ROLL NO.

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IN THE COURT OF SESSIONS JUDGE, PUNE

AT PUNE

Criminal Case No. __/2022

FIR Charged u/s 34, 326 A, 354 D of I.P.C.

IN THE MATTER OF

The State of Maharashtra ………..Complainant

Versus

1. Ajay

2. Nilesh ………Accused

Submission before the Hon’ble Session Judge, Pune

At Pune

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 Memorandum on behalf of Accused

Table of Contents

1) List of Abbreviations 3

2. Index of Authorities 4

a. Cases Cited

b. Books and Treatises

c. Legal Databases

d. Legislations

3. Statement of Jurisdiction 6

4. Statement of Facts 7

5. Statement of Issues 8

6. Summary of Arguments 9

7. Arguments Advanced 11

8. Prayer 16

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 List of Abbreviations

AIR All India Reporter

Cri.L.J Criminal Law journal

CrPC Crimial Procedure Code

IPC Indian Penal Code

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

IT Information Technology

RTI Right to Information

CPC Civil Procedure Code

v/s Verses

r/w Read With

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 Index of Authorities

Cases Cited

 Basdevv. State of Pepsu, AIR 1956 SC 488

 Bherusinghv.State,1956Madh.BLJ905
 Brendv. Wood, (1946)62TLR462;
 C.Mageshv. Stateof Karnataka,AIR 2010SC 2768, 49;
 DharamPalv.StateofHaryana,AIR1978SC1492.
 GaribSinghv.StateofPunjab,1972CrLJ1286.
 GhureyLalv.StateofUPCriminalAppealNo.155of 2006
 HanumanPrasadvsStateofRajasthan,(2009)1 SCC507.
 HarbansNoniavsStateofBihar,AIR1992SC125:1992CrLJ105.
 Latasinghv.StateofUttarPradesh,AIR2006SC2522
 MehbubShahvsKingEmperor,AIR1945PC148.
 Mepa Dana,(1959)BomLR269
 Nandu&DhaneshwarNaikv.TheState,1976CrLJ250

Books and Treatises:

Text Book on Indian Penal Code , K.D. Gaur

R.V . Kelkar’s Criminal Procedure, K.N Chandrashkharan Pillai

Indian Penal Code,1860, Bare Act

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Information Technology Act,2000, Bare Act

Code of Criminal Procedure1973, Bare Act

Legal Databases :

http://www.findlaw.com

http://www.scconline.com

http://www.manupatra.co.in

http://www.judis.nic.in

https://thewire.in

http://scroll.in

http://www.livelaw.in

Legislations:

Code of Criminal Procedure1973

Indian Penal Code,1860

Information Technology Act,2000

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 Statement of jurisdiction

The Hon’ble Session Court has the jurisdiction to hear and adjudicate over the
matter under section 26 of Criminal Procedure Code 1973 as follows:
.Courts by which offences are triable. Subject to the other provisions of this Code,-
(a) any offence under the Indian Penal Code (45 of 1860 ), may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such
law, be tried by such Court and when no Court is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.

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 Statement of Facts

1. Sakshi and Ajay are old friends, on valentine day Ajay proposed Sakshi
for marriage and Sakshi told him to speak to her parents regarding the same.

2. On 25th February 2021, Ajay approached her parents with the proposal.
However, they rejected his offer and warned him and sakshi to stay away from
each other. Thereafter ajay follow Sakshi and contacted her personally, on
phone and through internet, believing that all her actions were under pressure
from her parents. After this incident sakshi parents again warned ajay to stay
away from her.

3. Ajay went to Nilesh (Accused No.2) his friend in and narrated the whole
thing. Nilesh aged 40, Nilesh suggested a plan to Ajay that he should take
Sakshi to the temple for marrying her without information to her parents and if
she refused, Nilesh will threaten her with a bottle of acid to pressurise her to
come with them to the temple.

4. On 25th March, 2021 as per the plan, finding Sakshi alone on the road, Ajay and Nilesh. Ajay
approached Sakshi and asked her to accompany him to the temple so that they can get married. On
Sakshi’s refusal, Nilesh carrying the bottle of acid, threatened Sakshi. Ajay started dragging her into
the car. Sakshi started shouting loudly. To teach a lesson to Sakshi, Nilesh opened the bottle and
threw the acid on her face and then both Nilesh and Ajay fled away in the car belonging to and
driven by Nilesh leaving the girl in immense pain. The girl was taken to the hospital by some
passerby.

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 Statement of Issues

ISSUE I

WHICH OFFENCE ACCUSED HAVE COMMITTED

ISSUE II

WHETHER THE ACCUSED ARE GUILTY OF CYBER CRIME

ISSUE III

WHETHER THERE EXISTS COMMON INTENTION AMONG THE

ACCUSED

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 SUMMMARY OF ARGUMENTS

ISSUE I –

WHICH OFFENCE ACCUSED HAVE COMMITTED

It is humbly submitted before the Hon’ble Sessions Court that the accused
had not committed any offence under Section 326A r/w Section 34 of IPC as
(1.1) There was absence of the requisites of committing a criminal offence
under Sec. 326A i.e. (1.1.1) there was absence of actus reus and (1.1.2) there
was absence of mens rea.(1.1.3) Section 326A can be attracted only when
the act is done voluntarily.

ISSUE II

WHETHER THE ACCUSED ARE GUILTY OF CYBER CRIME

It is humbly submitted before the Hon’ble Sessions Court that ( 2.1)Offences

and actions of accused do not constitute any offence u/s 66A of I.T. Act

2000.

It is humbly submitted before the Hon’ble Sessions Court that

(2.1.2.)0ffences actions of accused do not constitute any offence u/s 65 of I.T.

Act 2000 (2.1.3) r/w section 354D of IPC.

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 ISSUE III –

WHETHER THERE EXISTS COMMON INTENTION AMONG

THE ACCUSED

It is humbly submitted before the Hon’ble Sessions Court that there existed no common
intention between Ajay and Nilesh as per the Section 34 of the IPC, 1860 as, (3.1) Ajay and
Nilesh had no intention of committing such an act and initially only Ajay and nilesh did not
agree to that.

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 Arguments advanced

Issue - 1

WHICH OFFENCE ACCUSED HAVE COMMITTED

It is humbly submitted before this Hon’ble Sessions Court that to constitute a criminal
offence, two essential elements are required i.e. actus reus and mens rea. 1.1
ABSENCE OF REQUISITE OF ACTUS REUS AND MENS REA “ At the most
fundamental level, criminal law is based around a single Latin phrase: “Actus non facit
reum nisi mens sit rea”, which translates to “an act does not make a person guilty
unless the mind is also guilty”. Evidence must be tested for its inherent consistency and
inherent probability of the story. In the instant case, the entire prosecution story is
unreliable.It is a well settled principle in common law that an offence is constituted by
the presence of the actus reus as well as mens rea. The requirement of mens rea can
be dispensed with only if the statute excludes mens rea explicitly or by necessary
implication. It imposes a burden on the State to prove that the defendant “performed
the relevant actus reus with the requisite mens rea in the crime charged”. Hence, the
prosecution needs to prove that a prima facie case exists with regard to the mens rea
as well. There is nothing in the facts to give a slight hint that Ajay threw acid or had any
intention to throw acid on sakshi. He was in true love with Sakshi, and could never think
of doing such an act.And Nilesh was not having intention to throw acid on her.

1. Magesh v. State of Karnataka, AIR 2010

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

1.1.3. AS PER SECTION 326 A WHOEVER VOLUNTARILY CAUSING GRIEVOUS HURT

BY USE OF ACID ETC. – Whoever causes permanent or partial damage or deformity to, or
bums or maims or disfigures or disables, any part or parts of the body of a person or
causes grievous hurt by throwing acid on or by administering acid to that person, or by
using any other means with the intention of causing or with the knowledge that he is likely
to cause such injury or hurt, shall be punished with imprisonment of either description for a
term which shall not be less than ten years but which may extend to imprisonment for life,
and with fine; Provided that such fine shall be just and reasonable to meet the medical
expenses of the treatment of the victim; Provided further that any fine imposed under this
section shall be paid to the victim. “A person is said to cause an effect “voluntarily” when he
causes it by means whereby he intended to cause it, or by means which, at the time of

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employing those means, he knew or had reason to believe to be likely to cause
it.”9According to sec. 39 of IPC 1860, a person is said to cause an effect voluntarily, when
he causes it (i) intentionally, or (ii) he knew or had reasons to believe, to be likely to cause
it. It is humbly submitted before the Hon’ble Court that my clients did not cause the act
voluntarily as firstly he had no intention of causing harm to the victim and secondly they
had no reasons to believe that such incident would occur as it happened unintentionally.
Moreover my clients did not commit such an act.

1.2. SECTION 34 OF THE INDIAN PENAL CODE 1860.

It is humbly submitted before the Hon’ble Sessions Court that Section 34 of the Indian
Penal Code recognizes the principle of vicarious liability in criminal jurisprudence. A bare
reading shows that the section could be dissected as follows:

1. Criminal act is done by several persons;

2. Such act is done in furtherance of the common intention of all; and

3. Each of such persons is liable for that act in same manner as it if it were done by him
alone.

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

It is humbly submitted before Honourable Court that this case strongly comes under the
horizon of the new words which were introduced into the section 34 in 1870 and intention of
accused must be studied very carefully as stated in facts as the accused can’t be liable
only because at the time of that particular act of acid attack he just wanted to take her with
him for marriage and Sakshi already responded him as yes on whats app messages so it
was implied for him that she would come but she started shouting. And accused no. 2 was
there with accused no. 1 but intention of accused no 2 was only to threaten her not to throw
acid on her, Sakshi instigated Accused No. 1 and Accused No2 as she started shouting
loudly.

In Pandurang vs. State of Hyderabad, the court had in mind the ultimate act done in
furtherance of common intention. It is submitted that the ultimate act in this case i.e. act of
acid attack was not in the furtherance of common intention astated facts it has been made
clear that Ajay was devoid of any such intention. He made it very clear that the acid bottle
is just a tool to threaten and no further harm must be caused.

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Hence, it is humbly submitted that there was no presence of common intention on the part
of Ajay and Nilesh in the act of throwing acid on the face of victim and hence the Accused-1
& Accused - 2, so they can’t be charged under section 34 and hence can’t be held guilty
under section 326A of IPC. It just happened in a hit of moment. But there was no common
intention at all.

ISSUE II

WHETHER THE ACCUSED ARE GUILTY OF CYBER

(2.1) It is humbly submitted before the Hon’ble Sessions Court that

Offences and

Actions of accused do not constitute any offence u/s 66A of I.T. Act

2000.

In reference to Shreya Shinghal v/s Union of India writ

Petition (Criminal) no 167 of 2012 decided on 24/03/2015, the

Provisions of sec. 66A of the I.T. Act 2000 have been striked off being

Vague.

(2.1.2) It is humbly submitted before the Hon’ble Sessions Court that Offences
and

Actions of accused do not constitute any offence (2.1.3) u/s 65 of I.T. Act, 2000

(2.2.2) r/w section 354D of IPC.

( 2.2.1 ) Because for application of section 65 of IT Act, 2000 for tempering with computer
sources intention or knowledge to conceal , destroys or alters Tampering with computer
source documents.-Whoever knowingly or intentionally conceals, destroys or alters or
intentionally or knowingly causes another to conceal, destroy, or alter any computer source
code used for a computer, computer programme, computer system or computer network, when
the computer source code is required to be kept or maintained by law for the time being in
force, shall be punishable with imprisonment up to three years, or with fine which may extend
up to two lakh rupees, or with both. Explanation.--For the purposes of this section, "computer
source code" means the listing of programmes, computer commands, design and layout and
programme analysis of computer resource in any form. There was no any intention to tamper
with any form of information to alter or conceal any form of computer source.

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 1. ( 2.2.2 ) as per section 354D IPC follows a woman and contacts, or attempts to
contact such woman to foster personal interaction repeatedly despite a clear
indication of disinterest by such woman; or

2. monitors the use by a woman of the internet, email or any other form of electronic
communication, commits the offence of stalking;

Provided that such conduct shall not amount to stalking if the man who pursued it proves
that—

1. it was pursued for the purpose of preventing or detecting crime and the man accused
of stalking had been entrusted with the responsibility of prevention and detection of
crime by the State; or

2. it was pursued under any law or to comply with any condition or requirement
imposed by any person under any law; or

3. in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with
imprisonment of either description for a term which may extend to three years, and shall
also be liable to fine; and be punished on a second or subsequent conviction, with
imprisonment of either description for a term which may extend to five years, and shall also
be liable to fine. Criminal Law (Amendment) Act, 2013

But 354D of IPC applies only when there is a clear indication of disinterest by such
woman an d in this case we have observed that consent of Sakshi was there and she also
wanted to marry with Ajay as we have whatsaap screenshot of their chats so it doesn’t
amount to stalking.

Hence, it is humbly submitted that there was no presence of stalking on the part of Ajay
and Nilesh in the act of to asking her for marriage because her consent was already there
through whats aap chats and also she never denied Ajay expensive gifts and there was
mutual communication in between them for a long time, and there was always a clear
indication of interest from Sakshi side. Hence the Accused-1 & Accused - 2, so they can’t
be charged under section 354D of IPC and hence can’t be held guilty under section 354D
of IPC.

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 ISSUE III –

WHETHER THERE EXISTS COMMON INTENTION AMONG THE

ACCUSED

It is humbly submitted before the Hon’ble Sessions Court that there existed no common
intention between Ajay and Nilesh as per the Section 34 of the IPC, 1860. SECTION
34 OF INDIAN PENAL CODE,1860 The Section 34 of the Indian Penal Code, 1860
states; “When a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it
were done by him alone.

ABSENCE OF COMMON INTENTION It is humbly submitted that the accused Ajay is

being dragged into the picture for no justifiable cause and for no fault, participation or
involvement of his in the alleged act in question. It is submitted that neither the accused had
any intention with Nilesh nor did he act in concert with Nilesh to commit such act. ‘Common
intention’ implies a preconcerted plan and acting in concert pursuant to the plan. Common
intention comes into being prior to the commission of the act in point of time, which need not
be a long gap. There was no evidence that prior to the incident there was any common
intention shared by both the accused. The said intention did not develop at the time of the
incident as well and therefore, it was held that Sec. 34 of the Indian Penal Code cant be
applicable here.Therefore, it is humbly submitted that there was no common intention
between Ajay and Nilesh, in fact he did not have any knowledge of any such intention of
Nilesh of throwing acid on Sakshi as Anil strictly said no for the use of acid to which Nilesh
agreed. Hence, in absence of common intention he must not be held liable under S.34 of the
IPC.ot be resorted to hold accused guilty of any offence.

THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION In view of the

phraseology of S.34 existence of common intention is not enough, the criminal act
impugned to attract S.34 must be committed in furtherance of common intention. The
section operates only when it is found that the criminal act done by an individual is in
furtherance of the common intention and not without it. 30 The words ‘in furtherance of the
common intention of all’ in S.34, IPC do not require that in order that the section may apply,
all participants in the joint acts must either have common intention of committing the same
offence or the common intention of producing the same result by their joint act be
performed. It is true that no concrete evidence is required to prove a common intention
between two people to commit an act.

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 PRAYER
IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND
AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS
THAT THE HON’BLE SESSION COURT BE PLEASED:

1. To declare that Mr.Ajay and Mr. Nilesh is not guilty of the crime of causing
grievous hurt by use of acid attack.

2. To declare that permission shall not be given to the State to add a charge of
Section 366, IPC against the accused.

3. The offences charged u/s 34,,326 A,354D , of IPC not be proved and hence acquittal
of charges against my clients
4. Grant Compensation to the Victim under ‘Victim Compensation Scheme’ under
section 357 B of Crpc 1973
5. Any other just and equitable order may be passed in favour of the said Accused

For This Act of Kindness, the Accused Shall be Duty Bound Forever Pray

Date ……………………

Place …………………..

Sd/
(Counsel for……… )

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