1ST C.L.

AGARWAL MEMORIAL MOOT COURT COMPETITION, 2017| RAFFLES UNIVERSITY

TEAM CODE: CL01R

1ST C.L. AGARWAL MEMORIAL MOOT COURT COMPETITION

4TH -5TH MARCH, 2017

BEFORE THE HON’BLE HIGH COURT OF RAJASTHAN

APPEAL UNDER SECTION 374 OF CODE OF CRIMINAL PROCEDURE, 1973

IN THE MATTERS OF:

RAJ KUMAR (APPELLANTS)

V.

STATE OF RAJASTHAN AND ORS. (RESPONDENTS)

ON SUBMISSIONS TO THE HON’BLE HIGH COURT OF RAJASTHAN

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENTS

MEMORIALS FOR RESPONDENTS – STATE OF RAJASTHAN AND ORS.

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{Table of Contents}

TABLE OF CONTENTS

{TABLE OF CONTENTS}

LIST OF ABBREVIATIONS…………………………………………………………………..4-5

INDEX OF AUTHORITIES……………………………………………………………….…..6-8

STATEMENT OF JURISDICTION………………………………………………………………9

SYNOPSIS OF FACTS……………..………………………………………………………10-11

ARGUMENTS PRESENTED……………………………………………………………...........12

SUMMARY OF PLEADINGS……………………………………………………………....13-15

ARGUMENTS ADVANCED………………………………………………..........................16-30

ISSUE: I: WHETHER THE APPEAL FILED BY Mr. RAJ KUMAR AND MALINI CAN BE
HEARD TOGETHER BY THE HON’BLE HIGH COURT OF RAJASTHAN?........................17-18

ISSUE: II: WHETHER THE STATEMENT GIVEN BY MALINI IN THE IN THE PRESENCE
OF DOCTORS AND POLICE PERSONNEL COMES WITHIN THE PURVIEW OF DYING
DECLARATION UNDER SECTION 32 OF THE INDIAN EVIDENCE ACT,
1872?...................................................................................................................................19-22

A. THE PROBABLITY OF DEATH WAS VERY HIGH WHEN SHE GAVE HER STATEMENT
IN PRESENCE OF HER FRIEND…………………………………………………..19-20
B. WHEN TWO DYING DECLARATION ARE THERE THE FIRST DECLARATION IS
ADMISSIBLE…………………………………………………………………………………...…20-21
2.1 DYING DECLARATION RECORDED BY DOCTOR……………………………..…………21
2.2 DYING DECLARATION RECORDED BY POLICE PERSONNEL………………..………..21

C. THE DYING DECLARATION MADE IN THE PRESENCE OF DOCTORS AND POLICE

PERSONNEL IS NOT RELEVANT………………………………………………..…………………21-22

ISSUE: III: WHETHER THE ACT COMMITTED BY Mr. RAJ KUMAR COMES WITHIN
THE PURVIEW OF SECTION 302, 304B AND 498A OF INDIAN PENAL CODE, 1860?.....23-26

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A. ACT COMMITTED BY Mr. RAJ KUMAR COMES WITHIN THE PURVIEW OF SECTION
302 OF IPC……………………………………………………………………………….23-24
1.1 CIRCUMSTANTIAL EVIDENCE…………………………………………………………...23-24

B. THE ESSENTIALS OF SECTION 304B NOT FOUND………………………………………..24-25

2.1 PRESUMPTION OF DOWRY DEATH (S. 113B OF IEA)……………………………...24-25

C. Mr. RAJ KUMAR IS LIABLE FOR CRUELTY UNDER SECTION 498A OF IPC…..…25-26

ISSUE: IV: WHETHER THE GOLD ORNAMENTS COMES WITHIN THE PURVIEW OF
STRIDHAN UNDER SECTION 14 OF HINDU SUCCESSION ACT, 1956? …………………27-30

A. WOMAN HAS EXCLUSIVE RIGHT OVER THE STRIDHAN…………………………… .27-28

1.1POWER OF A HINDU FEMALE OVER HER STRIDHAN……………………………...27-28
B. HUSBAND HAS NO RIGHT OVER THE PROPERTY OF WOMAN……………….………28-29
2.1 PENAL LIABILITIES…………………………………………………………………..……28-29

C. STRIDHAN CAN ONLY BE USED BY A WOMAN……………………………………….…29-30

PRAYER………………………………………………………………………………………31

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{List of Abbreviations}

LIST OF ABBREVATIONS

{LIST OF ABBREVIATIONS}

AC………………………………………………………………………….…Appeal Chamber

AIR……………………………………………………………………….….All India Reporter

All…………………………………………………………………………………....Allahabad

All LJ…………………………………………………………………...Allahabad Law Journal

AP…………………………………………………………………………...…Andhra Pradesh

Art………………………………………………………………………………………..Article

Bom…………………………………………………………………………………….Bombay

Cal………………………………………………………………………………..…….Calcutta

CJI………………………………………………………………………..Chief Justice of India

Cr.LJ…………………………………………………………………..…Criminal Law Journal

Cr.PC………………………………………………………..…….Code of Criminal Procedure

D.B……………………………………………………………………………..Division Bench

Del………………………………………………………………………………………...Delhi

FC……………………………………………………………………………...…Federal Court

HC…………………………………………………………………………………..High Court

HP……………………………………………………………………...…….Himachal Pradesh

IEA………………………………………………………………………..Indian Evidence Act

I.O……………………………………………………………………...…Investigating Officer

IPC…………………………………………………………………………..Indian Penal Code

J…………………………………………………………………………………………Justice

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{List of Abbreviations}
Jhar………………………………………………………………………………..….Jharkhand

Kar……………………………………………………………………………………Karnataka

Mad………………………………..……………………………………………………Madras

Ori………………………………………………………………………………………..Orissa

¶……………………………………………………………………………………....Paragraph

PC……………………………………………………………………………...…Privy Council

Punj………………………………………………………………………………………Punjab

Raj………………………………………………………………………………….…Rajasthan

Sec………………………………………………………………………………………Section

SC……………………………………………………………………………….Supreme Court

SCC………………………………………………………………………Supreme Court Cases

SCR…………………………………………………………………….Supreme Court Reports

UOI…………………………………………………………………………..….Union of India

U.P……………………………………………………………………………..…Uttar Pradesh

u/s………………….………………………………………….…………………Under Section

v…………………………………………………………………………………….……Versus

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{Index of Authorities}

INDEX OF AUTHORITIES

{INDEX OF AUTHORITIES}

CASES

1) Akula Ravinder v. State of A.P., AIR 1991 SC 11442

2) Arving Kumar Ambasta v. State of Jharkhan, 2002 CrLJ 3973 (Jhar)
3) Atul v. Sanyasi, (1905) 32 Cal 1051
4) Bakshish Singh v. State of Punjab, AIR 1971 SC 2016
5) Bhoora Singh v. State of U.P., 1992 CrLJ 2294 (All)
6) Bhagat v. Bhagat, AIR 1994 SC 710
7) Bodala Murali Krishna v. Bodala Prathima, AIR 2007 AP 43
8) Chacko v. State of Kerala (2003) 1 SCC 112.
9) Charan Singh v. State of U.P., AIR 1967 SC 520
10) Chellor Mankkal Akhaney v. State of Bombay, AIR 1956 SC 575
11) Chinnamarappa Goundar v. Narayammal AIR 1906 Mad 169
12) Darshana Devi v. State 1996 SCC (Cri) 38
13) Eramma v. Veerupana, AIR 1991 SC 1879
14) Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700
15) Gnanath Pattnaik v. State of Orissa, (2002) 2 SCC 619
16) Govinda Reddy v. State of Mysore, AIR 1960 SC 29
17) Gollin v. Gollin, (1963) 2 All ER 966
18) Gummalappura v. Setra, AIR 1959 SC 577
19) Harjit Singh v. State of Punjab, 2006 (1) SCC 463
20) Hem Chand v. State of Haryana, AIR 1995 SC 120
21) Janki v. Narayansami (1906) 43 IA 87
22) Kahmir Kaur and another v. State of Punjab, AIR 2013 SC 1039
23) Kodadi Srinivasa Lingam v. State of A.P., 2001 CrLJ 602 (AP)
24) Kusumgauri v. Umiben AIR 1975 Guj. 126 (D.B.)
25) Krishna Bhatacharjee v. Sarathi Choudhury, 2016 (2) SCC 705
26) Laljit Sigh v. State of U.P., 2001 CrLJ 143
27) Laxmi v. Om Prakash, 2001 CrLJ 3302
28) Malik Ram Bhoi v. State of Orissa, 1993 CrLJ 984

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{Index of Authorities}

29) Minu Kumari v. State of Bihar, (2006) 4 SCC 359

30) M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T
31) Nallam Veera Satyanandam v. Public Prosecutor, High Court of A.P. AIR 2004 SC 1708
32) Narpat Singh v. State of Rajasthan, 1990 CrLJ 2720 (Raj)
33) Natvarlal Punjabhai v. Dahubhai Manubhai AIR 1954 SC 61
34) Niru Nanhar beck v. State of Orissa, 1995 CrLJ 2412 (Ori)
35) Pakala Nrayana Swami v. Emperor, AIR 1939 PC 47
36) Patel Hiralal Jottaram v. State of Gujrat, AIR 2001 SC 2944
37) Pearilal Rana v. State of W.B., 1992 CrLJ 2644 (Cal)
38) Pratibha Rani v. Suraj Kumar, 1985 (2) SCC 370
39) Radha Rani Bhargava v. Hanuman Prasad Bhargava AIR 1966SC 216
40) Ram Chand and Sons Sugar Mills v. Kanhayalal, [1961] 1 S.C.R. 884
41) R.K. Malkani v. State of Maharashtra (1973) 2 SCR 417
42) Russel v. Russel, 1897 AC 305
43) Sambasiva v. Venkataswara, (1908) 31 Mad
44) Sant Gopal v. State of U.P., 1995 CrLJ 312 (All)
45) Shanti v. State of Haryana, AIR 1991 SC 1226
46) Shoba Rani v. Madhukar Reddy, (1988) 1 SCC 105
47) Sitaji v. Bijendra AIR 1964 SC 601
48) State of A.P. v. I.B.S.P. Rao, AIR 1970 SC 648
49) State of Andhra Pradesh v. Raj Gopal Asawa, (2004) 4SCC 470
50) State of U.P. v. Ameer Ali (1996) 8 SCC 523
51) State v. Kanchan Singh, AIR 1954 All 153
52) Sundari v. Laxmi A.I.R. 1980 SC 198
53) Suvetha v. State, (2009) 6 SCC 757
54) Tapindar Singh v. State AIR 1970 SC 1566.
55) Thakur Das v. State of H.P., 1992 CrLJ 2415 (HP)
56) Vaswant v. State of Maharashtra, AIR 1980 SC 1270
57) Vikas Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158

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{Index of Authorities}
BOOKS & STATUTES

1. PSA PILLAI’S, CRIMINAL LAW (12TH Ed. 2014)

2. K.D GAUR, THE INDIAN PENAL CODE (2ND Ed. 2013)
3. R.V. KELKAR’S, CRIMINAL PROCEDURE (5TH Ed. 2012)
4. RATANLAL & DHIRJLAL, THE INDIAN PENAL CODE (34TH Ed. 2014
5. THE INDIAN PENAL CODE, 1860 (45 of 1860)
6. RATANLAL & DHIRJLAL,CODE OF CRIMINAL PROCEDURE
7. Dr. PARAS DIWAN, FAMILY LAW (10TH Ed. 2013)
8. MULLA, HINDU LAW (21ST Ed. 2010)
9. RATANLAL & DHIRJLAL, THE LAW OF EVIDENCE (25TH Ed. 2015)
10. THE DOWRY PROHIBITION ACT, 1961 (28 OF 1961)
11. PROTECTION OF WOMAN FROM DOMESTIC VIOLENCE ACT, 2005 (43 0F 2005)
12. THE INDIAN EVIDENCE ACT, 1872 (1 OF 1872)
13. THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908)

WEBSITES

1) www.lawyersclubindia.com
2) www.vakilno1.com
3) www.judis.nic.in
4) www.onelawstreet.com
5) www.indiankanoon.com
OTHER MATERIALS

1. Fact Sheet

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{Statements of Jurisdiction}

STATEMENT OF JURISDICTION

{STATEMENT OF JURISDICTION}

THE RESPONDENTS HAS APPROACHED THIS HON’BLE HIGH COURT OF

RAJASTHAN IN REPLY OF THE APPEAL FILED BY APPELLANTS UNDER
SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973.

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{Synopsis Of Facts}

SYNOPSIS OF FACTS

{SYNOPSIS OF FACTS}

Mr. Raj Kumar was running a successful property dealing business in Kuru, he got married to
Malini in the year 2011 according to Hindu rites and ceremonies. In September, 2013, Raj
Kumar told Malini that he had suffered major loss in business. Malini voluntarily offered to
sell the gold which was kept safe in a bank locker jointly accessed by both. Those ornaments
were gifted by her parents and other relatives from both the sides. Raj Kumar denied Malini
suggestion and he rather suggested that she should approach her parents for 20 lakhs from
them.
Upon hearing that Malini’s approach that she is not going to approach her parents, Raj Kumar
got agitated and kept on insisting that she must demand from her parents. On several
occasions, they had heated arguments where he even went to the extent of saying that her
parents have not given him enough at the time of marriage.
II
Malini decided to open the locker by her own. Upon reaching the bank, she found that five
months ago i.e. on 07/07/2013, most of the gold ornaments were removed by Raj Kumar, as
he too has an access to it. Malini confronted Raj about the same. He told her that since it was
a joint locker, therefore, he had an equal right over the said property and no legal authority
allows her to ask any question. Disappointed by the act, Malini approached a law consultancy
firm, Law consultancy firm advised her that the gold ornaments come within the purview of
Stridhan. Malini took the case to family court. Family Court ruled in favour of her husband
by relying upon the facts:
 That bank locker being a joint locker could be operated by either of them.
 That there was sufficient evidence to suggest that after selling the ornaments, the husband
used the money for stabilizing business which was again in the interest of the family.
As an Obiter Dictum, Court stated that joint locker should be operated by mutual consent.
However, in the said case wife had already shown her intention of selling the gold. Aggrieved
by the decision of Family Court Malini filed an appeal with the High Court of Rajasthan with
the contention that gold ornaments come within the purview of Stridhan. The case is pending.

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{Synopsis of Facts}

III
To sort out their differences they went outside in October, 2015. They were accompanied by
their friends Rekha and her husband Vikram in the same guest house. On the night of
10/10/2015, at around 2:00 AM, they heard some noise coming from Malini and Raj Kumar’s
room. Both Rekha and Vikram with the staff rushed towards the room. The door of their
room was broke open and Malini was found burning in flames. Raj Kumar and their daughter
were found lying unconscious in the next room. With the help of the staff, Rekha and Vikram
were able to put off the flames on Ms. Malini’s body. After this, a statement was given by
Malini wherein she said that her husband had tried to burn her by pouring petrol. The said
statement was recorded by Rekha, who happens to be a law teacher.
Malini gave another statement as second dying declaration in the presence of doctors and
police personnel on guard that she herself had poured petrol on her body and had set herself
on fire.
IV
Next morning, Malini died. The Medical Report of Malini, Raj Kumar and their daughter
stated that:
 Death of Malini was caused by Burns.
 High Dose of Zolpidem was found in the blood of Raj Kumar and his daughter.
Police registered a case. Both Dying Declarations, first given to Rekha and second given in
the presence of Doctors and Police Personnel were part of the police report. It was stated in
the report by the investigating officer that Raj Kumar had himself consumed sleeping pills
and he was having enough control over his body to set her on flames.

The court of Session gave life imprisonment to Raj Kumar under section 302 of IPC.
However, the decision of the Court of Session was challenged by Raj Kumar, as he relied on
the Second Dying Declaration given in the presence of Doctors and Police Personnel.
The High Court clubbed both the appeals, one by Malini on the contention of Stridhan and
other by Raj Kumar.

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{Arguments Presented}

ARGUMENTS PRESENTED

{ARGUMENTS PRESENTED}

ISSUE 1: WHETHER THE APPEAL FILED BY Mr. RAJ KUMAR AND MALINI
CAN BE HEARD TOGETHER BY THE HON’BLE HIGH COURT OF
RAJASTHAN?

ISSUE 2: WHETHER THE STATEMENT GIVEN BY MALINI IN THE PRESENCE

OF DOCTORS AND POLICE PERSONNEL COMES WITHIN THE PURVIEW OF
DYING DECLARATION UNDER SECTION 32 OF THE INDIAN EVIDENCE ACT,
1872?

ISSUE 3: WHETHER THE ACT COMMITTED BY Mr. RAJ KUMAR COMES

WITHIN THE PURVIEW OF SECTION 302, 304B AND 498A OF INDIAN PENAL
CODE, 1860?

ISSUE 4: WHETHER THE GOLD ORNAMENTS COMES WITHIN THE

PURVIEW OF STRIDHAN UNDER SECTION 14 OF HINDU SUCCESSION ACT,
1956?

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{Summary of Arguments}

SUMMARY OF ARGUMENTS

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{Summary of Arguments}

SUMMARY OF ARGUMENTS

{SUMMARY OF ARGUMENTS}

ISSUE 1: WHETHER THE APPEAL FILED BY Mr. RAJ KUMAR AND MALINI
CAN BE HEARD TOGETHER BY THE HON’BLE HIGH COURT OF
RAJASTHAN?

It is humbly submitted to the kind concern of the court that the fundamental objective behind
clubbing of the two judicial proceedings is to prevent abuse of legal process in either of them.
It is a well established principle of law that court may exercise its inherent powers in order to
prevent abuse of legal process. It has been observed by the court, that the Courts had power
under Section 151, in the absence of any express or implied prohibition, to pass an order as
may be necessary for the ends of justice or to prevent the abuse of the process of the Court. It
further reiterated that the court can exercise inherent powers to advance greater interests of
justice and to prevent abuse of legal process.

ISSUE 2: WHETHER THE STATEMENT GIVEN BY MALINI IN THE PRESENCE

OF DOCTORS AND POLICE PERSONNEL COMES WITHIN THE PURVIEW OF
DYING DECLARATION UNDER SECTION 32 OF THE INDIAN EVIDENCE ACT,
1872?

It is humbly submitted that the statement given by Malini in presence of doctors and police
personnel does not comes within the purview of dying declaration under section 32(1) of the
Indian Evidence Act, 1872. The probability of death was very high when she gave a
statement in presence of her friend. When two dying declaration are there the first
declaration is admissible. The Dying declaration made in presence of doctors and police
personnel is not relevant.

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{Summary of Arguments}

ISSUE 3: WHETHER THE ACT COMMITTED BY Mr. RAJ KUMAR COMES

WITHIN THE PURVIEW OF SECTION 302, 304B AND 498A OF INDIAN PENAL
CODE, 1860?

It is humbly submitted to the kind perusal of this jurisdiction that the act committed by Mr.
Raj Kumar comes within the purview of sections 302, 304B and 498A 0f the Indian Penal
Code, 1860. Act committed by Mr. Raj Kumar comes within the purview of section 302 OF
IPC. The act comes within the purview of section 304B of IPC as all the essentials are
fulfilled. It is contended too that Mr. Raj Kumar is liable for the act of cruelty as stated under
section 498A of IPC.

ISSUE 4: WHETHER THE GOLD ORNAMENTS COMES WITHIN THE

PURVIEW OF STRIDHAN UNDER SECTION 14 OF HINDU SUCCESSION ACT,
1956?

It is humbly submitted to the kind perusal of this Jurisdiction that the Gold Ornaments comes
within the purview of Stridhan as stated under section 14 of Hindu Succession Act, 1956.
Woman has exclusive right over the Stridhan. Husband has no right over the property of
woman which is covered under section 14 of Hindu Succession Act. No one can interfere
with the use of the Stridhan, it can only be used by a woman.

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{Arguments Advanced}

ARGUMENTS ADVANCED

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{Arguments Advanced}

ARGUMENTS ADVANCED

{ARGUMENTS ADVANCED}

I. WHETHER THE APPEAL FILED BY Mr. RAJ KUMAR AND MALINI CAN BE
HEARD TOGETHER BY THE HON’BLE HIGH COURT OF RAJASTHAN?

(¶1.) It is humbly submitted to the kind concern of the court that the fundamental objective
behind clubbing of the two judicial proceedings is to prevent abuse of legal process in either
of them. It is a well established principle of law that court may exercise its inherent powers in
order to prevent abuse of legal process. 1 It has been observed by the court in M/s Jaipur
Mineral Development Syndicate v. The Commissioner of I.T 2, that the Courts had power
under Section 151, in the absence of any express or implied prohibition, to pass an order as
may be necessary for the ends of justice or to prevent the abuse of the process of the Court. It
further reiterated that the court can exercise inherent powers to advance greater interests of
justice and to prevent abuse of legal process.3

(¶2.) In the very recent verdict of K.K. Velusamy v. N. Palaanisamy[xv], the Hon’ble
Supreme Court upheld that Section 151 of the Code recognizes the discretionary power
inherited by every court as a necessary corollary for rendering justice in accordance with law,
to do what is ‘right’ and undo what is ‘wrong’. The Court summarized the scope of Section
151 of the CPC as follows:

(a) Section 151 is not a substantive provision which confers any power or jurisdiction on
courts. It merely recognizes the discretionary power of every court for rendering justice in
accordance with law, to do what is `right’ and undo what is `wrong’, that is, to do all things
necessary to secure the ends of justice and prevent abuse of its process.

(b) The provisions of the Code are not exhaustive; section 151 says that if the Code does not
expressly or impliedly cover any particular procedural aspect, the inherent power can be used
by the court to deal with such situation, to achieve the ends of justice, depending upon the
facts and circumstances of the case.

1
Ram Chand and Sons Sugar Mills v. Kanhayalal, [1961] 1 S.C.R. 884
2
AIR 1966 SC 1899
3
Supra, n.8

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{Arguments Advanced}

(c) A Court has no power to do things which is prohibited by law or the Code, in the exercise
of its inherent powers. The court cannot make use of the special provisions of Section 151 of
the Code, where the remedy or procedure is expressly provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically
conferred, a court is free to exercise them and the court should exercise it in a way that it
should not be in conflict with what has been expressly provided in the Code.

(e) While exercising the inherent power, there is no such legislative guidance to deal with
those special situations of the case and so the exercise of power depends upon the discretion
and wisdom of the court, and also upon the facts and circumstances of the case. So, such
consequential situation should not however be treated as a carte blanche to grant any relief.

(f) The power under section 151 will have to be used with care, only where it is absolutely
necessary, when there is no provision in the Code governing the matter or when the bona
fides of the applicant cannot be doubted or when such exercise is to meet the ends of justice
and to prevent abuse of process of court.

(¶3.) It has been further held that “All Courts, whether civil or criminal, possess, in the
absence of any express provision, as inherent in their constitution, all such powers as are
necessary to do the right and to undo a wrong in the course of administration of justice on
the principle “quando lex aliquid alicue concedit, concedere videtur id sine quo res ipsa
esse non potest“ (when the law gives a person anything, it gives him that without which
it cannot exist).4

(¶4.) It is in light of the averments as made above that the court in the instant proceeding has
jurisdiction to decide and dispense with all complexities which may hinder justice or may
aggravate abuse of legal process.

4
Minu Kumari v. State of Bihar, (2006) 4 SCC 359

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{Arguments Advanced}

II. WHETHER THE STATEMENT GIVEN BY MALINI IN THE PRESENCE OF

DOCTORS AND POLICE PERSONNEL COMES WITHIN THE PURVIEW OF
DYING DECLARATION UNDER SECTION 32 OF THE INDIAN EVIDENCE
ACT, 1872

(¶5.) It is humbly submitted that the statement given by Malini in presence of doctors and
police personnel does not comes within the purview of dying declaration under section 32(1)
of the Indian Evidence Act, 1872. The probability of death was very high when she gave a
statement in presence of her friend [A]. When two dying declaration are there the first
declaration is admissible [B]. The Dying declaration made in presence of doctors and police
personnel is not relevant[C].

[A]. THE PROBABLITY OF DEATH WAS VERY HIGH WHEN SHE GAVE HER
STATEMENT IN PRESENCE OF HER FRIEND

(¶6.) It is humbly submitted that dying declaration is a statement by a person as to cause of

his death or as to any circumstances resulting in his death5. As this case is related to dowry
death and a dying declaration could not be rejected merely on the ground that it was made to
the relatives or friends of the deceased6. It is not always necessary that a dying declaration
should be certified by a doctor before reliance could be placed on the same7. The recorded
evidence is admissible if it is not tampered or altered8. Video conferencing evidences has
been permitted in criminal cases9.

(¶7.) It is humbly submitted that the Police Report submitted by the I.O also claimed that the
act of pouring petrol over Malini was done by Raj Kumar10. The report was filed after the
completion of the whole investigation process. Dying declaration means that a statement
written or verbal of written facts made by a person who is dead11. It is contended too that

5
Tapindar Singh v. State AIR 1970 SC 1566.
6
Bhoora Singh v. State of U.P., 1992 CrLJ 2294 (All)
7
Chacko v. State of Kerala (2003) 1 SCC 112.
8
R.K. Malkani v. State of Maharashtra (1973) 2 SCR 417
9
Bodala Murali Krishna v. Bodala Prathima, AIR 2007 AP 43
10
¶ 10 Fact Sheet
11
Sant Gopal v. State of U.P., 1995 CrLJ 312 (All)

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{Arguments Advanced}

when the conviction of the accused is sought to be based on oral dying declaration, the exact
word of the deceased must be reproduced12. It is also contended that sentiment for the wholly
undeserving husband did not reduce the evidentiary force of the declaration13.

(¶8.) It is therefore contended that the probability of death was very high when Malini gave
her statement in presence of her friend.

[B]. WHEN TWO DYING DECLARATION ARE THERE THE FIRST DECLARATION IS
ADMISSIBLE

(¶9.) It is humbly submitted that the Supreme Court has suggested that the first statement in
point of time made by the injured person must be preferred to any of his subsequent
statements14. The court also observed that the fact that there are more than one and apparently
consistent dying declaration is not in itself sufficient to persuade the court to act thereon 15.
Each dying declaration will have to be considered independently16, but it should be supported
with evidences as in the present case the final report of the police states that the declaration
made in the presence of her friend is admissible 17. The dying declaration need not to be
recorded in question and answer form18. It has been suggested that the statement making it
must be at any rate near death, that the ‘circumstances’ can only include acts done when and
where the death was caused19.

2.1 DYING DECLARATION RECORDED BY DOCTOR

(¶10.) It is humbly submitted that until and unless a dying declaration is not corroborated
with the testimony of other eye-witnesses, it will be treated as insufficient20. In a case21 where
the dying declaration was recorded by a doctor who failed to take the signature of the
deceased and it was neither attested by I.O. nor any person of medical staff, the declaration
was held to

12
Darshana Devi v. State 1996 SCC (Cri) 38
13
Vaswant v. State of Maharashtra, AIR 1980 SC 1270
14
Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700
15
Laxmi v. Om Prakash, 2001 CrLJ 3302
16
Nallam Veera Satyanandam v. Public Prosecutor, High Court of A.P. AIR 2004 SC 1708
17
¶ 10 Fact Sheet
18
State of U.P. v. Ameer Ali (1996) 8 SCC 523
19
Pakala Nrayana Swami v. Emperor, AIR 1939 PC 47
20
Malik Ram Bhoi v. State of Orissa, 1993 CrLJ 984
21
Niru Nanhar beck v. State of Orissa, 1995 CrLJ 2412 (Ori)

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be unreliable. Therefore it is contended that the statement made in the presence of doctor is
not admissible22.

2.2 DYING DECLARATION RECORDED BY POLICE

(¶11.) it is humbly submitted that dying declaration recorded by police does not stand self-
condemned but creates suspicion23. In the present case police officers themselves relied on
the declaration made by the deceased in the presence of her friend as all the circumstantial
evidences were pointing towards the declaration made in the presence of her friend24.

(¶12.) Therefore, it is humbly submitted that the declaration made in the presence of doctors
and police personnel is not admissible.

[C]. THE DYING DECLARATION MADE IN THE PRESENCE OF DOCTORS AND POLICE
PERSONNEL IS NOT RELEVANT

(¶13.) It is humbly submitted that the dying declaration made in the presence of doctors and
police personnel is not relevant. The Supreme Court has emphasized the need for effort by
courts, as far as possible to include a statement within the scope of S.32 (1)25. Therefore it is
submitted that the declaration made in presence of her friend is admissible.

(¶14.)Statement by a person as to the cause of his death becomes relevant when the cause of
his death comes into question even if the person was not expectation of death at the time of
making the statement26. It was held by the court that where the victim was severely injured
and died next day, the court said that the detailed account of how the accident took place
could not have been expected 27 . No particular procedure has been prescribed by any
provision of law for recording such a declaration even a layman is competent to record and
prove the same in the usual manner like other facts and documents28.

22
¶ 8 Fact Sheet
23
Pearilal Rana v. State of W.B., 1992 CrLJ 2644 (Cal)
24
¶ 7 Fact Sheet
25
Patel Hiralal Jottaram v. State of Gujrat, AIR 2001 SC 2944
26
Thakur Das v. State of H.P., 1992 CrLJ 2415 (HP)
27
Laljit Sigh v. State of U.P., 2001 CrLJ 143
28
Narpat Singh v. State of Rajasthan, 1990 CrLJ 2720 (Raj)

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(¶15.) Therefore, it is humbly submitted that the statement made by Malini in presence of
doctors and police personnel is not relevant rather than the statement made in the presence of
her friend is admissible as it relates to the circumstantial evidences.

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III. WHETHER THE ACT COMMITTED BY Mr. RAJ KUMAR COMES WITHIN
THE PURVIEW OF SECTION 302, 304B AND 498A OF INDIAN PENAL CODE,
1860?

(¶16.) It is humbly submitted to the kind perusal of this jurisdiction that the act committed by
Mr. Raj Kumar comes within the purview of sections 302, 304B and 498A 0f the Indian
Penal Code, 1860. Act committed by Mr. Raj Kumar comes within the purview of section
302 OF IPC[A]. The act comes within the purview of section 304B of IPC as all the
essentials are fulfilled [B]. It is contended too that Mr. Raj Kumar is liable for the act of
cruelty as stated under section 498A of IPC [C].

[A]. ACT COMMITTED BY Mr. RAJ KUMAR COMES WITHIN THE PURVIEW OF
SECTION 302 OF IPC

(¶17.) It is humbly submitted that the committed by Mr. Raj Kumar comes within the
purview of section 302 of IPC. As the Supreme Court of India held in a case29 that the first
statement made in the point of time must be preferred to any of the subsequent statements.
Malini already stated in her first dying declaration that his husband poured petrol over her
due to which she died as per the medical reports30.

1.1 CIRCUMSTANTIAL EVIDENCE

(¶18.) It is humbly submitted that the Supreme Court has emphasized the need for effort by
courts, as far as possible to include statements within the scope of the S.32 (1). Statements as
to any circumstances of the transaction which resulted in the death should be included 31. In a
case32 the statement of the victim was clearly related to the circumstances of the transaction
and the accused was convicted based on that statement. As the circumstances clearly
establishes that Mr Raj Kumar has poured the petrol over Malini and consumed sleeping pills
as he was habitual of consuming it, and if the circumstances are established33 the accused

29
Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700
30
¶ 9 Fact Sheet
31
Patel Hiralal Jottaram v. State of Gujrat, AIR 2001 SC 2944
32
State v. Kanchan Singh, AIR 1954 All 153
33
Govinda Reddy v. State of Mysore, AIR 1960 SC 29

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Must be convicted. As the guilt of accused can also be proved by circumstantial evidence34
also.

(¶19.) It is humbly submitted that the act was done within all human probability35 by Mr. Raj
Kumar and every possible step was taken by Mr. Raj to hide his act. Therefore, when
deciding the question of sufficiency, what the court has to consider is the total cumulative
effect of all the proved facts each one of which re-enforces the conclusion of guilt36. In such
cases, the court must guard against the danger of allowing conjecture or suspicion to take the
place of legal proof37. Therefore it is pleaded before this Hon’ble Court the Mr Raj Kumar
shall be punished in accordance with section 302.

[B]. THE ESSENTIALS OF SECTION 304B ARE FOUND

(¶20.) It is humbly submitted that essentials of section 304B are found in the case as Mr. Raj
Kumar was demanding 20 lakhs from her. He even went to the extent of saying that her
parents have not given him enough at the time of marriage38, this line clearly shows that Mr.
Raj is a greedy person and he kept on torturing and harassing Malini for not getting the
amount which he demanded as a result of that he poured petrol over Malini and burnt him.As
the definition of dowry is not restricted to agreement or payment of dowry before and at the
time of marriage but even include subsequent demands39. One of the important elements of
this section is cruelty and harassment should be made soon before death40, as in the present
case cruelty was done with Malini soon before her death.

2.1 PRESUMPTION OF DOWRY DEATH (S.113B OF IEA)

(¶21.) It is humbly submitted that where the death where the death was caused by
strangulation and evidence was available to show that dowry was being demanded and the
accused husband was also subjecting his deceased wife to cruelty, it was held that the
presumption

34
Vikas Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158
35
Bakshish Singh v. State of Punjab, AIR 1971 SC 2016
36
State of A.P. v. I.B.S.P. Rao, AIR 1970 SC 648
37
Charan Singh v. State of U.P., AIR 1967 SC 520
38
¶ 2 Fact Sheet
39
State of Andhra Pradesh v. Raj Gopal Asawa, (2004) 4SCC 470
40
Harjit Singh v. State of Punjab, 2006 (1) SCC 463

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under the section applied with full force making the accused liable to be convicted under
section 304B of IPC41. The court took the occasion to explain the ingredient of section 304B
in a case42 K. JAYACHANDRA REDDY J. said; “ A careful analysis of section 304B shows that
this section has the following essentials, (a) the death of a woman should be caused by burn
or bodily injury otherwise than under normal circumstances43. (b) Such death should have
occurred within seven years of her marriage44. (c) She must have been subjected to cruelty or
harassment by her husband or any relative of her husband. (d) Such cruelty or harassment
should be for or in connection with demand for dowry45. Therefore it is humbly submitted
that Mr. Raj Kumar is liable for punishment under section 304B of IPC.

[C]. Mr. RAJ KUMAR IS LIABLE FOR CRUELTY UNDER SECTION 498A OF IPC

(¶22.) It is humbly submitted that Mr. Raj Kumar is liable for the act of cruelty under section
498A of IPC. As even mental torture or abnormal behavior may amount to cruelty or
harassment46. The ingredient of section 498A are; (a) The woman must be married (b) she
must be subjected to cruelty or harassment (c) Such cruelty or harassment must have been
shown either by husband of the woman or by the relative of her husband47.

(¶23.) It is humbly submitted that this section has its own identity, the Supreme Court
observed in another case that this section has given a new dimension to the concept of cruelty
for the purposes of matrimonial remedies and that the type of conduct described here would
be relevant for proving guilty48. Even if the guilt for another offences have not been proved
this section is enough to convict a person49. In a case50 where the accused mother-in-law, the
husband and his brother harassed the married woman and did not permit her to go to her
parents. The husband and his brother disposed her of by fire after pouring kerosene. They
were punished under S.302. Their mother was punished under Section 498A of the Indian
Penal Code.

41
Hem Chand v. State of Haryana, AIR 1995 SC 120
42
Shanti v. State of Haryana, AIR 1991 SC 1226
43
Akula Ravinder v. State of A.P., AIR 1991 SC 11442
44
Arving Kumar Ambasta v. State of Jharkhan, 2002 CrLJ 3973 (Jhar)
45
Kahmir Kaur and another v. State of Punjab, AIR 2013 SC 1039
46
Gnanath Pattnaik v. State of Orissa, (2002) 2 SCC 619
47
Suvetha v. State, (2009) 6 SCC 757
48
Shoba Rani v. Madhukar Reddy, (1988) 1 SCC 105
49
Chanda v. State of A.P., 1996 CrLJ 2670 (AP)
50
Kodadi Srinivasa Lingam v. State of A.P., 2001 CrLJ 602 (AP)

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(¶24.) Therefore it is humbly submitted that Mr. Raj has committed the offence of section
302, 304B and 498A of the Indian Penal Code, 1860. He should be punished with the
maximum punishment prescribed under the relevant sections for the sake of Justice.

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IV. WHETHER THE GOLD ORNAMENTS COMES WITHIN THE PURVIEW OF

STRIDHAN UNDER SECTION 14 OF HINDU SUCCESSION ACT, 1956?

(¶25.) It is humbly submitted to the kind perusal of this Jurisdiction that the Gold Ornaments
comes within the purview of Stridhan as stated under section 14 of Hindu Succession Act,
1956. Woman has exclusive right over the Stridhan[A]. Husband has no right over the
property of woman which is covered under section 14 of Hindu Succession Act [B]. No one
can interfere with the use of the Stridhan, it can only be used by a woman [C].

[A]. WOMAN HAS EXCLUSIVE RIGHT OVER THE STRIDHAN

(¶26.) It is humbly submitted that Stridhan means woman’s property 51 . A woman has
exclusive right52 over the stridhan, meaning thereby that any property possessed by a woman
shall be held by her as a full, not limited owner. In the present case the gold ornaments were
gifted to Malini by her parents and other relatives from both the sides 53 . It is humbly
submitted that anything gifted to a woman comes under the purview of Stridhan 54, which
includes property given or bequeathed55. In a case56, Privy Council very aptly observed, “Her
right is of the nature of right of property, her position is that of a owner, her powers in that
character are, however, limited… So long as she is alive, no one has vested interest in
succession”

1.1 POWER OF A HINDU FEMALE OVER HER WOMAN’S ESTATE

(¶27.) It is humbly submitted that a woman can alone on behalf of the estate and she alone
can be sued in respect of it57. It is contended too that a woman can surrender which means
renunciation of estate by the female owner58, for a valid surrender, the first condition is that it
must be of the entire estate59, though she may retain a small portion of her maintenance60 etc.
Therefore it is humbly contended that a woman has absolute power when it comes to
Stridhan.

51
Mitakshara II ix, 2.
52
Sundari v. Laxmi A.I.R. 1980 SC 198
53
¶ 1 Fact Sheet
54
Sambasiva v. Venkataswara, (1908) 31 Mad
55
Atul v. Sanyasi, (1905) 32 Cal 1051
56
Janki v. Narayansami (1906) 43 IA 87
57
Sitaji v. Bijendra AIR 1964 SC 601
58
Dyabhaga XI, I, 56-57
59
Natvarlal Punjabhai v. Dahubhai Manubhai AIR 1954 SC 61
60
Chinnamarappa Goundar v. Narayammal AIR 1906 Mad 169

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(¶28.) It is humbly submitted that the Supreme Court, observed that when a Hindu female
holder of woman’s estate improper makes alienation, the reversionary are not bound to
institute a declaratory suit during the lifetime of the female holder. After the death of woman,
they can sue the alienee for possession of the estate treating alienation as a nullity 61 .
Therefore it is concluded that woman has exclusive right as well as power to deal with the
Stridhan.

[B]. HUSBAND HAS NO RIGHT OVER THE PROPERTY OF WOMAN

(¶29.) It is humbly submitted that Husband or any other person has no right over the property
which is recognized as Stridhan. It was held that for attracting provisions of section 14(1)
three conditions should be satisfied: (i) the property must be possessed by hindu female, (ii)
the property possessed should be acquired, (iii) she must have been a limited owner thereof 62.
It is contended too that the gold ornaments come within the purview of Stridhan and Malini
was the only person having exclusive right over that property63.

(¶30.) It is humbly submitted that the Supreme Court said: “The word ‘possessed’ in section
14 is used in broad sense and in the context means the state of owing or having in one’s hand
or power” 64 . It cannot be interpreted so as to validate the illegal possession of a female
Hindu, nor does it confer any title on a mere tresspasser65.

2.1 PENAL LIABILITIES

(¶31.) It is humbly submitted that if Husband harasses her wife with a view to demand
property or valuables security then he may be liable for imprisonment for three years plus
fine66 . In common language ‘cruelty’ means a repressible conduct, which is departure from
the normal standard conduct of conjugal relationship that causes an injury to health and
happiness of other spouse 67 . In the present case, both Malini and Raj Kumar had heated
arguments where Raj Kumar said that her parents had not given him enough at the time of the
marriage.

61
Radha Rani Bhargava v. Hanuman Prasad Bhargava AIR 1966SC 216
62
Kusumgauri v. Umiben AIR 1975 Guj. 126 (D.B.)
63
¶ 4 Fact Sheet
64
Gummalappura v. Setra, AIR 1959 SC 577
65
Eramma v. Veerupana, AIR 1991 SC 1879
66
Exp. (b) to Section 498A IPC
67
Bhagat v. Bhagat, AIR 1994 SC 710: Gollin v. Gollin, (1963) 2 All ER 966

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(¶32.) It is humbly submitted that in the case68 the house of lords has very aptly observed that
“As a conduct of such character as to have caused danger to life or health, bodily or mental,
give rise to reasonable apprehension of such danger.” Later on in the present case the death
of Malini was caused as a result of all these pressure69. Therefore it is contended that the idea
behind keeping the Husband away from the woman’s property is justified and reasonable.

(¶33.) It is humbly submiited that not only undersection 498A of IPC but also under section
406 of IPC Mr. Raj Kumar is held liable as he has removed the gold ornaments from the
locker without informing Malini about this70. It is submitted too that when the accused was
entrusted with the property or with the dominion or power over the property of another and
that he dishonestly misappropriated it for his personal use 71 , in the present case Mr. Raj
Kumar has used Malini’s property and thereby causing Criminal Breach of Trust.

[C]. STRIDHAN CAN ONLY BE USED BY A WOMAN

(¶34.) It is humbly submitted that like the Karta of a Hindu Joint Family she has full power
of management. It is contended too that section 14 of Hindu Succession Act, 1956 r/w section
27 of Hindu Marriage Act, 1955 makes a Hindu Female an absolute owner of such
property72. Supreme Court in a case73 held that “A Hindu married woman is the absolute
owner of her stridhan property and can deal with it in any manner she likes and, even if it is
placed in the custody of her husband or her in-laws they would be deemed to be trustees and
bound to return the same when demanded by her”.

(¶35.) It is humbly submitted that in the case74 it was held by the Supreme Court that the wife
is entitled to the return of her stridhan from an estranged husband under the Domestic
Violence Act, 2005 even if there is a decree of judicial separation.75 It is contended too that
the wife has exclusive rights when it comes to dispose the property of Stridhan.

68
Russel v. Russel, 1897 AC 305
69
¶ 9 Fact Sheet
70
¶ 3 Fact Sheet
71
Chellor Mankkal Akhaney v. State of Bombay, AIR 1956 SC 575
72
http://www.lawctopus.com/academike/streedhan-right-woman/ (Last Visited on 15 February, 2017 at 12.54
am)
73
Pratibha Rani v. Suraj Kumar, 1985 (2) SCC 370
74
Krishna Bhatacharjee v. Sarathi Choudhury, 2016 (2) SCC 705
75
https://www.telegraphindia.com/1151121/jsp/nation/story_54319.jsp#.WKNd-m997IU ((Last Visited on 15
February, 2017 at 01:17 am)

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(¶36.) Therefore, it is humbly submitted that the gold ornaments comes within the purview of
section 14 of Hindu Succession Act, 1956. It is contended too that the gold ornaments of
Malini comes within the purview of this section and Mr raj Kumar has committed various
offences by dishonestly removing the gold ornaments from the locker whose exclusive right
was vested with Malini.

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Prayer

PRAYER

{PRAYER}

Wherefore it is prayed, in light of issues raised, arguments advanced and authorities cited that
this Hon’ble Court may be pleased to:

1. Declare that appeal filed by Mr. Raj Kumar and Ms. Malini can be heard together by
this Hon’ble Court.
2. Declare that the Statement given by Ms. Malini in the presence of Doctors and Police
Personnel comes within the purview of Dying Declaration under section 32 of Indian
Evidence Act, 1872
3. Declare that the Act committed by Mr. Raj Kumar comes within the purview of
Sections 302, 304B and 498A of the Indian Penal Code, 1860
4. Declare that the Gold Ornaments comes within the purview of Stridhan under section
14 of Hindu Succession Act, 1956.

And Pass any other Order, Direction or Relief that it may deem fit in the Best Interests
Justice, Fairness, Equity and Good Conscience.

For this Act of Kindness, the Respondents Shall Duty Bound Forever Pray.

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