BEFORE THE COURT OF SESSIONS AT DURG, XANADU, BHARAT

Transcription

1 i SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2015 BEFORE THE COURT OF SESSIONS AT DURG, XANADU, BHARAT S.C. No. 111 of 2015 STATE OF XANADU. Prosecution v. 1. MANOHAR LAL 2. RAHUL GULATI. Accused UPON SUBMISSION TO THE HON BLE SESSIONS JUDGE WRITTEN SUBMISSION ON BEHALF OF THE DEFENCE

2 ii TABLE OF CONTENTS LIST OF ABBREVIATIONS... iv INDEX OF AUTHORITIES... v STATEMENT OF JURISDICTION... vii STATEMENT OF FACTS... viii STATEMENT OF CHARGES... ix SUMMARY OF ARGUMENTS... x ARGUMENTS ADVANCED... 1 I. A1 IS NOT GUILTY OF MURDER PUNISHABLE UNDER S. 302 OF THE BPC... 1 A. It cannot be conclusively established that death was caused by the actions of the Accused:... 1 B. The Accused did not intend to kill the deceased:... 3 C. The Accused did not have knowledge that his act would cause death:... 4 II. A1 AND A2 ARE NOT GUILTY OF FORGERY PUNISHABLE UNDER S. 465 R/W S. 34 OF THE BPC... 6 A. A1 did not have the intention to forge the prescription:... 6 B. A2 cannot be held jointly liable for lack of common intention... 7 C. Arguendo, the Accused are protected under s. 81 of the BPC:... 8 III. A1 IS NOT GUILTY OF IDENTITY THEFT UNDER S. 66C OF THE IT ACT... 8 A. The Accused did not make use of the deceased s password:... 8

3 iii B. In any case, A1 did not have a fraudulent or dishonest intention:... 9 IV. A1 AND A2 ARE NOT GUILTY OF ANY OFFENCE PUNISHABLE UNDER S. 66 OF THE IT ACT R/W S. 34, BPC A. The Accused did not access any computer without permission B. The Accused did not extract any information from any computer V. A1 AND A2 ARE NOT GUILTY OF CRIMINAL CONSPIRACY PUNISHABLE UNDER S. 120B R/W S. 302, BPC AND S. 66C OF THE IT ACT A. A1 and A2 never agreed to kill the deceased B. The Accused did not conspire to commit identity theft VI. A2 IS NOT GUILTY OF ABETTING MURDER PUNISHABLE UNDER S. 109 OF THE BPC A. A2 did not instigate A1 to murder the deceased B. A2 did not engage with A1 in any conspiracy to murder the deceased C. A2 did not intentionally aid A1 to murder the deceased PRAYER... 16

4 iv LIST OF ABBREVIATIONS Paragraph Number A1 Accused Number 1 A2 Accused Number 2 AIR Bom All India Reporter Bombay High Court BPC Bharat Penal Code, 1860 Cal Calcutta High Court Cr.P.C. Code of Criminal Procedure, 1973 Cri LJ/ Cr LJ Del DW Criminal Law Journal Delhi High Court Defence Witness IT Act Information Technology Act, 2000 Ker Mad MP Pat PW r/w Kerala High Court Madras High Court Madhya Pradesh High Court Patna High Court Prosecution Witness Read With s. Section SC SCC Supreme Court Supreme Court Cases

5 v INDEX OF AUTHORITIES STATUTES 1. THE BHARAT PENAL CODE, THE CODE OF CRIMINAL PROCEDURE, THE INFORMATION TECHNOLOGY ACT, 2000 CASES 1. Chitresh Kumar Chopra v. State (Government of NCT of Delhi), AIR 2010 SC Daniel Hailey Walcott v. State, AIR 1968 Mad Dr. Vimla v. Delhi Administration, AIR 1963 SC Emperor v. Amiruddin Salebhoy Tyabjee, AIR 1923 Bom 44B 5. Hardeep Singh Sohal v. State of Punjab, (2004) 11 SCC Hardeo Singh v. State of Bihar, (2000) Cr LJ 2978 (SC) 7. Hari Ram v. State of U.P., (2004) 8 SCC In Re Maragatham alias Lakshmi, AIR 1961 Mad Jacob Mathew v. State of Punjab, AIR 2005 SC K.V. Chacko v. State of Kerala, AIR 2001 SC Koppula Venkat Rao v. State of AP, (2004) 3 SCC Kotamraju Venkatarayadu v. Emperor, (1905) 28 Mad Mohammed Khalid v. State of West Bengal, (2002) 7 SCC Parichhat v. State of Madhya Pradesh, (1972) 4 SCC Pramatha Nath v. Saroj Ranjan, AIR 1962 SC Purushottaman v. State of Kerala, (1989) 1 Ker LJ R. Venkatakrishnan v. CBI, (2009) 11 SCC 737

6 vi 18. Rajib Neog v. State of Assam, 2011 Cri LJ Raju Pandurang Mahale v. State of Maharashtra, (2004) 4 SCC Ram Jolaha v. Emperor, AIR 1927 Pat Ramesh Kumar v. State of Chattisgarh, AIR 2001 SC Sanjiv Kumar v. State of Himachal Pradesh, AIR 1999 SC Shri Ram v. State of U.P., AIR 1975 SC Shrilal v. State AIR 1953 MP State v. Nalini, (1999) 5 SCC William Slaney v. State of MP, AIR 1956 SC Yogesh v. State of Maharashtra, AIR 2008 SC 2991 BOOKS 1. BLACK S LAW DICTIONARY, (Bryan Garner ed., 7th edn., 1999) 2. HANDBOOK OF PHARMASOS, (Dr. P.K. Lakshmi ed., 5 th edn., 2012) 3. James F. Stephen, A HISTORY OF THE CRIMINAL LAW OF ENGLAND, Vol. 2, (1883) 4. Krishan Vij, TEXTBOOK OF FORENSIC MEDICINE AND TOXICOLOGY, (4 th edn., 2008) 5. P. Ramanatha Iyer, ADVANCED LAW LEXICON, Vol. 2, (2005) ARTICLES 1. Keld Kjeldsen, Hypokalemia and Sudden Cardiac Death, EXPERIMENTAL AND CLINICAL CARDIOLOGY, Vol. 15(4), 96 (2010). 2. M.R. Tramer et al, Propofol and Bradycardia: Causation, Frequency and Severity, BRITISH JOURNAL OF ANAESTHESIA, 642 (1996)

7 vii STATEMENT OF JURISDICTION This Hon ble Court has jurisdiction to try the instant matter under Section 177 read with Section 209 of the Code of Criminal Procedure, The Accused humbly submit to the jurisdiction of this Court. Section 177: 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: 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 the case to the Court of Session; (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.

8 viii STATEMENT OF FACTS Manohar, who was orphaned at the age of 10, used to reside with his uncle, Karan, his aunt Devika and his cousin, Raghav. In 2011, after completing his board examinations, Manohar joined TMC, a private medical college. Soon after, due to work pressure, Karan got habituated to consuming alcohol. His unhealthy lifestyle led to high BP and cholesterol increase. He had taken a few life insurance policies, one of which offered a Rs. 2 crore benefit on death with an annual premium of Rs. 2 lakhs. Manohar had been named the benefactor in this policy, in case of Karan s death and no one was aware of this fact. On May 21, 2014, Karan fell very sick and when Manohar was by his side, he told him about the policy. On one occasion, Rahul came to Manohar s house and connected a device to Karan s computer which allowed them to decrypt Karan s password for online banking. From July 4, 2014 onwards, Karan s health started declining more rapidly. A day after having a fight with Karan over Devika s refusal at paying his semester fees, he was asked by Karan to transfer the college fee to his own account. He transferred Rs. 2.5 lakhs, which was Rs. 25,000 more than what Karan usually transferred. While doing so, he realized that Karan s online banking password was not the same as before and found it in a folder on his laptop. The following day, Karan had an incident where he started coughing heavily and started complaining of pain in his stomach and chest. Manohar asked Raghav to rush and get medicines which Manohar administered to him on the basis of what he had learnt in medical school. Karan had seizures, as a result, and soon passed away. When Karan s doctor found out about this he chided Manohar for having administered the medicines. Manohar and Rahul were arrested for the murder of Karan. The Court of Sessions, after investigation, framed charges against Manohar and Rahul.

9 ix STATEMENT OF CHARGES The accused have been charged as under: I. Mr. Manohar Lal (A1): (i) (ii) (iii) (iv) (v) Section 302 of the BPC. Section 465 r/w 34 of the BPC. Section 66C of the IT Act. Section 66 of the IT Act r/w Section 34 of the BPC. Section 120B r/w 302 of the BPC and Section 66C of the IT Act. II. Mr. Rahul Gulati (A2): (i) (ii) (iii) (iv) Section 465 r/w 34 of the BPC. Section 66 of the IT Act r/w Section 34 of the BPC. Section 120B r/w 302 of the BPC and Section 66C of the IT Act. Section 109 of the BPC.

10 x SUMMARY OF ARGUMENTS I. A1 IS NOT GUILTY OF MURDER PUNISHABLE UNDER S. 302 OF THE BPC It is submitted before this Hon ble Court that the accused A1 is not guilty of murder as the deceased s death cannot be attributed to his act of administering Angispan, which was in any case unlikely to cause death on its own. The accused had no knowledge that death would be the result of his act, which was done in good faith to prevent further harm. Moreover, A1 wanted to save his uncle s life and lacked the intention to kill him. II. A1 AND A2 ARE NOT GUILTY OF FORGERY PUNISHABLE UNDER S. 465 R/W S. 34 OF THE BPC It is submitted before this Hon ble Court that the accused cannot be held guilty for the offence of forgery as A1 did not have knowledge that the paper on which he had written Angispan was Dr. Choudhary s prescription and hence, did not have the requisite mens rea to commit forgery. Further, A2 cannot be held jointly liable for lack of common intention and active participation in the commission of any offence. Even so, A1 cannot be held guilty for the offence of forgery as he acted in good faith to prevent the death of his uncle and hence is protected under s. 81 of BPC. III. A1 IS NOT GUILTY OF IDENTITY THEFT UNDER S. 66C OF THE IT ACT It is submitted before this Hon ble Court that the accused A1 is not guilty of identity theft as he never made use of the deceased s password as required by s. 66C of the IT Act. In any case, assuming for argument s sake that he did use the password to transfer money to himself, it is

11 xi submitted that A1 had no fraudulent or dishonest intention as he was acting on the instructions of the deceased to get money for the purposes of paying his college fee, fine and daily expenses. IV. A1 AND A2 ARE NOT GUILTY OF ANY OFFENCE PUNISHABLE UNDER S. 66 OF THE IT ACT R/W S. 34, BPC It is submitted before this Hon ble Court that the accused A1 and A2 are not guilty of any offence punishable under s. 66 of the IT Act read with s. 34, BPC. Neither of the accused accessed any computer without the permission of the owner or a person in-charge. Moreover, there is no evidence to show that they extracted or downloaded any information or data from any such computer. V. A1 AND A2 ARE NOT GUILTY OF CRIMINAL CONSPIRACY PUNISHABLE UNDER S. 120B R/W S. 302, BPC AND S. 66C OF THE IT ACT It is submitted before this Hon ble Court that the accused A1 and A2 are not guilty of criminal conspiracy to kill the deceased or to commit identity theft, punishable under s. 120B of the BPC. There is no evidence whatsoever of the accused having entered into any agreement, express or implied, to commit either murder or identity theft. They never shared any intention of committing any offence and hence, in the absence of a meeting of minds, they could not have entered into any conspiracy. VI. A2 IS NOT GUILTY OF ABETTING MURDER PUNISHABLE UNDER S. 109 OF THE BPC It is submitted before this Hon ble Court that the accused A2 cannot be held guilty of abetting A1 to murder the deceased as there is no evidence to show that A2 instigated, conspired with, or intentionally aided A1 to murder the deceased.

12 1 ARGUMENTS ADVANCED I. A1 IS NOT GUILTY OF MURDER PUNISHABLE UNDER S. 302 OF THE BPC 1. It is humbly submitted before this Hon ble Court that the Accused A1 cannot be convicted under s. 302 of the BPC for the murder of the deceased, as the prosecution has failed to establish his guilt beyond reasonable doubt. It has not been conclusively established that death was caused by the actions of the Accused [A]. The Accused acted in order to save his uncle s life and had no intention to kill him [B]. Moreover, he did not know that his act was likely to cause death [C]. A. IT CANNOT BE CONCLUSIVELY ESTABLISHED THAT DEATH WAS CAUSED BY THE ACTIONS OF THE ACCUSED: 2. To impose criminal liability for murder, it is necessary that death should have been the direct result of the act of the Accused, and that act must be the immediate and proximate cause of the deceased s death. 1 In other words, his acts must be unequivocally referable to the commission of the specific crime, and any ambiguity thereto is fatal to the prosecution s case. 2 (i) Conflicting results of medical reports: 3. In the present case, the deceased s post mortem and forensic reports are inconclusive insofar as they suggest conflicting causes of cardiac arrest which led to death. While the former states that it was either a drug overdose or a drug cross reaction, 3 the latter points at air embolism to have been the cause. 4 In line with established principles, it is submitted that such inconsistent 1 Jacob Mathew v. State of Punjab, AIR 2005 SC In Re Maragatham alias Lakshmi, AIR 1961 Mad Annexure- 3, Factsheet. 4 Annexure- 4, Factsheet.

13 2 medical reports cannot be relied upon, and consequently, the benefit of doubt arising out of such inconsistencies, must go in favour of the Accused. 5 (ii) Neither air embolism nor drug reaction could have caused death: 4. In any case, neither air embolism nor a drug reaction, which have allegedly been attributed to the acts of A1, could have led to the deceased s death. It has been medically proven that only in volumes of 100 ml or above, can air cause fatal embolisms. 6 Thus, an average syringe measuring between 5-10 ml which was used by A1 to administer Angispan could not have possibly caused such an effect which led to his uncle s death. Moreover, it is submitted that Angispan, with Nitroglycerin as its active ingredient, has no documented contraindication with any of the other medications that the deceased was prescribed. 7 Therefore, its administration could not have led to a cross reaction in any manner whatsoever and hence could not have killed the deceased. (iii) There are other, more probable causes which could have led to the deceased s death: 5. It is clear from PW1 s statement that the deceased in fact regained consciousness after A1 administered Angispan, and that only after he drank a liquid (presumably alcohol) from a flask kept next to his table, did he collapse and die. 8 Moreover, the forensic report indicates that the deceased was suffering from severe hypokalemia, a condition characterized by low potassium levels in the blood, 9 which by itself could have caused cardiac arrest. 10 The deceased had also 5 K.V. Chacko v. State of Kerala, AIR 2001 SC Krishan Vij, TEXTBOOK OF FORENSIC MEDICINE AND TOXICOLOGY, 442 (4 th edn., 2008). 7 HANDBOOK OF PHARMASOS, 341 (Dr. P.K. Lakshmi ed., 5 th edn., 2012). 8 Annexure- 5, Factsheet. 9 The normal range of potassium is mmol/l. The deceased had 2.5 mmol/l. See Annexure- 4, Factsheet.

14 3 been prescribed Propofol, 11 a drug not meant to be given as an ordinary sedative owing to its high potential for fatal side effects, including cardiac arrest. 12 Moreover, it is also stated that the Investigation Officer found a bottle of Prozac, an anti-depressant in the deceased s personal belongings, which his doctor had specifically refused to prescribe for him due to its heavy side effects, 13 making it highly probable that the deceased was in fact consuming the drug on his own, despite Dr. Choudhary s warning. 6. It is submitted that the aforementioned facts cast serious doubts on the prosecution s case connecting the Accused to the crime. Therefore, in the absence of definite and conclusive proof of the same, A1 cannot be held guilty. B. THE ACCUSED DID NOT INTEND TO KILL THE DECEASED: 7. Intention is one of the necessary elements, as specified under s. 300, for the offence of murder to be committed. It refers to the direction of the Accused s conduct towards the object chosen upon, considering the motives which suggest the choice. 14 In other words, the Accused should be taken to intend a result if he acts in order to bring it about. It is submitted that in the present case, A1 cannot be said to have had the intention to kill the deceased by administering Angispan, an act which he in fact did to save his life. 10 Keld Kjeldsen, Hypokalemia and Sudden Cardiac Death, EXPERIMENTAL AND CLINICAL CARDIOLOGY, Vol. 15(4), 96 (2010). 11 Annexure- 5, Factsheet. 12 M.R. Tramer et al, Propofol and Bradycardia: Causation, Frequency and Severity, BRITISH JOURNAL OF ANAESTHESIA, 642 (1996). 13 Annexure- 6, Factsheet. 14 Koppula Venkat Rao v. State of AP, (2004) 3 SCC 602.

15 4 8. When the deceased complained of chest pain, the first reaction of A1 was to look for a medicine in the house, failing to find which he tried to contact the family doctor. It was only after his attempts yielded nothing that he asked PW1 to get Angispan, something that even Dr. Choudhary conceded was the best medicine to give in such a situation. 15 It is submitted that if the intention of the Accused was to kill the deceased, he could have just let him be and left him there. However, his actions, as aforementioned, which have also been corroborated by PW1, clearly establish that he lacked the positive mental attitude to kill his uncle. 9. Moreover, the deceased was like a father to A1, and he had no reason to kill him. Indeed, as is clear from Prof. Deshpande s statement, he was in fact worried about his uncle s health and discussed extensively about how to take care of him better. 16 Besides, the deceased had been financially aiding A1 with everything including academics, and thus by his death, the Accused has had nothing to gain. Instead, he has lost not only a pillar of financial support, but perhaps the only family he had. Accordingly, it is beyond imagination that the deceased was murdered by A1 for the claim of insurance, and thus, his intention not being established beyond reasonable doubt, he cannot be held guilty of murder. C. THE ACCUSED DID NOT HAVE KNOWLEDGE THAT HIS ACT WOULD CAUSE DEATH: 10. Under s. 300, BPC, if there is no intention to kill then an act can be murder only if the Accused had knowledge that it was likely to, or must in all probability cause the deceased s death. Like intention, knowledge is a question of fact, which connotes a certainty, and not merely 15 Annexure- 5, Factsheet. 16 Annexure- 5, Factsheet.

16 5 a probability. 17 It is necessary for the Accused to have known that death would be the result of his act. (i) The knowledge requirement of s. 300 cannot be ascribed to A1: 11. It is submitted in the present case that A1 had no knowledge that his act of administering Angispan would lead to his uncle s death. As already mentioned (in 4), none of the prescribed drugs that the deceased was on was known to react with Angispan. Moreover, in Dr. Choudhary s own words, what Mano prescribed was the correct medicine [ ] that is what any doctor in the world would give in an emergency situation. 18 Furthermore, admittedly, there was no premeditation as the acts of A1 were a sudden response to an emergency situation. Therefore, the necessary knowledge cannot be ascribed to the Accused, 19 and there is nothing that warrants attributing to him, knowledge that his act was so imminently dangerous that it must in all probability cause death. Moreover, the fact that the deceased gained consciousness after the administration of the drug shows that it was not sufficient in the ordinary course of nature to cause death. The elements specified in s. 300 of the BPC are thus wanting and A1 cannot be held guilty of murdering the deceased. (ii) In any case, the act was done to prevent further harm: 12. S. 81 of the BPC categorically provides that an act cannot be an offence by reason of its being done with knowledge that it is likely to cause harm, if such act is done without criminal intention, in good faith, to prevent further harm to any person. As has been established in 7-9 above, the Accused had no criminal intention to kill the deceased and that in fact, to the contrary, his acts were only directed at saving his uncle s life. Therefore, even if it were to be said that the 17 Ram Jolaha v. Emperor, AIR 1927 Pat Annexure- 5, Factsheet. 19 William Slaney v. State of MP, AIR 1956 SC 116.

17 6 Accused in fact had knowledge of the consequences of his act, it is submitted that the general exception provided for under s. 81 clearly applies and hence he cannot be convicted of any offence whatsoever. II. A1 AND A2 ARE NOT GUILTY OF FORGERY PUNISHABLE UNDER S. 465 R/W S. 34 OF THE BPC 13. It is humbly submitted before this Hon ble Court that the Accused A1 and A2 are not guilty of the offence of forgery punishable under s. 465 r/w s. 34 of the BPC. In order to constitute forgery, the Accused must have made a false document within the meaning of s. 464 with the mens rea as required by s It is submitted that the Accused A1 did not have any intention to forge the prescription [A]. Moreover, A2 cannot be held jointly liable for lack of common intention as required under s. 34 [B]. Arguendo, the Accused are protected under s. 81 of the BPC [C]. A. A1 DID NOT HAVE THE INTENTION TO FORGE THE PRESCRIPTION: 14. In the present case, given the urgency of the situation, A1 wrote Angispan on a piece of paper nearest to him in an attempt to save his uncle s life. 21 Only later did he discover that the paper on which he had written the medicine was Dr. Choudhary s prescription. 22 Therefore, at the time of the incident, A1 did not have any knowledge that the piece of paper on which he had scribbled the name of the medicine was Dr. Choudhary s prescription and hence, in the absence of such knowledge, he cannot be said to have had the requisite mens rea for the offence as required under s Daniel Hailey Walcott v. State, AIR 1968 Mad Annexure- 5, Factsheet. 22 Annexure- 5, Factsheet.

18 7 15. It is thus clear that the Accused did not intend to cause either wrongful gain to himself or wrongful loss to any other person. 23 Moreover, as DW5 has stated, Angispan is a very common drug which does not even require a prescription, 24 the Accused could not have secured any added benefit or advantage by means of deceit. Thus, it is submitted that, in any case, A1 did not act dishonestly or fraudulently as neither did he have an intention to cause wrongful gain or wrongful loss nor did he have an intention to deceive, or secure a benefit or advantage to the party deceiving by means of deceit. 25 B. A2 CANNOT BE HELD JOINTLY LIABLE FOR LACK OF COMMON INTENTION AS REQUIRED UNDER S. 34: 16. It is submitted that A2 cannot be held jointly liable for forgery as the prosecution has failed to establish by evidence, that there was any plan or meeting of minds between A1 and A2 to forge the prescription. 26 Moreover, to sustain a charge under s. 34, active participation in the commission of the criminal act is required which is clearly absent in the present case. 27 The evidence adduced fails to show that A2 had participated in any manner in the act of alleged forgery, in furtherance of a common intention or otherwise. 28 Therefore, A2 cannot be held jointly liable for the offence of forgery under s. 463 r/w s. 34 of BPC for lack of the aforementioned requirements. 23 Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 33, (KT Thomas and MA Rashid eds., 34 th edn., 2014). 24 Annexure- 5, Factsheet. 25 Kotamraju Venkatarayadu v. Emperor, (1905) 28 Mad Hari Ram v. State of U.P., (2004) 8 SCC William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116; Raju Pandurang Mahale v. State of Maharashtra, (2004) 4 SCC Parichhat v. State of Madhya Pradesh, (1972) 4 SCC 694.

19 8 C. ARGUENDO, THE ACCUSED ARE PROTECTED UNDER S. 81 OF THE BPC: 17. In the present case, assuming but not conceding that A1 had knowledge that he wrote Angispan on Dr. Choudhary s prescription, as has been proved in 14-15, A1 still lacked the criminal intention to cause harm by forgery. In fact, A1 only acted in good faith to save his uncle s life given that Angispan was the best medicine that he could have administered in that emergency situation. 29 Therefore, it is submitted that the Accused, who acted in good faith to prevent further harm to the deceased, cannot be convicted of the offence of forgery, being protected under s. 81 of BPC. III. A1 IS NOT GUILTY OF IDENTITY THEFT UNDER S. 66C OF THE IT ACT 18. It is submitted before this Hon ble Court that the Accused A1 cannot be held guilty of identity theft, under s. 66C of the IT Act. For the offence to have been committed, the Accused should have made use of a password or unique identification of another person, with a fraudulent or dishonest intention. It is submitted that none of the Accused ever made use of the deceased s password within the meaning of s. 66C [A]. Moreover, in any case, A1 had no fraudulent or dishonest intention to commit an offence as provided for under this provision [B]. A. THE ACCUSED DID NOT MAKE USE OF THE DECEASED S PASSWORD: 19. As mentioned above, for the offence of identity theft to have been committed, it is essential that the Accused must have made use of the aggrieved person s password. In context of the present case, to make the Accused liable under s. 66C, the deceased s password must have been employed or used by them, for the purpose of which it was adapted. 30 Accordingly, the offence 29 Annexure- 5, Factsheet. 30 BLACK S LAW DICTIONARY, 1160 (Bryan Garner ed., 7 th edn., 1999).

20 9 under this section is not of obtaining or deciphering the password, but of using it to some end with a fraudulent or dishonest intent. 20. However, it is submitted that there is no evidence to support the prosecution s claim that the Accused made use of the deceased s password in any way, for any transaction whatsoever. Insofar as the allegation on A1 of having transferred Rs. 2.5 lacs from the deceased s account to his own is concerned, it is contended that it was in fact the deceased himself who transferred the money from his laptop, towards payment of A1 s college fee, fine and pocket expenses. In addition to this, there is no specific act or incident that the prosecution has succeeded in attributing to any of the Accused to make them liable for identity theft. Therefore, it is submitted that neither A1 nor A2 can be convicted of the offence under s. 66C of the IT Act. B. IN ANY CASE, A1 DID NOT HAVE A FRAUDULENT OR DISHONEST INTENTION: 21. In any case, assuming but not conceding that A1 indeed used the deceased s banking password to transfer money to his account, it is submitted that he did not harbour a fraudulent or dishonest intention as envisaged under the provision. 22. Any money transfer is reflected in the account holder s passbook with the details of the transaction. Moreover, it is not uncommon for customers to receive instant messages of banking activity related to their accounts. By virtue of having known all of this while transferring the money, A1 could not have possibly intended to deceive his uncle or harm his financial interests in any manner, and thus could not have had any fraudulent intention Furthermore, it is submitted that since the Accused had defaulted in paying his college fee on time, he was also required to pay an additional fine amounting to twenty five thousand rupees. 31 Dr. Vimla v. Delhi Administration, AIR 1963 SC 1572.

21 10 Consequently, in addition to the usual amount that his uncle transferred to his account, the excess was transferred in good faith in order to pay the fine. In any case, it was the deceased who had been paying for A1 s academics and daily expenses ever since his childhood. 24. Thus, he suffered no wrongful loss as a result of the transfer of money to A1 s account as it was only the deceased who would have paid his fee, fine and pocket money. In other words, A1 did not require to deceive his uncle to get the required amount of money. Therefore, no dishonest intention can be imputed to the Accused, 32 as a result of which he cannot be convicted under this section. IV. A1 AND A2 ARE NOT GUILTY OF ANY OFFENCE PUNISHABLE UNDER S. 66 OF THE IT ACT R/W S. 34, BPC 25. It is submitted before this Hon ble Court that the Accused A1 and A2 cannot be held guilty of any offence punishable under s. 66 of the IT Act r/w s. 34 of the BPC. S. 66 of the IT Act punishes unauthorised access of a computer, in respect of any act enumerated under s. 43 that is done either fraudulently or dishonestly. It is submitted that none of the Accused, in accessing any computer acted without permission [A]. Moreover, there is nothing to show that the Accused extracted any information from any computer at any point in time [B]. A. THE ACCUSED DID NOT ACCESS ANY COMPUTER WITHOUT PERMISSION: 26. An act under s. 43 becomes an offence only if it is done without the permission of the owner or a person in-charge of a computer. By virtue of being the deceased s nephew, and a part of his family, A1 had the liberty to access and use the desktop as he wished. Thus, he cannot be said to not have permission to access it, as he was in fact in-charge of the computer, which was 32 James F. Stephen, A HISTORY OF THE CRIMINAL LAW OF ENGLAND, Vol. 2, 121 (1883).

22 11 effectively in his care. 33 Consequently, even A2 had implied permission to access the desktop insofar as he accessed it in the presence, and with the implied permission of A1, the person incharge. In fact, as is clear from PW1 s statement, 34 both the Accused frequently used the desktop and A1 s laptop (at times even connecting them) without any apparent censure by the deceased, who was the owner of the computers in question. Moreover, even when A1 accessed his uncle s laptop on August 2, he did so only with his express permission. It was in fact the deceased who had asked him to get his laptop and transfer money. Therefore, the Accused A1 and A2 did not, at any point access any computer without authorisation. B. THE ACCUSED DID NOT EXTRACT ANY INFORMATION FROM ANY COMPUTER: 27. The available direct and circumstantial evidence does not in any manner suggest that the Accused downloaded, extracted or copied any data from the deceased s computers. It is submitted that in the absence of any evidence to the contrary, mere discovery of a keylogger does not indicate that it was in fact used to extract data from a computer. Anyone, including the deceased, could have owned or used the keylogger for his own purposes, something which is not unheard of. 35 Similarly, in the absence of evidence to establish the ownership of the hard disk, even the use of the keylogging software cannot be imputed to the Accused. In any case, even if the software was downloaded by the Accused, there is nothing to show that it was in fact used by them to extract information. Moreover, the expert witness did not find proof of any suspicious transfer of data from the deceased s computer, whatsoever. 33 P. Ramanatha Iyer, ADVANCED LAW LEXICON, Vol. 2, 2273 (2005). 34 Annexure- 5, Factsheet. 35 Annexure- 7, Factsheet.

23 In this context, it is contended that A2 cannot be convicted under this section merely for teaching A1 the use of the keylogging software, which in any case did not involve any fraudulent or dishonest intention. It is stated that such an act was done bona fide purely out of a curiosity arising out of the Accused s love for technology. Accordingly, even liability under s. 34, BPC cannot be imputed in the absence of a common intention to commit a crime. 29. Therefore, the prosecution has failed to conclusively establish that A1 or A2 downloaded, copied or extracted any data from the Accused s computers. It is clear that except for the general, vague allegations, there is no specific role attributed to the Accused persons with regard to the charge against them. V. A1 AND A2 ARE NOT GUILTY OF CRIMINAL CONSPIRACY PUNISHABLE UNDER S. 120B R/W S. 302, BPC AND S. 66C OF THE IT ACT 30. It is submitted before this Hon ble Court that the Accused are not guilty of criminal conspiracy punishable under s. 120B of the BPC. In order to prove that the Accused have committed the offence, it is necessary to show that (i) there must be an agreement between the persons who are alleged to conspire; and (ii) that the agreement should be for doing of an illegal act, or c) for doing by illegal means an act which may not itself be illegal Accordingly, it is submitted that there is no evidence to reasonably prove that the Accused agreed to do an illegal act or a legal act by illegal means within the meaning of s. 120A of the BPC. There was no agreement between the Accused to kill the deceased [A]. Additionally, the Accused never intended or agreed to commit identity theft within the meaning of s. 66C of the IT Act [B]. 36 Yogesh v. State of Maharashtra, AIR 2008 SC 2991.

24 13 A. A1 AND A2 NEVER AGREED TO KILL THE DECEASED: 32. An agreement is a necessary ingredient and is the gist of the offence of criminal conspiracy. 37 A mere wish of the Accused that an offence be committed is not enough to establish conspiracy. 38 However, in the present case, the prosecution has nothing to show that the Accused even thought about killing the deceased, much less agreed upon it. A2 s statement about how A1 always thought highly of his uncle and could not have murdered him, 39 categorically demonstrates that there was no meeting of minds of the two Accused, and in the absence of which, the charge cannot be sustained. 40 The mere fact the Accused the Accused were close friends is not sufficient to lead to an inference of conspiracy. 41 Moreover, none of the Accused had anything to gain out of the death of the deceased, and therefore, it seems rather unlikely that they would have conspired to kill him. B. THE ACCUSED DID NOT CONSPIRE TO COMMIT IDENTITY THEFT: 33. There is nothing to show any agreement between A1 and A2 to use the deceased s banking password to their advantage. The prosecution has failed to furnish evidence of any understanding between the Accused whereby they definitely committed to cooperate to committing such a crime. 42 It is submitted that in merely teaching A1 to use a keylogging software, A2 cannot be said to have conspired with him to commit identity theft of the deceased s password. Moreover, showing a co-accused the use of a software which, among its many uses, could also have been 37 R. Venkatakrishnan v. CBI, (2009) 11 SCC State v. Nalini, (1999) 5 SCC Annexure- 5, Factsheet. 40 Hardeo Singh v. State of Bihar, (2000) Cr LJ 2978 (SC). 41 Sanjiv Kumar v. State of Himachal Pradesh, AIR 1999 SC Mohammed Khalid v. State of West Bengal, (2002) 7 SCC 334.

25 14 used to decrypt others passwords, is not an illegal act in itself. In any case, it is a well-founded rule of law that merely an allegation of motive is not sufficient to connect the Accused with conspiracy. 43 Therefore, in the absence of proof of any agreement, express or implied, A1 and A2 cannot be held guilty of criminal conspiracy under any of the heads abovementioned. VI. A2 IS NOT GUILTY OF ABETTING MURDER PUNISHABLE UNDER S. 109 OF THE BPC 34. It is humbly submitted before this Hon ble Court that the Accused A2 is not guilty of abetting the murder of the deceased punishable under s. 109 of the BPC. As per the section, in order to constitute abetment, a person should have instigated another in doing a thing, engaged in a conspiracy with another in doing of a thing, or intentionally aided another in the doing of a thing. 44 It is submitted that the Accused, A2 did not instigate [A], conspire with [B], or intentionally aid [C] A1 for the murder of the deceased. A. A2 DID NOT INSTIGATE A1 TO MURDER THE DECEASED: 35. In the present case, there is no evidence to suggest that A2 played any role with a view to stimulate A1 to murder the deceased by any means or language, direct or indirect, either in the form of express solicitation or of hints, insinuation or encouragement. 45 More importantly, there is nothing to indicate that A2 has goaded or urged A1 with an intention to provoke, incite, urge or encourage him to murder his uncle. 46 Though it is not necessary that actual words must be used to the effect, or what constitutes instigation must specifically be suggestive of the 43 Hardeep Singh Sohal v. State of Punjab, (2004) 11 SCC Chitresh Kumar Chopra v. State (Government of NCT of Delhi), AIR 2010 SC Emperor v. Amiruddin Salebhoy Tyabjee, AIR 1923 Bom 44B; Rajib Neog v. State of Assam, 2011 Cri LJ Ramesh Kumar v. State of Chattisgarh, AIR 2001 SC 3837.

26 15 consequence, in the current case, it cannot be said with any reasonable certainty that A2 had the intention to incite the murder of the deceased. 47 B. A2 DID NOT ENGAGE WITH A1 IN ANY CONSPIRACY TO MURDER THE DECEASED: 36. As established above in 32, there is nothing to suggest that the Accused, A1 and A2, entered into any agreement to murder the deceased. Further, apart from a mere combination of persons, there is no indication that any act or illegal omission took place in pursuance of any agreement thereof. 48 Therefore, it is submitted that A2 did not engage with A1 in any conspiracy for the murder of the deceased. C. A2 DID NOT INTENTIONALLY AID A1 TO MURDER THE DECEASED: 37. In the current case, the allegation that A2 abetted the murder of the deceased cannot be substantiated as there is no evidence to suggest that A2 intentionally aided A1 to murder his uncle. To convict A2 for intentionally aiding A1, it is not enough to show that an act on part of A2 happened to facilitate the commission of the crime. 49 The prosecution must establish that A2 knew that A1 did intend to commit the murder, 50 and that it was A2 s dominant intention to aid the commission of it. 51 It is submitted that the prosecution has failed to conclusively establish any of the above requirements. Therefore, it is humbly submitted, that a mere association, between A2 and A1, which does not measure up to an instigation, conspiracy or intentional aid, does not constitute abetment. 47 Id. 48 Pramatha Nath v. Saroj Ranjan, AIR 1962 SC Shri Ram v. State of U.P., AIR 1975 SC Shrilal v. State AIR 1953 MP Purushottaman v. State of Kerala, (1989) 1 Ker LJ 340.

27 16 PRAYER Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon ble Court may be pleased to adjudge and declare that: I. A1 is not guilty under s. 302 of the BPC, 1860, and hence acquit him of the charge. II. A1 and A2 are not guilty under s. 465 r/w s. 34 of the BPC, 1860, and hence acquit them of the charge. III. A1 is not guilty under s. 66C of the IT Act, 2000, and hence acquit him of the charge. IV. A1 and A2 are not guilty under s. 66 of the IT Act, 2000 r/w s. 34 of the BPC, 1860, and hence acquit them of the charge. V. A1 and A2 are not guilty under s. 120B of the BPC, 1860, and hence acquit them of the charge. VI. A2 is not guilty under s. 109 of the BPC, 1860, and hence acquit him of the charge. And pass any other order that this Hon ble Court may deem fit in the interest of justice, equity and good conscience. All of which is most humbly and respectfully prayed, S/d COUNSEL FOR THE ACCUSED