(PW1, Vijay Nemade) and defense witness 1 (DW1, Ketan Nemade) according to which
the accused was outside the house.
5. PW1 has explicitly brought out in his statement that the accused, Somnath was present
near the tractor along with his daughter when the work of unloading sand from the
11 Supra Note 8

3
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trolley of the tractor was going on by PW1 and when simultaneously the deceased,
Manju came running out of the house with her body on fire.12
6. DW1 has also stated in his testimony that on the day of the incident when he was sitting
in front of his house, work of unloading sand from tractor was going on by Vijay
Nemade and Kashinath Nemade and Somanth Satpute, the accused, was standing beside
them along with his daughter, and that is when he saw Manju, the deceased, shouting and
coming out of her house engulfed in fire.13
7. Moreover, both of the above mentioned witnesses also stated that when the neighbors,
including themselves, were trying to extinguish fire from the person of the deceased, the
accused had also attempted to extinguish fire from his hand though he did not succeed in
doing that.
8. Hence, all the above factors direct towards the absence of intention and the noncommission of the act, which are the prescribed requisites for the offence of murder, by
the accused, Somnath. The mere existence of the intention without commission of the
act or the commission of the act without the intent, does not, as a general rule, constitute
crime.14
9. Further, a chain of circumstantial evidences ought to be satisfied by the prosecution in
order to prove that all the circumstances of the incident direct to the guilt of the accused
which in the instant case the prosecution has failed to do. Moreover, the proved
circumstances must be consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.
10. It is well to remember that in case where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so established should be consistent only
with the hypothesis of the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words, there must be a chain of evidence so
far complete as not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all human
probability the act must have been done by the accused.15
12 Supra Note 8, p-6

14 P. RAMANATHA AIYAR, CONCISE LAW DICTIONARY, LEXIS NEXIS
BUTTERWORTHS WADHWA NAGPUR, 664 (4th ed. 2012).
15 Hanumant Govind Nargundkar v. State of Madhya Pradesh, 1953CriLJ129.

4
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-Appellant-
11. In a case based on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such circumstances
must be conclusive in nature. Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence. Further, the proved circumstances
must be consistent only with the hypothesis of the guilt of the accused and totally
inconsistent with his innocence.16
12. All the evidences presented by the respondents in order to support their case, stand
inadmissible and non-credible since they suffer from various discrepancies and
contradictions which has made them unable to prove their case beyond all reasonable
doubts. Below presented is a list of all the evidences (both documentary and statement
from witnesses) along with their inconsistencies which the appellants would negate
consecutively.
ORAL TESTIMONIES:(i)
Statement of PW1, Vijay Nemade.
13. Firstly, this prosecution witness stated in his testimony that when he was unloading sand
from trolley of his tractor near his house, at that time the accused, Somnath was present
near the tractor along with his one year old daughter. When the deceased came running
out of the house shouting in a state of being engulfed in fire, the accused was there
outside along with the other neighbors and had also attempted to extinguished fire by his
hand.
14. Secondly, when Vijay and others took the deceased to the hospital in the jeep, during that
time she told him to take care of her daughter and that her husband is not at fault in this
incident.17 Moreover, in the jeep in their presence, the mother of the deceased was
instigating her against the accused. After admitting her in the hospital, when the police
reached there in order to do inquiry about the incident, all of them were asked to vacate
the room but the mother accompanied the deceased while the inquiry was made by the
police. The presence of mother during the time of recording of dying declaration of the
deceased by the police, is verified by the history stated in the Indoor Case Papers
(Exh.45)18 in which every detail is mentioned as to what actions were taken each day
after her admission in the hospital, who visited the ward on a particular day, what is the
16 C. Chenga Reddy & Others v. State of Andhra Pradesh, 1996CriLJ3461.
17 Supra Note 12

5
-Arguments-
-Appellant-
condition of the patient after a certain time interval, what treatment is going on, what
type of injuries are suffered by the patient, etc.
15. Thirdly, the assistant police investigator in his statement mentioned that he has correctly
recorded portion marked A in the statement of Vijay given to him and is at Exh.50. But
Vijay claims that he has not stated anything of portion A in his statement earlier made to
the police and cannot assign any reason as to why it appeared in his statement when it
was read over to him. The portion marked A is the fact that whether the deceased stated
the entire incident to Vijay as to what happened inside the house and how she caught fire
over herself. The contested fact over here is that the police claim that Vijay has
mentioned in his statement about the incident which was narrated to him by the
deceased, but Vijay claims in his statement before the sessions court during the trial that
the deceased at no point of time has mentioned about the entire incident of that particular
day to him and the mention of the same in his statement given to the police is not
correct.19
16. Lastly, the testimony of Vijay is reliable and cannot be discarded as a whole on account
of being turned into hostile witness. The test of hostility is that of corroboration and
contradiction, and not mere addition. Had it been the case where Vijay would have said a
particular thing about the presence of the accused in his previous statements and later
would have rescinded from it by making another contradicting statement before the
court, then the issue of hostility would have barged into the scene, but here, Vijay
nowhere stated in his previous statements that accused was there at some anonymous
place at the time of the incident and then later before the court stated that the accused
was standing outside the house along with him.20 Hence, his testimony is admissible.
17. The mere fact that the truth has been revealed and it has gone against the party calling
him as a witness cannot render his evidence unreliable wholly or in part. A witness is not
necessarily hostile if he reveals the truth. The whole of his evidence so far as it affects
both the parties, favorably or unfavorably, must be considered and the court which gets
the opportunity to observe his demeanors is at liberty to make assessment of the
evidence. If corroboration from other sources is available to the evidence of a hostile
witness, there is no reason why his evidence should be rejected outright. If the evidence
of the hostile witness fits in with the attending circumstances, then it may be accepted
and considered along with other evidence.21The statement of hostile witness is not to be
19 Supra Note 12
20 Ibid
21 Siddique Munshi v. State, 1992 12 BLD (AD)59.

6
-Arguments-
-Appellant-
rejected as a whole simply on the ground that the witness is hostile. If some portion of
the hostile witness if inspired confidence it can be relied upon.22
18. The statement of hostile witness cannot be altogether discarded but it should be closely
scrutinized and that portion of the evidence which is consistent with the case of the
respondents or appellants may be accepted.23
19. The Honble Supreme Court in various judgments discussed about the hostile witnessa. In Md. Badaruddin Ahmed v. State of Assam in this Supreme Court told that unless
the particular matter on view in previous statements sought to be contradicted is
place before the witness for explanation, the previous statement cannot be used in
evidence. The drawing of the attention of witness to his previous statement sought to
be contradicted and giving of all opportunities to him for explanation are
compulsory.24
b. In Thankappan Mohanan v. State of Kerala, the Court held that what is really
necessary is substantial compliance of requirements of section 145 of the Act and the
purpose of second part of section 145 is to treat the witness fairly him reasonable
opportunity to explain the contraindications after his attention has been drawn to
them. The ideal procedure would be to record and extract in depositions relevant
previous statements.25
c. In Syed Akbar v. State of Karnataka Court said that witness though turned hostile,
we cant reject his testimony in totality. If his testimony was not shaken on material
points in cross examination then it cannot be brushed aside.26
20. Firstly our witness is not hostile and the after seeing above judgments we can find that
the statement of Hostile witness can be relied upon. The above judgments clearly explain
the condition where testimony of hostile witness can be accepted.
(ii)
Statement of DW1, Ketan Nemade.
21. This defense witness stated in his testimony that when the incident occurred on
24/09/2010, he was sitting in front of his house. There he saw the accused standing with
his daughter beside Vjiay Nemade and Kashinath Nemade who were doing the work of
unloading sand from the tractor, and at that time he heard the shouts of the deceased as
she came running out of her house engulfed in fire.27
22Ashok Kumar Uttamchand Shah v. Patel Mohmad Asmal Chanchad, AIR1999Guj.108.
23State of U.P. v. Ramesh Prasad Mishra and Anr. 1996VIAD(SC)209.
24 Md. Badaruddin Ahmed v. State of Assam, 1989CriLJ1876.
25 Thankappan Mohanan and Ors. v. State of Kerala, ILR1990(2)Kerala22
26 Syed Akbar v. State of Karnataka AIR1979SC1848
27 Supra Note 13

7
-Arguments-
-Appellant-
22. Ketan was the one who had extinguished fire by wrapping blanket around her and
therefore its not reasonable to show that he would make a statement against her in order
to save the accused. Moreover, at this time the deceased told him that she herself set her
on fire and that her husband is not at fault, and when her mother arrived there she stated
to her the same thing. This shows her consistency in claiming that her husband was
nowhere at fault in this incident and that she herself had set her on fire.28
23. Hence, both the above mentioned witnesses show that the accused is not guilty of the
offence of murder of his wife and their testimonies are reliable and trustworthy for the
purposes of the court in ascertaining the correctness of evidences presented during the
entire trial. As Add. Session Court discarded the statement of Ketan Nemade by saying
that he is the interested witness. Thats why the following are the arguments related to
the interested witness.
24. Interested witness the term interested witness postulates that the witness must have
some direct interest in having the accused somehow or the other convicted for some
animus or for some other reasons.29
25. The evidence tendered by the defense witness cannot be always termed as to be tainted
one by reason of the factum of the witnesses being examined by the defense. The defense
witnesses are entitled to equal respect and treatment as that of the prosecution. The issue
of credibility and the trustworthiness ought also to be attributed to the defense counsel at
par with that of the prosecution.30 Thats why the statement of Ketan Nemade should be
treated equally as the statement of Prosecution witnesses.
26. 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.31
27. A witness is normally to be considered independent unless he or she springs
from sources which are likely to be tainted and that usually means unless the
witness has cause such as enmity against the accused, to wish to implicate him
falsely.32 Ordinarily, a close relative would be the last to screen the real culprit
and falsely implicate an innocent person.33
28 Supra Note 13
29 JUSTICE C.K. THAKKER & M.C. THAKKER, ENCYCLOPAEDIC LAW LEXICON,
ASHOKA LAW HOUSE, VOL. 2 (1st ed. 2010).
30 Munshi Prasad v. State of Bihar, 2001(4)PLJR185.
31 State of Rajasthan v. Smt. Kalki & Anr, AIR1981SC1390
32 JUSTICE M. MUNIR, THE LAW OF EVIDENCE, UNIVERSAL LAW PUBLISHING
CO., (8TH ED. 2011).
33 Kartik Malhar v. State of Bihar, 1996(1)ALD(Cri)73

8
-Arguments-
-Appellant-
28. Testimony of interested witnesses cannot be altogether discarded it should be

deal with more care and caution.34 If interested witness is consistent, free from
any doubt and inspire confidence then it cannot be discarded merely on the
ground that witnesses are related to each other.35 When evidence available on
record is trustworthy, then rejection of evidence of witnesses on the grounds of
being interested being unjustified.36
29. The above conditions are laid down in the different Judgments of the Courts if
we see this above guidelines and compare with this present case then we can
see that Ketan Nemade is not an interested witness and he is only the
independent witness and his testimony cannot be discarded and Court should
take his testimony for consideration. Further, the other witnesses presented by
the respondents lack credibility since they are ascertained with certain
inconsistencies. Those are subsequently negated below.
(iii)
Statement of PW6, Dr. Pandit Swami, treating doctor of Manju

Satpute.
30. The doctor during his chief examination states that at the time of making dying
declarations to the police, the deceased was conscious and in a state of making valid
statement which on confirming only he allowed to take statements, but later during his
cross examination he states that in both the declarations (Exh.22 and 34) there is no
reference as to the confirmation that the patient was conscious and oriented.
31. Moreover, in both his statements during the trial he contested that he had made
endorsements on both the declarations after they had been recorded by the respective
police constables in order to verify that the declaration was given by the patient only
when it was confirmed by him that she was in a fit and conscious state of mind to give
the same, but those endorsements appear nowhere in the exhibits of dying declarations
presented before the sessions court as a matter of documentary evidence. 37 Thus, this
raises a doubt on the admissibility and reliability of the testimony given by this doctor.
34 Sugali Sankaramma & Ors. v. Vanna Venkateswarlu & Ors., 2004 CriLJ 2584
35 Paras Kumar v. State of Bihar, 2001 (3)PLJR387(pat)
36 Supra Note 15
37 Supra Note 8, pp-12, 23

9
-Arguments-
-Appellant-
(iv)
Statement of PW3, Rohan Pravin Chandra.
32. This witness was called in the police station for panchanama. According to his statement
he was called in order to be a witness for the seizure of the clothes of the accused. But in
actuality what happened was that the clothes were already seized and were kept beside
the accused when he reached the police station, and he was a witness of only the act that
the seized clothes were wrapped in brown papers separately, were labeled and then sent
for further procedure38. Hence, his role as a panch witness has not been appropriately
complied with and therefore cannot be considered reliable evidence.
(v)
Statement of PW5, Dr. Abhijeet Bala Shelke.
33. This witness is an autopsy surgeon to whom the corpse of the deceased was sent for
conducting the postmortem. He has simply stated in his testimony about the injuries
being ante mortem in nature and the shock due to burns the cause of the death. 39
Consequentially, his deposition as a witness testimony is not sufficient enough in order to
prove the guilt of the accused for the offence of the murder of the deceased.
(vi)
Statement of PW8, Atmaram Devidas Nemade.
34. This witness is a panch witness. He mentioned in his chief examination that he was
called in the house of the accused while he was passing from his house where he found
pieces of burnt saree. Police seized the articles in a plastic bag, prepared panchanama and
obtained his signature. He contends that that panchanama was then shown to him and the
contents read over to him were correct. Also, he stated that if the articles, i.e., burnt
pieces of saree, match box and plastic can, are shown to him then he can identify them,
but when the articles were later shown to him he was not able to identify them.
Moreover, in his cross examination he has stated that it is true that nothing was seized by
the police in his presence and they simply obtained his signatures on blank papers. 40 This
statement of his altogether raises a serious doubt on its credibility and is thus eligible for
being discarded since it fails to support any kind of evidence which would prove the guilt
of the accused.


10
-Arguments-
-Appellant-
DOCUMENTARY EVIDENCES:(i)
DYING DECLARATION-1 (AT EXH.22) AND DYING DECLARATION-2 (AT

EXH.34) GIVEN BY THE DECEASED, MANJU SOMNATH SATPUTE.
35. On 24/09/10, when the deceased was admitted in the burn ward no.25 of the Ambikapur
Hospital, her statement was recorded by Police Head Constable, Sharad Walunj at around
1.30pm. Later another statement was recorded at around 5.30 pm by Police Head
Constable, Subhash Shivaji.41
INCONSISTENCIES BETWEEN FIRST AND SECOND DYING DECLARATION:36. The reason as to why both the dying declarations given by the deceased cannot be relied
upon as the sole basis for the conviction is that they amount to contradictions existing
among themselves.
37. In State of Maharashtra vs. Sanjay S/o Digambarrao Rajhans42, the deceased suffered
95% burn injuries and the dying declarations she gave, constituted allegations against the
accused. But they lacked consistency therefore the court held that they were not reliable
and did not inspire the confidence of the court.
38. Firstly, the gravity of posing allegations on the accused in the instant case was much
more in the second declaration in comparison to the first one. In the first declaration she
initially stated that the accused always used to tell her to get money from her mother and
used to abuse, threaten and beat her as well. Then, when she asked him to take her to the
clinic he replied by saying that why was she shrieking, that he wouldnt take her to the
hospital and instead she should die. Being annoyed by this reaction she poured kerosene
available in the home on her body. Further she mentioned that she sustained burn injures
on her chest, abdomen, hands and legs and therefore she has a legal complaint against
him.43
39. Later in the second declaration she modified her statement by saying that right from the
solemnization of their marriage till the date of the incident, the accused used to
continuously trouble her to get money from her maternal home for construction of
house.44 She informed about the same to the people at her maternal house to which they
responded by saying that her husbands behavior would change and she should continue
her marital life. Further, she mentioned that he continued harassing her physically and
42 AIR2005SC97

11
-Arguments-
-Appellant-
mentally for all the years of their married life and then on the date of the incident when
she asked him to take her to the clinic he replied by telling her to get out of the house and
assaulted her with hands. Being annoyed by this, she poured kerosene over her and to
this he said that he would kill her and set her on fire. She claims that he tried to kill her
and therefore she has a legal complaint against him.
40. From the above mentioned statements, it is apparent that there are certain inconsistencies
between both the statements given by the deceased. The time difference between the
recordings of these declarations is approximate 3 hours. The police constable taking the
second declaration said that when he went near her in order to record her statement, she
was lying in bed calmly. Hence, it directs the appellants to the fact that she was in a
proper state of mind and had ample amount of time to reiterate her statements with
modifications which consequentially were of a greater intensity.45
41. Dying declaration should be of such a nature as to inspire full confidence of the Court in
its truthfulness and correctness, as the accused has no power of cross examination. 46 This
requisite of a dying declaration to be considered as reliable and admissible in a court of
law is absent and not satisfied in the present case since the deceased was beheld in a rage
of revenge against the cruelty which she claims that the accused has been posing upon
her from the past years of their marriage. She was under an impression that it is highly
probable that her husband will be convicted if she gives such a statement which shows
her utmost miserable condition, hence there was an addition in her second dying
declaration to make his conviction certain. Moreover, the question of assault also comes
into picture later.47
EFFECT OF INSTIGATION OR TUTORING ON DYING DECLARATION:42. Dying declaration should be free from any kind of instigation or influence else it puts a
question on the credibility of the statement made by the person. The statement made by
the deceased was instigated by her mother. This contention can be supported by PW1s
statement wherein he stated that throughout their way to hospital in jeep the mother of
the deceased was instigating her to give the statement against the accused and also she
was present when her dying declaration was being recorded.48
The following test can be devised in order to answer the question whether dying
declaration is true or not45 Ibid
46 Vasanta S/o Shrawan Gajbhiye v. State of Maharashtra through PSO,
2007(109)BOMLR2214
47 Supra Note 44
48 Supra Note 12

12
-Arguments-
-Appellant-
1) Whether the declarant had sufficient opportunity to observe and identify his
assailant;
2) Whether the capacity of the declarant to remember the facts stated, had not been
impaired at the time he was making the statement, by circumstances beyond his
control either due to nature of injuries or for any other cause;
3) Whether the statement has been consistent throughout if the declarant had several
opportunities of making a dying declaration apart from the official record of it.
4) Whether the statement had been made at the earliest opportunity and was not the
result of tutoring by interested parties;
5) Whether the statement made by the declarant is intrinsically sound and accord
with probabilities;
6) Whether any material part of statement is proved false by other reliable
evidence.49
43. In the case of Mona Das v. State of Assam, it was held that though a dying declaration is
entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. Such a power is essential for eliciting the truth as an obligation of oath
could be. This is the reason the Court also insists that the dying declaration should be of
such a nature as to inspire full confidence of the court in its correctness. The Court has to
be on guard that the statement of deceased was not as a result of either tutoring or
prompting or a product of imagination. The Court must be further satisfied that the
deceased was in a fit state of mind after a clear opportunity to observe and identify the
assailant. Once the court is satisfied that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any further corroboration. It cannot be
laid down as an absolute rule of law that the dying declaration cannot form the sole basis
of conviction unless it is corroborated. The rule requiring corroboration is merely a rule
of prudence.50
44. In the case of Krishna & Anr. vs. State of Rajasthan, the court held that there are a
number of dying declarations then the dying declaration made first in the point of time
should be given preference as there are lesser chances of tutoring or prompting by the
49Chandrawati v. State. 1996 CrLJ 975, S.C. SARKAR, COMMENTARY ON EVIDENCE,
DWIVEDI LAW AGENCY, 633, VOL. 1 (2nd ed. 2008).
50 2014CriLJ1704

13
-Arguments-
-Appellant-
interested parties. All the dying declarations made by the deceased should be consistent
and if there is any inconsistency then no reliance can be placed on these dying
declarations.51
Absence of Magistrate:45. Further, absence of Magistrate in recording dying declaration is a crucial point which the
state has neglected on their part.
46. In the case of Damodaran Damu vs. State, it was held that dying declaration made to a
Police Officer is also admissible under section 32 of the Indian Evidence Act, 1872 but it
is better to keep a dying declaration made to a Police Officer out of consideration until
and unless the prosecution satisfies the court as to why it was not recorded by a
Magistrate or at least by a doctor. The practice of investigating Officers themselves
recording dying declaration when it is possible by a Magistrate or a doctor will have to
be discouraged in order to avoid wrong declarations being put in.52
47. In the case of Bhanudas Bandu Thite v. State of Maharashtra, the accused was in
hospital for more than three days, it was surprising to note that her dying declaration was
not recorded by Special Executive Magistrate and this according to the court, created
doubt about genuineness of prosecution case.53
48. In the case of Smt. Madhu Bala v. State (Delhi Administration.), it was held that it is
mandatory for the investigating officer or other police officers to apply to Chief
Metropolitan Magistrate to depute some Magistrate for recording of dying declaration.54
49. Further, in the case of Basir Singh & Ors. v. State of Rajasthan55 it was said that dying
declarations taken by police head constables or the investigating officers require to be
discouraged. They are always interested in the success of the investigation, hence, they
cannot be said to be independent witnesses and the dying declaration recorded by them
should always be discouraged.56
50. In the case of Balak Ram v. State of U.P. it was observed that investigating officers are
keenly interested in the fruition of their efforts and though there is no assumption against
51 1996(2)WLN134
52 1990(1)KLJ258
53 2013(4)ABR61
541989(17)DRJ178 : 1990CriLJ790.
551994CriLJ2526.
56S.C. SARKAR, COMMENTARY ON EVIDENCE, DWIVEDI LAW AGENCY, 566,
VOL. 1 (2nd ed. 2008).

14
-Arguments-
-Appellant-
their veracity, it is not prudent to base the conviction on a dying declaration made to an
investigating officer.57
51. Recording of a Dying declaration by a Police Officer or Medical OfficerWhere a dying
declaration is recorded by a Police Officer or a Medical Officer, it shall, so far as
possible, ought to be attested by one or more of the persons who happen to be present at
the time.58
52. Dying declarations to be recorded by Judicial Magistrates(i) Where a person whose
evidence is essential to the prosecution of a criminal charge or to the proper investigation
of an alleged crime, is in danger of dying before the enquiry proceedings or the trial of
the case commences, his statement, if possible, be got recorded by a Judicial Magistrate.
When the police officer concerned with the investigation of the case or the medical
officer attending upon such person apprehends that such person is in the danger of dying
before the case is put in Court, he may apply to the Chief Judicial Magistrate, and, in his
absence, to the senior most Judicial Magistrate present at the headquarters, for recording
the dying declaration.59
Absence of fitness certificate:53. Also, before recording the dying declaration of the deceased, fitness certificate was not
obtained by the police from the doctor on duty which is a requirement in the sense that it
verifies the physical and mental condition of the patient that whether or not she is in a
proper and fit state of mind to know what she was going to say in her statement.60
54. In the case of Govind Hari Swamy & Ors. v. State of U.P., it was held that dying
declaration, which is not certified by doctor, shall not be acceptable.61
55. In the case of Ganpat v. State of Maharashtra whether deceased was in a fit state of mind
at the time of making any such statement was highly doubtful; and in the absence of
evidence of the doctor, who is supposed to have certified deceased's fitness to make a
statement at the material time, it is more probable than not that deceased was not in a fit
state of mind to make a proper, and rational statement.62
56. In the case of Paparambak Rosamma & Ors. v. State of Andhra Pradesh it was stated
that according to Section 32 of Indian Evidence Act, 1872, person making dying
57 1974CriLJ1486
58DYING DECLARATIONS,
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_P9S0NL6U.PDF
(last updated on Feb. 7, 2016).
59 Ibid
61 2011(6)ADJ563
62 2012BomCR(Cri)355

15
-Arguments-
-Appellant-
declaration in hospital before Magistrate, no evidence led to prove that person in sound
state of mind to make declaration, only evidence led was for his consciousness, medical
certificate not obtained for certifying state of mind of person making declaration, case of
circumstantial evidence should be proved beyond reasonable doubt, absence of
certificate raises doubt on state of person making declaration, dying declaration not
appears to be reliable and authentic.63
(ii)
Spot panchnama
Section 100 Persons in charge of closed place to allow search.

57. Section 100(4)64 before making a search under this chapter, the officer or other person
about to make it call upon two or more independent and respectable inhabitants of the
locality in which the place to be searched is situate or of any other locality if no such
inhabitant of the said localities is available or is willing to be a witness to the search, to
attend and witness the search, to attend and witness the search and many issue an writing
to them or any of them so to do.
58. In this present case five things were seized from the home of the accused by the Mhadur
police station65 and they are
a. Bluish liquid in a plastic can
b. Match stick containing match sticks
c. Partially burnt saree and blouse
d. T-shirt wrapped in paper.
e. Full pant wrapped in paper.
59. There were two independent witnesses to this panchnama, they were Atmaram Devidas
Nemade and Deepak Nemade.
60. Spot panchnama was made on 25/9/2010 and the incident happened on 24/09/2010 and
the house was in the open condition. So it is highly probable that the evidences would
have been tampered in one or the other way.
61. Shri Atmaram Devidas Nemade said that nothing was seized by police in his presence
and police simply obtained signature on the blank paper.66 When he was passing from
there police just called him in the house. Police called Deepak Nemade and Atmaram at
the same time. If we compare section 100 (4) with the present situation, in this case no
independent witness were there, police just got their signature on the blank paper.
63 1999(3)ACR2149(SC)
64 Section 100(4), THE CODE OF CRIMINAL PROCEDURE, BARE ACT, PROFESSIONAL BOOK
PUBLISHERS.


16
-Arguments-
-Appellant-
Independent witnesses only saw the articles already seized in the bag and they didnt see
the seizing of the articles. That is why the spot panchnama doesnt have any credibility.
62. Moreover, the object of the provision is to guard against possible chicanery and unfair
dealings on the part of the persons authorized to search and to ensure that anything
incriminating which may be said to have been found in the premises searched, was really
found there and was not introduced by the member of search party.67
63. The presence of witnesses at a search is always desirable and their absence will weaken
and may sometimes destroy the acceptance of the evidence as to the finding of the
article.68 Thats why in this case the findings of the articles are not the strong evidence.
64. It is obligatory on the part of the police officer to call on and get two or more respectable
inhabitants of the locality to be witnesses of the search. These witnesses must be called
before the search is started.69 In this case witnesses were called after the investigation had
started. So this is the serious lacuna in the investigation process.
(iii)
Arrest and seizure panchnama
65. Section 10270 of Cr.P.C explains about the procedure related to Seizure Panchnama of the
property which may be alleged or suspected to have been stolen or found under suspicion
of commission of offence.
66. It is mandatory for every police officer to report such seizure to the magistrate having
jurisdiction. Such police officer may give custody thereof to any person on his executing
Bond undertaking to produce before court u/s 102(3) Cr.P.C.
67 Abdullah v. Emperor, 27CriLJ73.
68 Sahib Singh v State of Punjab, AIR1997SC2417,
69 Ram Kishore v. State, 1990 CrLJ NOC 118(Delhi)
70 Section 102 - Power of police officer to seize certain property: (1) Any police officer may
seize any property which may be alleged or suspected to have been stolen, or which may be found under
circumstances which create suspicion of the Commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the
seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having
jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court 2 [or
where there is difficulty in securing proper accommodation for the custody of such property, or where the
continued retention of the property in police custody may not be considered necessary for the purpose of
investigation], he may give custody thereof to any person on his executing a bond undertaking to produce the
property before the Court as and when required and to give effect to the further orders of the Court as to the
disposal of the same.
Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the
person entitled to the possession of such property is unknown or absent and the value of such property is less
than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police
and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of
such sale.

17
-Arguments-
-Appellant-
67. Sub section 3 has been inserted in 1978 to remove a lacuna in the law in the matter of
requirement of the police to forthwith report the seizure of property to the magistrate.71
68. In this case, the police asked the accused on 28/09/2010 that what you wore on
24/09/2010 and accused gave clothes to the police on 28/09/2010 which he wore on
24/09/2010 in the presence of the two panchs. In Exhibit no. 32 API said that accused
presented the cloth to him which was wore by him on 24/09/2010. 72 This seems little
illogical that accused is giving the evidence against him.
69. We can also raise the doubt on the credibility of the independent witness because the
respondents have failed to prove that the witnesses are independent and respectable. We
cannot verify that whether the witnesses are independent or not. So we cannot accept that
clothes of somnath smelled of kerosene.
(iv)
Inquest panchnama
70. Section 17473 of Cr.P.C, - This will be done by the officer in charge of police station or
some other police officer specially empowered by the state government in that behalf
receives information that a person has committed suicide or has been killed by another
(homicidal) or has died under circumstances raising a reasonable suspicion that some
other person has committed an offence, he shall immediately give intimation thereof to
the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise
directed by any rule prescribed by the State Government, or by any general or special
order of the District or Sub- divisional Magistrate, shall proceed to the place where the
body is.
71. In this present case the Mhadur police station has power to investigate the matter under
Section 156(1)74 of the Cr.P.C, thats why Mhadur Police station has power to make the
inquest panchnama but this inquest panchnama was prepared by the Sharad Walunj who
was not authorized by law to make the inquest panchnama. He was also not informed the
nearest executive magistrate about the panchnama.
71 S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS

BUTTERWORTHS WADHWA NAGPUR, 303, VOL. 1 (10th ed. 2012).
72 Supra Note 8, P-18
73 Section 174, THE CODE OF CRIMINAL PROCEDURE, BARE ACT, PROFESSIONAL BOOK
PUBLISHERS.
74 Section 156(1) of Cr.P.C.:Police officers power to investigate cognizable case.- (1) Any officer in charge of
a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having
jurisdiction over the local area within the limits of such station would have power to inquire into or try under the
provisions of Chapter XIII.

18
-Arguments-
-Appellant-
72. It was prepared under the observation of independent panchas Mrs. Saraswati Lokhande
and Digvijay Patil by the sharad walunj. Sharad Walunj was the police head constable
and he was not police officer so he is not authorized by the law to prepare the inquest
panchnama.
73. Sharad walunj was the Police Head Constable in the Ambikapur chowky and the
deceased belonged to the area which was under the jurisdiction of Mhadur police
station75, so appropriate police station would be Mhadur police station and moreover it
should have been done by the investigating officers and not police constables.
74. The inquest report cannot be substantive evidence but it may be used for corroboration of
the evidence given by the police officer making the report.76
75. The object of the proceedings under section 174 is merely to ascertain whether a person
has died under suspicious circumstances or as unnatural death and if so what the apparent
cause of the death is. The report prepared is indeed aimed at serving a statutory function,
to lend credence, to the prosecution case.77
76. The inquest report cannot be substantive evidence, but it may be used for corroboration
of the evidence given by the police office making the report.78 An investigation under
Section 174 is for the limited purposes namely for discovering whether in a case the
death was accidental, suicidal or caused by animal. 79 The scope of inquest proceedings is
limited to ascertain the cause of death.80 The opinion given in the inquest report does not
attain finality because the dead body has to be subjected to post mortem examination
which is done by medical expert and is more authentic because police officer is not the
medical expert.81
77. So by this above arguments and observation of Indian Courts we can say that the Inquest
Panchanama prepared by the Sharad Walunj is of no use and it is not reliable at all. This
Inquest Panchnama cannot be used against accused and it has not much substantiate
thing to prove against accused.
75 Supra Note 8, P-7

76Mukanda and Ors. v. State, 1957CriLJ1187.
77Meharaj Singh v. State of U.P.(1994) 5 SCC 188 at 196: 1994 SCC (Cri) 1391.
78Supra Note 43
79 Ganesh Yadav v. State of U.P., 2009CriLJ(NOC)1008(All)
80 Rama Shankar v. State of U.P., 2008 CriLJ129(132)
81Baldeo and Anr. v. State of U.P., 2004CriLJ2686.

19
-Arguments-
-Appellant-
[II] THE JUDGMENT PASSED BY THE TRIAL COURT WAS NOT APPROPRIATE.
2.1 ERRONEOUS JUDGMENT
78. The counsels on behalf of the appellant humbly submits before this Honble bench of the
High Court that the oral judgment and the order passed by the Sessions Court is an
example of how miscarriage of justice can be done by any court of authority to which
every kind of party look upon for deliverance of justice.
79. The procedure carried out (including the investigating process) to reach the judgment
after conducting the entire trial was in itself not appropriate.
i. PROCEDURAL LAPSES IN THE TRIAL

20
-Arguments-
-Appellant-
80. Starting from the work done by the police head constables in recording the dying
declaration of the deceased till the completion of the investigation process in carrying out
panchanama, seizure, etc. undertaken by the police inspectors, the entire procedure was
ascertained with various lapses. These lapses range from being minor-to-major which as
a whole constitutes the error-omission of formalities.
(i) By PW2
81. On the date of the incident 24/09/2010, at around 1.20 pm, police head constable, Sharad
Walunj was given the information about the admission of the deceased due to burn
injuries in the burn ward of the Ambikapur hospital and was asked to immediately take
the necessary steps.82 Firstly, there are uncertainties in the time line with regards to the
entire process of his recording the dying declarations. As per the facts of the case, the
deceased was taken to the hospital at around 1.15pm and admitted in the burn ward at
around 1.20pm. Surprisingly, he was also informed about the incident at 1.20pm on
receiving which he reached near the burn ward within five minutes only, i.e. at around
1.25pm, and when he reached near her, the Medico Legal Case papers were already
prepared. Also, he stated in his testimony that while he was recording her statement, no
relatives of her met him, but at the same time, in the Indoor Case papers there is a
mention of the presence of the mother of the deceased in the entire schedule, i.e. history,
of the date the incident while her dying declaration was being recorded.83
82. The above mentioned facts pose distrust and a sense of unreliability on the procedural
aspect of the statement taken by this particular police constable.
83. He had to record her statement after confirming that whether she was in a fully conscious
state to make a statement or not. He was given an oral confirmation for the same and
then he started to record the statement.
Before recording the statement:84. An error which he made before recording her statement is that he didnt obtain any
fitness certificate though it was possible for him to do so. 84 He mentioned in his
testimony that despite of having an opportunity to obtain a fitness certificate from the
doctor with respect to the mental and physical condition of the deceased, he did not do
so. He wouldnt have stated this if it had been the case that the doctor was busy to give
him the same or it was an omission of duty on their part.
82 Supra Note 75

21
-Arguments-
-Appellant-
85. In absence of any certificate by doctor prior to recording of dying declaration that she
was in a fit mental state to give declaration in a coherent and convincing manner, no
reliance can be placed on said statement especially when it is mentioned in her autopsy
report that she had 90% superficial and deep burns. It is further noted that said dying
declaration was not recorded in presence of doctor nor there was evidence to that effect
and hence it would be difficult to rely upon such a dying declaration in total absence of
any evidence regarding mental and physical condition of the deceased.85
86. Wife died due to severe burn injuries. Dying declaration indicating husband as accused.
Deceased suffered 100% burn injuries. Absence of doctors certificate to show deceased
was fit to make statement. In absence of fitness certificate, dying declaration not
accepted.86
87. Moreover, he stated that it was not felt necessary by him to call the Magistrate of the
concerned jurisdiction to record the patients statement though it was possible for him to
do so.87 Even if it was difficult for him at that particular moment to inform the Magistrate
he could have done so later on for the simple reason that the patient had not died till the
next four days. This is a procedural on his part, firstly in the context of dying declaration,
and secondly, after taking the inquest panchanama also he didnt submit its report to the
Magistrate.
At the time of recording:88. Further at the time of recording the statement, her treatment was going on, and she was
yelling and screaming due to pain when he reached near her and nobody was present
there.88 This raises a doubt on the fact that was she actually in a proper condition to make
a statement that he straightaway reached her bed in the ward to record her statement.
After recording the statement:89. Subsequently, after recording the statement, he did not make the attestation of the toe
impression taken of the deceased despite of having the opportunity to do so. 89 This is an
85 Govind Hari Swamy v. State of U.P., 2011 Cri LJ 4486 All, JUSTICE C.K. THAKKER &
MRS. M.C. THAKKER, LAW OF EVIDENCE, WHYTES & CO., 823, VOL. 1 (2013).
86 Vasanta S. Gajbhiye v. State of Maharashtra, 2008 Cri LJ NOC 543 Bom: 2008 (2) AIR
Bom, JUSTICE C.K. THAKKER & MRS. M.C. THAKKER, LAW OF EVIDENCE,
WHYTES & CO., 833, VOL. 1 (2013).
87 Supra Note 84
89 Supra Note 84

22
-Arguments-
-Appellant-
omission on his part because of the simple reason that he could have done so and this in
turn creates incertitude towards the credibility of the declaration given by the deceased.
(ii) By PW4
90. Carrying on with the procedure, a second dying declaration was recorded by another
police head constable, Subhash Shivaji Awhad of Mhadur police station which had
jurisdiction of the place of the incident (house of the accused and the deceased). 90 On
24/09/2010 at around 3pm he got information about the incident from a Senior Police
Inspector, Mr. Mehere and was instructed to record the patients statement. On receiving
the same, at around 5.30pm he reached the Ambikapur hospital which doesnt fall in the
territorial jurisdiction of Mhadur police station. After reaching near her ward he made
inquiry about her physical and mental health status with the medial officer on duty so that
he could record her statement. Like the previous head constable, he also made certain
errors in the procedure while performing his duty of recording statement, which are
mentioned belowBefore recording the statement:91. Firstly, he didnt make the entry of his arrival in the specific burn ward and was not
simply able to explain its condition and location before the court. He didnt mention the
name of the doctor from whom he enquired about the condition of patient. He didnt see
the medico legal certificate which was the most important thing. 91 He didnt made entry in
the medical case papers of patient as well as medical papers of ward no. 25.
92. Further, he didnt obtain fitness certificate from the doctor with regards to the health
condition of the patient which is a prerequisite for recording dying declaration and an
important aspect of their procedure in order to eliminate any kind of arbitrariness.
93. He stated in his testimony that before recording her statement he got the knowledge that
the patient was going to lodge a complaint.92 This is specious to a certain extent in the
sense that he wasnt aware if any other police authority had come prior to him in order to
inquire about the incident and record patients statement if required. This was a part of his
legal formality to be done since he knew that there was a police chowky within the
hospital premises. He should have inquired about it either with the police or with the
doctors.
At the time of recording:90 Supra Note 8, p-20

23
-Arguments-
-Appellant-
94. He didnt call the magistrate to record her statement though it was possible for him to call
the magistrate.93 This shows his negligence towards his duty since even after recording
the statement he could have done this part knowing the fact that it was not an emergency
case to the extent that it was not feasible to call the Magistrate at that very particular
moment. Else he shouldve got the signature of an independent witness on the dying
declaration if the Magistrate was not there. Further, dying declaration should be in
question answer but he took this in the statement form. To this, there is discrepancy in his
testimony because he stated that in his career up till now he had recorded about 100 dying
declarations and he is aware that the declaration is to be recorded in question answer
form, but on the contrary he said that they never used to record dying declarations instead
they used to record complaints.94
After recording the statement:95. He said that he got the signature and endorsement of the doctor at the end of the dying
declaration but the same does not appear in the documentary evidence presented to the
court, i.e. Exh. 34. Further, he did not attest the thumb impression of the patient despite of
having an opportunity to call somebody (independent witness) to do so after its
completion. No attestation of impressions has raised a doubt on its reliability. With
regards to taking of thumb impression, he got the impression of her left hands thumb but
subsequently in his testimony he mentioned that in the ward her body was covered in a
cage from where only her face and feet were visible. 95 Hence this raises a question on the
reliability of his statements.
(iii) By PW9 and PW7
96. The investigation process of the incident was carried out by Police Inspector Vasudeo
Shridhar Pote and Assistant Police Inspector J.M.Gunjal, both of them attached to
Mhadur police station. Initially, the investigation was conducted by the police inspector
who visited the spot of the incident on 25/09/2010 to prepare spot panchanama.96
97. He mentioned in his statement that he did not feel necessary to visit the spot and prepare
the panchanama on 24/09/2010 during the night time, i.e., he visited the spot after 25-26
hours had passed away, and when he reached there witness Rukmini was present there
93 Ibid
94 Ibid
95 Supra Note 92

24
-Arguments-
-Appellant97
and the house was in open condition. Moreover, except the spot of the incident, he did
not inspect the surrounding premises.
98. It is very apparent from all the above mentioned facts that the police inspector has created
enormous amount of procedural lapses. Firstly, he should have reached the spot on the
same day of the incident itself irrespective of the fact that it was night time or day time
because it was certain and highly probable that tampering with the evidences might have
taken place during all that time when he was not there. Secondly, he did not properly
investigate the incident premises.
99. Further when it comes to the work done by the assistant police investigator, he also
visited the spot of the incident on 25/09/2010. After he had done the seizure of the clothes
of the accused on 28/09/2010 he did not send the report to the chemical analyzer
immediately despite of having the opportunity to do the same. 98 When he received the
inquest panchanama made by head constable Walunj, who also took the first dying
declaration, he neither inquired about the statement taken nor about the report being
submitted to any senior officer or not. Instead he was supposed to carry out the inquest
panchanama himself as a part of his duty, under Section 174(1)99 of CrPC.
100. Moreover, both the inspectors never visited the hospital in the span of four days and
thereby never saw the indoor case papers which were the source of the inquest
panchanama.100
101. Hence, the investigating officers have not done justice to their duties and have simply
tried to dispose of the case as soon as possible.
ii.
WRONG INTERPRETATION OF FACTS AND EVIDENCES OF THE

CASE BY THE SESSIONS COURT
97 Ibid
99 Section 174. Police to enquire and report on suicide, etc.:(1) When the officer in charge of a police station
or some other police officer specially empowered by the State Government in that behalf receives information
that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an
accident, or has died under circumstances raising a reasonable suspicion that some other person has committed
an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold
inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or
special order of the District or Sub- divisional Magistrate, shall proceed to the place where the body of such
deceased person is, and there, in the presence of two' or more respectable inhabitants of the neighborhood, shall
make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures,
bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon
or instrument (if any); such marks appear to have been inflicted.
100 Supra Note 98

25
-Arguments-
-Appellant-
102. The judgment given by the trial court is an erroneous one since it has failed to
appropriately and reasonably interpret the facts of the case and simultaneously the
evidences also which were produced by the respondents in order to prove their case.
103. Initially the judgment misses out on the details of time as mentioned the facts as to
what act happened at a certain point of time. It said that the deceased was shifted to the
hospital and admitted in the burn ward at around 1.30 pm after which intimation was
given to the police by hospital authority. But as per the facts of the case and the
statements given by all the witnesses, by 1.30 pm the dying declaration of the deceased
was already taken since the police was informed about the incident by 1.20pm itself after
which he reached the hospital.101 Then many times that it mentions that the initial
investigation was conducted and spot panchanama was prepared by the police inspector
Mehere, rather it was prepared by police inspector Vasudeo who later on gave the case to
his assistant J.M.Gunjal for further investigation.
104. Further when it started with the substantive part of the case, it failed to interpret a
specific defense of the appellants that the deceased committed suicide by setting herself
on fire, and thereby said that he has been falsely implicated at the instant of the mother of
the deceased.102 When the respondents endeavored to establish that the accused had
committed homicidal death, which the appellants had seriously challenged, the court
considered the cause of the death as a crucial point to be figured out for which it felt
necessary to examine the evidences on record.
Dying Declaration:105. First in the list it dealt with the most important evidence, i.e., dying declaration of the
deceased with which it was satisfied that the respondents case rests mainly upon these
declarations. Although it admits that two different declarations were recorded by two
police officers, which raises the level of suspicion, it misinterprets them at the end to be
consistent with each other and true and voluntary. The court accepts the absurd argument
of theirs that law does not require dying declaration to be recorded by Magistrate only,
there is no prescribed format of it and obtaining fitness certificate before recording it is
also not necessary.103 Rather it should have discarded this by stating that the law requires
its applicability as per the differentiated facts of each case and not as a sole principle to
be applied in each case without looking into its veracity. The reason for doing this is that
both the dying declarations suffer from infirmities as it is very apparent for the court to
101 Supra Note 8, p-7, 66

26
-Arguments-
-Appellant-
observe that the gravity of posing allegations against the accused rose to a significant
level during her second dying declaration as a matter of having sufficient time in
between the recordings of the two statements when she made all the modifications.
Moreover, the respondents also failed to justify the absence of Magistrate by merely
saying that it is not a requirement of law that the Magistrate should be present to record
the dying declaration. Instead this is justified only in cases of emergency where it is
simply not possible to wait for the Magistrate to come and record the statement,
however, in the present case, the deceased was alive till four days after being admitted in
the hospital and there were ample opportunities with the respondents to call and inform
the Magistrate, which they didnt do thereby committing negligence.
106. In one of the judgments referred by the sessions court, which laid down certain
propositions with regards to the admissibility of dying declaration 104, like- Where the
dying declaration is suspicious, it should not be acted upon without corroboration
evidence. , and If after careful scrutiny the court is satisfied that it is true and free from
any effort to induce the deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it basis of conviction even if there
is no corroboration., the court failed to make the correct interpretation. In the instant
case, the investigation officer didnt find any substantive evidence to corroborate with
the dying declaration. There are two different dying declarations which created suspicion
because of contradictions.
107. Moreover the statement of PW1 and DW1 show that the accused was standing outside
the house at the time of offence. 105 Further, her statement is made under the influence of
the mother since she was there in the jeep instigating her to give statement against the
accused and also when the statement was given to the police, which was later verified by
the doctor and the indoor case papers.106 To corroborate dying declaration the police
didnt find any relevant witness or substantive evidence pertaining to the case.
108. The cases of Balbir Singh v. State of Punjab107 and Kulwant Singh v. State of
Punjab108, referred to by the respondents and relied upon by the court as well, were
wrongly interpreted by saying that there is no requirement of law that the dying
declaration should be the recorded by Magistrate, and at the same time the police officers
105 Supra Note 8, p-6, 60
106 Supra Note 8, pp-6, 34, 39
107 AIR2006SC3221.
108 (2004)9SCC257

27
-Arguments-
-Appellant-
are not prevented by law from recording the dying declaration.
109
But in actuality, the
concerned Court held that police is exempted to call the Magistrate where it is impossible
to call the Magistrate. However, in the instant case, police had the opportunity to call the
Magistrate since she died after 3 days and in between police could have easily called the
magistrate and took her statement. Hence, the above cited cases nowhere support the
case of the respondents. Moreover, in plethora of judgments, the Supreme Court have
given guidelines that police should call the Magistrate if it is possible for them to do so.
Also, both the dying declarations in the instant case were recorded in form of statement
when they should have been recorded in question answer form.
109. In reply, the appellants relied upon the case of Shaikh Rafique vs. State of
Maharashtra, wherein the court held that dying declaration could not be relied upon if it
was not recorded in the manner it has to be recorded. 110 But in the instant case, the court
interpreted it differently and considered that all the procedures can be skipped if the
concerned party feels like doing it and work according to their own whims and fancies.
There were many flaws in the procedure of taking dying declaration still the session
court ignored them, and also discarded the above cited case by stating it to be irrelevant
for the appellants case to help.111
110. In deciding the core issue whether the dying declarations recorded suffer from any
serious infirmity or not, the respondents further cited the case of Laxman vs. State of
Maharashtra112, wherein the Court considered that the absence of medical fitness
certificate can be valid excuse and a certificate by the doctor is essentially a rule of
caution, but the point to be noted is that there the Magistrate himself took the declaration
and that is why the dying declaration was heavily relied upon by the judge. However, in
the instant case, there was no role of the Magistrate and there was no fitness certificate
obtained, thereby making both the cases different. Also the rule of caution was not
applied by the Session Court in this case. Hence, it was misinterpreted by the Court and
should have been discarded instead of relying upon it.113
111. Subsequently, when the appellants relied upon Paparambak Rosamma vs. State of
Andhra Pradesh114, wherein the concerned court said that dying declaration cannot be the
110 2008CriLJ1592(SC).
112 AIR2002SC2973.
113 Supra Note 8, p-80, 81
114 1999SCC(Cri)1361

28
-Arguments-
-Appellant-
sole basis for the conviction and also said that court has to consider the evidence
supporting it. But here, the Court blindly considered the dying declaration as the sole
basis for the conviction115 and also justifies its interpretation, thereby, discarding this case
relied upon by the appellants.
Seizure of clothes:112. The court has failed miserably to in making the correct interpretation of the evidences
adduced by the respondents in order to prove the presence of the accused at the spot of
the incident. It unjustifiably bought the argument of the respondents wherein they said
that by adducing the evidence of the assistant police inspector J.M.Gunjal and panch
witness Avinash Wagh, the respondents have proved the seizure of clothes of accused.116
113. Firstly, the panch witness mentioned above has nowhere in the case been examined
for recording of his testimony. Therefore the relevancy upon the same becomes
questionable.
114. Secondly, it has already been justified by the appellants in their submission above,
that the inspector had committed many procedural lapses while doing the arrest and cloth
seizure due to which his evidence and testimony cannot be relied upon.117
Factum of Death:115. When the case reached the point of proving and deciding the factum of death and its
cause, the court failed to accept and appropriately interpret the defense of suicidal death
of the deceased taken by the appellant, thereby unreasonably declaring it as homicidal
death118 and without ascertaining any justification for the same.
116. When the appellants relied upon the case of Bhanudas Bandu Thite vs. State of
Maharashtra119, in context of the issue of striking down of the word suicidal and
replacing it with the word homicidal, the court here considered it of having no
consequence of relying upon it and therefore discarded it to be irrelevant. In the above
mentioned case, when the suicidal word was changed to homicidal afterwards, the
court considered the initial placing of word only, i.e., suicidal and did not consider the
substitution made I the medical papers. However, in the instant case, the court failed to
interpret this case appropriately. Although it accepted that the change is made but then
115 Supra Note 8, -81

119 2013ALLMR(Cri)3087

29
-Arguments-
-Appellant-
stated that it is still not fatal for the case of respondents.
120
On one side where they
accepted the fault of the doctor, on the other side they said that it is a valid excuse since
the doctor has accepted in his oral evidence that he had made the said changes, but
simultaneously the court did not take into the consideration the high probability of the
doctor making such changes after getting influenced by the deceased and her mother.
117. Further, the court considered the evidence of the autopsy surgeon and was convinced
with the fact that the respondents have proved that the death of the deceased was caused
due to burn injuries. It is an undisputed fact that the cause of death was burn injuries
sustained but nowhere the respondents and the court justified that the burn injuries were
due to homicide.121 They failed to interpret the factum of death and to intelligibly observe
that there were no external injuries on the body of the deceased apart from those suffered
due to burns, which makes it apparent that had it been the case of homicide, the deceased
would have suffered other injuries as well as a matter of resisting the act, if done by the
accused. But here it is an apparent case of suicide where the deceased suffered only those
injuries which were a consequence of her own act and not by any other external acts.


30
-Arguments-
-Appellant-
PRAYER
In light of the facts stated, issues raised, arguments advanced and authorities cited, it is
submitted that the honorable Sessions Court be pleased In light of the facts presented, issues raised, arguments advanced and authorities cited the
Counsel for the Appellant humbly prays before this Honble Court that it may be pleased:
1. To declare that the Appellant has been unjustly convicted for the offence punishable
under Section 302 of Indian Penal Code, 1860;
2. To declare that the Judgment passed by the Sessions Court is inappropriate;
3. To acquit the accused of all the charges;
Or pass any other order or make directions as the Honble Court may deem fit to meet the
interest of justice, equity and good conscience in the instant case.
And for this act of kindness, the Appellant shall duty bound forever pray.
Respectfully Submitted on Behalf of the Appellants;
COUNSELS FOR
APPELLANT
31

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-Arguments-

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

Under Section 374(2) of the Code of Criminal Procedure

SOMNATH RAJIV SATPUTE..APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

1. Abdullah v. Emperor, 27 CriLJ 73.

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

10. Ganesh Yadav v. State of U.P., 2009CriLJ(NOC)1008(All).

1. C.D. FIELD, COMMENTARY ON LAW OF EVIDENCE ACT, 1872, DELHI LAW

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

PROCEDURE, EASTERN BOOK COMPANY (6th ed. 2014).

BUTTERWORTHS, VOL. 5(2) (2006).

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

(10th ed. 2014).

1. APPRECIATION OF EVIDENCE OF HOSTILE WITNESSES, MAHARASHTRA

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

%20second%20work%20shop%20criminal%20dated%2010-01-15.pdf, (last updated

http://medind.nic.in/jal/t14/i3/jalt14i3p281.pdf, (last updated on Feb. 2, 2016).

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

THE APPELLANT HAS MOVED AN APPEAL BEFORE THE HONBLE HIGH

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

MEMORANDUM on behalf of APPELLANT

8TH LOKMANYA TILAK APPELLATE NATIONAL MOOT COURT COMPETITION

1. WHETHER THE ACCUSED WAS RIGHTLY CONVICTED FOR THE

MEMORANDUM on behalf of APPELLANT

1. THE ACCUSED WAS NOT RIGHTLY CONVICTED FOR THE OFFENCE

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

12 Supra Note 8, p-6

MEMORANDUM on behalf of APPELLANT

Statement of PW1, Vijay Nemade.

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

28. Testimony of interested witnesses cannot be altogether discarded it should be

Statement of PW6, Dr. Pandit Swami, treating doctor of Manju

MEMORANDUM on behalf of APPELLANT

Statement of PW3, Rohan Pravin Chandra.

Statement of PW5, Dr. Abhijeet Bala Shelke.

Statement of PW8, Atmaram Devidas Nemade.

38 Supra Note 8, p-16

MEMORANDUM on behalf of APPELLANT

DYING DECLARATION-1 (AT EXH.22) AND DYING DECLARATION-2 (AT

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

MEMORANDUM on behalf of APPELLANT

Section 100 Persons in charge of closed place to allow search.

65 Supra Note 8, p-4

MEMORANDUM on behalf of APPELLANT