Memorial (Repaired)

IN THE HON’BLE

HIGH COURT OF PUNJAB AND HARYANA

Under Section 374(2) of the Code of Criminal Procedure, 1973

IN THE MATTER OF

1. SHER SHAH 2. GAJENDRA SHAH ….APPELLANTS

3. SURI SHAH

VERSUS

KARIM

…RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 1

TABLE OF CONTENTS LIST OF ABBREVIATION S…………………….……………...…..……………………..….3 INDEX OF AUTHORITIES……………………………………………………………..........4

TABLE OF CASES BOOKS REFERRED STATUTES REFERRED DIGESTS REFERRED WEBSITES REFERRED STATEMENT OF

JURISDICTION……….…………………………...….…………….. .....6

STATEMENT OF FACT S……………………………………………..….……………… .....7 STATEMENT OF

ISSUES…….……………………………………..…………………… .....9

SUMMARY OF ARGUMENTS………………………..….…………………………..…....10

ARGUMENTS ADVAN CED………………………………..…….………………….……… 12 PRAYER……………………………………………………………………………………….20


LIST OF ABBREVIATIONS

S. No.

Abbreviation

Full Form

1.

¶

Paragraph

2.

&

And

3.

ACR

Allahabad Criminal Rulings

4.

Add.

Additional

5.

AIR

All India Reporter

6.

All.

Allahabad

7.

Cr.P.C.

Code of Criminal Procedure

8.

CriLJ

Criminal Law Journal

10.

edn.

Edition

11.

Exh.

Exhibit

12.

Hon’ble

Honourable

13.

i.e.

That is

14.

IPC

Indian Penal Code

15.

NOC

Notes on Cases

16.

Ors.

Others

18.

SC

Supreme Court

19.

SCC

Supreme Court Cases

20.

SCR

Supreme Court Reporter

21.

Sec.

Section

22.

Sr.

Senior

23.

U.P.

Uttar Pradesh

24.

u/s

Under Section

25.

v.

Versus

26.

Vol.

Volume


INDEX OF AUTHORITIES

TABLE OF CASES 1. A.P. Kuttan Panicker and Ors. v. State of Kerala, (1963) CriLJ669. 2. Aijaz Ahmad v. State of U.P., ¶ 10, 2004(2) ACR1596. 3. Bai Radha v. The State of Gujarat , AIR1970SC1396. 4. Chinnapattu Nagan v. State of A.P, 1999(2) ALT(CrI.)460(AP), 5. Emperor v. Mt. Dhirajia, AIR1940All486. 6. Gopal Anjayya Falmari and Ors. v. The State of Maharashtra, (1995)1BomCR116. 7. Hari Chunnilal v. State of Madhya Pradesh, 1977MPLJ321. 8. Kumbhar Narsi Bechar v. The State, AIR1962Guj77. 9. Mukanda and Ors. v. State, 1957CriLJ1187. 10. Nemichand Jain v. Supt. of Central Excise and Customs, (1963) 2 CriLJ 11. Ram Lal v. State of H.P., 2005(3) ShimLC67. 12. Ravindra Pyarelal Bidlan and other v. State of Maharashtra, 1993 CriLJ3019 (Bom). 13. State of Assam v. Mafizuddin Ahmed , AIR 1983 SC 274. 14. State of Madhya Pradesh v. Ram Prasad, AIR1968SC881. 15. State of Rajasthan v. Dhool Singh, AIR2004SC1264. 16. State v. Madhusudan Rao M (2008) 15 SCC 604.


BOOKS REFERRED 

Batuk Lal, “Commentary on the Indian Penal Code, 1860”, Ed. R. P. Kataria and S. K. A. Naqvi, Vol-I, (Section 1 to 300), (Orient Publishing Company, 1st Edn. New D elhi) (2006-07).



Dr. Hari Singh Gour, “The Penal Law of India”, Vol-I, (Section 1 to 120), (Law Publishers (India) Pvt. Ltd., 11th Edn.) (2006).



Halsbury’s Laws of India, Vol-32, “Criminal Procedure – I & II ”, (Lexis Nexis Butterworths, New Delhi) (2007).



K. D. Gaur, “Commentary on Indian Penal Code”, (Universal Law Publishing Co. Pvt. Ltd., New Delhi) (2006).



Ratanlal and Dhirajlal, “ Law of Crimes”, Vol-I & II, Ed. Justice C. K. Thakkar, (Bharat Law House, 25th Edn., New Delhi) (Reprint 2006).

STATUTES REFERRED

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973) 2. The Indian Evidence Act, 1872 (Act 18 of 1872) 3. The Indian Penal Code, 1860 (Act 45 of 1860)

DIGESTS REFERRED 1. C.D. FIELD, COMMENTARY ON LAW OF EVIDENCE ACT, 1872, DELHI

LAW HOUSE, VOL. 1 (13th ed. 2013). 2. HALSBURY’S LAWS OF ENGLAND, CRIMINAL LAW, EVIDENCE AND

PROCEDURE, LEXIS NEXIS BUTTERWORTHS, VOL. 11(4) (4th ed. 2006).

WEBSITES REFERRED     

http://www.supremecourtcaselaw.com http://www.judis.nic.in http://www.heinonline.com http://www.lexis-nexis.com/universe http://www.ncbi.nlm.nih.gov/sites/myncbi/


STATEMENT OF JURISDICTION

The Counsels, appearing on behalf of the Respondent, humbly submit this memorandum under Sec. 314 of the Code of Criminal Procedure, 1973. The memorandum sets forth the facts, contentions and arguments in the present case.

The counsel humbly submits that this Hon’ble Court has jurisdiction to try the instant matter under Sec. 374 (2)1 of the Code of Criminal Procedure, 1973.

1

Section 374(2) – Appeal from convictions: 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 against him or against any other person convicted at the same trial] may appeal to the High Court.


STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are summarized as follows: 1. Karim worked as a system operator at a computer Centre in Jajhhar District, Haryana and lived in the town. His village was at a distance of 12 kilometres from his workplace which he ordinarily visited on Saturdays and Sun days. 2. Sher Shah was a farmer who lived with his family consisting of his wife, Sobti, son Gajendar Shah and a daughter Naina. Sher Shah’s brother, Sur i Shah, also lived in the same household. He was used to drinking and gambling and owed a debt of Rs. 20,000 to Karim. 3. Whenever Karim demanded his money, Suri Shah showed his helplessness but never denied to pay off his debt. 4. Karim was in love with Naina and used to meet Naina on the weekends when her father was not at home on the pretext that he had come to collect the money. Sher Shah did not like it and told Karim many a times not to visit his home in his absence. He also scolded his daughter for meeting Karim but Karim did not stop visiting Naina. 5. During the day on Monday, 8th August 2010, Karim received a phone call from Suri Shah inviting him to come that evening to collect his debt. 6. Karim went to their house around 8.30 P.M. The members of Naina’s family had finished their dinner and were preparing to go to sleep. On hearing some whispering voices coming from the backyard of their house, Sher Shah with his brother Suri Shah and son Gajendar Shah went there to investigate. 7. They saw Karim talking with Naina. Sher Shah lost his temper and started abusing Karim. Gajendar Shah brought a lathi from inside and gave a blow to Karim on the leg. Then Suri Shah grabbed the lathi from Gajendar Shah and started beating Karim mercilessly giving blows on his head and chest.


8. On hearing the hue and cry, other villagers came to the scene. They found Suri Shah giving blows to Karim while the other two were shouting abuses on Karim. Karim was bleeding from the head and became unconscious. He was taken to the hospital by the villagers where he died three days later without regaining cons ciousness. 9. The post-mortem report confirmed that Karim suffered injuries on the head and fractures of three ribs. There were many concussions on different parts of his body. There was much loss of blood. While none of the injuries independently was sufficient to cause death, the cumulative result was sufficient in the ordinary course o f nature to cause death. 10. FIR was registered against Suri Shah, Gajendar Shah and Sher Shah under Section 3072 read with S. 343 of the Indian Penal Code. Three days later when Karim died, it was changed to Section 3024 r/w 34 IPC. 11. The session court charged and convicted all the three accused persons under Section 302 r/w 34 of the IPC and sentenced them to life imprisonment for the murder of Karim. 12. The accused persons pleaded grave and sudden provocation in their defence. They also pleaded that the prosecution had failed to prove existence of common intention of all the three accused to kill Karim. In the absence of proof of common intention, they cannot be convicted under Section 302 r/w 34 IPC. 13. The three accused have filed separate appeals to the High Court against the order of conviction and sentence and henceforth, the matter is listed before this Hon’ble Court.

2

Section 307-Attempt to murder: Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. 3 Acts done by several persons in furtherance of common intention : When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 4

Section 302. Punishment for murder:

Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.


STATEMENT OF ISSUES

The following issues have arisen for determination before the Hon’ble Court in the instant matter:

1. WHETHER THE ACCUSED PERSONS WERE RIGHTLY CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE?

2. WHETHER THE ACCUSED PERSONS ARE LIABLE TO BE PUNISHED UNDER SECTION 34 OF INDIAN PENAL CODE?


SUMMARY OF ARGUMENTS

1. THE ACCUSED PERSONS WERE RIGHTLY CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE.

The counsels on behalf of the respondents humbly submit that the judgment passed by the Sessions Court is appropriate and the conviction of the accused under section 3025 of IPC is correct and as per the demands of justice. To convict any accused under the aforementioned section, the requirements of section 3006 of IPC needs to be fulfilled. The instant case comes under the purview of clause 4th of this section since the accused has committed the act which he knew to be imminently dangerous that it would, in all probability, cause death or such bodily injury as is likely to cause death and committed it without any excuse for incurring the risk of causing such death or injury as aforesaid. The accused Gajendra Shah committed the murder of Karim by bringing a lathi from inside and beating Karim on the leg. Suri Shah then grabbed it and started beating Karim mercilessly, giving blows on his head and chest.7 He had the knowledge that this act is imminently dangerous to the extent that in all human probabilities it would lead to his death or at least cause him such bodily injuries which might lead to death. Moreover, he did not have any excuse for undertaking such a risk in the sense that it was necessary for him to do such an act at that very particular moment. This is an undisputed fact that the post-mortem report confirmed that Karim suffered

5

Section 302. Punishment for murder:

Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine. 6 Section 300 of IPC-Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or — Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 7 Factsheet ¶ 7.


injuries on the head and fractures of three ribs. While none of the injuries independently was sufficient to cause death, the cumulative result was sufficient in the ordinary course of nature to cause death.8 Therefore, the act committed by the accused was so grave and heinous in nature that his conviction under section 302 for the sentence of life imprisonment is appropriate and required in order to deliver justice to the deceased.

2. THE ACCUSED PERSONS ARE LIABLE TO BE PUNISHED UNDER SECTION 34 OF INDIAN PENAL CODE.

If the criminal act is done in furtherance of common intention, each person is liable for the result of such act. Once it is prove that the criminal act was done in furtherance of common intention of all, each person is liable for the criminal act as if it were done by him alone9. Essential ingredient of S.34: i)

There must be a criminal act.

ii)

The criminal act done by several person

iii)

The act is done in furtherance of common intention of all.

Participation, in the commission of the offence, in furtherance of common intention invites its application.10 Accused along with the principal offender intended to do the offence prior to the commission of the offence. They have got inspired and incited by each other’s presence. The case in which the ingredients are satisfied or established all accused will be liable for the said offence.11 Under the provision of S.34 the essence of the liability is to be found in the existence of a common intention animating from the accused leading to the commission of a criminal act in furtherance of such intention.12 Thus it is humbly submitted before the Hon’ble Court that from all the facts presented, the respondent has proved the common intention from the part of all the three accused to do the alleged crime.

8

Factsheet ¶ 9. Shyamal Ghosh v State of West Bengal 2012 (6) SCALE 381 10 Momin v State of Maharashtra,1971 SC 885 11 Gurdatta Mal v State of UP ,1965 SC 257 12 Chinta Pulla Reddy v State OF Andhra Pradesh AIR 1993 SC 1899 9


ARGUMENTS ADVANCED

[I] THE ACCUSED WAS RIGHTLY CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

1. The counsels on behalf of the respondents humbly submits that the order passed by the Sessions Court of sentencing the accused for imprisonment for life for his offence committed under section 300 and punishable under section 302 of IPC is appropriate. The conditions of section 300 of IPC have been satisfied .

2. The accused has committed the offence of murder because act done by him falls under the definition of Murder as defined in Section 30013 of IPC. The present case comes under the 4th clause of the said section. Clause 4 of the Section talks about a person committing any act and knowing that the act thus committed is so imminently dangerous that it will in all probability cause death or bodily injury as is likely to cause death and that person commits the act without any excuse for incurring the risk of causing death or such injury aforesaid.14

3. The essential ingredients of this clause are15 – (a) The act must be imminently dangerous , (b) The person committing the act must have knowledge that it is so imminently dangerous, As per the Oxford Dictionary, the word knowledge means: ‘Acquaintance with a fact, perception, or certain information of a fact matter; state of being award or informed; consciousness (of anything).’16

13

Supra Note 6 Ibid , clause 4. 15 K I VIBHUTE, PSA PILLAI’S CRIMINAL LAW , LEXIS NEXIS PUBLICATION, P-582 16 Justice C.K.Thakker, ‘Encyclopaedic Law Lexicon’, Volume II, Edn.2010, ASHOKA LAW HOUSE, p-2568 14


For practical and legal purposes, ‘knowledge’ means the state of mind entertained by a person with regard to existing facts which he has himself observed, or the existence of which has been communicated to him by persons whose veracity he has no reason to doubt.17 (c) That in all probability it will cause – either Death or Bodily injury as is likely to cause death and; (d) Such imminently dangerous act should be done without any reason or justification for running the risk of causing death or such injury.

4. This present act of the accused persons of bringing the lathi from inside and giving blows over his body mercilessly shows that the person had the knowledge that the act is so imminently dangerous that in all probability it will cause death.18 Suri Shah gave blows on head and chest of Karim and was also aware of the same and had the knowledge about the act of giving blows that in all probability would cause the death of the respondent and still doing the act fulfills the condition of the Clause 4 of Section 300 of IPC and brings the act of the accused persons under the definition of Murder.

5. Held since no special knowledge is needed to know that one may cause death by beating if one give blows on chest and head it is obvious that the accused must have known that he was running the risk of causing the death of the victim or such bodily injury as was likely to cause his death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4th clause of section 300, Penal Code. In other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death.19

6. In the case of State of M.P. v. Ram Prasad , the Hon’ble Supreme Court held that this was the case where it was difficult to find the intention of the accused. But then the Supreme Court 17

Ibid Supra Note 5 19 State of M.P . v. Ram Prasad AIR 1968 SC 881 18


observed that in respect of the clause 1-3 of Section 300 of IPC, the question would rise as what was the intention of the accused, the nature of injuries he intended to cause etc. Then the Supreme Court opined that it would be simpler to place reliance on Clause 4 because it contemplates only ‘knowledge’ and no intention. In this case, when the accused gave blows, he must have known that the act would result in his death.20 This knowledge is sufficient to bring the act of the accused under the Clause 4, Section 300.

7. The numbers of injuries only doesn’t matter; it is also the nature of the injuries and part of body where it is caused.21 If the injuries are sufficient enough to cause death then they could be anything irrespective of the number of injuries. In the present case the deceased had sustained injuries on the head and fractures of three ribs. There were many concussions on different parts of his body. There was much loss of blood and they were sufficient to cause the death. In one of the case Court held that having the knowledge of the act wouldn’t prima facie make it murder but another essential ingredient for an act to be murder is that there shouldn’t be any excuse and it is to be wholly inexcusable when even a risk of gravest possibly character, which must normally result in death, is incurred.22

8. If there was no intention to kill, then it can be murder only if – a) The accused knew that the injury inflicted would be likely to cause death or b) That it would be sufficient in the ordinary course of nature to cause death or c ) That the accused knew that the act must in all probability cause death.23

9. In this case the accused had intention to kill as well as accused knew that the act must in all probability cause death, so he doesn’t have any chance to run from his liability. Both knowledge and intention can be seen here in the mind of accused by the act he has done.

20

AIR 1968 SC 881 State of Rajasthan v. Dhool Singh, AIR2004SC1264. 22 Emperor v. Mt. Dhirajia, AIR1940All486. 23 Willie (William) Slaney v. The State of Madhya Pradesh, AIR1956SC116. 21


10. In order to hold a person responsible for having caused the death, it is not necessary that his act should be the immediate cause of death, in the medical sense. If accused has caused injuries then he is liable for murder.24 And in the present case the accused had caused sufficient injuries to hold him responsible for the act.

Intention of Accused 11. “In the present analysis of the mental element in crime, the word ‘intention’ is used to denote the mental attitude of a man who has resolved to bring about certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims.” 25

12. During the day on Monday, 8th August 2010, Karim received a phone call from Suri Shah inviting him to come that evening to collect his debt. Though Karim ordinarily used to meet Naina on the weekends when her father was not at home but that day, it was Suri Shah who invited Karim himself. So Karim had a valid reason to be at Sher Shah’s house and was at no fault. Suri Shah owed a debt of 20,000 rupees and Sher Shah had told Karim not to visit his home when he was absent. The admitted facts here are that the appellant and the deceased were not having good relations and Suri Shah had no means to repay his debt off so can do anything in that order.

13. The deceased was mercilessly given blows on his head and chest and on hearing the hue and cry, villagers came to the scene who were the witnesses and found Suri Shah giving blows to Karim while the other two were shouting abuses on Karim. Karim was bleeding from the head and became unconscious.

Actus Reus of Accused – 14. Actus Reus means a ‘wrongful act’ and is a legal maxim.26 24

Kumbhar Narsi Bechar v. The State, AIR1962Guj77. Russell on Crime (12th Edition at page 41) mentioned in Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-2381 26 Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141 25


The term may be so defined as to include accts of omission as well as acts of commission, and 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.27 The admitted facts here are that the appellant and the deceased were not having good relations and Suri Shah had no means to repay his debt for which he always showed helplessness. On the other hand, Karim was in love with Naina and used to meet Naina on the weekends when her father was not at home on the pretext that he had come to collect the money. Sher Shah did not like it and told Karim many a times not to visit his home in his absence. He also scolded his daughter for meeting Karim but Karim did not stop visiting Naina. The accused were already fed up with the regular tense atmosphere and more annoyed by seeing Karim talking to Naina in the backyard of their house. Sher Shah lost his temper and started abusing Karim. Gajendar Shah brought a lathi from inside and gave a blow to Karim on the leg. Then Suri Shah grabbed the lathi from Gajendar Shah and started beating Karim mercilessly giving blows on his head and chest. On hearing the hue and cry, other villagers came to the scene. They found Suri Shah giving blows to Karim while the other two were shouting abuses on Karim. Karim was bleeding from the head and became unconscious. He was taken to the hospital by the villagers where he died three days later without regaining cons ciousness.

15. In the instant case, the accused persons had the knowledge that fiving blows on head and chest would lead to Karim’s death as a consequence of his imminently dangerous act and he still committed the act. 16. The accused would be liable for the offence of murder though there was not pre-meditation of the act. So the act of murder would be punishable under the section of 302 28of IPC. 17. The post-mortem report confirmed that Karim suffered injuries on the head and fractures of three ribs. There were many concussions on different parts of his body. There was much loss of blood. While none of the injuries independently was sufficient to cause death, the cumulative 27

Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141. See Halsbury’s Laws of England, 4th Ed., Vol.11, p-13. 28 Supra note 13.


result was sufficient in the ordinary course of nature to cause death. This proves that accused persons have committed the offence of the Murder.

18. For the act done by the accused he must be punished. The act committed by the accused persons comes under the Section 30229 of Indian Penal Code. The said section prescribes the punishment for murder. In the present case, accused has committed the murder of Karim (as proved above) and for this they are liable under Section 302. In the Section 302 the punishment prescribed is either death sentence or life imprisonment. Here, as the case doesn’t fall under the purview of rarest of the rare case, so death penalty cannot be imposed, hence the option left is life imprisonment.30 Life imprisonment to the accused is completely justified if we go as per the grounds mentioned above.

[II]

THE

ACCUSED

WAS

RIGHTLY

CONVICTED

FOR

THE

OFFENCE

PUNISHABLE UNDER SECTION 302 OF IPC.

19. It is most humbly submitted that Co-Accused shared a common intention to murder Karim. It was Sher Shah lost his temper and started abusing Karim. Gajendar Shah brought a lathi from inside and gave a blow to Karim on the leg. Also, Suri Shah grabbed the lathi from Gajendar Shah and started beating Karim mercilessly giving blows on his head and chest. On hearing the hue and cry, other villagers came to the scene. They found Suri Shah giving blows to Karim while the other two were shouting abuses on Karim.31

20. The Supreme Court while dealing with the question of conviction under Section 307 alongwith Section 34 in the matter of Girija Shankar v. State of U.P. 32 held that: “Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The 29

Supra Note 5 Supra Note 8, p-84 31 Factsheet ¶ 7& 8. 32 Girija Shankar v. State of U.P. (2004)3SCC793. 30


distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each o f them has done it individually by himself.”

21. Further in the matter of Ashok Kumar v. State of Punjab,33 it was observed that “the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.”

34: “The Section 22. It was further observed by the Court in the matter of Gir ij a Shankar

does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with 33 34

Ashok Kumar v. State of Punjab 1977 CriLJ 164. Girija Shankar v. State of U.P. (2004) 3 SCC 793 .


Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.”

23. In the matter of Ch. Pulla Reddy and Or s. v. State of Andhra Pradesh 35, it was held that: “Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.”

24. It is submitted that the common intention or plan may be proved either from conduct, circumstances or from incriminating facts.36

25. It is submitted it can be inferred from the instant facts that the co-accused had the common intention as Karim was invited by Suri Shah to their house and in the presence of Sher Shah, on a weekday. Moreover, the factsheet provides that they saw Karim talking with Naina. Sher Shah lost his temper and started abusing Karim. Gajendar Shah brought a lathi from inside and gave a blow to Karim on the leg. Then Suri Shah grabbed the lathi from Gajendar Shah and started beating Karim mercilessly giving blows on his head and chest.37

26. In light of the above, it can be rightly construed that Co-accused had the common intention to kill and cause grievous hurt to Karim as all the ingredients required under Section 34 are satisfied. It is humbly submitted that Accused persons are liable to be convicted under Section 34 read along with Section 302 of the Indian Penal Code. 35

Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh 1993 CriLJ 2246. Krishnan v. State AIR 2003 SC 2978: (2003) 7 SCC 56; Gopi Nath v. State of U.P. AIR 2001 SC 2493: (2001) 6 SCC 620. 37 Factsheet ¶ 7. 36


PRAYER

In light of the facts presented, issues raised, arguments advanced and authorities cited the Counsel for the Appellants humbly pray before this Hon ’ble Court that it may be pleased:

1. To declare that the Judgment given by the Sessions Court is appropriate;

2. To declare that the Appellants have been rightly convicted for the offence punishable under Section 302 of Indian Penal Code;

3. To convict the accused for the offence punishable under Section 34 of Indian Penal Code along with Section 302 of Indian Penal Code;

Or pass any other order or make directions as the Hon’ble Court may deem fit to meet the interest of justice, equity and good conscience in the instant case.

And for this act of kindness, the Respondent shall duty bound forever pray.

Respectfully Submitted on Behalf of the Respondent.

COUNSELS FOR RESPONDENT


Memorial (Repaired)

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