memorial shashi tharur

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT, 2014

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW CURRICULUM MOOT COURT,2014

IN THE HON’BLE SESSION COURT

CRIMINAL CASE. NO. …/2014

[UNDER SEC. 302, SEC. 498A IN ALTERNATIVE SEC. 306 OF THE INDIAN PENAL CODE,

1860]

ADITI YADAV

PROSECUTION

V.

SANJAY YADAV

DEFENCE

MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF THE PROSECUTION

GROUP NO. 32

ROLL NO. 537


TABLE OF CONTENTSINDEX OF AUTHORITIES........................................................................................................ii

STATEMENT OF JURISDICTION............................................................................................v

STATEMENT OF FACTS..........................................................................................................vi

ISSUES RAISED........................................................................................................................viii

STATEMENT OF CHARGES....................................................................................................ix

SUMMARY OF ARGUMENTS..................................................................................................x

1. THAT SANJAY IS LIABLE TO BE CONVICTED UNDER SECTION 498A OF THE

INDIAN PENAL CODE, 1860......................................................................................................1

1.1. THE ESSENTIAL REQUISITES FOR CONVICTION UNDER SECTION 498A......................1

1.2. ACCUSED SUBJECTED HIS WIFE ‘RESHMA’ WITH CRUELTY......................................2

2. THAT SANJAY IS LIABLE TO BE CONVICTED UNDER SECTION 306 OF THE

INDIAN PENAL CODE, 1860......................................................................................................4

2.1. THE ESSENTIAL REQUISITES FOR CONVICTION UNDER SECTION 306 OF THE

INDIAN PENAL CODE, 1860........................................................................................................4

2.2. RESHMA HAS COMMITTED SUICIDE...............................................................................4

2.3. SECTION 113-A OF THE INDIAN EVIDENCE ACT, 1862 IS ATTRACTED IN THE

INSTANT CASE.............................................................................................................................5

PRAYER......................................................................................................................................xii

i


LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. Anr. Another

3. AP Andhra Pradesh

4. Cal. Calcutta

5. CWN Calcutta Weekly Note

6. Del Delhi

7. Govt. Government

8. HC High Court

9. ILR Indian Law Reporter

10. Ker. Kerala

11. Mad. Madras

12. Mah LJ Maharashtra Law Journal

13. MP LJ Madhya Pradesh Law Journal

14. Ors. Others

15. P&H Punjab and Haryana

16 para. Paragraph

17. Sec. Section

18. S.C. Supreme Court Cases

19. Vol. Volume

ii


INDEX OF AUTHORITIES

Cases

Collins v. Collins, (1953) 2 All ER 966..........................................................................................1

Jagdeesh Chand v. State of Haryana, 1988 Cr.L.J. 1048................................................................5

Jatin Sharma v. Sonali Chauhan, AIR 1996 SC 230.......................................................................4

Kisan @ Pilaji Gangaram Khatale and Ors. v. The State of Maharashtra, 2007 Cr.L.J. 130..........4

Kusum Lata v. Kampa, AIR 1965 All. 280.....................................................................................2

Mary v. Raghwan, AIR 1979 MP 40...............................................................................................3

Neni v. State of Rajasthan, 2006 Cr.L.J. 4527................................................................................6

Praveen Mehta v. Inderjeet Mehta, AIR 2002 SC 2582.................................................................2

Ramesh Baburao Patil v. State of Madhya Pradesh, 2002 Cr.L.J. 3364........................................6

Rup Lal v. Kartaro, 1970 J&K 158.................................................................................................1

Saptani v. Jagdish, AIR 1987 Del. 63.............................................................................................3

Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121......................................................................1

Smt . Arpita Chakraborty v. Dr . AmitChakraborty, 2008(3) CHN423..........................................3

Soosannamma v. Vergeese, AIR 1957 SC 27..................................................................................2

State of Andhra Pradesh v. Yadla Ramga Rao & ors.,AIR 2003 SC 11.........................................5

BOOKS REFERRED

1. Hari Singh Gour’s, Commentaries on Hurt & Homicide (2nd Edition, Law Publishers

(India) Pvt. Ltd.).

2. John A. Andrews & Michael Hirst, Criminal Evidence (2nd Edition, Sweet & Maxwell

Ltd., 1992, London).

3. KD Gaur, Criminal Law and Criminology (Deep & Deep Publications Pvt. Ltd., 2002,

New Delhi).

4. P.C.Banerjee, Criminal Trial & Investigation (4th Edition, Orient Publishing Company,

2007, New Delhi).

iii


5. R.Gopal, Shoni’s Code of Criminal Procedure (20th Edition, Lexis Nexis Butterworths,

2005, New Delhi).

6. R.K. Nelson, Indian Penal Code (9th Edition, Lexis Nexis Butterworths, 2003, New

Delhi).

7. R.P.Kathuria, Law of Crimes and Criminology (2nd Edition, Vinod Publications, 2007,

Delhi).

8. Ratanlal & Dhirajlal, Law of Crimes (26th Edition, Bharat Law House, 2007, New

Delhi).

9. Ratanlal & Dhirajlal, The Indian Penal CODE (31st Edition, Wadhwa & Company, 2006,

Nagpur).

10. Sir John Woodroffe & Syed Amir Ali, Law of Evidence (17th Edition, Butterworths,

2001, New Delhi).

11. SP Tyagi, Law of Evidence (2nd Edition, Vinod Publications, 2008, Delhi).

12. Woodroofe, Commentaries on Code of Criminal Procedure (2nd Edition, Law Publishers

Pvt. Ltd., 2005, Allahabad).

13. Vinod Nijhawan, Better Criminal Reference (2nd Edition, Vinod Publications Pvt. Ltd.,

2008, New Delhi).

DICTIONARY REFERRED

1. Aiyar, K.J., Judicial Dictionary, (New Delhi: Butterworths India, 13th edition, 2001).

2. Black, Henry Campbell, Black’s Law Dictionary, (St. Paul, Minn: West Publishing

Company, 6th edition, 1990).

STATUES REFERRED

1. Indian Penal Code, 1860.

2. Evidence Act, 1872.

3. Code of Criminal Procedure, 1973.

iv


STATEMENT OF JURISDICTION

THE PROSECUTION HAS APPROACHED THE HON’BLE SESSION COURT UNDER SECTION 177

AFTER THE CASE HAS BEEN COMMITTED TO THE HON’BLE COURT UNDER SECTION 209

READ WITH SCHEDULE I OF THE CODE OF CRIMINAL PROCEDURE, 1973.

v


STATEMENT OF FACTS

-I-

The Background of the case: Reshma, a renowned socialite in Delhi was married to Sanjay

Yadav, a businessman in Delhi. They got married on 20th October 2010 in luxury hotel in

Udaipur. It was the first marriage of Sanjay but second marriage of Reshma. She had a daughter

named Aditi aged 19 years from her first husband. Her first husband Rahul had died in an

accident. Aditi was studying in 2nd year MBBS in a reputed college in Mumbai. All the

expenses for the study of Reshma were given by Sanjay. The married life of Reshma and Sanjay

was going very smoothly after one year of their marriage. Reshma once suspected her husband of

having an extra marital affair with an air hostess named Riya Raman aged 25 years. She was

introduced to Reshma by Sanjay as a friend whom he met at a party in November 2012. There

were frequent quarrels between Reshma and Sanjay because of Riya’s closeness with Sanjay. He

was fed up with the behavior of Reshma for constantly keeping an eye over all his activities

whether related to his work or personal things and not giving him proper space in married life.

-II-

Cruelty and its effect : Once during a party at friend’s place in July 2013 Reshma caught

Sanjay and Riya getting intimate. She was furious all the time about her husband’s intimacy with

the airhostess. This affected her both mentally and emotionally. She consulted a psychiatrist who

gave her medicines for depression and advised her complete bed rest. On 4th January 2014,

Reshma found some incriminating pictures of Riya and some other person on Sanjay’s phone.

-III-

Unfortunate incident : Then on 9th January 2014, both Sanjay and Reshma went to Mumbai for

a board meeting of the company. Sanjay was busy whole day in the meetings and Reshma was at

the hotel whole day taking rest. They both had to attend a family function at night in Taj Palace

Hotel on the same day. In the evening when Sanjay returned from the meeting he found Reshma

sleeping on the bed. He tried to wake her up but she did not get up. He got panicked when she

vi


did not respond to his calls and called the hotel doctor to examine her. On medical examination,

Reshma was found dead. Immediately the news leaked in the media that Reshma wife of a

renowned business man Sanjay died under mysterious circumstances. To save him from

humiliation in media and press, Sanjay gave a media statement that his wife was under

depression and this may have resulted in her death.

-IV-

The case : Next day post mortem was done and it was found out that there were some injury

marks on the back of Reshma and she had died due to drug overdose. No suicide note has been

recovered from the room where she died. Aditi has filed a case against Sanjay that he has killed

her mother.

vii


ISSUES RAISED

1. WHETHER ACCUSED IS LIABLE TO BE CONVICTED UNDER SECTION 498A

OF THE INDIAN PENAL CODE, 1860?

2. WHETHER ACCUSED IS LIABLE TO BE CONVICTED UNDER SECTION 306

OF THE INDIAN PENAL CODE, 1860?

viii


STATEMENT OF CHARGES

Charge: Mr. Sanjay is charged under section 306 and 498A of Indian Penal Code,

1860 for the offence of abetment to commit suicide and his wife to cruelty.

ix


SUMMARY OF ARGUMENTS

1. THAT SANJAY IS LIABLE TO BE CONVICTED UNDER SECTION 498A OF

THE INDIAN PENAL CODE, 1860.

It is humbly submitted that the accused has subjected Ms. Reshma to mental cruelty by being in

illicit relationship over a long period of time with Ms. Riya and other persons the incriminating

pictures of which is found in accused phone. And further the accused has subjected Ms. Reshma

to physical cruelty and did not stop doing prohibited act even after being threatened by Ms.

Reshma that she will commit suicide if he does not stop his extra marital affairs.

2. THAT SANJAY IS LIABLE TO BE CONVICTED UNDER SECTION 306 OF


Alternatively where accused is not convicted under section 302 of IPC it is humbly submitted

and proved that Ms. Reshma has committed suicide and since suicide has been committed within

seven years of marriage section 113-A is attracted. And where it has already been proved that

accused has subjected Ms. Reshma to cruelty, it is proved that accused has abetted her to commit

suicide.

x


ARGUMENTS ADVANCED

1. THAT SANJAY IS LIABLE TO BE CONVICTED UNDER SECTION 498A OF


It is humbly submitted before this Hon’ble court that the accused in the case namely- Sanjay

Yadav has committed an offence of cruelty covered under Sec. 498-A1 of the Indian Penal Code,

1860 for which punishment is prescribed under same section.

1.1. THE ESSENTIAL REQUISITES FOR CONVICTION UNDER SECTION 498A.

It is humbly submitted that the essential ingredients for conviction under section 498-A are

following:

1. Woman subjected to cruelty.

2. Cruelty subjected by Husband or relative of husband.

Further clause (a) of the Explanation under section 498A, IPC defines cruelty to mean a 'wilful

conduct of the husband of such nature as is likely to drive the women to commit suicide.’2

It is humbly submitted before this Hon’ble Court that to constitute cruelty the conduct should be

such which is “inexcusable”, “unpardonable”, “unforgivable”, or “grossly excessive”. The

shortest expression is “grave and weighty”.3

It is further submitted in the light of the case Rup Lal v. Kartaro4 that the act and conduct

complained of should be considered in reference to the whole matrimonial relationship.

1 The Indian Penal Code, § 498A (1860).2 Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121.3 Collins v. Collins, (1953) 2 All ER 966.4 Rup Lal v. Kartaro, 1970 J&K 158.

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1.2. ACCUSED SUBJECTED HIS WIFE ‘RESHMA’ WITH CRUELTY.

It is humbly submitted before this Hon’ble court that cruelty is a conduct of such a character as

to have cause danger to life or health bodily or mental, gives rise to reasonable apprehension of

such danger.

Further it is humbly submitted that in the case of Praveen Mehta v. Inderjeet Mehta5, Supreme

Court observed that mental cruelty is a state of mind and feeling, therefore, a matter of inference

and inference has to be drawn on facts and circumstances taken cumulatively.

It is pertinent to mention that there had been quarrel between the couple because of Riya’s

closeness with Sanjay6.

It is further pertinent to mention here that accused had been once caught by his wife in July 2013

getting intimate with Riya and secondly, wife of the accused had also found some incriminating

picture of Riya and some other persons on her husband’s phone.7

It is humbly submitted that indulging in getting intimate with another woman while being

married or having extra marital affairs has been considered “inexcusable and grossly excessive”

in the case of Kusum Lata v. Kampa8.

Further it is pertinent to mention that the threatening given by the wife of the accused that “she

will commit suicide if he does not stop doing all these things”9 clearly suggests that conduct of

the accused had been continuously putting his wife in depression and causing mental injury.

Further in the case of Soosannamma v. Vergeese10, it was held by the apex court that ‘a conduct

which would make married life together impossible to be endured and would make life very

5 Praveen Mehta v. Inderjeet Mehta, AIR 2002 SC 2582.6 Moot proposition ¶ 1 at line 10.7 Moot proposition ¶ 3 at line 1.8 Kusum Lata v. Kampa, AIR 1965 All. 280.9 Moot proposition ¶ 3 at line 3.10 Soosannamma v. Vergeese, AIR 1957 SC 27.

2


unhappy and miserable will amount to cruelty. It is submitted that illicit relation with other

person by one spouse comes within the ambit of cruelty defined under section 498A.11

Further it is humbly submitted that the medical examination report of deceased body clearly

shows the presence of injury marks on the back of the deceased12. At this point it is pertinent to

mention that since no one else was in contact with the deceased except to that of accused, those

injuries can only be presumed to be inflicted by accused and thereby subjecting physical cruelty

to deceased. Reliance can be placed upon Mary v. Raghwan13, Saptani v. Jagdish14 wherein it

was held that single act of violence can amount to cruelty and presence of injury marks on

victims are positive proof of it.

It is therefore humbly submitted that accused willful conduct of having illicit relations and

extramarital affairs squarely falls within the ambit of definition of cruelty as defined under 498A.

11 Smt . Arpita Chakraborty v. Dr . AmitChakraborty, 2008(3) CHN423.12 Moot proposition ¶ 3 at line 18.13 Mary v. Raghwan, AIR 1979 MP 40.

14 Saptani v. Jagdish, AIR 1987 Del. 63.

3


2. THAT SANJAY IS LIABLE TO BE CONVICTED UNDER SECTION 306 OF


It is humbly submitted before this Hon’ble court that the accused in the case namely- Sanjay

Yadav has committed an offence of cruelty covered under Sec. 30615 of the Indian Penal Code,

1860 for which punishment is prescribed under same section.

2.1. THE ESSENTIAL REQUISITES FOR CONVICTION UNDER SECTION 306 OF THE

INDIAN PENAL CODE, 1860.

It is humbly submitted that the essential ingredients of an offence under this section are:

1. There should be a suicide.

2. The person should have abetted in commission of suicide in accordance with section 107 of

IPC.16

2.2. RESHMA HAS COMMITTED SUICIDE.

It is humbly submitted before this Hon’ble Court that it is evident from the facts of the case that

the deceased has died due to overdose of drugs.17 Further injury marks found on the back of the

deceased shows that physical cruelty has been committed upon her in addition to the mental

injury.

It is humbly submitted that the fact, Reshma was under depression and was taking medicine after

consultation of doctor 18suggests that she had knowledge as to what amount of medicine is to be

consumed. Jatin Sharma v. Sonali Chauhan19 can be relied upon wherein it was said by the court

that in cases of death due to drug overdosing under circumstances where matrimonial life is not

15 The Indian Penal Code, § 306 (1860).16 Kisan @ Pilaji Gangaram Khatale and Ors. v. The State of Maharashtra, 2007 Cr.L.J. 130.17 Moot proposition ¶ 3 at line 18.18 Moot proposition ¶ 2 at line 6.19 Jatin Sharma v. Sonali Chauhan, AIR 1996 SC 230.

4


going smoothly and one spouse has threatened to commit suicide, it is reasonable to presume that

the case is of suicide.

It is therefore can reasonably be presumed that she has taken the drugs in excessive quantity

intentionally in order to commit suicide only after getting more depressed because of the

incidents happened earlier whereby she was subjected to cruelty by her husband.

2.3. SECTION 113-A OF THE INDIAN EVIDENCE ACT, 1862 IS ATTRACTED IN THE

INSTANT CASE.

It is humbly submitted before this Hon’ble Court and proved above that the accused has

subjected his wife with cruelty as defined under Sec. 498A of IPC. Further it is submitted that

since Reshma has died on 9th January 201420 within seven years of her marriage Sec. 113-A of

IEA is attracted in the instant case.

The essential ingredients for raising presumption under Sec. 113-A are following:

1. Wife has committed suicide within seven years of her marriage.

2. That her husband or relative of her husband subjected her to cruelty.21

In the case of State of Andhra Pradesh v. Yadla Ramga Rao & ors.22, it has been held by the

Apex Court that where the husband conduct was cruel to the extent that it has led his wife to

commit suicide in that case the offence of abetment of committing suicide punishable under

section 306 of IPC would be clearly met out against accused and for that purpose the

presumption under Section 113-A of Evidence Act can be raised against him.

It is humbly submitted before this Hon’ble Court that abetment to commit suicide is a mental

process of instigating a person to commit suicide. Reliance can be placed on Neni v. State of

20 Moot proposition ¶ 3 at line 13.21 Jagdeesh Chand v. State of Haryana, 1988 Cr.L.J. 1048.22 State of Andhra Pradesh v. Yadla Ramga Rao & ors.,AIR 2003 SC 11.

5


Rajasthan23, wherein the facts of the case were quite similar to the instant case; it was held by the

court that such suicide has been abetted by accused (husband).

It is therefore humbly submitted that in the instant case continuous illicit relationship of accused

with other woman and presence of incriminating pictures of Riya and some other persons on

accused24 and quarrel between accused and his wife25 clearly suggests that deceased was

subjected to cruelty for a long period of time and has been driven by the acts of the accused to

commit suicide.

In the case of Ramesh Baburao Patil v. State of Madhya Pradesh26, where treatment with cruelty

meted out to wife was proved and where she committed suicide within 7 years of her marriage

court held that 113-A spring into action and accused was liable under section 306 of IPC.

It is necessary to reach the cause and effect relationship between cruelty and suicide for the

purpose of raising presumption under 113-A of IEA.27 It is humbly submitted that in the instant

case the only cause which has led to commission of suicide by Reshma can be figured out by the

threatening statement of Reshma that “she will commit suicide if he does not stop doing all these

things”28 and therefore it can be concluded that she committed suicide only after such act of cruel

nature had been committed by the accused.

It is humbly submitted before this Hon’ble Court that abetment to commit suicide is a mental

process of instigating a person to commit suicide. Reliance can be placed on Neni v. State of

Rajasthan29, wherein the facts of the case were quite similar to the instant case, it was held by the

court that such suicide has been abetted by accused (husband).

23 Neni v. State of Rajasthan, 2006 Cr.L.J. 4527.24 Moot proposition ¶ 3 at line 1.25 Moot proposition ¶ 1 at line 10.26 Ramesh Baburao Patil v. State of Madhya Pradesh, 2002 Cr.L.J. 3364.27 HARI SINGH GOUR, PENAL LAW OF INDIA 11 (2006) VOL. 3.28 Moot proposition ¶ 3 at line 3.29 Neni v. State of Rajasthan, 2006 Cr.L.J. 4527.

6


It is therefore humbly submitted before this Hon’ble Court that the accused has abetted his wife

to commit suicide and is liable to be punished under Section 306 of IPC.

7


PRAYER

Wherefore, in the light of above, it is most humbly prayed that this Hon’ble Court may be

pleased to adjudge that:

1. THE ACCUSED NAMELY – SANJAY YADAV HAS COMMITTED AN OFFENCE UNDER

SEC. 498A OF INDIAN PENAL CODE, 1860 AND IS LIABLE TO BE CONVICTED

THEREOF.

2. THE ACCUSED NAMELY- SANJAY YADAV HAS COMMITTED AN OFFENCE UNDER

SEC. 306 INDIAN PENAL CODE, 1860 AND THEREFORE SHOULD BE CONVICTED

THEREOF.

Pass any other order as this Hon’ble Court may deem fit in the light and interest of justice.

Counsel for Prosecution.

Date: ______________ _____________________

Place: ______________

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memorial shashi tharur