MEMORANDUM FOR RESPONDENT

Team Code:

LATE SENIOR ADVOCATE S.R.(BABA) CHITNIS MEMORIAL MOOT COURT

COMPETITION, 2018

BEFORE THE HONOURABLE HIGH COURT OF BOMBAY

IN THE MATTER OF

Criminal Appeal No. /2018

1] BABURAO ....APPELLANT NO.1

2] SARJA ....APPELLANT NO.2
- Son of Baburao
3] BHURAO ....APPELLANT NO.3
-Brother of Baburao

Vs.

1] STATE OF MAHARASHTRA ....RESPONDENT

FOR OFFENCES CHARGED UNDER:

SECTION 302 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE HIGH COURT JUDGE

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

Table of Contents ...............................................................................................................

List of Abbreviation.............................................................................................................
List of authorities.................................................................................................................
Cases Referred.........................................................................................................
Book Referred........................................................................................................
Legal Databases.......................................................................................................
Lexicons....................................................................................................................
Legislations..............................................................................................................
Conventions.............................................................................................................
Statement of Jurisdiction....................................................................................................
Statements of Facts..............................................................................................................
Issues Presented...................................................................................................................
Summary Pleading..............................................................................................................
Detailed of Pleading............................................................................................................

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List of Abbreviation

AIR All India Report

Regd Registered
Edn/Ed. Edition
ER English Report
Anr Another
Ors Others
Etc Etcetera
Vol Volume
SC Supreme Court
HC High Court
Id. Ibid
Ltd Limited
Hon’ble Honourable
u/s Under Section
CA Criminal Appeal
Cr.L.J Criminal Law Journal
FIR First Information Report
IPC Indian Penal Code
Cr.P.C Criminal Proccedure Code

IEA Indian Evidence Act

SCC Supreme Court Cases
SCR Supreme Court Report

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INDEX OF AUTHORITIES

CASES REFERRED
1. A.P. Kuttan Panicker and Ors. v. State of Kerala, (1963) CriLJ669.

2. Aijaz Ahmad v. State of U.P., ¶ 10, 2004(2) ACR1596.

3. Bai Radha v. The State of Gujarat, AIR1970SC1396.

4. Chinnapattu Nagan v. State of A.P, 1999(2) ALT(CrI.)460(AP),

5. Emperor v. Mt. Dhirajia, AIR1940All486.

6. Gopal Anjayya Falmari and Ors. v. The State of Maharashtra, (1995)1BomCR116.

7. Hari Chunnilal v. State of Madhya Pradesh, 1977MPLJ321.

8. Kumbhar Narsi Bechar v. The State, AIR1962Guj77.

9. Mukanda and Ors. v. State, 1957CriLJ1187.

10. Nemichand Jain v. Supt. of Central Excise and Customs, (1963) 2 CriLJ

11. Ram Lal v. State of H.P., 2005(3) ShimLC67.

12. Ravindra Pyarelal Bidlan and other v. State of Maharashtra, 1993 CriLJ3019 (Bom).

13. State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274.

14. State of Madhya Pradesh v. Ram Prasad, AIR1968SC881.

15. State of Rajasthan v. Dhool Singh, AIR2004SC1264.

16. State v. Madhusudan Rao M (2008) 15 SCC 604.

List of Books Referred

1] Ratanlal & Dhirajlal, the Indian Penal Code, (lexis Nexis Butterworth Wadhwa Nagpur
32nd Enlarged Edition, 2010)

2] PSA Pillai Criminal Law, (lexis Nexis Butterworth Wadhwa Nagpur, 10th edition, 2008)

3] K.D.Gaur, Textbook on the Indian Penal Code, (Universal Law Publication Company, 7th
Edition, 2013)

4] Dr. Hari Singh Gour, Penal Code, (Law Publishers Pvt.Ltd, Vol.1&2)

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5] Kenny Outlines of Criminal Law. (Cambridge University Press, Cambridge, 19th edition
1966)

6] Criminal Major Act (Criminal manual). Niranjan Maitra Current’s Publications 2010

LEGAL DATABASES REFERRED

1. Manupatra Online Resources, http://www.manupatra.com.
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. SCC Online, http://www.scconline.co.in.
4. Oxford Dictionary, http://www.oxforddictionaries.com
5. Supreme Court of India, http://supremecourtofindia.nic.in/
6. West Law, http://www.westlawindia.co
7. Hein Online, http://home.heinonline.org/

LEXICONS
1] Law Dictionary Hind Law House 2015 Bhange’s Publication 1st Ed. 1992’ Reprint 2015.
2] Garner, Black’s Law Dictionary, (9th Ed. Thomus & West, U.S.A 1990).

LEGISLATIONS
1] The Indian Penal Code (45 of 1860)

2] The Criminal Procedure Code, 1973

3] The Indian Evidence Act, 1872

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STATEMENT OF JURISDICTION

The Appellant has filed an appeal to the Hon'ble High court of Bombay, To review the
judgment passed by the session judge.

The hon'ble high court has the jurisdiction to hear the matter under section 374(2) of the
criminal procedure code 1973.

Section 374 appeal from conviction

(2) Any person convicted on a trail held by a session judge or a additional session judge or on
a trail held by any court in which a sentence of imprisonment for more than seven years has
been passed against him or against any person convicted at the same trail , any appeal to the
high court.
As per Criminal Procedure Code 1973 u/s 26 of Chapter III , provided Power of Courts to
tried the criminal matters.

Section 26 Courts by which offences are triable – subject to the other provisions of this code-

(a) any offence under the Indian Penal Code(45 of 1860) may be tried by-
(i) the High Court or
(ii)the court of session, or
(iii)any other court by which such offence is shown in the First Schedule to be triable.

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STATEMENT OF FACTS

1. Baburao (Appellant No. 1), an elderly farmer lived with his family consisting of his wife
(Sumitra), son Sarja (appellant No. 2), daughter Sonali and brother Bhaurao (Appellant No.
3)
2. Vilas, a boy who lived in the same village was in love with Sonali. Baburao did not like
Sonali’s closeness to Vilas and had publicly warned both Vilas and Sonali to stay away from
each other. On several occasions he publicly scolded Sonali and asked her to refrain from
meeting Vilas.
3. Bhaurao had borrowedRs. 10,000/- from Vilas and though he had promised to pay him
immediately, he kept asking Vilas for time to repay the Rs. 10,000/-.
4. On 12th June 2016, Bhaurao invited Vilas to collectRs. 10,000/-. Vilas reachedBaburao’s
house around 8:30 pm, when the family had just finished their dinner. He saw Sonali from
the window and signaled her to come into the backyard. Baburao, Bhauraoand Sarja on
hearing whispers from the backyard went unarmed to investigate the matter. On seeing Vilas
and Sonali together,Baburaolost his temper, asked Sonali to return to the house and started
abusing Vilas. Vilas replied back and there was a heated argument between them. During the
course of the argument, Sarja went into the house and brought Baburao’s walking stick and
gave blows with the walking stick on the leg of Vilas. Bhaurao grabbed the walking stick and
started beating Vilas and gave blows on Vilas’shead and chest.
5. Vilas was taken to the civil hospital by the villagers, where he died four days later. The
Post-mortem report confirmed that Vilas haddied due to injuries suffered by him on his head
and due to fracture of two ribs. However, none of the injuries independently were sufficient
to causeVilas’s death while they cumulatively were sufficient in the ordinary course of nature,
to cause his death.
6. The First Information Report was registered under section 307 r/w section 34 of the Indian
Penal Code 1860, and after the death of Vilas, the charges were altered to section 302 r/w
Section 34 Indian Penal Code, 1860.
7. The Sessions Court convicted the three Appellants under section 302 r/w section 34 &
sentenced them to life imprisonment for having committed the murder of Vilas.
8. Aggrieved and dissatisfied by the judgment of conviction passed by the learned Trial
Judge, the Appellants have preferred the present appeal.

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STATEMENT OF ISSUES

A. Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal
Code, 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?

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SUMMARY OF ARGUMENTS

1] Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal
Code, 1860?

It is humbly submitted before this Hon’ble Court that the accused is guilty of murder as he
had committed an act of murder with many witnesses to the actus reus. The accused had the
requisite mens rea to commit said crime, and he even had a motive to carry out said act. The
Appellant no.1 gave blows with the walking stick on the leg of deceased and Appellant No.3
grabbed the walking stick and starting beating to deceased and gave blows on head and chest
of deceased, thus showing it was indeed an execution and not an act of self defence or an
accident. Hence it is proven beyond a reasonable doubt that the crime of Murder was indeed
committed by the accused in the case at hand.
2] Whether the nature of injuries and the nature of the weapon, was such as to cause
death of a person?
Council for respondent humbly submitted that the nature of weapon and nature of injure is
such as cause death of a person. Humans have used weapons in warfare, hunting, self-
defense, law enforcement, and criminal activity for thousands of years. Weapons also serve
many other purposes in society including use in sports, collections for display, and historical
displays and demonstrations. As technology has developed throughout history, weapons have
changed with it.
3] Whether the act of the deceased amounted to grave and sudden provocation?
The Council on behalf of the respondent humbly submitted that the act done by the deceased
vilas should not amount to grave and sudden provocation.
The act was not under the come of exception of sec. 300 and such act was pre plain to
injure vilas as like to cause death
4] Whether the Sessions Court was justified in sentencing the Appellants with life
imprisonment in connection with the act committed by them?
If the criminal act is done in furtherance of common intention, each person is liable for the
result of such act. Once it is prove that the criminal act was done in furtherance of common
intention of all, each person is liable for the criminal act as if it were done by him alone1.

1 Shyamal Ghosh v State of West Bengal 2012 (6) SCALE 381

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DETAILED PLEADINGS
1] Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal
Code, 1860?

1.1] The counsels on behalf of the respondents humbly submits that the order passed by the
Sessions Court of sentencing the accused for imprisonment for life for his offence committed
under section 300 and punishable under section 302 of IPC is appropriate.
1.2] The conditions of section 300 of IPC have been satisfied
The accused has committed the offence of murder because act done by him falls under the
definition of Murder as defined in Section 3002 of IPC. The present case comes under the 4th ,
2nd&3rd clause of the said section. Clause 4 of the Section talks about a person committing any
act and knowing that the act thus committed is so imminently dangerous that it will in all
probability cause death or bodily injury as is likely to cause death and that person commits the
act without any excuse for incurring the risk of causing death or such injury aforesaid.3
1.2.1] The essential ingredients of this clause are4 –
(a) The act must be imminently dangerous,
(b) The person committing the act must have knowledge that it is so imminently
dangerous, As per the Oxford Dictionary, the word knowledge means: ‘Acquaintance with
a fact, perception, or certain information of a fact matter; state of being award or informed;
consciousness (of anything).’5
For practical and legal purposes, ‘knowledge’ means the state of mind entertained by a
person with regard to existing facts which he has himself observed, or the existence of
which has been communicated to him by persons whose veracity he has no reason to
doubt.6
(c) That in all probability it will cause– either Death or Bodily injury as is likely to cause
death and;
(d) Such imminently dangerous act should be done without any reason or justification
for running the risk of causing death or such injury.

2 Supra Note 7
3 Ibid, clause 4.
4 K I VIBHUTE, PSA PILLAI’S CRIMINAL LAW, LEXIS NEXIS PUBLICATION, P-582
5 Justice C.K.Thakker, ‘Encyclopaedic Law Lexicon’, Volume II, Edn.2010, ASHOKA LAW HOUSE, p-2568
6 Ibid

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1.2.2] This present act of the accused blow on the head and chest by the stick shows that the
person had the knowledge that the act is so imminently dangerous that in all probability it will
cause death.7 The accused invited the deceased on the date of 12th June 2016 to collect
Rs.10,000/ which is appellant no3 borrowed from the deceased. Accused invited deceased
around a 8.30 pm on the house of Appellant no1when the all family had just finish their dinner
. At that time deceased and daughter of appellant no.1 go to the backyard to the house and
they talk to each others. The appellant no1 did not like his daughters closeness to deceased
thats why the accused has angry and cruel intention towards the deceased. On 12th June 2016
there is accused clearly intention that to call deceased on around 8.30pm at Appellants no 1
house for the purpose for giving 10,000/- which was give by the Appellant no3. As per this
situation clearly denoted that it’s a pre mind plane to call him and harm full bodily injury to
deceased as like to death. Now the council for respondent submitted that such a pre mind plan
was fulfils the condition of the Clause 2,3& 4 of Section 300 of IPC and brings the act of the
accused under the definition of Murder.
1.2.3] Held since no special knowledge is needed to know that one may cause death by
blowing stick on the head and chest of a person it is obvious that the accused must have
known that he was running the risk of causing the death of the victim or such bodily injury as
was likely to cause her death. As he had no excuse for incurring that risk, the offence must be
taken to fall within 4th clause of section 300, Penal Code. In in other words, his offence was
culpable homicide amounting to murder even if he did not intend causing the death. He
committed an act so imminently dangerous that it was in all probability likely to cause death
or to result in an injury that was likely to cause death.8
1.2.4] In the case of State of M.P. v. Ram Prasad the Hon’ble Supreme Court held that this
was the case where it was difficult to find the intention of the accused. But then the Supreme
Court observed that in respect of the clause 1-3 of Section 300 of IPC, the question would rise
as what was the intention of the accused, the nature of injuries he intended to cause etc. Then
the Supreme Court opined that it would be simpler to place reliance on Clause 4 because it
contemplates only ‘knowledge’ and no intention. In this case, when the accused blowing by
stick on head or chest of deceased, he must have known that the act would result in her death.9
This knowledge is sufficient to bring the act of the accused under the Clause 4, Section 300.

7 Supra Note 9
8 State of M.P. v. Ram Prasad AIR 1968 SC 881
9 AIR 1968 SC 881

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In matter of Pillu Prahlad V. State of Madhya Pradesh, Appellants have preferred appeal
challenging their conviction and order of sentence passed by Additional Sessions judge.
Appellants have been convicted under Sec.302/34 of ipc for committing murder and
sentenced to life imprisonment with fine of Rs.3,000/- each, in default rigorous imprisonment
for six months, by the impugned judgment. In view of the forgoing discussion, and the
evidence available on record against both the appellants, the High court of Madhya Pradesh
considered opinion, that the trial court rightly convicted the appellants under Sec.302/34 of I.
P. C and Appeal fails and is dismissed.9 The Council for respondent submitted that at present
matter the appeal challenged u/s 302 r/w34 of ipc is not correct and such appeal is viod ab
intio. Because As the accused had the knowledge that doing this act is imminently dangerous
and it will lead to either the death or such bodily injuries which may lead to death of the
victim then it sufficiently fits in the scene and provides a ground to convict the accused.
1.2.5]The High Court of Karnataka In Matter of Saibanna Tippanna And Ors. vs Unknown
on 2 March, 1965 under in this case Accused 1, 2, 3 and 6 who were convicted by the
Sessions Judge of Gulbarga of an offence of lurking house trespass punishable under Section
457, and, of an offence of murder punishable under Section 302 read with Section 34 of the
Penal Code, and, who were sentenced to rigorous imprisonment for a period of four years for
the first offence and to imprisonment for life for the second, are the appellants before us. In
this case the witness clearly of the opinion that all the injuries were ante-mortem injuries and
that the lacerated wounds must have been caused by blunt weapons such as the butt end of an
axe or sticks, and that the incised injury might have been caused by a sharp weapon like
sword or dagger. According to him the injuries which were on the face were sufficient in the
ordinary' course of nature to cause death .As per the High Court of Karnataka the sessions
Judge was right in concluding that Deceased was killed by accused 1 to 3 and 6 in
furtherance of the intention of all of them and that they were therefore, guilty of the offence
punishable under Section 302 read with Section 34 of the Penal Code & appeal was
dismissed. Hence council for respondent submitted that in present matter there is blow on
head and chest by the stick is suitable weapon used for injury to human body as like to death
and appellant has prosecuted u/s302 r/w34 of the Indian Penal Code 1860.

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In another case Murugan vs State in that case, “The charge against the accused is that due to
family dispute, with the common intention to murder the deceased Krishnan, on 30.1.2001 at
7.00 p.m. at Karamalaikadu Kanjalam, near the house of Krishnan, the accused 2 and 3 beat
Krishnan on his head with sticks, the first accused slapped him on his left cheek and the 4th
accused kicked him with leg and caused grievous injuries as a result of which the deceased
died in hospital next day at 12.30 p.m. and thereby, committed the offence punishable under
Section 302 read with 34 I.P.C. Thus madras high court state that its was covered under the
section 300 and punishable u/s 302 read with sec34. In the case Mohmed Amanat Mohmed
Hasim Ansari Vs. State of Maharashtra mention that in view of the nature of weapon, i.e.,
stick and the blow given on the head, it could be inferred that he had intention of causing
such bodily injury as was likely to cause death and its come amounting to murder.

Hence the council for respondent submitted here that such act which is blow on head and
chest of deceased is come under the section 300 and prosecuted under sec 302 r/w 34. Such
punishment given by the session judge is correct because accused has clearly intention of
injure the body as like to death and he knows that such a act was bodily injure some one and
it amounting to death as well. In the case of State of M.P. v. Ram Prasad the Hon’ble
Supreme Court opined that it would be simpler to place reliance on Clause 4 of section 300
because it contemplates only ‘knowledge’ and no intention in present case the accused has
knowledge that blow by stick on head is cause to death.

1.3] If there was no intention to kill, then it can be murder–

If there was no intention to kill, then it can be murder only if –

a) The accused knew that the injury inflicted would be likely to cause death or
b) That it would be sufficient in the ordinary course of nature to cause death or
c) That the accused knew that the act must in all probability cause death.10
1.3.1]In this case the accused had intention to kill as well as accused knew that the act
must in all probability cause death, so he doesn’t have any chance to run from his
liability. Both knowledge and intention can be seen here in the mind of accused by the act
he has done.

1.3.1]In order to hold a person responsible for having caused the death, it is not necessary
that his act should be the immediate cause of death, in the medical sense. If accused has

10Willie (William) Slaney v. The State of Madhya Pradesh, AIR1956SC116.

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caused injuries then he is liable for murder.11 And in the present case the accused had caused
sufficient injuries to hold him responsible for the act.
Intention of Accused
a)“In the present analysis of the mental element in crime, the word ‘intention’ is used to
denote the mental attitude of a man who has resolved to bring about certain result if he can
possibly do so. He shapes his line of conduct so as to achieve a particular end at which he
aims.” 12
On 12/06/2016, there were only 5 people present in the house, Baburao(Appellant No
1),Sumitra (wife of Appellant no1), Son Sarja (Appellant No 2) , Daughter sonali and Brother
Bhaurao (Appelant No.3). At around 8.30pm Appellant No 3 call deceased at house of
Appellant No 1 for collecting Rs.10,000/- which is taken by Appellant No 3 from deceased
few days back. The admitted facts here are that the appellant and the deceased were not
having good relations and they often quarreled with each other because Appellant No 1 did
not like deceased closeness with his daughter. This clearly shows that as the Appellant was
not happy with the relations between vilas and sonali. On 12 june 2016 which was happened
it is like pre plan because vilas has call on the house of Appellant No1 that time the appellant
No 3 also present in the house and appellant no 3 is brother of appellant no 1 than all accused
are cause injury to the diseased with the common intention. The deceased was mercilessly
given blows on his head and chest and on hearing the hue and cry, villagers came to the scene
who were the witnesses and found Bhaurao giving blows to Vilas while the other two were
shouting abuses on Vilas. Vilas was bleeding from the head and became unconscious. So the
present circumstances clearly show that the act of killing her has been commissioned by the
accused.
1.2.2] Actus Reus of Accused –
Actus Reus means a ‘wrongful act’ and is a legal maxim.13
The term may be so defined as to include accts of omission as well as acts of commission, and
a person may incur criminal liability for failing to do that which the law enjoins as much as by
doing that which the law proscribes.14
The admitted facts here are that the appellant and the deceased were not having good
relations and Bhaurao had no means to repay his debt for which he always showed
11 Kumbhar Narsi Bechar v. The State, AIR1962Guj77.
12 Russell on Crime (12th Edition at page 41) mentioned in Justice C.K.Thakker’s, Encyclopaedic Law Lexicon,
Volume II, Edn.2010, p-2381
13 Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141
14 Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141. See Halsbury’s Laws of
England, 4th Ed., Vol.11, p-13.

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helplessness. On the other hand, Vilas was in love with Sonali and used to meet Sonali
on the weekends when her father was not at home on the pretext that he had come to
collect the money. Baburao did not like it and told Vilas many a times not to meet to
sonali. He also scolded his daughter for meeting Vilas but Vilas did not stop visiting
Sonali. The accused were already fed up with the regular tense atmosphere and more
annoyed by seeing Vilas talking to Sonali in the backyard of their house. Baburao lost
his temper and started abusing Vilas. Sarja brought a lathi/Stick from inside and gave
a blow to Vilas on the leg. Then Bhaurao grabbed the lathi/Stick from Sarja and
started beating Vilas mercilessly giving blows on his head and chest. On hearing the
hue and cry, other villagers came to the scene. They found Bhaurao giving blows to
Vilas while the other two were shouting abuses on Vilas. Vilas was bleeding from the
head and became unconscious. He was taken to the hospital by the villagers where he
died four days later without regaining consciousness.
In the instant case, the accused persons had the knowledge that fiving blows on head and
chest would lead to Vilas’s death as a consequence of his imminently dangerous act and he
still committed the act. The accused would be liable for the offence of murder though there
was not pre-meditation of the act. So the act of murder would be punishable under the section
of 302 15of IPC. The post-mortem report confirmed that Vilas suffered injuries on the head
and fractures of three ribs. There were many concussions on different parts of his body. There
was much loss of blood. While none of the injuries independently was sufficient to cause
death, the cumulative result was sufficient in the ordinary course of nature to cause death.
This proves that accused persons have committed the offence of the Murder.
For the act done by the accused he must be punished. The act committed by the accused
persons comes under the Section 30216 of Indian Penal Code. The said section prescribes the
punishment for murder. In the present case, accused has committed the murder of Vilas (as
proved above) and for this they are liable under Section 302. In the Section 302 the
punishment prescribed is either death sentence or life imprisonment. Here, as the case doesn’t
fall under the purview of rarest of the rare
case, so death penalty cannot be imposed, hence the option left is life imprisonment.17Life
imprisonment to the accused is completely justified if we go as per the grounds mentioned
above.

15Supra note 13.

16 Supra Note 5
17 Supra Note 8, p-84

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2] Whether the nature of injuries and the nature of weapon, was such as to cause death
of a person ?
The Council on behalf of the respondent submitted here that the nature of injuries and
nature of weapon is cause injury as like to death and accused has punishable under sec 302
read with section 34.

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2.1] Historical background of weapon –

Council submitted here the definition of weapon and murder as under-
-Murder-
The crime of unlawfully killing a person especially with malice a forethought, something
very difficult or dangerous, something outrageous or blameworthy, to kill (a human being)
unlawfully and with premeditated malice, to slaughterwantonly : slay to put an end.
-Weapon-
Something ( such as a club, knife, or gun) used to injure, defeat, or destroy, a mean of
contending against another.
Historical background of weapon –

Humans have used weapons in warfare, hunting, self-defense, law enforcement, and criminal
activity for thousands of years. Weapons also serve many other purposes in society including
use in sports, collections for display, and historical displays and demonstrations. As
technology has developed throughout history, weapons have changed with it.

Major innovations in the history of weapons have included the adoption of different
materials – from stone and wood to different metals, and modern synthetic materials such as
plastics – and the developments of different weapon styles either to fit the terrain or to
support or counteract different battlefield tactics and defensive equipment.

2.1.1] Stick as a weapon –

The singlestick itself is a slender, round wooden rod, traditionally of ash, with a basket
hilt. Singlesticks are typically around 36 inches (91 cm) in length and 1 inch (2.5 cm) in
diameter and thicker at one end than the other. It bears approximately the same relationship to
the backsword as the foil to the small sword in being a sporting version of the weapon for
safe practice.The original form of the singlestick was the waster, which appeared in the 16th
century and was merely a wooden sword used in practice for the backsword, and of the same
general shape. By the first quarter of the 17th century wasters had become simple clubs
known as cudgels with the addition of a sword guard. When the basket hilt came into general
use about twenty five years later, a wicker one was added to the singlestick, replacing the
heavy metal hilt of the backsword.

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By the turn of the 19th century, the target area had been restricted to the upper body (with the
exception of the back of the head) and the upper part of the forward leg. As per the history the
under the fight of stick the rule is that there is not allowed the fight on the part of head and
chest of body because its a cause death of the person. Than in present case the stick was used
for the injure as like to death is punishable under sec 302 and stick is come under the blunt
weapon.

2.1.2] In the case of Gundya Yellappa Arote And Others Vs. State of Maharashtra under this
case the stick recover under as a weapon and weapon was sized under the punchnama. In
another case State of Gujarat Vs. Bharwad Jakshibhai Nagribhai And Others stick as
defined deadly weapon and court held that when the weapon was used as like to death it is
come under the preview of sec 300. There is another case Bhanu and others vs. State of
Madhya Pradesh in this case Gathered more than five persons arm with firearm, betel axe
and sticks itself is sufficient to infer that the persons have gathered with definite object and
their object was to kill the person by use of firearm and other dangerous weapons. In case of
assault by firearm dangerous weapons betel axe and sticks, it would be possible for the
person who is also received injury or whose husband/relatives are receiving injury and
ultimately they died to describe the details of injury, details of weapons used and part of the
body effected. Than high court of chattisghra held that the weapon which is used i.e stick it
was harmful to the human body than it is come under the sec 300.

2.2] The weapon used i.e stick is injure as like to Death-

The council on behalf of the respondent side the situation in which sarja went inside the
house and brought stick is a certain kind of weapon this act can’t be seen under Culpable
homicide . As in culpable homicide or in certain provocation or anger the tree Appellant may
used there arms and fest or kick the deceased but in this situation the appellant beat the Vilas
with stick.
Your hordship the permission of stick is only given to the police and only police can do lathi
charge with senior permission excluding police and security personals no other individual cas
used stick for fight . Council also like to mentioned that if the arguments aginst the appellant
is of sudden provocation and anger . The Applicant no 2 Sraja might also bring ans Axe or
Knife if he want gate stick at that particular movement or particular situation
Henceforth it is humbly request to the court not to differentiate between stick and other
sharp weapon like Knife as both are household instruments

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 MEMORANDUM FOR RESPONDENT

Anger and sudden Provocation

Council on behalf of the respondent submitted that anger and sudden provocation is the nature
of human Minds in this case the anger and sudden provocation is barely seen. If the three
applicants where under the phase of anger and sudden provocation. They would have harmed
the vilas with any other object they would gate in their hand in first instinct .
But in this situation there was distance between the sarja and stick this situation can’t be
counted with section 299 exception IV . If the situation happened in backyard of house and if
sarja would beat the Vilas with the stick as the instrument first found to Sarja the situation
would be U/s 299 of IPC but after seeking the Vilas and Sonali together and after certain talk
Sarja went inside house to find certain weapon which he got the stick and the applicant killed
the vilas Hence it is holy planed murder which is guaranteed under Sec.300
Post- Mortem Report
Council here submitted that the post mortem report by medical examination confirmed that
Vilas had died due to injuries suffered by him on his head and due to fracture of two ribs. The
injure sustained to vilas on head and chest due to collectively blow on his leg, head and chest
by the stick and continue to beat to Vilas. Than council for respondent submitted here that the
collectively beating to vilas is cause to death is sufficient in nature.

3] Whether the act of the deceased amounted to grave and sudden provocation?
The Council on behalf of the respondent humbly submitted that the act done by the deceased
vilas should not amount to grave and sudden provocation.

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 MEMORANDUM FOR RESPONDENT

Baburao the father of sonali had taken wrong meaning regarding the relation between the
girl sonali and vilas even though it has been mention in the facts that father baburao had
many time scolded sonali & vilas of meeting each other but your lordship sonali & vilas
never been caught in such situation (Physical) except of talking with each other. And on the
other side it should also been taken under consideration that the baburao had invited vilas at
that place vilas has himself not gone to sonali house and the mentality of the vilas might be
like to meet Sonali at last before taking mony hence he might have decided to call her
backyard and condition to call her in front of here father brother & uncle can defiantly cause
anger.
3.1] Grave and sudden provocation-
“Provocation is some act or series of acts done by the dead man to the accused which would
cause in any reasonable person and actually causes in the accused a sudden and temporary
loss of self-control rendering the accused so subject to passion as to make him or her for the
moment not master of his mind” It is well established principle of law that every act or
conduct which is excused in the name of grave and sudden provocation is not consider as
mitigating factor to criminal liability. The substantive provisions of the Indian Penal Code
defines the particular circumstances when the plea of the grave and sudden provocation is
exist but not in all other cases
The criminal law is based on the idea that every culprit is punished according to his guilt. So
for as the every act which is against or contrary to laws must punishable under law.
In the facts of the case the vilas call on the house of baburao how is father of sonli and no
about the relation between vilas and sonali and its is clearly premeditation or preplain to
make injure to vilas and completely remove on his daughters life.
3.2] Exceptions of the Section 300 of Indian Penal Code:
• Provocation;
• Exceeding right of private defence;
• Public servant exceeding his powers;
• Sudden fight;
• Consent.

As we seen the exception of Section 300 it was not applicable in the present case because as
we seen the fact there is clearly denoted it is pre play plain to cause death of vilas.

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 MEMORANDUM FOR RESPONDENT

Section 299 defines culpable homicide as the act of causing death;

(i) with the intention of causing death or
(ii) with the intention of causing such bodily injury as is likely to cause death or
(iii) with the knowledge that such act is likely to cause death.
Section 300 IPC further provides for the exceptions which will constitute culpable homicide
not amounting to murder and punishable under Section 304. When and if there is intent and
knowledge then the same would be a case of Section 304 Part I and if it is only a case of
knowledge and not the intention to cause murder and bodily injury, then the same would be a
case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and
an act not amounting to murder has been brought out in the numerous decisions of this Court.

In Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175 It is noteworthy that the
"intention to cause death" is not an essential requirement of clause (2). Only the
intention of causing the bodily injury coupled with the offender's knowledge of the
likelihood of such injury causing the death of the particular victim, is sufficient to bring
the killing within the ambit of this clause. This aspect of clause (2) is borne out by
Illustration (b) appended to Section 300.

4] Whether the Sessions court was justified in sentencing the Appellants with Life
Imprisonment in Connection with the act committed by them?

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 MEMORANDUM FOR RESPONDENT

The Council for the respondent most humbly submitted that session court was justified in
the correct sense. Whichever punishment was given as per section 302 r/w 34 is the correct in
nature. It is most humbly submitted that Co-Accused shared a common intention to murder
Vilas. It was Baburao lost his temper and started abusing Vilas. Sarja brought a lathi/Stick
from inside and gave a blow to Vilas on the leg. Also, Bhaurao grabbed the lathi from Sarja
and started beating Vilas mercilessly giving blows on his head and chest. On hearing the hue
and cry, other villagers came to the scene. They found Bhaurao giving blows to Vilas while
the other two were shouting abuses on Vilas.18
4.1]The Supreme Court while dealing with the question of conviction under Section 307
along with Section 34 in the matter of Girija Shankar v. State of U.P.19 held that:
“Section 34 has been enacted on the principle of joint liability in the doing of a criminal act.
The Section is only a rule of evidence and does not create a substantive offence. The
distinctive feature of the Section is the element of participation in action. The liability of one
person for an offence committed by another in the course of criminal act perpetrated by
several persons arises under Section 34 if such criminal act is done in furtherance of a
common intention of the persons who join in committing the crime. Direct proof of common
intention is seldom available and, therefore such intention can only be inferred from the
circumstances appearing from the proved facts of the case and the proved circumstances. In
order to bring home the charge of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the
accused persons to commit the offence for which they are charged with the aid of Section 34,
be it pre-arranged or on the spur of moment; but it must necessarily be before the
commission of the crime. The true concept of Section is that if two or more persons
intentionally do an act jointly, the position in law is just the same as if each of them has done
it individually by himself.”
4.2] Further in the matter of Ashok Kumar v. State of Punjab,20 it was observed that “the
existence of a common intention amongst the participants in a crime is the essential element
for application of this Section. It is not necessary that the acts of the several persons charged
with commission of an offence jointly must be the same or identically similar. The acts may
be different in character, but must have been actuated by one and the same common intention
in order to attract the provision.”

18 Factsheet ¶ 7& 8.
19 Girija Shankar v. State of U.P. (2004)3SCC793.
20 Ashok Kumar v. State of Punjab 1977 CriLJ 164.

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 MEMORANDUM FOR RESPONDENT

It was further observed by the Court in the matter of Girija Shankar21: “The Section does
not say "the common intention of all", nor does it say "and intention common to all". Under
the provisions of Section 34 the essence of the liability is to be found in the existence of a
common intention animating the accused leading to the doing of a criminal act in
furtherance of such intention. As a result of the application of principles enunciated in
Section 34, when an accused is convicted under Section 302 read with Section 34, in law it
means that the accused is liable for the act which caused death of the deceased in the same
manner as if it was done by him alone. The provision is intended to meet a case in which it
may be difficult to distinguish between acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what part was taken by each of
them.”
4.3] In the matter of Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh22, it was held that:
“Section 34 is applicable even if no injury has been caused by the particular accused
himself. For applying Section 34 it is not necessary to show some overt act on the part of the
accused.”
It is submitted that the common intention or plan may be proved either from conduct,
circumstances or from incriminating facts.23
It is submitted it can be inferred from the instant facts that the co-accused had the common
intention as Vilas was invited by Bhaurao to their house and in the presence of Baburao, on a
weekday. Moreover, the factsheet provides that they saw Vilas talking with Naina. Baburao
lost his temper and started abusing Vilas. Sarja brought a lathi/Stick from inside and gave a
blow to Vilas on the leg. Then Bhaurao grabbed the lathi from Gajendar Shah and started
beating Vilas mercilessly giving blows on his head and chest.24
In light of the above, it can be rightly construed that Co-accused had the common intention
to kill and cause grievous hurt to Vilas as all the ingredients required under Section 34 are
satisfied. It is humbly submitted that Accused persons are liable to be convicted under
Section 34 read along with Section 302 of the Indian Penal Code.
PRAYER

21 Girija Shankar v. State of U.P. (2004) 3 SCC 793 .

22 Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh 1993 CriLJ 2246.
23 Krishnan v. State AIR 2003 SC 2978: (2003) 7 SCC 56; Gopi Nath v. State of U.P. AIR 2001 SC 2493:
(2001) 6 SCC 620.
24 Factsheet ¶ 7.

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 MEMORANDUM FOR RESPONDENT

In light of the facts presented, issues raised, arguments advanced and authorities cited
the Counsel for the Appellants humbly pray before this Hon’ble Court that it may be
pleased:

1. To declare that the Judgment given by the Sessions Court is appropriate;

2. To declare that the Appellants have been rightly convicted for the offence punishable
under Section 302 of Indian Penal Code;

3. To convict the accused for the offence punishable under Section 34 of Indian Penal
Code along with Section 302 of Indian Penal Code;

Or pass any other order or make directions as the Hon’ble Court may deem fit to meet the
interest of justice, equity and good conscience in the instant case.

And for this act of kindness, the Respondent shall duty bound forever pray.

Respectfully Submitted on Behalf of the Respondent.

Sd/-

(COUNSELS FOR RESPONDENT)

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