TA-11

2ND JUS LEX, NATIONAL TRIAL ADVOCACY COMPETITION, 2019

BEFORE THE COURT OF THE PRINCIPAL SESSIONS JUDGE, AGRAHAM, KAVERI

SC no. 1994 of 2019

IN THE MATTER BETWEEN

State of Kaveri …Prosecution

v.
Mr. Sanjeev & other ….Defence

FOR OFFENCES CHARGED UNDER:

SECTION 302, SECTION 304B, SECTION 498A OF DRAVIDIAN PENAL CODE
& SECTION 4 OF THE DOWRY PROHIBITION ACT, 1961
DRAVIDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE PRINCIPAL SESSIONS

JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

Memorial on behalf of the Defence

 2

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .............................................................................................................. 3

STATEMENT OF JURISDICTION ................................................................................................... 4

STATEMENT OF FACTS ................................................................................................................... 5

ISSUES RAISED ................................................................................................................................... 6

SUMMARY OF ARGUMENTS .......................................................................................................... 7

ARGUMENTS ADVANCED ............................................................................................................... 8

[ISSUE- 1] WHETHER THE ACCUSED PERSONS ARE LIABLE OF COMMITTING

DOWRY DEATH U/S 304-B, AND CAUSING CRUELTY U/S 498-A AND SECTION 4, OF
THE DOWRY PROHIBITION ACT? ........................................................................................... 8

1.1. That the Accused Persons are not guilty of Dowry Death u/s 304-B, DPC. ................. 8

1.2 That the Accused Persons are not guilty of Cruelty or harassment charged u/s 498A,
DPC. ............................................................................................................................................... 9

1.3 That Presumption of Dowry death u/s 113-B, DEA, holds no ground. ............................ 11

[ISSUE- 2] WHETHER THE ACCUSED PERSONS ARE LIABLE OF COMMITTING

MURDER UNDER SEC. 302 OF DPC? ....................................................................................... 14

2.1. Actus Reus of Murder not established ............................................................................... 14

2.2. Mens Rea and Conduct of the Accused .............................................................................. 18

[ISSUE-3] WHETHER THE ACCUSED PERSONS ARE LIABLE TO DEFEND

THEMSELVES AS PER THE GROUNDS OF ‘ÇIRCUMSTANTIAL EVIDENCE’ AND
‘BEYOND REASONABLE DOUBT’? ......................................................................................... 19

3.1 The Circumstantial Evidence fails to substantiate the guilt of Mr. Sanjeev (hereinafter
referred to as ‘A1’), Mrs. Meena (hereinafter referred to as ‘A2’) & Mr. Chandran
(hereinafter referred to as ‘A3’) and the investigation conducted is doubtful and erroneous.
...................................................................................................................................................... 19

3.2 There exists a reasonable doubt about whether the crime under Section 304 B and 498
A of the Dravidian Penal Code has been truly committed by the Accused 1, 2 & 3. ............ 22

PRAYER .............................................................................................................................................. 26

Memorial on behalf of the Defence

 3

LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS EXPANSION

A Accused
AC Appellate cases
AIR All India Reporter
Anr. Another
Art. Article
Cri.L.J. Criminal Law Journal
Cr.P.C. Criminal Procedure Code
DW Defence Witness
FIR First Information Report
Hon’ble Honourable
HC High Court
ICU Intensive Care Unit
DEA Dravidian Evidence Act
DPC Dravidian Penal Code
Ibid Ibidem
Ors. Others
PW Prosecution Witness
r/w Read With
SC Supreme Court
SCC Supreme Court Cases
Sd/- Signed
Supp. Supplementary
Supra Supra Note
v. Versus
& And
¶ Paragraph

Memorial on behalf of the Defence

 4

STATEMENT OF JURISDICTION
The Prosecution State of Kaveri has approached this Hon’ble Court of Principal Sessions Judge
under Sec. 177 of the Criminal Procedure Code, 1973 which states that “every offence shall
ordinarily be inquired and tried by a court within whose local jurisdiction it was committed”

The learned trial court has jurisdiction to take cognizance of this matter as per Sec. 26 of the
Criminal Procedure Code, 1973, which says that, any offence under the Dravidian Penal Code,
1860 maybe tried by the Court of Sessions.

Further, this Hon’ble Sessions Court is competent to hear and decide the matter as per
Schedule- I of the Criminal Procedure Code, 1973.

The Prosecution, State of Kaveri hence humbly submits to the jurisdiction of the Hon’ble Court
of Principal Sessions Judge.

Memorial on behalf of the Defence

 5

STATEMENT OF FACTS
The State/Prosecution would humbly submit before the Hon’ble Court of the Principal Sessions
Judge that following are the facts of the present case:

1. The following is the list of persons involved:

A-1, DW-1 Sanjeev Husband of the deceased
A-2, DW-2 Meena Mother-in-law of deceased
A-3, DW-3 Chandran Father-in-law of deceased
PW-1 Geetha Mother of deceased
PW-2 Kalyani Housemaid in deceased’s matrimonial house
PW-3 Mano Neighbour of deceased
PW-4 Dr. Kanisha Medical Practitioner
2. Alya and Sanjeev’s marriage was solemnised and Alya lived happily in her matrimonial
home “Sanjeev Villa”. When Alya was six months pregnant, she was forcibly sent back
to her parental home on demand of money.
3. Later, Alya returned back to the matrimonial home and they were blessed with a baby
girl, but the demand for dowry continued as the years passed by and was accompanied
by physical and mental harassment.
4. On 08/07/19, few of the neighbours rushed into Sanjeev’s house on hearing the
commotion and loud cry and on seeing the condition of Alya, neighbours helped
Sanjeev to admit his wife to hospital and she was kept in the ICU.
5. Alya’s condition worsened and doctors announced that there was no hope for her
survival. Subsequently, on the same day she breathed her last after giving a dying
declaration to the judicial magistrate.
6. In the dying declaration, Alya stated that “she was physically abused, made to starve
they and was fed only soaked rice and sugared water for bare survival.”
7. Subsequently, an FIR was registered against A-1, A-2, A-3 under Sec. 302, 304B, 498A
of the Dravidian Penal Code, 1860 and Sec. 4 of the Dowry Prohibition Act, 1961 and
were arrested. The daughter of the deceased was sent to the Child Protection Home.
8. The police conducted investigation and forwarded the final report to the jurisdictional
Magistrate Court. The court took cognizance; served copies of the final report,
statements and other documents.
The case is hence listed for trial in this Hon’ble Court of Principal Sessions Judge.

Memorial on behalf of the Defence

 6

ISSUES RAISED

[ISSUE- 1] WHETHER THE ACCUSED PERSONS ARE LIABLE OF

COMMITTING DOWRY DEATH U/S 304-B, AND CAUSING CRUELTY
U/S 498-A AND SECTION 4, OF THE DOWRY PROHIBITION ACT?

[ISSUE- 2] WHETHER THE ACCUSED PERSONS ARE LIABLE OF

COMMITTING MURDER UNDER SEC. 302 OF DPC?

[ISSUE-3] WHETHER THE ACCUSED PERSONS ARE LIABLE TO

DEFEND THEMSELVES AS PER THE GROUNDS OF
‘ÇIRCUMSTANTIAL EVIDENCE’ AND ‘BEYOND REASONABLE
DOUBT’?

Memorial on behalf of the Defence

 7

SUMMARY OF ARGUMENTS

[ISSUE- 1] WHETHER THE ACCUSED PERSONS ARE LIABLE OF COMMITTING

DOWRY DEATH U/S 304-B, AND CAUSING CRUELTY U/S 498-A AND SECTION 4,
OF THE DOWRY PROHIBITION ACT?
It is humbly submitted that Mr. Sanjeev, Mrs. Meena and Mr. Chandran (hereinafter referred
to as “Accused Persons”) are not guilty of committing Dowry Death u/s 304-B, DPC and
causing cruelty or harassment to the deceased u/s 498-A, DPC.

[ISSUE- 2] WHETHER THE ACCUSED PERSONS ARE LIABLE OF COMMITTING

MURDER UNDER SEC. 302 OF DPC?

It is most humbly contended before this Hon’ble Court that the accused(s) are not guilty for
committing the offence of murder under Sec. 302 r/w Sec. 300 of DPC. The respondents
humbly contend that actus reus and mens rea are two basic essential elements of any crime and
are not established in the instant matter by the prosecution, and to prove the charge under Sec.
300, actus reus [A] and mens rea [B], needs to be established, which is a sine qua non of
conviction of an accused.

[ISSUE-3] WHETHER THE ACCUSED PERSONS ARE LIABLE TO DEFEND

THEMSELVES AS PER THE GROUNDS OF ‘ÇIRCUMSTANTIAL EVIDENCE’
AND ‘BEYOND REASONABLE DOUBT’?

It is most humbly submitted that the Accused Persons are liable to defend themselves as per
the grounds of Circumstantial evidence and beyond reasonable doubt.

Memorial on behalf of the Defence

 8

ARGUMENTS ADVANCED

[ISSUE- 1] WHETHER THE ACCUSED PERSONS ARE LIABLE OF COMMITTING

DOWRY DEATH U/S 304-B, AND CAUSING CRUELTY U/S 498-A AND SECTION 4,
OF THE DOWRY PROHIBITION ACT?
It is humbly submitted that Mr. Sanjeev, Mrs. Meena and Mr. Chandran (hereinafter referred
to as “Accused Persons”) are not guilty of committing Dowry Death u/s 304-B1, DPC and
causing cruelty or harassment to the deceased u/s 498-A2, DPC.

1.1.That the Accused Persons are not guilty of Dowry Death u/s 304-B, DPC.
It is most humbly submitted that the Accused Persons are not guilty of Dowry Death of the
deceased wife, Alya u/s 304-B, DPC. Section 304-B provides that where the death of a woman
is caused by any burned or bodily injury or occurs otherwise than under normal circumstances
within seven years of marriage and it is shown that soon before the death of the woman she
was subjected to cruelty and harassment by her husband or his relatives for or in connection
with any demand for dowry, such death shall be called ‘dowry death’ and the husband or
relatives shall be deemed to be have caused the death. The main ingredients3 for establishing
the charge are:

i) That the death of the woman was caused by any burns or bodily injury or in some
circumstances which were not normal;
ii) Such death occurs within 7 years from the date of her marriage;
iii) That the victim was subjected to cruelty or harassment by her husband or any relative
of the husband
iv) Such cruelty or harassment should be in connection with the demand of dowry
v) It is established that such cruelty and harassment as made soon before her death.4

In the instant case, the main ingredients essential to establish the charge are not being
satisfied and no crime can be proved under the ambit of Sec. 304-B, DPC. The only
ingredient that can be satisfied is the death of the deceased within 7 years of marriage.

1
Dowry Death, Sec. 304-B, DPC 1860
2
Husband or Relative of husband of a woman subjecting her to cruelty, Sec. 498-A, DPC 1860
3
Volume 2, Ratanlal Dhirajlal, Law of Crimes-A commentary on Dravidian Penal Code, 1860 (27th Edition,
Bharat Law House, New Delhi, 2013)
4
Harjit Singh v. State of Punjab, 2006 (1) SCC 463; Ram Badan Sharma v. State of Bihar, 2006 (10) SCC 115

Memorial on behalf of the Defence

 9

However, the death was not under any abnormal circumstances, rather the deceased was in
depression and mentally stressed as a result of which she died. The deceased’s mother has
alleged that the Accused Persons shall be held liable for subjecting the deceased to cruelty or
harassment or this cruelty of harassment was in connection with demand.

Nothing as stated by the mother shall stand true. It has been alleged that the Accused Persons
had been subjecting the deceased to cruelty in the form of starvation and harassment by asking
her for dowry.

In the present case, there has been an alleged case of starvation, however, it is pertinent to note
that the Post Mortem Report does not mention the weight of the deceased and the rice bowl in
which food was allegedly given to her was not seized by the police. This makes it evident that
there existed discrepancies in the statements of the witnesses.

In Shanti v. State of Haryana5, it was held that mere demand of dowry without any proof or
cruelty or harassment would not render the accused guilty u/s 304-B and he would be entitled
to acquittal.6

1.2 That the Accused Persons are not guilty of Cruelty or harassment charged u/s 498A,
DPC.
It is humbly submitted that the Accused Persons are not guilty of cruelty or harassment charged
u/s 498A, DPC. As per the explanation (b) of Sec. 498-A, ‘cruelty’ has been defined where a
woman is harassed with a view to causing her to meet any unlawful demands for any property
or valuable security, etc. Therefore, in order to come into the ambit of cruelty by husband, the
harassment must be in furtherance to extract money unlawfully from the woman by a man.
Unless these two ingredients are satisfied, no offence under Sec. 498-A can be alleged to have
been committed.7 It is pertinent to note that evidence on record at the most raises suspicion
against the accused, the suspicion however strong cannot take place of legal proof.8

Further, it is humbly submitted that the Accused Persons shall not be liable for any harassment
caused for demanding dowry. The Bank Transaction Details of the Mr. Sanjeev, the deceased

5
AIR 1991 SC 1226
6
State v. Yog Raj, 1997 CrLJ 2033 (HP)
7
Daud Mohammad Aga v. State, 1995 CrLJ 2997 (Bom)
8
Volume 4, S.C. Sarkar, Commentary on the Dravidian Penal code, 1860 (3rd Edition, Dwivedi Law Agency,
2013)

Memorial on behalf of the Defence

 10

person’s husband, shows the transfer Credit of Rs. 1,00,000 from the deceased’s mother, but
in his witness statement (DW-1) before the court u/s 161 CrPC, he has clearly stated that the
money was borrowed from her during a financial crisis and was later repaid.

In the case of Vipin Jaiswal v. State9, it was held that the demand of Rs. 50,000/- by the
appellant from the family of the deceased to purchase a computer to set up his own business
does not amount to demand of dowry. The accused was acquitted from the charge’s u/s 304-B
and 498-A.

Additionally, the Ritual Pictures (Exhibit 5,6, 7) clearly show that the money exchanged was
for ritual purposes and such exchange of money cannot be termed as Dowry.

In a prominent case, the Supreme Court held that the payments which are customary payments,
for example, given at the time of the birth of a child or other ceremonies as are prevalent in the
society or the families would not be covered under the expression dowry.10

Therefore, the Accused Persons cannot be charged u/s 498-A, where the woman if subjected
to cruelty or harassment by husband or relative is subjected to an imprisonment for a term
which may extend to 3 years and shall also be liable to fine.11 As per sub-section (a), a
reasonable accusation has to be established between the cruelty and the suicide or order to
make good the offence of cruelty. The sub-section (b) provides that mere harassment is not in
itself cruelty, mere demand for property is not cruelty. It is only where harassment shown to
have been committed for the purpose of coercing a woman to meet the demand that is cruelty
and this is made punishable under this section.

1.2.1. The Accused Persons cannot be held liable u/s 4, Dowry Prohibition Act, 1961.
The counsel for defence, humbly submits that there has never been any ‘demand of dowry’
raised. In the case of Appasaheb and Anr. v. State of Maharashtra,12 the Court held that
because the appellants' demands for money were motivated by ‘financial stringency’ and the
need to meet ‘some urgent domestic expenses’, their demands could not be termed ‘demands

9
(2013) 3 SCC 684
10
Ram Singh v. State of Haryana, (2008) 4 SCC 70
11
Volume 4, S.C. Sarkar, Commentary on the Dravidian Penal code, 1860 (3rd Edition, Dwivedi Law Agency,
2013)
12
(2007) 9 SCC 721

Memorial on behalf of the Defence

 11

for dowry’ as rightly held by the Hon’ble court also in the cases of Union of India v. Garware
Nylons Ltd.,13 and Chemicals and Fibres of India v. Union of India14

In the instant the prosecution has failed to provide any evidence to support their claim, that the
accused persons demanded dowry. As laid down in the case of State of UP v. Mahesh Chandra
Pandey15, the Hon’ble Supreme Court held that the accused cannot be convicted under the
section unless there is a reliable evidence regarding the demand of dowry.

In the instant matter, the facts state that, by seeing the condition of Alya, the neighbours helped
Sanjeev to admit his wife in the hospital.16 According to the statement under Sec. 161 of CrPC,
DW-1 stated as follows: “I remember once we had financial crisis and as a support my Alya
approached her mother for help. I was thankful to my mother-in law for her timely help and
later I repaid the same.”17

In the light of the aforementioned facts, statutes cited and the statement of witnesses it can be
established that the demand for money did not constitute the demand for dowry as the money
was sought to meet the financial crisis of the accused family and the same was repaid back to
the deceased’s mother.

It is pertinent to note that one of the essential elements of Sec. 498A is the demand for dowry
and the cruelty or harassment to which the women has been subjected is vitally to be in
furtherance of the demand of dowry under Sec. 4 of the Dowry Prohibition Act, 1961.

Since, in the instant matter the prosecution has failed to substantiate the culpability of the
accused with corroborative evidences under Sec. 4 of the Dowry Prohibition Act, 1961, the
counsel for the defence humbly pleads before this Hon’ble Court that the Court may acquit the
accused of the aforementioned charges.

1.3 That Presumption of Dowry death u/s 113-B, DEA, holds no ground.
The provisions of the presumption u/s 113-B, DEA provides that when a married woman had
been subjected to cruelty or harassment for or in connection with any demand for dowry before
her death, the court shall presume that such person had caused the dowry death. This

13
AIR (1996) SC 3509
14
AIR (1997) SC 558
15
AIR 2000 SC 3631
16
Facts of the case, Para 2, Line 3.
17
Statement of Witness, Sec. 161 of CrPC, 1973

Memorial on behalf of the Defence

 12

presumption shall however be raised only if the main ingredients of Sec. 304-B, DPC have
been satisfied. In the instant case, the main ingredients of being an abnormal death, or
subjecting the deceased to any cruelty or harassment have not been fulfilled.

Section 304-B has a proximate nexus with Section 113-B18 of the Dravidian Evidence Act
1872. In a case where a wife dies within 7 years of marriage by burn injuries, but no iota of
evidence is there to show that the deceased wife was pestered for dowry, no presumption under
Section 113-B, Evidence Act is available, dowry death is not proved.19

Further, the last ingredient to prove the guilt of the alleged Accused Persons is to establish that
the cruelty to the deceased was soon before her death. One of the main ingredients of the
offence u/s 304-B required is that ‘soon before death’ she was subjected to cruelty and
harassment ‘in connection with the demand for dowry’. The expression ‘soon before her death’
cannot be given a restricted meaning, these are provisions relating to human behaviour and
therefore cannot be given a narrower meaning.20

In Dinesh v. State of Haryana21, it is stated that the expression ‘soon before’ is a relative term,
which is required to be considered under the specific circumstances of each case and no straight
jacket formula can be laid down by fixing any time of allotment.

In the instant case, the allegation of committing the crime soon before the death of the deceased
stands true. The cruelty of harassment as alleged is the subjection of the deceased to
confinement within the house and starvation where it was alleged that only boiled rice and
sugar water was being fed to her. However, it can be evidently corroborated by the following
statements that no concrete evidence has been recorded which can substantiate that the accused
has actually subjected the victim to cruelty.

i) That Verification of the Observation Mahazar and the Dying Declaration should not be
trusted as the “bowl of soaked rice and packets of sugar” has not been seized by the
investigating authorities as an evidence to be produced before this Hon’ble court.
ii) That No physical torture had been inflicted upon the deceased as the FIR report nowhere
mentions about any physical injury on the body of the deceased

18
Presumption as to dowry death, Sec. 113-B, Dravidian Evidence Act 1872
19
State of Kerala v. Mohonan Pillai, 1991 CrLJ 15 (Ker)
20
Ashok Kumar v. State of Haryana, 2010 (12) SCC 309
21
2014 (5) SC 641

Memorial on behalf of the Defence

 13

iii) That the deceased was neither confined in the house nor was made to starve as she was
freely travelling in the city and buying sweets from the sweet shop, across the street.

The Supreme Court has time and again held that, where the prosecution could not establish that
death was suicidal, accidental or homicidal as evidence could not establish that the deceased was
subject to cruelty and harassment immediately before her death. Ingredients of Sec. 304-B were
lacking and conviction was set aside.22 In another case, the allegation was that the accused husband
and the in-laws of the deceased had harassed her for non-fulfilment of demand for dowry but
charge was not substantiated, conviction was then set aside.23

The rule of law requires a person to be innocent till proved guilty. When Sec. 304-B is read
together with Sec. 113-B, Evidence Act, the case would squarely come under ‘dowry death’ and
there shall be a presumption against the husband and relatives or the Accused Persons. However,
such presumption shall be raised only on proof of the following essentials:

i) The question before the court must be whether the accused has committed the dowry death
of a woman.
ii) The woman was subjected to cruelty or harassment by her husband or his relatives.
iii) Such cruelty or harassment was for, or in connection with any demand for dowry.
iv) Such cruelty or harassment was soon before her death.24

It is pertinent to note that the key-words of Sec. 113-B are ‘shall presume’ leaving no option with
the court but to presume an accused brought before it for causing dowry death guilty of the
offence. However, the redeeming factor of this provision is that it is rebuttable.25 In a Supreme
Court case accused had been charged for committing dowry death but no cogent evidence was
adduced to establish demand for dowry nor was there direct or indirect evidence for harassment
or cruelty. Defense version that the cause of death was not for granting permission to go to her
parents’ house, seemed plausible. It was thus held that conviction for demand of dowry or
harassment was liable to be set aside.26

22
Shantha Kumar v. Dy. Superintendent of Police, 2007 CrLJ (NOC) 356 (Mad)
23
Biswajit Halder alias Babu Halder v. State, 2008 (1) SCC 202; Kanhai Dhibar v. State, 2007 CrLJ (NOC) 296
(Jhar)
24
M. Srinivasulu v. State of AP, 2007 (12) SCC 443; Kulwant Singh v. State of Punjab, (2013) 4 SCC 177;
Tarsem Singh v. State of Punjab, (2008) 16 SCC 155
25
Volume 2, S. C Sarkar, Law of Evidence (18th Edition, Lexis Nexis, 2014)
26
T. Aruntperunjothi v. State, AIR 2006 SC 2475

Memorial on behalf of the Defence

 14

Therefore, in the light of the aforementioned contentions, it is most humbly submitted that the
Accused Persons are not guilty of committing Dowry Death u/s 304-B, DPC and causing cruelty
or harassment to the deceased u/s 498-A, DPC in furtherance of Sec. 4, Dowry Prohibition Act,
1961.

[ISSUE- 2] WHETHER THE ACCUSED PERSONS ARE LIABLE OF COMMITTING

MURDER UNDER SEC. 302 OF DPC?
It is most humbly contended before this Hon’ble Court that the accused(s) are not guilty for
committing the offence of murder under Sec. 302 r/w Sec. 300 of DPC. The respondents humbly
contend that actus reus and mens rea are two basic essential elements of any crime and are not
established in the instant matter by the prosecution, and to prove the charge under Sec. 300, actus
reus [A] and mens rea [B], needs to be established, which is a sine qua non of conviction of an
accused.

It is humbly submitted before this Hon’ble Court that the Hon’ble Supreme Court in the case of
Jasvinder Saini & Ors. v. Government of NCT of Delhi27 has adjudged that the true purport of the
order passed by the SC in the case of Rajbir v. State of Haryana28 directing an addition of charge
of Sec. 302 of DPC, 1860 to every case wherein the accused are charged with Sec. 304-B, was
that the direction in Rajbir case29 was not meant to be followed mechanically and without due
regard to the nature of the evidence available in the case. The Hon’ble SC further stated that where
a charge alleging dowry death is framed, a charge under Sec. 302 can also be framed if the
evidence otherwise permits.

In the instant matter the evidence available, fails to substantiate the guilt of Mr. Sanjeev
(hereinafter referred to as A1), Mrs. Meena (hereinafter referred to as A2), Mr. Chandran
(hereinafter referred to as A3) for the offence of murder under Sec. 300 of DPC, 1860. Therefore,
it shall be considered as a false allegation against the accused.

2.1. Actus Reus of Murder not established

Actus reus is any wrongful act.30 In any case of murder, actus reus would be the physical
conduct of the accused31 that causes death of the victim. It is most humbly submitted before
this Honourable court that the accused are guilty for committing the offence of murder under

27
AIR 2014 SC 841
28
AIR 2011 SC 568
29
Ibid
30
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd Ed. 2006)
31
Dunham Beth Walston, Introduction to Law, 7th Ed. ,2012

Memorial on behalf of the Defence

 15

Sec 302, DPC. Sec 302 prescribes the punishment for committing murder. In order to bring a
successful conviction under this charge, however, it is pertinent to refer to Sec 300, DPC which
elucidates the essentials of murder.

Sec. 300 of DPC states that- 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, or—

(Secondly) —If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid. In the instant matter actus reus is not established by way of witness statements, Post
Mortem Report, Dying Declaration and the conduct of the accused.

2.1.1 Post Mortem Report

It is most humbly submitted before this Honourable Court that the PMR report has nothing to
show that accused had committed the crime. In the present case, it is pertinent to note that the
Post Mortem Report states that external bruises which is contradictory to the FIR.

DW-5 has stated in his statement “Recently, last week Alya along with her daughter Sana
visited my shop for buying sweets” In the store bill (herein exhibited in ‘Exhibit-12’) the date
of transaction is mentioned as 24.06.2019 and the date on which the deceased has died as
mentioned in the death certificate (herein annexed as ‘Annexure -5’) is 08.07.2019. Therefore,
it is important to note that the deceased died after 2 weeks from the day when she was spotted
at the sweet shop. However, A substantial medical study32 estimates that in adults complete
starvation leads to death within 8-12 weeks. Therefore, it is highly unlikely that the cause of
death of the deceased is starvation as mentioned in the Post Mortem Report.

PW-4 has stated in her statement “ I concluded the post mortem by 5:00 p.m. .” Wherein in the
Post Mortem Report it has been evidently mentioned “Post Mortem concluded at 3:00 p.m.”

Dr. Kanisha (herein referred as PW-4) has stated in her statement “3*4 cm deep bruises noted
in left cheek and 4*4 cm bruises noted on left clavicle.” and the same has been mentioned in

32
University of Missouri Press. P. 112. ISBN 978-0826272577.

Memorial on behalf of the Defence

 16

the Post Mortem Report (herein Annexed as Annexure – 4.Wherein in the First Information
Report (herein Annexed as Annexure-1) it has been evidently mentioned that “No external
injuries found on the body of the victim”.

2.1.2 Dying Declaration

The counsel for the defense humbly submits before this Hon’ble Court that in the landmark
judgements of Kushal Rao v. State of Bombay33, Kalwati v. State of Rajasthan34 & P.V.
Radhakrishnan v. State of Karnataka35 the Hon’ble Supreme Court has stated that “The dying
declaration stands on the same footing as any other piece of evidence and has to be judged in
the light of surrounding circumstances and with reference to the principles governing the
weight to be attached to the evidence.”

In the present case it can be evidently observed through the following sub-points that the
surrounding circumstances fails to corroborate with the statement given by the deceased in the
dying declaration :

 Deceased in her dying declaration stated “I was physically abused.” Whereas in the
F.I.R (herein annexed as ‘Annexure -1’) it is evidently mentioned that no external
injuries have been found on the body of the accused. Moreover, it can be observed that
Mrs. Geetha (herein referred as ‘PW-1’) & Mrs. Mano (herein referred as ‘PW-3’) have
mentioned in their statement that the diseased was tortured and was once forcibly sent
back home once on demand for dowry but neither of them took it critically and
complained about the same in the police station. PW-3 stated in her statement “Being a
psychologist, “I know the exact mental trauma that Alya has undergone. I can say that
this was the rarest case that I have ever witnessed” yet PW-3 did not tried to help the
deceased in the first instance, which in itself is a proof that the entire story made by the
prosecution is imaginary and could not be proved beyond reasonable doubt.
In the case of State of Assam v. Bhelu Shekh36 it was held by the Hon’ble Supreme Court that
“Where there was no clear and cogent evidence to show that the accused had caused the
injuries to the deceased and the injuries on the person of the accused were not explained , it
was held that the acquittal of the accused was proper.” In the present case the F.I.R clearly

33
AIR 1958 SC
34
1994 CrLJ 691
35
AIR 2003 SC 2859 (para 13)
36
AIR 1989 SC 1097

Memorial on behalf of the Defence

 17

signifies that there were no external injuries on the body of the accused and the injuries were
noticed after the body of the deceased was sent for the post mortem report. Thus, the accused
cannot be held liable for the injuries caused to the deceased.

The deceased in her dying declaration has mentioned that she was “made to starve by giving
only soaked rice and sugared water” however the investigation authorities have failed to
confiscate the bowl of soaked rice and sugared water as observed in the Observation Mahazar
(herein annexed as Annexure -6) as evidently declared in the Final Report (herein Annexed as
Annexure -8).
The council for the defense humbly submits that in the case of P. Mani v. State of T.N37 &
Ranjit Singh v. State of Punjab38 “Conviction can be recorded on the basis of dying declaration
alone but the same must be wholly reliable. In a case where suspicion can be raised as regards
the correctness of the dying declaration , the court before convicting an accused on the basis
thereof would look for some corroborative evidence. If the dying declaration does not reveal
the entire truth, it may be considered only as a piece of evidence in which event conviction
cannot be rested on the basis thereof.” In the present case the dying declaration should not be
considered to be wholly reliable as there exists several differences and loopholes in the same
and also in the corroborative evidences that are being presented by the council for the defense
therefore the accused persons should not be held liable on the basis of the evidences that has
an element of doubt present in it.

The deceased in her dying declaration stated the reason for the torture “I was not able to bring
the money they ( Accused 1, 2 & 3) wanted.” However the council for the prosecution has
failed to prove the same in the court of law as there are many discrepancies in the witness
statement of Mrs. Geetha (herein referred to as ‘PW-1’) and Mrs. Mano (herein referred as
‘PW-3’) & Dr. Kanisha (herein referred as PW- 4) [refer to Issue 2 ,clause B, C, E, H]
respectively.
Moreover , PW-3 has mentioned in her statement “Alya was forcibly pushed out of her house
on demand for dowry which was witnessed by whole Mandi street” however, the council for
the prosecution has failed to produce any witnesses from the mandi street that could verify her
statement.

37
AIR 2006 SC 1319
38
Punjab (2006) 13 SCC 130,134 (para 13)

Memorial on behalf of the Defence

 18

Lastly, Mr. Sanjeev (herein referred as ‘DW-1’) has accepted in his statement “I remember
once we had financial crises and as a support Alya approached her mother for help. I was
thankful to my mother -in- law for her timely help and later I repaid the same.” Which clearly
specifies that DW-1 never demanded any dowry but asked for help from his mother-in-law
(herein referred as ‘PW-1’) and later he repaid the same.
The counsel for the defence humbly submits that in the case of Purnachandra Singh v. State of
Orissa39 it was held that by the Hon’ble Court that “where there are suspicious circumstances
and infirmities in the evidence, with regard to the dying declaration, it cannot be accepted for
the purpose of conviction.” Moreover, in the case of Rasheed Beg v. State of M.P40 “Where
dying declaration is suspicious it should not be acted upon without corroborative evidence.”
In the present case there exists several suspicious circumstances which clearly points out the
infirmities in the evidence produced by the prosecution with respect to the dying declaration
there it should not be accepted for the conviction of the accused persons.

It is submitted that in the case of K. Ramachandra Reddy v. Public Prosecutor41 it was held by
the Hon’ble Court that “The court has to scrutinize the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify the assailants and was in a fit state to
make declaration.” The council humbly submits that the present case appears to be the case of
imagination by the deceased while giving the declaration as the content of the declaration has
many loopholes present in it and there exist a lot of discrepancies in the witness statements also
the corroborative evidences are proven to be fallacious and deceptive. Therefore, punishing the
accused on the basis of such bushed up circumstances is not justifiable.

2.2. Mens Rea and Conduct of the Accused

According to the penal provisions, mens rea is inbuilt in the statute42. Mens rea is considered
as guilty intention.43 It is most humbly submitted before this Hon’ble court that the conduct44
of the accused clearly shows that he had not committed the crime. In the present case, the
accused had accompanied the victim to the hospital.45

39
1985 CrLJ 248
40
(1974) 4 SCC 264
41
(1976) 3 SCC 618
42
Ram Khelawan v. State of Madhya Pradesh, 2014 SCC Online Chh 29
43
State of Tamil Nadu v. C.A Akhtar & Co., MANU/TN/0637/1997
44
Sec. 8 of the DEA, 1872
45
Facts of the case, para 2, line 2

Memorial on behalf of the Defence

 19

Where a man intentionally kills another, he must inflict such body injury sufficient in the
ordinary course of nature that his act results in immediate death.46 In the present case the
presumption of section 113A DEA, 1872 does not arise for conviction under section 306
because the basic ingredient i.e. mens rea is not proved.

It is pertinent to note that the deceased in the instant case has not been subjected to such bodily
harm which resulted in her immediate death, as the facts of the matter evidently state that the
deceased died after giving the dying declaration in the hospital and was not an immediate death.
Therefore, in the light of the aforementioned statements, the counsel for defence humbly pleads
before this Hon’ble Court that the accused persons be acquitted of charges under Sec. 302.

[ISSUE-3] WHETHER THE ACCUSED PERSONS ARE LIABLE TO DEFEND

THEMSELVES AS PER THE GROUNDS OF ‘ÇIRCUMSTANTIAL EVIDENCE’
AND ‘BEYOND REASONABLE DOUBT’?

It is most humbly submitted that the Accused Persons are liable to defend themselves as per the grounds

of Circumstantial Evidence and Beyond Reasonable Doubt.

3.1 The Circumstantial Evidence fails to substantiate the guilt of Mr. Sanjeev (hereinafter
referred to as ‘A1’), Mrs. Meena (hereinafter referred to as ‘A2’) & Mr. Chandran
(hereinafter referred to as ‘A3’) and the investigation conducted is doubtful and
erroneous.
The counsel for the defense humbly submits before this Hon’ble Court that the circumstantial
evidences fails to substantiate the culpability of the Accused and that the investigation
conducted does not establish beyond a reasonable doubt that the Accused persons are guilty of
Dowry death u/s 304 B Dravidian Penal Code, 1860 as Discrepancies in the Statement of the
witnesses [A] The conclusion made in the Post Mortem Report(herein annexed in ‘Annexure-
4’) is highly irrational [B] Witness statement delivered by Mrs. Mano (herein referred as
‘PW3’) is in contradiction with the observations made under the F.I.R Report (herein Annexed
as Annexure-1”) [C] Witness statement of Dr. Kanisha (herein referred as ‘PW-4’) is in
contradiction with the Post Mortem Report (herein Annexed as Annexure – 4) [D] List of
observations made in Mahazar are not seized by the investigation authorities.[E] FIR report
(hereinafter Annexed as ‘Annexure-1’) is in contradiction with the Post Mortem Report

46
Himanchal & Anr. v. State of UP, SC on 18th August, 201

Memorial on behalf of the Defence

 20

(hereinafter Annexed as ‘Annexure-4’) [F] Medical Fitness Certificate (herein Annexed as

Annexure -3) issued by

Dr. Kanisha (herein referred to as ‘PW-4’) should not be relied upon. [G] Statement presented
by Mr. Shayam (herein referred to as ‘DW-5’) is in contradiction with the Statement of Mrs.
Geetha (herein referred to as PW-1) [H] Mrs. Geetha (herein referred to as PW-1) is rendering
a false evidence which is in itself an offence under Section 194 DPC, 1860.

3.1.1. Discrepancies in the Statement of the witnesses

The counsel for the defence humbly submits that there exist substantial discrepancies in the
statement of the Prosecution witnesses as the entire case is based on the testimonies delivered.

A] The conclusion made in the Post Mortem Report (herein annexed in ‘Annexure-4’) is
highly irrational.

DW-5 has stated in his statement “Recently, last week Alya along with her daughter Sana
visited my shop for buying sweets” In the store bill (herein exhibited in ‘Exhibit-12’) the date
of transaction is mentioned as 24.06.2019 and the date on which the deceased has died as
mentioned in the death certificate (herein annexed as ‘Annexure -5’) is 08.07.2019. Therefore,
it is important to note that the deceased died after 2 weeks from the day when she was spotted
at the sweet shop. However, A substantial medical study47 estimates that in adults complete
starvation leads to death within 8-12 weeks. Therefore, it is highly unlikely that the cause of
death of the deceased is starvation as mentioned in the Post Mortem Report.

B] Witness statement delivered by Mrs. Mano (herein referred as ‘PW3’) is in

contradiction with the observations made under the F.I.R Report (herein Annexed as
Annexure-1”)

PW-3 has stated in her statement “But she was subjected to the continuous torture both
physically and mentally by her in laws”. “.Wherein in the First Information Report (herein
Annexed as Annexure-1”) it has been evidently mentioned that “No external injuries found on
the body of the victim”.

C] Witness statement of Dr. Kanisha (herein referred as ‘PW-4’) is in contradiction with

the Post Mortem Report (herein Annexed as Annexure – 4)

47
University of Missouri Press. P. 112. ISBN 978-0826272577.

Memorial on behalf of the Defence

 21

PW-4 has stated in her statement “ I concluded the post mortem by 5:00 p.m. .” Wherein in the
Post Mortem Report it has been evidently mentioned “ Post Mortem concluded at 3:00 p.m.”

D] List of observations made in Mahazar are not seized by the investigation authorities.

Moreover, in the Observation Mahazar (herein referred as “Annexure-6”) it has been visibly
mentioned that “ At Sanjeev Villa, “we saw an isolated room. In that isolated room we observed
bowl of soaked rice and packets of sugar”. Wherein in the Final Report (herein Annexed as
Annexure-8) in clause no. 10, it has been evidently mentioned under the headline “ Details of
Properties/ Articles/ Documents seized- N/A”.

E] FIR report (hereinafter Annexed as ‘Annexure-1’) is in contradiction with the Post

Mortem Report (hereinafter Annexed as ‘Annexure-4’)

Dr. Kanisha (herein referred as PW-4) has stated in her statement “3*4 cm deep bruises noted
in left cheek and 4*4 cm bruises noted on left clavicle.” and the same has been mentioned in
the Post Mortem Report (herein Annexed as Annexure – 4.Wherein in the First Information
Report (herein Annexed as Annexure-1) it has been evidently mentioned that “No external
injuries found on the body of the victim”.

F] Medical Fitness Certificate (herein Annexed as Annexure -3) issued by

Dr. Kanisha (herein referred to as ‘PW-4’) should not be relied upon.

PW-4 stated in her witness statement “I concluded the post mortem by 5:00 p.m.” whereas in
the Post Mortem Report the PW-4 stated “Post Mortem concluded at 3:00 p.m. Moreover, PW-
4 in the Post Mortem Report stated that there were bruises present on the body of the deceased
which is in itself contradicting the F.I.R (mentioned in clause ‘C’) . Lastly, in the Post Mortem
Report it is mentioned “The deceased would appear to have died of starvation which causes
circulatory failure due to brown atrophy of the heart” whereas the weight of the deceased in
nowhere mentioned in The Post Mortem Report. Therefore, it can be evidently observed
that there are lots of discrepancies in the witness statement of PW-4 as well in the Post Mortem
Report. Therefore, the Mental Certificate prepared by PW- 4 should not be considered to be
completely reliable.

G] Statement presented by Mr. Shayam (herein referred to as ‘DW-5’) is in contradiction

with the Statement of Mrs. Geetha (herein referred to as PW-1)

Memorial on behalf of the Defence

 22

PW-1 has stated in her witness statement “Subsequently I tried to visit my daughter but my son-
in-law did not allow me to meet my daughter. Nevertheless, I frequently visited her place and
waited for hours but in vain”

Whereas DW-5 has evidently mentioned in her statement “ Recently, last week Alya along with
her daughter Sana visited my shop for buying sweet.” Moreover, DW-5 has produced the Store
Bill (herein annexed as ‘Exhibit -12’) which clearly mentioned that the victim purchased sweets
from the shop of DW -5 and DW-5 not once mentioned about the deteriorating condition of the
victim. Therefore, it can be evidently observed that PW-1 is rendering a false statement as the
victim was never confined to the house of the accused and was freely moving outside as well.

H] Mrs. Geetha (herein referred to as PW-1) is rendering a false evidence which is in itself
an offence under Section 194 DPC, 1860

“Section 194 DPC, 1860- Giving or fabricating false evidence with intent to procure conviction
of Capital Offence.”

It has been evidently mentioned in the Final Report48 (herein annexed as Annexure-8) “The
complainant states that any of her calls and messages were not responded by her daughter.”
However, The WhatsApp Chat (herein annexed as ‘Exhibit -1’) can evidently be seen to be
misleading as PW-1 is apparently sending the messages to a person by the name of “maa” and
not her daughter. Moreover, the messages are not even delivered as the chat shows a single tick
mark and no double tick marks have been observed.

Therefore, it can clearly be observed that the evidence that has been submitted by the
prosecution is misleading and fabricated.

3.2 There exists a reasonable doubt about whether the crime under Section 304 B and 498
A of the Dravidian Penal Code has been truly committed by the Accused 1, 2 & 3.
The counsel for the defense humbly submits that the Accused persons should not be held liable
under Section 304 B and 498 A of the Dravidian Penal Code for the reason that there exists a
lot of discrepancies in the statement of the witnesses recorded under Section 161 of the
Criminal Procedure Code, 1973 ; The Post Mortem Report and The First Information Report
and there exists a reasonable doubt about the commission of the crime that has been charged
against the accused persons.

48
Paragraph 1, Line 6

Memorial on behalf of the Defence

 23

It is humbly submitted before this Hon’ble Court that in the landmark judgement of Rajeev
Kumar v. State of Haryana49 & Indrajit Suresh prasad Bind V. State of Gujarat50 it has been
held by the Hon’ble Supreme Court that One of the most essential ingredients of the offence of
dowry death under Section 304 B DPC is that the accused must have subjected a woman to
cruelty in connection with demand of dowry soon before her death and this ingredient has to
be proved by the prosecution beyond all reasonable doubt and only then the Court will presume
that the accused has committed the offence of dowry death under Section 113- B of the
Dravidian Evidence Act”. However it can be evidently corroborated by the following
statements that no concrete evidence have been recorded which can substantiate that the
accused has actually subjected the victim to cruelty.

 [2.1 clause ‘D’]: Verifies that the Observation Mahazar and the Dying declaration
should not be trusted as the “bowl of soaked rice and packets of sugar” has not been
seized by the investigating authorities as an evidence to be produced before this hon’ble
court.
 [2.1 clause ‘E’] : Verifies that no physical torture had been inflicted on the deceased
as the F.I.R report nowhere mentions about any physical injury on the body of the
deceased.
 [2.1 clause ‘G’] :Verifies that the deceased was neither confined in the house of the
accused nor was she made to starve as she was freely travelling in the city and buying
sweets from the sweet shop.
In the case of Gurnam Singh v. State of Punjab51 it has been held that “Where the accused were
charged for harassing the victim for bringing inadequate amount of money but demand for
dowry was not proved and hearsay evidence of the witnesses could not be proved beyond
reasonable doubt. It was held that offence under section 498- A was not made out and accused
was entitled to acquittal.” However in the present case it can been clearly observed that the
witness statement of PW -1 and PW-3 should not be trusted as a lot of discrepancies can be
found in the same (refer to 2.1 clause ‘B’ & clause ‘H’). Moreover, the dying declaration not
trustworthy as it does not comply with the circumstances of the case (refer to 2.1 clause ‘D’ &
2.1 clause ‘E’)

49
AIR 2014 SC227 :2013 (13) SCALE 410

50
2013 (13 SC 569)
51
1998 Cr.Lj 3694 (P & H )

Memorial on behalf of the Defence

 24

In the case of Bishandas v. State of Punjab52 “Even total silence of the accused as to any
defense on his part does not lighten the prosecution burden to prove its case satisfactorily.
“Likewise in the case of State (Delhi Admn.) v. V.C. Shukla53 “In a criminal trial the burden
of proving the guilt of the accused beyond all reasonable doubt always rests on the prosecution
and on its failure it can’t fall back upon evidence adduced by the accused in support of his
defense. The accused was given the benefit of doubt.” Wherein in the present it is clearly
evident that the prosecution has failed to prove the guilt of the accused beyond all the
reasonable doubts. Moreover, there are a lot of differences in the statements of the prosecution
witnesses, the Post Mortem Report and the F.I.R.

In the case of Mustafa Shahadal Shekh v State of Maharashtra54 it has been held that the
prosecution under section 304 b of DPC cannot escape from the burden of proof that the
harassment and cruelty was related to demand for dowry and was caused soon before death.
It is humbly submitted by the counsel for the defense that in the present case there exists no
concrete evidence that any sort of cruelty or harassment has been caused by the Accused
persons on the deceased therefore the present case does not falls under the ambit of Section
304 B of DPC, 1860.

In the case of Gedu Alies Parameshwar Patra v. State of Orissa55 it has been held that,” It is a
well settled principle that the court must satisfy itself that various circumstanced in the chain
of evidence should be established clearly and the completed chain must be such as to rule out
a reasonable likelihood of the innocence of the accused.” Moreover, in the case of Vadlokonda
Lenin V State of A.P56 it was held by the Supreme Court held that “circumstances on which
prosecution relies must be proved beyond all reasonable doubt and such circumstances must
be capable of giving rise to an inference which is inconsistent with any other hypothesis except
the guilt of the accused it is only in such an event that conviction of accused on basis of
circumstantial evidence bought by prosecution would be permissible in law.”

52
AIR 1975 SC 1382
53
AIR 1980 SC 1382

54
2012 AIR (SCW)_5308
55
AIR 2000 SC 2473
56
10 2012 XII SCC 260 / para 12

Memorial on behalf of the Defence

 25

The counsel for the defense humbly submits that it can be evidently observed that the
prosecution has failed to form a specific and a reliable chain of events that actually proves the
commission of crime by the Accused. Moreover, the statement of the prosecution witnesses
are not trustworthy as well. Therefore, holding the accused persons liable on account of such
bushed up evidences which in itself are incompetent to be proven beyond the doubts would be
unjust and unreasonable.

Therefore, in the light of the aforementioned contentions, it is humbly submitted before the
Hon’ble court that the Accused Persons are liable to defend themselves as per the grounds of
Circumstantial Evidence and Beyond Reasonable Doubt in order to prove themselves not guilty.

Memorial on behalf of the Defence

 26

PRAYER

WHEREFORE, in the light of facts used, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed that this Hon'ble court may be pleased to
adjudge and declare that:

1. The Accused Persons are not guilty of committing Dowry Death u/s 304-B, DPC and causing
cruelty or harassment to the deceased u/s 498-A, DPC and Sec. 4 Dowry Prohibition Act, 1961.

2. The Accused are not guilty for committing the offence of murder under Sec. 302 r/w Sec.
300 of DPC.

3. The Accused Persons are liable to defend themselves as per the grounds of Circumstantial
evidence and beyond reasonable doubt.

4. The Accused Persons shall be handed over the custody of the daughter of the deceased.

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.

Date:
_________________S\d/-
COUNSEL FOR THE
DEFENCE

Memorial on behalf of the Defence