Memorial Respondent Final

TEAM CODE: -
G. H. RAISONI LAW SCHOOL, NAGPUR
KSHAN – 14th NATIONAL TRIAL & APPELLATE MOOT COURT COMPETITION 2019
IN THE HON’BLE HIGH COURT OF BOMBAY, NAGPUR BENCH
Cri. Appeal No.-------/2019
APPEAL UNDER SECTION 374 OF THE CRIMINAL PROCEDURE CODE, 1973
In the matter of:
RAJESH LEMAN BHENDE AND ANR.....................................................................................APPELLANT
Versus
THE STATE OFMAHARASHTRA.................................................................................................RESPONDENT
BEFORE SUBMISSION TO HON’BLE JUSTICE & HIS COMPANION JUSTICES
OF
THE HON’BLE HIGH COURT OF BOMBAY, NAGPUR BENCH
MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT Pg.1
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TABLE OF CONTENTS
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A. Table of Contents Page. 1
B. List of Abbreviation Page. 2
C. Index of Authorities Page. 3
D. Statement of Jurisdiction Page. 5
E. Statement of Facts Page. 6
F. Statement of Charges Page. 8
G. Summary of Pleadings Page. 9
H. Arguments Advanced Page. 10
I. Prayer Page. 18
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LIST OF ABBREVIATIONS
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ABBREVIATION EXPANSION
AIR All India Reporter
All MR All Maharashtra Reporter
Cri. Criminal
Cr.L.J Criminal Law Journal
DW Defence Witness
Ed. Edition
Hon’ble Honorable
i.e. That Is
No. Number
P. Page
Para Paragraph
PW Prosecution Witness
SC Supreme Court of India
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
s/o Son of
u/s Under Section
Vs. Verses
& and
@ Alias
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INDEX OF AUTHORITIES
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CASES REFERED
1. Baban Bakayya Attre Vs. State of Maharashtra, 2002 (1) B Cr C 624
2. Chandru Parappa Kumbhar Vs. State of Maharashtra, 1995 Cri L J 290
3. Chandrakant Rajaram Shinde Vs. State of Maharashtra, 1996 (1) B Cr C 23
4. Prayagsinha Bharatsinha and others Vs. State of Maharashtra, 2001(1) B Cr C 670
5. Sardarsingh etc.etc. Vs. State (Delhi Administration) etc. etc., 1993 B Cr C 439 (SC)
6. Shamrao Raghuji Dhote Vs. state of Maharashtra, 2000 (2) B Cr C 617
7. State of Maharashtra Vs. Lahu Laxman Pabale and others, 2002 (2) B Cr C 929
8. Ved Pal Singh Vs. The State, 2008 (1) crimes 582 (utt.)
STATUTES AND LEGISLATIONS
1. Criminal Procedure Code, 1973
2. Indian Evidence Act, 1872
3. Indian Penal Code, 1860
================================================================
BOOKS & LEXICONS
1. Parikh’s Textbook of Medical Jurisprudence and Toxicology Ed. 5
2. The Law of Evidence by Batuk Lal
3. Indian Penal Code by Batuk Lal
4. Criminal Procedure Code by Ratanlal Dhirajlal
5. Criminal Major Acts by Dr. A Sabzawri
6. Medical Science helping the Process of Criminal law, by Vinod Nijhwan
7. Law of Criminal Appeals, Revisions, References by Mukharjee
8. Criminal Trial and Investigation by P C Banerjee
ONLINE DATABASE
1. www.indiakanoon.org
2. www.judis.nic.in
3. www.lawservices.com
4. www.legalcrystal.com
5. www.livelaw.com
6. www.manupatra.com
7. www.supremecourtcases.com
8. www.thelaws.com
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STATEMENT OF JURISDICTION
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The present appeal has been filed before the Hon’ble High Court of Bombay, Nagpur Bench
with reference to Section 374 of Code of Criminal Procedure, 1973. The Section 374 of the
Code of Criminal Procedure reads as follows,
374. Appeals from convictions.—(1) Any person convicted on a trial held by a

High Court in its extraordinary original criminal jurisdiction may appeal to the
Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other court in which a sentence of
imprisonment for more than seven years has been passed against him or against any
other person convicted at the same trial], may appeal to the High Court.
(3) Same as otherwise provided in sub-section (2), any person,—
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge
or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under
section 360 by any Magistrate, may appeal to the Court of Session.1
1
Criminal Procedure Code, 1973
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SYNOPSIS OF FACTS
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1. Complainant Babanrao Lokhande was running dhaba of accused Rajesh on rent. Rajesh
is having his house adjacent to the dhaba. In the said house, truck driver of Rajesh i.e.
deceased Jitu Borkar was residing on the rent along with his deceased wife Manju
Borkar, daughter Varsha and his son Vinod.
2. On the evening of the 10th January 2019, the incident took place at the dhaba of accused
Rajesh Bhende. At about 7:30 p.m. on the said date Rajesh came to dhaba from the side
of Congress Nagar and made enquiries about the deceased Jitu Borkar.
3. After a while Jitu came there on motorcycle, as he got down from motorcycle, he
demanded his salary for three months at that time accused Rajesh replied he should
immediately vacate the room and slapped him.
4. Accused no. 2 Parag, who is running pan shop near the said dhaba came there, he
caught hold Jitu’s hands and accused no.1 by means of knife stabbed over the stomach
of Jitu, due to it Jitu shouted hence his wife Manju came there to rescue him at that time
Fatima who is live-in partner of accused Rajesh also came running behind her and she
grabbed hairs of Manju and accused no. 1 stabbed Manju.
5. At that time informant went there and tried to save them that time accused Rajesh
assaulted on his stomach by means of knife.
6. Running away from the spot of incidence informant Babanrao called the Police and
then the police arrived at the spot.
7. After investigation accused Rajesh and Accused Parag was arrested and then the charge
sheet was filed.
8. After commencement of the trial both the accused were convicted on the charges u/s.
302 of IPC and 34 of IPC.
9. Aggrieved by the judgement passed by the learned sessions court the appellant has filed
the appeal in the High court of Bombay, bench at Nagpur.
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STATEMENT OF CHARGES
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The charges levied on the accused are u/s. 302 of IPC read with Sec. 34 of IPC. Sec. 302 of
IPC states about the charges of murder and Sec. 34 about common intention of the accused.
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SUMMARY OF PLEADINGS
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WHETHER THE PROSECUTION PROVED THAT BOTH ACCUSED IN
FUTHERENCE OF THEIR COMMON INTENTION COMMITTED MURDER?
To prove the death of the deceased, certain issue must be taken into the consideration.
Those issues are related to the conduct of the accused. This case is not the case of self-defense
and grave and sudden provocation. The presence of the witness on the spot of the incident
draws attention. The incident happened in front of a witness, additionally the things collected
from the spot of the incident supports the statement of the Eye-witness. The description of the
incident given by witness corroborates with the information reported in the Spot Panchanama.
We are considering the evidence on record which is brought by prosecution to prove
the guilty of the accused. It shows that there is a meeting of mind of Rajesh and Parag for
commission of offence.
WHETHER ANY INTEFERNCE IS NECESSARY IN THE JUDGEMENT
GIVEN BY SESSION JUDGE NAGPUR?
The evidence of prosecution is properly considered by lower court in every manner i.e.
evidence of eye-witnesses, evidence of recovery of weapon, medical evidence, scientific
evidence and even the evidence brought by accused person in support of their defence. It means
the lower court properly touch to every evidence.
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ARGUMENT ADVANCED
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WHETHER THE PROSECUTION PROVES THAT BOTH ACCUSED IN
FUTHERENCE OF THEIR COMMON INTENTION COMMITTED MURDER?
1.1 Facts of the case
The prosecution story in short is that deceased Jitu is working for accused no. 1
Rajesh as a driver. Both were residing in the same house which is adjacent to Baban dhaba.
deceased Jitu residing with his wife Manju, daughter Varsha, son Vinod in the said house on
the rent.
Accused no.2 Parag is son-in-law of accused no.1 Rajesh and Accused no.3 Fatema
was living in relationship with accused no.1 Rajesh.
On the day of incident that is 10/1/2019, at about 7:30 p.m. accused no.1 Rajesh came at
dhaba of informant Babanrao Lokhande he enquired him about Jitu (deceased). After a while
Jitu came there on motorcycle, as he got down from the motorcycle ,he demanded his salary of
three months at that time , accused Rajesh replied to him and immediately slapped him and
accused no.2 who is running Pan shop on the said dhaba came there , he caught hold Jitu’s
hands and accused no.1 by means of knife stabbed over stomach of Jitu, due to it Jitu shouted
and hence his wife Manju came there to rescue him at that time Fatema also came running
behind her and she grabbed hairs of Manju and accused no.1 stabbed Manju. That time
informant went there and tried to save them that time accused Rajesh assaulted on his stomach
by means of knife.
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Hence, the charge u/s 302 r/w sec.34 of Indian Penal Code was framed
against accused no.1 and 2 and after completion of trial Hon’ble lower court convicted
the accused persons. Therefore, accused preferred the present appeal.
1.2 Eye witness
Now we are considering the evidence on record which is brought by prosecution to
prove the guilt of accused. Prosecution in our total examined three witnesses all the witnesses
are eye witnesses, out of these three witnesses, two witnesses are independent witnesses they
are not in any manner concern with the deceased. They are not relative of the deceased only
PW3 who is daughter of deceased, but here it is pertinent to note that she is not major hence,
she is child witness. It means all three witnesses in whose presence incident took place are
reliable.
The court would be justified in convicting an accused on the basis of the evidence of a
child witness. If the court finds that the child witness has the capacity of understanding and
gives truthful answers. It is to be always remembered that the child witness is susceptible to
being tutored. Because of tutoring, the child witness is so much impressed that he beings to
believe that what is tutored to him is the truth. The Court has, therefore, to be extremely
cautious while accepting the evidence of the child witness. Baban Bakayya Attre Vs. State of
Maharashtra 2
On perusal of evidence of all three witnesses it appears that they are corroborating to
each other. The PW1 Babanrao Lokhande who is dhaba owner. He is well acquainted with
deceased as well as accused as he is dhaba owner and besides his dhaba accused no.1 is residing
and accused no.2 running Pan shop and accused no.3 is in relationship with accused no.1. the
2
2002 (1) B CrC 624
================================================================
deceased Jitu and his wife Manju were residing on rent in house of accused no.1, hence PW1
is very well acquainted with all.
On the day of incident at the relevant time accused came near the dhaba and enquired
about Jitu and after some time Jitu came there. Thereafter, entire incident is occurred in
presence of this witness. He has seen that exchange of words took place between Rajesh and
Jitu, Rajesh slapped Jitu, so due to slap Jitu fall down and at that time accused no.2 came there
and he caught hands of Jitu and accused Rajesh made assault by means of knife over the
stomach of Jitu.
Due to assault Jitu shouted hence his wife came there, she wants to rescue her husband
but Fatema caught hold Manju and accused Rajesh assaulted her on her stomach by means of
knife. This incidence is also noticed by PW 2 Pandurang Singh and PW 3 Varsha. Babanrao
informed to police regarding incident on phone at that time accused were following him but he
saved Varsha and informed to police.
The above said evidence is nowhere shaken and also PW1 and PW3 are making
statement which is corroborative in nature. PW2 is the person who came on the spot to repair
tire of his motorcycle hence he is chance witness. He is not at all concerned with the either
parties there is nothing on record to disbelieve him.
The PW3 Varsha a 14 yrs. minor girl who is d/o deceased Jitu and Manju. Her
deposition is full of confidence and trustworthy. Considering her age, her evidence required to
be appreciated in way of sec.118 of Indian Evidence Act, her evidence cannot be discarded
only on the ground of her being teenage and thus, the reliance must be put on the principal laid
down by Hon’ble Supreme court in case of State of Maharashtra Vs. Bharat Fakira Dhiwar.3
3
2001 (1) BCrC 851 SC
================================================================
1.3 Medical and Technical Evidence
Apart from the above evidence of eye witnesses there is sufficient material on record
which leads us towards the guilt of accused. The post mortem reports of Jitu and Manju
indicates that they sustained injuries as mentioned by the witnesses. The PM note of Jitu shows
that he sustained punctured incised wound in between 9th and 10th ribs. There is left side
anterior auxiliary line injury, vertically oriented of skin surface and the injury is 13cm deep
which is in direction from left to right towards downside and said injury is at abdominal wall.
The cause of death of Jitu is mentioned by the doctor is that death due to hemorrhage due to
injury to vital organ.
In case of, Prayag Sinha, Bharat Sinha and Ors. Vs. State of Maharashtra4 it was held that,
A perusal of the post mortem report, shows that six of the incised injuries suffered by
the deceased were on vital parts of his body. This circumstance coupled with internal damage
suffered by the deceased shows that the said appellants shared the common intention to cause
them and commit murder of the deceased. The act of appellant would be squarely covered by
the clause thirdly of sec.300 of IPC, the breach of which is punishable u/s 302 of IPC.
Now, considering post mortem reports of Manju it appears that she also sustained
punctured incised wound located 2cm. below xipisternum at epigastric region 2cm. vertically
oriented and 10 to 12 cm deep. Her cause of death is given same as cause of death of Jitu the
evidence of doctor who has conducted autopsy his evidence bears great value as he is an expert
in sec.45 of Indian Evidence Act. The injuries mentioned by doctors to both the deceased are
specifically mentioned that these injuries are ante mortem injuries. Both the deceased sustained
4
2001 (1) B Cr C 670
================================================================
deep injuries the weapon used in crime is sharped pointed knife which is having blade of 19
cm and injuries are deep into 13cm, hence medical evidence supporting to prosecution.
Another technical evidence that is the reports of chemical analyzer; the reports of
chemical analyzer shows that there are blood stains on the clothes of Rajesh. The incident is
noticed by eye witnesses, his presence noticed on the spot. This evidence is corroborated by
chemical analyzer report. Moreover, not a single probable explanation is given by accused
Rajesh as to how blood stains came on his clothes. Also, the weapon i.e. knife also bears blood
stains. Here it is pertinent to note that the said knife seized at the instance of accused from the
staircase of his house which was concealed by him. The accused as to give explanation as to
how blood stains came on the knife, in view of sec.106 of Indian Evidence Act, the accused
Rajesh having exclusive knowledge about the fact that how blood stains appears on his cloths
and knife, though the results regarding blood group are inconclusive but how the blood stains
appears on it, on said cloths and knife bears great evidentiary value. In case of Chandrakant
Rajaram Shinde Vs. State of Maharashtra5 The cause of death was haemorrhage due to
excessive bleeding from several multiple injuries associated with asphyxia due to foreign body
in mouth and oesophagus and due to shock. The circumstances proved on record is consistent
with the by hypothesis of the guilt of the accused. The circumstantial evidence so brought on
record fully satisfies the test laid down by the Apex Court in Sharad Birdhichand’s case for
sustaining a conviction on the basis thereof.
This medical and technical evidence also supports to the case of prosecution.
5
1996(1)B Cr C 23
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1.4 Conclusion
The above entire evidence shows that both accused are guilty for the offence punishable
u/s 302 of Indian Penal Code r/w sec.34 of Indian Penal Code. The accused no.1 came on the
spot by setting his mind about commission of crime, a knife was kept by him in his belt. The
knife is pointed and sharp edged having 19cm of length. The injuries sustained by both
deceased were 12 to 13cm deep. Both deceased were stabbed by accused no. 1 on their vital
part i.e. stomach. The deceased Jitu sustained punctured incised wound, his 9th and 10th ribs
were fractured, so deceased Manju also sustained injury punctured incised wound located just
2cm below of xipisternum region and 10 to 12cm deep cut. These injuries indicate that the
attack is not result of sudden and grave provocation, the stabbed injury of Jitu turned into
fracture of ribs which shows the speed of assault, here it is pertinent to note that two murders
committed by the accused and even it is one by one, apart from it he tried to assault complainant
Babanrao. This chain of attack leads us that the accused gave assault with the knowledge and
its result. Therefore, offence falls u/s 302 of Indian Penal Code. Sardar Singh etc. Vs. State
(Delhi administration),etc.6
Now, turning towards common intention of accused persons, so far as considering the
necessary important ingredients of sec.34 of IPC that,
a) Criminal act should be done by more than one person
b) The act is made in furtherance of common intention of all engaged act arranged
plan
c) That in furtherance of common object the criminal act was done.
6
1993 B Cr C 439 (SC)
================================================================
Now, considering our case in hand if we go through the evidence on the point of incident, it
appears that accused Rajesh during conversation with deceased Jitu without any reason gave
slap to him. Due to the said slap Jitu fall down. As soon as Jitu fall down immediately accused
Parag came there and when Jitu was trying to get up he caught his hands hold and then Rajesh
assaulted the knife to Jitu. It shows that there is meeting of minds between Rajesh and Parag
for commission of offence. If the accused no. 2 Parag after coming on the spot did not hold the
hands of Jitu then definitely Jitu himself got up and by running from spot or any other means
he might have saved himself. Moreover, if Parag is not in common intention with accused
Rajesh then he would have tried to separate Rajesh and Jitu, then it could be easily said that
there is no meeting of minds between Rajesh and Parag. But in spite of making separation
Parag caught hold the hands of deceased Jitu with intention to assist the accused Rajesh. Even
though he caught hold hands of Jitu he is having every opportunity of to save deceased
Jitu from the assault because he was very closed person behind deceased Jitu and if there is no
intention he may try to save the deceased. Therefore, considering conduct of Parag it is very
clear that both the accused acted in furtherance of their common intention. Hence, Parag is also
liable for the punishment u/s 302 of IPC in view of sec.34 of IPC.
In case of Shamrao Raghuji Dhote Vs. State of Maharashtra7 Hon’ble Court stated that,
It is not a case of single blow or a blow having been given either on the spur
of moment in a sudden quarrel or as a result of provocation, but it is pre-mediated act
of the accused who returned back after about half an hour of the initial incident with an
axe hidden in his clothes and assaulted with great force with axe on the head of victim
resulting in injuries leading to death. The offence in question clearly falls u/s 302 of IPC
7
2000 (2)B Cr C 617
================================================================
since there is intention on the part of the accused/appellant to kill the deceased. In the
view of this, sentence of life imprisonment has to be maintained.
Therefore, it is humble submission that the learned trial court properly
considered the evidence on record regarding commission of offence, punishable u/s 302 of IPC.
There is no merit in appeal as the prosecution proved their case beyond all reasonable doubts,
the appeal deserves to be dismissed.
================================================================
WHETHER ANY INTEFERNCE IS NECESSARY IN THE JUDGEMENT GIVEN BY
SESSION JUDGE NAGPUR?
so far as considering evidence on record which leads that the accused persons are guilty
for offence punishable u/s 302 r/w sec. 34 of IPC. The evidence of prosecution is properly
considered by lower court in every manner i.e. evidence of eye witness, evidence of recovery
of weapon, medical evidence, scientific evidence and even the evidence brought by the accused
person in support of their defense. It means the lower court properly touch to every evidence
which is placed before it. Therefore, considering appreciation of evidence by lower court
regarding evidence against both the accused is not necessary to be require any interference,
this was observed by the court in case of Ved Pal Singh Vs. The State8
The evidence of complainant is straight forward and that of natural and truthful witness
with no reason whatsoever to falsely implicate the accused and, therefore, his to the extent it
is corroborated by the FIR is sufficient to implicate the accused persons who have been named
in the FIR as well as identified by him in the court. State of Maharashtra Vs. Lahu Laxman
Pabale and others9
8
2008 (1) Crimes 582 (Utt.)
9
2002 (2)B Cr C 929
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PRAYER
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Therefore, in the light of the facts of the case, it is humbly submitted that the
prosecution has proved its case against the appellant beyond reasonable doubt & absolutely
no any error is committed by the learned Trial Court in convicting the accused appellants.
The appeal is devoid of any merits. Hence it is prayed that,
1. The Appeal may kindly be dismissed.
2. The Judgement and order of conviction and sentence passed by the Hon’ble Trial
Court may kindly be confirmed.
3. The appellant may kindly be convicted.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity, and Good
Conscience. For this act of kindness, the Respondent shall as in duty bound, forever humbly
pray,
Counsel for the Respondent
_________________________
================================================================

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TEAM CODE: -

G. H. RAISONI LAW SCHOOL, NAGPUR

IN THE HON’BLE HIGH COURT OF BOMBAY, NAGPUR BENCH

Cri. Appeal No.-------/2019

APPEAL UNDER SECTION 374 OF THE CRIMINAL PROCEDURE CODE, 1973

In the matter of:

RAJESH LEMAN BHENDE AND ANR.....................................................................................APPELLANT

THE STATE OFMAHARASHTRA.................................................................................................RESPONDENT

BEFORE SUBMISSION TO HON’BLE JUSTICE & HIS COMPANION JUSTICES

THE HON’BLE HIGH COURT OF BOMBAY, NAGPUR BENCH

MEMORIAL ON BEHALF OF RESPONDENT

A. Table of Contents Page. 1

B. List of Abbreviation Page. 2

C. Index of Authorities Page. 3

D. Statement of Jurisdiction Page. 5

E. Statement of Facts Page. 6

F. Statement of Charges Page. 8

G. Summary of Pleadings Page. 9

H. Arguments Advanced Page. 10

AIR All India Reporter

All MR All Maharashtra Reporter

Cr.L.J Criminal Law Journal

SC Supreme Court of India

SCC Supreme Court Cases

SCR Supreme Court Reporter

u/s Under Section

1. Baban Bakayya Attre Vs. State of Maharashtra, 2002 (1) B Cr C 624

2. Chandru Parappa Kumbhar Vs. State of Maharashtra, 1995 Cri L J 290

3. Chandrakant Rajaram Shinde Vs. State of Maharashtra, 1996 (1) B Cr C 23

4. Prayagsinha Bharatsinha and others Vs. State of Maharashtra, 2001(1) B Cr C 670

6. Shamrao Raghuji Dhote Vs. state of Maharashtra, 2000 (2) B Cr C 617

STATUTES AND LEGISLATIONS

1. Criminal Procedure Code, 1973

2. Indian Evidence Act, 1872

3. Indian Penal Code, 1860

BOOKS & LEXICONS

1. Parikh’s Textbook of Medical Jurisprudence and Toxicology Ed. 5

2. The Law of Evidence by Batuk Lal

3. Indian Penal Code by Batuk Lal

4. Criminal Procedure Code by Ratanlal Dhirajlal

5. Criminal Major Acts by Dr. A Sabzawri

6. Medical Science helping the Process of Criminal law, by Vinod Nijhwan

7. Law of Criminal Appeals, Revisions, References by Mukharjee

8. Criminal Trial and Investigation by P C Banerjee

374. Appeals from convictions.—(1) Any person convicted on a trial held by a

WHETHER THE PROSECUTION PROVED THAT BOTH ACCUSED IN

FUTHERENCE OF THEIR COMMON INTENTION COMMITTED MURDER?

We are considering the evidence on record which is brought by prosecution to prove

WHETHER ANY INTEFERNCE IS NECESSARY IN THE JUDGEMENT

GIVEN BY SESSION JUDGE NAGPUR?

evidence of eye-witnesses, evidence of recovery of weapon, medical evidence, scientific

the lower court properly touch to every evidence.

WHETHER THE PROSECUTION PROVES THAT BOTH ACCUSED IN

FUTHERENCE OF THEIR COMMON INTENTION COMMITTED MURDER?

1.1 Facts of the case

was living in relationship with accused no.1 Rajesh.

the accused persons. Therefore, accused preferred the present appeal.

1.2 Eye witness

Now we are considering the evidence on record which is brought by prosecution to

is very well acquainted with all.

saved Varsha and informed to police.

parties there is nothing on record to disbelieve him.

1.3 Medical and Technical Evidence

injury to vital organ.