M.P.

LAW COLLEGE
INTRA COLLEGE MOOT COURT 2019

Before
THE HONORABLE HIGH COURT OF BOMBAY
BENCH AT AURANGABAD

The Appeal filed under Section 302 read with Section 34

of Indian Penal Code, 1860
Criminal Appeal No: /2017

In the matter of

Tatyasaheb Appellant No. 1

Prince Appellant No. 2
Nagraj Appellant No. 3
Vs
The State of Maharashtra Respondent

MEMORIAL SUBMITTED BY
COUNSEL ON BEHALF OF THE RESPONDENT
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DETAILED ARGUMENTS

Whether the Appellants can be prosecuted under section 302 read with Section 34 of
the INDIAN PENAL CODE. 1860?

It is humbly contended that the Hon'ble Sessions Court correctly held the Appellants as
guilty of murder of Parshya under Section 302 read with Section 34 of IPC. Section 302 read
with Section 34, IPC envisages commission of murder by two or more people in furtherance
of a common intention. Section 300 ofIPC gives the definition of murder and enumerates the
ingredients of the offence.

Section 300 of Indian Penal Code contemplates that a person is guilty of murder if he
intentionally causes the death of a person or causes such bodily injury as he knows, is likely
to cause death of that person or causes such bodily injury, which in the ordinary course of
nature results into death or commits an act so dangerous that it must, in all probability cause
death of that person.

Section 34 of Indian Penal Code contemplates the doing of an act by several persons in
furtherance of common intention. The constructive liability under this section would arise
only if two conditions are fulfilled:
a) There must be common intention to commit the crime; and
b) There must be participation by all the persons in doing such act in furtherance of that
intention. Ifthese two ingredients are established all the accused would be liable for the said
offence. 1
The leading feature of Sec 34 is the element of participation in action. 2
It is the essence of this section that the person must be physically present at the actual
commission of the crime. Criminal sharing, overt or covert, by active presence or by distant
direction, making out a certain measure of jointness in the commission of the act is the
essence of this section. 3

1 Gurdatta Mal AIR 1965 SC 257

2 Chikkarange Gowda AIR 1956 SC 731
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 3 Tukaram Ganpat Pandare AIR 1974 SC 514

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In order to convict persons vicariously under Sec 34 it is not necessary to prove that each and
every one of the accused had indulged in overt acts. Even so, there must be material to show
that the overt act or acts of one or more of the accused was or were done in furtherance of the

common intention of the accused. 4 A person may be "constructively liable" for acts not
committed by him by reason of Sec 34

The terms Actus Reus and Mens Rea come from "Actus non facit reum nisi mens sit rea'',
which literally means "an act does not make a person guilty unless mind is also guilty".

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 (1) and Mens
Rea
(2) had been proven successfully, thus The Accused are guilty of murder of Parshya

(1) Actus Reus

Actus Reus is any wrongful act5• Thus, in a case of murder, Actus Reus 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

Circumstantial Evidence
It is a well settled principle that where the case is mainly based on circumstantial evidence,
the court must satisfy itself that various circumstances in the chain of evidence should be
established clearly and that the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused.6

It is the humble contention of the Respondent that the physical act of murdering Parshya by
giving blows to him on his leg, chest and head had been established by well linked chain of
circumstantial evidence.

4
Rambilas Singh AIR 1989 SC 1593
5 Aiyar,
P Ramanathan, The Law Lexicon, p. 49 (2nd ed 2006.)
6
Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
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The Supreme Court has held that Mens Rea is an essential ingredient of a criminal offence. 13
In a criminal court one often wants to test the alleged guilty mind by seeing what was the
motive of the alleged criminal in doing the particular act. It is not essential under IPC for
prosecution to establish motive. But as a matter of common sense, this is usually of
importance, because an average man does not commit a criminal offence unless he has a
strong motive for doing it. 14

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. 15

The motive behind the crime is a very relevant fact of which evidence can be given. The
absence of motive is also a circumstance which is relevant for assessing the evidence. The
circumstances which prove the guilt of the accused are, however, not weakened by the fact
that motive has not been established. 16

Where the positive evidence against the accused is clear, cogent and reliable, the question of
motive is of no importance. 17

It is the humbly contended that Appellant's jealousy and sour relations, which had been
established by way of circumstantial evidence, constitute the motive for the offence

13Nathulal AIR 1966 SC 43

14
Shamdasini P D AIR 1929 Born 443
1s Atley AIR 1955 SC 80
1s Rajinder Kumar AIR 1966 SC 1322
 17
Gurcharan Singh AIR 1956 SC 460

13
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Ar gue ndo , 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 the

offence is concerned, and need not be established 18 as the mere existence of motive is by
itself, not an incriminating circumstance and cannot take the place of a proof. 19
Therefore, absence of proof of motive, does not 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.20

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 be proved. 21

The mere missing link of non-establishment of clear motive of accused 2 and accused 3 is
immaterial and is not a ground for dismissing the case, in light of the well-established motive
of Accused 1 to commit the murder.

Therefore, it is humbly submitted before this Hon 'ble Court that The Accused were correctly
held guilty for the offence of murder, given that the requisite Mens Rea and Actus Reus had
been established by the Prosecution from the facts of the case, beyond a reasonable doubt.
18 RATANLAL AND DHIRAJLAL, The Indian Penal Code, (26thed., 2007)
19 State of Punjab v Sucha Singh, AIR 2003 SC 1471.
2
0 Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
21 State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
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MANIKCHAND PARADE LAW COLLEGE INTRA COLLEGE MOOT COURT 2019

Whether the nature of the injuries and the nature of the weapon were 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 and
the nature of the 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 was 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. Rib fractures
constitute a major part of blunt chest trauma and each additional rib fracture is associated
with an increasing likelihood of developing complications. Each additional rib fracture in
adults increases the odds of mortality by 19% and of developing pneumonia by 27%.
Respiratory complications develop with rib fractures 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, particularly in the older
population. This causes decreased lung volumes, Atelectasis, and may progress to
pneumonia, respiratory failure, need for prolonged ventilation and possible death.22
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tteaa mJury
Head injuries include both injuries to the brain and those to other parts of the head, such as
the scalp and skull. Head injuries can be closed or open. A closed (non-missile) head injury is
where the dura mater remains intact. The skull can be fractured , but not necessarily.
A penetrating head injury occurs when an object pierces the skull and breaches the dura
mater23.

Brain injuries may be diffuse, occurring over a wide area, or focal, located in a small, specific
area. A head injury may cause skull fracture, which may or may not be associated with injury
to the brain. Some patients may have linear or depressed skull fractures. Ifintracranial
hemorrhage occurs, a hematoma within the skull can put pressure on the brain. Types of
intracranial hemorrhage include subdural, subarachnoid, extradural, and intraparenchymal
hematoma. Craniotomy surgeries are used in these cases to lessen the pressure by draining off
blood 24 .

A contusion is a bruise to the brain itself. A contusion causes bleeding and swelling inside of
the brain around the area where the head was struck. Contusions may occur with skull
fractures or other blood clots such as a subdural or epidural hematoma. Bleeding that occurs
inside the brain itself (also called intraparenchymal hemorrhage) can sometimes occur
spontaneously.25

As per the Post-Mortem report, this concludes that the deceased had died due to cumulative
damage of broken ribs and head injury, caused by an impulsive impact by a blunt object, in
this case -a walking stick.

Hereby it is most humbly and respectfully submitted to the court that there is enough
literature and co-relative evidence which proves that both nature of injury and nature of the
weapon was enough to cause death of Parshya.

23Daisley A, Kischka U, Tams R (2008). Head Injury. Oxford: OUP Oxford

24Macfarlane R, Hardy DG (1997). Outcome after Head, Neck and Spinal Trauma: a medicolegal
guide. Oxford
25
Powell T (2004). Head Injury: A Practical Guide (2nd ed.}. United Kingdom
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Whether the act of the deceased amounted to grave and sudden provocation?

It is most humbly submitted before this Hon'ble High Court that the act of the deceased did
not amount to grave and sudden provocation.

It is to be noted that according to the facts of the case, it looks like there was a conspiracy to
murder Parshya. Parshya was in love with Aarchi and this fact was not hidden from the
appellants. Appellants in due course had also scolded Aarchi and had asked her not to
meet Parshya.

Even though after the known fact of Aarchi and Parshya - we later understand that
the Appellant No.3 had purposely taken a hand loan of Rs. 12000/- from Parshya.
Appellant No.3 was supposed to return the amount immediately however, he refrained
from doing so.

Once the amount was arranged -Appellant No.3 asks Parshya to come to his home to collect
the amount. Parshya then reaches the house on 17th June 2017 around 21: 15 hrs to collect
the loan amount. Here the motive was obvious that Parshya was to come to collect money
and will be willing to talk to Aarchi. This will be a good opportunity to prove a sudden
spurt of hate and hence a heated argument. Else Appellant No.3 would have met Parshya
elsewhere to return the loan amount.
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26
Itwill be also useful here to refer to the judgment of the Apex Court , wherein the Court has
observed that:

The intention to cause death can be gathered generally from a combination of a few or
several of the following, among other, circumstances:

(1) Nature of the weapon used;

(2) Whether the weapon was carried by the accused or was picked up from the spot;
(3) Whether the blow is aimed at a vital part of the body;
(4) The amount of force employed in causing injury;
(5) Whether the act was in the course of sudden quarrel or sudden fight or free for all
fight;
(6) Whether the incident occurs by chance or whether there was any pre- meditation ;
(7) Whether there was any prior enmity or whether the deceased was a stranger;
(8) Whether there was any grave and sudden provocation, and if so, the cause for such
provocation;
(9) Whether it was in the heat of passion;
(10) Whether the person inflicting the injury has taken undue advantage or has acted in
a cruel and unusual manner;
(11) Whether the accused dealt a single blow or several blows.

26
Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC 444
 TABLE OF CONTENTS

,
TABLE OF CONTENTS
......................................................................................................................2
.
\. ·
TABLE OF AUTHORITIES..................................................................................................................3 -
CASES.................................................................................................................................................. 3
CONSTITUTION AND STATUTE....................................................................................................4
-
BOOKS & ONLINE REFERENCE...................................................................................................4
LEXICONS............................................................................................................................................ 4
WEBSITES:........................................................................................................................................... 4
STATEMENT OF JURISDICTION......................................................................................................5
STATEMENT OF FACTS....................................................................................................................6
STATEMENT OF CHARGES..............................................................................................................7
ISSUES RAISED................................................................................................................................8
SUMMARY OF ARGUMENTS............................................................................................................9
DETAILED ARGUMENTS...................................................................................................................... 10
Whether the Appellants can be prosecuted under section 302 read with Section 34 of the
INDIAN PENAL CODE. 1860?
.......................................................................................................................................................
10
Whether the nature of the injuries and the nature of the weapon were such as to cause death of
a person?
............................................................................................................................................................
15
Whether the act of the deceased amounted to grave and sudden provocation?..........................17
Whether the Sessions Court was justified in sentencing the Appellants with life imprisonment in
connection with the act committed by them?
.......................................................................................................................................................
19
PRAYER................................................................................................................................................. 21
 MANIKCHAND PARADE LAW COLLEGE INTRA COLLEGE MOOT COURT 2019

TABLE OF AUTHORITIES

CASES
1. Gurdatta Mal AIR 1965 SC 257
2. Chikkarange Gowda AIR 1956 SC 731
3. Tukaram Ganpat Pandare AIR 1974 SC 514
4. Rambilas Singh AIR 1989 SC 1593
5. Aiyar, P Ramanathan, The Law Lexicon, p. 49 (2nd ed 2006.)
,
6. Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
\
7. Commissioner oflncome Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4 .

8. State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722

9. 1951, 3 Pepsu LR 635
10. Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
11. Laxman v. State of Maharashtra, AIR 1974 SC 1803
12. State v. Dinakar Bandu (1969) 72 Born LR 905)
13. Nathulal AIR 1966 SC 43
14. Shamdasini P D AIR 1929 Born 443
15. Atley AIR 1955 SC 80
16. Rajinder Kumar AIR 1966 SC 1322
17. Gurcharan Singh AIR 1956 SC 460
18. RATANLAL AND DHIRAJLAL, The Indian Penal Code, (26thed., 2007)
19. State of Punjab v Sucha Singh, AIR 2003 SC 1471.
20. Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
21. State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)
22. Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC
444
23. State of MP v. Rammi, 1999 (1) JLJ 49 (MP)
24. State of MP v. Dharkale, AIR 2005 SC 44
25. State of WB v. Orilal Jaiswal, AIR 1994 SC 1418
 MANIKCHAND PARADE LAW COLLEGE INTRA COLLEGE MOOT COURT 2019

CONSTITUTION AND STATUTE

1. The Constitution oflndia, 1949
2. The Indian Penal Code, 1860
3. Code of Criminal Procedure, 1973

BOOKS & ONLINE REFERENCE

1. Abstract from Annalise Unsworth, Kate Curtis, and Stephen Edward Asha,
Treatments for blunt chest trauma and their impact on patient outcomes and health ,
service delivery
Published online on 8th FEB 2015
https://www.ncbi .nlm.nih.gov/pmc/articles/PMC4322452/ last accessed on 28th FEB
2019.
2. Daisley A, Kischka U, Tams R (2008). Head Injury. Oxford: OUP Oxford
3. Macfarlane R, Hardy DG (1997). Outcome after Head, Neck and Spinal Trauma: a
medicolegal guide. Oxford
4. Powell T (2004). Head Injury: A Practical Guide (2nd ed.). United Kingdom
5. Modi"s Medical Jurisprudence and Toxicology, (23rd Edition)
6. Ratanlal and Dhirajlal, The Indian Penal Code, (33rd edition)
7. Ratanlal and Dhirajlal, The Law of Evidence, (26th Edition)
8. Sarkar, Law of Evidence, (17th Edition)
9. Sarkar, The Code of Criminal Procedure, (11th edition)

LEXICONS
Aiyar, P Ramanathan , The Law Lexicon (2nd edition 2006.)

WEBSITES:
www.indiankanoon.com
www.scconline. com
www.judis.nic .in
www.wikipedia.com
www.casemme.com
 MANIKCHAND PARADE LAW COLLEGE INTRA COLLEGE MOOT COURT 2019

STATEMENT OF JURISDICTION

The Appellants humbly approach the Hon'ble High Court under Section 374(2) of the Code
of Criminal Procedure, 1973, which reads as follows:

,
Any person convicted on a trial held by a High Court in its extraordinary original criminal
\.
jurisdiction may appeal to the Supreme Court.

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial 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.

Save as otherwise provided in sub-section (2), any person ,-

Convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class, or
sentenced under section 325, or
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.

The respondents humbly submit to the jurisdiction of this Hon'ble Court.

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STATEMENT OF FACTS
Tatyasaheb (Appellant No. 1), an elderly farmer lived with his family consisting of his wife
(Sumitra), son Prince (Appellant No. 2), Daughter Aarchi & Brother Nagraj (Appellant No
3). Parshya, a boy who lived in the same village was in love with Aarchi. Tatyasaheb did not
like Aarchi's closeness to Parshya and had publicly warned both Parshya and Aarchi to stay
away from each other. On several occasions he publicly scolded Aarchi and asked her to
refrain from meeting Parshya.

Nagraj had borrowed Rs. 12000/- from Parshya and though he had promised to pay him
immediately, he kept asking Parshya for time to repay the Rs. 12000/-.

On 17th June 2017, Nagraj invjted Parshya to collect 12000/-. Parshya reached Tatyasaheb's
house around 9:15 pm, when the family had just finished their dinner, he saw Aarchi from the
window and signaled her to come into the backyard. Tatyasaheb, Nagraj and Prince on
hearing the whispers from the backyard went unarmed to investigate the matter. On seeing
Parshya and Aarchi together Tatyasaheb lost his temper, asked Aarchi to return to the house
and started abusing Parshya. Parshya replied back and there was a heated argument between
them. During the course of the argument, Prince went jnto the house and brought
Tatyasaheb's walking stick and gave blows on Parshya's leg. Nagraj grabbed the walking
stick and started beating Parshya and gave blows on Parshya's head and chest.

Parshya was taken to the civil hospital by the villagers, where he died four days later. The
Post-mortem report confirmed that Parshya died due to injuries suffered by him on his head
and due to fracture of two ribs. However, none of the injuries independently were sufficient
to cause Parshya's death while they cumulatively were sufficjent in the ordinary course of
nature, to cause his death.

The FIR was registered under section 307 read with Section 34 of INDIAN PENAL CODE,
1860 and after the death of Parshya; 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 &
sentenced them to life imprisonment for having committed the murder of Parshya.

Aggrieved and dissatisfied by the judgment of conviction passes by the learned Trial Judge,
the Appellants have preferred the present appeal.

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MANIKCHAND PAHADE LAW COLLEGE INTRA COLLEGE MOOT COURT

2019

STATEMENT OF CHARGES

The FIR was registered under section 307 read with Section 34 of Indian Penal Code, 1860
and after the death of Parshya; 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 &
sentenced them to life imprisonment for having committed the murder of Parshya.
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MANIKCHAND PAHADE LAW COLLEGE INTRA COLLEGE MOOT COURT 2019

ISSUES RAISED

,
A. Whether the Appellants can be prosecuted under section 302 read with Section 34 of the
INDIAN PENAL CODE. 1860?
B. Whether the nature of injuries and the nature of the weapon, was such as to cause death of
a person?

C. Whether the act of the deceased amounted to grave and sudden provocation?

D. Whether the Sessions Court was justified in sentencing the Appellants with life
imprisonment in connection with the act committed by them?
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SUMMARY OF ARGUMENTS

A. Whether the Appellants can be prosecuted under section 302 read with Section 34 of
the INDIAN PENAL CODE. 1860?
It is humbly contended that the Hon'ble Sessions Court correctly held the Appellants as
guilty of murder of Parshya under Section 302 read with Section 34 of IPC. Section 302 read
with Section 34, IPC envisages commission of murder by two or more people in furtherance
of a common intention. Section 300 ofIPC gives the definition of murder and enumerates the
ingredients of the offence.

B. 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 and
the nature of the 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 was due to joint and
physically powerful assault by the aforementioned appellants. Deceased had injury on his
legs, chest and head.

C. Whether the act of the deceased amounted to grave and sudden provocation ?
It is most humbly submitted before this Hon'ble High Court that the act of the deceased did
not amount to grave and sudden provocation rather it was a pre-mediated, orchestrated and
with a well defined Modus Operandi of the Appellants

D. 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 Sessions Court correctly held the Accused as guilty
of murder of Parshya under Section 302 read with Section 34 of IPC. Section 302 read with
Section 34, IPC envisages commission of murder by two or more people in furtherance of a
common intention. Section 300 of IPC gives the definition of Murder and enumerates the
ingredients of the offence.