Xth Semester Internal Moot Court- 2018

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 46 OF 2016

(Arising out of SLP (Crl.) No.7437 of 2013)

____________________________________________________________________________________
NANKAUNOO
(APPELLANT)

Versus

STATE OF UTTAR PRADESH

(RESPONDENT)
____________________________________________________________________________________

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS..................................................................................................3-4

INDEX OF AUTHORITIES……….......................................................................................5-7

 CASES REFFERED………………………………………………………...………….5-6
 STSTUTES REFERRED………………………...…………………………………..…..6
 BOOKS REFERRED…………………………..………………...……….………..…...6-7

STATEMENT OF JURISDICTION………………………………………………………....8

STATEMENT OF FACTS......................................................................................................9-10

ISSUES RAISED………..........................................................................................................11

SUMMARY OF ARGUMENTS..............................................................................................12

ARGUMENTS ADVANCED................................................................................................13-20

PRAYER………………………...............................................................................................21

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 LIST OF ABBREVIATIONS

¶ Paragraph
AIR All India Report
Annex. Annexure
App. Appellant
Art. Article
CrPc. The Code of Criminal Procedure
Doc. Document
ed. Edition
HC High Court
IEA Indian Evidence Act
IPC Indian Penal Code
Ltd. Limited
No. Number
Rep. Report
Res. Respondent
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
Ser. Series
Sess. Session
Ss. Sub-section
Supp. Supplement

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 INDEX OF AUTHORITIES

I. LIST OF CASES

CASES PAGE NOS.

II. STATUTES Referred to in:

1. The Constitution of India, 1949.
2. The Indian Penal Code, 1860.
3. The Code of Criminal Procedure, 1973.
4. The Indian Evidence Act, 1872.

III. BOOKS Referred to in:

1. Colin Tapper, Cross & Tapper on Evidence, (12th Ed.)

2. David Ormerod, Smith And Hogan’s Criminal Law, (13th Ed.,2011)
3. Durga Das Basu: Criminal Procedure Code, 1973, Vols. I & Ii (5th Ed., 2014)
4. Hari Singh Gaur’s Indian Penal Code, Vols. I & Ii (14th Ed. 2013)
5. K.D. Gaur, Criminal Law: Cases and Materials, (6th Ed. 2009)
6. M. Manor, Commentary On Law Of Evidence, (15th Ed. 2010)
7. Peter Murphy, Murphy On Evidence, (11th Ed. 2009)
8. Phipson, Phipson On Evidence, (16th Ed. 2010)
9. Ratanlal & Dhirajlal: The Indian Penal Code, (32nd Ed. 2013)
10. Ratanlal &Dhirajlal: The Law Of Evidence, (22nd Ed. 1916 Reprint 2009)
11. S.C. Sarkar, Commentary On Law Of Evidence, (3rd Ed. 2009, Reprint 2010)
12. Willium Wills, An Essay On The Principles Of Circumstantial Evidence, Ch. 6 (Alfred
Wills, 6th Ed., The Boston Book Company, 1981)

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MEMORIAL ON BEHALF OF RESPONDENT Page 5
 STATEMENT OF JURISDICTION

The Appellant has brought the present dispute before the Hon’ble Supreme Court of India in
compliance with Article 134 (1) (b) of The Constitution of India1. The Respondent humbly submits
to the jurisdiction of the court under the abovementioned provision. The Parties shall accept any
Judgment of the Court as final and binding upon them and shall execute it in its entirety and in
good faith.

1
Article 134. Appellate jurisdiction of Supreme Court in regard to criminal matters. — (1) An appeal shall lie
to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the
territory of India if the High Court—
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial
convicted the accused person and sentenced him to death; or
(c) certifies under article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under
clause (1) of article 145 and to such conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any
judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such
conditions and limitations as may be specified in such law.

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 STATEMENT OF FACTS

The facts of the case are as follows:

1. The deceased i.e. Chhedi Lal was running a barber shop in Kurari Khurd Market. On
18.02.1981, the appellant visited the shop of Chhedi Lal and asked for a haircut. An
altercation took place between the two when appellant insisted the deceased for haircut
claiming preference over other customers; but the deceased Chhedi Lal declined his
demand.

2. The appellant felt insulted and left the barber shop threatening the deceased. At around
5.00 p.m., deceased Chhedi Lal closed the shop and went back home. Later at 6.00 p.m.,
the deceased went towards the canal lying in the western side of the village Abadi to
answer the nature’s call. When the deceased reached near the eastern mend of the grove
of Ishwari, the appellant emerged from the northern side carrying a pistol in his hand and
threatened the deceased as he had insulted the appellant in the market and that he would
not spare him alive.

3. The deceased further fled towards the west to save himself and appellant fired from his
pistol which hit the deceased on his left thigh and he had fallen down. The incident was
witnessed by Janoo(PW2), Udan(PW3) and Muneshwar. Also, father of the deceased
namely Kishore(PW1) and his son-Ram Pal saw the incident when they were returning
from their field.On the alarm raised by the deceased and the witnesses, the appellant fled
away from the scene.

4. The deceased was taken on a cot to his house and on the narration of incident by Kishore
i.e the father of the deceased, the complaint was written by Shiv Pujan Singh. Thereafter,
deceased was taken to Police Station, Achal Ganj, where FIR (Ex. Ka-1) bearing Crime
No.37/81 dated 18.02.1981 was registered against the appellant for attempt of murder
under the Indian Penal Code, 1860.

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 5. SI-Ravinder Prasad Yadav (PW-6) recorded the statement of Chhedi Lal who was lying
injured on the kharkhara outside the Police Station and the deceased was sent to Achal
Ganj Hospital from where he was referred to District Hospital Unnao; but the deceased
died on the way to the hospital. FIR was altered from Section 307 of IPC2 to Section 302
of IPC3 and further investigation was taken up.

6. After inquest by the police, post mortem was conducted by Dr. J.N. Bajpai (PW-4) at
District Hospital Unnao on 19.02.1981 at 3.30 p.m. (PW-4) Dr. Bajpai noted a gunshot
wound of entry ½” x ½” on the back and inner part of left thigh and six gunshot wounds
of exit each 1/3” x 1/3” in size in front and middle left thigh. Dr. J. N. Bajpai (PW-4)
opined that the death was due to shock and haemorrhage due to injuries of firearm.

7. After completion of investigation, charge sheet was filed against the appellant
under Section 302 of IPC4. After committal of the case to the Sessions Court, charge was
framed against the appellant under Section 302 of IPC5.

8. To bring home the guilt of the accused-appellant, prosecution has examined in all eight
witnesses and exhibited the material object on record. The incriminating evidence and
circumstances were put to the appellant under Section 313 of Cr.P.C.6 and the accused
denied all of them and pleaded that he was falsely implicated. Upon consideration of the

2
Section 307 IPC. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to
any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is
hereinbefore mentioned.
3
Section 302 IPC. Punishment for murder. —Whoever commits murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to fine.
4
Ibid.
5
Ibid.
6
Section 313 Cr.P.C. 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
defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with
the personal attendance of the accused, it may also dispense with his examination under clause (b).
(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.

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 evidence, the Sessions Judge, Unnao found the appellant guilty of the offence
under Section 302 of IPC7 and sentenced him to undergo imprisonment for life.

9. Being aggrieved, the appellant preferred appeal before the High Court which was
dismissed by the impugned judgment.

7
Ibid.

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 ISSUES RAISED

The counsel on behalf of the State respectfully asks this Court to decide:

ISSUE I: Whether the appellant has the intention to kill the deceased or not?

ISSUE II: Whether the testimony of PWs 1, 2 and 3 is reliable or not in the court of law?

ISSUE III: Whether the discovery of the weapon of murder is a necessity or not?

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 SUMMARY OF ARGUMENTS

I. The appellant has the intention to kill the deceased.

It is humbly submitted that the statement made by the appellant to the deceased clearly
through its words signifies a life threat. After the altercation took place between the
appellant and the deceased the appellant threatens the deceased and stated that he would
not spare his life because he has insulted him by denying to give him the service before
other customers who were waiting for a longer time than the appellant. The threat given by
the appellant was not the only thing, this threat was further followed by the incident which
took place at 6 p.m. on the same day. Thus, the threat may be considered as the proof for
the appellant’s guilty mind.

II. The testimony of PWs 1, 2 and 3 is totally reliable in the court of law.
It is humbly submitted that the testimony of the PWs 1, 2 and 3 is totally and clearly reliable
in the court of law. PW 1 is Kishore, the father of the deceased, and PW 2 and PW 3 are
also the eye witness to the part of incident when the appellant shot fire. Just on the grounds
that they are interested or related witnesses, their testimony cannot be declined. Eye
witnesses are considered to be the prime and important witnesses in criminal cases,
especially when the case deals with death of a person.

III. The discovery of the weapon of murder is not a necessity.

It is humbly submitted that the discovery of the weapon of murder is not a necessity. In
cases where there are other evidences, such as ocular and medical evidences it is not
necessary that the weapon of murder shall be discovered to stand the case of prosecution.

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 ARGUMENTS ADVANCED

I. The appellant has the intention to kill the deceased.

It is humbly submitted that the statement made by the appellant to the deceased clearly
through its words signifies a life threat, and thus he has the intention to kill the deceased.
After the altercation took place between the appellant and the deceased the appellant
threatens the deceased and stated that he would not spare his life because he has insulted
him by denying to give him the service before other customers who were waiting for a
longer time than the appellant. The threat given by the appellant was not the only thing,
this threat was further followed by the incident which took place at 6 p.m. on the same day.
Thus, the threat may be considered as the proof for the appellant’s guilty mind.

The legal maxim, Mens Rea i.e. ‘Actus non facit reum nisi mens sit rea’ generally means,
wrongful intention/motive. According to Black’s Law Dictionary, the maxim means that
“an act does not itself make one guilty unless the mind is also guilty”. It can also be stated
as blameworthy mental condition, so before a criminal is made liable, he should be proven
to have some blameworthy mental condition. In this argument, the counsel would prove
that appellant had the intention to kill the deceased.
In this case, the appellant came to the deceased for a haircut, he then asked the deceased to
give him the haircut before the other customers. The deceased refused to do so, the
appellant then threatened the deceased and stated that he would not spare his life and, in
the evening, shot the deceased with his country made pistol, this clearly shows that the
accused has the intention to kill the deceased.

Intention is different from motive. It is the intention with which the act is done that makes
a difference in arriving at a conclusion whether the offence is culpable homicide or murder.
The third clause of Section 300 of IPC8 consists of two parts. Under the first part it must

8
Section 300. 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—

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 be proved that there was an intention to inflict the injury that is present and under the
second part it must be proved that the injury was sufficient in the ordinary course of nature
to cause death. Considering the clause thirdly of Section 300 of IPC9 and reiterating the
principles in Virsa Singh’s case10.

The test laid down in Virsa Singh case11, for the applicability of Clause Thirdly is now
ingrained in our legal system and has become part of the rule of law.” The decision in Virsa
Singh case12 has throughout been followed as laying down the guiding principles. In this
case it is clearly laid down that the prosecution must prove,

“... (1) that the body injury is present, (2) that the injury is sufficient in the ordinary
course of nature to cause death, (3) that the accused intended to inflict that
particular injury that is to say it was not accidental or unintentional or that some
other kind of injury was intended”

In other words, Clause Thirdly consists of two parts. The first part is that there was an
intention to inflict the injury that is found to be present and the second part that the said
injury is sufficient to cause death in the ordinary course of nature. Under the first part the
prosecution has to prove from the given facts and circumstances that the intention of the
accused was to cause that particular injury. SO here in this case the intention is proved by
the threat which was given by the accused in his shop when he went to grt the haircut and
there are several eye witnesses to the same.

Whereas the second part whether it was sufficient to cause death is an objective enquiry
and it is a matter of inference or deduction from the particulars of the injury. The language
of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence
is to be established by the prosecution before the case can fall in that clause.

(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.
9
Supra note 8.
10
AIR 1958 SC 465.
11
Ibid.
12
Ibid.

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 The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind
and their existence has to be gathered from the circumstances, such as the weapon used,
the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The
framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is
accepted that the knowledge of the consequences which may result in doing an act is not
the same thing as the intention that such consequences should ensue.

Firstly, when an act is done by a person, it is presumed that he must have been aware that
certain specified harmful consequences would or could follow. But that knowledge is bare
awareness and not the same thing as intention that such consequences should ensue.
The emphasis in clause three of Section 300 IPC13 is on the sufficiency of the injury in the
ordinary course of nature to cause death. The sufficiency is the high probability of death in
the ordinary course of nature. When the sufficiency exists and death follows, causing of
such injury is intended and causing of such offence is murder. For ascertaining the
sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of
the body on which the injury is caused and sometimes both are relevant. Depending on the
nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to
cause death in the ordinary course of nature must be proved and cannot be inferred from
the fact that death has, in fact, taken place.

Keeping in view the above principles, when we examine the facts of the present case, the
deceased sustained gunshot wound of entry 1-1/2” x 1-1/2” on the back and inner part of
left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh.
Due to the occurrence in the morning at the barber shop of the deceased, the appellant
emerged from the northern side of the grove carrying pistol in his hand and fired at the
deceased. The weapon used and the manner in which attack was made and the injury was
inflicted due to premeditation clearly establish that the appellant intended to cause the
injury. Once it is established that the accused intentionally inflicted the injury, then the

13
Supra note 8.

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 offence would be murder, if it is sufficient in the ordinary course of nature to cause the
death14.

Thus, here in this case it is clear from the witnesses that the accused shot the deceased with
a country made pistol, and this pistol is sufficient enough to cause the death of a person
when fired on him/her. And this case it was fired intentionally there was no scope of
mistake and accident and the accused fired it with all its conscious mind.

II. The testimony of PWs 1, 2 and 3 is totally reliable in the court of law.
It is humbly submitted that the testimony of the PWs 1, 2 and 3 is totally and clearly reliable
in the court of law. PW 1 is Kishore, the father of the deceased, and PW 2 and PW 3 are
also the eye witness to the part of incident when the appellant shot fire. Just on the grounds
that they are interested or related witnesses, their testimony cannot be declined. Eye
witnesses are considered to be the prime and important witnesses in criminal cases,
especially when the case deals with death of a person.
The statements given by the witnesses are considered as oral evidences and these oral
evidences are included within the definition of evidence as under Section 3 of the Indian
Evidence Act, which states:

“Evidence”: It means and includes-

(1) All statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called as oral evidence;
(2) All documents [including electronic record produced for the inspection of the court];
such documents are called as documentary evidence.

The principles of law say that the statements of all the eye witnesses are admissible in the
court of law and also has same weightage as to the other evidences. There are several
exceptions to the type of witnesses but that too is on the basis of circumstances and is
totally on the discretion of the court whether to accept it or not. There are a lot of landmark

14
Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32, para (12).

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 cases and situations where the related, interested, partisan and inimical witnesses have been
allowed.

In the case of Bhagwan Singh v. State of MP15, it was stated by the apex court that:

“…merely because witnesses happen to be the relations of the deceased, cannot be

made a ground to discard their evidences.”

Thus, in the present case also, the testimony of the PW-1 Kishore who is the father of the
deceased is reliable even if he is a related and interested witness. In cases where the prime
eye witnesses are the interested witnesses, the testimony given by them cannot be said to
be uncosiderable.

Further in another case Ashok Kumar Pandey v. State of Delh16i, it was observed by the
apex court that:

“…evidence of the witness cannot be discarded merely on the ground that he is

either partisan or interested or both, if otherwise the same is found to be credible”

In this case all the three prime witnesses are interested or related, but it cannot be discarded.
In another case the apex court stated that,

“…where evidence of eye witness that accused fired gunshot on deceased from
some distance was corroborated by medical evidence then this evidence cannot be
discarded merely on the ground that he is a partisan witness”17.

Therefore, in this case all the three witnesses, i.e. PWs 1, 2 and 3 have seen the accused
firing at the deceased-Chhedi Lal with ‘country made pistol’ which he was carrying in his
hand. And further the witnesses consistently deposed that the appellant threatened the
deceased that he would not be spared alive and thereafter fired shot from his loaded pistol
and medical evidence amply corroborates the version of the eye witnesses. Further in
another case of Rama Shish Rai v. Jagdish Singh18, the apex court has observed that:

15
AIR 2002 SC 1621.
16
JT 2002 (3) SC 103.
17
Vijay Singh v. State of U.P., AIR 2005 SC 44.
18
AIR 2005 SC 335.

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 “…rejection of creditworthy eye witnesses as to incident merely on the ground that
there was enmity between the prosecution and the accused party is not proper”

Thus, even the testimony of an inimical witness is reliable in the court of law.

In the context of unimpeachable oral evidence coupled with the medical evidence it is
hence very clear that deceased-Chhedi Lal met with homicidal death due to gunshot
injuries, and the appellant was responsible for the death of Chhedi Lal. The witnesses PWs
1, 2 and 3 were reliable witnesses as there is no reason to disbelieve the evidence of eye
witnesses PWs 2 and 3.

III. The discovery of the weapon of murder is not a necessity.

It is humbly submitted that the discovery of the weapon of murder is not a necessity. In
cases where there are other evidences, such as ocular and medical evidences it is not
necessary that the weapon of murder shall be discovered to stand the case of prosecution.
In the cases related to section 300 of the IPC, it is not necessary that the murder weapon
shall be recovered to prove the case of prosecution, there are several other evidences which
shall be used for the corroboration. Further if the witnesses and the evidences are
corroborated and if the corroboration is true, there is no need of recovery of the murder
weapon. In a landmark case of State of Rajasthan v. Arjun Singh19 the victim was shot by
the accused and the pallets were neither recovered at the scene of crime nor from the
victim’s body, so here the apex court has observed and stated that,

“...mere non -recovery of the pistol and the cartridge does not distract the case of
prosecution where other evidences are acceptable and when a gunshot injury has
been tallied with the medical evidence”

Here in the present case also the murder weapon is not recovered, but it is not even required,
because as per the witnesses the deceased was shot by a gun and the injury in the body of
the deceased clearly shows the injury of a gunshot, and the witnesses are all eye witnesses

19
AIR 2011 SC 3380.

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 i.e. they have seen it themselves. Further another landmark case of Lakhan Sao v. State of
Bihar20 the Supreme Court of India stated that,

“…in any case it is an established proposition of law that mere non-recovery of the
weapons involved in commission of the crime does not falsify the prosecution
case.”21

Thus, in the present case also the same precedent would apply and the case on behalf of
the prosecution is not weakened. Further in a case it happened that the eye witness
described the knife. The eye witness gave the full description of the weapon, i.e. the knife
which was used for the murder, as to what was the type, the size etc. of the knife. Further
the weapon was not discovered, but the accused was held guilty of the offence on the basis
of several other evidences, which also includes the ocular evidence, medical evidence and
the opinion of doctor on the injury.22 A similar case was that of Nupur Talwar v. CBI and
Another.23 in this case it came out in the medical report that the murder was caused by a
sharp instrument, i.e. the murder weapon have to be a sharp instrument. No such type of
weapon was recovered during the investigation but even then, the court convicted the
accused on the grounds of other evidences.

Further in many other cases where the weapon of murder is not recovered it happens that
there are eye witnesses who has seen the weapon of murder, their statements are
corroborated with the medical evidence to come on the conclusion about the type of the
murder weapon. Similar case is the case of Raghunath v. State of Haryana24, in this case
the apex court stated that:
“…where the ocular evidence is explicit and fully supported by medical evidence,
the absence of the murder weapon would not render the entire prosecution case un
believable.”

20
(2000) 9 SCC 82.
21
Manjit Singh v. State of Punjab, (2013) 12 SCC 746.
22
Dhool Singh v. State of Rajasthan, AIR 2004 SC 1264.
23
(2012) 11 SCC 465.
24
AIR 209 SC 165.

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 In another case of Arvind v. State of Delhi25 it was observed by the apex court that:
“…when evidence of both reliable eye witnesses is truly corroborated by the
medical evidence, this inspires confidence that the accused had the intention to kill
the deceased.”

In the light of unimpeachable oral evidence which is amply corroborated by the medical
evidence, non-recovery of ‘country made pistol’ does not materially affect the case of the
prosecution. In a case of this nature, any omission on the part of the investigating officer
cannot go against the prosecution case. Story of the prosecution is to be examined dehors
such omission by the investigating agency. Otherwise, it would shake the confidence of
the people not merely in the law enforcing agency but also in the administration of justice.

Thus in this present case too, the mere non recover of the weapon of murder shall not falsify
the whole case of the prosecution as there are several other corroborated evidences to rely
for reaching the judgment of the present case.

25
1999 (4) SCC 4861.

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 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. That the threat given by the accused proves the intention of the accused.
2. That the testimony of PW-1, PW-2 and PW-3 are fully reliable in the present case.
3. That the discovery of the weapon of murder is not a necessity.

And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience. And for this act of kindness, the counsel for the respondent shall duty bound forever
pray.

COUNSEL FOR THE RESPONDENT

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