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SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015
IN THE
COURT OF SESSIONS
DURG, XANADU, BHARAT
S.C. NO. 111 OF 2015
IN THE MATTER OF
STATE OF XANADU
(PROSECUTION)
V
MANOHAR (D1) & RAHUL (D2)
(DEFENCE)
For the Offences Charged under Sections 302, 120B, 465 r/w 34, 109 of the Bharat Penal Code
and Sections 66 & 66C of the IT Act, 2000
MEMORIAL ON BEHALF OF THE DEFENCE
TEAM CODE: I
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ II ~
MEMORIAL ON BEHALF OF THE DEFENCE
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................... IV
INDEX OF AUTHORITIES .................................................................................................... VII
STATEMENT OF JURISDICTION ....................................................................................... XII
STATEMENT OF FACTS ...................................................................................................... XIII
STATEMENT OF CHARGES ............................................................................................... XIII
SUMMARY OF ARGUMENTS ............................................................................................... XV
ARGUMENTS ADVANCED ....................................................................................................... 1
I. MR. MANOHAR AND MR. RAHUL ARE NOT GUILTY OF MURDERING MR. KARAN ........... 1
A. Mr. Manohar had no motive to nurture the intention of murdering Mr. Karan ........ 1
In Arguendo: Even if Mr. Manohar had a motive to murder Mr. Karan, it would not
be sufficient to convict him. ............................................................................................ 1
B. Mr. Manohar did not have the intention of murdering Mr. Karan. ............................ 2
C. Manohar’s act was not sufficient in the ordinary course of nature or imminently
dangerous within his knowledge to cause Mr. Karan’s death. .................................... 2
D. The circumstantial evidence is not cogent enough to convict Mr. Manohar. ............. 3
E. Mr. Manohar’s act is excusable under Sec. 80 of the B.P.C. ...................................... 4
F. The possibility of accidental death casts doubt on prosecution story. ......................... 4
G. Mr. Rahul is not guilty of murdering Mr. Karan. ........................................................ 5
II. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE FOR THE OFFENCE OF
FORGERY. ................................................................................................................................... 5
A. Mr. Manohar is not liable for the offence of Forgery. ................................................. 6
i. Mr. Manohar did not forge Dr. Choudhary’s medical prescription. .......................... 6
In Arguendo: Mr. Manohar did not have fraudulent or dishonest intention. ............... 7
ii Mr. Manohar did not forge Mr. Karan’s Bank A/c password. ................................... 7
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ III ~
MEMORIAL ON BEHALF OF THE DEFENCE
a. Mr. Manohar did not forge Karan’s password. .......................................................... 7
b. Mr. Manohar did not have fraudulent intention. ........................................................ 8
B. Mr. Rahul is not liable for the offence of Forgery. ...................................................... 8
III. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE U/SEC 66 & 66C OF THE I.T.
ACT, 2000. .................................................................................................................................. 9
A. Mr. Manohar and Mr. Rahul are not liable for the offences u/sec 66 r/w sec 43. .... 10
i. Mr. Manohar is not liable. ........................................................................................ 10
ii Mr. Rahul is not liable. ............................................................................................. 10
iii.There was no fraudulent or dishonest intention on their part. ................................ 10
B. Mr. Manohar and Mr. Rahul are not liable for the offence u/sec 66C. .................... 11
C. There is not enough evidence to prove the committal of offences. ............................ 11
i. Mr. Manohar had rightful access to Mr. Karan’s desktop. ..................................... 11
ii. The Key log files were not found in the Laptops. ..................................................... 12
IV. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE FOR THE OFFENCE OF
CRIMINAL CONSPIRACY U/SEC 120B R/W SEC. 34 OF B.P.C. 1860. ........................................ 12
A. The accused are not liable for criminal conspiracy to commit murder. .................... 13
B. The accused are not liable for the offence of Hacking and Identity Theft. ............... 13
i. The essentials of Criminal Conspiracy are not satisfied.......................................... 13
ii There was no common intention between the parties. ............................................. 14
iii.There is no reliable circumstantial evidence. .......................................................... 14
PRAYER ................................................................................................................................. XVII
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ IV ~
MEMORIAL ON BEHALF OF THE DEFENCE
LIST OF ABBREVIATIONS
Abbreviation Full form
& And
¶ Paragraph
A.P. Andhra Pradhesh
AD Apex Decision
AIR All India Reporter
All Allahabad High Court
Anr. Another
b/w Between
Bom Bombay
Bom L.R. Bombay Law Reporter
Cal. Calcutta
Co. Company
Cri. Criminal
CrlJ Criminal Law Journal
CrLR Criminal Law Reporter
DB Division Bench
Del. Delhi
Ed. Edition
Gau Guwahati
Guj Gujarat
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ V ~
MEMORIAL ON BEHALF OF THE DEFENCE
Hon’ble Honourable
HP Himachal Pradesh
i.e. i.e. (That is)
IEA Indian Evidence Act
IPC Indian Penal Code
IPLR Intellectual Property Law Review
J&K Jammu and Kashmir
JT Judgment Today
Ker Kerala
LR Law Reporter
Mad Madras
MP Madhya Pradesh
NOC Notes of Cases
Ori Orissa
Ors Others
P&H Punjab & Haryana
p. Page
Para Paragraph
PLJ Punjab Law Journal
Punj. Punjab
RCR Recent Criminal Reports
S. Section
SC Supreme Court
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ VI ~
MEMORIAL ON BEHALF OF THE DEFENCE
SCC Supreme Court Cases
Supp. Supplement
U.P. Uttar Pradesh
u/s Under section
UoI Union of India
v./vs Versus
Vol. Volume
W.B. West Bengal
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ VII ~
MEMORIAL ON BEHALF OF THE DEFENCE
INDEX OF AUTHORITIES
STATUTES:
1. BHARAT EVIDENCE ACT, 1872.
2. BHARAT PENAL CODE, 1860.
3. CODE OF CIVIL PROCEDURE, 1973.
4. THE INFORMATION TECHNOLOGY ACT, 2000.
LIST OF CASES
SUPREME COURT:
1. Bhagat Ram v. State of Rajasthan, AIR 1972 SC 1502. ..................................................... 14
2. Dr. Suresh Gupta v. Govt, NCT Delhi AIR 2004 SC 409..................................................... 4
3. Girija Shankar v. State of U.P., AIR 2004 SC 1808. .......................................................... 14
4. Hardeep Singh v. State of Haryana, (2008) 12 SCC 39. ..................................................... 13
5. Hussain Umar v. Dilip Sinhji, AIR 1970 SC 45.................................................................. 12
6. Jacob Mathew v. State AIR 2005 SC 3180. .......................................................................... 4
7. Jamuna Singh v. State of Bihar, AIR 1967 SC 553............................................................... 6
8. K.M. Nanavati v. State of Maharshtra AIR 1962 SC 605 ..................................................... 5
9. Katcheria Venkata Sunil v. Dr. Venguri Sheshumanba , 2008 CrLJ 853 (AP). .................. 4
10. Kehar Singh v. Delhi Administration, AIR 1988 SC 1883 ........................................... 13, 14
11. Mohan Lal v. State of Uttar Pradesh, AIR 1974 SC 1144. .................................................. 15
12. Mohd Zahid v. State of Tamil Nadu, 1999 Cr LJ 3699 (SC). ............................................. 12
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ VIII ~
MEMORIAL ON BEHALF OF THE DEFENCE
13. Param Hans Yadav v. State of Bihar, AIR 1987 SC 1224. ................................................. 15
14. Parichhat v. State of M.P., AIR 1972 SC 535 ..................................................................... 13
15. Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar AIR 1962 SC 876. .................................... 5
16. R. Dineshkumar v. State and Ors., AIR 2015 SC 1816 ............................................. 12,13,15
17. Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200 ................................................. 12
18. Saju v. State of Kerala, AIR 2001 SC 175. ....................................................................... 5, 9
19. Shivaji Sahabrao Bobade v. State of Maharashtra , SCC para 19, p. 807, 1047 ................... 3
20. State of A.P. v. R. Punnayya, AIR 1977 SC 45. ................................................................... 3
21. State of HP v. Krishan lal, AIR 1987 SC 773. .................................................................... 12
22. State of U.P. v. Phera Singh, AIR 1989 SC 1205 ......................................................... 13, 15
23. Swinder Singh v. State of Punjab , AIR 1992 SC 209. ......................................................... 4
HIGH COURTS:
1. Adikanta Swami v. Emperor, AIR 1947 Pat 251 .................................................................. 8
2. Central Bureau of Investigation v. Pankaj Sharma and Another, MANU/UP/0600/2014 .... 8
3. Council, ICAI v. P.C. Parekh, ref 1/1991 GUJHC (MANU/GJ/0161/2003). ....................... 7
4. Daljeet Singh & Anr. v. Income Tax Officer & Anr. [1984] 148 ITR 510 (MP). ................ 6
5. Daniel Hailey v. State of Madras A’ 1968 Mad 649 ............................................................. 6
6. Dr. Lalit K. Bhanot v. C.B.I, 2011(3) JCC 1866 ................................................................... 6
7. Dr. R.K. Sharma and Anr. v. State of U.P. and Anr., 2005 (1) ACR 665. ............................ 7
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ IX ~
MEMORIAL ON BEHALF OF THE DEFENCE
8. ICICI Bank v. Ashish Agrawal, App. No. 435/2009, SCDRF, Raipur; .............................. 11
9. In re, Ram Japu Rai, 1999 CrLJ 4164 (Pat). ....................................................................... 13
10. In re, Sivnanda Mudaliar, AIR 1926 Mad 1072 .................................................................... 6
11. Jai Singh v. Smt. Sukhjit Kaur, (2007) 4 PLR 706 ............................................................... 6
12. K Thyagarajan v. ICICI Bank, CC no. 2969/2009, SCDRF, Bangalore. ............................ 11
13. Karali Bauri v. Subhas Das 1983 CrLJ 1474 (Cal). .............................................................. 4
14. Krishnarao Raojirao v. State of MP, 1953 Cr LJ 979 ........................................................... 6
15. M/s Pachisia Plastics v. ICICI Bank Ltd., CC no. 1059/2008,SCDRF Bangalore ............. 11
16. Malan v. State of Mahrashtra, AIR 1960 Bom 393 ............................................................... 9
17. Manmohan Singh v. State of Punjab, AIR 1969 Punj 225. ................................................. 12
18. Nandram v. State of WB, AIR 1957 Cr LJ 442 ..................................................................... 6
19. Narayana v. State , 1999 CrLJ 4994 (4999). ......................................................................... 1
20. Palani Goundan, In re, (1919) 42 Mad 224. .......................................................................... 2
21. Pramatha Nath v. The State, AIR 1951 Cal 581............................................................... 7,10
22. Ramesh Baburao Devaskar v. State of Maharashtra 2008 CrLJ 372 (377). .......................... 2
23. Rishi Gupta v. ICICI Bank Ltd., CC No. 514/2010, SCDRF, Bangalore ........................... 11
24. Sharad Birdhichand Sarda v. State of Maharashtra 1984 CriLJ 1738 ................................... 3
25. Soundara Pandian v. Vishwanathan, 1986 CrLJ 1181 (Mad). .............................................. 8
26. State of Orissa v. Sahadeb Pujhari (1992) 1 Crimes 365 (367) (Ori). ................................... 5
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ X ~
MEMORIAL ON BEHALF OF THE DEFENCE
27. Sukanti Choudhury v. State of Orissa, 2013 (1) OLR 742. ................................................... 7
OTHERS:
1. Ferguson v. Weaving, (1951) 1 KB 814................................................................................ 9
2. Gangaram v. Emp.,22 Cr LJ 529. .......................................................................................... 1
3. R v. Lamb, (1967) 2 All ER 1282 CA ................................................................................... 2
BOOKS:
1. DR. GUPTA AND AGARWAL, INFORMATION TECHNOLOGY LAW AND PRACTICE, (2ND ed.,
2012).
2. KARNIKA SETH, COMPUTERS INTERNET & NEW TECHNOLOGY LAWS, (1ST ed., 2013).
3. PROF. R.K. CHAUBEY, AN INTRODUCTION TO CYBER CRIME & CYBER LAW, (1ST ed., 2012)
4. RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE, (19TH ed., 2014).
5. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, (33RD ed., 2012).
6. Y.R. RAO, EXPERT EVIDENCE (MEDICAL & NON-MEDICAL), (4th Ed., 2010).
7. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, (32nd Ed., 2013).
8. SUDIPTO SARKAR, V.R. MANOHAR, LAW OF EVIDENCE, (17th Ed., 2011).
9. CJ. M. MONIR, LAW OF EVIDENCE, (16th Ed., 2013).
10. BERNARD KNIGHT, LAWYER’S GUIDE TO FORENSIC MEDICINE, (2nd Ed., 1998).
11. MODI, A TEXTBOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY, (24th Ed., 2012).
12. PAREKH & SINGH, LAW RELATING TO CRIME INVESTIGATION AND MEDICAL SCIENCE, (2nd
Ed., 2010).
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ XI ~
MEMORIAL ON BEHALF OF THE DEFENCE
13. K. KANNAN, MEDICINE AND LAW, (1st Ed., 2014).
WEBSITES:
1. www.manupatra.com
2. www.westlaw.com
3. www.scconline.com
4. www.hienonline.com
5. www.cybercases.blogspot.com
6. www.itact.gov.in
7. www.vakilno.1.com
8. www.vakilsearch.com.
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ XII ~
MEMORIAL ON BEHALF OF THE DEFENCE
STATEMENT OF JURISDICTION
The Defence, most humbly and respectfully, submits that this Hon’ble Court has the requisite
territorial and subject matter jurisdiction to entertain and adjudicate this matter under sections
1771, 2092, 184(b)3 and 2234 of The Code of Criminal Procedure, 1973. It is further submitted
that all procedural requirements have been adhered to in the prescribed manner. The present
memorandum sets forth the facts, contentions and arguments in the present case.
§ 209. Commitment of case to Court of Session when offence is triable exclusively by it.
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall-
a) Commit, after Complying with the provisions of § 207 or § 208, as the case may be,
the case to the Court of Session, and subject to the provisions of this code relating to bail,
remand the accused the custody until Such commitment has been made;
b) Subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
c) Send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.
1 Ordinary Place of Inquiry and Trial, Sec. 177, Cr.P.C, 1973.
2 Commitment of case to Court of Session when offence is triable exclusively by it, Sec. 209, Cr.P.C, 1973.
3 Place of Trial for offences triable together, Sec. 184, Cr.P.C, 1973.
4 What person may be charged jointly, Sec. 223, Cr.P.C, 1973.
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ XIII ~
MEMORIAL ON BEHALF OF THE DEFENCE
STATEMENT OF FACTS
-BACKGROUND-
Karan, Manohar’s father’s brother, took him under his wings after the death of latter’s father
some years ago. Karan, who was an ardent alcoholic, despite knowing that he was suffering from
multiple life threatening ailments, suddenly complained of chest pain. Manohar, in the best of his
knowledge, administered ‘Angispan’ and took him to the hospital for CPR, but it was too late
and Karan passed away.
-CIRCUMSTANCES LEADING UPTO THE DEATH OF THE DECEASED-
Karan’s health was in a deteriorating condition from the last few years. This was primarily
because of stress at workplace, insecurity regarding Manohar’s look-after after his death,
quarrels with wife Devika and son Raghav etc. Dr. Chaudhary changed his medication and
strictly advised him not to consume alcohol, but only in vain.
Manohar had a friend Rahul who visited him during the examination.
On the day of the incident, Karan suddenly complained of chest pain. Manohar searched for pain
killers but could not find them. He tried to call Dr. Chaudhary also but was unable to contact
him. Therefore, he told Raghav to get ‘Angispan’ (which is a commonly used drug) from the
nearest medical store. He administered it via intravenous, since Karan was not in a position to
take it orally. His treatment worked and Karan revived. But, only after thirty minutes, he
collapsed again. Manohar took him to hospital and to get CPR done, but it was too late and fate
prevailed over efforts.
In the instant case, Manohar and Rahul have been accused of Murder (Sec.302), Forgery (Sec.
465), Identity theft and Password Hacking (Sec. 66 & 66C of I.T. Act, 2005), Common Intention
(Sec.34) and Criminal Conspiracy( Sec.120B).
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ XIV ~
MEMORIAL ON BEHALF OF THE DEFENCE
STATEMENT OF CHARGES
The issues presented for adjudication before the Honourable Court are as follows:
A. The Accused, Mr. Monohar Lal s/o Mr. Jiwan Lal, has been charged with offence u/s 302,
465 r/w 34, 120B of the Bharat Penal Code and 66 & 66C of the Information Technology
Act, 2000.
B. The Accused, Mr. Rahul Gulati s/o Mr. Jitender Gulati, has been charged with offence u/s
302, 465 r/w 34, 120B and 109 of the Bharat Penal Code and 66 & 66C of the Information
Technology Act, 2000.
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ XV ~
MEMORIAL ON BEHALF OF THE DEFENCE
SUMMARY OF ARGUMENTS
I. THAT MR. MANOHAR AND MR. RAHUL ARE NOT GUILTY FOR THE OFFENCE OF MURDER.
It is humbly submitted that in the instant case, Mr. Manohar and Mr. Rahul are not guilty of
murdering Mr. Karan, as the essential conditions of murder specified under Sec. 300 are not
satisfied. Firstly, Manohar did not have the intention to cause Karan’s death or any bodily injury
which he knew to be likely to cause his death. Secondly, his act was not sufficient in the ordinary
course of nature to cause Karan’s death and was not imminently dangerous within his knowledge
to cause his death. Thirdly, the circumstantial evidence is not cogent enough to convict Mr.
Manohar. Fourthly, the act was accidentally committed and is therefore, excusable under S.80 of
B.P.C. Also, the possibility of accidental death casts doubt on the prosecution story. Lastly, Mr.
Rahul is not liable for the murder of Mr. Karan, either directly or through abetment.
II. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE FOR THE OFFENCE OF FORGERY.
The accused are not liable for the offence of forgery as alleged by the prosecution. Firstly, Mr.
Manohar made wrote the name of the medicine on a piece of paper without the knowledge that
the paper was Dr. Choudhary’s prescription and he should not be made liable for forgery of
prescription; secondly, Mr. Manohar was authorised to access Mr. Karan’s bank a/c and he,
along with Mr. Rahul, transferred the small amounts of money to his a/c to set off the debt taken
by him from Rahul and for the payment of college fees.
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ XVI ~
MEMORIAL ON BEHALF OF THE DEFENCE
III. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE U/SEC 66 & 66C OF THE I.T. ACT,
2000.
The accused should not be made liable for the offence of hacking and identity theft as, firstly,
Manohar already had authorised possession of Mr. Karan’s desktop and does not fulfil any
essential condition u/sec 43 of I.T. Act, 2000 to be made liable u/sec 66 and Rahul, accessed the
desktop only with permission of Mr. Manohar; secondly, the accused did not make fraudulent
use of Mr. Karan’s bank a/c password as they transferred the requisite amount needed to pay off
the debt owed to Rahul and college fees, along with fine for late submission.
IV. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE FOR THE OFFENCE OF CRIMINAL
CONSPIRACY U/SEC 120B R/W SEC. 34 OF B.P.C. 1860.
Firstly, the accused did not enter into any agreement to conspire for committing the offence of
murder as there is no cogent evidence pointing towards it. Secondly, they also did not plan to
hack into Karan’s desktop and decrypt his password as Manohar already had authorised access of
Karan’s desktop and was in permitted possession of Karan’s bank a/c details. Therefore, the
allegation of criminal conspiracy only on the basis mere suspicion is not justified.
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ 1 ~
MEMORIAL ON BEHALF OF THE DEFENCE
ARGUMENTS ADVANCED
I. MR. MANOHAR AND MR. RAHUL ARE NOT GUILTY OF MURDERING MR. KARAN
1. It is humbly submitted that in the instant case, Mr. Manohar is not guilty of murdering Mr.
Karan, as the essential conditions of murder specified under Sec. 300 are not satisfied. Firstly,
Manohar did not have the intention to cause Karan’s death or any bodily injury which he knew to
be likely to cause his death. Secondly, his act was not sufficient in the ordinary course of nature
to cause Karan’s death and was not imminently dangerous within his knowledge to cause his
death. Thirdly, the circumstantial evidence is not cogent enough to convict Mr. Manohar.
Fourthly, the act was accidentally committed and is therefore, excusable under S.80 of B.P.C.
A. Mr. Manohar had no motive to nurture the intention of murdering Mr. Karan
2. In the instant case, the accused was not under any motive5 to cause the deceased’s death. The
relations of the accused and the deceased were cordial and the accused time and again showed
concern for the health of deceased. Even on the day of the incident, the accused had suggested
the deceased to stay at home and take rest. Also, the accused did not face any substantial
financial problems. Therefore, there is no strong fact(s) to lead to the conclusion that there
existed a motive for the accused to murder the deceased.
In Arguendo: Even if Mr. Manohar had a motive to murder Mr. Karan, it would not be
sufficient to convict him.
3. In the cases of Narayana v. State6 and Surender Kumar v. State of Punjab7, even though the
prosecution had established the case with reference to the motive, the courts were of the view
5 According to Sec. 8 of the Evidence Act, 1872 any fact is relevant which shows or constitutes motive or
preparation for any fact in issue or relevant fact. Motive is that factor which moves or induces a person to act in a
certain manner, Gangaram v. Emp.,22 Cr LJ 529.
6 Narayana v. State , 1999 CrLJ 4994 (4999).
7 Surender Kumar v. State of Punjab, 1999 CrLJ 267 (SC) .
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ 2 ~
MEMORIAL ON BEHALF OF THE DEFENCE
that motive alone would not be sufficient to hold that the accused committed the murder of the
deceased on the day of occurrence. A finding of motive, in some cases, may also lead to a false
implication. Suspicion against the accused on the basis of their motive to commit a crime cannot
by itself lead to a judgement of conviction.8
B. Mr. Manohar did not have the intention of murdering Mr. Karan.
4. On the day when the incident took place, Mr. Karan suddenly complained of chest pain and
stomach pain. Manohar tried his best to find medicines of chest pain, but could not find them
anywhere. So, he wrote the name of a popular and commonly used medicine ‘Angispan’ and told
Raghav to get it from the nearest pharmacy.
5. Afterwards, he administered the medicine via intravenous because Mr. Karan was not in a
position to take it orally. Manohar also tried to contact Dr. Chaudhary, but was unable to do so.
He also drove him to the hospital and got the CPR done.
6. In the case of R. v. Lamb9, the appellant, merely pointed a revolver at a friend but because of the
action of the cylinder which rotated before firing, a bullet was fired and the friend got killed. On
appeal, his conviction for manslaughter was quashed. In another case, the accused struck a blow
on the head of his wife which rendered her unconscious. Believing her to be dead and to lay a
foundation of false Defence of suicide by hanging, he hanged her on a beam by a rope and
thereby caused her death by strangulation, the accused was held not guilty either of culpable
homicide or of murder.10
C. Manohar’s act was not sufficient in the ordinary course of nature or imminently
dangerous within his knowledge to cause Mr. Karan’s death.
8 Ramesh Baburao Devaskar v. State of Maharashtra 2008 CrLJ 372 (377).
9 R v. Lamb, (1967) 2 All ER 1282 CA.
10 Palani Goundan, In re, (1919) 42 Mad 224.
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ 3 ~
MEMORIAL ON BEHALF OF THE DEFENCE
7. The phrase sufficient in the ordinary course of nature implies that death would be the most
probable result of the act.11 It is only in cases where the probability of death is extremely high
that this clause is evoked.12 The act of administering Angispan via intravenous is not so
imminently dangerous that Manohar can be supposed to know that it may cause death. He
executed a procedure which he had seen in his college to save Karan’s life.
D. The circumstantial evidence is not cogent enough to convict Mr. Manohar.
8. In the case of Sharad Birdhichand Sarda v. State of Maharashtra13, it was held that only upon the
successful fulfilment of the following conditions, the case against the accused can be said to be
fully established; Firstly, the circumstances from which the conclusion of guilt is to be drawn
should be fully established. Secondly, the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Thirdly, the circumstances should be of a conclusive
nature and tendency. Fourthly, there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the accused.
9. In the instant case, it is not possible to draw an irresistible inference that it was only Manohar’s
acts which led to Mr. Karan’s death. Many other factors, such as, his poor health, multiple
ailments, drinking habits, irregular food habits, stress, work pressure led to his vulnerability.
Moreover, he never discussed his medication and health with anybody. Therefore, Mr. Manohar,
or anybody else apart from Dr. Chaudhary, cannot be supposed to foresee that even general pain
killers like Angispan, which are available without prescription also, would not suit Mr. Karan.
11 State of A.P. v. R. Punnayya, AIR 1977 SC 45.
12 Ratanlal & Dhirajlal, The Bharat Penal Code, 32nd Enlarged Ed., LexisNexis.
13 Sharad Birdhichand Sarda v. State of Maharashtra 1984 CriLJ 1738. Also, Shivaji Sahabrao Bobade v. State of
Maharashtra , SCC para 19, p. 807: SCC (Cri)p. 1047.
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION ~ 4 ~
MEMORIAL ON BEHALF OF THE DEFENCE
10. In Swinder Singh v. State of Punjab14, the case of prosecution was based on circumstantial
evidence only. But, it was held that the circumstantial evidence was not cogent enough to hold
the accused guilty.
E. Mr. Manohar’s act is excusable under Sec. 80 of the B.P.C.
11. Sec. 80 of the B.P.C. postulates that if an act is done accidentally or by misfortune without any
criminal intention or knowledge and the said accident occurs while doing a lawful act in a lawful
manner by lawful means by exercising due care and caution, it will not amount to any offence.15
It has been held by HALSBURY16, that where Actus Reus is death of the victim, accident is a valid
defence. Here, the causing of death due to cross-reaction of incompatible drugs and air embolism
in the syringe leading to cardiac arrest, is an act committed accidentally and not intentionally.
12. This defence has been used in several cases involving treatment of patients. In the case of
Katcheria Venkata Sunil v. Dr. Venguri Sheshumanba17, a doctor administered necessary
medication, but the patient could not be saved due to her own delay of the treatment. In a catena
of cases involving criminal charges on doctors18, it has been held that mere lack of proper care,
precaution and attention does not give rise to criminal liability.
F. The possibility of accidental death casts doubt on prosecution story.
13. It has been held by the Calcutta High Court19 that the burden to prove any exception to criminal
liability lies on the accused taking the plea, but the burden may be discharged by preponderance
of probability. Also, the initial burden20 to prove the accident is on the accused but even if the
14 Swinder Singh v. State of Punjab , AIR 1992 SC 209.
15 Stephen’s Digest of Criminal Law, 9th Edn., Art 316.
16 HALSBURY’s Laws of England, 4th Ed., Vol.11, para 377, p.209.
17 Katcheria Venkata Sunil v. Dr. Venguri Sheshumanba , 2008 CrLJ 853 (AP).
18 Dr. Suresh Gupta v. Govt, NCT Delhi AIR 2004 SC 409, Jacob Mathew v. State AIR 2005 SC 3180.
19 Karali Bauri v. Subhas Das 1983 CrLJ 1474 (Cal).
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accused fails to establish all the circumstances to bring his case within the exception, may be
sufficient to negative one or more ingredients of the offence.21
G. Mr. Rahul is not guilty of murdering Mr. Karan.
14. Mr. Rahul is not involved in the murder of Karan, whether directly or through abetment u /sec.
109 of B.P.C., 1860. Abetment involves active complicity on the part of the abettor at a point of
time prior to the actual commission of the offence. It is the essence of the crime of abetment that
the abettor should substantially assist towards the commission of the offence and it is necessary
to connect him with those steps in the transaction, which are criminal.22
15. In the instant case, Mr. Rahul has is not connected to the death of Mr. Karan in any manner.
There is no reasonable nexus between the death of Mr. Karan and the actions of Rahul.
To prove the charge of abetment, the prosecution is required to prove that the accused had
instigated for the doing of a particular thing or engaged with one or more other persons, if there
is conspiracy or intentionally aided the doing of that thing. 23 Abetment is not a matter of mere
suspicion or surmise. A mere allegation that the other co-accused acted in the way they did with
the connivance of the petitioner is not enough. The complainant is ought to show what actual
words were used by the petitioner by way of instigation.
II. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE FOR THE OFFENCE OF
FORGERY.
20 Sec. 105 of the Evidence Act, 1872.
21 K.M. Nanavati v. State of Maharshtra AIR 1962 SC 605, State of Orissa v. Sahadeb Pujhari (1992) 1 Crimes 365
(367) (Ori).
22 Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar AIR 1962 SC 876.
23 Saju v. State of Kerala, AIR 2001 SC 175.
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16. It is humbly submitted that Mr. Manohar is not liable for committing the offence of forgery u/sec
46324 r/w sec. 46425 which is punishable u/sec. 46526 of B.P.C, 1860.27
17. For proving the offence of forgery, the following essentials have to be satisfied28:
i. Making of false document or electronic record (Actus Reus) which includes which includes (a)
Making, signing, sealing or executing a document or part of a document, or (b) affixing any
electronic signature on any electronic record.29 AND ii. Such making should be with a fraudulent
or dishonest intention30 (Mens rea), (a) to support any claim or title, or (b) to cause any person to
part with property, or (c) to cause deception or commit fraud.
A. Mr. Manohar is not liable for the offence of Forgery.
18. Allegations of forgery against Mr. Manohar on account of forging the prescription of Dr.
Choudhary and the password of Mr. Karan’s bank a/c are baseless.
i. Mr. Manohar did not forge Dr. Choudhary’s medical prescription.
19. Mr. Manohar wrote the name of medicine to be administered to Mr. Karan on a blank piece of
paper31, which he later on realised was Dr. Choudhary’s medical prescription.32 Mr. Manohar, in
all probability, would have written the same at the back of the prescription. The circumstances at
the time of this event were sudden and the effort was desperate.33 The writing of medicine on a
24 Forgery, Sec. 463, B.P.C, 1860.
25 Making a False Document, Sec. 464, B.P.C. 1860.
26 Punishment for forgery, Sec. 465, B.P.C, 1860.
27 Jamuna Singh v. State of Bihar, AIR 1967 SC 553.
28 Nandram v. State of WB, AIR 1957 Cr LJ 442, Jai Singh v. Smt. Sukhjit Kaur, (2007) 4 PLR 706.
29 Dr. Lalit K. Bhanot v. C.B.I, 2011(3) JCC 1866; Daniel Hailey v. State of Madras A’ 1968 Mad 649.
30 Krishnarao Raojirao v. State of MP, 1953 Cr LJ 979; In re, Sivnanda Mudaliar, AIR 1926 Mad 1072; Daljeet
Singh & Anr. v. Income Tax Officer & Anr. [1984] 148 ITR 510 (MP).
31 Mano’s Statement, Annexure 5, pg. 13, Moot Proposition.
32 Para 25, pg. 5, Moot Proposition.
33 Para 21, pg. 4, Moot Proposition.
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blank piece of paper disregarding the fact that whether that that paper was prescription or bill
was in natural course which any other prudent person would have resorted to.
20. If making of a document by a person is in the exercise of natural conduct, forgery cannot be
traced out.34 Moreover, a piece of blank paper is not a document.35 Therefore, Mr. Manohar did
not make any false document and therefore, the charge of forgery against Manohar must fail.
In Arguendo: Mr. Manohar did not have fraudulent or dishonest intention.
21. Mr. Manohar wrote the medicine in his last attempts to save the life of Mr. Karan.
22. Neither his intention was fraudulent nor did it cause any deception, as no prescription was
required to procure ‘Angispan’. Mr. Manohar being a medical student36 could very well be
presumed to know the same and his act was merely directory so that Raghav could procure the
right medicine in right form37. Also, Mr. Manohar no where intended to cause harm either to Dr.
Choudhary or to Mr. Karan, who would have become direct victims if such deception was
practiced. It is an essential ingredient of the offence of forgery that there must be the fraudulent
or dishonest intention in absence of which, criminal proceeding against the petitioner will
amount to an abuse of process of court.38
ii. Mr. Manohar did not forge Mr. Karan’s bank a/c password.
23. The essentials of forgery are not satisfied as Mr. Manohar’s act of transfer of money from
Karan’s bank a/c was duly authorised & without any fraudulent or dishonest intention.
a. Mr. Manohar did not forge Karan’s password.
34 Dr. R.K. Sharma and Anr. v. State of U.P. and Anr., 2005 (1) ACR 665.
35 Pramatha Nath v. The State, AIR 1951 Cal 581; Council, ICAI v. P.C. Parekh, ref 1/1991 GUJHC
(MANU/GJ/0161/2003).
36 DW5, Annexure 5, pg. 15, Moot Proposition.
37 Para 21, pg. 4, Moot Proposition.
38 Sukanti Choudhury v. State of Orissa, 2013 (1) OLR 742.
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24. Mr. Manohar was duly authorised by Mr. Karan to transfer small amounts to his a/c.39 Also, he
was authorised to transfer alleged amount towards making the payment of college fees.40
Therefore, he was authorised to access Mr. Karan’s bank a/c. It is not forgery where the act is
done under the honest belief that the party doing it had a right to do it.41 Hence, the essentials for
making false electronic record u/sec 464 are not satisfied.
b. Mr. Manohar did not have fraudulent intention.
25. The alleged allegation of forgery is bolstered by prosecution by stating the fact that Mr. Manohar
instead of transferring ₹ 2, 25, 000/- as in the normal course, instead transferred ₹ 2, 50, 000 into
his a/c.42 This transaction can be explained on two accounts. Firstly, the additional amount was
transferred as against the claim of pocket expenses as authorized by Mr. Karan. Secondly,
Manohar’s had defaulted in his fee payment due non-payment of fees by Mrs. Devika, due to
which a certain fine was imposed on him. If sufficient explanation is given for the transactions
undertaken and the amounts were transferred to the normal account with no intention to incur
wrongful gain, the offence of forgery cannot be made out.43
B. Mr. Rahul is not liable for the offence of Forgery.
26. It is humbly submitted that Mr. Rahul should not be made liable for the offence of forgery as the
allegations against Mr. Rahul is that he abetted44 the offence committed by Mr. Manohar of
forging Mr. Karan’s bank a/c password. There are two essential elements to arraign a person
39 Para 15, pg. 3, Moot Proposition.
40 Para 19, pg. 3, Moot Proposition.
41 Supra Note 11 (RK sharma case).
42 Para 20, pg. 4, Moot Proposition.
43 Central Bureau of Investigation v. Pankaj Sharma and Another, MANU/UP/0600/2014, Adikanta Swami v.
Emperor, AIR 1947 Pat 251; Soundara Pandian v. Vishwanathan, 1986 CrLJ 1181 (Mad).
44 Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made
for its punishment, Sec. 109, B.P.C., 1860.
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u/sec. 109 for the offence of abetment i.e., (a) Intentional instigation, aiding or engaging in a
conspiracy to commit principle offence & (b) the principle offence was infact committed.45
27. In the present case, Mr. Manohar independently took up the transaction of payment of his college
fees.46 Also, Mr. Rahul did not aid or instigate Mr. Manohar. Furthermore, the allegation of
forgery against Mr. Manohar is not proved beyond reasonable doubt and hence, Mr. Rahul
cannot be made liable.
III. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE U/SEC 66 & 66C OF THE I.T.
ACT, 2000.
28. It is humbly submitted before the Hon’ble Court of Sessions, that Mr. Manohar and Mr. Rahul
are not liable for the offences u/sec. 6647 and 66C48 of the I.T. Act, 2000 respectively.
Sec. 66 of the I.T. Act makes the offender criminally liable if the offences (Actus Reus49)
committed u/sec 4350 of the same Act are committed with dishonest51 & fraudulent52
intention (Mens Rea53).
Sec. 66C makes fraudulent or dishonest (Mens Rea) use of password54 (Actus Reus) of any
other person punishable as the offence of identity theft.
45 Ferguson v. Weaving, (1951) 1 KB 814; Malan v. State of Mahrashtra, AIR 1960 Bom 393; Saju v. State of
Kerala, AIR 2001 SC 175.
46 Para 20, pg. 4, Moot Proposition.
47 Computer related offences, Sec. 66, I.T. Act, 2000.
48 Punishment for identity theft, Sec. 66C, I.T. Act, 2000.
49 Elements of Actus Reus, [Dr. Gupta & Agarwal, Information Technology – Law and Practice, Premier Publishing
Co. (Ed. 2012)].
50 If any person without permission of the owner or any other person who is incharge of a computer, computer
system or computer network…, Sec. 43, I.T. Act, 2000.
51 Dishonestly, Sec. 24, B.P.C., 1860.
52 Fraudulently, Sec. 25, B.P.C., 1860.
53 Mens Rea in cyber-crimes, [Supra Note. 50].
54 Rule 19(2) Sch. 2. Information Technology (IT) Security Guidelines, Confidentiality of Subscriber’s Information,
Information Technology (Certifying Authorities) Rules, 2000.
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A. Mr. Manohar and Mr. Rahul are not liable for the offences u/sec 66 r/w sec 43.
29. It is pleaded that Mr. Manohar and Mr. Rahul are not guilty of any offence u/sec 66 r/w sec. 43
of the I.T. Act, 2000 as the essentials for offence under said sections are not fulfilled.
i. Mr. Manohar is not liable.
30. Mr. Manohar had authorised access to the desktop of Mr. Karan.55 Furthermore, he was
permitted to access Mr. Karan’s bank a/c by Mr. Karan himself.56 The beginning phrase of Sec.
43 of I.T. Act, 2000 says “If any person without permission”. Therefore, in order to constitute an
offence under this section, the person committing the offence should perform the act without the
permission of the owner. In the instant case, the very condition which needs to be satisfied to
make someone guilty of the offence is not fulfilled.
ii. Mr. Rahul is not liable.
31. It is pointed out that Mr. Rahul had rightful claim of more than ₹ 1 Lakh against Mr. Manohar
which he borrowed from Mr. Rahul over a period of time.57 In order to repay the same, Mr.
Rahul was authorised by Mr. Manohar to transfer small amounts from Mr. Karan’s bank a/c. It is
no offence where the act is done under the honest belief that the party doing it had a right to do it
although in point of fact he had really no such authority.58Therefore, Mr. Rahul cannot said to be
wrongfully accessing the desktop of Mr. Karan.
iii. There was no fraudulent or dishonest intention on their part.
32. Both the accused performed the transactions in order to satisfy their rightful claim, i.e., Mr.
Manohar for payment of his college fee & pocket expenses AND Mr. Rahul for recovery of his
55 Para 15, pg. 3, Moot Proposition.
56 Para 19, pg. 3, Moot Proposition.
57 Para 5, pg. 1, Moot Proposition.
58 Pramatha Nath v. The State, AIR 1951 Cal 581.
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money owed to him by Mr. Manohar. Therefore, the dishonest or fraudulent intention cannot be
inferred from the above circumstances.
B. Mr. Manohar and Mr. Rahul are not liable for the offence u/sec 66C.
33. It is stated, that Mr. Manohar and Mr. Rahul used the password of Mr. Karan’s bank a/c in order
to make payment of his college fees and recovery of the debt respectively. Various Consumer
Dispute Redressal Commissions have held that if a person shares his Bank A/c details, he can’t
allege embezzlement.59
34. Also, when ownership and possession of the password reside in two different entities, it obscures
the victim of the theft, making criminal liability difficult to apply.60 To be guilty of cyber-crime
in India, a person must act voluntarily and wilfully. This means that to constitute a cyber-crime
in India, Mens-rea is an essential element along with Actus Reus.61
C. There is not enough evidence to prove the committal of offences.
35. The authenticity of the electronic signature as affixed by its owner is presumed u/sec 85B of the
B.E.A., 1872.
i. Mr. Manohar had rightful access to Mr. Karan’s desktop.
a. Witness Testimony: PW1 stated that Rahul and Mano fiddle with the desktop and at times
would connect his laptop to it and sit there for hours together doing something to which
no one objected to.62
59 ICICI Bank v. Ashish Agrawal, App. No. 435/2009, SCDRF, Raipur; Rishi Gupta v. ICICI Bank Ltd., CC No.
514/2010, SCDRF, Bangalore; M/s Pachisia Plastics v. ICICI Bank Ltd., CC no. 1059/2008,SCDRF Bangalore;
K Thyagarajan v. ICICI Bank, CC no. 2969/2009, SCDRF, Bangalore.
60 Daniel S. Shamah, Password Theft: Rethinking an Old Crime in a New Era, 12 MICH. TELECOMM. TECH. L.
REV. 335 (2006), available at http://www.mttlr.org/voltwelve/shamah.pdf.
61 Maneela, Cyber Crimes: The Indian Legal Scenario, 11 Us-China L. Rev. 570 2014.
62 Statement 4, Annexure-5, Pg. 14, Moot Proposition.
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b. Manohar’s Testimony: He stated that he was permitted by Mr. Karan to use his from his
bank A/c.
ii. The Key log files were not found in the Laptops.
36. The expert witness Hashmeet in his certificate has stated that the only log files found were in the
hard-disk and not in the laptops. Therefore, it is difficult to solely rely on this piece of evidence63
IV. THAT MR. MANOHAR AND MR. RAHUL ARE NOT LIABLE FOR THE OFFENCE OF
CRIMINAL CONSPIRACY U/SEC 120B R/W SEC. 34 OF B.P.C. 1860.
37. It is humbly submitted before the Hon’ble Court of Sessions that the accused are not liable u/sec.
120B64 r/w sec. 3465 of B.P.C, 1860 for offence of criminal conspiracy to commit offence of
murder66, hacking67 & identity theft68.
38. Combined reading of the provisions of criminal conspiracy with common intention culminates
following elements to prove the instant offence i.e., (i) there should be two or more persons, (ii)
there should be an agreement between themselves69; (iii) The agreement70 must be to do or cause
to be done an illegal act (or) a legal act by illegal means, (iv) A criminal act must be done by the
persons71, (v) The criminal act must be to further the common intention of all72 and
63 Sec. 45 r/w Sec 47, B.E.A., 1872; Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200; Mohd Zahid v. State
of Tamil Nadu, 1999 Cr LJ 3699 (SC).
64 Punishment of criminal conspiracy, Sec. 120B, B.P.C., 1860.
65 Acts done by several persons in furtherance of common intention, Sec. 34, B.P.C., 1860.
66 Punishment for murder, Sec. 302, B.P.C., 1860.
67 Computer related offences, Sec. 66, I.T. Act, 2005.
68 Punishment for identity theft, Sec 66C, I.T. Act, 2005.
69 Hussain Umar v. Dilip Sinhji, AIR 1970 SC 45, R. Dineshkumar v. State and Ors., AIR 2015 SC 1816.
70 The principle of actus contra actum [State of HP v. Krishan lal, AIR 1987 SC 773].
71 State of HP v. Krishan lal, AIR 1987 SC 773.
72 Manmohan Singh v. State of Punjab, AIR 1969 Punj 225.
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(vi) there must be participation of all persons in furthering the common intention.73
A. The accused are not liable for criminal conspiracy to commit murder.
39. In the instant case, Manohar and Rahul have not entered into any conspiracy to murder Karan.
There is no cogent proof74 to establish an agreement to commit the murder in the minds of
Manohar and Karan, which is promise against promise ie, actus contra actum. Also, there is no
meeting of minds to commit the said offence. In cases of conspiracy, there must be a clear chain
of facts pointing to guilt of the accused. The gist of the offence of conspiracy lies in the forming
of the scheme75 or agreement between the parties. Agreement is essential. Mere knowledge, or
even discussion, of the plan is not, per se, enough.76 There is no cogent evidence pointing
towards a conspiracy hatched between Manohar and Rahul.
40. When there is absolutely no evidence to connect the accused with the alleged conspiracy, the
accused can not be convicted on a charge u/sec 120B77. Therefore, Manohar and Rahul are
entitled to acquittal.
B. The accused are not liable for the offence of Hacking and Identity Theft.
41. It is pleaded that Mr. Manohar did not commit the illegal act78 of Hacking and Identity theft &
therefore, should not be made liable for the offence of committing criminal conspiracy to effect
these offences.
i. The essentials of Criminal Conspiracy are not satisfied.
73 Parichhat v. State of M.P., AIR 1972 SC 535; Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883; Hardeep
Singh v. State of Haryana, (2008) 12 SCC 39.
74 Kehar Singh v. Delhi Administration, AIR 1988 SC 1883.
75 In re, Ram Japu Rai, 1999 CrLJ 4164 (Pat).
76 R. Dineshkumar v. State and Ors., AIR2015SC181.
77 State of U.P. v. Phera Singh, AIR 1989 SC 1205.
78 Section 43. “Illegal”, “Legally bound to do”., Barata Penal Code, 1860.the term ‘illegal’ act (sec. 33) encompasses
everything (a) which is an offence (sec. 40) (b) which is prohibited by law, and (c)which furnishes a ground for civil
action.
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42. The essentials to prove the offence of criminal conspiracy are not proved beyond reasonable
doubt by the prosecution.79 The concurrence cannot be inferred by a group of irrelevant facts
artfully arranged so as to give an appearance of coherence.80
43. There was no agreement81 between Mr. Manohar and Mr. Rahul to decrypt the password of Mr.
Karan’s bank a/c as Manohar was already in possession82 of Mr. Karan’ bank a/c password and
there was no need for him to extract or decrypt the same. Also the alleged act of identity theft
arises out of the offence of hacking but the same can be said to be conspired for, as Manohar was
authorised by Mr. Karan to access his bank a/c. Manohar in exercise of this authority transferred
small amounts and the alleged amount of ₹ 2, 50, 000/- from Karan’s a/c in order to pay off the
debt he owed to Mr. Rahul and payment of college fees respectively.
ii. There was no common intention between the parties.
44. There arise no question of common intention83 between the parties as the acts were committed by
Mr. Manohar in his individual capacity under proper permission. In case of two persons, if one is
acquitted of the charge of criminal conspiracy, the other one is acquitted automatically (in case
of two persons).84
iii. There is no reliable circumstantial evidence.
79 Sec. 101 & 102: Burden of Proof, Barata Evidence Act, 1872, S.L. Goswami v. State of M.P., (1972) 3 SCC 22.
80 Kehar Singh v. State (Delhi Admn), AIR 1988 SC 1883.
81 Girija Shankar v. State of U.P., AIR 2004 SC 1808.
82 Para 15, pg. 3, Moot Proposition.
83 The general principle is that common intention as defined in s. 34 implies a pre-arranged plan and to convict
an Accused, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan
Pandurang v. State of Hyderabad, AIR 1955 SC 216.
84 Bhagat Ram v. State of Rajasthan, AIR 1972 SC 1502.
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45. If the prosecution relies upon the circumstantial evidence85, a clear link must be established &
the chain has to be completed, otherwise, it would indeed be hazardous to accept part of the link
as complete one and on the basis of such incomplete evidence,
the allegation of conspiracy falls.86
46. In the present case, Mr. Rahul visited Mr. Manohar during the time of examination87. Their
common interest in technology kept them busy with their computers88. The decryption activities
pursued by Mr. Rahul were in consonance with this interest and not to use that skill
maliciously89. A person from any stream of education can have certain hobbies, one of which is
having interest in computer sciences. Mere knowledge, or even discussion, of the plan is not, per
se, enough to establish conspiracy.90 Also, the discovery of Key-logger is not proved to be
anyway related to Mr. Rahul or Mr. Manohar as the log files related to the same were not
discovered from the laptops of either of the two accused.91 When there is absolutely no evidence
to connect the accused with the alleged conspiracy, the accused cannot be convicted on a charge
u/sec 120B92. Further, the acts committed by accused were performed in their in their individual
capacity without sharing of any intention93.
Therefore, the accused are not liable.
85 Mohan Lal v. State of Uttar Pradesh, AIR 1974 SC 1144.
86 Param Hans Yadav v. State of Bihar, AIR 1987 SC 1224.
87 Para 2, Annexure – 5, pg. 13, Moot Proposition.
88 Para 4, Anexxure – 5, pg. 14, Moot Proposition.
89 Para 6, pg. 2, Moot Proposition.
90 R. Dineshkumar v. State and Ors., AIR2015SC1816.
91 Expert Witness, Annexure – 7, pg. 20, Moot Proposition.
92 State of U.P. v. Phera Singh, AIR 1989 SC 1205.
93 Once an evidence for CC rejected, it cannot be used to bolster a charge of common intention u/sec 34 BPC.
[Ramnath Madho Prasad v. State of MP, AIR 1953 SC 420].
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PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, the Defendant
respectfully request this Hon’ble court to adjudge and declare:
1. That Mr. Manohar and Mr. Rahul are not guilty of murdering Mr. Karan u/sec 302 of
B.P.C., 1860.
2. That Mr. Manohar and Mr. Rahul are not liable for the offence of forgery forgery u/sec 465
r/w sec. 464 & 463 of B.P.C, 1860.
3. That Mr. Manohar and Mr. Rahul are not guilty of password hacking and identity theft
u/sec. 66 & 66C of I.T. Act, 2000.
4. That Mr. Manohar and Mr. Rahul are not guilty of hatching criminal conspiracy along with
common intention u/sec. 120B r/w sec. 34 of B.P.C, 1860.
And the Hon’ble Court may pass any such order as it may deem fit.
ALL OF WHICH IS RESPECTFULLY SUBMITTED COUNSELS ON BEHALF OF THE DEFENCE
AT: DURG, XANADU SD/-
DATED……………………………