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TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3-4

INDEX OF AUTHORITIES 5-6

● LEGISLATION 5
● CASES REFERRED 5
● BOOKS REFERRED 6
● LEGAL DATABASES 6
● IMPORTANT DEFINATIONS 6

STATEMENT OF JURISDICTION 7

STATEMENT OF FACTS 8-9

ISSUES ARAISED 10

SUMMARY OF PLEADINGS 11-12

PLEADINGS 12-26

1. Whether Sanjay Sharma had committed an offence under Section 326A r/w

Section 34 of IPC, 1860? 12

2. Whether Sanjay Sharma had committed an offence under section 302 of IPC? 17

3. Whether there exist common intention between the accused Sanjay and

Mahesh?

19

4. Whether the state is justified for seeking permission for addition of charge u/s

366 of IPC? 23

PRAYER 26

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LIST OF ABBREVIATIONS

AC Appeal Cases

A.I.R All India Reporters

All Indian Law Reports Allahabad series

A.P Andhra Pradesh

Art. Article

BLJ Bombay Law Journal

Bom LR Bombay Law Reporter

Cr. LJ Criminal Law Journal of India

CrPC Criminal Procedure Code

DPs Directive Policy

Edn. Edition

FRs Fundamental Rights

Guj Gujarat

Hon‟ble Honorable

IPC Indian Penal Code

Jul July

Ors. Others

QBD Queen‟s Bench Division (Eng)

Pat Indian Law Reports Patna series

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r/w Read with

S Section

SC Supreme Court

SCR Supreme Court Reporters

Sec. Section

TLR Times Law Reports (Eng)

U.P Uttar Pradesh

u/s Under section

V. Versus

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INDEX OF AUTHORITIES

LEGISLATIONS

1. INDIAN PENAL CODE,1860.

2. CODE OF CRIMINAL PROCEDURE,1973.

CASES REFFERED

1. Sumer Singh v. Surajbhan Singh & others 2014 SCC 9658

2. Guru Basavaraj v. State of Karnataka SLP 9132 OF 2011
3. State of Himachal Pradesh v. Vijay Kumar (2019) SCC 2019
4. Nandu Rastogi v. State of Bihar 1299 and 1300 of 2001
5. Suresh vs. State of U.P. (Supra) 1981 AIR 1122, 1981 SCR (3) 259
6. Om Prakash vs. State of Punjab 1961 AIR 1782, 1962 SCR(2) 254
7. State of Assam vs. AbinashDutta CriLJ 400
8. Rajesh Kumar vs. Dharamvir 1997
9. Machhi Singh v State of Punjab 1983 AIR 957, 1983 SCR(3) 413
10. Achok Debbarma vs. State of Tripura 2014 SCC 1875
11. Kamal Kishore v. State (Delhi Administration) 1997 CriLG 2106 BENCH- MEHRA
12. Barendra Kumar Ghosh v. King Emperor, AIR 1924 Cal545
13. William Stanley v. State of Madhya Pradesh, 1956
14. Khacheru Singh v. State of U.P AIR 1956 SC 546, 1956 criLJ 950
15. State of Punjab v. Harjagdev Singh AIR 444 1984 SCR(2) 50
16. Gabbu v. State of M.P 791 OF 1998

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BOOKS REFERRED

● V.N.SHUKLA,CONSTITUTIONOFINDIA(12THED.,2013).
● DR.D.D.BASU,CONSTITUTIONALLAWOFINDIA,(8THED.,2009).
● P.M.BAKSHI,THECONSTITUIONOFINDIA,(14THED.,2017).
● C.KTAKWANI,LECTURESONADMINISTRATIVELAW,FOURTHEDITION,2007.
● KDGAUR,TEXTBOOKONINDIANPENALCODE,SIXTHEDITION,2018.
● UNIVERAL’SCRIMINALMANUAL,2017EDITION.
● SHAILENDERMALIK,THEINDIANPENALCODE,TWENTYFIFTHEDITION,2011.
● RATANLALANDDHIRAJLAL,THEINDIANPENALCODE,THIRTHYFOURTHEDITI
ON, 2012

LEGAL DATABASES

● WWW.YOURARTICLELIBRARY.COM
● 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
● WWW.SCCONLINE.CO.IN
● WWW.WESTLAW.COM
● WWW.NCBI.NLM.NIH.GOV

IMPORTANT DEIFINITION:
1. The appellant for the purpose of this memorandum shall be the SANJAY SHARMA
AND MAHESH YADAV.
2. The respondents for the purpose of all the issue shall be STATE.

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STATEMENT OF JURISDICTION

THE APPELLANT HAS FILED AN APPEAL TO THE HON'BLE HIGH COURT

OF GAUHATI TO REVIEW THE JUDGMENT PASSED BY THE SESSIONS
COURT OF GAUHATI.

THE HON'BLE HIGH COURT HAS THE JURISDICTION TO HEAR THE

MATTER UNDERSECTION 374(2) OF THE CRIMINAL PROCEDURE
CODE, 1973.

SEC.374(2) OF THE CRIMINAL PROCEDURE CODE,1973 READS AS FOLLOWS:

"374.APPEALS FROM CONVICTION

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.

4. When an appeal has been filed against a sentence passed under section 376, section 376A,
section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB
or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of
six months from the date of filing of such appeal.

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STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon‟ble Court the facts of the case are
summarized as follows:

BACKGROUND OF THE CASE.

1) Seema a 22-year-old girl had secured a nursing job with the Gauhati Medical College
and Hospital (GMCH).
2) Sanjay Sharma (age 26) was a hotel management graduate and despite his best efforts
was unemployed.
3) Sanjay parents often taunt him about his failures to get a job despite completing his
education and always praised Seema because of his career.

HATE INCITED BETWEEN SEEMA’S PARENTS AND SANJAY SHARMA.

1) Sanjay used to confide in Mahesh, (age 28) who was his childhood friend and used to
tell him about how Seema once rejected his marriage proposal and also how his parents
had ill-treated him for not being able to secure a job.
2) Apart, they were in all praises for Seema as she could fetch a very good job in a
government hospital.
3) Seema‟s parents also ill-treated him and beat him brutally and asked him to leave.

ACTION ABETTED BY MAHESH

1) Mahesh treated Sanjay as his younger brother and therefore could not bear the pain of
Sanjay and suggested him that he should find Seema alone and pressurize her not to accept
the job offer and to accept his marriage proposal.
2) He, further, suggested Sanjay to threaten Seema with a bottle of acid in order to
pressurize her for the same.
3) Sanjay, who was initially reluctant agreed to the plan on the condition that no harm will
be caused to Seema and the bottle of acid will only be used as a tool to convince her for
compliance to their wishes.
4) Sanjay procured a bottle of acid on May 31, 2022 as soon as he came to know that
Seema was leaving for Gauhati to join her new nursing job and he boarded, along with
Mahesh, the same train taken by Seema and her family members to Gauhati.

5) On June 1, 2022, when Seema was getting down from Rajdhani Express from Siliguri at
the Guwahati Railway Station chaos was created between them and Mahesh accidentally
spill acid on her.

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6) Seema was taken to the hospital by her family members. The doctor immediately
conducted the surgeries and opined that the injuries were grievous.
7) Seema died on June 2, 2022.
8) Mahesh absconded and was declared as proclaimed offender while Sanjay was arrested
by police from his home at Siliguri.

9) After investigation, he was put to trial before the Sessions Court, at Guwahati where he
pleaded not guilty and claimed trial.
10) The Sessions Court held that Sanjay could not explain the scars which he had suffered
as few drops of acid fell on his hands.
11) The Sessions Court convicted Sanjay for the offences punishable under sections 302
and 326A of Indian Penal Code 1860 and awarded him life imprisonment and seven years
imprisonment and a fine of Rs.5000/- respectively for the offences. Both the sentences
were to run concurrently.

MATTER BEFORE THIS COURT

1) Sanjay, aggrieved by the aforesaid judgment, appealed before the High Court seeking
acquittal from the charges.
2) Under the circumstances of the case, the Sessions Court had wrongly held Sanjay liable
under Sec. 326A, IPC, by invoking Section 34 IPC,1860 as no common intention to
commit the offence of acid attack under Sec. 326A could be proved.

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ISSUES RAISED

ISSUE I

WHETHER SANJAY SHARMA HAD COMMITTED AN OFFENCE UNDER

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

ISSUE II

WHETHER SANJAY SHARMA HAD COMMITTED AN OFFENCE UNDER

SECTION 302 OF IPC?

ISSUE III

WHETHER THERE EXIST COMMON INTENTION BETWEEN ACCUSED

SANJAY SHARMA AND MAHESH 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 PLEADING

ISSUE I: WHETHER SANJAY HAD COMMITTED AN OFFENCE UNDER SECTION

326A R/W SECTION 34 OF IPC, 1860?
This is most respectfully submitted by the Council for Respondent before this Hon'ble
Court that the Accused must be Convicted under Sec.326A R/W Sec. 34 of IPC and the decision
of the Session‟s Court regarding Compensation must be enhanced in the present Case as
compensation to victims of acid attacks is of vital importance exorbitant medical costs are often
involved. The Counsel humbly submits before this Hon'ble Court that the life imprisonment
must be sentenced to the Appellant in the present Case. As the victim has suffered perpetual
torture,permanent damages and effects of injuries of acid burn will remain for rest of her life.
Therefore, Respondent should be sentenced to life imprisonment in interest of
Justice.acquitting respondent under charge of Section 326A r/w Sec. 34 of IPC suffers from
serious infirmities which leads to miscarriage of justice and thus the same must be negated by
the Court in the interest of Justice.

ISSUE II: WHETHER SANJAY IS LIABLE UNDER SECTION 302 OF IPC?

It is humbly submitted before the Hon'ble high court that the accused must be
Convicted under sec. 302 of IPC the accused-1 (Sanjay) threw the acid on victim
with the help of accused-2 (Mahesh) which lead to death of a victim because
of grievous injuries to victims.

ISSUE III: WHETHER THERE EXIST COMMON INTENTION BETWEEEN

ACCUSED SANJAY AND MAHESH AS PER THE SECTION 34 OF IPC, 1860?

It is humbly submitted before the Hon‟ble High Court that there existed a clear common
intention between Sanjay and Mahesh as per Section 34 of IPC, 1860. Both accused were
pre planned and boarded the train along with the victim with the intent to do the crime.

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ISSUE IV:WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION

FOR ADDITION OF CHARGE U/S 366 OF IPC?

The Counsel humbly submits before this Hon'ble Court that the additional charge under Section
366 of IPC, must be framed against the Appellant with the earlier charges framed. According
to Section 216 of Cr PC, any Court may alter any charge at any time before the Judgment is
pronounced.
Moreover, Respondent is fulfilling essential ingredients of Section 366 of IPC by compelling
victim to marry him against her will by dragging victim into the car. Thus, Court must allow
additional charge to be framed under Section 366 of IPC so that victim can get justice.

PLEADING

ISSUE I : WHETHER SANJAY HAD COMMITTED AN OFFENCE

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

It is humbly submitted before the Hon'ble high court that the accused must be convicted under
sec.326B R/W sec. 34 of IPC. The accused-1(SANJAY) threw acid on victim with help of
accused-2 (MAHESH). The accused-2 help the accused-1 for open the acid bottle.

According to the facts, the accused-1(SANJAY) used to confine in accused-2 (MAHESH),

who was his childhood friend and used to tell him about how SEEMA once rejected his
marriage proposal and how his parents had ill-treated him for not being able to secure a job.
The accused-2 treated accused-1 as his younger brother and therefore could not bear the pain
of accused-1 and suggested him that he should find victim (SEEMA) a lesson. He further
suggested SANJAY threaten SEEMA with bottle of acid in order to pressurize her for the same.
The accused-1 (SANJAY) procured a bottle of acid on May 30,2022 as soon as he come to
know that SEEMA was leaving for Guwahati to join her new nursing job and he boarded along
with accused-2(MAHESH). On June 1,2022 when SEEMA was getting down from Rajdhani
express at the Guwahati Railway Station. That accused-1 alleged flung acid on her. It was

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accused-2(MAHESH) who helped accused-1(Sanjay)in opening the bottle and accused-2

(SANJAY) allegedly threw the acid on her face. Both accused-2 and accused-1 fled away easily
covering their faces.

326 A. VOUNTARILY CAUSING GREVIOUS HURT BY USING ACID ETC.:

Whoever causes permanent or partial damage or deformity to, or burns 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:

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.

Explanation 1. – For the purposes of ... this section, "acid" includes any substance which has
acidic or corrosive character or burning nature, that is capable of causing bodily injury leading
to scars or disfigurement or temporary or permanent disability.

Explanation 2. – For the purposes of ... this section, permanent or partial damage or deformity
shall not be required to be irreversible.

In the case of Sumer Singh v. Surajbhan Singh & others1, while elaborating on the duty of
the Court while imposing sentence for an offence, it has been ruled that it is the duty of the
court to impose adequate sentence, for one of the purposes of imposition of requisite sentence
is protection of the society and a legitimate response to the collective conscience. The
paramount principle that should be the guiding laser beam is that the punishment should be
proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to
the society which has reposed faith in the court of law to curtail evil. While imposing the
sentence it is the court's accountability to remind itself about its role and the reverence for the
rule of law. It must evince the rationalized judicial discretion and not an individual perception
or a moral propensity. The Court further held that if in the ultimate eventuate the proper

1. Sumer Singh Vs. Surajbhan Singh and Others 2014 SCC 9658

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sentence is not awarded, the fundamental grammar of sentencing is guillotined and law does
not tolerate it; society does not withstand it; and sanctity of conscience abhors it. It was
observed that the old saying "the law can hunt one's past" cannot be allowed to be buried in an
indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to
rule. The conception of mercy has its own space but it cannot occupy the whole
accommodation. While dealing with grant of further compensation in lieu of sentence, the
Court ruled:-
"We do not think that increase in fine amount or grant of compensation under the Code would
be a justified answer in law. Money cannot be the basis. It cannot assume the centre stage for
all redemption. Interference in manifestly inadequate and unduly lenient sentence is the
justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim
and, eventually, to the cry of the society."
In the case of Guru Basavaraj v. State of Karnataka 2"held thus: - "In operating the
sentencing system, law should adopt the corrective machinery or deterrence based on factual
matrix. The facts and given circumstances in each case, the nature of the crime, the manner in
which it was planned and committed, the motive for commission of the crime, the conduct of
the accused, the nature of weapons used and all other attending circumstances are relevant facts
which would enter into the area of consideration. We also reiterate that undue sympathy to
impose inadequate sentence would do more harm to the justice dispensation system to
undermine the public confidence in the efficacy of law. It is the duty of every court to award
proper sentence having regard to the nature of the offence and the manner in which it was
executed or committed. The courts must not only keep in view the rights of the victim of the
crime but also the society at large while considering the imposition of appropriate punishment."
In the said case, the Court ultimately set aside the sentence imposed by the High Court and
restored that of the trial Judge, whereby he had convicted the accused to suffer rigorous
imprisonment for three years. So therefore the punishment prescribed is minimum
imprisonment of ten years which can extend to imprisonment for life as well as a fine. The fine
should be just and reasonable to meet the medical expenses for the treatment of the victim.
Further, the fine should be paid directly to the victim.
In a case called State of Himachal Pradesh v. Vijay Kumar (2019)3, the two accused were
initially directed by the Himachal Pradesh High Court to pay Rs. 25,000 in fine along with the

2. Guru Bsavaraj Vs. State of Karnataka SLP 9132 of 2011

3.State of Himachal Pradesh Vs. Vijay Kumar SCC 2019
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punishment of five years rigorous imprisonment. The Supreme Court however held that no
leniency could be shown towards the accused because the victim had suffered emotional
distress as well as pain that could not be compensated by sentencing the accused or by any
more compensation. Yet, it held that both the accused had to pay the victim Rs 1,50,000
additionally within six months. SECTION 34. Acts 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.
In Nandu Rastogi v. State of Bihar4, To attract Section 34 IPC it is not necessary that each
one of the accused must assault the deceased. It is enough if it is shown that
they shared a common intention to commit the offence and in furtherance there of each one
played his assigned role by doing separate acts, similar or diverse. The facts of this case are
eloquent and the role played by Bal Mukund Rastogi of preventing the
prosecution witnesses from going to the rescue of the deceased was the role played by
him with a view to achieve the ultimate objective of killing Shankar Rastogi. We,
therefore, entertain no doubt that all the five persons who came to the shop of the
informant had a common intention to commit the murder of Shankar Rastogi and they
acted pursuant to a pre arranged plan. The facts clearly are consistent only with the
hypothesis of their acting in furtherance of a common intention. They have, therefore, rightly
been convicted with the aid of Section 34 IPC.
In Suresh vs. State of U.P. (Supra)5 wherein it has been observed that to attract Section 34
IPC two postulates are indispensable:
(1) The criminal act (consisting of a series of acts) should have been done, not by one person,
but more than one person.
(2) Doing of every such individual act cumulatively resulting in the commission of criminal
offence should have been in furtherance of the common intention of all such persons. He also
drew our attention to the discussion in the judgment about the difference between a "common
intention" and "similar intention". It has been observed by this Court that to attract the
applicability of Section 34 of the Code the prosecution is under an obligation to establish that
there existed a common intention which requires a pre-arranged plan, because before a man

4. Nandu Rastogi Vs. State of Bihar 1299 and 1300 of 2001

5. Suresh Vs. State of U.P (Supra) 1981 AIR 1122, 1981 SCR (3) 259
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can be vicariously convicted for the criminal act of another, the act must have been done in
furtherance of the common intention. The Court observed: "Section 34 of the Indian Penal
Code recognizes the principle of vicarious liability in criminal jurisprudence. It makes a person
liable for action of an offence not committed by him but by another person with whom he
shared the common intention. It is a rule of evidence and does not create a substantive offence.
The section gives statutory recognition to the commonsense principle that if more than two
persons intentionally do a thing jointly; it is just the same as if each of them had done it
individually. There is no gainsaying that a common intention presupposes prior concert, which
requires a prearranged plan of the accused participating in an offence. Such preconcert or
preplanning may develop on the spot or during the course of commission of the offence but the
crucial test is that such plan must precede the act constituting an offence. Common intention
can be formed previously or in the course of occurrence and on the spur of the moment.

It is submitted that accused 1 &2 have common intention to commit the crime. The
accused-1 used to confine in accused-2, who was his childhood friend and used to tell him
about how victim once rejected his marriage proposal and how his parents had ill-treated
him for not being able to secure a job. The accused-2 treated accused-1 as his younger
brother and therefore could not bear the pain of accused-1 and suggested him that he
should find Seema alone and pressurise her not to accept the job offer and to accept his
marriage proposal On MAY30, 2022 accused-1 procured a bottle of acid. On JUNE 1,
2022 when victim was getting down from Rajdhani express at GAUHATI railway station.
The accused-1 threw the bottle of acid on the face of victim and accused-2 help the
accused -1 for opening the acid bottle. Before the incident accused-2 abetted the accused-1
for acid attack on victim.
In the present case Hon'ble session court awarded him life imprisonment and seven years
imprisonment and a fine of Rs. 5000- respectably for the offence. Both the sentence were to
run concurrently. I request to Hon'ble high court to awarded death penalty to both accused.

ISSUE II: WHETHER SANJAY IS LIABLE UNDER 302 OF IPC?

It is humbly submitted before the Hon'ble high court that the accused must be
convicted under sec. 302 of IPC the accused-1 (Sanjay)threw the acid on victim with
the help of accused-2 (Mahesh)which lead to death of a victim because of grievous

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injuries to victims.
According to the facts, the accused-1 (Sanjay)I used to confined in accused-2
(Mahesh), who was his childhood friend and used to tell him about how Seema once rejected
his marriage proposal and also how his parents had ill-treated him for not being able to
secure a job. The accused-2 treated accused-1 as his younger brother and therefore could not
bear the pain of accused-1 and suggested him that he should find victim (Seema) alone and
teaches her a lesson. He further, suggested Sanjay to threaten Seema with bottle of acid in
order to pressurize her for the same. The accused-1 (Sanjay)procured a bottle of acid on April
30,2019 as soon as he come to know that Seema was leaving for Delhi to join her new
nursing job and he boarded along with accused-2(Mahesh). On June 1,2022whenSeema was
getting down from Rajdhani express at the GAUHATI Railway Station. The accused-1
alleged flung acid on her. The victim (Seema) was taken to the hospital by her family
members.
The doctor immediately conducted the surgeries and opined that the injuries were grievous.
FIR was lodged. Statement of Seema was recorded. The death was caused during treatment
because of grievous injuries with acid.
The Indian Penal Code, 1860, states that a person committing murder should be given severe
punishment. Murder is an evil act. No one has the right to take another person‟s life. For this
serious crime, the murderer should be punished with life imprisonment or the death penalty.
Killing someone is a terrible thing that a person does. Section 302 of the Indian Penal Code
deals with the punishment for murder. It prescribes the punishments that are awarded to the
offenders for specific crimes that they commit. The main point of consideration for the Court
is the intention and motive of the accused in murder cases.
SECTION 300. Murder. Except in the cases hereinafter excepted, culpable homicide is
murder,

Firstly: If the act by which the death is caused is done with the intention of causing death, or

Secondly: If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or
Thirdly: If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or
Fourthly: If the person committing the act knows that it is so imminently dangerous that it
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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.
In the case of Om Prakash vs. State of Punjab6 the essentials of Murder was
discussed, which are already discussed above.
Also, in the case of State of Assam vs. Abinash Dutta7, Court stated that a vindictive or
malicious act by a person implies that the act has been done with the motive of taking
revenge and this was happened in the case in hand.

SECTION 302. Punishment for murder.-whoever commits murder shall be punished with
death or [imprisonment for life], and shall also be liable to fine.

Similarly in case of Rajesh Kumar vs. Dharamvir8, it was held by the Hon'ble court that all
the conditions of murder were satisfied and the accused was convicted and sentenced to
imprisonment.
In the case of Machhi Singh v State of Punjab9, 3-Judge Bench observed that in
rarest of the rare cases when collective conscience of the community is shocked to
such an extent that it expects infliction of the death penalty from the holders of the
judicial power, the Court said that the community may entertain such a sentiment in
the following circumstances:
● The manner of the commission of the offence
● The motive for the commission of the offence
● The societal impact of the offence on the whole
● Facts and circumstances leading to the offence
● The vulnerability of the members of the society at the hands of the offender
● Magnitude of crime
● The personality of the victim of the offence

6. Om Prakash vs. State of Punjab 1961 AIR 1782, 1962 SCR (2) 254
7.The State Vs. Abinash Dutta 1982 CriLJ400
8. Rajesh Kumar vs. Dharamvi 1997
9. Machhi Singh v State of Punjab 1983 AIR 957 ,1983 SCR (3) 413

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In the case of Ashok Debbarma vs. State of Tripura10, It ruled that for awarding
death penalty the crime test has to be fully satisfied and there should be no mitigation
circumstances favoring the accused, over and alone the rare of rarest test.
Punishment to co-accused in a murder case
The person or persons who are accused of the same crime are called co-accused and shall be
awarded the same punishment. According to Section 30 of the Indian Evidence Act, 1872, the
accused‟s statement cannot be used against the co-accused. The confession of the accused
must be supported by proper evidence since it will affect both of them. The accused and co-
accused should be awarded similar punishments to avoid inequality and injustice.

In the case of Kamal Kishore v. State (Delhi Administration)11, 1972, the Delhi High
Court held that the statement of the accused that leads to discovery, or the informatory
statement amounting to a confession of the co-accused, cannot be used against the accused.

It is submitted that On June1, 2022 accused-1 threw the acid on the face of victim (Seema)
at Gauhati Railway Station when she was getting down from Rajdhani Express. Because of
that acid attack the victim suffered many grievous injury. F.I.R was lodged and the statement
of victim was reordered during the treatment the victim died because of grievous injury.

ISSUE: III WHETHER THERE EXIST COMMONINTENTION

BETWEENMAHAESH YADAV AND MAHESH AS PER THE
SECTION 34 OF THE IPC, 1860?

It is humbly submitted before the Hon‟ble High Court that there existed a clear common
intention between Sanjay and Mahesh as per Section 34 of IPC, 1860. Both accused were
pre planned and boarded the train along with the victim with the intent to do the crime.It is
a well-established principle of criminal law that a person is solely accountable for crimes
committed by himself and not for conduct committed by others. In other words, the main

10. Ashok Debbarma vs. State of Tripura 2014 SCC 1875

11. Kamal Kishore v. State (Delhi Administration) 1997criLG 2106 BENCH: MEHRA

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concept of criminal culpability is that the individual who actually commits an offence bears
the primary responsibility, and only that person may be declared guilty and punished in line
with the law. Opposing this general rule, Section 34 of the Indian Penal Code, 1860 (IPC)
states that when criminal conduct is committed by numerous people in pursuit of a „common
intention‟, each of them is accountable for the crime in the same way as if it were committed
by him alone. This clause, which establishes a principle of shared accountability in the
commission of a criminal act, is an exception to a fundamental canon of criminal law. The
core of joint culpability is found in the existence of a shared goal energizing the accused,
which leads to the commission of a criminal act in pursuit of that intention.

Common Intention

Before moving any further, one must understand the connotation of the term „common
intention‟. A common intention is defined as a predetermined plan acting in concert in
accordance with the plan. It must be proven that the criminal act was committed in
coordination with a pre-planned scheme. It exists prior to the commission of the act in time,
but it does not have to be a large gap. Sometimes common intentions can be created on the
spot if the gap is not too long. The primary aspect is a pre-planned strategy to carry out the
plan for the intended result. Each of such individuals shall be held accountable for an act
performed in pursuit of a shared intention as if the conduct were performed by a single
individual. Common intention does not imply that numerous people have the same intention.
To establish a common intention, each of them must be aware of and embrace the objective
of the others.

Section 34 IPC

According to the broad principles of criminal culpability, the individual or person who
commits the offence has the primary responsibility, and only that person may be found guilty
and punished for the crime committed. However, the IPC has several clauses that involve the
notion of „common intention‟, which is present in criminal law jurisprudence across the
world. This theory allows an individual to be held criminally responsible for a crime
committed by another individual if the act was undertaken as part of a common purpose
agreed upon by the accused and the other individual(s). One such section is Section 34 of the
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IPC.

Section 34 of the IPC 1860 stipulates that when multiple people commit criminal conduct in
pursuit of a common intention, each of them is accountable for the act in the same way as if it
were committed by him alone. This clause, which establishes „joint culpability‟ for an act, is
an exception to a fundamental principle of criminal law. The core of joint culpability is the
presence of a common intention in all parties concerned, which leads to the commission of
criminal conduct in pursuit of that common goal.

Essentials constituting Section 34 IPC

Section 34, like any other crime, has several requirements that must be met in order to find a
person accountable for joint culpability. These are the following:

1. A criminal act committed by multiple people

The most significant need is that criminal conduct be committed and that it be done by
numerous people. It is necessary to commit or refrain from criminal conduct. The deeds
undertaken by various confederates in criminal activity may differ, but all must collaborate or
engage in the illegal business in some way. The core of Section 34 is the simultaneous
agreement of the minds of those involved in the illegal activity to achieve a specific or
intended goal. Here in this case accused-1 threw acid on Seema while accused-2 who opened
the acid bottle and gave to the Sanjay hence it is clearly visible that the Criminal act was done
by more than one person. Therefore the 1st Essential is satisfied.

2. The shared intent of all individuals to perform the unlawful act

As previously noted, the core of joint culpability under Section 34 of the IPC is the existence
of a common purpose to commit a criminal act in pursuit of a common goal shared by all
members of that group. The phrase “common intention” indicates a prior concert or meeting
of minds, as well as the participation of all members of that group. The activities performed
by various members of that group may range in degree and type, but they must all be

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motivated by the same common objective. In this case the intent has been shared before the
crime has been committed. That is Mahesh the co accused who gave the idea to buy the acid
bottle and asked Sanjay to pressurize her to not to accept the job and accept the marriage
proposal. And he must be well aware that Sanjay will pour acid on the victim. Since the
intention has been shared the 2nd essential is also satisfied.

3. All people engaged in the commission of the act (in furtherance of that shared
intention)

A criminal act committed by the entire group is required to establish joint culpability. It is
critical that the court determine some illegal conduct was committed with the group‟s
cooperation in pursuit of the common intention. The individual who initiates or assists in the
conduct of the crime must physically do an act to facilitate the commission of the real
(planned) crime. In this case as soon as Mahesh opened the acid bottle Sanjay threw the
acid on the victim which resulted to Death. Therefore in furtherance of common intention
the act has been committed. So 3rd essentials is also satisfied.

Barendra Kumar Ghosh v. King Emperor, 192512 in which two people demanded money
from a postman as he was counting the money, and when they shot from a handgun at the
postmaster, he died on the spot. All of the suspects fled without taking any money. In this
instance, Barendra Kumar claimed that he did not shoot the gun and was only standing by,
but the courts rejected his appeal and found him guilty of murder under Sections 302 and 34
of the Indian Penal Code. The Court further held that it is not required that all participants
participate equally. It is possible to accomplish more or less. However, this does not mean
that the individual who did less should be exempt from blame. His legal responsibility is the
same.

In the case of William Stanley v. State of Madhya Pradesh, 195613, the accused was a 22-

12. Barendra Kumar Ghosh v. King Emperor, 1925 AIR 1924 Cal 545
13. William Stanley v. State of Madhya Pradesh, 1956

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year-old man who was in love with the deceased‟s sister. The deceased did not appreciate
hiscloseness. On the day of the incident, the deceased and the accused had a disagreement,
and the accused was ordered to leave the house. Later, the accused returned with his younger
brother and summoned the deceased‟s sister. The deceased brother appeared instead of the
sister. A furious exchange of words ensued. The accused smacked the victim across the
cheek. The accused then took his younger brother‟s hockey stick and delivered a hit to the
deceased‟s head, fracturing his skull. Ten days later, the deceased died in the hospital.
According to the doctor, the damage was severe enough to result in death. Both the accused
and his co-accused brother were charged with murder under IPC sections 302 and 34.

In the case of Khacheru Singh v. State of U.P14, 1955, numerous people assaulted a man
with lathis as he walked across a field. The man escaped them, and when they caught up with
him, they assaulted him. It was determined that the facts of the case were adequate to
establish that the accused parties shared a common purpose in conducting the criminal
offence. As a result, the most important thing here is to demonstrate the shared intent, which
may be done in any way.

ISSUE: IV WHETHER THE STATE IS JUSTIFIED FOR SEEKING

PERMISSION FOR ADDITION OF CHARGE U/S 366 OF IPC?

This is most respectfully submitted by Counsel for the Respondent before this Hon'ble Court
that additional charge u/s 366 of IPC, must be framed to the charges earlier framed against
Appellant. That according to Section 216 of Code of Criminal Procedure (here after called
as CrPC), any court may alter or add to any charge any time before the judgment is framed.

The Counsel humbly submits that the charge u/s 366 may be added to the charges framed
earlier.
This submission is two folds-
● charges can be added at any time before the judgment pronounced.
● All the ingredients of Section 366 of IPC are fulfilled.

14. Khacheru Singh v. State of U.P AIR 1956 SC 546, 1956 criLJ 950

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Charges can be added at any time before the judgment pronounced- It is humbly submitted
that according to Section 216(1) of Code of Criminal Procedure (hereinafter CrPC), any court
may alter or add to any charge at any time before judgment is pronounced1."

In State of Punjab v. Harjagdev Singh15 court held that if all of the section is complied
with then an error or irregularity in framing the charge will not upset the trial because no
inquiry took place in the defense on merits. His acquittal on this ground was not proper.

Adding charge on later stage and not on former stage cannot be a ground for refusal to frame
additional charge. Court can add or alter any charge before the final judgment is pronounced,
by giving an opportunity to accuse to take appropriate defense against additional charge
framed.³
In present case charge u/s 366 of IPC remained unframed, thus, court must allow the addition
to the charge u/s 366 of IPC, and so that victim can get justice.

Further it is humbly submitted before this Hon'ble Court that all the essential ingredients of
charge u/s 366 of IPC are fulfilled against the accused on the following submission:

a. Kidnapping or abducting of any women.

b. The act must done:
i. with that she may be compelled to marry any person against her will; or
ii. knowing that she will be so compelled; or
iii. in order that she may be forced or seduced to illicit intercourse; or
iv. Knowing it to be likely that she will be forced or seduced.

4.6 In case of Gabbu v. State of M.P16. this court held that unless the prosecution proves that
the abduction is for purpose mentioned in Sec. 366 of IPC, the Court cannot hold accused
guilty.

15. State of Punjab v. Harjagdev Singh 1984 AIR 444 1984 SCR(2) 50
16. Gabbu v. State of M.P 791 OF 1998

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In the instant conduct of accused, and according to various judgments, the accused must be
held guilty as it is clear that he threatened victim with bottle of acid and tried to compel her to
marry him According to their plan they follow her and when they saw her alone on a
lonely place went to her and tried to forcefully take her to the lonely place. When the victim
resisted herself, they threw acid on her and fled.

Therefore, it is clearly incurred from the facts that Sanjay wanted to marry the victim. Thus,
his intentions were to compel her to marry him. In many occasions the victim had showed
Sanjay that she would not like to marry him. He also tried to get intimate with her by
touching her in an inappropriate manner. In spite that incident victim started avoiding Sanjay.
Though despite of ignorance Sanjay wanted to marry victim against her will and without her
consent clearly attracts the provisions of this section.

It cannot be a ground that charge is added on later stage not on former stage. Court can even
add a charge without framing proper charge under the appropriate section of law and without
affording any opportunity to accuse to take appropriate defense against additional charge.
In present case charge u/s 366 of IPC remained unframed, thus, Court must allow the addition
to the charge u/s 366 of IPC, and so that victim can get Justice.

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PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT
HUMBLY PRAYS THAT THE HON’BLE HIGHCOURT BE PLEASED:

1. To declare that Mr. Sanjay Sharma is guilty of the crime of causing grievous hurt by
use of acid and stalking and enhance the punishment for the same.

2. To declare that there is common intention existed between Sanjay Sharma and
Mahesh.

3. To declare that Mr. Sanjay Sharma is guilty of section 302 of the Indian penal code
1872 that is murder.

4. To declare that permission shall be given to the State to add a charge of Section366,
IPC against the accused.

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 RESPONDENT AS IN DUTY BOUND

SHALL EVER PRAY.

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