MOOT PROBLEM - 1
IN THE HIGH COURT OF PUNJAB AND HARYANA CRIMINAL ORIGINAL JURISDICTION __________________________________________________________________________
APPEAL NO._/2016
IN THE MATTER OF SHERSHAH, GAJENDER, SURI SHAH
…PETITIONER /APPELLANT
VERSUS
STATE OF PUNJAB AND HARYANA
...RESPONDENT
ON SUBMISSION TO THE HON’BLE HIGH COURT OF PUNJAB AND HARYANA (WRITTEN SUBMISSION ON THE BEHALF OF APPELLANT) (SHWETA DHAKA :A11911114180,SAMEEKSHA GUPTA A11911114178,AYUSHI YADAV :A11911114168, SHIKHAR MEHRA :A11911114189,PRIYA SIROHI A11911114102)
INDEX
S.NO
PARTICULAR
(1)
MEMO OF THE PARTIES
(2)
LIST OF REFERENCES
(3)
STATEMENT OF JURISDICTION
(4)
SUMMARY OF FACTS
(5)
STATEMENT OF ISSUES
(6)
SUMMARY OF PLEADINGS
(7)
PRAYER
PAGE
MEMO OF PARTIES IN THE HIGH COURT OF PUNJAB AND HARYANA CRIMINAL ORIGINAL JURISDICTION __________________________________________________________________________
APPEAL NO._/2016
IN THE MATTER OF SHERSHAH, GAJENDER, SURI SHAH
…PETITIONER /APPELLANT
VERSUS
STATE OF HARYANA
…RESPONDENT
ON SUBMISSION TO THE HON’BLE HIGH COURT OF HARYANA (APPEAL FILED ON THE BEHALF OF APPELLANT)
LIST OF REFERENCES
BOOKS: THE INDIAN PENAL CODE, 1860 (a) RATTANLAL AND DHIRAJLAL’S THE INDIAN PENAL CODE (b) K.D. GAUR, THE INDIAN PENAL CODE
CODE OF CRIMINAL PROCEDURE, 1973 (a) RATTANLAL AND DHIRAJLAL’S, THE INDIAN PENAL CODE
WEBSITES (a) www.highcourtcases.com (b) www.judis.nic.in
STATUTES (a) INDIAN PENAL CODE, 1860 (b) CODE OF CRIMINAL PROCEDURE, 1973
STATEMENT OF JURIDICTION
The Appellants humbly submits this memorandum for a petition filed before the Hon’ble HIGH COURT OF HARYANA.
The Appellants has approached the Hon’ble High court under the Section 374 clause (2) of CRPC which states that “ 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, may appeal to the High Court” appealing that the appellants are not liable for Murder under Section 302, IPC since there was no common intention as there was no prior meeting of minds.
SUMMARY OF FACTS
KARIM AND SHERSHAH LIVED IN THE SAME VILLAGE. SHERSHAH ALONG WITH HIS FAMILY INCLUDING HIS WIFE “SOBTI”, SON “GAJENDER”, DAUGHTER “NAINA” AND HIS BROTHER SURI SHAH LIVED IN SAME HOUSE. SURI SHAH OWED A DEBT TO KARIM OF RS. 20,000 KARIM AND NAINA WAS IN LOVE WITH EACH OTHER AND KARIM USE TO MEET HER ON THE WEEKENDS WHEN HER FATHER WAS NOT AT HOME, ON PRETEXT TO COLLECT MONEY. SHERSHAH DID NOT LIKE KARIM’S PRESENCE IN HIS ABSENCE. HE TOLD KARIM MANY TIMES NOT TO VISIT HIS HOUSE IN HIS ABSENCE BUT KARIM IGNORED IT. ON AUGUST 5, SURI SHAH CALLED KARIM TO COME AND COLLECT HIS MONEY IN THE EVENING. KARIM WENT TO THEIR HOUSE AT 8:30 IN THE EVENING. ON HEARING WHISPERING COMING FROM BACKYARD OF THEIR HOUSE, THEY ALL WENT TO SEE WHERE THEY SAW KARIM AND NAINA TALKING. SHERSHAH ON SEEING THEM TOGETHER LOST HIS TEMPER AND STARTED ABUSING HIM. GAJENDER BROUGHT A LATHI FROM INSIDE AND GAVE A BLOW TO KARIM ON HIS LEG. THN SURI HAH GRABBED THE LATHI AND STARTED BEATING HIM ON HIS HEAD AND CHEST. ON HEARING THE HUE AND CRY VILLAGERS CAME TO HIS RESCUE, THEY FOUND THAT SURI SHAH WAS BEATING HIM WHILE OTHER TWO WERE ABUSING HIM, TILL THEN KARIM WAS BLEEDING AND WAS UNCONCIOUS. KARIM WAS TAKEN TO THE HOSPITAL BY THE VILLAGERS, WHERE HE DIED AFTER THREE DAYS WITHOUT GAINING HIS CONCIOUSNESS. POST MORTEM REPORT CONFIRMED THAT KARIM SUFFERED INJURIES IN HIS HEAD AND FRACTURES OF THREE RIBS AND THERE WAS MUCH LOSS OF BLOOD. WHILE NONE OF THE INJURIES INDEPENDENTLY WERE SUFFICIENT TO CAUSE DEATH.
STATEMENT OF ISSUES
WHETHER IN THE LIGHT OF FACTS AND CIRCUMSTANCES APPELLANT IS
GUILTY UNDER SECTION 302 OF INDIAN PENAL CODE, 1860. WHETHER THERE WAS A COMMON INTENTION OF CAUSING DEATH. WHETHER THERE WAS GRAVE AND SUDDEN PROVOCATION . WHETHER THERE WAS COMMON OBJECT
SUMMARY OF PLEADINGS
WHETHER IN THE LIGHT OF FACTS AND CIRCUMSTANCES APPELLANT IS GUILTY UNDER SECTION 302 OF INIDAN PENAL CODE, 1860.
COUNCIL ON BEHALF OF APPELLANT MOST RESPECTFULLY SUBMITS BEFORE THE HON’BLE COURT THAT THE SESSION COURT DID NOT CONSIDER ALL THE FACTS AND CIRCUMSTANCES OF PRESENT MATTER PROPERLY. SESSION COURT DECISION FOR UPHOLDING THE APPELLANT FOR LIFE IMPRISONMENT LEADS TO MISCARRIAGE OF LAW AND JUSTICE. THE APPELLANT SHOULD NOT BE CONVICTED UNDER SECTION 302 FOR LIFE IMPRISONMENT WHICH CAN BE WELL SAID THROUGH THE EXCEPTIONS GIVEN IN SECTION 300. ACCORDING TO EXCEPTION -1 CULPABLE HOMICIDE IS NOT MURDER IF THE OFFENDER, WHILST DEPRIVED OF THE SELF CONTROL BY GRAVE AND SUDDEN PROVOCATION, CAUSES DEATH OF ANY OTHER PERSON BY MISTAKE OR ACCIDENT. BY THIS EXCEPTION IT IS CLEAR THAT THEY LOST THEIR SELF CONTOL OF WHAT THEY SAW AND IN THE SUDDEN PROVOCATION THEY HIT KARIM. IN THE CONCEPT OF MURDER THERE ALSO INCLUDES THE INTENTION OF THE PERSON COMMITTING MURDER AND HOW MUCH A PERSON INTENTION IS THERE FOR COMMITTIN IT. (a) IN THE INSTANT CASE THE APPELLANT DID NOT HAVE THE INTENTION TO KILL THE RESPONDENT WHICH CAN BE CLEARED FROM THE FACTS AND JUDGMENTS OF THE VARIOUS CASES. (b) IN THE CASE THE COURT HAD MADE A DIFFERENCE BETWEEN MURDER AND CULPABLE HOMICIDE WITH REFERENCE TO INTENTION AND KNOWLEDGE OF COMMITTING A CRIME. Cited with the approval the following observation from the decision of Supreme Court – In the view of S.C the evidence on record, it does not appear that the intention on the part of the accused was to cause death or such bodily injury as would have resulted in the death of his wife. There would be much more activity on the part of the accused if his intention was to commit the murder of his wife. It seems that as soon as the accused entered the house, there appeared to be some quarrel with his wife and in that fight first, he threw water pot and thereafter a kerosene lamp. The burning seems to be more out of the fact that unfortunately at that time, the lady was wearing nylon sari. Had she not been wearing a nylon sari, it is difficult to imagine how she could have been burnt to the extent of 70%. In our view this was a case which clearly falls under Exception 4 of Section 300 IPC since there was sudden fight. There was no premeditation either.
Therefore the accused-appellant is liable to be convicted for the offence punishable under Section 304 Part-I.
Cited with the approval the following observation from the decision of Allahabad high court – In our view, it is enough, for the purpose of enabling an accused person to get the advantage of a general or special exception to criminal liability if we are left in reasonable doubt, based on substantial grounds, whether circumstances existed which could give the accused the benefit of an exception, vide Parbhoo v. Emperor, AIR 1941 All 402 (FB). There are substantial grounds in this case for believing that facts and circumstances, constituting a grave and sudden provocation for the appellant, existed, and for holding that the appellant stabbed his brother while he was deprived of the power of self-control. In cases where the power of self-control has been lost, the power to form the intention required for an offence punishable under Section 304, Part I, must necessarily be lacking.
Cited with the approval the following observation from a decision of S.C – In our view, from the evidence on record, it does not appear that the intention on the part of the accused was to cause death or such bodily injury as would have resulted in the death of his wife. There would be much more activity on the part of the accused if his intention was to commit the murder of his wife. It seems that there was a fight as soon as he came to the house under the drunken state and in the fight, he first hit her left knee with a water pot and thereafter, threw kerosene lamp on her. It is obvious from the evidence that this was done suddenly in the heat of passion. If there was any intention to commit her murder, as mentioned in Section 299 IPC, there would have been much other acts like pouring kerosene on the deceased etc. on the part of the accused. Through this case the intention of app. is proved that if there is any intention on the part of app. to murder the resp. then there will be some preparation or he should carry any such weapon already to commit the offence of murder but he carry the stick which lies nearby in market. From the witness it is also stated that fight between them starts mainly from the resp. side and if there was any intention to commit murder, as mentioned in sec. 299 of Indian Penal Code, there would have been much other acts.
PRAYER
(a)
THEREFORE IN THE LIGHT OF THE LAW POINTS PUT FORTH, CASES CITED AND ARGUMENTS FORWARDED, IT IS HUMBLY PRAYED FOR THE APPELANT THAT THIS HON’BLE COURT MAY KINDLY RECONSIDERED THE FOLLOWING JUDGMENT IN THE PARTICULAR CASE BY THE SESSION JUDGE AND,
(b)
PASS ANY OTHER ORDER AS THE COURT MAY DEEM FIT
