COMMON INDUCTION MOOT 2018, CAMPUS LAW CENTRE

IN THE HON’BLE COURT OF SESSIONS,

WESTEROS

Case No. of 2018

Criminal Jurisdiction Under Section 209

of the Westeros Code of Criminal
Procedure, 1973 STATE Prosecution

STATE ...………………………… Prosecution

v.

NED SCAR & JON SCAR ...……………...……………... Defence

COUNSEL APPEARING ON BEHALF OF THE PROSECUTION

MOST RESPECTFULLY SUBMITTED TO SESSIONS JUDGE

MEMORIAL ON BEHALF OF PROSECUTION

2018

-MEMORIALONBEHALFOFTHEPROSECUTION-
 TABLE OF CONTENTS

LIST OF ABBREVIATION………………………….…………….……….……………......................2

INDEX OF AUTHORITIES.…………………….…….………………….………………………..…..3

STATEMENT OF JURISDICTION…………………………………………………………………....5

STATEMENT OF FACTS……………………….……………….……….……………........................6

STATEMENT OF ISSUES…………………………………………………………..………………....8

i. WHETHER THE ACCUSED ARE PUNISHABLE FOR KIDNAPPING UNDER SECTION 363 OF
WESTEROS PENAL CODE?

ii. WHETHER THE ACCUSED ARE PUNISHABLE UNDER SECTION 302 OF WESTEROS PENAL
CODE FOR COMMITTING MURDER?

iii. WAS THE ELEMENT OF COMMON INTENTION PRESENT AMONG THE ACCUSED WHILE
COMMITTING THE CRIME UNDER SECTION 34 OF WESTEROS PENAL CODE?

iv. WHETHER THE ACCUSED ARE LIABLE FOR PUNISHMENT FOR CRIMINAL CONSPIRACY
UNDER SECTION 120-B OF WESTEROS PENAL CODE?

SUMMARY OF ARGUMENTS…...…….…………….………………….………..……………….....9

ARGUMENTS ADVANCED………………………………………………………………………....11

PRAYER……………………………………………………………………………………………....27

1
 List of Abbreviations

S. No. Abbreviation Full Form

1. ¶ Paragraph
2. & And
3. ABR All India Reports-Bombay High Court
Reports
4. ACR Allahabad Criminal Rulings
5. Add. Additional
6. AIR All India Reporter
7. ALT Andhra Law Times
8. All. Allahabad
9. Anr. Another
10. Cr.P.C. Code of Criminal Procedure
11. ed. Edition
12. Exh. Exhibit
13. Guj. Gujarat
14. Hon’ble Honourable
15. i.e. That is
16. IPC Indian Penal Code
17. Mohd. Mohammed
18. NOC Notes on Cases
19. Ors. Others
20. PW Prosecution Witness
21. SC Supreme Court
22. SCC Supreme Court Cases
23. SCR Supreme Court Reporter
24. Sec. Section
25. Sr. Senior
26. u/s Under Section
27. v. Versus
28. Vol. Volume

2
 Index of Authorities

CASE LAWS

AWS(P&H)-2006-2-121, High Court Of Punjab And Haryana, Criminal Appeal No.

979/2010

Deepak Chandrakant vs. State of Maharashtra

Emperor V. Ismail Sayadsaheb Mujawar, Criminal Reference No. 125 of 1932

Ningappa Yallappa Hosamani and Ors. vs. State of Karnataka and Ors.

Raja Ram vs State, Criminal Appeal No. 211/2013

Rajwant Singh v. State of Kerala [AIR 1966 SC 1874

Rambilas Singh And Ors. vs State Of Bihar as on 6 April, 1989

Ram Lochan Ahir vs State Of West Bengal

Shambu Nath Mehra Vs State of Ajmer, [1956] SCR 199

State of Maharashtra v. Suresh : (2000) 1 SCC 471

State of West Bengal v. Mir Mohammad Omar & Ors. etc.etc., AIR 2000 SC 2988

Sushil Suri v. CBI, (2011) 5 SCC 708

Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681

BOOKS

Universal Law Publishing, “Indian Penal Code (45 of 1860)”, Ed. 2018

Universal Law Publishing, “The Code of Criminal Procedure, 1973 (2 of 1974)”, Ed. 2018

Universal Law Publishing, “The Indian Evidence Act 1872 (1 of 1872)”, Ed. 2018

DICTIONARIES

Oxford English Dictionary

Collins English Dictionary

Google Dictionary

3
STATUTORY COMPILATIONS

THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974)

THE INDIAN EVIDENCE ACT, 1872 (1 OF 1872)

THE INDIAN PENAL CODE, 1860 (45 OF 1860)

INTERNET SITES

http://www.supremecourtcaselaw.com

http://www.scconline.com

http://www.lexis-nexis.com/universe

https://www.indiankanoon.org

http://www.exploreforensics.co.uk/

https://www.researchgate.net

http://www.legalserviceindia.com

4
 Statement of Jurisdiction

The Complainant has approached the Hon’ble Court of Sessions, Westeros to exercise its
jurisdiction as per Section 209 of Westeros Code of Criminal Procedure, 1973. The Prosecution
submits that the Hon’ble Court at Westeros has the jurisdiction over the matter.

Section 209 of Code of Criminal Procedure, 1973 is read as follows:

“Commitment of case to Court of Sessions of Westeros 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 Sessions, he shall-

(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may
be, the case to the Court of Session, and subject to the provisions of this Code relating to bail,
remand the accused to custody until such commitment has been made;]

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during,
and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are
to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.”

5
 Statement of Facts

Background

• Westeros, a developing country in South Asia was a battleground in 1850s for resources
such as precious stones, uranium and iron ore. Later, two families, Sinister and Scar
had dominated the lands and resources of Westeros, thereby, wielding monopoly and
power in their hands, due to which, later on these families flourished while not giving
fair opportunities to each other.
• The business empire of Scar Enterprises was developed from scratch by the Scar family.
But, due to constant state of industrial war between the two families, Scar family had
lost their business to Sinister family. As there was no viable opportunity in
neighbourhood to survive their business, the Scar family had further lost everything in
order to revive their business.
• Mr. Stark Sinister acquired Scar Enterprises business by illegal means as on 8th Day of
Navratra, 1872.

Scenario

• Mr Jamie Sinister, great-grandson of Mr. Star Sinister, having a family of wife and two
sons. Tommen and Joffrey (now deceased), is a successful business tycoon with
business based in heart of Westeros. Jamie’s personality was eye catchy because of his
extravagant and flamboyant nature.

The Incident

• On 8th Day of Navratra 2017, Tommen and his younger brother Joffrey had gone to
High Priest’s Temple in King’s Landing for evening prayers. The place was crowded.
On the same day, after evening prayer, Tommen started to search for Joffrey, but could
not find him. Having assumed that Joffrey was home, Tommen went back to his home
and found Joffrey did not return from Temple.
• Tommen, taking seriousness of matter informed his father, Mr. Jamie about Joffrey’s
disappearance. Thereafter, Tommen and Jamie along with their friends had started a
look out search for Joffrey that whole night.

6
• Next Day i.e. 9th Day of Navratra 2017, Jamie received call from unknown number and
caller. Unknown caller informed Mr. Jamie that Joffrey was kidnapped by them and
under no situation should they inform the matter to the police and that Mr. Jamie must
wait for further instruction.

The Investigation

• Immediately, Mr. Jamie reached out to the local police station of King’s Landing and
registered a FIR. Thereafter, taking statements from Tommen and his father, Jamie,
police started their investigation.
• With passage of 6 months, no substantial discovery was made in the case and even the
origin of call made to Mr. Jaime (on 9th Day of Navratra) could not be established.
However, police officials had received an anonymous tip on 29th March 2018 that two
descendants of Scar family, Jon and Ned Scar had kidnapped and killed Joffrey.
• Upon receiving the information, police inspector Mr. Singh arrested the two accused
for kidnapping and killing Joffrey. Jon, one of two accused, had confessed to Mr. Singh
(in light of two independent witnesses) that the duo had committed the act of
kidnapping and killing Joffrey. Mr. Singh and the two accused reached “Red Keep”
locality, where the accused had confessed of storing dead body of Joffrey. The Red
keep house belongs to Mr. Gendry, from where the dead body was recovered in a well.
• Post Mortem examination ascertained that the remains were of 11-year-old boy, after
which DNA testing concluded that it was Joffrey’s remains.
• The Police filed charges against the two accused, Ned Scar and Jon Scar, under Sections
302, 363, 34, 120-B of Westeros Penal Code.

7
 STATEMENT OF ISSUES

I.

WHETHER THE ACCUSED ARE PUNISHABLE FOR KIDNAPPING UNDER

SECTION 363 OF WESTEROS PENAL CODE?

II.

WHETHER THE ACCUSED ARE PUNISHABLE UNDER SECTION 302 OF

WESTEROS PENAL CODE FOR COMMITTING MURDER?

III.

WAS THE ELEMENT OF COMMON INTENTION PRESENT AMONG THE

ACCUSED WHILE COMMITTING THE CRIME UNDER SECTION 34 OF
WESTEROS PENAL CODE?

IV.

WHETHER THE ACCUSED ARE LIABLE FOR PUNISHMENT FOR

CRIMINAL CONSPIRACY UNDER SECTION 120-B OF WESTEROS PENAL
CODE?

8
 Summary of Arguments

1. THE ACCUSED AND CO-ACCUSED SHOULD BE PUNISHED FOR

KIDNAPPING UNDER SECTION 363 OF WESTEROS PENAL CODE.

The confession of Jon Scar states that on 29th September 2018 i.e. the 8th day of
Navratra, had taken Joffrey from outside the High Priest’s Temple on the bike of
accused. They asked the deceased to go out of the temple on wrongful pretext of
bringing worshipping materials. However, this was done to make sure the deceased and
the accused are out of sight of anyone as the temple was highly crowded. They had the
intention to get ransom from Mr. Jamie Sinister and to take revenge which is validated
from the statement given by Mr. Gendry to the police. This way they had also
committed an act of kidnapping from lawful guardianship of Mr. Jamie. It is also
brought to the knowledge of the court that the accused are also punishable for
kidnapping because of wrongfully confining a person which shall be punished in same
manner as if they had kidnapped the deceased for the same intention which is clear by
the confession from co-accused Jon Scar that Ned Scar had taken the deceased to H No.
112 for keeping him in confinement until ransom was received from Mr. Jamie Sinister.

2. THE ACCUSED SHOULD BE PUNISHED UNDER SECTION 302 OF

WESTEROS PENAL CODE TO BE READ ALONG WITH SECTION 34 OF
WESTEROS PENAL CODE.

The accused and co-accused have committed Murder. Ned and Jon Scar have
committed the act, wherein, they had the intention to cause bodily injury to the deceased
and it was sufficient in the ordinary course of nature to cause death of the deceased.
The accused on the evening of 29th September 2017 had kidnapped the deceased, after
which, they both had tied the deceased and had put him inside a sack. It is in the
knowledge of general adult that anything placed inside the sack is generally used for
storing goods and materials. Sacks are made of strong materials which are hard for a
normal grown up human to tear either from inside or outside. Therefore, it was

9
 impossible on the humanly power of the deceased, an 11-year-old boy to cut it open
with his hands and legs tied-up.

It was also forceable on the part of the accused (while performing the act) and that if
anyone is kept inside any container, sack, bag etc. then his/her chances to die increase
due to suffocation or asphyxiation. Also, Mr. Gendry had stated in his statement that
the accused Ned Scar was revengeful in pursuit of taking down the Sinister family
because of personal enmity. Hence, this leads to furtherance of common intention under
Section 34 of IPC.

3. THE ACCUSED ARE PUNISHABLE FOR OFFENCE OF CRIMINAL

CONSPIRACY UNDER SECTION 120-B OF WESTEROS PENAL CODE.
The kidnapping of deceased was already a part of premediated plan which the duo had
executed. This finding is corroborated by the statement of Jon Scar who told Mr. Singh
that they wanted to extort monetary sum (ransom) from Mr. Jamie and that death of
Joffrey had failed their objective. Kidnapping was an offence which had element of
agreement from both the accused while charting out plan and executing it.

Also, this is purely based on evidence in the statement of Mr. Gendry that the accused
Ned Scar was overwhelmed by the feeling of revenge that he could take any road
necessary to take revenge from the family. Taking the note of statement of Jon Scar that
they had tied the deceased and put him inside the sack, they, had definitely thought of
extorting ransom from Mr. Jamie, but also, they both had participated in the act of
putting deceased inside the sack and leaving the place. Ned Scar had the intention of
killing the deceased which was implicit from his action of signalling Jon Scar to tie the
deceased and then, together, putting the body inside the sack. Here, Jon Scar actively
participated with free choice and will.

One important thing to point out is that the deceased was not given any food or liquid
to eat or drink for the rest of the night. Had this been the case, the deceased would have
been alive. Moreover, none of the accused thought of providing the deceased with any
food or liquid. This act proves the mindset of killing the deceased with preconceived
idea.

10
 Arguments Advanced

1. Ned Scar and Jon Scar should be punished for kidnapping under Section 363 of
Westeros Penal Code1.

It is most humbly submitted before this Hon’ble Court that after investigation in the
case of kidnapping and killing of Joffrey Sinister2, a case under Section 363 of Westeros
Penal Code has been registered against Jon Scar3 and Ned Scar4.

“Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from

lawful guardianship, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine.”5

It is submitted to the court that to constitute an offence under Section 363 of WPC,
kidnapping under Section 359 of WPC provides for two kinds:
a. Kidnapping from India, or
b. Kidnapping from lawful guardianship

1.1.Kidnapping from Lawful Guardianship

Section 361 of WPC provides for Kidnapping from Lawful Guardianship as
follows:“Whoever takes or entices any minor under 1[sixteen] years of age if a male,
or under 2[eighteen] years of age if a female, or any person of unsound mind, out of
the keeping of the lawful guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor or person from lawful
guardianship.”

It is most humbly submitted that deceased, was the youngest son6 of Mr. Jamie Sinister
and Mrs. Sinister. Here, it is important to note that the deceased was a minor, 11-year-

1
Hereinafter “W.P.C”
2
Hereinafter “Deceased”
3
Hereinafter “Co-accused”
4
Hereinafter “Accused”
5
Section 363 of Westeros Penal Code
6
Stated in Factsheet

11
 old boy and the facts under Post Mortem report concludes on the basis of DNA Testing
that the remains recovered from the well were of Joffrey.7

Also, it is stated in the confession8 of co-accused in Westeros Criminal Procedure Code9

that the intention behind sending the deceased outside the temple (implicitly implied
where no one could see them) on pretext of bringing worshipping materials was to carry
the deceased on the bike by accused to “House No.112, Red Keep, King’s Landing”
with the motive of getting ransom from Sinister family.10

It is also confessed by co-accused that the act committed was part of a premediated
plan. The accused confessed as follows “Joffrey went away with Ned Scar, who carried
him to a prearranged house.”

1.2.It is further submitted that,

“Kidnapping for ransom, etc.—Whoever kidnaps or abducts any person or keeps a

person in detention after such kidnapping or abduction and threatens to cause death or
hurt to such person, or by his conduct gives rise to a reasonable apprehension that such
person may be put to death or hurt, or causes hurt or death to such person in order to
compel the Government or 2[any foreign State or international inter-governmental
organisation or any other person] to do or abstain from doing any act or to pay a
ransom, shall be punishable with death, or imprisonment for life, and shall also be
liable to fine.”11

will also be invoked as the motive was to get ransom. This is corroborated by the
confession of Jon Scar, who said “we had kidnapped Joffrey to earn easy money from
Jamie but he died therefore we could not ask for money”12.

7
Stated in Factsheet & Post Mortem Report
8
Confession under Section 161 of W.Cr.P.C.
9
Hereinafter “W.Cr.P.C”
10
Stated in Factsheet, Annexure 4
11
Under Section 364A of W.P.C.
12
Stated in Factsheet

12
 1.3.It is, hereby, submitted that in “Emperor vs Ismail Sayadsaheb Mujawar”13, Justice
Rangnekar observed, “I am, therefore, of opinion that the offence punishable under
Section 363 in the cases of minors is that contemplated in Section 361 and not one
comprising all minors in lawful guardianship.”
Hence, this is to clarify in case the defendant objects to the punishment as cited in
Section 363 of WPC.

1.4.The co-accused, having given the confession statement to inspector Singh that led to
resumption of the investigation proves that the veracity of circumstantial evidences hold
true as the chain of events as described by the accused, the Priest14 and Mr. Gendry15
are in sync with each other.

PW1 had stated in his statement16 that he had seen the deceased outside the temple
standing. It was at 6:30 PM-6:45 PM that electricity went out for 5-10 minutes and it
was at the time of distributing prasad that Tommen16 had come searching for Joffrey.
The next day i.e. 9th Day of Navratra (30th September 2018) police had come for
investigating the case and found a pair of slippers as evidence. As confessed by co-
accused that they had taken deceased away from temple at 7 PM before the deceased
could consume the prasad corroborates this fact.

PW2 also stated that his house i.e. House No. 112, Red Keep, King’s Landing, Westeros
belonged to him from where the dead body of deceased was recovered from the well in
the backyard of the house. This also corroborates the fact that the duo accused had put
Joffrey under wrongful confinement in the house which belonged to Mr. Gendry.

It is submitted that circumstantial evidence as brought in light by co-accused, PW1 and

PW2 support and corroborate each other and, hence, the accused are liable for
punishment under Section 363 for Kidnapping.

13
Emperor V. Ismail Sayadsaheb Mujawar, Criminal Reference No. 125 of 1932
14
Hereinafter, “PW1”
15
Hereinafter, “PW2”
16
Under Section 164 of W.Cr.P.C.

13
 2. Ned Scar and Jon Scar should be punished under Section 302 of Westeros Penal
Code to be read along with Section 34 of Westeros Penal Code.

It is submitted before the court that

“Punishment for murder.—Whoever commits murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to fine.”17

Murder under Section 300(3) of WPC, which reads as

“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—
(3)—If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be in-flicted is sufficient in the ordinary course of nature to cause
death,”

Supreme Court had observed the following in its landmark judgment in “Virsa Singh
vs. State of Punjab”18. In order to prove murder on part of the accused, following
essentials have to be proved beyond reasonable doubt:
a. Presence and Nature of Bodily Injury
b. Intention to cause that particular Injury which was not accidental or unintentional
c. Bodily injury was sufficient to cause death in ordinary course of Nature

The prosecution further provides for the reasons that need to be proved under Section
34 of WPC, which provides
“[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 such persons is liable for that act in the same manner as if it were done by him
alone.]”

2.1. Presence and Nature of Injury

The body of deceased, was put inside a sack (which was recovered from the well at
backyard of house of PW2). The Post Mortem report dated 31st March 2018 states that

17
Under Section 302 of W.P.C.
18
Virsa Singh vs The State Of Punjab 1958 AIR 465, 1958 SCR 1495

14
 “4. Cause of death remains open as no injuries found on the bones.”19 This means that
the death of the deceased remains “open for interpretation”.

It is respectfully submitted that since the deceased was put inside the sack while the
deceased was crying, therefore, the mere act of putting the deceased inside the sack
and, that too, throughout the whole night brings us to a point that such a time was well
within the cognisance and knowledge of any normal human being who can take
cognisance of the matter that there could be serious implications of keeping the living
being inside the sack which could ultimately lead to death by suffocation or
asphyxiation.

The prosecution submits that criminals sometime inadvertently asphyxiate a victim

with gags in the mouth or around the face. Lack of oxygen, either partial [hypoxia] or
total [anoxia], can cause death. Normal room air is approximately 21%
oxygen. Impairment of cognitive and motor function can manifest at oxygen
concentrations of 10-15%, loss of consciousness at less than 10%, while death usually
occurs at less than 8%.20

It is humbly requested to the court to consider the conclusion of presence of injury on

basis of aforementioned information as cited. It is the likelihood of asphyxia which the
prosecution has come to conclude as the only suitable reason for death of the deceased.

In Mohan Singh vs State of Madhya Pradesh21, it is held that “mere variance of

prosecution story with the medical evidence, in all cases, should not lead to conclusion
inevitably to reject the prosecution story. Court to make out efforts within the judicial
sphere to know the truth.”

2.2.Nature of Injury:
The overt acts of tying the deceased so as not to escape (implied) from the wrongful
confinement and putting the deceased into a sack and, later on, disposing the dead body

19
Stated in the Post Mortem Report
20
D. D’Souza, M. Rajesh, S. Harish, J. Kiran, Rigor mortis in an unusual position: Forensic considerations
21
Mohan Singh v. State of Madhya Pradesh, AIR 1999 SC 883: 1999 (2) SCC 428

15
 in the well (by wrapping with blanket) in the backyard of the house after 8-10 days as
confessed by the co-accused are in ordinary nature by themselves dangerous.

2.2.1. As per the confession of co-accused the deceased was crying upon which they took
the initiative of tying him and covering him with a sack and, thereafter, left the
house.

2.2.2. It should be noted here, that, the deceased was crying while he was still covered
with sack. The sobbing and covering with sack could have led to reduction in
oxygen level which might be the cause of death (asphyxia). It was dangerous on the
part of accused, who after having kidnapped did not look after the deceased and left
the scene without providing the deceased with anything to either eat or drink. Here,
the nature of injury inflicted could be ascertained to loss of oxygen to the brain and,
thereby, stoppage in the blood flow in the brain, which is likely to cause the death
by asphyxia.

2.2.3. Keeping in confinement the deceased covered in sack, it could be inherently implied
that the nature of injury sustained was of serious nature and highly dangerous,
probably leading to death, if no proper care was taken, like keeping check on the
deceased even if he was covered in sack.

2.3.Accused had the intention to cause bodily injury.

2.3.1. The co-accused confesses that the dead body of the deceased was thrown 8-10 after
the death of the deceased on 30th September 2017 in the well of the backyard of the
house which could be recovered. This is corroborated by the fact that the body was
recovered by police from the house PW2 which was taken on rent by the accused
on 27th September 2017 i.e. 2 days prior to the incident of kidnapping. The situation
of kidnapping, the time and the place can be corroborated by the statement of PW1
who had mentioned that around 6:45 PM the light had gone off for 10- 15 minutes,
which was well within the timeframe for incident to take place. The time specified
by co-accused was 7 PM when they had kidnapped the deceased from the Temple.
The evidence of slippers gathered from the Temple (as mentioned by PW1) also

16
 confirms the place where deceased was present. Tommen, brother of the deceased
was also searching for Joffrey at the temple.

2.3.2. Once these facts viz. recovery and identification of the dead body stand established,
what is required to be seen is whether, there are other materials to connect the
recovery with the crime and ascertain the culprits.

2.3.3. Dr. Samuel Tully, Director of Medicolegal Institute Government of Westeros had
reported the examination of the remains of the deceased and stated the following:

“My opinion after thorough examination of the remains is as follows: Bones

examined are of human in origin 2. Sex appears to be male. 3. Age of the deceased
was 11 yrs +/- 6 months. 4. Cause of death remains open as no injuries found on
the bones. 5. Duration of death was approximately 6 months +/- 1 months.”22

It should be noted that the cause of the death mentioned is “remain open as no
injuries found on bones”. According to the confessional statement of the accused,
it can be inferred23 that the deceased died of suffocation/asphyxiation i.e. loss of
oxygen supply to lungs and brain. Six months of time is sufficient enough for a
body completely left in water to get disoriented and to infect the internal organs
with bacteria.24

In the case of State of Maharashtra vs. Suresh25, the Supreme Court examined the case
law and the provisions of Sections 27, 106 and 114 of the Indian Evidence Act and
observed:

"We too countenance three possibilities when an accused points out the place where a
dead body or an incriminating material was concealed without stating that it was
concealed by himself. One is that he himself would have concealed it. Second is that he
would have seen somebody else concealing it. And the third is that he would have been
told by another person that it was concealed there. But if the accused declines to tell

22
Stated in Post Mortem Report dated 31st March 2018
23
Inferred from the acts committed by the two accused
24
D. D’Souza, M. Rajesh, S. Harish, J. Kiran, Rigor mortis in an unusual position: Forensic considerations
25
State of Maharashtra v. Suresh : (2000) 1 SCC 471

17
 the criminal court that his knowledge about the concealment was on account of one of
the last two possibilities the criminal court can presume that it was concealed by the
accused himself. This is because the accused is the only person who can offer the
explanation as to how else he came to know of such concealment and if he chooses to
refrain from telling the court as to how else he came to know of it, the presumption is a
well-justified course to be adopted by the criminal court that the concealment was made
by himself. Such an interpretation is not inconsistent with the principle embodied in
Section 27 of the Evidence Act."

Here, the co-accused himself led to circumstantial evidences and completely, without
any doubt, thus taking the responsibility of accepting to disposing of evidence in order
to conceal the death of deceased. It is implied from the statement of co-accused that the
dead body of deceased was concealed by them.

Also, it is important on the part of prosecution to give “credence” to the “confessional

statement” of co-accused which was made in presence of police inspector Mr. Singh.
In the light of the same it is, hereby, explained as follows- “How much of information
received from accused may be proved.—Provided that, when any fact is deposed to as
discovered in consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby discovered, may
be proved.”26

Therefore, the burden of proving such information as received from the accused in
police custody does not mandatorily lie on prosecution.

In Suresh Chandra Bahri v. State of Bihar27, the Supreme Court observed that- "71. The
two essential requirements for the application of Section 27 of the Evidence Act are
that (1) the person giving information must be an accused of any offence and (2) he
must also be in police custody. The provisions of Section 27 of the Evidence Act are
based on the view that if a fact is actually discovered in consequence of information

26
Section 27 of Westeros Evidence Act
27
Suresh Chandra Bahri vs State Of Bihar, 1994 AIR 2420, 1995 SCC Supl. (1) 80

18
 given, some guarantee is afforded thereby that the information was true and
consequently the said information can safely be allowed to be given in evidence because
if such an information is further fortified and confirmed by the discovery of articles or
the instrument of crime and which leads to the belief that the information about the
confession made as to the articles of crime cannot be false.”

Therefore, it is humbly submitted to the court that in the present case as discussed above
the confessional statement of the disclosure made by the co-accused is confirmed by
the recovery of the dead body and, therefore, there is reason to believe that the
disclosure statement was true and the evidence led in that behalf is also worthy of
credence.

In yet another case, Ram Lochan Ahir vs. State of West Bengal28, the Supreme Court
observed that the only aspect required to be scrutinised is whether the prosecution was
successful in proving that the “recovery was only with the aid of the accused”.
Therefore, according to facts it is clear that Inspector Singh, after having arrested
accused upon receiving information, had approached the house as stated above and
found the evidence i.e. dead body which can be treated as highly criminating evidence.
Also, the co-accused was aided by the accused as PW2 confirms that accused had taken
the keys of the house for rental purpose for one month, wherein the crime happened.

In Harvinder Singh vs. State29, a Division Bench of this Court had referred to the
judgments of the Supreme Court in cases30 regarding the question of recovery pursuant
to disclosure statement and the weight and evidentiary value attached to it.

The Supreme Court had observed in Deepak Chandrakant case that recovery of the dead
body is a highly incriminating circumstance, if it is satisfactorily and clearly established
that the police could not have traced out or recovered the body except on the basis of
the disclosure statement.

28
Ram Lochan Ahir vs State Of West Bengal
29
AWS(P&H)-2006-2-121, High Court Of Punjab And Haryana, Criminal Appeal No. 979/2010
30
Deepak Chandrakant vs. State of Maharashtra, Ningappa Yallappa Hosamani and Ors. vs. State of Karnataka
and Ors., State of Maharashtra vs. Suresh

19
 Since the occurrence has taken place in the house which was taken on rent by the
accused, therefore, and in such circumstances, explanation of the co-accused, assumes
significance for he can dispel and negate the prosecution evidence.

As stated in Raja Ram vs State31 “When a crime is committed within the confines of a
place which is in occupation of a person and there is no possibility of any other person
having come or operated from such place, such a person needs to disclose the facts and
give an explanation about what happened, as he only has the specific information about
it. In such circumstances, the law puts the onus on such fact knowing person to come
up with an explanation. We clarify that the initial burden of proving the guilt of the
accused remains essentially with the prosecution. However, once such burden is
discharged, it is upon the accused, to discharge the burden of explaining the fact which
is especially within his knowledge. If this were not the position in law, it would pose an
insurmountable task on the prosecution to prove and establish the participation of the
accused persons and their exact roles in the commission of crime. Though it is trite that
the onus probandi is always on the prosecution but this principle cannot be stretched
to absurd limits. The principle is meant to facilitate the delivery of justice and it cannot
be permitted to be interpreted in an obtuse manner so as to nullify its efficacy.”

"106. Burden of proving fact especially within knowledge. - When any fact is especially
within the knowledge of any person, the burden of proving that fact is upon him.”32

Therefore, the accused could have been held liable for intention merely for kidnapping,
but having furnished such information which led to formation of the chain of events
leading to the dead body of the deceased along with information provided by PW1 and
PW2 corroborate the facts which were in the knowledge of the two accused. Now, it is
the responsibility of the accused to provide a valid and strong argument which would
relieve them of their burden.

31
Raja Ram vs State, Criminal Appeal No. 211/2013
32
Refer. Westeros Evidence Act, 1872

20
 Also, in support of the above Supreme Court observation, the cases Shambu Nath
Mehra vs. State of Ajmer33, Trimukh Maroti Kirkan vs. State of Maharashtra34 & State
of W.B. v. Mir Mohammad Omar35 can also be interpreted in the same manner.

Section 106 of the Evidence Act refers to the phrase "especially within the knowledge
of any person". Only such facts are required to be disclosed which are in special
knowledge of the accused. The dead body has been recovered from the well which was
in the house rented by the accused. He could only have said as to how the dead body
was put into the well in the backyard of the house, and which was recovered on his
disclosure.

The testimony of PW2 that room rented by PW2 to accused Ned Scar for something
mischievous or dangerous is unshakable as it is very well established and corroborated
that the co-accused confessed of keeping the deceased in the vicinity of the same house
which was rented by PW2 to accused and it was specifically stated by the accused
himself that it was “pre-arranged”.

One more important aspect pertaining to the case arises here. The accused had stated to
PW2 (as mentioned in PW2’s statement) that “There are lots of ways of earning money
my friend, some legitimate and some not so. The Sinisters have looted the Scars for
generations, their day of reckoning is near” on questioning by PW2 about as to how he
had such a huge amount of 45000/-. Therefore, here, it can be inferred from the
conversation between the two that personal enmity, viz. an element of intention, had a
significant impact in executing such a plan of kidnapping and murder.

It is worthwhile to argue as to why did the accused Ned Scar used the phrase “their day
of reckoning is near”. Reckoning is defined36 as “the avenging or punishing of past
mistakes or misdeeds.” This is purely a deed having intention of taking revenge and the
accused could have gone through any means necessary to take revenge even if it took
to inflict bodily injury on the deceased. The act committed by the accused was an

33
Shambu Nath Mehra Vs State of Ajmer, [1956] SCR 199
34
Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681
35
State of West Bengal v. Mir Mohammad Omar & Ors. etc.etc., AIR 2000 SC 2988
36
https://en.oxforddictionaries.com/definition/reckoning

21
 intentional one as they had put the deceased in the sack after tying him which was
sufficient to cause death in ordinary course of nature. The deceased has died in
consequence of such acts. Here, the two accused are to be held guilty for murder.

The main idea behind putting the deceased in the sack was to make him suffer even if
for it was for little time in rage of personal enmity. The house was empty so they could
have merely tied the deceased and shut his mouth. The question here arises is why did
they put the deceased in the sack? They could have come back and removed the sack.
But, none of them bothered to do so. This indicates that both the accused had intention
to cause bodily injury physically as well as mentally because the deceased was given
no room to gasp for a sigh of breath which could only evaded had the deceased been
only tied. The act of tying and keeping the deceased in the sack (which was not
required) merely proves their intention to inflict bodily injury which was likely to cause
death.

2.4.The bodily injury inflicted was sufficient in the ordinary course of nature to cause death.
The words “sufficient” and “ordinary course of nature” gain importance, here. Word
sufficient connotes to “adequacy” which means the act itself was adequate enough to
cause death of the deceased. Keeping a person in a sack with hands and legs tied up, it
is near to impossible to escape from the wrath of asphyxiation. It is also understood in
general terms that if any living being is kept in bag, sack, box etc. and covered from all
sides then the torment of death will soon befall upon the victim. The reason would be
suffocation or asphyxiation. By ordinary course it is implied in generally viz. if any
normal human being under normal circumstances comes across such a situation then he
or she would be likely to die unless any precaution is taken at the right time.

Therefore, in Rajwant Singh v. State of Kerala37, the court held that the case is covered
by third clause of s. 300……The ordinary course of nature was not interrupted with any
intervening act of another and whatever happened was the result of the acts of assailants
and nothing else. It was hardly necessary to prove more than the acts themselves and
the causal connection between the acts and the end result. The sufficiency of the injury

37
Rajwant Singh v. State of Kerala [AIR 1966 SC 1874

22
 was objectively established by the nature and quality of the acts taken with the
consequence which was intimately related to the acts.

2.5.Section 34 of WPC to be read with Murder under Section 300 (c) of W.P.C.

[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 such persons is liable for that act in the same manner as if it were done by him
alone.]38

The word “furtherance” must be noted here. The phrase common intention in
comment(ii)39 means “pre-oriented plan” and acting in pursuit of the plan; also, stated
that it is not necessary to prove that each and everyone of them had indulged in overt
acts.

Based in the confession of co-accused, it is out rightly stated and confessed that the
house where the incident happened was “pre-arranged”, which is later corroborated by
the statement of PW2 that the house was given to accused for a duration of 1 month
starting from 27th September 2017. This was two days prior to the incident of
kidnapping. Again, it was stated by the co-accused that when 8-10 days had passed and
the dead body started to smell, they had “planned” to carry the sealed dead body
wrapped in blanket to the backyard and “as per the plan” had threw it into the well.

The fact that both the accused had tied the deceased first and then put him in the sack
leads to the inference that they had both had acted in their rational behaviour in that
situation satisfying the criteria of common intention of committing the act. Also, none
of the accused had come to check on the deceased condition.

Point to note here is that the Ned had indicated Jon to tie and, thereafter, together, they
put him in the sack. In this instance, the common intention was formed in the course of
occurrence as derived from co-accused confession and it was accused who had

38
Section 34 of W.P.C.
39
Comments under Section 34 of W.P.C.

23
 indicated co-accused to tie the deceased, after which the sack procedure followed. This
proves that the act committed by both of accused was in “furtherance” of common
intention i.e. for successful attainment of objective.

3. The accused are punishable for offence of criminal conspiracy under Section 120-
B of Westeros Penal Code.
“[120B. Punishment of criminal conspiracy.—
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with
death, ……be punished in the same manner as if he had abetted such offence.]”40

“[120A. Definition of criminal conspiracy.—When two or more persons agree to do,

or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agree-ment 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.]”41

“The essential ingredient of the offence of conspiracy, is therefore, an agreement to

commit an offence. Mere proof of such agreement is sufficient to establish criminal
conspiracy (as observed in Sushil Suri vs. CBI42). The offence of conspiracy can be
proved either by direct evidence or circumstantial evidence or by both.”
53. The agreement to commit an illegal act (offence), may be proved by necessary
implication as the offence of conspiracy has its foundation in an agreement to commit
an offence”

It is humbly submitted that the accused had taken the keys as on 27th September 2017,
and it was on 29th September 2017 that the incident of kidnapping took place and
thereafter which led to murder. The two days had elapsed wherein it could be implied
that the two accused had common intention of performing the act which was sufficient
enough to be planned and executed. However, it could be formulated that before the

40
Section 120-B of WPC reads
41
Section 120A in The Indian Penal Code
42
Sushil Suri v. CBI, (2011) 5 SCC 708

24
day of the incident the two accused might have formed the common intention to execute
the act leading to death. Here, the phrase, “meeting of minds” has been proved.

When we take the facts on their face value then it is evident that the chain of events
leading to the death of the deceased was because of the duo had been acted with respect
to the planning as planned according to the conspiracy formulated beforehand i.e. in
furtherance of the object of conspiracy hatched.

Based on co-accused’s confession, it could be inferred that it was on the indication of

accused they had tied and put the deceased in the sack. It must be noted that, Jon had
the option of not participating in the act and simultaneously not be part of killing the
deceased. However, he acted in the furtherance of intention to kill the deceased which
was also the object of accused.

The whole conspiracy started right from charting the plan of arranging the place for
crime. This is corroborated by the confession of the accused Jon that they had taken the
deceased to the house which was “pre-arranged”. Therefore, the chain of events leads
us to conclude that the accused are guilty for criminal conspiracy and must be punished
under Section 120-B.

We have gone to the core of the matter to ascertain whether any reasonable doubts in
the prosecution case are available on record. The confession of co accused, statements
of witnesses and the doctor who conducted the post mortem complete the chain of
events.

Summing up, the case is fully proved beyond all reasonable doubts. We feel that despite
some inconsistencies in the prosecution version, the prosecution version is highly
credible and if relied upon, would not defeat the ends of justice.

We have also given our earnest and solemn consideration to the fact whether the
accused have committed the crime or "could possibly have committed" the crime. The
chain of events which have been reproduced by us, affirms that the accused has killed
the deceased and thereafter, successfully concealed the dead body, for the purpose of
screening the offence.
25
 Recovery of the dead body at the instance of the accused from the well of the house
taken by him on rent pursuant to his disclosure statement has been proved and
established beyond doubt. Before the disclosure statement, the police had no inkling or
even suspicion that the dead body would be in the well of the house. The said room was
taken on rent by the appellant only one month prior to the occurrence.

It is important to note that Section 201 of WPC can be invoked as the duo accused had
caused the evidence to disappear to screen the offender.
“201. Causing disappearance of evidence of offence, or giving false information to
screen offender...…. if a capital offence.—shall, if the offence which he knows or
believes to have been committed is punishable with death, be punished with
imprisonment of either description for a term which may extend to seven years, and
shall also be liable to fine”43

In the confession of accused it is mentioned that after the death was ascertained by the
two, they had wrapped the body in the blanket and packed it in the sack after 8-10 days
and then sealed it which they threw into the well in the backyard of the house which
indeed was the plan.

It can be inferred that the duo had taken 8-10 days to “actually take time to think
through” to dispose evident to screen themselves from the grave offence of murder they
had committed which would have been punishable for death i.e. for punishment capital
offence.

43
Section 201 WPC

26
 PRAYER

Wherefore in the light of Issues Raised, Arguments Advanced, Reasons Given and
Authorities Cited, This Hon’ble Court may be pleased to:

I. Hold Ned Scar and Jon Scar Jointly Liable for Murder of Joffrey Sinister S/O
Mr. Jamie Sinister
II. Hold Ned Scar and Jon Scar Liable for Common Intention to murder the
deceased.
III. Hold Ned Scar and Jon Scar Liable for Criminal Conspiracy.

27