Memorial For Prosecution [PDF]

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TEAM CODE:



BEFORE THE HON’BLE COURT OF SESSIONS DURG



CASE NUMBER: _____/2014



STATE OF XANADU (PROSECUTION) VS. MANOHAR & RAHUL (DEFENCE)



FOR OFFENCES CHARGED UNDER THE SECTIONS 302, 465 r/w 34, 120B and 109 OF THE INDIAN PENAL CODE, 1860 & SECTIONS 66 & 66C OF THE INFORMATION TECHNOLOGY ACT, 2000 ( AS AMENDED BY THE IT AMENDMENT ACT, 2008)



MEMORIAL FOR THE PROSECUTION



Contents LIST OF ABBREVIATIONS................................................................................................................3 INDEX OF AUTHORITIES..................................................................................................................5 BOOKS AND COMMENTARIES REFERRED...............................................................................5 CASES CITED..................................................................................................................................7 ACT, RULES AND INSTRUCTIONS..............................................................................................9 STATEMENT OF JURISDICTION....................................................................................................10 STATEMENT OF FACTS...................................................................................................................11 STATEMENT OF CHARGES.............................................................................................................12 SUMMARY OF ARGUMENTS.........................................................................................................13 ARGUMENTS ADVANCED..............................................................................................................15 ISSUE.1.



MANOHAR AND RAHUL ARE CULPABLE UNDER SECTION 66 AND SECTION



66C OF THE INFORMATION TECHNOLOGY ACT, 2000..........................................................15 ISSUE.2.



WHETHER MANOHAR IS GUILTY OF THE MURDER OF KARAN?..................19



ISSUE.3.



WHETHER MANOHAR IS LIABLE FOR FORGERY?............................................21



ISSUE.4.



WHETHER



MANOHAR



AND



RAHUL



ARE



GUILTY



OF



CRIMINAL



CONSPIRACY?..............................................................................................................................23 ISSUE.5.



WHETHER THE ACTS OF MANOHAR AND RAHUL WERE IN FURTHERANCE



OF THEIR COMMON INTENTION DEFINED UNDER S. 34 OF THE IPC...............................25 ISSUE.6.



WHETHER RAHUL IS LIABLE FOR ABETMENT.................................................27



PRAYER.............................................................................................................................................29



LIST OF ABBREVIATIONS & A.P. AIR All. Art. Bom. Cal. Co. Corp. Cri. Cri. L.J./ Cr L.J. Cri. CrPC Del. Dr. Ed. / Edn. Etc.



And Andhra Pradesh All India Reporter Allahabad Article Bombay Calcutta Company Corporation Criminal Criminal Law Journal Criminal Code of Criminal Procedure Delhi Doctor Edition Et cetera



Evidence Act



Indian Evidence Act, 1872



Guj. HC Hon’ble IPC Kar. Ker Ltd. M. P. Mad. No. NOC Ors. p. pp. Punj. Pvt. Raj. SC



Gujarat High Court Honorable Indian Penal Code, 1860 Karnataka Kerala Limited Madhya Pradesh Madras Number Notes on cases Others Page Pages Punjab Private Rajasthan Supreme Court



SCC SCR Sec. T.N U.P. US/USA



Supreme Court Cases Supreme Court Reports Section Tamil Nadu Uttar Pradesh United States of America



v Vol.



Versus Volume



INDEX OF AUTHORITIES BOOKS AND COMMENTARIES REFERRED 1. Dr. Umadethan, Principles and practice of forensic medicine, 1st Edn. 2008, Swamy Law House, Kochi. 2. Bernard Knight, Lawyer’s Guide to Forensic Medicine, 2nd Edn. 1998, Cavendish Publishing Ltd., London. 3. C J Vyas, Determination of Death, 1993, Macmillan India Ltd. 4. B S Nabar, Forensic Science in Crime Investigation, 3rd Edn. Reprint 2008, Asia Law House, Hyderabad. 5. Parikh’s Textbook of Medical Jurisprudence and Toxicology, 6th Edn. Reprint 2004, Medical Publications, Bombay. 6. Jaspal Singh J., Indian Penal Code, 1st Edn. 1998, AIR Publication, Nagpur. 7. B R Sharma, Forensic Science in Criminal Investigation and Trials, 4th Edn. 2003, Universal Law Publishing Co. Pvt. Ltd. 8. Modi’s Medical Jurisprudence and Toxicology, 23rd Edn., LexisNexis Butterworths. 9. Textbook of Forensic Medicine and Toxicology, 14th Edn. Reprint 2007, Paras Publishing, Hyderabad. 10. Ratanlal and Dhirajlal’s Law of Crimes, Vol I, 25th Edn. Reprint 2004, Bharat Law House, New Delhi. 11. Ratanlal and Dhirajlal’s Law of Crimes, Vol II, 25th Edn. Reprint 2004, Bharat Law House, New Delhi. 12. Basu’s Code of Criminal procedure, Vol I, 10th Edn. 2007, Ashoka Law House, New Delhi. 13. C D Field, Expert Evidence, 4th Edn. Reprint 2009, Delhi Law House. 14. R A Nelson’s Indian Penal Code, 9th Edn. 2003, LexisNexis Butterworths. 15. Forensic Science in Investigation of a crime, Padmashri Dr. S Subramanian, 1st Edn. 2007, S Gogia and Company, Hyderabad. 16. Justice V V Raghavan, Law of Crimes, 5th Edn. Reprint 2001, India Law House, New Delhi. 17. S M A Qadri, Ahmad Siddique’s Criminology, 5th Edn. Reprint 2007, Eastern book Company. 18. Ratanlal and Dhirajlal , The Indian Penal Code, 29th Edn. 2002, Wadhwa Nagpur.



19. B R Sharma, Scientific Criminal Investigation, 2006 Edn., Universal Law Publishing Company. 20. Sarkar on Criminal Procedure, 8th Edn. Reprint 2004, India Law House. 21. S V Joga Rao, Law of Evidence, 17th Edn. 2001, Butterworths, New Delhi. 22. Ratanlal and Dhirajlal, Law of Evidence, 21st Edn. Reprint 2005, Wadhwa and Company, Nagpur. 23. P S A Pillai, Criminal Law, 9th Edn. 2000, Butterworths, New Delhi. 24. Rodney D Ryder, Guide to Cyber Laws, 2nd Edn. 2003, Wadhwa Nagpur. 25. Justice Yatindra Singh, Cyber Laws, 3rd Edn. Reprint 2008, Universal Law Publishing Company. 26. Cyber Law – Text and Cases, 2nd Edn. 2004, Thomson South-Western West. 27. R P Kathuria, Supreme Court on Criminal Law, 3rd Edn. 1984, Kathuria’s Publication. 28. Dr. Gupta and Agarwal, Information Technology – Law and Practice, 1st Edn. 2009, Premier Publishing Company . 29. Dr. (Sir) Hari Singh Gour, Penal Law of India, 11th Edn. in 4 volumes Reprint 2004, Law Publishers (India) Pvt. Ltd. 30. J C Smith, Smith and Hogan Criminal Law – Cases and Materials, 8th Edn. 2002, LexisNexis Butterworths. 31. Basu’s Indian Penal Code (Law of Crimes), Vol I, 9th Edn. Reprint 2004, Ashoka Law House. 32. Cases and Materials on Code of Criminal Procedure, 1973, 2nd Edn. 1982, Eastern Book Company. 33. Criminal Manual 2005, Universal Law Publishing Company. 34. Sudipto Sarkar and B R Manohar, Sarkar’s Law of Evidence, Vol II, 16th Edn. Reprint 2008, Wadhwa and Company, Nagpur. 35. Dr. K N Chandrasekharan Pillai, R V Kelkar’s Criminal Procedure, 5th Edn. 2008, Eastern Book Company. 36. Sarkar’s Commentary on the Law of Evidence, Vol I, 2nd Edn. Reprint 2008, Dwivedi Publishing Company. 37. C. Gringas, ‘To be great is to be misunderstood: the Computer Misuse Act, 1990’(1997) 3 Computer and Telecommunication Law Review.



CASES CITED 1. Amiruddin Salebhoy AIR 1923 Bom 44 2. Ammini v. State of Kerala, AIR 1998 SC 260 3. Barendra Kumar Ghose AIR 1925 PC 1 4. Barendra Kumar Ghose v. King Emporer, (1910) 11 Cri LJ 453 5. Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682 6. Chunku AIR 1931 All 258 7. Dhansai v. State of Orissa, AIR 1969 Ori 105 8. Dhunum Kazee (1882) 9 Cal 53 9. E. K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066 10. Faguna Kanta Nath AIR 1959 SC 673 11. Feda Hossein (1881) 10 CLR 184 12. George Kutly v. State of MP, 1992 Cr Lj 1663 (ker) 13. Gurbachan Singh v Satpal Singh AIR 1990 SC 209 14. Hardev Singh v. State of Punjab, AIR 1979 SC 179 15. State of Maharashtra v. Kalu Shrinivasam, AIR 1980 SC 879 16. Intel Corps v. Hamidi, 7/P3d 296[Cal 2003] 17. International Airport Centres v. Citrin, 440 F3d 418 (7th Cir. 2006). 18. La Aung (1906) 12 Burma LR 70 19. Lennart Schussler v. Director of Enforcement, AIR 1970 SC 549 20. Lim Hoe (1894) 1 UBR (1892-1896) 279 21. Maqsoodan v. State of UP, 1983 Cr LJ 218 (SC) 22. Mohan Lal Pangasa AIR 1974 SC 1144 23. Govinda Reddy Krishna AIR 1960 SC 29 24. Mohanan Kani v. State of Kerala, (1993) Cur Cri R 702 (DB) (Ker) 25. Rajurant Singh v. State of Kerala, AIR 1966 SC 1874 26. Nga Maung v. Emperor, (1905) 6 Cri LJ 389 27. Pandurang v. State of Hyderabad, AIR 1955 SC 216 28. Bhopal Singh v. State of Rajasthan, AIR 1968 Raj 305 29. Parimal Chatterji AIR 1932 Cal 760 30. Pauna v. Union Territory of Chandigarh, AIR 2011 SC 2545. 31. Muhammad Saeed Khan (1898) 21 All 113, 115. 32. Prem Narain AIR 1957 All 177 33. Province of Bihar v Surendra Prasad Ojha AIR 1951 Pat 86 34. R. v. Bow Street Magistrate Court and Allison, [2000] 2 AC 216 35. RK Dalmia v. Delhi Administration, AIR 1962 SC 1821 36. Sarojini v. State of MP, 1993 Supp (4) SCC 632 37. Sharif Ahmad Alias Achhan, (1956) 2 All 188 38. Ramashish Yadav v. State of Bihar, (1999) 8 SCC 555 39. State of HP v. Krishnan Lal, AIR 1987 SC 773 40. State of UP v. Iftikhar Khan, 1973 Cr LJ 636 (SC) 41. Surjit Singh v. State of Punjab, 1983 Cr LJ 1111 (SC) 42. State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC) 43. Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974 SC 514 44. Vinod Kaushik v. Madhvika Joshi, MANU/ CY/0001/2011 45. Yash Pal v. State of Punjab, AIR 1977 SC 2433



ACT, RULES AND INSTRUCTIONS 1. 2. 3. 4.



The Indian Penal Code, 1860 The Criminal Procedure Code, 1973 The Indian Evidence Act, 1872 The Computer Misuse Act, 1998



STATEMENT OF JURISDICTION



The prosecution, State of Xanadu hereby submits the Memorandum for the Prosecution filed under S.26 (a) (ii) read with Schedule I & S. 220 of the Code of Criminal Procedure 1973 before this Hon’ble Sessions Court charging the accused under S.302, S. 465 r/w S. 34, S.120B & S.109 of the Indian Penal Code, 1860 and S. 66 & S. 66C of the Information Technology Act, 2000 (as amended by the IT Amendment Act, 2008).



STATEMENT OF FACTS 



Manohar lived with his uncle Karan, after losing his parents, he was intelligent and got admission in TMC college in 2011. There, He befriended Rahul, who was a tech freak, and became habitual of borrowing money from him. Rahul once decrypted







Karan’s online banking password by using a device and transferred money. Karan was obese and having other ailments too. On May 21, 2014 when he was ill, he informed Manohar about 2 Crore insurance policy that was taken for his (Manohar’s)







benefit. He also gave permission to transfer money in case of emergency. Devika (Karan’s wife) didn’t pay Manohar’s College fee when Karan was ill, this led to an altercation when manohar inquired about this. The next day Karan asked Manohar to transfer some money to his account for college fee. Manohar transferred







2.5 Lakhs. The next day Manohar visited Karan, Suddenly Karan started coughing heavily and complained of chest pain. Dr. Choudhry was not in town and unreachable. Manohar wrote name of medicine ‘Angispan’ in liquid form and asked Raghav to get it and he administered it. Karan was quite for about half an hour. Suddenly he developed fits







and seizers and regardless of Manohar’s attempt to retrieve him, he passed away. Dr. Chaudhary said though the medicine as such was harmless, but the its







combination with other medicines could be fatal. if proper care wasn’t taken. While arranging belongings of karan, Devika found the insurance policy of 2 Crores in Manohar’s name and got awfully suspicious of Manohar’s actions. She immediately called the police and informed about her suspicion of the circumstances leading to Karan’s death. The police filed the final report before the Magistrate’s Court who took cognizance of the report and therefore committed the case to the Court of sessions in Durg, Xanadu.



STATEMENT OF CHARGES



Manohar and Rahul Gulati has been charged under Section 302, 120B, 465 r/w 34, 109 of Indian Penal Code, 1860 and Section 66 and 66C of IT Act, 2000 for the crime of Murder, Conspiracy, Forgery, Abetment and Hacking



SUMMARY OF ARGUMENTS The prosecution has charged the accused persons under S.66 and 66C of the IT Act, 2000, S.302, S.465 r/w S.34 and S.120B of the IPC. Furthermore, Rahul has been held liable under S.107 of the IPC. WHETHER THE ACCUSED ARE GUILTY FOR HACKING ? On the charges in the IT Act, it is contended that Rahul is liable for the offence of hacking by the fact of the insertion of the key logger device to crack Karan’s online banking password and the subsequent withdrawals made from the account and Manohar is liable for unauthorised access in the folders of Karan’s laptop to find his online banking password and for transferring Rs.25, 000 more than he was authorized to. WHETHER THE ACCUSED ARE GUILTY FOR MURDER ? On the charge of murder under S.302, the prosecution has proved that Manohar caused a bodily harm on Karan with the intent of doing so and with the knowledge of special circumstances that made him believe that the injury so caused was likely to cause the death of Karan. WHETHER THE ACCUSES IS GUILTY OF FORGERY ? On forgery, it is contended that Manohar dishonestly or fraudulently forged the prescription in Dr. Chaudhary’s name with the intent of causing damage to the public or a particular person and with the intent of committing fraud. It is contended that the acts were done in furtherance of the common intention of both Manohar and Rahul to commit the crimes so as to fulfil their final object of amassing Karan’s



wealth for themselves. Therefore, they are both to be held jointly and severally liable for all these acts. WHETHER THE ACCUSED ARE GUILTY OF CRIMINAL CONSPIRACY ? It is contended that the illegal acts of hacking, murder and forgery that were committed were in reference to an agreement between Manohar and Rahul to do an illegal act or a legal act by illegal means. They are therefore both to be held liable for all the crimes committed in reference to such an agreement and the crime of criminal conspiracy also. WHETHER THE ACCUSED IS GUILTY OF ABETMENT ? Rahul had instigated and goaded Manohar into committing the murder of Karan by frequent reminders of the riches that Manohar would see if his uncle would die one day. Furthermore, Rahul helped Manohar out with the commission of the crimes through his participation in the conspiracy to commit these crimes. Rahul is therefore liable for abetment by instigation as well as abetment by conspiracy.



ARGUMENTS ADVANCED



ISSUE.1.



MANOHAR AND RAHUL ARE CULPABLE UNDER SECTION



66 AND SECTION 66C OF THE INFORMATION TECHNOLOGY ACT, 2000. It is submitted that Manohar and Rahul are liable under Section 66 and Section 66c of the Information Technology Act, 2000 (IT Act). Here motive could be sufficiently established which becomes extremely relevant in cases dealing with circumstantial evidence.1 The motive of their act could easily be deduced from the fact circumstances. Manohar’s inherent need to match up to his much more affluent friends forced him to borrow money from Rahul on multiple occasions. To fulfil these monitory needs he had to resort to the aforementioned criminal acts. There are two acts which will be scrutinized to find out the culpability under the said sections of the Information Technology Act. The first act would be the act of inserting a device called key logger to track and extract password from Karan’s personal computer and then using the password for transferring money into Manohar’s account on multiple occasions. The second act would be the act of Manohar extracting the password of Karan’s bank account from his Laptop and then using it to transferring the sum of 2.5 Lakhs into his account instead of the authorised 2.25 Lakhs by Karan. The two acts will be referred to as Act 1 and Act 2 hereafter for the matter of convenience. Section 66 imposes criminal liability on a person who commits any crime under Section 43 of the said Act, who fraudulently or dishonestly, without permission of the owner or anyone in 1 Pauna v. Union Territory of Chandigarh, AIR 2011 SC 2545



charge of a computer (a) accesses or secures access to such computer, computer system or network, (b) extracts any data, (g) provides access to any person to facilitate access to a computer, computer system or network in contravention to the provision of the Act. Whereas section 66C imposes punishment for identity theft on any person who fraudulently and dishonestly makes use of electric signature, password or any other unique identification features of any other person. 1.1.



THE ACTIONS OF MANOHAR AND RAHUL COULD BE DEEMED TO BE CRIMINAL



ACTS



UNDER



SECTION



66



OF



THE



INFORMATION



TECHNOLOGY ACT, 2000. The requisite mens rea required here is specifically mentioned in the Section itself which state that the act shall be done dishonestly or fraudulently, which means, with the intention to deceive or cause injury and with the intention to cause wrongful gain to oneself or wrongful loss to another.2 With respect to Crimes related to cyber trespass in US law too, persons cannot be charged for such offences unless the accused is not sufficiently and adequately ‘warned’ or had ‘had the mens rea of committing a criminal act’. 3 In the present case, Rahul and Manohar hacked into Karan’s banking account with the use of a device called key logger and transferred sums of money into Manohar’s account clearly trying to defraud Karan and cause him a wrongful loss meanwhile enriching themselves with Karan’s money and therefore the requisite mental element is clearly established in the following case. The wordings of Section 43 seem to clearly run parallel to the Sections of the computer misuse statute in England. The word ‘permission’ could be read in reference to words such as ‘Access’ and ‘authorisation’ in the Computer misuse Act, 1990. 2 Sections 24 and section 25 of the Indian Penal Code, 1860. 3 Intel Corps v. Hamidi, 7/P3d 296[Cal 2003]



Section 17(2) and 17(5) of the computer misuse Act, 1990 sets out ways in which a person secures access and define authorized access by reference to access “of the kind in question”. The actus reus related to such acts to commit an offence is stated under s.1 (1) of the Act. In the R. v. Bow Street Magistrate Court and Allison case4, it was held that it is not the access to the computer that the person is working on which is contention but the fact that if that person had the permission to access that very document on the computer. The Act does not sanction those who access computers, its sanctions those who use computers to secure access to data and programs.5 In the case at hand, assuming but not contending that Manohar did have access to Manohar’s personal computer, he would still not have the authorization over the documents that he allegedly retrieved through the act of hacking and therefore the access of those documents could be found to be unauthorized and liable under Information Technology act, 2000. Rahul and Manohar, getting the key logger and inserting it in Karan’s computer, caused Karan wrongful loss and wrongful gain to themselves. With the intent that is clearly deducible to commit a crime under Section 66 of the Act and gain wrongful access to Karan’s computer. The intention becomes much clearer as an act under Section 66 was committed in pursuance of committing a future crime of misappropriation and identity theft under section 66C of the Information Technology act. This invariably leads to the guilt of Manohar and Karan sub clause (a), (b) and (g) of Section 66 of the act. Rahul with his established knowledge relating to computer technology and Manohar’s access to the computer lead us to the conclusion that this act could not have been committed with just any of the two persons singularly. Therefore, it is safe to conclude that Manohar and



4 R. v. Bow Street Magistrate Court and Allison, [2000] 2 AC 216 5 C. Gringas, ‘to be great is to be misunderstood: the Computer Misuse Act, 1990’ (1997) 3 Computer and telecommunication law review 213.



Rahul were co-partners in the commission of the crime. 6 Furthermore, the presence of key logger which was found plugged into Karan’s computer, them being seen by Raghav working on the PC for hours and Rahul connecting his laptop to the PC further establish the claim. 7 Regardless of the fact that whether a person knew the passwords, or made intelligent guesses, or used some software to crack the passwords, it is clear that there is unauthorised access if that authorisation did not exist at that very moment.8 1.2.



MANOHAR WAS LIABLE UNDER SECTION 66 AND SECTION 66C OF THE INFORMATION TECHNOLOGY ACT, 2000.



It is hereby submitted that Manohar was allowed to withdraw money from Karan’s account only under the condition that Karan be kept informed of withdrawals. Manohar’s fraudulent and dishonest intent is clear in his withdrawal of more than the normal amount. Assuming but not contending that Manohar had the permission in this case to withdraw the money, the fact that Rs.25, 000 more was withdrawn is evidence of such a fraudulent intent on his behalf. Moreover, it could be proved beyond doubt that there was no permission of authorisation given to Manohar to snoop through his Laptop and open any specific folder, which combined with the requisite mental element mentioned in Section 66, is itself a criminal offence. The onus is primarily on the person receiving the limited authorisation to act appropriately rather than on the person granting it and therefore the person granting it need not set out the acts which are permitted from the acts that are not.9 A mere reading of the wording of Section 66C, would be enough to comprehend that the act of using Manohar’s email and password to 6 Sarojini v. State of MP, 1993 Supp (4) SCC 632 7 George Kutly v. State of MP, 1992 Cr Lj 1663 (ker) 8 Vinod Kaushik v. Madhvika Joshi, MANU/ CY/0001/2011 9 International Airport Centres v. Citrin, 440 F3d 418 (7th Cir. 2006).



transfer money into his account to be an offence under the said section. Manohar, dishonestly and fraudulently acquired Karan’s password without his authorisation and therefore committing identity theft as mentioned in the section using Karan’s banking password identification in cyber space. Further, Manohar took advantage of the sordid condition of his uncle, seeing this as an opportunity to dishonestly defraud him. If the hypothesis suggested by the accused is fanciful, far-fetched or improbable, the court may reach to the conclusion that the prosecution has established the guilt of the accused,10 and therefore such arguments should be dismissed at face value by the honourable court. ISSUE.2.



WHETHER MANOHAR IS GUILTY OF THE MURDER OF



KARAN? It is humbly submitted by the prosecution that Manohar is indeed guilty of the murder of Karan under Cl. (2) of S.300 of the IPC. Cl. (2) does not as such require that the person committing the crime have the intent to cause death of that person. All is required to prove murder under Cl. (2) of S.300 is the intention of the offender to cause such bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular person concerned11. Therefore, if the accused has special knowledge of certain ailments of the deceased (2.1), and causes such bodily injury with the intent (2.2) and knowledge that due to that particular ailment, there is all likelihood to cause the death of that individual through the infliction of this bodily harm (2.3), he shall be liable for murder under this section12.



10 Mohan Lal Pangasa AIR 1974 SC 1144; Govinda Reddy Krishna AIR 1960 SC 29 11 Mohanan Kani v. State of Kerala, (1993) Cur Cri R 702 (DB) (Ker); Rajurant Singh v. State of Kerala, AIR 1966 SC 1874



12 Nga Maung v. Emperor, (1905) 6 Cri LJ 389



2.1.



MANOHAR HAD KNOWLEDGE OF CERTAIN AILMENTS THAT KARAN WAS SUFFERING FROM.



It is submitted by the prosecution that Manohar had knowledge of the specific ailments that Karan was suffering from. It has been established that Manohar had been taking care of Karan ever since Karan’s illness was detected. Furthermore, as a medical student, and a good one more so, Karan would understand the doctor’s diagnosis of Karan. Therefore, it can be sure that Manohar had indeed an idea of the ailments that Karan was suffering from. 2.2.



MANOHAR HAD THE INTENT OF CAUSING SUCH BODILY INJURY AS LIKELY TO CAUSE THE DEATH OF KARAN.



It is known that Manohar, as a medical student, has learned of the effect of medicines. Therefore, with such knowledge, the act of Karan of injecting a higher dosage of Angispan than necessary is proof of the intent to commit the requisite bodily harm. Furthermore, from the frequent discussions between Manohar and Rahul, and Manohar’s subsequent acting upon such discussion by killing Karan, intent to commit the murder can be understood. Lastly, it is contended by the prosecution that the act of murder was in furtherance of the common intention of both Manohar and Rahul to fulfill their common object of amassing Karan’s wealth for their benefit. 2.3.



THERE WAS A LIKELIHOOD OF CAUSING THE DEATH OF KARAN FROM THE INJURY INFLICTED UPON HIM.



It is submitted by the prosecution that there was likelihood to cause the death of Karan from the injury inflicted on him by Manohar. From the list of the items taken as evidence from the scene of the crime for the sake of the investigation, it can be seen that a total of four syringes were used. Furthermore, in taking care of Karan, Manohar would have had an idea about the



medicines he took as well. Lastly, Manohar also had the knowledge that due to Karan’s liver disease, his body would be able to metabolize medicines much faster. This knowledge can be inferred from the fact that he was a third year medical student and would have as such learned about the same. Also, from his internship, Manohar would have gained valuable experience working with alcoholics. Therefore, the above facts fall under S.4 of the Evidence Act as those facts that the Court shall presume. Therefore, it is clear that Manohar had the knowledge of the effect of an overdose of medicines, and that Manohar knew of Karan’s faster metabolizing rate. Hence, it can be understood from the facts thus proved, that Manohar had the knowledge that the bodily injury thus inflicted on Karan was likely to cause his death. Therefore, with proof of Manohar’s actions against Karan, it is submitted that he be held criminally liable for Karan’s murder and that Rahul be held liable for the same as the act was done so in furtherance of the common intention of both the accused persons, making them liable for the act under S.34 and S.120B of the IPC. ISSUE.3.



WHETHER MANOHAR IS LIABLE FOR FORGERY?



It is humbly contended that Manohar is guilty of forgery under section 463 of Indian Penal Code, 1860. It is to be noted that essential elements to be satisfied to constitute the offense of forgery are proof that the document or part of the document has been falsified (1.1) dishonestly or fraudulently (1.2). Furthermore, an intent of the accused (a) to cause damage or injury to i) public, or ii) any person; or (b) to cause any person to enter into express or implied contract (c) to commit fraud or so that fraud may be committed(1.3) must be proved beyond reasonable doubt by the prosecution 3.1.



A FALSE DOCUMENT HAS BEEN MADE.



To constitute the offence of forgery the simple making of a ‘false document’ is sufficient, with the intention that it should injure other.13 It includes dishonestly or fraudulently making, signing, sealing or executing a document, or a part of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed, by authority of a person by whom or by whose authority it was not made, signed, or executed. In this case the use of prescription by Manohar for getting Angispan without any authority given to him by Dr Choudhry amounts to making of false document. Making of a document does not necessarily mean signing or otherwise executing it. It only means creating or bringing into existence. 14 Making a false document does not consist in writing without doing anything towards its execution. 15 In this case Manohar brought the false document in existence and executed it by asking Raghav to use it to get the medicine. 3.2.



THE DOCUMENT HAS BEEN MADE DISHONESTLY OR FRAUDULENTLY.



To constitute the offence of forgery ‘false document’ should be made dishonestly or fraudulently. The test as to the fraudulent character of a deception for criminal purpose as explained by Stephen16 is whether an advantage that could have derived a benefit that could not have been derived if the document were true. In this case the author derived advantage as the prescription was made with expectation of advantage, as to get medicine, and to deceive the shopkeeper so that he give the medicine by thinking that it is prescribed by doctor.



13 Feda Hossein (1881) 10 CLR 184 14 Province of Bihar v Surendra Prasad Ojha AIR 1951 Pat 86 15 Lim Hoe (1894) 1 UBR (1892-1896) 279 16 History of Criminal Law, Vol II, P 121. This extract is quoted in several Indian cases.



3.3.



MANOHAR HAD THE INTENT TO COMMIT THE CRIME.



Intention is the necessary requirement for the offence of forgery. It is sufficient that there should be the intention of causing it. 17 According to Sind judicial commissioner’s court the proper administration of justice is so vital to the ordered existence of a civilised community that intent to defraud justice is something very closely affecting the public and hence can be said to cause damage or injury to the public and to the party concerned in the particular case.18 Where there is an intention to deceive and by means of the deceit to obtain an advantage there is a fraud, and if a document is fabricated with such intent is a forgery. 19 A general intention to defraud, without the intention of causing wrongful gain to one person or wrongful loss to another is not forgery.20 ISSUE.4.



WHETHER MANOHAR AND RAHUL ARE GUILTY OF



CRIMINAL CONSPIRACY? S.120B provides for the punishment for the crime of criminal conspiracy. As per S.120A of the IPC, two or more people are guilty of criminal conspiracy when they agree to do an illegal act or a legal act by illegal means (4.1). Therefore, Rahul and Manohar are together liable for criminal conspiracy as well as all criminal acts committed by either in reference of such an agreement(4.2). 4.1.



THERE WAS AN AGREEMENT IN THIS CASE TO DO AN ILLEGAL ACT OR A LEGAL ACT BY ILLEGAL MEANS



17 Chunku AIR 1931 All 258 18 Emperor v. Ahmed Khan S/o Fateh Khan and Ors,AIR 1943 Sind 46 (49) 19 Per Bannerji, J, in Muhammad Saeed Khan (1898) 21 All 113, 115 20 Dhunum Kazee (1882) 9 Cal 53



It is not necessary that there should be an express proof of the agreement for from the facts and conduct of the parties, the agreement can be inferred 21. It is not even necessary to establish by direct evidence that the accused person did enter into such an agreement 22. It is generally a matter of inference deduced from certain special acts of the accused, done in pursuance of an apparent criminal purpose in common between them 23. The evidence of transition of thoughts and the sharing of the unlawful design need only be proved 24. In the present case, numerous instance showing that Manohar was a highly ambitious person and his talks with Raghav where he equated money with success which have been corroborated by the statements of Raghav and Devika. Furthermore, the fact that Manohar was in debt to Rahul and the fact that Rahul was in need of the money, therefore demanding it to be returned at the earliest is proof of the similar interest of Rahul in Karan’s money. Also, Rahul’s frequent reminders to Manohar of the money that Manohar would inherit if Karan met an early demise are evidence of each accused having the knowledge of the other’s intention. Once, a reasonable grounds for conspiracy has been established, anything said, done or written by one of the conspirators in reference to common intention, is relevant against the other not only for the purpose of proving the existence of the conspiracy, but also for proving that the other person was party to it 25. Therefore, the hacking of the deceased, Karan’s password by both Manohar and Rahul is proof of their conspiracy to amass all of Karan’s wealth. Lastly, an agreement to do an illegal act which amounts to a conspiracy will continue 21 Ibid 22 Barendra Kumar Ghose v. King Emporer, (1910) 11 Cri LJ 453 23 Ammini v. State of Kerala, AIR 1998 SC 260 24 E. K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066 25 Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682



as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement 26. Therefore, due to their being no evidence that the conspiracy had indeed ended, or that their object was indeed fulfilled, it is contended that the conspiracy continued to include the crimes of murder and forgery conducted. Therefore, all the criminal acts conducted in this case, can be looked at as one entire criminal conspiracy, punishable under S.120B of the IPC. 4.2.



BOTH RAHUL AND MANU ARE LIABLE FOR CRIMINAL CONSPIRACY AND ALL THE ACTS COMMITTED IN REFERENCE TO THE AGREEMENT BETWEEN THE TWO



If pursuant to the criminal conspiracy, the conspirators commit several offenses, then all of them will be liable for the offenses even if some of them had not actively participated in the commission of the offense27. It is not necessary that all conspirators must know each and every detail of the conspiracy as long as they are co-conspirators in the main objects of the conspiracy28. Even if some steps are resorted to by one or two of the conspirators without the knowledge of others, it will not affect the culpability of those others when they are associated with the object of the conspiracy29. In this case, Rahul’s persistent instigating of Manohar to kill his uncle is evidence of his involvement and knowledge of Karan’s murder. However, assuming but not contending that Rahul did not actually know that Karan would be murdered by Manohar to further the ultimate objectives of the conspiracy, he would still be liable for Karan’s murder under S. 120B of the IPC as this act was still committed in reference to the 26 Lennart Schussler v. Director of Enforcement, AIR 1970 SC 549 27 State of HP v. Krishnan Lal, AIR 1987 SC 773 28 RK Dalmia v. Delhi Administration, AIR 1962 SC 1821 29 Yash Pal v. State of Punjab, AIR 1977 SC 2433



common objectives of Manohar and Rahul, solidified by their agreement to enter into a criminal conspiracy. ISSUE.5.



WHETHER THE ACTS OF MANOHAR AND RAHUL WERE IN



FURTHERANCE OF THEIR COMMON INTENTION DEFINED UNDER S. 34 OF THE IPC It is contended by the prosecution that both Manohar and Rahul had a common intention to commit the crimes in order to attain their common final object of amassing Karan’s wealth. S.34 has been applied to cases wherein the offense was committed by only one of two or three persons, although all of them had the common intent to commit the same. In furtherance of the common intention, several persons must have done several acts which together constitute an offense. In such a situation S.34 provides for each to be liable for the entire act as a whole30. The major elements that are required to be proved while proving an individual's liability under S. 34 of the IPC include the commission of an illegal act by several persons (5.1) and that such an act was done in the furtherance of the common intention (5.2). 5.1.



THERE WAS THE COMMISSION OF AN ILLEGAL ACT



It is not necessary to prove an overt act by a particular person in order to convict the person. Criminal act done by all or one of them in furtherance of the common intention of all would suffice to convict all the people31. It is contended that each criminal act of hacking, murder and forgery were all done by one of them in the furtherance of their common intention.



30 Dhansai v. State of Orissa, AIR 1969 Ori 105 31 State of UP v. Iftikhar Khan, 1973 Cr LJ 636 (SC); Surjit Singh v. State of Punjab, 1983 Cr LJ 1111 (SC); State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC)



Lastly, culpability of a person under S. 34 cannot be excluded merely because he was not present at the scene of the occurrence of the particular offense for which he has been charged32. 5.2. THE CRIMINAL ACT WAS DONE IN FURTHERANCE OF THE COMMON INTENTION OF MANOHAR AND RAHUL Common intention comes into being prior to the commission of the act in point of time 33. Therefore, there need be a prior plan to commit a crime. This pre-arranged plan however need not be an elaborate one34. A mere existence of a pre-arranged plan that the offense be conducted is enough to satisfy this element. In most circumstances, proof of common intention has to be inferred from the act or conduct or other relevant circumstances of the case at hand35. In the case of hacking, the bringing of the key logger by Rahul to Manohar’s house beforehand in order to insert in Manohar’s computer is proof of the existence of a common intention between the two to commit the offense of hacking. Also, a single criminal act may involve and give rise to several offenses. The common intention must be to commit the particular crime, though the actual crime may be conducted by anyone sharing the common intention36. Therefore, it is contended by the prosecution that while the act of murder was conducted in furtherance of the common intention between the two accused which can be inferred from their frequent discussions on what it would mean if Karan were to die one day,



32 Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974 SC 514 33 Sharif Ahmad Alias Achhan, (1956) 2 All 188; Ramashish Yadav v. State of Bihar, (1999) 8 SCC 555 34 Pandurang v. State of Hyderabad, AIR 1955 SC 216; Bhopal Singh v. State of Rajasthan, AIR 1968 Raj 305 35 Maqsoodan v. State of UP, 1983 Cr LJ 218 (SC) 36 Hardev Singh v. State of Punjab, AIR 1979 SC 179; State of Maharashtra v. Kalu Shrinivasam, AIR 1980 SC 879



a common intention to commit the offense of forgery can be inferred as it is merely an offense that was given rise to in the commission of the initial intended crime of murder. ISSUE.6.



WHETHER RAHUL IS LIABLE FOR ABETMENT



It is humbly submitted that Rahul is liable for abetment by instigation under Section 107, where one person is urged forward by a person who will not himself act, but who procures or instigates another to put in execution his criminal intention. 37 Under the section, a person who actively suggests another to do an act by any means or language, direct, or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement is liable for abetment by instigation (6.1).38 6.1.



MANOHAR WAS INSTIGATED BY RAHUL TO COMMIT THE OFFENSE



The word ‘instigate’ means to goad or urge forward or to provoke, incite, urge or encourage doing an act.39 There has to be a reasonable certainty in regard to the meaning of the words used by the ‘incitor’ in order to judge whether or not there was an incitement, but it is not necessary in law to prove the actual words used for the incitement. 40The offence is complete as soon as the abettor has incited another to commit a crime, whether the latter consents or not, or whether, having consented he commits the crime or not. This form of abetment depends upon the intention of the person who abets, and not upon the act, which is actually



37 M & M 83 38 Amiruddin Salebhoy AIR 1923 Bom 44 39 Parimal Chatterji AIR 1932 Cal 760 40 Prem Narain AIR 1957 All 177



done by the person whom he abets.41 Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart.42 The Supreme Court has laid down that a person who engages with another in a conspiracy for the doing of an act which is an offence; he abets such an offence and would be guilty of abetment under section 115 or section 116, even if the offence abetted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed.



43



For the



purpose of abetment by instigation it is immaterial whether the person instigated commits the offence or not or the persons conspiring together actually carryout the object of the conspiracy.44



41 La Aung (1906) 12 Burma LR 70 42 Barendra Kumar Ghose AIR 1925 PC 1 43 Gurbachan Singh v Satpal Singh AIR 1990 SC 209 44 Faguna Kanta Nath AIR 1959 SC 673



PRAYER



Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities cited; this Hon’ble Court may be pleased to: Find that A. The deceased, Mr. Karan was murdered. B. The accused Mr. Manohar Lal and Mr. Rahul Gulati have committed the offences under the sections 302, 465 r/w 34, 120B and 109 of the Indian Penal Code, 1860 & sections 66 & 66c of the Information Technology Act, 2000 ( as amended by the IT Amendment Act, 2008). And pass any other order that it may deem fit in the ends of justice, equity, and good conscience. All of which is respectfully submitted.



Place:



S/d_________________



Date:



(Counsel on behalf of the Prosecution)