6THFYLC
– RANKA NATIONAL MOOT COURT COMPETITION, 2016
BEFORE
THE
HON’BLE
SUPREME COURT OF INDIA
Criminal
Appellate Jurisdiction
Under
Article 136 of Constitution of India
IN
THE MATTER OF
State of Rajasthan
& Mr. Vikram Gupta………………………….…Appellants
Versus
Mr. Dinesh Goyal, Mrs. Shalini
Goyal, and Mr. Suresh Goyal…...Respondents
UPON
SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF
HONOURABLE SUPREME COURT OF INDIA
TABLE OF CONTENTS
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ABBREVIATIONS ………………………………………………………………
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4
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INDEX OF AUTHORITIES …………………………………………………….
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5
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STATEMENT OF JURISDICTION…………………………………………….
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8
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SYNOPSIS OF FACTS…………………………………………………………..
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9
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STATEMENT OF ISSUES………………………………………………………
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12
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SUMMARY OF ARHUMENTS ………………………………………………...
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ARGUMENTS ADVANCED…………………………………………………….
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1. THE
SPECIAL LEAVE PETITION FILED BY STATE OF RAJASTHAN AND Mr. VIKRAM GUPTA IS
NOT MAINTAINABLE IN HON’BLE SUPREME COURT OF INDIA
2.
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15
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1.1
There wasn’t any illegality or any
irregularity of procedure or violation of the principles of natural justice
resulting in absence of a fair trial or gross miscarriage of justice
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15
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1.2 This case is not an exceptional case nor
a suitable case for Supreme Court to interfere
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17
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2. Mr.
Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal are not liable for
offences u/s 302, 304-B, 498-A, 201 r/w sec.-34 of I.P.C.
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21
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2.1
The essential ingredients of sec. 304-B, 498-A r/w sec.-34 of I.P.C. are not
fulfilled to hold Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal
guilty for offences under these sections
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21
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2.1.1. There was
no Dowry demand by the accused ……………………………
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2.1.2. The deceased Mrs. Sharda Goyal was
not subjected to cruelty and harassment by her husband, mother-in-law, and
father-in-law for demand of dowry neither after marriage nor soon before her
death.
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23
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2.1.3 The respondents have not committed
the dowry death of the deceased.
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25
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2.2 The respondents are not liable for murder
of deceased Mrs. Sharda Goyal u/s 302 r/w Sec. – 34 of I.P.C.
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34
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PRAYER……………………………………………………………………………..
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ABBREVIATIONS
USED
Sec. : Section
AIR : All India
Report
Art. : Article
Co. : Company
Hon’ble : Honorable
Ltd. : Limited
SC : Supreme Court
SCC : Supreme Court
Cases
I.P.C. : Indian Penal
Code
Cr.P.C. : Criminal
Procedure Code
u/s : under section
r/w : read with
Yrs. : Years
v.
/ vs. : Versus
J.J. : Juvenile
Justice
Cr.L.J. : Criminal Law
Journal
& : and
Pg.
: Page
Ors. : Others
Anr. : Another
Edn. : Edition
INDEX OF AUTHORITIES
STATUTES:
§ The
Indian Penal Code, 1860
§ Code
of Criminal Procedure, 1973
§ The
Indian Evidence Act, 1860
§ The
Constitution of India, 1950
§ Dowry
Prohibition Act, 1961
§ Domestic
Violence Act
CASES
REFFERED:-
1. Ashok
Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335.
2. Pritam
Singh v. State,
AIR 1950 SC 169.
3. Nawab
Singh v. State of U.P.,
AIR 1954 SC 278.
4. Sadhu
Singh v. State of Pepsu, AIR 1954 SC 271.
5. Habeeb
Mohammed v. Sate of Hydrabad,
AIR 1954 SC 51.
6. Nazuk
Jahan v. Addl. Distt. Judge; AIR 1981 SC 1549.
7. Ibrahim
Mallory Dillet, Re,
(1887) 12 SC 1549.
8. Sultan
Ahmad v. State of Bihar,
AIR 1975, SC 1828.
9. Haripada Dey v. State of W.B., AIR 1956 SC 757.
10. Raghunath
v. State of Haryana, AIR 2003 SC 165.
11. Musheer
Khan v. State of Madhya Pradesh, AIR 2010 SC 762 (Para 56).
12. Alamelu
v. Sate,
AIR 2011 SC 715.
13. Narendra
Pratap Narain Singh v. State of Uttar Pradesh, AIR 1991 SC 1394.
14. D.C.
Mills v. Commissioner of Income Tax, AIR 1955 SC 55.
15. State
of Madhya Pradesh v. Orient Paper, (1990) 1 SCC 176, para 2.
16. Radha
Mohan Singh @ Lal Saheb v. State of Uttar Pradesh, AIR 2006 SC 951.
17. Subedar v. State of U.P., AIR
1971 SC 125.
18. Kaliyaperumal v. State of Tamil Nadu, AIR
2003 SC 3828.
19. Dhanpal v. State by Public Prosecutor,
Madras,
(2009) 10 SCC 401.
20. Ramji Dayawala and Sons (P) Ltd v. Invest
Import, AIR 1981
SC 2085.
21. Bishwanath
Rai v. Sachhinand Singh.
AIR 1971 SC 1949.
22. Mohd. Ikram Hussain v. State of Uttar
Pradesh,
AIR 1964 SC 1625.
23. Birendar Poddar v State of Bihar,
(2011) 6 SCC 350.
24. G.V. Siddaramesh v. State of Karnataka, (2010)
3 SCC 152
25. Chandu Bhai Shana Bhai Parmar v. State of
Gujrat, AIR 1982
SC 1022.
26. Navaneetham
v. S.S. Jayarama Pillai,
1996 AIHC 1849.
27. Mani Ram v. State,
AIR 1993 SC 2453.
28. Ashok Kumar Das v. Kalpana Das
29. Madan Gopal v. Naval Dubey, (1992)
3 SCC 204.
30. Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484
31. Jaspal v. State, AIR
1979 SC 1708.
32. Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.
33. Baldev
Singh v. State of Haryana, (2008)
14 SCC 768.
34. State
of U.P. v. Ashok Kumar Srivastava,
[1992] 1 SCR 37.
35. Padala Veera Reddy v. State of A.P. &Ors, AIR 1990
SC 79.
36. Nand Kishore v. State of Maharashtra, 1996
(3) Crimes 126.
37. Hans
Raj v. State of Punjab, AIR
2000 SC 2324.
38. Mungeshwar
Pd. Chaurasia v. State of Bihar, AIR
2002 SC 2531
39. Bhakkar
Ram v. State of Rajasthan, 1995
Cr LJ 1345 (Raj.)
40. Rajnesh
Tandon v. State of Punjab, 1995
SCC (Cri) 817.
41. Rajibir v. State of Haryana, AIR
2011 SC 568.
42. Jasvinder Saini &Ors. v. State (Govt. of
NCT of Delhi), (2013) 7
SCC 256
43. WaikhomYaima Singh v. State of Manipur, 2011 Cr LJ
2673.
44. Kanchy Komuramma v. State of A.P., (1995) Supp. 4 SCC 118.
45. Adevappa Nagappa Anaglokar v. State of Karnataka, 1998 Cr LJ 584 (kant.)
46. Laxmi v. Om Prakash, AIR
2001 SC 2283.
47. Vithal Sadashiv Gaikwad v. State of Maharastra, 1994 Cr LJ 2035 (Bom.)
48. Vithal Somenath kore v. State of Maharastra, AIR 1978 SC
519.
49. Tarachand
v. State of Maharashtra, AIR 1962 SC 130.
50. Rasheed Beg v. State of Madhya Pradesh, AIR 1974 SC 332.
51. Ram
Manorath v. State of U.P., 1981 SCC (Cr) 581.
52. Nanhar v. State of Haryana, JT 2010 (6) SC 196.
53. State
of Haryana v. Ved Prakash,
1994 Cr LJ 140 (SC).
54. Wakkar v. State of Uttar Pradesh, (2011) 3 SCC
306.
55. State
of MP v. Dharkola 2005 CriLj 102 (SC)
56. State
of Kerala v. Bahuleyan
AIR 1987 SC 482
57. State of U.P. v. Ashok Kumar Srivastava, [1992]
1 SCR 37.
58. Hardayal
and Prem v. State of Rajasthan, (1991) Cr. LJ 345 (SC).
59. T.Subramanian
v. State of Tamil Nadu,
(2006) 1 SCC 401.
60. Kali
Ram v. State of H.P. (1973) 2 SCC 808.
Books Referred:
·
P.M.
Bakshi, THE CONSTITUTION OF INDIA, 12th Edition, Universal Law Publishing Co Pvt. Ltd., 2013
·
V.N.
Shukla, THE CONSTITUTION OF INDIA, 9th Edition, Eastern Book Company
·
Ratanlal&Dhirajlal,
THE INDIAN PENAL CODE, 36th
Edition, Lexis Nexis Publications.
·
R.V.
Kelkar, CRIMINAL PROCEDURE, 5th Edition, Eastern Book Company.
·
Ratanlal&Dhirajlal,
THE LAW OF EVIDENCE, 24th
Edition, Lexis Nexis Publications.
·
CRIMINAL
MANNUAL, Universal Law Publishing Co Pvt. Ltd., 2013
·
Professional
book publishers, Dowry Prohibition Act, 1961,
Websites Referred:
Ø www.lexisnexis.com
Ø www.judis.nic.in
Ø www.manupatra.com
STATEMENT
OF JURISDICTION
The
Appellants Mr. Vikram Gupta and State of Rajasthan have filed a Special Leave
Petition under Article 136 of Constitution of India in Hon’ble Supreme Court of
India against the judgment and order passed by Hon’ble High Court of Rajasthan.
The
Hon’ble Supreme Court issued a show cause notice to all the accused that why
appeal be not accepted and imprisonment be enhanced.
The
present memorandum sets forth the facts, contentions and arguments.
SYNOPSIS
OF FACTS
1.
The deceased Mrs. Sharda Goyal
D/O Mr. Vikram Gupta married to Mr. Suresh Goyal S/O Mr. Dinesh Goyal on
17.07.2012. Both of them studied M.B.A. in same college where they fell
in love with each other. Mr. Suresh himself suggested name of Sharda to his
father for Marriage.
2.
Mr. Dinesh Goyal is a high profile
industrialist and Mr. Vikram Gupta is a rich businessman, having chain
of departmental stores. Both the families knew each other.
3.
According to prosecution Mr. Dinesh
Goyal demanded dowry of substantial value, commensurate with his social status
and also demanded to spend minimum of Rs. 1 crore on the wedding apart from
dowry. On 17.07.2012, the day of marriage agreed dowry was paid to
entire satisfaction of the Goyal Family.
4.
On 18th July 2012,
Wedding reception was arranged by Mr. Dinesh Goyal on a very grand and
lavish scale in the presence of more than 5000 attendants which included
Ministers, Senior Officials et. al. The Couple left for honeymoon to Switzerland
and other European Countries for a Fortnight.
5.
According to prosecution Mrs.
Sharda Goyal did not receive proper treatment from her in laws. Mrs. Shalini
Goyal, mother-in-law of Mrs. Sharda made continuous Dowry demand for Mercedes
Benj classic car and for F.D. of Rs. 1 Crore. However a F.D. of Rs. 25 Lakh in
the name of Mrs. Sharda Goyal was given by Mr. Vikram Gupta.
6.
By grace of god, Mrs. Sharda gave
birth to a baby girl. The Goyal family was not happy and was cursing Mrs.
Sharda Goyal. She was cursed, rebuked and sent to parental house. Mrs. Sharda Goyal
was maintaining a daily diary noting every incident minutely.
7.
On 20.05.2015 Suresh Goyal
reached his in-laws. He sought consent of Sharda and she returned to Goyal
Palace.
8.
On 24.05.2015 Mr. Dinesh
Goyal purchased Organophosphorus sold under trade name of “NUVAN”
from P.W.-1 – Mr. Sanjay Kumar, a shopkeeper on the pretext that he
required the same to kill the flies.
9.
On 25.05.2015, according
to allegations of prosecution Mrs. Shalini Goyal forcibly administered poison
to the deceased Mrs. Sharda Goyal to kill her. Mr. Suresh also held the body of
deceased physically and forced her to drink. During the course of
administration of poison deceased struggled as such sustained injuries on her
face, lips and neck.
10.
Om Prakash, PW-4 informed the
police at about 4.30 a.m. On that Biru Ahmad, PW-7 entered the
information in the daily diary and proceeded towards the spot. He found the
deceased lying on the bed in an unconscious position. Dr. O. P. Chaudhary,
PW-8, examined the deceased at about 6 a.m. and noted the patient was
semi-conscious with history of consumption of poisonous substance. He
administered the initial treatment. He carried out Gastric Lavage first with
saline solution and then with ordinary tap water. Thereafter he referred the
deceased at S.M.S. Hospital, Jaipur which was informed to the police. She died
at the Hospital.
11.
Post mortem was conducted by Dr.
Piyush Kapila, PW-9 in association with Dr. V. K. Mishra. They opinioned
that death of deceased was caused due to asphyxia, secondary to organo phosphorus
poisoning.
12.
Mr. Vikram Gupta,
father of deceased lodged a report at the Police Station mentioning the
harassment caused by the three accused to the deceased for dowry. He stated
that all the three accused namely Shri Dinesh Goyal, Smt. Shalini Goyal and
Shri Suresh Goyal had forcibly administered poison with intention to kill his
daughter for non-fulfillment of further demand of dowry. Death had occurred due
to mal-treatment by the accused and action be taken against them. FIR No.
466 of 2015 was registered under sections 498A, 304B, and 305/34 of
the Indian Penal Code.
13.
The police found the diary which
was exhibited and relied for domestic violence & dowry demand. Charges
under Sections 498A and 304B read with Section 34 of IPC were framed
against the accused persons. Charges were also framed under the Dowry
Prohibition Act, 1961 for demand of Car and Fixed Deposit.
14.
Accused Shri Dinesh Goyal in his
statement under section 313 Cr. PC did not deny the factum of the
deceased having died due to poison. It was stated by him that the deceased had
disclosed to him that she had consumed some drugs and had asked him to give her
salty water. Deceased was under convulsion due to some drug. He had given her
water to vomit. He had firstly and then to S.M.S. Hospital called Dr. O.P.
Chowdhury. Deceased was a sensitive lady. His relationship with the deceased
was cordial. He examined 3 witnesses in defense, who stated that Shalini Goyal
was happy in Goyal House and their relations were cordial and she was treated
as a daughter.
15.
Finding of the Trial
Court:The trial court acquitted the mother-in-law on the
plea there is no direct evidence and she is woman. Shri Suresh Goyal was also
acquitted being youth of 30 years. However, convicted the father-in-law Mr.
Dinesh Goyal for commission of offence under section 302 IPC and awarded
imprisonment for 7 years with no fine.
16.
Findings of the Hon’ble
Rajasthan High Court:
The state and
Mr. Vikram Gupta filed an appeal before Hon’ble High Court pleading life
imprisonment for Dinesh Goyal, imprisonment for 7 years for Mrs. Shalini Goyal,
imprisonment for 5 years for Mr. Suresh Goyal. Mr. Dinesh Goyal also filed an
appeal against conviction.
The
Hon’ble High Court acquitted Mr. Dinesh Goyal on the following grounds-:
Ø
Chain of circumstances is not complete
so as to unerringly point to the guilt of accused.
Ø
The possibility of victim committing suicide
cannot be ruled out.
Ø
The prosecution has failed to prove that
poison was in possession of the accused.
Ø
The Trial Court did not convicted the
accused u/s 304-B & sec.-498A.
Ø
The victim did not named the accused as
responsible for administering poison.
Ø
When the two views are possible, one
favourable to the accused is required to be adopted.
Appeal before Hon’ble Supreme Court
The State of Rajasthan and Mr. Vikram
Gupta filed an appeal under Article 136 of Constitution of India in Hon’ble
Supreme Court against the order and judgment of Hon’ble High Court of
Rajasthan. The appellants plead for conviction of Mr. Dinesh Goyal, Mr. Suresh
Goyal and Mrs. Shalini Goyal u/s 302,304-B, 498A, 201 r/w sec.-34 of I.P.C
STATEMENT
OF ISSUES
1.
WHETHER THE SPECIAL
LEAVE PETITION FILED BY STATE OF RAJASTHAN AND Mr. VIKRAM GUPTA IS MAINTAINABLE
IN HON’BLE SUPREME COURT OF INDIA?
2.
Whether Mr. Dinesh
Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal are liable for offences u/s 302,
304-B, 498-A, 201 r/w sec.-34 of I.P.C.?
Ø Whether
all the accused persons are liable for dowry death of deceased u/s 304B and
498A of I.P.C.?
Ø Whether
the act of accused persons was in furtherance of common intention according to
Sec. 34 of I.P.C?
Ø Whether
accused persons are liable u/s 201 for misapprociation of evidences?
Ø Whether
the accused persons are liable for murder of deceased Mrs. Sharda Goyal u/s 302
of I.P.C?
SUMMARY
OF ARGUMENTS
1.
THE SPECIAL LEAVE
PETITION FILED BY STATE OF RAJASTHAN AND Mr. VIKRAM GUPTA IS NOT MAINTAINABLE
IN HON’BLE SUPREME COURT OF INDIA
It is humbly
submitted that all the appellants were given fair trial, they were also given
fair opportunity to respond to the contentions against them.
It is well settled
practice of Supreme Court that except where there has been a illegality or any
irregularity of procedure or violation of the principle of natural justice
resulting in the absence of a fair trial or gross miscarriage of justice, the Supreme
Court does not permit a third review of evidences. Thus, in this case there is
no need of third review of evidences as the judgment of Hon’ble High Court is
fair, just and according to law.
In
this case no special or exceptional circumstances exists, that sufficient or
grave injustice have been done and the case lacks sufficient gravity to warrant
a review of decision appealed against.
THUS
SPECIAL LEAVE PETITION FILED BY STATE OF RAJASTHAN AND Mr. VIKRAM GUPTA IS NOT
MAINTAINABLE IN HON’BLE SUPREME COURT OF INDIA
2.
Mr. Dinesh Goyal, Mr.
Suresh Goyal and Mrs. Shalini Goyal are not liable for offences u/s 302, 304-B,
498-A, 201 r/w sec.-34 of I.P.C.
· There
is no evidence that there was dowry demand from the deceased.
· The
deceased Mrs. Sharda Goyal was not subjected to cruelty and harassment soon
before death.
· The
trial court and High Court of Rajasthan righty acquitted the respondents from charges
u/s 304B as the essential ingredients to raise a presumption of dowry death u/s
113B of Indian Evidence Act were not fulfilled.
· The
respondents did not had mens rea to commit the murder of deceased neither any
actus reus was done by them towards commission of alleged offences.
· The
dying declaration of deceased is inadmissible in court of law as it is
uncertain, unclear, leads to more than one inferences, the deceased was not in
fit medical condition to make such declaration. Thus it cannot be the ground
for conviction of Mr. Dinesh Goyal u/s 302 of I.P.C., The Hon’ble High Court of
Rajasthan rightly acquitted him from charges u/s 302 for the murder of
deceased.
· In
this case chain of circumstantial evidences is not so complete as to unerringly
point towards the guilt of the accused. It is humbly submitted that when two
views are possible on the same set of evidences, the view favouring the
innocence of the accused must be adopted.
ARGUMENTS
ADVANCED
1.
THE SPECIAL LEAVE
PETITION FILED BY STATE OF RAJASTHAN AND Mr. VIKRAM GUPTA IS NOT MAINTAINABLE
IN HON’BLE SUPREME COURT OF INDIA
Ø Art.
136 of Constitution Of India – Special leave to appeal by the Supreme Court
(1) Notwithstanding
anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the
territory of India.[1]
The
State of Rajasthan and Mr. Vikram Gupta filed an appeal under Article 136 of
Constitution of India in Hon’ble Supreme Court against the judgment and order
of Hon’ble High Court of Rajasthan. The appellants pleaded for conviction of
Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal u/s 302,304-B, 498A,
201 r/w sec.-34 of I.P.C.
It is humbly submitted that this appeal
from the judgment of Hon’ble High Court of Rajasthan shall not be allowed by
the Hon’ble Supreme Court because-:
1.2 There
wasn’t any illegality or any irregularity of procedure or violation of the
principles of natural justice resulting in absence of a fair trial or gross
miscarriage of justice.
It is humbly submitted
that the State of Rajasthan and Mr. Vikram Gupta filed an appeal before Hon’ble
High Court pleading life imprisonment for Dinesh Goyal, imprisonment for 7
years for Mrs. Shalini Goyal, imprisonment for 5 years for Mr. Suresh Goyal.
Mr. Dinesh Goyal also filed an appeal against conviction.
The
Hon’ble High Court acquitted Mr. Dinesh Goyal on the following grounds-:
Ø
Chain of circumstances is not complete
so as to unerringly point to the guilt of accused.
Ø
The possibility of victim committing
suicide could not be ruled out. PW – 8 Dr. O.P. Chaudhary stated that he could
not say if whether the deceased had consumed poison herself to commit suicide
or not. PW – 9 Dr. Piyush Kapila also said that he could not rule out the
possibility of victim committing suicide.
Ø
Possibility of injuries caused by
convulsions was strengthened from the fact that number of ante-mortem injuries
had increased from the period the victim was examined initially and the post
mortem was conducted.
Ø
The prosecution had failed to prove that
poison was in possession of the accused.
Ø
The Trial Court did not convict the
accused u/s 304-B & sec.-498A.
Ø
There was no direct evidence of cruelty
and harassment with deceased in connection with demand of dowry. The Trial
Court also acquitted all the respondents from charges u/s 304B and 498A.
Ø
Accused would not choose poison like
organo phosphorous i.e. NUVAN a pesticide which has a pungent smell like
kerosene to kill the victim. He would have purchased better poison.
Ø
The clothes of deceased were drenched;
it means accused had administered salty water in order to enable the victim to
vomit. This indicates that gastric lavage was carried out by the accused to
save the deceased. He had accompanied her to hospital.
Ø
The victim did not name the accused as
responsible for administering poison. The alleged act of lifting the hands
towards respondents cannot be admissible as a Dying Declaration.
Ø
When the two views are possible, one
favourable to the accused is required to be adopted. Hence, the conviction was
set aside.[2]
It is humbly submitted
that all the appellants were given fair trial, they were also given fair
opportunity to respond to the contentions against them.
It is well settled
practice of Supreme Court that except where there has been a illegality or any
irregularity of procedure or violation of the principle of natural justice
resulting in the absence of a fair trial or gross miscarriage of justice, the Supreme
Court does not permit a third review of evidences. Thus, in this case there is
no need of third review of evidences as the judgment of Hon’ble High Court is
fair, just and according to law.
1.2 This
case is not an exceptional case nor a suitable case for Supreme Court to
interfere.
As held in the
case of Ashok Nagar Welfare Association v. R.K. Sharma[3]
“It is well settled that article 136 does not confer a right of appeal on
any party, but it confers a discretionary power on the Supreme Court to
interfere in the suitable cases”
As
per guidelines laid down in no. of leading cases like Pritam Singh v. State[4]
which explains that how the discretion will be exercised generally in granting
special leave to appeal, the Supreme Court observed as follows:
“The
wide discretionary power with which the court is invested under it, is to be
exercised sparingly and in exceptional cases only”
The residuary
jurisdiction of Supreme Court under Art. 136 has more frequently been invoked
in criminal appeals, But the Supreme Court has not been disposed to interfere
lightly. It has more than once been declared in Nawab Singh V. state of U.P.[5];
Sadhu Singh V. State of Pepsu[6]
; Habeeb Mohammed V. State of Hyderabad[7];
“That
the Supreme Court will not grant special leave to appeal under Art. 136(1) of
the Constitution of India unless it is shown that Special and Exceptional
circumstances exist, that substantial and grave injustice has been done and the
case in question presents features of sufficient gravity to warrant a review of
the decision appealed against. Further, in the exercise of its special
appellate jurisdiction, the Supreme Court will not interfere with concurrent
findings of the below court”
·
In Nazuk Jahan v. Addl. Distt. Judge[8],
the Hon’ble Supreme Court said that, “Every error, even of law, does
not justify interference under Art. 136”
·
In Ibrahim Mallory Dillet, Re[9],
It was observed that Privy Council would not review criminal proceedings
unless it be shown that by a disregard of the forms of legal process or some violation
of the principles of natural justice or otherwise, substantial or grave
injustice has been done.
·
In Sultan
Ahmad v. State of Bihar[10]it
was held that- “Normally Supreme Court does not interfere with concurrent
findings of Trial court and High Court unless there is sufficient ground to do
so.”
·
In Haripada Dey v. State of W.B.[11]-
it was held that - “S.C. will grant Special leave only if there has been
gross miscarriage of justice or departure from legal procedure, such as, which
vitiates the whole trial or if the finding of the fact were such as shocking to
the judicial conscience of the court.”
This case is not an Exceptional
case-
It
is humbly submitted that this case is not an exceptional case as no special or
exceptional circumstances exist that grave injustice has been done.
Ø Correct
interpretation of circumstantial evidences by High Court as in this case two
views are possible on the evidences presented to the court.
Ø The
Hon’ble High Court followed due procedure of law and Principles of natural
justice in its decision of acquittal of respondent Mr. Dinesh Goyal as no
person can be convicted for an offence until proven guilty beyond reasonable
doubts. The evidences on record and statements of prime witness in this
case lead to no. of reasonable doubts as there were two views possible on same
set of evidences.
As held in case of Raghunath v. State of
Haryana[12]“It
is now well settled principle of law that if two views are possible, one in the
favour of the accused and other adversely against it, the view favouring the
accused must be accepted.” The same thing has been done in this case.
Ø There
is no question of facts or question of law involved on non-admissibility of
alleged action of deceased of raising hands towards accused as a dying
declaration.
Thus,
it is humbly submitted that in this case no Special or exceptional
circumstances exists, that sufficient or grave injustice have been done and the
case lacks sufficient gravity to warrant a review of decision appealed against.
As
held in case of Musheer Khan v. State of Madhya Pradesh[13]
where the High Court takes plausible view in acquitting the accused from charge
of murder, the Supreme Court need not to incline to take different view in
exercise of jurisdiction under Article 136.
In
an appeal under Article 136 Court does not normally appreciate the evidence by
itself and goes into the question of credibility of witnesses.[14]
It
is humbly submitted that it was held in case of Narendra Pratap Narain Singh
v. State of Uttar Pradesh[15]
that the Supreme Court will not reassess the evidence at large and come to a
fresh opinion as to guilt or innocence of accused, so as to interfere with the
concurrent finding of fact below, except where there is some serious infirmity
in the appreciation of evidence.
There is no
serious legal infirmity in the appreciation of evidences by High Court in this
case nor are its findings perverse. In D.C.
Mills v. Commissioner of Income Tax[16],
it was held that- It being exceptional
and overriding powers it has to be exercised sparingly and with caution and
only in special extraordinary situations. Beyond that it is not possible to
fetter the exercise of this power by any set formula or rule. Since no
extra-ordinary situation arises, The Supreme Court will not ordinarily
interfere with the appreciation of the evidence by High Court[17]
It
is humbly submitted that as held in case of Radha Mohan Singh @ Lal Saheb v.
State of Uttar Pradesh[18]
that “Re-appreciation of evidences is permissible only if an error of law or
procedure and conclusions arrive at are perverse” and in this case there is
no error of law or procedure neither the conclusions arrived are perverse, this
there is no need of re-appreciation of evidences by Hon’ble Supreme Court.
In case of Subedar v. State of U.P.[19]
it was held that-
The S.C. does not interfere with the concurrent
finding of the fact unless it is established
(1)
That the finding is based on no evidence, or
(2)
That the finding is perverse, or
(3)
That the finding is based on built or inadmissible evidences, or
(4)
Some vital piece of evidence which would tilt the balance in favor of
convict has been overlooked, disregarded or wrongly disregarded.
It is humbly submitted that the present case does
not fulfills any of the conditions mentioned in the above case.
THUS
THE SPECIAL LEAVE PETITION FILED BY THE APPELLANTS UNDER ART. 136 OF
CONSTIUTUION OF INDIA SHALL NOT BE MAINTAINABLE IN HON’BLE SUPREME COURT OF
INDIA.
2
Mr. Dinesh Goyal, Mr.
Suresh Goyal and Mrs. Shalini Goyal are not liable for offences u/s 302, 304-B,
498-A, 201 r/w sec.-34 of I.P.C.
a. The
essential ingredients of sec. 304-B, 498-A r/w sec.-34 of I.P.C. are not
fulfilled to hold Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal
guilty for offences under these sections.
Ø
304B. Dowry Death- where the
death of any woman is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her marriage and it is
shown that soon before her marriage she was subjected to cruelty or harassment
by her husband or any relative of her husband for, or in connection with any
demand for dowry, such death shall be called “dowry death”, and such husband or
relative shall be deemed to have caused her death.[20]
Ø 498A.-Husband or relative of husband of a woman
subjecting her to cruelty.- whosoever being the
husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for the term which may extended to
three yrs. and shall also be liable to fine.[21]
It is humbly submitted that as held in the
case of Kaliyaperumal v. State of Tamil Nadu[22]
the presumption of Dowry Death shall be raised only on the proof of following
essentials:-
(1)
The
question before the court must be whether the accused has committed the Dowry
death of a women.
(2)
The
women was subjected to cruelty or harassment by her husband or his relatives.
(3)
Such
cruelty or harassment was for, or in connection with, any demand for dowry.
(4)
Such
cruelty or harassment was soon before her death.
2.1.1.
There was no Dowry demand by the accused
According
to Sec.-2 of Dowry Prohibition Act, 1961 “Dowry" means any
property or valuable security given or agreed to be given either directly or
indirectly--
(a) By one party to a marriage to the other
party to the marriage; or
(b) By the parent of either party to a
marriage or by any other person to either party to the marriage or to any other
person, at or before or any time after the marriage in connection with the
marriage of the said parties, but does not include dower or Maher in the case
of persons to whom the Muslim Personal Law (Shariat) applies.[23]
According
to Black's Law Dictionary, term “dowry”can
be defined as the property which a woman brings to her husband in
marriage, or the effects which the wife brings to the husband to support the
expenses of marriage.[24]
Ø It is humbly submitted that both the families
i.e. Goyal Family and Gupta Family are very rich, are High Profile
personalities and they knew each other.
Mr.
Suresh and Mrs. Sharda studied M.B.A. in the same college where they fell in
love with each other. Mr. Suresh himself suggested the name of Mrs. Sharda for
marriage, to which Mr. Dinesh Goyal readily accepted. It was a love marriage.
Ø There is no evidence or witness to prove the
allegation of prosecution that Mr. Dinesh Goyal demanded dowry of substantial
value from Mr. Vikram, neither there is any evidence to show that dowry was
paid.
Ø Also
a question arises from the above fact that why would a person (Mr. Dinesh
Goyal) who can spend Rs. 7.5 crore on a wedding reception (according to
income-tax department), who is an industrialist, a high profile person would
demand a dowry.
Ø According to allegations of prosecution, the
photographs and video recordings collected by income-tax department during the
survey showed the assets and items given in dowry.
It is humbly submitted that since Gupta
family is very high profile family,the alleged costly assets and items were just
the gifts and presents made at the time of marriage.
According to Explanation – I of Sec. 2 of
Dowry Prohibition Act, 1961 – “for the removal of doubts it is hereby
declared that any presents made at the time of marriage to either party to the
marriage in forms of cash, ornaments, clothes or other articles, shall not be
deemed to be dowry within the meaning of this section, unless they are made as
consideration for the marriage of said parties.”[25]
The Dowry Prohibition Act does not, in any
way, bar the traditional giving of present at or about the tome of wedding
which may be willing and affection are gifts by parents and close relations of
bride to her. Such presents or dowry given by parents is, therefore, not at all
within the definition of aforesaid statute. Indeed this traditional giving of
presents at or about the time of wedding is an accepted practice which finds
mention in the oldest Hindu scriptures and is continued today with a greater zeal.
Consequently, dowry as commonly understood is something different and alien to
the peculiar definition thereof in the Dowry Prohibition Act. A voluntary and
affectionate giving of dowry and traditional presents would thus be plainly out
of the ambit of the particular definition under the act and once that is so the
rest of the provisions thereof would be equally inapplicable.
Thus articles received as presents and gifts
at the time of marriage cannot be termed as dowry.
Ø It is humbly submitted that there is no
evidence or witness to prove that Mrs. Shalini Goyal made dowry demands for
Mercedes Benj Classic car and for a F.D. of Rs. 1 Crore. Also the F.D. of Rs.
25 lakhs which is alleged to be given as dowry was in the name of Mrs. Sharda Goyal
and in no manner any of the member of Goyal family was beneficiary to it. Thus
it cannot be regarded as Dowry within the meaning if it as in Sec. – 2 of Dowry
prohibition Act, 1961.
2.1.2. The deceased Mrs. Sharda Goyal was not
subjected to cruelty and harassment by her husband, mother-in-law, and
father-in-law for demand of dowry neither after marriage nor soon before her
death.
According to explanation for the purpose of
Sec. 498-A, “cruelty” means-
a)
Any
wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life , limb or health
(whether mental or physical) of the woman; or
b)
Harassment
of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security or is on account of any failure by her or any person related to her to
meet such demand.[26]
The
contentions which prove that there was no cruelty and harassment with deceased
are as follows-:
(1)
Both
the Trial Court and High Court acquitted the respondents from charges u/s 304B
and 498A. Thus it is clearly evident that according to both the courts there
was no direct evidence of dowry demand, cruelty and harassment. As held in case
of Dhanpal v. State by Public Prosecutor, Madras,[27]
“the Trial Court is in better position to evaluate the credibility of
witnesses. If the two reasonable or possible views can be reached – one that
leads to the acquittal, the other to conviction appellate court must rule in
favour of accused.”
(2)
The
couple went for honeymoon to Switzerland and other European countries for a
fortnight, this dhows that Goyal Family loved and cared about the couple.
(3)
There
is no evidence or witnesses to prove the allegations of prosecution that
deceased was subjected to cruelty and harassment after marriage by her in-laws
in the way of threatening to give birth to a male child or, of cursing the
deceased on the birth of baby girl. Merely not organizing the ceremonies or
festivities does not amount to cruelty.
(4)
Mr.
Dinesh Goyal examined three witnesses in defense who stated that Sharda Goyal
was happy in Goyal House and their relations were cordial and she was treated
as a daughter.[28]
(5)
The contents of Diary are not valid as an evidence.
Ø Section 3 of Indian Evidence Act stated that
document is ‘any matter expressed or described upon any substance by means
of letters, figures or marks, or by more than one of those means, intended to
be used, or which may be used for recoding the matter.’
It is
humbly submitted that after death search, police found the diary which was
exhibited and relied for Domestic violence and dowry demand.The diary belonged
to deceased Mrs. Sharda Goyal. Therefore, a prudent conclusion can be drawn
that diary maintained by the deceased falls under purview of the term ‘document’
as defined under Indian Evidence Act.
Ø It is humbly submitted that in the landmark
case of Ramji Dayawala and Sons (P) Ltd v. Invest Import[29]it
was held by the Supreme Court that“Mere proof of handwriting or signature is
not the proof of contents or facts stated therein, if truth thereof in issue.
Truth of contents must be proved by examining witnesses who can vouchsafe them.”
In the absence of such evidence, probative value of contents is weak in the
absence of such evidence.[30]
Ø It is humbly submitted that there is no
evidence or witness to corroborate the contents of diary. As held in case of Mohd.
Ikram Hussain v. State of Uttar Pradesh[31] that, “proving the document does not
proves the content.” To convict an accused u/s 304-B, 498-A of I.P.C., one
of the most essential ingredient is committing the cruelty and harassment of
deceased in relation to demand of dowry. In this case diary is a weak piece of
evidence so the decision of Trial Court and High Court that diary is not a
credible evidence is correct, just and according to law.
Ø
In the case of
Sait Tarajee Khimchand v. Yelamarti Satyam it was held that “Mere making of a document as an exhibit does
not dispense with proof.”
Ø
Any of the Prime Witness examined by prosecution
did not stated that saw deceased being subjected to cruelty or harassment soon
before her death. However they stated that she had bruises and contusions on
her body which was further corroborated by medical evidences. The alleged
bruises and contusions, to be evidence of cruelty by respondents were in
reality due to the convulsions caused to deceased due to consumption of poisonous drug.
2.1.3. Mr. Dinesh, Mr. Suresh and Mrs.
Shalini have not committed the Dowry death of deceased Sharda Goyal.
It is humbly
submitted that on 25. 05. 2015, according to prosecutionall the accused
forcibly administered the poison named “NUVAN” to the deceased Mrs. Sharda Goyal.
The deceased died due to organo phosphorus poisoning.
In the case of Birendar Poddar v State of Bihar[32]It was held that-“It
is obviously true that this case rests solely on circumstantial evidence. It is
true that in cases where death takes place within the matrimonial home, it is
very difficult to find direct evidence. But for appreciating circumstantial
evidence, the court has to be cautious and find out whether the chain of
circumstances led by the prosecution is complete and the chain must be as
complete and conclusive as to unmistakably point the guilt of accused. It is
well settled that if hypothesis or possibility arises from the evidence which
is incompatible with the guilt of accused, in such case conviction of the
accused which is based solely on circumstantial evidence is difficult to be
sustained.”
113B-Indian Evidence Act, 1872 Presumption as
to dowry death-When
the question is whether a person has committed the dowry death of woman and it is
shown that soon before her death such woman has been subjected by such person
to cruelty or harassment for, or in connection with, any demand for Dowry, the
court shall presume that such person had caused the dowry death.[33]
“There must be material to show that soon
before the death of woman, such woman was subjected to cruelty or harassment
for, or in connection with demand of dowry then only a presumption can be drawn
that a person has committed the dowry death of a woman” as held in the case
of G.V. Siddaramesh v. State of Karnataka[34]
Statements of witnesses examined by the
prosecution are as follows -
1.
PW-1
Mr. Sanjay Kumar, a
shopkeeper told that Mr. Dinesh Goyal purchased organo phosphorus “NUVAN” on
24.05.2015 on the pretext that he required the same to kill the flies.
According to judgment of Hon’ble High Court –
The statement of PW-1 Mr. Sanjay Kumar, a
shopkeeper is not reliable. It is humbly submitted that NUVAN is very commonly
and easily available pesticides. It is not possible for a shopkeeper to clearly
and correctly remember that which customer purchased what commodity, as no. of
customers visitto his shop every day until that customer is his permanent or
special customer.
Mr. Dinesh Goyal was not permanent customer
of that shop, therefore statement of PW-1 is not doubtful and hence not
reliable.
2.
PW-2
Mr. Surendra Kumar, a
servant heard the shrieks and cries of the deceased and extreme weeping of her
child.
3.
PW-3
Mr. Ved Prakash& PW-4 Mr. Om Prakash, the servants stated that they smelt the poisonous odour
in the room. The deceased was lying on the bed having bruises and
contusions on her face. Water was splashed on the bed as well as on the floor
of the room. The clothes of the deceased were also drenched.
4.
PW-5
Mr. Anil Kumar & PW-6 Mr. Shiv Kumar, relatives of the deceased who arrived at Goyal house on
the same day stated that they noticed the condition of the room
and also the precarious and deteriorating condition of the deceased.
No inference of the fact that deceased was
subjected to cruelty and harassment, and she was forcibly administered poison
can be drawn from the statement of above witnesses. The Trial Court and High
Court also did not relied upon the statements of these witnesses.
In the case of Chandu Bhai Shana Bhai
Parmar v. State of Gujrat[35]it
was held that when ocular evidence in murder case is unreliable benefit of
doubt to be given to all accused.
Mr.
Dinesh Goyal in his statement under section-313 of
Cr.P.C. did not deny the factum of the deceased having died due to poison.
It was stated by him that the deceased had disclosed to him that she had
consumed some drugs and had asked him to give her salty water.
Deceased
was under convulsion due to some drug. He had given her water to vomit. He had
firstly and then to S.M.S. Hospital called Dr. O.P. Chowdhury. Deceased was a
sensitive lady. His relationship with the deceased was cordial.
He
examined 3 witnesses in defense, who stated that Shalini Goyal was happy in
Goyal House and their relations inters were cordial and she was treated as a
daughter. In the case of Navaneetham v. S.S. Jayarama Pillai[36]
it was held that- The court cannot
disbelieve evidence of one witness and believe that of the other merely on the basis
of demeanor without giving reasons or ground for the same.” Thus the statements of above witnesses are
reliable.
Medical
evidences in the case
PW-8 Dr. O.P.
Chaudhary – examined the deceased at 6 a.m. and
noted that patient was semi-conscious with the history of consumption of
poisonous substance. The ante-mortem findings were as follows-:
(i)
Contusion reddish in color over
the lateral side of her right eye brow with swelling present of the size of 7
cm. x 5 cm. and
(ii)
(ii) Both lips were swollen. It was also noted
that complete examination of the body could not be done because patient was in
serious condition.
(iii)
B.P. was not recordable and Pupils
bilateral circular, pin point not reacting to light.
He administered the
initial treatment. He carried out Gastric Lavage first with saline solution and
then with ordinary tap water. Thereafter he referred the deceased at S.M.S.
Hospital, Jaipur. Mrs. Sharda Goyal died at the hospital.
Findings
of the post-mortem
PW-9
Dr. Piyush Kapila and Dr. V.K. Mishra conducted the
post-mortem of the deceased. They opinioned that the deceased died due to
asphyxia.It was a Toxic asphyxia and the
level of obstruction was Lung, its cause was due to failure of oxygen
transportation/utilization, CO or cyanide poisoning which was the result of
consumption of NUVAN, the organo phosphorus.
Asphyxia is a condition arising when the body is deprived of Oxygen, may
lead to death. It can be caused by Drug Overdose It is humbly Submitted that
Organo phosphorous are powerful inhibitors of acetylcholinesterases. Organic
phosphates inhibit ACHE in all parts of the body which lead to paralysis of
nerves and muscles i.e. Convulsions, increment in Heart Rate and Asphyxia[37]
The post-mortem injuries were as follows-:
(i)
10 cm x 6 cm bruise on the right per
orbital area with swelling of right eye lid with two concentric nail scratches
abrasions, one on forehead and other on upper eye lid. Bluish in colour;
(ii)
9 cm x 4 cm big contusion, bluish in colour, on
intra orbital area and check on left side;
(iv)
½ cm x ½ cm contusion on the inner side
of lower lip towards left side mid line with respect to left lateral incisor
(lower). Blue in colour;
(v)
8
cm x 7 cm abraded contusion over chin and sub mental area in midline. Bluish in
colour;
(vi)
11 cm x 5 cm multiple small abrasions over
neck and right of upper chest in front 3 cm lateral to steno calvicular joint.
(vii)
10 cm x 4 cm contusion in infra-axillary area
in mid axillary line. Blue in colour.
(viii)
7 cm x 5 cm large purple coloured patch
over dorsum of right hand with multiple needle prick marks.
Ø It
is humbly submitted that PW – 8 Dr. O.P. Chaudharystated that injuries
indicated positively the administration of poisonous substance forcibly to the
victim, however, he could not say whether the deceased had consumed the poison
herself to commit suicide.
Ø PW-9
Dr. Piyush Kapila also stated that he could not rule out
the possibility of the victim committing suicide by herself.
Ø Dr.
Chaudhary had noticed only two injuries on the person of the deceased. However,
the injuries increased from 2 to 6 in the post mortem report submitted by Dr.
PiyushKapila. The possibility of the injuries could be caused by convulsions
was not ruled out. Possibility of injuries caused by convulsions is strengthened
from the fact that number of ante-mortem injuries had increased from the period
the victim was examined initially and the post mortem was conducted.
Ø It
is humbly submitted that deceased died due to asphyxia, blood appears purple or
dark in color; usually seen in the lips, tip of nose, ears lobules, and
internally in the lungs, meninges, liver, spleen and kidneys due to asphyxia.
Ø The
injuries mentioned in ante-mortem reports were caused in course of attempt to
provide initial treatment to deceased by the respondents and were also due to
convulsions received by deceased due to consumption of poison.
Ø The
additional injuries mentioned in post-mortem reports were caused after the
ante-mortem examination by Dr. O.P. Chaudhary due to convulsions received by
deceased while she was taken to hospital because if they ought to be caused
earlier, the injuries were so big in size, they were easily visible that they
cannot be easily neglected by Doctor in ante-mortem examination.
Ø In the case of Mani Ram v.
State[38],
it was held that-“Medical opinion is only
an evidence of opinion and is hardly decisive. It is not substantive evidence.”
Ø In the case of Ashok Kumar Das v. Kalpana Das[39],
it was held that- “Expert opinion is
merely am aid to the court to arrive at a conclusion. Such an opinion is not
binding. It is optional for the court to accept it or to reject it.”
Ø In the case of Madan Gopal
v. Naval Dubey[40],
it was held that- “The medical opinion
being an opinion, is advisory in nature and not binding upon the court. The court has to form its own opinion
considering the material data, and the opinion on the technical aspects
rendered by the medical expert.”
Ø The Supreme Court in Solanki Chimanbhai Ukabhai v.
State of Gujarat[41]
observed: - "Ordinarily, the value of medical evidence is
onlycorroborative. It proves that the injuries could have been causedin the
manner alleged and nothing more. The use, which the defense can make of the
medical evidence, is to prove that theinjuries could not possibly have been
caused in the manneralleged and thereby discredit the eyewitnesses.”
Therefore,
from the above arguments it is not proved that poison was forcefully
administered to the deceased and from the conduct of the Goyal family it can be
inferred that they had tried till the last breath of deceased to save her life.
The death of deceased was either suicidal or due to accidental consumption of
poison.
The
other facts which introduces the ground of reasonable doubt in this case are as
follows-
Disappearance of
poison-It is humbly submitted that the
prosecution had failed to prove that the poison was in possession of the
accused. The poison which was alleged to be administered to the deceased was
not found in the possession of the accused. There was no eye witness who had
seen that the accused had administered poison to the deceased forcefully. Thus,
the non- availability of poison in the possession of the accused creates a
loophole and thus, the accused cannot be held guilty.
Ø Disappearance of
clothes-It is humbly submitted that the clothes
of the deceased had not been produced which is an important evidence. Thus, no
sample of poison or fingerprints of the accused had been taken from the clothes
of the deceased. Thus, it creates a serious doubt.
Ø No fingerprints found-As
the clothes and bottle of poison was not recovered thus, no fingerprints of the
accused were found on them. Thus, they cannot be held guilty.
Ø In
the case of Jaspal v. State[42]
it was held that-The finger print
examination is conclusive as it is an exact science.
Ø In
the case of Babu Khan v. State of
Rajasthan[43]
it was held that-Where the court had to
check the reliability of fingerprint evidence and it was found that
fingerprints were not taken and the seized articles were not produced nor
exhibited, a conviction on the basis of such evidence was held not to be
proper.
Ø It was held that in the case Baldev Singh v. State of
Haryana, Ratio Decidendi: Where
a case rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found to
be incompatible with the innocence of the Accused or the guilt of any other person.
If the evidence relied on is reasonably capable of two inferences, the one in
favour of the accused must be accepted.[44]
Ø In the case of State of U.P. v. Ashok Kumar Srivastava
it was pointed out that great care must be taken in evaluating circumstantial
evidence and if the evidence relied on is reasonably capable of two inferences,
the one in favour of the accused must be accepted.[45]
Ø
In the case of Padala Veera Reddy v. State of A.P. &Ors[46].held
that-When the case rest upon circumstantial evidence, such evidence must
satisfy the following test:
1.
The
circumstances from which inference of the guilt is sought to be drawn must be
cogently and firmly established:But in this case
circumstances are not firmly established as it was not clear that whether the
deceased was administered poison forcefully or she herself consumed the poison
to commit suicide or it was the case of accidental consumption of poison.
2.
Those
circumstances should be of definite tendency unerringly pointing towards the
guilt of the accused: In this case the mere purchase of
organo-phosphorous by Dinesh Goyal does not prove that he had purchased it in
order to kill the deceased.
3.
The
circumstances, taken cumulatively should form the chain of so complete that it
must prove in all probability that crime was committed and none else: But
in this case, the circumstantial evidences against the accused in no manner
prove them guilty beyond reasonable doubt.
There is no valid proof to establish Sec. 113-B of
Indian Evidence Act
In case of Nand Kishore v. State of Maharashtra[47]it
was held that all the ingredients of this section must exists conjunctively.
There must be nexus between cruelty and harassment to raise the presumption of
dowry death u/s 113B of Indian evidence Act.
It
is humbly submitted that from the above facts, arguments, evidences and
precedents it is clearly evident that there was no dowry demand from the
deceased, neither she was subjected to cruelty and harassment soon before her
death. There is no nexus between
cruelty and harassment.
The
Supreme Court explained the term “soon before death” in Hans Raj v. State of
Punjab[48]
that there should have been continuous cruelty connected with demand of
dowry and the same should be shown to be right up to the point of death. In
present case deceased was neither subjected to cruelty after marriage nor soon
before death.
In
the case of Mungeshwar Pd. Chaurasia v. State of Bihar[49]
None of the prosecution witness stated that in-laws had done anything against
the deceased wife soon before death. Their conviction u/s 304B and 498A was
held to be not sustainable. They were also acquitted under section 201 because
the offence under the section cannot be separated from the main offence.
As
in case of Bhakkar Ram v. State of
Rajasthan[50]when
it was not proved that accused used to maltreat and harass the deceased for
dowry soon before her death the offence of S. 304B with the presumption of S.
113B of evidence act cannot be established. Also in case of Rajnesh Tandon
v. State of Punjab[51]when
evidence did not prove that wife was subjected to cruelty and harassment in
connection with demand for dowry, then there is no scope for presumption of
Dowry death u/s 113B of Indian Evidence Act.
The
death of deceased was either suicidal or homicidal. However, it can be inferred
that the death of deceased Mrs. Sharda Goyal was unnatural, the respondents in
no manner can be presumed to have been committed the dowry death of deceased
u/s 304B I.P.C. as the other essential ingredients of this section does not
exist conjunctively.
Thus,
it is humbly submitted that the essential ingredients of sec. 304-B, 498-A r/w
sec.-34 of I.P.C. are not fulfilled to hold Mr. Dinesh Goyal, Mr. Suresh Goyal
and Mrs. Shalini Goyal guilty for offences under these sections.
b.
The respondents are not liable for murder of deceased Mrs. ShardaGoyal u/s
302 r/w Sec. – 34 of I.P.C.
Sec.300 of I.P.C defines murder as:
Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or—
Secondly — If it is done with the intention of causing such bodily
injury as theOffender 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 injury as aforesaid.[52]
Sec. 302 of I.P.C: Whoever commits murder shall be punished with death, or imprisonment for
life, and shall also be liable to fine.[53]
It is humbly submitted that in Rajibir v.
State of Haryana[54]a
two judge bench of Supreme Court directed all the trial court to ordinarily add
Section 302 to the charge of section 304B, so that death sentences can be
imposed on such heinous and barbaric crime against the women but in the case of
Jasvinder Saini &Ors. v. State (Govt. of NCT of Delhi)[55]
the Supreme Court clarified that the direction in Rajibir’s case was not meant
to be followed mechanically and without due regard to the nature of evidences
available in the case. All that this court meant to say was that in a case
where a charge alleging dowry death is framed, a charge under Sec. 302 can also
be framed if the evidence otherwise permits.
In this case the Trial Court acquitted
respondents of charges for dowry death u/s 304B and 498A. However the
respondent Mr. Dinesh Goyal was wrongly convicted u/s 302 for the murder of
deceased. He was awarded imprisonment for 7 years.
It is submitted
that this Judgment of trial court was tainted with serious legal infirmities as
the court overlooked the facts, evidences and legal principles and delivered
the judgment on basis of conjecture and surmises.
The trial court
was also not justified in awarding imprisonment of 7 years to Mr. Dinesh as it
is mentioned in Sec. 28(2) of Cr.P.C. that
“ a session judge or Additional session
judge may pass a sentence authorized by
law,***** ” but minimum
punishment u/s 302 is life Imprisonment.
The Hon’ble
High Court of Rajasthanrightly acquitted the respondent Dinesh Goyal on the
ground that the circumstances are not of conclusive nature.
The respondents
had no mens rea i.e. evil intention to murder the deceased Mrs. Sharda Goyal
neither any actus reus was done by them for the commission of alleged offence.
The important question of fact and law for the
conviction of accused under Sec. 302 is the Dying Declaration of
deceased.
Ø Sec32 of Indian
Evidence Act
Statements, written or verbal, of
relevant facts made by a person who is dead, or cannot be founded, or who has
become incapable of giving evidence, or whose attendance cannot be procured
without any amount of delay or expense which, under the circumstances of the
case, appears to the court unreasonable, are themselves relevant facts in –
1.
When
the Statement is made by the person as to the cause of his death, or as to any
circumstances of the transactions which resulted in his death, in cases in
which the cause of that persons death comes into question.
Such statements are relevant whether the
person who made them was or was not, at the time when they were made, under
expectation of death, and whatever may be the nature of proceeding in which the
cause of death comes into question.
As held in case of Waikhom Yaima Singh v. State
of Manipur[56]there can be no dispute
that dying declaration can be the sole basis for conviction, however, such a
dying declaration has to be proved to be wholly reliable, voluntary and
truthful and further that the maker thereof must be in a fit medical condition
to make it. The facts and precedents which proves that in this case the
mentioned requirements are not fulfilled are as follows-
It is humbly submitted that according to PW-5
Mr. Anil Kumar & PW-6 Mr. Shiv Kumar, relatives of the deceased, when they
asked the deceased that what has happened, she raised her hands towards
accused Mr. Dinesh Goyal and Mrs. Shalini Goyal. The deceased was not in
condition to speak neither she was in fit medical condition to respond to the
questions of PW-5 & 6. The Hon’ble High Court did not admitted the
dying declaration of deceased.
Ø In
the case of Kanchy Komuramma v. State of
A.P.[57]
it was held that –“Even the recording of
a statement by a magistrate is not in itself a proof of its truthfulness.”
Thus,
it is humbly submitted that in this case, the dying declaration was not even
made in front of any authority. It was made to the relatives of the deceased. Thus,
cannot be relied.
Ø In
the Case of Adevappa Nagappa Anaglokar
v. State of Karnataka[58]
it was held that -A dying declaration
should be short concise and to the point.
It is humbly submitted that just merely raising
hand towards accused does not prove the guilt of the accused. It cannot be
accepted as a Dying Declaration.
Ø In
the case of Laxmi v. Om Prakash[59]it
was held that –“The court should be
satisfied that the deceased was in a fit state of mind and capable of making a
statement at the time when it was recorded.”
Ø In
the case of Vithal Sadashiv Gaikwad v.
State of Maharastra[60]
it was held that –“Certificate from the
doctor and endorsement from him that the victim was not only conscious but also
in a fit condition to make statement is a must. In the absence of such
certificate the declaration may be rendered heavily suspect.”
It is humbly submitted that the physical and
mental state of deceased was not proper. She was not in the state of making any
statement. In the meantime, when Dr. O.P. Chaudhary examined her then she was
in the unconscious state, the Hon’ble H.C. had also rejected the dying
declaration as it was not clear and certain.
Ø In
the case of Vithal Somenathkore v. State
of Maharastra[61]
it was held that– “Where two
interpretation of the statement recorded as a dying declaration are possible,
the S.C. did not interfere with the meaning put by the H.C.”
Each case must be
determined on its own facts keeping in view the circumstances in which dying
declaration was made. It can only be believed if there are no grounds for
doubting it at all.[62]In
present case the prosecution wrongly interpreted the gesture of deceased
recorded as a dying declaration that she was holding Mr. Dinesh Goyal and Mrs.
Shalini Goyal liable for administering her the poison.
It is humbly submitted that the deceased did not
named the respondents as responsible for administering poison.Raising hand
towards the accused also signifies that she was not in the fit medical
condition to reply to question of PW-5 & 6. She may raise her hand towards
the respondents to tell the relatives to ask them about the answer of the
question they wanted to know.
The High Court has not accepted this gesture
of the deceased as a dying declaration, thus it cannot be the ground for
conviction for murder u/s 302 and according to the precedent mentioned above
the Hon’ble Supreme Court cannot interfere with the meaning put by Hon’ble High
Court.
In the case of Rasheed Beg v. State of
Madhya Pradesh[63]it
was held that where dying declaration is suspicious it should not be acted upon
without corroborative evidences. A dying declaration which suffers from the
infirmity cannot form the basis of conviction.[64]
In present case there is no corroborative evidence supporting the prosecution’s
version of dying declaration and it suffers from infirmity so it cannot form
the basis of conviction.
In the case of Nanhar v. State of Haryana[65]
it was held that Dying Declaration should be such, which should immensely
strike to be genuine and stating true story of its maker. It should be free
from all the doubts and ongoing through it, an impression has to be registered
immediately in the mind that it is genuine, true and not tainted with doubts.
The dying declaration in this case does not
meets the criteria of the above precedent so Mr. Dinesh Goyal cannot be
convicted for murder on the basis of it.
Ø It is humbly submitted that court should adopt
cautious approach for basing conviction on circumstantial evidence[66]The principle for basing the conviction on the basis of
the circumstantial evidence is that each and every incriminating circumstances
must be clearly established by the reliable and clinching evidence and the
circumstances so proves must form the chain of events from which only the
irresistible conclusion about the guilt of the accused can be safely drawn and
no other hypothesis against the guilt is possible.[67]
Ø There is no proof
beyond all reasonable doubts
Doubt
would be called reasonable if they are free from zest for abstract speculation.
Law cannot afford any favorite than truth. To constitute reasonable doubt, it
should be free from an over emotional response. Doubts must be actual and
substantial as to the guilt of the accused persons arising from the evidence,
or from the lack of it as a post to mere vague apprehensions. A reasonable
doubt is not imaginary, trivial or merely possible doubt; but a fair doubt
based upon reason and common sense. It must grow out of the evidence in the
case[68].
Also law does not require conclusive proof, but only proof beyond reasonable
doubt[69].
In the case of State of U.P. v. Ashok Kumar Srivastava[70]
it was held that “Great care must be taken in evaluating circumstantial
evidences and if the evidence relied on is reasonably capable of two
inferences; the one in favor of the accused must be accepted.”
Ø From the above facts, arguments, precedents it is clearly
evident that prosecution has failed to prove the respondents guilty for alleged
offences beyond reasonable doubt. There are no. of hypothesis drawn against the
guilt of respondents. So in present case the facts and circumstances from which
conclusion of guilt was sought to be drawn by prosecution is not established
beyond reasonable doubt, therefore the conviction u/s 302 is improper.[71]
Ø Where
two views are reasonably possible from the very same evidence, prosecution
cannot be said to have proved its case beyond reasonable doubt.[72]
In the case of Kali Ram v. State of H.P.[73] was held that -
“Another golden thread which runs through the web of the administration of
Justice in criminal cases is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of accused and the other to his
innocence the view which is favorable to the accused should be adopted. This
principle has a special relevance in cases wherein the guilt of the accused is
sought to be established by circumstantial evidence. It is also accepted rule
that in case the Court entertains the reasonable doubt regarding the guilt of
the accused, the accused must have the benefit of doubt.
Thus
it is most humbly and respectfully submitted that Mr. Dinesh Goyal, Mr. Suresh
Goyal and Mrs. Shalini Goyal are not liable for offences u/s 302, 304-B, 498-A,
201 r/w sec.-34 of I.P.C.
PRAYER
Wherefore,
in the light of the fact used, issues raised, arguments advanced and the
authorities cited, it is most humbly and respectfully prayed that this Hon’ble
court may be pleased to adjudge and declare that:
1. The
Special Leave Petition filed by the appellants State of Rajasthan and Mr.
Vikram Gupta under Art. 136 of constitution of India is not maintainable in
Hon’ble Supreme Court of India.
2. The
accused Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal are not liable
for offences punishable u/s 302, 304B, 498A, 201 r/w Sec.-34 of I.P.C.
According
to what is just and good, it is an appeal of the counsel to Hon’ble Court to
adjudge the above prayers, and grant any other relief which this Hon’ble Court
may be pleased to grant and is deemed fit in the interest of Justice, Equity
and Good Conscience.
All
of which respectfully submitted
For
the act of Kindness, the Respondents shall Duty Bound Forever
All
of which is most humbly prayed
Counsels
for the Respondents
[1]P.M. BAKSHI, The Constitution of
India, 12thedition, Universal law Publishing Co. Pvt. Ltd., 2013,
Pg148
[2] Moot Proposition, Pg. 7
[3]Ashok Nagar Welfare Association
v. R.K. Sharma, AIR 2002 SC 335
[4]Pritam Singh v. State, AIR 1950
SC 169
[5]Nawab Singh v. State of U.P., AIR
1954 SC 278.
[6]Sadhu Singh v. State of Pepsu,
AIR 1954 SC 271.
[7]Habeeb Mohammed v. Sate of
Hydrabad, AIR 1954 SC 51
[8]NazukJahan v. Addl. Distt. Judge;
AIR 1981 SC 1549.
[9]Ibrahim Mallory Dillet, Re, (1887)
12 SC 1549.
[10]Sultan Ahmad v. State of Bihar,
AIR 1975 SC 1828
[12]Raghunath v. State of Haryana,
AIR 2003 SC 165.
[14]Alamelu v. Sate, AIR 2011 SC 715.
[16] D.C. Mills v. Commissioner of
Income Tax, AIR 1955 SC 55.
[17]State of Madhya Pradesh v. Orient
Paper, (1990) 1 SCC 176, para 2.
[18]Radha Mohan Singh @ Lal Saheb v.
State of Uttar Pradesh, AIR 2006 SC 951.
[19]Subedar
v. State of U.P.
[20]Criminal Manual, Universal
Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 517-518
[21]Criminal Manual, Universal
Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 589
[22]Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.
[23]Dowry prohibition Act, 1961,
Sec-2.[23]
Garner, Black’s Law Dictionary, 8th Edition
[24] Garner, Black’s Law Dictionary,
8th Edition
[25]Professional book publishers,
Dowry Prohibition Act, 1961, Pg. 116.
[26]Criminal Manual, Universal
Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 589
[27]Dhanpal v. State by Public Prosecutor, Madras, (2009) 10 SCC 401.
[28]Moot Proposition, Para 15.
[29]Ramji Dayawala and Sons (P) Ltd v. Invest Import, AIR 1981 SC 2085.
[30]Bishwanath Rai v. Sachhinand Singh. AIR 1971 SC 1949.
[31]Mohd. Ikram Hussain v. State of
Uttar Pradesh, AIR 1964 SC 1625.
[32]Birendar Poddar v State of Bihar, (2011) 6 SCC 350.
[33]Criminal Manual, Universal
Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 655
[35]Chandu Bhai Shana Bhai Parmar v. State of Gujrat, AIR 1982 SC 1022.
[36]Navaneetham v. S.S. Jayarama
Pillai, 1996 AIHC 1849.
[37]Gautam Biswas, Riview of forensic
Medicine &Toxilogy, 2nd edition, Pg. 138
[39]Ashok Kumar Das v. Kalpana Das
[41]Solanki
Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484
[42]Jaspal
v. State, AIR 1979 SC 1708.
[44]Baldev Singh v. State of Haryana,
(2008) 14 SCC 768.
[47]Nand
Kishore v. State of Maharashtra
[48]Hans Raj v. State of Punjab, AIR
2000 SC 2324.
[49]Mungeshwar Pd. Chaurasia v. State
of Bihar, AIR 2002 SC 2531
[50]Bhakkar Ram v. State of Rajasthan,
1995 Cr LJ 1345 (Raj.)
[51]Rajnesh Tandon v. State of Punjab, 1995 SCC (Cri) 817.
[52] Criminal Manual, Universal
Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 507
[56]Waikhom Yaima Singh v. State of Manipur, 2011
Cr LJ 2673.
[57]Kanchy Komuramma v. State of A.P., (1995) Supp4 SCC
118
[58]Adevappa Nagappa
Anaglokar v. State of Karnataka,
1998, Cr LJ 584 (Kant.)
[62]Tarachand v. State
of Maharashtra, AIR 1962 SC
130.
[63]Rasheed Beg v. State of Madhya Pradesh, AIR 1974 SC 332.
[64] Ram Manorath v. State of U.P., 1981 SCC (Cr) 581.
[65]Nanhar v. State of Haryana, JT 2010 (6) SC 196.
[66]State of Haryana v. Ved Prakash, 1994 Cr LJ 140 (SC).
[67]Wakkar v.
State of Uttar Pradesh, (2011) 3 SCC 306.
[68] State of MP v. Dharkola, 2005 CriLj 102 (SC)
[69] State of Kerala v. Bahuleyan, AIR 1987 SC 482
[70]State
of U.P. v. Ashok Kumar Srivastava, [1992]
1 SCR 37.
[71]Hardayal and Prem v. State of
Rajasthan, (1991) Cr. LJ 345 (SC).
[72]T.Subramanian v. State of Tamil Nadu, (2006) 1 SCC 401.
[73]Kali Ram v. State of H.P. (1973)
2 SCC 808.
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