1st C.L.Agarwal Memorial Moot Court Competition,2017.

CL18

IN THE HON’BLE HIGH COURT OF RAJASTHAN

[CR. APPEAL No. _ Of 2015)]

(Under Section 374(2) of criminal procedure code,1973)

In the case of

Mr.RAJKUMAR ………………………….. (petitioner/Appellant)

v.

STATE OF RAJASTHAN …………………………………. (Respondent)

Clubbed with

(Civil appeal) NO _ of 2015

Upon submission to the Hon’ble High Court of Rajasthan.

Memorial On Behalf Of APPELLANT

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TABLE OF CONTENTS

LIST OF ABRIVIATION 3

INDEX OF AUTHORITIES

Statutes .4

Books. 4.

Table of Cases 4-5.

STATEMENT OF JURISDICTION 6

STATEMENT OF FACTS 7-9

STATEMENTS OF ISSUES 10

SUMMARY OF ARGUMENTS 11-12

ARGUMENTS ADVANCED 13-28

ISSUE-1 Whether the appeal under Section 374(2) of the code of criminal procedure, 1973
maintainable or not?
ISSUE-2 Whether the appellant is liable for refunding the stridhan property by using
the stridhan property in certain exceptional condition or not?
2.1 Whether the appellant is liable under section 406 of the Indian Penal Code,
1860 for committing criminal breach of trust or not
ISSUE-3 Whether the session court was correct to convict the accused under section
302, 304b and 498a of the Indian Penal code, 1860 or not ?
PRAYER……………………………………………………………………..…………. 29

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LIST OF ABBREVIATION

AIR All India Reporter

All Allahabad High Court
Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Ed. Edition
HC High Court
IC Indian Cases
ILR Indian Law Reporter
IPC Indian Penal Code
n. Foot Note no.
Ors. Others
p. Page No.
Para Paragraph
Pvt... Private
Pun Punjab
SCC Supreme Court Cases
Sec. Section
i.e., That is
IR Investigation report

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INDEX OF AUTHORITIES

STATUES REFERRED

 The Indian Penal Code, 1860

 The Code of Criminal Procedure, 1973
 The Indian Evidence Act 1872
 The Code of Civil Procedure, 1908.

BOOKS REFERRED

 Ratanlal and Dhirajlal The Indian Penal Code, 34nd Ed. 2015- Volume- I & II;
Lexis Nexis.

 Dr. S.R. Myneni The Law of Evidence, 1st Ed. 2010 Asia Law House.
 RATANLAL & DHIRAJLAL The Law of Evidence, 24th Ed.2011
(Edited by V.R. Manohar); Lexis Nexis Butterworths Wadhwa, Nagpur;

 Dr. S.R. Myneni The Law of Crimes(Indian Penal Code), 1st Ed. 2011 Asia Law
House.

 RATANLAL & DHIRAJLAL The Code of Criminal Procedure, 1973, 20th

Ed.2011
(Edited by V.R. Manohar); Lexis Nexis Butterworths Wadhwa, Nagpur;

CASES REFERRED

 Devender Kumar v. State of Rajasthan, 10th January, 2011.

 Raja v. State of Madras 1970 CR l.j 277.
 Pratibha Rani v. Suraj Kumar AIR 1985 SC 628
 Tukaram v. Gunaji. (1871) 8 Bom HCAC 129.

 S.Mukherjee and A. v. Vardarajan (1993) 7 SCC 499

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 Sushil kumar Gupta v. Joy Chandra Bhattacharjee.AIR 1965 SC 1433

 Onkar Nath Mishra & ors. V. State and anr. 2008 (1) JCC 67
 Rahim Baksh (1879) PR No. 30
 Vinod Kumar Goyal v. Union Territory 1990 CR.l.j. 2333
 Anokh Singh v. Paramjeet kaur. 1990 (DMC) 545
 Samadhan dhudaka v. State of Maharashtra AIR 2009 SC 1059
 Lakhan v. State of M.P. (2010) 8 SCC 514.
 Kushal Rao v. State of Bombay 1958 AIR 22.
 Ramnath MadhoPrasad v. State of M.P. AIR 1953 SC 420.
 Gopal v. State of M.P. 2009 SC 635.
 St. Of Punjab v. Chatinder Pal Singh AIR 2009 SC 974
 Kamla v. St. Of Punjab AIR 1993 SC 374.
 St. Of Maharashtra v. Sanjay Air 205 SCC 97.
 Mustafa Sahadal Sheikh v. St. Of Maharshtra 2012 CrL.j. 4763.
 Sawal Ram v. State of Maharashtra 2003 Cr.L.J. 2831 (bom.)
 Nand Kishore v. State of Maharashtra 1995 Cr.L.J. 3706.
 Sham Lal v. State of Haryana 1997 Cr.L.j. 1927 S.C.
 State of A.P. v. RajGopal Asawa AIR 2004 SC 1933.
 Appa sahib v. State of Maharashtra AIR 2007 SC 763.
 Gurucharan Kumar v. State of Rajasthan AIR 2003 SC 992.
 State of Maharashtra v. SatyaBhama Pandwrang Raipur 2003 Cr.L.J. 1496
(Bom.)
 Keshab Chandra Panda v. State of Orissa 1995 1 crlj 174 (Orissa).
 Vipin Jaiswal v. State AIR 2013 SC 1567.
 Ramesh Chand v. State of U.P. 1992 Cri L.J. 1444(ALL.)

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STATEMENT OF JURISDICTION

The Appellant has the honour to submit before the Hon’ble High Court of Rajasthan, the
memorandum in the (Cr) Appeal No. _2015 under Section 374(2) of the code of criminal
procedure, 1973.
“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.

The present memorandum sets forth the facts, contentions and arguments in the present case.

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STATEMENT OF FACTS

Introduction

In the instant case, the appellant namely Mr. Rajkumar was running a successful dealing
business in Kuru, a town in Rajasthan. In 2011, he got married to Malini and a daughter was
born out of the said wedlock in 2012.

Loss in business

In September, 2013 Rajkumar told Malini that he had suffered major loss in business and was
in dire need of money.

Offer by Malini

Malini after hearing him voluntarily offered to sell the gold ornaments (stridhan) which was
kept safe in bank locker jointly accessed by both but the Rajkumar did not agree to Malini’s
suggestion and he suggested that she should approach her parents and procure 20 lakhs from
them which would be returned to them once the business got stable.

Commencement of deteriorated relations.

Because of refusal from Malini side to bring 20 lakhs from her paternal home, Rajkumar got
agitiated and kept on insisting that she must speak with her parents and demand the money.
On several occasions, they had heated arguments where he even went to the extent of saying
that her parents have not given him enough at the time of marriage.

Legal action taken by Malini

Malini approach to the bank for helping her husband by taking the gold ornaments where she
found that on 7th july, 2013 most of the gold ornaments were removed from the locker by
Rajkumar and when she confronted him about the same , he told that most of the gold
ornaments were given to her by his parents therefore he had an equal right over it. Therefore
she took a legal action and approached a law consultancy firm and sought their advice ,where
she was advised that the gold ornaments came within the purview of stridhan and she should
approach to the family court.
Decision of family court

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The family court gave the decision in favour of the husband relying upon the following facts-
 That bank locker being a joint locker could be operated by either of them .
 That there was sufficient evidence to suggest that after selling the ornaments, the
husband used the money for stabilising business which was again in the interest of
family.
Appeal in the High Court
Aggrieved by the decision of the family court, Malini filed an appeal in the Rajasthan high
court with the contention that gold ornaments come within the purview of stridhan and can
only be used and disposed off by wife and the case is still pending.
Efforts for reconciliation
In October 2015, both decided to spend the vacations in the hill station with the object of
reconciliation.
Malini found burning
On the night of 10th October 2015, Malini was found burning in flames.Rajkumar and his
daughter was found lying unconscious in the next room. With the help of staff of the guest
house, Rekha and her husband were able to put off the flames.
Dying Declaration
 A statement was given by Malini wherin she said that her husband had tried to burn
her by pouring petrol which was recorded by Rekha.
 In hospital, Malini gave another statement in presence of doctor and police personnel
stating that she herself poured petrol on her body and sset herself on fire.

Death of Malini and Medical reports

Next morning, due to 80% burn Malini was died and medical reports of Malini, Rajkumar
and their daughter stated that –
 Death was caused by burns.
 High dose of zolpeidum was found in body of Rajkmar and his daughter.
Investigating report
The I.O. mentioned that Rajkumar had himself consumed sleeping pills and he had enough
control over his body to carry the activity before finally falling unconscious. On this basis,
under section 173 of crpc , a charge sheet was filed.
Decision of session court

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The Court of Session gave life imprisonment under section 302, 304b and 498a of Indian
Penal Code, 1860 by declaring that the act comes within the purview of culpable homicide
amounting to murder. However, the decision was challenged by Rajkumar in the High court
of Rajasthan. Thereafter the appeals were clubbed by the high court.

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 STATEMENT OF ISSUES

ISSUE-1 Whether the appeal under section 374(2) of the code of criminal procedure, 1973
is maintainable or not?
ISSUE-2 Whether the appellant is liable for refunding the stridhan property by using the
stridhan property in certain exceptional conditions or not ?
2.1 Whether the appellant is liable under section 406 of the Indian Penal Code, 1860
for committing criminal breach of trust or not ?
ISSUE-3 Whether the session court was correct to convict the accused under section
302, 304b and 498a of the Indian Penal code, 1860 or not ?

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SUMMARY OF ARGUMENTS

ISSUE1- Whether the appeal under section 374(2) of the code of criminal procedure, 1973 is
maintainable or not?
The present appeal is filed under section 374(2) of code of criminal procedure, 1973. Under this
section, an aggrieved person has a right of appeal against the conviction held by a session court or any
other court. Similarly in the instant matter, the accused was convicted by the session court with
imprisonment for life and the high court being the appellate court holds the power of appellate
jurisdiction to hear the appeal from conviction by the session or other court. Hence, the appeal should
be maintainable.
ISSUE-2 - Whether the appellant can be held liable for refunding the stridhan property by
using it in certain exceptional conditions or not?
2.1 Whether the appellant is liable under section 406 of the Indian Penal Code, 1860 for
committing criminal breach of trust or not ?

In the present matter, the appellant had used the stridhan property as he was in extreme distress
and for the welfare of the family because of the reason that his business was suffering from huge
losses and in order to stabilise it, he had used that stridhan property so that he could achieve two
objectives- firstly to cover up the losses and clear off the debts and secondly to maintain the
proper equilibrium of the family. Moreover, the appellant had not committed the offence of
criminal breach of trust as the property was jointly held by both the parties and no entrustment of
the property was given to the appellant and it cannot be said that the appellant had dishonestly
misappropriated the property as he used that property for the welfare of the family and for
stabilising his business. The appellant is not liable for refunding the stridhan property as he was
having the right to use the stridhan in certain exceptional conditions and no legal implications can
be proceeded against him.

ISSUE-3: Whether the accused shall be convicted under section-302, 304B and 498A
of I.P.C., 1860 or not?

In the present matter, the appellant was neither having mens rea nor he was having actus reus
as when the deceased was burning in flames the accused was lying unconscious in the next
room and there are no sufficient evidence which can clearly prove that he was involved in the
commission of the crime , thus the element of actus reus is not present here and with regards

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to mens rea, his efforts to reconcile with his wife and taking the relatives along with them to
the holidays clearly shows that he was not having any malafide intention or mens rea to
commit the act and also the dying declaration given by the deceased in front of police
personnel and doctor stating that she herself had poured kerosene on her clearly shows that
the accused shall not be held liable for the offence of murder. Moreover, in the instant case
accused took the deceased for reconciliation after the time span of two years and that too by
the mutual consent, it clearly indicates that there was no essence of harassment or cruelty
soon before her death; it implies that section-304B is not applicable. Also, there was no
assault on the deceased which offends her dignity and the other thing i.e. normal wear and
tear between them in their married life does not amounts to cruelty neither physically nor
mentally and after the settlement of disputes also, the husband and wife went for
reconciliation and there was no complain from the side of the deceased that she was subjected
to cruelty by the accused.

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ARGUMENT ADVANCE

ISSUE1- That, the appeal under section 374(2) of the code of criminal procedure, 1973
is maintainable.
It is most humbly submitted before this hon’ble high court that the present appeal is filed by
the appellant under section 374(2) of the code of criminal procedure, 1973 challenging the
validity of the judgement given by the session court. Section-374(2) of crpc, 1973 enumerates
that:
Any person convicted on a trial held by a session judge or on a trial held by any other court in
which a sentence of more than 7 years has been passed against him or against any other
person convicted at the same trial may appeal to the high court.
In the present matter as well the accused appellant filed the appeal before the hon’ble high
court of Rajasthan because he was convicted under section- 302, 304B and 498A of the
Indian Penal Code, 1860 by the session court .In order to make out an appeal under section
374(2) of the code of criminal procedure, 1973, 2 conditions are essential-
 Any person convicted on a trial held by a session judge or by an additional session
judge or in a trial held by any other court.
 The sentence of imprisonment should also be more than 7 years.
In our present matter as well, the appellant has approached this hon’ble high court on
the following grounds-
 The accused was convicted by the session judge.
 He was punished with imprisonment for life.
There are 2 leading case laws which would further be of an evidentiary value in regards to
this issue-
In the case of Devender Kumar v. State of Rajasthan1, in this case the accused Devender
Kumar was convicted by the session court for punishment under section 302 of IPC , 1860
against which he filed an appeal to the hon’ble high court and it was held that the appeal is
considered to be maintainable on the ground that the appellant accused has his right to appeal
to the appellate court against the judgement of the lower court and was later acquitted by the
high court as his conviction proved to be wrong by the session court.

1
10th January, 2011

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In another case of Raja v. State of Madras2 the appeal was also directed against the verdict
of conviction whereby the appellant accused was convicted for dowry harassment under
section- 498a of the Indian Penal Code, 1860 along with section 302 of The Indian Penal
code, 1860 sentencing him to undergo life imprisonment along with fine.
The Hon’ble High Court has heard the appeal and held that the appeal is maintainable and set
aside the conviction of the appellant accused.

From the above arguments and case laws, it is well settled that the high court being the
appellate court of jurisdiction has the power to hear the cases which comes before it by the
appellant and also the appellant has the right to appeal against any order or judgment passed
by the lower court.

Therefore, this issue is concluded by stating that the appeal filed by the appellant under
section 374(2) of the code of criminal procedure, 1973 should be maintainable and should be
properly taken into consideration.

2
1970 CR l.j 277.

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ISSUE-2 – That, the appellant is not liable for refunding the stridhan property by using
the stridhan property in certain exceptional conditions.
It is most humbly submitted before this hon’ble high court that the term ‘stridhan’ is the
conjunction of two words ‘stri’ i.e. woman and ‘dhan’ i.e. property and thus conjunctively
these two words imply that property over which a woman has an absolute ownership.
Ordinarily, the husband cannot use the stridhan property, but with the sole exceptions i.e.-
 In times of extreme distress
 As in famine, illness, or discharging of some indispensable duties.
The appellant can utilise the stridhan property for the benefit of the family. The right to
use the property is purely personal to the husband and in case of these exceptional
conditions; no decree of debt can be proceeded against him for execution.
In order to support the above arguments, it was held by the apex court in the case of
Venkata Rama v. Venkata suriya3, it was stated that the husband can take or use the
stridhan property in the case of extreme distress, as in famine or for some indispensable
duties and for illness.

Similarly, in the present matter as well the appellant had used the stridhan property in
extreme distress for stabilising his business conditions and for the welfare of the family. If the
business incurs losses it will directly hamper the mental equilibrium of the entire family.
Thus, it can be said that this condition comes within the purview of extreme distress.
It means that he was having the right of using the same in exceptional conditions and he
shall not be subjected to any kind of legal implications.
It is also well settled in the case of Pratibha Rani v. Suraj Kumar4, it was held that to
say that because the stridhan of a married woman is kept in the custody of her husband
and that he used in certain exceptional conditions, no action against him can be taken as
he is having the right for using the same in certain, specific and exceptional conditions.
It may be further noted that the right to use the stridhan property in certain exceptional
conditions is purely personal to the husband and no legal consequences should be raised
against him for using the same.

3
(1880) 2 Mad 333 (P.C.)
4
A.I.R 1985 S.C. 628

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In the case of Tukaram v. Gunaji5 , it was held that ordinarily the husband has no right
over the stridhan property but in times of extreme distress as in famine, illness or
imprisonment and for the performance of indispensable duties, the husband can take and
utilise it for his personal purpose and this right can’t be availed off by a holder of a decree
against the husband.
Hence, stridhan constitute a woman’s absolute property over which husband has some
qualified rights namely right to use it in extreme distress6. Thus, it can be concluded that
herein this matter as well the husband had utilised the property for stabilising the business
conditions and for the welfare of the family. Therefore, he is not liable for refunding the
same and no legal proceedings should be constituted against him.
That the appellant/accused is not liable under section-406 of the Indian Penal Code,
1860 for committing criminal breach of trust.

It is most humbly submitted before this hon’ble high court that the accused is not liable under
section-406 of the Indian Penal Code, 1860. Section-405 of I.P.C enumerates that-

Whoever, being in any manner entrusted with property, or with any dominion over the
property, dishonestly misappropriates or convert to his own use that property, or dishonestly
uses or disposes of that property in violation of any direction of law prescribing the mode in
which such trust is to be discharged, or of any legal contract, express or implied, which he
has made touching the discharge of such trust, or willfully suffers any other person so to do,
commits criminal breach of trust.

A reading of the section suggests that the gist of the offence of criminal breach of trust is the
“misappropriation” or conversion to own use another property. The following ingredients are
necessary to attract the operation of section-405-

 The accused must be entrusted with the property or any dominion over the property.
 The accused must so entrusted must-
1. Dishonestly misappropriated or convert it to his own use.

5
(1871) 8 Bom HCAC 129
6
Krishna Bhattarcharjee v. SarathI Chaudhary and anr. 2015

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2. Dishonestly use or dispose off that property or willfully suffer any other
person.

In order to constitute an offence under section-406 of I.P.C. there must be an entrustment of

property. But there can be no entrustment of property in matrimonial home which “presumes
a jointness of custody and possession by the spouses of their individual as also of their joint
properties which cannot be divided by any metaphorical lines.” In effect to this argument ‘in
absence of separate agreement and specific entrustment’ all properties of both the spouses are
presumed to be jointly held. Moreover, every partner has dominion over property by reason
of the fact that he is a partner. Therefore, the charge of criminal breach of trust in such cases
is too harsh.7

But here in the instant matter, there was no entrustment of stridhan property but both the
spouses were having an equal right for using the same because they were holding an equal
access over the joint locker.

In the case of Sushil kumar Gupta v. Joy Chandra Bhattacharjee8, it was observed by the
apex court that The offence of criminal breach of trust is committed when a person who is
entrusted in any manner with property or with dominion over it, dishonestly misappropriates
it or converts it to his own use.

Therefore, the very concept of the matrimonial home connotes a jointness of possession and
custody by the spouses even with regard to the movable properties exclusively holds by each
of them. It is, therefore, inapt to view the same in view of the conjugal relationship as
involving any entrustment or passing of dominion over property day-to-day by the husband to
the wife or vice-versa.
Consequently, barring the special written agreement to the contrary, no question of
entrustment or dominion over property would normally arise during coverture or its imminent
breakup. Therefore, the very essential pre-requisites and the core ingredient of the offence
under sec.406 of the Indian Penal Code, 1860 would be lacking in the charge of criminal
breach of trust of property.

7
S.Mukherjee and A. v. Vardarajan (1993) 7 SCC 499
8
AIR 1965 SC 1433

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The secondary requisite of section-405 is dishonest misappropriation or conversion to

his own use of that property- The crucial word used in section 405 is ‘dishonestly’ and,
therefore it implies the existence of mens rea, that is to say a guilty mind. Dishonest intention
is the gist of the offence.9

But the appellant shall not be liable under section-406 of I.P.C. for dishonestly
misappropriating the property because he used that property for stabilizing the business
conditions and for the welfare of the family but the accused/appellant neither dishonestly
misappropriated the property nor he converts that property for his personal use. It shows that
he was not having any dishonest intention.

It is also well settled in the case of Onkar Nath Mishra & ors. V. State and anr.10, it was
held that for attracting section-406 of i.p.c, there should be misappropriation of property.

But here in the instant case there is no sufficient evidence that can prove that the accused
used the property for his own purpose rather than investing in the business. Moreover, in the
case of charge of criminal breach of trust against a partner, the criminal court should not
entertain the case if the prosecution is unable to prove, clearly and beyond doubt that the
accused has acted dishonestly and with a view to enrich himself clandestinely at the expense
of those with whom he was working and with whom he was bound by the fiduciary
relationship.

There should be a sufficient evidence which could establish the guilt of the accused beyond
reasonable doubt regarding the misappropriation of property but according to the decision of
the family court which was in favour of the husband, it was proved that there was sufficient
evidence to suggest that after selling the ornaments, the husband used the money for
stabilizing the business and for the welfare of the family and because of lack of evidence
which can prove the guilt of accused, he shall not be liable for criminal breach of trust.

9
Rahim Baksh (1879) PR No. 30
10
2008 (1) JCC 67

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In a leading case law of Vinod Kumar Goyal v. Union Territory11, it was held that in the
absence of clear, specific and unambiguous allegation against the accused that he had
dishonestly or with malafide intention used the same and had refused to return those articles
to the wife for whose exclusively use such articles were alledgly entrusted to him, no
primafacie case for committing criminal breach of rust would be mad ot against such
accused.

In another case that is Anokh Singh and ors. V. Paramjeet Kaur12, Justice S.S. Grewal
held that the specific allegation regarding the misappropriation of property is necessary for
bringing the case under section-406 of I.P.C.

Thus, it can be concluded by saying that the appellant/accused had used the stridhan property
for the welfare of the family and there was no dishonest intention regarding using the same
and it was also proved by the decision of the family court that the husband used the money
for stabilizing the business and not for his personal use and because there is lack of evidence
which can prove the dishonest intention from his side and there is no specific, clear and
unambiguous allegation against the accused that he had dishonestly or with malafide
intention used the stridhan property. Hence, we are of the view that the appellant should not
be punished under section-406 of I.P.C. for committing criminal breach of trust.

11
1990 crlj 2333
12
1990 (DMC) 545

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Issue-3: That the accused shall not be convicted under section-302, 304B and 498A of
I.P.C., 1860.
It is most humbly submitted before this hon’ble high court that the accused shall not be
convicted under sec-302, 304B and 498-A of I.P.C., 1860.

The accused shall not be convicted for committing culpable homicide amounting to murder
under sec-302 of I.P.C. The provision with regards to culpable homicide amounting to
murder is enumerated in sec-300 of I.P.C. which states that –‘Except in the cases hereinafter
expected, culpable homicide is murder,

 If the act by which death is caused is done with the intention of causing death.
 If it is done with the intention of causing such bodily injury as the offender knows to
be likely to cause death of the person to whom harm is caused.
 If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death.
 If the person committing the act knows that it is so imminently dangerous that it must,
in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.

The gist of the aforesaid definition suggest that ‘act and intention’ are the two most essential
ingredients on the basis of which a person can be convicted under sec-302 of I.P.C. for
committing culpable homicide amounting to murder. But here in the instant case, neither the
intention nor the act was witnessed on the part of the accused. There is no sufficient evidence
relating to ‘actus reus’ and ‘mens rea’ which persuade to the court to act thereupon.

The word ‘actus’ connotes a ‘deed’ that is a result of human conduct and the word ‘reus’
means ‘forbidden by law’. Thus when we use the technical term actus reus, we include all the
external circumstances and consequences specified in the rule of law as constituting a
forbidden situation.

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‘Mens Rea’ has been often defined to mean mental element or ‘a guilty mind’ or an ‘evil
intention’. The doctrine of mens rea is expressed in the familiar Latin maxim, ‘actus non facit
reum nisi mens sit rea’ i.e. the act does not make one guilty, unless the mind is guilty.
Herein the instant matter, when the deceased was burning in flames the accused was lying
unconscious in the next room and there are no sufficient evidence which can clearly prove
that he was involved in the commission of the crime, thus the element of actus reus is not
present here. Secondly, indispensable element of mens rea is also not present here because-
 Firstly, they went for reconciliation by mutual consent in order to mend their
relations.
 Secondly, they took their relatives with them, if he was having malafide
intentions then they might have went alone.
 Thirdly, there was no allegation of harassment and cruelty by the deceased
against the accused on the basis of which we can infer that their relationship was
not smoothly going.
 Fourthly, instead of opting the tedious method i.e., killing the deceased by taking
her away from their home and before their relatives he might have chosen the
easy and convenient way for killing her at their home itself.
On the basis of above contentions it can be said that mens rea and actus reus are lacking in
the instant case. Thus, the charges against the accused should be set asides. The case of
Samadhan dhudaka v. State of Mah.13. Makes the above point more clear in which the
charge on the husband was that he killed his wife by inflicting burn injuries. In her first dying
declaration in the hospital, she attributed the injuries to accident. The second dying
declaration which was recorded by magistrate was suppressed by the prosecution. In neither
of the declaration she attributed anything to the husband or that they had strained
relationships. There was no allegation of harassment as well. The conviction of the husband
was held to be improper.

And according to the statement of deceased as second dying declaration, which was in
presence of the doctor and police personnel on guard that deceased had herself poured petrol
on her body and set herself on fire. Thus, it can be inferred that the accused was not indulged
in the commission of the crime, neither physically nor mentally. And there was no actus reus
and mens rea from the side of the accused.

13
A.I.R 2009 SC 1059.

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For dying declaration two categories of statement are made admissible in evidence and
further made them as substantive evidence. They are-
 His statement as to the cause of his death;
 His statement as to any of the circumstances of the transaction which resulted in his
death.

Dying declaration is admissible but before a dying declaration can be admitted in evidence, it
must be proved to have been made by the deceased and it must narrate the cause and
circumstances of his/her death.
Circumstances must have some proximate relation to the actual occurrence and must be of the
transaction which resulted in the death of the declarant.

But here in the instant matter, there are two dying declarations one before the relative of the
deceased and the second one was before the police personnel and doctor and both were
contradictory and inconsistent with each other. But the court shall take into consideration the
second dying declaration because it was made before an authority and generally in the cases
where there are multiple dying declarations and there are inconsistencies between them, the
dying declaration recorded by the higher officer can be relied upon.14

The above rule was also well settled in the case of Kushal Rao v. State of Bombay15, it was
held by the apex court that a dying declaration which has been recorded by a competent
magistrate in proper manner i.e. in the form of question and answer and in the words of the
maker as far as practicable stands on much higher footing than a dying declaration which
depends on the oral testimony which may suffer from all the infirmities of human memory
and character.

Where the victim of assault was surrounded by host of his well-wishers, friends and relatives
right till before the arrival of any authoritative person, it was quite likely that these persons
availed every opportunities to tutor and brain wash the victim and reliance could not be

14
Lakhan v. St. of M.P. (2010) 8 SCC 514
15
1958 AIR 22

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placed upon such a dying declaration and the dying declaration before the competent
authority should be taken into consideration.16

Since, the prosecution version was incomplete in all aspects and there was discrepancy with
the first dying declaration and there were no corroborated evidence with the first dying
declaration which can establish the guilt of the accused beyond the reasonable doubt. Hence,
the benefit of doubt should be given to accused and the court shall acquit the accused because
the conviction under such circumstances of the accused is unsafe it was also held in the case
of RamNath Madhoprasad v. St. of M.P17., that it is not safe to convict an accused person
merely on the evidence furnished by a dying declaration without further corroboration.

The same view was also taken in the case of Gopal v. St. of M.P18., it was observed that
when there are more than one dying declaration and the nature of inconsistencies between
them is such that they are certainly material, it is unsafe to convict on the basis of dying
declaration and due to these inconsistencies, the acquittal of accused should be justified.19
In the case of Kamla v. St. of Punjab20 , a bride burning case the victim made four dying
declarations with glaring inconsistencies, one implicating the accused and the other indicating
an incident as an accident. It was held that conviction of the accused could not be based on
one implicating him.

The admissibility of dying declaration rest upon the principle that a sense of impending death
produces in man’s mind the same feeling as that of conscientious and virtuous man under
oath.
When there are multiple dying declaration, each dying declaration has to be separately
assessed and evaluated independently on its own merits as to its evidentiary value and one
cannot be rejected because of certain variation in other as there are multiple dying declaration
and both are inconsistent hence the conviction cannot be made solely on the basis of the first
dying declaration and second should be taken into consideration as it was made before a
proper authority and there was no corroboration with first dying declaration, which is

16
State of mah. v. Sanjay; A.I.R 2005 SC 97
17
AIR 1953 SC 420
18
2009 S.C. 635
19
St. of Punjab v. Chatinder pal singh (AIR) 2009 SC 974
20
AIR 1993 SC 374

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mandatory if there are inconsistencies between both of them. Hence, the conviction of the
accused should be set aside.

It is most humbly submitted that the accused is also not liable under sec-304B and 498A of
I.P.C, 1860 for committing the offence of dowry death and cruelty respectively.

Section-304B states that Where the death of a woman is caused by burn or bodily injury or
occurs otherwise than under normal circumstances within 7 years of her marriage and it is
shown that soon before her death, she was subjected to cruelty or harassment by the
husband or any relative of her husband for, or in connection with any demand for dowry,
such death shall be called ‘dowry death’ and such husband or relative shall be deemed to
have caused her death.

The essential ingredients are-

 Death of a woman by burn or bodily injury.
 Death has been caused within seven years.
 Cruelty or harassment by the husband side in connection with any demand for dowry
soon before her death.

The most essential ingredient is the “cruelty or harassment” by the husband or relative of the
husband in connection with any dowry demand soon before her death.
But in the instant matter, there was no harassment or cruelty from the side of the accused
“soon before her death”, the said expression ‘soon before’ would normally imply that the
interval should it be much between the concerned cruelty or harassment and the death in
question. In other words, there must be existence of a proximate and live link between the
effect of cruelty based in dowry demand and the concerned death. If the alleged incident of
cruelty is remote in time and has become stale enough not to disturb the mental equilibrium
of the woman concerned, it would be of no consequences.21

21
Mustafa Sahadal sheikh v. St. Of Mah. 2012 Cr.L.J. 4763

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Similarly, in the instant case accused took the deceased for reconciliation after the time span
of two years and that too by the mutual consent, it clearly indicates that there was no essence
of harassment or cruelty soon before her death; it implies that section-304B is not applicable.

The same view was taken in the case of Saval Ram v. State of Maharashtra22 , it was held
that a harassment shown to have been taken place eight months before the death was held to
be not coming within the scope of words “ soon before”. The conviction under section 304-B
was set aside. Alongside insertion of sec 304-B in IPC, the legislature also introduced the
section 113-B of The Evidence act, which lays down that when the question as to whether a
person has committed a dowry death of a woman and it is shown that soon before her death
such woman had been subjected by such person to cruelty or harassment for , or in
connection with, any demand for dowry, the court shall presume that such person had caused
the dowry death.
Because the cruelty or harassment is not present here and this is the most essential ingredient
for dowry death. Hence, the court shall not presume under section-113B of The Indian
Evidence Act, 1872 for committing the offence of dowry death.

It was also laid down in the case of Nand Kishore v. State of Maharashtra23 that all the
ingredients of this section must exist conjunctively. There must be nexus between cruelty and
harassment to raise the presumption of dowry death under section-113B of The Evidence Act,
1872.

It is also supported by another landmark case i.e., Shamlal v. state of Haryana24 it was
held that no conviction under sec 304B is there as legal presumption under sec. 113- B cannot
be invoked as there was no evidence to prove that soon before her death deceased was
subjected to cruelty or harassment.

Moreover, there should also be a ‘Demand for Dowry’ along with harassment and cruelty for
convicting a person under sec 304- B of IPC. Here in this case, neither there was any
harassment or cruelty nor any demand for dowry from the side of the accused by which he
can be held guilty.

22
2003 Cr L.j 2831 (Bom.)
23
1995 Cr. LJ 3706
24
1997 Cr. LJ 1927 SC

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For convicting any offender, agreement for dowry is to be proved. When sec 304-B refers to
“Demand of Dowry”, it refers to the demand of the property or valuable security as referred
in the definition of “Dowry’’ under the act.25But where the demand for money is for some
specific purpose and for the welfare of the family and not for Dowry offence under sec. 304-
B is not attracted.

Because herein the instant case as well the accused had demanded the money for stabilizing
the business conditions and for welfare of the family hence it cannot be misinterpreted as
demand for dowry. And he also made the promise to return the same once the business got
stable. It implies he was merely asking for help when he was in dire need of money.

The case of Appasaheb v. state of Mah.26 Makes the above point more clear in which the
husband demanded money to meet domestic expenses and for purchasing manure about one
and a half year after marriage, the court said that such demands did not come in the category
of dowry demand. An essential ingredient under this sec being missing, the conviction under
this section was not sustainable.

Where the allegation was of dowry death caused by burn the husband was supposed to have
pour petrol on the wife and set her on fire. And the dying declaration did not implicate him
even remotely. There was no evidence of dowry torture also. Acquittal of the accused can be
the only choice with the court from the charge of sec 304 B of IPC. 27 In the case of
Gurucharan Kumar v. State of Raj28, where a bride ended her life within two and half
months of marriage and there being no proof against her convicted husband and in-laws, the
SC acquitted the in-laws on appeal.

Since, the two most essential ingredients i.e. ‘cruelty’ and ‘harassment’ soon before death and
dowry demand are lacking here and according to the aforesaid arguments and case laws, it is
well settled that a conviction cannot be made without establishing these two ingredients.
Hence, the conviction under section 304B should be set aside.

25
State of AP V. Raj Gopal Asawa; AIR 2004 SC 1933.
26
AIR 2007 SC 763
27
State of Mah. V. Satyabhama pandurang Raipur, 2003 Cr. LJ 1496 (BOM).
28
AIR 2003 SC 992.

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The accused is also not liable under section 498A of I.P.C. for committing the offence of
cruelty. Section 498A enumerates that-
Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine.

For the purpose of this section, “cruelty” means-

 Any willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman, or
 Harassment of the woman where such harassment is with the view to coercing her or
any other person or related to her to meet any unlawful demand for any property or
any valuable security.

But here in the instant case, there was no assault on the deceased which offends her dignity
and the other thing i.e. normal wear and tear between them in their married life does not
amounts to cruelty neither physically nor mentally and after the settlement of disputes also,
the husband and wife went for reconciliation and there was no complain from the side of the
deceased that she was subjected to cruelty by the accused. The above arguments clearly
indicate that the deceased was not subjected to cruelty by the accused.

It can be proved by the case of Keshab Chandra Panda v. St. of Orissa29, in which where
after a spell of cruelty, the husband and wife reconciled and resume joint life and it was found
that the husband left the wife back with her parents for a short spell and then took her back
and within two days informed her parents of her death, the wife made no complaint of
cruelty, etc. During her short stay with parents, the section of 498A could not come into play
because there was no complaint after reconciliation.

The other element i.e. an unlawful demand from the side of the accused is also necessary for
constituting the offence under section 498A of I.P.C. But here in the instant matter, there was
no unlawful demand from the side of the accused as he was asking merely for help when he

29
1995 1 CrL.J. 174 (ori.).

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was in dire need of money for stabilizing the business conditions and he had made promise
that he would return the same when the business gets stable.
Hence, we cannot relate the mere demand for help as unlawful demand.

A similar view was taken in the case of Vipin Jaiswal v. State30, where the demand of
rs.50,000 by the appellant from the family of the deceased to purchase a computer to set up
his own business does not amount to demand of dowry and the accused was acquitted under
section 304B and 498A of I.P.C and also in the case of Ramesh Chand v. state of UP31
same view was also taken, it was held that a complaint under sec 498A could succeed only if
it can be proved that there was an “unlawful demand” by the husband of some money. Mere
demand without settlement of dowry at the time of marriage is no offence.

Therefore, it can be concluded by stating that the accused and the deceased, after a span of 2
years went to a trip for reconciliation that too by the mutual consent of both the parties, it
clearly shows that there was no cruelty or harassment which was inflicted upon the deceased
by the husband and moreover normal wear and tear or conflicts between husband and wife
does nowhere proves that the accused had inflicted cruelty upon her and the money which
was used by the husband was taken for stabilizing his business and for the welfare of the
family was not an unlawful demand it was merely a simple demand for stabilizing his
business. Hence, from the above arguments the accused shall not be held liable under section
304B and 498A
Of I.P.C, 1860.

30
AIR 2013 SC 1567
31
1992 Cri. LJ 1444 (All.)

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PRAYER

IT IS HUMBLY SUBMITTED BEFORE THE HON’BLE HIGH COURT OF

RAJASTHAN THAT IN LIGHT OF THE ABOVE ARGUMENTS, CASES AND
AUTHORITIES CITED, THE APPELLANT HUMBLY PRAYS BEFORE THE
HON’BLE COURT:

 That the appeal should be maintainable under sec-374(2) of C.R.P.C, 1973 filled
by the appellant.
 That the appellant is not entitled for refunding back the stridhan property as
that stridhan property can be used by him in exceptional cases and must not be
held liable under section 406 of I.P.C, 1860.
 That the accused is not convicted under sec 302, 304B and 498A of I.P.C,1860.

AND/OR PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY

DEEM FIT IN THE INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND
GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE APPELLANT SHALL DUTY BOUND

FOREVER PRAYS.

COUNSEL ON BEHALF OF THE APPELLANT

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