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SURANA AND SURANA NATIONAL TRIAL

ADVOCACY MOOT COURT

COMPETITION, 2013

BEFORE THE COURT OF SESSIONS


AT PANAJI, GOA
S.C. NO.467 OF 2013

STATE OF GOA
(PROSECUTION)
v.
MAJ. (RETD.)J.S.RANA
(DEFENCE)

FOR OFFENCES CHARGED UNDER:


SECTION 396 READ WITH SECTION 302 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION


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TABLE OF CONTENTS

TABLE OF CONTENTS
Table of Contents

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List of Abbreviations

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Statutes

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ii
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Statement of Jurisdiction

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Index of Authorities
Table of Cases
Books
Lexicons
Websites

Statement of Facts

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Statement of Charges

Summary of Arguments

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Arguments Advanced

Issue-I

Whether Maj Rana is guilty of Dacoity?

Issue-II

Whether Maj Rana is guilty of Murder?

Prayer

1
6

MEMORANDUM ON BEHALF OF THE


PROSECUTION

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LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

AIR

All India Reporter

All

Allahabad High Court

Cal

Calcutta High Court

Cri LJ / Cr LJ

Criminal Law Journal

Cr.P.C.

Code of Criminal Procedure

Del

Delhi High Court

DW

Defence Witness

Ed.

Edition

Guj

Gujarat High Court

IPC

Indian Penal Code

IC

Indian Cases

Mad

Madras High Court

n.

Foot Note no.

Ori

Orissa High Court

p.

Page No.

P&H

Punjab and Haryana High Court

Pat

Patna High Court

PW

Prosecution Witness

Raj

Rajasthan High Court

SC

Supreme Court

SCC

Supreme Court Cases

SCJ

Supreme Court Journal

SCR

Supreme Court Reporter

Sec.

Section

v.

Versus

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THE PROSECUTION

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INDEX OF AUTHORITIES

INDEX OF AUTHORITIES
TABLE OF CASES:
1.

Amar Malla v State of Tripura, AIR 2002 SC 3052

2.

Ambalal v State of Rajasthan, 2003 Cr LJ 115

3.

Asha v State of Rajasthan, AIR 1997 SC 2828

4.

Badshah Singh v State, AIR 1958 All 677

5.

Bakshish Singh v State of Punjab, AIR 1971 SC 2016

6.

Bhanwar Singh v State of MP, (2008) 16 SCC 657

7.

Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790

8.

Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1

9.

Deonandan Mishra v State of Bihar (1955) 2 SCR 750

10.

Gopal Naidu v. Emperor AIR 1923 Mad 523

11.

Hari Singh v State of Rajasthan, AIR 1997 SC 1505

12.

Harish Chandra Thange v State of Maharashtra, AIR 2007 SC 2957

13.

Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630

14.

Joginder Singh v State of HP, (1995) 1 Cr LJ 124

15.

Jugal Gope v State of Bihar, AIR 1981 SC 612

16.

Kalua v. State of UP, AIR 1958 SC 180

17.

Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883

18.

Krishna Pillai v State of Kerala, AIR 1981 SC 1237

19.

Laxman v. State of Maharashtra, AIR 1974 SC 1803

20.

Leela Ram v. State of Haryana AIR 1999 SC 3717

21.

Madhusundan Das v Narayanbai, AIR 1983 SC 114

22.

Md. Badaruddin v. State of Assam, 1989 Cr LJ 1876 (Gau)

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INDEX OF AUTHORITIES

23.

Md. Idrish v. State, 2004 Cr LJ 1724 (Raj)

24.

MO Shamshudin v State of Kerala, (1995)3 SCC 351

25.

Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175

26.

Nath Singh v State of UP, 1980 SCC (Cr) 968

27.

Niranjan Das and Ors. v. Giridhari Das and Anr., 68 (1989) CLT 746

28.

Rahimal v. State of Uttar Pradesh,1992 Cri LJ 3819 (All)

29.

Rameshwar v State of Rajasthan, AIR 1952 SC 54

30.

Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461

31.

Sajjan Kumar v. State of MP, 1999Cri LJ 4561

32.

Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

33.

Shajahan v State of Kerala, (2007) 12 SCC 96

34.

Shyam Behari v. State of Uttar Pradesh, AIR 1957 S.C 132

35.

Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142

36.

State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012

37.

State of Haryana v Mewa Singh, AIR 1997 SC 1407

38.

State of Himachal Pradesh v. Lekh Raj and Anr., 1999 (9) ST 155

39.

State of Kerala v Thomas, (1986) 2 SCC 411

40.

State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)

41.

State of Maharashtra v Meyer Hans George, AIR 1965 SC 722

42.

State of Maharashtra v Suresh, 2000 (1) SCC 471

43.

State of Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609

44.

State of Punjab v Sucha Singh, AIR 2003 SC 1471

45.

State of Rajasthan v. Kalki and Anr., 1981 Cri LJ 1012

46.

State of U.P. v. M.K. Anthony, 1985 Cri LJ 493

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INDEX OF AUTHORITIES

47.

State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840

48.

State v Dinakar Bandu (1969) 72 Bom LR 905

49.

Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601

50.

Tota Singh v State of Punjab, AIR 1987 SC 1083

51.

Ugar Ahir v State of Bihar, AIR 1965 SC 277

BOOKS:
1.

Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

2.

Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal


nd

Jurisprudence, (2 Ed 1989)
3.

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

4.

Gupte and Dighe, Criminal Manual, (7 Ed. 2007)

5.

Harris, Criminal Law, (22nd Ed. 2000)

6.

Hill, McGraw, Criminal Investigation, (4 Ed. 2004)

7.

I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

8.

I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6 Ed. 2002)

9.

II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

th

th

th

10. II, Nandi, Criminal Ready Referencer, ( 2

nd

Ed. 2007)
th

11. II, Princeps Commentary on the Code of Criminal Procedure, 1973 (18 ed. 2005)
12. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)
st

13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1 Ed. 2003)
14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
th

15. Lal, Batuk, The Law of Evidence, (18 Ed. 2010)


16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)
rd

17. Modis Medical Jurisprudence and Toxicology, (23 Ed. 2010)

MEMORANDUM ON BEHALF OF THE PROSECUTION

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
INDEX OF AUTHORITIES

18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology,


(6th Ed. 2002)
rd

19. Ratanlal and Dhirajlal, The Indian Penal Code, 33 Ed. (2011)
20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
th

21. Sarkar, Law of Evidence, (13 Ed,1990)


22. Saxena & Gaur, Arms and Explosives, (10th Ed. 2012)
th

23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4 Ed. 2003)
24. Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)
25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)

LEXICONS:
nd

1. Aiyar, P Ramanatha, The Law Lexicon, (2 Ed. 2006)

WEBSITES:
1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com

STATUTES:
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)
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STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION
The Honble Court has jurisdiction to try the instant matter under Section 177 read with
Section 209 of the Code of Criminal Procedure, 1973.

Section 177:
177. Ordinary place of inquiry and trialEvery offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.

Read with Section 209:


209. Commitment of case to Court of Session when offence is triable exclusively by itWhen 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(1) commit the case to the Court of Session;
(2) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
(3) send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
(4) notify the Public Prosecutor of the commitment of the case to the Court of Session.

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STATEMENT OF FACTS

STATEMENT OF FACTS
st

1. On the night of 31 December, 2012, the Montecito Hotel & Casino owned by Ms Shonli
Gujral, on the ship Aurora located on river Mandovi , hosted a high stakes poker game on
the Octavious floor. The chain of events that transpired that night are:
1.

Post 11p.m. of that night, the Octavious vault had been breached by four men dressed
in fine suits, though while making their exit the alarm got triggered.

2.

Subsequently the four men ran towards the deck to make an exit, and threw eight
waterproof bags overboard into a motorboat. Two of the men escaped by rappelling
into a motorboat, while the other two awaited their turn to rappel down.

3.

Just as the remaining two were about to make their escape, Mr. Michael Barbosa
(Chief Security Officer) ordered them to stop.

4.

Thereafter Mr. Barbosa fired a warning shot in the air, however when they still did
not stop, he fired at one mans knee and subdued him, they disobeyed the order and
one of them took a guest as hostage in order to escape; subsequently the accused,
Maj. (Retd.) J.S. Rana (Head of Operations, Security) had shot dead the other man.

5.

The police reached the scene of crime at 12.15 a.m and Ms Shonali registered an
F.I.R against the accused.
th

2. Bhaskar Sanyal, on 4 February, 2013 confessed to the crimes under Sec. 164 of the Code
of Criminal Procedure, and further provided incriminating evidence against the accused. The
final report of the police was made on the complicity of the accused on the 14th March, 2013.
th

3. On 16 May, 2013, an interim order was passed by the Sessions Court stating that the
charges under Sec.396/302 have been read out to the accused and that the chargesheet has
been served. The accused pleaded not guilty and claimed trial. The matter is listed for final
hearing before the Sessions Court, Panaji on the 29th May 2013.
MEMORANDUM ON BEHALF OF
THE PROSECUTION

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STATEMENT OF CHARGES

STATEMENT OF CHARGES
CHARGE 1
Maj. (Retd) J. S. Rana has been charged under Section 396 read with Section 302 the Indian
Penal Code, 1860 for the crime of Dacoity with Murder.

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SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS
ISSUE I
WHETHER THE ACCUSED IS GUILTY OF DACOITY?
It is humbly submitted before this Honble Court that the accused, Maj. (Retd) J. S. Rana is
guilty of committing dacoity as he had committed the crime with 5 other members with full
intent of robbing the Octavious Vault of the 12 Crore Rupees that was being held in it on the
1st of January 2013. The accused had access to all of the necessary instruments to carry out a
successful robbery as he was the Head of Operations (Security) aboard the Montecito. And
while committing said crime the accused had committed murder, thus fulfilling all of the
elements of section 396 of the IPC.

ISSUE II
WHETHER THE ACCUSED IS GUILTY OF MURDER?
It is humbly submitted before this Honble Court that the accused is guilty of murder as he
had committed an act of cold blooded murder on board the Montecito with many witnesses to
the actus reus. The accused had the requisite mens rea to commit said crime, and he even had
a motive to carry out said act. The shot was fired point blank in the centre of the deceaseds
head, thus showing it was indeed an execution and not an act of self defence or an accident.
Hence it is proven beyond a reasonable doubt that the crime of Murder was indeed committed
by the accused in the case at hand.

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED

ARGUMENTS ADVANCED
ISSUE-I
WHETHER MAJ RANA IS GUILTY OF DACOITY?
It is humbly contended that Maj. (Retd) J.S. Rana (hereinafter referred to as the
accused) is guilty of unlawful offences under Sec. 396/302 of the Indian Penal
Code, 1860 (hereinafter referred to as IPC). It is to be noted that the essential
elements of Sec. 396 are as follows:
1

The dacoity must be the joint act of the persons concerned;

Murder must have been committed in the course of the commission

of the dacoity1. The pre-requisite of a dacoity will be dealt with in the present issue
(Issue I), while the charge of murder will be proved in the subsequent issue (Issue
2

II). Dacoity is robbery committed by five or more persons , with the abettors who
are present and aiding when the crime is committed, to be counted in the number.
The ingredients of dacoity are thus as follows:
3

The accused committed or attempted to commit robbery[1.1]

4 Persons committing or attempting to commit robbery and present and


aiding must not be less than five; and [1.2]
5

All such persons should act conjointly .[1.3]

Furthermore, the Prosecution humbly contends that the confessional statement of


Bhaskar Sanyal is corroborated in all material aspects [1.4] notwithstanding any
discrepancies in witness statements and the confession [1.5].

1Shyam Behari v. State of Uttar Pradesh, AIR 1957 S.C.; Rahimal v. State of Uttar Pradesh,1992
CriLJ 3819 (All)

Sec 391, IPC

Sec 390, IPC

State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

1.1 THE ACCUSED COMMITTED OR ATTEMPTED TO COMMIT ROBBERY


Sec 118, The Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act)
mandates that all persons shall be competant witnesses, unless they are prevented
from understanding or answering the questions put to them by virtue of tender
years, extreme old age, disease, lunacy or any other cause of same kind. Given that
none of the witnesses in the instant matter fall within the exceptions enumerated
under Sec 118, it is logical to conclude that all of them are competant witnesses.
Therefore, it is the duty of the Court to scrutinise the evidence carefully and
separate the grain from the chaff.5
The Prosecution concedes that Bhaskar Sanyal (PW 2) is an interested witness i.e. a
person who wants to see the accused convicted because of his own animus or
otherwise.6 However, it is well established that because a witness is an interested
7

witness, his evidence cannot be totally disregarded in toto. Eye-witnesses, being


friends of the victim, cannot be discredited for that reason alone.8
The confession of PW 2 makes it evident that the accused was an active participant
in planning the entire dacoity and also aided in their entrance in the Octavious floor,
by securing relevant information9.This is further corroborated by statements from
Shonali Gujral

10

11

(PW 1) and Michael Barbossa (DW 4) who state that the accused

had the final call on who could


5

Ugar Ahir v State of Bihar, AIR 1965 SC 277

Tota Singh v State of Punjab, AIR 1987 SC 1083

Madhusundan Das v Narayanbai, AIR 1983 SC 114, Krishna Pillai v State of Kerala, AIR 1981 SC
1237

Asha v State of Rajasthan, AIR 1997 SC 2828

Annexure 8, Case Details, P. 17

10

Annexure 7, Case Details, p. 14, para 1

11

Ibid, para 2

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED

be admitted to the Octavious floor of the Aurora. Moreover, the accused was
entrusted with enforcing security within the Octavious floor.

12

Therefore, the

accused was privy to the details of the security arrangement security in place,
which included the rotation of guards.

13

It is also to be noted that in the process of emptying the vault, the dacoits did not
face any resistance from the guards, who claimed that some guests had lost their
way.

14

A conviction is possible on circumstantial evidence if it forms a chain of evidence


so complete as not to leave any reasonable doubt for a conclusion consistent with
the innocence of the accused15 If a false answer is offered by the accused when his
attention is drawn to the circumstance , a false answer would act as the missing link
in completing the chain of evidence. 16Therefore, it is submitted before this Honble
Court that the circumstantial evidence makes it clear that the accused had hatched
the plan and abetted the others in commission of dacoity.
1.2 PERSONS PRESENT AND AIDING MUST NOT BE LESS THAN FIVE
Excluding the accused, it is seen that there were four other participants to the crime
on board the Aurora :
1.

Security on the intercom stated that they saw four men in suits
carrying large bags running towards the deck

2.

17

DW 4 saw four men in suits throwing bags from the ship18

12

Ibid, p. 15

13

Ibid, p.14

14

Supra, n. 11, p. 15

15

Deonandan Mishra v State of Bihar (1955) 2 SCR 750; Harish Chandra Thange v State of

Maharashtra, AIR 2007 SC 2957

16

State of Maharashtra v Suresh, 2000 (1) SCC 471

17

Annexure 7, Case Details, p. 15

18

Ibid

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED
19

3.

Zareen Malik (DW2) s saw four men run onto the deck

4.

Confessional statement of PW2 states that four men were on board


the Aurora while commission of dacoity and another participant
Pappu Chote, was waiting on a motorboat to assist in the escape of
the accused persons

5.

20

Facts made out state that a motor boat was waiting for the accused

21

persons . From the aforementioned statements, it is evident that there were four
people onboard the ship while committing dacoity and another participant was in a
motorboat assisting in the retreat of the accused persons. Hence, apart from the
accused, there were five other participants to the crime.
1.3 ALL SUCH PERSONS SHOULD ACT CONJOINTLY
The word conjointly refers to united or concerted action of five or more persons
participating in the act of committing an offence 22. From the aforementioned
arguments, it is clearly established that the accused aided the accused persons by
giving them integral information about the security layout and assisted them in
entering the Octavious floor of the Montecito. The entire chain of events from
getting on board the ship, to the escape was a well planned and concerted effort by
the accused persons. Thus, it is humbly submitted before this Honble
Court that the threshold of acting conjointly has been fulfilled.
1.4 CORROBORATION OF CONFESSION
Being an accomplice i.e. a guilty partner or associate in a crime, 23 the evidence of
PW2 is subject to the combined reading of Sec 114 and Sec 133, Evidence Act and
requires some

19

Ibid, p. 16

20

Supra n. 9

21

Case Details, P. 1

22

Niranjan Das and Ors. v. Giridhari Das and Anr., 68 (1989) CLT 746

23

MO Shamshudin v State of Kerala, (1995)3 SCC 351

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED

independent

corroboration

in material particulars

for acceptance.

24

The

corroboration need not be direct evidence but is sufficient if it is merely


circumstantial evidence,

25

i.e. the entrance into the Montecito [A], breaking into the

vault [B], timing of commission [C] and the number of people [D].
1. Entrance into Montecito
1)

Confession The accused offered to secure entrance of all the accused persons.

2) Witness statementPW1 and DW4 indicate the accused made the final call on
guest list and was supposed to scrutinize the names on the list to ensure safety.
2. Breaking into the vault
1) Confession - The accused shared information as to when the post of the guards
would change so as to ensure undetected entry.
2) Witness statement - Accused himself verifies that he was entrusted with security
of the entire ship, along with DW 4 who states that security arrangements of the
Octavious floor was exclusively managed by the accused.
3. Time of Commission
1)

Confession- Post 11:30 p.m. the accused persons started commission of dacoity.

ii)Witness statement -F.I.R. filed by PW1 states that the firing started in between
11:30-11:45p.m, corroborated by DW 2 statements about gunshots fired at around
12 oclock.
D. Number of persons
As already established in issue 1.2, the confessional statement of PW 2 is verified
with oral testimony of other witnesses, with regard to the number of people
perpetrating the offence. Thus, the aforementioned chain of events stated in PW2s
confession is in consonance with the oral testimony and clearly indicate the
involvement of the accused.
24

State of Kerala v Thomas, (1986) 2 SCC 411

25

Rameshwar v State of Rajasthan, AIR 1952 SC 54

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED

1.5 DISCREPANCIES IN WITNESS STATEMENTS ARE IMMATERIAL


It is contended by the defence that there exist discrepancies, between the witness
statements and the confession, with respect to the time of commission of the crime.
However, in the instant case, none of the statements contradict each other with
respect to the manner in which the crime was carried out. Neither is there any
inconsistency in the chain of events which have been narrated by the witnesses.
Furthermore, since the accused persons were in the Aurora from 11p.m. to 12a.m.
there can be no other alibi for them. Thus, it is an immaterial discrepancy.

There is bound to be some discrepancy between the narrations of different


witnesses due to errors of observation, errors of memory due to lapse of time,
mental disposition and the like.

26

Trivial discrepancies ought not to obliterate

otherwise acceptable evidence of eye-witnesses


prosecutions case

28

27

and are not fatal for the

as they do not go to the root of the prosecution story and need

not be given undue importance29.

Therefore, the Prosecution humbly submits that the Trial Court would be justified
in convicting the accused if it is shown by the evidence on record that he had
participated in the
dacoity.30

26

State of Rajasthan v. Kalki and Anr., 1981 CriLJ 1012

27

Leela Ram v. State of Haryana AIR 1999 SC 3717 ; State of U.P. v. M.K. Anthony, 1985
CriLJ 493; Appabhai v. State of Gujarat, 1988 CriLJ 848; Sajjan Kumar v. State of MP, 1999CriLJ
4561

28

State of Himachal Pradesh v. Lekh Raj and Anr., 1999 (9) ST 155

29

Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630

30

Jugal Gope v State of Bihar, AIR 1981 SC 612

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED

ISSUE-II
WHETHER MAJ RANA IS GUILTY OF MURDER?
It is humbly contended that the accused is guilty for committing the offence of
murder under Sec 302, IPC. Sec 302 prescribes the punishment for committing
murder. In order to bring a successful conviction under this charge, however, it is
pertinent to refer to Sec 300, IPC which elucidates the essentials of murder.
A person is guilty of murder if he intentionally causes the death of a person or
causes such bodily injury as he knows, is likely to cause death of that person or
causes such bodily injury, which in the ordinary course of nature results into death
or commits an act so dangerous that it must, in all probability cause death of that
person31. The Prosecution humbly contends that both, the actus reus [2.1] and the
mens rea [2.2] of the crime are established in the instant matter, negating any
claims of private defence [2.3].
2.1 ACTUS REUS OF MURDER IS PROVEN
32

Actus reus is any wrongful act . Thus, in a case of murder, actus reus would be the
physical conduct of the accused that causes death of the victim. In the instant case,
the actus reus is established by way of witness statements [A], forensic report [B]
and ballistic evidence [C].
A. Witness Statements
Bearing in mind that it is not for the prosecution to meet any and every hypothesis
suggested by the accused, howsoever extravagant and fanciful it might be,
humbly submitted

31

Sec 300, IPC

33

it is

32

Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006)

33

State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

before this Honble Court that the circumstantial evidence in the instant matter
shows that within all human probability, the act must have been done by the
accused.

34

st

On the night of 31 December, 2013, 4 well dressed men breached the high-stakes
Octavious vault of Auroras Montecito hotel and casino, post 11 p.m. According to
the confessional statement of PW 2, at around 11.30-12.00 p.m., the accused shot
Brij Gopal (hereinafter referred to as the victim/deceased) in the head with his
special edition Smith and Wesson custom engraved model 60, .38 revolver 35,
reaffirmed by DW 2s statement, who heard the gunshot, alongwith DW 3s oral
testimony, who saw the accused standing over the body.
In a case where murder was caused by gunshot, the witnesses did not actually see
the accused shooting but saw him lowering the gun right after they heard the gunshot, their evidence was held to be as good as that of eye witnesses and conviction
was upheld.36
B. Forensics
The post mortem report becomes important in cases where the cause of death is to
be established and is a matter of controversy. 37 Moreover, it is not possible for the
Prosecution in to explain each and every injury suffered by the witnesses.

38

However, for the sake of convenience, the Prosecution feels obliged to assist this
Honble Court in understanding the intricacies of the post mortem report.

34

Bakshish Singh v State of Punjab, AIR 1971 SC 2016

35

Exhibit 1, Case Details, p. 2

36

Md. Badaruddin v. State of Assam, 1989 Cr LJ 1876 (Gau)

37

Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883

38

Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

ARGUMENTS ADVANCED

i) Size of Wounds
The entry wound in this case is a 15 mm round-shaped one, while the exit wound is
a highly irregular starry shaped wound 33 mm in size. This difference in size and
appearance is because when a bullet makes an entry into the human body, it first
indents and stretches into the skin and subsequently, depending upon the energy,
effects penetration into the soft tissues and/or bones and comes out, causing an exit
wound. After entry of the bullet, the skin partially returns to its original position
and therefore, the size of the entry wound may be smaller than the size of the
bullet.

39

When a projectile transverses the skull and emerges, the aperture in the bone differs
in relation to the outer and inner tables; the defect is larger in the direction in which
the bullet travels.

40

An entrance hole bevels inward and therefore, the entrance is

usually clean cut and the defect on the inner surface of the bone is larger than the
outer surface. An exit hole on the skull is bevelled outward and is larger on the
outer than on the inner surface of the bone,41consistent with the autopsy report in
the instant matter, keeping in mind that the gunshot wound perforated the frontalis
of the deceased, causing instant death.42
ii) Appearance of the Wounds
The autopsy report by Dr Trehan indicates the presence of a wide zone of powder
soot and seared blackened skin around the entrance wound.

43

The

blackening/smudging is due smoke produced buy combustion of gun-powder,


coupled with a small portion of carbonaceous
39

Parikh,CK, Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, p. 4.42 (6th ed

1999)

40

Ibid, p. 4,43

41

Ibid, p. 4.50

42

Annexure 4, Case Details, p. 8

43

ibid

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

10

ARGUMENTS ADVANCED

matter .Even smokeless powder produces a small amount of smoke which may
mark objects at close range.44 Presence of blackening on wounds is thus consistent
with firing from a very close range.

45

Scorching (or burning/charring) is the discolouration of skin resulting from burning


of the flame or hot gases that issue from a firearm.

46

The presence of

scorching/charring is a clear indication that the fatal shots were fired at the
deceased from a very close range.

47

The Prosecution humbly contends that the autopsy report merely demarcates an
upper limit of the proximity of the firearm with the deceased, with a distance of not
more than 15 ft48 between the two. This should not, however in any manner, be
construed to mean that the weapon could not have been placed at a lesser distance.
The primary requirement of pleading the defence of accident is that the act must be
done with proper care and caution.49 Thus, at a close range ,the chances of any
accident50are ruled out, given that the accused is a retired Army officer, who, by
his own account, has a considerable experience in handling weapons and killing
men. In fact , such a short distance would indicate the intention to kill.
C. Ballistics

44

Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal Jurisprudence, p. 71 (2nd ed

1989)

45

Badshah Singh v State, AIR 1958 All 677

46

Supra n 36, p. 70

47

Nath Singh v State of UP, 1980 SCC (Cr) 968

48

Annexure 8, Case Details, p.13

49

Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790

50

Sec 80, IPC

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

11

ARGUMENTS ADVANCED

As per the Forensic Report,

51

and the Panchanama

52

, 4 Hornady XTP .38 caliber

bullets were recovered from Auroras deck. The grooves on one bullet matched the
Smith and Wesson custom engraved model 60 .38 revolver, owned by the accused.
In cases where injuries are caused by fire arms, the opinion of the ballistic expert is
of a considerable importance53 and is sufficient to prove the guilt of the accused. 54
When the direct evidence is well corroborated by the circumstantial evidence and
conforms to the probabilities, there is no reason why it should not be accepted.

55

So far as the question of the 4th bullet is concerned, it is well know that in case of
tandem bullets, the first bullet fails to leave the barrel and is ejected by the
subsequently fired bullet. The bullets are thus ejected one after another,

56

which is

what occurred when DW 4 fired his standard issue Glock .38 handgun 57,
considering that the .38 Live Hornady cartridges
58

recovered could have been used in the Glock as well.59

Therefore, contrary to the claims of the Defence, the presence of an extra bullet
should not be attributed to any investigational lapse on part of the police. On the
other hand, since 2 bullets were fired almost at once, DW 2s testimony as to the
three shots also corroborates with the Prosecutions version of events.
51

Annexure 6, Case Details, p. 12

52

Annexure 3, Case Details, p.7

53

Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601

54

Kalua v. State of UP, AIR 1958 SC 180

55

Field, C.D., Expert Evidence: Medical and Non-Medical, 4th Ed (2007)

56

Supra, n. 41, p.4.42

57

Exhibit 2, Case Details, p. 2

58

Exhibit 3, Case Details, p.2

59

Annexure 6, Case Details, p. 12

MEMORANDUM ON BEHALF OF

THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

12

ARGUMENTS ADVANCED

Arguendo, any lapse on part of the investigation agency would not be fatal to the case.

60

Absence of blood at the spot where the eye-witness saw the accused attacking the
deceased and which was sufficiently explained did not create a doubt in the
prosecution story.

61

Slight variation between ocular evidence and medical evidence

would not be a ground for dismissing the case.62


2.2 MENS REA OF MURDER IS ESTABLISHED
63

Mens rea is considered as guilty intention , which is proved or inferred from the
64

acts of the accused . It is submitted that the intention to kill is established [A] in
light of clear-cut motive of the accused [B]. Arguendo, absence of motive would
not be a sufficient ground to dismiss the case [C].
A. The Accused had intention to kill
It is presumed that every sane person intends the result that his action normally
produces and if a person hits another on a vulnerable part of the body, and death
occurs as a result, the intention of the accused can be no other than to take the life
of the victim and the offence committed amounts to murder.

65

Moreover, the

intention to kill is not required in every case, mere knowledge that natural and
probable consequences of an act would be death will suffice for a conviction under
s. 302 of IPC.

66

60

Amar Malla v State of Tripura, AIR 2002 SC 3052, State of UP v Jagdeo , AIR 2003 SC 660

61

Joginder Singh v State of HP, (1995) 1 Cr LJ 124

62

Ambalal v State of Rajasthan, 2003 Cr LJ 115; Sudhin Chandra Barman v. State of WB Cr LJ 2006 Cal

4656

63

Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4

64

State of Maharashtra v Meyer Hans George, AIR 1965 SC 722

65

(1951) 3 Pepsu LR 635

66

Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED

The intention to kill can be inferred from the murder and nature of the injuries
caused to the victim.67 Causing a serious injury on a vital part of the body of the
deceased with a dangerous weapon must necessarily lead to the inference that the
accused intended to cause death or bodily injury sufficient to cause death of the
68

victim, and it answers to section 300 and is murder. Given that the accused shot
the victim on the head, a vital part of the body, it is logical to conclude that he
intended to cause the death of the victim.
B. The Accused had motive to kill
Sec 8, Evidence Act stipulates that any fact is relevant which shows or constitutes
motive or preparation for any fact in issue or relevant fact. Thus, previous threats or
altercations between parties are admitted to show motive. 69 It is further pertinent to
note that if there is motive in doing an act, then the adequacy of that motive is not
in all cases necessary. Heinous offences have been committed for very slight
motive.

70

As already established in Issue I, the accused was an active participant, or rather,


the instigator of the dacoity committed on Aurora. PW 2s confession clearly
highlights the accuseds need to silence the victim in order to hide his role in the
entire operation and hence, he had the requisite motive to kill the victim.
C. Arguendo, Absence of motive is irrelevant
Assuming for the sake of argument that the accused had no motive, it is humbly
contended that absence of motive is no ground for dismissing the case. Motive is
immaterial so far as the

67
68

Laxman v. State of Maharashtra, AIR 1974 SC 1803

Md. Idrish v. State, 2004 Cr LJ 1724 (Raj); Md. Sharif And Anr. v. Rex, AIR 1950 All 380;
Badri v. State of U.P., AIR 19953 All 189; Dibia v. State of U.P., AIR 1953 All 373, State of
Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609

13

69

Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482

70

State v Dinakar Bandu (1969) 72 Bom LR 905

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013
ARGUMENTS ADVANCED
71

offence is concerned, and need not be established as the mere existence of motive
is by itself, not an incriminating circumstance and cannot take the place of a
proof72.

Therefore, absence of proof of motive, does not break the link in the chain of
circumstances connecting the accused with the crime, nor militates against the
prosecution case and is not fatal as a matter of law . 73 When the circumstantial
evidence on record is sufficient to prove beyond any doubt to prove that it was the
accused and no one else, who intentionally caused the death of the accused then,
motive of the crime need not be proved,

74

as in the current case.

2.3 THE ACCUSED CANNOT AVAIL RIGHT OF PRIVATE DEFENCE


In the given context, the accused claims to avail the right of private defence as per
Sec 96 to 105, IPC which may extend to causing death for the purpose of defending
the body or property of another person. However, one of the foremost principles to
be kept in mind is that there must be an imminent danger giving the signal to act in
exercise of the right of private defence 75 i.e. the necessity must be a present
necessity, whether real or apparent

76

and thus, private defence does not include the

right to launch an offensive attack.77 Furthermore, the

71

Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

72

State of Punjab v Sucha Singh, AIR 2003 SC 1471

73

Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175

74

State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)

75

Hari Singh v State of Rajasthan, AIR 1997 SC 1505

76

Bhanwar Singh v State of MP, (2008) 16 SCC 657

14

77

Shajahan v State of Kerala, (2007) 12 SCC 96

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

1
5

ARGUMENTS ADVANCED
78

right of private defence is available only till the apprehension to the body
79

property exists.
From the statements of all the witnesses, it is evident that the deceased had not
actively either assisted PW 2 in taking a hostage, nor had he presented any
immediate danger to any other person on board. It is amply clear from the
statements of DW 3 and DW 4 that the accused shot the victim after DW 4 had
already apprehended PW 2 i.e. any immediate danger to DW 3 as a hostage had
already subsided.
Furthermore, instead of shooting him on the head, the accused could have fired a
warning shot, or at the very least, fired at some other part of the body, given that in
exercising the right to private defence, one of the most important caveats is that no
more harm than is necessary should be caused.

80

It is thus apparent that the accused

exceeded his right of private defence and any defence of necessity 81 also cannot
be claimed by him as an act of necessity must be done with a bona fide intent and
without any unnecessary force or violence82.
Therefore, it is humbly submitted before this Honble Court that the accused is
guilty for the offence of murder, given that the requisite mens rea and actus reus is
established from the facts of the case, beyond a reasonable doubt.

78

Sec 102, IPC

79

Sec 103 and 105, IPC

80

State of Haryana v Mewa Singh, AIR 1997 SC 1407

81

Sec 81, IPC

82

Gopal Naidu v. Emperor AIR 1923 Mad 523

or

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

16

PRAYER

PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Honble Court be pleased to:

1. Convict Maj (Retd) J.S. Rana for the offence of committing dacoity with
murder under Sections 396/302 of the Indian Penal Code, 1860.

2. Declare a sentence of rigorous imprisonment for a term which may extend


to ten years, and also be liable to fine under Section 396 of the Indian Penal
Code, 1860.

AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: Goa
Date: May 29, 2013

S/d___________
__
PUBLIC
PROSECUTOR

MEMORANDUM ON BEHALF OF THE


PROSECUTION

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