Memorial on criminal case, Exercises of Law

Download Memorial on criminal case and more Exercises Law in PDF only on Docsity! P a g e | 0 BEFORE THE HON’BLE SUPREME COURT OF INDIA (CRIMINAL APPELLATE JURISDICTION) S.L.P. (Crl.) NO. ……………… OF 2020 PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA Rtd. Lieut. COLONEL .....…… [APPELLANT] VERSUS STATE OF PUNJAB …...… [RESPONDENT] MOST RESPECTFULLY SUBMITTED TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANIONS AND HIS LORDSHIP’S COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 1 TABLE OF CONTENTS  LIST OF ABBREVIATIONS ……………………………………………………2  LIST OF AUTHORITIES………………………………………………………...3  STATEMENT OF JURISDICTION……………………………………………...5  STATEMENT OF FACTS………………………………………………………..6  STATEMENTS OF ISSUES RAISED…………………………………………....8  SUMMARY OF PLEADINGS…………………………………………………....9  PLEADINGS SUBMITTED……………………………………………………...12 i. WHETHER SLP IS MAINTAINABLE…………………………………..12 ii. WHETHER OFFENCE IS COMMITTED IN GRAVE AND SUDDEN PROVOCATION. …………………………………………………….…..15 iii. WHETHER SHORT TEMPER PERSONALITY OF OFFENDER IS PROOF OF LOWER DEGREE OF CRIMINALITY. ……………………………..17 iv. WHETHER DECISION OF SESSION COURT AS WELL AS HIGH COURT IS ERRONEOUS. ………………………………………..………19 v. WHETHER ACCUSED DESERVE SUSPENSION OF SENTENCE AND REDUCTION OF SENTENCE UPTO ALREADY UNDER GONE AND SET TO BE FREE. ………………………………………………………..22  PRAYER…………………………………………………………………………...24 MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 4 24. Bhola v. State, 1974 Cri.L.J. 1318 (All.) 25. Kashmira singh v. State of Punjab, (1997)4 SCC 291 B. STATUTES/BARE ACTS REFERRED-  The Constitution of India,1950  The Indian Penal Code,1860  The Code of Criminal Procedure,1973  The Indian Evidence Act,1872  The Arms Act, 1959 C. JOURN A LS REFERRED-  All India Reporter  Criminal Law Journal  Supreme Court Cases  Supreme Court Reporter D. BOOKS REFERRED-  Constitutional Law of India ,Dr. Narender Kumar-9th Edition ,2016  Ratanlal and Dhiraj lal’s The Code of Criminal Procedure-22nd Edition 2017  The Code of Criminal Procedure,1973, S.N. Mishra-20th Edition, 2016  Indian Penal Code ,Prof. S.N. . Mishra-20th Edition, 2016 E. INTERNET SOURCES REFERRED-  www.scconline.com  www.livelaw.in  www.indiankanoon.org  www.manupatra.com  www.leaglindia.com MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 5 STATEMENT OF JURISDICTION The Appellant has approached the Honourable SC of India through SLP under Article 136 of the Constitution of India. The matter has been listed for hearing. Article 136 of the Constitution of India read here as under: Special leave to appeal by the SC: (1) Notwithstanding anything in this Chapter, the SC may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, & sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. The Memorandum for Respondent in the matters of State of Punjab V. Rtd. Lieut. Colonel set forth the Facts, Contentions and Arguments present in the case. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 6 STATEMENT OF FACTS For the sake of brevity and convenience of this Hon’ble Court the facts of the present case are summarized as follows: 1. The appellant herein was a retired Lieutenant Colonel in the Indian Army. After his retirement in April 2011, he was permitted to live in the staff quarters in the defence compound for a period of three months. 2. Who live in hutments across the road, particularly boys aged about 10-15 years, who cross the compound wall to pick almonds and mangoes. 3. At about 1.30 p.m. on 03.07.2011, the deceased, Dilshan, and three of his friends, Sanjay (PW-2), Praveen (PW-3) and Vignesh (PW-7), ventured into the army men's enclave to pluck almonds and mangoes. 4. While they were flinging stones at their targets, they suddenly heard a massive sound, following which Dilshan, the deceased, fell down on the ground. PW-2, PW-3 and PW-7 ran away from the scene. 5. It is further the case of the prosecution that it was the appellant herein who had shot the deceased with a pistol, consequent to which the deceased sustained bullet injuries on his person and died. The distance between the appellant and the deceased was about 100 meters. 6. It is clear from the evidence that it was usual for the boys residing in the adjoining colony to enter the prohibited defense area to pluck fruits. It is also not in dispute that the appellant was residing in accommodation provided by the Army for a period of three months after his retirement. 7. It is also clear that the appellant shot the deceased while he was attempting to pluck fruit from the defense enclave. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 9 SUMMARY OF PLEADINGS I. WHETHER THE SLP IS MAINTAINABLE. The SC will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. It is pertinent to note that the power is permitted to be invoked not in routine fashion but in very exceptional circumstances as when a question of law of general importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. On the question of sentence there is a reluctance to interfere with the quantum of punishment awarded as the imposition of punishment is always a matter of discretion. Interference can be sought only if the discretion has been exercised capriciously or without taking relevant factors into account. It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle. II. WHETHER OFFENCE IS COMMITTED IN SUDDEN AND GRAVE PROVOCATION. Appellant didn’t commit the offence in sudden and grave provocation. The word 'sudden' involves; the provocation must be unexpected. In the present case, it is clear from the evidence that it was usual for the boys residing in the adjoining colony to enter the prohibited defense area to pluck fruits .Thus provocation was not sudden and unexpected. The Court has to apply an objective test for deciding whether the provocation was grave or not. A good test for deciding whether a certain provocation was grave or not is this: "Is a reasonable man likely to lose self-control as a result of such provocation?'. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 10 In the present case we can gather from the circumstances that both ill will and premeditation was present. III. WHETHER SHORT TEMPER PERSONALITY OF OFFENDER IS PROOF OF LOWER DEGREES OF CRIMINALITY. The settled position of law is that the exception takes into consideration situations wherein a person with normal behaviour reacting to the given incidents of provocation. Further, an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not led ordinary person to act as he did. If the benefit of short temperament is given to the accused then such would result in misuse of the exception. The other reason for not taking into consideration the bad temperament of accused would defeat the Reasonable Test set out in the exception of the Provocation. IV. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION. The Trial Court had considered all the relevant and important facts of the case and the factors which enter into scene while determining a just and adequate sentence. HC having note of this, did not commit any error while affirming the judgment of conviction and sentence as all the facts were well proved and it found no need to interfere in the orders of the Trial Court. Further, this Court observed that it is now well-settled that imposition of sentence is in realm of discretion of the court and unless the sentence is found to be grossly inadequate, the appellate court would not be justified in interfering with the discretionary order of sentence. The HC visited the matter before it from every aspect and applied its properly to full capacity, the decision of the HC cannot be said to be erroneous. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 11 V. WHETHER ACCUSSED DESERVE SUSPENSION OF SENTENCE AND REDUCTION OF SENTENCE UPTO ALREADY UNDERGONE AND SET TO BE FREE. It is clear from the various decisions of this Court as stated above that, cases where a serious offence had been committed and the accused had been held guilty for the said offence, then his application should not be decided leniently during the pendency of the appeal. The seriousness and gravity of the offence must be looked into. In cases involving conviction under serious offences such as u/s302 IPC, normal practice is not to suspend the sentence, and it is only in exceptional cases that the benefit of suspension of sentence can be granted. It is to be noted that since the offence of the appellant-accused has been proved in the Trial Court and he is thereby convicted for the same and was awarded the sentence of imprisonment of life, and the HC also have confirmed the order of conviction and sentencing, there remains no solid reasons to set aside the orders of the below courts and as such appellant-accused is not entitled for suspension of sentence and shall undergo the sentence awarded by the Trial Court and subsequently affirmed by the HC in appeal. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 14 Court was there ideally as a supervisor. The intervention of the Supreme Courtwas deemed to be only that as to correct the High Courts in exceptional matters7. 1.8An authoritative pronouncement of the Supreme Court in the case of State of Maharashtra v. Mayer Hans George8 is that "It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle." In the present case, the appellant has filed SLP challenging the sentence awarded to him but Trial Court having given due and deep consideration to all the facts of the case, especially the nature of the offence, its gravity and possible consequences which could have arisen thereof, and also having followed due procedure established by law, while making well principled and justified exercise of its Judicial discretion, have awarded the most appropriate and adequate sentence. Such a cautious, justified and reasonable of judicial discretion cannot be said to be illegal only for the reason that the accused feels the sentence awarded to him as excessive and is unhappy with it. 1.9 In George G. Feller v. The King9, Sir George Rankin pointed out that for them to interfere with a criminal sentence there must be something so irregular or so outrageous as to shock the very basis of justice and that misdirection as such, even irregularity as such will not suffice and that there must be something which in the particular case deprives the accused of the substance of fair trial and the protection of the law. 1.10 In Riel v. The Queen10, Lord Halsbury, while delivering the judgment of their Lordships of the Privy Council, pointed out that leave to appeal in criminal cases could only 7Narpat Singh v. Jaipur Development Authority, (2002) 3 SCR 365. 8AIR 1965 SC 722; 1965 1 SCR 123 9AIR 1943 PC 211 10(1885)10 AC 675. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 15 be given where some clear departure from the requirements of justice is alleged to have taken place. 1.11 It is further very significant to note that Art. 136 like Art. 226 is a discretionary remedy and the Court is not bound to interfere even if there is error of law or error of fact in the impugned order11. 1.12 In another observation this Court restricted the scope of SLPs to cases where there was a violation of the principles of Natural Justice, causing substantial and grave injustice to parties12. 1.13 Moreover, In Municipal Board, Pratapgarh v. Mahendra Singh Chawla13And in Chandra Singh v. State of Rajasthan14, it was observed that the SC was not bound to set aside an order even if it was not in conformity with law, since the power under Article136 was discretionary. 1.14 Finally, it is submitted that there arise no exceptional and rare circumstances in thecae and for there has been, as such, no case of miscarriage of justice, the impugned order does not call for any interference. Hence, SLP by appellant is liable to be dismissed. II. WHETHER OFFENCE IS COMMITTED IN SUDDEN AND GRAVE PROVOCATION. It is humbly submitted as follows – 2.1 That, Appellant didn’t commit the offence in sudden and grave provocation. 11Mathai Joby George, (2004) 4 SCC 358 12Bengal Chemicals Ltd. v. Their Workmen, AIR 1959 SC 633 13(1982) 3 SCC 331 14AIR 2003 SC 2889 MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 16 In Mahmood v. State 15Allahabad High Court observed: “In order to bring case under Exception 1 to Section 300 I. P. C., an accused has to establish the following ingredients : (i) The provocation was sudden; (ii) the provocation was grave; and (iii) loss of self-control These three ingredients may be considered one by one. (i): Whether the provocation was sudden or not does not present much difficulty. The word 'sudden' involves; the provocation must be unexpected. In the present case, it is clear from the evidence that it was usual for the boys residing in the adjoining colony to enter the prohibited defense area to pluck fruits .thus provocation was not sudden and unexpected as the appellant was already aware of the usual visits .Further as brought out in the evidence of PW5 Jaya, a domestic help working at the appellant house that he used to chase the boys who used to jump into the defense compound to pick almonds (ii) 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 a certain 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 the affirmative, the provocation will be classed as grave. If the answer is in the negative, the provocation is not grave. 15 AIR 1960 ALL 538 MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 19 with normal behaviour reacting to the given incidence of provocation and therefore, the protection of the said exception is extended to a normal person acting normally in a given situation. 3.4 No reliance can be placed on the evidence of PW5, because bad character of accused is irrelevant under section 54 of The Indian Evidence Act. IV. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION. It is humbly submitted as follows: 4.1 That, the HC had not made an erroneous decision by affirming the orders of the Trial Court since it has been attempted above to prove that Trial Court had delivered a very appropriate and just judgment while awarding desired and adequate sentence. However, it is further elaborately submitted as follows. 4.2 The most important facts of the case which needs another mention are: i. The appellant-accused shot the victim-Dilshan in his head which is the most vital part of human body. ii. .A shot in a vital part of body-injuries could have been fatal. iii. Injuries were serious as the victim was in critical state owing to which he died. iv. The appellant-accused is guilty of attempting to murder the victim-Dilshan by his own act. v. The appellant-accused is also guilty of offence u/s 302, 201 r/w 302,IPC and u/s 3 r/ w sec25(1B)(a), 27, 25(1-B)(h) of Arms Act . vi. The offence committed on his part was sufficient in ordinary course for causing death of the above named injured person. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 20 What is to be noted here is that all the above relevant and important facts which make the primary determinants and considerations to decide a just and adequate sentence, having been considered by the Trial Court, the appellant-accused was very adequately and in a just manner, sentenced to Life Imprisonment and fine of 50,000, as has been attempted to prove above. As these factors were considered while imposing the sentence, there remains little scope to interfere in quantum of punishment and such is the case here. HC having note of this, was justified in not interfering in the judgment of the Trial Court and as such, all justified in affirming the order of the Trial Court. 4.3 To further support this submission an important observation of this Court in “Ram Sanjiwn Singh v. State of Bihar"i19 needs mention whereby the Court observed that it is now well-settled that imposition of sentence is in realm of discretion of the court and unless the sentence is found to be grossly inadequate, the appellate court would not be justified in interfering with the discretionary order of sentence. The effect of this observation in light of the above submission makes it clear that HC had not made an erroneous decision since it found the sentence awarded by Trial Court as adequate and just. 4.4 Further it is pertinent to note that HC would be in error in disturbing the judgment of the Trial Court when the view taken by the trial court is reasonably possible20 but in the instant case, HC having agreed with the view taken by Trial Court, ultimately declaring Trial Court's decision as reasonably possible, thereby affirming it without any interference, HC cannot be said to be in error. 4.5 Moreover, even if, for once, it is accepted that initially Trial Court was however in error for awarding imprisonment for life to the appellant-accused, HC even then cannot be said to be in error for HC is very much qualified and aware about its duties to do complete justice in 19 AIR 1996 SC 3265 20 Dinanath Singh v. State of Bihar, AIR 1980 SC 1199. MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 21 appeals, since it is meant to be the highest appellate authority, and is also well aware about its procedure for an important judgment of this Court has observed that when the High Court hears the appeal on its merits it does not apply its mind only to the question whether the conviction should be confirmed but also applies its mind to the adequacy of the sentence passed upon the accused by the lower Court. In thus applying its mind to the question of sentence it also considers whether the sentence passed upon the accused by the lower Court is adequate in the sense that it is either such as should be reduced or is such as should be enhanced,"21 Thus, where in lieu of this observation, in relation to the present case, an indisputable and undoubtedly strong assumption arises as to that the HC visited the matter before it from every aspect and applied its properly to full capacity, the decision of the HC cannot be said to be erroneous. 4.6 It is once again pertinent to note that the legislature has made provision for life imprisonment as maximum punishment for the offence of attempt to murder u/s 307 IPC which indicates that there must be some very extraordinary and rare reasons for awarding punishment of imprisonment for life u/s 307 IPC. Since, HC was satisfied with the findings of the Trial Court in the light of facts found proved, HC had made a valid decision and as such did not commit any error. 21 U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 24 guidelines and principles and the quantum of punishment granted thereby to be just and adequate; c) The order of the Hon'ble High Court affirming the order of the Trial Court be also upheld as completely valid; d) The prayer of the appellant for Bail be dismissed; and e) The appellant's sentence of Imprisonment for Life be upheld to be valid as adequate by upholding his conviction. And any other relief that the Hon'ble Court may be pleased to grant in the interests of Justice, Equity and Good conscience. For this act of kindness, the appellant shall be duty bound forever pray. Sd/- (Counsels for the Respondent) MEMORIAL ON BEHALF OF THE RESPONDENT P a g e | 25 MEMORIAL ON BEHALF OF THE RESPONDENT i