ISSUE -3

THE ACCUSED ARE NOT GUILTY UNDER SECTION 322, 323, 326 AND 506 OF

INDIAN PENAL CODE 1860

It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul (hereinafter will

be referred as A1, A2 AND A3 respectively) are guilty under section 323 1,3262 and 5063 of IPC

and Laxmi Devi (hereinafter will be referred as A4)

The prosecution would divide the contentions into 4 sub issues to deal with this issue [3.1]

Grievous hurt was not caused; [3.2] Dangerous weapons or means were not used; [3.3] There

was no threat to assault [3.4] Hurt to the victim was not caused.

[3.1] Grievous hurt was not caused by the accused

In order to attract Section 322, the court has to see that the accused intended to cause hurt or

that he knew that grievous hurt was likely to be caused and that such grievous hurt is actually

caused.4 In the instant case the victim medical examination report tells that the patient was

having only nail wound on back and neck and there is no proof that A1,A2 &A3 has any role in

doing it. Therefore, the respondent humbly submits that the accused is hereby innocent.

[3.2] Dangerous weapons or means were not used by the accused

That the essential ingredients to attract Section 326 are: That In the matter of imposition of

proper sentence for the offence under Section 326 I.P.C. the nature of injury, the weapon used

and the part selected for causing injury, are important factors to be taken into consideration. 5
1
Section 322 of Indian Penal Code, 1860
2
Section 326of Indian Penal Code, 1860
3
Section 506 of Indian Penal Code, 1860
4
Lokanath Behara v. State of H.P; 1975 CrLJ 1346(HP):ILR (1975)HP 54.
5
Emperor v. Bhojo A.I.R. (21) 1934 Sind. 172 : (36 Cr. L.J. 223)
That the medical expert specifically stated on the basis of external and internal examination that

there was only nail wound on back and neck. Nail wound on back and neck are not sufficient to

cause death in the normal course. Moreover, victim’s clothes were blood stained but there is no

evidence on record that the blood was of the deceased and also there is no evidence that injury

was caused by the accused.

That to prove the offence under Section 326 of IPC, the prosecution has to establish.

(a) That, the accused caused grievous hurt as contemplated in Section 320 of IPC. (b)that the

accused caused it voluntarily as envisaged in Section 322 of IPC. (c) That causing of such

grievous hurt was made by means of instrument for shooting etc. or by means of any

instruments which can be used as a weapon is likely to cause death or by means of fire

etc. or by means of any poison or any substance which is deleterious to the human body

to inhale etc. or by means any animal.6

Upon examination of the medical report it can be concluded that the statement made by A3 is not

true because on internal examination there was no wounds on vaginal part and on external

examination there was only Nail wound on back and neck. 7 Bearing in mind the underlying

principles of Section 326 the question is whether the accused in this case intended to cause or

had the knowledge of the likelihood of causing grievous hurt. The respondent contends that at

the time of the occurrence the accused namely A1, A2 & 3 was admittedly without any weapon.

The ingredients of section 326 of IPC are lacking. So, the petitioner humbly submits to set aside

so far as it relates to Section 326 of IPC.

[3.3] There was no threat to assault

6
Rakesh Gujar and others v. State of Madhya Pradesh
7
 For being an offence within the meaning of Section 503, I.P.C, and punishable under Section

506, I.P.C., the threat should be real one and not just a mere word. When a person uttering it

does not exactly mean what he says and when the person at whom threat is launched does not

feel threatened actually the offence of criminal intimidation punishable under Section 506, I.P.C.

goes out of the way.8 A1 had warned PW2 that if he continued strict behaviour with him then he

must be ready to face the consequences of it but mere words are not punishable because there no

harassment against the victim nor any such things was heard by PW2 9 Also prosecution has not

established the fact nor there is any proof that overt act was shown by A1, A2 & A3.

[3.4] Hurt to the victim was not caused by the accused

There is no corroborative evidence that injuries found on person of informant was caused none

other than by the appellant. The offence under Section 323 of I.P.C could not be proved beyond

doubt. Conviction recorded against appellant is improper and liable to be set aside. 10 That in the

instant case victim was unconscious and after conducting several test and medical examination

the doctors had already informed that victim will not be able to survive more than an hour on

account of internal bleeding so it can be reasonably assumed that she died because she was

already suffering and there is no corroborative evidence on record that there was further injuries

caused A4. Therefore, the story of prosecution is purely made to falsely the accuse who are very

innocent person.

ISSUE -4

8
Noble Mohandas v. State of T.N., 1989 CrLJ 669 (Mad) LW (Cr) 178 : (1988) 2 All Cr LR 248.
9
10
Gunadhar Majhi v. State of Jharkhand, 2011 CrLJ 2536 (Jhar).
THE ACCUSED ARE GUILTY UNDER SECTION 299 AND 302 OF INDIAN PENAL

CODE 1860

The prosecution would divide the contentions into 4 sub issues to deal with this issue [4.1]

Motive [4.2] Complete chain of Circumstantial evidence [4.3] [4.3] Dying Declaration [4.4]

Medical evidence.

[4.1] Direct or Circumstantial evidence is not there

In Padala Veera Reddy v. State of A.P11 the Supreme Court held that when a case rests upon

circumstantial evidence, such evidence must satisfy in order to sustain conviction, that the

circumstantial evidence, must be complete and incapable of explanation of any other hypothesis

other than that of the guilt of the accused and such evidence, should not be consistent with the

guilt of the accused but should be inconsistent with his innocence and the fact that there are other

hypothesis possible and that such hypothesis are more strong and supported by evidences than

that of the prosecution, quashes the hypothesis of the prosecution that the accused persons have

murdered the deceased.

That the circumstances of the last seen together, does not, by itself and necessarily leads to the

inference that it was the accused who committed the crime. There must be something more,

establishing the connectivity between the accused and the crime. Mere non-explanation on the

part of the accused by itself cannot lead to the proof of guilt against the accused. 12 A2 made the

statement under that he was present there at the time of incidence but there is no connectivity

that he had done the crime and also that night he had slept after drinking and he was too drunk to

11
Padala Veera Reddy v. State of A.P; (1990) I SCJ 44: 1989 Supp (2) SCC 706 : AIR 1990 SC 79
12
Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715: 2014 (3) SCALE 598: Ashok v. State of Maharashtra,
2015 CrLJ 2036: 2015 (3) SCALE 530: (2015) 4 SCC 393
even walk so the charges against A1 is fraudulent. 13 That the plea of alibi is taken by the defence

is required to be proved only after the prosecution has proved its case against the accused 14. In

the instant case there is no strong evidence that establishes the guilt of A2 so his plea of guilt

stand good.

[4.2] Understanding dying declaration

That, for a dying declaration wants to be admissible under Section 32(1) of Indian Evidence Act,

187215, there should be a medical certificate of a doctor to certify that the person making the

declaration is fit to do so, but here in this case there was no certificate issued by any doctor to

say whether the deceased was fit to make a dying declaration or not. Thus, for this lack of

certificate, which is immensely essential for declaration to be admissible, the statement given to

the police officials at 12:35 PM in the presence of a judicial magistrate 1st Class that even A4

kicked the deceased stomach several times16 the declaration is not admissible.

That In a case, the identity of the assailant stated in the dying declaration could not be

established. The dying declaration was not accepted and the prosecution failed. 17 That deceased

in her dying declaration only told that “I was raped three times at around 3:00 am, while I was

sleeping. The rapists covered my face using thick piece of cloth.” 18 So it is humbly submitted

before this honorable bench that merely by her statement the identity of the assailment is difficult

to be determined. So, upon such incoherent statement accused should not be convicted.

[4.3] Statement of co-accused

13
14
Darshan Singh v. State of Punjab, (2016) 3 SCC 37,para 17.
15
Section 32(1) of Indian Evidence Act, 1872
16

17
Sudhir Kumar v. State of U.P., (1989) 3 Crimes 583 :1990 CrLJ 119 (All)
18
 A confessional soliloquy is a direct piece of evidence. It may be an expression of conflict of the

emotion; a conscious effort to stifle the pricked conscience an argument to find an excuse or

justification for his act; or penitent or remorseful act of exaggeration of his part in the crime.

Before such evidence can be accepted, it must be established by a cogent evidence what were the

exact words used by the accused. Even if so, much was established, prudence and justice demand
19
that such evidence cannot be made the sole ground of conviction. That even if A3 has

established its guilt but still prudence and justice demand that such evidence cannot be made the

sole ground of conviction as he specifically told that he, along with A1 & A2 had hit victim

badly into her body parts and other parts of body and doing all these act A1 was very brutal but

looking upon the medical evidence there is conflict because there is no such grievous injuries

sign on the body and also no semen was found and there was no wound on vaginal part.20

[4.4] Benefit of doubt

21
In Kedar Nath v. State of Madhya Pradesh it was held that when there was no evidence as to

how death came about, evidence relating to charge of murder was held to be insufficient and

unacceptable. In a recent case where the cause of death is recorded as ‘asphyxia as a result of

strangulation’ but there was no external mark or symptoms of strangulation on the body of the

deceased, the Supreme Court gave the benefit of doubt to the accused. 22That in the instant case

also the cause of death of the deceased is Internal Bleeding, Hypovolemia, Dyspnea 23 but the

reason has not been given that what actually caused the problem nor there is external mark of

19
Sahoo v. State of U.P; AIR 1966 SC 40 : 1996 CrLJ 68.
20
21
Kedar Nath v. State of Madhya Pradesh ; AIR 1991 SC 1224, 1991 CriLJ 989, 1993 Supp (1) SCC 7
22
Tomaso Bruno v. State of U.P; 2015 CrLJ 1690 : 2015 (1) SCALE 498
23
injury which will cast the serious doubt that the accused has raped the deceased or tried to

murder her so the benefit of doubt should be given to the accused.