INDIAN INSTITUTE OF LEGAL STUDIES HARIDEVI

MEMORIAL ON THE BEHALF OF RESPONDENT

BEFORE THE HON’BLE HIGH COURT OF HIMACHAL PRADESH

….FIR NO. 91/2019

In the matter of :

STATE OF HIMACHAL PRADESH

[Appellant]

Vs

JAGDISH AND OTHERS

[Respondent]

Jagdish ...Respondent No.1

Rajkumar …Respondent No.2

Murari ...Respondent No.3

 TABLE OF CONTENT

LIST OF ABBREVIATIONS…………………………………………………..

LIST OF AUTHORITIES…………………………………………………… a.

CASES………………………………………………………………….

b. CONSTITUTION AND STATUTE……………………………………

c. BOOKS AND ONLINE REFFERENCES……………………………..

d. WEBSITE………………………………………………………………

STATEMENT AND JUSRISDICTION………………………………………

STATEMENT OF FACTS…………………………………………………….

STATEMENTS OF ISSUES………………………………………………….

SUMMARY OF ARGUMENTS……………………………………………..

ARGUMENTS IN ADVANCE………………………………………………

PRAYER……………………………………………………………………..
 Abbreviations Explanation

Hon’ble Honourable

H.C High Court

& And

Ors Others

FIR First Information

report

Cr.P.C Code of Criminal

Procedure

IPC Indian Penal Code

u/s Under section

H.P Himachal Pradesh

Distt. District

H.C High Court

 TABLE OF AUTHORITIES
CASE LAWS
• Bal Krishna Das Agrawal v. Radha Devi, MANU/SC/0173/1989 : AIR 1989 SC.
• Mangal Ram & ors VS State of Rajasthan Feb 18,1999
•

STATUTE

1. The Indian Penal Code,1860 2.

Code of Criminal Procedure,1973.
3. The Indian evidence Act,1872

ONLINE REFERENCES

1. https://www.indiankanoon.com
2. https://www.sci.gov.in

BOOKS

Indian Penal Code, by Professor S.N Mishra.

Tandon’s Code of Criminal Procedure, by Professor Richa Mishra.

Principles of the law of Evidence by DR. Avtar Singh.

 STATEMENT OF JURISDICTION

The Hon’ble High Court of Himachal Pradesh has jurisdiction to hear the present matter

U/S 374 of the Code Of Criminal Procedure,1973. Against the order of acquittal of

the session court u/s 302 read with sec.34 of Indian Penal Code,1860
 STATEMENT OF FACTS

1. That the Respondent’s family residing in a Fatehpur Distt. Haripur, State of Him
Pradesh.
2. That there is four members namely, Mr. Rajkumar aged 52 years, his wife Bimla devi
aged 49, two sons, Jagdish, aged 26 years and younger son Murari, resides in
respondent’s family.
3. That the Respondent’s family used to work in a nearby agriculture farm.
4. That on 20th March 2015 Marriage of Jagdish and Radha was solemnized, which is
fixed by Rajkumar.
5. That after the marriage Radha stayed with her husband and her in-laws house.
6. That on dated 20th August 2019.missing report of Radha was filed by her husband and
1:00 PM. Statement also stated that, Radha is suffering from insanity for past few days.
7. That on the same day around 4:00 PM, mother of Jagdish Bimla devi saw the dead
body of Radha, floating on the water of well where she went to fetch water.
8. That the statement also stated that Radha was suffering from insanity from past few
days.
9. That the case was registered for investigation by S.H.O of Haripur Police Station.
10. That on dated 23rd August 2019 another information report was lodges by Radha’s
Uncle Shyam Sundar at Haripur Police Station, that among other things that Radha has
been murdered by Jagdish, Rajkumar and Murari. who used to torture her.
11. That the report also stated that the Jagdish neighbour Ram Singh had informed about
Radha’s Murder, and that Ram Singh and Hari Narayan among other local people.
12. That the Hari Narayan told the police that he came to know that Jagish hit Radha with

bamboo on her heard.

13. That on the basis of this information, F.I.R registered against the three accused

Jagdish, Rajkumar, Murari u/s 302 read with sec.34 vide FIR.NO. 91/2019.

14. That they were then arrested by the police and produced before court and were sent to

custody by the order of Magistrate on 25th August 2019.

15. That during Radha’s post-mortem report disclosed that lungs are voluminous, water

logged congested, a cut section semi digested food materials and full of water with

sand particles.one abrasion wound on right side of head.

16. That after completion of investigation, charge sheet was filed against all three accused

u/s 173[2] Cr.P.C. in the court. The trial took place in the court of additional session

Judge of district Haripur.

17. That after considering all the evidence on recorded facts submitted by the prosecution

and accused the court gave judgement on 10th September, 2022. As per the judgement“

The Court is of the view that the prosecution has miserably failed to prove its case

beyond reasonable doubt”.

 STATEMENT OF ISSUES

1. Whether the appeal is maintainable before the H.P High Court.

2. Whether the trial is heard Or judgment on the basis of expert report?

3. Whether the trial court was justifying in discharging the accused in the offence of

murder?
 SUMMARY OF ARGUMENTS

1. Whether the present appeal is maintainable before the H.P High Court?

a. The appeal is not maintainable

b. The post mortem report also justifies the decision of the Additional Session Court.

2. Whether the trial is erred or judgement on the basis of expert report.

a. Sustainability of the judgement.

b. Lack of evidence

c. No reasonable doubts.

d. Report of post mortem.

3. Whether the trial court was justifying in discharging the accused in the offence of

murder?

a. Justification of acquittal.

b. Appreciation of judgement.
 ARGUMENT ADVANCED

ISSUE NO.1. Whether the present appeal is maintainable before the Hon’ble High Court
of H.P?

a. The appeal is not maintainable as the current judgement is made on the merits and facts

present in the case. The prosecution has miserably failed to prove its case beyond the

reasonable doubts. As there was no evidence or eye witness present in the case.

b. The post mortem report also justifies the decision of the Additional Session Court. As

there was no sign of resistance or injury caused due to the struggle of victim against any

kind of force or attack caused by the respondents. And the death of victim is caused due to

drowning in the water of well.

Hence it is a false case made to destroy the reputation of Respondents and therefore the

appeal is not maintainable filed by the appellant is not maintainable and will amount to

cause of waste of precious time of the Hon’ble High Court of H.P.

CASE LAW

Mallikarjun Kodagali v. State of Karnataka

In this case, on December 30, 2009, the Parliament had amended Section 372 of the CrPC

so that it now allows the victim to file an appeal against any order passed by the Court, if

according to the victim, the accused was wrongly acquitted, or convicted less stringent, or

he/she feels that the compensation has been inadequate.

The legal representatives of Mallikarjun Kodagali had filed an appeal at the Karnataka

High Court on behalf of Mr. Kodagali who was deceased. The appeal referred to a

judgment by the High Court upholding a decision to acquit an MLA and others alleged to

have attacked Kodagali in Bagalkot. The High Court had dismissed the appeal as the

death of Kodagali made the appeal unmaintainable.

 ISSUES NO.2. Whether the trial is erred the judgement on the basis of expert
report.

No, the trial is erred, or the judgement is delivered on the basis of expert report. Because

there is no evidence about Radha’ s murder. Also there is no reasonable doubts about the

case. It is humbly submitted to the Hon’ble high Court that the judgement of the

Additional session judge is based on the experts report. The post- mortem of Radha clear

states that she was not attacked by any kind of way. And she died due to drowning in

water, the report clearly states that water had gone out of his lungs. Evidences given by

the prosecution before the court is not sufficient to satisfy the offence and in the absence

of any prima case against him, he is entitled to be discharged. There is also substantial

medical evidence. Also there is insufficient circumstantial evidence to connect towards

the guilty of the accused.

The general principle is that only those witnesses may appear before the Court who have

been well acquainted with the facts because every witness is a witness of facts. Also The

opinion of the third person is admissible as an expert’s opinion under the provisions. For

the purpose, “opinion” means ‘something more than gossip or hearsay.

Case law

1. In Bal Krishna Das Agrawal v. Radha Devi, MANU/SC/0173/1989 : AIR 1989 SC

1966; an ‘expert’ was defined as “a person who by his training and experience has

acquired the ability to express an opinion” but an ordinary witness does not possess

this quality.
 ISSUE.NO.3.Whether the trial court was justifying in discharging the accused

in the offence of murder

It is humbly submitted before the Hon’ble High Court that the acquittal order given

by trial court in favour of accused is justifiable. As the circumstances of case is not of

conclusive nature. And if there is a lack of evidence to prove accused as a guilty. The

ingredient given u/s 300 and 34 IPC are miss leading to discharge of the accused.

The judgement of acquittal of accused pronounced by trial Sesson court is

established on fair

trial.

Burden of proof: according to section 101 of the Indian Evidence Act, 1872 the

burden of proof lies on the person who asserts the facts, therefore, here the whole

burden lies on the prosecution to prove the case against the respondent which they

miserably failed.

Suspicion howsoever grave cannot take place of proof.

SC acquitted the accused in a murder case, the court said - the prosecution will have to

prove the intention to commit the crime. The Supreme Court, while acquitting the

accused in a 2008 murder case, said that it is necessary for the prosecution to In the

absence of eyewitnesses, he must prove the intention to commit the crime. The bench

said that if there are no witnesses in the case, the prosecution will have to prove the

intention to commit the crime. In direct matters intention does not play an important

role.
 Mens Rea commit the offence is estd.

Mens Rea is considered as a guilty intention. Which is proved or inferred from the

act of the accused. Where a person causes an injury on a vital part of the body, the

intention to kill can be attributed from that.

In that case there is no guilty intention proved by the prosecution also there is no

common intention.

In the present case appellant has to prove whether there is chain of circumstantial

evidence which leads to the guilt of the respondent without any doubt. The appellant

till now failed to do that . there was a lot of doubt in the case of the Appellant. It is

thereby humbly submitted before the Hon’ble High Court there is no clear evidence

of linking

Respondents as well as there was no reasonable amount of doubt in the conviction.

Therefore respondents should not be guilty of this crime.

CASE LAW

1. In Mangal Ram & ors VS State of Rajasthan Feb 18,1999 in the murder case the

learned Session Judge came to the conclusion that the accused were guilty of

murdering Umaram and causing heart to Brijlal. The learned Judge however found

there is no evidence sufficient for conviction of the accused person. That the intention

or knowledge of the accused must be such as necessary to constitute murder. In the

absence of intention or knowledge which is the necessary ingredient of the sec 302

I.P.C . there can be no offence of murder.

 PRAYER

wherefore, in the light of issue raised, Authorities cited and Argument advanced, the counsel

humbly pleads before your lordship to dismiss this appeal or to pass any other such order

which the court may deem fit in the light of justice, equity and good conscience to which

the counsel shall forever be duty bound to.

Place:

Date:

Submitted by the counsel