You are on page 1of 18

BEFORE THE HONBLE SUPREME COURT OF INDIA

U/A 134 OF CONSTITUTION OF INDIA


Appeal No. - _________

BRIJ MOHAN SHARMA.................................................................... Appellants

VS

VIJAY GUPTA and Ors. ....................................................................... Respondents

MEMORIAL FOR THE RESPONDENTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS...........................................
INDEX OF AUTHORITIES.............................................
STATEMENT OF JURISDICTION................................
STATEMENT OF FACTS................................................
ISSUES INVOLVED..........................................................
SUMMARY OF ARGUMENTS.......................................
ARGUMENTS ADVANCED............................................
PRAYER..............................................................................

1
LIST OF ABBREVIATIONS

Dept : Department

MEMORIAL FOR THE RESPONDENTS

2
3
4
5
7
8
9
16

Addl. : Additional
Dist : District
U/A : Under Article
Art : Article
Sec : Section
No : Number
i.e. : That is
Eg : Example
Ref : Reference
Aprx : Approximate/ Approximately
r/w : read with
u/s : under section

2
INDEX OF AUTHORITIES

Cases Cited
VIJAY PAL SINGH vs STATE OF UTTARAKHAND
S. RAJKUMAR vs STATE
STATE OF PUNJAB vs IQBAL SINGH AND Ors.
RAM SINGH vs STATE OF MAHARASHTRA
MEMORIAL FOR THE RESPONDENTS

Books Referred
1. The Constitution of India- J. N PANDEY
2. The Evidence Act- BATUK LAL
3. Concise Law Dictionary- P. RAMANATHA AIYAR
1.
2.
3.
4.
5.

Legislatures Referred
The Indian Penal Code
The Criminal Procedural Code
The Indian Evidence Act
The Dowry Prohibition Act 1961
The Juvenile Justice Act 2000

Websites accessed
1. www.manupatra.com
2. www.indlaw.com

MEMORIAL FOR THE RESPONDENTS

STATEMENT OF JURISDICTION

The Respondents have the honour of submitting the written statement before the
Hon'ble Supreme Court of India against the appeal filed under Article 134 of Indian
Constitution. This sincere submission of the Counsels is further substantiated in the
written submissions.

All of which is most respectfully submitted,

Counsels for Respondents

MEMORIAL FOR THE RESPONDENTS

STATEMENTS OF FACTS
1. The present case pertains to a criminal offence which revolves around Mr. Vikram
Gupta, aged 26 years, who belonged to a multimillionaire industrial family and fell in
love with Ms. Gracy Sharma, who belonged to a middle class family aged 24 years,
and later on was married to her, with consent of parents of both sides. Mr. Brij Mohan
Sharma (f/o Gracy Gupta) was a man of literature, reformist, social worker and an
anti-dowry activist.
2. Mr. Vijay Gupta merely stated a custom of his family by which no marriage had ever
been in their family without a gift of Rs. 30 Lakh by the girls side to which Mr. Brij
Mohan Sharma seemed non-agreeable. Shree Brij Mohan Sharma had clearly stated
that he would conduct a run of the mill marriage to which Vijay Gupta humbly agreed
to. Discerning the status of Shree Brij Mohan Sharma, an ordinary wedding was
performed on 11.06.2012. On the very next day of the wedding, i.e. on 12.06.2012, an
extravagant reception was organised by Vijay Gupta which was graced by the
presence of eminent personalities.
3. The wedding, being a distinguished one, arrested enough eyeballs and was surveyed
by the Commissioner of Income Tax. As per Vijay Gupta, the wedding reception and
all other expenditure was incurred by Gupta Power Limited- a Public Limited
Company of which Vikram Gupta was one of the directors. A clean report was also
provided to the matter pertaining to the substantial unexplained expenditure.
4. It was alleged by Gracy Gupta that the multimillionaire industrial family had been
mutilating her and were continuously making dowry demands which could not have
been fulfilled by Brij Mohan Sharma. But for the sake of his daughters happiness, he
gave a fixed deposit receipt of Rs. 10 Lakh in favour of her. However, despite of the
alleged torture, Gracy Gupta did not even attempt to bring her plight to the notice of
her reformist father, instead maintained a diary and kept the incidents under covers.
5. Meanwhile, It was alleged that Vijay Gupta payed his boxer Vijay Pal Singh a sum of
Rs 20 Lakh for murder of Gracy Sharma while she went for a morning walk in the
dense forest on the back side of Gupta Palace. Vijay Pal Singh conspired with taxicab-driver Mohan Singh and Bahadur, a 17 year old domestic servant, to murder
Gracy Gupta. They forcibly dragged her in the cab, kidnapped her, raped her and
strangulated her to death. Her body was thrown on one side of the road in the forest
area, at about 6.00 AM on 15 December 2014.
6. Soon after not finding Mrs. Gracy Gupta, after ample of waiting, the family finally
informed Shree Brij Mohan Sharma that his daughter had been missing since she went
for morning walk. Shree Brij Mohan Sharmas regular doubtfulness didnt allow him
to practically weigh the situation and he once again sensed some foul play on the part
of the Gupta family, and lodged a complaint at Police Station, Jagatpura and even
engaged a private Detective Firm, who found her dead body in the forest area, on the
side of the road, after the entire police forces search was rendered futile. He then
registered the case u/s 302, r/w Sec. 201 of IPC.
5

MEMORIAL FOR THE RESPONDENTS

7. Further investigation succeeded in detecting and arresting boxer Vijay Pal Singh on
17.12.2014, who confessed to having raped Gracy. Fostering the chain of events,
Shree Brij Mohan Sharma lodged another complaint at Police Staion, Jagatpura
alleging the Gupta family for dowry for over Rs. 50 Lakh. He further made oodles of
vile allegations against the Gupta family, and in view of the allegations made; an
investigation was taken over by Mahendra Singh Tyagi. Additionally charges
punishable under Sec. 304B r/w Sec. 34 (IPC), Sec. 302 r/w Sec. (IPC), Sec. 498A
(IPC) and section 201 (IPC) were framed against Vijay Gupta and Laxmi Gupta.
8. With honest intentions, the Gupta Public Limited and Mr. Vijay Gupta made
settlement application u/s 245C (1) of the I.T. Act, and offered the information
explaining the unexplained expenditure and income of Rs. 1 Crore and Rs. 50 Lakh
respectively.
9. Post-mortem reports of the dead body of Mrs. Gracy Gupta confirmed rape, death due
to strangulation and bodily bruises.
JUDGMENT OF THE TRIAL COURTAfter the scrutinise admission and investigation of all the evidences provided, the
Trial Court acquitted Mr. Vijay Gupta and Mrs. Laxmi Gupta of all the charges on
account of no evidence of cruelty or harassment for dowry. Also there was no spot
witness for dowry demand.
Mr. Vijay Pal Singh was held guilty for rape and murder.
Bahadur, the juvenile, was referred to the juvenile court.
10. Consequently, the state and Shree Brij Mohan Sharma filed an appeal u/s 378 0f CrPC
before the High Court.
JUDGEMENT OF THE HIGH COURT

The court held Laxmi Gupta and Mr. Vijay Gupta liable for offences u/s Section 304B e/w 34 and 498-A of IPC and ordered rigorous imprisonment of 7 years with a fine
of Rs. 50,000 for each.
Vijay Pal Singh was punished u/s 302 r/w 201 of IPC with life imprisonment.
Bahadur, the juvenile who was already referred to Juvenile Court by the Trial Court
was awarded a punishment of 5 year imprisonment.
The order was pronounced on 15.03.2015.

11. An appeal to the SC was then forwarded by the complainant and the accused. SC
issues notices regarding the decision given by the HC and has questioned why Mr.
Vijay Gupta was not levied with the charge of murder under Sec. 302 of IPC.
12. Case is in Hon'ble Supreme Court for final hearing.
6

MEMORIAL FOR THE RESPONDENTS

ISSUES INVOLVED

I.

Whether High Court was justified in proceeding against the Juvenile


respondent and hence awarding the five-year imprisonment?

II.

Whether the charges levied on the respondents are valid?

1. Whether Mr. Vijay Gupta is liable under Section 302 of Indian Penal Code?
2. Whether the present matter is a case of dowry death?

7
SUMMARY OF ARGUEMENTS

MEMORIAL FOR THE RESPONDENTS

I.

Whether High Court was justified in proceeding against the Juvenile


respondent and hence awarding the five-year imprisonment?

Through the preliminary contention over the case, the counsel from the respondents side
would like to question the validity of the judgement passed by the Hon'ble High Court,
thereby questioning the effectiveness of the punishment so awarded. In regard to the
Juvenile respondent of the present case, who by the very first decree of the trial court had
been declared a juvenile and henceforth referred to the Juvenile Justice Court.

II.

Whether the charges levied on the respondents are valid?

1. Whether the present matter is a case of dowry death?


This first sub-contention of the major contention which talks about validity of charges
against respondents, Mr. Vijay Gupta and Mrs. Laxmi Gupta, provides with the legal and
precedential arguments which prove that the present matter before the Hon'ble Supreme
Court is not a matter of Dowry Death and hence the allegations made by the adversary
counsel and the decree passed regarding those, by the Hon'ble High Court stand
unjustified.

2. Whether Mr. Vijay Gupta is liable under Section 302 of Indian Penal Code?
Vide the second contention and the first sub-argument of the same, the Counsel would
like to put before the Hon'ble bench of the Supreme Court the major reasons behind the
absence of Charge of murder from the respondent Mr. Vijay Gupta and the reason which
support and justify his non-liability of death of Mrs. Gracy Gupta.

8
ARGUMENTS ADVANCED

MEMORIAL FOR THE RESPONDENTS

I.

Whether High Court was justified in proceeding against the Juvenile


respondent and hence awarding the five-year imprisonment?

The counsel appearing on behalf of the respondents would request the Hon'ble bench to direct
its attention over the already briefed facts and the judgement of the Hon'ble trial and the High
Court.
The facts go as; Bahadur, who is one of the accused of the rape, was a juvenile of age 17
years. According to the trial court he was referred to the Juvenile Justice Court and thereby
should have been dealt and prosecuted against only by the Juvenile Justice Act. High court
proceeding as per the appeal filed by the appellants, decreed the same juvenile with an
imprisonment of five years, in a joint proceeding in which another accused who was an adult
was prosecuted.
By providing the bench with these important chronological events, the Counsel would
humbly like to recite the section 18 of Juvenile Justice Act 2000, which clearly without any
exception and ambiguity states that, notwithstanding anything contained in section 223 of
the CrPC, 1973 or in any other law for the time being in force, there shall be no joint
proceedings of a child alleged to be in conflict with law with a person who is not a
child.
Sub-section two of the same section states, if the child alleged to have committed the
offence for which under section 223 of the CrPC, 1973 or any other law for the time
being in force, such child and any person who is not a child but for the prohibition
contained in sub section (1), have been charged and tried together, the board taking
cognizance of that offence shall direct separate trials of the child alleged to be in conflict
with law, and the other person.
With no perceivable ambiguity the above stated reference of the section of the Juvenile
Justice Act, clearly marks the unfair foundation upon which the decree passed by Hon'ble
High Court stands. When the proceeding itself cannot be initiated once the case of a juvenile
had been referred to the Juvenile Justice Court, how can a decree be passed thereof? This is
an important question which the counsel would like the Hon'ble Supreme Court to direct its
attention at.

9
Even if by some overlooking of facts, the proceedings had been initiated in the Hon'ble Court
other than the Juvenile Court, the afore-mentioned section is enough to render it against the

MEMORIAL FOR THE RESPONDENTS

principles of justice and thus engulfs the decree passed thereof against the juvenile, of five
year imprisonment, under clouds of questions.

In the same law, section 16 states, notwithstanding anything to the contrary contained in
any other law for the time being in force, no child in conflict with the law shall be placed
in a special home in default of payment of fine or in default of furnishing security or
sentenced to death or life imprisonment for any offence committed by child.
There could not have been a more clearer way to immune a juvenile from mental torture
which follows in imprisonment, not only till the duration of punishment but also after the
sentence had been borne. The law is always for the society and benefit for its denizens. Also
it shall be interpreted in a manner that it justifies its own essence.
The afore-stated section without any doubt renders the decree passed by Hon'ble high court
improbable to be followed and in a pool of re-consideration. High Court itself has followed
the notion in its cases that, juvenile shall not be sentenced to imprisonment, or committed to
prison1; hence the present decree by default comes under question.
By all the above points the respondents would humbly like to request the Hon'ble Supreme
Court to reconsider the case of juvenile, and quash the orders passed by the Hon'ble High
Court, owing to non-followance of the legal procedures while dealing with the prosecution of
the juvenile.

10

1 S. Rajkumar vs State

MEMORIAL FOR THE RESPONDENTS

II.

Whether the charges levied on the respondent valid keeping in mind the legal
and factual scenario of the case?

1. Whether the present case is a case of dowry death, which had been the basis of
charges 304-B and 498- A over Mr. Vijay Gupta and Mrs. Laxmi Gupta?
2. Whether Mr. Vijay Gupta is liable under Section 302 of Indian Penal Code?

Another issue which the respondent would like to take up will not only be answering the
question of Hon'ble Supreme Court and the accusations levied by the knowledgeable
adversary counsel, but also provide a firm ground to render the respondents free from them.
Before expanding over the sub-issues, the Counsel would like to brief the Hon'ble bench with
the charges which have been ascertained over the respondent, and which have been
questioned.
As per the decree passed by the worthy trial court, our client Mr. Vijay Gupta has been given
a clean chit, that is, after the proper and in-depth investigation and inquiries with witness and
into evidences, it was declared by the court that there is no evidential proof of cruelty or
harassment for dowry by Mr. Vijay Gupta and Mrs. Laxmi Gupta and that there is no spot
witness of the dowry demand.
Also no charge or punishment regarding murder (Sec 302) was decreed by the court.
On the appeal from the prosecution side, the Hon'ble high court reversed the orders of the
trial court, henceforth sentencing the respondents under Sections 304-B and 498-A of Indian
Penal Code. Nowhere still, the court levied the charges of murder on our client, who do not
plead guilty for the rest of the charges too, but is open to be tried.
Now that the judgemental chronology and facts of the case had been well provided, the first
sub-issue of the argument surfaces as-

11

MEMORIAL FOR THE RESPONDENTS

1. Whether the present case is a case of dowry death, which had been the basis of
charges 304-B and 498- A over Mr. Vijay Gupta and Mrs. Laxmi Gupta?
The prosecution having miserably failed to establish the ingredients of the offence under Sec
304 B, of IPC the impugned order is liable to be set aside.
As already stated in the introduction of the argument, it was the trial court which with utmost
scrutiny went through all the evidences provided, and even administered all means to cover
the witnesses, found no substantial evidence which can be strong enough to convict the
respondents of a crime like that of Dowry.
Is it not an enough proof of our clients innocence in matter of dowry, that after various socalled eye witnesses were summoned and so called post mortem report was asked for, none
was efficient enough to mould a cock-an0d-bull story of dowry into a real one.
Moreover, the trial court having acquitted the appellants, the High Court should not have
interfered with the findings entered by the trial court which alone had the opportunity to first
appreciate the evidence while recording it, and any subsequent finding could have been a
result of malafied execution of the appellants deeds, which later on forced the Hon'ble High
Court to reverse the order of the previous court.
The charges which have been filed against the respondents read as; Where the death of the
woman is caused by any burns or bodily injury or occurs otherwise than under the normal
circumstances within 7 years of marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative of her husband for or in
connection with any demand of dowry, such death shall be called Dowry Death.
The above stated language is that of section 304-B, which if read if complete legal
temperament would by its own words would render our client free from its clutches. The
reason of death shall be bodily injury that too should have been soon before the death of
the married woman. In the present case the cause of death according to the post-mortem
report itself is asphyxia due to strangulation2. Also the bruise and burn marks post mortem
report talks about are not clarified on the ground of dating. This is the very instance which
proves the questionable intentions of the appellant side, that why the post-mortem report is
not providing the required information regarding the time of the injury. Is it not possible and
practical enough that the bruises on the body of late Mrs. Gracy were the after-math of the
struggle she had had with the authors of her murder.
12

2 Vijay Pal Singh vs State of Uttarakhand

MEMORIAL FOR THE RESPONDENTS

In the following case prosecution has not made any attempt to explain the ante mortem
inquiries which clearly point towards the cause of death to be strangulation, commission of
which was nowhere remotely under the hand of Mr. Vijay Gupta. Merely because the alleged
victim is a married woman suffering an unnatural death within 7 years of marriage and there
are allegations that she was subjected to cruelty on demand of dowry, does not make it a
dowry death in absence of proper investigation of the loud facts, proved by the appellants
themselves, that the cause of death was strangulation, whose author is Vijay pal Singh and not
Mr. Vijay Gupta, hence he can neither be levied with 304b and 302 of IPC.
Where the question at the issue is whether the person is guilty of dowry death, and the
evidences disclose that immediately before her death she was subjected to cruelty by such
person, the Section 113B of Evidence act provides that the court shall presume that such
person has caused the dowry death.3 The Counsel would humbly like to plead before the
bench to arrest its attention on the words IMMIDIATELY BEFORE HER DEATH which
clearly is not the scene in the present case. The only act which the post-mortem report points
at is the act of strangulation which was the immediate reason of the deceaseds death, and by
no means constitutes cruelty as intended in the law, to make the death a dowry death.
The above arguments clearly put forth the innocence of Mr. Vijay Gupta and Mrs. Laxmi
Gupta from the fact that any of their alleged acts caused the death of Mrs. Gracy Gupta and
thus constitute punishment section 304-B.
Another charge which had been alleged against Mr. Vijay Kalyan and Mrs. Laxmi Gupta is
that of 498-A whose language goes as, Whoever takes or entices away any woman who is
and whom he knows or has reason to believe to be the wife of any other man, from that man
or from any person having the care of her on behalf of that man, with intent that she may
have illicit intercourse with any person or conceives or detains with that intent any such
woman, shall be punished with imprisonment of either description for a term which may
extend to two years or with fine or with both.
Again, the scrutinized reading of the language of this section it can be inferred upon that
nowhere Mr. Vijay Gupta and Mrs. Laxmi Gupta fit in for the above charge. The section
clearly talks about the act of inducing a woman to undergo illicit intercourse by the persons
own expressive acts. The Counsel would like to put before the Hon'ble court as well as the
knowledgeable adversary counsel the very fact of the case. It was Mrs. Gracy Gupta with her
own free will who went to early morning walk and was later on crossed by the mishap which
resulted in her death and alleged rape. Nowhere, Mr. Vijay Gupta and her wife come into the
picture of all that happened to Mrs. Gracy Gupta therefore they do not fall under the very
ambit of the charged section.
13
3 State Of Punjab vs Iqbal Singh and Ors;

MEMORIAL FOR THE RESPONDENTS

The section also talks about the cruelty, which should have been constituted just before the
death of Mrs. Gracy Gupta, but neither the post-mortem report nor the facts of the case and
nor the situational evidences prove such an action by the Gupta Couple and hence they
cannot be held liable for the same.
Walking aside from the legal sections involved in the case, if the Hon'ble bench takes a hard
look at the facts, they state a meeting between the parents of Mr. Vikram Gupta and Ms.
Gracy Sharma, before their marriage. The appellants had alleged that Respondent Vijay
Gupta demanded a dowry of rupees 30 lacs or more and that after marriage accepted a dowry
of rupees 10 lacs. This, as humbly put before the Hon'ble bench, is a case of manipulation of
facts. At no time Mr. Gupta expressively or impliedly demanded dowry, rather the mentioning
of Rs 30 Lakh was just a statement of fact of their customs and not a demand. Also the
amount of 10 Lakh which is alleged to be the amount paid as dowry to the respondents was a
gift to a daughter by her father and the same is portrayed in the facts expressively which state
that Brij Mohan Sharma gave a fixed deposit of Rs. 10 Lakh in favour of his daughter.
All the de jure and de facto arguments clear the respondents Mr. Vijay Gupta and Mrs. Laxmi
Gupta from the charges of dowry, and dowry death, hence the same is humbly submitted vide
this argument before the Hon'ble apex court.

14

MEMORIAL FOR THE RESPONDENTS

2. Whether Mr. Vijay Gupta is liable under Section 302 of Indian Penal Code?
It is humbly put before the Hon'ble Supreme Court that respondent Mr. Vijay Gupta had been
alleged under Section 302 of Indian Penal Code by the adversary counsel, since the initiation
of the case in the trial court. Also it is humbly put to the knowledge of the Hon'ble bench that
nowhere in both the courts of law, that is the trial court and the High Court, the said
respondent had been charged with the punishment under section 302.
The first instance of the allegation of murder comes where Mr. Brij Mohan Sharma alleges
Mr. Vijay Gupta to have paid a cheque of Rs. 20 Lakh to the security person Mr. Vijay Pal
Singh in lieu of murder of Mrs. Gracy Gupta. This very contention is on most slippery
grounds of facts. For the benefit of the Hon'ble court the counsel would like to quote the
same, which state that the amount of 20 Lakh was paid via a cheque of the company, which is
a Public Limited Company. Moreover to strengthen the said argument it was given
expressively in the facts that Vikram Gupta was one of the directors of the company. This
implies and proves that the cheque which passed from the accounts of the company, was with
the consent of all the directors of the company and hence Mr. Vijay Gupta was not the only
person who assented the expenditure of Rs. 20 Lakh to Mr. Vijay Pal Singh, and thus cannot
be charged with a vile allegation of providing sum for murder.
Already beaten on the grounds of facts, this allegation and intention of the appellants to
charge the Respondent Mr. Vijay Gupta under the section of Murder, gets upfront retort from
the legal aspect too. Section 25 of the Indian Evidence Act 1872, states; No confession made
to a police officer, shall be proved as against the person accused of any offence. The
principle, upon which the rejection of confession made by an accused to a police officer or
while in the custody of such officer is founded, is that a confession thus made or obtained is
untrustworthy.4 No confession made to police officer shall be proved as against a person
accused of any offence.5
Another fact that gives weight to the present argument is the proceeding and the declaration
given by the trial court which has the right and the first hand opportunity to examine
evidences and witnesses and thus derive the decree. This very court had acquitted the
respondents on the ground that there was absence and inadequacy of evidences. The
inadequacy of evidences had been proved that too by the trial court which alone had the
opportunity to first appreciate the evidence while recording it.6

4 The Law of Evidence- BATUK LAL


5 Ram Singh v. State of Maharashtra, 1999 Cr LJ 3763 (Bom)

6 Vijay pal singh vs State of uttarakhand

MEMORIAL FOR THE RESPONDENTS

The above to aspects, both in matter of facts and by law defeat the contention raised by the
knowledgeable opponents that Mr. Vijay Gupta be liable for murder of Mrs. Gracy Gupta.
15

PRAYER

Wherefore,

In the light of facts presented, arguments advanced, issues referred and authorities cited;
The counsel on behalf of the Respondents humbly submits and prays that this Hon'ble Court
may be pleased to1. Declare the proceeding executed against the juvenile respondent in the High Court
invalid and hence the decree passed ineffective.
2. Declare the respondents Mr. Vijay Gupta and Mrs. Laxmi Gupta free from charges of
Dowry and Dowry death (Section 304-B and 498-A CrPC)
3. Declare the charge of murder (Section 302 or CrPC) not applicable on the respondent
Mr. Vijay Gupta.
4. Pass any such order which this Hon'ble Court deems fit and proper in the facts and
circumstances of the present case.

All of which is most respectfully submitted,


Counsel on behalf of the Respondents.

16

MEMORIAL FOR THE RESPONDENTS

MEMORIAL FOR THE RESPONDENTS

You might also like