3rd NATIONAL MOOT COURT,

2024

TEAM CODE: TC - 30

IN THE HIGH COURT OF UTTAR PRADESH

Appeal under Section 374(2) of the code of criminal procedure

In the matter of

MR. RAHUL KAPOOR....................................................APPELLANT

V.

The State of Uttar Pradesh.....................................................RESPONDANT

Most respectfully submitted before the Hon’ble High Court

MEMORANDUM ON THE BEHALF OF THE APPELLANT

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TABLE OF CONTENT

List of Abbreviations............................................................................3

Index of Authorities.............................................................................4

Statement of Jurisdiction.....................................................................5

Statement of Facts................................................................................6

Issues Raised….....................................................................................8

Summary of Arguments.......................................................................9

Arguments Advanced…........................................................................11

Prayer.....................................................................................................30

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LIST OF ABBREVIATION

ABBREVIATIONS EXPANSION

Sec. Section

¶ Paragraph

& And

AIR All India Reporter

SC Supreme Court

v. Verses

Cri.LJ Criminal law journal

Ors Others

IPC Indian Penal Code,1860

HC High Court

Hon’ble Honorable

CONSTI. Constitution

Acc According

p. Page No.

R.W.S. Read with Section

SCC Supreme Court Cases

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INDEX OF AUTHORITIES

1. Subash and others v. State of Karnatka.

2. State v. Hira Nand and others.
3. Rangammal v. Kuppuswami.
4. Padala Veera Reddy v. State of Andhra Pradesh.
5. Barender Kumar Ghosh v. King Emperor.
6. Rishi Deo Pandey v. State of Uttar Pradesh.
7. Wasim Khan v. State of Uttar Pradesh.
8. Ramdeo Kahar v. State of Bihar.

STATUTES REFERRED
1. The Code of Criminal Procedure,1973
2. Indian Penal Code,1980

BOOKS REFERRED

1. Code of criminal prosedure,1973- Ratan Lal & Dhiraj Lal, S.N. Mishra, M.P. Tandon.
2. Indian Penal Code,1860- K.D. Gaur, Ratan Lal & Dhiraj Lal

ONLINE SOURCE

1. SCC online

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2. Manupatra

STATEMENT OF JURISDICTION

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THE HON’BIE HIGH COURT EXERCISES JURISDICTION TO HEAR AND

ADJUDICATE OVER THE MATTER UNDER SECTION 374(2) OF THE CODE OF
CRIMINAL PROCEDURE.

STATEMENT OF FACTS

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Dr. Rahul and Akansha Kapoor aged 45 and 40, respectively along with their 15-year-old
daughter Sneha Kapoor and their domestic help Garvesh, reside in Kaveri apartments, flat no.
20, floor no. 3, Gandhi Nagar, Naharpur. At 6:15 am on 16th May 2008, housemaid Kamala Devi
rang the doorbell which awakened Akansha. Akansha noticed Garvesh was not at home and
opened the door for the maid. Rahul Kapoor woke up and noticed his bottle of whiskey polished
off along with two used glasses on their living room table. Rahul was surprised at this view for
only him and his wife knew about their concealed bar in the living room. It was also noticed by
Rahul that Sneha’s room was slightly opened. Upon entering Sneha’s bedroom, Akansha and
Rahul discovered that Sneha was lying dead on her bed at around 6:25 a.m. with blood stains all
over her body, bed, and pillow covers. The housemaid entered the room as well to Akansha
screaming “GARVESH KILLED MY DAUGHTER AND RAN AWAY”. By this time a huge
crowd had gathered into their apartment. The building watchman called the police, and they
reached the crime scene around 7:15 am. Parents accused Garvesh for their daughter’s murder
and police tried to pursue Garvesh and investigate the matter but they failed. Police while
investigating the house tried to reach the terrace but they were initially stopped by Rahul. The
parents used to lock Sneha’s room from outside every night before going to bed and kept the
keys on Akansha’s nightstand. Rahul was suspected by Sneha to be in an affair with his business
partner’s wife and Rahul was aware of her suspicion. Rahul also found Garvesh and Sneha in an
objectionable situation a few days before her murder. Later forensic team and police found
Garvesh dead on the terrace in a decomposed state while they were tracing the blood stains on
the stairs leading to the terrace. According to Kapoor's internet router, Rahul was active online
till 12:30 a.m. The police sent both bodies for post- mortem. The findings of the post- mortem
examination are:

 Both Sneha and Garvesh died between 1:30 and 2:30 a.m.
 They found injuries on their heads believed to be caused by a blunt U/V shaped
object resulting in their death.
 Blood stains found on Sneha’s pillow covers matched with Garvesh’s blood
 Doctors believed that her vagina had also been cleaned after her death.Based on the
forensic report, medical report and circumstantial evidence found at the crime scene,
the
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police suspected parents to be the prime suspects and the session court convicted
the Kapoor’s under section 302,325,34 of IPC.

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE THE HIGH

COURT?

It is submitted that the present appeal is maintainable before the hon’ble High Court under
section 374(2) of the code of criminal procedure, 1973. Section 374(2) of Crpc says about the
appeal from convictions.

ISSUE 2: WHETHER MR. RAHUL KAPOOR IS HELD LIABLE UNDER SECTION

302 AND 325 OF IPC OR NOT?

No, the offence of murder has not been made out against Mr. Rahul kapoor in light of
present facts. Acc. To Sec. 302 of IPC whoever commits murder shall be punished with
death, or imprisonment of life, and shall also be liable to fine. Mr. Rahul Kapoor was held
liable for murder of his daughter and his servant Garvesh.

ISSUE 3: WHETHER AKANSHA KAPOOR IS HELD LIABLE UNDER SECTION 34 OF

IPC OR NOT?

No, Akansha Kapoor is not held liable under section 34 of IPC. Because she was not involved
in the murder of her daughter and her servant Garvesh. The forensic reports tell us that she was
not associated with the murder, and she was not present on the crime scene of murder.

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ARGUMETS ADVANCED

ISSUE 1: WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE

THE HIGH COURT OR NOT?

It is submitted that the present appeal is maintainable before the hon’ble High Court under
section 374(2) of the code of criminal procedure, 1973.

Section 374 says about the appeal from convictions. It says that any person convicted on a
trial held by a session judge or an additional sessions judge or on a trial held by any other
court. In which a sentence of imprisonment for more than 7 years has been passed against
him or against any other person convicted at the same trial, may appeal to High Court. The
appellate court has power of summary dismissal but if the appeal raises arguable and
substantial point the High Court should give reasons for rejection of appeal. Under this
section an aggrieved person has right of appeal. The High Court, by giving its reasons and
opinion on arguable and substantial points raised in an appeal may, to a great extent, help
the Supreme Court in final disposal of appeals made under article 136 of the Constitution.
Appeal is an important right in all serious cases and therefore, no appeal should be rejected
summarily.

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In Subash and others v. The State of Karnatka 1, in this case court held that On a
comprehensive re-appreciation of the evidence and material placed on record, this Court is
of the firm opinion that the testimony of the eyewitnesses is wholly untrustworthy and
unbelievable. In criminal prosecution the standard of proof required for conviction is proof
beyond all reasonable doubts. We do not hesitate to hold that the evidence of PWs.12 and
13, as eyewitnesses to the murder as projected by them, is wholly unacceptable being
fraught with improbabilities, doubts and oddities, inconceivable with normal human
conduct or behaviour and, thus cannot be acted upon as the basis of conviction. The
testimonies of other witnesses, even if taken on their face value, fall short of the
requirement of proof of the charge beyond all reasonable doubt. 26. Consequently, the
appellants are entitled to the benefit of doubt. The contrary view taken by the trial Court is
against the weight of the evidence on record and the exposition of law attested by the
decisions cited herein above. 27. In the result, the appeal succeeds and is allowed. The
impugned judgment is set aside. As a consequence, the appellants are acquitted and ordered
to be set at liberty, if not required in connection with any other case.

1
( 22 APRIL 2022).

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ISSUE 2: WHETHER RAHUL KAPOOR IS LIABLE UNDER SECTION 302 OR

325 OF IPC OR NOT?

It is humbly submitted before the hon'ble High Court that Rahul Kapoor is not held liable
under section 302 and 325 of Indian Penal Code, 1860.which says about murder and
Grievous Hurt.

Murder is defined under section 300 of Indian Penal Code, 1860. Murder is act of
culpable homicide done Unintentionally.

The essential of murder are :-

Firstly – if the act by which the death is caused is done with intention of causing death, or-

Secondly- If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly- If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such bodily
injury as aforesaid.

Essentials of Murder and Burden of

Proof Mens Rea as essential in murder

One of the main characteristics of our legal system is that the individual’s liability to punishment
for crimes depends, among other things, on certain mental conditions. The absence of these
conditions, where they are required, negatives the liability.

It is humbly submitted that Mens Rea i.e. the mental element is commission of a crime essential

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to be seen. An act in order to be a crime must be committed with a guilty mind. No person
could

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be punished in a proceeding of criminal nature unless it is shown that he had a guilty mind. In the
present case the accused didn’t show any sign of mental intuition to commit murder hence the
accused is not guilty of murder.

Mens Rea means “Guilty Mind” or criminal intent; the capability of an individual to distinguish
between right and wrong. Mens Rea in general terms can be attributed to a blameworthy mental
condition. The absence of Mens Rea negatives the condition of crime. It is one of the essentials
of crime8. It can also be said to be the motive force behind the criminal fact. If the mind of
committing the act is innocent, then the said act won’t become crime.

The underlining principle of the doctrine of Mens Rea is manifested in Latin maxim Actus Non
Facitreum Nisi Mens Sit Rea. The mere commission of an act that amounts to crime is not
enough to constitute a crime there must be guilty mind behind it. Bishop, Joel Prentiss in his
commentary writes, “There can be no crime large or small, without an evil mind10”.

From the above authorities, the counsel humbly submits that Mens Rea is one of Rea towards
the commission of the crime, i.e. to end the life of the deceased. There are no relevant facts to
show the ill intention of the accused and circumstantial evidence are also silent with thus
respect. It is our humble submission that the charges of murder were wrongly framed on the
accused and accused should be free from the charges of murder.

Actus Reus as essential in murder

Actus Reus or the guilty act or omission in simple words it is the overt act or omission which
resulted in crime. This is one of the essential elements in the crime. It is manifestation of Mens
Rea. In order to constitute an offence under Sec. 302 IPC, two elements are necessary. First, the
intention or knowledge to commits murder, Mens Rea. Secondly, the actual act of trying to
commit murder, Actus Reus.

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It is humbly submitted that in the present case the accused was falsely charged under murder, as
the facts says that the accused was not near the deceased when the said act occurred, hence the
possibility of Actus Reus can be ruled out.

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In the State v. Hira Nand and Others2, it was held that in this case for committing the offence
under Sec. 308 IPC, the accused must have a mental element i.e. Mens Rea either active or
passive i.e. intention or knowledge and Actus Reus i.e. an act being done acc. to such Mens Rea
to carry the accused guilty under Sec. 308 IPC, the court must return a finding that the accused
was having requisite intention or knowledge.

Burden of proof

It is humbly submitted by the council that burden of proof rests upon the
prosecution. Prosecution must prove the guilt of accused beyond the reasonable
doubt

The rule given under Sec 101 of Indian Evidence Act, 1860 read as follows-

“Whoever desires any court to give judgment as to any legal right or liability dependent on the
existence of fact which he asserts, must prove that those facts exist. When the person is bound to
prove the existence of any fact, it is said that the burden of proof lies on that person.”

The Hon’ble Supreme Court in the case of Rangammal v. kuppuswami3

Sec 101 of the Indian Evidence Act, 1872 defines ‘burden of proof’ which clearly lays down
that whosoever desires any court to give judgment as to any legal right or law dependent on the
existence of facts which he asserts, must prove that those facts exist. When a person is bound to
prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the
Evidence Act has clearly laid down that the burden of proving fact always lies upon the person
who asserts.”4

2
3
(2001) 12 SCC 220.
4

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The underlining principle of the above Sec. lies in the maxim incumbit probatio qui dicit, non qui
negat that means the burden of proving a fact rest on the party who substantially asserts the
affirmative of the issue and not upon the party who denies it.

The burden of proving that the accused not only committed the criminal act, but further he did
so with a guilty mind, is necessarily to constitute the said crime charged is rests upon the
prosecution throughout the trail, it never shifts to the defense.

When only circumstantial evidence is used by prosecution, the honorable Supreme Court of

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India in the landmark case of Padala Veera Reddy v. Andhra Pradesh5, has postulated tests.
And all the circumstantial evidence must satisfy those tests. Tests are as follows.

1. The circumstantial from which an inference of guilt is sought to be drawn, must

be cogently and firmly established.

2. Those circumstances should be of a definite tendency unerringly pointing towards guilt

of the accused.

3. The circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was committed
by the accused and no one else.

4. The circumstantial evidence in sustain conviction must be complete and incapable

of explanation of any other hypothesis than that of the guilt of the accused and such
evidence should not only be consistence with the guilt of the accused but should be
inconsistence with his innocence.

5
(AIR 1990 SC 79, 1990 (1) UT 137 SC)

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ISSUE 3: WHETHER THE AKANKSHA KAPOOR IS LIABLE UNDER SECTION 34 OF
IPC or not?

It is submitted before the hon'ble court that Akansha kapoor is not held liable for offence
of common intention under section 34 of Indian Penal Code, 1860.

Section 34 says that acts done by several persons in furtherance of common intention. 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.

The ingredients of common intention are: -

1. A criminal act must be done by several persons.

2. There must be a common intention of all to commit that criminal act;
3. There must be participation of all in the commission of the offence in furtherance of
that common intention.

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In Barender Kumar Ghosh v. King Emperor6, the appellant was charged and convicted
under section 302 read with section 34, IPC with the murder of sub- postmaster. The
appellant's contention that he was the man outside the room, and note the man who fired the
fatal shot, and so not liable for murder, was rejected by the court. While refusing the
appellant’s claim, the Privy Council said that, even if the appellant did nothing as he stood
outside the door, it is to be remembered that in crimes as in other things, “they also serve who
only stand and wait”. Lord Sumner speaking through the court stated that:

6
(AIR 1925 PC 1).

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Section 34 deals with the doing of separate acts, similar to diverse, by several persons; if all are
done in furtherance of a common intention, each person is liable for the result of them all, as if
he had done them himself; for “that Act” in the latter part of the section must include the whole
section covered by a criminal act “in the first part because they refer to it.”

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In Rishi Deo Pandey v. State of Uttar Pradesh7, two accused A and B who were brothers, were
seen standing near the cot of the victim who was sleeping. A, armed with a weapon and B, with a
stick, when a hue and cry was raised the two ran together. The medical evidence showed that the
deceased died of an incised wound on the neck, which was necessarily fatal. The supreme court
held that the court of session was justified in concluding that B shared with A the common
intention to cause death and there was no reason to interfere with the conviction under sections
read with section 34, IPC.

In Wasim Khan v. State of Uttar Pradesh8, it was held that a single accused could also be
convicted by reason of the application of section 34, if it were established beyond doubt that
such an accused shared the common intention to commit the offence with some person other
than the one who was acquitted.

In the present case, three accused persons who had been jointly tried before a session court
were found guilty under section 302 read with section 34, IPC. On appeal, the High Court
acquitted two of them by giving them the benefit of doubt as to their identity, but it confirmed
the conviction of remaining accused because, after carefully considering the evidence, it was
satisfied that his identity was clearly established and that he had committed the offence jointly
with two other unidentified persons. Held, that there was no illegality in such a conviction.

In Ramdev Kahar v. State of Bihar9, the appellants (three in number) moved the Apex
Court against the verdict of Patna High Court confirming the sentence and conviction passed
by the trial court for murder of Mauji Yadav under section 302, IPC read with section 34,
IPC.

Dismissing the appeal, the Apex Court held that only because the accused did not find Patali and
instead committed the murder of Mauji Yadav by itself may not be sufficient to arrive at a
conclusion that they had no intention to commit any offence of causing murder. Furthermore,

7
(AIR 1955 SC 331).
8
(AIR 1956 SC 400).
9
(AIR 2009 SC 1803).

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PRAYER

Wherefore in the light of facts presented, issued raised, arguments advanced and authorities
cited, the counsel on the behalf of appellate before this hon’ble court pray that it may be pleased
to adjudge and declare that:
1. The appeal is maintainable before the High Court.
2. Mr. Rahul Kapoor is not liable for murder of his daughter and his servant Garvesh.
3. Ms. Akansha Kapoor is not held liable for the offence of common intention.

Also pass any order that hon’ble court may deem fit in the favor of the appellate to meet
the ends of equity, justice and good conscience.

For this act of Kindness, the appellate shall duty bound forever pray.

Counsel for Petitioner

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