ISSUE -3

THE ACCUSED ARE GUILTY UNDER SECTION 322, 323, 326 AND 506 OF INDIAN
PENAL CODE 1860

It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul (hereinafter will
be referred as A1, A2 AND A3 respectively) are guilty under section 323 1,3262 and 5063 of IPC
and Laxmi Devi (hereinafter will be referred as A4)

The prosecution would divide the contentions into 4 sub issues to deal with this issue [3.1]
Grievous hurt was caused voluntarily; [3.2] There was use of dangerous weapons and means;
[3.3] Threat to assault [3.4] Voluntarily caused hurt to the victim.

[3.1] Grievous hurt was caused voluntarily

Ingredients -In order to attract Section 322, the Court has to see that the accused intended to
cause hurt, or that he knew that grievous hurt was likely to be caused and such grievous hurt is
actually caused. In the Param Dev v. State of H.P.4the grievous hurt was actually caused and the
accused should have known that his action was likely to cause grievous hurt. Nothing more was
needed to bring the offence under Section 322 I.P.C.

It is most respectfully submitted before this honourable court that A1, A2, A3 is guilty of
Voluntarily causing grievous hurt under section 322 of IPC. It must be brought to the notice that
in the mid night of 6th July, A1, A2, and A3 brutally raped the victim and specifically they had
hit the victim’s private body part and also other parts of body. 5They had every intention to rape
her and cause grievous hurt as it was pre-arranged plan in order to take revenge from the victim
and looking upon the medical examination report6 it is clear that she was brutally assaulted
which made her unconscious and she finally died and they knowingly assaulted her as it is clear
from their intention that should teach her a lesson.7

[3.2] There was use of dangerous weapons and means

1
Section 322 of Indian Penal Code, 1860
2
Section 326of Indian Penal Code, 1860
3
Section 506 of Indian Penal Code, 1860
4
Param Dev v. State of H.P., 1975 CrLJ 1346 (HP) :ILR (1975)HP 54.
5

6
7
The essential ingredients to attract Section 326 are:

(1) Voluntarily causing hurt;) (2.) hurt caused must be grievous hurt; and (3) the grievous
hurt must have caused by dangerous weapons or means.8

If a hurt is caused and the others of the crime are actuated by a common intention to cause the
said hurt, then no matter who actually did cause hurt, all the members of the group would be
vicariously liable for causing the grievous hurt.9Whether a particular article can per se cause any
serious wound or grievous hurt or injury has to be determined particular. What would constitute
a ‘dangerous weapon’ would depend upon the facts of each case and no generalization10

It is humbly submitted before this honourable bench that apart from ingredients of section 323
the ingredients of section 326 also fulfils. In the instant case looking upon the medical
examination report11 it is quite evident that some dangerous weapons and means have been used
as upon finding of the external examination of the victim all the clothes were blood stained. As
far as who actually used the weapon or means in causing hurt or did that jointly or that particular
weapons were dangerous or not is immaterial as generalization can’t be done about the weapon
nor about gravity of wounds as the injury was dangerous which ultimately proved to be fatal.
Therefore, the prosecution request to vicariously liable and convict them A1, A2 and A3 under
section 326 read with section 34 and 120 of I.P.C.

[3.3] Threat to assault

Section 506: Ingredients -The Section has the following essentials: -

1. Threatening a person with an injury.

(i)To his person, reputation or property; or (ii) to the person, or reputation of any one in whom
that person is interested.

2. The threat must be with intent

8
Prabhu v. Statte of M.P; AIR 2009 SC 745 (2008)17 SCC 381.
9
Matukdhari Singh v. Emproer, AIR 1942 Pat 376 :43
10
Prabbhu v. State of M.P. AIR 2009 SC 745 : (2008) 17 SCC 381
11
(i)to cause alarm to that person, or (ii) to cause that person to do any act which he is not legally
bound to do as the means of avoiding the execution of such threat; or (iii) to cause that person to
omit to do any act which that person is legally entitled to do so as the means of avoiding the
execution of such threat.

Therefore, intention must be to cause alarm to the victim and whether he is alarmed or not is
really of no consequence. But material has to be brought on record to show that intention was to
cause alarm to that person12In instant case on 9th January 2010 when PW2 had scolded A1 then
A1 had warned Infront of PW3 that if he (PW2) continued to scold him again then he should be
ready for the consequences.13 As stated in the above mentioned that it doesn’t matter whether
victim was threatened or not and through material on record that is statement recorded U/S 161
Crpc,1973 of PW2 and PW3 it can be clearly deduced through the warning given by A1 that
there was every intention to threaten the victim.

It is not correct to say that under Section 503 the threat must be direct threat, that is, it must be in
the presence of the complainant. If the threat was uttered in the presence of some person with a
view to be communicated to the person threatened it must be said that the person who uttered the
threat, threatened the person for whom the threat was meant. 14In the instant case also although
the threat was given to the victim’s father but it was with the view to be communicated to the
victim and from that day there was a daily routine that A1 regularly insulted the victim for not
bringing dowry and also she was tortured and physically abused15

However, the co-accused A2 &A3 in the present case have also been charged under Section
506IPC. The aforesaid conclusion takes me to the issue whether the accused persons can be
convicted with the aid of Section 34 IPC. Section 34 IPC stipulates that the act must have been
done in furtherance of the common intention in order to incur joint liability. In the present case
the testimony of deceased clearly proves that all the accused persons acted in concert with each
other and committed crime in one and several transactions.

Therefore, in view of the aforesaid discussion, all accused stand convicted of offence under
Section 506 read with section 34 of IPC.
12
Amulya Kumar Behera v. Nabaghana Behera 1995 CrLJ 355 (Ori)
13

14
Chandi Charan Dutta v. Bhabataran Dey, (1964) 2 CrLJ 85 (Cal.)
15
 [4.4] Voluntarily caused hurt to the victim

Where the accused has been proved by evidence to have been blows and kicks to the deceased
simply with the intent to give him a thrashing, he should be convicted under Section 323in the
absence of proof that he intended to cause death, or grievous hurt.16

In the instant case even after knowing that the victim will not be able to live for more than an
hour on account of the internal bleeding in the stomach then also A4 in the moment of anger with
the intention of revenge started abusing her and kicked victim’s stomach several times.17

Therefore, A4 is liable under section 323 of IPC for voluntarily causing hurt.

ISSUE -4

THE ACCUSED ARE GUILTY UNDER SECTION 299 AND 302 OF INDIAN PENAL
CODE 1860

The prosecution would divide the contentions into 4 sub issues to deal with this issue [4.1]
Motive [4.2] Complete chain of Circumstantial evidence [4.3] [4.3] Dying Declaration[4.4]
Medical evidence.

[1.1] Motive

In Sanaulla Khan v. State of Bihar Where other circumstances lead to the only hypothesis that
the accused has committed the offence, the Court cannot acquit the accused of the offence
merely because the motive for committing the offence has not been established in the
case.18Murder charge when has been squarely proved by circumstantial evidence coupled with
dying declaration, motive is not important. 19Murder charge when is proved by circumstantial
evidence to the hilt, absence of motive is not relevant.20

16
Empror v. Saberali, AIR 1920 Cal 401: 21 CrLR (Raj) 465.
17
18
Sanaulla Khan v. State of Bihar, (2013) 3 SCC 52; 2013 CrLJ 1572
19
Amar Singh Guman v. State of Gujarat, (1987) 1 Crimes 302 (Guj).
20
Parimal Banerjee v. State of W.B., 1986 CrLJ 220 (Cal)
Where bodily injury sufficient to cause death is actually caused it is immaterial to go into
question as to whether the accused had intention to cause death or knowledge that the act will
cause death.21

In the instant case also all though A1, A2, A3 intention was only to rape and to teach her a lesson
and there is no motive to kill her but even if there is absence of motive still, they can be
convicted under section 302 of I.P.C.

[4.2] Complete chain of Circumstantial evidence

An act is said to cause death when death results either from the act directly or results from some
consequences necessarily or naturally flowing from such act and reasonably contemplated as its
result.22 The prosecution humbly submits before the honourable court that death of the victim
was the consequences of rape and causing grievous hurt.

The circumstance relied upon must be found to have been fully established and the cumulative
effect of all these facts so established must be consistent only with the hypothesis of guilt. But
this is not to say that the prosecution must meet any and every hypothesis put forward by the
accused however far- fetched and fanciful it might be. Nor does it mean that prosecution
evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is
reasonable and not otherwise.23It is humbly submitted before this honourable bench that
complete chain is formed and it is requested to convict them under section 302 of I.P.C. Even if
victim has not named the accused that who has raped her but it is quite evident from the above
submissions that A1, A2, A3 had brutally assaulted and raped her. There was full planning of
rape, at the place of incident only they were present, watchmen also saw two man coming out of
the apartment. Moreover, Rahul has already confessed his and A1, A2 guilt under the statement
recorded U/S 315 CrPC 1973. So there is no reasonable ground that on the slightest doubt
prosecution evidence should be rejected as complete chain is formed.

Arabindra Mukherjee v. State of West Bengal it was held that once the accused was last seen
with the deceased, the onus is upon him to show that either he was not involved in the

21
In re, Thangaavelu,1972 CrLJ 390 (Mad);State of Bihar v. Pasupati Singh,1973 CrLJ 1832 (SC) : (1974) 3
SCC 376: AIR 1973 SC 2699.
22
D.Yohannan v. State of Kerala, AIR 1958 Ker 207 : 1958 CrLJ 1021.
23
State of U.P. v. Ashok Kumar Srivastava, 1992 CrLJ 1104 (SC) : (1962) 2 SCC 86 : AIR 1992 SC 840.
occurrence at all or that he had left the deceased at her home or at any other reasonable place. To
rebut the evidence of last seen and its consequences in law, the onus was upon the accused to
lead evidence in order to prove his innocence. 24It is humbly submitted before this honourable
bench that on 6th of July, 2014 when all the person were out of station then A1 along with A2 and
A3 had came to the house in the midst of the night25 and planned to teach her a lesson and A3
have already made his statement about A1 ,A2 & and his occurrence and they have failed to lead
evidence in order to prove their innocence.

The plea of alibi is required to be proved with certainty so as to completely exclude the
possibility of the presence of the accused at the place of occurrence. 26A2 has not proved with
certainty that he was not present at the occurrence even if he left home he hasn’t proved that its
difficult for him to reach at the occurrence place at the time of incident. Moreover, A3 has
specifically mentioned in statement recorded/S 313 CrPC 1973 that A2 had raped the victim.
27
Therefore, it is requested that A2 plea of alibi should be rejected.

[4.3] Dying Declaration

Before dealing with the merits of the contentions urged by the counsel for the parties, it would be
appropriate to refer to the decisions rendered by the Supreme Court cited by the counsel for both
the parties in the matter of appreciation of the evidence of the prosecutrix in a rape case, which
are these: 28 In State of Maharashtra v. Chandra Prakash Kewal Chand Jain29 this Court had
emphasised that a woman who is a victim of rape is in the same position as an injured witness
and her evidence should receive the same weight as under section 118 of the evidence act. In
Kusa v. State of Orrisa There is no absolute rule of law, or even a rule of prudence which has
ripened into a rule of law, that a dying declaration unless corroborated by other independent
evidence, is not fit to be acted upon, and made the basis of a conviction30 In the instant victim in
her dying declaration has has made her statement that she was raped31 and looking upon

24
Arabindra Mukherjee v. State of West Bengal, 2012 AIR(SCW) 1032 : 2012 CrLJ 1207
25

26
Shaikh Sattar v. State of Maharashtra [(2010) 8 SCC 430}].
27
28
29
In State of Maharashtra v. Chandra Prakash Kewal Chand Jain 1990 AIR 658, 1990 SCR (1) 115
30
Kusa v. State of Orrisa, AIR 1980 SC 559 : 1980 CrLJ 408
31
circumstantial evidence it is clearly deducible that A1,A2 and A3 has raped her it is even
corroborated by the statement given by A3 U/S 315 CrPC 1973.

[4.4] Medical evidence

When oral evidence is credible and cogent, the medical evidence to the contrary would be
inconsequential.32Although it not mentioned coherently that there was injury on the private part
but oral evidence given by A3 has more value and can be concluded that she was brutally
assaulted and was succumbed to death.

32
Anil Kumar v. State of U.P; AIR 2004 SC 4662: (2004) 13 SCC 257 :2004 CrLJ 4881.