1

TEAM NO. 2

V.R.KRISHNAN EZHUTHACHAN LAW COLLEGE, ELEVENCHERY

10TH SEMESTER INTRA-CLASS MOOT COURT

IN THE HON’BLE COURT OF V.R.KRISHNAN EZHUTHACHAN LAW

COLLEGE, ELEVENCHERY
UNDER ARTICLE 132 AND 134 OF THE CONSTITUTION OF INDIA,1950

THE STATE (APPELLANT)

V.

RAMESH (RESPONDENT)

ON SUBMISSION TO THE REGISTER OF THE COURT OF

V.R.KRISHNAN EZHUTHACHAN LAW COLLEGE, ELEVENCHERY
By,
Mridhula.G.Nair
Roll No.11, 10/10 B.B.A., LL.B (Hons)(2015-2020)
Sonu.N.V
Roll No.17, 10/10 B.B.A., LL.B (Hons)(2015-2020)

MEMORIAL ON BEHALF OF THE RESPONDENTS

 2

TABLE OF CONTENTS

SL CONTENT PGE NO.

NO.
1 LIST OF ABBREVIATIONS 3

2 INDEX OF AUTHORITIES 4-5

2.1  LEGISLATION 4
2.2  CASES REFERRED 4
2.3  BOOKS REFFERED 5
2.4  LEGAL DATABASES 5
2.5  IMPORTANT DEFINITIONS 5
3 STATEMENT OF JURISDICTION 6
4 STATEMENT OF FACTS 7-8
5 QUESTIONS PRESENTED 9
6 SUMMARY OF PLEADINGS 10
7 PLEADINGS 11-21
i) WHETHER THERE EXIST COMMON INTENTION 11-13
BETWEEN ACCUSED RAMESH AND MAHESH
AS PER THE SECTION 34 OF IPC 1860?

ii) WHETHER THE VICTIM IS ENTITILED TO GET 14

MORE COMPENSATION MORE THAN SHE
ACTUALLY GET?

iii) WHETHER RAMESH HAD COMMITED AN 15-20

OFFENCE U/S 326A R/W SECTION 34, 354 D OF
IPC 1860?

iv) WHETHER THE STATE IS JUSTIFIED FOR 21

SEEKING PERMISSION FOR ADDITION OF
CHARGE U/S 366 OF IPC?

8 PRAYER 22
 3

LIST OF ABBREVIATIONS

AC Appeal Cases
A.I.R All India Reports
All Indian Law Reports Allahabad series
A.P Andhra Pradesh
Art. Article
BLJ Bombay Law Journal
Bom LR Bombay Law Reporter
Cr.LJ Criminal Law Journal Of India
CrPC Criminal Procedure Code
DPs Directive Policy
Edn. Edition
FRs Fundamental Rights
Guj. Gujarat
Hon’ble Honorable
IPC Indian Penal Code
Jul July
Ors. Others
QBD Queen’s Bench Division (Eng)
pat Indian Law Reports Patna Reports
r/w Read With
S Section
SC Supreme Court
SCR Supreme Court Reports
Sec. Section
TLR Times Law Reports
U.P Uttar Pradesh
u/s Under Section
 4

v. Versus

INDEX OF AUTHORITIES

LEGISLATION
1. THE INDIAN CONSTITUTION ACT, 1950.
2. INDIAN PENAL CODE, 1860
3. CODE OF CRIMINAL PROCEDURE, 1973.

CASES REFERRED

 Basdev v. State of Pepsu, AIR 1956 SC 488

 Bherusingh v. State, 1956 Madh. BLJ 905
 Brend v. Wood, (1946) 62 TLR 462;
 C. Magesh v. State of Karnataka, AIR 2010 SC 2768, 49;
 Dharam Pal v. State of Haryana, AIR 1978 SC 1492.
 Garib Singh v. State of Punjab, 1972 Cr LJ 1286.
 Ghurey Lal v. State of UP Criminal Appeal No. 155 of 2006
 Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.
 Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105.
 Lata singh v.State of Uttar Pradesh, AIR 2006 SC 2522
 Mehbub Shah vs King Emperor, AIR 1945 PC 148.
 Mepa Dana, (1959) Bom LR 269
 Nandu & Dhaneshwar Naik v. The State, 1976 CrLJ 250.
 Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
 Oswal Danji v. State, (1960) 1 Guj LR 145
 Pandurang v. State of Hyderabad, AIR 1955 SC 216
 Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.
 R v Parks, (1992) 2 S.C.R. 871
 R v. Prince, L.R. 2 C.C.R. 154 (1875)
 R v. Tolson, (1889) 23 QBD 168
 Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653.
 Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.
 Sohan Lal v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.
 State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.
 Suraj Singh v. State of Uttar Pradesh, 2008 (11) SCR 286
 T.J.Edward v. C.A. Victor Immanuel, 2002 Cr LJ 1670 (ker).
 Uma Dutta v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.
 Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.)
 William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116.
 5

 Woolmington v. D.P.P., 1935 AC 462;

BOOKS REFERRED

 V.N. SHUKLA, CONSTITUTION OF INDIA (12TH ED., 2013).

 DR. D.D. BASU, CONSTITUTIONAL LAW OF INDIA, (8TH ED., 2009).
 P.M. BAKSHI, THE CONSTITUION OF INDIA, (14TH ED., 2017).
 DR. J.N. PANDEY, THE CONSTITUTIONAL LAW OF INDIA, (51ST ED., 2014).
 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH ED., 2010).
 R.S. BEDI, THE CONSTITUION OF INDIA, (10TH ED., 2013).
 DR. S.C. KASHYAP, CONSTITUTIONAL LAW OF INDIA, (1ST ED., 2008).
 DR. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA,54TH EDITION, 2017.
 C.K TAKWANI, LECTURES ON ADMINISTRATIVE LAW, FOURTH EDITION, 2007.
 K D GAUR, TEXTBOOK ON INDIAN PENAL CODE, SIXTH EDITION, 2018.
 UNIVERAL’S CRIMINAL MANUAL, 2017 EDITION.
 SHAILENDER MALIK, THE INDIAN PENAL CODE, TWENTY FIFTH EDITION, 2011.
 RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, THIRTHY FOURTH
EDITION, 2012

LEGAL DATABASES
 WWW.YOURARTICLELIBRARY.COM
 WWW.LEGALSERVICEINDIA.COM
 WWW.INDIANKANOON.ORG
 WWW.LAWRATO.COM
 WWW.MANUPATRA.COM
 WWW.INDIANCASELAWS.ORG
 WWW.INDLAW.COM
 WWW.JUDIC.NIC.IN
 WWW.LEXISNEXIS.COM
 WWW.SCCONLINE.CO.IN
 WWW.WESTLAW.COM
 WWW.NCBI.NLM.NIH.GOV

IMPORTANT DEIFINITION:
1. The appellant for the purpose of this memorandum shall be the State.
2. The respondents for the purpose of all the issue shall be Ramesh .
 6

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of India under Article 132 and134 of
the Constitution of India,1950.

The respondents have appeared to the Hon’ble Supreme Court of India in response to the
petitions filed by the petitioners.
 7

STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble Court the facts of the case are
summarized as follows:

A. BACKGROUND OF THE CASE.

1) That Reema an 18 year old girl was a student of 12th class.

2) That Ramesh, a math teacher of Reema in her school, secretly developed emotions for her
and also Reema admired him.
3) That on Reema’s 18th birthday Ramesh organized a birthday party for her at his house
and gifted her expensive watch which was happily accepted by Reema.

B. INCITED BETWEEN REEMA’S PARENTS AND RAMESH.

4) That on 14thFeb, 2013 Ramesh proposed to Reema for marriage and since Reema also
admired him she asked Ramesh to speak to her parents regarding the same.
5) That on 20thFeb, Ramesh approached her parents with the marriage proposal as asked by
Reema. However Reema’s parents rejected his offer and also strongly admonished
Reema and threatened that they will discontinue her studies.
6) However out of love Ramesh tried contacting Reema believing that all her actions were
under undue influence of her parents.
7) That as a responsible man Ramesh again tried to convince Reema’s parents for their
marriage but her parents strongly revoked his proposal and also beat him brutally and
asked him to leave.

C. ACTION ABETTED BY MAHESH

8) That enraged with the feeling of dejection when Ramesh went to Mahesh for seeking
advice, Mahesh insisted Ramesh that he should find Reema alone and take her to the
temple for marrying her And also Mahesh misleaded Ramesh that incase Reema resisted
the offer due to parental pressure Mahesh would threaten her with a bottle of acid.
9) That since Ramesh parents died in a road accident, Ramesh always confided him and
looked upon Mahesh as his father. Ramesh, who was initially reluctant agreed to the plan
on the condition that no harm will be caused to Reema and the bottle of acid will only be
used as a tool to convince her for compliance to their wishes.
10) That on 23rdMarch 2013 when Ramesh and Mahesh saw Reema passing on a lonely
road, they approached Reema to accompany them to the temple so that they can get
married. On Reema’s refusal ,Mahesh carrying the bottle of acid threatened Reema.
11) That when chaos was created, Mahesh accidentally spilled acid on Reema.
12) That the Session Court convicted Ramesh under Section 326 A r/w Section 34 of
IPC,1860 and sentenced him to 10 years of rigorous imprisonment. He was also asked to
 8

pay compensation to Reema to the sum of Rs. 200000/- to be paid immediately. He was
also awarded rigorous imprisonment for 2 years under section 345D, IPC, 1860.Both the
sentences were to run concurrently.

D. MATTER BEFORE THE COURT

13) That since Ramesh was aggrieved by the decision of the District Court, he filed an appeal
to the High Court.
14) That the High Court acquitted Ramesh and since the State was aggrieved by the Decision
of the High Court, it filed an appeal to the Supreme Court.
 9

QUESTION PRESENTED

ISSUE. 1
WHETHER THERE EXIST COMMON INTENTION BETWEEN ACCUSED RAMESH
AND MAHESH AS PER THE SECTION 34 OF IPC 1860?

ISSUE. 11
WHETHER THE VICTIM IS ENTITILED TO GET MORE COMPENSATION MORE
THAN SHE ACTUALLY GET?

ISSUE. 111
WHETHER RAMESH HAD COMMITED AN OFFENCE U/S 326A R/W SECTION 34,
354 D OF IPC 1860?

ISSUE. 1V
WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION FOR
ADDITION OF CHARGE U/S 366 OF IPC?
 10

SUMMERY OF PLEADINGS

ISSUE 1: WHETHER THERE EXIST COMMON INTENTION BETWEEN RAMESH

AND MAHESH AS PER THE SECTION 34 OF IPC 1860?
It is humbly submitted before the Hon'ble supreme court that there existed no common intention
between Ramesh and Mahesh as per Section 34 of IPC, 1860, as (3.1).Ramesh had no intention
of committing such an act and he did not aggrieved to that and, (3.2) the act was not done in
furtherance of the common intention under Section 34 which is important to attract the section.

ISSUE 11: WHETHER THE VICTIM IS ENTITILED TO GET MORE

COMPENSATION MORE THAN SHE ACTUALLY GET?
It is humbly submitted before the hon’ble court that present matter has been already been tried
before the session court. The magistrate at that time pay compensation to Reema to the tune of
Rs.2,00,000/- (two lakh). Under section 326A award compensation would be sufficient to
support the medical treatment of the victim. However along with the compensation state
government under victim compensation scheme provide compensation to the victim

ISSUE 111: WHETHER RAMESH HAD COMMITED AN OFFENCE UNDER SECTION

326A R/W SECTION 34, 354 D OF IPC, 1860?
It is humbly submitted before the Hon'ble Supreme Court that the appellant had not committed
any offence under section 326 A r/w section 34of IPC as (1.1).There was absence of the
requested of committing a criminal offence under section .326 ie absence of actus reas and
(1.1.2) there was absence of men’s rea (1.1.3) section 326 A can be attracted only when the act is
done voluntarily, but the Respondent has no voluntarily control over the act done by materials.
Under section 354 D of Indian Penal Code 1860, as Reema didn’t show any disinterest towards
the respondent and also the conduct of respondent of trying to talk to with Reema was reasonable
and justified.

ISSUE 1V: WHETHER YHE STATE IS JUSTIFIED FOR SEEKING PERMISSION FOR
ADDITION OF CHARGE U/S 366 OF IPC ?
It is humbly submitted before the Hon’ble court that the present matter has already been tried
before the session court. The Magistrate at the time of committal proceedings under Section 209,
CrPC did not charge the accused with Section 366, IPC, 1860.and the State is not justified for
seeking permission for addition of charge U/S 366 of IPC as the late framing of the charge would
cause prejudice to the accused and no injustice would be caused to the complaint by refusal.
 11

PLEADING

I. WHETHER THERE EXISTS COMMON INTENTION BETWEEN RAMESH

ANDMAHESH AS PER THE SECTION 34 OF THE IPC, 1860?

It is humbly submitted before the Hon’ble Supreme Court that there existed no common
intention between Ramesh and Mahesh as per the Section 34 of the IPC, 1860.

SECTION 34 OF INDIAN PENAL CODE, 1860

The Section 34 of the Indian Penal Code, 1860 states;“When a criminal act is done by several
persons in furtherance of the common intention of all, each of such persons is liable for that act
in the same manner as if it were done by him alone.”1

This section is intended to meet cases in which it may be difficult to distinguish between the acts
of the individual members of a party or to prove what part was exactly taken by each of them in
furtherance of the common intention of all.2The reason why all are deemed guilty in such cases is
that the presence of accomplices gives encouragement, support and protection to the person
actually committing an act.

The essential ingredients of Sec.34 of IPC as stated and restated by law Courts in plethora of
cases are:

(i) Common intention to commit a crime, and

(ii) Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability.3

This provision is only a rule of evidence and does not create a substantive offence. It lays down
the principle of joint liability. To charge a person under this section, it must be shown that he
shared a common intention with another person or persons to commit a crime and subsequently
the crime was perpetrated.4The Apex Court held in a case5, that in the case of Sec. 34 it is well
established that a common intention presupposes prior concert. It requires a pre-arranged plan
because before a man can be vicariously convicted for the criminal act of another, the act must
have been done in furtherance of the common intention of them all.

To constitute common intention it is necessary that the intention of each one of the accused was
known to the rest of them and was shared by them. The test to decide if the intention of one of
them is common is to see whether the intention of one was known to the other and was shared by
that other. In drawing the inference the true rule of law which is to be applied is the rule which

1
Section 34, Indian Penal Code.
2
Mepa Dana, (1959) Bom LR 269.
3
Shaik China Brahman v. State of A.P., AIR 2008 SC 610.
4
Garib Singh v. State of Punjab, 1972 Cr LJ 1286.
5
Pandurang v. State of Hydrabad ,AIR 1955 SC 216
 12

requires that guilt is not to be inferred unless that is the only inference which follows from the
circumstances of the case and no other innocuous inference can be drawn.6 
Each can individually cause a separate fatal blow. Yet, there may not exist a common intention if
there was no prior meeting of the mind. In such a case, each would be individually liable for the
injuries, he causes.7

ABSENCE OF COMMON INTENTION

It is humbly submitted that the accused Ramesh is being dragged into the picture for no
justifiable cause and for no fault, participation or involvement of his in the alleged act in
question. It is submitted that neither the accused had any intention with Mahesh nor did he act in
concert with Mahesh to commit such act. ‘Common intention’ implies a pre-concerted plan and
acting in concert pursuant to the plan. Common intention comes into being prior to the
commission of the act in point of time, which need not be a long gap.8

There was no evidence that prior to the incident there was any common intention shared by both
the accused. The said intention did not develop at the time of the incident as well and therefore, it
was held that Sec. 34 of the Indian Penal Code cannot be resorted to hold accused guilty of any
crime.9

Therefore, it is humbly submitted that there was no common intention between Ramesh and
Mahesh, in fact he did not have any knowledge of any such intention of Mahesh of throwing acid
on Reema as Ramesh strictly said no for the use of acid to which Mahesh agreed. Hence, in
absence of common intention he must not be held liable under S.34 of the IPC.

THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION

In view of the phraseology of S.34 existence of common intention is not enough, the criminal act
impugned to attract S.34 must be committed in furtherance of common intention. The section
operates only when it is found that the criminal act done by an individual is in furtherance of the
common intention and not without it.10The words ‘in furtherance of the common intention of all’
in S.34, IPC do not require that in order that the section may apply, all participants in the joint
acts must either have common intention of committing the same offence or the common
intention of producing the same result by their joint act be performed.

It is true that no concrete evidence is required to prove a common intention between two people
to commit an act. It is however key here to understand that such evidence must be such that it
does not leave any room for doubt against such an intention.11

Moreover, to sustain a charge under s. 34, active participation in the commission of the criminal
act is required which is clearly absent in the present case.
6
Oswal Danji v. State (1960) 1 Guj LR 145
7
Nandu & Dhaeshwar Naik v. The State, 1976 CriLJ 250
8
Ramchander & Ors. v. The State of Rajasthan
9
Veer Sigh v. State of U.P., 2010 (1) A.C.R.294 (All.).
10
State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.
11
Dharam Pal v. State of Haryana, A.I.R 1978 SC 1492.
 13

It is humbly submitted to honorable Court that the Accused-1 can’t be punished under the
principle of joint liability because he had no intention to bring about grievous hurt or even
knowledge of that such degree of hurt was a likely consequence. Similar situation was observed
in Lala Ram v. State of M.P12 

Hence, it is humbly submitted that there was no presence of common intention on the part of
Ramesh in the act of throwing acid on the face of victim and hence the Accused-1,Ramesh can’t
be charged under section 34 The counsel submits that since the aforementioned two essential
conditions have not been met with in the present. It is further submitted that the accused must not
be held liable under S.34 of IPC.

12
AIR !994 SC 1452.
 14

ISSUE 11: WHETHER THE VICTIM IS ENTITILED TO GET MORE

COMPENSATION MORE THAN SHE ACTUALLY GET?
It is humbly submitted before the hon’ble court that present matter has been already been tried
before the session court. The magistrate at that time pay compensation to Reema to the tune of
Rs.2,00,000/- (two lakh). Under section 326A award compensation would be sufficient to
support the medical treatment of the victim. However along with the compensation state
government under victim compensation scheme provide compensation to the victim.

S.357A of CrPC 1973

The section 357A of CrPC state that every state government in coordination with the central
government shall prepare a scheme for providing funds for the purpose of compensation to the
victim or his dependents who have suffered loss/injury as a result of crime and who require
rehabilitation.

S.257B of CrPC 1973

The compensation payable by the state government under the section 357A shall be an addition
to the payment of fine to the victim under section 326A or section 376D of the Indian Penal
Code, 1860.
Absence of common
It is humbly request that the accused Ramesh had no intention; neither the accused had any
intention with Mahesh. There was no evidence of common intention.
“Under section 34 of the Indian Penal Code,1860 states when a criminal act is done by several
persons in furtherance of the common intention of all each of such person is liable for that act in
the same manner as if it were done by him alone”.
The essential ingredients stated
1. Common intention to committing crime.
2. Participation by all the accused in the act/acts in furtherance of the common intention.
These two things establish their joint liability.
Therefore humbly request to the court that not enhance the amount because he can’t be charged
section 34.
The appellant also submits to this hon’ble court to order the state authorities to pay the
compensation to Reema which she is entitled to under section 357A(2) CrPC- same was ordered
by the HC section 357 (2) CrPC states that-
“Whenever a recommendation is made by the Court for compensation, the District Legal Service
Authority or the State Legal Service Authority; as the case may be, shall decide the quantum of
compensation to be awarded under the scheme referred.”
 15

ISSUE 111: WHETHER RAMESH HAD COMMITED AN OFFENCE UNDER SECTION

326A R/W SECTION 34, 354 D OF IPC, 1860?
It is humbly submitted before the Hon’ble Supreme Court that my client Ramesh has not
committed an offence under section 354 D of Indian Penal Code, 1860.
According to Section 354D of IPC.
Any man who,
i) Follows a woman and contacts, or attempts to contact such woman to foster personal
interaction repeatedly despite a clear indication of disinterest by such woman; or
ii) Monitors the use by a woman of the internet, email or any other form of electronic
communication, commits the offence of stalking;
Provided that such conduct shall not amount to stalking if the man who pursued it proves that-
i) It was pursued for the purpose of preventing or detecting crime and the man accused of
stalking had been entrusted with the responsibility of prevention and detection of crime
by the State;
ii) It was pursued under any law or to comply with any condition or required imposed by
any person under any law; or
iii) In the particular circumstances such conduct was reasonable and justified.13
It is humbly submitted that such conduct on the part of Respondent trying to talk to Reema
doesn’t amount to stalking as it is covered in the clause(ii) of the Proviso to Sub Sec.(1) which
says that “in the particular circumstances such conduct was reasonable and justified.”
Moreover, even the ingredients of main definition, such as “disinterest” and “Foster personal
interaction” may not be relevant in such a scenario.
It is humbly submitted before Hon’ble Court in light of facts that the girl never refused his offer
of marrying her. Nowhere in the fact statement has a clear “no” to foster a relationship been
found.
In fact Reema, the victim told him to speak to her parents for the same. Instead of denying the
proposal she told him to talk to her parents. This is a strong sign that she was not against
marriage proposal.
Section 354,IPC states that an act would not amount to stalking if in the particular circumstances,
such conduct was reasonable ad justified. The accused was always under the belief she was
avoiding him because of pressure of her parents and she was felt threatened by the consequences.
The fact that the accused, rather than stalking the girl, was making constant efforts in good faith
to come to know the real reason why the girl was denying contact with him and whether she was
making a decision with a free mind cannot be excluded. Hence, the case couldn’t be brought
under the horizon of stalking as held by the appellant.

13
Section 354D of Indian Penal Code
 16

Our client had constantly approached the parents of the girl with the proposal of marriage and
tried to convince them for same instead of taking up non- desirable means. This clearly shows
lack of malice on the part of the accused.
The circumstantial evidence relied upon by the prosecution is not sufficient to raise an irresistible
inference that the accused has committed the offence of stalking.
The burden of proving the charge lies upon the prosecution. It has failed to discharge its burden.
Thus, the benefit has to go to the accused. The accused must be entitled to get the benefit of
doubt as held in Ghurey Lal v. State of UP.14
Hence it is humbly submitted that the accused shouldn’t be held guilty under Section 354D, IPC,
1860 as the accusations made will not stand the test of law even if the definition of this section is
quite general and wide. It says that such conduct does not amount to stalking in particular
circumstances where the conduct was justified and reasonable. The conduct of the Respondent
was justified and reasonable as the acts of Reema clearly showed that she was interested in our
client and he in good faith went to talk with Reema thinking she was under undue influence of
her parents, as she was a bright student and her parents threatened to discontinue her studies if
she kept any form of contact with the respondent.

Moreover in the case of Lata singh v. State of Uttar Pradesh,15the Supreme Court viewed the
right to marry as a component of right to life under Art 21 of Indian Constitution the court
observed that: “This is a free and democratic country, and once a person becomes a major he or
she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such
inter-caste marriage the maximum they can do is that they can cut off social relations with the
son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot
harass the person who undergoes such inter-caste marriage. 16Since both Reema and our client
have the right to marry as per their choice. Reema’s parents cannot pressurize Reema and assault
our client when he went again with the proposal to marry Reema and threaten Reema to stay
away from him or else they would discontinue her studies.

14
Ghurey Lal v. State of UP on 30th Jul,2008.Criminal Appeal No. 155 of 2006
15
AIR 2006 SC 2522
16
http://www.legalservicesindia.com/article/1001/right-to-marry.html, last visited on 12 Apr,2019
 17

SECTION 326 R/W SECTION 34 OF IPC

It is humbly submitted before this Hon’ble Supreme Court that to constitute a criminal offence,
two essential elements are required i.e. actus reus and mens rea. In the present case there has
been a gross failure of justice on part of the Session courts. There has been a grave error in
convicting Ramesh solely on the basis of his mere presence at the site of the incident. However
the High Court on the appeal made by the respondent Ramesh passed a rationale and fair
judgment and had acquitted him.

ABSENCE OF REQUISITE OF ACTUS REUS AND MENS REA

“At the most fundamental level, criminal law is based around a single Latin phrase: “Actus
non facit reum nisi mens sit rea”, which translates to “an act does not make a person guilty
unless the mind is also guilty”.
Evidence must be tested for its inherent consistency and inherent probability of the story.17In the
instant case, the entire prosecution story is unreliable. It is a well settled principle in common
law that an offence is constituted by the presence of the actus reus as well as mens rea. 18The
requirement of mens rea can be dispensed with only if the statute excludes mens rea explicitly or
by necessary implication.19It imposes a burden on the State to prove that the defendant
“performed the relevant actus reus with the requisite mens rea in the crime charged”. 20Hence, the
prosecution needs to prove that a prima facie case exists with regard to the mens rea as well.
There is nothing in the facts to give a slight hint that Ramesh threw acid or had any intention to
throw acid on Reema. He was in true love with Reema, and could never think of doing such an
act.

ACTUS REUS
For actus reus to be made out there must be a voluntary commission of an unlawful act. All
actions are presumed to be voluntary, but the defense can argue that there was no actus reus
because the defendant had no voluntary control of his or her actions. This was the case in R v.
Parks.21 Where the accused presented evidence that he was sleepwalking at the time he killed his
mother and father in law. The Supreme Court of Canada upheld Mr. Park’s acquittal on the
basis that he was not acting voluntarily.

Thus, for actus reus to be made out there must be a voluntary commission of an unlawful act.

It is humbly submitted before the Hon’ble Court that the unlawful Act of throwing acid was not
committed by the Respondent and he was not holding the bottle of acid, so there was no Actus
Reus on his part. Also the act was unlawful, but was an accident and the respondent had no
voluntary control on it and the acid got poured accidentally by Mahesh. He also strictly
prohibited Mahesh for not using acid.

17
C. Mahesh v. State of Karnataka, AIR 2010 SC 2768,49;Suraj Singh v. State of Uttar Pradesh,2008(11) SCR 286
18
R v. Tolso,(1889) 23 QBD 168
19
Brend v. Wood,(1946)62 TLR 462; Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43
20
Woolmington v. D.P.P., 1935 AC; Smith and Hogan’s Criminal Law 29(David Ormerod ed., 13th edn., 2011).
21
(1992) 2 S.C.R. 871.
 18

MENS REA
Courts presume that criminal offences require some form of subjective mens rea intent,
knowledge, recklessness, or willful blindness in relation to all aspects of the actus reus unless
Parliament clearly indicates otherwise.”22 

Mens rea is a technical term, generally taken to mean some blame worthy mental condition,
whether constituted by intention or knowledge or otherwise, the absence of which on any
particular occasion negatives the intention of a crime. The act becomes criminal when the actor
does it with a guilty mind.

As held in the case on Brend v. Wood 23Lord Godd and, C.J., said:
“It is of utmost importance for the protection of the liberty of the subject that a court should
always bear in mind that, unless a statute either clearly or by necessary implication rules out
mens rea as a constituent part of a crime, the court should not find a man guilty of an offence
against the criminal law unless he has a guilty mind.”

The evidence of motive is relevant since it throws a light on the question of intention and gives
clue to a crime, and though the prosecution is not bound to prove motive for a crime, absence of
motive may be a factor in consideration of the guilt of the accused. As stated by the Supreme
Court in Basdev v. State of Pepsu,24 motive is something which prompts a man to form an
intention.

AS PER SECTION 326 A WHOEVER VOLUNTARILY CAUSING GRIEVOUSHURT

BY USE OF ACID ETC.-

Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or
disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or
by administering acid to that person, or by using any other means with the intention of causing or
with the knowledge that he is likely to cause such injury or hurt, shall be punished with
imprisonment of either description for a term which shall not be less than ten years but which
may extend to imprisonment for life, and with fine;

Provided that such fine shall be just and reasonable to meet the medical expenses of the
treatment of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.
“A person is said to cause an effect “voluntarily” when he causes it by means whereby he
intended to cause it, or by means which, at the time of employing those means, he knew or
had reason to believe to be likely to cause it.” 25

According to sec.39 of IPC 1860, a person is said to cause an effect voluntarily, when he causes
it
(i) intentionally, or
22
Source https://certificate.queenslaw.ca/blog/the-brains-and-brawn-of-criminal-law-mens-rea-and-actus-reus last
visited on 11 April 2019
23
(1946) 62 TLR 462
24
AIR 1956 SC 488.
25
Section 39 of IPC
 19

(ii) he knew or had reasons to believe, to be likely to cause it.

It is humbly submitted before the Hon’ble Court that our client did not cause the act voluntarily
as firstly he had no intention of causing harm to the victim and secondly he had no reasons to
believe that such incident would occur as it happened unintentionally. Moreover our client did
not commit such an act.

SECTION 34 OF THE INDIAN PENAL CODE

It is humbly submitted before the Hon’ble Supreme Court that Section 34 of the Indian Penal
Code recognizes the principle of vicarious liability in criminal jurisprudence. A bare reading
shows that the section could be dissected as follows:
1. Criminal act is done by several persons;
2. Such act is done in furtherance of the common intention of all; and
3. Each of such persons is liable for that act in same manner as it if it were done by
him alone.26

Original section 34 as it stood in original code of 1860 was “When a criminal act is done by
several persons, each of such persons is liable for that act in the same manner as if the act was
done by him alone.” Later what was observed in Queen vs. Gora Chand Gope & Ors,27new
words were introduced into the act, “in furtherance of common intention”.

It is humbly submitted before Hon’ble Court that this case strongly comes under the horizon of
the new words which were introduced into the section 34 in 1870 and intention of accused must
be studied very carefully as stated in facts as the accused can’t be liable only because at the time
of that particular act of acid attack he was intending to be partaker with the doer in a different
criminal act.

The reason why all are deemed guilty in such cases is that the presence of accomplice gives
encouragement, support and protection to the person actually committing an act. It must be noted
that nowhere the accused encouraged, supported and gave protection to Mahesh, who actually
committed the act. The act sprung wholly from the mind of doer. Instead Accused-1, Ramesh
made it clear to Mahesh that bottle will be used only as a tool to threaten the victim for
compliance to their wishes.

To constitute common intention it is necessary that the intention of each one of them be known
to the rest of them and shared by them. It was held in Hanuman Prasad v. State of Rajasthan.28

In Pandurang vs. State of Hyderabad,29 the court had in mind the ultimate act done in
furtherance of common intention. It is submitted that the ultimate act in this case i.e. act of acid
attack was not in the furtherance of common intention as in light of stated facts it has been made
clear that Ramesh was devoid of any such intention. He made it very clear that the acid bottle is

26
Ratanlal & Dhirajlal,”The Indian PenalCode”,34th Edition,2014.
27
Queen v. Gora Chand Gope & Ors(1866) 5South WR (Cri) 45.
28
Hanuman Prasad v. State of Rajasthan,(2009) 1SCC 507
29
AIR 1955 SC 216; 1955 Cr Lj 572.
 20

just a tool to threaten and no further harm must be caused and the common intention among the
accused evaporated as soon as Mahesh opened the bottle of acid for the ultimate act. It was sole
act of Mahesh and Ramesh played no part in that.

In Mehbub Shah vs. King Emperor 30 it was clear to the Lordships that the common intention
within the meaning of section implies a pre-arranged plan, and to convict the accused of an
offence applying the section it should be proved that the criminal act was done in concert
pursuant to the pre-arranged plan. Here in this case it is very clear that there was no pre-arranged
plan. Moreover there was no meeting of minds among two accused. Ramesh right from start was
very clear that no harm must be done to victim.

It was held in Harbans Nonia v. State of Bihar 31that where the act of murder by main accused
was facilitated by two others by catching hold of the victim but without knowing or having the
intention of causing death, then only common intention that only intention that could be inferred
was that of causing grievous hurt.

In light of the facts of case there was not even the intention of causing the hurt to the victim in
mind of Accused-1. And keeping in view aforesaid judgment it’s not difficult to conclude that
there was absence of common intention on part of Ramesh in the act.

It is humbly submitted to honorable Court that the Accused-1 can’t be punished under the
principle of joint liability because he had no intention to bring about grievous hurt or even
knowledge of that such degree of hurt was a likely consequence. Similar situation was observed
in Lala Ram v. State of M.P32 

Hence, it is humbly submitted that there was no presence of common intention on the part of
Ramesh in the act of throwing acid on the face of victim and hence the Accused-1, Ramesh can’t
be charged under section 34 and hence can’t be held guilty under section326A of IPC.

IV. WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION

FORADDITION OF CHARGE U/S 366 OF IPC?

30
Mehbub Shah v. King Emperor,AIR 1945 PC 148
31
Harbans Nonia v. State of Bihar,AIR 1992 SC125;1992 Cr LJ 205
32
AIR 1994 SC 1452
 21

It is humbly submitted before the Hon’ble Court that the present matter has already been tried
before the Sessions Court. The Magistrate, at the time of committal proceedings under Section
209, CrPC did not charge the accused with Section 366, IPC, 1860.

An application for addition or alteration of the charge should be made immediately after the
charge has been read out and explained by the Magistrate. 33It is submitted that the prosecution
had the opportunity to get the new charge of Section 366, IPC added against the accused. But the
prosecution did not do so.

It is further submitted that the High Court having inherent power to do so, did not find any
ground to add a charge under Section 366, IPC against the accused.

The late framing of a charge would cause prejudice to the accused and no injustice would be
caused to the complainant by refusal.34

It is to be noted that the High Court has acquitted the accused from all the charges and has
dismissed the appeal of the State. When the accused was discharged of all the charges and no
charge existed against him, an application by prosecution under Sec 216, CrPC was not
maintainable.35The addition of a new charge will amount to re-opening of the trail and will
dissipate the valuable time of the Hon’ble Supreme Court.

Hence, it is humbly requested from the Hon’ble Court not to maintain the permission of the State
to add a charge under Sec 366, IPC against the accused.

PRAYER

33
T.J.Edward v. C.A.Victor Immanuel,2002 Cr LJ 1670 (ker)
34
Uma Dutta v. State of Rajasthan,1990 Cr LJ 2302: AIR 1990 SC 2158
35
Sohan Lal v. State of Rajasthan,1990 Cr LJ 1406
 22

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS
THAT THE HON’BLE SUPREME COURT BE PLEASED:

1. To declare that Mr.Ramesh is not guilty of the crime of causing grievous hurt by use of acid
and stalking.
2. To declare that permission shall not be given to the state to add a charge of Section 366, IPC
against the accused.
3. To declare that the High Court’s acquittal order of Mr.Ramesh should be reversed.

AND/OR
PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSIENCE.AND FOR THIS ACT OF
KINDNESS, THE COUNSELS FOR THE RESPONDENT AS IN DUTY BOUND SHALL EVER
PRAY.