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
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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
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[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
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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
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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
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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.
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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
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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)
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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
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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.
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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.
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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.
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[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.
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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
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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
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. 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
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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
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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.)
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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)