my memorial 2nd
TRANSCRIPT
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IN THE HONOURABLE SESSIONS MAGISTRATE COURT OFAZADPUR
AT AZADPUR
UNDER SECTION 26 OF CRIMINAL PROCEDURE CODE
CRIMINAL APPLICATION NO. ......OF 2013
THE STATE
(PROSECUTION)
V/S
WALAITI RAM & OTHERS
(ACCUSED)
MEMORIAL ON BEHALF OF THE ACCUSED
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TABLE OF CONTENTS
TABLE OF CONTENTS LIST OF ABBREVIATIONS INDEX OF AUTHORITIES
List of statutes Law Lexicons referred List of books List of cases List of Internet Sources
STATEMENT OF JURISDICTION STATEMENT OF FACTS ISSUES PRESENTED SUMMARY OF ARGUMENTS
BODY OF PLEADINGS
ISSUE1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER
SECTION 302 READ WITH SECTION 34 OF THE IPC?
ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION OF THE
IMPUGNED TECHNIQUES VIOLATES THE RIGHT AGAINST SELF
INCRIMINATION ENUMERATED IN ARTICLE 20(3) OF THE INDIAN
CONSTITUTION?
ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY
DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES IT
FULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT?
PRAYER
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LIST OF ABBREVIATIONS
AIR All India ReporterART Article
& And
Anr. Another
CJ Chief Justice
Cr.P.C Criminal Procedure Code
DB Division Bench
Evi Evidence
FB Full Bench
HC High Courti.e. That Is
J. Justice
IPC Indian Penal Code
Ors. Others
PARA Paragraph
SC Supreme Court
SUPRA Above
Vs. Versus
VOL. Volume
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INDEX OF AUTHORITIES
LIST OF STATUTES
INDIAN PENAL CODE,1960 CRIMINAL PROCEDURE CODE,1974 EVIDENCE ACT THE CONSTITUTION OF INDIA,1950
TEXTS/ARTICLES/BOOKS REFERRED
Ratanlal and Dhirajlals, Law ofCrimes, 23rd
Edition Banerjees, Criminal Major Acts PSA Pillais, Criminal Law, 11th Edition Dr. Avtar Singh, Principles of The Law of Evidence, 20th Edition Dr. J.N.PANDEY, The Constitutional Law of India, 49th Edition P.M.Bakshi, The Constitution of India, 5th Edition K.D.Gaur, The Indian Penal Code, 4 th Edition
TABLE OF CASES
Selvi v. State of Karnataka AIR 2010 SC 1974
M.P.Sharma v. Satish Chandra AIR 1954 SC 300
Rojo George vs Deputy Superentendent Of Police 2006 (2) KLT 197
Nandini Satpathy v. P.L.Dani1978 AIR 1025, 1978 SCR (3) 608
Santokben Sharmanbhai Jadeja vs State Of Gujarat 2008 CriLJ 68, (2008) 1
Manoj Kumar Singh vs The State (Govt. Of Nct Of Delhi) on 6 April, 2011
GLR 497, 2008 (2) KLT 398
JOURNALS REFERRED
All India Reporter Criminal Manual Law Suit All India Criminal Decision
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INTERNET SOURCES
www.unilexlegal.com www.legalserviceindia.com www.indiankanoon.org www.manupatra.com www.judid.nic.in www.google.com
http://www.unilexlegal.com/http://www.unilexlegal.com/http://www.legalserviceindia.com/http://www.legalserviceindia.com/http://www.indiankanoon.org/http://www.indiankanoon.org/http://www.manupatra.com/http://www.manupatra.com/http://www.judid.nic.in/http://www.judid.nic.in/http://www.google.com/http://www.google.com/http://www.google.com/http://www.judid.nic.in/http://www.manupatra.com/http://www.indiankanoon.org/http://www.legalserviceindia.com/http://www.unilexlegal.com/ -
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STATEMENT OF JURISDICTION
THIS HONOURABLE SESSIONS COURT OF AZADPUR DOES NOTHAVE THE JURISDICTION TO TRY, ADJUDICATE AND ENTERTAIN
THIS MATTER UNDER SECTION OF THE CRIMINAL PROECEDURE
CODE OF INDIA.
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STATEMENT OF FACTS
On 01.05.2009, a telephone call was received in Police Station No.1,Azadpur at about 1.00 AM that two dead bodies were lying on the berm
of the by-pass of Azadpur in a pool of blood. Upon arrival at the by-pass ,
the police party found the two dead bodies,one of male and other of
female.
In an ocular examination of the bodies revealed, the two dead bodies havebeen done to death by slitting their throats and in addition to that a large
number of small injuries had also been inflicted on various body parts.
The villagers from the nearby village Azadpur identified the deceased girlas Phool Wati from their village and the boy as Atma Singh of village
Mastana. The girl belonged to high caste and boy belonged to low caste.
The post mortem report revealed that the boy was aged about 22 yearsand the girl about 19 years and the cause of death was shock and
haemorrhage, on account of multiple injuries.
The blood stained earth was sent to forensic laboratory for analysis. Theforensic analysis revealed human blood bearing 3 different blood groups,
i.e. A+ boy, B+ girl and O+ did not relate to any of the deceased.
Additional facts that came to light were that Atma Singh and Phool Watibelonged to different castes but wanted to get married against the wishes
of the parents of Phool Wati
.
They eloped and got married at a Mandir. The family members of PhoolWati threatened to kill Atma Singh and his family members.
The police arrested Walaiti Ram and Yash Rani, the parents of the girland Yogesh, her younger brother and a community leader Zamidara on
finding a prima facie case against them for offence punishable u/s 302/34
IPC.
A medical examination of Yogesh revealed that he had a cut on his palm.The magistrate granted permission to the chief medical officer to draw a
blood sample of his forcefully, as may be necessary. The report of the
forensic laboratory disclosed that the third sample of blood, bearing
blood group O+ matched with the blood group of Yogesh.
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The police found out the weapons through Narco test and by forensictest, they found blood group A+ and B+ on the knife , but did not find
O+.
The police also recorded the statement of one Zile Ram, a Dalit, agedabout 75 years and a resident of Village Mastana, to the effect that on
midnight of 30th April and 1st may, 2009, he had seen Yogesh and
Walaiti Ram near the place of recovery of dead bodies. On the basis of
this evidence, the police filed a final report
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ISSUES RAISED
ISSUE1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER
SECTION 302 READ WITH SECTION 34 OF THE IPC?
ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION OF THE
IMPUGNED TECHNIQUES VIOLATES THE RIGHT AGAINST SELF
INCRIMINATION ENUMERATED IN ARTICLE 20(3) OF THE INDIANCONSTITUTION?
ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED BY
DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND DOES ITFULFILL THE REQUIREMENTS OF SEC.32 OF THE EVIDENCE ACT?
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SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE ACCUSED ARE PUNISHABLE UNDER
SECTION 302 READ WITH SECTION 34 OF THE IPC?
The accused cannot be punished under sec.302 read with sec.34 ofthe IPC as the complete research is not done and the evidence isnot strong against the accused. Therefore he cannot be accused of
murder according to sec.302
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ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED
BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND
DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE
EVIDENCE ACT?
ARTICLE 20(3): No person accused of any offence shall becompelled to be a witness against himself
Under this sec. of the article if the person is compelled to confesssomething by 3
rddegree or using tests like narco, brain mapping,
etc. It can be stated that the right against self incrimination of
accused person is violated.
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ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED
BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND
DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE
EVIDENCE ACT?
This section comes into play when a person whose statement is sought tobe proved, has become incapable of giving evidence.
Charges cannot be laid against the accused depending on the evidencegiven by a person who has become incapable of giving evidence ongrounds of his old age.
Hence the accused should not be held liable.
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BODY OF PLEADINGS
ISSUE 1: WHETHER THE ACCUSED ARE PUNISHABLE
UNDER SECTION 302 READ WITH SECTION 34 OF THE IPC?
It is most humbly submitted before this Honourable Sessions Court that the
Accused are not liable for offence at all. This is submitted on the basis of the
very facts of the cases & arguments advanced and the various judgements
passed.
1.1 The police arrested Walaiti Ram, Yogesh, Yash Rani and Zamidara on the
basis of the facts which as follows:
-The deceased boy, named Atma Singh was of village Mastana and a lower
caste boy, who wanted to marry the deceased girl, named Phoolwati of a high
caste from village Azadpur. So, they eloped and got married at a temple.
- The family girl had threatened to kill the boy and his family.
- Zamidara called both the families and put pressure on them either to dissolve
their marriage or face a social boycott.
1.2 At the time of investigation a wound was found on the arm of girls brother
Yogesh but on which arm the wound was found or how old it was is not
mentioned. Yogesh could have got the wound many days before the murder.
1.3 The blood reports are not enough DNA tests should be carried to proof that
the 3rd
person whose blood was found at the murder site was Yogesh
1.4 Girls family had threatened to kill the boy and his family but not the girl but
here we see even the girl is killed. Why would they kill their own daughter?
Hence, the accused cannot be held liable under sec.302 read with sec 34 of
IPC.
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ISSUE 2: WHETHER THE INVOLUNTARY ADMINISTRATION
OF THE IMPUGNED TECHNIQUES VIOLATES THE RIGHT
AGAINST SELF INCRIMINATION ENUMERATED IN
ARTICLE 20(3) OF THE INDIAN CONSTITUTION?
This is most respectfully submitted before this sessions court that this act of
Tests is violative of the provisions of Article 20(3) of the constitution which is
ex- facie evident from the facts of the case, the provisions of Article 20(3) and
the various judgements available on this subject matter.
The issue laid down by the accused is reasonable and the same has nexus
with the object sought to be achieved.
2.1The provision under article 20(3) provides for Prohibition against Self-Incrimination- that no person accused of any offence shall be compelled to
be a witness against himself. The protection is against compulsion to be a
witness. The Supreme Court interpreted the expression to be a witness
very widely so as to include oral, documentary and testimonial evidence.
2.2The results obtained through involuntary administration of such tests likeNarcoanalysis come within the scope of testimonial compulsion, thereby
attracting the protective shield of Article 20(3)1.
This right has the following essentials:a) It is a right pertaining to a person who is accused of an offence
b) It is a protection against compulsion to be a witness.c) It is a protection against such compulsion relating to his giving evidence
against himself.
1Selvi v. State of KarnatakaAIR 2010 SC 1974
2Santokben Sharmanbhai Jadeja vs State Of Gujarat 2008 CriLJ 68, (2008) 1 GLR 497, 2008 (2) KLT 398
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2.3narcoanalysis is a complicated procedure which has drastic side effects. Itis further averred that if a person is subjected to Narcoanalysis at this
young age of 24 or even below that, it will have far reaching consequences
on both his physical and mental situation. The statements that came into
picture during the Narco analysis cannot be reliable.
HENCW, RIGHT AGAINST SELF INCRIMINATION
ENUMERATED IN ARTICLE 20(3) OF THE INDIAN
CONSTITUTION WAS VIOLATED OF THE ACCUSED.
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ISSUE 3: WHETHER THE EVIDENCE/STATEMENT PROVIDED
BY DALIT, ZILE RAM IS CONSTITUTIONALLY VALID AND
DOES IT FULFILL THE REQUIREMENTS OF SEC.32 OF THE
EVIDENCE ACT?
This is most respectfully submitted before this sessions court that this act is
violative of the provisions of sec.32 of the evidence act which is ex- facie
evident from the facts of the case, the provisions of sec.32 and the various
judgements available on this subject matter.
The issue laid down by the accused can be considered as valid and the samehas nexus with the object sought to be achieved.
3.1 Under sec.32 of Evidence Act a statement, written or verbal, or relevant
facts made by a person who has become incapable of giving evidence cannot be
called as a witness.
3.2 Incapability of a person is decided on the basis of his age, mental and
physical condition etc. If the person is insane or too old or he has some physical
problems like blindness or if he is underage he wont be fit to be a witness.
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3.3Here, the witness is incapable because of his age because he is 75 year old.
Hence , the accused cannot be held guilty on the statement of the witness.
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PRAYER
Wherefore it may please this Honourable Court in the lights of facts presented,
issues raised, arguments advanced, and authorities cited, the counsel for the
Accused humbly pray before this Honourable Court, to kindly adjudge and
declare:
1) IN THE INSTANT CASE DEATH SENTENCE SHOULD NOT BEDECLARED.
2) THAT THE ACCUSED BE RELEASED WITHOUT ANY COST3) THAT THE ACCUSED RIGHT TO LIFE AND RIGHT UNDER ARTICLE
20(3) SHOULD BE PROTECTED.
And pass any other appropriate order as the court may deem fit and for this act
of kindness, the Accused as in duty bound, shall forever pray.
Respectfully Submitted
Sd/-
Priya Arora
Council for the accused
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