BEFORE THE HON’BLE HIGH COURT OF PUNJAB & HARYANA

(CRIMINAL APPELLATE JURISDICTION)

IN THE MATTER OF

ABHISHEK & ORS ….……APPELLANT

V.

STATE OF PUNJAB ….…. RESPONDENT

CRIMINAL APPEAL NO. _______

ON SUBMISSION TO THE HON’BLE HIGH COURT OF PUNJAB & HARYANA

UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1908

MEMORIAL on behalf of Respondent

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CLASS MOOT
 TABLE OF CONTENTS

TABLE OF CASES....................................................................................................................3

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

STATEMENT OF JURISDICTION...........................................................................................5

STATEMENT OF FACTS.........................................................................................................6

ISSUES RAISED........................................................................................................................8

SUMMARY OF ARGUMENTS................................................................................................9

ARGUMENTS ADVANCED..................................................................................................10

PRAYER...................................................................................................................................18

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MEMORIAL ON BEHALF OF RESPONDENT
 TABLE OF CASES

- Wazir Chand versus State of Haryana [(1989) 1 SCC 244]

- Balwinder Singh vs State of Punjab [2019 SCC Online P&H 11]
- Bhagwan Das vs Kartar Singh [(2007) 11 SCC 205
- Madan Mohan Singh vs State of Gujarat [(2010) 8 SCC 628]
- Gumansinh vs State of Gujarat [2021 SCC Online SC 660]
- Ramesh Kumar vs State of Chattisgarh [(2001) 9 SCC 618]
- Kranti Mishra vs State of U.P. [2021 SCC Online All 81]
- Guru Charan Singh vs State of Punjab [(2020) 10 SCC 200]
- Jayamma & Anr vs State of Karnataka [Criminal Appeal No 758 of 2010]
- Kushal Rao vs State of Bombay [1958 AIR 22]
- State of Uttar Pradesh vs Ram Sagar Yadav and Ors [1985 SCR (2) 621]
- Naresh Kumar vs Kalawati [Criminal Appeal 35 of 2013]
- Dijan Mandal vs State of Bihar [2018 SCC Online Jhar. 417]
- Amin vs State of Rajasthan [2019 SCC Online Raj 3945]
- Muthu Kutty vs State of T.N. [(2005) 9 SCC 113]
- Munnu Raja vs State of M.P. [1976 3 SCC 104]

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MEMORIAL ON BEHALF OF RESPONDENT
 LIST OF ABBREVIATIONS

§ Section
& And
Read With r/w
A.I. R All India Reporter
Anr. Another
Ed. Edition
No. Number
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
Supp Supplementary
vs Versus
Vol. Volume
A.P. Andhra Pradesh
ILR Indian Law Reports
Asso. Association
u/s Under Section
Prop Proposition
P&H Punjab and Haryana
Mah. Maharashtra

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MEMORIAL ON BEHALF OF RESPONDENT
 STATEMENT OF JURISDICTION

THE COUNSEL FOR THE RESPONDENT HUMBLY SUBMITS BEFORE THIS

HON’BLE COURT THAT THE RESPONDENTS APPROACHED THIS HON’BLE
COURT UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1908

Section 374-

(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 has been passed against him or against any other person
convicted at the same trial, may appeal to the High Court.

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MEMORIAL ON BEHALF OF RESPONDENT
 STATEMENT OF FACTS

The facts of the present case are summarized as follows:

1. Mr. Aniket who is middle class person having 2 children and his wife went to visit his
brother namely Mr Aditya at his place in Amritsar. There Aniket met with some of the
friends and elders of his brother who live in the same society. One such person Mr
Chadha got acquainted with Aniket and over the time showed his interest in getting
the marriage of his son who is settled in Amritsar solemnized with Mr Aniket’s
daughter namely Ishita. Thereafter on 02.11.2012 the marriage of Ishita with Abhishek
(Mr Chadha’s son) was performed at Amritsar.
2. Unfortunately, there was no issue born to their wedlock. Ishita on number of occasions
told her parental mother that her mother-in-law used to taunt her about bringing less
dowry to her matrimonial house and even doubted her character and used to taunt her
about the same. When she told about this situation to her husband (Abhishek), he,
instead of supporting her slapped her and even went to the extent of throwing her out
of the house although she came back the same day in the evening. Thereafter
whenever Ishita used to operate her phone including all the social media platforms her
husband used to taunt and assassinate her character. Over the time such taunts of not
being able to conceive a child and physical beatings became a matter of daily routine.
3. Fed up with such behaviour of her family members and because of taunts she had to
face, Ishita, while living in her matrimonial house on 20.03.2020 at around 4 pm put
herself on fire by sprinkling Kerosene oil on her body. She suffered severe burns.
Ultimately even after the best of treatment she could not be saved and she died the
very next day but before her death she made a statement before a Magistrate
mentioning about her maltreatment by the accused i.e., her husband and mother-in-
law. She even stated that she did not want to live as her husband and mother-in-law
doubted her character. Thereafter a case was registered under 306 of the Indian Penal
Code against the accused/husband and he was ultimately convicted under section 306
IPC and sentenced to rigorous imprisonment for 8 years by the district judge.

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MEMORIAL ON BEHALF OF RESPONDENT
4. For the sake of understanding the statement of Ishita which is treated as a dying
declaration is reproduced as under:
“I was married 8 years back and have no child. I was maltreated by my mother-in-law
Kavita Devi and my husband Abhishek. Due to this maltreatment, today at about 4
p.m. I put kerosene on my body and put myself on fire with matches. My Devrani
Anjali was at house. The neighbours extinguished the fire and my brother Arjun, and
my husband brought me to the hospital for treatment. I put myself on fire in room of
my house as I do not want to live in this world because my husband and mother-in-
law doubted my character.”

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MEMORIAL ON BEHALF OF RESPONDENT
 ISSUES RAISED

ISSUE NO 1:

WHETHER THE APPELLANTS SHOULD BE HELD LIABLE FOR ABETMENT OF

SUICIDE UNDER SECTION 306 OF THE IPC OR NOT?

ISSUE NO 2:

WHETHER THE APPELLANTS CAN BE CONVICTED ON THE BASIS OF DYING

DECLARATION OR NOT?

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MEMORIAL ON BEHALF OF RESPONDENT
 SUMMARY OF ARGUMENTS

CONTENTION 1: WHETHER THE APPELLANTS SHOULD BE HELD LIABLE

FOR ABETMENT OF SUICIDE UNDER SECTION 306 OF THE IPC OR NOT?

The counsel on behalf of the respondent humbly submits before this hon’ble Court that the
appellants should be held liable for abetment to suicide under section 306 of the Indian Penal
Code, 1860 as the pre-requisites of the section are met with and the hon’ble district judge was
correct in sentencing the appellants for rigorous imprisonment of eight years.

CONTENTION 2: WHETHER THE APPELLANTS CAN BE CONVICTED ON THE

BASIS OF DYING DECLARATION OR NOT?

That the counsel for the respondent humbly submits to the hon’ble Court that the dying
declaration made by the deceased wife to the Magistrate under proper procedure and full
knowledge. It was made voluntarily describing the sad state of affairs that the respondent was
subjected to on a daily basis by her mother-in-law and her husband. It was a result of that the
respondent took the step of committing such a grave act. Thus, the appellants should be held
liable as the dying declaration made by the deceased wife holds ample corroboration to
convict the appellants

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MEMORIAL ON BEHALF OF RESPONDENT
 ARGUMENTS ADVANCED

CONTENTION 1: WHETHER THE APPELLANTS SHOULD BE HELD LIABLE

FOR ABETMENT OF SUICIDE UNDER SECTION 306 OF THE IPC?

The counsel on behalf of the respondent humbly submits before this hon’ble Court that the
appellants should be held liable for abetment to suicide under section 306 of the Indian Penal
Code, 1860.

Section 306 of the Indian Penal Code relates to the abetment of suicide and is extracted
below-

“Abetment of suicide- If any person commits suicide, whoever abets the commission of
such suicide, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.”

That the bare reading of the provision indicates for the offence under section 306 of the Indian
Penal Code the prosecution needs to first establish that a suicide has been committed secondly
the prosecution must also prove that the person who is said to have abetted the commission of
suicide has played an active role in the same. Section 113- A of the Indian Evidence Act
create a presumption against the husband and/or his or her relative with respect to abetment of
suicide of a married woman under certain conditions.

That the necessary ingredients to constitute an offence under section 306 of the Indian Penal
Code were considered by the Supreme Court in the case of Wazir Chand versus State of
Haryana1 in which the Court held that-

“Reading Sections 306 and 307 together it is clear that if any person instigates any
other person to commit suicide, and as a result of such instigation, the other person

1
(1989) 1 SCC 244

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MEMORIAL ON BEHALF OF RESPONDENT
 commits suicide, the person causing the instigation is liable to be punished under
section 306 of the Indian Penal Code 1860 for abetting the commission of suicide. A
plane reading of this prevision shows that before a person can be convicted of
abetting the suicide of any other person it must be established that such other person
committed suicide”

That in the case of Balwinder Singh vs State of Punjab 2, the Punjab & Haryana High Court
opined that before holding an accused guilty of an offence under Section 306 IPC, the Court
must scrupulously examine facts and circumstances of the case to find out whether the cruelty
and harassment meted out to the victim had left him with no other alternative but to put an
end to his life. The person who is said to have abetted the commission of suicide must have
played an active role by an act of instigation or by doing certain actions to facilitate the
commission of suicide.

Reliance was placed on Apex Court’s dictum in Bhagwan Das v. Kartar Singh 3,  and Madan
Mohan Singh v. State of Gujarat.4 It was held that there was nothing on record to show that
by way of wilful conduct of the petitioners, the deceased was compelled to commit suicide.
The alleged suicide note only reflected deceased’s love towards his wife and there was no
indication of any harassment. Thus, the impugned order was set aside.

That the Supreme Court in the case of Gumansinh vs State of Gujarat5 upheld the conviction
of mother-in-law and the husband under section 306 of the Indian Penal Code by invoking
section 113-A of the Evidence Act. In the present case the Court placed reliance on Ramesh
Kumar v. State of Chhattisgarh6 and reiterated that to attract the applicability of Section 113-
A of the Evidence Act, three conditions are required to be fulfilled:

(i) the woman has committed suicide;

2
2019 SCC Online P&H 11
3
(2007) 11 SCC 205
4
(2010) 8 SCC 628.
5
2021 SCC Online SC 660
6
(2001) 9 SCC 618

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MEMORIAL ON BEHALF OF RESPONDENT
 (ii) such suicide has been committed within a period of seven years from the date of her
marriage;
(iii) the accused had subjected her to cruelty.

The Court observed that in the instant case all the three conditions stood fulfilled. The
deceased committed suicide within a period of seven years from the date of her marriage and
accused had subjected her to cruelty, as it was confirmed that prosecution was successful in
proving the charge of cruelty under Section 498-A IPC.

The Court held that

“It is no doubt correct that the existence and availability of the above said three
circumstances are not to be invoked like a formula to enable the presumption being
drawn and the presumption is not an irrebuttable one. However, in the instant case,
the evidence clearly established the offence of cruelty or harassment caused to the
deceased and, thus, the foundation for the presumption existed. Admittedly, the
appellants led no evidence to rebut the presumption.”

The Allahabad High Court in the case of Kranti Mishra vs State of U.P.7 observed that in the
present case the victim was harassed mentally and physically on various occasions, she was
pressurized to give her jewellery to which she refused and was beaten up by banging her head
against the wall and subjected to filthy language and threat of divorce.

The Court held that

“If some act either of omission or commission results in instigation to the victim to commit
suicide, that act would also be treated to be an abetment.”

The Bench relied upon the Supreme Court’s decision in Guru Charan Singh v. State of
Punjab8, wherein it was held that in order to give finding of abetment under Section 107,
which is necessary to sustain the conviction of abetment of suicide under Section 306 IPC, it
must be established that the accused instigated a person either by an act of omission or
commission or by persistent cruelty or harassment.

7
2021 SCC Online All 81
8
(2020) 10 SCC 200

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MEMORIAL ON BEHALF OF RESPONDENT
Thus, the counsel for the respondent humbly submits that the appellants should be held liable
under section 306 of the Indian Penal Code, 1860 as the pre-requisites of the section are met
with and the hon’ble district judge was correct in sentencing the appellants for rigorous
imprisonment of eight years.

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MEMORIAL ON BEHALF OF RESPONDENT
CONTENTION 2: WHETHER THE APPELLANTS CAN BE CONVICTED ON THE
BASIS OF DYING DECLARATION OR NOT?

The counsel for the respondent humbly submits before this hon’ble Court that the dying
declaration made by the deceased wife holds ample corroboration to convict the appellants.

That the concept of dying declaration under section 32(1) in The Indian Evidence Act, 1872 is
one of the exceptions to the general rule prescribed in Section 60 in the Evidence
Act,1872 which explains that oral evidence in all instances must be direct i.e., it must be the
evidence of testimony. Even though a dying declaration has not been made under oath and the
person making it cannot be cross-examined still it is accepted in the court. 

It comes from the legal maxim “Nemo moriturus praesumitur men tire”, which means “a man
will not meet his maker with a lie in his mouth”. The statements made by a deceased person
before his death where the person describes the cause of his death or as to circumstances that
leads to his death is called a dying declaration.

That in Jayamma & Anr. vs State of Karnataka 9 the Supreme Court addressed the issue of
dying declaration being the sole basis of conviction. The Court held that to consider a dying
declaration as to the basis for conviction, it must fulfil certain criteria-

- For the declaration to have such a huge impact on the conviction, it must not be a
product of imagination. This in turn means that any kind of tutoring or prompting
must not present when the declaration was given. It must be a statement
voluntarily made by the person making it and must be true.
- The state of mind of the person making such a statement must be fit. They must
not be mentally unsound. It is also important that the person making such a
declaration understand the ramifications of their declaration.

That the Supreme Court in Kushal Rao vs The State of Bombay 10 established the following
principles regarding dying declaration.:

9
  Criminal Appeal No. 758 of 2010
10
1958 AIR 22

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MEMORIAL ON BEHALF OF RESPONDENT
 - There is no absolute rule of law that states that a dying statement cannot be used as
the sole ground for conviction unless it is backed up by other proof. A real and
voluntary declaration that is free from compulsion needs no corroboration.
- Each case must be determined after seeing the fact and circumstances of the case
in which the dying declaration was required.
- A dying declaration is not weaker evidence than any other form of evidence.
- A dying declaration, like any other piece of evidence, must be assessed in view of
the surrounding circumstances and in accordance with the rules regulating the
weight of evidence.
- A dying declaration recorded in an appropriate manner, that is, in a question-and-
answer method, by a competent magistrate and as far as possible in the words of
the declarant, will stand on the higher footing rather than a dying declaration
which depends on oral testimony, which is susceptible to many of the flaws in
human memory and character.
-  To test the reliability of a declarant the court must keep in mind the circumstances
like the possibility of the dead man for observation.

In, State of Uttar Pradesh vs Ram Sagar Yadav and Ors11, the Apex court held that the
primary effort of the Court must be to see if the dying declaration is authentic. If the court can
find that there is no need for further corroboration.

In Naresh Kumar v. Kalawati12, the Supreme Court held that there cannot be any rigid
standard or yardstick for acceptance or rejection of a dying declaration and whether or not it
will be admissible in evidence will depend upon the fact of each case. Explaining the law
relating to admissibility of dying declaration under Section 32 of the Evidence Act, 1872, the
Court held that it alone can also form the basis for conviction if it has been made
voluntarily and inspires confidence. 

“If there are contradictions, variations, creating doubts about its truthfulness,
affecting its veracity and credibility or if the dying declaration is suspect, or the
accused is able to create a doubt not only with regard to the dying declaration but

11
1985 SCR (2) 621
12
Criminal Appeal 35 of 2013

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MEMORIAL ON BEHALF OF RESPONDENT
 also with regard to the nature and manner of death, the benefit of doubt shall have to
be given to the accused. Therefore, much shall depend on the facts of a case.”

The Jharkhand High Court in Dijan Mandal v. State of Bihar13, the Court noted that the
dying declaration was recorded by following the proper procedure. Although the witnesses
turned hostile and the dying declaration was not corroborated, yet the fact remained that there
was no contradiction between the dying declaration and the first statement given by the
deceased. The Court held that the dying declaration inspired confidence. Considering the
evidence of the Investigating Officer, the doctor, the Magistrate and considering the sharp
nature of injuries sustained by the deceased, the Court held that the guilt of the appellant
under Section 302 was proved. Hence, the impugned judgment of the trial court was upheld,
and the appeal was dismissed.

The question before Court in Amin v. State of Rajasthan14, was that the statement recorded as
dying declaration under Section 164 of the Code of Criminal Procedure, 1973 recorded by the
magistrate the entire case should rest upon it.

The Court relied on the case Muthu Kutty v. State of T.N.15, where Supreme Court laid down
that though the dying declaration is of great value and importance, the accused is left with no
power of cross-examination. The Court has to be on guard

“That the statement of deceased was not as a result of either tutoring or prompting or
a product of imagination”. 

In another case of Munnu Raja v. State of M.P.16, the Supreme Court laid down that there is
neither rule of law nor of prudence that dying declaration cannot be acted upon without
corroboration.

The Court opined that the dying declaration in this case was obtained by all legal means as it
was recorded by magistrate under Section 164 of the Code of Criminal Procedure, 1973 and

13
2018 SCC Online Jhar. 417
14
2019 SCC Online Raj 3945
15
(2005) 9 SCC 113 
16
(1976) 3 SCC 104

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MEMORIAL ON BEHALF OF RESPONDENT
the doctor deemed her fit to give statement and it was also signed by doctor and moreover no
reason was established of her to such a thing in her death bed.

That the counsel for the respondent would like to bring to notice of the hon’ble Court that the
dying declaration made by the deceased wife to the Magistrate under proper procedure and
full knowledge. It was made voluntarily describing the sad state of affairs that the respondent
was subjected to on a daily basis by her mother-in-law and her husband. It was a result of that
the respondent took the step of committing such a grave act and the appellants should be held
liable for the same.

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MEMORIAL ON BEHALF OF RESPONDENT
 PRAYER

In the light of the facts of the case, issues raised, arguments advanced, and authorities cited,
the Counsel for the Respondent humbly prays before this Hon’ble Court to kindly adjudge
and declare that:

1. That the appellants should be held liable under section 306 of the Indian Penal
Code, 1860 for abetment of suicide of the respondent
2. The appellants should be convicted on the basis of dying declaration made by the
respondent.

And to further pass any other order that the Hon’ble Court may deem fit.

And for this act of kindness, the Counsel on behalf of the Respondent as duty bound shall
forever pray.

ALL OF THIS IS RESPECTFULLY SUBMITTED

________________________________

COUNSEL FOR THE RESPONDENTS

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MEMORIAL ON BEHALF OF RESPONDENT