1ST GALGOTIAS UNIVERSITY NATIONAL TRIAL ADVOCAY COMPETITION

(ONLINE), 2020-21

IN THE COURT OF SESSIONS AT MALAKPUR, XENON

S.C. No. 246 of 2021

STATE OF XENON
(PROSECUTION)
V.
1. RAVI TOSI 2. MUKUL TOSI 3. ROHIT
(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 186, 109 & 304 READ WITH SECTION 34 OF THE HINDIA PENAL CODE,
1860

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................... IV

INDEX OF AUTHORITIES .............................................................................................. V

STATEMENT OF JURISDICTION ................................................................................ IX

STATEMENT OF FACTS ................................................................................................ X

STATEMENT OF CHARGES ......................................................................................... XI

SUMMARY OF ARGGUMENTS .................................................................................. XII

ARGUMENTS ADVANCED ............................................................................................. 1

1. THAT THE ACCUSED IS GUILTY OF CULPABLE HOMICIDE UNDER

SECTION 304 OF IPC........................................................................................................ 1

1.1. MENS REA IS ESTABLISHED ....................................................................................... 3

1.1.1 Witness Statements ............................................................................................... 4

1.1.2 Forensics .............................................................................................................. 5

2. THAT THE ACCUSED IS GUILTY UNDER SECTION 109 OF IPC ..................... 5

2.1. MUKUL INSTIGATED RAVI TO DO THE ACT AND HENCE ARE PART OF THE CRIME ...... 7

2.2. ACTIVE STIMULATION IS ESSENTIAL FOR CAUSING ABETMENT. ................................ 8

2.3. THAT RAVI AND MUKUL HAD COMMON INTENTION TO CAUSE DEATH OF THE

DECEASED. ...................................................................................................................... 11

3. THAT THE ACCUSED OBSTRUCTED THE PUBLIC SERVANT WHILE HE

WAS DISCHARGING HIS LAWFUL DUTIES ............................................................. 13

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3.1. PUBLIC SERVANT ACTING IN GOOD FAITH AND UNDER THE COLOUR OF HIS OFFICE

...................................................................................................................................15

3.2. VOLUNTARY OBSTRUCTION TO PUBLIC SERVANT ..................................................... 15

PRAYER ........................................................................................................................ XIII

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LIST OF ABBREVIATIONS

S. NO. ABBREVIATIONS EXPANSIONS

1. A.I.R. All India Reporter

2. Cri LJ / Cr LJ Criminal Law Journal

3. Cr.P.C. Code of Criminal Procedure

4. DW Defence Witness

5. Ed. Edition

6. IPC Indian Penal Code

7. IC Indian Cases

8. n. Foot Note no.

9. p. Page No.

10. P&H Punjab and Haryana High Court

11. Pat Patna High Court

12. PW Prosecution Witness

13. SC Supreme Court

14. S.C.C. Supreme Court Cases

15. SCJ Supreme Court Journal

16. SCR Supreme Court Reporter

17. Sec. Section

18. v. Versus

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INDEX OF AUTHORITIES

CASES

Anda v. State of Rajasthan A.I.R. 1966 SC 148 ................................................................... 13

Ankeri v. State of Rajasthan A.I.R. 1994 SC 842 ................................................................ 12

Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 S.C.C. 454 ................................... 2

Babulal, 1956 Bom LR 1021 ............................................................................................... 13

Baby John v. State, 1953 Cr LJ 1273 ; A.I.R. 1953 Trav-co 251 : 1952 Ker LT 737 .............. 7

Baleshwar Rai v State of Bihar [1963] 2 SCR 433 ............................................................... 12

Banwari Lal v. State of Haryana 1979 Cl R (P&H) 233 (235). .............................................. 6

Baxanto v. State of U.P. A.I.R. 1965 All 120 : (1965) J CrLJ 267 ......................................... 7

Birdhi Chand Jaipuria v. Darbari Jayaswal A.I.R. 1932 Pat 276 .......................................... 15

BN Srikantaiah v. State of Mysore A.I.R. 1958 SC 672 ....................................................... 12

Cooverji, (1906) 9 Bom LR 159, Khadim Sheikh (1869) 4 Beng LR (ACr J) 7 ................... 10

D. Yohannan v. State of Kerala, A.I.R. 1958 Ker 207:1958 Cr LJ 1021................................. 2

Daya Nand v. State of Haryana, 2008 Cr LJ 2975 (SC): A.I.R. 2008 SC 1823 ....................... 2

Dukhmochan Pandey .v State of Bihar A.I.R. 1998 SC 40................................................... 12

Faguna Kanta v. The State of Assam, 1959 CrLJ 917 (SC) : A.I.R. 1959 SC673 ................... 5

Hardev Singh v. State of Punjab A.I.R. 1975 SC 179 .......................................................... 11

Hari Ram v. State of Uttar Pradesh (2004) 8 S.C.C. 146 ...................................................... 11

Matiullah Sheikh v. State of West Bengal A.I.R. 1965 SC 132 ............................................ 11

Nandu Rastogi v. State of Bihar (2002) 8 S.C.C. 9 .............................................................. 11

Shankarlal Kacharabhai v. State of Gujarat A.I.R. 1965 SC 1260 ....................................... 10

State of Karnataka v. Jinappa Payappa Kudachi (1994) Supp 1 S.C.C. 178.......................... 14

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State of Uttar Pradesh v. Iftikhar Khan A.I.R. 1973 SC 863 ................................................ 11

Hari Om v. State of Uttar Pradesh (1993) Supp 2 S.C.C. ..................................................... 12

Hari Ram v. State of Uttar Pradesh (2004) 8 S.C.C. 146. ..................................................... 12

Inder Singh v. State of Pepsu, A.I.R. 1955 SC 439: 1955 Cr LJ 1014. ................................... 3

Jamnadas Tharoomal v Emperor A.I.R. 1940 Sind 42.......................................................... 15

Jaspal Singh v. State of Punjab, A.I.R. 1986 SC 683 ............................................................. 3

Jayaraj v. State of T.N. A.I.R. 1976 SC 1519 ........................................................................ 1

Joginder Singh v. State of Haryana A.I.R. 1994 SC 461 ...................................................... 12

Katar Singh v. State of Punjab (1994) 3 S.C.C. 569. .............................................................. 5

Keshub Mahindra v. State of M.P., 1996 (3) Crimes 288 (SC) ............................................... 3

Krishna Govind Patil v. State of Maharashtra A.I.R. 1963 SC 1413..................................... 12

Lakhan v. State, 2008 Cr LJ 1194 (MP). Ganraj v. State, 2008 Cr LJ 253 (Raj). .................... 2

Malan v. State of Maharashtra ,A.I.R. 1960 Bom 393............................................................ 6

Maxwell v. D.P.P for Northern India, (1987) 1 WLR 1350 HL.............................................. 6

Mohan Singh v. State of Punjab A.I.R. 1963 SC 174 ........................................................... 12

Nashri Naik v. State, 1998 Cr LJ 3984 (Ori). ......................................................................... 4

Nirbhai Singh, 1972 Cr LJ 1474 (MP) ................................................................................... 1

Nazir Ahmad v. Emperor, A.I.R. 1927 All 730 ...................................................................... 8

Om Prakash v. State of Haryana 2015 Cr LJ 586 ................................................................... 9

Queen v. Rasookoollah, (1869) 12 WR (Cr) 51 ..................................................................... 9

Rajib Neog v. State of Assam, 2011 Cr LJ 399 (Gau) ............................................................ 8

Ramabatar Agarwalla v. State, 1983 Cr LJ 122 (ori) : (1982) 54 Cut LT 345 ......................... 8

Sital v. Emperor, A.I.R. 1935 Oudh 468; 36 Cr LJ 1151. ..................................................... 10

State of M.P. v.Mukesh (2006) 13 S.C.C. 197 : (2007) 2 S.C.C. (Cn)680 .............................. 9

State of Punjab v. Iqbal Singh, A.I.R. 1991 SC 1532. ............................................................ 7

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The Queen v. Ameer Khan , (1871) 17 WR (Cr) 15 ............................................................... 9

Trilok Chand v. State of Delhi, A.I.R. 1977 SC 666: 1977 Cr LJ 254: (1975) 4 S.C.C. 761. .. 9

Odwil Devaki Amma v. State of Kerala, 1982 Cr LJ 11 Ker (NOC) .................................... 13

Pandurang v. State of Hyderabad A.I.R. 1955 SC 216. ........................................................ 12

Phudki v. Stae of Uttar Pradesh, A.I.R. 1955 All 104 .......................................................... 13

Prabhati Lal v. State, 2008 Cr LJ 859 (Raj). .......................................................................... 2

Q.E. v. Sommanna, 1827 ILR 15 Mdr. 221 ......................................................................... 13

Ramashish Yadav v. State of Bihar A.I.R. 1999 SC 3830 ................................................... 12

Rishideo Pande v. State of Uttar Pradesh (1955) Cr LJ 873. ................................................ 11

Santosh Kumar Jain v. State, A.I.R. 1951 SC 201................................................................ 13

State of Uttar Pradesh v. Iftikhar Khan A.I.R. 1973 SC 863 ................................................ 11

State v. B G Misar A.I.R. 1957 Bom 10. ............................................................................. 15

Subran v. State of Kerala, 1993 Cr LJ 1387 (SC) ................................................................... 3

Sukha Singh v. State of Karnataka, 2015 Cr LJ 3133 (P&H). ................................................ 4

Suresh v. State of Uttar Pradesh A.I.R. 2001 SC 1344 ......................................................... 12

Tuck v. Robson, (1970) 1 All ER 1171.................................................................................. 6

Yallappa v. State of Karnataka (1994) 1 S.C.C. 730 ............................................................ 12

STATUTES

The Code of Criminal Procedure, 1973 (Act 2 of 1973) ......................................................... 3

The Indian Evidence Act, 1872 (Act 18 of 1872) ................................................................. 12

The Indian Penal Code, 1860 (Act 45 of 1860) ...................................................................... 9

The Police Act, 1861 ........................................................................................................... 14

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OTHER AUTHORITIES

See Corpus Juris Secundum, Vol. 1, p. 306. .......................................................................... 5

BOOKS

KENNY ON OUTLINES OF CRIMINAL LAW, 19TH ED., PARA 79, PP.131-132................................ 1

CROSS & JONES, INTRODUCTION TO CRIMINAL LAW, 9TH EDN., P.389., PARA19.8 .................... 7

FIELD, C.D., EXPERT EVIDENCE: MEDICAL AND NON-MEDICAL, (4TH ED 2007)...................... 9

HALSBURY’S LAWS OF ENGLAND, 4TH ED. VOL. 11, PARA 42, P.34........................................... 6

GAUR, KD, CRIMINAL LAW: CASES AND MATERIALS, (6TH ED. 2009) .................................... 8

HILL, MCGRAW, CRIMINAL INVESTIGATION, (4TH ED. 2004) .................................................. 9

RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 33RD ED. (2011) ............................... 9

RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE, 22ND ED. (2006) .................................. 8

SHARMA, B.R., FORENSIC SCIENCE IN CRIMINAL INVESTIGATION & TRIALS, (4TH ED. 2003) ... 8

SARKAR, LAW OF EVIDENCE, (13TH ED,1990). ..................................................................... 10

I, III, IV NELSON R. A. INDIAN PENAL CODE, 10TH ED. (2008) ............................................... 9

II, MITRA, B.B., CODE OF CRIMINAL PROCEDURE, 1973 (20TH ED. 2006) ................................ 7

III, SARVARIA, SK, INDIAN PENAL CODE, (10TH ED. 2008) ..................................................... 9

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STATEMENT OF JURISDICTION

S.C. No. 246 of 2021

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with

Section 209 of the Code of Criminal Procedure, 1973.

Section 177:

‘177. Ordinary place of inquiry and trial-

Every offence shall ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.’

Read with Section 209:

‘209. Commitment of case to Court of Session when offence is triable exclusively by it-

When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively

by the Court of Session, he shall-

a) commit the case to the Court of Session;

b) subject to the provisions of this Code relating to bail, remand the accused to custody

during, and until the conclusion of, the trial;

c) send to that Court the record of the case and the documents and articles, if any, which

are to be produced in evidence;

d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

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STATEMENT OF FACTS

1. In October 2019, Ravi arranged for a protest against the arrest of Kedar Tosi for sedition. The

chain of events that transpired the controversy are:

2. Kedar Tosi, a 22-year-old fiery leader, had allegedly advised a youth from the Community to

kill policemen rather than commit suicide. Many students belonging to the Tosi community at

Ramaiyah College supported Ravi. Tanvi and Nidhi were also present in these protests.

Students belonging to other groups opposed the protest and there was a clash. Thus Police

was brought in to bring the situation under control.

3. After this Tanvi and Nidhi were looked down upon and were jeered. Ravi and Mukul

escorted them to the bus stop after they complained about two boys, Danish and John, who

teased them regularly. Later, a police Inspector named Mr. Anant Sharma accosts Ravi and

Mukul and threatens them. Then Ravi and Mukul dug up details of Mr. Anant Sharma and

found that he was close to the ruling party and had connections with the local goons.

4. Ravi discussed with his friend Rohit who is a local leader of the political party, to which the

Union is affiliated. Rohit got angry and in a fit of rage, said to end the life of the Inspector.

Ravi and Mukul also browsed some provisions regarding legal protection under self-defence.

5. On 7th April 2020 Danish and John came again and started teasing the girls near bus stop.

Ravi and Mukul started pelting stones at the bikers. The people standing at the bus stop

started running in panic. Suddenly the inspector comes from behind and slaps Ravi. Then the

inspector puts his hand on his belt showing the gun holster. Mukul shouted “he is going to

shoot you, quickly escape”. Ravi in a fit of rage runs and takes a rod that was lying down in

the auto garage next to the bus stop and throws it at the inspector. The inspector gets hit on

the head and falls awkwardly on the pavement and gets hit on the head again by the stump of

a tree. The case is committed to the Court of Sessions in Malakpur, Xenon.

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STATEMENT OF CHARGES

CHARGE- 1

Ravi Tosi has been charged under Sec. 186 and 304 r/w Sec. 34 of the Hindia Penal Code,

1860 for the crime of Culpable Homicide not amounting to Murder.

CHARGE- 2

Mukul Tosi has been charged under Sec. 186, 304 and 109 r/w Sec. 34 of the Hindia Penal

Code, 1860 for the crime of Culpable Homicide not amounting to Murder and Abetment.

CHARGE- 3

Ravi Tosi has been charged under Sec. 304 and 109 r/w Sec. 34 of the Hindia Penal Code,

1860 for the crime of Culpable Homicide not amounting Murder and Abetment.

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SUMMARY OF ARGGUMENTS

ISSUE 1

WHETHER THE ACCUSED IS GUILTY OF MURDER?

It is humbly submitted before the Hon’ble court that the accused Ravi Tosi and co-accused

Mukul Tosi and Rohit had the common intention of killing the deceased, Anant Sharma who

was a public servant. When the accused got the opportunity he killed Anant Sharma with the

intention and knowledge of causing such bodily injury which would result in his death. He

used a metal rod to cause that injury which resulted in a brain haemorrhage to the deceased.

They all should be punishable for culpable homicide not amounting to murder under S.304 of

the Indian penal code.

ISSUE 2

WHETHER THE CO-ACCUSED AIDED THE ACCUSED TO ABET THE MURDER

OR NOT?

It is humbly submitted that both the co-accused instigated the accused to do the act by saying

various words to him and also intentionally aided him in doing so and thus committed the

offence of abetment. Abetting includes aiding, counselling, procuring or encouraging

someone to do the act under S.107 of IPC. The three accused concerted together and

conspired to kill Anant Sharma, instigated Ravi to do the act and also had the common

intention of killing him. Thus all the elements of abetment being satisfied all the accused are

to be held liable for the offence of abetment.

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ISSUE 3

WHETHER THE ACCUSED AND CO-ACCUSED OBSTRUCTED THE PUBLIC

SERVANT WHILE HE WAS DISCHARGING HI LAWFUL DUTIES?

It is humbly submitted that Ravi and Mukul obstructed Anant Sharma, a public servant while

he came to stop them from creating public nuisance and were pelting stones over the

complainant. Ravi even killed him while he was obstructing him. Mukul and Ravi used

physical violence and fought with Anant Sharma. He was discharging his lawful duty which

was justifiable by law by stopping the nuisance they were doing. Ravi and Mukul stopped

Anant Sharma from discharging his duty and obstructed him. They knew he was a public

servant, that fact was not concealed by them then too they obstructed him and thus they

should be held liable under Sec. 186 of IPC.

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ARGUMENTS ADVANCED

1. THAT THE ACCUSED IS GUILTY OF CULPABLE HOMICIDE UNDER

SECTION 304 OF IPC

It is humbly submitted before the Hon’ble court that in the present case the accused is

charged with culpable homicide not amounting to murder under section 304 of IPC. Section

299 of IPC defines culpable homicide as “whoever causes death while doing an act with the

intention of causing death, or with the intention of causing such bodily injury as is likely to

cause death, or with the knowledge that he is likely by such act to cause death, commits the

offence of culpable homicide. 1Under section 299 of the Indian Penal Code, homicide

becomes culpable when a human being terminates the life of another in blameworthy

manner.2The present matter lies under unlawful homicide as it is a causing of death by doing

an act with the intention and knowledge of causing such bodily injury as is likely to cause

death. This is one of the elements through which culpability is set to be established, without

these elements, an act though it may be by its nature criminal and may occasion death will

not amount to offence of culpable homicide. 3

Intention as the ingredient of section 299 postulate, the existence of a positive mental attitude

and the mental condition is the special mens rea necessary for the offence.4 Every act is

followed by consequences, thus the consequence necessary to constitute the offence of

culpable homicide is death. By “intention” it is meant that the expectation of the

1
HALSBURY’S LAWS OF ENGLAND , 4TH ED., VOL. II, PARA 1151, P. 613.
2
KENNY ON OUTLINES OF CRIMINAL LAW, 19TH ED., PARA 79, PP.131-132.
3
Rahee,(1866) Unrep Cr C 6.
4
Jayaraj v. State of T.N. A.I.R 1976 S.C. 1519: (1976) 2 S.C.C. 788: 1976 CrLJ 1186 following Anda v. State of

Rajasthan A.I.R 1966 S.C. 148: 1966 CrLJ 171.

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consequences in question and intention doesn’t therefore necessarily involve premeditation,

or thing out killing beforehand. A man accepts the natural consequences of his acts and

therefore in law is presumed to intend them. 5An act is set to cause death when death results

either from the act directly or results from some consequences necessarily or naturally

flowing from such act and reasonably contemplated as its result.6

In the present case there were two injuries inflicted upon the head of the victim which

resulted in brain haemorrhage and hence in his death, one injury being inflicted by the

accused with the metal rod and the other by the victim falling at the stump of the tree. The

accused must be held liable because he intended and knew that his act of throwing the metal

rod on the head of the victim would amount to such bodily injury which would result in his

death. Death occurs when brain dies completely. 7

Words used in section 299 “that bodily injury sufficient in the ordinary course of nature to

cause death” indicate that death is most probable result of the injury. 8 In a case accused

stabbed deceased with a gupti without any intention to cause death was held that it could be

inferred that the accused was having knowledge that by causing injury by a gupti life of a

person may come to an end, hence it was considered as a case of culpable homicide . 9 Where

bodily injury sufficient to cause death is actually caused it is immaterial to go into the

question as to whether the accused had intention to cause death or knowledge that the act will

5
Nirbhai Singh, 1972 CrLJ 1474 (MP).
6
D. Yohannan v. State of Kerala, A.I.R 1958 Ker 207:1958 Cr LJ 1021.
7
Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 S.C.C. 454: A.I.R 2011 S.C. 1290.
8
Daya Nand v. State of Haryana, 2008 Cr LJ 2975 (S.C.): A.I.R 2008 S.C. 1823 and Radhey v. State of

Chhattisgarh, 2008 CrLJ 3520 (S.C.): A.I.R 2008 S.C. 2878.

9
Lakhan v. State, 2008 CrLJ 1194 (MP). Ganraj v. State, 2008 Cr LJ 253 (Raj).

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cause death and thus it is regulated by the first part of section 304 of IPC. 10In the present case

the accused is charged under the S.304 of I.P.C because the act of the accused falls under

second provision of Exception 2 to S.300 of I.P.C. In Harendra Nath Mandal v. State of

Bihar11, it was held that an accused is guilty and punished under S.304 when a death is

caused by the assailant under any of the circumstances mentioned in exception 2 of S.300.

The Prosecution humbly contends that mens rea is established [1.1]

1.1. MENS REA IS ESTABLISHED

Intention is purpose or design with which an act is done it is the fair knowledge of the act

coupled with the desire of it. An act is intentional so far as it exists in idea before it exists in

the fact; knowledge is awareness of the consequences of act.12 Accused when inflict incised

wounds with a spear on the head of the deceased, it was held that knowledge that the injury

he was inflicting was likely to cause death must be imputed to the accused and it is culpable

homicide, the offence committed falling under part 1 of Section 304 of IPC.13

In a case the accused inflicted injuries on vital part of the deceased which were found to be

sufficient in the ordinary course of nature to cause death, it was proved that he inflicted the

injuries with the knowledge that with these injuries the victim was likely to die, it was held

that this case would fall under section 299 and will be punished under section 304 part 1. 14It

10
PrabhatiLal v. State, 2008 CrLJ 859 (Raj).
11
1993 1 Crimes 984 (S.C.).
12
Keshub Mahindra v. State of M.P., 1996 (3) Crimes 288 (S.C.): (1996) 6 S.C.C. 129: 1996 S.C.C. (Cri) 1124.
13
Inder Singh v. State of Pepsu, A.I.R 1955 S.C. 439: 1955 Cr LJ 1014.
14
Subran v. State of Kerala, 1993 Cr LJ 1387 (S.C.): 1993 A.I.R S.C.W (1014): (1993) 3 S.C.C. 32: (1993) 2

Crimes 15.

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was held in the case of Jaspal Singh v. State of Punjab15 the location of injury coupled with

the velocity of blow shown by the depth of injury shows that the intention was to cause death.

According to medical evidence it was this injury which proved fatal. When a person is

causing an injury on such a vital part the intention to kill can certainly be attributed to him. 16

The law books17, regards intention to the natural result of a man’s act and not to the condition

of his mind, so when a normal man does an act, he should be credited with the intention of

doing that which is inevitable consequences of his acts. In the instant case mens rea is

established by the way of witness statements [1.1.1], Forensic Report [1.1.2].

1.1.1 Witness Statements

It is humbly submitted before this Hon’ble Court that the circumstantial evidence in the

instant matter shows that within all human probability, the act must have been done by the

accused. On April 7, 2020 Jatin (PW 6), the garage owner exactly don’t remember what

happened but he saw Ravi and his friend fighting with tall guy. They were struggling with

this guy. Ravi ran towards his shop and picked up a rod hit it on the ground almost taking his

feet away and threw it at the tall guy. The rod hit his head and he fell with a thud to the

ground and died instantly. He just didn’t move. This shows that Ravi had an intention to

harm police inspector, because he had the chance to escape from the place but in spite of

this, he went to garage and picked up the iron rod to hit the inspector.

15
Jaspal Singh v. State of Punjab, A.I.R 1986 S.C. 683: 1986 Cr LJ 488: (1986) I Crimes 435: (1986) 2 S.C.C.

100.
16
Chahat Khan v. State of Haryana A.I.R 1972 S.C. 2574: 1972 S.C.C. (Cri) 558: 1972 UJ (S.C.) 273.
17
R.RATANLAL AND K.T.DHIRAJLAL, (32ND ED,2010).

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1.1.2 Forensics

The post mortem report becomes important in cases where the cause of death is to be

established and is a matter of controversy. Moreover, it is not possible for the Prosecution in

to explain each and every injury suffered by the witnesses. However, for the sake of

convenience, the Prosecution feels obliged to assist this Hon’ble Court in understanding the

intricacies of the post mortem report.

 Examination of the Skull and Brain:

When the skull and brain were examined it was observed that, a blunt force was used on

skull which is the result of an object travelling at a very high speed causing the damage.

When hit hard on the head the brain shifted inside the skull and knocked against the bony

surface of the skull. Due to this the victim suffered internal bleeding which caused

intracranial haemorrhage and leads to victim’s death.

2. THAT THE ACCUSED IS GUILTY UNDER SECTION 109 OF IPC

It is humbly submitted before the Hon’ble court that the co-accused Mukul and Ravi have

facilitated the commission of the death of Anant Sharma and thereby charged with the

offence of abetment under section 109 of Indian penal code as they have instigated,

intentionally aided and conspired for the commission of the act. The framers of Indian penal

code observe that the reasonable course, in our opinion is to consider speaking as an act and

to treat accused as guilty of voluntary culpable homicide if his speaking has caused death of

the deceased whether, his words operated circuitously or directly. In the present case Mukul

and Rohit voluntarily contributed to the culpable homicide of Anant Sharma by speaking the

word which instigated Ravi to do the act which resulted in the death of the deceased. All the

accused in this matter should be punished under section 304,109 r/w 34 of IPC for causing

the death of Anant Sharma, a public servant who was discharging his lawful duty when the

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crime took place. In Corpus Juris Secundum18, the meaning of the word abet has been

defined as meaning to aid; to assist or to give aid; to command, or to counsel; to encourage,

to induce, or to assist another onto commit. In order to bring a person abetting the doing of a

thing, under any of the clauses enumerated under section 107, it is not only necessary to

prove that the person who has abetted has taken part in the steps of the transaction but also in

some way or the other, he has been connected with those step of the transaction which are

criminal. 19

Section 107 of the IPC, which contains the definition of abetment, has three clauses, and if

an act of a person falls within the purview of any of them, it would amount to abetment. A

person abets the doing of a word thing who intentionally aids, by any act or illegal omission,

the doing of that thing. For the purposes of the first two clauses of this section, it is

immaterial whether the person instigated commits the offence or not, or the persons

conspiring together actually carryout the object of the conspiracy. 20Abetment is constituted

by: (1) instigating a person to commit an offence; or (2) engaging in a conspiracy to commit

it; (3) intentionally aiding a person to commit it. If an accused is alleged to have been an

accomplice to the principal offence, the charge may alleged he aided, he abetted, or

counselled, and he will be convicted if he is proved to have participated in one or more of

these four ways.21

18
See Corpus Juris Secundum, Vol. 1, p. 306.
19
Katar Singh v. State of Punjab (1994) 3 S.C.C. 569: 1994 Cr LJ 3139: (1994) 1 S.C.C. (Cri) 899.
20
Faguna Kanta v. The State of Assam, 1959 Cr LJ 917 (S.C.) : A.I.R 1959 S.C.673.
21
Re Smith, (1858) 3 H&N 277 : Ferguson v. Weaving, (1951) 1 KB 814 : (1951) 1 ALL ER 421.

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2.1. MUKUL INSTIGATED RAVI TO DO THE ACT AND HENCE ARE PART OF
THE CRIME

It is well known that the act of abetment may take place in one of these three ways; (1)

instigation, (2) conspiracy, (3) intentional aid. 22 Instigation must have reference to the thing

that was done. Abetment implies a certain degree of activity in the abettor. An accused can be

charged with abetment not only if he instigates any person to do a criminal act or

intentionally aids by any act or illegal omission for the doing of the thing or engages

somebody with a purpose to do illegal act.23 These things are essential ingredients of section

107 and are all found in the present case. Abetment may consist of passive assistance. 24In a

case the presence of accused either with bhala or with spear on the scene of occurrence of

marpit and then participation in the marpit was proved even if they did not actually apply

their weapons, they were held to be vicariously responsible for the injuries caused to the

complaint party. 25

Analysing the law, Cross and Jones puts in that normally, an act of assistance or

encouragement is required. Thus, mere abstention from preventing an offence generally is not

enough but if A has a right control over Band deliberately fails to prevent B from committing

an offence, his omission will constitute aiding or abetting, if it amounts to a positive

encouragement to be to commit the offence 26. In the present Mukul being present on the

crime scene did not prevent Ravi from hitting the police inspector with the metal rod and thus

has constituted abetment. The aforesaid exposition of law postulates the existence of one who

22
Malan v. State of Maharashtra A.I.R 1960 Bom 393 : 1960 Cr LJ 1189 : ILR 1958 Bom 700.
23
BanwariLal v. State of Haryana 1979 Cl R (P&H) 233 (235).
24
Tuck v. Robson, (1970) 1 All ER 1171.
25
Baxanto v. State of U.P. A.I.R 1965 All 120 : (1965) J CrLJ 267.
26
CROSS & JONES, INTRODUCTION TO CRIMINAL LAW, 9TH EDN., P.389., PARA 19.8.

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did perpetrate the offence as laid down by Cross and Jones normally it is clear who is the

perpetrator; he is the one with relevant mens rea, for example the one who fires the fatal shot

in murder. Two or more people may also be joint perpetrators where each with the relevant

mens rea does distinct acts which constitute a sufficient act for the actus reas offence. The

offence of abetment by instigation depends upon the intention of the person who abets and

not upon the act which is done by the person who has abetted.27

2.2. ACTIVE STIMULATION IS ESSENTIAL FOR CAUSING ABETMENT

A person is said to “instigate” another to an act, when he actively suggests of stimulates him

to the act by any means of language, direct or indirect, whether it takes the form of express,

solicitation, or of hints, insinuation or encouragement.28 It is not necessary that express and

direct words should be used to indicate what exactly should be done by the persons to whom

directions are given.29 Instigation is to “goad”, urge forward, provoke, incite, or encourage

doing an “act”. To satisfy the requirements of instigation, though it is not necessary that

actual words must be used to that effect or what constitutes “instigation” must necessarily and

specifically be suggestive of the consequences. Yet a reasonable certainty to incite the

consequences must be capable of being spelt out.30 Instigate means the active role played by a

person with a view to stimulate another person to do the thing in order to hold a person guilty

27
State of Punjab v. Iqbal Singh, A.I.R 1991 S.C. 1532 Surender v. State of Haryana (2006) 12 S.C.C. 375

KishoriLalv. State of M.P., A.I.R 2007 S.C. 2457 and Sonti Rama Krishna v. Sonti Shanti Sree, A.I.R 2009 S.C.

923.
28
Amiruddin, (1922) 24 Bom LR 534, 542.
29
Baby John v. State, 1953 CrLJ 1273 ; A.I.R 1953 Trav-co 251 : 1952 Ker LT 737.
30
ParimalChaterjee,(1932) 60 Cal 327.

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of abetting, it must be established that he had intentionally done something which amounted

to instigating another to do a thing.31

Instigation necessarily connotes come active suggestion or support of stimulation to the

commission of the act itself. Advice amounts to the instigation only if it was meant actively

to suggest or stimulate the commission of an offence.32 In a case while one person was beaten

by another, the accused, who was standing by, expressed his approval to the conduct of the

assailant and the victim would be given sound beating. It was found that blows were inflicted

after the accused’s remarks. It was held that the accused stimulated the commission of the

offence and, therefore, was guilty for abetment. Instigation necessarily connotes some active

suggestion or support or stimulation to the commission of the act itself. 33

A person is said to instigate another to an act, when he actively suggests or stimulates him to

the act by any means or language, direct or indirect. The offence is complete as soon as the

abettor has incited another to commit a crime, whether the latter consents or not or whether,

having consented, he commits the crime or not. It depends upon the intention of the person

who abets and not upon the act which is actually done by the person whom he abets. 34 Where,

of several persons constituting an unlawful assembly, some only were armed with sticks and

A, one of them was not so armed but picked up a stick and used it, B who gave a general

order to beat, was held guilty of abetting the assault made by them. 35 It is not necessary that

the abettor should concert the offence with the person who commits it. It is sufficient if he

31
RajibNeog v. State of Assam, 2011 CrLJ 399 (Gau).
32
RaghunathDass, (1920) 5 PLJ 129.
33
Nazir Ahmad v. Emperor, A.I.R 1927 All 730 : 28 CrLJ 313.
34
Ramabatar Agarwalla v. State, 1983 CrLJ 122 (ori) : (1982) 54 Cut LT 345.
35
Queen v. Rasookoollah, (1869) 12 WR (Cr) 51.

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engages in the conspiracy in the pursuance of which the offence is committed. 36 Where

parties concert together and have a common object, the act of fun of the parties, done in

furtherance of the common object and in pursuance of the concerted plan, is the act of all. 37

Doing something with knowledge so as to facilitate in to commit the crime of otherwise

would constitute abetment.38 A person abets while aiding, when by act done either prior to, or

at the time the commission of the act, he intends to facilities, and does in fact facilitate the

commission therefore. Intentional aiding of the offence in covered by the third clause

mentioned in section107 Indian penal code. 39 Intention to aid the commission of offence is

the gist of offence of abetment by aid. 40 A person abets by aiding, when by the commission

of an act, he intends to facilitate and thus facilitate the commission thereof. 41 The intention to

aid the commission of crime is gist of offence by of abetment by aid. In order to constitute

abetment, the abettor must be shown to have “intentionally” aided to commission of the

crime. Every abetment must, of course, precede the commission of the offence committed.

There is, however a difference between an abetment which is done at the time of principal

offence is committed or, so to say, on the spur of the moment and one, that is done prior to,

and independently of, the commission of offence.

36
Expln. 5 to Section 108; Kali Munda (1901) 28 Cal 797.
37
The Queen v. Ameer Khan , (1871) 17 WR (Cr) 15.
38
State of M.P. v. Mukesh (2006) 13 S.C.C. 197 : (2007) 2 S.C.C. (Cn)680.
39
Om Prakash v. State of Haryana 2015 CrLJ 586: (2015) 2 S.C.C. 84.
40
Trilok Chand v. State of Delhi, A.I.R 1977 S.C. 666: 1977 Cr LJ 254: (1975) 4 S.C.C. 761.
41
Faguna Kanta Nath v. State of Assam, A.I.R 1959 S.C. 673: 1959 CrLJ 917.

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2.3. THAT RAVI AND MUKUL HAD COMMON INTENTION TO CAUSE DEATH
OF THE DECEASED

The criminal act mentioned in Indian penal code 186042is the result of the concerted action of

more than one person. Where the said result was reached in furtherance of the common

intention, each person is liable for the result as if he has done it himself. 43It is enough if it is

shown that they shared a common intention to commit the offence and in furtherance thereof,

each one played his assigned role by doing separate acts, similar or diverse44. For applying

the said provision, it is not necessary to show some overt act on the part of the accused for the

provision is intended to meet a case in which it may be difficult to distinguish between acts of

individual members of a part who act in furtherance of the common intention of all or to

prove exactly what part was taken by each of them45 where it is established that the criminal

act has been done by one of the accused persons in furtherance of the common intention, a

liability may be imposed on anyone of the persons in the same manner as if the acts were

done by him alone46 and each person will be alleged to have had committed the entire

act47.The common intention must be to commit the particular crime although the actual crime

may be committed by any one of those sharing the common intention and acting in

furtherance of the same.48

42
Indian Penal Code 1860 S.34.
43
Shankarlal Kacharabhai v. State of Gujarat A.I.R 1965 S.C. 1260.
44
Nandu Rastogi v. State of Bihar (2002) 8 S.C.C. 9.
45
Hari Ram v. State of Uttar Pradesh (2004) 8 S.C.C. 146.
46
State of Uttar Pradesh v. Iftikhar Khan A.I.R 1973 S.C. 863.
47
Matiullah Sheikh v. State of West Bengal A.I.R 1965 S.C. 132, Babu Ram v State of Uttar Pradesh A.I.R 2002

S.C.2815.
48
Hardev Singh v. State of Punjab A.I.R 1975 S.C. 179.

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Common intention is a state of mind of an accused which may be inferred objectively from

his conduct displayed in the course of the commission of the crime as also prior and

subsequent attendant circumstances. The subjective element in common intention, therefore,

must be proved by an objective test. It is only then that one accused may be made vicariously

liable for the acts and deeds of the other co-accused.49 Direct proof for common intention will

generally be difficult to obtain. 50 Therefore, common intention may only be inferred from the

proven facts of the case and the proven circumstances for which the prosecution has to

establish by evidence, whether direct or circumstantial, that there was a plan or meeting of

minds of all the accused to commit the offence for which they are charged with the aid of the

provision of the Indian penal code 1860, be it prearranged or on the spur of the moment, but

it must necessarily be before the commission of the crime. 51

The question of a common intention is a matter of fact in each case and has to be proved as a

necessary inference52from the facts53and circumstances of the case, acts and conduct of

parties54including conduct subsequent to the incident 55, other evidence given by prosecution

witnesses, court witness, defence witness disclosing the existence of named or unnamed

persons other than those charged or deposed to by prosecution witnesses 56, nature of the

weapons used, manner of injuries inflicted or any other incriminating facts.57 The inference

49
Rishideo Pande v. State of Uttar Pradesh (1955) Cr LJ 873.
50
State of Uttar Pradesh v. Iftikhar Khan A.I.R 1973 S.C. 863.
51
Hari Ram v. State of Uttar Pradesh (2004) 8 S.C.C. 146.
52
Mohan Singh v. State of Punjab A.I.R 1963 S.C. 174, see also Mahbub Shah v Emperor A.I.R 1945 PC 118.
53
Baleshwar Rai v. State of Bihar (1963) 2 S.C.R 433.
54
BN Srikantaiah v. State of Mysore A.I.R 1958 S.C. 672.
55
Hari Om v. State of Uttar Pradesh (1993) Supp 2 S.C.C. 1.
56
Krishna Govind Patil v. State of Maharashtra A.I.R 1963 S.C. 1413.
57
RamashishYadav v. State of Bihar A.I.R 1999 S.C. 3830.

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may be gathered from the manner in which the accused arrived at the scene and mounted the

attack, the determination and concert with which the attack was made. The crucial test is that

such plan must precede the act constituting the offence.

In the present case there was proper premeditation done for the purpose of constituting the

death of the police inspector; all the accused met and shared the intention to kill the deceased,

they searched for him on the internet as well as for the provisions regarding self-defence so

that they would know how to get away with the crime. Common intention must be anterior to

the commission of the offence 58 and necessarily implies a prearranged plan. 59 To constitute

common intention, it is necessary that the intention of each of the accused is known to the

rest and shared by them all. 60

In cases involving murder, one must look for a common intention, that is to say, some prior

concert and what that common intention is. It must next be seen whether the accused

possessed the knowledge that the injuries they were intending to cause were sufficient in the

ordinary course of nature to cause death, and if the circumstances are established and death is

caused by the intended injuries which are also sufficient in the ordinary course of nature to

result in death, each of the accused is guilty of committing murder. 61

3. THAT THE ACCUSED OBSTRUCTED THE PUBLIC SERVANT WHILE HE

WAS DISCHARGING HIS LAWFUL DUTIES

It is humbly submitted before the Hon’ble court that the accused and the co-accused in the

present matter obstructed the public servant from discharging his duties and thus are

58
Joginder Singh v State of Haryana A.I.R 1994 S.C. 461.
59
Pandurang v. State of Hyderabad A.I.R 1955 S.C. 216.
60
Ankeri v. State of Rajasthan A.I.R 1994 S.C. 842, Shangara v. State of Punjab (1994) Cr LJ 1098 (S.C.).
61
Anda v. State of Rajasthan A.I.R 1966 S.C. 148, Anda v. State of Rajasthan (1966) Cr LJ 171.

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punishable under s.186 of IPC. This is a general section and provides for punishment for the

offence of “voluntarily” obstructing a public servant in the discharge of his public

functions. 62 Ingredients of the offence under this section are: (a) the obstruction to the public

servant was done by the accused voluntarily, and (b) The obstruction was done in the

discharge of the public functions. The use of the word “voluntarily” indicates that the

legislature contemplated the commission of some overt act of obstruction and did not intend

to render penal more passive conduct,63 In other words “obstruction” denotes some overt act

in the nature of violence or show of violence. 64 It suffices if there is either a show of force or

a threat of force, or preventing the execution of any act by a public servant. 65It must be

shown that the obstruction or resistance was offered to a public servant in the discharge of his

duties or public functions as authorized by law. 66The accused in Santosh Kumar Jain v. State,

voluntarily obstructed a public servant at a time when he was acting in the course of his

official duty, but it was contended that the officers had exceeded his official duty and that the

act which was obstructed was not among his authorized functions and. However, on evidence

in the case it was held that the accused had in fact obstructed the officer in carrying out the

legal functions attached to his office and was accordingly convicted under this section.

62
Santosh Kumar Jain v. State, A.I.R 1951 S.C. 201.
63
Q.E. v. Sommanna, 1827 ILR 15 Mdr. 221.
64
Phudki v. Stae of Uttar Pradesh, A.I.R 1955 All 104.
65
Babulal, 1956 Bom LR 1021.
66
Odwil Devaki Amma v. State of Kerala, 1982 Cr LJ 11 Ker (NOC).

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3.1. PUBLIC SERVANT ACTING IN GOOD FAITH AND UNDER THE COLOUR
OF HIS OFFICE

If the public servant is acting in good faith under colour of his office there is no right of

private defence against such act.67 Section 186 contemplates obstruction of a public servant in

the discharge of his public duty.68 Section 186 contemplates obstruction of a public servant in

the discharge of his public duty. Every police-officer shall, for all purposes in this act

contained, be considered to be always on duty, and may at any time be employed as a police-

officer in any part of the general police-district.69

It shall be the duty of every police-officer promptly to obey and execute all orders and to

communicate intelligence affecting the public peace; to prevent the commission of offences

and public nuisances; to detect and bring offenders to justice and to apprehend all persons

whom he is legally authorized to apprehend; and it shall be lawful for every police officer, for

any of the purposes mentioned in this section, to stop a person by creating public nuisance 70

which was exactly what police inspector Anant Sharma was doing at the time when the

accused hit him and caused his death.

3.2. VOLUNTARY OBSTRUCTION TO A PUBLIC SERVANT

Whoever voluntarily obstructs any public servant in the discharge of his public functions

shall be punished with imprisonment of either description for a term which may extend to

three months, or with fine which may extend to Rs. 500, or with both.71A person seriously

67
Poomalai Udayan, (1898) 21 Mad 296; Pukot Kotu, (1896) 19 Mad 349.
68
Bhaga Mana, (1927) 30 Bom LR 1124.
69
The Police Act, 1861.
70
State of Karnataka v. Jinappa Payappa Kudachi (1994) Supp 1 S.C.C. 178, (1994) S.C.C. (Cr) 330; Mubbi v.

State of Madhya Pradesh (1999) S.C.C. (Cr) 1314.

71
Indian Penal Code, 1860 S.186.

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obstructing, insulting and jostling a process-server in the execution of his duty is guilty of the

offence under the above stated provision.72 Where public officer acts properly in carrying out

orders which are not obviously or patently illegal or upon the face of them not open to

objection, any resistance to the same is an offence under this provision. 73 The prosecution

must show that a public servant was discharging public duties imposed upon him by law

while prosecuting a person for the obstruction of a public servant in the discharge of his

public functions.74 To constitute “obstruction”, it is not necessary that there must be actual

criminal force. Show or threat of force or any act preventing execution of the process of civil

court is sufficient.75 It is not open to a party to obstruct a public servant in the discharge of his

duties even if the public servant has been told by the party that he must not act as such. 76

72
Jatto v. Emperor A.I.R 1915 Lah 456.
73
Birdhi Chand Jaipuria v. Darbari Jayaswal A.I.R 1932 Pat 276.
74
Jamnadas Tharoomal v. Emperor A.I.R 1940 Sind 42.
75
State v. B G Misar A.I.R 1957 Bom 10.
76
S.Ramlah In Re A.I.R 1951 Mad 773.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon’ble Court be pleased to:

I. Convict, Ravi Tosi for Culpable Homicide not amounting to Murder of a police

officer on duty charged under Section 186, 304 read with Section 34 of the Indian

Penal Code, 1860.

II. Convict, Mukul Tosi for Culpable Homicide not amounting to Murder of a police

officer on duty charged under Section186, 109, 304 read with Section 34 of the

Indian Penal Code, 1860.

III. Convict, Rohit for Culpable Homicide not amounting to Murder of a police officer

on duty charged under Section109, 304 read with Section 34 of the Indian Penal

Code, 1860.

AND/OR

And pass any other order, direction or relief that the court may deem fit in the best

interests of justice, fairness, equity and good conscience.

For this act of kindness, the petitioners shall duty bound forever pray.

Place:

S/d __________

PUBLIC PROSECUTOR

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