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TC-15

SURANA AND SURANA NATIONAL TRIAL ADVOCACY MOOT COURT

COMPETITION, 2016

BEFORE THE COURT OF SESSIONS AT MAVADA

S.C. NO.101 OF 2016

STATE OF JAGUTAR
(PROSECUTION)
V.
ABHISHEK, ANGAD & DUSHYANT
(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 186, 107 & 304 READ WITH SECTION 34 OF THE INDIAN PENAL
CODE, 1860

UPON SUBMISSION TO THE HONBLE SESSIONS JUDGE

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................................................c

TABLE OF CASES: .................................................................................................................. E


BOOKS: ...................................................................................................................................H
STATUTES: .............................................................................................................................. I
STATEMENT OF JURISDICTION ......................................................................................................................... j
STATEMENT OF FACTS .................................................................................................................................. k
STATEMENT OF CHARGES ............................................................................................................................... l
SUMMARY OF ARGUMENTS ............................................................................................................................ l
ARGUMENTS ADVANCED .............................................................................................................................. 1

A. THAT THE ACCUSED CAN BE CHARGED UNDER S.304 OF IPC FOR HIS ACT.................... 1
1.

THERE WAS REASONABLE APPREHENSION ON THE PART OF THE INSPECTOR. ............. 1

2.

ACTS WHICH ARE JUSTIFIABLE BY LAW ........................................................................ 4

3.

LAW INTENDS TO PROVIDE RIGHT TO PRIVATE DEFENCE TO EVERY PERSON. ............ 5

4. THE DEATH OF THE PUBLIC SERVANT WAS AN ACCIDENT UNDER S.80 OF THE INDIAN
PENAL CODE .......................................................................................................................... 6
B. THAT THE CO-ACCUSED ACTUALLY AIDED THE CAUSE OF THE DEATH OF THE
DECEASED WITH COMMON INTENTION OR NOT. ................................................................... 9
1.

THAT WHEN THE ACT LACKS ACTIVE STIMULATION IT DOES NOT AMOUNT TO

ABETMENT. ........................................................................................................................... 10

2.

THAT MERE PRESENCE OF A PERSON DOES NOT DENOTE INSTIGATION FOR


ABETMENT. ........................................................................................................................... 11
3.

THERE WAS NO COMMON INTENTION AMONGST THE ACCUSED AND CO-ACCUSED.... 12

C. THAT THE ACTS OF THE ACCUSED AND CO-ACCUSED AMOUNTED TO OBSTRUCTING


THE PUBLIC SERVANT UNDER 186 OR NOT? ........................................................................ 13
1.

ACTS NOT AMOUNTING TO OBSTRUCTING PUBLIC SERVANTS..................................... 14

PRAYER ...................................................................................................................................................... o

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LIST OF ABBREVIATIONS
AIR

All India Reporter

All

Allahabad High Court

Cal

Calcutta High Court

Cri LJ / Cr LJ

Criminal Law Journal

Cr.P.C.

Code of Criminal Procedure

Del

Delhi High Court

DW

Defence Witness

Ed.

Edition

Guj

Gujarat High Court

IPC

Indian Penal Code

IC

Indian Cases

Mad

Madras High Court

n.

Foot Note no.

Ori

Orissa High Court

p.

Page No.

P&H

Punjab and Haryana High Court

Pat

Patna High Court

PW

Prosecution Witness

Raj

Rajasthan High Court

SC

Supreme Court

SCC

Supreme Court Cases


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SCJ

Supreme Court Journal

SCR

Supreme Court Reporter

Sec.

Section

v.

Versus

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INDEX OF AUTHORITIES
TABLE OF CASES:
1. Abdul Hadi v. Emperor, AIR 1934 All 829.....6
2. Abid v State of Uttar Pradesh (2009) 14 SCC 710..3
3. Al Choung v Emperor AIR 1932 Rang 21.14
4. Alingal Kunhinayam ,(1905) 23 Mad 454...5
5. Arjun v State of Maharashtra (2012) 5 Scale 52, AIR2012 SC 2181.....2
6. Arun v State of Maharashtra (2009) 4 SCC 615....3
7. Atmendra v. State of Karnataka 1998 CrLJ 2838 ...7
8. B. Ammu v. State of T.N., 2009 CrLJ 866 (Mdr) .......10
9. B.S.Survada v. State of Gujarat , 1972 CrLJ 1574 (1577) Guj....6
10. Babulal Bhagwan Khandare v State of Maharashtra (2005) 10 SCC 404.4
11. Badri Gope v King-Emperor AIR 1926 Pat 237 ..16
12. Baroda Kanto Prananik, (1896) 1 CWN 74..14
13. Bihari Rai v. State of Bihar, 2009 CrLJ 340 (SC)...4
14. Buta Singh v State of Punjab AIR 1991 SC 1316...3
15. Chand Basha v. State, 1999 CrLJ (AP) 3441.....11
16. Chathur Nath v. Emperor AIR 1920 Bom 224....8
17. Dani Singh v State of Bihar 2005 SCC (Cr) 127...13
18. Darshan Singh v State of Punjab AIR 2010 SC 1212.....2
19. Deo Narain v State of Uttar Pradesh AIR 1973 SC 473.4
20. Dhaneswar Mahakud v State or Orissa (2006) 9 SCC 307...12
21. Dharminder v State of Himachal Pradesh AIR 2002 SC 3097..2
22. Dominic Varkey v State of Kerala AIR 1971 SC 1208....2
23. Dukhmochan Pandey v State of Bihar KIR 1998 SC 40..5
24. Duyanu Hariba Mail v State of Maharashtra (1970) 3 SCC 7....4
25. Emperor v. Tohfa AIR 1933 All 759 ..4
26. Emperor v. Abdul Hamim, AIR 1942 All 74 ......5
27. Fenwick v. Schmalz (1868) LR 3 CP 313 p. 316....7
28. Gangadhar Behera v State of Orissa (2002) 8 SCC 381.....6
29. Gaya Prasad Ram lal v State of Maharashtra AIR 1971 SC 1112..11
30. Girish Saika v. State of Assam, 1993 CrLJ 3808 ( Gau).... 7,9
31. Gurdatta Mal v State of Uttar Pradesh AIR 1965 SC 257....3,12
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32. Gurmit Singh v State of Punjab AIR 2001 SC 2977.....2


33. H Parakh v King-Emperor AIR 1926 Oudh 202 ....5
34. Harish Kumar v. State of M.P. 1996 CrLJ 3511 (SC) ....6
35. In State of U.P. v. Niyamat, AIR 1987 SC 1652..5
36. Jagtar Singh v State of Punjab AIR 1993 SC 970...8
37. Jai Devi v. State of Punjab AIR 1963 SC 612 (617) ..5
38. James Martin v State of Kerala (2004) 2 SCC 203..10
39. Jamuna Singh v. State of Bihar, AIR 1967 SC 553...10
40. Jasobant Narayan Mohapatra v. State of Orissa, 2009 CrLJ 1043 (Ori).10
41. Jogendra Nath Mukhejee, (1897) 24 Cal. 320.5
42. Joginder Ahir v State of Bihar (1971) 3 SCC 449.....13
43. Karali Bauri v. Subhas Das Musib, 1983 CrLJ 1474 (Cal) .8
44. Khora Ghasi, 1978 CrLJ 1305 ( Orissa) ...10
45. Krishnan v State of Tamil Nadu AIR 2006 SC 3037..3
46. Kulwant Singh v State of Punjab (2004) 9 SCC 257...2
47. Lakshmi, (1886) Unrep Cr C 303...12
48. Lala Ram v. Hari Ram, AIR 1970 SC 1093.6
49. Laxman Sahu v State of Orissa AIR 1988 SC 83....4
50. Laxman Singh v Poonam Singh AIR 2003 SC 32048
51. Lonkaran Multanchand v Emperor AIR 1947 Nag 60 .....15
52. Mahbub Shah v Emperor (1945) 46 Cr LJ 689.13
53. Matu Ram v Emperor AIR 1924 Lah 238 .14
54. Mohan Singh v State of Punjab AIR 1963 SC 174....11
55. Mohan Singh v State of Punjab AIR 1975 SC 2161.....11
56. Mohd Khalid v State of West Bengal (2002) 7 SCC 334.................................2
57. Mohd Ramzani v State of Delhi AIR 1980 SC 1341...3
58. Mohinder Pal Jolly v State of Punjab AIR 1979 SC 577..................11
59. Munshi Ram v Delhi Administration AIR 1968 SC 702..9
60. Muthammal v. Maruthatlal, 1981 CrLJ 833: 1981 LW (Cr) 80....10
61. Nagarathinam v State (2006) 9 SCC 57..9
62. Nakul Barik v. State, AIR 1967 Ori 1 : 1967 CrLJ 97.1
63. Onkarnath Singh v State of Uttar Pradesh AIR 1974 SC 1550..8
64. Pandurang v State of Hyderabad AIR 1955 SC 216.9
65. Parasa Raja Manikyala Rao v State of Andhra Pradesh AIR 2004 SC 132..13
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66. Partap v State of Uttar Pradesh AIR 1976 SC 966...3


67. Parvathi v. State of Punjab, 1968 SCD 293..6
68. Patreswar v. State of Assam, 1989 CrLJ 196 (Gau)..9
69. Phudki v State AIR 1955 All 104 .14
70. Puran Singh v State of Punjab AIR 1975 SC 1674...6
71. Purshotam Das v State of Punjab AIR 1965 Punj 264 .14
72. Purushothaman v. State of Kerala, 1989 CrLJ NOC 184 (Ker).....9
73. Raj Pal v State of Haryana (2006) 9 SCC 6783
74. Raja Ra, 1977 CrLJ NOC 85 (ALL) ......8
75. Raja Sekharan v State Represented by Inspector of Police AIR 2002 SC 3667.3
76. Ram Dahin Singh v State of Bihar (1970) 3 SCC 26...5
77. Ram Ji Lal v. St. of Rajasthan, 1990 CrLJ 392 (RAJ).7
78. Ram Pravesh (1944) 23 Pat 328..6
79. Ram Pyare v Prem Shankar AIR 2009 SC 552.......8
80. Ram Singh v. State of M.P., 1973 Jab LJ 971..1
81. Ramabatar Agarwalla v. State of Orissa, 1983 CrLJ 122(Ori).....12
82. Ramnath v. Emperor, AIR 1925 All..13
83. Re Lakshmi Narayana Aiyer, AIR 1918 Mad 738....10
84. Rizan v State of Chhattisgarh , through the Chief Secretary, Government of
Chhattisgarh, Raipur,Chhattisgarh, (2003) 2 SCC 661.3
85. S.C. Kurson v. St. of Gujrat (1969) 3 SCC 20036
86. Salim Zia v State of Uttar Pradesh AIR 1979 SC 391...2
87. Satya Narain Yadav v Gajanand & Anr AIR 2008 SC 3284.4
88. Sawan Seth v. Emperor, AIR 1933 Pat 144...5
89. Scaria @ Thankan v State of Kerala AIR 1995 SC 2342, ............3
90. Deo Narain v State of Uttar Pradesh AIR 1973 SC 473...4
91. Shri Ram v. State of U.P., AIR 1975 SC 17512
92. Shrilal v. State of MP., AIR 1953 MP 15511
93. Shriram v State of Madhya Pradesh AIR 2004 SC 4919
94. State of Bihar v Nathu Pandey AIR 1970 SC 27..13
95. State of Madhya Pradesh v Ramesh (2005) 9 SCC 7058
96. State of Orrisa v. Chakradhar Behera, AIR 1964 Ori 262 2
97. State of U.P. v. Niyamat, AIR 1987 SC 1652..1,4
98. State of U.P. v. Ram Sanehi, 1969 CrLJ 952 2
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99. State of Uttar Pradesh v Chatur Singh (2005) 13 SCC 360..2


100. State of Uttar Pradesh v Gajey Singh (2009) 11 SCC 414....2
101. State of Uttar Pradesh v Ram Swarup AIR 1974 SC 1570...4
102. State of Uttar Pradesh v Rohan Singh (1996) Cr LJ 2884...13
103. State of Uttar Pradesh v Suresh Chand Shukla AIR 1991 SC 968..............................13
104. Subramani v State of Tamil Nadu AIR 2002 SC 2980................12,13
105. Sukhdev Singh v State of Punjab (1997) SCC (Cr) 831...11
106. Suresh v. State of U.P. AIR 2001 SC 1344..12
107. Suryanarayana v Thota Simhadri AIR 1934 Mad 664 (2)...14
108. Tara Singh v State of Madhya Pradesh AIR 1981 SC 950....4
109. Thakur Mahato v State of Bihar (1972) Cr LJ 835 (Pat)....2
110. Thakur Prasad v Emperor AIR 1936 Pat 74 ...14
111. Tunda, 51 CrLJ 402: AIR 1950 ALL 95....8
112. Vijayee Singh v State of Uttar Pradesh AIR 1990 SC 1459.3
113. VishvasAba Kurane v State of Maharashtra AIR 1978 SC 4144
114. Vithal In karan i More v State of Maharashtra AIR 2002 SC 271513
115. Yogendra Morarji v State of Gujarat AIR 1980 SC 660....3
BOOKS:
1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)
2.

Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal


Jurisprudence, (2nd Ed 1989)

3.

Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4.

Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5.

Harris, Criminal Law, (22nd Ed. 2000)

6.

Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

7.

I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)

8.

I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

9.

II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)

10. II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)


11. II, Princeps Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)
12. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)
13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003)
14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
15. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
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16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)


17. Modis Medical Jurisprudence and Toxicology, (23rd Ed. 2010)
18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology,
(6th Ed. 2002)
19. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
21. Sarkar, Law of Evidence, (13th Ed,1990)
22. Saxena & Gaur, Arms and Explosives, (10th Ed. 2012)
23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)
24. Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)
25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)

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STATEMENT OF JURISDICTION

The Defense submits that the Honble Court of Sessions, Mavada has Jurisdiction to try the
instant matter under Section 209 r/w Section 177 of the Code of Criminal Procedure, 1973.

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STATEMENT OF FACTS

Abhishek and Angad are doing a masters degree in political science & administration from the
presidency college (college) in Mavada, capital city of Jagutar, Union of Rabat. Both belong
to the Lepat community (community)Abhishek contested the college union (union)
election and was elected as its president in 2015.

Tanya and Natasha are students of Final Year of B.A. Political Science & Administration.
They are also Members of the Union. They complained to Abhishek that two boys in particular
were teasing them regularly. One evening when they were standing at the bus stop; the two
boys came in a motorcycle and started teasing them. Abhishek threatened them with dire
action. When a few people among the public started abusing them they left.

The incident repeated on March 30, 2016. Abhishek and Angad were furious and they started
pelting stones at them and they hurriedly drove away by showing sign of pistol by their hands.
In the evening after college hours, a police officer accosts Abhishek and Angad and threatens
them saying keep your trap shut and mind your own business otherwise i will have to show
you my stuff. He also said i know your kind of people who support anti-nationals, i have
dealt with them. Abhishek discussed with his friend Dushyant who is a local leader of the
political party, to which the union is affiliated, who said iski yeh himmat, salley ko mar dalo, kam
se kam hamare neta toh khush honge

After a week on April 7, 2016 the boys came again to tease the girls near the bus stop.
Abhishek and Angad started pelting stones at the bikers. The people standing at the bus stop
started running in panic. Suddenly the inspector comes from behind and slaps Abhishek and
violently threatens him saying i will teach you a lesson you will never forget. I have taught
this lesson to many. During the fracas, the inspector puts his hand on his belt showing the gun
holster.

Angad shouted he is going to shoot you, quickly escape. Abhishek in a fit of rage runs and
takes a rod that was lying down in the auto garage next to the bus stop and throws it at the
inspector. The inspector not expecting this gets hit on the head and falls awkwardly on the
pavement and gets hit on the head again by the stump of a tree. Inspector was declared dead.
Abhishek was arrested along with his friend Angad and charged with manslaughter of a police
officer on duty.

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STATEMENT OF CHARGES
CHARGE 1
Abhishek Lepat has been charged under Section 186, 304 read with Section 34 the Indian
Penal Code, 1860 for the manslaughter of a police officer on duty.
CHARGE 2

Angad Lepat - has been charged under Section 186,107, 304 read with Section 34 the Indian
Penal Code, 1860 for the manslaughter of a police officer on duty.
CHARGE 3

Dushyant - has been charged under Section 107, 304 read with Section 34 the Indian
Penal Code, 1860 for the manslaughter of a police officer on duty.

SUMMARY OF ARGUMENTS
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A. THAT

THE ACCUSED AND THE CO-ACCUSED ARE SHOULD BE CHARGED UNDER

304

OF

IPC.
It is humbly submitted that the deceased caused reasonable apprehension in the minds of the
accused and the co-accused that he could cause them grievous hurt or even death on the day
when the act took place by trying to take out his gun and also few days before that when he came
to meet them and gave them a warning. While the deceased beat the accused, Abhishek and was
trying to take out his gun; Abhishek acted in private defence and threw a metal rod towards the
deceased to protect himself and his friend Angad. The hitting of the rod on the head of the
deceased and causing a fatal injury was a mere accident and misfortune. The accused never
intended to so nor had the knowledge that it would result in the death of the deceased. The
accused acted in private defence and thus pleads not guilty.
B. THAT

THE CO-ACCUSED AIDED THE ACCUSED WITH HIS ACT AND THUS CAUSED

ABETMENT.

It is humbly submitted that the moment the act took place nothing was premeditated about it, it
was a sudden fight where the deceased beat the accused in his head and then the accused acted in
private defence against him. The co-accused Angad never said anything which would lead to
instigation which is an essential element of Abetment under S.186 of IPC. There was no
intention of any of them for the death of the deceased. Moreover no conspiracy was made against
the death of the deceased which is also an element of Abetment and thus the accused and coaccused should not be held liable for Abetment.
C. THAT THE ACCUSED AND CO-ACCUSED OBSTRUCTED A PUBLIC SERVANT WHILE HE WAS
DISCHARGING HIS LAWFUL DUTIES.

It is humbly submitted that the public servant, Amit Chaudhary was intoxicated at the time of the
act as shown in the forensic reports, was not under the color of his office and also his actions
were jot justifiable by law. Public servants are restricted to beat citizens and here in this present
matter Amit Chaudhary did it and hence this indicated that he was discharging unlawful duty.
Stopping a person who is beating you for no reason is not obstruction especially when that
person is a public servant who is not doing his lawful duty. Therefore the Abhishek and Angad
should not be punished under S.186 of IPC.
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ARGUMENTS ADVANCED
A. THAT THE ACCUSED CAN BE CHARGED UNDER S.304 OF IPC FOR HIS ACT.
It is humbly submitted before this Honble Court that the act of the accused was one in Private
defense under S. 99 of the Indian Penal Code and thus he should not be held liable for culpable
homicide. The fact that there was reasonable apprehension of death to the accused lead him to
throw the metal rod towards the police inspector which he didnt even aim at the head nor did he
intended for his death and moreover the police officer was intoxicated and was not discharging
his duty as justifiable by law. He was also not in his uniform which is considered to be the
color of his office at the time of the act and therefore the accused had all the right of private
defense against him. The words not strictly justifiable by law are not intended to cure the want
of jurisdiction but only an erroneous exercise of it.
When the error affects the procedure rather than the principle it would be covered by the clause.1
The first sentence of section 99 makes it clear that section 99 is only attracted when there is
reasonable apprehension of death or grievous hurt. So, when a few constables after illegally
arresting a person was carrying him towards the police station and the villagers with lathi and
pharsas and spears follow them with the view to secure his release and to deter them one
constable fired shots(although in air) there comes in, the reasonable apprehension of death and
grievous hurt. If in this backdrop the villagers forcibly extricate the arrested innocent victim and
in the process one person accompanying the arresting party dies, the accused can invoke the aid
of right of private defense.2
1. THERE WAS REASONABLE APPREHENSION ON THE PART OF THE INSPECTOR.
According to Section 99, IPC, there is right of private defense against an act which reasonably
cause the apprehension of death or grievous hurt, if done or attempted to be done by a public
servant even in good faith under color of his office, though that act may not be strictly justifiable
by law.3 The words an act which does not reasonably cause the apprehension of death or
1

Ram Singh v. State of M.P., 1973 Jab LJ 971

State of U.P. v. Niyamat, AIR 1987 SC 1652 : 1987 CrLJ 1881 : (1987 ) 2 SCJ 225 : (1987) 3 SCC 434 : 1987 Cr
App R (SC) 119.
3

Nakul Barik v. State, AIR 1967 Ori 1 : 1967 CrLJ 97.

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grievous hurt show that even the police officers acts, does not have the immunity when
extended to reasonable cause of apprehension of death or of grievous hurt done by him. So, if
placer officer whips out his gun and points it to the accused, he must have entertained a
reasonable apprehension of death and in that situation their assault on the police party would be
protected by their right of private defense of person.4 Protection by acts of public authorities
referred to in section 99, Penal Code, must mean such protection as can preserve the status quo.5
As soon as reasonable apprehension of danger arises, the right of private defense may be
exercised6. He must apprehend some physical violence from his opponent and it must be
reasonably apprehensive of death or grievous hurt7.The court on an objective test and on the facts
and circumstances of each case must arrive at the conclusion that the situation was such as was
likely to reasonably cause apprehension of death or grievous hurt.8
The accused is not required to establish it beyond reasonable doubt.9 It would be sufficient if he
merely makes out a prima facie case. It is also not necessary to lead evidence to support his plea
if the evidence on record and circumstances themselves show or prove the plea.10 His burden
stands discharged by showing preponderance of probabilities11in favor of the plea on the basis of
the evidence, emanating from either prosecution or defense, on record.12 The accused may

State of U.P. v. Ram Sanehi, 1969 CrLJ 952 (All) : 1968 All WR (HC) 39 : 1968 All Cr R 34.

State of Orrisa v. Chakradhar Behera, AIR 1964 Ori 262 : (1964) 2 CrLJ 696.

Mohd Khalid v State of West Bengal (2002) 7 SCC 334, (2002) SCC (Cr) 1734.

Kulwant Singh v State of Punjab (2004) 9 SCC 257, (2004) SCC (Cr) 1441; State of Uttar Pradesh v Gajey
Singh (2009) 11 SCC 414, Darshan Singh v State of Punjab AIR 2010 SC 1212, (2010) Cr LJ 1393 (SC), (2010) 2
SCC 333; Arjun v State of Maharashtra (2012) 5 Scale 52, AIR2012 SC 2181, 2012 (5) SCC 530.
8

State of Uttar Pradesh v Chatur Singh (2005) 13 SCC 360, (2006) 2 SCC (Cri) 245.

Dharminder v State of Himachal Pradesh AIR 2002 SC 3097, (2002) 7 SCC 488.

10

Thakur Mahato v State of Bihar (1972) Cr LJ 835 (Pat).

11

Gurmit Singh v State of Punjab AIR 2001 SC 2977, (2001) 9 SCC 681; Arun v State of Maharashtra (2009) 4 SCC
615, (2009) Cr LJ 2065 (SC).
12

Salim Zia v State of Uttar Pradesh AIR 1979 SC 391, (1979) Cr LJ 323 (SC).
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establish or sustain his plea on the prosecution evidence itself13 recorded under the Code of
Criminal Procedure 1973.14 The court has to examine probabilities in appreciating his plea.15 He
is, therefore, entitled to be acquitted if upon a consideration of the evidence as a whole, including
the evidence given in support of the plea of the general exception, a reasonable doubt is created
in the mind of the court about the guilt of the accused.16
Evidence as a whole must be considered whether it comes from the side of the prosecution or the
defence,

17

to determine whether the infliction or the injuries for which an accused is prosecuted

are either proved by a balance of probabilities to have been inflicted in the course of exercise of
the right of private defence or even if the accused fails to do that, it is sufficient to make the
prosecution case doubtful on an ingredient of the offence18 such as the existence of mens rea. 19
The right of self-defense when raised cannot be dismissed summarily.20 It is a substantial and
arguable point of law.21 It cannot be based on surmises and speculations22 and while considering
it the entire incident must be examined with care and viewed in proper setting.23 It is not proper
for the court to ignore the evidence of defence witness which had substantiated the accused plea

13

Rizan
v
State
of
Chhattisgarh , through
the
Chief
Secretary, Government
of
Chhattisgarh, Raipur,Chhattisgarh, (2003) 2 SCC 661, (2003) Cr LJ 1226 (SC); Krishnan v State of Tamil
Nadu AIR 2006 SC 3037, (2006) 11 SCC 304, (2006) Cr LJ 3907 (SC).
14

Yogendra Morarji v State of Gujarat AIR 1980 SC 660, (1980) 2 SCC 218, (1980) Cr LJ 459 (SC).

15

Abid v State of Uttar Pradesh (2009) 14 SCC 710, AIR 1998 SC 2381.

16

Partap v State of Uttar Pradesh AIR 1976 SC 966,;[1976] 1 SCR 757, (1976) SCC (Cr) 303; Buta Singh v State
of Punjab AIR 1991 SC 1316, (1991) 2 SCC 612, (1991) Cr LJ 1464 (SC).
17

Gurdatta Mal v State of Uttar Pradesh AIR 1965 SC 257, (1965) 1 Cr LJ 242 (SC).

18

Mohd Ramzani v State of Delhi AIR 1980 SC 1341, (1980) Supp SCC, (1980) Cr LJ 1010 (SC).

19

Vijayee Singh v State of Uttar Pradesh AIR 1990 SC 1459, (1990) 3 SCC 190, (1990) Cr LJ 1510 (SC).

20

Scaria @ Thankan v State of Kerala AIR 1995 SC 2342, (1995) Cr LJ 3990 (SC).

21

Duyanu Hariba Mail v State of Maharashtra (1970) 3 SCC 7.

22

Rizan v State of Chhattisgarh (2003) 2 SCC 661, (2003) Cr LJ 1226 (SC).

23

Raj Pal v State of Haryana (2006) 9 SCC 678, (2006) 3 SCC (Cri).
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of private defence and reverse the verdict of acquittal when two views of the evidence are
reasonably possible.24
The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises

25

from an attempt or threat to commit the offence though the offence

may not have been committed and it continues as long as such apprehension of danger to the
body continues.26 The right of private defence is available for protection against apprehended
unlawful aggression.27 In the present matter it is clear from the fact sheet that Amit Chaudhary
had grudges against the accused and he took it out on him in an aggressive manner by beating
him and by trying to take out his gun to shoot him and thus the private defence which was
exercised by accused should be considered a valid one. The right of private defence is available
only to one who is suddenly confronted with immediate necessity of averting an impending
danger not of his creation and the necessity can be, real or apparent.28
2. ACTS WHICH ARE JUSTIFIABLE BY LAW
The word not strictly justifiable by law is not intended to cure the want of jurisdiction but only
an erroneous exercise of it.29 The Accused in the present case had the circumstance for
apprehension that either death or grievous hurt would be caused to him. Right of Defense
pleaded by Abhishek is a valid one and not on ground of surmises and speculation.30
In a case the Allahabad High Court impressed that it is not only proper and advisable but really
necessary that when police officer act in the discharge of their official duty, they should be
clothed in their uniform. If they fail to do so, they cannot validly seek the protection to the court.
24

Tara Singh v State of Madhya Pradesh AIR 1981 SC 950, (1980) Supp SCC 466, (1981) Cr LJ 483 (SC).

25

State of Uttar Pradesh v Ram Swarup AIR 1974 SC 1570, (1974) 4 SCC 764, (1974) Cr LJ 1035 (SC).

26

Babulal Bhagwan Khandare v State of Maharashtra (2005) 10 SCC 404; Raj Pal v State of Haryana (2006) 9
SCC 678, (2006) 3 SCC (Cri) 361.
27

Deo Narain v State of Uttar Pradesh AIR 1973 SC 473, (1973) Cr LJ 677 (SC);Kulwant Singh v State of
Punjab (2004) 9 SCC 257, (2004) SCC (Cr) 1441.
28

Laxman Sahu v State of Orissa AIR 1988 SC 83, (1986) Supp SCC 555.

29

1969 Mad LW Cr 242 (Mad). In State of U.P.v.Niyamat, AIR 1987 Sc 1652 : (1987) 3 SCC 434 : 1987 CrLJ 1881

30

Bihari Rai v. State of Bihar, 2009 CrLJ 340 (SC) : AIR 2009 SC 18.

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Consequently where a Police Officer having no right or authority to arrest a person seeks to
arrest him without being in uniform, such person is entitled to a right of private defense and his
right is not taken away by section 99, I.P.C.31 in the present case the police inspector Amit
Chaudhary was not in his uniform at the time of the incident, hence there exists the right of
private defence with the accused.
There is a marked difference between the acts which are wholly illegal in one hand & the act
which may not be strictly Justifiable by law. The Law does not protect the illegal acts & the acts
committed by a public servant without jurisdiction. Act not strictly justifiable by law, does not
cover an act which is wholly illegal & totally without jurisdiction. Section 99 applies to acts
where jurisdiction is wrongly exercised.32 When a police party having no jurisdiction to go to a
village to recover a lady to restore her to her father, goes to the village, the villagers can use
force to repel them, the accused persons are not guilty under IPC.33
If the act of public servant is ultra vires the right of private defense may be exercised against
him.34
3. LAW INTENDS TO PROVIDE RIGHT TO PRIVATE DEFENCE TO EVERY PERSON.
The law does not intend that a person must run away to have recourse to the protection of public
authorities when he is attacked instead of defending himself.35 In the leading Supreme Court case
on the point36it is stated: in a well ordered civilized society it is generally assumed that the state
would take care of the person and that normally it is the function of the state to afford protection
to such persons. This is however, does not mean that a person suddenly called upon the face an
assault must run away and thus protect him. He is entitled to resist the attack and defend himself.
In other words where an individual citizen is faced with a danger and immediate aid from the

31

Enperor v. Abdul Hamim, AIR 1942 All 74 : 43 CrLJ 338 : 1942 All LJ 32 : ILR 1942 All 35 : 198 IC 264

32

Sawan Seth v. Emperor, AIR 1933 Pat 144: 34 CrLJ 726; 144 IC 178.

33

Ram Ji Lal v. St. of Rajasthan, 1990 CrLJ 392 (RAJ).

34

Jogendra Nath Mukhejee, (1897) 24 Cal. 320; Tulsi Ram, (1888) 13Bom 168

35

Alingal Kunhinayam ,(1905) 23 Mad 454.

36

Jai Devi v. State of Punjab AIR 1963 SC 612 (617) : (1963) 1 CrLJ 495.

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state machinery is not readily available; the individual is entitled to protect himself. If the right
of private defence has already arisen, it is not expected that a person entitled to exercise it should
have recourse to the protection of the public authorities. He is entitled in view of the immediate
danger of injury, to defend it by exercising his right instead of having recourse to the public
authorities.37
In a further case before SC there was direct confrontation of accused with the complaint party in
which accused seeing danger to his life and lives of member of his family fired an only shot in
which the deceased was killed. It was held that the right of private defense was not exceeded and
the accused was entitled to the acquittal on ground of right of private defense of person.38
Looking to the plain language of Section 100 of I.P.C. it appears that, the question whether a
person has a right of private defence in a given case depends upon manner in and the ferocity
with which he is attacked and the apprehension in his mind resulting from such an attack and not
on the question whether, he was armed or otherwise. If in view of the manner of attack he has a
genuine apprehension that the person assaulting him would either cause his death or grievous
hurt to him he would be justify in causing the death of his assailant in exercise of the right of
private defense irrespective of the fact whether assailant was armed or not.39
4. THE DEATH OF THE PUBLIC SERVANT WAS AN ACCIDENT UNDER S.80 OF THE INDIAN
PENAL CODE
This section exempts the doer of an innocent or lawful act in an innocent or lawful manner or
without any criminal intention or knowledge from any unforeseen evil result that may ensue
from accident or misfortune. The act is done accidentally or by misfortune, it is done without any
criminal intention or knowledge and accident occurs while doing a lawful act in a lawful manner
and by lawful means, wherein due care and caution is exercised. So in order to attract the
protection under Section 80 aforesaid circumstances must be shown to have existed at the time of
the incident: (1) That the act in question was without any criminal intention or knowledge; (2)

37

Abdul Hadi v. Emperor, AIR 1934 All 829.

38

Harish Kumar v. State of M.P. 1996 CrLJ 3511 (SC) : (1996) 9 SCC 667.

39

B.S.Survada v. State of Gujarat , 1972 CrLJ 1574 (1577) Guj.

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That the act was being done in a lawful manner by lawful means; and (3) That the act was being
done with proper care or caution.40
An effect is said to be accidental when the act by which it is caused is not done with intention of
causing it and when its occurrence as a consequence of such act is not so probable that a person
of ordinary prudence, ought, under the circumstances in which it is done, to take reasonable
precautions against it

41

. An accident is something that happens out of the ordinary course of

things.42 The idea of something fortuitous and unexpected is involved in accident. In offences
for which a particular mental element is required is that defencing that although the defendant
did the acts which would be criminal if done with intent, they were done by the accident or by
inadvertence so that the mental element was absent.43 The accused was attacked when he was
asleep at night by his brother who tried to strangulate him, apprehending imminent death, the
accused aimed a blow at his assailant brother with a piece of bamboo on which he could lay a
hand and the blow accidently struck the head of his intervening father as a result of which he
ultimately died. It was held that, the accused exercised his lawful right of self-defence and the
blow felt on the head of his father by accident and misfortune and he was fully protected by
section 80 and 106 and his conviction under section 304 was set aside.44
As laid down in Cross and Jones45: Accident is a word which has several shades of meaning
but, when we speak of the defence of accident in a case in which the conscious conduct of the
accused constitute the actus reus of the crime charged, the allegation always is that the accused
did not intend to produce the prohibited consequences. Abhishek who was conscious of and in
control; of his bodily movements and aware of all relevant circumstances did not intend or
foresee that his conduct would have the prohibited consequences; in this case he should be
provided defence of accident. In a case the accused party was in possession and grew crop
40

Atmendra v. State of Karnataka 1998 CrLJ 2838 : AIR 1998 SC 1985

41

STEPHENSS digest of Criminal Law, 9th Edn. Art. 316

42

Fenwick v. Schmalz (1868) LR 3 CP 313 p. 316

43

Halsburys law of England , 4th Edn., Vo, 11

44

Girish Saikia v. Subhas Das ,1983 CrLJ 1474 (Cal) : 1983(2) Crimes 626 : 87 Cal WN 844.

45

CROSS & JONES, Introduction to Criminal Law, 9 th Edn.

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thereon, the prosecution party came to harvest the crop. The accused came over the land with a
loaded gun which accidentally fired and caused death to one who folded hands was entreating
them to stop the scramble.
The accused is given the benefit of Section 80 of IPC and the High Court held further that the
fact that gun was not intentionally used, alone will not bring the case within the exception. It has
to be established that it happened in the course of doing a lawful act in a lawful manner by
lawful means and with proper care and caution. Coming upon the land with a gun when the
harvested paddy was attempted to be removed was not unlawful.46 An injury is said to be
accidentally caused whenever it is neither willfully nor negligently caused.47 Where the accused
fired a shot at his assailant who escaped but four other people were injured and one of them
unfortunately expired, it was held that the accused was not liable for the fatal injury to an
innocent person as his case fell within the scope of Section 80 read with Section 96 and 100
I.P.C.48
Thus, when accused and victim are engaged in a friendly wrestling bout, but during the wrestling
the victim receives an injury resulting in his death, the accused is protected by section 80 I.P.C.49
In a case a lady with the child in her hand intervened, apparently unexpectedly, in the course of a
scuffle between accused No. 2 and his party on the one hand and her husband and his brother on
the other hand. It was about the middle of the night that this took place and blow which was
aimed by accused No. 2 at the husband of the woman, whom he intended to attack, fell
unknowingly on the child. It was held the assailant only intended to cause simple hurt to the
husband of the lady and he was held liable not of culpable homicide but of simple hurt50.
Similarly, where the accused inflicted a single blow by the stick in his self defence but blow
accidentally struck on intervening fathers head who succumbed to injury next day. It was held
that the accused had committed no offence at all and was fully protected under section 80. In this
46

Karali Bauri v. Subhas Das Musib, 1983 CrLJ 1474 (Cal) : (1983) 2 Crimes 626 : 87 Cal WN 844

47

10th Parl Rep 16

48

Raja Ra, 1977 CrLJ NOC 85 (ALL) ; see also Khora Ghasi, 1978 CrLJ 1305 ( Orissa) under S. 79 ante.

49

Tunda, 51 CrLJ 402: AIR 1950 ALL 95

50

Chathur Nath v. Emperor AIR 1920 Bom 224: 21 CrLJ 85 : ( 1919) 21 Bom LR 1101

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case two brothers were quarreling as a younger brother had attacked the accused (the elder
brother) while he was sleeping51, not to deprive a man of the protection which is given to him,
because the circumstances under which the act was done were such as to negative the existence
of mens rea.
When only the Actus Reus amounts to death of a victim; accident may be a valid defence. Then
as laid down by HALSBURY, evidence of criminal intention is material and evidence of similar
facts may be adduced to rebut a defence that the event constituting the basis of offence charged
occurred without the necessary criminal intention, for example by accident52. Where death is
caused by way of accident or misfortune a result of involuntary act, in state of sleep, without
criminal intention or motive, it cannot be said that any offence is committed, unless prosecution
proves the guilt of the accused beyond reasonable doubt.53
B. THAT THE CO-ACCUSED ACTUALLY AIDED THE CAUSE OF THE DEATH OF THE DECEASED
WITH COMMON INTENTION OR NOT.

It is humbly submitted that in the present case the co accused did not have any intention to cause
the death of the deceased. Their words do not amount to abatement under S.107 of IPC.
Moreover the act of the accused was that in the right of private defense and not with the intention
of causing death of the deceased. In a case where the accused only had the intention that
deserving students should not suffer on the account of the money, first of the two accused, who
was the practical examiner and had suggested the students who had approached him for advice to
meet the second accused, his suggestion would not amount to abetment of the commission of the
offence of given illegal gratification by students to the second accused.54

51

Girish Saika v. State of Assam, 1993 CrLJ 3808 ( Gau)

52

HALSBURY law Engaland, 4th Edn. Vol. 11, para 377, p. 209

53

Patreswar v. Stae of Assam, 1989 CrLJ 196 (Gau)

54

Purushothaman v. State of Kerala, 1989 CrLJ NOC 184 (Ker)

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In order to proceed against a person for criminal offence under section 107, prosecution must
prove the element of mens rea.55Negligence or carelessness or the facilitation cannot be termed
to be abetment so as to punish the guilty as per the provisions of penal law. 56 In order to
constitute abetment, the abettor must be shown to have intentionally aided to commission of
the crime. The fact that Dushyant and Angad had no intention of causing death of the deceased
has clearly been given in the call recordings provided as evidence in the fact sheet, and thus they
cannot be held liable for Abetment.
Mere proof that the crime charged could not have been committed without involvement or
interposition of the alleged abettor is not enough compliance with the requirement of section
107. It is not enough that an act on the part of the alleged abettor happens to facilitate the
commission of the crime. Intentional aiding and therefore active complicity is the gist of the
offence of abetment under the third paragraph of section 107.57
By mere association of the accused person in the case, who are charged for an offence of
abetment of the principal offender, in the absence of any material to show that there was an
instigation by the petitioner or that there was any intention either in aiding or in commission of
the offence committed by the first accused, it cannot be said that they have committed an offence
of abetment.
1. THAT WHEN THE ACT LACKS ACTIVE STIMULATION IT DOES NOT AMOUNT TO
ABETMENT.
The word instigates in section 107. I.P.C. does not merely mean the placing of temptation to
do a forbidden thing, but the actively stimulating a person to do it.58 To ask a person as a mere
threat to fire a gun, without intending that he should really fire it, is not to instigate him to fire

55

Jamuna Singh v. State of Bihar, AIR 1967 SC 553

56

B. Ammu v. State of T.N., 2009 CrLJ 866 (Mdr)

57

Shri Ram v. State of U.P., AIR 1975 SC 175: 1975 CrLJ 240 (SC) quoted in Jasobant Narayan Mohapatra v.
State of Orissa, 2009 CrLJ 1043 (Ori), Muthammal v. Maruthatlal, 1981 CrLJ 833: 1981 LW (Cr) 80: Mad LJ (Cr)
287.
58

Re Lakshmi Narayana Aiyer, AIR 1918 Mad 738: 19 CrLJ 29.


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the gun. The threat would become only instigation if it is found that in the event of threat having
no effect, the gun should in fact be fired.59
The accused person had some quarrel with the deceased as the latters dog had barked upon one
of them while he was passing through that lane at night. The quarrel took an ugly turn when one
accused (father) instigated other two accused (his sons) to teach deceased a lesson, whereupon
the deceased was stabbed with a knife and the injury proved very fatal. On being prosecuted, the
trial court convicted them under section 302 r/w 107, I.P.C., but on the appeal to high court, it
was found that prosecution story was not reliable as complainants were armed with deadly
weapon whereas accused was unarmed, and injuries received by accused could not be explained
by the prosecution, and even deceaseds wife could not explain as to what weapons were in the
possession of the accused person. Therefore giving the benefit of doubt, the conviction of the
accused was set aside.60
2. THAT MERE PRESENCE OF A PERSON DOES NOT DENOTE INSTIGATION FOR ABETMENT.

Mere presence at the commission of a crime cannot amount to intentional aid unless it was
intended to have that effect. To be present and aware that an offence is about to be committed
does not constitute abetment, unless the person thus present holds some position of rank or
influence such that his countenancing which takes place may, under the circumstances, be held
as a direct encouragement. In order to amount to abetment within the meaning of clause 3 of
section 107 of the penal code, the aid given must be with the intention to aid the commission of
a crime. The mere giving of aid will not make the act of abetment an offence, if the person who
gave the aid did not know that an offence was being committed or contemplated. Dushyant may
have spoken a few words but those words cannot be considered to be aiding Abhishek as the
three of them had no intention of doing so, neither any of them were aware that the act would
result in the death of the police inspector in this case.

59

Shrilal v. State of MP., AIR 1953 MP 155: 1953 CrLJ 29.

60

Chand Basha v. State, 1999 CrLJ (AP) 3441., Lakshmi, (1886) Unrep Cr C 303

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A person may, for example, invite another casually or for a friendly purpose and that may
facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate
the commission of the murder, the person inviting cannot be said to have abetted the murder. It is
not enough that an act on the part of the alleged abettor happens to facilitate the commission of
the crime. Intentional aiding and therefore, active complicity is the gist of the offence of
abetment.61 The intention of either of the accused in this case was not to aid the commission of a
crime. The intention should be to aid an offence or to facilitate the commission of an offence.
But if the person, who lends his support, does not know, or has no reason to believe that the act,
which he is aiding or supporting, would actually take place, it cannot be said that he intentionally
aided or facilitated the doing of that act.62
3. THERE WAS NO COMMON INTENTION AMONGST THE ACCUSED AND CO-ACCUSED.
Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The
section is only a rule of evidence and does not create a substantive offence. The distinction
between common intention and similar intention may be fine but is nonetheless a real one
and if overlooked may lead to miscarriage of justice.63 Even where the accused is liable for
committing the murder of a person by doing an act or acts in furtherance of a common intention,
they would not be liable for the said acts if they had the right of private defence64 as while
exercising the right of private defence, it will not be said that the accused were motivated by a
common intention to commit a crime.65
Common intention has relevance only to the offence and not to the right of private defence. An
offence by reason of constructive liability would cease to be one if the act constituting the
offence was done in exercise of private defence66. Where the accused has acted in exercise of
their right of private defence, it may not be said that they committed a criminal act in furtherance
61

Shri ram v. State of U.P., AIR 1975 SC 175

62

Ramabatar Agarwalla v. State of Orissa, 1983 CrLJ 122(Ori)

63

Suresh vState of U.P. AIR 2001 SC 1344: (2001) 3 SCC 673: 2001 Cr LJ 1462.

64

Gurdatta Mal v State of Uttar Pradesh AIR 1965 SC 257, (1965) Cr LJ 242 (SC).

65

Subramani v State of Tamil Nadu AIR 2002 SC 2980, (2002) 7 SCC 210, 2002 SCC (Cr) 1659.

66

State of Uttar Pradesh v Suresh Chand Shukla (1991) Cr LJ 604.

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of a common intention, because the Indian Penal Code 186067makes it abundantly clear that
nothing is an offence which is done in the exercise of the right of private defence since there is
no intention.68 Where there is no prior meeting of minds to form a prearranged plan, but hastily
formed or rudely conceived, each of several persons who simultaneously was part of the meeting
cannot be said to share a common intention.

69

The partition which divides the bounds between

the same and a similar intention from a common intention is often very slim, nevertheless the
distinction is real and substantial, and if overlooked will result in miscarriage of justice.70 Thus,
two persons may have the same intention to kill a man and they may both individually inflict
separate fatal blows on the deceased victim. However, where there is no prior meeting of minds
to form a pre-arranged plan, mere presence together would not mean that they shared common
intention, they only shared a similar intention.71 The several circumstances pointing to the
innocence of the accused must also be taken into consideration when considering whether the
accused shared the common intention to commit the offence.72
C. THAT THE ACTS OF THE ACCUSED AND CO-ACCUSED AMOUNTED TO OBSTRUCTING THE
PUBLIC SERVANT UNDER 186 OR NOT?
"Public Duty" means a duty in the discharge of which the State, the public or the community at
large has an interest.73 Misconduct in public by a drunken person; whoever, in a state of
intoxication, appears in any public place, and there conducts himself in such a manner as to
cause annoyance to any person, shall be punished with simple imprisonment for a term which
may extend to twenty-four hours, or with fine which may extend to ten rupees, or with both.74
This is also applicable for public servants, the fact that the forensic reports of Amit Chaudhary
67

The Indian Penal Code, 1860 S.96.

68

Subramani v State of Tamil Nadu AIR 2002 SC 2980, see State of Bihar v Nathu Pandey (1970) Cr LJ 5.

69

: Joginder Ahir v State of Bihar (1971) Cr LJ 1285.

70

Dani Singh v State of Bihar 2005 SCC (Cr) 127; Parasa Raja Manikyala Rao v State of Andhra Pradesh (2003)
12 SCC 306
71

State of Uttar Pradesh v Rohan Singh (1996) Cr LJ 2884.

72

Vithal In karan i More v State of Maharashtra AIR 2002 SC 2715.

73

S. 2(b) of The Prevention of Corruption Act, 1988

74

Baroda Kanto Prananik, (1896) 1 CWN 74.

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show that he was intoxicated during the time when he tried to beat the accused at the bus stop
amounts to misconduct in public. The mere fact of a public servant believing that he was acting
in the discharge of his duties will not be sufficient to make resistance or obstruction an offence.75
1. ACTS NOT AMOUNTING TO OBSTRUCTING PUBLIC SERVANTS
Unless the duties in the discharge of which resistance is offered are of a lawful nature, there is no
offence under the provision of the Indian Penal Code 186076 and the question whether there was
a right of private defence or not does not arise.77 The term obstruction in the said provision
connotes some overt act in the nature of violence or show of violence.78 Verbal protest unless
strongly worded and verging on threat with likelihood of it being carried out immediately is not
obstruction79. In the present case the fact that the police inspector, Amit Chaudhary came from
behind and hit Abhishek over his head and caught hold of him while trying to take out his gun
from his holster was enough to cause reasonable apprehension on the mind of the accused
because the accused was given threats that he could be killed twice, once by the complainant and
another by the deceased himself; so the accused acting under Private defence and not knowing
that the throwing of metal rod would cause the death of the inspector cannot be said to have
obstructed Amit Chaudhary. Moreover any public servant cannot be said to have discharging his
lawful duty when he is drunk and beating people in a public place.80 A man who runs away from
arrest or does not submit to arrest may not be said to obstruct another.81 The provision does not
contemplate constructive obstruction to a judicial officer in discharge of judicial functions, even
when they are of a quasi-executive character or when the proceedings before him are in
execution.82 In the absence of evidence that the district magistrate had empowered the
75

Ah Choung, (1931) 9 Ran 601.

76

The Indian Penal Code 1860 S.186

77

Suryanarayana v Thota Simhadri AIR 1934 Mad 664 (2).

78

Phudki v State AIR 1955 All 104 .

79

Al Choung v Emperor AIR 1932 Rang 21.

80

Matu Ram v Emperor AIR 1924 Lah 238 ..

81

Phudki v State AIR 1955 All 104 .

82

Thakur Prasad v Emperor AIR 1936 Pat 74 .

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mukaddam gumasta to use force to prevent contravention of order, it may not be held that the
mukaddam gumasta was acting in the discharge of his public functions or in the execution of his
duties as a public servant and in such circumstances, the offence committed is not under the said
provision of the Indian Penal Code 1860.83

83

Lonkaran Multanchand v Emperor AIR 1947 Nag 60 .

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PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Honble Court be pleased to:
I.

Acquit, Abhishek Lepat for the manslaughter of a police officer on duty charged under
Section 186, 304 read with Section 34 of the Indian Penal Code, 1860.

II.

Acquit, Angad Lepat for the manslaughter of a police officer on duty charged under Section
186,107, 304 read with Section 34 of the Indian Penal Code, 1860.

III.

Acquit, Dushyant for the manslaughter of a police officer on duty charged under Section
107, 304 read with Section 34 of the Indian Penal Code, 1860.

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:

S/d _______

Date:

COUNSEL FOR THE DEFENCE

MEMORANDUM ON BEHALF OF THE DEFENCE