TEAM CODE-

IN THE HON’BLE HIGH COURT OF ORISSA

CRIMINAL APPELLATE JURISDICTION

ABHISEKH …...….APPELLANT

VERSUS

STATE OF ODISHA ……...RESPONDENT

FOR THE OFFENCES CHARGED UNDER SECTION 302 READ WITH SECTION
34 OF THE INDIAN PENAL CODE 1860

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

LIST OF ABBREVIAION------------------------------------------------------------------ 02
INDEX OF AUTHORITY------------------------------------------------------------------ 03
STATEMENT OF JURISDICTION------------------------------------------------------- 04
STATEMENT OF FACTS------------------------------------------------------------------05-06
STATEMENT OF ISSUES----------------------------------------------------------------- 07
SUMMARY OF ARGUMENT-------------------------------------------------------------08
ARGUMENTS ADVANCED---------------------------------------------------------------09-23
ISSUE 1: THAT THE PETITION FILED BY THE APPELLANT IS MAINTAINABLE IN

THE HON’BLE HIGH COURT OF ORISSA----------------------------------------------------------------------------------09-11

ISSUE 2: THAT THERE IS NO COMMON INTENTION-------------------------------------------------------------------12-20

ISSUE 3: THAT THERE IS REASONABLE DOUBT OF APPELLANT’S CAUSING HOMICIDAL DEATH----21-23

PRAYER----------------------------------------------------------------------------------------24

MEMORANDUM ON BEHALF OF APPELLANT

 LIST OF ABBREVIATION

SL. NO. ABBREVIATION FULL FORM

1 & And
2 AC Appeal Cases
3 AIR All India Reporter
4 Anr. Another
5 FIR First Information Report
6 HC High Court
7 Hon’ble Honorable
8 No. Number
9 Ors. Others
10 Props. Proposition
11 SC Supreme Court
12 SCC Supreme Court Cases
13 RCR (Criminal) Recent Criminal Reports
14 BOMLR Bombay Law Reporter
15 Supl. Supplement
16 v. Versus

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-2

 INDEX OF AUTHORITY

TABLE OF CASES
SL. NO. CASE NAME CITATION
1 Jyotsana Natvarlal Ramagiya vs State Of Gujarat (2002) 2 GLR 1290

2 Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537

3 Dinesh Lal v. State of Uttarakhand, (2016) 1 SCC 590

4 Majjal v. State of Haryana (2013) 6 SCC 798 (Three-Judge Bench).

5 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735 (Three-Judge Bench)

6 Bakshish Ram v. State of Punjab AIR 2013 SC 1484

7 Mahboob Shah v. Emperor (1945) 47 BOMLR 941

8 Sheoram Singh v. State of U.P. 1972 AIR 2555, 1973 SCR (1) 939

9 Rishi Deo Pandey v. State of UP. AIR 1955 SC 331

10 Krishnan v. State of Kerala 1996 SCR (5) SUPP 405

11 Sachin Jana & Another v. State of West Bengal 2008 (2) scale 2 SC

12 R v. Mohan [1994] 2 S.C.R. 9

13 Kripal Singh v. State of U.P. AIR 1954 SC 706

14 The State of Odisha v.Banabihari AIR 2021 SC 1375 : 2021 (2) RCR

Mohapatra and Anr

15 Sadhu Saran Singh v. State of U.P. 2016 (4) SCC 357

BOOKS
THE INDIAN PENAL CODE BY RATAN LAL AND DHIRAJ LAL, 36TH EDITION, 2019
CODE OF CRIMINAL PROCEDURE BY R. V. KELKAR, 7TH EDITION, 2021
PRINCIPLES OF THE LAW OF EVIDENCE BY DR. AVTAR SINGH, 24TH EDITION,
2020

STATUTES
THE INDIAN PENAL CODE, 1860
THE CODE OF CRIMINAL PROCEDURE, 1973
THE EVIDENCE ACT, 1872

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-3

 STATEMENT OF JURISDICTION

The counsels representing the Appellant humbly submits that this memorandum is in

furtherance of the petition filed by the petitioner before the Hon’ble High Court of Orissa,

Cuttack through:

An Appeal U/S. 374(2) of the Code of Criminal Procedure

374. Appeals from convictions-

(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.

This memorandum sets forth the facts, laws and the corresponding arguments on which the

claims are based in the instant case. The appellant affirm that they shall accept any Judgment

of this Hon’ble Court as final and binding upon itself and shall execute it in its entirety and in

good faith.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-4

 STATEMENT OF FACTS

For the sake of brevity, the material facts are placed herewith in the chronological order:

INTRODUCTION

1. In this case the appellant is Abhishek and the deceased is Ashutosh.

2. They had a long-standing dispute concerning a property for around ten years.

3. Mr. Ashutosh is a habitual drinker who regularly goes to “Relax Bar” to have drink.

The owner of this Bar is Mr. Amit.

4. Mr. Ashutosh had two close friends named Mr. Abhijeet and Mr. Shyam.

BACKGROUND

1. In the night dated 5.4.2018 the deceased Mr. Ashutosh had invited his two close

friends i.e., Mr. Abhijeet and Mr. Shyam to the Bar to accompany him over drinks.

2. The deceased left that Bar in that night at 11; 30 PM with his two friends but he didn’t

reach at his home.

3. The deceased person’s dead body was found after three days of that night dated

8.4.2018 at a forested area situated in-between the Bar and the deceased person’s

home hidden under tree branches and stones.

4. As per the statement provided by Abhijeet and Shyam, they had departed Ashutosh

after proceeding for ten minutes from that Bar.

5. The Bar owner named Amit stated to have seen Abhishek drinking in that night in that

Bar and he had overheard him whispering to an unknown person who left that Bar

prior to Ashutosh’s departure. Abhishek followed after Ashutosh after his departure of

that Bar.

6. The post mortem report of the deceased Ashutosh revealed pressure abrasions with

lacerations on his chest consistent with having been run over by a vehicle and in the

consequence his spleen was ruptured and enlarged.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-5

 7. After that the motor cycle of Abhishek was found and there was presence of blood

stains on its front tire but the origin and grouping of that blood stain could not be

determined.

SESSION COURT

The accused Abhishek was tried in Session Court and was convicted u/s 302 r/w section 34 of

The Indian Penal Code, 1860 for having caused homicidal death and was sentenced to life

imprisonment.

HIGH COURT

The accused Mr. Abhishek has filed an appeal before the Hon'ble High Court of Orissa.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-6

 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE PETITION FILED BY THE APPELLANT IS MAINTAINABLE IN

THE HON’BLE HIGH COURT OF ORISSA?

ISSUE 2

WHETHER THERE WAS COMMON INTENTION?

ISSUE 3

WHETHER THERE IS ANY REASONABLE DOUBT IN CAUSING HOMICIDAL

DEATH?

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-7

 SUMMARY OF ARGUMENTS

ISSUE 1:

THAT THE PETITION FILED BY THE APPELLANT IS MAINTAINABLE IN THE

HON’BLE HIGH COURT OF ORISSA

It is most humbly submitted that the petition filed by the appellant is maintainable in the

High Court of Orissa. In this case the prima facie evidence shows that the appellant is not

guilty of any offence. But he was convicted in Session Court. As per the provision of sub-

section 2 of Section 374 of IPC he can appeal to High Court.

ISSUE 2:

THAT THERE IS NO COMMON INTENTION

It is most humbly submitted that section 34 of Indian Penal Code, 1860 deals with common

intention. The common intention or the pre-plan made among several people to do something

wrong and act done in that manner in which it was formulated comes under the ambit of

Section 34 of IPC. But in this case there is no evidence found about other persons with

Abhishek to have caused the homicidal death of the deceased.

ISSUE 3:

THAT THERE IS REASONABLE DOUBT OF APPELLANT’S CAUSING

HOMICIDAL DEATH

It is most humbly submitted that as there is no strong evidence which would directly prove

the appellant to be guilty of offence. The blood stain found on front tire of the appellant have

not been matched till now with the blood group of deceased. So, the appellant is innocent.
 MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-8

ARGUMENTS ADVANCED

ISSUE 1:

THAT THE PETITION FILED BY THE APPELLANT IS MAINTAINABLE IN THE

HON’BLE HIGH COURT OF ORISSA:

It is most humbly submitted that as per the provision of sub section 2 of section 374 of Code

of Criminal Procedure, 1973 one can make criminal appeal in the High Court if he has been

convicted in Session Court.

Before we enter into the submissions raised in this memorandum, it is useful to recapitulate

the scope and the grounds of appeal.

An appeal is not a retrial of the case. Rather, the appellate court reviews the record of the

lower court’s proceedings to determine whether there are adequate grounds to grant the

appeal. The record includes all pre-trial and post-trial motions, all evidence admitted to the

court and a word for-word transcript of the trial. In addition to analyzing the record, appellate

courts also review written briefs submitted by each party. Appellate briefs frame the legal

issues raised on appeal and set forth persuasive legal arguments to support their position. It is

a creature of statute and the power and jurisdiction of the appellate court must be

circumscribed by the words of the statute. At the same time, a court of appeal is a ‘court of

error’ and its normal function is to correct the decision appealed from if necessary, and its

jurisdiction should be co-extensive with that of the trial court. It cannot and ought not to do

something which the trial court was not competent to do.

Basic Grounds for a Criminal Appeal

Firstly when the lower court made a serious error of law (plain error); or

Secondly when the weight of the evidence does not support the verdict; or

Thirdly when the lower court abused its discretion in making an errant ruling; or
 MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-9

Fourthly the claim of ineffective assistance of counsel under the Sixth Amendment.

The appellant submits that the present case does fall in of the said grounds. As there is a

serious error of law and the weight of the evidence placed does not support the conviction

made. The learned Trial Court has erred in convicting the appellant without recording cogent

and valid reasons on proper appreciation of evidence on record. It is further submitted that the

judgment of conviction, can be interfered with as there is compelling and substantial reasons

namely, the findings and reasons recorded on the charge are patently perverse and erroneous

in law in order to prevent miscarriage of justice in the case.

The learned Trial Court has proceeded on surmises and conjectures without examining the

correctness of the findings and reasons recorded by the Trial Court on proper appreciation of

evidence on record. Therefore, appellant submitted that the impugned judgment and order

passed by the learned Trial Court is unsustainable in law and deserves to be set aside in the

interest of justice by this Court in exercise of its appellate jurisdiction

In case of Jyotsana Natvarlal Ramagiya vs State Of Gujarat court held that-

“Under Section 374(2) of Cr.P.C. 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.”

Thus, as the appellant has been convicted u/s 302 read with section 34 of Indian Penal Code,

1860 and has been sentenced to life imprisonment by Session Court he can appeal against

that order u/s 374 (2) of CrPC, 1973 and the case is maintainable in the High Court.

_____________
1. Jyotsana Natvarlal Ramagiya vs State Of Gujarat (2002) 2 GLR 1290
 MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-10

Duty of First Appellate Court u/s 386 CrPC

Where the first appeal preferred against the judgment of conviction of accused for offences

u/s 302 read with Section 149 IPC was dismissed by the High Court without proper analysis

of evidence almost in a summary way, it has been held by the Hon’ble Supreme Court that it

was the mandatory duty of the first appellate court to make proper analysis of evidence and to

consider whether trial court’s assessment of evidence and its opinion regarding conviction

deserved to be confirmed because the personal liberty of an accused is curtailed because of

conviction. First appellate court’s concurrence with the trial courts view would be acceptable

only if it is supported by reasons. Judgment may be short but must reflect proper application

of mind to vital evidence and important submissions which go to the root of the matter. See i)

Bhagwan Jagannath Markad v. State of Maharashtra (ii) Dinesh Lal v. State of

Uttarakhand (iii) Majjal v. State of Haryana

Independent analysis of evidence and recording of findings u/s 386 CrPC by first

appellate court mandatory

Appellate Court has to apply its independent mind and record its own findings by making

independent assessment of evidence irrespective of whether the appeal has been preferred

against acquittal or conviction. In the absence of independent assessment by the appellate

court (High Court), its ultimate decision cannot be sustained. See : (i) State of Gujarat v.

Bhalchandra Laxmishankar Dave (ii) Bakshish Ram v. State of Punjab

_____________
2. Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537

3. Dinesh Lal v. State of Uttarakhand, (2016) 1 SCC 590

4. Majjal v. State of Haryana, (2013) 6 SCC 798 (Three-Judge Bench).

5. State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2SCC 735 (Three-Judge Bench)

6. Bakshish Ram v. State of Punjab, AIR 2013 SC 1484

 MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-11

ISSUE 2:

THAT THERE IS NO COMMON INTENTION:

It is most humbly submitted that the doctrine of common intention postulates the imposition

of the same liability on participants in a crime as that incurred by the person who actually

committed the crime.

It is in form of adjectival doctrine that needs to be used as a conjunction to a substantive

crime. Criminal intention is said to be the highest form of blameworthiness of mind or mens

rea. Intention has a very crucial role to play in criminal law. Being the highest form of the

mental element, it is applicable to murder and the gravest form of crimes in the criminal

justice system.

The term intention has not been defined in Indian Penal Code but the section 34 of Indian

Penal Code, 1860 deals with common intention. The common intention or the pre-plan made

among several people to do something wrong and act done in that manner in which it was

formulated comes under the ambit of Section 34 of IPC. Thus, common intention is known as

a prearranged plan and acting in concert pursuant to the plan. It needs to be proved that the

criminal act was done in pursuance to the pre-arranged plan. It needs to come into being prior

to the commission of the act in point of time.

However, the gap need not be long and sometimes common intention can be developed even

on the spot or during the occurrence of the crime. The fundamental factor is the presence of a

pre-arranged plan to execute the plan for the desired result. So, each of such person will be

liable in an act done in furtherance of common intention as if the act was done by one person.

Common Intention does not imply the similar or same intention of several persons. To

constitute common intention, it is necessary that the intention of each one of them be known

to the rest of them and shared amongst them.

 MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-12

In this case there is no other person to aid the appellant to cause the death of the deceased. In

trial only it has been presumed that the death has been caused by the appellant along with a

unknown person which has not been proved yet.

The criminal liability in the cases of crime committed by several people together is

determined by the presence of means rea or the common intention or pre-arranged plan

shared among them. So, proving the presence of common intention in a case is a crucial yet

difficult task and the burden of proof is upon the prosecution. The common intention is a rule

of evidence and it needs to be proved from the facts and circumstances of the case. So, the

problem arises as to what is essential in order to prove the presence of the common intention

among the people who committed the crime and whether the presence of an overt act by the

offender is necessary in order to prove his common intention or him being part of the pre-

plan.

The section 34 of Indian Penal Code, 1860 deals with common intention:

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 the above section, the word act is referred. The word act is defined under section 33

as:

Section 33. Act, Omission. The word act denotes as well a series of acts as a single act: the

word omission denotes as well a series of omissions as a single omission.

The section 34 talks about acts done in furtherance of the common intention of all and the

liability under this section is dependent on the presence of a common intention. Interestingly,

these terms were not present in the original version of the section 34 and were incorporated

through the amendment of 1870.

Thus a furtherance of common design is a condition precedent for convicting each one of the

persons who take part in the commission of the criminal act, and the mere fact that several

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-13

persons took part in crime, in absence of common intention, is not sufficient to convict them

of that crime. This stand was taken by the court in the case of Mahboob Shah v. Emperor.

Thus, the nature of the common intention can be summed up as:

Meaning:

It basically implies that if two or more persons intentionally do a thing jointly, it is just the

same as if each of them had done it individually. The main essence of the section is that the

person must be physically present at the actual commission of the crime or in other way be

facilitating the crime like for example a case where one person is committing a crime and the

other is guarding him or wait in a car on a nearby road ready to facilitate their escape. The

essential element here is that he should be physically present at that scene of occurrence of

crime and actually be participating in the commission of the offence in one way or other at

the time crime is actually being committed. The most significant feature of this section is the

element of participation.

Objective:

The section is construed to meet a case in which it may be difficult to distinguish between the

act of individual members of a party or to prove what exact role or part was being played by

each of them. The reason behind deeming all as guilty in such cases is that even the mere

presence of accomplices gives support, encouragement and protection to the person who is

actually committing the criminal act.

Scope:

The section is restricted to common intention and doesn’t include the element of knowledge.

It need not be proved that any particular person was responsible for the commission of the

actual offence. However, it isn’t restricted just to meet a case in which it might be difficult to

_______________
 7. Mahboob Shah v. Emperor (1945) 47 BOMLR 941

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-14

distinguish between the acts of particular members of a group or association, or to prove

exactly which role or part was played by each of them. It can also be applied to cases in

which offence is committed by only one or two or three persons who all had a common

intention. The common intention to bring out a certain result might develop even at the spot

itself.

Facts to be established for common intention:

For application of section 34 of the IPC, firstly there should be two or more accused.

Secondly, the accused should share common intention to commit the offence and accordingly

participate in the offence. Lastly the offence should actually take place. In Sheoram Singh v.

State of U.P. the Supreme Court held that common intention may develop suddenly during

the course of an occurrence, but there just need to be a cogent evidence and clear proof of

such common intention. Even if common intention has been proved and no overt act has been

done by the accused, section 34 of the IPC will be attracted as the person is held vicariously

liable under this section. However, in a case where the participation of the accused in the

criminal offence has been proved and common intention is absent, the section 34 cannot be

invoked.

Mode of Determination:

To hold a person liable under Section 34, the prosecution has to establish either by direct or

circumstantial evidence, that there was plan or meeting of mind of all the accused persons for

committing the offence for which they have been charged. It might be a pre-arranged plan or

the one developed on the spur of the moment but it should necessarily be present before the

commission of the crime. In the landmark judgment of Rishi Deo Pandey v. State of UP.,the

Court for the first time held that the common intention may develop on the spot also.

___________________
 8. Sheoram Singh v. State of U.P. 1972 AIR 2555, 1973 SCR (1) 939

9. Rishi Deo Pandey v. State of UP. AIR 1955 SC 331

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-15

Common Intention is a question of fact

It is of subjective nature and can also be inferred from the facts and circumstance of the case.

This includes the conduct of the accused person acting in concert to commit the criminal

offence. Direct evidence can be available to establish common intention only in the rarest

cases. Therefore, the ultimate decision is dependent upon the inferences deduced from the

facts and circumstances of each case and the conduct of parties. Thus, even the mere presence

of the accused at the crime scene without anything in addition can bring him under the

purview of Section 34 of the Indian Penal Code. However, in order to establish the guilt, it

has to be proved that the accused did something in furtherance of common intention.

Common Intention differentiated from Same Intention

There is a clear distinction between common intention and the same intention. In order to

attract the provisions of section 34 of the Indian Penal Code, 1860, it is not sufficient to prove

that the participants in doing the criminal act had the same intention. The prosecution also

needs to prove that each of the wrong- doers must have shared the intention of the other, i.e.

they had a common intention to do that criminal act.

The phrase in furtherance of the common intention of all of section 34 postulates that the

criminal act complained against was done by one or all the accused persons in furtherance of

common intention of all of them. Thus, each person shall be liable for the result as if he had

done it himself. On the other hand, in similar intention or same intention, the criminal act is

not carried out in furtherance of a pre-arranged plan by the accused persons.

Thus, in common intention there is a prior meeting of minds before the act committed. For

example: M, N and O went to murder Y. The planned to attack him while he was returning

from an evening walk. All of them attacked and killed C. Each of them is liable under section

302 read with section 34. The persons who actually participated in committing a criminal act
and the people who facilitated to commit such act are equally liable under common intention,

i.e., under section 34.Same intention or the similar intention doesn’t mandate a pre-arranged

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-16

plan. Thus, there not be a prior meeting of minds before the act committed. For example, A

and B have enmity with Z due to different causes and different occasions. A and B come

from the different lanes and see Z at the road. A attacks and stabs Z with his knife and B

attacks Z with club. Both A and B have stabbed and beaten M to death. In this case each of A

and B is liable under section 302 separately. Thus in case where different persons participated

in the commitment of the crime, having same or similar intention, are punished in accordance

with the nature of their acts. Moreover, the persons who have facilitated in the commitment

of the criminal act are punished as abettors.

Common Intention differentiated from Common Object

The distinguishing factor between common intention and common object is that common

intention denotes action in concert pursuant to a pre-arranged plan and thereby implying a

prior meeting of the minds, but in the latter case the common object does not necessarily need

proof of prior meeting of minds or a pre-concert or pre-arranged plan. In spite of there being

a substantial difference between the two concepts under section 34 and section 149, they

overlap up to a certain extent and therefore this question has to be determined taking into

consideration the facts and circumstances of a particular case.

The difference between common intention and common object may be summed up as under:

1. Under section 34 number of persons must be more than one whereas under section

149 number of persons must be five or more.

2. Section 34 does not create any specific offence but only states a rule of evidence.

Section 149[xvii] creates a specific offence.

3. Common intention required under Section 34 may be of any type but common object

under Section 149 must be in regard to one of the objects mentioned under Section

141 of the Indian Penal code.

 4. Common intention under Section 34 requires prior meeting of minds or pre-arranged

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-17

plan but under the section 149, this element is not necessary. Even proving the mere

membership, the accused person of an unlawful assembly, at the time of commission

of the criminal offence, is sufficient.

5. Under Section 34 some active participation is necessary, especially in a crime

involving physical violence. On the other hand, active participation is not required

under Section 149 of IPC and the liability under this section arises even by reason of

merely being a member of the unlawful assembly having a common object.

Whether the presence of an overt act is necessary for proving the common intention?

Section 34 of the Indian Penal Code is merely a rule of evidence and doesn’t create an

offence of substantive nature. It is based on the principle of joint liability in doing the

criminal act. The distinguishing feature of the section 34 is the element of participation.

The liability under this section arises upon an individual for an offence committed by another

in the course of criminal act perpetrated by several persons, if such act of criminal nature is

done in furtherance of a common intention of the individuals who joined in committing the

crime. For convicting a person as vicariously liable under section 34 or the section 149 of

IPC, it isnt required to prove that each and every one of them had indulged in overt acts.

In the case of Krishnan v. State of Kerala, the court said the necessary element under this

provision is the criminal act being done in furtherance of a common intention and Section 34

did not require anything more to get attracted. The court observed that although it is true that

the court would like to know about any overt act in deciding whether the individual had

shared the common intention but the establishment of an overt act is not a sin qua non for

section 34 to operate.

The establishment of the overt act qua each of the accused helps in satisfying the court’s

mind regarding the sharing of the common intention. However, there might be cases where
_____________
10. Krishnan v. State of Kerala 1996 SCR (5) SUPP 405

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-18

the proved facts would themselves speak of sharing of common intention: res ipsa loquitur.

The statute requires the sharing of the common intention upon being present at the place of

occurrence. Thus mere distancing from the scene cannot absolve the accused.[xx]

In the case of Sachin Jana & Another v. State of West Bengal, it was held that direct proof

of common intension is seldom available and, therefore, such intention can only be inferred

from the circumstances appearing from the proved facts and circumstances of the case.

In this case there is no such facts and circumstances which would prove the intention of the

appellant to cause the death of the deceased.

The term intention has been defined in the case of R v. Mohan as that which refers to the

aim or a decision to ensure that a particular outcome is attained. So, it isn’t relevant whether

the intended outcome was likely to occur or not. The essential principle of the section 34 of

the Indian Penal Code is that if two or more individuals intentionally do an act jointly, the

position in law is similar to a case where each of them did it individually by himself. The

section 34 doesn’t postulate the common intentions of all nor does it talk about an intention

common to all. Under this section, the essence of the liability is in the existence of a common

intention that led the accused to do a criminal act in furtherance of such common intention.

In order to prove the charge of common intention under section 34, the prosecution has to

establish, either by direct or circumstantial evidence, that there was pre-arranged plan or

meeting of minds of all the accused individuals for committing the offence for which they are

charged. In Kripal Singh v. State of U.P., the Supreme Court held that a common intention

may develop on the spot after the offenders have gathered there. A previous plan is not

necessary.

_____________
11. Sachin Jana & Another v. State of West Bengal, 2008 (2) scale 2 SC
 12. R v. Mohan [1994] 2 S.C.R. 9

13. Kripal Singh v. State of U.P., AIR 1954 SC 706

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-19

The essential element here is just that it should but necessarily be before the commission of

the crime. So, a pre-arranged plan or an overt act is not necessary for proving the presence of

the common intention or sharing of a criminal intent to do the act, it may be differently

inferred from the facts and circumstances of different cases.

As per the statement given by the Bar owner Amit does not fulfil the criteria of pre-arranged

plan. The whispering of appellant to another person does not make clear about their planning

to murder anyone. He might have discussed about some other matter. So, there is no criminal

intent to do such criminal act.

In the case of Mahoob Shah v. Emperor, the Judicial Committee of the Privy Council again

had occasion to consider the scope of this section. It was held :

"Section 34, Penal Code, lays down the principle of joint liability in the doing of a criminal

act the essence of that liability is to be found in the existence of 'common intention' animating

the accused leading to the doing of a criminal action furtherance of such intention. To invoke

the aid of Section 35 successfully it must be shown that the criminal act complained against

was done by one of the accused persons in the furtherance of the common intention of all.

Intention, within the meaning of the section, implies a prearranged plan, and to convict an

accused of an offence applying this section it should be proved that the criminal act was done

in concert pursuant to the prearranged plan. It is difficult, if not impossible, to procure direct

evidence to prove the intention of an individual; in most cases it is to be inferred from his act

or conduct or other relevant circumstances of the case."

Thus, there is no common intention in this case as the other persons have not been identified

in the commission of this offence of causing homicidal death.

 MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-20

ISSUE 3:
THAT THERE IS REASONABLE DOUBT OF APPELLANT’S CAUSING

HOMICIDAL DEATH:

It is most humbly submitted that there is reasonable doubt that no offence has been

committed by the appellant. As the statement given by Amit to have seen Abhishek

whispering with unknown person does not reveal their planning of committing murder of the

deceased.

Reasonable doubt is legal terminology referring to insufficient evidence that prevents a judge

from convicting a defendant of a crime. It is the traditional standard of proof that must be

exceeded to secure a guilty verdict in a criminal case in a court of law. In a criminal case, it is

the job of the prosecution to convince the jury that the defendant is guilty of the crime with

which he has been charged and, therefore, should be convicted. The phrase "beyond a

reasonable doubt" means that the evidence presented and the arguments put forward by the

prosecution establish the defendant's guilt so clearly that they must be accepted as fact by any

rational person.

Beyond a reasonable doubt is the highest standard of proof used in any court of law and is

widely accepted around the world. It is used exclusively in criminal cases because the

consequences of a conviction are severe— a criminal conviction could deprive the defendant

of liberty or even life.

In this case the appellant, Abhishek has been convicted on the ground of suspicion. The

Session Court has convicted the appellant without conclusive proof.

Accused cannot be held convicted on the ground of suspicion, no matter how strong it is. An

accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. Supreme

Court of India upheld the judgment of the High Court and acquitted the accused convicted on

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-21

the charges of murder in the case of The State of Odisha vs. Banabihari Mohapatra and

Anr [Special Leave Petition (Crl.) No.1156/2021] presided over by the bench of Hon’ble

Justice Indira Banerjee and Justice Hemant Gupta.

In the above-cited case, “a special leave petition was filed by the state of Odisha

challenging the order by the High Court for acquitting the respondents from charges

under Sections 302/201 read with Section 34 of the Indian Penal Code (IPC).

Petitioner’s counsel argued that the High Court had committed an error by acquitting

the convicts charged for serious offences like Murder. Earlier in the case, a complaint

FIR was lodged by the complainant for the murder of her husband caused by electric

shocks. The complainant had alleged that the Accused No.1 Banabihari Mohapatra, his

son Luja, being the Accused No.2, and other accomplices committed murder of her

husband by applying an electric shock to him after administering some poisonous

substances to him. In the Trial Court, because of lack of evidence, both the accused

were acquitted u/s 235(1) of the CrPC. The post mortem doctor opined that the deceased

was intoxicated with alcohol and the death was either accidental, or homicidal, but not

suicidal. There was no conclusive evidence that the death was homicidal.

The Medical Officer found electrical wounds in the leg which were sufficient to cause

death. He opined that the injuries sustained by the deceased might have been due to

contact with live electric wire. He opined that the contact was prolonged. The injuries

were ante mortem. And no evidence of murder could be found from the testimonies of
several witnesses and the prosecution failed to prove the link between all the incidents

which happened on the day of her husband’s death. The court observed that the

prosecution miserably failed to establish the guilt of the Accused Respondents.”

___________
14. The State of Odisha v. Banabihari Mohapatra and Anr AIR 2021 SC 1375 : 2021 (2) RCR

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-22

In this case also the prosecution could not be able to find out the evidential proof which

would prove the appellant causing homicidal death.

Referring to the judgments of Sadhu Saran Singh v. State of U.P., the court stated “Before a

case against an accused can be said to be fully established on circumstantial evidence, the

circumstances from which the conclusion of guilt is to be drawn must fully be established and

the facts so established should be consistent only with the hypothesis of the guilt of the

accused. There has to be a chain of evidence so complete, as not to leave any reasonable

doubt for any conclusion consistent with the innocence of the accused and must show that in

all human probability, the act must have been done by the Accused”.

Hence, the Apex Court upheld the judgment of the Trial Court and High Court and mentioned

that there was a strong possibility that the accused, intoxicated with alcohol, might have

accidentally touched a live electrical wire, while he was asleep, and therefore, the accused

were acquitted from the charges of the murder and the special leave petition was dismissed

by the bench Supreme Court

The court stated that “Suspicion, however strong cannot take the place of proof. An accused

is presumed to be innocent unless proved guilty beyond a reasonable doubt”.

Thus, the appellant is innocent as the offence committed by the appellant is beyond the

reasonable doubt and the blood stain found on front tire of the motorcycle of the appellant

does not determine the blood group of the deceased person. The appellant has no relation

with this incident of murder. As the appellant has not been proved guilty he is still innocent.
___________

15. Sadhu Saran Singh v. State of U.P. 2016 (4) SCC 357

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-23

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, this

Hon’ble Court may graciously be pleased to adjudge and declare that:

1. The petition filed by the appellant is maintainable in the Hon’ble High Court of

Orissa.

2. The evidences taken into account by Hon’ble Session Court does not fully

establish the appellant guilty of causing homicidal death.

3. The punishment awarded by the Hon’ble Session Court should be struck down

and the appellant should be acquitted from conviction.

AND / OR

Any other just and equitable order as it deems fit in the interest of equity, justice and

good conscience.

All of which is most humbly and respectfully submitted.

Place: Cuttack

Date:

S/d______________________________

COUNSEL FOR THE APPELLANT

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-24