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St.

Wilfreds College of Law, National Level Moot Court Competition, 2017

BEFORE THE HONBLE

HIGH COURT OF MUMBAI

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No._______ of 2017

U/s 374(2) OF CODE OF CRIMINAL PROCEDURE

SHEELA ZAVERI .... APPELLANT


VS
STATE OF MAHARASHTRA ....................................... RESPONDENT

IN THE MATTER OF
CODE OF CRIMINAL PROCEDURE, 1973

INDIAN PENAL CODE, 1860

AND INDIAN EVIDENCE ACT, 1872

MOST RESPECTFULLY SUBMITTED TO THE HIGH COURT OF MUMBAI

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT


St. Wilfreds College of Law, National Level Moot Court Competition, 2017

TABLE OF CONTENTS

1) LIST OF ABBREVIATIONS

2) INDEX OF AUTHORITIES

3) STATEMENT OF JURISDICTION

4) SUMMARY OF FACTS

5) ISSUES INVOLVED

6) SUMMARY OF ARGUMENTS

7) ARGUMENTS ADVANCED

8) PRAYERS

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Memorial for the Appellant
St. Wilfreds College of Law, National Level Moot Court Competition, 2017

LIST OF ABBREVIATIONS

AIR - All India Reporter


BLJ - Business Law Journal
Cr LJ - Criminal Law Journal
F.I.R. - First Information Report
Honble - Honourable
Ors. - Others
SC - Supreme Court
Sec. - Section
U/s - Under section
Vs. - Versus

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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

INDEX OF AUTHORITIES

BOOKS:
1) Ratanlal & Dhirajlal, The Indian Penal Code, As amended by the
Criminal Law (Amendment) Act, 2013, Ed. 34, Reprint 2015
2) K.D. Gaur, Indian Penal Code, Reprint 2015
3) Universal Law Publishing, Universals Criminal Manual, 2016

STATUTES REFERRED:

1) Code of criminal procedure, 1973


2) Indian penal code, 1860
3) Indian evidence act, 1872

CASES REFERRED:

1) Rahimal v. State of U.P.


2) Wakil Singh and Ors. Vs. State of Bihar

WEBSITES:

http://www.indiakanoon.com

http://www.manupatra.com

http://www.vakilno1.com

http://www.lawctopus.com

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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

STATEMENT OF JURISDICTION

The Appellant humbly submits to the jurisdiction of this honourable court under Section
374(2) of the Code of Criminal Procedure, 1973.

Section 374 (2) states that


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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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

SUMMARY OF FACTS

1) Sheela Zaveri and Bhau Rao belong to the same area and are the leaders of two rival
political parties.
2) In the elections concluded in the month of February, 2014 Sheela Zaveri lost the
election to Bhau Rao.
3) Sheela Zaveri contacted Devi and paid an amount of Rs 20 lakh to kill Bhau Rao.
4) On the night of 15-03-2014 at around 5.00 A.M. Devi and the four others had attacked
and attempted to kill Bhau Rao without much fuss, who was sleeping in the corridor of
his house.
5) The gang with the mask on their face broke in and opened the door of the house,
entered the house of Bhau Rao and looted a lot of gold, money and other valuables.
6) Bhau Raos wife called the neighbours and took Bhau Rao to the City Hospital.
7) Bhau Rao gave a Dying declaration in front of Dr. Salunke in conscious state.
8) Bhau Raos wife gave F.I.R in D.N. Nagar Police Station. On the basis of F.I.R. a case
was registered against Sheela Zaveri and others and after conducting investigation a
charge sheet was filed against all the accused.
9) Police filed charge sheet against well known female politician Sheela Zaveri, Devi and
four others for the offence U/s 396,397,398,400,402,457,458,459,460 and 120B I.P.C.
10) The accused have denied the commission of the offence.
11) Honorable sessions court has convicted to Sheela Zaveri, Devi and four others for
dacoity with Murder and punished Sheela Zaveri, Devi and four others with rigorous
imprisonment for 9 years, and fine Rs.25000/-.
12) Being aggrieved by the order Appellant preferred an appeal to Mumbai High court.
13) Sheela Zaveri took the defence that the offence u/s 396 was not committed. Dacoity
and murder did not go simultaneous and murder preceded dacoity.

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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

ISSUES INVOLVED

ISSUE 1

WHETHER APPELLANTS CONVICTION UNDER SECTION 396 IPC IS


MAINTAINABLE?

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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

SUMMARY OF ARGUMENTS

ISSUE 1
WHETHER APPELLANTS CONVICTION UNDER SECTION 396 IPC IS
MAINTAINABLE?

The Appellant humbly submits before this Honourable court that conviction by the Sessions
Court under Section 396 of Indian Penal Code,1860 is not maintainable and should be set
aside as section 396 reads as:
If any one of five or more persons who are conjointly committing dacoity, commits murder
in so committing dacoity, every one of those persons shall be punished with death, or
imprisonment for life, or rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine.
Here appellant humbly submits before the court that murder of Bhau Rao took place before
the actual commission of the act of dacoity and not during or in the course of commission of
dacoity.
As the language of the Code clearly states, Section 396 is applicable in case the murder is
committed in order to commit dacoity.

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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

ARGUMENTS ADVANCED
ISSUE 1
WHETHER APPELLANTS CONVICTION UNDER SECTION 396 IPC IS
MAINTAINABLE?
The Appellant humbly submits before this Honourable court that conviction by the Sessions
Court under Section 396 of Indian Penal Code,1860 is not maintainable and should be set
aside as section 396 reads as:
If any one of five or more persons who are conjointly committing dacoity, commits murder
in so committing dacoity, every one of those persons shall be punished with death, or
imprisonment for life, or rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine.
Thus, the offense under this section requires two things :-
1) The dacoity must be joint act of the persons concerned.
2) Murder must have been committed in the course of commission of dacoity1.

Here appellant humbly submits before the court that murder of Bhau Rao took place before
the actual commission of the act of dacoity and not during or in the course of commission of
dacoity.
As the language of the Code clearly states, Section 396 is applicable in case the murder is
committed in order to commit dacoity.

In Wakil Singh and Ors. Vs. State of Bihar 2, the Supreme Court reversing the order of
High Court who convicted the appellants under section 396, acquitted them and held that the
prosecution has not been able to establish any nexus between death and commission of
dacoity, the charge under 396 must fail.
Bhau Raos murder took place without much fuss and while he was sleeping, hence the
Sessions Court has grossly erred in convicting the Appellant under Section 396 for dacoity
with murder.

1 To bring an offence under section 396, the prosecution has to establish that murder was commited during
dacoity. Rahimal v. State of U.P., (1992) Cr LJ 3819 (All).

2 (1981) BLJ 462


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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

The Appellant further submits that the offence under Section.120A of Indian Penal Code i.e.
Criminal Conspiracy with which Appellant Sheela Zaveri is convicted by Sessions Court and
punished under Section 120B is not made out by the Prosecution as there is no evidence to
suggest that Appellant Sheela Zaveri was a part of the conspiracy to commit the offence of
dacoity with murder, with which she has been convicted by Sessions Court.

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St. Wilfreds College of Law, National Level Moot Court Competition, 2017

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Honble Court may be pleased to adjudge and declare:
1) That the conviction by Sessions Court under section 396 IPC be set aside.
2) Acquittal of the Appellant.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

Respectfully submitted.

COUNSELS FOR THE APPELLANT

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