28th ALL INDIA MOOT COURT COMPETITION 2019, KERALA LAW ACADEMY

IN THE HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

PUBLIC INTEREST LITIGATION

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

CASE CONCERNING DISCRIMINATION BASED ON SEXUAL ORIENTATION

IN VIOLATION OF ARTICLE 21 AND 14 OF THE CONSTITUION

IN THE MATTER OF

FRIENDS OF LGBT AND ANOTHER…................................................PETITIONERS

V.

UNION OF INDIA....................................................................................RESPONDENTS

MOST RESPECTFULLY SUBMITTED BY COUNSEL APPEARING ON BEHALF OF THE

PETITIONERS

MEMORIAL ON BEHALF OF THE PETITIONERS

 INDEX

LIST OF ABBREVIATIONS…………………………………………………………….…….3

INDEX OF AUTHORITIES……………………………………………………………..……..4

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

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

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

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

ARGUMENTS ADVANCED…………………….……………………………………………10

 ISSUE 1: WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE

ACCUSED BY THE HC ON THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE
ADDUCED BY THE APPELLANT? ……….…………………………………………………10

 ISSUE 2: WHETHER THE PROSECUTION HAS PROVED THE ACCUSED GUILTY BEYOND
REASONABLE DOUBT? …………………….………………………………………………..15

PRAYER…………………….………………………………………………………..…………19

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 2

 LIST OF ABBREVIATIONS

Hon’ble……………………………………………………………...…….Honorable
v.……………………………………………………………………...…...versus
u/s……………………………………………………………………........under section
Ors…………………………………………………………………..……..Others
s…………………………………………………………………………....section
AIR……………………………………………………………………..…All India Reporter
Art. ………………………………………………………………………..Article
Cr.LJ……………………………………………………………………….Criminal Law Journal
SC…………………………………………………………………………..Supreme Court
SCC…………………………………………………………………………Supreme Court Cases

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 3

 INDEX OF AUTHORITIES

STATUTES

BOOKS REFERRED

WEBSITES REFERRED

 www.manupatra.com
 www.indiankanoon.org
 Advocatemmmohan.wordpress.com
 www.ijtr.nic.in
 www.casemine.com
 www.advocatekhoj.com
 www.legitquest.com
 Mynation.net
 www.shoneekapoor.com

ONLINE ARTICLES

LIST OF CASES

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 4

 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 32 of
the Constitution of India, 1950.
Article 32 in The Constitution Of India 1950
Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 5

 STATEMENT OF FACTS

The material case arises out of a Public Interest Litigation filed by Friends of LGBT and
Another against the State of Rangasthan and Union of India before the Supreme Court of
India.
1. Background
Anershi and Bherni, Final year LL.B. girl students of Mangala Law College, Rangasthan, on
August 2017, through social media declared that they are supporters of same sex marriage and for
past six months they are living as spouses. Though they faced with harassment on the part of
fellow students and certain other sections of the society, the NGO of LBGT activists known as
Friends of LBGT provided strong support to them.
On 3-10-2018, Anershi and Bherni submitted notice under Section 5 of the Special
Marriage Act before the Marriage Officer, Shakhipur North, for solemnization of
marriage between them. When the notice was published, one Fr. Samuel representing to
be the vicar of a Catholic church filed an objection stating that same sex marriage is not
permissible under the Special Marriage Act and it is against contemporary social
morality. He pointed out Section 4(c) of the Act in support of his contention. Fr. Samuel
submitted 7 reasons for supporting his contention that same sex marriage is against
contemporary social morality in this regard.
7 reasons stated by Fr. Samuel (summarized)
1) Separation of child from actual parent due to In Vitro Fertilization (IVF) or surrogacy
2) More children being raised apart from fathers. Absence of a father’s role
3) More children being raised apart from mothers. Absence of a mother’s role in helping
girl child cope with puberty
4) Conclusion of study by Judey Stacey (sociologist & advocate for same sex marriage)-
sons of lesbians are less masculine and that daughters of lesbians are more masculine.
5) Undercut the norm of sexual fidelity in marriage
6) Isolate marriage from its procreative purpose. Fuels population decline.
7) Social and cultural pressures to change our thinking and our behaviors in marriage.
Diminish gender typical roles.

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 6

 STATEMENT OF ISSUES

-I-

WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE ACCUSED

BY THE HC ON THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE ADDUCED BY
THE APPELLANT?

-II-

WHETHER THE PROSECUTION HAS PROVED THE ACCUSED GUILTY BEYOND

REASONABLE DOUBT?

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 7

 SUMMARY OF ARGUMENTS

I. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE

ACCUSED BY THE HC ON THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE
ADDUCED BY THE APPELLANT?
It is most humbly submitted before the Hon’ble Court that the acquittal order given by HC
in favor of accused is justifiable. As the circumstances of the case is not of conclusive
nature an chain of circumstances is not complete as to unerringly point to the guilt of the
accused.
In the present case, there is no willful conduct, which is of such nature as is likely to
drive the woman to cause grave injury or danger to life or health (whether mental or
physical). Mere commenting that deceased was not begetting children, does not amount to
subjecting cruelty. The present facts of the case therefore give no suggestion to the fact that
cruelty was meted out to the deceased, as the ingredients of s 498A are not satisfied in any
manner whatsoever. The accused can also not be held guilty of casuing destruction of
evidence as the ingredients of s. 201 are absent. One of the primary requirements of s 201
is proof of the actual commission of offence. Mere suspicion is not sufficient enough to
hold accused guilty under s 201. The circumstances are not of conclusive nature. Also in
the instantaneous case, chain of circumstances is not complete so as to unerringly point to
the guilt of the accused. There was no evidence that there was any sort of hostility between
them and the deceased, there was no direct evidence as to how the incident occurred and
the circumstantial evidence did not show the nature and extent of their participation. Hence
conviction should be set aside. Therefore, accused are not guilty of the offence u/s 498A,
201.

II. WHETHER THE PROSECUTION HAS PROVED THE ACCUSED GUILTY

BEYOND REASONABLE DOUBT
It is most humbly contended before this Hon’ble Court that the accused is not guilty for
committing the offence of murder under section 302. The respondent humbly contends that
both, the actus reus and the mens rea of the crime are not established in the instant matter by
the appellant and the same has been upheld by the HC.
It is contended that the onus probandi is on the prosecution, which shall fulfill the required
standard of ‘beyond reasonable doubt.’ However, the absence of essential ingredients that
constitute offences u/s 302 and 498A and the lack of evidence proving guilt of the accused
beyond reasonable doubt strengthen the claim of the accused of not being guilty.

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 8

 ARGUMENTS ADVANCED

I. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL OF THE

ACCUSED BY THE HC ON THE BASIS OF ORAL AND DOCUMENTARY EVIDENCE
ADDUCED BY THE APPELLANT?

It is most humbly submitted before the Hon’ble SC that the decision of the HC is justifiable. The HC
of Allahabad has set aside the order of Trial Court in which the court had convicted the accused. The
order of the HC is valid as firstly, the accused are not guilty for the offence of Cruelty under s.
498A [1], the accused have not caused disappearance of evidence u/s 201 [2], chain of evidence
has not been established [3].

1. THE ACCUSED ARE NOT GUILTY OF OFFENCE U/S SECTION 498 A OF IPC.
It is humbly submitted before this Honorable Court that the accused are not guilty for the offence
of cruelty. 1Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation. – For the purposes of this section, ‘cruelty’ means –
a) Any willful conduct which is of such a nature as is likely to drive the woman to cause grave
injury or danger to life, limb or health (whether mental or physical) of the woman.
b) Harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.2

In the present case, there is no any willful conduct which is of such nature as is likely to drive the
woman to cause grave injury or danger to life or health (whether mental or physical). And not
even a single witness could describe any incidence in which the deceased was subjected to
cruelty earlier.

For proving the offence under section 498A the following ingredients of this Section must be
fulfilled.

1. The women must be married

1
Vipin Jaiswal(A-I) vs State Of A.P. SC on 13 March, 2013
2
Sec. 498A, IPC, 1860
MEMORIAL ON BEHALF OF PETITIONERS PAGE | 9
 2. She must be subjected to cruelty or harassment and
3. Such cruelty or harassment must have been shown either by husband of the woman or by the
relative of her husband.3
In the instant case, only the first ingredient is satisfied. ‘Cruelty postulates such a treatment that
causes reasonable apprehension in the mind of the wife that her living in the matrimonial home
will be harmful and injurious to her life. 4

In fact, what amounts to cruelty is a question of fact. Matrimonial relationship between the
husband and wife, their cultural and temperamental state of life, state of health and their
interaction in daily life are relevant factors in determining ‘cruelty’
Mental cruelty varies from person to person depending on the intensity of sensitivity and the
degree of courage or endurance to withstand such mental cruelty5.
In any event the prosecution needs to prove that the willful act and the conduct of the husband of
a women or his relatives has been a proximate cause for cruelty. 6 When there is no intent on the
part of the husband or his relatives to injure her, a conduct, though willful and hurts her feelings,
does not amount to cruelty, does not amount to cruelty. 7

The usual and common discord in any matrimonial home cannot amount to ‘cruelty’ within the
meaning of s. 498A of IPC. 8
In State of Andhra Pradesh v. Kalidindi Sahadevedu,9 it was alleged that, as the deceased did
not beget child for a period of three year after the marriage, accused harassed the deceased by
calling her “barren woman”. It was held that mere commenting that deceased was not begetting
children, does not amount to subjecting cruelty within the meaning of section 498A of IPC.
Every cruelty or harassment doesn not attract the provisions of s 498A. Cruelty or
harassment (caused with a view to meeting dowry demand) to a married woman which only is
likely to drive her to commit suicide or to cause grave injury to life or limb or health, whether
mental or physical, comes within the ambit of s 498A, IPC10. Mere harassment or mere
demand for property etc. is not cruelty. It is only where the harassment is shown to have

3
Suvetha v. State, (2009) Cr. LJ 2974
4
Sarojakshan v State of Maharashtra (1995) Cr, LJ 340 (Bom)
5
Mohd. Hoshan v. Union of India (1994) Cr LJ 340 (Bom)
6
Girdhar Shankar Tawade v State of Maharashtra AIR 2002 SC 2078, (2002) 5 SCC 177 Cr LJ 3785 (ker).
7
Savitri Devi v Ramesh Chand (2003) Cr LJ 2759 (Del).
8
Rosamma Kurian v. State of Kerala, 2014 CrLJ 2666 (Ker).
9
2012 Cr.LJ 2302 (AP) Quoted in (Ratanlal & Dhirajlal, The Indian Penal Code, 34th Ed. Sec.498A)
10
Giridhar Shanlar Tawade v State of Maharashtra (2002) 5 SCC 177, AIR 2002 SC 2078
MEMORIAL ON BEHALF OF PETITIONERS PAGE | 10
 been caused for the purpose of coercing a woman to meet demands that it amounts to
cruelty, which has been made punishable under the section.

It is not every harassment or every type of cruelty that would attract s. 498A. The
complainant has to conclusively establish that the harassment in question was with a view
to force her to fulfill illegal demand of dowry
In Tapan Pal And Ors. vs State Of West Bengal, 11 In answer to a question put by the Court he
clarifies 'mental torture' by stating that she was pressed hard to part with her gold
ornaments and valuables for the purpose of marriage of her sister-in-law by the accused persons
but she refused to part with the same. This part of his testimony which appears to be an
embellishment not found within the four corners of the FIR is not acceptable. Even if the fact
being true, this would not amount to mental cruelty in as much as there was no harassment or
coercion. After refusal the accused persons did not proceed further.

There can never be any strait-jacket formula or fixed parameters for determining mental cruelty
in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to
evaluate it on its peculiar facts and circumstances while taking aforementioned factors in
consideration.
In Ramesh Chand vs State Of Himachal Pradesh Hon’ble Mr. Justice Sandeep Sharma opines
there can never be any strait-jacket formula or fixed parameters for determining mental cruelty in
matrimonial matters. The prudent and appropriate way to adjudicate the case would be to
evaluate it on its peculiar facts and circumstances while taking aforementioned factors in
consideration.
 Mere coldness or lack of affection cannot amount to cruelty
 The treatment complained of and the resultant danger or apprehension to die must be very
grave, substantial and weighty.
 The ill-conduct must be persistent for a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged
party finds it extremely difficult to live with the other party any longer, may amount to
mental cruelty.
 Mental cruelty - what is - held, in family life there can be differences, quarrels,
misgivings and apprehensions but it is the degree which could raise the same to the level
of mental cruelty - manner in which daughter-in-law should be treated. Mere bald

11
(1991) 2 CALLT 370 HC Quoted in (Ratanlal & Dhirajlal, The Indian Penal Code, 34th Ed. Sec.498A)
MEMORIAL ON BEHALF OF PETITIONERS PAGE | 11
 allegation regarding negative statements there is nothing specific which may indicate that
she was subjected to any sort of mental cruelty. 12

The present facts of the case therefore give no suggestion to the fact that cruelty was meted
out to the deceased, as the ingredients of s 498A are not satisfied in any manner whatsoever.
Also no overt acts were committed to drive the deceased to cause grave injury or danger to
her life, limb or health.

2. THE ACCUSED HAVE NOT CAUSED DISAPPEARANCE OF EVIDENCE U/S 201

Causing disappearance of evidence of offence, or giving false information to screen
offender. - Whoever, knowing or having reason to believe that an offence has been committed,
causes any evidence of the commission of that offence to disappear, with the intention of
screening the offender from legal punishment, or with that intention gives any information
respecting the offence which he knows or believes to be false;
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;
if punishable with imprisonment for life. —and if the offence is punishable with
[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished
with imprisonment of either description for a term which may extend to three years, and shall
also be liable to fine;
if punishable with less than ten years’ imprisonment.—and if the offence is punishable with
imprisonment for any term not extending to ten years, shall be punished with imprisonment of
the description provided for the offence, for a term which may extend to one-fourth part of the
longest term of the imprisonment provided for the offence, or with fine, or with both. 13

In the present case the ingredients of s. 201 are absent. One of the primary requirements of s 201
is proof of the actual commission of offence. Mere suspicion is not sufficient enough to hold
accused guilty under s 201. There must be some cogent evidence on record to suggest that the
accused has caused the evidence to disappear in order to screen another known or unknown. He
must have the knowledge that or reason to believe that an offence has been committed. 14

12
Budhiman Singh vs State Of U.P. on 20 April, 2018
13
Sec .201, IPC, 1860
14
VL Teresa v State of Kerala AIR 2001 SC 953, (2001) 3 SCC 549, Cr LJ 1171 (SC)
MEMORIAL ON BEHALF OF PETITIONERS PAGE | 12
 Mere knowledge that somebody had caused disappearance of evidence by disposing a body is
not an offence under s 20115.

3. THE CIRCUMSTANCES AND EVIDENCE ARE NOT OF CONCLUSIVE NATURE

It is most humbly submitted before this Hon’ble Court that the circumstances are not of
conclusive nature. Also in the instantaneous case, chain of circumstances is not complete so as to
unerringly point to the guilt of the accused.
It is a settled principle that in the case of circumstantial evidence, the various circumstances
should be able to form a chain pointing to the guilt of the accused. In cases where there is only
circumstantial evidence, the Court has to consider the evidence adduced by the prosecution and
decide whether the evidence proves particular facts relevant for the purpose of the case and when
such facts are proved the question arises whether the facts are capable of giving rise to any
inference of the guilt of the accused person or not. An inference of guilt can be drawn only if the
proved fact is wholly consistent with the guilt of the accused and certainly he is entitled to the
benefit of doubt if the proved fact is consistent with his innocence." 16
The circumstances should be of a conclusive nature and tendency, they should exclude every
possible hypothesis except the one to be proved, and there must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act must have been done by the
accused."17

In Bhupender Singh vs State Of Delhi on 13 July, 2018 it was opined

1) There must be a chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the accused.
2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if
it is of such character that it is wholly inconsistent with the innocence of the accused and is
consistent only with his guilt.
3) There should be no missing links but it is not that every one of the links must appear on the
surface of the evidence, since some of these links may only be inferred from the proven facts.

15
Raghav Prapanna Tripathy v State of Uttar Pradesh AIR 1963 SC 74, (1963), Cr LJ 70 (SC)
16
Sudama Pandey v State of Bihar (2002) 1 SCC 679
17
The State Of Maharashtra vs Sanjay Shesharao Suryawanshi on 22 December, 2014

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 13

 Vital link in the chain of circumstances in a case of this nature would be the motive for
commission of the crime. It must be recalled that the Appellant and all other accused have been
acquitted for the offences under Sections 498-A IPC. In other words, the case of the prosecution
that the deceased was being harassed by the Appellant for dowry or being subjected to cruelty
soon before the death of the deceased was not believed.
It should also be observed at this stage that the Appellant is not being found guilty of the offence
under Section 201 IPC, viz., the screening and destruction of the evidence. 

There was no evidence that there was any sort of hostility between them and the deceased, there
was no direct evidence as to how the incident occurred and the circumstantial evidence did not
show the nature and extent of their participation18

There is no evidence on record to establish that the appellant was party to any dowry demand or
to any ill-treatment meted out to Bindula Devi. Counsel submitted that in cases where apart from
husband other members of his family are charged with offences under Sections 304B, 302 and
498A of the IPC and the case rests on circumstantial evidence, unless the circumstantial evidence
is of required standard conviction cannot be based on it. In this connection he relied on Vithal
Tukaram More & Ors. v. State of Maharashtra. Counsel submitted that allegations about
motive are vague. Medical evidence is inconclusive. The prosecution has, therefore, failed to
establish its case. 19

II. WHETHER THE PROSECUTION HAS PROVED THE ACCUSED GUILTY

BEYOND REASONABLE DOUBT.

1. ACCUSED IS NOT GUILTY OF MURDER

It is most humbly contended before this Hon’ble Court that the accused is not guilty for
committing the offence of murder under section 302. The respondent humbly contends
that both, the actus reus and the mens rea of the crime are not established in the instant
matter by the appellant and the same has been upheld by the HC.
To prove the charge under section 300, actus reus [1.1] and mens rea [1.2] needs to be
established, which is a sine qua non of conviction. Therefore, it shall only be considered
as a false allegation against accused.

18
Jawahar Lai & ors v. State ofMadhya Pradesh, 2001 Cr. L.J. 2923 (SC
19
Joshinder Yadav vs State Of Bihar on 20 January, 2014

MEMORIAL ON BEHALF OF PETITIONERS PAGE | 14

 1.1 ACTUS REUS OF MURDER IS NOT ESTABLISHED

Actus reus is any wrongful act. In a case of murder, actus reus would be the physical
conduct of the accused that causes death of the victim. In the instant case actus reus is not
established by way of PMR Report, medical evidence and conduct of accused.

PMR REPORT
It is most humbly submitted before this Hon’ble Court that the PMR report is not
conclusive enough to show that accused had committed the crime.
20
The post mortem report does not suggest even remotely that the death of deceased was
homicidal. Deceased died because of compression of neck by ligature pressure. There is
no internal injury in the neck, which suggests strangulation by somebody else. The doctor
did not opine anywhere that these marks were struggle marks of the deceased or there was
anything to indicate that the deceased was murdered. There is no ocular or medical
evidence to support charge U/s 302 IPC. In absence of any prima facie evidence, charge
U/s 302 IPC cannot be framed merely on presumptions.
In the case of Jasvinder Saini, (Supra) it was held by Hon'ble Supreme Court that for a
charge U/s 302 IPC some direct or circumstantial evidence needs to be there.
The injury report or the post-mortem report given by a doctor is not substantive evidence
and is inadmissible in evidence unless he is examined.
The opinion of the doctor is not conclusive to hold that the deceased was actually
murdered. There is absolutely no opinion of the doctor in the PMR to show that the victim
was murdered. The doctor has simply stated that the cause of death seems to be asphyxia.
Learned counsel appearing on behalf of the appellant in this case contended that the
opinion of the doctor cannot be taken as conclusive proof in respect of homicidal death of
the victim. The edifice of the prosecution thus becomes doubtful and cannot be relied
upon. The PMR does not justify that the deceased was actually murdered. 21

IMPACT OF MEDICAL EVIDENCE

"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries
could have been caused in the manner alleged and nothing more.22

20
State vs . Sanjeev Etc. on 2 December, 2014
21
The state of WB v Lal Chand Mia @ Abdul Latif & Ors. on 10 February, 2017
22
Solanki Chimanbhai Ukabhai v. State of Gujarat, (AIR 1983 SC 484: 1983 Cr. L. 822)
MEMORIAL ON BEHALF OF PETITIONERS PAGE | 15
 The medical evidence is usually opinion evidence.23 The medical opinion by itself,
however, does not prove or disprove the prosecution case, it is merely of advisory
character.24
In Mayur v. State of Gujarat. AIR 1983 their Lordships of the Supreme Court observed:
"Even where a doctor has deposed in Court, his evidence has got to be appreciated like the
evidence of any other witness and there is no irrebuttable presumption that a doctor is
always a witness of truth "
In an another case Awadhesh v. State of M.P. AIR 1988 again their Lordships of the
Supreme Court observed: “Medical expert’s opinion is not always final and binding.”
The injury report or the post-mortem report given by a doctor is not substantive evidence
and is inadmissible in evidence unless he is examined.25
Where the medical officer who conducted the post-mortem examination is not examined
in court nor the post-mortem report is tendered in evidence, the same cannot be used as
substantive evidence.26
In the instant case there is no mention of how asphyxia was caused27. There is also
absence of fact as to whether the kitchen was closed from outside or inside.

CONDUCT28 OF ACCUSED
It is most humbly submitted before this Hon’ble court that the conduct of the accused
clearly shows that they had not committed the crime. The deceased was happily married
for 7 long years and lived with her in-laws. Deceased used to praise her husband to her
parents as he used to shower love upon her and surprise her with gifts.
It has been determined already that the present facts of the case therefore give no
suggestion to the fact that cruelty was meted out to the deceased, as the ingredients of s
498A are not satisfied in any manner whatsoever. Also no overt acts were committed to
drive the deceased to cause grave injury or danger to her life, limb or health.

23
Duraipandi Thevar v. State of Tamil Nadu, AIR 1973 SC 659: 1973 Cr. L.J. 602
24
(Stephen Seneviratne v. Kind, AIR 1936 P.C. 289 at p. 298. 299 : (1936) 37 Cr.L.J. 963 Anant Chintaman Lagu v. State of
Bombay, AIR 1960 C 500 at p. 523: 1960 Cr.L.J. 682)
25
J.T.R.I. JOURNAL – First Year, Issue – 3 - Year – July – September, 1995
26
Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal) (DB)
27
Chhotan Sao & Anr. V State of Bihar
28
Section 8, IEA, 1872
MEMORIAL ON BEHALF OF PETITIONERS PAGE | 16
 1.2 MENS REA OF MURDER IS NOT ESTABLISHED
In Indian penal law, mens rea is inbuilt in the statute29. Mens rea is considered as guilty
intention, which is proved or inferred from the acts of the accused. It is submitted that the
intention to kill is not established in light of clear-cut motive of the accused. The accused
had no intention to kill the victim and it is presumed that every sane person intends the
result that his action normally produces. In this case the intention can be ruled out from
the fact that cruelty could not be proved.

THERE EXISTS REASONABLE DOUBT

It is humbly submitted before this Hon’ble Court that the burden of proving the case
beyond reasonable doubt lies on the prosecution.30 “Whoever desires any court to give
judgment as to any legal right or liability dependent on the existence of facts which he
asserts, must prove that those fact exists.” When a person is bound to prove the existence
of any fact, it is said that the burden of proof lies on that person.
Another golden thread which runs through the web of the administration of justice in
criminal cases is that if two views are possible on the evidence adduced in the case one
pointing to the guilt of the accused and the other to his innocence, the view which is
favorable to the accused should be adopted.31And here in our case lack of evidence,
contradictory evidences and unreliable circumstantial evidences are enough to make a
common man judge it to be a reasonable doubt.
It has been very pertinently exhibited that their existed no case of cruelty u/s 498A and has
so been rightfully elaborated and explained by this counsel
The HC has rightfully reversed the trial court findings and acquitted them on the ground
that postmortem report cannot be the sole basis of conviction.
Appellant is falsely prosecuting the respondent. The judgment and order of conviction
passed by the HC was based upon proper appreciation of evidence, the circumstances
found established by court in the instant case have been unnecessarily doubted.

29
Ram Khelawan v. State of Madhya Pradesh, 2014 SCC Online Chh 29
30
Sec. 101 of IEA, 1872
31
Kali Ram v. State of Himachal Pradesh, MANU/SC/0121/1973 : AIR 1973 SC 2773
MEMORIAL ON BEHALF OF PETITIONERS PAGE | 17
 PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Hon’ble Court, that it may be
graciously pleased to adjudge and declare that –

1. The judgment of the HC is valid.

2. The accused must be acquitted from all the charges.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best
Interests of Justice, Fairness, Equity & Good Conscience.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

Sd/-

(Counsel for the accused)

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