team code- taw 6 surana & surana national … singh and anr. v. state of punjab...

TEAM CODE- TAW 6

SURANA & 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.

MANOHAR LAL & RAHUL GULATI DEFENCE

FOR OFFENCES CHARGED UNDER

SECTION 302, 465 r/w 34, 120 B AND 109 OF BHARAT PENAL CODE, 1860

ALONGWITH SECTION 66 & 66C OF INFORMATION TECHNOLOGY ACT, 2000

MEMORANDUM ON BEHALF OF THE PROSECUTION

--STATE OF XANADU--

COUNSEL FOR THE PROSECUTION

2 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT- 2015

MEMORANDUM FOR THE PROSECUTION

TABLE OF CONTENTS

LIST OF ABBREVIATIONS...................................................................................................... 4

INDEX OF AUTHORITIES.................................................................................................. ......5

STATEMENT OF JURISDICTION................................................................................ ……...9

STATEMENT OF FACTS......................................................................................................... 10

STATEMENT OF CHARGES.................................................................................................. 11

SUMMARY OF ARGUMENTS............................................................................................... 12

ARGUMENTS ADVANCED..................................................................................................... 14

[I] MANOHAR AND RAHUL ARE GUILTY FOR OFFENCE OF MURDER…………………………...….14

A. THERE WAS AN INTENTION TO CAUSE THE DEATH OF KARAN…………………………….14

B. THE ACCUSED HAD MOTIVE TO KILL……………………………………………………….…....17

C. THE INJURY CAUSED WAS SUFFICIENT IN ORDINARY COURSE OF NATURE TO CAUSE

DEATH……………………………………………………………………………………………………..18

[II] MANOHAR AND RAHUL ARE JOINTLY LIABLE FOR FORGERY WITH COMMON

INTENTION……………………………………………………………………………………………………..….19

A. THERE MUST BE MAKING OF FALSE DOCUMENT……………………………………………...20

B. INTENTION TO CAUSE DAMAGE OR INJURY TO ANY PERSON……………………………….20

C. THE ACT SHOULD BE PRE-ARRANGED PLAN……………………………………………………21

D. ACCUSED SHOULD ACT IN CONCERT PURSUANT TO THE PLAN…………………………….22

[III] MANOHAR AND RAHUL ARE LIABLE FOR THE OFFENCE OF CRIMINAL CONSPIRACY AND

RAHUL IS LIABLE FOR ABETMENT TO MURDER……………………………………………………...….22

A. THERE WAS AN AGREEMENT BETWEEN DW-1 & DW-2………………………………………..23

B. INSTIGATION U/S.109……………………………………………………………………………….25

C. OCULAR AND MEDICAL EVIDENCE……………………………………………………………..26



[IV] MANOHAR AND RAHUL ARE LIABLE U/S 66 AND 66C OF INFORMATION TECHNOLOGY

ACT, 2000………………………………………………………………………………………………………….26

A. OFFENCE OF HACKING…………………………………………………………………………….26

B. IDENTITY THEFT…………………………………………………………………………………….29

PRAYER FOR RELIEF………………………………………………………………………32



LIST OF ABBREVIATIONS

AIR All India Reporter

DW Defence Witness

CrPC Code Of Criminal Procedure

PW Prosecution Witness

BPC Bharat Penal Code, 1860

ITA Information Technology Act, 2000

S. Section

SC Supreme Court

u/s. Under Section

CrLJ Criminal Law Journal

SCC Supreme Court Cases

Bom LR Bombay Law Review

A.P. Andhra Pradesh

All Allahabad



INDEX OF AUTHORITIES

TABLE OF CASES: S. NO. Case Title Citation Page No. 1. State of A.P. v. R. Punnaya, AIR 1977 SC 45 13

2. James v. State of Kerala (1995) 1 Cr LJ 55 Kr 13

3. Arjun v. State of Rajasthan AIR 1994 SC 2507 13

4. Kesar Singh v. State of Haryana (2008) 15 SCC 753 13

5. Santosh v. State of Madhya Pradesh 1975 Cri LJ 602 (SC) 15

6. Laxman v. State of Maharashtra AIR 1974 SC 1803 15

7. Md. Idrish v. State 2004 Cr LJ 1724 (Raj) 15

8. Md. Sharif And Anr. v. Rex AIR 1950 All 380 15

9. Badri v. State of U.P. AIR 19953 All 189 15

10. Dibia v. State of U.P. AIR 1953 All 373 15

11. State of Maharashtra v. Bhairu Sattu Berad AIR 1956 Bom 609 15

12. Son Lal v State of Uttar Pradesh AIR 1978 SC 1142 15

13. Chhotka v State of WB AIR 1958 Cal 482 15

14. State v Dinakar Bandu (1969) 72 Bom LR 905 15

15. Jaspal Singh and Anr. V. State of Punjab MANU/PH/1026/2005 17

16. Mohd Khalid v. State of West Bengal (2002) 7 SCC 334 19

17. ChamanLal v. State of Punjab (2009) 11 SCC 721 19

18. Esher Singh v. State of A.P AIR 2004 SC 3030 19

19. Bhagwandas AIR 1974 SC 898 19

20. State of M.P v. SheetlaSahai (2009) 3 SCC (Cri) 901 20



21. Amiruddin (1922) 24 Bom LR 534 , 542 20

22. Kulwant Singh v. State of Punjab (2007) 15 SC 670 20

23. Umesh Singh vs. State of Bihar 2013(4) SCC 360 20

BOOKS:

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

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

1989)

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

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

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

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

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

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

9. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

10. Ratanlal and Dhirajlal, The Indian Penal Code, 34th Ed. (2013)

11. Ratanlal and Dhirajlal, The Law of Evidence, 34th Ed. (2013)

12. Vakul Sharma, Information Technology Law & Practice.(2004)Ed.



13. S.R. Bhansali, Commentary on The Information Technology Act, 2nd Ed. (2012)

14. Dr. H.S.Gour, Penal Law Of India, 11th Ed. Reprint(2004), Secs. 1 to 120.

15. Dr. H.S.Gour, Penal Law Of India, 11th Ed. Reprint(2004), Secs. 363 to End

16. Nandan Kamath, Law Relating to Computers, Internet and E- Commerce, 2nd Ed.

17. Dr. Gupta & Agarwal, Cyber Laws, 1st Ed. (2008)

18. Chris Reed, Internet Law, 2nd Ed

19. K. I. Vibhute, P.S.A. Pillai’s Criminal Law, 12th Ed.

20. Prof. S.N. Mishra, Indian Penal Code, 13th Ed.

WEBSITES:

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx 4. www.scconline.in 5. www.manupatra.com 6. www.indiankanoon.org 7. www.cdjlawjournal.com 8. www.westlawindia.com



STATUTES: 1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)

3. The Indian Penal Code, 1860 (Act 45 of 1860) 4. The Information Technology Act, 2000 (Act 21 of 2000)



STATEMENT OF JURISDICTION

The Prosecution invokes the jurisdiction of this Hon’ble Court U/s. 177 read with s. 209 of the

Code of Criminal Procedure, 1973.

Section 177. Ordinary place of inquiry and trial.- “Every offence shall ordinarily be inquired

into and tried by a Court within whose local jurisdiction it was committed”.

Read with

Section 209. Commitment of case to Court of Session when offence is triable exclusively by

it.- “When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by

the Court of Session, he shall-

a) commit, after complying with the provisions of Section 207 or Section 208, as the case

may be, the case to the Court of Session, and subject to the provision of this code relating

to bail, remand the accused to custody until such commitment has been made;

b) subject to the provisions of this code relating to bail, remand the accused to custody

during, and until the conclusion of, the trial;

c) send to that Court the record of the case and the documents and articles, if any, which

are to be produced in evidence;

d) notify the Public Prosecutor of the commitment of the case to the Court of Session.”

All of which is respectfully submitted



STATEMENT OF FACTS

[A] BACKGROUND:

Manohar was taken care by his uncle, Karan after his parents’ death. He got admission in TMC

Medical College in 2013 and there, he befriended Rahul. Karan took a policy of 2 crore and

appointed Mano as benefactor without anyone’s knowledge.

[B] EVENTS THAT UNFOLDED AND LED TO THE COMMISSION OF ALLEGED

CRIMES:

May 21, 2014: Karan informed Mano about the policy in his name. Rahul connected a small

USB look-a-like in Karan’s computer and transferred money in his account.

July 4, 2014: Karan’s doctor, Mr. Choudhary prescribed strong medications to him. College

authorities asked Mano to pay his fee before Aug 1, 2014.

Aug 2, 2014: Karan asked Mano to transfer his college fee to his account. Due to incorrect

password, Mano could not do so. Therefore, he opened a folder contained Karan’s bank account

details and transferred amount of Rs. 2.50 lakhs including his daily expenses instead of 2.25

lakhs .

Aug 3, 2014: Karan’s condition worsened; therefore, Mano administered Angispan through

syringe to Karan. After half an hour, Karan developed fits and collapsed.

[C] DISCOVERY OF INSURANCE, PRESCRIPTION, AND THE TRIAL:

Aug 3, 2014: Devika found policy under Mano’s name and some bank passbooks. Devika filed

an FIR against Manohar and Rahul.

Aug 4, 2014: It was found out that paper on which Mano wrote the medicines was Dr.

Choudhary’s prescription. Manohar and Rahul were arrested. Charges accordingly framed under

Bharat Penal Code.



STATEMENT OF CHARGES

The Prosecution, State of Xanadu, most respectfully ask this Court of Sessions at Durg to

consider the following charges as framed by it in accordance with Chapter XVII of Code of

Criminal Procedure, 1973:-

CHARGE I

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 302 OF BHARAT PENAL

CODE FOR THE OFFENCE OF MURDER.

CHARGE II

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 465 r/w 34 OF BHARAT

PENAL CODE FOR COMMITTING FORGERY WITH COMMON INTENTION.

CHARGE III

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 120B OF BHARAT PENAL

CODE FOR OFFENCE OF CRIMINAL CONSPIRACY AND LATTER HAS BEEN

CHARGED U/S 109 FOR ABETMENT TO COMMIT MURDER.

CHARGE IV

MANOHAR AND RAHUL HAVE BEEN CHARGED U/S 66 AND 66C OF

INFORMATION TECHNOLOGY ACT, 2000 FOR HACKING THE ACCOUNT OF

KARAN AND FOR IDENTITY THEFT.



SUMMARY OF ARGUMENTS

[I] MANOHAR AND RAHUL ARE GUILTY FOR OFFENCE OF MURDER.

It is humbly submitted before this Hon’ble Court that Manohar and Rahul had the intention to

cause the death of Karan since Manohar was heavily influenced by the rich lifestyle of his

friends and when he came to the knowledge of the 2 crore insurance policy in his name, mens

rea arose in his mind. Also, his act of administering Angispan in liquid form attracts Sec. 300(3)

of BPC since the cause of death is cardiac arrest resulting from air embolism. Therefore, they

should be held guilty of murder u/s 302 of BPC.

[II] MANOHAR AND RAHUL ARE JOINTLY LIABLE FOR FORGERY WITH

COMMON INTENTION.

It is humbly submitted before this Hon’ble Court that pre- planned acts of Manohar and Rahul

cannot go unpunished. They are jointly liable for forging Dr. Choudhary’s prescription and

thereby obtaining the medicine of Angispan which is not commonly available without

prescription to execute their ulterior motive i.e. to recover the amount of insurance policies after

the death of Karan.



[III] MANOHAR AND RAHUL ARE LIABLE FOR THE OFFENCE OF CRIMINAL

CONSPIRACY AND RAHUL IS LIABLE FOR ABETMENT TO MURDER.

It is humbly submitted before this Hon’ble Court that there was an agreement between the

accused u/s. 120A of BPC as the conduct of Rahul establish that he is a co- conspirer and acts

and conduct of Manohar are indicative that he has a key role in conspiracy and satisfies all the

ingredients of the offence.

The conspiracy is neatly planned and executed one. They are jointly liable for the acts committed

owing to the clear chain of events that has been established by the Report of the Investigating

Officer.

Further, Rahul has abetted the offence of murder as it can be inferred from the acts and conducts

of Rahul at various instances, though he wasn’t present at the scene of crime.

[IV] MANOHAR AND RAHUL ARE LIABLE U/S 66 AND 66C OF INFORMATION

TECHNOLOGY ACT, 2000.

It is humbly submitted before this Hon’ble Court that Manohar and Rahul are liable u/s 66 and

66C for altering the account of Karan by gaining unauthorized access and de-crypting the

passwords of his bank account thereby causing wrongful loss to Karan and for committing the

offence of Identity Theft by using a key-logger.



ARGUMENTS ADVANCED

[I] MANOHAR AND RAHUL ARE GUILTY FOR OFFENCE OF MURDER

It is humbly contended before this Hon’ble Court that Manohar (hereinafter referred as DW

11) and Rahul (hereinafter referred as DW 22) are guilty of offence u/s 302 of Bharat Penal

Code, 1860 (hereinafter referred as BPC). In the present instance, the Hon’ble Court of Sessions

has framed the charges based on the Final Report3 submitted by Inspector Aamir Ali,

Investigating Officer (hereinafter referred as PW 64) u/s 1735 of Code of Criminal Procedure(

hereinafter referred as CrPC).

Considering the elements of Sec. 300(1) and 300(3) of BPC, it is evident that DW 1 and

DW2 cause the death of Karan.

[A] THERE WAS AN INTENTION TO CAUSE THE DEATH OF KARAN:

Murder is the gravest form of culpable homicide.6 Murder is defined u/s. 300 of BPC as:

300(1) - ‘Act by which the death is caused is done with the intention of causing death.’

The word ‘act’ includes the omission as well. Any omission by which the death is caused will

be punishable as if the death is caused directly by an act.7 Intention to cause death may be 1 Moot Proposition, List of Witnesses, p. 6

2 Ibid

3 Moot Proposition, Annexure-6, Report of PW 11, p.16

4 Moot Proposition, List of witnesses, p. 6

5 Section 173- Report of Police Officer on completion of investigation, Code of Criminal Procedure, 1973

6 State of A.P. v. R. Punnaya, AIR 1977 SC 45



revealed by the whole circumstances of the story.8 Intention connotes a conscious state in which

mental faculties are roused into activity and summoned into action for the deliberate purpose of

being directed towards a particular and specified act.Intention has been defined as the fixed

direction of the mind to a particular object, or a termination to act in a particular manner.So, the

intention of the person can be gathered from the action of the person.9 Thus, when DW 1

administered Angispan through syringe to Karan due to which there was drug cross- reaction and

caused the death of Karan, then it is very clear that he has an intention to kill Karan, because the

cause and effect of the act are very clear. It is evident that the cause of death is drug cross-

reaction and effect of it is to cause instant death.10 Intention to cause death can be inferred from

the act or illegal omission.

Further, the intention of DW 1 and DW 2 can be inferred from the following instances:

[A.1.] Manohar was influenced by the rich lifestyle of his friends-

DW 1 took admission in TMC Medical College in year 2011. His college friends were

affluent and ambitious. He was influenced by ideas, goals and lifestyle of his friends and always

wanted to become like them. Intention is related with motive.There must be reasons which

provokes or motivates a man to commit the serious crime of murder. Since, the ultimate motive

of Manohar was to become rich and when Karan told him about the policy of Rs. 2 crore, mens

rea arose in his mind it motivated him to commit the offence of murder.

[A.2.] Rahul had an eye over the property which Mano would get after Karan’s death-

7 Arjun v. State of Rajasthan, AIR 1994 SC 2507

8 James v. State of Kerala, (1995) 1 Cr LJ 55 Kr

9 Kesar Singh v. State of Haryana, (2008) 15 SCC 753

10 Moot Proposition, Annexure- 3, Post Mortem Report, p. 9



. As the motive is a state of mind, intention is also a state of mind and it can be proved only by

its external manifestations.It is presumed that every sane person intends the result that his action

normally produces and if a person hits another on a vulnerable part of the body, and death occurs

as a result, the intention of the accused can be no other than to take the life of the victim and the

offence committed amounts to murder.11 Moreover, the intention to kill is not required in every

case, mere knowledge that natural and probable consequences of an act would be death will

suffice for a conviction under s. 302 of IPC.12 The intention to kill can be inferred from the

murder and nature of the injuries caused to the victim.13

Causing a serious injury on body of the deceased with weapon must necessarily lead to the

inference that the accused intended to cause death of the victim, and it answers to section 300

and is murder.14Given that the DW 1 administered Angispan into Karan’s body, and being a

medical student, he also interned in the Altis hospital, it is assumed that he had basic knowledge

of use of syringe, but still air embolism caused. Therefore, it is logical to conclude that he was

having an intention to kill Karan.

[B] THE ACCUSED HAD MOTIVE TO KILL:

Sec 8, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or

preparation for any fact in issue or relevant fact. Thus, previous acts and communication between

11 5 (1951) 3 Pepsu LR 635

12 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

13 Laxman v. State of Maharashtra, AIR 1974 SC 1803

14 Md. Idrish v. State, 2004 Cr LJ 1724 (Raj); Md. Sharif And Anr. v. Rex, AIR 1950 All 380; Badri v. State of U.P.,

AIR 19953 All 189; Dibia v. State of U.P., AIR 1953 All 373, State of Maharashtra v. Bhairu Sattu Berad, AIR

1956 Bom 609



parties are admitted to show motive.15 It is further pertinent to note that if there is motive in

doing an act, then the adequacy of that motive is not in all cases necessary. Heinous offences

have been committed for very slight motive.16

He also de-crypted information from bank account of deceased and came to know about the

policies in DW 1’s name. Therefore, it is evident that he had an ulterior motive of obtaining

money from those policies which was possible only after Karan’s death.

[C] THE INJURY CAUSED WAS SUFFICIENT IN ORDINARY COURSE OF NATURE

TO CAUSE DEATH-

Cause of death, in the Forensic Report17, was due to air embolism, leading to cardiac arrest,

which was sufficient to cause death in ordinary course of nature.18 Embolism19, is blocking of an

artery by a mass of material preventing the flow of blood. Air embolism is very rare in cases

where IV is given by medical professional. Mano being a III year medical student should be

aware of this fact and in plea of emergency situation, deliberately caused the death of Karan.

[II] MANOHAR AND RAHUL ARE JOINTLY LIABLE FOR FORGERY WITH

COMMON INTENTION.

15 Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482

16 State v Dinakar Bandu (1969) 72 Bom LR 905

17 Annexure- 4, p. 11

18 Jaspal Singh and Anr. V. State of Punjab, MANU/PH/1026/2005

19 as per Medical Dictionary by P.H. Collin



It is humbly submitted before this Hon’ble Court that accused DW 1 and DW 2 are liable for

offence of Forgery with common intention. Considering the elements of S.465 read with S.34 of

BPC, it is evident that the following will form the basis for holding the Accused jointly liable for

the charge of forgery read with common intention as framed by the Hon’ble Court of Sessions at

Durg, Xanadu :

i. The making of a false document or a part of it ;

ii. Such making should be with intent

iii. There must be a common intention in the sense of a pre-arranged plan between the two;

iv. The person sought to be so held liable had participated in some manner in the act

constituting the offence.20

The making of a false document is a sine qua non for committing the offence of forgery.

What is necessary is that the document must have been executed with the intention of causing it

to be believed that it was inter alia made by authority of a person by whom or by whose

authority he knows that it was not made.It is humbly contended that the evidence on record is

more than sufficient to prove that the Accused have committed forgery with common intention.

There must be making of a false document [A] with an intention to cause damage or injury to

either public or any person [B] the act should be a pre-arranged plan[C] and the accused should

be acting in a concert pursuant to the plan[D]

[A] There must be making of a false document- The words, “forgery” consists of making a

false document with the intention of causing damage or injury to any person. 21 Accordingly, a

false document is made by DW-1 which was a prescription of Dr. Choudhary, as being the

20 Hardeep Singh v. State of Haryana (2008)12 SCC 39 21 Ramesh Chandra Das v. Premlata Patra, (1988) 3 Crimes 87 (Ori.)



medical student he had no right to sign or affix his signature or even prescribe any medicines on

it without the authority.

[B] Intention to cause damage or injury to either public or any person- What constitutes a

false document, or part of a document, is not the writing of any number of words which in

themselves are innocent, but the affixing the seal or signature of some person to the document or

part of the document knowing that the seal or signature is not his, and that he gave no authority

to affix it. In other words, falsity consists in the document or part of a document being signed or

sealed with the name or seal of a person who did not in fact sign or seal it.22 DW-1 had intention

by the way of forgery to cause damage to Karan as well as Dr. Choudhary as he was acting the

false role of a doctor while prescribing the medicine

[C] The act should be a pre-arranged plan- Common intention requires a prior consent or a

pre-planning. Such common intention should be anterior in point of time to the commission of

crime, but may also develop at the instant when such crime is committed. In most cases, it has to

be inferred from the acts or conduct of the accused and such other relevant circumstances.23 It

requires a pre-arranged plan, because before a man can be vicariously convicted for the criminal

act of another, the act must have been done in furtherance of the common intention of them.24

The use of the words “in furtherance” suggests that the section is applicable also where the act

actually done is not exactly the act jointly intended by the conspirators to be done, otherwise, the

words would not be needed at all. The common intention can be inferred from the malafide

22Pramatha Nath v. State of West Bengal, 52 Cr LJ 1480.

23 State of Mysore v. Venkappasetty, 1973 Cr L.J. 1568 at p. 1569

24 Mehbub Shah v. Emperor A.I.R 1945 P.C. 118 at pp.120-21



conduct of DW-1 & DW-2 in many instances of the illegal transactions of money from the

account of Karan.

[D] The accused should be acting in a concert pursuant to the plan- The dominant feature of

Section 34 is the element of participation is actions. This participation need not in all cases be by

physical presence. Common intention implies acting in concert.25

The accused had every reason and purpose to commit the offence as Dw-1 was pressurized

by Dw-2 to return the debts and the mens rea is formed when DW-1 & DW-2 gets the knowledge

about the insurance policies. And thus, the offence of murder, forgery and identity theft was

caused in furtherance of this plan.

[III] MANOHAR AND RAHUL ARE LIABLE FOR THE OFFENCE OF CRIMINAL

CONSPIRACY AND RAHUL IS LIABLE FOR ABETMENT TO MURDER.

It is humbly contended before this Hon’ble Court that DW-1 and DW-2 are guilty of offence

u/s 120 B of BPC and DW 2 is guilty of offence u/s. 109 of BPC.

Considering the elements of S. 107& 120A, it is evident that the following cause the basis for

charging the Accused jointly liable for Criminal Conspiracy and DW-2 for abetment:-

i. Instigating a person to commit an offence; or

ii. Engaging in a conspiracy to commit it; or

iii. Intentionally aiding a person to commit it.

25 Hethuba v. state of Gujarat, A.I.R. 1970 S.C. 1266 at p. 1269



iv. There should be two or more persons;

v. There should be an agreement between themselves;

vi. The agreement must be to do or cause to be done:

a. an illegal act (or) a legal act by illegal means;

The offence of abetment by instigation depends upon the intention of the person who abets

and not upon the act which is done by the person who has abetted.

It is humbly contended that the evidence on record is more than sufficient to prove that the

Accused have committed Abetment and Criminal Conspiracy. There was a prior meeting of

minds between DW-1 & DW-2 [A] for the doing of an illegal act [B] Furthermore, a criminal act

was committed by DW-1 [C] in furtherance of that abetment and conspiracy. There was also an

instigation by DW-2 on various occasions [D] The corroborated ocular and the medical evidence

shows that the death of the deceased is caused due to the negligence of the Accused.

[A] THERE WAS AN AGREEMENT BETWEEN DW-1 & DW-2

‘Agreement’ is the rock bottom of conspiracy. It is sine qua non for constituting the offence

of criminal conspiracy. Its essence is the unlawful combination. It may be express or implied. It

is complete when the combination is framed to commit an offence. It is immaterial whether

anything has been done in pursuance of the unlawful agreement.26

For the offence of conspiracy some kind of physical manifestation of agreement is required to be

established. The express agreement need not be proved. The evidence as to the transmission of

thoughts sharing the unlawful act is sufficient27. Rahul and Mano being best friends had common

26Mohd Khalid v. State of West Bengal, (2002) 7 SCC 334; ChamanLal v. State of Punjab, (2009) 11 SCC 721

27 Esher Singh v. State of A.P , (2204) 11 SCC 585 : AIR 2004 SC 3030



interest in technology and its use. Rahul was a tech- guru and hacker and DW 1 was interested to

learn from DW 2 about such techniques. As stated by the librarian, both of them been medical

student always issued tech-related magazines from the library.

[A.1.] AGREEMENT FOR THE PURPOSE OF DOING AN ILLEGAL ACT

Since conspiracy is often hatched up in utmost secrecy it is mostly impossible to prove

conspiracy by direct evidence. It has, oftener than not, to be inferred from the acts, statements

and conduct of the parties to the conspiracy.28

What is necessary is not thoughts, which may even be criminal in character, often involuntary,

but offence would be said to have been committed there under only when that take concrete

shape of an agreement to do or cause to be done an illegal act or an act which although not illegal

by illegal means and then if nothing further is done the agreement would give rise to a criminal

conspiracy.29

It is not necessary that all the conspirators should participate from the inception to the end

of the conspiracy; some may join the conspiracy after the time when such intention was first

entertained by any one of them and some others may quit from the conspiracy.

[A.2.] ILLEGAL ACT COMMITTED

By virtue of S. 43 of the BPC, the term ‘illegal’ act30encompasses everything:

a) which is an offence31

b) which is prohibited by law

28Bhagwandas, 1974 CrLJ 751 : AIR 1974 SC 898

29 State of M.P v. SheetlaSahai, (2009) 8 SCC 617: 2009 Cri LJ 4436 : (2009) 3 SCC (Cri) 901

30‘Act’ denotes a single as well as a series of acts (vide s. 33, Barata Penal Code, 1860)

31s. 40, Barata Penal Code, 1860



DW 1 had taken debts from DW 2 and was pressurized by him to return money as soon as

possible. One night when DW 2 came for a sleep over to DW 1 place, they connected a key-

logger into Karan’s Computer thus de-crypting his online banking password and transferring

money to his account. This happened on several occasions. Also on 2nd Aug, DW 1 had

transferred Rs. 2.50 lakh to his account contrary to Rs. 2.25 lakh which Karan used to transfer.

[B] INSTIGATION U/S.109

A person is said to ‘instigate’ another to an act, when he actively suggests or stimulates him

to the act by any means of language, direct or indirect, whether it takes the form of express

solicitation, or of hints, insinuation or encouragement.32 To constitute “instigation”, a person

who instigates another has to provoke, incite, urge or encourage the doing of the act by the other.

For constituting offence of abetment, intentional and active participation by the abettor is

necessary. 33

DW 1 owed DW 2 some debts. Due to failure of DW 1 to return the money, DW 2 told DW 1

of his hacking tricks. DW 2 helped DW 1 in hacking Karan’s online banking account and

transferring money to his account. DW 2 was aware of the insurance policies in name of DW 1

and reminded him of how rich he would be had his uncle gone on a “long journey”.

[C] OCULAR AND MEDICAL EVIDENCE –

Where there is a contradiction between medical evidence and ocular evidence, the

position of law can be crystallised to the effect that though the ocular testimony of a witness has

greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular

testimony improbable, that becomes a relevant factor in the process of the evaluation of

32Amiruddin , (1922) 24 Bom LR 534 , 542

33Kulwant Singh v. State of Punjab, (2007) 15 SC 670



evidence. However, where the medical evidence goes so far that it completely rules out all

possibility of the ocular evidence being true, the ocular evidence may be disbelieved.34

DW 1 was an intelligent III year medical student. DW 1 was well aware of the effects of

various medicines and medications of Karan. The forensic report stated the cause of death due to

air embolism resulting in cardiac arrest. But, it should be noted that air embolism are very rare

where IV is given by medical professional.

[IV] MANOHAR AND RAHUL ARE LIABLE U/S 66 AND 66C OF INFORMATION

TECHNOLOGY ACT, 2000.

It is humbly submitted before this Hon’ble Court that Manohar and Rahul are guilty of

offence under section 66 and 66C of The Information Technology Act 2000 (hereinafter referred

to as ITA 2000).

[A] Offence of Hacking: Section 66of ITA 2000 states:

Computer related offences - If any person, dishonestly or fraudulently, does any act referred to

in section 43, he shall be punishable with imprisonment for a term which may extend to three

years or with fine which may extend to five lakh rupees or with both.

For the purposes of this section - (a) the word "dishonestly" shall have the meaning

assigned to it in section 24 of the BPC (45 of 1860); (b) the word "fraudulently" shall have the

meaning assigned to it in section 25 of the BPC (45 of 1860). Thus it says that if any person

34Umesh Singh vs. State of Bihar, 2013(4) SCC 360



dishonestly or fraudently does any act referred to in section 43 it will come under the category of

a criminal act.

[A.1.] Intention of committing the offence: It is to be noted that the essential ingredients

of S. 43 to become an offence u/s 66 of ITA 2000 are:

1) Intention to cause wrongful loss or damage OR Knowledge of likelihood of wrongful loss or

damage; and 2) Destruction or deletion or alteration of information in computer or diminishing

value or utility of computer resource or injuriously affecting computer resource.

Here “wrongful loss” is the loss by unlawful means. Damage for purpose of this section

implies injury or deterioration caused by unlawful act. Intent means fixed determination to act in

particular manner. To cause means to make something happen. Cause can be direct or indirect.

Knowingly implies willfully doing something.

Section 24 of BPC defines “Dishonestly” — Whoever does anything with the intention of

causing wrongful gain to one person or wrongful loss to another person, is said to do that thing

“dishonestly”.

Section 23 of BPC defines “Wrongful gain” — “Wrongful gain” is gain by unlawful means

of property to which the person gaining is not legally entitled. “Wrongful loss”— “Wrongful

loss” is the loss by unlawful means of property to which the person losing it is legally entitled..

Section 25 of BPC defines “Fraudulently” — A person is said to do a thing fraudulently if he

does that thing with intent to defraud.

When a person secures access to the computer of any person with the intention of causing

wrongful gain to one and wrongful loss to another or with an intention to defraud, he is said to



have committed an offence under this act. Such offence amounts to “hacking” in the computer

language. In determining the guilt of the accused, the requisite intention or knowledge on part of

accused must be established. Intention and knowledge are internal and invisible acts of mind and

their actual existence cannot be demonstrated except by their external and visible

manifestations.35 Hacking as covered by Section 66 involves acts where data or information is

stolen from another computer by technologically advanced means where the fact of theft of

information might not even be known to the victim.

[A.2.] Intention can be inferred from following circumstances:

Rahul was a tech guru and he could hack into the attendance bio-metric system and

manipulate attendance records. Rahul could also transfer money from his father’s bank account

to his own without the latter knowing. Such was Rahul’s skill. 36 Manohar was always eager to

learn from Rahul what could be done through technology. No one except Manohar was aware of

the fact that Karan had nominated Mano as benefactor to his 2 crore insurance policy after his

death. One night, Rahul connected a keylogger into Karan’s computer which enabled them to

decrypt his uncle’s online banking password and transferred money to his account. This

happened on few occasions. Rahul was also aware of the insurance policies that were in name of

Manohar. On 2 August, 2014 Manohar transferred Rs. 2.50 lakhs to his account towards college

fees and pocket expenses contrary to the normal amount of Rs. 2.25 lakhs which Karan

transferred.

[B] IDENTITY THEFT:

Section 66C of ITA 2000 states: 35 Best on Evidence, section 433; Ratanlal and dhirajlal’s law of crimes vol 2, p. 1281 36 Moot proposition, p. 2 point 6



Punishment for identity theft - Whoever, fraudulently or dishonestly make use of the

electronic signature, password or any other unique identification feature of any other person;

Password is one of the security measures assigned to protect the privacy of the legitimate

user. The right to privacy refers to the specific right of an individual to control the collection, use

and disclosure of personal information. The scope of the crime of identity theft is wide in its

sweep.

It broadly includes two steps:

a. Wrongfully collecting personal identification information (PII) of other people.

b. Wrongfully using the PII collected above.

[B.1.] Instances of Identity Theft:

Key logger software was installed in the hard disk of Karan’s laptop that was seized by the

investigating officer for examination purpose. A key logger is a type of surveillance software

(considered to be either software or spyware) that has the capability to record every

keystroke you make to a log file, usually encrypted. A key logger recorder can record instant

messages, e-mail, and any information you type at any time using your keyboard. This key

logger was maliciously used by the accused to to steal password and information of Karan to

transfer money to his account. Such transactions took place on several occasions.

Stages of identity theft:

1) Acquisition of the identity: It involves the acquisition of the identity through theft,

hacking, redirecting or intercepting mail or by purchasing identifying information on the

internet.

2) Use of the identity: After the acquisition of the identity, the fraudster may use the identity

to commit another crime resulting in financial gain to him.



3) Discovery of the theft: Many cases of misuse of credit cards are discovered quickly,

however in some cases the victim of an identity theft may not even know how or when

their identity was stolen. Study reveals that the longer it takes to discover the theft, the

greater the loss incurred by the victim.

In this case the acquisition of identity of Karan was stolen by the accused through a key

logger and money was transferred from Karan’s account to theirs without the formers

knowledge.

A computer password is usually encrypted and stored on the computer. Therefore the act of

changing a password would make a person liable under Section 43 or Section 66 of the Act.

Stealing user confidential data serves for many illegal purposes, such as identify theft, banking

and credit card frauds, software and services theft just to name a few. This is achieved by key

logging, which is the eavesdropping, harvesting and leakage of user issued keystrokes causing

huge financial losses. Therefore for the above pleaded reasons the accused i.e. Manohar and

Rahul be held guilty for the offence under section 66 and 66c of ITA 2000.



PRAYER FOR RELIEF

Wherefore in the light of the facts of the case, arguments advanced and authorities cited,

Counsels for the Prosecution humbly pray and implore before this Hon’ble Court of Sessions:-

That it may be pleased to convict (u/s 235 of the CrPC):

1. Manohar and Rahul for the offence of murder of Karan u/s 302 of BPC.

2. Manohar and Rahul for committing forgery with common intention of Dr. Choudhary’s

prescription u/s 465 of BPC.

3. Manohar and Rahul for the offence of criminal conspiracy u/s 120B of BPC.

4. Rahul for the offence of abetment of murder of Karan u/s 109 of BPC.

5. Manohar and Rahul u/s 66 and 66C of IT Act for hacking and for Identity theft.

The Court may make any other such order as it may deem fit in terms of justice, equity and good

conscience.

And for this act of kindness the Prosecution shall as duty bound ever humbly pray.

Respectfully Submitted

S/d______________

Place: Durg, Xanadu Counsel(s) for Prosecution

Date: 18th September 2015 (Public Prosecuter)

team code- taw 6 surana & surana national … singh and anr. v. state of punjab...

Documents