[MEMORIAL ON BEHALF OF THE RESPONDENT ON BEHALF OF THE RESPONDENT] MOOT COURT, 2020Be, Summaries of Performing arts

Download [MEMORIAL ON BEHALF OF THE RESPONDENT ON BEHALF OF THE RESPONDENT] MOOT COURT, 2020Be and more Summaries Performing arts in PDF only on Docsity! 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 3. SURI SHAH ….APPELLANTS VERSUS KARIM …RESPONDENT WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 1 TABLE OF CONTENTS LIST OF ABBREVIATIONS…………………….……………...…..……………………..….3 INDEX OF AUTHORITIES……………………………………………………………..........4 TABLE OF CASES BOOKS REFERRED STATUTES REFERRED DIGESTS REFERRED WEBSITES REFERRED STATEMENT OF JURISDICTION……….…………………………...….…………….......6 STATEMENT OF FACTS……………………………………………..….……………….....7 STATEMENT OF ISSUES…….……………………………………..…………………….....9 SUMMARY OF ARGUMENTS………………………..….…………………………..…....10 ARGUMENTS ADVANCED………………………………..…….………………….………12 PRAYER……………………………………………………………………………………….20 WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 2  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 Delhi) (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 WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 5 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. STATEMENT OF FACTS 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. WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 6 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 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 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 WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 7 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 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 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. 6Section 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. WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 10 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. ARGUMENTS ADVANCED 8 Factsheet ¶ 9. 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 WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 11 [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 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; 13 Supra Note 6 14 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 17 Ibid WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 12 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 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 25 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 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. WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 15 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 consciousness. 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 result was sufficient in the ordinary course of nature to cause death. This proves that accused persons have committed the offence of the Murder. 28Supra note 13. WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 16 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 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 29 Supra Note 5 30 Supra Note 8, p-84 31 Factsheet ¶ 7& 8. 32 Girija Shankar v. State of U.P. (2004)3SCC793. WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT 17