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PUSSGRC Inter-College Moot Court Competition - 2017

TEAM CODE: SG - 95

BEFORE THE HON’BLE


SUPREME COURT OF SPARTA

CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRIMINAL) NO. ___ OF 2017


IN
CRIMINAL APPEAL NO. ___ OF 2017

STATE OF DASTAR. ………….………..……..…………………………….………..PETITIONER

v.

JORA .……………………………………………….…………….…………………. RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE SUPREME COURT OF


SPARTA

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TABLE OF CONTENTS

Table of Contents....................................................................................................................... ii
List of Abbreviations................................................................................................................. iv
Index of Authorities.................................................................................................................... v
Statement of Jurisdiction.......................................................................................................... viii
Statement of Facts .......................................................................................................................ix
Arguments presented................................................................................................................. xi
Summary of Arguments ............................................................................................................ xii
Arguments Advanced................................................................................................................... 1
I. Whether The Review Petition Is Maintainable....................................................................1
I.1. Requirements for maintainability of criminal review petition...............................................1
I.2. Error apparent on the face of record ......................................................................................2
II. Whether Mens Rea To Cause Injury No. 2 Was Present...................................................3
II.1. Circumstances of the case indicates clearly towards the guilt of the accused…..................3
II.2. Gravity of injury no. 1 and its consequences…....................................................................6
II.3. Actus Reus and Mens Rea of injury no. 2….........................................................................6
III. Whether The Accused Is Liable Under Section 302 DPC................................................7

III.1. Liability for Injury no. 1......................................................................................................7


III.2.Liability for Injury no. 2.....................................................................................................10
III.3. Combination of injuries that lead to the death of the victim…..........................................11
IV. Whether Conviction Is Possible On The Basis Of Circumstantial Evidence…............11

IV.1. Liability on the basis of Circumstantial Evidence.............................................................12

IV.2. The series of events that conclude the guilt of the accused…...........................................13

V. Whether The Following Relevant Principles Were Neglected By The Court. ..............14

V.1. Rule against hearsay evidence ….......................................................................................14


V.2. Victim escape cases and rules of causation........................................................................16

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V.3. One Sequential Event..........................................................................................................22

VI . Whether The Court’s Decision Acquitting The Accused From The Charge Of Section
302 Of Dastar Penal Code Is Justifiable.................................................................................23
VI.1. Fact, regarding the Mens rea to cause the injury no.2 was present, was neglected by the
Supreme Court of Sparta. ...........................................................................................................23
VI.2. Injury no.1 and injury no.2 were the cause of the death of the victim, and both of them
were intentionally inflicted by the accused on the victim. .........................................................23
VI.3. The present case does not fall under section 325 DPC…..................................................23
Prayer ........................................................................................................................................24

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LIST OF ABBREVIATIONS

AIR All India Reporter


A.P. Andhra Pradesh
Anr. Another
Art. Article
Bom. Bombay
Cri. L.J. Criminal Law Journal
Cri. Ap. No. Criminal Appeal Number
DPC. Dastar Penal Code
Dr. Doctor
Edn. Edition
FIR First Information Report
Mad. Madras
No. Number
Ors. Others
p. Page
PAT Patna
SC Supreme Court
SCC Supreme Court Cases
SEA Spartan Evidence Act
Sec. Section
Supp. Supplementary
v. Versus

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INDEX OF AUTHORITIES

CASES

1. Ashish Batham v. State of Madhya Pradesh AIR 2002 SC 3206


2. Bakhora Chowdhary v. State of Bihar, 1991 Cr LJ 91 (Pat.)
3. B.F. Pushpaleela Devi v. State Of A.P., 2002; (5) ALD 1, 2002 (5) ALT 103
4. Bhagat Ram v. State, 1854 SC 621
5. Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] 3 SCC 217.
6. Bhugdomal v State of Gujrat, (1984)1 SCC 319: AIR 1983 SC 906: 1983 Cr LJ 1276
7. Bodhraj alias Bodha v. State of J & K, (2002) 8 SCC 45 : (2002) Cri LJ 4664 : AIR 2002
SC 3164
8. Causation: Forseeability v Natural Consequences’ (1992) 55 MLR 584, 586.
9. Channu v. E., 1948 Cal 125.
10. Devender Pal Singh v. State NCT of Delhi, AIR 2003 SC 886
11. H. Kondal Reddy Vs. Central Bank Of India, Hyderabad.
12. Hanumant Govind Nargundkar case, AIR 1952 SC 343 : (1953 Cri LJ 129);
13. Hazara Singh v. Attar Singh, AIR 1976 PUNJ 24
14. Jadoo Singh v. Malti Devi, AIR 1983 All 87
15. Lily Thomas v. Union of India, AIR2000 SC 1650
16. Majendran Langeswaran vs State (N Of Delhi) & Anr; Criminal Appeal No. 1300 OF
2009
17. Mana, (1930) 32 BOM LR 1143
18. Niru Bhagat v. E., 24 Cr LJ 91
19. Q.E. v. Hos Nath, 1941 ALJ 416 : 1952 SC 343, Mangalashwari, 1954 SC 715;
20. R v David Keith Pagett [1983] 76 CAR 279, 288
21. R v Kirikiri [1982] 2 NZLR 648;
22. R v Smith [1959] 2 QB 35;
23. Rafiq v State of Uttar Pradesh [1980] 4 SCC 262.
24. Rama Nand v. State of Himachal Pradesh, AIR 1981 SC 738 (743)

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25. Ratanlal v. Rex, 1949 A 222;


26. Royall v R [1991] HCA 27 [21].
27. S. Nagaraj v. State of Karnataka, (1993) Supp. 4 SCC 595
28. Sattemma Vs. Vishnu Murthy, , M. Srinivas Vs. Jawaharlal Nehru Technological
Unviersity, Hyderabad
29. Shripad Shivram, Kulkarni v. state of Maharashtra,, AIR 1981 SC 34 (38)
30. State Collector Of Central Excise v. Papas Kumar Shome, 1985, Cr LJ 871 (Ori)
31. State of Uttar Pradesh v Chhoteylal [2011] (1) SCALE 454.
32. State of Uttar Pradesh v. Satish , 2005 (2) Scale 33
33. State of West Bengal & Ors vs Kamal Sengupta & Anr, CIVIL APPEAL NO. 1694 OF
2006;
34. State v. Shankar Prasad 1052 A 1776 :1952 Cr LJ 1334 ;
35. Stephenson v State 205 Ind. 141
36. The High Court of judicature at Patna and anr. V. Rakesh Kumar, Civil Review no.153 of
2015

STATUTES

1) Indian Penal Code, 1860


2) The Indian Evidence Act, 1872
3) Criminal Procedure Code, 1973
RULES
1) Supreme Court Rules, 2013

MISCELLANEOUS
1) Constitution of India

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PUBLICATIONS AND REPORTS

1) HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University
Press 2002) 329.
2) Rebecca Williams, ‘Policy and Principle in Drugs Manslaughter Cases’ (2005) 64 CLJ
66, 70.
3) Lawrence Crocker, ‘A Retributive Theory of Criminal Causation’ (1994) 5 JCLI 65, 85–
89;
4) Timothy H Jones, ‘Causation, Homicide and the Supply of Drugs’ (2006) 26 LS 139,
142.p
5) Alan Norrie, ‘A Critique of Criminal Causation’ (1991) 54 MLR 685, 694.
6) Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape
Sentencing in India (Cambridge University Press 2017) 40–45.
7) The Justice Verma Committee on Amendments to Criminal Laws 2013.
8) Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and
Singapore (2nd edn, Lexis Nexis 2012) 109–110, 128–29
9) Stanley Yeo, ‘Causation in Civil and Criminal Negligence’ (2007) 25 SLR 108, 120–22.
10) Eric Colvin, ‘Causation in Criminal Law’ (1989) 1 BLR 253, 254;
11) John E Stannard, ‘Criminal Causation and the Careless Doctor’ (1992) 55 MLR 577, 579

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STATEMENT OF JURISDICTION

The petitioner humbly submits this memorandum for the review petition filed before the
Honorable Supreme Court under Article 137 of the Constitution of Sparta to be read with Order
XL Rule 1 of the Supreme Court Rules, 1966 made under Article 145 of the Constitution of
Sparta.

Article 137 states that:

Review of judgments or orders by the Supreme Court Subject to the provisions of any law made
by Parliament or any rules made under Article 145, the Supreme Court shall have power to
review any judgment pronounced or order made by it

Article 145 provides with Rules of Court,

A. 145 (1) Subject to the provisions of any law made by Parliament the Supreme Court may
from time to time, with the approval of the President, make rules for regulating generally
the practice and procedure of the Court.

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STATEMENT OF FACTS

1. The victim, a 21-year-old lady, a resident of Phoolpur District, was travelling from Shergarh to
Sherpur district and was found in an unconscious state in the woods near the Sherpur Railway
Station around 8:30 pm. She was taken to Government Medical College Hospital, Sherpur where
she succumbed to injuries around 1 pm on 03-06-2017.
2. On July 8, the police took into custody the accused named Jora who is a habitual offender and has
been previously convicted by courts. He tried to rob the victim in the women’s compartment,
smashed her head against the wall when she resisted, pushed her hands into the gap of a closing
door and threw her out of the train. He jumped out of the speeding train, walked 150 meters to find
her lying in a pool of blood. He carried her to woods near the rail track and raped her.
3. DNA samples collected from the site of the crime and victim’s body were compared with suspect’s
samples. A button of his shirt was found in the women’s compartment, traces of his skin cells and
blood were also found therein. Fingernail marks were also found on his body. Cries of a woman
were also heard.
4. During the medical examinations, the accused confessed to Dr.Karthik of Government Medical
College Hospital, Sherpur that he had committed rape with the victim. Also the victim’s cell phone
was recovered from person named Babu which he said he had bought from Jora/accused.
5. Few days before the incident, the accused tried to tease one of the friends of the victim in her
presence, at Sherpur Bus stop to which she objected. As a result of this, the accused threatened both
of them of dire consequences if they complained to the police. The girls filed a complaint against
the accused which the police registered as FIR.
6. Forensic surgeon Dr. Priya who conducted the post-mortem stated before the Court that about 20
injuries in the body and the death is mainly the joint result of injuries no.1 & 2. She opined clearly
that the first injury, “Lacerated wound with a surrounding abraded contusion on left side of
forehead above eye brow; abraded contusion on right side of fore head just above eye brow and
contusion of left temporalis muscle, involving its whole thickness; the left orbital margin showed a
fissured fracture; the floor of left side of anterior cranial fossa also showed fracture; traumatic
disruption of stem of pituitary gland and left frontal lobe of brain showed multiple areas of
hemorrhage” is out of the hitting of her head at the wall of compartment of train. The second injury,
because of aspiration

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of considerable amount of blood resulted in anoxic brain damage arising out of falling out of the
train.
7. On conclusion of the final hearing in trial court, the prosecution stated that this case should be
considered as a rarest of rare in the light of scientific and circumstantial evidences. Absence of
eyewitnesses should not be a lacuna in awarding maximum punishment as the man had no qualm of
conscience in committing rape and murder together.
8. The trial court found the accused guilty for Section 376 and Section 302 of Dastar Penal Code and
awarded him death sentence for murder and life imprisonment for the offence of rape. On appeal by
the accused, the High Court confirmed the judgment of trial court. Aggrieved by the judgment of
High Court, the accused filed criminal appeal before the Supreme Court and the Supreme Court
partly allowed the appeal and exonerated the accused from the charge of murder with the
observation that the prosecution failed to prove that the lady was thrown out of the train by the
accused and also failed to prove that the accused has Mens Rea to cause the injury which
subsequently resulted in death of the victim. Supreme Court modified the judgment by convicting
him under Section 325 instead of Section 302 and upheld the punishment under Section 376, of
Dastar Penal Code.

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ARGUMENTS PRESENTED

Issue 1:
Whether the review petition is maintainable.

Issue 2:
Whether Mens Rea to cause injury no. 2 was present.

Issue 3:
Whether the accused is liable under section 302 DPC.

Issue 4:
Whether conviction is possible on the basis of circumstantial evidence.

Issue 5:
Whether the following relevant principles were neglected by the court.

Issue 6:

Whether the court’s decision acquitting the accused from the charge of section 302 of Dastar penal
code is justifiable.

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SUMMARY OF ARGUMENTS

Issue 1: Whether the review petition is maintainable.


It is humbly submitted before the honorable Supreme Court of Sparta that; this review petition is
maintainable because the review petition can be only filed when there is error apparent on the fact of
record. Also, the fact that the accused is liable for injury no. 2 (because both the Mens Rea as well as
the Actus Reus were present) was neglected when the accused was acquitted of the charge of
murder.

Issue 2: Whether Mens Rea to cause injury no. 2 was present.


It is humbly submitted before the honorable Supreme Court of Sparta that Mens Rea to cause injury
no. 2 was present. It can be proved by taking into consideration that an FIR was launched by the
victim and her friend, and they were threatened of the dire consequences for the same by the
accused. The circumstances of the case indicate clearly towards the guilt of the accused.

Issue 3: Whether the accused is liable under section 302 DPC.


It is humbly submitted before the honorable Supreme Court of Sparta that the accused is liable under
section 302 DPC as all the ingredients required are being fulfilled. Injury no.1 was sufficient to
cause multiple brain hemorrhage as well as making the victim unconscious. Injury no. 2 caused
anoxic brain damage. Injury no. 1 and 2 both were inflicted with the intention to murder her.

Issue 4: Whether conviction is possible on the basis of circumstantial evidence.

It is humbly submitted before the honorable Supreme Court of Sparta that conviction is possible on
the basis of circumstantial evidence. As the arguments and authorities cited further establish,
conviction is possible on the basis of circumstantial evidence when those circumstances satisfy the
tests established by the Supreme Court for the same.

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Issue 5: Whether the following principles were neglected by the court of law.

It is humbly submitted before the honorable Supreme Court of Sparta that some of the principles of
legal jurisprudence were neglected by the court of law which is one of the reasons why this review
petition is maintainable here, those principles are: rule against hearsay evidence, rule of causation,
one sequential event, gravity of the offence.

Issue 6: Whether the court’s decision acquitting the accused from the charge of Section 302 of
Dastar Penal Code is justifiable.
It is humbly submitted before the honorable Supreme Court of Sparta that the court’s decision
acquitting the accused from the charge of Section 302 of Dastar Penal Code is not justified because
the fact, regarding the Mens Rea to cause the injury no.2 was present, was neglected by the Hon’ble
Supreme Court of Sparta. Injury no.1 and injury no.2 were the cause of the death of the victim, and
both of them were intentionally inflicted by the accused on the victim.

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ARGUMENTS ADVANCED

I : Whether the review petition is maintainable.


It is humbly submitted before the honorable Supreme Court of Sparta that; this review petition is
maintainable.
I.1. Requirements for maintainability of criminal review petition
The review petition can be filed when there is error apparent on the face of record under article
137 of the constitution and in accordance with, and subject to, the rules of the court made under
article 145.
Article 137 states that “subject to the provisions to any law made by Parliament or any rules
made under Article 145, the Supreme Court shall have power to review any judgment pronounced
or order made by it.” The power of review can be exercised for correction of a mistake.1 The
review petition is maintainable if it is shown that there has been miscarriage of justice.2 It is not
uncommon for the court to be invited to decide if its order, decision or judgment suffers from any
such error, which calls for review of the order, decision or judgment, as the case may be. If,
therefore, any review petition is made, the court shall consider the review petition gracefully and
with an open mind so that no miscarriage of justice is caused. 3 Adherence to any faulty decision
would result in miscarriage of justice and in such cases, nothing can prevent a court from
rectifying its error, because the doctrine of actus curiae neminem gravabit 4 can be invoked, in
such a case for correcting the error committed by the court. Review literally and even judiciously
means re-examination and re-consideration.5 Basic philosophy inherent in it is the universal
acceptance of human fallibility. Exceptions, both statutorily and judicially, have been carried to
correct accidental mistakes or miscarriage of justice. Mistake or error apparent on the face of the
record6 was explained as; a review may be granted, whether on any ground urged at the original

1 Lily Thomas v. Union of India, AIR2000 SC 1650


2 Devender Pal Singh v. State NCT of Delhi, AIR 2003 SC 886
3 The High Court of judicature at Patna and anr. V. Rakesh Kumar, Civil Review no.153 of 2015
4 An act of court shall prejudice none
5 State of West Bengal & Ors vs Kamal Sengupta & Anr, CIVIL APPEAL NO. 1694 OF 2006; S. Nagaraj v. State

of Karnataka, (1993) Supp. 4 SCC 595


6 B.F. Pushpaleela Devi vs State Of A.P., Rep. By Its ... on 7 August, 2002; 2002 (5) ALD 1, 2002 (5) ALT 103

(Bench: A Lakshmanan, R M Bapat, B S Reddy, G Mohammed, G Rohini)

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hearing of the suit or not, whenever the Court considers that it is necessary to correct an evident
error or omission and it is immaterial how the error or omission occurred. Also the mere
admission of an application for review and the issue of a rule therein does not in itself, disturb the
finality of the judgment or the proceeding. It only means that the Court is tentatively satisfied
about the merits of the application, but after hearing the parties, the Court can reaffirm its earlier
judgment and reject the application. It is only when the application is allowed that the proceeding
is reopened and the earlier judgment is put in jeopardy.7 The court has ruled that it is precluded
from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake
of justice.8 The court has emphasized that the basic fundamental of the administration of justice is
that no man should suffer because of the mistake of court. Ex debito justitiae, the court must do
justice to him. If a man has been wronged so long as it lies within the human machinery of
administration of justice, the wrong must be remedied.
I.2. Error apparent on the face of record
The counsel most respectfully showeth; review petitioners seek modification mainly of the
charges imposed on the accused. The main contention of the prosecution counsel, appearing on
behalf of the state of Dastar, is that the accused is liable for the charge of murder and acquitting
him of the same is a decision uncalled for and it leads to grave miscarriage of justice.
The prosecution council therefore invokes the broad parameters and powers of the Supreme Court
to review this petition because in this review petition the court is requested to reconsider its
judgment of acquitting the accused of the charge of murder by stating that the prosecution was
unable to prove it. There was error on the face of record because the Supreme Court was unable to
take into consideration the following fundamental flaws9 :

 Rule against hearsay evidence;


 The liability of the accused regarding the whole as one sequential crime and not as separate
crimes in the light of motive of the accused to take revenge on the accused regarding the FIR
launched by the victim regarding a prior incident;
 Escaping the causation conundrum;

7 Sattemma Vs. Vishnu Murthy, Fb, M. Srinivas Vs. Jawaharlal Nehru Technological Unviersity, Hyderabad (Supra)
And H. Kondal Reddy Vs. Central Bank Of India, Hyderabad.
8 S. Nagaraj v. State of Karnataka (1993) Supp. 4 SCC 595.
9 Refer Issue no. 5

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 That the victim was rendered unconscious and practically immobilized due to injury no. 1 and
could not have jumped off the train, providing enough evidence that the accused pushed her off
the train.
All these ultimately establish;
1. The victim was pushed off the train
2. The accused had the Mens Rea to murder the victim from the very beginning
I.e. this case does not fall under section 325 and falls under section 302.
The counsel most humbly considers it necessary to bring to the notice of the hon’ble court, the
previous facts of the case:
 The trial court found the accused guilty for Section 376 and Section 302 of Dastar Penal Code and
awarded him death sentence for murder and life imprisonment for the offence of rape.
 On the appeal by the accused, the High Court confirmed the judgment of trial court.
 The Supreme Court partly allowed the appeal and exonerated the accused from the charge of
murder with the observation that the prosecution failed to prove that the lady was thrown out of
the train by the accused and also failed to prove that the accused has Mens Rea to cause the injury
which subsequently resulted in death of the victim. Supreme Court modified the judgment by
convicting him under Section 325 instead of Section 302 and upheld the punishment under
Section 376, of Dastar Penal Code.
From the facts and circumstances of the case as highlighted before this honorable court, the
dislodgment of the conviction entered and sentence passed under Section 302 IPC does not appear
to be legally sustainable and thus review of the same is most respectfully requested.

II: Whether Mens Rea to cause injury no. 2 was present.


It is humbly submitted before the honorable Supreme Court of Sparta that Mens Rea to cause injury
no. 2 was present. It can be proved by taking into consideration the following facts:

II.1. Circumstances of the case indicate clearly towards the guilt of the accused.

 The motive of the accused to take revenge in the light of the FIR launched by the victim and
her friend and the dire consequences they were threatened of
One pointing issue of the case to be considered is that the victim was known to the accused. A
few days before this incident took place, the accused, according to the police investigation, was

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found teasing a female friend of the victim to which the victim objected. The accused then
threatened the victim of dire consequences if any of them complained to the police. However, the
victim, not surrendering to the threat, filed a complaint against the accused at the Sherpur police
station and the police registered an FIR against the accused and the police investigation was going
on in this matter.
The accused was a habitual offender and aggravated by this complaint made by the victim,
decided to take revenge on her. If his intent would have been simply to rob a person, he could
have robbed anyone but the fact that the accused specifically went to the women’s compartment
when the victim was alone implies that his intention was not merely to rob her but much more
than that.10
 Knowledge that victim was alone in that train compartment alone at that time
It is not a mere coincidence that the victim wass found alone by the accused in the train
compartment. Neither can any prudent man establish that a person goes with the intention to rob
and mean while commits murder and rape as well. The accused had the intention to kill the victim
from the beginning and to fulfil his intentions, he was frequently searching for her at the Sherpur
bus stop since the day of the FIR launched (people has noticed him near the Sherpur bus stop) and
while he was observing her daily routines, he concluded that she was a regular passenger of the
train from Shergarh to Sherpur district and on 1st June 2017, he got a chance when he finally
found her alone in the women compartment.
Section 8 in The Spartan Evidence Act, 1872- Motive, preparation and previous or subsequent
conduct. —Any fact is relevant which shows or constitutes a motive or preparation for any fact in
issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or
proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against whom is the subject of any
proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant
fact, and whether it was previous or subsequent thereto. Previous conduct here is relevant.

 Infliction of injuries without any provocation

10 Refer Argument II.1

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Had his intention been to just rob the victim he could have just taken her belongings and escaped.
Instead, the accused attacked the victim ferociously, smashed her head multiple times against the
wall of the compartment causing lacerated wounds, abrasions, contusions and multiple brain
hemorrhages which also rendered the victim unconscious. His intention was of clear cut murder
as even after she became unconscious he threw her out of the train to make sure she dies. Any
reasonable person can foresee that throwing an unconscious, badly wounded person out of a
speeding train would certainly cause death.
 Injury no. 1
The facts of the case clearly state that the victim died of both the injuries. Injury no. 1 was caused
by the accused when he smashed her head multiple times in the compartment of the train. A
prudent man can reasonably foresee the degree of damage that can be inflicted by hitting a
delicate body part like head against the iron walls of the train compartment.
Section 14 SPA, 1872 - Facts showing existence of state of mind, or of body or bodily feeling. —
Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when the existence of any such state
of mind or body or bodily feeling, is in issue.
 Injury no. 2
Injury no. 1, as the medical reports supplied emphasize, was sufficient to render the victim
unconscious which does not leave any scope of doubt regarding the girl jumping off the train
herself. That implies that the accused was liable to cause injury no. 2 as well.
 Checking upon the victim after throwing her out of the train
The victim was not left alone even after she was thrown out of the train. The accused jumped
from the train and searched for the victim. She was found in a pity condition, surrounded by
blood, utterly helpless and unconscious. The accused took her to the woods with an intention to
hide her body and once they were in the woods and because of the blood rushing out of the victim
and her irresponsiveness to any stimuli, he assumed that she was dead.
 Necrophilic behavior
The victim was then raped by the accused when he was satisfied that her unresponsiveness was
because she was dead (as anyone can assume after the amount of injuries inflicted of the innocent

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helpless victim). He showed necrophilic behavior when he raped her which further adds to the
gravity of his offences. The injuries caused due to rape and organ dysfunctions are also relevant.

II.2. Gravity of injury no. 1 and its consequences.


Injury no. 111 was enough to render the victim completely unconscious 12 . Multiple brain fractures
indicate that the victim’s head was smashed in the wall multiple times, mercilessly. The damage
done by the same is talked in argument no. 3. assault on victim was so violent that not only did
she fracture her head, but she sustained deep injuries.

II.3. Actus Reus and Mens Rea of injury no. 2

II.3.1. Actus Reus


The victim was unconscious because of injury no. 1 and after that she was thrown out of the
train with the intention of murder by the accused. Injury no. 2 is ‘aspiration of considerable
amount of blood resulting in anoxic brain damage’ according to Dr. Priya. With the help of
medical jurisprudence, it can be deduced that she was unconscious because she neither had the
ability to protect her head nor was she able to show the reflexes required to prevent aspiration
of blood. A conscious human, in such a situation, would be expected to:
1. Show muscular reflexes by placing his hands in a defensive position and thereby protecting his
head and other vital body parts from the type of injury the victim suffered due to falling out
the train.
2. React to the blood entering into his trachea to prevent aspiration of blood that resulted in
anoxic brain damage.

II.3.2. Mens Rea


The intention of causing death to the victim has already been proved and infliction of injury no.
2 was done in furtherance of the same objective.

11 Refer Argument III.1


12 Refer Argument III.1.1

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Issue III: Whether the accused is liable under section 302 DPC.
It is humbly submitted before the honorable Supreme Court of Sparta that the accused is liable
under section 302 DPC as all the ingredients required are being fulfilled here.

300(1) DPC defines murder. – “Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the intention of causing death.”
The accused is liable under section 302 DPC as he is liable for both injury no.1 and injury no.2

III.1 Liability for Injury no. 1

III.1.1 Medical jurisprudence provides:


According to the Dr. Priya injury no. 1 was ‘lacerated wound with a surrounding abraded
contusion on left side of forehead above eye brow, abraded contusion on right side of fore head
just above eye brow and contusion of left temporalis muscle, involving its whole thickness.
The left orbital margin showed a fissured fracture. The floor of left side of anterior cranial
fossa also showed fracture. There is traumatic disruption of stem of pituitary gland and left
frontal lobe of brain showed multiple areas of hemorrhage and this was out of the hitting of her
head at the wall of compartment of train’.
Supreme Court has already acknowledged that the attack inside the train was brutal. Section
325 (voluntarily causing grievous hurt) was invoked by the apex court which itself has
recognized injury no. one on the victim's body as a major reason for her death.

 Frontal Lobe
The frontal lobe 13 is the part of the brain that controls important cognitive skills in humans,
such as emotional expression, problem solving, memory, language, judgment etc. It is, in
essence, the “control panel” of our body.
Damage to frontal lobe 14

13 Salardani Arash & Jose Biller, The Hospital Neurology Book.


14 Salardani Arash & Jose Biller, The Hospital Neurology Book.

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As a result of a brain injury, frontal lobe damage may impair your attention span, motivation,
judgment, and organizational capacity. Frontal lobe damage will affect language, verbal skills
and positive emotions, while right frontal lobe damage will affect non-verbal communication
and negative emotions.

 Temporalis Muscle 15
The temporalis muscle covers the side of the head in front, above and behind the ear. It is a
very large muscle that attaches at the top of the mandible and fans out on both sides of the head
along the side of the skull. The temporal muscle can be divided into two functional parts;
anterior and posterior. The anterior portion runs vertically and its contraction results in
elevation of the mandible (closing the mouth). The posterior portion has fibers which run
horizontally and contraction of this portion results in retrusion of the mandible.

 Orbital Margin16
Orbital Margin is mostly the sharp edge of the orbital opening that is the peripheral border of
the base of the pyramidal orbit. The superior half of the orbital rim is the supraorbital margin;
the inferior half is the infra orbital margin. It is the edge of the socket that contains the
eyeballs.
Damage to orbital margin17
Orbital fractures are commonly seen with mid-facial trauma. Fracture severity ranges from
small minimally displaced fractures of an isolated wall that require no surgical intervention to
major disruption of the orbit.

 Cranial Fossa18
The anterior cranial fossa is a depression in the floor of the cranial base which houses the
projecting frontal lobes of the brain. It is formed by the orbital plates of the frontal, the
cribriform plate of the ethmoid, and the small wings and front part of the body of the sphenoid;
it is limited behind by the posterior borders of the small wings of the sphenoid and by the

15 Thompson Jon C., Netter’s Concise Orthopaedic Anatomy.


16 Blumenfeld Hal, Neuroanatomy Through Clinical Cases
17 Blumenfeld Hal, Neuroanatomy Through Clinical Cases
18 Maheshwari J., Essential Orthopaedics

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anterior margin of the chiasmatic groove. The lesser wings of the sphenoid separate the
anterior and middle fossae.

 Pituitary Gland19
The pituitary gland, or hypophysis, is an endocrine gland about the size of a pea and weighing
0.5 grams (0.018 oz) in humans. It is a protrusion off the bottom of the hypothalamus at the
base of the brain. The hypophysis rests upon the hypophysial fossa of the sphenoid bone in the
center of the middle cranial fossa and is surrounded by a small bony cavity (sella turcica)
covered by a dural fold (diaphragma sellae).

III.1.2. Infliction of injury no. 1


Injury no. 1 was inflicted without any provocation and purely to kill the victim as he intended.
Her head was smashed multiple times against the wall of the compartment which damaged the
major parts of her brain, taking away her power to react and defend herself leading her into a
state of unconsciousness. The gravity of injuries inflicted severely negates the contention that,
the intention of the accused was only to hurt the victim. The sole motive of the accused seems
to inflict such injuries on the victim, which under ordinary course, would lead to death of the
victim. Accused's assault on the victim was so violent that not only did she fracture her head,
but she sustained deep injuries.

III.1.3. Mens rea


The accused, as the prosecution counsel has submitted above, was observing the victim and her
daily routines for the past few days. On that unfortunate day, he finally got a chance to take his
revenge on her and relieve himself from the grudge he had since the FIR was filed against him
by the victim. He entered the women’s compartment when she was alone there.
Firstly, he snatched her phone, thereby making her incapable of getting any kind of help.
Secondly, smashed her head multiple times resulting in multiple head injuries and rendering
the victim unconscious.

19 Blumenfeld Hal, Neuroanatomy Through Clinical Cases

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The victim sustained injuries inside the train when her head was repeatedly banged on the
compartment floor by the accused, and this was itself sufficient to have caused her death and
thus this amounts to murder.

III.2. Liability for Injury no. 2


III.2.1. Medical jurisprudence provides:
According to Dr. Priya, injury no. 2 was ‘aspiration of considerable amount of blood resulting
in anoxic brain damage’. Anoxic brain injury which is also called cerebral hypoxia or hypoxic-
anoxic injury (HAI) is a serious, life-threatening injury; it can cause cognitive problems and
disabilities. The term anoxic means total lack. The greater the loss of oxygen, the more wide-
spread and serious the injury will be. 20 Aspiration is defined as the inhalation of foreign
material into the airways beyond the vocal cords. The content of the aspirate is variable and
may comprise secretions, blood, bacteria, liquids and food particles. Aspiration may be silent
(or unwitnessed) or witnessed. Additionally, aspiration could involve repeated episodes of
micro-aspiration that rarely cause acute symptoms. Aspiration is different from regurgitation
where the reflux of gastric contents into the oropharynx or the esophagus is not associated with
entry into the lungs.21
III.2.2. Infliction of injury no. 2
Once the victim was rendered unconscious due to injury no. 1, the accused pushed her towards
the closing door and threw her out of the train.22 The victim being unconscious couldn’t guard
herself which a conscious person would reflexively do and thus she suffered from anoxic brain
damage arising out of aspiration of considerable amount of blood. The grievously injured and
“half-dead” victim was mercilessly pushed off the train to make sure she dies.

III.2.3. Mens Rea to cause injury no. 2


The accused had the intention to kill the victim with the ultimate motive of revenge. After
inflicting injury no.1, the accused wanted to make sure, that the victim should not survive the
ordeal and in order to do so, he pushed the ‘unconscious’ victim out of the moving train. The
accused tried to portray this cold blooded murder as a robbery resulting in grievous hurt on his

20 Brainandspinalcord.org
21 Stedman’s medical dictionary
22 Moot proposition

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part but, as our counsel respectfully submits, it is not a case of robbery or grievous hurt but of
murder which the series of events explained further clarify. 23
 The victim was unconscious, so the probability that she herself jumped out of the train is
negated.
 Further, the hearsay evidence from 3rd party that she jumped from the train is not
admissible in the court of law.

III.3. Combination of injuries that lead to the death of the victim


The accused was wrongfully acquitted of the charge of murder because the court could not
reasonably ascertain the circumstances of the case and was misled by the opposite counsel into
believing the same. But, as the circumstances of the case with regards to our arguments advanced
prove, the accused is indeed liable for injury no. 2 and therefore must be convicted of the charge
of murder.
Mens rea is an important point to consider by the High Court when a case was sent for its
reference for the confirmation of a death sentence under CrPC 24 .
"In the above cases, it has been observed that once a person has been convicted, normally, an
appellate court will proceed on the basis that such person is guilty. It is no doubt true that even
thereafter, it is open to the appellate court to suspend the sentence in a given case by recording
reasons. But it is well settled that in considering a prayer involving
a serious offence like murder punishable under Section 302 DPC, the Court should consider all
the relevant factors like the nature of accusation made against the accused, the manner in which
the crime is alleged to have been committed, the gravity of the offence, etc. It has also been
observed in some of the cases that normal practice in such cases is not to suspend the sentence
and it is only in exceptional cases that the benefit of suspension of sentence can be granted.25

Issue IV: Whether conviction is possible on the basis of circumstantial evidence.

It is humbly submitted before the honorable Supreme Court of Sparta that conviction is possible on
the basis of circumstantial evidence. As the following arguments and authorities cited establish,

23 Refer Argument IV.2


24 Subramanian Swamy vs A. Raja, SLP (Crl.) No. 1688 of 2012 and I.A. No. 34 of 2012 In Civil Appeal No. 10660 of
2010; Kunal Majumdar Vs State of Rajasthan, Criminal Appeal No. 407 of 2008 .
25 Dashrath vs The State Of M.P.,decided in 2017 Cr.A. No.1248/2005

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conviction is possible on the basis of circumstantial evidence when those circumstances satisfy the
tests established by the Supreme Court for the same.

IV.1. Liability on the basis of Circumstantial Evidence


The Apex Court has held that there is no doubt that conviction can be based solely on
circumstantial evidence26 , but it should be tested by touch stone of law relating to circumstantial
evidence laid down by Supreme Court27 . It is well established that victims may lie but
circumstances do not28 . A prosecution case may rest on circumstantial evidence only but
conviction is only possible when those circumstances are firmly established and further points
definitely towards the guilt of the accused29 . There are four essentials that must be fulfilled for
conviction of the accused solely on the basis of the circumstantial evidence, the conditions are:
 That the circumstances from which the guilt is established must be fully proved;
 That all the facts must be consistent with the hypothesis of the guilt of the accused;
 That the circumstances must be of a conclusive nature and tendency;
 That the circumstances should, to a moral certainty, actually exclude every hypothesis
except the one proposed to be proved.30
All these four essentials are being fulfilled in this present case and thus, conviction solely on this
basis is possible and is hereby humbly sort.
In a case, the conviction was based on circumstantial evidence as no one saw the accused
committing murder of the deceased and paucity of direct evidence cannot justify acquittal of a
guilty person31 . While dealing with the said conviction based on circumstantial evidence, the
circumstances from which the conclusion of the guilt is to be drawn should in the first instance
be fully established, and all the facts so established should also be consistent with only one
hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution
to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.

26 Bodhraj alias Bodha v. State of J & K, (2002) 8 SCC 45 : (2002) Cri LJ 4664 : AIR 2002 SC 3164
27 Hanumant Govind Nargundkar case, AIR 1952 SC 343 : (1953 Cri LJ 129); Ashish Batham v. State of Madhya
Pradesh AIR 2002 SC 3206
28 State of Uttar Pradesh v. Satish , 2005 (2) Scale 33
29 Shripad Shivram, Kulkarni v. State of Maharashtra,, AIR 1981 SC 34 (38)
30 State v. Shankar Prasad 1052 A 1776 :1952 Cr LJ 1334 ; Ratanlal v. Rex, 1949 A 222; Q.E. v. Hos Nath, 1941

ALJ 416 : 1952 SC 343, Mangalashwari, 1954 SC 715; Bhagat Ram v. State, 1854 SC 621
31 Majendran Langeswaran vs State (NCT of Delhi) & Anr; Criminal Appeal No. 1300 OF 2009

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Circumstantial evidence is merely a direct evidence indirectly applied. And direct evidence when
closely analysed, is found to possess interential quality. 32 The principle of circumstantial
evidence is simply that every link in the circumstantial evidence must be proved.33

IV.2. The series of events that conclude the guilt of the accused are as following
 The victim had launched an FIR against the accused and the accused, infuriated by the
same, threatened the victim of dire consequences.
 The accused wanted to relieve his grudges against the victim and started to take notice of
the victim daily routines and from that he found out that the victim was a daily passenger of
the train from Shergarh to Sherpur district.
 On 1st June 2017, the accused found the victim alone in the women’s compartment and
decided to execute his plans of murdering the victim.
 He barged into the women’s compartment and started banging her head into the walls of
the train without any provocation and purely to kill the victim.
 The victim sustained multiple fractures in the skull which rendered her unconscious.
 To make sure the victim did not make it out alive, the accused pushed her out of the
speeding train.
 To check whether she was dead or not, the accused himself jumped out of the train.
 The accused found her lying in a pool of blood, with huge amount of blood flowing out of
the victim’s body and the injuries sustained, the accused presumed her to be dead.
 He took her to the woods, raped the presumed dead victim (which shows the accused is a
necrophile), resulting in multiple organ dysfunction and anoxic brain damage due to
aspiration of blood into the trachea.
 After raping her, he left her in the woods as according to the accused she was already dead,
and fled the crime scene.

The accused, who is a habitual offender, could notice that the deceased was left alone in the
compartment. When the train moved towards Sherpur, the accused swiftly hoisted into that
ladies’ compartment, and rushed to the victim. The screaming victim frantically ran here and

32 Burrill, Alexander M., Circumstantial Evidence, Rama Nand v. state of Himachal Pradesh, AIR 1981 SC 738
(743)
33 Per Adam J., in Niru Bhagat v. E., 24 Cr LJ 91

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there in a fury in the limited space available in the compartment, in order to escape from the
clutches of the accused. She resisted but failed. She was caught and her head was forcibly hit
repeatedly on the walls of the compartment. On sustaining fatal injuries, she became practically
immobilized. Her screams died down in the compartment. She was dropped from the running
train down to the track. The side of her face forcibly hit on the crossover of the railway line.
The accused jumped down from the running train on the other side, rushed to her, and lifted her
to a shady place in the woods at the side of the track. He hurriedly raped the poor girl whose face
was full of blood, oozing out from the injuries on her head. He acted as a necrophile. After
satisfying his lust, the accused fled the scene leaving the victim.
It is the humble view of the prosecution that, it is a rarest of rare case and all necessary evidence
including circumstantial evidence is sufficient enough to prove that the accused was the
murderer.
Section 136 SEA, 1872- Judge to decide as to admissibility of evidence.—When either party
proposes to give evidence of any fact, the Judge may ask the party proposing to give the
evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall
admit the evidence if he thinks that the fact, if proved, would be relevant, and not
otherwise. If the fact proposed to be proved is one of which evidence is admissible only
upon proof of some other fact, such last-mentioned fact must be proved before evidence is
given of the fact first mentioned, unless the party undertakes to give proof of such fact , and
the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends
upon another alleged fact being first proved, the Judge may, in his discretion, either permit
evidence of the first fact to be given before the second fact is proved, or require evidence to
be given of the second fact before evidence is given of the first fact.

Issue V. Whether the following relevant principles were neglected by the court.

V.1. Rule against hearsay evidence


Section 60 of SEA34 deals with oral evidence and excludes hearsay evidence. The underlying
principle regarding ‘hearsay’ evidence is that hearsay evidence is no evidence35 . The rejection of
hearsay evidence is based on its relative untrustworthiness for judicial purposes owing to,

34 Spartan Evidence Act, 1872 (Sec. 60- Oral evidence must be direct)

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1. The irresponsibility of the original declarant;


2. The depreciation of truth in the process of repetition; and
3. The opportunities for fraud in its admission. 36
Section 63 of the Evidence Act explicitly provides that oral evidence must be direct.
Evidence of a witness as to what was said to him by another person is not admissible, unless that
person himself deposes to that fact as a witness, because oral evidence must always be direct and
hearsay is no evidence. 37 When a witness testifies as to the information having been given to
him by another and the latter is not examined, the testimony is not admissible being hearsay. 38
The rule against hearsay is stated as follows: “A statement made by a person not called as a
witness which is offered in evidence to prove the truth of the fact contained in the statement is
hearsay and it is not admissible. If however the statement is offered in evidence, not to prove the
truth of the facts contained in the statement but only to prove that the statement was in fact made
it is not hearsay and it is admissible”. 39

This species of evidence is not given up on oath, it cannot be tested by cross examination. It's
tendency to retract legal investigations to embarrassing and dangerous length, its intrinsic
weakness, it’s incompetency to satisfy the mind of the existence of the fact and the process
which may be practiced with impunity under its cover combine to support the rule that hearsay
evidence is inadmissible.

Bakhora Chowdhary v. State of Bihar 40 is a case where the allegation was that husband along
with his father killed his wife and the witnesses produced testified that they had heard of the
happening from some villagers, it was rejected as a hearsay resulting in setting aside of
conviction.

Similarly, In Jadoo Singh v. Malti Devi 41 where the question was whether Jadoo was driving
the bus at a particular time. Not one witness with direct oral evidence was produced. The

35 Principle of English Jurisprudence


36 Hazara Singh v. Attar Singh, AIR 1976 PUNJ 24
37 State Collector Of Central Excise v. Papas Kumar Shome, 1985, Cr LJ 871 (Ori)
38 Channu v. E., 1948 Cal 125.
39 Justice De Silva
40 1991 Cr LJ 91 (Pat.)
41 AIR 1983 All 87. Statement of a witness that the accused was a manager of the truck which was used as carrying

Contraband rejected he had no personal knowledge of the managership and was speaking on information provided.
Bhugdomal v State of Gujrat, (1984)1 SCC 319: AIR 1983 SC 906: 1983 Cr LJ 1276

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witnesses produced were telling the court that others had told them something and such evidence
was not allowed in the court of law stating the rule against hearsay.

 How can this unnamed man, whose description was not given, claim to have seen her
jump out making an escape and that she was alive? And why is the Hon’ble Supreme Court is
relying on that statement?
 How can the Supreme Court believe the “hearsay” evidence of two witnesses who gave
the version of an unknown and unidentified man on the train?

V.2. Victim escape cases and rules of causation

Arguendo: The accused sexually assaulted the girl and banged her head repeatedly, causing
serious injuries to the head and brain. In that condition, even if she jumped out of a moving train,
the act of the deceased should be taken as a consequence of the threat posed by the accused. So
he should face death penalty for murder.

Causation analysis involves a two-step processes. The first issue to be determined is whether the
actions of the defendant led to the consequence that followed.42 The simplest articulation of the
principle of factual causation is provided by the “but for” or the sine qua non principle. 43 In
homicide, the question is – would death have occurred but for the defendant’s acts.44 The second
step in the process is to establish legal causation.

Legal causation is governed by legal principles,45 based on which the criminal responsibility of
the defendant is determined. The Supreme Court erred in the present case by conflating “factual”

42 Eric Colvin, ‘Causation in Criminal Law’ (1989) 1 BLR 253, 254; John E Stannard, ‘Criminal Causation and the
Careless Doctor’ (1992) 55 MLR 577, 579
43 1AP Simester and others, Simester and Sullivan’s Criminal Law: Theory and Do ctrine (5th edn, Hart Publishing

2013) 83; Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (2nd edn,
Lexis Nexis 2012) 116.
44 John E Stannard, ‘Criminal Causation and the Careless Doctor’ (1992) 55 MLR 577, 579
45 First, the contribution of the defendant should be more than trivial; second, the defendant’s causal role must also

be salient [Hart and Honore provide the example of handing a child a loaded gun being proscribed as a negligent act.
The law proscribes such act considering the danger of the child accidentally shooting itself. If the child injures itself
by dropping the loaded gun on its foot, the injury to the foot is not relevant to the offence as defined. The reason

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and “legal” causation. It assumed that if the acts of the defendant lead to a consequence, he will
also be criminally responsible for that consequence.

Although causation is an essential element in all crimes, it is only in rare cases that questions of
causation are in dispute.46 One such case is where multiple causes lead to the eventual result. 47
The role of each actor/event becomes relevant in such a case.48

Interventions by third parties, by natural events, or by the victim herself raise questions as to
whether the intervention breaks the causal chain initiated by the defendant.49 In this case, the
Court ruled that unless the prosecution proves that the defendant had pushed the victim off the
train, he would not be responsible for the injuries she sustained from the fall.

Thereby, it implied that the victim jumping off the train, or falling off accidentally would break
the chain of causation. While arriving at this conclusion, the Court failed to take note of the law
with respect to interventions by victims.

Interventions by victims

In common law, the general rule that governs interventions by victims is that the defendant will
be liable for the consequences that ensue due to her intervention if two conditions are fulfilled –
first, that the victim’s conduct is a reaction to the acts of the defendant, and secondly, the
victim’s reaction was reasonably foreseeable.50

why the defendant is at fault is not an important or relevant factor in relation to the injury that the child sustains.
See: HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University Press 2002) lxiii];
third, in case where there are multiple causes operating, the defendant will be liable if at the time of the consequence
ensuing (death in case of homicide), the defendant’s acts continue to be a “significant and operating cause”. - See:
Simester and others (n 11) 86–87; Stannard (n 12) 579; R v Smith [1959] 2 QB 35. The Indian Penal Code in
Explanations 1 and 2 to Section 299, states two principles governing causation in homicide – first, that a person who
causes bodily injury to another person, labouring under a disorder, disease or bodily infirmity and accelerates his/her
death will be liable for causing death; second, if death is caused by a bodily injury, the person who causes such
injury will be liable for causing death, although death could have been prevented by “resorting to skilful remedies
and proper treatment”. The Code reflects common law rules on causation at the time of its drafting.
46 See: Stannard (n 12) 577; R v David Keith Pagett [1983] 76 CAR 279, 288; Brenda Midson, ‘Teaching Causation

in Criminal Law: Learning to Think Like Policy Analysts’ (2010) 20 LER 109, 111.
47 Colvin (n 10) 255
48 See for instance: R v Kirikiri [1982] 2 NZLR 648; Stephenson v State 205 Ind. 141
49 See: Simester and others (n 11) 86–103
50 Ibid 101.

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This test was formulated by the Court of Appeal (Criminal Division) in R v. Roberts. 51 The
Court also ruled that the test was “objective”, in the sense that “reasonable foreseeability” should
be assessed from the perspective of a “reasonable man”, and not the defendant in question.52
Hence, unless the victim’s response is out of the ordinary, it will not break the chain of causation
initiated by the acts of the defendant.

In R v. Williams, 53 the Court of Appeal articulated the test again, when it held that the chain of
causation does not break where the victim is killed while fleeing from violence if two
requirements are satisfied.54 First, the conduct of the deceased victim must be foreseeable by a
“reasonable and responsible man in the assailant’s shoes”. 55 Secondly, the unlawful act by the
defendant “must be such that all sober and reasonable people would inevitably recognise must
subject the other person to some harm resulting therefrom, albeit not serious harm”.56

The Court noted that the nature of the threat was an important consideration in assessing the
foreseeability of the harm to the victim, as well as the conduct of the deceased victim.57

The Court laid down tests relating to victim intervention in Royall v. R.58 . (The facts of Royall
are somewhat similar to this case, making it relevant here). The victim was killed when she fell
from the window of the bathroom of a sixth-floor apartment that she shared with the defendant.
The defendant had been violent towards the deceased in the days preceding the incident. He
admitted that on the day of the victim’s death, there had been a violent argument between the
two of them. He punched the victim in her face, pulled her hair and shook her.

Blood was found in various parts of the apartment, including the bathroom. There was also
evidence of forced entry into the bathroom, and of a struggle there. The jury had to determine
whether the victim had jumped, fallen off, or had been pushed out of the window by the
defendant.

51 [1971] 56 CAR 95, 102.


52 R v.Roberts [1971] 56 CAR 95, 102
53 [1992] 1 WLR 380.
54 Ibid 388.
55 Ibid.
56 Ibid.
57 Ibid.389
58 [1991] HCA 27.

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In the first two scenarios, the question was whether the acts of the victim in self-preservation
break the chain of causation between the violence and the victim’s death. The trial judge, in
directing the jury, had stated that the causal link does not break if the victim has a “well- founded
and reasonable apprehension” of life-threatening violence, and had jumped out of the window to
escape from such violence.59

Four tests were suggested in Royall to determine the liability of the defendant60 :

 the reasonable act test;


 the well-founded apprehension test;
 the natural consequence test; and
 the foresight test.61

Although the majority in Royall used the “natural consequence test” 62 in arriving at its decision,
Yeo argues that “foresight” test should be applied in cases of escape/fright.63

The foresight test posits that the defendant’s liability will continue if he could have reasonably
foreseen that the victim would act in the manner in which she did in order to avoid the acts of the
defendant. Thus, the focus is solely on the defendant, and it can be assessed either through the
perspective of the defendant (subjective test) or from the perspective of a reasonable third person
(objective test).64

In their authoritative treatise on causation, Hart and Honoré argue that the determination of
whether the victim’s acts breaks the chain of causation should be made based on the
voluntariness of such acts.65 They argue that if the victim’s acts are fully voluntary, the chain
will break; if involuntary, the defendant will continue to be responsible.66

59 Ibid [18]
60 Stanley Yeo, ‘An Australian Evaluation of Causation in Fright Cases’ (1993) 57 JCL 390, 391
61 Ibid. For a critique of the tests developed by the High Court in Royall, see: Stephen Shute, ‘Causation:

Forseeability v Natural Consequences’ (1992) 55 MLR 584, 586..


62 The natural consequence test was articulated by Chief Justice Mason as follows: “[W]here the conduct of the

accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural
consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping,
the injury is caused by the accused’s conduct”. Royall v R [1991] HCA 27 [21].
63 Yeo (n 28) 397.
64 Ibid 395–397.
65 HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University Press 2002) 329.
66 Ibid 329–330.

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A related argument is that voluntary acts do not break the chain of causation in certain situations
– where there is an element of involuntariness intrinsic in the voluntary act. The lack of
choice makes the perceived voluntary act, involuntary.67 Suicide after an attack and escape from
violent crimes are examples of such a situation.68 In escapes from violent crimes, self-
preservation is said to negate the voluntariness of the victim’s actions.69

As noted earlier, in assessing foreseeability of the victim’s response, the reasonableness of the
response becomes a relevant factor. Whether the actions of the victim are reasonable is a tricky
issue when escape is from possible rape.

Crocker argues that when women are socialised into believing that they should risk their lives or
limbs to avoid rape, disproportionate reactions are inevitable.70 He argues that when a man
attempts rape, he should know that a “hysterical” or disproportionate response is a possibility.
Consequently, the man should be held liable for consequences that ensue, including death.71

The same argument may be made in the Indian context;

The Supreme Court of India has regularly noted that rape leads to “deathless shame,” 72 and
impacts the honour73 and “value,” 74 of a woman. Although one may criticize and frown at such
stereotyping,75 and suggest reforms to the law,76 it is but natural that such rulings and beliefs
influence, and possibly reflect societal perceptions. In such a context, a man attempting rape
should know that the woman may take perceived unreasonable and disproportionate steps to
escape rape.

67 Rebecca Williams, ‘Policy and Principle in Drugs Manslaughter Cases’ (2005) 64 CLJ 66, 70.
68 Lawrence Crocker, ‘A Retributive Theory of Criminal Causation’ (1994) 5 JCLI 65, 85–89; Timothy H Jones,
‘Causation, Homicide and the Supply of Drugs’ (2006) 26 LS 139, 142.
69 See Alan Norrie, ‘A Critique of Criminal Causation’ (1991) 54 MLR 685, 694.
70 Crocker (n 36) 90.
71 Ibid.
72 Rafiq v State of Uttar Pradesh [1980] 4 SCC 262. For a discussion see: Mrinal Satish, Discretion, Discrimination

and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press 2017) 44.
73 Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] 3 SCC 217.
74 State of Uttar Pradesh v Chhoteylal [2011] (1) SCALE 454.
75 Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge

University Press 2017) 40–45.


76 The Justice Verma Committee on Amendments to Criminal Laws 2013.

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MEMORIAL ON BEHALF OF PETITIONER
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The Indian approach in escape cases;

Basappa v. State 77 is an example of a case where an Indian court articulated principles of


causation in its decision-making. Basappa involved an “escape” scenario. The victim was on the
roof of a house, when the four defendants attacked him with dangerous weapons. After they had
inflicted injuries on his neck, the victim jumped from the roof – a height of 12 feet – to escape
the attack. He fell to the ground and was rendered unconscious. Thereafter, the defendants threw
him into a haystack which was on fire.

Since the body was completely charred, the autopsy could not indicate whether death had been
caused due to the weapon injuries, the injuries sustained due to the fall, or whether the victim
had been burnt to death.

The question was whether the defendants would continue to be responsible for the victim’s death
if he had died because of injuries sustained due to the fall. The court ruled that in light of the
situation that the victim was in, he had the option of either being “hacked to death” or attempting
to escape by jumping off the roof.

He had chosen the latter, and his actions, the court ruled, were a “direct result” of the actions of
the defendant – “a normal and necessary consequence of the acts of the [defendant]”. 78 Yeo,

Morgan and Wing-Cheong argue that the court applied the “foreseeability test”79 in this case,
since the “normal and necessary consequence” test implies reasonable foreseeability.80

The prosecution counsel relies on this case, to argue that the accused’s liability continued
irrespective of whether the victim was pushed, jumped or fell off the train.

But, the Supreme Court, while acquitting the accused from the charge of murder, unfortunately
did not analyze whether any of the tests of causation and victim intervention/escape apply in this
case. The focus remained on whether the victim was intentionally pushed off the train or whether
she jumped off it.

77 AIR [1960] Mys 228.


78 Ibid 229.
79 Yeo, Morgan and Cheong (n 45) 128–29.
80 Ibid 129.

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Another case relevant here is Joginder Singh v. State of Punjab81 . In this case, the two
defendants attacked the deceased man and his family in their house. Anticipating danger to his
life and limbs, the victim ran out of the house, and then jumped into a well, when the defendants
were 15–20 feet behind him.82 The victim hit his head against the wall of the well, lost
consciousness, and drowned. The Court absolved the defendant of the liability of the victim’s
death, holding that death was not homicidal. However, the Court ruled that if the victim had
jumped into the well since there was no other option before him, they may have held that
defendant liable for homicide.83 Thus, the Court recognised the “foreseeability” principle in
escape cases, and ruled that it did not apply in the case before it.

And in the present case, Supreme Court completely ignored the line of the judgment of the above
cited case (where the Court itself had previously articulated the principle in escape cases).

 So the prosecution most humbly raises the question that though, the victim was
unconscious, how does it matter if she jumped out of the moving train or was pushed out? She
was trying to escape a “murderous assault”. Do we expect the girl to stay on the train and die?”
 The grievously injured and “half-dead” victim may have even staggered out of the
compartment door.

V.3. One Sequential Event

The prosecution most humbly pleads that it did not matter whether the victim “fell off” the
running train or “jumped off”; and that the court previously failed to view a complete picture of
the criminal antecedents of the accused. The apex court should have first considered the
accused’s presence in the train, his intention to cause her harm and the brutal assault in the train
which culminated in her rape and death.

The accused's assault on the victim inside and outside the train should be treated as one
sequential crime and not as separate crimes as is being treated by the Supreme Court, which
thus held that the murder charge is not proved.

81 [1980] 1 SCC 493.


82 Ibid 497.
83 Ibid 498.

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MEMORIAL ON BEHALF OF PETITIONER
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Issue VI: Whether the court’s decision acquitting the accused from the charge of
Section 302 of Dastar Penal Code is justifiable.

It is humbly submitted before the honorable Supreme Court of Sparta that the court’s decision
acquitting the accused from the charge of Section 302 of Dastar Penal Code is not justified because:
VI.1. The fact, regarding the Mens Rea to cause the injury no.2 was present, was neglected
by the Supreme Court of Sparta.
The actual intention of the accused was to kill the victim and injury no. 2 was inflicted on her to
make sure that the unconscious victim dies. This whole scenario was portrayed as a robbery by
the accused.

VI.2. Injury no.1 and injury no.2 were the cause of the death of the victim, and both of
them were intentionally inflicted by the accused on the victim.
It has already been discussed above that the accused had the Mens Rea and is liable for the Actus
Reus of both injuries which constituted the reason of death of the victim and thus he is absolutely
liable for murder.

VI.3. This case does not fall under section 325 DPC.
The Hon’ble Supreme Court was mistaken about the liability of the accused regarding injury no.
2 and that is why placed the case in section 325 DPC making the accused liable for only injury
no. 1. But as our counsel humbly submits, he is clearly and absolutely liable for murder and thus
punishable with death penalty under section 302 DPC.

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MEMORIAL ON BEHALF OF PETITIONER
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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. Hold the accused liable under the charge of murder in accordance with section 302 DPC read
with section 300 DPC.

2. Award death penalty to the accused under section 302 DPC.

3. Fine the accused in regards to the provisions of section 302 DPC.

4. Award compensatory damages to the relatives of the accused in regards to this offence so
established.

AND/OR

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

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSEL ON BEHALF OF THE PETITIONER

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