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1. Index of Authorities..Pg 1 Indian Cases Books Dictionaries Statuary Compilations Internet Sites 2. List of abbreviations 3. The Statement of jurisdiction 4. The Statement of Facts 5. The Statement of Issues 6. The Summary of Arguments 7. The Arguments Advanced 8. The Prayer Pg 1 Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg

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=============================================================== INDEX OF AUTHORITIES Indian Cases

BOOKS o Basus ., The Indian Penal Code ,1980 Volume-2, 9th ed., New Delhi, Ashok Law Agency, 2006. o Batuklals., Commentary on The Indian Penal Code, 1908 Volume -2, 1st ed., New Delhi, Orient Publishing Company, 2007. o Batuklals., Commentary on The Code of Criminal Procedure, 1973 Volume -1, 4th ed., New Delhi, Orient Publishing Company, 2007. o Gaur, H.S., The Indian Penal Code, Allahabad, Dwivedi and Company, 2004. o Kelkar, R.V., The Code of Criminal Procedure 1973, 4th ed., Lucknow, Eastern Book Company, 2004. o Rantanlal and Dhirajlal, The Code of Criminal Procedure 1973, 17th ed., Nagpur, Wadhwa and Company, 2004. o Ratanlal and Dhirajlal, The Indian Penal code, 31 st ed., Nagpur, Wadhwa and Company, 2006. o Sarkars, S.C., Commentary on The Indian Penal Code, Volume-4, Allahabad, Dwivedi Law Agency, 2006. o Tandons, The Code of Criminal Procedure, 1973 16 th ed., Allahabad, Allahabad Law Agency, 2006.

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=============================================================== Dictionaries 1. Garner, Bryan A., Blacks Law Dictionary, 11th ed USA, West Publishing Co., 1999. 2. Hornby, AS. Oxford Advanced Learners Dictionary of Current English 6 th ed New York, Oxford University Press, 2002. 3. Pant, Prafulla C. Legal Dictionary, 2nd ed Allahabad, Modern Law Publishing House, 2004. 4. Sethi, R.P., Supreme Court on Words and Phrases (1950-2004), New Delhi, Ashoka Law House, 2004. 5. Simpson, J.A. and Weiner, CSC, Oxford English Dictionary, 2 nd ed Oxford, Clarendon Press, 2004. 6. Soanes, Catherine and Stevenson, Angus, Oxford English Dictionary of English. 2 nd Ed New Delhi, Oxford University Press, 2004. 7. Webster, New International Websters Dictionary and The saurus of the English Language, USA, Trident Press international, 2002. Statuary Compilations Indian Statutes The Code of Criminal Procedure ,1973 The Indian Penal Code ,1860 Indian Evidence Act, 1872

Internet Sites http://www.findlaw.com http://www.lawfinder.com

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=============================================================== http://www.indlawinfo.org http://www.supremecourtcaselaw.com http://www.lexisnexis.com http://www.manupatra.com

LIST OF ABBREVIATIONS

AIR All Bom Cal Co. CPC Del ed e.g. Guj HC i.e. Ker Ltd =========================== 4

All India Reporter Allahabad Bombay Calcutta Company Civil Procedure Code Delhi Edition Exemplum gratia Gujarat High Court id est (that means) Kerela Limited ==========================

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=============================================================== Mad Madras Nag No. Ori P. Para Paras Pat PP. Raj SC SCC UOI V Vol Nagpur Number Orissa Page Paragraph Paragraphs Patna Pages Rajasthan Supreme Court Supreme court cases Union of India Versus Volume

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THE STATEMENT OF JURISDICTION

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THE STATEMENT OF FACTS

1. That Prasada Rao And Krishna Rao belong to the same village, and are landlords and leaders of two opposing political parties.

2.

That in the election concluded in the month of April,2009 Prasada Rao lost elections to Krishna Rao.

3.

That on the night 13-5-2009 Seerenu and four others are accused of attacking Krishna Rao who was sleeping in the corridor of his house and killing him.

4.

That then the assailants broke open a door of the house, entered the house of Krishna Rao and looted gold, money and other valuables and in the process have caused serious injury to the wife and children of Krishna Rao.

5.

That thereafter his wife gave an FIR on the bases of which a case was registered against Parsada Rao and Others and after conducting investigation a chargesheet was filed against all the accused.

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THE STATEMENT OF ISSUES

1.
2.

Whether the accused are liable to be convicted for the offence under section 396IPC read with sections 111 and 112 IPC? Whether the accused are liable to be prosecuted for the offence of murder?

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THE SUMMARY OF ARGUMENTS

1. Whether the accused are liable to be convicted for the offence under section 396IPC read with sections 111 and 112 IPC?

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THE ARGUMENTS ADVANCED

ISSUE No. 1 Whether the accused are liable to be convicted for the offence under section 396IPC read with sections 111 and 112 IPC? 1.1 PRESENCE OF ACCUSED NOT ESTABLISHED
Arguments on behalf of Accused No.1 Prasad Rao It is humbly submitted that the accused Prasad Rao is not liable to be convicted for the offence under section 396 IPC read with sections 111 and 112 IPC. The Burden of proving the liability of the accused is upon the prosecution and the prosecution has miserably failed to discharge its burden beyond reasonable doubt. Even as per the prosecutions case the Accused Prasad Rao cannot be made liable for the offence under section 396 as according to the Prosecutions version it is alleged that the Accused Prasad Rao gave money to the other accused to eliminate Kishan Rao nothing has been alleged in the facts as to any direction given by the Accused Prasad Rao to commit offence under section 396 IPC. Section 396 IPC clearly states that If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1[ imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Dacoity is defined in Section 391, Indian Penal Code as under:-"When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons =========================== 10 ==========================

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=============================================================== present and aiding such commission or attempt, amount to five or more, every person so committing, at tempting or aiding, is said to commit 'dacoity' ". The essential ingredients of the offence of dacoity, therefore, are that five or more persons should be concerned in the commission of the offence and they should either commit or attempt to commit a robbery. Offence of robbery is defined in Section 390. Robbery is a special and aggravated form of either theft or extortion. The chief distinguishing element in robbery is the presence of imminent fear of violence. Section 390 of the Indian Penal Code reads as under: In all robbery there is either theft or extortion. Theft caused by the presence of a number of offenders. Abettors who are present and aiding when the crime is committed are counted in the number of persons or offenders. In the case in hand even as per the prosecutions version Prasad Rao was nowhere present in the vicinity of the place where the offence was committed and nothing has been produced on record to show that accused Prasad Rao in any manner aided in the commission of offence under section 396 IPC. Section 396 IPC uses the term persons present and aiding, no evidence to that effect has been led by the Prosecution to show that accused Prasad Rao was present at the place of incident and aided in commission of offence. Even as per the prosecution version accused Prasad Rao was never present at the place of offence. Honble Calcutta High Court in Abdul Wahed Akunjee v. State of W.B.1 held that 27. The main question for consideration regarding the pending appeals would be whether the appellant Jagannath Roy, Manoj Singh and Abdul Hai Gayen took part in commission of the dacoity as alleged by the prosecution witnesses and as sought to be proved by the prosecution through its evidence both oral and documentary.

(2006) 3 CHN 331 at page 337 11 ==========================

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=============================================================== 28. It is established position of law that to prove a charge under section 395 of the IPC the prosecution must establish from cogent and convincing evidence that the appellants were present at the place of occurrence where the dacoity took place and they took active part in commission of dacoity and this point can be proved by the witnesses who had the opportunity to see the miscreants on the spot and who could identify the miscreants soon after the occurrence through T.I. Parade and also during trial by pointing out the appellants as the persons who were present during commission of dacoity and who took active part in such commission of dacoity. Further in Kallu Alias Ramkumar vs State Of Madhya Pradesh 2 Honble Madhya Pradesh High Court observed that This witness had identified all the five accused persons during the test identification parade, but, the evidence of test identification parade will be accepted only against those accused persons against whose overt act this witness had stated in the Court. He has not stated about the specific overt act of accused Kallu and Barelal. Thus, evidence with respect to accused persons other than Gabbar alias Goverdhan and Chhotu alias Dayaram (Kallu alias Ramkumar, Barelal and Sukhram) appears to be shaky. The mere statement of P.W. 6 Anant Sharma about the presence of accused Kallu and Barelal, in the absence of any evidence of overt act, and further in the absence of evidence of other witnesses referred above, cannot be made the basis for conviction. However, the accused-appellants Kallu alias Ramkumar, Barelal and Sukhram are entitled to benefit of doubt, as their presence during the incident and their overt act has not been proved so as to warrant their conviction. Hence the above stated judgments clearly lays down that it is for the prosecution to establish the presence of accused at the place where offence was committed and his actual
2

1992 CriLJ 2380

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=============================================================== participation in the commission of offence. Even as per the prosecutions version Prasad Rao was not present at the time when alleged offence under section 396 IPC was being committed and nothing has been stated in evidence as to any part played by him in the commission of offence. Further it is submitted that Accused Prasad Rao had been falsely implicated on account of alleged political rivalry with kishan Rao. No connection between Accused Prasad Rao and Sreenu has been remotely established by the prosecution. Therefore, it is submitted that prosecution has failed to establish the presence of accused Prasad Rao in commission of offence beyond reasonable doubt on the other hand accused Prasad Rao has successfully established from the evidence on record that he is not liable for the offence charged much less he has successfully created doubt in the mind of the court regarding his involvement in the alleged offence. Hence Accused Prasad Rao should be acquitted on this sole ground. Arguments on behalf of Accused Sreenu and others It is humbly submitted that the accused Sreenu and others are not liable for the offence under section 396 IPC in as much as their presence has not been established at the place of occurrence by the prosecution beyond reasonable doubt. It is settled law that when the dacoity was committed during the night in a house, unless it is established on basis of reliable evidence that there was some source of light in which the witnesses could have identified the culprits, any claim of identification of the culprits by the witnesses should not be accepted, especially, when in the first information report as well as in the statements recorded during the investigation, no source of light was disclosed. It cannot be disputed that in cases relating to dacoity, the identification by the witnesses is the main evidence, as such the prosecution has to satisfy, that the witnesses were in a position to identify the culprits, during the commission of the dacoity. Any such claim that the witnesses identified the culprits during the commission of the crime, has to be examined by the court with reference to the circumstances of a particular case. The court has to be satisfied that there was not only ample opportunity for the witnesses to identify the culprits but they had identified them with the help of some light either in the house or outside. =========================== 13 ==========================

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=============================================================== The Honble Supreme Court in Kapildeo Mandal v. State of Bihar, 3observed as under 19. In the present case, we find from the evidence of the witnesses examined by the prosecution as already noticed that the witnesses are related and their relations were strained with the appellants on account of the litigation. The incident happened at 11 o'clock in the night. The witnesses have stated that they have seen the incident and recognised the appellants either in the torchlight or in the lantern light which was burning at their house. It has come in evidence of the witnesses as well as the investigating officer that neither the torch nor the lantern was seized by the investigating officer during the course of investigation, nor were they produced before the court. In the circumstances, it is difficult to believe that the appellants have been identified in the torchlight or in the lantern light. In Narayan Singh v. State of M.P., 4 the Honble Supreme Court observed that 7. ..The dacoits were strangers to the eyewitnesses. Then the question arose whether there was sufficient opportunity for these witnesses to recognise the accused. It is noted that none of their features (sic was) even suggestively mentioned in the FIR not even in the case-diary as noted by the High Court. It is also to be noted that none of the eyewitnesses said that they recognised the dacoits while they were inside the house and on the other hand it becomes highly doubtful whether they could not have identified the strangers in the moonlight. Taking all these aspects into consideration the trial court was not prepared to accept the evidence regarding the identification parade of the persons. We think this is a reasonable view in the matter. Therefore, the participation of the appellants in the actual dacoity becomes doubtful.

(2008) 16 SCC 99 at page 105 1994 Supp (1) SCC 62 at page 64 14 ==========================

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=============================================================== In State of U.P. v. Hardeo,5 the Honble Supreme Court held that 3. We have carefully gone through the records. Admittedly, the occurrence was during the dark midnight. The witnesses claimed to have identified the culprits standing at distance of 150 feet with the help of light emanating from the straw-fire in the khandar of Rajendra which was at a distance of 40 steps (80 feet) towards the north-west of the door of the scene house. The High Court on appreciation of the evidence was not inclined to accept the evidence of the witnesses claiming to have identified the culprits with the help of that light and also the torches carried by the assailants. In our opinion, the High Court was right in rejecting that evidence. Hence the prosecution has failed to establish the identity of the accused in as much as nothing has been stated as to whether there was sufficient light to identify the accused while they were committing offence of dacoity, whether the accused were stranger to the victims or were known to them. It is submitted that it is highly improbable that if the accused were known Kishan Rao or his family, the accused would have committed such offence without covering their faces. Hence the evidence to the effect that Krishna Raos wife and children identified all the accused cannot be relied upon in as much as it is not possible to identify the strangers whom the Krishna Raos wife had seen once and that too in moonlight in the middle of night at the time when they were actually asleep. Further the children being minor their evidence cannot be relied upon and moreover it is highly improbable the minor children could have identified the accused by seeing only once and that too in minimum possible light at the middle of night. Moreover no independent witness has deposed regarding their presence at the place of offence and nothing has been produced on record to corroborate the above said fact. Hence the accused Sreenu and others are liable to be acquitted on the sole ground that they have successfully created doubt in the mind of the court as to there presence at the place of offence.

1993 Supp (1) SCC 473 at page 474

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=============================================================== 1.2 MERE RECOVERY OF PROPERTY DOESNOT MAKE ACCUSED LIABLE FOR It is submitted that the evidence on record as to the recovery of looted property from Accused Sreenu doesnot proves the case of Prosecution and no presumption regarding commission of the alleged offence could be raised. In State of Rajasthan v. Talevar,6 the court observed as under 18. Thus, the law on this issue can be summarised to the effect that where the only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof. 19. In the instant case, accused Kuniya was arrested on 24-12-1996 and a silver glass and one thousand rupees were alleged to have been recovered on the basis of his disclosure statement on 29-12-1996. Again, on disclosure statement dated 2-1-1997, a scooter alleged to have been used in the dacoity, was recovered. Similarly, another accused Talevar was arrested on 19-1-1997 and on the basis of his disclosure statement on 26-1-1997, two thousand rupees, a silver key ring and a key of an Ambassador car alleged to have been used in the crime were recovered. Thus, it is evident that recovery on the basis of disclosure statements of either of the respondent-accused persons was not in close proximity of time from the date of incident. More so, recovery is either of cash, small things or vehicles which can be passed from one person to another without any difficulty. In such a fact situation, we reach the inescapable conclusion that no presumption can be drawn against the said two respondent-accused under Section 114 Illustration (a) of the Evidence Act. No adverse inference can be drawn on the basis of

ALLEGED OFFENCE.

(2011) 11 SCC 666 at page 671 16 ==========================

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=============================================================== recoveries made on their disclosure statements to connect them with the commission of the crime. . The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. In Sheonath v. State of U.P.,7 the Honble Supreme Court observed as under 4. The learned Counsel for the appellant contends that in the circumstances of the case the High Court should not have convicted the appellant under Section 396 IPC, but only under Section 411 IPC Section 114 of the Evidence Act and illustration (a) read as follows: 114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustrations. The Court may presume (a) that a man who is in possession of stolen goods after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. This Section was considered by this Court in Sanwat Khan v. State of Rajasthan [ AIR (1956) SC 54] . This Court, after considering some High Court cases, observed: In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof..
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(1969) 3 SCC 116 at page 118

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=============================================================== .. The recovery took place five days after the dacoity. It is not impossible that during that period the property might have passed from the dacoits to a receiver. Under these circumstances, we are of opinion that it would not be safe to convict Bhurgiri of dacoity on the evidence of this recovery alone. It would be more proper to convict him as a guilty receiver. Then the question arises whether he should be convicted under Section 411 or 412 IPC. So far as Section 411 is concerned, he is clearly guilty under that section. The presumption under Section 114 applies, and we can safely presume that he is a guilty receiver of stolen property particularly when we find that the property was kept in the Bara, and not at his own house. He must have had reason to believe that it was stolen when he received the property and that is why he left in the Bara. But we feel that it would not be proper to convict him under Section 412 because that section requires that the receiver should know or have reason to believe that the property had been transferred by the commission of dacoity. The prosecution, in our opinion, has to show something more than the mere possession of stolen goods for a conviction under Section 412. If the prosecution is only able to show mere possession, the proper section to use is 411. Similarly in Narayan Singh v. State of M.P.8, it was held that 8. However, the recoveries are duly effected and the Sub-Inspector as well as the witnesses spoke about the same. Merely because certain stolen articles were recovered from the accused they cannot be held to be dacoits by invoking the presumption unless there is a recent possession.. In State of U.P. v. Hardeo9, it was held that 4. So far as the recovery of the articles said to have been concerned with the case, as held by the High Court there is no satisfactory evidence to connect the first
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1994 Supp (1) SCC 62 at page 65

1993 Supp (1) SCC 473 at page 475

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=============================================================== respondent so as to incriminate him with the offence under Section 412 IPC. In our considered opinion, the judgment of the High Court does not warrant any interference. Hence, it is submitted that it is an established law that mere discovery recovery of property doesnot raise presumption that offence under section 396 IPC has been committed by accused Sreenu much less other accused. The looted property included gold, money and other valuables which are movable property and could be easily transferred from one person to another, and hence possibility of movable property having been passed on to Sreenu from someone else cannot be ruled out. Further except for the statement made by wife of Krishna Rao no independent evidence has been led by the Prosecution. Nothing has been produced on record to corroborate the above said fact. Moreover no evidence as to identity of money could be led and as far as other movable properties are concerned identical gold ornaments or identical movables are available in bulk and easily available in market. Hence the Prosecution has failed to establish any role played by any Accused in commission of above said alleged offence. On the other hand Accused have created sufficient doubt in the mind of the Court. Accused Sreenu could be prosecuted maximum under section 411 IPC for the recovery. 1.3 ACCUSED CANNOT BE CONVICTED UPON THE UNCORROBORATED TESTIMONY OF KRISHNA RAOS WIFE AND TWO MINOR CHILDREN. It is submitted that Accused cannot be convicted solely on the testimony of Krishna Raos wife and children. The evidence given by the witnesses is contradictory to the version given by the Prosecution as even according to the facts alleged by the Prosecution Prasad Rao was not present at the place where offence took place. Registering FIR against Prasad Rao who was not even remotely connected with the crime clearly shows that it was only due to the alleged political rivalry and suspicion created on the basis of alleged rivalry that he has been falsely implicated in this case. In Nallabothu Venkaiah v. State of A.P.10 Honble Supreme Court held that:
10

[(2002) 7 SCC 117 : 2002 SCC (Cri) 1615] (SCC p. 125, para 13)

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=============================================================== 13. The test, in such circumstances, as correctly adopted by the trial court, is that if the witnesses are interested, the same must be scrutinised with due care and caution in the light of the medical evidence and other surrounding circumstances. Animosity is a double-edged sword and it can cut both sides. It can be a ground for false implication. It can also be a ground for assault. In Ramanand Yadav v. Prabhu Nath Jha11 the court held that 15. if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Hence , it is settled law that in cases of animosity and relationship the testimony of the witnesses should be examined with caution and must be corroborated in material particulars. However nothing has been produced on record to corroborate the evidence of witnesses. Further the evidence given by child cannot be relied upon as it is an established law that a child witness can be easily tutored. In the case in hand since accused Prasad Rao was nowhere present at the place where offence was committed and the children could not be expected to have known any kind of animosity between the accused and their family, hence this clearly establishes that children were tutored to depose in particular manner after the commission of alleged offence. In State of U.P. v. Ashok Dixit12Honble Supreme Court has held that 9. The law is well settled that evidence of a child witness must be evaluated carefully as a child may be swayed by what others tell him and is an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate

11

[(2003) 12 SCC 606 : 2004 SCC (Cri) Supp 526] (SCC p. 613, para 15)
2000) 3 SCC 70 at page 73

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=============================================================== corroboration before it is relied on. (See Panchhi v. State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] ) 10. The High Court was of the view that considering her age at the time of occurrence PW 3 might have been sleeping. This cannot be said to be impossible. 11. PW 3 also has deposed that accused Ashok was known to her family and used to visit their house but accused Chaman Lal was not known to this witness. She identified both the accused in the Court. At the time of the occurrence there was no electricity, therefore, it is difficult to accept that she being 9 years old could have identified accused Chaman Lal during the occurrence. In Arbind Singh v. State of Bihar,13 it was held that 3. It is well-settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that appellant 1 was entitled to benefit of doubt. Similarly in K. Venkateshwarlu v. State of A.P.,14 it was held that 9. . The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the
13

1995 Supp (4) SCC 416 at page 417

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(2012) 8 SCC 73 at page 78 21 ==========================

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=============================================================== other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it. Thus from the above stated judgments it is clearly established that the evidence given by the deceaseds family members cannot be relied upon. More so when no evidence other than oral testimony of the witness has been given.

1.4 TALLING OF FRINGERPRINTS ON THE WEAPON AND SCENE OF ACCUSED DOESNOT MAKE ACCUSED LIABLE It is submitted that tallying of finger prints doesnot support the case of Prosecution in as much as nothing has been stated on facts that fingerprints are of any of the accused mentioned in the FIR. 1.5 EVIDENCE OF PW-6 DOESNOT SUPPORT THE CASE OF PROSECUTION Alagupandi v. State of T.N., (2012) 10 SCC 451 at page 462 29. Existence of a motive for committing a crime is not an absolute requirement of law but it is always a relevant factor, which will be taken into consideration by the courts as it will render assistance to the courts while analysing the prosecution evidence and determining the guilt of the accused. 1.6 OFFENCE UNDER SECTION 396 NOT COMMITED =========================== 22 ==========================

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THE PRAYER
In the light of the issues raised, arguments advanced and authorities cited, it is humbly prayed before this Hon`ble Court that the Accused deserves to be acquitted of the charges framed against him, in the interest of justice.

Respectfully Submitted

Sd/Counsel for the Respondent

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