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STATEMENT OF THE JURISDICTION OF THE COURT
A charge was filed under Section 302 and 34 of the Indian Penal Code, 1860 against the Accused No. 1, Accused No. 2, Accused No. 3, Accused No. 4 in the Hon‟ble Session Court, Dibrugarh by the Barbaruah Police.
Under Section 26(a) of the Code of Criminal Procedure, 1973 any offence under the Indian Penal Code may be tried by-
i) the High Court, or ii) the Court of session, or
iii) any other Court by which such offence is shown in the First Schedule to be tri-able. According to the Section 28(2) of the Indian Penal Code, 1860 a Session Judge or Additional Session Judge may pass any sentence authorized by law, but any sentence of death passed by any such Judge shall be subject to confirmation by the high Court.
In the First Scheduled of the Code of Criminal Procedure, 1973 classify various types of offences. In Chapter XVI of this Schedule classify the offences affecting the human body and in this category, for the offence of murder (Section 302), the punishment is death, or imprisonment for life and fine. It also defines it as a cognizable and non-Bailable offence triable by the Court of Session.
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STATEMENT OF FACTS ON BEHALF OF THE ACCUSED Most respectfully “Sheweth”
1. That on receiving a telephone call, the Officer-in-Charge of the Barbaruah Police Station recorded an entry in the Tooka Bohi (Daily Dairy Report) that two dad bodies were lying on the berm of the by-pass of Sesa in a pool of blood on 01.05.2009 at about 1.00 A.M. and accordingly a police party headed by Inspector Gopal Das dispatched to the spot.
2. That the police party found the two dead bodies, one of male and other of female and found that the deceased appeared to have been done to death by sliding their throats and after an ocular examination of the bodies revealed, that in addition to the injury to their throats, a large number of lacerated wounds, abrasions and contusions had also been inflicted on various parts of bodies of the deceased.
3. That the Police registered FIR No. 10 dated 01.05.2009 at P.S. Barbaruah u/s 302 IPC and intimated the Investigating Officer at the spot about the particulars of the FIR and the police prepared a site plan, showing the location of the dead bodies; lifted the blood soaked earth; searched the area for the weapon(s) of offence and thereafter, sent the bodies for postmortem after preparing the inquest reports of the two deceased.
4. That the villagers from the nearby villages Sesa and Kotoha identified the deceased girl as Surabhi Mahanta from Sesa village and the boy was identified as Amit Pegu of village Kotoha.
5. That the postmortem report revealed that the deceased boy, Amit Pegu was aged about 22 years and, Surabhi Mahalna, a girl was aged about 19 years and the cause of death, as per the postmortem report, was shock and hemorrhage, on account of multiple injuries and it confirmed also that Amil Pegu and Surabhi Mahanta had been murdered by slitting their throats with a sharp edged weapon and before their murder; a large number of grievous and simple injuries on various parts of their bodies were inflicted.
6. That after the forensic analysis it was found that clothes removed from the bodies of the deceased and the blood stained earth lifted from the spot was human blood bearing three different blood groups - blood group A+ relating the boy Amit Pegu; blood group B+ relating to the girl Surabhi Mahanta, and blood group O+ did not relate to either of the deceased.
7. That on further investigation, it was found that Amit Pegu and Surabhi Mahanta belonged to different castes but wanted to get married against the wishes of the parents of Surabhi Mahanta who
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belonged to higher caste and who threatened to kill Amit Pegu and his family members and therefore Amit Pegu and Surabhi Mahanta eloped and got married at a Mandir.
8. That the local community leaders had called a meeting and put pressure on the family members of Amit Pegu and Surabhi Mahanta to either dissolve their marriage or face a social boycott.
9. That the police arrested Accused No. 1 and Accused No. 2 parents of the girl Surabhi Mahanta, her younger brother Accused No. 3 and a community leader Accused No. 4 on finding a prima facie case against them for offences punishable under Sections 302 and 34 IPC.
10. That the police filed an application under Section 53 of the Code of Criminal Procedure before the Magistrate to direct Accused No. 3 to give his blood sample and after granting the permission by Magistrate, the police to request the Chief Medical Officer to draw a blood sample of Accused No. 3 by use of such force, as may be necessary and the report received from the forensic laboratory disclosed that the third sample of blood bearing the blood group O+ matched with the blood group of Accused No. 3.
11. That as the police tailed to locate the weapon(s) of offence or find any eye witness or witnesses, they filed an application before the Magistrate, praying that they should be allowed to conduct a narco-analysis test on the accused Accused No. 3 and Accused No. 1 and accordingly the Magistrate allowed this application.
12. That the statements made during narco-analysis, the police recovered a knife said to be used in slitting the throats of the deceased on the basis of statement of Accused No. 3 and heavy sticks used to inflict other injuries found on the person of the deceased on the basis of statement of Accused No. 1 and after forensic analysis it was found in the report that the knife carried traces of ante-mortem human blood bearing blood group A+ and B+ and no blood was found on the heavy sticks recovered by the police and allegedly used by the accused persons for causing injuries on the bodies of the deceased.
13. That the police also recorded the statement of one Raghu Pegu, a Mising, aged about 75 years and a resident of village Kotoha, to the effect that on midnight of 30th April and 1st May, 2009, he had seen Accused No. 1 and Accused No. 3 near the place of recovery of dead bodies and on the basis of this evidence, the police filed a final report.
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STATEMENT OF ISSUES
You‟re Honour for the convenience of the Hon‟ble Court the contentions are divided into four issues:
1. WHETHER MAGISTRATE UNDER SECTION 53 OF Cr. P. C. HAVE THE POWER TO GRANT PERMISSION TO TAKE BLOOD SAMPLE OF ACCUSED OR NOT?
2. WHETHER NARCO ANALYSIS TEST IS CONSTITUIONALLY VALID OR NOT?
3. WHETHER STATEMENT MADE UNDER SECTION 161 IS ADMISSIBLE OR NOT?
4. WHETHER THE INVESTIGATION DONE BY THE POLICE IS PROPER OR NOT?
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ARGUMENTS ON BEHALF OFTHE ACCUSED
CONTENTION I – WHETHER MAGISTRATE UNDER SECTION 53 OF Cr. P. C.