TEAM 26
IN PRESENCE OF
MEMORANDUM OF MOOT COURT
IN THE HONOURABLE HIGH COURT OF
CRIMINAL APPEAL NO./OF………
IN THE MATTER OF
STATE OF MAHARASHTRA …………………………………………….. APPELLANTS
VERSUS
MR. Y AND OTHERS ……………………………………………………… RESPONDENT
ON SUBMISSION TO THE HONOURABLE HIGH COURT OF
MOST RESPECTFULLY SUBMITTED
THROUGH:
COUNSEL OF APPEALANT
TEAM 26
TABLE OF CONTENTS
SR.NO TABLE OF CONTENT
1 INDEX OF AUTHORITIES
2 STATEMENT OF JURISDICTION
3 STATEMENT OF FACTS
4 ISSUES RAISED
5 SUMMARY OF ARGUMENTS
6 ARGUMENTS ADVANCED
7 PRAYER
8 EXHIBITS
INDEX OF AUTHORITIES
STATUTES
1. The Indian Penal Code, 1860
2. The Dowry Prohibition Act, 1961
3. The Code of Criminal Procedure, 1973
4. The Indian Evidence Act, 1872
BOOKS AND REPORTS
1. PSA Pillais Criminal Law 12th edition
2. N.K. Achariya Protection of women from domestic violence 6th edition
3. R.V.Kelkars Criminal Procedure 6th edition
4. Vepa P. Sarathi, Law of Evidence 6th edition
OTHER SOURCES
1. www.manupatra.com
2. www.scconline.com
3. www.lawcomissionofindia.nic.in
4. www.google.com
5. Indiankanoon.org
STATEMENT OF JURISDICTION
The Appellants have approached the Hon’ble High Court under Section.378 of the Code of
Criminal Procedure, 1973.
STATEMENT OF FACTS
1. Three years prior to the incident, the deceased X came to live with her husband Y,
after marriage in a row house situated in Navi Mumbai.
2. The accused Y had bought the house by securing a loan and wanted his wife to
contribute for the repayment of this loan. For this, he wanted his wife to bring Rs 10
lacs from her father who was financially stable.
3. However, the deceased X did not ask her father for the money since he had other
liabilities such as marriage of his two other daughters.
4. There used to be frequent quarrels between the deceased X and her husband due to
her non-compliance with his demands and the accused Y used to physically assault
the deceased too.
5. The deceased was under constant mental torture.
6. On the date of the incident, there was another argument between the deceased X and
her husband during which, the accused picked up a kerosene stove. Having found
some kerosene in the stove tank, he poured it on his wife and set her ablaze with his
cigarette lighter. After this, he immediately left the spot and did not return.
7. Some of the neighbours saw smoke from the house of the accused and called the
parents of the deceased. Her parents lived nearby and rushed their daughter to the
hospital where the deceased was admitted in a burn ward as she had suffered 85%
burn injuries.
8. The deceased was able to talk but she lacked clarity.
9. The police was intimated by the hospital authority. In the meantime, the deceased
narrated the entire incident to her father who recorded everything on a piece of paper
obtained by the hospital staff. The father of the deceased covered majority of the
incident on paper but before he could get the thumb impression of his daughter, the
deceased passed away.
10. Thereafter, the police reached the hospital and the body was sent for post-mortem.
The doctor stated in his report that the deceased had died due to shock and 85%
superficial to deep injuries.
11. The accused reached the hospital and claimed that the deceased must have committed
suicide. On the basis of the statement recorded by the father, the police arrested the
accused.
12. During investigation, the police recovered stove and cigarette lighter from the spot of
the incident. Thereafter, charge sheet was filed against the accused for offences
punishable under sections 302, 498A of the IPC and under provisions of dowry
prohibition act.
13. The trial court tried and acquitted the accused on the grounds that the dying
declaration was not recorded by the Magistrate and there was no medical certificate
regarding fitness of the deceased before giving the dying declaration. Moreover, the
father was an interested witness in the case.
ISSUES RAISED
ISSUE 1:
Whether it is necessary to issue medical certificate before recording the dying declaration?
ISSUE 2:
Whether the dying declaration not recorded by the magistrate can be relied upon in the
circumstances of the present case?
ISSUE 3:
Whether dying declaration by itself is sufficient for conviction or needs corroboration with
other evidences?
ISSUE 4:
Whether conduct of the accused of absconding for few hours be a circumstance against the
accused?
ISSUE 5:
Can the dying declaration recorded by the father be rejected because he was father of the
deceased? {interested witness}
ISSUE 6:
Whether few missing points in the dying declaration with regard to the incident be prejudicial
to the case of the state?
SUMMARY OF THE ARGUMENTS
ISSUE 1:
Whether it is necessary to issue medical certificate before recording the dying declaration?
There is no need for a medical certificate to be issued before recording the dying declaration.
It should be kept in mind that there no way a person will make false accusations or accuse a
person when they are on their death bed and meet their maker.
ISSUE 2:
Whether the dying declaration not recorded by the magistrate can be relied upon in the
circumstances of the present case?
It should be noted that in this case where the deceased was accused and tortured by the family
of the husband for dowry the dying declaration recorded can be relied upon as firstly it was
recorded by her father.
ISSUE 3:
Whether dying declaration by itself is sufficient for conviction or needs corroboration with
other evidences?
With relation to this case the dying declaration should be sufficient for conviction as the
declaration matches the facts given to us, i.e. the husband asking for dowry, the constant
quarrels between the accused and the deceased.
ISSUE 4:
Whether conduct of the accused of absconding for few hours be a circumstance against the
accused?
It further proves that the accused wanted his wife to die and did not care enough to take her to
the hospital. He left the scene of the crime so that no criminal liability falls on him and all of
this is seen as a suicide attempt by the deceased to escape the torture and the mental
harassment.
ISSUE 5:
Can the dying declaration recorded by the father be rejected because he was father of the
deceased? {interested witness}
The dying declaration should uphold in the court of law as the father was the only person
present on the scene of crime and if he waited for the magistrate or the police to arrive the
deceased would not have been able to tell her side of the story before her death.
ISSUE 6:
Whether few missing points in the dying declaration with regard to the incident be prejudicial
to the case of the state?
The dying declaration was complete and all the points were noted down by the father. He was
about to take the finger print of his daughter that she passed away. The passing does not mean
she did not complete her statement and thus the declaration is complete.
ARGUMENTS ADVANCED
Issue 1
Whether it is necessary to issue medical certificate before recording the dying declaration
necessarily?
It is humbly contended before this Hon’ble High Court that it is not necessary to issue
medical certificate before recording the dying declaration.
A division Bench of the Supreme Court comprising of Justice Ashok Bhushan and Justice
Ajay Rastogi Surendra, in the case of Bangali and Surendra Singh Routele v. State of
Jharkhand [Criminal Appeal No. 1078 of 2010], on February 4, 2021 has reiterated that mere
absence of doctor’s certification as to the fitness of the declarant’s state of mind would not
ipso facto render the dying declaration unacceptable. It was also further held that the
evidentiary value of such a declaration would depend on the facts and circumstances of the
particular case.
By three Judges bench decision of the Supreme court in the case of Koli Chunilal Savji &
Another vs. State of Gujarat 1999(9) SCC 562 was relied upon wherein this court has held
that if the materials on record indicate that the deceased was fully conscious and was capable
of making a statement, the dying declaration of the deceased thus recorded cannot be ignored
merely because the doctor had not make the endorsement that the deceased was in a fit state
of mind to make the statement in question.
A Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra,
(JT 2002 (6) 313) wherein overruling the judgment of this Court in Laxmi(Smt.) vs. Om
Prakash and ors., (2001 (6) SCC 118), it is held that a dying declaration which does not
contain a certificate of the doctor cannot be rejected on that sole ground so long as the person
recording the dying declaration was aware of the fact as of the condition of the declarant to
make such dying declaration. If the person recording such dying declaration is satisfied that
the declarant is in a fit mental condition to make the dying declaration then such dying
declaration will not be invalid solely on the ground that the same is not certified by the doctor
as to the condition of the declarant to make the dying declaration.
Issue 2
Whether the dying declaration not recorded by the Magistrate can be relied upon in the
circumstances of the present case?
Any person can record the dying declaration made by the deceased, but the person who is
recording the dying declaration must have some nexus with the deceased either
circumstantially or by some fact.
In Khushal Rao v. State of Bombay, Apex Court laid down the following principles related to
dying declaration:
(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no
corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;
(iii) Each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made.
(iv) A dying declaration stands on the same footing as other piece of evidence & has
to be judged in the light of surrounding circumstances & with reference to the
principle governing the weight of evidence.
The person who records the dying declaration must be satisfied that the maker is in a fit state
of mind and conscious while making the statement.
Issue 3
Whether dying declaration by itself is sufficient for conviction or needs corroboration with
other evidences?
In Khushal Rao v. State of Bombay, Apex Court laid down the following principles related to
dying-to-dying declaration:
(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no
corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;
(iii) Each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made.
(iv) A dying declaration stands on the same footing as other piece of evidence & has
to be judged in the light of surrounding circumstances & with reference to the
principle governing the weight of evidence.
Issue 4
Whether conduct of the accused of absconding for few hours be a circumstance against the
accused?
Following are the essential ingredients have been laid by the Supreme Court in Shanti v State
of Haryana.'
(i) the death of a woman must have been caused by burns or bodily injury or
otherwise than under normal circumstances; (in) such death must have
occurred within seven years of her marriage; (in) soon before her death, the
woman must have been subjected to cruelty or harassment by her husband or
any relatives of her husband;
(ii) such cruelty or harassment must be for, or in connection with, demand for
dowry.
Section 304 (B) should be read with section 113 (B) of Indian Evidence Act that says,
113B. Presumption as to dowry death. - When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such
woman has been subjected by such person to cruelty or harassment for, or in connection
with, any demand for dowry, the Court shall presume that such person had caused the
dowry death
ISSUE 5
Can the dying declaration recorded by the father be rejected because he was father of the
deceased? (interested witness)
In the matter of
State of Gujarat v/s Laxmanbhai @ Lakhabhai pratapbhai thakor & 2 other(s)
The Court said it cannot disbelieve the oral declaration merely because it was given to by
the deceased to her brother, who the defense claimed was an “interested witness”.
“A dying declaration is considered to be credible and trustworthy based upon the general
belief that most people who know that they are about to die, do not lie…. the evidence on
record of such interested sole witness is worth credence, the same would not be discarded
merely on the ground that the witness is an interested witness.
Similarly in the case of
In Arvind Singh vs. State of Bihar : MANU/SC/0310/2001, it was stated that dying
declaration said to the mother is not worthy acceptance.
Issue- 6.
Whether few missing points in the dying declaration with regard to the incident be
prejudicial to the case of the State?
In Muniappan vs. State of Madras : SC/0140/1961 it was said that if the accusation
against the person is complete & there is nothing to show that the deceased wished to say
anything more then such dying declarations can be accepted.
In Abdul Sattar vs The State Of Mysore AIR 1955 SC 168, 1956 CriLJ 334 although
dying declaration was incomplete it was accepted as it was corroborated.
PRAYER
In light of the facts stated, issues raised, authorities cited and arguments advanced, the
Respondent humbly prays that this Hon'ble Court:
1. To set aside the judgement of acquittal by the Trial Court.
2. To punish the respondent under Section 302, 304B , 498A of the Indian Penal
Code and under Section 4 of the Dowry Prohibition Act.
Pass any other such orders that the Hon'ble Court deems fit in the interests of equity
and good faith.
EXHIBITS
JUDICIAL PRECIDENTS CITATION
1 Bangali @ Surendra Singh Routele v. State LL 2021 SC 82
of Jharkhand
2 Koli Chunilal Savji & Another vs. State of 1999(9) SCC 562
Gujarat
3 Laxman vs. State of Maharashtra (2002) 6 SCC 710 : JT 2002
(6) SC 313
4 Laxmi(Smt.) vs. Om Prakash and ors 2001 (6) SCC 118)
5 Khushal Rao v. State of Bombay 1958 AIR 22, 1958 SCR 552
6 Shanti v State of Haryana 1991 AIR 1226, 1990 SCR
Supl. (2) 675
7 In Muniappan vs. State of Madras SC/0140/1961
