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ARMY INSTITUTE OF LAW, CLASS MOOT-1

ROLL NO. 1445

BEFORE THE HONOURABLE SESSIONS COURT, CHANDIGARH

S.C. NO. 111 OF 2019

IN THE CASE OF:

STATE OF PUNJAB

(PROSECUTION)

V.

HARI

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 304B R/W SECTION 201 OF THE INDIAN PENAL CODE, 1860

WRITTEN MEMORANDUM FILED ON BEHALF OF THE DEFENCE


ARMY INSTITUTE OF LAW, CLASS MOOT-1

TABLE OF CONTENTS

Table of Contents………………………………………………………………………..........2

List of Abbreviations………………………………………………………………………...3

Index of Authorities………………………………………………………………………….4

 Statutes and Rules


 Table of Cases
 Legal Database

Statement of Jurisdiction…………………………………………………………….….......6

Statement of Facts……………………………………………………………………..……..7

Statement of Issues…………………………………………………………………………..7

Issue 1: Whether or not the Accused can be prosecuted under § 304B of the IPC?
Issue 2: Whether or not the Accused can be made liable under section 34 for possessing
common intention in committing the act?

Summary of Arguments…………………………………………………………………….8

Arguments Advanced…………………………………………………………………….9-18

Contention 1: That the accused cannot be convicted under § 304B of the IPC…..9

1.1 That there was no demand for dowry


1.2 That there was no cruelty on the deceased
1.3 That the dying declaration cannot be made basis for conviction

Contention 2: That the accused cannot be convicted under § 201 of the IPC……………15

2.1 that the burden of proof is on the prosecution

2.2 need of proof beyond reasonable doubt

2.3 Intention is different from mere likely-hood

Prayer………………………………………………………………………………………..19

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LIST OF ABBREVIATIONS

IPC Indian Penal Code


CrPC Code Of Criminal Procedure
AIR All India Reporter
Ed. Edition
All Allahabad High Court
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
v. Versus
§ Section
Pg. Page No.
Cr.LJ Criminal Law Journal
Del Delhi High Court
P.C. Privy Council
Bom. Bombay High Court
Raj Rajasthan High Court
Gau Guwahati high court
Hon’ble Honorable
Vol Volume
Anr. Another
Ors. Others
¶ Paragraph

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INDEX OF AUTHORITIES

STATUTES AND RULES REFERRED:

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)


2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)

BOOKS:

1. Ratan Lal Dhiraj Lal, The Indian Penal Code, (32nd Ed.)

2. Surendra Malik and Sudeep Malik, Supreme Court On Penal Code

3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4. Gaur, HR, The Indian Penal Code, (11th Ed.)

5. Ram Jethmalani, The Indian Penal Code, Thomson Reuters, Vol. 1, 1st Ed., 2014

CASES REFERRED:

 Anil Kumar Bose v. State of Bihar, A.I.R. 1974 SC 1560


 Boya Munigadu v. The Queen (ILR 3 MAD 33)

 Brijlalapd Sinha v. State of Bihar (1998) 5 SCC 699


 Chandrakant Murgyappa Umrani & Ors. v. State of Maharashtra AIR 1999 SC 1557
 Garib Singh v. State of Punjab, 1972 Cr LJ 1286
 Ghulam Hyder Inram Baksh v. Emperor, A.I.R. 1938 Sind 63.
 Ghurey v. Rex. A.I.R. 1949 All. 342.
 Gurmail Singh v. State of Punjab, 1982 Cr.L..J 1946.
 Hem Raj v. State (Delhi Administration (1990) Supp. SCC 29
 Jagrup Singh v. State of Haryana A.I.R. 1981 S.C. 1552.
 Jamuna Singh v. State of Bihar AIR 1967 SC 553,(1967)Cr LJ 541 (SC),
 K.M Nanavati v. State of Maharashtra AIR 1962 SC 605
 Kishan Chand v. State of Punjab, A.I.R. 1994 SC 32
 Lailabha Mohobat Singh v. State of Gujrat 1991) 2 Crimes 372 Guj
 Lilla Singh v. Emperor ILR 22 Cal 286
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 Madan Raj Bhandari v. State of Rajasthan AIR 1970 SC 436,(1969) 2 SCC 385
 Madhu Limaye vs The State Of Maharashtra 1978 AIR 47
 Mahbub Shah v. Emperor (1945) 47 BOMLR 941

 Mohd. Aslam v. State of M.P., AIR 1981 SC 1735


 Nagraja v. State of Karnataka (2008) 17 SCC 277
 On Shwe Kalaw v. Emperor, I.L.R. 1 Rang. 436.
 R. DUFFY (1949) 1 ALL ER 932
 Ranjit Singh v. State, 1965 P.L.R. 1175.
 Re C. Narayan (A.I.R. 1958 A.P. 235)
 Sukhbir Singh v. State of Haryana (2002) 3 SCC 327
 Sulaiman v. King, AIR 1941 Rangoon 301
 Suresh and Anr. v. State of U.P (2001) 3 SCC 673
 Surinder Kumar v. UT, Chandigarh [1989]2 SSC 217

ONLINE LEGAL DOMAINS USED:

 Scconline
 Manupatra
 Indiankanoon
 Westlawindia

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STATEMENT OF JURISDICTION

The counsels for Defence, appearing on behalf of the accused, humbly submit to the
jurisdiction of the Hon’ble Court. The Hon’ble Court has jurisdiction to try the instant matter
under §.177 r/w §.209 of the Code of Criminal Procedure, 1973.

Section 177: Ordinary place of inquiry and trial-

‘Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.’

Section 209: Commitment of case to Court of Session when offence is triable exclusively by
it-

When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall-

a) commit the case to the Court of Session;


b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
c) send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

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STATEMENT OF FACTS

Hina was married on 20th February, 2017. Hina would frequently complain, parents of Hari did
not give sufficient dowry on marriage. Hina had on a number of family functions praised
Rohini, a friend of Hari, as more beautiful because of which there were strained relations
between Rohini and Hari.

Hina had a feeling that there were illicit relations between Hari and Rohini. On the date of the
incident she raised shrieks which attracted the attention of her sister-in-law living on the ground
floor in the same property and she found Hina extensively in burnt condition which doctors
opined to be case of 98% burns. There was no kerosene stove in the kitchen, a cane oil with its
lid open was recovered from the room. Hari received 6% burn injuries on his hands, while
saving his wife which doctor opined superficial burns. Hari took two hours to take Hina to the
nearby government hospital Hina died on the next day after expiry of 24 hours but before her
death she made a statement to the I0 that action be taken against Hari and Rohini. On these
basis Hari was arrested.

And now, Hari is facing trial for the offence under § 304B and 201, IPC for having committed
the murder of his wife, by burning her. There are no witnesses to the incident.

He pleads not guilty and claims trial before this Hon’ble Court.

ISSUES RAISED

ISSUE 1: WHETHER OR NOT THE ACCUSED CAN BE PROSECUTED UNDER § 302B OF THE
IPC?

ISSUE 1: WHETHER OR NOT THE ACCUSED CAN BE PROSECUTED UNDER § 201 OF THE IPC?

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SUMMARY OF ARGUMENTS

ISSUE 1: THAT THE ACCUSED CANNOT BE CONVICTED UNDER § 304B OF THE IPC.

It is humbly submitted before this Hon’ble Court that Accused is not guilty u/ s 304B of the
IPC for charges against him of committing dowry death of the deceased. In the present case,
the accused cannot be prosecuted for committing Dowry death as under Section 304B there
was no demand for dowry from the deceased and there was no cruelty on part of the accused
against the deceased.

ISSUE 2 : THAT THE ACCUSED CANNOT BE CONVICTED UNDER § 201 OF THE IPC.

It is humbly submitted before this Hon’ble Court that the accused did not cause disappearance
of evidence under section 201 of IPC, 1860. There was no offence committed in the first place
which forms the most essential ingredient of this section.

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ARGUMENTS ADVANCED

CONTENTION 1: THAT THE ACCUSED CANNOT BE CONVICTED UNDER § 304B OF THE IPC

It is most humbly submitted before this Hon’ble Court that, Hari (hereinafter referred to as the
accused is not guilty of committing dowry death of Hina (hereinafter referred to as deceased)
under section 304B of IPC, 1860.

Section 304B of IPC, 1860 provides for Dowry Death and the accused should not be prosecuted
for the same as it does not meet the essentials of the section. § 304 of Indian Penal Code states
that;

“Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage and it
is shown that soon before her death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with, any demand for
dowry, such death shall be called “dowry death”, and such husband or relative shall
be deemed to have caused her death.”

In Pawan Kumar v. State of Haryana1, the Hon’ble Supreme Court has laid down that the
ingredients necessary to attract Section 304-B IPC are:

 death of a woman is either by burns or by bodily injury or otherwise than under normal
circumstances;
 it should be within seven years of marriage;
 it should also be shown that soon before her death she was subjected to cruelty or
harassment by husband or any relative of husband;
 such harassment or cruelty should pertain to demand for dowry.

1.1. There was no Dowry demand by the accused

According to Sec.-2 of Dowry Prohibition Act, 1961 “Dowry" means any property or valuable
security given or agreed to be given either directly or indirectly--
(a) By one party to a marriage to the other party to the marriage; or

11
AIR 1998 SC 1958

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(b) By the parent of either party to a marriage or by any other person to either party to the
marriage or to any other person, at or before or any time after the marriage in connection with
the marriage of the said parties, but does not include dower or Maher in the case of persons to
whom the Muslim Personal Law (Shariat) applies.2

According to Black's Law Dictionary, term “dowry” can be defined as the property which
a woman brings to her husband in marriage, or the effects which the wife brings to the husband
to support the expenses of marriage.3

In State of UP v Mahesh Chandra Pandey4 Hon’ble Supreme Court held that “the accused
cannot be convicted under the section unless there is reliable evidence regarding demand of
dowry” again it states the same principle as held by Himachal Pradesh High Court.

In Pawan Kumar5 and in Meka Ramaswami v Dasri Mohan6 Hon’ble Supreme Court held
that “there was no proof of any demand. Hence the fact that death took place within 4 months
was not sufficient to convict.” Thus, mere fact that the deceased died after 2 years of marriage
can’t be the reason for conviction of the accused persons.

In the case of Birendar Poddar v State of Bihar7 It was held that-“It is obviously true that
this case rests solely on circumstantial evidence. It is true that in cases where death takes place
within the matrimonial home, it is very difficult to find direct evidence. But for appreciating
circumstantial evidence, the court has to be cautious and find out whether the chain of
circumstances led by the prosecution is complete and the chain must be as complete and
conclusive as to unmistakably point the guilt of accused. It is well settled that if hypothesis or
possibility arises from the evidence which is incompatible with the guilt of accused, in such
case conviction of the accused which is based solely on circumstantial evidence is difficult to
be sustained.”

It is submitted that in the current case, there is nothing in the facts to determine any sort of
dowry demand on the part of the accused or his family, in fact at the time of the marriage,

2
Dowry prohibition Act, 1961, Sec-2.[23].
3
Garner, Black’s Law Dictionary, 8th Edition.
4
AIR 2000 SC 3631
5
AIR 1998 SC 1958
6
AIR 1998 SC 774
7
(2011) 6 SCC 350.
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dowry was given by his family to Hina. Under such circumstances, the death cannot be denoted
as a Dowry Death when there was no existence of Dowry or any demand made for same.

1.2. The deceased was not subjected to cruelty and harassment by her husband, mother-
in-law, and father-in-law for demand of dowry neither after marriage nor soon
before her death.

Cruelty:

The meaning of cruelty for the purpose of section 304B has to be gathered from the language
as found in section 498A, IPC and as per Explanation clause of that section. Cruelty means any
willful conduct which is of such a nature as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life etc., or harassment to coerce her or any other person
related to her meet demand. Cruelty includes both Physical and Mental torture.8

One of the most important essentials of section 304B of IPC, 1860 are cruelty, and demand of
dowry, which are absent in the current case. That, 304B of IPC, 1860 says that “soon before
the death the deceased was subjected to cruelty” but in the absence of any material facts in this
regard the same cannot be assumed.

The Rajasthan High Court in Bajrang v State of Rajasthan9 has held that “cruelty soon before
death for demand for dowry are necessary constituent without which the offence is not
complete.

The Hon’ble Supreme Court in Vidya Devi v State of Haryana10 held that “expression “soon
before” is a relative term it has to be constructed in the context of specific circumstance of
each case no hard and fast rule of a universal application be laid down by prescribing a time
limit” there is no time prescribed time to define the nexus between the death or the cruelty or
harassment. Hence in this case a relative time limit canont be fixed.

8
K. D. Gaur, Text book on Indian Penal Code, Fifth Edition, p558
9
1993 CrLJ 134(Raj)
10
AIR 2004 SC 476
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Medical opinion:

In the case of Mani Ram v. State11, it was held that-“Medical opinion is only an evidence of
opinion and is hardly decisive. It is not substantive evidence.” Further, In the case of Ashok
Kumar Das v. Kalpana Das12, it was held that- “Expert opinion is merely am aid to the court
to arrive at a conclusion. Such an opinion is not binding. It is optional for the court to accept
it or to reject it.”

The Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat 13 observed: -


"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries
could have been caused in the manner alleged and nothing more. The use, which the defense
can make of the medical evidence, is to prove that the injuries could not possibly have been
caused in the manner alleged and thereby discredit the eyewitnesses.”

In the present case, it cannot be conclusively proved that the fire was set up by the husband
and not a mere attempt to suicide by the deceased herself, therefore the medical opinion with
regards to the injuries cannot be taken a base of conviction either.

Burden of proof:

The Hon’ble Supreme Court in Ranjit Singh v State of Punjab14, “basic onus remains on
prosecution and the onus does not change merely because victim is the wife and appellant the
husband and the incident happened in a matrimonial home.

Further, Mustafa Shahadal Shekh v State of Maharashtra15 held that “the prosecution under
section 304B of IPC cannot escape from the burden of proof that the harassment and cruelty
was related to demand for dowry and was caused soon before death” This judgment of
Supreme Court again strengthens the innocence of the accused persons that, they have falsely
been accused by the Prosecution under section 304B of IPC, 1860.

11
AIR 1993 SC 2453.
12
1979 SC 1708
13
(1992) 3 SCC 204.
14
Ranjit Singh v. State of Punjab, (2011) 15 SCC 285

15
2012 AIR (SCW) 5308
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It is humbly stated that the burden of proof is currently not on the Defence, as the same shifts
only after the basic ingredients of Dowry Death are proved by the prosecution, which is not the
present in the current case.

Highlighting the same, the Hon’ble Supreme Court in Satbir Singh v. State of Haryana16
held that “only once the prosecution is able to establish the ingredient of dowry death under
304B Of IPC the burden of proof of innocence shifts of defence”. Therefore, in the present case,
in the absence of valid factual circumstantial evidence to prove the guilt of the accused, no
assumptions in the respects of same can be made to support the case of the prosecution.

In Nand Kishor v State of Maharashtra17 the court referred to Shanti v State of Haryana18
where Hon’ble Supreme Court held that “all ingredients of section 304B of the sections must
exist conjunctively. There must be nexus between cruelty and harassment to raise the
presumption of dowry death under section 113B of Indian Evidence Act.”

Thus, as the prosecution has failed to establish the guilt of accused person under section 304B,
the burden of proving innocence does not shift of the accused persons, by automatic exercise
of section 113B of Indian Evidence Act. And, thus, the accused persons remain innocent. That,
for the aforesaid reasons, the accused persons should not be held guilty under section 304B of
IPC, 1860.

1.3. That the dying declaration made by the deceased cannot be taken as sole base for
conviction

That as far as the statement given by the deceased to the IO is concerned, the same cannot be
take as a valid evidence to establish the guilt of the accused. That, the prosecution wants to
solely convict the accused persons on the dying declaration, which is highly doubtful, Hon’ble
Supreme Court in Paparambaka Rosamma v. State of AP19 held that “where conviction is
solely based upon the dying declaration, there is obligation on the part of the court to consider
with extreme care and caution both the dying declaration and also the evidence of the witness
supporting it”

16
AIR 2005 SC 3546
17
1995 CrLJ 3706 (BOM)
18
AIR 1991 SC 1226
19
AIR 1999 SC 3455
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That, for a dying declaration to be admissible under section 32(1) of Indian Evidence Act,
1872, there should be a medical certificate of a doctor to certify that the person making the
declaration is fit to do so, but here in this case there was no certificate issued by any doctor to
say whether the deceased was fit to make a dying declaration or not. Thus, for this lack of
certificate, which is immensely essential for a declaration to be admissible, the declaration is
not admissible.

Hon’ble Supreme Court in State of Orissa v. Parasuram Naik20 held that “the accused
husband was alleged to have poured petrol on his wife and lit fire. Extensive burn injuries were
caused. The oral dying declaration made to her mother was ruled out from acceptance. There
was absence of certificate showing her to be fit from making the statement. Conviction of the
accused was not held to be proper”.

That, when the deceased had 90% of burns over the body, was she deemed fit to give statement
under conscious mind? Because Hon’ble Supreme Court in Kamalakar Nandram Bavasar v
State of Maharashtra21 held that “there can be no dying declaration because of extensive
burns”

And in Public Prosecutor, HC of AP v. Pothula N Rao22 held that where the dying
declaration was recorded by the investigating officer, though there was no enough time for
being recorded by local judicial officer, it was held that the dying declaration could not be
relied upon”. If it is doubtful in case of police officer, it’s highly doubtful if it has been give
in front of an interested party.

In this case neither medical practitioner nor the eyewitnesses have made any such statement.
So the declaration stands void. And thus this dying declaration cannot be mad soul basis of
conviction, which the prosecution wants. That, for the above mentioned facts, the dying
declaration is too suspicious and should not be accepted in any way. Hon’ble Supreme Court
in Rashid Beg v. State of Madhya Pradesh23 held that “where dying declaration is suspicious
it should not be acted upon corporative evidence”

20
AIR 1997 SC 3569
21
AIR 2004 SC 503
22
1993 CrLJ 2729
23
(1974) 4 SCC 264
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CONTENTION 2: THAT THE ACCUSED CANNOT BE CONVICTED UNDER § 201 OF THE IPC.

It is humbly submitted that the accused is not guilty of causing disappearance of evidence under
section 201 of the Indian Penal Code, 1860 (hereinafter referred to as IPC).

Essential Elements Of Section 201 Are:

 Knowledge or reason to believe that an offence has been committed


 Intention to screen the offender from legal punishment24

The ingredients of section 201 of IPC are;

 That an offence has been committed


 That the accused knew or had the reason to believe the commission of such an offence
 That with such knowledge or belief he :-
a) Caused any evidence of the commission of that offence to disappear or
b) Gave any information relating to that offence which he then knew or believed
to be false
 That he did so aforesaid with the intention of screening the offender from legal
punishment.25

Apart from commission of the offence, it must also be established that the person charged under
S. 201, IPC also had knowledge of the commission of the offence or had information sufficient
to lead him to believe that the offence had been committed.26

The section presents a case of accession after the fact. “An accessory after the fact”, said Lord
Hale, “may be where a person knowing a felony to have been committed, receives, relieves,
comforts or assists the felon”27.

It is humbly submitted before this Hon’ble Court that the accused caused disappearance of
evidence in the instant case. Evidence has been defined under section 3 of the Indian Evidence
Act, 1872.

24
Ratanlal Dhirajlal, Indian Penal Code, 32nd ed, pg964.
25
Palvinder Kaur v. State of Punjab, AIR 1952 SC 354.
26
Hanuman v. State of Rajasthan AIR 1994 SC 1307; Arbind Singh v. State of Bihar AIR 1994 SC
1068, Vijaya v. State of Maharashtra AIR 2003 SC 3787
27
1 Hale P.C. 618
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Section 3 of India Evidence Act, 1872:

‘3. Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry, such statements are called oral evidence;

(2) [all documents including electronic records produced for the inspection of the Court], such
documents are called documentary evidence.28

Having laid down the essential ingredient of section 201, IPC, a Delhi case probed into the
meaning of the word “cause” and held that the word “causes” used in section 201, IPC has not
been defined. According to WEBSTER’S Third New International Dictionary, the word causes
means inter alia to bring existence.29

The true import of the word causes in the collocation of the words “Causes an evidence of the
commission of offence to disappear” fell for consideration in a Gauhati case. It held that the
dictionary meaning of the expression “cause” clearly envisages some active step on the part of
the doer of the act.30

2.1 The Burden Of Proof Rests On The Prosecution

It is a settled principle of criminal jurisprudence that the burden of proving a fact always lies
upon the person who asserts it. Thus, the burden of proving the guilt of the accused rests solely
and31 entirely on the prosecution. Unless such burden is discharged, the other party is not
required to be32 called upon to prove his case.33

The main ingredient of this section is that an offence must have been committed. As has been
contented on behalf of the accused in the first contention that no offence was committed, the
accused cannot be charged under this section.

In Kalawati v. State of Himachal Pradesh it was held that section 201 is not restricted to the
case of a person who screen the offender but also to the person who is guilty of the main

28
Section 3, Indian Evidence Act, 1872
29
Ratalal Dhirajlal, Indian Penal Code, 29th Ed pg 845
30
Sumitra Sherpani, in re 1975 Cr LJ 169 (Gau)
31
Section 101, Indian Evidence Act, 1872
32
P S A Pillai, Criminal Law (edited by K I Vibhute), LexisNexis, 12th Edition, 2016 p. 48, 59
33
Rangammal v. Kuppuswami, AIR 2011 SC 2344
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offence, though as a matter of practice, a court will not convict a person both of the main
offence and under section 201.

2.2 The Prosecution Must Prove The Case Beyond Reasonable Doubt

The prosecution must prove all the elements of the crime ‘beyond reasonable doubt,’ and this
burden on the prosecution never shifts. It is now a well settled principle of law that if two views
34
are possible, one in favour of the accused and the other adversely against it, the view
favouring the accused must be accepted.35

The Supreme Court, in its landmark judgment in the case of Sharad Birdichand Sharda v.
State of Maharashtra laid down the Five Golden Principles (Panchsheel) of the proof of a case
based on circumstantial evidence-

 The circumstances from which the conclusion of guilt is to be drawn should be fully
established.
 The facts so established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on nay other hypothesis except
that the accused is guilty.
 The circumstances should be of a conclusive nature and tendency.
 They should exclude every possible hypothesis except for the one to be proved.
 There must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in
all human probability the act must have been done by the accused.36

2.3 Intention As Distinguished From ‘Mere Likelihood’

In the absence of a ‘clear intention’ to screen the offender, the accused cannot be held guilty
even if his act may be ‘likely’ to screen the offender. The fact that concealment was merely
likely to screen the offender is not sufficient, for Section 201 speaks of ‘intention’ as distinct
from a mere likelihood37. Mere knowledge that the act will have that effect is insufficient. 38

34
KM Nanavati v. State of Maharashtra AIR 1962 SC 605,
35
Raghunath v. State of Haryana AIR 2003 SC 165, Yogesh Singh v. Mahabeer Singh AIR 2016 SC
5160.
36
Sharad Birdichand Sharda v. State of Maharashtra 1984 (4) SCC 116
37
Sir Hari Singh Gour, ‘Dr. Hari Singh Gour’s Penal Law of India: Commentary of the Indian Penal
Code,’ Law 11 Publishers India, 11th Edition, 2009 p. 1822.
38
Per Pearson, J., in Abdul Kadir, ILR 3 All 279 (FB).
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Whenever the Indian Penal Code speaks of likelihood, the phraseology adopted it ‘intending
or knowing it to be likely,’ and hence, the omission of this phraseology under Section 201 is39
relevant in the present matter.40

The Supreme Court has also emphasized that ‘mens rea is an essential element’ under Section
201 and upheld the necessity of an ‘intention to screen the offender’ as an essential element41for
bringing home an offence under this Section.42

In the light of the above facts the accused should be not be charged under section 201 of the
IPC for causing disappearance of evidence. That, for the above mentioned reasoning and facts,
the acquisition of accused persons under section 302B and 201 of IPC, 1860, is too vague, and
so they should be remitted from these charges immediately.

39
Sections 28, 39, 81, 87, 93, 120, 144 (inter alia) of the Indian Penal Code, 1860
40
Poster, Cr. L. 372
41
Arbind Singh v. State of Bihar, AIR 1994 SC 1068
42
Hanuman v. State of Rajasthan, AIR 1994 SC 1307; Kodali Purnachandra Rao v. Public Prosecutor,
AIR 1975 SC 16 1925
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PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is

humbly requested that the Honourable Court may be pleased to adjudge and declare that:

That the accused is not guilty of murder under § 304B of the IPC,

That the accused is not guilty of causing disappearance of evidence under § 201 of

the IPC,

And pass any such order that the Honourable Court deems fit and proper in the interest of

justice.

For this act of kindness, the Counsel for the Defendants, as in duty bound, shall forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_________________________

Sd/-

COUNSEL FOR THE DEFENDANTS

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Memorandum on behalf of Defence