MOOT COURT PROBLEM (CRIMINAL)

‘Rabindra’ was arrested by the IIC, Rajendra Nagar P.S. on 24.12.2017 on allegation of
having caused the death of ‘Ramaswami’ due to property dispute since about 12 years back.

It is pertinent to note that the dead body of the victim was recovered just near a Pond
situated 2 KM away from the place of occurrence, on 23.12.2017. The incriminating material
i.e. ‘Bhujali’ was recovered inside the said Pond as per the statement of ‘Rabindra’ while in
the custody of the Police.

Charge-sheet was submitted on 26.03.2017. ‘Autopsy’ report revealed that the death of
‘Ramaswami’ might have been caused due to run over by a vehicle. The report further
revealed mark of violence on the body of the victim. However, the evidence of P.W.1 and
P.W.2 revealed that ‘Rabindra’, the accused was not present in the town on the date of
occurrence.

The learned Sessions Judge, convicted the accused, ‘Rabindra’ u/s 302 IPC and sentenced
him to 10 years imprisonment with fine of Rs. 20,000/-
The accused ‘Rabindra’ filed ‘Appeal’ in the High Court of Orissa.

The Appeal is ready for hearing.

Argue the matter either on behalf of the Appellant or the State.
 BEFORE THE HON'BLE HIGH COURT OF ORISSA, AT - CUTTACK
CRIMINAL APPEAL CASE NO. 623/2019.

(Arising out of C.T. Case No. 282/2017 being Trial No. 485/2017 disposed by Learned District
& Sessions Judge, Sambalpur)

In the matter of: An appeal U/s 374 (2) read with Sec. 382 of the CrPC against the
conviction U/s 302 of IPC

In the matter of: Rabindra, aged about 42 Years, S/o - Late Ragunandan of Plot No.
IV- A 5/1, Unit-2 P.S. Rajendra Nagar, Dist – Dambalpur

Appellant

(Accused in Lower Court)

Versus

State of Orissa

Respondent
(Informant in Lower Court)

The Appellant above named

Begs to sheweth

That the Appellant herein assails the Judgement of conviction directing the
accused/appellant to undergo for 10 years and pay fine of Rs. 20,000/- from the date of
Judgement which has been pronounced on 24.12.2018 by Hon’ble District & Sessions Judge,
Sambalpur, in C.T Case No. 282/2017.

Written Note of Argument on Behalf of Accused Persons

 TABLE OF CONTENTS

SL. NO. DESCRIPTION PAGE

1 Abbreviation 2

2 Index of Authorities 3

3 Statement of Jurisdiction 4
4 Statement of Facts 5

5 Statement of Issues 6

6 Body of Arguments 7

7 Prayer 17
 ABBREVIATION

1) AIR – All India Reporter

2) Del. – Delhi
3) Ker. Kerala
4) Mad. Madras
5) SC – Supreme Court
6) Hon’ble – Honourable
7) U/s – Under Section
8) Vrs. – Versus
9) P.S. – Police Station

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 INDEX OF AUTHORITIES

Statutes Referred
1. Criminal Procedure Code 1973.
2. Indian Penal Code 1860
3. Indian Evidence Act 1872
Cases Referred

 Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283

 Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165, and Jumni v. State of
Haryana, (2014) 11 SCC 355 : 2014 Cri LJ 1936
 Mohinder Singh v. State, AIR 1953 SC 415 : 1953 Cri LJ 1761
 Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166
 Jumni v. State of Haryana
 Sri. Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233
Work Publicists

 Indian Penal Code by SN Mishra

 Criminal Procedure Code by Ratanlal & Dhirajlal
 Law of Evidence by Ratanlal & Dhirajlal
 The Code of Criminal Procedure, - Bare Act by Professional's
Internet Sources

 www.indiakanoon.org
 Wikipedia, the free Online Encyclopedia

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 STATEMENTS OF JURISDICTION

The appellant has approached the Hon’ble High Court of Orissa, Under Section 374 (2) read
with Sec. 382 of the CrPC against the conviction U/s 302 of IPC.

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 STATEMENTS OF FACTS

1) ‘Rabindra’ was arrested by the IIC, Rajendra Nagar P.S. on 24.12.2017 on allegation
of having caused the death of ‘Ramaswami’ due to property dispute since about 12
years back.
2) The dead body of the victim was recovered just near a Pond situated 2 KM away
from the place of occurrence, on 23.12.2017.
3) The incriminating material i.e. ‘Bhujali’ was recovered inside the said Pond as per the
statement of ‘Rabindra’ while in the custody of the Police.
4) Charge-sheet was submitted on 26.03.2017. ‘Autopsy’ report revealed that the
death of ‘Ramaswami’ might have been caused due to run over by a vehicle. The
report further revealed mark of violence on the body of the victim.
5) The learned Sessions Judge, convicted the accused, ‘Rabindra’ u/s 302 IPC and
sentenced him to 10 years imprisonment with fine of Rs. 20,000/-
6) The accused ‘Rabindra’ filed ‘Appeal’ in the High Court of Orissa.

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 STATEMENTS OF ISSUES

Issue 1 – Whether divorce filed by the Petitioner is maintainable or not?

Issue 1 - Whether the Appeal is maintainable before the Hon'ble High Court of Orissa?

Issue 2 - Whether the property dispute is the cause of death of the deceased?

Issue 3 - Whether the statement of the Accused before the police at the time of Police
Custody shall be considered as evidence?

Issue 4 - Whether the Autopsy report can be considered as documentary evidence without
any export's opinion?

Issue 5 Whether the plea of alibi of the Accused is considered as per the evidence of PW -1
& PW -2?

Issue 6 - Whether the Accused committed offence under Section 302 of IPC?

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 BODY OF ARGUMENTS

Issue 1 – Whether the Appeal is maintainable before the Hon'ble High Court of Orissa?

Yes, this case is maintainable as this Hon'ble Court has jurisdiction to try the instant
case under Section 374(2) of Code of Criminal Procedure Code, 1973. Section 374(2) of Code
of Criminal Procedure Code, 1973 described as follows;

"(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other Court in which a sentence of imprisonment for more than
seven years has been passed against him or against any other person convicted at the same
trial, may appeal to the High Court."

As this case is charge framed under Section 302 of IPC, then this case is trial by the Court of
Sessions and the Accused/Appellant has convicted for 10 years by the Court of Sessions,
which is more than 7 years.

Issue 2 – Whether the property dispute is the cause of death of the deceased?

No, the property dispute is not the cause of death of the deceased.

The dispute related to property between the Appellant and the Deceased since about 12
years back, relating to this fact and issues the prosecution has failed to adduce any evidence
to proof the fact.

Issue 3 – Whether the statement of the Accused before the police at the time of Police
Custody shall be considered as evidence?

No, the statement of the Accused before the police at the time of Police Custody
shall not be considered as evidence in this case.

The confessional statements were admittedly recorded after the arrest of the accused and
when the accused was in police custody. Therefore, such statements were inadmissible
having regard to the provisions of Sections 25 and 26 of the Indian Evidence Act, 1872.

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Section 25 of the Evidence Act mandates so, in certain and unequivocal terms, as is clear'
from the language thereof. It reads as follows:

"25. Confession to police officer not to be proved. - No confession made to a police officer
shall be proved as against a person accused of any offence." Likewise, Section 26 makes any
such statement inadmissible if given when in police custody. It reads:

"26. Confession by accused while in custody of police not to be proved against him. – No
confession made by any person whilst he is in the custody of a police-officer, unless it be
made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation - In this section "Magistrate" does not include the head of a village discharging
magisterial functions (in the Presidency of Fort St. George or elsewhere), unless such
headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal
Procedure" The philosophy behind the aforesaid provision is acceptance of a harsh reality
that confessions are extorted by the police officers by practicing oppression and torture or
even inducement and, therefore, they are unworthy of any credence. The provision
absolutely excludes from evidence against the accused a confession made by him to a police
officer. This provision applies even to those confessions which are made to a police officer
who may not otherwise be acting as such. If he is a police officer and confession was made
in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is
the substantive rule of law enshrined under this provision and this strict rule has been
reiterated countlessly by the Courts.

The word 'confession' has no where been defined. However, the courts have resorted to the
dictionary meaning and explained that incriminating statements by the accused to the
police suggesting the inference of the commission of the crime would amount to confession
and therefore, inadmissible under this provision. It is also defined to mean a direct
acknowledgment of guilt and not the admission of any incriminating fact, however grave or
conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when
they are made by any person, whilst he is in the custody of a police officer, unless such a
confession is made in the immediate presence of a Magistrate.

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Therefore, when a person is in police custody, the confession made by him even to a third
person, that is other than a police officer, shall also become inadmissible.

In the present case, as pointed out above, not only the confessions were made to a police
officer, such confessional statements were made by the appellant after his arrest while he
was in police custody. The confessional statement made by the appellant was before the
police officer in charge of the Rajrendra Nagar Police Station where the offence was
registered in respect of the murder of Ramaswami. On 24.12.2017, it was after the appellant
was arrested and brought before the IIC that he recorded the confessional statement of the
appellant. The trial court also did not consider whether such a confessional statement is
admissible in evidence or not. The confessional statement was clearly inadmissible as it was
made by an accused before a police officer after the investigation had started."
Notwithstanding the same, the trial court had relied upon these confessions on the basis of
these statements, coupled with 'other connected evidence available on the record',
particularly the recovery of the Bhujali from the pond, where the dead body of Deceased
was found.

The question is as to whether these could be taken into consideration to believe the
confessional statements by the appellants, which were otherwise inadmissible' in law.

The only portion of the information contained in the confessional statements that may be
proved is provided under Section 27 of the Evidence Act, which reads as under:

"27. How much of information received from accused may be proved. - Provided that, when
any fact is deposed to as discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved." It is clear that Section 27 is in the form of proviso to Sections
25 and 26 of the Evidence Act. It makes it clear that so much of such information which is
received from a person accused of any offence, in the custody of a police officer, which has
led to discovery of any fact, may be used against the accused. Such information as given
must relate distinctly to the fact discovered.

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In the present case, the information provided by the accused/ appellants in the form of
confessional statements, has not led to any discovery. More starkly put, the recovery of
Bhujali is not related to the confessional statements allegedly made by the Appellant.
Therefore, the situation contemplated under Section 27 of the Evidence Act also does not
get attracted. Even if the Bhujali was recovered pursuant to the disclosure statement, it
would have made the fact of recovery of Bhujali only, as admissible under Section 27 of the
Evidence Act, and it would not make the so-called confessional statements of the appellants
admissible which cannot be held as proved against him.

Issue 4 – Whether the Autopsy report can be considered as documentary evidence

without any export's opinion?

Yes, the Autopsy report can be considered as documentary evidence without any
export's opinion.

The prosecution did not succeed in establishing the cause of death, since the prosecution
did' not examine the doctor, who conducted the post-mortem on the body of Ramaswamy,
but marked the post-mortem certificate only through the investigating officer and
therefore, the report cannot be looked into as the contents are not proved and the said
document was also marked only through the investigating officer. Section 294 of the Code
of Criminal Procedure contemplates that where any document is filed before any court by
the prosecution or the accused, the particulars of every such document shall be included in
a list and the prosecution or the accused, as the case may be, or the pleader for the
prosecution or the accused, if any shall be called upon to admit or deny the genuineness of
each such document. Sub Section (2) of Section 294 Cr.P.C states that the list of documents
shall1 be in such form as may be prescribed by the State government and Sub Section (3) of
Section 294 Cr.P.C contemplates that where the genuineness of any document is not
disputed, such document may be read in evidence in any inquiry, trial or other proceeding
under this code without proof of the signature of the person to whom it purports to be
signed.

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The proviso to the said Section states that the court may, in its discretion, requires such
signature to be proved. Section 294 Cr.P.C also will not help the prosecution in this case for
it to contend that no formal proof is required.

When the above document was marked without examining the author of the document, it
must be said that the documents were marked. Secondly, even if a document has been
marked under Section 294 Cr.P.C it must be in accordance with the procedure contemplated
under the said section. This is an admitted case where the prosecution has marked those
documents in the said form. In this case the Appellant is entitled for acquittal since the
prosecution has miserably failed to prove the cause of death.

The post mortem certificate, was produced before the Court by the Investigating Officer and
the Doctor, who conducted autopsy had not been examined and the prosecution has not
given any reason for non-examination of the Doctor. According to him, the non-examination
of the Doctor is fatal for the prosecution and the contents of the documents and
inadmissible as they were not spoken to by the person who prepared it. The doctor, who
issued the certificate, though according to the prosecution conducted autopsy, was not
examined and no explanation as offered by the prosecution before the court, as to why he
was not examined. The Trial court cannot presume the cause of death as the said document
was not proved in terms of the provisions of Evidence Act. As the cause of death is not
proved and "Autopsy" report revealed that the death of Ramswami might have been caused
due to run over by a vehicle. The report further revealed mark of violence on the body of
the victim.

Issue 5 – Whether the plea of alibi of the Accused is considered as per the evidence of PW-
1 & PW -2?

Yes, the plea of alibi of the Accused is considered as per the evidence of PW -1 & PW
-2. Plea of alibi is a rule of evidence recognized under Section 11 of the Indian Evidence Act,
1872.

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"When facts not otherwise relevant become relevant: facts otherwise not relevant are
relevant if they are inconsistent with any fact in issue or relevant fact;

If by themselves or in connection with other facts they make the existence or non-existence
of any fact in issue all relevant fact highly probable or improbable."

Further, Section 103 of the Evidence Act provides for Burden of proof as to particular fact
which states that the burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is provided by any law that the proof of
that fact shall lie on any particular person.

In the case of Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283, the Supreme Court
observed that:

"The Latin word alibi means 'elsewhere' and that word is used for convenience when an
accused takes recourse to a defence line that when the occurrence took place he was so far
away from the place of occurrence that it is extremely improbable that he would have
participated in the crime. It is a basic law that in a criminal case, in which the accused is
alleged to have inflicted physical injury to another person, the burden is on the prosecution
to prove that the accused was present at the scene and has participated in the crime. The
burden would not be lessened by the mere fact that the accused has adopted the defence
of alibi. The plea of the accused in such cases need be considered only when the burden has
been discharged by the prosecution satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to
prove it with absolute certainty so as to exclude e the possibility of his presence at the place
of occurrence.

When the presence of the accused at the scene of occurrence has been established
satisfactorily by the prosecution through reliable evidence, normally the court would be
slow to believe any counter-evidence to the effect that he was elsewhere when the
occurrence happened.

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But if the evidence adduced by the accused is of such a quality and of such a standard that
the court may entertain some reasonable doubt regarding his presence at the scene when
the occurrence took place, the accused would, no doubt, be entitled to the benefit of that
reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in
such circumstances, the burden on the accused is rather heavy. It follows, therefore, that
strict proof is required for establishing the plea of alibi."

This view has been reaffirmed in the cases of Jayantibhai Bhenkarbhai v. State of Gujarat,
(2002) 8 SCC 165, and Jumni v. State of Haryana, (2014) 11 SCC 355 : 2014 Cri LJ 1936.
Likewise, in the case of Mohinder Singh v. State, AIR 1953 SC 415 : 1953 Cri LJ 1761, the
Supreme Court held that the standard of proof required in regard to a plea of alibi must be
the same as the standard applied to the prosecution evidence and in both cases it should be
a reasonable standard.

In the case of Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166, the Supreme Court
stressed that defence witnesses are entitled to equal treatment with those of the
prosecution, and that the courts ought to overcome their traditional, instinctive disbelief in
defence witnesses; quite often, they tell lies but so do the prosecution witnesses.

In the case of Jumni v. State of Haryana, the Supreme Court held that it is not as if the
accused person is required to prove his innocence, in fact, it is for the prosecution to prove
his guilt. It was further held in this case that:

"It is no doubt true that when an alibi is set up, the burden is on the accused to lend
credence to the defence put up by him or her. However, the approach of the court should
not be such as to pick holes in the case of the accused person. The defence evidence has to
be tested like any other testimony, always keeping in mind that a person is presumed
innocent until he or she is found guilty."

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In this case the evidence of PW1 and PW2 revealed that Rabindra the Accused was not
present in the town on the date of occurrence, here as per the evidence of PW1 and PW2,
the prosecution has failed to establish that the Accused was present at the of the incidence.

The courts through various judgments has held that declaration of a witness to be hostile
does not ipso facto reject the evidence. The precedence of cases reflects it to be a well
settled that the portion of evidence, which besides being advantageous to both the parties
and helps the courts in arriving at a judgment, may be upheld and made admissible. It
though has to be subject to all scrutiny and have to be extremely cautious in such
acceptance. The decision made by the apex court that "it is equally settled law that the
evidence of a hostile witness would not be totally rejected if spoken in favor of the
prosecution or the accused but it can be subjected to closer scrutiny and that portion of the
evidence which is consistent with the case of the prosecution or defense may be accepted."

In Sri. Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233, the Supreme Court explained
in what circumstances Section 154 EA could be invoked by the prosecution:-

"10.... Thus it is clear that before a witness can be declared hostile and the party examining
the witness is allowed to cross-examine him, there must be some material to show that the'
witness is not speaking the truth or has exhibited an element of hostility to the party for
whom he is deposing. Merely because a witness in an unguarded moment speaks the truth
which may not suit the prosecution or which may be favourable to the accused, the
discretion to allow the party concerned to cross-examine its own witnesses cannot be
allowed. In other words a witness should be regarded as adverse and liable to be cross-
examined by the party calling him only when the Court is satisfied that the witness bears
hostile animus against the party for whom he is deposing or that he does not appear to be
willing to tell the truth.

Issue 6 - Whether the Accused committed offence under Section 302 of IPC?

No, the Accused has not committed offence under section 302 of IPC.

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In the present case, accused has been convicted for commission of offence punishable
under Section 302 IPC. The said Section is reproduced as under:

302. Punishment for Murder- Whoever commits murder shall be punished with death or
imprisonment for life and shall also be liable to fine.

The relevant portion of Section 300 IPC which defines 'Murder' reads as follows:-300.
Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused done with the intention of causing death, or -Secondly- If it is
done with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused , or -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, or Fourthly- If the person
committing the act knows that it is so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or such injury is aforesaid.

Further, the relevant portion of Section 299 IPC which defines "Culpable homicide", having
reference in the definition of 'Murder' reads as follows:

299. Culpable homicide- Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause death,
commits the offence of culpable homicide.

Appreciation of Evidence

In order to connect the accused with the offence of murder and prove the ingredients of the
aforementioned Case U/s 302 IPC, the prosecution has relied upon and tried to prove the
following facts/circumstances in prosecution evidence:-

Fact 1: Due to property dispute since about 12years back between the Appellant and the
Deceased, the Appellant has murdered the deceased.

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Motive (Fact 1):- As per the story of the prosecution the accused and the deceased had
dispute related to property between the Accused and the Deceased the reason behind the
incident or the motive behind the murder.

In order to prove the said motive, the investigating agency cited two witnesses and who
have been examined as PW-1 and PW-2, who have given evidence that Rabindra the
Accused was not present in the town on the date of occurrence.

The Investigating Agency further submitted that in their charge sheet, "Autopsy" report
revealed that the death of Ramswami might have been caused due to run over by a vehicle.
The report further revealed mark of violence on the body of the victim. It is alleged by the
Investigating Agency that the incriminating material i.e. "Bhujali" was recovered inside the
said "pond" as per the statement of "Rabindra" while in the custody of the Police.

From the above discussion, there is no material is available to convict the Appellant u/s 302
of IPC and the Appellant is not connected in any way with fact and circumstances. Therefore
the Appellant may be acquitted by this Hon'ble Court.

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 PRAYER FOR RELIEF

In view of the above facts and circumstances your Honour may be graciously pleased
to admit the appeal, call for the records from the lower court and after hearing set aside the
conviction and dismiss the C.T case and acquit the accused/appellant;

And any other order/orders in favour of the appellant may please be passed in the interest
of justice;

And for the said act of kindness the appellant shall remain ever pray as duty bound.

Place: Cuttack By the Appellant through

Date: Advocate

Certificate

Certified that the grounds taken in this Appeal are good grounds to succeed and I
undertake to substantiate those grounds at the time of hearing.

Advocate

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