KAMKUS COLLEGE OF LAW

LL.B. VITH SEM.

Moot Court, Pre-Trial Preparation &
Participation in Trial Proceeding
[Code- K-6008]

INDEX
S. No. Particulars Page
No.

1. INTRODUCTION
a. What is Moot Court?
b. Difference between moot court and
original court.
c. Steps involve in moot court.

2. CIVIL CASE PROCEEDING-1

3. CIVIL CASE PROCEEDING-2
4. CRIMINAL CASE PROCEEDING-1
5. CRIMINAL CASE PROCEEDING-2
6. ONE INTERVIEWING SESSION- CIVIL MATTER
7. ONE INTERVIEWING SESSION- CRIMINAL MATTER

1
What is Moot Court?
Moot court is an artificially created arrangement with a get up similar to a real court
where student advocates argue hypothetical cases. The moot problems are mostly based on
actual cases with some modification. It looks like a real court where 3 judges will listen to you
while you present your case, after you finish, they start bombarding you with thousands of
questions.

There are 2 mooters one is counsel and other is co-counsel, and there are 2 researchers
who should know all the relevant laws and cases related to the case. Mooter is an orator but the
actual research is done by researcher. Researcher prepares the things to be presented after doing
a lot of research work and mooter presents it before the judge.

In India the mooting culture started when Bar Council of India organized the Bar council of
India moot court in the year 1981. In 1985 learning through moot court became an integrated
feature of Indian legal education. And from that time, mooting culture is being followed by
Indian law institutes.

Difference between moot court and original court

Moot Court Real Court

1. A moot court is an artificial court Whereas a real court is always establish by
prepares for the law students. an Act and is created by judicial process.
2. In a moot court the students have to Whereas in a real court the filings, arguments
argue on the law point only. are done as per the law and procedural rules.
3. In a moot court only arguments are held
Whereas in a court the Judgment is finally
and no judgment will be delivered. delivered on the basis of facts and
circumstances.
4. There is no such provision or strict In a real court if there is a misconduct on the
appliance of the rules. part of an Advocate he can be tried for
contempt of court

2
 STAGES OF MOOT COURT.

 Formulation of the problem

The formulation of the problem of the first stage of the moot court generally the problem is
taken for the periodical journals that are the decided cases by the High Court or the Supreme
Court, but a hypnotically problem may be taken as moot court problem.

 Students Participation
The Students are interested the duties to act an advocate for both the sides to argue the
matter.

 Appointment of Judges
Judges are generally from the faculty or the persons having a minimum knowledge of law.

 Students Actual Presentation of Case

This is very important part of the moot court the Students / mooters bear in the mind that they
are presenting the matter before the court. They should properly in dress. The manner of
presentation gives the additional wattage at the time of argument the mooters should follow
the manner and antiquates to the fullest extent.

 Question & Answer Stage

After completion of the both sides the judges questions the mooters on the law point. The
various specific provisions of the law, the authorities etc.

 Conclusion and Recommendation

There is no final Judgment in the moot court. After the question answer session if it is not
part of competition then the mistake made by the mooters giving the presentation can be
detected and notice to the students to correct it for the next presentation.

3
 MOOT-COURT
CIVIL CASE PROCEEDING -1

The District Court of Senior Civil Judge, Delhi.

K. D. Parmanand Pvt. Ltd…………………………… (Plaintiff)
V.
Jiveeni Pvt. Ltd…………………………………… (Defendant)

Case concerning with Breach of Contract and related issues.

(Submitted in the Registry of the District Court.)

Memorial on behalf of the Plaintiff.

TABLE OF CONTENT

INDEX OF AUTHORITIES...............................................................
STATEMENT OF JURISDICTION...................................................
STATEMENT OF FACTS..................................................................
ISSUES RAISED.................................................................................
SUMMARY OF ARGUEMENTS.......................................................
ARGUEMENTS ADVANCED...........................................................

4
 INDEX OF AUTHORITIES

STATUTES
1. The Indian Contract Act 1872
2. The Sale of Goods Act 1930

PRECEDENTS:
S. No. Name of the Cases and Case Citation Page No.

1. Mam Trading Co. Ltd. v. Adamjee Jute Mills Ltd. 24 BLD (HCD )
2004
2. Chitranji Lal Ram Partnership firm v. Chandgi Ram Kundan Lal
and Co. AIR 1967 Del 158.
3. Bengal Corporation Pvt. Ltd. v. The Comissioners for the port of
Calcutta AIR 1971 Cal 357.
4. Zodiac Clothing Company Ltd. v. Trimurthi Plastics 2013 SCC
online Kar 6595
5. Kwality Manufacturing Corporation v. Central Warehousing
Corporation 2009 5 SCC 142
6. Oil Natural Gas Ltd. v. Offshore Enterprise Ltd. (2011) 14 SCC 147
7. Karsandas H. Thacker v. Saran Engg. Co. Ltd. AIR 1965 SC 1981

8. Shanti Devi v. Bhojpur Rohtas Gramin Bank, AIR 2007 DOC 102
(NCC).
9. Hadley v. Baxendale (1843-60) All ER Rep 461.

BOOKS:

5
 1. Avtar Singh – Sale of Goods Act
2. Dr. S.K. Kapoor - Partnership Act & Sale of Goods Act.
3. R.K Bangia – Business Law
4. Avtar Singh – Contract and Specific Relief
5. Contracts of International Sale of Goods.

WEBSITES:
1. [Link]
2. [Link]
3. [Link]
4. [Link]
5. [Link]

STATEMENT OF JURISDICTION

The Plaintiff humbly submits this memorandum for the suit filed before this Honorable
Court. The suit concerning “breach of contract and related issues” is filed in the
Court of the Senior Civil Judge in accordance with the Section 6, Section 9 and
Section 20 of the Civil Procedural Code; the Court has the jurisdiction to decide all
the matters referred to it for decision. Both the parties shall accept the Court’s
decision as final and binding and execute in good faith.

6
 STATEMENT OF FACTS

1. A Company “K.D.” in the name of K. D. Parmanand Pvt. Ltd. operates in ladies

ware. It earned huge profits over the years and eventually decided to expand its business
by introducing a number of varieties in kids wear.

2. In order to achieve the above objective, they approached the Jiveeni Pvt. Ltd., a
large manufacturer of garments in kids wears garments. “K D” entered into a contract
for the purchase of kids wear garments. The contract price was Rs.6, 00,000 / and both
the parties agreed upon a payment schedule. K.D. Parmanand Pvt. Ltd agreed to pay
Rs.4, 00,000/ partially upon the delivery of kids wear clothes on 1st January 2017 and a
full and final payment of Rs.2, 00,000 on 1st March 2017.

3. Jiveeni Pvt. Ltd delivered the garments to K. D. Parmanand Pvt. Ltd. on the agreed
date i.e. 1st January 2017 as per the contract. However, shortly after taking the delivery
of the clothes, K. D. Parmanand Pvt. Ltd. looses a profitable contract with its large
booking agents which resulted in a significant down in the demand for their kids wear
garments. Jiveeni Pvt. Ltd. was also suffering from financial difficulties due to a number
of legal actions brought against it.

4. It was realized by Jiveeni Pvt. Ltd. that K.D. Parmanand Pvt. Ltd. would be unable
to pay the remaining amount of Rs.2,00,000 on 1st March 2017, Jiveeni Pvt. Ltd. agreed
to accept Rs. 50,000 in full satisfaction of the debt. K.D Parmanand Pvt. Ltd. duly paid
such amount on 1st March 2017.

5. On 3rd March 2017 Jiveeni Pvt. Ltd delivered the rest of the clothes to K.D
Parmanand Pvt. Ltd.

7
6. On delivery it was found that the clothes were of poor quality. On 4th March a
notice was sent to the Jiveeni Pvt. Ltd., to exchange the clothes .the notice was
acknowledged and accepted by Jiveeni Pvt. Ltd. However, no exchange took place. On
20th march second notice was sent which was neither acknowledged nor replied.

7. Hence K.D Parmanand Pvt. Ltd. filed a suit against Jiveeni Pvt. Ltd. and claims
Rs. 1, 50,000 for breach of contract. Jiveeni Pvt. Ltd. contended that it was not bound to
pay the amount claimed in the suit because the clothes were of good qualities.

STATEMENT OF ISSUES

 Whether the acceptance of a sum different than that in the contract was valid
and if it was then what was the effect of it on the original contract.
 Whether there was any breach of contract by Jiveeni Pvt. Ltd.
 Whether losses were accrued to the plaintiff due to the breach.
 Whether the losses accrued to the plaintiff amounted to Rs. 1, 50,000.

8
 SUMMARY OF ARGUEMENTS

1) Whether the acceptance of a sum different than that in the contract was
valid and if it was then what was the effect of it on the original contract:-
K D Parmanand Pvt. Ltd. had entered into a valid contract to purchase kids wear
garments from Jiveeni Pvt. Ltd for the ascertained price of Rs. 6, 00,000. Under Section
16 of the Sale of Goods Act 1930 it was a valid agreement to sell. Both had agreed on a
schedule of payment. After sometime , Jiveeni Pvt. Ltd. realized that K D Parmanand
Pvt. Ltd might not able to pay the sum due so Jiveeni Pvt. Ltd., agreed to accept
Rs.50,000 instead of Rs.2,00,000 as decided per the original contract. This was a part
remission of the contract by Jiveeni Pvt. Ltd under section 63 of The Indian Contract
Act, 1872.

2) Whether there was any breach of contract by Jiveeni Pvt. Ltd.

According to the paying schedule in the contract K.D. Parmanand Pvt. Ltd were
supposed to pay Rs.4,00,000 on taking the delivery of the clothes on 1st January 2017
and had to pay the rest of the amount Rs.2,00,000 as full and final settlement on 1st
March 2017 but the full delivery of clothes was not received on 1st January , only a part
delivery was received and the rest was received on 3rd March 2017, which is a breach of
contract under Section 47 of The Indian Contract Act 1872.
The quality of the rest of the clothes delivered on 3rd March 2017 was poor and
regardless of the notices sent to the Jiveeni Pvt. Ltd., out of which one was acknowledged
and accepted and the other was ignored the goods were not exchanged. The supply of
poor quality of clothes is a breach of contract under Section 16(1) of Sale of Goods Act
1930. This was a breach of contract under Section 39 of the Indian Contracts 1872.

3) Whether losses were accrued to the plaintiff due to the breach.

9
 The plaintiff accrued losses on various grounds by the breach of contract by
Jiveeni Pvt. Ltd., firstly, all the goods were not delivered on the date mutually decided
(1st January 2017) by the parties as per the contract, instead the full delivery was
received 2 months later on 3rd March 2017, due to this delay the plaintiff suffered a loss
in sale and business for 3 months. When the remaining clothes were delivered to the
plaintiff was found out to be of poor quality which could not be sold by the plaintiff and
they were not even exchanged by the defendants despite two notices sent to them
expressing the foresaid contention.

4) Whether the losses accrued to the plaintiff amounted to Rs. 1, 50,000

The plaintiff suffered loss of sale and business for three months due to the late
delivery of all the goods by the defendant. Besides that, the rest of the goods when
provided were found to be of poor quality and could not be sold which amounted to a loss
equal to the amount paid for the poor quality products as that amount could not be
recovered through sales. All these losses amounted to Rs.1, 50,000. Also the poor quality
products occupied unnecessary space as they were not exchanged despite the notices
sent.

10
 ARGUEMENTS ADVANCED

1) Whether the acceptance of a sum different than that in the contract was
valid and if it was then what was the effect of it on the original contract:-
The plaintiff K.D. Parmanand Pvt. Ltd. had entered into an agreement with a Jiveeni Pvt. Ltd.
for the delivery of kids wear garments under Section 4 of the Sale of Goods Act 1930.
According to the Section 16 of the Sale of Goods Act 1930, in case of transfer of property of
goods is to take place at a furniture time or to some conditions to be fulfilled after, the contract is
called an agreement to sell. It becomes a sale when the time elapses and the conditions are
fulfilled subject to which the property in the goods to be transferred.

The defendant was supposed to give the full delivery of the garments on 1st January 2017 and
the plaintiff K.D. Parmanand Pvt. Ltd. were supposed to pay Rs.4,00,000 in exchange of the
full delivery and the full and final payment of Rs.2,00,000 was to be paid on 1st March 2017.
Accordingly K D Parmanand Pvt. Ltd. paid Rs.4, 00,000 on 1st January though the full
payment was received.

After sometime when both the parties were facing financial challenges , the defendant realized
that the plaintiff might not be able to pay the final payment due of Rs.2,00,000 , hence the
plaintiff agreed to accept Rs.50,000 instead of Rs.2,00,000 due to be paid by the plaintiff. This
part remission of the contract by the defendant according to the Section 63 of The Indian
Contract Act 1872. According to Section 63 of the Indian Contract Act, 1872 that every
promisee may dispe1nse with or remits, wholly or in part, the performance of the promise made
to him, may extend the time of performance or may accept instead of it any satisfaction which he
thinks fit. Here in the case the promisee on his accord agreed to accept an amount of Rs.50, 000
instead of Rs.2, 00,000 which he thought he was fit. Hence this was a valid remission to the
contract and no other changes were agreed upon to be made in the contract by the parties and the
rest of the contract was supposed to be performed in the same way it was decided to be and the

11
defendants were still obliged to pay the remaining clothes which were supposed to be delivered
on 1st January 2017.

2) Whether there was any breach of contract by Jiveeni Pvt. Ltd.

According to the facts of the case the plaintiff entered into a contract with the defendant
for the delivery of kids wear clothes for a consideration of Rs.6, 00,000 and a payment schedule
was agreed upon according to which a payment of Rs.4, 00,000 was to be made by the plaintiff
on the delivery of goods on 1st January and the whole delivery should have been made on that
date. According to the facts of the case it is mentioned that a payment schedule was agreed upon
by the parties and not a schedule for deliveries, the payments were to be made in parts but
nowhere in the contract was it mentioned that part goods will be delivered. It was clearly
mentioned in facts that “K.D Parmanand Pvt. Ltd agreed to pay Rs.4, 00,000/ partially on the
delivery of the kids wear garments on 1st January 2017 and a final payment of Rs.2, 00,000/ on
1st March 2017.
It was never ever mentioned anywhere in the contract that the full and final settlement was to be
paid on receiving the part delivery of the clothes. The defendant was supposed to deliver the
whole on 1st January but a part of it was delivered in 3rd March which in inconsistent with the
contract and is therefore a breach of contract according to Section 52 of The Indian Contract
Act 1872. According to this section 52 in a contract when the order in which the reciprocal
promises are to be performed in that order ; and where the order is not expressly fixed by the
contract , they shall be performed in that order , in this case the order was clearly expressed in
the form of a payment schedule the defendant was supposed to deliver the whole before taking
the full and final payment but it did not deliver the whole on 1st January 2017 as required by
the contract but on 3rd March 2017.
According to Section 55 of The Indian Contracts Act, when a party to a contract promises to
do a certain thing at or before a specified time, fails to do any such thing at or before the
specified time, the contract, so much it has not been performed, becomes voidable at the option
of the person it was promised to.

12
Also if the seller delivers only a part of the goods and the goods delivered are in conformity of
the contract Articles 46 and 50 of the CISG (Contract for International Sale of Goods.) the
buyer still might avoid the contract if there is a fundamental breach.

Also under Article 49(2) of the Act the buyer loses the right to declare the contract void if the
seller has delivered the goods unless he or she does it in respect to late delivery which is
fundamental breach and it should be done within reasonable time after he has been made aware
of the delivery.
As to the dispute over the delivery of the low quality goods on 3rd March 2017, the remaining
products which were delivered after the full and final payment of Rs.50, 000 were of poor quality
which is again a breach of the contract. According to Section 16(1) of the Sale of Goods Act
1930 where the buyer, expressly or by implication, makes known to the seller the particular
purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill
or judgment, there is an implied condition that the goods shall be reasonably fit for such purpose.
According to the facts of the case the defendant agreed to pay a lesser amount because he knew
that the plaintiff had suffered heavy losses in business and if he knew that the plaintiff suffered
losses in business that implies that the defendant knew what business the plaintiff was in.

The court shall not entertain the contention of the defendants that the goods were not of poor
quality because if that had been the case, then when a notice to exchange the poor quality
products was sent to the defendant it should have been expressed by them that the goods were
not of poor quality but that was not done but instead the defendant acknowledged and accepted
the notice but no exchange took place and the second notice was not even replied to.

In the case M/S. Kwality Manufacturing Corporation V. Central Warehousing Corporation,

(2009) 5 SCC 142, in which the contract for 32 lakh bamboo mats when the bamboo mats of
poor quality were delivered to the applicant damages were awarded to the applicant for the
breach of contract in pursuance to Section 16 of The Sale of Goods Act 1930.

13
3) Whether losses were accrued to the plaintiff due to the breach.
According to the foresaid contract the full delivery of the contract goods was not received by the
plaintiff on the date agreed upon. Without any doubt that led to loss of sale and business, loss of
goodwill and reputation of the plaintiff party.

In the case Shanti Devi v. Bhojpur Rohtas Gramin Bank, AIR 2007 DOC 102 (NCC) it was
held that when a promise has to be performed before a certain or on a specific day then it must be
performed before the lapse of that time.

Even when the rest of the goods due to be delivered were delivered on 3rd March 2017 they were
found to be of poor quality which could not be sold , traded and performed business and the
consideration for that was paid to the defendant by the plaintiff on time . Also according to the
facts the defendant very well knew that the plaintiff was suffering heavy losses in business and
would be affected greatly by loss of sale and business that the delivery of poor quality of
products would result in.

So the plaintiff accrued losses due to the partial and late delivery of the goods and also due to the
poor quality of the products delivered.

4) Whether the losses accrued to the plaintiff amounted to Rs. 1, 50,000

According to the case Karsandas H. Thacker v. Saraan Engg. Co. Ltd., AIR 1965 SCC 1981
Damages are to be awarded as compensation for any loss or damage arising naturally in the usual
course of things from the breach of contract.

Also in the case Hadley v. Baxendale, All Er Rep 1846, certain principles were laid down, In
this case plaintiff was an extensive business miller; their mill was stopped by a breakage of the
crankshaft by which the mill worked. The defendants, a firm of carriers were engaged to carry
the shaft to the manufacturers and patent for a new one. The plaintiff’s servant told the
defendants that the mill was stopped and the new shaft must be sent immediately , but due to the

14
neglect of the defendant the delivery was delayed and the plaintiff did not receive the new shaft
for several days after the after they would have otherwise done. The action was bought for loss
of profits they would have made in the time delayed.

In this because the complete delivery was not received on the agreed date, it led to loss of
consignments and sales to the plaintiff which ultimately transforms into loss of profits even after
the delivery of the remaining products they were of poor quality and they could not be sold at all
which again resulted into loss of sales and profits and also the price paid for the goods which
could not have be recovered.

According to the rules laid down in this case only general damages can be recovered and not
special damages and for a business of garments the loss of profits and sales is what takes place in
usual course if the delivery is on time or the quality and it is not any special damage. Also the
defendant was aware of the conditions of the plaintiff which were financially constrained.

So the damages accrued by the plaintiff includes: loss of sale and profits due to the
partial delayed delivery of the goods for the two months + loss in goodwill and reputation + loss
for sale and profits of poor quality + loss of compensation for the clothes which could not be
recovered.

For the breach of contract on the part of the defendant under Section 39 of the Indian Contract
Act 1872, the plaintiff claims damages under Section 73 of the Act.

Hence the plaintiff is entitled to Rs.1, 50,000 as damages for the breach of contract by the
defendant.

15
 PRAYER
Therefore in the light of facts stated , issues raised , arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble District Court of Senior Civil
Judge , Delhi , that it may be graciously pleased to adjudge and declare.

THAT THE PLAINTIFF IS ENTITLED Rs.1, 50,000 AS DAMAGES FOR BREACH

OF CONTRACT.
The court may be pleased to pass any other decree, which the court may deem fit in the light of
justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Sd/._____________________
COUNSELS FOR PLAINTIFF

16
 MOOT-COURT
CIVIL CASE PROCEEDING -2

IN THE HON’BLE FAMILY COURT OF GUNTUR, ANDHRA PRADESH

IN THE MATTER OF

MOHAN ………PETITIONER
V.
FATIMA …….…DEFENDANT

[WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT]

TABLE OF CONTENTS

INDEX OF AUTHORITIES - - - - - - - -
STATEMENT OF JURISDICTION - - - - - - -
STATEMENT OF FACTS - - - - - - - -
STATEMENT OF ISSUES - - - - - - - -
SUMMARY OF ARGUMENTS - - - - - - - -
ARGUMENTS ADVANCED - - - - - - -
I. THE CONVERSION OF MOHAN IS VALID. - - - - -
II. THE CONVERSION OF FATIMA WAS INVALID - - - -
III. RESTITUTION OF CONJUGAL RIGHTS CANNOT BE GRANTED TO
MOHAN- -
17
 A. THE MARRIAGE BETWEEN MOHAN AND FATIMA WAS NOT
VALID- -
PRAYER - - - - - - - - - -

INDEX OF AUTHORITIES

A. Table of Cases
S. No. Name of the Cases and Case Citation Page No.

1. Asfaq Qureshi v. Ayesha Qureshi, AIR 2010 Chh 58

2. Bak Bibi v. Qaim Din, AIR 1934
3. C.M. Arumugam v. S. Rajgopal, (1976) 1 SCC 863
4. Chitralekha Kunju v. Shiba Kunju, (1998) II DMC 454 (Bom- DB)
5. Digbijaya Missal v. State of Orissa, AIR 1977 SC 908
6. Durgaprasada Rao v. Sudarasanaswam AIR 1940 Mad 513
7. Evangelical Fellowship of India Vs. State of Himachal Pradesh,
2013 (4) RCR (Civil) 283
8. Gajar Narain Bhura v. Kanbi Kunverbai Parbat, AIR 1997 Guj 185
9. Gurdial Kaur v. Mukaan Singh, AIR 1967 P&H 235
10. Harvinder Kaur v. Gursewak Singh, (1998) AIHC 1013 (P&H)
11. Inder Yash v. Manjeet Kaur, (1980) HLR 251
12. Jiva Magan v. Bai Jethi, AIR 1941 Bom 535
13. Kazi Siddique Hossain v. Salim Khatoon, 61 CWN 187
14. Kumari Madhuri Patil v. Additional Commissioner, Tribal
Development, 1994 AIR SCW 4116
15. N.S. Ziauddeen v. S. Ashok Kumar, Principal Sessions Judge,
Kilpauk, Chennai and three Ors. 2002 (2) CTC 257

18
16. P.P. Puthiyanal Attakoya Thangal and another Vs. Union Territory
of Lakshadweep and another 1988 CrLJ 1206
17. Parbia Ram v. Thopli, AIR 1966 HP 20
18. Principle, Guntur Medical College v. Mohan Rao [1976] 3 SCR
1046
19. Ravinder Kumar v. Kamal Kanta, (1976) HLR 380
20. Rev. Stainislaus v. State of Madhya Pradesh and Ors. AIR 1977
21. S. Swvigaradoss v. Zonal Manager, F.C.I [1996] 1 SCR 995
22. Santosh Kumar Pandey v. Ananya Pandey, AIR 2013 Chh 95
23. Satyabhama Pradhan v. Sidhartha Sahoo, AIR 2005 Ori 177
24. Savita Ben Somabhai Bhatiya vs. State of Gujrat, (2005) 3 SCC 636
25. Slevi M. Shyamala v. Tamil Nadu State Scrutiny Committee (2009)
2 MLJ 278
26. Valasama Paul v. Cochil University [1996] 1 SCR 128
27. Vijayakumari V. Devabalan: I (2004) DMC 667

B. Treatises, Books, Reports & Digests:

1. A.G. Gupte, Hindu Law, (1st ED. : 2003) (Premier Publishers Delhi)
2. Acharya Shuklendra, “Hindu Law”, Reprint 2009, Modern Law Publications,
New Delhi.
3. Anjani Kant, “Women and the Law”, A.P.H. Publishing Corporation, New
Delhi
4. Asaf A. A. Fyzee, Outlines of Muhammadan Law, (5th ED. : 2008) (Oxford
University Press New Delhi)
5. Dr. Paras Diwan, “Family Law”, Ninth Edition, 2009, Allahabad Law Agency
6. Dr. Paras Diwan, Law of Marriage and Divorce, (5th ED.: 2008), (Universal
Law Publishing Co)
7. M.N. Srinivasan‟s, “Commentary on The Hindu Marriage Act, 1955”, Second

19
 Edition, Delhi Law House
8. M. N. Das, Marriage and Divorce, (6th ED. : 2002) (Eastern Law House New
Delhi)
9. S.P. Gupte, Hindu Law in British India, (2nd ED.:1947) (Premier Publishers
Delhi)
10. V.P. Bharatiya, Syed Khalid Rashid’s Muslim Law, (4th ED.:2004) (Eastern
Book Company Lucknow)
11. Mayne’s, Treaties on Hindu law and Uses, Edn.17th, (Bharat Law House) 2014
12. Halsbury’s Law of India, Family Law II, (Lexis Nexis) Vol. 28, 2007
13. Mahesh Dheer, Supreme Court Digest on Hindu Laws and Muslim Laws,
(Singla Law Agency)
14. Bhatnagar, Manual of Marriage and Divorce, (Unique Law Publisher) Edn.,
4th 2009
15. Flavia Agnes, Marriage Divorce and Matrimonial Litigation, (Oxford
University Press) Vol. 2, 2011
16. S.A Desai, Mulla; Principle of Hindu Law, (Lexis Nexis) Vol. 2 Edn.28th 2007
17. Sir Dinshaw Fardunji Mulla, Principle of Mahomedan Law, (Lexis Nexis) Edn.
20th 2013
18. Kumud Desai, Indian Law of Marriage and divorce, (Wadhwa Publications)
Edn. 7th 2008
19. Gurbax Singh, The Principle of Hindu Law, (Vinod Publication) Edn. 2009
20. Mookerjee, Marriage Sepration and Divorce, (Kamal Law House) Edn 4th
2008

C. Journals Referred
1. All India Reporter
2. Supreme Court Cases
3. Indian Law Reporter

20
 4. Supreme Court Cases

D. Database Referred
1. [Link]
2. [Link]
3. [Link]
4. [Link]

5. [Link]

STATEMENT OF JURISDICTION
THE PETITIONER HAS APPROACHED THIS HON‟BLE FAMILY COURT OF GHAZIABAD,
UTTAR PRADESH UNDER SECTION 7 OF FAMILY COURTS ACT, 1984.

STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court the facts of the present case
are summarized as follows:
1. Mohan, born as fourth child in family consisting of his father Raju alias Rahmatullah
Khan, his mother Renuka alias Ria Khan and three siblings, used to live with his maternal
grandparents who were Hindu. At the instance of observing different practices in family it
was explained to him that his parents were also Hindu by birth, though belonging to a lower
caste. For the reasons of such discriminatory practices against the people belonging to lower
caste he decided to convert to Islam.

21
2. Determined to bring about change in such discrimination he applied for seat in Guntur
Medical College, but the converts to other religions from Hinduism were treated as backward
classes thereby he didn’t get admission. On the advice, he got himself converted to Hinduism
by going through Suddhi ceremony, claiming to be a member of Madiga caste he got
admission as falling under Schedule Caste.

3. In the fifth year of his study, he fall in love to a Muslim girl Fatima, though aware
about their status in the society. The girl reasoned that she can convince her father for their
marriage as they are both Muslims, but then Mohan disclosed about his conversion to
Hinduism which made her feared that the marriage would not be accepted by her father as
being strong follower of Islam. When she went home, got aware about the preparations of her
marriage to which Mohan insisted they should get married soon and under the emotional
threat and pressure she agreed for such marriage.

4. He made Fatima to undergo Suddhi ceremony, solemnized the marriage in a temple,

thereafter also married under Muslim form wherein Qazi performed their marriage. When the
girl felt guilty about the marriage, she confessed it to her father who convinced her to get out
of this relationship as Mohan is not a trustworthy person. He made her to believe and
migrated her to another medical college. When she stopped all her contacts with Mohan, he
filed for Restitution of Conjugal Rights under the HMA, 1955 in Family Court of Guntur,
Andhra Pradesh.

5. Fatima challenged the validity of the marriage alleging that her conversion to Hinduism
not valid. Though Mohan countered that in case the Hindu marriage is not valid, the Muslim
marriage is valid one. Fatima again contended that even that marriage was not valid as a
Muslim woman cannot marry a non-Muslim. Thus creating dichotomy when Mohan accepted
that his conversion was not valid as done for the purpose of getting admission in Medical
College, thereby validating the Muslim marriage.

22
 STATEMENT OF ISSUES

I. WHETHER THE CONVERSION OF MOHAN IS VALID.

II. WHETHER THE CONVERSION OF FATIMA WAS INVALID.
III. WHETHER RESTITUTION OF CONJUGAL RIGHTS BE GRANTED TO
MOHAN.
A. WHETHER THE MARRIAGE BETWEEN MOHAN AND FATIMA
WAS VALID.

SUMMARY OF ARGUMENTS

I. THE CONVERSION OF MOHAN IS VALID.

It is a settled law that a person, who was born to converted parents, originally belonged to
Hindu religion and of Scheduled Caste, is entitled to claim the status of Scheduled Caste, after
his re-conversion to Hinduism and having been accepted by the said community people. on
conversion to Hinduism, a person born of some other religion converts would not become a
member of the caste to which his parents belonged prior to their conversion to Christianity,
automatically or as a matter of course, but he would become such member, if the other members
of the caste accept him as a member and admit him within the fold.

II. THE CONVERSION OF FATIMA IS INVALID.

Conversion under compulsion is violative of Right to Freedom of Religion guaranteed by
Art-25 of Constitution of India. In the constitutional assembly debate the clause read as „Any
conversion from one religion to another of any person brought about by fraud, coercion or undue
influence shall not be recognized by law. Any interference with that right of the other person by

23
resorting to conversion by force, fraud or allurement cannot, in our opinion, be said to
contravene Article 25 (1) of the Constitution of India.

III. RESTITUTION OF CONJUGAL RIGHTS CANNOT BE GRANTED TO

MOHAN
The sine qua non for maintaining an application under Section 9 is the existence of
relationship of husband and wife having no dispute in their existence of marriage between them
for seeking decree for restitution of conjugal rights. There ought to be prohibition upon the
conversion of minor children with legal guardians, where the conversion takes place without the
consent and knowledge of the legal guardians. The marriage without the consent of the legal
guardians would thereby be considered to be irregular, which may be terminated by either party,
before the consummation by words showing an intention to separate. The court has opined that
the child marriage performed on the grounds of fraud or force would attract the provisions of
Section 12 (1) (c) of the Hindu Marriage Act, 1955.

24
 ARGUMENTS ADVANCED

I. THE CONVERSION OF MOHAN IS VALID

1. In the instant case, Mohan (herein after referred to as 'Petitioner') contended that his
conversion is invalid as it was for the purpose of taking benefit of getting admission to the
medical college. It is submitted that, petitioner was born to a converted parents. His parents were
originally Hindu before their conversion to Islam. The Constitutional Bench of the Hon’ble
Supreme Court in Principle, Guntur Medical College v. Mohan Rao, [1976] 3 SCR 1046, has
laid down, that a person whose parents or grandparents, originally belonged to a scheduled caste
before their conversion to some other religion can, on re-conversion to Hinduism, be regarded as
a member of the scheduled caste, only if he is accepted as a member of that caste by the other
members of the caste.

2. Therefore, it is clear that on conversion to Hinduism, a person born to some other religion
converts can become a member of the caste to which his parents belonged, prior to their
conversion, subject to the acceptance of the other people of the community. This principle was
reiterated in the case of Slevi M. Shyamala v. Tamil Nadu State Scrutiny Committee. (2009) 2
MLJ 278,

3. It is a settled law through various decisions4 that a person, who was born to converted
parents, originally belonged to Hindu religion and of Scheduled Caste, is entitled to claim the
status of Scheduled Caste, after his re-conversion to Hinduism and having been accepted by the
said community people.

4. Also, in the case of Durgaprasada Rao v. Sudarasanaswam, AIR 1940 Mad 513, it was
observed that on conversion to Hinduism, a person born of some other religion converts would
not become a member of the caste to which his parents belonged prior to their conversion to

25
Christianity, automatically or as a matter of course, but he would become such member, if the
other members of the caste accept him as a member and admit him within the fold.

5. The question of conversion was answered by the court in the case of C.M. Arumugam v.
S. Rajgopal, (1976) 1 SCC 863., wherein a person belonged to Adi Dravida caste before his
conversion to Christianity, could, on reconversion to Hinduism once again become a member of
the Adi Dravida caste. Supreme Court, after examining the question on principle and referring to
the decided cases, pointed out that the consistent view taken in this country since 1886 was that
on reconversion to Hinduism, a person can once again become a member of caste in which he
was born and to which he belonged before conversion to another religion, if the members of the
caste accept him as a member.

6. The reasoning on which this decision proceeded is equally applicable in the instant case
where the parents of a person are converted from Hinduism to Islam and he is born after their
conversion and on his subsequently embracing Hinduism. From the above discussed cases, it can
be said that the conversion of Petitioner is valid in the eyes of law as it is only subjected to the
acceptance to the society. In the instant case there is no sign of any opposition from the society
and thus conversion is valid.

7. It is pertinent to note that in the case of Principle, Guntur Medical College v. Mohan
Rao, which has the similar fact, therein the respondent got converted to Hinduism to take
admission in the college and the Apex Court held it to valid. Thus, following the decisions it can
be said that the conversion of Mohan is valid and he at the time of the marriage was a Hindu.

II. THE CONVERSION OF FATIMA IS INVALID

8. In the instant case the Petitioner by the emotional threat and pressure converted Fatima
(hereinafter referred to as 'Defendant'). It is submitted that such a conversion cannot be said to
be valid in the eyes of law. It is important to note that Petitioner made the Defendant undergo
sudhi ceremony and also changed her name as Meera.
26
9. At this point, it is pertinent to note that few states have implemented laws criminalizing
conversion resulting out of force, fraud or undue influence. The constitutionality of these Acts
was challenged in light of Article-25 of Constitution of India. The Apex court upheld the
Constitutional Validity of the Act. The Apex court opined that, these steps are legislatively
stipulated precautions to ensure that the process of renouncing one religion and adopting another
is genuine, voluntary and bona fide, and free from inducement, coercion and fraud.

10. Following the reasoning of the Apex Court it can be said that conversion by the undue
influence cannot be said to be valid in the eyes of law and subsequent actions on that conversion
is also rendered invalid.

11. Also, conversion under compulsion is violative of Right to Freedom of Religion

guaranteed by Art-25 of Constitution of India. In the constitutional assembly debate Mr. K. M.
Munshi had passed a resolution making conversion by use of force undue influence illegal. The
clause read as “Any conversion from one religion to another of any person brought about by
fraud, coercion or undue influence shall not be recognized by law.” (11 CAD Vol. III Part II
Clause 17). This has been incorporated in Art 25 of Indian Constitution, whenever a person
has been forcibly converted his right to profession, practice and propagation of religion is
violated.

12. What is penalized is conversion by force, fraud or by allurement. The other element is
that every person has a right to profess his own religion and to act according to it. Any
interference with that right of the other person by resorting to conversion by force, fraud or
allurement cannot, in our opinion, be said to contravene Article 25 (1) of the Constitution of
India, as the Article guarantees religious freedom subject to public order. (Rev. Stainislaus v.
State of Madhya Pradesh and Ors. AIR 1977 SC 908.)

27
13. From the discussed case laws and legal provisions, it can be said that the conversion of
Defendant was invalid as it was under undue influence and it is invalid in the eyes of law, thus
Defendant was Muslim at the time of her marriage.

III. RESTITUTION OF CONJUGAL RIGHTS CANNOT BE GRANTED TO

MOHAN
14. Section-9, Hindu Marriage Act, 1955 provides for the Restitution of Conjugal Rights
wherein it provides relief to the party if one spouse withdraws from the society of other for no
reasonable cause but the prerequisite condition of such relief is a valid marriage. The sine qua
non for maintaining an application under Section 9 is the existence of relationship of husband
and wife having no dispute in their existence of marriage between them for seeking decree for
restitution of conjugal rights. (Santosh Kumar Pandey v. State of Madhya Pradesh and Ors.,
AIR 1977 SC 908). If the fact of the valid marriage is not established, the rejection of a prayer
for the restitution of conjugal rights is proper. An application for restitution of conjugal rights
can be entertained only when the marriage between the parties is valid. Where the parties are not
legally married or the marriage was not subsisting at the time of the petition, the question of
granting of decree of restitution could not arise.

A. The Marriage Between Mohan And Fatima Was Not Valid.

15. The Defendant disputes the existence of a valid marriage as the conversion of Defendant
from Islam to Hinduism was not valid, for the reason it was made under emotional threat and
pressure by Mohan. The consent for the said marriage was taken by undue influence which
rendered the marriage invalid thereby falsifying the claims of the husband.

16. The conversion of Fatima was not valid for the reasons of her being minor, the consent of
the lawful guardian or parent needs to be acknowledged but in the instant matter, no such
consent was obtained before conducting the ceremonial process, thereby invalidating the

28
existence of a marriage. Thus, Fatima at the time of marriage was Muslim, married to a Hindu
thus marriage ceased to exist under the provision specifying for attainment of majority age at the
time of marriage.

17. Further in the case of Savita Ben Somabhai Bhatiya vs. State of Gujrat, (2005) 3 SCC
636, the court held that if the wife never converted into Hindu before marriage, then the marriage
could not be solemnized unless conversion according to the Hindu rituals done with prior
consent, thereby the marriage between a non-Hindu and the applicant would be contrary to the
provisions of the law, furbishing parties to justify their claims on other grounds.( P.P.
Puthiyanal Attakoya Thangal and another vs. Union Territory of Lakshadweep and another
1988 Cr.L.J. 1206) Henceforth, where the respondent in a petition for restitution of conjugal
rights denies the marriage itself the court has jurisdiction to decide whether there is marriage or
not. (Gurdial Kaur v. Mukaan Singh, AIR 1967 P&H 235)

18. In Asfaq Qureshi v. Ayesha Qureshi, the Family Court dismissed the petition for
restitution of conjugal rights on the grounds that even though the conversion of a party to Islam
admitted, it was only for purpose of marriage and not for faith in unity of God and therefore,
such conversion was void. In the Ratio Decidendi court opined- “No person shall be allowed to
exploit the religion for achievement of personal and selfish ends like marriage without consent.”
Division Bench finally held that marriage between non-Hindu lady and Hindu male is not a valid
marriage under the 1955 Act as under that Act marriage can be solemnized only between two
Hindus. (Vijayakumari V. Devabalan: I (2004) DMC 667) Thus, it can be said that the
conversion for the achievement of personal purposes is invalid and even though not objected, the
marriage between the Hindu and non-Hindu cannot subsist, thereby quashing claims of the
husband for restitution of conjugal rights in the present case.

19. There ought to be prohibition upon the conversion of minor children with legal guardians,
where the conversion takes place without the consent and knowledge of the legal guardians.
Marriage shall be entered into only with the free and full consent of the intending spouses. The
29
marriage without the consent of the legal guardians would thereby be considered to be irregular,
which may be terminated by either party, before the consummation by words showing an
intention to separate. (Bak Bibi v. Qaim Din, AIR 1934). The Defendant challenged the validity
of the marriage on the ground that her conversion was not valid, thereby even after following the
rituals of the Hindu marriage any arrangement made in regard to an irregular marriage stands
vitiated. The Defendant herein has intention to separate and since the consent of the legal
guardians has not been obtained, the termination can be validated.

20. A Mohammedan woman cannot contract a valid marriage except with a Mohammedan.
She cannot contract a valid marriage even with an Idolater or a fire-worshiper; however such
marriages are irregular in nature. (Mulla, Principle of Mohammedan Law, 2013, Ed. 20th,
Para-259, Pg-338) In the instant matter, the conversion of Fatima was not valid, thus she was a
Muslim at the time of the marriage, and since Mohan was Hindu from his conversion by
following Sudhi ceremony, the marriage becomes irregular, which could be terminated at
instance of either party. The requisite presence of two witnesses at the time of marriage was also
not fulfilled in the present matter, thereby forming grounds for repudiation of such marriage.
(Kazi Siddique Hossain v. Salim Khatoon, 61 CWN 187)

21. In the light of the judicial pronouncements and validity of the provisions governing
separate religions, it can be concurred that the conversion for the marriage in the present case
was invalid; thereby the girl still subsumes to be a Muslim thereby quashing the claim of the
existence of a valid marriage. Thus where one of the parties to the marriage was not a Hindu it
was held that the marriage was not valid under Section 5 of the Hindu Marriage Act, 1955 and
hence no relief by way of restitution could be sought. (Chitralekha Kunju v. Shiba Kunju,
(1998) II DMC 454 (Bom- DB).

22. Thus the restitution of conjugal rights cannot be claimed by the Petitioner in the present
matter as the marriage in itself is not valid, providing Fatima the right to repudiate such

30
arrangement based on undue influence and emotional threat considered to be grounds for
separation.

23. Even it is assumed that the conversion was valid then the Defendant at the time of
marriage was Hindu and minor of 17 years. Also, the consent for the marriage was taken under
emotional threat and pressure. Any improper pressure put upon a person to induce him/her to
confer the benefit upon the party pressing amounts to undue influence. Undue influence is
presumed until the contrary is proved when the relationship between the parties is such that one
is entitled to the confidential advice of the other. (Asutosh Mookerjee, Marriage Seperation and
Divorce, Ed. 4, 2008, Kamal Law House, Pg- 96.) The marriage entered into by undue influence
becomes a voidable marriage that is they are liable to invalidated by the action of court.29 The
court has opined that the child marriage performed on the grounds of fraud or force, would
attract the provisions of Section 12 (1) (c) of the Hindu Marriage Act, 1955. (Gajar Narain
Bhura v. Kanbi Kunverbai Parbat, AIR 1997 Guj 185; see also Harvinder Kaur v. Gursewak
Singh, (1998) AIHC 1013 (P&H)). This makes the marriage voidable under Hindu law and
thereby the petitioner is not entitled to avail any relief by the virtue of restitution of conjugal
rights.

PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities cited,
the Counsels on behalf of the Defendant humbly pray before this Hon’ble Court that it may be
pleased to adjudge and declare that:

1. The petition is dismissed.

2. The marriage is invalid.

31
Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Defendant shall as duty bound
ever pray.

Sd/- _______________________
Counsels for the Defendant

32
 MOOT-COURT
CRIMINAL CASE PROCEEDING - 1

IN THE HON’BLE COURT OF SESSION JUDGE, MEERUT

Cr. Case No. 109 of 2018

STATE OF U.P.
(PROSECUTION)

V.

BHUWAN & JYANT

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTIONS 307, 325, 354(D), 355, 504, 509 & 358
OF THE BARAT PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE SESSION JUDGE

MEMORIAL ON BEHALF OF THE PROSECUTION

33
Table of Contents
Index of Authorities
 Table of Contents
 Books
 Websites
 Statutes
Statement of Jurisdiction
Statement of Facts
Statement of Charges
Summary of Arguments
Arguments Advanced
Issue-I: Whether Bhuwan is guilty under Section 354D and 509 of Barat Penal Code?
Issue-II: Whether Bhuwan is guilty under Section 307 BPC for attempting murder?
Issue-III: Whether Jyant is an offender under Section 325 of BPC
Issue-IV: Whether Jyant is guilty under Section 355 and 504 of BPC?
Issue V: Whether the mob that attacked Bhuwan is an offender under Sec 358 of BPC?
Prayer
List of Annexure
• Annexure 1
• Annexure 2
• Annexure 3
• Annexure 4
• Annexure 5
List of Exhibits
Exhibit-A
Exhibit-B
Exhibit-C
Exhibit-D
Exhibit-E

34
 Exhibit-F
Exhibit-H
Exhibit-G

INDEX OF AUTHORITIES

Books
1. Ratanlaland Dhirajlal, The Indian Penal Code,33rd Ed.(2011)
2. P.S.A. Pillai (13th Ed. 2017)
3. Gaur, KD, Criminal Law: Cases and Materials, (6thEd. 2009)
4. Gupta and Dighe, Criminal Manual, (7thEd. 2007)
5. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

Table of Cases
S. No. Name of the Cases and Case Citation Page No.

1. Abhiram Mukhi v. State of Orissa, 1996 Cri LJ 2341

2. Aman Kumar v. State of Haryana, AIR 2004 SC 1497
3. Apparel Export Promotion Council v A.K. Chopra, AIR 1999 SC 625
4. Chimbanbhai Jagabhai Patel v State of Gujarat, AIR 2009 SC 3223
5. Deputy Inspector General of Police v. S Samuthiram, (2013) 1 SCC 598
6. Hari lal & Anr. v. State. of UP, 1970 SCR (2) 237
7. Inder Mohan Goswamy v. State of Uttaranchal and Ors, 2007 (4) JCC
2843
8. Jagga Singh v. State of Punjab, (2001) 3 SCC 137

35
 9. Jage Ram v. St. Of Haryana, (2015) 11 SCC 366

10. Jodh Singh v. State of UP, 1991 Cr LJ 3226 (All)

11. Jodha v. St. of Rajasthan, (1994) SCC Online Raj 161
12. Liyakat Mian v. State of Bihar, AIR 1973 SC 807
13. Om Prakash v. State of Punjab, AIR 1961 SC 1782
14. Prabhu Dayal v. St. of MP, (2016) SCC Online MP 8503
15. Pran Dutt v. UP, (1983) 1Crimes 286
16. Raghunath alias Ram Singh, (1940) 16 Luck 194
17. Sarju Prasad v. State of Bihar, AIR (1965) SC 843
18. Shaikh Krimulla v. St. of AP, AIR 2009 SC 1711: 2009 11 SCC 37IT
19. State v. Chottu @ Javed Khan, Case no. 341/2A/04 of 2013
20. State v. Santosh Kumar Singh, (2010) 9 SCC 747
21. State of Punjab v. Major Singh, AIR 1967 SC 63
22. State of Madhya Pradesh v. Kedar Yadav, 2001 (1) SCC (Cri) 1008
23. State of UP v. Indirajeet Alias Sukhata, (2000) 7 SCC 249
24. Sukharam v. St. of MP, AIR 1989 SC 772
25. TarkeshwarSahu v. St. of Bihar, 2006 (8) SCC 560
26. Vidyadharan v. State of Kerala, (2004) 1 SCC 215
27. Vishaka &Ors. v. State of Rajasthan &Ors, AIR 1997 SC 3011

Books
1. Ratanlaland Dhirajlal, The Indian Penal Code,33rd Ed.(2011)
2. P.S.A. Pillai (13th Ed. 2017)
3. Gaur, KD, Criminal Law: Cases and Materials, (6thEd. 2009)
4. Gupta and Dighe, Criminal Manual, (7thEd. 2007)
5. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

36
WEBSITES
1. [Link]
2. [Link]
3. [Link]
4. [Link]
5. [Link]

STATEMENT OF FACTS

1. On the 12th of June 2017 at around 10:00 AM. Bhuwan and Pooja were going to meet
each other at the Indira Nagar metro station. Kavita and Jyant were accompanying Pooja.
2. Everyone panicked when Bhuwan while talking to Pooja took out a knife. After seeing the
knife Jeyant alerted the public and threw stones at Bhuwan. Bhuwan took Pooja as a human
shield and asked everybody to back off. On seeing the crowd approaching towards him, he
used the knife he was wielding on Pooja injuring her and she fell unconscious.
3. Bhuwan was overpowered by the crowd and Jyant started beating him. The ambulance
came with police and they both were taken to the hospital in the critical state and were
admitted to ICU.
4. Bhuwan and Pooja moved to Punnai after completing their graduation. Pooja got
campus placement and Bhuwan got a job with a private builder. Pooja was staying with Kavita
in a flat near Indira Nagar metro and Bhuwan was staying as a paying guest with Kishore.
5. Pooja started distancing herself from Bhuwan after moving to Punnai and Bhuwan was
not taking it well. On 9th June they met at the Taj restaurant and Pooja informed him of her
plan to become an air hostess. Bhuwan abused her and told her that she is losing her
character, reacting to the insult, Pooja slapped Bhuwan after

37
6. Bhuwan then got drunk with Karan, whom he met on his way to home and after getting
intoxicated he again called Pooja late at the night asking her to meet for one last time and he
wants to apologize for what he had done. They met at Indira Nagar metro station where the
incident took place.

STATEMENT OF CHARGES

Charge-1
Bhuwan – has been charged under The Barat Penal Code, 1860 - Section 307 for
attempt to murder, Section 354D for stalking and Section 509 for Word, gesture or act
intended to insult the modesty of a woman.

Charge-2
Jyant – has been charged under The Barat Penal Code, 1860 - Section 325 for
voluntarily causing grievous hurt, Section 355 for Assault or criminal force with intent to
dishonor person, otherwise than on grave provocation & Section 504 for Intentional
insult with intent to provoke breach of peace.

Charge-3
The unknown persons who attacked Bhuwan were also charged under Section 358 of The
Barat Penal Code, 1860.

38
 SUMMARY OF ARGUMENTS
ISSUE 1: Whether Bhuwan is guilty of outraging the modesty and stalking Pooja under

section 509 and 354D of BPC respectively?

It is submitted before the Hon’ble court that the accused, Mr. Bhuwan, had committed the
offense of Stalking and outraging the modesty of the victim and is guilty for the same. The
accused had an intention to outrage the modesty of woman and he did so, by abusing her
and calling her characterless. Similarly, he also committed the offense of stalking even
after sensing the victim’s disinterest in him. He tried contacting her from unknown
numbers and waited for her outside her workplace. The essential ingredients of both the
sections of BPC are fulfilled.

ISSUE II: Whether Deven is guilty under section 307 BPC for attempting murder of ?
It is submitted before the Hon’ble court that the accused, Mr. Bhuwan had committed the
offense of attempting to murder the victim. He slashed the victim’s neck with a
sharp-edged knife, already proves actus rea. The mens rea can be seen by the type of
weapon and wound along with part of the body attacked. The essential ingredients of
Section 307 are therefore fulfilled.

ISSUE III Whether Jeyant is an offender under section 325 of BPC?

It is submitted before the Hon’ble court that Accused no. 2, Mr Jyant is guilty of causing
grievous hurt voluntarily to Accused no 2 with the intention to vent out his personal
enmity. He threw stones on him that hit him on his head and thereafter rained fresh blows
on him. The act of Jyant was without any provocation which proves that the essential
ingredients of Section 325 of BPC are fulfilled.

ISSUE 4: Whether Jyant is liable under section 355 and 504 of BPC?
It is submitted before the Hon’ble court that the accused, Mr. Jyant had committed the
offense under section 355 and 504 of BPC by using criminal force with the intent to

39
 dishonor a person without being provoked and insults someone intentionally with the
motive of breaching the peace. The act of attacking Accused no. 1 proves the presence of
criminal force and the personal hatred for the accused proves the intent to dishonor.
Also, the intentional insult was caused by the conduct of attacking Bhuwan (accused).
Ergo, the essential ingredients of both the sections are fulfilled.

ISSUE 5: Whether the mobthat attacked Deven should be charged under Section 358 of
BPC?
It is submitted before the Hon’ble court that the law recognises moral policing wrong.
Since in the present case, the mobs attacked Accused no. 1, leaving him bruised and
unconscious, they are to be charged under this section. The act involved an assault and
that assault was a result of provocation. Ergo, both the ingredients of the section are
fulfilled.

40
 PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may
this Hon‘ble Court be pleased to:
1. Convict.
A. Mr. Bhuwan for the offence of outraging of the modesty of women under 509,
committing an offence of stalking a woman under section 354D, attempt to
murder under section 307 of Indian penal code 1860
B. Mr. Jyant for voluntarily causing grievous hurt to Bhuwan under section 325 and
offence of assault with the intent to dishonor a person under section 355 of Indian
Penal Code, 1860
2. Declare- Sentence of rigorous imprisonment as the court may deem fit.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: Punnai S/d_________________

Date: 7 October 2018 Counsel for the Prosecution

41
LIST OF ANNEXURES

S. No. Particulars of Document

D-1 FIR No. 110/2017 dated 12.06.2017
D-2 Statement of witnesses
D-3 Report of Investigating Officer u/s 173 Cr.P.C. dated 20.02.2018
D-4 Panchnama
D-5 Arrest Memo
D-6 Final Report u/s 173 Cr.P.C. dated 07.08.2017
D-7 Call records of Bhuwan and Pooja
D-8 Certificate u/s 65B of the Rabat Evidence Act, 1872
D-9 All Exhibits in Photographic format

Additional documents will be added if required.

42
 MOOT-COURT
CRIMINAL CASE PROCEEDING - 2

IN THE HON’BLE HIGH COURT OF DELHI

IN THE MATTER OF

THE STATE OF U.P. …APPELLANT

V.
DR. P.K. SHARMA & ORS. …RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS
LIST OF ABBREVIATIONS - - - - - - - -
INDEX OF AUTHORITIES - - - - - - - -
STATEMENT OF JURISDICTION - - - - - - -
STATEMENT OF FACTS - - - - - - - -
STATEMENT OF ISSUES - - - - - - - -
SUMMARY OF ARGUMENTS - - - - - - - -
ARGUMENTS ADVANCED - - - - - - - -
I. DOCTOR K.K. SINHA AND OTHER TEAM MEMBERS ARE LIABLE FOR
CRIMINAL NEGLIGENCE OF MURDER U/S 304 - - - - - -
A. RESPONDENT HAD THE KNOWLEDGE OF THE CONSEQUENCES
OF THE ACT
B. THE ACT OF RESPONDENT WAS LIKELY TO CAUSE DEATH - -

43
 C. THE DEATH OF THE DECEASED WAS CAUSED BY THE ACT OF
RESPONDENTS
D. THE RESPONDENTS FAILED TO MAINTAIN STANDARD OF
MONITORING PATIENT UNDERGOING ANAESTHESIA - - - - - -
PRAYER - - - - - - - - - -

INDEX OF AUTHORITIES

A. Table of Cases
S. No. Name of the Cases and Case Citation Page No.

1. Achutrao Haribhau Khodwa and Ors. vs. State of Maharashtra and Ors. 2
[1996] 2 SCR 881
2. Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 1
3. Basdev v. The State of Pepsu, AIR 1956 SC 488 2
4. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr,
AIR 1969 SC 128
5. Dr. Shiv Kumar Gautam v. Alima, Revision Petition No. 586 of 1999
6. Eckersley v. Binnie, (1988) 18 CLR 1
7. Jacob Mathew v. State of Punjab, 2005 CriLJ 3710
8. Jayaraj v. State of Tamil Nadu, AIR 1976 SC 1519
9. Joti Prasad v. State of Haryana, AIR 1993 SC 1167

10. Md. Suleman Ansari (D.M.S.) v. Shankar Bhandari (2005) 12 SCC 430
11. Poonam Verma v. Ashwin Patel and Ors. AIR 1996 SC 2111
12. Riyazuddin v. State of NCT of Delhi, 219 (2015) DLT 149
13. Sarwat Ali Khan v. Prof. R. Gogi and Ors (2009) 2 CompLJ 454

44
 (NCDRC)
14. State Tr. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda, (2012) 8 SCC
450
15. Surendra Chauhan v. State of M.P , 2000 CriLJ 1789
16. T. Padmanabhan v. Hindustan Maternity Home, KSC Times 1998

17. Tukaram Dyaneshwar Patil v. State of Maharashtra, SLP (CRL.) No.

1506/2012

B. Treatises, Books, Reports and Digests

1. Dr. Jagdish Singh, Medical Negligence and Compensation, Bharat Law Publication,
Edn. 4rd 2014
2. A. N. Saha, Supreme Court On Criminal Law, (New Delhi, Ashoka Law House) Vol.
4 (ed. 2nd) 2008
3. Anderw Grubb, Priciple of medical Law, Oxford University Press, 3rd Edn. 2010
4. ARCHBOLD, Criminal Pleading Evidence & Practice, (ed. 41th)
5. B. M. Gandhi, Indian Penal Code, (Eastern Book Company) (ed. 2nd) 2006
6. Batuk Lal’s Commentary On The Indian Penal Code, (Orient Publishing Company)
Vol. 2 (ed. 2nd) 2011
7. Criminal Manual (Delhi: Universal Law Publishing Co. Pvt. Ltd.) 2008
8. Dr Lily Srivastava, Law & Medicine, Universal Law Publishing, Edn 2010

9. Dr. Hari Singh Gour’s, Penal Law Of India (Law Publisher (India) Pvt. Ltd. Vol. 3
(ed. 11th) 2007.
10. Emily Jackson, Medical law, Orford Publication, Edn 2nd 2010.
11. Jonathan Herring, Medical Law and Ethics, Orford Publication, Edn 3rd 2010
12. Justice K Kannan, A Text Book of Medical Jurisprudence and Toxicology, Lexis
Nexis, Edn 24th 2011
45
13. Justice M. L. Singhal & Sabiha Revised by S. K. Sinha Ray, The Indian Penal Code
1860, (Premier Publishing Company) Vol.2 (ed. 2nd)
14. K. D. Gaur, A text Book on Indian Penal Code, (Universal Law Publishing co.) (ed.
3rd) 2003.
15. Lord Mackay of Clashfern, Halsbury’s Laws of England, Lexis Nexis, Vol. 30 (1) Edn
4th 2005
16. Marc Stauch and Kay Wheat, Medical Law, Routledge Cavendish, Edn. 3rd 2006
17. Prof T D Dogra, Medical Jurisprudence & Toxicology, Delhi Law House, Edn 11th
2008.
18. Ram Jethmalani & D S Chopra, The Indian Penal Code, Thomson Reuters, Vol. 1,
2014.
19. Ratanlal & Dhirajlal, The Indian Penal Code (Nagpur, Wadhwa) (ed. 31st) 2007
20. S P Sengupta, Indian Penal Code 1860, Kamal Law House, Vol 1 Edn 3rd 2015
21. S. C. Sarkar, The Indian Penal Code (Allahabad, Dwivedi Law Agency) 2007
22. Smith J.C. Mercy Killing, Justification and Excuse in Criminal Law, (The Hamlyn
Lecture) 40th Series, 1989.
23. Sweet & Maxwell, Medical Negligence, South Asian Edition, Edn 5th 2010.

24. Tapas Kumar Koley, Medical Negligence and The Law in India, Oxford Publication,
Edn 2010

C. Journals Referred
1. All India Reporter
2. Supreme Court Cases
3. Indian Law Reporter
4. Company Law Journal

D. Database Referred
46
 1. [Link]
2. [Link]
3. [Link]
4. [Link]
5. [Link]

E. Legal Dictionary
1. Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005
2. Garner B.A., Black’s Law Dictionary, (9th ed., 2009)
3. Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.), Sweet
and Maxwell, Vol. 4
4. Oxford Advanced Learners Dictionary, (7th ed., 2008)

F. Statute Referred
1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. The Medical Council Act, 1956
4. Delhi Medical Council Act, 1997

STATEMENT OF JURISDICTION
THE APPELLANT HAS APPROACHED THIS HON’BLE HIGH COURT OF DELHI
UNDER SECTION 378 OF THE CODE OF CRIMINAL PROCEDURE 1973.

47
 STATEMENT OF FACTS
For the sake of brevity and convenience of this Hon’ble Court the facts of the present case
are summarize as follows:

1. Mr. Arvind Kumar, met with an accident on 10.10.2012. As a result of the accident,
he sustained injuries for which he was taken to a small hospital, Kailash Rai Hospital. He
was unconscious at the time, but since there was no advanced equipment in that hospital, he
was rushed to Nelson Smith Hospital.

2. At Nelson Smith, his X-rays, scans and other tests were carried out whereby a fracture
of the mid-shaft of the right femur was detected. Thereafter, he was referred to specialist
hospital namely Dr. N.N. Vishwas Memorial Hospital and Dr. P. K. Sharma who was
well-known orthopedic surgeon, took charge of the patient under personal care. At the time
of admission in the hospital he was conscious, and then Dr. Sharma decided to conduct open
reduction of fracture and internal fixation under anesthesia. As operation procedure was on,
they found that some equipment was not performing at optimal level.

3. But, Dr. Sharma was of the view that level of performance of equipment was
manageable, so they go ahead with the operation, in view of the urgency of the situation. The
equipments involved included the machines used for monitoring of oxygen supply and the
retention level of anesthesia. After the operation the patient was kept under the observation
but he did not regain consciousness for 24 hours, for which he was referred to Rajiv Gandhi
Multi-Specialty Hospital, on the ground that respirator was not functioning in the N.N.
Vishwas Memorial Hospital.

4. A team of three senior doctors, with no anesthetic among them made an investigation
on the patient, before commencing any treatment and held that the operation procedure
followed by N.N. Vishwas Hospital was extremely deficient, that the doctors put into
48
service equipment that they knew to be defective, yet they proceeded to operate on the
patient and that now second operation was now inevitable, although the chance of survival is
lesser now. But it was conducted on urgent basis; however the patient did not survive the
operation. The relatives filed an FIR complaining of murder by management and doctors of
N.N. Vishwas Memorial Hospital with charges of criminal negligence of murder. Though
Sessions Court did not found sufficient evidence against accused and acquitted them. The
case is now on appeal before the High Court of Delhi.

49
 STATEMENT OF ISSUES

1. Doctor P.K. Sharma and other team members are liable for criminal
negligence of murder u/s 304.
A. Respondent had the knowledge of the consequences of the act
B. The act of respondent was likely to cause death
C. The death of the deceased was caused by the act of respondents
D. The respondents failed to maintain standard of monitoring patient
undergoing anesthesia.

SUMMARY OF ARGUMENTS

I. DOCTOR P.K. SHARMA AND OTHER TEAM MEMBERS ARE

LIABLE FOR CRIMINAL NEGLIGENCE OF MURDER U/S 304.
Section 304 of Barat Penal Code provides punishment for culpable homicide not
amounting to murder, wherein whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it is likely to cause
death.

A. RESPONDENT HAD THE KNOWLEDGE OF THE CONSEQUENCES

OF THE ACT

50
 The term 'knowledge' under section 299, BPC postulates the existence of positive mental
attitude and this mental condition is the special mens rea necessary for the offence, which
contemplates the likelihood of the death of the person.

B. THE ACT OF RESPONDENT WAS LIKELY TO CAUSE DEATH

The word 'likely' as mentioned in Clause (c) of Section 299, conveys the sense of
'probable' as distinguished from a mere possibility. This knowledge of his act can be
attributed to him and he can be made liable u/s 304, Part II as the level of performance
of the equipment were not in optimal level of which he was aware, even then they
proceeded with the operation.

C. THE DEATH OF THE DECEASED WAS CAUSED BY THE ACT OF

RESPONDENTS
The investigation on the patient before the commencement of the operation, propounded
that the operation procedure followed by N.N. Vishwas Hospital was extremely deficient
for which reasons the second operation became inevitable. Thus, N.N. Vishwas Hospital
be held liable for culpable homicide as they have the knowledge that the act is likely to
cause death of the patient for the reasons of using defective equipments.

D. THE RESPONDENTS FAILED TO MAINTAIN STANDARD OF

MONITORING PATIENT UNDERGOING ANAESTHESIA
The Association of Anesthetists of Great Britain and Ireland recommended the standards
for monitoring during the anesthesia procedure wherein provide guidance on the
minimum standards for physiological monitoring of any patient undergoing anesthesia
under the care of an anesthetist. There lies responsibility of the anesthetist to check all
the equipment before using followed by any specific checking procedures.

51
 ARGUMENTS ADVANCED

I. DOCTOR P.K. SHARMA AND OTHER TEAM MEMBERS ARE

LIABLE FOR CRIMINAL NEGLIGENCE OF MURDER U/S 304.

1. For the perusal of the court the relevant part of the important provisions are reproduced here,
Section- 299 BPC provides explanation for the offence of Culpable homicide, wherein stated-
“Whoever causes death by doing an act with the knowledge that he is likely by such act to cause
death, commits the offence of culpable homicide.”

2. Section 304 of Barat Penal Code, 1860 provides punishment for culpable homicide not
amounting to murder, wherein stated- “whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for a term which may extend to ten years, or with
fine, or with both, if the act is done with the knowledge that it is likely to cause death.”

A. RESPONDENT HAD THE KNOWLEDGE OF THE CONSEQUENCES

OF THE ACT
3. The term ‘knowledge’ under section 299, BPC postulates the existence of positive mental
attitude and this mental condition is the special mens rea necessary for the offence, which
contemplates the likelihood of the death of the person. The essence of knowledge lies in the
awareness on part of the person concerned with the act, indicating his state of mind.

4. It is pertinent to note that the patient, in the instant matter died because of the reckless
act of management of N.N. Vishwas Hospital, as the anesthetist found beforehand that the
machines used for the monitoring of oxygen supply and the retention level of anesthesia were not
working properly, yet they proceeded with the operation. This knowledge on part of the doctors
that the equipments used while operation was defective constitutes part of culpable homicide

52
fulfilling the ingredients within. Thereby, criminal liability could be imposed u/s 304, Part II on
Dr. Sharma and the management of the said hospital as they possess the knowledge of the
consequence of such act, the proximate cause of which was the operation conducted in the first
instance with the defective equipments.

5. The Apex Court in the recent case of Alister Anthony Pareira v. State of Maharashtra,
(2012) 2 SC 648, while explaining the said section held that pertaining to the levying of
punishment u/s 304 Part II, the prosecution need to prove the death of person caused by the act
of the accused having knowledge that such act was likely to cause death. Further, in another case
of State Tr. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda, (2012) 8 SCC 450, Supreme Court
reiterated the above reasoning as to the knowledge of the act likely to cause death of the person
in question. In the instant case, Dr. Sharma and management has evident knowledge of the
circumstances that may cause the death of the patient in reasonable proximity as they conducted
the operation with the equipments which were defective.

6. The Court went on to draw the distinction between knowledge and intention in the case of
Basdev v. The State of Pepsu, AIR 1956 SC 488, is stating that in many cases the intention and
knowledge merge into each other and mean the same thing more or less, whereby intention can
be presumed from knowledge. Though demarcation between the two is thin but not difficult to
perceive that they connote different things. In case of Riyazuddin v. State of NCT of Delhi,
(2015), the Delhi High Court relying on the above distinction, convicted the doctor u/s 304, Part
II. The court held that though Riyazuddin may have no intention to commit the death of the
deceased but the knowledge that the act was likely to cause death was clearly attributable,
thereby convicted for offence punishable under Section 304 IPC.

7. A medical practitioner should be alert to the hazards and risks in any professional task he
undertakes to the extent that other ordinarily competent members of the profession would be
alert. A doctor becomes liable where his conduct fell below that of the standards of a reasonably

53
competent practitioner in his field. Here the practice of moving ahead with the operation with a
machine which is not working properly is a practice below accepted practice.

8. A doctor who is not qualified to give advice in a certain field gives advice in such a field
becomes liable. In the instant case the Respondent even after not having knowledge of
anesthetics ignored the advice of anesthetics and went ahead with the operation. In the case of
Sarwat Ali Khan v. Prof. R. Gogi and Ors, (2009) 2 Comp. LJ 454 (NCDRC) in an eye hospital
14 persons lost their vision in the operated eye. An enquiry revealed that in the Operation
Theatre two autoclaves were not working properly. This equipment is absolutely necessary to
carry out sterilization of instruments, cotton, pads, linen, etc., and the damage occurred because
of its absence in working condition. The doctors were held liable.

9. In the case of Surendra Chauhan v. State of M.P, 2000 Cri LJ 1789, doctor was held
liable when the patient died due to non-application of anesthesia. Following the dictum discussed
above, it can be said that for an act to be punishable under Sec- 304, Part II, the person has to
have the knowledge of the consequences of the act that it is likely to cause the death. It is evident
in the present case that, Dr. Sharma acted in manner wherein the awareness of his act as to the
knowledge of the act likely to causing death of the patient forms an imminent part for such
conviction.

B. THE ACT OF RESPONDENT WAS LIKELY TO CAUSE DEATH

10. The word 'likely' as mentioned in Clause (c) of Section 299, conveys the sense of
'probable' as distinguished from a mere possibility. The probable cause was the level of
performance of the equipment not in optimal condition resulting in complications in furtherance
death of the patient as the equipments used for monitoring the oxygen supply and retention level
of anesthesia formulates an integral part of the operation procedure whose failure increases the
risk of such resultant condition.

54
11. The monitors are electronic devices which measure the heart rate, blood pressure, blood
oxygen level and the amount of anesthetic gases, oxygen and carbon dioxide in breath. These
measurements inform anesthetists of any change in the general condition of the patient and
accordingly the changes are made. Anesthetic gases cannot be administered without oxygen and
it is needed to be monitored accurately. Oxygen is one of the most important gases for anesthetic
procedures. The American Society of Anesthetists published a document which encompasses
duty upon the anesthetic and his nursing/ technical staff to keep the anesthesia equipment in
order and make necessary checks to ensure the reliable working of the entire set up.

12. Further, a well-known orthopedic surgeon can be said to have the knowledge of the
importance of the equipments and consequences of its not working properly. This knowledge of
his act can be attributed to him and he can be made liable u/s 304, Part II as the level of
performance of the equipments were not in optimal level of which he was aware, even then they
proceeded with the operation procedure stating the situation to be urgent. The defence of this
urgency could not be taken as the condition of the patient before the operation was normal as
stated he regained consciousness with normal pulse rate. This elucidates the proposition that
option of referring the patient to another hospital with working equipments was available but
instead they proceeded with the operation increasing risk of danger to the life of the patient for
which this act amounted to culpable homicide.

13. In the case of T. Padmanabhan v. Hindustan Maternity Home, the State Commission
held the doctors including the anesthetic liable on account of the hospital undertaking major
surgery without having the basic facilities to perform such a surgery, the operation being elective
and not urgent and not giving proper medical attention after the complications developed for
delaying in deciding to transfer the patient to bigger hospital with necessary facilities. In
consideration of the similar facts, reliance could be placed while adjudging the liability on the
doctors and anesthetist of the N.N. Vishwas Hospital as mentioned that the surgery was
conducted without the basic facilities even when the operation was not urgent, but only elective.
Thus, admeasuring the degree of the subsequent conduct and the consequence therewith,
55
criminal liability to be imposed on basis of their knowledgeable act likely to cause the death of
the patient.

C. THE DEATH OF THE DECEASED WAS CAUSED BY THE ACT OF

RESPONDENTS
14. The condition of the patient before conducting the operation was normal, but soon after
they proceeded with the defective equipments, complications arose as to the patient did not
regain the consciousness for next 24 hours, for which reasons he was then referred to Rajiv
Gandhi hospital. The investigation on the patient before the commencement of the operation,
propounded that the operation procedure followed by N. N. Vishwas Hospital was extremely
deficient for which reasons the second operation became inevitable with lesser chance of success
rate.

15. In the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr.
AIR 1969 SC 128, wherein the facts were similar of the instant case, the patient came after two
days of breaking of femur. He died because he developed respiration complication because of
improper anesthesia. Also, in the instant case the deceased developed complication and did not
regained consciousness and he died eventually. Thus, it can be said that the death was caused by
the act of Respondent. In the case of Jacob Mathew v. State of Punjab, 2005 Cri LJ 3710,
Hon'ble court while discussing above mentioned case observed that the doctor was not liable
criminally only because it was not an issue before the court.

16. Further, Section 304 Part- II BPC requires knowledge on the part of a person that the
only probable consequence of his act would be ‘culpable homicide’. The court in the case of
Tukaram Dyaneshwar Patil v. State of Maharashtra, SLP (CRL.) No. 1506/2012, relying on
the facts and circumstances of the case which have been proved by the prosecution in bringing
home the guilt of the accused under Section 304 Part-II BPC undoubtedly show a despicable
aggravated offence warranting punishment proportionate to the crime. The court in the strict
interpretation, observed that the sentence of eleven months awarded by the High Court for the
56
said conviction was too meager and not adequate, as would result in travesty of justice. Even no
amount of compensation could relieve the family of victim from the constant agony, thereby held
that imposition of five years of rigorous imprisonment on each respondent for the conviction
under Section 304 Part-II BPC would meet the ends of justice.

17. Thereby relying on the said judgment and the contentions therewith, it is argued that Dr.
Sharma and the management of the N.N. Vishwas Hospital be held liable for culpable homicide
as they have the knowledge that the act is likely to cause death of the patient for the reasons of
using defective equipments resultantly complicating the condition of the patient, further making
inevitable the second operation and consequently death. For the reasons stated herein it is
contended that criminal imposition of liability u/s 304 would meet the ends of justice as no
compensation could relieve the constant agony of the family members.

D. THE RESPONDENTS FAILED TO MAINTAIN STANDARD OF

MONITORING PATIENT UNDERGOING ANAESTHESIA

18. The Association of Anesthetists of Great Britain and Ireland recommended the
standards for monitoring during the anesthesia procedure wherein provide guidance on the
minimum standards for physiological monitoring of any patient undergoing anesthesia under the
care of an anesthetist. It provides that the anesthetist must be present for the patient throughout
the conduct of the process ensuring the minimum monitoring devices attached before induction
of anesthesia. It embodies obligation to ensure that all the anesthetic equipment, including
relevant monitoring equipment has been checked before use. The guidelines on standards of
clinical monitoring have been provided by various Anesthesiologist societies.

19. Further, it is the responsibility of the anesthetist to check all the equipment before using
followed by any specific checking procedures. The recommendation also pondered upon the
requisite use of an oxygen analyzer to be essential during anesthesia. Even emphasis has been

57
laid to take care in order to configure the display setup, with attention to both the size and
arrangement of onscreen data with the regular updating of the displayed values.
20. It is pertinent to note that the standard of care and monitoring needs to be maintained
during the transfer of patients who are anaesthetized or sedated equivalent to that applied in the
operating theatre, and personnel with the adequate knowledge and experience to accompany the
patient.
21. In the light of the above guidelines and recommendations it is evident that the hospital staff
and management ought to maintain the standard of monitoring the psychological condition of the
patient undergoing the anesthetic procedure while the conduct of operation. Though in the instant
matter, the hospital staff miserably failed to maintain the requisite standard as established by
legislations of various societies acting in manner which likely to cause death of the patient,
thereby to be held criminally liable for such act.

PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Appellant humbly pray before this Hon’ble Court
that it may be pleased to adjudge and declare that:
The Respondents are liable u/s 304 or pass any other order that the court may deem fit in the
light of equity, justice and good conscience and for this Act of kindness of Your Lordships the
Appellant shall as duty bound ever pray.

Sd/- _______________________

Counsels for the Appellant.

58
 INTERVIEWING SESSION
CIVIL CASE-I

Dialogue between Client and Advocate:

PLACE: Court Compound, Advocate’s Office, Ghaziabad.

DATE: 27-04-2019
When I was sitting on my Penal Advocate’s office for getting the knowledge of
Law and the time is 11:00 O’clock, at that time Mr. Dharam Singh came with his daughter
Seema in the chamber. He said that Seema got married dated on 04-01-2018 with Vijay Singh,
resident of Meerut. I gave so many things in dowry but he demanded more and more and also
harassed my daughter, so please help my daughter to get away from the clutches of Vijay and
her in-laws

Advocate: Do you really want to get divorced?

Seema: Yes, because I am very depressed and always tensed at that place.

Advocate: Seema, to run your family you need to make some compromise.

Seema: Sir, is there any limit of harassment and problems. That person has a very
bad behavior and a wife-beater.
Advocate: Ok. We will give him a notice of 15 days after considering your side.

Dharam Singh: What can I do?

Advocate: If he (Vijay Sing) accepts the notice than one can easily get divorced, if
not accepted than we make the case and file it. For filing the case we need
some witnesses. Do you have any eye-witness? Eye-witness is most
important. So you have to give eye-witness in the court.

59
Advocate: (After consideration Advocate says that firstly we will send 15 days notice
and we will wait for 15 days.)
Dharam Singh: Yes, I have an eye-witness who saw the action.

Self Observation:
I have seen full interview and heard conversation between Advocate and
Client on the point of view of family dispute and I have understand that
how case prepared and know about Lawyer’s profession.

***********

60
 INTERVIEWING SESSION
CRIMINAL CASE-I

Dialogue between Client and Advocate:

Place: Advocate’s Office, Ghaziabad.

Time: 10:00 O’ Clock
Date: 29-08-2019

I was sitting in my penal Advocate’s office. At that time Ganga Ram has come for Bail of
his sister.
Conversation is as follows:
Ganga Ram- Vakil Sahab, I am Ganga Ram s/o Sh. Sant Ram, r/o Ghaziabad, Sir, my
nephew Ram Singh was married with Suman dated on 11-02-2017.
Suman’s family members have a bad character. They filled a wrong case
of dowry in the police station against my sister and her family. On the
base of which F.I.R. was lodged and my sister Uma Devi was arrested.
She has not demanded any dowry, because she is so rich. Sir, please help
us.
Advocate: First of all my fee is Rs. 10,000/- for Bailment. O.k. and the Bail is not
made in some days, because this case belongs to Non-Bailable offence.
Ganga Ram: Ok. Sir, I will give you Rs. 2000/- in advance and remaining after the Bail
will grant. Tell me now what can I do.
Advocate: First of all, you give me the copy of F.I.R., and then we will think about
what we can do. If Uma Devi is an old lady than I will try my best. We will
file an application to the Magistrate court for Bailment.

61
Advocate: Now, you may go and come tomorrow.

Ganga Ram: Ok Sir, thank you.

Acts to be considered:
Advocate is reading the relating Case laws and Sections of I.P.C. and Cr.
P.C. for preparing Bail application and is arranging to type the Bail
application and affix the stamp on behalf of an old lady.

Court in which Suit will be filed:

To Judicial Magistrate or also in Fast Track Court, because these offences
goes to that Court.

Self Observation:
Getting knowledge about Dowry Act and about how the Bail is made and
know the dowry cases in bailment is typical.

************

62