Prosecution

TC-15

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT

COMPETITION, 2016

BEFORE THE COURT OF SESSIONS AT MAVADA

S.C. NO.101 OF 2016

STATE OF JAGUTAR

(PROSECUTION) V. ABHISHEK , ANGAD & DUSHYANT

(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 186, 107 & 304 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HON‟BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE PROSECUTION

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2016

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TABLE OF CONTENTS TABLE OF CONTENTS .................................................................................................................................... b TABLE OF CASES: .................................................................................................................................. e BOOKS: .................................................................................................................................................. h STATUTES: ............................................................................................................................................. i STATEMENT OF JURISDICTION ....................................................................................................................... j STATEMENT OF FACTS .................................................................................................................................. k STATEMENT OF CHARGES .............................................................................................................................. l SUMMARY OF ARGUMENTS .......................................................................................................................... m ARGUMENTS ADVANCED .............................................................................................................................. 1 A. THAT THE ACCUSED AND CO-ACCUSED SHOULD BE HELD LIABLE UNDER 304 OF INDIAN PENAL CODE. ....................................................................................................................................... 1

1.

NOWLEDGE GO HAND I N HAND ........................................................... 3 WHEN I NTENTION A ND K

2.

WHEN SUDDEN FIGHTS LEAD TO DEATH OF A PERSON. ............................................................. 4

B.

WHETHER THE CO-ACCUSED AIDED THE COMMISSION OF THE ACT OF THE ACCUSED.... 4

1.

THE CONCEPT OF „PRINCIPAL A ND ACCESSORY‟. ....................................................................... 6

2.

THE CO-ACCUSED I NSTIGATED THE ACCUSED TO DO THE ACT A ND HENCE ARE PART OF THE

CRIME. .................................................................................................................................................. 6 3.

ACTIVE STIMULATION IS ESSENTIAL FOR CAUSING ABETMENT. ................................................ 7

4.

WHEN DOES ACTUALLY I NSTIGATION AMOUNT TO ABETMENT . ................................................ 9

5.

THE ACCUSED A ND THE CO-ACCUSED HAD COMMON I NTENTION TO CAUSE DEATH OF THE

DECEASED. .......................................................................................................................................... 10 C. WHETHER THE ACCUSED AND CO-ACCUSED OBSTRUCTED THE PUBLIC SERVANT WHILE HE WAS DISCHARGING HIS LAWFUL DUTIES. ................................................................................ 13

1.

PUBLIC SERVANT ACTING I N GOOD FAITH A ND U NDER COLOR OF HIS OFFICE. ..................... 14

PRAYER ......................................................................................................................................................... o

MEMORANDUM O N BEHALF OF THE PROSECUTION


c

LIST OF ABBREVIATIONS AIR

All India Reporter

All

Allahabad High Court

Cal

Calcutta High Court

Cri LJ / Cr LJ

Criminal Law Journal

Cr.P.C.

Code of Criminal Procedure

Del

Delhi High Court

DW

Defence Witness

Ed.

Edition

Guj

Gujarat High Court

IPC

Indian Penal Code

IC

Indian Cases

Mad

Madras High Court

n.

Foot Note no.

Ori

Orissa High Court

p.

Page No.

P&H

Punjab and Haryana High Court

Pat

Patna High Court

PW

Prosecution Witness

Raj

Rajasthan High Court

SC

Supreme Court



d

SCC

Supreme Court Cases

SCJ

Supreme Court Journal

SCR

Supreme Court Reporter

Sec.

Section

v.

Versus



e

INDEX OF AUTHORITIES TABLE OF CASES:

1. Afrahim Sheikh V State Of West Bengal (1964) (1964) 2 Cr LJ 350………………………….…..4 350………………………….…..4 2. Amiruddin, (1922) Amiruddin, (1922) 24 Bom LR 534, 542…………………………………………………. 542…………………………………………………. 8 3. Anda V. State Of Rajasthan AIR Rajasthan AIR 1966 SC 148………………………………..……… 148………………………………..………1, 1, 13 4. Ankeri V State Of Rajasthan AIR Rajasthan AIR 1994 SC 842…………………………………..…….. 842…………………………………..……..13 13 5. Aruna Ramchandra Shanbaug V. Union Of India, India, (2011) 4 SCC 454……………… 454……………….. ..…. ….2 2 6. Babu Ram V State Of Uttar Pradesh (2002) Pradesh (2002) 6 SCC ……………………………………. …………………………………….11 11 7. Babulal, 1956 Babulal, 1956 Bom LR 1021…………………………………………………… 1021…………………………………………………… ..….….. ..….…..14 14 8. Baby John V. State, State, 1953 Crlj 1273 ……………………………………………… ..……. ..…….8 8 9. Baleshwar Rai V State Of Bihar [1963] [1963] 2 SCR 433……………………………… 433……………………………….. ..…… ……12 12 10. Banwari 10. Banwari Lal V. State Of Haryana 1979 Haryana 1979 Cl R (P&H) 233 (235)………………… (235)…………………..... .....…… ……7 7 11. Baxanto 11. Baxanto V. State Of U.P. AIR U.P. AIR 1965 All 120 : (1965) J Crlj 267…… 267 ……..………………... ………………...…. ….7 7 12. Bhaga 12. Bhaga Mana, Mana, (1927) 30 Bom LR 1124…………………………… 1124……………………………... ...……………… ……………….. ..… …14 13. Bhur 13. Bhur Singh V. State Of M.P ., ., 1985 C Cr J (MP) 184............……………………… 184............……………………….. ..…… ……3 3 14. Birdhi 14. Birdhi Chand Jaipuria V Darbari Jayaswal AIR AIR 1932 Pat 276……………… 276………………................15 ................15 15. BN 15. BN Rishideo Pande V State Of Uttar Pradesh(1955) Pradesh(1955) Cr LJ 873……………………… 873………………………...12 ...12 16. BN 16. BN Srikantaiah V State Of Mysore AIR Mysore AIR 1958 SC 672………………………… 672…………………………..... .....…….. ……..12 12 17. Chahat Khan V. State Of Haryana AIR Haryana AIR 1972 SC 2574 : 1972 SCC (Cri) 558 : 1972 UJ (SC) 273 : (1972) 3 SCC 408………………………………………………… 408………………………………………………… ..… ..…...……. ...…….3 3 18. Cooverji, Cooverji, (1906) 9 Bom LR 159, ……………………………………………… ………………………………………………..……. …….…10 19. D. 19. D. Yohannan V. State Of Kerala, Kerala, AIR 1958 Ker 207 :1958 Crlj 1021……………… 1021………………... ...… …2 20. Daya 20. Daya Nand V. State Of Haryana, Haryana, 2008 Crlj 2975 (SC)……………...……………… (SC)……………...………………... ...… …2 21. Dharma 21. Dharma Pal V. State Of U.P ., ., 2008 Crlj 1016 (SC) : AIR 2008 SC 920………………… 920…………………5 5 22. Dukhan 22. Dukhan Sahu V Emperor AIR AIR 1937 Pat 633……………………………………… 633………………………………………..... .....… …15 23. Dukhmochan 23. Dukhmochan Pandey V State Of Bihar AIR AIR 1998 SC 40………… 40…………..….………………...12 ………………...12 24. Faguna 24. Faguna Kanta Nath V. State Of Assam, Assam, AIR 1959 SC 673 ………………………. ……………………… .….…11 25. Ganraj V. State, State, 2008 Crlj 253 (Raj)……………………………………………… (Raj)……………………………………………… ..…..10 ..…..10 26. Hardev 26. Hardev Singh V State Of Punjab AIR Punjab AIR 1975 SC 179………………………… 179…………………………..…...… ...….….11 27. Hari 27. Hari Om V State Of Uttar Pradesh (1993) Pradesh (1993) Supp 2 SCC 1………… 1………….. ..……………… ……………….. ..…11 …11 28. Hari 28. Hari Ram V State Of Uttar Pradesh (2004) Pradesh (2004) 8 SCC 146…………………………………12 146…………………………………12 MEMORANDUM O N BEHALF OF THE PROSECUTION


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29. Harjit 29. Harjit Singh V State Of Punjab (2002) Punjab (2002) 6 SCC 739……………………………… 739………………………………... ...… …..…9 ..…9 30. Inder 30. Inder Singh V. State Of Pepsu, Pepsu, AIR 1955 SC 439 : 1955 Crlj 1014………………… 1014…………………... ...…3 …3 31. Jagrup 31. Jagrup Singh V. State Of Haryana, Haryana, AIR 1981 SC 1552……………………… 1552……………………….. ..…… …….. ..…..4 …..4 32. Jamnadas 32. Jamnadas Tharoomal V Emperor AIR AIR 1940 Sind 42…………………… 42……………………........ ........………… …………15 15 33. Jaspal 33. Jaspal Singh V. State Of Punjab, AIR Punjab, AIR 1986 SC 683 …………………………………….. 3 34. Jatto V Emperor AIR AIR 1915 Lah 456…………………………………………………… 456…………………………………………………… .15 35. Jayaraj 35. Jayaraj V. State Of T.N. AIR T.N. AIR 1976 SC 1519…………………………………… 1519……………………………………..….…….1 ….…….1 36. Joginder 36. Joginder Singh V State Of Haryana AIR Haryana AIR 1994 SC 461………………………… 461…………………………..………12 ………12 37. Katar 37. Katar Singh V. State Of Punjab (1994) Punjab (1994) 3 SCC 569 ……………………………… ……………………………….. ..…….. ……..5 5 38. Keshub 38. Keshub Mahindra V. State Of M.P ., ., 1996 (3) Crimes 288 (SC)……………………… (SC)………………………..…3 39. Khadim 39. Khadim Sheikh (1869) Sheikh (1869) 4 Beng LR (Acr J) 7…………………………………………….. 7……………………………………………..10 10 40. Kishori 40. Kishori Lal V. State Of M.P., AIR M.P., AIR 2007 SC 2457…………………………………… 2457……………………………………..…..7 …..7 41. Krishna 41. Krishna Govind Patil V State Of Maharashtra (1963) Maharashtra (1963) 2 Cr LJ 351…………………… 351……………………...8 ...8 42. Lakhan 42. Lakhan V. State, State, 2008 Crlj 1194 (MP). …………………………………………… .…….2 …….2 43. Mahbub 43. Mahbub Shah V Emperor AIR AIR 1945 PC 118…………………………………… 118……………………………………..………12 ………12 44. Malan 44. Malan V. State Of Maharashtra ,AIR ,AIR 1960 Bom …………………………… …………………………….. ..…………. ………….6 6 45. Matiullah 45. Matiullah Sheikh V State Of West Bengal AIR AIR 1965 SC 132…………………………… 132……………………………11 11 46. Maxwell 46. Maxwell V. D.P.P For Northern India, India, (1987) 1 WLR 1350 ………………………… ………………………….... .... 6 47. Mohammad 47. Mohammad Salam V. State Of M.P ., ., (1992) 1 Crimes 36 (MP) .…………………… .…………………….. ..…. ….5 5 48. Mohan 48. Mohan Singh V State Of Punjab AIR Punjab AIR 1963 SC 174. ……………. …………….…………………. ………………… .…..12 …..12 49. Mohan 49. Mohan V. R, R, (1967) 2 Ac 187 PC : (1967) 2 ALL ER 58 PC………………………… PC…………………………..…6 50. Mohd 50. Mohd Isub Ali V. State, State, 2008 Crlj 100 (Gau) : 2007 (3) GLT 962 ………………….. …………………..… …14 51. Mubbi 51. Mubbi V State Of Madhya Pradesh (1999) 1314……... ...………… …………..………. ……….….15 ….15 Pradesh (1999) SCC (Cr) 1314…… 52. Munna 52. Munna V State Of Uttar Pradesh AIR Pradesh AIR 1993 SC 278………… 278…………..... .....………………… …………………..……8 ……8 53. Nandu 53. Nandu Rastogi V State Of Bihar (2002) (2002) 8 SCC 9…………………………………… 9……………………………………......11 ......11 54. Nashri 54. Nashri Naik V. State, State, 1998 Crlj 3984 (Ori)………………………………………… (Ori)………………………………………….. ..… ….13 55. Nazir 55. Nazir Ahmad V. Emperor , AIR 1927 All 730 : 28 Crlj 313…………………………… 313……………………………....8 ....8 56. Nirbhai 56. Nirbhai Singh, Singh, 1972 Crlj 1474 (MP)………………………………………………… (MP)………………………………………………… ...… ...…2 57. Odwil Devaki Amma V. State Of Kerala, Kerala, 1982 Cr LJ 11 Ker K er (NOC)…………………… (NOC)……………………14 14 58. Om Prakash V. State Of Haryana 2015 Haryana 2015 Crlj 586 : (2015) 2 SCC 84………… 84…………... ...… ….....….. .....…..9 9



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59. Pandurang 59. Pandurang V State Of Hyderabad AIR AIR 1955 SC 216……………………… 216………………………... ...…………………………………………………………… …………………………………………………………… ...12 60. Parimal 60. Parimal Chaterjee,(1932) Chaterjee,(1932) 60 Cal 327………………………………………… 327…………………………………………... ...…….…. …….….8 8 61. Phudki 61. Phudki V. Stae Of Uttar Pradesh, Pradesh, AIR AIR 1955 All 104……………………………… 104………………………………... ...… …14 62. Poomalai 62. Poomalai Udayan, (1898) Udayan, (1898) 21 Mad 296; Pukot Kotu, (1896) 19 Mad 349. ....……… ....……….....14 .....14 63. Prabhati 63. Prabhati Lal V. State, State, 2008 Crlj 859 (Raj)………………………………… (Raj)………………………………….. ..……… ………... ...…. ….2 2 64. Q.E. V. Sommanna, Sommanna, 1827 ILR 15 Mdr. 221 ……………………………...………… ……………………………...………….......13 .......13 65. Queen V. Rasookoollah, Rasookoollah, (1869) 12 WR (Cr) 51………………………… 51…………………………..………... ……….....….. ..…....9 ..9 66. R.V.Cogen 66. R.V.Cogen And Leak ,(1976) ,(1976) 1 QB 217 : (1957) 2 ALL ER 1059 CA…… CA……..………... ………...…. …..6 .6 67. Radhey 67. Radhey V. State Of Chhattisgarh, Chhattisgarh, 2008 Crlj 3520 (SC) : AIR 2008 SC 2878. ……... ……...…..2 …..2 68. Raghunath 68. Raghunath Dass, Dass, (1920) 5 PLJ 129…………………………………………..……… 129…………………………………………..……….. ..…. ….8 8 69. Rajib 69. Rajib Neog V. State Of Assam, Assam, 2011 Crlj 399 (Gau)………………………………… (Gau)…………………………………..…..8 …..8 70. Ramabatar 70. Ramabatar Agarwalla V. State, State, 1983 Crlj 122 (Ori) : (1982) 54 Cut LT LT 345. ………. ……….…9 71. Ramashish 71. Ramashish Yadav V State Of Bihar (1999) (1999) 8 SCC 555……………………… 555……………………….. ..……… ………....12 ....12 72. Re Smith, (1858) 3 H&N 277 : Ferguson : Ferguson V. Weaving , (1951) 1 KB 814 : (1951) 1 ALL ER 421……………………………………………………………………… 421……………………………………………………………………… ...……… ...………..…6 73. S. Ram Lah Ram Lah In Re AIR 1951 Mad 773………………………………………………………………… 773………………………………………………………………… ..........…………… ..........…………….... ....…. ….15 15 74. Salabhai V. Emperor , AIR 1949 Nag 19.8…………………………………… 19.8……………………………………... ...………. ……….14 14 75. Santosh Kumar Jain V. State, AIR State, AIR 1951 SC 201……………………………… 201………………………………... ...……… ………13 13 76. Shangara V State Of Punjab (1995) Punjab (1995) SCC (Cr) 163………………………………… 163…………………………………... ...… …13 77. Shankarlal Kacharabhai V State Of Gujarat (1965) (1965) 2 Cr LJ 226…………………… 226……………………..…10 78. Shri Ram V. State Of U.P., SC…........................................................................9 ................................................9 U.P., AIR 1975 SC…........................ 79. Sital V. Emperor, AIR Emperor, AIR 1935 Oudh 468 ; 36 Crlj 1151…………………………… 1151……………………………...... ......… …10 80. Sonti Rama Krishna V. Sonti Shanti Sree, Sree, AIR 2009 SC 923…………………... 923…………………...………..7 ………..7 81. State Of Karnataka V Jinappa Payappa Kudachi Kudachi (1994) Supp 1 SCC 178, (1994) SCC (Cr) 330…………………………………………………………………………… 330…………………………………………………………………………….. ..…… ……15 15 82. State Of M.P. V.Mukesh (2006) V.Mukesh (2006) 13 SCC 197 : (2007) 2 SCC (Cn)680……………… (Cn)680……………….. ..… …9 83. State Of Punjab V. Iqbal Singh, Singh, AIR 1991 SC 1532 : 1991 Crlj 1897 …………….. ……………..…… ……7 7 84. State Of Uttar Pradesh V Iftikhar Khan AIR Khan AIR 1973 SC 863………………………… 863………………………….... ....… …7 85. State V. B G Misar AIR AIR 1957 Bom 10……………………………………..… 10……………………………………..…......... .........… …...15 MEMORANDUM O N BEHALF OF THE PROSECUTION


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86. Subran V. State Of Kerala, Kerala, 1993 Crlj 1387 (SC) : 1993 AIR SCW (1014) : (1993) 3 SCC 32…………………………………………………………………………………… 32…………………………………………………………………………………… ..…… ..……3 3 87. Sukha Singh V. State Of Karnataka, Karnataka, 2015 Crlj 3133 (P&H). ………………………. ……………………….……4 ……4 88. Sukhbir Singh V Kirtan Singh(2005) Singh(2005) 10 SCC 567. ………………………………… …………………………………..... .....… …8 89. Sundaramurthy V State Of Tamil Nadu AIR Nadu AIR 1990 SC 2007. ………………………… …………………………..…5 90. Surender V. State Of Haryana (2006) Haryana (2006) 12 SCC 375 . ………………………………… …………………………………..…7 91.

Suresh V State Of Uttar Pradesh AIR Pradesh AIR 2001 SC 1344…………………………… 1344……………………………..….….12 ….….12

92.

The Queen V. Ameer Khan , Khan , (1871) 17 WR (Cr) 15………………………… 15………………………….. ..…………. ………….9 9

93.

Trilok Chand V. State Of Delhi, Delhi, AIR 1977 SC 666…………………………… 666……………………………..….…...…9 …...…9

94.

Tuck V. Robson, Robson, (1970) 1 All ER 1171………………………………………… 1171…………………………………………..….…….7 …….7

95.

Yallappa V State Of Karnataka (1994) Karnataka (1994) 1 SCC 730…………………………… 730……………………………..………..12 ………..12

96.

Yogendramorarji V State Of Gujarat AIR AIR 1980 SC 660………………………… 660…………………………..….….11 ….11

BOOKS: th

1.

Field, C.D., Expert C.D., Expert Evidence: Medical And Non-Medical, (4 Non-Medical, (4 Ed 2007)

2.

Gaur,

KD Firearms nd

Jurisprudence, Jurisprudence, (2

,Forensic

Ballistics,

Forensic

Chemistry

And

Criminal

Ed 1989) th

3.

Gaur, KD, Criminal Law: Law: Cases And Materials, Materials, (6 Ed. 2009)

4.

Gupte And Dighe, Criminal Manual , (7 Ed. 2007)

5.

Harris, Criminal Law, ( 22 22 Ed. 2000)

6.

Hill, Mcgraw, Criminal Investigation Investigation,, (4 Ed. 2004)

7.

I, III, IV Nelson R. A. Indian A. Indian Penal Code, Code, 10 Ed. (2008)

8.

I, Kathuria, R.P. Supreme Court On Criminal Law, 1950-2002, ( 1950-2002, ( 6 Ed. 2002)

9.

II, Mitra, B.B., Code Of Criminal Procedure, 1973 (20 1973 (20 Ed. 2006)

th

nd

th

th

th

th

nd

10. II, Nandi, Criminal Ready Referencer, ( Referencer, ( 2 Ed. 2007) th

11. II, Princep‟s Commentary On The Code Of Criminal Procedure, 1973 (18 1973 (18 Ed. 2005) th

12. III, Sarvaria, SK, Indian SK, Indian Penal Code, Code, (10 Ed. 2008) st

13. James, Jason, Forensic Jason, Forensic Medicine: Clinical And Pathological Aspects, Aspects, (1 Ed. 2003) th

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

15. Lal, Batuk, The Law Of Evidence, Evidence, (18 Ed. 2010) th

16. Lyons, Medical Lyons, Medical Jurisprudence & Toxicology, (11 Toxicology, (11 Ed. 2005) rd

17. Modi‟s Medical Modi‟s Medical Jurisprudence And Toxicology, Toxicology, (23 Ed. 2010) MEMORANDUM O N BEHALF OF THE PROSECUTION


i th

18. Parikh, C. K, Textbook Of Medical Jurisprudence, Forensic Medicine & Toxicology, ( 6 Ed. 2002) rd

19. Ratanlal And Dhirajlal, The Indian Penal Code, Code, 33 Ed. (2011) nd

20. Ratanlal And Dhirajlal, The Law Of Evidence, Evidence, 22 Ed. (2006) th

21. Sarkar, Law Sarkar, Law Of Evidence, ( 13 13 Ed,1990) th

22. Saxena & Gaur, Arms Gaur, Arms And Explosives, Explosives, (10 Ed. 2012) th

23. Sharma, B.R., Forensic B.R., Forensic Science In Criminal Investigation & Trials, Trials, (4 Ed. 2003) nd

24. Tyagi, Surendra Prakash, Criminal Trial (2 (2 Ed. 1996) rd

25. Varshi, H.P. Criminal Trial And Judgment , (3 Ed. 1981) STATUTES:

1. The Code Of Criminal Procedure, Procedure, 1973 (Act 2 Of 1973) 2. The Indian The Indian Evidence Act, 1872 Act, 1872 (Act 18 Of 1872) 3. The Indian The Indian Penal Code, Code, 1860 (Act 45 Of 1860)



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STATEMENT OF JURISDICTION

The Prosecution submits that the Hon‟ble Court of Sessions, Mavada has Jurisdiction to try the instant matter under Section 209 read with Section 177 of The Code of Criminal Procedure, 1973.



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STATEMENT OF FACTS 

Abhishek and Angad are doing a master‟s degree in political science & administration from the presidency college (“college”) in Mavada, capital city of Jagutar, Union of Rabat. Both belong belon g to the Lepat community (“community”)Abhishek contested the college union (“union”) election and was elected as its president in 2015.



Tanya and Natasha are students of Final Year of B.A. Political Science & Administration. They are also Members of the Union. They complained to Abhishek that two boys in particular were teasing them regularly. One evening when they were standing at the bus stop; the two boys came in a motorcycle and started teasing them. Abhishek threatened them with dire action. When a few people among the public started abusing them they left.



The incident repeated on March 30, 2016. Abhishek and Angad were furious and they started pelting stones at them and they hurriedly drove away by b y showing sign of pistol by their hands. In the evening after college hours, a police officer accosts Abhishek and Angad and threatens them saying “keep your trap shut and mind your own business otherwise i will have to show you my stuff”. He also said “I “I know your kind of people who support anti-nationals, I have dealt with them”. Abhishek discussed with his friend Dushyant who is a local leader of the political party, to which the union is affiliated, who said “iski yeh himmat, salley k o mar dalo, kam se kam hamare neta toh khush honge” honge”



After a week on April 7, 2016 the boys came again to tease the girls near the bus stop. Abhishek and Angad started pelting stones at the bikers. The people standing at the bus stop started running in panic. Suddenly the inspector comes from behind and slaps Abhishek and violently threatens him saying “i will teach you a lesson you will never forget. I have taught this lesson to many”. During many”. During the fracas, the inspector puts his hand on his belt showing the gun holster.



Angad shouted “he is going to shoot you, quickly escape”. Abhishek in a fit of rage runs and takes a rod that was lying down in the auto garage next to the bus stop and throws it at the inspector. The inspector not expecting this gets hit on the head and falls awkwardly on the pavement and gets hit on the head again by the stump of a tree. Inspector was declared dead. Abhishek was arrested along with his friend Angad and charged with manslaughter of a police officer on duty.



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STATEMENT OF CHARGES

CHARGE 1

Abhishek Lepat – Lepat – has has been charged under section 186, 304 read with section 34 the Indian Penal code, 1860 for the manslaughter of a police officer on duty.

CHARGE 2

Angad Lepat - has been charged under section 186,107, 304 read with section 34 the Indian Penal code, 1860 for the manslaughter of a police officer on duty.

CHARGE 3

Dushyant - has been charged under section 107, 304 read with section 34 the Indian Penal code, 1860 for the manslaughter of a police officer on duty.



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SUMMARY OF ARGUMENTS A. THAT THE ACCUSED AND CO-ACCUSED ARE SHOULD BE CHARGED UNDER 304 OF IPC.

It is humbly submitted before the Hon‟ble Hon‟ble court that the accused Abhishek and co-accused Angad and Dushyant had the common intention of killing the deceased, Amit Chaudhary who was a public servant. When the accused got the opportunity he killed Amit Chaudhary with the intention and knowledge of causing such bodily injury which would result in his death. He used a metal rod to cause that injury which resulted in a brain hemorrhage to the deceased. They all should be punishable for culpable homicide not amounting to murder under s.304 of the Indian penal code. B. THAT THE CO-ACCUSED AIDED THE ACCUSED WITH HIS ACT AND THUS CAUSED ABETMENT.

It is humbly submitted that both the co-accused instigated the accused to do the act by saying various words to him and also intentionally aided him in doing so and thus committed the offence of abetment. Abetting includes aiding, counseling, procuring or encouraging someone to do the act under s.107 of IPC. The three accused concerted together and conspired to kill Amit Chaudhary, instigated Abhishek to do the act and also had the common intention of killing him. Thus all the elements of abetment being satisfied all the accused are to be held liable for the offence of abetment. C. THAT THE ACCUSED AND CO-ACCUSED OBSTRUCTED A PUBLIC SERVANT WHILE HE WAS DISCHARGING HIS LAWFUL DUTIES.

It is humbly submitted that Abhishek and Angad An gad obstructed Amit Chaudhary, a public servant while he came to stop them from creating public nuisance and were pelting stones over the complainant. Abhishek even killed him while he was obstructing him. Angad and Abhishek used physical violence and fought with Amit Chaudhary. He was discharging his lawful duty which was justifiable by law by stopping the nuisance they were doing. Abhishek and Angad stopped Amit Chaudhary from discharging his duty and obstructed him. They knew he was a public servant, that fact was not concealed by them then too they obstructed him and thus they should be held liable under s.186 of IPC. MEMORANDUM O N BEHALF OF THE PROSECUTION


1

ARGUMENTS ADVANCED A. THAT THE ACCUSED AND CO-ACCUSED SHOULD BE HELD LIABLE UNDER 304 OF INDIAN PENAL CODE.

It is humbly submitted before before the Hon‟ble court that in the present case the accused is charged with culpable homicide not amounting to murder under section 304 of IPC. Section 299 of IPC defines culpable homicide as “whoever causes death while doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable 1

homicide. Under section 299 of the Indian penal code, homicide becomes culpable when a 2

human being terminates the life of another in blameworthy manner. The present matter lies under unlawful homicide as it is a causing of death by doing an act with the intention and knowledge of causing such bodily injury as is likely to cause death. This is one of the elements through which culpability is set to be established, without these elements, an act though it may be by its nature criminal and may occasion death will not amount to offence of culpable 3

homicide.

„Intention and knowledge as the ingredient of section 299 postulate, the existence of a positive 4

mental attitude and the mental condition is the special mens rea necessary for the offence. Every act is followed by consequences, thus the consequence necessary to constitute the offence of culpable homicide is death. By „intention‟ it is meant that the expectation of the consequences in question and intention doesn‟t therefore necessarily involve premeditation, or thing out killing beforehand.

A man accepts the natural consequences of his acts and therefore in law is

1

HALSBURY‟S Laws of England , 4th Ed., Vol. II, para 1151, p. 613

2

th

ENNY on Outlines of Criminal Law, K ENNY Law, 19 Ed., para 79, pp.131-132

3

Rahee,(1866) Rahee,(1866) Unrep Cr C 6.

4

Jayaraj v. State of T.N. T.N. AIR 1976 SC 1519: (1976) 2 SCC 788: 1976 CrLJ 1186 following Anda v. State of Rajasthan AIR Rajasthan AIR 1966 SC 148: 1966 CrLJ 171



2 5

presumed to intend them. An act is set to cause death when death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and 6

reasonably contemplated as its result. In the present case there were two injuries inflicted upon the head of the victim which resulted in brain hemorrhage and hence in his death, one injury being inflicted by the accused with the metal rod and the other by the victim falling at the stump of the tree. The accused must be held liable because he intended and knew that his act of throwing the metal rod on the head of the victim would amount to such bodily injury which 7

would result in his death. Death occurs occu rs when brain dies completely.

Words used in section 299 “that bodily injury sufficient in the ordinary course of nature to cause 8

death” indicate that death is most probable result of the injury. In a case accused stabbed deceased with a gupti without any intention to cause death was held that it could be inferred that the accused was having knowledge that by causing injury by a gupti life of a person may come to 9

an end, hence it was considered as a case of culpable homicide . Where bodily injury sufficient to cause death is actually caused it is immaterial to go into the question as to whether the accused had intention to cause death or knowledge that the act will cause death and thus it is regulated by 10

the first part of section 304 of IPC. In the present case the accused is charged under the s.304 of I.P.C because the act of the accused falls under second proviso of Exception1 to S.300 of I.P.C. 11

In Harendra In Harendra Nath Mandal v. State of Bihar , it was held that an accused is guilty and punished under S.304 when a death is caused by the assailant under any of the circumstances mentioned in any of the five exceptions to S.300.

5

Nirbhai Singh, Singh , 1972 CrLJ 1474 (MP)

6

D. Yohannan v. State of Kerala, Kerala , AIR 1958 Ker 207 :1958 CrLJ 1021.

7

Aruna Ramchandra Shanbaug v. Union of India, India , (2011) 4 SCC 454 : AIR 2011 SC 1290.

8

Daya Nand v. State of Haryana, Haryana , 2008 CrLJ 2975 (SC) : AIR 2008 SC 1823 and Radhey v. State of Chhattisgarh, Chhattisgarh, 2008 CrLJ 3520 (SC) : AIR AIR 2008 SC 2878. 9

Lakhan v. State, State, 2008 CrLJ 1194 (MP).; Ganraj v. State, 2008 CrLJ 253 (Raj).

10

Prabhati Lal v. State, State, 2008 CrLJ 859 (Raj).

11

1993 1 Crimes 984 (SC)



3

1. WHEN INTENTION AND K NOWLEDGE NOWLEDGE GO HAND IN HAND

Intention is purpose or design with which an act is done it is the fair knowledge of the act coupled with the desire of it. An act is intentional so far as it exists in idea before it exists in the 12

fact; knowledge is awareness of the consequences of act . Intention and knowledge commonly 13

go together. Question of knowledge and intention are essentially question of fact. accused when inflict incised wounds with a spear on the head of the deceased, it was held that knowledge that the injury he was inflicting was likely to cause death must be imputed to the accused and it 14

is culpable homicide, the offence committed falling under part 1 of section 304 of IPC.

In a case the accused inflicted injuries on vital part of the deceased which were found to be sufficient in the ordinary course of nature to cause death, it was proved that he inflicted the injuries with the knowledge that with these injuries the victim was likely to die, it was held that 15

this case would fall under section 299 and will be punished under section 304 part 1. It was 16

held in the case of Jaspal Singh v. State of Punjab the location of injury coupled with the velocity of blow shown by the depth of injury shows that the intention was to cause death. According to medical evidence it was this injury which proved fatal. When a person is causing 17

an injury on such a vital part the intention to kill can certainly be attributed to him. 18

The law books , regards intention to the natural result of a man‟s act and not to to the condition of his mind, so when a normal man does an act, he should be credited with the intention of doing that which is inevitable consequences of his acts. Adverting to the contention that there is only a single blow, it was further held that the question is not whether the prisoner intended to inflict a serious injury or trivial one. But whether he intended to inflict the injury that is proved to be

12

Keshub Mahindra v. State of M.P., 1996 (3) Crimes 288 (SC) : (1996) 6 SCC 129 : 1996 SCC (Cri) 1124.

13

Bhur Singh v. State of M.P., 1985 C Cr J (MP) 184.

14

Inder Singh v. State of Pepsu, AIR 1955 SC 439 : 1955 CrLJ 1014.

15

Subran v. State of Kerala, 1993 CrLJ 1387 (SC) : 1993 AIR SCW (1014) : (1993) 3 SCC 32 : (1993) 2 Crimes 15.

16

Jaspal Singh v. State of Punjab, AIR 1986 SC 683 : 1986 CrLJ 488 : (1986) I Crimes 435 : (1986) 2 SCC 100.

17

Chahat Khan v. State of Haryana AIR 1972 SC 2574 : 1972 SCC (Cri) 558 : 1972 UJ (SC) 273.

18

nd

R.Ratanlal and K.T.Dhirajlal, (32 edn,2010)



4

present, referring to these observation of the case Virsa Singh, Singh, a divisional bench of Supreme 19

Court , laid down that the prosecution must prove (1.) That the body injury is present (2.) The injury is sufficient in the ordinary course of nature to cause death (3.)That there was knowledge that the injury was as such which could cause death. 2. WHEN SUDDEN FIGHTS LEAD TO DEATH OF A PERSON.

In the present case the accused intended to inflict the injury which caused death of Amit Chaudhary after a sudden fight. On careful consideration of the entire facts on record it is to be found that the inspector had not even taken out his gun from the holster and the accused with proper intention threw the metal rod towards the inspector and hit him on his head to cause such injury which could cause death of the deceased and thus the accused should be found guilty under S. 304 Part I. In another case the accused in a sudden fight wielded sharp edged weapons and caused fatal injuries, prosecution story was revealed promptly by the injured witness and it was stated that fight was taken place at a spur of the moment, without any intention to kill, it was 20

held that the offence is punishable under section 304 part 1. In the case of Nashari Naik v. 21

State

the accused caused lathi blows and one accused used cycle chain to cause death of the

deceased, it was held that the accused using lathis were guilty under section 304 and other under section 323. B. WHETHER THE CO-ACCUSED AIDED THE COMMISSION OF THE ACT OF THE ACCUSED.

It is humbly submitted before the Hon‟ble Hon‟ble court that the co-accused co-accused Angad and Dushyant have facilitated the commission of the death of Amit Chaudhary and thereby charged with the offence of abetment under section 107 of Indian penal code as they have instigated, intentionally aided and conspired for the commission of the act. The framers of Indian penal Indian penal code observe that „ the reasonable course, in our opinion is to consider speaking as an act and to treat accused as guilty

19

Jagrup Singh v. State of Haryana, AIR 1981 SC 1552 : 1981 CrLJ 1136 : 1981 CrLR (SC) 462 : (1981) 3 SCC 616. 20

Sukha Singh v. State of Karnataka, 2015 CrLJ 3133 (P&H).

21

Nashri Naik v. State, 1998 CrLJ 3984 (Ori).



5

of voluntary culpable homicide if if his speaking has caused death of the deceased whether, his words operated circuitously or directly. In the present case Angad and Dushyant voluntarily contributed to the culpable homicide of Amit Chaudhary by speaking the word which instigated Abhishek to do the act which resulted in the death of the deceased. All the accused in this matter should be punished under section 304, 107 r/w 34 of IPC for causing the death of Amit Chaudhary, a public servant who was discharging his lawful duty when the crime took place.

22

In Corpus Corpus Juris Secundum , the

meaning of the word abet has been defined as meaning to aid; to assist or to give aid; to command, or to counsel; to encourage, to induce, or to assist another onto commit. In order to bring a person abetting the doing of a thing, under und er any of the clauses enumerated enu merated under section 107, it is not only necessary to prove that the person who has abetted has taken part in the steps of the transaction but also in some way or the other, he has been connected with those step of the 23

transaction which are criminal.

Section 107 of the IPC, which contains the definition of abetment, has three clauses, and if an act of a person falls within the purview of any of them, it would amount to abetment. A person abets the doing of a word thing who intentionally aids, by any act or illegal omission, the doing of that thing. For the purposes of the first two clauses of this section, it is immaterial whether the person instigated commits the offence or not, or the persons conspiring together actually carry 24

out the object of the conspiracy. Abetment is constituted by: (1) instigating a person to commit an offence; or (2) engaging in a conspiracy to commit it; (3) intentionally aiding a person to commit it. If an accused is alleged to have been an accomplice to the principal offence, the charge may alleged he aided, he abetted, or counseled, and he will be convicted if he is proved to 25

have participated in one or o r more of these four ways.

22

See Corpus Juris Secundum , Vol. 1,p. 306.

23

Katar Singh v. State of Punjab (1994) 3 SCC 569 : 1994 CrLJ 3139 : (1994) 1 SCC (Cri) 899.

24

Faguna Kanta v. The State of Assam, 1959 CrLJ 917 (SC) : AIR 1959 SC673

25

Re Smith, (1858) 3 H&N 277 : Ferguson v. Weaving, (1951) 1 KB 814 : (1951) 1 ALL ER 421.



6

1. THE CONCEPT OF ‘PRINCIPAL AND ACCESSORY’.

The word „aid‟ „abe „abet‟ t‟ may be used together to charge a person who is alleged to have participated in a crime otherwise than as principal or as accessory after the fact. Such person may 26

also be charged as a principal. If two persons are present in scene of the crime and it is not clear who committed the act and who did no more harm than help, it is not necessary to show 27

who the actual perpetrator was in order to convict the both. Likewise a person charged as 28

accessory may be convicted as a principal. Halsbury, describing an abettor as a secondary party lays down that, any person who aids, abets, counsel, or procures the commission of the offence, whether an offence at common law or by statue, and whether indictable or summary, is liable to 29

be tried and punished as a principal offender.

2. THE CO-ACCUSED INSTIGATED THE ACCUSED TO DO THE ACT AND HENCE ARE PART OF THE CRIME.

It is well known that the act of abetment may take place in one of these three ways; (1) 30

instigation, (2) conspiracy, (3) intentional aid. Instigation must have reference to the thing that was done. Abetment implies a certain degree of activity in the abettor. An accused can be charged with abetment not only if he instigates any person to do a criminal act or intentionally aids by any act or illegal omission for the doing of the thing or engages somebody with a purpose 31

to do illegal act. These things are essential ingredients of section 107 and are all found in the 32

present case. Abetment may consist of passive assistance. In a case the presence of accused either with bhala or with spear on the scene of occurrence of marpit and then participation in the marpit was proved even if they did not actually apply their weapons, they were held to be

26

Maxwell v. D.P.P for Northern India, (1987) 1 WLR 1350 HL : (1978) 3 ALL ER 1140

27

Mohan v. R, (1967) 2 Ac 187 PC : (1967) 2 ALL ER 58 PC .

28

R.V.Cogen and Leak ,(1976) 1 QB 217 : (1957) 2 ALL ER 1059 CA.

29

th

HALSBURY‟S Laws of England, 4 Edn., Vol. 11, para 42, p.34.

30

Malan v. State of Maharashtra ,AIR 1960 Bom 393 : 1960 CrLJ 1189 : ILR 1958 Bom 700.

31

Banwari Lal v. State of Haryana 1979 Cl R (P&H) 233 (235).

32

Tuck v. Robson, (1970) 1 All ER 1171.



7 33

vicariously responsible for the injuries caused to the complaint party. Analyzing the law, Cross and Jones puts in that normally, an act of assistance or encouragement is required. Thus, mere abstention from preventing an offence generally is not enough but if A has a right control over B and deliberately fails to prevent B from committing an offence, his omission will constitute 34

aiding or abetting, if it amounts to a positive encouragement to be to commit the offence . In the present Angad being present pre sent on the crime scene did not prevent Abhishek from hitting the police inspector with the metal rod and thus has constituted abetment. The aforesaid exposition of law postulates the existence of one who did perpetrate the offence as laid down by Cross and Jones normally it is clear who is the perpetrator; perpetrator; he is the one with relevant mens rea, for example the one who fires the fatal shot in murder. Two or more people may also be joint perpetrators where each with the relevant mens rea does distinct acts which constitute a sufficient act for the actus reas offence. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the 35

person who has abetted.

3. ACTIVE STIMULATION IS ESSENTIAL FOR CAUSING ABETMENT.

A person is said to „instigate‟ another to an act, when he actively actively suggests of stimulates him to the act by any means of language, direct or indirect, whether it takes the form of express, 36

solicitation, or of hints, insinuation or encouragement. it is not necessary that express and direct words should be used to indicate what exactly should be done by the persons to whom directions 37

are given. Instigation is to „goad‟, urge forward, provoke, incite, or encourage doing an „act‟. To satisfy the requirements of instigation, though it is not necessary that actual words must be used to that effect or what constitutes „instigation‟ must necessarily and specifically be

33

Baxanto v. State of U.P. AIR 1965 All 120 : (1965) J CrLJ 267.

34

CROSS & JONES, Introduction to Criminal Law, 9 th Edn., p.389., para19.8.

35

State of Punjab v. Iqbal Singh, AIR 1991 SC 1532 Surender v. State of Haryana (2006) 12 SCC 375 Kishori Lal v. State of M.P., AIR 2007 SC 2457 and Sonti Rama Krishna v. Sonti Shanti Sree, AIR 2009 SC 923

36

Amiruddin, (1922) 24 Bom LR 534, 542.

37

Baby John v. State, 1953 CrLJ 1273 ; AIR 1953 Trav-co 251 : 1952 Ker LT 737



8

suggestive of the consequences. Yet a reasonable certainty to incite the consequences must be 38

capable of being spelt out.

Instigate means the active role played by a person with a view to stimulate another person to do the thing in order to hold a person guilty of abetting, it must be established that he had 39

intentionally done something which amounted to instigating another to do a thing. Instigation necessarily connotes come active suggestion or support of stimulation to the commission of the act itself. Advice amounts to the instigation only if it was meant actively to suggest or stimulate 40

the commission of an offence. In a case while one person was beaten by another, the accused, who was standing by, expressed his approval to the conduct of the assailant and the victim would be given sound beating. It was found that blows were inflicted after the accuser‟s remarks. It was held that the accused stimulated the commission of the offence and, therefore, was guilty for abetment. Instigation necessarily connotes some active suggestion or support or stimulation to the commission of the act itself.

41

A person is said to instigate another to an act, when he actively suggests or stimulates him to the act by any means or language, direct or indirect. The offence is complete as soon as the abettor has incited another to commit a crime, whether the latter consents or not or whether, having consented, he commits the crime or not. It depends upon the intention of the person who abets 42

and not upon the act which is actually done by the person whom he abets. Where, of several persons constituting an unlawful assembly, some only were armed with sticks and a, one of them was not so armed but picked up a stick and used it, b who gave a general order to beat, was held 43

guilty of abetting the assault made my them. It is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in the 38

Parimal Chaterjee,(1932) 60 Cal 327.

39

Rajib Neog v. State of Assam, 2011 CrLJ 399 (Gau).

40

Raghunath Dass, (1920) 5 PLJ 129

41

Nazir Ahmad v. Emperor, AIR 1927 All 730 : 28 CrLJ 313

42

Ramabatar Agarwalla v. State, 1983 CrLJ 122 (ori) : (1982) 54 Cut LT 345.

43

Queen v. Rasookoollah, (1869) 12 WR (Cr) 51.



9 44

pursuance of which the offence is committed. Where parties concert together and have a common object, the act of fun of the parties, done in furtherance of the common object and in 45

pursuance of the concerted plan, is the act of all.

Doing something with knowledge so as to facilitate in to commit the crime of otherwise would 46

constitute abetment. A person abets while aiding, when by act done either prior to, or at the time the commission of the act, he intends to facilities, and does in fact facilitate the commission therefore. Intentional aiding of the offence in covered by the third clause mentioned in section 47

107 Indian penal code. Intention to aid the commission of offence is the gist of offence of 48

abetment by aid. A person abets by aiding, when by the commission of an act, he intends to facilitate and thus facilitate the commission thereof.

49

The intention to aid the commission of

crime is gist of offence by of abetment by aid. In order to constitute abetment, the abettor must be shown to have „intentionally‟ aided to commission of the crime. Every abetment must, of course, precede the commission of the offence committed. There is, however a difference between an abetment which is done at the time of principal offence is committed or, so to say, on the spur of the moment and one, that is done prior to, and independently of, the commission of offence. 4. WHEN DOES ACTUALLY INSTIGATION AMOUNT TO ABETMENT.

If abetment is divided these two kinds, it follows that while abetment by instigation and abetment by intentionally aiding the offence can, both be done wither immediately before the commission of the offence or prior to it, abetment by conspiracy can hardly be committed at the time of the commission of the offence. In other words, one can commit an offence by instigation, either at the time of the commission of the offence or an hour, a day, a week, or a month before the 44

Expln. 5 to Section 108 ; Kali Munda (1901) 28 Cal 797.

45

The Queen v. Ameer Khan , (1871) 17 WR (Cr) 15.

46

State of M.P. v.Mukesh (2006) 13 SCC 197 : (2007) 2 SCC (Cn)680.

47

Om Prakash v. State of Haryana 2015 Haryana 2015 CrLJ 586 : (2015) 2 SCC 84.

48

Trilok Chand v. State of Delhi, Delhi , AIR 1977 SC 666: 1977 CrLJ 254 : (1975) 4 SCC 761.

49

Faguna Kanta Nath v. State of Assam, Assam, AIR 1959 SC 673 : 1959 CrLJ 917.



10

commission. Similarly, abetment by aiding can precede the commission of the offence immediately, or by an hour, a day, a week and so on. Abetment by conspiracy, however, 50

presupposes a deliberate and previous act on the part of the abettor. To prove abetment by „illegal omission‟, it is necessary to show that the accused intentionally aided the commission of 51

the offence by his noninterference, and the omissions involved a breach of legal obligation. The word illegal omission in connection with the definition of abetment has reference to an intention of „aiding the doing of a thing‟. To constitute abetment, a person must instruct any person to do a particular thing or he must engage himself with one or more persons in a conspiracy of doing that thing, he must intentionally aid by an act or illegally omit the doing of that thing. 5. THE ACCUSED AND THE CO-ACCUSED HAD COMMON INTENTION TO CAUSE DEATH OF THE DECEASED. 52

The criminal act mentioned in Indian penal code 1860 is the result of the concerted action of more than one person. Where the said result was reached in furtherance of the common intention, 53

each person is liable for the result as if he has done it himself.

It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof, each one played his assigned role by doing separate acts, similar or 54

diverse. for applying the said provision, it is not necessary to show some overt act on the part of the accused for the provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a part who act in furtherance of the common 55

intention of all or to prove exactly what part was taken by each of them. where it is established that the criminal act has been done by one of the accused persons in furtherance of the common intention, a liability may be imposed on anyone of the persons in the same manner as if the act 50

Sital v. Emperor , AIR 1935 Oudh 468 ; 36 CrLJ 1151.

51

Cooverji, Cooverji, (1906) 9 Bom LR 159, Khadim 159, Khadim Sheikh (1869) Sheikh (1869) 4 Beng LR (ACr J) 7.

52

53

Indian Penal Code 1860 1860 S.34 Shankarlal Kacharabhai v State of Gujarat AIR AIR 1965 SC 1260

54

Nandu Rastogi v State of Bihar (2002) (2002) 8 SCC 9.

55

Hari Ram v State of Uttar Pradesh (2004) Pradesh (2004) 8 SCC 146.



11 56

57

were done by him alone and each person will be alleged to have had committed the entire act . It is not necessary that the act done in furtherance of the common intention must be the very act intended by the accused. The common intention must be to commit the particular crime although the actual crime may be committed by any one of those sharing the common intention and acting in furtherance of the same.

58

Common intention is a state of mind of an accused which may be inferred objectively from his conduct displayed in the course of the commission of the crime as also prior and subsequent attendant circumstances. The subjective element in common intention, therefore, must be proved by an objective test. It is only then that one o ne accused may be made vicariously vic ariously liable for the acts 59

and deeds of the other co-accused.

Direct proof p roof for common intention will generally be

60

difficult to obtain. therefore, common intention may only be inferred from the proven facts of the case and the proven circumstances for which the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused to commit the offence for which they are charged with the aid of the provision of the Indian the Indian penal code 1860, be 1860, be it prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime.

61

The question of a common intention is a matter of fact in each case and has to be proved as a 62

63

necessary inference from the facts and circumstances of the case, acts and conduct of

56

State of Uttar Pradesh v Iftikhar Khan AIR Khan AIR 1973 SC 863

57

Matiullah Sheikh v State of West Bengal AIR AIR 1965 SC 132, Babu Ram v State of Uttar Pradesh AIR Pradesh AIR 2002 SC 2815, 58

Hardev Singh v State of Punjab AIR Punjab AIR 1975 SC 179

59

Rishideo Pande v State of Uttar Pradesh (1955) Pradesh (1955) Cr LJ 873.

60

State of Uttar Pradesh v Iftikhar Khan AIR Khan AIR 1973 SC 863.

61

Hari Ram v State of Uttar Pradesh (2004) Pradesh (2004) 8 SCC 146.

62

Mohan Singh v State of Punjab AIR Punjab AIR 1963 SC 174, ; 174, ; see also Mahbub also Mahbub Shah v Emperor AIR AIR 1945 PC 118

63

Baleshwar Rai v State of Bihar [1963] [1963] 2 SCR 433.



12 64

65

parties including conduct subsequent to the incident , other evidence given by prosecution witnesses, court witness, defence witness disclosing the existence of named or unnamed persons 66

67

other than those charged or deposed to by prosecution witnesses , nature of the weapons used , 68

69

manner of injuries inflicted or any other incriminating facts. The inference may be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made. 70

The crucial test is that such plan must precede the act constituting the offence. In the present case there was proper premeditation done for the purpose of constituting the death of the police inspector; all the accused met and shared the intention to kill the deceased, they searched for him on the internet as well as for the provisions regarding self defence so that they would know how to get away with the crime. Common intention must be anterior to the commission of the 71

offence

72

and necessarily implies a prearranged plan. To constitute common intention, it is 73

necessary that the intention of each of the accused is known to the rest and shared by them all.

In cases involving murder, one must look for a common intention, that is to say, some prior concert and what that common intention is. It must next be seen whether the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death, and if the circumstances are established and death is caused by

64

BN Srikantaiah v State of Mysore AIR Mysore AIR 1958 SC 672

65

Hari Om v State of Uttar Pradesh (1993) Pradesh (1993) Supp 2 SCC 1

66

Krishna Govind Patil v State of Maharashtra AIR Maharashtra AIR 1963 SC 1413

67

Dukhmochan Pandey v State of Bihar AIR AIR 1998 SC 40.

68

69

70

Yallappa v State of Karnataka (1994) Karnataka (1994) 1 SCC 730 Ramashish Yadav v State of Bihar AIR AIR 1999 SC 3830 Suresh v State of Uttar Pradesh AIR Pradesh AIR 2001 SC 1344

71

Joginder Singh v State of Haryana AIR Haryana AIR 1994 SC 461

72

Pandurang v State of Hyderabad AIR AIR 1955 SC 216.

73

Ankeri v State of Rajasthan AIR Rajasthan AIR 1994 SC 842, Shangara v State of Punjab (1994) Punjab (1994) Cr LJ 1098 (SC).



13

the intended injuries which are also sufficient in the ordinary course of nature to result in death, 74

each of the accused is guilty of committing murder.

C. WHETHER THE ACCUSED AND CO-ACCUSED OBSTRUCTED THE PUBLIC SERVANT WHILE HE WAS DISCHARGING HIS LAWFUL DUTIES.

It is humbly submitted before the Hon‟ble Hon‟ble court that the accused and the co – accused in the present matter obstructed the public servant from discharging his duties and thus are a re punishable under s.186 of IPC. This is a general section and provides for punishment for the offence of 75

„voluntarily‟ obstructing a public servant in the discharge of his public functions. Ingredients of the offence under this section are: (a) the obstruction to the public servant was done by the accused voluntarily, and (b) The obstruction was done in the discharge of the public functions. The use of the word „voluntarily‟ indicates „voluntarily‟ indicates that the legislature contemplated the commission of 76

some overt act of obstruction and did not intend to render penal more passive conduct, In other words „obstruction‟ denotes some overt act in the nature of violence or show of violence.

77

It

suffices if there is either a show of force or a threat of force, or preventing the execution of any 78

act by a public servant.

It must be shown that the obstruction or resistance was offered to a public servant in the 79

discharge of his duties or public functions as authorized by law. The accused in Santosh kumar Jain v. State, State, voluntarily obstructed a public servant at a time when he was acting in the course of his official duty, but it was contended that the officers had exceeded his official duty and that the act which was obstructed was not among his authorized functions and. However, on evidence

74

Anda v State of Rajasthan AIR Rajasthan AIR 1966 SC 148, Anda 148, Anda v State of Rajasthan (1966) Rajasthan (1966) Cr LJ 171.

75

Santosh Kumar Jain v. State, AIR 1951 SC 201

76

Q.E. v. Sommanna, 1827 ILR 15 Mdr. 221

77

Phudki v. Stae of Uttar Pradesh, AIR 1955 All 104.

78

Babulal, 1956 Bom LR 1021.

79

Odwil Devaki Amma v. State of Kerala, Kerala , 1982 Cr LJ 11 Ker (NOC)



14

in the case it was held that the accused had in fact obstructed the officer in carrying out the legal functions attached to his office and was accordingly convicted under this section. 1. PUBLIC SERVANT ACTING IN GOOD FAITH AND UNDER COLOR OF HIS OFFICE.

If the public servant is acting in good faith under color of his office there is no right of private 80

defense against such act. . Section 186 contemplates obstruction of a public servant in the 81

discharge of his public duty. Section 186 contemplates obstruction of a public servant in the discharge of his public duty. Every police-officer shall, for all purposes in this act contained, be considered to be always on duty, and may at any time be employed as a police-officer in any part 82

of the general police-district.

It shall be the duty of every police-officer promptly to obey and execute all orders and to communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect dete ct and bring offenders to justice and to apprehend apprehe nd all persons whom he is legally authorized to apprehend; and it shall be lawful for every police officer, for any of the 83

purposes mentioned in this section, to stop a person by creating public nuisance which was exactly what police inspector Amit Chaudhary was doing at the time when the accused hit him and caused his death. 2. VOLUNTARY OBSTRUCTION TO PUBLIC SERVANT

Whoever voluntarily obstructs any public servant in the discharge of his public functions shall be punished with imprisonment of either description for a term which may extend to three months, 84

or with fine which may extend to rs. 500,or with both. A person seriously obstructing, insulting and jostling a process-server in the execution of his duty is guilty of the offence under the above

80

Poomalai Udayan, (1898) Udayan, (1898) 21 Mad 296; Pukot 296; Pukot Kotu, (1896) 19 Mad 349.

81

82

Bhaga Mana, (1927) 30 Bom LR 1124. The Police Act, 1861

83

State of Karnataka v Jinappa Payappa Kudachi (1994) Supp 1 SCC 178, (1994) SCC (Cr) 330; Mubbi 330; Mubbi v St ate of Madhya Pradesh (1999) Pradesh (1999) SCC (Cr) 1314. 84

Indian Penal Code, 1860 S.186.



15 85

stated provision. Where public officer acts properly in carrying out orders which are not obviously or patently illegal or upon the face of them not open to objection, any resistance to the 86

same is an offence under this provision. The prosecution must show that a public servant was discharging public duties imposed upon him by law while prosecuting a person for the 87

obstruction of a public servant in the discharge of his public functions.

To constitute „obstruction‟, it is not necessary that there must be actual criminal force. Show or 88

threat of force or any act preventing execution of the process of civil court is sufficient. It is not open to a party to obstruct a public servant in the discharge of his duties even if the public 89

servant has been told by the party that he must not act as such.

85

Jatto v Emperor AIR 1915 Lah 456.

86

. Birdhi Chand Jaipuria v Darbari Jayaswal AIR 1932 Pat 276

87

Jamnadas Jamnadas Tharoomal v Emperor AIR 1940 Sind 42.

88

State v B G Misar AIR 1957 Bom 10.

89

S.Ram lah In Re AIR 1951 Mad 773.



o

PRAYER Wherefore, In Light Of The Issues Raised, Arguments Advanced And Authorities Cited, May This Hon„Ble Hon„Ble Court Be Pleased To:

1. A) Convict, Abhishek Lepat For The Manslaughter Of A Police Officer On Duty Charged Under Section 186, 304 Read With Section 34 Of The Indian Penal Code, 1860.

B) Convict, Angad Lepat For The Manslaughter Of A Police Officer On Duty Charged

Under Section 186,107, 304 Read With Section 34 Of The Indian Penal Code, 1860.

C)

Convict, Dushyant For The Manslaughter Of A Police Officer On Duty Charged

Under Section 107, 304 Read With Section 34 Of The Indian Penal Code, 1860.

2. Declare A Sentence Of Rigorous Imprisonment For All Three For A Term Which May Extend To Ten Years, And Also Be Liable To Fine, Under Section 304 Of The Indian Penal Code, 1860.

AND/OR

Pass Any Other Order It May Deem Fit, In The Interest Of Justice, Equity And Good Conscience.

Al l Of W hi ch I s M ost ost H umbly An d Res Respectful pectful ly Submitte Submitted d

Place:

Date:

S/D_____________

PUBLIC PROSECUTOR


Prosecution

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