Reg Number:41316101110

IN THE HIGH COURT OF STATE

Appeal filed under section 374(2) of Code of Criminal Procedure, 1973, appellate
jurisdiction of the High Court of State.

Mr. Raghav (Major) A1

Mr. Prakash (Major) A2
Mr. Raja (Major) A3
Mr. Rohan (Minor) A4............................................................................................Appellants

v.

State..........................................................................................................................Respondent

Most Respectfully Submitted before the Hon‟ble HighCourt of State

MEMORANDUM ON BEHALF OF APPELLANTS

DRAWN AND FILED BY THE COUNSELS FOR THE

APPELANTS

The Seshadripuram Law college Moot Court, 16th March, 2019

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 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ...................................................................................................

INDEX OF AUTHORITIES .........................................................................................................
STATEMENT OF JURISDICTION ............................................................................................
SYNOPSIS OF FACTS .................................................................................................................
ISSUES RAISED ..........................................................................................................................
BODY OF ARGUMENTS............................................................................................................
PRAYER.........................................................................................................................................

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 TABLE OF ABBREVIATIONS

ABBREVIATIONS EXPANSON

AIR All India Reporter

SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
IPC GST Indian Penal CodeGoods and Service Tax
Cr.L.JCGST Criminal Law JournalCentral Goods and
Service Tax
CRPC Code of Criminal Procedure Code

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 INDEX OF AUTHORITIES

A. CASES
1. Surain singh V State of Punjab Criminal Appeal No 2284 of 2009.
2. State of A.P. vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382
3. Surinder Kumar v. Union of India, Chandigarh, AIR 1989 S.C. 1094).
4. Camilo Vaz vs. State of Goa, (2000) 9 SCC 1
5. Jagrup Singh v. State (AIR 1552, 1981 SCR (3) 839)
6. Virsa Singh v. State of Punjab (AIR 465, 1958 SCR 1495)
7. Ramachander v. State of Rajasthan, 1970 Cr.L.J. 653]
8. State of Rajasthan vs. Shobha Ram, (2013) 14 SCC 732

B.BOOKS, STATUTES REFERRED AND OTHER AUTHORITIES

1. Basu’s Indian Penal Code
2. Ratanlal and Dhirajlal’s Indian Penal Code
3. Sarkars Indian Penal Code
4. Indiakanoon.com
5. Duhaime's Law Dictionary
6. Indian Penal Code, 1861
7. Code of Criminal Procedure, 1973
8. Juvenile Justice (Child Care and Child) Protection Act, 2015
 SYNOPSIS OF FACTS

1. Raghav was living with his three children Raja aged 22 years, Manya aged 20 years and

Rohan aged 17 years. Raghav’s brother Prakash was also living in the same apartment with
his family members. Suresh a youth aged 24 years was in love with Manya. Raghav being a
father had warned suresh from meeting her.

2. One day Raghav saw them together near their house. He lost his temper and starting
abusing Suresh. Raghavs brother Prakash on hearing the sound also joined and bought a
lathi with him which was grabbed by Raghavs two sons and gave blows with the lathi on the
head and chest of Suresh.

3. Suresh was rushed to the hospital by neighbors where he died three days later. Post
mortem report confirmed that Suresh suffered injuries on head and fracture on ribs. None
of the injuries were independently sufficient to cause death while they were cumulatively
sufficient in the ordinary course of nature to cause death.

4. First information report was registered under section 307 read with section 34 of IPC and
after the death of Suresh charges were altered to section 302 read with section 34 and
sentenced all the four appellants to life imprisonment for having committed murder.

5. Aggrieved by the judgement of conviction passed by the trial judge the appellants have
preferred an appeal before the High court.
 Statement of Jurisdiction

The Hon’ble High Court of Karnataka has the jurisdiction in this matter under section 374
(2) of Code of Criminal Procedure, 1973.

Section 374 of the Code of Criminal Procedure, 1973 confers on the High Court appellate
Jurisdiction. Subject to restrictions imposed in Sections 372, 375 and 376 of the Code, as
per Section 374 of the Code, any person convicted of an offence may appeal in accordance
with the provisions provided in the Code and the Constitution of India. Further, according to
Section 380 of the Code, notwithstanding anything contained in the Code relating to appeals,
when more persons than one are convicted in one trial, and an appealable judgment or order
has been passed in respect of any of such persons, all or any of the persons convicted at
such trial shall have a right of appeal.

(ii) Appeal to High Court:

According to Section 374(2) of the Code of Criminal Procedure, subject to

restrictions mentioned in Sections 372, 375 and 376 of the Code, any person
convicted on a trial held by;

(a) A Sessions Judge or Additional Sessions Judge; or

(b) Any other Court, on a trial, in which a sentence of imprisonment for more than seven
years has been passed against him or against any other person convicted at the same trial,
may appeal to the High Court.
 Issues Raised

ISSUES RAISED

I. Whether the order of the trial court to punish the accused Rohan, a minor under
section 302 Indian Penal Code is correct?

II.Whether the appellant-accused has made out a case for conviction under Section 304
Part II instead of Section 302 of the IPC?

III.Whether there was common intention to cause the death of Suresh?

 BODY OF ARGUMENTS
I. Whether the order of the trial court to punish the accused, Rohan, a minor under
section 302 Indian Penal Code is correct?
1. The minor Rohan (A4) was 17 years old when the incident took place. Though the

facts reveal that he had a role in assaulting the deceased with a Lathi. The trial court
erred in passing an order against the minor. Heinous and serious crimes by minors
are to be dealt under Juvenile Justice (Child Care and Protection) Act 2015 by
Juvenile Justice board. Wherein it provides if the crime is committed by a child
between the age of 16 to 18 years then a preliminary assessment is to be made based
on which a decision is made whether the trial is to be conducted by the child court
under section 18 (3) or by the Juvenile Justice board under Section 15. This procedure
was not followed and the minor was tried and punished along with the other
accused. Therefore the trial court did not have the jurisdiction to try the minor ,
Rohan and pass the order under section 302 of IPC.

2. Section 15 Juvenile Justice (Child Care and Protection) Act 2015: In case of a

heinous offence alleged to have been committed by a child, who has completed or is
above the age of sixteen years, the Board shall conduct a preliminary assessment
with regard to his mental and physical capacity to commit such offence, ability to
understand the consequences of the offence and the circumstances in which he
allegedly committed the offence, and may pass an order in accordance with the
provisions of subsection (3) of section 18: Provided that for such an assessment, the
Board may take the assistance of experienced psychologists or psycho-social workers
or other experts.

3. Section 18 (3) Juvenile Justice (Child Care and Protection) Act 2015: Where the

Board after preliminary assessment under section 15 pass an order that there is a
need for trial of the said child as an adult, then the Board may order transfer of the
trial of the case to the Children’s Court having jurisdiction to try such offences.
II. Whether all the appellant-accused have made out a case for conviction under
Section 304 Part II instead of Section 302 of the IPC?
1. It is humbly submitted before this Hon’ble court that all the accused/appellants are

not liable to be punished under section 302 of IPC. All accused includes Raghav (A1),
Prakash (A2) and Raja (A3) only. Rohan being a minor has to be dealt by the Juvenile
Justice board.

2. Section 300 provides for 4 situations when culpable homicide amounts to murder

and Exceptions under section 300 of Indian Penal code provides for situations when
culpable homicide does not amount to murder. The offence in question falls under
exception 4 and therefore punishable under section 304 part II of the code.

3. Before proceeding further, it is relevant to produce Section 300 which is as under:

● if the act by which the death is caused is done with the intention of causing
death, or
● if the act 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
● if it is done with the intention of causing bodily injury to any person and
the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or
● 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.

4. Section 300 Exception 4.—Culpable homicide is not murder if it is committed

without premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the offender’s having taken undue advantage or acted in a cruel
or
unusual manner. Explanation.—It is immaterial in such cases which party offers the
provocation or commits the first assault.

5. Test for Exception 4- Held in Surain Singh V State of Punjab ( Criminal Appeal

No. 2284 of 2009) by Hon’ble Supreme Court that

Exception 4 can be invoked if death is caused
(a) without premeditation,
(b) in a sudden fight upon Heat of Passion,
(c) without the offenders having taken undue advantage or acted in a cruel or
unusual manner

To bring a case within Exception 4 all the ingredients mentioned above must be
found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is
not defined in IPC. A fight is a combat between two or more persons whether with
or without weapons. Heat of passion requires that there must be no time for the
passions to cool down. For the application of Exception 4, it is not sufficient to show
that there was a sudden quarrel and there was no premeditation. It must further be
shown that the offender has not taken undue advantage or acted in a cruel or
unusual manner. The expression “undue advantage” as used in the provision means
“unfair advantage”. It is not possible to enunciate any general rule as to what shall
be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved facts of each case.

6. Applying the above test to the facts of the current case, the following questions are

answered
A. Whether there was a sudden fight in a heat of passion?
On careful analysis of the above facts, it is clear that Suresh meeting Raghav’s
daughter inspite of the warning, itself is the provocation which resulted in a sudden
fight. Raghav being a father was in a passionate state of mind to protect his daughter
and consequently lost his temper and started abusing Suresh that triggered a chain
of events. Thus there was a sudden fight in a heat of passion and this clouded the
sober
reasoning of Prakash and Raja and urged them to do deeds which they would
otherwise not do.

B.Whether there was premeditation?

Premeditation means “Specific intent to commit a crime for some period of time,
however short, before the actual crime.” (Duhaime's Law Dictionary). Preparation
consists in devising or arranging the means or measures for the commission of
offence. The fight started as Suresh was seen near Raghav’s apartment with his
daughter. Suresh was not invited or followed by the accused. He came on his own
accord. The accused did not have a lathi with him when he confronted Suresh . The
lathi was in his brother’s house. Prakash on hearing the commotion came down with
a lathi which was grabbed by Raja and Rohan resulting in injuries in a sudden fight
which was cumulatively sufficient in the ordinary course of nature to cause death. There is
total absence of premeditation or any kind of advance plan to beat Suresh and the
incident took place in the spur of the moment.

C.Whether the accused acted in a cruel manner/unusual manner or took undue

advantage?
It is not suggested that the appellants had taken undue advantage of the situation or
have acted in a cruel or unusual manner. A lathi was used to teach Suresh a lesson. It
cannot be classified as a deadly weapon and is generally found in every house hold
for certain domestic use. The deceased expired in hospital after three days and not
immediately after the sudden fight. The blows were accidently given on the head
and the chest in spur of moment and heat of passion. Under such circumstances it
cannot be inferred that the accused intended to give blows to the vital parts of the
deceased or that the accused acted in a cruel manner.

7. Therefore the application of the above facts with the interpretation as given by

supreme court in Surain Singh V State of Punjab (Criminal Appeal No. 2284 of
2009) the ingredients of exception 4 is fulfilled and the accused are to be punished
under part II of section 304. Where, on a sudden quarrel, a person in the heat of the
moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he
would be entitled
to the benefit to this exception provided he has not acted cruelly (Surinder Kumar v. Union of
India, Chandigarh, AIR 1989 S.C. 1094).

8. Section 304 (Culpable Homicide not amounting to Murder)

Whoever commits culpable homicide not amounting to murder shall be punished

with imprisonment for life, or imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine, if the act by which the death
is caused is done with the intention of causing death, or of causing such bodily
injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten
years, or with fine, or with both, if the act is done with the knowledge that it is likely
to cause death, but without any intention to cause death, or to cause such bodily
injury as is likely to cause death.

9. In State of A.P. vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382, the

Supreme Court while drawing a distinction between Section 302 and Section 304
held as under: For the purpose of fixing punishment, proportionate to the gravity of
this generic offence, the Code practically recognises three degrees of culpable
homicide. The first is, what may be called, “culpable homicide of the first degree”.
This is the greatest form of culpable homicide, which is defined in Section 300 as
“murder”. The second may be termed as “culpable homicide of the second degree”.
This is punishable under the first part of Section 304. Then, there is “culpable
homicide of the third degree”. This is the lowest type of culpable homicide and the
punishment provided for it is, also, the lowest among the punishments provided for
in the three grades. Culpable homicide of this degree is punishable under the second
part of Section 304.

10. From the above conspectus, it emerges that whenever a court is confronted with

the question whether the offence is “murder” or “culpable homicide not amounting
to murder”, on the facts of a case, it will be convenient for it to approach the
problem in three stages. The question to be considered at the first stage would be,

a. Whether the accused has done an act by doing which he has caused the death of
another?
b. Proof of such causal connection between the act of the accused and the death,
leads to the second stage for considering whether that act of the accused amounts to
“culpable homicide” as defined in Section 299.
c. If the answer to this question is prima facie found in the affirmative, the stage for
considering the operation of Section 300 of the Penal Code, is reached. This is the
stage at which the court should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the four clauses of the
definition of “murder” contained in Section 300.
d. If the answer to this question is in the negative the offence would be “culpable
homicide not amounting to murder”, punishable under the first or the second part of
Section 304, depending, on whether the second or the third clause of Section 299 is
applicable. If this question is found in the positive, but the case comes within any of
the exceptions enumerated in Section 300, the offence would still be “culpable
homicide not amounting to murder”, punishable under the first part of Section 304,
of the Penal Code.”

11. Applying the above test in this case, the Post mortem report confirmed that Suresh

suffered injuries on head and fracture on ribs and none of the injuries were independently
sufficient to cause death while they were cumulatively sufficient in the ordinary course of
nature to cause death. Accordingly the trial court has convicted the accused under
section 300 of IPC and punished the accused under section 302 of IPC. However, the
trial court failed to appreciate the evidence that there was a sudden fight without
premeditation in a heat of passion and without any cruelty or undue advantage
which amounts to culpable homicide not amounting to murder punishable under
Section 304, of the IPC.
12. Held in Camilo Vaz vs. State of Goa, (2000) 9 SCC 1, referring to the ambit of

Section 304 of the Code, “This section is in two parts. If analysed the section provides
for two kinds of punishment to two different situations. (1) if the act by which death
is caused is done with the intention of causing death or causing such bodily injury as
is likely to cause death. Here important ingredients is the "intention"; (2) if the act is
done with knowledge that it is likely to cause death but without any intention to
cause death or such bodily injury as is likely to cause death.

13. Absence of premeditation itself means there was lack of intention. In Mahesh

Balmiki v State of M.P held i f there is evidence or suggesting facts that say that there was
premeditation on part of the accused to inflict such injury then intention would be established. The

facts also do not suggest that intention was developed on the spot. In Jagrup Singh

v. State (AIR 1552, 1981 SCR (3) 839) the accused inflicted a blow on the head of the
deceased by a gandhala causing his death. The Supreme Court refused to hold that
the accused was guilty of murder on the basis of the third clause of section 300. It
was observed that the injury was inflicted suddenly at the spur of the moment and it
could not be conclusively said that the accused intended to cause that particular
injury. Therefore, even if the injury might have been sufficient to cause death in the
ordinary course of nature, the important point emphasised by Bose, J. in Virsa Singh

v. State of Punjab (AIR 465, 1958 SCR 1495) that it must be shown that the injury
caused in fact was the injury intended to be caused by the accused.

14. Held in Camilo Vaz vs. State of Goa, (2000) 9 SCC 1 when a person hits another

with a danda on vital part of the body with such a force that the person hit meets his
death, knowledge has to be imputed to the accused. In that situation case will fall in
part II of Section 304 IPC as in the present case.”

15. Therefore, since the injuries are cumulatively sufficient in the ordinary course of

nature to cause death clause 3 of section 300 of IPC comes into operation. But in the
absence of premeditation/intention to cause such injury in a heat of passion during a
sudden fight the offence comes within the ambit of exception 4 of, section 300 of IPC.
The offence is punishable under Section 304, Part II of the IPC as in the present case
since no intention to cause such bodily injury can be attributed to the accused.
III. Whether there was common intention to cause the death of Suresh?

1. Section 34 (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. Elements/Test Of Section 34:

a.Criminal Act Done By Several Persons: – The criminal act in question must have
been done by several persons i.e. by more than one person.

b. Participation In The Criminal Act:- The participation in a criminal act of a group

is a condition precedent in order to fix joint liability and there must be some overt act
indicative of a common intention to commit an offence.

c. Common Intention:- Where parties go with a common purpose to execute a

common intention, each and everyone becomes responsible for the acts of each and
every other in execution and furtherance of their common purpose, as the purpose is
common so must be the responsibility.”

3. Common intention implies a pre-arranged plan. Pre-arranged plan means prior

concert or prior meeting of minds. Criminal act must be done in concert pursuant to
the pre-arranged plan. Common intention comes into being prior to the commission
of the act in point of time. Held in [Ramachander v. State of Rajasthan, 1970 Cr.L.J.
653] where there is no indication of premeditation or of a pre-arranged plan, the
mere fact that the two accused were seen at the crime scene could not be held
sufficient to infer common intention.

4. Held in State of Rajasthan vs. Shobha Ram, (2013) 14 SCC 732- Insofar as

common intention is concerned, it is a state of mind of an accused which can be

inferred objectively from his conduct displayed in the course of commission of crime
and also from prior and subsequent attendant circumstances. On careful analysis of
the facts it is clear that the role of Raghav was limited to abusing Suresh. He did not
pick the lathi
and give blows to Suresh neither did he bring the lathi. We also have presented our
case that there was no premeditation as it was not that Suresh was invited near the
house or followed by the all accused. He happened to see Manya and Suresh near his
house and subsequently the entire incident took place. Hence there was no meeting
of minds or common intention to cause bodily injury which is cumulatively
sufficient in the ordinary course of nature to cause death.

5. Therefor Raghav had no physical participation or mental element in the sudden

fight to cause injury to Suresh. The trial court has wrongly convicted him under
section 302 of IPC read with S-34 of IPC. Prakash and Raja are the only accused liable
for causing injury which lead to Suresh’s death. Prakash role was limited to getting
the lathi from his house. Even Rohan Being a minor has been wrongly punished
under section 302 of IPC.

Prayer
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, the
Appellant humbly submits that this Hon’ble Court be pleased to:

1. Call for records from the trial court and set aside the judgement and order of
the trial court against all the accused.

2. Pass an order of acquittal, acquitting Mr. Raghav of the charge of murder.

3. Pass an order for retrial of Rohan, the minor as per Juvenile Justice (Child care
and Protection) Act 2015.

4. Pass an order to set aside the punishment of Prakash and Raja under section
302 of IPC to section 304 part II.

5. Pass such other orders that this Hon’ble Court deems fit in the
circumstances of case by allowing this appeal in the interest of
justice.
 All of which is most humbly and respectfully submitted.

Place:
Date:

S/d
(COUNSELS ON BEHALF OF THE APPELLANTS)