Whether the Appellants can be prosecuted under section 302 read with

Section 34 of the INDIAN PENAL CODE. 1860?

It is humbly submitted by the counsel on the behalf of the respondents before the hon’ble
sessions court that the respondents could not be charged under section 302 read with section 34
of the Indian Penal Code. Section 300 of IPC gives the definition of murder and enumerates
the ingredients of the offence.

300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act
by which the death is caused is done with the intention of causing death,

(Secondly) —If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused.

In order to bring the case under section 300 of ipc the intention of the offender to cause such
bodily harm thtat it results into the death of the person needs to proved.
Whereas the act of the respondent nowhere shows that his intention was to kill the deceased.

The facts of the case shows that the act done by the respondent was due to sudden and grave
provocation.

The case goes under Exception 1 and Exception 4 to Section 300 IPC

Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if

the offender, whilst deprived of the power of self-control by grave and sudden provocation,
causes the death of the person who gave the provocation or causes the death of any other
person by mistake or accident.

Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel and without the offender having
taken undue advantage or acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which party offers the provocation or commits the
first assault.
Section 34 in The Indian Penal Code
[34. Acts done by several persons in furtherance of common intention.—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.]

To bring out the case with Sec.34 the basic ingredient i.e Common Intention Is necessary.

1. Common intention
Common intention implies a pre-arranged plan or prior meeting of minds. Mere presence
together is not sufficient to hold that both the accused shared common intention. The criminal act
must be done for the purpose of executing common intention. If the act done actually is not joint
then the common intention cannot be implied.

Common intention is a question of fact. It can be inferred from the facts and circumstances from
the whole conduct of all the persons. It should not be inferred from an individual act of one of
them.

Whether it was an act of private defense or not?

It is humbly submitted by the council for the before the honorable session court that it was an act
of private defense
In the present case the allegations made against the defendants is of murder and they have been
charged under section 302 of the Indian Penal Code.
As per the facts of the case one of the boys threw stone on the defendants and in the act
of the private defense the accused attacked the deceased with a pocket knife.

Section 96

Nothing is an offence, which is done in the exercise of the right of private defence

The right of private defence, as the name suggests, is an act of defence and not of an offence.

The right of private defence will completely absolve a persons from all guilt even when he
causes the death of another person in the following situations, i.e

 If the deceased was the actual assailant, and

 If the offence committed by the deceased which occasioned the cause of the exercise of
the right of private defence of body and property falls within anyone of the six or four
categories enumerated in Sections 100 and 103 of the penal code

Kamparsare vs Putappa:

Where a boy in a street was raising a cloud of dust and a passer-by therefore chased the boy
and beat him, it was held that the passer-by committed no offence. His act was one in exercise
of the right of private defence.
Section 97.Right of private defence of the body and of Property:-

Every person has a right, to defend-

First-His own body, and the body of any other person, against any offence affecting the human
body;

Secondly-The property, whether movable or immovable, of himself or of any other person,

against any act which is an offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal
trespass.

There must be reasonable apprehension of danger that comes from the aggressor in the form of
aggression. This Section divides the right of private defence into two parts, i.e. the first part
deals with the right of private defence of person, and the second part with the right of private
defence of property.

To invoke the plea of right of private defence there must be an offence committed or attempted
to be committed against the person himself exercising such a right, or any other person. The
question of the accrual of the right of the private defence, however, does not depend upon an
injury being caused to the man in question. The right could be exercised if a reasonable
apprehension of causing grievous injury can be established. If the threat to person or
property of the person is real and immediate, he is not required to weigh in a golden scale
the kind of instrument and the force which he exerts on the spur of the moment. The right
of private defence extends not only to the defence of one’s own body and property, as under
the English law, but also extends to defending the body and property of any other person.

Thus under section 97 even a stranger can defend the person or property of another person and
vice versa.
Chotelal vs State:

B was constructing a structure on a land subject to dispute between A and B. A was trying to
demolish the same. B therefore assaulted A with a lathi. It was held that A was responsible for
the crime of waste and B had therefore a right to defend his property.

Nature of Injuries

According to the medical report the deceased died because of the septicemia after the few days
of the attack.

This also concludes that the injury was not to an extent which could have caused the sudden
death of the deceased.

It can be observed that the act done by the defendants was sudden and done in there private
defense and they didn’t had enough time to think upon the nature of injury and harm it can
cause.

Nature of Weapon

Resting on the facts of the case the weapon used here was a pocket knife which is not at all a
brutal weapon.

As per the section 4 of the Arms Act 1956 read with Arms Rule 1962 a person is allowed to
carry any sharp object which do not exceeds the length of 9” and breadth of 2” for the private
defense of his body and body of the others.

It is very much clear that a pocket knife is hardly 2” long and 0.75” broad, and according to the
section 4 is not a brutal weapon.

It is humbly submitted that the act done by the Defendants was just an act done in the private
defense and they did not had any intention to kill the deceased.
Hereby it is most humbly and respectfully submitted to the court that there is enough literature
and co-relative evidence which proves that both nature of injury and nature of the weapon was
was not enough to cause death of Manish.