Memorial 1

BEFORE
THE HON’BLE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
APPEAL UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973
Criminal Appeals No. _OF 2022
In the matter of:
SURI SHAH ……………………………………………… Appellant 1
GAJENDAR SHAH……………………………………… Appellant 2
SHER SHAH……………………………………………… Appellant 3
(APPELLANTS)
Versus
THE STATE OF HARYANA
(RESPONDENT)
MEMORIAL FILED ON BEHALF OF THE RESPONDENT
Aarya Yuvraj Nain
B.A.LLB
9TH Semester
Roll no. 01
UNIVERISTY INSTITUTE OF LAWS, PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA
TABLE OF CONTENTS
DESCRIPTION PAGE NUMBER

List of Abbreviations 3
Index of Authorities 4-5

• Statutes Referred
• Books Referred
• Websites Referred
• Cases Referred
Statement of Jurisdiction 6
Statement of Facts 7-8
Statement of Charges 9
Statement of Issues 10
Summary of Arguments 11
Arguments Advanced 12-18

• Issue 1
• Issue 2
• Issue 3
• Issue 4
Prayer 19
2|Page MEMORIAL ON BEHALF OF RESPONDENT

LIST OF ABBREVIATIONS
S. NO. ABBREVIATION EXPANSION

1. & And
2. AIR All India Reporter
3. Cr.P.C Code of Criminal Procedure
4. Cri.L.J. Criminal Law Journal
5. Ed. Edition
6. Guj. Gujarat
7. Hon’ble Honourable
8. i.e., That is
9. I.A. Interlocutory Application
10. IPC Indian Penal Code
11. M.P. Madhya Pradesh
12. No. Number
13. Pg. Page
14. PC Privy Council
15. r/w Read with
16. S.No. Serial Number
17. SC Supreme Court
18. SCC Supreme Court Cases
19. SCR Supreme Court Reporter
20. Sec. Section
21. u/s Under Section
22. U.P. Uttar Pradesh
23. v. Versus

INDEX OF AUTHORITIES
STATUTES REFERRED
DESCRIPTION
The Code of Criminal Procedure 1973 (Act 2 of 1973)
The Indian Penal Code 1860 (Act 45 of 1860)
The Indian Evidence Act 1872 (Act 18 of 1872)
BOOKS REFERRED
DESCRIPTION
Prof. S.N. Misra, “Indian Penal Code” (Central Law Publications 22nd Ed.)
K.D. Gaur, “Textbook on The Indian Penal Code” (Universal Law Publishing 4 th Ed.)
Ratanlal & Dhirajlal, “The Indian Penal Code” (Lexis Nexis 33rd Ed.)
WEBSITES REFERRED
DESCRIPTION
www.scconline.com
www.indiankanoon.com
www.judis.nic.in
www.livelaw.in
www.researchgate.net
www.casemine.in

CASES REFERRED
S. Title of the Case Citation Page No.

No.
1. Ashok Kumar v. State of Punjab 1977 Cri.L.J. 164 14
2. Babulal Biharilal AIR 1945 Nag. 931. 12
3. Bachan Singh v. State of Punjab 1980 Cr LJ 1326 18
4. Barendra Kumar Ghose v. Emperor 52 I.A. 40 (PC) 13
5. Gopal v. State of Maharashtra AIR 2008 SC 216 13
6. Kanhaiya Lal AIR 1952 Bhopal 21. 17
7. Khairati Ram AIR 1953 Punjab 241. 17
8. Krishna Govind Patil v. State of AIR 1963 SC 1413 14

Maharashtra
9.. Mohanlal v. State of U.P. AIR 1974 SC 1144 14
10. Nagaraj v. State of Karnataka AIR 2009 SC 1522 13
11. Pravat Chandra Mohanty v. The Cr. Appeal no. 126 of 2021, 15
State of Odisha decided on 11
February,2021
12. Ram Tahal v. State of U.P AIR 1972 SC 254 14
13. State of M.P. v. Ram Prasad AIR 1968 SC 881 12
14. State of Rajasthan v. Dhool Singh AIR 2004 SC 1264 15
15. State of Uttarakhand v. Sachendra 2022 livelaw (SC) 131 15, 18

Singh Rawat
16. State of Uttar Pradesh v. Atul Singh AIR 2009 SC 2713 13
17. Vinod Kumar v. Amritpal 2021 SCC Online SC 1150, 15

decided on 30.11.2021

STATEMENT OF JURISDICTION
The counsel humbly submits that this Hon’ble Court has the jurisdiction to try the instant matter
under Section 374 (2) of the Code of Criminal Procedure, 1973, which provides
“374. Appeals from convictions---(2) Any person convicted on trial held by a Session judge
or an Additional Session Judge or on a trial held by any other court in which a sentence of
imprisonment for more than 7 years has been passed against him or against any other person
convicted at the same trial; may appeal to the High Court.”

STATEMENT OF FACTS
The facts of the present case are as follows:
1. Karim worked as a system operator at a computer Centre in Jajhhar District, Haryana and
lived in the town. His village was at a distance of 12 kilometres from his workplace which he
ordinarily visited on Saturdays and Sundays.
2. Sher Shah (Appellant no. 3) was a farmer who lived with his family consisting of his wife,
Sobti, son Gajendar Shah (Appellant no. 2) and a daughter Naina. Sher Shah’s brother, Suri
Shah (Appellant no. 1), also lived in the same household. He was used to drinking and gambling
and owed a debt of Rs. 20,000 to Karim.
3. Whenever Karim demanded his money, Suri Shah showed his helplessness but never denied
paying off his debt.
4. Karim was in love with Naina and used to meet Naina on the weekends when her father was
not at home on the pretext that he had come to collect the money. Sher Shah did not like it and
told Karim many a times not to visit his home in his absence. He also scolded his daughter for
meeting Karim but Karim did not stop visiting Naina.
5. During the day on Monday, 8th August 2010, Karim received a phone call from Suri Shah
inviting him to come that evening to collect his debt.
6. Karim went to their house around 8.30 P.M. The members of Naina’s family had finished
their dinner and were preparing to go to sleep. On hearing some whispering voices coming
from the backyard of their house, Sher Shah with his brother Suri Shah and son Gajendar Shah
went there to investigate.
7. They saw Karim talking with Naina. Sher Shah lost his temper and started abusing Karim.
Gajendar Shah brought a lathi from inside and gave a blow to Karim on the leg. Then Suri Shah
grabbed the lathi from Gajendar Shah and started beating Karim mercilessly giving blows on
his head and chest.
8. On hearing the hue and cry, other villagers came to the scene. They found Suri Shah giving
blows to Karim while the other two were shouting abuses on Karim. Karim was bleeding from

the head and became unconscious. He was taken to the hospital by the villagers where he died
three days later without regaining consciousness.
9. The post-mortem report confirmed that Karim suffered injuries on the head and fractures of
three ribs. There were many concussions on different parts of his body. There was much loss
of blood. While none of the injuries independently was sufficient to cause death, the cumulative
result was sufficient in the ordinary course of nature to cause death.
10. FIR was registered against Suri Shah, Gajendar Shah and Sher Shah under Section 307 read
with S. 34 of the Indian Penal Code. Three days later when Karim died, it was changed to
Section 302 r/w 34 IPC.
11. The session court charged and convicted all the three accused persons under Section 302
r/w 34 of the IPC and sentenced them to life imprisonment for the murder of Karim.
12. The accused persons pleaded grave and sudden provocation in their defence. They also
pleaded that the prosecution had failed to prove existence of common intention of all the three
accused to kill Karim. In the absence of proof of common intention, they cannot be convicted
under Section 302 r/w 34 IPC.
13. The three accused have filed separate appeals to the High Court against the order of
conviction and sentence and henceforth, the matter is listed before this Hon’ble Court.

STATEMENT OF CHARGES
The FIR was registered under Section 307 read with Section 34 of the Indian Penal Code, 1860.
But after the death of Karim; the charges were altered to Section 302 read with Section 34 of
Indian Penal Code,1860.

STATEMENT OF ISSUES
The following issues have arisen for determination before the Hon’ble Court in the instant
matter:
I. Whether the appellants were rightly convicted for the offence of murder?
II. Whether the nature of injuries and weapon was such as to cause death of the
person?
III. Whether the act of the deceased amounted to grave and sudden provocation?
IV. Whether the Session Court was justified in sentencing the appellants with life
imprisonment in connection with the Act committed by them?
10 | P a g e MEMORIAL ON BEHALF OF RESPONDENT

SUMMARY OF ARGUMENTS
It is submitted that-
• Appellants were rightly convicted for the offence of murder.

• Section 302 read with Section 34 connotes commission of murder by two or more
people in furtherance of a common intention.
person?
• the nature of injuries and nature of weapon used was enough to cause the death
of the person.
• the ante-mortem injuries acquired by the deceased was due to joint and physical
powerful assault by the appellants. Deceased had injury on his leg, chest and
head.
• the Act of the deceased did not amount to grave and sudden provocation.
• The deceased had the justified reason to be present there.
• It is contended that the Hon’ble Sessions Court correctly held the accused as
guilty of murder under Section 302 read with Section 34 of IPC.
• They were rightly given the punishment of life imprisonment.

ARGUMENTS ADVANCED
(A) Conviction under Section 302 of IPC.
1. It is humbly submitted that the appellants were rightly convicted for the offence
of murder committed under Section 300 and punishable under Section 302 of
IPC.
2. The accused has committed the offence of murder because act done by him falls
under the definition of Murder as defined in Section 300 of IPC. The present
case comes under the 4th clause of the said Section.
Section 300 Murder- 4thly- If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death, or such bodily injury
as is likely to cause death, and commits such act without any excuse for incurring the
risk of causing death or such injury as aforesaid.
3. ‘Knowledge’ means the state of mind entertained by a person with regard to
existing facts which he has himself observed, or the existence of which has been
communicated to him by persons whose veracity he has no reason to doubt.
4. ‘Imminent Danger’ means there is a reasonable cause to believe the life or
physical, emotional or financial well-being of an individual is in danger if no
intervention immediately initiated.
5. Where the accused dealt several blows with a fairly heavy lathi on the body of
the deceased causing fracture of two ribs, injury to pleura and laceration and
puncture of the right lung, he was held guilty of murder.1
6. In State of Madhya Pradesh v. Ram Prasad2, the Hon’ble Supreme Court
held that no special knowledge is needed to know that one may cause death by
1
Babulal Biharilal, AIR 1945 Nag. 931.
2
AIR 1968 SC 881
beating if one give blows on chest and head it is obvious that the accused must
have known that he was running the risk of causing the death of the victim or
such bodily injury as was likely to cause his death. The Supreme Court has said
that the clause may on its terms be used in those cases where there is such
callousness towards the result and the risk taken is such that it may be stated
that the person knows that the act is likely to cause death or such bodily injury
as is likely to cause death.
7. The Supreme Court in Gopal v. State of Maharashtra3, held that in order a
case falling under Clause (4) of Section 300 is to be considered as culpable
homicide not amounting to murder, it is not enough for the accused to prove
that the offence was committed without any premeditation due to sudden
quarrel in a spur of moment, but he has also to prove that he has not taken any
undue advantage of the situation and his conduct was not cruel or undesirable.
8. With reference to the case law mentioned above it can be clearly inferred that
the accused took the undue advantage of the situation as they themselves invited
the accused to their place. Further the act of beating the deceased after inviting
him amounts to cruel and undesirable conduct.
(B) Conviction under Section 34 of IPC
1. It is humbly submitted that the appellants shared a common intention to murder Karim.
Section 34 of IPC: “Act 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.”
2. The criminal act under Section 34 means the unity of criminal behaviour which results
in something for which an individual would be punishable if it were all done by himself
alone in an offence.4
3AIR 2008 SC 216

4
Barendra Kumar Ghose v. Emperor, 52 I.A. 40 (PC)
3. In State of Uttar Pradesh v. Atul Singh5, it was observed by the Supreme Court that-
• Common intention under Section 34 is only a rule of evidence and it does not create a
substantive offence;
• It talks of ‘common intention’ and does not say ‘common intention of all’, nor does it
say, ‘intention common to all’;
• For applying Section 34 it is not necessary to show some overt act on the part of the
accused;
• Direct proof of common intention is seldom available; therefore, such intention is to be
inferred from the circumstances appearing from proved facts of the case.
4. In the case of Ashok Kumar v. State of Punjab6, it was observed that “the existence
of a common intention amongst the participants in a crime is the essential element for
application of this Section. It is not necessary that the acts of the several persons
charged with commission of an offence jointly must be the same or identically similar.
The acts may be different in character, but must have been actuated by one and the
same common intention in order to attract the provision.”
5. In certain situations, the common intention may develop suddenly on the spot 7 and such
common intention may be inferred from the facts and circumstances of the case and
conduct of the accused. The pre-arranged plan may develop on the spot during the
course of the commission of the offence but the crucial circumstance is that the said
plan must precede the act constituting the offence. 8
6. It is presumed that every sane person intends the result that his action normally
produces and if a person hits another on a vulnerable part of the body and death occurs
as a result, the intention of the accused can be no other than to take the life of the victim
and the offence committed amounts to murder.
7. It is a well settled principle that where the case is mainly based on circumstantial
evidence, the court must satisfy itself that various circumstances in the chain of
5
AIR 2009 SC 2713. Nagaraj v. State of Karnataka, AIR 2009 SC 1522
6 1977 Cri.L.J. 164
7
Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413
8
Ram Tahal v. State of U.P., AIR 1972 SC 254
evidence should be established clearly and that the completed chain must be such as to
rule out a reasonable likelihood of the innocence of the accused. 9
8. So, it can be construed that the act of the appellants of bringing the lathi from inside
and beating Karim constantly shows that they had the common intention to kill Karim
which is established by well linked chain of circumstantial evidence.
person?
1. It is humbly submitted before this Hon’ble Court that the nature of injuries and
weapon used in the present case was sufficient to cause death of the person. The
ante-mortem injuries acquired by the deceased were due to joint and physical
powerful assault by the appellants. Deceased had injury on his leg, chest and head.
2. In Pravat Chandra Mohanty v. The State of Odisha10, it was said by the Supreme
Court that the wooden lathis and batons, commonly used by Police, can be weapons
of death. The Court refused to accept that lathis and batons were inoffensive and
cannot be lethal enough to cause death. It was observed that a lot depends on the
manner in which these weapons are used.
3. It is necessary to consider that the number of injuries only does not matter; it is also
the nature of the injuries and part of body where it is caused. 11
4. In the case of Vinod Kumar v. Amritpal12, the Court held that it is impossible to
say that the injuries on the chest which resulted into fracture of 5 ribs and rupture
of right lung were accidental or unintentional. From the medical evidence, it was
clear that the injuries on the vital parts like right lung and liver which resulted into
bleeding and shock were sufficient to cause the death in the ordinary course of
nature.
9
Mohanlal v. State of U.P., AIR 1974 SC 1144
10 Cr. Appeal no. 126 of 2021, decided on 11 February,2021.
11
State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264
12
2021 SCC Online SC 1150, decided on 30.11.2021
5. In State of Uttarakhand v. Sachendra Singh Rawat 13,the fact that the accused
gave several blows or multiple blows on the vital part of the body- head which
resulted into grievous injuries and he used phakadiyat with such a force which
resulted in skull fracture and a frontal wound on left side and wounds with 34
stitches on the left side of the skull extended from mid of the left side of the skull
along with coronal sutures of 16 cm, the Supreme Court was of the opinion that the
case would fall under clauses thirdly and fourthly of Section 300 IPC and culpable
homicide can be said to be amounting to murder.
6. The counsel therefore asserts that in reference to the above stated points, the
accused in the present case has caused sufficient injuries to hold him responsible
for the causing death of Karim. When Suri Shah was giving blows to Karim with
lathi, the other two were shouting abuses on Karim, the deceased sustained injuries
on the head and fractures of three ribs and also, there were many concussions on
different parts of his body. There was much loss of blood. Karim was bleeding from
the head and became unconsciousness. Eventually, he died three days later without
regaining consciousness due to the cumulative effect of these injuries.
1. It is humbly submitted that the act of the deceased did not amount to grave and
sudden provocation as pleaded by the appellants. It does not come within the ambit
of Exception 1 to Section 300 which says:
“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 any person by mistake or accident.”
2. The First proviso to Exception 1 states “That the provocation is not sought or
voluntarily provoked by the offender as an excuse for killing or doing harm to any
person.”
13
2022 livelaw (SC) 131
3. There is a difference between intentional killing in hot blood and an intentional

killing in cold blood. The former was killing in provocation and was considered to
be a less heinous kind of homicide than the latter one done by a man who was in
possession of his self-control.14
4. Provocation must be sudden. It is sudden when there was no time, for the passion
to cool down.15 If the act was done after the first excitement had passed away and
there was time to cool, it is murder. The test of grave provocation is whether it
would deprive a reasonable man of his power of self-control.
5. In order that the provocation may be pleaded in partial defence to a charge of murder
for mitigation of the offence four things are necessary:
• There must be provocation;
• Provocation must be grave and sudden;
• By reason of such grave and sudden provocation the offender must have been
deprived of the power of self-control; and
• The death of the person who gave provocation or of any other person, by mistake
or accident, must have been caused.16
6. In the present case there was no grave and sudden provocation so as to deprive the
accused of the power of self-control. In fact, it was Suri Shah who had invited Karim
in order to repay him the loan amount. So, Karim had a justified reason to be present
there. There was nothing at that moment so as to provoke the accused to an extent
that they will kill Karim. Also, even it is assumed that they were provoked in the
heat of the moment, they had sufficient time to cool down. In the beginning only
abuses were hurled, after that Gajendar Shah brought lathi and gave a blow on leg
of Karim. After that Suri Shah took the lathi and gave blows mercilessly on the head
and chest area. Also, according to First proviso to Exception1 provocation must not
be sought by the accused, instead provocation must come to him.
14
1 Hale P.C. 451.
15
Khairati Ram, AIR 1953 Punjab 241.
16
Kanhaiya Lal, AIR 1952 Bhopal 21.
7. It is contended that the accused have killed the respondent with the knowledge that
the act is so imminently dangerous that it must in all probability, cause death, or
such bodily injury as is likely to cause death.
1. It is humbly submitted that the Hon’ble Sessions Court correctly held the accused
as guilty of murder of Karim under Section 302 read with Section 34 of IPC. Section
302 read with Section 34 means commission of murder by two or more people in
furtherance of a common intention.
Section 302 of IPC reads:
“302. Punishment for murder- Whoever commits murder shall be punished with death,
or imprisonment for life, and shall also be liable to fine.”
2. The sentence of death should be awarded in rarest of rare cases i.e., life
imprisonment should be rule and death sentence exception. 17
3. In The State of Uttarakhand v. Sachendra Singh Rawat18, the respondent was
held guilty for the offence under Section 302 IPC for having killed and/or
committed the murder of the deceased Virendra Singh and he is sentenced to
undergo life imprisonment.
4. As the present case of death of Karim does not fall within the category of rarest of
rare case, so the death penalty cannot be imposed, hence the option left is life
imprisonment. So, the Session Court was justified in sentencing the appellants to
life imprisonment.
17
Bachan Singh v. State of Punjab, 1980 Cr LJ 1326.
18
2022 Livelaw (SC) 131
PRAYER
Wherefore in light of the facts presented, issues raised, arguments advanced and
authorities cited the Counsel for the Respondent humbly pray before this Hon’ble Court
that it may be pleased:
1. To declare that the Judgment given by the Sessions Court is appropriate;

2. To declare that the Appellants have been rightly convicted for the offence
punishable under Section 302 of Indian Penal Code;
3. To convict the accused for the offence punishable under Section 302 of Indian Penal
Code along with Section 34 of Indian Penal Code;
And/or
Pass any other order or make directions as the Hon’ble Court may deem fit and
proper in the interest of justice.
And for this act of benevolence, the Counsel for the Respondent as in duty bound
shall forever pray.
All of which is respectfully submitted.

_______________________________
Sd/-
COUNSEL FOR RESPONDENT

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BEFORE

THE HON’BLE HIGH COURT OF PUNJAB & HARYANA

APPEAL UNDER SECTION 374(2) OF

THE CODE OF CRIMINAL PROCEDURE, 1973

Criminal Appeals No. _OF 2022

In the matter of:

SURI SHAH ……………………………………………… Appellant 1

GAJENDAR SHAH……………………………………… Appellant 2

SHER SHAH……………………………………………… Appellant 3

THE STATE OF HARYANA

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

Aarya Yuvraj Nain

DESCRIPTION PAGE NUMBER

Index of Authorities 4-5

Statement of Facts 7-8

Arguments Advanced 12-18

2|Page MEMORIAL ON BEHALF OF RESPONDENT

S. NO. ABBREVIATION EXPANSION

3|Page MEMORIAL ON BEHALF OF RESPONDENT

The Indian Penal Code 1860 (Act 45 of 1860)

The Indian Evidence Act 1872 (Act 18 of 1872)

4|Page MEMORIAL ON BEHALF OF RESPONDENT

S. Title of the Case Citation Page No.

2. Babulal Biharilal AIR 1945 Nag. 931. 12

3. Bachan Singh v. State of Punjab 1980 Cr LJ 1326 18

4. Barendra Kumar Ghose v. Emperor 52 I.A. 40 (PC) 13

5. Gopal v. State of Maharashtra AIR 2008 SC 216 13

6. Kanhaiya Lal AIR 1952 Bhopal 21. 17

7. Khairati Ram AIR 1953 Punjab 241. 17

8. Krishna Govind Patil v. State of AIR 1963 SC 1413 14

9.. Mohanlal v. State of U.P. AIR 1974 SC 1144 14

10. Nagaraj v. State of Karnataka AIR 2009 SC 1522 13

13. State of M.P. v. Ram Prasad AIR 1968 SC 881 12

14. State of Rajasthan v. Dhool Singh AIR 2004 SC 1264 15

15. State of Uttarakhand v. Sachendra 2022 livelaw (SC) 131 15, 18

16. State of Uttar Pradesh v. Atul Singh AIR 2009 SC 2713 13

17. Vinod Kumar v. Amritpal 2021 SCC Online SC 1150, 15

5|Page MEMORIAL ON BEHALF OF RESPONDENT

6|Page MEMORIAL ON BEHALF OF RESPONDENT

The facts of the present case are as follows:

7|Page MEMORIAL ON BEHALF OF RESPONDENT

8|Page MEMORIAL ON BEHALF OF RESPONDENT

9|Page MEMORIAL ON BEHALF OF RESPONDENT

10 | P a g e MEMORIAL ON BEHALF OF RESPONDENT

• Appellants were rightly convicted for the offence of murder.

11 | P a g e MEMORIAL ON BEHALF OF RESPONDENT

(A) Conviction under Section 302 of IPC.

(B) Conviction under Section 34 of IPC

3AIR 2008 SC 216

3. There is a difference between intentional killing in hot blood and an intentional

1. To declare that the Judgment given by the Sessions Court is appropriate;

All of which is respectfully submitted.

COUNSEL FOR RESPONDENT

19 | P a g e MEMORIAL ON BEHALF OF RESPONDENT

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