Section 322

That 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. 1The respondent humbly submits that in the instant case the victim medical examination
report tells that the patient was having only nail wound on back and neck.
That the essential ingredients to attract Section 326 are:
(a)Voluntarily causing hurt; (b) Hurt caused must be grievous hurt ;( c) The grievous hurt
must have been caused by dangerous weapons or means. 2

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. 3
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 Ms. Dhan Laxmi 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 punishment for an offence under Section 326 I.P.C; should be severe when injuries inflicted
are caused out of vindictiveness.4

That According to defence statement recorded U/S 315 CrPC 1973 Vishnu did planned about
rapping the deceased due to vindictive and personalized problem of his humiliation because the
deceased was infuriated at Vishnu recklessness and scolded him because he came in drunken
condition and also because he misbehaved with the apartment‟s security and but upon looking of
his further statement he said he never engaged in any such act and also there is no medical
evidence of serious injury and death was caused by internal bleeding, Hypovolemia and
Dyspnea5
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

1
2
Prabhu v. State of M.P; AIR 2009 SC 745 : (2008) 17 SCC 381
3
Emperor v. Bhojo
4
State v. Shivraj. (2002) CrLJ 2493 (Kant) :2002 AIR Kant HCR 1432.
5
6
Rakesh Gujar and others v. State of Madhya Pradesh
That On behalf of the respondent, argument advanced that as per medical examination report no
injury has been caused to the deceased externally by any sharp object.7 It is humbly submitted
although it is confessed by Rahul that “Vishnu first raped her followed by me and Jayesh.
That During rape, we also hit her badly into her private body parts and other parts of body.
During this entire act, Vishnu was very brutal. After doing the act we all flew away from
there.”8Upon examination of the medical report it can be concluded that the statement made by
Rahul 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. 9 Bearing in mind the
underlying principles of Section 326 the question is whether the appellant in this case intended to
cause or had the knowledge of the likelihood of causing grievous hurt.
That the respondent contends that at the time of the occurrence the accused namely Mr. Vishnu,
Mr. Rahual and Mr.Jayesh was admittedly without any weapon. The ingredients of section 326
of IPC are lacking. Therefore, prima facie it is found that the offence under Section 326 of IPC is
not made out. So the petitioner humbly submits to set aside so far as it relates to Section 326 of
IPC.
That there 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 Dhanlaxmi was unconscious and after conducting several test and
medical examination the doctors had already informed that Dhanlaxmi 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 by in laws.
That, the story of prosecution is purely made to falsely accuse the accused persons who are very
innocent.
That, for a dying declaration wants to be admissible under Section 32(1) of Indian Evidence Act,
1872, 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 Laxmi
kicked the deceased stomach several times the declaration is not admissible.

7
8
9
10
Gunadhar Majhi v. State of Jharkhand, 2011 CrLJ 2536 (Jhar).
That the conduct exhibited by the co- accused on the date of occurrence, would cast serious
suspicion on him but that by itself, would not be sufficient to find him guilty of the offence u/s.
302/34 and 120B I.P.C.. He was entitled to acquittal. 11
That Vishnu along with his other two friends Jayesh and Rahul came to the house in the midst of
the night and that too in a druken condition, who even misbehaved with the apartment‟s security
guard and upon the scolding of Dhanlaxmi they did panned to take revenge from Dhanlaxmi but
there conduct will only cast a serious dobut and for establishing section 302 the facts must be
established without reasonable doubt.
The evidence against one of the accused was that witness saw him going towards the house of
the deceased along with other accused. The Supreme Court held that this alone was not sufficient
to establish his guilt. The conviction under section 302 and 120-B of the Code was thus side
aside.12
That it is still a disputed issue whether Jayesh was present on the day of incident as statement
recorded under U/S 315 CrPC 1973 he said that he went to a bar on Rajouri Garden road from
where he left for his home.
When there was no evidence as to how death came about, evidence relating to charge of murder
was held to be insufficient and unacceptable; Kedar Nath v. State of Madhya Pradesh 13
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. 14
That in the instant case also the cause of death of the deceased is Internal Bleeding,
Hypovolemia, Dyspnea15 but the is reason has not been given that what actually caused the
problem nor but there i external mark of injury which will cast the serious doubt that the accused
have raped the deceased or tried to murder her so the benefit of doubt should be given to the
accused.
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. 16

11
Madammal v. State of Tamil Nadu, 2005 CrLJ 4748 (Mad.)
12
Kuldeep Singh v. State of Rajasthan 2001 CrLJ 479 ( SC).
13
(1991) Cr LJ 989 (SC)
14
Tomaso Bruno v. State of U.P; 2015 CrLJ 1690 : 2015 (1) SCALE 498
15
16
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
That the Vishnu confessed 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 even walk so the charges against Vishnu is fraudulent.17
The accused on the unjustified belief that his wife was unchaste inflicted as many as 23 incised
wounds by sharp cutting weapon. After being stabbed repeatedly by her husband, the deceased
asked for water and the accused promptly gave it to her. Then the accused put his two small
grand- children to sleep and then left for Police Station and stated there that he had murdered his
wife. It was held his subsequent conduct in bringing a glass of water to the victim militates
against his intention of causing death. 18
That in the instant case also when Vishnu had woke up in the morning he went to Dhanlaxmi for
apologizing for his misbehaviour and when found her lying unconscious on the floor he took her
to the hospital. 19 Vishnu‟s subsequent conduct by taking her to the hospital clearly establishes
the fact that his intention was never to cause death.
That Jayesh was not even present on the day of the incident 20

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 accused21. In the instant case there is no strong evidence that
establishes the guilt of Jayesh,
That 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. The
tone may be soft and low; the words may be confused; they may be capable of conflicting
interpretations depending on the witnesses, whether they are biased or honest, intelligent or
ignorant, imaginative or prosaic, as the case may be. Generally, they are mutterings of a
confused mind. 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 that such evidence cannot be made the sole ground of conviction. 22
That even if Rahul 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 I, Visnu and
Jayesh had hit Dhanlaxmi badly into her body parts and other parts of body and doing all these
act Vishnu 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.23

Chain of evidence must be complete with fully established circumstances not to leave any
reasonable ground for a conclusion consistent with the innocence of accused. It should be of

17
18
Alex Marin Fernandes v. State of Maharastra(1983) 3 Crimes 711 (Bom.)
19
20
21
22
Sahoo v. State of U.P; AIR 1966 SC 40 : 1996 CrLJ 68.
23
conclusive nature;24 deals with the commission of an offence "by means of several acts". The
section renders anyone who intentionally cooperates in the commission of that offence "by doing
any one of those acts" to be liable for that offence.
That the Supreme Court held that when a case rests upon circumstantial evidence, such evidence
must satisfy the following tests: The circumstance from which an inference of the guilt is sought
to be drawn (1) must be cogently and firmly, established; (2) those circumstances should be of a
definite tendency, unerringly pointing towards the guilt of the accused; (3) the circumstances
taken cumulatively, should be a chain, so complete that there is no escape from the conclusion
that within all human probability, the crime was committed by the accused and none else; (4) and
the circumstantial evidence, in order to sustain conviction, 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
innocence25 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.
The Supreme Court, reiterating the principle in the case of Kishore Chand v. State of H.P held
that whether the facts leads to the inference of the guilt of the accused or not is another aspect
and in dealing with the aspect of the problem, the doctrine of benefit would apply and an
inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the
accused and are consistent only with the guilt. In order words there must be chain of evidence so
far consistent and complete as not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such, as to show that within all probability, the
act must have done by the accused and the accused alone.26
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. 27
That Dhanlaxmi 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.” So merely by
her statement the identity of the assailment is difficult to be deduced so the dying declaration
should not be accepted.
When the court is called upon to arrive at a finding as to the real intention of the accused in
committing a particular offence, the Court is expected to consider every available circumstance
and should accept only that conclusion which could be arrived at beyond reasonable doubt.28
That the accused had any malafide intention is yet not established and there is no conclusive
proof which will cast beyond reasonable doubt and also statement recorded under by security
guard says t

24
Arvind v. State (Delhi Admn.), 1999 (4) SCC 4861: 1999 (3) JT 554.
25
Padala Veera Reddy v. State of A.P; (1990) I SCJ 44 : 1989 Supp (2) SCC 706 : AIR 1990 SC 79
26
Kishore Chand v. State of H.P: 1990 CrLJ 2290 (SC) : (1990) 3 Crimes 341
27
Sudhir Kumar v. State of U.P., (1989) 3 Crimes 583 :1990 CrLJ 119 (All)
28
State of Gujarat v. Mohonlal Kuberdas Upadhya, 1975 Guj LR 263.