IN THE HON’BLE SUPREME COURT OF SINDH

APPEAL NO. - _______ OF 2018

JAVED AND ANR. ………………………………………………….........................APPELLANTS

V.

SHAZIA & ANR.………………………………………………………………….RESPONDENTS

CLUBBED WITH

SHAZIA & ANR……………………………………………………………………PETITIONER

V.

JAVED AND ANR………………………………………………………………….RESPONDENTS

WRITTEN SUBMISSIONS ON BEHALF OF APPELLANT/RESPONDENTS

5 IMS UNISON, NATIONAL MOOT COURT COMPETITION - 2018

 INDEX

LIST OF ABBREVIATIONS……………………………………………………………….
INDEX OF AUTHORITIES………………………………………………………………
STATEMENT OF JURISDICTION………………………………………………………
SUMMARY OF FACTS
SUMMARY OF ARGUMENTS
PLEADINGS
1. WEATHER THE ABOVE GROUNDS ARE SUFFICIENT TO DECIDE THE GUILTY OF
ACCUSED?
A. Presumption Of Innocence
B. The Accused Is Not Guilty Under Section 354 And 498 A Of IPC, 1860
C. Circumstantial Evidence Are Not Of Conclusive Nature
D. Prosecution Does Not Establish Case Beyond Reasonable Doubt

2. WEATHER IN THE LIGHT OF PRESENT FACTS AND CIRCUMSTANCES, THE ACT OF

MEDIA HAS VIOLATED THE PRIVACY OF ACCUSED AND HAS GIVEN RISE TO TRIAL
BY MEDIA?
A. Accused Can Claim His Right To Privacy
B. Defamation By Act Of News Channels
C. Act Of News Channels Has Given Rise To Trial By Media

PRAYER
 LIST OF ABBREVIATIONS

Acc. According

AIR All India Reporter

Anr. Another

Art. Article

Assn. Association

Cr.P.C Criminal Procedure Code, 1973

CJI Chief Justice of India

Etc. Et cetera

HC High Court

Hon’ble Honourable

IEA Indian Evidence Act, 1872

IPC Indian Penal Code, 1860

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

Sd/- Signed

Sec. Section
UOI Union of India

v. Versus

& And
 INDEX OF AUTHORITIES

STATUTES
Constitution of India
Indian Penal Code, 1860
Code of Criminal Procedure, 1973
Indian Evidence Act, 1860

CASES

1. Bhagat Ram v. State of Punjab………………………………………………………...28

2. Bithal Eknath Adlinge v. State of Maharashtra………………………………………..34
3. Brajendra v. State of M.P……………………………………………………………...37
4. Chandara Raja Kumari v. Police Commissioner Hyderabad………………………….69
5. Chhotanney and Ors v. State of U.P……………………………………………………47
6. Damodra Shenoi v. Public prosecutor, Emakulam……………………………………64
7. Dhananjoy Chatterjee v. State of W.B…………………………………………………38
8. D.N. Prasad v. Principal Secretary…………………………………………………….75
9. Earabhadrappa Alias Krishnappa v. State of Karnataka……………………………….32
10. Eradu v. State of Hyderabad……………………………………………………………27
11. Gobind v. State of M.P…………………………………………………………………51
12. Gurpreet Singh v. State of Haryana……………………………………………………22
13. Gedu Alias Parameswar Patra v. State of Orissa………………………………………33
14. Haribhajan v. State………………………………………………………………………4
15. Hanumant Govind Nargundkar v. State of M.P………………………………………31
16. Hukam Singh v. State of Rajasthan ……………………………………………….…26
17. Jahar Lal Das v. State of Orissa…………………………………………...…………35
18. Jetha Lal v. State of Gujarat……………………………………………………………45
19. Kartongen Kemiochforbaltning AB v. State………………………………………77,78
20. Kusuma Ankama Rao v. State of A.P…………………………………………….……19
21. Kali Ram v. State of H.P……………………………………………………...………..49
22. Kharak Singh v. State of U.P…………………………………………………………..50
23. Mahmood v. State of U.P………………………………………………………………36
24. Md. Alimuddin and Ors v. State of Assam…………………………………………….46
25. Mr.X v. Hospital Z …………………………………………………………………53,54
26. Naina Mohammad Re ………………………………………………………………….44
27. Naresh Kumar v. State of Maharashtra………………………………………………...24
28. Padala Veera Reddy v. State of A.P……………………………………………………29
29. Pandurang Sitaram Bhagwat v. State of Maharashtra…………………………………25
 30. Premawati Das v.Thakur Das …………………………………………………………11
31. PUCL v. Union of India………………………………………………………………52
32. Rajendra Sail v. M.P.P High Court Bar Assn…………………………………………74
33. Ramanand……………………………………………………………………….…….67
34. Ram Dasv. State of W.B……………………………………………………………….9
35. Ramesh v. State of Rajasthan…………………………………………………………21
36. Reynolds v. Times Newspapers Ltd……………………………………………………81
37. Rishikesh v. State……………………………………………………………………….3
38. R. Raja Gopal v. State of T.N…………………………………………………………68
39. Sailendra Kumar Roy Choudhury v. Territory of Tripura……………………………12
40. Sakharam v. State of M.P…………………………………………………………..10,20
41. Sankara ………………………………………………………………………………...66
42. Sharad Birdi Chand Sarda v. State of Maharashtra…………………………………….16
43. Shivaji v. State of Maharashtra ………………………………………………………..40
44. Shivu v. High Court of Karnataka……………………………………………………...39
45. Surya Prakash Khatri v. Smt. Madhu Trehan…………………………………………..76
46. State v. Charulata Joshi………………………………………………………………...61
47. State ( Delhi Admn.) v. V.C. Shukla…………………………………………………...43
48. State of Haryana v. Jagbir Singh ………………………………………………………18
49. State of Maharashtra v. Annapa Bandu Kavatage……………………………………...23
50. State of Maharashtra v. Madhukar Narain Mardikar…………………………………..62
51. State of Punjab v. Major Singh………………………………………………………….5
52. State of Punjab v. Jagir Singh, Baljeet Singh and Karam Singh………………………48
53. State of Rajasthan v. Raja Ram ………………………………………………………..17
54. State of U.P. v. Ashok Kumar Shrivastava…………………………………………….30
55. State v. Sanjay Gandhi………………………………………………………………......2
56. Swami Nithvananda and Proff. S.R. Siras………………………………..……………56
57. Tika v. state of U.P……………...…………………………………………………….....1

BOOKS
2 SARKAR & JUSTICE KHASTGIR, INDIAN PENAL CODE, 1860 (S.P. Sen Gupta ed., 3 eds. Kamal Law
House, 2015).
 STATEMENT OF JURISDICTION

Appellants humbly submits this memorandum before this Hon’ble Supreme court. The appeal
has been filed under Article 136(1) of The Constitution of India. It sets forth the facts and laws
on which the claims are based.
 STATEMENT OF FACTS

The Union of Sind, in Asia, is a democratic country and has a progressing society. In 2017, the
Supreme Court of the Country pronounced the invalidation of the system of “Triple Talaq” for
the purpose of Divorce under the Muslim Personal Laws, for it being against the basic
principles of the Constitution of Sind, since it violated the rights for Women that had been
enshrined in the Constitution.

A young couple, Javed (24) and Swati (21) were in a relationship and wanted to marry each
other but since they were from different religions, their families were against their marriage.
So, Javed requested Swati to change her religion to Islam. She agreed for the same and on 20th
June 2016 Swati was given the name “Shazia” by the Moulvi and they got married on 21st
August of the same year.

After the marriage Shazia and Javed started living separately from their family and Shazia
started teaching but due to family problems Javed decided to shift with his parents on 2nd
November 2016 on 6th January 2017 they shifted to there in laws house slowly things started
to change and problems started emerging in Shazia and Javed’s marital life I one or two
instances Javed scolded Shazia very badly in front of his family.

On 15th September 2017 there was a family function at Javed’s place on some issue Javed and
Shazia had a heated argument and Javed pronounced talaq thrice on Shazia. Shazia after that
went to her parents house after that Shazia avoided the attempts made by Javed to talk to her
on 21st November 2017 Javed asked Shazia to meet Shazia replied that she is home alone
tonight but she does not want to meet Javed on the same night Javed went to Shazia’s place
they both had a heated argument and then Javed forced himself on Shazia against her will she
surrendered to Javed’s will next day she told about the incident to her family and they lodged
a complaint against Javed for committing rape with her FIR No. 28/2017,Assault or use of
criminal force to woman with intent to outrage her modesty under section 354,Rape under
section 375 and cruelty under section 498a,Voluntarily causing grievous hurt under section 321
under the Sind Penal Code on 22nd November 2017.

This case was made a Political issue and many NGO’s come forward demanding justice for
Shazia. The police submitted the charge sheet. The Trial court due to societal pressure
concluded Trial in 6 months. In its judgements dated 28th May 2018 held that Javed was not
guilty of rape but was libel for offence of cruelty under section 498A and convicted for two-
year imprisonment and a fine of Rs. 10,000/- was imposed. And also held libel for outraging
the modesty of women under section 354, convicted for one-year simple imprisonment and
fine of Rs. 10,000/- was imposed on Javed. The court in its judgement added that the aforesaid
punishments shall run concurrently.

Javed made an apple on 2nd July 2018 before High Court. And the trial court was influenced
by media reports and without going into further evidence wrongly convicted him for the said
offences which he had not committed. He plead that o fair trial was not done and he should be
acquitted of all charges.

In Aguest 2018, Shazia with the help of NGO Justice for women filed a writ petition before
Supreme Court W.P. No. 2302 /2018. Shazia raised issue of making marital rape as offence
and for justice in the absence of any existing laws through such extra-ordinary jurisdiction as
the court deems fit.

The petition of Javed in High Court was dismissed and the judgement of trial court was upheld
by the order date 10th Aug. 2018.

Then Javed filed a Special Leave Petition, S.L.P. No. 1920/2018. Javed contended that to
Shazia was his legally wedded wife. So, conviction under section 354 was baseless and no act
on Shazia could be termed as “Sexual Assault”. He also asked for a fair trial as he said Trial
court and High Court fail in providing him. He also said that his Right to Privacy is also
infringed as his personal life was being discussed on T.V. channels.
 STATEMENT OF ISSUES

1. WEATHER THE ABOVE GROUNDS ARE SUFFICIENT TO DECIDE THE GUILTY OF

ACCUSED?

2. WEATHER IN THE LIGHT OF PRESENT FACTS AND CIRCUMSTANCES, THE ACT OF

MEDIA HAS VIOLATED THE PRIVACY OF ACCUSED AND HAS GIVEN RISE TO TRIAL BY

MEDIA?
 SUMMARY OF ARGUMENTS

Decision of High Court must be negated

The Counsel on behalf of Appellants most humbly submits before this Hon’ble court that the
judgement of High Court of Madhya Sindh suffers from infirmity of law and the same must
be set aside.

Act of News Channel violated Right to Privacy of the Appellants and given rise to
Media Trial
 PLEADINGS

1. WEATHER THE ABOVE GROUNDS ARE SUFFICIENT TO DECIDE THE GUILTY OF

ACCUSED?

The counsel on behalf of the appellants humbly submits before this hon’ble court that high
court of Madhya Sind erred in convicting the appellants as there was as no evidence to prove
their guilt. In the present case the high court had undoubtedly upheld the order of trial court
which has no evidentiary value and was influenced by media.

Presumption of innocence

One of the basic principles which has to be kept in mind while administration of justice
forcriminal cases that the person who is accused should be considered not guilty until
prosecution proves it guilty beyond doubt. It has been evidently provided for in section 105 of
the Indian Evidence act 1872. That it is for the prosecution to establish beyond reasonable
doubt all essential ingredients of the crime especially mens rea to prove the guilt of the accused.
This has further been emphasised in Tika v. state of U.P.1.

Accused can not be convicted until prosecution proves him guilty beyond reasonable doubt,
and the burden of proof is on prosecution. Until the accused is proved guilty he has to be
considered innocent.

Proof of facts by preponderance of probabilies in civil case is not foreign to criminal

jurisprudence also.2 Preponderance of probabilities can prove an exception. Complete proof of
an exception by the preponderance of probability cannot fall short of elimination of reasonable
doubt about the ingredients of the offence.3Accused is not required to prove his case beyond
reasonable doubt. The onus is discharged once he proves the importance of probability beyond
reasonable doubt. As soon as the onus is discharged the burden of proof shifts on the
prosecution. The prosecution still has to discharge the original onus. Onus on the accused may
well be compared to the party in a civil proceeding. Just as in civil proceeding the court trying
an issue makes its decision by adopting the best of probabilities, so must a criminal court hold

1
AIR1974 SC 155.
2
State v. Sanjay Gandhi, AIR 1978 SC 961.
3
Rishikesh v. state AIR 1970 ALL 51 (FB).
the plea by the accused proved if a preponderance of probability established by the evidence
lead by him. 4

Therefore, in the case at hand it is pleaded before this hon’ble court that preponderance of
probability has been established due to the circumstantial evidence presented.

The accused is not guilty under section 354 and 498 A of IPC, 1860

With respect to the first submission, the council humbly submits before this hon’ble court that
the allegations against the accused must not be treated as no direct evidence has been provided
by the prosecution to prove the guilt of the accuse beyond reasonable doubt. The accused
cannot be held guilty under section 354 and 498 A as all the essential ingredients are not
fulfilled.

In case of State of Punjab v. Major Singh,5 the essential ingredients of the offence under section
3546 of Indian penal code, 1860 are as follows:

1. That the person concerned is a woman of any age;

2. That the accused assaulted or used criminal force to her;
3. That the accused there by intended to outrage the modesty of that woman; or that he
knew to be likely that he would thereby outrage her modesty.

From the said provision it is clear that there must be intention to outrage the modesty of the
woman. From the facts and circumstances the court can definitely infer as to whether the
accused is having required intention.7 In the case at hand the accused was husband of the
deceased and from the given facts we can infer that many times he tried to talk to his wife for
solving their problems.8 From these facts we can infer that there is no bad intention the part of
accused to outrage the modesty of the deceased. It cannot be held that he did so with intent to
outrage her modesty, or with the knowledge that it would be outraged.9

4
Haribhajan v. state, AIR 1969 SC 97.
5
AIR 1967 SC 63.
6
Section 354. Whoever assaults or uses criminal force to any women, intending to outrage or knowing it to be
likely that he will there by outrage her modesty.
7
2 SARKAR & JUSTICE KHASTGIR, INDIAN PENAL CODE, 1860, 1613 (S.P. Sen Gupta ed., 3 eds. Kamal Law
House, 2015).
8
Fact sheet
9
Ram Das v. State of W.B., AIR 1954 SC 711.
In the case of Sakharam v. State of Madhya Pradesh,10 when presumption of innocence is sort
to be displaced by the prosecution on the basis of circumstantial evidence must unmistakably
prove the guilt beyond reasonable doubt. But the prosecution has not been able to prove the
charge against the accused beyond reasonable doubt.

It cannot be said that the evidence on the record shows that prosecution has been able to prove
prima facie that the accused committed offence under section 354 and 498 A of the Indian
penal code as those witnesses are not eye witnesses of the occurrence and merely repeat what
they were told by the deceased.11

In any event, in view of the improbabilities, absurdities, inconsistencies, falsity, and

improvements at every stage, already pointed out, it is not possible to convince one’s mind
beyond reasonable doubt, and the benefit of that doubt must go to the appellant.12

Under section 354 of IPC reference is made to “any woman” suggesting that a person may be
held guilty of outraging the modesty of any women excluding the one who is his wife and some
specific instances are however to be examined before arriving at the conclusion that a husband
may be held guilty of outraging the modesty of his wife.13 These are:

1. If the husband expresses his affection towards his wife in public in an unkind manner
such conduct will amount to an indecent behaviour, against public morality and amount
to an outrage under section 354.
2. In case husband and wife are alone, it may be essential that some liberty be permitted
to the spouses with regard to certain acts which are a necessary part of conjugal
relationship. Certain overtures or acts of affection and love in private by husband, which
may not be acceptable to the wife in public, while have to be conceded as not amounting
to outrage under the provision.

To bring home the guilt of the accused the prosecution is to establish the following,14

1. That the accused is the husband or the relative of the husband of the woman is
questioned;
2. That the said woman was subjected to cruelty by her husband and / or his relative;

10
(1992) 2 SCC 153.
11
Premawati Das v. Thakur Das, 1975 Cr LJ 880
12
Sailendra Kumar Roy Choudhury v. Territory of Tripura, AIR 1959 TRI 11
13
Journal of the Indian law institute (book)
14
2 SARKAR & JUSTICE KHASTGIR, INDIAN PENAL CODE, 1860, 2484 (S.P. Sen Gupta ed., 3 eds. Kamal Law
House, 2015).
 3. That such cruelty was perpetrated on the said woman-
(a) By any wilful conduct of such nature as is likely to drive such woman to commit
suicide or to cause grave injury or danger to life, limb or health, whether mental or
physical, or
(b) By way of harassment of such woman with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or
on account of failure by her or any person related to her to meet such demand.

In the case at hand there are no direct evidence that the conduct of accused was of such a nature
as likely to drive deceased to commit suicide or to cause grave injury or danger to life, limb or
health whether mental or physical. And there was not any kind of sign of harassment on her
body and the court only relied on her statement there is no other evidence so the doubt arises
here.15

Circumstantial evidence is of not conclusive nature

In Sharad Birdhichand Sarda vs. State of Maharashtra,16 it has been held that onus was on the
prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot
be cured by false defence or plea. The conditions precedent before conviction could be based
on circumstantial evidence must be fully established. The conditions are:

 The circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned ‘must or should’ and not may be
established;

 The facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;

 The circumstances should be of a conclusive nature and tendency;

 They should exclude every possible hypothesis except one to be proved; and

15
Fact sheet
16
(1984) 4 SCC 116 (1).
  There must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of accused and must show
in that human possibility the must have been done with the accused.

These aspects were highlighted in State of Rajasthan v. Raja Ram17, State of Haryana v. Jagbir
Singh18 and Kusuma Ankama Rao v. State of A.P.19

Similarly, while considering the case of cruelty and outraging modesty this court observed that
the statement prosecutrix is a strong circumstance but alone in absence of any evidence of
violence on the deceased can not be held to be conclusive proof and there must be some
evidence to arrive at a conclusion that the husband and husband alone was responsible there
for.20 The evidence produced by the prosecution should not be of such a nature that may make
the conviction of the appellant unsustainable.21 The court in plethora of judgments has held
that when the conviction is based on circumstantial evidence solely, then there should not be
any snap in the chain of circumstances. If there is a snap in chain, the accused is entitled to
benefit of doubt.22 Whenever there is break in the chain of circumstances, the accused is entitled
to the benefit of doubt.23

In the case of circumstantial evidence, no such presumption can be drawn unless the
circumstances proved are completely incompatible with the innocence of accused.24 In the case
at hand court should not rely only on the statement given by the deceased and accused should
be considered innocent until prosecution proves him guilty beyond any reasonable doubt. The
court is of the opinion that having regard to the totality of the facts and circumstances of the
case, the appellant is entitled to be given the benefit of doubt.25

In the case of Hukam singh vs. State of Rajasthan26Honb’le court laid down that when the case
rests solely on circumstantial evidence the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with the innocence of the
accused or the guilt of any other person. The circumstances from which an inference as to the

17
(2003) 8 SCC 180.
18
(2003) 11 SCC 261.
19
(2008) 13 SCC 257.
20
Sakharam vs. State of Madhya Pradesh, (1992) 2 SCC 153.
21
Ramesh vs. State of Rajasthan, (2009) 12 SCC 603.
22
Gurpreet Singh vs. State of Haryana, (2002) 8 SCC 18.
23
State of Maharashtra vs. Annappa Bandu Kavatage, (1979) 4 SCC 715.
24
Naresh Kumar vs. State of Maharashtra, (1980) 2 SCC 358.
25
Pandurang Sitaram Bhagwat vs. state of Maharashtra, (2005) 9 SCC 44.
26
(1977) 2 SCC 99.
guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown
to be closely connected with the principle fact sort to be inferred from those circumstances.27In
Bhagat ram v. state of Punjab28 it was laid down that where the case depends upon the
conclusion drawn from circumstances the cumulative effect of the circumstances must be such
as to [negate] the innocence of the accused and bring the offences home beyond any reasonable
doubt. Further, the proved circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy v. State of Arunachal Pradesh29 it was laid down that when a case rests
upon circumstantial evidence such evidence must satisfy the following tests:

1. The circumstances from which an inference of guilt is sort to be drawn, must be

cogently and firmly established;
2. Those circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
3. The circumstances, taken cumulatively, should form a chain so complete that there
is no escape from the conclusion that with in all human probability the crime was
committed by the accused and none else; and

The circumstantial evidence in order to sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be inconsistent with his
innocence.

In State of U.P. v. Ashok Kumar Shrivastava30it was pointed out that great care must be taken
in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two
inferences, the one is in favour of the accused must be accepted. It was also pointed out that
the circumstances relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent with the hypothesis of guilt.

This court laid down as far back as in 1952 that circumstantial evidence solely should not be
reason for the conviction of accused it should be tested on the touch stone of law relating to
circumstantial evidence.

27
Eradu v. state of Hyderabad, AIR 1956 SC 316.
28
AIR 1954 SC 621.
29
1991 SCC (Cri) 407.
30
(1992) 2 SCC 86.
In Hanumant Govind Nargundkar v. State of M.P.31It was observed thus:

“it is well to remember that in case where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by the accused.”

In the case in which the evidence is purely of the circumstantial nature, the facts and
circumstances from which conclusion of guilt is sort to be drawn must be fully established
beyond any reasonable doubt and the facts and circumstances should not only be consistent
with the guilt of the accused but they must be in there effect as to be entirely incompatible with
the innocence of the accused and must exclude every reasonable hypothesis consistent with his
innocence.32

It is well settled principle that where the case is solely mainly based on circumstantial evidence,
the court must satisfy itself that various circumstances in the chain of evidence should be
established clearly and that the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused.33

It has been consistently laid down by this court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the accused or the
guilt of any other person.34in the present case it was not clear that deceased was subjected to
cruelty and outraging modesty. In the present case all incriminating facts and circumstances
are not found to be compatible as there is no sign of cruelty on the body of the deceased, who
is the sole witness of crime and discrepancy of statements given by the witness.

When even a link breaks away, the chain of circumstances gets snapped and other
circumstances cannot in any manner establish the guilt of the accused beyond all reasonable

31
AIR 1952 SC 343
32
Earabhadrappa alias Krishnappa v. state of Karnatak, (1983) 2 SCC 330.
33
Gedu Alias Parameswar Patra v. State of Orissa
34
Vithal Eknath Adlinge v. state of Maharashtra
doubts.35 When attempting to convict on circumstantial evidence court must be firmly satisfied
on the following three things:36

1. The circumstances, from which the inference of guilt is to be drawn must have fully
been established unimpeachable evidence beyond a shadow of doubt.
2. The circumstances are of determinative tendency, unerringly pointing towards the
guilt of the accused.
3. The circumstances taken collectively are incapable of explanation on any
reasonable hypothesis except that of the guilt sort to be proved against him.

In case of Brajendra Singh v. State of M.P.37, the court laid down that:

“Furthermore, the rule which needs to be observed by the court while dealing with the cases
of circumstantial evidence is that the best evidence must be adduced which the nature of the
case admits. The circumstances have to be examined cumulatively. The court has to examine
the complete chain of events and then see weather all the material facts sought to be established
by the prosecution to bring home the guilty of the accused, have been proved beyond
reasonable doubt. It has to be kept in mind that all these principles are based upon one basic
cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that
the accused is entitled to a just and fair trial.”

This aspect was also highlighted in Dhananjoy Chatterjee v. State of W.B.38, Shivu v. High
Court of Karnataka39 and Shivaji v. State of Maharashtra.40

In the background of what has been stated above relating to the law on circumstantial evidence,
the only question to be examined is whether the statement of deceased can be held sufficient
to hold the appellant guilty. Circumstances on which the trial court and the high court had relied
on to hold the accused guilty by no stretch of imagination can be determinative of the facts that
the accused was responsible for the commission of outraging modesty and cruelty. In the case
at hand trial court and high court convicted the accused only on the basis of statement of the
prosecutrix. There is no such evidence to prove the charges beyond reasonable doubt, hence

35
Jahar Lal Das v. state of Orissa,1991 (3) SCC 27
36
Mahmood v. state of U.P., AIR 1976 SC 69
37
(2012) 4 SCC 289
38
(1994) 2 SCC 220
39
(2007) 4 SCC 713
40
(2008) 15 SCC 269
there is a snap in chain and the doubt arises, and according to the law mentioned above the
benefit of doubt should always be given to the accused.

The prosecution fails to pinpoint how the accused is solely responsible for committing of the
crime, notwithstanding that the entire case sets squarely upon contradictory circumstantial
evidence.

Prosecution does not establish case beyond reasonable doubt

It is humbly submitted before this hon’ble court that the burden of proving guilt of accused lies
on prosecution.41 In the present case high court had erred in considering the evidences on
record. Supreme court has set aside the decision of conviction where the high court erred in
considering the evidences by the prosecution. “Whoever desires any court to give judgement
as to any legal right or liability dependent on the existence of facts which he asserts must prove
that fact exists.” Even total silence of the accused as to any defence on his part does not lighten
the prosecution burden to prove its case satisfactorily.42 In a criminal trial the burden of proving
the guilt of the accused beyond all reasonable doubt always rests on the prosecution and on its
failure it can’t fall back upon evidence adduced by the accused in support of his defence. The
accused was given the benefit of doubt.43

It does not affect the onus of proving the guilt of the accused. That onus rests on the prosecution
and is not shifted on to the accused by the section 106 of IEA. 44 It cannot be used to shift the
onus of establishing an essential ingredient of the offence on the accused.45 The SC ruled out
that prosecution cannot derive any advantage from falsity or other infirmities of the defence
version, so long as it does not discharge its initial burden of proving its case beyond all
reasonable doubt.46 A reasonable doubt must not be imaginary, trivial or merely possible doubt;
but a fare doubt based upon reason and common sense arising out of the evidence of the case.47
Here the accused cannot convict on this ground.

Every case in the final analysis would have to depend upon its own facts.48 Another golden
thread which runs through the web of the administration of justice in criminal cases is that if

41
Sec. 101 of IEA, 1872
42
Bishandas v. State of Punjab, AIR, 1975 SC 573.
43
State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382.
44
Naina Mohammad Re, 1960 Cr. LJ 620.
45
Jetha Lal v. State of Gujarat, AIR 1968 Guj 163.
46
Md. Alimuddin and Ors v. State of Assam, 1992 Cr. LJ 3287.
47
Chhotanney and Ors v. State of U.P., AIR 2009 SC 2013
48
State of Punjab v. Jagir Singh, Baljeet Singh and Karam Singh, AIR 1973 SC 2407
two views are possible on the evidence adduced in the case one pointing to the guilt of the
accused and the other to his innocence, the view which is favourable to the accused should be
adopted.49 And here in our case lack of evidence, contradictory evidence and unreliable
circumstantial evidence are enough to make a common man judge it to be a reasonable doubt.

Appellant is falsely prosecuting by the respondent. Therefore, in light of the above discussion
and material on record clearly shows that in the present case prosecution’s story paid heavy
reliance on unreliable evidence. Moreover, the accuse is falsely being framed by the
prosecution which created a large cloud of reasonable doubt which shall only be considered as
a false allegation against accused. The judgement and order of conviction passed by the trial
court and upheld by high court was based upon improper appreciation of evidence, the
circumstances found established by court in the instant case should have been necessarily
doubted.

In the light of abovementioned reasons, facts and cases cited, it is most humbly submitted that
the decision of High Court in convicting the Appellants suffers from infirmity of law as the
legal principles are not properly taken into consideration and the same must be set aside.

2. WEATHER IN THE LIGHT OF PRESENT FACTS AND CIRCUMSTANCES, THE ACT OF

MEDIA HAS VIOLATED THE PRIVACY OF ACCUSED AND HAS GIVEN RISE TO TRIAL BY

MEDIA?

With regard to this issue appellant most humbly submits before this hon’ble court that the act
of media in broadcasting the personal life of accused has resulted in violation of privacy and
has given rise to trial by media. The appellant submits that accused can claim his right to
privacy and T.V channels has given rise to trial by media.

Accused can claim his right to privacy

Right to privacy is enshrined under article 21 of constitution of India. Supreme court over a
period of time gave expansive interpretation of the phrase ‘personal liberty’. Right to privacy
is not considered as a fundamental right in constitution but has been inferred from article 21.
The first decision of this court is dealing with the aspect is Kharak Singh v. State of U.P.50 In
the case of Gobind v. State of M.P.51 It was stated that right to privacy is a ‘right to be let alone’
and a citizen ‘to safeguard the privacy of his own, his family, marriage, procreation,

49
Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773.
50
AIR 1963 SC 1295.
51
(1975) 2 SCC 148.
motherhood, child bearing and education among other matters’. The case of People’s Union
for civil liberties (PUCL) v. Union of India,52 it was held that privacy as a concept may be too
broad and moralistic to define it judicially and whether right to privacy can be claimed or has
been infringed in a given case would depend on the facts of the said case.

In the case of Mr. X v. Hospital Z53 It was held by supreme court that even the disclosure of
true private facts may invade the right to privacy.

In the case at hand news channels are clearly violating accused’s privacy. In case of Mr. X v.
Hospital Z,54. It was said by supreme court that disclosure of true facts may amount to an
invasion of the right to privacy. In the case at hand the case was highlighted and widely debated
in media, so it is a clear violation of right to privacy of accused.55

In the case of Swami Nithyananda and Proff. S.R. Siras.56 It was held that the individual right
to privacy has been violated in the name of public morality. Further such an act performed by
the respondent is unfair as it is concerned with right to privacy of a man. Discussing his private
movement publicly is unfair and putting an allegation of cruelty and outraging modesty of his
wife which was misinterpreted by such a frivolous act of respondent.57

Section 558 of the Cable Television Network (regulation) Act, 1995 provides that no person
shall transmit through a cable service any program unless such programme is in conformity
with the prescribed rules. Rule 6 (d)59 provides that no programme can be transmitted or
retransmitted on any cable service which contains anything obscene, defamatory, deliberate,
false and suggestive innuendoes and half- truths. Channels responsible for transmission / re-
transmission of any programme should follow the rules prescribed in programming code. In
the case at hand news channels has not followed the rules prescribed for transmission of any
programme. As family life of accused and his personal life was discussed and widely debated
in media. Further it is harming his right to privacy and also the reputation of his family was

52
(1997) 1 SCC 301.
53
1998, Supp (1) SCR 723.
54
Id.
55
fact sheet
56
Siddharth Narrain, sex, lies and video tape: The right to privacy in India,
http://infochangeIndia.org/humanrights/analysis/sex-lies-and-videotape-the-right-to-privacy-in-india.html,last
seen on 23/8/2014.
57
Fact sheet
58
Section 5. Programme code. – no person shall transmit or re transmit through a cable service any program
unless such programme is in conformity with the prescribed programme code
59
Rule 6. Programme code.-no programme should be carried in the cable service which-
(d) Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half- truth;
tarnished.60 In State v. Charulata Joshi,61 Supreme court held that “the constitutional right of
speech and expression conferred by article 19 (1) (a) of the constitution which includes the
freedom of press is not an absolute right. The press must obtain the willingness of the person
before publishing anything about him” here in the present case news channels published about
accused without any permission of him which is violation of the privacy.

The right to privacy of a prostitute is protected by the supreme court in the case of State of
Maharashtra v. Madhukar Narayan Mardikar.62 It was held that no one can invade the privacy
even of a woman with nature of easy virtue as and when he likes, she is entitled to her privacy.
Privacy of a women like prostitute is safeguarded by supreme court and this media violated
privacy of a common man. In the case at hand media highlighted and widely debated about
private life of accused on live tv channels which infringed his right to privacy and also the
reputation of his family was harmed.63

Defamation by act of news channels

Allegations must be proved to attract the first exception of section 499, I.P.C.64 assuming
arguendo that the information showed on the tv channels are true but the truth has to be for
‘public good’ not otherwise. And the information of the private life of accused are not at all for
the public good.65 If a privilege is given there should not be misuse of the purpose or the object
which gives rise to it.66 For acting in good faith a person should not go further and makes false
and uncalled for addition to statements which would be protected.67 In the case of R. Raja
Gopal v. State of Tamil Nadu,68 it was held out that article 21 of constitution of India guarantee
to the citizens the right to life and liberty which implicit the right to privacy. No one can publish
anything about anyone without his consent whether the statement is truthful or not, whether
laudatory or critical and if he does so he would be violating the right to privacy of person
concerned and would be liable. Article 21 of the constitution of India states that the right to life
includes right live life with human dignity or decency than the exposing and broadcasting
personal information of an individual without there consent amounts to clear cut defamation

60
Fact sheet
61
(1999) 4 SCC 65.
62
(1991) 1 SCC 57.
63
fact sheet
64
Damodra Shenoi v. Public Prosecutor, Ernakulam, (1989) 2 KLT 767.
65
Fact sheet
66
Sankara, (1883) 6 Mad 381, 395.
67
Ramanand, (1881) 3 All 664.
68
1994 SCC (6) 632.
and also the violation of article 21 of the constitution of India. 69 the unauthorised broadcast of
the private information and discussing about marital life of the accused is also violative of the
right to privacy of the individual protected under article 21 of the constitution of India. Thus
the act of broadcasting personal information without consent of the concerned is an act of
defamation in itself and prima facie violative of article 21 of the constitution of India.

Right to speech and expression does not mean that media can publish any kind of report
concerning a sub-judice matter or to do a sting on some matter concerning a pending trial in
any matter the pleases. The legal parameter within which a report or comment on a sub judice
matter can be made is well defined and any action in breach of the legal bounds would invite
consequences. Article 19 (1) (a)70 of the constitution of India gurantees, freedom of speech and
expression and article 19 (2)71 permits reasonable restrictions to be imposed. However article
19 (2)72 does not refer to ‘administration of justice’ but interference of justice is clearly referred
to in the definition of criminal contempt in section 273 of the contempt of courts act, 1971 and
in section 3 there of as amounting to contempt therefore, publications-coverage which interfere
or tend to interfere with the administration of justice amount to criminal contempt under the
contempt of court act and if in order to preclude such interference, the provisions of that act
impose a reasonable restriction on freedom of speech, such restriction would be valid.

Act of news channels has given rise to trial by media

In the world of 24 hours news channels and web caste on the internet the media has reached to
every nook and corner of the world. It is observed by supreme court that large number of people
believes that thigs which appear in the print or electronic media is correct. For these reasons
alone, the mass media has to circumspect while dealing with ‘news’74 news channels do not
realize that any item of news telecast reaches all persons irrespective of age, literacy, and
capacity to understand these telecasts make a phenomenal impact on the society unfortunately

69
Chandara Raja Kumari v. Police Commissioner Hyderabad, AIR 1998 AP 302.
70
Article 19. Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right (a)
to freedom of speech and expression.
71
Article 19. Protection of certain rights regarding freedom of speech etc (2) nothing in sub clause (a) of clause
(1) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the
sovereignty and integrity of India, security of the state, friendly relation with foreign states, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence.
72
Id.
73
Section 2 definition – in this act, unless the context otherwise requires – (a) “contempt of court” means civil
contempt or criminal contempt (c) “ criminal contempt “ means the publications. (Whether by words, spoken or
written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act
whatsoever which -
74
Rajendra Sail v. M.P. High Court Bar Assn., (2005) 6 SCC 109.
this uncontrolled or un edited telecast or propagation of news is resorted to the name of exercise
of right to freedom of speech and expression, or freedom of press.75 The power of the press is
almost like nuclear power ‘it can create and it can destroy’.76 Before publication of a potentially
damaging peace, the media need to exercise due care and caution.

In case of Kartongen Kemiochforvaltning AB v. State,77 the central bureau of investigation

(CBI) filed a charge sheet after 13 years of investigation, which included ‘investigative
journalism’ by the media. In a petition against the framing of charges it was considered by
learned council appearing for the CBI that there was no evidence showing the receipt of the
bribe money, but the CBI was on the trial for gathering some evidence. In this context, the
court observed:

“this case is a nefarious example which manifestly demonstrate how the trial and justice by
media can cause irreparable, irreversible and incalculable harm to the reputation of the person
and shunning of his family, relatives, and friends by the society. He is ostracized, humiliated
and convicted without trial. All this puts at grave risk due administration of justice it is common
knowledge that such trials and investigative journalism and publicity of pre- mature, half-
baked or even presumptive facts of investigation either by the media itself or at the instance of
investigating agency have almost become daily occurrence whether the electronic media, radio
or press.”78

Article 2179 of the constitution of India makes it obligatory upon the state not to deprive any
person of his life or personal liberty except according to the procedure established by law. All
the citizens must keep in view while exercising their right the obligations casted upon them.
Trial may be vitiated on this ground alone if that necessarily do not follows that they must have
a right to a fair trial in an atmosphere free from pre judice. The court have a great responsibility
and therefore must protect the rights and reputation of an individual from an un warranted ‘trial
by media’ this have a more importance in pending matter. For example if a person is arrested
on the suspicion of having committed a crime, media has no right to declare him (by
implication) innocent or guilty that is within the exclusive domain of the judiciary. There must
be a fair trial.

75
D.N. Prasad v. Principal Secretary, 2005 Cri LJ 1901.
76
Surya Prakash Khatri v. Smt. Madhu Trehan, 92 (2001) DLT 665 (FB).
77
2004 (72) DRJ 693.
78
Id.
79
Article 21. Protection of life and personal liberty : no person shall be deprived of his life of personal liberty
except according to procedure established by law.
In the case at hand the reputation of accused and his family is harmed due to trial done by
media as media themselves broadcasted personal life of accused without any prior permission
from the concerned. Media presented accused as a guilty and violated the law. Media cannot
declare anyone criminal before the proper trial but here media presented the accused as
criminal. This is a clear case of trial by media which is not permitted under a law.80

While trial by media ought to be depreciated, in the event any person feels victimised or
unfairly treated by the media - either through a ‘trial by media’ or otherwise – he is not without
remedy. Proceedings for defamation or injunction can always be initiated in an appropriate
case.81

In the light of abovementioned reasons, it is most humbly submitted that the act of broadcasting
the news related to private life of appellants resulted in violation of right to privacy and given
rise to media trial.

80
Fact sheet
81
Reynolds v. Times Newspapers Ltd., 1999 4 ALL ER 609
 PRAYER

Wherefore in the light of arguments advanced and authorities cited, the Appellant humbly
submits that the Hon’ble Court may be pleased to adjudge and:

TO HOLD

1. That the act of news channel has resulted in the violation of Right to Privacy
of the Appellants
2. That the act of News Channel has resulted in trial by Media and violated the
Right to Fair Trial.
TO SET ASIDE

The decision of High Court in holding that

1. There are prima-facie allegations against appellants and they are guilty
under section 354 and 498 A of I.P.C., 1860.
2. The Appellants is liable to pay compensation to the Respondent.
MISCELLANEOUS

Any other order as it deems fit in the interest of justice, equity and good
conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

SD/-

(Counsel for Appellants)