Civil Appeal No.____/2017.

Criminal Appeal No. ___/ 2017.

IN THE MATTER PERTAINING TO SECTION 96 OF CIVIL PROCEDURE

CODE,1908 AND SECTION 374 OF CRIMINAL PROCEDURE CODE, 1973

RAJ KUMAR .....................................................................................APPELLANT

V.
STATE AND OTHERS......…………………………………………….RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES

OF

THE HON’BLE HIGH COURT OF RAJASTHAN

MEMORIAL ON BEHALF OF THE APPELLANT

 M EMORIAL ON B EHALF O F THE RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ II

INDEX OF AUTHORITIES ................................................................................................. IV
LIST OF ABBREVIATIONS................................................................................................ VI
STATEMENT OF JURISDICTION ................................................................................... VII
STATEMENT OF FACTS .................................................................................................. VIII
ISSUES RAISED .................................................................................................................... IX
SUMMARY OF ARGUMENTS .............................................................................................X
ARGUMENTS ADVANCED .................................................................................................. 1
ISSUE I: WHETHER HUSBAND HAD THE RIGHT TO SELL THE GOLD
ORNAMENTS ......................................................................................................................... 1
[I.A] THE GOLD ORNAMENTS CAME UNDER THE AMBIT OF STRIDHAN............................................. 1
[I.A.1] The gold ornaments received as gifts at the time of marriage constitute Stridhan ............. 1
[I.A.2] Gifts received from her in- laws also constitute Stridhan ................................................... 2
[I.B] EXPRESS CONSENT WAS REQUIRED BY HUSBAND ...................................................................... 2
[I.B.1] Wife hold the full ownership rights over the Stridhan......................................................... 2
[I.B.2] Joint locker does not give vested right to the husband to use Stridhan .............................. 3
[I.B.3] Voluntary offer does not amount to consent in the particular case .................................... 3
ISSUE II: WHETHER THE ACTS OF THE HUSBAND WARRANT A CHARGE OF
CRUELTY U/S 498A OF THE IPC ........................................................................................ 5
[II.A] WOMAN WAS MARRIED. ........................................................................................................... 5
[II.B] DECEASED WAS SUBJECT TO CRUELTY. ...................................................................................... 5
[II.B.1] Husband subjecting the woman to cruelty ......................................................................... 5
[II.B.2] Conduct of appellant to cause grave injury which includes mental injury ........................ 6
[II.B.3] Harassment of the deceased was due to not meeting the unlawful demand of dowry ....... 7
ISSUE III: WHETHER THE HUSBAND IS LIABLE UNDER S.304B OF IPC ............... 8
[III.A.]DEATH OF WOMAN MUST HAVE BEEN CAUSED BY BURNS OR BODILY INJURY OR HER DEATH
MUST HAVE OCCURRED OTHERWISE THAN UNDER NORMAL CIRCUMSTANCES, ............................. 8
[III.B]SUCH DEATH MUST HAVE OCCURRED WITHIN SEVEN YEARS OF HER MARRIAGE.................... 8
[III.C]SOON BEFORE HER DEATH, SHE MUST HAVE BEEN SUBJECTED TO CRUELTY OR HARASSMENT
BY HER HUSBAND OR ANY RELATIVE OF HER HUSBAND .................................................................... 9
[III.C.1]Deceased was subjected to Cruelty by Husband ............................................................... 9

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[III.C.2]Deceased was subjected to cruelty “soon before” her death............................................ 9

[III.D]SUCH CRUELTY OR HARASSMENT MUST BE IN CONNECTION WITH THE DEMAND FOR
DOWRY. ............................................................................................................................................. 10
[III.E]PRESUMPTION OF DOWRY DEATH UNDER SEC.113B OF EVIDENCE ACT ................................ 10
ISSUE IV: WHETHER THE HUSBAND IS LIABLE UNDER S.302 OF IPC ................ 11
[IV.A] ACTUS REUS ............................................................................................................................ 11
[IV.A.1]First Dying Declaration .................................................................................................. 11
[IV.A.2] Final Investigation Report .............................................................................................. 12
[IV.B] MENS REA PRESENT FOR COMMITTING THE CRIME .............................................................. 12
PRAYER ................................................................................................................................. 13

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INDEX OF AUTHORITIES

Cases

A. Dinohamy v. W.L. Balahamy AIR 1927 P.C. 185 ............................................................................. 5

Ajmer Singh v State of Punjab, AIR 1953 SC 76 ................................................................................. 12
Appasaheb v. State of Maharashtra, (2007) 9 SCC 721, Para 9 ........................................................... 10
Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 ..................................................................... x, 8
Bachni Devi &Anr.v. State of Haryana,(2011) 4 SCC 427 at 431 ..................................................... x, 8
Bachni Devi and Anr v. State of Haryana through Secretary, Home Department, (2011) 4 SCC 427 10
Bhagwandas Goverdhandas Kedia vs M/S. Girdharilal Parshottamdas, 1966 AIR 543 ..................... 4, 5
Bhai Jung Singh v. Virender Kaur, 1979 Cri. L J 493 ............................................................................ 3
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.................................................. 5
Commissioner of Income Tax v PatranuDass Raja Ram Beri, AIR 1982 ............................................ 12
HiraLal v. State (Govt. of NCT), Delhi; (2003) 8 SCC 80 ................................................................... 10
Inder Raj Malik v Sunita Malik 1986 (92) CRLJ 1510 .......................................................................... 7
J.N. Bagga And Ors. vs All India Reporter Ltd., AIR 1969 Bom 302 ................................................... 4
Jagdish v. State of Uttaranchal, (2015) 2 SCC 252, 25-11-2014 ............................................................ 8
K Veeraswami v Union of India (1991) 3 SCC 655 ............................................................................... 7
Kaliyaperumal v. State of Tamil Nadu, 2004 (9) SCC 157 .................................................................... 9
Kisan Sahkari Chini Mills Ltd. vs Vardan Linkers & Ors, Civil Appeal 5543 of 2004 ......................... 4
Krishna Bhatacharjee v. Sarathi Choudhury, Criminal Appeal No. 1545 of 2015 ............................. 1, 3
Kulwant Singh &Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185, .......................................... x, 8
Laxman v. State of Maharashtra, AIR 1974 SC 1803........................................................................... 12
M/S. Dhanrajamal Gobindram vs M/S. Shamji Kalidas And Co, 1961 AIR 1285 ................................. 4
ManoharLal v. State of Haryana; AIR 2014 SC 2555 ............................................................................ 9
Mohd. Hoshan, A.P. &Anr vs State Of A.P (2007) SCC 414 ................................................................ 6
Munnu Raja &Anrvs The State Of Madhya Pradesh, AIR 1976 SC 2199 ........................................... 12
PadmabenShamalbhai Patel vs State Of Gujarat, 1991 (1) SCC 744 ................................................... 12
Parveen Mehta vs Inderjit Mehta, Supreme Court of India AIR 2002 SC.............................................. 6
Pathan HussainBashav. State of A.P., (2012) 8 SCC 594 at 599, ....................................................... x, 8
Pawan Kumar v. State of Haryana, AIR 1998 SC 958 ......................................................................... 10
Pawan Kumar v. State of Haryana; AIR 1998 SC 958 ........................................................................... 7
Phool Singh v. State of M.P, II (1998) DMC 632................................................................................... 9
PinakinMahipatrayRawal vs State Of Gujarat (2013) 10 SCC 48 .......................................................... 7
Pratibha Devi v. Suraj Kumar, 1985 AIR 628 .................................................................................... 1, 3
Ramesh DalajiGodad v. State of Gujarat, II (2004) DMC 124 ......................................................... 6, 10
Shankar Prasad v. State of W.B; 1991 CrLJ639 (Cal) ............................................................................ 7
Shivcharan Lal Verma&Anr. v. State of M.P. (2007) 15 SCC 369; ....................................................... 6
State of West Bengal v. Mir Mohammad Omar and Others, [2000 (8) SCC 382] ................................. 7
Subir Das @ Bapi Das &Anr. v. State of West Bengal, 2006 (4) CHN 231 ...................................... x, 5
Surinder Singh v. State of Haryana, (2014) 4 SCC 129.......................................................................... 9
Surinder Singh v. State of Haryana, (2014) 4 SCC 129 at 137. .......................................................... x, 8
U. Suvetha v. State By Inspector of Police &Anr. (2009) 6 SCC 757.................................................... 6

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VijetaGajra v. State of NCT of. Delhi, AIR 2010 SC 2712 .................................................................... 6

Vinod Kumar Sethi v. State of Punjab, AIR 1982 P&H 372 .................................................................. 2

Other Authorities

Dhirajlal and Ratanlal, The Indian Penal Code, (32nd Enlarged Edition, 2013) Pg. 2755 ...................... 5
Hale P.C. 290, Best Evidence, 10th Ed., Sec.95 .................................................................................... 13
NR Raghavachariar in Hindu Law (5th Edn.) at pg 533 Section 487 ..................................................... 2
R.P. Kathuria’s, Supreme Court on Criminal Law, 1950-2002,Vol. 1 , 6th Ed. (2002) at p. 158 ........ 11

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LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AIR All India Reporter

Bom Bombay

Cr. Criminal

Cr. LJ Criminal Law Journal

DLT Delhi Law Times

Mad Madras

MPLJ Madhya Pradesh Law Journal

Nag. Nagpur

SC Supreme Court

SCC Supreme Court Cases

v. Versus

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STATEMENT OF JURISDICTION

The Appellant seeks the honor to submit before the Hon’ble High Court of Rajasthan the
Memorandum of the Appellant under Section 96 of the Civil Procedure Code, 1908 and
Section 374 of the Criminal Procedure Code, 1973.

SECTION 96 OF THE CIVIL PROCEDURE CODE, 1908:

“96. Appeal from original decree

(1) Save where otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie from every decree passed by any court exercising
original jurisdiction to the court authorized to hear appeals from the decisions of such court.

SECTION 374 OF THE CRIMINAL PROCEDURE CODE, 1973:

“374. Appeals from Convictions

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other Court in which a sentence of imprisonment for more than
seven years has been passed against him or against any other person convicted at the same
trial, may appeal to the High Court.”

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STATEMENT OF FACTS

1. The Appellant is a successful property dealing businessman in Kuru, Rajasthan,

married to Malini in 2011, with whom he had a daughter in 2012.
2. In September, 2013, the Appellant’s business suffered a loss, for which he had
requested his wife to procure 20 lakhs from her parents, instead of selling her
jewellery as she suggested, which would be repaid once the business stabilized, the
refusal to which had ensued a fight between the couple.
3. The wife, on refusal to know about the status of business, went to sell her jewellery,
which she found out had already been sold by her husband 5 months ago for the
business, due to which she filed a case in the Family Court against him and lost, post
which she filed an appeal in the High Court.
4. In 2015, the couple decided to spend the vacations on a hill station with their friendfor
the purpose of reconciliation, during which the wife was found burning and the
Husband unconscious.
5. Two Dying Declarations were given – one recorded by their friend, accusing the
Appellant of setting her on fire and the other stating that she had done so herself.
6. The Trial Court, after completion of investigation, convicted him under Sections 302,
304B and 498A IPC and sentenced the Appellant to life imprisonment.
7. The Appellant has filed an appeal in the High Court of Rajasthan relying on the
second Dying Declaration made by the Deceased.

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ISSUES RAISED

ISSUE I:

WHETHER HUSBAND HAD THE RIGHT TO SELL THE GOLD ORNAMENTS

ISSUE II:

WHETHER THE ACTS OF THE HUSBAND WARRANT A CHARGE OF

CRUELTY U/S 498A OF THE IPC

ISSUE III:

WHETHER THE HUSBAND IS LIABLE UNDER S.304B OF THE IPC

ISSUE IV:

WHETHER THE HUSBAND IS LIABLE UNDER S.302 OF THE IPC

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER HUSBAND HAD THE RIGHT TO SELL THE GOLD

ORNAMENTS

It is contended before the Hon’ble Court that husband had no right to sell off the gold
ornaments held in the joint account because [I.A] the aforesaid gold ornaments came under
the ambit of Stridhan of the wife [I.B] express consent was required by the husband to use
them.

ISSUE II: WHETHER THE ACTS OF THE HUSBAND IN THE PRESENT CASE
AMOUNT TO CRUELTY UNDER SECTION 498A OF THE INDIAN PENAL CODE

It is humbly contented that the appellant should be convicted under 498A of the Indian Penal
Code. The essentials for proving cruelty are [II.A] Woman was married. [II.B] Deceased was
subject to cruelty.

ISSUE III: WHETHER THE HUSBAND IS LIABLE UNDER S.304B OF THE IPC

It is humbly contended before this Hon’ble Court that Appellant is liable for conviction under
Sec.304B IPC as the ingredients to attract this provision are fulfilled. Courts have time and
again construed1 the section to have the following ingredients: [III.A.]Death of woman must
have been caused by burns or bodily injury or her death must have occurred otherwise than
under normal circumstances, [III.B]Such death must have occurred within seven years of her
marriage, [III.C]Soon before her death, she must have been subjected to cruelty or
harassment by her husband or any relative of her husband; and [III.D]Such cruelty or
harassment must be in connection with the demand for dowry. [III.E]Presumption of Dowry
Death under Sec.113B of Evidence Act

ISSUE IV: WHETHER THE HUSBAND IS LIABLE UNDER S.302 OF THE IPC

It is humbly contended in front of the Hon’ble Court that Mr.Raj Kumar, the Appellant, is
guilty of murder and liable for conviction under Sec.302 r/w Sec.300 IPC. Also, every

1
Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 at pages 360-361; Bachni Devi &Anr.v. State of
Haryana,(2011) 4 SCC 427 at 431, Pathan HussainBashav. State of A.P., (2012) 8 SCC 594 at 599, Kulwant
Singh &Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185, Surinder Singh v. State of Haryana, (2014) 4
SCC 129 at 137.

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offence involving Section 304B is to be tried along with Section 302 as per the order of the
Apex Court so that stricter punishment could be given to the people involved in such barbaric
and heinous crimes. It is humbly contended that the Appellant in the present matter had both
the [IV.A]Actus Reus and the [IV.B]Mens Rea present for committing the crime.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER HUSBAND HAD THE RIGHT TO SELL THE GOLD

ORNAMENTS

It is contended before the Hon’ble Court that husband had no right to sell off the gold
ornaments held in the joint account because [I.A] the aforesaid gold ornaments came
under the ambit of Stridhan of the wife [I.B] express consent was required by the
husband to use them

[I.A] THE GOLD ORNAMENTS CAME UNDER THE AMBIT OF STRIDHAN

The gold ornaments as used in the aforesaid case came within the purview of Stridhan
which is the absolute property of the wife.2 The said is contended because [I.A.1] The
gold Ornaments were received as gifts during the time of the marriage, [I.A.2] The
ornaments given by in laws also constitute Stridhan

[I.A.1] The gold ornaments received as gifts at the time of marriage constitute
Stridhan
It is contended that the gold ornaments were received by the appellant as gifts from
her parents, in-laws and other relatives from both sides.3 S.14 of the Hindu
Succession Act states the following

‘Any gift received from any person whether relative or not before, at or after the
marriage by the wife shall be held by her in absolute ownership.’4

As per Hindu law, ‘stridhan,’ may include a gift in gold valuables given to a woman
by her family at any time out of love, care and affection for her and is deemed to be
her exclusive property.5 The court has also reiterated the fact and held that the
ornaments given for the use of the wife are to be held in her complete ownership.6
Furthermore it is laid down that gold ornaments given at time of the marriage are

2
Section 14, Hindu Succcession Act
3
Moot Proposition, p.1
4
Explanation S.14(1), Hindu Succession Act
5
Mulla’s Hindu Law, p. 168, S.113
6
Krishna Bhatacharjee v. Sarathi Choudhury, Criminal Appeal No. 1545 of 2015, Pratibha Devi v.
Suraj Kumar, 1985 AIR 628

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deemed to be her exclusive property and a civil or a criminal suit may be brought
against anyone who tries to deprive her of it.7

Therefore it is humbly submitted before the court that the gold ornaments received at
the time of the marriage constitute the Stridhan of the wife.

[I.A.2] Gifts received from her in- laws also constitute Stridhan
It is contended that the gifts received from the paternal in laws also constitute
Stridhan. It further includes all the relatives from the groom’s side besides father-in-
law as well as mother-in-law.8 Therefore a the husband’s contention that the gold
ornaments were gifted to the wife by his parents does not affect the right of the wife
and the aforesaid property still lies in the ambit of her Stridhan.9

According to the age old Smritis and all old schools of Hindu law such as Dayabhaga,
Mitakshara etc. Streedhan includes gifts made in token of love by father-in-law and
mother-in-law.10 The Court has laid down a very clear decision in the in the case of
Bhai Jang Singh v. Virender Kaur,11 wherein it was held that

The property, ornaments, money and other belongings received at time of the
marriage to the wife by her in-laws constitutes her Stridhan.

Therefore it is submitted before the Hon’ble Court that gifts received from paternal in
laws out of love and affection constitute Stridhan of the wife.

[I.B] EXPRESS CONSENT WAS REQUIRED BY HUSBAND

It is contended that an express consent is required on part of the husband in order to

use the Stridhan of the wife because [I.B.1] wife holds the full ownership rights over
Stridhan [I.B.2] Joint locker does not give vested right to the husband to use Stridhan
[I.B.3] Voluntary offer does not amount to consent in the particular case

[I.B.1] Wife hold the full ownership rights over the Stridhan
It is contended that wife holds full and absolute ownership over her Stridhan.

7
Vinod Kumar Sethi v. State of Punjab, AIR 1982 P&H 372
8
Section 14, Hindu Succession Act, 1956
9
Moot Proposition, p.3
10
Supra note 4
11
1979 Cri. L J 493

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In the case of Prathiba Rani v. Suraj Kumar12 it was clearly laid down that

The position of Streedhan among the Hindus is very clear and un-ambiguous. In cases
of ‘Streedhan’, the woman is to be treated as the absolute owner of her property. This
property is for her use and satisfaction and further it was also added that such a
property can be gifted or willed away without the consent of the husband.

The court has also laid down that all gifts made over to a woman at the time of her
marriage remained her absolute private property till the end; and that her husband, or
any other, had no right to them without her sanction.13

Therefore it is submitted before this Hon’ble Court that wife has the full ownership
right over her Streedhan and husband is not allowed to alienate it without her
approval.

[I.B.2] Joint locker does not give vested right to the husband to use Stridhan
It is contended that Joint locker may not suffice to give a vested right to the husband
to use Stridhan of the wife. Mere joint custody of the gifts received to the wife at time
of the marriage does not give the joint ownership and right to alienate the said
property to the husband or any other member of the family.14

The Apex Court has explained that mere joint holding by a husband of the ‘Stridhan’
property did not constitute any legal partnership or co-ownership between the
husband and his wife. The court opined that a wife can file a civil suit under the S. 14
of Hindu Succession Act and under S. 27 of the Hindu Marriage Act, if the husband
declines to return the ‘Streedhan’ property of his wife.15

Thus it is submitted before the Hon’ble Court that joint locker does not give vested
right to the husband to use Stridhan as joint property of husband and wife.

[I.B.3] Voluntary offer does not amount to consent in the particular case
It is contended that voluntary consent given by the wife amounted to no consent in the
particular case. Though it has been expressly stated that wife voluntarily offered to
dispose off the Stridhan16 however it doesnot amount to consent on part of the wife.

12
1985 AIR 628
13
Krishna Bhatacharjee v. Sarathi Choudhury, Criminal Appeal No. 1545 of 2015
14
Bhai Jung Singh v. Virender Kaur, 1979 Cri. L J 493
15
Pratibha Devi v. Suraj Kumar, 1985 AIR 628
16
Moot Proposition, p.1/P

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The aforesaid is contended because [I.B.3.1]No acceptance on part of the husband

therefore [I.B.3.2]No agreement is constituted.

[I.B.3.1]No Acceptance on part of the husband

It is contended that there was no acceptance on the part the husband for the offer
made by the wife.

An offer is defined as an act of the person signifying to another his willingness to do

or abstain from doing something with view of obtaining assent of the other.17 Further
acceptance is defined as an expression of assent by the person to whom the offer is
made.18 An acceptance should be absolute and should be in consonance to the offer
made.19 This means that there should a consensus ad idem between the parties.20 In
the present case the voluntary offer of the wife was rejected by the husband.21
Therefore there was no acceptance on the part of the husband. Furthermore, when an
acceptance is given an altered manner it merely amounts to counter offer rather than
acceptance.22

Therefore it is submitted that there was no acceptance given to the voluntary offer of
the wife to dispose off the Stridhan in the present case.

[I.B.3.2]No agreement between husband and wife.

It is contended that in the vacuum of acceptance given by the husband to the offer
made to the wife there is no agreement between them.

As per law, for a valid agreement there must be an offer and acceptance to the same
offer.23 Moreover, meeting of minds of the parties to the same thing and in the same
sense is of pivotal importance.24 In the present case as it has already been proved
earlier that there was no acceptance to the offer made by the wife therefore there was
no agreement. Furthermore, when an agreement breaks down the offer and the

17
S.2(a) Indian Contract Act, 1872
18
S. 3, Indian Contract Act
19
S.7 Indian Contract Act, 1872; Bhagwandas Goverdhandas Kedia vs M/S. Girdharilal
Parshottamdas, 1966 AIR 543
20
M/S. Dhanrajamal Gobindram vs M/S. Shamji Kalidas And Co, 1961 AIR 1285
21
Moot Proposition p.1/P2
22
Bhagwandas Goverdhandas Kedia vs M/S. Girdharilal Parshottamdas, 1966 AIR 543; J.N. Bagga
And Ors. vs All India Reporter Ltd., AIR 1969 Bom 302
23
Kisan Sahkari Chini Mills Ltd. vs Vardan Linkers & Ors, Civil Appeal 5543 of 2004
24
Bhagwandas Goverdhandas Kedia vs M/S. Girdharilal Parshottamdas, 1966 AIR 543

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acceptance breaks along with it unless otherwise opined by either of the parties. Thus
in the present case the offer of the wife stands nullified in absence of the agreement at
the prima facie instance.

Therefore it is submitted before the court that the husband was not allowed to
disposed off the Stridhan based on the voluntary offer of the wife.

ISSUE II: WHETHER THE ACTS OF THE HUSBAND WARRANT A

CHARGE OF CRUELTY U/S 498A OF THE IPC

It is humbly contented that the appellant should be convicted under 498A of the
Indian Penal Code. The essentials for proving cruelty25 are [II.A] Woman was
married. [II.B] Deceased was subject to cruelty.

[II.A] WOMAN WAS MARRIED.

In year 2011, Raj got married to one Malini as per Hindu rites and ceremonies. Even
if the marriage is not registered, there exists a presumption of marriage due to long
time of cohabitation.26

[II.B] DECEASED WAS SUBJECT TO CRUELTY.

It is contended that the deceased was subjected to cruelty because all the essential
ingredients of cruelty are satisfied in the particular case27 as per S.498A of IPC. Thus
it is contended that

[II.B.1] Husband subjecting the woman to cruelty

The Supreme Court of India has held that husband is held liable for subjecting his
wife to cruelty under Sec. 498A would.28

25
Subir Das @ Bapi Das &Anr. v. State of West Bengal, 2006 (4) CHN 231
26
A. Dinohamy v. W.L. Balahamy AIR 1927 P.C. 185; Chanmuniya v. Virendra Kumar Singh
Kushwaha, (2011) 1 SCC 141
27
Moot Proposition p.
28
U. Suvetha v. State By Inspector of Police &Anr. (2009) 6 SCC 757; Shivcharan Lal Verma&Anr.
v. State of M.P. (2007) 15 SCC 369; VijetaGajra v. State of NCT of. Delhi, AIR 2010 SC 2712

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[II.B.2] Conduct of appellant to cause grave injury which includes mental injury
It is contended that the deceased was subject to cruelty by the husband by causing
mental agony to the Deceased because of persistent arguments about the money she
that had to be obtained from her parents.29

Cruelty varies from person to person where some meet with courage and some suffer
in silence and some end their life. To prove that cruelty was caused under Explanation
a) of S.498A IPC it is not important to show or put forth that the woman was beaten
up- abusing her verbally, denying her conjugal rights or even not speaking to her
properly would fall into the ambit of mental cruelty. 30Mental cruelty is that which
occurs on the party such mental pain and suffering that it will become impossible to
live together but it need not be proved that such cruelty can cause injury to the health
of the petitioner.31

In the present case, the cruelty finds its basis from the judgment of the Sessions Court
holding the appellant husband liable under Section 498A of IPC32. Cruelty varies
from person to person depending on the intensity of sensitivity and the degree of
courage or endurance to withstand such mental cruelty. In other words, each case has
to be decided on its own facts to decide whether the cruelty was established or not.33

According to the fact matrix, the appellant was persistent about his demand for the
sum (Rs. 20,00,000) to be procured from the deceased’s parents which led to a lot of
heated discussions, often ending in insinuating snide remarks by the appellant, even
saying that he wasn’t graced with enough at the time of their marriage. 34 These
constant arguments and tussles over sums of money would constitute not talking to
her properly. The fact that even after two years of the case being decided, they still
needed a family vacation for reconciliation of their difference, suggests the strained
nature of the relationship the Deceased was dealing with soon before her death.

According to the Indian Evidence Act35, the court is to assume the husband to be
guilty of cruelty if the death happened in the matrimonial house within a period of 7

29
Factsheet Page 2
30
Ramesh DalajiGodad v. State of Gujarat, II (2004) DMC 124
31
Parveen Mehta vs Inderjit Mehta, Supreme Court of India AIR 2002 SC
32
Moot Proposition
33
Mohd. Hoshan, A.P. &Anr vs State Of A.P (2007) SCC 414
34
Factsheet Page 1
35
Section 113B of Indian Evidence Act

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years. Therefore, it has been held that a statute placing burden on the appellant cannot
be regarded as unreasonable, unjust or unfair.36 It is held that if a woman commits
suicide within 7 years of marriage then her husband or relative of husband is held
liable for cruelty but the burden of proving the same that the offence occurred under
Section 498a of IPC is on the prosecution.37Hence, the burden of proof lies on the
Appellant to prove that the Sessions Court erred in their judgment, and if there are no
irregularities in the evidences produced.

Therefore it is submitted that there was a conduct on part of the appellant to cause
grave mental injury and the burden of proof to prove to deny the same lies upon the
appellant.

[II.B.3] Harassment of the deceased was due to not meeting the unlawful demand
of dowry
It is contended that mere demand for dowry is offence by virtue of clause (b) of
explanation to Sec.498A38. The demand from the parents of the wife comes within the
ambit of Section (2) of The Dowry Prohibition Act, 1961. This reinforces the
contention of Cruelty by Persistent Demand39, a type of cruelty exercised by the
persistence of a demand to an extent where it leads to extraneous situations between
the parties at regular intervals of time. The pristine rule which is no fossilized doctrine
as though it admits no process of intelligent reasoning.40Cruelty41 or harassment under
498A need not be physical, but mental torture42 in grave case is also sufficient for
conviction.43

The husband on many occasions pressured the wife into making the demand for the
desired sum even when he had arbitrarily sold her jewelry without even asking for her
consent.44When the harassment/cruelty is meted out to a woman within the four walls
of her matrimonial house, it is difficult to get independent witnesses to depose about

36
K Veeraswami v Union of India (1991) 3 SCC 655
37
PinakinMahipatrayRawal vs State Of Gujarat (2013) 10 SCC 48
38
Shankar Prasad v. State of W.B; 1991 CrLJ639 (Cal)
39
Inder Raj Malik v Sunita Malik 1986 (92) CRLJ 1510
40
State of West Bengal v. Mir Mohammad Omar and Others, [2000 (8) SCC 382]
41
Cruelty may be defined as a dominating conduct, which is a departure from the normal standard of
the conjugal relationship that causes an injury to the health and happiness of the other spouse; Gollinv.
Gollin; (1963) 2 All ER 966
42
Supra Note 5
43
Pawan Kumar v. State of Haryana; AIR 1998 SC 958
44
Factsheet ¶ 2

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it.45, hence the submissions of the investigation report and the verdict of the Sessions
court must be accepted.

It is submitted that the Appellant should be held liable for commission of cruelty u/s
498A.

ISSUE III: WHETHER THE HUSBAND IS LIABLE UNDER S.304B OF IPC

It is humbly contended before this Hon’ble Court that Appellant is liable for
conviction under Sec.304B IPC as the ingredients to attract this provision are
fulfilled. Courts have time and again construed46 the section to have the following
ingredients: [III.A.]Death of woman must have been caused by burns or bodily injury
or her death must have occurred otherwise than under normal circumstances,
[III.B]Such death must have occurred within seven years of her marriage,
[III.C]Soon before her death, she must have been subjected to cruelty or harassment
by her husband or any relative of her husband; and [III.D]Such cruelty or harassment
must be in connection with the demand for dowry. [III.E]Presumption of Dowry
Death under Sec.113B of Evidence Act

[III.A.]DEATH OF WOMAN MUST HAVE BEEN CAUSED BY BURNS OR

BODILY INJURY OR HER DEATH MUST HAVE OCCURRED OTHERWISE

THAN UNDER NORMAL CIRCUMSTANCES,

It is submitted that the Deceased hadsuffered 80% burns47, which is the cause of
death.

[III.B]SUCH DEATH MUST HAVE OCCURRED WITHIN SEVEN YEARS OF

HER MARRIAGE

45
Jagdish v. State of Uttaranchal, (2015) 2 SCC 252, 25-11-2014
46
Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 at pages 360-361; Bachni Devi &Anr.v. State
of Haryana,(2011) 4 SCC 427 at 431, Pathan HussainBashav. State of A.P., (2012) 8 SCC 594 at 599,
Kulwant Singh &Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185, Surinder Singh v. State of
Haryana, (2014) 4 SCC 129 at 137.
47
Medical Report of Malini

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It is submitted that the marriage between the Appellant and the Deceased took place
in 2011, and was solemnized in the town of Kuru, Rajasthan. The Deceased had died
at around 2 a.m. on 10/10/2015, which is around 4 years after the marriage took place.

[III.C]SOON BEFORE HER DEATH, SHE MUST HAVE BEEN SUBJECTED TO

CRUELTY OR HARASSMENT BY HER HUSBAND OR ANY RELATIVE OF

HER HUSBAND

It is contended that the Deceased has been subjected to cruelty by the Husband soon
before her death.

[III.C.1]Deceased was subjected to Cruelty by Husband

Unlike Sec.498A IPC, cruelty hasn’t been defined under Sec.304B. Courts have
construed cruelty under Sec.304B to mean the same as under Sec.498A. 48 Sec.304B is
an aggravated form of Sec.498A.49 It is submitted that the Appellant had harassed the
Deceased on several occasions for an unlawful demand of 20 lakhs from her parents
and they would have heated arguments regarding the same and even insisted that she
‘demand’ the money from her parents, thereby subjecting her to severe mental cruelty
and anguish by insulting and humiliating her50. The Deceased was made to face
severe mental and emotional harassment by the repeated expressed discontent over
how much the Appellant received from the Deceased’s side of the Family.

[III.C.2]Deceased was subjected to cruelty “soon before” her death

The question as to how soon is “soon before” is determined by the Courts by applying
the Proximity test.51 This is to show that there was a proximate and live link between
the harassment and the death52 and the facts must show a nexus between them53. In
the present case, there were persistent arguments between the Appellant and the
Deceased for two months, a case had been filed against the Husband and subsequently
an appeal against him. Harassment or Cruelty under this provision includes not only
physical, but also mental torture54 and is sufficient for conviction55. It is inferred that

48
Kaliyaperumal v. State of Tamil Nadu, 2004 (9) SCC 157
49
Phool Singh v. State of M.P, II (1998) DMC 632
50
Surinder Singh v. State of Haryana, (2014) 4 SCC 129
51
ManoharLal v. State of Haryana; AIR 2014 SC 2555
52
HiraLal v. State (Govt. of NCT), Delhi; (2003) 8 SCC 80
53
Bachni Devi and Anr v. State of Haryana through Secretary, Home Department, (2011) 4 SCC 427
54
Ramesh DalajiGodad v. State of Gujarat, II (2004) DMC 124

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there were still arguments happening between the Appellant and the Deceased, as they
wanted to work on their relationship and reconcile. The persistent arguments indicate
mental cruelty towards the Deceased up until her death.

Further, the noises from the room and the screams, right before the Deceased was
found burning, indicate that there was a scuffle between them, during which he set her
on fire.

[III.D]SUCH CRUELTY OR HARASSMENT MUST BE IN CONNECTION WITH

THE DEMAND FOR DOWRY.

For the purpose of Sec.304B, the definition of Dowry is same as under Sec.2 of the
Dowry Prohibition Act, 1961. The accused had started out by telling her to ask her
Parents money for his business, but after the Deceased lawfully refused to do so, the
Appellant started harassing her and forcing her to ‘demand’ money from her parents,
after which it turned into demands with the contention that the Deceased’s parents
haven’t provided him enough at the time of marriage.56In the present case, the
demand was being made with the fact that enough had not been given at the time of
marriage by the Deceased’s family, thereby relating the both, bringing it within the
purview of Dowry as construed by the Courts.57

[III.E]PRESUMPTION OF DOWRY DEATH UNDER SEC.113B OF EVIDENCE

ACT

If all the ingredients of Sec.304B IPC satisfied, the Court shall presume 58 that such a
person has caused Dowry Death.59If the defence fails to prove the natural or suicidal
death, the Prosecution’s case is established60as the “shall presume” used in the
language of this section shows the presence of heavy onus on the accused to disprove

55
Pawan Kumar v. State of Haryana, AIR 1998 SC 958
56
Para 2, Facts Sheet
57
Appasaheb v. State of Maharashtra, (2007) 9 SCC 721, Para 9
58
State of Rajasthan v. Jaggu Ram; (2008) 12 SCC 51
59
ibid
60
Yashodav. State of MP; (2004) 3 SCC 98

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the same.61When it is proved by the prosecution that the soon before the deceased’s
death, she was subjected to cruelty and harassment by her husband in connection with
demand of dowry, it falls within the meaning of dowry death and presumption under
Section 113B is rightly invoked.62

Hence, it is humbly contended that the ingredients of Section 304B are satisfied and
tosustain the conviction of the Lower Court.

ISSUE IV: WHETHER THE HUSBAND IS LIABLE UNDER S.302 OF IPC

It is humbly contended in front of the Hon’ble Court that Mr.Raj Kumar, the
Appellant, is guilty of murder and liable for conviction under Sec.302 r/w Sec.300
IPC. Also, every offence involving Section 304B is to be tried along with Section 302
as per the order of the Apex Court63 so that stricter punishment could be given to the
people involved in such barbaric and heinous crimes. It is humbly contended that the
Appellant in the present matter had both the [IV.A]Actus Reus and the [IV.B]Mens
Rea present for committing the crime.

[IV.A] ACTUS REUS

In this case, the Actus Reus is established by way of [IV.A.1]First Dying Declaration
[IV.A.2] Final Investigation Report

[IV.A.1]First Dying Declaration

It is submitted that the First Dying Declaration needs to be relied upon, placing
reliance on the legal maxim nemomoriturusproesumiturmentir meaning “A man will
not meet his maker with a lie on his mouth”. It is a well-established fact that
declarations made on the verge of death is a situation so solemn that the Law
considers that equivalent to a positive oath administered in a Court of justice, and
therefore attaches great solemnity and sanctity to them.64and make admissible the
premise that no dying person would implicate another person falsely in the

61
Anand Kumar v. State of M.P., AIR 2009 SC 2155
62
Ranjit Singh v. State of Punjab; AIR 2013 SC 2991
63
Rajbir @ Raju v. State of Haryana, AIR 2011 SC 568
64
Munnu Raja &Anrvs The State Of Madhya Pradesh, AIR 1976 SC 2199

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commission of a serious crime65. It cannot be said that a woman who nearly

experienced death would lie about the person who had committed the offence.

Further, it is submitted that the second Dying Declaration cannot be relied upon
because it is possible for the Deceased to have, at the time of making it, realize that
her 3 year old daughter would be left with no natural parent to look after her, thereby
causing her to give an alternate Dying Declaration, so that the Appellant would not e
convicted.

[IV.A.2] Final Investigation Report

The Investigation Officer, after thorough investigation, has concluded that the wife
had indeed set on fire by the Husband. It is not enough for the High Court to take
different view of evidence; there must be substantial and compelling reasons for
holding that the trial court was wrong.66 It is to be kept in mind that the Trial court
had the opportunity to look and examine the accused and the witnesses first hand and
give a judgment based on that, which is why the Judgment needs to be given certain
weight. Also, the noises coming from the room and then the screams indicate that
there had been a scuffle, during which she had been set on fire.

[IV.B] MENS REA PRESENT FOR COMMITTING THE CRIME

Mens Rea translates to guilty intention67. Motive to kill can be inferred from the acts
and the nature of the injuries caused to the Deceased.68 In the present case, the Wife
had an appeal pending against the Husband in the High Court, which is a financial
burden, as well as an insult in the eyes of the public to the Husband, especially since
he was a successful businessman dealing in property, as someone who stole his wife’s
property.Also, the fact that they were there for reconciliation suggests that there was
still arguments going on between them, thereby supporting the proof of Mensrea.

Therefore, it is humbly contended that the Appellant is guilty of murder under

Sec.302 r/w Sec.300 of the IPC and that the conviction needs to sustain.

65
PadmabenShamalbhai Patel vs State Of Gujarat, 1991 (1) SCC 744
66
Ajmer Singh v State of Punjab, AIR 1953 SC 76
67
Commissioner of Income Tax v PatranuDass Raja Ram Beri, AIR 1982 PH 1, 4
68
Laxman v. State of Maharashtra, AIR 1974 SC 1803

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PRAYER

Wherefore, in the light of the facts explained, issues raised, arguments advanced,
reasons given and authorities cited, this Hon’ble Court may be pleased to:

1. Reverse the order of Family Court and Direct the appellant to revive the
Stridhan of the respondent.

2. Uphold the order of the Sessions Court and Hold the appellant liable under
Section 302, 304B and 498A of IPC.
AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity, and Good
Conscience.

COUNSEL FOR THE RESPONDENT

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