TC-05

8TH ARMY LAW SCHOOL

NATIONAL MOOT COURT COMPETITION
“CHECKMATE 2018”

BEFORE,
THE HON’BLE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

[UNDER ARTICLE 136 OF THE CONSTITUTION OF UNION OF
DUSTAN]
SPECIAL LEAVE PETITION (CRIMINAL) NO. _______/2018

IN THE MATTER OF
UNION OF INDIA…..............................................……..
(APPELLANT)
V.
MIDHUN DORJEE …………………………...…(RESPONDENT NO. 1)
AND
RAMAN RAI ……………………………..……..(RESPONDENT NO. 2)
AND
FINTECH SOLUTIONS PVT. LTD. ………………(RESPONDENT NO.
3)

IN THE MATTER UNDER § 302, § 306 & § 120B § 107 OF

THE INDIAN PENAL CODE, 1860.

ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT

8TH ARMY LAW SCHOOL NATIONAL MOOT COURT COMPETITION, ‘CHECKMATE 2018’
~ Memorandum for Appellant ~

~ SUBMISSION ON BEHALF OF THE APPELLANT ~

LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
& AND
§ SECTION
§§ SECTIONS
¶ PARAGRAPH
¶¶ PARAGRAPHS
Anr ANOTHER
A.P. ANDHRA PRADESH
AC/ APP. CASE APPEAL CASES
AIR ALL INDIA REPORTER
ART. ARTICLE
BOM. BOMBAY
CAL. CALCUTTA
CRI LJ/ CR LJ CRIMINAL LAW JOURNAL
CR LR CRIMINAL LAW REVIEW
D.E.A DUSTAN EVIDENCE ACT, 1872
DEL DELHI
D.P.C. DUSTAN PENAL CODE, 1860
DPP DIRECTOR OF PUBLIC
PROSECUTOR
DW DEFENCE WITNESS
ED. EDITION
FIR FIRST INFORMATION REPORT
GOVT. GOVERNMENT
H.P. HIMACHAL PRADESH
HC HIGH COURT

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HON‟BLE HONOURABLE
IEA INDIAN EVIDENCE ACT
IPC INDIAN PENAL CODE
KANT. KARNATAKA
KER. KERALA
LD. LEARNED
LTD. LIMITED
M.P. MADHYA PRADESH
NAG. NAGALAND
N.C.T. NATIONAL CAPITAL TERRITORY
ORI. ORISSA
ORS. OTHERS
P&H PUNAJB AND HARYANA
P./PG. PAGE
PUNJ. PUNJAB
PVT. PRIVATE
PW PROSECUTION WITNESS
RAJ. RAJASTHAN
RS. RUPEES
SC SUPREME COURT
SCC SUPREME COURT CASES
SUPP. SUPPLEMENTARY
U.O.I UNION OF INDIA
U.P. UTTAR PRADESH
US UNITED STATES
V. VERSUS
W.B. WEST BENGAL
WLR WEEKLY LAW REPORT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES................................................................................................7

CASES…………………………………….............................................................................…7

BOOKS......................................................................................................................................11

JOURNALS…………………………………………………………………………………………………………..........11

CONSTITUTIONAL PROVISIONS.............................................................................................12

INDIAN STATUTES……………………………………………………………………………………………….........12
WEB RESOURCES....................................................................................................................12
STATEMENT OF JURISDICTION ....................................................................................13

STATEMENT OF FACTS ....................................................................................................14

STATEMENT OF ISSUES....................................................................................................17

SUMMARY OF ARGUMENTS............................................................................................18

ARGUMENTS ADVANCED.................................................................................................20
THE SPECIAL LEAVE PETITION IS MAINATAINABLE ………..……………….….20
[1.1] THAT THE GRAVE INJUSTICE HAS BEEN DONE …….…………………………………….
…….20
[1.1.1] THE JUDGMENT PASSED BY THE HON’BLE SC IS A REVIEWABLE
JUDGMENT……....21
[1.2] THAT THE APPELLANT HAS LOCUS STANDI………………………………………………….
…..21
[1] WHETHER THE ACCUSED ARE INDIVIDUALLY LIABLE………………..………..22
[2.1] THAT THE ACCUSED ARE LIABLE U/S 120B OF THE IPC ………………...…..….……...……22
[2.1.1] THAT THERE WAS CRIMINAL CONSPIRACY ON THE PART OF THE ACCUSED ……….23
[2.2] THAT THE ACCUSED ARE GUILTY FOR MURDER U/S 302 OF IPC ……...………………….24
[2.2.1] MENS REA TO COMMIT MURDER IS ESTABLISHED........... …………………………………25
[2.2.2] ACTUS REUS TO COMMIT MURDER IS ESTABLISHED......……………………………….….27
[2.3] THAT THE ACCUSED IS GUILTY OF ABBETTING SUICIDE…… ……………………………..28
[2.3.1.] THAT THE ACUSED INSTIGATED THE DECEASED TO COMMIT SUICIDE...................29

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[2] FINTECH SOLUTIONS PVT. LTD. IS CRIMINALLY LIABLE ……………….30

[3.1 MENS REA OF THE DIRECTOR WAS ESTABLISHED..............................................………….30
[3.2] THE IDENTIFICATION PRINCIPLE IS APPLICABLE IN THE PRESENT CASE...................31
[4] THE ACCUSED IS LIABLE TO PAY COMOENSATION FOR THE DEATH OF JAY
TYAGI ………………………………………...33
[4.1] THE HON’BLE HIGH COURT WAS NOT JUSTIFIED IN ACQUITTING THE
ACCUSED..............................................................................................................................................34
[4.2] THE ACCUSED IS LIABLE TO PAY COMPENSATION U/S 357 OF CRPC, 1973...................34
[4.2.1.] PERSONS ENTITLED TO GET COMPENSATION................................................................36
[4.3] THE CENTRAL GOVT IS LIABLE TO PAY COMPENSATION.................................................38

PRAYER………………………………………………………………………….…………41

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INDEX OF AUTHORITIES

SR. NO. CASES

1. State of Maharashtra v. MH George, AIR 1965 SC 722
2. Bugdaycay v. Secretary of State, (1987) 1 All ER 940.
3. R (Pretty) v. DPP, (2002) 1 All ER 1.
4. State of A.P. v. Challa Ramakrishna Reddy, AIR 2000 SC 2083.
5. State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840
6. M/s Variety Emporium v. R.M. Mohammad Ibrahim, AIR 1985 SC 207
7. Subedar v. State of UP, AIR 1971 SC 125.
8. Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26.
9. Sadhu Singh v. Pepsu, AIR 1954 SC 271.
10. Pritam Singh v State, AIR 1950 SC 169: (1950) SCR 453.
11. Hem Raj v State of Ajmer, AIR 1954 SC 462: (1956) SCR 113.
12. Sadhu Singh v State of Pepsu, AIR 1954 SC 271.
13. Nisar Ali v State of U.P., AIR 1957 SC 366: 1957 SCR 657.
14. State of U.P.v Ram Swarup, AIR 1974 SC 1570: (1975) 1 SCR 409.
15. Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC)
16. C.C.E v Standard Motor Products, AIR 1989 1298 SC 1298
17. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC
214 (SC).
18. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC
214 (SC)
19. Dhakeswari Cotton Mills Ltd. V. CIT, Bengal 1955 SCR (1) 941
20. Arunachalam v. P.S.R. Setharatnam AIR 1979 SC 1284
21. Delhi Judicial Service Assn. V. State of Gujarat, (1991) 4 SCC 406
22. R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821.
23. State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744
24. Ram Narain v. State of Rajasthan, (1973) SCC (CRI) 545
25. CBI/SIT v. Nalini & Ors., (1999) 5 SCC 253
26. Chandrasenan v. State of Kerala, AIR 1995 SC 1066

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27. Firozuddin Basheeruddin & Ors. V. State of Kerala, (2001) 7 SCC 596.
28. Esher Singh v. State of Andhra Pradesh, AIR 2004 SC 3030.
29. Sanwat Khan vs State of Rajasthan AIR 1956 SC 54.
30. Ramashraya vs State of Madhya Pradesh AIR 2001 SC 1129.
31. Settu vs State of Tamil Nadu 2006 Cri LJ 3889 (3893).
32. Dayanand v. State of Haryana, AIR 2008 SC 1823.
33. Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1,
4
34. State of Maharashtra v Meyer Hans George, AIR 1965 SC 722
35. State v Dinakar Bandu (1969) 72 Bom LR 905.
36. Bakhtawar vs State of Haryana AIR 1979 SC 1006
37. State of Punjab v Sucha Singh, AIR 2003 SC 1471
38. Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175, 74
39. State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
40. Gul Mohummed vs King Emperor AIR 1947 Nag 121
41. Chander Bahadur Suha vs State 1978 Cr LJ 942 (Sikkim).
42. Haughton vs Smith (1973) 3 All ER 1109.
43. Naseem Ahmed v. Delhi Administration, AIR 1974 SC 691;
44. Sharad Birdhichand and Sarda v. State of Maharashtra, AIR 1984 SC 1622.
45. State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840
46. Bakshish Singh v State of Punjab, AIR 1971 SC 2016
47. Ramesh Kumar vs State of Punjab AIR 1994 SC 945
48. State of Punjab v. Iqbal Singh, AIR 1991 SC 1532.
49. Surender v. State of Hayana, (2006) 12 SCC 375
50. Kishori Lal v. State of M.P., AIR 2007 SC 2457
51. Sonti Rama Krishna v. Sonti Shanti Sree, AIR 2009 SC 923.
52. Wazir Chand v. State of Haryana, AIR 1989 SC 378
53. M. Mohan v. State, Represented by the Deputy Superintendent of Police (2011)
3 SCC 626: 2011(3) SCALE 78: AIR 2011 SC 1238.
54. Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707.
55. Rakesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618.

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56. Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750.
57. Thanu Ram v. State of M.P., 2010 (10) SCALE 557: (2010) 10 SCC 353:
(2010) 3 SCC 1502(Cri).
58. S.S. Chheena v. Vijay Kumar Mahajan & Anr, (2010) 12 SCC 190
59. Sohan Raj Sharma v. State of Haryana, AIR 2008 SC 2108: (2008) 11 SCC 215.
60. Dammu Sreenu v. State of A.P., AIR 2009 SC 3728; (2009) 14 SCC 249
61. Asha Shukla v. State of U.P. 2002 CrLJ 2233.
62. Parimal Chatterji v. Emperor 140 Ind. Cas.787.
63. Chitresh Kumar Chopra v. State (Government of NCT of Delhi), AIR 2010 SC
1446.
64. Kishangiri Mangalgiri Goswami v. State of Gujarat, (2009) 4 SCC 52 : (2009) 1
SCR 672 : AIR 2009 SC 1808 : 2009 0 Cri.L.J 1720
65. Rajib Neog v. State of Assam, 2011 crlj 399(Gau)
66. Joplin Mercantile Co. V. United States, 213 Fed. 926 (C. C. A. 8th, 1914
67. Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530
68. Lennard’s Carrying Co. Ltd. V. Asiatic Petroleum Co., [1915] A.C. 705, 713
(H.L.).
69. DPP v Kent and Sussex Contractors Ltd, [1944] 1 ALL ER 119
70. Tesco Supermarkets Ltd v Nattrass, [1972] AC 153 at 170
71. Meridian Global Funds Management Asia Ltd v Securities Commission, [1995]
2AC 500,PC
72. US v Jorgensen, 144 F3d 550.
73. Sawarn Singh v. State of Punjab, AIR 1978 SC 1525
74. Hari Singh and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127
75. Smt. Bachahan Devi and Anr. V. Nagar Nigam, Gorakhpur and Anr. (AIR 2008
SC 1282)
76. Dhampur Sugar Mills Ltd. V. State of U. P. And Ors. ((2007) 8 SCC 338.)
77. Shri Gopal and Others v. Mt. Amba Devi, AIR 1914 Lah 354.
78. Ramesh Chandra and Others v. Madhya Pradesh State Transport Authority and
Others, AIR 1982 MP 165
79. Kuppammal v. Rukamani Ammal and Anr, AIR 1946 Mad 164.
80. Hari Singh v Sukhbir Singh and Ors, (1988) 4 SCC 551.
81. Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770.
82. Ashwani Gupta v. Government of India, 2005 (117) DLT 112.

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83. Manohar Singh v. State of Rajasthan and Others, (2015) 3 SCC 449.
84. Nilabati Behera v. State of Odisha (1993) 2 SCC 746.
85. Vijagan v. Sadanandan, 2009 (6) SCC 652.
86. State of Madhya Pradesh v. Mangu, 1995 CrLJ 3852.
87. Suresh and Anr. V. State of Haryana, (2015) 2 SCC 227.

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SR. NO. BOOKS

1. S.K. SARVARIA, RA NELSON’S INDIAN PENAL CODE, (10th ed., Lexis
Nexus LexisNexis Butterworths Wadhwa)
2. K.I VIBHUTE, PSA PILLAI'S CRIMINAL LAW, (12th ed., LexisNexis)
3. SURENDRA MALIK, SUPREME COURT ON PENAL CODE, (2ed.
Eastern Book Company)
4. S.N.MISRA, THE CODE OF CRIMINAL PROCEDURE, (19th ed., Central
Law Publications)
5. SUDIPTO SARKAR & V R MANOHAR, LAW OF EVIDENCE, (17th ed.,
LexisNexis Butterworths Wadhwa)
6. MODI’S MEDICAL JURISPRUDENCE AND TOXICOLOGY, (23rd ed.,
LexisNexis)
7. RAM JETHMALANI & D.S CHOPRA, THE LAW OF EVIDENCE, (1st ed.,
Thomson Reuters)
8. MP jain
9. JUSTICE CK THAKKER, JUSTICE S S SUBRAMANI, JUSTICE T S
DOABIA, JUSTICE B P BANERJEE, COMMENTARY ON THE
CONSTITUTION OF INDIA D D BASU, (8th ed., LexisNexis Butterworths
Wadhwa)
10. K.M.GHOSH AND Dr. K.R.CHANDRATRE’S, COMPANY LAW, (14TH
ed, Bharat Law House.
11. Dr. G.K. KAPOOR, SUNJAY DHAMIJA, COMPANY LAW AND
PRACTICE (30TH ed. Taxmann Publications Pvt. Ltd.)
12. AVTAR SINGH, COMPANY LAW, (15th ed, Eastern Book Company)
13. RODNEY D. RYDER, GUIDE TO CYBER LAWS, (2nd ed, Wadhwa And
Company.

SR. NO. JOURNALS

1. HALSBURY’S LAWS OF INDIA, 2005, (1st ed. LexisNexis Butterworths)
2. LORD HAILSHAM OF SAINT NARYLEBONE, HALSBURY’S LAWS OF
ENGLAND, 1976 (4TH ed., Butterworths)

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SR. NO. CONSTITUTIONAL PROVISIONS

1. ARTICLE 136
2. ARTICLE 21

SR. NO. INDIAN STATUTES

1. Indian Penal Code, 1860
2. Indian Evidence Act, 1872
3. Code of Criminal Procedure, 1973
4. Information Technology Act, 2000.
5. Companies Act, 2013

SR. NO. WEB RESOURCES

1) www.westlaw.india.com (WEST LAW INDIA)
2) www.manupatrafast.com (MANUPATRA)
3) www.jstor.org (JSTOR)
4) www.scconline.com (SCC ONLINE)

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STATEMENT OF JURISDICTION

THE APPELLANT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF INDIA, THE MEMORANDUM FOR THE APPELLANT IN
PETITION FILED BY APPELLANT UNDER ARTICLE 136 (SPECIAL LEAVE
PETITION) OF THE CONSTITUTION OF INDIA, 1950.

Article 136:-
Special leave to appeal by the Supreme Court:-
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE

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STATEMENT OF FACTS

 Background of Midhun Dorjee: Midhun Dorjee belonged to a middle class family from
Sikkim. His childhood was not full of pleasant memories as his father was a habitual
drinker and used to beat him and his mother regularly. As a reaction to his father’s
behaviour, he used to vent his anger by bullying younger children and other’s pet animals.
Midhun was introduced to the computer for the first time in 9 th class and he found very
fascinating. However, in order to relieve himself from the stress at home, he started
playing online games and after completing the challenges, he would feel that he had
achieved something and felt motivated.
Midhun was hired during one of the campus placement drives, by a famous company
called ‘Enotech Soluttions’ for a handsome salary as a software developer.
 Life at Enotech Solutions: In Enotech Solutions, Midhun met Raman Rai who was his
colleague and was equally hardworking. Both of them developed a lot of new software
which brought great profits to the company. Eventually, they got to know that the
softwares they were developing was sold by much higher price by the company as
compared to what he was being paid. They felt cheated and approached the management
for salary hike, but were refused for it.
These new developments would affect Midhun mentally as he would feel irritated, his
head would hurt constantly and as a reaction, he would vent his anger on his driver and
other staff as well unkown people, though Raman Rai felt that this was not mature
behaviour.
 Fintec Solutions Pvt Ltd: Aggrieved by the refusal from the company for better
emoluments and profits, both of them left the company and worked on a new start up by
the name Fintech Solutions Pvt Ltd with the agreement that any decision or work done by
either of the directors would be accepted by the other. Within a few years their enterprise
was doing very well and the profits was very good.
 Ridhi Mehta: During one of his business meetings he came across a girl named Ridhi
Mehta and they both grew fond of each other. And after some time Midhun started trusting
her and his confidence in her grew. And on 29 th Mar 2012, he received a mail from Ridhi
giving the outlines of a Business Plans and she also asked him to transfer large funds

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before New Year Began. Accordingly without reviewing the plan he transferred an amount
up to Rupees 10.2 Million.
After the transfer was made there was no contact with Ridhi for many days and when
contacted she said that she is busy and she would get in touch herself. A week passed and
there was no response from her and later on he found out that the phone number did not
exist.
 After maths of the said incident: When he shared the information to Raman Rai, he
rebuked Midhun for lending such a large amount of money from the Company Accounts.
These events affected him intensely and led to an unstable mind. He started hallucinating
things like people around him asking him to cleanse the society and that had wronged him.
He started seeing a psychiatrist who recommended him strong remedial drugs. In this
period of hopelessness and despair of hyper activity he developed an online game called
Challenges Unlimited.
 Challenges Unlimited: The objective of this game was to uplift the morale of the
depressed people and to earn revenue for the company simultaneously. The details of the
game were that a player had to pay Rupees 25000 for registration by providing some
personal details. And there were 10 tasks which are to be completed by the Players and in
completion, a certain sum of money was to be credited to their account.

The levels were as follows.

1. Consume 5 jalapeno peppers within 1 minute. Cash prize of Rs. 1000.
2. Shave your head. Cash prize of Rs 2000.
3. Watch a horror movie on a laptop at a graveyard alone. Cash prize of Rs 5000
4. Start your own death rumor or a rumor of you being gay/lesbian on your social
media account. Cash prize of Rs 10000
5. Go and attack a policeman at a public place and escape without being caught. Also
the act has to be filmed by a friend. Cash prize of Rs 25000.
6. Injure yourself with a sharp knife by making 12 inch long and .5 inch deep cut on
the arm and show OPD slips as proof. Cash prize of Rs 50000
7. Extract your own blood (100 ml), on video and drink it. Cash prize of Rs 75000.
8. Catch a venomous snake with your bare hands and kill, cook and eat it. Cash prize
of Rs 1. Lac.

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9. Go to any hospital and in the ICU, withdraw the life support system of any patient
and record it. Cash prize Rs1.5 lac
10. Write a note indicating your intention and giving your consent, after which slash
both your wrists while sitting in a locked room at exactly 12 a.m. Cash prize Rs 3
lacs. (The last amount shall be credited into your account after confirmation of
your demise).
This game became very popular and earned a lot of Profits. When Raman Rai, the
other Director was informed about the game he confronted Midhun and did not
approve of this at all.
 Death of Jay Tyagi: In the year 2015, a criminal case was filed by Mr Tyagi whose
16th year old son was found dead with his wrist slashed in his bedroom. On further
investigation it came about that he was a very bright student and used to borrow his
friends laptop and from that it was recovered that a sum of Rs. 25000 was transferred.
The Forensic team could not determine the end location. But on further investigation,
shadow accounts came up in the name of ‘fintech solution Pvt Ltd’. Moreover, Mrs
Tyagi did not disclose to the Police about the Amount of money being credited
periodically in her joint Account with Jay. The police filed an Inquest report and
compensation was sought for.
 Judgment of the Hon’ble Sessions Court: The learned Sessions Court convicted
both Midhun Dorjee as well as Raman Rai and sentenced them to 10 years RI and a
fine of Rs.100000 each in addition to a fine of Rs. 500000 on the company.
 Judgment of the Hon’ble High Court: On appeal the Hon’ble High Court acquitted
both accused giving them the benefit of doubt, nevertheless the quantum of fine on
the company was reduced to Rs. 300000.
 The Suo Moto action by the Supreme Court: In the meantime the Supreme Court
taking suo moto action with respect to the Game and the number of deaths that were
reported in India issued a notice that any new matter with relation to the game was not
to be taken up. The Court also sent a notice to the Centre and asked for a reply within
a month. Also certain states banned the game.

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STATEMENT OF ISSUES

1. WHETHER THE SPECIAL LEAVE PETITION FILED BY

APPELLANT AT SUPREME COURT OF INDIA IS MAINTAINABLE?

2. WHETHER THE ACCUSED ARE INDIVIDUALLY LIABLE UNDER

SECTIONS 302 AND 306 OF IPC?

3. WHETHER FINTECH SOLUTIONS PVT LTD IS CRIMINALLY

LIABLE?

4. WHETHER THE VICTIM IS ENTITLED TO COMPENSATION FOR

THE DEATH OF JAY TYAGI?

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SUMMARY OF ARGUMENTS

[1.] THAT THE PETITION FILED BEFORE THE SUPREME COURT OF INDIA IS
MAINTAINABLE.

It is most humbly submitted before this Hon’ble Supreme Court of INDIA that this special
leave petition is maintainable in this Court under Article 136 of the Constitution of INDIA
against or in any judgment, decree, determination, sentence or order, in any case of matter,
passed or made by any Court or tribunal in the territory of INDIA, in special and exceptional
circumstances where there is grave injustice. In this case the erroneous judgment of the High
Court has been challenged and established that there has been grave injustice as the Article 21
of the deceased is violated and by establishing the locus standi of the Appellant.

[2.] THAT THE ACCUSED ARE INDIVIDUALLY LIABLE.

It is humbly submitted both the accused had entered into an agreement where a work or
decision made by one director will be accepted by other. Therefore, both the accused can be
liable under section 120B of IPC. That the mens rea and the actus reas of both the accused
have been proved beyond all the reasonable doubts and because of the forensic reports that
proves the transaction of money from the deceased back account to the company account
completes the circumstantial evidence. Thus, both the accused are liable under 302 of IPC. It
further submitted that the accused instigated the deceased to commit suicide by providing a
heavy amount of money and the game was created in such a manner that one would easily
conclude it as mere suicide which proved the mens rea. Therefore they both can be liable
under 306 of IPC as well.

[3.] THAT THE COMPANY FINTECH SOLUTIONS IS CRIMINALLY LIABLE.

It is humbly submitted before this Hon’ble Court that the ‘Fintech Solutions Pvt Ltd’ should
be held criminally liable for discharging its duties against the best interest of the society.
Since, corporation do not have a mind of its own, its active and directing will must
consequently be sought in the person or somebody who has attributed to discharge the duties
of the company. Directors owe their companies a duty of good faith and duties of care and
skill and must act in the best interest of the company.

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[4.] THAT THE VICTIM IS ENTITLED TO GET COMPENSATION.

It is humbly submitted before the Hon’ble Court that the accused are liable to pay
compensation to the parents of Jay Tyagi, who are the Victim within the definition of Sec
2(wa) of CRPC. The crime committed is in gross violation of right to life of the victim and to
the principles of the society. The court must apply its mind and exercise its power to award
compensation so as to reassure the victim that he or she is not forgotten in the criminal justice
system.

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ARGUMENTS ADVANCED

[1] THAT THE PETITION FILED IN THE SUPREME COURT OF INDIA

IS MAINTAINABLE.

(¶1.) It is humbly submitted before this Honourable court that the present SLP filed by the
appellant is maintainable in the Hon’ble Supreme Court [hereinafter reffered to as SC] under
Article 136 of the Constitution of India. Article 136 of the Constitution elucidates that
Special leave to appeal by the SC –
(1) Notwithstanding anything in this chapter, the SC may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence
or order passed or made by any court or tribunal constituted by or under any law
relating to the Armed forces.

This SLP is maintainable as, Grave injustice has been done [1.1], the Appellant has locus
standi to approach the Hon’ble SC [1.2]

[1.1.] THAT THE GRAVE INJUSTICE HAS BEEN DONE

(¶2.) It is most humbly submitted before this Hon’ble Court that the game propounded by the
accused is affecting the public interest as this became a popular game and a lot of youth
started playing this game. In the future it might set a precedent for developing games like
these by other people.
(¶3.) Also the SC does not interfere with the findings of HC on acquittal unless such finding
is clearly unreasonable, or unsatisfactory or perverse, or manifestly illegal or grossly unjust
or is vitiated by some glaring infirmity in the appraisal of evidence or the HC completely
misdirects itself in reversing the order of conviction by the Trial Court or it results gross
miscarriage of justice.1 If the appellant proves that a concurrent decision of two or more
courts or tribunal is manifestly unjust, it will be the duty of SC to remedy the injustice. 2 Thus

1
State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840
2
M/s Variety Emporium v. R.M. Mohammad Ibrahim, AIR 1985 SC 207.

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when the judgment under appeal has resulted in grave miscarriage of justice by some
misapprehension or mistake in the reading of evidence or by ignoring material evidence then
it is not only empowered but is expected to interfere to promote the cause of justice. 3
[1.1.1.] VIOLATION OF ARTICLE 21

(¶4.) Right to life is the most fundamental of all human rights, and any decision affecting
human life, or which may put an individual’s life at risk, must call for the most anxious
scrutiny.4

(¶5.) The sanctity of human life is probably the most fundamental of the human social values.
It is recognized in all civilized societies and their legal system and by the internationally
recognized statements of human rights.5 Right to life is one of the basic human rights and not
even the State has the authority to violate the right. 6 Article 21 is a repository of all important
human rights, essential for a person or a citizen.

(¶6.) The whole system of Justice will be defeated if the accused persons are acquitted as this
judgment would be an excuse for such other citizens to take life’s of other people in the veil
of an online game and blaming it on the participants that they had given consent. Hence the
High Court’s reversal of Order would result in Miscarriage of Justice.

[1.2] THE APPELLANT HAS LOCUS STANDI TO APPROACH THE HON’BLE SC

(¶7.) It is humbly submitted before this Hon’ble SC that the appellant has locus standi to
approach the court in the present case. Article 136 of the Constitution is couched in the
widest phraseology.7 This Court's jurisdiction is limited only by its discretion. 8 It is pertinent
to note that the scope of Article 134 of the Constitution of India providing appeals to the
Hon’ble SC in criminal matters is limited whereas Article 136 is very broad-based and
confers discretion on the court to hear “in any cause or matter”. Therefore, criminal appeals
may be brought to the Hon’ble SC under article 136 when these are not covered by Article
134.9

3
Subedar v. State of UP, AIR 1971 SC 125.
4
Bugdaycay v. Secretary of State, (1987) 1 All ER 940.
5
R (Pretty) v. DPP, (2002) 1 All ER 1.
6
State of A.P. v. Challa Ramakrishna Reddy, AIR 2000 SC 2083.
7
Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26.
8
Ibid.
9
Sadhu Singh v. Pepsu, AIR 1954 SC 271.

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(¶8.) In a criminal case, the supreme court will grant special leave to appeal only in those
cases where it is shown that exceptional and special circumstances exists or that substantial
and grave injustice has been done or that the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against. 10 It would not grant special leave
to appeal on grounds which would not sustain the appeal itself 11, that is, unless it is manifest
that, by a disregard of the forms of legal process or by violation of the principles of natural
justice or otherwise, substantial and grave injustice has been done12.

(¶9.) Article 136 is the residuary power of SC to do justice where the court is satisfied that
there is injustice.13 The principle is that this court would never do injustice nor allow injustice
being perpetrated for the sake of upholding technicalities.14

(¶10.) This case establishes the position that the powers of the SC in appeal under article 136
are not restricted by the appellate provisions contained u/s 378 Cr.PC. Hence, in the present
case appellant has locus standi to approach the Honourable SC.

The extent of injustice caused to the deceased demands the intervention of the Honourable
Apex Court. Hence, the present petition is maintainable.

[2.] THAT THE ACCUSED ARE INDIVIDUALLY LIABLE.

The accused are individually liable for the murder of Jay Tyagi. The following issue is
addressed as under:
[2.1] THAT THE ACCUSED ARE LIABLE U/S 120 B OF THE INDIAN PENAL CODE.
(¶11.) It is humbly submitted before the Hon’ble Supreme Court that both the accused had
common intention of earning revenue through developing the game and all the acts done by
them in furtherance of the common intention as each of them was to gain by the acts. The
accused are liable for criminal conspiracy as mentioned u/s 120 B of the IPC as all the illegal

10
Pritam Singh v State, AIR 1950 SC 169: (1950) SCR 453; Hem Raj v State of Ajmer, AIR 1954 SC 462:
(1956) SCR 113; Sadhu Singh v State of Pepsu, AIR 1954 SC 271.
11
Pritam Singh v State, AIR 1950 SC 169: (1950) SCR 453.
12
Nisar Ali v State of U.P., AIR 1957 SC 366: 1957 SCR 657.
13
C.C.E v Standard Motor Products, AIR 1989 1298 SC 1298, see also H.M. Seervai, Constitutional Law of
India (4th Ed. Vol.II 2010).
14
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC 214 (SC).

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acts were done to further their cause. The accused when decided make the game on behalf of
the company the other director also had implied consent and their aim to earn more profits
was being fulfilled.

(¶12.) For an offence u/s 120-B of IPC, the prosecution need not necessarily prove that the
conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be
proved by necessary implication15 . It is not necessary that each member of the conspiracy
must know all the details of the conspiracy. The offence can be proved largely from the
inferences drawn from the acts or illegal omission committed by the conspirators in
pursuance of a common design16.

[2.1.1] THAT THERE WAS CRIMINAL CONSPIRACY ON PART OF THE ACCUSED.

(¶13.) In the case of State of Maharashtra v. Som Nath Thapa17, this Court held:

“…the prosecution has not to establish that a particular unlawful use was intended.
The ultimate offence consists of a chain of actions, it would not be necessary for the
prosecution to establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator would do, so long as it is
known that the collaborator would put the goods or service to an unlawful use”

(¶14.) In the case of Ramnarain v. State of Rajasthan18, it was held that:

“…in almost every case of conspiracy it is a matter of inference, direct independent

evidence being seldom, if ever forthcoming. But inferences are normally deduced
from act of parties in pursuance of apparent criminal purpose in common between
them.”
The agreement may be proved either by direct evidence which is rarely available in
such cases or it may be inferred from utterances, writings, acts, omissions and
conduct of the parties to the conspiracy which is usually done. In view of § 10 of the
Evidence Act, 1872 anything said, done or written by those who enlist their support to
the object of conspiracy and those who join later or make their exit before completion
of the object in furtherance of their common intention will be relevant facts to prove
15
SARKAR, LAW OF EVIDENCE, 13th Ed, (1990), Page 491.
16
R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821.
17
State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744.
18
(1973) SCC (Cri) 545

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that each one of them can justifiably be treated as a conspirator. 19 These

conspiracies have to be inferred from the subsequent conduct of the parties and direct
evidence is almost impossible to be found.20
(¶15.) It is not only the agreement which says that they had a common intention, but also the
fact that when the accused Mr. Raman Rai came to know about the game and the profits he
was earning from the game, he just denied consent. Being a Director if he thought that the
work done by his fellow Director Mr Midhun Dorjee was illegal then he could have taken
steps to the other person to continue the game. In many cases we have seen that silence to
avoid his liability and show his transparency and that’s why through his subsequent conduct
it shows that he had a part in the criminal conspiracy.
The rationale of conspiracy is that the required objective manifestation of disposition
to criminality is provided by the act of agreement. Conspiracy is a clandestine
activity. Persons generally do not form illegal covenants openly.21
(¶16.) The above facts, succinctly point towards the clandestine way in which the various
acts were done, therefore strengthening the ground of a conspiracy between the accused, as
privacy and secrecy are more characteristics of conspiracy than a loud discussion in an
elevated place in public view.22
[2.2.] THE ACCUSED ARE GUILTY MURDER U/S SECTION 302 OF IPC?

(¶17.) It is humbly submitted that on perusal of the conditions of the online game it is quite
clear that to retain the participation the reward gets increased while the conditions gets
dehumanizing, unsocial and at length anti-social. The gradual completion of every step is
well-designed to drag the participant to commit suicide – clearly established the severity of
intention to take the revenge against the society without being directly be answerable and
traceable. As u/s .300(2), a person is guilty of committing murder if he acts with the
intention of causing such bodily injury which he knows to be likely to cause the death of the
person to whom such harm is caused. It is he felonious killing of another human being with
malice aforethought.23
(¶18.) Whether the offence falls u/s 302, I.P.C. or S. 304, I.P.C., the nature of the injuries
sustained by the deceased and the circumstances under which the incident took place are

19
CBI/SIT v. Nalini & Ors., (1999) 5 SCC 253.
20
Chandrasenan v. State of Kerala, AIR 1995 SC 1066.
21
Firozuddin Basheeruddin & Ors. v. State of Kerala, (2001) 7 SCC 596.
22
Esher Singh v. State of Andhra Pradesh, AIR 2004 SC 3030.
23
Sanwat Khan vs State of Rajasthan AIR 1956 SC 54.

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relevant factors. From the nature of the injuries and the origin and genesis of the incident, it
could be spelt out that all the ingredients of the offence of murder defined u/s 300, I.P.C are
made out and it is not possible to bring the offence within any of the five exceptions of S.
300, I.P.C.24
(¶19.) Under clause third of S. 300, IPC, culpable homicide is murder, if both the following
conditions are satisfied; i.e. (a) that the act which causes death is done with the intention of
causing death or is done with the intention of causing a bodily injury; and (b) that the injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be
proved that there was an intention to inflict that particular bodily injury, which in the ordinary
course of nature, was sufficient to cause death, viz. that the injury found to be present the
injury that was intended to be inflicted. Even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did
not extend to the intention of causing death, the offence would be murder. Illustration (c)
appended to S. 300 clearly brings out this point25.
(¶20.) In the present case, the accused had designed the game in such a manner that the
participants would register first and had to pay Rs 25,000 for registration. And until the
participant doesn’t complete the 9th stage he won’t be entitled for the refund of the
registration money. The account created for this purpose was a shadow account. The stages in
this game are such that they cause such injury which leads to death. The game was quite
famous amongst the young generation. And these people can be influenced easily. This game
was made in such a manner that itself provides a clear intention and knowledge of the
accused. Hence, the accused are liable for the murder of the Jai Tyagi.
[2.2.1] MENS REA TO COMMIT MURDER WAS PRESENT
(¶21.) Your Appellant begs to kind leave to mention that the facts make it palpably clear that
continuing inducement of the young immature minds of the victim in the guise of enhanced
amount of award gradually led the victim to self-incriminating actions what no man of
ordinary prudence can commit in normal vocation of life. That such inducement is devised by
the perpetrators so cautiously that no direct incriminating material could be made available
whereas on scrutinizing the chain of circumstantial evidences it can easily be concluded the
impact of inducement that degenerated a sportive and prospective young mind and eventually
engrossed in complying the conditions of the online game. That the transfer of reward money

24
Ramashraya vs State of Madhya Pradesh AIR 2001 SC 1129.
25
Settu vs State of Tamil Nadu 2006 Cri LJ 3889 (3893).

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to the account of victim’s mother on successful completion of every round played the
contributory role to repose faith upon the conditions of such online game.
(¶22.) That the actions of the perpetrators are sufficient enough to cause damage to the
human resources of the country and per se against the public policy and spirit of law. That the
participatory and contributory role of such inducement designed by the perpetrators upon the
victims that led to commit suicide should not be ruled out rather are sufficient inferences to
invoke the charges u/s. 120B r.w. s. 302, I.P.C. against the perpetrators. That this has not duly
been appreciated by the Honourable High Court in spite of the presence of such incriminating
materials on the record.
(¶23.) In the absence of any circumstances to show that injury was caused accidentally or
unintentionally, it is presumed that there was intention to cause the inflicted injury. 26 Mens
rea is considered as guilty intention 27 which is proved or inferred from the acts of the
accused28.
In the present case, there is no doubt that the death of deceased is non-natural death. It cannot
be accidental. This indicates that the accused has some active part in the death of the
deceased which makes a strong case against the accused for murder. It is 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. 29
(¶24.) And even the count finds that accused had no actual intention to cause death then it is
provided in Indian Penal Code that for the commission of the offence of murder, it is not
necessary that the accused should have the intention to cause death. It is now well settled that
if it is proved that the accused had the intention to inflict the injuries actually suffered by the
victim and such injuries are found to be sufficient in ordinary course of nature to cause death,
the ingredient of clause thirdly of S. 300 of the I.P.C are fulfilled and the accused must be
held guilty of murder punishable u/s 302 of the I.P.C.30
(¶25.) If we go through the various conditions of the game then it would be quite clear that
the various stages designed in the conditions of the online game are directed to establish the
victim on the first count to the perception of the public as insane and lastly the commission of
suicide by the victim is like act of insanity. What is more astonishing is the suicide note that
the perpetrators designed as elementary condition to be fulfilled before commission of suicide
26
Dayanand v. State of Haryana, AIR 2008 SC 1823.
27
Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4.
28
State of Maharashtra v Meyer Hans George, AIR 1965 SC 722.
29
State v Dinakar Bandu (1969) 72 Bom LR 905.
30
Bakhtawar vs State of Haryana AIR 1979 SC 1006.

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is just to disconnect the direct and proximate causal relation between. For instance in the 6 th
stage where you have to injure yourself by making a 12 inch long and 5 inch deep cut on your
arm. There is a possibility that while making cut the person might wrongly cut a very
important vein that might cause death.
(¶26.) 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
offence is concerned, and need not be established 31 as the mere existence of motive is by
itself, not an incriminating circumstance and cannot take the place of a proof. 32

(¶27.) 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. 33 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 34,
as in the current case.

[2.2.2.] ACTUS REUS TO COMMIT MURDER IS ESTABLISHED

(¶28.) Actus reus is any wrongful act.35 It is the conduct that constitutes a particular crime. 36
Every criminal act is based on actus reus and mens rea. The word "actus reus" connotes an
overt act. This is a physical result of human conduct, and therefore, an event which is
distinguished from the conduct which produced the result. In a murder case, it is the victim's
death which is an event and, therefore, is an actus reus. 37 The circumstantial evidence in a
case where there is a link of causation, if established, proves that the act was committed by
the person so accused.38

31
Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011).
32
State of Punjab v Sucha Singh, AIR 2003 SC 1471.
33
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175 74.
34
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC).
35
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006).
36
Gul Mohummed vs King Emperor AIR 1947 Nag 121; Chander Bahadur Suha vs State 1978 Cr LJ 942
(Sikkim).
37
Haughton vs Smith (1973) 3 All ER 1109.
38
Naseem Ahmed v. Delhi Administration, AIR 1974 SC 691; Sharad Birdhich and Sarda v. State of
Maharashtra, AIR 1984 SC 1622.

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(¶29.) 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 39, it is humbly
submitted 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 accused40.

[2.3.] THAT THE ACCUSED IS GUILTY OF ABETTING SUICIDE

(¶30.) It is most deferentially submitted before this Hon’ble Court that for a person to be
convicted of abetment of suicide u/s 306 of the Indian Penal Code 41, two essential ingredients
must be established:
a) The deceased committed suicide
b) The accused abetted her in committing suicide.
c) Direct involvement by the accused in such abetment or instigation is necessary
(¶31.) The first criteria has already been established with respect to the suicide.
Abetment contemplated in section 306 must conform to the definition given in section 107 of
the Indian Penal Code, according to which abetment can be brought about in three ways: by
instigation, conspiracy or intentional aid to the deceased. Be that as it may, in a case of this
nature, where a plea of suicide has been put forward, the Courts below should examine
42
whether such a plea is altogether untenable and whether suicide is ruled out. The offence of
abetment by instigation depends upon the intention of the person who abets and not upon the
act which is done by the person who has abetted. The abetment may be by instigation,
conspiracy or intentional aid as provided under 107 IPC.43The Supreme Court has reiterated
that before anybody can be punished for abetment of suicide, it must be proved that the death
in question was a suicidal death.44
(¶32.) Abetment involves a mental process of instigating a person or intentionally aiding a
person in doing a thing. Without a positive act on the part of the accused to instigate or aid in

39
State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840.
40
Bakshish Singh v State of Punjab, AIR 1971 SC 2016.
41
306. 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.
42
Ramesh Kumar vs State of Punjab AIR 1994 SC 945.
43
State of Punjab v. Iqbal Singh, AIR 1991 SC 1532; Surender v. State of Hayana, (2006) 12 SCC 375; Kishori
Lal v. State of M.P., AIR 2007 SC 2457; and Sonti Rama Krishna v. Sonti Shanti Sree, AIR 2009 SC 923.
44
Wazir Chand v. State of Haryana, AIR 1989 SC 378: 1989 Cr LJ 809: (1989) 1 SCC 244. Where the charge
was under s. 148/304 but was discharged and the accused persons were convicted under s. 304/107, this was
held to be wrong. Section 221(2) of CrPC can be invoked only in cases of cognate offences and not distinct
ones. Ramesh Chandra Mondal v. State of W.B., 1991 Cr LJ 2520Cal.

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committing suicide, conviction cannot be sustained.45 Here deceased committed suicide by

cutting wrist in his room which was the last stage of that game, which definitely made a
nexus between the conduct of the accused with the suicide by the deceased.46
[2.3.1.] THAT THE ACCUSED INSTIGATED THE DECEASED TO COMMIT SUICIDE

(¶33.) It is submitted before the Hon’ble Court that the accused ‘abetted’ the suicide of the
deceased by instigating him to commit suicide. The certain acts of the accused, which clearly
indicate his intention to instigate the victim to commit suicide, are relevant in the present
case.
Abetment contemplated in section 306 must conform to the definition given in section 107 of
the Indian Penal Code, according to which abetment can be brought about in three ways: by
instigation, conspiracy or intentional aid to the deceased.
(¶34.) It is humbly submitted that the law regarding offence of abetment to commit suicide is
clear. A person can be said to instigate another when he incites or otherwise encourages
another, directly or indirectly, to commit suicide. 47 The word ‘instigate’ means to goad or
urge forward or provoke, incite, urge or encourage to do an act.48
(¶35.) Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To
satisfy the requirement of "instigation", though it is not necessary that actual words must be
used to that effect or what constitutes "instigation" must necessarily and specifically be
suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be
capable of being spelt out. Where the accused had, by his acts or omission or by a continued
course of conduct, created such circumstances that the deceased was left with no other option
except to commit suicide, in which case, "instigation" may have to be inferred. To constitute
'instigation', a person who instigates another has to provoke, incite, urge or encourage the
doing of an act by the other by "goading" or 'urging forward'. The dictionary meaning of the
word "goad" is "a thing that stimulates someone into action; provoke to action or
reaction.....to keep irritating or annoying somebody until he reacts. 49 Instigate means the

45
M. Mohan v. State, Represented by the Deputy Superintendent of Police (2011) 3 SCC 626 : 2011(3) SCALE
78 : AIR 2011 SC 1238 : 2011 0 Cri.L.J 1900; Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707;
Rakesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, Gangula Mohan Reddy v. State of Andhra Pradesh,
(2010) 1 SCC 750; Thanu Ram v. State of M.P., 2010 (10) SCALE 557 : (2010) 10 SCC 353 : (2010) 3 SCC
1502(Cri) ; S.S. Chheena v. Vijay Kumar Mahajan & Anr., (2010) 12 SCC 190 : (2010 0 AIR SCW 4938);
Sohan Raj Sharma v. State of Haryana, AIR 2008 SC 2108 : (2008) 11 SCC 215.
46
Dammu Sreenu v. State of A.P., AIR 2009 SC 3728; (2009) 14 SCC 249.
47
Asha Shukla v. State of U.P. 2002 CriLJ 2233.
48
Parimal Chatterji v. Emperor 140 Ind. Cas.787.
49
Chitresh Kumar Chopra v. State (Government of NCT of Delhi), AIR 2010 SC 1446; Kishangiri Mangalgiri
Goswami v. State of Gujarat, (2009) 4 SCC 52 : (2009) 1 SCR 672 : AIR 2009 SC 1808 : 2009 0 Cri.L.J 1720.

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active role played by a person with a view to stimulate another person to do the thing. In
order to hold a person guilty of abetting it must be established that he had intentionally done
something which amounted to instigating another to do a thing.50
(¶36.) In is humbly submitted that the accused have instigated the deceased by providing
cash prise in every level of the game. The cash price prised provided is not a small amount. It
starts with Rs1000 and goes upto Rs 3lakhs. By providing such a large amount of money the
accused instigated the deceased to commit suicide. As it is established earlier this game was
famous amongst the younger generation and influencing the younger generation is very easy.
By providing such huge amount within such short period instigates the people for doing all
that is required to get those money. Hence, the accused is guilty of committing abetment to
suicide.

[3] THAT “FINTEC SOLUTIONS PVT LTD” BE HELD CRIMINALLY LIABLE

[3.1] MENS REA OF THE DIRECTORS WAS PRESENT

(¶37.) It is humbly submitted before this Hon’ble Court that directors owe their companies a
duty of good faith and duties of care and skill. 51The directors must act in the best interest of
the company. Interest of the company implies the interest of present and future members of
the company on the footing that the company would be continued as a going concern.

(¶38.) A criminal act generally requires some element of wrongful intent or other fault 52. This
is known as mens rea or guilty mind 53. As per the common law principles, a corporation
could have a mind capable of entertaining a criminal intent 54. It has no mind of its own any
more than it has a body of its own; its active and directing will must consequently be sought
in the person or somebody who for some purposes may be called an agent, but who is really

50
Rajib Neog v. State of Assam, 2011 CrLJ 399(Gau).
51
Kathleen Van Der Linde, The Personal Liability of Directors for Corporate Fault- An Exploration, 20 S. AFR.
MERCANTILE L. J. 440 (2008).
52
GLANVILLE WILLIAMS, TEXT BOOK OF CRIMINAL LAW, 219 (2d ed. 1999).
53
14(2) THE DIGEST 17 (1993).
54
Joplin Mercantile Co. v. United States, 213 Fed. 926 (C. C. A. 8th, 1914); See also The HLR Association,
Criminal Liability of Corporations for Acts of Their Agents, 60 HARV. L. REV. 284 (1946); See also Standard
Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530.

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the directing mind and will of the corporation, the very ego and centre of the personality of
the corporation55.

(¶39.) In the present case Mithun Dorjee as well as Raman Rai, the Directors of the ‘Fintec
Solutions Pvt Ltd’, have the requisite mens rea to commit the crime, because they were the
directing mind and will of the corporation, having taken the responsibility for discharging
their duties on behalf of the corporation. Intention literally means a conscious movement with
knowledge of the circumstances56. The mental element should require proof that the accused
has personal awareness and has himself perceived the relevant circumstances and
consequences comprising of the actus reus of the offence57.

(¶40.) In the present case also, the conscious movement of the accused with the knowledge of
the circumstances was distinctively evident. This conscious movement of the accused could
be directly related to the creation of shadow accounts so as to hide the accountability and
legal auditing of the profits earned by the game. This act of the accused, constitutes the
requisite mens rea where the very intent is for the purpose of tax evasion.

(¶41.) Therefore, it could be humbly submitted that the accused persons had the very
intention of crating such a deadly game that would be liked among the younger generation,
which would eventually turn out to bring revenue for the company, where the manner in
which it is brought is per se illegal in nature.

[3.2] THE IDENTIFICATION PRINCIPLE IS APPLICABLE IN THE PRESENT CASE

(¶42.) The identification principle (attribution via the ‘directing mind and will rule’) was
clearly recognised in the criminal law, DPP v Kent and Sussex Contractors Ltd, defendant
was charged with two offences requiring mens rea. The Divisional Court held that company
could be convicted of both the offences. The false documentation in question had been signed
by an officer of the company and he had the necessary mens rea and, the Court held, his mens
rea could be attributed to the company. Viscount Caldecote Cj stated that: ‘a company is
incapable of acting or speaking or even thinking except in so far as its officers have acted,
spoken or thought,’58

55
Lennard’s Carrying Co. Ltd. v. Asiatic Petroleum Co., [1915] A.C. 705, 713 (H.L.).
56
GLANVILLE WILLIAMS, TEXT BOOK OF CRIMINAL LAW, 219 (2d ed. 1999).
57
DAVID ORMEROD AND SMITH AND HOGAN, CRIMINAL LAW, 104 (13h ed., 2011).
58
[1944] 1 ALL ER 119.

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(¶43.) The nature of the directing mind and will rule, and the clear distinction which exists
between personal corporate liability resulting from it and the corporation’s vicarious liability
as an employer, is shown in the following passage from Lord Reid’s in Tesco Supermarkets
Ltd v Nattrass:

‘A living person has a mind which can have knowledge or intention or be negligent and he
has hands to carry out his intentions. A corporation has none of these: it must act through
living persons, though not always one and the same person. Then the person who acts is not
speaking or acting for the company. He is acting as the company and his mind which directs
his acts is the mind of the company. There is no question of the company being vicariously
liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment
of the company, or, one could say, he hears ad speaks through the persona of the company,
within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind
then the guilt is the guilt of the company.59

(¶44.) An influential dictum on the distinction between those who form part of the directing
mind and will of the corporation and those who do not is to be found in the civil case of HL
Bolton(Engineering) Co Ltd v TJ Graham & Sons Ltd where Denning LJ said:

‘A company may in many ways be likened to a human body. It has brain and nerve centre
which controls what it does. It also has hands which hold the tools and act in accordance
with directions from the centre. Some of the people in the company are mere servants and
agents who are nothing more than hands to do the work and cannot be said to represent the
directing mind and will of the company, and control what it does. The state of mind of these
managers is the state of mind of the company and is treated by the law as such.60

(¶45.) This dictum was approved in Tesco Supermarkets Ltd v Nattrass61 by Viscount
Dilhorne and Lords Reid and Pearson who held that only those who constitute the ‘directing
mind and will’ of the corporation can be identified with it. These were people such as
directors and others those who are in actual control of the affairs of the corporation or part of
them with full discretion to act independently of instructions from the board of directors. 62 In
assessing whether a particular person could be identified with the corporation, account should

59
[1972] AC 153 at 170.
60
[ 1957] 1OB 159 at 172.
61
[1972] AC 153,HL.
62
[1972] AC 153 at 171, 183 and 193.

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be taken of the constitution of the corporation but it is not decisive. Account should also be
taken of the corporation’s organisational structure.

(¶46.) According to the decision of the Privy Council in 1995 in Meridian Global Funds
Management Asia Ltd v Securities Commission63, if the application of the directing mind
and will rule would defeat the purpose of the statute, attribution depends on the interpretation
of the provision in question and its underlying policy (or purpose). This approach, which may
be regarded as an extension of the identification principle, can result in the attribution to the
corporation of the acts and state of mind of someone lower down the corporation than its
directing mind and will.

(¶47.) The New Zealand statute’s policy was to compel the immediate disclosure of the
identity of a person who became a substantial security holder. Where that person was a
corporation the relevant act and state of mind could include that of an individual who, within
the scope of his authority, acquired the relevant interest; the statute’s policy would be
defeated if knowledge was required on the part of someone constituting part of the directing
mind and will of the corporation.

(¶48.) Corporations may be held criminally responsible for the illegal acts of its employees, if
such acts are related to and committed within the course of employment and committed in
furtherance of the business of the corporation.64 However, on account of providing complete
justice to the aggrieved which could not be prejudiced in the garb of corporate personality,
the court did not go by the literal and strict interpretation rule required to be done for the
penal statutes and went on to provide complete justice, thereby imposing fine on the
corporate.65

(¶49.) Therefore, it is humbly contended before this Hon’ble Court that the wilful attempt on
the part of the accused for the purpose of tax evasion, makes the Company guilty under Sec
276C66 . When the company was established, both the directors entered into an agreement
stating that any decision or work done by either of the directors would be accepted by the
other67. This particular agreement brings Raman Rai, the other director of the company, into
the shield of liability, as though, when he learned about this particular game, he failed to
63
[1995] 2AC 500,PC.
64
US v Jorgensen, 144 F3d 550.
65
Standard Chartered Bank and others v. Directorate of Enforcement, AIR 2005 SC 2622.
66
Income Tax Act, 2016.
67
Para 9, Moot Proposition, AIL National Moot Court Competition, Checkmate 2018.

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exercise a reasonable care, skill and diligence and acted negligently in discharge of his duties
and consequently shall also be held liable68.

[4.] THE ACCUSED IS LIABLE TO PAY COMPENSATION FOR THE DEATH

OF JAY TYAGI.

(¶50.) It is humbly submitted before the Hon’ble Court that the accused is liable to pay
compensation to the parents of Jay Tyagi, who are the Victim within the definition of Sec
2(wa) of CRPC which states:

(¶51.) “Victim” means a person who has suffered any loss or injury caused by reason of the
act or omission for which the accused person has been charged and the expression “victim”
includes his or her guardian or legal heir.

(¶52.) In the present case also, the parents of the deceased Jai Tyagi would be referred to as
victim, as they are the one who has suffered the loss of their child because of the act of the
accused.

(¶53.) The issue is addressed under the following heads [4.1] The Hon’ble High Court was
not justified in acquitting the accused, [4.2] the accused is liable to pay compensation u/s Sec
357 of Cr.P.C., [4.3]the central govt. is also liable to pay compensation u/s Section 357 A
Cr.P.C.

[4.1] THE HON’BLE HIGH COURT WAS NOT JUSTIFIED IN ACQUITTING THE ACCUSED.

(¶54.) The quantum of fine imposed upon the company by the Hon’ble high court and the
removal of imprisonment and fine that was imposed individually upon the directors is
insufficient and not in accordance with the law. Firstly the crime they have committed is in
gross violation of right to life of the victim and to the principles of the society. Secondly the
Hon’ble High Court in its judgment has ignored the sentencing policy prescribed u/s 306 Of
IPC and has reduced the quantum of fine which was imposed by the learned sessions Court
without giving any adequate and special reasons for the same.69

68
Dr. G.K. KAPOOR and SANJAY DHAMIJA, COMPANY LAW AND PRACTICE, Page no – 458 (20th Ed.,
2015).
69
Contention I, Memorial for Appellant (3rd FYLC Ranka National Moot Court Competition, 2013).

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Therefore, it could be humbly contended that the decision given by the Hon’ble High Court
should be set aside, as it leads to miscarriage of justice.

[4.2] THE ACCUSED IS LIABLE TO PAY COMPENSATION U/S SECTION 357 OF THE CODE
OF CRIMINAL PROCEDURE, 1973.

(¶55.) The scope and the object of the s.357 of the Code of Criminal Procedure were
explained by Supreme Court in Sawarn Singh v. State of Punjab70, wherein it was observed
thus:

The law which enables the court to direct compensation to be paid to the dependants is found
in s.357 of the Code of Criminal Procedure (herein after Cr.P.C.). The corresponding
provision in the 1898 Code was s.545. According to s.357, the Court is enabled to direct the
accused, who caused the death of another person, to pay compensation to the persons who
are, under the Fatal Accident Act, 1855, entitled to recover damages from the person
sentenced, for the loss resulting to them from such death which the accused person has been
so sentenced.

(¶56.) While awarding the amount of compensation the Court must take into the account the
nature of crime, the injury suffered, the justness of the claim for compensation, the capacity
of the accused to pay and other relevant circumstances. If there are more than one accused,
quantum of compensation may be divided equally unless there is considerable variation in
their paying capacity. The payment may also vary depending upon the acts of each accused.
Reasonable period for payment for compensation, if necessary, by instalments, may also be
given. The Court may enforce the order by imposing sentence in default.71

(¶57.) In the instant case, it has been very clearly laid down 72 that the nature of the crime
committed by the accused persons was heinous. The accused had developed such an online
game, whose stages per se was illegal in nature and was in contrary to social laws and
morality. Invention of such a game would disturb the harmonious balance of the society and
the injury suffered by playing such a game is incalculable.

70
AIR 1978 SC 1525.
71
Hari Singh and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127.
72
Para 9, Moot Proposition, AIL National Moot Court Competition, Checkmate 2018.

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(¶58.) Since the enterprise was doing very well and the profits were also very good. Thereby,
it could be reasonably concluded that the accused were capable enough to pay the amount of
compensation and should be made liable to pay for developing such a deadly virus.

(¶59.) In Smt. Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur and Anr.73 this Court
while dealing with the use of the word “may” summoned up the legal position thus:

“...It is well-settled that the use of word `may' in a statutory provision would not by itself
show that the provision is directory in nature. In some cases, the legislature may use the
word `may' as a matter of pure conventional courtesy and yet intend a mandatory force. In
order, therefore, to interpret the legal import of the word `may', the court has to consider
various factors, namely, the object and the scheme of the Act, the context and the background
against which the words have been used, the purpose and the advantages sought to be
achieved by the use of this word, and the like. It is equally well-settled that where the word
`may' involves a discretion coupled with an obligation or where it confers a positive benefit
to a general class of subjects in a utility Act, or where the court advances a remedy and
suppresses the mischief, or where giving the words directory significance would defeat the
very object of the Act, the word `may' should be interpreted to convey a mandatory force...”

(¶60.) Similarly in Dhampur Sugar Mills Ltd. v. State of U. P. and Ors.74 the Court held that

the mere use of word 'may' or 'shall' was not conclusive. The question whether a particular
provision of a statute is directory or mandatory, held the Court, can be resolved by
ascertaining the intention of the Legislature and not by looking at the language in which the
provision is clothed. And for finding out the legislative intent, the Court must examine the
scheme of the Act, purpose and object underlying the provision, consequences likely to ensue
or inconvenience likely to result if the provision is read one way or the other and many more
considerations relevant thereto.

[4.2.1] PERSONS ENTITLED TO GET COMPENSATION

(¶61.) Ideally, all victims of all crimes should be entitled to get compensation. 75 Under
different laws and court verdicts persons have been declared entitle to get compensation for

73
AIR 2008 SC 1282.
74
(2007) 8 SCC 338.
75
Vibhute K.I., Criminal Justice – A Human Rights Perspective of the Criminal Justice Process in India, 365
Eastern Book Company, Lucknow Ist Edition (2004).

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their suffering. The victim may be, the person himself or the successors are the persons, who
are successor in interest and dependent upon the deceased. Justice requires that a person who
has suffered (including dependents) must be compensated. Basically, the accused is
responsible for the reparation of any harm caused to him.

(¶62.) According to s.357 (1) of Cr.P.C., 1973 the persons who are entitled under the Fatal
76
Accident Act, 1855, are also entitled here. Section 1-A specifies certain relatives to whom
compensation is awardable; it left it to the court to grant such compensation to all or any of
such persons.77 Suit for recovery of damages under it can be maintained only by a person who
is a dependent of the deceased u/s 1-A or legal representative of the deceased.78

(¶63.) Under the Act the wife, husband, parent and child are all entitled to recover damages.
There is no hard and fast rule as to what proportion the amount is to be divided among the
number of person entitled to the amount. 79 However, this can be accomplished only in a
phased manner over a period of years depending on the resources of the State.

(¶64.) A victim should be eligible for compensation whether the offender is convicted or not
or whether the offender is not responsible for the offence because of infancy, insanity, etc.80

(¶65.) In Hari Singh v Sukhbir Singh and Ors 81., this Court lamented the failure of the
courts in awarding compensation to the victims in terms of Section 357 (1) of the Cr.P.C. The
Court recommended to all Courts to exercise the power available u/s section 357 of the
C.r.P.C. liberally so as to meet the ends of justice. The Court said:

“Sub – section (1) of Section 357 provides power to award compensation to victims of the
offence out of the sentence of fine imposed on accused. It is an important provision but
Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the
Court to award compensation to victims while passing judgement of conviction. In addition
to conviction, the Court may order the accused to pay some amount by way of compensation
to victim who has suffered by the action of accused. It may be noted that this power of Courts
to award compensation is not ancillary to other sentences but it is an addition thereto. This

76
Fatal Accidents Act, 1855.
77
AIR 1914 Lah 354 at 356.
78
AIR 1982 M.P. 165.
79
AIR 1946 Mad 164 at 166.
80
Vibhute K.I., Criminal Justice – A Human Rights Perspective of the Criminal Justice Process in India, 365
Eastern Book Company, Lucknow 1st Edition (2004).
81
(1988) 4 SCC 551.

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power was intended to do something to reassure the victim that he or she is not forgotten in
the criminal justice system. It is a measure of responding appropriately to crime as well of
reconciling the victim with the offender. It is, to some extent, a constructive approach to
crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend
to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.”

(¶66.) In a recent case of Supreme Court, Ankush Shivaji Gaikwad v. State of

Maharashtra82, the Supreme Court observed:

“…cases to Section 357, it appears to us that the provision confers a power coupled with a
duty on the Courts to apply its mind to the question of awarding compensation in every
criminal case. We say so because in the background and context in which it was introduced,
the power to award compensation was intended to reassure the victim that he or she is not
forgotten in the criminal justice system. The victim would remain forgotten in the criminal
justice system if despite Legislature having gone so far as to enact specific provisions
relating to victim compensation, Courts choose to ignore the provisions altogether and do
not even apply their mind to the question, Courts choose to ignore the provisions altogether
and do not even apply their mind to the questions of compensation, it would defeat the very
object behind the introduction of the provision.”

(¶67.) In Ashwani Gupta v. Government of India83, the Court held that mere punishment of
the offender cannot give much solace to the family of the victim. Since the Civil action for
damages is a long drawn/cumbersome judicial process, the compensation of Section
357 Cr.P.C. would be useful and effective remedy.

(¶68.) In the instant case, the Court should have applied its mind while determining the
question of awarding compensation that the nature of loss suffered by the parents of deceased
Jai Tyagi is irreparable and could not be substituted. Therefore, taking into consideration, not
only the loss of their child but life-long emotional distress and loss which the court must
interpret in strict manner to invoke the objectives of Sec 357, Cr.P.C. by providing adequate
compensation.

[4.3] THE CENTRAL GOVT. IS LIABLE TO PAY COMPENSATION

82
(2013) 6 SCC 770.
83
2005 (117) DLT 112.

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(¶69.) We find that the Court of sessions and the High Court have not fully focused on the
need to compensate the victim which can now be taken to be integral to just sentencing.
Order of sentence in a criminal case needs due application of mind. The court has to give
attention not only to the nature of the crime , prescribed sentence, mitigating and aggravating
circumstances to strike just balance in needs of society and fairness to the accused, but also
keep in mind the need to give justice to the victim of crime. In spite of legislative changes
and decisions of the court, this aspect escapes attention. Rehabilitating Victim is as important
as punishing the accused. Victim’s plight cannot be ignored even when a crime goes
unpunished for want of adequate evidence.84 The power of the court to grant compensation
for deprivation of fundamental right.85

(¶70.) The amendments to the Cr. P.C. brought about in 2008 focused heavily on the rights of
victims in a criminal trial. Though the 2008 amendments left Section 357 unchanged, they
introduced Section 357 A under which the Court is empowered to direct the state to pay
compensation to the victim in such cases where “the compensation awarded u/s Section 357
is not adequate for such rehabilitation, or where the case ends in acquittal or discharge and
the victim has to be rehabilitated.” Under this provision, even if the accused is not tried but
the victim needs to be rehabilitated, the victim may request the State or District Legal
Services Authority to award him/her compensation. This provision was introduced due to the
recommendations made by the Law Commission of India in its 152 nd and 154th Reports in
1994 and 1996 respectively.

(¶71.) Vijagan v. Sadanandan86, the court observed that compensation can be awarded to the
victim even if accused was not convicted. It shows that courts are free to award compensation
even if accused was not convicted because every case has its different situations.

(¶71.) S.357 is regarded as the ‘offender’s liability.’ State liability does not enter the picture
however desirable it may be as there is no reference to such under the section 87. But emerging
theories of victimology support grants-in-aid by the state to assist the victim. As a welfare
state, the state shall devise means to ensure speedy payment of compensation and should
enact special provision in this direction, either in the existing Code of Criminal Procedure or
through a special piece of legislation.
84
Manohar Singh v. State of Rajasthan and Others, (2015) 3 SCC 449.
85
Nilabati Behera v. State of Odisha (1993) 2 SCC 746.
86
2009 (6) SCC 652.
87
State of Madhya Pradesh v. Mangu, 1995 CrLJ 3852

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(¶72.) The object and purpose of Section 357 A CrPC is to enable the court to direct the state
to pay compensation to the victim where the compensation u/s Section 357 CrPC is not
adequate or where the cases ended in acquittal or discharge and the victim is required to be
rehabilitated. The provision was incorporated on the recommendation of the 154 th Report of
the Law Commission. It recognises compensation as one of the methods of protection of
victims.88

(¶73.) 69A.89 Power to issue directions for blocking for public access of any information
through any computer resource.- (1) Where the Central Government or any of its officer
specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in
the interest of sovereignty and integrity of India, defense of India, security of the State,
friendly relations with foreign states or public order or for preventing incitement to the
commission of any cognizable offence relating to above, it may subject to the provisions of
sub-sections (2) for reasons to be recorded in writing, by order direct any agency of the
Government or intermediary to block access by the public or cause to be blocked for access
by public any information generated, transmitted, received, stored or hosted in any computer
resource.

(¶74.) From the above section we can come to the conclusion that the Central Government
had the power to make laws to issue directions for blocking the game and even after knowing
that the game was causing a ruckus in the society 90 the Government didn’t take any action.
Failure on the part of Central Government in discharging its duties for maintaining peace in
the society, makes the state liable to pay compensation for the injury caused by such a neglect
act.

Therefore, it could be reasonably concluded that the accused is liable to pay compensation u/s
sec 357 of CrPC and the state is also liable to pay compensation u/s sec 357A of CrPC.

88
Suresh and Anr. v. State of Haryana, (2015) 2 SCC 227.
89
Information Technology Act, 2000.
90
Para 20, Moot Proposition, AIL National Moot Court Competition, Checkmate 2018.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honourable Court may be pleased to adjudge and declare:

(1.)That the Respondent No. 1 and 2 are to be guilty of the offences under Sections 302,
306, 107 and 120B of the Indian Penal Code and,

(2.)That the Respondent No. 3 is criminally liable for the acts done by the Directors and,

(3.)That the Respondents are liable to pay compensation for the Death of Jay Tyagi.

AND / OR

pass any such order, writ or direction as the Honourable Court deems fit and proper, for this
the Appellant shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

S/d.
COUNSEL FOR THE APPELLANT.

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