BALAJI LAW COLLEGE’S FIRST INTERNAL MOOT COURT ROUND

BALAJI LAW COLLEGE’S

FIRST INTERNAL MOOT COURT ROUND

BEFORE THE HON’BLE HIGH COURT OF BOMAY

IN THE MATTER OF:

AMAR APPELLANT

STATE OF MAHARASTRA RESPONDENT

MEMORIAL ON BEHALF OF PETITIONER

COUNSEL FOR PETITIONER

MEMORIAL ON BEHALF OF PETITIONER 1

 BALAJI LAW COLLEGE’S FIRST INTERNAL MOOT COURT ROUND

CONTENTS PAGE NUMBER

LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION 5
STATEMENT OF FACTS 6
ISSUES RAISED 9
SUMMARY OF ARGUMENTS 10
ARGUMENTS ADVANCED 11
PRAYER 15
TABLE OF CONTENTS

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LIST OF ABBREVIATIONS

AIR All India Reporter

Anr Another
CrPC The Code of Criminal Procedure
Hon’ble Honorable
IPC Indian Penal Code
Ors Others
SC Supreme Court
HC High Court
S Section
r/w Read with
SCR Supreme Court Reporters
SCC Supreme Court Cases
Sec Section
u/s Under Section
& and
V. Versus

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INDEX OF AUTHORITIES:

CASES REFERRED

1. Nitin Omprakash Agrawal V Rekha Agrawal

2. Bhaurao Lokhande v. State of Maharashtra and another
3. Rathnama V. Sujathamma 2019
4. Sarla Mudgal & Ors. v. Union of India.
5. Hari Singh vs. Sukhbir Singh & Others, reported in (1988) 4 SCC 551
6. Sri Tankeswar Sarma V. the State of Assam and Anr. [Crl.A./64/2020]
7. S Nagalingam v Sivagami
8. Mohindar Singh vs. State of Punjab, AIR 1960
9. Kanbi Nagji Kala vs. State
10. Manjeet Singh v. State of Himachal Pradesh
11. Vadde Rama Rao v. State of Andhra Pradesh
12. Laxmi Devi vs Satya Naravan and Ors
13. Smt. Raj Rani v. State (Delhi Administration)
14. Girdhar Shankar Tawade v. State of Maharashtra

STATUTES REFERRED:

 Indian Penal Code

 Code of Criminal Procedure
 Hindu Marriage Act

BOOKS REFERRED

 Hindu Law – Mulla

 Penal Law of India by Dr. Hari Singh Gour’s

LEGAL DATABASES

 www.scconline.com
 https://www.manupatrafast.com/
 https://indiankanoon.org

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STATEMENT OF JURISDICTION

The Appellant herein have approached the Bombay High Court under Section 374(2) of The
Code of Criminal Procedure. The Memorandum sets forth the facts, laws and the corresponding
arguments on which the claims are based in the instant case.

Section 374(2) in The Code of Criminal Procedure, 1973

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven
years 2 has been passed against him or against any other person convicted at the same trial], may
appeal to the High Court.1

1
Section 374(2) in The Code Of Criminal Procedure, 1973

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STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble High Court, fact of the case is
summarized below:

1. Disha Gupta, a 22-year-old from Delhi relocated to Mumbai in order to pursue her acting
career. Since her family opposed the relocation, she did not have any financial support or
friends in this new space. She gave several auditions and was turned down for each,
because of which she attempted to kill herself twice but failed both the times.
2. In September 2018, Disha Gupta got a chance to converse with Amar Sharma, a
renowned film director who was also known as the ‘career builder’ for young actresses at
a Bollywood party she attended with the hopes of being able to network for her
betterment. They exchanged their numbers and were in touch over a span of few months
before Disha confessed her love for Amar and moved in with him. Amar was in a
relationship with Disha after three failed marriages.
3. The Media Agencies posted Disha and Amar, and began circulating on social media
about Disha using Amar to get into the film industry. The constant media scrutiny and
trolling on social media made Disha vulnerable. Her parents and friends too boycotted
her, citing embarrassment over her actions.
4. Being affected by all this, she pleaded Amar to cast her in his upcoming dream project
soon so that she could showcase her talent. However, Amar denied to do so since had
already casted the actors and invested huge amount in his dream project.
5. Disha’s constant pleading along with her negative publicity in the industry adversely
affected Amar to such an extent that he could not focus on his project which gave a huge
career set back to him. The fights between the two increased day by day.
6. Three months down the line, Amar demanded Disha to leave his house. He claimed that
girls like her come begging to him every day and he can get anyone he wishes. Disha
begged him to let her stay, promising that she would not plead again.
7. She told Amar that she was not in a fit state of mind and would like to seek medical help
for the same. Amar immediately dismissed her idea, telling her that if the Media
Agencies found out about her psychiatrist visits, they would label her crazy and she could

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effectively bid goodbye to her career then. He advised her to rest at home and meditate
instead.
8. The relationship between the two continued to worsen and Disha had socially withdrawn,
confining herself to the house, whereas Amar was still socially active and was seen
cozying up to young women at parties.
9. In November 2019, a picture of him and a young debutante actress, holidaying at a
secluded island in the Maldives, went viral on social media and got the rumor mills
churning about his separation with Disha. A week later, he released a statement,
clarifying that ‘all is well’ between them and that they were one in their heart and soul.
10. On 5th February 2020, at around 2 am, a call was received at Shivajinagar Police station
stating that a woman with 75% burn injuries was brought to their hospital. The police
rushed to the hospital where the victim was identified as Disha.
11. After a week, Disha gained her consciousness and she gave a statement to the Police.
According to her, on that fateful night, Amar returned home from a party, visibly
inebriated. Upon unlocking the door, he saw Disha standing near the stove, holding a can
of a blue colored liquid. He immediately realized that the liquid was kerosene and he
rushed towards her, fuming with rage. He called her crazy and said that she had ruined all
the fun in his life. He attempted to kill her by pouring kerosene on her exclaiming that if
she was so firm on ending her life, he would make things easier for her. Immediately
after Amar threw kerosene on her, she was soon engulfed in flames as her dress caught
fire from the stove right behind her.
12. She also stated that over the past year, he denied her psychiatric help and mentally
manipulated her while cheating on her with several other girls.
13. Disha went on to state that in October of 2019, both of them had gotten married at a
small temple near Mumbai and Amar had also gifted her a flat in Bandra as her ‘wedding
gift’. However, Amar was adamant that they do not reveal the factum of their marriage to
anyone as it would affect their careers.
14. It was only last month when she found out that Amar’s divorce proceedings with his
previous wife were still pending before the court. Based on her statement, the Police filed
charges under Section 307 and Section 498A of the Indian Penal Code, 1860 against
Amar.

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15. During the course of the trial at Sessions Court, Mumbai, Amar denied all charges of
cruelty and claimed that he could not be held liable under Section 498A as he was not the
victim’s ‘husband’ as contemplated under the section. He stated that there was no valid
marriage between him and Disha. The fact that his previous divorce proceedings were
sub judice was never hidden and was reported in a number of newspapers as well. His act
of merely putting sindoor and Mangal sutra on Disha at the temple, upon her persistence,
could not be construed as ‘marriage’ as it was only done for Disha’s happiness.
16. With regards to the charge of attempt to murder, Amar claimed that when he entered the
room on that night and saw Disha ending her life yet again, he was in a state of utter
shock. He admitted that in a fit of uncontrollable rage, he did pour the kerosene on her
but never intended to kill her. He was unaware that the stove behind was lit which
actually led to Disha’s clothes accidentally catching fire and before he could react, she
was completely engulfed in flames.
17. The Sessions Court rejected Amar’s plea that the incident was a mere unfortunate
accident and convicted him U/s 307 of IPC for attempting to murder Disha. The court
also held that a person who enters into a relationship in the nature of marriage cannot be
allowed to take the plea that he cannot be held liable U/s 498A of IPC as there was no
valid marriage; thereby convicting him U/s 498A of IPC for subjecting her to cruelty over
the course of their relationship. He was sentenced to 10 years rigorous imprisonment.
Aggrieved by the conviction, Amar appealed against the order of the Sessions Court
before the Hon’ble High Court of Bombay.

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ISSUES RAISED:
The petitioner very respectfully puts forth before the Hon’ble High Court the following
queries:

ISSUE I:
Whether Amar can be held liable U/s 498 A of IPC?

ISSUE II:
Whether Amar can be held liable U/s 307 of IPC?

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SUMMARY OF ARGUMENTS
1. Whether Amar can be held liable u/s 498A of IPC?
The counsel humbly puts before the Hon’ble High Court of Bombay that Amar
cannot be held liable because the appellant did not commit any offence under 498A.
There was an absence of the essential of ‘marriage’ between their relationship. A
mere act of putting sindoor and Mangal sutra at a temple does not validate a Hindu
marriage.

2. Whether Amar can be held liable u/s 307 of IPC?

The counsel humbly puts before the Hon’ble High Court of Bombay that Amar
cannot be liable u/s 307 of IPC. There was an absence of mens rea, which means that
Amar did not intend to kill Disha. This could be understood by the fact that there was
an absence of preparation and motive.

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ARGUMENTS ADVANCED

ISSUE 1: Whether Amar can be held liable u/s 498A of IPC?

It is humbly submitted before the Hon’ble High Court of Bombay that Amar cannot be held
liable because the appellant did not commit any offence under 498A, on the basis that Disha and
Amar did not have a valid marriage.

1.1 Marriage Validity:

The counsel humbly submits before the High Court of Bombay that, the marriage between
Amar and Disha cannot be constituted as valid on the grounds that simply putting sindoor
and Mangal sutra at a temple doesn’t constitute a valid marriage. This was seen in the case of
Nitin Omprakash Agrawal V Rekha Agrawal 2where the bench led by Justice BP
Dharmadhikari said “Unless the marriage is celebrated or performed with proper ceremonies
and in due form, it cannot be said to be solemnized”. It also stated that ‘relationship coupled
with sindoor and mangalsutra don’t constitute a valid marriage,’. In another case of S
Nagalingam v Sivagami case, Saptapadi was held to be an essential ceremony for a valid
marriage. It is clearly seen that there was no such ceremony that was performed between the
two individuals of conversation here, which again questions the validity of the supposed
marriage.
Further, in the case of Bhaurao Lokhande v. State of Maharashtra and another, the Hon’ble
Apex court has discussed in length the meaning of the term ‘solemnize’. The court referred
the Oxford short dictionary and discussed the dictionary meaning of the term wherein it is
stated that in connection with a marriage, ‘to celebrate the marriage with proper ceremonies
and in due form. Therefore, it is clear that unless the marriage is performed using proper
ceremonies and in due form, it cannot be said to be solemnized. Thus, non-performance of
the ceremonies prescribed
The case of Rathnama V. Sujathamma 2019 stated how performance of rituals is vital for
proving a Hindu marriage. The court held that a Hindu marriage is proved by establishing
that the necessary ceremonies have been performed and for a marriage to be valid, it needs to
be in accordance with the provisions of Section 7 of the Hindu Marriage Act, 1955

2
(Nitin Omprakash V. Rekha Agrawal, 2017),

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It is an essential for marriages under the Hindu Marriage Act to be monogamous in nature for
them to be deemed as valid, however, in this case, Amar could not be labelled as Disha’s
husband since his previous divorce proceedings were still pending before the court. The
Hindu Marriage Act declares subsequent marriage between two Hindus is void if their
partner is living and they have not divorced at that time. This issue was scrutinized by the
Supreme Court at length in the landmark case of Sarla Mudgal & Ors. v. Union of India.
1.2 Cruelty:

The counsel humbly submits before the HC of Bombay that, Amar cannot be held liable under
498A, since there was no marriage between them in itself, which creates no scope of ‘Husband
or relative of husband of a woman subjecting her to cruelty.’ Considering the section’s scope
being limited to a ‘husband’ subjecting a woman to cruelty, the relationship between Disha and
Amar was not of husband and wife.

Amar’s conduct towards Disha has never been cruel in nature, he has been considerate of her.
When Disha’s friends and family boycotted her, Amar was supportive of her, allowed her to
move in with him. Keeping in mind how important Disha’s career was for her, he even advised
her to stay at home and meditate, in order to help her with her state of mind, because if she
visited the psychiatrist, it would hamper her image in the Bollywood industry and would have
destroyed her career, adding onto her frustration caused by previous failures.

In 5 Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559, this Court held that
while considering the case of cruelty in the context to the provisions of Section 498A I.P.C., the
court must examine that allegations/accusations must be of a very grave nature and should be
proved beyond reasonable doubt. And here there are no allegations that have been proved
beyond reasonable doubt.

In 6 Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078; this Court held that
cruelty has to be understood having a specific statutory meaning provided in Section 498A I.P.C.
and there should be a case of continuous state of affairs of torture by one to another. As noticed
in the given case there was no continuous cruelty done by appellant. Instead, he was mentally
tortured with their continuous fights.

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ISSUE II: Whether Amar can be held liable U/s 307 of IPC?

It is humbly submitted before the Hon’ble High Court of Bombay that Amar cannot be held
liable because the appellant did not commit any offence under 307 of IPC, on the basis that there
was no intent to murder to her.

Criminal act consists of 4 stages in order to commit a crime which are:

a. Intention or knowledge to commit offence

b. Preparation to commit crime

c. An attempt to commit crime

d. Completion of committing crime

Also, the essentials to commit crime are actus reus and mens rea. In the given scenario Amar has
stated that he never had any intention to kill Disha. There wasn’t any preparation on his part to
murder her, he did not bring the can of kerosene nor did any other preparations that could prove
that he had an intention to murder Disha. That implies the essential element to commit crime
were not present in the given case.

2.1 Absence of Intent: The counsel humbly puts forth that in this case, Amar had no
intention of murdering Disha. If the case was otherwise, Amar had the opportunity
considering the fact that she lived with him. Along with that, Amar would
immediately light her up after pouring the kerosene, if he wanted to murder her.
In the case of Hari Singh vs. Sukhbir Singh & Others, reported in (1988) 4 SCC 551,
the Supreme Court held that while examining whether a case of commission of
offence under Section 307 IPC, the Court is required to see, whether the act,
irrespective of its result, was done with the intention or knowledge and under
circumstances mentioned in that section. The intention or knowledge of the accused
must be such as is necessary to constitute murder. Without this ingredient being
established, there can be no offence of 'attempt to murder.

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2.2 Absence of preparation: Looking at the facts, it can clearly be stated that there was an
absence of preparation as well. Preparation being a vital element to constitute a
murder is missing in this case. Amar had no part to play in the presence of the
kerosene or the stove being lit, the two elements that caused the unfortunate event.

2.3 Absence of knowledge: It is to be noted along with an absence of intent, there was an
absence of knowledge as well. It is clearly stated that Amar did not have the
knowledge of the stove being lit already. However, it is also be kept in mind that it is
obvious that simply pouring kerosene does not imply that the individual would be
harmed or burned, for the harm to be caused, there needs to an element of fire as well.
To convict a person for the attempt to murder under Section 307 IPC, it must be
proved that he has done some act with such intention or knowledge, that if by the act
done death would have been caused, he would have been guilty of murder. The
judgment was passed by The High Court of Gauhati in the case of Sri Tankeswar
Sarma V. the State of Assam and Anr. [Crl.A./64/2020] by Division Bench consisting
of Hon’ble Shri Justice Suman Shyam & Mir Alfaz Ali.

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PRAYER:

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS THAT
THE HON’BLE HIGH COURT BE PLEASED

1. To maintain the appeal u/s 374(2) of The Code of Criminal Procedure.

2. To decide that the appellant cannot be held liable u/s 498A of The Indian Penal Code

3. To reduce the sentence of imprisonment

AND/OR PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. AND FOR THIS ACT OF
KINDNESS, THE COUNSELS FOR THE RESPONDENT AS IN DUTY BOUND SHALL
EVER PRAY

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