ISSUE-II

WHETHER AWANISH IS GUILTY OF MURDER?

It is humbly contended that the accused is guilty for committing the
offence of murder under Sec 302, IPC. Sec 302 prescribes the punishment
for committing murder. In order to bring a successful conviction under
this charge, however, it is pertinent to refer to Sec 300, IPC
which elucidates the essentials of murder. A person is guilty of murder if
he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes
such bodily injury,
which in the ordinary course of nature results into death or commits an
act so dangerous that
it must, in all probability cause death of that person31. The Prosecution
humbly contends that
both, the actus reus [2.1] and the mens rea [2.2] of the crime are
established in the instant
matter, negating any claims of private defence [2.3].
2.1 ACTUS REUS OF MURDER IS PROVEN
Actus reus is any wrongful act32. Thus, in a case of murder, actus reus
would be the physical
conduct of the accused that causes death of the victim. In the instant case,
the actus reus is
established by way of witness statements [A], forensic report [B] and
ballistic evidence [C].
A. Witness Statements
Bearing in mind that it is not for the prosecution to meet any and every
hypothesis suggested
by the accused, howsoever extravagant and fanciful it might be,33 it is
humbly submitted
31 Sec 300, IPC
32 Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006)
33 State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840
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before this Hon’ble Court that the circumstantial evidence in the instant
matter shows that
within all human probability, the act must have been done by the
accused.34
On the night of 31st December, 2013, 4 well dressed men breached the
high-stakes Octavious
vault of Aurora’s Montecito hotel and casino, post 11 p.m. According to
the confessional
statement of PW 2, at around 11.30-12.00 p.m., the accused shot Brij
Gopal (hereinafter
referred to as the ‘victim’/‘deceased’) in the head with his special edition
Smith and Wesson
custom engraved model 60, .38 revolver35, reaffirmed by DW 2’s
statement, who heard the
gunshot, alongwith DW 3’s oral testimony, who saw the accused standing
over the body.
In a case where murder was caused by gunshot, the witnesses did not
actually see the accused
shooting but saw him lowering the gun right after they heard the gun-
shot, their evidence was
held to be as good as that of eye witnesses and conviction was upheld.36
B. Forensics
The post mortem report becomes important in cases where the cause of
death is to be
established and is a matter of controversy.37 Moreover, it is not possible
for the Prosecution
in to explain each and every injury suffered by the witnesses. 38
However, for the sake of
convenience, the Prosecution feels obliged to assist this Hon’ble Court in
understanding the
intricacies of the post mortem report.

34 Bakshish Singh v State of

Punjab, AIR 1971 SC 2016
35 Exhibit 1, Case Details, p. 2
36 Md. Badaruddin v. State of Assam, 1989 Cr LJ 1876 (Gau)
37 Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883
38 Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC
2461
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i) Size of Wounds
The entry wound in this case is a 15 mm round-shaped one, while the exit
wound is a highly
irregular starry shaped wound 33 mm in size. This difference in size and
appearance is
because when a bullet makes an entry into the human body, it first indents
and stretches into
the skin and subsequently, depending upon the energy, effects penetration
into the soft tissues
and/or bones and comes out, causing an exit wound. After entry of the
bullet, the skin
partially returns to its original position and therefore, the size of the entry
wound may be
smaller than the size of the bullet.39

When a projectile transverses the skull and emerges, the aperture in the
bone differs in
relation to the outer and inner tables; the defect is larger in the direction
in which the bullet
travels. 40 An entrance hole bevels inward and therefore, the entrance is
usually clean cut and
the defect on the inner surface of the bone is larger than the outer surface.
An exit hole on the
skull is bevelled outward and is larger on the outer than on the inner
surface of the
bone,41consistent with the autopsy report in the instant matter, keeping in
mind that the
gunshot wound perforated the frontalis of the deceased, causing instant
death.42
ii) Appearance of the Wounds
The autopsy report by Dr Trehan indicates the presence of a wide zone of
powder soot and
seared blackened skin around the entrance wound. 43 The
blackening/smudging is due smoke
produced buy combustion of gun-powder, coupled with a small portion of
carbonaceous
39 Parikh,CK, Textbook of
Medical Jurisprudence, Forensic Medicine and Toxicology, p. 4.42 (6th
ed 1999)
40 Ibid, p. 4,43
41 Ibid, p. 4.50
42 Annexure 4, Case Details, p. 8
43 ibid
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matter .Even ‘smokeless’ powder produces a small amount of smoke
which may mark objects
at close range.44 Presence of blackening on wounds is thus consistent
with firing from a very
close range.45
Scorching (or burning/charring) is the discolouration of skin resulting
from burning of the
flame or hot gases that issue from a firearm. 46The presence of
scorching/charring is a clear
indication that the fatal shots were fired at the deceased from a very close
range.47
The Prosecution humbly contends that the autopsy report merely
demarcates an upper limit of
the proximity of the firearm with the deceased, with a distance of not
more than 15 ft48
between the two. This should not, however in any manner, be construed
to mean that the
weapon could not have been placed at a lesser distance.
The primary requirement of pleading the defence of accident is that the
act must be done with
proper care and caution.49 Thus, at a ‘close range’ ,the chances of any
‘accident’50are ruled
out, given that the accused is a retired Army officer, who, by his own
account, has a
considerable experience in handling weapons and killing men. In fact ,
such a short distance
would indicate the intention to kill.
C. Ballistics
44 Gaur, KD Firearms ,Forensic
Ballistics, Forensic Chemistry and Criminal Jurisprudence, p. 71 (2nd ed
1989)
45 Badshah Singh v State, AIR 1958 All 677
46 Supra n 36, p. 70
47 Nath Singh v State of UP, 1980 SCC (Cr) 968
48 Annexure 8, Case Details, p.13
49 Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790
50 Sec 80, IPC
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As per the Forensic Report,51 and the Panchanama52 , 4 Hornady XTP .
38 caliber bullets were
recovered from Aurora’s deck. The grooves on one bullet matched the
Smith and Wesson
custom engraved model 60 .38 revolver, owned by the accused.
In cases where injuries are caused by fire arms, the opinion of the ballistic
expert is of a
considerable importance53 and is sufficient to prove the guilt of the
accused.54 When the
direct evidence is well corroborated by the circumstantial evidence and
conforms to the
probabilities, there is no reason why it should not be accepted.55
So far as the question of the 4th bullet is concerned, it is well know that
in case of tandem
bullets, the first bullet fails to leave the barrel and is ejected by the
subsequently fired bullet.
The bullets are thus ejected one after another,56 which is what occurred
when DW 4 fired his
standard issue Glock .38 handgun57, considering that the .38 Live
Hornady cartridges
58recovered could have been used in the Glock as well.59
Therefore, contrary to the claims of the Defence, the presence of an extra
bullet should not be
attributed to any investigational ‘lapse’ on part of the police. On the other
hand, since 2
bullets were fired almost at once, DW 2’s testimony as to the ‘three
shots’ also corroborates
with the Prosecution’s version of events.
51 Annexure 6, Case Details, p. 12
52 Annexure 3, Case Details, p.7
53 Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601
54 Kalua v. State of UP, AIR 1958 SC 180
55 Field, C.D., Expert Evidence: Medical and Non-Medical, 4th Ed
(2007)
56 Supra, n. 41, p.4.42
57 Exhibit 2, Case Details, p. 2
58 Exhibit 3, Case Details, p.2
59 Annexure 6, Case Details, p. 12
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Arguendo, any lapse on part of the investigation agency would not be
fatal to the case.60
Absence of blood at the spot where the eye-witness saw the accused
attacking the deceased
and which was sufficiently explained did not create a doubt in the
prosecution story. 61Slight
variation between ocular evidence and medical evidence would not be a
ground for
dismissing the case.62
2.2 MENS REA OF MURDER IS ESTABLISHED
Mens rea is considered as guilty intention63, which is proved or inferred
from the acts of the
accused64. It is submitted that the intention to kill is established [A] in
light of clear-cut
motive of the accused [B]. Arguendo, absence of motive would not be a
sufficient ground to
dismiss the case [C].
A. The Accused had intention to kill
It is presumed that every sane person intends the result that his action
normally produces and
if a person hits another on a vulnerable part of the body, and death occurs
as a result, the
intention of the accused can be no other than to take the life of the victim
and the offence
committed amounts to murder.65 Moreover, the intention to kill is not
required in every case,
mere knowledge that natural and probable consequences of an act would
be death will suffice
for a conviction under s. 302 of IPC. 66
60 Amar Malla v State of Tripura,
AIR 2002 SC 3052, State of UP v Jagdeo , AIR 2003 SC 660
61 Joginder Singh v State of HP, (1995) 1 Cr LJ 124
62 Ambalal v State of Rajasthan, 2003 Cr LJ 115; Sudhin Chandra
Barman v. State of WB Cr LJ 2006 Cal 4656
63 Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR
1982 PH 1, 4
64 State of Maharashtra v Meyer Hans George, AIR 1965 SC 722
65 (1951) 3 Pepsu LR 635
66 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
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The intention to kill can be inferred from the murder and nature of the
injuries caused to the
victim.67 Causing a serious injury on a vital part of the body of the
deceased with a dangerous
weapon must necessarily lead to the inference that the accused intended
to cause death or
bodily injury sufficient to cause death of the victim, and it answers to
section 300 and is
murder.68Given that the accused shot the victim on the head, a vital part
of the body, it is
logical to conclude that he intended to cause the death of the victim.
B. The Accused had motive to kill
Sec 8, Evidence Act stipulates that any fact is relevant which shows or
constitutes motive or
preparation for any fact in issue or relevant fact. Thus, previous threats or
altercations
between parties are admitted to show motive.69 It is further pertinent to
note that if there is
motive in doing an act, then the adequacy of that motive is not in all cases
necessary. Heinous
offences have been committed for very slight motive.70
As already established in Issue I, the accused was an active participant, or
rather, the
instigator of the dacoity committed on Aurora. PW 2’s confession clearly
highlight’s the
accused’s need to silence the victim in order to hide his role in the entire
operation and hence,
he had the requisite motive to kill the victim.
C. Arguendo, Absence of motive is irrelevant
Assuming for the sake of argument that the accused had no motive, it is
humbly contended
that absence of motive is no ground for dismissing the case. Motive is
immaterial so far as the
 67 Laxman v. State of Maharashtra,
AIR 1974 SC 1803
68 Md. Idrish v. State, 2004 Cr LJ 1724 (Raj); Md. Sharif And Anr. v.
Rex, AIR 1950 All 380; Badri v. State of U.P., AIR 19953 All 189; Dibia
v. State of U.P., AIR 1953 All 373, State of Maharashtra v. Bhairu Sattu
Berad, AIR 1956 Bom 609
69 Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State
of WB, AIR 1958 Cal 482
70 State v Dinakar Bandu (1969) 72 Bom LR 905
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offence is concerned, and need not be established71as the mere existence
of motive is by
itself, not an incriminating circumstance and cannot take the place of a
proof72.

Therefore, absence of proof of motive, does not break the link in the
chain of circumstances
connecting the accused with the crime, nor militates against the
prosecution case and is not
fatal as a matter of law .73 When the circumstantial evidence on record is
sufficient to prove
beyond any doubt to prove that it was the accused and no one else, who
intentionally caused
the death of the accused then, motive of the crime need not be proved,74
as in the current
case.
2.3 THE ACCUSED CANNOT AVAIL RIGHT OF PRIVATE
DEFENCE
In the given context, the accused claims to avail the right of private
defence as per Sec 96 to
105, IPC which may extend to causing death for the purpose of defending
the body or
property of another person. However, one of the foremost principles to be
kept in mind is that
there must be an imminent danger giving the signal to act in exercise of
the right of private
defence75 i.e. the necessity must be a present necessity, whether real or
apparent76 and thus,
private defence does not include the right to launch an offensive attack.77
Furthermore, the
71 Ratanlal and Dhirajlal, The
Indian Penal Code, 33rd Ed. (2011)
72 State of Punjab v Sucha Singh, AIR 2003 SC 1471
73 Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
74 State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
75 Hari Singh v State of Rajasthan, AIR 1997 SC 1505
76 Bhanwar Singh v State of MP, (2008) 16 SCC 657
77 Shajahan v State of Kerala, (2007) 12 SCC 96
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right of private defence is available only till the apprehension to the
body78 or
property79exists.
From the statements of all the witnesses, it is evident that the deceased
had not actively either
assisted PW 2 in taking a hostage, nor had he presented any immediate
danger to any other
person on board. It is amply clear from the statements of DW 3 and DW 4
that the accused
shot the victim after DW 4 had already apprehended PW 2 i.e. any
immediate danger to DW
3 as a hostage had already subsided.
Furthermore, instead of shooting him on the head, the accused could have
fired a warning
shot, or at the very least, fired at some other part of the body, given that
in exercising the
right to private defence, one of the most important caveats is that no more
harm than is
necessary should be caused.80 It is thus apparent that the accused
exceeded his right of private
defence and any defence of ‘necessity’81 also cannot be claimed by him
as an act of necessity
must be done with a bona fide intent and without any unnecessary force
or violence82.
Therefore, it is humbly submitted before this Hon’ble Court that the
accused is guilty for the
offence of murder, given that the requisite mens rea and actus reus is
established from the
facts of the case, beyond a reasonable doubt.

78 Sec 102, IPC

79 Sec 103 and 105, IPC
80 State of Haryana v Mewa Singh, AIR 1997 SC 1407
81 Sec 81, IPC
82 Gopal Naidu v. Emperor AIR 1923 Mad 523 ISSUE RAISED:
WHETHER THE WRIT PETITION FILED BY THE APPELLANTS IS
MAINTAINABLE OR NOT
The writ petition filed by the appellants is indeed not maintainable in the
Supreme Court of Indonia.
The constitution of Indonia under part-3 provides for certain fundamental
rights to its citizens that are present to ensure the protection of the
Indonian citizens against the absolutism of the state. These rights are
applied irrespective of race, place of birth, religion, caste, creed or
gender. However the Fundamental Rights are not absolute and are subject
to reasonable restrictions as necessary for the protection of public
interest. Article 19(2) provides for grounds of such restrictions that can be
imposed by the state on a citizen’s fundamental rights. These include
sovereignty and integrity of the state, security of the state along with
public order that has also been mentioned under paragraph 1, line number
8 of the moot proposition. The counsel would like to focus on the ground
of public order opposing the writ petition filed by the appellants stating
that their fundamental right to research has been curtailed. It was held in
the case of Central Prison v. Ram Manohar Lohia that restrictions can
be imposed to preserve public order or “public peace, safety and
tranquility”.
According to Journal of Assisted Reproduction and Genetics published
by the United States of America National Library of medicine- even the
birth of Dolly, which was the first genetically cloned mammal, was
merely a chance event. It further states that “it has been commonly
accepted and broadly emphasized that the production of cloned human
individuals must be banned”. The same journal goes to the extent of
stating that human cloning necessarily infringes notions of human
dignity.
Relating this to the issue of public order, a child is the result of two
factors i.e. biological factors and the cultural influence. Cultural influence
upon an individual takes place due to the various societal interactions that
the child encounters in his lifetime which teaches him about what is
morally good and what is not. However, if clones are made and if there is
any malicious intent of its creator the clone may be used for creating
disruptions in the society. One big drawback to cloning humans is its
ability to divide people, where clones who are not treated as human
beings can lead to social unrest and divide.
Thus, cloning a human which the appellant has been doing is opposed to
public policy and reasonable restrictions can be placed by the state hence,
not violating any of his fundamental rights.