Luthra Memorial

XVI K.K.
LUTHRA MEMORIAL MOOT COURT COMPETITION, 2020

MEMORIAL ON BEHALF OF RESPONDENT
URN: 1675
XVI K.K. LUTHRA MEMORIAL MOOT COURT COMPETITION, 2020
Before
THE HIGH COURT OF EREWHON
APPEAL NOs. 10/2019, 11/2019
CLUBBED WITH
APPEAL NOs. 12/2019, 13/2019
IN THE MATTER OF:
ELIZABETH APPELLANT
v.
STATE OF EREWHON RESPONDENT
UPON SUBMISSION TO THE HON’BLE JUDGES OF THE HIGH COURT OF EREWHON
MEMORANDUM ON BEHALF OF THE RESPONDENT
i
TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................................................i
TABLE OF ABBREVIATIONS....................................................................................................iii
TABLE OF AUTHORITIES..........................................................................................................vi
STATEMENT OF FACTS.............................................................................................................ix
ISSUES RAISED...........................................................................................................................xi
SUMMARY OF ARGUMENTS..................................................................................................xii
WRITTEN PLEADINGS................................................................................................................1
I. THE EXCLUSION OF RELEVANT EVIDENCE RESULTED IN FAILURE OF

JUSTICE.....................................................................................................................................1
A. The exclusion of photographs from evidence was not proper..........................................1
i. The photographs from the phone should be admissible................................................1
B. Inadmissibility of the evidence is an irregularity resulting in the failure of justice..........3
II. THE CONVICTION OF ELIZABETH ONLY FOR THE ATTEMPT OF THEFT

IS NOT JUSTIFIED..................................................................................................................5
A. That the accused committed theft.....................................................................................5
i. There was presence of Mens Rea..................................................................................5
a. There was dishonest intention...................................................................................6
b. Animus Furandi.........................................................................................................7
c. Without the consent...................................................................................................7
ii. There was presence of Actus reus.................................................................................8
a. The property was in the possession of Diana...........................................................8
b. The property was moved out of the possession in order of such taking....................9
i
B. The theft was committed in a building used as a human dwelling.................................11
PRAYER......................................................................................................................................xiii
ii
TABLE OF ABBREVIATIONS
S.NO ABBREVIATIONS EXPANSION
1. AC APPEAL CASES
2. AIR ALL INDIA REPORTER
3. All. ALLAHABAD
4. A.P. ANDHRA PRADESH
5 BFG BROWN, FITCH & GRUMP
6. Bom. BOMBAY
7. Cal. CALCUTTA
8. Cox CC COX CRIMINAL CASES
9. CrLJ CRIMINAL LAW JOURNAL
10. edn EDITION
11. ER ENGLAND REPORTER
12. F.2d FEDERAL REPORTER, 2d SERIES
13. FSR FLEET STREET REPORTER
14. GOI GOVERNMENT OF INDIA
15. Hon’ble HONOURABLE
16. i.e. THAT IS
17. Ill. ILLINOIS
18. ILR INDIAN LAW REPORTS
19. Lah. LAHORE
20. Ltd. LIMITED
iii
21. LR LAW REPORTER
22. Mad. MADRAS
23. Mass. MASSACHUSETTS (MA) REPORTS
24. Metc. METCALF’S REPORTS (MA)
25. N.Y. NEW YORK REPORTS
26. Nag. NAGPUR
27. Ors. OTHERS
28. P.2d PACIFIC REPORTER, 2d SERIES
29. Pat. PATNA
30. Pvt. PRIVATE
31. R REGINA
32. R/W or r/w READ WITH
33. Raj. RAJASTHAN
34. S.C. SESSION CASES (SCOTTISH)
35. SC SUPREME COURT
36. SCR SUPREME COURT REPORTER
37. s SECTION
38. Tri. TRIPURA
39. U/S or u/s UNDER SECTION
40. US UNITED STATES
41. UOI UNION OF INDIA
42. vol VOLUME
43. v. VERSUS
iv
44. WR WEEKLY REPORTER
45. & AND
TABLE OF AUTHORITIES
CASES
Ayodhya Duve & Ors. v. Ram Sumer Singh, AIR 1981 SC 1415-------------------------------------4
Bhagwani Appaji v. Kedari Kashinath, (1900) ILR 25 Bom. 202--------------------------------------5
Bharat Tamang v. UOI, 2014 CrLJ 156--------------------------------------------------------------------4
Birla Corporation Ltd. v. Adventz Investments & Holdings, AIR 2019 SC 2390------------------10
Bisakhi v. Emperor, AIR 1918 Lah. 397-----------------------------------------------------------------10
v
Boddepalli Lakshminarayana v. Suvvari Sanyasi Appa Rao, AIR 1959 A.P. 530-----------------6,8
Chandi Kumar Das Karmakar v. Abanidhar Roy, AIR 1965 SC 585----------------------------------6
Commonwealth v. Dana, 2 Metc. (Mass.) 329------------------------------------------------------------2
Emperor v. Lallu Waghji, AIR 1919 Bom. 39-----------------------------------------------------------10
Fairley v. Fishmongers of London, (1951) S.C. (J) 14---------------------------------------------------2
Fowler v. Padget, (1798) 101 ER 1103--------------------------------------------------------------------5
Gangaram Santaram, (1884) 9 Bom. 135------------------------------------------------------------------9
Ganpat Krishnaji, (1930) 32 Bom. LR 351----------------------------------------------------------------7
Ganpat Rao v. Emperor, AIR 1936 Nag. 162-------------------------------------------------------------6
Gokul Prasad v. Debi Prasad, AIR 1925 All. 311--------------------------------------------------------7
Helliwell v. Piggott Sims, (1980) FSR 582----------------------------------------------------------------2
Hossenee v. Rajkrishna, (1873) 20 WR (Cr) 80----------------------------------------------------------8
In re, Chockalingam Pillay, 13 CrLJ 131 (1911)--------------------------------------------------------10
In re, Thangavelu Odayar, AIR 1958 Mad. 476----------------------------------------------------10, 11
In re, K.Nagayya, 2 CrLJ 719 (1962)----------------------------------------------------------------------3
K.N. Mehra v. State of Raj., AIR 1957 SC 369 ----------------------------------------------------------6
Kalluri Rathiah v. Ravipati Seetharamayya, (1961) 2 CrLJ 453----------------------------------------8
Krishan Kumar v. UOI, AIR 1959 SC 1391---------------------------------------------------------------7
Kumura v. R, (1955) AC 197--------------------------------------------------------------------------------2
Lawrie v. Muir, (1950) S.C. (J) 19--------------------------------------------------------------------------2
Megraj Patodia v. R.K. Birla, AIR 1971 SC 1295--------------------------------------------------------2
Mohar Singh v. State of Raj., (1980) Supp SCC 655----------------------------------------------------6
Narsinghdas Marwari v. Emperor, AIR 1928 Nag. 113-------------------------------------------------7
Nathula v. State, AIR 1953 Pat. 100----------------------------------------------------------------------11
Om Prakash v. State of Punjab, AIR 1961 SC 1782-----------------------------------------------------8
Pandita v. Rahimulla Akundo, (1990) 27 Cal. 501-------------------------------------------------------9
Pattu Goswami v. Ram Kumar Das, AIR 1960 Tri. 40--------------------------------------------------6
People v. Defore, 242 N.Y. 13 (N.Y. 1926)---------------------------------------------------------------4
Pooran Mal v. Directory of Inspection of Income Tax 2, SCR 704 (1974)---------------------------2
Public Prosecutor v. Bullaba Gowd, 1 Weir 426---------------------------------------------------------9
Pushpa Devi Jatia v. Wadhwan, Addl. Secretary, GOI, AIR 1987 SC 1748--------------------------2
vi
R Balakrishna Pillai v. State of Kerala, AIR 2003 SC 1012--------------------------------------------5

R v. Leatham, (1861) 8 Cox CC 498-----------------------------------------------------------------------1
R v. Sang, (1980) AC 402-----------------------------------------------------------------------------------2
R v. Smurthwaite, (1994) 1 All ER 898--------------------------------------------------------------------3
R v. Stewart, (1988) 1 SCR 963-----------------------------------------------------------------------------9
Ramratan v. State of Bihar, AIR 1965 SC 926------------------------------------------------------------6
Ratlray v. Raltry, 1897 25 Rettie 315----------------------------------------------------------------------2
Shaikh Garib Haji v. Muchiran Shau, AIR 1925 Cal. 1020---------------------------------------------8
Sri Churn Cungo, (1865) 22 Cal. 1017---------------------------------------------------------------------7
State v. Aime, 62 Utah 476 (1923)-------------------------------------------------------------------------2
State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722---------------------------------------5
State of Maharashtra v. Vishwanath Tukaram Umale, AIR 1979 SC 1825-------------------------10
State v. Jurrell, 608 P.2d 218 (1980)-----------------------------------------------------------------------4
Stevison v. Earnest, 80 Ill. 513 (1875)---------------------------------------------------------------------2
Trustees of Port of Bom. v. Premier Automobiles Ltd., AIR 1974 SC 923---------------------------8
US v. Cusumano, 429 F.2d 378-----------------------------------------------------------------------------3
US v. Porco, 42 F.2d 1022-----------------------------------------------------------------------------------3
United Sutton v. US, 267 F.2d 271------------------------------------------------------------------------4
STATUTES
Erewhon Evidence Act, 1872, s 5---------------------------------------------------------------------------2

Erewhon Penal Code, 1860------------------------------------------------------------------------------6, 11
Erewhon Penal Code, 1860, s 23----------------------------------------------------------------------------6
Erewhon Penal Code, 1860, s 378--------------------------------------------------------------------5, 8, 9
BOOKS
vii
1. CD Field, Commentary on Law of Evidence (13 edn, Delhi Law House 2015).
2. Dr. Hari Singh Gaur’s, Penal Law of India (11 edn, Law Publishers (India) Pvt. Ltd
2006).
3. JK Soonavala, Supreme Court Criminal Digest vol 4 (6 edn, Lexis Nexis 2016).
4. John W. Salmon & Sir P J Fitzgerald, Salmond on Jurisprudence (12 edn, London, Sweet
& Maxwell 1966).
5. Manohar & Chaitaley, The Air Manual and Criminal vol 38 (6 edn, All India Reporter
Pvt. Ltd. 2004).
6. Ratanlal & Dhirajlal, The Indian Penal Code vol 2 (34 edn, Lexis Nexis 2018).
7. SK Sarvaria, RA Nelson’s Indian Penal Code vol 4 (9 edn, Lexis Nexis Butterworths
2003).
8. Surendra Malik & Sudeep Malik, Supreme Court on Penal Code vol 4 (2 edn, Eastern
Book Company 2015).
9. S.P. Sen Gupta, Indian Penal Code 1860, vol 2 (3 edn, Kamal Law House 2015).
ENCYCLOPEDIA
1. Garner, Black’s Law Dictionary (10th edn, 2014).

2. Halsbury’s Laws of India (2nd edn, 2014) vol 11.
3. Halsbury’s Laws of India (2nd edn, 2014) vol 10.
STATEMENT OF FACTS
BACKGROUND
Erewhon is a constitutional republic that follows the common law system. Diana White &
Elizabeth Brown were classmates & have joined Elizabeth’s father’s publishing house named
BFG in the summer of 2018. Elizabeth was made part of a strategy team set up in BFG & Diana
was a copy-editor in one of BFG’s fortnightly magazine, The Voice. The strategy team was
developing a “BFG Reader” App, to make the firm’s content available on a user-friendly
viii
platform. Elizabeth had been trying her best to come up with new ideas but wasn’t able to
convince the team. Meanwhile, Diana wrote articles including a series of vignettes based on her
experiences as a member of LGBTQ community. Diana invited Elizabeth over for dinner at her
house.
SERIES OF INCIDENTS
That evening, Elizabeth went around the place & came across a stack of papers. On the pretext of
going to the bathroom Elizabeth went back to the same room where she found the papers. When
Diana went to help her friend, she saw her peering over the papers with a phone. The BFG
Reader App was released & one of the most received aspects was a series of vignettes written
from the perspective of LGBTQ woman dealing with life in Erewhon, published under
Elizabeth’s name.
COMPLAINT & INVESTIGATION
Diana when came to know that her work was published, filed a complaint for theft against
Elizabeth & BFG. The investigating team searched Elizabeth’s house & office but found no
papers there. The police seized one desktop computer, mobile phone & one laptop computer &
sent them for forensic analysis. All devices were locked & required passwords & Elizabeth
denied to give the same. When Elizabeth came for questioning, she was told to give her
fingerprints on a scanning pad that recorded them. The photos found in the phone matched the
printouts handed over by Diana, who confirmed that those photos were taken without her
consent. Elizabeth was prosecuted u/s 380 & 411 of EPC.
PROCEEDINGS
The pre-trial court held i) Elizabeth’s fingerprints & all derivative evidence were excluded from
evidence; ii) the seizure was not bad for want of warrant; iii) since the text messages had not
been relied upon by the prosecutor, the same were not part of the record & could not be referred
to during trial. The case was posted before a different judge for trial.
The trial court held that the information contained in the document could not be the subject of
theft. Elizabeth was found guilty for attempt to commit the offence & was convicted u/s 511 r/w
ix
section 380 of Erewhon Penal Code & was sentenced to 2 years of imprisonment & a fine of
10,000 Erewhon Dollars.
Both the parties individually filed appeals challenging the pre-trial ruling & the final judgement
itself.
ISSUES RAISED
I.
WHETHER THE EXCLUSION OF RELEVANT EVIDENCE RESULTED IN FAILURE OF

JUSTICE?
x
II.
WHETHER THE CONVICTION OF ELIZABETH ONLY FOR THE ATTEMPT OF THEFT

IS JUSTIFIED?
SUMMARY OF ARGUMENTS

JUSTICE
The only condition that should be necessary for admissibility of evidence is its relevance to the
issue. Admissibility of shreds of evidence obtained via illegal methods should not affect the
relevancy of such evidence. The photos which were obtained from the phone were excluded
xi
from the evidence for being fruits of the poisonous tree. The said photos are not fruits of the
poisonous tree rather fruits (evidence) of the crime. Such exclusion would provide otherwise
guilty man to go free. Excluding illegally obtained evidence in the interests of 'fair play' does not
advance the cause of trial fairness but rather distorts the truth & impedes the administration of
justice. This doctrine views to let a criminal go unpunished because of the misconduct of the
police. Therefore, the evidence is relevant & thus should be admissible.
II. THE CONVICTION OF ELIZABETH ONLY FOR THE ATTEMPT OF THEFT IS

NOT JUSTIFIED
The act of Elizabeth brought about all the essential elements which by statute constitute the
offence of theft. Elizabeth took photographs without the consent of Diana & further converted to
her own use by publishing the said articles under her name shows that her dishonest intention
was accompanied by the act of conversion resulting into wrongful loss to Diana. The decision of
the Court of punishing Elizabeth merely for the attempt when there was actual commission of the
offence is not justified. Therefore, Elizabeth should be convicted under section 380 to make the
ends of justice meet.
xii
WRITTEN PLEADINGS

JUSTICE
1. The Court in pre-trial excluded the photos from the phone on the ground of it being fruit
of poisonous tree1 which caused denial of justice to Diana. The COUNSEL submits that
[A.] the exclusion of photos from evidence was not proper & [B.] it caused failure of
justice.
A. The exclusion of photos from evidence was not proper
2. Diana saw Elizabeth peering over the articles with her phone2 & later on, photos of some
printouts were found in her phone & they matched the printouts handed over by Diana. 3
The Court excluded the said photos from evidence on the ground of it being fruits of
poisonous tree.4 The said rule states that evidence derived from an illegal search, arrest, or
interrogation is inadmissible because the evidence (the “fruit”) was tainted by the
illegality (the “poisonous tree”).5 This rule should not be applicable in the present case as
it matters not how you get it, if you steal it even, it would still be admissible in evidence.6
i. The photos from the phone should be admissible
1
Moot Compromis (¶18).
2
3
4
5
Garner, Black’s Law Dictionary (10th edn, Thomsan Reuters 2014).
6
R v. Leatham, (1861) 8 Cox CC 498.
1
3. There is no discretion to refuse to admit relevant admissible evidence on the ground that it
was obtained by improper or unfair means. The court is not concerned with how it was
obtained.7 The purpose of a criminal trial is to determine the guilt or innocence of the
accused, their unfairness will only arise if the court is in danger of being misled by the
admission of unreliable or overly prejudicial evidence.8
4. The test to be applied in considering whether the evidence is admissible is whether it is
relevant to the matter in issue. If it is, it is admissible & the court is not concerned with
how evidence was obtained.9 The obtained photos are of great relevance as these photos
form the subject matter of the said offence. The only criteria regarding the admissibility of
evidence in the court of law is its “relevancy”. 10 If the evidence is relevant it is admissible
& it is not concerned with how it is obtained.11 The common law treated illegally obtained
evidence as admissible, if it was relevant & reliable. 12 Further the SC has explicitly held
that there is no construction of fundamental rights in the constitution which can be
construed in a manner so as to exclude the evidence obtained in an illegal search. 13 If
evidence is relevant the court is not concerned with how it is obtained.14 Document
obtained by improper or illegal means could not bar its admissibility.15
5. Even if the search is illegal there is no good reason for excluding the papers seized, as
evidence, if they were pertinent to the issue, as they unquestionably were. When papers
are offered in evidence the court can take no notice how they were obtained, - whether
lawfully or unlawfully, - nor would they form a collateral issue to determine that
question.16 It does not logically follow, however, that the records, being obtained, cannot
be used as instruments of evidence; for the mere fact of (illegally) obtaining them does not
change that which is written in them. 17 The COUNSEL submits that the evidence adduced
7
R v. Sang, (1980) AC 402.
8
State v. Aime, 62 Utah 476 (1923).
9
Kumura v. R, (1955) AC 197.
10
Erewhon Evidence Act, 1872, s 5.
11
Ratlray v. Raltry, 1897 25 Rettie 315; Lawrie v. Muir, (1950) S.C. (J) 19; Fairley v. Fishmongers of London,
(1951) S.C. (J) 14.
12
Helliwell v. Piggott Sims, (1980) FSR 582.
13
Pooran Mal v. Directory of Inspection of Income Tax 2, SCR 704 (1974).
14
Pushpa Devi Jatia v. Wadhwan, Addl. Secretary, GOI, AIR 1987 SC 1748.
15
Megraj Patodia v. R.K. Birla, AIR 1971 SC 1295.
16
Commonwealth v. Dana, 2 Metc. (Mass.) 329.
17
Stevison v. Earnest, 80 Ill. 513 (1875).
2
from the phone should not be made inadmissible on the ground of being fruits of
poisonous tree, rather it should be admissible on being fruits (evidence) of the crime.
6. The exclusion of such evidence has the effect of acquitting the accused against whom the
society is entitled to protection. It is important to recognize that exclusion rather than
admission of highly probative illegally obtained evidence is more likely to render the
proceedings unfair, given that 'fairness of the proceedings involves a consideration not
only of fairness to the accused, but also of fairness to the public. 18 The Exclusionary Rule
has harmful effects on society. Guilty defendants are freed, the truth finding process is
distorted, aberrant results subject the courts to public scorn & ridicule, the focus of the
trial shifts from guilt or innocence to procedural niceties, court costs increase through
delay & perjury becomes tempting to the very people supposed to be examples of the law
& order.19
7. The COUNSEL therefore submits that the photos should be made admissible because the
presence of such photos as evidence proves the relevant fact of movement of the article
which resulted in Elizabeth having the constructive possession over Diana’s property.
B. Inadmissibility of the evidence is an irregularity resulting in the failure of justice
8. Failure of justice does not merely mean any erroneous decision. When the procedure
which would give a person affected a better opportunity to clear the position has not been
followed, it would be a case of failure of justice. 20 Diana found Elizabeth peering over her
articles with a phone21, & the police while searching her phone also found some
photographs that matched the printouts handed over by Diana. 22 This evidence forms the
very basis of the commission of the said offence. Its inadmissibility would permit an
otherwise guilty man to go free. Although society seeks to deter illicit police practices, it
does not wish to create an even greater evil. Exclusion of reliable evidence may be an evil
but absolute immunity from prosecution is too high a price to pay to deter illegal police
18
R v. Smurthwaite, (1994) 1 All ER 898.
19
US v. Cusumano, 429 F.2d 378; US v. Porco, 42 F.2d 1022.
20
In re, K. Nagayya, 2 CrLJ 719 (1962).
21
22
3
conduct.23 By such exclusion courts tend to promote a system less strongly committed to
doing justice than to discouraging overreaching by the police. 24 The lack of judicial
approach, non application of mind, non consideration or improper consideration of
material evidence inconsistencies amounts to grave miscarriage of justice. 25 Fairness then,
in a legal sense should equate to 'justice' & its interpretation as 'fair play' denigrates the
entire judicial process. It is an unfortunate side effect of the adversarial system, which has
turned the criminal trial into what one judge calls 'an arena of competition between the
prosecution & the defence rather than a search for truth'.26 Excluding illegally obtained
evidence in the interests of 'fair play' does not advance the cause of trial fairness but rather
distorts the truth & impedes the administration of justice. Justice Cardozo criticized the
rule as allowing "the criminal to go free because the constable has blundered". 27 To
exclude reliable & probative evidence itself renders a trial unfair as the law cannot be
justly administered if evidence relevant to the facts in dispute is deliberately withheld
from the Court.28
9. Therefore the COUNSEL submits that excluding illegally obtained evidence in the interest
of fair play does not advance the cause of trail fairness but rather distorts the truth &
impedes the administration of justice. In order to dispense justice & ensure that the real
culprits are brought to book, the investigating agency should make every endeavour to
unearth the truth by scrutinizing & gathering every minute details & materials & place it
before the concerned adjudicative machinery in order to enable the Court examining the
guilt of otherwise of an accused to reach a just conclusion.29
23
United Sutton v. US, 267 F.2d 271.
24
Paul H Robinson, ‘Moral Credibility and Crime’ (1995) 72.
25
Ayodhya Duve & Ors. v. Ram Sumer Singh, AIR 1981 SC 1415.
26
State v. Jurrell, 608 P.2d 218 (1980).
27
People v. Defore, 242 N.Y. 13 (N.Y. 1926).
28
Supra note 9.
29
Bharat Tamang v. UOI, 2014 CrLJ 156.
4
II. THE CONVICTION OF ELIZABETH ONLY FOR THE ATTEMPT OF THEFT

IS NOT JUSTIFIED
10. It is humbly submitted before this Hon’ble Court that the Trial Court was not justified to
convict the accused merely for the attempt & not for the actual commission.
11. An offence u/s 380 of the Penal Code has following essential requisites: [A.] that the
accused committed theft; [B.] that such theft was committed in any building used as a
human dwelling, or for the custody of property.30
A. That the accused committed theft
12. Section 378 of the Penal Code defines theft as the dishonest removal of anything animate
or inanimate out of the possession of any person without the consent of that person. 31 The
general principle of criminal jurisprudence is that the element of mens rea must
accompany the culpable act or conduct of the accused. 32 These concepts of Criminal Law
are traditionally expressed in the legal maxim actus non facit reum nisi mens sit rea33
which means that the intent & the act both must concur to constitute the crime. 34 The
essentials of the offence can be categorised into [i.] presence of mens rea; & [ii.] presence
of actus reus.
i. There was presence of Mens Rea
13. Mens rea is one of the essential ingredients of criminal liability. 35 Intention connotes a
conscious exercise of the mental faculties of a person to do a particular act with a view to
accompanying or satisfying a particular purpose.36 To constitute theft, the presence of
30
Ratanlal & Dhirajlal, The Indian Penal Code, vol 2 (34 edn, Lexis Nexis 2018).
31
Erewhon Penal Code, 1860, s 378.
32
R Balakrishna Pillai v. State of Kerala, AIR 2003 SC 1012.
33
State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722.
34
Fowler v. Padget, (1798) 101 ER 1103.
35
Supra note 33.
36
Bhagwani Appaji v. Kedari Kashinath, (1900) ILR 25 Bom. 202.
5
mens rea i.e. guilty mind can be drawn from [a.] dishonest intention, [b.] animus furandi
& [c.] consent.
a. There was dishonest intention
14. Intention is the aim of an act. To constitute theft dishonest intention 37 must be there.38
Dishonest intention exists when the person so taking the property intends to cause
wrongful gain to himself or wrongful loss to the other. 39 Causing of wrongful gain40 or
wrongful loss41 is an essential component to determine dishonest intention. 42 Dishonest
intention may be inferred from the entire facts & circumstances of the case.43
15. Elizabeth had been trying her best to come up with new directions to experiment but
wasn’t able to convince the team with her ideas.44 Diana invited Elizabeth to her house for
dinner.45 When Elizabeth went to her house, she came across a stack of papers while going
around the place. After tea, Elizabeth on the pretext of going to the bathroom went back to
that room. On realising that Elizabeth didn’t know the way to the bathroom, Diana went to
help her friend & saw her peering over the papers with her phone. 46 When a man is trusted
by another to go to a place where some of his property is stored & help himself to a given
quantity & the man taking advantage of the confidence takes away something in excess,
the intention with respect to the excess is obviously dishonest & a conviction for theft is
proper.47
16. When an act is done by a person, it is presumed that he must have been aware that certain
specified harmful consequences would follow.48 The combined effect to Sec. 23 & 24 of
the Code49 is that a man’s intention is said to be ‘dishonest’ if he takes another man’s
37
38
Pattu Goswami v. Ram Kumar Das, AIR 1960 Tri. 40; Mohar Singh v. State of Raj., (1980) Supp SCC 655.
39
Chandi Kumar Das Karmakar v. Abanidhar Roy, AIR 1965 SC 585; Ramratan v. State of Bihar, AIR 1965 SC
926.
40
41
Supra note 40.
42
K.N. Mehra v. State of Raj., AIR 1957 SC 369.
43
Boddepalli Lakshminarayana v. Suvvari Sanyasi Appa Rao, AIR 1959 A.P. 530.
44
45
46
47
Ganpat Rao v. Emperor, AIR 1936 Nag. 162.
48
Halsbury’s Laws (2nd edn, 2014) vol 11.
49
Erewhon Penal Code, 1860.
6
property out of his possession with the intention either to make a gain to himself or to
cause a loss to that other by some unlawful means. 50 Intention conveys a fixed direction of
the mind to a particular object or determination to act in a particular manner. Therefore,
the act of Elizabeth was accompanied with dishonest intention.
b. Animus Furandi
17. The intention to cause wrongful gain to oneself or wrongful loss to another is known as
animus furandi & without it the offence of theft is incomplete.51 Wrongful gain includes
wrongful retention & wrongful loss includes being kept out of the property as well as
being wrongfully deprived of property.52 With the release of the beta version of the App,
Diana found that the series of vignettes which were written by her were published under
Elizabeth’s name.53 Diana was deprived of the use of her property because the publication
of her work under Elizabeth’s name took away all her rights over her work. When the
owner is kept out of possession of his property with the object of depriving him of the
benefit arising from the possession even temporarily, the case will come within the
definition.54
c. Without the Consent
18. The subject-matter of theft is that the property must be taken without the consent of the
person in possession of it. To constitute an act of theft, there must not only be a dishonest
intention but such removal of property must be made without the consent of the owner. 55
On pretext of going to the bathroom, Elizabeth went back to the room where she had
previously come across the stack of papers.56 Diana had consented only up to the limit of
Elizabeth using the bathroom & no further. Diana then found Elizabeth peering over the
50
Supra note 42.
51
Gokul Prasad v. Debi Prasad, AIR 1925 All. 311.
52
Krishan Kumar v. UOI, AIR 1959 SC 1391.
53
54
Sri Churn Cungo, (1865) 22 Cal. 1017 (FB); Ganpat Krishnaji, (1930) 32 Bom. LR 351.
55
Narsinghdas Marwari v. Emperor, AIR 1928 Nag. 113.
56
7
articles with her phone & when confronted Elizabeth was startled & gave some excuses. 57
The want of the consent of the person in possession is therefore meant by the words
“without that person’s consent”58.59 Therefore, Elizabeth took the property without the
consent of Diana.
ii. There was presence of Actus reus
19. Actus reus may be so defined as to include acts of omissions as well as acts of
commissions & a person may incur criminal liability for failing to do that which the law
enjoins as much as by doing that which the law proscribes or prohibits. 60 To constitute
theft, the presences of actus reus i.e. guilty act can be drawn from [a.] possession of the
property & [b.] moving of things.’
a. The property was in the possession of Diana
20. Possession implies a right & a fact; the right to enjoy annexed to the right of property &
the fact of the real intention. It involves power of control & intent to control. 61 Theft is an
offence against possession.62 The property must be in the possession of the prosecutor. 63
While going around Diana’s place Elizabeth came across a stack of papers 64 which forms
the subject-matter of the present case. This depicts that papers were placed in Diana’s
room which clearly shows Diana had possession over those papers. The facts clearly show
that Diana had written those set of vignettes65 which provided her sole-possession over the
papers & the content in those papers. It is said, to constitute theft it is sufficient if property
57
58
59
Kalluri Rathiah v. Ravipati Seetharamayya, (1961) 2 CrLJ 453.
60
Trustees of Port of Bom. v. Premier Automobiles Ltd., AIR 1974 SC 923; Om Prakash v. State of Punjab, AIR
1961 SC 1782.
61
John W. Salmond & Sir. P J Fitzgerald, Salmond on Jurisprudence (12 edn, London, Sweet & Maxwell 1966).
62
Shaikh Garib Haji v. Muchiran Shau, AIR 1925 Cal. 1020; Boodepalli Lakshminarayana v. Suvvari Sanyasi Appa
Rao, AIR 1959 A.P. 530.
63
Hossenee v. Rajkrishna, (1873) 20 WR (Cr) 80.
64
65
8
is removed, against his wish, from the custody of a person who has an apparent title, or
even a colour of right, to such property. 66 If a person has physical control over an article,
sufficient for practical purposes, to exclude others & intends to exercise control to treat
the thing as his own, then that person is in legal possession of that article & if another
person takes it away from him dishonestly it is theft. 67 Therefore, the property was in the
possession of Diana.
b. The property was moved out of the possession in order of such taking
21. An essential ingredient of the offence of ‘theft’ is that anything which was the subject-
matter of the theft must have been ‘moved’ out of the possession of any person without
his consent. That would be possible only if the person moving the property had taken it
out of the possession of the person concerned & transferred it to his own possession in
order to move it for the purpose of taking it dishonestly. 68 As the section69 itself indicates,
to constitute the offence of theft one should ‘take anything’. In its usual signification the
word ‘taken’ implies a transfer of possession, dominion or control. 70 The scope of the
word ‘anything’, is that property must be capable of being taken or converted in a manner
that results in the deprivation of the victim. Tangible things present no difficulty in this
regard, as it is easy to conceive how they can be both taken & converted. On the other
hand, pure intangibles, as they have no physical existence, can obviously only be
converted, not taken71.
22. Diana found Elizabeth peering over the papers with her phone,72 & the police also found
photographs of the same on the search of her phone.73 She knew that those articles were
written by Diana & given this knowledge her action of taking picture & then publishing it
under her name constitutes a ‘conversion’. It follows that transfer of possession of the
property, however transient, is an essential ingredient of an offence of theft. 74 In the Lord
66
Gangaram Santaram, (1884) 9 Bom. 135; Pandita v. Rahimulla Akundo, (1990) 27 Cal. 501.
67
Public Prosecutor v. Bullaba Gowd, 1 Weir 426.
68
Supra note 30.
69
70
S.P. Sen Gupta, Indian Penal Code 1860, vol 2 (3 edn, Kamal Law House 2015).
71
R v. Stewart, (1988) 1 SCR 963.
72
73
74
State of Maharashtra v. Vishwanath Tukaram Umale, AIR 1979 SC 1825.
9
Macaulay Report, the authors of the Code have said, “in theft, as we have defined it, the
object of the offender always is to take property which is in the possession of a person out
of that person’s possession. Nor have we admitted a single exception to this rule”.75
23. As soon as Elizabeth took photos of those papers she gained the constructive possession
of the intangible property that was the content written on the paper. Physical contact is not
necessary to complete possession, as possession depends upon the physical possibility of
the possessor dealing with the thing exclusively.76 Therefore, the information contained in
the document also falls within the purview of the “corporeal property” & can be subject
matter of theft.77 The intention of the accused must be to take, i.e., to acquire, possession
of something in another’s possession.78
24. The only physical conduct involved in the offence of theft is the movement of the property
in question, in order to effect the intended taking or transfer of possession. 79 Further by
publishing the article under her own name, Elizabeth deprived Diana of all the dominion,
control & rights over her self-written article. In the view of Cory J.A., information & its
collection, collation & interpretation are vital & most valuable asset. Therefore, copying
paper was as much an act of theft as the surreptitious removal of the original papers would
be.80 The act of clicking photo as well as publishing the article under her name transfers
the intended possession & hence results in fulfilling the essential of ‘movement’ as Diana
lost the exclusive possession & control over her article. The series of facts &
circumstances thereby proves that Elizabeth performed the conversion dishonestly & there
was no colour of right, making her guilty of the offence of theft.
25. Moreover, the articles were in a ‘stack of papers’ with the top page marked as vignettes 81.
When her phone was searched the police found photographs matching the printouts
handed over & seized from Diana.82 The act of taking photographs was consequent to the
‘movement’ of those articles in order to separate them from the stack of papers. The least
removal of the thing taken from the place where it was before is a sufficient though it be
75
Supra note 30.
76
Emperor v. Lallu Waghji, AIR 1919 Bom. 39.
77
Birla Corporation Ltd. v. Adventz Investments & Holdings, AIR 2019 SC 2390.
78
In re, Chockalingam Pillay, 13 CrLJ 131 (1911).
79
Bisakhi v. Emperor, AIR 1918 Lah. 397; In re, Thangavelu Odayar, AIR 1958 Mad. 476.
80
Supra note 71.
81
82
10
not quite carried off.83 So, if the thief moves the goods even an inch from the place where
they lay, the offence would be complete even though he may then leave them alone. 84
Therefore there was conversion of intangible property as well as movement of the tangible
form in which it was embodies making Elizabeth guilty of theft.
B. The theft was committed in a building used as a human dwelling
26. Theft attracts Section 38085 when the building is used as a human dwelling or as a place of
custody of property. The term ‘dwelling’ means a building, tent or vessel, in which a
person lives, remains or hinges whether permanently or temporarily. 86 Diana invited
Elizabeth over for dinner at her house87, & the papers were also kept in a room inside her
house. That building was used as both as the dwelling house & as a place for the custody
of property.
27. Therefore the act of Elizabeth falls under the purview of theft under dwelling house &
therefore her conviction for mere attempt fails to provide justice to Diana.
83
Supra note 30.
84
In re, Thangavelu Odayar, AIR 1958 Mad. 476; Nathula v. State, AIR 1953 Pat. 100.
85
Erewhon Penal Code, 1860.
86
Supra note 30.
87
11
PRAYER
Wherefore it is prayed, in light of the issues raised, arguments advanced, & authorities cited, that
this Hon’ble High Court may be pleased:
I.
To adjudge that photographs obtained should be made admissible.
II.
To adjudge the conviction of Elizabeth u/s 380 of Erewhon Penal Code.
Pass any other order, direction or relief that this Hon’ble Court may deem fit in light of the
facts of the case, evidences adduced, justice, equity & good conscience.
For this act of kindness, the respondent shall duty bound forever pray.
All of which is humbly prayed,
URN 1675
Counsels for the RESPONDENT
xiii

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XVI K.K.

LUTHRA MEMORIAL MOOT COURT COMPETITION, 2020

XVI K.K. LUTHRA MEMORIAL MOOT COURT COMPETITION, 2020

THE HIGH COURT OF EREWHON

APPEAL NOs. 10/2019, 11/2019

APPEAL NOs. 12/2019, 13/2019

IN THE MATTER OF:

STATE OF EREWHON RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE HIGH COURT OF EREWHON

MEMORANDUM ON BEHALF OF THE RESPONDENT

I. THE EXCLUSION OF RELEVANT EVIDENCE RESULTED IN FAILURE OF

A. The exclusion of photographs from evidence was not proper..........................................1

i. The photographs from the phone should be admissible................................................1

B. Inadmissibility of the evidence is an irregularity resulting in the failure of justice..........3

II. THE CONVICTION OF ELIZABETH ONLY FOR THE ATTEMPT OF THEFT

A. That the accused committed theft.....................................................................................5

i. There was presence of Mens Rea..................................................................................5

a. There was dishonest intention...................................................................................6

c. Without the consent...................................................................................................7

ii. There was presence of Actus reus.................................................................................8

a. The property was in the possession of Diana...........................................................8

B. The theft was committed in a building used as a human dwelling.................................11

S.NO ABBREVIATIONS EXPANSION

2. AIR ALL INDIA REPORTER

4. A.P. ANDHRA PRADESH

5 BFG BROWN, FITCH & GRUMP

8. Cox CC COX CRIMINAL CASES

9. CrLJ CRIMINAL LAW JOURNAL

10. edn EDITION

11. ER ENGLAND REPORTER

12. F.2d FEDERAL REPORTER, 2d SERIES

13. FSR FLEET STREET REPORTER

14. GOI GOVERNMENT OF INDIA

15. Hon’ble HONOURABLE

16. i.e. THAT IS

17. Ill. ILLINOIS

18. ILR INDIAN LAW REPORTS

19. Lah. LAHORE

20. Ltd. LIMITED

21. LR LAW REPORTER

22. Mad. MADRAS

23. Mass. MASSACHUSETTS (MA) REPORTS

24. Metc. METCALF’S REPORTS (MA)

25. N.Y. NEW YORK REPORTS

26. Nag. NAGPUR

27. Ors. OTHERS

28. P.2d PACIFIC REPORTER, 2d SERIES

29. Pat. PATNA

30. Pvt. PRIVATE

32. R/W or r/w READ WITH

33. Raj. RAJASTHAN

34. S.C. SESSION CASES (SCOTTISH)

35. SC SUPREME COURT

36. SCR SUPREME COURT REPORTER

38. Tri. TRIPURA

39. U/S or u/s UNDER SECTION

40. US UNITED STATES

41. UOI UNION OF INDIA