SURANA NATIONAL TRIAL ADVOCACY MOOT … SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014 MEMORANDUM FOR THE DEFENCE 18. Prithviraj v. State Of Rajasthan 2004 CriLJ

________________________________________________________________________ MEMORANDUM FOR THE DEFENCE

SURANA & SURANA NATIONAL TRIAL ADVOCACY

MOOT COURT COMPETITION, 2014

BEFORE THE COURT OF SESSIONS

AT BAMBI, THANE

S.C. NO. 123 OF 2014

STATE OF BAMBI PROSECUTION

V.

MR. PANNA BOY,

MR. SABA KARIM & MR. JAIMIL DEFENCE

MEMORANDUM ON BEHALF OF THE DEFENCE

COUNSEL FOR THE DEFENCE

ii SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014


TABLE OF CONTENTS

LIST OF ABBREVIATIONS iv

INDEX OF AUTHORITIES v

I. TABLE OF CASES v

II. STATUTES & RULES vi

III. COMMENTARIES & LEXICONS vi

IV. WEBSITES vii

STATEMENT OF JURISDICTION 1

STATEMENT OF FACTS 2

STATEMENT OF CHARGES 3

ISSUES RAISED 4

SUMMARY OF ARGUMENTS 5

WRITTEN PLEADINGS 7

I. WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE

JOINTLY LIABLE FOR COMMITTING CRIMINAL CONSPIRACY 7

[1.1] NO AGREEMENT BETWEEN DW-1, DW-2 & DW-3 8

[1.2] NO ILLEGAL (AND/OR) CRIMINAL ACT DONE 8

[1.3] ABSENCE OF COMMON INTENTION 9

[1.4] UNRELIABLE CIRCUMSTANTIAL EVIDENCE 10

II. WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE

CONDITION OF REMISSION OF PUNISHMENT 13

[2.1] DW-1 WAS NOT GRANTED REMISSION OF PUNISHMENT 13

iii SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014


[2.2] THERE HAS BEEN NO VIOLATION OF CONDITION OF REMISSION 15

III. WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING

MS. NAIKA IN FEAR OF INJURY TO COMMIT EXTORTION 15

[3.1] DW-2 AND DW-3 DID NOT MAKE CALLS THREATENING PW-4 16

[3.2] UNRELIABLE CIRCUMSTANTIAL EVIDENCE 17

IV. WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE

GUILTY OF PRINTING OR ENGRAVING DEFAMATORY MATTER

& SELLING THE SAME 19

[4.1] NO IMPUTATION WAS MADE CONCERNING PW-4 21

[4.2] NO IMPUTATION BY WAY OF WORDS, SIGNS OR

REPRESENTATIONS 21

[4.3] NO INTENTION BEHIND THE ALLEGED IMPUTATION 21

PRAYER FOR RELIEF 23

iv SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014


LIST OF ABBREVIATIONS

¶ Paragraph Number

& And

AIR All India Reporter

Anr. Another

BomCR Bombay Case Reporter

BPC Barata Penal Code, 1860

CriLJ Criminal Law Journal

Crl Criminal

Cr.P.C. Code of Criminal Procedure, 1973

DW Defence Witness

Ed. Edition

Etc. Etcetera

GLH Gujarat Law Herald

Guj Gujarat High Court

No. Number

Ors. Others

p. Page Number

PW Prosecution Witness

s. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

S. No. Serial Number

ss. Sections

U/s. Under Section

U/ss. Under Sections

v. Versus

Vol. Volume

Vols. Volumes

v SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014


INDEX OF AUTHORITIES

I. TABLE OF CASES

S. No. Case Title Citation Page No.

1. Bhaba Nandan Barma v. State of Assam AIR 1977 SC 2252 12

2. Bimbadhar Pradhan v. State of Orissa AIR 1956 SC 469 9

3. Chattar Singh v. State of Haryana AIR 2009 SC 2819 17

4. Dadu @ Tulsidas Manpher Patel v. State Of Maharashtra 2001 (5) BomCR 264 14

5. Emperor v. Alex Pimento (1920) AIR Bombay 339 21

6. Girija Shankar v. State of U.P. AIR 2004 SC 1808 8

7. Govinda Reddy v. State of Mysore AIR 1960 SC 29 11

8. Govindbhai Mansing Dabhi v. State of Gujarat 2005 GLH (169) 25 13

9. Idris Bhai Daudhbhai v. State of Gujarat (2005) 3 SCC 277 12

10. Krishna Govind Patil v. State of Maharashtra AIR 1963 SC 1413 12

11. K.R. Purushothaman v. State of Kerala AIR 2006 SC 35 10

12. M.C.Verghese v. T.J.Punnam AIR 1970 SC 1876 20

13. Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144 10

14. Mohd Amin v. CBI (2008) 15 SCC 49 10

15. Narottamdas v. Patel Maganbhai Revabhai 1984 CriLJ 1790 (Guj) 19

16. Pandurang v. State of Hyderabad AIR 1955 SC 216 9

17. Pavitar Singh v. State Of Punjab & Anr. 1988 CriLJ 1052 13

vi SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014


18. Prithviraj v. State Of Rajasthan 2004 CriLJ 2190 17

19. Radhakrishnan v. State 1999-1-LW(Crl) 381 14

20. Ravule Hariprasada Rao v. State [1951] SCR 322 21

21. Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287 9

22. S.L. Goswami v. State of M.P (1972) 3 SCC 22 8

23. State of Maharashtra v. Som Nath Thapa AIR 1996 SC 1744 9

24. Sudama Pandey v. State of Bihar AIR 2002 SC 293 17

25. Vijayee Singh & Ors. v. State Of Uttar Pradesh AIR 1990 SC 1459 18

II. STATUTES & RULES

1. Indian Penal Code, 1860

2. Code of Criminal Procedure, 1973

3. Indian Evidence Act, 1872

4. Arms Act, 1959

5. Model Prison Manual for the Superintendence and Management of Prisons in India, 2003

III. COMMENTARIES & LEXICONS

1. Ratanlal & Dhirajlal: Law of Crimes, Vols. I & II (24th Ed. 1997)

2. P.S.A. Pillai: Law of Crimes, K I Vibhute (12th Ed. 2014)

3. B.M. Gandhi: Indian Penal Code (3rd Ed. 2012)

4. Ronald Bacigal & Mary Tate: Criminal Law and Procedure: An Overview (4th Ed. 2009)

vii SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014


5. Batuklal: Commentary on The Indian Penal Code, 1860, Vol. II (1st Ed., Reprint 2009)

6. Krishna Deo Gaur: Textbook on The Indian Penal Code, (4th Ed., Reprint 2011)

7. P.G. Osborn: Concise Law Dictionary, (1927)

8. Glanville Williams: Textbook of Criminal Law: The General Part, (2nd Ed. 1983, Reprint

1999)

9. Henry Campbell Black: Black’s Law Dictionary, (6th Ed.)

IV. WEBSITES

1. www.scconline.in

2. www.manupatra.com

3. www.indiankanoon.org

4. www.cdjlawjournal.com

5. www.westlawindia.com

1 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014


STATEMENT OF JURISDICTION

The Defence submits to the jurisdiction of this Hon’ble Court U/s. 177 read with s. 209 of the

Code of Criminal Procedure, 1973.

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

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

Read with

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

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

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

the Court of Session, he shall-

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

may be, the case to the Court of Session, and subject to the provisions of this Code

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

(b) subject to the provisions of this Code relating to bail, remand the Accused to custody

during, and until the conclusion of, the trial;

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

are to be produced in evidence;

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



STATEMENT OF FACTS

1. ‘Hit Factory’ is a movie that was left incomplete due to Mr. Panna Boy’s (a famous actor)

conviction in March, 2013 for the illegal possession of arms. As a result, Ms. Naika, the lead

actress of the movie refused to continue acting in the movie. Mr. Saba, the producer and Mr.

Jaimil, the director, approached her at her personal residence, to no effect. On the 3rd of

February, 2014, Panna was granted parole for the second time as his wife was being treated

at Star Hospital. The chain of events that transpired next were as follows:

i. On the 6th of February, 2014, Jaimil complained of chest pain and uneasiness and was

admitted in Star Hospital. Simultaneously, a shoot for a new project was ongoing at

the hospital. Panna was seen entering a room which was readied for a shoot. Popular

actresses such as Smt. Mashaal and Ms. Poonam were present in the room.

ii. On the 8th of February, Panna was seen in Central Mall along with his daughter. A

crew of movie stars along with Ms. Poonam and Mr. Jaimil were also sighted.

iii. On the 14th of February, there were advertisements of the movie ‘Hit Factory’ with

the subtext ‘releasing shortly’ in popular newspapers and magazines.

iv. On seeing the ads, Ms. Naika filed a suit for permanent injunction of the movie in the

High Court of Bambi. That evening, she received two anonymous calls on her

personal mobile threatening her of dire consequences unless she withdrew the suit.

2. Ms. Naika filed a criminal complaint on the 17th of February, 2014 against Mr. Panna, Mr.

Saba & Mr. Jaimil with multiple allegations. On completion of the investigation, the Magistrate

Court took cognisance of the report submitted by the Investigating Officer and committed the

case to the Court of Sessions.



STATEMENT OF CHARGES

CHARGE [I]

MR. PANNA BOY HAS BEEN CHARGED U/S. 120B READ WITH SS. 34, 227, 501 & 502 OF THE

BARATA PENAL CODE, 1860.

CHARGE [II]

MR. SABA KARIM HAS BEEN CHARGED U/S. 120B READ WITH SS. 34, 385, 501 & 502 OF THE

BARATA PENAL CODE, 1860.

CHARGE [III]

MR. JAIMIL HAS BEEN CHARGED U/S. 120B READ WITH SS. 34, 385, 501 & 502 OF THE BARATA

PENAL CODE, 1860.



ISSUES RAISED

ISSUE [I]

WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE JOINTLY LIABLE FOR

COMMITTING CRIMINAL CONSPIRACY U/S. 120B READ WITH S. 34 OF THE BARATA PENAL

CODE, 1860.

ISSUE [II]

WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE CONDITION OF REMISSION OF

PUNISHMENT U/S. 227 OF THE BARATA PENAL CODE, 1860.

ISSUE [III]

WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING MS. NAIKA IN FEAR OF

INJURY TO COMMIT EXTORTION U/S. 385 OF THE BARATA PENAL CODE, 1860.

ISSUE [IV]

WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PRINTING OR

ENGRAVING DEFAMATORY MATTER & SELLING THE SAME U/SS. 501 & 502 OF THE BARATA

PENAL CODE, 1860.



SUMMARY OF ARGUMENTS

______________________________________________________________________________

[I] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE JOINTLY LIABLE FOR

COMMITTING CRIMINAL CONSPIRACY.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that Mr. Panna Boy, Mr. Saba Karim & Mr.

Jaimil cannot be held jointly liable as none of the constituent elements of the alleged offence are

provable. The Prosecution has heavily relied on circumstantial evidence which amounts to bare

conjecture. Neither mens rea nor the actus reus can be made out from the actions of the Accused.

The charge is thus, not maintainable.

______________________________________________________________________________

[II] WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE CONDITION OF REMISSION OF

PUNISHMENT.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that the Accused Mr. Panna Boy has not

violated the condition of remission of punishment as he was not granted remission on any

condition. In the absence of any remission of punishment, the question of violation of that

remission does not arise. Therefore, the said charge cannot stand against the Accused.



______________________________________________________________________________

[III] WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING MS. NAIKA IN FEAR

OF INJURY TO COMMIT EXTORTION.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that the Accused Mr. Saba Karim & Mr. Jaimil

are not guilty of putting Ms. Naika in fear of injury in order to commit extortion. The Accused

have been wrongfully charged based on two anonymous threatening phone calls received by Ms.

Naika. The charge has been framed entirely on the basis of circumstantial evidence and is

therefore inadmissible. Such a charge cannot be maintained.

______________________________________________________________________________

[IV] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PRINTING

OR ENGRAVING DEFAMATORY MATTER & SELLING THE SAME.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that the Accused in the present instance cannot

be held guilty for Printing or Engraving defamatory matter or for Selling printed or engraved

defamatory matter. The alleged imputation was never published by the Accused as no

demarcation could be found in the advertisement published in the newspapers. Moreover, the

Accused has no intention to harm the reputation of the complainant and her family. Thus the

charge is not maintainable.



WRITTEN PLEADINGS

______________________________________________________________________________

[I] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE JOINTLY LIABLE OF

COMMITTING CRIMINAL CONSPIRACY.

______________________________________________________________________________

It is humbly contended before this Hon’ble Court that Mr. Panna Boy (hereinafter referred to as

‘DW-11’), Mr. Saba Karim (hereinafter referred to as ‘DW-32’), and Mr. Jaimil (hereinafter

referred to as ‘DW-23’) are not guilty of the offence U/s. 120B read with s. 34 of the Barata

Penal Code, 1860 (hereinafter referred to as the ‘BPC’). In the present instance, it has been

wrongfully alleged that DW-1, DW-2 & DW-3 have committed Criminal Conspiracy.

By virtue of ss. 120A4 & 345, the essentials required to be proved to hold the Accused jointly

liable for the charge of Criminal Conspiracy are that:

i. There should be two or more persons; [1.1]

ii. There should be an agreement between themselves; [1.1]

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

an illegal act (or) a legal act by illegal means; [1.1.1]

iv. A criminal act must be done by the persons; [1.2]

v. The criminal act must be to further the common intention of all; and [1.3]

1 Moot Proposition, List of Witnesses, p. 4

2 Ibid

3 Ibid

4 Section 120A. Definition of criminal conspiracy., Barata Penal Code, 1860

5 Section 34. Acts done by several persons in furtherance of common intention., Barata Penal Code, 1860



vi. There must be participation of all persons in furthering the common intention.

The onus of proving all the ingredients of an offence is always upon the Prosecution and at

no stage does it shift to the Accused. Even in cases where the defence of the Accused does not

appear to be credible or is palpably false that burden does not become any less6. Therefore, to

establish a charge U/s. 120B read with s. 34, the Prosecution must prove7 all of the above beyond

a reasonable doubt.

It is humbly contended that there is insufficient evidence to prove that the Accused have

committed Criminal Conspiracy. The Prosecution has heavily relied on futile circumstantial

evidence [1.4] to show participation of the Accused in a criminal act [1.4] in the present case.

[1.1] NO AGREEMENT BETWEEN DW-1, DW-2 & DW-3

It requires prior concert or pre-arranged design to commit a criminal act by several persons8.

There is no evidence anywhere to prove that there was an express or implied agreement between

DW-1, DW-2 & DW-3.

1.1.1: ABSENCE OF AGREEMENT FOR THE PURPOSE OF DOING AN ILLEGAL ACT:

Having said that there was no agreement between the Accused in the first instance, it is

irrelevant to show that the agreement was for the purpose of committing an Illegal Act.

[1.2] NO ILLEGAL (AND/OR) CRIMINAL ACT DONE

1.2.1: NO ILLEGAL ACT DONE:

By virtue of s. 439 of the BPC, the term ‘illegal’ act10 encompasses everything: 6 S.L. Goswami v. State of M.P., (1972) 3 SCC 22

7 ss. 101 & 102: Burden of Proof, Barata Evidence Act, 1872

8 Girija Shankar v. State of U.P., AIR 2004 SC 1808

9 Section 43. “Illegal”, “Legally bound to do”., Barata Penal Code, 1860



a) which is an offence11

b) which is prohibited by law, and

c) which furnishes a ground for civil action.

In the present context, illegal act would refer to the offences alleged by the Prosecution. In

the case of conspiracy, the mere agreement to do an illegal act suffices to prove the charge of

conspiracy. It is not imperative that an overt act must have been committed in furtherance of the

common design12.

To establish the charge of conspiracy, knowledge about the involvement or indulgence in

either an illegal act or a legal act by illegal means is necessary13.

1.2.2: NO CRIMINAL ACT DONE:

Similarly, there is no evidence to show the commission of a Criminal Act in the present case.

The essence of Joint Liability is that the person must be physically present at the actual

commission of the crime14, which is absent in the present case.

[1.3] ABSENCE OF COMMON INTENTION

The general principle is that common intention as defined in s. 34 implies a pre-arranged plan

and to convict an Accused, it should be proved that the criminal act was done in concert pursuant

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

11 Section 40. “Offence”., Barata Penal Code, 1860

12 Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469

13 State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744

14 Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287



to the pre-arranged plan15. The act must have been done in furtherance of common intention of

all. Accordingly, there must have been a prior meeting of minds16.

DW-3 had borrowed heavily from various sources for the movie ‘Hit Factory’. Though

he was under pressure to complete the film, he did not commit any offence in the course of its

completion. As soon as DW-2 & DW-3 understood that Ms. Naika (hereinafter referred to as

‘PW-417’), the lead actress, would not co-operate in the completion of the movie, they decided to

complete it using techniques of super-imposition18 for which shooting was not required.

Furthermore, the Accused had no knowledge of the main object and purpose of the

alleged conspiracy, which is a necessary requisite of criminal conspiracy19.

[1.4] UNRELIABLE CIRCUMSTANTIAL EVIDENCE

While appreciating the evidence of the conspiracy, it is however, incumbent on a Court to keep

in mind the well-known rule governing circumstantial evidence, namely, each and every

incriminating circumstance must be clearly established by reliable evidence and the

circumstances proved must form a chain of events from which the only irresistible conclusion

about the guilt of the Accused can be safely drawn, and no other hypothesis against the guilt is

15 P.S.A. Pillai: Criminal Law, K I Vibhute (12th Ed. 2014)

16 Pandurang v. State of Hyderabad, AIR 1955 SC 216


18 Moot Proposition, Annexure-3, Report of PW-2, p. 11, ¶ 9

19 Mohd Amin v. CBI, (2008) 15 SCC 49



possible20. When attempting to convict on circumstantial evidence alone, the Court must be

firmly satisfied of the following three things21:

• The circumstances from which the inference of guilt is to be drawn, must have fully been

established by unimpeachable evidence beyond a shadow of doubt;

• The circumstances are of determinative tendency, unerringly pointing towards the guilt of

the Accused; and

• The circumstances taken collectively, are incapable of explanation on any reasonable

hypothesis except that of the guilt sought to be proved against him.

In the present matter, the Prosecution has failed to establish a clear chain of events. Though the

Report22 of Inspector Mr. Sundar, the Investigating Officer (hereinafter referred to as ‘PW-223’)

provides a detailed account of events, there are several inconsistencies in his Report, one of

which is that:

There has been only one instance where DW-2 & DW-3 visited PW-4 at her personal

residence24. However, the Report cites two instances of DW-2 & DW-3 having visited

PW-4 at her personal residence25. This is merely based on the conjectural Witness

Statement of PW-426.

20 K.R. Purushothaman v. State of Kerala, AIR 2006 SC 35

21 Mohan Lal v. State of Uttar Pradesh, AIR 1974 SC 1144

22 Moot Proposition, Annexure-3, p. 9


24 Moot Proposition, p. 2, ¶ 7

25 Moot Proposition, Annexure-3, Report of PW-2, p. 11, ¶ 11

26 Moot Proposition, Annexure-1, Statement of Witnesses, p. 5, ¶ 3



The circumstances should be of a conclusive nature and tendency and they should be such as to

exclude every hypothesis but the one proposed to be proved27. It is safe to infer that in the

present case, there is more than one possible hypothesis as to the explanation of the following:

• The daily presence of DW-1 in Star Hospital;

• The presence of DW-1 in Smt. Mashaal’s room (hereinafter referred to as ‘DW-528’);

• The purpose of DW-1’s presence in Central Mall on the 8th of February, 2014;

• The reason for which Mr. Jaimil was admitted in Star Hospital on the 6th of February;

• The manner in which the movie, ‘Hit Factory’ was completed;

• The ownership of publication of the defamatory posters in the newspapers & magazines

on the 14th of February, 2014; and

• Who made the threatening calls to PW-4 from a public phone booth.

There are a plethora of cases29 that point to the sufficiency of circumstantial evidence. An

inference based on circumstances must be premised on the incriminating facts established by the

Prosecution beyond reasonable doubt and not on bare conjecture, surmise or suspicion.

Criminal Conspiracy being an inchoate offence, the mere agreement to commit a crime is

punishable30. However, the application of Joint Liability only arises when the commission of

some act is proved by the Prosecution.

27 Govinda Reddy v. State of Mysore, AIR 1960 SC 29


29 Bhaba Nandan Barma v. State of Assam, AIR 1977 SC 2252; Krishna Govind Patil v. State of Maharastra, AIR 1963 SC 1413; Idris Bhai Daudhbhai v. State of Gujarat, (2005) 3 SCC 277

30 Glanville Williams: Textbook of Criminal Law: The General Part, (2nd Ed. 1983, Reprint 1999), p. 420



In light of the above, it is humbly submitted that in the instant matter, DW-1, DW-2 & DW-3

are not guilty of committing Criminal Conspiracy U/s. 120B read with s. 34 and cannot be held

jointly liable for the same. It is contended that the Report of PW-2 is coloured since the

conclusion of the Report is based on insufficient and inconclusive evidence.

______________________________________________________________________________

[II] WHETHER MR. PANNA BOY IS GUILTY OF VIOLATING THE CONDITION OF REMISSION OF

PUNISHMENT.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that DW-1 is not guilty of the offence U/s. 227

of the BPC. He has been wrongfully alleged of violating the conditions of remission of

punishment.

The first and foremost thing to be established is whether DW-1 was granted remission of

punishment [2.1]. Only on proving the above, can the violation of the conditions of remission of

punishment be proved [2.2].

[2.1] DW-1 WAS NOT GRANTED REMISSION OF PUNISHMENT

Remission is defined as forgiveness or condonation of an offence or injury31. Remission is a

concession, which can be granted to prisoners by the State Government or by the Head of the

Prison Department and Superintendent of Prisons32. The appropriate Government may, at any

31 Henry Campbell Black: Black’s Law Dictionary, (6th Ed.); Pavitar Singh v. State Of Punjab & Anr., 1988 CriLJ 1052

32 Model Prison Manual for the Superintendence and Management of Prisons of India, 2003, p. 201



time, without conditions or upon any conditions which the person sentenced accepts, remit the

whole or any part of the punishment33.

From the above, it can be understood that the reduction of the sentence from 6 years to 5

years rigorous imprisonment by the Supreme Court cannot be considered as remission of

punishment. Such a reduction in the sentence was because DW-1 had already served one and half

years in prison.

• A period of furlough may be treated as remission of punishment34. However, there is no

evidence or official record to show that DW-1 has been released on furlough35. It is clear

from the facts and the Witness Statements36 that DW-1 has not been granted furlough

during his period of sentence.

• DW-1 was granted parole on the 3rd of February, 2014 due to his wife’s ill-health that

needed constant care37. However, parole does not come within the ambit of remission of

punishment. Parole is defined as the release of a prisoner temporarily for a special

purpose or completely before the expiry of a sentence, on the promise of good behaviour;

such a promise; a word of honour38. Parole is considered to be a part of imprisonment and

33 Section 432. Power to suspend or remit sentences., Code of Criminal Procedure, 1973

34 Govindbhai Mansing Dabhi v. State of Gujarat, 2005 GLH (169) 25


36 Moot Proposition, Annexure-1, Statement of Witnesses, p. 5


38 P.G. Osborn: Concise Law Dictionary, (1927)



shall not be deduced as remission of punishment39. A 'parole' is not a 'suspension of

sentence40.

[2.2] THERE HAS BEEN NO VIOLATION OF CONDITION OF REMISSION

Condition for remission of punishment is said to be violated when whoever, having accepted any

conditional remission of punishment, knowingly violates any condition on which such remission

was granted41. It is humbly submitted that the above stated provision is not applicable in the

instant case. DW-1 has not been granted remission. In the absence of any remission of

punishment to the Accused, the case of violating the condition of remission of punishment does

not arise.

Therefore the charge cannot be sustained in the view of the fact that releasing an Accused

on parole will not come within the purview of s. 227. DW-1 has been wrongfully charged U/s.

227.

______________________________________________________________________________

[III] WHETHER MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PUTTING MS. NAIKA IN FEAR

OF INJURY TO COMMIT EXTORTION.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that DW-2 and DW-3 are not guilty of putting

PW-4 in fear of injury in order to commit extortion U/s. 385 of the BPC. The Accused have been

wrongfully charged as there is no evidence to prove the aforementioned offence.

39 Radhakrishnan v. State, 1999-1-LW(Crl) 381

40 Dadu @ Tulsidas Manpher Patel v. State Of Maharashtra, 2001 (5) BomCR 264

41 Section 227. Violation of condition of remission of punishment., Barata Penal Code, 1860



It is humbly contended that in order to bring home the charge U/s. 385, it is important to

see whether there was actus reus on the part of DW-2 and DW-3 [3.1] and whether a case based

entirely on circumstantial evidence is admissible [3.2].

[3.1] DW-2 AND DW-3 DID NOT MAKE CALLS THREATENING PW-4

Extortion42 occurs when a person intentionally puts any person in fear of any injury to that

person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any

person any property or valuable security, or anything signed or sealed which may be converted

into a valuable security. A person is said to have committed an offence U/s. 385 if he puts any

person in fear, or attempts to put any person in fear, of any injury, in order to commit extortion43.

It is humbly submitted to this Hon’ble Court that there is no actus reus on the part of

DW-2 and DW-3, one of the fundamentals in establishing a crime44. To constitute a crime there

must always be a result brought about by human conduct, a physical event, which the law

prohibits45. In the instant case the act of putting the complainant in fear of injury is absent.

• The said charge has been wrongfully framed, based on two anonymous threatening phone

calls46 that PW-4 received on her personal mobile. The calls were made to PW-4

threatening her to withdraw the permanent injunction suit filed by her against the release

of the movie ‘Hit Factory’ at the High Court of Bambi. These calls were attributed to the

42 Section 383. Extortion., Barata Penal Code, 1860

43 Section 385. Putting person in fear of injury in order to commit extortion., Barata Penal Code, 1860

44 Ranjeet Bhagat v. State Of Bihar

45 Krishna Deo Gaur: Textbook on The Indian Penal Code, (4th Ed., Reprint 2011), p. 37

46 Moot Proposition, Annexure-4, Transcript of Phone Calls, p. 13, ‘Exhibit 4’



Accused merely based on the fact that the voice on the other end of the line was that of a

male47.

• The calls were made from a public phone. They could have been made by anyone.

Angered by the injunction suit, one of DW-1’s fans could have made the anonymous

calls.

In the light of these facts, it is humbly submitted that the Accused cannot be convicted on such

ill-founded and unjustified grounds.

It is important to note that the statement made by PW-2 in p. 1 of his Report is that, “Yes.

Threat of dire consequences issued to Ms. Naika, actress over phone for withdrawing an

injunction in High Court for release of the Movie ‘Hit Factory’ by producer Mr. Saba and

Director Mr. Jaimil” 48. However, in the conclusion of his Report, he claims that, “They could

have issued some kind of threat to Ms. Naika to this end”49.

It is evident from the submissions of PW-2, that there is a very clear presence of doubt in

the Report. He has not found any conclusive evidence to prove that the calls were made by DW-

2 and DW-3. The charges have been made on a mere assumption and to convict the Accused on

such baseless and unsubstantiated charges would amount to a gross miscarriage of justice.

[3.2] UNRELIABLE CIRCUMSTANTIAL EVIDENCE

A conviction on the basis of circumstantial evidence is permissible only when the circumstances

relied upon is proved beyond reasonable doubt50. Circumstantial evidence may be defined as any

47 Ibid

48 Moot Proposition, Annexure-3, Report of PW-2, p. 9

49 Moot Proposition, Annexure-3, Report of PW-2, p. 12

50 Chattar Singh v. State of Haryana, AIR 2009 SC 2819



fact (sometimes called an 'evidentiary fact', 'factum probans' or 'fact relevant to the issue') from

the existence of which the judge or jury may infer the existence of a fact in issue (sometimes

called a 'principal fact' or 'factum probabndum')51. It a well-established principle that if a case is

dependent wholly on circumstantial evidence, the Court before recording a conviction on the bias

therefore must be firmly satisfied that52:

• The circumstances from which the conclusion of the guilt is to be drawn should be fully

established;

• The fact so established should be consistent not only with the hypothesis of the guilt of the

Accused, that is to say, they should not be explainable on any other hypothesis except

that the Accused is guilty;

• The circumstances should be of conclusive nature and tendency;

• They should exclude every possible hypothesis except the one to be proved;

• There must be a chain of evidence so complete as not to leave any reasonable ground for

conclusion inconsistent with the innocence of the Accused and must show that in all

human possibility, the act must have been done by the Accused.

The above conditions state that the circumstantial evidence must prove that the Accused is guilty

of the offence beyond reasonable doubt in order to convict him of the offence. But, in the instant

case, the Prosecution has failed to satisfy the above conditions.

• The circumstances fail to infallibly point towards DW-2 and DW-3, as the calls were

made from a public phone. Furthermore, there is no evidence to confirm that the Accused

51 Prithviraj v. State Of Rajasthan, 2004 CriLJ 2190

52 Sudama Pandey v. State of Bihar, AIR 2002 SC 293



were present at the location of the public booth at 6:05 p.m. and 6:15 p.m. on the 16th of

February, 201453.

• When all the circumstances are taken collectively, more than one reasonable hypothesis

can be framed.

The Prosecution must prove its case beyond reasonable doubt is a rule of caution laid down

by the Courts of Law in respect of assessing the evidence in criminal cases54. Mere suspicion or

probability of guilt, however strong, will not authorise a conviction55.

In light of the aforementioned arguments, it is humbly submitted that the Prosecution, on

whom the burden of proof56 lies, has not been able to establish the guilt beyond reasonable

doubt. Therefore it is humbly submitted before this Hon’ble Court that the charge of causing fear

of injury in order to commit extortion cannot be maintained.

______________________________________________________________________________

[IV] WHETHER MR. PANNA BOY, MR. SABA KARIM & MR. JAIMIL ARE GUILTY OF PRINTING

OR ENGRAVING DEFAMATORY MATTER & SELLING THE SAME.

______________________________________________________________________________

It is humbly contended before this Hon’ble Court that DW-1, DW-2 & DW-3 are not guilty of

the offences under ss. 501 & 502 of the BPC. In the matter at hand, it has been wrongfully

alleged that the Accused have committed Defamation.

53 Moot Proposition, Annexure-4, Transcript of Phone Calls, p. 13, ‘Exhibit 4’

54 Vijayee Singh & Ors. v. State Of Uttar Pradesh, AIR 1990 SC 1459

55 Ronald Bacigal & Mary Tate: Criminal Law and Procedure: An Overview (4th Ed. 2009)

56 Section 101. Burden of Proof., Barata Evidence Act, 1872



The alleged offence U/s. 501 of the BPC has within itself certain key ingredients to be

proved for the offence to be made against an individual. The Accused must have:

i. Printed or engraved any matter; and

ii. Known or had good reasons to believe that such matter was defamatory of any person.

Similarly, the elements57 to be proved U/s. 502 to hold a person liable for the Sale of engraved or

printed defamatory matter are that:

i. There must be a sale or offer for sale of any printed or engraved substance; and

ii. There must be knowledge that such substance contains defamatory matter.

The alleged offences fall within the purview of offences U/s. 499 of the BPC which sketches the

constituents of defamation as follows:

i. Making or publishing58 any imputation concerning any person; [4.1]

ii. The imputation must have been made:

a. By words, either spoken or intended to be read; or

b. By signs; or

c. By visible representation; [4.2]

iii. Such imputation must have been made with the intention of harming or with knowledge

or having reason to believe that it will harm the reputation of the person concerning

whom it is made59.[4.3]

The Prosecution has to prove beyond reasonable doubt that all of the aforementioned

elements have been carried out by the Accused in order to convict them U/ss. 501 & 502.

57 Batuklal: Commentary on The Indian Penal Code, 1860, Vol. II (1st Ed., Reprint 2009)

58 Narottamdas v. Patel Maganbhai Revabhai, 1984 Cri LJ 1790 (Guj)

59 M.C.Verghese v. T.J.Punnam, AIR 1970 SC 1876



[4.1] NO IMPUTATION WAS MADE CONCERNING PW-4

The advertisements found in the popular newspapers and magazines which was said to have

released on the 14th of February, 201460, nowhere mention that the production house of the film

‘Hit Factory’ had published it. However, the complainant PW-4 has falsely alleged that the

production house along with the lead actor of the movie have carried out the defamatory act. The

Accused in this matter has no intention of tarnishing the reputation of PW-4. It can be safely

inferred from the above that the Accused cannot be held responsible as the main element for

charging a person with a criminal offence, i.e. actus reus has not been proved in the present

matter.

[4.2] NO IMPUTATION BY WAY OF WORDS, SIGNS OR REPRESENTATIONS

The imputation was made to PW-4 by way of a visual representation as seen in Exhibit 561. In

order to prove the offence of defamation, it must be shown that the imputation or publication was

carried out by the Accused which is absent in the present matter. When the Defence has denied

that no such imputation or representation was made by the Accused against the complainant, it is

irrelevant to prove the means by which the imputation has been carried out.

[4.3] NO INTENTION BEHIND THE ALLEGED IMPUTATION

In order to charge a person with a criminal offence, the Prosecution has to prove beyond

reasonable doubt that the Accused have the intention to defame the complainant62. The intention

has to be proved by showing that there was mens rea63 in carrying out the alleged imputation.

60Moot Proposition, p. 3, ¶ 17

61 Ibid

62 Emperor v. Alex Pimento, (1920) AIR Bombay 339



The facts of the case make it evident that PW-4 was one among the leading actresses and

top models for many of the famous production companies. It is to be noted that DW-1, the first

Accused in this matter, also belongs to a very illustrious family in the movie industry and that

between 2005-2009 four of his movies were blockbuster hits64. The Accused are fully aware of

the status the lead actress holds in the country of Barata and at no instance can their intention of

tarnishing the image of the complainant be proved.

In Ravule Hariprasada Rao v. State65, the Apex Court ruled that unless a statute either

clearly or by necessary implication rules out mens rea as a constituent element of crime, a person

should not be held guilty of an offence unless he had guilty mind at the time of commission of

the act. The Defence has at all times denied the fact that any action or even any intention to act in

order to defame the complainant has been done.

The Accused have not indulged in defamatory acts and hence the Accused cannot be held

liable U/ss. 501 & 502.

63 “There must be a mind at fault to constitute a crime and the act becomes criminal when the actor does it with a guilty mind” - P.S.A. Pillai: Criminal Law, K I Vibhute (10th Ed.), p. 58


65 [1951] SCR 322



PRAYER FOR RELIEF

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, may this

Hon‘ble Court be pleased to adjudge and declare that:

1. Mr. Panna Boy, Mr. Saba Karim & Mr. Jaimil are not guilty of committing Criminal

Conspiracy.

1. Mr. Panna Boy is not guilty of Violating the Condition of Remission of Punishment.

2. Mr. Saba Karim & Mr. Jaimil are not guilty of Putting a person in Fear of Injury to

commit Extortion.

3. Mr. Panna Boy, Mr. Saba Karim & Mr. Jaimil are not guilty of Printing or Engraving

Defamatory Matter and of Sale of Printed or Engraved Defamatory Matter.

and pass any other order or orders it may deem fit, in the interest of Justice, Equity and Good

Conscience.

All of which is most humbly and respectfully submitted.

Place: Bambi, Thane S/d_____________

Date: 5th August, 2014 COUNSEL FOR THE DEFENCE

Documents

SURANA NATIONAL TRIAL ADVOCACY MOOT … SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2014 MEMORANDUM FOR THE DEFENCE 18. Prithviraj v. State Of Rajasthan 2004 CriLJ