MEMORIAL on behalf of the RESPONDENT [TABLE OF CONTENTS]

T EAM CODE: 18

12TH CHECKMATE- NATIONAL MOOT COURT COMPETITION, 2022

IN HIGH COURT OF PUNJAB AND HARYANA

HARRY RASTOGI (APPELLANT)

v.

STATE OF PUNJAB (RESPONDENT)

APPEAL AGAINST THE DECISION OF THE TRIAL COURT

MEMORIAL ON BEHALF OF THE RESPONDENT

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MEMORIAL on behalf of the RESPONDENT [TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF AUTHORITES.....................................................................................................IV

STATEMENT OF JURISDICTION......................................................................................VII

STATEMENT OF FACTS...................................................................................................VIII

QUESTIONS OF LAW............................................................................................................X

SUMMARY OF ARGUMENTS.............................................................................................XI

ARGUMENTS ADVANCED...................................................................................................1

[I]. IS THE CONVICTION OF HARRY UNDER SECTION 302 OF THE IPC READ
WITH SECTION 34 VALID?...............................................................................................1

A. THE PRESENCE OF CIRCUMSTANTIAL EVIDENCE THAT TIES THE

APPELLANT TO THE MURDER....................................................................................1

1. THE CIRCUMSTANTIAL EVIDENCE PROVIDED BY THE

RESPONDENT ARE FIRM AND COGENT...............................................................1

2. CUMULATIVE RESULT OF THE CIRCUMSTANCES POINT TOWARDS

THE GUILT OF THE APPELLANT............................................................................2

3. THE APPELLANT HAS FAILED TO PROVE HIS SPECIAL KNOWLEDGE

IN THE CASE................................................................................................................3

B. THE PRESENCE OF CIRCUMSTANCES THAT POINT TOWARDS THE

COMMON INTENTION BETWEEN THE PARTIES.....................................................3

1. THE COMMON INTENTION HAS REGARD TO THE SUMMATION OF

THE SERIES OF ACTS THAT POINT TOWARDS THE OFFENCE........................4

2. THE PARTICIPATION OF THE APPELLANT NEED NOT BE THROUGH

AN OVERT ACT...........................................................................................................4

[II]. IS THE APPELLANT ENTITLED TO RECEIVE THE BENEFITS OF SECTION

84 OF THE IPC?....................................................................................................................5

A. THE BURDEN OF PROOF OF PROVING INSANITY IS ON THE

APPELLANT AND NOT THE RESPONDENT..............................................................5

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B. LACK OF COGENT EVIDENCE TO PROVE THE MEDICAL INSANITY OF

THE APPELLANT............................................................................................................6

C. LACK OF EVIDENCE THAT PROVES THE LEGAL INSANITY OF THE

APPELLANT AT THE TIME OF THE COMMISSION OF THE ACT..........................6

1. THE APPELLANT HAS FAILED TO PROVE THE DEFECT OF REASON

ARISING FROM HIS MENTAL ILLNESS.................................................................7

2. THE SUBSEQUENT CONDUCT OF THE APPELLANT WARRANT FOR

HIS LEGAL SANITY....................................................................................................7

[III]. IS THERE A VIOLATION OF JUSTICE AND FAIRPLAY IN THE MANNER

WHICH THE CONVICTION WAS GIVEN BY THE TRIAL COURT?............................8

A. DUE PROCEDURE HAS BEEN FOLLOWED IN THE INVESTIGATION.......8

1. THE ONUS OF PROVING INSANITY IS ON THE APPELLANT.................9

2. EVEN IF THERE IS ANY GAP IN THE INVESTIGATION, IT DOES NOT

GO TO THE ROOT OF THE INVESTIGATION........................................................9

B. THE TRIAL PROCEDURE IN CASE OF A PERSON OF UNSOUND MIND

HAS BEEN FOLLOWED.................................................................................................9

1. THE APPELLANT DIDN’T APPEAR TO BE OF UNSOUND MIND..........10

2. EVEN IF HE WAS OF UNSOUND MIND, HE WAS NOT INCAPABLE OF

MAKING HIS DEFENCE...........................................................................................10

C. NARCO TEST HOLDS VALIDITY IN THE EYES OF THE LAW..................11

1. THE TEST WAS CONDUCTED AFTER TAKING WRITTEN CONSENT

FROM THE APPELLANT..........................................................................................11

2. THE CONSTITUTIONAL RIGHTS OF THE APPELLANT HAVE NOT

BEEN VIOLATED......................................................................................................12

3. NO VIOLATION OF ANY INTERNATIONAL COVENANTS.....................13

PRAYER FOR RELIEF....................................................................................................XIII

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MEMORIAL on behalf of the RESPONDENT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITES

Cases

Amrit Bhushan v. Union of India, AIR 2011 SC 67..................................................................7

Babulal Bhagwan Khandare & Anr. v. State of Maharastra, AIR 2005 SC 1460.....................4
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1.......................................................4
Bharat Kumar v. State of Rajasthan, (2004) CrLJ 1786............................................................7
Chandmal and Anr. v. State of Rajasthan, AIR 1970 SC 91.....................................................1
Dahyabhai Chhaganbhai Thakkar v. State of Chhattisgarh, (2013) CrLJ 1786.........................7
Devidas Loha Rathod v. State of Maharshtra, AIR 2018 SC 30393..........................................8
Dulal Naik v. State, (1987) Cr LJ 1561 (Cal)............................................................................8
Durga Charan Biswas & Ors. v. Kailash Chandra Das, 54 Ind Cas 645.................................10
Durgacharan Naik & Ors. v. State of Orissa, 1966 AIR 1775.................................................10
Gade Lakshmi Mangraju v. State of Andhra Pradesh, AIR 2001 SC 267.................................2
Girija Shankar v. State of Uttar Pradesh, AIR 2004 SC 1808...................................................4
Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343......................1
Hari Singh Gond v. State of Madhya Pradesh, AIR 2009 SC 31...............................................7
I V Shivaswamy v. State of Mysore, AIR 1971 SC 1638........................................................10
Jaganath Das v. State of West Bengal, 1991 CrLJ (NOC) 32 Cal.............................................7
Jhinku Nai v. State of Uttar Pradesh, AIR 2001 SC 2815.........................................................4
Kalawati vs State of Himachal Pradesh, 1953 AIR 131..........................................................12
Nandini Satpathy vs P.L. Dani, (1978) 2 SCC 424..................................................................12
Oyami Ayatu v. State of Madhya Pradesh, AIR 1974 SC 216..................................................8
Pulu Muru v. State of Assam, (2004) CrLJ 458 (Gau.).............................................................7
R. v. Daniel Mc Naughten, 1843 RR 59....................................................................................6
Rajkishore Purohit v. State of Madhya Pradesh, (2017) 9 SCC 483.........................................4
Ram Kumar v. State of Madhya Pradesh, (2014) 13 SCC 660..................................................4
Ratan Lal v. State of Madhya Pradesh, AIR 1971 SC 1563......................................................7
Selvi Murugan v State of Karnataka, (2010) 7 SCC 263.........................................................12
Shambu Nath Mehra v. the State of Ajmer, 1956 AIR 404.......................................................3
Sheralli Wali Mohammed v. State of Maharashtra, AIR 1972 SC 2443...................................5
State of Bombay, v Kathi Kalu Oghad, 1961 AIR 1808..........................................................12
State of Punjab v. Karnail Singh, (2003) 11 SCC 271...............................................................3

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MEMORIAL on behalf of the RESPONDENT [INDEX OF AUTHORITIES]

State of Uttar Pradesh v. Sahrunissa, AIR 2009 SC 3182.........................................................5

Sudharkaran v. State of Kerala, AIR 2011 SC 67......................................................................7
Surendra Mishra v. State of Jharkhand, AIR 2011 SC 67.........................................................8
Kutappan v. State of Kerala, 1986 CrLJ 271 (Ker.)..................................................................7
Vivian Rodrick v. State of West Bengal, 1971 AIR 1584.......................................................10

Statutes

Code of Criminal Procedure § 160-167 (1973)........................................................................12

Code of Criminal Procedure § 329 (1973)...............................................................................10
Code of Criminal Procedure § 2 (h) (1973).............................................................................11
Code of Criminal Procedure § 53 (1973).................................................................................11
Code of Criminal Procedure § 53(1) (1973)............................................................................12
Indian Penal Code § 302 (1860).................................................................................................1
Indian Penal Code § 34 (1860)...................................................................................................1
Indian Penal Code § 84 (1860)...................................................................................................5
Indian Evidence Act § 105 (1872).............................................................................................6
Indian Evidence Act § 106 (1872).............................................................................................1
Indian Evidence Act § 27 (1872)...............................................................................................9

Other Authorities

Cowan., Decision Theory in Law, Science, and Technology...................................................11

Giorgi-Guarneiri D et al., Practice Guideline for Forensic Psychiatric Evaluation of
Defendants Raising the Defence of Insanity, American Academy of Psychiatry and Law,
(2002).....................................................................................................................................6
Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused,
N.H.R.C................................................................................................................................12
P.N Bakssi, The Law of Criminal Procedure (2019)...............................................................10
P.S.A Pillai, Criminal Law 113 (2022)......................................................................................9
Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore & Anjana Prakash, The Indian penal
code (2021).........................................................................................................................4, 7

Treatises

UNCCPR Art. 14.3(g)..............................................................................................................13

ICCPR Art. 7. 13

Constitutional Provisions

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MEMORIAL on behalf of the RESPONDENT [INDEX OF AUTHORITIES]

Ind. Const. § 20, cl. 3...............................................................................................................12

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MEMORIAL on behalf of the RESPONDENT [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Respondent respectfully submits to the jurisdiction of the Hon’ble High Court invoked
by the Appellant under Section 374 of the Code of Criminal Procedure, 19721. Which reads
as follows:

“Appeals from convictions

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal

jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other Court in which a sentence of imprisonment for more than seven
years 2 has been passed against him or against any other person convicted at the same trial],
may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person, -

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class, or

(b) Sentenced under section 325, or

(c) In respect of whom an order has been made or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court of Session”

1
Hereafter referred to as CrPC.

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MEMORIAL on behalf of the RESPONDENT [STATEMENT OF FACTS]

STATEMENT OF FACTS

DISCOVERY OF THE MURDER OF JOHN AND HIS MOTHER

Ravi Kumar, the milkman came to deliver milk at the Rastogi residence in Mohali at about
7.30 AM on the 2nd of October 2020. On getting no answer of the bell after several attempts, he
pushed the main gate which was open and found the bodies of John and his mother lying in a
pool of blood with their throats slit open and the house in a bit of a mess. He raised alarm and
the neighbours called the police. The police searched the house and Harry came from the
backyard showing surprise. He claimed to have a headache and had gone to get some fresh
air.

HARRY’S STATEMENT REGARDING JOHN’S BEHAVIOUR

Harry stated that John’s behaviour had been weird since his early days and used to scare him
at nights and threatened to kill him one day. He had informed his parents about this, but they
took no notice of it, saying that children often fight among themselves and tend to imagine
things. On one occasion, John woke up at 2:30 am and woke up the entire house screaming
uncontrollably. On being asked, he alleged that Harry had tried to suffocate him by putting a
pillow on his face, but he remembered nothing of it the next morning.

On repetitions of such instances, his parents took John to a doctor who felt that he had Bi-
Polar disorder and advised him some mild medication. The parents were advised to keep
strict vigil of him, especially at night. A few months earlier, John screamed again, and the
parents rushed to find John trying to strangle Harry while grappling on the floor and Harry
claimed to have seen a knife in his hand with which he was about to stab Harry. The next day
John got him a present and posted on social media that Harry was the best brother anyone
could ask for. Over time, Harry claimed that John’s situation worsened, and such altercations
became regular.

THE INCOMING OF DOMESTIC HELP

Harry mentioned about the domestic help Ramu who stayed with them. He was originally
from Bihar and had joined only a few weeks ago. His police verification was pending.

EVIDENCE FOUND AND FILING OF CHARGES

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MEMORIAL on behalf of the RESPONDENT [STATEMENT OF FACTS]

Harry also mentioned that some of the household valuables were missing that were found in
Ramu’s cupboard. A lot of medicines were recovered from Harry’s bedside drawer which
also included stronger versions of the same medicines prescribed to John.

After the Chargesheet, the Court framed charges against Harry and Ramu under Sections 302
read with 34 of the Indian Penal Code2.

NARCO TEST

On his written consent, two NARCO tests were conducted on Harry which yielded two
diametrically opposite results and the forensic psychologists believed that the tests were taken
from two different people. On questioning, the father revealed about the behaviour therapy
that Harry was undertaking.

HARRY’S STATEMENT

Harry gave a statement under Section 161 of the CrPC stating that he had not killed his
mother and brother and it was Ramu who was aware of the fights between the brothers and
made use of it.

FURTHER EVIDENCE AND HARRY’S STATEMENT IN TRIAL COURT

The police found a blood-stained knife hidden in a plastic bag from the garage of the house.
The phone belonging to Ramu was last used the previous evening on a number registered in
Bihar but was unreachable. In the Court, Harry claimed to remember nothing of the night as
he had claimed to take some medicines and slept after watching television. He stated that this
was the act of Ramu as he wanted cash.

RAMU’S ARREST AND STATEMENT

Ramu was arrested after ten days from Delhi, and police found money from his bag which he
claimed to have saved. He stated that Harry had committed the murder to seek revenge from
his brother and that Harry was always under the influence of drugs. He ran away as he was
scared when the incident took place.

CONVICTION BY TRIAL COURT AND CALL FOR APPEAL

The Trial Court convicted Harry and Ramu and punished them with life imprisonment with
additional charges of theft against Ramu and both of the sentences running concurrently.
Harry challenged the order in appeal and additionally stated that since he is not mentally

2
Hereafter referred to as IPC.

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MEMORIAL on behalf of the RESPONDENT [STATEMENT OF FACTS]

stable, so he is entitled to benefit under Section 84 of the IPC which was not given in his
favour.

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MEMORIAL on behalf of the RESPONDENT [QUESTIONS OF LAW]

QUESTIONS OF LAW

[ISSUE I]

IS THE CONVICTION OF HARRY UNDER SECTION 302 OF THE IPC READ

WITH SECTION 34 VALID?

[ISSUE II]

IS THE APPELLANT IS ENTITLED TO RECEIVE THE BENEFITS OF SECTION

84?

[ISSUE III]

IS THERE A VIOLATION OF JUSTICE AND FAIRPLAY IN THE MANNER OF IN

WHICH CONVICTION WAS GIVEN BY THE TRIAL COURT?

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MEMORIAL on behalf of the RESPONDENT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

[ISSUE I]

IS THE CONVICTION OF HARRY UNDER SECTION 302 OF THE IPC READ

WITH SECTION 34 VALID?

It is humbly submitted before the Hon’ble Court that the conviction of the Appellant by the
Trial Court under Section 302 read with Section 34 of the IPC is valid and correct. It can be
concluded as reliance has to be made upon the available circumstantial evidence as there is
no direct evidence and the burden of proof to prove the special knowledge of the Appellant is
upon him under Section 106 of the Indian Evidence Act in which he has failed. This puts a
serious infirmity in the Appellant’s case. Further, the common intention of the parties can be
culled out from the circumstances surrounding the case. This common intention does not
have regard to the offence as a whole but to the criminal act which is the summation of the
series of acts that result in the offence. The common intention between the Appellant and
Ramu can also be inferred from the subsequent conduct of the parties. Hence, the Respondent
successfully proves the offence beyond any reasonable doubt which calls for the conviction
of the Appellant.

[ISSUE II]

IS THE APPELLANT IS ENTITLED TO RECEIVE THE BENEFITS OF SECTION

84?

It is humbly submitted that the Appellant is not eligible to avail the benefits of Section 84 of
the IPC. This is because there is no direct and cogent evidence that proves satisfactorily that
the Appellant was suffering from some kind of mental illness. The Appellant further did not
plea that he had a mental illness during the investigation and only took this plea in the Trial
Court. This raises doubts over the credibility of the plea. Further, even if the Appellant did
suffer from some kind of behavioural issue for which he was taking therapy, it is not in itself
sufficient to prove the rise of defect of reason arising from this mental illness at the time of
the commission of the act. Hence, the Appellant fails to prove that he is legally insane
according to the standard of preponderance of probabilities and this plea must be rejected by
the Court.

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MEMORIAL on behalf of the RESPONDENT [SUMMARY OF ARGUMENTS]

[ISSUE III]

IS THERE A VIOLATION OF JUSTICE AND FAIRPLAY IN THE MANNER OF IN

WHICH CONVICTION WAS GIVEN BY THE TRIAL COURT?

It is submitted that due procedure has been followed by the Police in the investigation and the
trial has been conducted in a manner provided by the law. Furthermore, even if there is any
gap in the investigation, it does not go to the root of the conviction and does not hold
significance in proving the guilt of the Appellant. The NARCO test of the Appellant has been
conducted after taking his written consent. Since the test has been conducted on the basis of
the consent of the accused, no question of violation of Article 20(3) of the Indian Constitution
arises that is right against self-incrimination as well as right to privacy of the Appellant. It is
also submitted that if anyone benefits from this test, then it is the Appellant only who is
claiming insanity defence on the basis of this and therefore, the challenge to the validity of
this evidence holds no stand. Furthermore, there is no violation of any international covenants
to which India is a party.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

1. IS THE CONVICTION OF HARRY UNDER SECTION 302 OF THE IPC READ

WITH SECTION 34 VALID?

[1]. It is humbly submitted before the Hon’ble Court that the conviction of the Appellant by
the Trial Court under Section 302 read with 34 of the IPC is correct and valid because
[A.], there is circumstantial evidence that ties the Appellant to the crime, and [B.], the
common intention between the Appellant and Ramu becomes evident from the
circumstances surrounding the case.

A. THE PRESENCE OF CIRCUMSTANTIAL EVIDENCE THAT TIES THE APPELLANT TO

THE MURDER

[2]. Circumstantial evidence is merely direct evidence applied indirectly. Although it does not
directly relate to the crime committed, but it makes it most likely what has been proposed
to the court to be true. This can be concluded as [1.], the circumstantial evidence provided
by the Respondent is firm and cogent, [2.], the cumulative result of these circumstances
points unerringly towards the guilt of the Appellant and [3.], the Appellant has failed to
prove his special knowledge under Section 106 of the Indian Evidence Act.

2. THE CIRCUMSTANTIAL EVIDENCE PROVIDED BY THE RESPONDENT ARE FIRM AND

COGENT

[3]. In cases where the facts happen suddenly and do not leave behind much direct evidence,
the main event has to be reconstructed before the Court with the help of the surrounding
circumstances of the case3. Further, these circumstances may not directly relate to the
crime, but they indirectly point at the crime and is merely direct evidence applied
indirectly4.
[4]. In the instant case, there has been a previous history of altercations between the victim
and the Appellant5 which raises a reasonable doubt of another such altercation once again.
[5]. Further, the Appellant was present in the same house where the murder was committed 6
and it is beyond any stretch of imagination how the Appellant must have not been aware

3
Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343.
4
Chandmal and Anr. v. State of Rajasthan, AIR 1970 SC 91.
5
Moot Proposition, ¶ 6, ¶ 7.
6
Moot Proposition, ¶ 12.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

of the crime being committed. It was also noted by the milkman who entered the house
that morning that the house was in a mess7 which furthers this proposition.
[6]. It must further be noted that the policemen could not find the Appellant when they
searched the house8 and he suddenly came from the backyard which seems to be an
attempt to hide the evidence, which was the murder weapon in this case.
[7]. All these evidences, when coupled by the statements given by him regarding the kind of
relationship that the Appellant had with his brother9 point towards the involvement of the
Appellant in the offence.

3. CUMULATIVE RESULT OF THE CIRCUMSTANCES POINT TOWARDS THE GUILT OF

THE APPELLANT

[8]. While appreciating a case based on circumstantial evidence, one circumstantial evidence
by itself may not unerringly point to the guilt of the accused. It is the cumulative result of
all circumstances which could matter10. In this regard, the presence of the Appellant at the
crime scene when coupled by his inaction point towards the guilt of the individual.
[9]. It must also be noted that the Appellant claimed that Ramu had murdered John and his
mother for money11. However, the things that were claimed to be missing are found in
Ramu’s cupboard while he had left12. This raises the question that why Ramu would leave
the precious items in his cupboard when he wanted to steal them. Therefore, this seems
like an afterthought on the part of the Appellant to frame Ramu in the case.
[10]. Moreover, the Appellant might also possess the motive to gain valuables as a result of
the different financial situations of his and the victim 13. He might have kept those
valuables and then put it all in Ramu’s cupboard in an attempt to prove his innocence.
[11]. It is further submitted that Ramu claimed that the Appellant was always under the
influence of drugs14 which can be further corroborated by the medicines found in the
bedside drawer of the Appellant15.
[12]. The murder weapon was also found to be disposed in the garage of the house 16 which
raises the reasonable doubt over the reason Ramu might have allegedly disposed the
7
Moot Proposition, ¶ 1.
8
Moot Proposition, ¶ 2.
9
Moot Proposition, ¶ 6.
10
Gade Lakshmi Mangraju v. State of Andhra Pradesh, AIR 2001 SC 2677.
11
Moot Proposition, ¶ 11.
12
Moot Proposition, ¶ 9.
13
Moot Proposition, ¶ 3.
14
Moot Proposition, ¶ 13.
15
Ibid note 12.
16
Moot Proposition, ¶ 12.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

murder weapon in the house itself when he had the opportunity to dispose it at a remote
place while he was fleeing from the scene.
[13]. This must also be looked in the context of the Appellant’s initial attempt to hide the
relationship that he shared with his brother by claiming that everything was well and that
they were a happy family17.
[14]. Therefore, all these circumstances form a chain of events that cannot be true if we do
not presume the guilt of the Appellant and are sufficient to establish his crime.

4. THE APPELLANT HAS FAILED TO PROVE HIS SPECIAL KNOWLEDGE IN THE CASE

[15]. When any fact is specially within the knowledge of any person, the burden of proving
that fact is upon him18.
[16]. Furthermore, if the accused is unable to explain his special knowledge satisfactorily, it
would be a factor against him while considering the totality of the circumstantial
evidence19.
[17]. In the instant case, the Appellant pleads that he remembers nothing of that night as he
had taken some medicines and slept20. The onus of proving this fact that is in the special
knowledge of the Appellant is upon him and not the Respondent which he has not been
able to prove satisfactorily.
[18]. His claim is not documented by any evidence, and this should be a factor to be
considered against him while considering the circumstances surrounding the case in
totality.

B. THE PRESENCE OF CIRCUMSTANCES THAT POINT TOWARDS THE COMMON

INTENTION BETWEEN THE PARTIES

[19]. It is humbly submitted that the Trial Court has correctly identified the presence of
circumstances that warrant the presence of common intention between the parties as [1.],
common intention has regard to the summation of the series of acts that point towards the
offence, and [2.] the Appellant has participated in the overall crime though he cannot be
tied to any overt act.

1. THE COMMON INTENTION HAS REGARD TO THE SUMMATION OF THE SERIES OF

ACTS THAT POINT TOWARDS THE OFFENCE

17
Moot Proposition, ¶ 3.
18
Shambu Nath Mehra v. the State of Ajmer, 1956 AIR 404.
19
State of Punjab v. Karnail Singh, (2003) 11 SCC 271.
20
Moot Proposition, ¶ 13.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

[20]. Section 34 of the IPC does not read “common intention of all” or “intention common to
all”. The presence of accomplice provides encouragement and support to the person
actually committing the act21.
[21]. The proof of common intention is rarely available and has to be culled out from the
facts and circumstances of the case22. It has to be deciphered from the conduct and
behaviour of the persons accused of sharing common intention23.
[22]. Furthermore, the common intention has regard to the totality of the series of acts which
result in the offence24. This can be proved by direct evidence or by the inferences from the
acts or attending circumstances of the case25.
[23]. In the present case, the Appellant In the present case, the Appellant did not raise any
kind of alarm after the murder that he alleged was committed by Ramu though it seems
highly improbable that he might have not got to know about the act. Furthermore, he did
not even get a police verification done of Ramu26.
[24]. It is evident that both Ramu and the Appellant had probable motive to commit the crime
though for different reasons. Here, Ramu probably wanted money and the Appellant had
the motive of revenge against his brother with whom he had frequent altercations27.
[25]. Therefore, this intention of the parties give rise to the common intention to commit the
murders of John Rastogi and his mother.

2. THE PARTICIPATION OF THE APPELLANT NEED NOT BE THROUGH AN OVERT ACT

[28]. It is not necessary that the acts of several persons must be the same. The acts may be
different in character but must have been actuated by one and same common intention28.
[29]. This section is intended to cover a case where a number of persons act together and
there is no direct evidence for the prosecution to prove which one of the persons had
actually committed the crime29.
[30]. A specific overt act is not necessary for a person to be held liable under this section 30.
An act also includes an omission to act31.
21
Girija Shankar v. State of Uttar Pradesh, AIR 2004 SC 1808.
22
Ram Kumar v. State of Madhya Pradesh, (2014) 13 SCC 660.
23
Rajkishore Purohit v. State of Madhya Pradesh, (2017) 9 SCC 483.
24
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1.
25
Jhinku Nai v. State of Uttar Pradesh, AIR 2001 SC 2815.
26
Moot Proposition, ¶ 9.
27
Moot Proposition, ¶ 7.
28
Babulal Bhagwan Khandare & Anr. v. State of Maharastra, AIR 2005 SC 1460.
29
Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore & Anjana Prakash, The Indian penal code (2021).
30
State of Uttar Pradesh v. Sahrunissa, AIR 2009 SC 3182.
31
Ibid note 24.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

[31]. In the present case, there is no direct evidence that proves that the offence was
committed by the Appellant. However, his inaction to report the crime, without any
reasonable explanation that has been proved by him, raises a doubt.
[32]. This when coupled with the lack of explanation regarding the disposal of the murder
weapon at the home32 rather than at a remote location by Ramu establishes the
Appellant’s participation in the commission of the offence.
[33]. Therefore, it is submitted that the conviction of Harry by the Trial under Section 302 of
the IPC read with Section 34 of the IPC is valid and correct and must be upheld by the
Hon’ble Court.

3. IS THE APPELLANT ENTITLED TO RECEIVE THE BENEFITS OF SECTION

84 OF THE IPC?

[34]. It is humbly submitted that the Appellant is not entitled to receive the benefits of
Section 84 of the IPC because [A.], the burden of proof of proving the insanity of the
person under Section 84 of the IPC is on the Appellant and not the Respondent, [B.],
there is no firm and cogent evidence to prove the medical insanity of the Appellant and
[C.], there is no evidence proving the legal insanity of the Appellant.

A. THE BURDEN OF PROOF OF PROVING INSANITY IS ON THE APPELLANT AND NOT

THE RESPONDENT

[35]. The burden of proving the circumstances bringing the case under Section 84 of the IPC
is upon the Appellant and the Court shall presume the absence of such circumstances 33.
This burden of proof has been cast upon the accused under Section 105 of the Indian
Evidence Act, 1872.
[36]. In the present case, the Appellant has pleaded that he is eligible to receive the benefits
of Section 84 in the Trial Court and not before that. During the course of investigation, he
has repeatedly claimed the medical insanity of his brother but not of himself 34 which
raises a serious doubt on the credibility of his claim.
[37]. Furthermore, the power to deliberate upon this claim is on the Court and not the
Respondent35. Hence, the Respondent cannot be held liable for not considering the
defence of the Appellant.

32
Ibid note 16.
33
Sheralli Wali Mohammed v. State of Maharashtra, AIR 1972 SC 2443.
34
Moot Proposition ¶ 6, ¶ 7.
35
Indian Evidence Act § 105 (1872).

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

B. LACK OF COGENT EVIDENCE TO PROVE THE MEDICAL INSANITY OF THE

APPELLANT

[39]. The defence of insanity is a legal construct that excuses the accused with mental illness
from legal responsibility for criminal behaviour36. It is further submitted that in order to
avail the benefits of Section 84 of the IPC, a person must be of unsound mind37.
[40]. In the present case, the father of the Appellant has claimed that he was suffering from
some kind of behaviour issues for which he was taking therapy 38. However, behavioural
issues do not account for medical insanity alone.
[41]. Moreover, the medicines that were found in the bedside drawer of Harry do not alone
warrant for the fact that he was suffering from some kind of mental disorder for which he
was taking medicines.
[42]. It must also be noted that the Appellant has raised the question over the validity of the
NARCO test. Hence, if he uses the same NARCO test results to be evidence to support
his claim for insanity, he seems to be in contradiction to his argument over the validity of
such a test,
[43]. Therefore, there is a lack of cogent evidence to support the Appellant’s claim of being
mentally insane.

C. LACK OF EVIDENCE THAT PROVES THE LEGAL INSANITY OF THE APPELLANT AT

THE TIME OF THE COMMISSION OF THE ACT

[45]. The Appellant has failed to provide any cogent evidence to support the claim that he is
legally insane. This can be inferred from [1.], the Appellant has failed to prove the defect
of reason arising from his mental illness [2.], the subsequent conduct of the Appellant
warrant for his legal sanity.

1. THE APPELLANT HAS FAILED TO PROVE THE DEFECT OF REASON ARISING FROM
HIS MENTAL ILLNESS

[46]. For a party to be considered under Section 84 of the IPC, it must be suffering from a
defect of reason in terms of understanding the nature of the crime and the wrongness of
it39.

36
Giorgi-Guarneiri D et al., Practice Guideline for Forensic Psychiatric Evaluation of Defendants Raising the
Defence of Insanity, American Academy of Psychiatry and Law, (2002).
37
R. v. Daniel Mc Naughten, 1843 RR 59.
38
Moot Proposition, ¶ 12.
39
Jaganath Das v. State of West Bengal, 1991 CrLJ (NOC) 32 Cal.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

[47]. The crucial time of such incapability due to the unsoundness of mind is the time when
he committed the offence40. The accused must prove that at the time of committing the
offence the person was non- compos mentis41 by illness and was ignorant of the physical
characteristics of the act4243.
[48]. He must also be incapable of knowing that the act that he was doing was wrong and
contrary to law44.
[49]. In the present case, the Appellant was just suffering from some kind of behavioural
issue for which he was taking therapy 45. This does not provide for a mental illness of such
a magnitude that would cause a defect of reason in the Appellant.
[50]. In the absence of such evidence that warranting for a mental illness that results in the
loss of legal reasoning in the Appellant, the Court must stick to the presumption that the
Appellant is sane and capable of knowing the consequences of his actions.

2. THE SUBSEQUENT CONDUCT OF THE APPELLANT WARRANT FOR HIS LEGAL SANITY

[51]. The relevant factors for ascertaining insanity include behaviour of the accused before
and after the commission of the offence and the events that happened immediately before
and after the offence46.
[52]. This includes an assessment of evidences including planning, avoiding detection,
disposing of evidence and presence of accomplice 47. The insanity must be at the time of
committing the offence and not before or after that48.
[53]. The person cannot be held to be insane if he was odd or irascible 49. He cannot be held to
be insane merely because he made a clean breast of the crime50 or made no attempt to
escape51.
[54]. In the present case, the mere fact that the Appellant did not run away from the crime
scene is not sufficient alone to establish the insanity of the Appellant.

40
Hari Singh Gond v. State of Madhya Pradesh, AIR 2009 SC 31.
41
Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore & Anjana Prakash, The Indian penal code (2021).
42
Amrit Bhushan v. Union of India, AIR 2011 SC 67.
43
Bharat Kumar v. State of Rajasthan, (2004) CrLJ 1786.
44
Kuttapan v. State of Kerala, 1986 CrLJ 271 (Ker.).
45
Ibid note 38.
46
Dahyabhai Chhaganbhai Thakkar v. State of Chhattisgarh, (2013) CrLJ 1786.
47
Sudharkaran v. State of Kerala, AIR 2011 SC 67.
48
Ratan Lal v. State of Madhya Pradesh, AIR 1971 SC 1563; Pulu Muru v. State of Assam, (2004) CrLJ 458
(Gau.).
49
Surendra Mishra v. State of Jharkhand, AIR 2011 SC 67.
50
Oyami Ayatu v. State of Madhya Pradesh, AIR 1974 SC 216.
51
Devidas Loha Rathod v. State of Maharshtra, AIR 2018 SC 30393.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

[55]. It must also be noted that the Appellant blamed Ramu for the crime and understood the
physical consequences of the act of murder52. The Appellant alleges that Ramu had
committed the crime and tried to frame him 53 which further indicates that he understood
that the act committed was wrong and contrary to the law.
[56]. All these instances of the subsequent conduct of the Appellant suggests that he is not
legally insane and hence must not receive the benefits of Section 84.

3. IS THERE A VIOLATION OF JUSTICE AND FAIRPLAY IN THE MANNER

WHICH THE CONVICTION WAS GIVEN BY THE TRIAL COURT?

[57]. It is humbly submitted that there is no violation of the principles of natural justice and
fair play because [A.], the due procedure has been followed in the investigation, and [B.],
the trial procedure in case of a person of unsound mind has been followed by the trial
court and [C.], NARCO test holds validity under Section 27 of the Indian Evidence Act,
1872.

A. DUE PROCEDURE HAS BEEN FOLLOWED IN THE INVESTIGATION

[58]. The due procedure has been followed by the police in the investigation as [1.], the onus
of proving insanity is on the Appellant and [2.], even if there is any gap in the
investigation, it does not go into the root of the conviction.

1. THE ONUS OF PROVING INSANITY IS ON THE APPELLANT

[59]. According to Section 105 of the Indian Evidence Act, 187254, the burden of proving
insanity before the Court is upon the accused and the Court shall presume the accused to
be sane until proven otherwise55.
[60]. The investigating officer is under an obligation to get the accused medically examined
only when there is some previous history of mental insanity or abnormality of mind put
before the court56.
[61]. In the instant case, the accused did not suffer from any legal or medical insanity before
the incident concerned, he only had certain behavioural issues which cannot be included
as unsoundness of mind under Section 84 of the IPC 57. Hence, there was no obligation on
52
Moot Proposition, ¶ 11.
53
Ibid.
54
Indian Evidence Act § 105 (1872).
55
Dulal Naik v. State, (1987) Cr LJ 1561 (Cal).
56
P.S.A Pillai, Criminal Law 113 (2022).
57
Indian Penal Code § 84 (1860).

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

the investigation officer to conduct any such medical examination as there was no
previous history of insanity of the accused.

2. EVEN IF THERE IS ANY GAP IN THE INVESTIGATION, IT DOES NOT GO TO THE

ROOT OF THE INVESTIGATION

[62]. The conviction of the Appellant is based on the circumstantial evidence which has been
well established above.
[63]. Furthermore, the NARCO test was conducted on the written consent of the Appellant,
the statement of witnesses and a detailed confession of the accused has been recorded
well under Section 161 of CrPC.
[64]. However, even if there is any gap in the investigation, it does not go to the root of the
conviction and does not hold significance in proving the guilt of the Appellant.

B. THE TRIAL PROCEDURE IN CASE OF A PERSON OF UNSOUND MIND HAS BEEN

FOLLOWED

[65]. The due procedure given under Section 329 of the CrPC has been followed by the trial
court in the trial of the Appellant as [1.], the Appellant did not appear to be of unsound
mind and [2.], even if he is of unsound mind, he was not incapable of asking his defence
in consequence of such insanity.

1. THE APPELLANT DID NOT APPEAR TO BE OF UNSOUND MIND

[66]. Section 329 of the CrPC58 gives the procedure for the trial of a person of unsound mind.
It contemplates two stages of the procedure. The first stage is that the person must appear
to the court to be of unsound mind and in consequence of which he is incapable of
making his defence. The second stage consists of an inquiry into the unsoundness of mind
and incapacity of the accused59.
[67]. There must be something in the demeanour of the accused who is brought up for trial
which would raise a doubt in the mind of his court that he is of unsound mind and
consequently incapable of making his defence60.
[68]. Only if such a doubt is raised in the mind of the court, it is obligatory on the court in the
first stance to try the fact of unsoundness of mind and incapacity of the accused 61. Where

58
Code of Criminal Procedure § 329 (1973).
59
P.N Bakssi, The Law of Criminal Procedure (2019).
60
Durga Charan Biswas & Ors. v. Kailash Chandra Das, 54 Ind Cas 645.
61
Vivian Rodrick v. State of West Bengal, 1971 AIR 1584.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

it appears to the court that the accused is perfectly normal and that no mental disorder is
apparent, there is no obligation to make any inquiry62.
[69]. In the instance case, the Appellant was not suffering from any legal or medical insanity
at the time of the trial. He had only certain behavioural issues which cannot be included
as unsoundness of mind under Section 84 of the IPC.
[70]. Also, there was nothing in the demeanour of the Appellant to raise in the mind of the
court that he is of unsound mind. That is, he gave a detailed confession under Section 161
of CrPC63, he mentioned about all the past incidents and instances of altercations with the
deceased64. He also alleged that the act is of Ramu instead of him 65. It shows that he was
in perfect state of mind during the trial.
[71]. It is, therefore, submitted that prima facie Harry did not appear to be insane.

2. EVEN IF HE WAS OF UNSOUND MIND, HE WAS NOT INCAPABLE OF MAKING HIS

DEFENCE

[72]. After the court is satisfied with the first stage, an inquiry is held as to establish the
unsoundness of the accused and capability to make a defence and if it is proven, further
proceedings are postponed66.
[73]. As already established, the Appellant did not appear to be of unsound mind during the
trial. However, even if the results of NARCO Test and the statement of forensic
psychologists67 is taken into consideration and conclusively that the Appellant was
suffering from a mental illness known as bipolar disorder, it is not established that the
Appellant was incapable of making his defence in the court.
[74]. If the conduct of the Appellant during the trial is considered, it can be easily inferred
that he was capable of making his defence in the Court. The Appellant gave a detailed
confession under Section 161 of CrPC and also put allegations on the co-accused that the
murder of his brother and mother is the handiwork of Ramu68.
[75]. These facts and circumstances suggest that the Appellant was not incapable of making
his defence in consequence of unsoundness of mind if any. The Appellant’s case does not
satisfy the first stage of unsoundness of mind and consequent incapability to make a

62
Durgacharan Naik & Ors. v. State of Orissa, 1966 AIR 1775.
63
Moot Proposition, ¶10.
64
Moot Proposition, ¶2, ¶7.
65
Moot Proposition, ¶11.
66
I V Shivaswamy v. State of Mysore, AIR 1971 SC 1638.
67
Moot Proposition, ¶10.
68
Ibid Note 13.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

defence, and thus there is no need for the second stage of inquiry of his unsoundness of
mind and postponement of proceedings thereby.
[76]. Therefore, the trial proceedings of the Appellant are valid under Section 329 of the
CrPC69 all the required procedures have been followed by the Trial Court. There is no
violation of the procedure established by law.

C. NARCO TEST HOLDS VALIDITY IN THE EYES OF THE LAW

[77]. It is humbly submitted that the NARCO Test conducted on the Appellant is valid
because [1.], the written consent of the person in question was taken and [2.], no
constitutional rights of the individuals were violated in doing so, and [3.], it does not
violate any international covenants as alleged.

1. THE TEST WAS CONDUCTED AFTER TAKING WRITTEN CONSENT FROM THE
APPELLANT

[78]. A criminal investigation is an applied Science that involves the study of facts, used to
identify, locate and prove the guilt of a criminal. The law needs to find the truth to
resolve human conflicts and one method of doing so is to use the field of science70.
[79]. The investigation under Section 2(h) of the CrPC71 includes all the proceedings under
this code for the collection of evidence conducted by a police officer.
[80]. Deceptive detector tests like NARCO Test are one such method of doing an
investigation that finds its legal sanction under Section 53 of the CrPC 72 which defines
examination of evidence and includes “such other tests”73 which are necessary in a
particular case. These tests come under the general power of investigation under Sections
160-167 of the CrPC74.
[81]. According to the guidelines of the National Human Rights Commission 75, NARCO
Analysis tests can be administered if it is based on the consent of the accused76.
[82]. Therefore, it is submitted that the NARCO test was conducted on Harry which was
necessary to establish the case fairly and was administered on his written consent. If
anyone benefits from this test, then it is the Appellant only who is claiming insanity

69
Code of Criminal Procedure § 329 (1973).
70
Cowan., Decision Theory in Law, Science, and Technology.
71
Code of Criminal Procedure § 2 (h) (1973).
72
Code of Criminal Procedure § 53 (1973).
73
Ibid.
74
Code of Criminal Procedure § 160-167 (1973).
75
Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused, N.H.R.C.
76
Selvi Murugan v State of Karnataka, (2010) 7 SCC 263.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

defence based on this, and therefore, the challenge to the validity of this evidence holds
no stand.

2. THE CONSTITUTIONAL RIGHTS OF THE APPELLANT HAVE NOT BEEN VIOLATED

[83]. Article 20(3) of the Indian Constitution 77 provides that “no person who is accused of a
crime can be compelled to be a witness against himself”. However, one can seek
protection under it only when the accused is compelled to be a witness against himself78.
[84]. The Apex Court has also acknowledged the fact that voluntary statements by the
accused can be invaluable in solving a crime and emphasized that Article 20(3) does not
apply at all to cases where the confession is made by an accused without any inducement,
threat, promise, or coercion79.
[85]. The Apex Court, on the issue of whether narco-analysis is a compulsion on the invasion
of the human body, has also referred to Section 53(1) of the CrPC 80which gives for
justification the use of a Narco-analysis test if done in a prescribed manner81.
[86]. In the instant case, the Appellant was not compelled to give NARCO test. At the same
time, written consent was taken from him before administering it.
[87]. Therefore, the challenge to its validity and thereby contention that there is a violation of
principles of natural justice and fair play hold no value.

3. NO VIOLATION OF ANY INTERNATIONAL COVENANTS

[88]. Article 14.3(g) of the U.N. Covenant on Civil and Political Rights 82, 1966 gives that in
the determination of any criminal charge against an accused, he will not be compelled to
testify against himself.
[89]. Furthermore, Part 3, Article 7 of the International Covenant on Civil and Political
Rights (ICCPR) gives that no one shall be subjected without his free consent to medical
or scientific experimentation.
[90]. However, in the instant case, the person was neither compelled to give NARCO Test
nor he was subject to any medical or scientific test without his free consent83.

77
Ind. Const. § 20, cl. 3.
78
State of Bombay, v Kathi Kalu Oghad, 1961 AIR 1808.
79
Nandini Satpathy vs P.L. Dani, (1978) 2 SCC 424; Kalawati vs State of Himachal Pradesh, 1953 AIR 131.
80
Code of Criminal Procedure § 53(1) (1973).
81
SeIvi Murugesan v. State of Karnataka, (2010) 7 SCC 263.
82
UNCCPR Art. 14.3(g).
83
Moot Proposition, ¶10.

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MEMORIAL on behalf of the RESPONDENT [ARGUMENTS ADVANCED]

[91]. Therefore, it is humbly submitted that the administration of the NARCO Test
administered to the Appellant on his written consent does not violate any international
covenants.

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MEMORIAL on behalf of the RESPONDENT [PRAYER FOR RELIEF]

PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, arguments advanced, and authorities cited, it is
most humbly prayed before this Court that it may be pleased to adjudge and declare that:

I. The conviction of the Appellant under Section 302 of the IPC read with Section 34

is valid.

II. The Appellant is not entitled to receive the benefits of section 84.

III. There is no violation of justice and fair play in the manner in which conviction was
given by the trial court.

And pass any other order as it may deem fit in favour of the RESPONDENT to meet the
ends of justice, fairness and equity.

All of which is humbly prayed.

Date: 25 November 2022 S/d

Counsels for the Respondent

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