IN THE HIGH COURT OF KARNATAKA AT BANGALORE

CRIMINAL APPELATE JURISDICTION

Criminal Applicatio� No. _ Of 2019

[APPLICATION FILED UNDER SECTION 374 (2) OF THE

CODE OF CRIMINAL PROCEDURE, 1973]

IN THE MATTER OF:

SIDDHARTH RAJENDRA RUNWAL . ....APPLICANT

VERSUS

STATE OF MAHARASHTRA .....RESPONDENT

ON SUBMISSION TO THE HON'BLE IDGH COURT OF BOMBAY

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .... ....... .. .. . . ..

. .. . . . . ..... . . . ... ....... . .
. . . . ..... .. .... .
. . ........ . . . .. ... . .
. .. . . . . ... . ..... 3
..

INDEX OF AUTHORITIES . . . . . . . . . .. . .
... . . .. . .
. . . . . .. . . . . .. . . .... ... . . .. .. ..........
. .. . .. . . . ... .. ..... ..... . ...... .. 4
. . .. .. .. .

BOOKS.- . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : ................................................................. 4

CASES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 4

WEBSITES: . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . .
.. . . . .
. . . . . . . . . . . . . . .. . .
. . . ..... . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATEMENT OF JURISDICTION .......................................................................................... 9

STATEMENT OF FACTS ...................................................................................................... 11

ISSUE RAISED .. . . . . .. . . . . . . . ... ...... . . .. .

. . .. . . . . . . . . .. . . . . . . . . ..... . . . .. . . .. . . . . . . . ... . .... ..
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . l3

SUMMARY OF AR G UMENTS ............................................................................................. 14

WRITTEN SUBMISSIONS . . . . . . . . . .. . . . . . . . . . . . . . . . ..
. . . .. . . . .
. . . . . . . . . . . .... . . . . . . . . .. . . . . . .. . . . . . . . . .. . .. . .. . .. ... ....... 15
. .

PRAYER . . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . .. . . . .. .
. . . . . . . . . . . . .. . . . . . . .. .
. . . .. . . .. . . . .. . .. . . . . . . .. . . . .. . .. . . . . . . . . . .. . ..
... . .. . . . . . . . . . . . . . 40

MEMORIAL ON BEHALF OF THE RESPONDENT Page 2 of27

LIST OF ABBREVATIONS

• � -Paragraph

• AIR -All India Reporter

• ed. -Edition

• p .-Page

• pp. -Pages

• SC -Supreme Court

• SCC -Supreme Court Cases

• SCR -Supreme Court Reporter

• Supp. -Supplement

• Vol. -Volume

• UDHR - Universal Declaration of Human Rights

• ICCPR - International Covenant on Civil and Political Rights

MEMORIAL ON BEHALF OF TIIE RESPONDENT Page 3 of27

INDEX OF AUTHORITIES

Books Referred

Commentary on the Code of Criminal Procedure Act, 1973 by Ratanlal & Dhirajlal

Commentary on the Indian Penal Cope, 1860 by Ra tanlal & Dh i raj l al

The Indian Penal Code; With Commentary by W. R. Hamilton

Commentary on the Indian Evidence Act, 1872 by Ratanlal and Dhirajlal

Commentary on the Constitution of India - Volumes I and II by Durga Das Basu

Commentary on Protection of Women from Domestic Violence Act, 2005 & Rules: With Allied

Laws - V. R. Choudhari

Cases Referred

ng v. State ofHyderabad, AIR 1955SC216: 1955 CrLJ 572

Mehbub Shah . Emperor, AIR 1949 PC118 (120-121).

Garib Singh v. State df.eu niab, 1972 CrLJ 1286 (SC): (1972) 3 SCC 418: AlR 1973 SC 460.

'"""""'
Ram Taha! v. State of
. UP., ']{172 CrLJ 227 (S C) (1972) 1SCC136: 1972 CrLJ 227
"'
'"''-,

B.N Srikantiah, AIR 1958SC67i>'l958 CrLJ 1251.

'·

'·
'

State. v. Dharnidhar, AIR 1976 06 79: 41-(;ut LT 29.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 4 of27

, Sita Ram v. State ofBihar, 19 76 CrLJ 800.
,
��'..
ShyamSingh v.State of UP., 2001 CrLJ 1 6 32 9All)

Waliullah �&ate of UP. , AIR 1951 ALL 21 : 52 CrLJ 1 31 : 1 950All LJ 88 4( FB).

Basher v.State,,/ 95 3CrLJ 1 505.

\
\
\
Risideo Pande v.St te of UP;. AIR 1955SC 334.
�

��
'·

Jamuna Chowdhary late of Bihar, 1971 CrLJ 898.

\
Emperor v. Maung Po Nyan, AIR 1916 Low Bur 98 : 17 CrLJ 465.
\\
P.P. v. NS. Murthy, 197 3Ct;LJ 1 238(AP) .

Emperor v. Jiwa Arma, 3 Crt:{ 186 6( Gau).

Sridevi, 1 97 4CrLJ 1 26 ( All).

Abdul Sattar v. Moti Bibi, AIR 19 3()1Cal 720 : 1 27JC 551 :31 CrLJ 1 223
.

C.N. Na rayan AIR 1953 SC 47 8

\
\
\

Da ityari, Tripatti v.Subodh Chandra Ch.pudhwy, (19 42) 2Cal 507

Prathibha Rani Vs Sura} Kumar, AIR 198 5.SC 628

RashmiKumar v. Mahesh
. .
Kumar Bhada, (19 97) 2SCC 397
.
.

Bairo Prasad v. Laxmibai, 1991 CrLJ 25 35(MP) '

Wa::ir Chand v. State ofHaryana, AIR 1 98 9SC 378.

State v. Regulagadda Anandarao, 1996 Cr LJ 4503 (Aly

'"\.

TS Prasad v. State. 1 998 Cr U 3900 (Ker)

SureshKumarSingh v.State, 2008 Cr LJ 25 47(All)

_I

MEMORIAL ON BEHALF OF THE RESPONDENT Page 5 of27

 Issa Venkateswarlu v. State, 2 008 Cr LJ 4 09 2(AP)

rbachan Singh v. Satpal Singh, AIR 1990 SC 2 09.

Bashe v. State, 2 004 Cr LJ 3 78 5 (Ke1)

Shiv Daya rora v. Renu Arora, 2007 Cr LJ 2 972 ( P&H )

Raghubir Sing v. State, 2 007 Cr LJ 2 979 (HP)

\
Thilari Narayana 'IV: o v . State, 2003 Cr LJ NOC 171 (AP)
\\
Wazir Chand v . State'ofHwyana, AIR 1 989 SC 3 78

Reguny Sampath Reddy v . State, 1996 Cr LJ 1 528(AP)

Abdul Barek v. State, 1 996 Cr LJ 1837 (Cal)

Pukh Raj, (1953) 3 Raj 983

Abraham, AIR 1960Ker 23 6

Mohammed Sabad A li v. Tlwleswar Borah, (1954 ) 6 Ass 274

Allipuram Subbaih v. Brojja Venkata Subbamma, AIR 1 942 Mad 672

Jogayya, (1887) IO Mad 353,354; Vaz v . Dias, (1 92 9) 32 Bom LR 1 03 .

Abraham v. State q fKera/a, AIR 1960 Ker 216:1960 CrLJ 910 (Kant)

Mrutunjaya Pattanaik v. Dhane.rn:ar Dalabehora,' � 990 ) l Crimes 1 0 5( Ori).

Silvesrer Vaz v . Louis Dias, AIR 1 930 Born 120. \,
\
S. Gopal, 1953 CrLJ 744.
\
Guranditta v. Emperor, AIR 1930 Lah 344 (2): 127 JC 860 :3�1LJ 62.
\\
Jayakrishna Samanta v. Emperor, AIR 1 917 Cal 570 : 24 Cal LJ 13'\ 18 CrLJ 1 7.
'\

MEMORJAL ON BEHALF OF THE RESPONDENT Page 6 of27

 Uday sin v.State ofMaharashtra, AIR 200 7 NOC 1640 (Born)

Thimma v.S te ofMysore, AIR 19 71SC 1871

LatifKhan v. stat 200 8 Cr LJ 3 246

Natturasu v. State, 19 8 CrLJ 1762 (Mad)

\
State ofAndhra Pradesh �imalKrishna Kzmdu, AIR 1997SC 3 589
•

Suresh Vasudeva v. state, 19 ,Cr LJ677(Del)

\
Bharat Chaudhary v. State ofBiPiq( (2003) 8SCC 77: 2003SCC (Cri)
,

\
Adri DharanDas v.State �f West B �a!. 200 5 CrLJ 1706 (SC): (200 5) 2SCC 303.
\
Om Prakash v.State ofPunjab, 200 2 Ol\rimes 124 (P&H).
'·

SajjanKumar v.State, 199 1 CrlJ 645, 633 (Del)

.,

State <?fKarnataka v. Rangappa, 2004 CrLJ 272(t (272 1) (Kant-DB).

Rajesh Utra Kumar v. State of Chattisgarh, (2003) 3 Cur Cri R 52 8.

Avtar Singh v. State ofHwyana, 2006 CrLJ l 866 ( 1 869, l 870) (P& HJ.

PG Gupta v.State, (200 2) 10 1DLT 193.

Gaffarsah v. State �fKarnataka, 199 1 CrLJ 2 136, 2 13 8 (Kant).

Munna Muni Khan v. State of Rajasthan, 1996 CrlJ 83 1 (Raj) .

Iqbal Singh v. State ofHarayana, 2007 CrlJ (NOC) 243 (P&H).

MEMORIAL ON BEHALF OF THE RESPONDENT Page 7 of27

Website Referred

www.westlaw.com

www.indiankanoon.com

www.manupatra.com

www.supremecourtofindia.nic.in

MEMORIAL ON BEHALF OF THE RESPONDENT Page 8 of27

STATEMENT OF JURISDICTION

The applicant has approached the Hon'ble High Com1: under Section 374 (2) of the Code of

Criminal Procedure, 1973 against the order passed by the Hon'ble Session's Com1 in the case of

The State Vs. Raghav & Ors,. Secction 374 (2) of the Code of Criminal Procedure, 1973 which

reads as under:

"374. Appeals from convictions"

(2) Any person convicted on trial held by a Session judge or an

Additional Session Judge or on a trial held by any other court in which
a sentence of imprisonment for more than 7 years has been passed against him
or against any other person convicted at the same trial" may appeal to the High
Court

The Respondent humbly submits to the jurisdiction invoked by the applicants.

STATEMENT OF FACTS

MEMORIAL ON BEHALF OF THE RESPONDENT Page 9 of27

• The Deceased Suresh aged 24 years and the Appellants daughter Manya aged about 20 years
were in relationship. The Appellant No.I who along with his family consisting of his wife an d

three children namely Raja, Manya and Rohan aged about 17 years were residing in an

apartment where the Appellant No. 2 Mr. Prakash was also dwding in the same apartment

with his family. The Appellant No. l Mr. Raghav on the Knowledge of the relationship of his

daughters Manya with Mr. Suresh got offended and had strictly warned the deceased to stay

away from his daughter and severally admonished and scolded manya to refrain from meeting

the deceased in spite of the warning the deceased and the Appellant No. 1 daughter Manya

continued their relationship. One day Appellant No. 1 saw Manya and the deceased together

again near their house and lasting his temper Appellant No. 1 started abusing the deceased and

by hearing the sound the Brother of the Appellant No. l, Mr. Prakash along with the Appellant

No.3 & 4 i.e. the sons of the Appellant No.1 came to the incident spot along with the lathi's

and immediately started beating the deceased blue and black and gave repeated blows on the

vital parts like chest and head portion of the deceased which caused serious injury to the head

and fracture of three ribs of the deceased in the presence of Manya. The deceased was

immediately rushed to the hospital and after three days of treatment was declared dead due to

the multiple injuries caused by the Appellants and the post-mortem report confmned the

serious injuries on head and fracture of three ribs of the deceased. F IR was initially registered

against Appellants forihe offence punishable under section 307 R/w 34 of the Indian Penal

Code and after the death of the deceased charges were altered to Section 302 R/w 34 of the

Indian Penal Code. The Hon'ble Trial Com1 after a detailed trail and investigation has

convicte d the Appellants for the offence punishable U/s 302 R!w 34 of IPC and sentenced all

the Appellants to life imprisonment for having committed murder.

ISSUE RAISED

MEMOR!AL ON BEHALF OF THE RESPONDENT Page IO of27

 1. The Judgment passed by the Hon'ble Session Court is justifiable and stands the test of

legal v alidity .

Y The Act of the Accused tantamount to Honour Killing.

Y Prosecution have proved the case beyond the reasonable doubt.

2. The Accused's had the common intention to do the alleged crime.

Y Common intention to commit a criminal act development at the spur of the

moment. .

3. Due procedure of law has been followed in the trail of the Juvenile.

MEMORIAL ON BE HA Lr OF THE RESPONDENT Page 11 of27

SUMMARY OF ARGUMENTS

• The Judgment passed by the Hon'ble Session Court is justifiable and stands

the test of legal validity.

I. The Counsel for the Respondents most humbly submit before this Hon'ble Court that, the

•
Conviction is appropriate and .the conviction of the accused under section 300 of IPC is

correct and as per the demands ofjustice. As the circumstances of the case is of conclusive

nature and chain of circumstances is complete as to unerringly point to the guilt of the

Accused's. The prosecution has also proved that the Accused's had a clear motive and

intention. The T rial Court has rightly convicted the Accused's under section 302 R/w 34

ofIPC.

2. The counsel for the Respondents most humbly submit that, the circumstantial evidence by

which the crime has been established, clearly lead to one singular conclusion that the anger

of the father and brothers on the involvement of the sister with the deceased, was the only

motive behind crime. from the aforesaid findings it is vivid that crime was committed in a

planned and cold blooded manner with the motive that has emanated due to feeling of some

kind uncalled for and unwarranted superiority over the daughter that has blinded the

thought of "choice available" to a daughter/sister-a representative of women as a class.

3. The Counsel for the Respondents most humbly submit that, When men who expected a

lathi fight use their lathis w ith the result that a man is killed it must be taken, in the absence­

off special circumstances that they were doing an act so imminently dangerous that it must

MEMORIAL ON BEHALF OF THE RESPONDENT Page 12 of27

 in all probability cause such bodily injmy as likely to cause death, as held the Hon'ble

Apex Court in the case reported in AIR 1929 ALL 160.

4. The Respondent most humbly submit that, the medical reports clearly depicts that there are

severe head injury and fracture of three ribs and the deceased was dead due the multiple

injuries caused by the Appellants/Accused's. the Hon'ble Apex Court in the case of State

of M.P. Vs. Goloo Raikar in Crl. Appeal No. 185/2016 bas clearly held that "when

medical report establishes that the injuries inflicted intentionally on the deceased by the

accused, were cumulatively sufficient to cause death in the ordinary course of nature,

Thirdly of Section 300 IPC is attracted, even if no significant injury had been inflicted on

a vital part of the body and when the accused could not be said to have the intention of

causing death''. hence, the instant case three persons attack on an unarmed person with an

deadly weapon 'lathi' continuously on vital parts of body especially on the head and chest

in such a manner so as to cause fracture of three ribs and a severe head injury which lead

to the death of the deceased, clearly depicts the intention of the Accused in attacking the

Deceased was to put an end to the life of the deceased so as to protect the reputation of his

family by protecting their daughter from marrying an unknown person.

5. The Respondents humbly submit that, "In the present case, the fact that the accused act of

repeated blowing shots on vital parts of the deceased which lead to the injury of the internal

parts of the deceased which has been established. The incised· injuries caused which were

intentional and were sufficient to cause death in the ordinary course of nature even if it

cannot be said that his death was intended. This is sutlicient to bring.the case within thirdly

MEMORIAL ON BEHALF OF THE RESPONDENT Page 13 of27

 of Section 300.". as held the Hon'ble Apex Court in the case of State of Andhra Pradesh

vs. Rayavarapu Punnayya and Anr. reported in (1976) 4 SCC 382).

6. In State of Andhra Pradesh vs. Rayavarapu Punnayya and Anr. (1976) 4 SCC 382), the

Hon Apex Court had to deal with a similar situation. In that case, the accused 5 in number

beat the victim with sticks on the legs and arms of the deceased and when hospitalized the

deceased succumbed to his injuries. The medical officer who conducted the autopsy opined

that the cause of death was shock and haemorrhage resulting from multiple injuries and

said injuries were cumulatively sufficient to cause death in the ordinary course of nature.

Question arose whether in such a case when no significant injury had been inflicted on a

vital part of the body, and the weapons used were sticks and the accused could not be said

to have the intention of causing death, the offence would be 'murder' or merely 'culpable

homicide not amounting to murder'. This Court answered the question in these terms:

"Para 39.

All these acts of the accused were preplanned an d inten tional ,

which, considered o bj ectively in the light of the medical evidence,
were sufficient in the ordinary cou rse of nature to cause death.
The mere fact that the beating was designedly confined by the
assailants to the legs and arms, or that none of the multiple
injuries inflicted was individually sufficient in the ordinary
course of nature to cause death, will not exclude the application
of clause thirdy
l of Sedion 300. The expression "bodily injury" in
clause thirdly includes also its plural, so that the clause would
c over a case where all the injuries intentionally caused by the
accused are cumulatively sufficient to cause the death in the
ordinary course of nature, even if none of those injuries
i nd ividually measures upto such sufficiency . The sufficiency
spoken of in this clause, as already noticed, is the high
probability of death in.the ordinary course of nature, and if such
sufficiency exists and death is caused and the injury causing it
is intentional, the case would fall under clause thirdly of Section

MEMORIAL ON BEHALF OF THE RESPONDEN T Page 14 of27

 300. All the conditions which are a prerequisite for the
applicability of this clause have been established and the offence
committed by the accused, in the instant case was 'murder'."

>- THE ACT OF THE ACCUSED'S TANTAMOUNT TO

HONOUR KILING

7. The counsel for the Respon dent ' s hereby establish the different facet of the case which

clearly showcases the motive of the Accused's in executing such a heinous predetermined

act. The young man (deceased) chosen by the sister was murdered by the father and

brothers who had received education in good educational institutions, observed that the

Accused persons had not cultivated the ability to abandon the deprecable feelings and

attitude for centuries. Perhaps, they had harboured the fancy that it is an idea of which time

had arrived from time immemorial and ought to stay till eternity, and had forgotten the

daughter's right to choose her partner, which is also a :fundamental right and an inherent

aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such

offences are resultant of the State's incapacity or inability to protect the fundamental rights

of its citizens.

8. The counsel for the Respondent's humbly submit that, One may feel "My honour is my

life" but that d_oes not mean sustaining one's honour at the cost of another. Freedom,

independence, constitutional identity, individual choice and thought of a woman, be a wife

or sister or daughter or mother, cannot be allowed to be curtailed definitely not by

application of physical force or threat or mental cruelty in the name of his self-assumed

honour. That apart, nei�her the family members nor the members of the collective has any

right to assault the boy chosen by the girl. Her individual choice is her self-respect and

MEMORIAL ON BEHALF OF THE RESPONDENT Page 15 of27

 creating dent in it is destroying her honour. And to impose so-called brotherly or fatherly

honour or class honour by eliminating her choice is a c rime of extreme brutality, more so,

when it is done under a guise. It is a vice, condemnable and deplorable perception of

"honour", comparable to medieval obsessive assertions, as held by the Hon'ble Apex Court

in the case of Asha Ranjan v. State of Bihar and Ors, reported in (2017) 4 sec 397.

9. In the present case, the circumstantial evidence by which the crime has been established,

clearly lead to one singular conclusion that the anger of the father and brothers was on the

involvement of the sister with the deceased, was the only motive behind crime.

10. The counsel for the Respondent s hwnbly submit that, In our opinion honour killings, for
'

whatever reason, come within the category of the rarest of ra re cases deserving death

punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our

nation. This is necessary as a deterrent for such outrageous, uncivilized behavior. All

persons who are planning to perpetrate "honour" killings should know that the gallows

await them.

:;;.. Prosecution have proved the case beyond the reasonable doubt.

1 1. The Respondent most humbly submit that, the instant case is a prima facie case of Murder

with clear intent and p red etermined plan. The Circumstantial evidence clearly laydowns

the motive, intent and Actus Reius of the Accused's.

12. The Respondents Humbly submit that, the Daughter of the Appellant is the eye witness to

the present case and the sole testimony of Manya against the Appellant would lead to the

MEMORIALON BEHALF OF THE RESPONDENT Page 16 of27

 .

conviction of the Appellants and the prosecution case is proved beyond the reasonable

ground, it is a case of a direct evidence as there is an eye witness in the present case.

13. The Hon'ble High Court of Rajasthan in a case of Pankaj, vs. State of Rajasthan

(03.09.2008 - RAJHC): MANU/RH/0484/2008 clearly held that the evidence of the sole

eye witness has to be scrutinised with caution and circumspection. Conviction can be

recorded on the basis of the statement of single eye witness provided-his credibility is not

taken by any adverse circumstance appearing on the record against him and the court at the

same time is convinced that he is a truthful witness.

14. The Respondents humbly submit that, in the case of Angnoo and others vs. State of U

P (V. Bhargava and I.D. Dua JJ.) (para 8) That an eyewitness is the brother of the deceased

(the relationship would add value to his evidence because he would be interested in getting
)
the real culprit, rather than an innocent person, punished.

15. in the similar case in State ofU P vs. Samman Das (J.M. Shelat and H.R. Khanna JJ) (Para

20) "In a murder trial the relationship of the eyewitness to the deceased is not a sufficient

ground for discrediting of his testimony unless a motive is alleged and proved against him

to spare the real assailant and falsely involve another person in the place of the ass ail ant."

16. The Hon'ble Apex Court in the case of Sohrabkhan v. State of M.P., 1992 Supp (2) SCC

173 reiterated the law laid down in Vadivelu Thevar v. State ofMadras [AIR 1957 SC 614]

that, the dictum that the evidence of a single witness if wholly reliable, a conviction can be

safol y based on that evidence alone. After going through the eviderice of P\V 3, \\'C are

convinced that his evidence is wholly reliable and it does not suffer from any infirmity. Ex.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 17 of27

 P 20 is also a document which can be accepted and acted upon. In the result, we are in full

agreement with the conclusion arrived at by the High Court relying upon the testimony of

PW 3 and the dying declaration Ex. P 20. We also on scrutinising the evidence carefully,

notwithstanding the reasoning of the High C ourt, unhesjtatingly come to the conclusion

that the prosecution has made out the case against the appellant by leading formidable

evidence.

17. The Respondents further submit that, based on the arguments advanced above it is

evidently clear that, the instant case is a fit case to be trailed under Section 302. For the act

done by the accused must be punished, the act committed by the accused

comes under the Section300 of Indian Penal code. The said section prescribes the

punishment for murder. In the present case, Accused's have conimitted the murder of his

daughter chosen partner. As proved above they are liable under Section 302, in the Section

302 the pun ishm ent prescribed is either death or life imprisonment. Here, even though the

instant case is a fit case to be punished with death penalty. The Hon'ble Session Court have

sentenced to life. Hence, the present appeal challenging the order of the Hon'ble Session

court has to be dismissed at limirte, as this is a crime of extreme brutality an act of

barbarism if let unpunished wo uld become a precedent for future crimes. Hence the order

of the Hon'ble Sesion's Court has to be upheld by setting aside the present Appeal at

limine.

• The Accused's had the common intention to do the alleged crime.

18. The argument th at there wasn't a prior concert of minds between all the accused is baseless,

The allegations made against the accused are justifiable. as held by the Hon'ble Apex Court

MEMORIAL ON BEHALF OF THE RESPONDENT Page 18 of27

 in the case of Abdul Sayeed v. State ofM.P., (2010) 10 SCC 259, Para 49. Section 34IPC

carves out an exception from general law that a person is responsible for his own act, as

it provides that a person can also be held vicariously responsible for the act of others if

he has the "common intention" to commit the offence. The phrase "common intention"

implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common

intention must be there prior to the commission of the offence in point of time. The

common intention to bring about a particular result may also well develop on the spot a s

between a number of persons, with reference to the facts of the case and circumstances

existing thereto. The common intention under Section 34 IPC is to be understood in a

different sense from the "same intention·' or "similar intention" or "common object". The

persons having similar intention which is not the result of the prearranged plan cannot be

held guilty of the criminal act with the aid of Section 34 IPC.

Section 34:

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.

Principle -

As stated in a Supreme Court case:

In case of S. 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 of

another, the act must have be e n done in furtherance of the common

MEMORIAL ON BEHALF OF THE RESPONDENT Page 19 of27

 intention of all of the m. 1 Accordingly, there must have been prior

meeting of the minds. Several persons can simultaneously attack a

man. Each can have the same intention, that is, intention to kill, and

each can individually inflict a separate fatal blow and yet none would

have the common intention required by the section because there

was no prior meeting of the minds to form a pre-arranged plan.2

Therefore S. 34, IPC, would app ly ev e n if no charge is framed under

.

that se ction provided of course from the evidence it becomes clear

that there was pre-arranged plan to achieve the commonly intended

object.3 Thus where six persons were charged under ss. 148,

302/ 149 and 307/149, IPC, but two were acquitted, the remaining

four accused could be convicted on the charges of murder and

attempt to murder with the aid of S.34 of the Penal Code.4 This

section really means that if two or more persons intentionally do a

thing jointly, it is just as same as if each of them had done it

individually.

19. The Respondent most humbly submit that, the antithesis is between

the preliminary stages, the agreement, the preparation, the planning that

is covered by S. 190, and the stage of commission when the plan is put

into effect and carried out. In other to convict a person for an offence with

the aid of provisions of S. 34 it is not necessary that the person should

with his own hands commit the criminal act.

1 P:mdurang v. State ofHyderabad, AIR 1955 SC 216: 1955 CrLJ 572.

0 Mehbub Shah v. Emperor, AIR 1949 PC 118 (120-121 ).

' Garib Singh v. State of Punjab, 1972 CrLJ 1286 (SC): (1972) 3 SCC 418: AIR 1973 SC 460.

� Ram Taha! V. State of U.P., 1972 C r L J 227 (SC) (1972) 1 sec 136 : 1972 CrLJ 227

MEMORIAL ON BEHALF OF THE RESPONDENT Page 20 of27

 );> Common Intention-

20. The Respondent further submit that, In the instance case, Accused

Nos. 1, 2, 3 and 4 have the common intention of causing hurt to the

deceased in order to protect their daughter from illicit relationship with

the deceased and in order to protect the honour and pride of their family

and they had participated in various acts done hy them in furtherance of

the said common intention.

);> COMMON INTENTION TO COMMIT A CRIMINAL ACT:

DEVELOPMENT AT THE SPURT

2 1. As already stated for the operation of S.34 there must be pre-

arranged plan. But a pre-arranged plan does not mean that there should

be a conference where resolutions are moved and a decision arrived at to

commit a particular crime, the plan might have been arranged just half a

minute before the actual beating started. 5 Relying on this observation, an

Allahabad case held common intention can certainJy be found by conduct;

neither a written nor an oral agreement is needed to constitute a common

.
intention. in most cases of common intention, there is no agreement

neither in writing or oral. As common intention can be found only a

moment before doing of the criminal act, the suddenness of a quarrel or

fight does not by itself negative the existence of common intention, just as

the fight is sudden, the common intention also might have been found

5 Waliullah v. State ofU.P., AIR 1951ALL21: 52 CrLJ 131:1950 All LJ 884 (FB).

MEMORIALON BEHALF OF THE RESPONDENT Page 21 of27

 suddenly. Accepting the le gal position that common inte ntion may develop

at the spot, the Supreme Court held: 'common intention' under S.34 pre­

supposes a prior concert, that is a prior meeting of the minds, but such

pre-concert can develop on the spot and without any long interval of time

between it and the doing of the act commonly intended. Therefore, the

argument that there wasn't a prior concert of minds between all the

accused is b asel ess .

22. Therefore, based on the above principles and w el l settled proposition

of law it is abundantly clear that, though the Appellant No. 1 had no any

positive act is equally liable, since all the Accused/ Appellants had common

intention and motive against the deceased in order to safeguard and

protect their daughter as well their family reputation and honour.

• Due procedure of law has been followed in the trail of the

Juvenile.

23. The learned counsel for the Respondent most humbly submits that, the

Appellant being "child" if not have committed "heinous crime", then they

are to be tried by Juvenile Justice Board and not to the Children's Court

which is nothing but an Ses sions Court.

section 2 (12)

"child" means a person who has not completed eighteen

years of age

MEMO RIAL ON BEHALF OF THE RESPONDENT Page 22 of27

 24. The Respondents further submit that, Under section 15 of the said Act,

preliminary assessment in respect of offence whether is heinous, is to be

made by Juvenile Justice Board. The word "heinous offences" is defined

under section 2 (33) of the Juvenile Justice Act, which states as follows:

Section "2 (33).

"heinous offences" includes the offences for which the

minimum punishment under the Indian Penal Code (45 of
1860) or any other law for the time being in force is
imprisonment for seven years or more" .

In the instant case, the Appellant No. 4 is been trailed for

Section 302 oflndian Penal Code, which minimum punishment is

life and maximum is death penalty. Hence, the said act of the

Appellant No.4 in accordance to section 2 (23) of the Juvenile

Justice Act, it is a Heinous Crime which can be trailed by an

Children's Court which is nothing but an Sessions Court.

25. The Respondent further submit that, Juvenile Justice Board refers

them to a psychologist for assessment by an order. Pursuant to the said

order, assessment report as per section 15 of the Juvenile Justice Act Will

be placed before Juvenile Justice Board, The Board will considered the

facts of the case and also interact with Child in Conflict with Law (CCL)

and _make their assessment that the mental as well as physical capacity of

CCL was sufficient to commit crime. whether the Applicant was aware

aoout the consequences and that he voluntarily participated in the offence

and subsequent to that, Juvenile Justice Board transferrs the matter to

MEMORIAL ON BEHALF OF THE RESPONDENT Page 23 of27

 Children's Court vide an order as per section 18 (3) of the said Act to trail '

the matter before a Children's Court which is nothing but a Sessions

Court.

26. The Respondent further submit that, Section 18 (3) of the said Act

states that, on preliminary assessment under section 15 if heinous offence

is committed by a child between the age group of 16 to 18 years, then

Juvenile Justice Board may transfer the trial of the case of that child to

Children's Court.

27. Thus, if a child is between 16 to 18 years, is required to send for

inquiry under section 15 of the said Act only when he commits heinous

offence. Juvenile Justice Board has to take the following steps : -

(a) To ascertain the age of the child

Whether he is above 16 years old, but below 18 years

old ?

(b) Nature of the offence

(i) Whether the offence is heinous under section 2 (33) of the

said Act, which is to be decided on the · basis of minimum
punishment of 7 years for the offence;

(ii) Whether it is a heinous offence or a serious· offence or a

petty offence;

(iii) In the offence, if minimum punishment is given for 7

years, then only it is to be considered as heinous offence
under section 2 (33) of the said Act.

(c) Juvenile Justice Board has to take i.."'lto account section

18 of the said Act. If the child has committed (a) serious
offence

MEMORIAL ON BEHALF OF THE RESPONDENT Page 24 of27

 (b) petty offence or (c) child below 16 years if has committed
heinous offence, then Juvenile Justice Board is required to
pass an order after taking into account the circumstances as
mentioned in section 18 (a) to (g) and 18 (2) of the said Act.

(d) Juvenile Justice Board to consider section 15 of the said

Act only if the offence is of heinous nature and it is committed
by a child, who is between 16 to 18 years, then Juvenile
Justice Board shall go for preliminary assessment.

(e) Under section 15 of the said Act, Juvenile Justice Board

may take the assistance of expert physiologists or
psychosocial workers.
(f) Thereafter, Juvenile Justice Board shall pass an order
under section 18 (3) of the said Act if child as an adult by
transferring the trial of the case to Children's Court.

(g) The Children's Court to try the child as per section 19 of

the said Act.

28. The Respondent most humbly submit that, the Juvenile Justice Act

doesn't impose a restriction on the punishment but only prescribes an

certain procedure with respect to trail and with regard to the offence falling

under the definition of Section 2 (23) of the Act i.e. Heinous Crimes, are

expressly said to be trailed by an Children's Court which is nothing but an

Session's Court. Hence in the instant case the act of the Appellant No.4

falls under the definition of Heinous Crime and has been trailed by the

Sessions Court and has been sentenced for life. Hence as the facts with

respect to the order under 18 (3) is silent, has there is no any. bar with

respect to punishment and the court being of the same rank the

Respondents based on the gravity of the offence and the offence being an

MEMORIAL ON BEHALF OF THE RESPONDENT Page 25 of27

 act of barbaric crime, most humbly pray before this Hon'ble Court to kindly

uph eld the s entence imposed by the Hon'ble Session's Court in the interest

of social good and justice.

29. The Respondent further su bmit, if the Hon'ble Court still finds any

lacuna in the procedure followed with respect to the Juvenile, the

Respondent humbly submit that, this Hon'ble Court interms of the power

vested under section 386 of the Criminal Procedure Code shall remit back

the case of the Juvenile to the appropriate forum established in accordance

to the law.

30. The Respondents thereby based on the above contention and issues

raised most hu mbly submit that, the Hon'ble Sessions Court has r ightly

convicted the Accused's/ Appellants for life sentence for having committed

an offence under section 302 r /w 34 of IPC and also the Respondent

hereby have clearly put-forth the different facet of the case which clearly

establishes the act of the Accused to that of Honour killing which is

nothing but an barbaric crime, an social evil which if unpunished would

become an precedent for the future crimes. Hence, the present appeal shall

be dismissed at limine in the interest of social good and justice.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 26of27

 PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments advanced, it is most

humbly prayed and implored before the Hon'ble Court, that it may be graciously pleased to:

1. To declare that the judgement passed by the Hon'ble Sessions Court is valid.

2. To declare that the Appellants have been rightly convicted for the offence punishable under

section 302 of the Indian Penal Code.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,

Fairness & Good Conscience. For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

, .
Date: ............... .. .. ... Sd/-.

Place ..................... (Counsel for Respondent)

MEMORIAL ON BEHALF OF THE RESPONDENT Page 27 of27