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 RESPONDENT

 TABLE OF CONTENTS

LIST OF ABBREVIATION------------------------------------------------------------------------02
INDEX OF AUTHORITIES------------------------------------------------------------------------03
STATEMENT OF JURISDICTION------------------------------------------------------------ 04 - 05
STATEMENT OF FACTS-----------------------------------------------------------------------06 - 07
STATEMENT OF ISSUES-------------------------------------------------------------------------08
SUMMARY OF ARGUMENTS------------------------------------------------------------------09
ARGUMENTS ADVANCED-------------------------------------------------------------------10-20
ISSUE 1-THE APPEAL ISN’T MAINTAINABLE IN THIS HON’BLE COURT-------------------------10-11

ISSUE 2-YES, THE ACCUSED IS GUILTY OF MURDER--------------------------------------------------12-17

ISSUE 3-YES, THE ACCUSED IS GUILTY OF ACTS DONE BY SEVERAL PERSONS

IN FURTHERANCE OF COMMON INTENTION-------------------------------------------------18-19

ISSUE 4-THERE IS NO PRESENCE OF ANY RESONABLE DOUBT-------------------------------------20

PRAYER---------------------------------------------------------------------------------------------- 21

MEMORANDUM ON BEHALF OF THE RESPONDENT

 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 RESPONDENT Pg.-2

 INDEX OF AUTHORITIES

CASES
SL. NO. CASE NAME CITATION
1. State of Gujarat v.Bhalchandra Laxmishankar Dave (2021) 2 SCC 735

2. Munishamappa v. State of Karnataka (2019) 3 SCC 393

3. Babu Lodhi v. State of U.P. [(1987) 2 SCC 352]

4. Prem Kumar v. State of Bihar [(1995) 3 SCC 228]

5. State of U.P. v. Moti Ram [(1990) 4 SCC 389]

6. State of Punjab v. Kuljit Singh [2003 (2) RCR (Criminal) 629]

7. Rupinder Singh Sandhu v. State of Punjab (2018) 16 SCC 475

8. Rizan v. State of Chhattisgarh (2003) 2 SCC 661

9. Barendra Kumar Ghosh V. Emperor (1925) 27 BOMLR 148

10. Surendra Chauhan v. State of Madhya Pradesh [AIR 2000 SC 1436]

11. Ramaswamy Ayhangar v. State of Tamil Nadu [(1976) 3 SCC 779]

12. Rajesh Govind Jagesh v. State of Maharashtra [(1999) 8 SCC 428]

BOOKS AND COMMENTARIES

THE INDIAN PENAL CODE BY RATAN LAL AND DHIRAJ LAL
THE CODE OF CRIMINAL PROCEDURE BY RATAN LAL AND DHIRAJ LAL
THE LAW OF EVIDENCE BY RATAN LAL AND DHIRAJ LAL
STATUTES
THE INDIAN PENAL CODE 1860
THE CODE OF CRIMINAL PROCEDURE 1973
THE INDIAN EVIDENCE ACT 1872
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-3

STATEMENT OF JURISDICTION

ABHISEKH, the appellant have submitted the Petition before this Hon’ble High Court of

Orissa in the matter of ABHISEKH V STATE OF ORISSA in pursuance of under section

374 (2) of Code of Criminal Procedure. The Respondent humbly submits to this jurisdiction

which has been invoked by the Appellant. However, the Respondent reserves the rights to

respectfully challenge the same.

The present Memorial sets forth the facts, contentions and arguments and prayer on behalf of

respondent.
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-4

SECTION 374 of CrPC:-

Appeals from convictions.—(1) Any person convicted on a trial held by a High Court in its

extraordinary

original criminal jurisdiction may appeal to the Supreme Court

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions

Judge or on a trial held

by any other court in which a sentence of imprisonment for more than seven years 1[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

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-5

STATEMENT OF FACTS

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

1. The accused Mr. Abhishek and the deceased Mr. Ashutosh had a long-standing

dispute concerning property going back to about 10 years. The deceased Mr.

Ashutosh was a regular drinker and used to frequent the 'Relax Bar' whose owner was

well known to him.

2. On the night of 5th April, 2018, the deceased Mr. Ashutosh had invited two of his

very close friends - Mr. Abhijeet and Mr. Shyam to the bar to accompany him over

drinks. The deceased was seen leaving the bar at around 11:30 p.m. along with his

friends. He thereafter never reached his home and his dead body was recovered after 3

days i.e., on 8th April, 2018 from a forested area between the bar and his home

concealed under some branches and stones.

3. Abhijeet and Shyam stated that they had parted company with Ashutosh after

proceeding together for 10 minutes and claimed ignorance about seeing anyone else

while they were together.

4. Abhishek was stated by the bar owner, Mr. Amit to have been drinking in his bar the

same night and whispering to an unknown person who left the bar prior to Ashutosh's

departure. Abhishek then followed him out of the bar.

5. The post mortem report of Ashutosh revealed pressure abrasions with lacerations on

his chest consistent with having been run over by a vehicle. His spleen was ruptured

and enlarged.
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-6

6. The motorcycle of Mr. Abhishek was seized and revealed presence of blood stains on

its front tyre to which Mr. Abhishek claimed complete ignorance. The origin and the

grouping of the blood also could not be determined.

7. The accused Mr. Abhishek was put to trial before the Sessions Court on the

accusation of having caused the homicidal death of Mr. Ashutosh and the Sessions

judge convicted him u/s 302 r/w Sec 34 of the Indian Penal Code and sentenced him

to life imprisonment.

8. The accused Mr. Abhishek then filed an appeal before the Hon'ble High Court.
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-7

STATEMENT OF ISSUES

ISSUE 1

WHETHER THE APPEAL IS MAINTAINABLE IN THIS HON’BLE COURT?

ISSUE 2

WHETHER THE ACCUSED IS GUILTY OF MURDER?

ISSUE 3

WHETHER THE ACCUSED IS GUILTY OF ACTS DONE BY SEVERAL PERSONS

IN FURTHERANCE OF COMMON INTENTION?

ISSUE 4

WHETHER THERE IS ANY PRESENCE OF RESONABLE DOUBT?

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-8

SUMMARY OF ARGUMENTS

ISSUE 1

THE APPEAL ISN’T MAINTAINABLE IN THIS HON’BLE COURT.

It is humbly submitted before this Hon’ble Court that this petition is not maintainable.

Because the present appeal doesn’t qualify or falls within any grounds as provided in

provision of law for appeal.

ISSUE 2

YES, THE ACCUSED IS GUILTY OF MURDER

It is humbly submitted before this Hon’ble Court that the accused Abhisekh is guilty of

culpable homicide amounting to murder under section 302 of IPC. Due to presence of

requisite mens rea for committing the offence which he have executed with another person to

take avenge on Ashutosh over long standing land dispute.Hence the crime of murder can

stand against the accused.

ISSUE 3

YES, THE ACCUSED IS GUILTY OF ACTS DONE BY SEVERAL PERSONS IN

FURTHERANCE OF COMMON INTENTION

It is humbly submitted before this Hon’ble Court that the accused Abhisekh and the unknown

person are guilty of the offence of under Section 302 of IPC as they have motive and

intention that would have benefitted the accused for the deceased annulment.

ISSUE 4

THERE IS NO PRESENCE OF ANY RESONABLE DOUBT.

It is humbly submitted before this Hon’ble Court that there arise no question of any doubt in

the present case.

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-9

ARGUMENTS ADVANCED

ISSUE 1:

THE APPEAL ISN’T MAINTAINABLE IN THIS HON’BLE 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

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

The respondent submits that the present case doesn’t fall in any of the said grounds.
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-10

It is humbly submitted by the Counsel appearing on behalf of the Respondents that there is

not an error of law apparent on the face of the records. As the Trial Court has viewed all

evidence and all relevant circumstances relating to the fact to arrive to its own conclusion

about the guilt. There were no other views on same evidence and findings recorded by the

trial court are also not perverse. The respondent also further submits that the Trial Court has

done proper and independent analysis and assessment of evidence after which the court have

reach on decision of conviction. (State of Gujarat Vs Bhalchandra Laxmishankar Dave)

With this respondent further submit that there were no two views on the evidence available

on record are possible therefore the accused need not get this benefit of appeal.

The burden of proof in criminal law is beyond all reasonable doubt and the prosecution had

also evidently proved it in the Trial Court without aggravating any question before the Trial

Court. (Munishamappa Vs. State of Karnataka)

_____________
1. State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735

2. Munishamappa v. State of Karnataka, (2019) 3 SCC 393

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-11

ISSUE 2

YES, THE ACCUSED IS GUILTY OF MURDER

It is humbly submitted before this Hon’ble Court that the accused is guilty of murder as the

evidence proves it. The accused and the deceased had a long standing land disputes for way

long from 10 years which establish the motive behind such illegal commission of act.

The prosecution has also proved the motive for the alleged commission of the crime. The

appellants had motive to commit the said crime and, therefore, the story put forward by the

prosecution stands true. This is the case of the respondent that there was enmity between

accused and the deceased due to the land dispute. The evidence indicates that the relations

between both of them were quite strained. This itself indicates some kind of motive for

committing the crime in question. Be that as it may, it is not always necessary for the

prosecution to establish a definite motive for the commission of the crime. It will always be

relatable to the facts and circumstances of a given case. It will not be correct to say as an

absolute proposition of law, that the existence of a strong or definite motive is a sine qua non

to holding an accused guilty of a criminal offence. It is not correct to say that absence of

motive essentially results in the acquittal of an accused if he is otherwise found to be guilty.

In the case of Babu Lodhi vs. State of U.P., this Court took the view that in so far as the

adequacy of motive is concerned, it is not a matter which can be accurately weighed on the

scales of a balance. In Prem Kumar vs. State of Bihar the Court discussed the concept of

motive as applicable to Indian criminal jurisprudence and held as under:

______________________

3. Babu Lodhi v. State of U.P. [(1987) 2 SCC 352]

4. Prem Kumar v. State of Bihar [(1995) 3 SCC 228]

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-12

"5.The Courts below have concurrently held that the motive suggested

by the prosecution against the accused persons is established. When

there is sufficient direct evidence regarding the commission of the

offence, the question of motive will not loom large in the mind of the

court. It is true that this Court has held in State of U.P. v. Moti

Ram that in a case where the prosecution party and the accused party

were in animosity on account of series of incidents over a considerable

length of time, the motive is a double-edged weapon and the key

question for consideration is whether the prosecution had

convincingly and satisfactorily established the guilt of all or any of the

accused beyond reasonable doubt by letting in reliable and cogent

evidence.

Very often, a motive is alleged to indicate the high degree of probability that the offence was

committed by the person who was prompted by the motive. In our opinion, in a case when

motive alleged against the accused is fully established, it provides a foundational material to

connect the chain of circumstances. We hold that if motive is proved or established, it affords

a key or pointer, to scan the evidence in the case, in that perspective and as a satisfactory

circumstance of corroboration. It is a very relevant, and important aspect - (a) to highlight the

intention of the accused and (b) the approach to be made in appreciating the totality of the

circumstances including the evidence disclosed in the case. The relevance of motive and the

importance or value to be given to it are tersely stated by Shamsul Huda in delivering the

____________________

5. State of U.P. v. Moti Ram [(1990) 4 SCC 389]

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-13

Tagore Law Lectures (1902) - The Principles of the Law of Crimes in British India, at page

176,as follows:

“But proof of the existence of a motive is not necessary for a

conviction for any offence. But where the motive is proved it is

evidence of the evil intent and is also relevant to show that the person

who had the motive to commit a crime actually committed, it,

although such evidence alone would not ordinarily be sufficient.

Under Section 8 of the Evidence Act any fact is relevant which shows

or constitutes a motive or preparation for any fact in issue or relevant

fact'."

However, in cases which are entirely or mainly based upon and rest on circumstantial

evidence, motive can have greater relevancy or significance Babu Lodhi and Prem

Kumar's case (supra). But it is equally true that when positive evidence against the accused

is clear in relation to the offence, motive is not of much importance. Mere absence of motive,

even if assumed, will not per se entitle the accused to acquittal, if otherwise, the commission

of the crime is proved by cogent and reliable evidence (State of Punjab vs. Kuljit Singh).

Significance of relevancy of motive would primarily depend upon the facts and

circumstances of a given case. In the case in hand, there are eye witnesses whose version is

supported by expert and other evidence. Their statements find corroboration and infact, they

completely fit in with the case put forward by the prosecution and there is hardly any

occasion for the Court to doubt the version of the prosecution.

_____________

6. State of Punjab v. Kuljit Singh [2003 (2) RCR (Criminal) 629]

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-14

But in case of direct and clear evidence, there is no need for the Court to attach undue

emphasis or importance to the motive behind the crime. The principles afore stated would

clearly apply to the facts of the present case and we cannot find fault in the concurrent

judgments, which is the subject matter of the present appeals.

Due to the land dispute there was a presence of rift and anger between the accused and the

deceased since last 10 years which can also be inferred from the facts as the witness Amit

knew such tension has remained within them as he was bar friend (well know) to

accused .Know about this fact created suspicion in the mind of Amit while the accused and

an unknown person was having conversation in the day death of deceased. For which Amit

marked the movement of the accused and his unknown friend but Amit due to work in bar he

was unable to leave it and also he at that time had not thought about this such crime would

happen. After the deceased got missing he was able to connect the links to form the chain that

he had seen in the day of commission. Therefore the evidence of Amit is admissible in

terms of Section 6 of the Indian Evidence Act. The section 6 of the Indian Evidence Act lays

down the doctrine of Res Gestae. The doctrine of Res Gestae is based on the assumption that

every relevant part of the chain of event is consider before the final disposal by the judiciary

as under criminal justice system so that no evidence can be discarded on the ground of

irrelevant considerations even if some technicality is also differs from case to case. It is not

possible for the proving of whole incident without the helping of some missing facts. It may

be proved by some other piece of evidence examined and titled as doctrine of Res Gestae.

Res Gestae is a Latin phrase which means that forming part of the same transaction. It means

that relevant portion of the event which is connected with directly or indirectly with the main

transaction of the event. In order to prove the whole incident in the present case respondent

rely upon the section 6 of Indian Evidence Act with this respondent also proves that the facts
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-15

which is distorted gets a full picture after arranging the incident which part of same

transaction i.e with the commission of crime.

The respondent also further argues that the learned trial Court hasn’t fallen in error of law in

convicting accused Abhisekh with the aid of Section 34 of the IPC respectively. In the facts

and circumstances of the case, the basic ingredients for application of these provisions

had been satisfied by the prosecution. Thus, the conviction is not vitiated in law. And also

there was sufficient documentary and expert evidence on record. The version of the witnesses

cannot be doubted, their presence on the site was natural and they had no reason to falsely

implicate all or any of the accused in the murder of Ashutosh. It is contended that the version

of witnesses is fully supported by evidence. Once the prosecution is able to fully corroborate

the incident as recorded in the FIR, the judgment under appeal cannot be interfered with.

The respondent also argues that the testimony of the witness could not be discarded

only on the ground that they are related witness of the deceased. That a related witness

cannot be said to be an “interested” witness merely by virtue of being a relative (well

known-friend) of the victim. A witness may be called interested only when he or she

derives some benefit from the result of a litigation, which in the context of a criminal

case would mean that the witness has a direct or indirect interest in seeing the accused

punished due to prior enmity or other reasons, and thus has a motive to falsely

implicate the accused. Thus from the evidence which came on record, it was clear that

Amit had given the statement what he had seen in that day.

It is well established principle of law that the evidence of a "related witness" cannot be

discarded only on the ground of relationship. The Supreme Court in the case of Rupinder

Singh Sandhu v. State of Punjab, reported in (2018) 16 SCC 475 has held as under:

________________
7. Rupinder Singh Sandhu v. State of Punjab (2018) 16 SCC 475
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-16

“50. The fact that PWs 3 and 4 are related to the deceased Gurnam

Singh is not in dispute. The existence of such relationship by itself

does not render the evidence of PWs 3 and 4 untrustworthy. This

Court has repeatedly held so and also held that the related witnesses

are less likely to implicate innocent persons exonerating the real

culprits.”

The Supreme Court in the case of Rizan v. State of Chhattisgarh, reported in (2003) 2 SCC

661 has held as under:

6. We shall first deal with the contention regarding interestedness of

the witnesses for furthering the prosecution version. Relationship is

not a factor to affect credibility of a witness. It is more often than not

that a relation would not conceal the actual culprit and make

allegations against an innocent person. Foundation has to be laid if

plea of false implication is made. In such cases, the court has to adopt

a careful approach and analyse evidence to find out whether it is

cogent and credible.

Thus, the mechanical rejection of testimony of witnesses who are related to the deceased, is

not permissible. However, the evidence of such witnesses should be examined minutely

_____________________
8. Rizan v. State of Chhattisgarh (2003) 2 SCC 661
 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-17

ISSUE 3

YES, THE ACCUSED IS GUILTY OF ACTS DONE BY SEVERAL PERSONS IN

FURTHERANCE OF COMMON INTENTION

It is humbly submitted before this Hon’ble Court that the accused Abhisekh and the unknown

person are guilty of the offence of under Section 302 of IPC as they have motive and

intention that would have benefitted the accused for the deceased annulment.

Having discussed the merits of the case the respondent would proceed to deal with the

contention raised by the accused that the Court could not have convicted all the accused with

the aid of Section 34 of IPC. As there is no doubt that the accused has committed with crime

with the aid of another unknown person as proved from the present fact by the respondent. As

per the case of the prosecution there were 2 person i.e is Abhisekh and the unknown man as

stated by the witness Amit. Both have pre planned to commit the crime knowing that

Ashutosh used to be regular drinker they choosed the night time to execute the plan. In order

to establish it the respondent want to put emphasis on certain cases. It is a settled principle of

law that to show common intention to commit a crime it is not necessary for the prosecution

to establish, as a matter of fact, that there was a pre-meeting of the minds and planning before

the crime was committed (Barendra Kumar Ghosh V. Emperor). In the case of Surendra

Chauhan vs. State of Madhya Pradesh the Hon’ble Court held that common intention can

be developed on the spur of the moment. Also, under Section 34, a person must be physically

present at the place of actual commission of the crime. The essence is the simultaneous

consensus of the minds of persons participating in the criminal act and such consensus can be

developed on the spot.

_____________________

9. Barendra Kumar Ghosh v. Emperor (1925) 27 BOMLR 148

10. Surendra Chauhan v. State of Madhya Pradesh [AIR 2000 SC 1436]

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-18

It is not mandatory for the prosecution to bring direct evidence of common intention on

record and this depends on the facts and circumstances of the case.The intention could

develop even during the course of occurrence. In this regard reference can be made

to Ramaswamy Ayhangar vs. State of Tamil Nadu and Rajesh Govind Jagesh vs. State

of Maharashtra. In other words, to apply Section 34, two or more accused should be present

and two factors must be established i.e. common intention and participation of the accused in

the crime. Section 34 moreover, involves vicarious liability and therefore, if intention is

proved but no overt act is committed, the section can still be invoked.

_____________________

11. Ramaswamy Ayhangar v. State of Tamil Nadu [(1976) 3 SCC 779]

12. Rajesh Govind Jagesh v. State of Maharashtra [(1999) 8 SCC 428]

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-19

ISSUE 4

THERE IS NO PRESENCE OF ANY RESONABLE DOUBT.

It is humbly submitted before this Hon’ble Court that there arise no question of any doubt in

the present case.

In light of all the aforementioned arguments made by the appellant, the respondent humbly

submits that there doesn’t exists any reasonable doubt and hence he should not be acquitted of the

alleged crime. A reasonable doubt must not be imaginary, trivial or merely possible doubt; but a

fair doubt based upon reason and common sense arising out of the evidence of the case.

The respondent have provided concrete reliable proof and unimpeachable evidence for upholding

the judgment of learned Trial Court. There is no mere presence of doubt as the respondent has

proved everything beyond any reasonable doubt.

 MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-20

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 u/s 374(2) is not maintainable in the High

Court of Orissa.

2. The evidences taken into account by Hon’ble Session Court fully establish the

appellant guilty of causing homicidal death under section 302 and 34 of IPC.

3. To uphold the punishment awarded by the Hon’ble Session Court.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Place: Cuttack

Date:

S/d_____________

COUNSEL FOR THE RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT Pg.-21