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[ MEMORIAL for RESPONDENT]
XVIII K.K. LUTHRA MEMORIAL MOOT COURT, 2022
Before
THE HIGH COURT OF KILLDARE
Criminal Appeal No. 1111 of 2021 CRISTO ......................................................................................................................APPELLANT v. STATE ........................................................................................................................ RESPONDENT MEMORIAL for RESPONDENT
URN: 1825
[ MEMORIAL for RESPONDENT]
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................................. 2
STATEMENT OF FACTS ...................................................................................................... 5
ISSUES RAISED...................................................................................................................... 6
SUMMARY OF ARGUMENTS ............................................................................................. 6
ARGUMENTS ADVANCED .................................................................................................. 7
I. THAT THE PROCEEDINGS OF THE TRIAL CANNOT BE VITIATED ON
ILLEGALITY AND INCOMPETENCY .............................................................................. 7
II. THAT THE TRIAL COURT HAS CORRECTLY APPLIED THE TEST OF
PROVING FACTS ‘BEYOND ALL REASONABLE DOUBT’ ......................................... 7
2.1 Motive on the Part of the Appellant is Established ................................................. 8 2.2 The Testimonies of the Witnesses are Credible by the Reason of Dock- Identification ....................................................................................................................... 9 2.3 The Deceased was Last seen with the Appellant ................................................... 11 2.4 That the Accused had Intention to Murder the Deceased ...................................... 13 2.5 No Adverse Inference can be Drawn from the Guard Being Dropped as a Witness 14 2.6 The Absence of Independent Witnesses During the Preparation of Memos Does Not Invalidate the Investigation .............................................................................................. 14 2.7 The Recovery of Pack of ‘Lucky Strike’ Cigarettes From Appellant’s Room is Relevant ............................................................................................................................ 16 2.8 Statements Made by The Appellant Were Voluntary ............................................ 17 2.9 No Inference About the Presence of Another Perpetrator can be Established ...... 18 III. THAT THE ESSENTIAL INGREDIENTS OF SECTIONS 299/300 AND 201 OF THE FRISK PENAL CODE HAVE BEEN MET IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE ................................................................ 18 2.10 3.1 That The Essential Ingredients Of Section 299 Have Been ............................ 19 2.11 3.2 That The Essential Ingredients Of Section 300 Have Been Met In The Facts And Circumstances Of The Instant Case .......................................................................... 21 2.12 3.3 That The Essential Ingredients Of Section 201 Have Been Met In The Facts And Circumstances Of The Instant Case .......................................................................... 23 Prayer ...................................................................................................................................... 25
- Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217. - CASE LAWS- PAGE NO.
- Ammu v. State of Maharashtra (2003) 8 SCC 93. 12,
- Appabhai and Anr. v. State of Gujarat AIR 1988 SC 696.
- Appu v. State AIR 1971 Mad 194.
- Arun Raj v. Union of India (2010) 6 SCC 457.
- Ashok v. State of Maharashtra (2015) 4 SCC 393.
- Banti v. State of MP (2004) 1 SCC 414.
- Bappa Banerjee v. State of West Bengal (2011)12 SCC
- Basdev v. The State of Pepsu AIR 1956 SC 488.
- Bhanwar Singh v. State of Madhya Pradesh (2008) 16 SCC 657.
- Bir Singh & Ors v. State of U.P. (1977) 4 SCC 420.
- Bodh Raj Alias Bodha v. State of Jammu and Kashmir (2002) 8 SCC 45.
- Budhsen v. State of U.P. (1970) 2 SCC 128.
- Darshan Singh v. State of Punjab (2010) 2 SCC 333.
- Deyyala Suryanarayana Suribabu v. The State of A.P. (2021) Cri App 1035 of 2021.
- G Parsavnath v. State of Karnataka (2010) 8 SCC 593.
- Hanumant v. State of Madhya Pradesh (1952) 1 SCR
- Harbhajan Singh v. State of J&K (1975) 4 SCC 480.
- Hari Nath v. State of U.P. (1988) 1 SCC 14.
- Harpal Singh v. Devinder Singh & Anr (1997) 6 SCC 660.
- Jadunath Singh v. State of U.P (1970) 3 SCC 518.
- Jitender Kumar v. State of Haryana (2012) 6 SCC 204.
- Jones v. State (1987) 735 P.2d 699, 703. 15,
- K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605.
- Kalawati v. State of Himachal Pradesh AIR 1953 SC 131.
- Krishna Mahadev Chavan v State of Maharashtra , 2021 SCC OnLine Bom 191.
- Malkhansingh & Ors v. State of MP (2003) 5 SCC
- Malkiat Singh v. State of Punjab (1969) 1 SCC 157.
- Masalti v. State of UP AIR 1965 SC 202.
- Mujendra Langeshwaran v. State (2013) 3 SCC (Cri) 266.
- Munshi Singh Gautam v. State of M.P (2005) 9 SCC 631. [ MEMORIAL for RESPONDENT]
- Munshi Ram v. Delhi Administration AIR 1968 SC 702.
- Musheer Khan v State of M.P. (2010) 2 SCC 748.
- Narayanan Nair Raghavan Nair v. State of Travancore-Cochin AIR 1956 SC 99.
- Nath Uni v. State of Bihar (1998) 9 SCC 238.
- P.P. v. Chan Kim Choi (1989) Singapore Supreme Court 404.
- Pawan Kumar v. State of Haryana (1996) 4 SCC 17.
- R v. Brown [2012] NICA
- R v. Corr [1968] NI 193.
- R v. Devibe [2021] NICA
- R v. Duffy [1949] 1 All ER 932.
- R v. Moloney [1985] AC 905 (HL).
- R v. Palmer [1886] 115 N.Y. 506.
- R v. Steven Edward Dossett [2013] EWCA Crim 710.
- Radhey Shyam And Another v. State of U.P (2005) 53 All. HC
- Raju Manjhi v. State of Bihar (2019) 12 SCC 748.
- Rakesh v. State of U P (2021) 7 SCC 188.
- Rampal Singh v State of U.P. (2012) 8 SCC 289.
- Sadhu Singh v. State of Punjab (2009) 13 SCC 776.
- Sahabuddin & Anr v. State of Assam (2012) 13 SCC 213.
- Samuthram alias Samudra Rajan v. State of Tamil Nadu (1997) 2 Mad 185.
- Sanjeev v. State of Haryana (2015) 4 SCC 387.
- Santokh Singh v. Izhar Hussain (1971) 2 SCC 75.
- Satpal Singh v. State of Haryana (2018) 6 SCC 610.
- Satya Vir v. State AIR 1958 All
- Shaikh Sattar v. State of Maharashtra (2010) 8 SCC 430.
- Shakuntala Shukla v. State of U.P (2021) SCC OnLine SC 672.
- Sharad Birdhi Chand Sarda v. State of Maharashtra (1984) 4 SCC 116.
- Shivaji Sahabrao Bobade & Others v. State of Maharashtra (1973) 2 SCC 793.
- State of Andhra Pradesh v. K. Venkata Reddy & Others (1976) 3 SCC 454.
- State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.
- State of Gujarat v. Bhalchandra Dave (2021) 2 SCC 735.
[ MEMORIAL for RESPONDENT] State of Haryana v. Sher Singh (1981) 2 SCC 30. 12 State Of Himachal Pradesh v. Prem Chand (2002) 10 SCC 518. 10 State of Madhya Pradesh v Kalicharan & Ors (2019) 6 SCC 809. 13 State of Maharashtra v. Narsingrao Gangaram (1984) 1 SCC 446. 12 State of MP v. Dharkole (2004) 13 SCC 308. 08 State of Rajasthan v. Kashi Ram (2006) 12 SCC 254. 11, State of Rajasthan v. Kishore (1996) SCC (Cri) 646. 15 State v. Willis (1982) 632 S.W.2d 63. 08 Surajdeo Mahto v. State of Bihar (2021) SCC OnLine SC 542. 12 Sushil Kumar v. NCT of Delhi (2014) 4 SCC 317. 09 Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681. Ulla Mahapatra v. King AIR 1950 Ori 261, 264. 22 Umar Khushal v. Emperor AIR 1940 Pesh 1. 23 V L Tresa v. State of Kerala (2001) 3 SCC 549. 23,2 4 Vide Kodali Puranchandra Rao v. Public Prosecutor, (1975) 2 SCC 570. 15
- STATUTES- PAGE NO. The Frisk Evidence Act, 1860 09, 11,12,13, 1 6, 17 The Frisk Penal Code, 1860 19, The Criminal Procedure Code, 1973 14, BOOKS | COMMENTARIES | DICTIONARY PAGE NO. Batuk Lal, The Indian Evidence Act (Central Law Agency 2018). 08 ‘Jowitt’s Dictionary of English Law (2nd edn., Sweet & Maxwell 1977) 17 Halsbury’s Criminal Law (5th edn, 2020) vol 21. 19 J.W. Cecil Turner, Russell on Crimes (11th edn vol 1 Stevens & Sons Ltd 1958). 20 K.D. Gaur, Textbook on Indian Penal Code (7th edn, LexisNexis 2020). 08 Collins English Dictionary, https://www.collinsdictionary.com/dictionary/english/petty- crime.
Ratanlal & Dhirajlal, The Law of Evidence (27th edn, LexisNexis 2019). 07 ,08, 17
[ MEMORIAL for RESPONDENT] witnesses or public persons were present during preparation of memo at night. As for the defence, the accused merely reiterated that the deceased chose to be dropped off a few blocks from his home. No other defence evidence was led by him. The Trial Court held that the case had been proved beyond reasonable doubt. Cristo was held liable under Section 302 and 201. Cristo appealed the decision on the ground of failure to establish the essential ingredients of Section 299/300 of the Frisk Penal Code and contented that chain of events was not established beyond reasonable doubt.
ISSUES RAISED
1. WHETHER THE ESSENTIAL INGREDIENTS OF SECTIONS 299/300 AND 201 OF
THE FRISK PENAL CODE HAVE BEEN MET IN THE FACTS AND
CIRCUMSTANCES OF THE INSTANT CASE?
2. WHETHER THE TRIAL COURT HAS CORRECTLY APPLIED THE APPLICABLE
TEST OF PROVING FACTS ‘BEYOND ALL REASONABLE DOUBT’?
SUMMARY OF ARGUMENTS
ISSUE 1: THAT THE ESSENTIAL INGREDIENTS OF SECTIONS 299/300 AND 201
OF THE FRISK PENAL CODE HAVE BEEN MET IN THE FACTS AND
CIRCUMSTANCES OF THE INSTANT CASE
It is submitted that the essential ingredients of Section 299/300 of the Frisk Penal Code have been satisfied. To this extent, the respondent established that the appellant had motive and intention to murder the deceased. It is established that the appellant owed money to the deceased and was jealous of him. The kind of injury sustained by the deceased indicates pre- conception. Further, as deposed by the witnesses, the deceased was last seen in the company of the accused. The proximity of this circumstance to the recovery of the body was so negligible that it is impossible that any other individual could have committed the crime. Subsequently, it is established that the facts and circumstances do not invite any of the exceptions under Section 300. ISSUE 2: THAT THE TRIAL COURT CORRECTLY APPLIED THE APPLICABLE TEST OF PROVING FACTS ‘BEYOND ALL REASONABLE DOUBT’ It is submitted that the present case is one of circumstantial evidence and the respondent has satisfied the standard of proof in accordance with the five golden principles of circumstantial
[ MEMORIAL for RESPONDENT] evidence. The circumstances relied upon by the prosecution conclusively establish an unbreakable chain of circumstances that is consistent only with the guilt of the accused.
ARGUMENTS ADVANCED
I. THAT THE PROCEEDINGS OF THE TRIAL CANNOT BE VITIATED ON
ILLEGALITY AND INCOMPETENCY
It is submitted that the accused-appellant was rightly convicted by the Trial Court under Section 302 and 201 of the Frisk Penal Code, 1860 (‘FPC’). The instant case is based on circumstantial evidence that placed a greater degree of burden on the prosecution before the Trial Court. During the Trial proceedings the respondent had proved the single chain of circumstances that incriminate the appellant beyond reasonable doubt. No substantial evidence was led by the appellant to indicate his innocence, which further credited the case to the prosecution. It has been observed by the Supreme Court that the Trial Court is the best place to holistically appreciate the demeanour of witnesses and evidence on record.^1 Further, the Supreme Court has persistently reiterated that the conviction by the Learned Trial Court immunizes the accused from his presumption of innocence before the Appellate Court.^2 It is well-settled that the miscarriage of justice can also arise from the acquittal of the guilty.^3 The respondent pleads that the appellant should not be granted presumption of innocence as the appreciation of evidence by the Trial Court remains substantial in the eyes of law and should act as a cornerstone for High Court’s appellate powers.^4 II. THAT THE TRIAL COURT HAS CORRECTLY APPLIED THE TEST OF PROVING FACTS ‘BEYOND ALL REASONABLE DOUBT’ The standard of beyond all reasonable doubt is defined as one that need not reach certainty but carries a high degree of probability.^5 To constitute a reasonable doubt, a doubt cannot be trivial, imaginary or a mere possibility, instead it must be premised on reason and common sense and must be free of any abstract speculation.^6 (^1) State of Gujarat v. Bhalchandra Dave (2021) 2 SCC 735. (^2) Mujendra Langeshwaran v. State (2013) 3 SCC (Cri) 266; G Parsavnath v. State of Karnataka (2010) 8 SCC
(^3) Shivaji Sahabrao Bobade & Others v. State of Maharashtra (1973) 2 SCC 793. (^4) Shakuntala Shukla v. State of U.P. (2021) SCC OnLine SC 672. (^5) Ratanlal & Dhirajlal, The Law of Evidence (27th edn, LexisNexis 2019) 173. (^6) State of MP v. Dharkole (2004) 13 SCC 308.
[ MEMORIAL for RESPONDENT] element existed to cause murder^13 Thus, under Section 8 of the Frisk Evidence Act 1872 (“FEA”), the existence and non-repayment of debt owed by the appellant to the deceased is a relevant fact that formulates motive.^14 Moreover, the appellant’s jealousy of the deceased, as established by the testimony of Coach Jose, alludes to strained relations between the parties. A strained interpersonal relationship between parties, as presently found between the appellant and the deceased, has been held to constitute motive for murder.^15 Thus, the strained relationship between the parties along with the impending debt, established motive on the part of the appellant and the motive so established is relevant under Section 8 of FEA and provides an additional link in the incriminating chain of evidence that establishes the guilt of the appellant.^16 2.2 THE TESTIMONIES OF THE WITNESSES ARE CREDIBLE BY THE REASON OF DOCK- IDENTIFICATION The identification evidence of a witness is admissible under Section 9 of the FEA. As a general rule, the substantive evidence of a witness is the statement made in court.^17 The identification before the Trial Court has to be preceded by a Test Identification Parade (“TIP”) but there is no provision in the Code which confers a right upon the accused to claim a TIP.^18 The testimony of a witness cannot be discarded or become inadmissible on the ground that no TIP was conducted before the dock identification.^19 Further, in regard to identification of an accused by a witness, the Supreme Court has held that the testimony of a witness in the court constitutes substantive testimony and the identification of an accused in the TIP is only confirmatory of the testimony made before the court.^20 TIP is not obligatory and does not render the identification evidence inadmissible^21 nor is it fatal to the case of the prosecution.^22 Presently, the accused-appellant was identified by three witnesses in the court. The testimonies of these witnesses are established to be credible: (^13) Ratanlal & Dhirajlal (n 6) 68. (^14) The Frisk Evidence Act 1872 s 8. (^15) Sushil Kumar v. NCT of Delhi (2014) 4 SCC 317. (^16) Evidence Act (n 14 ) s 8. (^17) Munshi Singh Gautam v. State of M.P (2005) 9 SCC 631; Santokh Singh v. Izhar Hussain (1971) 2 SCC 75. (^18) Hari Nath v. State of U.P. (1988) 1 SCC 14; Budhsen v. State of U.P. (1970) 2 SCC 128. (^19) Harbajan Singh v. State of J&K (1975) 4 SCC 480; Jadunath Singh v. State of U.P (1970) 3 SCC 518. (^20) State Of Andhra Pradesh v. K. Venkata Reddy & Others (1976) 3 SCC 454. (^21) Raju Manjhi v. State of Bihar (2019) 12 SCC 748. (^22) Harbhajan Singh v. State of J&K (1975) 4 SCC 480.
[ MEMORIAL for RESPONDENT] 2.2.1 Testimonies of Ms. Antonella and Mr. Pique are Admissible and Credible: The accused-appellant picked up the deceased from his home and they went to Bob’s Butchery where they were seen by Ms. Antonella.^23 When the accused is known to the witness and is identified by the witness in Court, a TIP is not essential.^24 Given that Ms. Antonella was a long serving waitress at Bob’s Butchery and it was the favourite eatery of the appellant and the deceased, it can be concluded that the appellant and the deceased were known to the witness and thus a TIP was not essential in her case.^25 The appellant and the deceased left Bob’s Butchery and were spotted on the appellant’s bike by the toll booth operator Mr. Pique en route to the deceased’s home.^26 A TIP is required only when the witness does not have a particular reason to remember the appellant.^27 Presently, Mr. Pique deposed that he particularly recalled seeing them because they were not wearing helmets.^28 Thus, it can be concluded that Mr. Pique had a specific reason to remember the appellant and a TIP was not required in his case. Therefore, the credibility of these two witness testimonies cannot be suspected on the ground that a TIP was not held. 2.2.2 Mr. Chancerton’s Testimony is Credible: Mr. Chancerton witnessed the appellant and the deceased at the same isolated place where the body of the deceased was discovered.^29 Mr. Chancerton’s dock identification,^30 is corroborated by the receipts of the medical store he was visiting that night.^31 This confirms that the appellant was in the company of the deceased as he did not immediately leave for his house. The Supreme Court observed that the court-identification (dock) of the accused without TIP is admissible if the court finds it trustworthy.^32 The trustworthiness of Mr. Chancerton’s testimony is established by the fact that he is an independent witness having no affinity with the deceased and no animosity towards the appellant. Therefore, there is no reason to suspect any falsity in this witness’s statement or identification of the accused by way of any personal inducement or (^23) Statement of Facts (n 11) 1-2 para 5. (^24) State Of Himachal Pradesh v. Prem Chand (2002) 10 SCC 518. (^25) Statement of Facts (n 11) 3 para 11(vi). (^26) Ibid. (^27) Malkhansingh & Ors v. State of MP (2003) 5 SCC 746. (^28) Statement of Facts (n 11) 5 para 12(iv). (^29) ibid (^30) The K.K. Luthra Memorial Moot Court 2022, Queries and Clarifications, A21. (^31) Statement of Facts (n 11) 4 para 11 (viii). (^32) Musheer Khan v State of M.P. (2010) 2 SCC 748.
[ MEMORIAL for RESPONDENT] appellant, his failure to provide a reasonable explanation forms an additional link in the chain of events towards the establishment of his guilt.^42 2.3.2 The Appellant Failed to Establish the Plea of Alibi The Supreme Court observed that the conviction of the appellant last seen with the deceased can be upheld if the accused-appellant is unable to offer any explanation as to circumstances in which he departed from the company of the deceased and there is motive to commit the crime.^43 The motive was established under Part 2.1. Subsequently, The burden of proving the circumstances in which the appellant departed the company of the deceased is on the appellant under Section 106 of the FEA.^44 The appellant took the plea of alibi^45 and stated that he had dropped Lionel at an isolated spot a few blocks from his home and was in a rush to return home before the closure of the main entry gate of his residential complex.^46 Where the plea of alibi is taken, the burden of proof is on the accused to prove his innocence using the plea^47 and it must be proved with absolute certainty that the accused was absent from the crime scene.^48 Presently, apart from his own statement, the accused-appellant provided no corroborating evidence to suggest that he was absent from the crime scene.^49 In fact, no evidence was led by the appellant in the Trial proceedings.^50 Where the plea of alibi is not proved the Court is entitled to draw adverse inference against the appellant.^51 The plea of alibi has not been established with absolute certainty and thus, the appellant has failed to prove the circumstances in which he departed the company of the deceased. The failure of the accused-appellant to provide a reasonable explanation under Section 106 forms a strong presumption against him^52 and entitles the court to draw an adverse inference against the appellant on these grounds.^53 2.3.3. The Present Circumstances Do Not Amount to Fleeting Glance (^42) Bappa Banerjee v. State of West Bengal (2011) 12 SCC 554; State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 ; Evidence Act (n 14 ) s 106. (^43) Surajdeo Mahto v. State of Bihar (2021) SCC OnLine SC 542. (^44) Ammu v. State of Maharashtra (2003) 8 SCC 93. (^45) Evidence Act (n 14 ) s 11. (^46) Statement of Facts (n 11) 2 para 9. (^47) Satya Vir v State AIR 1958 All 746; State of Haryana v. Sher Singh (1981) 2 SCC 30; Shaikh Sattar v. State of Maharashtra (2010) 8 SCC 430; Evidence Act (n 14 ) s 103. (^48) State of Maharashtra v. Narsingrao Gangaram (1984) 1 SCC 446. (^49) Statement of Facts (n 11) 6, para 13. (^50) ibid. (^51) Jitender Kumar v. State of Haryana (2012) 6 SCC 204. (^52) State of Rajasthan v. Kashi Ram (2006) 12 SCC 254; Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681. (^53) Satpal Singh v. State of Haryana (2018) 6 SCC 610.
[ MEMORIAL for RESPONDENT] The Court of Appeal in the United Kingdom case of R v Dossett (2013)^54 has given a narrow interpretation of fleeting glance. It held that, taking in a person’s features was an instinctive process and was separated from conscious mental processes.^55 It was also held that it is not necessary to look at an individual’s face for long to gauge their essential features, especially when there is good reason for it to be imprinted on the mind of the observer.^56 The quality of such an observation was held good enough to constitute an identification.^57 The loud heated conversation between the two boys^58 acted as a good enough reason to draw Mr. Chancerton’s attention, at that late hour of the night, to the isolated spot where the appellant and the deceased were standing and led him to accurately take in their essential features such as age and gender^59. Thus, his identification of the appellant by Mr. Chancerton cannot be classified as a fleeting glance and is an independent witness as conclusively established circumstances. 2.4 THAT THE ACCUSED HAD INTENTION TO MURDER THE DECEASED Intention is the purpose or design with which an act is done.^60 In R v Moloney , it was observed that the foresight of the consequences of the actions by the accused can be admitted to infer intent of the offender.^61 In the present case, the post mortem report indicated that the deceased died as a consequence of a head injury. An injury on the head of the deceased signified that the appellant was in-fact aware of his actions because the nature of the injuries found on the body of the deceased are of determinative significance.^62 The Supreme Court reiterated that the nature of weapon used and vital part of the body where the injury was caused prove beyond reasonable doubt the intention of the accused to cause death of the deceased.^63 It was held that when death is caused by a single blow on vital part of the body, the accused can be charged with murder under the Penal Code.^64 Such as in the instant case, the injury on the head of the deceased implied the intention to murder the deceased. To this extent, it is established that the appellant caused a head injury to the deceased with an intention of causing murder. (^54) R v. Steven Edward Dossett [2013] EWCA Crim 710. (^55) ibid. (^56) ibid. (^57) ibid. (^58) Statement of Facts (n 11) 4 para 11(viii). (^59) Statement of Facts (n 11) 4 para 11(viii). (^60) CJ M Monir, Commentary on the Indian Evidence Act, 1872 (14th edn, Universal Law Publishing 2021) 589. (^61) R v Moloney [1985] AC 905 (HL). (^62) Krishna Mahadev Chavan v State of Maharashtra 2021 SCC OnLine Bom 191. (^63) Arun Raj v Union of India (2010) 6 SCC 457. (^64) State of Madhya Pradesh v Kalicharan & Ors (2019) 6 SCC 809.
[ MEMORIAL for RESPONDENT] With respect to Section 174, the term ‘there’ in Subsection 1 suggests that the inquest must be held at the spot where the dead body is found.^74 The investigating officer explained that no public persons were available given that the memos were prepared at night.^75 Given that the spot where the body was recovered was an isolated area^76 and the memo was prepared at night,^77 it is a reasonable possibility that no individual in the locality could make themselves available for this purpose. Public witnesses may not be joined but the effort to join them must be there^78 and the explanation of the officer implies that there were attempts made to join independent witnesses but there was no public person available given the lateness of the hour. Moreover, in a country such as Killdare, with one of the lowest populations in the world,^79 it is presumably difficult to find one witness, let alone two, that too at night time. Any defect in the investigation or omission on part of the investigating officer, cannot be used to the benefit of the accused.^80 The Court cannot begin with the presumption that the police findings are unreliable, instead, the opposite should be presumed.^81 It is also presumed that the official acts of police have been regularly performed^82 and in the event that there is an irregularity or illegality in the investigation, it does not cast doubt on the alleged hypothesis nor can the trustworthy and reliable evidence be set aside to record acquittal on that account.^83 Additionally, with respect to Section 100(4), the presumption that a person acts honestly extends to police officers as well^84 and the case cannot be doubted on the sole ground that no public witness was joined.^85 It is also submitted that such an investigative defect constitutes a harmless error under the harmless error doctrine.^86 In American jurisprudence, a harmless error under the doctrine is one which may be a valid error of law but is not sufficient for the appellate court to reverse the original verdict in favour of the losing party alleging the error.^87 The test was laid down by the Supreme Court of Wyoming to enquire whether a reasonable possibility exists that in the absence of the error, the verdict might have been more favourable (^74) Vide Kodali Puranchandra Rao v. Public Prosecutor, A.P. (1975) 2 SCC 570. (^75) Statement of Facts (n 11) 5 para 12(viii). (^76) Statement of Facts (n 11) 2 para 8. (^77) Statement of Facts (n 11) 5 para 12(viii). (^78) Sadhu Singh v. State of Punjab (2009) 13 SCC 776. (^79) Statement of Facts (n 11) 1 para 1. (^80) Sahabuddin & Anr v. State Of Assam (2012) 13 SCC 213. (^81) Deyyala Suryanarayana Suribabu v. The State of A.P. (2021) AP HC Cri App 1035 of 2021. (^82) ibid. (^83) State of Rajasthan v. Kishore (1996) SCC (Cri) 646. (^84) Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217. (^85) Appabhai and Anr. v. State of Gujarat AIR 1988 SC 696. (^86) Jones v. State (1987) 735 P.2d 699, 703. (^87) ibid.
[ MEMORIAL for RESPONDENT] to the appellant.^88 Thus, in the present case, the absence of independent witnesses during the preparation of the memos is harmless and not a substantive defect in the investigation that is sufficient to cast doubt on the recovery. Consequently, the same would not materially alter the credibility of the evidence. 2.7 THE RECOVERY OF PACK OF ‘LUCKY STRIKE’ CIGARETTES FROM APPELLANT’S ROOM IS RELEVANT On the night of the incident, the deceased and the appellant, on the appellant’s suggestion, stopped in an isolated area a few blocks away from the deceased’s home to smoke cigarettes^89 It is a well-known fact that the deceased used to carry a rare^90 and imported^91 cigarette packet called Lucky Strike. During the search conducted at the appellant’s residence, the Police recovered this pack of Lucky Strike cigarettes which was found to be carefully hidden in a chest in his room.^92 While the deceased’s parents deposed that all the belongings of the deceased appeared to be on him,^93 the fact that the appellant and deceased stopped in an isolated area before the deceased’s house to avoid being seen smoking by the deceased’s parents establishes that the parents of the deceased were not aware of his smoking habit and could not have reasonably pointed out that the packet of Lucky Strike was not on the body of the deceased. Under Section 8 of the FEA, any property acquired by the accused-appellant in the commission of the crime constitutes subsequent conduct and is thus a relevant fact.^94 Given that the cigarette packet recovered was rare and imported it cannot be inferred that someone in the same debt- ridden^95 position as the appellant could afford to purchase it himself. It also follows from the facts that the last time the accused-appellant and deceased smoked together was the night of the murder.^96 The recovery of the cigarettes in the possession of the appellant being in such close proximity to the last time the appellant and the deceased smoked together suggests that the cigarettes changed hands the last time the appellant was in the company of the deceased, that is, the night of the murder. The subsequent conduct^97 of the appellant hiding the cigarettes, (^88) ibid. (^89) Statement of Facts (n 11) 2 para 6. (^90) Statement of Facts (n 11) 3 para 11(iv). (^91) Statement of Facts (n 11) 2 para 6. (^92) Statement of Facts (n 11) 3 para 11(v). (^93) Statement of Facts (n 11) 2, para 8. (^94) Evidence Act (n 14 ) s 8 illustration (i). (^95) Statement of Facts (n 11) 1 para 4. (^96) Ibid at 2 para 5. (^97) Evidence Act (n 14 ) s 8.
[ MEMORIAL for RESPONDENT] questioning and does not inherently or implicitly lead to the conclusion that it was shared out of compulsion.^103 There is no evidence on record to indicate that the nature and duration of the police questioning was such that it excited hope or fear in the appellant to make involuntary statements that he would have remained silent to otherwise and was consequently, oppressive.^104 Therefore, the appellant cannot be said to have been compelled or deprived of his free and voluntary agency of refusing to answer merely because questions were posed to him by the Police in custody. 2.9 NO INFERENCE ABOUT THE PRESENCE OF ANOTHER PERPETRATOR CAN BE ESTABLISHED In his deposition, the investigating officer stated that petty crimes have been on the rise in Killdare.^105 Petty crimes, however, by definition, are minor crimes^106 such as theft, trespassing or jaywalking.^107 The present petition is on the atrocious crime of murder and thus cannot be relevant for being the occasion, cause or effect of the fact in issue. Moreover, the presence of the accused-appellant in the company of the deceased at the scene of the crime has been established beyond all reasonable doubt by the respondents and does not leave any room for the possibility that a third party could have intervened and caused the death of the deceased. The respondents allege that given the close proximity of time, motive and the kind of injury that caused the deceased's death point towards the culpability of the appellant. In the given facts and circumstances, it would amount to an imaginary doubt to be casted upon the chain of events. The presence of another criminal is also not corroborated because all the belongings appeared on the deceased indicating that he did not encounter any other criminal.^108 The culpability of the appellant is further corroborated by his intention as established under 2.4. III. THAT THE ESSENTIAL INGREDIENTS OF SECTIONS 299/300 AND 201 OF THE FRISK PENAL CODE HAVE BEEN MET IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE It is submitted that the accused-appellant can be charged with the offence of committing voluntary culpable homicide amounting to murder and causing disappearance of evidence. The (^103) ibid_._ (^104) R v. Devibe [2021] NICA 7; R v. Brown [2012] NICA; R v. Corr [1968] NI 193. (^105) Statement of Facts (n 11) 5 para 12(viii). (^106) ‘petty crime’ (Collins English Dictionary) <www.collinsdictionary.com/dictionary/english/petty-crime> accessed 25 November 2021. (^107) Pawan Kumar v. State of Haryana (1996) 4 SCC 17. (^108) Statement of Facts (n 11) 3.
[ MEMORIAL for RESPONDENT] essential ingredients enlisted under Section 299, 300, and 201 of the FPC have been met in the present facts and circumstances. 2.10 3.1 THAT THE ESSENTIAL INGREDIENTS OF SECTION 299 HAVE BEEN Homicide is defined as the killing of a human being by another human being.^109 Under Section 299 of the FPC, homicide becomes ‘voluntary culpable’ when, (i) a human being causes another human being’s death; (ii) by committing or omitting an act which he is legally bound to do; (iii) with the intention of thereby causing or knowledge that he is likely to cause the death of any person.^110 In the present case, the post mortem report confirmed that Lionel, the deceased, died after being hit on his head with a blunt object.^111 3.1.1 That the Appellant Had Pre-requisite Mens Rea Towards Committing the Crime Mens Rea is the mental element of the crime that formulates the whole essence of the crime.^112 The fact in issue entails the commission of murder with no direct evidence. To this extent, the respondent has conclusively established that:
- The appellant had a Motive to Commit Murder: The motive plays an important role in the present facts and circumstances. The motive as a ‘drive force’ for the actions of the appellant has been established by placing reliance upon the fact that he was indebted to the deceased and that he was jealous of the deceased. The testimonies of Mr. Kun, Mr. Sergio and Coach Jose became relevant under Section 7 of the FEA which formulated motive under Section 8 of the FEA.
- The Appellant was Last Seen with the Deceased: It has been established through close proximity of time and place that the appellant and the deceased were last seen together by Mr. Chancerton. The testimony of Mr. Chancerton was corroborated by the dock- identification. Further, it was conclusively established that it was not a mere fleeting glance.
- The Appellant had Intention to Commit Murder: It was established that the appellant had intention to murder the deceased. The criminal intent was established through the injury as the deceased died after being hit on the vital body organ, head. The intention (^109) Halsbury’s Laws of England (4th edn, 2005) vol 2 para 1151. (^110) Rampal Singh v State of U.P. (2012) 8 SCC 289; The Frisk Penal Code 1860 s 200. (^111) Statement of Facts (n 11) 3 para 11(iii). (^112) Halsbury’s Criminal Law (5th edn, 2020) vol 21.
