-Cause title- -petitioners --

MULTI MOOT

JUNE 2020

BEFORE HON’BLE SUPREME COURT OF INDIA

(Under Section 32 of The Hindia Constitution , 1950 )

AGHAM & SOCIAL ACTIVISTS PETITIONERS

Vs.
THE STATE OF MELUHA RESPONDENTS

MEMORANDUM ON BEHALF OF THE PETITIONERS

-Table of Contents- -Defence-

TABLE OF CONTENTS

(1) TABLE OF CONTENTS

(2) INDEX OF ABBREVIATIONS
(3) INDEX OF AUTHORITIES
(4) STATEMENT OF JURISDICTION
(5) STATEMENT OF FACTS
(6) QUESTIONS OF LAW
(7) SUMMARY OF ARGUMENTS
(8) ARGUMENTS ADVANCED

1. Whether the petitions are maintainable before the Court?

2. Whether the act of the deceased attracts tortious liability?
3. Whether the State is liable to provide compensation?
4. Whether the act of media in telecasting the rescue operations live is
permissible?

II
II
-Index of Abbreviations- -Defence-

INDEX OF ABBREVIATIONS

1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. AIR ALL INDIA REPORTER
5. Annex. ANNEXURE
6. Anr. ANOTHER
7. Art. ARTICLE
8. Consti. CONSTITUTION OF INDIA
9. Cr. CRIMINAL
10. CrPC CODE OF CRIMINAL PROCEDURE, 1973
11. FIR FIRST INFORMATION REPORT
12. Govt. GOVERNMENT
13. HC HIGH COURT
14. Hon’ble HONORABLE
15. i.e. THAT IS
16. IPC INDIAN PENAL CODE
17. No. NUMBER
18. Ors. OTHERS
19. P. PAGE
20. r/w READ WITH
21. SC SUPREME COURT
22. SCC SUPREME COURT CASES
23. SCR SUPREME COURT REPORTER
24. Supp. SUPPLEMENTARY
25. @ ALIAS
26. U/S UNDER SECTION
27. UOI UNION OF INDIA
28. V./Vs. VERSUS
29. W.r.t WITH RESPECT TO
-Index of Authorities- -Defence-

INDEX OF AUTHORITIES

STATUTES

1. CODE OF CRIMINAL PROCEDURE, 1973

2. CONSTITUTION OF INDIA, 1950
3. INDIAN PENAL CODE, 1860
4. INDIAN EVIDENCE ACT, 1872
BOOKS

1. D.D. BASU, Constitution of India, Lexis Nexis Butterworths, Wadhwa, Nagpur.

2. D.D. BASU, Criminal Procedure Code, 1973, Lexis Nexis Butterworths Wadhwa, 4th Edn,
2010.
3. GAUR K. D, The Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd.,4th Ed.,2013.
4. HARI SINGH GOUR, The Penal Law of India, 4869, (11th Edition, Delhi Law House, New
Delhi, 2006)
5. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary. [Delhi Universal Law
Publishing Co. Ltd].
6. J. W. CECIL TURNER KENNY’S, Outlines of Criminal Law, Cambridge University Press,
1952.
7. KELKAR R. V., Criminal Procedure Code, Pillai Eastern Book Company, 4th Ed.2007
(Revised by Dr. K. N Chandrasekharan).
8. M P JAIN, Indian Constitutional Law, 1180, LexisNexis Butterworths Wadhwa, Nagpur,
2010.
9. PETER MURPHY, Evidence, Oxford University Press, 11th Edition.
10. RATANLAL & DHIRAJLAL, The Code of Criminal Procedure, Lexis Nexis Butterworths,
Wadhwa, Nagpur, 20th Ed. 2011(Y Chandrachud J. &V R Manohar J.).
11. RATANLAL & DHIRAJLAL, The Indian Penal Code, Lexis Nexis Butterworths, Wadhwa,
Nagpur, 30th Ed. 2008(Y V Chandrachud J. &V R Manohar J.).
12. RATANLAL & DHIRAJLAL, The Law of Evidence, Lexis Nexis Butterworths Wadhwa &
Company Nagpur, 24th Ed. 2012 (Y V Chandrachud J. & V R Manohar J.).
-Index of Authorities- -Defence-

CASES

1. Ulka Ram v. State of Rajasthan

2. K.R. Reddy v. Public Prosecutor
3. Khushal Rao v. State of Bombay
4. P.V. Radhakrishna v. State of Karnataka
5. Munnu Raja v. State of M.P
6. U.P. v. Madan Mohan
7. Kishan Lal v. State of Rajasthan
8. Singh v. The State
9. Sayarabano Alias Sultanabegum v. State of Maharashtra
10. State of U.P. v. Ram Sagar Yadav
11. Kushal Rao v State of Bombay
12. Jagbir Singh vs State (NCT of Delhi)
13. Virsa Singh v. State of Punjab
14. Bakhtawar v. State of Haryana.
15. Subhash Ramkumar Bind Vakil and Anr. v. State of Maharashtra
16. Bhagat Singh v Commissioner of Police
17. Kishan Singh v State of Punjab
18. Sarju Modi v State Of Bihar
19. Vidya Devi v State of Haryana
20. State of AP v Raj Gopa Awasa
21. Uma Devi v The State & Another
22. State of AP v Raj Gopal Asawa
 -Statement of Jurisdiction- -Defence -

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the inherent jurisdiction to try, entertain and dispose of the
present case by virtue of Section 374(2) of The Code of Criminal Procedure, 1973

Section 374 - Appeals from convictions.

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a
trial held by any other Court in which a sentence of imprisonment for more than seven years has been
passed against him or against any other person convicted at the same trial], may appeal to the High
Court.
(3) Save as otherwise provided in sub- section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of
the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any
Magistrate, may appeal to the Court of Session.”
 -Summary of Arguments- -Defence-

STATEMENT OF FACTS

Malarvizhi and Rajkumar were married in 2010 and were residing at Thirunelveli.However after few
years their relationship got strained and were regularly quarrelling over frivolous issues. One Day,
Malarvizhi left her matrimonial house with her eldest daughter Pavithra and started living with her father
Durairaj at Rajapalayam near Thirunelveli. Rajkumar kept his younger daughter, Parimala with his
sister, Ragini and prevented Malarvizhi from seeing the child. During a noon Malarvizhi came to
Ragini's house and forcefully took Parimala with her. Rajkumar on hearing this reached Durairaj's house
and quarreled. After two days of the incident, Rajkumar and Durairaj happened to meet at a market place
and started to quarrel and grappled with each other. Both fell down. In the heat of passion thus generated
Durairaj slapped Rajkumar saying he would kill him. Rajkumar in fit of rage took a stick lying nearby
and gave a blow to the stomach of Durairaj. Durairaj who was suffering from diseased spleen fell down
instantly. Before dying Durairaj gave his Dying Declaration regarding the fight and the knowledge of
Rajkumar about the enlarged spleen. Rajapalayam police arrested Rajkumar and filed charge sheet.
Evidence was led by prosecution in the sessions Court and during trial an eyewitness stated that it was
Durairaj who slapped Rajkumar and started the fight. Trial Court relying on Dying Declaration of
Durairaj convicted Rajkumar for commission of murder and sentenced him for life imprisonment.
Rajkumar challenged the conviction by filing a Criminal Appeal, before the High Court of Madras,
relying on the deposition of the eyewitness.
Argues for the parties.
 -Summary of Arguments- -Defence-

QUESTIONS OF LAW

(1) WHETHER THE DYING DECLARATION MADE BY DURAIRAJ IS ADMISSIBLE FOR

THE CONVICTION OF THE APPELLANTS ?
(2) WHETHER THE CONVICTION OF THE APPELLANTS U/S 304 OF INDIAN PENAL CODE
CAN BE JUSTIFIED ?

SUMMARY OF ARGUMENTS

1.WHETHER THE DYING DECLARATION MADE BY DURAIRAJ IS ADMISSIBLE FOR

THE CONVICTION OF THE APPELLANTS ?

It is humbly submitted before the Hon’ble court that the statement given by the deceased,
justbefore succumbing to death is a valid, reliable and truthful dying declarationgiven undersect
ion 32(1) of Indian Penal Code 1860 and it should be made basis for theconviction of the accuse
d. The law relating to dying declarations is currently encoded underSections 32 and 33 of the In
dian Evidence Act, 1872.The Hon’ble Apex Court has held inseveral cases that there is no bar f
or basing conviction solely on the Dying Declaration but the
same should be tested about the voluntaries and truthfulness
2.WHETHER THE CONVICTION OF THE APPELLANTS U/S 304 OF INDIAN PENAL CODE
CAN BE JUSTIFIED ?
It is humbly submitted before the hon’ble court that the conviction of appellants u/s 304 of IPC are
justifiable under three subcontentions .
A.appellant had the knowledge of the consequences of the act
B.The act of respondent was likely to cause death
C.The death of the deceased was caused by the act of appellants
 -Prayer- -Defense-

ARGUMENTS ADVANCED

1. THE DYING DECLARATION MADE BY PRASANTHI IS ADMISSIBLE FOR THE

CONVICTION OF THE APPELLANTS
It is humbly submitted before the Hon’ble court that the statement given by the deceased,
justbefore succumbing to death is a valid, reliable and truthful dying declarationgiven undersect
ion 32(1) of Indian Penal Code 1860 and it should be made basis for theconviction of the accuse
d. The law relating to dying declarations is currently encoded underSections 32 and 33 of the In
dian Evidence Act, 1872.The Hon’ble Apex Court has held inseveral cases that there is no bar f
or basing conviction solely on the Dying Declarationbut thesame should be tested about the vol
untaries and truthfulness

1.1 EVIDENTIARY VALUE OF DYING DECLARATION

Section 32 (1) “When it relates to cause of death.—When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in
cases in which the cause of that person’s death comes into question.”

The above provision of the Indian Evidence Act envisage the concept of dying declaration having an
evidentiary value in case of proving the cause of death either natural or unnatural. The statement made
are in relevance with the cause of death, the person involved in causing the death and are considered
relevant whether the person who made them was or was not, at the time when they were made, under
exception of death, and whatever may be the nature of the proceeding in which the cause of his death
comes into question. The council for the State (hereinafter the Defendants) would like to draw the
attention of the hon’ble court to, what is a dying declaration for which the council submits that in the
case of Ulka Ram v. State of Rajasthan, Apex Court held that, “when a statement is made by a
person as to cause of his death or as to any circumstances of transaction which resulted into his death,
in case in which cause of his death comes in question is admissible in evidence, such statement in law
are compendiously called dying declaration.” Wherefore in the light of the Latin maxim nemo
morturus procsumitur mentri, the council submits that the principle on which a dying declaration is
admitted as an evidence for conviction as indicated, a man will not meet his maker with a lie in his
mouth is considered to be an appropriate theory for justification and for the credibility of the
statement.1

In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was observed as under:-

“The dying declaration is undoubtedly admissible under section 32 & not being statement on oath so
that its truth could be tested by cross-examination, the court has to apply the scrutiny & the closest
circumspection of the statement before acting upon it. While great solemnity and sanctity is attached
to the words of a dying man because a person on the verge of death is not likely to tell lies or to

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1 P.V. Radhakrishna v. State of Karnataka

XVI
-Prayer- -Defense-

connect a case as to implicate an innocent person, yet the court has to be on guard against the
statement of the deceased being a result of either tutoring, prompting or a product of his imagination.
The court must be satisfied that the deceased was in a fit state of mind to make the statement after the
deceased had a clear opportunity to observe & identify his assailants & that he was making the
statement without any influence. Once the court is satisfied that the dying declaration is true &
voluntary, it can be sufficient to found the conviction even without further corroboration.”

1.2 PRINCIPLES FOR DYING DECLARATION TO BE A RELIABLE EVIDENCE FOR

CONVICTION

The council humbly submit before this hon’ble court that the facts are very sound and clear about the
incident happened to the deceased Mr.Durairaj. As per the facts of the case, dying declaration was
recorded, as the statement of the deceased are sound and clear pronouncing the awarness of accused
on enlarged spleen, this statement made by the deceased can be valid evidence. Inorder to substatiate
the credibility of the dying declaration the council would like to draw the attention of the court to the
principles laid down by the Apex court in the case Khushal Rao v. State of Bombay, as follows;

 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.2
 A dying declaration is not a weaker kind of evidence than any other piece of evidence;
 Each case must be determined on its own facts keeping in view the circumstances in which
the dying declaration was made.
 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.
 A dying declaration which has been recorded by a competent Magistrate in the proper
manner stands on a much higher footing than a dying declaration which depends upon oral
testimony which may suffer from all the infirmities of human memory & human character.

Keeping the reliability upon the above principles the council submits the dying declaration have
proved to have a same weightage of all other evidences and has an evidentiary value for conviction.

2 Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] ) 2 (1992) 2
SCC 474
-Prayer- -Defense-

1.3. EVALUATION OF DYING DECLARATION

As laid down in U.P. v. Madan Mohan, the council would humbly submits before the hon’ble court
that the upheld principles for the evaluation the dying declaration mentioned below have made a
cogency with the facts and circumstances of the statement of the deceased, the council draws the
attention of the court regarding the principles of evaluation of a dying declaration;

Firstly, the court is under an obligation to look into the credibility of the statement which should
inspire full confidence as the maker of the dying declaration is not available for cross-examination. In
the instant fact is it very clear that the circumstances also proved that the deceased person’s marriage
life was not satisfactory.

Secondly, Court should satisfy that there was no possibility of tutoring or prompting, which was also
not witnessed as per the instant fact.

Thirdly, Certificate of doctor should mention that victim was in a fit state of mind. For which the
council would like to draw attention to the fact, “Same day a statement was recorded by Executive
Magistrate after getting fitness certificates from doctor”

Fourthly, Dying declaration should be recorded by the executive magistrate & police officer to record
the dying declaration only if condition of the deceased was so precarious that no other alternative was
left, this condition was also satisfied as per the fact.

The general principle on which this species of evidence are admitted is that they are declarations
made in extremity, when the party is at the point of death, and when every hope of this world is gone,
when every motive to falsehood is silenced and the mind is induced by the most powerful
considerations to speak only the truth. If evidence in a case reveals that the declarant has reached this
state while making a declaration then within the sphere of the Indian law, while testing the credibility
of such dying declaration weightage can be given. 3 Thus it could form the sole basis of conviction. It
is thus necessary that a Court trying the case should have before it a correct and faithful record of the
statement made by the dead person.4

1.2. FITNESS FOR ADMISSIBILITY OF DYING DECLARATION

To check the admissibility of a dying declaration a major ingredient to be fulfilled is that the person
providing the statement must be mentally and physically fit and a fitness certificate must be acquired
from the medical officer.6 The law on the issue of dying declaration can be summarised to the effect
that in case the court comes to the conclusion that the dying declaration is true and reliable, has been
recorded by a person at a time when the deceased was fit physically and mentally to make the
declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for
recording conviction. In such an eventuality no corroboration is required. In case there are multiple
dying declarations and there are inconsistencies between them, generally, the dying declaration
recorded by the higher officer like a Magistrate can be relied upon. 7 It is submitted that, with respect
to the above facts the criteria laid down has been thoroughly fulfilled thus making the dying
declaration made by the deceased admissible as an evidence. Thus relying upon the declaration made
either oral or in writing, by a person whose death is imminent, the principle attributed to Mathew
Arnold that “truth sits upon the lips of a dying man” and no man will go to meet his maker with
falsehood in his mouth will come into play. The principles relating to dying declaration are no longer
res integra and it would be appropriate to make the conviction of the accused.8

Therefore it is submitted that the dying declaration made by the deceased is admissible as
sole evidence for the conviction of the accused”

3 Kishan Lal v. State of Rajasthan

4 Singh v. The State (AIR 1962 SC 439)
5 Stateof U.P. v. Ram Sagar Yadav (1985) 1 SCC 552
6 Kushal Rao v State of Bombay
7 Jagbir Singh vs State (Nct Of Delhi) on 4 September, 2019
8 Paniben (Smt) v. State of Gujarat
2.WHETHER THE CONVICTION OF THE APPELLANTS U/S 304 OF INDIAN PENAL CODE
CAN BE JUSTIFIED ?

Section 304 provides punishment for culpable homicide not amounting to murder, wherein
whoever commits culpable homicide not amounting to murder shall be punished with
imprisonment for a term which may extend to ten years, or with fine, or with both, if the act is
done with the knowledge that it is likely to cause death.
A.APPELLANT HAD THE KNOWLEDGE OF THE CONSEQUENCES OF THE ACT
The term 'knowledge' under section 299, IPC postulates the existence of positive mental attitude
and this mental condition is the special mens rea necessary for the offence, which contemplates
the likelihood of the death of the person.
B. THE ACT OF RESPONDENT WAS LIKELY TO CAUSE DEATH
The word 'likely' as mentioned in Clause (c) of Section 299, conveys the sense of 'probable' as
distinguished from a mere possibility. This knowledge of his act can be attributed to him and he
can be made liable u/s 304, Part II as the force used by the accused were not in optimal level of
which he was aware, even then they proceeded with the act of assaulting the respondents.
C. THE DEATH OF THE DECEASED WAS CAUSED BY THE ACT OF
APPELLANTS
The quarrel was sudden provocation but the accused who is well aware of the enlarged spleen
with atmost knowledge gave a blow on the stomach.Thus, the accused Rajkumar be held liable
for culpable homicide as they have the knowledge that the act is likely to cause death of the
patient for the reasons of using vital force and weapon.

A.RESPONDENT HAD THE KNOWLEDGE OF THE CONSEQUENCES OF THE

ACT
The term ‘knowledge’ under section 299, IPC postulates the existence of positive mental
attitude and this mental condition is the special mens rea necessary for the offence, which
contemplates the likelihood of the death of the person. 1 The essence of knowledge lies in the
awareness on part of the person concerned with the act, indicating his state of mind.2
It is pertinent to note that the deceased , in the instant matter died because of the reckless act of
the accused, as the accused who is well aware of the health condition of the Durairaj with
atmost clear intent used necessary force in such a way it would lead to loss of life. This

1
Jayaraj v. State of Tamil Nadu, AIR 1976 SC 1519
2
Joti Prasad v. State of Haryana, AIR 1993 SC 1167.
knowledge on part of the accused that the deceased suffer from enlarged spleen , constitutes
part of culpable homicide fulfilling the ingredients within. Thereby, criminal liability could be
imposed u/s 304, Part II on Rajkumar as he possess the knowledge of the consequence of such
act, the proximate cause of which was the use of weapon with vital force in the first instance
with the defective equipments.
The Apex Court in the recent case of Alister Anthony Pareira v. State of Maharashtra 3, while
explaining the said section held that pertaining to the levying of punishment u/s 304 Part II, the
prosecution need to prove the death of person caused by the act of the accused having
knowledge that such act was likely to cause death. Further, in another case of State Tr. P.S.
Lodhi Colony New Delhi v. Sanjeev Nanda4, Supreme Court reiterated the above reasoning as to
the knowledge of the act likely to cause death of the person in question. In the instant case,
accused has evident knowledge of the circumstances that may cause the death of Durairaj in
reasonable proximity as they force clearly establishes the knowledge of the appellant.
The Court went on to draw the distinction between knowledge and intention in the case of
Basdev v. The State of Pepsu 5, stating that in many cases the intention and knowledge merge
into each other and mean the same thing more or less, whereby intention can be presumed from
knowledge. Though demarcation between the two is thin but not difficult to perceive that they
connote different things. In case of Riyazuddin v. State of NCT of Delhi6, the Delhi High Court
relying on the above distinction, convicted the doctor u/s 304, Part II. The court held that
though Riyazuddin may have no intention to commit the death of the deceased but the
knowledge that the act was likely to cause death was clearly attributable, thereby convicted for
offence punishable under Section 304 IPC.
Following the dictum discussed above, it can be said that for an act to be punishable under Sec-
304, Part II, the person has to have the knowledge of the consequences of the act that it is likely
to cause the death. It is evident in the present case that, the accused acted in manner wherein the
awareness of his act as to the knowledge of the act likely to causing death of Durairaj forms an
imminent part for such conviction. Further, Section 304 Part- II IPC requires knowledge on the
part of a person that the only probable consequence of his act would be ‘culpable homicide’.
The court in the case of Tukaram Dyaneshwar Patil v. State of Maharashtra relying on the facts
and circumstances of the case which have been proved by the prosecution in bringing home the
guilt of the accused under Section 304 Part-II IPC undoubtedly show a despicable aggravated
offence warranting punishment proportionate to the crime. The court in the strict interpretation,
observed that the sentence of eleven months awarded by the High Court for the said conviction
3
(2012) 2 SCC 648.
4
(2012) 8 SCC 450
5
AIR 1956 SC 488.
6
219 (2015) DLT 149.
was too meagre and not adequate, as would result in travesty of justice. Even no amount of
compensation could relieve the family of victim from the constant agony, thereby held that
imposition of five years of rigorous imprisonment on each respondent for the conviction under
Section 304 Part- II IPC would meet the ends of justice.
Thereby relying on the said judgment and the contentions therewith, it is argued that the
accused be held liable for culpable homicide as they have the knowledge that the act is likely to
cause death of the durairaj for the reasons of using vital force and knowledge of enlarged
spleen. For the reasons stated herein it is contended that criminal imposition of liability u/s 304
would meet the ends of justice as no compensation could relieve the constant agony of the
family members.
-Prayer- -Defense-

PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED, THE

DEFENSE HUMBLY PLEADS BEFORE THE HON’BLE COURT TO:

1. TO UPHOLD THE DECISION OF THE LOWER COURT

2. TO CONVICT THE ACCUSED PERSONS RELYING UPON THE DYING
DECLARATION MADE BY THE DECEASED

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST

OF EQUITY, JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE DEFENSE FACTION SHALL BEDUTY BOUND
FOREVER.

SD/-
(COUNSEL FOR THE DEFENSE)

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