THE 5TH KIIT UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2017

[I NDEX OF A UTHORITIES ] L

SHREE HASHUJI ADVANI MEMORIAL 3rd NATIONAL MOOT COURT & JUDGEMENT WRITING COMPETION
2020
TH TH
10 – 12 JANUARY 2020

BEFORE THE HON’BLE SUPREME COURT OF INDIVA

BOBBY RICHARD (APPELLANT)

V.

THE STATE OF MAHARAJYA (RESPONDENT)

MEMORIAL FOR THE APPELANT

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[MEMORIAL FOR APPELLANT]
 SHREE HASHUJI ADVANI MEMORIAL 3rd NATIONAL MOOT COURT & JUDGEMENT
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TABLE OF CONTENTS

INDEX OF AUTHORITIES
 CASES
 BOOKS
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
THE PRAYER

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INDEX OF AUTHORITIES

CASES

AIR 1978 SC 1210 at pp. 1211 - 12 9

Dharma Singh v. State AIR 1993 SC 319: 1993 Cr LJ 150 11

Bhagga v. State of M. P., AIR 2008 SC 175 12

Asha v. Rajasthan, AIR, 1997 SC, 2828: 1997 Cr. LJ 3508 12

Sidhartha Vashisht v. State (NCT) of Delhi, AIR 2010 SC 2352: 13

(2010) 6 SCC 1

BOOKS

Ratanlal and Dhirajlal, Lexis Nexis, The Code of Criminal Procedure as Amended by The
Criminal law (Amendment) Act 2013, 22nd edition 2017

Dr. Avtar Singh, Principles of Law of Evidence, 22nd edition 2016

Justice M. R. Malick, Criminal Manual (Major Acts): Code of Criminal Procedure 1973,
Indian Penal Code (45 out of 1860), Indian Evidence Act 1872, 2017

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Bare Act, The Protection of Civil Rights Act 1955, 2018

Bare Act, The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act 1970

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STATEMENT OF JURISDICTION

The Counsel for the Appellant humbly submits this memorandum for the appellant filed
before this Honourable Court. The petition invokes its appellate jurisdiction under Section 2
(1) (a) of Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and
under Section 379 of the Criminal Procedure Code against the final judgement and order
passed by the High Court of Tombay in criminal appeal whereby the High Court reversed the
order of acquittal passed by the trial court.

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STATEMENT OF FACTS

BACKGROUND

The facts of the case involve Bobby Richard and the state of Maharajya. Where in Rasa
district, a 16-year-old boy, Sachin Mane was murdered on 20th August 2008. Two eye
witnesses reported in police station were shown the police record of people matching the
description given by them. They confirmed Bobby Richard; accordingly, FIR was lodged. 1
week after FIR registration Bobby Richard was arrested and a murder weapon was recovered.
The eye witnesses stated that they did not see the shooter’s face clearly.

On the day of murder, he was in Doa with his friend john and his pregnant wife Jennie who
came forward as an alibi witness. Bobby gave detailed information of 14 alibi witnesses to
prove his statement with their addresses and phone number but the investigating officers
involved in the case due to the misunderstanding between them no verification was made. On
the basis of the past criminal record of robbery committed in 1998 when bobby was a
juvenile he was linked to murder.

TRIAL COURT’S RULING

The Trial Court ignored the credibility of the alibi witnesses inclusive of John and Jennie
because they were his bobby’s friends and convicted him and sentenced him for 20 years of
life imprisonment.

HIGH COURT’S RULING

The Tombay High Court ruled against bobby and held that the lawyers represented him very
skilfully and with integrity and the failure of the investigating officer to send investigator to
Doa was the result of misunderstanding.

APPEAL IN SUPREME COURT

The present appeal is made before the Hon’ble court of Indiva arguing that the judges failed
to read the report clearly which was produced 10 years ago, where the eye witnesses has
stated that they failed to see the shooter’s face.

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STATEMENT OF ISSUES

1. Whether the investigation against Bobby Richard was improper?

2. Whether Bobby Richard convincingly proved plea of alibi in lower court?
3. Whether recovery of weapon from the accused Bobby Richard can be the soul criteria
sufficient enough to convict him for murder?
4. Whether Bobby Richard is guilty of murder of Sachin Mane?

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SUMMARY OF ARGUMENTS

1. Whether the investigation against Bobby Richard was improper?

It is humbly submitted that yes, the investigation conducted against the Bobby Richard
was improper because the investigation officer did not instruct his subordinate to visit
Doa to carry out the investigation. The subordinate did not carry on the inquiry and
hence no report was filed. As a result, there was no verification or interview taken of
the witnesses in Doa.

2. Whether Bobby Richard convincingly proved plea of alibi in lower court?

It is contended that yes Bobby was able to prove his plea of alibi in the lower court
convincingly even so he was being linked with murder on the basis of the witnesses’
identification with no evidence, 7 alibi witnesses inclusive of John and his wife Jennie
who had Bobby staying at their house testified in support of Bobby’s allegation that he
was with them in Doa in their house on the day of the murder.

3. Whether recovery of weapon from the accused Bobby Richard can be the soul
criteria sufficient enough to convict him for murder?

It is humbly submitted that no, the recovery of weapon from the accused Bobby
Richard cannot be the soul criteria to convict him for murder as it is nowhere
mentioned that it actually belonged to him or has finger prints of him on it.
Furthermore, it is very improbable to say that the gun acquired from was the actual
murder weapon used to kill Sachin Mane as Bobby was in Doa on the day of murder.

4. Whether Bobby Richard is guilty of murder of Sachin Mane?

It is being humbly submitted that Bobby cannot be pleaded guilty of murder of Sachin
Mane because he is being accused of an alleged crime which does not have got

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anything to do with him because he was in Doa at the time of murder and it is
impossible to travel all over from Doa to Rasa also the eye witnesses has also not seen
the face of the shooter clearly.

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ARGUMENTS ADVANCED

1. WHETHER THE INVESTIGATION AGAINST BOBBY RICHARD WAS

IMPROPER?

It is humbly submitted before the Hon’ble bench that the investigation carried out by
the investigating officer against the accused Bobby Richard was clearly improper.
Investigating officer are basically the police officers, under section 10-A (1) of The
protection of civil rights Act, 1955 they are the appointed officers by the state
government whose rank is not below the rank of a sub- divisional Magistrate for the
purpose of making an inquiry.
Since the offence committed in this case is a cognizable offence which is defined
under section 2 (c) of code of criminal procedure as an offence for which, and
cognizable case means a case in which, a police officer may, in accordance with the
first schedule or under any other law for the time being in force, arrest without
warrant.
The cognizable offences are very heinous and serious in nature which also includes
murder in its ambit.
Though section 2 (c) of code gives power to the investigation officer to arrest if he/she
is satisfied that the offence has been committed by that particular person without a
warrant. But here in the facts of the case it is clearly mentioned in the statement given
by the eye witnesses that they failed to see the shooter’s face clearly that means there
is no eye witnesses confirming his identity. In AIR 1978 SC 1210 at pp. 1211-12,
where the incident did not seem to have lasted for a long time and the eye witnesses
sitting outside the hall did not have sufficient opportunity to see faces of the accused
who were on the run, it was held that the failure to hold identification parade on such
facts was a serious drawback in the prosecution case. Hence it is wrong at the first
place to arrest Bobby Richard.
if the inquiry officer is doing the investigation, then under section 10-A (4) of The
protection of civil rights Act, 1955 while such inquiry, shall follow, as nearly as
practicable, the procedure for summary trials including the recording of evidence as
laid down in chapter XXI of code of criminal procedure 1973.

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And under section 10-A (5) of The protection of civil rights act, 1955, the inquiry
officer shall complete the inquiry as expeditiously as possible and submit his report to
the state government within such period, not exceeding six weeks, as may be specified
by the state government in the order appointing the inquiry officer.
The investigation officer instructed his subordinate to visit Doa to carry out the
investigation but further the subordinate did not carry on the enquiry and no report was
filed. Later when the Investigating officer was transferred and the present case was
handed over to the succeeding Investigating officer, it was his duty to follow up with
the enquiry at Doa. But because of the miscommunication, irresponsibleness and
negligence on the part of the earlier investigating officer, no investigator was sent to
verify and interview the witnesses in Doa. No inquiry was carried out hence no
verification was made.
Since the police is the one who is claiming that the murder happened hence they are
the one on whom the burden of proof lies under section 103 of Indian Evidence Act,
1872 where it says that the burden of proof as to any particular fact lies on that person
who wishes the court to believe in its existence, unless it is provided by any law that
the proof of that fact all lie on any particular person.
They were unable to prove that Bobby was the one who killed Sachin Mane and the
evidences provided as proof by the police are not admissible since they are not
confirmed, the recovered weapon’s identification was not done.
They even failed to prove the presence of intent and motive of accused for committing
the crime under section 300 of Indian Penal Code, 1860 were it states that except in
the cases hereinafter expected, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death. Also as per the maxim
actus non facit reum nisi mens sit rea it is the first and foremost principle of natural
justice that speaks that nobody should be held liable unless he had the evil intent to
commit it, and the second principle of natural justice says that the accused should be
presumed to be innocent unless he was proved to be guilty.
Here they accused Bobby Richard of murder based on his past criminal record wherein
he committed robbery in 1998 when he was a juvenile, but under section 54 of Indian
Evidence Act, 1872 it states that previous bad character not relevant, except in reply to
the accused who has adduced evidence to show his good character, otherwise the

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general principle is that evidence of bad character of the accused is not relevant and no
adverse inferences should be drawn out of it against Bobby Richard.

2. WHETHER BOBBY RICHARD CONVINCINGLY PROVED THE PLEA OF

ALIBI IN LOWER COURT?

It is humbly submitted before the learned bench that the accused Bobby Richard was
convincingly able to prove the plea of alibi in the lower court though the learned trial
court judges did not take the proof into consideration.
Bobby was able to take plea of alibi under section 11 of Indian Evidence Act, 1872
Wherein facts which is otherwise not relevant becomes relevant,
i) If they are inconsistent with the facts in issue or relevant facts;
ii) If by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.
Here the question is whether bobby has committed the offence of murder or not but
here the fact that bobby was present in Doa on the day of murder makes it highly
improbable that he committed it and is relevant because it is very much inconsistent
with the fact in issue. When on facts the plea is upheld, the court is justified in taking
the view that the accused had been falsely implicated- Dharma Singh v. State AIR
1993 SC 319: 1993 Cr LJ 150.
To prove the fact that he was in Doa at his friend john and his pregnant wife’s house.
John and Jennie came forward as an alibi witnesses to testify that he was with them in
Doa on the day of murder. In addition to that Bobby had provided detailed statement
inclusive of all the names, addresses, and phone numbers of 14 people who are the
alibi witnesses who had confirmed his statement.
Although in the trial court they ignored john and Jennie’s witness because they were
Bobby’s friend, the counsel would like to request the Hon’ble bench to take these
witnesses in to consideration as just because they are Bobby’s friend their credibility
can’t be decreased. Relationship is not a factor in itself to affect the credibility of a
witness in Bhagga v. state of M.P., AIR 2008 SC 175, where the eye witnesses
belonged to the one family in murder case, they were on the spot of the incident, no
ground to disbelieve their evidence.

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In another case, Asha v. Rajasthan, AIR, 1997 SC, 2828: 1997 Cr. LJ 3508, here the
witnesses were close friend of the victim nothing elicited against them, their testimony
was not rejected.
About the evidence of relation Supreme Court has this say that,
Being near relations and living practically in the same house, these witnesses
constitute to be a natural witnesses.
Similarly, at the time of murder, whether bobby was there in Doa in John’s house or
not would obviously will be testified only by john and Jennie we could expect only the
people present there nearby him or those who were present at the time of delivery of
bobby’s friend’s wife to testify bobby’s statement. It is quite obvious that the people
around him will definitely know him, their testimony can’t be rejected just on the
ground that they know each other.
Further it is contended in the fact sheet that there was no investigator sent in doa to
verify or take the interview of the witnesses in Doa, which means because of the
negligence, miscommunication, and irresponsibleness of the investigating officers they
did not do the verification of witnesses and hence under section 157 of Code of
Criminal Procedure delay in the examination of witnesses can’t be held as a ground to
throw away the testimony of the witnesses (Sidhartha Vashisht v. state (NCT) of
Delhi, AIR 2010 SC 2352: (2010) 6 SCC 1).
And the oral evidence provided by Bobby Richard under section 59 of the Indian
Evidence Act 1872 is admissible and relevant and it is also direct under section 60 of
Indian Evidence Act 1872, which says that oral evidence must be direct if it refers to a
fact which could be seen, it must be the evidence of a witness who says he saw it.

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3. WHETHER RECOVERY OF WEAPON FROM THE ACCUSED BOBBY

RICHARD CAN BE THE SOUL CRITERIA SUFFICIENT ENOUGH TO
CONVICT HIM FOR MURDER?

The recovery of a weapon from the accused bobby Richard cannot be the soul criteria
sufficient to convict him for murder.
Under section 27 of Indian Evidence Act 1872, it specifies how much of information
received from accused may be proved- it says provided that, when any fact is deposed
to as discovered in consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby discovered, may
be proved.
Here in this case the weapon was recovered after 1 week when he was arrested after
registering the FIR. There was no process followed for the identification of the
weapon. There is no forensic report available for the same and it has not been
recovered from the place where the crime happened, Hence it is very improbable to
say that it was the ultimate murder weapon used to kill Sachin Mane just because it
was recovered from accused The weapon not necessarily has to be the murder weapon
it could belong to him or to his friend. And most importantly he was in Doa on the day
of murder hence there is no such proof that the recovered weapon is the one used for
murdering Sachin Mane. There was no reliability factor available with the police
officer. Similar thing happened in the case namely,
Bharat v. state of MP, AIR 2009 SC 2797 where there was recovery of ornaments
from the house of the accused which were supposed to belong to the deceased. They
were not of any particular design and were available in the market. Almost every
family of the village had similar ornaments. They could not, therefore, be properly
identified as belonging to the deceased. Signatures of recovery witnesses were taken
on dotted lines as the recovery memo and the thumb impressions of the accused was
also similarly managed. The court, therefore, said that no reliance could be placed
upon the testimony of the police officer as to the fact of recovery.

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4. WHETHER BOBBY RICHARD IS GUILTY OF MURDER OF SACHIN

MANE?

It is humbly submitted before the Hon’ble bench that bobby is not guilty of murder of
the 16-year-old boy Sachin Mane. He is being wrongly accused of the murder of
Sachin Mane.
Because on the first place, on the day of murder he was not in the state of maharajya,
he was in Doa, the distance between these two places cannot be covered in addition to
that his presence is also quite convincingly testified by 14 alibi witnesses under the
plea of alibi taken by Bobby Richard.
Secondly, he is being seen as habitual offender just on the basis of his past criminal
record of robbery in 1998 when he was a juvenile he is being accused of murder.
Under section 54 of Indian Evidence Act, 1872 the emphasis of the section is that the
prosecution cannot lead evidence of the bad character of the accused as part of its
original case when the accused himself has not adduced evidence to show his good
character. Hence no adverse effect should be drawn out of it against Bobby Richard.
Thirdly, under the principle of Natural Justice: actus non facit reum nisi mens sit rea
and under section 300 of Indian Penal Code 1860, the intent and motive are the most
essential requirement to hold someone liable of a cognizable offence and in this
particular case both elements are absent hence Bobby Richard have not committed the
murder.
Fourthly, there were no eye witnesses available confirming his identity and the gun
recovered by the police from Bobby was also not relevant to the fact in issue because
under section 27 of Indian Evidence Act, 1872 the identification of the recovered
weapon is necessary otherwise the recovered weapon cannot be relied upon. There was
no forensic report available, its identity was not fully established hence much
importance cannot be given to recovery of weapon from the accused.
Fifthly, here the person who claims that the murder happened is the police hence the
burden of proof lies on them under section 103 of Indian Evidence Act, 1872, but the
evidences presented by them are not confirmed and can’t be relied upon.

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The not confirmed evidences they gave are:

First the Eye witnesses who had stated that they have not clearly seen the face of the
shooter.
Second the murder weapon, with no identification report of the weapon, just because it
was recovered from Bobby he is being linked to murder.
Fifthly, there was miscommunication between the two investigating officers and they
were negligent and irresponsive in carrying out the investigation in the present Case
hence there was no verification made.

PRAYER

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In light of the issues raised, arguments advanced and authorities cited, the Counsel for the
Appellant humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. That, investigation officers be fined.

2. That, Bobby Richard should be released of this wrong charge placed on him

3. That, Bobby Richard be compensated by 10,00,000/- including the court fee and the
advocate fee that he had to face because of the wrong accusation.
AND/OR

Pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience.
And for this act of kindness, the counsel for the Appellant shall duty bound forever pray.

Sd/-

(Counsel for Appellant)

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