SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT
COMPETITION
11th – 13th SEPTEMBER 2015
BEFORE THE HONORABLE COURT OF
SESSIONS, DURG, XANADU
S.C.N.o.111 of 2015
MEMORANDUM FOR PROSECUTION
IN THE MATTER OF:
State of Xanadu………………………………………………………...……Prosecution
v.
1. Manohar & 2.Rahul. ……………………………………………….…Accused/Defense
MEMORIAL SUBMITTED BY
COUNSELS FOR THE PROSECUTION
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TABLE OF CONTENTS
LIST OF ABBREVIATION
5
INDEX OF AUTHORITIES
7
CASES REFERRED
BOOKS REFERRED
ARTICLES AND JOURNALS
LAW DICTIONARIES
STATUTES REFERRED
LEGAL DATABASE
WEB SOURCE
STATEMENT OF JURISDICTION
11
STATEMENT OF THE CHARGES
12
STATEMENT OF FACT
13
STATEMENT OF ARGUMENTS
14
ARGUMENTS ADVANCED
16
ISSUE-I:
1. WHETHER THE ACCUSED ARE LIABLE TO BE PUNISHED FOR OFFENCES
ALLEGED UNDER SECTION 302 OF BHARAT PENAL CODE.
1.1 Accused Mr. Manohar and Mr. Rahul are liable to be punished under section 302 as
their deliberate and pre-meditated act has caused the death of the deceased.
1.2 Accused had full knowledge that their acts would result in the death of Mr. Karan’s.
1.3 The accused caused the death of the deceased for an insurance amount of 2 crores
conclusively establishes the mens rea.
1.4 All the circumstances are pointing towards nothing but the guilt of the accused.
MEMORANDUM ON BEHALF OF PROSECUTION
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ISSUE II:
2. WHETHER THE ACCUSED MR.MANOHAR AND MR.RAHUL ARE LIABLE TO
BE PUNISHED UNDER SECTION 465 OF BHARAT PENAL CODE.
2.1 Accused used Dr.Choudary’s prescription to get a drug named Angispan
2.2
Both the accused used technological devices and expertise to hack into the
bank accounts of the deceased.
ISSUE III:
3. WHETHER THE ACCUSED MR.MANOHAR AND MR.RAHUL ARE LIABLE
TO BE PUNISHED UNDER SECTIONS 120-B READ WITH SEC.34 OF BHARAT
PENAL CODE.
3.1 The accused are liable to be punished under section 120 B
3.2. The fact that both the accused conspired to hack Karan’s account are proved by the
material objects and evidence adduced by the prosecution.
3.3. Both the accused conspired together to murder Karan is supported by direct
evidence by way of witness testimonies and circumstantial evidences.
ISSUE IV:
4. WHETHER THE ACCUSED MR.MANOHAR AND MR.RAHUL ARE
TO
BE
PUNISHED
UNDER
SECTIONS
66&66C
OF
LIABLE
INFORMATION
TECHNOLOGY ACT 2005.
4.1 Sufficient evidence are produced to prove the unauthorized access of the deceased’s
bank account by the accused.
4.2 The accused used technological devices to hack into the deceased’s bank account
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ISSUE V:
5. WHETHER THE ACCUSED MR.RAHUL IS LIABLE TO BE PUNISHED FOR
OFFENCES ALLEGED UNDER SECTION 109 OF BHARAT PENAL CODE.
5.1 The accused No.2 is liable to be punished for abetment under sec.109
LIST OF THE PROSECTION WITNESSES
31
LIST OF DOCUMENTS
32
LIST OF MATERIAL OBJECTS
33
APPENDIX
34
PRAYER
41
MEMORANDUM ON BEHALF OF PROSECUTION
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LIST OF ABBREVIATIONS
A.I.R
:
All India Reporters
All
:
Allahabad High Court
Anr
:
Another
AP
:
Andra Pradesh
B.P.C
:
Bharat Penal Code
Bom.
:
Bombay
BomLR
:
Bombay Law Reporter
Cal
:
Calcutta High Court
Crl.A
:
Criminal Appeal
Cr.Pc
:
Criminal Procedure Code
Cr.L.J
:
Criminal Law Journal
PW
:
Prosecution Witness
DW
:
Defense Witness
ECC
:
Essential Commodities Cases
Edn.
:
Edition
GLR
:
Gujarat Law Reporter
Guj
:
Gujarat
Hon’able
:
Honorable
I.T Act
:
Information Technology Act
KLJ
:
Kerala Law Journal
Mad
:
Madras
MO
:
Material Object
No.
:
Number
Ors.
:
Others
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SURANA AND SURANA TRIAL ADVOCACY MOOT COURT COMPETITION
p.
:
Page
Pat LJR
:
Patna Law Journal Reports
PH
:
Punjab & Haryana High Court
PW
:
Prosecution Witness
QB
:
Queen’s Bench
r/w
:
Read with
SC
:
Supreme Court
SCC
:
Supreme Court Cases
SCR
:
Supreme Court Reporter
Sec.
:
Section
SLP
:
Special Leave Petition
Supp.
:
Supplementary
Tr & Coch
:
Travancore & Cochin
u/s
:
Under Section
v.
:
Versus
vol.
:
Volume
WB
:
West Bengal
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INDEX OF AUTHORITIES
TABLE OF CASES:
1. Abdul Rahaman Kunji v. The State Of West Bengal Crl.A 454 of 2009 decided on
14/11/2014
2. Amilal v. State Of Rajastahan(1996)CrlJ 1585 (Raj)
3. Atul Singh v. State of Chhattisgarh Crl. A No 580 of 2007 on 26 June, 2007
4. Baby John v. State AIR 1953 Tr& Coch 251
5. Bakshish Singh v State of Punjab, AIR 1971 SC 2016
6. Barendra Kumar Ghosh v. King Emperor AIR 1925 PC 1
7. Bihar v. Paramhans (1986) PatLJR 688.
8. Chahat Khan v. State Of Haryana AIR1972 SC2574
9. Chaman Lal & Ors v. State of Punjab & Anr (2009) 11 SCC 721
10. Chhotka v State of WB, AIR 1958 Cal 482
11. Chiranjeevi v. Smt. Lavanya @ Sujatha AIR 2006 AP 269
12. Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
13. Dr.Vimala v. Delhi Administration, AIR 1931 All 258
14. E.K.Chandrasenan v. State of Kerala AIR 1995 SC 1066
15. Emperor v. Sanjiv Ratnappa, (1932) 34 BomLR 1090
16. Gulam
Sarbar
v. State
Of
Bihar (now
Jharkhand)
2013(12)SCALE504;
2014(2)SCC(CR)195
17. Hari Singh v. State of Rajasthan, AIR 1997 SC 1505
18. Indravadan @ Indubhai Chimanlal v. State Of Gujarat (1993) 2 GLR 1351
19. Jogendra Singh v. State Of Uttar Pradesh 2007 (116) ECC 53
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20. Kamal Jeet Kaur v. State of Rajasthan S.L.P. (Criminal) No.2965 of 2006 decided on
14-05-2007
21. Kehar Singh and Ors. v. The State (Delhi Administration), AIR(1988)SC 1883
22. Laxman v. State of Maharashtra, AIR 1974 SC 1803
23. Malan v. State of Maharashtra AIR 1960 Bom 393
24. Manjuviranna Kantayya Rai v. The State Of Maharashtra Crl. A No.422 OF 2004
decided on 7 July, 2011
25. Mir Nagavi Askari v. CBI AIR 2010 SC 528
26. Mohd. Khalid v. State Of West Bengal (2002)7 SCC 334;
27. Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
28. Nathuni Yadav And Ors vs State Of Bihar And Anr , AIR 1996 SC 1093
29. Nazir Ahmad v. Emperor AIR 1927All 730
30. Pardeep Kumar v. Union Administration, Chandigarh, 2006 CriLJ 3894
31. R v. Riley [1896] 1 QB 321
32. Raja @ Rajinder v. State of Haryana, Crl.A No. 486 of 2010 decided on 10 April,
2015
33. Ramabatar Agarwalla v. State (1983) CrLJ 122 (Ori)
34. Re Lakhmi Narayan Aiyer AIR 1918 Mad 738
35. Regina v. Murphy, (1837) 173 ED 502
36. Saju v. State of Kerala Crl.A 699/ 1998 decided on 15/11/2000
37. Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142
38. Santosh v. State of Madhya Pradesh 1975 AIR 654
39. State v. Dinakar Bandu (1969) 72 BomLR 905
40. State v. Shaqila And Ors.2000 (55) DRJ 713
41. State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
MEMORANDUM ON BEHALF OF PROSECUTION
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42. State of Maharashtra v Meyer Hans George, AIR 1965 SC 722
43. State of Punjab v Sucha Singh, AIR 2003 SC 1471
44. State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840
45. State of U.P. v. Iftikhar Khan, 1973 (1) SCC 512
46. Sukhbir Singh v. Kirtan Singh, 2005 (10) SCC 567
47. Surendra Prasad Sinha v. The State Of Jharkhand Criminal Revision No. 502 of 2014
on 5 August, 2015
48. Yash Pal Mittal v. State of Punjab, [1977] SCC 54
BOOKS REFERRED:
1. Ratanlal and Dhirajlal, Eds.Justice YV Chandrachud and VR Manohar The Indian Penal
Code, (33rd Edn.) Lexis Nexis. New Delhi. 2004.
2. Dr. K.D. Gaur Commentary on The Indian Penal Code, 2nd Edition
3. Ratanlal & Dhirajlal The Law of Evidence, 2nd Edition
4. Ratanlal and Dheerajlal The Code of Criminal Procedure, 20th Edition
5. Prof.S.N. Mira, The Indian Penal Code, 13th Edition
6. S.K Sarvaria, The Indian Penal Code, 10th Edition
7. Dr. Sri Singh Gaurs, The Indian Penal Code, 11th Edition
8. M.P. Tandon, The Indian Penal Code, 23rd Edn.,2005
9. S.N. Mishra, The Code of Criminal Procedure, 12th Edition
10. Justice Y.V. Chandrachud, The Code of Criminal Procedure, 17th Edition
11. Ratanlal & Dhirajlal, Commentary on Code on Criminal Procedure, 30th Edition
12. Justice Y.V. Chandrachud, The Law of Evidence, 21st Edition, 2006
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13. P.M. Bakshi, Law of Evidence, 6th Edition, 1998
14. The Oxford Companion to Law
15. American Jurisprudence Vol. II
LAW DICTIONARIES:
1. Henry Campbell Black, „Black‟s Law Dictionary‟, (6th Edition 1990), West Publishing
Company, St.Paul
2. Oxford English Dictionary, Ed.10, (2005Barron’s Law Dictionary, Ed. 6(2010)
STATUTES REFERRED:
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)
4. Information Technology Act, 2000 (Act 21 of 2000)
LEGAL DATABASE:
1. http://www.cdjlawjournal.com
2. http://www.findlaw.com
3. http://www.indiankanoon.org
4. http://www.judis.com
5. http://www.manupatra.co.in
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STATEMENTS OF JURISDICTION
The counsels for the Prosecution, appearing on behalf of State of Xanadu humbly submit this
memorandum under Sec.314 of the Code of Criminal Procedure, 1973. The memorandum
sets forth the facts, contentions and arguments in the present case.
The prosecution begs to submit that the Hon‟ble Court of Sessions Durg, Xanadu has
exclusive jurisdiction to try the case under, sec.177 r/w sec. 209 of the code of criminal
procedure, 1973
Sec.177: Ordinary place of inquiry and trail
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.
Read with
Sec.209: Commitment of case to Court of Session when offence is triable exclusively by it
When 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 shalla.
commit the case to the Court of Session;
b.
subject to the provisions of this code relating to bail, remand the accused to custody
during and until the conclusion of, the trail;
c.
send to that Court the record of the case and the documents and articles, if any, which
are to produced in evidence;
d.
notify the Public Prosecutor of the commitment of the case to the Court of Session.
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STATEMENTS OF CHARGES
CHARGE I:
That accused Mr.Manohar is liable to be punished under Section 120B
of Bharat Penal Code read with Section 34, , 302,465 and under
sections 66 &66C of Information Technology Act.
CHARGE II:
That accused Mr.Rahul is guilty under the Section 120-B read with 34,
302,465,109 of Bharat Penal Code and under sections 66 &66C of
Information Technology Act
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STATEMENTS OF FACTS
This case is all about the brutal murder of Mr.Karan. The main accused Mr.Manohar,
seemingly intelligent and studious was in fact a perverted spoil brat, and a spent thrift who
caused the death of deceased Karan. Karan his affectionate uncle took care of Manohar after
he lost his parents and provided everything he could. He loved the accused even more than
his own son, but the „devil‟ inside Manohar was only concerned about the wealth of his
uncle. Apart from receiving ample pocket money from his uncle, he used to borrow money
from his affluent friends to support his luxurious lifestyle. Mr.Rahul, Manohar‟s close friend
and the co-accused in the case, was the facilitator of his luxurious life. He was sure that he
will get back enough and more money from Karan through Manohar. Manohar, along with,
Rahul, conjointly hacked Karan‟s bank account to amass as much money from as possible.
Karan‟s realization about all these made him very upset. Manohar thought that Karan would
never track it out. But, Karan‟s sudden outburst made Manohar realize that Karan has turned
against him. This was enough to provoke Manohar, who was also under constant pressure
from Rahul to give back the borrowed amount. He decided to murder Karan and executed the
plan with the help of Rahul. Both the accused driven by the greed towards wealth were also
attracted by Karan‟s 2 crore life insurance policy claim and thus they conspired together to
kill the deceased and implemented the plan efficiently. Manohar, who was well aware about
the health issues of the deceased, was able to take advantage of the situations and tried to fake
a natural death. He first injected a lethal combination of medicines on Karan and then
intravenously administrated Angispan on Karan. These acts even helped him to create
variations in the post-mortem report and forensic report and thus created confusion.
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SUMMARY OF ARGUMENTS
ISSUE I:
THE ACCUSED ARE LIABLE TO BE PUNISHED FOR OFFENCES ALLEGED
UNDER SECTION 302 OF BHARAT PENAL CODE.
1.1 Accused Mr. Manohar and Mr. Rahul are liable to be punished under section 302 as
their deliberate and pre-meditated act has caused the death of the deceased.
1.2 Accused had full knowledge that the acts would result in the death of Mr. Karan‟s.
1.3 The accused caused the death of the deceased for an insurance amount of 2 crores
conclusively establishes the mens rea.
1.4 All the circumstances are pointing towards nothing but the guilt of the accused.
ISSUE II:
2. WHETHER THE ACCUSED MR.MANOHAR AND MR.RAHUL ARE LIABLE TO
BE PUNISHED UNDER SECTION 465 OF BHARAT PENAL CODE.
2.1 Accused used Dr.Choudary‟s prescription to get a drug named Angispan
2.2
Both the accused used technological devices and expertise to hack into the
bank accounts of the deceased.
ISSUE III:
3. WHETHER THE ACCUSED MR.MANOHAR AND MR.RAHUL ARE LIABLE
TO BE PUNISHED UNDER SECTIONS 120-B READ WITH SEC.34 OF BHARAT
PENAL CODE.
3.1 The accused are liable to be punished under section 120 B
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3.2. The fact that both the accused conspired to hack Karan‟s account are proved by the
material objects and evidence adduced by the prosecution.
3.3. Both the accused conspired together to murder Karan is supported by direct evidence
by way of witness testimonies and circumstantial evidences.
ISSUE IV:
4. WHETHER THE ACCUSED MR.MANOHAR AND MR.RAHUL ARE
TO
BE
PUNISHED
UNDER
SECTIONS
66&66C
OF
LIABLE
INFORMATION
TECHNOLOGY ACT 2005.
4.1 Sufficient evidence are produced to prove the unauthorized access of the deceased‟s
bank account by the accused.
4.2 The accused used technological devices to hack into the deceased‟s bank account
ISSUE V:
5. WHETHER THE ACCUSED MR.RAHUL IS LIABLE TO BE PUNISHED FOR
OFFENCES ALLEGED UNDER SECTION 109 OF BHARAT PENAL CODE.
5.1 The accused No.2 is liable to be punished for abetment under sec.109
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ARGUMENTS ADVANCED
ISSUE- I
1. WHETHER THE ACCUSED ARE LIABLE TO BE PUNISHED FOR OFFENCES
ALLEGED UNDER SECTION 302 OF BHARAT PENAL CODE?
According to Ganguly .J “a miscarriage of justice which may arise from the
acquittal of the guilty is not less than from a conviction of an innocent.” The prosecution
most respectfully submits before this Hon‟ble court that looking into the facts and
circumstances of the present case and the conduct of the accused, it clearly pinpoints to the
guilt of the accused.
The counsel establishes the guilt of the accused under section 302 by ascertaining the
arguments that the accused had intention to kill the deceased . Hence the accused Mr.
Manohar and Mr. Rahul(hereinafther also refered to as PW1)1. are liable to be punished
under section 302 as their deliberate and pre-meditated act has caused the death of the
deceased. Accused had full knowledge that the acts would result in the death of Mr. Karan‟s.
The accused caused the death of the deceased for an insurance amount of 2 crores
conclusively establishes the mens rea. All the circumstances are pointing towards nothing but
the guilt of the accused.
1.1 Accused Mr. Manohar and Mr. Rahul are liable to be punished under section 302
as their deliberate and pre-meditated act has caused the death of the deceased.
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
1
Case data page 6
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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 person2. In the instant matter,
both, the actus reus and the mens rea of the crime are established beyond any apprehensions
of doubt. 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 be3. The counsel
submits that the circumstantial evidence in the instant matter shows that within all human
probability, the act had intentionally killed the deceased. 4 It is evident from the testimony of
the witness that there is no other possible reason for the deceased‟s death other than the acts
of the accused. 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 5.
Prosecution‟s argument that the accused lacked intention is an absurd argument, the intention
to kill can be inferred from the acts of the accused6. Even if for the sake of argument, it is
assumed that the accused had no motive. It should be noted that that absence of motive is no
ground for dismissing the case. Motive is immaterial so far as the offence is concerned, and
need not be established 7as the mere existence of motive is by itself, not an incriminating
circumstance and cannot take the place of a proof8, 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 law9. Motive is a
psychological phenomenon, merely because the prosecution could not translate that mental
disposition of the accused into evidence does not mean that no such mental condition existed
2
Sec 300, IPC
State of UP v. Ashok Kumar Srivastava, AIR 1992 SC 840
4
Bakshish Singh v. State of Punjab, AIR 1971 SC 2016
5
Field, C.D., Expert Evidence: Medical and Non-Medical, 4th Ed (2007)
6
Laxman v. State of Maharashtra, AIR 1974 SC 1803
7
Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
8
State of Punjab v. Sucha Singh, AIR 2003 SC 1471
9
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
3
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SURANA AND SURANA TRIAL ADVOCACY MOOT COURT COMPETITION
in the mind of the accused10. In the present case, however, close analysis of the acts of the
accused reveals that they had the intention to kill the accused. Thus it is contented 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.
1.2. Accused had full knowledge that their acts would result in Mr. Karan’s death.
The mere knowledge that natural and probable consequences of an act would be
death will suffice for a conviction under Sec. 302 of IPC.11 The accused in the present case,
both 3rd year medical students, very well knew how to misuse their knowledge and take
advantage of the health condition of the deceased. They were even cautious enough to create
confusion regarding the cause of death. Further it is to be noted that for such brilliant students
like Manohar and Rahul, it was not a much painstaking effort to implement a premeditated
medical murder. It is evident that the accused was not ready to take Karan to any hospital
instead he himself pretended treating the deceased without even consulting any of the seniors.
Even then the accused were extra careful with their act, only because they didn‟t want to
commit any mistake. As the most probable cause of the acts of the accused is death, they are
liable to be punished for murder12.
1.3 The accused killed the deceased for an insurance amount of 2 crores conclusively
establishes mens rea.
Mens rea is considered as guilty intention13, which is proved or inferred from the acts
of the accused.14 The intention to kill can be inferred from the murder and nature of the
10
Nathuni Yadav And Ors vs State Of Bihar And Anr , AIR 1996 SC 1093
11
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
Hari Singh Gour, Penal Law Of India, Vol3, 11th Edn, Law Publishers, Allahabad,1998
13
Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
14
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
12
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SURANA AND SURANA TRIAL ADVOCACY MOOT COURT COMPETITION
injuries caused to the victim.15 In the present case, the accused showed his intentions from
the very beginning onwards, all the acts done were in furtherance of the intention to kill the
deceased. It is most evident from the circumstances that the accused has intended the result
of his actions. It is presumed that every sane person intends the result that his action normally
produces and if a person‟s deliberate acts causes death of another, the intention of the
accused can be no other than to take the life of the victim and the offence committed amounts
to murder16. Moreover, it is pertinent to note that heinous offences have been committed for
very slight motive17.
In the present case, the accused, who were in dire need of money conspired together
to murder Karan, the facts of the case further indicates that they were also attracted to the
life insurance policy claim of the deceased. At a particular point the accused anticipating that
he will no more get funds from Karan, out of vengeance killed the deceased. Since intention
is always a state of mind, it can be proved only by the external manifestations. 18 In the
present case, all the acts of the accused manifest the intention to kill the deceased.
1.4 All the circumstances are pointing towards nothing but the guilt of the accused.
In the present case, all the circumstances points towards the guilt of the accused.
Sec 8 of Evidence Act stipulates that any fact is relevant which shows or constitutes motive
or preparation for any fact in issue or relevant fact19. The accused were of a mindset to do
anything for money. For the successful implementation of their plans, the most brilliant
accused plotted everything in favour of them. Manohar, who was well aware about all the
medical details of the deceased, instead of administrating the necessary medicines present at
home, send Raghav to a very busy pharmacy. During this time gap the accused injected a
15
Laxman v. State of Maharashtra, AIR 1974 SC 1803
(1951) 3 Pepsu LR 635
17
State v Dinakar Bandu (1969) 72 Bom LR 905
18
Chahat Khan v. State Of Haryana AIR1972 SC2574
19
Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482
16
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SURANA AND SURANA TRIAL ADVOCACY MOOT COURT COMPETITION
lethal combination of medicines which ensure Karan‟s death, further he administered
intravenous Angispan, a medicine which is not advisable for alcoholics which resulted in air
embolism which further added to the cause of death.
All the incidents links to the chain of circumstances which connect the accused to the
crime20.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 those circumstances on themselves turns out to be the strongest evidence
against the accused21.
20
21
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
Hari Singh v State of Rajasthan, AIR 1997 SC 1505
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ISSUE II
2. WHETHER THE ACCUSED ARE LIABLE TO BE PUNISHED UNDER SEC.465
R/W SEC. 34 OF BHARAT PENAL CODE?
It is humbly contented before the Hon‟ble Court that the accused had committed the
offence u/s 465 of BPC. Forgery is the making of a false instrument to deceive 22.The oral
testimony of the witnesses and the documentary evidence indicates that the accused faked the
used Dr.Choudary‟s prescription to a least commonly used drug and that they have
manipulated the deceased‟s bank account through malpractices
2.1 Accused used Dr.Choudary’s prescription to get a drug named Angispan.
At the very basis of the offence of forgery is the making of a false document with the
criminal intention to cause damage to any person.23 In the matter at hand, the accused forged
Dr.Choudary‟s prescription to get a drug named Angispan. Angispan is a commonly used
medicine and does not need prescription for oral consumption. The medicine is rarely used
intravenously and thus is available only with a doctor‟s prescription. The accused, a medical
student, very well knew this, forged Dr.Choudary‟s prescription to access the medicine. It
was done with fraudulent intention to injury the decease, as he intentionally misused the drug
causing air embolism contributing to the death of the deceased. The offence of forgery is
said be committed when a person without lawful authority makes or alters any document 24.
Thus in the present case, beyond an element of doubt, it is clear that the accused has
22
R v. Riley [1896] 1 QB 321
P.S.A Pillai, Criminal Law, Edited by Dr.K I Vibhute, 12th Ed (2014)
24
Mir Nagavi Askari v. CBI AIR 2010 SC 528
23
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committed the offence of forgery as he is not in a position to deny the fact that he has
misused Dr.Choudary‟s prescription.
2.2 Both the accused used technological devices and expertise to hack into the bank
accounts of the deceased.
A person is said to be liable for forgery when he dishonestly of fraudulently
manipulates any valid document or any electronic record. The term electronic record by
virtue of Sec.29A of the IPC inserted in the code by Information Technology Act, 2000
means data, record or data generated image or sound stored, received or sent in an electronic
form or microfilm or computer generated microfiche25. The accused, in the present case,
jointly attempted to hack the deceased‟s bank account and has illegally transferred money
without consent. The accused installed key loggers in Karan's personal computer and tried to
retrieve the new password. The transactions they have done were without Karan's consent or
knowledge, and thus caused wrongful26 economic loss to the deceased. In Dr.Vimala v. Delhi
Administration27 it was held that fabricating of documents causing pecuniary or other loss to
another amount to forgery. Therefore, the prosecution humbly submits that the Trial Court
would be justified in convicting the accused on the basis the evidences on record, u/s
Ss.435 and 34 of BPC
25
Sec29,IPC
Sec 24; Emperor v. Sanjiv Ratnappa (1932) 34 BOMLR 1090
27
AIR 1931 All 258
26
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ISSUE III
3. WHETHER MANOHAR AND RAHUL ARE GUILTY OF CONSPIRACY UNDER
SEC.120B OF BHARAT PENAL CODE?
Section 120B of BPC provides for punishment for criminal conspiracy. 'Criminal
conspiracy' may be defined as
When two or more persons agree to do, or cause to be done,-
(1) all illegal act, or (2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy28
3.1 The accused are liable to be punished u/s 120 B
The gist and rock bottom of the offence is an agreement to break the law. It may
complement the commission of several acts. Criminal conspiracy is complete when the frame
for unlawful combination is made out. From this it necessarily follows that 29when the
conspiracy alleged is with regard to commission of a serious crime of the nature as
contemplated in S.120-B read with the provisio to sub-sec.(2) of S.120-A of the IPC, then in
that event mere proof of an agreement between the accused for commission of such a crime
alone is enough to bring about a conviction under S.120-B30.It is not necessary that all the
conspirators must know each and every detail of the conspiracy as long as they are co-
28
Mohd. Khalid v. State Of West Bengal (2002)7 SCC 334; State v. Shaqila And Ors.2000 (55) DRJ 713;
Surendra Prasad Sinha Alias Surendra Kumar v. The State Of Jharkhand Criminal Revision No. 502 of 2014
decided on on 5 August, 2015
29
Jogendra Singh v. State Of Uttar Pradesh 2007 (116) ECC 53
30
Saju v. State of Kerala Appeal (crl.) 699/ 1998 decided on 15/11/2000
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participators in the main object of the conspiracy. There must be unity of object or purpose
but there may be plurality of means sometimes even unknown to one another, amongst the
conspirators.31
To establish a charge of conspiracy, knowledge about indulgence in either an
illegal act or a legal act by illegal means is necessary.32Although the common design is the
root of the charge, it is not necessary to prove that these two parties came together and
actually agreed in terms to have this common design and to pursue it by common means, and
so to carry it into execution.33 Privacy and secrecy are the characteristics of conspiracy, than
of a loud discussion in an elevated place open to public view.34 Direct evidence in proof of a
conspiracy is seldom available; offence of conspiracy can be proved by either direct or
circumstantial evidence.35Criminal conspiracy is generally hatched in secrecy thus
affirmative evidence or information is difficult and at times not at all possible to access 36. In
such cases, it is necessarily a matter of inference37. For that the circumstances proved before,
during and after the occurrence of the incident have to be considered to decide the complicity
of the accused.38The express agreement, however, need not be proved. Nor actual meeting of
the two persons is necessary. Nor it is necessary to prove the actual words of
communication.39 In the present case, all the activities based on the available circumstances
31
32
Yash Pal Mittal v. State of Punjab, [1977] SCC 54
Bihar v. Paramhans, (1986) Pat LJR 688.
33
Regina v. Murphy, (1837) 173 ED 502
34
E.K.Chandrasenan v. State of Kerala AIR 1995 SC 1066
Mohd. Khalid v. State Of West Bengal (2002) 7 SCC 334
35
36
Gulam Sarbar v. State Of Bihar (now Jharkhand) 2013(12)SCALE504; 2014(2)SCC(CR)195
37
Chiranjeevi v. Smt. Lavanya @ Sujatha AIR 2006 AP 269
Abdul Rahaman Kunji v. The State Of West Bengal CRA 454 of 2009 decided on 14 November, 2014; Kamal
Jeet Kaur v. State of Rajasthan S.L.P. (Criminal) No.2965 of 2006 decided on 14-05-2007
39
Kehar Singh and Ors. v. The State (Delhi Administration), AIR(1988)SC 1883
38
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unerringly points to the guilt of the accused40 in committing the offenses of hacking and
murder.
3.2. The fact that both the accused conspired to hack Karan’s account are proved by the
material objects and evidence adduced by the prosecution.
It is proved that both DW 1 and DW2 are spendthrift close friends. The library
records undisputedly say that DW1 and DW2 were fond of tech books. Moreover, it is an
admitted fact that DW2 is an excellent tech Guru and had a previous record of hacking into
attendance register. Further, it is quite evident that Rahul is a frequent visitor at DW 1‟s
house and used to spent hours teaching DW2 all the notorious activities he knows. Besides
that, Mano used to have an illicit access on Karan‟s account via key-logger which later led to
the change in password and thus to the rebuke. DW1 being interested but not so great in tech
related activities, in such a circumstance there is no doubt that he had obtained the key-logger
from DW2. Hence it can be adduced that they have conspired together to get Karan‟s money.
This in turn shows that DW2 has got an interest in the money obtained from hacking.
3.3 The fact that both the accused conspired to hack Karan’s account are proved by the
material objects and evidence adduced by the prosecution.
It is a well admitted fact that both the accused loved the company of rich, powerful
and affluent friends. This love in turn increased the demands for money beyond limit. Thanks
to hacking, though formerly things moved smoothly, the change in password by his uncle on
discovering the fraudulent activities of DW1 and DW2 changed the wind and put DW1 in the
miry clay of debt. This eventually led to the accumulation of debt, owing more than 1 lakh to
DW2. As DW1 could not ask his uncle for such an amount found it very difficult to return
40
Raja @ Rajinder v. State of Haryana, Crl.A No. 486 of 2010 decided on 10 April, 2015
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and DW2 was in need of money. This coupled with their misunderstanding the term,
nominee, made them to dream of the things they might get after Karan‟s death. Thus they
unreluctantly planned to kill the deceased and acted accordingly and avariciously misused
their intellectual capacities as well as medical knowledge.
Thus, based on the all the direct and available circumstantial evidences it can be
inferred41 that both the accused perpetrated together for the above said offences with a
common intention i.e., money. It was held in the landmark judgment of Barendra Kumar
Ghosh v. King Emperor42, that “the doing of separate acts, similar or diverse, by several
persons, if all are done in furtherance of a common intention, each person is liable for the
result of them all, as if he had done them himself.”` Hence the counsel most respected fully
submits the accused are liable under Sec. 34 beyond reasonable doubt.
It is immaterial whether the illegal act is the ultimate object of such agreement, or is
merely incidental to that object.43 The conspiracy is held to be continued and renewed as to
all its members wherever and whenever any member of the conspiracy acts in furtherance of
the common design44. When two agree to carry it into effect, the very plot is an act in itself,
and an act of each of the parties, promise against promise, actus contra actum, capable of
being enforced, if lawful, punishable if for a criminal object or for use of criminal means.45
Law making conspiracy a crime, is designed to curb immoderate power to do mischief which
is gained by a combination of minds.46 Here it is quite evident that it was the immoderate
power which DW1 got from the DW2 made him hack into the account of his sole care taker
41
Sukhbir Singh v. Kirtan Singh, 2005 (10) SCC 567 (Supreme Court of India).; State of U.P. v. Iftikhar Khan,
1973 (1) SCC 512 (Supreme Court of India); Pardeep Kumar v. Union Administration, Chandigarh, 2006 CriLJ
3894 (Supreme Court of India)
42
AIR 1925 PC 1
43
Atul Singh v. State of Chhattisgarh on 26 June, 2007
44
45
46
American Jurisprudence Vol. II Sec. 23, p. 559
Manjuviranna Kantayya Rai v. The State Of Maharashtra on 7 July, 2011
Chaman Lal & Ors vs State of Punjab & Anr (2009) 11 SCC 721
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and guardian. Without a strong backup no man in the place of DW1 would be daring to hack
into the account of his sole protector in this earth. Hence, it is humbly submitted before the
Honorable Court that, if the intention behind the designing of this law has to be fulfilled both
DW1 and DW2 must be punished to the very extend for the offenses under this Sec.120B and
34 of BPC.
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ISSUE IV
4. WHETHER MANOHAR AND RAHUL ARE GUILTY UNDER SEC.66 AND 66C
OF INFORMATION TECHNONLOGY ACT?
It is most respectfully submitted before this Hon‟ble court that looking into
the facts and circumstances of the present case and the conduct of the accused, it is contended
that Mr.Manohar and Mr. Rahul are liable to be punished u/s 66 and 66C of Information
Technology Act.
4.1. Evidences are sufficed to prove the unauthorized access of the deceased’s bank
account by the accused.
It is evident that the accused was not given any access to the account by the deceased.
It was only Mr. Karan who used to transfer to the accused‟s account, even during the very
last incident he just asked Manohar to bring his laptop but neither did he asked to transfer
money nor disclosed the password. In short, Karan kept his account private and wanted none
to meddle with it. But it is proved that DW1 has accessed the deceased‟s bank account
several times. This implies that he has accessed it without Karan‟s consent. This act itself
amounts to hacking and hence comes within the ambit of the offence under Sec.66 of
Information Technology Act r/w Sec 43(a). A person who sneaks into the private affairs of
another is committing privacy theft. The acts of the accused fall no short of a thief, especially
when he hacked the account for nothing but transferring money.
The essential ingredient of Secs. 66 and 66C are the fraudulent and dishonest use of
electronic information of the other. In Emperor v. Sanjiv Ratnappa47 it was held that the term
fraudulently is accompanied by a wrongful gain to a person and a corresponding loss to the
47
(1932) 34 BomLR 1090
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other. A person is said to gain wrongfully when such person obtains something wrongfully,
as well as when he cause wrongful loss to another. "Wrongful loss" is the loss by unlawful
means of property to which the person losing it is legally entitled48. In the present case, both
have happened. Both the accused conspired together and hacked the account, for illicit
transfer causing a huge money loss to the deceased and his family. This amounts to phishing
under Sec. 66C of Information Technology Act. Thus the accused had wrongful gain by
illegal access and transfer of money. Thus the accused are liable to be punished under the
said sections of Information Technology Act.
4.2. The accused used technological devices to hack into the deceased’s bank account
Whoever intrudes into another‟s private accounts by circumventing securities is said
to have done hacking. According to Section 66 of IT Act if the account of the victim is
compromised by the phisher which is not possible unless and until the fraudster fraudulently
effects some changes by way of deletion or alteration of information/data electronically in the
account of the victim residing in the bank server, such acts are punishable. In the present
case, the accused, both tech gurus, knowing that the deceased has amassed enough and more
conspired together to drain money from the deceased‟s bank account for their spendthrift life.
DW2 provided assistance by arranging key-logger, for the commission of the said offences
and DW1 did all other necessary arrangements and caused wrongful loss to the deceased and
his family. Hence it is respectfully before the honorable court that the accused are liable to be
punished under Sec.66 and 66C of Information Technology Act, 2000.
48
Indravadan @ Indubhai Chimanlal v. State Of Gujarat (1993) 2 GLR 1351
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ISSUE V
5. WHETHER THE ACCUSED MR.RAHUL IS LIABLE TO BE PUNISHED FOR
OFFENCES ALLEGED UNDER SECTION 109 OF BHARAT PENAL CODE?
It is humbly submitted before this Hon‟ble Court that the accused Mr.Rahul is liable to
be punished for offences alleged under section 109 of Bharat Penal Code. The said section
prescribes the punishment of abetment if the act abetted is committed in consequence and
where no express provision is made for its punishment.49
5.1 The accused is liable to be punished for abetment under Sec.109
A person abets the doing of a thing when (1) he instigates any person to do that act; or (2)
engages with one or more other persons in conspiracy for the doing of that thing; or (3)
intentionally aids, by act or illegal omission, the doing of that.50 In the present case, Mr.Rahul
has done all of the above. His presence is notable from the very beginning, he aided and
instigated Manohar and he was the one who facilitated the crime. A person is said to instigate
another when he urges forwarded or provokes, incites urges or encourages such person to do
an act prohibited by law.51 He had instigated the other commit the offence and has rendered
intentional aid by engaging in illegal acts.52 In the present case, the accused has actively
suggested, stimulated, supported, insinuated the offence53 and is thus liable for abetment.
49
Bharat Penal Code, Sec109
Malan v. State of Maharashtra AIR 1960 Bom 393
51
Ramabatar Agarwalla v. State (1983) CrLJ 122 (Ori)
52
Ami lal v. State Of Rajastahan(1996)CrlJ 1585 (Raj)
53
Baby John . State AIR 1953 Tr& Coch 251; Nazir Ahmad v. Emperor AIR 1927All 730; Re Lakhmi Narayan
Aiyer AIR 1918 Mad 738
50
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LIST OF PROSECUTION WITNESSES
WITNESS
NAME
PW1
Mr. Raghav
PW2
Mr.Devika
PW3
Ms.Kalra
PW4
Ms.Bhatia
PW5
Mr.Aamir Ali
PW/DW
Mr. Hashmeet
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LIST OF DOCUMENTS
DOCUMENT NO.
DOCUMENT DESCRPITION
Annexure 1
First Information Report
Annexure 2
Panchnam/Mahazar
Annexure 3
Post Mortem Report
Annexure 4
Forensic analysis Report
Annexure 5
Statement of Witnesses
Annexure 6
Report of Investigating Officer
Annexure 7
Expert Witness-Hashmeet
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LIST OF MATERIALS OBJECTS
MATERIAL OBJECT NO.
DESCRIPTION
MO1
Desktop computer
MO2
Karan‟s laptop
MO3
Mano‟s laptop
MO4
Prescription of Dr.Choudhary
MO5
Key logger-mass storage device-look-a-alike
MO6
Syringe
MO7
A packet/box of medicines
MO8
Hard Drive
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APPENDIX
RELEVANT EXTRACTS OF THE INDIAN PENAL CODE, 1860
Sec.24. Dishonestly
Whoever does anything with the intention of causing wrongful gain to one person or
wrongful loss to another person is said to do that thing “dishonestly”.
Sec.25. Fraudulently
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not
otherwise.
Sec. 29. Document
The word “document” denotes any matter expressed or described upon any substance by
means of letters, figures, or marks, or by more than one of those means, intended to be used,
or which may be used, as evidence of that matter.
Explanation 1.—It is immaterial by what means or upon what substance the letters, figures
or marks are formed, or whether the evidence is intended for, or may be used in, a Court of
Justice, or not.
Illustrations -A writing expressing the terms of a contract, which may be used as evidence of
the contract, is a document. A cheque upon a banker is a document. A power-of-attorney is a
document. A map or plan which is intended to be used or which may be used as evidence is a
document. A writing containing directions or instructions is a document.
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Explanation 2.—Whatever is expressed by means of letters, figures or marks as explained by
mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks
within the meaning of this section, although the same may not be actually expressed.
Illustration -A writes his name on the back of a bill of exchange payable to his order. The
meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to
the holder. The endorsement is a document, and must be construed in the same manner as if
the words “pay to the holder” or words to that effect had been written over the signature.
Sec.34. Acts done by several persons in furtherance of common intention
When a criminal act is done by several persons in furtherance of the common intention of all,
each of the persons is liable for that act in the same manner as if it were done by him alone.
Sec.109. Punishment of abetment if the act abetted is committed in consequence and
where no express provision is made for its punishment
Whoever abets any offence shall, if the act abetted is committed in consequence of the
abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation.—An act or offence is said to be committed in consequence of abetment, when
it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with
the aid which constitutes the abetment.
Sec.120A. Definition of criminal conspiracy
When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
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(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy: Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether
the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Sec.120 B. Punishment of criminal conspiracy
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the manner as if he had abetted as if he had abetted such offence.
(2)Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for
a term not exceeding six months, or with fine or with both.
Sec. 300. Murder
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death, or—
(Secondly) —If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or—
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(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
Sec.302. Punishment for murder
Whoever commits murder shall be punished with death, or [imprisonment for life], and shall
also be liable to fine.
Sec.463. Forgery
Whoever makes any false documents or false electronic record or part of a document or
electronic record, with intent to cause damage or injury], to the public or to any person, or to
support any claim or title, or to cause any person to part with property, or to enter into any
express or implied contract, or with intent to commit fraud or that fraud may be committed,
commits forgery.
Sec.465. Punishment for forgery
Whoever commits forgery shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
RELEVANT EXTRACTS OF THE INFORMATION TECHNOLOGY ACT, 2000
Sec.43 Penalty and compensation for damage to computer, computer system, etc
If any person without permission of the owner or any other person who is in charge of a
computer, computer system or computer network,-
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(a) accesses or secures access to such computer, computer system or computer network [or
computer resource];
(b) downloads, copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data held or stored
in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into
any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network,
data, computer data base or any other programs residing in such computer, computer system
or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorized to access any computer,
computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system
or computer network in contravention of the provisions of this Act, rules or regulations made
there under;
(h) charges the services availed of by a person to the account of another person by tampering
with or manipulating any computer, computer system, or computer network,
(i) destroys, deletes or alters any information residing in a computer resource or diminishes
its value or utility or affects it injuriously by any means;
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(j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter
any computer source code used for a computer resource with an intention to cause
damage; [he shall be liable to pay damages by way of compensation to the person so
affected].
Explanation.- For the purposes of this section,(i) "computer contaminant" means any set of computer instructions that are designed(a) to modify, destroy, record, transmit data or program residing within a computer, computer
system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or
computer network;
(ii) "computer database" means a representation of information, knowledge, facts, concepts or
instructions in text, image, audio, video that are being prepared or have been prepared in a
formalized manner or have been produced by a computer, computer system or computer
network and are intended for use in a computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or program that
destroys, damages, degrades or adversely affects the performance of a computer resource or
attaches itself to another computer resource and operates when a programme, data or
instruction is executed or some other event takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource
by any means;
(v) "computer source code" means the listing of programs, computer commands, design and
layout and program analysis of computer resource in any form.
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Sec.66 Computer related offences
If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be
punishable with imprisonment for a term which may extend to three years or with fine which
may extend to five lakh rupees or with both.
Explanation. -For the purposes of this section,(a) the word "dishonestly" shall have the meaning assigned to it in section 24 of the Indian
Penal Code (45 of 1860);
(b) the word "fraudulently" shall have the meaning assigned to it in section 25 of the Indian
Penal Code (45 of 1860)
Sec. 66C Punishment for identity theft
Whoever, fraudulently or dishonestly make use of the electronic signature, password or any
other unique identification feature of any other person, shall be punished with imprisonment
of either description for a term which may extend to three years and shall also be liable to
fine with may extend to rupees one lakh.
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PRAYER
For the foregoing reasons in the light of arguments advanced and authorities cited, the
prosecution humbly prays that the Hon‟ble Court may be pleased to adjudge and declare that:
1. The Accused be held guilty for the charges of murder u/s 302 of the B.P.C.
2. The Accused be held guilty of forgery u/s 465 read with Section34 of the B.P.C
3. The Accused be held guilty for the charge of criminal conspiracy u/s 120B of the
B.P.C.
4. The Accused be held guilty u/s 66 & 66C of Information Technology Act 2005.
5. The Accused be held guilty u/s 109 of B.P.C
AND/OR
And pass any other order in favor of the Prosecution as it deems fit in the interest of justice,
equity and good conscience
All of which is most humbly and respectfully submitted
Place: Xanadu
Sd/COUNSELS FOR THE PROSECUTION
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