RBUSL 1ST NATIONAL MOOT COURT COMPETITION, 2015

TEAM CODEIN THE HONOURABLE PUNJAB & HARYANA HIGH COURT

Memorial Filed On Behalf Of the AppellantCriminal Appeal no. : /2015

IN THE MATTER OF

STATE OF PUNJAB APPELLANTVERSUSDR. MUKESH & OTHERS RESPONDENT

APPEAL FILED UNDER SECTION 378 OF THE CODE OF CRIMINAL PROCEDURE, 1973

Most Respectfully Submitted to the Honble Judges of the Punjab & Haryana High Court COUNSELS APPEARING ON BEHALF OF APPELLANT

Table of ContentsAbbreviationsIIIIndex of AuthoritiesIVStatement of JurisdictionVIIStatement of FactsVIIICharges FramedXISummary of ArgumentsXIIWhether the accused is liable under section 302 of IPC to be read with Section 34 of IPC or notXIIWhether the accused is liable under section 364 read with section 34 of IPC or notXIIWhether the accused is liable under section 18 of Transplantation of Human Organs Act, 1944 or not?XIIArguments11.Whether the accused is liable under section 302 of IPC to be read with Section 34 of IPC or not12.Whether the Accused liable under section 302 of IPC or Not.23.Whether the accused is liable under section 18 of Transplantation of Human Organs Act, 1944 or not?5Prayer7

Abbreviations A.I.R. All India Reporter A.P. Andhra Pradesh All. Allahabad Anr. Another Cri. Criminal Cr.L.J Criminal Law Journal Cr.P.C Code of Criminal Procedure H.C High Court Honble Honourable I.P.C Indian Penal Code ILR Indian Law Reporter M.P. Madhya Pradesh Ors. Others P&H Punjab and Haryana Para. Paragraph Pg. Page Pvt. PrivateRaj. RajasthanR.C.R Recent Criminal Reporter SC Supreme Court SCC Supreme Court Cases SCR Supreme Court Reporter Sec. Section U.P. Uttar Pradesh UOI Union of India v. Versus Vol. Volume W.B.West Bengal

Index of Authorities

Statutory Compilations1) Indian Evidence Act, 18722) The Code of Criminal Procedure, 19733) The Indian Penal Code, 1860

Books1) S.C. Sarkar, Commentary On Law Of Evidence, Allahabad, Dwivedi Law Agency (3rd ed. Vol 1&2, 2009)2) Sir John Woodroffe And Syed Amir Ali, Law Of Evidence, Dr V Kesava Rao, , Nagpur Wadhwa & Co. (18th ed. Vol 1&2, 2009)3) A.N.Saha, Supreme Court on Criminal Law (Prints Asia, 2005)4) B.N. Banerjee, Law of Criminal Appeals Revision, References and Review (Lexis Nexis Butterworth New Delhi, 2003)5) B.R Sharma, Forensic Science In Criminal Investigation & Trial (Universal law Publishing Co. Pvt. Ltd. New Delhi, 2007)6) Ejaz Ahmad, Law of Crimes (Rajasthan Law House Jodhpur, 1994)7) Joga Rao, Evidence: Cases and Material (Student Series) (Lexis Nexis Buttersworth New Delhi, 2003)8) John Woodrofee, Commentaries on Code of Criminal Procedure (Law Publishers (India) Pvt Ltd. Allahabad, 2005)9) K.D. Gaur, Criminal Law: Cases and Materials, 5th Edition, 200810) K.I. Vibhute, PSA Pillais Criminal Law (Lexis Nexis Butterworths New Delhi, 2008)11) M.L Sawhney, Supreme Court Criminal Cases Digest, (Universal Printing Press Jaipur, 2005)12) N.V Paranjape, Criminology and Penelogy (Central Law Publisher Allahabad, 2006)13) P S A Pillai, Criminal Law (Lexis Nexis Butterwords New Delhi, 2007)14) Pandit Taranga, Supreme Court Ready Referencer on Crimes (Sodhi Publications New Delhi, 2007)15) R.A Nelson, Indian Penal Code (Lexis Nexis Butterworth New Delhi, 2003)16) R.M Jhala. & V.B. Raju, Medical Jurisprudence (Eastern Book Company Lucknow, 1981)17) R.P Kathuria, Supreme Court on Criminal Law (Ashoka Law House New Delhi, 2006)18) R.P. Kathuria, Law of Crimes and Criminology Exhaustive and Critical Commentary on Indian Penal Code (Vinod Publication Delhi, 2007)19) R.S. Verma, I.B.S. Thockhom, Commentary on Rape Kidnapping and Abduction (Verma Publications Delhi, 2001)20) R.V. Kelkar, Criminal Procedure (Eastern Book Company Lucknow, 2007)21) Ratanlal & Dhirajlal, The Indian Penal Code (Wadhwa and Company Nagpur, 2008)22) T. Bhattacharya, Indian Penal Code (Central Law Agency Allahabad 2001)

Dictionaries1) Blacks law dictionary, (11th Ed.1999)2) Oxford English Dictionary OUP 3) P. Ramanatha Aiyars The Law Lexicon, The Encyclopedic Law, (2nd Ed, reprint 2009) 4) Websters New Encyclopedia Dictionary, (2002)

Websites1) www.manupatra.com2) www.indiankanoon.org3) www.judis.nic.in

Table of CasesAlagupandi @ Alagupandian vs State Of Tamil Nadu AIR 2012 SC 7265B. N. Srikantiah & Others vs The State Of Mysore AIR 1998 SC 671Baleshwar Mandal v. State of Bihar, 1997 Cr. L. J 4084 at p. 4085 (S.C.).4Gurdit Singh vs State Of Punjab And Another P&H HC 20095Hari Kishan & Anr vs Sukhbir Singh & Ors 1988 SCR Supl. (2) 5711Laxman V. State of Maharashtra SC 20021Namdeo v. State of Maharashtra, (2007) 14 SCC 1504Padala Veera Reddy v.State of A.P, A.I.R 1990 S.C. 79.4Paramsivam v State Tr. Insp. of Police 2015 (1) RCR (Criminal) 305 SC4Parkash vs State Of Haryana SC AIR 20034Pawan Kumar v.State of Haryana, A.I.R 2003 S.C 298.4Sanatan Naskar v. State of West Bengal 2010 (3) RCR (Cri) 629 (S.C4Sanatan Naskar v. State of West Bengal 2010 (3) RCR (Cri) 629 (S.C.).4Shankar vs State Of Punjab P&H HC 20115Sucha Singh v. State of Punjab, A.I.R. 2003 S.C. 3617.4

Statement of Jurisdiction

The appellant humbly submits this memorandum for a Criminal Appeal filed before this Honble Court. The appellants have approached the Honble Court under Section 378 of Criminal Procedure Code, which states that appeal in case of acquittal No other remedy is available to the appellants except to approach this Honble Court challenging the decision of the Trial Court.

Statement of Facts

1. Amrik Singh is a well settled engineer in Sector 68, Mohali, Punjab. Amrik married Sukhman Kaur in 1996. A female child named Gurleen was born to the couple on 5th May, 2000 after undergoing treatment. Unfortunately on 23rd January, 2004 Sukhman Kaur met with a road accident, in which she expired. Amrik Singh was finding it hard to carry on his job and take care of his 4 year old daughter. On persuasion of his relatives he entered into second marriage with one Sandeep Kaur on 12th February, 2005. Sandeep Kaur seemed to be good by nature and promised to take care of Gurleen after marriage. Everything was going on well. But with passage of time Sandeep expressed a desire to bear her own child. She always insisted that it will also be in Gurleen's benefit if they will have a male child as she will get company of her brother. Amrik Singh got convinced. However Sandeep failed to conceive. Even the best medical treatment failed in their case. Sandeep started visiting a number of Babas in her craving for male child. Amrik Singh accompanied Sandeep on one or two occasions. She also performed several rituals for bearing a male child on suggestion of Babas.

2. Due to Sandeeps pre-occupation with the desire to have the male child, Gurleen started feeling ignored and neglected. Gurleen complained about the neglect but there was no change in the behaviour of Sandeep. Finally, Gurleen found solace with her neighbour Dr. Mukesh Arora and his wife Dr. Swati Arora who were employed as senior doctors in Sanjeevni Hospital, Mohali. Dr. Mukesh and Dr. Swati were over affectionate towards Gurleen. As the couple was issueless, they started treating Gurleen as their daughter. Gurleen used to visit their residence whenever she felt lonely and stressed. On one or two ocassions, Gurleen had even visited the doctor couple without informing her parents. On Amrik Singhs objection Gurleen responded that she preferred the company of the doctor couple rather than her father and step mother. In 2009, Sanjeevni Hospital was much in news for running an illegal kidney organ trade. Both Dr. Mukesh Arora and his wife, Dr. Swati Arora were interrogated by the police. However the clean chit was given to them by the authorities on the basis of benefit of doubt.3. Suddenly from 5th July, 2012 onwards Sandeep started showing great love towards Gurleen and frequently kept on asking her to accompany her to an unknown place. However, Gurleen did not show any interest for the same. On 15th July, 2012 at about 1:30 p.m., Sandeep got annoyed and scolded Gurleen over the issue of not accompanying her to some Baba who had specifically asked Sandeep to bring Gurleen along with her. Gurleen left the house immediately. Sandeep informed Amrik Singh on the phone around 6:00 p.m. that Gurleen had left the house in anger after an argument with her in anger shouting that she will never return. Amrik Singh immediately started from his place of work and reached home at about 6:45 p.m. He searched for Gurleen everywhere, but in vain. He also inquired about Gurleen from Dr. Mukesh over the phone, but Dr. Mukesh told Amrik Singh that both he and his wife are in Delhi for a conference and will return on 16th July, 2012 in the evening. Now Amrik Singh became more desperate. When all his efforts to find Gurleen got exhausted, Amrik Singh became suspicious that Gurleen might have been kidnapped.

4. Amrik Singh informed the police the next day at 9:15 a.m. The police registered an FIR and started their investigation into the matter. Police was working on all possible theories of disappearance of Gurleen. Amrik Singh, Sandeep, Dr. Mukesh and Dr. Swati fully cooperated with the police during investigation. During the course of investigation, a neighbour Mr. Kulkarni deposed before the police that he had seen Dr. Mukesh and Dr. Swati with a minor girl on the night of 15th July, 2012 near Sector 69, Mohali in their car. However, another person named Mr. Keshav Malhotra, coordinator of the conference in Delhi deposed before the police that he had seen the doctor couple on morning of 16th July, 2012 in the conference room. These revelations made Sandeep furious and she alleged that Dr. Mukesh and Dr. Swati had done something wrong with Gurleen. She accused the doctor couple of being involved in the illegal human organ transplant trade.

5. On 20th July, 2012 mutilated body parts of a young minor girl were recovered from the dumping ground of Sector 69, Mohali. This information was given to the police by one garbage picker of the area. From the same place, there was also recovered one coconut, a piece of red cloth and agarbattis. The body was identified as Gurleen's body through the iron bangle and shoes that she was wearing on 15 July 2012, when she left her house in a rage. Further, the medical examination revealed that organs i.e. heart, kidney and liver were missing from the body of Gurleen. On further investigation and after collecting various other evidences, the police filed charge sheet against Dr. Mukesh and Dr. Swati under sections 302 and 364 read with Section 34 of Indian Penal Code and Section 18 of Transplantation of Human Organs Act, 1994 for alleged kidnapping and murder of Gurleen and involvement in illegal human organ transplant.

6. The Trial court acquitted both the accused giving them benefit of doubt on the basis of insufficient evidence. Therefore, Appellant approached to Honble Court.

Charges Framed

Whether the Accused liable under section 364/34 of IPC or Not.

Whether the Accused liable under section 302 of IPC or Not.

Whether the Accused liable under section 18 of transplantation of human organ. act or Not

Summary of Arguments

Whether the accused is liable under section 302 of IPC to be read with Section 34 of IPC or notIt is submitted that in the present matter, the intention as under Section 300(1) of Indian Penal Code is inflicted from the circumstances of the case. The act of the respondent was an intentional act amounting to murder for which the punishment has been given under Section 302 of IPC. In the instant matter there are sufficient circumstantial evidences and the chain of evidences are so complete that it proves the hypothesis of the guilt of the accused beyond reasonable doubt.Whether the accused is liable under section 364 read with section 34 of IPC or notIt is humbly submitted before this Honble High Court that the impugned judgment and order of acquittal of the charge of Kidnapping by the Ld. Trial Court is perverse and erroneous on account subjective appreciation of evidence and therefore, the present appeal is filed before the Honble High Court .The ingredients of the offence of Kidnapping are satisfied in the instant matterWhether the accused is liable under section 18 of Transplantation of Human Organs Act, 1944 or not?That It is submitted that in the present matter, the intention as under Section 300(1) of Indian Penal Code is inflicted from the circumstances of the case. The act of the respondent was an intentional act amounting to murder for which the punishment has been given under Section 302 of IPC. In the instant matter there are sufficient circumstantial evidences and the chain of evidences are so complete that it proves the hypothesis of the guilt of the accused beyond reasonable doubt.RBUSL 1ST NATIONAL MOOT COURT COMPETITION, 2015

Memorial for AppellantPage II

Arguments1. Whether the accused is liable under section 302 of IPC to be read with Section 34 of IPC or not

1.1. That it is submitted that the accused is liable under section 302 of IPC to be read with Section 34 of IPC as the evidence adduced by the prosecution clearly proves the guilt of the accused and that Dr. Mukesh Arora and Dr. Swati Arora should be awarded maximum sentence and no leniency should be adhered in the present matter. according to section 300 (1) of IPC provides that Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death1.2. That when culpable homicide is accompanied by the mens rea detailed in the clause firstly namely the intention to cause death it leads to murder under Section 300 of IPC. Intention to cause death is considered to be a most important element and can be deduced from the circumstantial evidence. Circumstances surrounding will lead to inference of intention.Cutting the skin, muscles, arteries, veins above the thyroid cartilage, pharynx and muscles in front of the vertebral column are the fatal injury sufficient to cause death. The common intention of the respondent is clear from the fact that he assaulted the victim till he was dead.[footnoteRef:1]Court held that prosecution has to prove the common intention of the accused to murder the victim through the facts and circumstances of the case .[footnoteRef:2] [1: B. N. Srikantiah & Others vs The State Of Mysore AIR 1998 SC 67] [2: Laxman V. State of Maharashtra SC 2002]

1.3. That the intention or knowledge or the accused must be such as is necessary constitute' murder. The intention is to be gathered from all circumstances, and not merely from the consequences that ensue. As held in the case of Hari Kishan & Anr vs Sukhbir Singh & Ors Motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration it, determine the intention.[footnoteRef:3] [3: Hari Kishan & Anr vs Sukhbir Singh & Ors 1988 SCR Supl. (2) 571]

1.4. That the term criminal act means that unity of criminal behaviour which results to something for which an individual would be punishable if it were all done by himself alone in a criminal offence. In order to constitute offence under section 34 presence of criminal act is necessary.1.5. That in the present case the behavior of the respondent clearly depicts their common intention to murder the minor child. Being aware of the very fact that the real mother of the child had met with a road accident in which she expired and step mother was ignorant of the child as she had failed to conceive and even the best medical treatment failed in their case , respondents were over affectionate with the child.1.6. That the present matter also provides that as a result of being over affectionate the minor child was more comfortable in the company of the respondent as the child used to visit their residence whenever the child felt lonely and stressed. Even on one or two occasions the child had left the house without informing the parents. After when the child in anger shouting that she will never return the father of minor child inquired from the respondent over phone he misrepresented him and told that both he and her wife were in Delhi for a conference and will return on 16 July 2012.1.7. That the facts of the present case provide that mutilated body parts of the minor girl were recovered from the dumping ground of Sector 69 Mohali on 20th July 2012by a garbage picker , further the medical examination report revealed that organs i.e. heart, kidney and liver were found missing from the body of minor child.That in the light of above facts it is clearly proved that the respondent had a common intention to murder the child.2. Whether the Accused liable under section 302 of IPC or Not.2.1. That SECTION 364 Kidnapping or abducting in order to murder.Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. That In order to establish the offence under this section it is important to prove that the accused had the intention at the time of kidnapping to murder the victim or to dispose of as to put in danger of being murdered.2.2. That Kidnapping has been defined under Section 361 of IPC. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. That SC observed that the word takes or entices not necessarily connotes taking by force. It is not confined to force , actual or constructive .It means cause to go "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I.P.C. are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other.2.3. That in the present matter the minor child had left the house of lawful guardian because the respondent was over affectionate with the child and they provided a comfortable company. Huge differences were present between the child and the step mother. Whenever the child felt lonely and stressed she visited the respondent without informing her parents.2.4. That the Respondent had enticed the child with their over affectionate behaviour. They did not use force to kidnap the child but had enticed the child. The other most important element of kidnapping is taking child out of keeping of lawful guardian without their consent . Further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Anything which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section.[footnoteRef:4] [4: Parkash vs State Of Haryana SC AIR 2003]

2.5. That the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.[footnoteRef:5] Each of the links need not appear on the surface of the evidence, since some of these links may only be inferred from the proven facts.[footnoteRef:6] As observed in Sanatan Naskar v. State of West Bengal, [footnoteRef:7]an accused can be punished if he is found guilty even in cases of circumstantial evidence[footnoteRef:8] as long as the prosecution is able to prove the complete chain of events[footnoteRef:9] beyond reasonable doubt which definitely point towards the involvement or guilt of the suspect or accused. Circumstances and the behavior of the respondent clearly depict that he had an intention to kidnap and murder the child which fulfills the essential elements of Section 364 IPC. [5: Padala Veera Reddy v.State of A.P, A.I.R 1990 S.C. 79.] [6: Pawan Kumar v.State of Haryana, A.I.R 2003 S.C 298.] [7: Sanatan Naskar v. State of West Bengal 2010 (3) RCR (Cri) 629 (S.C.).] [8: Baleshwar Mandal v. State of Bihar, 1997 Cr. L. J 4084 at p. 4085 (S.C.).] [9: Sucha Singh v. State of Punjab, A.I.R. 2003 S.C. 3617.]

2.6. That In Namdeo v. State of Maharashtra, (2007) 14 SCC 150; and Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638) the SC held That it is open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.2.7. That In Paramsivam v State Tr. Insp. of Police 2015 (1) RCR (Criminal) 305 SC, the accused was convicted on the basis of last seen evidence. Evidence of eyewitness that accused persons took away deceased along with them, thereafter dead body of deceased found in mutilated condition.2.8. That In the present case their was no consent of the lawful guardian when the minor child had left the house. Soon thereafter Mr. Kulkarni had seen the respondent with minor child near sector 69 in their car . Well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy.[footnoteRef:10] [10: Alagupandi @ Alagupandian vs State Of Tamil Nadu AIR 2012 SC 726]

2.9. That the respondent in the present case hadeven misrepresented the father of the child when he inquired from respondent over phone. He told him that both he and his wife were in delhi for a conference. SC held in the case of Shankar vs State Of Punjab that it is settled proposition of law that the prosecution is required to establish the complete chain of circumstances which would lead to the inference that the offence has been committed by none else but the accused.[footnoteRef:11] [11: Shankar vs State Of Punjab P&H HC 2011 ]

3. Whether the accused is liable under section 18 of Transplantation of Human Organs Act, 1944 or not?3.1. That Punishment for removal of human organ without authority. Any person who renders his services to or at any hospital and who, for purposes of transplantation, conducts associates with, or helps in any manner in, the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees. 3.2. That in the present case Respondent husband and wife both were employed as senior doctors in Sanjeevni Hospital and in the year 2009 Sanjeevni hospital was in news for running illegal kidney organ trade . Respondent was interrogated by the police but clean chit was given to them on basis of benefit of doubt. Clean chit was given to them on the basis of benefit of doubt as no sufficient evidence was available against them. When the mutilated body parts were recovered from the dumping ground the medical examination revealed that the organs i.e. heart ,kidney and liver were found missing from the body of the minor child. No information or written consent was sought from the complainant or his relatives or family members before removing the left kidney of the complainant, guilt of the accused proved beyond reasonable doubt[footnoteRef:12] [12: Gurdit Singh vs State Of Punjab And Another P&H HC 2009]

3.3. That Section 8 Evidence Act stipulates that any fact is relevant which shows or constitutes motive or preparation for any fact in issue or relevant fact. Thus, previous threats or altercations between parties are admitted to show motive. It is further pertinent to note that if there is motive in doing an act, then the adequacy of that motive is not in all cases necessary. Heinous offences have been committed for very slight motive. 3.4. That It is submitted that in the present matter, the intention as under Section 300(1) of Indian Penal Code is inflicted from the circumstances of the case. The act of the respondent was an intentional act amounting to murder for which the punishment has been given under Section 302 of IPC. In the instant matter there are sufficient circumstantial evidences and the chain of evidences are so complete that it proves the hypothesis of the guilt of the accused beyond reasonable doubt.

Hence it can be abstracted that respondent had murdered the child in order to carry on illegal organ trade.

Prayer

In the light of the issues raised, arguments advanced and authorities cited it is humbly prayed before the Honble Court to adjudge and declare:-

a. That all the said accused are guilty of committing offence of murder punishable u/s 302/34 of the IPC.b. That the said accused be awarded with maximum sentence.c. The orders of the trial court be set aside.

Any other order as it deems fit in the interest of equity, justice and good conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Sd/-(Counsel for the Appellant)

Memorial For AppellantPage 7