Download moot memorial from respondent side on murder and more Cheat Sheet Mock Trial and Moot Court in PDF only on Docsity!
DOGRA LAW COLLEGE
INTRA COLLEGE MOOT COURT
COMPETITION
Before
THE HONOURABLE HIGH COURT OF
JAMMU AND KASHMIR BENCH AT JAMMU
The Appeal filed under section 302 read with section 34
of Indian Penal Code, 1860.
Criminal Appeal no. ______________________
In the matter of Sukhdev Appellant no. Milkha Appellant no. Baldev Appellant no. Vs The U.T. of Jammu and Respondent Kashmir
TABLE OF CONTENTS
**1. Table of contents…………………………………………………………………………….
- Table of authorities……………………………………………………………………….3- 4** CASES CONSTITUTION AND STATUTE BOOKS AND REFERENCES **WEBSITES
- Statement of jurisdiction………………………………………………………………..
- Statement of facts………………………………………………………………………….
- Statement of charges……………………………………………………………………..
- Issues raised…………………………………………………………………………………..
- Summary of arguments………………………………………………………………….
- Detailed arguments……………………………………………………………………….9- 17
- Prayer……………………………………………………………………………………………**
BOOKS AND REFERENCES
Modi’s Medical Jurisprudence and Toxicology (23rd^ edition)
Ratanlal and Dhirajlal, The Indian Penal Code, (
rd
edition)
Ratanlal and Dhirajlal, The Law Of Evidence (
th
edition)
Sarkar, Law of Evidence (17th^ Edition)
Sarkar, The Code of Criminal Procedure (11th^ edition)
S.N.Mishra, The Code of Criminal Procedure (
st
edition)
S.N. Mishra, Indian Penal Code (
st
edition)
Batuk lal, law of evidence (27th^ Edition)
WEBSITES
www.indiankanoon.com
www.scconline.com
www.casemine.com
STATEMENT OF JURISDICTION The Appellants Humbly approach the Hon’ble court under sec 374(4) of Code of Criminal Procedure, 1973, which reads as follows; Sec 374: Appeals and convictions :- 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 Session Judge or an Additional Session 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 High Court. The respondents humbly submit to the jurisdiction to this Hon’ble High Court.
STATEMENT OF CHARGES The FIR was registered under section 307 read with section 34 of Indian Penal Code, and after the death of Randhir, the charges were altered to section 302 read with section 34 of Indian Penal Code,1860. The session court convicted the three appellants i.e. Sukhdev, Baldev and Milkha under section 302 read with section 34 and sentenced them to life imprisonment for having committed the murder of Randhir. 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.
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 Session Court correctly held the Appellants as guilty of murder of Randhir 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. 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 weapon were indeed enough to cause death of a 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 session court correctly held that the Accused as guilty of murder of Randhir under section 302, read with section 34 of IPC. Section 302 read with section 34,IPC envisages commission of murder by two or more persons in furtherance of a common intention. Section 300 gives the definition of Murder and enumerates tye ingredients of the offence.
It is humbly contended that the Hon’ble Session Court correctly held that the Appellants as guilty of murder of Randhir under section 302 read with section 34 of IPC which envisages commission of murder by two or more people in furtherance of common intention. Section 300 gives definition of murder and enumerates ingredients of the offence. (1) Section 300 of IPC 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 to cause death of that person or causes such bodily injury, which in the ordinary course of nature results in the death or commits an act so dangerous that it must, in all probability cause death of that person. (2) Section 34 of IPC contemplates the doing of an act by several persons in furtherance of a 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 parties in furtherance of that common intention. (3) In Afrahin Sheikh v. State of West Bengal^3 , the supreme court held that the requirement of section 34 i.e. the existence of “common intention before the criminal act” is must. It is completely satisfied in our case, because the Appellant no. 3 has appeared simultaneously at the scene, abused proactively and then , mercilessly assaulted the victim, which establishes common intention. The totality of the result perpetrated by several offenders is attributed to each offender, notwithstanding that individually they may have done separate acts. (^3) 1964 AIR 1263, 1964 SCR (6) 172
In Jagir Singh v. State of Punjab,^4 the supreme court has succinctly observed that the principle embodied in section 34, IPC is participation in some action with the intention of committing a crime. Hence, Appellant no.1 as apparently seems to be non-involved by refraining himself from attacking but was ex facie substantively present on the actual spot of incident and prima facie he was the one to kindle the whole scuffle. Being the karta of the family, he should have prevented the whole incident from happening, but instead he turned to be most imprudent and being the main protagonist head instigated both Appellant no.2 and Appellant no.3 who according to his directions, assaulted deceased so mercilessly that it resulted to succumbing the injuries. In Mehbub shah v_. Emperor_ ,^5 the court held that the common intention implies a pre arranged plan, prior meeting of mind or prior consultation between all the persons constituting the group. Hence, there is non fulfillment of all the attributes is mentioned in our case. In Shree kantia v. State of Bombay, supreme court unequivocally held that physical presence and active participation in crime is necessary but in J.N. Desai v. State of Bombay , supreme court observed that the physical presence and active participation is not necessary. In Barendra kumar Ghose v. Emperor, the court held that even if a person who does not claim anything but if he has common intention he will be liable. The court asserted that “they also serve who stand and wait”.^6 Referring to Para 4 and Para 3 , “Sukhdev, Milkha and Baldev on hearing whispers from the backyard”. Para 2 and 3 “when the family just finished their dinner” and it is submitted that their “whispers” according to dictionary meaning “to speak very softly using one’s breath rather than one’s throat, especially for the sake of secrecy. (^4) AIR 43, 1967 SCR (3) 256 (^5) (1945) 47 BOMLR 941 (^6) (1925) 27 BOMLR 148
required just to prove that several persons did the criminal acts in questioned the accused has shared the common intention. In Nandu Rastogi v. State of Bihar^8 , the supreme court emphasized that it is not necessary that each one of the accused must assault a deceased to come within the ambit of section 34. As in this case Appellant no.1 can’t be seen participating in any overt act but it can’t be said he is not guilty. It is enough that they have shared a common intention to commit a crime by doing their diverse acts, but physical presence of all the crime is necessary. The establishment of an overt act is not a requirement of law to allow section 34 to operate. A criminal act done in furtherance of intention of all by an accused need not be overt, even a deliberate and conscience covert acts is enough to bring such a person within the ambit of section 34. Beaming to para 3, line 7, “Milkha went inside the house and brought Sukhdev’s walking stick” which unequivocally shows that Milkha having control over his mind, went inside house and picked stick. Therefore, there is enough evidence to show beyond reasonable doubt that they all are vicariously liable for overt acts being done by the appellant no. and no.3. Hence, corroborating thus circumstantial evidence with post mortem report substantiate death of the deceased was caused due to strategical blows inflicted by Appellant no.3 and due to covert acts perpetrated by Appellant no.1. 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 (^8) (2002) 8 SCC 9
joint and physically powerful assault by the aforementioned appellants, Deceased had injury on his legs, chest and head. (8) According to the post-mortem report, deceased succumbed due to cumulative injuries of broken ribs and had impact. It is humbly argued that cases where there is absence of direct evidence is not available then in such cases inferences shall be deduced from the circumstances, fact and in particular case of homicide inference can be drawn from the weapon used , spot of injury and nature of injury. Weapon used in this case though not seems to be dangerous one but dangerousness and potency of an instrument can be easily deduced from the circumstances. As in this case appellants were the one who were having weapons in their possession and on the other side deceased was barely armed. Therefore it can be ascertained that even such wooden walking stick can be dangerous enough or deadly enough to take someone’s life. 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 incensing 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, Atelectsis, and may progress pneumonia, respiratory failure, need for prolonged ventilation and possible death. (9) Head injury 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 nor necessarily. A penetrating head injury occurs when an object pierces the skull and breaches the dura mater. Brain injuries may be diffuse, occurring over a wide area, or focal, located in a small, specific area. A bead 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. If intracranial hemorrhage occurs, a bematoma within the skull can put pressure on the brain.
In Mannan Balaswamy v. State of Andhra Pradesh,^11 the accused had a quarrel with his father. The deceased tried to intervene and pacify. The accused then went into the house, brought out the knife and stabbed the deceased. The plea of grave and sudden provocation was rejected, holding that there was no provocation and the accused merely tried to use the quarrel as an excuse to kill the deceased. Hence, in our case, there was no provocation verbally on the part of the deceased. He only went there in order to elicit the money being offered by the Appellant no. 3. Nonetheless, there is nothing on record to show that he tried to abate Babita to elope as far as their love affair was concerned, it was consensual and Supreme Court has upheld its stance on relationship of young consenting adults. Since triology of all 3 appellants has taken undue advantage and they deliberately took the law into their hands and they shall be made liable for their gross wrong doing. In Bharu Ram v. State of Maharashtra, the accused accompanied with others, entered into the house of the deceased. Apprehending danger to his life, the deceased fired at one of the companions of the accused and thereby caused his death. The accused then hit the deceased with an axe on his head and killed him. During trail, he pleaded that the death of his companion caused grave and sudden provocation to him. The supreme court refused to accept the plea as the accused solicited the provocation. A killing under the provocation sought by the accused cannot be covered by the exception. Hence, in our case the appellants were the first one to solicit provocation. At the outset the Appellant no.1 started abusing the deceased and consequently deceased replied to explain his head. Due the heat of the moment, heated arguments were started which as a result yielded to one side attempts to commit injury, thereof likely to cause death. It is further contended that in Francis alias Ponnan v. State of Kerala,^12 it was pointed out that even in cases where the court may not accept the plea of “sudden and grave (^11) AIR 1980 SC 448, (1980) 1 SCC 680, 1980 ( (^12) 1974 AIR 2281, 1975 SCR (1) 485
provocation”, the background of the facts of earlier incidents which may cause grave pprovocation and are not sudden, maybe considered by the courts as factors that mitigate the sentence. 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 Randhir under Section 302 read with Section 34 of IPC. Section 302 read with Section 34, IC envisages commission of murder by two or more people in furtherance of common intention. Section 300 of IPC gives the definition of murder and enumerates the ingredients of the offence. Section 302 in The Indian Penal Code, 1860 reads:
302. Punishment for murder : - Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. (12) Section 34 in The Indian Penal Code. 1860 reads: 34. 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. (13) The Sessions Court, after considering the evidence on record adduced by the prosecution, was pleased to convict Sukhdev- Appellant No. I, Milkha - Appellant No. 2 & Baldev Appellant No. 3 for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 and sentenced them to suffer imprisonment for life and by its Judgment, the said substantive sentences were directed to run concurrently. In state of west bengal v. Orilal jaiswal it was held that, exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defense. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting the guilty escape is not justice, according to law.
