TEAM CODE – FC-01

SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT

COURT COMPETITION – 2014

IN THE COURT OF SESSIONS

BAMBI THANE

STATE OF BAMBI
…PROSECUTION

V.

PANNA BOY, SABA AND JAIMIL

…DEFENCE

MEMORIAL FOR THE DEFENCE

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THE TABLE OF CONTENTS

1. THE INDEX OF AUTHORITIES------------------------------------------------------------- III

Statutory Compilations

Books

Dictionaries

Websites

Table of Cases

2. THE STATEMENT OF JURISDICTION----------------------------------------------------------- V

3. THE STATEMENT OF FACTS------------------------------------------------------------------- VI

4. THE STATEMENT OF CHARGES--------------------------------------------------------------- VII

5. THE SUMMARY OF ARGUMENTS-------------------------------------------------------------- VIII

6. THE ARGUMENTS ADVANCED---------------------------------------------------------------- 1- 14

1. THAT PANNA BOY IS NOT GUILTY OF OFFENCE UNDER SECTION 227 OF BPC

2. THAT THE ACCUSED – PANNA BOY, SABA AND JAIMIL ARE NOT GUILTY OF OFFENCE

UNDER SECTION 501 AND 502 OF BPC

3. THAT THE ACCUSED – MR. SABA AND MR. JAIMIL ARE NOT GUILTY OF OFFENCE UNDER

SECTION 385 OF BPC

4. THAT THE PROSECUTION’S CASE REFLECTS ERROR IN FRAMING CHARGES, MISCARRIAGE

OF JUSTICE AND RELIANCE ON CIRCUMSTANTIAL EVIDENCE

5. THAT THE PROSECUTION’S CASE REFLECTS ERROR IN FRAMING CHARGES, MISCARRIAGE

OF JUSTICE AND RELIANCE ON CIRCUMSTANTIAL EVIDENCE

7. THE PRAYER--------------------------------------------------------------------------------- 15

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THE INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

1. THE CODE OF CRIMINAL PROCEDURE, 1973.

2. THE INDIAN PENAL CODE, 1860.

3. THE INDIAN EVIDENCE ACT, 1872

4. THE ARMS ACT, 1959.

DICTIONARIES

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001)

2. OXFORD ENGLISH DICTIONARY, (2nd ed. 2009)

3. WEBSTER’S NEW INTERNATIONAL DICTIONARY (1926)

WEBSITES

1. www.manupatra.com
2. www.judis.nic.in
3. www.supremecourtcaselaw.com

BOOKS & JOURNALS

1) All India Reporter

2) Avtar Singh, Principles of The Law of Evidence (19th edn Central Law Agency 2011) 40

3) BR Sharma, Forensic Science in Criminal Investigation and Trials (4th edn,

Universal Law Publishing House 2003).

4) C K Thakker, Criminal Procedure (3rd edn LexisNexis 2011)

5) Dr. Hari Singh Gour, Penal Law of India (11th edn Law Publishers (India) Pvt. Ltd 2008)

1142

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6) Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

7) Harris, Criminal Law, (22nd Ed. 2000)

8) Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

9) I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

10) I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

11) II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

12) II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)

13) II, Princep’s Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)

14) III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)

15) K I Vibhute, PSA Pillai’s Criminal Law (10th edn Lexis Nexis 2008)

16) P RamnathaAiyar, Advanced Law Lexicon (3rd edn.Lexis Nexis Butterworth’s Wadhwa,

Nagpur 2009).

17) Ratanlal & Dhirajlal, The Code of Criminal Procedure (18th edn Wadhwa Nagpur 2007)

18) Ratanlal & Dhirajlal, The Indian Penal Code (32nd edn LexisNexis 2010)

19) Ratanlal & Dhirajlal, The Law of Evidence (22nd edn LexisNexis 2009)

20) S K Sarvaria, R A Nelsons’s Indian Penal Code (9th edn Lexis Nexis 2003)

21) Sarkar, The Law of Criminal Procedure Code (9th edn Wadhwa Nagpur 2007)

22) Supreme Court Cases

23) Supreme Court Review

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TABLE OF CASES

1. B.N. Mukherjee v. Emperor AIR 1945 Nag 163 ............................................................................. 1

2. Dhananjay alias Dhananjay Kumar Singh v. State of Bihar and Anr. 2007 Cri LJ

1440.................................................................................................................................... 10

3. In Re: Government of Assam and Ors. 2007 (4) GLT 1.................................................... 11

4. J Jailalitha v. Arcot Veerasamy (1997) Cri LJ 4585 (Mad)............................................... 8

5. Khajendra Nath v. Umesh Chandra AIR 1958 Assam 183................................................. 4

6. Labhshanker Keshavji and Anr. v. State AIR 1955 SAU 42........................................ 10,11

7. Mangal Singh v. Rex AIR 1949 ALL 599.......................................................................... 11

8. Mansharam Gianchand v. Emperor AIR 1941 Sind 36...................................................... 9

9. P Karthikeyan v. Ananthanarayan (1998) 1 Crimes 44 (mad)............................................ 8

10. R v. Walton 32 LJMC 79.................................................................................................... 11

11. Radhakrishnan v. State 1999-1-LW (Cri) 381.................................................................... 3

12. Ram Chancier v. The State of Haryana 1981 Cri LJ 609.................................................. 12

13. Ram Singh v. Sonia (2007) 3 SCC 1.................................................................................. 12

14. Sayed Mohd. Owais v. State of Maharashtra 2003 Cr LJ 303 (Bom)................................. 3

15. State of Bihar v. Kailash Prasad Sharma AIR 1961 PAT 451............................................ 1

16. State of U.P. v. Ashok Kumar Srivastava (1992) Cri LJ 1104........................................... 13

17. State of U.P. v. Ravindra Prakash Mittal AIR 1992 SC 2045........................................... 13

18. Sunilakhya v. H.M. Jadwet AIR 1968 Cal 266.................................................................... 9

19. T.F. Pardiwala and Ors. v. The State of Rajasthan and M.K. Gupta 1980 WLN (UC)

222...................................................................................................................................... 10

20. Tonumal Udhosingh v. Emperor AIR 1944 Sind 203......................................................... 9

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THE STATEMENT OF JURISDICTION

The Defence, most humbly and respectfully, submits that this Hon’ble Court has the requisite

territorial and subject matter jurisdiction to entertain and adjudicate this matter under Section177

read with Section 193 and 209 of The Code of Criminal Procedure, 1973. It is further submitted

that all procedural requirements have been adhered to in the prescribed manner.

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THE STATEMENT OF FACTS

1. In 1993, Panna Boy was arrested under Terrorist and Disruptive Act (TADA) for illegal

possession of arms. In March 2013, the Supreme Court of Barata sentenced him to 5 years

rigorous imprisonment under Arms Act, 1959.

2. In a, hitherto incomplete movie involving both the parties, few intimate scenes with the lead

actress Ms. Naika were supposed to be shot. After the controversy broke, Ms. Naika

categorically refused to complete the movie.

3. Panna was granted parole for a month on February 03, 2014, citing his wife’s ill health, and

his daughter’s yearnings. In the following days, he was spotted interacting with Mr. Saba and

Mr. Jaimil, supposedly regarding the incomplete movie.

4. After coming across Posters of the movie in dispute, Ms Naika sought for permanent

injunction of the movie, as being casting alongside a convicted terrorist would cause irreparable

damage to her image and career. That evening she received two anonymous phone calls on her

mobile threatening of dire consequences to her and family, if she does not withdraw the suit.

5. Next day, she lodged an FIR in the Bambi Central police station against Panna, Mr.Saba, and

Mr.Jaimil for conspiring and using a body double impersonating her, for threatening her and her

family members and for maligning her image and career. Subsequently, Panna’s parole was

cancelled, and warrant was obtained for the arrest of Mr. Saba and Mr. Jaimil. On completion of

the investigation the police forwarded the Report to the Magistrate Court. The Court took

cognizance of the report and thereafter committed the case to the Court of Sessions in Bambi

Thane.

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THE STATEMENT OF CHARGES

1. Accused Mr. Panna Boy has been charged for offence under Section 120 B read with

Sections 34, 227, 501 and 502 of the Barata Penal Code, for criminal conspiracy, violation of

conditions of remission and Defamation of Ms. Naika.

2. Accused Mr. Saba has been charged for offence under Section 120 B read with Sections 34,

385, 501 and 502 of the Barata Penal Code, for criminal conspiracy, criminal intimidation in

furtherance of extortion, and Defamation of Ms. Naika.

3. Accused Mr. Jaimil has been charged for offence under Section 120 B read with Sections 34,

385, 501 and 502 of the Barata Penal Code, for criminal conspiracy, criminal intimidation in

furtherance of extortion, and Defamation of Ms. Naika.

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THE SUMMARY OF ARGUMENTS

1. THAT THE ACCUSED ARE NOT GUILTY OF OFFENCE UNDER SECTION 120 B READ WITH

SECTION 34 OF BPC

It is submitted that there is no agreement for Criminal Conspiracy between Panna Boy and

the co-accused. When Saba and Jaimil allegedly approached Ms. Naika regarding

completion of the movie, Panna Boy was under incarceration; therefore, no direct or explicit

meeting of minds can be established.

Furthermore, No illegal act has been committed by the accused. Subsequent to Ms. Naika’s

refusal to cooperate with Mr. Jaimil and Saba for completion of the movie, they resorted to

use of software editing technology in order to meet their ends, which is per se a lawful

activity, done with lawful means.

2. THAT PANNA BOY IS NOT GUILTY OF OFFENCE UNDER SECTION 227 OF BPC

The very essence of parole as laid down by the Model Prison Manual 2003 as well as

Maharashtra Prison Manual 1979 i.e. maintenance and continuity of social relations stands to

be defeated if Panna Boy is convicted on the grounds of indulging in social interactions.

Panna Boy was granted Special Leave under Model Prison Manual 2003. This Special leave

is of the nature of Parole. Pursuant to Rule 20 of Bombay (Parole and Furlough) Rules 1959,

parole is not to be counted as remission of sentence. It is a settled principle of law that parole

and remission are two different things; therefore, the charge under section 227 is not

maintainable.

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3. THAT THE ACCUSED – PANNA BOY, SABA AND JAIMIL ARE NOT GUILTY OF OFFENCE UNDER

SECTION 501 AND 502 OF BPC

The scope Section 501 encompasses the definition of ‘Printer’, which can be contrasted with

Broadcast Media and other Digital Media under which one can appropriately classify the

accused. Panna Boy, merely being an actor in the movie has no reasonable nexus with the

release and distribution of the alleged defamatory material.

Moreover, the accused did not shoot any additional scenes as alleged by the complainant, nor

did the imputation (posters) lower complainant’s reputation in the estimation of others.

The accused certainly had intention to defame or knowledge that such material contains

defamatory matter, which is sine qua non of the offence under these sections.

4. THAT THE ACCUSED – MR. SABA AND MR. JAIMIL ARE NOT GUILTY OF OFFENCE UNDER

SECTION 385 OF BPC

The object of extortion is obtaining Money or property from another unjustly, in the instant

set of facts, the calls made to threaten Ms. Naika nowhere articulate about delivery of any

sort of money, property or valuable security.

Further, there lies a disparity between the statement of PW-4 and transcripts of the call

details from the Cello Mobile Company records wherein, neither any description regarding

delivery of any valuable security is present, nor it can even remotely be established that the

accused is the perpetrator or executor or both of the threatening calls

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5. THAT THE PROSECUTION’S CASE REFLECTS ERROR IN FRAMING CHARGES, MISCARRIAGE

OF JUSTICE AND RELIANCE ON CIRCUMSTANTIAL EVIDENCE

In the instant case, error in framing charges in the initial stage of investigation reflects the,

sloppy and weak, investigation made by the Police, which resulted in grave miscarriage of

justice.

The case of Prosecution in entirely based on circumstantial evidences, however, there is a

long mental distance between ‘maybe true’ and ‘must be true’ and the same divides

conjectures from sure conclusions. No direct evidences have been produced by the

prosecution and have made bare allegation without attributing whatsoever acts or omission

on the part of the accused persons, towards the commission of the offences.

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THE ARGUMENTS ADVANCED

1. THAT THE ACCUSED ARE NOT GUILTY OF OFFENCE UNDER SECTION 120 B READ WITH

SECTION 34 OF BPC

The Prosecution is proceeding in consonance with the mind-set of the common stigma

against the accused and has failed to see the problem in a prejudice-free scenario. The public

stigma has branded the accused – Panna as a terrorist however it is a grossly neglected fact

that he has been convicted under the Arms Act 1959, which doesn’t endorse the term

‘terrorist’ as opposed to TADA.

1.1. Conspiracy S.120B read with 34 –

The Act of Conspiracy defined in Section 120 A of the Barata Penal Code has 2 basic

ingredients –

1. That there must be an agreement between the persons who are alleged to conspire;

2. That the agreement should be

(i) For doing an illegal act, or

(ii) For doing by illegal means an act which may not itself be illegal.

1.1.A. There is no agreement for Conspiracy between Panna Boy and the co-accused –

The offence of criminal conspiracy is of a technical nature and an essential ingredient of

the offence is the agreement to commit an offence.1 This has to be proven by the

prosecution to establish this charge.2

Panna Boy has no mala-fide intention to collude with Mr. Jaimil and Saba in pursuance

of inflicting any nature of harm or demean or mar the image of Ms. Naika.

1
B.N. Mukherjee v. Emperor. AIR 1945 Nag 163
2
State of Bihar v. Kailash Prasad Sharma. AIR 1961 PAT 451.

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Moreover, The prosecution has adduced no substantial evidence to establish whether

there had been a prior agreement between the accused to commit an illegal act.

It is pertinent to note that when Saba and Jaimil allegedly approached Ms. Naika

regarding completion of the movie, Panna Boy was under incarceration; therefore, no

direct or explicit meeting of minds can be established.

The prosecution has completely relied on circumstantial evidences to prove the alleged

conspiracy, however, which are subjected to the following requisites as laid down by

the Supreme Court -

 The circumstances must be cogently and firmly established;


 The circumstances should unerringly point towards the guilt of the accused;

 The circumstances should leave no scope of doubt regarding commission of

the act by the accused.

The prosecution has cited unreliable circumstantial evidences to build up a chain of

events, which serves their purpose appropriately, but the evidences do not satisfy the

above-mentioned requisites, therefore are unreliable.

1.1.B. No illegal act has been committed by the accused –

Subsequent to Ms. Naika’s refusal to cooperate with Mr. Jaimil and Saba for

completion of the movie, they resorted to use of software editing technology in order

to meet their ends, which is per se a lawful activity, done with lawful means.

The accused have also been charged under Section 34 of BPC, however, it is pertinent

to note that Section 34 is merely a rule of evidence. It lays down a principle of liability

and does not create a substantive offence. The prosecution has erred by charging the

accused under Section 120B as well as Section 34 of BPC, when the accused has been

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charged for the offences punishable under Section 120B, application of Section 34

becomes redundant.3

Henceforth, the accused are not criminally liable under Section 120B read with

Section 34 of the BPC, for the offence of Criminal Conspiracy.

2. THAT PANNA BOY IS NOT GUILTY OF OFFENCE UNDER SECTION 227 OF BPC

The Hon’ble Court of Sessions has charged Panna Boy, inter alia, under section 227, which

enunciates the punishment for Violation of condition of remission of punishment. The

section simply recommends that a person who knowingly violates any condition of a

remission of punishment shall be punished with the punishment to which he was originally

sentenced, to the tune of remaining tenure of the sentence.

2.1. There was no violation of conditions of parole by Panna Boy –

Neither the Model Prison Manual 2003 nor the adopted Maharashtra Prison Manual 1979

restricts a prisoner from engaging in social or commercial activities or others of the sort

while on parole. The very essence of parole that - the release of a prisoner on leave not only

saves him from the evils of incarceration but also enables him to maintain social relations with

his family and the community. It also helps him maintain and develop a sense of self-confidence.

Continued contacts with family and the community sustain in him a hope for life. The provisions

for grant of leave should be liberalized to help a prisoner maintain a harmonious relationship

with his family4 -Stands to be defeated in case this Hon’ble court errs on appreciating this

argument.

On a bare perusal of facts, it is observed that Panna Boy visited the Hospital to attend his wife

3
Sayed Mohd. Owais v. State of Maharashtra. 2003 Cr LJ 303 (Bom)
4
Chapter 17, Model Prison Manual 2003

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regularly without failure, and also looked after his daughter, he even took her on outings to keep

her in good humor. He is a reformed person and is falsely being accused of the violation of

conditions of his parole.

2.2. Parole is not the same as Remission as defined under Section 227 –

Section 227 of BPC states:

Violation of condition of remission of punishment.—Whoever, having accepted any

conditional remission of punishment, knowingly violates any condition on which such

remission was granted, shall be punished with the punishment to which he was originally

sentenced, if he has already suffered no part of that punishment, and if he has suffered any

part of that punishment, then with so much of that punishment as he has not already

suffered.

Remission is the reduction of the amount of a sentence without changing its character. 5 In

the case of remission the guilt of the offender is not affected nor is the sentence of the court

affected, except in the sense that the person concerned does not suffer incarceration for the

entire period of the sentence but is relied from serving out a part of it.6

A reading of the abovementioned section clearly goes to show that remission is altogether

different from parole. Parole is a provision other than release from confinement but is

deemed to be a part of the imprisonment. Parole is thus, a grant of partial liberty or lessening

of restrictions on a convicted prisoner, but release on parole does not change the status of

prisoner. It is thus, clear that parole and remission are two different things.7

5
Nelson’s Indian Penal Code vol 2 1970, page 1161
6
Khajendra Nath v. Umesh Chandra AIR 1958 Assam 183
7
Radhakrishnan v. State 1999-1-LW (Cri) 381

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On a closer scrutiny of facts, the court is requested to appreciate the point that Panna Boy

was granted what is termed - Special Leave – under Model Prison Manual 2003. This

Special leave is of the nature of Parole. Pursuant to Rule 20 of Bombay (Parole and

Furlough) Rules 1959, parole is not to be counted as remission of sentence8. This clearly

illustrates the distinction between Parole and Remission of a sentence. Therefore, Section

227 is rendered inapplicable and frivolous.

3. THAT THE ACCUSED – PANNA BOY, SABA AND JAIMIL ARE NOT GUILTY OF OFFENCE UNDER

SECTION 501 AND 502 OF BPC

3.1. The accused are not criminally liable under Section 501 of BPC -

Section 501 of BPC enunciates - Whoever prints or engraves any matter, knowing or having

good reason to believe that such matter is defamatory of any person, shall be punished with

simple imprisonment for a term which may extend to two years, or with fine, or with both.

The police while fabricating this charge in its report overlooked the fact that the

abovementioned sections pertain to print media. The scope of this section encompasses the

definition of Printer as – a person who is either a publisher or a printer or both is liable under

this section as Printer. This can be contrasted with Broadcast Media and other Digital Media

under which one can appropriately classify the accused. Therefore, it is humbly submitted

that this charge be dismissed in light of inappropriateness of application of law.

8
ibid

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3.2. The accused are not criminally liable under Section 502 of BPC -

Further, as charged by the prosection, Section 502 of BPC enunciates - Whoever sells or

offers for sale any printed or engraved substance containing defamatory matter, knowing

that it contains such matter, shall be punished with simple imprisonment for a term which

may extend to two years, or with fine, or with both. To bring home this offence, the

prosecution is required to prove –

3.2.A. Panna Boy is not a seller as defined in the foregoing section –

Panna Boy, merely being an actor in the movie has no reasonable nexus with the release

and distribution of the alleged defamatory material. He has no role in marketing and

distribution of the project – Hit Factory in the instant case. Hence, he shall be discharged

of the liability under the sections 502 of BPC.

In the instant case, the Director (Mr. Jaimil) and Producer (Mr. Saba) also have been

under section 502 of BPC. However, in order to hold them criminally liable for this

offence, the essentials, mentioned below are required to be satisfied.

3.2.B. The Published Material should be defamatory as explained in Section 499 of the

BPC–

Ms. Naika in her complaint to the police has alleged that the accused have conspired to

use a body double impersonating her with the knowledge or reasons that their acts were

bound to malign her reputation as well as career prospects. However, the prosecution has

failed to support this claim with cogent and reliable proof.

 The accused did not shoot any additional scenes as alleged by the complainant –

The prosecution has failed to establish a necessary fact that the shooting of alleged

scenes using the body double actually took place. The prosecution has presented

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evidences, which are of circumstantial character, or hearsay, both of which, are

unreliable. The CCTV footage supplied by the superintendents of the hospital and the

mall, as well as their respective testimonies merely establishes the happening of

some film shooting at Star Hospital and Central mall. They have failed to link the

shootings with Panna or rather the project – Hit Factory.

It is further alleged by the prosecution that Panna boy was wearing a colorful retro

outfit, as reported by PW-4 (Ms. Khusboo), however, the prosecution has failed to

establish that the outfit was to be used as a costume or prop for the shooting, or that it

was connected in anyway with the same. Section 118 of Barata Evidence Act

elucidates that all persons shall be competent to testify unless the court considers

that they are prevented from understanding the questions put to them, or from giving

rational answers by tender years, extreme old age, disease, whether of body or mind

or any other cause of the same kind. The statement of PW-3 is so prevented from

admissibility under the above-mentioned section given her own deposition that she

suffered from anomalous trichromacy (of the nature Protanomaly and

Deuteranomaly), which is a type of inherited color vision deficiency9. It is pertinent

to note that no cure exists for inherited color vision defects since they are caused by

missing or incorrect visual pigments. 10 Hence, it is humbly submitted that her

statement be disregarded.

It is also submitted that no additional shoots of the movie were taken by using body

doubles of Ms. Naika without her consent; rather, the accused – Mr. Saba and Jaimil

9
Kalloniatis, Michael; Luu, Charles. "Psychophysics of Vision: The Perception of Color".
10
Color Blindness, University of Illinois at Chicago College of Medicine , available at
http://chicago.medicine.uic.edu/cms/One.aspx?pageId=15395672

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tried to summarize the shoot from the already filmed scenes by adopting software

editing techniques, from which the alleged posters of the movie were derived.

 The imputation does not lower complainant’s reputation in the estimation of

others –

‘Reputation’ is what others believe about the complainant. ‘Imputation’ on a man’s

character lowers him in the eyes of others and that is harm. But anything, which

lowers him in his own estimation, is no harm and therefore, it is no defamation.11 As

far as the dispute regarding release of existing scenes is concerned, it is submitted

that it was subject or her knowledge, at the time of signing in for the movie, that

Panna was convicted for drug possession and abuse in his adolescence and that he

had been arrested under TADA and associated with terrorism a decade ago,12 yet,

she opted to associate with the accused and filmed most of the movie scenes.

Therefore, the prosecution’s allegation that the released posters mar her reputation

and career is insubstantial as it has prosecution has failed to show how the posters

jeopardize her career and lower her image in public eyes.

3.2.C. The accused must have intention to defame or knowledge that such material contains

defamatory matter –

Intention to cause harm to reputation of a person is a sine qua non of the offence of

defamation. Where there is no intention to defame, no case under Section 499 and 502

can be made out.13 It is clear from the facts that it was not subject to the knowledge of

11
Explanation 4 of Section 499 of BPC, J Jailalitha v. Arcot Veerasamy. (1997) Cri LJ 4585 (Mad), P
Karthikeyan v. Ananthanarayan (1998) 1 Crimes 44 (mad)
12
Para. 1, Page 1 of moot proposition
13
Sunilakhya v. H.M. Jadwet AIR 1968 Cal 266

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any of the accused persons, at any point of point, that the contents of the release were

defamatory, or that they had any intention to defame Ms. Naika. All they were involved

in was completion of movie and while releasing of posters depicting Ms.Naika alongside

Mr. Panna Boy they never knew that this would amount to defamation, as they released it

with no intension to defame her.

4. THAT THE ACCUSED – MR. SABA AND MR. JAIMIL ARE NOT GUILTY OF OFFENCE UNDER

SECTION 385 OF BPC

Mr. Saba and Mr. Jaimil have been charged under Section 385 of BPC, which pertains to

putting a person in fear of injury to commit extortion. The section states - Whoever, in order

to the committing of extortion, puts any person in fear, or attempts to put any person in fear,

of any injury, shall be punished with imprisonment of either description for a term which

may extend to two years, or with fine, or with both. The extortion defined in Section 383

includes putting any person in fear of injury and covers this section, which deals with a less

serious offence,14 similarly, this section must be read in conjunction with Section 383,

BPC.15

The chief element in the offence of extortion is intentionally putting a person in fear of

injury to that person or to any other person and thereby dishonestly inducing the person so

put in fear to deliver to any person any property or a valuable security, etc. 16 The essence of

the offence of extortion is in the actual delivery of possession of property by the person put

14
Mansharam Gianchand v. Emperor AIR 1941 Sind 36
15
Tonumal Udhosingh v. Emperor AIR 1944 Sind 203
16
Dhananjay alias Dhananjay Kumar Singh v. State of Bihar and Anr. 2007 Cri LJ 1440

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in fear and the offence is not complete before such delivery.17 The object of extortion is

obtaining Money or property from another unjustly, in the instant set of facts, the calls made

to threaten Ms. Naika nowhere articulate about delivery of any sort of money, property or

valuable security.18

The offence under section 385 of the BPC requires any act to be done by the accused, which

was in order to commit extortion.19 There lies a disparity between the statement of PW-4

and transcripts of the call details from the Cello Mobile Company records20 as the latter

nowhere talks about withdrawal of the suit by PW-4, which is alleged to be the main reason

of the threat. In addition, there is no such description regarding delivery of any valuable

security, money or property. As per the evidence produced by the prosecution in Annexure

4, it cannot even remotely be established that the accused is the perpetrator or executor or

both of the threatening calls.

The fear, as required under the offence of extortion must of such a nature and extent as to

unsettle the mind of the person on whom it operates.21 Also, There can be no extortion

unless a person is, by threat of injury induced to deliver any property to the culprit.22 The

17
Labhshanker Keshavji and Anr. v. State AIR 1955 SAU 42
18
Annexure 4, Page 13 of the moot proposition
19
T.F. Pardiwala and Ors. v. The State of Rajasthan and M.K. Gupta 1980 WLN (UC) 222
20
Exhibit no.4, Page 4 of the moot proposition
21
Walton, 1863 9 Cox 268
22
Mangal Singh v. Rex AIR 1949 ALL 599: Labhshanker Keshavji v. State AIR 1955 SAU 42

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fear must be the inducement for delivery.23

The calls so made to Ms. Naika were merely empty threats, which cannot be called to have

unsettled her mind. In addition, they nowhere concern inducement for delivery of any

property, whatsoever. Thus, the most essential ingredients of the offence of extortion vis-à-

vis Section 385 are not fulfilled and the prosecution has failed to establish the requirements

under this offence.

Moreover, it cannot be even remotely established that these calls were made or planned by

the accused persons. The transcripts of call details merely indicate that the threat was made

by an anonymous male voice, which cannot be directly attributed to the accused. Hence, the

accused persons are not criminally liable under this charge.

5. THAT THE PROSECUTION’S CASE REFLECTS ERROR IN FRAMING CHARGES, MISCARRIAGE OF

JUSTICE AND RELIANCE ON MERE CIRCUMSTANTIAL EVIDENCE

5.1. The prosecution has erred in framing of charges thereby causing grave miscarriage of

justice –

23
R v. Walton 32 LJMC 79

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Framing of a charge is part of the process of trial under the Code of Criminal Procedure. 24

In the instant case, error in framing charges in the initial stage of investigation reflects the,

sloppy and weak, investigation made by the Police.

Article 21 of the Constitution of India commands that no person shall be deprived of his life

and liberty except according to the procedure established by law. In Criminal jurisprudence,

the only safeguard available to an innocent person is the scrupulous and strict adherence to

the procedure prescribed for the purpose of concluding the guilt of the accused person. Thus,

whenever, any of the prescribed procedure is not duly followed and complied with, and

where such non-compliance, expressly or by necessary implication, frustrates or weakens the

case of the accused person, it eventuates miscarriage of justice upon the accused. The

Criminal Procedure Code, Section 214-218 lays down the procedure for framing of charges

whereby, strict adherence to this procedure is required however, the prosecution has erred in

framing charges while disregarding the previously mentioned requisite resulting in

miscarriage of justice to the accused.

Every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a

presiding judge to explore every avenue open to him in order to discover the truth and to

advance the cause of justice.25 In the instant case, the Presiding Judge ought to have clearly

noticed the mistake that was committed by the Police while framing the charges in final

report due to which total miscarriage of justice has been done.

5.2. The Prosecution’s case is largely based on Circumstantial Evidence –

24
In Re: Government of Assam and Ors. 2007 (4) GLT 1
25
Ram Chancier v. The State of Haryana 1981 Cri LJ 609

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In the case of Ram Singh v. Sonia,26the court has clearly sounded a note of caution that in a

case depending largely upon circumstantial evidence, there is always a danger that

conjecture or suspicion may take the place of legal proof. The court has to be watchful and

avoid the danger of allowing the suspicion to make the place of legal proof. There is a long

mental distance between ‘maybe true’ and ‘must be true’ and the same divides conjectures

from sure conclusions.

The case of Prosecution in entirely based on circumstantial evidences. No direct evidences

have been produced. The instant case of Prosecution contains bare allegation without

attributing whatsoever acts or omission on the part of the accused person, towards the

commission of the offences.

Precautions must be taken in accepting circumstantial evidence,27namely -

 Evidence must be fully established and conclusive in nature


 Conclusion must be consistent with the hypothesis of guilt of the accused

 Circumstances should not show the possibility that the act might have been

committed by someone else other than the accused.

It is reflected from the prosecutions case that the circumstantial evidences produced do not

comply with the above-mentioned requisites.

Therefore it is most humbly submitted that the charges are baseless and no offence has

been made and the evidences shall be disregarded.

26
(2007) 3 SCC 1
27
State of U.P. v. Ashok Kumar Srivastav (1992) Cri LJ 1104; State of U.P. v. Ravindra Prakash Mittal AIR

1992 SC 2045

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THE PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is most

humbly and respectfully prayed before this Hon’ble Court to adjudge and declare that:

1. Panna Boy be honorably acquitted from the charges under Section 120B read with 34,

227, 501 and 502 of BPC.

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2. Saba be honorably acquitted from the charges under Section 120B read with 34, 385, 501

and 502 of BPC.

3. Jaimil be honorably acquitted from the charges under Section 120B read with 34, 385,

501 and 502 of BPC.

And/Or

pass any other judgment in light of justice, equality and good conscience, as it may deem

apposite.

All of which is most humbly and respectfully submiitted

Date: MM xxh, 2014 Counsel for Defense

Place: Bambi

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