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DOGRA LAW COLLEGE
INTRA COLLEGE MOOT COURT 2022
Before THE HONORABLE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH BENCH AT JAMMU The appeal filed under section 302 read with section 34 of Indian Penal code, 1860 Criminal Appeal no. _______________/ In the matter of Sukhdev Appellant No. 1 Milkha Appellant No. 2 Baldev Appellant No. 3 VS UT OF JAMMU AND KASHMIR Respondent
_ MEMORIAL SUBMITTED BY COUNSEL ON BEHALF OF RESPONDENT
TABLE OF CONTENTS
CONSTITUTION AND STATUTES
1. The Indian penal code ,
2. Code of criminal procedure ,
3. Indian Evidence Act 1872
BOOKS AND ONLINE REFERNCE
- Justice M.R. Mallick, Criminal Major Acts, Professional Book Publishers Delhi
- Hemant Gambhir & Sidharth Mudgal, Supreme court Key points for criminal practice, L.R.C Publications. WEBSITES
1. www.indiankanoon.com
2. www.scc.online.com
STATEMENT OF JURISDICTION
The appellant humbly approaches the Hon’ble high court under section 374(2)of the code of criminal procedure ,1973, which reads as follows: Section 374 of the code of criminal procedure: Appeals from convictions: (1) Any person convicted on a trail held by a high court in its extraordinary originalcriminal jurisdiction may appeal to the supreme court. (2) Any person convicted on a trial held by a session judge or an additional session judge or on a trail held by any other court in which a sentence of imprisonment for more than seven years has been passed may appeal to the high court. (3) Save as otherwise provided in sub-section (2) any person: (a) Convicted on a trail held by a metropolitan magistrate or assistant session judge or magistrate of the first class or the second class, (b) or sentenced under section 325, or (c) In respect of whom an order has been made or a sentence has been passed under section 360 by any magistrate, may appeal to the court of session. (4) When an appeal has been filed against a sentence passed under section 376, section 376- A, section 376-AB, Section 376 - B, Section 376-C, Section 376-D, Section 376-DB or section 376-E of the Indian Penal Code (45 of 1860), the appeal shall be disposed off within a period of six months from the date of filing of such appeal. The respondents humbly submit to jurisdiction of the Hon’ble court.
That Post-mortem report confirmed that rhandir died due to injuries suffered by him on his head and due to fracture of two ribs. That none of the injuries independently were sufficient to cause his death while they cumulatively were sufficient in the ordinary course of nature to cause the death. That the FIR was registered under section 307 with section 34 of Indian penal code 1860 and after the death of Randhir, the charges were altered to section 302 read with section 34 of Indian penal code 1860. That the session court convicted the three Appellants under the murder of Randhir. That Aggrieved and dissatisfied by the judgement of conviction passed by the Appellants have preferred the present appeal.
STATEMENT OF CHARGES
That initially the FIR was registered under section 307 read with section 34 of Indian penal code ,186 0 and after the death of Randhir, the charges were altered to 302 read with section 34 Indian penal code ,1860. The sessions court convicted the three Appellants under section 302 read with section 34 andsentenced them to life imprisonment for having committed the murder of Randhir.
SUMMARY OF ARGUMENTS
ISSUE NO. 1
Whether the Appellants can be prosecuted under section 302 read with section 34 of the Indian Penal code It is humbly contended that the hon’ble session court had correctly held the appellants as guilty of murder of Randhir under section 302 read with section 34 of Indian Penal code. Section 34 of Indian Penal code envisages commission of murder by two or more people in furtherance of a common intention. ISSUE NO. 2 Whether the nature of injuries and the nature of the weapon, was such as to cause death of a person It is humbly submitted before this hon’ble high court that the nature of the injuries and the nature of weapon were indeed enough to cause death of the person. Resting on the facts given in this case, Post-mortem report confirms that Randhir Died due to injuries suffered by him on his head and due to fracture of two ribs. ISSUE NO. 3 Whether the act of deceased amounted to grave and sudden provocation It is most humbly submitted before this Hon’ble court that the act of the deceased did not amount to grave and sudden provocation rather it was a pre-mediated, arranged and with a well-defined Modus Operandi of the Appellants. As seen from the facts it has been shown that the appellant no. 3 has intentionally asked the deceased to come home as he know that he will be willing to talk to Babita then there will be a good opportunity to prove a sudden spurt of hate and hence a heated argument. ISSUE NO. 4 Whether the sessions court was justified in sentencing the Appellants with life
imprisonment in connection with the act committed by them It is humbly contended that the Hon’ble session court had correctly held the accused as guilty of murder of Randhir under section 302 read with section 34 of Indian penal code. Section 302 read with section 34 of Indian penal code envisages commission of murder by two or more people in furtherance of a common intention. And as per the post mortem report, deceased died to injuries suffered by him on his head and due to fracture of two ribs. And it is presumed that every person know the results of his action and if a person hits another person on his vital organs several times he only does this with the intention of killing him or causing such bodily injury as is likely to cause death.
rea” which literally means” an act does not make a person guilty unless mind is guilty. (1) Actus reus Actus reus is any wrongful act. Thus, in a case of murder, Actus rea would be the physical conduct of the accused that causes death of the victim. In the instant case, it is contended that the deceased was assaulted. It is well settled principle that the case is mainly based on circumstantial evidence. It is humble contention of the respondent that the physical act of murdering Randhir by giving blows to him on his leg, chest and head had been established by well linked chain of circumstantial evidence which shows the wrongful act on the part of appellants. (2) Mens Rea Mens rea is considered as guilty intention. Which is proved or inferred from the acts of the accused. It is submitted that the intention to kill had been established in light of clear - cut motive of the accused. The “Burden of Proof” lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The respondent - prosecution contends that
- Actus reus
- Mens rea had been proven successfully, thus the accused are guilty of murder of Randhir. INTENTION It is presumed that every sane person intends the result that his action normally produces and if a person hits another person on a vulnerable part of the body, and death occurs as a result, the intention of the accused can be no other than to take the life of the victim and the offence committed amounts to murder. It is humbly contended by the respondent that the common intention of the accused of murdering the deceased had been established by establishing a chain of circumstantial evidence. Section 8, Indian evidence act stipulates that any fact is relevant which shows or constitutes
motive or preparation for any fact in issue or relevant fact. It is further pertinent to note that if there is motive in doing an act, then the adequacy of that motive is not in all cases necessary. Heinous offences have been committed for very slight motive. Absence of motive Assuming for the sake of argument that the accused had no motive, it is humbly contended that absence of motive is no ground for dismissing the case. Motive is immaterial so far as theoffence is concerned and need not be established as the mere existence of motive is by itself, not an incriminating circumstance and cannot take the place of proof. Therefore, absence of proof of motive does break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case and is not fatal as a matter of law. When the circumstantial evidence on record is sufficient to prove beyond any doubt to prove that it was the accused and no one else who intentionally caused the death of the accused then motive of the crime need not to be proved. Moreover, the absence of proof of motive has this effect only, that the other evidence bearing guilt of the accused has to be very closely examined. The circumstances which proof the guilt of the accused are, however not weakened by the facts that motive has not been established. Where the positive evidence against the accused is clear, cogent and reliable the question of motive is of no importance. Case laws : In the case of Imtiaz v State of Uttar Pardesh^1 It was held by this Hon’ble court that “As common intention may develop on the spot among a number of persons, pre-concert in the sense of a distinct previous plan not necessary to attract section 34 of Indian Penal code” In the case of Rajesh Govind Jagesha V. State of Maharashtra^2 It was held by the Hon’ble court “Existence of common intention can be inferred from (^1) Imtiaz v State of Uttar Pardesh 2007 (15) SCC 29 9 (^2) Rajesh Govind Jagesha V. State of Maharashtra 1999 (8) SCC 428
It was held by this Hon’ble court that “if a person is attacked by several person numbering less than five and grevious hurt is caused in such a case all the accused person will be convicted of grevious hurt with the aid of section 34, of Indian Penal code, provided the criminal was done in furtherance of common intention. Therefore, it is humbly contended that the hon’ble sessions court had correctly held the appellants as guilty of murder of Randhir under section 302 read with section 34 of Indian Penal code. It is further submitted before this Hon’ble Court that the common intention of the accused of murdering the deceased had been established by establishing a chain of circumstantial evidence. It is submitted that the physical act of murdering Randhir by giving several blows to him on his legs, chest and head had been established by well linked chain of circumstantial evidence. And even if it is assumed that there was no prior common intention, it may develop on spot among a number of persons, prior meeting of mind need not necessary to attract section 34 of Indian penal Code. For the sake of arguments if it is assumed that accused had no motive “however the absence of proof of motive has this effect only that the other evidence bearing guilt of the accused has to be very closely examined”. Therefore, absence of proof of motive does break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case and is not fatal as a matter of law. The circumstances which proof the guilt of the accused are, however, not weekend by the fact that motive has not been established. Therefore, it is humbly submitted before this hon’ble court that accused were correctly held guilty for the offence of murder given that the requisite men’s rea and Actus rea had established by the prosecution from the facts of the case, beyond a reasonable doubt.
ISSUE NO. 2
Whether the nature of injuries and the nature of the weapon, was such as to cause death of a person It is most humbly submitted before this hon’ble high court that the nature of the injuries andthe nature of weapon were indeed enough to cause death of the person. resting on the facts given in this case, ante-mortem injuries acquired by the deceased were due to joint and physically powerful assault by the aforementioned appellants. Deceased had injury on his legs, chest and head. According to the post-mortem report deceased succumbed due to cumulative injuries of broken ribs and head impact. BROKEN RIBS: Blunt chest trauma is associated with a high risk of morbidity and mortality. Moreover rib fracture constitute major part of blunt chest trauma and each additional rib fracture is associated with an increasing likelihood of developing complications. Respiratory complications develop with rib fracture as a consequence of splinting of the thorax from pain and mechanical instability resulting in inadequate ventilation. Even an isolated rib fracture is associated with significant consequences. This causes decreased lung volumes, atelectasis and may progress to pneumonia, respiratory failure and need for prolonged ventilation and even cause possible death. HEAD INJURY Head injuries include both injuries in brain and those to other parts of the head, such as the scalp and skull. A head injury may cause skull fracture which may or may not be associated with injury to the brain. Moreover if a person hits on brain with a blunt object there are possible chances of hemorrhage and head injury and this can only be done with the intention of causing death. And as seen from the facts appellants had hit the deceased person with several blows on his head with the intention of causing death.
ISSUE NO. 3
Whether the act of the deceased amounted to grave and sudden provocation It was most humbly submitted before this Hon’ble high court that the act of the deceased did not amount to grave and sudden provocation. Grave and Sudden Provocation The death happening due to acts done under the influence of grave and sudden provocation is an exception to the section 300 of IPC. When accused is suddenly provoked by any person and that provocation makes the accused to lose his control which ultimately leads to death of the person who provoked or any other person by mistake or accident then the accused will not be liable for murder but only for culpable homicide. There should be no time gap between the provocation and the retaliatory action caused due to that provocation. The accused cannot take the plea of sudden or grave provocation if the death has been caused due to well managed plan and the main aim behind provocation was to commit murder. For an exception on the ground of “grave and sudden provocation” the following facts must be proved:
1. That the accused received provocation
2. That the provocation was grave and sudden
3. That he was deprived by the provocation of his power of self-control
4. That while thus deprived of his power of self-control and before he could cool down,
he caused the death of the person who gave him the provocation. In Mahmood vs state^9 it has been held by the Hon’ble court that act of the deceased amount to grave and sudden provocation only if the following ingredients are fulfilled;
i. The provocation was sudden,
ii. The provocation was grave;
iii. loss of self-control.
These three ingredients may be considered one by one. (^9) AIR 1961 ALL 538 Mahmood V. State
A. Whether the provocation was sudden or does not present much difficulty. The word ‘sudden’ involves two elements. Firstly, the provocation must not be expected. If an accused plans in advance to receive a provocation in order to justify the subsequent homicide, the provocation cannot be said to be sudden. Secondly, the interval between the provocation and the homicide should be brief. B. The main difficulty lies in deciding whether a certain provocation was grave or not. A bare statement by the accused that he regarded the provocation as grave will not be accepted by the court. The court has to apply an objective test for deciding whether the provocation was grave or not. A good test for deciding whether the provocation was grave or not is this; “is a reasonable man likely to lose self-control as a result of such provocation?’’. If the answer is in affirmative, the provocation will be classed as ‘grave’. If the answer is in negative, the provocation is not grave. In this context, the expression ‘reasonable man” means a normal or average person. A reasonable man is not the ideal man or the perfect being. A normal man sometimes loses temper. There is, therefore, no consistency in saying that, a reasonable man loses self-control due to sudden provocation. C. A reasonable man or normal or average person is a legal fiction. The reasonable man varies from society to society. A judge should not impose personal standards in this matter. By training, a judge is a patient man. But the reasonable man or the normal person need not to have the same standards of behaviour as the judge himself. The reasonable man under consideration is a member of the society, in which the accused was living. So, education and social conditions of the accused are relevant factors, an ordinary exchange of abuses is a matter of common occurrence. A reasonable man does not treat an ordinary exchange of abuse as a basis for grave provocation. It is humbly submitted before this Hon’ble court that it has been shown in the facts that appellants have personal grudges with the deceased. Randhir was in love with Babita and this fact was not hidden from appellants. Appellants in due course had also scolded Babita and had asked her to stay away from Rhandir. Even though after the known fact of Babita and Randhir. Appellant no. 3 had purposely taken a hand loan of Rs 50000/- from Randhir. Appellant no. 3 was supposed to return the amount immediately however he refrained from doing.
