Memorial of Respondents for an appeal filed by the accused charged u/S.302 of IPC r/w S.32., Assignments of Law of Evidence

Download Memorial of Respondents for an appeal filed by the accused charged u/S.302 of IPC r/w S.32. and more Assignments Law of Evidence in PDF only on Docsity! [MEMORIAL ON BEHALF OF THE RESPONDENT ON BEHALF OF THE RESPONDENT] MOOT COURT, 2020 Before the Hon’ble THE PUNJAB AND HARYANA HIGH COURT APPEAL FILED UNDER SECTION 374 OF THE CRIMINAL PROCEDURE CODE, 1973 IN CRIMINAL APPEAL NO: 007 / 2016 SHER SHAH.....................................................................................................................APPELLANT , SURI SHAH...................................................................................................................APPELLANT & GAJENDAR SHAH...........................................................................................................APPELLANT v. STATE OF HARYANA .......................................................................................................................................... RESPONDENT [MEMORIAL ON BEHALF OF THE RESPONDENT] Roll no. - 007 MEMORIAL ON BEHALF OF THE RESPONDENT TABLE OF CONTENTS TABLE OF CONTENTS...............................................................................................................................1 TABLE OF CASES............................................................................................................................III LIST OF ABBREVIATIONS...........................................................................................................VII STATEMENT OF JURISDICTION...............................................................................................VII STATEMENT OF FACTS...........................................................................................................VII ISSUE RAISED..................................................................................................................................IX SUMMARY OF ARGUMENTS........................................................................................................IX WRITTEN PLEADINGS....................................................................................................................1 ISSUE [1]. WHETHER APPELANTS CAN BE CHARGED UNDER SECTION 302 r/w SECTION 34 OF IPC? .......................................................................................................................7 ISSUE 2: WHETHER THE ACT OF DECEASED AMOUNT TO GRAVE AND SUDDEN PROVOCATION? PRAYER............................................................................................................................................16 S TATEMENT OF JURISDICTION The Appellants have approached the Hon’ble High Court under S.374(2) of the Code of Criminal Procedure, 1973, which reads as follows: S.374. Appeals from conviction 1. Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. 2. 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. 3. Save otherwise provided in sub-section (2), any person, a. 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 b. sentenced under section 325, or c. in respect of whom an order has been made or a sentence has been passed under section 300 by any Magistrate, may appeal to the court.’ The respondents humbly submit to the jurisdiction of this Hon’ble Court. 5 S TATEMENT OF FACTS For the sake of convenience of the Hon’ble Court, the facts of the present case are summarised as follows: 1. Karim worked as a system operator at a computer Center at Jajhhar District, Haryana and lived in the town. His village was at a distance of 12 kilometres from his workplace which you ordinarily visited on Saturdays and Sundays. 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, Suri Shah, also lived in the same household. He was used to drinking and gambling and owed a debt of 2000 to Karim.₹2000 to Karim. 3. Whenever Karim demanded his money, Suri Shah showed his helplessness but never denied paying off his debt. 4. Karim was in love with Naina and used to meet her on the weekend 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 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 PM. 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 Gajendra Shah went there to investigate. 7. They saw Karim talking with Naina. Suri Shah lost his temper started abusing Karim. Gajendra Shah brought a lathi from inside and gave a blow to Karim on the leg. Then Suri Shah grabbed the lathi from Gajendra Shah and started beating Karim mercilessly giving blows on his head and chest. 8. On hearing the hue and cry, other villages 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 villages where he died three days later without regaining consciousness. 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 of nature to cause death. 6 10. FIR was registered against Suri Shah, Gajendar Shah and Sher Shah under Section 307 read with S. 34 of the Indian Penal Code. Three days later when Karim died, it was changed to Section 302 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 the existence 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. 14. On hearing the hue and cry, other villages 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 villages where he died three days later without regaining consciousness. 15. 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 of nature to cause death. 16. FIR was registered against Suri Shah, Gajendar Shah and Sher Shah under Section 307 read with S. 34 of the Indian Penal Code. Three days later when Karim died, it was changed to Section 302 r/w 34 IPC. 17. 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. 18. The accused persons pleaded grave and sudden provocation in their defence. They also pleaded that the prosecution had failed to prove the existence of common intention., they cannot be convicted under Section 302 r/w 34 IPC. 19. 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. 7 provision of Section 34, the essence of the liability is to be found in the existence of a common intention emanating from the accused leading to the commission of a criminal act in furtherance of such intention. . 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. Thus, it is humbly submitted before the Hon’ble court that, from all the facts presented, the respondent has proved the existence of common intention on the part of all the three accused, to commit the alleged crime. 10 11 MEMORIAL ON BEHALF OF THE RESPONDENT WRITTEN PLEADINGS ISSUE [1]. WHETHER APPELANTS CAN BE CHARGED UNDER SECTION 302 r/w SECTION 34 OF IPC? It is humbly contended before this Hon’ble High Court that the conviction of the men of Shah family based on Section 302 read with Section 34 of IPC be upheld as Section 302 read with Section 34, IPC envisages commission of murder by two or more people in furtherance of a common intention; and the appellants are guilty of the same. 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.48 1.1 -SECTION 34 ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF COMMON INTENTION - contemplates the doing of an act by several persons in furtherance of common intention. The constructive liability under this section arises only if the three conditions are fulfilled: 1. Criminal act is done by several persons; 2. Such act is done in furtherance of the common intention of all; and 3. Each of such persons is liable for that act in the same manner as if it were done by him alone. To invoke the aid of s.34 successfully, it shall be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of 12 all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.1 The first two ingredients of the acts are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. 1.1.1 CRIMINAL ACT It shall be observed that section 34 when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of the action of several persons.2 The Accused 1 Sher Shah was abusing the victim all the while, his son Gajendar Shah brought a stick, assaulted Karim and Suri Shah beat the victim to unconsciousness; the result of which was death of Karim. Thus, the criminal act was that of Murder. 1.1.2 PARTICIPATION IN FURTHERANCE OF COMMON INTENTION.— 'Common intention'.—The phrase 'common intention' means a pre-arranged plan and acting in pursuance to the plan. Though to bring this section into effect a pre-concert not necessarily be proved, and it may well be develop on the spot as between a number of persons and be inferred from facts and circumstances of each case.3 It was held in a case that it is not necessary to assign a specific role to each individual appellant as and when it is undoubtedly with a clear intent that something is done.4 From the facts of the case it can be deduced that Suri Shah called Karim in the evening on the pretext of repaying his debt, but took advantage of the situation and murdered him mercilessly. Gajendar Singh brought a stick and and hit Karim, but Suri Shah took it from him and started giving him severe blows on his head and chest till he lay unconscious. It was only after the interference of the villagers that he stopped. Meanwhile the father-son duo stood abusing Karim. The death of Karim was result of such development of intent. The acts of all the accused need not be the same or identically similar. All that is necessary is that they all must be actuated by the one and the same common intention. The fact that two of them caused injuries at the back of their victim and the injury at the head 1 Mehbub Shah v King-Emperor AIR 1945 PC 148. 15 It is humbly contended that the Hon’ble Sessions Court correctly held the Accused as guilty of murder of 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. 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. 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. 1.2.1. ACTUS-REUS Actus-reus is any wrongful act. Thus, in a case of murder, actus-reus would be the physical conduct of the accused that causes death of the victim. 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 16 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.10 It is the humble contention of the Respondent that the physical act of murdering Karim by beating him to death, is apparent. Has been established by well linked chain of factual evidence. In the instant case, it is contended that the actus-reus had been established by way of  Suri Shah’s act of beating the victim black and blue mercilessly until he died.  Clause 1.— 'Act by which the death is caused is done with the intention of causing death'.— The word 'act' includes omission as well (section 33). Any omission by which death is caused will be punishable as if the death is caused directly by an act. 11Thus, where a person neglected to provide his child with proper sustenance although repeatedly warned of the consequences and the child died, it was held to be murder.12 Intention to cause death may be revealed by the whole circumstances of the story  Sher Shah’s standing there, even if no participation by way of assault was done, shall be punishable. 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.13 It is the humble contention of the Respondent that the physical act of murdering Karim by beating him to death, is apparent. Has been established by well linked chain of factual evidence. C. MENS-REA 10 Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144 11 Arjun v State of Rajasthan, (1995) 1 Cr LJ 410 12 Gunga Singh, (1873) 5 NWP 44. Raju Das v State of Rajasthan, 1995 Cr LJ 25 . 13 Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144 17 Mens-rea is considered as guilty intention14, which is proved or inferred from the acts of the accused.15 [A] It is submitted that the intention to kill had been established [B]. in light of the obvious motive of the accused I. INTENTION It is presumed that every sane person intends the result that his action normally produces and if a person hits another 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.16 I. INTENTION Moreover, the intention to kill is not required in every case, mere knowledge that natural and probable consequences of an act would be death will suffice for a conviction under s. 302 of IPC.17 The intention to kill can be inferred from the murder and nature of the injuries caused to the victim.18 Here the injuries caused to Kareem were grave, and could be easily deduced that were caused to take life of the victim. 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 of evidence. II. MOTIVE Sec 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.19 The Supreme Court has held that mens rea is an essential ingredient of a criminal offence.20 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.21 14 Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4. 15 State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722. 16 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC). 17 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC). 18 Laxman v. State of Maharashtra, AIR 1974 SC 1803 19 State v. Dinakar Bandu (1969) 72 Bom LR 905. 20 Nathulal AIR 1966 SC 43 21 Shamdasini P D AIR 1929 Bom 443 20 was doing the same, mercilessly assaulting Kareem, both Sher Shah and Gajender Shah stood there, abusing the victim, waiting for him to die from his injuries.  The provocation wasn’t sudden as Suri Shah was already expecting Kareem to come over by the evening, and shouldn’t have been provoked to beat him to death seeing him outside their house. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. In order to find out whether the last act of provocation on which the offender caused the death was sufficiently grave to deprive the accused of the power of self-control, the previous acts of provocation caused by the person can always be taken into consideration.24  Kareem and Naina used to meet every now and then, so them holding a conversation outside the Appellant’s house was certainly not something new. It could have enraged the Appellant, i.e., the father to some extent, but not provoked him to an extent to let him being mercilessly bantered and left to die at the hands of his brother. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.25  Karim was invited by Suri Shah, thus making it evident that the act was pre- mediated, and not a result of any certain provocation  In the particular case, as has been mentioned in the facts, quite contrary to one blow, there was continuous beating which the victim was subjected to. He died of the cumulative effect of all the injuries. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. 26 The test to be applied is that of the effect of the provocation on a reasonable man, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. It is important to consider whether a sufficient interval has lapsed since the provocation to allow a reasonable person time to cool, and account must be taken of the instrument with which the homicide had been effected. 24 Dhandayuthan v State of TN, 1994 Cr LJ 1587 (Mad) 25 KM Nanavati v State of Maharashtra. 26 Budhi Singh v State of HP, 2013 Cr LJ 962 (SC) 21 22 PRAYER In the light of the facts stated, issues raised, arguments advanced & authorities cited the counsel on behalf of the Respondent humbly prays before the Hon’ble High Court of Punjab and Haryana to kindly adjudge and declare, 1. That the Accused persons are rightly convicted by the Sessions Court under Sec. 34 and Sec. 302 of the Indian Penal Code, 1860. 2. The act of deceased didn’t amount to grave and sudden provocation. 3. That the present appeal should be dismissed. Or to pass any appropriate relief that the Hon’ble Court may deem fit and is in the best interest of Justice, Equity and Good Conscience, And for this act of kindness, the counsel on behalf of the Respondent, as duty bound shall forever pray. ALL OF WHICH IS RESPECTFULLY SUBMITTED _______________________________ SD/- COUNSELS FOR THE RESPONDENT