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MEMORIAL ON BEHALF OF PETITIONER
PUSSGRC Inter-College Moot Court Competition - 2017
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
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
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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
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INDEX OF AUTHORITIES
CASES
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STATUTES
MISCELLANEOUS
1) Constitution of India
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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.
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
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
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
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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 :
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.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.
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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.
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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
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
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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
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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).
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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.
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.
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,
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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.
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.
34 Spartan Evidence Act, 1872 (Sec. 60- Oral evidence must be direct)
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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
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?
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.
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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 :
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:
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 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
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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.
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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.
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.
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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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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.
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.
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