Group No.

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GEETA INSTITUTE OF LAW

BEFORE THE HON’BLE SUPREME COURT

In the Matter Of
Criminal Appeal No. 1441 of 2022

SPECIAL LEAVE JURISDICTION

The State of
Jharkhand……...……………….….……..Petitioners

VERSUS

Shalindra Kumar Rai……..……………………Respondent

Memorandum On Behalf Of The Respondent

Drawn And Filed By The Counsels For The Respondent
 Table of Contents

LIST OF ABBREVIATION..................................................................2

LIST OF AUTHORITY........................................................................ 3

STATEMENT OF JURISDICTION..................................................... 4

STATEMENT OF FACT...................................................................... 5

ISSUE RAISED.....................................................................................7

ARGUMENT.........................................................................................8

1. Whether the statement of the deceased is relevant Under Section

32(1) of the Indian Evidence Act 1872 ?............................................8

2. Whether the prosecution has proved the charges against the

Respondent beyond reasonable doubt ?........................................... 10

PRAYER..............................................................................................11

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 LIST OF ABBREVIATION

ABBREVIATIONS DESCRIPTION
SC Supreme Court

Art. Article

Sec. Section

Govt. Government

AIR All India Report

Anr. Anothers

HR Haryana

HC High Court

Hon’ble Honourable

ILR Indian Law Reports

Ors. Others

SCC Supreme Court Cases

SCR Supreme Courts Reports

Ed. Edition

CPA Consumer Protection Act

Vs. Versus

U/S Under Section

U/A Under Article

i.e. That is

& And

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 LIST OF AUTHORITY

Legal database:

www.scconline.com
www.manupatra.com
www.main.sci.gov.in

Statues

INDIAN PENAL CODE , 1860

CRIMINAL PROCEDURE CODE 1973
INDIAN EVIDENCE ACT,1872

 Dictionary consulted

i. Bryan A. Garner, ‘Black’s Law Dictionary’, 9th Ed.,

2009, West Group.
ii. Greenberg Daniel, ‘Strouds Judicial Dictionary of
Words and Phrases’, 7th Ed. Sweet and Maxwell Co.

 Cases

I. Irfan vs State of UP,2023

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 STATEMENT OF JURISDICTION

The respondent has approached the Hon’ble Supreme Court under Article 136 of the
Constitution of India, 1950. In response to the present petition filed by the petitioner invoking
the jurisdiction of this Hon’ble Supreme Court.

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 STATEMENT OF FACT

THE TALE OF UNFORTUNATE DAY

It was rather unfortunate day for this girl, when she was taken from her home,village
narangi to sadar hospital deoghar, by her family and loved ones while she was in
excruciating pain. Where she got admitted and underwent treatment for the injuries
sustained by her.
The station in-charge at PS Sarwna, received information regarding the incident and
travelled to Deoghar, where he recorded 'fardbeyan'.

THE FARDBEYAN
“What happened to you?” asked the police officer to the girl. “Accused entered our house in
Narangi village, on the afternoon of 7 November 2004, he pushed me to the ground and
committed rape upon me, while threatening to kill me if i sounded an alarm. I called out for
help, and the Respondent poured kerosene on me and set me on fire with a matchstick, after
listening to my cries for help my grandfather, mother, and a resident of the village to come
to my room. The accused fled the scene upon seeing them.

FIR AND CHARGE SHEET

FIR was registered at PS Sarwna on the basis of the statement of the victim and the
investigation commenced. Upon the completion of the investigation, the IO submitted a
charge-sheet Under Section 173 of the Code of Criminal Procedure 1973 for offences ,
Under Sections 307, 341, 376 and 448 of the Indian Penal Code. The victim died on 14
December 2004, leading to the submission of a supplementary charge-sheet against the
Respondent, with reference to Section 302 of the Indian Penal Code.
The Respondent denied his guilt and the trail commenced.

JUDGEMENTS

The Sessions Judge had convicted the Respondent for offences punishable Under
Sections302, 376, 341 and 448 of the Indian Penal Code 18601 and sentenced him to suffer

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imprisonment for life. An appeal from the judgement of session court was preferred in the
High Court, High Court allowed the appeal by the Respondent and set aside the order of
conviction

STATUS QUO

State of Jharkhand filed a special leave petition and matter is pending before the hon’ble
court.

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 ISSUE RAISED

ISSUE Ⅰ :

1) Whether the statement of the deceased is relevant Under Section 32(1) of the Indian
Evidence Act 1872 ?

ISSUE Ⅱ :

2) Whether the prosecution has proved the charges against the Respondent beyond
reasonable doubt ?

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 ARGUMENT

1. Whether the statement of the deceased is relevant Under Section 32(1) of the Indian
Evidence Act 1872 ?

It is humbly submitted before this Hon’ble Court that:

Declaration was not made under expectation of death:

The principle on which it is admitted as evidence is indicated in the legal maxim

‘nemomoriturus prae-sumitur mentire’ which means a man will not meet his maker with a lie
in his mouth. This is exactly the reason as to why courts have held that an accused can be
convicted solely on the basis of ‘Dying Declaration. Since an accused can be convicted solely
on the basis of dying declaration, the court is expected to carefully scrutinize the same. Three
essential ingredients will have to be proved to the satisfaction of the court and they are:- (i)
the declarant should have been in actual danger of death at the time when he made the
statement; (ii) he should have had full apprehension of his danger and (iii) death should have
ensued.

In Irfan vs State of UP,2023 supreme court reproduce certain factors to determine the
weight of dying declaration and one of such factor is : Whether the person making the
statement was in expectation of death or not.

In the present case the injury which was sustained by the deceased was not possessing any
imminent threat to her life and she was under the expression that she will not die, but the
circumstances does not play out in her favour and she died. The facts of the case clearly
shows that she meet the maker on 14 december after 37 days of making the statement to
police officer.

Investgating officer did not make a requisition to the CJM, Deoghar to record the statements
of either the Respondent or the deceased because he was not in the expression that she is
going to die.

Dr. Minu Mukherjee, a Medical Officer at Sadar Hospital, deposed that she was a member of
the Medical Board constituted to examine the victim when she was undergoing treatment for
her injuries. She testified that the Medical Board examined the deceased on 7 November
2004 and made the following findings: The deceased had sustained burns in her pubic region,

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breasts, and the frontal area of her scalp, which indicates that deceased may have die due to
septicemia but at time of making statement she was not under any expression that her injury
will cause threat to her life .

Therefore, the statement of deceased cannot be formed the sole basis of conviction of accused
because their lies a great possibility that, the statement was result of imagination of mind or
some conspiracy against the accused which the testimonies of Dhirendra Rai, a resident of
Narangi village, who deposed that a false case had been instituted against the Respondent and
that one Kashi Rai and the Respondent had a disagreement concerning the irrigation of
certain land.

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2. Whether the prosecution has proved the charges against the Respondent beyond
reasonable doubt ?

It is humbly submitted before this Hon’ble cort that :

There exist a number of reasonable doubts

Firstly Deceased in her statement tells the police that accused came into her room and set her
on fire and after her cry for help her family members came to her help in her room but
investigating officere in his testimony in court stated that he examined the scene of the crime
and found burnt clothes, an empty bottle of what seemed to be kerosene, and dust in the
veranda, where the crime is said to have occurred. Therefore it raises the question as where
the crime take place.

Secondly IO testified that he did not find a matchbox, kerosene lamp, lantern, or any other
material which could light a fire at the scene of the crime. He stated that he did not send the
empty bottle which he had seized from the scene of the crime to a laboratory because he was
transferred soon after he seized it.

Thirdly if the accused spilled oil over the deceased then from he bought the oil, police was
unable to state a clear res gestae which could have been done if the accused truly donr that
crime.

Fourthly, Family members did not see a person coming into the house and leaving the house.

Fifthly, Dr. Minu Mukherjee, a Medical Officer at Sadar Hospital, deposed that she was a
member of the Medical Board constituted to examine the victim when she was undergoing
treatment for her injuries. She testified that the Medical Board examined the deceased on 7
November 2004 and made the following findings:

i. No foreign hair was found in the pubic region of the deceased;

ii. A pathological report based on a vaginal smear revealed that there was no spermatozoa
(living or dead) in the pubic region of the deceased;

If a rape have been commited upon her both the finding would have been contrary.

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 PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly prayed and implored before the Hon’ble Supreme Court, that it may be
graciously pleased to adjudge and declare that:

The prosecution fails to prove its case beyond reasonable doubt.

That the statement of deceased can not be made sole basis of conviction in this case.
That the decision of HC is upheld by the hon’ble bench.

Any other order as the Hon’ble Court deems fit in the interests of equity, justice, and good
conscience.

For This Act of Kindness, The Respondent Shall Duty Bound Forever Pray.

Counsels for respondents

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