moot memorial respondent side on murder, Cheat Sheet of Mock Trial and Moot Court

Download moot memorial respondent side on murder and more Cheat Sheet Mock Trial and Moot Court in PDF only on Docsity! Memorial submitted by Counsel on behalf of Appellants Page 1 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.3 V. The U.T. of Jammu and Kashmir Respondent Memorial Submitted By Counsel on behalf of The Appellants Memorial submitted by Counsel on behalf of Appellants Page 2 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………………………………………………………………………………………..8 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 a person? ......................................................................................................................... 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 in connection with the act committed by them? ................................................................. PRAYER ................................................................................................................................. 16 Memorial submitted by Counsel on behalf of Appellants Page 5 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 Magistrate of 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 to the Court of Session. The Appellants humbly submit to the jurisdiction of the Hon’ble Court. Memorial submitted by Counsel on behalf of Appellants Page 6 DOGRA LAW COLLEGE INTRA COLLEGE MOOT COURT 2022 STATEMENT OF FACTS Sukhdev (Appellant No. 1), an elderly farmer lived in Bharatpur with his family consisting of his wife (Rajni), son Milkha (Appellant No. 2) and daughter Babita. Sukhdev’s brother Baldev (Appellant No.3) also lived with them. Randhir, a boy who lived in the same village was in love with Babita. Sukhdev did not like Babita,s closeness to Randhir and had publicly warned both Randhir and Babita to stay away from each other. On several occasions he publicly scolded Babita and asked her to refrain from meeting Randhir. Baldev had borrowed INR 50,000/- from Randhir and though he had promised to pay him immediately, he kept asking Randhir for time to repay the INR 50,000/-. On 15th January,2022, Baldev invited Randhir to collect INR 50,000/-. Randhir reached Sukhdev’s house around 9:15pm, when the family had just finished their dinner, he saw Babita from the window and signaled her to come into the backyard. Sukhdev, Baldev and Milkha on hearing the whispers from the backyard went unarmed to investigate the matter. On seeing Randhir and Babita together Sukhdev lost his temper, asked Babita to return to the house and started abusing Randhir. Randhir replied back and there was a heated argument between them. During the course of the argument, Milkha went into the house and brought Sukhdev’s walking stick and gave blows on Randhir’s leg. Baldev grabbed the walking stick and started Randhir and gave blows on Randhir’s head and chest. Randhir was taken to the civil hospital by the villagers, where he died five days later. The Post mortem report confirmed that Randhir died due to injuries suffered by him on his head a d due to fracture of two ribs. However, none of the injuries independently were sufficient to cause Randhir’s death while they cumulatively were sufficient in the ordinary course of nature, to cause his death. The FIR was registered under Section 307 read with Section 34 of Indian Penal Code, 1860 and Memorial submitted by Counsel on behalf of Appellants Page 7 after the death of Randhir; the charges were altered to Section 302 read with Section 34 of Indian Penal 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 the IPC,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? Memorial submitted by Counsel on behalf of Appellants Page 10 incorporated in section 34 of IPC is called the principal of joint or constructive liability. Fundamentally in Mahbub Shah v. Emperor2 the court laid down the following principals:- 1. Essence of the liability under section 34 is found in common intention; 2. To invoke section 34 it must be shown that the act was done in furtherance of common intention; 3. Common intention implies pre arranged plan and it must be proved that criminal act was done in concert pursuant to the pre arranged plan; 4. For intention to be common it must be known to all the members and must also be shared by them. . B. Whether the nature of injuries and the nature of the weapon, was such as to cause death of 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 PC188 Memorial submitted by Counsel on behalf of Appellants Page 11 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) Memorial submitted by Counsel on behalf of Appellants Page 12 i) Thick lathi j) A broken soda bottle k) Tooth It is pragmatically doubtful to apprise that infliction using walking stick was imminently dangerous to cause immediate death. 4 As held in Sadakat kotwar and anr v. state of Jharkhand, Justice M.R. shah observed that intention has to be ascertained by the weapon used , part of the body chosen to assault and nature of the injuries caused. Provided that while determining clause (3) of section 300 of IPC, 1860, one question or query is precipitated, whether blow by walking stick which weights only 432 grams or 13.3oz with average diameter of 18mm which is invariably made of wood can cause such inflictions or bodily injury which perhaps is sufficient in the ordinary course of nature to cause death. In this case it is contended to be negative because there is very less probability perhaps it is very unforeseeable and very seldom that such blow with trivial wooden stick causes death, though it can cause grave injury when blows are inflected on upper anatomy of human body, i.e. – blow to vertebra, ribs, sternum also called the breast bone, skull etc. However moving to the clause (4) of the section 300 of IPC, 1860 which appraises with the knowledge that the act is so imminently dangerous that it must in all probabilities cause death. Thus, the question which accrues is that whether such blows with wooden walking stick were imminently dangerous? And secondly the use of a verb must connote beyond 100% probability of causing death Now withstanding, human brain and chest area is well protected from most damage, and both sit inside hard bony structure, layer of membranes and fluid provide extra padding. But even with all this natural production injuries still happen and the damage can affect anything but 4 Ratanlal and Dhirajlal, The Indian Penal Code (33rd Edition) Memorial submitted by Counsel on behalf of Appellants Page 15 As in Hansa singh v. state of Punjab,6 the accused saw the deceased committing sodomy on his son which enraged him and he killed the deceased and it was held that it amounted to grave and sudden provocation and the conviction under section 302 was set aside. As in India being a conservative, misogynist and old fashioned country. A country where women where women in rural India because of strict adherence to the patriarchy is not given the autonomy to choose her life partner. Therefore infuriation was caused because of illicit love affair of Babita and Randhir. 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 erroneously held that the accused was guilty of murder of Randhir under section 302, read with section 34, IPC which envisages commission by two or more persons in furtherance of a common intention. Section 300 whereof gives the definition of murder and enumerates the ingredients of the offence. Sessions Court has “erred” in comprehending the whole case as per the procedure established by law or as per the rules under substantive law. Sessions Court unjustifiably sentenced all 3 accused to life imprisonment without looking at factual and dejure substance of the case. Thus, it has caused great injustice and miscarriage of justice. 6 AIR 1977 SC 1801 Memorial submitted by Counsel on behalf of Appellants Page 16 PRAYER Therefore , in light of the issues raised, arguments advanced and authorities cited, may this Hon’ble court; 1) Declare and adjudge that all the three appellants are innocent and de facto have not caused murder of deceased. 2) To set aside the impugned judgment for conviction under section 302 read with section 34 of IPC, 1860, passed by learned Court of Session. And/or Pass any other order, as it deems fit, in light of Justice, equity and good conscience all of which 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 Memorial submitted by Counsel on behalf of Appellants Page 17