1ST C.L.

AGRAWAL MEMORIAL MOOT COURT COMPETITION, 2017 STATE OF RAJASTHAN

TEAM CODE: CL08

1ST C.L. AGRAWAL MEMORIAL MOOT COURT COMPETITION, 2017

IN THE HON’BLE HIGH COURT OF RAJASTHAN

CRIMINAL APPEAL NO...…/2017

[UNDER SEC. 302, 304-B AND 498-A OF THE INDIAN PENAL CODE, 1860]

RAJKUMAR APPELLANT

V.

STATE OF RAJASTHAN RESPONDENT

Most respectfully submitted to the Hon’ble Justice the memorial drawn

on behalf of the RESPONDENT

STATE OF RAJASTHAN

Memorial for Respondent

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ...........................................................Error! Bookmark not defined.

LIST OF ABBREVIATIONS ..........................................................Error! Bookmark not defined.

STATEMENT OF JURISDICTION ..............................................Error! Bookmark not defined.

SYNOPSIS OF FACTS ....................................................................Error! Bookmark not defined.

ISSUES RAISED ..............................................................................Error! Bookmark not defined.

SUMMARY OF ARGUMENTS .....................................................Error! Bookmark not defined.

ARGUMENTS ADVANCE……………………………………………………………….....1-22
1. WHETHER THE GOLD ORNAMENTS RECEIVED AT THE TIME OF NUPTIAL FIRE COME
UNDER THE PURVIEW OF STRIDHAN?....................................................................................1

2. WHETHER THERE IS ANY EVIDENTIARY VALUE OF EXPERT OPINION AND

MEDICAL REPORT. CAN AN ACCUSED BE PUNISHED ON THE BASIS OF
MULTIPLE DYING DECLARATIONS?............................................................5

2.2 Whether there is any evidentiary value of an expert opinion or not?..................6

2.3 Whether the appellant can be punished on the basis of Multiple Dying
Declaration?.................................................................................................................8

3. WHETHER THE JUDGMENT OF SESSIONS COURT MAKING THE APPELLANT LIABLE FOR
THE OFFENCE OF MURDER UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860 IS
CORRECT OR NOT?..................................................................................................................9

3.1. Applicability of section 300 of the Indian Penal Code, 1860……………………….10

3.1.1. That the requisites of the clause (1) of murder are fulfilled in the circumstances
of the instant case, thus it incurs liability under this clause…………………..11

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3.1.2. That the requisites of the clause (2) of murder are fulfilled in the circumstances
of the instant case, thus it incurs liability under this clause. …………………12
3.1.3. That the requisites of the clause (3) of murder are fulfilled in the circumstances
of the instant case, thus it incurs liability under this clause…………………..13

4. WHETHER THE ACCUSED BE PUNISHED UNDER SECTION 304-B AND 498-A OF THE INDIAN
PENAL CODE, 1860?.........................................................................................................................15

4.1. The death of a woman must have been caused by burns or bodily injury or
otherwise than under normal circumstances…………….………………………………15

4.1.1 Whether Dowry Death Has Been Caused U/S 304B Also Considering The
Section 498A?.................................................................................................................16

4.2.1. Application of Section 304 B…………………………………………………..17

4.2.1.1.Death has not occurred within seven years…………………………….18

4.2.1.2.The death of a woman must have been caused by burns or bodily injury or
otherwise than under normal circumstances;…………………………………………….19

4.2.1.3. Soon before her death, the woman must have been subjected to cruelty
or harassment by her husband or any relatives of her husband……20
4.2.1.4 The Expression “Soon Before her death”…………………………….21
4.2.1.5 Cruelty in relation to Dowry Death……………………………………22

PRAYER…………………………………………………………………………IX

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INDEX OF AUTHORITIES

CASES REFERRED

1. Abdul Waheed Khan & Ors v. State of A.P. , (2002) 7 S.C.C. 175. ................................ 20
2. Ajit Singh v. State of Punjab, (2011) 9 S.C.C. 462. ......................................................... 20
3. Ajmer Singh v. State of Punjab (1953) S.C.R. 418. ......................................................... 22
4. Akula Ravinder v. State of A.P. , A.I.R. 1991 S.C. 1142:1991 SCC (C.R.) 990 ............. 26
5. Akula Ravindra v, State of A.P. A.I.R. 1991 S.C. 1142 ................................................... 28
6. Awadesh v. state of M.P. A.I.R. 1988 S.C. 1158 :1988 Cr.L.J. 1154. ............................ 17
7. Baldeo Singh v. State, 1982 Cri LJ 1087 ......................................................................... 17
8. Bhagat v. Bhagat (1994) S.C. 710 .................................................................................... 28
9. Bhai Sher Singh & Anr. v. Smt. Virinder Kaur, (1979), Cr. L.J. 493. ............................ 12
10. Bir pal Singh v. State of Rajasthan, 1981 Cri LJ 1000 ..................................................... 17
11. Bir pal Singh v. State of Rajasthan,(1981) Cr. L.J. 1000 . ............................................... 17
12. Bir Singh v. State of U.P., AIR 1978 SC 59 : 19789 Cri LJ 177 at 184, paras 15, 16 and
17....................................................................................................................................... 17
13. Bobbili Ramakrishna & Raju Yadav v. State of A.P. 2016. ............................................ 13
14. Chotey & Anr. v. Emperor , A.I.R. 1948 Allahabad 168. ................................................ 21
15. Collector,Jabalpur v.A.Y. jahagir, AIR 1971 M.P. 32...................................................... 16
16. Devanti Devi v. Rupan Janty, (2005) Jhar. 49. ................................................................. 28
17. Forest Range Officer v. P. M.ohammad Al., A.I.R. 1994 S.C. 120. ................................ 16
18. Harjinder Singh Alias Jinda v. Delhi Administration (1968) A.I.R. 867, (1968) S.C.R. (2)
246..................................................................................................................................... 23
19. Jai Prakash v. State (Delhi Administration)(1991) S.C.R. (1) 202, (1991) S.C.C. (2) 32. 23
20. Kailash v. State of M.P., A.I.R. 2007 SC 107 : (2006) 12 S.C.C. 667 ............................. 28
21. Kashmir Kaur and Anr. V. State of Punjab, A.I.R. 2013 S.C. 1039: (2013) Cr. L.J. 689 27
22. Keshub Mahindra v. State of MP,(1996) 6 S.C.C. 129. ................................................... 18
23. Las society of Indian v. Fertilizers and chemicals Travancore Ltd., AIR 1994 Ker 308. 17
24. M.G. Agarwal v. State of Maharashtra, (1963) 2 S.C.R. 405. .......................................... 22
25. Mohan Singh v. State of Punjab AIR 1975 SC 2161 ........................................................ 17

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26. Morcha v. The State Of Rajasthan (1979) A.I.R. 80, 1979 S.C.R. (1) 744. ..................... 23
27. Palaniswami v. State, AIR 1968 Bom 127:68 Bom LR 941:1967 Mah LJ 25:1968 Cri LJ
453 :1968 Lab LJ .............................................................................................................. 17
28. Pratibha Rant v. Suraj Kumar, 1985 Cr. L.J. 817. ............................................................ 14
29. Purushottam v. State of M. P. A.I.R. 1980 S.C. 1873: 1980 Cr. L.J. 1738 ..................... 17
30. Rajayyan v. State of Kerala, A.I.R. 1998 S.C. 121 : (1998) Cr. L.J. 1633. ...................... 28
31. Rajesh Bhatnagar v. State of Uttarkhand, (2012) 7 S.C.C. 91 : (2012) Cr. L.J. 3442 :
A.I.R. (2012) S.C. 2866 .................................................................................................... 26
32. Rajwant and Anr. v. State of Kerala, A.I.R. 1966 S.C. 1874. .......................................... 20
33. Ram Narayan v. State of Punjab, 1975 Cr. L.J. 1500 : A.I.R. 1975 SC 1727 : 1975
S.C.C. (Cr.) 571 ................................................................................................................ 17
34. Ram Niwas & Bhanwar Lal v. State of Rajasthan 2004(1) CCC 582 ( Raj. ) HC. .......... 19
35. Rampal Singh v. State Of U.P, 2012 Cri LJ 3765. ........................................................... 20
36. S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27) ........................................... 16
37. Sahae Rae v. State of West Bengal 1873 (3) Cal HC. ...................................................... 18
38. Saleem Khan And Anr. v. State Of J. And K. 1997 CriLJ 2518. ..................................... 23
39. State of Rajasthan v. Waktong (2007) 3 R.C.R. (Cr.) 331 S.C......................................... 19
40. Suraj Singh v. State Of U.P 2008(2) ALD(Cri)301. ......................................................... 21
41. Surajpal Singh v. State, (1952) S.C.R. 20......................................................................... 22
42. Takahaji Hiraji v. Thakore Kubersing Chamansing and Ors 2001 (2) ACJ 624 (SC). .... 18
43. Thakore Tejaji Devaji and 4 ors. v. State Of Gujarat, MANU/GJ/8154/2006. ................ 22
44. Vinod Kumar Sethi v. State of Punjab, AIR 1982, P.H. 372. ........................................... 15
45. Virsa Singh v. State of Punjab , AIR 1958 SC 465. ......................................................... 20
46. Virsa Singh v. The State Of Punjab (1958) A.I.R. 465. ................................................... 23

BOOKS REFERRED

 C.D. Field, Expert Evidence, 4thEdn.,Delhi Law House, Delhi, 2006

 John A. Andrews & Michael Hirst, Criminal Evidence (2nd Edition, Sweet & Maxwell
Ltd., 1992, London)
 K.D. Gaur, Criminal Law and Criminology (Deep & Deep Publications Pvt. Ltd., 2002,
New Delhi)

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 M. Monir, Law of Evidence, Vol (1),14thEdn., Universal Law Publishing Co., New Delhi,
2008

 N.D. Basu, Indian Penal Code 9th Ed., Ashoka Law House, New Delhi, 2004

 P.C. Banerjee, Criminal Trial & Investigation (4th Edition, Orient Publishing Company,
2007, New Delhi)
 R.Gopal, Code of Criminal Procedure (20th Edition, Lexis NexisButterworths, 2005,
New Delhi)
 R.K. Nelson, Indian Penal Code (9th Edition, Lexis NexisButterworths, 2003, New
Delhi)
 R.P. Kathuria, Law of Crimes and Criminology, Vol.3, 2nd Ed., Vinod Publications (P)
Ltd, Delhi, 2007.

 R.P.Kathuria, Law of Crimes and Criminology (2nd Edition, Vinod Publications, 2007,
Delhi)
 Ratanlal & Dhirajlal, Indian Penal Code, Lexis Nexis Buttersworth, Nagpur

 Ratanlal & Dhirajlal, Law of Crimes (26th Edition, Bharat Law House, 2007, New Delhi)
 Ratanlal & Dhirajlal, The Indian Penal Code (31st Edition, Wadhwa& Company, 2006,
Nagpur)
 Shrikant Bhatt, Principles and Practices of Criminal Law, 1stEdn, Snow White
Publications, Mumbai, 2009

 Sir John Woodroffe & Syed Amir Ali, Law of Evidence (17th Edition, Butterworths,
2001, New Delhi)
 Vinod Nijhawan, Better Criminal Reference (2nd Edition, Vinod Publications Pvt. Ltd.,
2008, New Delhi)
 Woodroofe, Commentaries on Code of Criminal Procedure (2nd Edition, Law Publishers
Pvt. Ltd., 2005, Allahabad)

DICTIONARY REFERRED

1. Aiyar, K.J., Judicial Dictionary, (New Delhi: Butterworths India, 13th edition, 2001).
2. Black, Henry Campbell, Black’s Law Dictionary, (St. Paul, Minn: West Publishing
Company, 6th edition, 1990).
3. Chandrachur Y.V Justice, Law Lexicons.

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4. Findlaw’s Dictionary of Law.

5. Hornby A.S., Oxford Advanced Learner’s Dictionary, (Oxford: Oxford University Press,
5th edition, 1997).
6. Webster's Third New International Dictionary.

STATUES REFERRED

1. Constitution of India, 1950.

2. Indian Penal Code, 1860.
3. Evidence Act, 1872.
4. Code of Criminal Procedure, 1973.
URLs REFERRED

1. http://www.altavista.com
2. http://www.helplinelaw.com/bareact/index.php?dsp
3. http://www.Indialawinfo.com/bareacts/company/html
4. http://www.Indiancourts.nic.in/codemore.htm
5. http://www.indlaw.com
6. http://www.judis.nic.in
7. http://www.lexsite.com
8. http://www.lfhri.org
9. http://www.manupatra.com/lgsearch/htm
10. http://www.transperanceinternational.org

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LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. All. Allahabad
3. Anr. Another
4. AP Andhra Pradesh
5. Art. Article
6. Cal. Calcutta
7. CWN Calcutta Weekly Notes
8. Del. Delhi
9. Eg. Example
10. Govt. Government
11. Guj. LR. Gujarat Law Reporter
12. HC High Court
13. ILR Indian Law Reporter
14. J&K Jammu & Kashmir
15. Ker. Kerala
16. Ld. Learned
17. Mad. Madras
18. Mah. LJ Maharashtra Law Journal
19. MP LJ Madhya Pradesh Law Journal
20. MUB Myanmar Unity Bank
21. NCT National Capital Territory
22. Ors. Others
23. P&H Punjab and Haryana
24. para. Paragraph
25. S. Section
26. S.C.C. Supreme Court Cases
27. Vol. Volume

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STATEMENT OF JURISDICTION

THE APPELLANT HAS APPROACHED THE HON’BLE HIGH COURT OF RAJASTHAN PURSUANT TO
THE DECISION GIVEN BY THE COURT OF SESSION. THE COURT’S JURISDICTION IS INVOKED

UNDER SECTION 3741 OF THE CODE OF CRIMINAL PROCEDURE, 1973. THE RESPONDENT WILL

ACT IN ACCORDANCE WITH THE FINDINGS AND DECISION OF THE COURT.

1
The Code of Criminal Procedure, 1973, No. 2, Act of Parliament, 1974, Section 374 – Appeals from convictions
1. Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction
may appeal to the Supreme Court.
2. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial
held by any other Court in which a sentence of imprisonment for more than seven years [has been
passed against him or against any other person convicted at the same trial; may appeal to the High
Court.
3. Save as otherwise provided in Sub-Section (2), any person,-
a. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the
first class or of the second class, or
b. sentenced under section 325, or
c. in respect of whom an order has been made or a sentence has been passed under section 360 by any
Magistrate, may appeal to the Court of Session.

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STATEMENT OF FACTS

The counsel for the appellant respectfully showeth:

-I-
 Background: Raj Kumar was running a successful property dealing business in Kuru,
Rajasthan. In year 2011, he got married to Malini. The marriage was solemnized in Kuru. After
their marriage, the couple started living together and a daughter was born out of the said wedlock
in 2012. In September, 2013, Raj Kumar told Malini that he had suffered major loss in business
and was in dire need of money. Malini after hearing him voluntarily offered to sell the gold
which was kept safe in a bank locker jointly accessed by both.
-II-
 The Gold Ornaments and the demand: The said gold ornaments and other gifts were gifted to
her by her parents, in-laws and other relatives from both the sides. Raj Kumar did not agree to
Malini’s suggestion. He rather suggested that she should approach her parents and procure 20
lakhs from them. However, Malini expressed her reluctance towards such a move and after two
days told him that she chose not to approach her parents with such a demand. Upon hearing this,
Raj Kumar got agitated and kept on insisting that she must speak with her parents and demand
the money. Malini one day inquired about the status of business, to which Raj Kumar replied
with indifferent answers and told her that since she has not agreed to his proposal, thus, she has
no right to inquire about it.
-III-
 The Fight: Next day, Malini decided to open the locker on her own and sell the gold. After
reaching the bank, she found that five months ago i.e. on 07/07/2013, most of the gold ornaments
were removed from the locker by Raj Kumar, as he too has an access to it. Upon learning this,
she was dismayed and shocked. She got back and confronted Raj Kumar about the same. He told
her that since it was a joint locker and most of the ornaments at the time of the marriage were
given to her by his parents, therefore, he had an equal right over the said property.
-IV-
 The Stridhan Case: Disappointed by the said events, Malini approached a law consultancy firm.
She was advised that the gold ornaments come within the purview of Stridhan. The Family Court
gave a decision which was in favour of husband relying upon the following facts that bank locker
being a joint locker could be operated by either of them and there was sufficient evidence to
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suggest that after selling the ornaments, the husband used the money for stabilizing business
which was again in the interest of the family. Aggrieved by the decision of the Family Court,
Malini filed an appeal with the High Court of Rajasthan.
-V-
 The Death: In 2015, both Raj Kumar and Malini along with their daughter, decided to spend
Durga Pooja vacations in a hill station with the objective to have reconciliation, to sort out their
differences. They were staying in a guest house accompanied by, Rekha and her husband,
Vikram. On the night of 10/10/2015, at around 2:00 AM, they heard some noise coming from
Malini and Raj Kumar’s room. The door of their room was broke open and Malini was found
burning in flames. Raj Kumar and their daughter were found unconscious. After this, a statement
was given by Malini wherein she said that her husband had tried to burn her by pouring petrol.
-VI-
 The Dying Declaration: In the hospital, Malini gave another statement as second dying
declaration in the presence of doctors and police personnel on guard that she herself had poured
petrol on her body and had set herself on fire. Next morning, due to 80% burns on her body,
Malini succumbed to her injuries and died. Her husband and daughter regained consciousness
and informed to the authorities that both of them had consumed milk after dinner, offered by
Malini, and got unconscious.
-VII-
 The Case: The police registered the case. Both contradictory detailed descriptions of dying
declarations were part of the police report. The investigating officer in the final police report
mentioned that Raj Kumar had himself consumed sleeping pills and made her daughter do the
same. Since he was habitual of taking sleeping pills, he had enough control over his body to
carry the activity of pouring petrol on Malini and set her on flames before finally falling
unconscious due to the effect of pills.
-VIII-
 The Present Position: The Court of Session gave life imprisonment to Raj Kumar under section
302, 304-B and 498-A of Indian Penal Code, 1860 , 1860. The decision of the Court of Session
was challenged by Raj Kumar, the accused in the High Court of Rajasthan. The High Court
clubbed both the appeals, one by Malini based on the contention of Stridhan and other by Raj
Kumar.

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ISSUES RAISED

1. WHETHER THE GOLD ORNAMENTS RECEIVED AT THE TIME OF NUPTIAL FIRE COME
UNDER THE PURVIEW OF STRIDHAN?

2. WHETHER THERE IS ANY EVIDENTIARY VALUE OF EXPERT OPINION AND MEDICAL

REPORT. CAN AN ACCUSED BE PUNISHED ON THE BASIS OF MULTIPLE DYING
DECLARATIONS?

3. WHETHER THE JUDGMENT OF SESSIONS COURT MAKING THE APPELLANT LIABLE FOR
THE OFFENCE OF MURDER UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860 IS
CORRECT OR NOT?

4. WHETHER THE ACCUSED CAN BE PUNISHED UNDER SECTION 304-B AND 498-A OF THE
INDIAN PENAL CODE, 1860?

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SUMMARY OF ARGUMENTS

1. WHETHER THE GOLD ORNAMENTS RECEIVED AT THE TIME OF NUPTIAL FIRE COME
UNDER THE PURVIEW OF STRIDHAN?

It is humbly submitted before the hon’ble court that the family court has erred in giving the
judgment in favor of the appellant. Firstly, the gold ornaments received at the time of nuptial fire
come under the purview of stridhan. Secondly, neither the husband, nor the son, nor the father,
nor the brother, has power to use or to alien the legal property of a woman. So the gold
ornaments received at the time of nuptial fire come under the purview of stridhan and the
appellant shall be punished for illegally taking it out of the custody of the deceased. In the instant
case, we are mainly concerned with that part of stridhan which is the absolute property of
married women during coverture.

2. WHETHER THERE IS ANY EVIDENTIARY VALUE OF EXPERT OPINION AND MEDICAL

REPORT. CAN AN ACCUSED BE PUNISHED ON THE BASIS OF MULTIPLE DYING
DECLARATIONS?

It is humbly submitted before the hon’ble court that the Judge is not expected to be an expert in
all the fields-especially where the subject matters involves technical knowledge. He is not
capable of drawing inference from the facts which are highly technical. In these circumstances
he needs the help of an expert- who is supposed to have superior knowledge or experience in
relation to the subject matter. If there is a dearth of direct evidence and in certain cases where
corroboration is required for already existing evidence, the expert opinion is sought and can be
used as evidence. So there is no evidentiary value of expert opinion and medical report and the
accused can be punished on the basis of multiple dying declarations.

3. WHETHER THE JUDGMENT OF SESSIONS COURT MAKING THE APPELLANT LIABLE FOR
THE OFFENCE OF MURDER UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860 IS
CORRECT OR NOT?

It is humbly submitted before the Hon’ble court that in the instant case the appellant is liable for
the offence of murder under section 300 of the Indian penal code, 1860 and should be punished
under section 302 because the elements to constitute a crime of Murder under section 300 of

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Indian Penal Code are been fulfilled in the present case so the appellants are liable for the
offence of Murder of Malini. It has been clearly stated in the dying declaration of the deceased
that the appellant has poured petrol on her body and set her on fire which resulted in the death of
the respondent. So it is humbly prayed that the decision of the learned session judge is up to the
mark and the appellant shall be held guilty for the offence of murder of Malini.

4. WHETHER THE ACCUSED CAN BE PUNISHED UNDER SECTION 304-B AND 498-A OF THE
INDIAN PENAL CODE, 1860?

It is humbly submitted before the honorable court that the appellant shall be accountable under
Section 304-B and 498-A of the Indian Penal Code, 1860. Section 304B of the Indian Penal
Code states that “Whether the death of a women is caused by any burns or bodily injury occurs
otherwise then under normal circumstances within seven years of her marriage and it is shown
that soon before her death she was subjected to cruelty or harassment by her husband or any
relative or her husband for or in connection with any demand for dowry, such death shall be
called “Dowry death”, and such husband or relative shall be deemed to have caused her death.”

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BODY OF PLEADING

4. WHETHER THE GOLD ORNAMENTS RECEIVED AT THE TIME OF NUPTIAL FIRE COME

UNDER THE PURVIEW OF STRIDHAN?

It is humbly submitted before the hon’ble court that the family court has erred in giving the
judgment in favor of the appellant. Firstly, the gold ornaments received at the time of nuptial fire
come under the purview of stridhan. Secondly, neither the husband, nor the son, nor the father,
nor the brother, has power to use or to alien the legal property of a woman. So the gold
ornaments received at the time of nuptial fire come under the purview of stridhan and the
appellant shall be punished for illegally taking it out of the custody of the deceased.

In the instant case, we are mainly concerned with that part of stridhan which is the absolute
property of married women during coverture. Sir Gooroodas Banerjee in 'Hindu Law of
Marriage and Stridhana' while describing the nature of stridhan quoted Katyayana thus:

"And if any of them shall consume such property against her own consent he shall be compelled
to pay its value with interest to her, and shall also pay a fine to the king... Whatever she has put
amicably into the hands of her husband afflicted by disease, suffering from disease, or sorely
pressed by creditors, he should repay that by his own freewill. "

Further, According to the 1977 Chandigarh Law Report 212 which fuses to return
the stridhan property of wife, it will be open to the wife to recover the same by properly
constituted suit. The sections nowhere provide that the concept of stridhan is abolished or that a
remedy under the criminal law for breach of trust is taken away.

In the case of Bhai Sher Singh & Anr. v. Smt. Virinder Kaur,2 it was very rightly pointed out by
the High Court that Section 27 of the Marriage Act merely provides an alternate remedy to the
wife to bring a properly constituted suit in respect of the stridhan property which the husband
refused to return. Thus, it is clear that Section merely provides for an alternate remedy and does
not touch or affect in any way the Criminal liability of the husband in case it is proved that he

2
Bhai Sher Singh & Anr. v. Smt. Virinder Kaur, (1979), Cr. L.J. 493.

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has dishonestly misappropriated that stridhan of his wife. It cannot also be spelt out from any
textbook or the sastric law of the Hindus that the two Acts mentioned above take away the
stridhan right of a woman-at the most these Acts merely modify the concept of stridhan. It may
be useful to refer to certain pertinent observations in the aforesaid case.

Coming back to the theory of matrimonial home and the stridhan becoming a joint property of
the two spouses, the logical effect of the observation made by the High Court is that once a
woman enters her matrimonial home she completely loses her exclusive stridhan by the same
being treated as a joint property of the spouses. In other words, if this view is taken in its literal
sense the consequence would be to deprive the wife of the absolute character and nature of her
stridhan and make the husband a co-owner of the same - such a concept is neither contemplated
nor known to Hindu law of stridhan, nor does it appeal to pure common sense. It is impossible to
uphold the view that once a married woman enters her matrimonial home her stridhan property
undergoes a vital change so as to protect the husband from being prosecuted even if he
dishonestly misappropriates the same. For instance, properties like jewellery, clothing, cash, etc.
given by her parents as gifts cannot be touched by the husband except in very extreme
circumstances, viz., where the husband is in imprisonment or is in serious distress. Even then the
religion and the law enjoins that the husband must compensate the wife and if he cannot do so,
he must pay fine to the King which means that the husband would` be liable to penal action
under the present law of the land.

In the instant case, there is also no question of the wife constituting herself a partner with her
husband merely by allowing him to keep the articles or money in his custody or in a joint bank
locker. There is neither any pleading nor any allegation that after her marriage, the respondent
transferred all her properties to her husband for carrying on the business. Thus, in our opinion, it
cannot be said that a bare act of keeping stridhan property in the joint locker constitutes a
partnership and, therefore, a criminal case under Section 406 of Indian Penal Code, 1860 is not
maintainable3.

3
Bobbili Ramakrishna & Raju Yadav v. State of A.P. 2016.

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It is not necessary for us to multiply cases on this point on which there does not appear to be any
controversy. We have already pointed out that the stridhan of a woman is her absolute property
and the husband has no interest in the same and the entrustment to him is just like something
which he wife keeps in a Bank and can withdraw any amount whenever she likes without any
hitch or hindrance and the husband cannot use the stridhan for his personal purposes unless he
obtains the tacit consent of his wife.

The learned Family Court completely ignored to consider the allegation about the charge
of Section 406 IPC leveled against the accused persons. The property which was gifted to the
wife applicant continued to her Stridhan property. If the Stridhan property is not returned to the
lady, she was justified in launching a prosecution under Section 406 INDIAN PENAL CODE,
1860 . The question about the entrusting of Stridhan to the husband or in law was considered by
the Supreme Court in Pratibha Rani v. Suraj Kumar4. The Supreme Court was considering a
case in which a complaint under Sections 403 and 406 INDIAN PENAL CODE, 1860 filed on
behalf of the wife for misappropriation of the Stridhan property against the husband. The
prosecution was quashed in a proceeding under Section 482 Cr. P.C. The Supreme Court of India
was pleased to observe that it was not proper to quash the proceedings in the complaint case by
the High Court unless the proper opportunity to prove the case of the wife about the
misappropriation of the Stridhan property was given to her. It is now well settled
that Stridhan property entrusted to the husband continues to be woman's Stridhan property and
the husband is bound to return the same when demanded. This aspect of the matter was not at all
considered by the Family Court in the present case.

It is humbly stated before the Honorable Court that the term ‘Stridhan’ is the conjunction of two
words, ‘stri’ i.e. woman and ‘dhan’ i.e. property and thus conjunctively these two words imply
that property over which a woman has an absolute ownership.

The Hindu Succession Act, 1956, Section 14 (1) states that: “Any property possessed by a female
Hindu acquired before or after the commencement of this act shall be held liable by her as full
owner thereof and not as a limited owner.”

4
Pratibha Rant v. Suraj Kumar, 1985 Cr. L.J. 817.

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Further in the Case of Vinod Kumar Sethi v. State of Punjab,5 the Punjab High Court has given
an important decision with respect of ‘Stridhan’. According to this High Court whatever has
been received by a bride in marriage or whatever has been gifted to her falls under ‘Stridhan’.
The court divided the gifts given to her under three heads: .

 Those items which are given to the bride for her exclusive use.

 Those which are to be used by her and her husband jointly

 Those which are to be used by her husband and in laws over the first category she has
exclusive right and she the exclusive owner thereof; over those coming under the
second category, the court’s view was that by saying that both the spouses have the
right to use it will not extinguish the right of ownership of the wife even then. In case
the marriage breaks or the marriage is dissolved then too the wife has the right to get
back those items and she can keep them in her exclusive possession. Thus according
to the above decision all such gifts and presentations which fall under the first two
categories are termed as ‘Stridhan’. The property intended for the joint use are under
joint control and custody so long their material life subsist.

Therefore it is humbly submitted that the Gold ornaments received at the time of Nuptial Fire
comes under the purview of ‘Stridhan’ and hence there was no right of Appellant to sell the gold
ornaments without the prior consent of the Malini. In the current case though the consent of
Malini was there but it was not prior to the selling of the Gold ornaments and her consent so
obtained was in the form of misrepresentation and concealment of the fact that the Gold
ornaments proven to be ‘Stridhan’ had already been sold in the absence of Malini’s knowledge
thus breaching her trust.

5
Vinod Kumar Sethi v. State of Punjab, AIR 1982, P.H. 372.

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5. WHETHER THERE IS ANY EVIDENTIARY VALUE OF EXPERT OPINION AND

MEDICAL REPORT. CAN AN ACCUSED BE PUNISHED ON THE BASIS OF
MULTIPLE DYING DECLARATIONS?

It is humbly submitted before the hon’ble court that the Judge is not expected to be an expert in
all the fields-especially where the subject matters involves technical knowledge. He is not
capable of drawing inference from the facts which are highly technical. In these circumstances
he needs the help of an expert- who is supposed to have superior knowledge or experience in
relation to the subject matter. If there is a dearth of direct evidence and in certain cases where
corroboration is required for already existing evidence, the expert opinion is sought and can be
used as evidence.

2.1 Whether there is any evidentiary value of an expert opinion or not?

Expert evidence is covered under Section 45-51 of Indian Evidence Act, 1972. The Section 45 of
the Act says that “An expert is one who has acquired special knowledge, skill or experience in
any science art or trade profession; such knowledge may have been acquired by practice,
observation or careful studies. A person having special knowledge of the market value of land by
experience is an expert.6

In the case of S. Gopal Reddy v. State of A.P.7 the hon’ble Supreme Court held that “Expert
evidence is opinion evidence and it can’t take the place of substantive evidence. It is a rule of
procedure that expert evidence must be corroborated either by clear direct evidence or by
circumstantial evidence. It is not safe to rely upon this type of evidence without seeking
independent and reliable corroboration.”

Further in the case of Forest Range Officer v. P. Mohammad Al.,8 it was held by the hon’ble
Supreme Court that the Expert opinion was only the opinion evidence. It does not help court in

6
Collector,Jabalpur v.A.Y. jahagir, AIR 1971 M.P. 32.
7
S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27)
8
Forest Range Officer v. P. M.ohammad Al., A.I.R. 1994 S.C. 120.

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interpretation. In the case of Mohan Singh v. State of Punjab9 it was held that if the injuries are
such that they cannot be caused in manner alleged by the prosecution, the prosecution case fails.
An expert’s evidence is not confined to what actually took place, but covers his opinions on
facts, e.g., although a doctor may not have attended the victim, he can still give his opinion as to
the cause of the victim’s death or the effect of a certain poison.

Further in the case of Palaniswami v. State hon’ble Supreme Court held that “Expert’s opinion
must be supported by reasons and it is the reason which is important in assessing the merit of the
opinion”10. Auxiliary to it, in the case of Las society of Indian v. Fertilizers and chemicals
Travancore Ltd. hon’ble Supreme Court held that “Expert opinion is not necessarily binding on
the court. The court also observed that the medical expert’s opinion is not always final and
binding”.11

Expert opinion becomes admissible only when the expert is examined as a witness in the court.
The report of an expert is not admissible unless the expert gives reasons for forming the opinion
and his evidence is tested by cross-examination by the adverse party.

Thus, from the above submissions it may be submitted that evidence of an expert is not a
substantive piece of evidence. The court does not consider it conclusive. Without independent
and reliable corroboration it may have no value in the eye of law.

2.2 Whether the appellant can be punished on the basis of Multiple Dying
Declaration?

It is humbly submitted before the hon’ble court that appellant should be held liable under section
300 of the Indian Penal Code, 1860 for the offence of Murder. The second dying declaration
given by Malini is totally admissible in the court of law as it has been given in proper soundness
of mind and this evidence shall be taken into proper consideration by the court to award the
sentence to the accused for committing the murder of Malini.

9
Mohan Singh v. State of Punjab AIR 1975 SC 2161., Ram Narayan v. State of Punjab, 1975 Cr. L.J. 1500 : A.I.R.
1975 SC 1727 : 1975 S.C.C. (Cr.) 571; Baldeo Singh v. State, 1982 Cr. L.J. 1087 ; Bir Singh v. State of U.P., A.I.R.
1978 S.C. 59. : 19789 Cr. L.J. 177 , ¶ 15, 16 and 17 ; Purushottam v. State of M. P. A.I.R. 1980 S.C. 1873: 1980
Cr. L.J. 1738 ; Bir pal Singh v. State of Rajasthan,(1981) Cr. L.J. 1000 .
10
Palaniswami v. State, AIR 1968 Bom. 127:68 Bom. L.R. 941:1967 Mah. L.J. 25:(1968) Cr. L.J. 453 :(1968) Lab.
L.J. 610. Awadesh v. state of M.P. A.I.R. 1988 S.C. 1158 :1988 Cr.L.J. 1154.
11
Las society of Indian v. Fertilizers and chemicals Travancore Ltd., AIR 1994 Ker 308.

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Section 300 of the Indian Penal Code, 1860 deals with offence of murder. This section for its
application requires evidence against the accused on the basis of which it would be said that the
accused had voluntarily caused such an act so as to cause the death of the deceased. Further, it
has been held that the evidence relied upon by the prosecution in support of the charges must
show that the concerned accused had committed the act complained of at least with the
knowledge that by such act he was likely to cause death of the victim.12

Furthermore it is evident from medical report that the Death of Malini was caused by burns
which proves the intention of the accused. Here in the present case the accused cannot take the
defense that he was not conscious at that time as it is clearly given in the police report that Raj
Kumar had himself consumed sleeping pills and made her daughter do the same. Since he was
habitual of taking sleeping pills, he had enough control over his body to carry the activity of
pouring petrol on Malini and set her on flames before finally falling unconscious due to the
effect of pills. His daughter, being a child, had already been unconscious due to the overdose of
sleeping pills. This point is supported by the case of Sahae Rae v. State of West Bengal13 in
which the accused struck a woman violently on her head and to ward off the blow her husband
intervened and that blow struck him. It was held that the accused had committed hurt on the
husband under circumstances of sufficient aggravation to bring the offence within the definition
of murder.

In the case of Takahaji Hiraji v. Thakore Kubersing Chamansing and Ors14., it was held that
conviction was proper under Section 300 Indian Penal Code, 1860 on the basis of victim’s
statement corroborated by eye witnesses and medical reports.

In the instant case, the accused caused death. Since he was habitual of taking sleeping pills, he
had enough control over his body to carry the activity of pouring petrol on Malini and set her on
flames before finally falling unconscious due to the effect of pills. His daughter, being a child,
had already been unconscious due to the overdose of sleeping pills. This fact is ascertained by
the victim’s statement corroborated by eye witness’s account and the dying declaration of
Malini. It is most humbly submitted before this Hon'ble court that the immediate dying

12
Keshub Mahindra v. State of MP,(1996) 6 S.C.C. 129.
13
Sahae Rae v. State of West Bengal 1873 (3) Cal. H.C.
14
Takahaji Hiraji v. Thakore Kubersing Chamansing and Ors, (2001) 2, A.C.J. 624 (S.C.).

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declaration in reference to evident death condition of Malini cannot be ignored, whatsoever. It

clearly mentions the role of the accused in the commission of the offence. It is evident from the
statements made by Malini that the accused poured petrol on her and set her ablaze before finally
falling unconscious due to the effect of pills. The declaration pronounces basic crux of the
incident and mentions the intention of the accused.

In a judgment of Supreme Court in the case of State of Rajasthan v. Waktong15, the apex court
has held that:

“The conviction of an accused can be based solely on the dying declaration without any
corroboration. It has been further mentioned that great solemnity and sanctity is attached
to the words of a dying man because a person on the verge of death is not likely to tell lie
or to concoct a case so as to implicate an innocent person. Furthermore the deceased did
not have adequate time that the declaration was the result of tutoring, prompting or a
product of imagination.”

Thus, in the instant case the conviction of the accused can be based solely on the statement made
by the deceased because on the minute of her death, she was not in a condition to manipulate the
facts. Her proclamations are true in real sense and are not subject to tutoring, prompting or a
product of imagination.

Another important point to mention is that the injury suffered by the victim need not be minor or
superficial. To hold the person liable under section 300 of the Indian Penal Code, 1860, it is not
necessary that the injury caused should be fatal. The act in itself is self-explanatory as to the
conduct of the accused. The same was held in the case of Ram Niwas & Bhanwar Lal v. State of
Rajasthan16.

Hence it is proved by the above stated facts and cases cited that the dying declaration given by
the victim is totally admissible in the court of law because on the minute of his death, she was
not in a condition to manipulate the facts. Her proclamations are true in real sense and are not
subject to tutoring, prompting or a product of imagination.

15
State of Rajasthan v. Waktong (2007) 3 R.C.R. (Cr.) 331 S.C.
16
Ram Niwas & Bhanwar Lal v. State of Rajasthan (2004)1 C.C.C. 582 ( Raj.) H.C.

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3 WHETHER THE JUDGMENT OF SESSIONS COURT MAKING THE APPELLANT LIABLE FOR
THE OFFENCE OF MURDER UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860 IS
CORRECT OR NOT?

It is humbly submitted before this Hon’ble court that in the instant case the appellant is liable for
the offence of murder under section 300 of the Indian penal code, 1860 and should be punished
under section 302 because the elements to constitute a crime of Murder under section 300 of
Indian Penal Code, 1860 have been fulfilled in the present case so the appellants are liable for
the offence of Murder of Malini. It has been clearly stated in the dying declaration of the
deceased that the appellant has poured petrol on her body and set her on fire which resulted in
the death of the respondent. So it is humbly prayed that the decision of the learned session judge
is up to the mark and the appellant shall be held guilty for the offence of murder of Malini.

In Ajit Singh v. State of Punjab17 , the Hon’ble Supreme Court held that “in order to hold
whether an offence would fall under Section 302 of the Indian Penal Code, 1860 the courts have
to be extremely cautious in examining whether the same falls under Section 300 of the Code or
not.” So it is necessary to first prove that the murder has been done under section 300 of the
Indian Penal Code, 1860.18

3.1. Applicability of section 300 of the Indian Penal Code, 1860

It is humbly submitted before this hon’ble court that Section 302 of the Indian Penal Code, 1860
prescribes punishment for committing the murder. In case of Rampal Singh v. State Of
U.P.19Abdul Waheed Khan & Ors v. State of A.P.20, Virsa Singh v. State of Punjab21 and
Rajwant and Anr. v. State of Kerala22 it has been said and stated by various judges that to
constitute a case of murder a person shall do an act:

1. With the intention of causing death, or;

17
Ajit Singh v. State of Punjab, (2011) 9 S.C.C. 462.
18
Ratanlal & Dhirajlal, The Indian Penal Code 32 ( Y.V. Chandrachud & V.R. Manohar ed.Wadhwa & Company
2008) (1896).
19
Rampal Singh v. State Of U.P, (2012) Cr. L.J. 3765.
20
Abdul Waheed Khan & Ors v. State of A.P. , (2002) 7 S.C.C. 175.
21
Virsa Singh v. State of Punjab , A.I.R. 1958 S.C. 465.
22
Rajwant and Anr. v. State of Kerala, A.I.R. 1966 S.C. 1874.

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2. With the intention of causing such bodily injury as is likely to cause death, or ;
3. With the knowledge that such an act is likely to cause death.23

In the instant case it has been clearly shown that when Raj Kumar had himself consumed
sleeping pills and made her daughter do the same. Since he was habitual of taking sleeping pills,
he had enough control over his body to carry the activity of pouring petrol on Malini and set her
ablaze before finally falling unconscious due to the effect of pills. His daughter, being a child,
had already been unconscious due to the overdose of sleeping pills.

3.1.1. That the requisites of the clause (1) of murder are fulfilled in the circumstances
of the instant case, thus it incurs liability under this clause.

It is submitted that the first clause to be proved for making the person liable for murder is that
the person has done the act with the intention of causing death. It is to be noted that accused had
strenuous relationship with the deceased and was also undergoing a case for stridhan against the
respondent. If the respondent would have won the case the accused shall be liable to return all
the ornaments and further a penalty can be charged against the same. This is a clear intention that
if Malini would have died then, the accused shall not be liable to any penalty in that case. Now, it
has been clearly stated in the facts of the case that when Raj Kumar and Malini went out for
vacations at the hill station Raj Kumar had himself consumed sleeping pills and made her
daughter do the same. Since he was habitual of taking sleeping pills, he had enough control over
his body to carry the activity of pouring petrol on Malini and set her on flames before finally
falling unconscious due to the effect of pills. His daughter, being a child, had already been
unconscious due to the overdose of sleeping pills. This was a planned murder as all the
arrangements were sought out by the accused being the head of his family.
It has been clearly stated in the case of Suraj Singh v. State Of U.P24 and, Chotey & Anr. v.
Emperor25 the Hon’ble Supreme Court said that:

"…….Where the murder was committed at the time when the offence was being
committed by the person and there is evidence that the accused intentionally does
such an act to commit the offence or did the offence before the offence was

23
Ratanlal & Dhirajlal, The Indian Penal Code 33 ( Y.V. Chandrachud & V.R. Manohar ed.Wadhwa & Company
2008) (1896)
24
Suraj Singh v. State Of U.P 2008(2) A.L.D.(Cr.)301.
25
Chotey & Anr. v. Emperor , A.I.R. 1948 Allahabad 168.

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committed, S. 300 would apply. Section 302 is only brought in to operation when
circumstances amounting to abetment of a particular crime have first been
proved, and then the presence of the accused at the commission of crime is proved
in addition. Section 302 deals with the case where there has been the crime of
murder but where also there has been actual commission of the crime abetted and
the abettor has been present thereat. It is necessary first to make out the
circumstances which constitute murder, so that if absent, the accused would be
liable to be punished as an murderer, and then to show that he was also present
when the offence was committed.”

Further in case of Thakore Tejaji Devaji and 4 ors. v. State Of Gujarat26, M.G. Agarwal v. State
of Maharashtra27, Surajpal Singh v. State28, Ajmer Singh v. State of Punjab29 the courts have
observed that:

“Facts shown for conviction under Section 302 of the INDIAN PENAL CODE,
1860 are true and important and ld. Trial Judge should have convicted them byt.
Reasons assigned for convicting them for the offences punishable under Section
302 R/w Section 114 of INDIAN PENAL CODE, 1860 are logical and acceptable
in the eyes of law and in the background of facts emerging on record.”

So, it is proved by the above stated facts and cases cited that the appellant intentionally did the
act of pouring petrol and setting fire of the respondent in order to commit the offence of murder
of the respondent.

4.1.2. That the requisites of the clause (2) of murder are fulfilled in the circumstances
of the instant case, thus it incurs liability under this clause.
It is submitted that the second clause to be proved for making the person liable for murder is that
the person has done the act With the intention of causing such bodily injury as is likely to cause
death.30 Now, it has been clearly stated in the facts of the case that Raj Kumar poured petrol on
Malini and burnt her. The medical report also says the same that the death was due to the burns.
Now in the dying declaration of the respondent she has clearly stated that Raj Kumar killed her
by pouring petrol on her body and setting her on fire thus causing such bodily injury which is
sufficient to cause death of a person. So it is proved that the appellant has caused such a bodily
injury to the respondent with the intention as is likely to cause the death of the respondent.

26
Thakore Tejaji Devaji and 4 ors. v. State Of Gujarat, MANU/GJ/8154/2006.
27
M.G. Agarwal v. State of Maharashtra, (1963) 2 S.C.R. 405.
28
Surajpal Singh v. State, (1952) S.C.R. 20.
29
Ajmer Singh v. State of Punjab (1953) S.C.R. 418.
30
R.P.Kathuria, Law of Crimes and Criminology (2nd Edition, Vinod Publications, 2007, Delhi).

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In the case of Virsa Singh v. The State Of Punjab31, the supreme court defined the bodily injury
in case of murder as:

"If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death." It was said that the intention that the section requires must be related, not
only to the bodily injury inflicted, but also to the clause, "and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death."

So it is proved that the appellant has cause such a bodily injury to the respondent with the
intention as is likely to cause the death of the respondent.

4.1.3. That the requisites of the clause (3) of murder are fulfilled in the circumstances of the
instant case, thus it incurs liability under this clause.

It is humbly submitted that the bodily injury which was sufficient to cause death in the ordinary
course of nature as section 300 Indian Penal Code, 1860 third clause states, "If it is done with the
intention of causing bodily injury to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death”

The court in the case of Jai Prakash v. State (Delhi Administration)32; Harjinder Singh Alias Jinda v.
Delhi Administration33; Morcha v. The State Of Rajasthan34; Saleem Khan and Anr. v. State Of J. And
K.35 the Supreme Court has held that the prosecution must prove the following before it can bring
a case under s. 300 Indian Penal Code, 1860 third clause.

1. It must establish, quite objectively, that a bodily injury is present.

2. The nature of the injury must be proved; these are purely objective investigations.
3. It must be proved that there was an intention to inflict that particular injury, that is to
say, that it was not accidental or unintentional, or that some other kind of injury was
intended.

31
Virsa Singh v. The State Of Punjab (1958) A.I.R. 465.
32
Jai Prakash v. State (Delhi Administration)(1991) S.C.R. (1) 202, (1991) S.C.C. (2) 32.
33
Harjinder Singh Alias Jinda v. Delhi Administration (1968) A.I.R. 867, (1968) S.C.R. (2) 246.
34
Morcha v. The State Of Rajasthan (1979) A.I.R. 80, 1979 S.C.R. (1) 744.
35
Saleem Khan And Anr. v. State Of J& K. (1997) Cr.L.J. 2518.

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4. It must be proved that the injury of the type just described made up of the three
elements set out above was sufficient to cause death in the ordinary course of
nature.36

Now in the instant case this part of the enquiry is purely objective and inferential and has nothing
to do with the intention of the offender. The third clause of S. 300 Indian Penal Code, 1860
consists of two parts. Under the first part it must be proved that there was an intention to inflict
the injury that is found to be present and under the second part it must be proved that the injury
was sufficient in the ordinary course of nature to cause death. The words "and the bodily injury
intended to be inflicted" are merely descriptive. This entire means that it is not enough to prove
that the injury found to be present is sufficient to cause death in the ordinary course of nature; it
must in addition be shown that the injury found to be present was the injury intended to be
inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of
inference or deduction from the proved facts about the nature of the injury and has nothing to do
with the question of intention.

Hence it is proved that the appellant has fulfill all the three essential ingredients to constitute a
crime of murder under section 300 of the Indian Penal Code, 1860 and shall be made punishable
under section 302 of the Indian Penal Code, 1860.

36
T. Bhattacharyya, The Indian Penal Code 24 (Central Law Agency 2007) (1994).

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4 WHETHER THE ACCUSED BE PUNISHED UNDER SECTION 304-B AND 498-A OF THE INDIAN
PENAL CODE, 1860?

It is humbly submitted before the honorable court that the appellant shall be accountable under
Section 304-B and 498-A of the Indian Penal Code, 1860, 1860. Section 304B of the Indian
Penal Code, 1860 states that “Whether the death of a women is caused by any burns or bodily
injury occurs otherwise then under normal circumstances within seven years of her marriage and
it is shown that soon before her death she was subjected to cruelty or harassment by her husband
or any relative or her husband for or in connection with any demand for dowry, such death shall
be called “Dowry death”, and such husband or relative shall be deemed to have caused her
death.”

In the case of Mustafa Shahadal Shaikh v. State of Maharashtra37 hon’ble court held that:-

In order to convict an accused for the offence punishable under Section 304-B INDIAN PENAL
CODE, 1860 , the following essentials must be satisfied:

(i) The death of a woman must have been caused by burns or bodily injury or otherwise
than under normal death must have occurred within seven years of her marriage;

(ii) Soon before her death, the woman must have been subjected to cruelty or harassment
by her husband or any relatives of her husband;

(iii) Such cruelty or harassment must be for, or in connection with, demand for dowry.

4.1. The death of a woman must have been caused by burns or bodily injury or
otherwise than under normal circumstances

The expression “otherwise than under normal circumstances” means a death not taking place in
the course of nature and apparently under suspicious circumstances if not caused by burn or
bodily injury. These words apparently carry the meaning of natural death. It was held in case of
Kailash v. State of M.P.38, as concerned with the present case, the deceased was burnt alive by

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pouring petrol by her husband which is stated by her in her dying declaration which has been
recorded by Rekha.

4.2. Whether Dowry Death Has Been Caused U/S 304B Also Considering The
Section 498A?

It is humbly submitted before this Hon’ble court that in the present case dowry death has been
caused by the appellants and cruelty has been done to the respondent by the appellant. The main
element for proving a case to fall under section 304B is that the death should be caused within
seven years of the marriage as in the instant case the women died within seven years of her
marriage, so it is a case of dowry death as the main essential element is fulfilled. So, it is
submitted that the appellant is liable for causing dowry death as well as for the cruelty.

Section 304-B of the Indian Penal Code, 1860 states that “Whether the death of a women is
caused by any burns or bodily injury occurs otherwise then under normal circumstances within
seven years of her marriage and it is shown that soon before her death she was subjected to
cruelty or harassment by her husband or any relative or her husband for or in connection with
any demand for dowry, such death shall be called “Dowry death”, and such husband or relative
shall be deemed to have caused her death.”

The Supreme Court took occasion in Shanti v. State of Haryana to explain the ingredients of the
Section 304B. K. Jayachandra Raddy J. said; “A careful analysis of S.304B shows that this
section has the following essentials:

1. The Death of the Woman should be caused by burns or bodily injury or otherwise
than under normal circumstances39.

2. Such Death should have occurred within Seven years of her marriage.40

3. She must have been subjected to cruelty or harassment by her husband or any
relative of her husband.

39
Akula Ravinder v. State of A.P. , A.I.R. 1991 S.C. 1142:1991 SCC (C.R.) 990
40
Rajesh Bhatnagar v. State of Uttarkhand, (2012) 7 S.C.C. 91 : (2012) Cr. L.J. 3442 : A.I.R. (2012) S.C. 2866

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4. Such cruelty or harassment should be for or in connection in demand for

dowry.41

4.2.2. Application of Section 304 B

It is humbly submitted that to constitute a case under section 304B of the Indian Penal Code,
1870, the foremost requirements to prove a case under dowry death are the 2 conditions: Firstly,
the death is caused by burns or bodily injury or occurs otherwise than normal circumstances
within 7 years of marriage. Secondly, that she was subjected to cruelty or harassment by her
husband or any other relation immediately before her death in connection with demand for
dowry.

4.2.2.1.Death has not occurred within seven years.

It is a well settled law that for the purpose of Section 304-B, dowry death, the death of a woman
should take place within seven years of marriage for it to fall under the purview of Section 304B.
In the instant case the deceased and the appellant got married in 2011 and both the deceased and
appellant with their daughter born in 2012 from the same wedlock were living at village Kuru
district, Rajasthan. In October, 2015 the deceased died due to burns. So it is not disputed that the
death is occurred within seven years of marriage.

In this regard the High Court of MP has decided in the case of Rajesh Bhatnagar v. State of
Uttarkhand , that it is necessary for the respondent to lead such cogent and reliable evidence
which may prove conclusively that the death has been caused within 7 years of the marriage.
Hence this can be rightly said, this comes under the ambit of the provision of Dowry Death and
in the instant case also the death took place before 7 years of marriage.

Hence due to this ambiguity the accused persons deserve to be prosecuted under section 304B.

4.2.1.2 The death of a woman must have been caused by burns or bodily injury
or otherwise than under normal circumstances;

41
Kashmir Kaur and Anr. V. State of Punjab, A.I.R. 2013 S.C. 1039: (2013) Cr. L.J. 689

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The expression “otherwise than under normal circumstances” means a death not taking place in
the course of nature and apparently under suspicious circumstances if not caused by burn or
bodily injury. These words apparently carry the meaning of natural death. It was held in case of
Kailash v. State of M.P.42

As concern to the death in the present case it is being caused by the burning from Petrol which
being poured by the appellant as the declaration of the deceased has been recorded due to such
act only because there was no valid reason for the deceased to injure herself and also give such
declaration. An unnatural death is to be considered as murder unless otherwise proved.

The supreme court has observed that death “otherwise than in normal circumstances’ would
mean that the death was not in usual course but apparently under suspicious circumstances if it
was not caused by burn or bodily injury. Death of a woman by suicide occurring within 7 years
of marriage cannot be described as occurring in normal circumstances.43

4.2.1.3. Soon before her death, the woman must have been subjected to cruelty
or harassment by her husband or any relatives of her husband

In Bhagat v. Bhagat44, the Supreme Court defined mental cruelty as that conduct which inflicts
upon the other party such mental pain and suffering as would make it not possible for that party
to live with the other.

In Devanti Devi v. Rupan Janty45, the honorable court stated that cruelty should not always be of
such character as to cause danger to life or health but harm to or injury to health, reputation and
mental pain will also amount to cruelty.

As concerned in the present case, Malini was subjected to mental cruelty as she was insisted to
bring twenty lakh in the form of dowry from her home and also from time to time, she was made
to realize that her parents have not given the appellant enough at the time of marriage. They also
used to have heated arguments. She was also in dismay and shock when she got know that her

42
Kailash v. State of M.P., A.I.R. 2007 SC 107 : (2006) 12 S.C.C. 667; Akula Ravindra v, State of A.P. A.I.R. 1991
S.C. 1142
43
Rajayyan v. State of Kerala, A.I.R. 1998 S.C. 121 : (1998) Cr. L.J. 1633.
44
Bhagat v. Bhagat (1994) S.C. 710
45
Devanti Devi v. Rupan Janty, (2005) Jhar. 49.

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‘Stridhan’ was sold without any intimation to her. She was also rudely replied when she would
enquire about the status of the business out of unconditional concern and affection that she had
no right to enquire about it. She was in severe dismay because the way the appellant used to treat
her.

4.2.1.4 The Expression “Soon Before her death”

In the case of M. Srinivashu v. State of A.P.46 the expression ‘soon before her death’ used in the
substantive section 304-B, INDIAN PENAL CODE, 1860 and section 113-B of the Evidence Act
is present with the idea of proximity test. No definite period has been indicated and the
expression ‘soon before’ is not defined. The determination of the period which can come within
the term ‘soon before’ is left to be determined by the courts, depending upon facts and
circumstances of each case.

There is definitely a motive for the appellant to commit heinous crime. It has been brought on
record by way of documentary and oral evidence that there was a litigation between the deceased
and appellant pending in the Honorable High Court of Rajasthan for the unauthorized sale of
‘Stridhan’ by the appellant also being a reason for mental cruelty soon before her death.

4.2.1.5 Cruelty in relation to Dowry Death.

Section 498A of the Indian Penal Code, 1860 states that “Husband or relative of husband of a
woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this
section, “cruelty” means—
a) any willful conduct which is of such a nature as is likely to drive the woman
to commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing

her or any person related to her to meet any unlawful demand for any

46
M. Srinivashu v. State of A.P.

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property or valuable security or is on account of failure by her or any person

related to her to meet such demand.”

In the Samar Ghosh (IAS) judgment by the Supreme Court broadening the definition of Mental
Cruelty, The bench focused on what it called “sustained behavior”. It said that “mere coldness or
lack of affection cannot amount to cruelty” but made allowance for the fact that “frequent
rudeness of language, petulance of manner, indifference and neglect may reach such a degree
that it makes the married life for the other spouse absolutely intolerable”.

In the present case the counsel of the respondent pleads that the deceased was subject to cruelty
as defined in S.498A (b) and was forced to bring twenty lakh rupees and was also mistreated
verbally and was behaved rudely for not meeting such demands. She was from time to time even
taunted that her parents have not given her enough at the time of the Nuptial Fire and even after
it.

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PRAYER

In light of the aforementioned arguments, it is most humbly prayed before the Hon’ble Court that

the Hon’ble Court may be pleased to:

1. THE GOLD ORNAMENTS RECEIVED AT THE TIME OF NUPTIAL FIRE COME UNDER THE
PURVIEW OF STRIDHAN AND THE APPELLANT SHALL BE HELD LIABLE UNDER SECTION 406
OF THE INDIAN PENAL CODE, 1860.

2. THERE IS NO EVIDENTIARY VALUE OF EXPERT OPINION AND MEDICAL REPORT AND THE
ACCUSED SHOULD BE PUNISHED ON THE BASIS OF DYING DECLARATIONS.

3. THE JUDGMENT OF SESSIONS COURT MAKING THE APPELLANT LIABLE FOR THE OFFENCE
OF MURDER UNDER SECTION 302 OF THE INDIAN PENAL CODE, 1860 IS CORRECT.

4. THE ACCUSED SHALL BE PUNISHED UNDER SECTION 304-B AND 498-A OF THE INDIAN
PENAL CODE, 1860.

Pass any other order as this Hon’ble Court may deem fit in the light and interest of justice.

All of which is humbly submitted

Counsel for Respondent

_____________________________

Date: _______________

Place: ______________

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