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TRANSCRIPT
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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015
BEFORE THE COURT OF SESSIONS AT DURG, XANADU
S.C. NO.111 OF 2015
STATE OF Xanadu
(PROSECUTION)
v.
1. Manohar & 2. Rahul
(DEFENCE)
FOR OFFENCES CHARGED UNDER:
SECTION 302, 465 READ WITH SECTION 34, 120-B & 109 OF THE BHARAT PENAL CODE, 1860 AND SECTION 66 & 66C OF THE INFORMATION AND
TECHNOLOGY ACT, 2005
UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE
MEMORANDUM ON BEHALF OF THE PROSECUTION
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TABLE OF CONTENTS
Table of Contents i
List of Abbreviations ii
Index of Authorities iii
Table of Cases iv
Books iv
Websites v
Statues v
Statement of Jurisdiction vi
Statement of Facts vii
Statement of Charges viii
Summary of Arguments ix
Arguments Advanced 1
Issue-I
Whether the accused are guilty of Murder?
1
Issue-II
Whether the accused are guilty of Forgery?
10
Issue-III
Whether the accused are guilty of Computer Related Offences and
Criminal Conspiracy?
14
Prayer xi
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LIST OF ABBREVIATIONS
¶ Paragraph
¶¶ Paragraphs
A Acussed
AIR All India Reporter
All Allahabad High Court
BPC Bharat Penal Code i.e. Indian Penal Code
Cal Calcutta High Court
Cri LJ/ Cr LJ Criminal Law Journal
Cr.P.C. Criminal Procedure Code
Del Delhi High Court
DW Defence Witness
Ed. Edition
I.T. Act Information Technology Act
Mad Madras High Court
Bom Bombay High Court
Ori Orissa High Court
Raj Rajasthan High Court
n. Foot Note No.
PW Prosecution Witness
p. Page No.
r/w Read With
SC Supreme Court
Supp Supplementary
SCC Supreme Court Cases
SCR Supreme Court Report
Sec. Section
u/s Under Section
v. Versus
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INDEX OF AUTHORITIES
TABLE OF CASES:
Nayab Singh v. State of Rajasthan 2007(3) Raj 2077
State of Orissa v. Raja Parida 1972 Cr LJ 193 199 (Ori)
Madan Raj Bhandari v. State of Rajasthan AIR 1970 SC 436 : 1970 Cr LJ 519
Kishori Lal v. State of Madhya Pradesh (2007)10 SCC 797 : AIR 2007 SC 2457
Jabamalai Royappan In Re. 1981 LW (CR) 136
Santosh v. State of Madhya Pradesh AIR 1975 SC 654
State v. Savithri 1976 Cr LJ 37 (Mad)
Ashok Nivruti Desai v. State of Maharashtra 1995 I Cr LJ 826 (Bom)
N.M.M.Y. Momin 1971 Cr LJ 793 : AIR 1971 SC 885
Public Prosecutor v. Samasundaram AIR 1959 mad 373
Mohhamed Asif v. State of Uttaranchal 2009 SC
Santosh v. State of Madhya Pradesh 1975 Cr LJ 602 (SC)
Dr. Vimla v. Delhi Administration AIR 1963 SC 1572
Seva Ram v. State of Uttar Pradesh 2008 I Cr LJ 802 SC
State of Madhya Pradesh v. Desc Raj 2004 Cr LJ 1415 SC
Dr. S. Dutt v State of U.P. AIR 1966 SC 523
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Lalan v. State of Bihar 2003 Cr LJ SC
Aizaz v. State of U.P. (1008)4 Cr LJ 4374 (SC)
Mohhamed Arif v. State of NCT of Delhi (2011)13 SCC 621
N.V. Subarao v. State (2013)2 SCC 162
M.S. Reddy v. State Inspector of Police,
ACB Nellor
1993 Cr LJ 558 (A.P.)
Tamil Nadu v. Nalini 1999 Cr LJ 3124 (SC)
State of Himachal v. Krishanlal Pradhan AIR 1987 SC 773
LIST OF BOOKS REFERRED:
• HALBURY’s LAW of ENGLAND 4th Ed. Vol. II
• Cyber Crimes & Law by Dr. Amita Verma
• Information Technology Law and Practice, 3rd edition (Reprint 2012), Vakul
Sharma
• Criminal Law Cases and Materials, K D Gaur 7th edition, Lexis Nexis
• Law of Crimes, Ratan Lal and Dheeraj Lal, 34th edition 2014, Lexis Nexis
• Law of Crimes, K.D. Gaur 5th edition, 2014, Universals Law Publication
• Law of Evidence, Ratanlal and Dhirajlal 24th edition, Lexis Nexis Publication
• Kenny’s Outline of Criminal Law, 19th Ed.
• Supreme Court Yearly Digest 2014
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• Supreme Court Yearly Digest 2013
• Supreme Court Yearly Digest 2012
• Supreme Court Yearly Digest 2011
• Supreme Court Yearly Digest 2010
LIST OF WEBSITES:
• www.courtnic.nic.in
• www.manupatra.com
• www.indiankanoon.org
• www.supremecourtofindia.nic.in
• www.judis.nic.in
• www.drugs.com
• www.medscape.com
STATUES:
• Indian Penal Code, 1860, Bare Act by Universals
• Indian Evidence Act, 1872 , Bare Act by Universals
• Criminal Procedure Code, 1973, Bare Act by Universals
• IT Act, 2000, Bare Acts by Universals
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STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with
Section 209 of the Code of Criminal Procedure, 1973.
Section 177:
‘177. Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired into and
tried by a Court within whose local jurisdiction it was committed.’
Read with Section 209:
‘209. Commitment of case to Court of Session when offence is triable exclusively by 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.’
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STATEMENT OF FACTS
1. Manohar (Mano) started living with his uncle, Karan, after the death of his parents. Mano
was a bright and studious boy and wanted to be a doctor. He got admission in TMC, a
reputed private medical college in 2011.
2. Dr. Deshpande took a keen interest in Mano, as he was bright and sincere student. Mano
would share all his problems with him.
3. Mano became friends with Rahul, a medical student who wanted to be a tech guru. Mano
would be eager to learn about technology through Rahul, in his free time.
4. Karan’s drinking habits were detested by his wife Devika and their son Raghav. Even
Mano exhorted Karan to give up drinking. But on the other hand, Mano provided
emotional support to Karan too and tended to his basic needs.
5. Fearing Mano’s welfare, due to the family’s hostile behaviour towards him, Karan got a
Rs. 2 Crore/- Insurance Policy in Mano’s name, and told about the same to Mano on 21st
May 2014.
6. On 3rd August, Karan experienced sudden chest and stomach pain. Mano tried contacting
Dr. Chaudhary, but in vain. Mano wrote the name of medicine Angispan and asked
Raghav to get it. Mano administered the drug via intravenous as Karan was in no
condition to swallow the tablet. Karan was quiet for half an hour but then suddenly
collapsed and died.
7. Mano said that he wasn’t aware of the sedatives that Karan had taken earlier. He meant to
save Karan from pain, as the medicines he administered were common and general.
8. After the preliminary investigation, the body was sent for post-mortem, and some
evidences were sent for forensic examination. Mano and Rahul were later arrested for
Karan’s murder. The matter is listed for hearing before the Sessions Court, Durg, Xanadu.
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STATEMENT OF CHARGES
CHARGE 1:
Manohar (Mano) has been charged under Section 302, 465 read with 34 and 120B of the
Bharat Penal Code relating to Murder, Forgery and Criminal Conspiracy; and under Section
66 & 66C of the Information and Technology Act, 2000 relating to Hacking with computer
system and Identity theft.
CHARGE 2:
Rahul has been charged under Section 302, 465 read with 34,120B and 109 of the Bharat
Penal Code relating to Murder, Forgery, Criminal Conspiracy and Abetment; and under
Section 66 & 66C of the Information and Technology Act, 2000 relating to Hacking with
computer system and Identity theft.
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SUMMARY OF ARGUMENTS
ISSUE I
WHETHER THE ACCUSED ARE GUILTY OF MURDER?
It is humbly submitted before this Hon’ble Court that the accused, Manohar (Mano) (accused
hereinafter referred to as A-1) and Rahul (co-accused hereinafter referred to as A-2) are
guilty of Murder under section (hereinafter referred to as u/s) 300 of the Bharat Penal Code,
1860 (hereinafter referred to as ‘BPC’), and therefore should be charged u/s 302 of the
‘BPC’. A-1 had the knowledge, intention and motive for killing Karan (hereinafter referred to
as the deceased) as he was the nominee with the Insurance Policy so, A-1 would be the
benefactor in case of the death of the deceased. A-2 had his personal interest attached with A-
1 so he abetted the act done by A-1 and is liable u/s 109, BPC. Thus, the accused A-1, saw
the perfect opportunity to strike and didn’t hesitate a bit before administering the drug
Angispan, via intravenous through a syringe with air bubbles in it, causing air embolism,
which can cause the heart to stop within minutes. While committing the said act the accused
A-1 had committed murder, thus fulfilling all the elements of Section 300, and rightfully
convicted u/s 302 and A-2 u/s 109 and 302 of the Bharat Penal Code.
ISSUE II
WHETHER THE ACCUSED ARE GUILTY OF FORGERY?
It is humbly submitted before this Hon’ble Court that the accused, A-1 and A-2 are guilty of
committing Forgery u/s 465 read with (hereinafter referred to as r/w) Sec 34, BPC which
states about ‘Acts done in pursuance of Common Intention’, of the Bharat Penal Code. Since,
they had the knowledge, intention and motive to do so as A-1 owed a debt to A-2. It was for
the repayment of this loan money that A-1 fraudantently was motived to transfer 2.50 lakhs
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money from the deseased’s account without putting it to his knowledge. Furthermore, A1 had
written the name of the medicine that had to be administered to deceased, on Dr. Chaudhary’s
(DW-4) prescription, without his permission or knowledge, which adds to the offence of
forgery. They had an ill intention accompanied by an illegal motive. They have committed
the said act, thus fulfilling all the essential ingredients of Sec 465 r/w Sec 34 of the BPC.
ISSUE III
WHETHER THE ACCUSED ARE GUILTY UNDER COMPUTER RELATED
OFFENCES AND IDENTITY THEFT?
It is humbly submitted before this Hon’ble Court that the accused, A-1 and A-2 are guilty of
committing offences u/s 66 and 66C r/w Sec 43 of the Information and Technology Act, 2000
(hereinafter referred to as I.T. Act 2000. The accused have done the acts of ‘dishonestly’ and
‘fraudulently’ as mentioned u/s 66 of the I.T. Act, 2000. Furthermore they had also used the
keylogger to decrypt the deceased’s bank password and make unauthorized transactions of
money. This proves the criminal conspiracy u/s 120B, BPC. Hence all the ingredients of the
said sections are satisfied, and both the accused A-1 and A-2 are to be held guilty u/s 66 and
66C of the I.T. Act 2000, and Sec 120B, BPC.
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ARGUMENTS ADVANCED
ISSUE-I
WHETHER THE ACCUSED ARE GUILTY OF MURDER?
It is humbly submitted before this Hon’ble Court that the accused, A-1 and A-2 are guilty of
Murder u/s 300, BPC, 1860, and therefore should be charged u/s 302 of the ‘BPC’. A-2 had
his personal interest attached with A-1 so he abetted the act done by A-1 and is liable u/s 109,
BPC. The matter of being accused with murder and abetment is being dealth in the present
issue (Issue I), while the charges and punishment for forgery and common intention will be
dealth in the subsequent issue (Issue II) and the charges and punishment for computer related
offences, identity theft and criminal conspiracy will be dealt with in the last issue (Issue III).
The essestials of a murder1 are intention, motive, knowledge2, Actus Reas resulting in either
the death or injury, have been proved beyond a reasonable doubt. Sec 299 corresponds with
Sec 300, B.P.C. 1860.3
Whereas, abetment4 constitutes of instigating, engaging in a conspiracy and intentionally
aiding a person to commit a crime. Abetment is complete when there is instigation or
engagement in a conspiracy to commit a crime. It is not necessary that the offence abetted
must be committed. It is only in cases of intentional aiding that the abettor would have to be
acquitted with the principal offender.5 Where the offence is committed in consequence of the
1 Sec 300, BPC. 2 Nayab Singh vs State of Rajasthan, 2007(3) Raj 2077. 3 State of Orissa v Raja Parida 1972 Cr LJ 193 199 (Ori). 4 Sec 107, BPC. 5 Madan Raj Bhandari v. State of Rajasthan, AIR 1970 SC 436: 1970 Cr LJ 519.
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abetment but there is no provision for punishment of such abetment, the abettor is to be
punished alongwith the offender for the original offence.6
That, Halsbury Classifies Homicide 7 states as follows, “the term homicide is used to
describe the killing of a human being by a human being. Such a killing may be lawful or it
may be unlawful and criminal. Unlawful homicide includes murder man slaughter, death
by dangerous driving, killing in pursuance of a suicide pact and infanticide.”
It is humbly contended that the accused did have the motive, knowledge and intention to kill
the dceased and there was abetment of murder [I.1] commitment of murder [I.2.].
I.1. The accused did have the motive, knowledge and intention to murder and there
was abement of murder.
It is humbly contended before this Learned Sessions Court that the accused A-1 and
A-2 did have the motive, knowledge and intention to commit murder [A] and there
was abetment to murder [B]. Therefore, they should be charged u/s 302 and Sec 109,
BPC.
[A]. Motive, knowledge and intention to commit murder.
An act is intentional if it exists in idea before it exists in fact, the idea realizing
itself in the fact because of the desire by which it is accompanied whereas,
motive is the reason or ground of an action. In other words, intention is an
operation of the will directing an overt act, while motive is the feeling that
prompts the operation of a will, the ulterior of the person willing.8
6 Kishori Lal v. State of M.P., (2007) 10 SCC 797: AIR 2007 SC 2457 7 HALSBURY’S LAW OF ENGLAND 4th Ed. Vol. II Para 1151 p.613. 8 ¶4, p. 51 Lexis Nexis Seventh Edition, Criminal Law Cases and Materials, K D Gaur.
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That on 1st August 2014 A1 had a heated argument with the deceased and his
wife regarding the non-payment of his college fees. The deceased accused A1
of being selfish and an insensitive brat; moreover, when A1 retorted back to
Devika, the deceased intervened saying that, A1 had no right to talk his wife in
such a disrespectful manner, which A1 felt wounded his self-respect. 9
Furthermore in his statements made to the Investigating Officer (herein after
refered to as I.O.) u/s 161 of the Cr.P.C. 1973, A1 said that, due to the
deceased’s drinking habits, he would often forget to transfer the money to
A1’s account regarding the college fee and the daily expenses, which had lead
to A1 being ridiculed in front of his classmates.10 This instance provides A1
with sufficient motive to carry out the offence u/s 302 of the I.P.C. 1860.11
That, in her statements made to the I.O. u/s 161 Cr.P.C. 1973, Devika
mentioned, how frequently A1 expressed his desire to be his own master.12
Moreover when the deceased informed A1 that, he had enough wealth to fend
for coming two generations, 13 A1’s ambition was fuelled with anger and
hatred which led him to feel that if the deceased had enough money why had
he put A1 on a stipulated amount for fees and expenses and obstructed his
desire to lead an opulent life.
On 2nd August when deceased asked A1 to transfer the amount for fees and
daily expenses from his (deceased’s) account, A1 transferred Rs. 2.5 lakhs/-
9 Case Details ¶18. 10 ¶1 Annexure-5. 11 Corroboratory Value u/s 157 Indian Evidence Act 1872. 12 ¶5 Annexure-5. 13 Case Details ¶ 15
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instead of Rs. 2.25 lakhs/- that he usually did.14 This deceitful act by A1
proves the malice in this thoughts and action.
That, A1 had the knowledge of all the medicines that were prescribed to him
by Dr. Choudhary. In his statements made to the Investigating officer
(hereinafter referred to as I.O.) A1 said that, the doctor had given him strict
instructions to check whether the deceased was taking his medicines
properly. Furthermore A1 also said that, when the deceased’s condition
worsened, Dr. Chaudhary had prescribed strong medicines for him. 15
Secondly, as per the Brief Facts of the case by the I.O., the deceased did not
like anyone’s interference regarding his medication, expect Mano’s. All these
things clearly state that Mano had the knowledge of whatever medication was
being administered to the deceased.
That, the expression “ordinary course of nature” means normal course or due
course and at best it may envisage a high probability of death.16An intention to
kill is not required in every case; knowledge that the natural and probable
consequences of an act would be death will suffice for a conviction under
section 302 of IPC.17 Knowledge is a strong word and imports a certainty and
not merely a probability. Intention is a subjective which is not facie present in
any conduct. In all cases circumstances surrounding the culpable homicide
lead to the inference that the accused intended to cause death.
That, all the above mentioned instances clearly establish the evil intention of
A1 beyond reasonable doubt.
14 Case details ¶ 20. 15 ¶1 Annexure – 5 16 Jabamalai Royappan In Re. 1981 LW (CR) 136 17 Santosh v State of M.P. AIR 1975 SC 654
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That, somewhere A2 expected that, when he had the money, he helped A1
financially whenever required, and hence he expected the same monetary help
from A1, if he were to get the Insurance money. A2 started linking his
pecuniary interest to the deceased’s death. Thus, when he came to know about
the Rs. 2 Crore Insurance Policy of which A1 would be the benefactor in case
of the deceased’s death. A2 saw a golden opportunity and started sowing the
seeds in A1’s mind as to how rich he would be, which he always wanted to be,
in case of the deceased’s death. Furthermore as stated earlier, A2 would
transfer money to his account from his father’s account, without his father ever
knowing about it.18 Such conduct on A2’s behalf clearly indicates that he was
an dishonest and a fraudulent person, as given u/s 25 of I.P.C. 1860, who could
go as far as to cheating his own father, when his own monetary interests were
involved and hence proves his intention beyond reasonable doubt.
[B]. Abetment to murder.
That, A2 was a medical student, who actually wanted to be a tech guru. His
technological skill was of that expertise, that he would hack into the
attendance bio-metric system and manipulate the attendance records and
moreover he would transfer money to his account from his father’s account,
without the latter ever knowing about it.19 Furthermore, in her statements
made to the I.O. u/s 161 Cr.P.C. 1973, stated in Annexure-5, Devika said that
it was A2’s company which made A1 want to be rich and his own master as
soon as possible, which resulted in such unfortunate events.
18 Case details ¶ 6 19 Case details ¶ 6
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That, A2 was a frequent visitor to A1’s house and he was no stranger to their
domestic tension. Being close friends, A2 knew that A1 was over ambitious
and that he would go to any lengths to be successful and wealthy. A2
harnessed this attribute of A1’s character and infected his mind with malicious
thoughts regarding the deceased’s money.
That, it is evident that on various previous occasions A1 had borrowed money
from A2 which helped to fulfil his desire to lead an opulent lifestyle.20 A2
exploited this weakness as a bait and made A1 dream of a life where he would
be his own master after he got the money from policy upon the death of the
deceased.
That, A2 knew about the Rs.2 Crore insurance policy in A1’s name. A2
through his seemingly harmless jokes would express to A1 as to how A1
would become rich if the deceased were to go on a long holiday.21 These
frequent small hints by A2, slowly and gradually manipulated A1’s mentality.
These facts clearly explain A2’s intent and role, which led A1 to eventually
murdering the deceased. The Supreme Court has held that the offence of
abetment is a separate and independent offence. A person abets the doing of a
thing by instigation, conspiracy or intentional aid. Where the offence is
committed in consequence of the abetment but there is no provision for
punishment of such abetment, the abettor is to be punished along with the
offender for the original offence. Abetment is constituted by (i) instigating a
person to commit an offence; (ii) engaging in a person to commit it; (iii)
20 Case Details ¶ 5 21 Case details ¶ 16
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intentionally aiding a person to commit it. The word ‘instigate’ means to goad
or urge forward, or to provoke, incite, urge or encourage to do an act.22
That, when the act abetted is committed as a consequence of abetment, the
abettor should be punished with the punishment provided for the main offence
with the help u/s 109 of the I.P.C. 1860. No separate sentence should be called
for the abettor.23 No distinction should be made in the quantum of sentence to
be awarded to the principal offender and that awarded to the abettor.24
That, Section-109 of the I.P.C. 1860, becomes applicable even if the abettor is
not present, when that offence abetted is committed provided that he has
instigated the commission of the offence or has engaged with one or more
other persons in a conspiracy to commit an offence and pursuant to that
conspiracy some act or illegal commission takes place or has intentionally
aided the commission of an offence by an act or illegal commission.25
I.2. Commitment of murder.
A-1 lost his parents at the age of 10 years and was then taken up by the deceased and
his family as their own. A-1 was very ambitious and wanted to become rich and
powerful.26 To fulfill his this desire the deceased made sure that A-1 went to the best
of college in India for his studies and motivated A-1 at everystep to do well in life.
But A-1 grew hungry. He always wanted to live a lavish lifestyle like his friends
which ultimately resulted in A-1 borrowing money.27 The debt had accumilated upto
more than a lakh rupees and A-1 had no way to pay the money and since A-2 had 22 R&D IPC 33rd edition reprint 2011. 23 State v Savithri 1976 Cr LJ 37 (Mad) 24 Ashok Nivruti Desai v State of Maharashtra 1995 1 Cr LJ 826 (Bom) 25 N.M.M.Y. Momin, 1971 Cr LJ 793 : AIR 1971 SC 885 26 Case Details ¶ 3 27 Case Details, ¶5.
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been forcing A-1 to repay the loan so A-1 had the intention to murder the deceased.
As the deceased had informed A-1, that he had purchased a policy of Rs. 2 Crore and
nominated A-1 as the sole benefactor.28 This insurance money was the soul method
fulfilling A-1’s motive of becoming rich. A-1 very well kept this in his mind, which
is evident from the fact that on many occasions as A-1 and A-2 discussed about how
rich A-1 would be, if the deceased had to go on a ‘long journey’. (Case details ¶ 16)
Upon the death of the deceased, A-1 would get Rs. 2 Crore overnight from the policy,
which would allow him to lead the life he always longed for.
That, on 3rd August, Karan experienced sudden chest and stomach pain. A1 wrote the
name of medicine Angispan on Dr. Chaudhary’s prescription and asked Raghav to get
it. A1 administered the drug via intravenous through a syringe, as Karan was in no
condition to swallow the tablet. Karan was quiet for half an hour but then suddenly
collapsed and died. 29 As mentioned before, A1 had the knowledge of all the
medicines that were prescribed by Dr. Choudhary to the deceased.
That, the fact that such knowledge, is accompanied by interference, whether death or
serious injury maybe caused or not, or even by a wish that it may not be causes,
doesn't make a difference.30 That, while administering Angispan to the deceased via
intravenous through the syringe, A1 injected air bubbles along with the drug to the
deceased. Intravenous is of two types push and infusion. The one through the syringe
is known as push intravenous. As per the Forensic Report, the deceased’s heart was
weak and arrhythmic and froth formation was found in the artery. 31 The froth
28 Case details ¶ 14 29 Case details ¶ 21 30 Public Prosecutor v Samasundaram (AIR 1959 Mad 323) 31 Annexure-4
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formation in the artery is due to the air embolism, which means blockade in the artery,
due to the presence of air bubbles in the same. Air bubbles can travel to the heart,
brain or lungs and cause a heart attack. Pulmonary embolism (Air embolism) is
caused by reason of the blockage in the lungs, a clot may form on any part of the body
and then travel upto the lungs.32 Pulmonary embolism is an extremely common and
highly lethal condition that is a leading cause of death in all age groups.33 Regarding
the results which are evident from the post mortem report and the forensic report, it
can be concluded that, Death was caused due to air embolism in the artery thereby
causing blockage of oxygen rich blood reaching the heart causing damage to the heart.
Such damage lead to arrhythmic heart beat which further led to a cardiac arrest. Thus,
here it can be assumed that A1 being a 3rd year medical student who had on multiple
occasions administered the same on alcoholics while he was attached at Altis
hospital,34 would have the basic knowledge as to what the repercussions could be, if
proper care is not taken while administering drugs via intravenous, and if while
performing such an activity, air embolism occurs, it can prove to be fatal. Knowledge
that the probable and natural consequence of an act would be death will suffice for a
conviction u/s 302 I.P.C. 1860.35
32 www.ncbi.nlm.nih.gov/pmc/articles/PMC3665124 (visited on 16th August, 2015) 33 Mohhamed Asif v State of Uttranchal, 2009 SC. 34 Case details ¶ 21 35 Santosh v. State of M.P. 1975 Cr LJ 602 (SC)
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ISSUE II
WHETHER THE ACCUSED ARE GUILTY OF FORGERY?
It is humbly submitted that the accused has committed the offence of Forgery under Section
465 of India Penal Code, 1860(IPC).
That, in Dickeins v. Gill, it was held that what constitutes the making of a document depends
essentially upon the nature and use it is intended for. The word making does not mean a mere
mechanical reproduction, but involves and conscious act of the maker.
That, the definition of forgery36 is very wide and the two essential elements to constitute
forgery are (i) there must be deceit or intention to deceive and (ii) actual or a possible injury
caused to a person or persons.37 Injury is something other than economic loss that is the
deprivation of property, whether movable or immovable or of money, it will include any
harm whatever caused to any person in mind, body, reputation. Even in those rare cases
where there is benefit or advantage to deceiver but no corresponding loss to the deceived, the
second condition is satisfied.
That, S.34-38 and 149 of I.P.C. 1860, deal with joint criminal liability. Joint liability is
created because intention or object is common to all the persons forming a group alleged to
commit a crime. hence, 34 has been enacted on principle of joint liablity in doing a criminal
act.
That, the provision of common intention38, is intended to meet a case, in which it may be
difficult to distinguish between acts of individual members of apart, who act in furtherance of
common intention of all, or to prove exactly what part was taken by each of them.39
36 S.463 of IPC,1860 37 Dr. Vimla v. Delhi Administration, AIR 1963 SC 1572 38 Sec. 34, BPC. 39 Seva Ram v. UP 2008. I Cr.L.J.802 SC; In State of M.P. v. Desc Raj 2004 Cr.L.J 1415 SC.
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That, in the present case the accused A1 and A2 had sufficient intention to deceive the
deceased by transferring small amounts of money through online transaction from the
deceased’s account without bringing it to the notice of the deceased40 regarding the debt
money which A1 had borrowed from A2 on various occasions to fulfil A1’s desire to lead an
opulent life. This activity was done by A2 with a small USB look-a-like inserted into
deceased’s computer which enabled him to decrypt the deceased’s online banking password
and transfer money into his account. The commission of such an act is fraudulent in nature.41
A person is said to do anything fraudulently if he does that thing with the intent to defraud
but not otherwise.42 The last 3 words ‘but not otherwise’ clearly indicate that intent must be
intent to defraud.
That, the essence of the offence of conspiracy is the fact of combination by agreement. The
agreement maybe express or implied, or in part express or in part implied. The conspiracy
arises and the offence is committed as soon as agreement is made and the offence continues
to be committed as long as the combination persists, that it is until the conspiratorial
agreement is terminated by the completion of its performance or by abandonment or
frustration or however it may be.43
That, the expression “intent to deceive” is different to “intent to defraud”. “Intent to defraud”
is established when the deception has as its aim some advantage or likelihood of advantage to
the person who causes the deceit or some kind of injury or the possibility of injury to another.
In this present case there is common intention to deceive the deceased through fraudulent
transaction.
40 Case details ¶ 16 41 Sec. 25, BPC. 42 Dr .S Dutt v. State of Uttar Pradesh AIR 1966 SC 523 43 Halsburys Laws of England, 4th edition, volume 11, P.44, para 58.
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That, on another occasion A1 transferred Rs. 2.5 lakhs/- instead of permitted amount by
deceased of Rs. 2.25 lakhs/- to his own account, in lieu of tuition fee and daily expenses.44
The deceased permitted A1 to transfer small amounts to his account, in case of emergencies,
but A1 was duly asked to inform on such transfers positively.45 An actual intention, to
convert an illegal doubtful claim, into an apparently legal one is dishonest and will amount to
forgery. According to Supreme Court “the word defraud includes an element of deceit. Deceit
is not an ingredient of the definition of a word dishonestly.” While it is an important
ingredient of the word “fraudulently” the former involves pecuniary or economic gain or a
loss while the latter by construction excludes that element. Further the juxtaposition of the
two expressions “dishonestly” and “fraudulently” used in the section 463 & 464, indicate
their close affinity and therefore the definition of one may give colour to the other. Thus, in
case of dishonestly there must be a gain to one party and wrongful loss to another party. In
case of fraudulently the act must be accompanied by deceitful means. In this present case, it
is evident that A1 acquired Rs. 25 thousand/- extra as a wrongful gain and acted dishonestly.
That, the direct proof of common intention is seldom available. In order to bring home charge
of common intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was a plan or meeting of mind of all accused persons with which
they were charged with the aid of S.34. The word act denotes a series of act as a single act46 ,
hence forming res gestae.47
44 Case details ¶ 20 45 Case details ¶ 15 46 Lalan v. State of Bihar 2003 Cr LJ 47 Case details ¶ 15
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The consensus of mind of persons, to bring about certain result, having criminal propensity
was an essential ingredient in S.34.48 Participation in criminal act in some manner was also
essential but physical presence at the scene of occurrence was not necessary.
That, where there is an intention to deceive by the means of deceit to obtain an advantage
there is fraud, if the document is fabricated with such intent it is forgery. The majority of the
judges of the madras high court in a full bench case seem to be of opinion that an intention to
secure benefit or advantage to the party deceiving by the means of deceit constitutes an
intention to defraud. A general intention to defraud without the intention of causing wrongful
gain or loss to another, will be sufficient to support a conviction.
48 Aizaz v UP, (1008) 4 Cr LJ 4374 (SC)
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ISSUE III
WHETHER THE ACCUSED ARE GUILTY UNDER COMPUTER RELATED
OFFENCES AND IDENTITY THEFT?
It is humbly contended that Manohar(A1) and Rahul (A2) are guilty of offences under Sec. 43, 66
and 66C of the Information Technology Act, 2005.
That, Kenny lays49 down in English Law; “Conspiracy first began as an agreement of
persons, who combined to carry on a legal proceeding, in vexatious or improper way.
However, in modern times, conspiracy has become a separate crime and is defined as an
agreement of two or more person, to affect any unlawful purposes, whether as an ultimate
aim or only as a means to it. This definition provides four points for notice
(i) Actus reus
(ii) Persons agree
(iii) Purpose agreed upon
(iv) Mens rea”
That, in a criminal conspiracy meeting of mind of two or more persons is sine quo non but
proving this by direct proof is not possible. It is not always possible to give affirmative
evidence, about the date of confirmation of criminal conspiracy, persons who took part in the
conspiracy, about the object and about the manner in which the object of conspiracy is to be
carried out. All this is necessarily, a matter of inference.50 Conspiracy can be inferred even
from the circumstances giving rise to conclusive or irresistible inference of an agreement
49 Kenny on outlines of criminal law, 19th edition, Para 448, P. 426 50 Mohhamed Arif v. State of NCT of Delhi (2011) 13 SCC 621; N.V. Subarao v. State (2013)2 SCC 162.
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between 2 or more persons to commit an offence.51 Hence conspiracy and its objective can be
inferred from the surrounding circumstances and the conduct of the accused.
That, there are 2 elements to be taken into consioderation; (i) Intention to cause wrongful loss
or damage or Knowledge of the likelihood of wrongful loss or damage; and (ii) Destruction
or deletion or alteration of information in a computer or diminishing value or utility of a
computer resource or injuriously affecting a computer resource. Damage for the purposes of
this section implies injury or deterioration caused by an unlawful act.
That, in a case where 2 or more persons are involved, either jointly or in a group, and it is not
possible to apportion criminal guilt of each of the participants, all the participants are held
liable jointly for the offence committed by any one or all the members of the group. This is
based on the contention that the presence of the accomplice gives encouragement, protection
and support, to the person actually engaged in the commission of an unlawful act. Since the
purpose is common, the responsibility and liability is joint.
That, in the instant case A2 along with A1 connected a USB look-a-like into the deceased’s
computer which enabled them to decrypt A1’s uncles online banking password and
transferred the money to A2’s account.52 This act was undertaken several times by A1 & A2.
Such an act can be classified under the definition of Hacking under Sec. 66 as A1 and A2 had
the intention and knowledge of the implications of such an act.
That, the technically expertised Hasmeet in Annexure 753 has concluded that, the Keylogger
software was found installed in the hard disk, which is used to track the keying pattern of a
user, to retrace the various sites visited by the user or trap passwords without the knowledge
of the user. It is a fact that A2 was a ‘tech-guru’ who had advanced knowledge of hacking the
51 M.S. Reddy v. State Inspector of Police, ACB Nellor 1993 CrLJ 558(AP) 52 Case details ¶ 16 53 Case Details.
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biometric attendance system of his college, as well as the bank account of his father and
transfer money without his knowledge.
That, on August 2, 2014, the deceased permitted A1 to transfer some money in to the latter’s
account to pay A1’s college fees. A1 then opened deceased’s laptop and found that the
password to his bank account in Bharat Bank was inappropriate, indicating that someone had
changed the password. A1 accessed one folder containing the details of the deceased’s
account and transferred Rs. 2.5 lakhs /- instead of Rs. 2.25 lakhs/- .that he usually did for his
fees and daily expenses.54 This malicious act of A1 amounts to fraud.
It is not necessary for a conspirator to be present at the scene of crime.55 It is also not
necessary that every conspirator much have taken part in each and every act done in
pursuance of a conspiracy.56
That, On reading Sec. 66 and 66C along with the facts of the present case it is clear that in
respect of tampering and hacking with computer system with the knowledge or intention if
such act is done, the same would be an offence. Hence, it is evident that A1 and A2 are to be
held guilty under the respective provisions.
54 Case details ¶ 20 55 Tamil Nadu v. Nalini 1999 Cr LJ 3124(SC) 56 State of Himachalv. Krishanlal Pradhan AIR 1987 SC 773.
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PRAYER
It is therefore, prayed that, your lordships may graciously be pleased In the light of
the issues raised, arguments advanced and authorities cited, the counsel on behalf
of Prosecution humbly submits that the Hon’ble Court may be pleased to adjudge
and declare that,
The accused persons (A-1 and A-2) are to be held guilty of the offences.
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
S/d_________________
PUBLIC PROSECUTOR