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IN THE HON'BLE HIGH COURT OF GUJARATCriminal Appeal No.:1234/2017Mr. Arvind Dave & Anr.…………………………Appellant Vs.1) The State of Gujarat2) Mr. Anand Bhatt………………...……………RespondentWRITTEN SUBMISSIONS ON BEHALF OF APPELLANTSSubmitted by: Yash GuptaRoll No.: 110Semester: 03 Academic Year: 2017-18GLS Law College, AhmedabadTABLE OF CONTENTSContentsPage No.List of Abbreviations3Index of Authorities4Statement of Jurisdiction5Statement of Facts6Statement of Issues7Summary of Arguments8Arguments Advance9Prayer15LIST OF ABBREVIATIONSSec.- Sectionu/s- Under SectionIPC- Indian Penal CodeCr. PC- Code of Criminal ProcedureHC- High CourtSC- Supreme CourtSCC- Supreme Court CasesAIR- All India ReporterCr. LJ- Criminal Law Journalvs- VersusHon'ble - Honourable FIR- First Information ReportPW- Public WitnessPMR- Post Mortem ReportINDEX OF AUTHORITIES1. Cases Cited:Sr. No.CaseCitationBhanda Gorh v. State of AssamGosu Jairami Reddy vs. State of A.P. AIR 2011 SC 3147Hadi Kisani Vs. State of Orissa AIR 1966 Orissa 21Hanumat v. State of M.P. 1953 SCR 1091Ladha Shamji Dhanani Vs. State of GujaratAIR 1992 SC 956Madhu vs. State of Kerala2012(2) SCC 399Rishipal vs. State of Uttarakhand2013 Cri. LJ 1534 (SC)Sharad Birdhi Chand Sarda Vs. State of MaharashtraAIR 1984 SC 16222. Sites referred:1) .com2) Lawsuit3. Acts Referred:The Indian Penal Code, 1860The Code of Criminal Procedure, 1973The Indian Evidence Act, 1872Dowry Prohibition Act4. Books Referred:The Indian Penal Code by Ratanlal & DhirajlalThe Code of Criminal Procedure by Ratanlal & Dhirajlal The Indian Evidence Act, 1872STATEMENT OF JURISDICTIONThe jurisdiction to deal with this case is u/s. 374(2) and 380(1) of Code of Criminal Procedure, 1973.Section 374(2) Criminal Procedure Code:Any person convicted on a trial held by any other Court in which a sentence of 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.Section 380(1) Criminal Procedure Code:When accused are convicted in trial, then an appealable judgment or order has been passed in respect of any of such accused, all or any of the accused convicted at such trial shall have a right of appeal. FACTS OF THE CASEIn this case Mamta Dave (Deceased) and Arvind Dave (Appellants) got married on 18th February, 2005 with the consent of both the families and started living in Ahmedabad to the adjacent flat of parents of Mr. Arvind Dave. Both were working in an advertising company. Due to their busy schedule, however after few years their relationship got strained and were regularly quarrelling over frivolous issues. Arvind had an anticipating that Mamta had an affair with Jayesh Rai working with the deceased.On 13.03.2010 dead body of Mrs. Mamta Dave was found in the kitchen in burnt condition by her husband (Appellants) about which he immediately called and informed the Police.After being informed by the neighbor of Appellants about the death of her sister Respondent Mr. Anand Bhatt (PW-1) had rushed to the place of scene. The post-mortem report stated that the deceased was strangulated and thereafter, her body was burnt.He lodged an FIR against the Accused- Appellants for the same after two days of the incident had filed that the accused used to demand dowry from the deceased.The Trial Court after considering all the aspects, examining and cross examining all the parties stated that it seems that in the present case there are no eyewitnesses of the incident. However, the chain of the events in the present case is complete leaving no room for any other hypothesis except that the accused were responsible for the death of the victim.The Trial Court passed an order dated 26.4.2014 whereby the appellants/accused, who were charged with and tried for the offences punishable u/s 302, 304-B, 498-A and 201 IPC and u/s 3/4 of the Dowry Prohibition Act, were acquitted for the offences punishable u/s 304B, 498A and 3/4 of Dowry Prohibition Act, but they were convicted u/s 302 and 201 IPC. The Trial Court has sentenced the appellants to undergo life imprisonment with fine of Rs.5,000/- each u/s 302 IPC and in case of default of fine, to undergo additional two years' rigorous imprisonment. Appellants were further directed to undergo two years' rigorous imprisonment with fine of Rs.1,000/- each for the offence u/s 201 IPC and in case of default in payment of fine, to undergo six months' additional rigorous imprisonment.STATEMENT OF ISSUES ISSUE 1: Whether in the judgment declared by Hon'ble Trial Court evaluation required or not?SUMMARY OF ARGUMENTSISSUE 1: Whether in the judgment declared by Hon'ble Trial Court evaluation required or not?In affermation. The Hon'ble Trial Court has passed its judgment based on a single hypothesis and wrongly convicted the Appellants u/s 302 and 201 of IPC.There are many other hypothetical circumstantial evidence that may have been missed by the Hon'ble Trial Court like suicide, accidental death and many other circumstantial evidence in association to that which if not considered would be injustice to the Appellants.ARGUMENTS ADVANCEISSUE 1: Whether in the judgment declared by Hon'ble Trial Court evaluation required or not?After few years of marriage relationship of Arvind (Appellant) and his wife Mamta Dave got strained. Arvind (Appellant) had an anticipating that deceased had an affair with Mr. Jayesh Rai her colleague. On 13.02.2017Appellant had informed police that his wife had burned herself to death in the kitchen.Appellants herein after were convicted u/s 302 and 201 of IPC by the lower court as per the case filed by the Brother of deceased under 302, 304-B, 498-A and 201 IPC and u/s 3/4 of the Dowry Prohibition Act.In the in this case the accused has no good reason as to kill his wife and thus he has no motive.It is fairly well settled that while motive does not have a major role to play in cases based on eye witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. If depositions giving the eye witness account of incident that led to death of deceased are reliable, absence of a motive would make minor difference. Existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence.Secondly, The Post Mortem Report is deficient in its nature and so it is unreliable. There are no specifications about the wounds and the manner in which they are inflicted to the body of deceased. Moreover, getting strangulated in the kitchen itself is illogical. The report merely states that the "deceased was strangulated and thereafter, her body was burnt." Dictionary meaning of the word STRANGULATION is:-"To compress or constrict (a duct, intestine, vessel, etc.) so as to prevent circulation or suppress function."It does not anywhere mentions the part of the body strangulated, the manner or by what means the strangulated or if suspended. Furthermore medical officer being an expert witness, his testimony has to be assigned great importance. Thus in this case for the authenticity of the Post Mortem report oral testimony of Anatomic Pathologist is crucial.In the Case of Hadi Kisani Vs. State the court was of the view that-"The injury report or the post-mortem report given by a doctor is not substantive evidence and is inadmissible in evidence unless he is examined…..It may be proved by another doctor or the compounder available."In the Case of Bhanda Gorh v. State of Assam the court was of the view that-"Where the medical officer who conducted the post-mortem examination is not examined in court nor the post-mortem report is tendered in evidence, the same cannot be used as substantive evidence."Thus the medical opinion is merely of advisory nature in this case. Hence Medical opinion pointing to alternative possibilities cannot be accepted as CONCLUSIVE. Thus there is deficiency in recording and collecting the evidence, this failure should not be suffered by the Appellants.Medical evidence produced by the prosecution does not suitably support the prosecution story and hence the accused (Appellants) should be acquitted.Furthermore in this case Police was informed first by the Appellants and it seemed to be a case of suicide. The actual FIR was filed by the PW-1 Anand Bhatt i.e. the Brother of the deceased was two days after the incident. In view of the close relationship and affection any person in the position of the witness would naturally have atendency to exaggerate or add facts which may not have been stated to them at all. This is human pschychology and no one can help it. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a pschychological hatred against the supposed murderer, the court has to examine the evidence of interested witnesses with very great care and caution.Thus, "where the case arises out of an acute faction and witnesses examined are all interested, the evidence of the witnesses has to be scrutinized with great care and caution and should be EXAMINED IN THE LIGHT OF THE EARLIEST REPORT, the medical evidence and other surrounding circumstances."Since witnesses are the eyes and ears of justice, the oral evidence has primacy over the medical evidence. If the oral testimony of the witnesses is found reliable, creditworthy and inspires confidence, the oral evidence has to be believed, it should not be rejected on hypothetical medical evidence. In this case looking at the order passed by Hon'ble Trial Court it clearly seems that it has created a chain of the events and created a HYPOTHETICAL GROUND in convicting the Appellant u/s 302 and 201 of IPC. In extension to this there are no witnesses as to prove the ill treatment of the Appellants to the deceased.Thus the Hon'ble Trial Court was not wrong in making the direction and subsequently the decision of acquitting the accused Mr. Arvind Dave for the various charges under sections of 304-B, 498-A of IPC and and u/s 3/4 of the Dowry Prohibition Act but the Appellants believe that it has wrongly relied on the Fabricated Post Mortem Report as an evidence. Since the report is unclear in its own way for its specifications. The Appellants herein further believe that the Hon'ble Trial Court has further missed some of the Hypothecations which could also be the very much possible reasons of the death of the deceased which are described as follows:Firstly, the innocent conduct of the accused by informing the Police and in-laws immediately about the incident. This clearly defends the accused from being charged u/s 201 of IPC for tempering with the evidence which is not acceptable in the eyes of the law.Secondly, burning of body that too in the kitchen to a great extent implies to an accidental death due to explosion.Thirdly, the Hon'ble Trial Court has missed the point that the Husband of the deceased i.e. the Appellant had anticipation that his wife had an extra marital affair with her colleague Mr. Jayesh Rai. It may also be possible that in the absence of any other family members he had arrived at the house- killed her and then burnt the body to destroy the evidences.Fourthly, the deceased Mrs. Mamta Dave had herself set the kitchen on fire and then committed suicide with the guilt of harassment to her husband.Fifthly, some outsider like a third person may have killed her.Before a case against anaccused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat v. State of M.P.1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesisexcept that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency;4. They should exclude every possible hypothesis except the one to be proved; and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti.In this view the Appellants hereby cite the Landmark Judgment of Sharad Birdhi Chand Sarda vs State Of Maharashtra in which the Hon'ble Supreme Court of India held that: "Normally, the Supreme Court does not interfere with the concurrent findings of the fact of the courts below in the absence of very special circumstances or gross errors of law committed by the High Court. But, where the High Court ignores or overlooks the crying circumstance and proved facts, or violates and misapplies the well established principles of criminal jurisprudence or decision rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of doubt to the accused despite facts apparent on the face of the record or on its own finding or tries to gloss over them without giving any reasonable explanation or commits errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of the High Court. Suspicion, however, great it may be, cannot take the place of legal proof. A moral conviction however, strong or genuine cannot amount to a legal conviction supportable in law. The well established rule of criminal justice is 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence a very careful cautious and meticulous approach necessarily had to be made by the Court."Thus it is well settled that cognizance should be taken of the offence and not the offender. Hence, the material so considered by the Hon'ble Trial Court while convicting the accused- Appellant was groundless and so the case has no stands to stand upon as per the evaluation/ appreciation of Hon'ble Trial Court's evidence.PRAYERThe Appellants most humbly and respectfully prays before this Hon'ble High Court of Gujarat toAdmit and allow the present appeal.Set aside the judgment of Hon'ble Trial Court after appreciating the evidences.Wherefore in the light of the facts of the case, issues raised, arguments advanced and authorities cited the Counsel for the Appellants most humbly and respectfully prays to be pleased to pass any other such order, which this Hon'ble Court may deem fit in light of justice, equity and good conscience. ................
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