ISSUE 1: WHETHER THE JUDGEMENT OF SESSIONS’S COURT PUNISHING

ACCUSED NO.1 UNDER SECTION 302, SECTION 326B OF IPC IS CORRECT?

It is humbly submitted that the decision of the Session Court is a Grave Injustice as the
Prosecution was not able to prove beyond reasonable doubt that the Appellant caused the
death of the deceased or that tried to do so with an intention to cause her death

1.1 ABSENCE OF REQUISITE OF ACTUS REUS AND MENS REA

The Criminal Law is based on the Latin phrase:“Actus non facit reum nisi mens sit rea”,
which means “an act does not make a person guilty unless the mind is also guilty”. Thus
the presence of the actus reus as well as mens rea1. The requirement of mens rea can be
dispensed with only if the statute excludes mens rea explicitly or by necessary implication 2. It
imposes a burden on the State to prove that the defendant “performed the relevant actus reus
with the requisite mens rea in the crime charged”3. Hence, the prosecution needs to prove
that a prima facie case exists with regard to the mens rea as well. In the instant case, the
entire prosecution story is unreliable. There is nothing in the facts to give a slight hint that
Sanjay Sharma threw acid or had any intention to throw acid on Seema. It was an allegation
made by the Prosecution. He was in true love with Seema, and can never expect him to even
think of doing such an act. And there is lack of evidences to point towards the actus reas and
mens rea.
1.1.1 ACTUS REUS
For actus reus to be made out there must be a voluntary commission of an unlawful act.
All actions are presumed to be voluntary, but the defence can argue that there was no
actus reus because the defendant had no voluntary control of his or her actions. This was
the case in R v Parks4, where the accused presented evidence that he was sleepwalking at
the time he killed his mother and father in law. The Supreme Court of Canada upheld Mr.
Park’s acquittal on the basis that he was not acting voluntarily.
Thus, for actus reus to be made out there must be a voluntary commission of an unlawful act.
It is humbly submitted before the Hon’ble Court that the unlawful Act of throwing acid was
not committed by the Respondent. He didn’t have any intention of causing hurt to the
deceased, let alone cause her death. He was not the one holding the acid bottle. He is not

1
R v. Tolson, (1889) 23 QBD 168
2
Brend v. Wood, (1946) 62 TLR 462; Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
3
Woolmington v. D.P.P., 1935 AC 462; Smith and Hogan’s Criminal Law 29 (David Ormerod ed., 13th edn.,
2011).
4
R vs Parks (1992) 2 S.C.R. 871.
proven to have thrown the acid, but rather Prosecution is making a mere allegation that he did
it. So there was no Actus Reus on his part.
1.1.2 MENS REA
Courts presume that criminal offences require some form of subjective mens rea—intent,
knowledge, recklessness, or willful blindness—in relation to all aspects of the actus reus
unless Parliament clearly indicates otherwise.”5
Mens rea is a technicalterm, generally taken to mean some blameworthy mental condition,
whether constituted by intention or knowledge or otherwise, the absence of which on any
particular occasion negatives the intention of a crime. The act becomes criminal when the
actor does it with a guilty mind.
As held in the case on Brend v. Wood6 Lord Goddand, C.J., said:
“It is of utmost importance for the protection of the liberty of the subject that a court should
always bear in mind that, unless a statute either clearly or by necessary implication rules out
mens rea as a constituent part of a crime, the court should not find a man guilty of an offence
against the criminal law unless he has a guilty mind.”
The evidence of motive is relevant since it throws a light on the question of intention and
gives clue to a crime, and though the prosecution is bound to prove motive for a crime,
absence of such motive may be a factor in consideration of the guilt of the accused. As
statedby the Supreme Court in Basdev v. State of Pepsu,7motive is something which prompts
a man to form an intention. Here in this instant case we can see that there was no intention of
causing harm to the deceased. Thus no mens rea.

Issue 2 only 34(326 is left)

. SECTION 34 OF THE INDIAN PENAL CODE
It is humbly submitted before the Hon’ble Supreme Court that Section 34 of the Indian Penal
Code recognizes the principle of vicarious liability in criminal jurisprudence. A bare reading
shows that the section could be dissected as follows:
1. Criminal act is done by several persons;
2. Such act is done in furtherance of the common intention of all; and

5
Source https://certificate.queenslaw.ca/blog/the-brains-and-brawn-of-criminal-law-mens-rea-and-actus-reus,
last visited on 11 April 2019.
6
Brend v. Wood,(1946) 62 TLR 462;
7
Basdev v. State of Pepsu AIR 1956 SC 488.
 3. Each of such persons is liable for that act in same manner as it if it were done byhim
alone.8
Original section 34 as it stood in original code of 1860 was “When a criminal act is done by
several persons, each of such persons is liable for that act in the same manner as if the act was
done by him alone.” Later what was observed in Queen vs. Gora Chand Gope & Ors9, new
words were introduced into the act, “in furtherance of common intention”.
It is humbly submitted before Honourable Court that this case strongly comes under the
horizon of the new words which were introduced into the section 34 in 1870 and intention of
accused must be studied very carefully as stated in facts as the accused can’t be liable only
because at the time of that particular act of acid attack he was intending to be partaker with
the doer in a different criminal act.
The reason why all are deemed guilty in such cases is that the presence of accomplice gives
encouragement, support and protection to the person actually committing an act. It must be
noted that no where the accused encouraged, supported and gave protection to Mahesh, who
actually committed the act. The act sprung wholly from the mind of doer. Instead Accused-1,
Sanjay Sharma made it clear to Mahesh that bottle will be used only as a tool to threaten the
victim for compliance to their wishes.
To constitute common intention it is necessary that the intention of each one of them be
known to the rest of them and shared by them. It was held in Hanuman Prasad vsState of
Rajasthan.10
In Pandurang vs. State of Hyderabad11, the court had in mind the ultimate act done in
furtherance of common intention. It is submitted that the ultimate act in this case i.e. act of
acid attack was not in the furtherance of common intention as in light of stated facts it has
been made clear that Sanjay Sharma was devoid of any such intention. He made it very clear
that the acid bottle is just a tool to threaten and no further harm must be caused and the
common intention among the accused evaporated as soon as Mahesh opened the bottle of
acid for the ultimate act. It was sole act of Mahesh and Sanjay Sharma played no part in that.
In Mehbub Shah vs. King Emperor12 it was clear to the Lordships that the common intention
within the meaning of section implies a pre-arranged plan, and to convict the accused of an
offence applying the section it should be proved that the criminal act was done in concert

8
Ratanlal & Dhirajlal, “The Indian Penal Code”, 34th Edition, 2014.
9
Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.
10
Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.
11
Pandurang vs. State of Hyderabad 1955 SC216: 1955 Cr Lj 572.
12
Mehbub Shah vs King Emperor, AIR 1945 PC 148.
pursuant to the pre-arranged plan. Here in this case it is very clear that there was no pre-
arranged plan. Moreover there was no meeting of minds among two accused. Sanjay Sharma
right from start was very clear that no harm must be done to victim.
It was held in Harbans Nonia vs State of Bihar 13 that where the act of murder by main
accused was facilitated by two others by catching hold of the victim but without knowing or
having the intention of causing death, then only common intention that only intention that
could be inferred was that of causing grievous hurt.
In light of the facts of case there was not even the intention of causing the hurt to the victim
in mind of Accused-1. And keeping in view aforesaid judgment it’s not difficult to conclude
that there was absence of common intention on part of Sanjay Sharma in the act.
It is humbly submitted to honorable Court that the Accused can’t be punished under the
principle of joint liability because he had no intention to bring about grievous hurt or even
knowledge of that such degree of hurt was a likely consequence. Similar situation was
observed in Lala Ram vs State of M.P.14
Hence, it is humbly submitted that there was no presence of common intention on the part of
Sanjay Sharma in the act of throwing acid on the face of victim and hence the Appellant,
Sanjay Sharma can’t be charged under section 34 and hence can’t be held guilty under
section 326A of IPC.

13
Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105.
14
Lala Ram vs State of M.PAIR 1994 SC 1452.
ISSUE 3: WHETHER THE CASE IS FIT TO BE CONSIDERED AS RAREST OF
RARE?

It is humbly submitted to the Hon’ble Court that the life sentence itself is not an appropriate
to the appellant 1 because there was a lack mens rea and nor an actus rea for the commission
of murder.

With respect to this issue, the Counsel humbly submits before this Hon’ble Court that the
case can’t be considered as rarest of rare15 also. The submission in this response is twofold:

3.1. SECTION 34 OF THE INDIAN PENAL CODE

In Bachan Singh Case16, the Supreme Court expressed some outstanding reasons relating
wrongdoing and criminal by noting that “….in settling the level of discipline or settling on
the decision of sentence for different offenses, including one under Section 302 of [the]
Penal Code, the court ought not bind its thought “chiefly” or just to the circumstances
associated with the specific wrongdoing, additionally give due attention to the
circumstances of the criminal.”

Further, in Santosh Kumar Bariyar v. State of Maharashtra17, the Supreme Court got an
opportunity to explain this further. The Court explained that “The rarest of rare dictum
entrenches the policy that life imprisonment is the rule and death punishment is an
exception. It is a settled law of interpretation that exceptions are to be construed narrowly.
That being the case, the rarest of rare dictum places an extraordinary burden on the
court, in case it selects death penalty as the favored penalty, to carry out an objective
assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”

Furthermore, the Court needs to draw a balance-sheet of aggravating and mitigating

circumstances. Both aspects have to be given their respective weightage 18.The Court has to
strike a balance between the two and see towards which side the scale/balance of justice
tilts. The principle of proportion between the crime and the punishment is the principle of
`just deserts' that serves as the foundation of every criminal sentence that is justifiable 19.In

15
StateofU.P.v.ShriKrishnaandOthers,AIR1980SC898.
16
BachanSinghv.StateofPunjab,AIR1982SC1325.
17
Santosh Kumar Bariyar v. State of Maharashtra (2009)6SCC498
18
SheikhIshaquev.StateofBihar,(1995)SCW2001.
19
Surjaramv.StateofRajasthan,AIR1997SC18.
other words, the `doctrine of proportionality' has a valuable application to the sentencing
policy under the Indian criminal jurisprudence.

Moreover, in Machhi Singh v. State of Punjab20, the Court laid down certain
guidelines while considering the possibility of sentencing based on rarest of rare case. The
guidelines included the circumstances of the offender also require to be taken into
consideration along with the circumstances of the crime. The option to impose sentence
of imprisonment for life cannot be conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant circumstances.

Furthermore, the guidelines laid down in Bachan Singh Case9 specified that
the mitigatingcircumstances which could be considered by the Court while determining

such serious issues of included firstly, that the offence was committed under the
influence of extreme mental or emotional disturbance. Secondly, the age of the
accused. If the accused is young or old, he shall not be sentenced to death. Thirdly, the
accused acted under the duress or domination of another person.

In yet another case of Vashram Narshibhai Rajpara v. State of Gujarat 21the Court
held that the intensity of bitterness which prevailed and the escalation of simmering
thoughts into a thirst for revenge and retaliation are also to be considered as the relevant
factors.The judges in the case of State v. Baisakha Singh 22, considerated the young age
of the accused.

Moreover, the Constitution of India under Article 21enshrines the right to life and personal
liberty to every person. However, death penalty denies due process of law 23. Its imposition is
always arbitrary and irrevocable which forever deprives an individual of the opportunity to
benefit from new evidence or new laws that might warrant the reversal of a conviction, or
the setting aside of a death sentence.24

There is a lack of mens rea which is an essential element of crime in the instant
case as well as the physical element of the crime that is the event, behavior or state of

20
Machhi Singh v. State of Punja, b AIR1983SC957
21
Vashram Narshibhai Rajpara v. State of Gujarat, , (1996)8SCC167
22
State v. Baisakha Singh, 1999CrLj1399(Raj)
23
Furmanv.Georgia,408U.S.238.
24
Greggv.Georgia,428U.S.153.
affairs connected to the crime called the actus rea of the crime. It is well understood that a
person can only be held guilty of murder if it is absolutely clear that the killing was done.

It is possible for courts to dispense with mens rea i.e. the mental element of the crime in
whole or in part, but they can never dispense with actus reus. There are no ‘thought crimes’
without actus rea. If the actus reas of a crime does not exist or occur, the crime is not
committed.The actus reus of murder comprises the elements of conduct, circumstances in
which the conduct takes place and the results i.e. the consequences of the conduct.

In the instant case, the appellant is alleged to have thrown acid at the victim which is not
indicative of any fatal injuries. Appellant and Mahesharealleged to havefled the spot
separately