UPES NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION 2014

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE (CBI) GHAZIABAD

SPECIAL CASE NO: 01/2012

COMPLAINANT: - THE STATE OF UTTAR PRADESH THROUGH CBI

V.

ACCUSED: - DR.SUMMET VAID AND DR.MYTHILI VAID, R/OL-32, VIDYA

VIHAR

SECTOR-9, UTTARPRADESH

ON SUBMISSION TO COURT OF SPECIAL JUDICIAL MAGISTRATE (CBI)

WRITTEN SUBMISSION ON BEHALF OF THE DEFENSE

MOST RESPECTFULLY SUBMITTED COUNSEL

ON BEHALF OF THE DEFENSE

-MEMORIAL FOR DEFENSE

1

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................................... 2

A. LIST OF CASES ......................................................................................................................... 2

B. BOOKS AND DICTIONARY .................................................................................................... 4

C. STATUTES REFERRED ........................................................................................................... 4

LIST OF ABBREVIATIONS ................................................................................................................. 5

STATEMENT OF JURISDICTION ....................................................................................................... 6

STATEMENT OF FACTS ..................................................................................................................... 7

ISSUES FOR CONSIDERATION ......................................................................................................... 9

SUMMARY OF ARGUMENTS .......................................................................................................... 10

ARGUMENT ADVANCED DEFENSE .............................................................................................. 11

1. THE ACCUSED SUMEET VAID MYTHILI VAID ARE NOT GUILTY FOR THE TWIN

MURDERS OF Ms. ARTI AND HIS SERVANT VIJAY. .............................................................. 11

1.1. CIRCUMSTANCES IN THE INSTANT CASE DOES NOT PRIMA FACIE PROVES THE GUILT OF ACCUSED. ....................................................................................................... 11

1.2. ESTABLISHMENT OF MOTIVE IS A SINE QUA NON FOR PROVING THE PROSECUTION CASE ................................................................................................................ 15

1.3. CIRCUMSTANTIAL EVIDENCE DOES NOT PROVE THE GUILT OF ACCUSED BEYOND ALL REASONABLE DOUBTS ................................................................................. 17

1.4. THE OPINION OF EXPERT IS INSUFFICIENT TO PROVE GUILT .......................... 20

2. THE ACCUSED IS NOT GULTY FOR TAMPERING AND DESTROYING THE

EVIDENCE OF THE CRIME SCENE ............................................................................................ 23

PRAYER ............................................................................................................................................... 25

2

INDEX OF AUTHORITIES

A. LIST OF CASES

1. Anant Chintaman Lagu v. State of Bombay AIR 1960 SC 500

2. Anant Chintaman Lagu v. State of Bombay; AIR 1960 SC 500,

3. Arun Kumar Banarjee v state ,AIR 1962 SC 504,

4. Ashraf Ali v. Emperor, (43) Indian Cases 241 (para 14)

5. Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501

6. Babu v. State Of Kerela (SC) 2010 (3) UC 1464.

7. Barikanoo v. State of U.P., (1997) 1 Crimes 500 (All)

8. Batapa Bada Seth v. State 1987 Cr LJ 1976 (Ori )

9. Brijpal Singh v. State of U.P., AIR 1994 SC 1624;

10. Chacko Mathai v, State; AIR 1964 Ker 222,

11. Dauji v. State of U.P. (All) 2007 (59) ACC

12. Dilip Kumar Sharma v. State of M.P., AIR 1976 SC 133.

13. Eknath Ganpat Aher v State of Maharshtra (SC) 2010 CRI 767

14. Girja Shankar Mishra v. State of U.P., AIR 1993 SC 2618;

15. Hanumant v. State of M.P., AIR 1952 SC 343;

16. Harindra Nath Bhattacharya v. Kaliram Das, AIR 1972 SC 246;

17. I.Ravindra Reddy v. Shaik Khader Masthan (SC) 2008 (2) J.Cr.C. 1295.

18. Jamnadas Parashram v. State of M.P., AIR 1963 MP 16

19. Kali Ram Vs. State of H.P 1973) 2 SCC 808

20. Kuldip Sham v. State of Punjab1980 Cr.L.J. 71

21. Kusum Ankama Rao v. State of A.P., 2008 SC 2819.

22. M.G. Agarwal Vs. State of Maharashtra AIR 1963 SC 200: (1963)

23. Mahandra Pal Singh v state of U.P, (All)2010 (68) ACC76;

24. Mani ram v. State of Rajasthan; 1993 Cr.L.J 2530

25. Masauddin Ahmed v The State Of Assam, (SC) V(2009) SLT 700

26. Mehrban v. State of M.P., 1996 (10) SCC 615;

27. Mohd. Faizan Ahmad Vs. State of Bihar (2013) 2 SCC 131

28. Munish Mubar v. State of Haryana2012) 10 SCC 464 (para 30)

3

29. Nagendra Bhakta v. Emperor AIR 1934 Cal

30. Narendra Kumar Vs. State (N.C.T. of Delhi) (2012) 7 SCC 171

31. Oma Vs. State of T.N (2013) 3 SCC 440

32. Pandurang Kalu Paul Vs. State of Maharashtra 2002 Indlaw SC 38

33. Pannayar v. State of T.N. by Inspector of Police SC) VII (2009) SLT 34

34. Paramjeet Singh v. State of Uttarakhand AIR 2011 SC 200

35. Ram Swaroop v. State of U.P., AIR 2000 SC 715

36. Ramesh Bhai & Anr. V. State of Rajasthan (SC) CRIMINAL APPEAL NOs. 868-869

OF 2004

37. S.N. Vyas v. State of Rajasthan, AIR 1966 Raj 164

38. Sanjay Kumar Jain v. State of Delhi (SC) 2011 (1) UC 298

39. Sate v. Kamla, AIR 1991 SC 967

40. Senevirante v. king; AIR 1936 PC 289,

41. Shankar Prasad v. State of A.P., (2004) 3 SCC 753, 761 (para 14);

42. Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ;

43. Shivappa v. State of Mysore, AIR 1971 SC 196;

44. State of U.P v Ashok Kuamr Shrivastava AIR 1992 SC 840

45. State of U.P v Ashok Kumar Shrivastava AIR 1992 SC 840

46. State of U.P. v. Ashok Kumar Srivastava 1992 Crl.LJ 1104 1992 Indlaw SC 107)

47. State of U.P. v. Udai Veer Singh, (ALL) 2009 (1) ACR 190.

48. State of U.P. v. Vasudev Rao, (2004) 9 SCC 319, 328 (para 19).

49. State V. Kapil Deo, AIR 1991 SC 2257

50. Sukha Ram v. State of Maharashtra AIR 2007 SC 3050

51. Suresh Budharmal Kalani v. State of Maharashtra, AIR 1998 SC 3258 (para 5);

52. Suresh v. State of Karnataka, (2002) Cr.L.J. 3273 (Kant) (DB)

53. Syed Hakkim & Anr. V. State rep. By DSP, Kaur, District T.N. SLP (Crl.) No. 522 of

2008 decided on 23 February, 2009

54. Veera Reddy v. State of A.P. and Ors, AIR 1990 SC 79 ,

55. Waqar v. State of U.P., (2011) 3 SCC 306

4

B. BOOKS AND DICTIONARY

1. NELSONS, R.A., INDIAN PENAL CODE BY SK SAVARIA, 10TH EDITION

LEXIX NEXIS BUUTERWORTHS WADHWA NAGPUR

2. RATANLAL AND DHIRAJ LAL, THE CODE OF CRIMINAL PROCEDURE, ,

18TH

EDITION 2006, WADHWA NAGPUR

3. MONIR, M., LAW OF EVIDENCE, 17TH EDITION, UNIVERSAL LAW

PUBLISHING

4. MISHRA, S.N., THE CODE OF CRIMINAL PROCEDURE, 1973

5. TANDONS CRIMINAL PROCEDURE CODE, 16TH EDITION, ALLAHABAD

AGENCY

6. MISHRA S.N, INDIAN PENAL CODE 17TH EDITION, CENTRAL LAW

PUBLICATION

7. LAL,BATUK, LAW OF EVIDENCE, 19TH EDITION, CENTRAL LAW AGENCY

C. STATUTES REFERRED

1. INDIAN PENAL CODE, 1860

2. CRIMINAL PROCEDURE CODE, 1973

3. INDIAN EVIDENCE ACT, 1872

5

LIST OF ABBREVIATIONS

& ----- And

A.I.R. ----- All India Reporters

All. ----- Allahabad

Bom ----- Bombay

CCSC ----- Criminal Cases Supreme Court

Chh ----- Chattishgarh

CriLJ ----- Criminal Law journal

CrPC ----- Criminal Procedure Code

Dist. ----- District

Edn. ----- Edition

Honble ----- Honourable

HOD ----- Head of the Department

IPC ----- Indian Penal Code

IEA ----- Indian Evidence act

Ors. ----- Others

Ori. ----- Orissa

Pat. ----- Patna

Para. ----- Paragraph

MPLJ ----- Madhya Pradesh Law Journal

H.P. ----- Himachal Pradesh

S.C. ----- Supreme Court

S.C.C. ----- Supreme Court Cases

SCR ----- Supreme Court Reporter

6

STATEMENT OF JURISDICTION

The defense hereby most humbly submits before the Honble Special Judicial

Magistrate (CBI) Ghaziabad, U.P.M under section 177 of the Cr.P.C, 1973, the memorandum

for the defense in reply to the complaint filed by the complainant in the Special Case No.

01/2012.

The present memorandum sets forth the facts, contentions and arguments in the present case.

7

STATEMENT OF FACTS

1. That, Ms. Aarti daughter of Dr. Sumeet Vaid and Dr. Mythili Vaid, R/o L-32 Vidya

Vihar, Sec-9, Noida was found murdered in the morning of 16.05.2012 in her room.

On 16.05.2012, Aartis father viz. Dr. Sumeet Vaid made a written complaint to the

police and alleged that his servant had killed his daughter in the night of

15/16.05.2012. However, the body of Vijay, who was alleged to have killed Aarti,

was recovered on 17.05.2012 from the terrace of the residence of Dr. Sumeet Vaid.

2. That on the basis of written complaint received from Dr. Sumit Vaid, a case under

crime no. 695/12 was registerd u/s 302 IPC at Polic Station, Sect-10 Noida on

16.05.2012. Govt. Of Uttar Pradesh issued a notification no 1937-VI- P-3-2012-

15(48) P/2012, Lucknow dated 29.05.2012 giving consent for transfer of investigation

of this case to CBI.

3. That the post mortem of deceased Aarti was conducted by Dr. Shushil Kumar on

16.05.2012.

4. That, the scene of the crime was inspected by the Investigating officer on 16.05.2012.

During inspection of the scene of crime, U.P. Police observed that the flat of Dr.

Sumeet Vaid was secure from all sides and there were no signs of forcible entry from

outside. The police personnel after investigation, after inspecting the scene of crime,

took photographs of the scene of crime and also took various items in their

possession. There included the blood soaked clothing and bedding of the victim Aarti,

few bottles of cold drinks and a Ballantine Scotch whisky bottle which was seized

from the dining table of Dr. Summet Vaid.

5. That Dr. Sumeet Vaid was arrested on 23.05.2012 and produced in the court at

Gaziabad on 24.05.2012 the court granted three days police custody which was

extended till 30.05.2012. Thereafter, Dr. Sumeet Vaid was sent to judicial custody on

30.05.2012.

6. That the CBI court had convicted Dr. Sumeet Vaid for committing both the murders

and destroying evidence. He was sentenced for life imprisonment by the court.

Subsequently, Dr. Sumeet Vaid has obtained an order for trial from the High Court

and was remitted for trial.

7. Hence, the present case is before the Court of Special Judicial Magistrate(CBI),

Gaziabad, for re-trial.

8

STATEMENT OF CHARGES

The accused has been charged under the following section of Indian Penal Code:

1. Section 302 r/w 34 of the Indian Penal Code, 1860

2. Section 201 of the Indian Penal Code, 1860

3. Section 203 of the Indian Penal Code, 1860

9

ISSUES FOR CONSIDERATION

1. WHETHER THE ACCUSED SUMEET VAID IS GUILTY FOR THE MURDERS

OF Ms. AARTI AND HIS SERVANT UNDER SECTION 302 OF INDIAN PENAL

CODE 1860?

2. WHETHER THE ACCUSED IS GULTY FOR TAMPERING AND DESTROYING

THE EVIDENCE OF THE CRIME SCENE UNDER SECTION 201/203 OF

INDIAN PENAL CODE, 1860?

10

SUMMARY OF ARGUMENTS

1. THAT THE ACCUSED SUMEET VAID MYTHILI VAID ARE NOT GUILTY

FOR THE TWIN MURDERS OF Ms. ARTI AND HIS SERVANT VIJAY.

It is most humbly submitted that, Dr. Sumeed Vaid (hereinafter will be referred to as

accused no. 1) and Dr. Mythili Vaid (hereinafter will be referred to as accused no. 2) are not

guilty for the alleged twin murders of their daughter Ms. Aarti and their servant Mr. Vijay

under Section 302 of the Indian Penal Code, 1860.

It is further submitted that, the case is based upon the circumstantial evidence, as there

are no direct evidence as to prove the guilt of the accused no. 1 and accused no.2.

Furthermore, circumstantial evidence collected during investigation has critical and

substantial gaps and there is absence of clear cut motive and an incomplete understanding of

sequence of events.

2. THAT THE ACCUSED IS NOT GULTY FOR TAMPERING AND

DESTROYING THE EVIDENCE OF THE CRIME SCENE

It is most humbly submitted that, the accused no. 1 and accused no.2 were not

involved in the instances of tampering and destroying of evidences related to the said crime,

for the purpose to shield themselves from the punishment under section 302 of Indian Penal

Code, as well as misleading the Court by creating misconceptions about the murders.

Therefore, the accused no. 1 and accused no. 2 are not guilty under section 201 and 203 of

the Indian Penal Code, for causing disappearance of evidence of offence and for giving false

information with respect to the offence committed.

11

ARGUMENT ADVANCED DEFENSE

1. THE ACCUSED SUMEET VAID MYTHILI VAID ARE NOT GUILTY FOR

THE TWIN MURDERS OF Ms. ARTI AND HIS SERVANT VIJAY.

It is most humbly submitted that, Dr. Sumeed Vaid (hereinafter will be referred to as

accused no. 1) and Dr. Mythili Vaid (hereinafter will be referred to as accused no. 2) are not

guilty for the alleged twin murders of their daughter Ms. Aarti and their servant Mr. Vijay

under Section 302 of the Indian Penal Code, 1860.

It is further submitted that, the case is based upon the circumstantial evidence, as there

are no direct evidence as to prove the guilt of the accused no. 1 and accused no.2.

Furthermore, circumstantial evidence collected during investigation has critical and

substantial gaps and there is absence of clear cut motive and an incomplete understanding of

sequence of events.

1.1. CIRCUMSTANCES IN THE INSTANT CASE DOES NOT PRIMA FACIE

PROVES THE GUILT OF ACCUSED.

It is most humbly contended that, the hypothesis laid down by the prosecution, on the

basis of investigation lacks the consistency as to the occurrence of the events and also fall

short in ascertaining the chain of events appropriately and accurately. Furthermore, the

credibility of witness and evidence has to be tested on the touchstone of truthfulness and

trustworthiness.1

In Ramesh Bhai & Anr. V. State of Rajasthan2, it was held that, there is no doubt

that conviction can be based on circumstantial evidence but it should be tested by the touch

stone of law. In cases where evidence of circumstantial nature, than the circumstances from

which the conclusion of guilt is to be drawn should be the first instance be fully established.3

1 Girja Prasad v. State of M.P., AIR 2007 SC 3106

2 (SC) CRIMINAL APPEAL NOs. 868-869 OF 2004

3 Amitava Banerjee @ Amit @ Bappa Banerjee v. State of West Bengal, (SC) 2011 J.Cr.C 1385; Abubucker

Siddiqui v. State represented by the D.S.P, CBI/SCB/Chennai, Tamil Nadu (SC)

12

It is a case based on circumstantial evidence regarding which there are innumerable

judicial pronouncements crystallizing law succinctly and lucidly and the trite law which now

has emerged is that in cases based on circumstantial evidence, each ring of circumstance

woven together must present a complete chain and it must be a pointer only to the guilt of the

accused without admitting any other hypothesis or exception. Unless these two facets are

established, in case rested on circumstantial evidence, guilt of the accused cannot be taken to

be established.4 Prosecution miserably failed to prove the guilt of the accused.

5

It is further contended that, in case of circumstantial evidence when chain of

circumstance is incomplete in that case conviction based there upon is not and the accused

are entitled for acquittal.6 The argument is further strengthened by the case of Sanjay Kumar

Jain v. State of Delhi7, wherein, on the basis of material contradictions in the chain of events,

it was held that in a circumstantial evidence the chain of circumstantial evidence must be

complete, if there is a gap or irregularity, it inspires no confidence and such conviction under

Section 302 I.P.C. is not sustainable.

It is further stated that, there are various clues which signify the material

contradictions in the sequence or chain of event, and evidently points towards the innocence

of accused. The clues include non identification of the figure prints on scotch bottle8, the

possibility of neck being cut by khukri cannot be ruled out9.

Moreover, the investigation of CBI was also diverted into three possible angles, i.e.,

involvement of intruders other than servants, involvements of servants and involvement of

4 Cr.A. No. 7757 of 2009 Connected with Cr.A. No. 7825 of 2009 Connected with Cr.A. No. 7398 of 2009

Connected with Cr.A. No. 7895 of 2009

5 (1984) 4 Supreme Court Cases 116 1984 Indlaw SC 432, 2002 (8) SCC 45 2002 Indlaw SC 1786, 2002 (2)

SCC 490 2002 Indlaw SC 38, (2008) 3 SCC (Cri) 39, (2008) 3 SCC 210 2008 Indlaw SC 42, 2013 S.A.R.

(Criminal) 426 and 2013 SAR (Criminal) 731 in support of his contention.

6 Lala Ram & Others v. State of U.P. All (2009) ACR 1043

7 (SC) 2011 (1) UC 298

8 Paragraph no. 22 (iii)(v), Factsheet

9 Paragraph no. 22 (iii)(vii), Factsheet

13

parents. It is therefore evident that, none of the possibilities were neither fully proved nor

completely discarded. The argument gains strength from the fact that the grill gate was

latched form outside, and therefore, the possibility of intruders cannot be completely

neglected. Also no biological fluid or DNA could be recovered from the golf stick handed

over by accused no.1.10

In support of the above argument, In State of U.P. v. Ashok Kumar Srivastava11

, it

was pointed out that great care must be taken in evaluating circumstantial evidence and if the

evidence relied on is reasonably capable of two or more inferences; the one in favour of the

accused must be accepted. It was also pointed out that the circumstances relied upon must be

found to have been fully established and the cumulative effect of all the facts so established

must be consistent only with the hypothesis of guilt.

Moreover, mere recovery of golf stick, specifically without any blood stains or figure

prints on it, does not ensure the guilt of the accused no. 1 and accused no.2. in support of the

abover argument, in the case of Pandurang Kalu Paul Vs. State of Maharashtra12

the

Hon'ble Supreme Court also discussed the law relating to discovery of fact as laid down u/s

27 of the Evidence Act, 1872 and held that recovery or even production of object by itself

need not necessarily result in discovery of a fact.

In Paramjeet Singh v. State of Uttarakhand,13

it has been held by the apex court as

under:-

"14. Though a conviction may be based solely on circumstantial evidence, this is something

that the court must bear in mind while deciding a case involving the commission of a serious

offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR

1984 SC 1622 ;1984 Indlaw SC 432, this Court observed that it is well settled that the

10 Paragraph no. 16(vii), Factsheet

11 (1992 Crl.LJ 1104 1992 Indlaw SC 107)

12 2002 Indlaw SC 38

13 AIR 2011 SC 200 see also Veera Reddy v. State of A.P. and Ors, AIR 1990 SC 79 ,1989 Indlaw SC 31;

Hanumant v. State of M.P., AIR 1952 SC 343; Kusum Ankama Rao v. State of A.P., 2008 SC 2819.

14

prosecution's case must stand or fall on its own legs and cannot derive any strength from the

weakness of the defence put up by the accused. However, a false defence may be called into

aid only to lend assurance to the court where various links in the chain

of circumstantial evidence are in themselves complete. This Court also discussed the nature,

character and essential proof required in a criminal case which rests

on circumstantial evidence alone and held as under:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully

established;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the

accused, that is to say, they should not be explainable on any other hypothesis except that the

accused is guilty;

(3) The circumstances should be of a conclusive nature and tendency;

(4) They should exclude every possible hypothesis except the one to be proved; and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for

the conclusion consistent with the innocence of the accused and must show that in all human

probability the act must have been done by the accused."

Once again in Syed Hakkim & Anr. V. State rep. By DSP, Kaur, District T.N.14

,

Conviction can only be based on circumstantial evidence unless complete chain of

circumstances established and proved.15

State of U.P v Ashok Kuamr Shrivastava16

, Supreme Court has, time out of number,

observed that, while appreciating circumstantial evidence, the Court must adopt a very

cautious approach and should record a conviction only if all the links in chain are complete

pointing to the guilt of the accused and every hypothesis of innocence is capable of being

14 SLP (Crl.) No. 522 of 2008 decided on 23 February, 2009

15 (SC) 2008 (5) AJW 601

16 AIR 1992 SC 840

15

negatived on evidence. Great effort must be taken in evaluating circumstantial evidence, and

if the evidence realised on it is reasonably capable of two inferences, the one in favour of the

accused must be accepted. The circumstance relied upon must be found to have been fully

established and the cumulative effects of all the facts so established must be consistent only

with the hypothesis of guilt but this is not to say that the prosecution must meet any end every

hypothesis put forward by the accused, however, far faced and fanciful it might me.

On a sum total of the aforesaid decisions, it is clear that in a case where the

prosecution was not able to produce any eye-witness it was the duty of the prosecution to

prove that the evidence so came up at the trial makes a complete chain of circumstance which

would raise the pointer to the accused and the accused only. It would also suggest that no one

else could be involved in such incident. If the test is positive, the conviction is a matter of

course.17

It is well settled and trite that the prosecution must stand or fall on its own legs and it

cannot derive any strength from the weakness of the defence.18

Therefore, in light of the

abovementioned authorities and the arguments put forward, the hypothesis on facts along

with the chain of circumstances is inappropriate to prove the guilt of the accused no. 1 and

accused no. 2. Hence, the accused shall not be convicted merely on the basis of circumstantial

evidence.

1.2. ESTABLISHMENT OF MOTIVE IS A SINE QUA NON FOR PROVING

THE PROSECUTION CASE

It is most humbly submitted that, motive plays an important role and becomes a

compelling force to commit a crime, and, therefore, motive behind the crime becomes a

relevant factor.19

Normally there is a motive behind every criminal case.20

In a case which

17 2014 Indlaw CAL 54; C.R.A. 302/2012, 28 January 2014

18 Cr.A. No. 804 of 2013 Kerala High Court 11 October 2013; Sharad Birdhichand Sardar Vs. State of

Maharashtra, AIR 1984 SC 1622

19 Suresh Chandra Bahri v. Sate of Bihar, AIR 1994 SC 2420; see also State of Bengal v. Mohd. Khalid, AIR

1995 SC 785; Mehrban v. State of M.P., 1996 (10) SCC 615; Girja Shankar Mishra v. State of U.P., AIR 1993

SC 2618; Brijpal Singh v. State of U.P., AIR 1994 SC 1624; Dilip Kumar Sharma v. State of M.P., AIR 1976

SC 133.

16

is based upon circumstantial evidence, motive for committing the crime on the part of the

accused assumes importance.21

Evidently, if a motive is absent an important source of

corroboration is blocked.22

In Pannayar v. State of T.N. by Inspector of Police23

, it was held that, absence of

motive in circumstantial evidence is more favourable to defence. Also in Munish Mubar

v. State of Haryana24

, it was held that, in case of circumstantial evidence motive assumes

great significance and importance absence of motive would put the Court on its guard

and cause to scrutinize each piece of evidence very closely in order to ensure that

suspicion, emotion or conjecture do not make place of proof. Again in Babu v. State Of

Kerela25

, it was held that, in a murder trial absence of motive in a case depending on

circumstantial evidence is a factor that weights in favour of accused.

Furthermore, in the case of Kuldip Sham v. State of Punjab26

, conduct of an

accused prior to the incident contemporaneous with it or subsequent to it is relevant under

Section 8 of Evidence Act, 1872. In the instant case, the accused no. 1 assisted in every

activity and at every step of investigation. The idea gains more strength by the fact that, a

written complaint was registered by the accused no. 1 on 16/05/2012. Moreover, the

accused no. 1 also handed over the second golf stick to the investigating agency,

voluntarily.

Another argument in favour of existence of motive as sine qua non in criminal

cases, appeared in the case of Sukha Ram v. State of Maharashtra27

, wherein it was held

20 Barikanoo v. State of U.P., (1997) 1 Crimes 500 (All)

21 Waqar v. State of U.P., (2011) 3 SCC 306

22 Dauji v. State of U.P. (All) 2007 (59) ACC

23 (SC) VII (2009) SLT 34

24 (2012) 10 SCC 464 (para 30)

25 (SC) 2010 (3) UC 1464.

26 1980 Cr.L.J. 71

27 AIR 2007 SC 3050

17

that, question of motive is of great importance in the case of circumstantial evidence, and

where there is absence of such motive, the Court should carefully examine the absence of

motive as a circumstance in favour of accused.

In the instant case, the prosecutions chain of events and facts produced in its

hypothesis does not make any significant effort towards the existence of a strong motive

of the accused no. 1 and accused no. 2 for committing the crime. Therefore, in light of the

above cited arguments and authorities, it is submitted that, the absence of motive shall be

considered as vital for deciding the case. Moreover, the absence of motive is adequate to

hold the innocence of the accused no. 1 and 2.

1.3. CIRCUMSTANTIAL EVIDENCE DOES NOT PROVE THE GUILT OF

ACCUSED BEYOND ALL REASONABLE DOUBTS

It is most humbly submitted that, proof beyond all reasonable doubt is a sine qua

non for establishing the guilt of the accused in the criminal justice system. Conviction in

serious offences must be drawn on true and possible assessment of evidence and cannot

be based on conjecture and surmises.28

In I.Ravindra Reddy v. Shaik Khader Masthan,29

it was held that, circumstances

from which an inference as to guilt of accused is drawn have to be proved beyond

reasonable doubt and have to shown to be closely connected with the principal fact sought

to be inferred from those circumstances.

In Narendra Kumar Vs. State (N.C.T. of Delhi)30

it has been held that the

prosecution has to prove its own case beyond the reasonable doubts and cannot take

support from the weakness of the case of defence and hence there must be proper and

legal evidence to record the conviction of the accused. In the instant case, circumstantial

28 State of U.P. v. Udai Veer Singh, (ALL) 2009 (1) ACR 190.

29 (SC) 2008 (2) J.Cr.C. 1295.

30 (2012) 7 SCC 171

18

evidence collected during investigation has critical and substantial gaps and there is

absence of clear cut motive and an incomplete understanding of sequence of events.

Material doubts involvement of intruders other than servants, involvements of

servants and involvement of parents are jumbled. It is therefore evident that, none of the

possibilities were neither fully proved nor completely discarded. The argument gains

strength from the fact that the grill gate was latched form outside, and therefore, the

possibility of intruders cannot be completely neglected. Also no biological fluid or DNA

could be recovered from the golf stick handed over by accused no.1.31

Moreover, The

clues include non identification of the figure prints on scotch bottle32

, the possibility of

neck being cut by khukri cannot be ruled out33

.

Lately, in Mohd. Faizan Ahmad Vs. State of Bihar34, the Honble Apex Court

has again cautioned by making observation that suspicion however grave cannot take the

place of proof. Grave violence to basic tenets of criminal jurisprudence would occur if in

absence of any credible evidence, criminal courts are swayed by gravity of offence and

proceed to hand out punishment on that basis.

The observations made by the Honble Supreme Court in Oma Vs. State of T.N.35

that a judge trying a criminal case has a sacred duty to appreciate the evidence in a

seemly manner and is not to be governed by any kind of individual philosophy, abstract

concepts, conjectures and surmises and should never be influenced by some observations

or speeches made in certain quarter of the society but not in binding judicial precedents

have also to be kept in mind.

31 Paragraph no. 16(vii), Factsheet

32 Paragraph no. 22 (iii)(v), Factsheet

33 Paragraph no. 22 (iii)(vii), Factsheet

34 (2013) 2 SCC 131

35 (2013) 3 SCC 440

19

It is further submitted that, when in a criminal case, there is a conflict between

presumption of innocence and any other presumption, the former must prevail.36

It is

further submitted that, a presumption can be drawn only form the facts and not from other

presumptions by a process of probable and logical reasoning.37

A presumption of fact

must be such as would naturally arise. Regard must be had to all the material

circumstances before determining whether presumption could justifiably be drawn.38

The

presumption is stronger when the discovery of the fruits of the crime is made immediately

after the crime is committed.39

Therefore, upon drawing the analogy beyond reasonable

doubt, benefit of doubt shall go the accused.

In M.G. Agarwal Vs. State of Maharashtra40

, it was observed by the,

Constitution Bench of the Honble Supreme Court as It is a well established rule in

criminal jurisprudence that circumstantial evidence can be reasonably made the basis of

an accused persons conviction if it is of such a character that it is wholly inconsistent

with the innocence of the accused and is consistent only with his guilt. If the

circumstances proved in the case are consistent either with the innocence of the accused

or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a

certain fact is proved, the question arises whether that fact leads to the inference of guilt

of the accused person or not, and in dealing with this aspect of the problem, the doctrine

of benefit of doubt would apply and an inference of guilt can be drawn only if the proved

fact is wholly inconsistent with the innocence of the accused and is consistent only with

his guilt. The same reasoning was applied in Eknath Ganpat Aher v State of

36 Ashraf Ali v. Emperor, (43) Indian Cases 241 (para 14)

37 Suresh Budharmal Kalani v. State of Maharashtra, AIR 1998 SC 3258 (para 5); Shankar Prasad v. State of

A.P., (2004) 3 SCC 753, 761 (para 14); State of U.P. v. Vasudev Rao, (2004) 9 SCC 319, 328 (para 19).

38 Jamnadas Parashram v. State of M.P., AIR 1963 MP 16

39 Shivappa v. State of Mysore, AIR 1971 SC 196; Harindra Nath Bhattacharya v. Kaliram Das, AIR 1972 SC

246; Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501

40 AIR 1963 SC 200: (1963)

20

Maharashtra41

, wherein it was held that, unless until a specific role of accused in incident

is not proved then the accused is entitle to benefit of doubt.

Kali Ram Vs. State of H.P.42

that if reasonable doubt arises regarding the guilt of

accused, the benefit of that cannot be withheld from him. If crime is to be punished

gossamer web niceties must yield to realistic appraisals. The test that the accused must be

guilty and not may be guilty should not be confused with exclusion of every contrary

possibility.

Therefore, there must be a chain of evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with the innocence of the accused and it

must be such as to show that within all human probability the act must have been done by

the accused.43

In the instant case, the chain of circumstance is insufficient to prove the

guilt of accused no. 1 and 2 beyond reasonable doubt, and, has also failed to establish a

clear motive of committing the crime. Hence, in the light of the above cited authorities

and arguments advanced, the accused no. 1 and 2 are entitled for the benefit of doubt, as

their guilt is not proved beyond all reasonable doubts.

1.4. THE OPINION OF EXPERT IS INSUFFICIENT TO PROVE GUILT

An expert witness is one who has devoted time and study to special branch of

learning, and is especially skilled on those points on which he is asked to state his

opinion.

In Savita Devi and Others v. State of U.P and others44

During trial the opinion of

doctor is considered only as an opinion evidence under Section 45 of Evidence Act which

is relevant but not conclusive and the court is free to judicially estimate value of the

41 (SC) 2010 CRI 767 see also Mahandra Pal Singh v state of U.P, (All)2010 (68) ACC76; Masauddin Ahmed v

The State Of Assam, (SC) V(2009) SLT 700

42 (1973) 2 SCC 808

43 Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, (AIR 1952 SC 343 1952 Indlaw SC 89)

44 (All)2009 (2) ACR2036

21

doctor opinion evidence by examining how well it can explain and clarity the facts in

issue.

The opinion of the expert is only opinion evidence. It does not help the court in

interpretation.45

The Court is not bound to follow it blindly. The expert cannot acts as a

judge and the final decision is made by the judge.46

Medical evidence is hardly conclusive and decisive, because it is primarily an

evidence of opinion and not a fact. To reply upon the findings of the medical person who

conducted the post-mortem and the chemical analyst as decisive of the matter is to render

the other evidence entirely fruitless. The court has to consider not merely medical

evidence but also the other evidence and circumstances appearing on the point.47

The

doctors evidence can never be absolutely certain on the point of time, so far as duration

of injuries are concerned.48

Anant Chintaman Lagu v. State of Bombay49

, in their Lordships of the SC

observed

to rely upon the finding of the medical man who conducted the post mortem and

of the chemical analyser as decisive of the matter is to render the other evidence entirely

fruitless. While the circumstance often speaks with unerring certainty, the autopsy and

chemical analysis taken by them may be most misleading. No doubt, due weight must be

given at such examinations. But, bearing in mind the difficult task which the man of

medicine performs and the limitations under which he works, his failure should not be

45 Forest Range Oficcer v. P. Mohammed Ali, AIR 1994 SC 120 (para 8)

46 Law Society of India v. Fertilizers & Chemical Travencore Ltd., AIR 1994 Ker 308 (paras 185 & 186)

47 Arun Kumar Banarjee v state ,AIR 1962 SC 504, relying on Stephen Senevirante v. king; AIR 1936 PC 289,

Anant Chintaman Lagu v. State of Bombay; AIR 1960 SC 500, Chacko Mathai v, State; AIR 1964 Ker 222,

Mani ram v. State of Rajasthan; 1993 Cr.L.J 2530

48 Ram Swaroop v. State of U.P., AIR 2000 SC 715

49 AIR 1960 SC 500

22

taken as the end of the case, for on good and probative circumstances, an irresistible

inference guilt can be drawn.

Medical witnesses called as experts opinions cannot be always be in a position to

form definite opinions as to the precise sufficiency of specific injuries cause to death.

Keeping in view the present knowledge of human physiology and medical sciences,

Judges on various occasions did not approve of dogmatic expression of opinions.50

State of U.P v Ashok Kumar Shrivastava51

, Supreme Court has, time out of

number, observed that, while appreciating circumstantial evidence, the Court must adopt

a very cautious approach and should record a conviction only if all the links in chain are

complete pointing to the guilt of the accused and every hypothesis of innocence is capable

of being negatived on evidence. Great effort must be taken in evaluating circumstantial

evidence, and if the evidence realised on it is reasonably capable of two inferences, the

one in favour of the accused must be accepted. The circumstance relied upon must be

found to have been fully established and the cumulative effects of all the facts so

established must be consistent only with the hypothesis of guilt but this is not to say that

the prosecution must meet any end every hypothesis put forward by the accused,

however, far faced and fanciful it might me.

In the instant case, the medical opinion does not conclusively identify the figure

prints on the scotch bottle. Moreover, the FSIs opinion that, the murder was committed

by someone very close to Aarti is in itself vague and misleading. The dual characteristic

of the medical opinion, with regard to the use of khukri or medical surgical knife also

creates doubt. Therefore, amongst the possibility of error and with such jumbled

instances, especially in such cases of circumstantial evidences, the opinion of expert

cannot be called as trustworthy to decide the guilt of the accused.

Therefore, in light of the above cited case precedents, it is submitted that, teh due

process of law must remain sacrosanct, as must be the principle that wrongly convicting a

50 S.N. Vyas v. State of Rajasthan, AIR 1966 Raj 164

51 AIR 1992 SC 840

23

person is much worse than allowing some of the guilty to escape, merely on the basis of

weak and misleading medical opinions.

2. THE ACCUSED IS NOT GULTY FOR TAMPERING AND DESTROYING

THE EVIDENCE OF THE CRIME SCENE

It is most humbly submitted that, the accused no. 1 and accused no.2 were not

involved in the instances of tampering and destroying of evidences related to the said

crime, for the purpose to shield themselves from the punishment under section 302 of

Indian Penal Code, as well as misleading the Court by creating misconceptions about

the murders. Therefore, the accused no. 1 and accused no. 2 are not guilty under

section 201 and 203 of the Indian Penal Code, for causing disappearance of evidence

of offence and for giving false information with respect to the offence committed.

In the case of Sate v. Kamla,52

the Supreme Court refused to convict the accused

under section 201 because of the lack of unambiguous proof, even though the body of

the deceased had been exhumed on the basis of information provided by him which

would not in itself establish that he himself had buried the body there.

Furthermore, in the case of Batapa Bada Seth v. State53

, it has been held that

allegation for removing a dead body from one place to another does not necessarily

mean causing disappearance of evidence. For a conviction under this section it is

essential to prove all the requirements of the offences as given by the section. Prior to

this case, the said rule was also laid down in the case of Nagendra Bhakta v.

Emperor54

In the instant case the prosecution could not prove beyond doubt a case of

murder and disappearance of evidence, even though the body of the deceased Aarti

52 AIR 1991 SC 967

53 1987 Cr LJ 1976 (Ori )

54 AIR 1934 Cal 144 also relied upon in Upendra Chandra Poddar v. Emperor, AIR 1941 Cal 456

24

and servant Vijay was found in the house of accused. Therefore this section would not

apply.

It strongly contended the fact that, since the accused no. 1 and 2 are not

proved guilty beyond reasonable doubt under the charges of Section 302 of IPC,

1860, recording of guilt under section 201/34 of the IPC, which are the ancillary

charges, are not of much consequence. So the accused person are entitled to be

acquitted on the charges under section 201/34 of IPC, 1860 as well. The similar

situation was clarified in the cases of Ambika Singh v. State of Bihar55

and

Chandrakant Jha v. State of Bihar56

. The charge under section 201 IPC, 1860, namely

the destruction of evidence relating to the commission of and offence is intrinsically

interlinked with the first head of charge under Section 302, IPC, 1860 and it is

submitted that, if the first charge fails, automatically the conviction under the second

head would also have to go.57

Further, section 201 of IPC would not apply where the prosecution could not

prove beyond doubt a case of murder and disappearance of evidence, even though the

dead body was found in the house of the accused.58

55 (2003) CR.L.J. 4051 (Pat)

56 (2000) (1) PLJR 375

57 Suresh v. State of Karnataka, (2002) Cr.L.J. 3273 (Kant) (DB)

58 State V. Kapil Deo, AIR 1991 SC 2257

25

PRAYER

Wherefore, in the light of above, it is most humbly prayed that this Honble Court

may be pleased to allow the appeal and adjudge and declare that:

1. The accused shall not be punished under section 302 read with section 34 of

Indian Penal Code, 1860.

2. The accused shall not be punished under section 201 and 203 read with section 34

of Indian Penal Code, 1860.

The court may also be pleased to pass any order which the court may deem fit in light of

justice, equity and good conscience.

All of which is respectfully submitted.

Place: GHAZIABAD

Date: February 18, 2014 Counsel for Defense