________________________________________________________________________ MEMORANDUM FOR THE DEFENCE
SURANA & SURANA NATIONAL TRIAL ADVOCACY
MOOT COURT COMPETITION, 2014
BEFORE THE COURT OF SESSIONS
AT BAMBI, THANE
S.C. NO. 123 OF 2014
STATE OF BAMBI PROSECUTION
V.
MR. PANNA BOY,
MR. SABA KARIM & MR. JAIMIL DEFENCE
MEMORANDUM ON BEHALF OF THE DEFENCE
COUNSEL FOR THE DEFENCE
ii SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
________________________________________________________________________ MEMORANDUM FOR THE DEFENCE
TABLE OF CONTENTS
LIST OF ABBREVIATIONS iv
INDEX OF AUTHORITIES v
I. TABLE OF CASES v
II. STATUTES & RULES vi
III. COMMENTARIES & LEXICONS vi
IV. WEBSITES vii
STATEMENT OF JURISDICTION 1
STATEMENT OF FACTS 2
STATEMENT OF CHARGES 3
ISSUES RAISED 4
SUMMARY OF ARGUMENTS 5
WRITTEN PLEADINGS 7
I. WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE
JOINTLY LIABLE FOR COMMITTING CRIMINAL CONSPIRACY 7
[1.1] NO AGREEMENT BETWEEN DW-1, DW-2 & DW-3 8
[1.2] NO ILLEGAL (AND/OR) CRIMINAL ACT DONE 8
[1.3] ABSENCE OF COMMON INTENTION 9
[1.4] UNRELIABLE CIRCUMSTANTIAL EVIDENCE 10
II. WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE
CONDITION OF REMISSION OF PUNISHMENT 13
[2.1] DW-1 WAS NOT GRANTED REMISSION OF PUNISHMENT 13
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[2.2] THERE HAS BEEN NO VIOLATION OF CONDITION OF REMISSION 15
III. WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING
MS. NAIKA IN FEAR OF INJURY TO COMMIT EXTORTION 15
[3.1] DW-2 AND DW-3 DID NOT MAKE CALLS THREATENING PW-4 16
[3.2] UNRELIABLE CIRCUMSTANTIAL EVIDENCE 17
IV. WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE
GUILTY OF PRINTING OR ENGRAVING DEFAMATORY MATTER
& SELLING THE SAME 19
[4.1] NO IMPUTATION WAS MADE CONCERNING PW-4 21
[4.2] NO IMPUTATION BY WAY OF WORDS, SIGNS OR
REPRESENTATIONS 21
[4.3] NO INTENTION BEHIND THE ALLEGED IMPUTATION 21
PRAYER FOR RELIEF 23
iv SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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LIST OF ABBREVIATIONS
¶ Paragraph Number
& And
AIR All India Reporter
Anr. Another
BomCR Bombay Case Reporter
BPC Barata Penal Code, 1860
CriLJ Criminal Law Journal
Crl Criminal
Cr.P.C. Code of Criminal Procedure, 1973
DW Defence Witness
Ed. Edition
Etc. Etcetera
GLH Gujarat Law Herald
Guj Gujarat High Court
No. Number
Ors. Others
p. Page Number
PW Prosecution Witness
s. Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
S. No. Serial Number
ss. Sections
U/s. Under Section
U/ss. Under Sections
v. Versus
Vol. Volume
Vols. Volumes
v SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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INDEX OF AUTHORITIES
I. TABLE OF CASES
S. No. Case Title Citation Page No.
1. Bhaba Nandan Barma v. State of Assam AIR 1977 SC 2252 12
2. Bimbadhar Pradhan v. State of Orissa AIR 1956 SC 469 9
3. Chattar Singh v. State of Haryana AIR 2009 SC 2819 17
4. Dadu @ Tulsidas Manpher Patel v. State Of Maharashtra 2001 (5) BomCR 264 14
5. Emperor v. Alex Pimento (1920) AIR Bombay 339 21
6. Girija Shankar v. State of U.P. AIR 2004 SC 1808 8
7. Govinda Reddy v. State of Mysore AIR 1960 SC 29 11
8. Govindbhai Mansing Dabhi v. State of Gujarat 2005 GLH (169) 25 13
9. Idris Bhai Daudhbhai v. State of Gujarat (2005) 3 SCC 277 12
10. Krishna Govind Patil v. State of Maharashtra AIR 1963 SC 1413 12
11. K.R. Purushothaman v. State of Kerala AIR 2006 SC 35 10
12. M.C.Verghese v. T.J.Punnam AIR 1970 SC 1876 20
13. Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144 10
14. Mohd Amin v. CBI (2008) 15 SCC 49 10
15. Narottamdas v. Patel Maganbhai Revabhai 1984 CriLJ 1790 (Guj) 19
16. Pandurang v. State of Hyderabad AIR 1955 SC 216 9
17. Pavitar Singh v. State Of Punjab & Anr. 1988 CriLJ 1052 13
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18. Prithviraj v. State Of Rajasthan 2004 CriLJ 2190 17
19. Radhakrishnan v. State 1999-1-LW(Crl) 381 14
20. Ravule Hariprasada Rao v. State [1951] SCR 322 21
21. Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287 9
22. S.L. Goswami v. State of M.P (1972) 3 SCC 22 8
23. State of Maharashtra v. Som Nath Thapa AIR 1996 SC 1744 9
24. Sudama Pandey v. State of Bihar AIR 2002 SC 293 17
25. Vijayee Singh & Ors. v. State Of Uttar Pradesh AIR 1990 SC 1459 18
II. STATUTES & RULES
1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872
4. Arms Act, 1959
5. Model Prison Manual for the Superintendence and Management of Prisons in India, 2003
III. COMMENTARIES & LEXICONS
1. Ratanlal & Dhirajlal: Law of Crimes, Vols. I & II (24th Ed. 1997)
2. P.S.A. Pillai: Law of Crimes, K I Vibhute (12th Ed. 2014)
3. B.M. Gandhi: Indian Penal Code (3rd Ed. 2012)
4. Ronald Bacigal & Mary Tate: Criminal Law and Procedure: An Overview (4th Ed. 2009)
vii SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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5. Batuklal: Commentary on The Indian Penal Code, 1860, Vol. II (1st Ed., Reprint 2009)
6. Krishna Deo Gaur: Textbook on The Indian Penal Code, (4th Ed., Reprint 2011)
7. P.G. Osborn: Concise Law Dictionary, (1927)
8. Glanville Williams: Textbook of Criminal Law: The General Part, (2nd Ed. 1983, Reprint
1999)
9. Henry Campbell Black: Black’s Law Dictionary, (6th Ed.)
IV. WEBSITES
1. www.scconline.in
2. www.manupatra.com
3. www.indiankanoon.org
4. www.cdjlawjournal.com
5. www.westlawindia.com
1 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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STATEMENT OF JURISDICTION
The Defence submits to the jurisdiction of this Hon’ble Court U/s. 177 read with s. 209 of the
Code of Criminal Procedure, 1973.
Section 177. Ordinary place of inquiry and trial.- “Every offence shall ordinarily be inquired
into and tried by a Court within whose local jurisdiction it was committed”.
Read with
Section 209. Commitment of case to Court of Session when offence is triable exclusively by
it.- “When 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, after complying with the provisions of Section 207 or Section 208, as the case
may be, the case to the Court of Session, and subject to the provisions of this Code
relating to bail, remand the Accused to custody until such commitment has been made;
(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”.
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STATEMENT OF FACTS
1. ‘Hit Factory’ is a movie that was left incomplete due to Mr. Panna Boy’s (a famous actor)
conviction in March, 2013 for the illegal possession of arms. As a result, Ms. Naika, the lead
actress of the movie refused to continue acting in the movie. Mr. Saba, the producer and Mr.
Jaimil, the director, approached her at her personal residence, to no effect. On the 3rd of
February, 2014, Panna was granted parole for the second time as his wife was being treated
at Star Hospital. The chain of events that transpired next were as follows:
i. On the 6th of February, 2014, Jaimil complained of chest pain and uneasiness and was
admitted in Star Hospital. Simultaneously, a shoot for a new project was ongoing at
the hospital. Panna was seen entering a room which was readied for a shoot. Popular
actresses such as Smt. Mashaal and Ms. Poonam were present in the room.
ii. On the 8th of February, Panna was seen in Central Mall along with his daughter. A
crew of movie stars along with Ms. Poonam and Mr. Jaimil were also sighted.
iii. On the 14th of February, there were advertisements of the movie ‘Hit Factory’ with
the subtext ‘releasing shortly’ in popular newspapers and magazines.
iv. On seeing the ads, Ms. Naika filed a suit for permanent injunction of the movie in the
High Court of Bambi. That evening, she received two anonymous calls on her
personal mobile threatening her of dire consequences unless she withdrew the suit.
2. Ms. Naika filed a criminal complaint on the 17th of February, 2014 against Mr. Panna, Mr.
Saba & Mr. Jaimil with multiple allegations. On completion of the investigation, the Magistrate
Court took cognisance of the report submitted by the Investigating Officer and committed the
case to the Court of Sessions.
3 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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STATEMENT OF CHARGES
CHARGE [I]
MR. PANNA BOY HAS BEEN CHARGED U/S. 120B READ WITH SS. 34, 227, 501 & 502 OF THE
BARATA PENAL CODE, 1860.
CHARGE [II]
MR. SABA KARIM HAS BEEN CHARGED U/S. 120B READ WITH SS. 34, 385, 501 & 502 OF THE
BARATA PENAL CODE, 1860.
CHARGE [III]
MR. JAIMIL HAS BEEN CHARGED U/S. 120B READ WITH SS. 34, 385, 501 & 502 OF THE BARATA
PENAL CODE, 1860.
4 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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ISSUES RAISED
ISSUE [I]
WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE JOINTLY LIABLE FOR
COMMITTING CRIMINAL CONSPIRACY U/S. 120B READ WITH S. 34 OF THE BARATA PENAL
CODE, 1860.
ISSUE [II]
WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE CONDITION OF REMISSION OF
PUNISHMENT U/S. 227 OF THE BARATA PENAL CODE, 1860.
ISSUE [III]
WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING MS. NAIKA IN FEAR OF
INJURY TO COMMIT EXTORTION U/S. 385 OF THE BARATA PENAL CODE, 1860.
ISSUE [IV]
WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PRINTING OR
ENGRAVING DEFAMATORY MATTER & SELLING THE SAME U/SS. 501 & 502 OF THE BARATA
PENAL CODE, 1860.
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SUMMARY OF ARGUMENTS
______________________________________________________________________________
[I] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE JOINTLY LIABLE FOR
COMMITTING CRIMINAL CONSPIRACY.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that Mr. Panna Boy, Mr. Saba Karim & Mr.
Jaimil cannot be held jointly liable as none of the constituent elements of the alleged offence are
provable. The Prosecution has heavily relied on circumstantial evidence which amounts to bare
conjecture. Neither mens rea nor the actus reus can be made out from the actions of the Accused.
The charge is thus, not maintainable.
______________________________________________________________________________
[II] WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE CONDITION OF REMISSION OF
PUNISHMENT.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the Accused Mr. Panna Boy has not
violated the condition of remission of punishment as he was not granted remission on any
condition. In the absence of any remission of punishment, the question of violation of that
remission does not arise. Therefore, the said charge cannot stand against the Accused.
6 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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______________________________________________________________________________
[III] WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING MS. NAIKA IN FEAR
OF INJURY TO COMMIT EXTORTION.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the Accused Mr. Saba Karim & Mr. Jaimil
are not guilty of putting Ms. Naika in fear of injury in order to commit extortion. The Accused
have been wrongfully charged based on two anonymous threatening phone calls received by Ms.
Naika. The charge has been framed entirely on the basis of circumstantial evidence and is
therefore inadmissible. Such a charge cannot be maintained.
______________________________________________________________________________
[IV] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PRINTING
OR ENGRAVING DEFAMATORY MATTER & SELLING THE SAME.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the Accused in the present instance cannot
be held guilty for Printing or Engraving defamatory matter or for Selling printed or engraved
defamatory matter. The alleged imputation was never published by the Accused as no
demarcation could be found in the advertisement published in the newspapers. Moreover, the
Accused has no intention to harm the reputation of the complainant and her family. Thus the
charge is not maintainable.
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WRITTEN PLEADINGS
______________________________________________________________________________
[I] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE JOINTLY LIABLE OF
COMMITTING CRIMINAL CONSPIRACY.
______________________________________________________________________________
It is humbly contended before this Hon’ble Court that Mr. Panna Boy (hereinafter referred to as
‘DW-11’), Mr. Saba Karim (hereinafter referred to as ‘DW-32’), and Mr. Jaimil (hereinafter
referred to as ‘DW-23’) are not guilty of the offence U/s. 120B read with s. 34 of the Barata
Penal Code, 1860 (hereinafter referred to as the ‘BPC’). In the present instance, it has been
wrongfully alleged that DW-1, DW-2 & DW-3 have committed Criminal Conspiracy.
By virtue of ss. 120A4 & 345, the essentials required to be proved to hold the Accused jointly
liable for the charge of Criminal Conspiracy are that:
i. There should be two or more persons; [1.1]
ii. There should be an agreement between themselves; [1.1]
iii. The agreement must be to do or cause to be done:
an illegal act (or) a legal act by illegal means; [1.1.1]
iv. A criminal act must be done by the persons; [1.2]
v. The criminal act must be to further the common intention of all; and [1.3]
1 Moot Proposition, List of Witnesses, p. 4
2 Ibid
3 Ibid
4 Section 120A. Definition of criminal conspiracy., Barata Penal Code, 1860
5 Section 34. Acts done by several persons in furtherance of common intention., Barata Penal Code, 1860
8 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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vi. There must be participation of all persons in furthering the common intention.
The onus of proving all the ingredients of an offence is always upon the Prosecution and at
no stage does it shift to the Accused. Even in cases where the defence of the Accused does not
appear to be credible or is palpably false that burden does not become any less6. Therefore, to
establish a charge U/s. 120B read with s. 34, the Prosecution must prove7 all of the above beyond
a reasonable doubt.
It is humbly contended that there is insufficient evidence to prove that the Accused have
committed Criminal Conspiracy. The Prosecution has heavily relied on futile circumstantial
evidence [1.4] to show participation of the Accused in a criminal act [1.4] in the present case.
[1.1] NO AGREEMENT BETWEEN DW-1, DW-2 & DW-3
It requires prior concert or pre-arranged design to commit a criminal act by several persons8.
There is no evidence anywhere to prove that there was an express or implied agreement between
DW-1, DW-2 & DW-3.
1.1.1: ABSENCE OF AGREEMENT FOR THE PURPOSE OF DOING AN ILLEGAL ACT:
Having said that there was no agreement between the Accused in the first instance, it is
irrelevant to show that the agreement was for the purpose of committing an Illegal Act.
[1.2] NO ILLEGAL (AND/OR) CRIMINAL ACT DONE
1.2.1: NO ILLEGAL ACT DONE:
By virtue of s. 439 of the BPC, the term ‘illegal’ act10 encompasses everything: 6 S.L. Goswami v. State of M.P., (1972) 3 SCC 22
7 ss. 101 & 102: Burden of Proof, Barata Evidence Act, 1872
8 Girija Shankar v. State of U.P., AIR 2004 SC 1808
9 Section 43. “Illegal”, “Legally bound to do”., Barata Penal Code, 1860
9 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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a) which is an offence11
b) which is prohibited by law, and
c) which furnishes a ground for civil action.
In the present context, illegal act would refer to the offences alleged by the Prosecution. In
the case of conspiracy, the mere agreement to do an illegal act suffices to prove the charge of
conspiracy. It is not imperative that an overt act must have been committed in furtherance of the
common design12.
To establish the charge of conspiracy, knowledge about the involvement or indulgence in
either an illegal act or a legal act by illegal means is necessary13.
1.2.2: NO CRIMINAL ACT DONE:
Similarly, there is no evidence to show the commission of a Criminal Act in the present case.
The essence of Joint Liability is that the person must be physically present at the actual
commission of the crime14, which is absent in the present case.
[1.3] ABSENCE OF COMMON INTENTION
The general principle is that common intention as defined in s. 34 implies a pre-arranged plan
and to convict an Accused, it should be proved that the criminal act was done in concert pursuant
10 ‘Act’ denotes a single as well as a series of acts (vide s. 33, Barata Penal Code, 1860)
11 Section 40. “Offence”., Barata Penal Code, 1860
12 Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469
13 State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744
14 Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287
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to the pre-arranged plan15. The act must have been done in furtherance of common intention of
all. Accordingly, there must have been a prior meeting of minds16.
DW-3 had borrowed heavily from various sources for the movie ‘Hit Factory’. Though
he was under pressure to complete the film, he did not commit any offence in the course of its
completion. As soon as DW-2 & DW-3 understood that Ms. Naika (hereinafter referred to as
‘PW-417’), the lead actress, would not co-operate in the completion of the movie, they decided to
complete it using techniques of super-imposition18 for which shooting was not required.
Furthermore, the Accused had no knowledge of the main object and purpose of the
alleged conspiracy, which is a necessary requisite of criminal conspiracy19.
[1.4] UNRELIABLE CIRCUMSTANTIAL EVIDENCE
While appreciating the evidence of the conspiracy, it is however, incumbent on a Court to keep
in mind the well-known rule governing circumstantial evidence, namely, each and every
incriminating circumstance must be clearly established by reliable evidence and the
circumstances proved must form a chain of events from which the only irresistible conclusion
about the guilt of the Accused can be safely drawn, and no other hypothesis against the guilt is
15 P.S.A. Pillai: Criminal Law, K I Vibhute (12th Ed. 2014)
16 Pandurang v. State of Hyderabad, AIR 1955 SC 216
17 Moot Proposition, List of Witnesses, p. 4
18 Moot Proposition, Annexure-3, Report of PW-2, p. 11, ¶ 9
19 Mohd Amin v. CBI, (2008) 15 SCC 49
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possible20. When attempting to convict on circumstantial evidence alone, the Court must be
firmly satisfied of the following three things21:
• The circumstances from which the inference of guilt is to be drawn, must have fully been
established by unimpeachable evidence beyond a shadow of doubt;
• The circumstances are of determinative tendency, unerringly pointing towards the guilt of
the Accused; and
• The circumstances taken collectively, are incapable of explanation on any reasonable
hypothesis except that of the guilt sought to be proved against him.
In the present matter, the Prosecution has failed to establish a clear chain of events. Though the
Report22 of Inspector Mr. Sundar, the Investigating Officer (hereinafter referred to as ‘PW-223’)
provides a detailed account of events, there are several inconsistencies in his Report, one of
which is that:
There has been only one instance where DW-2 & DW-3 visited PW-4 at her personal
residence24. However, the Report cites two instances of DW-2 & DW-3 having visited
PW-4 at her personal residence25. This is merely based on the conjectural Witness
Statement of PW-426.
20 K.R. Purushothaman v. State of Kerala, AIR 2006 SC 35
21 Mohan Lal v. State of Uttar Pradesh, AIR 1974 SC 1144
22 Moot Proposition, Annexure-3, p. 9
23 Moot Proposition, List of Witnesses, p. 4
24 Moot Proposition, p. 2, ¶ 7
25 Moot Proposition, Annexure-3, Report of PW-2, p. 11, ¶ 11
26 Moot Proposition, Annexure-1, Statement of Witnesses, p. 5, ¶ 3
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The circumstances should be of a conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved27. It is safe to infer that in the
present case, there is more than one possible hypothesis as to the explanation of the following:
• The daily presence of DW-1 in Star Hospital;
• The presence of DW-1 in Smt. Mashaal’s room (hereinafter referred to as ‘DW-528’);
• The purpose of DW-1’s presence in Central Mall on the 8th of February, 2014;
• The reason for which Mr. Jaimil was admitted in Star Hospital on the 6th of February;
• The manner in which the movie, ‘Hit Factory’ was completed;
• The ownership of publication of the defamatory posters in the newspapers & magazines
on the 14th of February, 2014; and
• Who made the threatening calls to PW-4 from a public phone booth.
There are a plethora of cases29 that point to the sufficiency of circumstantial evidence. An
inference based on circumstances must be premised on the incriminating facts established by the
Prosecution beyond reasonable doubt and not on bare conjecture, surmise or suspicion.
Criminal Conspiracy being an inchoate offence, the mere agreement to commit a crime is
punishable30. However, the application of Joint Liability only arises when the commission of
some act is proved by the Prosecution.
27 Govinda Reddy v. State of Mysore, AIR 1960 SC 29
28 Moot Proposition, List of Witnesses, p. 4
29 Bhaba Nandan Barma v. State of Assam, AIR 1977 SC 2252; Krishna Govind Patil v. State of Maharastra, AIR 1963 SC 1413; Idris Bhai Daudhbhai v. State of Gujarat, (2005) 3 SCC 277
30 Glanville Williams: Textbook of Criminal Law: The General Part, (2nd Ed. 1983, Reprint 1999), p. 420
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In light of the above, it is humbly submitted that in the instant matter, DW-1, DW-2 & DW-3
are not guilty of committing Criminal Conspiracy U/s. 120B read with s. 34 and cannot be held
jointly liable for the same. It is contended that the Report of PW-2 is coloured since the
conclusion of the Report is based on insufficient and inconclusive evidence.
______________________________________________________________________________
[II] WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE CONDITION OF REMISSION OF
PUNISHMENT.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that DW-1 is not guilty of the offence U/s. 227
of the BPC. He has been wrongfully alleged of violating the conditions of remission of
punishment.
The first and foremost thing to be established is whether DW-1 was granted remission of
punishment [2.1]. Only on proving the above, can the violation of the conditions of remission of
punishment be proved [2.2].
[2.1] DW-1 WAS NOT GRANTED REMISSION OF PUNISHMENT
Remission is defined as forgiveness or condonation of an offence or injury31. Remission is a
concession, which can be granted to prisoners by the State Government or by the Head of the
Prison Department and Superintendent of Prisons32. The appropriate Government may, at any
31 Henry Campbell Black: Black’s Law Dictionary, (6th Ed.); Pavitar Singh v. State Of Punjab & Anr., 1988 CriLJ 1052
32 Model Prison Manual for the Superintendence and Management of Prisons of India, 2003, p. 201
14 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014
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time, without conditions or upon any conditions which the person sentenced accepts, remit the
whole or any part of the punishment33.
From the above, it can be understood that the reduction of the sentence from 6 years to 5
years rigorous imprisonment by the Supreme Court cannot be considered as remission of
punishment. Such a reduction in the sentence was because DW-1 had already served one and half
years in prison.
• A period of furlough may be treated as remission of punishment34. However, there is no
evidence or official record to show that DW-1 has been released on furlough35. It is clear
from the facts and the Witness Statements36 that DW-1 has not been granted furlough
during his period of sentence.
• DW-1 was granted parole on the 3rd of February, 2014 due to his wife’s ill-health that
needed constant care37. However, parole does not come within the ambit of remission of
punishment. Parole is defined as the release of a prisoner temporarily for a special
purpose or completely before the expiry of a sentence, on the promise of good behaviour;
such a promise; a word of honour38. Parole is considered to be a part of imprisonment and
33 Section 432. Power to suspend or remit sentences., Code of Criminal Procedure, 1973
34 Govindbhai Mansing Dabhi v. State of Gujarat, 2005 GLH (169) 25
35 Moot Proposition, p. 1, ¶ 4
36 Moot Proposition, Annexure-1, Statement of Witnesses, p. 5
37 Moot Proposition, p. 2, ¶ 10
38 P.G. Osborn: Concise Law Dictionary, (1927)
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shall not be deduced as remission of punishment39. A 'parole' is not a 'suspension of
sentence40.
[2.2] THERE HAS BEEN NO VIOLATION OF CONDITION OF REMISSION
Condition for remission of punishment is said to be violated when whoever, having accepted any
conditional remission of punishment, knowingly violates any condition on which such remission
was granted41. It is humbly submitted that the above stated provision is not applicable in the
instant case. DW-1 has not been granted remission. In the absence of any remission of
punishment to the Accused, the case of violating the condition of remission of punishment does
not arise.
Therefore the charge cannot be sustained in the view of the fact that releasing an Accused
on parole will not come within the purview of s. 227. DW-1 has been wrongfully charged U/s.
227.
______________________________________________________________________________
[III] WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING MS. NAIKA IN FEAR
OF INJURY TO COMMIT EXTORTION.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that DW-2 and DW-3 are not guilty of putting
PW-4 in fear of injury in order to commit extortion U/s. 385 of the BPC. The Accused have been
wrongfully charged as there is no evidence to prove the aforementioned offence.
39 Radhakrishnan v. State, 1999-1-LW(Crl) 381
40 Dadu @ Tulsidas Manpher Patel v. State Of Maharashtra, 2001 (5) BomCR 264
41 Section 227. Violation of condition of remission of punishment., Barata Penal Code, 1860
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It is humbly contended that in order to bring home the charge U/s. 385, it is important to
see whether there was actus reus on the part of DW-2 and DW-3 [3.1] and whether a case based
entirely on circumstantial evidence is admissible [3.2].
[3.1] DW-2 AND DW-3 DID NOT MAKE CALLS THREATENING PW-4
Extortion42 occurs when a person intentionally puts any person in fear of any injury to that
person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any
person any property or valuable security, or anything signed or sealed which may be converted
into a valuable security. A person is said to have committed an offence U/s. 385 if he puts any
person in fear, or attempts to put any person in fear, of any injury, in order to commit extortion43.
It is humbly submitted to this Hon’ble Court that there is no actus reus on the part of
DW-2 and DW-3, one of the fundamentals in establishing a crime44. To constitute a crime there
must always be a result brought about by human conduct, a physical event, which the law
prohibits45. In the instant case the act of putting the complainant in fear of injury is absent.
• The said charge has been wrongfully framed, based on two anonymous threatening phone
calls46 that PW-4 received on her personal mobile. The calls were made to PW-4
threatening her to withdraw the permanent injunction suit filed by her against the release
of the movie ‘Hit Factory’ at the High Court of Bambi. These calls were attributed to the
42 Section 383. Extortion., Barata Penal Code, 1860
43 Section 385. Putting person in fear of injury in order to commit extortion., Barata Penal Code, 1860
44 Ranjeet Bhagat v. State Of Bihar
45 Krishna Deo Gaur: Textbook on The Indian Penal Code, (4th Ed., Reprint 2011), p. 37
46 Moot Proposition, Annexure-4, Transcript of Phone Calls, p. 13, ‘Exhibit 4’
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Accused merely based on the fact that the voice on the other end of the line was that of a
male47.
• The calls were made from a public phone. They could have been made by anyone.
Angered by the injunction suit, one of DW-1’s fans could have made the anonymous
calls.
In the light of these facts, it is humbly submitted that the Accused cannot be convicted on such
ill-founded and unjustified grounds.
It is important to note that the statement made by PW-2 in p. 1 of his Report is that, “Yes.
Threat of dire consequences issued to Ms. Naika, actress over phone for withdrawing an
injunction in High Court for release of the Movie ‘Hit Factory’ by producer Mr. Saba and
Director Mr. Jaimil” 48. However, in the conclusion of his Report, he claims that, “They could
have issued some kind of threat to Ms. Naika to this end”49.
It is evident from the submissions of PW-2, that there is a very clear presence of doubt in
the Report. He has not found any conclusive evidence to prove that the calls were made by DW-
2 and DW-3. The charges have been made on a mere assumption and to convict the Accused on
such baseless and unsubstantiated charges would amount to a gross miscarriage of justice.
[3.2] UNRELIABLE CIRCUMSTANTIAL EVIDENCE
A conviction on the basis of circumstantial evidence is permissible only when the circumstances
relied upon is proved beyond reasonable doubt50. Circumstantial evidence may be defined as any
47 Ibid
48 Moot Proposition, Annexure-3, Report of PW-2, p. 9
49 Moot Proposition, Annexure-3, Report of PW-2, p. 12
50 Chattar Singh v. State of Haryana, AIR 2009 SC 2819
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fact (sometimes called an 'evidentiary fact', 'factum probans' or 'fact relevant to the issue') from
the existence of which the judge or jury may infer the existence of a fact in issue (sometimes
called a 'principal fact' or 'factum probabndum')51. It a well-established principle that if a case is
dependent wholly on circumstantial evidence, the Court before recording a conviction on the bias
therefore must be firmly satisfied that52:
• The circumstances from which the conclusion of the guilt is to be drawn should be fully
established;
• The fact so established should be consistent not only with the hypothesis of the guilt of the
Accused, that is to say, they should not be explainable on any other hypothesis except
that the Accused is guilty;
• The circumstances should be of conclusive nature and tendency;
• They should exclude every possible hypothesis except the one to be proved;
• There must be a chain of evidence so complete as not to leave any reasonable ground for
conclusion inconsistent with the innocence of the Accused and must show that in all
human possibility, the act must have been done by the Accused.
The above conditions state that the circumstantial evidence must prove that the Accused is guilty
of the offence beyond reasonable doubt in order to convict him of the offence. But, in the instant
case, the Prosecution has failed to satisfy the above conditions.
• The circumstances fail to infallibly point towards DW-2 and DW-3, as the calls were
made from a public phone. Furthermore, there is no evidence to confirm that the Accused
51 Prithviraj v. State Of Rajasthan, 2004 CriLJ 2190
52 Sudama Pandey v. State of Bihar, AIR 2002 SC 293
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were present at the location of the public booth at 6:05 p.m. and 6:15 p.m. on the 16th of
February, 201453.
• When all the circumstances are taken collectively, more than one reasonable hypothesis
can be framed.
The Prosecution must prove its case beyond reasonable doubt is a rule of caution laid down
by the Courts of Law in respect of assessing the evidence in criminal cases54. Mere suspicion or
probability of guilt, however strong, will not authorise a conviction55.
In light of the aforementioned arguments, it is humbly submitted that the Prosecution, on
whom the burden of proof56 lies, has not been able to establish the guilt beyond reasonable
doubt. Therefore it is humbly submitted before this Hon’ble Court that the charge of causing fear
of injury in order to commit extortion cannot be maintained.
______________________________________________________________________________
[IV] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PRINTING
OR ENGRAVING DEFAMATORY MATTER & SELLING THE SAME.
______________________________________________________________________________
It is humbly contended before this Hon’ble Court that DW-1, DW-2 & DW-3 are not guilty of
the offences under ss. 501 & 502 of the BPC. In the matter at hand, it has been wrongfully
alleged that the Accused have committed Defamation.
53 Moot Proposition, Annexure-4, Transcript of Phone Calls, p. 13, ‘Exhibit 4’
54 Vijayee Singh & Ors. v. State Of Uttar Pradesh, AIR 1990 SC 1459
55 Ronald Bacigal & Mary Tate: Criminal Law and Procedure: An Overview (4th Ed. 2009)
56 Section 101. Burden of Proof., Barata Evidence Act, 1872
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The alleged offence U/s. 501 of the BPC has within itself certain key ingredients to be
proved for the offence to be made against an individual. The Accused must have:
i. Printed or engraved any matter; and
ii. Known or had good reasons to believe that such matter was defamatory of any person.
Similarly, the elements57 to be proved U/s. 502 to hold a person liable for the Sale of engraved or
printed defamatory matter are that:
i. There must be a sale or offer for sale of any printed or engraved substance; and
ii. There must be knowledge that such substance contains defamatory matter.
The alleged offences fall within the purview of offences U/s. 499 of the BPC which sketches the
constituents of defamation as follows:
i. Making or publishing58 any imputation concerning any person; [4.1]
ii. The imputation must have been made:
a. By words, either spoken or intended to be read; or
b. By signs; or
c. By visible representation; [4.2]
iii. Such imputation must have been made with the intention of harming or with knowledge
or having reason to believe that it will harm the reputation of the person concerning
whom it is made59.[4.3]
The Prosecution has to prove beyond reasonable doubt that all of the aforementioned
elements have been carried out by the Accused in order to convict them U/ss. 501 & 502.
57 Batuklal: Commentary on The Indian Penal Code, 1860, Vol. II (1st Ed., Reprint 2009)
58 Narottamdas v. Patel Maganbhai Revabhai, 1984 Cri LJ 1790 (Guj)
59 M.C.Verghese v. T.J.Punnam, AIR 1970 SC 1876
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[4.1] NO IMPUTATION WAS MADE CONCERNING PW-4
The advertisements found in the popular newspapers and magazines which was said to have
released on the 14th of February, 201460, nowhere mention that the production house of the film
‘Hit Factory’ had published it. However, the complainant PW-4 has falsely alleged that the
production house along with the lead actor of the movie have carried out the defamatory act. The
Accused in this matter has no intention of tarnishing the reputation of PW-4. It can be safely
inferred from the above that the Accused cannot be held responsible as the main element for
charging a person with a criminal offence, i.e. actus reus has not been proved in the present
matter.
[4.2] NO IMPUTATION BY WAY OF WORDS, SIGNS OR REPRESENTATIONS
The imputation was made to PW-4 by way of a visual representation as seen in Exhibit 561. In
order to prove the offence of defamation, it must be shown that the imputation or publication was
carried out by the Accused which is absent in the present matter. When the Defence has denied
that no such imputation or representation was made by the Accused against the complainant, it is
irrelevant to prove the means by which the imputation has been carried out.
[4.3] NO INTENTION BEHIND THE ALLEGED IMPUTATION
In order to charge a person with a criminal offence, the Prosecution has to prove beyond
reasonable doubt that the Accused have the intention to defame the complainant62. The intention
has to be proved by showing that there was mens rea63 in carrying out the alleged imputation.
60Moot Proposition, p. 3, ¶ 17
61 Ibid
62 Emperor v. Alex Pimento, (1920) AIR Bombay 339
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The facts of the case make it evident that PW-4 was one among the leading actresses and
top models for many of the famous production companies. It is to be noted that DW-1, the first
Accused in this matter, also belongs to a very illustrious family in the movie industry and that
between 2005-2009 four of his movies were blockbuster hits64. The Accused are fully aware of
the status the lead actress holds in the country of Barata and at no instance can their intention of
tarnishing the image of the complainant be proved.
In Ravule Hariprasada Rao v. State65, the Apex Court ruled that unless a statute either
clearly or by necessary implication rules out mens rea as a constituent element of crime, a person
should not be held guilty of an offence unless he had guilty mind at the time of commission of
the act. The Defence has at all times denied the fact that any action or even any intention to act in
order to defame the complainant has been done.
The Accused have not indulged in defamatory acts and hence the Accused cannot be held
liable U/ss. 501 & 502.
63 “There must be a mind at fault to constitute a crime and the act becomes criminal when the actor does it with a guilty mind” - P.S.A. Pillai: Criminal Law, K I Vibhute (10th Ed.), p. 58
64 Moot Proposition, p. 1, ¶ 5
65 [1951] SCR 322
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PRAYER FOR RELIEF
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, may this
Hon‘ble Court be pleased to adjudge and declare that:
1. Mr. Panna Boy, Mr. Saba Karim & Mr. Jaimil are not guilty of committing Criminal
Conspiracy.
1. Mr. Panna Boy is not guilty of Violating the Condition of Remission of Punishment.
2. Mr. Saba Karim & Mr. Jaimil are not guilty of Putting a person in Fear of Injury to
commit Extortion.
3. Mr. Panna Boy, Mr. Saba Karim & Mr. Jaimil are not guilty of Printing or Engraving
Defamatory Matter and of Sale of Printed or Engraved Defamatory Matter.
and pass any other order or orders it may deem fit, in the interest of Justice, Equity and Good
Conscience.
All of which is most humbly and respectfully submitted.
Place: Bambi, Thane S/d_____________
Date: 5th August, 2014 COUNSEL FOR THE DEFENCE