{SYNOPSIS OF FACTS}

Mr. Raj Kumar was running a successful property dealing business in Kuru, he got married to
Malini in the year 2011 according to Hindu rites and ceremonies. In September, 2013, Raj
Kumar told Malini that he had suffered major loss in business. Malini voluntarily offered to
sell the gold which was kept safe in a bank locker jointly accessed by both. Those ornaments
were gifted by her parents and other relatives from both the sides. Raj Kumar denied Malini
suggestion and he rather suggested that she should approach her parents for 20 lakhs from them.
Upon hearing that Malinis approach that she is not going to approach her parents, Raj Kumar
got agitated and kept on insisting that she must demand from her parents. On several occasions,
they had heated arguments where he even went to the extent of saying that her parents have not
given him enough at the time of marriage.
II
Malini decided to open the locker by her own. Upon reaching the bank, she found that five
months ago i.e. on 07/07/2013, most of the gold ornaments were removed by Raj Kumar, as he
too has an access to it. Malini confronted Raj about the same. He told her that since it was a
joint locker, therefore, he had an equal right over the said property and no legal authority allows
her to ask any question. Disappointed by the act, Malini approached a law consultancy firm,
Law consultancy firm advised her that the gold ornaments come within the purview of
Stridhan. Malini took the case to family court. Family Court ruled in favour of her husband by
relying upon the facts:
That bank locker being a joint locker could be operated by either of them.
That there was sufficient evidence to suggest that after selling the ornaments, the husband
used the money for stabilizing business which was again in the interest of the family.
As an Obiter Dictum, Court stated that joint locker should be operated by mutual consent.
However, in the said case wife had already shown her intention of selling the gold. Aggrieved
by the decision of Family Court Malini filed an appeal with the High Court of Rajasthan with
the contention that gold ornaments come within the purview of Stridhan. The case is pending.

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 {Synopsis of Facts}

III
To sort out their differences they went outside in October, 2015. They were accompanied by
their friends Rekha and her husband Vikram in the same guest house. On the night of
10/10/2015, at around 2:00 AM, they heard some noise coming from Malini and Raj Kumars
room. Both Rekha and Vikram with the staff rushed towards the room. The door of their room
was broke open and Malini was found burning in flames. Raj Kumar and their daughter were
found lying unconscious in the next room. With the help of the staff, Rekha and Vikram were
able to put off the flames on Ms. Malinis body. After this, a statement was given by Malini
wherein she said that her husband had tried to burn her by pouring petrol. The said statement
was recorded by Rekha, who happens to be a law teacher.
Malini gave another statement as second dying declaration in the presence of doctors and
police personnel on guard that she herself had poured petrol on her body and had set herself
on fire.
IV
Next morning, Malini died. The Medical Report of Malini, Raj Kumar and their daughter stated
that:
Death of Malini was caused by Burns.
High Dose of Zolpidem was found in the blood of Raj Kumar and his daughter.
Police registered a case. Both Dying Declarations, first given to Rekha and second given in the
presence of Doctors and Police Personnel were part of the police report. It was stated in the
report by the investigating officer that Raj Kumar had himself consumed sleeping pills and he
was having enough control over his body to set her on flames.

The court of Session gave life imprisonment to Raj Kumar under section 302 of IPC. However,
the decision of the Court of Session was challenged by Raj Kumar, as he relied on the Second

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Dying Declaration given in the presence of Doctors and Police Personnel. The High Court
clubbed both the appeals, one by Malini on the contention of Stridhan and other by Raj Kumar.

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4|Page
MEMORIALS FOR APPELLANTS
 {STATEMENT OF JURISDICTION}

THE APPELLANTS HAS APPROACHED THIS HONBLE HIGH COURT OF

RAJASTHAN INVOKING ITS APPELLATE JURISDICTION UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, 1973.

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 {ARGUMENTS PRESENTED}

ISSUE 1: WHETHER THE APPEAL FILED BY Mr. RAJ KUMAR AND MALINI
CAN BE HEARD TOGETHER BY THE HONBLE HIGH COURT OF
RAJASTHAN?

ISSUE 2: WHETHER THE STATEMENT GIVEN BY MALINI IN THE PRESENCE

OF DOCTORS AND POLICE PERSONNEL COMES WITHIN THE PURVIEW OF
DYING DECLARATION UNDER SECTION 32 OF THE INDIAN EVIDENCE ACT,
1872?

ISSUE 3: WHETHER THE ACT COMMITTED BY Mr. RAJ KUMAR COMES

WITHIN THE PURVIEW OF SECTION 302, 304B AND 498A OF INDIAN PENAL
CODE, 1860?

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 SUMMARY OF ARGUMENTS

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MEMORIALS FOR APPELLANTS
 {SUMMARY OF ARGUMENTS}

ISSUE 1: WHETHER THE APPEAL FILED BY Mr. RAJ KUMAR AND MALINI
CAN BE HEARD TOGETHER BY THE HONBLE HIGH COURT OF
RAJASTHAN?

It is humbly submitted to the kind concern of this court that it would be detrimental to the
principles of justice in case the civil suit which concerns to the declaration of stridhan and the
right of its usage is in question and in the criminal proceedings wherein the plaintiff is being
tried for the murder under Section 300 read with S. 302 of Indian Penal Code, 1860. It is humbly
submitted to concern of the court that consolidation is exercised in order to avoid multiplicity
of proceedings, to avoid chances of conflicting decisions on the same point, to prevent delay
and to avoid unnecessary costs and expenses. It is also submitted to the court that consolidation
of civil suits is an exercise of inherent power of the civil court and is exercised in cases which
are based on same or similar cause of action.

ISSUE 2: WHETHER THE STATEMENT GIVEN BY MALINI IN THE PRESENCE

OF DOCTORS AND POLICE PERSONNEL COMES WITHIN THE PURVIEW OF
DYING DECLARATION UNDER SECTION 32 OF THE INDIAN EVIDENCE ACT,
1872?

It is humbly submitted that the statement given by Malini in presence of doctors and police
personnel comes within the purview of dying declaration under section 32(1) of the Indian
Evidence Act, 1872. Dying Declaration means the statement given just before death. When two
dying declaration are there the last declaration is admissible. The Dying declaration made in
presence of doctors and police personnel is relevant.

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 {Summary of Arguments}

ISSUE 3: WHETHER THE ACT COMMITTED BY Mr. RAJ KUMAR COMES

WITHIN THE PURVIEW OF SECTION 302, 304B AND 498A OF INDIAN PENAL
CODE, 1860?

It is humbly submitted to the kind perusal of this Jurisdiction that the act committed by Mr Raj
Kumar does not come within the purview of section 302, 304B and 498A of the Indian Penal
Code, 1860.No act was done which comes within the purview of Section 302 of IPC. It does
not come within the purview of section 304B of IPC as essentials of section 304B are not found.
It is contended too that Mr.Raj Kumar is not liable for any cruelty stated under section 498A
of IPC.

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 ARGUMENTS ADVANCED

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 {ARGUMENTS ADVANCED}

I. WHETHER THE APPEAL FILED BY Mr. RAJ KUMAR AND MALINI CAN BE
HEARD TOGETHER BY THE HONBLE HIGH COURT OF RAJASTHAN?

(1.) It is humbly submitted to the kind concern of this court that it would be detrimental to the
principles of justice in case the civil suit which concerns to the declaration of stridhan and the
right of its usage is in question and in the criminal proceedings wherein the plaintiff is being
tried for the murder under Section 300 read with S. 302 of Indian Penal Code, 1860. It is humbly
submitted to concern of the court that consolidation is exercised in order to avoid multiplicity
of proceedings, to avoid chances of conflicting decisions on the same point, to prevent delay
and to avoid unnecessary costs and expenses.1 It is also submitted to the court that consolidation
of civil suits is an exercise of inherent power of the civil court and is exercised in cases which
are based on same or similar cause of action.2

(2.) It is further submitted to the kind analysis of the court that a similar arrangement also
exits for the trial of criminal cases in order to avoid multiplicity and natural errors which may
defeat the ends of justice.3 However, it is observed by the court that a person could not be
allowed to ride two horses at a time (a regular civil suit before a civil court and a criminal
proceeding on the same subject matter) in cases where a person has chosen a particular mode
of relief for the instant case.4

(3.) The counsel would like to bring the attention of the court to the fact that it would be both
improper and unjust to consolidate two proceedings which are based on entirely different cause

1
Bharat Nidhi Ltd v. Shital Prasad Jain, AIR 1981 Del 251
2
Section 151 of Code of Civil Procedure, 1908
3
Section 210 of Code of Criminal Procedure, 1973
4 5
Ravinder Haribhau Karamkar V/s Shaila Ravinder Karamkar, 1992, Cr. L.J. 1845 (Bombay)
Mohd. Jamal v Mohd. Sharfuddin, 1998(3) ALT 397

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of actions and due to the fact that such proceedings are based on entirely different set of
principles, the broad objective of justice would be defeated in case, the two proceedings are
continued together.5

(4.) It is also brought to the kind concern of this court that in the present case, Mr. Raj
Kumar has been sentenced by the sessions court to life imprisonment under various sections
of the Indian Penal Code, 1860 and therefore the present petition is an appeal preferred as the
plaintiff stands aggrieved by the erroneous judgment of the sessions court.5 It is further
submitted that the civil suit pertains to judgment on the question as to whether stridhan under
the Hindu Marriage Act could be utilized by either of the spouses or both of them independently
which makes it clear at the outset that the evidence required under the two proceedings is
substantially different from one another because of which clubbing of both of the trials would
defeat the ends of justice and would be erroneous.6

(5.) It is therefore submitted that the inherent powers as contained in the Code of Civil
Procedure, 1908 could not be exercised in light of the statements as made above.

5
Section 374, CrPC, 1973
6
Section 151, CPC, 1908

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II. WHETHER THE STATEMENT GIVEN BY MALINI IN THE PRESENCE OF
DOCTORS AND POLICE PERSONNEL COMES WITHIN THE PURVIEW OF
DYING DECLARATION UNDER SECTION 32 OF THE INDIAN EVIDENCE
ACT, 1872?

(6.) It is humbly submitted that the statement given by Malini in presence of doctors and police
personnel comes within the purview of dying declaration under section 32(1) of the Indian
Evidence Act, 1872. Dying Declaration means the statement given just before death [A]. When
two dying declaration are there the last declaration is admissible [B]. The Dying declaration
made in presence of doctors and police personnel is relevant[C].

[A]. DYING DECLARATION MEANS THE STATEMENT MADE JUST BEFORE DEATH
(7.) It is humbly submitted that dying declaration means that a statement written or verbal of
written facts made by a person who is dead7. It is contended too that when the conviction of
the accused is sought to be based on oral dying declaration, the exact word of the deceased
must be reproduced8. In the present case Malini Stated in her second dying declaration that she
herself had poured petrol and burnt herself9.

1.1 THE APPREHENSION OF DEATH WAS VERY HIGH WHEN SHE GAVE HER DYING
DECLARATION IN PRESENCE OF DOCTORS AND POLICE PERSONNEL

(8.) It is contended that the apprehension of death was very high and just after making the last
statement Malini died due to burn11. Where there is more than one dying declaration one cannot
be rejected because of the contents of the other10. Statement must relates to the cause of death

7
Sant Gopal v. State of U.P., 1995 CrLJ 312 (All)
8
Darshana Devi v. State 1996 SCC (Cri) 38
9
8 Fact Sheet 11
9 Fact Sheet
10
Nallam Veera Satyanandam v. Public Prosecutor, High Court of A.P. AIR 2004 SC 1708

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or exhibits circumstances leading to his/her death11, and circumstances stated must relate to
death12, Malini had already stated that she herself poured petrol over her15.it is Submitted that
a person would not like to meet his maker with a lie in his mouth. The requirements are
dispensed with13.

(9.) It is therefore contended that the statement given by Malini in the presence of Doctors
and Police Personnel is admissible.

[B]. WHEN TWO DYING DECLARATION ARE THERE THE LAST DECLARATION IS ADMISSIBLE

(10.) It is humbly submitted that when there is an alteration in Dying Declaration which does
not conform to the original dying declaration made by the victim, such a Dying Declaration
should be scrutinized with great care and caution before acceptance 14. If the latter dying
declaration was not proved by competent witness. It was held that the latter could not be relied
upon15. The court in a case16 found that all the three dying declaration given by a 95% burnt
woman was defective in one respect or other, the court said that they could not be used for
recording conviction.

2.1 DYING DECLARATION RECORDED BY DOCTOR

(11.) It is humbly submitted that dying declaration recorded in presence of doctor is sufficient
to convict or release a accused17. The essential element is the presence of a witness18 in order
to attest and to make the information reliable. A dying declaration made before a judicial

11
Sharad Birdhichand Sharda v. State AIR 1984 SC 1622
12
Narain Singh v. State of Haryana AIR 2004 SC 1616
15
8 Fact Sheet
13
Dasrath v. State of M.P., AIR 2008 SC 316
14
Lingaiah v. State of A.P., 1994 CrLJ 1242 (AP)
15
Harbans Lal v. State of Haryana, 1993 CrLJ 75
16
State of Maharashtra v. Sanjay, AIR 2005 SC 97
17
Malik Ram Bhoi v. State of Orissa, 1993 CrLJ 984
18
Niru Nanhar Becck v. State of Orissa, 1995 CrLJ 2412

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magistrate has a higher judicial value19. But there is no requirement that it should be always
recorded by a magistrate. However made, if it is found to be voluntary and true, it can be made
basis of conviction without further corroboration20.

2.2 DYING DECLARATION RECORDED BY POLICE

(12.) It is humbly submitted that in emergency a dying declaration can be recorded without
calling a magistrate by police21. A clear and corroborated dying declaration can be rejected just
only because it was recorded by a police officer22. Recording of a statement by a magistrate is
not in itself a proof of truthfulness23. Thus, it is submitted that statement made before a police
officer may be classified as a dying declaration if it relevant.

(13.) Therefore, it is humbly submitted that when there are two dying declarations the last
dying declaration may be admitted.

[C]. THE DYING DECLARATION MADE IN THE PRESENCE OF DOCTORS AND POLICE PERSONNEL
IS RELEVANT

(14.) It is humbly submitted that where a deceased stated in his dying declaration that his own
son has injured him, it was held that he would not speak falsely against his son and the dying
declaration was truthful and reliable24. Ina bride burning case, the victim implicated her mother-
in-law alone in her dying declaration, though she was not at good terms with her husband and
father-in-law. It was held that the declaration pointed towards its truthful nature and it could be

19
Samadhan Dhudaka Koli v. State of Maharashtra, AIR 2009 SC 1059
20
S.P. Devaraju v. State of Karnataka, AIR 2009 SC 1725
21
Pearilal Rana v. State of W.B., 1992 CrLJ 2644 (Cal)
22
Ram Singh v. State (Delhi Admn), 1995 CrLJ 3838 Delhi
23
Kanchy Komuramrma v. State of A.P., 1996 SCC (Cri) 31
24
Bellana Kannam Naidu v. State of U.P., 1994 CrLJ 1146 (AP)

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relied upon25. It was held by the court that where the victim was severely injured and died next
day, the court said that the detailed account of how the accident took place could not have been
expected26.

(15.) It is humbly submitted that various statement in the dying declaration showed an inherent
attempt by the deceased to falsely implicate the accused. The declaration was found not
truthful. The court did not interfere in the acquittal27. It is submitted too that the word
death in S.32 is inclusive of suicidal or homicidal death28. Statement by a person as to the
cause of his death becomes relevant when the cause of his death comes into question even if
the person was not expectation of death at the time of making the statement29.

(16.) It is humbly submitted that in a case30 where a victim stated that she specifically brought
to the hospital on the condition that she would give a wrong statement. A subsequent statement
declaration was consistent with the second. The court relied upon the second dying declaration.
Therefore, it is humbly submitted before this Honble High Court that the declaration made by
Malini in the presence of Doctors and police personnel is admissible, relevant and comes within
the purview of section 32(1) of the Indian Evidence Act, 1872.

25
Yazi Venkataratnam v. State, 1993 CrLJ 3240 (AP)
26
Laljit Sigh v. State of U.P., 2001 CrLJ 143
27
State of Rajasthan v. Yusuf, AIR 2009 SC 2674
28
Kans Raj v. State of Punjab, 2000 CrLJ 2993
29
Thakur Das v. State of H.P., 1992 CrLJ 2415 (HP)
30
Sher Singh v. State of Punjab, AIR 2008 SC 1426

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III. WHETHER THE ACT COMMITTED BY Mr. RAJ KUMAR COMES WITHIN
THE PURVIEW OF SECTION 302, 304B AND 498A OF INDIAN PENAL CODE,
1860?

(17.) It is humbly submitted to the kind perusal of this Jurisdiction that the act committed by
Mr Raj Kumar does not come within the purview of section 302, 304B and 498A of the
Indian Penal Code, 1860.No act was done which comes within the purview of Section 302 of
IPC[A]. It does not come within the purview of section 304B of IPC as essentials of section
304B are not found [B]. It is contended too that Mr.Raj Kumar is not liable for any cruelty
stated under section 498A of IPC [C].

[A]. ACT DOES NOT COME WITHIN THE PURVIEW OF SECTION 302 OF IPC
(18.) It is humbly submitted that the act committed by Mr. Raj Kumar does not come within
the purview of section as Malini already made a statement in which she stated that she herself
poured petrol and burnt herself31. Various statements in the dying declaration showed an
inherent attempt by the deceased to falsely implicate the accused32.

1.1 CIRCUMSTANTIAL EVIDENCE

(19.) It is humbly submitted that in the present case the circumstances also shows that Raj
Kumar has done nothing. Witnesses may lie but not the circumstances33. Circumstantial
evidences may be used to prove that whether the person is guilty or not but the court should
take caution34. As in the present case the circumstances clearly shows that Raj Kumar was
unconscious and a high dose of zolpidem was found in his blood. As high dose of sleeping pills

31
8 Fact Sheet
32
State of Rajasthan v. Yusuf, AIR 2009 SC 2674
33
Vilas Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158
34
State of Haryana v. Ved Prakash, AIR 1994 SC 468

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are very risky they can even cause a persons death. It is contended too that in cases where
circumstantial evidences are used it should be proved beyond reasonable doubt35. Infirmity or
lacuna in the prosecution case cannot be cured by false defence pleas36. Therefore
circumstantial evidences show that Mr. Raj Kumar has not done any act which comes within
the purview of section 302 of IPC.
1.2 MALINI ALREADY STATED IN HER DYING DECLARATION THAT SHE HERSELF POURED
PETROL

(20.) It is humbly submitted that Malini already stated in her dying declaration that she herself
poured petrol over her. It is to be noticed that where the victim give various statement then the
doubt come into existence that whether the victim is trying to falsely implicate the accused 37.
Therefore, it is humbly submitted to this Jurisdiction that there was no act done which comes
within the purview of section 302 of IPC and thereby conviction of Mr. Raj
Kumar is against the principle of Justice. Therefore it is pleaded before this Honble court that
Mr. Raj Kumar has not done any act which comes within the purview of section 302 of IPC.

[B]. THE ESSENTIALS OF SECTION 304B ARE NOT FOUND

(21.) It is humbly submitted that the essentials of section 304B are not found as Mr. Raj Kumar
was asking for help in order to cover the loss which was incurred in business and he also
promised that he would return all the money once the business got stable38. It is submitted that
the matter need to be examined on the facts and circumstances of the case39 and thereby failing
the proximity test. The main ingredient for attracting the provision of this section is cruelty and
harassment in connection with the demand for dowry40, and in the present case the connection

35
Bhagat Ram v. State of Punjab, AIR 1954 SC 621
36
Arun Bhakta v. State of W.B., AIR 2009 SC 1228
37
State of Haryana v. Ved Prakash, AIR 1994 SC 468
38
2 Fact Sheet
39
Ashok Kumar v. State of Haryana, 2010 (12) SCC 350
40
Kasmir Kaur v. State of Punjab, AIR 2013 SC 1039

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is not established as Mr. Raj Kumar had already promised to return the money once his business
is stable.

2.1 PRESUMPTION OF DOWRY DEATH (S.113B OF IEA)

(22.) It is humbly submitted that it should be established that such cruelty or harassment
should take place soon before death41, but in the present case that chain is not established as
Mr. Raj and Malini decided to reconcile and in order to have reconciliation they have planned
for vacations in a hill station. In a case42 it was held that all the ingredients of this section must
exist conjunctively. There must be nexus between cruelty and harassment to raise the

41
Keshab Chandra Panda v. State of Orissa, 1995 CrLJ 174 (Ori)
42
Nand Kishore v. State of Maharashtra 1995 CrLJ 3706 (Bom)

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Presumption of dowry death under section 113B of the evidence act. In the present case that nexus
is missing clearly. A general interpretation of the meaning of Dowry as stated in Dowry
Prohibition Act, 1961 which says that there should be demand for valuables or securities 43 but in
the present case the demand is not for that purpose. The demand in this case is for covering the
loss incurred in business and that payment would be returned once the business got stable.

[C]. Mr. RAJ KUMAR IS NOT LIABLE FOR CRUELTY UNDER SECTION 498A OF IPC

(23.) It is humbly submitted that Mr. Raj Kumar is not liable for cruelty under section 498A of
IPC. As it stated that cruelty or harassment must be shown either by husband of the woman or by
the relative of her husband44. In the present there is no such harassment or cruelty shown by Mr.
Raj Kumar. Where after a short spell of cruelty, the husband and wife reconciled and resume joint
life and the wife made no complaint of cruelty then this section could not come into play45, as in
this case the condition is just replica.

(24.) It is humbly submitted that the greed for dowry and the dowry system as an institution calls
for severest condemnations by all sections46. As cruelty is a sensitive issue it should dealt with
utmost care as even a small mistake can destroy the life of any person. Harassment of woman with
a view to coercing her or any person related to her to meet any unlawful demand for any property
or valuable security or on account of failure by her to meet such demand47. It is humbly submitted
that a lady poured kerosene oil and it was discovered that her husband used to beat her after taking
liquor and he used to borrow money from the villagers for the purpose. The court held that this

43
Madhu Sudan Malhotra v. K.C. Bhandari, (1998) Supp. 1 SCC 424
44
Suvetha v. State, (2009) 6 SCC 757
45
Keshab Chandra Panda v. State of Orissa, 1995 CrLJ 174 (Ori)
46
Bhagwant singh v. Commissioner of Police, AIR 1983 SC 826
47
Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121

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amounted to cruelty48, but in the present no such ingredient has been seen, it was just a simple
demand for the purpose of recovering the loss incurred in business with a promise to repay the
same amount once the business got stable.

(25.) Therefore it is humbly submitted that no act was done by Mr. Raj Kumar which comes
within the purview of Sections 302, 304B and 498A of the Indian Penal Code . It was a act just to
ensure the proper functioning of business in order to earn his livelihood for his family and it would
be a great injustice if he might be punished for the act which he has not done. It is contended too
that it there are two view one pointing the guilt of the accused and other one pointing his innocence,
the court must adopt the view favorable to the accused49.

48
Pachipala Laxmaiah v. State of A.P., 2001 CrLJ 4063 (AP)
49
Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842

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 {PRAYER}

Wherefore it is prayed, in light of issues raised, arguments advanced and authorities cited that this
Honble Court may be pleased to:

1. Declare that appeal filed by Mr. Raj Kumar and Ms. Malini cannot be heard together by
this Honble Court.
2. Declare that the Statement given by Ms. Malini in the presence of Doctors and Police
Personnel does not comes within the purview of Dying Declaration under section 32 of
Indian Evidence Act, 1872
3. Declare that the Act committed by Mr. Raj Kumar does not comes within the purview of
Sections 302, 304B and 498A of the Indian Penal Code, 1860
4. Declare that the Gold Ornaments does not come within the purview of Stridhan under
section 14 of Hindu Succession Act, 1956.

And Pass any other Order, Direction or Relief that it may deem fit in the Best Interests
Justice, Fairness, Equity and Good Conscience.

For this Act of Kindness, the Appellants Shall Duty Bound Forever Pray.

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