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DOGRA LAW COLLEGE INTRA
COLLEGE MOOT COURT
COMPETITION
BEFORE
THE HONOURABLE HIGH COURT OF JAMMU
AND KASHMIR BENCH AT JAMMU
The appeal filed under sec 302 read with section 34 of Indian Penal
Code, 1860
In the matter of
Sukhdev Appellant no. 1
Milkha Appellant no. 2
Baldev Appellant no.
V.
The U.T. of Jammu and Kashmir Respondent
Memorial Submitted By Counsel on behalf of The Appellants
TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................................................................... 2
TABLE OF AUTHORITIES ..................................................................................................... 3 - 4
CASES ...............................................................................................................................
CONSTITUTION AND STATUTES ........................................................................................
BOOKS & ONLINE REFERENCE..........................................................................................
WEBSITES .........................................................................................................................
STATEMENT OF JURISDICTION… ........................................................................................ 5
STATEMENT OF FACTS ....................................................................................................... 6
ISSUES RAISED .................................................................................................................. 7
SUMMARY OF ARGUMENTS………………………………………………………………………………………..
DETAILED ARGUMENTS.................................................................................................... 9 - 15
Whether the Appellants can be prosecuted under sec 302 read with section 34 of the IPC1860? ………………………………………………………………………………………........ Whether the nature of the injuries and the nature of the weapon were such as to cause death of aperson? ......................................................................................................................... Whether the act of the deceased amounted to grave and sudden provocation? ............ Whether the Sessions Court was justified in sentencing the Appellants with life imprisonment inconnection with the act committed by them? ................................................................. PRAYER ................................................................................................................................. 16
DOGRA LAW COLLEGE INTRA COLLEGE MOOT COURT 2022
CONSTITUION AND STATUTE
- The Constitution of India, 1949
- The Indian Penal Code, 1860
- Code of Criminal Procedure, 1973
- Indian Evidence Act, 1872 BOOKS AND ONLINE REFERENCE
- Batuk lal Evidence Law (22nd^ Edition)
- Modi’s Medical jurisprudence and Toxicology (27th^ Edition)
- PSA Pillai’s Criminal Law (14th^ Edition)
- Priksha Manthal Judicial Services (2nd^ Edition)
- Ratanlal and Dhirajlal, The Indian Penal Code (33rd^ Edition)
- Ratanlal and Dhirajlal, The Law of Evidence (26th^ Edition)
- Sarkar, Law of Evidence (17th^ Edition)
- Sarkar, The code of Criminal Procedure (17th^ Edition)
- S.N. Mishra, The code of Criminal Procedure (21st^ Edition)
- S.N.Mishra, Indian Penal Code (21st^ Edition) WEBSITES www.indiankanoon.co mwww.scconline.com www.judis.nic.in www.casemine.com
DOGRA LAW COLLEGE INTRA COLLEGE MOOT COURT 2022
STATEMENT OF JURISDICTION
The Appellants humbly approach the Hon’ble High Court under Section 374(2) of the Criminial Procedure, 1973, which reads as follows: 374 – Appeals from Conviction_ Any person convicted on a trial held by a High Court in its extra ordinary original criminal jurisdiction may appeal to the Supreme Court. Any person convicted on a trial held any a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court 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 Magistrateof the first class or of the second class, or sentenced under section 325, or In respect of whom an order has been passed under section 360 by any Magistrate, may appeal tothe Court of Session. The Appellants humbly submit to the jurisdiction of the Hon’ble Court.
after the death of Randhir; the charges were altered to Section 302 read with Section 34 of IndianPenal 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 Randhir. Aggrieved and dissatisfied by the judgment of conviction passed by the learned Trial Judge, the Appellants have preferred the present appeal. ISSUES RAISED A. Whether the Appellants can be prosecuted under Section 302 read with Section 34 of theIPC, B. Whether the nature of injuries and the nature of the weapon, was such as to cause deathof 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 ARGUMENTS
Whether the Appellants can be prosecuted under Section 302 read with Section 34 of the IPC, . It is humbly contended that the Hon’ble session court has implicitly errored in assessing the matter. The court has held the Appellants guilty of murder under section 302 of Indian Penal Code. Section 302 read with section 34, IPC envisages commission of murder by two or more people in furtherance of a common intention but there is no evidence to show sheer presence of common intention, prior meeting of mind and pre arranged plan. So the appellant cannot be prosecuted under section 300 read with section 34 of IPC. Whether the nature of injuries and the nature of the weapon, was such as to cause deathof a person. It is humbly submitted before the Hon’ble court that the nature of the injury and the nature of the weapon were not dangerous enough to cause death of the person as the blows with wooden walking stick were not imminently dangerous within the meaning definition of dangerous weapons under section 324 of IPC. Whether the act of the deceased amounted to grave and sudden provocation. It is most humbly contended before this Honb’le court that the act of the deceased amount to grave and sudden provocation as the appellant has refrained his daughter from meeting the deceased and the unwillingness of the deceased to relinquish love affair with his daughter caused serious and grave provocation which foreseeably have resulted in commission of serious offence. Whether the Sessions Court was justified in sentencing the Appellants with lifeimprisonment in connection with the act committed by them? It is humbly submitted that the Hon’ble session court has incorrectly held the appellant as guilty of murder under section 302 read with section 34 of I.P.C. hence the appellant has filed an appeal under section 374 (2) Cr.PC which envisages that any person convicted on a trail held by a 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 against him or any other person convicted at the same trial, may appeal to the high court.
incorporated in section 34 of IPC is called the principal of joint or constructive liability. Fundamentally in Mahbub Shah v_. Emperor_^2 the court laid down the following principals:-
- Essence of the liability under section 34 is found in common intention;
- To invoke section 34 it must be shown that the act was done in furtherance of commonintention;
- Common intention implies pre arranged plan and it must be proved that criminal act wasdone in concert pursuant to the pre arranged plan;
- For intention to be common it must be known to all the members and must also be sharedby them. . B. Whether the nature of injuries and the nature of the weapon, was such as to cause deathof a person It is humbly submitted before the Hon’ble court that the nature of the injury and the nature of the weapon were not enough to cause death of the person. In Roopa v. state of rajasthan, various abstracts from the book on medical jurisprudence the principles were summarized as follows;
- That the concept of an injury dangerous to life cannot in the very nature of the things be very precise. While there may be cases which can be easily placed either I the category of injury dangerous to life or in the category. There may be marginal and borderline cases where it may be very difficult to categorise the injuries as dangerous to life or not and in such cases medical experts may also differ.
- It is necessary that the medical witness should not remain content with making bald statement that the injury in a particular case is dangerous to human life. He should pen down all the relevant data namely, whether the injury caused “haemorrhage” or shock (^2) AIR 1946 PC
of implicated important structure or organs or was very extensive or otherwise caused imminent danger and should also state the various grounds in which he considers the injury to be dangerous. As there is nothing on record to exhibit that broken ribs caused brain haemorrhage ruptured arota or major blood vessel or punctured lung or lacerated spleen, liver or kidneys. Therefore, because of the presence of the perplexity or obscurity that what really caused the death of the deceased one cannot hold appellants guilty on basic autopsy report. Mortality in patients with ribs fracture is uncommon (7%) and mortality directly related to fracture is rare (0.5%). Older patients are four times more likely to die as a direct result of rib fracture and may require additional resources. As deceased being an adult young male presumably having more bone density. Therefore mortality due to rib fracture is much more improbable.^3 It is further contended that as far as the nature of the weapon is concerned it’s a wooden walking stick not more than 1 kg and cannot be read within the purview of “dangerous weapon”as promulgated in section 324 and 346 of IPC. As per section 324 following weapons have been held to be dangerous weapons within the meaning of this section a) Axe b) Cheviot or sharp weapon c) Knife d) Razor blade e) Revolver f) Hot ladle g) Arrow h) Cudgel or iron shod stick (^3) Modi’s Medical Jurisprudence and Toxicology (23rd (^) edition)
death is very seldom. Physiologically it is not eminently dangerous therefore it culminates to set aside theimpugned judgment declared by the learned trial court. Nonetheless non fulfillment of the conditions enumerated in clause (3) and (4) of section 300 yields to withholding of a judgment ofthe learned trial court. C. Whether the act of the deceased amounted to grave and sudden provocation. It is humbly submitted that, indeed it infuriated all the three appellants. Appellants being father brother and uncle of Babita with whom deceased allegedly came to meet. As earlier has been reprimanded by Appellant 1 regarding deceased’s approach towards his daughter. Rebuking so, deceased unhesitatingly retried to entrap Babita in illicit affair. Section 300 of IPC, 1860 provides for 4 exceptions where the culpable homicide will not amount to murder. These exceptions are:
- Where the act is done on grave and sudden provocation
- Where the act is done exercising the right of private defence of person or property.
- Where the act is done in exceeding the right by public servant or in aiding a publicservant
- Where the act is done in sudden fight without premeditation. Therefore defence under section 300 clause (1) is “implicitly” redeemable by appellants. In KM Nanavati v_. State of Maharashtra_ ,^5 Supreme Court gave the following test of grave and sudden provocation:-
- Whether a reasonable man, belonging to same class of society as that of accused andplaced in same situation would be provoked to lose his self control.
- Words and gestures may also, in certain circumstances, amount to grave and suddenprovocation. (^5) 1962 AIR 605, 1962 SCR
- Mental background created by previous acts of victim may be taken into consideration.
- Fatal blow should be traced to the influence of passion and not after passion has cooleddown. Nevertheless, clause (3) as above mentioned avers of mental background created by previous acts. Victim, however in this case particularly Para 1 perse mentioned that Sukhdev (Appellant no.1) did not like Babita’s closeness to Randhir and thereof publicly warned both of them to stayaway from each other and he publicly scolded Babita and asked her to refrain from meeting Randhir (deceased) with reference to previous demeanor of deceased it was clear that he will continue to meet Babita instead of all the warnings. Randhir’s unwillingness to relinquish love affair with appellant’s daughter caused serious and grave provocation which foreseeable would have resulted in commission of serious offence. But instance in our case vis quite divergent. Proceeding to clause (4) as above mentioned apprises “fatal blow or infliction should be traced tothe influence of passion and not after passion cooled down”. However in this case everything happened within moment. The act of inflicting blows on legs of deceased and chest was impetuous and therefore happened under influence of passion. Appellant 1 and 2 and 3are innocent enough to be given entitlement of defence available under clause 1 of section 300 or exception to section 30 0 of IPC, 1860. As far as evidentiary value of autopsy report is concerned, its and expert’s statement covered under section 45-51 of Indian Evidence Act, 1972. Therefore by corroborating circumstantial evidence with implicitly be deduced that cause of death of deceased was due to injuries sufferedby him on his head and due to fracture of ribs. Provided that infliction by walking stick were made by Baldev only as he inflicted them with Distinct Motive, not with common motive to cause bodily injury, likely to cause death. Culpability invokes against any Appellant 1 & 2 withdistinct motive of intimidating perhaps, needed to be absolved from the liability. Hence, “loosing control over mind” is very probable and natural. Therefore, it is asserted that the act of deceased was “grave” enough though not sudden and was peculiar enough to be covered under exception (1) of section 300 as mentioned above.
PRAYER
Therefore , in light of the issues raised, arguments advanced and authorities cited, may this Hon’ble court;
- Declare and adjudge that all the three appellants are innocent and de facto have notcaused murder of deceased.
- To set aside the impugned judgment for conviction under section 302 read with section 34 of IPC, 1860, passed by learned Courtof Session. And/or Pass any other order, as it deems fit, in light of Justice, equity and good conscience all ofwhich is most humbly and respectfully submitted. Place: High Court, Jammu. S/d: Dated- 01/04/2022 Adv Danish Anthal Adv Samreen Sheikh Adv Janvi Gupta
