TEAM CODE- TAW 6 SURANA & SURANA NATIONAL .... I. Vibhute, P.S.A. Pillai’s Criminal Law, 12th Ed. 20. Prof. S.N. Mishra, Indian Penal Code, 13th Ed. 8 SURANA & SURANA NATIONAL TRIAL

TEAM CODE- TAW 6

SURANA & SURANA NATIONAL TRIAL ADVOCACY

MOOT COURT COMPETITION, 2015

BEFORE THE COURT OF SESSIONS

AT DURG, XANADU

S.C. No. 111 of 2015

STATE OF XANADU PROSECUTION

V.

MANOHAR LAL & RAHUL GULATI DEFENCE

FOR OFFENCES CHARGED UNDER

SECTION 302, 465 r/w 34, 120 B AND 109 OF BHARAT PENAL CODE, 1860

ALONGWITH SECTION 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000

MEMORANDUM ON BEHALF OF THE DEFENCE

--MANOHAR AND RAHUL--

COUNSEL FOR THE DEFENCE

2 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT- 2015

MEMORANDUM FOR THE DEFENCE

TABLE OF CONTENTS

LIST OF ABBREVIATIONS................................................................................................. 4

INDEX OF AUTHORITIES................................................................................................... 5

STATEMENT OF JURISDICTION...................................................................................... 9

STATEMENT OF FACTS..................................................................................................... 10

STATEMENT OF CHARGES............................................................................................... 11

SUMMARY OF ARGUMENTS............................................................................................. 12

ARGUMENTS ADVANCED.................................................................................................. 14

[I] MANOHAR AND RAHUL ARE NOT GUILTY FOR OFFENCE OF MURDER………………………..14

A. ABSENCE OF MENS REA ON THE PART OF ACCUSED……………………………………….…14

B. ACCUSED ACTED OUT OF NECESSITY………………………………………………………...….15

C. THE POSTMORTEM REPORT IS INCONSISTENT…………………………………………………17

D. REASONABLE DOUBT……………………………………………………………………………….17

[II] MANOHAR AND RAHUL ARE NOT LIABLE FOR FORGERY WITH COMMON INTENTION…..18

A. THERE IS NO MAKING OF A FALSE DOCUMENT…………………………………………..……19

B. NO KNOWLEDGE OF FORGERY……………………………………………………………….…...20

C. NO INTENTION TO CAUSE DAMAGE OR INJURY TO EITHER PUBLIC OR ANY PERSON…20

D. THE ACT IS NOT A PRE-ARRANGED PLAN……………………………………………………….21

E. ABSENCE OF COMMON INTENTION……………………………………………………………….21

F. PRESENCE OF ALL THE ACCUSED………………………………………………………………….22

[III] MANOHAR AND RAHUL ARE NOT LIABLE FOR THE OFFENCE OF CRIMINAL CONSPIRACY

AND RAHUL IS LIABLE FOR ABETMENT TO MURDER……………………………………………...……23

A. THERE WAS NOT AN AGREEMENT BETWEEN DW-1 & DW-2……………………………….....24



B. THERE WAS NO INSTIGATION BY DW-1 U/S 109…………………………………….……..25

[IV] MANOHAR AND RAHUL ARE NOT LIABLE U/S 66 AND 66C OF INFORMATION TECHNOLOGY

ACT, 2000…………………………………………………………………………………………………….….27

A. COMPUTER RELATED OFFENCE………………………………………………………………27

B. IDENTITY THEFT………………………………………………………………………………….28

PRAYER FOR RELIEF…………………………………………………………………….29



LIST OF ABBREVIATIONS

AIR All India Reporter

DW Defence Witness

CrPC Code Of Criminal Procedure

PW Prosecution Witness

BPC Bharat Penal Code, 1860

ITA Information Technology Act, 2000

S. Section

SC Supreme Court

u/s. Under Section

CrLJ Criminal Law Journal

SCC Supreme Court Cases

Bom LR Bombay Law Review

A.P. Andhra Pradesh



INDEX OF AUTHORITIES

I. TABLE OF CASES

S. No. Case Title Citation Page No.

1. Gurcharan Singh v. State of Punjab AIR 1956 SC 722 15

2. Mayer Hans George AIR 1965 SC 722 15

3. Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102 16

4. R v. Moganlal 14 ILR Bom 115 16

5. State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868 16

6. Reniger v. Fogosia 1984 SCC 16

7. State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868 16

8. Southwark Borough London Council v. Williams (1971) 2 All ER 175 16

9. Anvar uddin v Shahkoor 1996 Cri LJ 1270 (SC) 17

10. Ramakant Rai v. Madan Rai Cr LJ 2004 SC 36 18

11. State of U.P. v. Inderjeet AIR 2000 SC 1520 18

12. Hardeep Singh v. State of Haryana (2008)12 SCC 39 19

13. Nandaram agarwalla v. state of west Bengal AIR 1957 Cr LJ 442 19

14. Adikantaswami v. emperor AIR 1947 Pat 251 19

15. Sondara Pandian v. Vishwanathan 1986 Cr LJ 1181 (Mad.) 20

16. Kali Prasad Banerjee v. Emperor AIR 1915 CAL 786 20

17. Krishnarao Raujirao V. State of M.P AIR 1953 20



18. Shri Kantiah’s case, A.I.R. 1955 SC 287 21

19. Pandurang v. State of Hyderabad, AIR 1955 SC 216 21

20. State of Bihar v. Lala Mahto A.I.R 1955 pat. 161 at p.169 22

21. Krishna Govind v. State of Maharashtra AIR 1963 22

22. Smt. Badamo Devi v. State, 1980 Cr. L.J. 1143 at p. 1145 22

23. Bijay Singh Dangal v. State of Madhya Bharat ,A.I.R 1956 M.B. 170 at p.172 22

24. S.L. Goswami v. State of M.P., (1972) 3 SCC 22 23

25. R. Venkatakrishnan vs. CBI , (2009) 11 SCC 737 24

26. Esher Singh vs. State of A.P. , 2004 (11) SCC 585 24

27. Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469 24

28. State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744 25

29. Jamuna Singh vs. State of Bihar , AIR 1967 SC 553 : 1967 Cr LJ 541 25

30. Kulwant Singh vs. State of Punjab, (2007) 15 SC 670 26

31. GouraVenkata Reddy vs. State of AP , (2003) 12 SCC 469 26

BOOKS:

1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

2. Gaur, KD Firearms , Forensic Ballistics, Forensic Chemistry and Criminal Jurisprudence, (2nd Ed

1989)

3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5. Harris, Criminal Law, (22nd Ed. 2000)



6. Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

7. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

8. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

9. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

10. Ratanlal and Dhirajlal, The Indian Penal Code, 34th Ed. (2013)

11. Ratanlal and Dhirajlal, The Law of Evidence, 34th Ed. (2013)

12. Vakul Sharma, Information Technology Law & Practice.(2004)Ed.

13. S.R. Bhansali, Commentary on The Information Technology Act, 2nd Ed. (2012)

14. Dr. H.S.Gour, Penal Law of India, 11th Ed. Reprint (2004), Secs. 1 to 120.

15. Dr. H.S.Gour, Penal Law of India, 11th Ed. Reprint (2004), Secs. 363 to End

16. Nandan Kamath, Law Relating to Computers, Internet and E- Commerce, 2nd Ed.

17. Dr. Gupta & Agarwal, Cyber Laws, 1st Ed. (2008)

18. Chris Reed, Internet Law, 2nd Ed

19. K. I. Vibhute, P.S.A. Pillai’s Criminal Law, 12th Ed.

20. Prof. S.N. Mishra, Indian Penal Code, 13th Ed.



WEBSITES:

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx 4. www.scconline.in 5. www.manupatra.com 6. www.indiankanoon.org 7. www.cdjlawjournal.com 8. www.westlawindia.com

STATUTES: 1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)

3. The Indian Penal Code, 1860 (Act 45 of 1860) 4. The Information Technology Act, 2000 (Act 21 of 2000)



STATEMENT OF JURISDICTION

The Defence invokes the jurisdiction of this Hon’ble Court U/s. 177 read with s. 209 of the

Code of Criminal Procedure 1973.

Section 177. Ordinary place of inquiry and trial. - “Every offence shall ordinarily be inquired

into and tried by a Court within whose local jurisdiction it was committed”.

Read with

Section 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 Section 207 or Section 208, as the case

may be, the case to the Court of Session, and subject to the provision of this code relating

to bail, remand the accused to 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.”

All of which is respectfully submitted



STATEMENT OF FACTS

[A] BACKGROUND:

Manohar was taken care by his uncle, Karan after his parents’ death. He got admission in TMC

Medical College in 2013 and there, he befriended Rahul. Karan took a policy of 2 crore and

appointed Mano as benefactor without anyone’s knowledge.

[B] EVENTS THAT UNFOLDED AND LED TO THE COMMISSION OF ALLEGED

CRIMES:

May 21, 2014: Karan informed Mano about the policy in his name. Rahul connected a small

USB look-a-like in Karan’s computer and transferred money in his account.

July 4, 2014: Karan’s doctor, Mr. Choudhary prescribed strong medications to him. College

authorities asked Mano to pay his fee before Aug 1, 2014.

Aug 2, 2014: Karan asked Mano to transfer his college fee to his account. Due to incorrect

password, Mano could not do so. Therefore, he opened a folder contained Karan’s bank account

details and transferred amount of Rs. 2.50 lakhs including his daily expenses instead of 2.25

lakhs .

Aug 3, 2014: Karan’s condition worsened; therefore, Mano administered Angispan through

syringe to Karan. After half an hour, Karan developed fits and collapsed.

[C] DISCOVERY OF INSURANCE, PRESCRIPTION, AND THE TRIAL:

Aug 3, 2014: Devika found policy under Mano’s name and some bank passbooks. Devika filed

an FIR against Manohar and Rahul.

Aug 4, 2014: It was found out that paper on which Mano wrote the medicines was Dr.

Choudhary’s prescription. Manohar and Rahul were arrested. Charges accordingly framed under

Bharat Penal Code.



STATEMENT OF CHARGES

The Defence, most respectfully ask this Court of Sessions at Durg to drop the following charges

as framed by it in accordance with Chapter XVII of Code of Criminal Procedure, 1973:-

CHARGE I

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 302 OF BHARAT PENAL

CODE FOR THE OFFENCE OF MURDER.

CHARGE II

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 465 r/w 34 OF BHARAT

PENAL CODE FOR COMMITTING FORGERY WITH COMMON INTENTION.

CHARGE III

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 120B OF BHARAT PENAL

CODE FOR OFFENCE OF CRIMINAL CONSPIRACY AND LATTER HAS BEEN

CHARGED U/S 109 FOR ABETMENT TO COMMIT MURDER.

CHARGE IV

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 66 AND 66C OF

INFORMATION TECHNOLOGY ACT, 2000 FOR ALTERING WITH THE ACCOUNT

OF KARAN AND FOR IDENTITY THEFT.



SUMMARY OF ARGUMENTS

[I] MANOHAR AND RAHUL ARE NOT GUILTY FOR OFFENCE OF MURDER.

It is humbly submitted before this Hon’ble Court that Manohar and Rahul are not liable u/s

302 of BPC for murder as there is no requisite intention and mens rea to constitute the offence.

Furthermore the issue as to whether or not he had committed the actus reus must be put into

question as the direct evidence has several infirmaries and inconsistencies. Hence the crime of

murder cannot stand against the accused.

[II] MANOHAR AND RAHUL ARE NOT LIABLE FOR FORGERY WITH COMMON

INTENTION.

It is humbly contended that Manohar had neither intended to forge any document nor he

had the knowledge about the prescription. He was under the presumption that the prescription

was only a piece of paper. All the acts done by him were to save the life of his uncle.



[III] MANOHAR AND RAHUL ARE NOT LIABLE FOR THE OFFENCE OF

CRIMINAL CONSPIRACY AND RAHUL IS NOT LIABLE FOR ABETMENT TO

MURDER.

It is humbly submitted before this Court that Manohar and Rahul cannot be held jointly

liable as none of the constituent elements of the alleged offence are proved. The prosecution has

not produced any evidence and has heavily relied on only on circumstantial evidence which

amounts to bare conjecture. Neither mens rea nor actus reus can be made out from the actions of

the accused. The charges thus, not maintainable.

MANOHAR AND RAHUL ARE NOT LIABLE U/S 66 AND 66C OF INFORMATION

TECHNOLOGY ACT, 2000.

It is humbly submitted before this Hon’ble Court that Manohar and Rahul are not guilty of

offence under section 66 and 66C of The Information Technology Act 2000. Intention is must to

determine the guilt of the accused under section 66 and 66c of ITA 2000. Fraudelent or dishonest

use is must to create a criminal guilt for this offence. However all these elements are absent in

the following case. Also there was no unauthorized access or illegal transactions that took place.



ARGUMENTS ADVANCED

[I] MANOHAR AND RAHUL ARE NOT GUILTY FOR OFFENCE OF

MURDER

It is humbly contended before this Hon’ble Court that Manohar (hereinafter referred as DW

11) and Rahul (hereinafter referred as DW 22) are not guilty of offence u/s 302 of Bharat Penal

Code, 1860 (hereinafter referred as BPC). In the present instance, the Hon’ble Court of Sessions

has framed the charges based on the Final Report3 submitted by Inspector Aamir Ali,

Investigating Officer (hereinafter referred as PW 64) u/s 1735 of Code of Criminal Procedure(

hereinafter referred as CrPC).

In the matter in hand it has been wrongfully alleged that accused has committed murder in

course of administering medicine to deceased. It should be considered that-

[A]Absence of mens rea on the part of accused

[B] Accused acted out of necessity

[C] Postmortem Report is inconsistent

[D] All creating the existence of reasonable doubt

[A] ABSENCE OF MENS REA ON THE PART OF ACCUSED: 1 Moot Proposition, List of Witnesses, p. 6

2 Ibid

3 Moot Proposition, Annexure-6, Report of PW 11, p.16

4 Moot Proposition, List of witnesses, p. 6

5 Section 173- Report of Police Officer on completion of investigation, Code of Criminal Procedure, 1973



It is humbly submitted before this Hon’ble Court that accused DW1 acted purely on good

intention to prevent any larger harm to deceased. Under no circumstances can a person be

justified in intentionally causing harm; but if he causes harm without any criminal intention, and

merely with the knowledge that it is likely to ensure, he will not be held responsible for the result

of his act, provided it be done in good faith to avoid or prevent harm to any person.6

Where an offence depends upon the proof of intention the Court must have proof of facts

sufficient to justify in coming to the conclusion that the intention existed. No doubt one has

usually to infer from conduct, and one matter that has to be taken into account is the probable

effect of conduct. But that is never conclusive.7

Mens rea is an essential element to constitute a criminal offence8 which simply means the

purpose of design or doing of an act forbidden by criminal law.

In the case at hand, it can be seen that-

• The act done by accused DW 1 is purely unintentional and acted on good belief.

• It can be inferred from the statements of accused that his alleged criminal actions were

unpredicted and he had no mens rea to commit such a crime.9

• There is no involvement of accused DW 2 and he was also not present at the scene of

alleged crime.

[B] ACCUSED ACTED OUT OF NECESSITY: To attract the defence under section 81 of the

BPC it has to be proven that the actions of the accused were done in good faith to prevent any

6 Ratanlal and Dhirajlal, Bharat Penal Code, 33rd Edition

7 Gurcharan Singh v. State of Punjab, AIR 1956 SC 722

8 Mayer Hans George, AIR 1965 SC 722

9 Moot Proposition, Annexure- 5, p. 12



other harm to the person or property of others10 and due to an absence of mens rea the action or

crime committed is excused.11 The three prerequisites to this section are-

i. The Presence of the particular motive specified

ii. The existence of good faith

iii. The absence of intention to commit the crime; i.e. Criminal Intention12

In every law there are some things, which when they happen, a man may break the words of

the law, and yet not break the law itself and such things are exempted out of the penalty of the

law and the law privileges them although they are done against the letter (not the spirit) of it;

breaking the words of the law is not breaking the law, so long as the intent of the law is not

broken. It is a common proverb, ‘quod necessitas non habet legem’- necessity knows no law.13

If the situation warrants harm, the harm must not be intentional or with criminal intent14.

Thus looking at the facts-

• The actions of Accused were necessary for the safety of his uncle Karan as Karan was not in

a position to take medicines orally.

• The accused’s alleged criminal acts are those which are done out of necessity to prevent a

greater evil and he had under this section chosen the evil in which less harm would have

been caused or inflicted to others, hence excusing his acts under this section.15

10 Dendati Sannibabau v. Varadapureddi AIR 1959 AP 102

11 R v. Moganlal 14 ILR Bom 115

12 State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868

13 Pollard In Reniger v. Fogosia

14 State of Mysore v. P Yallapa Malli Mad LJ (1965) Mad 868

15 Southwark Borough London Council v. Williams (1971) 2 All ER 175



• As stated in facts that when Karan started coughing heavily, DW 1 tried to call Dr.

Choudhary16 and when there was no possible way for him, he, on good faith administered

medicine to Karan.

[C] THE POSTMORTEM REPORT IS INCONSISTENT:

As per the Postmortem Report17 the opinion stated that death was due to cardiac arrest

which was triggered by drug overdose/ cross reaction. It failed to mention the details of drugs

which caused drug cross reaction. Also, according to the facts, Karan was a heavy consumer of

alcohol. He was also taking strong medications. This must have caused cross reaction in the body

of Karan. Forensic Report18 has stated that death was caused due to air embolism, but when there

is air embolism, the death is fatal. Considering the facts, when DW 1 administered Angispan to

Karan, he was quite for about half an hour19. This shows that death was not caused by air

embolism.

Where the expert evidence is obscure and oscillaring, it is not proper to discredit the direct

testimony of the eye-witnesses on such uncertain evidence.20

[D] REASONABLE DOUBT:

In light of all the aforementioned arguments, the accused humbly submits that there exists

reasonable doubt and hence he should be acquitted of the alleged crime. A reasonable doubt must

not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason and

common sense arising out of the evidence of the case.21

16 Moot Proposition, Para 21, p. 4

17 Ibid, Annexure- 3, p. 9

18 Ibid, Annexure, p.11

19 Ibid, para 22, p. 4

20 Anvar uddin v Shahkoor, 1996 Cri LJ 1270 (SC)



The prosecution heavily relied on the Postmortem Report and Forensic Report and failed to

make it clear what caused the death of Karan. This gap must be filled by the prosecution by

legal, reliable and unimpeachable evidence before a conviction can be sustained.22 The

prosecution has to show beyond reasonable doubt that the eventual cause of death was the injury

caused by the accused.23

Therefore, it is humbly submitted before this Hon’ble Court that the charge under section

302 of the BPC has not been made out due and he should be acquitted of the same.

[II] MANOHAR AND RAHUL ARE NOT LIABLE FOR FORGERY WITH COMMON

INTENTION.

Considering the elements of ss.463 read with S.34 of BPC, it is evident that the following

will not form the basis for holding the Accused jointly liable for the charge of forgery read with

common intention as framed by the Hon’ble Court of Sessions at Durg, Xanadu :

i. The making of a false document or a part of it ;

ii. Such making should be with intent;

iii. There must be a common intention in the sense of a pre-arranged plan between the two;

21 Ramakant Rai v. Madan Rai Cr LJ 2004 SC 36

22 IV. Nelson R. A. , Indian Penal Code, p. 2905 , (10th Ed. 2008)

23 State of U.P. v. Inderjeet, AIR 2000 SC 1520



iv. The person sought to be so held liable had participated in some manner in the act

constituting the offence.24

The essence of section 34 is that the document should be made “dishonestly” and with an

intention to commit fraud, i.e. It should be “fraudulently” done where the element “to deceive” a

person should be present.

It is humbly contended that the evidence on record and the facts of the case clearly state

that there was neither element of forgery present nor any common intention was involved. To

constitute forgery with common intention the essentials needed are not present in the present

case. In case of the document [A] there is no making of a false document [B] no knowledge of

forgery [C] no intention to cause damage or injury to either public or any person [D] the act is

not a pre-arranged plan [E] absence of common intention [F] presence of all the accused

[A] THERE IS NO MAKING OF A FALSE DOCUMENT:

Unless there is an element of fraud, the making of a false document, would not amount to

forgery because one of the intents contemplated by sec.463, IPC, is that the false documents

must be made with intent to commit fraud or that fraud may be committed.25

In order to convict a person of dishonestly or fraudulently using a forged document the

prosecution has to prove beyond reasonable doubt that the accused person knew that the

document was forged and the failure of the accused to establish his story regarding the document

cannot inevitably lead to his conviction if there is a reasonable possibility about the truth of his

version.26

24 Hardeep Singh v. State of Haryana (2008)12 SCC 39

25 Nandaram agarwalla v. state of west Bengal AIR 1957 Cal. 222 at p.224; 1957 Cr LJ 442

26Adikantaswami v. emperor, AIR 1947 Pat 251: 47 Cr LJ 317: 222 IC 620.



Here, the accused never made any false document as he had no knowledge, no intention to

commit any fraud or injury towards Karan. The conduct of Dw-1 was in favour of Karan as it

was his act of necessity at that point of time by trying to save his life by all means.

[B] NO KNOWLEDGE OF FORGERY

Accused no.2 admitted that he forged the letter. Accused no.1 who passed the letter to chief

minister had no knowledge that the letter was a forgery. The “absence of the evidence of

knowledge” that the letter was forgery immunized accused no.1 who could not be convicted. 27

Accordingly, Dw-1 never had any knowledge about the “prescription” as Dw-1 was under

the presumption that it was only a “piece of paper”, which after knowing that it was prescription,

he himself informed about the same to Dr. Choudhary.

[C] NO INTENTION TO CAUSE DAMAGE OR INJURY TO EITHER PUBLIC OR

ANY PERSON -

It was held by Supreme Court that, “Mere signing of a telegram in another’s name without

any intention to cause injury to him and actually causing no injury, will not amount to forgery

though the signature was without authority.28 The gist of the offence is the intention to cause

damage or injury. It is not material whether damage, injury or fraud is actually committed or

not.29

DW-1 had no intention by the way of forgery to cause damage to Karan as well as Dr.

Choudhary as he had no knowledge about the prescription. The act done by Dw-1 was in

emergency, only having good intention to save the life of his uncle.

27 Sondara Pandian v. Vishwanathan, 1986 Cr LJ 1181 (Mad.)

28 Kali Prasad Banerjee v. Emperor AIR 1915 CAL 786: 26 IC 668: 16 CR LJ 76.

29 Krishnarao Raujirao V. State of M.P, AIR 1953. See also, Kalyanmal, (1937) Nag 45.



[D] THE ACT IS NOT A PRE-ARRANGED PLAN –

Where one of the accused persons committed various acts which constituted offences for

which he was convicted by the court and where other accused did not participate in the

commission of these acts of the convicted accused although earlier to the commission of those

offences, those accused might have done something in that direction, still those acts did not form

any ingredient of the offence committed by the convicted accused and as such it cannot be said

that other accused had participated in the commission of the criminal acts of the convicted

accused.30

“Now in the case of section 34 we think it is well established that a common intention

presupposes prior concert. It requires a pre-arranged plan, because before a man can be

vicariously convicted for the criminal act of another, the act must have been done in furtherance

of the common intention of them. The common intention is never been established between DW-

1 & DW-2 as there is nowhere any instance from where the inference can be drawn that the two

of them had common intention to commit any offence.

[E] ABSENCE OF COMMON INTENTION

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.31

The act must have been done in furtherance of common intention of all. Accordingly, there

must have been a prior meeting of minds.32 The section operates only when it is found as a fact

30 Shri Kantiah’s case, A.I.R. 1955 SC 287

31 P.S.A. Pillai: Criminal Law, K I Vibhute (12th Ed. 2014)

32 Pandurang v. State of Hyderabad, AIR 1955 SC 216



that the criminal act done by an individual is in furtherance of the common intention and not

without it.33

“It is well settled that common intention within the meaning of the section implied a pre-

arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan

may also develop on the spot during the course of the commission of the offence; but the crucial

circumstance is that the said plan must precede the act constituting the offence, if that be so,

before a court can convict a person under sec. 302, read with 34 of Indian penal code, it should

come to a “definite conclusion” that the said person had prior concert with one or more other

persons, named or unnamed, for committing the said offence.” 34

The accused had no reason nor any purpose to commit the offence as Dw-1 didn’t establish

any mens rea. DW-1 & DW-2 had the knowledge about the insurance policies from the very

beginning; also Dw-1 was very close to Karan and had the only intention to save Karan’s life.

Nowhere was Dw-2 present nor he had any knowledge about the incidence.

[F] PRESENCE OF ALL THE ACCUSED

In order to attract section 34, it is essential that several accused participate not only in

design but also in action. In other words, it is not sufficient that several accused share a common

intention to commit an offence but they should also actually participate in the commission of the

offence by doing some act or the other in furtherance of common intention.35

The section requires two conditions to be fulfilled for its application 1) The accused must be

present on the scene of the occurrence and 2) there must be prior concert or pre-arranged plan. 36 33 State of Bihar v. Lala Mahto A.I.R 1955 pat. 161 at p.169

34 Krishna Govind v. State of Maharashtra, Subbarao. J. stated

35 Smt. Badamo Devi v. State, 1980 Cr. L.J. 1143 at p. 1145

36 Bijay Singh Dangal v. State of Madhya Bharat A.I.R 1956 M.B. 170 at p.172



Here, DW-1 was present at the time when there was death of Karan. The act of DW-1 had

taken place in front of a third person i.e. Raghav. DW-2 had neither knowledge nor any intention

to cause any injury to Karan.

[III] MANOHAR AND RAHUL ARE NOT LIABLE FOR THE OFFENCE OF

CRIMINAL CONSPIRACY AND RAHUL IS NOT LIABLE FOR ABETMENT TO

MURDER.

Considering the elements of S. 107 & 120A, it is evident that the following will not form

the basis for holding the Accused jointly liable for the charge of Criminal Conspiracy as framed

by the Hon’ble Court of Sessions at Durg, Xanadu:

i. Instigating a person to commit an offence; or

ii. Engaging in a conspiracy to commit it; or

iii. Intentionally aiding a person to commit it.

iv. There should be two or more persons;

v. There should be an agreement between themselves;

vi. The agreement must be to do or cause to be done:

(a) an illegal act (or) a legal act by illegal means;

The onus of proving all the ingredients of an offence is always upon the Prosecution and at

no stage does it shift to the Accused. Even in cases where the defence of the Accused does not

appear to be credible or is palpably false that burden does not become any less37. Therefore, to

37 S.L. Goswami v. State of M.P., (1972) 3 SCC 22



establish a charge U/s. 120B read with s. 34, the Prosecution must prove all of the above beyond

a reasonable doubt38

[A] THERE WAS NO AGREEMENT BETWEEN DW-1 & DW-2:

It would not be enough for the offence of conspiracy when some of the accused merely

entertained a wish, howsoever, horrendous it may be, that offence be committed. 39 In the

absence of the agreement, a mere thought to commit a crime does not constitute the offence.40

A few bits here and a few bits there on which the prosecution relies cannot be held to be

adequate for connecting the accused with the commission of the crime of criminal conspiracy. It

has to be shown that all means adopted and illegal acts done were in furtherance of the object of

conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be

prior in point of time than the actual commission of the offence in furtherance of the alleged

conspiracy.41

In this case, it can be inferred from the facts that DW-1 & DW-2 never had any form of

agreement, whether express or implied to commit any offence. For the offence of conspiracy

there must be meeting of minds and there should be discussions regarding the object.

Considering the Statements of Witnesses42 to the police it can be said that there was no meeting

of minds, so the accused cannot be held guilty for conspiracy.

[A.1] ABSENCE OF AGREEMENT FOR THE PURPOSE OF DOING AN ILLEGAL ACT -

38 ss. 101 & 102: Burden of Proof, Barata Evidence Act, 1872

39 CBI/SIT vs. Nalini & Others , reported in (1999) 5 SCC 253

40 R. Venkatakrishnan vs. CBI , (2009) 11 SCC 737

41 Esher Singh vs. State of A.P. , 2004 (11) SCC 585

42 Moot proposition , Annexure – 5



Having said that there was no agreement between the Accused in the first instance, it is

irrelevant to show that the agreement was for the purpose of committing an Illegal Act.

[A.2] NO ILLEGAL ACT DONE-

By virtue of s. 43 of the BPC, the term ‘illegal’ act43 encompasses everything:

a) which is an offence44

b) which is prohibited by law, and

c) which furnishes a ground for civil action.

In the present context, illegal act would refer to the offences alleged by the Prosecution. In

the case of conspiracy, the mere agreement to do an illegal act suffices to prove the charge of

conspiracy. It is not imperative that an overt act must have been committed in furtherance of the

common design.45

To establish the charge of conspiracy, knowledge about the involvement or indulgence in

either an illegal act or a legal act by illegal means is necessary.46

[B] THERE WAS NO ABETMENT BY DW-1 U/S.109 -

A word uttered in a fit of anger or emotion without intending the consequences to actually

follow, cannot be said to be instigation. Instigate means the active role played by a person with a

view to stimulate another person to do the thing. In order to hold a person guilty of abetting it

must be established that he had intentionally done something which amounted to instigating

another to do a thing. Instigation must be of an unknown person. 43 ‘Act’ denotes a single as well as a series of acts (vide s. 33, BPC, 1860)

44 s. 40, Barata Penal Code, 1860

45 Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469

46 State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744



It is only in the case of a person abetting an offence by intentionally aiding another to

commit that offence that the charge of abetment against him would be expected to fail when the

person alleged to have committed the offence is acquitted of that offence.47

For the offence of abetment, the instigation must be with reference to the thing that was

done and not to the thing that was likely to have been done by the person who is instigated. It is

only if this condition is fulfilled that a person can be guilty of abetment by instigation.

“Act abetted” in section 109 means the specific offence abetted. Therefore, the offence for

the abetment of which a person is charged with the abetment is normally linked with the proved

offence. The commission of the offence of rape in a hut then in a possession of the accused was

held to be not sufficient in itself to show that the accused abetted the offence.

The words “act abetted” as used in section 109 means the specific offence abetted. Mere

help in the preparation for the commission of an offence which is not ultimately committed is not

abetment within the meaning of section 109. For constituting offence of abetment, intentional

and active participation by the abettor is necessary. 48 When a person is charged with the

abetment of an offence, it is normally linked with an offence which has been proved.49

In the context of the charge filed on DW-2, we can infer from the facts that DW-2 never

abetted DW-1 for commission of any offence. As mentioned above, the instigation must be with

a intention to a person to commit it. The prosecution here relies only one instance, when DW-2

once told DW-1, that how rich he would be if his uncle went on a long journey.50

47Jamuna Singh vs. State of Bihar , AIR 1967 SC 553 : 1967 Cr LJ 541

48Kulwant Singh vs. State of Punjab, (2007) 15 SC 670

49GouraVenkata Reddy vs. State of AP , (2003) 12 SCC 469

50 Moot proposition, para 16 line 6, pg. 3



This statement alone cannot make DW-2 liable of abetment as there is no requisite mens rea and

intention present in that sentence.

[IV] MANOHAR AND RAHUL ARE NOT LIABLE U/S 66 AND 66C OF

INFORMATION TECHNOLOGY ACT, 2000.

It is humbly submitted before this Hon’ble Court that Manohar and Rahul are not guilty of

offence under section 66 and 66C of The Information Technology Act 2000 (hereinafter referred

to as ITA 2000). Section 66of ITA 2000 states:

[A.] Computer related offences - If any person, dishonestly or fraudulently, does any act

referred to in section 43;

Therefore to establish an offence under section 66 of ITA 2005 the condition of mens rea is

very important. Computer related offences are dealt with under this Section. Data theft stated in

Section 43 is referred to in this Section.

Whereas it was a plain and simple civil offence with the remedy of compensation and

damages only, in that Section, here it is the same act but with a criminal intention thus making it

a criminal offence. The act of data theft or the offence stated in Section 43 if done dishonestly or

fraudulently becomes a punishable offence under this Section.

Section 24 of BPC defines “Dishonestly”.—Whoever does anything with the intention of

causing wrongful gain to one person or wrongful loss to another person, is said to do that thing

“dishonestly”.



Section 25 of BPC defines “Fraudulently”.—A person is said to do a thing fraudulently if he

does that thing with intent to defraud. Section 66C of ITA 2000 states:

[B] Punishment for identity theft - Whoever, fraudulently or dishonestly make use of the

electronic signature, password or any other unique identification feature of any other person.

Identity theft occurs when one’s identity is wrongfully appropriated by another. Thus

intention is must to determine the guilt of the accused under section 66 and 66c of ITA 2000.

Fraudelent or dishonest use is must to create a criminal guilt for this offence. Deception is an

essential element of fraud which is absent here. However in the present case there was no

intention of DW1 AND DW 2 to defraud to Karan. DW 1 had taken debts from DW 2 for some

reasons. DW 2 wanted the money back and so asked DW 1 to repay it soon. Karan had given

DW 1 the authority and permission to transfer money to his account in case of emergency

period51. Therefore the transactions regarding the transfer of money were not illegal nor were the

access unauthorized. The transactions were done with a bona fide intention of repaying money to

DW 2. There was no ill intention in mind of DW 1 or DW 2. The use of the information and

data by the accused is the most important circumstance to determine mens-rea / guilty mind.

There is a lack of criminal intent in the following case which can be inferred from the above

circumstances. There was a fiduciary relationship between DW 1 and Karan. Therefore Karan

shared his personal information with DW 1. Hence there arises no question of any offence u/s 66

and 66C of ITA.

51 Moot proposition page 3 point 15.



PRAYER FOR RELIEF

Wherefore in the light of the facts of the case, arguments advanced and authorities cited,

Counsels for the Defence humbly pray and implore before this Hon’ble Court of Sessions:-

That it may be pleased to Acquit(u/s 235 of the CrPC):

1. Manohar and Rahul for the charge of murder of Karan u/s 302 of BPC.

2. Manohar and Rahul for charge of forgery with common intention of Dr. Choudhary’s

prescription u/s 465 0f BPC.

3. Manohar and Rahul for the charge of criminal conspiracy u/s 120B of BPC.

4. Rahul for the charge of murder of Karan u/s 109 of BPC.

5. Manohar and Rahul for the charge of altering with account of Karan illegally and for

Identity theft u/s 66 and 66C of IT Act.

The Court may make any other such order as it may deem fit in terms of justice, equity and good

conscience.

And for this act of kindness the Defence shall as duty bound ever humbly pray.

Respectfully Submitted

Place: Durg, Xanadu S/d______________

Date: 18th September 2015 Counsel for Defence

TEAM CODE- TAW 6 SURANA & SURANA NATIONAL .... I. Vibhute, P.S.A. Pillai’s Criminal Law, 12th Ed. 20. Prof. S.N. Mishra, Indian Penal Code, 13th Ed. 8 SURANA & SURANA NATIONAL TRIAL

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