Madhusudan Law University, Cuttack Internal Assignment

ADITYA PRASAD PANDA

IN THE HON'BLE HIGH COURT

CRIMINAL APPEALNo.---------of 2023

U/S 374 of CrPC

IN THE MATTER OF

NATU ….…..APPELLANT 1

&

TAPU ………APPELLANT 2

VRS.

STATE ........RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

INDEX PAGE NO

1. INDEX OF AUTHORITIES : 3

2. LIST OF ABBREVIATIONS : 4

3. STATEMENT OF JURISDICTION : 5

4. STATEMENT OF FACTS : 6

5. STATEMENT OF ISSUES : 7

6. SUMMARY OF ARGUMENTS : 8

7. ARGUMENTS ADVANCED : 9-13

8. PRAYER : 14

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INDEX OF AUTHORITIES

A. TABLE OF CASES

1. Nagaraja Vs. State of Karnataka (SCC,2008 )

2. Prakash Chowhan Vs The State of Assam (CRL Rev Pet No. 180 2017 )
3. Balvir Singh Vs The State of Madhya Pradesh (MCRC 04143 / 2019)
4. K.M. Nanavati Vs State of Maharashtra (AIR 1962 SC 605 )
5. Balku Vs. Emperor (AIR 1938 All 532 )

B. BOOKS & ARTICLES

1. K D Gaur, A Textbook on the Indian Penal Code, (6th Ed.2016)

2. Ratanlal & Dhirajlal, The Indian Penal Code (34th Ed. 2014 )
3. S N Mishra, Code of Criminal Procedure, (20th Ed. 2016 )

C. STATUTES
1. Indian Penal Code, 1860
2. Code of Criminal Procedure,1973

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LIST OF ABBREVIATIONS

& And
SEC Section
Hon'ble Honourable

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STATEMENT OF JURISDICTION

The Hon'ble High Court has the jurisdiction to entertain the matter under Section 374 of the
Code of Criminal Procedure, 1973.The provision under which the appellants have approached
the Hon'ble Court is read herein under as:-

374. Appeals from convictions.

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven
years  has been passed against him or against any other person convicted at the same trial], may
appeal to the High Court.

(3) Save as otherwise provided in sub- section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360
by any Magistrate, may appeal to the Court of Session.

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STATEMENT OF FACTS

In a township, Natu lived with his family including wife Tanu, daughter Tina, and son Tapu.
Tapu, who owed Lal Rs. 10000, met Tina and Lal often and fell in love with each other on
pretext to collect the debt money in the absence of Tina’s father and brother. Lal's presence
during Natu's absence does not sit well with Natu. Several times, he told Lal not to visit his
house while he was away. NATU's warning was ignored every time by Lal. On a stated date,
Tapu called Lal and asked him to pick up money from his house. Lal went their house at evening
8 o’clock. On hearing whispering coming from backyard of the house, all the family members of
Natu went to see, where they saw Tina and Lal talking. Natu on seeing them together lost his
temper and started abusing him. Tapu brought a lathi from inside and showed it to LAL and
abused. Lal lost control when Tapu started abusing him and told him he could not abuse him
because he was still in debt. As a result, Tapu became enraged and hit Lal on the shoulder. After
Tapu had grabbed the lathi from Natu's hand, he started beating him. Upon hearing his hue and
cry, people from the neighborhood rushed to his aid. Natu was abusing Lal while TAPU was
beating him. Till then LAL was bleeding and was unconscious. LAL was taken to hospital by the
local people where he died after 10 days. The post mortem report confirmed that LAL had
injuries on his head and occurred much loss of blood. None of the injury independently was
sufficient to cause death. Natu and Tapu were held u/s 302 read with sec 34 IPC by the Session
Court. They went on appeal.

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STATEMENT OF ISSUES

ISSUE – I

WHETHER THERE IS ANY REASONABLE GROUND FOR CONVICTING THE

APPELLANTS UNDER SEC302 IN CONNECTION WITH SEC34 OF THE IPC,1860 OR
NOT?

ISSUE – II

WHETHER THE ACT OF THE APPELLANT’S FALL WITHIN THE EXCEPTION OF

SEC 300 OF THE IPC, 1860 OR NOT?

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SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THERE IS ANY REASONABLE GROUND FOR CONVICTING THE

APPELLANTS UNDER SEC302 IN CONNECTION WITH SEC34 OF THE IPC,1860.

It is humbly submitted on behalf of the Appellant that, Section 34 of the Indian Penal code lays
down the principle of joint liability, wherein if one person also commits the crime, all the other
persons who were sharing a common intention with them, will also be liable. When looking
closely at the chain of events that happened in the Appellant’s house, we can see that there is no
common intention behind the actions. In this case, there is no development of common intention
what so ever among the Appellants and not even similar intentions developed during the
transaction of the incident. Therefore, invoking Section 34 in this case is farfetched as the facts
in this case doesn't show that there was a prior planning or even formation of a shared intention
during the course of the sudden unfortunate incident. The Appellants have all acted differently
and as provoked by the sudden unexpected steps in the incidents. Death of Respondent is caused
by the blows inflicted by Appellant 1 and there is no evidence on record helping to link this act
of Appellant 2 with Appellant 1 invoking Section 34 of IPC.

ISSUE 2

WHETHER THE ACT OF THE APPELLANT’S FALL WITHIN THE EXCEPTION OF

SEC300 OF THE IPC,1860 .

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It is humbly stated that the act of the appellant’s fall under the exception of Section 300 of the
Indian Penal code, 1860 as the death is caused by the Appellant due to grave and sudden
provocation.

ARGUMENTS ADVANCED

ISSUE-1
WHETHER THERE IS ANY REASONABLE GROUND FOR CONVICTING THE
APPELLANTS UNDER SEC302 IN CONNECTION WITH SEC34 OF THE IPC, 1860.

It is humbly submitted that, Section 34 of the Indian Penal code lays down the principle of joint
liability, wherein if one person commits the crime, all the other persons who were sharing a
common intention with them, will also be liable. When looking closely at the chain of events that
happened in the Appellants' house, we can see that there is no common intention behind the
actions. In this case, there is no development of common intention what so ever among the
Appellants and not even similar intentions developed during the course of the transaction of the
incident. Therefore, invoking Section 34 in this case is farfetched as the facts in this case does
not show that there was a prior planning or even formation of a shared intention during the
course of the sudden unfortunate incident. The Appellants have all acted differently and as
provoked by the sudden unexpected steps in the incidents. Death of Respondent is caused by the
blows inflicted by Appellant 1 and there is no evidence on record helping to link this act of
Appellant 2 with Appellant 1invoking Section 34 of IPC.

The Appellant 1 was involved in a verbal abusive interaction with Lal. As he was angry on
seeing his daughter with Lal, despite several warnings. The whole set of transaction leading to
the incidents started as the two appellants overheard the whisper of the Lal and Tina that is not
even a iota of evidence for any other planning of the transaction.

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Appellant 1 and appellant 2 jointly, being angry at the act of Lal who took advantage of the
opportunity of the monetary transaction with the appellant 2, usually used to come to their house
to meet Tina .

It is cleared that there is no meeting of mind Consensus ad idem. The two people have acted in
different ways and there was no common intention even the provocation was apparently
different.

As per Sec34 of IPC,1860 -In Common Intention: ‘Intention’ means "the desire of doing an act."
If two or more persons desirous of doing an act by prior meeting or pre-arranged plan, it is called
Common Intention'. The expression 'common intention' has been given various meanings which
are as follows:

(1)Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in
between all the persons constituting the group.

(2) Common intention means a desire to commit a criminal act without any contemplation of the
consequence.

(3) Common intention means the mens rea necessary to constitute the offence that has been
committed.

(4) It also means evil intent to commit some criminal act, but not necessarily the same offence
which is committed.

(5) According to some, it cannot be given any such meaning which we can apply everywhere,
therefore its exact meaning depends upon the circumstances of each case.

In the above mentioned facts, it is clear that there is no development of common intention , what
so ever among the Appellants and not even similar intentions developed during the course of the
transaction of the incident. Therefore, invoking Section 34 in this case is farfetched as the facts
in this case doesn't show that there was a prior planning or even formation of a shared intention
during the course of the sudden unfortunate incident.

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From various decisions of the Apex Court, it is clear that it is essential to have certain elements
to invoke section 34. They are

1. The common intention or prior meeting of mind to do a criminal act and

2. Participation of all the accused in doing that act in furtherance of the common intention.

In Nagraja v. State of Karnataka court held that "A past enmity by itself, in our opinion, may
not be a ground to hold for drawing any inference of information of common intention amongst
the parties.

Guahati High Court, in the case of 'Prakash Chowhan Vs The State of Assam -To invoke Section
34 Indian Penal Code, it must be established that the criminal act was done by more than one
person in the group in furtherance of common intention of all". The Supreme Court of India
affirmed that "it is essential to prove that there was a meeting of mind. The burden of proving the
meeting of minds is on the prosecution. The burden is strict and the court shall not presume
anything till proved."

In a similar case, 'Balvir Singh vs The State of Madhya Pradesh, the Supreme court acquitted two
of the convicts who caught hold of the deceased who was hit by the primary convict as there was
no evidence of formation of common intention among the convicts.

Therefore, invoking Section 34 in this case is farfetched as the facts in this case does not show
that there was a prior planning or even formation of a shared intention during the course of the
sudden unfortunate incident.

Murder is the most heinous of crimes. The Appellants have all acted differently and as provoked
by the sudden unexpected steps in the incidents.

Death of Respondent is caused by the blows inflicted by Appellant 1 and there is no evidence on
Appellant 2 invoking Section 34 of IPC.

ISSUE-2

ASSESSING WHETHER THE ACT OF THE APPELLANT’S FALL WITHIN THE

EXCEPTION OF SECTION 300 OF THE IPC,1860.
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The Indian Penal Code provides some exceptions when Culpable Homicide will not amount to
Murder under Section 300.

The first special exception of Section 300 is grave and sudden provocation. Exception 1 of the
section states that if the offender whilst deprived of his power of self-control due to sudden and
grave provocation causes death of the person who gave the provocation or any other person by
mistake or accident then in that case that culpable homicide is not murder.

According to the facts of the case the Appellant 1 has lost his power of self-control due to sudden
and grave provocation. The appellant had no intention to cause death of Respondent but
Appellant was provoked in such a way due to grave and sudden provocation for which he caused
the death of Respondent.

The Appellant should get benefit from Section 300 exception 1, since the death resulted due to
grave and sudden provocation.

In the case of K.M.Nanavati Vs. State of Maharashtra AIR 1962 SC 605 the supreme court laid
down some theories relating to grave and sudden provocation.

i. The test of grave and sudden provocation is whether a reasonable man placed in the
same situation would be so provoked as to lose its self-control.
ii. Words and gestures may also under certain circumstances cause grave and sudden
provocation to the accused.
iii. The mental background created by previous act of victim may be taken into
consideration for the subsequent act.
iv. The fatal blow should be traced from the influence of passion arising from provocation
and not after the passion had cooled down by the lapse time.

In the case of Balku v Emperor the court dealt with the Section 300 Exception 1 of Indian Penal
Code (IPC) stating as (sudden and grave provocation) “When 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.”

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The court held that “sudden” does not mean ‘immediate action’, sudden means “something that
is anticipated.” Even the medical evidence shows that there were a number of incised wounds on
the deceased.

Based on the above facts, it is apparent that the Appellant 2 had only hit the Respondent on the
shoulder, i.e., with the intention of hurting, but not killing him, it is caused only on the account
of grave and sudden provocation. Humbly, it is submitted that the Appellant 2 should be held
accountable under Section 334 of the IPC,1860 and not under Section 302.

[Section 334 of the Indian Penal code states that if a person voluntarily causes hurt due to grave
and sudden provocation, he shall be punished for imprisonment for either description for a term
extending to one month or fine extending to 500 rupees or with both.]

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PRAYER

In light of the issues raised, arguments advanced and the authorities cited, the counsel on behalf
of the Appellant humbly prays that the Hon'ble High Court to be graciously pleased to adjudge
and declare that

1. The invocation of Section 34 is erroneous in this case and there was no common intention
among the Appellants.
2. The Appellant 1 be shown sympathy and convicted under Section 304 of IPC and the
Appellant 2 be convicted under Section 334 of IPC

And pass any order which the Hon'ble Court deem fit in the interest of justice, equity and good
conscience.

And for this act of Kindness, the counsel for the Appellant shall duty bound forever pray.

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