TEAM CODE: TC20 D
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
BEFORE THE HON’BLE COURT OF SESSIONS JUDGE,
GIRPUR, BANGOPRADESH
PETITION NO. ___/2023
STATE OF BANGOPRADESH
(PROSECUTION)
V
VIVEK MITRA
(DEFENCE)
FOR OFFENCES CHARGED UNDER:
SECTIONS 302 & 376A
OF THE UNION OF DUSTAN PENAL CODE, 1860
UPON SUBMISSION TO THE HON’BLE LEARNED CHIEF JUDICIAL MAGISTRATE
MEMORIAL ON BEHALF OF THE DEFENCE
1
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
TABLE OF CONTENTS
1. LIST OF ABBREVIATIONS
3
2. INDEX OF AUTHORITIES
4
a. LIST OF CASES
4
b. BOOKS
4
c. STATUTES
5
3. STATEMENT OF JURISDICTION
6
4. STATEMENT OF FACTS
7
5. ISSUES RAISED
9
6. SUMMARY OF ARGUMENTS
10
7. ARGUMENTS ADVANCED
13
8. PRAYER
22
9. CHOICE OF WITNESS
23
2
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
LIST OF ABBREVIATIONS
AIR
All India Report
Anr
Another
Ed
Edition
Hon’ble
Honourable
IILJ
Institute for International Law and Justice
IPC
Indian Penal Code
Mad
Madras
S
Section
SC
Supreme Court
SCC
Supreme Court Cases
UP
Uttar Pradesh
v
versus
3
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
INDEX OF AUTHORITIES
LIST OF CASES
Satish Mehra v Delhi Administration and Anr (1996) SCC 766
Sanjay Gandhi v Union of India (1978) AIR SC 514
Sheoroj Singh Ahlawat v State of U.P (2013) SCC 476
Manakshi Bala v Sudhir Kumar (1994) SCC 142.
Kanti Bhadra Shah v State of West Bengal (2000) SCC 522
Smt. Rumidhar v State of West Bengal (2009) SCC 364
Omkarnath Misra & others v. State NCT Delhi & Anr (2008) SCC 561
Union of India v. Prafulla Kumar Samal & Anr (1979) SCC 4
Sharad Birdhichand Sarda vs. State of Maharashtra (1984)
Hanumant Govind Nagundar vs State of Madhya Pradesh (1952)
Kalu Ram vs State of Rajasthan (1999) AIR 2000 SC 3630
Muthu VS. State of Tamil Nadu (2007) ILLJ 9 MAD
Mukesh & Anr v State for NCT of Delhi & Ors (2014)
Amit v State of Uttar Pradesh (2011) SCC
Rathinam Alias Rathinam v. State Of Tamil Nadu & Anr (2009) SCC
Shankar Kisanrao Khade v State of Maharashtra (2010) SCC
BOOKS
P S A Pillai, Criminal Law (14th Ed LexisNexis 2019)
KD Gaur, Textbook on Indian Penal Code (7th Ed, LexisNexis 2020)
Ratanlal and Dhirajlal, The Law Of Evidence (26th Ed, LexisNexis 2021)
Ratanlal and Dhirajlal, The Code of Criminal Procedure (23rd Ed, LexisNexis, 2022)
4
STATUTES
Indian Penal Code, 1860
The Code of Civil Procedure, 1973
The Indian Evidence Act, 1872
5
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Section 302 & 376A of
Union of Dustan Penal Code, 1860.
Section 302.
S. 302. Punishment for murder
Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall
also be liable to fine.
Section 376A
S. 376A. Punishment for causing death or resulting in persistent vegetative state of victim
Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section
376 and in the course of such commission inflicts an injury which causes the death of the
woman or causes the woman to be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which may
extend to imprisonment for life, which shall mean imprisonment for the remainder of that
person's natural life, or with death.
6
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
STATEMENT OF FACTS
1. Kavita, a 21-year-old lady, is a resident of Girpur District which is situated in
Bangopradesh State, one of the provinces in Union of Dustan. She is a regular
passenger of Dragon passenger train running between Bhedia and Girpur.
2. On 01-03-2023 she was found in an unconscious state in woods near the Girpur
Railway Station around 9:30 p.m. She was taken to Government Medical College
Hospital, Girpur, where she succumbed to injuries around 3pm on 02-03-2023.
3. During police investigation, it transpired that few days before the incident, the
accused one Vivek Mitra, 25 years, a habitual offender and previously convicted by
Courts, had attempted street sexual harassment on a girl named Vanshika, one of the
friends of the victim in her presence, at Girpur Bus Stop.
4. The victim objected to this act of the accused. As a result of this, the accused
threatened both girls with dire consequences of loss of limb and life, if they
complained to the police. The girls however filed a complaint against the accused at
Girpur Police Station and the police registered an FIR against the accused for
outraging the modesty of the girl.
5. On 9th March, 2023, the police took into custody accused Vivek Mitra. DNA samples
collected from the site of the crime and victim’s body were compared with suspect’s
samples. A button of his shirt was found in the women’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.
6. Mr. Alok Kumar, who was in another compartment informed that he heard loud
screams and thuds coming from the ladies’ compartment and he initially 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
7
pushed her hands into the gap of a closing door and threw her out of the moving train
and jumped out himself.
7. Police took up investigation of the matter based on the written complaint of the father
of the victim, Babu Singh. Witness statement under Section 161 of Code of Criminal
Procedure were recorded by the Investigating Officer in course of investigation. The
police arrested the accused and produced him before the Learned Chief Judicial
Magistrate, Girpur. 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
Union of Dustan Penal Code against the accused person.
8
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
ISSUES RAISED
I.
WHETHER AN APPLICATION FOR DISCHARGE OF ACCUSED IS
MAINTAINABLE OR NOT? IF SO, ON WHAT GROUNDS?
II.
ARE THERE SUFFICIENT GROUNDS FOR FRAMING OF CHARGES AGAINST
THE ACCUSED?
III.
CAN THE ACCUSED BE ACQUITTED FROM THE CHARGES OF S.302 DUE
TO LACK OF MENS REA?
IV.
WHETHER CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION
SUFFICIENT TO CONVICT THE ACCUSED FOR CHARGE OF MURDER?
V.
WHETHER THE OFFENCE COMMITTED BY THE ACCUSED TANTAMOUNT
TO THE RAREST OF RARE CASE AND SHOULD BE TRIED IN A FAST-TRACK
COURT?
9
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
SUMMARY OF ARGUMENTS
I.
WHETHER AN APPLICATION FOR DISCHARGE OF ACCUSED IS
MAINTAINABLE OR NOT? IF SO, ON WHAT GROUNDS?
It is humbly submitted that the application for discharge is not maintainable because the
evidence against the accused is largely circumstantial. The button found at the crime scene
and traces of semen do not definitively establish the accused's involvement in the crime.
DNA samples and traces of semen were collected from the crime scene and the victim's body,
but this evidence relies on forensic analysis and interpretation and does not directly
demonstrate the accused's actions or intentions. The presence of scratch marks on the victim's
fingernails is indicative of a struggle, but does not directly identify the accused as the
perpetrator. Vanshika Gupta's statement about a previous incident involving the accused's
harassment is relevant to establish the accused's previous behavior, but does not directly link
him to the specific incident involving Kavita. Indian law places significant emphasis on direct
evidence in criminal cases, and there is a notable absence of direct evidence conclusively
linking the accused to the alleged crime. It is therefore contended that the application for
discharge should be upheld.
II.
ARE THERE SUFFICIENT GROUNDS FOR FRAMING OF CHARGES
AGAINST THE ACCUSED?
It is humbly submitted that the evidence presented by the prosecution is circumstantial and
does not establish a direct link between the accused and the crime. In Indian law, the principle
of circumstantial evidence is well recognized. Circumstantial evidence is defined as evidence
that, when considered in its totality, leads to a reasonable inference of the accused's guilt,
even if it does not provide direct proof of the crime. The presence of a button from Vivek's
shirt in the women's compartment is a key piece of circumstantial evidence. it does not
definitively establish that he committed the alleged crimes. The button could have been
dislodged or misplaced under various circumstances, and without additional context, it does
not directly implicate Vivek in the incident
III.
CAN THE ACCUSED BE ACQUITTED FROM THE CHARGES OF S.302
DUE TO LACK OF MENS REA?
10
It is humbly submitted that the accused did not possess the necessary intent to commit
murder. It can be claimed that the act was impulsive or accidental, and therefore, does not
meet the criteria for murder. As there was Lack of Direct Evidence due to semen traces are
circumstantial and do not directly establish the accused's actions during the incident; While a
button from the accused's shirt was found in the women's compartment, it does not directly
establish his actions during the incident; Absence of Specific Details on Intent: Lack of Mens
Rea (Criminal Intent): The accused did not possess the necessary intent to commit murder.
IV.
WHETHER CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION
SUFFICIENT TO CONVICT THE ACCUSED FOR CHARGE OF MURDER?
It is humbly submitted that the circumstantial evidence presented by the prosecution is not
definitive proof of guilt. They challenge the reliability or methodology of expert opinions and
highlight the lack of direct evidence linking the accused to the crime. Specifically,
questioning the presence of the accused's button at the crime scene, arguing that it can be
explained in various ways. It is challenging the interpretation of the victim's autopsy findings
and the reliability of DNA and semen testing. Therefore, emphasizes that Indian law places
significant emphasis on direct evidence, which is lacking in this case. They argue that the
prosecution's case is largely built on circumstantial evidence, which is not enough to sustain a
conviction. The credibility of witnesses or the reliability of forensic evidence is challenged.
Additionally arguing that there are alternative explanations for the evidence presented by the
prosecution, which creates reasonable doubt about the accused's guilt. It is concluded that the
evidence against the accused is insufficient to frame charges. Valid concerns about the
reliability and interpretation of circumstantial evidence and expert opinions are raised.
Highlighting the lack of direct evidence linking the accused to the crime.
V.
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 submitted that this case should not be categorized as the "rarest of rare." While
the crime is undoubtedly serious, it does not meet the exceptional criteria that warrant a fasttrack trial and the harshest possible punishment.
11
Specifically, the crime was not pre-meditated. Vivek Mitra has no history of violent offenses.
There is no evidence to indicate that he has a pattern of engaging in similar violent or heinous
acts. He is a young individual with the potential to reform and reintegrate into society. There
may be potential mitigating circumstances that influenced his actions. The tragic outcome
was not intended. It therefore contends that this case should be considered in the light of
these factors, and that a lesser punishment would be more appropriate. In addition to the
above, it is humbly submitted that the death penalty is a cruel and unusual punishment, and
that it is not an effective deterrent to crime. They may also point to the possibility of
wrongful conviction, and the importance of ensuring that all defendants receive a fair trial.
The goal of the argument is to convince the court that Vivek Mitra does not deserve the
harshest possible punishment, and that he should be given a chance to rehabilitate and
reintegrate into society.
12
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
ARGUMENTS ADVANCED
I.
WHETHER AN APPLICATION FOR DISCHARGE OF ACCUSED IS
MAINTAINABLE OR NOT? IF SO, ON WHAT GROUNDS?
It is humbly submitted before the court that if the defence can demonstrate that there is
insufficient evidence to even hold the accused accountable, a discharge application can be
upheld. Lack of prima facie evidence, suspect witness testimony, or strong defences against
the allegations could all be grounds for discharge. However, in this case, the application for
discharge is maintainable under the following grounds:
a. Lack of Direct Evidence:
Indian law places a significant emphasis on direct evidence in criminal cases. In this scenario,
there is a notable absence of direct evidence conclusively linking the accused to the alleged
crime. The primary evidence against the accused is circumstantial.
i. Absence of Direct Eyewitnesses: In the statement provided by Mr. Alok Kumar, a
witness to the incident, he mentioned that he was in the general compartment behind
the ladies' compartment and only heard the struggle. He did not directly witness the
accused's actions inside the compartment. This highlights the absence of a direct
eyewitness account to the alleged crime.
ii. No Direct Observation of the Assault: Mr. Alok Kumar's statement further
clarifies that he did not directly observe the accused assaulting the victim. He
mentioned that he pulled the train's emergency chain to stop it, but by the time he
reached the compartment, the incident had already occurred.
iii. Nature of Evidence Found:
1. Button from the Accused's Shirt: It's mentioned in the story that a button
from the accused's shirt was found in the women's compartment. While this is
indicative that the accused may have been present, it does not directly
establish his actions during the incident. The button's presence alone does not
prove that he committed the alleged crimes. It could have fallen there under
various circumstances.
13
2. DNA Samples and Semen Traces: The story mentions that DNA samples
were collected from the crime scene and the victim's body, and traces of semen
were found. While this is significant evidence, it still relies on forensic
analysis and interpretation. It does not directly show the accused's actions or
intentions. The presence of DNA and semen only establishes a physical
connection but does not conclusively prove criminal intent. Furthermore, it's
crucial to consider the circumstances under which the DNA and semen were
found. It's not explicitly stated that the accused's DNA or semen was found in
a compromising position, which is an important distinction when determining
culpability.
3. Fingernail Scratch Marks: The story mentions that the victim had scratch
marks on her fingernails, which could suggest a struggle. It's important to note
that while this indicates resistance, it does not directly identify the accused as
the perpetrator. It's possible that the victim may have defended herself against
an unidentified attacker.
iv. Testimony of Vanshika Gupta:
It's important to note that while this testimony is relevant in showing a pattern of
behaviour, it does not directly implicate Vivek in the incident involving Kavita. In
legal terms, this testimony establishes a modus operandi, which can be used to infer
motive or intent. Nonetheless, it does not serve as direct evidence tying him to the
specific crime. In the context of the incident involving Kavita, there is a need for
additional evidence that directly places Vivek at the scene of the crime or establishes a
concrete link between him and the alleged actions. As of now, the provided evidence,
including the button from Vivek's shirt, DNA samples, and traces of semen, remain
circumstantial and do not definitively connect him to the crime. They indicate a
potential presence, but do not establish a direct link to the actions described in the
case. Therefore, Vanshika's testimony, while important for establishing a pattern of
behaviour, must be considered in conjunction with other evidence in order to build a
stronger case against Vivek.
b. Circumstantial Nature of the Evidence: The evidence against the accused is largely
circumstantial. For instance, the button found at the crime scene and traces of semen do not
definitively establish the accused's involvement in the crime.
14
i. Button from the Accused's Shirt: While a button from the accused's shirt was
discovered at the crime scene, it's crucial to highlight that this evidence, on its own,
does not directly implicate the accused in the crime. Indian law necessitates a strong
emphasis on direct evidence in criminal cases. The button's presence alone does not
establish the accused's actions during the incident.
ii. DNA Samples and Semen Traces: DNA samples and traces of semen were
collected from the crime scene and the victim's body. While this evidence is
significant, it must be noted that it relies on forensic analysis and interpretation. It
does not directly demonstrate the accused's actions or intentions. The presence of
DNA and semen only establishes a physical connection, but does not conclusively
prove criminal intent.
iii. Fingernail Scratch Marks: The presence of scratch marks on the victim's
fingernails is indicative of a struggle. However, it's important to highlight that while
this suggests resistance, it does not directly identify the accused as the perpetrator. It's
possible that the victim may have defended herself against an unidentified attacker.
iv. Testimony of Vanshika Gupta: Vanshika Gupta's statement about a previous
incident involving the accused's harassment is relevant to establish the accused's
previous behavior. However, it does not directly link him to the specific incident
involving Kavita.
v. Lack of Direct Evidence: Indian law places significant emphasis on direct
evidence in criminal cases. In this scenario, there is a notable absence of direct
evidence conclusively linking the accused to the alleged crime. The primary evidence
against the accused is circumstantial.
II.
ARE THERE SUFFICIENT GROUNDS FOR FRAMING OF CHARGES
AGAINST THE ACCUSED?
It is humbly submitted that the evidence presented by the prosecution is circumstantial and
does not establish a direct link between the accused and the crime. They may also challenge
the credibility of witnesses or the reliability of forensic evidence.
15
i. The evidence presented by the prosecution is largely circumstantial and lacks a direct link
between the accused, Vivek Mitra, and the alleged crime1. Circumstantial evidence relies on
inference and interpretation to connect the accused to the incident, rather than providing
concrete proof of guilt2.
ii. The presence of a button from Vivek's shirt in the women's compartment is a key piece of
circumstantial evidence. While it suggests his presence, it does not definitively establish that
he committed the alleged crimes. The button could have been dislodged or misplaced under
various circumstances, and without additional context, it does not directly implicate Vivek in
the incident.
iii. The DNA samples and traces of semen found on the victim's body and clothes are
significant, but they too are circumstantial3. They establish a physical connection between
Vivek and the victim, but do not prove intent or actions. Additionally, it's important to
consider the circumstances under which this evidence was collected. The story does not
explicitly state that the DNA and semen were found in a compromising position, leaving
room for interpretation.
iv. The testimony of witnesses, while valuable, may face challenges regarding their
credibility or potential biases. For instance, Vanshika Gupta's statement about a previous
incident with Vivek establishes a pattern of behaviour, but it does not directly link him to the
specific incident involving Kavita. It serves as an indicator of character but may not be
sufficient to conclusively establish guilt. In Indian law, the principle of circumstantial
evidence is well recognized. Circumstantial evidence is defined as evidence that, when
considered in its totality, leads to a reasonable inference of the accused's guilt, even if it does
not provide direct proof of the crime.
III.
CAN THE ACCUSED BE ACQUITTED FROM THE CHARGES OF S.302
DUE TO LACK OF MENS REA?
It is humbly submitted that the accused did not possess the necessary intent to commit
murder. They could claim that the act was impulsive or accidental, and therefore, does not
1
Sharad Birdhichand Sarda vs. State of Maharashtra (1984)
Hanumant Govind Nagundar vs State of Madhya Pradesh (1952)
3
Kalu Ram vs State of Rajasthan (1981)
2
16
meet the criteria for murder4. Vivek Mitra did not possess the necessary intent (mens rea) to
commit murder. It is contended that the act was impulsive or accidental, which, according to
them, does not meet the criteria for murder. Evidence from the story that could support this
argument includes:
i.
Witness Testimony of Mr. Alok Kumar:
Mr. Alok Kumar, a witness, reported hearing loud screams and thuds from the ladies'
compartment. He initially thought a robbery was taking place. This suggests that the situation
escalated suddenly, indicating a lack of premeditation. The statement "the situation escalated
suddenly, indicating a lack of premeditation" suggests that in legal terms, this implies that the
accused did not have a predetermined intention or plan to commit the alleged crime, which,
in this case, is murder. Premeditation is a crucial element in establishing the crime of murder.
The situation escalated suddenly and without prior intent, it suggests that the accused did not
have the opportunity to form a deliberate plan to commit murder. It can be demonstrated that
the actions of Vivek Mitra were impulsive and not premeditated. Instead, it might contend
that the act, while still tragic, was a result of a sudden and unpremeditated series of events.
ii.
Absence of Specific Details on Intent:
1. Lack of Direct Evidence: The primary evidence against the accused is
circumstantial. The presence of a button from the accused's shirt, DNA
samples, and semen traces are circumstantial and do not directly establish the
accused's actions during the incident.
2. Button from the accused’s Shirt: While a button from the accused's shirt
was found in the women's compartment, it does not directly establish his
actions during the incident. The button's presence alone does not prove that he
committed the alleged crimes.
3. DNA Samples and Semen Traces: DNA samples and traces of semen were
found, indicating a physical connection, but they do not conclusively prove
criminal intent or actions. It does not prove that the semen traces were found
on the victim’s body just because the victim was in a compromising position.
4
Muthu VS. State of Tamil Nadu (2007) ILLJ 9 MAD
17
4. Fingernail Scratch Marks: The victim had scratch marks on her
fingernails, suggesting a struggle, but it does not directly identify the accused
as the perpetrator. She may have defended herself against an unidentified
attacker.
5. Sufficiency of Grounds for Framing Charges: The defense argues that the
evidence presented by the prosecution is circumstantial and does not establish
a direct link between the accused and the crime. They may challenge the
reliability of witnesses or the interpretation of forensic evidence.
6. Absence of Specific Details on Intent: The available evidence primarily
indicates a violent struggle, but there is no specific information that definitively
points to a
premeditated intent to commit murder. The scratches and bloodstains suggest a
reaction to a sudden, intense situation rather than a calculated plan.
7. Lack of Mens Rea (Criminal Intent): The accused did not possess the
necessary intent to commit murder. They claim the act was impulsive or
accidental, and therefore, does not meet the criteria for murder. The situation
escalated suddenly, indicating a lack of premeditation.
iii.
Medical Examination Findings:
1. First Injury - Lacerated wound with surrounding abraded contusion on the
forehead: While this injury is serious, it does not necessarily suggest an intent
to murder. Such injuries can occur during physical altercations where the victim
is struck or falls.
2. Second Injury - Aspiration of blood leading to anoxic brain damage: This
injury resulted from a position that could be consistent with a sexual assault.
However, it does not provide conclusive evidence of an intent to murder. It
suggests that the victim may have suffocated due to the position she was in
during the alleged assault.
3. Scratch Marks and Abrasions: The presence of scratch marks on the
victim's fingernails and abrasions on her pelvic area indicate a struggle. They
do not directly point to premeditated murder. Instead, they suggest that the
victim fought back or resisted her attacker.
4. Bloodstains and Trauma: The autopsy report mentions multiple areas of
haemorrhage in the brain, which could result from a blunt force injury. However,
18
the report does not conclusively determine the intent behind these injuries. They
could have occurred during a physical altercation or in the heat of the moment.
IV.
WHETHER CIRCUMSTANTIAL EVIDENCE AND EXPERT OPINION
SUFFICIENT TO CONVICT THE ACCUSED FOR CHARGE OF MURDER?
It is humbly submitted that the circumstantial evidence, while suggestive, is not definitive proof
of guilt. They may challenge the reliability or methodology of expert opinions presented by the
prosecution.
i. Button from the Accused's Shirt: While a button from the accused's shirt was found
at the crime scene, it does not conclusively establish his guilt. The presence of the
button can be explained in various ways and does not directly link the accused to the
alleged crimes.
ii. DNA Samples and Semen Traces: The DNA samples and traces of semen found on
the victim's body and clothes are significant pieces of evidence. However, the defense
questions the methodology or handling of this evidence. We argue that there may be
alternate explanations for the presence of DNA and semen such as Secondary transfer,
Consensual Sexual Activity, Environmental factors,
iii. Expert Opinion on Autopsy Findings: The defense challenges the expert opinion
regarding the autopsy findings. They could question the interpretation of injuries and
whether they definitively point to a deliberate act of murder. The defense may seek their
own expert opinion to provide an alternative analysis.
1. Lack of Direct Evidence: Indian law places significant emphasis on direct
evidence in criminal cases. In this scenario, there is a notable absence of direct
evidence conclusively linking my client to the alleged crime. The primary
evidence against Mr. Mitra is circumstantial.
2. Button from the Accused's Shirt: While it is true that a button from my
client's shirt was found in the women's compartment, it is imperative to note
that this alone does not prove that he committed the alleged crimes. The button's
presence could be attributed to various circumstances.
3. DNA Samples and Semen Traces: The DNA samples and traces of semen
found at the crime scene, while significant, still rely on forensic analysis and
interpretation. They do not directly show my client's actions or intentions. The
19
presence of DNA and semen establishes a physical connection but does not
conclusively prove criminal intent.
4. Fingernail Scratch Marks: The presence of scratch marks on the victim's
fingernails suggests resistance, which is a crucial point to consider. However, it
does not directly identify my client as the perpetrator. It is possible that the
victim defended herself against an unidentified attacker.
5. Testimony of Vanshika Gupta: While Ms. Gupta's testimony regarding a
previous incident is relevant to establish my client's previous behavior, it does
not directly link him to the specific incident involving Kavita. This points to the
fact that the evidence against Mr. Mitra is not direct.
6. Sufficiency of Grounds for Framing Charges: the evidence presented by
the prosecution is largely circumstantial and does not establish a direct link
between my client and the crime. We may also challenge the credibility of
witnesses or the reliability of forensic evidence. In summary, while
circumstantial evidence and expert opinions are important components of the
case, the defense may raise valid concerns about their reliability and
interpretation. They may argue that there are alternative explanations for the
evidence presented by the prosecution, which creates reasonable doubt about
the accused's guilt. This underscores the importance of a thorough and unbiased
examination of all evidence in the case.
V. 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 submitted against the categorization of this case as the "rarest of rare." It is
contended that while the crime is undoubtedly serious, it may not meet the exceptional criteria
that warrant a fast-track trial and the harshest possible punishment by reasoning under the
following grounds:
i. Lack of Pre-meditation: It is important to note that the incident involving Vivek
Mitra was not pre-meditated. There is no evidence to suggest that he had planned this
crime in advance. Instead, it appears to have been a highly unfortunate and impulsive
act, driven by a sudden burst of rage and desperation.
20
ii. Absence of Previous Convictions for Violent Crimes: Vivek Mitra does not have
a history of violent offenses. This incident, while undeniably tragic, appears to be an
isolated event in an otherwise non-violent criminal record. This suggests that he may
not pose a prolonged threat to society as it states in the Arrest memo that he does not
possess to commit a crime if released on bail.
iii. No Pattern of Similar Offenses: There is no evidence to indicate that Vivek Mitra
has a pattern of engaging in similar violent or heinous acts. This incident, while
undeniably serious, may not be indicative of a broader inclination towards extreme
violence.
iv. Potential for Rehabilitation: It is important to consider the possibility of
rehabilitation for Vivek Mitra. He is a young individual who, given the right support
and resources, may have the potential to reform and reintegrate into society as a lawabiding citizen.
v. Consideration of Mitigating Circumstances: It is crucial to consider any potential
mitigating circumstances that may have influenced Vivek Mitra's actions. This could
include factors such as emotional distress, mental health issues, or external pressures
that may have played a role in the commission of the crime.
vi. Reflect on the Tragic Outcome: While recognizing the severity of the crime, it is
important to acknowledge that the tragic outcome was not intended. Vivek Mitra's
actions, though reprehensible, led to unintended consequences that cannot be undone.
21
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
PRAYER
Wherefore,in the light of the issues raised, arguments advanced, reasons given and
Authorities cited, this hon’ble court may be pleased to:
I.
HOLD THAT THE APPLICATION FOR DISCHARGE OF THE ACCUSED IS
NOT MAINTAINBLE
II.
HOLD THAT THERE ARE INSUFFICIENT GROUNDS IN ORDER TO FRAME
CHARGES AGAINST THE ACCUSED.
III.
HOLD THE ACCUSED AS ACQUITTED OF THE CHARGE OF S.302 DUE TO
ABSENCE OF MENS REA
IV.
HOLD THAT THE CIRCUMSTANCIAL EVIDENCE AND EXPERT OPINION IS
INSUFFICIENT TO CONVICT THE ACCUSED FOR CHARGE OF MURDER
V.
HOLD THAT THE OFFENCE DOES NOT MEET THE EXCEPTIONAL CRITERIA
IN ORDER TO BE TRIED IN A FAST TRACK COURT.
AND
ANY OTHER RELIEF THAT THIS HON‟BLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE,
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
22
XAVIER INTRA-XLS TRIAL & ADVOCACY COMPETITION 2023
CHOICE OF WITNESS
NAME
OCCUPATION
ANKUSH MEHRA
INVESTIGATION OFFICER
PRIYA GHOSH
FORENSIC SURGEON
23