TEAM CODE: RC-119

IN THE HON’BLE SUPREME COURT OF INDIA

APPELLATE JURISDICTION

APPEAL NO. ___/2015

IN THE MATTER OF

UNION OF INDIA................................................................................................... Appellant

VERSUS

MAJOR CHEHAR NATH VERMA................................................................... Respondent

THE 4TH R.C. CHOPRA MEMORIAL MOOT COURT COMPETITION 2016

MEMORIAL ON BEHALF OF THE APPELLANT

 INDEX

LIST OF ABBREVIATIONS……………………………………………………….…...…ii

INDEX OF AUTHORITIES………………………………………..............………….….iii

TABLE OF CASES………………………………………………………………........…..iv

STATEMENT OF JURISDICTION…………………………….......................….…...….vii

STATEMENT OF FACTS………………………………………………………...…....…viii

STATEMENT OF ISSUES…………………………………………………………………x

SUMMARY OF ARGUMENT……..……………………………………………........…..xi

ARGUMENTS ADVANCED…………………………………………………………...….1

CONTENTION 1: WHETHER THE DYING DECLARATION GIVEN BY

CAPTAIN SHIV SINGH BEDI IS ADMISSIBLE IN THE HON’BLE SUPREME
COURT OR NOT?

A. THAT THE DYING DECLARATION IS ADMISSIBLE AND CREDIBLE.

B. THAT THE DYING DECLARATION GIVEN IN FRONT OF DOCTOR IS
CREDITWORTHY AND IS ACCEPTABLE BY THE COURT.
(i) That Captain while giving Dying Declaration was in fit state of mind.
(ii) That the presence of Doctor was sufficient to validate the Dying
Declaration.
C. THAT THE DYING DECLARATION IS COMPLETE AND ON ITS BASIS
MAJOR CHEHAR NATH VERMA SHALL BE CONVICTED.

CONTENTION 2:WHETHER THE DYING DECLARATION CAN BE TAKEN UP

AS SOLE EVIDENCE AND THE ACCUSED CAN BE CONVICTED ON IT?

CONTENTION 3: THAT MAJOR CHEHAR NATH VERMA IS LIABLE FOR

MURDER OR NOT?

Prayer………………………………………………..............................………………….20

MEMORIAL ON BEHALF OF THE APPELLANT Page i

 ABBREVIATIONS

 Cri : Criminal
 AIR : All India
Reporter
 & : And
 P : Page
 ¶ : Para
 Hon‟ble : Honourable
 IPC : India Penal Code
 Ed. : Edition
 Vol. : Volume
 Co. : Company
 Art : Article
 Pvt : Private
 Ltd : Limited
 M.P : Madhya Pradesh
 A.P : Andhra Pradesh
 U.P : Uttar Pradesh
 Raj : Rajasthan
 PW : Petitioner
Witness
 SC : Supreme Court
 SCC : Supreme Court Cases
 V : Verses
 Anr : Another
 UOI : Union of India
 Spl : Special

MEMORIAL ON THE BEHALF OF APPELLANT Page ii

 INDEX OF AUTHORITIES

Statutes:
 Indian Evidence Act, 1872
 Indian Penal Code, 1860
 The Army Act, 1950
 Armed Forces Tribunal Act, 2007

Books referred:
 Sir John Woodroffe & Syed Amir Ali‟s, Law of Evidence, Lexis Nexis Butterworths,
ed.17 vol.3
 Dr. Hari Singh Gour‟s, Penal Law of India, Law Publisher‟s (India) Pvt. Ltd., ed. 11
vol.3
 Sudipto Sarkar & V R Manohar, Law of Evidence, Wadhwa & Company Nagpur,
ed.16
 Vol.1
 K.D Gaur, The Indian Penal Code, Universal Law Publishing Co., ed.2
 Field‟s Commantry on Law of Evidence, Delhi Law House, ed. 12 vol.2

Dictionary:

 P. Ramanath Aiyaris, Concise Law Dictionary, ed.5, 2014

MEMORIAL ON THE BEHALF OF APPELLANT Page iii

 TABLE OF CASES

 Abdul Sattar v. Mysore State A.I.R. 1956 SC 168

 Allarakha K. Mansuri v. State of Gujrat
 Andna v. State of Rajasthan, A.I.R. 1966 S.C. 148 at p. 151
 Anil Kumar v. State of Delhi,2014IAD(Delhi)531
 Ashabai v. State of Maharashtra, (2013) 2 SCC 224.
 Atbir v. State of Delhi , (2010) 9 SCC 1.
 B. Shashikala v. State of A.P., AIR 2004 SC1610.
 Bakhtawar v. State of Harayan, 1979 Cr.L.J. 883 at p.885(P. &.H), Virsa singh v.
State of Punajb, A.I.R. 1958 SC. 465, State of Andhra Pradesh v. Rayavarapu.
Punnayya. A.I.R. 1977 S.C. 45
 Balbir Singh & Anr. v. State of Punjab, AIR 2006 SC 3221.
 Bavisetti Kameshwara Rao @ Babai v. State of Andhra Pradesh, A.I.R 2008 SC
1854Behari v. State, A.I.R 1953 All.203, Faqira v. State A.I.R. 1955 All.321 at p.323
 Bhabanand Kakoti v. State of Meghalaya, 2008 CrLJ 194(Gau).
 Bhajju @ Karan Singhv.State of M.P.(2012)4SCC327.
 Bhoor Singh v. State, 1962 Raj.L.W. 55 at p.57
 Bhori v. State, A.I.R. 1953 All. 189 at p. 191
 Budhasat S. Rao v. State of A.P, 1994 Supp (3) SCC 639
 Chabat Ram v. State of Haryana, (1972) AIR 2574 (SC)
 Dr. Hari Singh Gour‟s,Penal Law of India,ed.11, volume 4,pg(2421)
 Ghasi Ram v. State, A.I.R 1952 Bhoapl 25 at p.29
 Ghurphekan v. State of U.P, (1972) 3 SCC 361
 Gopal Singh v. State of M.P., AIR 1972 SC 1557.
 Govindappa & Ors. v. State of Karnataka, (2010) 6 SCC 533.
 Gudar Dusadh v. State of Bihar, A.I.R 1972 SC 952
 Gurmukh Singh v. State of Haryana 2009 SCC (15) 635
 Harbans Singh v. State of Punjab, AIR 1962 SC 439.
 Jagjit Singh v. State of A.P, 1994 SCC (Cri) 176
 Joginder Singh v. State of Punjab, (1979) SC 1876: (1979) Cr.L.J. 1406 (SC);

MEMORIAL ON THE BEHALF OF APPELLANT Page iv

  Jugal Kishore Kundu & Ors. v. Narayan Chandra Kundu & Anr., AIR 1982 Cal.
342.
 Kachhwa vs State Of Rajasthan, 1986 CriLJ 306.
 Kapur Singh v. State of Pepsu, A.I.R. 1956 SC 654
 Khushal Rao v. state of Bombay AIR 1958 SC 22.
 Kundula Bala Subrahmanyam & Anr. v. State of A.P. 1993 SCC (2) 684
 Kundula Bala Subrahmanyam v. State of Andhra Pradesh, (1993) 2 SCC 684
 Kusa and Ors. V. State of Orissa, AIR 1980 SC 559.
 Lallubhai Devechand v. State of Gujrat, AIR 1972 SC 1776.
 Lalubhai Devchand Shah v. State of Gujrat, AIR 1972 SC 1776.
 Laxman v. State of Maharashtra AIR 2002 SC 2973.
 Laxmi v. Omprakash AIR 2001 SC 2383.
 M. Sarvana v. State of Karnataka, (2012) 7 SCC 636
 Maniben W/o Danabhai Tulshibai Maheria v. State of Gujrat, AIR 2007 SC 1932.
 Mannu Raj v. State of MP, [1976] 2 SCR 764.
 Mohan Lal v. State of Haryana, 2007 (9) SCC 151.
 Mohd. Hussain Ansari v. State, Govt. of NCT of Delhi1 2005 CrLJ 4437 (Del).
 Morcha v. State of Rajasthan A.I.R. 1979 S.C. 80 at p.82
 Moti Singh v. State of Uttar Pradesh, (1964) AIR 900 (SC), 1964 Cr.L.J. 727 (SC);
 Muniappanv. State of Madras, AIR 1962 SC 1252.
 Munna Raja v. State of Madhya Pradesh, (1976) 3 SCC 104.
 Muthu Kutty v. State by Inspector of Police, Tamil Nadu, 2004 (8) 128 (SC).
 Narayan Singh v. State of Harayana, AIR 2004 SC 1616.
 Panchdeo Singh v. State of Bihar, (2002) 1 SCC 577
 Paniben v. State of Gujarat, 1992 SC 1817.
 Paparambaka Rosamma v. State of A.P. AIR 1999 SC 3455.
 Parsuram Pandey v. State of Bihar, (2004) AIR 5608 (SC)
 Public Prosecutor, Andhra Pradesh v. Bollapali Veeraiaah, 1962. M.L.J. (Cr.) 86
 Rajwant Singh v. State of Kerala, A.I.R 1966 S.C. 1874 at p. 1878
 Ram Bihari Yadav v. State of Bihar & Ors, AIR 1998 SC1850.
 Ramral Majhi v. State of Madras. 1992 Cr LJ 1741(Ori).

MEMORIAL ON THE BEHALF OF APPELLANT Page v

  Ravi v. State of Tamil Nadu, 2004 (10) SCC 776 (SC).
 Rewa Ram v. State of Madhya Pradesh, (1978) Cr.L.J. 858 (SC);
 Rewaram v. State of Madhaya Pradesh, 1978 Cr.l.J. 862 at p.862(M.P.)
 Sant Gopal v. State of U.P,1995 CrLJ 312 (SC)
 Shanti v. State of Haryana, 2005 (12) SCC 287.
 Shudhakar v. State of Madhya Pradesh 2012 (7) SCC 569.
 Sirkantiah v. State of Karnataka, (1958) AIR 672 (SC)
 State of Assam v. M. Ahmed, AIR 1983 SC 274.
 State of Haryana v. Mange Ram & Ors, AIR 2003 SC 558.
 State of Kerela v. Kuttappan, 1982 Cr.L.J 1702
 State of Madhya Pradesh v. Paltan Mallah, AIR 2005 SC733.
 State of Madhya Pradesh v. Dal Singh & Ors. AIR 2013 SC 2059.
 State of Rajasthan v. Ganesh Das, 1995 Cr LJ 25(Raj)
 State of Rajasthan v. Wakteng, AIR 2007 SC 2020
 State of U.P. v. Ram Sagar Yadav & Ors., AIR 1985 SC416.
 State v. Rose, 311 A.2d 281; 1973 R.I.998
 Sukhdev Singh v. State of Delhi, (2010)ILR 2Delhi201.
 Suresh v. State of Madhya Pradesh, AIR 1987 SC 860.
 Tapinder Singh v. State of Punjab & anr., AIR 1970 SC 1566.
 Tarachand Damu Sutar v. State of Maharashtra, 1962c(2) SCR 775.
 Uka Ram v. State of Rajasthan, (2001) 5 SCC 254.
 Vinay Kumar v. State of Andhra Pradesh, AIR 1994 (SC) 830.
 Vinod Kumar v. State of U.P, 1991 Supp (1) SCC 353 at p.354

MEMORIAL ON THE BEHALF OF APPELLANT Page vi

 STATEMENT OF JURISDICTION

The Appellant has approached the hon‟ble supreme court under section 31 of the armed
forces tribunal act 2007, which reads as follows;

“31 Leave to appeal

1. An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such
leave shall not be granted unless it is certified by the Tribunal that a point of law of
general public importance is involved in the decision, or it appears to the Supreme
Court that the point is one which ought to be considered by that Court.

2. An application to the Tribunal for leave to appeal to the Supreme Court shall be made
within a period of thirty days beginning with the date of the decision of the Tribunal
and an
application to the Supreme Court for leave shall be made within a period of thirty days
beginning with the date on which the application for leave is refused by the Tribunal.

3. An appeal shall be treated as pending until any application for leave to appeal is
disposed of and if leave to appeal is granted, until the appeal is disposed of; and an
application for leave to appeal shall be treated as disposed of at the expiration of the
time within which it might have been made, but it is not made within that time.”

MEMORIAL ON THE BEHALF OF APPELLANT Page vii

 FACTS OF THE CASE

 On 3rd September, 2014 at 2:30 p.m., few army officers of 29, Squadron Regiment
gathered to play Golf at Golf club, Infantry Division, Jalandhar Cantt.
 At about 3:45 p.m. On the ground itself there was a heated exchange of words
among Major Chehar Nath Verma and Captain Shiv Singh Bedi, both officers from
same unit.
 The words turned into abuses and there was altercation between the officers.
 Two other officers of same regiment, Major Jatha Singh (PW1) and Subedar Naib
Singh (PW2) intervened and tried to solve the matter.
 Captain Shiv Singh in a fit of anger hit Major Chehar Nath on his shoulder with his
Golf stick and fell him on ground.
 Major Chehar Nath also tried to retaliate but was stopped by the other persons
present on spot and the issue was settled with the help of inter meddlers.
 On same day a party was pre-organized by the regiment members at 8:30 p.m.
 In the party both captain and the Major tried to avoid each other.
 At 10:30 p.m while leaving the party venue, Captain tried to belittle and insult Major
but the Major remained calm and composed.
 On 7 sept,2014 at 5:30 a.m. When Captain Shiv Singh went out for his daily routine
exercise, a biker wearing helmet fired two gun shots at Captain Shiv Singh, one on
his left chest and the passed through his right shoulder causing grievous hurt.
 Captain Shiv Singh tried to chase him but he bled profusely and became
unconscious.
 A passerby Nayak Singh, unit milk man (PW3) raised an alarm and Captain Shiv
was immediately taken to the Military hospital, Jallandhar Cantt.
 On 8th Sept, at around 7 p.m. Captain Shiv made a statement to the attending Dr.
Hardeep Singh (PW4) that he is in this situation because of Major Chehar Nath; he
also wanted to speak something else but fell unconscious.
 On 9th Sept, at around 2 a.m. Captain Shiv died at Military Hospital.
 On 12th Sept General Court Martial proceedings were initiated against Major Chehar
Nath under Indian Penal Code, 1860 and The Army Act, 1950.
 On account of evidences and statement given by various prosecution witness, on 25th
Feb, 2015, Major Chehar Nath was found guilty under IPC and sentenced to 10 years

MEMORIAL ON THE BEHALF OF APPELLANT Page viii

 Rigorous Imprisonment. He was also court martialled and removed from services.
 Major Chehar Nath went in appeal on 10th march, 2015 to Armed Force Tribunal.
 Futher investigation by the Tribunal revealed that the bullet shot on the Captain bore
a civilian no. And did not belong to armed forces.
 The tribunal gave benefit of doubt to the accused and on 10 Feb, 2016 all the charges
against Major Chehar Nath were removed and odder of acquittal was passed.
 A SLP went to the Supreme Court against the decision of the Tribunal. The SC on
merits entertained the Appeal.

MEMORIAL ON THE BEHALF OF APPELLANT Page ix

 ISSUES RAISED

I. Whether the Dying Declaration given by Captain Shiv Singh Bedi is

admissible in the Hono’able Supreme Court?

II. Whether the Dying Declaration can be the sole evidence for convicting the
accused?

III. Whether Major Chehar Nath Verma is liable for Murder or not?

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 SUMMARY OF ARGUMENTS

I. THAT THE STATEMENT OF THE DECEASED IS ADMISSIBLE AS A DYING

DECLARATION.

A Dying Declaration made by a person is admissible under Section 32(1) of the Indian
Evidence Act, 1872. This may be oral and does not necessarily have to be made to a
Magistrate. In the pertinent case, the dying declaration fulfils the conditions of sincerity and
authenticityand hence must be admissible. A dying declaration made by a person is
admissible under Section 32(1) of the Indian Evidence Act, 1872.

II. Whether the Dying Declaration can be the sole evidence for convicting the accused?

A Dying Declaration can form sole evidence if the Court finds it to be true and voluntary
under Section 32(1) of the Indian Evidence Act, 1872. If the Declaration is accepted then it
needs no further corroboration to convict the accused. Declarationwhich is not the result of
tutoring, prompting or imagination is admissible in the Court.

III. WHETHER MAJOR CHEHAR NATH VERMA IS LIABLE FOR MURDER OR

NOT?

Under Indian criminal law, murder is defined under Section 300 of the Indian Penal Code
1860 and punishable under Section 302 of the same. In the pertinent case, the actions of the
accused, along with circumstantial evidence and the dying declaration show that they had
both the intention to cause death as well as the intention to cause bodily injury sufficient in
the ordinary course of nature to result in death.

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 ARGUMENTS ADVANCED

CONTENTION 1:WHETHER THE DYING DECLARATION GIVEN BY CAPTAIN

SHIV SINGH BEDI IS ADMISSIBLE IN THE HON’BLE SUPREME COURT OR
NOT?

A. THAT THE DYING DECLARATION IS ADMISSIBLE AND CREDIBLE.

B. THAT THE DYING DECLARATION GIVEN IN FRONT OF DOCTOR IS

CREDITWORTHY AND IS ACCEPTABLE BY THE COURT.
(iii) That Captain while giving Dying Declaration was in fit state of mind.
(iv) That the presence of Doctor was sufficient to validate the Dying
Declaration.

C. THAT THE DYING DECLARATION IS COMPLETE AND ON ITS BASIS

MAJOR CHEHAR NATH VERMA SHALL BE CONVICTED.

A. That the Dying Declaration is admissible and credible.

It is humbly submitted before the Hon‟ble Supreme Court that the Dying Declaration should
be admitted. In the present case Captain Shiv Singh Bedi(deceased) had given the declaration
on 8th Sept. 2014, at around 7 p.m. to the attending Dr. Hardeep Singh (PW4) that he is in this
situation because of Major Chehar Nath(accused).2 This evidence is in itself sufficient.

The paramount consideration of the Court should be to avoid miscarriage of Justice. A

Miscarriage of justice which may arise from the acquittal of guilty is no less than from
conviction of innocent.3

This is based on the maxim „nemo mariturus presumuntur mentri‟ i.e. a man will not meet his
maker with lie on his mouth. The Indian law recognizes the fact that „a dying man seldom

2
Factsheet ¶ 4.
3
Alla Rakha K.Mansurie v. State of Gujrat, Criminal Appeal No. 1285 of 1998.

MEMORIAL ON BEHALF OF THE APPELLANT Page 1

lies‟ or „truth sits upon the lips of a dying man.‟4 A Dying Declaration is given special
weightage as per Section 32 of the Indian Evidence Act, 1872 as truth sits on the lips of a
dying man.5

A “Dying Declaration” is a statement, written or oral, of relevant facts made by a person who
is dead.6 The Court attaches intrinsic value of truthfulness to it. The statement, if voluntarily
made and established not to be an attempt to cover up the truth, can be made the basis of
conviction.7
A Dying Declaration made by a person on the verge of his death has a special sanctity as that
solemn moment a person is most unlikely to make any untrue statement.8

In the case of Ram Bihari Yadav v. State of Bihar & Ors,It was held that Dying Declaration
is substantive evidence and like any other substantive evidence.9 Hence the declaration given
by Captain is admissible in the Court.

It is important for the Court to note that this rule applies to written or verbal statements of
relevant facts made by a person-

 Who is dead; and are relevant

 When it relates to the cause of death or as to any circumstances of the transaction
which resulted in his death in cases in which the cause of the persons death comes
into question.10

There should be a direct nexus between the circumstances and the Dying Declaration. It is
admissible either such statement should relate:

 To the cause of his death, or

 It should relate to any of the transaction or circumstances which resulted in his
death.11

4
Kachhwa vs State Of Rajasthan, 1986 CriLJ 306.
Uka Ram v. State of Rajasthan, (2001) 5 SCC 254.
5
Sukhdev Singh v. State of Delhi,(2010)ILR 2Delhi201.
6
Sant Gopal v. State of U.P, 1995 CrLJ 312 (SC).
7
M. Sarvana v. State of Karnataka, (2012) 7 SCC 636.
8
Narayan Singh v. State of Harayana, AIR 2004 SC 1616.
9
AIR 1998 SC1850.
10
Sir John Woodroffe & Syed Amir Ali‟s, Law of Evidence, 1721 Vol II (17 th ed, 2001).
11
S.K. Malik‟s An Exhaustive Commentory on The Indian Evidence Act, 1872, 662, 663 (2009).
State of Madhya Pradesh v. Paltan Mallah, AIR 2005 SC733.
M. MONIR, THE LAW OF EVIDENCE706 (16thedn. 2013).

MEMORIAL ON BEHALF OF THE APPELLANT Page 2

In the present case both the conditions are fulfilled it was made by a person who is now dead
and was clearly relating to the cause of his death or circumstances that resulted in her death.
Therefore, it is admissible as a Dying Declaration.
Dying Declaration has a great sanctity in the Court because of two reasons; Firstly, the victim
is generally the only principal eye-witness to the crime; secondly, sense of impending death
creates a sanction which is equal to obligation of an oath.12 There is no hard and fast rule to
judge the authenticity of a Dying Declaration. The same must be judged in accordance with
the circumstances of each case depending upon many factors which would vary with each
case.13 It has also been recognized and established by the Supreme Court that there is no
format as such of a Dying Declaration.14

In the present case the deceased has given his declaration on 8th September, 2014 and has
died on 9th September and he did not gain conscious after giving the declaration, which
clearly shows that it was his Dying Declaration which is admissible.15 This clearly shows that
the declaration given by the deceased is concrete proof to show that the accused is completely
liable and should be held liable for the same. Clause (1) Section 32 of the evidence Act
makes the statement of person who has died relevant only when that statement has been made
by a person as to the cause of his death or as to any of the circumstances of the transaction
which resulted in his death.16 Even in the present case the declaration is made regarding to
the cause of death.

Even the Supreme Court in the case of Laxmi v. Omprakash17held that:The law is well
settled that the Dying Declaration is admissible in evidence. The adminissibility is founded
on principle of necessity. A Dying Declaration, if found reliable, can form the basis of
conviction. Even in the present case the Dying Declaration should be admissible as it is
evidence which clearly proves that accused has murdered Captain Shiv Singh Bedi. Hence,
this is a settled rule that a valid Dying Declaration should be admitted in the Court of law.

12
Ratanlal and Dhirajlal, The Law of Evidence, P.246, 247 (25 th ed., 2013); Muthu Kutty v. State by Inspector of
Police, Tamil Nadu, 2004 (8) 128 (SC).
13
Dr. HARI SINGH GOUR, PENAL LAW OF INDIA3086 (11thEdn., 2011)
14
Panchdeo Singh v. State of Bihar, (2002) 1 SCC 577
15
Factsheet, ¶ 4.
16
Moti Singh & Anr. v. State of Uttar Pradesh, AIR 1964 SC 900.
17
AIR 2001 SC 2383.

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The statement made by a deceased person as to the cause of his death, or as to any of the
circumstances of the transaction which results in his death, is admissible in evidence.18
Whether made under the expectations of death or not is of no value to the Court.

In the case of Khushal Rao v. State of Bombay, it was held that under Section 32, when a
statement is made by a person, as to the cause of death or as to any of the circumstances
which result in his death, in cases in which the cause of that person's death comes into
question, such a statement, oral or in writing made by the deceased to the witness is a
relevant fact and is admissible in evidence.19

There is no hard and fast rule rule when a Dying Declaration should be accepted, but if the
Court after taking everything into consideration, is convinced that the statement is true, it is
its duty to convict, notwithstanding that there is no corroboration in the true sense. The Court
must, of course, be fully convinced of the truth of the statement, and naturally, it could not be
fully convinced if there were any thing in the surrounding circumstances to raise suspicion as
to its credibility.20

The Apex Court21 took a view that under Indian law, for Dying Declaration to be admissible
in evidence, it is not necessary that the maker of the statement at the time of making the
statement should be under shadow of death and should entertain the believe that his death
was imminent. The expectation of imminent death is not the requirement of law.22

Hence it is humbly submitted before this Hon‟ble Court that Dying Declaration given by
the deceased is admissible and creditworthy.

18
Ratanlal and Dhirajlal, The Law of Evidence, P.273, 274 (25 th ed., 2013).
19
AIR 1958 SC 22.
20
Lallubhai Devechand v. State of Gujrat, AIR 1972 SC 1776.
Ramral Majhi v. State of Madras. 1992 Cr LJ 1741(Ori).
21
State of Haryana v. Mange Ram & Ors, AIR 2003 SC 558.
22
Ibid.

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 B. That the Dying Declaration given in front of doctor is creditworthy and
is admissible:

In the instant case the Declaration is given to Dr. Hardeep Singh who was the attending
Doctor to the deceased.23 This in itself is a sufficient proof as the doctor has no personal
interest in the matter and will give the statement without any malafide intension. One the
main essential for the valid declaration is that the declaration should be given by a person in
a fit state of mind, then only that can be taken up as an reliable evidence. The statement
given here by the deceased to Doctor is an oral statement. An oral Dying Declaration means
a statement which was not recorded and is reproduced by the witness out of memory. It is
advisable to get the evidence of declaring certified from a doctor.24 Hence the Declaration
should be accepted.

i)That Captain while giving Dying Declaration was in a fit state of mind?

It is humbly submitted before this Hon‟ble Court that the Dying Declaration is given in front
of the attending doctor. He was best to judge the mental state of mind of the deceased which
makes it mandatory to accept that the deceased was in fit state of mind. In appropriate cases,
the satisfaction of the person recording the statement regarding the state of mind of the
deceased would also be sufficient to hold that the deceased was in a position to make a
statement. It is settled law that if the prosecution solely depends on the Dying Declaration,
the normal rule is that the Courts must exercise due care and caution to ensure genuineness of
the Dying Declaration. When the Court is satisfied that the Dying Declaration is voluntary,
not trained by tutoring or animosity, and is not a product of the imagination of the declarant,
in that event, there is no impediment in conviction of the accused on basis of such Dying
Declaration.25 The Court should be satisfied that the deceased was in a fit state of mind and
capable of making a statement.

Even in the case of Laxman v. State of Maharastra The Apex Court held that Dying
Declaration is acceptable, if the persons recording Dying Declaration is satisfied that the

23
Factsheet, ¶ 4.
24
Ratanlal and Dhirajlal, The Law of Evidence, 247 (25 th ed, 2015).
25
Supra 10; Ashabai v. State of Maharashtra, (2013) 2 SCC 224.

MEMORIAL ON BEHALF OF THE APPELLANT Page 5

declarant is in a fit mental condition to make the Dying Declaration.26

Where the condition of the victim declarant was serious, Dying Declaration recorded by the
duty doctor was proper and under the circumstances fitness certificate incharge was not
necessary.27 Hence even in the present case the declaration was given in front of the duty
doctor. And it should be accepted by the Court and the Court should convict Major on such
basis.

ii)That the presence of Doctor was sufficient to validate the Dying Declaration?

It is humbly submitted before the Hon‟ble Court that the declaration given to a doctor is
sufficient evidence. As the Dying Declaration is given to the Doctor who is a third party, he
has no interest in the imminent matter; hence his words could be trusted. The presence of
attending Doctor is a sufficient proof. The admission of Dying Declaration may be proved by
or on behalf of the person making it, when it is of such a nature that the person making it
were dead, it would be relevant as between third persons under section 32.28 It is not
important that only a treating Doctor must certify fitness for making statement. But the doctor
should not be interested in the outcome of the case29 Dying Declaration recorded by the
doctor himself after giving fitness certificate is completely valid and should be admitted in as
Court of law.30 As is the present scenario the attending doctor took the Dying Declaration and
he has no interest in the outcome of the case.

Even in the case of Shudhakar v. State of Madhya Pradesh31:The Apex Court held that it
is not necessary that the Dying Declaration must be recorded by a Magistrate or a police
officer or a doctor. Hence the declaration given to the doctor is a definite proof.
Similar judgement was held in the case of Mohd. Hussain Ansari v. State, Govt. of NCT
of Delhi32
That the doctor who recorded the Dying Declaration of the deceased was disinterested
witness and is a responsible officer.33 This clearly shows that there is no prompting rather
the declaration was given unaccompanied which justifies the truthfulness of the statement.

26
AIR 2002 SC 2973;Uka Ram v. State of Rajasthan, (2001) 5 SCC 254;Kundula Bala Subrahmanyam v. State
of Andhra Pradesh, (1993) 2 SCC 684.
27
State of Rajasthan v. Ganesh Das, 1995 Cr LJ 25(Raj).
28
Sir John Woodroffe & Syed Amir Ali‟s, Law of Evidence, Vol II, 1727 (17 th ed, 2001).
29
Shanti v. State of Haryana, 2005 (12) SCC 287.
30
S.K. Malik‟s An Exhaustive Commentary on The Indian Evidence Act, 1872, 610 (2009).
31
2012 (7) SCC 569.
32
2005 CrLJ 4437 (Del).
33
Ibid.

MEMORIAL ON BEHALF OF THE APPELLANT Page 6

If the doctor states that the deceased was in fit state of health to make a declaration then the
Courts have placed reliance upon such declaration and further elaborate by saying that
there is no reason to disbelieve the evidence of the Doctor.34
The Dying Declaration recorded by a doctor could not be discarded as the doctor is
disinterested and respectable doctor. 35 The Dying Declaration made in front of the doctor
admitted by the Court. The Dying Declaration provided by the doctor has been admitted
for sole basis of conviction. The declaration given by the doctor is a reliable source.36 The
law does not provide that any Dying Declaration should be made in any prescribed manner
or in the form of questions and answers. Only because a Dying Declaration was not
recorded by a Magistrate, the same by itself, may not be a ground to disbelieve the entire
prosecution case.37 "The law on the issue can be summaried to the effect that law does not
provide who can record a Dying Declaration, nor is there any prescribed form, format, or
procedure for the same.38
Hence it is pertinent to note that the Dying Declaration is given by deceased by his own
free will to the doctor. There are two reasons to believe such declaration; Firstly, deceased
was not forced to give any statement it was by his own free will. Secondly, it was given to
Doctor who has no interest in the outcome of the case and could be solely trusted. Hence
the Court should admit such declaration on merits and should convict the accused.

34
Suresh v. State of Madhya Pradesh, AIR 1987 SC 860.
35
Vinay Kumar v. State of Andhra Pradesh, AIR 1994 (SC) 830.
36
Jugal Kishore Kundu & Ors. v. Narayan Chandra Kundu & Anr., AIR 1982 Cal. 342.
37
Balbir Singh & Anr. v. State of Punjab, AIR 2006 SC 3221.
38
State of Madhya Pradesh v. Dal Singh & Ors. AIR 2013 SC 2059; Govindappa & Ors. v. State of Karnataka,
(2010) 6 SCC 533.

MEMORIAL ON BEHALF OF THE APPELLANT Page 7

 C. That the Dying Declaration is complete and on its basis Major Chehar
Nath Verma should be convicted:

It is humbly submitted that the Dying Declaration is complete as it reveals the cause of death
of the deceased. Even if a declaration is incomplete but it reveals the cause of death of person
then even though he wants to speak something else is not important, that is sufficient
evidence and has to be taken into account.39 Though deceased was not able to complete his
declaration but he has stated the cause of his death which is sufficient40 All those statements
of a person which concerns the cause of his death should be admitted.41

In view of the decision of this Court in Khushal Rao v. State of Bombay42,In so far as the
Dying Declaration, goes, it is a complete statement, and makes a very clear accusation
against the respondent. If Dying Declaration is reliable, then it needs no further
corroboration.

The Dying Declaration recorded in expectation of death, need not be discarded only because
death took place after a few days. What is necessary for the said purpose inter alia is that the
statement has been made by a person who cannot be found or who is dead.43

In Abdul Sattar v. MysoreState44, it has been observed that even if the dying declaration is
incomplete, the statement of the dying man in so far as it went to implicate the accused would
be relevant.

It is pertinent to note that in the present case though the deceased fell unconscious while
giving the Dying Declaration but he stated the cause of his death which is a sufficient proof
to convict the accused.

Hence, it is submitted before the Hon‟ble Court that the accused is responsible for the death
of the deceased and he should be held liable for the same.

39
Muniappanv. State of Madras,AIR 1962 SC 1252.
40
Factsheet, ¶ 4.
41
B. Shashikala v. State of A.P., AIR 2004 SC1610.
42
AIR 1958 SC 22.
43
Maniben W/o Danabhai Tulshibai Maheria v. State of Gujrat, AIR 2007 SC 1932.
44
A.I.R. 1956 SC 168

MEMORIAL ON BEHALF OF THE APPELLANT Page 8

Contention 2 :Whether the Dying Declaration can be taken up as sole
evidence and the accused can be convicted on it?

It is humbly submitted before the Hon‟ble Court that the Dying Declaration given by Captain
Shiv Singh Bedi on 8th September, 2014 to Dr Hardeep Singh (PW 4) is reliable evidence. It
should be completely accepted and the accused should be convicted for the same. It proves
the case beyond reasonable doubt. Beyond Reasonable doubt is synonymous with the term
“moral certainty.”45 The Dying Declaration is based on the maxim „nemo mariturus
presumuntur mentri‟. And the Supreme Court in its various judgments has decided that Dying
Declaration if is the only proof but is conclusive can be taken up as any other evidence and
can be the sole basis of conviction of the accused.46

In the case of Bhajju @ Karan Singhv.State of M.P.47It was held, if Dying Declaration had
been recorded in accordance with law, was reliable and gave a cogent and possible
explanation of occurrence of events, then Dying Declaration could be relied upon by Court
and could convict the accused on such basis. The Dying Declaration can be corroborated with
circumstance evidence.

The Principal on which Dying Declaration depends on:

(i) There is neither rule of law nor of prudence that Dying Declaration cannot be acted
upon without corroboration.48
(ii) If the Court is satisfied that the Dying Declaration is true and voluntary it can base
conviction on it, without corroboration.49
(iii) The Court has to scrutinize the Dying Declaration carefully and must ensure that the
declarations not the result of tutoring, prompting or imagination. The deceased had
opportunity to observe and identify the assailants and was in a fit state to make the
declaration.
(iv)Equally, merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth.50
Dying Declaration was truthful and voluntarily made then same could be sole basis of
conviction of Accused even in absence of any corroboration.51 If the Court is satisfied that

45
P Ramanatha Aiyar‟s, Concise Law Dictionary, (5th ed, 2014).
46
Lalubhai Devchand Shah v. State of Gujrat, AIR 1972 SC 1776.
47
(2012)4SCC327.
48
Mannu Raj v. State of MP, [1976] 2 SCR 764.
49
Stateof U.P. V. Ram Sagar Yadav, AIR 1985 SC 416. See also Atbir v. State of Delhi , (2010) 9 SCC 1.
50
Paniben v. State of Gujarat, 1992 SC 1817.

MEMORIAL ON BEHALF OF THE APPELLANT Page 9

the Dying Declaration is true and free from any effort to prompt the deceased to make a
statement and is coherent and consistent, there is no legal impediment in founding the
conviction on such a Dying Declaration even if there is no corroboration.52
Even in the pertinent case all the essentials have been fulfilled as it was an voluntary
statement, it was not prompted or tortured and it was given in fit state of mind which
makes the Dying Declaration more reliable.

Even in the case of Paparambaka Rosamma v. State of A.P.53The Supreme Court held that
conviction can be solely based on Dying Declaration but there is an obligation on the part
of the Court to consider with extreme care and caution both the Dying Declaration and also
the evidence of the witnesses supporting it54

If the statement of a dying person passes the test of careful scrutiny applied by the Courts,
it becomes a most reliable piece of evidence which does not require any corroboration.55
The accusation in a Dying Declaration comes from the victim himself and it is worthy of
acceptance then in view of its source can be safely relied on.56

Though conviction can be raised solely on the Dying Declaration without any corroboration
the same should not be suffering from any infirmity.57 No absolute rule of law that the Dying
Declaration cannot form the sole basis of conviction unless it is corroborated.58 If the Court is
satisfied that Dying Declaration is true and voluntary, it can base sole conviction on it
without requirement of any corroboration.59 It is an accepted rule by the apex Court in a
number of cases that the Dying Declaration can be accepted without any other evidence.
There is no need for corroboration if the Court feels that the statement is true.60 If no doubt is

51
Anil Kumar v. State of Delhi, 2014IAD(Delhi)53.
52
Tarachand Damu Sutar v. State of Maharashtra, 1962c(2) SCR 775; Munna Raja v. State of Madhya
Pradesh, (1976) 3 SCC 104.
53
AIR 1999 SC 3455.
54
Ibid; State of Assam v. M. Ahmed, AIR 1983 SC 274.
55
Kusa and Ors. V. State of Orissa, AIR 1980 SC 559.
56
Tapinder Singh v. State of Punjab & Anr., AIR 1970 SC 1566.
57
State of Rajasthan v. Wakteng, AIR 2007 SC 2020
58
Bhabanand Kakoti v. State of Meghalaya, 2008 CrLJ 194(Gau).
59
Mohan Lal v. State of Haryana, 2007 (9) SCC 151.
60
Harbans Singh v. State of Punjab, AIR 1962 SC 439; Gopal Singh v. State of M.P., AIR 1972 SC 1557.

MEMORIAL ON BEHALF OF THE APPELLANT Page 10

there for the Dying Declaration is true it has to be accepted. 61 The truth of Dying Declaration
cannot be doubted.62

In State of Rajasthan v. Wakteng63, the Apex Court has held, “If the truthfulness of the
Dying Declaration cannot be doubted, it being substantive evidence, the same alone can form
the basis of conviction of the accused and the same does not require any corroboration
whatsoever, in law. Besides should the Dying Declaration be excluded it will result in
miscarriage of justice because of the statement would leave the Court without a scrap of
evidence.”
It is humbly submitted before the Hon‟ble Court that the declaration given by deceased is true
and voluntary and is admissible and the accused is responsible for the death of Captain.

61
State of U.P. v. Ram Sagar Yadav & Ors., AIR 1985 SC416.
62
Ravi v. State of Tamil Nadu, 2004 (10) SCC 776 (SC).
63
(2007) AIR 2020 (SC)

MEMORIAL ON BEHALF OF THE APPELLANT Page 11

Contention III . That Major Chehar Nath Verma is liable for Murder or
not?

It is humbly submitted before this hon‟ble court that the accused is liable for murder and all
the charges against the accused are true. Section 30064of IPC: according to this there should
be intention present of the murderer while committing the murder. Culpable homicide is
murder if the act by which death is caused is done with the intention of causing death. The
mental element in culpable homicide i.e. the mental attitude of the agent towards the
consequences of his conduct is one of intention or knowledge or both.65

In the instant case, the murder of the deceased falls squarely under clause (1) and (3) of
Section 300. In light of the above mentioned facts, the prosecution will further elaborate on
the issues.
1) TEST OF DETERMINING: INTENTION TO CAUSE DEATH–
The very first test to decide whether a particular act or omission would be covered by the
definition of culpable homicide, is to verify whether the act done by the accused as „caused‟
the death of another person. The relevant consideration for such verification is to see whether
the death is caused as a direct result of the act committed by the accused.66

The Legal Equation:67

Concurrence = Mens rea + Actus reus

(1.1) Intention To Cause Death –

Clause 1 of Section 300 of the Indian Penal Code 1860 says that culpable homicide is
murder if the act by which death is caused is done with the intention of causing death.

An intention to kill a person brings the matter so clearly within the general principal of mens
rea as to cause no difficulty.68 Austin defined intention as “the aim of the act, of which the
motive is the spring.”69 It is most humbly submitted before this Hon‟ble Court that the

64
Section 300 of IPC:Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing death.
65
Anada v. State, (1966) AIR 148 (SC).
66
Moti Singh v. State of Uttar Pradesh, (1964) AIR 900 (SC), 1964 Cr.L.J. 727 (SC); Joginder Singh v. State of
Punjab, (1979) SC 1876: (1979) Cr.L.J. 1406 (SC); Rewa Ram v. State of Madhya Pradesh, (1978) Cr.L.J. 858.
(SC); Chabat Ram v. State of Haryana, (1972) AIR 2574 (SC).
67
State v. Rose, 311 A.2d 281; 1973 R.I.998.
68
Dr. Hari Singh Gour‟s,Penal Law of India,ed.11, volume 4,pg(2421).
69
JOHN AUSTIN, LECTURES ON JURISPRUDENCE 165 (Students Edn. 1920).

MEMORIAL ON BEHALF OF THE APPELLANT Page 12

accused have committed murder punishable under Section 302 of Indian Penal Code 1860.
Once the intention to kill is proved the offence is murder.

Intention is one of the essential elements of the offence it is always necessary that there
should be a definite finding as to whether the necessary guilty intention is or is not present.70

In the case of Gurmukh Singh V. State of Haryana,71the Hon‟ble Court quoted that
following tests could determine the intention of a person: Motive or previous enmity, whether
incident took place in spur of the movement, the gravity, dimension and nature of injury,
adverse history of the accused, the conduct and behavior of accused towards the deceased,
nature of injuries,72circumstance in which incident took place.
Avarice, love, hatred, jealous and revenge are the mainsprings of human action.73

In the present case there is a clear intention to take revenge as the relations between the
accused and the deceased were stained with the incident that took place at the golf club.

The accused did not react in any situation that took place between the deceased and the
accused. But he wanted to take the revenge for all that happened, he even tried to retaliate 74
when they both had a fight on the golf club, but was stopped by the other persons present on
the sport.

Where the injuries individually and collectively are sufficient in the ordinary course of nature
to cause death it was held that the accused intended to kill the deceased. 75 It is well settled
that if it is proved that the accused had the intention to inflict injuries actually suffered by the
victim and such injuries are found to be sufficient in the ordinary course of to cause death, the
ingredients of cause third of sec.300 of the IPC are fulfilled and the accused must be held
guilty of murder punishable under sec.302 of IPC.

Intention is only one of the essential requirements of murder intention can be inferred from
act, as every man is presumed to intend the natural consequences of his acts.76 Motive aspect
assumes considerable importance on circumstantial evidence.77

70
Sirkantiah v. State of Karnataka, (1958) AIR 672 (SC)
71
2009 SCC (15) 635
72
Parsuram Pandey v. State of Bihar, (2004) AIR 5608 (SC)
73
Dr. Hari Singh Gour‟s,Penal Law of India,ed.11, volume 4,pg(2421)
74
Factsheet, ¶ 1.
75
Rewaram v. State of Madhaya Pradesh, 1978 Cr.l.J. 862 at p.862(M.P.)
76
State of Kerela v. Kuttappan, 1982 Cr.L.J 1702.
77
Budha Satya S. Rao v. State of A.P., 1994 Supp (3) SCC 639.

MEMORIAL ON BEHALF OF THE APPELLANT Page 13

In this case the murder of the deceased is the clear consequence of the incident that took
place between the deceased and the deceased. There was not only intention present but also
there was the motive78 to take revenge of the humiliation. All acts of killing done with the
intention to kill or to inflict bodily injure likely to cause or with the knowledge that death
must be the most probable result are prima facie murder.79

Injury on the vital part of the body:

It is well known that intention is what intention does. If with a four pronged instrument a
blow is inflicted on a vital part of the body and the blow is such as to cause two deep injuries
on the body and according to the doctor each one of those injuries was sufficient in the
ordinary course of nature to cause death of the man, then surely the intention of causing such
bodily injury as the offender knew was likely to cause death or was sufficient in the ordinary
course or nature to cause death would be attributed to the accused.80

In this case the deceased was shot by the gun and that also at the vital part of the body that is
the chest which encloses the heart.

Injury at such vital parts directly results in the death of the person. This is what happened in
the following case. So the shot at the vital part of the body clearly shows the intention of the
respondent that he wanted to kill the captain.

A number of injuries on the vital part show that the appellant acted in a cruel manner.81
Intention can of course, be rarely proved by direct evidence. Such evidence may, however, be
sometimes available.

Circumstances before the act:

Circumstances are sufficient to establish the guilt of the accused.82 A previous intimidation
or threat may unmistakably connect the deed with the threat, which would be the best
evidence of intention.83The quarrels that took place before the murder and the all the previous
situation clearly shows that the major‟s motive was to take revenge of the humiliation as he

78
Sec.8 of Indian Evidence act 1872- any fact is relevant which shows or constitutes a motive or preparation for
any fact in issue or relevant fact.
79
Supra, note 70.
80
Bhoor Singh v. State, 1962 Raj.L.W. 55 at p.57.
81
Jagjit Singh v. state of H.P, 1994 SCC(cri) 176.
82
Ibid.
83
One by, 2 Ser. 766.

MEMORIAL ON BEHALF OF THE APPELLANT Page 14

was the senior officer and was insulted by the junior officer and the major did this, by
intentionally causing injury at the vital part of the captain‟s body which resulted in his death.

It was held by the Supreme Court that when injury is caused on vital part of the body with
savage force resulting in instantaneous death, injury is sufficient to cause death within clause
(iii) to section 300 irrespective of solitary injury.84

Other essentials related to circumstances:

The true rule is that where the injury caused is not the result of accident or of negligence, a
strong presumption arises that the injury caused was intended to be caused, though this
presumption may be rebutted by other circumstances, the motive of the accused, the nature of
the instrument of attack, the time and the place of attack, the position and condition of the
deceased, the number of injuries, the force used etc.85

But in this case these circumstances cannot be rebutted. The place at which the incident took
place was the Cantt area and no civilian is allowed to go inside the cant without prior
permission. So it is clear that someone present inside the cant area only killed the captain.
Moreover, the time at which the deceased was killed was 5.a.m. Only the person who is
known to the deceased and who is in his daily contact will know his daily schedule, at what
time he goes for his walk. In this case the major and the captain were in direct contact with
each other as they belonged to the same regiment86and the accused being the senior officer
knew the daily schedule of his junior officer that the deceased. All these circumstantial
evidence show that it was a well planned murder.

Preparation time:

The accused took four days time to make all the arrangements and then he executed his plan.
He was very well prepared. In deciding the question of intention, the nature of the weapon
used, the part of the body on which the blow is given, the force of the blow and its number
are some of the factors which assume importance.87

84
Bavisetti Kameshwara Rao @ Babai v. State of Andhra Pradesh, A.I.R 2008 SC 1854.
85
Behari v. State, A.I.R 1953 All.203, Faqira v. State A.I.R. 1955 All.321 at p.323 (D.B).
86
Factsheet, ¶ 3.
87
Ghasi Ram v. State, A.I.R 1952 Bhoapl 25 at P.29.

MEMORIAL ON BEHALF OF THE APPELLANT Page 15

In the case of KapurSingh v. State of Pepsu.8818 injuries were given on the arms and legs of
the deceased with a gandasa. The obvious motive was to take revenge because the deceased‟s
son, Bachan Singh, had caused a serious leg injury which resulted in the amputation of the
leg of Pritam Singh, the son of the appellant.

The similar feeling of revenge was present in this present case, the gun was shot twice, once
on his left chest and second time at his shoulder. So this shows his intention to take revenge
of what was happened at the golf club. He was hit on his shoulder and the same he did with
the deceased, so he also shot him first at the shoulder and then he intended to kill the
deceased.

Act done with the knowledge:

A person who causes severe injuries which are of such a nature as would cause death in the
ordinary course of nature he must be held to have inflicted them intentionally.89

The second clause deals with acts done with the intention of causing such bodily injury as the
offender knows to be likely to cause death of the person to whom the harm is caused. 90The
mental element is thus made of two elements:

A) causing an intentional injury

B) Which injury the offender has foresight to cause death.91
In this case there was a clear intention to cause an injury and the offender had the knowledge
that if he will shoot at such a vital part of the body, it will result in the death of the person.
The gun was fired twice which clearly indicates that the Major did not want to injure the
Captain instead he wanted to kill him and take his vengeance.

Kind of weapon used:

However the weapon used, the degree of force released in wielding it, the antecedent relation
of the parties, the manner in which the attack was made that is to say sudden or premeditated,
whether the injury was inflicted during the struggle or grappling, the number of injuries

88
Kapur Singh v. State of Pepsu, A.I.R. 1956 SC 654.
89
Bhori v. State, A.I.R. 1953 All. 189 at P. 191.
90
Sec.300(2) 0f I.P.C .
91
Rajwant Singh v. State of Kerala, A.I.R 1966 S.C. 1874 at P. 1878.

MEMORIAL ON BEHALF OF THE APPELLANT Page 16

inflicted and their nature and the part of the body where the injury was inflicted are some of
the relevant factors.92

In Morcha v. State of Rajasthan93the accused went armed with a dagger to the village of his
in-laws to fetch his wife, Mst.Cajri and despite the willingness expressed by Mst.Cajri to
accompany him next morning he inflicted without the slightest provocation injuries on her
person. The injury no. 2 which had injured the liver and caused the perforation of the large
colon was sufficient to cause her death in the ordinary course of nature. The whole affair was
pre-planned and premeditated. It was held that the case squarely fell within the purview of
cl.(3) of sec.300 of IPC.94

In this case the weapon used is the gun and twice he was shot by the gun, this shows his clear
intention to kill the deceased and also the whole act was pre-planned as the gun with the civil
gun was arranged, the deceased was shot while he went for the walk knowing the time of his
walk and also that nobody else accompanied him.

Intention and injury sufficient to cause death-analysing the third clause of sec300 0f I.P.C.
Act is intentional or accidental:

The Supreme court laid down the following facts:95

1) It must establish, quite objectively that a bodily injury is present.

2) The nature of the injury must be proved
3) It must be proved that there was an intention to inflict that particular bodily injury, that is
to say that it was not accidental or unintentional or that some other kind of injury was
intended.
4) It must be proved that the injury of the type described made up of the three elements set
out above is sufficient to cause death in the ordinary course of nature. Once these four
elements are established by the prosecution the offence is murder under sec.300.
In the case of Gudar Dusadh v. State of Bihar: Ramlal96 was given a blow on the head and
he died instantaneously and as such there arose no occasion to give second blow to him. As
the injury on the head was deliberate and not accidental and as the injury was sufficient in the

92
Supra note 2 Pg. 2428.
93
A.I.R. 1979 S.C. 80 at P.82.
94
Sec.300 (3): intention to cause bodily injury which is sufficient in the ordinary course of nature to cause
death.
95
Andna v. State of Rajasthan, A.I.R. 1966 S.C. 148 at p. 151.
96
Gudar Dusadh v. State of Bihar, A.I.R 1972 SC 952.

MEMORIAL ON BEHALF OF THE APPELLANT Page 17

ordinary course of nature to cause death, the case against the appellant would fall squarely
within the ambit of clause “thirdly” of Sec 300, IPC.

In the present case the deceased was shot by a gun, the bodily injury of such a nature is not
accidental or unintentional.

Firing of gun not possible, unless trigger is pulled it was held that firing of two gun shots
were not accidental.97

In the present case the captain was purposely shot with the gun, two times so it is clear that it
was a murder.

A person inflicting injury of a kind that is sufficient to cause death in the ordinary course of
nature will be guilty under section.300, Penal Code unless it can be shown or reasonably
deduced that injury was accidental or unintentional.98In this case the injury inflicted clearly
shows that it was an act to kill the Captain.

Kundula Bala Subrahmanyam & Anr. v. State Of Andhra Pradesh 99, upon hearing the
screams of the deceased, three neighbours rushed in to find the deceased burning in the
kitchen while her husband and in-laws were rushing out of the kitchen. The neighbours
requested the in-laws to get water and blankets and extinguished the fire. The deceased
told her that her mother-in-law had poured kerosene over her and her husband had set
fire to her. She further told her brother "please tell mother and father as I am telling you.
My mother-in- law poured kerosene on me and my husband set fire. You tell father and
mother about this. Don't fight. Anyhow I am dying." She was declared dead upon arrival
at Government Hospital, Kovour. In this case, the Hon‟ble Supreme Court has found that
the dying declaration given by the deceased was trustworthy and believable and was
relied upon. The motive for the commission of this murder was found and established to
be in connection with a demand for dowry. The Supreme Court upheld the conviction of
the accused under Section 302 read with Section 34 of the IPC 1860.
If medical officers evidence, investigating officers evidence are consistent with the
Dying statement and the circumstantial evidence, the Dying Declaration posses
acceptability inspite of any weakness pointed out by the defense.100

97
Vinod Kumar v. State of U.P, 1991 Supp (1) SCC 353 at p.354.
98
Public Prosecutor, Andhra Pradesh v. Bollapali Veeraiaah, 1962. M.L.J. (Cr.) 86.
99
1993 SCC (2) 684.
100
Ghurphekan v. State of U.P.,(1972) 3 SCC 361.

MEMORIAL ON BEHALF OF THE APPELLANT Page 18

In the case at hand, viewing all the circumstances that took place and the dying declaration
given by the captain stating that, “he is in this situation because of Major Chehar
Nath”101clearly show that the major is responsible for the murder of the deceased.

101
Factsheet, ¶ 3.

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 PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited,
the counsel for the Petitioner humbly prays before this Hon’ble Supreme Court of India to
adjudge and declare:-

1. That the dying declaration is admissible.

2. That major chehar nath singh is guilty of murder and should be charged for
murder under section 302 of the ipc and should be awarded exemplanary
punishment.section 302- whoever commits murder shall be punished with death,
or [imprisonment for life], and shall also be liable to fine.
3. That the courtmartial should be upheld and the major should be dishonourably
discharged from service.

And pass any other order as this Hon’ble Court may deem fit and for this act of kindness, the
counsel for the Petitioner, as in duty bound shall forever pray.

HUMBLY SUBMITTED
SD/-
COUNSEL FOR THE PETITIONER

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