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Rayat College of Law Intra Moot Court, 2018

TABLE OF CONTENTS

LIST OF ABRIVATION……………………………………………………………………………….

INDEX OF AUTHORITIES...................................................................................................................

STATEMENT OF JURISDICTION.......................................................................................................

STATEMENT OF FACTS......................................................................................................................

STATEMENT OF ISSUES.....................................................................................................................

SUMMARY OF PLEADINGS...............................................................................................................

BODY OF PLEADINGS........................................................................................................................

PRAYER.................................................................................................................................................

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LIST OF ABBREVIATIONS

&…………………………………………………………………………………………………And

AIR………………………………………………………………………………….All India Reporter

ALL………………………………………………………………………………………….Allahabad

Anr……………………………………………………………………………………………. Another

Co…………………………………………………………………………………………….Company

Ed……………………………………………………………………………………………….Edition

Hon’ble…………………………………………………………………………………….Honourable

Ltd………………………………………………………………………………………………limited

Ors……………………………………………………………………………………………….Others

SC………………………………………………………………………………………Supreme Court

SCC……………………………………………………………………………...Supreme Court cases

Vs………………………………………………………………………………………………Versus

SLP……………………………………………………………………………..Special Leave Petition

CrPC……………………………………………………………………...Code of Criminal Procedure

No……………………………………………………………………………………………...Number

Cri……………………………………………………………………………………………Criminal

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INDEX OF AUTHORITIES

BOOKS AND DIGEST

1. K.D. Gaur, Textbook on Indian Penal Code, (5th edition), Universal Law Publishing, (2016).

STATUTORY COMPILATIONS
1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872

WEBPAGES

1. Indian Kanoon
2. SCC Online, http:/www.scconline.co.in
3. Live law
4. Case Mine
5. Manupatra Online Resources http:/www.manupatra.com

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TABLE OF CASES

Anda v. state of Rajasthan

Bodh Raj @ Bodha And Ors vs State of Jammu And Kashmir

C Chenga Reddy and Ors. v. State of A,P

Guriya Bucha vs State Of Gujarat

Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh

Issaq Mohammed And Anr. vs State Of Rajasthan

Jai Bhagwan and others v. State of Haryana

Jai Prakash v. State (Delhi Administration)

Kripal And Ors. vs State Of Uttar Pradesh

Mahmood vs State

Nand Kishore v. State of M.P.

Nand Kishore vs State Of M.P

Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra

Pandurang, Tukia And Bhillia vs The State Of Hyderabad

Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh

Rahimbux v. State of MPBhagwan Bahadure v. State of Maharashtra

Rajwant Singh v. State of Kerala

Ramaswami Ayyangar And Ors vs State Of Tamil Nadu

Ramayya Munipalli and another v. State of Bombay

Sheoram Singh & Anr vs State Of U.P


State of Rajasthan v. Dhool Singh

Trimukh Maroti Kirkan vs. State of Maharashtra

Virsa Singh v. State of Punjab

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STATEMENT OF JURISDICTION

The Honourable High Court has jurisdiction to entertain this appeal under section 374(2) of the

criminal procedure code,1973

374. Appeals from convictions.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or

on a trial held by any other Court in which a sentence of imprisonment for more than seven

years 2 has been passed against him or against any other person convicted at the same trial], may

appeal to the High Court.

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STATEMENT OF FACTS

1. That Kartar Singh (Appellant no. 1) is a farmer living with his family, Gajender Singh s/o

Kartar Singh (Appellant no. 2), Gurnam Singh (Appellant no. 3) brother of Appellant no.1.

2. That Karim, the deceased living in the same village was working as a system operator 12 km

away from the village in Nawanshehr and the deceased was in love with Gursirat, daughter

of Kartar Singh being a father and in order to protect his daughter warned Karim to stay

away from his daughter Gursirat. Later on, Kartar Singh severely admonished and scholded

Gursirat to refrain from meeting Karim.

3. That Gurman Singh owed a debt of rupees 20000/- to Karim but due to his helplessness to

pay could not returned the said money though he never denied paying off his debt as he

needed some time.

4. That on 8th August, 2016, Gurman Singh invited Karim to collect the debt and the deceased

reached there around 8:30 pm at the appellant’s dwelling when the family finished their

dinner.

5. That all of a sudden Appellant 1, 2, 3 heard someone whispering from the backyard and all 3

of them went towards the backyard to investigate and on seeing Karim and Gursirat together

and all the 3 appellants were albeit unarmed and Kartar Singh lost his temper and started

abusing Karim as he warned Karim previously that not to meet his daughter Gursirat.

6. That Gajender Singh (Appellant no. 2) brought a lathi from inside of the house as it was

easily available at every household and gave blows on the leg of deceased and then Gurnam

Singh grabbed the lathi and started beating Karim and gave blows on the head and chest.

7. That the deceased was taken to the hospital by the villagers where he died after 3 days and

according to the post mortem report that deceased suffered injuries on the head and fractured

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3 ribs and none of the injuries independently was sufficient to cause death while they

cumulatively were sufficient in the ordinary course of nature to cause death.

8. That FIR was registered under section 307 r/w section 34 of Indian Penal Code, 1860 and

after the death of karim was altered to section 302 r/w sections 34 of IPC.

9. That Sessions Court convicted appellant 1, 2, and 3 under section 302 r/w section 34 and

sentenced them to life imprisonment for having committed the murder of karim.

10. That aggrieved by the judgement of conviction passed by the learned trial judge, the

appellant have preferred the present appeal.

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STATEMENT OF ISSUES

1. Whether appellant 1,2 and 3 can be prosecuted u/s 302 r/w section 34 of I.P.C, 1860?

2. Whether the nature of injuries and weapon was such as to cause death of the person?

3. Whether the act of the deceased amounted to grave and sudden provocation?

4. Whether the session court was justified in sentencing the appellants with life

imprisonment in connection with the act committed by them?

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SUMMARY OF PLEADINGS

1. Whether appellant 1,2 and 3 can be prosecuted u/s 302 r/w section 34 of I.P.C, 1860?

Yes, appellant 1, 2 and 3 can be prosecuted u/s 302 r/w section 34 of I.P.C, 1860 because the
injuries caused by the blows of ‘lathi’ by the appellants on the leg, chest and head of the deceased
and according to the post mortem reports it confirmed that the deceased suffered injuries on the
head and fractured 3 ribs and those injuries were cumulatively sufficient in the ordinary course of
nature to cause death.

2. Whether the nature of injuries and weapon was such as to cause death of the person?

Yes, the nature of injuries and weapons was such as to cause death of the person, relying on the
medical evidence. The post mortem report submitted in the court clearly confirms that Karim
suffered injuries on head and fractured three ribs and these injuries were cumulatively sufficient
in ordinary course of nature to cause death.

3. Whether the act of the deceased amounted to grave and sudden provocation?

No, the acts of the deceased did not amount to grave and sudden provocation. The complete
incident was a pre-planned well organised cold-blooded murder and the ingredients of
section-300 exception 1 were not full filled.

4. Whether the session court was justified in sentencing the appellants with life imprisonment

in connection with the act committed by them?

Yes, the session court was justified in sentencing the appellant with life imprisonment as:
1) It is already established in the issue no.1 the Malafide intention of the appellants.
Having fulfilled the two basic ingredients of murder that is ACTUS REUS and MENS REA
with concurrence.
2) Further the session court has power under section-28 of Cr.P.C to sentence them life
imprisonment for the murder of the deceased (Karim).

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BODY OF PLEADINGS

ISSUE 1: Whether appellant 1, 2 and 3 can be prosecuted u/s 302 r/w section 34 of I.P.C,
1860?

Yes, appellant 1, 2 and 3 can be prosecuted u/s 302 r/w section 34 of I.P.C, 1860 because the
injuries caused by the blows of ‘lathi’ by the appellants on the leg, chest and head of the deceased
and according to the post mortem reports it confirmed that the deceased suffered injuries on the
head and fractured 3 ribs and those injuries were cumulatively sufficient in the ordinary course of
nature to cause death.

APPLICABILITY OF SECTION 34

1. Section 34 in The Indian Penal Code

Acts done by several persons in furtherance of common intention. —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.

2. In Jai Bhagwan and others v. State of Haryana1, the Hon'ble Supreme Court held as under:
"10. To apply Section 34, IPC apart from the fact that there should be two or more accused, two
factors must be established : (i) common intention, and (ii) participation of the accused in the
commission of an offence. If common intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if
participation of the accused in the crime is proved and common intention is absent, Section
34 cannot be invoked. In every case it is not possible to have direct evidence of common
intention. It has to be inferred from the facts and circumstances of each case."

3. Ramayya Munipalli and another v. State of Bombay 2, wherein it has been ruled thus: - ".... it
is the essence of the section that the person must be physically present at the actual commission

1
[Air 1999 SC 1083]
2
AIR 1955 SC 287

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of the crime. He need not be present in the actual room; he can, for instance, stand guard by a
gate outside ready to warn his companions about any approach of danger or wait in a car on a
nearby road ready to facilitate their escape, but he must be physically present at the scene of the
occurrence and must actually participate in the commission of the offence in some way or other
at the time the crime is actually being committed.

4. Issaq Mohammed And Anr. vs State Of Rajasthan It was, on the other hand, contended by
the learned Public Prosecutor that accused Mohammed Safi caught hold of Munti and, thus,
rendered him defenceless. It facilitated the stabbing by accused Issaq Mohammed. We have taken
the respective submissions into consideration

5. In Nand Kishore v. State of M.P.3, the Hon'ble Supreme Court held as under:

"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that Act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused
is liable to be convicted with the aid of Section 34. While first two are the acts which are
attributable and have to be proved as actions of the accused, the third is the consequence. Once
the criminal act and common intentions are proved, then by fiction of law, criminal liability of
having done that act by each person individually would arise. The criminal act, according
to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on
the word `done'. It only flows from this that before a person can be convicted by following the
provisions of Section 34, that person must have done something along with other persons. Some
individual participation in the commission of the criminal act would be the requirement. Every
individual member of the entire group charged with the aid of Section 34 must, therefore, be a
participant in the joint act which is the result of their combined activity.

21. Under Section 34, every individual offender is associated with the criminal act which
constitutes the offence both physically as well as mentally i.e. he is a participant not only in what
has been described as a common act but also what is termed as the common intention and,

3
(2011) 12 SCC 120

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therefore, in both these respects his individual role is put into serious jeopardy although this
individual role might be a part of a common scheme in which others have also joined him and
played a role that is similar or different. But referring to the common intention, it needs to be
clarified that the courts must keep in mind the fine distinction between `common intention' on the
one hand and `mens rea' as understood in criminal jurisprudence on the other. Common intention
is not alike or identical to mens rea. The latter may be co-incidental with or collateral to the
former but they are distinct and different.

6. In case of Pandurang, Tukia And Bhillia vs The State Of Hyderabad4 the Apex Court state
that
“It is true prior concert and arrangement can, and indeed often must, be determined from
subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during
the course of the action Which could only be referable to prior concert and pre- arrangement,
or a running away together in a body or a meeting together subsequently. But, to quote the
Privy Council again, "the inference of common intention should never be reached unless it is
a necessary inference deducible from the circumstances of the case".

7. In Ramaswami Ayyangar And Ors vs State Of Tamil Nadu5 , the Madras High Court said that
The contention is fallacious and cannot be accepted. Section 34 is to be read along with the
preceding which makes it clear that the "act" spoken of in Section 34 includes a series of acts
as a single act. It follows that the words "when a criminal act is done by several persons"
in section 34, may be construed to mean "when criminal acts are done by several persons".
The acts committed by different confederates in the criminal action may be different but all
must in one way or the other participate and engage in the criminal enterprise, for instance,
one may only stand guard to prevent any person coming to the relief of the victim or to
otherwise facilitate the execution of the common design. Such a person also commits an "act"
as much as his co- participants actually committing the planned crime. In the case of an
offence involving physical violence, however, it is essential for the application of section
34 that the person who instigates or aids the commission of the crime must be physically
present at the actual commission of the crime for the purpose of facilitating or promoting the
offence, the commission of which is the aim of the joint criminal venture. Such presence of

4
1955 AIR 216, 1955 SCR (1)1083
5
1976 AIR 2027, 1976 SCR 580

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those who in one way or the other facilitate the execution of the common, design, is itself
tantamount to actual participation in the 'criminal act'. The essence of section 34 is
simultaneous consensus of the minds of persons participating in the criminal action to bring
about a particular result. Such consensus can be developed at the spot and thereby intended
by all of them.

6
8. Sheoram Singh & Anr vs State Of U.P The SC held that common intention may develop
suddenly during the course of an occurance, But still unless there is cogent evidence and clear
proof of such common intention, A common intention can develop during the course of an
occurrence but there has to be cogent material on the basis of which the Court can arrive at such
a finding and hold one accused vicariously liable for the act of another accused by invoking s.34,
I.P.C.

9. Nand Kishore vs State Of M.P 7Another aspect which the Court has to keep in mind while
dealing with such cases is that the common intention or state of mind and the physical act, both
may be arrived at the spot and essentially may not be the result of any pre-determined plan to
commit such an offence. This will always depend on the facts and circumstances of the case.

10. Kripal And Ors. vs State Of Uttar Pradesh8, The SC held that a common intention may
develop on the spot after the offenders have gathered there. A previous plan is not necessary.
Common intention can be inferred from the conduct of the accused and the circumstances of
the case.

11. Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra9, the Bombay High
Court held that

Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a
common intention. Common intention essentially being a state of mind it is very difficult to
procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred
from the act like, the conduct of the accused or other relevant circumstances of the case. The
inference can be gathered from the manner in which the accused arrived at the scene and

6
1972 AIR 2555, 1973 SCR (1) 939,
7
CRIMINAL APPEAL NO.437 OF 2005
8
AIR 1954 SC 706
9
(1970) 1 SCC 696

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mounted the attack, the determination and concert with which the attack was made, and from
the nature of injury caused by one or some of them. The contributory acts of the persons who
are not responsible for the injury can further be inferred from the subsequent conduct after the
attack. In this regard even, an illegal omission on the part of such accused can indicate the
sharing of common intention. In other words, the totality of circumstances must be taken into
consideration in arriving at the conclusion whether the accused had the common intention to
commit an offence of which they could be convicted.

12. Section 300 in The Indian Penal Code

300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder, if the act
by which the death is caused is done with the intention of causing death, or—

(Secondly) —If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be in-flicted is sufficient in the ordinary course of nature to cause death, or—

(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

13. According to section 300(3) of IPC the act of appellant is amount to murder, that the bodily
injury intended to be inflicted to be sufficient in the ordinary course of nature to cause death of
the deceased and the according to the post mortem report that deceased suffered injuries on the
head and fractured 3 ribs and none of the injuries independently was sufficient to cause death
while they cumulatively were sufficient in the ordinary course of nature to cause death of the
deceased.

14. In case of Virsa Singh v. State of Punjab10, the Apex court held that whether the injury intended
by accused and actually inflicted by him I sufficient in the ordinary course of nature to cause
death or not, must be determined in each case on the basis of the facts and circumstances of the
particular case.

10
1958 AIR 465, 1958 SCR 1495

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Under clause (3) of section 300, IPC culpable homicide is murder, if both of the following
conditions are satisfied, namely: -
a) That the act which cause death is done with the intention of causing bodily injury, and
b) That the injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death.

12. To put it shortly, the prosecution must prove the following facts before it can bring a case
under Section 300 "thirdly";

First, it must establish, quite objectively, that a bodily injury is present;


Secondly, the nature of the injury must be proved; these are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that
is to say, that it was not accidental or unintentional or that some other kind of injury was
intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above is sufficient to cause death in the ordinary course of nature. This part of
the enquiry is purely objective and inferential and has nothing to do with the intention of the
offender.

15. The learned Judge explained the third ingredient in the following words:
The question is not whether the prisoner intended to inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is proved to be present. If he can show that he did
not, or if the totalities of the circumstances justify such an inference, then, of course, the intent
that the section requires is not proved. But if there is nothing beyond the injury and the fact that
the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he
knew of its seriousness, or intended serious consequences, is neither here nor there. The question,
so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a
particular degree of seriousness, but whether he intended to inflict the injury in question; and
once the existence of the injury is proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion.

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16. These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa
Singh's case (supra) for the applicability of Clause Thirdly is now ingrained in our legal system
and has become part of the rule of law. Under Clause Thirdly of s. 300 of the Code, culpable
homicide is murder if both the following conditions are satisfied: (a) that the act which causes
death is done with the intention of causing a bodily injury; and (b) that the injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death.

17. In Rajwant Singh v. State of Kerala11, The Supreme court held that the case is covered by
third clause of s. 300. All the acts were deliberate acts which were pre-planned and they thus
satisfied the subjective test involved in the clause. Also, the act considered objectively was
sufficient to cause death in ordinary course of nature. The ordinary course of nature was not
interrupted with any intervening act of another and whatever happened was the result of the acts
of assailants and nothing else. It was hardly necessary to prove more than the acts themselves and
the causal connection between the acts and the end result. The sufficiency of the injury was
objectively established by the nature and quality of the acts taken with the consequence which
was intimately related to the acts.

18. According to the facts Kartar Singh(Appellant no. 1) being a short tempered person got angry and
started abusing deceased, and the Appellant no. 2 got a lathi and gave blows to the deceased on
his leg and then Appellant no.3 grabbed the lathi and gave blows to the deceased on his head and
chest due to which as a result the deceased died after three days in the hospital and the post
mortem report confirmed that deceased suffered injuries on the head and fractured 3 ribs and
none of the injuries independently was sufficient to cause death while they cumulatively were
sufficient in the ordinary course of nature to cause death of the deceased.

19. In Anda v. state of Rajasthan12, The SC reaffirmed its earlier view held in versa Singh V. state
of Punjab, and observed, that the third clause of section 300, IPC speaks of an intention to cause
bodily injury which is sufficient in the ordinary course of nature to cause death. The nature of
weapon used and the part of the body on which the injury is caused is also relevant circumstances
to determine the intention of the person. But the determinant factor is the intentional injury which
must be sufficient to cause death in the ordinary course of nature.

11
AIR 1966 SC 1874: 1966 Cri LJ 1509
12
AIR 1966 SC 148, 1966 CriLJ 171

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20. In Jai Prakash v. State (Delhi Administration)13 Delhi High Court stating that “...The
'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their
existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of
attack, multiplicity of injuries and all other surrounding circumstances. The framers of the code
designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the
consequences which may result in doing an act is not the same thing as the intention that such
consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must
have been aware that certain specified harmful consequences would or could follow. But that
knowledge is bare awareness and not the same thing as intention that such consequences should
ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight
of the consequences, namely the purposeful doing of a thing to achieve a particular end."

Issue 2: Whether the nature of injuries and weapon was such as to cause death of the person?

Yes, the nature of injuries and weapons was such as to cause death of the person, relying on the
medical evidence. The post mortem report submitted in the court clearly confirms that Karim
suffered injuries on head and fractured three ribs and these injuries were cumulatively sufficient
in ordinary course of nature to cause death.

21. The injuries were on the vital parts of Karim sufficient to cause death and thereby proving the
malafide intention of the appealant-1,2,3

22. In the case of State of Rajasthan v. Dhool Singh14, the Hon'ble Supreme Court has observed
that in order to determine whether there was intention to kill or not is to be determined while
keeping in mind whether the injury was caused on vital body part and the nature of the
weapon used. The number of injuries inflicted shall be irrelevant.

23. In another case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh15,
the Hon'ble Supreme Court enumerated some of the circumstances relevant to find out
whether there was any intention to cause death on the part of the accused. The Court observed
as under:

13
[(1991) 2 SCC 32],
14
(2004) 12 SCC 546
15
(2006) 11 SCC 444

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The intention to cause death can be gathered generally from a combination of a few or
several of the following, among other, circumstances: (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was picked up from the spot; (iii) whether
the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all
fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger; (viii)
whether there was any grave and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The above list of circumstances is, of course,
not exhaustive and there may be several other special circumstances with reference to
individual cases which may throw light on the question of intention..."

24. In the case of Rahimbux v. State of MP16, the Hon'ble Supreme Court observed that the
intention which is predominantly present in the mind of the accused can be inferred from the
murderous blow on the vital part of the deceased. Relevant para of the case has been
reproduced below:

" .......the intention of the accused is apparent, he intended to inflict serious injury to Aslam
Khan but unfortunately on his failure he made the deceased a victim. Therefore, from this his
intention is apparent. Nobody, chases person with sword for any benevolent purpose. It is
unfortunate, instead of causing the death of Aslam Khan the accused caused the death of his
brother. It is nothing but change of malice from one brother to another brother. From these
facts we are of opinion that it is not a case in which the benefit of Section 304 I, I.P.C. or
Section 304 II, I.P.C. can be given to the accused.

........ It is the intention which was predominantly present in his mind when the accused
chased Aslam Khan and therefore, this intention he satisfied by inflicting the murderous blow
on the deceased on his vital part of body. Therefore, under these circumstances, we are of
opinion that the conviction of the appellant under Section 302, I.P.C. is well founded and
there is no ground to interfere in this appeal."

16
reported at AIR 2008 SC 3111,

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25. In Bhagwan Bahadure v. State of Maharashtra17, A Division Bench of the Bombay High
Court opined:
"It cannot be said as a rule of universal application that whenever one blow is given Section
302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of
the weapon, place where the assault took place, background facts leading to the assault, part
of the body where the blow was given are some of the factors to be considered.

ISSUE 3 : Whether the act of the deceased amounted to grave and sudden provocation?

No, the acts of the deceased did not amount to grave and sudden provocation. The
complete incident was a pre-planned well organised cold-blooded murder and the
ingredients of section-300 clause 1 were not full filled. Explaining with the help of case
law mentioned below:

26. Mahmood vs State on 17 November, 1960


In order to bring his case under Exception 1 to Section 300 I.P.C. an accused has to establish the
following ingredients:
(i). The provocation was sudden; (ii) the provocation wag grave; and (iii) loss of self-control.
These three ingredients may be considered one by one.

(i) Whether the provocation was sudden or not does not present much difficulty. The word
'sudden' involves two elements. Firstly, the provocation must be unexpected. If an accused
plan in advance to receive a provocation in order to justify the subsequent homicide, the
provocation cannot be said to be sudden. Secondly, the interval between the provocation and
the homicide should be brief. If the man giving the provocation is killed with to a minute after
fee provocation, it is a case of sudden provocation., If the man is killed six bouts after the
provocation, it is not a case of sudden provocation.

27. Further, it was stated in this case, in some decisions it has been suggested that in considering
whether the provocation was grave enough, the Court must inquire what a reasonable person
would do if provoked in a similar manner.

17
[2007 (11) SCALE 519],

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28. In case of Guriya Bucha vs State Of Gujarat18, it was stated by the High Court of Gujarat
that…… “If death is the result not entirely of the deprivation of the power of self-control by
grave and sudden provocation but is the result of a combination of the deprivation of self-
control and of the spirit of revenge or anger, then the exception would not apply. As the
wording of Exception 1 shows the death must be entirely due to the deprivation of the
power of self-control which in turn must be due to and must have a proper relation to the
grave and sudden provocation. The standard for the loss of self-control is of course that of
an average reasonable normal person.”

29. If death is the result not entirely of the deprivation of the power of self-control by grave
and sudden provocation but is the result of a combination of the deprivation of self-control
and of the spirit of revenge or anger, then the exception would not apply. As the wording
of Exception 1 shows the death must be entirely due to the deprivation of the power of
self-control which in turn must be due to and must have a proper relation to the grave and
sudden provocation. The standard for the loss of self-control is of course that of an average
reasonable normal person.

30. Whether the Provocation was grave and sudden enough to prevent the offence from
amounting to murder is a question of fact." An accused person claiming the benefit of this
Exception must prove the following facts: (1) that he received provocation, (2) which was
grave and (3) sudden; (4) that he was deprived of the power of self-control by it; and (5)
while still in that state of mind and before he had cooled down, caused the death of the
person who provoked him19.

31. In the case of Budhi Singh v. State of H.P20, the Supreme Court observed that the doctrine of
sudden and grave provocation is incapable of rigid construction leading to or stating any
principle of universal application. It was observed as under :
The doctrine of sudden and grave provocation is incapable of rigid construction leading to or
stating any principle of universal application. This will always have to depend on the facts of a

18
AIR 1962 Guj 39
19
Mahmood vs State
20
2013 Cri.L.J.962

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given case. While applying this principle, the primary obligation of the Court is to examine from
the point of view of a person of reasonable prudence if there was such grave and sudden
provocation so as to reasonably conclude that it was possible to commit the offence of culpable
homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence
resulting from grave and sudden provocation would normally mean that a person placed in such
circumstances could lose self-control but only temporarily and that too, in proximity to the time
of provocation. The provocation could be an act or series of acts done by the deceased to the
accused resulting in inflicting of injury.

32. In the present case, The provocation was not sudden as the acts done by the appellants were pre
planned as there is a clear-cut intention of the appellants to kill the deceased. The deceased was
called at a very peak hour to collect the money which Gurnam Singh was to pay, the time at
which most of the villagers would be asleep or would be having their dinner. Since it was
8:30PM the sun was set and was darkness all around giving the appellants desired time and place
to commit the offence without they being unnoticed commit the crime.

ISSUE 4 : Wheather the session court was justified in sentencing the appealant with life
imprisonment.
Yes, the session court was justified in sentencing the appellant with life imprisonment as:
3) It is already established in the issue no.1 the Malafide intention of the appellants.
Having fulfilled the two basic ingredients of murder that is ACTUS REUS and MENS REA
with concurrence.
4) Further the session court has power under section-28 of Cr.P.C to sentence them life
imprisonment for the murder of the deceased (Karim).

RELEVANCY OF CIRCUMSTANTIAL EVIDENCES:

33. Bodh Raj @ Bodha And Ors vs State of Jammu And Kashmir21The offence can be proved by
circumstantial evidence also. The principal fact or factum probandum may be proved indirectly
by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it

21
2002 Supp (2) SCR 67

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differently circumstantial evidence is not direct to the point in issue but consists of evidence of
various other facts which are so closely associated with the fact in issue that taken together they
form a chain of circumstances from which the existence of the principal fact can be legally
inferred or presumed.
It has been consistently laid down by this Court that where a case rests squarely on circumstantial
evidence

34. C Chenga Reddy and Ors. v. State of A,P22, wherein it has been observed thus:
"In a case based on circumstantial evidence. the settled law is that the circumstances from
which the conclusion of guilt is drawn would be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be complete and there should be
no gap left in the chain of evidence. Further the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.....'"

35. In Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh23, wherein it was
observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature. the
circumstances from which the conclusion of guilt is to be drawn the first instance be fully
established and all the facts so established should be consistent only with the hypothesis of the
guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one proposed to be proved. In
other words. there must be a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by the accused."

36. Trimukh Maroti Kirkan vs. State of Maharashtra 24it has been held :

"The normal principle in a case based on circumstantial evidence is that the circumstances from
which an inference of guilt is sought to be drawn must be cogently and firmly established; that
those circumstances should be of a definite tendency unerringly pointing towards the guilt of the
accused; that the circumstances taken cumulatively should form a chain so complete that there
is no escape from the conclusion that within all human probability the crime was committed by

22
[1996] 10 SCC 193
23
AIR (1952) SC 343,
24
2006 (10) SCC 681

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the accused and they should be incapable of explanation on any hypothesis other than that of the
Crl. Appeal No.87 of guilt of the accused and inconsistent with their innocence.

and again "If an offence takes place inside the privacy of a house and in such circumstances,
where the assailants have all the opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence
to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed
above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to
see that no innocent man is punished. A judge also presides to see that a guilty man does not
escape.

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Hon’ble High Court be pleased to adjudge, hold and declare:

Dismiss the Appeal and hold that the order of conviction passed by the Sessions Court is correct.

AND/OR

Pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good conscience.
And for this act of kindness, the counsel for the Petitioner shall duty bound forever pray.

Sd/-
(Counsel on the behalf respondent)

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