Cre 5 Problem Evidence | Common Law

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  NATIONAL LAW UNIVERSITY, JODHPUR UG Semester IV “Law of Evidence” CRE Problem No. 5 to be argued on Mar. 6, 2017. Presume that you are in a fictitious country called Dreamland. Its capital city is Fairyland, which has a similar climate as that in Jodhpur, India. The legal system of Dreamland is similar to that in India. In fact, all the Indian laws have been adopted as it is in Dreamland. Thus, a reference to a provision in an Indian statute would constitute a reference to the  provision in the corresponding statute of Dreamland; meaning thereby that the provisions are identical. Of course, being different nations, wherever the provisions in the Indian statues refer to India and its constituents suitable modifications have been made to the corresponding  provisions in the statutes of Dreamland. References made below to the Indian Evidence Act, 1872 (IEA) should be construed as having been made to the corresponding provisions of the Dreamland Evidence Act. Similarly, for the sake of simplicity and convenience, you should refer to the provisions of the relevant Indian statutes in your answer. Jwala, a resident of a Fairyland, is charged by the Sessions Court, Fairyland with the offence of committing murder by intentionally causing death of Sushil on January 10, 2015 at around 9 pm, and thereby committing an offence punishable under Sec. 302 of the IPC. Jwala and Sushil were both neighbours. Prosecution’s case is as follows:  Jwala is a fanatic associated with an anti-corruption movement. Sushil, a government official, was perceived by Jwala as a corrupt official. So, Jwala planned to commit the murder of Sushil. Jwala, had a licensed 7.62 mm caliber pistol (Ext. P1) with which he committed the murder. He procured ammunition viz., 12 rounds for his pistol on Jan. 7, 2015 for committing the said murder, which is proved  by the entry in his arms license. In the crowded market in Fairyland, when Sushil was shopping on the day of his murder, at around 9 pm, Jwala came wearing a balaclava (a monkey cap) which effectively covered his face, drew out his pistol and fired two rounds at Sushil from a distance of one meter which resulted in the fatal injury on his head leading to his death on the spot. This incident happened in a shopping mall in Fairyland which was nearly empty at that time, as the closing time was nearing. As the pistol shots were heard some of the shopkeepers came out of their shops. PW1, a shopkeeper, testified in his examination, that he saw a man of the similar appearance as that of the accused with a jacket on running away from the scene of crime. In his identification parade held on Jan. 15, 2015 however, PW1 could not identify Jwala as that person whom he saw running away that day. In his cross examination PW1 maintained that, he had not seen the accused’s face though the appearance looked similar. A CCTV Camera has captured a blurred footage which show two men, one wearing a jacket and another wearing a shawl holding an object resembling a pistol running away towards the exit just minutes after the incident. The mall has single exit with  just this one CCTV camera placed near it, and no deployment of security personnel. Jwala telephoned his elder brother Madan (PW2), who is a police sub-inspector in a different city, on his landline phone at 10 pm the same day, and said that he had killed Sushil. PW2 informed the local police, which went to the residence of the accused and arrested him. From the conjoint reading of the postmortem report and the ballistic report it is confirmed, that the sole bullet recovered (Ext. P2) from the dead body of the deceased was of a 7.62 mm bore, and could have been fired from the said pistol of the accused. The case of the accused put in his defence is as follows: The accused is completely innocent, and came to know of the murder of Sushil only at 11 pm on the day of murder when he was arrested by the police officials of the nearby police station at his residence. In fact, he was between 8.30 to 9.30 pm at a nearby restaurant having dinner alone. Chotu (DW1), a waiter who served him dinner, has deposed that the accused had dinner in the restaurant that day. Though in his cross-  examination DW1 admits, that he is not aware of the exact time, but maintains that it could  be between anytime between 9 to 10 pm that the accused was served dinner by him. It is alleged, that PW2 is lying, as both the accused and PW2 have a animosity between them, as the accused is planning to marry Joan (DW2) who is ex-girlfriend of PW2. PW2 admits in cross examination, that DW2 was his ex-girlfriend, and he was angry with the accused when he came to know that the accused and DW2 were getting married. But, PW2 maintains that he is speaking the truth. Apart from the shell of the 7.62 mm bullet, there is another shell of a 9 mm bullet produced from the crime scene (Ext. D1). The defence counsel argues, that this also shows the accused’s innocence. The defence counsel also contends, that no second assailant, as spotted in the CCTV footage, has been identified by the police, and the identity of the accused as the assailant who killed the aforementioned deceased has also not been established. No ammunition is recovered from the accused’s residence, and it is contended that the accused had gone to the firing range on Jan. 8, 2015 and fired all the 12 rounds of ammunition. DW3, a supervisor in the local firing range, testifies that on Jan. 8 the accused came to the range for firing practice and fired multiple rounds, but is unable to tell how many rounds of ammunition were actually fired. Prepare and present suitable arguments, depending on whether you are appearing for the  prosecution or the accused in the present matter, on the relevance and admissibility of the above facts (all or some of them, as you think are relevant, along with the inferences drawn) as per the provisions of the IEA applicable. You are expected to have recourse to the relevant  provision(s) of the IEA and the pertinent Indian Supreme Court judgments, which have  persuasive value for the courts in Dreamland though not binding on them. *****
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