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SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

Team Code: 1

SURANA & SURANA NATIONAL TRIAL ADVOCACY

MOOT COURT COMPETITION 2018

IN THE HON’BLE COURT OF SESSIONS JUDGE, PUNNAI

C.C. NO. 100 of 2018

STATE OF SARDAM

(PROSECUTION)

V.

DEVEN & JEYANT

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTIONS 307, 325, 354(D), 355, 504, 509 & 358

OF THE BARAT PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE SESSION JUDGE

MEMORIAL ON BEHALF OF THE PROSECUTION

Table of Contents

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

& And

A.P. Andhra Pradesh

AIR All India Report

Anr. Another

Bom CR Bombay Criminal Reporter

BPC Barat Penal Code

Cr.P.C. Code of Criminal Procedure

Cri LJ / Cr. LJ Criminal Law Journal

Del Delhi

Hon’ble Honorable

IPC Indian Penal Code

M.P. Madhya Pradesh

No. Number

Ori. Odisha

Ors. Others

r/w Read with

Retd. Retired

S./Sec. Section

SC Supreme Court

SCC Supreme Court Cases

St. State

U.P. Uttar Pradesh

u/s Under Section

v. Versus

IN

DEX OF AUTHORITIES

TABLE OF CASES:

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

1. Abhiram Mukhi v. St. of Orissa, 1996 Cri LJ 2341

2. Aman Kumar v State of Haryana, AIR 2004 SC 1497

3. Aniyan Kunju & Ors v. St. of Kerela, 2008

4. Anuradha R Kshirsagar v. St. of Maharashtra, 1991 Cri LJ 411

5. Apparel Export Promotion Council v A.K. Chopra AIR 1999 SC 625

6. Arjun Thakur v. State of Orissa, 1994 Cr LJ 3526 (Ori)

7. Bellana Kannam Naidu v. St. of AP, 1994 Cr. Lj 1146 (AP)

8. Bhaskar Pandit Kadam v. St. of Maharashtra, (1984) (2) Bom CR 769

9. Chimbanbhai Jagabhai Patel v State of Gujarat, AIR 2009 SC 3223

10. Deputy Inspector General of Police v. S Samuthiram, (2013) 1 SCC 598

11. Hari lal & Anr. v. St. of UP, 1970 SCR (2) 237

12. Inder Mohan Goswamy v. State of Uttaranchal and Ors, 2007 (4) JCC 2843

13. Jagga Singh v. St. of Punjab, (2001) 3 SCC 137

14. Jage Ram v. St. Of Haryana, (2015) 11 SCC 366

15. Jodh Singh v. State of UP 1991 Cr LJ 3226 (All)

16. Jodha v. St. of Rajasthan, (1994) SCC Online Raj 161

17. Keshab Padhan v. St. of Orisaa, 1976 Cutt. LR (Cri) 236

18. Kuldip Singh v. St. (1988) 3 Crimes 628 (1) Del (SN)

19. Liyakat Mian v. State of Bihar, AIR 1973 SC 807

20. Lugga Singh v State of Punjab, (2008) Cr LJ 90 (P&H)

21. Manik Bandu Gawali v State of Mharashtra, 1998 Cr LJ 2246 (Bom)

22. Namdeo Dnyanaba Agarkar v. State of Maharashtra, 2013 Cr Lj 3946 (BOM)

23. Narayana v. State of Karnartaka, 1998 Cr LJ 1549 (Kant)

28. Phiaz Muhammad v. Inayat Hussain

31. Shaikh Krimulla v. St. of AP, AIR 2009 SC 1711: 2009 11 SCC 37IT
32. State v. Ashok Kumar

• SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION,
• List of Abbreviations
• Index of Authorities 5-
  •  Table of Contents 5-
  •  Books
  •  Websites
  •  Statutes
• Statement of Jurisdiction
• Statement of Facts
• Statement of Charges
• Summary of Arguments 11-
• Arguments Advanced 13-
• Issue-I: Whether Deven is guilty under Section 354D and 509 of Barat Penal Code? 13-
• Issue-II: Whether Deven is guilty under Section 307 BPC for attempting murder? 17-
• Issue-III: Whether Jeyant is an offender under Section 325 of BPC 20-
• Issue-IV: Whether Jeyant is guilty under Section 355 and 504 of BPC? 24-
• Issue V: Whether the mob that attacked Deven is an offender under Sec 358 of BPC? 26-
• Prayer
• List of Annexures 29-
  •  Annexure 1 30-
  •  Annexure 2 33-
  •  Annexure 3 45-
• SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION,
  •  Annexure 4 48-
  •  Annexure 5 51-
• List of Exhibits 59-
  •  Exhibit-A
  •  Exhibit-B
  •  Exhibit-C
  •  Exhibit-D
  •  Exhibit-E 64-
  •  Exhibit-F
  •  Exhibit-H 71-
  •  Exhibit-G 87-
• SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION,
  • 24. Niranjan Singh v. St. of MP,CR Appeal No. 868 of
  • 25. Om Prakash v. State of Punjab, AIR 1961 SC
  • 26. Prabhu Dayal v. St. of MP, (2016) SCC Online MP
  • 27. Pran Dutt v. UP, (1983) 1Crimes
  • 29. Raghunath alias Ram Singh, (1940) 16 Luck
  • 30. Sarju Prasad v. State of Bihar, AIR (1965) SC
  • 33. Skipper Beverage Pvt. Ltd. v. State, 92 (2001) DLT 32. Shailesh v. St. of Maharashtra, 1995 Cr. LJ 914 BOM
  • 36. State v. Chottu @ Javed Khan, Case no. 341/2A/04 of 35. State v. Ashok Singh,
  • 37. State v. Santosh Kumar Singh, (2010) 9 SCC
  • 38. State of Punjab v. Major Singh, AIR 1967 SC
  • 39. State of Madhya Pradesh v. Kedar Yadav, 2001 (1) SCC (Cri)
  • 40. State of UP v. Indirajeet Alias Sukhata, (2000) 7 SCC
  • 41. Sukharam v. St. of MP, AIR 1989 SC
  • 42. Sukra v. St. of Orissa, (1958) Cut
  • 43. T. Munirathnam Reddi, 1995 Cr LJ
  • 44. Tarkeshwar Sahu v. St. of Bihar, 2006 (8) SCC
  • 45. Vidyadharan v. State of Kerala, (2004) 1 SCC
  • 46. Vishaka & Ors. v. State of Rajasthan & Ors, AIR 1997 SC

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

BOOKS:

1. Ratanlal and Dhirajlal, The Indian Penal Code , 33rd^ Ed. (2011)

2. P.S.A. Pillai (13th^ Ed. 2017)

3. Gaur, KD, Criminal Law: Cases and Materials, (6th^ Ed. 2009)

4. Gupta and Dighe, Criminal Manual, (7th^ Ed. 2007)

5. Kelkar, R.V. Criminal Procedure , (5th^ Ed. 2011)

WEBSITES:

1. http://www.scconline.com

2. http://www.manupatrafast.com

3. http://www.findlaw.com

4. http://www.judis.nic.in

5. http://www.indiankanoon.com

STATUTES:

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)

ST

ATEMENT OF JURISDICTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

The Hon’ble Court has the jurisdiction to try the instant matter under Sec. 177 r/w Sec. 209 of

the Code of Criminal Procedure, 1973^1.

Section 177:

‘177.Ordinary place of inquiry and trial-

Every offence shall ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.’

r/w Section 209:

‘209.Commitment of case to Court of Session when offence is triable exclusively by it -

When, in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by

the Court of Session, he shall-

(a) Commit the case to the Court of Session;

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during,

and until the conclusion of, the trial;

(c) Send to that Court the record of the case and the documents and articles, if any, which are to

be produced in evidence;

(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.’

The Counsels for the Prosecution most respectfully submit to this jurisdiction of the

Hon’ble Sessions Court.

Statement of Jurisdiction

(^1) The Code of Criminal Procedure, No. 2 of 1974

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

1. On the 12th of June 2017 at around 10:00 am. Deven and Pooja were going to meet each

other at the Indira Nagar metro station. Kavita and Jeyant were accompanying Pooja.

2. Everyone panicked when Deven while talking to Pooja took out a knife. After seeing the

knife Jeyant alerted the public and threw stones at Deven. Deven took Pooja as a human

shield and asked everybody to back off. On seeing the crowd approaching towards him, he

used the knife he was wielding on Pooja injuring her and she fell unconscious.

3. Deven was overpowered by the crowd and Jeyant started beating him. The ambulance came

with police and they both were taken to the hospital in the critical state and were admitted to

ICU.

4. Deven and Pooja moved to Punnai after completing their graduation. Pooja got campus

placement and Deven got a job with a private builder. Pooja was staying with Kavita in a flat

near Indira Nagar metro and Deven was staying as a paying guest with Kishore.

5. Pooja started distancing herself from Deven after moving to Punnai and Deven was not

taking it well. On 9th^ June they met at the Taj restaurant and Pooja informed him of her plan

to become an air hostess. Deven abused her and told her that she is losing her character,

reacting to the insult, Pooja slapped Deven after

6. Deven then got drunk with Karan, whom he met on his way to home and after getting

intoxicated he again called Pooja late at the night asking her to meet for one last time and he

wants to apologize for what he had done. They met at Indira Nagar metro station where the

incident took place.

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

Statement of Charges

Charge-

Deven – has been charged under The Barat Penal Code, 1860 - Section 307 for attempt to

murder, Section 354D for stalking and Section 509 for Word, gesture or act intended to insult the

modesty of a woman.

Charge-

Jeyant – has been charged under The Barat Penal Code, 1860 - Section 325 for voluntarily

causing grievous hurt, Section 355 for Assault or criminal force with intent to dishonor person,

otherwise than on grave provocation & Section 504 for Intentional insult with intent to provoke

breach of peace.

Charge-

The unknown persons who attacked Deven were also charged under Section 358 of The Barat

Penal Code, 1860.

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

Summary of Arguments 11-

ISSUE 1: Whether Deven is guilty of outraging the modesty and stalking Pooja under

section 509 and 354D of BPC respectively?

It is submitted before the Hon’ble court that the accused, Mr. Deven, had committed the offense

of Stalking and outraging the modesty of the victim and is guilty for the same. The accused had

an intention to outrage the modesty of woman and he did so, by abusing her and calling her

characterless. Similarly, he also committed the offense of stalking even after sensing the victim’s

disinterest in him. He tried contacting her from unknown numbers and waited for her outside her

workplace. The essential ingredients of both the sections of BPC are fulfilled.

ISSUE II: Whether Deven is guilty under section 307 BPC for attempting murder of

Pooja?

It is submitted before the Hon’ble court that the accused, Mr. Deven had committed the offense

of attempting to murder the victim. He slashed the victim’s neck with a sharp-edged knife,

already proves actus rea. The mens rea can be seen by the type of weapon and wound along with

part of the body attacked. The essential ingredients of Section 307 are therefore fulfilled.

ISSUE III Whether Jeyant is an offender under section 325 of BPC?

It is submitted before the Hon’ble court that Accused no. 2, Mr Jeyant is guilty of causing

grievous hurt voluntarily to Accused no 2 with the intention to vent out his personal enmity. He

threw stones on him, that hit him on his head and thereafter rained fresh blows on him. The act

of Jeyant was without any provocation which proves that the essential ingredients of Section 325

of BPC are fulfilled.

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

ISSUE 4: Whether Jeyant is liable under section 355 and 504 of BPC?

It is submitted before the Hon’ble court that the accused, Mr. Jeyant had committed the offense

under section 355 and 504 of BPC by using criminal force with the intent to dishonour a person

without being provoked and insults someone intentionally with the motive of breaching the

peace. The act of attacking Accused no. 1 proves the presence of criminal force and the personal

hatred for the accused proves the intent to dishonor. Also, the intentional insult was caused by

the conduct of attacking Deven (accused). Ergo, the essential ingredients of both the sections are

fulfilled.

ISSUE 5: Whether the mob that attacked Deven should be charged under Section 358 of

BPC?

It is submitted before the Hon’ble court that the law recognises moral policing wrong. Since in

the present case, the mobs attacked Accused no. 1, leaving him bruised and unconscious, they

are to be charged under this section. The act involved an assault and that assault was a result of

provocation. Ergo, both the ingredients of the section are fulfilled.

A

RGUMENTS ADVANCED

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

ISSUE 1: Whether Deven is guilty of outraging the modesty and stalking Pooja under

Section 509 and 354D?

1.1: It is humbly submitted before this Hon’ble Court that the acts committed by Deven

(hereinafter referred to as Accused No. 1) in pursuance of his feelings for Pooja had clearly

outraged her modesty as per the provisions of Section 509 of the Barat Penal Code, 1860

(hereinafter referred as ‘BPC’).

It will be believed that a person outraged a woman’s modesty if he assaults or uses criminal force

against any woman, even after knowing that such act will outrage her modesty^2. It is to be noted

that the essential ingredients of Section 509 are as follows –

● Intention to insult the modesty of a woman

● The insult must be caused by uttering some word, or making some sound, or gesture, or

exhibiting any object so as to be heard or seen by such a woman.

A. The intention to insult the modesty of Pooja: The test of outrage of modesty is whether a

reasonable man will think that the act of the offender was intended to or was known to be likely

to outrage the modesty of a woman.^3 Ergo, even mere knowledge that a woman’s modesty will

be outraged will prove a person guilty san any deliberate intention.^4 The existence of such

knowledge can be determined from various incidents in which and upon whom the offense is

committed.^5 The Supreme Court, in a case, observed that the offence under this section is

concerned with the intention to outrage the modesty of women. It held, “The culpable intention

of the accused is the crux of the matter. The reaction of the woman is very relevant, but its

(^2) Subs by Criminal law (Amendment) Act 2013 (13 of 2013) (^3) Keshab Padhan v. State of Orissa, 1976 Cutt. LR (Cri) 236 (^4) Aman Kumar v State of Haryana, AIR 2004 SC 1497 (^5) Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr Lj 3946 (BOM); Vidyadharan v State of Kerala, AIR 2004 SC 536 : (2004) 1 SCC 215; State of Punjab v Major Singh, AIR 1967 SC 63

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

absence is not always decisive. Modesty is an attribute associated with female human beings as a

class.”^6

On 9th^ June 2017, Pooja (hereinafter referred to as the Victim) decided to meet Deven for making

clear her intentions of severing all ties with him. She pulled off a casual black dress. Initially, the

accused complemented her saying that she looked “smart”. However, when the victim revealed

her future plans of being an air hostess, he tried to dissuade her. On failing to do so, he abused

her and told her that her dressing sense and behavior shows that she has lost her character.

Complimenting a woman for her clothes initially and thereafter abusing and passing derogatory

comments on her for the same shows that intention to insult her was present. And intention to

insult the modesty of a woman is an important ingredient of the offence under this section.^7 The

accused, in a case, was convicted for words uttered by him which were outrageous and attacked

the woman’s decency^8.

B. The insult must be caused by uttering some word: Any sort of assault on a woman’s

modesty, be it by words, deed, touch or look needs stricture. The court, in a case, made the

respondent liable under Sec. 509 for calling the petitioner a characterless lady.^9 It was held that

abusive language in reference to women would constitute an offence.^10 The counsel would

request the bench to refer to Annexure 2(9) wherein the waiter witnessed harsh words hurdled

upon the victim and her character to outrage her modesty. The court observed that the offense

relating to modesty under the section cannot be treated as trivial. Mere idea about the fact that

the action would outrage the modesty is sufficient to constitute an offense here. It may be

(^6) Tarkeshwar Sahu v. State of Bihar, 2006 (8) SCC 560 (^7) Phiaz Mahamad (1903) 5 BOM LR 502 (^8) State v. Chottu@ Javed Khan Case no 321/2a/04 of 2013, Delhi District Court (^9) Skipper Beverage Pvt. Ltd. V. State, 92 (2001) DLT 2017; Inder Mohan Goswamy v. state of Uttaranchal and others, 2007 (4) JCC 2843 (^10) Anuradha R Kshirsagar v State of Maharashtra 1991 CR LJ 411

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

without any deliberate intention.^11 Therefore, it can be concluded that Deven has committed an

offence under Sec. 509 IPC.

1.2: The counsel also submits before the court that accused no. 1 is an offender under Section

354D of IPC for stalking the victim and trying to foster an interaction with her even after sensing

her non-willingness for the same. The definition of the offence of stalking notes the following

ingredients-

● A man following a woman and contacts or attempts to contact such woman

● fosters personal interaction repeatedly despite a clear indication of disinterest by such a

woman.

Furthermore, the counsel would like to mention that the victim was being increasingly troubled

by the behaviour of Accused No. 1 who was repeatedly calling and texting her. Because of this,

the victim even changed her number and used the old number only to contact her parents

(Annexure 2(5)). It was clear that the victim, not only wanted to conceal this from her family

but also sever all ties with the accused as soon as possible. Even after sensing that the victim was

not interested in keeping any contact with him, the accused repeatedly kept calling her from

different numbers. Calling from different numbers shows that he knew he was being ignored.

The accused also stood outside her office and waited for her to show up despite a clear indication

of disinterest by her. The counsel would like to lay emphasis on the fact that by not attending any

calls and not replying to the texts, the victim clearly indicated her dis-interest in accused. Ergo, it

is proved that there were continuous attempts to foster personal interaction by the stalker and

lack of interest from the woman’s side.

(^11) Vishaka & Ors. v State of Rajasthan & Ors, AIR 1997 SC 3011; Apparel Export Promotion Council v A.K. Chopra AIR 1999 SC 625

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

It was held that seldom a woman files complaint and often the wrongdoers are left unpunished

even if the complaint is filed since there is no effective mechanism to monitor and follow up

such acts.^12 The horrifying aftermaths of stalking are not hidden from anyone. A law student of

Delhi University filed a case against her stalker one year before she was raped and murdered by

him.^13 The case clearly indicates that stalking is a step before sexual harassment. The court also

held the accused guilty for the offence of stalking and outraging the modesty of a married

woman which led to the failure of her marriage.^14 In one such case, a 12-year-old girl was being

stalked by the rickshaw puller on her way to school and back home. The accused rickshaw

puller, who not only stalked her but also abused her, was held guilty in court under Section

354D.^15

With reference to the instant case, it is requested that the bench refers to Annexure 2(5) which

would prove that in spite of severing all the ties and asking Deven to refrain from pestering her

by calling and texting, the victim received calls and texts from him which were tormenting. The

witness’ statement clearly mentions that Pooja wanted to be left alone but he would not give up

contacting her. Further, Deven’s desperation also led him to irritate the victim’s flat mate Divya

by texting and calling her continuously (Exhibit H). It is therefore established that the accused

was an insane stalker akin to roadside Romeo who would percolate along some incredible scales

to foster personal interaction with the victim and intrude in her personal space.

ISSUE 2: Whether Deven is guilty of attempt to murder under Section 307 of BPC?

(^12) Deputy Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 (^13) State v. Santosh Kumar Singh, (2010) 9 SCC 747 (^14) State v. Ashok Singh, https://indiankanoon.org/doc/60489353/ (^15) State v. Ashok Kumar, https://indiankanoon.org/doc/32288367/

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

It is humbly submitted before this court that Deven is guilty of an unlawful offence under

Section 307 of BPC. Any act or omission will be taken into this section if the offender, while

committing such act thought that it would lead to death.^16 It is to be noted that the essential

elements of Sec. 307 are as follows:

 the act must be capable of causing death^17 ,

 the existence of the intention of the offender to cause death^18

If the accused intended that the natural consequence of his act should result in death but he was

frustrated only by the extraneous circumstances, he would be guilty of attempt to commit the

offence of murder.^19 The ingredients of Sec 300 when fulfilled, brings the case into the ambit of

Sec 307.^20

For a conviction under this section it is not necessary that the accused should complete every

stage in the actual offence, except the final action. It is enough if in the attempt he did an act

towards the commission of the offence.^21 The Supreme Court reiterated its earlier view and held

that the offence under 307, IPC is committed, when with the intention to commit murder, the

offender does any act or series of acts towards the commission of murder. It is not necessary that

the act done must be last for committing murder.^22

(^16) Lugga Singh v State of Punjab, (2008) Cr LJ 90 (P&H) (^17) State of Maharastra v. Kashirao, (2003) 10 SCC 434 (^18) Jage Ram v. State of Haryana, (2015) 11 SCC 366 (^19) T. Munirathnam Reddi, 1995 Cr LJ 917 (^20) Arjun Thakur v. State of Orissa, 1994 Cr LJ 3526 (Ori) (^21) Raghunath alias Ram Singh, (1940) 16 Luck 194 (^22) Om Prakash v. State of Punjab, AIR 1961 SC 1782

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

(i) The act is capable of causing death: It is humbly submitted that the element of Actus Reus

was present in the act of the accused. The court, in a case, ruled that in order for an offence to

fall under the ambit of section 307, the injury has to be caused on a vital part of the body.^23

In the present case the injury was caused on the neck of the victim, and the Bombay High

Court observed that “Neck has always been regarded as a vital part of the body and if a sharp

instrument like knife or dagger is aimed at a neck and the injury is caused cutting off veins

and arteries in the process, then the offence must fall under Sec. 302 of Indian Penal Code.”^24

Where the accused shot a person from very close range, had the accused caused death, he

would have certainly been guilty of murder.^25 Where accused stabbed the stomach near the

naval region with a big knife blade, the court rightly rules that it is a case of attempt to

murder and not grievous hurt.^26 The Orissa High Court has ruled that injuries which are

caused with the intention of causing death but are not grave enough to cause death do not

come under this (307) section.^27 The act done with the intention to cause death is sufficient in

ordinary course of nature to cause death or such injury which would cause death.^28 In the

present case, the injury of Pooja is grave enough as she is in ICU under critical state (Exhibit

E) (Exhibit F) ( Annexure 2(11)). This proves that the act committed by the accused was

capable of causing the death of Pooja.

(ii) Intention to murder: The essential ingredient to constitute an offence under this section is

having the intention or knowledge. The intention or knowledge can be understood as

explained under Section 300 of the Code^29. Law gives a lot of importance on proving the

(^23) Jodha v. State of Rajasthan 1994 SCC online Raj 161 (^24) Bhaskar Pandit Kadam v. State of Maharastra, 1984 (2) BomCR 769. (^25) Liyakat Mian v. State of Bihar, AIR 1973 SC 807 (^26) Kiran Kumar vs St. of Gujarat 1985 CrL(NOC) 22 (Guj) (^27) Sukra v State of Orissa (1958) Cut 700 (^28) Chimbanbhai Jagabhai Patel v State of Gujarat, AIR 2009 SC 3223 (^29) Sarju Prasad v. State of Bihar, AIR (1965) SC 843

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

intent of the accused; there have been some tests to determine the murderous intent of the

accused^30. The intent coupled with act in executing that intention would suffice.^31 The court

said, “as far as the part of proving his intention the nature of the wound, type of weapon

used, part of the body attacked can be taken into account.”^32 The Hon’ble High Court of

Bombay observed that an attempt to murder itself is enough to prove intention.^33 Referring to

our case, the counsel humbly submits that all the aforementioned conditions are satisfied as:

 Nature of the Wound: The Wound caused by the accused was deep enough to cause

death, as it resulted in causing a grave injury to the victim and she was admitted to ICU.

 Type of Weapon Used: The Hon’ble High Court of Karnataka has observed that the use

of lethal weapon itself brings in provision of section 307.^34 The Weapon used was a

sharp-edged knife which, if used in any vital part of the body, will lead to causing of

death.

 Part of the Body Attacked: The accused have slashed the victim on her neck with a sharp

knife which is considered to be a vital part of the body.

In case of Kuldip Singh v. State^35 , the accused tried to hit the victim with a naked sword but

somehow the victim got saved and the blow only caused simple injury, but the court

convicted the accused under section 307 IPC because of the dangerous weapon used, which

gave away the intention of the accused, which was to murder the victim. “ So basically, if the

intention or necessary knowledge to cause death as envisaged by section 300 IPC which

(^30) R. v. Cassidy, (1867) 4 BHC (Cr C) 17 (^31) State of MP v. Kedar Yadav, 2001 (1) SCC (Cri) 1008 (^32) Pran Dutt v. UP and Hari Kishan v. Sukhbir Singh (1983) 1 Crimes 286 (^33) Manik Bandu Gawali v State of Mharashtra, 1998 Cr LJ 2246 (Bom) (^34) Narayana v. State of Karnartaka, 1998 Cr LJ 1549 (Kant) (^35) (1988) 3 Crimes 628(1) Del (SN)

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

defines murder is there, then it is immaterial to whether or not any hurt was caused to the

victim by the accused^36 ”.

After meeting Pooja and fuming with anger, Deven came back home. While reacting to the

song that was playing in the television, he says to his friend that girls who play with feelings

of boys should be treated awfully (Annexure 2(8)). Right after this feeling of revenge came

into his mind, he called her, around 11.45 pm and apologized to her on his behaviour and

said he wanted to meet her and ask her pardon in person. At this point in time, it can be

concluded that he wanted to take revenge on Pooja. Asking her for pardon in person was an

excuse to meet her and fulfil his evil intentions. It is clear that Deven intended to murder

Pooja. And thus, the element of mens rea was present. Therefore, it is established that he is

guilty of attempting murder.

ISSUE-3: Whether Jeyant Is an offender under Section 325 of BPC?

The counsel humbly submits that Jeyant (A2) is guilty of causing grievous hurt to Deven in order

to give a free rein to his enmity, thereby being an offender under Section 325 of BPC. The

essential ingredients of the section are as follows:

 Voluntarily causing grievous hurt

 Such grievous hurt being caused without any provocation

A. Voluntarily causing grievous hurt: There is no such thing as a regular weapon for

committing murder or for that matter a hurt. Whether a particular article can per se cause any

serious wound or grievous hurt or injury has to be determined factually.^37 In a case, the

(^36) Ratanlal and Dheerajlal, The India Penal Code (32nd (^) ed, Lexis Nexis Butterworths, 2010) 1753- (^37) St. of UP v. Indirajeet Alias Sukhatha 2000 (7) SCC 249

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

appellants were held guilty under the section for causing a grievous hurt by shooting the victim

in the leg.^38

Throwing of Stones:

Jeyant warned the victim that people like Deven cannot be trusted and advised her to stay away

from him, proves the existence of his personal hatred for Deven. (Annexure 2(2)). Accused no.

2 had feelings for the victim and was jealous of Deven. (Annexure 2(13)). He was looking for

an opportunity to vent out his enmity towards him. And also, he got that opportunity, when he

saw Deven taking out the knife and the apple from his bag. He threw a stone towards Deven and

planned to use the act of Deven as an excuse for his offence of grievous hurt. The counsel

submits that there was no reaction of fear on Pooja’s face (Annexure 2(6)) when Deven took out

the knife, and Jeyant saw that. Even after that, he threw a stone at him which caused grievous

hurt. (Exhibit A)

Raining fresh blows: The counsel would also like to assert the fact that Deven was hapless and

was harmless after being dealt by the public for his atrocious act of attempt to murder

(Annexure 2(6)). However, as soon as Jeyant draws close to Deven, he takes the doom of the

accused as an opportunity to vent out his enmity towards him and rains on him a fresh set of

blows. Jeyant left no chance wasted and kicked Deven on his abdomen that left him unconscious.

(Exhibit E) Therefore, it is evident that he used the opportunity to let out his hatred towards him

because had it been for the concern of his friend, he would have first taken her to the hospital

immediately and not wasted the time beating up someone.

(^38) Jagga Singh v. St. of Punjab (2001) 3 SCC 137 : AIR 2011 SC 960

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In a case of a friendly cricket match, a player blew a stump against another player which led to

another player’s death; the intention to cause death could not be proved thereby leading the court

to believe that Section 325 should be applied.^39 In one such case, it was held that the intention of

the son was to cause a grievous hurt to his father by the act of hitting him with the stick on the

head. The fact that such action would lead to the death of his father was not thought of, therefore

the son was held guilty under section 325 for causing grievous hurt intentionally.^40

After considering the evidence of the witness, an appropriate conviction would be in terms of

Section 325 of BPC^41. Supreme Court also held that incised wound to the bone is considered to

be a fracture and hence grievous hurt^42. In Niranjan Singh v. State of Madhya Pradesh^43 , the

court held that the terms “dangerous to life” and “endangers life” are different and it is important

to prove that during that time, the victim was unable to follow his ordinary pursuits. The court, in

the present case relied upon a source to decipher that grievous hurt, was the motive. It was also

observed that the medical report is a factor which has to be weighed along with other materials to

see whether the prosecution version is reliable and cogent.^44 The counsel would humbly request

the court to refer to the medical report of Accused no. 1 that proves that the intention of Accused

no. 2 was solely to cause grievous hurt ( Exhibit E) (Annexure 2(10)).

B. Such grievous hurt being caused without any provocation:

(^39) Shailesh v. State of Maharashtra 1995 Cr LJ 914 BOM (^40) Bellana Kannam Naidu v. State of AP 1994 Cr LJ 1146 (AP) (^41) Shaikh Karimullah v. State of AP AIR 2009 SC 1711 (^42) Hori Lal and Anr v. State of UP 1969 (^43) Cr Appeal No. 868 of 2002 (^44) Aniyan Kunju and others v. State of Kerala 2004

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018

In the case of Sukharam Vs. State of Madhya Pradesh^45 , the Supreme Court said: For conviction

u/s 325 BPC, the High Court imposes seven years' rigorous imprisonment. The imposition of

sentence is always a matter of discretion of the Court. In imposing the sentence, Judge must

consider a variety of factors and circumstances and overall view of the situation and impose an

appropriate sentence. The measure of punishment in a given case must depend upon nature of the

offence, the conduct of the accused and unprotected state of the victim. The Supreme Court will

not interfere with the sentence unless this Court finds that the discretion has been exercised

arbitrarily or capriciously or on unsound principles or that the lower court or the High Court has

not considered any relevant factor in imposing the sentence.

Accused no. 2 was interested in the victim but that was not the case from her side. He had also

warned her regarding her friendship with accused no. 1 and had kept an eye on her movements.

He provided the victim with an alternative mobile number to use so that she could ignore the

calls and texts from accused no. 1 (Annexure 2(13)). All these incidents prove that accused no. 2

has always been interested in the victim and jealous of Accused no. 1 of the friendship he shared

with her. Ergo, it is proved that the fresh set of blows that were rained on accused no. 1 was an

attempt to vent out the hatred towards him by accused no. 1, and he should be held guilty under

Section 325 of BPC. The act of throwing stones too was sought as an opportunity for the same.

Ergo it is established that he is guilty under section 325 and 355 of BPC.

ISSUE 4: WHETHER JEYANT IS GUILTY UNDER 355 and 504 of BPC?

45 AIR 1989 SC 772

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It is humbly submitted before this Hon’ble Court that Jeyant is guilty of the offence under Sec.

355 BPC. It is to be noted that the essential elements of Sec. 355 are as follows:

 There must be an assault or criminal force.

 There must be an intention to dishonour person.

(i) Presence of Criminal Force:

Sec. 350 of BPC makes every act, an offence of criminal force, by which a person intentionally

uses force to any person, without his consent, in order to commit any offence, or intending by the

use of such force to cause injury to the person to whom the force is used, is said to use criminal

force to that other.

The illustration (e) to Sec. 350^46 mentions that if ‘A’ throws a stone, and if the throwing of the

stone produces the effect of causing any substance to come into contact with ‘Z’. ‘A’ has used

force to ‘Z’; and if he did so without Z’s consent, intending thereby to injure, frighten or annoy

‘Z’, he has used criminal force to ‘Z’.

Relating this illustration with our case, Jeyant threw stones at Deven which injured Deven’s

head, it can be concluded that there was a criminal force applied by Jeyant.

In State v. Chottu @ Javed Khan^47 , the accused punched the victim on her stomach, thus causing

grievous hurt. The court observed that the victim is liable under section 350 IPC for using

criminal force without her consent.

Relating this with our case, Jeyant hit Deven in his abdomen multiple times which caused Deven

to fall unconscious. Therefore, it can be concluded that Jeyant, by throwing stones at Deven and

(^46) Barat Penal Code, 1860 (45 of 1860), Bare Act, Universal Law Publication (^47) Case no. 341/2A/04 of 2013, Delhi District Court

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by hitting him, intending to hurt him, has committed an offence of criminal force punishable

under Sec. 350 IPC. Thus, the first condition for an act to be a crime u/s 355 IPC is satisfied.

(ii) Intention to Dishonour Deven:

It is humbly submitted before this Hon’ble court that Jeyant intended to dishonour Deven by

hitting him in front of the public. The accused liable under Sec. 355 BPC as the act or omission

of the petitioner beating by the shoes in presence of a large number of persons (Barati)

dishonoured the victim.^48

In order to prove the intention of Jeyant for dishonouring Deven, the counsel would like to bring

to the notice of this Hon’ble Court that as Jeyant was interested in Pooja, but Pooja was in a

relationship with Deven, which made Jeyant jealous of him. This feeling of jealousy

overpowered Jeyant when he saw Deven bringing a knife close to Pooja’s face, and he threw a

stone at Deven. Later, when Deven slashed Pooja’s throat, Jeyant, with the help of other persons

overpowered Deven; he takes the doom of the accused as an opportunity to vent out his enmity

towards him and rained on him a fresh set of blows. Accused no. 2 left no chance wasted and hit

Deven that left him unconscious. Therefore, it is evident that he used the opportunity to let out

his personal hatred towards Deven. Therefore, it can be concluded that Jeyant had an evil

intention to dishonour Deven by beating him in public.

Section 504 of BPC states that:

 There must be an intentional insult.

 Insult must be offered by words or conduct

(^48) Prabhu Dayal v. State Of Madhya Pradesh 2016 SCC OnLine MP 8503