SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT &
JUDGMENT WRITING COMPETITION - 2015
BEFORE THE COURT OF SESSIONS
AT DURG, XANADU
S.C. NO. 111 OF 2015
STATE OF XANADU
(PROSECUTION) v.
MANOHAR(ACCUSED NO. 1) (DEFENCE)
RAHUL (ACCUSED NO. 2)
FOR OFFENCES CHARGED UNDER:
SEC.302, SEC.465 R/WSEC.34, SEC.120B, SEC.109 OF BHARAT PENAL CODE, 1860
& SEC.66, SEC.66C OF INFORMATION TECHNOLOGY ACT, 2000
UPON SUBMISSIONS TO THE HON’BLE SESSIONS JUDGE
MEMORIAL ON BEHALF OF THE DEFENCE – TAW 2
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 i
MEMORIAL ON BEHALF OF DEFENCE
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................... i
LIST OF ABBREVIATIONS .................................................................................................. iv
INDEX OF AUTHORITIES ................................................................................................... vi
[A] Indian Case Laws ......................................................................................................... vi
[B]Statutes ........................................................................................................................ viii
[C] Other Authorities ...................................................................................................... viii
[D]BooksCited .................................................................................................................. viii
[E] International Case ........................................................................................................ ix
[F]Article .............................................................................................................................. ix
[G] Online Article ............................................................................................................... ix
[H] Online Databases……………………………………………………………………...ix
STATEMENT OF JURISDICTION ........................................................................................ x
STATEMENT OF FACTS ...................................................................................................... xi
STATEMENT OF CHARGES ............................................................................................... xii
SUMMARY OF ARGUMENTS ........................................................................................... xiii
ARGUMENTS ADVANCED .................................................................................................... 1
CHARGE I, II & III: THE ACCUSED ARE GUILTY OF CONSPIRACY,
MURDER, AND FORGERY OF THE PRESCRIPTION ............................................... 1
[A] ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY ......................... 1
[A.1] No Agreement or understanding between the accused ........................................ 1
[B] THE ACCUSED IS NOT GUILTY OF COMMITING MURDER UNDER SEC.302
OF BHARAT PENAL CODE, 1860 ................................................................................. 3
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 ii
MEMORIAL ON BEHALF OF DEFENCE
[B.1] D.W.1 is not liable for committing murder u/s.302 of the Bharat Penal Code,
1860................................................................................................................................ 3
[B.1.A] The death of Karan was not due to the act of D.W.1 .................................... 3
i. Doctrine of causa causans is frustrated. ......................................................... 3
ii. Medical Reports are inconclusive as to cause of death. ................................. 4
[B.1.B] D.W.1 did not act with the intention of committing culpable homicide ....... 5
i. There was no intention on part of D.W.1 to cause death or such bodily
injury as is likely to cause death. ........................................................................... 5
[i.A] D.W.1 acted in good faith, and is thus exempted from conviction u/s.92
of the Bharat Penal Code, 1860 ......................................................................... 5
[i.B] Nevertheless, there was no intention to cause death of the deceased ........ 7
ii. D.W.1 did not act with the knowledge that his act would result in the death
of the deceased ....................................................................................................... 7
[C] THE ACCUSED ARE NOT LIABLE FOR FORGERY OF THE PRESCRIPTION.
............................................................................................................................................ 8
CHARGES IV & V: THE ACCUSED ARE GUILTY OF IDENTITY THEFT AND
HACKING ............................................................................................................................ 9
[A] D.W.2 IS NOT LIABLE FOR ABETTING IDENTITY THEFT U/S 109 OF IPC ... 9
[A.1] There is no abetment by Instigation ................................................................... 10
[A.2] There is no abetment by Conspiracy .................................................................. 10
[A.3] There is no abetment by Intentional Aiding ....................................................... 11
[B] THE ACCUSED HAD NO COMMON INTENTION TO COMMIT THE
OFFENSE OF IDENTITY THEFT ................................................................................. 12
[B.1] There was no common intention ........................................................................ 12
[B.2] Act committed was not in furtherance of the crime ........................................... 13
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 iii
MEMORIAL ON BEHALF OF DEFENCE
[C] WHETHER ACCUSED HAD COMMITTED FORGERY U/S 465 OF BPC, 1860
AND 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000 .............................. 13
[C.1] The accused did not prepare a false document or electronic record .................. 13
[C.2] There is no evidence of act of fraud or deceit was not conducted by the accused
...................................................................................................................................... 14
[C.2.A] No Concrete evidence was furnished ......................................................... 14
[C.2.B] The expert witness cannot be relied upon ................................................... 15
[C.3] No offense under Section 66C of Information Technology Act, 2005 committed.
...................................................................................................................................... 15
PRAYER FOR RELIEF ......................................................................................................... 16
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LIST OF ABBREVIATIONS
& And
A.I.R. All India Reporter
A.L.T. Andhra Law Times
All. Allahabad Reporter
B.B.C.J. Bihar Bar Council Journal
B.P.C. Bharat Penal Code
BOM.L.R. Bombay Law Reporter
C.B.I. Central Bureau of Investigation
C.P.J. Consumer Protection Judgements
Cal. Calcutta
Cr.P.C. Code of Criminal Procedure
Cri. Criminal
Cri.L.J. Criminal Law Journal
D.L.T. Delhi Law Times
Ed. Edition
Eds. Editor
G.L.R. Gujrat Law Reveiw
I.L.R. Indian Law Reports
J.C.C. Journal of Criminal Cases
Ker. Kerala
Lah. Lahore
Mad. Madras
Mys. Mysore
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 v
MEMORIAL ON BEHALF OF DEFENCE
p. Paragraph
P.C. Privy Council
pg. Page
Q.B. Queen’s Bench
r/w Read with
Sec. Section
S.C. Supreme Court
S.C.C. Supreme Court Cases
U.O.I. Union of India
U.P. Uttar Pradesh
U.S.B. Universal Serial Bus
u/s Under Section
v. versus
Vol. Volume
Vol. Volume
W.B. West Bengal
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 vi
MEMORIAL ON BEHALF OF DEFENCE
INDEX OF AUTHORITIES
[A] INDIAN CASE LAWS
1. Abdul Sayeed v. State of Madhya Pradesh, 2010 (10) SCC 259. .................................. 2
2. Amarsingh v. State, AIR 1951 Raj 42............................................................................ 7
3. Ambani K. v. State, 2005 (13) SCC 422. ..................................................................... 13
4. Anil Kumar v. State, 2014 (1) JCC 256. ........................................................................ 3
5. Arun Kumar v.State AIR 1962 Cal 504 ......................................................................... 4
6. Basappa Bhimappa Doddamani v. State, AIR 1961 Mys 21 (24)................................. 5
7. Biren Mandal v. State, 1996 CriLJ 3455. ................................................................... 11
8. CBI v. K. Naryan Rao, 2012 (3) SCC 1183 ................................................................. 11
9. Central National Bank Ltd . v . United Industrial Bank Ltd; AIR 1954 SC 181. ........ 15
10. Chacko Mathai v. State of Kerala, AIR 1964 Ker 222. ................................................. 4
11. Dani Singh v. State, 2004 (13) SCC 203. .................................................................... 13
12. Daniel Hailey Walcott v. State AIR 1968 Mad 349. ..................................................... 8
13. Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838. ........................................ 4, 15
14. Emperor v. BaiJiba, 1917 (19) Bom LR 823. ............................................................... 7
15. Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28. ........................................ 1
16. Gambhir v. State of Mahrashtra, AIR 1982 SC 1157. ................................................ 11
17. Gulab Singh v. State of Rajasthan, 1984 (2) Cri 869 .................................................. 13
18. H. Mansell Playdell of Simla v. Emperor, AIR 1926 Lah 313(315) ............................. 5
19. Haji Mohammad Ekramul Haq v. The State of West Bengal, AIR 1959 SC 488. ......... 4
20. Hira Lal Hari Lal Bhagwati v. C.B.I. 2003 SCC (Cri) 1121. ........................................ 1
21. Indian Bank v. Satyam Fibres (India) Pvt. Ltd. AIR 1996 SC 2592. ............................ 8
22. Jagrup Singh v. State Of Haryana, AIR 1981 SC 1552. ............................................... 7
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23. Joseph v. State 1995 CrLJ 502. ................................................................................... 10
24. Juggankhan v. State of Madhya Pradesh, 1965 AIR SC 831. ....................................... 7
25. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 ................................ 2
26. Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godble, AIR 1969 SC 128........ 6
27. Mahaboob Shah v. King Emperor, AIR 1945 PC 118. ............................................... 12
28. Mahmood v. State of UP, AIR 1976 SC 69. ................................................................ 11
29. Manick Chand v. State, 1970 ILR (1) 103. ............................................................ 10, 12
30. Mithu Singh v. State of Punjab,AIR 2001 SC 1929. ............................................... 9, 12
31. Mohar Singh v. DeenDayal Gupta, 1996 VAD (Delhi) 704. ...................................... 14
32. Nara Singh Challan v. Sate of Orrisa, 1997 CriLJ 2204............................................... 3
33. Noor Mohammad Yusuf v. State of Maharashtra, AIR 1971 SC 885. ........................ 10
34. P. Swaminathan v. Lakshmanan, 1992 Cr LJ 990. ........................................................ 6
35. People’s Patriotic Front v. Birla, 1984 CrLJ 545. ...................................................... 13
36. R . M . K . R . M . Somasundaram Chetty v. M . R . M . V . L . Subramanian Chetty,
AIR 1926 PC 136. ........................................................................................................ 15
37. Ram Swaroop v. State, AIR 2004 SC 2943. ................................................................ 10
38. RanjanaYaki v. State 2004 (12) SCC 521. ................................................................... 10
39. Ravirajan v. State of T.N., 1998 Cri L.J 3086. .......................................................... 2, 7
40. Re Rasiyat Ali @ Babu Mishra, 1881 ILR (7) 352. ..................................................... 14
41. Sanju v. State, 2002 (5) SCC 371. ............................................................................... 10
42. Shiv Prasad ChunniLal Jain v. State of Maharashtra, AIR 1965 SC 264. ................. 12
43. Sohan Raj v. State, 2008 (11) SCC 215. ........................................................................ 9
44. Sunny Kapoor v. State, 2006 (10) SCC 182. ............................................................... 13
45. Suresh v. State, 2001 (3) SCC 673. ............................................................................. 13
46. Sushil Ansal v. State, 2014 (6) SCC 173. ...................................................................... 3
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 viii
MEMORIAL ON BEHALF OF DEFENCE
47. The State of Maharashtra v. Rajkumar Kunda Swami, 2002 (104) Bom LR 567. ...... 15
48. Vijay Kumar v. State, 2014 (4) JCC 2494. .................................................................... 2
49. Vijaybai v. State of Maharashtra, 1995 Supp (2) SCC 734. ......................................... 3
[B] STATUTES
1. Schedule 3 of Section 1, Information Technology Act, 2000 (Act 21 of 2000). ......... 14
2. Section 10, Indian Evidence Act (Act 1 of 1872) .......................................................... 2
3. Section 3(2), Information Technology Act, 2000 (Act 21 of 2000). ........................... 14
4. Section 3, Indian Evidence Act, 1872 (Act 1 of 1872). ............................................... 14
5. Section 43, Information Technology Act, 2000 (Act 21 of 2000) ............................... 12
6. Section 52, Indian Penal Code, 1860 (Act 45 of 1860). ................................................ 6
7. Section 62, Indian Evidence Act, 1872 (Act 1 of 1872). ............................................. 14
8. Section 92, Indian Penal Code (Act 45 of 1860). .......................................................... 5
[C] OTHERAUTHORITIES
1. BLACK’S LAW DICTIONARY 248 (7th ed., 2004). ................................................... 3
[D]BOOKSCITED
1. B.R. Sharma , FORENSIC SCIENCE IN CRIMINAL INVESTIGATION AND
TRIAL (4th ed., 2012) .................................................................................................. 15
2. D. L. Kasper, HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 60 (19th ed.,
2015). ............................................................................................................................. 8
3. Huttmann, G.H., A PENAL CODE PREPARED BY THE INDIAN LAW
COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR
GENERAL OF INDIA IN COUNCIL 18 (1837) .......................................................... 5
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4. Manisha Karia & Tejas Karia, ELECTRONIC EVIDENCE, DISCLOSURE,
DISCOVERY AND ADMISSABILITY 315 (1st ed., 2007). ...................................... 14
5. Miles, S., DICTIONARY OF MEDICAL ETHICS 155-156 (2nd ed., 1981). ............... 6
6. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE 140 (33rd ed., 2011). .................. 5
7. Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY525 (6th ed., 2009).
.................................................................................................................................... 6, 8
[E] INTERNATIONAL CASE
1. Karen-Jutzi Johnson v. United States of America, 263 F.3d 753. ................................. 3
[F]ARTICLE
1. Malcolm Thorburn, Justifications, Powers, and Authority, 117 Yale Law Journal 1070
(2008). ............................................................................................................................ 6
[G] ONLINE ARTICLE
1. RBI REPORT ON INTERNET BANKING (PART 2 OF 2), 22/01/2000,
https://www.rbi.org.in/SCRIPTS/PublicationReportDetails.aspx?UrlPage=&ID=244
(last visited 15th August, 2015). ................................................................................... 12
[H] ONLINE DATABASES
1. Westlaw (www.westlawindia.com)
2. Manupatra (www.manupatra.com)
3. SCC Online (www.scconline.in)
4. JSTOR (www.jstor.org)
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 x
MEMORIAL ON BEHALF OF DEFENCE
STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Sec.177 r/w Sec.184 and
Sec.209 of the Code of Criminal Procedure, 1973.
Sec.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.’
Sec.184: Place of trial for offences triable together. ‘Where-
(a) the offences committed by any person are such that he may be charged
with and tried at one trial for, each such offence by virtue of the provisions of
section 219, section 220 or section 221, or
(b) the offence of offences committed by several persons are such that they
may be charged with and tried together by virtue of the provisions of section
223, the offences may be inquired into or tried by any Court competent to
inquire into or try any of the offences.’
r/w Sec.209:
Sec.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 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.’
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 xi
MEMORIAL ON BEHALF OF DEFENCE
STATEMENT OF FACTS
¶ 1. Manohar (hereinafter, ‘Mano’)became an orphan at the age of 10. Since then his uncle
Karan brought him up and financed his education including payment of his college
fees.
¶ 2. Karan’s health started deteriorating considerably. He suffered from various ailments,
including high blood pressure, obesity, diabetes and alcohol addiction.
¶ 3. Mano was always indebted to his uncle and for that matter he extremely respected his
uncle and took care of him when no one else did. Mano and Rahul were good friends.
¶ 4. Mano always had his uncle’s express authority to transfer money online from his bank
account whenever he required.
¶ 5. It is suspected that even on the morning of 3rd August Karan had drank alcohol, and
wanted to go for work on the same day despite his condition, both of which Mano
advised him against.
¶ 6. On the same day, Karan complained of chest pain. Mano sent his cousin Raghav to
fetch Angispan.Following the administration of Angispan, Karan recovered fully for
half an hour.
¶ 7. Subsequently, Karan developed fits and seizure, and collapsed. Mano and Raghav
tried to revive him but failed.
¶ 8. Following this, an F.I.R was filed by Devika and Mano and Rahul were later arrested
for the murder of Karan.
¶ 9. In the investigation under Section 173, the medicine Oxycontin, which is a painkiller,
and several half-empty bottles of alcohol were found.
¶ 10. On forwarding of the police report to the Magistrate’s Court, the court took
cognizance and committed the case to the Sessions Court of Durg.
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 xii
MEMORIAL ON BEHALF OF DEFENCE
STATEMENT OF CHARGES
CHARGES I, II & III
ACCUSED 1 AND ACCUSED 2 HAVE BEEN CHARGED WITH CRIMINAL CONSPIRACY, MURDER, AND
FORGERY WITH COMMON INTENTION UNDER SEC.120B, SEC.302, AND SEC.465 READ WITH SEC.34
OF THE BHARAT PENAL CODE, 1860
CHARGES IV & V
ACCUSED 1AND ACCUSED 2 HAVE BEEN CHARGED WITH HACKING AND IDENTITY THEFT UNDER
SECTION.66 AND SEC.66C OF THE INFORMATION TECHNOLOGY ACT, 2005 AND RAHUL GULATI HAS
BEEN CHARGED WITH ABETMENT UNDER SEC.109 OF THE BHARAT PENAL CODE, 1860
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 xiii
MEMORIAL ON BEHALF OF DEFENCE
SUMMARY OF ARGUMENTS
CHARGE I, II & III
WHETHER MANOHAR LAL AND RAHUL ARE GUILTY OF CONSPIRACY OF MURDER AND MURDER
The accused cannot be held liable under section120Bof the Bharat Penal Code as there was
no conspiracy since there existed no agreement between the parties.Additionally, the accused
cannot be held liable under Section 302 as there was no intention to cause death since the
accused was acting in good faith, and it cannot be proved beyond reasonable doubt that the
cause of death was not on natural account.Furthermore, the accused cannot be held liable
for forgery of the prescription, under Section 465 since there was no intention to cause
injury. Hence cannot be held liable for the acts of Conspiracy, Murder and forgery.
CHARGE IV & V:
WHETHER RAHUL AND MANOHAR ARE GUILTY OF IDENTITY THEFT
Rahul and Manohar are not guilty of offences under Section 34 r/w Section 465 of Indian
Penal Code and Section 66 and 66C of Information Technology Act, 2000 because there was
no intention to defraud and there was no preparation of a false record, or hacking.
Furthermore, Rahul would not be liable for instigating and abetting the crime alleged as
there is no abetment either by conspiracy, instigation or intentional aiding, and they cannot
be said to have common intention to defraud or to commit identity theft because no act was
committed in furtherance of the alleged crime.
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 1
MEMORIAL ON BEHALF OF DEFENCE
ARGUMENTS ADVANCED
CHARGE I, II & III:THE ACCUSED ARE GUILTY OF CONSPIRACY, MURDER,
AND FORGERY OF THE PRESCRIPTION
It is humbly contended before this Hon’ble Court that accused Manohar Lal and Rahul Gulati
(herein after individually to be referred to as ‘A1/ D.W.1’ and ‘A2/ D.W.2’ respectively) are
not guilty of the offences under Sec.302 and Sec.120B of the Bharat Penal Code, 1860
(hereinafter referred as the ‘BPC’). In the instant matter there was no conspiracy to commit
the murder of Mr. Karan, (herein after to be referred as ‘Deceased’) [A] D.W.1 is not liable
for murder[B], and for forgery of the prescription [C]
[A] ACCUSED ARE NOT LIABLE FOR CRIMINAL CONSPIRACY
Criminal conspiracy as defined under Sec.120A consists of an agreement between two or
more persons to commit an illegal act or a legal act by illegal means.1The elements of a
criminal conspiracy are: Agreement between two or more persons by whom the agreement is
effected, and a criminal object, which may be either the ultimate aim of the agreement, or
may constitute the means, or one of the means by which that aim is to be accomplished.2
[A.1] No Agreement or understanding between the accused
The provisions of Sec.120A and 120B IPC states that the offence of conspiracy lies not in
doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting
to do them, nor in inciting others to do them, but in the forming of the scheme or agreement
between the parties is essential.3
1Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28.; HALSBURY’S LAWS OF ENGLAND 44(Lord Hailshameds., 4thed 1987).
2Esher Singh v. State of Andhra Pradesh , 2004 (4) ALT 28.
3Hira Lal Hari Lal Bhagwativ. C.B.I. 2003 SCC (Cri) 1121.
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 2
MEMORIAL ON BEHALF OF DEFENCE
Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence
of the same thus relying on evidence of acts of various parties to infer that they were done in
reference to their common intention.4 For an offence under Sec.120B5 IPC the intention must
proceed to an agreement.6
In the present matter, there was no intention to commit Murder. None of the witness
statement or events of the case depicts that the accused had agreed over the intention to
commit the Murder of the deceased. It can also be corroborated from D.W.2’s statement “he
thought highly of his uncle and always had the utmost respect for him. He would never even
back talk or rebel against his uncle.” That there were good relation amongst the deceased and
D.W.1 and D.W.2 shared a good bond of friendship with D.W.1 and only knew the deceased
through D.W.1. Even at the time of occurrence of the event in the morning of the 4th August,
2014 D.W.1 looking the sufferings of the deceased had acted in good faith.
Thus it is also clear that at the time of occurrence of the event D.W.2 had no time to meet
D.W.1 or discuss the common design with D.W.1 thus showing no formation of the
agreement, and in the absence of common design the offence of Criminal Conspiracy cannot
take place. The only time questions as to agreement could be derived was when Rahul
mocked about how great it would be if Mano’s uncle would have been gone on a ‘Long
Journey’ but it is well established law that the remarks purported to have been made in
mockery cannot be said to reflect the intention/motive to commit a crime.7
4Section 10,Indian Evidence Act (Act 1 of 1872); Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883.
5Abdul Sayeed v. State of Madhya Pradesh, 2010(10) SCC 259.
6Vijay Kumar v. State, 2014 (4) JCC 2494.
7Ravirajanv. State of T.N., 1998 Cri L.J 3086.
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 3
MEMORIAL ON BEHALF OF DEFENCE
Thus it is clear from the materials available on record that there was no common design
between all these accused to do any illegal act. Therefore, it is humbly submitted that no
conspiracy on part of the accused can be proved beyond reasonable doubt.
[B] THE ACCUSED IS NOT GUILTY OF COMMITING MURDER UNDER SEC.302
OF BHARAT PENAL CODE, 1860
[B.1] D.W.1 is not liable for committing murder u/s.302 of the Bharat Penal Code, 1860
Murder as defined under Sec.300 of the Bharat Penal Code, is specie of culpable homicide,
which is given in Sec.299 of the Bharat Penal Code.8 Therefore, it is humbly contended that
the death of the deceased was not due to the act of D.W.1 [B.1.A] and that D.W.1 did not
have the intention to commit culpable homicide[B.1.B] and hence impliedly, they cannot be
convicted for murder.
[B.1.A]THE DEATH OF KARAN WAS NOT DUE TO THE ACT OF D.W.1
i. Doctrine of causa causans is frustrated.
It is humbly submitted before the court that situations where the concurrent contributory
causes exist which make it impossible to say that the act in question was a substantial cause,9
and where the connection between the act and the death is obscure,10 belie the principle of
causa causans.11 This doctrine states that for an act to be considered the cause of the death of
a victim it must be the effective cause of the death,12 and this is necessary to prove the guilt
of an accused for the offence of culpable homicide.13
8Nara Singh Challan v. Sate of Orrisa, 1997 CriLJ 2204.
9Karen-Jutzi Johnson v. United States of America, 263 F.3d 753.
10Vijaybaiv. State of Maharashtra, 1995 Supp (2) SCC 734.
11 BLACK’S LAW DICTIONARY 248 (7th ed., 2004).
12SushilAnsalv. State, 2014 (6) SCC 173.
13Anil Kumar v. State, 2014 (1) JCC 256.
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 4
MEMORIAL ON BEHALF OF DEFENCE
In the instant case, since there was Oxycontin found during the investigation,14it is plausible
to assume that the death of the deceased was due to overdose of the same, which in a liver-
cirrhotic patient is known to cause stroke.15 This makes for a concurrent contributory cause
for the death of the deceased, while the connection between the act and the death of the
deceased is further obscured by the fact that there was an interval of half an hour between the
injection of Angispan and the seizure, therefore the act of the accused does not form the last
link in the chain of causation.
ii. Medical Reports are inconclusive as to cause of death.
It is humbly submitted before this Hon’ble Court that medical evidence is not decisive
because it is primarily evidence of opinion and not of fact.16 An expert opinion without
reasons is unreliable,17 and when an expert opinion is rendered incorrect, the Court will be
well within its jurisdiction to discard the expert opinion.18
In the instant case, the post-mortem report assigns a cause of death without a reason,19 and is
hence unreliable. The forensic report assigns the cause of death to be due to air embolism,20
which is also improbable and incorrect, since, none of the medicines that were administered
to the deceased required the use of a syringe, and due to this there was no possibility of
D.W.1 introducing a fatal amount of air while Raghav was away.
14Page 16, Annexure 6 - Report of Investigation Officer u/s 173CrPC
15Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY 457 (6th ed., 2009).
16Arun Kumar v.StateAIR 1962 Cal 504; Chacko Mathai v. State of Kerala, AIR 1964 Ker 222.
17Haji Mohammad EkramulHaqv.The State of West Bengal, AIR 1959 SC 488.
18Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838.
19Page 10, Annexure 3 – Post Mortem Report
20Page 11, Annexure 4 – Forensic Report
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 5
MEMORIAL ON BEHALF OF DEFENCE
Furthermore, it is also contended that in cases of contradiction between the evidences of
medical opinion, the court is not to discredit other evidence on the basis of medical opinion.21
In the instant matter, the pathologist in his report attributed the cause of death to air embolism
and the post-mortem examiner concluded that it was due to drug over-dose or cross-reaction,
hence, the two medical opinions contradict each other.
Therefore, in absence of any circumstantial or positive evidence, the death of the deceased
cannot be said to have been caused by an act of D.W.1.
[B.1.B] D.W.1 DID NOT ACT WITH THE INTENTION OF COMMITTING CULPABLE HOMICIDE
There cannot be said to have existed an intention to commit culpable homicide because none
of the requisites in order to convict a person under Sec.299 are present, namely, he did not act
with the intention of causing death or causing such bodily injury as is likely to cause death,
[i] or with the knowledge that he is likely to cause death by such act [ii].
i. There was no intention on part of D.W.1 to cause death or such bodily injury as is likely
to cause death.
[i.A] D.W.1 acted in good faith, and is thus exempted from conviction u/s.92 of the
Bharat Penal Code, 1860
It is humbly presented before the court that acts done in good faith, albeit without the consent
of another, are not offences by virtue of Sec.92 of the Bharat Penal Code, 1860.22 In cases
where a person is unable to give consent, and there exists a state of emergency, a relationship
of temporary guardianship arises,23 and a person may act in good faith to help another in such
21H. Mansell Playdell of Simla v. Emperor, AIR 1926 Lah 313(315); BasappaBhimappaDoddamaniv. State,
AIR 1961 Mys 21 (24).
22Section 92, Indian Penal Code (Act 45 of 1860).
23Huttmann, G.H., A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 18 (1837); Ratanlal&Dhirajlal, THE INDIAN PENAL CODE 140 (33rd ed., 2011).
Surana And Surana National Trial Advocacy Moot Court & Judgment Writing Competition, 2015 6
MEMORIAL ON BEHALF OF DEFENCE
occurrence.24 Sec.52 of the Bharat Penal Code25 states that good faith is said to be exercised
when the act is done with due care and attention. The discretion of such a person, to choose
the method of treatment, is relatively wider in cases of emergency.26It is sufficient to
establish that in preponderance of possibilities, due care and attention is made out, in order to
confirm the good faith of the person so acting.27
‘Medical emergency’ has been defined as a sudden, unforeseen injury, illness or complication
that demands immediate care to save life or prevent gross disability, and the responsibility of
a person who attends to such a situation is limited to his competence.28The present case was a
medical emergency, since it was sudden and unforeseen, as it occurred without any warning,
preceding which the deceased was reportedly feeling fine.29 Therefore D.W.1 was obliged to
exercise appropriate skills that he possessed.30 He did so by acting immediately to procure a
medicine to cure the symptoms of the deceased,31 which he had seen treated before in his
training,32 and therefore exercised due care and attention in administering the correct
medicine in the situation of emergency.
24Malcolm Thorburn, Justifications, Powers, and Authority, 117 Yale Law Journal 1070 (2008).
25Section 52, Indian Penal Code, 1860 (Act 45 of 1860).
26LaxmanBalkrishna Joshi (Dr.) v. Dr.TrimbakBapuGodble, AIR 1969 SC 128.
27P. Swaminathanv. Lakshmanan, 1992 Cr LJ 990.
28Miles, S., DICTIONARY OF MEDICAL ETHICS 155-156 (2nd ed., 1981).
29Page 4, Factual Matrix , p 21
30Supra, note 32.
31Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY525 (6th ed., 2009).
32Page 4, Factual Matrix, p 21,
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MEMORIAL ON BEHALF OF DEFENCE
[i.B] Nevertheless, there was no intention to cause death of the deceased
Remarks purported to have been made in mockery cannot be said to reflect the
intention/motive to commit a crime.33 Furthermore, the intention to commit a culpable
homicide cannot be inferred when there is no previous enmity between the accused and the
deceased.34 The nature of the weapon alleged to be used also determines the intention to
commit culpable homicide.35
In the present case, the only time when D.W.1 spoke of harm caused to the deceased was
when the remark was made in mockery36 and it is also evident that there was no enmity
between the accused and the deceased,37 therefore intention to commit culpable homicide
cannot be said to have existed. The weapon alleged to be used was a syringe, which is not in
its ordinary course of use, used to cause death, hence intention cannot be said to be present.
ii. D.W.1 did not act with the knowledge that his act would result in the death of the
deceased
In the case of Juggan khan v. State of Madhya Pradesh,38 it was decided that where a
medicinal substance results in the death of the person it is administered to, cannot establish
that the accused acted with knowledge that he was likely by such an act to cause the death of
the deceased. Furthermore, in cases where there are abnormal conditions unknown to the
person which results in the death of the person, culpable homicide is not said to be caused.39
33Ravirajanv. State of T.N., 1998 Cri L.J 3086.
34Amarsinghv. State, AIR 1951 Raj 42.
35Jagrup Singh v. State Of Haryana, AIR 1981 SC 1552.
36 Page 3, Factual Matrix, p 16
37Page 2, 3 and 4,Factual Matrix, p 8, 17, 19, 21,
38Juggankhanv. State of Madhya Pradesh, 1965 AIR SC 831.
39Emperor v. BaiJiba, 1917 (19) Bom LR 823.
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MEMORIAL ON BEHALF OF DEFENCE
In the instant matter, the deceased showed the symptoms of severe heart problems, which
includes severe chest pain.40 The substance that has allegedly resulted in the death of the
deceased is administered as a medicine to cure the symptoms that the deceased was
showing.41 Thus, D.W.1 acted correctly by administering a medicine that any other doctor
would have given, which has been reaffirmed in Dr. Choudhary’s statement.42 It is also
pertinent to note that D.W.1 did not have knowledge of the medication taken by the
deceased,43 and hence D.W.1 cannot be said to have acted with the knowledge of any cross
reaction. Furthermore, since the death was due to an unknown abnormality in the deceased’s
system, namely – that he had a liver cirrhosis44 which accentuated the effect of the drug
administered to him, D.W.1 cannot be said to have the knowledge to commit culpable
homicide.
[C] THE ACCUSED ARE NOT LIABLE FOR FORGERY OF THE PRESCRIPTION.
There are three elements to be satisfied in order to prove the offence as mentioned below: (1)
The document or electronic record or part of it must be false; (2) It must have been made
dishonestly or fraudulently; and (3) It must have been made with intent to cause damage or
injury to the public or to any person.45 Fraud has to be proved as a fact by direct evidence or
by inferences by the proven fact.46
The factual matrix suggests that, D.W.1 after getting frustrated by fruitless attempts to
contact Dr. Choudhary found himself in a desperate state and then wrote the name of the
40D. L. Kasper, HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 60 (19th ed., 2015).
41Tripathi, K.D, ESSENTIALS OF MEDICAL PHARMACOLOGY525 (6th ed., 2009).
42Page 15 Annexure 5 - Dr. Choudhary’s statement,
43 Page 4, Factual Matrix, p 19
44 Page 11, Annexure – 4 – Forensic Report
45Daniel Hailey Walcott v. State AIR 1968 Mad 349.
46Indian Bank v. Satyam Fibres (India) Pvt. Ltd. AIR 1996 SC 2592.
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MEMORIAL ON BEHALF OF DEFENCE
medicine on the prescription in a hurry. The intent to cause damage is the major criteria to
constitute an offence u/s 463 which can’t be satisfied as the intention of the accused was to
save the life of the deceased.47 Since the medicine Angispan is a non-prescription drug, it is
immaterial that D.W.1 wrote the name of the medicine on the prescription.
There is no common intention to commit the crime of forgery
The offence has been clubbed with section 34 of the code and the basic ingredients are as
such: (1) the criminal acts should have been done by more than one person. (2) Every
individual act should have been in furtherance of the common intention of all such persons.48
Considering the facts, it could not be derived that D.W.2 had even the minimal knowledge of
the prescription saga. Acting of the co accused in furtherance of the crime is necessary, but in
the instant case the co accused did not have knowledge of any occurrence, and thus, did not
act in common intent.
CHARGES IV & V: THE ACCUSED ARE GUILTY OF IDENTITY THEFT AND
HACKING
It is humbly placed before the Hon’ble Court that D.W.1 and D.W.2 are not guilty of offences
under Sec34 r/w Sec.465 of IPC, 1860 and Sec.66 and Sec.66C of Information Technology
Act, 2000. D.W.2 would not be liable for instigating and abetting the crime caused [A] and
they had no common intention [B] to defraud or to commit identity theft [C]
[A] D.W.2 IS NOT LIABLE FOR ABETTING IDENTITY THEFT U/S 109 OF IPC
It is humbly placed before the Hon’ble Court that a person is said to abetting a crime when he
instigates [A.1], conspires [A.2] and intentionally aids [A.3] the commission of the crime.49
47Daniel Hailey Walcott v. State AIR 1968 Mad 349.
48Mithu Singh v. State of Punjab,AIR 2001 SC 1929.
49Sohan Raj v. State, 2008 (11) SCC 215.
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MEMORIAL ON BEHALF OF DEFENCE
Moreover, in RanjanaYaki v. State50 it was ruled that a person can be held liable u/s 109 of
IPC, 1860 if an act is committed in consequence of the abetment.51 However, in this case
neither did D.W.2 abet the commission of crime nor was any act committed which would
establish the crime of abetment.
[A.1] There is no abetment by Instigation
Instigating means inciting or urging someone to do some drastic or inadvisable action or to
stimulate the same.52 D.W.1 and D.W.2 just shared common interest in technology and often
experimented with new things.53 There was summarily no instigation to cause any drastic or
inadvisable act.
D.W.2 was made to admit that he had taught D.W.1 to decrypt the deceased’s password for
fun by tracking the keystrokes by the police authorities.54 The statement recorded under
Sec.161 of Cr.P.C., 1973 cannot be considered as evidence.55 In actuality the two incidents of
Rahul hacking in Karan’s account and Mano transferring funds are not at all related.
[A.2] There is no abetment by Conspiracy
Conspiracy under Section 109 of the Bharat Penal Code can be proved by circumstantial
evidence but a step towards the commission of the crime needs to be taken.56 In the case of
Manick Chand v. State57 it was held that on a charge of forgery, when there is uncertainty in
the evidence of prosecution, it is to the benefit of the defense and cannot be resolved by the
50RanjanaYakiv. State 2004 (12) SCC 521.
51Joseph v. State 1995 CrLJ 502.
52Sanjuv. State, 2002 (5) SCC 371.
53Page 2, Factual Matrix, p 6
54Page 18, Annexure 6 - Report of Investigation Officer u/s 173CrPC
55Ram Swaroopv. State, AIR 2004 SC 2943.
56Noor Mohammad Yusuf v. State of Maharashtra, AIR 1971 SC 885.
57Manick Chand v. State, 1970 ILR (1) 103.
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MEMORIAL ON BEHALF OF DEFENCE
Court. Inferences regarding the guilt can be drawn only when circumstances are capable of
reasonable explanation and cannot be established on mere suspicion, surmises or interest.58
In the ruling of Mahmood v. State of UP59 criteria to establish circumstantial evidence as
proof was laid down as: (1) The circumstances must have fully been established by
unimpeachable evidence (2) the circumstances are of determinative tendency and, (3) the
circumstances, are incapable of explanation on any reasonable hypothesis except that of guilt.
Applying the above rule to our case we find that the witness statement i.e. Raghav’s
statement of finding D.W.1 and D.W.2 using the desktop along with the laptop60 and finding
of the USB drive does not create a chain of events.61The circumstantial evidence in order to
sustain conviction must be complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused.62 In this inferences cannot be drawn from the
circumstances leading to the guilt of the parties. The circumstantial evidence should not only
be consistent with the guilt of the accused but should be inconsistent with the innocence.63
In this case there was a break in the chain of events thus proper evidence of guilt cannot be
established.
[A.3] There is no abetment by Intentional Aiding
It is humbly contended that no act was done in furtherance of crime. D.W.2 would connect
his pen drive to the desktop and transfer funds which he did not do with the purpose to
embezzle funds.64 There was no involvement of D.W.1 in the act of hacking and transferring
58CBI v. K. NaryanRao, 2012 (3) SCC 1183.
59Mahmoodv. State of UP, AIR 1976 SC 69.
60 Page 14, Annexure 6 - Report of Investigation Officer u/s 173CrPC
61Page 20, Annexure 7 – Expert Witness
62Gambhirv. State of Mahrashtra, AIR 1982 SC 1157.
63Biren Mandal v.State, 1996 CriLJ 3455.
64Page 2, Factual Matrix, p 6
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MEMORIAL ON BEHALF OF DEFENCE
funds nor did D.W.2 aid him in any act of theft. Raghav merely had suspicion that the two
were up to something65 and that cannot be relied upon.66
[B] THE ACCUSED HAD NO COMMON INTENTION TO COMMIT THE
OFFENSE OF IDENTITY THEFT
It is humbly placed before the Hon’ble Court that D.W.1 and D.W.2 are not collectively
liable as they had no common intention to commit a fraud and embezzle funds. To prove
common intention two elements must be necessarily proved i.e. there was no common
intention [B.1] and no offence was committed in furtherance of the crime. [B.2] 67
[B.1] There was no common intention
Common intention implies that there should be a prior concert or prior meeting of minds68
and such has to happen prior to the commission of the act of crime.69This can be established
circumstantially.70 The acts committed are two different and separate acts.
Arguendo, the fact that D.W.2 did transfer an extra amount cannot be said to be hacking but
trespassing which is a separate offense altogether.71Furthermore, even if it is assumed that
D.W.1 and D.W.2 acted with a similar intention, common intention has been distinguished
and understood differently from similar intention.72
65Page 14, Annexure 6- Statements Recorded u/s 161 of CrPC 1973
66Manick Chand v. State, 1970 ILR (1) 103.
67Shiv Prasad ChunniLal Jain v. State of Maharashtra, AIR 1965 SC 264.
68PandurangTukiav. State of Hyderbad, AIR 1955 SC 216.
69ShankarlalKacharabai and Others v. State of Gujarat, AIR 1965 SC 1260; Ram Tahalv. State of Uttar Pradesh, AIR1972 SC 254.
70Mahaboob Shah v. King Emperor, AIR 1945 PC 118.
71Sec.43, Information Technology Act, 2000 (Act 21 of 2000); RBI REPORT ON INTERNET BANKING (PART 2 OF 2), 22/01/2000,https://www.rbi.org.in/SCRIPTS/PublicationReportDetails.aspx?UrlPage=&ID=244 (last visited 15th August, 2015).
72Mithu Singh v. State of Punjab,AIR 2001 SC 1929.
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[B.2] Act committed was not in furtherance of the crime
To attract the commission of mischief under Section 34 participation is necessary in the
commission of the offense.73 the term “furtherance” has been interpreted to mean an act done
in advancement or promotion of crime.74 Section 34 denotes a series of acts as a single act
and does not include independent criminal actions.75
The two acts done by the parties i.e. D.W.1 hacking into the deceased’s computer (which has
been disproved)76 and Mano transferring funds by consent are two different acts and no act
was done in advancement or promotion of the common intention. For two acts to be
commonly intended they also have to be conjointly committed which did not happen.77
[C] WHETHER ACCUSED HAD COMMITTED FORGERY U/S 465 OF BPC, 1860
AND 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000
For conviction under Section 465 of the Bharat Penal Code, accused should have prepared a
false document or electronic record78[C.1] and there should be evidence of act of fraud or
deceit was conducted by the accused [C.2]. Additionally, no offence under Section 66C of
Information Technology Act, 2000 was committed. [C.3]
[C.1] The accused did not prepare a false document or electronic record
In Gulab Singh v. State of Rajasthan79 it was ruled that one of the essential ingredients is that
the accused must make or prepare a false document or electronic record. Making of false
73Sunny Kapoor v. State, 2006 (10) SCC 182.
74ShankarlalKacharabai and Others v. State of Gujarat, AIR 1965 SC 1260;.Dani Singh v. State, 2004 (13) SCC 203.
75Suresh v. State, 2001 (3) SCC 673.
76Refer Contention 2.3.2
77Ambani K. v. State, 2005 (13) SCC 422.
78People’s Patriotic Front v. Birla, 1984 CrLJ 545.
79Gulab Singh v. State of Rajasthan, 1984 (2) Cri 869.
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MEMORIAL ON BEHALF OF DEFENCE
document means sealing and signing it as a document knowing that the person making it has
no authority to do so.80
D.W.1 did not make or forge any document as he had his uncle’s express authority to do so.81
D.W.2 also did not commit forgery as bank account online is not a document and password is
not a signature82 since the definition for method of authentication of electronic records does
not take into account other means of authenticating electronic records.83 The definition of
banker’s book does not include online storage of banking data.84 Thus if there is no document
fraudulently and dishonestly prepared no offence of forgery gets disproved.
[C.2] There is no evidence of act of fraud or deceit was not conducted by the accused
[C.2.A] NO CONCRETE EVIDENCE WAS FURNISHED
For a document to be considered as primary evidence, it should be produced for inspection of
the court,85 and it is considered as best evidence.86 Document means any matter expressed or
described upon any substance by means of letter, figures or marks or by more than one of
those means used.87 In the instant matter, no documentary evidence of bank statements was
relied upon, and hence, there is no primary evidence.
80Re Rasiyat Ali @ Babu Mishra, 1881 ILR (7) 352.
81Page 3, Factual Matrix, p 15
82Section 3(2), Information Technology Act, 2000 (Act 21 of 2000).
83Manisha Karia&TejasKaria, ELECTRONIC EVIDENCE, DISCLOSURE, DISCOVERY AND ADMISSABILITY315 (1st ed., 2007)
84 Schedule 3 of Section 1, Information Technology Act, 2000 (Act 21 of 2000).
85Section 62, Indian Evidence Act, 1872 (Act 1 of 1872).
86Mohar Singh v. DeenDayal Gupta, 1996 VAD (Delhi) 704.
87Section 3, Indian Evidence Act, 1872 (Act 1 of 1872).
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MEMORIAL ON BEHALF OF DEFENCE
[C.2.B] THE EXPERT WITNESS CANNOT BE RELIED UPON
Expert evidence even if duly proved is not binding on the court.88 If the report of the expert is
inadequate in any sense, his evidence is of no use.89
In this case the expert evidence was discrepant, as he had stated that the computer was logged
in at the time when everyone was busy attending to ailing Karan.90
[C.3] No offense under Section 66C of Information Technology Act, 2005 committed.
Both Section 66 and 66C require the element of dishonesty and fraud.91
In this case innocence of D.W.2 has been proved in Contention 2.3.2. As far as D.W.1 is
concerned he too did not act either dishonestly or fraudulently because the money was taken
by consent. D.W.1 had express authority to transfer funds from Karan’s account92 and even
on that day D.W.1 was asked to transfer funds the amount of which was not mentioned.93
Funds transferred with express consent cannot be termed as fraud.94 Thus no fraud or deceit
was committed by D.W.1 as it was done consensually.95
88Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838.
89 B.R. Sharma , FORENSIC SCIENCE IN CRIMINAL INVESTIGATION AND TRIAL (4th ed., 2012);Dayal Singh v. State of Uttaranchal, 2012 (3) SCC 838.
90Page 20, Annexure 7 - Expert Evidence
91The State of Maharashtra v. RajkumarKunda Swami, 2002 (104) BomLR567.
92Pg 3, Factual Matrix, p 16
93Pg 4 Factual Matrix, p 20
94R .M .K .R .M .SomasundaramChetty v.M .R .M .V .L . Subramanian Chetty, AIR1926PC136.
95Central National Bank Ltd .v .United Industrial Bank Ltd; AIR1954SC181.
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MEMORIAL ON BEHALF OF DEFENCE
PRAYER FOR RELIEF
Wherefore, in light of facts stated, issues raised, authorities cited and arguments advanced,
may this Hon’ble Court be pleased to:
1. Acquit Manohar Lal and Rahul Gulatifor the charges framed against them.
AND/ OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted.
Place: Durg, Xanadu
Date: __ September, 2015
S/d ____________
(COUNSEL ON BEHALFOF THE DEFENCE)