1

2ND KIIT MOCK TRIAL ADVOCACY COMPETITION, 2016

BEFORE THE COURT OF SESSIONS

AT DAMAN, MIDAS

S.C.NO.OF……………..

STATE OF MIDAS

(PROSECUTION)

V.

MANISH MALHOTRA

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTIONS186, 189, 441, 443, 444, 307OF THE INDIAN PENAL CODE,1860
AND SECTION 9OF THE PREVENTION OF CORRUPTION ACT, 1988

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

TABLE OF CONTENTS

MEMORANDUM FOR THE DEFENDANT

 2

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 5

STATEMENT OF 6
JURISDICTION

STATEMENT OF FACTS 7

STATEMENT OF CHARGES 8

SUMMARY OF 9
ARGUMENTS

ARGUMENTS ADVANCED 10

PRAYER 17

LIST OF ABBREVIATIONS

MEMORANDUM FOR THE DEFENDANT

 3

¶ Paragraph

& And

All India Reporter

AIR

Allahabad Weekly Cases

AWC

Allahabad
All.

Another
Anr.

Andhra Pradesh Law Journal

APLJ

Bombay
Bom.

Bombay Law Reporter

BOMLR
Calcutta
Cal

Company
Co.

Chapter
Cha.

Criminal Procedure Code

CrPC

Appeal
A./App.

Divorce and Matrimonial Cases

DMC

Delhi Law Times

DLT

Edition
Edn. / Ed.

Government
Govt.

MEMORANDUM FOR THE DEFENDANT

L.J. Law Journal

Limited
Ltd.

Mister
Mr.

Madras
Mad.
Madras Law Journal
MLJ

Madhya Pradesh
MP

Madhya Pradesh Law Journal

MPLJ

Number
No.

High Court
HC
Others
Ors.

Page
Pg.

Reference
Re.
Private
Pvt.

Supreme Court Cases

SCC

Supreme Court
SC

Signed
Sd/

Union Of India
UOI
Versus
V.

Volume
Vol.
INDEX OF AUTHORITIES

CASES REFERRED:

 Arjun Thakur v. State of Orissa, 1994 Cr LJ 3526

 CharuNayiah, (1877) 2 Cal 354
 DoodhnathPande v. State of UP, 1981 SC 911
 ManikBanduGawali v. State of Maharashtra, 1998 Cr LJ 2246 (BOM)
 Md. Sahabuddin v. SayedManowar, 1999 Cr LJ 349
 Phudki, AIR 1955 All 104
 Ram Ghulam Singh, (1925) 47 All 579
 Sagayam v. State of Karnataka. AIR 2000 SC 2161
 Sakharam v. State of MP, AIR 1992 SC 758
 State of Haryana v. Prabhu, AIR 1979 SC 1019
 State of Maharashtra v, Nar Singh, AIR 1984 SC 63
 Vulluppa v. Bheema Row, 1917 41 Mad 156 (FB)

BOOKS REFERRED
 INDIAN PENAL CODE, RATANLAL AND DHEERAJLAL
 CODE OF CRIMINAL PROCEDURE, RATANLAL AND DHEERAJ LAL
 LAW OF EVIDENCE, BATUKLAL’S
 ANTICORRUPTION LAWS IN INDIA, REDDI’S
 CRIMINAL TRIAL AND INVESTIGATION, BANNERJEE

STATUTES AND OTHER AUTHORITIES

 Code of criminal procedure
 Indian penal code
 Prevention of corruption act

JOURNALS REFERRED:-
 All India Reporters.
 Allahabad Weekly Cases.
 Bombay Law Reporter.
 Current Tamil Nadu Cases.
 Indian Law Reporter.
 Kerala Law Journal.
 Madhya Pradesh Law Journal.
  Madras Law Journal
 Supreme Court Cases.

DATABASE REFERRED
 http://www.manupatra.com
 http://www.westlaw.org
 STATEMENT OF JURISDICTION

The counsels representing the defendant have endorsed their pleadings before the Hon`ble
Family Court, New Delhi, under Section 209 1read with 195 (12) and 177 3of Code of
criminal procedure in which the Hon`ble Court has the jurisdiction. The present
memorandum sets forth the facts, contentions and arguments

1209. 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) 1 commit, after complying with the
provisions of section 207 or section 208, as the case may be, the case to the Court of
Session, and subject to the provisions of this Code relating to bail, remand the accused
to custody until such commitment has been made;]
(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any,
which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

2195. Prosecution for contempt of lawful authority of public servants, for offences
against public justice and for offences relating to documents given in evidence.(1) No
Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian
Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in
writing of the public servant concerned or of some other public servant to whom he is
administratively subordinate;

3177Ordinary place of inquiry and trialEvery offence shall ordinarily be inquired inland
tried by a Court within whose local jurisdiction it was committed.
 THE STATEMENT OF FACTS

The present case relates to the district of Daman in the State of Midas of Bharat. The DPO (Mr. Shubham
Singh) and the CMO made a deal in favour of M/S Health Tech whose director was Mr. Manish Malhotra. The
deal was in pursuance of the Center’s mission named Bhartian Rural Health Mission in which DPO and CMO
of different districts were empowered to invite offers for procurement of medicines, operation tool kits, and
other disease scanning devices. After certain adjustments were made and writ petitions decided by the Courts,
the government approved the products of the aforesaid firm. However, the procedure takes time and several
trials have to take place and only after that the purchasing order can be issued.

The chain of events that transpired that day are as follows:-

1. On 15.08.2014 Manish Malhotra with his colleague Hermit Tagore came to the office of Shubham Singh
and asked to issue the purchasing order. To which the DPO denied and demanded a bribe of Rs. 10 lac from
Manish Malhotra. He said he would waive the procedure and told him to bring the money in an empty
Mandiram sweet box.

2. They both argued for long but all was in vain. After this the said Manish Malhotra left the office in the
afternoon along with Hermit Tagore. From there he was accompanied by his friend,RakeshKirorimal. In the
afternoon they both watched the movie. After this both of them went to the bar and had beer.

3. The next day Manish Malhotra visited the DPO’s office in order to convince him one last time and without
any bribe. When Manish reached the office, the DPO offered him sweets in a Mandiram sweet box. Just when
he was about to eat, the raiding team arrived at place and seized everything. Meanwhile his hands were
drowned in some solution and further he was taken to the police station. He wasn’t intimidated about any of
the reasons of his arrest.

A conspiracy was created in order to frame in Manish Malhotra. On 17.04.2015 a charge-sheet was filed
against the accused Manish Malhotra. On 28.06.2015, the accused appeared before the Court and pleaded not
guilty.
 THE STATEMENT OF CHARGES

Mr. Manish Malhotra (Director of M/S Health Tech) has been charged under:

CHARGE 1:- S. 186 of the Indian Penal Code, 1860 for obstructing the public servant in discharge of public
functions.

CHARGE 2:- S. 189 of the Indian Penal Code, 1860 for threat to injury to a public servant.

CHARGE 3:- S. 441 read with S.447 of the Indian Penal Code, 1860 for criminal trespass.

CHARGE 4:- S. 443 read with S.453 of the Indian Penal Code, 1860 for lurking house-trespass

CHARGE 5:- S. 444 read with S.456 of the Indian Penal Code, 1860 for lurking house-trespass by night

CHARGE 6:- S. 307 of the Indian Penal Code, 1860 for attempt to murder.

CHARGE 7:- S. 12 of the Prevention of Corruption Act, 1988 for punishment of abetment offences
 SUMMARY OF ARGUMENTS

ISSUE I

Whether the accused is guilty of voluntarily obstructing and threatening to injure the public
servant in discharge of public functions?

It is humbly submitted before the Hon’ble court that Mr. Manish Malhotra is not guilty of the offence of
obstructing the public servant while in discharge of his public functions nor did he threaten him to cause
any injury. It is further contended that the accused was present at the alleged place of incidence but did
not perform any action- verbal or physical – so as to obstruct the public servant in discharge of his
public function. No threat of injury was inflicted upon the said complainant.

ISSUE II

Whether the criminal trespass coupled with S.443 and S.444 amounted to attempt to murder?

It is humbly submitted before the Hon’ble court that the accused is not guilty of the offence of criminal
trespass and lurking house trespass at night. In fact, the accused was present elsewhere at the time when
offence was committed. The defense of plea of alibi is applied, thus indicating that the accused is not
guilty of the offences. The evidences are full of infirmaries and inconsistencies which clearly fail to even
remotely indicate that the accused is guilty of these offences.The accused is not guilty of attempt to
murder as he was not present at the place of incidence. The basic necessities of the offence are also not
fulfilled which clearly indicate that the accused is not guilty.

ISSUE III

Whether the accused is guilty under S. 12 of the Prevention of Corruption Act, 1989?

It is humbly submitted before the Hon’ble court that Mr. Manish Malhotra is not guilty of taking any
gratification to invoke his personal influence on the public servant to impact his normal discourse of public
functions. The whole conspiracy is evident from the initial statements of the witnesses which completely raise
doubt on the procedure followed. Furthermore, the hostility of witnesses and contradicting testimonies are
more than enough to state that the accused has been framed in by the complainant in this case.
 ARGUMENTS ADVANCED

ISSUE 1

Whether the accused is guilty of voluntarily obstructing and threatening to injure the
public servant in discharge of public functions?

It is humbly submitted before the Hon’ble court that the accused is not guilty of the offences
under section 186 and 189 of the Indian Penal Code, 1860. The sections talk about the
obstructing a public servant while in discharge of his public functions and threatening a public
servant to cause an injury.

186. Obstructing public servant in discharge of public functions.—whoever voluntarily

obstructs any public servant in the discharge of his public functions, shall be punished with
imprisonment of either description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.

189. Threat of injury to public servant.—Whoever holds out any threat of injury to any
public servant, or to any person in whom he believes that public servant to be interested, for the
purpose of inducing that public servant to do any act, or to forbear or delay to do any act,
connected with the exercise of the public functions of such public servant, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.

The word obstruction connotes some overt act in the nature of violence or show of violence.4
Actual use of criminal force is not important; show of force or mere threat is sufficient. But in
the immediate case no threat was inflicted by the accused on the complainant. The act cannot be
said to be an obstruction if no physical means were used or no overt act was done.5 The threat to
injury can be directly towards the public servant or on the relatives.

4Phudki, AIR 1955 All 104

5 Ram Ghulam Singh, (1925) 47 All 579

1.1 The act was not done voluntarily
It is humbly submitted before the Hon’ble court that the act was not done voluntarily.
Relying on the chain of events and the facts, it is imperative that there was an exchange of
dialogue between the complainant and the accused. It is also valid to state that the
complainant too was indulged in an ardent argument with the accused
1.2 The obstruction did not amount to non-discharge of public function
It is humbly submitted that there was no overt act done in order to obstruct the public servant.
The discharge of public functions is a specific concept which includes certain functions or
duties while the public servant performs them. Herein, no specific public function was being
discharged as the events took place at the public servant’s office. Moreover, the obstructions
thus talked about are nowhere to be observed.
1.3 Whether the accused made any criminal intimidation to the public servant
It is humbly submitted that criminal intimidation is prescribed under Section 503 of the IPC,
wherein it is mandated that it requires certain ingredients namely threatening a person with
any injury and the threat must have intent. In the immediate case, no injury has been inflicted
upon the complainant, nor was any intention observed. There was a mutual exchange of
arguments and no threat was made at all.

The prosecution has to prove that the offender did this for the purpose of inducing that public
servant to do, or to forbear or delay to do, any act which was connected with such public
servant’s exercise of public functions. Empty threats given under heat of passion which are mere
shows of anger without any real intention need to be distinguished from this offence.

The Madras High Court is of the view that where a public servant has accepted a bribe to show
favor by doing some work, but fails to do the same, threats of violence to him for his non-
performance of the work promised, do not fall under this section.

The facts of the case clearly state that there was a heated exchange of arguments which in no
way threatened the complainant. Rather, the complainant demanded a bride from the accused, to
which he denied. This inspired the complainant to lay a false trap and frame the accused as an
offender.
 ISSUE 2

Whether the criminal trespass coupled with S.443 and S.444 amounted to attempt to murder?

It is humbly contended before this Hon’ble Court that Mr. Manish Malhotra (hereinafter to be referred to as
the ‘accused’) is not guilty of the offences under Sec. 441, 443 and 444 read with 447, of the Indian Penal
Code, 1860 (hereinafter referred to as the ‘IPC’). The accused did not trespass, even remotely, in the house of
the complainant. No shots were fired by him at the wife of the complainant and no threats were made out, thus
no attempt to murder took place.

2.1 Criminal trespass

441. Criminal trespass.—Whoever enters into or upon property in the possession of another with intent to
commit an offence or to intimidate, insult or annoy any person in possession of such property, or having
lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult
or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”

Criminal trespass requires a number of necessities:

1. Entry into or upon a property in the possession of another

2. If such entry is lawful, then lawfully remaining upon such property
3. Such entry or unlawful remaining must be with intent –
(a) To commit an offence; or
(b) To intimidate, insult, or annoy any person in possession of the property.

None of the above ingredients were complied with in the immediate case. Here property means immovable
corporeal property6 owned separately or in joint possession. It must be further necessary that the intent should
be commit a criminal offence with a requisite intention. The act of remaining over a property of another
would be a criminal trespass only if it is accompanies by a criminal intention. Where there is no evidence of
criminal trespass, no offence of house trespass is said to be committed. 7

6CharuNayiah, (1877) 2 Cal 354

7 Md. Sahabuddin v. SayedManowar, 1999 Cr LJ 349

Trespass is an offence only when there is an intent to annoy, intimidate or insult any other person who has a
right to exclude one from the property8. The word intimidate should be understood in its original sense - to put
fear or to overawe, by a show of force or threat of violence. The basic motive that matters is that the intention
should be there. Without intention, the person accused under this section is not guilty.

None of the above ingredients have been conformed, which clearly gives way to enormous doubts on the
presence of the accused. The criminal trespass leaves all doors open to infirmaries and inconsistencies, thus
clearly indicating that no trespass was committed.

443. Lurking house-trespass.—Whoever commits house-trespass having taken precautions to conceal such
house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or
vessel which is the subject of the trespass, is said to commit “lurking house-trespass”.

House trespass may be aggravated as being committed in a surreptitious or in a violent manner. Lurking house
trespass is an aggravation of criminal trespass. Lurking house-trespass committed at night is mentioned under
another provision.

444. Lurking house-trespass by night. — Whoever commits lurking house-trespass after sunset and before
sunrise, is said to commit “lurking house-trespass by night”.

2.2 Attempt to murder

307. Attempt to murder. — Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life],
or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—2[When any person
offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be
punished with death.]

The section deals with convicting those who attempt to murder but fail in complete execution by
circumstantial obstruction or by will of the author. To bring case under the ambit of Sec 307, one needs to
fulfill the ingredients of Sec. 300. If the ingredients of Sec 300 are not satisfied then, there cannot be any

8Vulluppa v. Bheema Row, 1917 41 Mad 156 (FB)

conviction under Sec. 3079 . For an attempt to be culpable, it needs to get all the elements. An attempt means
an intentional preparatory action which fails in its object through circumstances independent of the person
who seeks accomplishments10. An attempt in itself sufficient if there is requisite intention. An intention to
murder can be gathered from circumstances other than the existence or nature of the injury.11

2.3 Plea of Alibi

It is humbly submitted that the accused was not present at the place of occurrence at the time of commission
of offence. The plea of alibi states that it is a plea of absence of a person, charged with an offence, from the
place of occurrence at the time of the commission of the offence.

The immediate facts of the case clearly suggest that the accused was not at all, even remotely, in the proximity
of the place of occurrence of the alleged crime. The accused was with one other acquaintance. The statements
given under 161 of Cr. P.C. are inadmissible. They are corroborative and relevant during the trial. The essence
of proving the plea of alibi states that it makes the accused entitled to acquittal. It can be challenged by the
prosecution and is subjected to further scrutiny which only helps in enhancing the validity of the plea. In
Munshi Prasad and others v. State of Bihar12, presence of accused in 400-500 yards of place of occurrence
cannot be said to be present elsewhere. But in the immediate case, the accused was with one of his
acquaintance which is backed by evidential proof.

In order to establish the plea of alibi, the accused must lead evidence to show that he could not have
committed the offence.13 The plea of alibi is a supporting tool for the defense in order to prove the absence of
the accused from place of occurrence.14

9 Arjun Thakur v. State of Orissa, 1994 Cr LJ 3526

10Sagayam v. State of Karnataka. AIR 2000 SC 2161

11ManikBanduGawali v. State of Maharashtra, 1998 Cr LJ 2246 (BOM)

12 AIR 2001 SC 3031

13DoodhnathPande v. State of UP, 1981 SC 911

14 State of Maharashtra v, Nar Singh, AIR 1984 SC 63

It is noteworthy that the failure to prove the plea of alibi does not automatically convict the accused. The
burden to prove presence and actual commission lies on the prosecution.15

In Binay Kumar and others v. State of Bihar 16, the Supreme Court rightly held that it is basic law in criminal
case in which the accused is alleged to have inflicted physical injury to another person, the burden is on the
prosecution to prove that the accused was present at the scene and has participated in the crime.

The defense to attempt to murder is suicide and plea of alibi. Simply because these have failed, ti does not
inflict any adverse effect on the accused.17

ISSUE III

Whether the accused is guilty under S. 12 of the Prevention of Corruption Act, 1988?

12. Punishment for abetment of offences defined in section 7 or 11: Whoever abets any offence punishable
under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall
be punishable with imprisonment for a term which shall be not less than six months but which may extend to
five years and shall also be liable to fine.

Herein, the section 12 of prevention of corruption act 1988 clearly states that any abatement in offering a
bribe shall hold the accused convicted. In the case of N.P Prabhu v. Union of India18, it was held that a special
judge as an exclusive jurisdiction to try offences punishable under section 12 of the said act.

The section 12 of the said act has its foundation on three basic pillars- Instigation, engagement and aid. A
person who instigates is said to do so when he actively suggest or stimulates him to the act by any means of
language, express solicitation, insinuation or encouragement19. In the immediate case no instigation was
performed by the accused as the circumstances clearly reveal that the box of sweets was brought by the

15 State of Haryana v. Prabhu, AIR 1979 SC 1019

16 AIR 1997 SC 321

17Sakharam v. State of MP, AIR 1992 SC 758

18 2003 Cri LJ 2261

19Amiruddin, (1922) 24 Bom LR 534

complainant himself and no money was recovered earlier from the accused. Thus, the accused never instigated
by himself any bribe offer.

Furthermore, the accused is clearly devoid of any conspiracy against the complainant. The evidence is clearly
state that the accused was framed by the complainant for the charge of offering gratification. The third
element of intentionally aiding or facilitating the commission of the offence. The accused, in order to
convince the DPO went to the office the next day. Herein he was framed by the complainant under the charge
of offering bribe. In the landmark case of Sucha Singh v. State of Punjab20, the complainant was convicted for
conspiring a trap to convict the accused. The burden of proof of offering illegal gratification lies on the
appellant. Herein, the public servant i.e. the DPO conspired a trap to convict the accused of the crime of
offering a bribe. In the case of BrijBhushan Prasad v. State of Bihar21 it was held that the accused was alleged
to have demanded and accepted bribe for issuance of sickness certificate. Accused was caught red handed by
the raiding party. In this case it could not be proved beyond reasonable doubt that the accused offered in bribe
and hence, was acquitted.

It is contended that the accused was framed by virtue of a trap laid down by the police and the complainant. In
the case of Varada Rama Mohana Rao v. State of Andhra Pradesh 22 it was held that the presence of
phenolphthalein powder can be questioned even though the plea was rejected. In the immediate case it is
evident that the phenolphthalein powder used was not in the knowledge of the accused and the subsequent use
of solution is also highly suspicious. Furthermore, in the case of Dineshwar Prasad Srivastava v. State of
Jharkhand 23it was contended that the conviction of the accused can be proper only in the cases where the
evidences presented substantiate facts beyond reasonable doubt. In the present case, the accused was not
identified with any money what so ever in the initial stages. The question of money being transferred to
another box is far from logical thinking. The box which was presented by the DPO gave an immediate
impression that it was already filled with sweets, which clearly contradicts the demand of the accused-of an
empty box. Thus, the present trap was a falsified implication to frame the accused, who is innocent, as a
convict of bribing the public servant.

20 2007 Cri LJ 1912 (P & H)

21 2004 Cri LJ 1513 (Jhar)

22 AIR 2004 SC 3221

23 2006 Cri LJ (NOC) 153 (Jhar)

In the case of Mukhdeo Singh v.State of Bihar24it was held that the evidentiary value of the witnesses in a trap,
is relevant but no admissible. They cannot be completely discarded on merit basis but can be further
challenged during the proceedings. These witnesses are reliable.

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble Court be
pleased to:

1. Acquit Mr. Manish Malhotra under the offences of S. 186, 189, 441, 443, 444, 307 of the Indian Penal
Code, 1860 and S. 12 of the Prevention of Corruption Act, 1988.

AND/OR

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

24 2003 Cri LJ 626 (Jhar)

All of which is most humbly and respectfully submitted

Place: Midas S/d_____________

COUNSEL FOR THE DEFENCE