Beruflich Dokumente
Kultur Dokumente
DETERMINATION
v.
State of Delhi.....Prosecution
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................ ERROR! BOOKMARK NOT DEFINED.
INDEX OF AUTHORITIES ................................................................................................................. 3
LIST OF ABBREVIATIONS................................................................................................................ 6
STATEMENT OF FACTS ................................................................................................................... 8
STATEMENT OF JURISDICTION ....................................................................................................... 9
ISSUES RAISED .............................................................................................................................. 10
SUMMARY OF ARGUMENTS .......................................................................................................... 11
ARGUMENTS ADVANCED .............................................................................................................. 12
I.
THE EVIDENCE BROUGHT BEFORE THE COURT CANNOT BE RELIED UPON BY THIS COURT. ... 12
A.
B.
C.
D.
Statements made to the Police do not constitute valid Admissions for this Court ..... 18
E. Circumstantial Evidence does not concretely prove guilt of the defendants ................. 20
II. THE CHARGES FRAMED CANNOT BE PLACED AGAINST THE DEFENDANTS. .......................... 22
A.
B.
The charge of Kidnapping under Section 364 does not hold ..................................... 23
C.
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INDEX OF AUTHORITIES
ARTICLES REFERRED
1.
E.A.M. Graham, E.E. Turk & G.N. Rutty, Room Temperature DNA Preservation of Soft
Tissue for Rapid DNA Extraction: An Addition to the Disaster Victim Identification
Investigators Toolkit?, FSI Genetics (2008).
2.
3.
4.
BOOKS REFERRED
1. SUDIPTO SARKAR, LAW OF EVIDENCE (Wadhwa Nagpur Publications eds., 16th
ed. 2008).
2. WOODROFFE AND AMIR ALI, LAW OF EVIDENCE (Lexis Nexis Butterworth eds.,
19th ed. 2013).
CASES REFERRED
1. Badshah v. State of UP (2008) 3 SCC 681.
2. BN Chobe v. Sami Ahmad, (1961) 1 Andh LT 32-34.
3. Bodh Raj vs. State of J&K AIR 2002 SC 3164.
4. Commissioner of Police, Delhi v.Narender Singh, AIR 2006 SC 1800.
5. Dayabhai v. State of Gujarat, AIR 1964 SC 1563.
6. Duasan Bhoi v. State of Orissa, W.P.(C) No. 423 of 2013.
7. Fouzdar Rai v. Emperor, AIR 1918 Pat 193.
8. Hanuman v. State of Rajasthan 1994 Supp (2) SCC 39.
9. Jatinder Singh Bhatia v. State, 153 (2008) DLT 633.
10. Jhapasa Kabadi v. State of Bihar AIR 2002 SC 312.
11. K Ambazhagan v. Superintendent of Police, AIR 2004 SC 254.
12. Kalawati v. State of Himachal Pradesh (1953) SCR 546.
13. Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773.
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LIST OF ABBREVIATIONS
ABBREVIATION
FULL FORM
A.P.
Andhra Pradesh
AIR
Andh.
Andhra
BomCR
Cal.
Calcutta
Cent.
Center
Cong.
Congress
Cr.
Criminal
Cri
Criminal
Cri. L.J.
CRL.A
Criminal Appeal
Ctr
Control
DB
Division Bench
DLT
DNA
Deoxyribonucleic Acid
FSI
Int'l
International
J&K
Lab
Laboratory
LT
Law Tribunal
Mad
Madras
MP
Madhya Pradesh
No.
Number
Pat
Patna
Regina
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Rangoon
SC
Supreme Court
SCC
Sci
Science
SCR
Supp
Supplementary
T.N
Tamil Nadu
UP
Utter Pradesh
US
United States
v.
Versus
vs
Versus
W.P.
Writ Petition
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STATEMENT OF FACTS
1.
Trisha Das was born to Rekha Das alias Rekha Mukherjee and Siddhartha Das. After her
parents split, Rekha moved to Delhi to study computers and Rekha was raised by her
grandparents. Rekha later was in a relation with Suhas Kumar and once that broke, she
married Jacoob Mukherjee.
2.
On Rekhas request, Trisha moved to Delhi and obtained a degree from St. Xaviers college
and started working for KVS infrastructure in 2009 where she met Ruhi, who became a close
confidant. Ruhi was in touch with Trisha until Rekha was arrested. After joining Delhi
Metro One in 2011, she got into a relation with Jacoob Mathews son, Shobhit.
3.
Trisha sent in her written resignation on 24th April 2012 and sent a breakup message to
Shobhit Mukherjee. Rekha maintained that Trisha had gone to the US and therefore no
missing FIR was filed. Following this, Shobhit approached the Lajpat Nagar police station on
30th April seeking to register a FIR. On Shobhits insistence, the police went to Rekhas
residence where they were told that Trisha was in the US. Later Rekha went to the station to
report that due to Shobhits stalking, Trisha left for the US.
4.
On the tip off of Rekha harming her daughter, she was placed under surveillance. However
the arrests were made on 21st August 2015 when her driver, Shyam Sahu was arrested for
possessing arms and he allegedly confessed to Trishas murder. There was a body found in
2012 near the Kausani forests and was unidentified till that point of time. An FIR was filed,
where it was alleged that Rekha had planned the murder and was assisted by Suhas Kumar.
5.
A DNA test was allegedly carried out, whereby it was indicated that the dead body was that
of Trisha Das. In the investigation, the Narcoanalysis allegedly corroborated the FIR, and
Kumars phone was allegedly traced back to Kausani forrest area on 25th April, 2012. Rekha
was arrested on 25th August for the murder and on the following day, Suhas was also arrested
and allegedly confessed to the crime.
6.
The car was not found, nor the weapon. There are no-eye witnesses to the event whatsoever.
There is no substantive evidence to the crime, only retracted statement recorded by police in
its custody to which all the people involved later denied in the court of law.
7.
The Prosecution has now approached the Honourable District and Sessions Court for
prosecuting the accused under Sections 302, 364, 201, 120-B, 34 and 313 of the Indian Penal
Code.
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STATEMENT OF JURISDICTION
The Prosecution has approached the Honble District Court under Section 226, Chapter XVIII of
the Code of Criminal Procedure, 1973 in the present matter. The Defense submits to the
jurisdiction of the Court.
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ISSUES RAISED
WHETHER THE EVIDENCE BROUGHT BEFORE THE HONBLE COURT CAN BE RELIED UPON BY
THIS COURT.
WHETHER
THEM.
THE
DEFENDANTS
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SUMMARY OF ARGUMENTS
I.
THE
COURT.
Firstly, DNA results alleging the identity of the deceased to be Trisha Das may not be admitted
by this court;
Secondly, Narco analysis of the defendants may not be relied on by the court for the statements
therein;
Thirdly, the statements made by the hostile witness Rambahadur may not be used by the
Prosecution to prove its case;
Fourthly, the circumstantial evidence that is sought to be brought by the Prosecution does not
concretely indicate the commission of crime by the defendants; and
Lastly, the confessions of the defendant Sahu to the police may not be used by the court as
corroboration of the circumstantial evidence.
II.
THE DEFENDANTS
THEM.
Firstly, the defendants are innocent of the charge of Murder of the deceased under Section 302
of the IPC;
Secondly, they plead innocent of the charge of Kidnapping with the intent of murder, under
Section 364;
Thirdly, they did not cause the disappearance of any material evidence to the case, as charged
under Section 201;
Fourthly, they did not take part in a criminal conspiracy to commit crimes, under Section120-B;
Fifthly, they lacked any common intention to commit crime under Section 34;
Finally, Rekha must be acquitted of the charge of causing the miscarriage of the deceased Trisha
Das, as under Section 313 of the IPC.
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ARGUMENTS ADVANCED
I.
THE
COURT.
The Defense submits that firstly, the DNA results alleging the identity of the deceased to be
Trisha Das may not be admitted by this court [A], and also that the Narco analysis of the
defendants may not be relied on by the court for the statements revealed therein [B].
Furthermore, the statements made by the hostile witness Rambahadur may not be used by the
Prosecution to prove its case [C], while the confessions of the defendant Sahu to the police may
not be used by the court as corroboration of the circumstantial evidence [D]. Lastly, the
circumstantial evidence that is sought to be brought by the Prosecution does not concretely
indicate the commission of crime by the defendants [E].
A. DNA TEST AS EVIDENCE IS INADMISSIBLE IN THE PRESENT CASE
Although DNA tests are admissible under Section 45 of the Evidence Act, its acceptance and
reliability is for mere medical tests and not concrete evidence. In cases of murder, the Supreme
Court has accepted DNA evidence as admissible but not sufficient for a conviction.1 The
Supreme Court reiterated its stand on DNA evidence by stating that no conviction can be done
by the court solely on the basis of DNA evidence. At the same time, it held that if the DNA
evidence is in the negative, in such cases, the case will fall.2
In cases of extreme fire impact, only hard tissues may be left for DNA analysis. DNA extracted
from burnt bone fragments may be highly degraded, making an amplification of genetic markers
difficult or even impossible. Identification via DNA analysis is reliably and reproducibly
possible from well preserved and semi-burnt bones.3 Usually samples collected for DNA
identification are usually stored at -20C to halt the degradation processes and then preserved
over a 12-month period of to allow DNA profiling.4
However, it is submitted that in the case at hand, the corpse was left in the forest for three years,
and there was absolutely no concept of preservation of the corpse for the purpose of DNA
1
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11
N. von Wurmb-Schwark et al., Genetic Investigation of Modern Burned Corpses, INT'L CONG. SERIES (2004).
Vinay Kumar v. State, CRL.A 670 of 2007.
7
V. K. Kashyap et al., DNA Profiling Technologies in Forensic Analysis, Cent. Forensic Sci. Lab. (2004).
8
Md Idris Ansari v. The State Of Jharkhand And Ors., W.P. (Cr.) No. 7 of 2014.
9
Supra note 5.
10
Factsheet Page 2.
11
Nandini Sathpathy v. P.L.Dani, (1978) 2 SCC 424.
6
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While
upholding the general principle, the court also held that there is no blanket inadmissibility with
regard to such statements that are made in police custody. It was held that any statement made, if
made on a voluntary basis, then such a statement is not completely inadmissible.16
In specific terms with narco analysis, the court has come down heavily against the practice. It has
held that such practices as violative of the persons right against self incrimination as granted
under Article20(3) of the constitution.
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liberties of a person. Due to the overwhelming ability of the abuse of process by using narco
analysis, it has been categorically held by the court that narco analysis is not to be allowed
during the investigation process unless certain stringent safeguards are in place. The two most
important safeguards that have been sought for is that primarily, the tests must be made on a
completely voluntary basis and that secondly, he must have prior warning. The court still does
not give complete admissibility to such statements but merely allows such a statement to be
under the scope of Section 27 of the Indian evidence act.18
As has been held by the courts, the usage of narco analysis has been given a very limited use.
One of the most important conclusions of the courts decision on the use of narco analysis is that
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43
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50
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53
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Act should be done to cause death or likeliness that it would cause death
ii)
Motive is an important element to carry out the intention to carry out death of another,
especially, in cases of circumstantial evidence.61 Presence of motive in cases of circumstantial
evidence itself forms a link in the chain of the crime.62 The Supreme Court has further accepted
the main contention of the Defendants that although motive cant alone convict a person, it can
help in connecting all further circumstances. 63
Thus, in the present case, there has been a considerable lack of a credible motive due to which
the Defendants have committed the murder of the victim. As seen above from the Court
decisions, the motive is an essential piece in any trial and without that, a conviction is very hard.
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ii)
Person charged must have had the intention at the time of abduction to murder the
abducted or be put in such danger
A conduct which destroys the presumption of innocence is a material fact. In a case where the
accused misled the kidnap rescue search and not allowing to search specific places created a cast
iron doubt over his innocence, establishing liability.65
Firstly, there is no proof of Trishas kidnapping whatsoever. This section is attracted when the
kidnapping is sufficiently proved but its intent, that of murder, has to be ascertained. The first
elements itself is not proved. In cases which have attracted Section 364 and the evidence is
primarily circumstantial, the Supreme Court has strictly adopted the approaches:
i)
ii)
iii)
The court also held that the use of force against the deceased was an important factor
in the conviction under Section 364.69
Thus, Trishas kidnapping cannot be conclusively proved or ascertained beyond the shadow of
doubt. If the Panchsheel70 formula for circumstantial evidence for conviction under Section
364 is applied in the present case it can be found that Trishas kidnapping itself cannot be
64
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Commission of an offence
ii)
iii)
As a matter of practice a Court will not convict a person both of the main offence and under this
section.71 Although the Supreme has allowed for conviction under this section on circumstantial
evidence, it held that this evidence needs to establish guilt beyond a reasonable doubt.72 This has
been accepted on multiple occasions wherein the court has not accepted a conviction if the
circumstantial evidence does not provide guilt beyond reasonable doubt.73 The court further held
that the prosecution could not present any positive evidence to prove the destruction or removal
of the evidence in the first place. A combined reading of S. 101 and S. 104 of the Evidence Act
also puts the burden on the prosecution to present a positive evidence to prove the damage or
loss of it and convict the accused on its basis. The accused cannot be convicted on the
disappearance or loss of something whose existence itself is disputable.74
The present factual matrix does not provide a situation wherein the circumstantial evidence
relied on by the prosecution does not give an element of proving beyond a reasonable doubt that
is required for the prosecution under this section. The facts do leave certain questions due to
which the question of prosecution cannot be answered in the positive.
71
Kalawati v. State of Himachal Pradesh, (1953) SCR 546; V.L. Tresa v. State of Kerala, AIR 2001 SC 953.
Sukhram v. State of Maharashtra, (2007) 7 SCC 502.
73
Hanuman v. State of Rajasthan, 1994 Supp (2) SCC 39.
74
Tejinder Singh v. State of Punjab, (2013) 12 SCC 503.
72
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There must be an agreement between the persons who are alleged to conspire
ii)
The agreement must be for a) doing an illegal act, b) doing a legal act illegally.
The present case presents no substantive evidence for a criminal conspiracy between the parties.
Although it has been accepted that for Conspiracy occurs in secrecy and direct evidence is not
always available75, there is a requirement that there need to some substantive corroboration to the
hypothesis even if only circumstantial evidence is available.76 There is a minimum requirement
that a minimum level of corroboration is required if the charge of criminal conspiracy is to be
proved.77
In the present case, it can be proved as to why the three alleged persons would come together to
result the murder of the deceased. Suhas Kumars motive and intention cannot be established on
the give facts, thus, no Suhas cannot share a common intention with Rekha. It cannot be
established as to why would accused Suhas Kumar would fly to Delhi to especially kill Trisha
againt whom on the basis of current facts he shared no animosity or had no relationship with.
Similarly, Sahus involvement in furthering Rekhas motive or sharing a common motive cannot
be adduced by the surrounding circumstances. No substantive evidence has been placed which
established that the accused persons acted in concert with a common intention, therefore, an
agreement to result Trishas abduction and murder cannot be established.
E. THERE WAS NO COMMON INTENTION AMONGST THE DEFENDANTS
Section 34 is used not substantively but to bring under the ambit of all persons accomplice to a
common crime, where it is difficult to distinguish between the acts of the individual members of
the common intention of all. All such people are deemed guilty as the presence of an accomplice
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common intention;
ii)
participation by all accused in the act or acts in furtherance of the common intention,.
Furtherance means action of helping forward, which was adopted by the Supreme Court.80
The parties must be shown to be having a common intention to come together to commit a crime,
the act being a positive act in concert. The Supreme Court has held that it is the essence of the
section that a person must be physically present to commit the act. In fine, if common intention
cannot be inferred from the evidence of facts and circumstances of the case, then section 34
I.P.C. is cannot be invoked. In this case, the facts suggest that Suhas Kumar came all the way to
Delhi to abduct and kill Trisha and that the driver Shyam Sahu complied with the criminal acts
of his employer Rekha. On the basis of surrounding facts, no common intention can be adduced,
and as already proved above no substantive evidence proves the existence of an agreement to
further the crime.
F. THE DEFENDANTS REKHA CANNOT BE CONVICTED FOR CAUSING MISCARRIAGE
Courts have declared that on the strength of vague evidence and in the absence of corroborative
medical evidence, conviction for a serious offence under Section 313 IPC cannot be done. In
such cases, benefit of doubt must be given to the accused.81 The Prosecution must bring in
adequate medical evidence and testimonial evidence as to the consent for abortion.82
Furthermore, when there has been no case against the Doctor who conducted the abortion, it may
be assumed that there was no lack of consent.83
It is submitted that owing to lack of concrete evidence, it may not be assumed that Rekha forced
Trisha to abort the child. Mere disagreement to a childs birth owing to the social realities and
taboos of India cannot be said to be pressurizing. Trishas abortion was with her own consent,
done freely, as Trisha and Shobhit were merely cohabiting and had not married.
78
Ibid.
Ramjee Rai v. State of Bihar, (2006) 13 SCC 229.
80
Parasa Raja Rao v. State of Andhra Pradesh, (2003) 12 SC 306.
81
Sonti Rambabu v. State of Andhra Pradesh, AIR 2004 AP 317.
82
Shobha Devi v. The State of Jharkhand and Nutan Kumari, 2011 CriLJ 4745.
83
Moideenkutty Haji and Ors. v. Kunhikoya and Ors., AIR 1987 Ker 184.
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Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Hon'ble Court that it may be pleased to adjudge and declare
the following:
1. The Defendants are innocent of the charge of murder of Trisha Das under Section 302 of
the Indian Penal Code;
2. The Defendants are innocent of the charge of kidnapping of Trisha Das under Section
364;
3. The Defendants are innocent of the charge of causing disappearance of evidence under
Section 201;
4. The Defendants are innocent of common conspiracy to commit a crime under Section
120-B and had common intention thereof under Section 34; and
5. The Defendant Rekha is innocent of the charge of causing miscarriage without consent
under Section 313.
OR
May pass any other order that it deems fit in the light of Justice, Equity and Good Conscience.
Sd//_______________
(Counsel for the Defendant)
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