MAY 2021

KASHMIRLAWCOLLEGE,NOWSHERASRINAGAR
MOOTCOURTFILE

Prepared by:
Mehak Rashid, Roll no 07
Semester:9th,Section:A

Teacher incharge :
Mrs Haza
BEFORE THE HON’BLE HIGH COURT OF PUNJAB AND HARYANA
Under Section 374(2) of the Code of Criminal Procedure, 1973

IN THE MATTER OF

1. SHER SHAH
2. GAJENDRA SHAH
3. SURI SHAH ….APPELLANTS VERSUS
KARIM …RESPONDENT

In the matter of

whether section 34 can be invoked or not

(Counsel appearing on behalf of Respondent )

TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………….……………...………….04
INDEX OF AUTHORITIES…………………………..…………............05
BOOKS REFERRED ……………………………………………………….…06
WEBSITES REFERRED……………………………………………….……..06
STATEMENT OF JURISDICTION……….……………………….........07
STATEMENT OF FACTS………….……………..….………………....... 08
STATEMENT OF ISSUES…….……………………………………….......11
SUMMARY OF ARGUMENTS………………….………………..………11
PRAYER…………………………………………………………….………….….20

• LIST OF ABBREVIATIONS

S. No. Abbreviation Full Form

1) & And

2) AIR All India Reporter

3) Cr.PC Code of Criminal Procedure

4) CrLJ Criminal Law Journal 5) Hon’ble

Honourable
6) IPC Indian Penal Code

7) Ors Others

8) SC Supreme Court

9) SCC Supreme Court Cases

10) Sec Section 11) v

Versus
• INDEX OF AUTHORITIES

1. K M Nanavati v. st of Maharashtra 1962 SC 605(28)

2. Ashok Kumar v. State of Punjab.
3. CH pulla Reddy and Ors v. St of Andhra Pradesh.
4. KaruMarik VS. State of Bihar
• BOOKS REFERRED
1. The Code of Criminal Procedure, by SN Mishra
2. The Indian Penal Code, by SN Mishra
.

• WEBSITES REFERRED

• http://www.supremecourtcaselaw.com

• http://indiankanoon.org

• http://www.government.nl

• STATEMENT OF JURISDICTION

The Counsels, appearing on behalf of the Respondent, humbly submit this memorandum under

Sec. 314 of the Code of Criminal Procedure, 1973. The memorandum sets forth the
facts, contentions and arguments in the present case.
The counsel humbly submits that this Hon’ble Court has jurisdiction to try the instant matter under sec.
374(2) of the code of criminal procedure , 1973.

• STATEMENT OF FACT.

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. Sher Shah was a farmer who lived with his family consisting of his wife, Sobti,
son Gajendar Shah and a daughter Naina. Sher Shah’s brother, Suri Shah, also lived in the same
household. He was used to drinking and gambling and owed a debt of Rs. 20,000 to Karim. Whenever
Karim demanded his money, Suri Shah showed his helplessness but never denied to pay off his debt.
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. 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. 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. 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. 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. FIR was registered against Suri Shah, Gajendar Shah and Sher Shah under
Section 307 read with S. 343of the Indian Penal Code. Three days later when Karim died, it was changed
to Section 3024r/w 34 IPC. 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. 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.The
three accused have filed separate appeals to the High Court against the order of conviction and
sentence you may choose to represent any party/ parties in this appeal keeping in.

• STATEMENT OF ISSUES

The following issue have arisen for determination before the Hon’ble Court in the instant matter:
 •Whether there was common intention among accused or sec34 can be invoked or not.

• SUMMARY OF ARGUMENTS

May it please your honor

The counsels on behalf of the respondent humbly submit that the judgment passed by the Sessions
Court is appropriate and the conviction of the accused under section 302of IPC is correct and as per the
demands of justice. To convict any accused under the aforementioned section, the requirements of
section 300of IPC needs to be fulfilled. The instant case comes under the purview of clause 4thof this
section since the accused has committed the act which he knew to be imminently dangerous that it
would, in all probability, cause death or such bodily injury as is likely to cause death and committed it
without any excuse for incurring the risk of causing such death or injury as aforesaid. The accused
Gajendra Shah committed the murder of Karim by bringing a lathi from inside and beating Karim on the
leg. Suri Shah then grabbed it and started beating Karim mercilessly, giving blows on his head and chest.
He had the knowledge that this act is imminently dangerous to the extent that in all human probabilities
it would lead to his death or at least cause him such bodily injuries which might lead to death.
Moreover, he did not have any excuse for undertaking such a risk in the sense that it was necessary for
him to do such an act at that very particular moment. This is an undisputed fact that the post-mortem
report confirmed that Karim suffered

YOUR HONOR:

THE ACCUSED PERSONS ARE LIABLE TO BE PUNISHED UNDER SECTION 34 OF INDIAN PENAL CODE.

If the criminal act is done in furtherance of common intention, each person is liable for the result of such
act. Once it is prove that the criminal act was done in furtherance of common intention of all, each
person is liable for the criminal act as if it were done by him alone.. Essential ingredient of S.34: i) There
must be a criminal act.
ii) The criminal act done by several person iii) The act is done in furtherance of common intention of all.
Participation, in the commission of the offence, in furtherance of common intention invites its
application. Accused along with the principal offender intended to do the offence prior to the
commission of the offence. They have got inspired and incited by each other’s presence. The case in
which the ingredients are satisfied or established all accused will be liable for the said offence. Under
the provision of S.34 the essence of the liability is to be found in the existence of a common intention
animating from the accused leading to the commission of a criminal act in furtherance of such
intention. Thus it is humbly submitted before the Hon’ble Court that from all the facts presented, the
respondent has proved the common intention from the part of all the three accused to do the alleged
crime.

Intention of Accused “In the present analysis of the mental element in crime, the word ‘intention’ is
used to denote the mental attitude of a man who has resolved to bring about certain result if he can
possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims.” 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. Though Karim ordinarily used to meet Naina on the weekends when her
father was not at home but that day, it was Suri Shah who invited Karim himself. So Karim had a valid
reason to be at Sher Shah’s house and was at no fault. Suri Shah owed a debt of 20,000 rupees and Sher
Shah had told Karim not to visit his home when he was absent. The admitted facts here are that the
appellant and the deceased were not having good relations and Suri Shah had no means to repay his
debt off so can do anything in that order.The deceased was mercilessly given blows on his head and
chest and on hearing the hue and cry, villagers came to the scene who were the witnesses and 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.

YOUR HONOR,
The accused would be liable for the offence of murder though there was not pre-meditation
of the act. So the act of murder would be punishable under the section of 302 28of IPC. 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. This proves that accused persons have committed the offence of the
Murder. For the act done by the accused he must be punished. The act committed by the accused
persons comes under the Section 302 of Indian Penal Code. The said section prescribes the punishment
for murder. In the present case, accused has committed the murder of Karim (as proved above) and for
this they are liable under Section 302.
YOUR HONOR
THE ACCUSED WAS RIGHTLY CONVICTED FOR THE OFFENCE

PUNISHABLE UNDER SECTION 302 OF IPC.It is most humbly submitted that Co-Accused shared a
common intention to murder Karim. It was 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. Also, Suri Shah grabbed
the lathi from Gajendar Shah and started beating Karim mercilessly giving blows on his head and chest.
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. The Supreme Court while dealing with the
question of conviction under Section 307 along with Section 34 in the matter of Girija Shankar v. State
of U.P.32 held that: “Section 34 has been enacted on the principle of joint liability in the doing of a
criminal act. The Section is only a rule of evidence and does not create a substantive offence. The
distinctive feature of the Section is the element of participation in action. The liability of one person for
an offence committed by another in the course of criminal act perpetrated by several persons arises
under Section 34 if such criminal act is done in furtherance of a common intention of the persons who
join in committing the crime. Direct proof of common intention is seldom available and, therefore such
intention can only be inferred from the circumstances appearing from the proved facts of the case and
the proved circumstances. In order to bring home the charge of common intention, the prosecution has
to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all
the accused persons to commit the offence for which they are charged with the aid of Section 34, be it
pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime.
The true concept of Section is that if two or more persons intentionally do an act jointly, the position in
law is just the same as if each of them has done it individually by himself.” In the case of :

KaruMarik

V/S

State of Bihar

SC held it is evident that injuries caused it is clear that intension of accused was at least to cause such
bodily injury as was likely to cause death. Therefore conviction of accused for murder was proper.

In the case of:

Ashok Kumar

v.

State of Punjab,

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.”
In the matter of

Ch. Pulla Reddy and Ors

v.

State of Andhra Pradesh,

it was held that: “Section 34 is applicable even if no injury has been caused by the particular accused
himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.”
It is submitted that the common intention or plan may be proved either from conduct, circumstances or
from incriminating facts. It is submitted it can be inferred from the instant facts that the co-accused had
the common intention as Karim was invited by Suri Shah to their house and in the presence of Sher
Shah, on a weekday. Moreover, the factsheet provides that 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.

In light of the above, it can be rightly construed that Coaccused had the common intention to kill and
cause grievous hurt to Karim as all the ingredients required under Section 34 are satisfied. It is humbly
submitted that Accused persons are liable to be convicted under Section 34 read along with Section 302
of the Indian Penal Code.

KM Nanavati

vs

St of Maharashtra Air 1962 SC 605(28)

In the said case Exception 1 of section 300 IPC is not applicable because it was held in Nanavati's case
that the fatal blow should be clearly traced to the influence of passion arising from that provocation and
not after the passion had cooled down by lapse of time or otherwise giving room and scope for
premeditation and calculation. In the case we are concerned the accused had enough time and state of
mind to brought the lathi's and to share with each other. These happenings of the incident indicates that
there was no grave and sudden provocation because sharing lathi's indicates that the accused brought
the lathi's metres away from place of incident and then sharing them with his brother signals that he
had proper state of mind what is he doing . If we would not have proper state of mind ,he would not
have went inside the house to get lathi's and than share the lathi's with other accused.

•PRAYER

IN LIGHT OF THE FACTS PRESENTED, ISSUES RAISED,ARGUMENTS

AND AUTHORITIES CITED THE COUNSEL ON BEHALF OF
RESPONDENT HUMBLY PRAY BEFORE THIS HON'BLE COURT THAT
IT MAY BE PLEASED
TO DECLARE THAT THE JUDGMENT GIVEN BY THE SESSIONS
COURT IS APPROPRIATE;

TO CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER

SECTION 34 OF INDIAN PENAL CODE ALONG WITH SECTION 302
OF INDIAN PENAL CODE.