MEMORIAL

IN THE PUNJAB AND HARYANA HIGH COURT AT CAPITAL

COMPLEX, SECTOR 1, CHANDIGARH

CRIMINAL COMPLAINT NO. _______ OF 2021

1) Sher Shah

2) Gajendar Shah (Son of 1st appellant)

3) Suri Shah (Brother of 1st appellant) ) …Appellant

Versus

State Of Haryana

(Through Jhajjar district Police Station) ) …Respondent

 TABLE OF CONTENTS

Table of contents…………………………………………………………2

Index of Authorities………………………………………………………3

1) Judicial Decisions

2) Books

3) Internet Resources

Statement of Jurisdiction………………………………………………..4

Statement of Issues………………………………………………………..5

Statement of Facts…………………………………………………………6

Summary of Pleadings…………………………………………………....8

Body of Pleadings………………………………………………………….10

Prayers…………………………………………………………………………17.

Exhibits / Appendices………………………………………………….
 INDEX OF AUTHORITIES

1. BOOKS

i) The Constitution of India

ii) Indian Penal Code

iii) Criminal Procedure Code

2. INTERNET RESOURCES

i) www.indiankanoon.org

ii) https://main.sci.gov.in
 STATEMENT OF JURISDICTION

The petitioner has invoked the writ jurisdiction of this Court

under Article 226[1] and Article 227 [2] of the Constitution

of India and the inherent powers of this Court under Section

374(2) of CrPC [3] and Section 482 of CrPC [4]

 STATEMENT OF CHARGES

1. Whether deceased coming to house of Appelent 1?

2. Whether Appelent 1 told to deceased not to come to his home

on his absence?

3. Whether deceased again repeating this behavior even after

instructing not to do so?

4. Whether deceased given debt of amount Rs. 20,000 to

Appelent 3?

5. Whether Appellant 3 called deceased on Monday, 8th August

2010 to collect money on that evening?

6. What time deceased arrived to Appellant 1 home?

7. Whether any of the Appellant were informed is arrival?

8. How all Appellant reached to incident area?

9. How all Appellant reached to incident area?

10. What made annoy and loss temper of all appellant?

11. Who brought lathi?

12. Whether Appellant 3 is drunk on that incident date?

13. How or which type of injury deceased had?

14. Which instrument is used to hit deceased?

15. How many blows/ injuries took place on deceased body?

16. Who performed bodily injuries on deceased?

17. How the injuries on the deceased took place?

18. What are sequence of act by different appelent took

place?

19. Lathi can be considered has weapon?

20. Whether the death of the deceased is suspicious or not?

21. Whether any other person has been injured in fire.

22. Which type of injury is caused to the deceased?

23. How many days did the deceased survived after the

injuries?

24. Through whom the present complaint is lodged.

25. After how many days the complaint of death was

registered?

26. Under which section the complaint is lodged?

 STATEMENT OF FACTS

1. The complainant states that the marriage was solemnized

between the deceased and the accused no. 1 as per Hindu

rites & ritual on 15th January 2004. The complainant further

states that the said marriage was an arranged marriage.

2. The

3.
 SUMMARY OF PLEADINGS

1. ABC.

2. XYZ?
 BODY OF PLEADING

The Sher Shah (Appellant 1) was a farmer who lived with his

family consisting of his wife, Sobti, son Gajendar

Shah(Appelent 2) and a daughter Naina. Sher Shah’s brother,

Suri Shah(Appelent 3), also lived in the same household.

Appelent 3 was used to drinking and gambling and owed a

debt of Rs. 20,000 to Karim(deceased). Karim worked as a

system operator at a computer Centre in Jajhhar Dist.,

Haryana and lived in the town. His village was at a distance of

12 kms. from his workplace which he ordinarily visited on

Saturdays and Sundays.

Whenever Karim demanded his money, Suri Shah showed his

helplessness but never denied to pay off his debt.

1. Karim used to meet Naina on the weekends when her father

was not at home on the excuse that he had come to collect the

money.
Sher Shah did not like it and told Karim many a times not to

visit his home in his absence. He also scolded his daughter for

meeting Karim but Karim did not stop visiting Naina.

2. During the day on Monday, 8th August 2010, Karim

received a phone call from Suri Shah inviting him to come that

evening to collect his debt.

Karim went to their house around 8.30 P.M. The members of

Naina’s family had finished their dinner and were preparing to

go to sleep. On hearing some whispering voices coming from

the backyard of their house, Sher Shah (Appelent 1) with his

brother Suri Shah(Appelent 3) and son Gajendar Shah

(Appelent 2) went there to investigate.

They saw Karim talking with Naina. Sher Shah (Appelent 1)

lost his temper and started abusing Karim. Gajendar Shah

(Appelent 2) brought a lathi from inside and gave a blow to

Karim on the leg. Then Suri Shah(Appelent 3) grabbed the

lathi from Gajendar Shah (Appelent 2) and started beating

Karim giving blows on his head and chest.

3. On hearing the hue and cry, other villagers came to the

scene. They found Suri Shah(Appelent 3) giving blows to Karim

while the other two (Appelent 1 & 2) were shouting abuses on

Karim.

Karim was bleeding from the head and became unconscious.

He was taken to the hospital by the villagers where he died

three days later without regaining consciousness.

4. The post-mortem report confirmed that Karim suffered

injuries on the head and fractures of three ribs.

There were many concussions on different parts of his body.

There was much loss of blood. While none of the injuries

independently was sufficient to cause death, the

cumulative result was sufficient in the ordinary course of

nature to cause death.

5. FIR was registered against Suri Shah(Appelent 3), Gajendar

Shah(Appelent 2) and Sher Shah(Appelent 1) under Section

307 read with S. 34 of the Indian Penal Code.

Three days later when Karim died, it was changed to Section

302 r/w 34 IPC.

The session court charged and convicted all the three accused

persons under Section 302 r/w 34 of the IPC and sentenced

them to life imprisonment for the murder of Karim.

6. The accused persons pleaded grave and sudden provocation

in their defence in session court.

They also pleaded that the prosecution had failed to prove

existence of common intention of all the three accused to kill

Karim. In the absence of proof of common intention, they

cannot be convicted under Section 302 r/w 34 IPC.

In order to overrule the session court given conviction for

Section 302 r/w 34 IPC, prosecution had relied upon the

following circumstances and incidents, as disclosed from the

evidence of Sher Shah (Appelent 1), Gajendar Shah (Appelent

2) and Suri Shah (Appelent 3)

1. Karim used to meet Naina on the weekends when her father

was not at home on the excuse that he had come to collect

the money.

2. Sher Shah told to Karim many times not to visit his home

in his absence. As Sher Shah did not like the approach of

coming to his home during his absence.

3. Karim did not stop visiting Naina even after repeated talks

with Appelent 1.

4. It may also believed of Appelent 1, Appelent 2 and Appelent

3 that the accused had not made any attempt to murder

Karima as there was no intention to cause death.

5. Section. 319 Actus reus exist there is no Mens rea

Link-

https://main.sci.gov.in/supremecourt/2017/28160/28160

_2017_33_1501_23944_Judgement_16-Sep-2020.pdf

6. In JUGUT RAM vs THE STATE OF CHHATTISGARH (in this

high court), The High Court on appreciation of evidence has

come to the conclusion that the assault was not

premeditated but had taken place in a heat of passion

due to a land dispute. If the appellant had the intention,

nothing prevented him from further assaulting the

deceased. Nonetheless it maintained the sentence of the

appellant under Section 302, IPC because death had taken

place pursuant to the assault by him.

7. A lathi is a common item carried by a villager in this

country, linked to his identity. The fact that it is also

capable of being used as a weapon of assault, does not

make it a weapon of assault simpliciter. In a case like the

present, of an assault on the head with a lathi, it is always

a question fact in each case whether there was intention to

cause death or only knowledge that death was likely to

occur. The circumstances, manner of assault, nature and

number of injuries will all have to be considered

cumulatively to decipher the intention or knowledge as the

case may be. We do not consider it necessary to dilate on

the first principles laid down in this regard in Virsa Singh

vs. The State of Punjab, 1958 SCR 1495, which stand well

established. Suffice it to notice from precedents that in

Joseph vs. State of Kerala, (1995) SCC (Crl.) 165, the

appellant dealt two blows on the head of the deceased. The

deceased died two days later. The post mortem report found

lacerated injury on the head and internal examination

revealed fracture to the occipital bone extended up to the

temporal bone. The High Court convicted the appellant

under Section 302 IPC holding that the injury caused by the
lathi was sufficient to cause death of the deceased. This

Court observed as follows:

“3. ….The weapon used is not a deadly weapon as rightly

contended by the learned counsel. The whole occurrence

was a result of a trivial incident and in those circumstances

the accused dealt two blows on the head with a lathi,

therefore, it cannot be stated that he intended to cause the

injury which is sufficient (sic). At the most it can be said

that by inflicting such injuries he had knowledge that he

was likely to cause the death. In which case the offence

committed by him would be culpable homicide not

amounting to murder. We accordingly set aside the

conviction of the appellant under Section 302 IPC and the

sentence of imprisonment for life awarded thereunder.

Instead we convict the appellant under Section 304 Part II

IPC and sentence him to five years’ RI.” 8. In Chamru

Budhwa vs. State of Madhya Pradesh, AIR 1954 SC 652, the

appellant dealt a blow on the head of the deceased with a

lathi and which proved fatal. The injury was medically

opined sufficient in the ordinary course to cause death.

Conviction under Section 302, IPC followed. This court

observed as follows

“5. It now remains to consider whether the offence which he

committed falls within the first part or the second part of

Section 304 of the Indian Penal Code. When the fatal injury

was inflicted by the appellant on the head of the deceased

by only one blow given in the manner alleged by

the prosecution it could as well be that the act by

which death was caused was not done with the intention

of causing death or of causing such bodily injury as

is likely to cause death. The act appears to have been done

with the knowledge that it was likely to cause death,

but without any intention to cause death or to cause

such bodily injury as is likely to cause death

within the meaning of Part II of Section 304 of the Indian

Penal Code. 6. We accordingly allow the appeal to this

extent that the conviction of the appellant under Section

302 of the Indian Penal Code and the sentence of

transportation for life awarded to him will be set aside, but

the appellant will be convicted of having committed the

 offence under Section 304 Part II of the Indian Penal Code

and will be sentenced to seven years’ rigorous

imprisonment.”

8. In Gurmukh Singh vs. State of Haryana, (2009) 15 SCC

635, the deceased died three days later after an assault on

the head with a lathi opined to be sufficient in the ordinary

course of nature to cause death. Holding that the assault

was made on the spur of the moment without premeditation

the conviction was altered from one under Section 302 to

Section 304 Part II and a sentence of seven years was

handed. Similarly in Mohd. Shakeel vs. State of A.P., (2007)

3 SCC 119, the appellant had caused only one injury and

had suffered injury himself also. Altering the conviction

from under Section 302 IPC to 304 Part II, the appellant

was sentenced to the period undergone since 1999. 10. We

do not consider that Laltu Ghosh (supra) and S. Rayappa

(supra), with regard to credibility of related witnesses, have

any relevance to the issue in question being decided by us.

9. We accordingly alter the conviction of the appellant from

Section 302 IPC to Section 304 Part II, IPC. The appellant is
 in custody since 2004. He has already undergone the

maximum period of sentence prescribed under the same.

The appellant is, therefore, directed to be set at liberty

forthwith unless wanted in any other case.

10.  The circumstances, manner of assault, nature and

number of injuries will all to be considered cumulatively to

decipher the intention or knowledge as the case may be.

11. We do not consider it necessary to dilate on the first

principles laid down in this regard in Virsa Singh vs. The

State of Punjab, 19
 PRAYERS

Clause (b) of s. 299 corresponds with cll. (2) and (3) of s. 300. The
distinguishing feature of the mens rea requisite under clause (2) is
the knowledge possessed by the offender regarding the particular
victim being in such a peculiar condition or state of health that the
intentional harm caused to him is likely to be fatal, notwithstanding
the fact that such harm would not in the ordinary way of nature
be sufficient to cause death of a person in normal health or
condition. The 'intention to cause death' is not an essential
requirement of clause (2). Only the intention of causing the bodily
injury coupled with the offender's knowledge of the likelihood of
such injury causing the death of the particular victim, is sufficient
to bring the killing within the ambit of this clause This aspect of
clause (2) is borne out by illustration (b) appended to s. 300.
https://main.sci.gov.in/supremecourt/2017/28160/28160_2017_

33_1501_23944_Judgement_16-Sep-2020.pdf

DefPt

https://main.sci.gov.in/supremecourt/2017/28160/28160_2017_

33_1501_23944_Judgement_16-Sep-2020.pdf

1. The appellant was the aggressor. The deceased succumbed 

on the spot.   

The intention to cause death is apparent from the

assault made on the head, a sensitive part of the human bo

dy.

Appelent 3 that the accused had not made any attempt to

extinguish the fire or helped Leena in doing so and had not shown

any initiative to call a doctor.

299

https://indiankanoon.org/doc/305371/

300

https://indiankanoon.org/doc/626019/

https://www.mondaq.com/india/crime/988662/difference-

between-murder-and-culpable-homicide

Defendant side

https://main.sci.gov.in/supremecourt/2017/28160/28160_2017_

33_1501_23944_Judgement_16-Sep-2020.pdf

https://indiankanoon.org/doc/1296255/