PETIONER 2

TABLE OF CONTENTS
LIST OF ABBREVIATIONS iii

INDEX OF AUTHORITIES iv
STATEMENT OF JURISDICTION 1
STATEMENT OF FACTS 2
STATEMENT OF ISSUES 3
SUMMARY OF ARGUMENTS 4
ARGUMNETS ADVANCED 8
I. WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO WERE TRIED

WITH HIM AN ACCOUNT OF A DISPUTE REGARDING THE POSSESSION OF A
PLOT OF LAND? 8
A. Land. 8
B. Possession. 9
C. Burden of Proof. 10
II. WHETHER THERE WAS AN UNLAWFUL ASSEMBLY? 12
A. Unlawful Assembly. 12
B. Ingredients. 13
C. Common Object. 14
D. Determination of Common Object. 14
E. Forcible Possession or Dispossession. 15
III. DID THE APPELLANTS ASSAULT DIPAK KUMAR AND NANDA LAL WHICH
RESULTS IN THE DEATH OF DIPAK KUMAR? 17
A. Grave and Sudden Provocation. 17
B. Private Defence. 18
C. Sudden Fight. 19
D. Beyond Reasonable Doubt. 19
i
MEMORENDUM ON BEHALF OF THE APPELLANTS
IV. WHETHER THEIR ACTIONS WERE IN THE EXERCISE OF THEIR RIGHT OF
SELF-DEFENCE? 21
A. Aggressor Cannot take plea of Self-Defence. 21
B. Private Defence. 21
C. Plea of Private Defence Accepted. 23
D. Retreat. 24
PRAYER 25
ii
LIST OF ABBREVIATIONS
ABBREVIATIONS EXPANSION
A Article
A.I.R All India Reporter
Cr. App D Criminal Appeal Decisions
Cr. LJ Criminal Law Journal
Cr. LR Criminal Law Reporter
edn. Edition
HC High Court
Hon’ble Honourable
J. Justice
Ors. Others
Pg. Page
r/w. Read With
s Section
SC Supreme Court
SCC Supreme Court Cases
& And
UOI Union of India
u/s. Under Sections
v. versus
W.B West Bengal
W.P Writ Petition
iii
INDEX OF AUTHORITIES
 CASES
A. Maharaja v. State of Tamil Nadu, AIR 2009 SC 480. 19
Amjad Khan v. State, AIR 1952 SC 165. 22
Baljit Singh v. State of Uttar Pradesh, AIR 1976 SC 2273. 16
Boya Munigadu v. Queen, ILR 1881 (3) Mad 323. 18
Bonda Devesu v. State of Andhra Pradesh, (1996) 7 SCC 115. 18
B. Gangadhar v. Ramalingam, (1995) 5 SCC 238. 9
Bharat Soni v. State of Chhattisgarh, 2013 CrLJ 486. 15
Dani Singh v. State of Bihar, 2004 (13) SCC. 15
Gobind Prasad v. Mohan Lal, (1901) 24 All 157. 10
Gurmail Singh v. State of Punjab, 2013 (4) SCC 228. 13
Haren Das v. State of Assam, 2012 CrLJ 1467. 23
Jaipal v. State of Haryana, AIR 2000 SC 1271. 21
K.M Ravi v. State of Maharashtra, (2009) 16 SC 337. 14
Munshi Ram and Others v. Delhi Administration, 1968 AIR 702. 10
Munney Khan v. State, AIR 1971 SC 1491. 23
Mahabir Choudhary v. State of Bihar, AIR 1996 SC 1998. 24
Phool Chand v. Amrit Lal, AIR 1980 P&H 122. 11
Rame Gowda Vs. M. Varadappa Naidu, AIR 2004 SC 4609. 9
iv
Ravishwar Manjhi v. State of Jharkhand, AIR 2009 SC 1262. 23
Shri Ram Narayan v. State of Bombay, AIR 1953 SC 459. 8
State v. Adra, AIR 1958 Raj 52. 18
Triloki Nath v. State of U.P, AIR 2006 SC 321 22
 STATUTES
The Constitution of India, 1950.
The Indian Evidence Act, 1872 [Act No. 01 of 1872].
The Indian Penal Code, 1860 [Act No. 45 of 1860].
The West Bengal land Reforms Act, 1955 [Act No. 10 of 1956].
 BOOKS
Gaur, K.D, TEXTBOOK ON INDIAN PENAL CODE, Universal Law Publishing, New Delhi,
6th Edition, 2016.
Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, LexisNexis, New Delhi, 35 th Edition,
2017.
Ratanlal & Dhirajlal, THE LAW OF EVIDENCE, LexisNexis, New Delhi, 27th Edition, 2019.
Sarkar Babu, LAND LAWS OF WEST BENGAL, R. Cambray & Co. Private Ltd., Kolkata,
4th Edition, 2019.
Shukla, V.N., CONSTITUTION OF INDIA, Eastern Book Company, Lucknow, 13 th Edition,

2017.
 WEBSITES
https://bnblegal.com/landmark/rame-gowda-v-m-varadappa-naidu-anr/ (last visited on June

23, 2023).
https://www.legalserviceindia.com/article/l279-Beyond-Reasonable-Doubt.html (last visited

on June 24, 2023).
v
STATEMENT OF JURISDICTION
The Appellant has approached The Hon’ble Supreme Court under Article 134 of the
Constitution of India, 1950.
Art. 134 of Constitution of India, 1950 stated as follows:
134. Appellate jurisdiction of Supreme Court in regard to criminal matters. -
(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in
a criminal proceeding of a High Court in the territory of India if the High Court-
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to
death;
(b) or has withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him to death; or
(c) [certifies under Article 134A] that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be
made in that behalf under clause (1) of Article 145 and to such conditions as the High Court
may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers to entertain
and hear appeals from any judgment, final order or sentence in a criminal proceeding of a
High Court in the territory of India subject to such conditions and limitations as may be
specified in such law.
1
STATEMENT OF FACTS
 On 25th September 2020, Vivek Sen, Suman Das and Bikash Pal along with others
were walking through the field, they saw Dipak Kumar, Nanda Lal and a few others
were sitting in front of a well. When Vivek and the others were crossing that well,
Nanda Lal remarked that he will not let them pass.
 A brawl started when Vivek Sen, Suman Das and Bikash Pal went to plough their field
which was disputed land. The brawl soon became an affray and all of them engaged in
a fight.
 Many persons from both sides were injured.
 Dipak Kumar and others assaulted their opponents when they were going to plough the
land in dispute and they also caused them grievous injuries.
 A member of Bikash Pal's Party caused a spear blow in the abdomen which caused fatal
injury and ran away.
 Dipak Kumar succumbed to death because of the injuries.
 (Around 9-10 persons) who accompanied Bikash Pal and his friends got the benefit of
the doubt as there was no reliable evidence against them.
 The learned Sessions Judge found Bikash Pal, Suman, and Vivek guilty. and so they
were convicted under Section 302 read with Section 149.
 The three convicts appealed to the High Court, where the court refused their plea of the
right of private defence as both the parties were involved in a free fight.
 The Court dismissed their appeal.
 Hence this appeal was filed before the Hon'ble Supreme Court of India.
2
STATEMENT OF ISSUES
ISSUE- I
WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO WERE TRIED

WITH HIM AN ACCOUNT OF A DISPUTE REGARDING THE POSSESSION OF A
PLOT OF LAND?
ISSUE- II
WHETHER THERE WAS AN UNLAWFUL ASSEMBLY?
ISSUE- III
DID THE APPELLANTS ASSAULT DIPAK KUMAR AND NANDA LAL WHICH
RESULTS IN THE DEATH OF DIPAK KUMAR?
ISSUE- IV
WHETHER THEIR ACTIONS WERE IN THE EXERCISE OF THEIR RIGHT OF

SELF-DEFENCE?
3
SUMNARY OF ARGUMENTS
1. WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO

WERE TRIED WITH HIM AN ACCOUNT OF A DISPUTE REGARDING
THE POSSESSION OF A PLOT OF LAND?
It is humbly stated that Appellant and 12 other person who were tried with him as an account
regarding a disputed land. The land which was belong to him are their own land. The land are
previously possessed by them peacefully. Recently the other party members are trying to
capture the land forcibly, so a dispute was arises regarding this plot of land. Presently Vivek
Sen, Suman Das, Bikash Pal along with their friends went to prolong their field.
The others party members are got that news, and for resist then previously associated there and
try to resist them to taking possession of Appellant’s own land. So, a brawl started as soon it
became an affray. For exercising right to private defenses over property and body the incident
was occurred.
So, it was stated that right to taking possession over own property is a legal right of a person.
And the appellant was also wanting to established that. For the exercising this right and for the
security of the land, and to resist the opposite party to enter his own land by sudden and grave
provocation Appellant and his friends are involved dispute.
4
2. WHETHER THERE WAS AN UNLAWFUL ASSEMBLY?
It was humbly stated that there is no unlawful assembly on the side of Appellants party. Though
they are associated with 13 persons but they intention are different. They are associated for
cultivation purpose. And they try to prolong their land. It is not a unlawful assembly as because
they does not fulfill the requirement of s. 141 of Indian Penal Code, 1860. They have common
lawful object, that is cultivate their field, but for committing unlawful assembly the common
object must be illegal, which is absent in this case.
Side by side they does not deploy force firstly. The opposite party are try to resist them enjoy
their own property and try to capture the property. So, for saving the property they apply force
in exercise of right to private defense over property and then body. But this force also apply by
the grave and sudden provocation of Opposite party.
As mens rea is a essential ingredients to commit a crime, which is completely absent in this
case. So, my submission is that Appellants does not fulfil the requirement to Constitute crime
under s. 141 of Indian Penal Code, 1860. So, there is no unlawful assembly.
5
3. DID THE APPELLANTS ASSAULT DIPAK KUMAR AND NANDA
LAL WHICH RESULTS IN THE DEATH OF DIPAK KUMAR?
The humble submission of the 3 Appellants, that is Bikash Pal, Suman Das and Vivek Sen is
they does not assault Dipak Kumar and Nanda Lal which does not results the death of Dipak
Kumar. The three appellants charged u/s 302 r/w s. 149 of Indian Penal Code.
But There is no unlawful assembly on the side of appellants as there is no unlawful object and
no malafide intention. So, my humble submission is that there is no offence u/s 141.
And the appellants falls under the exception of s. 300. They does not fulfilled the requirement
of u/s 300. Various exception of s. 300 applies on them. Like there is sudden and grave
provocation by opposite side, A sudden fight was occurred between them.
The Appellants are never ready to fight, But for securing their land they exercise the right to
private defense over property and then body and as the opposite party are pre-planed and ready
for brawl, so they engaged a free fight.
Beside all of that, there is no direct evidence that Bikash Pal, Suman Das and Vivek Sen doing
the Murder. There are more than 20 persons engaged in free fight by the both side. So, any of
them can do the misfortune. And the others members of the Bikash Pal party get the benefit of
doubt. So, it is my humble submission to the court that, as there is no direct and strong evidence
against of the appellants, on the benefit of doubt the court may please acquits them.
6
4. WHETHER THEIR ACTIONS WERE IN THE EXERCISE OF THEIR
RIGHT OF SELF-DEFENCE?
The humble submission of the Appellants is that, the action taken by them is absolutely exercise
of self defence. We see that at first there is a resistance by the side of opposite party and
criminal intimidation also by the opposite party that they don’t let them pass. After that when
Appellants are trying to prolong their own field a brawl was started intentionally by the
opposite party. Dipan Kumar’s party resist the Appellants to prolong their field and trespass in
the land. To resist the opposite party and to save the property they engaged in a fight.
Dipan Kumar and others assaulted the Appellants and also caused them grievous injuries. So,
for the exercise of self defence the assault was done by the appellants as there are no choice to
save their life.
Sec 96 to 106 of The Indian Penal Code, 1860 deals with the right to private defence of life
and property. Section 96 r/w. Clause 2 of s. 100 and Clause 4 of s. 105 applicable to the
appellant to exercise the right to private defence of body and property.
7
ARGUMENTS ADVANCED
1. WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO

WERE TRIED WITH HIM AN ACCOUNT OF A DISPUTE REGARDING
THE POSSESSION OF A PLOT OF LAND?
1. It is humbly stated that Appellant and 12 other person who were tried with him as an
account regarding a disputed land. The land which was belong to him are their own
land. The land are previously possessed by them peacefully. Recently the other party
members are trying to capture the land forcibly, so a dispute was arises regarding this
plot of land. Presently Vivek Sen, Suman Das, Bikash Pal along with their friends went
to prolong their field.
2. The others party members are got that news, and for resist then previously associated
there and try to resist them to taking possession of Appellant’s own land. So, a brawl
started as soon it became an affray. For exercising right to private defences over
property and body the incident was occurred.
 Land:
3. "Land" is a very important issue in different connotations. It is rightly stated by the

Supreme Court in Shri Ram Narayan v. State of Bombay, 1 "Land", that is to say rights
in or over land, land tenures including the relation of landlord and tenant, the collection
of rents; transfer and alienation of agricultural lands; land improvement and agricultural
loans; colonization".2
4. In other words, "Land" is an immovable and indestructible three-dimensional area

consisting of a portion of the earth's surface, the space above and below the surface,
and everything growing on or permanently affixed in it. Not only the concept of land,
1
Shri Ram Narayan v. State of Bombay, AIR 1953 SC 459.
2
Babu Sarkar, LAND LAWS OF WEST BENGAL, i, (R. chambray & Co. Private Ltd., Kolkata, 4th Edn., 2019)
8
its use is also multidimensional, because land is used for agricultural purpose as well
as non-agricultural purposes, to construct building, highway, etc. 3
 Possession:
5. Possession is the most basic relation between man and things. Possession of material
things is essential to life because the existence of human life and human society would
be rather impossible without the consumption and use of material things. Many
important legal consequences flow from the acquisition and loss of possession. Besides
being prima-facie evidence of ownership, it is also one of the modes of transferring
ownership. Possession is said to be nine out of ten points of law meaning thereby that
it is evidence of ownership and he who interferes with the possession of another, must
show either title or better possessory right.
6. The Supreme Court of India has elaborately explained the concept of possession in B.
Gangadhar v. Ramalingam,4 as follow:- "Possession is the objective realization of
ownership. It is defacto exercise of claim to certain property and defacto counterpart of
ownership. Possession of a right is the defacto relation continuing exercise and
enjoyment as opposed to dejure relation of ownership. Possession is the defacto
exercise of a claim to certain property. It is the external form in which claims normally
manifest themselves. Possession is in fact what ownership in right, enforceable at law
to or over the thing."
7. Possession with title in the absence of evidence to the contrary would constitute
ownership over the thing possessed. But possession without title would not confer
ownership. Thus possession is an important element of ownership and in fact it is a
means of acquiring ownership.
8. In Rame Gowda Vs. M. Varadappa Naidu,5 It is thus clear that so far as the Indian law
is concerned the person in peaceful possession is entitled to retain his possession and
3
Ibid.
4
B. Gangadhar v. Ramalingam, (1995) 5 SCC 238.
5
Rame Gowda Vs. M. Varadappa Naidu, AIR 2004 SC 4609.
9
in order to protect such possession he may even use reasonable force to keep out a
trespasser. A rightful owner who has been wrongfully dispossessed of land may retake
possession if he can do so peacefully and without the use of unreasonable force. The
owner of any property may prevent even by using reasonable force a trespasser from
an attempted trespass, when it is in the process of being committed, or is of a flimsy
character, or recurring, intermittent, stray or casual in nature, or has just been
committed, while the rightful owner did not have enough time to have recourse to law.6
9. In Munshi Ram & Ors.’s7 case, it was held that, The possession which a trespasser is
entitled to defend against the rightful owner must be settled possession, extending over
a sufficiently long period of time and acquiesced to by the true owner. A casual act of
possession would not have the effect of interrupting the possession of the rightful
owner. The rightful owner may re-enter and re- instate himself provided he does not
use more force than is necessary. Such entry will be viewed only as resistance to an
intrusion upon his possession which has never been lost.
 Burden of Proof:
10. Section 110 of the Indian Evidence Act reads as under-
Burden of Proof as to ownership- When the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that he is not
the owner is on the person who affirms that he is not the owner."
11. A person in possession of land without title has an interest in the property which is
heritable and good against all the world except the true owner, an interest which unless
and until the true owner interferes, is capable of being disposed of by deed or will, or
by execution sale, just in the same way as it could be dealt with if the title were
unimpeachable.8
6
Judgement, available at: https://bnblegal.com/landmark/rame-gowda-v-m-varadappa-naidu-anr/ (last visited
on June 23, 2023).
7
Munshi Ram and Others v. Delhi Administration, 1968 AIR 702.
8
Gobind Prasad v. Mohan Lal, (1901) 24 All 157.
10
12. Possession is prima facie proof of ownership; it is so, because it is the sum of acts of
ownership. This applies both to prior and to present possession. Possession has a two-
fold value; it is evidence of ownership, and is itself the foundation of a right to
possession. To recover possession a plaintiff must show a better right in himself to
possession than is in the defendant. He may, within the period prescribed by the
Limitation Act, 1963, succeed in a case where he is dispossessed, either by establishing
title or by showing a prior legal possession entitling him to be restored to the same. 9
13. So, it was stated that right to taking possession over own property is a legal right of a
person. And the appellant was also wanting to established that. For the exercising this
right and for the security of the land, and to resist the opposite party to enter his own
land by sudden and grave provocation Appellant and his friends are involved dispute.
9
Phool Chand v. Amrit Lal, AIR 1980 P&H 122.
11
2. WHETHER THERE WAS AN UNLAWFUL ASSEMBLY?
14. It was humbly stated that there is no unlawful assembly on the side of Appellants party.
Though they are associated with 13 persons but they intention are different. They are
associated for cultivation purpose. And they try to prolong their land. It is not a unlawful
assembly as because they does not fulfill the requirement of s. 141 of Indian Penal
Code, 1860. They have common lawful object, that is cultivate their field, but for
committing unlawful assembly the common object must be illegal, which is absent in
this case.
15. Side by side they do not deploy force firstly. The opposite party are trying to resist them
enjoy their own property and try to capture the property. So, for saving the property
they apply force in exercise of right to private defence over property and then body.
But this force also applies by the grave and sudden provocation of Opposite party.
16. As mens rea is a essential ingredients to commit a crime, which is completely absent in
this case. So, my submission is that Appellants does not fulfil the requirement to
Constitute crime under s. 141 of Indian Penal Code, 1860. So, there is no unlawful
assembly.
 Unlawful Assembly:
17. An ‘assembly’ is a company of persons assembled together in a place, usually for a

common purpose. Court is concerned with “unlawful assembly”. Wherever five or more
persons commit a crime with a common object and intent, then each of them would be
liable for commission of such offence, terms of ss. 141 and 149 IPC. It is not possible
to define the constituents or dimensions an offence u/s. 149 simpliciter with regard to
dictionary meaning of the words ‘unlawful assembly’ or ‘assembly’. An assembly of
five or more persons having as its common object any of the five objects enumerated
u/s. 141 of the IPC is deemed to be an unlawful assembly. 10
10
Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 282, (LexisNexis, New Delhi, 35th Edn., 2017).
12
18. Membership of an unlawful assembly is itself an offence punishable us whereas other
species of the said offence are dealt with u/s. 143-145 of the I Similarly, ss. 146-148 of
the IPC deals with the offence of rioting which is defined to be use of force or violence
by any member thereof. Section 149 makes every member of unlawful assembly liable
for offence that may be committed by any member of the unlawful assembly in
prosecution of the common object of that assembly or for commission of any offence
that the members of the assembly knew to be likely to be committed in prosecution of
the common object of the assembly.11
19. In Gurmail Singh v. State of Punjab,12 it was held that, “to bring a case with s. 149 of
the IPC some essential features must be present. First, there must be a existence of an
unlawful assembly within the meaning of s. 141 of the IPC. This is a mixed question of
fact and law.”
 Ingredients:
20. An ‘unlawful assembly’ is an assembly of five or more persons, if their common object
is-
i. to overawe by criminal force
(a) the Central Government, or
(b) the State Government, or
(c) the Legislature, or
(d) any public servant in the exercise of lawful power;
ii. to resist the execution of law or legal process;
iii. to commit mischief, criminal trespass, or any other offences;
iv. by criminal force;
(a) to take or obtain possession of any property, 5or
(b) to deprive any person of any incorporeal right, or
(c) to enforce any right or supposed right;
v. by criminal force to compel any person-
11
Ibid.
12
Gurmail Singh v. State of Punjab, 2013 (4) SCC 228.
13
(a) to do what he is not legally bound to do, or
(b) to omit what he is legally entitled to do.13
 Common Object:
21. The common object of an unlawful assembly depends firstly on whether such object
can be classified as one of those described in s. 141; secondly such common object need
not be the product of prior concert but may form on spur of the moment, finally, nature
of such common object is a question of fact to be determined by considering the nature
of arms, nature of assembly, behavior of members, etc.
22. In K.M Ravi v. State of Maharashtra, 14 Mere presence in an assembly does not make a
person a member of an unlawful assembly unless it is shown that he had done something
or omitted to do something which would make him a member of the unlawful assembly
or unless the case falls u/s. 142.
23. At the same time, it cannot be laid down as a general proposition of law that unless an
overt act is proved against a person, who is alleged to be a member of unlawful
assembly, it cannot be said that he is a member of an assembly. The only thing required
is that he should have understood that the assembly was unlawful and was likely to
commit any of the acts which fall within the purview of s. 141. The word 'object' means
the purpose or design and, in order to make it 'common', it must be shared by all. In
other words, the object should be common to the persons, who compose the assembly,
that is to say, they should all be aware of it and concur in it.
 Determination of Common Object:
24. Determination of the common object of unlawful assembly or the determination of the
question whether a member of unlawful assembly knew that the offence that was
committed was likely to be common is essentially a question of fact that has to be made
keeping in view the nature of t assembly, the arms carried by the members and the
13
Supra note 10 at 283.
14
K.M Ravi v. State of Maharashtra, (2009) 16 SC 337.
14
behavior of the members at or ne the scene and a host of similar or connected facts and
circumstances that cannot entrapped by any attempt at an exhaustive enumeration. 15
25. The "common object" of assembly is to be ascertained from the acts and language of
the members composing and from a consideration of all the surrounding circumstances.
It may be gathered from the course of conduct adopted by the members of the assembly.
What the common object of the unlawful assembly is at a particular stage of the incident
is essentially a question of fact to be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the behavior of the members at or near
the scene of the incident. A object is entertained in the human mind, and it being merely
a mental attitude, no dire evidence can be available and, like intention, has generally to
be gathered from the ac which the person commits and the result therefrom.
26. In Dani Singh v. State of Bihar,16 it was held that, though no hard and fast rule ca be
laid down under the circumstances from which the common object can be culled out,
may reasonably be collected from the nature of the assembly, arms it carries and
behavior at or before or after the scene of incident. An inference may be draw from
circumstances such as the background of the incident, the motive, the nature of the
assembly, the nature of the arms carried by the members of the assembly, their common
object and the behavior of the members soon before, at or after the actual commission
of the crime.
 Forcible Possession or Dispossession:
27. Clause 4 of sec 141 of Indian penal Code prohibits use of criminal force as well as show
of criminal force by five or more than five persons, if their common object is (i) to take
or obtain possession of any property, or (ii) to deprive any person of the enjoyment of
a right of way, or of the use of water or other incorporeal right of which he is in
possession or enjoyment, or (iii) to enforce any right or supposed right. 17
15
Bharat Soni v. State of Chhattisgarh, 2013 CrLJ 486.
16
Dani Singh v. State of Bihar, 2004 (13) SCC.
17
K.D. Gaur, TEXT BOOK ON INDIAN PENAL CODE, 348, (Universal Law Publishing, New Delhi, 6th Edn.,
2016).
15
28. In Baljit Singh v. State of Uttar Pradesh,18 the Supreme Court held that where a party
has a right as well as possession over the subject of that right, they are entitled to resist
and repel an aggression for defending their possession and for doing so they cannot be
convicted as members of an unlawful assembly within the meaning of clause (4) of
section 141 of the Indian Penal Code. In this case, the accused party were in actual
possession of the disputed land after its purchase and were sought to be dispossessed
by the complainant's party, who trespassed on the land armed with lathis. The accused
party in defending their possession caused the death of one of the dispossessors,
inflicting on him 72 injuries.
The Supreme Court set aside the conviction of the appellants under sections 147,
323/149 and 302/149 as they were held to have exercised their right of private defence,
but which they exceeded in causing as many as 72 injuries, to the deceased and,
accordingly, they were convicted for culpable homicide not amounting to murder under
section 304 Part I read with section 34 of the Penal Code.
18
Baljit Singh v. State of Uttar Pradesh, AIR 1976 SC 2273.
16
3. DID THE APPELLANTS ASSAULT DIPAK KUMAR AND NANDA
LAL WHICH RESULTS IN THE DEATH OF DIPAK KUMAR?
29. The humble submission of the 3 Appellants, that is Bikash Pal, Suman Das and Vivek
Sen is they does not assault Dipak Kumar and Nanda Lal which does not results the
death of Dipak Kumar. The three appellants charged u/s 302 r/w s. 149 of Indian Penal
Code.
30. But There is no unlawful assembly on the side of appellants as there is no unlawful
object and no malafide intention. So, my humble submission is that there is no offence
u/s 141.
31. And the appellants falls under the exception of s. 300. They does not fulfilled the
requirement of u/s 300. Various exception of s. 300 applies on them. Like there is
sudden and grave provocation by opposite side, A sudden fight was occurred between
them.
32. The Appellants are never ready to fight, But for securing their land they exercise the
right to private defence over property and then body and as the opposite party are pre-
planned and ready for brawl, so they engaged a free fight.
33. Beside all of that, there is no direct evidence that Bikash Pal, Suman Das and Vivek
Sen doing the Murder. There are more than 20 persons engaged in free fight by the both
side. So, any of them can do the misfortune. And the others members of the Bikash Pal
party get the benefit of doubt. So, it is my humble submission to the court that, as there
is no direct and strong evidence against of the appellants, on the benefit of doubt the
court may please acquits them.
 Grave and Sudden Provocation:
34. It is important to note that Indian courts have not maintained the distinction between
words and acts in be application of the doctrine of provocation, as is done in the case
of English. The cases in which the defence of provocation are placed may be considered
17
from two angles, namely:-(1) Whether words or gestures unaccompanied by acts can
amount to provocation; and (2) What is the effect of the time lag between the act of
provocation and the commission of the offence. 19
35. In Boya Munigadu v. Queen,20 the Madras High Court upheld the plea of grave and
sudden provocation in the following circumstances. The learned judges observed: “If
having witnessed the act of adultery, he connected this subsequent conduct, as he could
not fail to connect it, with that act, it would be conduct of a character highly
exasperating to him, implying, as it must, that all concealment of their criminal relations
and all regard for his feelings were abandoned and that they proposed continuing their
course of misconduct in his house. This, we think, amounted to provocation, grave
enough and sudden enough to deprive him of his self-control, and reduced the offence
from murder to culpable homicide not amounting to murder.”
36. In Bonda Devesu v. State of Andhra Pradesh, 21 appellant, a tribal into effect. was
convicted under section 302, IPC and was sentenced to undergo rigorous imprisonment
for life by the trial court and was confirmed by the High Court.
The Apex Court taking into account the facts of the case, behaviour of the deceased
who used to misbehave with the wife of the appellant and on the date of occurrence he
was actually taking her away by catching hold of her hand, in the normal course it was
bound to cause grave provocation to the appellant, because of which the offence was
committed. The behavior of the tribal, in situation in which the occurrence has taken
place is well known. His case is accordingly covered under Exception I to section 300
of the Penal Code.
 Private Defence:
37. In State v. Adra,22 the accused had been in peaceful and undisturbed possession of the
disputed land for more than half a century. In exercise of their it, the complainant's
19
Supra note 17 at 575.
20
Boya Munigadu v. Queen, ILR 1881 (3) Mad 323.
21
Bonda Devesu v. State of Andhra Pradesh, (1996) 7 SCC 115.
22
State v. Adra, AIR 1958 Raj 52.
18
party turned up with the intention of stopping the accused, who were rightful owners of
the field, and whose possession had never really been disturbed, from ploughing the
field and maintaining possession of it thereby A fight ensued in which both parties
received injuries. One of the complainant's party, Rawta, unfortunately received two
injuries on the chest which fractured his ribs, leading to rupture of the liver and lungs,
as a consequence of this rupture of the lungs and liver, Rawta died.
Held, that the accused had full right to maintain their possession. In these
circumstances, if they hit back with lathis, with the result that one of the assailants died,
it cannot be said that they had exceeded the right of private defence of person.
 Sudden Fight:
38. The most important element under this clause is that there should be a sudden fight.
The word 'fight' has not been defined in the Code. In ordinary parlance the word 'fight'
means a combat between two or more persons, whether with or without weapons.
39. In A. Maharaja v. State of Tamil Nadu,23 the judgment of the Madras High Court
upholding the conviction of the appellants under section 302, IPC and sentence of
imprisonment for life was challenged by the Apex Court. A plea of the benefit of
Exception 4 to section 300, IPC was rejected by the trial court as well as the High Court.
The Apex Court held that from the background facts as considered in the light of the
evidence, the inevitable conclusion is that the occurrence took place in course of sudden
quarrel. Therefore, Exception 4 to section 300, IPC is applicable. Accused was
accordingly sentenced to 10 years of imprisonment under Part I section 304, IPC.
 Beyond Reasonable Doubt:
40. Man is a rational being. Due to this 'rationality' everyone differs drastically from others.
The reasonability of his thoughts and consequently his decisions cannot be measured.
For instance a glass can be half full for one while it may be half empty for others.
23
A. Maharaja v. State of Tamil Nadu, AIR 2009 SC 480.
19
Similarly what might be reasonable for one might be totally absurd for others.
Maximum criminal justice systems of the world follow the principle that the guilt of an
accused should be proved beyond reasonable doubt. Indian criminal justice system also
works on the same lines and it is for the prosecution to prove beyond reasonable doubt
that the accused has committed an offence with requisite mens rea. 24
41. There is no straight jacket formula on the basis of which the guilt of the accused is said
to be proved beyond reasonable doubt. Moreover, there is no way to determine
objectively, the reasonability of the doubt that the judge might have. So it depends
solely on the Judge to say whether he is convinced by the arguments of the prosecution
or that there still remains a degree of reasonable doubt so as to impart the judgment in
the favor of the defence.
42. This follows from the cardinal principle that the accused is presumed to be innocent
unless proved to be guilty by the prosecution and the accused is entitled to the benefit
of every reasonable doubt.25
43. The Supreme Court recently acquitted two men convicted decades ago in a 1985 murder
case, finding that that they were and are entitled to the benefit of doubt. 26
24
Beyond Reasonable Doubt, available at: https://www.legalserviceindia.com/article/l279-Beyond-Reasonable-
Doubt.html (last visited on June 24, 2023).
25
Ibid.
26
Munna Lal v. State of U.P, Criminal Appeal No. 490 of 2017.
20
4. WHETHER THEIR ACTIONS WERE IN THE EXERCISE OF THEIR
RIGHT OF SELF-DEFENCE?
44. The humble submission of the Appellants is that, the action taken by them is absolutely
exercise of self defence. We see that at first there is a resistance by the side of opposite
party and criminal intimidation also by the opposite party that they don’t let them pass.
After that when Appellants are trying to prolong their own field, a brawl was started
intentionally by the opposite party. Dipan Kumar’s party resist the Appellants to
prolong their field and trespass in the land. To resist the opposite party and to save the
property they engaged in a fight.
45. Dipan Kumar and others assaulted the Appellants and also caused them grievous
injuries. So, for the exercise of self defence the assault was done by the appellants as
there are no choice to save their life.
46. Sec 96 to 106 of The Indian Penal Code, 1860 deals with the right to private defence of
life and property. Section 96 r/w. Clause 2 of s. 100 and Clause 4 of s. 105 applicable
to the appellant to exercise the right to private defence of body and property.
 Aggressor cannot take the plea of Self-Defence.-
47. In Jaipal v. State of Haryana,27 the Apex Court held that an aggressor cannot claim the
right of private defence.
But in my case the opposite party are the aggressor and firstly they are assault the
Appellants. So, the offence was conducted by them and reversely the right of private
defence applicable to the Appellants.
 Private Defence:
27
Jaipal v. State of Haryana, AIR 2000 SC 1271.
21
48. The basic principle underlying the doctrine of the right of private defence is that when
an individual or his property is faced with a danger and immediate aid from the State
machinery is not readily available, that individual is entitled to protect himself and his
property. The right of private defence is available only to one who is suddenly
confronted with the necessity of averting an impending danger not of self-creation. The
being so, the necessary corollary is that the violence which the citizen defending
himself.
49. To invoke section 100, IPC, four conditions must exist, viz,
firstly, that the person exercising the right of private defence must be free from fault in
bringing about the encounter;
secondly, there must be present an impending peril to life or of great bodily harm, either
real or so apparent as to create an honest belief of exceeding (great) necessity;
thirdly, there must be no safe or reasonable mode of escape by retreat;
and fourthly, there must have been a necessity for taking the life.
50. And section 105 of Indian Penal Code 1860 said about right to private defence over
property.
Every person in possession of land is entitled to defend his possession against anyone
who tries to eject him by force, or to steal from it, “or to do an act which will have the
effect of causing injury to it. e.g., cutting of a bund. Even if a trespass has been
committed, in certain situations, right of private defence can be used to eject the
trespassers. Where the accused had no right, title, interest or possession of the land in
issue, right of private defence of property did not vest in him.” 28
51. In Amjad Khan v. State,29 the Supreme Court held that under sections 102 and 105 the
right of private defence commences as soon as a reasonable apprehension of danger to
the human body or the property of oneself or another person commences to arise from
an attempt or threat to commit an offence, even though the offence may not be
28
Triloki Nath v. State of U.P, AIR 2006 SC 321.
29
Amjad Khan v. State, AIR 1952 SC 165.
22
committed. While exercising the right of private defence of property, it is not at all
necessary that the person exercising the right should wait until his property or another's
is actually looted, or a house trespass actually occurs.
52. The Supreme Court held that the facts of the case were sufficient to afford to the accused
a right of private defence which extended to the causing of death, because the accused
had reasonable ground to apprehend that death or grievous hurt would be caused to his
family, if he did not act promptly. He did not have to wait until the doors were broken
open and the mob had entered the shop. 30
53. In Munney Khan v. State,31 the Supreme Court observed: “The right of private defence
is codified in 96 to 106, IPC, which have all to be read together in order to have a proper
grade the scope and limitations of this right. By enacting the sections the authors of the
Code wanted to except from the operation of its penal clauses acts done in good faith
for the purpose of repelling unlawful aggression.”
 Plea of Private Defence Accepted:
54. There was no material brought on records to show that the accused were the aggressors.
If everything had happened within a short span of time as is alleged by the prosecution,
namely, the accused were causing nuisance which was objected by the deceased; they
went to their respective houses; came armed and started assaulting the deceased and
other injured persons, it was also necessary for the prosecution to prove as to how
accused persons received injuries. It is possible for the Court to arrive at the conclusion
that the appellants were entitled to exercise their right of private defence. 32
55. In Haren Das v. State of Assam,33 the court held that, “where the entire incident took
place in the land in possession of accused when injured victims tried to disposes the
occupier of land in question it is held that they had right to resist the aggressor to the
30
Ibid.
31
Munney Khan v. State, AIR 1971 SC 1491.
32
Ravishwar Manjhi v. State of Jharkhand, AIR 2009 SC 1262.
33
Haren Das v. State of Assam, 2012 CrLJ 1467.
23
wart the illegal dispossession and assault made on deceased. Plea of private defence
accepted and the conviction and sentence is set aside.”
 Retreat:
56. It is now well settled that the rule of retreat which Common Law Courts espoused is
not relevant under the Indian Penal Code.34
In Mahabir Choudhary v. State of Bihar,35 it was held that, “if a man's property is in
imminent danger of being impaired or attacked he has the right to resort to such
measures as would be reasonably necessary to thwart the attempt to protect his property.
Under the common law the doctrine of necessity permitted one to defend one’s person
or property or the person or property of others against an unjustified attack by the use
of reasonable force.”
34
Supra note 10 at 182-183.
35
Mahabir Choudhary v. State of Bihar, AIR 1996 SC 1998.
24
PRAYER
Wherefore, in the light of facts stated, the cases cited, issues raised, argument advanced and
authorities cited, it is most humbly prayed and implored before The Hon’ble Supreme Court of
India, that it may be graciously placed to adjudged and declared that,
(a) This Hon’ble Court may be pleased to call for the entire record and proceedings in respect
of the impugned Judgment and Order of Conviction and Sentence passed by the Sessions Judge.
(b) After perusal of the same this Hon’ble Court may be pleased to quash and set aside the
impugned Judgment and Order of conviction and sentence and set the present Appellant at
liberty;
(c) Affidavit of the Appellant may kindly be dispensed with as the Appellant are in jail.
Also pass any order that the court may deem fit in the favour of Appellants to meet the ends of
equity, justice and good conscience.
All of which is humbly submitted.
Filed on: / / 2023 Respectfully Submitted

Sd/-
Counsel for Appellants
25

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS iii

I. WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO WERE TRIED

II. WHETHER THERE WAS AN UNLAWFUL ASSEMBLY? 12

A.I.R All India Reporter

Cr. App D Criminal Appeal Decisions

Cr. LJ Criminal Law Journal

Cr. LR Criminal Law Reporter

r/w. Read With

SCC Supreme Court Cases

UOI Union of India

u/s. Under Sections

W.B West Bengal

W.P Writ Petition

Amjad Khan v. State, AIR 1952 SC 165. 22

Baljit Singh v. State of Uttar Pradesh, AIR 1976 SC 2273. 16

Boya Munigadu v. Queen, ILR 1881 (3) Mad 323. 18

Bonda Devesu v. State of Andhra Pradesh, (1996) 7 SCC 115. 18

B. Gangadhar v. Ramalingam, (1995) 5 SCC 238. 9

Bharat Soni v. State of Chhattisgarh, 2013 CrLJ 486. 15

Dani Singh v. State of Bihar, 2004 (13) SCC. 15

Gobind Prasad v. Mohan Lal, (1901) 24 All 157. 10

Gurmail Singh v. State of Punjab, 2013 (4) SCC 228. 13

Haren Das v. State of Assam, 2012 CrLJ 1467. 23

Jaipal v. State of Haryana, AIR 2000 SC 1271. 21

K.M Ravi v. State of Maharashtra, (2009) 16 SC 337. 14

Munshi Ram and Others v. Delhi Administration, 1968 AIR 702. 10

Munney Khan v. State, AIR 1971 SC 1491. 23

Mahabir Choudhary v. State of Bihar, AIR 1996 SC 1998. 24

Phool Chand v. Amrit Lal, AIR 1980 P&H 122. 11

Rame Gowda Vs. M. Varadappa Naidu, AIR 2004 SC 4609. 9

Shri Ram Narayan v. State of Bombay, AIR 1953 SC 459. 8

State v. Adra, AIR 1958 Raj 52. 18

Triloki Nath v. State of U.P, AIR 2006 SC 321 22

The Constitution of India, 1950.

The Indian Evidence Act, 1872 [Act No. 01 of 1872].

The Indian Penal Code, 1860 [Act No. 45 of 1860].

Shukla, V.N., CONSTITUTION OF INDIA, Eastern Book Company, Lucknow, 13 th Edition,

https://bnblegal.com/landmark/rame-gowda-v-m-varadappa-naidu-anr/ (last visited on June

https://www.legalserviceindia.com/article/l279-Beyond-Reasonable-Doubt.html (last visited

Art. 134 of Constitution of India, 1950 stated as follows:

134. Appellate jurisdiction of Supreme Court in regard to criminal matters. -

 Many persons from both sides were injured.

 Dipak Kumar succumbed to death because of the injuries.

 The Court dismissed their appeal.

WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO WERE TRIED

WHETHER THERE WAS AN UNLAWFUL ASSEMBLY?

WHETHER THEIR ACTIONS WERE IN THE EXERCISE OF THEIR RIGHT OF

1. WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO

1. WHETHER APPELLANT AND TWELVE OTHER PERSONS WHO

3. "Land" is a very important issue in different connotations. It is rightly stated by the

4. In other words, "Land" is an immovable and indestructible three-dimensional area

10. Section 110 of the Indian Evidence Act reads as under-

17. An ‘assembly’ is a company of persons assembled together in a place, usually for a

i. to overawe by criminal force

(a) the Central Government, or

(b) the State Government, or

(c) the Legislature, or

(d) any public servant in the exercise of lawful power;

ii. to resist the execution of law or legal process;

iii. to commit mischief, criminal trespass, or any other offences;

iv. by criminal force;

(a) to take or obtain possession of any property, 5or

(b) to deprive any person of any incorporeal right, or