PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA

IN THE HON’BLE SESSIONS COURT OF LUDHIANA

CASE No._______ of 2019

IN THE MATTER BETWEEN

JAGAT AND ORS.
……………...PROSECUTORS

V.
STATE ………………...DEFENDENT

SUBMITTED TO: SUBMITTED BY:

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MEMORANDUM ON BEHALF OF PROSECUTOR

 TABLE OF CONTENTS

1) LIST OF ABBREVIATIONS...................................................................................................

2) INDEX OF AUTHORITIES.....................................................................................................

3) STATEMENT OF JURISDICTION........................................................................................

4) STATEMENT OF FACTS........................................................................................................

5) ISSUES RAISED.......................................................................................................................

6) SUMMARY OF ARGUMENTS..............................................................................................

7) ARGUMENTS ADVANCED...................................................................................................

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 LIST OF ABBREVIATIONS

IPC Indian Penal Code,1860

& And
Cr. P.C. Criminal Procedure Code
¶ Paragraph
P. Page
V. Versus
AIR All India Reporter
Bom. Bombay
Cal Calcutta
Sec. Section
Art Article
ILR Indian Law Report
Ms. Miss
Hon’ble Honorable
Mad Madras
Ors., Anr. Others
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal

INDEX OF AUTHORITIES
 Cases Cited:
1. India v. Idu Beg ILR ((1881) 3 All 776)
2. In Re: Nidamarti Negaghushanam (Mad HCR 119)
3. Sushil Ansal vs State the Cbi (CRIMINAL APPEAL NO.597 OF 2010)
4. Reaz-Ud-Din Shaikh And Ors. vs Emperor (6 Ind Cas 251)
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5. Ibra Akanda And Ors. vs Emperor (AIR 1944 Cal 339)

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6. Gopal Ansal vs State (CRIMINAL APPEAL NO. 794/2007)

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 7. Emperor vs Shaik Hasan Abdul Karim ( (1944) 46 BOMLR 566)
8. Amulya Kumar Behera vs Nabaghana Behera Alias Nabina (1995 CriLJ 3559, 1995 II
OLR 97)

 Legislations/Statutes:
1. Section 26 of the code of criminal procedure, 1973
2. Section-300 of the Indian Penal Code, 1860.
3. Section 304A of the Indian Penal Code, 1860
4. Section 299, Indian Penal Code1860

 Dictionaries referred:
1.Black Law Dictionary
2.Stroud’s Judicial Dictionary
 Websites:
1. www.scconline.com
2. www.westlaw.com
3. www.jstor.com
4. www.judis.nic.in
5. www.lexisnexus.com

STATEMENT OF JURISDICTION

The petitioner humbly submits to the jurisdiction of this Sessions court of Ludhiana under
Section 26 of the code of criminal procedure, 1973.1
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Courts by which offences are triable. Subject to the other provisions of this Code: -
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(a) any offence under the Indian Penal Code (45 of 1860), may be tried by-

MEMORANDUM ON BEHALF OF PROSECUTOR

All of which is respectfully submitted

STATEMENT OF FACTS

1. Jagat and Sundar were roaming around in the streets without any reason on 31 st
December, 2009 at around 11:30 pm.
2. They were stopped by a police constable Sitaldas who enquired what they were
doing outside at this hour to which Jagat jokingly replied that they were looking
for a place to plant a bomb, so that they could welcome the New Year with a
bang!
3. The constable panicked and backed off a little and he whistled for his other
colleague who came running.

(i) the High Court, or

(ii) the Court of Session, or

(iii) any other Court by which such offence is shown in the First Schedule to be triable;

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by
such Court and when no Court is so mentioned, may be tried by-

(i) the High Court, or

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(ii) any other Court by which such offence is shown in the First Schedule to be triable.
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 4. The constable Sitaldas narrated the whole dialogue to the other police constable
who started frisking both Jagat and Sundar.
5. Both the boys pleaded that they were just joking but constable Nirmaldas carried
on with their search.
6. He found something in the pocket of Jagat and told him to take out what was in
his pocket. Instead of taking the thing out of his pocket, Jagat started running
away from the two constables, who shouted two warning at Jagat and constable
Sitaldas once fired in the air to stop him but ironically the bullet hit a pole and hit
Jagat in the back, who died on the spot. Seeing this rather than helping him out,
both the constables ran away.
7. Constable Sitaldas and Nirmaldas were tried for causing death of Jagat.

ISSUES RAISED

1. WHETHER THE POLICE OFFICER WILL BE LIABLE UNDER SECTION 304A

OR NOT?

2. WHETHER THE STATEMENT MADE BY JAGAT FALLS WITHIN THE AMBIT

OF CRIMINAL INTIMIDATION OR NOT?
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 SUMMARY OF ARGUMENTS

1. WHETHER THE POLICE OFFICER WILL BE LIABLE UNDER SECTION 304A

OR NOT?
It is humbly submitted on behalf of the prosecutor before this Hon’ble sessions court that the
death of Jagat falls within the ambit of Section 304A and hence, the police officer would be
liable on the grounds of culpable homicide.

2. WHETHER THE STATEMENT MADE BY JAGAT FALLS WITHIN THE AMBIT

OF CRIMINAL INTIMIDATION OR NOT?
It is humbly submitted on behalf of the prosecutor before this Hon’ble sessions court that the
statements made by Jagat do not fall within the ambit of criminal intimidation as the
seriousness and tone plays a vital role in criminal intimidation.
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 ARGUMENTS ADVANCED
ISSUE 1. Whether the police officer will be liable under section 304A or not?
It is humbly submitted on behalf of the prosecutor that the death of Jagat falls within the
ambit of. Section 304A of the Indian Penal Code, 1860. As per Section-304A of the Indian
Penal Code, 18602 Causing death by negligence has been defined. The section states:
Whoever causes the death of any person by doing any rash or negligent act not amounting to
culpable homicide, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both. The terms ‘rash’ or ‘negligent’
appearing in Section 304A extracted above have not been defined in the Code. Judicial
pronouncements have all the same given a meaning which has been long accepted as the true
purport of the two expressions appearing in the provisions. One of the earliest of these
pronouncements was in Empress of India v. Idu Beg ILR 3, where Straight J. explained that in
the case of a rash act, the criminality lies in running the risk of doing an act with recklessness
or indifference as to consequences. A similar meaning was given to the term ‘rash’ by the
High Court of Madras in In Re: Nidamarti Negaghushanam4, where the Court held that
culpable rashness meant acting with the consciousness that a mischievous and illegal
consequence may follow, but hoping that it will not. Culpability in the case of rashness arises
out of the person concerned acting despite the consciousness. These meanings given to the
expression ‘rash’, have broadly met the approval of this Court also as is evident from a
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Section-304A of the Indian Penal Code, 1860.
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3
India v. Idu Beg ILR ((1881) 3 All 776)
4
In Re: Nidamarti Negaghushanam (Mad HCR 119)

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conspectus of decisions delivered from time to time, to which we shall presently advert. 5 In
the case of ‘negligence’ the Courts have favoured a meaning which implies a gross and
culpable neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual which having regard to all the
circumstances out of which the charge arises, it may be the imperative duty of the accused to
have adopted. Negligence has been understood to be an omission to do something which a
reasonable man guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable person would
not do. Unlike rashness, where the imputability arises from acting despite the consciousness,
negligence implies acting without such consciousness, but in circumstances which show that
the actor has not exercised the caution incumbent upon him. The imputability in the case of
negligence arises from the neglect of the civil duty of circumspection. 6 The expression
‘negligence’ has also not been defined in the Penal Code, but, that has not deterred the Courts
from giving what has been widely acknowledged as a reasonably acceptable meaning to the
term. We may before referring to the judicial pronouncements on the subject refer to the
dictionary meaning of the term ‘negligence’.

Black’s Law Dictionary defines negligence as under:

“The failure to exercise the standard of care that a reasonably prudent person would have
exercised in a similar situation; any conduct that falls below the legal standard established to
protect others against unreasonable risk of harm, except for conduct that is intentionally,
wantonly, or willfully disregardful of other’s rights.”7
As per the cases cited above and the definition of negligence as provided by the Black’s Law
Dictionary it can be made clear that the actions of constable Sitaldas were negligent and not
in consonance to the reasonable conduct of a police constable. The police are supposed to
protect the people of their area and not be negligent and act in a way opposite to that of being
reasonable. Hence, the counsel contends that the death of Jagat falls within the ambit of
negligence under Section-e under Section-304A of the Indian Penal Code, 1860.

5
Sushil Ansal vs State the Cbi (CRIMINAL APPEAL NO.597 OF 2010)
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6
Ibid.
7
Black’s Law Dictionary.

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ISSUE 2. Whether the statement made by Jagat falls within the ambit of criminal
intimidation or not?
It is humbly submitted on behalf of the prosecutor that the statements of Jagat do not fall
within the ambit of criminal intimidation. As per Section-503 of the Indian Penal Code, 1860 8
Criminal intimidation is defined:
Whoever threatens another with any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause alarm
to that person, or to cause that person to do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation.
Explanation. —A threat to injure the reputation of any deceased person in whom the person
threatened is interested, is within this section. Illustration A, for the purpose of inducing B to
desist from prosecuting a civil suit, threatens to burn B’s house. A is guilty of criminal
intimidation.
In the present case Jagat merely made a comment jokingly in the view of the festivities of the
new year. There was no hidden intention or motive behind that comment. As a person of
valor and experience the constable first like any other ordinary and reasonable prudent man
should have questioned Jagat about the statement he made instead of taking such a harsh step
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of calling the second constable to directly start searching them as per the state of panic. As a
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Section- 509 Indian Penal Code, 1860.

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person with such an office such a reaction is not acceptable and must be emphasized on while
considering the case at hand. If there was scope for criminal intimidation then Jagat would
also be at fault and then there would be a reason behind the police taking such a harsh
decision and then the death would not amount to murder but would be culpable homicide
hence, this is an important factor to note.
As per the case of Amulya Kumar Behera vs Nabaghana Behera Alias Nabina 9 the essentials
of criminal intimidation have been defined. It has following essentials.

(1) Threatening a person with any injury;

(a) to his person, reputation or property; or

(b) to the person or reputation of any one in whom that person is interested.

(2) The threat must be with intent; (a) to cause alarm to that person; or

(b) to cause that person to do any act which he is not legally bound to do as means of
avoiding execution of such threat;

Keeping in mind all the above essentials it is clear that Jagat’s mere statement made rather
jokingly is not enough to fall within the ambit of criminal intimidation. As per the case of
Yashinkhan Ahmedkhan And Ors. vs Hushanbhai Rajabbhai And Ors 10 it was stated: In our
opinion criminal force or show of force or criminal intimidation as mentioned in this
section need not necessarily be an ingredient of the offence at all. The words 'attended by'
should include an act done simultaneously with or immediately after another act. We
speak of evil consequences attending a course of conduct. There the evil consequences
follow the course of conduct. So, if the commission of an offence is immediately or
shortly after followed by force or show of force or criminal intimidation the case will be
covered by this section. Hence, in the light of the cases at hand there is no question of
criminal intimidation.

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9
Amulya Kumar Behera vs Nabaghana Behera Alias Nabina (1995 CriLJ 3559, 1995 II OLR 97)
10
Yashinkhan Ahmedkhan And Ors. vs Hushanbhai Rajabbhai And Ors ( (1978) 19 GLR 175)

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ISSUE 3: Whether the police officer liable for misconduct under Section 29 of Police
Act,1861?
The counsel on behalf of the prosecutor contends that the police constable Sitaldas should be
held liable under Section 29 of the Police Act, 186111. Section-29 of the Police Act, 1861
states:
Penalties for neglect of duty, etc.-- Every police- officer who shall be guilty of any violation
of duty or willful breach or neglect of any rule or regulation or lawful order made by
competent authority, or who shall withdraw from the duties of his office without permission,
or without having given previous notice for the period of two months,  or who, being absent
on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of
such leave,] or who shall engage without authority in any employment other than his police-
duty, or who shall be guilty of cowardice, or who shall offer any unwarrantable personal
violence to any person in his custody, shall be liable, on conviction before a Magistrate, to a
penalty not exceeding three months' pay, or to imprisonment with or without hard labor, for a
period not exceeding three months, or to both.
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Section- 29 of the Police Act, 1861.

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 PRAYER
Wherefore, in the light of the facts presented, issues raised, argument advanced and
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authorities cited, it is most humbly prayed before the Hon’ble Sessions Court of
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Ludhiana that it may be pleased to adjudge and declare:

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1. That the Mr. Sitaldas be punished for the offence of murder as provided in the
Indian Penal Code.

The Hon’ble Sessions Court may be pleased to pass any other order as it deems fit in
the interest of

Justice, Equity and Good Conscience.

For this act of Kindness, the Appellant shall duty bound forever pray.

Sd/-

Dated: XX/XX/XXXX (Counsel for the Prosecuteor)

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