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{Statements of Jurisdiction}

STATEMENT OF JURISDICTION

{STATEMENT OF JURISDICTION}

THE APPELLANTS HAS APPROACHED THIS HONBLE HIGH COURT OF

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

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Synopsis Of Facts}

SYNOPSIS OF FACTS

{SYNOPSIS OF FACTS}

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

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That there was sufficient evidence to suggest that after selling the ornaments, the husband
used the money for stabilizing business which was again in the interest of the family.
As an Obiter Dictum, Court stated that joint locker should be operated by mutual consent.
However, in the said case wife had already shown her intention of selling the gold. Aggrieved
by the decision of Family Court Malini filed an appeal with the High Court of Rajasthan with
the contention that gold ornaments come within the purview of Stridhan. The case is pending.

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{Synopsis of Facts}

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

The court of Session gave life imprisonment to Raj Kumar under section 302 of IPC.
However, the decision of the Court of Session was challenged by Raj Kumar, as he relied on
the Second Dying Declaration given in the presence of Doctors and Police Personnel. The
High Court clubbed both the appeals, one by Malini on the contention of Stridhan and other
by Raj Kumar.

Arguments Presented}

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ARGUMENTS PRESENTED

{ARGUMENTS PRESENTED}

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

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

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

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

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

ISSUE 4: WHETHER THE GOLD ORNAMENTS COMES WITHIN THE

PURVIEW OF STRIDHAN UNDER SECTION 14 OF HINDU SUCCESSION ACT,
1956?

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{Summary of Arguments}

SUMMARY OF ARGUMENTS

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Summary of Arguments}

SUMMARY OF ARGUMENTS

{SUMMARY OF ARGUMENTS}

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

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

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

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

It is humbly submitted that the statement given by Malini in presence of doctors and police
personnel comes within the purview of dying declaration under section 32(1) of the Indian

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Evidence Act, 1872. Dying Declaration means the statement given just before death. When
two dying declaration are there the last declaration is admissible. The Dying declaration made
in presence of doctors and police personnel is relevant.

{Summary of Arguments}

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

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

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

ISSUE 4: WHETHER THE GOLD ORNAMENTS COMES WITHIN THE

PURVIEW OF STRIDHAN UNDER SECTION 14 OF HINDU SUCCESSION ACT,
1956?

It is humbly submitted to the kind perusal of this Jurisdiction that the Gold Ornaments does
not come within the purview of Stridhan as stated under section 14 of Hindu Succession Act,
1956. It is contended that Malini Voluntarily offered to sell the gold ornaments which were
kept in the joint locker. Gold Ornaments kept in the Joint Bank Locker were jointly accessed
by both. It is contended that the property was not dishonestly misappropriated or used by Mr.
Raj Kumar, rather than it was used in covering the loss incurred in the business.

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{Arguments Advanced}

ARGUMENTS ADVANCED

{Arguments Advanced}

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{Arguments Advanced}

ARGUMENTS ADVANCED

{ARGUMENTS ADVANCED}

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

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

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

(3.) The counsel would like to bring the attention of the court to the fact that it would be
both improper and unjust to consolidate two proceedings which are based on entirely
different cause of actions and due to the fact that such proceedings are based on entirely
different set of principles, the broad objective of justice would be defeated in case, the two
proceedings are continued together.5

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

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

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

5 Section 374, CrPC, 1973

6 Section 151, CPC, 1908

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{Arguments Advanced}

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{Arguments Advanced}

II. WHETHER THE STATEMENT GIVEN BY MALINI IN THE PRESENCE OF

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

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

[A]. DYING DECLARATION MEANS THE STATEMENT MADE JUST BEFORE DEATH

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

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

(8.) It is contended that the apprehension of death was very high and just after making the
last statement Malini died due to burn 11. Where there is more than one dying declaration one
cannot be rejected because of the contents of the other10. Statement must relates to the cause

7 Sant Gopal v. State of U.P., 1995 CrLJ 312 (All)

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

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of death or exhibits circumstances leading to his/her death 11, and circumstances stated must
relate to death12, Malini had already stated that she herself poured petrol over her 15.it is
Submitted that a person would not like to meet his maker with a lie in his mouth. The
requirements are dispensed with13.

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

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

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

2.1 DYING DECLARATION RECORDED BY DOCTOR

(11.) It is humbly submitted that dying declaration recorded in presence of doctor is

sufficient to convict or release a accused 17. The essential element is the presence of a
witness18 in order to attest and to make the information reliable. A dying declaration made
before a judicial magistrate has a higher judicial value 19. But there is no requirement that it

11 Sharad Birdhichand Sharda v. State AIR 1984 SC 1622

12 Narain Singh v. State of Haryana AIR 2004 SC 1616
15
8 Fact Sheet
13 Dasrath v. State of M.P., AIR 2008 SC 316
14 Lingaiah v. State of A.P., 1994 CrLJ 1242 (AP)
15 Harbans Lal v. State of Haryana, 1993 CrLJ 75
16 State of Maharashtra v. Sanjay, AIR 2005 SC 97
17 Malik Ram Bhoi v. State of Orissa, 1993 CrLJ 984
18 Niru Nanhar Becck v. State of Orissa, 1995 CrLJ 2412
19 Samadhan Dhudaka Koli v. State of Maharashtra, AIR 2009 SC 1059

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should be always recorded by a magistrate. However made, if it is found to be voluntary and

true, it can be made basis of conviction without further corroboration20.

2.2 DYING DECLARATION RECORDED BY POLICE

(12.) It is humbly submitted that in emergency a dying declaration can be recorded without
calling a magistrate by police21. A clear and corroborated dying declaration can be rejected
just only because it was recorded by a police officer 22. Recording of a statement by a
magistrate is not in itself a proof of truthfulness23. Thus, it is submitted that statement made
before a police officer may be classified as a dying declaration if it relevant.

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

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

(14.) It is humbly submitted that where a deceased stated in his dying declaration that his
own son has injured him, it was held that he would not speak falsely against his son and the
dying declaration was truthful and reliable24. Ina bride burning case, the victim implicated her
mother-in-law alone in her dying declaration, though she was not at good terms with her
husband and father-in-law. It was held that the declaration pointed towards its truthful nature
and it could be relied upon25. It was held by the court that where the victim was severely

20 S.P. Devaraju v. State of Karnataka, AIR 2009 SC 1725

21 Pearilal Rana v. State of W.B., 1992 CrLJ 2644 (Cal)
22 Ram Singh v. State (Delhi Admn), 1995 CrLJ 3838 Delhi
23 Kanchy Komuramrma v. State of A.P., 1996 SCC (Cri) 31
24 Bellana Kannam Naidu v. State of U.P., 1994 CrLJ 1146 (AP)
25 Yazi Venkataratnam v. State, 1993 CrLJ 3240 (AP)

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injured and died next day, the court said that the detailed account of how the accident took
place could not have been expected26.

(15.) It is humbly submitted that various statement in the dying declaration showed an
inherent attempt by the deceased to falsely implicate the accused. The declaration was found
not truthful. The court did not interfere in the acquittal27. It is submitted too that the word
death in S.32 is inclusive of suicidal or homicidal death 28. Statement by a person as to the
cause of his death becomes relevant when the cause of his death comes into question even if
the person was not expectation of death at the time of making the statement29.

(16.) It is humbly submitted that in a case 30 where a victim stated that she specifically
brought to the hospital on the condition that she would give a wrong statement. A subsequent
statement declaration was consistent with the second. The court relied upon the second dying
declaration. Therefore, it is humbly submitted before this Honble High Court that the
declaration made by Malini in the presence of Doctors and police personnel is admissible,
relevant and comes within the purview of section 32(1) of the Indian Evidence Act, 1872.

26 Laljit Sigh v. State of U.P., 2001 CrLJ 143

27 State of Rajasthan v. Yusuf, AIR 2009 SC 2674
28 Kans Raj v. State of Punjab, 2000 CrLJ 2993
29 Thakur Das v. State of H.P., 1992 CrLJ 2415 (HP)
30 Sher Singh v. State of Punjab, AIR 2008 SC 1426

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{Arguments Advanced}

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

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

[A]. ACT DOES NOT COME WITHIN THE PURVIEW OF SECTION 302 OF IPC

(18.) It is humbly submitted that the act committed by Mr. Raj Kumar does not come within
the purview of section as Malini already made a statement in which she stated that she herself

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{Arguments Advanced}

poured petrol and burnt herself31. Various statements in the dying declaration showed an
inherent attempt by the deceased to falsely implicate the accused32.

1.1 CIRCUMSTANTIAL EVIDENCE

(19.) It is humbly submitted that in the present case the circumstances also shows that Raj
Kumar has done nothing. Witnesses may lie but not the circumstances 33. Circumstantial
evidences may be used to prove that whether the person is guilty or not but the court should
take caution34. As in the present case the circumstances clearly shows that Raj Kumar was
unconscious and a high dose of zolpidem was found in his blood. As high dose of sleeping
pills are very risky they can even cause a persons death. It is contended too that in cases
where circumstantial evidences are used it should be proved beyond reasonable doubt 35.
Infirmity or lacuna in the prosecution case cannot be cured by false defence pleas 36. Therefore
circumstantial evidences show that Mr. Raj Kumar has not done any act which comes within
the purview of section 302 of IPC.
1.2 MALINI ALREADY STATED IN HER DYING DECLARATION THAT SHE HERSELF POURED

PETROL

(20.) It is humbly submitted that Malini already stated in her dying declaration that she
herself poured petrol over her. It is to be noticed that where the victim give various statement
then the doubt come into existence that whether the victim is trying to falsely implicate the
accused37. Therefore, it is humbly submitted to this Jurisdiction that there was no act done
which comes within the purview of section 302 of IPC and thereby conviction of Mr. Raj
Kumar is against the principle of Justice. Therefore it is pleaded before this Honble court that
Mr. Raj Kumar has not done any act which comes within the purview of section 302 of IPC.

31 8 Fact Sheet
32 State of Rajasthan v. Yusuf, AIR 2009 SC 2674
33 Vilas Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158
34 State of Haryana v. Ved Prakash, AIR 1994 SC 468
35 Bhagat Ram v. State of Punjab, AIR 1954 SC 621
36 Arun Bhakta v. State of W.B., AIR 2009 SC 1228
37 State of Haryana v. Ved Prakash, AIR 1994 SC 468

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{Arguments Advanced}

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

(21.) It is humbly submitted that the essentials of section 304B are not found as Mr. Raj
Kumar was asking for help in order to cover the loss which was incurred in business and he
also promised that he would return all the money once the business got stable 38. It is
submitted that the matter need to be examined on the facts and circumstances of the case 39
and thereby failing the proximity test. The main ingredient for attracting the provision of this
section is cruelty and harassment in connection with the demand for dowry 40, and in the
present case the connection is not established as Mr. Raj Kumar had already promised to
return the money once his business is stable.

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

(22.) It is humbly submitted that it should be established that such cruelty or harassment
should take place soon before death41, but in the present case that chain is not established as
Mr. Raj and Malini decided to reconcile and in order to have reconciliation they have planned
for vacations in a hill station. In a case 42 it was held that all the ingredients of this section
must exist conjunctively. There must be nexus between cruelty and harassment to raise the

38 2 Fact Sheet
39 Ashok Kumar v. State of Haryana, 2010 (12) SCC 350
40 Kasmir Kaur v. State of Punjab, AIR 2013 SC 1039
41 Keshab Chandra Panda v. State of Orissa, 1995 CrLJ 174 (Ori)
42 Nand Kishore v. State of Maharashtra 1995 CrLJ 3706 (Bom)

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Presumption of dowry death under section 113B of the evidence act. In the present case that
nexus is missing clearly. A general interpretation of the meaning of Dowry as stated in
Dowry Prohibition Act, 1961 which says that there should be demand for valuables or
securities43 but in the present case the demand is not for that purpose. The demand in this case
is for covering the loss incurred in business and that payment would be returned once the
business got stable.

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

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

(24.) It is humbly submitted that the greed for dowry and the dowry system as an institution
calls for severest condemnations by all sections46. As cruelty is a sensitive issue it should
dealt with utmost care as even a small mistake can destroy the life of any person. Harassment
of woman with a view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or on account of failure by her to meet such
demand47. It is humbly submitted that a lady poured kerosene oil and it was discovered that
her husband used to beat her after taking liquor and he used to borrow money from the
villagers for the purpose. The court held that this amounted to cruelty 48, but in the present no
such ingredient has been seen, it was just a simple demand for the purpose of recovering the
loss incurred in business with a promise to repay the same amount once the business got
stable.

(25.) Therefore it is humbly submitted that no act was done by Mr. Raj Kumar which comes
within the purview of Sections 302, 304B and 498A of the Indian Penal Code . It

43 Madhu Sudan Malhotra v. K.C. Bhandari, (1998) Supp. 1 SCC 424

44 Suvetha v. State, (2009) 6 SCC 757
45 Keshab Chandra Panda v. State of Orissa, 1995 CrLJ 174 (Ori)
46 Bhagwant singh v. Commissioner of Police, AIR 1983 SC 826
47 Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121
48 Pachipala Laxmaiah v. State of A.P., 2001 CrLJ 4063 (AP)

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25

was a act just to ensure the proper functioning of business in order to earn his livelihood for
his family and it would be a great injustice if he might be punished for the act which he has
not done. It is contended too that it there are two view one pointing the guilt of the accused
and other one pointing his innocence, the court must adopt the view favorable to the
accused49.

49 Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842

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{Arguments Advanced}

IV. WHETHER THE GOLD ORNAMENTS COMES WITHIN THE PURVIEW OF

STRIDHAN UNDER SECTION 14 OF HINDU SUCCESSION ACT, 1956?

(26.) It is humbly submitted to the kind perusal of this Jurisdiction that the Gold Ornaments
does not come within the purview of Stridhan as stated under section 14 of Hindu Succession
Act, 1956. It is contended that Malini Voluntarily offered to sell the gold ornaments which
were kept in the joint locker [A]. Gold Ornaments kept in the Joint Bank Locker were jointly
accessed by both [B]. It is contended that the property was not dishonestly misappropriated or
used by Mr. Raj Kumar, rather than it was used in covering the loss incurred in the business
[C].

[A]. MALINI VOLUNTARILY OFFERED TO SELL THE GOLD ORNAMENTS

(27.) It is humbly submitted that once a female has alienated the property voluntarily, she
has no right left over that property 50, as in the present case Malini had already offered
voluntarily to Mr. Raj Kumar to sell the gold ornaments 51. It is contended too that the
expression possessed in S. 14(1) means and refers to a right to possession and not
necessarily actual or physical possession, her being not in physical possession matters52.

1.1 VOLUNTARILY

(28.) It is humbly submitted that according to section 39 of IPC, the maxim that every one
must be taken to intend the natural consequences of his/her acts is incorporated in the
definition of voluntarily and thus made S. 39 applicable in every section where the word is
used53. It is submitted too that when Malini voluntarily offered Mr. Raj kumar to sell the
property from that time onwards the right of Malini was over 54. Section implicitly lays down
the principle that a man/woman is presumed to intend the probable consequences of his/her
act55. The Supreme Court has held that where a partner is entrusted with property under

50 Nallan v. Vellaiyankudumban A.I.R. 2001 Mad. 6

51 1 Fact Sheet
52 Mahesh Chand Sharma v. Raj Kumari Sharma A.I.R. 1996 S.C. 869
53 Vallappa v. Bheema Rao, A.I.R. 1918 Mad 136 (FB)
54 1 Fact Sheet
55 Dr. Meenu Bhatia Prasad v. State, 2002 CrLJ 1674 (Del.)

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27

Special contract and he holds that property in a fiduciary capacity, any misappropriation of
that property would amount to criminal breach of trust56.

[B]. GOLD ORNAMENTS KEPT IN THE JOINT LOCKER WERE ACCESSED BY BOTH

(29.) It is humbly submitted that gold ornaments were accessed by both 57. It can be stated
then that sufferance of any loss by the victim is not necessary for leading to conviction under
section 406 of IPC58. It is very unreasonable to say that a woman can use her Stridhan to
perform various rituals like funeral of her husband 59, but a husband is not even allowed to
use that for a reasonable thing, it is unjustified and unacceptable.

2.1 IT VIOLATES VARIOUS LAWS IN EXISTENCE

(30.) It is humbly submitted that this concept violates various laws in existence. It violates
Article 14 of the Constitution which talks about Equality. The idea is of providing equal
Justice60, at one side we discuss about providing justice to everyone and on the other hand a
husband who is having access of the locker jointly is not allowed to use that locker for a
reasonable purpose. In Saptapadi, a woman and a man promises each other to help each them
to overcome at difficult times, and without performing the ceremony of Saptapadi a marriage
is not considered as a valid marriage61, and if a husband removes the gold ornament from the

56 Anil Saran v. State of Bihar. AIR 1996 SC 204

57 1 Fact Sheet
58 R. Venkatkrishnan v. CBI, (2009) 11 SCC 737
59 Smt. Kamla Devi v. Mukund Ram AIR 1955 SC 481
60 Sheoshanker v. State of M.P., AIR 1951 Nagpur 53 (FB)
61 Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 S.C. 614
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joint locker with the permission then it is considered as an offence. This is absolutely contrary
and it is against the principle of Saptapadi.

(31.) It is submitted too that rule of law requires that no person shall be subjected to harsh,
uncivilized or discriminatory treatment62. Equality is a dynamic concept with many aspects
and dimensions and it cannot be imprisoned within traditional and doctrinaire limits 63. In a
case64, the doctrine of classification which is involved by the court is not paraphrase of
Article 14 nor is it the objective and the end of this article. It is merely a judicial formula for

62 Rubinder Singh v. Unoin of India, AIR 1983 SC 65

63 Maneka Gandhi v. Union of India, AIR 1978 SC 597
64 R.D. Shetty v. Airport Authority, AIR 1979 SC 1628

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determining whether the legislative or executive action in question is arbitrary and therefore
constituting denial of equality.

(32.) It is therefore contended that joint locker can be accessed by both the person and it is a
valid transaction.

[C]. Mr. RAJ KUMAR DOES NOT DISHONESTLY MISAPPROPRIATED OR USED THE GOLD
ORNAMENTS

(33.) It is humbly submitted that Mr. Raj Kumar has not used the gold ornaments for his
personal use, as it is already cleared from the facts that the gold ornaments were kept as a
security for any kind of problem65. It is a deliberate act on the part of the accused to commit
misappropriation66. In order to misappropriate the accused must dispose the property in
violation of such trust67. If the permission was not granted 68 then Mr. Raj might be punished
but in the present case Malini Voluntarily offered to sell the gold ornaments.

3.1 Mr. RAJ KUMAR REMOVED THE GOLD ORNAMENTS WITH THE GOOD FAITH

(34.) It is submitted too that Mr. Raj Kumar has removed the gold ornaments with the good
faith and that was to recover from the loss which incurred in the business69. Good faith is such
care as an ordinary prudent person would exercise under the conditions existing at the time he
is called upon to act70. The intent and the act, must concur to constitute the crime. Actus non
facit res, nisi mens sit rea signifies that an act must not make a person guilty, unless the mind
is guilty71.

(35.) It is of utmost importance for the protection of liberty of the subject that a court
should always bear in mind that, unless a statute either clearly or by necessary implications
rules out mens rea as a constituent part of a crime, the court should not find a man guilty of
an offence against the criminal law unless he has a guilty mind72.

65 2 Fact Sheet
66 Albano Dias v. State, (1981) CrLJ 677
67 Kailash Kumar Sanwatia v. State of Bihar (2003) 7 SCC 399
68 Bhaskar Lal Sharma v. Monicca (2009) 10 SCC 604
69 1 Fact Sheet
70 In Re: S.K. Sundaram, AIR 2001 SC 2374
71 Young Husband v. Lufting, (1949) 2 KB 354
72 Brend v. Wood, (1946) 62 TLR 462

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(36.) Thus, it is humbly submitted that the gold ornaments kept in the joint bank locker
accessed by both Maini and Raj Kumar does not come within the purview of stridhan, as
Malini has offered Raj to sell the gold ornaments Voluntarily. Hence Raj Kumar can use the
Gold ornaments for a reasonable purpose.

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Prayer

PRAYER

{PRAYER}

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

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

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

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

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