‭T‭E

‬ AM‬‭C‭O
‬ DE‬‭:‬

‭B‭E‬ FORE THE‬‭H‭O

‬ N‬‭’‭B
‬ LE‬
‭S‭U
‬ PREME‬‭C‬‭OURT‬‭O‭F‬ ‬‭I‭N
‬ DIA‬

‭S‭P‬ ECIAL‬‭L‬‭EAVE‬‭P‬‭ETITION‬‭N‬‭O‬‭.:‬ ‭2024‬

‭UNDER‬‭A‬‭RTICLE‬‭136‬‭OF‬‭T‭H
‬ E‬‭C‬‭ONSTITUTION OF‬‭I‬‭NDIA‬

‭(A‬‭PPELLANT‬‭)‬
‭V.‬

‭State‬
‭(R‬‭ESPONDENTS‬‭)‬

‭ PECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE‬

S
‭CONSTITUTION OF INDIA CHALLENGING THE DISMISSAL‬
‭OF THE MATTER BY THE HON’BLE HIGH COURT‬

‭M‭E‬ MORIAL FOR THE‬‭Appellants‬

 ‭STATEMENT OF JURISDICTION‬

‭The Petitioner herein is “THE APPELLANT”. Under Art. 136 of the Constitution of India, 1950,‬
‭this Hon’ble supreme court has been vested, with the discretion, to grant special leave to‬
‭appeal from any judgment, decree, determination, sentence, or order in any cause or matter‬
‭passed or made by any court or tribunal in the territory of India. In this case, the petitioner‬
‭has preferred an appeal in the impugned Judgment of the Hon’ble High court.‬

‭The Present memorandum sets forth the facts, contentions and arguments in‬
‭the present case.‬

‭ ROVISION as per Constitution‬

P
‭“Article‬‭136 –‬‭Special leave to Appeal by the Supreme‬‭court‬

‭(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its‬
‭discretion, grant special leave to appeal from any judgment, decree,‬
‭determination, sentence or order in any cause or matter passed or made by‬
‭any court or tribunal in the territory of India.‬

‭(2) Nothing in clause (1) shall apply to any judgment, determination, sentence‬
‭or order passed or made by any court or tribunal constituted by or under‬
‭any law relating to the Armed Forces.”‬
 ‭STATEMENT OF FACTS‬

‭●‬ ‭On August 2nd, 1976, PW1 Shri Khiroda Mohan Paul and the deceased‬
‭Purna Chandra Ghosh, both associated with a high school, were returning‬
‭home.‬

‭●‬ ‭Despite the deceased having a bicycle, they were walking to their village.‬

‭●‬ ‭Near the railway gate, they encountered the accused, the appellant, and‬
‭Arjun Mondal, along with Susanta Kr. Chandra and Rabu.‬

‭●‬ ‭The appellant and Arjun approached from behind and seized the deceased's‬
‭bicycle.‬

‭●‬ ‭The appellant accused the deceased of assaulting his elder brother, leading‬
‭to a verbal altercation.‬

‭●‬ ‭Knives were drawn by the appellant and Arjun, initiating a scuffle.‬

‭●‬ ‭When PW1 intervened, the appellant threatened him with his knife.‬

‭●‬ ‭During the scuffle, Arjun stabbed the deceased with his knife.‬

‭●‬ ‭Subsequently, both the appellant and Arjun fled the scene.‬

‭●‬ ‭The Sessions Court convicted the appellant under Section 302 read with‬
‭Section 34 of the Indian Penal Code, 1860 (IPC), sentencing him to life‬
‭imprisonment.‬

‭●‬ ‭The appellant's appeal against the Sessions Court's judgment was‬
‭dismissed by the High Court, leading to the current appeal.‬
 ‭ISSUES RAISED‬

‭1.‬ ‭Whether‬ ‭the‬ ‭charges‬ ‭framed‬ ‭against‬ ‭accused‬ ‭are‬ ‭valid‬ ‭in‬ ‭view‬ ‭of‬
‭section 34 IPC‬

‭2.‬ ‭Whether‬ ‭There‬ ‭are‬ ‭inconsistencies‬ ‭or‬ ‭discrepancies‬‭in‬‭the‬‭testimony‬

‭of PW (1), That cast doubt on his credibility‬

‭3.‬ ‭Whether‬ ‭the‬ ‭Appellant's‬ ‭Conviction‬ ‭U/S‬ ‭302‬ ‭r/w‬ ‭34‬ ‭of‬ ‭IPC‬ ‭is‬
‭sustainable in light of the evidence and circumstance of the case ‬
 ‭SUMMARY OF ARGUMENTS‬

‭1.‬ ‭Whether‬ ‭the‬ ‭charges‬ ‭framed‬‭against‬‭accused‬‭are‬‭valid‬‭in‬‭view‬‭of‬‭section‬

‭34 IPC‬

‭The‬ ‭Counsel‬ ‭on‬‭behalf‬‭of‬‭Appellant‬‭Most‬‭humbly‬‭submits‬‭that‬‭the‬‭penal‬‭action‬‭imposed‬‭on‬

‭him‬‭is‬‭invalid‬‭and‬‭unjustifiable.‬‭The‬‭Sessions‬‭court‬‭and‬‭High‬‭court‬‭have‬‭erroneously‬‭charged‬
‭him‬ ‭u/s‬ ‭34‬ ‭of‬ ‭IPC,‬ ‭1860.As‬ ‭Appellant‬ ‭was‬ ‭not‬ ‭present‬ ‭During‬ ‭the‬ ‭commission‬ ‭of‬ ‭the‬
‭offense.And The‬‭Plea of alibi‬‭of accused has not been‬‭appreciated by the concerned Courts.‬

‭2.‬ ‭Whether‬ ‭There‬ ‭are‬ ‭inconsistencies‬ ‭or‬ ‭discrepancies‬ ‭in‬ ‭the‬ ‭testimony‬ ‭of‬
‭PW (1), That cast doubt on his credibility.‬

‭It‬‭is‬‭humbly‬‭submitted‬‭that‬‭There‬‭are‬‭inconsistencies‬‭or‬‭discrepancies‬‭in‬‭the‬‭testimony‬‭of‬‭PW‬
‭(1)‬‭,‬ ‭As‬ ‭There‬ ‭has‬ ‭been‬ ‭previous‬ ‭enmity‬ ‭between‬ ‭PW(1)‬ ‭and‬ ‭appellant‬ ‭which‬ ‭gives‬ ‭him‬
‭motive to Falsely implicate appellant.‬

‭3.‬ ‭Whether‬‭the‬‭Appellant's‬‭Conviction‬‭U/S‬‭302‬‭r/w‬‭34‬‭of‬‭IPC‬‭is‬‭sustainable‬
‭in light of the evidence and circumstance of the case‬‭‬

‭It‬ ‭is‬ ‭humbly‬ ‭submitted‬ ‭That‬ ‭Appellant’s‬ ‭Conviction‬ ‭U/S‬ ‭302‬ ‭R/W‬ ‭34‬ ‭of‬ ‭IPC‬ ‭is‬ ‭not‬
‭sustainable‬‭in‬‭the‬‭light‬‭of‬‭the‬‭evidence‬‭and‬‭circumstance‬‭of‬‭the‬‭case‬‭as‬‭the‬‭conviction‬‭of‬‭the‬
‭appellant is solely based on statement provided by‬‭PW(1)‬‭. who is an interested witness.‬
 ‭ARGUMENTS ADVANCED‬

‭1.‬‭Whether the charges framed against accused are valid‬‭in view of section 34 IPC‬
‭1.1‬ ‭The‬ ‭Plea‬ ‭of‬ ‭alibi‬ ‭of‬ ‭the‬ ‭accused‬ ‭has‬ ‭not‬ ‭been‬ ‭appreciated‬ ‭by‬ ‭the‬ ‭concerned‬
‭Courts.‬

‭It‬ ‭is‬ ‭humbly‬ ‭submitted‬ ‭that‬ ‭during‬ ‭the‬ ‭commission‬ ‭of‬ ‭the‬ ‭offense‬‭The‬‭said‬‭appellant‬‭was‬
‭not‬ ‭present‬ ‭and‬ ‭the‬ ‭prior‬ ‭courts‬ ‭did‬ ‭not‬ ‭consider‬ ‭this‬ ‭fact‬ ‭which‬ ‭resulted‬ ‭into‬ ‭non‬
‭appreciation‬‭of‬‭the‬‭plea‬‭of‬‭alibi‬‭of‬‭the‬‭appellant‬‭and‬‭considering‬‭the‬‭conduct‬‭of‬‭the‬‭courts,‬
‭It‬ ‭can‬‭be‬‭said‬‭that‬‭legal‬‭condition‬‭required‬‭by‬‭the‬‭Sec34‬‭of‬‭IPC‬‭to‬‭constitute‬‭the‬‭common‬
‭intention was not fulfilled in this case.‬

‭Section 34 of IPC reads as follows:-‬

‭Acts done by several persons in furtherance of‬‭common intention.—‬

‭When‬ ‭a‬ ‭criminal‬ ‭act‬ ‭is‬ ‭done‬ ‭by‬ ‭several‬ ‭persons‬ ‭in‬ ‭furtherance‬ ‭of‬ ‭the‬ ‭common‬
‭intention‬‭of‬‭all,‬‭each‬‭of‬‭such‬‭persons‬‭is‬‭liable‬‭for‬‭that‬‭act‬‭in‬‭the‬‭same‬‭manner‬‭as‬‭if‬
‭it were done by him alone.‬

‭Ingredients:-‬

‭1.‬ ‭Pre-consent between the persons‬

‭2.‬ ‭Presence of the persons‬
‭3.‬ ‭Participation must be established in respect of each accused.‬

I‭ n the case of‬‭Jagan Gope v. State of West Bengal‬‭Cr. A.no. 389/2012‬‭SC Held‬
‭that above ingredients have to be considered for the purpose of determining‬
‭whether several persons shared common intention‬‭.‬‭In‬‭the present case appellant was‬
n‭ ot present at the time of commission of offense.thereby all the conditions(supra) was‬
‭not fulfilled by the appellant.‬

I‭ n the present matter, the plea of alibi of the appellant was not appreciated by the lower courts,‬
‭Which resulted in the failure of the appellant to prove his absence. This could have been the‬
‭ground for his acquittal.In this regard, we are relying upon the decision of this court in the case‬
‭of‬‭Jai prakash tiwari v. State of Madhya Pradesh (2018):‬‭This‬‭court held that it is the‬
‭solemn duty of the courts below to consider the defense of the accused. The same must be‬
‭considered with caution and must be scrutinized by application of mind by the judge. The‬
‭reasoning and the application of mind must be reflected in writing.From the observations‬
‭extracted above, it is clear that the court below has failed to undertake this solemn duty.Rather‬
‭the evidence of the accused has been dealt with by the court in the casual manner .‬
‭ he purpose of sec. 313 is to provide the accused a reasonable opportunity to explain the‬
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‭adverse circumstances which have emerged against him during the course of trial and in the‬
‭present case , the court below failed to scrutinized the defense version put forwarded by the‬
‭appellant in his section 313 statement as to plea of alibi .‬‭In the present matter The high court‬
‭and the trial court failed to consider the above mentioned circumstances while rendering the‬
‭judgment convicting the accused . The evidence brought on record by the prosecution is‬
‭insufficient to prove the case against the appellant beyond reasonable doubt. It has been held‬
‭by this court in‬‭PARMINDER KAUR VS STATE OF PUNJAB‬‭(2020)‬‭That once a‬
‭plausible defense has been put forth in defense at the section 313 CR.P.C 1973 in examination‬
‭stage then it is for the prosecution to negate such defense plea.‬
‭2‭.‬‬‭Whether There are inconsistencies or discrepancies‬‭in the testimony of PW (1),‬
‭That cast doubt on his credibility.‬

2‭ .1‬‭Previous enmity between PW(1) and Appellant also‬‭PW(1) is the interested party in the‬
‭matter in hand.‬

‭(2.1.1)The Counsel on behalf of Appellant Most humbly submits That there has been previous‬
‭enmity between PW(1) and Appellant which gives him motive to falsely implicate Appellant‬
‭because several time it is held by this court that where there is previous enmity there is motive to‬
‭alleged enemy with omnibus allegations.‬

‭As observed by this Court in the case of‬‭Ramashish‬‭Ray v. Jagdish Singh‬‭,‬‭previous enmity is a‬
‭double-edged sword.‬‭On one hand, it can provide motive‬‭and on the other hand, the possibility of‬
‭false implication cannot be ruled out.‬

‭(2.1.2)The Counsel also submits that PW(1) is the interested witness in the present case as despite‬
‭being the assistant of PW(1) the deceased and PW(1) shares brotherhood that is why on that day‬
‭despite having bicycle, Deceased and PW(1) were proceeding to their village on foot.‬

‭The conviction to the appellant in the present case was solely on the basis of statement of PW(1)‬
‭who is interested prosecution witness and Conviction of the appellant purely on the basis of‬
‭interested witness is not appropriate and in regard to this we are relying on the judgment of this‬
‭court in the case of‬‭NAND LAL V. STATE OF CHHATTISGARH‬‭This Court Held in this case;‬
‭the conviction of these accused purely on the basis of oral testimony of the interested‬
‭witnesses, without sufficient corroboration, would not be sustainable.‬

‭2.2‬‭Failure to record the statement of the most crucial‬‭eyewitnesses(Susanta Kr.‬

‭Chandra and Rabu) deliberately.‬

I‭ t‬ ‭is‬ ‭humbly‬ ‭submitted‬‭that‬‭The‬‭prosecution‬‭has‬‭failed‬‭to‬‭record‬‭the‬‭statement‬‭of‬‭the‬‭most‬

‭crucial‬ ‭eyewitnesses‬ ‭deliberately‬ ‭as‬ ‭PW(1)‬ ‭had‬ ‭stated‬ ‭that‬ ‭along‬ ‭with‬ ‭Arjun‬ ‭and‬ ‭the‬
‭appellant,Susanta‬ ‭Kr.‬ ‭Chandra‬ ‭and‬ ‭Rabu‬ ‭were‬ ‭also‬ ‭sitting.‬ ‭When‬ ‭the‬‭deceased‬‭and‬‭PW1‬
‭came‬‭there,‬‭the‬‭appellant‬‭and‬‭Arjun‬‭ran‬‭after‬‭them.‬‭The‬‭relationship‬‭between‬‭the‬‭appellant‬
‭and‬‭Arjun‬‭is‬‭not‬‭brought‬‭on‬‭record.‬‭If,‬ ‭according‬‭to‬‭the‬ ‭prosecution‬ ‭case,‬ ‭there‬ ‭was‬ ‭a‬
‭meeting‬‭of‬‭minds‬‭and‬‭prior‬‭concert‬‭between‬‭the‬‭appellant‬‭and‬‭Arjun‬‭when‬‭they‬‭were‬‭sitting‬
‭with‬‭Susanta‬‭Kr.‬‭Chandra‬‭and‬‭Rabu,‬‭the‬‭prosecution‬‭ought‬‭to‬‭have‬‭examined‬‭both‬‭Susanta‬
‭Kr.‬ ‭Chandra‬ ‭and‬ ‭Rabu.‬ ‭In‬ ‭fact,‬ ‭they‬ ‭appear‬ ‭to‬ ‭be‬ ‭eyewitnesses‬ ‭to‬ ‭the‬ ‭incident.The‬
‭prosecution‬‭has‬‭not‬‭explained‬‭its‬‭failure‬‭to‬‭examine‬‭these‬‭two‬‭crucial‬‭witnesses,‬‭who‬‭apart‬
‭from‬ ‭being‬ ‭eyewitnesses,‬ ‭were‬ ‭sitting‬ ‭along‬ ‭with‬ ‭the‬ ‭appellant‬ ‭and‬ ‭Arjun‬ ‭just‬ ‭before‬ ‭the‬
‭incident‬‭near‬‭the‬‭place‬‭of‬‭incident‬‭“According‬‭to‬‭prosecution‬‭witness(1)”.‬‭The‬‭prosecution‬
‭has‬ ‭withheld‬ ‭the‬ ‭evidence‬ ‭of‬ ‭two‬ ‭material‬ ‭witnesses‬ ‭who‬ ‭could‬ ‭have‬ ‭thrown‬ ‭light‬‭on‬‭the‬
‭incident. Hence, this is a case for drawing an adverse inference against the prosecution.‬
‭ . Whether the appellant’s Conviction u/s 302 r/w 34 of IPC is sustainable in the light of‬
3
‭the evidence & circumstances of the case‬

I‭ t is humbly submitted that The appellant’s Conviction‬‭U/S 302 R/W 34 of IPC‬‭is not sustainable in‬
‭the light of the evidence & circumstances of the case on the following ground‬

‭The Well planned cooked up story by the PW(1)‬

I‭ t is humbly submitted that according to testimony of the‬‭PW(1)‬‭the knife brandished by the‬

‭appellant towards the PW(1) to threaten him in case he obstructs.This is nothing but a fabricated‬
‭story As such knife was not recovered according to given facts and considering the fact that‬
‭appellant was elsewhere during the commission of the offense any such knife was never ever existed‬
‭and this is A well planned cooked up story for the purpose of falsely implicating the appellant as a‬
‭consequences of the previous enmity.‬

‭ ence, The conviction of the appellant‬‭u/s302 & r/w‬‭34‬‭is not sustainable in the light of the‬
H
‭evidence & circumstances of the case.‬

‭PRAYER‬

‭Wherefore, in light of the facts of the case, issues raised, arguments‬

‭advanced and authorities cited, this Hon’ble Court may be pleased:-‬

‭1. To accept this appeal and set aside the judgment rendered by the‬
‭Sessions Court and by the High Court.‬

‭2. To Acquit the appellant of the charges he has been charged with‬
‭and grant him his liberty Kindly.‬

‭ . To pass any such order that deems appropriate in the interest of justice,‬
3
‭equity and good conscience.‬

‭Place:‬ ‭S/d‬

‭Date:‬ ‭(Counsel on behalf of the Respondents)‬