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TEAM CODE: R25

INTRA MOOT COURT COMPETITION, 2023

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 132 AND 134 OF THE CONSTITUTION OF

INDIA, 1950.

THE STATE (APPELLANT)

V.
KISHORE…(RESPONDENT/DEFENDANT)

MEMORIAL SUBMITTED ON BEHALF OF THE DEFENDANT

COUNSEL APPEARING ON BEHALF OF KISHORE.

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS 1

INDEX OF AUTHORITIES 2

 LEGISLATION 2
 CASES REFERRED 2
 BOOKS REFERRED 2
 LEGAL DATABASES 2
 IMPORTANT DEFINATIONS 2

STATEMENT OF JURISDICTION 3

STATEMENT OF FACTS 4-5

STATEMENT OF ISSUES 6

SUMMARY OF ARGUMENTS 7-8

ARGUMENTS ADVANCED 9-17

Whether Kishore had committed an offence under Section 326A r/w Section 34 of IPC,
1860? 9

Whether Kishore had committed an offence under section 354d of IPC? 11

Whether there exists common intention between the accused Kishore and Tanmay? 14

Whether the state is justified for seeking permission for addition of charge u/s 366 of IPC?
17

PRAYER 18
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LIST OF ABBREVIATIONS

CrPC Criminal Procedure Code

Hon’ble Honorable

IPC Indian Penal Code

r/w Read with

S Section

Sec. Section

V. Versus

vs Versus

MP Madhya Pradesh

UP Uttar Pradesh

RJ Rajasthan

Art. Article

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INDEX OF AUTHORITIES

LEGISLATION

1. THE INDIAN CONSTITUTION ACT, 1950.

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

CASES REFERED

 Lala Ram v. State of Madhya Pradesh

 Ghurey Lal v. State of Uttar Pradesh
 Lata Singh v. Uttar Pradesh
 State of Rajasthan v. Gurbachan Singh

BOOKS REFERRED

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

• DR. J.N. PANDEY, THE CONSTITUTIONAL LAW OF INDIA, (51ST ED., 2014).
• K D GAUR, TEXTBOOK ON INDIAN PENAL CODE, SIXTH EDITION, 2018.
• UNIVERAL’S CRIMINAL MANUAL, 2017 EDITION.
• SHAILENDER MALIK, THE INDIAN PENAL CODE, TWENTY FIFTH EDITION, 2011.
• RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, THIRTHY FOURTH
EDITION, 2012

LEGAL DATABASES
• WWW.LEGALSERVICEINDIA.COM
• WWW.INDIANKANOON.ORG
• WWW.LAWRATO.COM
• WWW.MANUPATRA.COM
• WWW.INDIANCASELAWS.ORG
• WWW.INDLAW.COM
• WWW.JUDIC.NIC.IN
• WWW.LEXISNEXIS.COM

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

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Statement of Jurisdiction

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

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

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STATEMENT OF FACTS

A. BACKGROUND OF THE CASE.

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

B. HATE INCITED BETWEEN AHANA’S PARENTS AND KISHORE.

4) That on 14th Feb, 2018 Kishore proposed to Ahana for marriage and since Ahana also
admired him she asked Kishore to speak to her parents regarding the same.
5) That on 20th Feb, Kishore approached her parents with the marriage proposal as asked
by Ahana. However, Ahana’s parents rejected his offer and also strongly admonished
Ahana and threatened that they will discontinue her studies.
6) However out of love Kishore tried contacting Ahana believing that all her actions
were under undue influence of her parents.
7) That as a responsible man Kishore again tried to convince Ahana’s parents for their
marriage but her parents strongly revoked his proposal and also beat him brutally and
asked him to leave.

C. ACTION ABETTED BY TANMAY.

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

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10) That on 23rd March 2018 when and Kishore and Tanmay were waiting for Ahana on
a lonely road, Kishore approached Ahana to accompany him to the temple so that they
can get married. On Ahana’s refusal, Tanmay carrying the bottle of acid threatened
Ahana.
11) Chaos was created as Ahana started shouting. To teach a lesson to Ahana, Tanmay
opened the bottle and threw acid on her face.
12) That the Session Court convicted Kishore under Section 326 A r/w Section 34 of IPC,
1860 and sentenced him to 10 years of rigorous imprisonment. He was also asked to
pay compensation to Ahana to the sum of Rs. 200000/- to be paid immediately. He
was also awarded rigorous imprisonment for 2 years under section 345D, IPC, 1860.
Both the sentences were to run concurrently.

D. MATTER BEFORE THE COURT

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

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STATEMENT OF ISSUES

ISSUE I

WHETHER KISHORE HAD COMMITTED AN OFFENCE UNDER SECTION 326A

R/W SECTION 34 OF IPC, 1860?

ISSUE II

WHETHER KISHORE HAD COMMITTED AN OFFENCE UNDER SECTION 354D

OF IPC?

ISSUE III

WHETHER THERE EXIST COMMON INTENTION BETWEEN ACCUSED

KISHORE AND TANMAY AS PER THE SECTION 34 OF IPC, 1860?

ISSUE IV

WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION FOR

ADDITION OF CHARGE U/S 366 OF IPC?

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER KISHORE HAD COMMITTED AN OFFENCE UNDER

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

It is humbly submitted before the court that the defendant had not committed any offence
under Section 326A r/w Section 34 of IPC as there was absence of the requisites of
committing a criminal offence under Sec. 326A, there was absence of actus reus and there
was absence of mens rea. Section 326A can be attracted only when the act is done
voluntarily, but the Respondent has no voluntary control over the act done by Tanmay. No
common intention has been proved by the prosecution hence Kishore cannot be held liable
for offence punishable under section 326A R/W section 34 of IPC, 1860.

ISSUE II: WHETHER KISHORE HAD COMMITTED AN OFFENCE UNDER

SECTION 354D OF IPC?

It is humbly submitted before the Court that the defendant has not committed any offence
under Section 354 D of Indian Penal Code,1860, as Ahana did not show any disinterest
towards the defendant, she only told him that she will not go against the wishes of her
parents. As an adult her opinion is must and nowhere it is mentioned that her opinion is
similar to that of her parents.

ISSUE III: WHETHER THERE EXIST COMMON INTENTION BETWEEN

KISHORE AND TANMAY AS PER THE SECTION 34 OF IPC, 1860?

It is humbly submitted before the Court that there existed no common intention between
Kishore and Tanmay as per Section 34 of IPC, 1860 as, Kishore had no intention of
committing such an act and he did not agree to that and, The act was not done in furtherance
of the common intention under Section 34 which is important to attract the Section. Common
intention is not proved by the prosecution hence Kishore is not liable for section 34 as well as
for main act (section 326a IPC)

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ISSUE IV: WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION

FOR ADDITION OF CHARGE U/S 366 OF IPC.

It is humbly submitted before the Court that the present matter has already been tried before
the Sessions Court. At the time of trial, the court did not framed the charge against the
accused with Section 366, IPC, 1860 hence he cannot be held liable for section 366 IPC as it
will result in violation of principles of natural justice (Audi Alteram Partem)

‘Listen to the other side’ or ‘let other side be heard as well.’ It is the principle that no
person should be judged without a fair hearing in which each party is given the
opportunity to respond to the evidence against them.

The accused was not heard during trial as he was not charged under 366 IPC as it was not
invoked at that time so he cannot be judged or held liable without hearing him. He was not
given any opportunity of defend himself on this charge during the trial or charge framing
stage.

Sec. 366 IPC cannot be invoked against the accused as the ingredients of this section are not
fulfilled.

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ARGUMENTS ADVANCED

I. WHETHER KISHORE HAD COMMITTED AN OFFENCE UNDER SECTION

326 R/W SECTION 34 OF IPC, 1860?

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

Actus Reus refers to the act or omission that comprise the physical elements of a crime as
required by statute. Actus reus includes only a voluntary affirmative act, or an omission
(failure to act), causing a criminally proscribed result. The actus reus includes only voluntary
bodily movements, particularly one which society has an interest in preventing.

Courts presume that criminal offences require some form of subjective mens rea— intent,
knowledge, recklessness, or willful blindness—in relation to all aspects of the actus reus
unless Parliament clearly indicates otherwise.”

Mens rea is a technical term, generally taken to mean some blameworthy mental condition,
whether constituted by intention or knowledge or otherwise, the absence of which on any
particular occasion negatives the intention of a crime. The act becomes criminal when the
actor does it with a guilty mind.

AS PER SECTION 326 A WHOEVER VOLUNTARILY CAUSING GRIEVOUS

HURT BY USE OF ACID ETC. –

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

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Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment
of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.

“A person is said to cause an effect “voluntarily” when he causes it by means whereby, he intended
to cause it, or by means which, at the time of employing those means, he knew or had reason to
believe to be likely to cause it.”
According to sec. 39 of IPC 1860, a person is said to cause an effect voluntarily, when he causes it
(i)intentionally, or
(ii)he knew or had reasons to believe, to be likely to cause it.

It is humbly submitted before the Court that the defendant did not cause the act voluntarily as
firstly, he had no intention of causing harm to the victim and secondly, he had no reasons to believe
that such incident would occur as it happened unintentionally. Moreover, defendant did not commit
such an act.

The intention of the accused was not to throw acid on the victim rather he clarified to the co-
accused not to cause any harm to the victim by the use of acid but only for the purpose of
threatening her for compliance to their wishes.

Considering the facts of case there was not even the intention of causing the hurt to the victim in
mind of Accused-1.

It is humbly submitted to Court that the Accused-1 can’t be punished under the principle of joint
liability because he had no intention to bring about grievous hurt or even knowledge of that such
degree of hurt was a likely consequence. Similar situation was observed in Lala Ram vs State of
M.P.

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

The basic principle of criminal jurisprudence is that a person shall be deemed to be innocent unless
proved guilty after acquittal in a criminal case the presumption is further strengthen hence the
appellate court cannot reverse the findings of acquittal into conviction only because the other view
is also possible.

The basic principle of criminal jurisprudence that when two views are possible the one favorable to
the accused has to be adopted/follow, hence the accused is entitled to benefit of doubt at every
stage.

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II. WHETHER KISHORE HAD COMMITTED AN OFFENCE UNDER

SECTION 354D OF IPC?

It is humbly submitted before the Court that Kishore has not committed an offence under
Section 354 D of Indian Penal Code,1860.

According to Section 354D of IPC,

Any man who—

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

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

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

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

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

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

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

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

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

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

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

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

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

As an adult her opinion is must and nowhere it is mentioned that her opinion is similar to that of
her parents. Nowhere in the case it is mentioned that the defendant follows her, but it is
mentioned that on one occasion she made it clear that she will not go against her parents. It
clearly states that they don’t meet each other on regular basis, hence the accused doesn’t follow
her.
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Moreover in the case of Lata singh v.State of Uttar Pradesh19, the Supreme Court viewed the
right to marry as a component of right to life under Art 21 of Indian Constitution the court
observed that: “This is a free and democratic country, and once a person becomes a major he
or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of
such inter-caste marriage the maximum they can do is that they can cut off social relations
with the son or daughter, but they cannot give threats or commit or instigate acts of violence
and cannot harass the person who undergoes such intercaste marriage”. Since both Ahana
and Kishore have the right to marry as per their choice. Ahana’s parents cannot pressurize
Ahana and assault Kishore when he went again with the proposal to marry Ahana and
threaten Ahana to stay away from him or else they would discontinue her studies.

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III. WHETHER THERE EXIST COMMON INTENTION BETWEEN KISHORE

AND TANMAY AS PER THE SECTION 34 OF THE IPC, 1860?

It is humbly submitted before the Court that there existed no common intention between Kishore
and Tanmay as per the Section 34 of the IPC, 1860.

SECTION 34 OF INDIAN PENAL CODE,1860

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

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

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

(i) Common intention to commit a crime, and

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

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

To constitute common intention, it is necessary that the intention of each one of the accused
was known to the rest of them and was shared by them. The test to decide if the intention of
one of them is common is to see whether the intention of one was known to the other and was
shared by that other.

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In drawing the inference, the true rule of law which is to be applied is the rule which requires
that guilt is not to be inferred unless that is the only inference which follows from the
circumstances of the case and no other innocuous inference can be drawn.26

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

Section 34 of the IPC makes a co-perpetrator, who had participated in the offence, equally
liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be
common intention among the co-perpetrators, which means that there should be community
of purpose and common design. Common intention can be formed at the spur of the moment
and during the occurrence itself. Common intention is necessarily a psychological fact and as
such, direct evidence normally will not be available. Therefore, in most cases, whether or not
there exists a common intention, has to be determined by drawing inference from the facts
proved. Constructive intention, can be arrived at only when the court can hold that the
accused must have preconceived the result that ensued in furtherance of the common
intention." (State of Rajasthan vs Gurbachan Singh)

ABSENCE OF COMMON INTENTION

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

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

Therefore, it is humbly submitted that there was no common intention between Kishore
and Tanmay, in fact he did not have any knowledge of any such intention of Tanmay of
throwing acid on Ahana as Kishore strictly said no for the use of acid to which Tanmay
agreed. Hence, in absence of common intention he must not be held liable under S.34 of
the IPC.
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THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION

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

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

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

It is humbly submitted to Court that the Accused-1 can’t be punished under the principle
of joint liability because he had no intention to bring about grievous hurt or even
knowledge of that such degree of hurt was a likely consequence. Similar situation was
observed in Lala Ram vs State of M.P.

Hence, it is humbly submitted that there was no presence of common intention on the part
of Kishore in the act of throwing acid on the face of victim and hence the Accused-1,
Kishore cannot be charged under section 34 The counsel submits that since the
aforementioned two essential conditions have not been met with in the present. It is
further submitted that the accused must not be held liable under S.34 of IPC.
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IV. WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION FOR

ADDITION OF CHARGE U/S 366 OF IPC?

It is humbly submitted before the Hon’ble Court that the present matter has already been tried

before the Sessions Court. The Magistrate, at the time of committal proceedings under
Section 209, CrPC did not charge the accused with Section 366, IPC, 1860.

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

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

Section 366 IPC cannot be invoked against the accused as the offence under section 366
IPC is not complete even the ingredients of kidnapping are not fulfilled as the accused is
not succeeded in taking away the victim or even to get her Inside their car

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

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

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

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PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

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

1. To declare that Kishore is not guilty of the crime of causing

grievous hurt by use of acid and stalking.

2. To declare that permission shall not be given to the State to add

a charge of Section 366, IPC against the accused.

3. To declare that the High Court’s acquittal order of Kishore should

be reserved.

AND/OR

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

INTEREST OF JUSTICE, EQUITY AND GOOD

CONSCIENCE. AND FOR THIS ACT OF

KINDNESS, THE COUNSELS FOR THE

DEFENDANT AS IN DUTY BOUND

SHALL EVER PRAY.

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