RESEARCH WORK

Maqbool vs The State Of Uttar Pradesh on 7 September, 2018

Section 326A carries title of “voluntarily causing grievous hurt by use of acid”
whereas Section 326B does not carry any such indication in the title regarding the nature of
injury as grievous. But on closer analysis, it can be seen that both the Sections provide for
eight types of injuries - (i) permanent damage, (ii) partial damage, (iii) deformity, (iv) burns,
(v) maiming, (vi) disfigurement, (vii) disability or (viii) grievous hurt.

Thus, merely because the title to Section 326A of IPC speaks about grievous hurt by use of
acid, it is not a requirement under the Section that the injuries caused should be invariably
grievous. Even if the seven injuries are simple, Section 326A, and under Section 326B the
mere act of throwing or attempt, as indicated in the Section, would attract the offence.

The title to the provision need not invariably indicate the contents of the provision. If the
provision is otherwise clear and unambiguous, the title pales into irrelevance. On the
contrary, if the contents of the provision are otherwise ambiguous, an aid can be sought from
the title so as to define the provision. In the event of a conflict between the plain expressions
in the provision and the indicated title, the title cannot control the contents of the provision.
Title is only a broad and general indication of the nature of the subject dealt under the
provision.

WHETHER RAMESH HAD COMMITTED AN OFFENCE UNDER SECTION

326R/W SECTION 34 OF IPC, 1860?
It is
humbly submitted before this Hon’ble Supreme
Court that to constitute a criminaloffence, two essential elements are required i.e.
actus reus
and
mens rea
. In the present casethere has been a gross failure of justice on part of the Session courts.
There has been a graveerror in convicting Ramesh solely on the basis of his mere presence at
the site of the incident.However the High Court on the appeal made by the respondent
Ramesh passed a rationaleand fair judgment and had acquitted him.1
1.1

ABSENCE OF REQUISITE OF ACTUS REUS AND MENS REA

“ At the most fundamental level, criminal law is based around a single Latin
phrase:“Actus non facit reum nisi mens sit rea”, which translates to “an act does not make
a person guilty unless the mind is also guilty”.
Evidence must be tested for its inherent consistency and inherent probability of the story
1

1
.In the instant case, the entire prosecution story is unreliable.It is a well settled principle
incommon law that an offence is constituted by the presence of the
actus reus
as well as
mens rea
2
. The requirement of
mens rea
can be dispensed with only if the statute excludesmens rea explicitly or by necessary
implication
3
. It imposes a burden on the State to prove
that the defendant “
performed the relevant actus reus with the requisite mens rea in thecrime charged
”
4
. Hence, the prosecution needs to prove that a prima facie case exists withregard to the mens
rea as well. There is nothing in the facts to give a slight hint thatRamesh threw acid or had
any intention to throw acid on Reema. He was in true love withReema, and could never think
of doing such an act.
1
C. Magesh v. State of Karnataka, AIR 2010 SC 2768, ¶ 49; Suraj Singh v. State of Uttar
Pradesh, 2008 (11)SCR 286.
2
R v. Tolson, (1889) 23 QBD 168
3
Brend v. Wood, (1946) 62 TLR 462; Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
4
Woolmington v. D
.P.P., 1935 AC 462; Smith and Hogan’s Criminal Law 29 (David Ormerod ed., 13th edn.,
2011).

1 . 1 . 1 A C T U S R E U S For actusreusto be made outthere mustbe a voluntarycommissionof an

unlawfulact. All actionsare presumed to be voluntary,butthe defence canarguethatthere wasnoactusreusbecausethedefendanthadno
voluntarycontrolofhisorheractions.Thiswasthe case inR vParks
5
, where the accused presented evidence that he was sleepwalking at the time he killed his
mother and father in law. The Supreme Court of
Canada upheld Mr. Park’s acquittal on the basis that he was not acting voluntarily.

Thus, for
actus reus
to be made out there must be a voluntary commission of an unlawfulact.
It is humbly submitted before the Hon’ble Court that the unlawful Ac
t of throwing acidwas not committed by the Respondent and he was not holding the bottle of
acid, so therewas no Actus Reus on his part. Also the act was unlawful, but was an accident
and therespondent had no voluntary control on it and the acid got poured accidentally
byMahesh. He also strictly prohibited Mahesh for not using acid.
1 . 1 . 2 M E N S R E A Courtspresumethatcriminaloffencesrequiresomeformofsubjectivemensrea
—
intent,knowledge,recklessness,orwillfulblindness
—
inrelationtoallaspectsoftheactusreusunlessParliamentclearlyindicatesotherwise
.”
6

Mens rea
is a technical

term, generally taken to mean some blameworthy mentalcondition, whether constituted by

intention or knowledge or otherwise, the absence ofwhich on any particular occasion
negatives the intention of a crime. The act becomescriminal when the actor does it with a
guilty mind.As held in the case on
Brend v. Wood
7
Lord Goddand, C.J., said:
“
It is of utmost importance for the protection of the liberty of the subject that a court shou
ld always bear in mind that, unless a statute either clearly or by necessaryimplication
rules out mens rea as a constituent part of a crime, the court should not find aman guilty of
an offence against the criminal law unless he
has a guilty mind.”

5
(1992) 2 S.C.R. 871.
6

Source https://certificate.queenslaw.ca/blog/the-brains-and-brawn-of-criminal-law-mens-rea-
and-actus-reus,last visited on 11 April 2019.
7
(1946) 62 TLR 462.

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The evidence of motive is relevant since it throws a light on the question of intention
andgives clue to a crime, and though the prosecution is not bound to prove motive for acrime,
absence of motive may be a factor in consideration of the guilt of the accused. Asstated by
the Supreme Court in
Basdev v. State of Pepsu,
8

motive is something which prompts a man to form an intention.

1.1.3. AS PER SECTION 326 A
WHOEVER VOLUNTARILY CAUSING GRIEVOUSHURT
BY USE OF ACID ETC.
–
Whoever causes permanent or partial damage or deformity to, or bums or maims ordisfigures
or disables, any part or parts of the body of a person or causes grievous hurt bythrowing acid
on or by administering acid to that person, or by using any other meanswith the intention of
causing or with the knowledge that he is likely to cause such injuryor hurt, shall be punished
with imprisonment of either description for a term which shallnot 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
thetreatment of the victim;Provided further that any fine imposed under this section shall be
paid to the victim.
“A person is said to cause an effect “volun-tarily” when he causes it by means whereby
heintendedtocauseit,or bymeanswhich, at thetime ofemploying those means, heknew or hadreasontobelievetobelikelyto causeit.
”
9

According to sec.
39 of IPC
1860, a person is said to cause an effect voluntarily, when hecauses it(i) intentionally, or(ii)
he knew or had reasons to believe, to be likely to cause it.
It is humbly submitted before the Hon’ble Court that our client did not cause the act
voluntarily as firstly he had no intention of causing harm to the victim and secondly hehad no
reasons to believe that such incident would occur as it happened unintentionally.Moreover
our client did not commit such an act.
1.2. SECTION 34 OF THE INDIAN PENAL CODE
8
AIR 1956 SC 488.
9

section 39 of IPC

It is humbly submitted before the Hon’ble Supreme Court that Section

34 of the IndianPenal Code recognizes the principle of vicarious liability in criminal
jurisprudence. A bare reading shows that the section could be dissected as follows:1.
Criminal act is done by several persons;2. Such act is done in furtherance of the common
intention of all; and3. Each of such persons is liable for that act in same manner as it if it
were done byhim alone.
10

Original section 34 as it stood in original code of 1860 was “When a criminal act is
done by several persons, each of such persons is liable for that act in the same manner as if
the
act was done by him alone.” Later what was observed in
Queen vs. Gora Chand Gope &Ors
11
,
new words were introduced into the act, “in furtherance of
common intention”.
It is humbly submitted before Honourable Court that this case strongly comes under
thehorizon of the new words which were introduced into the section 34 in 1870
and intentionof accused must be studied very carefully as stated in facts as the accused
can’t be liable
only because at the time of that particular act of acid attack he was intending to be partaker
with the doer in a different criminal act.The reason why all are deemed guilty in such cases is
that the presence of accomplicegives encouragement, support and protection to the person
actually committing an act. Itmust be noted that nowhere the accused encouraged, supported
and gave protection toMahesh, who actually committed the act. The act sprung wholly from
the mind of doer.Instead Accused-1, Ramesh made it clear to Mahesh that bottle will be used
only as atool to threaten the victim for compliance to their wishes.To constitute common
intention it is necessary that the intention of each one of them beknown to the rest of them
and shared by them. It was held in
Hanuman Prasad vs

State of Rajasthan.
12
In
Pandurang vs. State of Hyderabad
13
, the court had in mind the ultimate act done infurtherance of common intention. It is
submitted that the ultimate act in this case i.e. actof acid attack was not in the furtherance of
common intention as in light of stated facts ithas been made clear that Ramesh was devoid of
any such intention. He made it very clearthat the acid bottle is just a tool to threaten and no
further harm must be caused and the
10

Ratanlal & Dhirajlal, “The Indian Penal Code”, 34th Edition, 2014
.
11
Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.
12
Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.
13
AIR 1955 SC216: 1955 Cr Lj 572.

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common intention among the accused evaporated as soon as Mahesh opened the bottle ofacid
for the ultimate act. It was sole act of Mahesh and Ramesh played no part in that.In
Mehbub Shah vs. King Emperor
14
it was clear to the Lordships that the commonintention within the meaning of section implies
a pre-arranged plan, and to convict theaccused of an offence applying the section it should be
proved that the criminal act wasdone in concert pursuant to the pre-arranged plan. Here in
this case it is very clear thatthere was no pre-arranged plan. Moreover there was no meeting
of minds among twoaccused. Ramesh right from start was very clear that no harm must be
done to victim.It was held in
Harbans Nonia vs State of Bihar
15
that where the act of murder by mainaccused was facilitated by two others by catching hold
of the victim but without knowingor having the intention of causing death, then only common
intention that only intentionthat could be inferred was that of causing grievous hurt.In light of
the facts of case there was not even the intention of causing the hurt to thevictim in mind of
Accused-
1. And keeping in view aforesaid judgment it’s not difficult
toconclude that there was absence of common intention on part of Ramesh in the act.It is
humbly submitted to honorable Court that the Accused-
1 can’t b
e punished under the principle of joint liability because he had no intention to bring about
grievous hurt or evenknowledge of that such degree of hurt was a likely consequence. Similar
situation wasobserved in
Lala Ram vs State of M.P
.
16
Hence, it is humbly submitted that there was no presence of common intention on the partof
Ramesh in the act of throwing acid on the face of victim and hence the Accused-1,
Ramesh can’t be
charged under section 34 and hence can
’t be held guilty under section
326A of IPC.
14
Mehbub Shah vs King Emperor, AIR 1945 PC 148.
15
Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105.
16
AIR 1994 SC 1452.

II. WHETHER RAMESH HAD COMMITTED AN OFFENCE UNDER

SECTION354D OF IPC?
It is humbly submitted before the Hon’ble Supreme Court that my client Ramesh has not
committed an offence under Section 354 D of Indian Penal Code,1860.
According to Section 354D of IPC
,Any man who
—
i.

follows a woman and contacts, or attempts to contact such woman to foster

personalinteraction repeatedly despite a clear indication of disinterest by such woman; orii.

monitors the use by a woman of the internet, email or any other form of
electroniccommunication, commits the offence of stalking;Provided that such conduct shall
not amount to stalking if the man who pursued it provesthat
—
(i)
it was pursued for the purpose of preventing or detecting crime and the man accusedof
stalking had been entrusted with the responsibility of prevention and detection ofcrime by the
State; or(ii)

it was pursued under any law or to comply with any condition or requirement imposed by any
person under any law; or(iii)in the particular circumstances such conduct was reasonable and
justified.
17
It is humbly submitted that such conduct on the part of Respondent trying to talk to Reema
doesn’t amount to stalking as it is covered in the clause( iii ) of the Proviso to Sub Sec.
(1)which says that “
in the particular circumstances such conduct was reasonable and justified
.”
Moreover, even the ingredients of main definition, such as
“disinterest”
and
“Foster personal interaction”
may not be relevant in such a scenario.
It is humbly submitted before Hon’ble
Court in light of facts that the girl never refused hisoffer of marrying her. Nowhere in the fact
statement a
clear “no” to foster
a relationship has been found.
17
Section 354D of Indian Penal Code

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In fact Reema, the victim told him to speak to her parents for the same. Instead of denying
the proposal she told him to talk to her parents. This is a strong sign that she was not against
marriage proposal.Section 354D, IPC states that an act would not amount to stalking if in the
particularcircumstance, such conduct was reasonable and justified. The accused was always
under the belief she was avoiding him because of pressure of her parents and she was felt
threatened bythe consequences. The fact that the accused, rather than stalking the girl, was
makingconstant efforts in good faith to come to know the real reason why the girl was
denyingcontact with him and whether she was making a decision with a free mind cannot be
excluded. Hence, the case couldn’t be brought under the horizon of stalking as held by the
appellant.Our client had constantly approached the parents of the girl with the proposal of
marriage andtried to convince them for same instead of taking up non- desirable means. This
clearly showslack of malice on the part of the accused.The circumstantial evidence relied
upon by the prosecution is not sufficient to raise anirresistible inference that the accused has
committed the offence of stalking.The burden of proving the charge lies upon the
prosecution. It has failed to discharge
its burden. Thus, the benefit has to go to the accused. The accused must be entitled to get the
benefit of doubt as held in
Ghurey Lal v. State of UP
.
18

Hence it is humbly submitted that the accused shouldn’t be held guilty under Section 354D,
IPC, 1860 as the accusations made will not stand the test of law even if the definition of
thissection is quite general and wide. It says that such conduct does not amount to stalking
in particular circumstances where the conduct was justified and reasonable. The conduct of
theRespondent was justified and reasonable as the acts of Reema clearly showed that she
wasinterested in our client and he in good faith went to talk with Reema thinking she was
underundue influence of her parents, as she was a bright student and her parents threatened
todiscontinue her studies if she kept any form of contact with the respondent.
18
Ghurey Lal v. State of UP on 30
th
Jul, 2008. Criminal Appeal No. 155 of 2006

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Moreover in the case of
Lata singh v.State of Uttar Pradesh
19
, the Supreme Court viewed theright to marry as a component of right to life under
Art 21
of Indian Constitution the court
observed that: “
This is a free and democratic country, and once a person becomes a major heor she can
marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-
caste marriage the maximum they can do is that they can cut off social relationswith the
son or daughter, but they cannot give threats or commit or instigate acts of violenceand
cannot harass the person who undergoes such intercaste marriage
”.
20
Since both Reema
and our client have the right to marry as per their choice. Reema’s parents cannot pressurize
Reema and assault our client when he went again with the proposal to marry Reema
andthreaten Reema to stay away from him or else they would discontinue her studies.
19

AIR 2006 SC 2522

20
http://www.legalservicesindia.com/article/1001/right-to-marry.html , last
visited on 12 Apr, 2019.

III. WHETHER THERE EXIST COMMON INTENTION BETWEEN RAMESH

ANDMAHESH AS PER THE SECTION 34 OF THE IPC, 1860?
It is humbly submitted before the Hon’ble Supreme Court that there existed no common
intention between Ramesh and Mahesh as per the Section 34 of the IPC, 1860.
SECTION 34 OF INDIAN PENAL CODE,1860
The
Section 34 of the Indian Penal Code, 1860
states
;
“When a criminal act is done by
several persons in furtherance of the common intention of all, each of such persons is
liablefor that act in the same manner as if it were done by
him alone.”
21
This section is intended to meet cases in which it may be difficult to distinguish between
theacts of the individual members of a party or to prove what part was exactly taken by each
ofthem in furtherance of the common intention of all.
22
The reason why all are deemed guilty insuch cases is that the presence of accomplices gives
encouragement, support and protection tothe person actually committing an act.
The essentialingredientsofSec.34ofIPC
as stated and restated by law Courts in plethoraof cases are:(i)

Common intention to commit a crime, and(ii)

Participation by all the accused in the act or acts in furtherance of the commonintention.
These two things establish their joint liability
23
.This provision is only a rule of evidence and does not create a substantive offence. It
laysdown the principle of joint liability. To charge a person under this section, it must be

shownthat he shared a common intention with another person or persons to commit a crime
andsubsequently the crime was perpetrated.
24
The Apex Court held in a case
25
, that in the case ofSec. 34 it is well established that a common intention presupposes prior
concert. It requires a pre-arranged plan because before a man can
be vicariously convicted for the criminal act ofanother, the act must have been done in
furtherance of the common intention of them all.
21

Section 34, Indiana Penal Code.

22
Mepa Dana, (1959) Bom LR 269.
23

Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.

24
Garib Singh v. State of Punjab, 1972 Cr LJ 1286.
25
Pandurang v. State of Hyderabad, AIR 1955 SC 216

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To constitute common intention it is necessary that the intention of each one of the
accusedwas known to the rest of them and was shared by them. The test to decide if the
intention ofone of them is common is to see whether the intention of one was known to the
other and wasshared by that other. In drawing the inference the true rule of law which is to be
applied is therule which requires that guilt is not to be inferred unless that is the only
inference whichfollows from the circumstances of the case and no other innocuous inference
can be drawn.
26
Each can individually cause a separate fatal blow. Yet, there may not exist a
commonintention if there was no prior meeting of the mind. In such a case, each would
beindividually liable for the injuries, he causes.
27

3.1 ABSENCE OF COMMON INTENTION

It is humbly submitted that the accused Ramesh is being dragged into the picture for
no justifiable cause and for no fault, participation or involvement of his in the alleged act
inquestion. It is submitted that neither the accused had any intention with Mahesh nor didhe
act in concert with Mahesh to commit such act.
‘Common intention’ implies a pre
-concerted plan and acting in concert pursuant to the plan. Common intention comes
into being prior to the commission of the act in point of time, which need not be a long gap.
28
There was no evidence that prior to the incident there was any common intention shared by
both the accused. The said intention did not develop at the time of the incident as welland
therefore, it was held that Sec. 34 of the Indian Penal Code cannot be resorted to holdaccused
guilty of any crime.
29
Therefore, it is humbly submitted that there was no common intention between Rameshand
Mahesh, in fact he did not have any knowledge of any such intention of Mahesh ofthrowing
acid on Reema as Ramesh strictly said no for the use of acid to which Maheshagreed. Hence,
in absence of common intention he must not be held liable under S.34 ofthe IPC.
26
Oswal Danji v. State, (1960) 1 Guj LR 145.
27
Nandu & Dhaneshwar Naik v. The State, 1976 CriLJ 250.
28
Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653.

29
Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.).

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3.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION
In view of the phraseology of S.34 existence of common intention is not enough, thecriminal
act impugned to attract S.34 must be committed in furtherance of commonintention. The
section operates only when it is found that the criminal act done by anindividual is in
furtherance of the common intention and not without it.
30

The words ‘infurtherance of the common intention of all’ in S.34, IPC do not
require that in order thatthe section may apply, all participants in the joint acts must either
have common intentionof committing the same offence or the common intention of
producing the same result bytheir joint act be performed.It is true that no concrete evidence is
required to prove a common intention between two people to commit an act. It is however
key here to understand that such evidence must besuch that it does not leave any room for
doubt against such an intention.
31
Moreover, to sustain a charge under s. 34, active participation in the commission of
thecriminal act is required which is clearly absent in the present case.It is humbly submitted
to honorable Court that the Accused-
1 can’t be punished under
the principle of joint liability because he had no intention to bring about grievous hurt or
evenknowledge of that such degree of hurt was a likely consequence. Similar situation
wasobserved in
Lala Ram vs State of M.P
.
32
Hence, it is humbly submitted that there was no presence of common intention on the partof
Ramesh in the act of throwing acid on the face of victim and hence the Accused-1,
Ramesh can’t be
charged under section 34 The counsel submits that since theaforementioned two essential
conditions have not been met with in the present. It isfurther submitted that the accused must
not be held liable under S.34 of IPC.
30
State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.
31
Dharam Pal v. State of Haryana, AIR 1978 SC 1492.
32
AIR 1994 SC 1452.

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IV. WHETHER THE STATE IS JUSTIFIED FOR SEEKING PERMISSION
FORADDITION OF CHARGE U/S 366 OF IPC?
It is humbly submitted before the Hon’ble Court that the present matter has already been tried
before the Sessions Court. The Magistrate, at the time of committal proceedings underSectio
n 209, CrPC did not charge the accused with Section 366, IPC, 1860.An application for
addition or alteration of the charge should be made immediately after thecharge has been read
out and explained by the Magistrate.
33
It is submitted that the prosecution had the opportunity to get the new charge of Section
366, IPC added against theaccused. But the prosecution did not do so.It is further submitted
that the High Court having inherent power to do so, did not find anyground to add a charge
under Section 366, IPC against the accused.The late framing of a charge would cause
prejudice to the accused and no injustice would becaused to the complainant by refusal.
34
It is to be noted that the High Court has acquitted the accused from all the charges and
hasdismissed the appeal of the State. When the accused was discharged of all the charges and
nocharge existed against him, an application by prosecution under Sec 216, CrPC was
notmaintainable.
35
The addition of a new charge will amount to re-opening of the trail and willdissipate the
valuable time of the Hon’ble Supreme Court.Hence, it is humbly requested from the Hon’ble
Court not
to maintain the permission of theState to add a charge under Sec 366, IPC against the
accused.
33
T.J.Edward v. C.A. Victor Immanuel, 2002 Cr LJ 1670 (ker).
34
Uma Dutta v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.
35
Sohan Lal v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.
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PRAYER
IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED ANDAUTH
ORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYSTHAT
THE
HON’BLE SUPREME COURT BE PLEASED:

1.To declarethat Mr.Rameshisnot guiltyof the crime of causing grievoushurtbyuse ofacidand

stalking. 2. To declare that permission shall not be given to the State to add a charge of
Section 366,IPC againsttheaccused. 3. To declare that the High Court
’s acquittal order of Mr.
Rameshshouldbereserved. AND/OR
PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD
C O N S C I E N C E . AND FOR THIS ACT OF KINDNESS, THE COUNSELS
FORT H E R E S P O N D E N T A S I N D U T Y B O U N D SHALL EVER
PRAY.
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THAT AJAY AND NARESH HAS NOT COMMITTED AN OFFENCE UNDER SECTION 326A
OF INDIAN PENAL CODE.