SURANAANDSURANANATIONALTRIALADVOCACYMOOTCOURT

COMPETITION,2017

BEFORE THE COURT OF SESSIONS

AT COCHIN, KERALA

S.C.NO.586OF 2017

STATE OF KERALA

(PROSECUTION)

v.

Cpt. (Retd.).PRASANTH PILLAI

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION396READ WITH SECTION 302OF THE INDIAN PENAL CODE,1860

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

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TABLE OF CONTENTS

TABLE OF CONTENTS

Table of Contents ii

List of Abbreviations iii

Index of Authorities iv

Table of Cases iv

Books vi

Lexicons vii

Websites vii

Statutes vii

Statement of Jurisdiction viii

Statement of Facts ix

Statement of Charges x

Summary of Arguments xi

Arguments Advanced 1

Issue-I 1

Whether is guilty Cpt. (Retd.).PRASANTH PILLAI

of Dacoity? 1

Issue-II 7

Whether is guilty Cpt. (Retd.).PRASANTH PILLAI of Murder?

Prayer 16

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LIST OF ABBREVIATIONS

LISTOFABBREVIATIONS

AIR All India Reporter

All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defence Witness
Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
Mad Madras High Court
n. Foot Note no.
Ori Orissa High Court
p. Page No.
P&H Punjab and Haryana High Court
Pat Patna High Court
PW Prosecution Witness
Raj Rajasthan High Court
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v. Versus

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INDEX OF AUTHORITIES

INDEXOFAUTHORITIES

TABLE OF CASES:

1. Amar Malla v State of Tripura, AIR 2002 SC 3052

2. Ambalal v State of Rajasthan, 2003 Cr LJ 115

3. Asha v State of Rajasthan, AIR 1997 SC 2828

4. Badshah Singh v State, AIR 1958 All 677

5. Bakshish Singh v State of Punjab, AIR 1971 SC 2016

6. Bhanwar Singh v State of MP, (2008) 16 SCC 657

7. Bhupendrasingh A Chudasmav. State of Gujarat AIR 1997 SC 3790

8. Commissioner of Income Tax v PatranuDass Raja Ram Beri, AIR 1982 PH 1

9. Deonandan Mishra v State of Bihar (1955) 2 SCR 750

10. Gopal Naidu v. Emperor AIR 1923 Mad 523

11. Hari Singh v State of Rajasthan, AIR 1997 SC 1505

12. Harish Chandra Thange v State of Maharashtra, AIR 2007 SC 2957

13. Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630

14. Joginder Singh v State of HP, (1995) 1 Cr LJ 124

15. JugalGope v State of Bihar, AIR 1981 SC 612

16. Kalua v. State of UP, AIR 1958 SC 180

17. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883

18. Krishna Pillai v State of Kerala, AIR 1981 SC 1237

19. Laxmanv. State of Maharashtra, AIR 1974 SC 1803

20. Leela Ram v. State of Haryana AIR 1999 SC 3717

21. Madhusundan Das v Narayanbai, AIR 1983 SC 114

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22. Md. Badaruddinv. State of Assam, 1989 Cr LJ 1876 (Gau)

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INDEX OF AUTHORITIES

23. Md. Idrish v. State, 2004 Cr LJ 1724 (Raj)

24. MO Shamshudin v State of Kerala, (1995)3 SCC 351

25. Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175

26. Nath Singh v State of UP, 1980 SCC (Cr) 968

27. Niranjan Das and Ors. v. Giridhari Das and Anr., 68 (1989) CLT 746

28. Rahimal v. State of Uttar Pradesh,1992 Cri LJ 3819 (All)

29. Rameshwar v State of Rajasthan, AIR 1952 SC 54

30. RavindraShantaramSawantv. State of Maharashtra , AIR 2000 SC 2461

31. Sajjan Kumar v. State of MP, 1999Cri LJ 4561

32. Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

33. Shajahan v State of Kerala, (2007) 12 SCC 96

34. ShyamBehari v. State of Uttar Pradesh, AIR 1957 S.C 132

35. Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142

36. State of Gujarat v. PoladiRajak, R/CR.MA/9728/2012

37. State of Haryana v Mewa Singh, AIR 1997 SC 1407

38. State of Himachal Pradesh v. Lekh Raj and Anr., 1999 (9) ST 155

39. State of Kerala v Thomas, (1986) 2 SCC 411

40. State of Madhya Pradesh v.Digvijay Singh, 1981 Cri. LJ 1278 (SC)

41. State of Maharashtra v Meyer Hans George, AIR 1965 SC 722

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

43. State of Maharashtra v. BhairuSattuBerad, AIR 1956 Bom 609

44. State of Punjab v Sucha Singh, AIR 2003 SC 1471

45. State of Rajasthan v. Kalki and Anr., 1981 Cri LJ 1012

46. State of U.P. v. M.K. Anthony, 1985 Cri LJ 493

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INDEX OF AUTHORITIES

47. State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840

48. State v DinakarBandu (1969) 72 Bom LR 905

49. Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601

50. Tota Singh v State of Punjab, AIR 1987 SC 1083

51. UgarAhir v State of Bihar, AIR 1965 SC 277

BOOKS:

1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

2. Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal

Jurisprudence, (2nd Ed 1989)

3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5. Harris, Criminal Law, (22nd Ed. 2000)

6. Hill, McGraw,Criminal Investigation, (4th Ed. 2004)

7. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

8. I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

9. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

10. II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)

11. II, Princep’sCommentary on the Code of Criminal Procedure,1973 (18th ed. 2005)

12.III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)

13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003)

14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

15. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

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INDEX OF AUTHORITIES

16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)

17. Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010)

18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology,

(6th Ed. 2002)

19. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)

21. Sarkar, Law of Evidence, (13th Ed,1990)

22. Saxena& Gaur, Arms and Explosives, (10th Ed. 2012)

23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)

24. Tyagi, Surendra Prakash, Criminal Trial (2nded. 1996)

25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)

LEXICONS:

1.Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

WEBSITES:

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

4. http://www.scconline.com

STATUTES:

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

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INDEX OF AUTHORITIES

2. The Indian Evidence Act, 1872 (Act 18 of 1872)

3. The Indian Penal Code, 1860 (Act 45 of 1860)

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SURANA
STATEMENT OF JURISDICTION

STATEMENTOFJURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with

Section 209 of the Code of Criminal Procedure, 1973.

Section 177:

‘177.Ordinary place of inquiry and trial-

Every offence shall ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.’

Read with Section 209:

‘ 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 shall-

(a) 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 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.’

STATEMENT OF FACTS

STATEMENTOFFACTS
1. On the night of 1st January, 2017, the Donald Hotel & Casino owned by Mr.shankar

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Menon, on the ship ‘Queen’ located on the back water of Marina Drive , hosted a high stakes

poker game on the Santa floor. The chain of events that transpired that night are:

i. Post 11p.m. of that night, the Santa vault had been breached by four men dressed in

fine suits, though while making their exit the alarm got triggered.

ii. Subsequently the four men ran towards the deck to make an exit, and threw eight

waterproof bags overboard into a motorboat. Two of the men escaped by rappelling

into a motorboat, while the other two awaited their turn to rappel down.

iii. Just as the remaining two were about to make their escape, Mr. Jacob George

(Chief Security Officer) ordered them to stop.

iv. Thereafter Mr. George fired a warning shot in the air, however when they still did not

stop, he fired at one man’s knee and subdued him, they disobeyed the order and one

of them took a guest as hostage in order to escape; subsequently the accused,

Cpt.(Retd). Prasanth pillai (Head of Operations, Security) had shot dead the other

man.

v. The police reached the scene of crime at 12.15 am and Mr. Shankar menon registered

an F.I.R against the accused.

2. Praskash Raj, on 28th January, 2017 confessed to the crimes under Sec. 164 of the Code of

Criminal Procedure, and further provided incriminating evidence against the accused. The

final report of the police was made on the complicity of the accused on the 27 th February,

2017.

3. On 2nd June, 2017, an interim order was passed by the Sessions Court stating that the

charges under Sec.396/302 have been read out to the accused and that the charge sheet has

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been served. The accused pleaded not guilty and claimed trial. The matter is listed for final

hearing before the Session’s Court, Cochin on the 26th June 2017.

STATEMENT OF CHARGES

STATEMENTOFCHARGES

CHARGE 1
Cpt. (Retd.).PRASANTH PILLAI

has been charged under Section 396 read with Section 302 the Indian

Penal Code, 1860 for the crime of Dacoity with Murder.

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SUMMARY OF ARGUMENTS

SUMMARYOFARGUMENTS

ISSUE I

WHETHER Capt. (retd). Prasanth Pillai ACCUSED IS GUILTY OF DACOITY ?

It is humbly submitted before this Hon’ble Court that the accused, cpt (retd). Prasanth Pillai

( is guilty of committing dacoity as he had committed the crime with 5 other members with

full intent of robbing the Santa Vault of the 10 Crore Rupees that was being held in it on the

2nd of January 2017. The accused had access to all of the necessary instruments to carry out a

successful robbery as he was the Head of Operations (Security) aboard the Donald. And

while committing said crime the accused had committed murder, thus fulfilling all of the

elements of section 396 of the IPC.

ISSUE II

WHETHER THE ACCUSED IS GUILTY OF MURDER?

It is humbly submitted before this Hon’ble Court that the accused is guilty of murder as he

had committed an act of cold blooded murder on board the Donald with many witnesses to

the actus reus. The accused had the requisite mens rea to commit said crime, and he even had

a motive to carry out said act. The shot was fired point blank in the centre of the deceased’s

head, thus showing it was indeed an execution and not an act of self defence or an accident.

Hence it is proven beyond a reasonable doubt that the crime of Murder was indeed committed

by the accused in the case at hand.

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ARGUMENTS ADVANCED

ARGUMENTSADVANCED
ISSUE-I

WHETHER Cpt. pillai IS GUILTY OF DACOITY?

It is humbly contended that Cpt. Pillai (hereinafter referred to as the ‘accused’) is guilty of

unlawful offences under Sec. 396/302 of the Indian Penal Code, 1860 (hereinafter referred to

as ‘IPC’). It is to be noted that the essential elements of Sec. 396 are as follows:

• The dacoity must be the joint act of the persons concerned;

• Murder must have been committed in the course of the commission of the dacoity 1.

The pre-requisite of a dacoity will be dealt with in the present issue (Issue I), while

the charge of murder will be proved in the subsequent issue (Issue II).Dacoity2 is

robbery3 committed by five or more persons, with the abettors who are present and

aiding when the crime is committed, to be counted in the number. The ingredients of

dacoity are thus as follows:

• The accused committed or attempted to commit robbery[1.1]

• Persons committing or attempting to commit robbery and present and aiding must not

be less than five; and [1.2]

• All such persons should act conjointly4.[1.3]

Furthermore, the Prosecution humbly contends that the confessional statement of praskash

Raj is corroborated in all material aspects [1.4] notwithstanding any discrepancies in

witness statements and the confession [1.5].

1 Shyam Behari v. State of Uttar Pradesh, AIR 1957 S.C.; Rahimal v. State of Uttar Pradesh,1992 CriLJ 3819

(All)

2Sec 391, IPC

3Sec 390, IPC

4 State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012

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ARGUMENTS ADVANCED

1.1 THE ACCUSED COMMITTED OR ATTEMPTED TO COMMIT ROBBERY

Sec 118, The Indian Evidence Act, 1872(hereinafter referred to as ‘Evidence Act’) mandates

that all persons shall be competent witnesses, unless they are prevented from understanding

or answering the questions put to them by virtue of tender years, extreme old age, disease,

lunacy or any other cause of same kind. Given that none of the witnesses in the instant matter

fall within the exceptions enumerated under Sec 118, it is logical to conclude that all of them

are competent witnesses. Therefore, it is the duty of the Court to scrutinise the evidence

carefully and separate the grain from the chaff.5

The Prosecution concedes that prakash Raj (PW 2) is an interested witness i.e. a person who

wants to see the accused convicted because of his own animus or otherwise. 6 However, it is

well established that because a witness is an interested witness, his evidence cannot be totally

disregarded in toto.7 Eye-witnesses, being friends of the victim, cannot be discredited for that

reason alone.8

The confession of PW 2 makes it evident that the accused was an active participant in

planning the entire dacoity and also aided in their entrance in the Santa floor, by securing

relevant information9.This is further corroborated by statements from Shankar Menon10 (PW

5 Ugar Ahir v State of Bihar, AIR 1965 SC 277

6 Tota Singh v State of Punjab, AIR 1987 SC 1083

7 Madhusundan Das v Narayanbai, AIR 1983 SC 114, Krishna Pillai v State of Kerala, AIR 1981 SC 1237

8 Asha v State of Rajasthan, AIR 1997 SC 2828

9 Annexure 8, Case Details, P. 17

10 Annexure 7,Case Details, p. 14, para 1

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1) and Jacob George11 (DW 4) who state that the accused had the final call on who could be

admitted to the Santa floor of the Queen. Moreover, the accused was entrusted with

enforcing security within the Santa floor. 12Therefore, the accused was privy to the details of
13
the security arrangement security in place, which included the rotation of guards. It is also

to be noted that in the process of emptying the vault, the dacoits did not face any resistance

from the guards, who claimed that some ‘guests’ had lost their way. 14

A conviction is possible on circumstantial evidence if it forms a chain of evidence so

complete as not to leave any reasonable doubt for a conclusion consistent with the innocence

of the accused15 If a false answer is offered by the accused when his attention is drawn to the

circumstance , a false answer would act as the missing link in completing the chain of

evidence.16Therefore, it is submitted before this Hon’ble Court that the circumstantial

evidence makes it clear that the accused had hatched the plan and abetted the others in

commission of dacoity.

1.2PERSONS PRESENT AND AIDING MUST NOT BE LESS THAN FIVE

Excluding the accused, it is seen that there were four other participants to the crime on board

the Queen :

11 Ibid, para 2
12 Ibid, p. 15

13 Ibid, p.14

14Supra, n. 11, p. 15

15 Deonandan Mishra v State of Bihar (1955) 2 SCR 750; Harish Chandra Thange v State of Maharashtra,

AIR 2007 SC 2957

16State of Maharashtra v Suresh, 2000 (1) SCC 471

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ARGUMENTS ADVANCED

i.Security on the intercom stated that they saw four men in suits carrying large bags

running towards the deck17 ii.DW 4 saw four men in suits throwing bags from the

ship18

iii.Mohd. Shafi (DW2) s saw four men run onto the deck19 iv.Confessional statement

of PW2 states that four men were on board the Queen while commission of dacoity

and another participant Akbar khan, was waiting on a motorboat to assist in the

escape of the accused persons20

v.Facts made out state that a motor boat was waiting for the accused persons 21. From

the aforementioned statements, it is evident that there were four people onboard the ship

while committing dacoity and another participant was in a motorboat assisting in the retreat

of the accused persons. Hence, apart from the accused, there were five other participants to

the crime.

1.3ALL SUCH PERSONS SHOULD ACT CONJOINTLY

The word conjointly refers to united or concerted action of five or more persons participating

in the act of committing an offence22. From the aforementioned arguments, it is clearly

established that the accused aided the accused persons by giving them integral information

about the security layout and assisted them in entering the santa floor of the donald. The

entire chain of events from getting on board the ship, to the escape was a well planned and

17 Annexure 7, Case Details, p. 15

18 Ibid
19 Ibid, p. 16

20 Supra n. 9

21Case Details, P. 1

22 Niranjan Das and Ors. v. Giridhari Das and Anr., 68 (1989) CLT 746

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ARGUMENTS ADVANCED

concerted effort by the accused persons. Thus, it is humbly submitted before this Hon’ble

Court that the threshold of acting conjointly has been fulfilled.

1.4CORROBORATION OF CONFESSION

Being an accomplice i.e. a guilty partner or associate in a crime,23 the evidence of PW2 is

subject to the combined reading of Sec 114 and Sec 133, Evidence Act and requires some

independent corroboration in material particulars for acceptance.24 The corroboration need not

be direct evidence but is sufficient if it is merely circumstantial evidence, 25i.e. the entrance

into the donald [A], breaking into the vault [B], timing of commission [C] and the number of

people [D].

A.Entrance into Donald

i) Confession – The accused offered to secure entrance of all the accused persons.

ii) Witness statement–PW1 and DW4 indicate the accused made the final call on guest

list and was supposed to scrutinize the names on the list to ensure safety.

B.Breaking into the vault

i) Confession - The accused shared information as to when the post of the guards would

change so as to ensure undetected entry.

ii) Witness statement - Accused himself verifies that he was entrusted with security of

the entire ship, along with DW 4 who states that security arrangements of the santa floor was

exclusively managed by the accused.

C.Time of Commission

i) Confession- Post 11:30 p.m. the accused persons started commission of dacoity.

ii)Witness statement -F.I.R. filed by PW1 states that the firing started in between 11:30-

23 MO Shamshudin v State of Kerala, (1995)3 SCC 351

24State of Kerala v Thomas, (1986) 2 SCC 411

25 Rameshwar v State of Rajasthan, AIR 1952 SC 54

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ARGUMENTS ADVANCED

11:45p.m, corroborated by DW 2 statements about gunshots fired at around 12 o’clock.

D. Number of persons

As already established in issue 1.2, the confessional statement of PW 2 is verified with oral

testimony of other witnesses, with regard to the number of people perpetrating the offence.

Thus, the aforementioned chain of events stated in PW2’s confession is in consonance with

the oral testimony and clearly indicate the involvement of the accused.

1.5 DISCREPANCIES IN WITNESS STATEMENTS ARE IMMATERIAL

It is contended by the defence that there exist discrepancies, between the witness statements

and the confession, with respect to the time of commission of the crime. However, in the

instant case, none of the statements contradict each other with respect to the manner in which

the crime was carried out. Neither is there any inconsistency in the chain of events which

have been narrated by the witnesses. Furthermore, since the accused persons were in the

Aurora from 11p.m. to 12a.m. there can be no other alibi for them. Thus, it is an immaterial

discrepancy.

There is bound to be some discrepancy between the narrations of different witnesses due to

errors of observation, errors of memory due to lapse of time, mental disposition and the like. 26

27
Trivial discrepancies ought not to obliterate otherwise acceptable evidence of eyewitnesses

and are not fatal for the prosecution’s case28 as they do not go to the root of the prosecution

story and need not be given undue importance29.

26 State of Rajasthan v. Kalki and Anr., 1981 CriLJ 1012

27 Leela Ram v. State of Haryana AIR 1999 SC 3717 ; State of U.P. v. M.K. Anthony, 1985 CriLJ 493;
Appabhai v. State of Gujarat, 1988 CriLJ 848; Sajjan Kumar v. State of MP, 1999CriLJ 4561

28 State of Himachal Pradesh v. Lekh Raj and Anr., 1999 (9) ST 155

29 Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630

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ARGUMENTS ADVANCED

Therefore, the Prosecution humbly submits that the Trial Court would be justified in

convicting the accused if it is shown by the evidence on record that he had participated in the

dacoity.30

ISSUE-II

WHETHER CPT. Prasanth pillai IS GUILTY OF MURDER?

It is humbly contended that the accused is guilty for committing the offence of murder under

Sec 302, IPC. Sec 302 prescribes the punishment for committing murder. In order to bring a

successful conviction under this charge, however, it is pertinent to refer to Sec 300, IPC

which elucidates the essentials of murder.

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 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 person31. The Prosecution humbly contends that

both, the actusreus [2.1] and the mens rea [2.2] of the crime are established in the instant

matter, negating any claims of private defence [2.3].

2.1 ACTUS REUS OF MURDER IS PROVEN

Actus reus is any wrongful act32. Thus, 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, the actus reus is

established by way of witness statements [A], forensic report [B] and ballistic evidence [C].

A. Witness Statements

30Jugal Gope v State of Bihar, AIR 1981 SC 612

31Sec 300, IPC

32Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006)

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ARGUMENTS ADVANCED

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 be,33 it is humbly submitted

before this Hon’ble Court that the circumstantial evidence in the instant matter shows that

within all human probability, the act must have been done by the accused.34

On the night of 1st January, 2017, 4 well dressed men breached the high-stakes santa vault of

queen’s Donald hotel and casino, post 11 p.m. According to the confessional statement of

PW 2, at around 11.30-12.00 p.m., the accused shot Anand nair (hereinafter referred to as the

‘victim’/‘deceased’) in the head with his special edition Smith and Wesson custom engraved

model 60, .38 revolver35, reaffirmed by DW 2’s statement, who heard the gunshot, alongwith

DW 3’s oral testimony, who saw the accused standing over the body.

In a case where murder was caused by gunshot, the witnesses did not actually see the accused

shooting but saw him lowering the gun right after they heard the gun-shot, their evidence was

held to be as good as that of eye witnesses and conviction was upheld.36

B. Forensics

The post mortem report becomes important in cases where the cause of death is to be

established and is a matter of controversy. 37 Moreover, it is not possible for the Prosecution in

to explain each and every injury suffered by the witnesses. 38 However, for the sake of

33 State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840

34 Bakshish Singh v State of Punjab, AIR 1971 SC 2016

35Exhibit 1, Case Details, p. 2

36 Md. Badaruddin v. State of Assam, 1989 Cr LJ 1876 (Gau)

37 Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883

38 Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461

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convenience, the Prosecution feels obliged to assist this Hon’ble Court in understanding the

intricacies of the post mortem report.

i) Size of Wounds

The entry wound in this case is a 15 mm round-shaped one, while the exit wound is a highly

irregular starry shaped wound 33 mm in size. This difference in size and appearance is

because when a bullet makes an entry into the human body, it first indents and stretches into

the skin and subsequently, depending upon the energy, effects penetration into the soft tissues

and/or bones and comes out, causing an exit wound. After entry of the bullet, the skin

partially returns to its original position and therefore, the size of the entry wound may be

smaller than the size of the bullet.39

When a projectile transverses the skull and emerges, the aperture in the bone differs in

relation to the outer and inner tables; the defect is larger in the direction in which the bullet

travels.40 An entrance hole bevels inward and therefore, the entrance is usually clean cut and

the defect on the inner surface of the bone is larger than the outer surface. An exit hole on the

skull is bevelled outward and is larger on the outer than on the inner surface of the

bone,41consistent with the autopsy report in the instant matter, keeping in mind that the

gunshot wound perforated the frontalis of the deceased, causing instant death. 42ii) Appearance

of the Wounds

39Parikh,CK, Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, p. 4.42 (6th ed 1999)

40 Ibid, p. 4,43

41 Ibid, p. 4.50

42 Annexure 4, Case Details, p. 8

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The autopsy report by Dr johnson indicates the presence of a wide zone of powder soot and

seared blackened skin around the entrance wound.43 The blackening/smudging is due smoke

produced buy combustion of gun-powder, coupled with a small portion of carbonaceous

matter .Even ‘smokeless’ powder produces a small amount of smoke which may mark objects

at close range.44 Presence of blackening on wounds is thus consistent with firing from a very

close range.45

Scorching (or burning/charring) is the discolouration of skin resulting from burning of the

flame or hot gases that issue from a firearm. 46The presence of scorching/charring is a clear

indication that the fatal shots were fired at the deceased from a very close range.47

The Prosecution humbly contends that the autopsy report merely demarcates an upper limit of

the proximity of the firearm with the deceased, with a distance of not more than 15 ft 48

between the two. This should not, however in any manner, be construed to mean that the

weapon could not have been placed at a lesser distance.

The primary requirement of pleading the defence of accident is that the act must be done with

proper care and caution.49 Thus, at a ‘close range’ ,the chances of any ‘accident’ 50are ruled

out, given that the accused is a retired Army officer, who, by his own account, has a

43 ibid
44Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal Jurisprudence, p. 71 (2nd ed 1989)

45 Badshah Singh v State, AIR 1958 All 677

46 Supra n 36, p. 70

47 Nath Singh v State of UP, 1980 SCC (Cr) 968

48 Annexure 8, Case Details, p.13

49 Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790

50Sec 80, IPC

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considerable experience in handling weapons and killing men. In fact , such a short distance

would indicate the intention to kill.

C. Ballistics

As per the Forensic Report,51 and the Panchanama52 , 4 Hornady XTP .38 caliber bullets were

recovered from Aurora’s deck. The grooves on one bullet matched the Smith and Wesson

custom engraved model 60 .38 revolver, owned by the accused.

In cases where injuries are caused by fire arms, the opinion of the ballistic expert is of a

considerable importance53 and is sufficient to prove the guilt of the accused. 54 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.55

So far as the question of the 4thbullet is concerned, it is well know that in case of tandem

bullets, the first bullet fails to leave the barrel and is ejected by the subsequently fired bullet.

The bullets are thus ejected one after another,56 which is what occurred when DW 4 fired his

standard issue Glock .38 handgun57, considering that the .38 Live Hornady cartridges
58
recovered could have been used in the Glock as well.59

51 Annexure 6, Case Details, p. 12

52 Annexure 3, Case Details, p.7

53 Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601

54 Kalua v. State of UP, AIR 1958 SC 180

55Field, C.D., Expert Evidence: Medical and Non-Medical, 4th Ed (2007)

56 Supra, n. 41, p.4.42

57 Exhibit 2, Case Details, p. 2

58 Exhibit 3, Case Details, p.2

59 Annexure 6, Case Details, p. 12

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Therefore, contrary to the claims of the Defence, the presence of an extra bullet should not be

attributed to any investigational ‘lapse’ on part of the police. On the other hand, since 2

bullets were fired almost at once, DW 2’s testimony as to the ‘three shots’ also corroborates

with the Prosecution’s version of events.

Arguendo, any lapse on part of the investigation agency would not be fatal to the case. 60

Absence of blood at the spot where the eye-witness saw the accused attacking the deceased

and which was sufficiently explained did not create a doubt in the prosecution story. 61Slight

variation between ocular evidence and medical evidence would not be a ground for

dismissing the case.62

2.2 MENS REA OF MURDER IS ESTABLISHED

Mens rea is considered as guilty intention 63, which is proved or inferred from the acts of the

accused64. It is submitted that the intention to kill is established [A] in light of clear-cut

motive of the accused [B]. Arguendo, absence of motive would not be a sufficient ground to

dismiss the case [C].

A.The Accused had intention to kill

It is presumed that every sane person intends the result that his action normally produces and

if a person hits another on a vulnerable part of the body, and death occurs as a result, the

intention of the accused can be no other than to take the life of the victim and the offence

60 Amar Malla v State of Tripura, AIR 2002 SC 3052,State of UP v Jagdeo , AIR 2003 SC 660

61 Joginder Singh v State of HP, (1995) 1 Cr LJ 124

62 Ambalal v State of Rajasthan, 2003 Cr LJ 115; Sudhin Chandra Barman v. State of WB Cr LJ 2006 Cal 4656

63 Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4

64 State of Maharashtra v Meyer Hans George, AIR 1965 SC 722

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committed amounts to murder.65 Moreover, the intention to kill is not required in every case,

mere knowledge that natural and probable consequences of an act would be death will suffice

for a conviction under s. 302 of IPC. 66

The intention to kill can be inferred from the murder and nature of the injuries caused to the

victim.67Causing a serious injury on a vital part of the body of the deceased with a dangerous

weapon must necessarily lead to the inference that the accused intended to cause death or

bodily injury sufficient to cause death of the victim, and it answers to section 300 and is

murder.68Given that the accused shot the victim on the head, a vital part of the body, it is

logical to conclude that he intended to cause the death of the victim.

B.The Accused had motive to kill

Sec 8, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or

preparation for any fact in issue or relevant fact. Thus, previous threats or altercations

between parties are admitted to show motive.69 It is further pertinent to note that if there is

motive in doing an act, then the adequacy of that motive is not in all cases necessary. Heinous

offences have been committed for very slight motive.70

As already established in Issue I, the accused was an active participant, or rather, the

instigator of the dacoity committed on Aurora. PW 2’s confession clearly highlight’s the

accused’s need to silence the victim in order to hide his role in the entire operation and hence,

65(1951) 3 Pepsu LR 635

66 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

67 Laxman v. State of Maharashtra, AIR 1974 SC 1803

68 Md. Idrish v. State, 2004 Cr LJ 1724 (Raj); Md. Sharif And Anr. v. Rex, AIR 1950 All 380; Badri v. State of
U.P., AIR 19953 All 189; Dibia v. State of U.P., AIR 1953 All 373, State of Maharashtra v. Bhairu Sattu
Berad, AIR 1956 Bom 609

69 Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482

70 State v Dinakar Bandu (1969) 72 Bom LR 905

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he had the requisite motive to kill the victim.

C.Arguendo, Absence of motive is irrelevant

Assuming for the sake of argument that the accused had no motive, it is humbly contended

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 established71as the mere existence of motive is by itself,

not an incriminating circumstance and cannot take the place of a proof72.

Therefore, 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 law.73When 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, motive of the crime need not be proved,74 as in the current case.

2.3THE ACCUSED CANNOT AVAIL RIGHT OF PRIVATE DEFENCE

In the given context, the accused claims to avail the right of private defence as per Sec 96 to

105, IPC which may extend to causing death for the purpose of defending the body or

property of another person. However, one of the foremost principles to be kept in mind is that

there must be an imminent danger giving the signal to act in exercise of the right of private

defence75 i.e. the necessity must be a present necessity, whether real or apparent76 and thus,

71Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

72 State of Punjab v Sucha Singh, AIR 2003 SC 1471

73 Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175

74 State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)

75 Hari Singh v State of Rajasthan, AIR 1997 SC 1505

76 Bhanwar Singh v State of MP, (2008) 16 SCC 657

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private defence does not include the right to launch an offensive attack. 77 Furthermore, the

right of private defence is available only till the apprehension to the body78 or

property79exists.

From the statements of all the witnesses, it is evident that the deceased had not actively either

assisted PW 2 in taking a hostage, nor had he presented any immediate danger to any other

person on board. It is amply clear from the statements of DW 3 and DW 4 that the accused

shot the victim after DW 4 had already apprehended PW 2 i.e. any immediate danger to DW

3 as a hostage had already subsided.

Furthermore, instead of shooting him on the head, the accused could have fired a warning

shot, or at the very least, fired at some other part of the body, given that in exercising the

right to private defence, one of the most important caveats is that no more harm than is

necessary should be caused.80 It is thus apparent that the accused exceeded his right of private

defence and any defence of ‘necessity’81 also cannot be claimed by him as an act of necessity

must be done with a bona fide intent and without any unnecessary force or violence82.

Therefore, it is humbly submitted before this Hon’ble Court that the accused is guilty for the

offence of murder, given that the requisite mens rea and actusreus is established from the

facts of the case, beyond a reasonable doubt.

77 Shajahan v State of Kerala, (2007) 12 SCC 96

78Sec 102, IPC

79Sec 103 and 105, IPC

80 State of Haryana v Mewa Singh, AIR 1997 SC 1407

81Sec 81, IPC

82 Gopal Naidu v. Emperor AIR 1923 Mad 523

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PRAYER

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon‘ble Court be pleased to:

1. Convict for the offence of com Cpt. (Retd.).PRASANTH PILLAI

mitting dacoity with murder under Sections 396/302 of the Indian Penal Code, 1860.

2. Declare a sentence of rigorous imprisonment for a term which may extend to ten

years, and also be liable to fine under Section 396 of the Indian Penal Code, 1860.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: kerala S/d_____________

Date: June 20, 2017 PUBLIC PROSECUTOR

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