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TABLE OF CONTENTS

S. No. PARTICULARS Page No.

1. Table of Content
2. List of Acronyms
3. Index of Authorities
4. Statement of Jurisdiction
5. Statement of Facts
6. Issues Raised
7. Summary of Arguments
8. Arguments Advanced
9. Prayer

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LIST OF ACRONYMS

¶ Paragraph
@ Alias
A.I.R. All India Reporter
Anr. Another
Cr.L.J. Criminal Law Journal
Cr.P.C. Code of Criminal
Procedure
DB Division Bench
Ed. Edition
H.C. High Court
Hon'ble Honourable
i.e. Id est (that means)
I.L.R. Indian Law Reporter
I.P.C. The Indian Penal Code,
1860
L.J. Law Journal
No. Number
Ors. Others
S.C. Supreme Court
SCC SCC Supreme Court
Cases
SCR SCR Supreme Court
Reporter
Pb. Publication
pp. Pages
www. World Wide Web
Vol. Volume
v. Versus
Ss. Sub-Section
Sec. Section
u/s Under Section

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INDEX OF AUTHORITIES

List of Cases

 Jayaram and An r. v. State of AP, AIR 1995 SC 2128

 Ajab Narain Singh v. Emperor AIR 1939 Pat 575
 Anvar uddin v Shahkoor, 1996 Cri LJ 1270 (SC)
 Awdhesh & Ors v. State of MP AIR 1988 SC 1158
 Badal Sheik v. State 1986 (2) Crimes-316
 Bhobhoni Sahu v. King, AIR 1949 PC 257
 Chakru Sattiah v. State of AP AIR 1960 AP 153
 Chandra Mohan Tiwari v. State of MP AIR 1992 SC 891
 Dalbeer Kaur v. State of Punjab AIR 1977 SC 472
 Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102
 Emperor v. Jamunia Singh AIR 1945 Pat 150
 Haipal v. State, AIR 1998 SC 2787
 Hari Charan Kurmi and Anr v. State Of Bihar, AIR 1964 SC 1184
 Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184
 Jaffar v. State, 2013(2) JCC 1175
 Janar Lal Das v. State of Orissa, 1991 (3) SCC 27
 Kashmira Singh v. State Of Madhya Pradesh, AIR 1952 SC 159
 Lakshman Prasad v. State of Bihar, 1981 CrLR 478
 Lal Chand v. State of Haryana AIR 1984 SC 226
 Mahmood v. State of UP AIR 1976 SC 69
 Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
 Mohan Singh v. State of Punjab AIR 1965 Punj 291
 Mohd Remzani v State of Delhi AIR 1980 SC 1341
 Niranjan Das and Ors. v. Giridhari Das and Anr., 68(1989)CLT746
 R. Moganlal 14 ILR Bom 115
 Rai Singh Mohima v Stare AIR 1962 Guj 203
 Ram Autary State AIR 1954 All 771
 Ram Bilas Yadav v. State of Bihar AIR 2002 SC 530
 Ram Prasad Mahton v. Emperor AIR 1919 Pat 534
 Ramakant Rai v. Madan Rai Cr LJ 2004 Sc 36
 Shyam Behari v. State Of Uttar Pradesh, AIR 1956 SC 320
 Southwark Borough London Council v. Williams (1971) 2 All ER 175
 State of AP v Kowthalam Narasimhula, 2001 Cr LJ 722 (SC)
 State of Bihar v Hanuman Koeri, 1971 Cri LJ 182 (Pat)
 State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868
 State of Punjab v. Bhajan Singh AIR 1975 SC 258
 State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC)

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

STATUTES

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

2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code
1) The Code of Criminal Procedure, 1973
2) The Indian Evidence Act, 1872
3) The Indian Penal Code, 1860

Books

 Gaur, KD, Criminal Law Cases and Materials, (6" Ed. 2009)
 Gupte and Dighe, Criminal Manual, (7 Ed. 2007)
 Harris, Criminal Law, (22 Ed. 2000)
 Hill, McGraw. Criminal Investigation, (4" Ed. 2004)
 I, III, IV Nelson R. A. Indian Penal Code, 10" Ed. (2008)
 I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, (6° Ed. 2002)
 II, Mitra, B.B., Code of Criminal Procedure, 1973 (20 ed. 2006)
 II, Princep's Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)
 III, Sarvaria, SK, Indian Penal Code, (10 Ed. 2008)
 Kelkar, R.V. Criminal Procedure, (5ª Ed. 2011)
 Lal, Batuk, The Law of Evidence, (18" Ed. 2010)
 Ratanlal and Dhirajlal. The Indian Penal Code. 33 Ed. (2011)
 Ratanlal and Dhirajlal. The Law of Evidence, 22" Ed. (2006)
 Sarkar, Law of Evidence (13" Ed. 1990)

Legal Database

1) Case Mine
2) Manupatra
3) Hein Online
4) Indian Kanoon
5) www.Findlaw.com
6) www.Judis.nic.in
7) SCCOnline

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STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177read 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 oris 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, ifany, which
are to be produced in evidence;(d) notify the public prosecutor of the commitment of the case to
the court of session.‟ 

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STATEMENT OF FACTS

 BACKGROUND

Kulwant Kaur got married to the Raju on June 25, 2009. After the marriage Raju started
suspecting Kulwant Kaur's fidelity and when she gave birth to a male child, he told her that the
child is not of his fine age and is an illegitimate child. During the relevant time, Kulwant Kaur
and Raju were staying in a hut situated on the land belonging to Raju along with their child.

 HAPPENINGS

On 25/06/2014, when Kulwant Kaur was plucking the green gram fodder long with her son and
Raju was ploughing the other portion of the field, she saw the child going towards Raju. After
sometime, when Kulwant Kaur could not find her child she went near the hut. She only saw Raju
present in the hut and not the child she inquired the matter from Raju to which Raju replied that
the child was not with him. Alter two days the child was found dead in the well of the village.

 PROCEEDINGS

On 29/06/ 2014, when her close relatives come to console her, she mustered courage and told
them that last time she saw the child with Raju and suspected that Raju might have killed the
child. They immediately took her to the Police Station and lodged an FIR.

The matter is pending before the Trial Court.

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ISSUES RAISED

ISSUE I

WHETHER THE PRESENT CASE FALLS UNDER THE JURISDICTION OF TRIAL

COURT?

ISSUE II

WHETHER OR NOT THE ACCUSED i.e. RAJU IS LIABLE FOR KIDNAPPING u/s 364
OF THE IPC?

ISSUE III

WHETHER  THE  ACCUSED PERSONS ARE GUILTY OF CIMMITTING MURDER

UNDER SECTION 302

ISSUE IV

WHETHER  THE  ACCUSED PERSONS ARE  GUILTY BEYOND REASONABLE DOUBT

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SUMMARY OF PLEADINGS

ISSUE

WHETHER  THE  ACCUSED PERSONS ARE GUILTY OF CIMMITTING MURDER

UNDER SECTION 302

It is humbly submitted before this Honourable Court that the accused is guilty of offences under

Section 302 I.P.C. With regard to Sec 302, both, mensrea and actus reus are absent from this
case since both are primarily dependent upon the uncorroborated confession of Prosecution i.e.
Kulwant Kaur. Further, motive, an important aspect of circumstantial evidence, could not be
established. Moreover, the incomplete chain of causation and faulty investigation by the police
created a reasonable doubt over the actions of the accused. In addition to all the other causes,
there was no evidence to prove the act of kidnapping to make the accused guilty under Sec. 364.
Hence, the crime of murder and kidnapping to murder cannot stand against the accused.

ISSUE

WHETHER  THE  ACCUSED PERSONS ARE  GUILTY BEYOND REASONABLE

DOUBT

It is humbly submitted that the accused persons were not guilty beyond reasonable doubt as the

evidence that was relied upon, to prove the guilt, remains uncorroborated and weak and the
Prosecution failed to make the link between “may have committed the crime„ and “must have
committed the crime thus raising suspicion on the commission of the crime

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ARGUMENTS IN ADVANCED

ISSUE I.

WHETHER THE THREE ACCUSED PERSONS ARE GUILTY OFCOMMITTING

MURDER UNDER SECTION 302

It is humbly contended before this Hon’ble Court that the accused are not guilty of the offence
under Sec 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). In the matter
at hand, it has been wrongfully alleged that the accused has kidnapping the victim in order to
commit murder.

To establish an offence under the charge of kidnapping in order to commit murder , the
Prosecution must prove the following elements, beyond reasonable doubt 

 The accused kidnapped the child

 The accused had the intention at the time of kidnapping that the child kidnapped will be
murdered or so disposed of being murdered
Further, 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. In order to bring a successful
conviction under Section 302, IPC, 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 person.

In the present matter, the Prosecution’s case is liable to be dismissed because of heavy reliance
on uncorroborated confession and also due to faulty investigation, all creating the existence of a

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reasonable doubt. It is contended that both, the mens rea and the actus reus are absent from this
case since both are primarily dependent upon the confession of Kulwant Kaur. Moreover, the
witness statement of Kulwant kaur is inadmissible in evidence and cannot be relied upon [Issue
No. 1, sub issue 1-1.1] In such a situation, the accused should be given the benefit of doubt as the
whole case being based on circumstantial evidence [I.1] where, motive being a significant
element, could not be established [I.2]. Further, there was no evidence to establish the intention
to commit the murder [I.3].Moreover, the chain of causation with regard to Sec 364 as well as
Sec 302 is incomplete. [I.5] Lastly, due to faulty investigation by the police [I.6] there exists a
reasonable doubt over the actions of the accused.[6.1]

I.1 The entire case of the Prosecution is based on circumstantial evidence

It is contended before this Court that the Prosecution has solely based its case on circumstantial
evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts
and affords an instance as to its existence. In Hanumantv. State of Madhya Pradesh, The
Hon’ble Supreme Court observed,“ In dealing with circumstantial evidence there is always
the danger that suspicion may take the place of legal proof. It is well to remember that in cases
where the evidence is of a circumstantial nature the circumstances from which the conclusion of
guilt is to be drawn
should in the first instance , be fully established and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused. In other words there can 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 .”

It is submitted that in the present case, all the evidences that came before the Court were indirect
in nature. The statement given by the accused before the Police is a circumstantial evidence and
not direct evidence in the strict sense.

Further, in the last seen theory as mother seems that child is walking towards his father but
afterwards no one can see whether the child with his father or someone else in a case in which
the evidence is of a circumstantial nature, the facts and circumstances from which the conclusion
of guilt is said to be established beyond reasonable doubt and the facts and circumstances so

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established, should not only be consistent with the guilt of the accused but they must also be
entirely incompatible with the innocence of the accused and must exclude every reasonable
hypothesis consistent with his innocence.

Woolmington v. Director of Public Prosecution 1(1935). In this case, the instances that
occurred while he was last seen with the victim are exclusively known by him as this law is laid
down under Section 106 of the Indian Evidence Act where the burden of proving the fact is on
the person who has especially known about that particular fact or circumstance.

Though the last seen theory relieves the court from the burden of proving guilt yet it is weak
evidence and it needs to be corroborated with other factors like if there was motive with the
person who was last seen with the deceased or he could even administer the kind of injury that
caused death. In the case of Jaswant Gir v. State of Punjab2(2005), it was held by the Hon’ble
Supreme Court that if the other links are not present to corroborate the theory then it is not safe
to convict solely based on this theory. For instance, if an old lady who herself is not able to walk
properly was last seen with the deceased and deceased died due to several injuries sustained from
a knife. So, in this case, one cannot reasonably believe that the old lady committed murder thus
though it will be proved that she was last seen but considering her to be guilty will not be logical.
So thus the fact of last seen should also be supported by other factors in such a way that the
circumstances are unerringly determinate in nature and conclusively prove the guilt of the
person. The court needs to be on guard while deciding upon these kinds of matters because even
minute details can change the whole scenario of the case.

Gautam Kamalakar Pardeshi versus the State of Maharashtra in this case the last heary evidence
is there with regards to all the witnesses the conviction and sentence imposed upon the appellants
vide Judgment and Order dated 16th February, 2018 passed by the learned Additional Sessions
Judge, Vasai in Sessions Case No. 76 of 2014 is hereby quashed and set aside. The appellants are
acquitted of all the charges levelled against them

Case facts . “Unless there is proximity in the time of last seen and the time of death, the evidence
cannot be taken into consideration to convict the accused.”

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“Then under the pretext of giving food to the said person, Pravin, Gautam and Rahul led him to
pump house and started assaulting him. The accused then denuded the said person of his
clothes,”

“The prosecution has failed to establish that P.W. 8 and P.W.9 had seen the deceased in the
company of the accused. The only description is that he was a mentally ill person. But the
identity of the person as the deceased Talwalkar has not been established. The statement of P.W.
8 and P.W. 9 are recorded after the arrest of the accused. Therefore, again there is no material to
show that it was on the basis of their statement that the accused were arrested,”

 It is humbly submitted that the above mentioned principle has not been fulfilled.

I.2 Motive could not be established

It is humbly contended before the Court that although motive is generally not relevant in cases of
Murder, but where the case is based on circumstantial evidence, motive on part of the accused
assumes importance.

The current case being based on circumstantial evidence,motive becomes a relevant factor.
Further, with regard to the offence under Section 364, IPC, it was observed in the case of Narain
Mohaton v State that,

“..where there was not an iota of evidence as to any reason for the accused to do away with the
deceased, the accused cannot be pinned down to charge under Section 364, I.P.C ”

This principle was supported by the case of Kaptan v. State, where the conviction of the accused
was held to be not proper as the motive was not known and the Prosecution‟s case had
discrepancies. In such a situation where there is no motive, conviction on the basis of
circumstantial is imprudent and unjustified.  It is submitted that in the current case, the evidences
produced are not sufficient to connect the accused persons” motive with the alleged offence. The
argument of honour killing being the primary motive behind the murder does not hold water.

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This argument is wrong and bogus as the victim had been cohabitating with Kulwant kaur since

2009. Furthermore, the prosecution has also stated that the raju has started suspecting kulwant
kaur fidelity when she gave birth to male child and made the statement that the child is not a
legitimate child . This claim too does not hold water as the victim statement because Raju is
maintaining both his wife and son since 5 yrs and they are living in the hut which is totally
belongs to Raju. If the prosecution’s story is to be believed then it would seem that Raju was
not waited for almost 5 years to commit this crime, which seems highly unlikely and far-fetched
and also when the crime was happen both husband and wife were working together in their field
so by this we can’t say that any disputes was happening between them. Furthermore, Raju was
not having any motive to kill his own son.

I.3 There is no evidence to prove the intention to murder

It is contended that the Prosecution has failed to produce cohesive evidence to prove the accused
persons ‟intention to commit murder. There is an additional burden on
the prosecution to establish, in cases which rest on circumstantial evidence, that the
circumstantial evidence is inconsistent with the innocence of the accused besides it being
consistent with his guilt. True it is, in a murder case, the evidence that the deceased was last
found in the company of the accused is an important link in the chain of circumstances pointing
to the guilt of the accused, but it could not be deemed to be conclusive, unless it is further
established that during the interval between the time when they were last seen together and the
time at which the victim died every circumstance was inconsistent with the innocence of the
accused.

In the present case, the chain of events formed with the help of the evidences brought before the
Court had many loopholes which prevented the consistency of the same. The car that was alleged
to have been used for kidnapping could not be recovered. This was the first element of suspicion
raising a doubt on the intention of the accused. Further, there is no substantial evidence to prove
that the written resignation and the break up SMS was sent by Raju, thus, eliminating the
possibility of the required intention to remove him from the social circle. Hence, it is submitted

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that there is no material evidence to prove that the accused had the intention to commit the
offence of Murder.

In the case of Digamber Vaishnav & Anr. v. State of Chattisgarh (2019), it was held that
there should be reasonable proximity between the time of seeing the person and recovery of the
body to point the needle towards the person last seen with the deceased. And in this case, it was
upheld that only the fact that they were last seen together cannot be the sole criteria to convict
the accused. Last seen theory plus all other circumstances negating the innocence of the accused
should be established to convict the accused on the basis of the doctrine of last seen.

In some cases, though there was a huge time gap between the occurrence of the event and the
time when they were last seen together and the prosecution can establish the fact that no other
person could have interfered or intervened as there was an exclusive possession of the accused to
the place where the incident occurred, then based on this also the last seen theory can be
established and presumption can be taken despite a huge time gap as held in the case of Satpal
Singh v. the State of Haryana.

In the case of Krishna Mahadev Chavan v. State of Maharashtra (2021), it was held that even
if the last seen theory was established but when the entirety of circumstances was considered,
they portray suspicions then the judgment cannot be delivered solely on the basis of the last seen
theory. In this case, as a fact of homicidal death was unclear and uncertain, so the accused was
acquitted because guilt was not established beyond a reasonable doubt.

I.4 There is no evidence to prove kidnapping of the victim

With regard to the offence under Section 364, IPC, the Prosecution must prove the two
ingredients mentioned above.kidnapping under Section 362, IPC requires the accused to entice a
person by deceitful means or by forcible compulsion to go from one place.

In the present case, the prosecution failed to establish by adducing cogent and substantial
evidence to prove that the accused persons had played any force or inducement by deceitful
means, compelling child to leave from Field. According to the Kulwant Kaur child was moving
towards his father on the evening of 25th June 2014 and though reluctant, This statement, by itself

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does not prove any involvement of force or deceit to take her from field. Further, there is no
evidence in record to show that child was with Raju or that he was forced or compelled to go by
any deceitful inducement by the accused persons to go with them. As June is the harvesting time
with this we assumed that other villagers are also working in their field but the statement of
Kulwant Kaur reflects that no eye witness was there so how the prosecution said that Raju is
doing kidnapping of his own son. Therefore, it is humbly submitted that there was no legal
evidence to substantiate child kidnapping.

I.5. The chain of causation is incomplete with reference to offences under Section 364and Section 302 of
I.P.C.

It is contended that in case of circumstantial evidence, the onus lies upon the prosecution
to prove the complete chain of events  which shall undoubtedly point towards the guilt of the
accused.

It is a well settled principle that where the case is mainly based on circumstantial evidence, the
court must satisfy itself that various circumstances in the chain of evidence should be clearly
established and that the completed chain must be such so as to rule out a reasonable likelihood of
the innocence of the accused.

Moreover, all the circumstances should be complete and no gap should be left in the chain of
evidence.

When even a link breaks away, the chain of circumstances gets snapped and other circumstances
cannot in any manner establish the guilt of the accused beyond reasonable doubts.

 Further, with specific regard to Section 364, where there is no evidence to show that a person
was kidnapped for being murdered and the statement given by the witness does not inspire
confidence, the conviction of the accused under Section 364, IPC, cannot be sustained.

Similarly when the prosecution could not establish the link of circumstances leading to the
crime, the accused were acquitted of Section 302 of the I.P.C.

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Failurethe prosecution to prove even one of the elements mentioned gives the benefit of doubt to 
the Accused.

Further, it was clearly observed in the case of State of U.P. v. Gambhir Singh that since a
number of alternate inferences, consistent with the innocence of the accused, could be drawn,the
accused was not to be convicted, merely, on the basis of circumstantial evidence,adduced.

Similarly, in a case where the dead body was found in the well of the accused but the vital links
of circumstances were not established, the conviction was set aside.

It is submitted that the present case rests on circumstantial evidence and the circumstances that
were established are not conclusive in nature and the chain is broken from many places.There is
no corroborating and solid proof of the rented Opel Corsa, location of the prime accused, the
alleged abortion, the accused’s phone location for last week before or after the death of his son,
etc which are important material links in the chain of causation. These material facts should
have been investigated upon by the police as they form the base of the theory formed by the pros
ecution.

I.6.Faulty investigation

It is contended before this Court that improper handling of investigation leads to acquittal.

Apex Court has held that in cases where there are a number of infirmities in the evidence of the
eyewitnesses, the benefit of doubt is given to the accused. 

It is submitted that in the current case, the fact that the victim’s disappearance and the disposal of
the body along with the identification of the skeletal remains went unreported for 2 days until
June , 2014, shows that the case was improperly handled and there is a grave possibility that vital
evidences such as residue on victim‟s clothes, fingerprints or other material piece of information
may have been lost by the virtue of callous investigation techniques.Furthermore, investigative
authorities have failed to produce any piece of evidence which supports the claim of the alleged
abortion. The police have failed to produce any medical records which confirm the alleged

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abortion.Furthermore, the investigative authorities have failed to provide any evidence to support
Kulwant Kaur claim of renting of an Opel Corsa. This is a very valuable piece in the chain of
events proposed by the prosecution. Without confirmation of the same, an
essential material fact is absent from the story proposed by the prosecution.Furthermore, there is
again no evidence to prove the fact that Raju was present at the crime scene on 25th  june 2014.
Except for the uncorroborated statement given by Kulwant Kaur, which was later retracted, there
has been nothing to even suggest that Raju was present at the crime scene on that particular
night. The biggest blunder by the investigative authorities in this case was to not track down the
location of raju’s phone from which the real culprit was sending text messages to all of her
family and friends. Since the police failed in tracking the location of the phone, they have missed
out on a very valuable piece of evidence in the purported chain of events.

ISSUE II.

WHETHER  THE  ACCUSED PERSONS ARE  GUILTY BEYOND REASONABLE DOUBT

It is contended that the case against the three accused could not be proved beyond reasonable
doubt. It is contended that there exists a reasonable doubt and hence all the accused persons
should be acquitted of the crime.A reasonable doubt must not be imaginary, trivial or merely
possible doubt; but a fair doubt based upon reason and common sense arising out of the evidence
of the case.

In the present matter there has been no collaborating evidence to prove that Raju, were present
in the crime scene on the night of 25th june 2014. The only unreliable evidence that has been put
forward by the prosecution is the phone location of Raju and testimony of a hostile witness

The Prosecution‟s arguments are leaning towards the fact that the crime „may have been
committed by the accused persons‟, however, they have failed to make the link between „may
have committed the crime‟ and must have committed the crime‟ and that gap must be filled by
the Prosecution by legal, reliable and unimpeachable evidence before a conviction can be
sustained.

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Thus, it is humbly submitted before this Court that the charge under Section 364, I.P.C has not
been made out and the accused persons should be acquitted for the same.

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