My Memorial 2nd

7/27/2019 My Memorial 2nd

1/19

IN THE HONOURABLE SESSIONS MAGISTRATE COURT OFAZADPUR

AT AZADPUR

UNDER SECTION 26 OF CRIMINAL PROCEDURE CODE

CRIMINAL APPLICATION NO. ......OF 2013

THE STATE

(PROSECUTION)

V/S

WALAITI RAM & OTHERS

(ACCUSED)

MEMORIAL ON BEHALF OF THE ACCUSED


2/19

TABLE OF CONTENTS

TABLE OF CONTENTS LIST OF ABBREVIATIONS INDEX OF AUTHORITIES

List of statutes Law Lexicons referred List of books List of cases List of Internet Sources

STATEMENT OF JURISDICTION STATEMENT OF FACTS ISSUES PRESENTED SUMMARY OF ARGUMENTS

BODY OF PLEADINGS

ISSUE1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER

SECTION 302 READ WITH SECTION 34 OF THE IPC?

ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION OF THE

IMPUGNED TECHNIQUES VIOLATES THE RIGHT AGAINST SELF

INCRIMINATION ENUMERATED IN ARTICLE 20(3) OF THE INDIAN

CONSTITUTION?

ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY

DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES IT

FULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT?

PRAYER


3/19

LIST OF ABBREVIATIONS

AIR All India ReporterART Article

& And

Anr. Another

CJ Chief Justice

Cr.P.C Criminal Procedure Code

DB Division Bench

Evi Evidence

FB Full Bench

HC High Courti.e. That Is

J. Justice

IPC Indian Penal Code

Ors. Others

PARA Paragraph

SC Supreme Court

SUPRA Above

Vs. Versus

VOL. Volume


4/19

INDEX OF AUTHORITIES

LIST OF STATUTES

INDIAN PENAL CODE,1960 CRIMINAL PROCEDURE CODE,1974 EVIDENCE ACT THE CONSTITUTION OF INDIA,1950

TEXTS/ARTICLES/BOOKS REFERRED

Ratanlal and Dhirajlals, Law ofCrimes, 23rd

Edition Banerjees, Criminal Major Acts PSA Pillais, Criminal Law, 11th Edition Dr. Avtar Singh, Principles of The Law of Evidence, 20th Edition Dr. J.N.PANDEY, The Constitutional Law of India, 49th Edition P.M.Bakshi, The Constitution of India, 5th Edition K.D.Gaur, The Indian Penal Code, 4 th Edition

TABLE OF CASES

Selvi v. State of Karnataka AIR 2010 SC 1974

M.P.Sharma v. Satish Chandra AIR 1954 SC 300

Rojo George vs Deputy Superentendent Of Police 2006 (2) KLT 197

Nandini Satpathy v. P.L.Dani1978 AIR 1025, 1978 SCR (3) 608

Santokben Sharmanbhai Jadeja vs State Of Gujarat 2008 CriLJ 68, (2008) 1

Manoj Kumar Singh vs The State (Govt. Of Nct Of Delhi) on 6 April, 2011

GLR 497, 2008 (2) KLT 398

JOURNALS REFERRED

All India Reporter Criminal Manual Law Suit All India Criminal Decision


5/19

INTERNET SOURCES

www.unilexlegal.com www.legalserviceindia.com www.indiankanoon.org www.manupatra.com www.judid.nic.in www.google.com
http://www.unilexlegal.com/http://www.unilexlegal.com/http://www.legalserviceindia.com/http://www.legalserviceindia.com/http://www.indiankanoon.org/http://www.indiankanoon.org/http://www.manupatra.com/http://www.manupatra.com/http://www.judid.nic.in/http://www.judid.nic.in/http://www.google.com/http://www.google.com/http://www.google.com/http://www.judid.nic.in/http://www.manupatra.com/http://www.indiankanoon.org/http://www.legalserviceindia.com/http://www.unilexlegal.com/


6/19

STATEMENT OF JURISDICTION

THIS HONOURABLE SESSIONS COURT OF AZADPUR DOES NOTHAVE THE JURISDICTION TO TRY, ADJUDICATE AND ENTERTAIN

THIS MATTER UNDER SECTION OF THE CRIMINAL PROECEDURE

CODE OF INDIA.


7/19

STATEMENT OF FACTS

On 01.05.2009, a telephone call was received in Police Station No.1,Azadpur at about 1.00 AM that two dead bodies were lying on the berm

of the by-pass of Azadpur in a pool of blood. Upon arrival at the by-pass ,

the police party found the two dead bodies,one of male and other of

female.

In an ocular examination of the bodies revealed, the two dead bodies havebeen done to death by slitting their throats and in addition to that a large

number of small injuries had also been inflicted on various body parts.

The villagers from the nearby village Azadpur identified the deceased girlas Phool Wati from their village and the boy as Atma Singh of village

Mastana. The girl belonged to high caste and boy belonged to low caste.

The post mortem report revealed that the boy was aged about 22 yearsand the girl about 19 years and the cause of death was shock and

haemorrhage, on account of multiple injuries.

The blood stained earth was sent to forensic laboratory for analysis. Theforensic analysis revealed human blood bearing 3 different blood groups,

i.e. A+ boy, B+ girl and O+ did not relate to any of the deceased.

Additional facts that came to light were that Atma Singh and Phool Watibelonged to different castes but wanted to get married against the wishes

of the parents of Phool Wati

.

They eloped and got married at a Mandir. The family members of PhoolWati threatened to kill Atma Singh and his family members.

The police arrested Walaiti Ram and Yash Rani, the parents of the girland Yogesh, her younger brother and a community leader Zamidara on

finding a prima facie case against them for offence punishable u/s 302/34

IPC.

A medical examination of Yogesh revealed that he had a cut on his palm.The magistrate granted permission to the chief medical officer to draw a

blood sample of his forcefully, as may be necessary. The report of the

forensic laboratory disclosed that the third sample of blood, bearing

blood group O+ matched with the blood group of Yogesh.


8/19

The police found out the weapons through Narco test and by forensictest, they found blood group A+ and B+ on the knife , but did not find

O+.

The police also recorded the statement of one Zile Ram, a Dalit, agedabout 75 years and a resident of Village Mastana, to the effect that on

midnight of 30th April and 1st may, 2009, he had seen Yogesh and

Walaiti Ram near the place of recovery of dead bodies. On the basis of

this evidence, the police filed a final report


9/19

ISSUES RAISED

ISSUE1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER


ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION OF THE

IMPUGNED TECHNIQUES VIOLATES THE RIGHT AGAINST SELF

INCRIMINATION ENUMERATED IN ARTICLE 20(3) OF THE INDIANCONSTITUTION?

ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY

DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES ITFULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT?


10/19

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER


The accused cannot be punished under sec.302 read with sec.34 ofthe IPC as the complete research is not done and the evidence isnot strong against the accused. Therefore he cannot be accused of

murder according to sec.302


11/19

ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED

BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND

DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE

EVIDENCE ACT?

ARTICLE 20(3): No person accused of any offence shall becompelled to be a witness against himself

Under this sec. of the article if the person is compelled to confesssomething by 3

rddegree or using tests like narco, brain mapping,

etc. It can be stated that the right against self incrimination of

accused person is violated.


12/19




EVIDENCE ACT?

This section comes into play when a person whose statement is sought tobe proved, has become incapable of giving evidence.

Charges cannot be laid against the accused depending on the evidencegiven by a person who has become incapable of giving evidence ongrounds of his old age.

Hence the accused should not be held liable.


13/19

BODY OF PLEADINGS

ISSUE 1: WHETHER THE ACCUSED ARE PUNISHABLE

UNDER SECTION 302 READ WITH SECTION 34 OF THE IPC?

It is most humbly submitted before this Honourable Sessions Court that the

Accused are not liable for offence at all. This is submitted on the basis of the

very facts of the cases & arguments advanced and the various judgements

passed.

1.1 The police arrested Walaiti Ram, Yogesh, Yash Rani and Zamidara on the

basis of the facts which as follows:

-The deceased boy, named Atma Singh was of village Mastana and a lower

caste boy, who wanted to marry the deceased girl, named Phoolwati of a high

caste from village Azadpur. So, they eloped and got married at a temple.

- The family girl had threatened to kill the boy and his family.

- Zamidara called both the families and put pressure on them either to dissolve

their marriage or face a social boycott.

1.2 At the time of investigation a wound was found on the arm of girls brother

Yogesh but on which arm the wound was found or how old it was is not

mentioned. Yogesh could have got the wound many days before the murder.

1.3 The blood reports are not enough DNA tests should be carried to proof that

the 3rd

person whose blood was found at the murder site was Yogesh

1.4 Girls family had threatened to kill the boy and his family but not the girl but

here we see even the girl is killed. Why would they kill their own daughter?

Hence, the accused cannot be held liable under sec.302 read with sec 34 of

IPC.


14/19

ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION

OF THE IMPUGNED TECHNIQUES VIOLATES THE RIGHT

AGAINST SELF INCRIMINATION ENUMERATED IN

ARTICLE 20(3) OF THE INDIAN CONSTITUTION?

This is most respectfully submitted before this sessions court that this act of

Tests is violative of the provisions of Article 20(3) of the constitution which is

ex- facie evident from the facts of the case, the provisions of Article 20(3) and

the various judgements available on this subject matter.

The issue laid down by the accused is reasonable and the same has nexus

with the object sought to be achieved.

2.1The provision under article 20(3) provides for Prohibition against Self-Incrimination- that no person accused of any offence shall be compelled to

be a witness against himself. The protection is against compulsion to be a

witness. The Supreme Court interpreted the expression to be a witness

very widely so as to include oral, documentary and testimonial evidence.

2.2The results obtained through involuntary administration of such tests likeNarcoanalysis come within the scope of testimonial compulsion, thereby

attracting the protective shield of Article 20(3)1.

This right has the following essentials:a) It is a right pertaining to a person who is accused of an offence

b) It is a protection against compulsion to be a witness.c) It is a protection against such compulsion relating to his giving evidence

against himself.

1Selvi v. State of KarnatakaAIR 2010 SC 1974

2Santokben Sharmanbhai Jadeja vs State Of Gujarat 2008 CriLJ 68, (2008) 1 GLR 497, 2008 (2) KLT 398


15/19

2.3narcoanalysis is a complicated procedure which has drastic side effects. Itis further averred that if a person is subjected to Narcoanalysis at this

young age of 24 or even below that, it will have far reaching consequences

on both his physical and mental situation. The statements that came into

picture during the Narco analysis cannot be reliable.

HENCW, RIGHT AGAINST SELF INCRIMINATION

ENUMERATED IN ARTICLE 20(3) OF THE INDIAN

CONSTITUTION WAS VIOLATED OF THE ACCUSED.


16/19




EVIDENCE ACT?

This is most respectfully submitted before this sessions court that this act is

violative of the provisions of sec.32 of the evidence act which is ex- facie

evident from the facts of the case, the provisions of sec.32 and the various

judgements available on this subject matter.

The issue laid down by the accused can be considered as valid and the samehas nexus with the object sought to be achieved.

3.1 Under sec.32 of Evidence Act a statement, written or verbal, or relevant

facts made by a person who has become incapable of giving evidence cannot be

called as a witness.

3.2 Incapability of a person is decided on the basis of his age, mental and

physical condition etc. If the person is insane or too old or he has some physical

problems like blindness or if he is underage he wont be fit to be a witness.


17/19

3.3Here, the witness is incapable because of his age because he is 75 year old.

Hence , the accused cannot be held guilty on the statement of the witness.


18/19

PRAYER

Wherefore it may please this Honourable Court in the lights of facts presented,

issues raised, arguments advanced, and authorities cited, the counsel for the

Accused humbly pray before this Honourable Court, to kindly adjudge and

declare:

1) IN THE INSTANT CASE DEATH SENTENCE SHOULD NOT BEDECLARED.

2) THAT THE ACCUSED BE RELEASED WITHOUT ANY COST3) THAT THE ACCUSED RIGHT TO LIFE AND RIGHT UNDER ARTICLE

20(3) SHOULD BE PROTECTED.

And pass any other appropriate order as the court may deem fit and for this act

of kindness, the Accused as in duty bound, shall forever pray.

Respectfully Submitted

Sd/-

Priya Arora

Council for the accused


19/19

My Memorial 2nd

Documents