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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

BEFORE THE COURT OF SESSIONS AT PANAJI, GOA

S.C. NO.467 OF 2013

STATE OF GOA (PROSECUTION) v. MAJ. (RETD.)J.S.RANA (DEFENCE)

FOR OFFENCES CHARGED UNDER: SECTION 396 READ W ITH SECTION 302 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

ii SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 TABLE OF CONTENTS

TABLE OF CONTENTS Table of Contents

ii

List of Abbreviations

iii

Index of Authorities

iv

Table of Cases

iv

Books

vi

Lexicons

vii

Websites

vii

Statutes

vii

Statement of Jurisdiction

viii

Statement of Facts

ix

Statement of Charges

x

Summary of Arguments

xi

Arguments Advanced

1

Issue-I

1

Whether Maj Rana is guilty of Dacoity?

1

Issue-II

7

Whether Maj Rana is guilty of Murder?

7

Prayer

16

MEMORANDUM ON BEHALF OF THE PROSECUTION

iii SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

AIR

All India Reporter

All

Allahabad High Court

Cal

Calcutta High Court

Cri LJ / Cr LJ

Criminal Law Journal

Cr.P.C.

Code of Criminal Procedure

Del

Delhi High Court

DW

Defence Witness

Ed.

Edition

Guj

Gujarat High Court

IPC

Indian Penal Code

IC

Indian Cases

Mad

Madras High Court

n.

Foot Note no.

Ori

Orissa High Court

p.

Page No.

P&H

Punjab and Haryana High Court

Pat

Patna High Court

PW

Prosecution Witness

Raj

Rajasthan High Court

SC

Supreme Court

SCC

Supreme Court Cases

SCJ

Supreme Court Journal

SCR

Supreme Court Reporter

Sec.

Section

v.

Versus

MEMORANDUM ON BEHALF OF THE PROSECUTION

iv SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 INDEX OF AUTHORITIES

INDEX OF AUTHORITIES TABLE OF CASES: 1.

Amar Malla v State of Tripura, AIR 2002 SC 3052

2.

Ambalal v State of Rajasthan, 2003 Cr LJ 115

3.

Asha v State of Rajasthan, AIR 1997 SC 2828

4.

Badshah Singh v State, AIR 1958 All 677

5.

Bakshish Singh v State of Punjab, AIR 1971 SC 2016

6.

Bhanwar Singh v State of MP, (2008) 16 SCC 657

7.

Bhupendrasingh A Chudasma v. State of Gujarat AIR 1997 SC 3790

8.

Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1

9.

Deonandan Mishra v State of Bihar (1955) 2 SCR 750

10.

Gopal Naidu v. Emperor AIR 1923 Mad 523

11.

Hari Singh v State of Rajasthan, AIR 1997 SC 1505

12.

Harish Chandra Thange v State of Maharashtra, AIR 2007 SC 2957

13.

Jagdish v. State of Madhya Pradesh, 1981 CriLJ 630

14. 15. 16. 17.

Joginder Singh v State of HP, (1995) 1 Cr LJ 124 Jugal Gope v State of Bihar, AIR 1981 SC 612 Kalua v. State of UP, AIR 1958 SC 180 Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883

18.

Krishna Pillai v State of Kerala, AIR 1981 SC 1237

19.

Laxman v. State of Maharashtra, AIR 1974 SC 1803

20. 21. 22.

Leela Ram v. State of Haryana AIR 1999 SC 3717 Madhusundan Das v Narayanbai, AIR 1983 SC 114 Md. Badaruddin v. State of Assam, 1989 Cr LJ 1876 (Gau)

MEMORANDUM ON BEHALF OF THE PROSECUTION

v SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 INDEX OF AUTHORITIES

23.

Md. Idrish v. State, 2004 Cr LJ 1724 (Raj)

24.

MO Shamshudin v State of Kerala, (1995)3 SCC 351

25.

Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175

26.

Nath Singh v State of UP, 1980 SCC (Cr) 968

27.

Niranjan Das and Ors. v. Giridhari Das and Anr., 68 (1989) CLT 746

28.

Rahimal v. State of Uttar Pradesh,1992 Cri LJ 3819 (All)

29.

Rameshwar v State of Rajasthan, AIR 1952 SC 54

30.

Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461

31.

Sajjan Kumar v. State of MP, 1999Cri LJ 4561

32. 33. 34.

Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC) Shajahan v State of Kerala, (2007) 12 SCC 96 Shyam Behari v. State of Uttar Pradesh, AIR 1957 S.C 132

35.

Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142

36.

State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012

37.

State of Haryana v Mewa Singh , AIR 1997 SC 1407

38.

State of Himachal Pradesh v. Lekh Raj and Anr., 1999 (9) ST 155

39.

State of Kerala v Thomas, (1986) 2 SCC 411

40.

State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)

41.

State of Maharashtra v Meyer Hans George, AIR 1965 SC 722

42.

State of Maharashtra v Suresh, 2000 (1) SCC 471

43.

State of Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609

44.

State of Punjab v Sucha Singh, AIR 2003 SC 1471

45.

State of Rajasthan v. Kalki and Anr., 1981 Cri LJ 1012

46.

State of U.P. v. M.K. Anthony, 1985 Cri LJ 493

MEMORANDUM ON BEHALF OF THE PROSECUTION

vi SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 INDEX OF AUTHORITIES

47.

State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840

48.

State v Dinakar Bandu (1969) 72 Bom LR 905

49.

Sukhwant Singh v. State of Punjab, AIR 1995 SC 1601

50.

Tota Singh v State of Punjab, AIR 1987 SC 1083

51.

Ugar Ahir v State of Bihar, AIR 1965 SC 277

BOOKS: 1.

Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

2.

Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal Jurisprudence, (2nd Ed 1989)

3.

Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4.

Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5.

Harris, Criminal Law, (22nd Ed. 2000)

6.

Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

7.

I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

8.

I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

9.

II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

10. II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007) 11. II, Princep’s Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005) 12. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008) 13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003) 14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011) 15. Lal, Batuk, The Law of Evidence, (18th Ed. 2010) 16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005) 17. Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010)

MEMORANDUM ON BEHALF OF THE PROSECUTION

vii SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 INDEX OF AUTHORITIES

18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology, (6th Ed. 2002) 19. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011) 20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006) 21. Sarkar, Law of Evidence, (13th Ed,1990) 22. Saxena & Gaur, Arms and Explosives, (10th Ed. 2012) 23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003) 24. Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996) 25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)

LEXICONS: 1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

WEBSITES: 1. http://www.findlaw.com 2. http://www.judis.nic.in 3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx 4. http://www.scconline.com

STATUTES: 1. The Code of Criminal Procedure, 1973 (Act 2 of 1973) 2. The Indian Evidence Act, 1872 (Act 18 of 1872) 3. The Indian Penal Code, 1860 (Act 45 of 1860)

MEMORANDUM ON BEHALF OF THE PROSECUTION

viii

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section 209 of the Code of Criminal Procedure, 1973.

Section 177: ‘177. Ordinary place of inquiry and trialEvery offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.’

Read with Section 209: ‘ 209. Commitment of case to Court of Session when offence is triable exclusively by itWhen in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall(a) commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

MEMORANDUM ON BEHALF OF THE PROSECUTION

ix SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 STATEMENT OF FACTS

STATEMENT OF FACTS 1. On the night of 31 st December, 2012, the Montecito Hotel & Casino owned by Ms Shonli Gujral, on the ship ‘Aurora’ located on river Mandovi , hosted a high stakes poker game on the Octavious floor. The chain of events that transpired that night are: i.

Post 11p.m. of that night, the Octavious vault had been breached by four men dressed in fine suits, though while making their exit the alarm got triggered.

ii.

Subsequently the four men ran towards the deck to make an exit, and threw eight waterproof bags overboard into a motorboat. Two of the men escaped by rappelling into a motorboat, while the other two awaited their turn to rappel down.

iii.

Just as the remaining two were about to make their escape, Mr. Michael Barbosa (Chief Security Officer) ordered them to stop.

iv.

Thereafter Mr. Barbosa fired a warning shot in the air, however when they still did not stop, he fired at one man’s knee and subdued him, they disobeyed the order and one of them took a guest as hostage in order to escape; subsequently the accused, Maj. (Retd.) J.S. Rana (Head of Operations, Security) had shot dead the other man.

v.

The police reached the scene of crime at 12.15 a.m and Ms Shonali registered an F.I.R against the accused.

2. Bhaskar Sanyal, on 4th February, 2013 confessed to the crimes under Sec. 164 of the Code of Criminal Procedure, and further provided incriminating evidence against the accused. The final report of the police was made on the complicity of the accused on the 14 th March, 2013. 3. On 16th May, 2013, an interim order was passed by the Sessions Court stating that the charges under Sec.396/302 have been read out to the accused and that the chargesheet has been served. The accused pleaded not guilty and claimed trial. The matter is listed for final hearing before the Session’s Court, Panaji on the 29th May 2013.

MEMORANDUM ON BEHALF OF THE PROSECUTION

x SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 STATEMENT OF CHARGES

STATEMENT OF CHARGES CHARGE 1 Maj. (Retd) J. S. Rana has been charged under Section 396 read with Section 302 the Indian Penal Code, 1860 for the crime of Dacoity with Murder.

MEMORANDUM ON BEHALF OF THE PROSECUTION

xi SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013 SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS ISSUE I WHETHER THE ACCUSED IS GUILTY OF DACOITY? It is humbly submitted before this Hon’ble Court that the accused, Maj. (Retd) J. S. Rana is guilty of committing dacoity as he had committed the crime with 5 other members with full intent of robbing the Octavious Vault of the 12 Crore Rupees that was being held in it on the 1st of January 2013. The accused had access to all of the necessary instruments to carry out a successful robbery as he was the Head of Operations (Security) aboard the Montecito. And while committing said crime the accused had committed murder, thus fulfilling all of the elements of section 396 of the IPC.

ISSUE II WHETHER THE ACCUSED IS GUILTY OF MURDER? It is humbly submitted before this Hon’ble Court that the accused is guilty of murder as he had committed an act of cold blooded murder on board the Montecito with many witnesses to the actus reus. The accused had the requisite mens rea to commit said crime, and he even had a motive to carry out said act. The shot was fired point blank in the centre of the deceased’s head, thus showing it was indeed an execution and not an act of self defence or an accident. Hence it is proven beyond a reasonable doubt that the crime of Murder was indeed committed by the accused in the case at hand.

MEMORANDUM ON BEHALF OF THE PROSECUTION

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1

ARGUMENTS ADVANCED

ARGUMENTS ADVANCED ISSUE-I WHETHER MAJ RANA IS GUILTY OF DACOITY? It is humbly contended that Maj. (Retd) J.S. Rana (hereinafter referred to as the ‘accused’) is guilty of unlawful offences under Sec. 396/302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’). It is to be noted that the essential elements of Sec. 396 are as follows:  The dacoity must be the joint act of the persons concerned;  Murder must have been committed in the course of the commission of the dacoity1. The pre-requisite of a dacoity will be dealt with in the present issue (Issue I), while the charge of murder will be proved in the subsequent issue (Issue II). Dacoity2 is robbery3 committe d by five or more persons , with the abettors who are present and aiding when the crime is committed, to be counted in the number. The ingredients of dacoity are thus as follows:  The accused committed or attempted to commit robbery[1.1]  Persons committing or attempting to commit robbery and present and aiding must not be less than five; and [1.2]  All such persons should act conjointly4.[1.3] Furthermore, the Prosecution humbly contends that the confessional statement of Bhaskar Sanyal is corroborated in all material aspects [1.4] notwithstanding any discrepancies in witness statements and the confession [1.5].

1

Shyam Behari v. State of Uttar Pradesh, AIR 1957 S.C.; Rahimal v. State of Uttar Pradesh,1992 CriLJ 3819

(All) 2

Sec 391, IPC

3

Sec 390, IPC

4

State of Gujarat v. Poladi Rajak, R/CR.MA/9728/2012

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

2

ARGUMENTS ADVANCED

1.1 THE ACCUSED COMMITTED OR ATTEMPTED TO COMMIT ROBBERY Sec 118, The Indian Evidence Act, 1872 (hereinafter referred to as ‘Evidence Act’) mandates that all persons shall be competant witnesses, unless they are prevented from understanding or answering the questions put to them by virtue of tender years, extreme old age, disease, lunacy or any other cause of same kind. Given that none of the witnesses in the instant matter fall within the exceptions enumerated under Sec 118, it is logical to conclude that all of them are competant witnesses. Therefore, it is the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff.5 The Prosecution concedes that Bhaskar Sanyal (PW 2) is an interested witness i.e. a person who wants to see the accused convicted because of his own animus or otherwise.6 However, it is well established that because a witness is an interested witness, his evidence cannot be totally disregarded in toto.7 Eye-witnesses, being friends of the victim, cannot be discredited for that reason alone.8 The confession of PW 2 makes it evident that the accused was an active participant in planning the entire dacoity and also aided in their entrance in the Octavious floor, by securing relevant information9.This is further corroborated by statements from Shonali Gujral10 (PW 1) and Michael Barbossa11 (DW 4) who state that the accused had the final call on who could

5

Ugar Ahir v State of Bihar, AIR 1965 SC 277

6

Tota Singh v State of Punjab, AIR 1987 SC 1083

7

Madhusundan Das v Narayanbai, AIR 1983 SC 114, Krishna Pillai v State of Kerala, AIR 1981 SC 1237

8

Asha v State of Rajasthan, AIR 1997 SC 2828

9

Annexure 8, Case Details, P. 17

10

Annexure 7, Case Details, p. 14, para 1

11

Ibid, para 2

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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2013

3

ARGUMENTS ADVANCED

be admitted to the Octavious floor of the Aurora. Moreover, the accused was entrusted with enforcing security within the Octavious floor.

12

Therefore, the accused was privy to the

details of the security arrangement security in place, which included the rotation of guards. 13 It is also to be noted that in the process of emptying the vault, the dacoits did not face any resistance from the guards, who claimed that some ‘guests’ had lost their way. 14 A conviction is possible on circumstantial evidence if it forms a chain of evidence so complete as not to leave any reasonable doubt for a conclusion consistent with the innocence of the accused15 If a false answer is offered by the accused when his attention is drawn to the circumstance , a false answer would act as the missing link in completing the chain of evidence.16Therefore, it is submitted before this Hon’ble Court that the circumstantial evidence makes it clear that the accused had hatched the plan and abetted the others in commission of dacoity. 1.2 PERSONS PRESENT AND AIDING MUST NOT BE LESS THAN FIVE Excluding the accused, it is seen that there were four other participants to the crime on board the Aurora : i.

Security on th...