TK - 03

IGNITAC 2023- Ignatius National Trial & Advocacy Competition

IN THE HON’BLE SESSION COURT OF GIRPUR

IN THE MATTER OF
State of Bangopradesh
Vs.
Vivek Mitra

FOR OFFENCES CHARGED UNDER:

SECTION 376A READ WITH SECTION 302 OF THE INDIAN PENAL
CODE, 1860

MEMORIAL SUBMITTED ON BEHALF OF PROSECUTION COUNSELS

-Memorial submitted on behalf of Prosecution-

 IGNITAC 2023- Ignatius National Trial & Advocacy Competition

TABLE OF CONTENTS

I. List of Abbreviations

II. Index of Authorities

- Cases

- Books

- Statutes

III. Statement of Jurisdiction

IV. Statement of Facts

V. Summary of Arguments

VI. Arguments Advanced

VII. Prayer

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LIST OF ABBREVIATIONS

[Link] ABBREVIATION DEFINITION

1. § Section

2. ¶ Paragraph

3. & and

4. v. versus

5. COI Constitution of India

6. IPC Indian Penal Code

7. IEA Indian Evidence Act

8. CrPC Criminal Procedure Code

9. Hon’ble Honorable

10. SCC Supreme Court Cases

11. FIR First Information Report

12. DNA Deoxyribonucleic acid

13. SC Supreme Court

14. PW Prosecution Witness

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INDEX OF AUTHORITIES

CASES –

1. Karunakaran v. State of Tamil Nadu, 1976 AIR 383.

2. Sadhuram v. State of Rajasthan, Appeal (crl.) 146 of 2002.
3. Mahender Chawla & Ors v. Union of India & ors, Writ Petition (Criminal) No. 156 of
2016.
4. State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840.
5. Sathyan v. State of Kerala [(2015) 1 KLT 586.
6. Ramankutty v. Excise Inspector, Chalannur Range [2013 (3) KHC 308].
7. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883.
8. Ravindra Shantaram Sawant v. State of Maharashtra, AIR 2000 SC 2461.
9. Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 14.
10. State of Maharashtra v Meyer Hans George, AIR 1965 SC 722.
11. Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC).
12. Laxman v. State of Maharashtra, AIR 1974 SC 1803.
13. Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142.
14. Chhotka v State of WB, AIR 1958 Cal 482.
15. Ganga Ram v. Emp, 62 IC 545.
16. Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).
17. Union Of India vs Prafulla Kumar Samal & Anr, 1979 SCR (2) 229.
18. R.K. Dey v. State of Orissa, (1977) AIR 170, 1977 SCR (1) 439 (India).
19. Rajesh & Anr V. State of Haryana, AIR 2013 SC 1784.
20. C.K. Jaffer Sharief vs State (Thr C.B.I.), Criminal Appeal No. 1804 of 2012.
21. Amulya Behera v Nabaghana, 1995 CriLJ 3559.
22. Sunil Shetty Chairman of Popcorn Entertainment P. Ltd. v. Puran Chauhan and Anr.
(2017), CRL.M.C. 2450/2010.
23. Govind Reddy v. State of Mysore,1960 AIR SC 291960.
24. Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
25. Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors, 2010 AIR SC 806 2009.
26. Dayal Singh and Others v. State of Uttaranchal (2012) 8 SCC 263.
27. State of Himachal Pradesh v. Jai Lal and Others (1999) 7 SCC 280.

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28. Macchi Singh v. State of Punjab, AIR 1983 SC 1957.

29. Govind Swamy v. State of Kerala, Crl. [Link]. 1584-1585 of 2014.

BOOKS –

 Relevancy Proof and Evaluation of Evidence in Criminal Cases, U.L. Bhat

 Law of Evidence, Vepa P. Sarathi
 Law of Evidence, Woodroff & Amir Ali
 Expert Evidence: Medical and Non-Medical, Rao & Rao
 Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007) .
 Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010).
 Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
 Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
 Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)

STATUTES –

 Indian Penal Code, 1860

 Criminal Procedure Code, 1973
 Indian Evidence Act, 1872

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STATEMENTS OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with

Section 209 of the Code of Criminal Procedure, 1973.

Section 177:

“177. Ordinary place of inquiry and trial

Every offense shall ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.”

Read with Section 209:

“209. Commitment of case to Court of Session when an offense is triable exclusively by it

When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offense is triable exclusively

by the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.‟

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STATEMENT OF FACTS

 Victim Profile - Kavita, a 21-year-old lady, is a resident of Girpur District situated in

Bangopradesh State, one of the provinces in the Union of Dustan, and is a regular
passenger of the Dragon passenger train running between Bhedia and Girpur.
 Occurrence of Crime - On 01-03-2023, while taking the usual commute, she was found
unconscious in the woods near the Girpur Railway Station around 9:30 p.m. Later, in
Government Medical College Hospital, Girpur, she succumbed to her injuries on 02-03-
2023 around 3:00 p.m.
 Background - On 26-02-2023, Vivek Mitra, the accused, a habitual offender, attempted
street sexual harassment on a girl named Vanshika, the friend of the victim, in her
presence at the Girpur Bus stop. It was objected by the deceased to which he threatened
dire consequences of loss of limb and life if they reported to the police. They filed an FIR
at Girpur Police Station.
 Evidence - DNA samples were collected from the site of the crime, and the victim’s body
was compared with the suspect’s samples. A button on his shirt was found in the woman’s
compartment. Traces of his semen were found in the victim's body and clothes. Her
fingernails had traces of his skin cells and blood. Fingernail scratch marks were also
found on his body.
 Witness - PW3 witnessed from another compartment that he heard loud screams and
thuds coming from the ladies compartment and he thought that a robbery was going on.
Later he found out that the accused smashed the head of the victim against the wall when
he tried to grope the victim. When she resisted, he pushed her hands into the gap of a
closing door, threw her out of the moving train, and jumped out himself.
 Investigation - Police took up an investigation of the matter based on the written
complaint of the father of the victim, Babu Singh. Witness statements under Section 161
of the Code of Criminal Procedure were recorded by the Investigating Officer during the
investigation.
The police arrested the accused on 09-03-2023 and produced him before the Learned
Chief Judicial Magistrate, Girpur.

 Chargesheet - From the statement of the witnesses and the material facts, a Prima Facie
case has been registered against Vivek Mitra under section 302/376A of the Union of
Dustan Penal Code against the accused person.

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SUMMARY OF ARGUMENTS

1. Whether an application for discharge of accused is maintainable or not?

If so, on what grounds?

It is humbly contended that Vivek Mitra the accused, is guilty of unlawful offenses under
Section 376A/302 of IPC. It has been alleged that the accused has committed murder in the
course of assault resulting rape. The prosecutor contends that there is the presence of
sufficient evidence against the accused and the circumstantial evidence in the instant matter
shows that within all human probability, the act must have been done by the accused. The
presence of a clear motive, the accused was acquainted with the victim, and considering the
fact that the accused was a habitual offender makes him the only possible assailant. The
accused has no right to seek discharge under Section 227 of [Link], as the prosecutor, seeks
the court to adjudicate and frame the charges under Section 228 of [Link] for rape and murder
and call for a trial if they think that there is a ground to presume that the accused has
committed the offence and is exclusively triable by the Court of Session.

2. Are there sufficient grounds for framing of charges against the accused?

It is humbly submitted before this Hon’ble Court on behalf of the Prosecution that there are
sufficient grounds for framing of charges against Mr Vivek Mitra, the accused. Charges can
be framed against him for the offence of Rape and Murder of the victim. The accused can be
charged with murder since both the actus reus and the mens rea of the crime were satisfied in
the current case, disproving any claims of private defence. In addition to this, the autopsy
report, which is a vital component of evidence in this case, allows the accused to additionally
be charged with the offense of rape.

3. Can the accused be acquitted of the charge of S.302 due to lack of mens rea?

It is humbly submitted before this Hon’ble Court that the accused cannot be acquitted of the
charge under Section 302, considering that the element of Mens Rea is present. The accused
was previously involved in the illicit act of threatening the victim with severe repercussions,
including loss of limb and life, if she happened to file a complaint about his harassing

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behavior to the police. Furthermore, he exhibited criminal intent by physically assaulting the
victim on the train. The same motive was evidenced by his actions during the attack and the
injury marks on the victim's body which clearly denoted that the attack was solely done with
the intention to kill. As a result, the counsel pleads that he should not be acquitted.

4. Whether circumstantial evidence and expert opinion is sufficient to convict the

accused for the charge of murder?

It is Humbly submitted before the Honourable Sessions Court of Girpur, that in the present
case a compelling chain of circumstantial evidence and expert opinion has been presented,
pointing unequivocally to the guilt of Mr. Vivek Mitra, the accused is sufficient to convict the
accused for a charge of murder and rape of the victim. This evidence includes the discovery
of the unconscious victim near Girpur Railway Station, the presence of the accused's semen
on the victim, fingernail scratch marks indicating a struggle, eyewitness testimony, the
accused's attempt to abscond, and the presence of a motive due to prior harassment of the
victim. Dr. Priya Ghosh's expert opinion on the victim's injuries further corroborates these
charges. The combination of these elements leaves no reasonable doubt about the accused's
culpability, emphasizing the need for his conviction and appropriate punishment based on the
principles of corroboration.

5. Whether the offence committed by the accused tantamount to the rarest of rare
case and should be tried in a fast-track court?

It is Humbly contented in front of the Hon’ble court of Girpur that the offense committed by
the accused does fall under the category of rarest of rare and should be tried in a fast-track
court. The offenses committed by the accused, including rape and murder, fall within the
"rarest of rare" category, characterized by their extreme brutality, gruesome crime scene, and
the motive arising from prior harassment. These heinous acts not only demand swift and
exemplary justice but also raise concerns for society's safety. To ensure timely justice
delivery and send a clear deterrent message, it is urged that the case be tried in a fast-track
court, thereby providing closure to the victim's family and upholding the principles of justice.

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ARGUMENTS ADVANCED

1. WHETHER AN APPLICATION FOR DISCHARGE OF THE ACCUSED IS

MAINTAINABLE OR NOT? IF SO, ON WHAT GROUNDS?

It is humbly contended that Vivek Mitra (hereinafter referred to as the accused) is guilty of
unlawful offenses under Section 376A/302 of the Indian Penal Code, 1860 (hereinafter
referred to as IPC). In the matter at hand, it has been alleged that the accused has committed
murder in the course of assault resulting rape. The accused has no right to seek discharge
under Section 227 of [Link] as the prosecutor seeks the Hon’ble Court to adjudicate and
frame the charges under Section 228 of [Link] for rape and murder under Section 376A/302
of IPC and call for a trial if he thinks that there is a ground to presume that the accused has
committed the offense and is exclusively triable by the Court of Session.

Murder is death caused by the act of the offender, the death caused is done with the intention
of causing death or causing such bodily injury which is likely to cause the death of the person
to whom the harm is caused. And death resulting from rape is a heinous crime. To establish a
charge under this section, the prosecution seeks to prove that the offense is committed by the
accused, beyond a reasonable doubt.

1.1 There is sufficient evidence against the accused to accuse him under Section
302/376A.

It is humbly submitted before this Hon’ble Court that the circumstantial evidence in the
instant matter shows that within all human probability, the act must have been done by the
accused.

On the night of 1st March, the victim was returning home on a train where she was last seen
by PW3 who is the sole eye-witness in the case. According to the witness statement, he was
present in the general compartment, which is right behind the ladies compartment where the
victim was present. On hearing the loud screams of a female, he pulled the chain and went in
to rescue her. Unfortunately, before he could reach it, he saw the victim getting thrown out of
the compartment by the accused who also jumped off the moving train in the jungle area near
Girpur. He also found out blood and torn women’s clothing pieces in the same place.

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In this case, where one of the primary reasons for murder is physical attacks and assault, the
witness did not actually see the accused’s face as everything happened in the blink of an eye
but identified the fact that the accused is a medium-bodied male who tried to grope and hit
her. Later upon the investigation in the Test Identification Parade, the witness identified the
accused to be the same person she saw jumping off the train. In Karunakaran v. State of
Tamil Nadu and Sadhuram v. State of Rajasthan, wherein it had held that if a witness is
absolutely reliable then conviction based upon their testimony cannot be said to be infirm. In
this case, the sole eyewitness statement cannot be rejected in the framing of charges and order
of a trial for fair and square justice. Thus, the evidence of the eyewitness is credible enough
and conviction is to be upheld.

4 days prior to the date of the incident on 26 th February PW2 was catcalled by the accused
and sexually harassed at Girpur Bus Stop in the presence of the deceased and both were
threatened with dire consequences for their life if they attempted to report the matter to the
police but the same day, they filed an FIR against the accused. In Mahender Chawla & Ors
v. Union of India & ors, it was held that when an incident happened in a public area it itself
is a witness and one one credible witness is sufficient to support that. It is sufficient to prove
both the presence of the public as a bus stop is a public arena and the motive of the crime.

The presence of an expert witness, Dr. Priya Ghosh the forensic expert who conducted the
post-mortem report. The post-mortem report becomes important in cases where the cause of
death is to be established and is a matter of controversy. In understanding the intricacies of
the post-mortem report, injuries that primarily resulted in the death were first, there is a
fissured fracture on the floor of the left side of the anterior cranial fossa along with a
traumatic disruption of the stem of the pituitary gland and left frontal lobe of the brain which
showed multiple areas of hemorrhage which is caused out of the hitting of the victim’s head
against a flat surface like a wall. This proves the statement given by the eyewitness and the
blood stains on the compartment walls, floor establish beyond reasonable doubt how the
accused caused the death of the deceased. The second injury was, the aspiration of a
considerable amount of blood resulting in anoxic brain damage, arising out of committing
rape in the supine position. Thus, both offense is proven to be committed as it builds a
consensus between the injuries incurred and the action of the accused.

DNA samples collected from the crime scene were matched by that of the accused. The
fingernail scratches were found on the body of the accused when they arrested him and have

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been mentioned in the arrest memo. Also, the fingernail skin cells of the deceased were
matched with that of the accused. The coincidental scratches prove beyond reasonable doubt
that it is the accused himself who committed the offense.

1.2 There is a well-established chain of events against the accused beyond reasonable
doubt.

In this case, a comprehensive range of circumstantial evidence has been gathered, each piece
contributing to the establishment of the accused involvement and bringing light to his guilt in
the murder and rape of the victim. It started four days prior to the day the incident occurred
the accused threatened the deceased along with her friend PW2 with dire consequences of life
if they filed an FIR against him but they filed it instead.

1st March 2023 the deceased was assaulted in an empty women’s compartment with the sole
eye-witness PW3 from the adjacent compartment witnessing the deceased being thrown out
of the train and a medium-bodied male jumping off and running off into the jungle. When a
Test Identification Parade was conducted the witness identified the accused.

Traces of blood, skin cells from the scratches of the accused, and semen were recovered from
the crime scene and the victim's body and tested and matched with that of the accused
himself. During and aftermath arrest in the arrest memo, coincidental scratch marks and
injuries were found on the body of the accused.

1.3 The accused had a clear motive for the crime

As established earlier four days prior to the day the incident occurred the accused threatened
the deceased along with her friend PW2 with dire consequences of life if they filed an FIR
against him but they filed it instead. This proves the guilty mind, intention, and motive of
committing a crime against the deceased. The close proximities of the dates suggest beyond
reasonable doubt that the nature of the accused firstly sexually harassing them at the bus stop
to raping the deceased it is indeed the accused himself who committed this heinous offense. If
he did not have a motive and he did not commit the offence then the prosecutor seeks to
clarify why he was absconding and found 8 days after in an abandoned warehouse.

1.4 The questionable character of the accused

Character witnesses can testify about the accused's character and reputation in the
community. The accused is known for being violent and having a bad moral character, this

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can be substantiated by the Arrest memo where the accused has an alias name “Rocky the
Terror.” This evidence presents to argue that he was likely to commit such a crime
intentionally. The accused Vivek Mitra a 25-year-old is a habitual offender who was
previously convicted by the courts had attempted street sexual harassment of PW2 the friend
of the deceased in the presence of the deceased herself. He was dangerous, had past criminal
records, likely to escape according to police reports.

1.5 Emphasis on a trial considering the public interest

In cases involving heinous crimes like rape and murder, it is in the public interest to ensure a
thorough examination of the evidence in a trial, rather than discharging the accused
prematurely. Emphasizing the seriousness of the issue and the charges applied need for full
trial is a must to determine the truth.

Thus, the prosecutor seeks the hon’ble court to frame the charges under Section 228 of [Link]
and allow a fair and just trial.

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2. ARE THERE SUFFECIENT GROUNDS FOR FRAMING OF

CHARGES AGAINST THE ACCUSED?

It is humbly contended that there is presence of sufficient grounds for framing of charges
against Mr. Vivek Mitra, the accused. The grounds on which charges can be framed against
the accused in this particular act are stated as follows-
i. Murder
ii. Rape
The pre-requisite and the charge of murder will be be dealt in the sub-issue 1.1, while the
charge of Rape will be proved in subsequent sub-issue 1.2.

2.1 The accused committed Murder.

It is humbly submitted that the accused is guilty of violating Section 302 of the IPC by
committing the offence of murder. The penalty for murder is outlined in Section 302. But in
order to successfully prosecute this accusation, it is necessary to make reference to Section
300 of the IPC, which defines the fundamentals of murder.

A person is guilty of murder if he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in the ordinary course of nature results into death or commits an act so dangerous that
it must, in all probability cause death of that person 1 . The Prosecution humbly contends that
both, the actus reus [2.1.1] and the mens rea [2.1.2] of the crime are established in the instant
matter, negating any claims of private defence.

2.1.1 ACTUS REUS of the murder is proven:

Actus reus is any wrongful act2. Thus, in a case of murder, actus reus would be the physical
conduct of the accused that causes death of the victim. In the instant case, the actus reus is
established by way of witness statements [A], Arrest Memo [B], Autopsy Report[C] and
Chargesheet [D].
1
Sec 300, IPC
2
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006)

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A. Witness Statements
Bearing in mind that it is not for the prosecution to meet any and every hypothesis suggested
by the accused, howsoever extravagant and fanciful it might be 3 it is humbly submitted before
this Hon’ble Court that the circumstantial evidence in the instant matter shows that within all
human probability, the act must have been done by the accused.
On the night of 1st March, the victim was returning home in a train where she was last seen by
PW3 who is the sole key-witness in the case. According to the confessional statement of
PW3, he was present in the general compartment, which is right behind the ladies
compartment where the victim was present. On hearing loud screams of a female, he pulled
the chain and went in to rescue. Unfortunately, before he could reach, he saw the victim
getting thrown out of the compartment by the accused who also jumped off the moving train
in the jungle area near girpur. He also found out blood and torn women’s clothing pieces in
the same place.

In a case where one of the primary reasons for murder is physical attacks and assault, the
witness did not actually see the accused’s face as everything happened at the blink of an eye,
but definitely identified the fact that the accused is a medium sized male who tried to grope
and hit her. Later upon the investigation, a shirt button of the same accused was found in the
same spot.

In this case, additionally taking an account of the Doctrine of Last seen, it can be inferred that
the accused is the person who was engaged in the murder because he was the only one who
was last seen with the victim prior to the incident. As a result, charges can be brought against
him.

Thus, the evidence should be held to be as good as that of eye witnesses and conviction is to
be upheld.

B. Arrest Memo
An arrest memo is an important document to show that the accused is arrested and the
property is seized from the place of occurrence 4. The court of law has time and again, in

3
State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840
4
Sathyan v. State of Kerala [(2015) 1 KLT 586 and in Ramankutty v. Excise Inspector, Chalannur Range [2013
(3) KHC 308]

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several cases has observed that the arrest memo is necessary in criminal cases. Therefore, the
arrest memo in the present case should be taken into consideration while proving the
accused’s guilt5. Point 7 of the same implies that the offender was physically fit when he was
apprehended from his concealment spot. However, his entire body was inspected for bruises
and nail scratches. This expressly alludes to a physical altercation he had with a person who
has long nails, typically a female. The Hon’ble Court should notice that a similar event, in
which the accused physically assaulted the victim, likewise took place during the current
incident. Thus, in every aspect, this suggests that the accused who is apprehended is guilty.

C. Autopsy report
The post-mortem report becomes important in cases where the cause of death is to be
established and is a matter of controversy 6. Moreover, it is not possible for the Prosecution to
explain each and every injury suffered by the witnesses 7. However, for the sake of
convenience, the Prosecution feels obliged to assist this Hon’ble Court in understanding the
intricacies of the post-mortem report.
Injuries which primarily resulted in the death:- According to the post-mortem report8, 20
grievous injuries were found in the upper body. There was also the presence of a fissured
fracture on the floor of left side of the anterior cranial fossa along with a traumatic disruption
of the stem of the pituitary gland and left frontal lobe of the brain which showed multiple
areas of hemorrhage which caused out of the hitting of the victim’s head against a flat surface
like a wall. This proves the statement given by the key- witness, i.e., the fact that he saw the
victim’s head getting smashed against the wall.

2.1.2 MENS REA of the murder is established:

Mens rea is defined as having the intention to commit a crime 9, which can be established or
implied from the accused's actions 10. It is argued that given the accused's [B] obvious motive,
the intention to murder [A] is proven. Argumentatively, the case can not be dismissed for
lack of motive.

A. The Accused had intention to kill

5
Exhibit B
6
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883
7
Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461
8
Exhibit D
9
Commissioner of Income Tax v Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
10
State of Maharashtra v Meyer Hans George, AIR 1965 SC 722

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Every sane person is assumed to intend the outcome of his or her action typically, so if a
person hits another individual in a vulnerable area of the body and that person dies as a result,
the accused can only have intended to kill the victim, and the act was therefore murder 11.
Furthermore, a conviction under section 302 of the IPC does not always need the presence of
a purpose to murder; rather, it only requires knowledge that the natural and usual result of a
certain action would be death12. In the present scenario, the murder and the type of injuries
the victim sustained can be used to infer the killer's intent to kill 13. Given the fact that the
victim incurred 20 grievous injuries in the upper body due to which it succumbed to death,
clearly denotes the fact that the only intent of the accused here was to kill. Thus, it is logical
to conclude that he intended to cause the death of the victim.

B. The Accused had a motive to kill

According to Section 8 of the Evidence Act14, any fact that demonstrates or qualifies as
preparation for a significant fact or fact in dispute is relevant. As a result, prior threats or
altercations between parties are acknowledged as evidence of motivation 15. In the present
case, as per the statement of PW2, the accused had previously cat-called and tried to force
himself on her when the victim took a stand and objected to his street sexual harassment. He
had threatened them saying that if they complained to the police, things were going to get
worse because he knew that they travel on this route. Thus, it is logical to conclude that the
accused did this as retaliation against the victim for refusing to comply with his commands
since the PW2 and the witness did not fear his words and filed a police report.
Moreover, it can be derived from the Arrest Memo 16 clearly that at the time of the arrest, he
was evading the police and absconding after the incident. It is to be noted here that
the value of abscondence depends on the facts of each case although it is ordinarily
admitted by the court as evidence of guilt17. It is therefore plausible that the accused had an
ulterior motive for murder after taking into account all the evidence that he had made a prior
threat and was fleeing after the entire situation.

2.2 The accused committed Rape

11
(1951) 3 Pepsu LR 635
12
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
13
Laxman v. State of Maharashtra, AIR 1974 SC 1803
14
S. 8, Indian Evidence Act, 1872
15
Son Lal v State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v State of WB, AIR 1958 Cal 482
16
Exhibit B
17
62 IC 545. Ganga Ram v. Emp

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It is most humbly submitted before this Hon’ble Court that the accused is guilty of the
offence of Rape as as he had forcible sexual intercourse with the Victim.
A man is said to commit “rape” who has sexual intercourse with a woman under the
circumstances falling under any of the six following descriptions18:-
First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person
in whom she is interested in fear of death or of hurt.
Fourthly: With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly: With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly: With or without her consent, when sixteen years of age19.

In the present case, the accused is guilty of the offense of rape which is established by the A.
Autopsy Report B. Chargesheet C. Statement of I.O.
A. Autopsy Report
The presence of injuries on the body can be used to support or refute a complainant's version
of events in a clinical environment, it might serve as the only clue to what happened at the
time of death during an autopsy. Even minor wounds may be important in both cases20.
In the present case, there are 20 grevious injuries in the upper body and the head of the
victim. Along with the same, one of the major causes of death is the aspiration of a
considerable amount of blood which resulted in anoxic brain damage, arising out of the
commission of rape in a supine position. Considering the high evidentiary value of an
Autopsy report, it can be logically concluded that the victim was raped and as a result of such
forceful intercourse, she died.

B. Chargesheet
18
Section 375, IPC
19

20
Crane J. Interpretation of non-genital injuries in sexual assault. Best Pract Res Clin Obstet Gynaecol. 2013.
February; 27(1):103–11. PMID: 23200739 10.1016/[Link].2012.08.009. [PubMed] [CrossRef]

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Only after gathering adequate evidence against the accused for the offenses listed in the FIR
can the police or law enforcement/investigative agency file a chargesheet 21. A chargesheet is
comprised of detailed evidence upon investigations and is frequently used in court to support
the charges against the accused.
Taking the evidentiary value of the chargesheet to corroborate the current instance it is to be
noted that when the victim's body was found at the murder site, semen was prominently
visible on her clothing and vulva in addition to the blood which clearly indicates the
occurrence of the heinous crime of Rape which was later on confirmed by the autopsy report.
Since this whole situation took place during the physical assault taking place between the
victim and accused, and since there was no third-party present in this scenario, it can be
analytically submitted that Rape is committed by the accused for which charges should be
framed by this Hon’ble Court.

C. Statement of the Investigating Officer

When Mr. Alok informed him of the incident on March 1st, 2023, he and his team
immediately headed in the direction of the place of occurrence. There, they found the victim
lying in a pool of blood with her garments visibly ripped in an attempt at rape. The autopsy
report eventually verified that this attempted rape was indeed what happened.

Therefore, in light of all the available evidence, the prosecution consequently contends that
the accused committed rape, and that this Hon’ble court should accordingly file charges.

21
Section 173(2) of the CrPC

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3. CAN THE ACCUSED BE ACQUITTED FROM THE CHARGE OF S. 302 DUE TO

LACK OF MENS REA?
In the current instance, it is respectfully claimed before this Hon'ble court that the accused
cannot be acquitted of the charge under Section 302, considering that the element of Mens
Rea is present.
This can be established in the following way: -
3.1 The accused had previously threatened the victim:
Any conduct that is judged criminal must have a mens rea. The Latin maxim "actus non facit
reum nisi mens sit rea," which means "the act does not make one guilty unless the thought
also is guilty," captures the essence of the mens rea principle. Simply doing a criminal act or
creating a situation that the law forbids is inadequate to establish guilt, at least in the case of
the more serious offenses22. For a crime to be effective, it requires the criminal to have
"intention" to do injury to the victim's person, property, or reputation.
When examining the mens rea component of the offense, it is also observed that what is
relevant in evaluating the existence or absence of purpose to create fear is 'whether the threat
was sufficient to overpower a man of ordinary nerves'23.
It can be better understood by referring to the case of Sunil Shetty Chairman of Popcorn
Entertainment P. Ltd. v. Puran Chauhan and Anr. (2017) 24. In this case, the Court stated that
the act of threatening is generally done with the aim to create anxiety to the complainant, and
is adequate evidence for mens rea.
In this case, the court must consider that the accused was previously acquainted with the
victim, which corroborates the testimony of PW1 and PW4, as well as the fundamental facts
of the case. When the PW4 and the victim were on their way home from college one day, he
purposely cat-called and harassed the victim's friend, the PW4. During this incident, the
victim takes a stand against the wrongdoing. This is when the accused willingly threatened
the victim and PW4 with serious consequences if they reported the incident to the police. The
proper words to use here were "Loss of Limb and Life."

22
C.K. Jaffer Sharief vs State (Thr C.B.I.) (2012)
23
Amulya Behera v Nabaghana
24
Sunil Shetty Chairman of Popcorn Entertainment P. Ltd. v. Puran Chauhan and Anr. (2017)

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This statement made by the accused clearly denotes that the threat was sufficient to
overpower a man of ordinary nerves. Despite the threat, both of the girls later filed a police
complaint against the accused in seeking redress. When brought up with the sequence of
occurrences, the accused, who was an arrogant, gruff, and hot-headed person 25 who was
offended by the victim's deed, went on to seek revenge on the victim, resulting in the current
occurrence. Thus, his threat against the victim is proof of criminal intent or mens rea, so he
should not be acquitted.

3.2 The accused had the knowledge that death was likely to occur.
The accused's conduct in this case directly indicate that he knew and believed with absolute
certainty that his actions would cause the victim's death. This is demonstrated in two ways:
First of all, the victim's loud thuds were heard apart from her sobs and screams by the case's
solitary key witness, i.e., PW326. He additionally witnessed the scene when the offender
threw the witness out of the compartment of a speeding train. This makes it clear that the
accused, who is a sane, mature person, had the capacity to recognize the serious
repercussions of his actions to understand that it would almost certainly result in death.
Secondly, the autopsy report27 indicates that the woman suffered 20 severe injuries, including
severe head and pelvic abrasions, which were the primary contributing factors in her demise.
Any sane adult would understand that his actions would result in death if they were to cause
such severe harm. Consequently, it demonstrates once again that the accused was aware that
death would probably ensue from his acts.

Therefore, it is logical to conclude from the stated evidence and facts that the accused in the
present case had the criminal intent or mens rea for the commission of the offence and thus,
should not be acquitted from the charge of Section 302 of IPC.

25
Exhibit B
26
Exhibit C
27
Exhibit D

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4. WHETHER CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION IS

SUFFICIENT TO CONVICT THE ACCUSED FOR A CHARGE OF MURDER?

It is humbly contended in front of the Honourable Sessions Court of Girpur that in the present
case, the circumstantial evidence and expert opinion is sufficiently convicts Mr. Vivek Mitra
(Hereinafter referred to as the accused) for the charge of murder and also for rape of the
victim.

The chain of circumstantial evidence and the expert opinion presented in this case leaves no
room for doubt regarding the accused's culpability, and this will be explained as given below

4.1. Chain of Circumstantial Evidence

Circumstantial evidence refers to evidence that does not directly prove a fact in question but
allows an inference or conclusion to be drawn about that fact based on a chain of related
circumstances and facts. In other words, any circumstance, which destroys the presumption
of innocence, can be taken in account to find out if the circumstances lead to no other
inferences than that of guilt28.

In the case of Govind Reddy v. State of Mysore29, it was stated that “It is well to remember
that in cases where the evidence is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should, in the first instance, be fully established, and all
the facts so established should be consistent only with the hypothesis of the guilt of the
accused”.

In the case of Sharad Birdhichand Sarda v. State of Maharashtra 30, the court established
five crucial principles for the proof of a case based on Chain of circumstantial evidence:

i. The circumstances leading to the conclusion of guilt must be fully established. There is a
legal distinction between 'may be proved' and 'must be proved.' The accused must be
proven guilty beyond a reasonable doubt.

28
U.L. Bhat, Relevancy Proof and Evaluation of Evidence in Criminal Cases (LexisNexis, 2018)
29
Govind Reddy v. State of Mysore,1960 AIR SC 291960 CRI LJ 1371960 CRLJ SC 1371960 CRLJ 137
30
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116

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ii. The established facts should be consistent only with the hypothesis of the accused's guilt
and should not be explainable by any other hypothesis.
iii. The circumstances should be conclusive in nature.
iv. They should rule out every possible hypothesis except the guilt of the accused.
v. There must be a complete chain of evidence that leaves no reasonable doubt about the
accused's guilt and demonstrates that, in all likelihood, the act was committed by the
accused.

With reference to the above stated cases, the Chain of evidence must be established and be
complete in nature in a manner, where there is no reasonable ground to doubt accused’s guilt
and is consistent with the conclusion where the accused is not found innocent.

In this case, a comprehensive range of circumstantial evidence has been gathered, each piece
contributing to the establishment of the accused involvement and bringing light to his guilt in
the murder and rape of the victim. The following is a detailed account of the circumstantial
evidence along with explanations of how each piece links the accused to the crime:

i. Discovery of Unconscious Victim: On the night of the incident, Victim was

discovered in an unconscious state near Girpur Railway Station, and to
corroborate that there is an eye-witness, Mr. Alok that saw her being thrown out of
the train carriage, close to when the train was about to reach Girpur Railway
Station.
ii. Presence of Semen: Forensic analysis of the victim's body and clothes revealed
the presence of semen. This crucial evidence directly links the accused to the
sexual assault on the victim. DNA analysis conducted has confirmed that the
semen matched Accused’s DNA profile, which leaves no room for doubt about his
involvement in this hideous crime.
iii. Fingernail Scratch Marks: During the victim's autopsy, significant scratch marks
were discovered under her fingernails. These marks strongly indicate a struggle
between the victim and her assailant. Subsequent analysis found skin cells and
blood under the victim's fingernails, which were a DNA match to the accused.
This evidence establishes that the victim fought against her attacker, and the
accused's DNA under her nails directly implicates him.
iv. Eyewitness Testimony: PW3: A pivotal piece of evidence is the testimony of PW3,
an eyewitness. He testified that on the night of the incident, he heard screams

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coming from the direction of the railway tracks and saw Mr. Vivek Mitra fleeing
the scene, who he also identified during Test Identification Parade. This
eyewitness account directly links the accused to the location of the crime and
places him at the scene just before the victim was found unconscious.
v. Absconding of the Accused: When the police tried bringing the accused under
custody, the accused tried to abscond. The accused's attempt to abscond should be
viewed as an additional piece of evidence. Absconding in itself might not have
significant evidence. But coupled with the above circumstantial evidences, It
signifies his consciousness of wrongdoing and showcases this guilt-conscious that
he is responsible for the crimes charges against him.
vi. Presence of Motive: Victim and her friend were harassed by the accused on an
earlier date, where they were threatened by the accused that he would cause harm
to them if they went to police and filed a complaint. And following through his
threat he did cause grievous harm to the victim that resulted into her death.
Victim’s friend PW2has also identified the accused during Test Identification
Parade.

These evidences when viewed singularly might not seem a very significant. But when looked
at collectively, these pieces of circumstantial evidence form a compelling and interconnected
chain of evidences that leaves no reasonable doubt about Accused’s culpability in the alleged
murder and rape of victim.

4.2 Expert’s Opinion

Section 45 of the Indian Evidence Act, 1872 defines “Expert”

“When the Court has to form an opinion upon a point of foreign law or of

science, or art, or as to identity of handwriting, [or finger impressions], the opinions upon
that point of persons especially skilled in such foreign law, science or art, [or in questions as
to identity of handwriting] [or finger impressions] are relevant facts.

Such persons are called experts.”

And in the case of Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors 31, the court set
some requirements for considering an expert's view. The following criteria apply:

i. The expert's area of knowledge must be widely accepted.

31
Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors, 2010 AIR SC 806 2009

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ii. An opinion must adhere to trustworthy principles,

iii. Experts must possess the necessary credentials.

In the present case Dr. Priya Ghosh will be considered a expert, since she fulfils all the
requirements. She is the forensic surgeon who conducted the autopsy on the victim’s body
after her death. During the post-mortem examination, Dr. Priya Ghosh made several critical
observations that shed light on the nature of the crime and its alignment with the accused's
actions:

 Head Injuries: It was noted that there are significant head injuries on the victim's
body, including a fracture of the skull. These injuries are consistent with a violent and
forceful assault, implicating the accused in a brutal attack on the victim.
 Evidence of Sexual Assault: The examination revealed traces of semen on the victim's
body and clothes, confirming sexual assault. This finding corroborates the charges of
murder and rape against the accused.

In the case of Dayal Singh and Others v. State of Uttaranchal 32, the Court made important
observations of the importance of expert opinion and also identified the purpose of expert
testimony is merely to provide the trier of fact with useful or relevant information, but the
testimony does not make it binding to the court.

The expert’s opinion on the injuries sustained by the victim directly corresponds to the
alleged actions of the accused and the circumstantial evidence gathered. Dr. Priya Ghosh
concluded that the primary cause of death was the severe head injuries sustained during the
attack.

This expert opinion substantiates the murder charge against the accused, as it links his actions
and the chain of evidence gathered. All the circumstantial evidence and the expert opinions
corroborate bring life to the actual happenings of that unfortunate night with the victim.

In the judgment of the State of Himachal Pradesh vs Jai Lal and Ors 33, the duty of an expert
was highlighted, and the duty is to provide the judge with scientific criteria to assess the
accuracy of their expert conclusions. Experts are expected to enable the judge to form an
independent judgment based on their specialized knowledge.

32
Dayal Singh and Others v. State of Uttaranchal (2012) 8 SCC 263
33
State of Himachal Pradesh v. Jai Lal and Others (1999) 7 SCC 280

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The chain of circumstantial evidence meticulously built in this case, along with the
compelling expert opinion, leaves no room for doubt regarding the guilt of the accused, in the
tragic events of murder and rape.

The principles of corroboration are vividly exemplified throughout this trial. The principle of
corroboration in Indian evidence law refers to the requirement of supporting evidence to
confirm the testimony of a witness, especially in cases involving certain types of evidence
like that of an accomplice or in cases of sexual offenses. Corroboration serves as a safeguard
against false or unreliable testimony.

The combination of circumstantial evidence and expert opinion provides more than sufficient
grounds to convict Mr. Vivek Mitra of the charges of murder and rape.

It is, therefore, respectfully urged before this Hon’ble Sessions Court of Girpur that justice
necessitates the conviction of the accused based on the evidence that points unequivocally to
his involvement in these crimes and to punish him accordingly.

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5. WHETHER THE OFFENSE COMMITTED BY THE ACCUSED TANTAMOUNT

TO THE RAREST OF RARE CASES AND SHOULD BE TRIED IN A FAST-TRACK
COURT?

It is Humbly contented in front of the Hon’ble Court of Girpur that the offense committed by
the accused does fall under the category of rarest of rare and should be tried in a fast-track
court so that the victim and her family be served justice for the heinous crime committed
against her and the whole society in the larger picture.

The Crimes committed by the accused not only caused the unfair and early death of a young
girl, who had a bright future ahead but also endangered the society at large with this brutal
and undeserving crime against the victim.

5.1 The Rarest of Rare Doctrine.

The "rarest of rare" doctrine is a legal principle that signifies cases where the nature and
circumstances of the crime are so gruesome, brutal, and shocking that they shock the
collective conscience of society. Such cases demand swift and exemplary justice to send a
strong message that such heinous acts will not be tolerated.

In the Macchi Singh case34, the court established criteria for identifying the "rarest of rare"
cases. These criteria help assess the gravity of a crime. Here is a concise breakdown:

 Heinous Acts: When a murder is committed in an excessively brutal, shocking, or

inhuman manner that deeply outrages society. Examples include burning someone
alive in their home, subjecting the victim to extreme torture, or mutilating the body.
 Unlawful Motives: When the motive behind the murder reflects total depravity and
cruelty, such as hired killers committing murder solely for financial gain or
meticulously planned murders for personal profit.
 Socially Abhorrent Crimes: Cases involving the murder of marginalized individuals,
like those from backward classes, or infamous crimes like dowry deaths.
 Massive Scale: When the crime is of substantial magnitude, especially in cases of
multiple murders.

34
Macchi Singh v. State of Punjab, AIR 1983 SC 1957

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 Victim's Profile: When the victim is particularly vulnerable or holds significance in

society, such as innocent children, defenseless women, elderly individuals, or public
figures.

These criteria help determine whether a case falls into the category of the "rarest of rare,"
indicating an exceptionally grave and heinous crime.

Keeping note of these criteria established in the above-stated case, in the present case these
guidelines are being fulfilled.

The rape and murder committed on the girl was heinous and excessively cruel. This can be
backed up by the condition of the crime scene, which was stated in the witness statement of
Mr. Alok, the single witness of this gruesome crime.

It mentions how saw blood stains on the compartment walls and exit doors when he rushed
into the crime scene. Blood stains were also there on the floor of the compartment along with
torn pieces of female clothing.

The crime scene and the condition in which the victim was found clearly shows the
excessively brutal crime committed against her.

In the present case, the motive behind this gruesome murder and rape of the victim can be
understood by going back a few days to date when the accused harassed the victim and her
friend and also threatened them not to go to the police.
But not succumbing to the fear of the accused, they did go to the police. Which sets the
motive of the accused to commit such a crime. And even though this is just one case, if not
stopped now it could lead to a series of crimes of similar nature.

The Victim here was a helpless girl traveling alone at night. She was attacked when she was
defenseless, which is not just heinous but also raises concerns for society at large.
This case unequivocally falls within the "rarest of rare" category. The rape and murder were
marked by extreme brutality, witnessed through the gruesome crime scene. The motive,
driven by prior harassment and threats, exemplifies profound cruelty.

The vulnerability of the victim, a lone young girl traveling at night, magnifies the gravity of
the crime, raising concerns for society. Given these factors, swift and decisive action is
imperative, in line with the "rarest of rare" doctrine, to convey that such heinous acts will not
be tolerated.

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5.2. Fast Track Court

Fast-Track Courts deal with specific offenses like sexual offenses, cheque dishonor, etc., in a
short period of time. They expeditiously dispose of cases and help in clearing the immense
backlog in the Indian judiciary. A fast-track court ensures that justice is delivered promptly,
providing closure to the victim's family and acting as a deterrent to potential offenders.

In the case of Govindswamy v. State of Kerala35, a similar rape and murder case was being
dealt with. And in this case, the case was to be put through Thrissur fast-track court for its
trial.

Similarly in the present case as well for the benefit of the Justice of this young girl, the case
should be tried in a fast-track court. The delay in delivering justice in such cases can cause
immense suffering to the victim's family and erode public faith in the legal system.

The heinous nature of the offenses committed by the accused warrants a strong deterrent
message to society. Trying this case in a fast-track court will send a clear signal that such
crimes will not be tolerated, and perpetrators will face swift and severe consequences.

It is, therefore, respectfully contented before this Hon’ble Sessions Court of Girpur that for
the justice to be rightfully served the offense committed by the accused tantamount to the
rarest of rare case and should be tried in a fast-track court.

35
Govind Swamy v. State of Kerla, Crl. [Link]. 1584-1585 of 2014

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PRAYER

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

Hon ‘ble Court be pleased to:

6. Declare that the application for discharge of accused is maintainable.

7. Declare that there are sufficient grounds for framing of charges against the accused.
8. Declare that the accused cannot be acquitted of the charge under Section 302,
considering that the element of Mens Rea is present.
9. Declare that circumstantial evidence and expert opinion is sufficient to convict the
accused for charge of murder.
10. Declare that the offence committed by the accused tantamount to the rarest of rare
case and should be tried in a fast-track court.

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

All of which is most humbly and respectfully submitted

Counsel for the Prosecution

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