University Roll Number L02/LLB/161172

Registration Number L02-1221-0167-16

Examination Name 5 year BA LLB examination 10th
semester
Subject Moot Court Exercise and
Internship
Paper Number IV
MEMORIAL 1
 Memorial on behalf of the defendant 2

TEAM CODE:

XYZ Moot Court Competition, 2021

IN THE HON'BLE HIGH COURT OF MUMBAI

Amar Sharma
(Appellant)

v.

State of Maharashtra
(Defendant)

For appeal against the verdict of The Sessions Court

Most Respectfully Submitted before the Hon'ble Chief Justice and Other
Judges of High Court of Bombay

MEMORANDUM ON BEHALF OF THE DEFENDANT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................................................................... 5

INDEX OF AUTHORITIES ............................................................................................................................................ 6

STATEMENT OF JURISDICTION ................................................................................................................................. 8

STATEMENT OF FACTS ............................................................................................................................................... 9

STATEMENT OF CHARGES ....................................................................................................................................... 13

SUMMARY OF ARGUMENTS ..................................................................................................................................... 14

ARGUMENTS ADVANCED ....................................................................................................................................... 15

PRAYER ..................................................................................................................................................................... 19
 LIST OF ABBREVIATIONS

& And

AIR AU India Report

Anr. Another

St. State
IPC Indian Penal Code

sec Supreme Court Cases

u/s Under section

v. Versus

5
 INDEX OF AUTHORITIES

LIST OF CASES:

1. State v. Husan Bano

2. A. Subash Babu v. State of A.P. (2011) 7 sec 616
3. u. Suvetha v. State, (2009) 6 sec 757
4. Reema Aggarwal v. Anupam, (2004) 3 sec 199
5. Gananath Pattnaik v. State of Orissa, (2002) 2 sec 619
6. Gurcharan Singh v. State of Punjab, (2017) 1 sec 433
7. Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 sec 48

BOOKS:

1. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

2. P.S.A. Pillai, Criminal Law (13th Ed. 2017)

3. Gaur, KO, Criminal Law: Cases and Materials, (6th Ed. 2009)

4. Gupta and Dighe, Criminal Manual, (7th Ed. 2007)

5. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

6. Modi's Medical Jurisprudence and Toxicology, (23rd Ed. 2010)

7. Harris, Criminal Law, (22nd Ed. 2000)

8. I, Ill, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

Memorial on behalf of the defendant 6

Downloaded by Vaibhav Pawar ([email protected])

WEBSITES:

1. http:/ /www.scconline.com
2. http://www.manupatrafast.com
3. http://www.findlaw.com
4. http://www.judis.nic.in
5. http:/ /www.indiankanoon.com

STATUTES

1. The Indian Evidence Act, 1872 (Act 18 of 1872)

2. The Indian Penal Code, 1860 (Act 45 of 1860)

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 STATEMENT OF JURISDICTION

The Hon'ble High Court of Bombay exercises Appellate Jurisdiction to

hear the matter under. The respondent humbly submits to jurisdiction
of the Hon'ble Court which has been invoked by the
appellant.
 STATEMENT OF FACTS

1. Disha Gupta was a 22-year-old girl from Delhi. Disha wanted to pursue her acting
career therefore she moved to Mumbai. Disha was alone in the new city and had no
friends or financial support from her family, because family opposed her move to
Mumbai. She auditioned for a number of projects but faced rejections in all. Frustrated
by her failures, she tried to commit suicide twice but was unsuccessful in her attempts.

2. In September 2018, she decided to attend a party graced by a number of Bollywood

stars and industry bigwigs, in the hope of meeting a few directors. There she met
Amar Sharma, one of the most renowned film directors of contemporary times. At
the age of 40, Amar had already directed numerous super hit movies and was known
as the ‘career builder’ for young actresses. Disha and Amar got talking at the bar
and eventually exchanged numbers. They talked and met frequently for a few
months post which Disha confessed her love for Amar and moved into his house.
Amar was in a relationship with Disha after three failed marriages.

3. The Media Agencies posted the latest updates about ‘the newest couple in B town’.
Blind items also began circulating on social media about Disha using Amar to get
into the film industry. The constant media scrutiny and trolling on social media
made Disha vulnerable. Her parents and friends too boycotted her, citing
embarrassment over her actions. All this took a toll on Disha and she pleaded Amar
to cast her in his upcoming dream project soon so that she could showcase her
talent. Amar had already casted the actors and invested huge amount in his dream
project but Disha’s constant pleading along with her negative publicity in the
industry adversely affected Amar to such an extent that he could not focus on his
project which gave a huge career set back to him. The fights between the two
increased day by day.

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4. Three months later, Amar demanded Disha to leave his house. He claimed that girls
like her come begging to him every day and he can get anyone he wishes. Disha
begged him not to force her to leave the house and promised that she would stop
nudging him. She told Amar that she was not in a fit state of mind and would like to
seek medical help for the same. Amar immediately dismissed her idea, telling her
that if the Media Agencies found out about her psychiatrist visits, they would label
her crazy and she could effectively bid goodbye to her career then. He advised her to
rest at home and meditate instead. The relationship between the two continued to
worsen and Disha had socially withdrawn, confining herself to the house, whereas
Amar was still socially active and was seen cosying up to young women at parties.
In November 2019, a picture of him and a young debutante actress, holidaying at a
secluded island in the Maldives, went viral on social media and got the rumour mills
churning about his separation with Disha. A week later, he released a statement,
clarifying that ‘all is well’ between them and that they were one in their heart and
soul.

5. On 5th February 2020, at around 2 am, a call was received at Shivajinagar Police station
stating that a woman with 75% burn injuries was brought to their hospital. The police
rushed to the hospital where the victim was identified as Disha. Post regaining
consciousness after a week, she gave a statement to the Police. According to her, on that
fateful night, Amar returned home from a party, visibly inebriated. Upon unlocking the
door, he saw Disha standing near the stove, holding a can of a blue coloured liquid. He
immediately realized that the liquid was kerosene and he rushed towards her, fuming
with rage. He called her crazy and said that she had ruined all the fun in his life. He
attempted to kill her by pouring kerosene on her exclaiming that if she was so firm on
ending her life, he would make things easier for her. Immediately after Amar threw
kerosene on her, she was soon engulfed in flames as her dress caught fire from the stove
right behind her.

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6. She said that over the past year, he denied her psychiatric help and mentally
manipulated her while cheating on her with several other girls. Disha went on to
state that both of them had gotten married at a small temple near Mumbai in
October 2019 and Amar had also gifted her a flat in Bandra as her ‘wedding gift’.
However, Amar was adamant that they do not reveal the factum of their marriage to
anyone as it would affect their careers. It was only last month when she found out
that Amar’s divorce proceedings with his previous wife were still pending before
the court. Based on her statement, the Police filed charges under Section 307 and
Section 498A of the Indian Penal Code, 1860 against Amar.

7. During the course of the trial at Sessions Court, Mumbai, Amar denied all charges
of cruelty and claimed that he could not be held liable under Section 498A as he was
not the victim’s ‘husband’ as contemplated under the section. He stated that there
was no valid marriage between him and Disha. The fact that his previous divorce
proceedings were sub judice was never hidden and was reported in a number of
newspapers as well. His act of merely putting sindoor and mangalsutra on Disha at
the temple, upon her persistence, could not be construed as ‘marriage’ as it was only
done for Disha’s happiness. With respect to the charge of attempt to murder, Amar
claimed that when he entered the room on that fateful night and saw Disha ending
her life yet again, he was in a state of utter shock. He admitted that in a fit of
uncontrollable rage, he did pour the kerosene on her but never intended to kill her.
He was unaware that the stove behind was lit which actually led to Disha’s clothes
accidentally catching fire and before he could react, she was completely engulfed in
flames.

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8. The Sessions Court rejected Amar’s plea that the incident was a mere unfortunate
accident and convicted him U/s 307 of IPC for attempting to murder Disha. The
court also held that a person who enters into a relationship in the nature of marriage
cannot be allowed to take the plea that he cannot be held liable U/s 498A of IPC as
there was no valid marriage; thereby convicting him U/s 498A of IPC for subjecting
her to cruelty over the course of their relationship. He was sentenced to 10 years
rigorous imprisonment. Aggrieved by the conviction, Amar appealed against the
order of the Sessions Court before the Hon’ble High Court of Bombay.

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 STATEMENT OF CHARGES

Charge 1

Amar has been charged under The Indian Penal Code, 1860- Section 498A
for subjecting a woman(wife) to cruelty by husband or by any relative of
husband.

Charge 2

Amar has been charged under Section 307 IPC for attempt to murder.
 SUMMARY OF
ARGUMENTS

I. Issue 1: Whether Amar is guilty of subjecting Disha to cruelty?

It is humbly submitted before the Hon'ble High Court that the accused is
guilty of the offence of subjecting his wife to cruelty where any willful
conduct of a nature to drive the woman to commit suicide or cause danger
to life is very much highlighted in this case. Ergo, the essential element of
the section is fulfilled there by him guilty.

II. Issue 2: Whether Amar is guilty under Section 307 of The Indian Penal
Code, 1860 for attempting murder?

It is humbly submitted before the Hon'ble High Court that the accused is
guilty under Section 307 of IPC for attempting to murder as the mens rea
or the intention of offender to cause death is present and hurt is caused
too. Ergo, the accused is guilty.
 ARGUMENTS ADVANCED

Issue 1: Whether Amar is guilty of subjecting Disha to cruelty?

It is humbly submitted before this Hon'ble Court that Amar be charged for
the offence of subjecting Disha to cruelty under section 498 A of The Indian
Penal Code.
Contents of Section 498A IPC:
For the commission of an offence under Section 498-A, following necessary
ingredients are required to be satisfied: (a) The woman must be married; (b) She
must be subjected to cruelty or harassment; and
(c) Such cruelty or harassment must have been shown either by
husband of the woman or by the relative of her husband, U. Suvetha v. State,
(2009) 6 sec 757.
Husband - Who is
The expression "husband" covers a person who enters into a marital
relationship and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty in the manner provided
under Section 498-A, whatever be the legitimacy of the marriage itself for
the limited purpose of Section 498-A. The absence of a definition of
"husband" to specifically include such persons who contract marriages
ostensibly and cohabit with such woman, in the purported exercise of their
role and status as
"husband" is no ground to exclude them from the purview of 498-A IPC,
Reema Aggarwal v. Anupam, (2004) 3 sec 199.
Woman - Second wife
A Two-Judge Bench of the Supreme Court has held that even a second wife can
file a complaint under Section 498-A. In this connection, following words of
Arijit Pasayat, J. (talking in terms of Sections 498-A and 304-B IPC and Section
113-B Evidence Act, 1872) assumes importance:
"... The legislature has taken care of children born from invalid marriages.
Section 16 of the Marriage Act deals with legitimacy of

15
children of void and voidable marriages. Can it be said that the legislature
which was conscious of the social stigma attached to children of void and
voidable marriages closed its eyes to the plight of a woman who
unknowingly or unconscious of the legal consequences entered into the
marital relationship? If such restricted meaning is given, it would not further
the legislative intent ........................................................... " (para 18, Reema
Aggarwal v. Anupam, (2004) 3 sec 199).
The above said para was quoted with approval in A. Subash Babu v. State of
A.P., (2011) 7 sec 616 wherein the Supreme Court held that Section 498-A is
attracted even in the case of allegation of cruelty to
second wife.
Also the cruelty can be of various kinds- mental, physical, etc. Cruelty can
either be mental or physical. It is difficult to straitjacket the term cruelty by
means of a definition because cruelty is a relative term.
What constitutes cruelty for one person may not constitute cruelty for another
person, G.V. Siddaramesh v. State of Karnataka, (2010) 3 sec 152.

The concept of cruelty and its effect varies from individual to individual,
also depending upon the social and economic status to which such person
belongs, Gananath Pattnaik v. State of Orissa, (2002) 2 sec 619.
To prove the charges, the council put its arguments as follows:
The section 498 A of IPC states that- Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years and
shall also be liable to fine. To explain cruelty the section mention that any
willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman will be considered as cruelty.
Here in the facts, Amar's behaviour towards Disha completely supports the
definition of cruelty. For example cheating on Disha, not allowing her the
basic medical help, etc. which clearly leads to willful conduct of Amar to
drive Disha to commit suicide or cause danger to her life.

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Issue 2: Whether Amar is guilty under Section 307 of The Indian Penal Code,
1860 for attempting murder?

The act must be capable of causing death:

It is humbly submitted before this Hon'ble Court that Amar has committed
an offence u/s 307 BPC and shouldn't be charged with attempt to murder of
Disha. In order to prove the crime u/s 307, analysis of different stages of
crime is important. The first stage is the intention to commit the crime,
secondly, the preparation to commit the Crime; and thirdly, an attempt to
commit it. It is to be noted that the essential elements of Sec. 307 are as
follows:
• The act must be capable of causing death,
• The existence of the intention of the offender to cause death.
For a conviction under this section it is not necessary that the accused should
complete every stage in the actual offence, except the final action. It is enough
if in the attempt he did an act towards the commission of the offence.
The pre-requisite of an act to be capable of causing death will be dealt with in
the first part of this issue while the intention of causing death will be dealt
with in the subsequent part.
It is humbly submitted before this Hon'ble court that the act of Amar was
capable of causing death. To justify a conviction under Sec 307 IPC, it is
necessary that bodily injury capable of causing death should have been
inflicted. In the case of Jodha v. St. of Rajasthan, the court ruled that in order
for an offence to fall under the ambit of Sec 307, the injury has to be
caused on a vital part of the body.
Presence of Actus Reus: It is humbly submitted before this Hon'ble court that
the act of Amar is a crime as it has the essential element of Actus Reus.

Absence of the intention of the offender to cause death:

The essential ingredient to constitute an offence under this section is having
the intention or knowledge. The intention or knowledge can be

17
understood as explained under Section 300 of The Code15. An act, though
sufficient in the ordinary course of nature to cause death, it would not
constitute an offence under this Section if necessary intention or knowledge
is lacking.
It is humbly submitted that Amar had the intention or knowledge to commit
murder of Disha. It is evident that such an intention or mens rea was never
there, as Amar was only concerned about his own reputation. In order to
prove the presence of intention, the counsel would request the bench to
refer to the statement given by Amar himself where in he clearly admits that
he poured the kerosene himself on Disha when he knew she was holding it to
commit suicide which is an act sufficient in the ordinary course of nature to
cause death.
If the accused intended that the natural consequence of his act should The court
in determining the intention of murder observed, "as far as the part of proving
his intention the nature of the wound, type of weapon used, can be taken into
account."
Referring the same to our case, the following observations can be made:

• Nature of the wound: The wound was caused due to the act of Amar. Amar
poured kerosene on Disha, which then went on to catch fire from the burning
stove causing 75% burns to her whole body. This resulted in her being
unconscious for 7 days straight, which itself proves how severe the wound
was.

• Type of weapon used: The injury was caused by kerosene, which is a highly
inflammable substance.

Therefore, it proves the point of his intention. And thus, it is most humbly
submitted that the act of Amar is not excusable, and he can be charged under
section 307 of IPC.
 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities

cited, may th is Hon'ble Court be pleased to uphold the very considered
judgement rendered by the Session Court and dismiss the said appeal against the
Session court order vide. Disha Gupta v.
Amar Sharma.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and
Good Conscience.

All of which is most humbly and respectfully submitted

Place: Mumbai. S/d

Date: COUNSEL FOR THE DEFENCE

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