UTKAL UNIVERSITY CODE NO.

VANI VIHAR, BHUBANESWAR,ODISHA (For Office Use)

ROLL NUMBER :90206CT11025

th
NAME OF THE EXAMINATION – 9 Semester
REGD. NO. :
Five Year Integrated B.A.,LL.B., (Hon’s)
DATE :22.12.2015
SUBJECT – MOOT-COURT
SUBJECT :MOOT-COURT
YEAR – 2015
PAPER :x
PAPER – X

DATE –22.12.2015
SIGNATURE OF THE CENTRE SUPERINTENDENT
CODE NO.

(For Office Use)

CLASSIFICATION OF MARKS

SUBJECT FULL MARKS SECURED

MARKS

1. MOOT-COURT MEMORIALS Criminal Case 15

Civil Case 15

TOTAL 30
MARKS
SIGNATURE OF THE EXAMINER:
 IN THE HON’BLE HIGH COURT, ORISSA

Criminal Appeal No. ____________/2012

U/s. 374 (2) of the code of Criminal Procedure

And

In the matter of an appeal filed by the appellants challenging their conviction for

the offence and sentence passed under section 302, IPC passed by the Hon’ble

Sessions Court.

SHANKAR ……………………………………………………………….. APPELLANT

VERSUS

STATE OF ORISSA …………………………………………………. RESPONDENT

Memorial for Appellant

TABLE OF CONTENTS

1 Index of Abbreviations
2 Index of Authorities
3 Statement of Jurisdiction
4 Synopsis of Facts
5 Issues Raised
6 Summary of Arguments
7 Arguments Advanced
8 Prayer

Memorial for Appellant

 INDEX OF ABBREVIATIONS

AIR All India Reporter

Vs Versus
S.C. Supreme Court
U/s Under Section
I.P.C. Indian Penal Code, 1860
Cr. P.C. Criminal Procedure Code, 1973
A.I.C. All India Cases
H.C. High Court
Cr. LJ Criminal Law Journal
A.P. Andhra Pradesh
U.P. Uttar Pradesh
M.P. Madhya Pradesh

INDEX OF AUTHORITIES

INDIAN CASES
Memorial for Appellant
Rishipal Vs. State of Uttarakhand [ 2013 123 AIC 92 SC ]

Nagina Raibanshi Vs. State of Bihar [ 2013 125 AIC 826 ]

Virendra Poddar Vs. State of Bihar [ 2011 (103) AIC 41 S.C. ]

Sharad Bridichand Sarda Vs. State of Maharastra [ AIR (1984) SC 1622 ]

C. Chenga Reddy Vs. State of A.P. [ (1996) 10 SCC 193 ]

Padala Veera Reddy Vs. State of A.P. [ AIR (1990) SC 79 ]

Kusum Ankama Rao Vs. State of A.P. [ AIR (2008) SC 2819 ]

Pandurang Patil Vs. State of Maharastra [ AIR (2004) SC 3562 ]

Santosh Kumar Sahoo Vs. State of Orissa [ 2013 (129) AIC, 580, Orissa ]

Selvi Vs. State of Karnataka [ AIR (2010) SC 1974 ]

Mangilal Vs. State of U.P. [ (1991) Cr LJ 916 ]

BOOKS

1. Indian Penal Code, 4th edition, K.D. Gaur

2. Code of criminal procedure, 5th edition, R.V. Kelkar

3. The Law of Evidence, 20th edition, Batuklal

4. Orissa Criminal Review Journal – 22

5. Universal’s Criminal Manual (New Delhi, Universal Law Publishing Co.,

2012).

6. Ratanlal and Dhirailal, IPC

7. Wills Circumstantial Evidence – Ch >Vi.

Memorial for Appellant

STATUTORY COMPILATIONS

1. Indian Penal Code, 1860

2. The Code of Criminal Procedure, 1973

3. The Indian Evidence Act, 1872

INTERNET SITES

1. Indian Kanoon.com

2. Supreme Courtcaselaw.com

Memorial for Appellant

STATEMENT OF JURISDICTION

The appellant approach the Hon’ble High Court U/s. 374(2) of Criminal

Procedure Code, 1973 appealing his conviction U/s. 302 of Indian Penal Code,

1860.

Memorial for Appellant

SYNOPSIS OF FACTS

1. Lucy, a girl, aged about 17 years left her house on 12.04.2011 at about

5.30 p.m. to their vegetable filed near the village to pick vegetables.

2. But, she did not return that day, her father searched for her and with the

help of some co-villagers found the dead body of his daughter lying with

incised homicidal injuries on her head and neck with bleeding from her

injuries.

3. The body of Lucy was found in the early morning hours of 13.04.2011 and

her father lodged a F.I.R. on 14.04.2011 alleging that his daughter has

been caused to death by ‘Shankar’.

4. ‘Shankar’ is a villager who had previous dispute with Lucy’s father. During

Investigation, Police examined the informant and other co-villagers who

admitted the fact that there was prior dispute between informant and the

accused ‘Shankar’ who had been arrested.

5. The Investigating Officer took the help of the dog squad who after taking a

bamboo stick lying near the dead body of the deceased led the police to

the house of the accused ‘Shankar’.

Memorial for Appellant

6. ‘Shankar’ was also put to a poly-graphic test where his responses to

some of the question put to him were found to be untrue.

7. The postmortem report conducted by the concerned doctor found seven

homicidal injuries and opined that the cause of death was due to

‘asphyxia’ caused by smothering.

8. Rabindra a co-villager was also examined and he stated that on the same

day he had seen ‘Shankar’ smeared with mud coming from his filed.

9. In the course of trial, he turned hostile.

Memorial for Appellant

ISSUES RAISED

1. Whether on the basis of circumstantial evidence in this case the conviction

is proper or not ?

2. Whether there is any criminal intention on the part of the accused to kill the

deceased or not ?

3. Whether the principle of last seen theory is applicable in this case or not ?

4. Whether in this case the medical evidence corroborates any other

circumstantial evidence or not ?

Memorial for Appellant

5. Whether the conviction is proper basing upon the testimony of the sole

witness who turns hostile in the course of trial ?

SUMMARY OF ARGUMENTS

1. Whether on the basis of circumstantial evidence in this case the conviction is

proper or not ?

 Mere circumstantial evidence is not enough for conviction in case of an

offence U/s. 302, IPC.

Memorial for Appellant
2. Whether there is any criminal intention on the part of the accused to kill the

deceased or not ?

 No motive on the part of the accused to commit the offence.

3. Whether the principle of last seen theory is applicable in this case or not ?

 Last seen theory will not be applicable in this case, because both the

accused and victim weren’t seen together during a proximate range of time.

4. Whether poly-graphic test in this case was valid ?

 There is a cloud of doubt over the authenticity of poly-graphic test.

5. Whether in this case the medical evidence corroborates any other

circumstantial evidence or not ?

 The medical evidence has not been corroborated by any oral evidence of

any witness or by any circumstantial evidence.

6. Whether the conviction is proper basing upon the testimony of the sole

witness who turns hostile in the course of trial ?

 There will be miscarriage of justice if convict ion is based on the pillar of

testimony of a sole witness, who turns hostile during trial.

ARGUMENTS ADVANCED
Memorial for Appellant
Whether on the basis of circumstantial evidence in this case the conviction is

proper or not ?

 In this case the court has convicted the accused solely on the basis of

circumstantial evidence. The standard of proof required to convict a

person on circumstantial evidence is now well established by a series of

decisions of Apex Court.

 The conviction is based upon solely on circumstantial evidence. Then, it

must be established that, the chain of evidence furnished by those

circumstances must be so complete as not to leave any reasonable

ground for a conclusion consistent with the innocence of the accused.

 The circumstances from which the conclusion of guilt is to be drawn have

not only to be fully established; but also that all the circumstances so

established should be of a conclusive nature.

Memorial for Appellant

It was held in Rishipal

Vs.

State of Uttarakhand

{ 2013 (123) AIC, 92, S.C. }

that, circumstances sought to be proved against the accused have to be

established beyond reasonable doubt and such circumstances must form

complete chain leaving no option but to hold that the accused is guilty of the

offence with which he is charged.

 The law is well settled that, circumstantial evidence must satisfy 3 tests :

i. Circumstances must be cogently and firmly established.

But, in this case the circumstances has not been cogently and

firmly established by prosecution. Accused should get the benefit of

doubt.

ii. Circumstances should be of a definite tendency unerringly pointing

towards the guilt of the accused.

iii. The circumstances should form a chain.

In Nagina Rajbanshi

Vs.

Memorial for Appellant

 State of Bihar

[ 2013 (125), AIC, 826 ]

It was held by Hon’ble Patna High Court that when the court has convicted the

accused on the basis of circumstantial evidence, then, in that case each

circumstances must point towards the guilt of the accused.

 Also, it was held in

Virendra Poddar

Vs.

State of Bihar [ 2011 (103) AIC, 41, S.C. ]

that, the chain of circumstances must be complete and conclusive so as to

unmistakably and conclusive so as to unmistakably point to the guilt of the

accused and any hypothesis arising from evidence incomplete with the guilt of

the accused; then conviction on circumstantial evidence can’t be sustained.

Memorial for Appellant

 My case also fall within this ambit, where prosecution completely failed to

establish a conclusive chain of circumstances.

There are many landmark verdict pronounced by the Hon’ble Supreme Court

which also must be taken into consideration in support of my case.

These are – (i) Sharad Bridichand Sarda

Vs.

State of Maharastra

[ AIR 1984 SC 1622 ]

ii) Hanumant Govind Nargundkar

Memorial for Appellant

 Vs.

State of Madhya Pradesh [ AIR 1952 SC 343 ]

iii) C. Chenga Reddy Vs. State of A.P.

[ (1996) 10 SCC 193 ]

iv) Padala Veera Reddy Vs. State of A.P. [ AIR 1990 SC 79 ]

v) Kusum Ankama Rao Vs. State of A.P. [ AIR 2008 SC 2819 ]

vi) Pandurang Patil Vs. State of Maharastra [ AIR 2004 SC 3562 ]

whether there is any criminal intention on the part of the accused to kill the

deceased or not ?

 There was no quarrel between the accused and victim’s father on the date

of occurrence. In this case the respondent fails to prove any motive for

committing the offence by the accused; and there is gross deficiency in

respondent’s case. So, the benefit of doubt must be extended in favour of

the accused; but the trial court wrongly convicted the accused on doubt

that, the accused may have committed the murder.

Memorial for Appellant

These are – i) Sharad Bridichand Sarda

Vs

State of Maharastra

[ AIR 1984 SC 1622 ]

ii) Hanumant Govind Nargundkar

Vs

State of Madhya Pradesh [ AIR 1952 SC 343 ]

iii) C. Chenga Reddy Vs State of A.P.

[ (1996) 10 SCC 193) ]

iv) Padala Veera Reddy Vs State of A.P.

[ AIR 1990 SC 79 ]

v) Kusum Ankama Rao Vs State of A.P.

[ AIR 2008 SC 2819 ]

vi) Pandurang Patil Vs State of Maharastra [ AIR 2004 SC 3562 ]

Memorial for Appellant

 Whether there is any criminal intention on the part of the accused to kill

the deceased or not ?

 There was no quarrel between the accused and victim’s father on the date

of occurrence. In this case the respondent fails to prove any motive for

committing the offence by the accused; and there is gross deficiency in

respondent’s case. So, the benefit of doubt must be extended in favour of

the accused; but the trail court wrongly convicted the accused on doubt

that, the accused may have committed the murder.

But, there is a long gap between ‘may have’ and ‘must have’. There are 5

Golden principles on the basis of which ‘may have’ and ‘must have’ is to be

differentiated are :-

i) Circumstances should be fully established.

ii) Should be consistent only with the hypothesis of the guilt of

accused.

iii) Conclusive nature

iv) Exclude every possible hypothesis except the one to be proved.

v) Chain of evidence must be complete.

 Whether the principle of last seen theory is applicable in this case or not ?

Memorial for Appellant

 Last seen theory comes into play where, time gap between the point of

time when the accused and deceased were last seen together alive and

when the deceased was found dead in so small time gap that, possibility

of any other person being author of the crime becomes impossible. In my

case as per the verdict in -

Santosh Kumar Sahoo

Vs

State of Orissa

[ 2013 (129) AIC, 580, Orissa ]

there is long gap of 24 hours between the last seen of the accused and

recovery of dead body of the deceased. So, here last seen theory not

believable. Also, no recovery of any weapon or any material object at the

instance of the accused, so, it is highly doubtful and the prosecution is not being

able to prove its case beyond all reasonable doubt. So, the conviction made by

the trial court is not proper.

 Whether poly-graphic test in this case was valid ?

 Poly-graphic test is not a substantive piece of evidence. The Hon’ble Apex

Court in

Selvi

Vs

Memorial for Appellant

 State of Karnataka

[ AIR 2010 SC 1974 ]

has held forcible polygraph test as unconstitutional and violating Human Rights.

There is a guideline issued by the National Human Rights Commission for the

administration of polygraph test on an accused in 2000. These guidelines are :-

i) Consent of the accused must be obtained.

ii) Access to lawyer must be provided to the accused.

iii) The consent should be recorded by a Judicial Magistrate.

iv) During the hearing before the Magistrate, the person alleged to have

agreed should be duly represented by a lawyer etc.

But, in my case, the poly-graphic test was done by the police under compelling

situations with blatant disregard to procedural safeguard. So, it shouldn’t be

taken as a concrete piece of proof.

 Whether in this case the medical evidence corroborates any other

circumstantial evidence or not ?

 The medical evidence in this case has not been corroborated by any oral

evidence of any witness or by any circumstantial evidence, and the lathi

Memorial for Appellant
 recovered from the place of occurrence, there was no blood stain and the

evidence of doctor has not been corroborated by any other witness.

According to the postmortem report, death of the deceased was due to

asphyxia that means due to suffocation or throttling; but there was nothing

discovered either from the place of occurrence or from the accused which

has been used for death by asphyxia.

 Whether the conviction is proper basing upon the testimony of the sole

witness who turns hostile in the course of trial.

 There is no such straight jacket formula or hard and fast rule which says

that conviction can’t be based on testimony by single eyewitness if his

testimony has passed the test of credibility. The statement of one

eyewitness is accepted only when it is fully reliable. It is well settled

principle of law that, if the case is rested entirely on the sole evidence of

eye-witness such testimony should be wholly reliable.

But, in my case the sole witness for respondent turns hostile in trial.

It was held in

Mangilal

Vs

State of Uttar Pradesh

Memorial for Appellant
 [ 1991, Cr LJ, 916 ]

that, the evidence of a hostile witness must be examined more cautiously and

with proper care.

In my case, the so called sole witness Rabindra deviated from his statement

given before the police which doesn’t disclose that the appellant involved in the

offence and there is no conclusive evidence in this case to hold that the offence

was exclusively committed by the accused. Also, Rabindra became hostile in

course of trial which creates a reasonable cloud of doubt in the judicious mind of

any prudent man.

Memorial for Appellant

PRAYER

It is therefore prayed that Hon’ble High Court may be pleased to allow the appeal

and set-a-side the Judgment of the trial court and release the appellant from the

charges U/s. 302, IPC.

Memorial for Appellant

 AND

For this act of your kindness the appellant shall be duty bound and ever prayed.

Orissa By the Petitioner through

Date : Advocate

Memorial for Appellant