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DELHI UNIVERSITY FACULTY OF LAW, LAW CENTRE – II

Moot Court, 2017

BEFORE THE HON’BLE HIGH COURT OF PUNJAB & HARYANA AT


CHANDIGARH

CRIMINAL APPEALS NO. 30-32 OF 2017

In the matter of:

Sher Shah ... Appellant 1


Or/and
Gajendra Shah … Appellant 2
Or/and
Suri Shah … Appellant 3
(APPELLANTS)

Versus

STATE OF HARYANA
(RESPONDENT)

APPEAL UNDER SECTION 374(2) OF


THE CODE OF CRIMINAL PROCEDURE, 1973

UPON SUBMISSION TO THE HON’BLE HIGH COURT

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS

Mukesh K. Narayan

Roll No- 136

Section A

1
TABLE OF CONTENT

LIST OF REFERENCES AND CASES 3-5

STATEMENT OF JURISDICTION 6

STATEMENT OF FACTS 7-8

STATEMENT OF ISSUES 9

SUMMARY OF PLEADINGS 10

ARGUMENTS ADVANCED 11- 23

PRAYER 24

AFFIDAVIT 25

2
List of REFERENCES

1. List of Statute

- The Indian Penal Code (45 of 1860)

- The Criminal Procedure Code, 1973

- The Indian Evidence Act, 1872

2. List of Books Referred

• Ratanlal & Dhirajlal, the Indian Penal Code, (lexis Nexis Butterworth Wadhwa
Nagpur 32nd Enlarged Edition, 2010)

• PSA Pillai Criminal Law, (lexis Nexis Butterworth Wadhwa Nagpur, 10th
edition, 2008)

• K.D.Gaur, Textbook on the Indian Penal Code, (Universal Law Publication


Company, 7th Edition, 2013)

• Dr. Hari Singh Gour, Penal Code, (Law Publishers Pvt.Ltd, Vol.1&2)

• Kenny Outlines of Criminal Law. (Cambridge University Press, Cambridge,


19th edition 1966)

3
TABLE OF CASES

S.NO
CASE NAME CITATION
.
1 Mahbub Shah v. Emperor (1945) 47 BOMLR
941
2 Chandrakant Murgyappa Umrani & Ors. v. State AIR 1999 SC 1557
of Maharashtra
3 Suresh and Anr. v. State of U.P (2001) 3 SCC 673
4 Marinal Das v. State of Tripura (2011) 9 SCC 479
5 Nagraja v. State of Karnataka (2008) 17 SCC 277
6 Girija Shankar v. State of U.P (2004) 3 SCC 793
7 Surinder Kumar v. UT, Chandigarh [1989] 2 SSC 217
8 Sukhbir Singh v. State of Haryana (2002) 3 SCC 327
9 Sekar v. State 2002(8) SCC 354
10 Perana v. Emperor 1936 ALL LJ 333
11 Suraj Dev v. The State(Delhi Admn) (Crl)Appeal No.
103 of 2009
12 K.M Nanavati v. State of Maharashtra AIR 1962 SC 605
13 R. DUFFY (1949) 1 ALL ER
932
14 Boya Munigadu v. The Queen (ILR 3 MAD 33)
15 In Re C. Narayan (A.I.R. 1958 A.P.
235)
16 Ayyanar v. State of Tamil Nadu
17 Babu Lal v. State AIR 1960 All 223
18 Suyambukkani v. State of Tamil Nadu (1989) LW (Crl.)
86
19 Sankaral Alias Sankarayee v. State (1989) L.W. (Crl.)
468
20 Virsa Singh v. State of Punjab (1958) SCR 1495
21 Jagrup Singh v. State of Haryana (1981) 3 SCC 616
22 Gurmukh Singh v State of Haryana (Crl.) Appeal No.
1609 of 2009
23 Hem Raj v. State (Delhi Administration) (1990) Supp. SCC
29

4
JOURNALS REFERRED

S. NO. NAME OF THE JOURNALS

1 All India Reporter

2 Supreme Court Cases

3 Indian Law Reporter

DATABASE REFERRED

S. NO. NAME OF DATABASE

1 www.lexisnexis.com

2 www.scconline.com

3 www.indiankanoon.org

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STATEMENT OF JURISDICTION

WHEREAS THE PRESENT APPEAL FILED UNDER SECTION 374 (2) OF THE
CRIMINAL PROCEDURE CODE CHALLENGES THE JUDGMENT OF THE
LEARNED PRINCIPAL SESSIONS JUDGE, JHAJJAR IN S.C.NO.165 OF 2008
DATED 17.11.2008.

SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE READS AS


FOLLOWS:

“374. Appeals from convictions---- (2) Any person convicted on trial held by a Session
judge or an Additional Session Judge or on a trial held by any other court in which a
sentence of imprisonment for more than 7 years [has been passed against him or
against any other person convicted at the same trial]; may appeal to the High Court.”

6
STATEMENT OF FACTS

1) Sher Shah(appellant 1), a farmer living with his family consisting of his wife
(Sobti), son Gajendar Shah(appellant 2), daughter Naina and brother Suri
Shah(appellant 3).

2) Karim, a boy living in the same village, was working as a system operator 12km
away from the village in Jhajjar, was in love with Naina, daughter of Sher Shah.
Being a father in order to protect his daughter warned Karim to stay away and
severely admonished and scolded Naina to refrain from meeting Karim.

3) Suri Shah owed a debt of Rs.20, 000 to Karim but because of his helplessness to
pay could not return the said money though he never denied paying off his debt as
he needed some time.

4) On 8th August, 2010, Suri Shah invited Karim to collect the debt. Karim reached
around 8:30 pm at their house when the family finished their dinner.

5) Sher Shah, Suri Shah and Gajendar Shah on hearing whispers from the
backyard went to investigate, albeit unarmed. On seeing Karim and Naina together
Sher Shah lost his temper and started abusing Karim.

6) Gajendar brought lathi from inside of the house as it is easily available at every
household and gave blows on the leg of Karim. Suri Shah grabbed the lathi and
started beating Karim and gave blows on head and chest.

7) Karim was taken to the hospitals by the villagers where he died 3 days later.
Post-mortem report confirmed that Karim suffered injuries on head and fracture of
3 ribs. None of the injuries independently was sufficient to cause death while they
cumulatively were sufficient in the ordinary course of nature to cause death.

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8) First Information Report was registered under section 307 r/w section 34 Indian
Penal Code 1860, and after the death of Karim charges were altered to section 302
r/w section 34 Indian Penal Code,1860.

9) Session Court convicted Appellant 1, 2 & 3 under section 302 r/w section 34 &
sentenced them to life imprisonment for having committed the murder of Karim.

10) Aggrieved by the judgment of conviction passed by the learned Trial


Judge, the Appellants have preferred the present appeal.

8
STATEMENT OF ISSUES

1) WHETHER APPELLANT 1, 2 & 3 CAN BE PROSECUTED U/S 302


R/W SECTION 34 OF INDIAN PENAL CODE, 1860?

2) WHETHER THE NATURE OF INJURIES AND WEAPON WAS


SUCH AS TO CAUSE DEATH OF THE PERSON?

3) WHETHER THE ACT OF THE DECEASED AMOUNTED TO


GRAVE AND SUDDEN PROVOCATION?

4) WHETHER THE SESSION COURT WAS JUSTIFIED IN


SENTENCING THE APPELLANTS WITH LIFE IMPRISONMENT IN
CONNECTION WITH THE ACT COMMITTED BY THEM?

9
SUMMARY OF PLEADINGS

I) THE SESSION COURT WAS NOT JUSTIFIED IN HOLDING THAT THERE


WAS COMMON INTENTION BETWEEN SHER SHAH, GAJENDAR SHAH
AND SURI SHAH TO COMMIT OFFENCE UNDER SECTION 34 IPC,1860
AND THEREBY CONVICTING THEM OF THE SAID CHARGE BECAUSE:

a) Sher Shah, Gajendar Shah and Suri Shah did not acquire any common intention to
attract under the scope of Section 34 IPC;
b) The Act of the Appellants was not premeditated and was in the heat of the moment.

II) THE SESSION COURT WAS NOT JUSTIFIED IN CONVICTING THE


APPELLANTS UNDER SECTION 302 IF THE IPC,1860 BECAUSE:

a) The case does not fall in any of the clauses of Section 300 IPC, 1860 and there was no
intention of the Appellants to kill the deceased.
b) Appellants did not use any lethal weapon and no particular injury was sufficient to
cause death and the act was not premeditated
c) The case falls under the Exception 1 of Section 300 IPC, 1860 as the act of the
Appellants was grave and sudden and the death was caused by mistake or accident.

III) THE LIFE SENTENCE GIVEN BY THE SESSION COURT TO THE


APPELLANTS WAS NOT JUSTIFIED BECAUSE:

a) The Case falls under Section 304 of the Indian Penal Code, 1860 therefore does not
attract harsh punishment of life imprisonment.

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ARGUMENTS ADVANCED

I) WHETHER APPELLANT 1, 2 & 3 CAN BE PROSECUTED U/S 302 R/W


SECTION 34 OF THE INDIAN PENAL CODE, 1860?

It is most respectfully submitted to this Hon’ble Court-

1) That taking into consideration the statement of facts, it cannot be said


that Appellant 1, 2 & 3 had and intention to administer the use of lathi and give
blow on the deceased to finally cause death of the deceased.

2) That such an act in the spur of the moment does not attract heavy
punishment & penalty under relevant section of Indian Penal Code, which are:

Section 302: Punishment for Murder:


Whoever commits murder shall be punished with death, or [imprisonment for
life], and shall also be liable to fine.

Read with

Section 34: Acts done by several persons in furtherance of common intention:


When a criminal act is done by several persons in furtherance of 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.

3) That there are umpteen number of reasons which could earlier not be
brought to the attention of the Session court which the appellant most respectfully
submits before this Hon’ble Court for proving the non culpability of accused 1,2
& 3 as per the above mentioned Sections of the Indian Penal Code,1860.

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4) That the contention of the respondent till now that there was Common
Intention of Appellant 1,2 & 3 to kill the deceased cannot be taken into
consideration as they all went to the backyard of the house unarmed to investigate
on hearing the whispers coming.

1
5) In the case of Mahbub Shah v. Emperor and Chandrakant
Murgyappa Umrani & Ors. v. State of Maharashtra 2it was observed that“…to
invoke the aid of section 34 successfully, it must be shown that the criminal act
complained against was done by one of the accused persons in furtherance of
common intention of all and care must be taken not to confuse same or similar
intention with common intention…”. And this requirement was certainly not
satisfied in the present case as there was no dispute, malice or personal grudges
against the deceased by any of the appellant and requisite intention cannot be
attributed to the Appellants.

6) Moreover in the majority view taken by Sethi, J & Aggarwal, J (as they
then were) in the case of Suresh and Anr. v. State of U.P3 it was held that“…
Intention is to be judged by the act in relation to the surrounding
circumstances…” And such circumstances shows that it all happened in the heat
of the moment without predetermination of mind as A-2 brought one lathi from
inside the house which is a common household item instead of a lethal weapon.
Nothing prevented them from using a knife, which is also a common household
item although far more dangerous.

7) It was observed in the case of Marinal Das v. State of Tripura4 that“…


Section 34 requires a pre-arranged plan and presupposes prior concert therefore

1 (1945) 47 BOMLR 941

2 AIR 1999 SC 1557

3 (2001) 3 SCC 673

4 (2011) 9 SCC 479

12
there must be prior meeting of minds & it can be developed at the spur of the
moment but there must be pre-arrangement or pre-mediation concept.”This is not
in the present case as all of the appellant lost their temper on seeing Karim and
Naina together. If it would have been pre-arranged or pre-meditated to murder the
deceased they would have armed themselves with sharp lethal weapon at the time
of going to the backyard.

8) That the Supreme Court has in Nagraja v. State of Karnataka5held that


“A past enmity by itself, in our opinion, may not be a ground to hold for drawing
any inference of information of common intention amongst the parties…”and in
Girija Shankar v. State of U.P6 it was held that “Section 34 is only a rule of
evidence and does not create a substantive offence” and that“The distinctive
features of the section is the element of participation in action.”

9) That having regard to the background in which occurrence has taken


place the appellant were not actuated by common intention as if there would have
been malice of killing the deceased they would have not called Karim to their
house.

10) Thus it not only the prosecution which has gravely erred in invoking
Section 34 of the IPC against the appellants, but also the Sessions Courts which
has passed an order of conviction under Section 302 r/w Section 34 of the IPC.

II) WHETHER THE NATURE OF INJURIES AND THE NATURE OF WEAPON


WAS SUCH AS TO CAUSE DEATH OF A PERSON?

It is most respectfully submitted to this Hon’ble Court-

5 (2008) 17 SCC 277

6 (2004) 3 SCC 793

13
11) That it is pertinent to mention that in the case of Surinder Kumar v. UT,
Chandigarh7 the Supreme Court has held“…that if on a sudden quarrel a person
in the heat of the moment picks up a weapon which is handy & causes injuries
out of which only one prove fatal, he would be entitled to the benefit of the
exception.”It was further held that“the number of wounds caused during the
occurrence in such a situation was not the decisive factor what was important
was that the occurrence had taken place on the account of a sudden and un
predetermined fight & the offender must have acted in a fit of anger.” There was
absolutely no intention to kill the deceased on the part of the Appellants.
Admittedly, none of the appellants were carrying a weapon of such lethality
which could show their intent to commit an offence such as the present one.

12) In Sukhbir Singh v. State of Haryana 8the Supreme Court held that
“..All fatal injuries resulting in death cannot be termed as cruel or unusual for
the purpose of not availing the benefit of Exception 4 of Section 300 IPC”. After
the injuries were inflicted and the deceased had fallen down, the appellants are
not shown to have inflicted any other injury him. With regard to the facts on
record it is clearly shown that in the heat of passion upon a sudden provocation,
appellants with lathi not being a lethal weapon caused injuries at random and thus
did not act in a cruel or usual manner.

13) That in Sekar v. State9the Supreme Court convicted the accused under
Exception IV to Section 300 IPC instead of Section 302 where the deceased fell
on the ground after the accused had given injuries on his head and left shoulder,
accused again inflicted another blow on his neck.

7 [1989]2 SSC 217

8 (2002) 3 SCC 327

9 2002(8) SCC 354

14
14) In Perana v. Emperor10 It was observed that “the use of lathi is certainly
dangerous but is not so dangerous that one would suppose that anybody would be
in the ordinary course think that death is a probable cause of use of lathi. Our
experience is that lathis are frequently used and result in nothing more than
injuries which are simple hurts or at the most grievous hurts”. Appellants in the
heat of the moment without knowledge of the graveness of the weapon used lathi
which is present at every household in village and did not use any lethal weapon.

15) When there was only extortion by one of the accused and a wooden log
was hit on the head of the deceased which is a vital part of the body, the case was
found to be under section 304 and not one under section 302 in Suraj Dev v. The
State (Delhi Admn)11 Taking into consideration the aforesaid case it is pertinent
to reiterate that the appellants also used a lathi and not any lethal weapon.

16) In Jagtar Singh v. State of Punjab12, the accused had in the spur of the
moment inflicted a knife blow in the chest of the deceased. The injury proved
fatal. The doctor had opined that the injury was sufficient in the ordinary course
of nature to cause death. The Supreme Court observed that“…the quarrel was of
trivial nature, in these circumstances, it is a permissible inference that the
appellant at least could be imputed with the knowledge that he was likely to
cause death and the court altered conviction from Section 302 to Section 304
Part II of the IPC…” The facts on record show that none of the injuries by itself
was sufficient to cause death but were only cumulatively sufficient to cause
death.

III) WHETHER THE ACT OF THE DECEASED AMOUNTED TO GRAVE AND


SUDDEN PROVOCATION?

10 1936 ALL LJ 333

11 (CRL.)Appeal No. 103 of 2009

12 (1983) 2 SCC 342

15
It is most respectfully submitted to this Hon’ble Courts-

“Exception 1 to section 300 IPC- When Culpable Homicide is not murder:


Culpable Homicide is not murder if the offender, whilst deprived of the power of
self-control by grave and sudden provocation, causes death of the persons who
gave the provocation or causes the death of any other person by mistake or
accident.

17) That in K.M Nanavati v. State of Maharashtra 13 it was laid down by the
court that No abstract standard of reasonableness can be laid down of what
amounts to grave and sudden provocation. What a reasonable man will do in
certain circumstances depends upon the customs, manners, way of life,
traditional values etc.12) Circumstances which led to this ‘Act’ of the 3 Appellants
was after seeing karim and Naina together late at night at backyard of their house
in their small village in Haryana where customs, traditional values cannot be
compared to that of a city. There was no period of cooling down and this ‘Act’ of
the Appellants was in the spur of the moment.

18) It is pertinent to point out that Karim (deceased) used to meet Naina on
the weekends when her father was not at home on the pretext that he had come to
collect the money and on the date of incident also Karim met with Naina in her
backyard. These circumstances tantamount to provocation by the paramour
himself.

19) LORD GODDARD, C.J, in R. DUFFY14 defined provocation as:13)

"Provocation is some act, or series of acts, done by the dead man to the
accused which would cause in any reasonable person, and actually causes in
the accused, a sudden and temporary loss of self - control, rendering the
accused so subject to passion as to make him or her for the moment not master
of his mind” and that “…there are two things, in considering it, to which the
13 AIR 1962 SC 605

14 (1949) 1 ALL ER 932

16
law attaches great importance. The first of them is, whether there was what is
sometimes called time for cooling, that is, for passion to cool and for reason to
regain dominion over the mind. Secondly, in considering whether provocation
has or has not been made out, you must consider the retaliation in provocation-
that is to say, whether the mode of resentment bears some proper and
reasonable relationship to the sort of provocation that has been given.”

20) That the Appellants did not have time to cool down and regain their self
control. In this regard we may refer the pronouncement of judgement rendered by
Subba Rao, J (as he than was) in the celebrated pronouncement of K.M Nanavati
v. State of Maharashtra in which case the court noted that the accused clearly
indicated that he had not only regained his self control, but, on the other hand,
was planning for the future. Between 1.30 p.m. when he left his hours 4.20 p.m.,
when the murder took place, three hours had elapsed, and therefore there was
sufficient time for him to regain his self-control. Based on facts on record it is
clearly indicated that in the present case, the Appellants did not have the requisite
cool down period here as every thing happened in a spur of the moment within 1-
2 minutes.

21) In Boya Munigadu v. The Queen15,the Madras High Court held that“…
the State of the mind of the accused, having regard to the earlier conduct of the
deceased, may be taken into consideration in considering whether the subsequent
act would be sufficient provocation to bring the case within the Exception of
section 300 IPC…”

22) Further, In In Re C. Narayan16, it was held that“…the mental state


created by an earlier act may be taken into consideration in ascertaining whether
a subsequent act was sufficient to make the assailant to lose his self – control…”
23) Under the English Law, the provocation must be grave as well as
sudden. But, by way of judicial thinking, the Indian Criminal Law has gone
ahead. (Ref: K.M Nanavati v. State of Maharashtra AIR 1962 SC 605). In our

15 (ILR 3 MAD 33)

16 (A.I.R. 1958 A.P. 235)

17
system, there is the concept of "sustained provocation". It is concerned with the
duration of the provocation. There may be incidents/occurrences, which are such
that they may not provoke the offender suddenly to make his outburst by his overt
act. However, it may be lingering in his mind for quite some time, torment
continuously and at one point of time erupt, which would lead to loss of self
control, make his mind to go astray, the mind may not be under his
control/command and results in the offender committing the offence. The
sustained provocation/frustration nurtured in the mind of the accused reached the
end of breaking point, under that accused causes the murder of the deceased.

24) In Ayyanar v. State of Tamil Nadu 17, it was held that courts in the
decisions of BabuLal v. State18and Suyambukkani v. State of Tamil Nadu 19 have
added one more exception, known as ‘sustained provocation’. Therefore, while
considering whether there are materials to indicate that there is a grave & sudden
provocation as contemplated under Exception 1 to Section 300 IPC, sustained
provocation, on account of a series of acts more or less grave spread over a
certain period of time, would undoubtedly stand added to Exception 1 to Section
300 IPC. It is evident from the bare and apparent facts on record that the conduct
of the Appellants was not predetermined and there was no time to cool down
therefore the offence of murder is not made out as it was truly grave and sudden.

25) That in Sankaral Alias Sankarayee v. State20 it was held that“There are types of cases,
where there has been sustained provocation for a considerable length of time and there
would not have been a real sudden provocation immediately preceding the murder. In
such cases, the Courts have given the benefit of Exception 1 to Section 300, I.P.C. on

17

18 AIR 1960 All 223

19 [1989 LW (Crl.) 86]

20 [1989 L.W. (Crl.) 468]

18
the ground that the provocation which is the root cause for the commission of the
offence need not arise at the spur of the moment”.

26) It is humbly put forward that the Session Court has gravely erred in considering the
evidence in totality and in the light of the judicial pronouncement as aforesaid, has
wrongly charged the Appellants for the offence under section 300 IPC.

IV) WHETHER THE SESSION COURT WAS JUSTIFIED IN SENTENCING THE


APPELLANTS WITH LIFE IMPRISONMENT IN CONNECTION WITH THE
ACT COMMITTED BY THEM?

It is most respectfully submitted to this Hon’ble Court-

27) That taking into consideration of the peculiar facts and circumstances of the case, it
cannot be said that the conviction of the appellant under Section 302 IPC should be
upheld.

28) That the act committed does not fall under Sec 300 IPC but it does fall under Sec
299(c) IPC. Therefore such an act committed without any mens rea or without the
intention to kill does not attract heavy punishment & penalty under relevant section of
Indian Penal Code, which are:

Section 299: Culpable homicide


Whoever causes death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.

Section 304 Punishment for 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,

19
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.

29) That there are significant features of the case which are required to be taken into
consideration in awarding the appropriate sentence to the accused:

(i) Admittedly, the incident happened at the spur of the moment.

(ii) It is clear from the evidence on record that the appellants did not use any
lethal weapons to attack Karim.

(iii) The A-3, Suri Shah gave a lathi blows on the head and chest of the
deceased which proved fatal.

(iv) The other accused did not indulge in overt act therefore, except the
appellant, the other co-accused namely Sher Shah (appellant 1), Gajendar Shah
(appellant 2), should have been acquitted by the lower court. However all of
three appellants were convicted by session court.

(v) The incident took place on 8th August, 2010 and the deceased remained
hospitalized and ultimately died after three days of hospitalisation.

(vi) This is also true that there was no previous enmity between the parties.

30) Therefore, it is abundantly clear that there was no mens rea or intention to kill or that
there was prearranged plan or that the incident had taken place in furtherance of the
common intention of the accused persons, when all these facts and circumstances are
taken into consideration in proper perspective, then it is improper to maintain the
conviction of the appellant under Section 302 IPC.

31) The appellant having struck blows on the head and chest of the deceased with the lathi,
can be attributed with the knowledge that it would cause an injury which was likely to
cause death and not with any intention to cause the death of the deceased. The offence
committed by the appellant, therefore amounted to culpable homicide not amounting to
murder, punishable under Section 304 Part II of the Code.

20
32) In Virsa Singh v. State of Punjab 21 it was held that Culpable homicide would amount
to Murder if both of the following conditions were satisfied:

(a) that the act which causes death is done with the intention of causing a
bodily injury; and
(b) That the injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death.
Thus, it must be proved that there was an intention to inflict that particular bodily
injury which, in the ordinary course of nature, would be sufficient to cause death,
viz. that the injury found to be present was the injury that was intended to be
inflicted.

33) In Jagrup Singh v. State of Haryana22, the accused inflicted blow in the heat of the
moment in sudden fight with blunt side of Gandhala on head of the deceased which is a
vital part of the body causing his death. According to the doctors this particular injury
in the ordinary course of nature was sufficient to cause death. But the court altered the
conviction of accused from Section 302 to Section 304 Part II I.P.C as according to the
court, the intention to cause such an injury was likely to cause death was not made out.

34) In Gurmukh Singh v State of Haryana23Supreme Court held that “…in the absence of
any positive proof that the appellant caused the death of the deceased with the
intention of causing death or intentionally inflicted that particular injury which in the
ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III
of Section 300 IPC will be attracted…"

35) That the contention of the State that the act falls under Section 302 IPC can not be
sustained as, if the act of the appellants falls within either of the Clauses 1,2 and 3 of
Section 300, but is covered by any of the 5 Exceptions, it is punishable under the first
part of Section 304. If however, the act falls within Clause (4) of Section 300, and at
the same time covered by any of the five Exceptions to that Section it will be
punishable under the IInd part of Section 304, Indian Penal Code,1860.

21 (1958) SCR 1495

22 (1981) 3 SCC 616

23 (CRL.) Appeal No. 1609 of 2009

21
36) In Hem Raj v. State (Delhi Administration) 24 the Supreme Court stated that“…The
question is whether the appellant could be said to have caused that particular injury
with the intention of causing death of the deceased…” As the totality of the established
facts and circumstances do show that the occurrence had happened most unexpectedly
in a sudden quarrel and without pre-meditation during the course of which the appellant
caused a solitary fatal injury, he could not be imputed with the intention to cause death
of the deceased or with the intention to cause that particular fatal injury; but he could
be imputed with the knowledge that he was likely to cause an injury which was likely
to cause death. Because in the absence of any positive proof that the appellant caused
the death of the deceased with the intention of causing death or intentionally inflicted
that particular injury which in the ordinary course of nature was sufficient to cause
death, neither Clause I nor Clause III of Section 300 IPC will be attracted.

37) There are some factors which are required to be taken into consideration before
awarding appropriate sentence to the accused. Each case has to be seen from its special
perspective. The relevant factors are as under:
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several
days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without premeditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force
with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of
nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;

24 (1990) Supp. SCC 29

22
l) Incident occurred within the family members or close relations;
m) The conduct and behaviour of the accused after the incident. Whether the
accused had taken the injured/the deceased to the hospital immediately to
ensure that he/she gets proper medical treatment?

38) These are some of the factors which can be taken into consideration while granting an
appropriate sentence to the accused. The list of circumstances enumerated above is only
illustrative and not exhaustive. In our respectful submission, proper and appropriate
sentence to the accused is the bounden obligation and duty of the court. The endeavour
of the court must be to ensure that the accused receives appropriate sentence, in other
words, sentence should be according to the gravity of the offence to meet the ends of
justice.

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PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES RAISED,


AUTHORITIES CITED AND ARGUMENTS ADVANCED, IT IS PRAYED
THAT THIS HON’BLE COURT MAY GRACIOUSLY PLEASED TO:

1) Acquit Mr. Sher Shah (Appellant-1), Mr. Gajendar (Appellant-2), Mr.


Suri Shah (Appellant-3) for Murder under Section 302 read with Section 34 Indian
Penal Code, 1860.

2) Reduce the sentence of life imprisonment of the Appellants

3) Pass any such order as this Hon’ble Court may deem fit in the interest
of justice.

All of which is most humbly and respectfully prayed to set aside the order of the
Session court.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND


SHALL EVER PRAY.

Date : ___/____/____
Place : HARYANA
Counsels for the
Petitioner

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