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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
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TABLE OF CONTENTS
ABBREVIATIONS ………………………………………………………………
3 INDEX OF AUTHORITIES ……………………………………………………. 4
STATEMENT OF JURISDICTION…………………………………………….
7 SYNOPSIS OF FACTS…………………………………………………………... 8
STATEMENT OF ISSUES………………………………………………………
12 SUMMARY OF ARHUMENTS ………………………………………………... 13
ARGUMENTS ADVANCED…………………………………...………………..
14 1. THE SPECIAL LEAVE PETITION FILED BY STATE OF RAJASTHAN AND Mr. VIKRAM GUPTA IS MAINTAINABLE IN HON‘BLE SUPREME COURT OF INDIA 14
1.1 There were many illegalities and irregularities of procedure and violation of the principles of natural justice resulting in absence of a fair trial and there was gross miscarriage of justice.
14 1.2This case is an Exceptional case………………………………………………. 16
1.3 Appellants have Locus Standi………………………………………………...
18 1.4 The Supreme Court has jurisdiction to hear the present appeal……………… 19
2. 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……………………..
21 2.1 The essential ingredients of sec. 304-B, 498-A r/w sec.-34 of I.P.C. are fulfilled to hold Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal guilty for offences under these sections………………………………………… 21
2.1.1. There was Dowry demand by the accused ……………………………….
21 2.1.2. The deceased Mrs. Sharda Goyal was subjected to cruelty and harassment by her husband, mother-in-law, and father-in-law for demand of dowry soon before her death. 23
2.1.3 The respondents have committed the dowry death of the deceased…….......
24 2.1.4. The act done by all accused persons was in furtherance of common intention. 32
2.1.5. All the accused person are liable for offence under Sec. – 201 of I.P.C. …...
33 2.2 The respondents are liable for murder of deceased Mrs. Sharda Goyal u/s 302 r/w Sec. – 34 of I.P.C. 34
PRAYER……………………………………………………………………………
40
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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. Indira Kaur and Ors. Vs. SheoLal Kapoor : (1988 )2SCC 488.
2. Anvaruddin v. Shakoor, AIR 1990 SC 1242.
3. Gauri Shankar Sharma v. State of Uttar Pradesh, AIR 1990 SC 709.
4. Emporium v. Mohd. Ibrahim Naina : AIR1985SC207.
5. P.S.R. Sadhanantham v. Arunachalam and Anr. : AIR 1980 SC 856.
6. Sham Sunder v. Puran : (1990) 4 SCC 731.
7. Pritam Singh v.State: AIR 1950 SC 169 .
8. Sanwat Singh V. State of Rajasthan : AIR 1961 SC 715
9. Radha Mohan Singh @ LalSaheb v. State of Uttar Pradesh, AIR 2006 SC 951.
10. Amanullah and Ors. Vs. State of Bihar and Ors : MANU/SC/0403/2016
11. State of Maharashtra v. Digambar, (1995)4 SCC 683.
12. RamakantRai vs. MadanRai and Ors. : AIR 2004 SC 77.
13. Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335
14. Dhakeswari cotton Mills Ltd. V. C.I.T : AIR1965SC65
15. Pritam Singh V. State : AIR1950SC169
16. Union Carbide Corporation v. Union of India, (1991) 4 SCC 584
17. Rafiq v. State of U.P. , (1980) 4 SCC 262
18. Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036
19. Delhi Judicial Service Association v. State of Gujrat, AIR 1991 SC 2176.
20. Jagatjit Distilling Ltd. V. State of Punjab, (1974) 1 ILR 189(Punjab & Haryana).
21. Nageshwar V. State of Maharashtra : AIR 1973 SC 165
22. State of U.P. V. Hari Ram : AIR 1983 SC 1081
23. State of U.P. V. Anil Singh : AIR 1988 SC 1998
6th FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2016
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24. Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.
25. Dhan Singh v. State of U.P., 2012 Cr LJ 3156(All)
26. State of Karnataka v. Balappa, 1999 CrLJ 3064(Kant.)
27. Rita v. Brij Kishore, AIR 1984 Del 291.
28. P Bikshapathi v. State of A.P. 1989 Cr LJ 1186.
29. BirendarPoddar v State of Bihar, (2011) 6 SCC 350.
30. RatanLal v. State of Madhya Pradesh, 1994 Cri LJ 1684
31. Rizan v. State of Chhattisgarh, AIR 2003 SC 976.
32. Kailash v. State of M.P. AIR 2007 SC 107.
33. Kulwant Singh &Ors. v. State of Punjab, AIR 2013 SC 1567.
34. Butan Sao v. State of Bihar, 2000 Cr LJ 3122 (Pat).
35. G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152
36. Kailash v. State of Madhya Pradesh, AIR 2007 SC 107
37. RobbaRamanna Dora v. State of Andhra Pradesh, 2000 CrLJ 118(AP)
38. Prabhu v. State of Madhya Pradesh, (1991) Cr LJ 1373.
39. State of Gujratv.Raghu @ Raghavbhaivashrambhai and Ors. 2003 GLH (1) 699
40. Rameshwar Das v. State of Punjab, (2007) 14 SCC 696.
41. Bhagwan Das v. Kartar Singh, AIR 2007 SC 2045.
42. Wakkar v. State of Uttar Pradesh, (2011) 3 SCC 306.
43. Arvind v. State, 1999 (4) SCC 4861.
44. Thyssen Stahlunion GmbH V. The Steel Authority of India : AIR 2002 Delhi 255
45. T.P. Divetia v. State, AIR 1992 SC 2193.
46. State of Maharashtra and ors. v. Rajkumar and ors. AIR 1982 SC 1301
47. Sanjay Kumar Kesharvani vs. State of Chattisgarh
48. Mafabhai Nagarbhai Raval v. State, AIR 1992 SC 2186.
49. A.M. Kunnikoya v. State of Kerla, (1993) 1 Crimes 1192 (SC)
50. Mohan Singh v. State of Madhya Pradesh, AIR 1999 SC 883.
51. Ashok Kumar v. State of Rajasthan, (1991) 1 Crimes 116 (SC).
52. RatanDebnath v. State of Tripura, 2000 Cr LJ 237(Gau.)
53. State of Punjab v. Fauja Singh, (1997) 3 Crimes170 (P&H)
54. ShreekantiahRamayya (1954) 57 Bom. LR 632 (SC)
55. State of Punjab v. Surjit Singh, (1987) 1 SCC 520.
56. Sukhram v. State of Maharashtra, AIR 2007 SC 3050.
57. Jaspal v. State, AIR 1979 SC 1708.
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58. Rajibir v. State of Haryana, AIR 2011 SC 568.
59. Jasvinder Saini &Ors. v. State (Govt. of NCT of Delhi), (2013) 7 SCC 256.
60. Prabhu v. State of Madhya Pradesh, (1991) Cr LJ 1373.
61. WaikhomYaima Singh v. State of Manipur, 2011 Cr LJ 2673.
62. Queen-Empress v. Abdullah, (1885) 7 All. 385 FB.
63. Pandian K. Nadar v. State of Maharashtra, 1993 Cr LJ 3883 (Bom)
64. MeesalaRamakishan v. State of A.P. (1994) 4 SCC 182.
65. Bhoora Singh v. State of U.P. , 1992 Cr LJ 2294.
66. Rizan v. State of Chhattisgarh, AIR 2003 SC 976.
67. Tarachand v. State of Maharashtra, AIR 1962 SC 130.
68. State of Maharashtra v. KrishnamurthiLaxamipati Naidu, AIR 1981 SC 617.
69. Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1
70. Prakash v. State of Madhya Pradesh, AIR 1993 SC 65.
71. S.D. Soni. v. State of Gujrat, (1991) Cr LJ 330 (SC)
72. State of MP v. Dharkola 2005 CriLj 102 (SC)
73. State of Kerala v. Bahuleyan AIR 1987 SC 482
74. Sarbir Singh v. State of Punjab, 1993(1) Crimes 616 (SC)
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: www.lexisnexis.com www.judis.nic.in www.manupatra.com
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STATEMENT OF JURISDICTION The Appellants Mr. Raghvendra Singh Sekhawat, Yashodhara Devi, Dev Singh, Nidhi and Anita have filed a Special Leave Petition under Article 136 of Constitution of India in Hon‘ble Supreme Court of India against the impugned judgment and order passed by Hon‘ble High Court of Rajasthan.
The present memorandum sets forth the facts, contentions and arguments. SYNOPSIS OF FACTS
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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. 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. 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 house and apologized for mistreatment of his family. He sought consent of Sharda and she returned to Goyal Palace. But relationship between Sharda Goyal and her husband continued to be estranged due to demand of dowry and excessive drinking of Suresh Goyal who started abusing and beating in the presence of servants.
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, 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.
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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 organophosphorus 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.
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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-:
Chain of circumstances is not complete so as to unerringly point to the guilt of accused.
The possibility of victim committing suicide cannot be ruled out.
The prosecution has failed to prove that poison was in possession of the accused.
The Trial Court did not convicted the accused u/s 304-B & sec.-498A.
The victim did not named the accused as responsible for administering poison.
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
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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.?
Whether all the accused persons are liable for dowry death of deceased u/s 304B and 498A of I.P.C.?
Whether the act of accused persons was in furtherance of common intention according to Sec. 34 of I.P.C?
Whether accused persons are liable u/s 201 for misapprociation of evidences?
Whether the accused persons are liable for murder of deceased Mrs. Sharda Goyal u/s 302 of I.P.C?
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SUMMARY OF ARGUMENTS
1. THE SPECIAL LEAVE PETITION FILED BY STATE OF RAJASTHAN AND Mr. VIKRAM GUPTA IS MAINTAINABLE IN HON’BLE SUPREME COURT OF INDIA
It is most humbly and respectfully submitted that Special Leave Petition filed by appellants under Article 136 of Constitution of India is maintainable as the judgment passed by Hon‘ble Rajasthan High Court is tainted with serious legal infirmities. The judgment of Hon‘ble High Court is wrong in law and also violates Principle of Natural justice. There has been gross miscarriage of Justice and Appellants had not been given a fair trial. The judgment of Hon‘ble High Court is wrong on both facts and laws. Thus the appellants have the Locus Standi and Hon‘ble Supreme Court also has the jurisdiction to hear this case under Article 136. It is also submitted that it is a settled law that when there is grave injustice, then Hon‘ble Supreme Court is bound to interfere with the findings of court whose judgment is under appeal. Thus Special Leave Petition filed by appellants under Article 136 of constitution of India is maintainable.
2. 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.
It is humbly submitted that respondents Mrs. Shalini Goyal and Mr. Suresh Goyal are liable for offences punishable u/s 498A, 304B, sec. 302 r/w sec. 34 of I.P.C. The learned trial court acquitted Mrs. Shalini on ground of being a lady and Mr. Suresh on ground of being a youth of 30 years which is wrong in law. There are sufficient evidences to prove that deceased was continuously harassed and tortured for dowry. Mrs. Shalini Goyal administered poison to the deceased and his son Mr. Suresh forcibly held the body of deceased to make her drink the poisonous substance. Mr. Dinesh Goyal refused to take Mrs. Sharda to hospital and said ―Nothing has happened‖ which shows that he intentionally wanted to delay the medical assistance to deceased.
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It is clearly evident from statements of Prime Witnesses, medical evidences and other circumstantial evidences that deceased died in unnatural circumstances within 7 years of marriage and there were evidences that deceased was subjected to cruelty and harassment soon before her death in connection with demand of dowry. Thus all the accused persons are liable u/s 304B, 498A r/w Sec. 34 of I.P.C. The accused intentionally disappeared the bottle of poison, clothes of deceased in order to save themselves from conviction. Thus they are also liable u/s 201 of I.P.C. The dying declaration of the deceased in form of signs to PW-5 & 6 makes all the accused persons liable for murder of deceased u/s 302 of I.P.C.
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ARGUMENTS ADVANCED
1) THAT SPECIAL LEAVE PETITION FILED BY APPELLANTS UNDER ARTICLE 136 OF CONSTITUTION OF INDIA IS MAINTAINABLE
Art. 136 of Constitution Of India States that“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
1.1 There were many illegalities and irregularities of procedure and violation of the principles of natural justice resulting in absence of a fair trial and there was gross miscarriage of justice.
It is most humbly and respectfully submitted that learned trial court and Hon’ble High Court of Rajasthan acquitted the respondents on the grounds which are judicially incorrect and violate legal principles.
Learned trial court acquitted Mrs. Shalini on ground that she was a woman and acquitted Mr. Suresh on the ground that he was a youth of 30 years.2
Learned Trial court, although convicted Mr. Dinesh Goyal u/s 302 of I.P.C. but awarded him imprisonment for only 7 years.3
It is submitted that the 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 judgment of Hon’ble High Court is tainted with serious legal infirmities
It is most humbly submitted that Hon’ble High Court of Rajasthan overlooked the facts and evidences and refused to convict Mrs. Shalini and Mr. Suresh as well as acquitted Mr. Dinesh
1V.N.Shukla, Constitution of India. 12th Edition, Eastern Book Company, Pg. No. 533 2 Moot Proposition, Pg. No. 7, Line 2,3 3 Moot Proposition, Pg. No. 7, Line 3,4
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ignoring the facts and evidences. It is humbly submitted that High Court has acted perversely while appreciating the evidences. The conclusions of the High court are manifestly perverse and unsupportable from the evidence on record.
The Hon’ble High Court did not properly appreciate the evidences on record. It is submitted that death of deceased was homicidal and not accidental. The death was unnatural and it is clearly shown by chain of circumstantial evidences that respondents were liable for the death of the deceased. If it had been a suicide then the accused would have seriously made an attempt to save the life of deceased which was not done in this case. The deceased was taken to hospital after several hours of poison consumption and also the request of servants, relatives (who are also prime witnesses in this case) to take the deceased to hospital was ignored by the accused.
Further, no suicide letter was found, neither the circumstances were prima facie explaining the reason that why the deceased committed the suicide?
It is humbly submitted that there are enough evidences to prove that deceased was harassed for non-fulfillment dowry demand and she was also tortured and harassed ‘Soon before her death ’.
It is most humbly submitted that the High Court cannot deny to convict an accused for an alleged offence just because trial court had not convicted the accused on that charges, it is duty of High Court to re-appreciate the evidences and witness on record and then reach on any conclusion. In the present case the Hon’ble High Court said that since the trial court has not convicted the accused under section 498A or section 304-B, IPC, it could not be said that the deceased was being ill-treated or harassed with cruelty on account of dowry.4
That the murder would have been done with better poison5 or better weapon cannot be the ground for acquittal of accused but this was one of the grounds of acquittal of accused by Hon’ble High Court.
Thus it is most humbly submitted that grounds on which Hon’ble High Court acquitted the respondents are judicially incorrect and are against the weight and nature of evidences on record and thus, scrutiny and re-appreciation of facts and evidences is needed by this Hon’ble court in interest of justice.
4Line 33, pg. 7, Moot proposition 5Line 39, pg. 7, Moot proposition
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In case of, Indira Kaur and Ors. Vs. SheoLal Kapoor6 Hon’ble Supreme Court said that –
“Article 136 does not oblige this Court to fold its hands and become a helpless spectator even when this Court perceives that a manifest injustice has been occasioned. If and when the Court is satisfied that great injustice has been done it is not only the 'right' but also the 'duty' of this Court to reverse the error and the injustice and to upset the finding notwithstanding the fact that it has been affirmed thrice.”
It is humbly submitted that Hon‘ble Supreme Court held in case of Anvaruddin v. Shakoor7that in an appeal against acquittal the Supreme Court would be justified to interfere when approach of the High Court is far from satisfactory (as in the present case) and where the High Court has completely misdirected itself in reversing the order of conviction by trial court.8 Thus Hon‘ble Supreme Court is duty bound to interfere with the findings of Hon‘ble High court if it is satisfied that injustice has been done.
In case of Emporium v. Mohd. Ibrahim Naina9, It was observed that-“Jurisdiction has to be exercised sparingly. But that cannot possibly mean that injustice must be perpetuated because it has been done three times in a case.”
In case of, P.S.R. Sadhanantham v. Arunachalam and Anr.10It was held that –“Justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep concern of the law is to track down, try and punish the culprit, and if found not guilty, to acquit the accused”
It was held in the case of Sham Sunder v. Puran11―“Where the High Court has completely missed the real points requiring determination and has on erroneous grounds discredited the evidence, the Supreme Court would be justified in going into the evidence to avoid the grave injustice.”
1.2 This case is an Exceptional case
It is most humbly submitted that this case is an exceptional case as 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 .
6Indira Kaur and Ors. Vs. Sheo Lal Kapoor : (1988 )2SCC 488 7Anvaruddin v. Shakoor, AIR 1990 SC 1242. 8Gauri Shankar Sharma v. State of Uttar Pradesh, AIR 1990 SC 709 9 Emporium v. Mohd. Ibrahim Naina : AIR1985SC207 10P.S.R. SadhananthamVs. Arunachalam and Anr. : AIR 1980 SC 856 11Sham Sunder v. Puran : (1990) 4 SCC 731
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It is most humbly submitted that a fair trial is fundamental right of all the parties associated with the case, which in this case is violated that of appellants. 1.2.1 Question of Law is involved in the present case
It is most humbly submitted that this case involves 2 important questions of laws that needs to be decided by this Hon’ble court.
Whether the diary of deceased has evidentiary value? It is humbly submitted that Hon’ble high court did not consider diary of deceased as material evidence. The diary of deceased revealed about her harassment and torture by her in-laws. It is submitted that when death occurs in a matrimonial home, it is hard to find direct evidences, thus any evidence which can prove that deceased was subjected to cruelty and harassment, must not be ignored . Thus it is most humbly submitted that diary of deceased has a strong evidentiary value. Whether the statement of deceased in signs can be considered as verbal dying declaration? It is humbly submitted that Hon’ble High Court did not consider the act of deceased pointing towards Mr. Dinesh Goyal and Mrs. Shalini Goyal when asked by a relative as to what has happened, as dying declaration. It is most humbly submitted that dying declaration of a deceased cannot be circumscribed to words, written or spoken because when a person is not in position to speak, the statement of person has to be recorded in signs. The statement of deceased in form of signs could not be disbelieved just because she only pointed towards the accused. Her pointing towards the accused is consistent with the facts, evidences and course of events. Thus it is most humbly submitted that statement of deceased in signs must be considered as dying declaration in interest of justice.
In case of Pritam Singh v. State12, Hon’ble Supreme Court held that-“The wide discretionary power with which the court is invested under it is to be exercised sparingly and in exceptional cases only.”
In case of Sanwat Singh V. State of Rajasthan13, Hon’ble supreme court held that-“Supreme Court will grant special leave to appeal in exceptional cases where grave and substantial
12Pritam Singh v. State : AIR 1950 SC 169 13Sanwat Singh V. State of Rajasthan : AIR 1961 SC 715
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injustice has been done by disregard to the forms of legal process or violation of principle of natural justice or otherwise.”
Thus it is most humbly submitted that this case is an exceptional case.
It is humbly submitted that as held in case of Radha Mohan Singh @ LalSaheb v. State of Uttar Pradesh14 ―Re-appreciation of evidences is permissible only if an error of law or procedure and conclusions arrive at are perverse” and thus in this case there is need of re-appreciation of evidences by Hon‘ble Supreme Court.
1.3 Appellants have Locus Standi
In case of Amanullah and Ors. Vs. State of Bihar and Ors15., the Hon’ble Supreme Court in Para. 23, observed the general meaning of Locus Standi –The term 'locus standi' is a Latin term, the general meaning of which is 'place of standing'. The Concise Oxford English Dictionary, 10th Edn., at page 834, defines the term 'locus standi' as the right or capacity to bring an action or to appear in a court. The traditional view of 'locus standi' has been that the person who is aggrieved or affected has the standing before the court, i.e., to say he only has a right to move the court for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict Rule with regard to 'locus standi', allowing any person from the society not related to the cause of action to approach the court seeking justice for those who could not approach themselves. Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in the Code of Criminal Procedure. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him.”
It is most humbly and respectfully submitted that appellants, both State and the complainant both have Locus Standi in the present case. The appellants are aggrieved parties and are affected by the judgment of Hon’ble Rajasthan high court. Their rights have been violated.
It is most humbly submitted that Appellants have direct connection with the matter at hand. The private party i.e. Mr. Vikram Gupta is father of deceased, thus he has a direct connection with the
14Radha Mohan Singh @ LalSaheb v. State of Uttar Pradesh, AIR 2006 SC 951. 15Amanullah and Ors. Vs. State of Bihar and Ors : MANU/SC/0403/2016
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case. It is well settled that a private party can file an appeal under Article 136 challenging the order and judgment of High Court16 . Since, offence is a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. Thus state also has a direct connection with the case.
In case ofRamakantRai v. MadanRai and Ors. 17 , Hon’ble Supreme Court observed that –“The exercise of the power of this Court is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice, this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party has invoked the Court's jurisdiction.“
In case of Mohan Lal v. Ajit Singh , the Hon’ble supreme court held that –
“Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court, whether it is the State or a private party that invokes the jurisdiction of this Court” Thus it is humbly submitted that Appellants have Locus Standi in the present case. 1.4 Hon’ble Supreme Court has Jurisdiction to hear this appeal under Article 136 of Constitution of India
It is most humbly and respectfully submitted that this court has jurisdiction to hear the present case. It is submitted that power given by Article 136 is however, in nature of special and residuary power which is exercisable in cases where the needs of justice demand interference by Supreme Court of land. The article itself is worded in the widest terms possible.
As held in the case of Ashok Nagar Welfare Association v. R.K. Sharma18 ―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”
In case of Dhakeswari cotton Mills Ltd. V. C.I.T19, Hon’ble Supreme Court observed that-
“It is not possible to define the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations, whatever they
16State of Maharashtra v. Digambar, (1995)4 SCC 683 17RamakantRai vs. MadanRai and Ors. : AIR 2004 SC 77 18 Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335 19Dhakeswari cotton Mills Ltd. V. C.I.T : AIR1965SC65
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are, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it should be exercised in special and extraordinary situations
In case ofPritam Singh v. State20, Hon’ble Supreme Court held that-
“By virtue of this article; we can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases “
The Hon’ble Supreme Court can interfere in order to prevent injustice21 and errors of law22. Under Art. 136 Supreme Court is vested with an overriding power by virtue of which the Court may take step in to impart justice23. It may entertain by granting Special Leave against any order made by Magistrate, Tribunal or any subordinate court on its own discretion24.It is humbly submitted that this provision is applicable for all kind of appeals25 irrespective of the nature of the subject matter.
It is most humbly submitted that in an appeal under Article 136, Hon’ble Supreme Court may re-examine or reassess the evidences if it becomes necessary to prevent miscarriage of justice.26or if the decision of the High Court is based on conjectures and not sound reasoning27 or if the acquittal is perverse in nature and manifestly illegal28 , then Hon’ble Supreme Court would be justified in interfering with order of High Court. Thus it is most humbly submitted that this case falls under jurisdiction of this court under Article 136 of Constitution of India and this Hon’ble Court also has jurisdiction to re-assess and re-appreciate the facts and evidences on record. THUS IT IS MOST HUMBLY AND RESPECTFULLY SUMITTED THAT SPECIAL LEAVE PETITION FILED BY APPELLANTS UNDER ARTICLE 136 OF CONSTITUTION OF INDIA IS MAINTAINABLE.
20Pritam Singh V. State : AIR1950SC169 21Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 22Rafiq v. State of U.P. , (1980) 4 SCC 262 23Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036 24 Delhi Judicial Service Association v. State of Gujrat, AIR 1991 SC 2176. 25 Jagatjit Distilling Ltd. V. State of Punjab, (1974) 1 ILR 189(Punjab & Haryana). 26Nageshwar V. State of Maharashtra : AIR 1973 SC 165 27 State of U.P. V. Hari Ram : AIR 1983 SC 1081 28 State of U.P. V. Anil Singh : AIR 1988 SC 1998
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2 Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal are liablefor offences u/s 302, 304-B, 498-A, 201 r/w sec.-34 of I.P.C.
The chain of circumstantial evidences is so complete that it without any reasonable doubt, points towards the guilt of accused.
a. The essential ingredients of sec. 304-B, 498-A r/w sec.-34 of I.P.C. are fulfilled to hold Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal guilty for offences under these sections.
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.29
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.30
It is humbly submitted that as held in the case of Kaliyaperumal v. State of Tamil Nadu31 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 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--
29Criminal Manual, Universal Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 517-518 30Criminal Manual, Universal Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 589 31Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.
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(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.32
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.33
It is humbly submitted that Mr. Dinesh Goyal while having talk with Mr. Vikram Gupta for marriage of Mr. Suresh & Mrs. Sharda, demanded dowry of substantial value, commensurate with his social status and also asked him to spend minimum of Rs. 1 Crore on the wedding apart from the dowry. 34
The marriage was performed on 17.07.2012and the agreed dowry was paid to the entire satisfaction of the social family.35
In survey conducted by Commissioner of Income-Tax u/s 133A (5) wherein photographs of the wedding ceremony, venue etc. was video graphed, statements of event manager, decorator, electrician, caterers, taxi suppliers etc. were recorded. Photographs and Video recording showed assets and items given in dowry.36
Even after marriage Mrs. Sharda Goyal did not receive proper treatment from her in-laws. Mrs. Shalini Goyal was making dowry demands for Mercedes Benj Classic car and for a fixed deposit of Rs. 1 Crore. A F.D. of Rs. 25 lakh was given by Mr. Vikram Gupta.37
As held in the case ofDhan Singh v. State of U.P.38―The object being that everything, which is offending at any time i.e. at, before or after marriage, would be covered under definition of dowry but the demand of dowry has to be in connection with marriage.‖ Thus the above contentions proves that there was a dowry demand.
32Dowry prohibition Act, 1961, Sec-2.32 Garner, Black‘s Law Dictionary, 8th Edition 33 Garner, Black‘s Law Dictionary, 8th Edition 34Moot Proposition, para 3, line no. 9. 35Moot Proposition, para 3, line no. 9. 36Moot Proposition, para 6. 37Moot Proposition, para 7. 38Dhan Singh v. State of U.P., 2012 Cr LJ 3156(All)
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Daily diary of deceased Mrs. Sharda Goyal proves that there was a Dowry demand
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 in which she was noting every incident minutely. According to sec.-45 of Indian Evidence Act- opinions upon that point of persons especially skilled in questions as to identity of handwriting are relevant facts and sec.-47 of Indian Evidence Act-opinion as to handwriting is relevant. The diary is a very important evidence in proving that there was dowry demand by the accused. The contents of diary is admissible as an evidence and can be relied upon as it corroborates certain circumstantial evidences in this case. Thus, it humbly submitted that there was a dowry demand in this case and all the accused are liable under sec. 3/4 of Dowry Prohibition Act, 1961. 2.1.2. The deceased Mrs. Sharda Goyal was subjected to cruelty and harassment by her husband, mother-in-law, and father-in-law for demand of dowry both after marriage. 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.39
The contentions which prove that there was cruelty and harassment with deceased are as follows-:
It is humbly submitted that after marriage Mr. Dinesh Goyal, Mrs. Shalini Goyal started ill-treatment with deceased Mrs. Sharda Goyal for demand of dowry. With mental disturbance and non-congenial atmosphere Mrs. Sharda Goyal could not conceive. Her relations with her husband became strained. Her mother-in-law threatened to give birth to a baby boy, within one year, else she would be thrown out and she would re-marry her son.
39Criminal Manual, Universal Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 589
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A written apology was tendered by Mrs. Shalini Goyal after the intervention of family friends for the compromise.40
Mrs. Sharda Goyal gave birth to a baby girl, but the Goyal family was not happy and was cursing Mrs. Sharda Goyal. No usual ceremonies and festivities were organized. She was cursed, rebuked and sent to parental house.41
In the case of State of Karnataka v. Balappa42it was held that “The conduct of the accused husband and his father in not accepting the birth of Baby Girl was held as amounting to cruelty”
Mr. Suresh Goyal himself apologized for mis-treatment of his family and Mrs. Sharda returned to Goyal house but relationship between Sharda Goyal and her husband continued to be estranged due to demand of dowry and excessive drinking of Suresh Goyal who started abusing and beating in the presence of servants.43
In the case of Rita v. Brij Kishore44it was held that ―A habit of excessive drinking is a vice and cannot be considered a reasonable wear and tear of married life. It may constitute treatment with cruelty. It may cause great anguish and distress to the wife and for her living together can be not only miserable but also unbearable.‖
In case ofP Bikshapathi v. State of A.P.45it was held that- Presumption under Sec. 113B was drawn from the drinking, late coming and beating habits of husband.Thus the act of Mr. Suresh Goyal of excessive drinking and beating his wife ammounts to cruelty. Thus, it is humbly submitted that all the accused are liable for offence u/s 498A and Sec. 3 of Protection of woman from Domestic Violence Act, 2005. 2.1.3. Mr. Dinesh, Mr. Suresh and Mrs. Shalini have committed the Dowry death of deceased Sharda Goyal. It is humbly submitted that on 25. 05. 2015all the accused forcibly administered the poison named ―NUVAN‖ to the deceased Mrs. Sharda Goyal. The deceased died due to organo phosphorus poisoning and delay in medical treatment.
40Moot Proposition, para 7. 41Moot Proposition, para 8 42State of Karnataka v. Balappa, 1999 CrLJ 3064(Kant.) 43Moot Proposition, para 8 44Rita v. Brij Kishore, AIR 1984 Del 291. 45P Bikshapathi v. State of A.P.
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According to Hon‘ble Supreme Court in the case of Birendar Poddar v State of Bihar46― it is true that in cases where death takes place within the matrimonial home , it is very difficult to find direct evidence.‖
As held in the case of Ratan Lal v. State of Madhya Pradesh47 ―In dowry death cases and in most of such offences direct evidence is hardly available and such cases are usually proved by circumstantial evidences.‖
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.48 The prime witnesses and circumstantial evidences which proves that there was cruelty with deceased soon before her death and she was administered poison by her in-laws and husband 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 High Court – the evidence of PW-1 Mr. Sanjay Kumar, a shopkeeper is not reliable. The Hon‘ble court did not mentioned the ground on which his statement was not relied upon. It is humbly submitted that he is a very important and a disinterested witness in the case. Thus, his statement shall be reliable and admissible.
2. PW-2 Mr. Surendra Kumar, a servant heard the shrieks and cries of the deceased and extreme weeping of her child. He stated thatthe deceased was crying ―Give me salty water. I do not want to die.‖
3. PW-3 Mr. Ved Prakash& PW-4 Mr. Om Prakash, the servantsstated 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. Shri Om Prakash, PW-4, requested Shri Dinesh Goyal and Suresh
46BirendarPoddar v State of Bihar, (2011) 6 SCC 350. 47Ratan Lal v. State of Madhya Pradesh, 1994 Cri LJ 1684. 48Criminal Manual, Universal Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 655
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Goyal to take the deceased to the hospital immediately. However the accused replied that there was no necessity therefore and that deceased would be all right very soon.
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. When they asked the accused what had happened, he reported that it was his private life and they need not bother. The accused refused to take the deceased to the hospital on the pretext that nothing had happened and he himself being father-in-law could look after her. They also smelt the poisonous odour in the room.
In the case of Rizan v. State of Chhattisgarh49it has been held regarding ―interested witness‖ that the relationship is not the factor to affect the credibility of witness. Thus PW-5 Mr. Anil Kumar & PW-6 Mr. Shiv Kumar, relatives of the deceased are credible witnesses in this case. From the statements of the prime witnesses mentioned above it is clearly evident that the death of deceased took place in abnormal circumstances. If it had been the case of suicidal poisoning or accidental poisoning the accused would have had made the serious efforts to save life of Mrs. Sharda Goyal by giving her appreciate medical treatment or by taking her to hospital. The request of servants and relatives of deceased to take her to the hospital was also denied. This act of all the accused shows that a mensrea i.e. evil intention for murder of deceased was present. Theactusreus in this case was performed by the accused in two parts- (i) by committing an act of administering the poison to the deceased. (ii) By act of omission of duty of care and proper medical treatment to the deceased.
The expression ―otherwise than under normal circumstances‖ means a death not taking place in the course of nature and apparently under suspicious circumstances if not caused by burns or bodily injury.50 It is humbly submitted that in this case the death of deceased was not Natural death and it occurred under suspicious circumstances.
In the similar case of Kulwant Singh & Ors. v. State of Punjab51 ―The wife was harassed by her husband and in-laws for dowry and that she died under abnormal circumstances due to aluminum
49Rizan v. State of Chhattisgarh, AIR 2003 SC 976. 50Kailash v. State of M.P. AIR 2007 SC 107
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phosphide poisoning. The accused were held guilty of offences u/s 304-B & Sec. 498A of the I.P.C.‖ and in case of Butan Sao v. State of Bihar52 ―where death was proves to have been caused by poisoning and there was consistent evidence of torture for demand of dowry, it was held that the fact husband killed his wife stood proved and conviction was proper. It is humbly submitted that the information to police about the incident at around 4:30 a.m. was given by servant PW-4 Om Prakash, not by any of the member of Goyal family. 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.
―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 Karnataka53
“The word “soon before” in sec. 113B of Indian Evidence Act cannot be limited by fixing the time limit. It is left to be determined by the courts depending upon the facts and circumstances of the case” as held in the case of Kailash v. State of Madhya Pradesh54
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.
51Kulwant Singh & Ors. v. State of Punjab, AIR 2013 SC 1567. 52Butan Sao v. State of Bihar, 2000 Cr LJ 3122 (Pat). 53G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152 54Kailash v. State of Madhya Pradesh, AIR 2007 SC 107
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Sharda Goyal died at the hospital.It is humbly submitted that according to PW-8 Dr. O.P. Chaudhary contusions was reddish in colour. This signifies that bruises were fresh.55 The findings depicts the marks of cruelty & harassment over the deceased. 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 cyanidepoisoning 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 Asphyxia56 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 intraorbital 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.
55Gautam Biswas, Riview of forensic Medicine & Toxilogy, 2nd edition, Pg. 170 56Gautam Biswas, Riview of forensic Medicine & Toxilogy, 2nd edition, Pg. 138
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Medico-legal Importance
Abrasions give an idea about the site of impact and direction of force.
They may be the only external signs of seriousinternal injury.
Age of injury can be determined which helps tocorroborate with alleged time of assault. The bluish colour of abrasions and bruises means that they were made before 3-4 hrs. This corroborates the findings of ante-mortem.
Age of the injury can be determined by the color changes.
Degree of violence may be determined from their size. The size of the bruises, contusions mentioned in postmortem report depicts the degree of cruelty and harassment done with the deceased soon before her death.57
It is humbly submitted that where evidence of all eye witness reliable and well corroborated by medical and other evidences on record that accused had intention to kill the deceased then the accused should be convicted.58 Having regard to the number of injuries inflicted on the deceased it is not possible to uphold the contention that there was no intention to kill.59
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 in which she was noting every incident minutely.
In case of State of Gujrat v.Raghu @ Raghavbhaivashrambhai and Ors60. It was held that any documentary belonging to the deceased is a valid evidence to prove the culpability of the accused.
The circumstantial evidences and medical evidences corroborates the content of diary which mentions about cruelty and harassment with the deceased.
The Hon‘ble High Court acquitted the accused Mr. Dinesh Goyal from sec. - 302 and all other accused were also acquitted from sec. 302 by Trial court. The Supreme Court held in the case of Rameshwar Das v. State of Punjab61that where there was sufficient evidence to prove that there was Dowry demand and death has also taken place within 7 years, the presumption arising under Sec. - 304-B did not become automatically rebutted by the fact that the accused persons had been
57Gautam Biswas, Riview of forensic Medicine & Toxilogy, 2nd edition, Pg. 171 58Robba Ramanna Dora v. State of Andhra Pradesh, 2000 Cr LJ 118(AP) 59Prabhu v. State of Madhya Pradesh, (1991) Cr LJ 1373. 60State of Gujratv.Raghu @ Raghavbhai Vashrambhai and Ors. 61Rameshwar Das v. State of Punjab, (2007) 14 SCC 696.
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acquitted under Sec. 302. There were 7 major injuries on the deceased which were not self-inflicted.Thus they were homicidal. This section applies irrespective of the fact whether there is homicide or suicide.62
It is humbly submitted that accused Mr. Dinesh Goyal in his statement under sec. – 313 of Cr. P.C. stated that deceased accidently consumed some drugs and had asked him to give her salty water but the poison NUVAN, not any drugs were consumed by the deceased. He also stated that he called Dr. O.P. Chaudhary but he was called by the police. He came after the police arrived at spot at around 6:00 a.m.
It is humbly submitted that as held in the case of Wakkar v. State of Uttar Pradesh63 ―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.”
It is humbly submitted that chain of evidences must be complete with fully established circumstances. It should be of conclusive nature.64 From the above contentions and arguments it is clearly evident that each and every circumstances leading to dowry death of deceased is clearly established by reliable medical evidences, evidences of dowry demand and cruelty and by the statements of prime witnesses. These evidences clearly form a chain of events, according to which in all probability all the accused persons are liable for dowry death of deceased Sharda Goyal.
According to Hon’ble High Court PW-8 Dr. O.P. Chaudhary and PW-9 Dr. Piyush Kapila could not rule out the possibility of the victim committing suicide. It is humbly submitted that it is not duty of doctor to opinion that whether the act was murder or suicide? His duty is to give exact report regarding about cause of death and injuries. The court shall rely on other evidences to reach on conclusion that whether an act was a homicide or suicide. It is humbly submitted that no suicide letter was found.
It is humbly submitted that in case of Thyssen Stahlunion GmbH v. The Steel Authority of India65, It was held that- duty of the expert is to depose and not to decide. The only function of the
62Bhagwan Das v. Kartar Singh, AIR 2007 SC 2045. 63Wakkar v. State of Uttar Pradesh, (2011) 3 SCC 306. 64Arvind v. State, 1999 (4) SCC 4861. 65Thyssen Stahlunion GmbH Vs. The Steel Authority of India : AIR2002Delhi255
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expert is to furnish the data with the necessary scientific criteria so as to enable the judge to come to an independent conclusion. Data and analysis are provided by the expert. Conclusions are drawn by the Court. In certain cases expert may give his opinion. But such an opinion is not binding on the Court. In other words, Court does not become functus officio to draw the conclusion if the expert has also given the opinion or the finding.
In the case of T.P. Divetia v. State66 it was held that-In case of conflict of opinion of two doctors, the opinion of the doctor who actually examined the injury and held the post-mortem examination must be preferred.According to the S.C. guidelines on medical Negligence- Difference in opinion cannot be cited as negligence. The Hon’ble High Court contended in its decision that there was many differences in ante-mortem and post –mortem findings, the no. of injuries had increased from 2 to 6 in the post-mortem report. This was because while ante-mortem examination, the deceased was in serious condition, needed to be referred to hospital immediately so the complete examination was not possible.
As held in case of The State of Maharashtra and ors. v. Rajkumar and ors.67- There is no reason to discard the medical evidence corroborating the statement of the eye-witnesses i.e. direct evidence.
In the case of Sanjay Kumar Kesharvani v. State of Chattisgarh68held that -There is consistency in the evidence of witness to prove that appellant has committed cruelty and torture upon deceased in connection with dowry demand.
In the case of MafabhaiNagarbhaiRaval v. State69 held that-Unless there is something inherently defective in medical report, the court cannot substitute its own opinion for that of the doctor.
As held in case of A.M. Kunnikoya v. State of Kerla70 ―It is well settled that if evidence of eye –witness are held to be reliable and inspires confidence then accused cannot be acquitted solely
66T.P. Divetia v. State, AIR 1992 SC 2193 67The State of Maharashtra and ors. v. Rajkumar and ors. 68Sanjay Kumar Kesharvani vs. State of Chattisgarh 69MafabhaiNagarbhaiRaval v. State, AIR 1992 SC 2186. 70A.M. Kunnikoya v. State of Kerla, (1993) 1 Crimes 1192 (SC)
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on the ground that some superficial injuries found on a person, had not been explained by prosecution‖
As held in case of Mohan Singh v. State of Madhya Pradesh71 ―mere variance of prosecution story with the medical evidences, in all cases, should not lead to conclusioninevitablyto reject prosecution story.‖ Thus, both ante-mortem and post-mortem findings are reliable and between the two, post-mortem findings are more conclusive in nature. The difference between the two cannot be ground for a reasonable doubt for non-conviction of accused persons. 2.1.4. The act done by all accused persons was in furtherance of common intention.
Sec.-34 of I.P.C. Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in same manner as if it were done by him alone.72
As held in case of Ashok Kumar v. State of Rajasthan73 ―In dowry deaths motive for murder exists and what is required of courts is to examine as to who translated it into action as motive viz. individual or family.‖
It is humbly submitted that this case is based on the circumstantial evidences and their relation with the medical evidences. The three accused Mr. Dinesh, Mr. Suresh and Mrs. Shalini in collusion forcibly administered the poison to kill her, there presence at the spot and also the act of omission of duty of care and proper medical treatment to the deceased is testified by the statement of PW-2, 3, 4, 5 & 6. The evidences of dowry demand and cruelty along with the contents of hand written diary of deceased proves that all the three accused did all the guilty acts with her in furtherance of common intension. As in this case the evidence of eye-witness regarding assault to deceased by accused persons was truthful, reliable and clearly corroborated by medical evidence, the common intention of accused persons to commit murder of deceased is also proved.74
If some act is done by the accused in furtherance of common intention of his co-accused, he is equally liable as his co-accused.75
71Mohan Singh v. State of Madhya Pradesh, AIR 1999 SC 883. 72Criminal Manual, Universal Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg.411 73Ashok Kumar v. State of Rajasthan, (1991) 1 Crimes 116 (SC). 74Ratan Debnath v. State of Tripura, 2000 Cr LJ 237(Gau.) 75State of Punjab v. Fauja Singh, (1997) 3 Crimes170 (P&H)
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In the case of ShreekantiahRamayya76 Supreme Court held that-It is the essence of this section that the person must be physically present at the actual commission of the crime and must actually participate in the commission of the offence in some way or other at the time crime is actually being committed.
In the caseState of Punjab v. Surjit Singh77, Supreme Court held that-Even though Injury inflicted by Accused No.1 and not by Accused No.2, the latter would be as guiltier of the offence of murder as the former because of the common intention forged between the two. Thus it is humbly submitted that Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal were present at the crime scene and all of them had participated in the commission of the crime. Thus they shall be liable for offences under alleged sections of I.P.C. read with Sec.-34 of I.P.C. 2.1.5. All the accused person are liable for offence under Sec. – 201 of I.P.C.
Sec. 201- Causing disappearance of evidence of offence, or giving false information to screen offender- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of offence to disappear, with the intention of screening offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false is liable for causing disappearance of evidence, or giving false information to screen offender.78
It is humbly submitted that Section 222 of Cr.P.C. clothes the court with power to convict a person of an offence which is minor in comparison to one for which he is charged and tried.79 All the accuse persons are liable of offences u/s 304B, 498A r/w/ Sec. 34 of I.P.C. The contentions which also make them liable for offence under section-201 of I.P.C. are as follows-
76ShreekantiahRamayya 77State of Punjab v. Surjit Singh 78Criminal Manual, Universal Law Publishing Co Pvt. Ltd.,2013, The Indian Penal Code, pg. 470 79Sukhram v. State of Maharashtra, AIR 2007 SC 3050.
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1. Disappearance of bottle of poison ―NUVAN‖ –It is humbly submitted that the accused had disappeared the evidences with the intention of screening them from legal punishment. The accused Dinesh Goyal in his Statement under Sec 313 of Cr.P.C did not deny the factum that the deceased had died due to poison and it is also proved by the PW-1 the Shopkeeper that the poison had been purchased by Dinesh Goyal under the Trade name NUVAN. But no such bottle of poison or any utensil by which the poison was given to the deceased had been discovered from the crime spot.
2. Disappearance of Clothes-It is humbly submitted that the clothes of the deceased had not been produced. The clothes of the deceased is an important evidence as it is mentioned in the facts that On the day of the incident the clothes of the deceased were drenched and water was splashed on the bed as well as on the floor of the room. Therefore, it can be inferred that if the clothes were found then it will be helpful to find the sample of poison which can be found on the clothes of the deceased when the poison was forcefully given to her by her mother-in-law.
3. Fingerprints- It is humbly submitted that as the bottle of poison and the clothes of the deceased was not found. Thus, the fingerprints cannot be found on the bottle of poison or on the clothes of the deceased which would be helpful in proving the guilt of the accused beyond reasonable doubts. In case of Jaspal v. State80, it was held that-The Finger Print Examination is conclusive proof as it is an exact science.
It is humbly submitted that all the evidences mentioned above were direct evidence in the case, their forensic examination report would have made the case stronger against the accused persons, the report of fingerprint examination of bottle and utensil would have made the case more clear so in order to save themselves from conviction, the accused persons caused disappearance of evidences. Thus they shall be liable under sec. -201 of I.P.C. 2.1.6. All the accused person are liable for murder of deceased Mrs. Sharda Goyal u/s 302 r/w Sec. – 34 of I.P.C.
80Jaspal v. State, AIR 1979 SC 1708.
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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.81
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.82
It is humbly submitted that in Rajibir v. State of Haryana83a 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)84 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.
It is humbly submitted that mensrea i.e. evil intention for murder of deceased was present. It is clearly evident from the fact that the request of servants and relatives of deceased to take her to the hospital was denied. Having regard to the number of injuries inflicted on the deceased it is not possible to uphold the contention that there was no intention to kill.85
The actusreus in this case was performed by the accused in two parts- (i) by committing an act of administering the poison to the deceased. (ii) By act of omission of duty of care and proper
81 Criminal Manual, Universal Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 507 82Criminal Manual, Universal Law Publishing Co Pvt. Ltd., 2013, The Indian Penal Code, pg. 513 83Rajibir v. State of Haryana, AIR 2011 SC 568. 84Jasvinder Saini &Ors. v. State (Govt. of NCT of Delhi), (2013) 7 SCC 256. 85Prabhu v. State of Madhya Pradesh, (1991) Cr LJ 1373.
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medical treatment to the deceased. The person committing the act knew that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. The fact that death of deceased was an unnatural death, there was cruelty and harassment with deceased soon before death in connection with demand of dowry makes the accused persons liable under Sec. - 304B and 498A. The evidence in this case which permits the conviction of accused under Sec. 302 is the Dying Declaration of deceased. 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 but she was in fit medical condition to respond to the questions of PW-5 & 6 in form of signs. The Hon’ble High Court did not admitted the dying declaration of deceased but the contentions which make it an admissible evidence are mentioned below.
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.
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As held in case of WaikhomYaima Singh v. State of Manipur86there 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. The facts and precedents which fulfills the requirements of this case are as follows- The act of the deceased of pointing finger towards the accused in response to question asked by PW-6 & 7 is a Verbal Statement and is admissible under this section because of the following-:
A dying declaration may be oral or written. It may be proved by the evidence of witness who heard it made. If the dying person is unable to speak, but is able to make signs in answers to questions put to him, this can be recorded and it is considered as ‗verbal statement‘.
In the case of Queen-Empress v. Abdullah87it was held that ‗verbal‟ means by words. It is not necessary that words should be spoken. If the significance of the signs made by a deceased person in response to the questions put to her shortly before her death is established satisfactorily to the mind of the court, then such questions, taken with her assent or dissent to them, clearly proved, constitute a verbal statement as to the cause of her death.
In case of sup. Pandian K. Nadar v. State of Maharashtra88it was held that the questions and signs taken together might properly be regarded as „verbal statement‟ made by person as to the cause of her death within the meaning of this section, and were, therefore, admissible under this section.
In case ofMeesalaRamakishan v. State of A.P.89 it was held that-A dying declaration made by nods, or gestures or by sign language has been held to be admissible and also on the facts of the particular case, to be reliable.
Dying Declaration made to relatives is admissible.
86WaikhomYaima Singh v. State of Manipur, 2011 Cr LJ 2673. 87Queen-Empress v. Abdullah, (1885) 7 All. 385 FB. 88sup. Pandian K. Nadar v. State of Maharashtra, 1993 Cr LJ 3883 (Bom), the deceased indicated the accused through gestures, relied upon. 89MeesalaRamakishan v. State of A.P., (1994) 4 SCC 182.
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In case of Bhoora Singh v. State of U.P90it was held that-In case of dowry death it was held that Dying Declaration could not be rejected merely on the ground that it was made to the relatives of the deceased.
In the case of Rizan v. State of Chhattisgarh91it has been held regarding ―interested witness‖ that the relationship is not the factor to affect the credibility of witness.Thus PW-5 Mr. Anil Kumar & PW-6 Mr. Shiv Kumar, relatives of the deceased are credible witnesses in this case.
It was held by Supreme Court that noting made by the deceased in diary about cause of her death would have some evidentiary value as a Dying Declaration.92 Thus the contents of diary of deceased which leads to inference that she had danger of life by her in-laws have evidentiary value as dying declaration.
It is humbly submitted that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.93 In this case the gesture of deceased considered along with circumstances of the scene in which it was made, it shall be considered and be admissible as a Dying declaration. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected94 and even it is brief, it is not to be discarded.95
As held in case of Prakash v. State of Madhya Pradesh96that where deceased victim knew the assailants and gave their names to family member at first opportunity, her dying declaration can be relied upon.
As held in case of S.D. Soni. v. State of Gujrat97that in case of murder in which the conclusion of guilt is drawn by prosecution it must be fully established beyond all reasonable doubt and consistent with the guilt of accused.
There is a proof beyond all reasonable doubts
90Bhoora Singh v. State of U.P. , 1992 Cr LJ 2294. 91Rizan v. State of Chhattisgarh, AIR 2003 SC 976. 92Ramesh Kumar v. State of Chattisgarh, 2001 Cr LJ 4724 (SC). 93Tarachand v. State of Maharashtra, AIR 1962 SC 130. 94 State of Maharashtra v. KrishnamurthiLaxamipati Naidu, AIR 1981 SC 617. 95Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1 96 Prakash v. State of Madhya Pradesh, AIR 1993 SC 65. 97S.D. Soni. v. State of Gujrat, (1991) Cr LJ 330 (SC)
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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 case98. Also law does not require conclusive proof, but only proof beyond reasonable doubt99. It is humbly submitted that the guilt of the accused has been proved beyond all reasonable doubt. All the direct and circumstantial evidences – Diary of the deceased, statement of prime witnesses, medical evidences and dying declaration by the deceased prove the guilt of the accused beyond any reasonable doubt.
Thus, it is humbly submitted that in this case on the basis of Dying Declaration of deceased, other circumstantial evidences, medical evidences, statement of PW‘s it is true that the chain of events proved by the prosecution show that within all human probability the offence have been committed by the accused persons with the motive suggested by the prosecution, which induced the accused persons to follow a particular path.100 There is no second view possible in this case and thus all the accused persons shall be convicted u/s 302 of I.P.C. According to Hon’ble JusticeMarkandeyKatju, Judge, Supreme Court of India ―In my opinion dowry death is worse than murder but surprisingly there is no death penalty for it whereas death penalty can be given for murder. In my opinion the time has come when law be amended and death sentence should be permitted in case of dowry deaths‖ Thus, it is most humbly and respectfully prayed that Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal shall be awarded death sentence for such a heinous and barbaric offence. PRAYER
98 State of MP v. Dharkola 2005 CriLj 102 (SC) 99 State of Kerala v. Bahuleyan AIR 1987 SC 482 100Sarbir Singh v. State of Punjab, 1993(1) Crimes 616 (SC)
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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 maintainable in Hon‘ble Supreme Court of India.
2. The accused Mr. Dinesh Goyal, Mr. Suresh Goyal and Mrs. Shalini Goyal are liable for offences punishable u/s 302, 304B, 498A, 201 r/w Sec.-34 of I.P.C. and Sec. 3 of Protection of woman from Domestic Violence Act, 2005.
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 Appellants shall Duty Bound Forever All of which is most humbly prayed Counsels for the Appellants
