That 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.1

The accused had only given the threats to cause death or grievous hurt but did not an act in
pursuance thereof. It was held that offence of criminal intimidation was not made out and the
accused would be entitled to the acquittal.2

That Mr. Vishnu had warned Mr. SatyaPrakash 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 Dhanlaxmi nor any such things was heard by Mr. Satya Prakash. 3
Also prosecution has not established the fact nor there is any proof that overt act was shown by
Vishnu, Jayesh and Rahul.

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.4The 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.5

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.6

1
Noble Mohandas v. State of T.N., 1989 CrLJ 669 (Mad) LW (Cr) 178 : (1988) 2 All Cr LR 248.
2
Subramanian Swamy (Dr.) v. State. 2011 CrLJ NOC 48 (Mad).
3
4

5
Prabhu v. State of M.P; AIR 2009 SC 745 : (2008) 17 SCC 381
6
Emperor v. Bhojo
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.7

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
Dyspnea8

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.9

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. 10 It is humbly submitted
although it is confessed by Rahul that “Vishnu first raped her followed by me and Jayesh.

7
State v. Shivraj. (2002) CrLJ 2493 (Kant) :2002 AIR Kant HCR 1432.
8

9
Rakesh Gujar and others v. State of Madhya Pradesh
10
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.”11Upon 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. 12 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.13

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
11

12
13
Gunadhar Majhi v. State of Jharkhand, 2011 CrLJ 2536 (Jhar).
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 1 st Class that even Laxmi
kicked the deceased stomach several times the declaration is not admissible.

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.14

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.15

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 Pradesh16

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.17

14
Madammal v. State of Tamil Nadu, 2005 CrLJ 4748 (Mad.)
15
Kuldeep Singh v. State of Rajasthan 2001 CrLJ 479 ( SC).
16
(1991) Cr LJ 989 (SC)
17
Tomaso Bruno v. State of U.P; 2015 CrLJ 1690 : 2015 (1) SCALE 498
That in the instant case also the cause of death of the deceased is Internal Bleeding,
Hypovolemia, Dyspnea18 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. 19That 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.20

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 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.21

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.22 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 incident23

18

19
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
20
21
Alex Marin Fernandes v. State of Maharastra(1983) 3 Crimes 711 (Bom.)
22
23
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 24. 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.
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. 25

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.26

That 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 innocence27 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 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.28

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
24
25
Sahoo v. State of U.P; AIR 1966 SC 40 : 1996 CrLJ 68.
26

27
Padala Veera Reddy v. State of A.P; (1990) I SCJ 44 : 1989 Supp (2) SCC 706 : AIR 1990 SC 79
28
Sudhir Kumar v. State of U.P., (1989) 3 Crimes 583 :1990 CrLJ 119 (All)
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.29

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 the statement of security Guard recorded
U/S 161 CrPC 1973 he said that “I saw two men were coming out of apartment, and when I tried
to stop them, they started their car in hurry and left the apartment. I was not able to see the faces
as it was dark out there.30So there is no conclusive proof that they were Rahul and Vishnu.

29
State of Gujarat v. Mohonlal Kuberdas Upadhya, 1975 Guj LR 263.
30