BEFORE THE COURT OF SESSIONS

AT SRINAGAR
S.C. NO…… OF 2022
UT of J & K
(PROSECUTOR)

v.

Baseer & ors

(DEFENCE)

FOR OFFENCES CHARGED UNDER SECTION 34 OF THE INDIAN PENAL

CODE 1860
UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

Submitted By
Asif Ahmad Dar
E.No : 16042122006
BALLB 10th Sem.

MEMORANDUM ON BEHALF OF THE DEFENCE

 Table of Contents.

List of Abbreviations.

Index of Authorities.

Table of Cases.

Books

Websites

Statutes.

Statement of Jurisdiction.

Statement of Facts.

Statement of Charge.

Summary of Arguments.

Prayer.
 List of Abbreviations.

AIR All India Reporter

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

DW Defence Witness

Ed. Edition

IPC Indian Penal Code

IC Indian Cases

Mad Madras High Court

n. Foot Note no.

p. Page No.

PW Prosecution Witness

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

Sec. Section

v. Versus.
 Index of Authorities.

Cases.
 Parichhat v. state of Madhya Pradesh, (1972) 4 SCC 694.
 Zabar Singh v. State of Uttar Pradesh AIR 1957 SC 465
 State of Uttar Pradesh v. Sahrunnisa AIR 2009 SC 3182
 Jumman v. State of Punjab AIR 1957 SC 469

Books.
Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

S.N.Mishra ,Indian penal code.

Criminal procedure code by S.N.Mishra

Statutes.
1. The Code of Criminal Procedure, 1973.

2. The Indian Evidence Act, 1872.

3. The Indian Penal Code, 1860.

Websites.
1. AIR Online.

2. WestLaw India.

3. Manupatra.

4. SCC Online.

5. AdvocateKhoj.
 Statement of Jurisdiction.
The Hon‟ble Court has jurisdiction to try the instant matter under Section 177 and
209 of Code of Criminal Procedure, 1973.

Section 177:
‘177. Ordinary place of inquiry and trial

Every offence shall ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed.‟

Read with Section 209:

‘ 209. Commitment of case to Court of Session when offence is triable

exclusively by it

When in a case instituted on a police report or otherwise, the accused appears or

is brought before the Magistrate and it appears to the Magistrate that the offence
is triable exclusively by the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to
custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any,
which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of
Session.‟
 Statement of Facts.
Three friends Ahmad ,Aashiq and Baseer used to reside in vicinity to each other in

a mohalla of khanyar Srinagar . They were all of the same age and used to go to

college together . Quite often the family members of the three friends used to send

the three friends to a fruit and vegetable shop to fetch fruits and vegetables for

domestic purposes . They used to pay for purchases as per market rates .

One day the vegetable cum fruit seller had packed decayed vegetables and

watermelons for the three friends. Next day all the three friends reported to each

other that they were rebuked and abused by the family members for purchasing

decayed fruits and vegetables .The three friends were very much aggrieved

because of the said action of the fruit seller . Further it was revealed by the three

friends to each other that all the family members of the three friends who had

consumed water melons had fallen ill and were hospitalized because of allergies

and infections .

Keeping all above aspects in view the three friends resolved together to give a

heavy beating to the fruit seller . At around 9 `o clock in the morning the three

friends while they were also going to college ,the three friends decided to teach a

lesson to the fruit cum vegetable seller . While they were perceeding to vegetable

seller whose shop was close to bus stand the brother of Ahmad met them on the
way and asked Ahmad to come along with him to another shop on the way for

purchase of his shirt.

The other two friends continued to proceed towards the shop of the vegetable seller

,while Ahmad shouted at them that he will be joining them after a while On

reaching the shop of vegetable seller, Ashiq started abusing and rebuking the

vegetable seller for selling them decayed vegetables and fruits on the previous

day .The vegetable seller who was cutting a water melon with a knife at that

moment came down from his shop along with a knife in a provoking

manner .Baseer came from behind and gave a blow on the back of the vegetable

seller .The vegetable seller turned round and raised his knife towards

Baseer .Aashiq caught hold of the hand of the vegetable seller to snatch the knife

from his hand .Aashiq also caught his leg and the shopkeeper fell down with the

knife which got stuck and injected in his heart .

The adjacent fellow shopkeepers rushed to the spot and the shopkeeper who had

got the grevious hurt in his chest and was bleeding was taken to Rainawari hospital

where he was declared “ BROUGHT DEAD”

.Ahmad reached the spot while the shopkeeper had fallen down . The autopsy

report reveals that the sharp edged knife has penetrated deep into the left side of
chest caused deep wound in the heart, resulting in rupture of heart valve which has

proved fatal .

On the basis of above police station khanyar registered an F.I.R U/S 302,OF Indian

penal code read with section 34 and 120 B OF Indian Penal code .

Prepare briefs for presentation before the session judge at sringar and argue the

case on behalf of the two sides .

1. Whether Section 34 of IPC is applicable ?

2. Whether there was any conspiracy to kill or to cause grevious hurt or hurt to

the deceased

3. Whether the two friend were acting were acting in exercise of of right of

private defence and as such liable for any punsihment ?

4. Whether Section 302 is the appropriate provision of IPC to deal with the

case?
 STATEMENT OF CHARGE.

Mr. Baseer & ors have been charged under Section 34 the Indian Penal

Code, 1860.

Section 34. 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.
 Summary of Arguments.

ISSUE-I

Whether Section 34 of IPC is applicable.

It is humbly submitted before this Hon’ble Court that the Section 34 of IPC is not

applicable in this case, because common intention can be formed where there has

been a prior meeting of minds.

In this Case common intention even if presumed was for giving a beating and not

to kill, as such, Section 34 has wrongly been arrayed with the charge of murder.

At the most it can be read with the section dealing with hurt or grievous hurt.
 ARGUMENTS ADVANCED
ISSUE-I
Whether Section 34 of IPC is applicable.
 It is humbly contended before this Hon’ble Court that the Section 34 of IPC

is not applicable in this case. According to Ingredient no. 3 of section 34 of

IPC, there must be participation of all in the commission of the offence in

furtherance of that common intention. In this case there is the participation

of only two friends namely Baseer and Ashiq.

It was held in the case of Parichhat v. state of Madhya Pradesh, (1972) 4 SCC

694.

In Zabar Singh v. State of Uttar Pradesh AIR 1957 SC 465 the SC held that for

application of section 34 it is essential that the Court find that the accused shared

with others a common intention to commit a crime and participate in its

commission. If there is no clear and acceptable evidence on record of

circumstances from which a previous concert between him and other persons,

known or unknown, and his participation in a joint criminal act can be reasonably

inferred, conviction with the aid of Section 34 is not justified.

 For application of Section 34 of IPC the accused should share common

intention to commit the offence and in this instant case there was no such
 common intention at all to murder the Vegetable cum fruit seller. The

accused persons only resolved together to give a beating to the Vegetable

cum fruit seller.

 It is humbly contended before the Hon’ble court that mere consultation or

advice of friends (accused) not indicative of common intention. It was just a

advice regarding to give a beating to the Vegetable cum fruit seller not to

murder.

In State of Uttar Pradesh v. Sahrunnisa AIR 2009 SC 3182 The State of Uttar

Pradesh went in appeal before the Apex Court against the acquittal of the two

respondents by the High court against their conviction under section 302 read with

section 34 of IPC by session court.

In Jumman v. State of Punjab AIR 1957 SC 469 the court went on to hold that

the mere presence of a person armed with a deadly weapon at the spot of crime

does not necessarily make him a participator in a joint crime in every case, because

for the purpose of section 34 only such presence makes a man a participant in a

joint crime as is established to be with the intention of lending weight to the

commission of a joint crime.

  It is essential for the application of section 34 that the persons who advice or

aids in the commission of the crime, must be physically present at the actual

scene of the crime for the purposes of facilitating or promoting the offence.

In the present case one of the friend namely Ahmad who was the part of advice or

consultation regarding the beating of vegetable cum fruit seller was not present at

the actual scene of crime; therefore section 34 is not applicable in this case.

 In order to hold the accused liable under Section 34, the prosecution has to

establish either by direct or by adducing circumstantial evidence, that there

was plan or meeting of mind of all the accused persons for committing the

offence for which they have been charged. But there was no such kind of

any evidence.
 Prayer

Wherefore, in light of the issues raised, arguments advanced and authorities cited,

may this Hon„ble Court be pleased to:

Find that the section 34 of the IPC of 1860 is not applicable in the instant case.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good

Conscience.

All of which is most humbly and respectfully submitted

Place: Srinagar S/d_____________

Date: Oct 19, 2022 COUNSEL FOR THE DEFENCE