SCHOOL OF LAW

UNIVERSITY OF KASHMIR, HAZRATBAL,

SRINAGAR JAMMU & KASHMIR

MOOT COURT MEMORIAL

PRESENTED BY:

NAME:-SUHAIL SHAFFI SHOSHA.

SEMESTER:-L.L.B IV SEMESTER (MORNING SHIFT)

WORK ASSIGNED: SEMESTER MOOT MEMORIAL

TEACHER INCHARGE: Dr. IFTIKHAR HUSSAIN .

H.O.D NOMINEE: Prof. JUNAID AHMAD

_______________________________________________________________

MEMORANDUM OF COUNSEL APPEARING ON BEHALF OF DEEPAK

________________________________________________________________
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MOOT COURT MEMORIAL

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 132 AND 134 OF THE CONSTITUTION OF

INDIA, 1950.

THE STATE………………. (APPELLANT)

V.
DEEPAK……………………. (RESPONDENT)

MEMORIAL SUBMITTED ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF DEEPAK.

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3-5

INDEX OF AUTHORITIES 6-8

 LEGISLATION 6
 CASES REFERRED 6
 BOOKS REFERRED 7
 LEGAL DATABASES 7
 IMPORTANT DEFINATIONS 8

STATEMENT OF JURISDICTION 9

STATEMENT OF FACTS 10-11

QUESTIONS PRESENTED 12

SUMMARY OF PLEADINGS 13-14

PLEADINGS 15-26

1. Whether Deepak had committed an offence under Section 326A r/w Section 34 of IPC,
1860? 15-19

2. Whether Deepak had committed an offence under section 354d of IPC? 20-22

3. Whether there exist common intention between the accused Deepak and Mahesh ? 23-25

4. Whether the state is justified for seeking permission for addition of charge u/s 366 of IPC?
26

PRAYER 27

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LIST OF ABBREVIATIONS

AC Appeal Cases

A.I.R All India Reporters

All Indian Law Reports Allahabad series

A.P Andhra Pradesh

Art. Article

BLJ Bombay Law Journal

Bom LR Bombay Law Reporter

Cr. LJ Criminal Law Journal of India

CrPC Criminal Procedure Code

DPs Directive Policy

Edn. Edition

FRs Fundamental Rights

Guj Gujrat

Hon’ble Honorable

IPC Indian Penal Code

Jul July

Ors. Others

QBD Queen’s Bench Division (Eng)

pat Indian Law Reports Patna series

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r/w Read with

S Section

SC Supreme Court

SCR Supreme Court Reporters

Sec. Section

TLR Times Law Reports (Eng)

U.P Uttar Pradesh

u/s Under section

V. Versus

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INDEX OF AUTHORITIES

LEGISLATION

1. THE INDIAN CONSTITUTION ACT, 1950.

2. INDIAN PENAL CODE, 1860.
3. CODE OF CRIMINAL PROCEDURE, 1973.

CASES REFERRED

 Basdev v. State of Pepsu, AIR 1956 SC 488

 Bherusingh v. State, 1956 Madh. BLJ 905
 Brend v. Wood, (1946) 62 TLR 462;
 C. Magesh v. State of Karnataka, AIR 2010 SC 2768, 49;
 Dharam Pal v. State of Haryana, AIR 1978 SC 1492.
 Garib Singh v. State of Punjab, 1972 Cr LJ 1286.
 Ghurey Lal v. State of UP Criminal Appeal No. 155 of 2006
 Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.
 Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105.
 Lata singh v.State of Uttar Pradesh, AIR 2006 SC 2522
 Mehbub Shah vs King Emperor, AIR 1945 PC 148.
 Mepa Dana, (1959) Bom LR 269
 Nandu & Dhaneshwar Naik v. The State, 1976 CrLJ 250.
 Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
 Oswal Danji v. State, (1960) 1 Guj LR 145
 Pandurang v. State of Hyderabad, AIR 1955 SC 216
 Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.
 R v Parks, (1992) 2 S.C.R. 871
 R v. Prince, L.R. 2 C.C.R. 154 (1875);
 R v. Tolson, (1889) 23 QBD 168
 Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653.
 Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.
 Sohan Lal v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.

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 State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.

 Suraj Singh v. State of Uttar Pradesh, 2008 (11) SCR 286.
 T.J.Edward v. C.A. Victor Immanuel, 2002 Cr LJ 1670 (ker).
 Uma Dutta v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.
 Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.)
 William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116.
 Woolmington v. D.P.P., 1935 AC 462;

BOOKS REFERRED

 V.N. SHUKLA, CONSTITUTION OF INDIA (12TH ED., 2013).

 DR. D.D. BASU, CONSTITUTIONAL LAW OF INDIA, (8TH ED., 2009).
 P.M. BAKSHI, THE CONSTITUION OF INDIA, (14TH ED., 2017).
 DR. J.N. PANDEY, THE CONSTITUTIONAL LAW OF INDIA, (51ST ED., 2014).
 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH ED., 2010).
 R.S. BEDI, THE CONSTITUION OF INDIA, (10TH ED., 2013).
 DR. S.C. KASHYAP, CONSTITUTIONAL LAW OF INDIA, (1ST ED., 2008).
 DR. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA,54TH EDITION, 2017.
 C.K TAKWANI, LECTURES ON ADMINISTRATIVE LAW, FOURTH EDITION, 2007.
 K D GAUR, TEXTBOOK ON INDIAN PENAL CODE, SIXTH EDITION, 2018.
 UNIVERAL’S CRIMINAL MANUAL, 2017 EDITION.
 SHAILENDER MALIK, THE INDIAN PENAL CODE, TWENTY FIFTH EDITION, 2011.
 RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, THIRTHY FOURTH
EDITION, 2012

LEGAL DATABASES

 WWW.YOURARTICLELIBRARY.COM
 WWW.LEGALSERVICEINDIA.COM
 WWW.INDIANKANOON.ORG
 WWW.LAWRATO.COM
 WWW.MANUPATRA.COM

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 WWW.INDIANCASELAWS.ORG
 WWW.INDLAW.COM
 WWW.JUDIC.NIC.IN
 WWW.LEXISNEXIS.COM
 WWW.SCCONLINE.CO.IN
 WWW.WESTLAW.COM
 WWW.NCBI.NLM.NIH.GOV

IMPORTANT DEIFINITION:
1. The appellant for the purpose of this memorandum shall be the State.
2. The respondents for the purpose of all the issue shall be Deepak .

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of India under Article 132 and
134 of the Constitution of India,1950.

The respondents have appeared to the Hon’ble Supreme Court of India in response to the
petitions filed by the petitioners.

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STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble Court the facts of the case are
summarized as follows:

A. BACKGROUND OF THE CASE.

1) That Arushi an 18 year old girl was a student of 12th class.
2) That Deepak, a maths teacher of Arushi in her school, secretly developed emotions
for her and also Arushi admired him.
3) That on Arushi’s 18th birthday Deepak organized a birthday party for her at his house
and gifted her an expensive watch which was happily accepted by Arushi.

B. HATE INCITED BETWEEN ARUSHI’S PARENTS AND DEEPAK.

4) That on 14th Feb, 2016 Deepak proposed to Arushi for marriage and since Arushi also
admired him she asked Deepak to speak to her parents regarding the same.
5) That on 20th Feb 2016, Deepak approached her parents with the marriage proposal as
asked by Arushi. However Arushi’s parents rejected his offer and also strongly
admonished Arushi and threatened that they will discontinue her studies.
6) However out of love Deepak tried contacting Arushi believing that all her actions
were under undue influence of her parents.
7) That as a responsible man Deepak again tried to convince Arushi’s parents for their
marriage but her parents strongly revoked his proposal and also beat him brutally and
asked him to leave.

C. ACTION ABETTED BY MAHESH

8) That enraged with the feeling of dejection when Deepak went to Mahesh for seeking
advice, Mahesh insisted Deepak that he should find Arushi alone and take her to the
temple for marrying her. And also Mahesh misleaded Deepak that incase Arushi
resisted the offer due to parental pressure Mahesh would threaten her with a bottle of
acid.
9) That since Deepak parents died in a road accident, Deepak always confided him and
looked upon Mahesh as his father. Deepak, who was initially reluctant agreed to the
plan on the condition that no harm will be caused to Arushi and the bottle of acid will
only be used as a tool to convince her for compliance to their wishes.

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10) That on 23rd March 2017 when Deepak and Mahesh saw Arushi passing on a lonely
road, they approached Arushi to accompany them to the temple so that they can get
married. On Arushi’s refusal, Mahesh carrying the bottle of acid threatened Arushi.
11) That when chaos was created, Mahesh accidentally spilled acid on Arushi.
12) That the Session Court convicted Deepak under Section 326 A r/w Section 34 of IPC,
1860 and sentenced him to 10 years of rigorous imprisonment. He was also asked to
pay compensation to Arushi to the sum of Rs. 200000/- to be paid immediately. He
was also awarded rigorous imprisonment for 2 years under section 345D, IPC, 1860.
Both the sentences were to run concurrently.

D. MATTER BEFORE THE COURT

13) That since Deepak was aggrieved by the decision of the District Court, he filed an
appeal to the High Court.
14) That the High Court acquitted Deepak and since the State was aggrieved by the
Decision of the High Court, it filed an appeal to the Supreme Court.

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QUESTIONS PRESENTED

ISSUE I

WHETHER DEEPAK HAD COMMITTED AN OFFENCE UNDER SECTION 326A

R/W SECTION 34 OF IPC, 1860?

ISSUE II

WHETHER DEEPAK HAD COMMITTED AN OFFENCE UNDER SECTION 354D

OF IPC?

ISSUE III

WHETHER THERE EXIST COMMON INTENTION BETWEEN ACCUSED

DEEPAK AND MAHESH AS PER THE SECTION 34 OF IPC, 1860 ?

ISSUE IV

WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION FOR

ADDITION OF CHARGE U/S 366 OF IPC?

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SUMMARY OF PLEADING

ISSUE I: WHETHER DEEPAK HAD COMMITTED AN OFFENCE UNDER

SECTION 326A R/W SECTION 34 OF IPC, 1860?

It is humbly submitted before the Hon’ble Supreme Court that the appellant had not
committed any offence under Section 326A r/w Section 34 of IPC as (1.1) There was
absence of the requisites of committing a criminal offence under Sec. 326A i.e. (1.1.1) there
was absence of actus reus and (1.1.2) there was absence of mens rea.(1.1.3) Section 326A
can be attracted only when the act is done voluntarily, but the Respondent has no
voluntary control over the act done by Mahesh.

ISSUE II: WHETHER DEEPAK HAD COMMITTED AN OFFENCE UNDER

SECTION 354D OF IPC?

It is humbly submitted before the Hon’ble Supreme Court that the Respondent has not
committed any offence under Section 354 D of Indian Penal Code,1860, as Arushi did not
show any disinterest towards the Respondent and also the conduct of Respondent of trying to
talk with Arushi was reasonable and justified.

ISSUE III: WHETHER THERE EXIST COMMON INTENTION BETWEEN

DEEPAK AND MAHESH AS PER THE SECTION 34 OF IPC, 1860?

It is humbly submitted before the Hon’ble Supreme Court that there existed no common
intention between Deepak and Mahesh as per Section 34 of IPC, 1860 as, (3.1) Deepak had
no intention of committing such an act and he did not agree to that and, (3.2) the act was not
done in furtherance of the common intention under Section 34 which is important to attract
the Section.

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ISSUE IV: WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION

FOR ADDITION OF CHARGE U/S 366 OF IPC.

It is humbly submitted before the Hon’ble Court that the present matter has already been tried
before the Sessions Court. The Magistrate, at the time of committal proceedings under
Section 209, CrPC did not charge the accused with Section 366, IPC, 1860, and the State is
not justified for seeking permission for addition of charge U/S 366 of IPC as the late framing
of the charge would cause prejudice to the accused and no injustice would be caused to the
complainant by refusal.

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PLEADING

I. WHETHER DEEPAK HAD COMMITTED AN OFFENCE UNDER SECTION 326

R/W SECTION 34 OF IPC, 1860?

It is humbly submitted before this Hon’ble Supreme Court that to constitute a criminal
offence, two essential elements are required i.e. actus reus and mens rea. In the present case
there has been a gross failure of justice on part of the Session courts. There has been a grave
error in convicting Deepak solely on the basis of his mere presence at the site of the incident.
However the High Court on the appeal made by the respondent Deepak passed a rationale
and fair judgment and had acquitted him.

1.1 ABSENCE OF REQUISITE OF ACTUS REUS AND MENS REA

“ At the most fundamental level, criminal law is based around a single Latin phrase:
“Actus non facit reum nisi mens sit rea”, which translates to “an act does not make a
person guilty unless the mind is also guilty”.
Evidence must be tested for its inherent consistency and inherent probability of the story1.
In the instant case, the entire prosecution story is unreliable.It is a well settled principle in
common law that an offence is constituted by the presence of the actus reus as well as
mens rea2. The requirement of mens rea can be dispensed with only if the statute excludes
mens rea explicitly or by necessary implication3. 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”4. Hence, the prosecution needs to prove that a prima facie case exists with
regard to the mens rea as well. There is nothing in the facts to give a slight hint that
Deepak threw acid or had any intention to throw acid on Arushi. He was in true love with
Arushi, and could never think of doing such an act.

1
C. Magesh v. State of Karnataka, AIR 2010 SC 2768, ¶ 49; Suraj Singh v. State of Uttar Pradesh, 2008 (11)
SCR 286.
2
R v. Tolson, (1889) 23 QBD 168
3
Brend v. Wood, (1946) 62 TLR 462; Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
4
Woolmington v. D.P.P., 1935 AC 462; Smith and Hogan’s Criminal Law 29 (David Ormerod ed., 13th edn.,
2011).

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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 Parks5, 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 and he was not holding the bottle of acid, so there
was no Actus Reus on his part. Also the act was unlawful, but was an accident and the
respondent had no voluntary control on it and the acid got poured accidentally by
Mahesh. He also strictly prohibited Mahesh for not using acid.

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.”6
Mens rea is a technical term, 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. Wood7 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.”

5
(1992) 2 S.C.R. 871.
6
Source https://certificate.queenslaw.ca/blog/the-brains-and-brawn-of-criminal-law-mens-rea-and-actus-reus,
last visited on 11 April 2019.
7
(1946) 62 TLR 462.

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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 not bound to prove motive for a
crime, absence of motive may be a factor in consideration of the guilt of the accused. As
stated by the Supreme Court in Basdev v. State of Pepsu,8 motive is something which
prompts a man to form an intention.

1.1.3. AS PER SECTION 326 A WHOEVER VOLUNTARILY CAUSING GRIEVOUS

HURT BY USE OF ACID ETC. –

Whoever causes permanent or partial damage or deformity to, or bums or maims or

disfigures or disables, any part or parts of the body of a person or causes grievous hurt by
throwing acid on or by administering acid to that person, or by using any other means
with the intention of causing or with the knowledge that he is likely to cause such injury
or hurt, shall be punished with imprisonment of either description for a term which shall
not be less than ten years but which may extend to imprisonment for life, and with fine;

Provided that such fine shall be just and reasonable to meet the medical expenses of the
treatment of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.
“A person is said to cause an effect “volun­tarily” when he causes it by means whereby
he intended to cause it, or by means which, at the time of employing those means, he
knew or had reason to believe to be likely to cause it.”9
According to sec. 39 of IPC 1860, a person is said to cause an effect voluntarily, when he
causes it
(i) intentionally, or
(ii) he knew or had reasons to believe, to be likely to cause it.
It is humbly submitted before the Hon’ble Court that our client did not cause the act
voluntarily as firstly he had no intention of causing harm to the victim and secondly he
had no reasons to believe that such incident would occur as it happened unintentionally.
Moreover our client did not commit such an act.
1.2. SECTION 34 OF THE INDIAN PENAL CODE

8
AIR 1956 SC 488.
9
section 39 of IPC

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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
3. Each of such persons is liable for that act in same manner as it if it were done by
him alone.10
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 &
Ors11, 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 nowhere 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, Deepak 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 vs State of
Rajasthan.12

In Pandurang vs. State of Hyderabad13, 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 Deepak 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
10
Ratanlal & Dhirajlal, “The Indian Penal Code”, 34th Edition, 2014.
11
Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.
12
Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.
13
AIR 1955 SC216: 1955 Cr Lj 572.

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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 Deepak played no part in that.

In Mehbub Shah vs. King Emperor14 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 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. Deepak right from start was very clear that no harm must be done to victim.

It was held in Harbans Nonia vs State of Bihar15 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 Deepak in the act.

It is humbly submitted to honorable Court that the Accused-1 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.16

Hence, it is humbly submitted that there was no presence of common intention on the part
of Deepak in the act of throwing acid on the face of victim and hence the Accused-1,
Deepak can’t be charged under section 34 and hence can’t be held guilty under section
326A of IPC.

14
Mehbub Shah vs King Emperor, AIR 1945 PC 148.
15
Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105.
16
AIR 1994 SC 1452.

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II. WHETHER DEEPAK HAD COMMITTED AN OFFENCE UNDER SECTION

354D OF IPC?

It is humbly submitted before the Hon’ble Supreme Court that my client Deepak has not
committed an offence under Section 354 D of Indian Penal Code,1860.

According to Section 354D of IPC,

Any man who—

i. follows a woman and contacts, or attempts to contact such woman to foster personal
interaction repeatedly despite a clear indication of disinterest by such woman; or

ii. monitors the use by a woman of the internet, email or any other form of electronic
communication, commits the offence of stalking;

Provided that such conduct shall not amount to stalking if the man who pursued it proves
that—

(i) it was pursued for the purpose of preventing or detecting crime and the man accused
of stalking had been entrusted with the responsibility of prevention and detection of
crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed
by any person under any law; or

(iii)in the particular circumstances such conduct was reasonable and justified.17

It is humbly submitted that such conduct on the part of Respondent trying to talk to Arushi
doesn’t amount to stalking as it is covered in the clause( iii ) of the Proviso to Sub Sec. (1)
which says that “ in the particular circumstances such conduct was reasonable and
justified.” Moreover, even the ingredients of main definition, such as “disinterest” and
“Foster personal interaction” may not be relevant in such a scenario.

It is humbly submitted before Hon’ble Court in light of facts that the girl never refused his
offer of marrying her. Nowhere in the fact statement a clear “no” to foster a relationship has
been found.

17
Section 354D of Indian Penal Code

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In fact Arushi, the victim told him to speak to her parents for the same. Instead of denying the
proposal she told him to talk to her parents. This is a strong sign that she was not against
marriage proposal.

Section 354D, IPC states that an act would not amount to stalking if in the particular
circumstance, such conduct was reasonable and justified. The accused was always under the
belief she was avoiding him because of pressure of her parents and she was felt threatened by
the consequences. The fact that the accused, rather than stalking the girl, was making
constant efforts in good faith to come to know the real reason why the girl was denying
contact with him and whether she was making a decision with a free mind cannot be
excluded. Hence, the case couldn’t be brought under the horizon of stalking as held by the
appellant.

Our client had constantly approached the parents of the girl with the proposal of marriage and
tried to convince them for same instead of taking up non- desirable means. This clearly shows
lack of malice on the part of the accused.

The circumstantial evidence relied upon by the prosecution is not sufficient to raise an
irresistible inference that the accused has committed the offence of stalking.

The burden of proving the charge lies upon the prosecution. It has failed to discharge its
burden. Thus, the benefit has to go to the accused. The accused must be entitled to get the
benefit of doubt as held in Ghurey Lal v. State of UP.18

Hence it is humbly submitted that the accused shouldn’t be held guilty under Section 354D,
IPC, 1860 as the accusations made will not stand the test of law even if the definition of this
section is quite general and wide. It says that such conduct does not amount to stalking in
particular circumstances where the conduct was justified and reasonable. The conduct of the
Respondent was justified and reasonable as the acts of Arushi clearly showed that she was
interested in our client and he in good faith went to talk with Arushi thinking she was under
undue influence of her parents, as she was a bright student and her parents threatened to
discontinue her studies if she kept any form of contact with the respondent.

18 th
Ghurey Lal v. State of UP on 30 Jul, 2008. Criminal Appeal No. 155 of 2006

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Moreover in the case of Lata singh v.State of Uttar Pradesh19, the Supreme Court viewed the
right to marry as a component of right to life under Art 21 of Indian Constitution the court
observed that: “This is a free and democratic country, and once a person becomes a major he
or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of
such inter-caste marriage the maximum they can do is that they can cut off social relations
with the son or daughter, but they cannot give threats or commit or instigate acts of violence
and cannot harass the person who undergoes such intercaste marriage”.20 Since both Arushi
and our client have the right to marry as per their choice. Arushi’s parents cannot pressurize
Arushi and assault our client when he went again with the proposal to marry Arushi and
threaten Arushi to stay away from him or else they would discontinue her studies.

19
AIR 2006 SC 2522
20
http://www.legalservicesindia.com/article/1001/right-to-marry.html, last visited on 12 Apr, 2019.

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III. WHETHER THERE EXIST COMMON INTENTION BETWEEN DEEPAK AND

MAHESH AS PER THE SECTION 34 OF THE IPC, 1860?

It is humbly submitted before the Hon’ble Supreme Court that there existed no common
intention between Deepak and Mahesh as per the Section 34 of the IPC, 1860.

SECTION 34 OF INDIAN PENAL CODE,1860

The Section 34 of the Indian Penal Code, 1860 states; “When a criminal act is done by
several persons in furtherance of the common intention of all, each of such persons is liable
for that act in the same manner as if it were done by him alone.”21

This section is intended to meet cases in which it may be difficult to distinguish between the
acts of the individual members of a party or to prove what part was exactly taken by each of
them in furtherance of the common intention of all.22 The reason why all are deemed guilty in
such cases is that the presence of accomplices gives encouragement, support and protection to
the person actually committing an act.

The essential ingredients of Sec. 34 of IPC as stated and restated by law Courts in plethora
of cases are:

(i) Common intention to commit a crime, and

(ii) Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability23.

This provision is only a rule of evidence and does not create a substantive offence. It lays
down the principle of joint liability. To charge a person under this section, it must be shown
that he shared a common intention with another person or persons to commit a crime and
subsequently the crime was perpetrated.24The Apex Court held in a case25, that in the case of
Sec. 34 it is well established that a common intention presupposes prior concert. It requires a
pre-arranged plan because before a man can be vicariously convicted for the criminal act of
another, the act must have been done in furtherance of the common intention of them all.

21
Section 34, Indiana Penal Code.
22
Mepa Dana, (1959) Bom LR 269.
23
Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.
24
Garib Singh v. State of Punjab, 1972 Cr LJ 1286.
25
Pandurang v. State of Hyderabad, AIR 1955 SC 216

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To constitute common intention it is necessary that the intention of each one of the accused
was known to the rest of them and was shared by them. The test to decide if the intention of
one of them is common is to see whether the intention of one was known to the other and was
shared by that other. In drawing the inference the true rule of law which is to be applied is the
rule which requires that guilt is not to be inferred unless that is the only inference which
follows from the circumstances of the case and no other innocuous inference can be drawn.26

Each can individually cause a separate fatal blow. Yet, there may not exist a common
intention if there was no prior meeting of the mind. In such a case, each would be
individually liable for the injuries, he causes.27

3.1 ABSENCE OF COMMON INTENTION

It is humbly submitted that the accused Deepak is being dragged into the picture for no
justifiable cause and for no fault, participation or involvement of his in the alleged act in
question. It is submitted that neither the accused had any intention with Mahesh nor did
he act in concert with Mahesh to commit such act. ‘Common intention’ implies a pre-
concerted plan and acting in concert pursuant to the plan. Common intention comes into
being prior to the commission of the act in point of time, which need not be a long gap.28

There was no evidence that prior to the incident there was any common intention shared
by both the accused. The said intention did not develop at the time of the incident as well
and therefore, it was held that Sec. 34 of the Indian Penal Code cannot be resorted to hold
accused guilty of any crime.29

Therefore, it is humbly submitted that there was no common intention between Deepak
and Mahesh, in fact he did not have any knowledge of any such intention of Mahesh of
throwing acid on Arushi as Deepak strictly said no for the use of acid to which Mahesh
agreed. Hence, in absence of common intention he must not be held liable under S.34 of
the IPC.

26
Oswal Danji v. State, (1960) 1 Guj LR 145.
27
Nandu & Dhaneshwar Naik v. The State, 1976 CriLJ 250.
28
Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653.
29
Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.).

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3.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION

In view of the phraseology of S.34 existence of common intention is not enough, the
criminal act impugned to attract S.34 must be committed in furtherance of common
intention. The section operates only when it is found that the criminal act done by an
individual is in furtherance of the common intention and not without it.30 The words ‘in
furtherance of the common intention of all’ in S.34, IPC do not require that in order that
the section may apply, all participants in the joint acts must either have common intention
of committing the same offence or the common intention of producing the same result by
their joint act be performed.

It is true that no concrete evidence is required to prove a common intention between two
people to commit an act. It is however key here to understand that such evidence must be
such that it does not leave any room for doubt against such an intention.31

Moreover, to sustain a charge under s. 34, active participation in the commission of the
criminal act is required which is clearly absent in the present case.

It is humbly submitted to honorable Court that the Accused-1 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.32

Hence, it is humbly submitted that there was no presence of common intention on the part
of Deepak in the act of throwing acid on the face of victim and hence the Accused-1,
Deepak can’t be charged under section 34 The counsel submits that since the
aforementioned two essential conditions have not been met with in the present. It is
further submitted that the accused must not be held liable under S.34 of IPC.

30
State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.
31
Dharam Pal v. State of Haryana, AIR 1978 SC 1492.
32
AIR 1994 SC 1452.

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IV. WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION FOR

ADDITION OF CHARGE U/S 366 OF IPC?

It is humbly submitted before the Hon’ble Court that the present matter has already been tried
before the Sessions Court. The Magistrate, at the time of committal proceedings under
Section 209, CrPC did not charge the accused with Section 366, IPC, 1860.

An application for addition or alteration of the charge should be made immediately after the
charge has been read out and explained by the Magistrate.33 It is submitted that the
prosecution had the opportunity to get the new charge of Section 366, IPC added against the
accused. But the prosecution did not do so.

It is further submitted that the High Court having inherent power to do so, did not find any
ground to add a charge under Section 366, IPC against the accused.

The late framing of a charge would cause prejudice to the accused and no injustice would be
caused to the complainant by refusal.34

It is to be noted that the High Court has acquitted the accused from all the charges and has
dismissed the appeal of the State. When the accused was discharged of all the charges and no
charge existed against him, an application by prosecution under Sec 216, CrPC was not
maintainable.35 The addition of a new charge will amount to re-opening of the trail and will
dissipate the valuable time of the Hon’ble Supreme Court.

Hence, it is humbly requested from the Hon’ble Court not to maintain the permission of the
State to add a charge under Sec 366, IPC against the accused.

33
T.J.Edward v. C.A. Victor Immanuel, 2002 Cr LJ 1670 (ker).
34
Uma Dutta v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.
35
Sohan Lal v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.

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PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS
THAT THE HON’BLE SUPREME COURT BE PLEASED:

1. To declare that Mr. Deepak is not guilty of the crime of causing grievous hurt by use of
acid and stalking.

2. To declare that permission shall not be given to the State to add a charge of Section 366,
IPC against the accused.

3. To declare that the High Court’s acquittal order of Mr. Deepak should be reserved.

AND/OR

PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE

INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE RESPONDENT AS IN DUTY BOUND

SHALL EVER PRAY.

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