IMS UNISON UNIVESITY, DEHRADUN

MOOT COURT EXERCISE II

IN THE HON’BLE HIGH COURT OF EREWHONE

IN THE MATTER OF –

Appeal No. 10 of 2019

THE STATE OF EREWHONE ...... APPELLANT

V.

ELIZABETH BROWN ...... RESPONDENT

Appeal No. 11 of 2019
THE STATE OF EREWHONE ...... APPELLANT
V.

ELIZABETH BROWN ...... RESPONDENT

Appeal No. 12 of 2019
ELIZABETH BROWN ...... APPELLANT
V.

THE STATE OF EREWHONE ...... RESPONDENT

Appeal No. 13 of 2019
ELIZABETH BROWN ...... APPELLANT
V.

THE STATE OF EREWHONE ...... RESPONDENT

Memorandum on Behalf of the Appellant

PALAK SRIVASTAVA (IUU18BBL012)

ANANYA TRIPATHI (IUU18BBL032)

NISHTHA KAJLA (IUU18BBL004)

(XTH SEMESTER)
 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS .................................................................................... 3

INDEX OF AUTHORITIES ......................................................................................... 4-6

STATEMENT OF JURISDICTION ........................................................................... 7

STATEMENT OF FACTS ............................................................................................ 8-10

STATEMENT OF ISSUES ........................................................................................... 11

SUMMARY OF ARGUMENTS ................................................................................. 12-13

ARGUMENTS ADVANCED ........................................................................................ 14-27

1. Whether the criminal proceeding against Elizabeth is vitiated and the exclusion of

Elizabeth’s fingerprints and her seized mobile phone from the evidence is lawful?

2. Whether Elizabeth is guilty of commiting theft ?

3. Whether there has been a supression of evidence by the prosecution?

4. Whether the conviction under Section 511 read with Section 380 of the EPC is
maintainable?

PRAYER .................................................................................................................. 28

2
 LIST OF ABBREVIATIONS

ABBREVIATIONS WORDS

& And

Acc. According

AIR All India Reporter

Anr Another

COE Constitution Of Erewhon

HC High Court
Hon’ble Honourable

Ors. Others

A Appellant

R Respondent

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

EEC Erewhon Evidence Code

V. Versus

FIR First Information Report

EPC Erewhon Penal Code

ECrPC Erewhon Criminal Procedure Code

3
 INDEX OF AUTHORITIES

LIST OF CASE

1. Sanchita Investment v. State [AIR 1981 Cal 157]

2. Khaliqan v. Emperor [AIR 1945 Oudh 170]
3. State of Gujarat v. Kishanbhai (2014) 5 SCC 108
4. Mithilesh Kumar Singh v. State of Rajasthan (2015) 9 SCC 795
5. State of Karnataka v. K. Yarappa Reddy 1999 (3) SCR 359
6. Major Gurjinder Singh v. State of Punjab (2011) 3 SCC 530
7. Silverthorne Lumber Co. v. United States 251 US 385
8. Nardone v. United Sates 308 US 338 (1939)
9. United States v. Grady 185 F 2d 273
10. Kurume v. The Queen [1954] UKPC 43
11. MagrajPatodia v. R.K Birla 1971 AIR 1295
12. AK Gopalan v. State of Madras [1950] S.C.R. 88
13. M P Sharma v, Satish Chandra [1954] S.C.R. 1077
14. State of Kerala v. Alasserry Mohammed AIR 1978 SC 933
15. Jai Prakash v. State of Uttar Pradesh 2019 SCC Online SC 1525
16. Bharama Parasram v. State of Karnataka (2014)14 SCC 431
17. State of U.P. v. Sunil 2017 SCC 520
18. Selvi v. State of Karnataka (2010) 7 SCC 263
19. Michael Cooper v. National Crime Agency (2019) EWCA Civ 16
20. Bhinka v. Charan Singh 1959 AIR 960
21. Parkash Rai v. J.N. Dhar AIR 1977 Delhi 7
22. K. Balakrishnan v. S. Dhanasekar 2018(2) CTC 859
23. Cooper v. Wandsworth Board of Works (1863) 143 ER 414
24. State Board of Secondary and Higher Secondary Education Maharashtra v. K.S. Gandhi
(1991) 2 SCC 716
25. K.N.Mehra v. State of Rajasthan AIR 1957 Sc 369
26. Pyarelal Bhargava v. State of Rajasthan AIR 1963 Sc 1094
4
 27. Haricharan Kurmi & Anr. v. State of Bihar AIR 1964 SC 1184
28. Unnikrishnan v. The State by Inspector of Police Cr. Appeal No. 277 of 2011
29. Anwar P.V. v. P.K. Basheer (2014) 10 SCC 473
30. Bhuwan and Sonu v. State of UP Criminal Appeal No. 7054 of 2006
31. Surendra Krishna v. MirzaMobamed Syed Ali AIR 1936 PC 15
32. Patel Manilal Chhaganlal v. The Municipal Corporation Surat AIR 1978 Guj. 193
33. Krishan Gopal Bajpai v. State of UP Cr. Appeal No. 615 of 1998
34. State of Haryana v. Mehal Singh 1978 SCC Online P&H 117
35. Babulal Choukhani v. Western India Theatres Ltd. AIR1957 Cal 709
36. James Giles v. State of Maryland 386 US 66, 87, S.Ct. 793
37. Kappinaiah v. Emperor AIR 1931 Mad 233
38. Kashmira Singh v. State 1965 JK 37
39. Yusuf Ali v. State AIR 1968 SC 147
40. Nitin v. Rekha 2017 SCC Online Bom 112
41. Royston Victor Saldanha v. State of Maharashtra 2018 SCC Online Bom 13263
42. Ramesh v. State of UP Cr. Appeal No. 524 of 2003
43. Vijayee Singh v. State of UP SC 1990 (3) SCC 190
44. Dsndi V. Deka v. State of Assam (1982) Cr Lj 188 (Gau)(NOC)
45. Bidyadhar v. Shyam Sundar (1971) 1 Cut WR 205
46. Ram Kbal 1972 CrLJ 584 (SC)
47. Chandi Kumar v. Abanidhar Roy AIR 1965 SC 585
48. Nagappa (1890) 15 Bom 344
49. Asst. Commissioner v. M/s. Shukla & Brothers 2010 AIR SCW 3277
50. Commissioner of Income Tax v. Surendra Singh Pahwa AIR 1995 All. 259
51. S.N. Mukherjee v. Union (2012) 4 SCC 407
52. M/S Seas Goa Ltd. v. State of Goa 2013 SCC Online NGT 27

STATUTES

1. Constitution of Erewhon
2. Erewhon Criminal Procedure Code, 1973
3. Erewhon Penal Code, 1860

5
 4. Erewhon Evidence Code, 1973

OTHER COMPETENT AUTHORITIES

1. Just. M. Monir, Law of Evidence (Universal Law Publication Co., 14" edn. 2006).
2. Ratanlal & Dhirajlal, The Code of Criminal Procedure, (20" edn. 2012).
3. M.P Jain, Indian Constitutional Law (8" edn. 2018).

6
 STATEMENT OF JURISDICTTION

The Appellant humbly submits to the jurisdiction of the Hon’ble High Court of Erewhon under
Sec. 49 of the Erewhon Penal Code-

1. Appeal No. 10 of 2019: State's appeal against pre-trial ruling.

2. Appeal No. 11 of 2019: State's appeal against acquittal on Section 380 EPC.
3. Appeal No. 12 of 2019: Elizabeth's appeal against pre-trial ruling.
4. Appeal No. 13 of 2019: Elizabeth's appeal against conviction under Section 511 read
with 380 of the EPC.

The present memorandum sets forth the facts, contentions and arguments.

7
 SATEMENT OF FACTS

BACKGROUND

Diana White and Elizabeth Brown joined the offices of Brown, Fitch & Gump (BFG) in the
summer of 2018. The firm was a leading publishing house in the city-state of Erewhon, and ran
numerous dailies and magazines in English. Elizabeth was the daughter of Jack Brown, a
founding partner in the firm, and was joining after completing her journalism degree. Diana was
her classmate and had landed the job thanks to a word by Elizabeth.

The strategy team hoped Elizabeth could help provide new business ideas. They had pooled in
developing a "BFG Reader" App, to make the firm's content available on a user-friendly
platform and get new subscriptions with exclusive content for members. Elizabeth had been
trying her best to come up with new directions to experiment with but wasn't able to convince
the Team on the viability any of her ideas.

Diana was a copy-editor in one of BFG's fortnightly magazines, The Voice, and thus had no
idea about the Strategy Team's work. By May 2019, she had developed content to publish
pseudonymously with a rival publishing house which included a series on law and cinema, a set
of vignettes based on her experiences as a member of the LGBTQ community, and reviewing
obscure Nordic and Scottish crime dramas. Diana had kept this a secret as she feared it would
jeopardize her job.

Elizabeth did not tell Diana anything about the BFG Reader App when she called her on May
19 to meet. Diana invited her over for dinner at her house the same evening. She hinted in her
texts to Elizabeth that she had some things to discuss with her too.

INCIDENT

At Diana's house, Elizabeth came across a stack of papers with the top page marked "vignettes"
with a post-it. After tea, Elizabeth went back to the room on the pretext of going to the
bathroom. Diana went to help her friend as she hadn't told Elizabeth where the bathroom was

8
and she saw her peering over the papers with a phone. Startled, Elizabeth made some excuse
and went off to the bathroom that was three doors down.

On June 1, 2019 a beta version of the BFG Reader App was released on all platforms. One of
the most well received aspects was a series of vignettes on the App that were written from the
perspective of an LGBTQ woman dealing with life in Erewhon. These were published under
Elizabeth's name.

On 1st June, after seeing the App. Diana was shocked and went to meet her friend Max, an
inspector in the Erewhon police. On his instructions, Diana filed a complaint for theft against
Elizabeth and BFG.

AFTERMATH

On 2nd June, The investigating team searched the Elizabeth's house to find out if there were
copies of Diana's papers and seize her phone and other digital devices. No prior warrant was
given as there was a possibility of Elizabeth destroying evidence on her phone and computers.

Elizabeth told the police that she owned one mobile phone and one laptop and handed both
devices over which were locked. The police didn’t found any copies of Diana's writing, or any
other incriminating writings for that matter. BFG offices were raided by the police and searched
only Elizabeth's office but found no papers there either. The police seized one desktop computer,
which was also locked by a password.

On 15th August, 2019 the report by the Forensic cyber expert stated that (i) the devices seized
from Elizabeth's house were registered in her name, while the desktop seized from BFG offices
was not; (ii) all devices were locked and required passwords / biometric information for access;
(iii) the camera could be used without unlocking the phone and provided a thumbnail depiction
of the last picture taken.

On August 30 2019, Elizabeth was called in for questioning. She admitted that she went to
Diana's house on May 19, 2019 and saw some printouts there. But she denied that she made any
copies of any writings by Diana or other persons. She also refused to give passwords for any of
the digital devices seized from her home and office.

On August 31, she was told to give her fingerprints on a scanning pad that recorded them.The
police used these fingerprints to map them on to dummy fingers and then used them to unlock
the digital devices. They found photographs and some printouts handed over & seized from
Diana, who confirmed that these pictures had been taken by Elizabeth without her consent.

9
The police also accessed Elizabeth's messages and saw her chat history with Diana for the day of
the incident. The messages revealed a somewhat different story and suggested that not only had
Diana willingly told Elizabeth about her stories, but had later thanked Elizabeth for reading them
as well.

On September 7, 2019 the prosecutor's filed a case against Elizabeth in the District Court of
Erewhon. She was prosecuted under Section 380 of the Erewhon Penal Code (EPC) — punishing
Theft in a Dwelling House — and Section 411 — punishing the receipt or retention of stolen
property. The court issued a summons to Elizabeth, asking her to appear on September 9 for a
pre-trial hearing.

On September 9, the court heard arguments on the admissibility of the phone, and printouts
obtained from it in evidence. It agreed with Elizabeth's counsel that not only was the search
illegal, but also that her client had been illegally coerced into giving fingerprints. Since the
phone was accessed using these fingerprints.

At the same time, the court was less convinced by the argument that the prosecution had to file a
copy of the messages exchanged between Elizabeth and Diana that were found on the former's
phone, which messages had not been filed as part of the initial case record. The prosecutor
invoked Sections 173 and 207 of the Erewhon Criminal Procedure Code, which required the
prosecution to file.

The pre-trial court passed the following order: (i) Elizabeth's fingerprints and all derivative
evidence were excluded from evidence; (ii) The seizure was not bad for want of warrant (iii)
Since the text messages had not been relied upon by the prosecutor, the same were not part of the
record and could not be referred to during trial. The case was posted before a different judge for
trial on October 15.

After a short trial, the Court found that the prosecution had proved that Elizabeth went to Diana's
house on May 19, 2019, had specifically gone to the room where the papers were, and but for
being found by Diana at the time, she would have moved the papers to take them. It ruled that
the information contained in a document could not be the subject of theft, and thus remembering
the contents of a document, or taking a photograph of a document, was not "moving" anything
for the purposes of Section 378 EPC.

On November 15, Elizabeth was found guilty of an attempt to commit the offence punishable
under Section 380 EPC. The sentencing hearing was fixed for November 17, 2019. For her
conviction under Section 511 EPC read with Section 380 EPC, Elizabeth was sentenced to 2
years in prison and a fine of 10,000 Erewhon Dollars, payable as compensation to the victim.
She was released on bail the same day.

The laws of Erewhon are pari materia to that of India.

10
 STATEMENT OF ISSUES

Issue I: Whether the criminal proceeding against Elizabeth is vitiated and the exclusion of
Elizabeth’s fingerprints and her seized mobile phone from the evidence is lawful?

Issue II: Whether Elizabeth is guilty of committing theft?

Issue III: Whether there has been a suppression of evidence by the prosecution?

Issue IV: Whether the conviction under Section 511 read with Section 380 of the EPC is
maintainable?

11
 SUMMARY OF ARGUMENTS

I. WHETHER THE CRIMINAL PROCEEDING AGAINST ELIZABETH IS VITIATED AND THE

EXCLUSION OF ELIZABETH’S FINGERPRINTS AND HER SEIZED MOBILE PHONE FROM THE
EVIDENCE IS LAWFUL?

It is humbly submitted before the Hon’ble High Court that the seizure conducted at
Elizabeth’s house was not bad for the want of warrant. The devices were seized to obtain
proper evidence for the case. The investigation team had to take quick action for there was
a fear of destruction of evidence by the accused. The investigation was free, fair and
judicious. The accused cooperated with the search and all other procedures for the
investigation. Hence, no prejudice was done to the accused.

II. WHETHER ELIZABETH IS GUILTY OF COMMITTING THEFT?

It is humbly submitted before the Hon’ble High Court that the accused must be convicted
for the commission of the theft of vignettes from the complainant's house because theft has
been committed under Section 380 of the Erewhon Penal Code; Diana’s vignettes are in
the possession of Elizabeth and Elizabeth has stolen Diana’s personal data. Section 378 of
the Erewhon Penal Code, 1860 has provided a proper legal definition of theft as whoever,
intending to take dishonestly any movable property out of the possession of any person
without that person’s consent, moves that property in order to such taking, is said to
commit theft.

III. WHETHER THERE HAS BEEN A SUPPRESSION OF EVIDENCE BY THE PROSECUTION?

It is humbly submitted before the Hon’ble High Court that there has been suppression of
evidence by the prosecution; the Pre-Trial Court’s ruling concurring with the prosecution’s
contention regarding the non-reliance upon evidence of text messages exchanged between
Diana and Elizabeth was erroneous due to the Secondary Evidence produced by the
respondent is insufficient, Elizabeth and Diana’s conversation on the text was a relevant fact
and the respondent must produce that evidence in court.

12
IV. WHETHER THE CONVICTION UNDER SECTION 511 READ WITH SECTION 380 OF THE EPC
IS MAINTAINABLE?

It is humbly submitted before the Hon’ble High Court that the conviction under section 511 read
with 380 of the EPC is not maintainable as no theft or attempt to theft has been committed under
section 380 of the EPC by the appellant, Elizabeth had a bonafide claim over those documents
and the trial court did not deliver a reasoned judgment. There was no reasoned judgment given
by the trial court and therefore, the conviction under section 511 read with 380 of the EPC is not
maintainable.

13
 ARGUMENTS ADVANCED

I. WHETHER THE CRIMINAL PROCEEDING AGAINST ELIZABETH IS VITIATED AND THE

EXCLUSION OF ELIZABETH’S FINGERPRINTS AND HER SEIZED MOBILE PHONE FROM THE

EVIDENCE IS LAWFUL?

It is humbly submitted before the Hon’ble High Court that the investigation in the case was
lawfully conducted by the police authorities without causing any prejudice to the accused. The
search and seizure were legal and the investigation was free, fair and judicious.

The officer in charge may search for a location without a warrant by noting the importance of the
object if there are reasonable reasons to believe that it is required for further investigation.1 The
search without a warrant is not in contravention with Article 20(3) of the Constitution of
Erewhon which safeguards the rights of an accused. Based on the details Diana provided
concerning the event of May 19, 2019, a valid assumption was made. 2

Under Section 2 (h) of E.Cr.P.C, Investigation is defined as all the proceedings under this Code
for the collection of evidence conducted by a police officer or by any person other than a
Magistrate who is authorized by a Magistrate in this behalf. In the case of State of Gujarat v.
Kishanbhai3 the court stated that the power is vested in the investigating team to investigate the
case where they suspect the commission of an offense and to bring out the real unvarnished truth.

In the case of Mithilesh Kumar Singh v. State of Rajasthan 4, it is stated that a proper inquiry
should uncover the truth in order to carry out justice not only during the investigation stage but
also throughout the trial stage. The investigating officer is the only one with the authority to
decide how the inquiry will be conducted.

The investigating team in this case adheres to the proper procedure for an inquiry into a
cognizable offence. Any irregularity must not detract from the reliability of the evidence, and the

1
Sanchita Investment v. State [AIR 1981 Cal 157]
2
Khaliqan v. Emperor [AIR 1945 Oudh 170]
3
(2014) 5 SCC 108
4
(2015) 9 SCC 795
14
court must carefully review it as described under the case of State of Karnataka v. K. Yarappa
Reddy 5 . Diana has a fundamental right to a fair investigation, which the investigating team
ensured and carried out.6 Additionally, Elizabeth received a notice to appear for questioning in
accordance with the law, demonstrating that the investigation was impartial and lawful.

It is humbly submitted to the Hon’ble Court that the exclusion of Elizabeth's fingerprints and the
mobile phone is unlawful as proved by The doctrine of the fruit of the poisonous tree came
through the case of Silverthorne Lumber Co. v. United States 7 , which is very similar to the
exclusionary rule followed in United States through the case of Nardone v. United Sates 8 .
Evidence to be unlawful and inadmissible under an evidentiary exclusionary rule, should be the
one which is derived from or gathered during an illegal action. Since the investigating team has
not taken any recourse to any illegality in the search and seizure of fingerprint and her mobile
phone therefore the rule doesn’t apply.

In the case of United States v. Grady 9 it was held that a technical violation of the statutory
provisions regulating to police activity does not amount to exclusion of evidence. Through
Kurume v. The Queen10 it was held that the only test to be applied to determine the admissibility
of the evidence is its relevance, and not how the evidence was obtained. Therefore, the
relevance of how the photos were collected by the investigating team is not relevant to claim
exclusion and calling it a fruit of poisonous tree. In India, through the case of MagrajPatodia v.
R.K Birla 11 it is stated that if a document procured by improper or illegal means and its
genuineness and relevance is proved to the court, its admissibility cannot be barred and claimed
to be unlawful. In the case of AK Gopalan v. State of Madras 12 and M P Sharma v, Satish
Chandra13 the learned court observed that the common-law courts constantly reject the exclusion
of evidence based on the precedent set through the case of MagrajPatodia v. R K Birla. In the
case of State of Kerala v. Alasserry Mohammed 14 the learned court stated that any failed

5
1999 (3) SCR 359
6
Major Gurjinder Singh v. State of Punjab (2011) 3 SCC 530
7
251 US 385
8
308 US 338 (1939)
9
185 F 2d 273
10
[1954] UKPC 43
11
1971 AIR 1295
12
[1950] S.C.R. 88
13
[1954] S.C.R. 1077
14
AIR 1978 SC 933
15
outcome presented on the behalf of investigating officers related to compliance of strictness with
the provisions while search and seizure would not vitiate the trial and conviction of the accused.
In the case Jai Prakash v. State of Uttar Pradesh 15 the learned court also held that an act of
commission or omission done by the investigating officer cannot go to the advantage of the
accused.

It is also humbly stated that according to the Article 21 of the Constitution of Erewhon the
procedure followed by the investigating team was the procedure established by law. Hence, the
fruit of the poisonous tree doctrine is not applicable. The evidence was obtained following the
due procedure that there has been no violation of Article 20(3).

As in the case of Bharama Parasram v. State of Karnataka 16 any investigation must include the
taking of fingerprints, so the police are not required to ask the magistrate for this. Thus, it is
legal for a court or other investigating authority to order someone to provide their biometric for
the purpose of correlating evidence, and doing so does not violate their right under Article 20(3)
in case of State of U.P. v. Sunil17. Additionally, Article 20(3) does not forbid the use of that
evidence to support a fact that the investigator is aware of as mentioned in the case of Selvi v.
State of Karnataka18. Elizabeth was therefore correctly instructed by the police to provide her
fingerprints.

The policeman had a good reason to look through Elizabeth’s phone, it wasn’t a violation of her
privacy rather, it was necessary in reference with the case of Michael Cooper v. National Crime
Agency19. Additionally, any form of evidence can be used to prove the connection between the
information and the offence. The reason Elizabeth’s fingerprints were requested during the
interrogation was to demonstrate that she had taken pictures of Diana’s work with her phone
without her permission and published those pictures in the BFG Reader App’s beta edition. As a
result, Elizabeth was contacted in accordance with the legal process in order to gather the proof.

When an original document is such whose certified copy is permitted by the Erewhon Evidence
Code, it can be produced before the court as evidence. Since mere production of it does not

15
2019 SCC Online SC 1525
16
(2014)14 SCC 431
17
2017 SCC 520
18
(2010) 7 SCC 263
19
(2019) EWCA Civ 16
16
establish the authenticity of those copies, they must be verified by comparison with the original
documents as per Section 67 of the Erewhon Evidence Code which in the present case matched
with the printouts obtained from Diana and after such assurance and that the certified copy is
executed as per the provisions of law, the court shall presume the certified copy to be admissible
by law in the case of Bhinka v. Charan Singh20. Media generated through mobile phones can be
submitted like other secondary evidence in the form of printouts which must be duly certified.
The police have to give a copy of the document in their possession to the person who has a right
to inspect them but such a copy can be given only of a public document. Private documents when
filed are kept as evidence of something written or done and thus, become a public record and
certified copies of such documents are very well admissible in the court of law. Furthermore
Section 77 of the Erewhon Evidence Code provides for the production of certified copies as
proof of the contents of the public document in reference with the case of Parkash Rai v. J.N.
Dhar21. Hence, the production of certified copies of the photographs obtained from Elizabeth’s
phone fulfils the criteria laid down in the Act and is therefore admissible in the court of law.

In the case of K. Balakrishnan v. S. Dhanasekar 22 it was stated that, it is a reasoned judgment

when the trial court did not consider the facts and provided vague justification for its decision.
The fundamental rule of law includes the idea of reasoned judgment, and procedural law
demands it. The justification must be clear and connect the evidence in the record to the
judgment reached by the court. In order for laws to be applied to the facts presented to a court,
which has not happened in this case.

In the case of Cooper v. Wandsworth Board of Works23, Adam was not sentenced to death by
God without a good reason being given. Natural justice dictates that the court should render a
reasoned decision. A violation of this cardinal rule results in the denial of justice. Giving an
imprecise explanation is against natural justice and fair play. The court may also declare an
action invalid if there has been a flagrant breach of natural justice in reference with State Board

20
1959 AIR 960
21
AIR 1977 Delhi 7
22
2018(2) CTC 859
23
(1863) 143 ER 414
17
of Secondary and Higher Secondary Education Maharashtra v. K.S. Gandhi 24. Therefore, the trial
court’s unjustified ruling must be reversed.

II. WHETHER ELIZABETH IS GUILTY OF COMMITTING THEFT?

It is humbly submitted before the Hon’ble High Court that the accused must be convicted for the
commission of the theft of vignettes from the complainant's house because theft has been
committed under Section 380 of the Erewhon Penal Code; Diana’s vignettes are in the
possession of Elizabeth and Elizabeth has stolen Diana’s personal data.

Theft, in layman terms means the taking of a person’s property without the consent of the owner
and Section 378 of the Erewhon Penal Code, 1860 has provided a proper legal definition of theft
as whoever, intending to take dishonestly any movable property out of the possession of any
person without that person’s consent, moves that property in order to such taking, is said to
commit theft.

Under the Section of 380 of the Erewhon Penal Code it is stated that whoever commits theft in
any building, tent or vessel shall be punished with imprisonment of either description for a term
which may extend to seven years and shall also be liable to fine.

In the case of K.N.Mehra v. State of Rajasthan 25 , the court mentioned that one of the most
important elements in proving guilt of theft is dishonest purpose, which is established when
ownership is transferred by stealing with the intent to either cause unjust benefit to one person or
wrongful loss to another.

As discussed in the case of Pyarelal Bhargava v. State of Rajasthan 26 , a person experiences

wrongful loss when they lose property to which they have a legal claim. Here, Elizabeth had the
requisite animus furandi, which is the intention to steal. She went to the same room where she
had seen the vignettes and she got slightly frightened when Diana caught her looking over the
papers with her phone which shows the clear intention of dishonesty. Intention is the gist of
offence theft. Dishonest intention on the part of Elizabeth.

24
(1991) 2 SCC 716
25
AIR 1957 Sc 369
26
AIR 1963 Sc 1094
18
According to Justice R. Banumathi and Justice R.Shubhash Reddy 27 the information contained
thereon in the documents would also fall within the purview of the "corporeal property" and can
be the subject matter of the theft. “Information contained in a document, if replicated, can be the
subject of theft and can result in wrongful loss, even though the original document was only
temporarily removed from its lawful custody for the purpose of extracting the information
contained therein."As Information is a subject matter of theft. The alleged stolen property,
vignettes, is a literary work involving creativity and thus a form of intellectual property. A
document is a valuable security. Thus, Elizabeth replicated the information in a digital medium
that fulfills the requirement of moving of property.

If a property belongs to no one there cannot be theft that is res nullius which means things
belonging to no one. The offence of theft comes in to existence when property is removed from
somebody’s possession without his consent 28. Everyone has the right to protect ones moral and
material interests resulting from any literary work authored by him. Diana as a creator of those
vignettes has a right to exclusive possession of her property. Common law copyright has
recognized the value of encouraging creativity by granting the creators to keep the benefit,
particularly the economic benefit, of their work. Diana’s proprietary right was infringed because
she lost her exclusive right to commercially gain from it. The commercial utilization of Diana’s
work has led to an unreasonable prejudice and has harmed her legitimate interests in her
intellectual property. Elizabeth took unfair advantage of Diana’s work and therefore the defense
of fair dealing is not available to her. The law of copyright is an extension of the right to freedom
of speech and expression guaranteed by the Constitution of Erewhon. Thus Diana has a
legitimate right to protect her property. It is important to bring a suit under theft that the
property in question must have been taken without the consent of owner of that property. It is
important that he must have physical control over it; his possession may be rightful or wrongful.
Appropriating the property without the knowledge and connivance of the person amounts to
theft.

Where property is transferred by a debtor to his creditor under debtor’s full and unequivocal
consent that does not make the taking of property by the creditor a theft even though the debtor

27
Birla Corporation Limited Vs. Adventz Investments And Holdings Limited & Others[Air 2019 Sc 2390]
28
B. M. Gandhi, Indian Penal Code, pg. 539

19
afterwards find that the debt was a time barred one 29. When the stolen property was found in
Elizabeth’s phone, she had no explanation to such possession. Elizabeth committed theft as she
had no bona fide claim of right on those vignettes and still took it to her use without Diana’s
consent.

The time factor between theft and recovery of material depends upon the nature of stolen articles
and facts of each case. The fact of the discovery of vignettes upon publication on the BFG
Reader app under Elizabeth's name in a matter of just 12 days is conclusive proof of her guilt.
Since no reasonable explanation is given by Elizabeth regarding the recent possession of the
vignettes and it is also a relevant fact that Elizabeth had visited Diana’s house on May 19 where
she was found looking at the vignettes. Therefore, Elizabeth has stolen Diana’s personal data.

Collecting such information without prior permission of the holder would be a violation of
privacy. Furthermore, Article 8 of the European Union Directive states that personal data
revealing data concerning health or sex life of a person is a special category of data. Diana was a
member of the LGBTQ community and the vignettes about her life were published under
Elizabeth's name, without her consent.

The crime of theft implies an invasion of possession. Personal property to be the object of theft
must be capable of appropriation. According to Locke’s Labor Theory30, that every individual
has a natural right to own the fruits of his or her labor. So, Diana is entitled to get the fruits of her
labor.

In dealing with a criminal case where the prosecution relies upon the confession of one accused
person against another accused person, the proper approach to adopt is to consider the other
evidence against such an accused person, and if the said evidence appears to be satisfactory and
the court is inclined to hold that the said evidence may sustain the charge framed against the said
accused person, the court turns to the confession with a view to assure itself that the conclusion
which it is inclined to draw from the other evidence is right. Property stolen is found in recent
possession of Elizabeth.

29
(1904) 1 All LJ 508: 1 Cri LJ 803
30
Theories of Protection of Intellectual Property Rights

20
In the case of Haricharan Kurmi & Anr. v. State of Bihar 31 it was observed that recovery of items
was made; the prosecution must further establish the essential ingredient of knowledge of the
appellant that such goods are stolen property. Elizabeth must give a reasonable explanation of
the possession of vignettes. Since no reasonable explanation is given by Elizabeth regarding the
recent possession of the vignettes, the court may presume that she has stolen them.

III. WHETHER THERE HAS BEEN A SUPPRESSION OF EVIDENCE BY THE PROSECUTION?

It is humbly submitted before the Hon’ble High Court that there has been suppression of
evidence by the prosecution; the Pre-Trial Court’s ruling concurring with the prosecution’s
contention regarding the non-reliance upon evidence of text messages exchanged between Diana
and Elizabeth was erroneous due to the Secondary Evidence produced by the respondent is
insufficient, Elizabeth and Diana’s conversation on the text was a relevant fact and the
respondent must produce that evidence in court.

As per Section 65 of Erewhon Evidence Code, 1973, the parties can produce secondary
evidence in the court which is subjected to certain conditions but in a digital camera the printout,
the photo itself is the primary evidence as stated in the case of Unnikrishnan v. The State by
Inspector of Police32. In Section 136, Illustration (b) of Erewhon Evidence Code 1973 it is also
mentioned that the party proposing to produce secondary evidence must prove the fact that the
primary evidence was lost. The mobile phone seized from Elizabeth's house does not fall under
any of the given categories, neither primary nor secondary as mentioned in the case of Anwar
P.V. v. P.K. Basheer 33. As preceded in the case of Bhuwan and Sonu v. State of UP34 that the
prosecution is bound to produce the primary evidence in the court of law but instead they
submitted the copies of the photographs without proving the fact that the primary evidence,
couldn't be produced which are the original photographs they obtained from her phone. It was
submitted as secondary evidence only to hide the fact that the photographs were indeed not
recovered from the camera folder but some other folder and those were the same photographs

31
AIR 1964 SC 1184
32
Cr. Appeal No. 277 of 2011
33
(2014) 10 SCC 473
34
Criminal Appeal No. 7054 of 2006
21
which were sent by Diana White to which she referred in her texts and even thanked Elizabeth
for reading them. 35 Therefore. The appellants produced false evidence in the court.

Section 66 (2) of the Erewhon Evidence Code 1973 ask the party to provide the notice for
secondary evidence and the adverse party must know that it will be required to produce it. In the
case of Surendra Krishna v. MirzaMobamed Syed Ali36 the learned court held that the reason for
the proposal of notice is to give the parties a chance to make their case stronger by satisfying the
cardinal rule of the Evidence Act and provide the best evidence in court. In the case of Patel
Manilal Chhaganlal v. The Municipal Corporation Surat37 the learned court held that a court can
only dispense with this default when the party proposing the secondary evidence, successfully
proves that the reason it could not produce the original document is not negligence on its part but
some other circumstances that are out of their control. Moreover, in the case of Krishan Gopal
Bajpai v. State of UP38 it was held that the prosecution should not have concealed the material
facts within its knowledge which would hamper the proceedings and affect the issues for the
court to give the right decision. The pertinent fact is that the police accessed Elizabeth's phone
and they discovered the conversation between Elizabeth and Diana about her stories where she
thanked Elizabeth for reading them but the same was not produced by the appellant as evidence
on record in the court and was indeed suppressed by the appellant. 39

As per Section 173(6) of Erewhon Evidence Code 1973, the police officer must submit all the
documents to the magistrate and he may, afterward, request the magistrate to exclude that part
from the copies to be granted to the accused which are not relevant in his opinion. Quoting the
section in the case of State of Haryana v. Mehal Singh 40 the learned court held that the collection
of evidence does not mean that the investigating authority must only record such evidence which
proves the prosecution case. Placing less reliance on exonerating evidence to confirm a pre-
41
supposed hypothesis and preferring the guilt of the accused results in biasness. The

35
Moot problem p.no. 4, para 16.
36
AIR 1936 PC 15
37
AIR 1978 Guj. 193
38
Cr. Appeal No. 615 of 1998
39
Moot Problem p.no. 4 para 16
40
1978 SCC Online P&H 117
41
Karl Ask, Anna Rebelius & Par Anders Granhag, “The Elasticity of Criminal Evidence: A Moderator of
Invesitgator Bias”, 22 Applied Cognitive Psychology 1245, 1253-55, (2008)

22
prosecution's justification for not filing the text messages 42 is a denial of the credibility of the
evidence.

Section 6 of Erewhon Evidence Code 1973 states that the fact which might not be in issue but, is
so connected with the facts in issue to give them substance is known as relevant facts and as
mentioned in the case of Babulal Choukhani v. Western India Theatres Ltd. 43, this is usually
known as the rule of res gestae in evidence. Sometimes, the items of evidence are said to be part
of res gestae owing to their strength of connection with the fact in issue and as such are
admissible 44 . The US Court in the case of James Giles v. State of Maryland 45 stated that it
enables the court to find out the truth when the prosecution tries to suppress the evidence
favorable to the respondent. Also as preceded in the case of Kappinaiah v. Emperor 46 , the
principle of res gestae also includes incidents that may be fairly considered a part of the event
under discussion and as stated in the case of Kashmira Singh v. State47, facts in the continuity of
fact in issue and the purpose or design are a part of the same transaction.

In the case of Yusuf Ali v. State48 it was observed that a tape-recorded conversation between the
accused and the complainant recorded in the absence of police and the voices of the parties later
being identified was held admissible. Diana’s and Elizabeth's conversation over text about
Diana’s stories and the fact that she thanked Elizabeth for reading them proves that she had
Diana's prior consent to read those vignettes. It is a relevant fact as it dissatisfies the essential
elements of theft as per section 378 of Erewhon Penal Code 1860, establishing a reasonable
doubt against Elizabeth's conviction for the above-mentioned offense and that the appellant has
wrongly alleged her of it.

As stated by the learned court in the case of Nitin v. Rekha 49 that a text message is undoubtedly
reliable evidence and as preceded in the case of Royston Victor Saldanha v. State of
Maharashtra50, it can be admitted to the court of law. The court may presume evidence to be

42
Moot Problem, p.no. 5 para 19
43
AIR1957 Cal 709
44
Lord Hailsham, XVII Halsbury’s Laws of England 8, (Buttherworth, England, 4thedn. 1989)
45
386 US 66, 87, S.Ct. 793
46
AIR 1931 Mad 233
47
1965 JK 37
48
AIR 1968 SC 147
49
2017 SCC Online Bom 112
50
2018 SCC Online Bom 13263
23
unfavorable to the person who did not produce evidence which could be produced before the
court as per section 114(g) of Erewhon Evidence Code. Moreover, to effectively reach this
conclusion, as mentioned in the case of Ramesh v. State of UP 51 , the court must assess the
suppressed material facts and their effect on the facts in issue and also must verify their
evidentiary value and, on finding those facts to be relevant, the court is obliged to order for them
to be produced before it. Withholding evidence material to the determination of guilt of the
accused violates the respondent's right to due process of law. Moreover, in the case of Vijayee
Singh v. State of UP52, it is held that a fundamental principle of criminal jurisprudence is that the
burden of proof is always on the prosecution and never shifts. Therefore, the pre-trial court’s
decision to neglect the messages completely without even examining or summoning the
prosecution to produce the text messages exchanged between Diana and Elizabeth is arbitrary.

IV. WHETHER THE CONVICTION UNDER SECTION 511 READ WITH SECTION 380 OF THE

EPC IS MAINTAINABLE?

It is humbly submitted before the Hon’ble High Court that the conviction under section 511 read
with 380 of the EPC is not maintainable as no theft or attempt to theft has been committed under
section 380 of the EPC by the appellant, Elizabeth had a bonafide claim over those documents
and the trial court did not deliver a reasoned judgment.

As preceded in the case of K.N. Mehra v. State of Rajasthan 53, a dishonest intention54 is one of
the most essential ingredients to bring home the guilt of theft or attempt of theft and as observed
in cases of Ramratan55, Lal Mohammad56, Burasing57, it happens only when a person moves a
property, with the intention of either causing wrongful gain to one person or wrongful loss to
another person. Elizabeth has nothing to gain from the alleged stolen property, i.e. vignettes, as

51
Cr. Appeal No. 524 of 2003
52
SC 1990 (3) SCC 190
53
AIR 1957 SC 369
54
Erewhon Procedure Code 1860, s. 24
55
AIR 1965 SC 926
56
AIR 1931 Pat 337
57
AIR 1935 Sind 115

24
BFG is the ultimate beneficiary of all the profits arising out of the appraisal of the vignettes or
any other content on the BFG Reader app for that matter of fact. 58

Moreover, in the instant case, no wrongful loss has been caused to Diana as her “personal data”,
i.e. vignettes was ever protected.59 Giving protection to personal data requires it to be processed
fairly and lawfully. Since Diana breached her employment contract with BFG by developing the
allegedly stolen content for a rival publishing house during her employment under BFG,the
vignettes are said to be processed unlawfully.

The ownership of any content developed by Diana using BFG’s resources lies with BFG 60 and it
can, for its profit, assign the same to any other employee. As held in the case of Dsndi V. Deka
v. State of Assam61, bona fide claim is the defense to the charge of theft or attempt of theft
because it postulates the want of mens rea. Where property is occupied in the assertion of a
contested claim of right, however ill-founded that claim may be, it thereof does not amount to
theft.62 As observed In re Thangavelu 63, the claim of right here is enough to create a doubt that
the property which is the subject matter of theft may not even belong to the complainant and
Elizabeth as part of the strategy team in BFG can claim her legal right over the property on
behalf of BFG Co. Since, Diana is an employee of BFG Co., all of her work would be
contributed to the firm towards its progress. 64

According to the case of Bidyadhar v. Shyam Sundar 65, the claim should be bona fide, but not
mere pretence. In the case of Ram Kbal66, the learned court held that where the question is in a
fluid state and the accused in good faith believing that she had a right over the vignettes then, no
offence of theft can be made against her. Also, according to the judgement of Chandi Kumar v.
Abanidhar Roy67 , an act does not amount to theft if there is anylegal right or even a mere

58
Moot Problem p.no. 1, para 3
59
Principle of Data Protection Act, 1988
60
Tim Russel, A Guide to UK Employment Law, 2.2 (d)
61
(1982) Cr Lj 188 (Gau)(NOC)
62
Dr. KI Vibhute, PSA Pillai’s Criminal Law 758 (Lexis Nexis Butterworths Wadhwa, Nagpur, India, 10 thEdn.)
63
AIR 1958 Mad 476
64
Seanix Technology Inc. v. Ircha1998, 78 CP (3d) 443 BCSC
65
(1971) 1 Cut WR 205
66
1972 CrLJ 584 (SC)
67
AIR 1965 SC 585

25
appearance of a colourable legal right. Furthermore, In the case of Nagappa68, the learned court
also held that if a person takes away, someone else's property, believing under a mistake of fact
or ignorance of law that he has a right to take it, is not theft or attempt to theft. Here, Elizabeth
neither took someone else’s property knowingly nor by the mistake of fact or ignorance of law as
the vignettes found with Elizabeth were sent by Diana with her consent for reading. In the case
of K.Balakrishnan v. S.Dhanasekar, the learned court held that when the trial court had not
considered the evidence and had given ambiguous reason to back its judgment then it is an
unreasoned judgment. It was observed in the case of Asst. Commissioner v. M/s. Shukla &
Brothers 69 that the concept of reasoned judgment is a part of basic rule of law, and it is a
requirement of procedural law. Moreover, in Commissioner of Income Tax v. Surendra Singh
Pahwa70, it was held that the reason could be ambiguous, but it should establish the link between
material on record and the conclusion on which the court had arrived. Basically, the learned
court in the case of Swaran Lata Gosh v. H.K. Banerjee, held that a reasoned judgment is the one
in which there is an application of laws in the facts that have been produced and which has been
lacking in this case where there has been no application of law while giving the judgment.

In the case of Ravi Yashwant Bhoir v. Collector71, the learned court held that the principle of
natural justice requires that the court should give the reasoned judgment and as observed in State
of Orissa v. Dhaniram Luhar and in CCT v. Shukla and Bros., giving a reasoned judgment is a
cardinal principle of criminal jurisprudence. Supreme Court in the landmark judgment of S.N.
Mukherjee v. Union of India held that failure to give valid reason while giving judgment is a
denial of justice. Moreover, in Board of Secondary and Higher Secondary Education of
Maharashtra v. K.S. Gandhi72, Supreme Court has emphasized that it is implicit that giving an
ambiguous reason is a violation of fair play and natural justice. And as preceded in M/S Seas
Goa Ltd. v. State of Goa73, in a case where there is a serious violation of natural justice, the court
can declare the action as invalid. In the case of Cooper v. Wandsworth Board of Works 74, the

68
(1890) 15 Bom 344
69
2010 AIR SCW 3277
70
AIR 1995 All. 259
71
(2012) 4 SCC 407
72
(1991) 2 SCC 716
73
2013 SCC Online NGT 27
74
[1863] 143 ER 414

26
learned court stated that the “God himself did not pass the sentence against Adam without giving
a valid reason and in this case”, there was no application of laws in the facts that were on record.
Hence, there was no reasoned judgment given by the trial court and therefore, the conviction
under section 511 read with 380 of the EPC is not maintainable.

27
 PRAYER

In the light of issues raised, authorities cited and arguments advanced, the Counsel on behalf of
the Appellant humbly requests that the Hon’ble Court may be pleased to adjudge and declare
that:

1. The investigation was free, fair and judicious and no prejudice was done to the accused.

2. The Elizabeth must be convicted for the commission of the theft of vignettes from the Diana’s
house because theft has been committed under Section 380 of the Erewhon Penal Code.

3. There has been suppression of evidence by the prosecution and Elizabeth and Diana’s
conversation on the text was a relevant fact and the respondent must produce that evidence in
court.

4. The conviction under section 511 read with 380 of the EPC is not maintainable as no theft or
attempt to theft has been committed under section 380 of the EPC.

And/ Or

Pass any such order as this Hon’ble Court may deem fit in the light of equity, justice and good
conscience, for this act of kindness, the Counsel on behalf of Appellants shall be duty bound
forever.

PLACE: HIGH COURT OF EREWHON (Counsels for the Appellant)

28