BEFORE THE HONORABLE COURT OF SESSIONS AT Srinagar

For offences Charged under Section 302, 304B, 498A, read with 34 of IPC

WRITTEN SUBMISSION ON BEHALF OF THE PROSECUTION

UT Of J&K Prosecution

v.

Amit Kumar & Ranjana Defence

Most respectfully submitted before the Hon’ble Judges of Court of Sessions at

Srinagar.

MEMORANDUM ON BEHALF OF THE PROSECUTION

FILED BY THE COUNSELS FOR THE PROSECUTION

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................................................................... II

INDEX OF AUTHORITIES ............................................................................................................ III

TABLE OF CASES ......................................................................................................................... IV

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

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

STATEMENT OF ISSUES .............................................................................................................. IX

SUMMARY OF ARGUMENTS ...................................................................................................... X

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

CONTENTION 1: THAT THE ACCUSED ARE GUILTY FOR THE OFFENCE UNDER
SECTION 498A, 304 READ WITH SECTION 34 OF THE INDIAN PENAL CODE,1860. 1

THAT THE ACCUSED ARE GUILTY OF OFFENCE U/S 498A IPC............................. 1

THAT THE ACCUSED ARE GUILTY OF OFFENCE U/S 304B, IPC ..................... 3

THAT THE ACCUSED SHALL BE JOINTLY HELD GUILTY U/S 34, IPC ................. 7

CONTENTION 2: THAT THE ACCUSED ARE GUILTY OF OFFENCE UNDER

SECTION 302 READ WITH SECTION 34 OF THE INDIAN PENAL CODE,1860. ............ 8

THAT MENS REA OF MURDER IS ESTABLISHED ..................................................... 9

THAT ACTUS REUS OF MURDER IS ESTABLISHED ................................................. 9

CONTENTION 3: THE CIRCUMSTANCES OF THE CASE ARE OF CONCLUSIVE

NATURE AND IS BEYOND REASONABLE DOUBT .......................................................... 11

PRAYER FOR RELIEF ................................................................................................................... XI

MEMORIAL ON BEHALF OF THE PROSECUTION

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 PAGE NO. II

ABBREVIATION EXTENSION

& And

§ Section

¶ Paragraph

SCC Supreme Court Cases

Anr. Another

U/S Under Section

Cr. Criminal

v. Versus

ed. Edition

etc. Etcetera

Hon’ble Honourable

i.e. that is

Ltd. Limited

No. Number

Ors. Others

Govt. Government

SC Supreme Court

HC High Court

P&H Punjab and Haryana

T.N Tamil Nadu

LIST OF ABBREVIATIONS

MEMORIAL ON BEHALF OF THE PROSECUTION

 PAGE NO. III

INDEX OF AUTHORITIES

STATUTES

• The Code of Criminal Procedure,1973.

• The Dowry Prohibition Act,1961 (Act 28 of 1961).
• The Indian Evidence Act,1872 (Act 1 of 1872).
• The Indian Penal Code,1860 (Act 45 of 1860).
• The Protection of Woman from Domestic Violence Act, 2005 (Act 43 of 2005).

BOOKS AND DIGESTS

• The Law of Evidence, Ratanlal & Dhirajlal, 25th Ed.

DICTIONARIES, ONLINE DATABASES & WEBSITES

• B.A. Garner, Black’s Law Dictionary, 8th ed. (2004).

• SCC Online

• LexisNexis

• Aiyar, P Ramanatha, The Law Lexicon, 2nd ed. (2006).

MEMORIAL ON BEHALF OF THE PROSECUTION

 N . IV
PAGE NO

TABLE OF CASES

S. Pg
CASE TITLE CITATION
No. No.
1.
Akula Ravinder v. State of AP AIR 1991 SC 1142 5

2.
Arbind Kumar Ambasta v. State of Jharkhand 2002 Cr. LJ 3973(Jhar) 5

3.
Ashok Kumar v. State of Haryana (2010) 12 SCC 350 5

4.
Atbir v.Govt. (NCT of Delhi)
Delh [2010] 9 SCC 1 10

5.
Brij Bhushan Sharma v. State of U.P 2001 CriLJ 1384 12

6.
Chhotanney v. State of Uttar Pradesh & Ors AIR 2009 SC 2013 12

7.
Dasrath v. State of M.P AIR 2010 SC 2592 5

8.
Gagan Kanojia v. State of Punjab (2006) 13 SCC 516 11

9.
Gananth Pattanaik v. State of Orissa (2002) 2 SCC 619 2

10.
Inder Raj Malik v. Sunita Malik (1986) Cr.LJ 1510 3

11.
Jai Bhagwan v. State of Haryana AIR 1999 SC 1083 8

12
Jivendra Kumar v. Jaidrath Singh & Ors (2000) 3 SCC 154 4

13.
K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618 10

14.
Kaliyaperumal v. State of T.N AIR 2003 SC 3828 6

15.
Kamlesh Prabhudas Tanna v. State of Gujarat (2013) 15 SCC(Cri) 688 4

16.
Kansa Behra v. State of Orissa AIR1987 SC 1507 10

17.
Kashmir Kaur v. State of Punjab AIR 2013 SC 1039 5

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 PAGE NO. V

18.
Keshab Chandra Panda v. State of Orissa 1995 Cr.LJ 174 (Ori) 6

19.
Kulwant Singh v. State of Punjab (2013) 4 SCC 177 6

20.
Kundala Bala Subranayam v. State of AP 1993 Cr.LJ 1635 12

21.
M. Srinivasulu v. State of AP 2007 (12) SCC 443 6

22.
Meesala Ramakrishan v. State of A.P (1994) 4 SCC 182 10

23
Mukesh v. State (NCT of Delhi) and Ors. (2017) 6 SCC 1 10

24.
Muthu Kutty v. State of T.N (2005) 9 SCC 113 8

25.
Nand Kishore v. State of Maharashtra 1995 Cr.LJ 3706 6

26
Nathu v. State of UP AIR 1956 SC 56 7

27.
Pawan Kumar v. State of Haryana AIR 1998 SC 958 4

28.
Public Prosecutor v. Somasundaram And Ors AIR 1959 Mad 323 9

29.
Rajammal v. State of T. N 1993 Cr.LJ 3029 (Mad.) 12

30.
Rajbir v. State of Haryana AIR 2011 SC 568 8

31.
Ram Badan Sharma v. State of Bihar (2006) 10 SCC 11547 6

32.
Rameshbhai Mohanbhai Koli v. State of Gujarat (2011) 11 SCC 111 11

33.
S.Gopal Reddy v. State Of Andhra Pradesh 1996 SCC (4) 596 3

34.
Sachin Jana v. State of West Bengal (2008) 3 SCC 390 7

35.
Satbir Singh v. State of Haryana (2005) 12 SCC 72 10

36.
Satya Narayan Tiwari v. State of UP 2011 Cr.LJ 445 2

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 PAGE NO. VI

37.
Shanti Behal v. State (Delhi Admin.) 1994 Cr.LJ 2043 7
38.
Soni Devrajbhai Babubhai v. State of Gujarat and
1991 AIR 2173. 7
Others
39.
State of A.P. v. Raj Gopal Asawa AIR 2004 SC 1993 4
40.
State of HP v. Rajiv Jassi 2016 (12) SCC 682 11
41.
State of Maharashtra v. Shivaji Anandrao 2002 Cr.LJ 4198 12
42.
989 Cr.LJ (NOC) 13
State of Punjab v. Amarjit Singh 12
(P&H)
43.
State of Punjab v. Fauja Singh (1997) 3 Cr LJ 170 (P&H) 11
44.
State of UP v. Ashok Kumar Srivastava AIR 1992 SC 840 8
45.
State of UP v. Randhir AIR 1959 All 727 11
46.
Amit Bajaj v. State of MP (2001) 9 SCC 417 5
47.
Surender Chauhan v. State of M.P (2000) 4 SCC 110 9
48.
Tarsem Singh v. State of Punjab (2008) 16 SCC 155 6

49 AIR 2009 SC (Suppl.)

U. Suvetha v. State 1
1451
50.
Waikhom Yaima Singh v. State of Manipur 2011 Cr LJ 2673 10

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

Section 184 of the Code of Criminal Procedure, 1973.

Section 177: Ordinary place of inquiry and trial

Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.

Read with Section184: Place of trial for offences triable together. Where-

MEMORI
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 PAGE NO. VII

(a) The offences committed by any person are such that he may be charged with and tried at
one trial for, each such offence by virtue of the provisions of section 219, section 220 or
section 221, or

(b) the offence

ce of offences committed by several persons are such that they may be charged
with and tried together by virtue of the provisions of section 223, the offences may be
inquired into or tried by any Court competent to inquire into or try any of the offences.

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STATEMENT OF FACTS

1. Radha Roy was a sober girl from a well

well-off family and on 9 th November, 2012, she got
married to her friend and batchmate, Amit Kumar, from a middle-class
class background who
had desires for a luxurious lifestyle.

2. Radha Roy moved into her matrimonial home and on many occasions had some differences
with her in laws. Due to Amit’s quest to maintain his high life style, the family was in a
near financial crisis.

3. Further, he kept on demanding money from his in laws from time to time and in 2015,
Amit Kumar asked his in laws for the loan of 50 lac rupees, however, he was given Rs. 20
lac, which he later refused to return.

4. In 2016, Radha gave birth to a baby girl which resulted in increased expenses and on many
occasions, fights turned physical also. He even used to blame Radha for being from a
family of beggars in drunken state. Hurt by this remark she even tried to slit her wrists and
end her life but was saved.

5. In April 2018, she gave birth to a baby boy which seemed like an additional burden on the
family where disturbed by financial problems, Amit used to vent his frustration on
Sunaina. She in turn became more agitated and started suffering from depression as well
as mood swings.

6. On 4th January 2019, neighbors saw Radha running out of the house with her dress on
fire and her mother-in-law
law was running after her. She collapsed and was taken to hospital
and admitted with 90% burns, where doctors de
declared
clared her unfit to record her statement
immediately.

7. Her condition improved briefly on the morning of January 5 and the police was called
where she tried to speak but she could not and then she pointed her figure twice where her
mother-in-law named Sunita and Amit were standing and succumbed to her injuries.

8. After the post mortem examination and based on Sunaina’s dying declaration and home
search where a kerosene canister was found, Sunaina’s mother
mother-in-law
law and husband were
arrested and later sent to judic
judicial custody by the court.

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 PAGE NO. IX

9. They were put to trial before Sessions Court at Srinagar and as per the charge sheet of
police, were charged for the offences punishable under Sections 302, 304B, 498A, read
with 34 of IPC & Sec 32 of Indian Evidence Act, 1872.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER OR NOT THE ACCUSED ARE GUILTY FOR THE OFFENCE CHAR
CHARGED
UNDER SECTION 498A, 304 OF IPC READ WITH SECTION 34 OF IPC?

ISSUE 2

WHETHER OR NOT THE ACCUSED ARE GUILTY FOR THE OFFENCE CHARGED
UNDER SECTION 302 OF IPC READ WITH SECTION 34 OF IPC?

ISSUE 3

WHETHER OR NOT THE CIRCUMSTANCES OF THE CASE ARE OF CONCLUSIVE

NATURE AND BEYOND REASONABLE DOUBT?

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SUMMARY OF ARGUMENTS

CONTENTION 1: THAT THE ACCUSED ARE GUILTY FOR THE OFFENCE OF

CRUELTY & DOWRY DEATH READ WITH SECTION 34 OF THE INDIAN PENAL
CODE, 1860

It is humbly submitted before the Hon’ble Court that the accused, Amit Kumar and Sunita are
guilty of the offence of subjecting the deceased, Radha Roy to cruelty under Section 498A of
the Indian Penal Code, 1860. Further, the accused
accused are also guilty of causing Dowry Death
under Section 304B of the Indian Penal Code, 1860 by ruthlessly setting Radha alive on fire
due to insufficient dowry. Lastly, the accused are also guilty under Section 34 of the Indian
Penal Code, 1860 as the criminal act is done by several persons, in furtherance of the common
intention of Dowry Death. Therefore, the accused are guilty for the offence of cruelty &
dowry death read with section 34 of the Indian Penal Code, 1860.

CONTENTION 2: THAT THE ACCUSED ARE GUILTY OF OFFENCE CHARGED

UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860.

It is humbly submitted before the Hon’ble court that accused are guilty of the offence of
murder read with Section 34. In the present case, both the actus reus i.e., commissio
commission of the
act and mens rea i.e. guilty mind is present. The accused with the intention of demand of
dowry poured kerosene on the deceased and set her ablaze resulting in her death. All this
along with the conduct of the accused and the dying declaration of deceased proves that
accused is guilty of alleged offences.

CONTENTION 3: THE CIRCUMSTANCES OF THE CASE ARE OF CONCLUSIVE

NATURE AND BEYOND REASONABLE DOUBT.

It is humbly submitted before the Hon’ble Court that the circumstantial evidence in the
instant matter shows that within all human probability and beyond reasonable doubt that the
act has been done by the accused. Further, the burden of proving the fact lies upon the
accused & also the circumstances in which the deceased met her death.

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ARGUMENTS ADVANCED

CONTENTION 1: THAT THE ACCUSED ARE GUILTY FOR THE OFFENCE UNDER SECTION 498A,
304 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860.

“An impotent beggar believes in begging for money and a potent beggar believes in begging
for dowry”1

1. It is humbly submitted before the Hon’ble Court that the accused, Amit Kumar and Sunita are
guilty of offences of dowry death and cruelty under Section 304B, Section 498A and Section
4 of Dowry Prohibition Act, 1961 read with Section 34 of Indian Penal Code, 1860.

THAT THE ACCUSED ARE GUILTY OF OFFENCE U/S 498A IPC.

2. It is humbly submitted that all the accused are guilty of the offence of cruelty for dowry
under Section 498A of the Indian Penal Code, 1860 which states, “Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years & shall also be
liable to fine.”2
3. Further, in order to prove the offence under Section 498A the following conditions must be
fulfilled:
a. The women must be married
b. She must be subjected to cruelty or harassment &
c. Such cruelty or harassment must have been shown either by husband of the woman or by
the relative of her husband.3
4. In the light of the facts of the case, the deceased, Radha had been married to the accused,
Amit Kumar since 20124 and she had been subjected to cruelty by her husband which is
evident as the drinking of the husband coupled with beating, constant abuses and taunts
amount to cruelty within the meaning of Section 498 which refers to
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or

1 Sir P.S. Jagadeesh Kumar.

2 The Indian Penal Code, 1860 (Act 45 of 1860), s.498A.
3 U. Suvetha v. State, AIR 2009 SC (Suppl.) 1451.
4 Moot Proposition, ¶ 2.

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(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or
is on account of failure by her or any person related to her to meet such demand.
All this affected her mental health so adversely that she was prompted to slit her own wrist.5
5. Further, she was also subject to mental harassment as the relationship between the deceased
& her husband continued to be estranged which is evident as Amit kept on demanding
money from his in laws from time to time6 along with the burden to look after the family
and their girl child. Thereby, completely meeting all the essentials fair and square without a
shadow of doubt.
Orissa 7 that
6. Also, the Supreme Court held in the case of Gananth Pattanaik v. State of Orissa,
cruelty for the purpose of offence need not be physical. Even mental torture or abnormal
behavior may amount to cruelty & harassment in a given case.
7. Similarly in the instant case, along with physical fights, Radha was also m
mentally
entally tortured
when her husband, the accused vented out his frustration on her in a drunken state.
Moreover, she was even extremely hurt when her husband blamed her for being from a
family of beggars.8 Consequently, she was pushed towards depression and mood swings9
and even was pushed to the extent of leaving her matrimonial house.10
8. In Satya Narayan Tiwari v. State of UP,11 the deceased had been subjected to cruelty by her
husband & mother-in-law
law over the demand of Maruti Car as dowry and persistently pressed
p
by them after about six months of the marriage & continue till her death. The accused in
this case was convicted under section 498A & 304B IPC.

9. In addition to this, the accused was also subjected to domestic violence as per Section 3 of
The Protection
on of Women from Domestic Violence Act, 2005.
2005. This Section covers both (i)
physical abuse and (ii) verbal and emotional abuse
10. In the instant case, Radha was a victim of domestic violence in the sense of physical abuse
which is evident when on many occasions, fights turned physical. She was alsoverbally and
emotionally abused after being blamed for coming from a family of beggars12

5 Moot Proposition, ¶ 4.
6 Moot Proposition, ¶3.
7 (2002) 2SCC 619.
8 Moot Proposition, ¶ 4.
9 Moot Proposition, ¶ 6.
10 Moot Proposition, ¶ 5.
11 2011 Cr.LJ 445.
12 Moot Proposition, ¶ 4.

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 PAGE NO. 3

which hurt her emotionally so much that she tried to slit her own wrist and remained
distressed.

11. Hence, the accused are guilty of offence under Section 498A of Indian Penal Code, 1860.

THAT THE ACCUSED ARE GUILTY OF OFFENCE U/S 304B, IPC.

12. It is humbly submitted before the Hon’ble Court that the accused is guilty of offences under
Section 4 of the Dowry Prohibition Act, 1961 and Section 304B of thee Indian Penal Code,
1860. In the case of Inder Raj Malik v. Sunita Malik,13 it was held by the Hon’ble Delhi
High Court that a person can be convicted both under Section 4 of Dowry Prohibition Act,
1961 as well as under Section 498A, Indian Penal Code, 1860 because it does not create
any situation for double jeopardy.
13. Further, Section 4 of the Dowry Prohibition Act, 196114 states, “If
If any person demands,
directly or indirectly, from the parents or other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a
term which shall not be less than six months, but which may extend to two years and with
fine which may extend to ten thousand rupees.”
14. The term “Dowry” as per Section 2 of the Dowry Prohibition Act, 196115 means any
property or valuable security given or agreed to be given either directly or indirectly
indirectly- (a) by
one party to a marriage to the other party to the marriage; or (b) by the parent of either party
to a marriage or by any other person, to either party to the marriage or to any other person
at or before or any time after the marriage. In addition to this, Dowry also refers to the
property which a woman brings to her husband in marriage, or the effects which the wife
brings to the husband to support the expenses of marriage.16
15. In S. Gopal Reddy v. State of Andhra Pradesh,17 the Supreme Court was of the opinion that
the phrase demand for ‘dowry’ was to be flexibly interpreted. In this case, this meant that
any ‘demand’ of money, property
perty or valuable security made from the bride or her parents or
other relatives by the bridegroom or his parents or other relatives or vice
vice-versa
versa would fall
within the ambit of ‘dowry’ under the Act.
16. In the instant case, the factum clearly elucidates that Radha did not receive proper treatment
from her husband. Amit was continuously making dowry demands from time to

13 (1986) Cr.LJ 1510.

14 The Dowry Prohibition Act, 1961 (Act 28 of 1961), s.4.
15 The Dowry Prohibition Act, 1961 (Act 28 of 1961), s.2.
16 Dowry, Black’s Law Dictionary,581, (8th ed. 2004.
17 1996 SCC (4) 596.

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time from his in laws.18 After a lot of pressurizing a dowry of Rs 20 lakh was given in the
disguise of loan which becomes quite clear when he refused to return the money, thus
asking for the dowry indirectly which comes under the ambit of Section 2 of the Dowry
Prohibition Act,1961.
17. Further, in State of A.P. v.. Raj Gopal Asawa,19 it was held that it is not always necessary
that there be any agreement for dowry even demand of dowry on other ingredients being
satisfied is punishable. Also, in Pawan Kumar v. State of Haryana,20 it was held that when
persistent demands for TV and scooter are made from the bride after marriage or from her
parents, it would constitute to be in connection with the marriage and it would be a case of
demand of dowry within the meaning of Section 304B, IPC.
18. In addition, in Kamlesh Prabhudas Tanna v. State of Gujarat,21 persistent demands were
made for money from the bride
de or her parents after the marriage, for the purpose of
business, it was held that it would constitute to be in connection with the marriage and it
would be a case of demand of dowry made by the accused persons as the constant demand
could be said to have fallen within the ambit of “dowry” since it had touched the roots of
the marriage, since not fulfilling the demand meant the destruction of the marital relations
and ill treatment of the deceased.
19. Similarly, in the light of the facts of the case, the accused,
accused, Amit is guilty of the offence of
demanding dowry as he used to constantly demand money from his in laws from time to
time and even demanded a loan from his in laws in 2015. Hence, it would constitute to be
in connection with the marriage and it would be a case of demand of dowry.22
20. Moreover, in the absence of there being any specific purpose for demanding the loan of 50
lac rupees there is a presumption that this amounts to dowry as was held in the case of
Jivendra Kumar v. Jaidrath Singh & Ors,23 it was
as held that, any money or property or
valuable security demanded by any of the persons mentioned in Section 2 of the Dowry
Prohibition Act, at or before or at any time after the marriage which is reasonably
connected to the death of a married woman, would necessarily be in connection with or in
relation to the marriage unless, the facts of a given case clearly and unequivocally point
otherwise."

18 Moot Proposition, ¶ 3.
19 AIR 2004 SC 1993.
20 AIR 1998 SC 958.
21 (2013) 15 SCC(Cri) 688.
22 Moot Proposition, ¶ 3.
23 (2000) 3 SCC 154.

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21. Further, in Ashok Kumar v. State of Haryana,24 the Supreme Court confirmed that where a
husband has demanded a specific sum from his father
father-in-law
law and on it not being giv
given, has
tortured and harassed his wife, this will qualify as a demand for 'dowry’.
22. In the instant case the accused, Amit demanded Rs 50 lakh as dowry but on receiving only
Rs 20 lakh after coercing the in-laws of the deceased, Amit subjected Radha to taunting
and harassment for not having brought sufficient dowry.
23. Also, the accused are guilty of the offence of Dowry Death under Section 304B of the
Indian Penal Code, 186025 which states, “Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal circumstances within seven
years of her marriage & it is shown that soon before her death she was subjected to cruelty
or harassment by her husband or any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called “dowry death”, and such husband or relative
shall be deemed to have caused her death.”
24. In order to prove the guilt of the defense under Section 304B IPC, the prosecution has to
prove following ingredients:

1. The death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances.26

2. Such death should have occurred within 7 years of her marriage.27

3. She must have been subjected to cruelty or harassment by her husband or any relative of
her husband.

4. Such cruelty or harassment should be for or in connection with demand for dowry.28

25. In the instant case, all the ingredients of dowry death have been met fair and square as the
death of the deceased happened in other than under normal circumstances where she was
burnt to death. Also, such death occurred within the seven year of her marriage. The
deceased was also subjected to cruelty & harassment by her husband. And such cruelty was
in connection of the demand of dowry of money. Hence the accused is guilty of the offence
of Dowry death.

24 (2010) 12 SCC 350.

25 The Indian Penal Code, 1860 (Act 45 of 1860), s.304B.
26 Akula Ravinder v. State of AP, AIR 1991 SC 1142.
27 Arbind Kumar Ambasta v. State of Jharkhand, 2002 Cr. LJ 3973(Jhar).
28 Kashmir Kaur v. State of Punjab AIR 2013 SC 1039; Dasrath v. State of M.P, AIR 2010 SC 2592; Pawan
Kumar v. State of Haryana, (1998) 3 SCC 309; Amit Bajaj v. State of MP, (2001) 9 SCC 417.

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 PAGE NO. 6

26. Further, in the case of, the Hon

Hon’ble
’ble court held that that the expression "soon" is not to be
construed as synonymous with "immediate". Days or months are not what is to be seen.
What must be borne in mind is that the word "soon" does not mean "immediate". A fair and
pragmatic construction
n keeping in mind the great social evil that has led to the enactment of
section 304B would make it clear that the expression is a relative expression. Time lags may
differ from case to case. All that is necessary is that the demand for dowry should not be
stale but should be the continuing cause for the death of the married woman under section
304B."

27. In the light of the facts of the case, the extent of cruelty suffered by the deceased cannot be
weighed down by a period of a few months, since she was constantly subjected to this evil
right from the moment, she gave birth to their first child together.29 Her husband used
harass her, assault her and even used to vent out his frustration on her due to the financial
crisis and the lack of dowry from his wife, as a consequence of which she became
depressed and distressed.30

28. Further, Section 113 B of the Indian Evidence Act, 1972 deals with ‘Presumption as to
Dowry Death’ and reads as follows, “When the question is whether a person has committed
dowry death of a woman
man and it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in connection with, any demand
for dowry, the court shall presume that such person had caused the Dowry Death.”

29. Also, in Nand Kishore v. State of Maharashtra,31 it was held that there must be nexus
between cruelty & harassment to raise the presumption under Section 113B of the evidence
Act. In the case of Kaliyaperumal v. State of T.N,32 it was held that the presumption under
Section 113B shall be raised only on the proof of following essentials:

1. When the accused is tried for the offence under section 304B.

2. The woman has subjected to cruelty or harassment by her husband or his relatives.

3. Such cruelty or harassment was for in connection with any demand for dowry.

4. Such cruelty or harassment was taking place before her death.33

29 Moot Proposition, ¶ 4.
30 Moot Proposition, ¶ 6.
31 1995 Cr.LJ 3706.
32 AIR 2003 SC 3828.
33 Keshab Chandra Panda v. State of Orissa
Orissa, 1995 Cr.LJ 174 (Ori); M. Srinivasulu v. State of AP,
AP 2007 (12)
SCC 443; Kulwant Singh v. State of Punjab
Punjab, (2013) 4 SCC 177; Tarsem Singh v. State of Punjab, (2008) 16 SCC
155; Ram Badan Sharma v. State of Bihar (2006) 10 SCC 115.

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 PAGE NO. 7

30. In the instant case, the accused are being tried for the offence of dowry death as the
deceased was subjected to cruelty by her husband for the demand of dowry. Such cruelty
ended up burning the deceased girl and ultimately the death of the deceased. Further,
Furth the
presumption can also be drawn from drinking & beating habits of the husband.

31. Also, the burden of proof in respect of above Sections 3, 4 of the Dowry Prohibition Act,
A of the Dowry Prohibition Act, 1961, which reads as foll
1961 is under Section 8-A follows,
“Where any person is prosecuted for taking or abetting the taking of any dowry under
Section 3, or the demanding of dowry under Section 4, the burden of proving that he had not
committed an offence under those sections shall be on him.”

32. Similarly, in the case of Shanti Behal v. State (Delhi Admin.),34 the husband & the mother-
mother in-
law of the deceased were charged with harassment, cruelty and maltreatment & demand of
Dowry where the mother-in-law
law poured kerosene on the deceased’s body and set her on fire.
The victim’s dying declaration was corroborated by medical & other evidence and the
Hon’ble Delhi High Court upheld the sentence under section 302 & 498A.

Others,35 the
33. In addition to this, in Soni Devrajbhai Babubhai v. State of Gujarat and Others
Hon’ble Supreme Court observed that Section 304B of the IPC and the cognate provisions
are meant for eradication of the social evil of dowry, which has been the bane of Indian
society and continues unabated in spite of emancipation of women and the women's
liberalization movement. Also, in Nathu v. State of UP,36 the Allahabad High Court
observed that, dowry death is worse than murder.
34. In the case at hand, all the ingredients of the above - mentioned crimes are complete &
hence, all the accused are guilty of the offence charged under Section 4 of Dowry
Prohibition Act, 1961 and Section 304B of the Indian Penal Code, 1860.

THAT THE ACCUSED SHALL BE JOINTLY HELD GUILTY U/S 34, IPC.

35. The accused is also guilty under Section 34 of the Indian Penal Code, 1860 which elu
elucidates
that when a criminal act is done by several persons, in furtherance of the common intention
of all, each of such persons is liable for that act in the same manner as if it were done by
him alone.

36. This section is intended to meet cases in which it m

may
ay be difficult to distinguish between the
acts of the individual members of a party or to prove what part was exactly taken by each of

34 1994 Cr.LJ 2043.

35 1991 AIR 2173.
36 AIR 1956 SC 56.

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 PAGE NO. 8

them in furtherance of the common intention of all.37 To constitute common intention, it is

necessary that the intention of each one of them was known to the rest of them & was
shared by them.38

37. It is also pertinent to note that section 34 is the rule of evidence. When a young wife was
burnt to death by her accused husband & the in
in-laws
laws because they were unhappy over the
insufficient dowry, they were held liable to be convicted under Section 302 read with
Section 34.39

38. Further, in Jai Bhagwan v. State of Haryana,40 it was held that to apply Section 34, apart
from the fact that there should be two or more accused, two factors must be established: (i)
common intention, and (ii) participation of accused in the commission of an offence.

39. Similarly, in the present case, both the husband and the mother had the common intention
i.e., dowry and this can be perceived from the facts that the relation between the accused
and the deceased was not amicable due to some difference
differencess on various occasions. Further,
since the deceased was residing in her matrimonial house, it is safe to believe that the co
accused, her mother-in-law, was well aware about the cruelty and harassment meted out to
the deceased in demand of dowry. Moreover, mother in law's participation and involvement
in the burning of the deceased and the dying declaration of the deceased clearly lays down
the common intention of both the accused.

40. Hence, the accused are guilty of offences under Section 498A, 304B read with Section 34 of
the Indian Penal Code, 1860.

CONTENTION 2: THAT THE ACCUSED ARE GUILTY OF OFFENCE UNDER SECTION 302 READ
WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860.

41. It is most humbly submitted before this Hon’ble Court that the accused are guilty for
committing the offence of murder under Section 302 of the Indian Penal Code, 1860. In
Muthu Kutty v. State of T.N,41 it was held that a case where a charge alleging dowry death is
framed, a charge under Section 302 can also be framed. Further, In Rajbir v. State of
Haryana,42 a two judge Bench of the Hon’ble Supreme Court directed all trial courts to

37 Sachin Jana v. State of West Bengal (2008) 3 SCC 390.

38 Ratanlal & Dhirajlal, Indian Penal Code, 34th Ed. Lexis Nexis, Section 34.
39 State of UP v. Ashok Kumar Srivastava
vastava, AIR 1992 SC 840.
40 AIR 1999 SC 1083; Surender Chauhan v. State of M.P, (2000) 4 SCC 110.
41 (2005) 9 SCC 113.
42 AIR 2011 SC 568.

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 PAGE NO. 9

ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be
imposed in such heinous & barbaric crimes against woman.

42. Section 302 prescribes the punishment for committing murder. In order to bring a successful
conviction under this charge,, it is pertinent to refer to Section 300, Indian Penal Code which
elucidates the essentials of murder. According to Section 300, Indian Penal Code “A person
is guilty of murder if he intentionally causes the death of a person or causes such bodily
injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in the ordinary course of nature results into death or commits an act so dangerous that
it must, in all probability cause death of that person”.43
43. The prosecution humbly
ly contends that both, the actus reus & the mens rea of the crime are
established in the instant matter.

THAT MENS REA OF MURDER IS ESTABLISHED.

44. Mens rea is considered as guilty intention which is proved or inferred from the acts of the
accused. It is submitted
mitted that the intention to kill is established in light of clear
clear-cut
cut motive &
preparation of the accused.

45. It is presumed that every sane person intends the result that his action normally produces &
if a person hits another on a vulnerable part of the body,
body, & death occurs as a result, the
intention of the accused can be no other than to take the life of the victim & the offence
committed amounts to murder.44 Moreover, the intention to kill is not required in every case,
mere knowledge that the natural & probable consequences of an act would be death will
suffice for a conviction under Section 302 of the Indian Penal Code.
46. It is pertinent to note in the present case that the intention to kill is quite clear i.e., dowry. It
has been proved above that the ac
accused
cused often demanded money in form of dowry and due to
the absence of or the insufficiency of the same, the accused ill-treated
ill treated Radha which forms the
intention to kill.
47. Further the kerosene canister found in the accused’s house clearly points the finger towards
to
the preparation of the crime and accused being well aware about the natural & probable
consequences of their act of pouring kerosene and setting ablaze a person, fulfilling all the
conditions of mens rea.

THAT ACTUS REUS OF MURDER IS ESTABLISHED.

43Indian Penal Code, 1860 (Act 45 of 1860), s.300.

44 Public Prosecutor v. Somasundaram,
Somasundaram AIR 1959 Mad 323.

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 PAGE NO. 10

crime. It is any wrongful act.45 Thus, in a case of

48. Actus reus is the physical element of the cr
murder, actus reus would be the physical conduct of the accused that causes death of the
victim. In the instant case, pouring kerosene and lighting the matchstick in order to burn the
deceased, Radha amountss to the commission of the wrongful act and further the actus reus
can also be established by the way of conduct of the accused46 & the dying declaration.
49. A fact can be proved by the conduct of a party & by surrounding circumstances. Statements
accompanying or explaining conduct are also relevant as part of the conduct itself. Ill
conduct of the accused has already been proved under Section 498A and 304B of the Indian
Penal Code, 1860. Also, it is important to note that the accused i.e., her mother-in-law,
mother law, Sunita,
was present at the place of occurrence, which can be corroborated by the testimony of
various witnesses(neighbors). The conduct of being ‘last seen’ together with the deceased is
relevant47 and pivotal theory. It is the manifestation of the concept of opportunity and it may
be presumed because of the opportunity that accused is guilty of the said crime.
50. It is humbly submitted before this Hon’ble Court that the dying declaration is reliable &
requires no corroboration for conviction.48 Section 32 of Indian Evidence Act, 1872 deals
with the cases related to that person who is dead or who cannot be found and according to
Section 32(1) there must be a statement made by a person about the cause of his death, for
its admissibility & it need not disclose all surrounding circumstances.49Also, a mere
omission, in a dying declaration, of the motive of the accused to kill the deceased does not
affect its veracity, insofar as it relates to the cause of death50.
51. Word “Dying Declaration” means a statement written or verbal of relevant facts made by a
person, who is dead.51 It is the statement of a person who had died explaining the
circumstances of his death. This is based on the maxim ‘nemo moriturus presumuntur
mentri’ i.e., a man will not meet his maker with lie on his mouth. Our Indian law recognizes
this fact that ‘a dying man seldom lies’ or ‘truth sits upon the lips of a dying man.52

52. Dying declaration recorded on the basis of nods and gestures is not only admissible but
possesses evidentiary value, the extent of which shall depend upon who recorded the
statement, what is his educational attainment, what gestures and nods were made, what were

45 Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd Ed. 2006).

46 Indian Evidence Act, 1872 (Act 1 of 1872), s.8.
47 Kansa Behra v. State of Orissa, AIR1987 SC 1507.
48 Waikhom Yaima Singh v. State of Manipur
Manipur, 2011 Cr LJ 2673.
49 Atbir v.Govt. (NCT of Delhi), [2010] 9 SCC 1.
50 K. Ramachandra Reddy v. Public Prosecutor
Prosecutor, (1976) 3 SCC 618.
51 Indian Evidence Act, 1872 (Act 1 of 1872), s.32.
52 Satbir Singh. v. State of Haryana (2005) 12 SCC 72.

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 PAGE NO. 11

the questions asked whether they are simple or complicated - and how effective or
understandable the nods and gestures were.53
53. In the present case, on the morning of January 5, when the sub inspector of police, Mr.
Sajjan Singh inquired about the cause of the burns, the deceased, Radha after failing to speak
pointed her finger twice towards the accused pr
present
esent there, Sunita and Amit, before
succumbing to her injuries. It implies it was a dying declaration which clearly shows that
crime has been committed by all the accused hence, it is admissible in the court as per
Section 32 of the Indian Evidence Act, 1872.
54. Further, in the case of State of Punjab v. Fauja Singh,54 it was held that if some act is done
by the accused person in furtherance of common intention of his co-accused,
co accused, he is equally
liable like his co-accused.
accused. Thus, as per Section 34 as proved abov
abovee the husband having the
common intention will be accused for the offence of murder.
55. Hence, meeting all the essentials, it is proved beyond a shadow of doubt that all the accused
are guilty of offence under Section 300, Indian Penal Code, 1860 and thus, a charge should
be brought against them under Section 302, Indian Penal Code, 1860 which states “whoever
commits murder shall be punished with death, or 1[imprisonment for life], and shall also be
liable to fine.”

CONTENTION 3: THE CIRCUMSTANCES OF THE CASE ARE OF CONCLUSIVE NATURE AND IS

BEYOND REASONABLE DOUBT.

56. Bearing in mind that it is not for the prosecution to meet any & every hypothesis suggested
by the accused, howsoever extravagant & fanciful it might be,55 it is humbly submitted
before this Hon’ble Court that the circumstantial evidence in the instant matter shows that
within all human probability, the act must have been done by the accused.56
57. It is one of the established principles of law that a witness may lie the facts but not the
circumstances.57 Direct evidence is not necessary for proving the person behind the crime.
The guilt of a person can be proved by circumstantial evidence also.58 So far as this instant
case is concerned, even though there are no eye witnesses, it does not affect the case
because justice is sought on ardent principles of law.

53 Meesala Ramakrishan v. State of A.P.,

A.P. (1994) 4 SCC 182; Mukesh v. State For Nct Of Delhi & Ors (2017) 6
SCC 1.
54 (1997) 3 Cr LJ 170 (P&H).
55 State of UP v. Ashok Kumar Srivastava,
Srivastava AIR 1992 SC 840.
56 State of UP v. Randhir, AIR 1959 All 727.
57 Rameshbhai Mohanbhai Koli v. State of Gujarat (2011) 11 SCC 111.
58 Gagan Kanojia v. State of Punjab (2006) 13 SCC 516.

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58. In the instant case, on 04.01.2019, Sunita, Sunaina’s mother-in-law,

mother law, poured kerosene on the
body of her daughter in law and set her ablaze to kill her on account of Dowry. Therefore,
the presence of the accused at the place of occurrence was prove
provedd & the deceased was also
‘last seen’ in the company of accused by the neighbors. So, the overall circumstances
unerringly point towards the guilt of the accused.
59. In State of Punjab v. Amarjit Singh,59 it was held that where the prosecution proved that
there
re was a strong motive for the crime, that the deceased woman was last seen alive in the
company of the accused & that the death was unnatural & homicidal, it was held that the
burden to account for the circumstances of death was shifted to the person in w
whose
hose care the
woman met her death. He alone must be in possession of the knowledge of those
circumstances.
60. In Rajammal v. State of T.N.,60 in case of dowry death, the victim died due to manual
strangulation & the victim’s in
in-laws & husband’s brother alone were present in the house at
the time of her death. Their subsequent conduct was consistent only with their guilt. It was
held that the only possible inference was that they participated in the crime & the burden to
prove the contrary lay on them since it was within their special knowledge.

61. Where the dowry death occurred in the in-law’s place, the onus was laid on the inmates of
the house to explain the circumstances of the tragic end of the life of the married woman.61
If there was proof that the accused ill-treated his wife, his presence at the place of
occurrence was also proved. His wife was last seen in his company. The Court said that this
could be taken into consideration to convict him. Each & every circumstance was pointing
the finger of guilt towards the accused.62
62. A reasonable doubt must not be imaginary, trivial or merely possible doubt; but a fair doubt
based upon reason & common sense arising out of the evidence of the case.63 In the above
above-
mentioned facts it is clearly stated that the crime was committed by the accused & not by
the any other person. It is clearly establishing the chain of circumstantial evidence. There is
no doubt in this as to “may have committed or has committed”,64 the prosecution has
established this by legal, reliable & un
unimpeachable evidence for conviction to be sustained.
Also, in the present case there are no two interpretations possible.

59 989 Cr. L.J, (NOC) 13 (P&H).

60 1993 Cr.LJ 3029 (Mad.).
61 Kundala Bala Subranayam v. State of AP, 1993 Cr.LJ 1635.
62 State of Maharashtra v. Shivaji Anandrao
Anandrao, 2002 Cr.LJ 4198 (Bom).
63 Chhotanney v. State of Uttar Pradesh AIR 2009 SC 2013.
64 Brij Bhushan Sharma v. State of U.P., 2001 CriLJ 1384.

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PA NO. 13

63. Therefore, it is humbly submitted before this Hon’ble Court that the charge under Section
302, 304B, 498A read with section 34 of the Indian Penal Code, 1860 has been made out
due & all the accused must be convicted.

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 PAGE NO. XI

PRAYER FOR RELIEF

In light of the facts of the case, issues raised, arguments advanced and authorities cited, the
Counsels on behalf of the Prosecution humbly pray before the Hon’ble Sessions Court at
Srinagar to kindly adjudge and declare that: -

a) Amit Kumar and Sunita are guilty of offence u/s Section 498A IPC and shall be punished
with imprisonment for a term of three years & shall
s also be liable for a fine of Rs 15,000.

b) All Accused are guilty of offence u/s 304B IPC and Sections 3 and 6 of the Dowry
Prohibition Act and shall be punished with imprisonment for a period not less than 7
years and an amount of the value of dowry i.e., Rs. 20,00,000.

c) All Accused are guilty of offence u/s Section 302 of IPC and shall be punished with the
Life imprisonment and a fine of Rs. 1,00,000.

AND/OR

Pass any other order which the bench deems fit in the best interest of Justice, Equity and
Good
d Conscience, and for this act of kindness the Counsels on behalf of the Prosecution as in
duty bound shall forever pray.

All of which is respectfully submitted

SD/-
Counsels for Prosecution

MEMORIAL ON BEHALF OF THE PROSECUTION