10th Semester Moot Court 2019

BEFORE THE HONORABLE HIGH COURT OF HIMACHAL PRADESH

Sher Singh Appellant

Rajender Singh s/o. Sher Singh Appellant 2
Sanjay Singh Brother of Sher Singh Appellant 3

Versus

Kamal Respondent

MEMORANDUM SUBMITTED ON BEHALF OF RESPONDENT

Name – Komal Kohli

B.A.Llb 5th year
Roll No. 524
 MEMORANDUM FOR THE RESPONDENT

BEFORE THE HONORABLE HIGH COURT OF HIMACHAL PRADESH

CRIMINAL APPELLATE JURISDICTION

APPLICATION NO. 57 OF 2010

(With prayer of dismissal of Appeal)

Sher Singh & others Appellant

Versus

State Respondent
 TABLE OF CONTENTS

S.No. Particulars

1. Index of Authorities

2. Statement of Jurisdiction

3. Statement of Facts

4. Statement of issues

5. Summary of Arguments

6. Advanced Arguments or

Pleadings

7. Prayer
 INDEX OF AUTHORITIES

1. STATUTES:
 The Indian Penal Code 1860
 The Code of Criminal Procedure 1973
 The Indian Evidence Act 1876
2. JUDICIAL DECISIONS:
 Bhupan v/s State of Madhya Pradesh AIR 2002 SC 820
(Page 303 Indian Evidence Act, Chapter – of the Relevancy of facts)

 Dajya Moshya Bhil v/s State of Maharashtara 1984 Cr. LJ

1728 (SC) Page 107 IPC
 Nagakhan AIR 1921 LB 4 (Page 466 IPC)
 Shakuntala vs State of Haryana AIR 2007 SC 2709 (page 2711)
3. BOOKS:
 The Indian Penal Code 1860 by Prof. S. N. Misra
 The Code of Criminal Procedure 1973 by Prof. S. N. Misra
 The Indian Evidence Act 1876 By Adv. Batuk Lal
 STATEMENT OF JURISDICTION

The appellant has submitted Appeal under section 374 (2) of The Code of Criminal
Procedure, 1973 challenging other Trail Court. The Respondent humbly submits
that the Appeal is not maintainable and challenges the assertions made in appeal.
 STATEMENT OF FACTS

 Sher Singh (Appellant 1), was a farmer living with his wife Sunita, Son
Rajender (Appellant 2), Daughter Reena and Brother Sanjay Singh
(Appellant 3).
 Deceased Kamal was a boy living in the village and was working 12 KM
away from the village in Jhajjar. He was the only son and sole bread earner
of his family.
 Sher Singh borrowed a debt of Rs. 20000/= from Kamal and needed some
time to repay the debt.
 On 8th August 2010, Sher Singh invited Kamal to his house to collect the
Debt money. Kamal reached around 8.30 PM at their house.
 Sher Singh started abusing Kamal. Rajender brought lathi and gave blows
on the legs of Kamal. Sanjay grabed the lathi and started beating Kamal and
gave blows on Kamal’s head and chest.
 Kamal was seriously injured and was taken to hospital by the villagers
where he succumbed to his injuries and died 3 days later.
 Postmortem report confirmed that Kamal suffered grievous injuries on
head and fractures of 3 ribs which resulted in death of Kamal.
 First Information report was registered u/s 307 read with section 34 of
Indian Penal Code. And after the death of Kamal, Section 302 was added in
the FIR.
 The Session Court convicted Appellant 1, 2 and 3 u/s 302 read with section
34 and sentenced them to life imprisonment for having committed the
murder of Kamal.
 The Accused appealed against their conviction in Honorable High Court of
Himachal Pradesh.
 STATEMENT OF ISSUES

1. Whether the appeal is maintainable in the Appellant Court or not?

2. Whether all the accused persons had the common intention to commit
murder ?
3. Whether the act of the deceased amounted to grave and sudden
provocation?
4. Whether the Honorable Session Court was justified in sentencing the
Appellants with life imprisonment in connection with the act committed by
them?
 SUMMARY OF ARGUMENTS

Argument No. 1:

The appeal under this Honorable Court is not maintainable since the Trial Court
investigated the various facts and evidences in detail.

There stands no merit for admitting the appeal. Hence it is submitted that this
Honorable Court may be pleased to dismiss this appeal.

Argument No. 2:

There are clear evidences which are showing that all the three accused persons
had the common intention to commit murder and this was also confirmed in the
dying declaration of the deceased victim.

Argument No. 3:

As per the dying declaration of the deceased, there was no such act on his part
that amounted to grave and sudden provocation as claimed by the accused.

Argument No. 4:

The Session Court was justified in sentencing the appellants with life
imprisonment for the act committed by them.
 Advanced Arguments or Pleadings

1. That the appeal filed by the appellant challenging the order of the Trial
Court is not maintainable.

The respondent humble submits that the appeal filed by the appellant
challenging the order of the Trial Court is not maintainable u/s 374 (2) of
The Code of Criminal Procedure.

 Section 374 (2) of CRPC read as:

i. Any person convicted on a trial held by a 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.

However the High Court can in a criminal appeal against conviction

dismiss it, if it is of the opinion that there is no sufficient ground for
interference after examining the various grounds urged to challenge
the decision of lower Court.
ii. While the evidence presented at the trial stage, there is sufficient
and conclusive evidence to prove the guilt of the accused beyond
reasonable doubt.
iii. Therefore there is no merit in admitting this appeal. Hence it is
submitted that this Honorable Court may be pleased to dismiss this
appeal.
2. There is clear proof that the accused have common intention of committing
murder of the respondent.
 Section 32 of The Indian Evidence Act states the case in which
statements of relevant facts by person who is dead or cannot be
found, is relevant:
Statements, written or verbal, or relevant facts made by a person
who is dead or who cannot be found or who has become incapable
of giving evidence, or whose attendance cannot be procured without
an amount of delay or expense which, under the circumstances of
the case, appears to the Court unreasonable, are themselves relevant
facts in the following cases:
i. When it relates to cause of death – When the statement is
made by a person as to cause of his death or as to any of the
circumstances of the transaction which resulted in his death, in
cases in which the cause of that person’s death comes in to
question.
Case: Bhupan vs State of Madhya Pradesh AIR 2002 SC 820.
Held: it was held by the Supreme Court that the dying
declaration must be certain and from dying declaration the
identification of the accused must ascertain the cause of death
to base the conviction.
 Section 34 of IPC 1860: Act done by several persons in
furtherance of common intention:
When a criminal act is done by several persons in
furtherance of common intention of all, each if such
person is liable for that act in the same manner as if it
was done by him alone.
Case: Moshya Bhil v/s State of Maharashtra 1984 Cr. LJ
1728 (SC).
Held: It was held that in order to attract section 34 mere
proof of each of participating culprits having same
intention to commit certain offence is not available.
Common intention can be found on spur of moment.
Therefore each of the accused must share intentions of
others.
  Section 300 of IPC 1860: Murder:
Except in the cases hereinafter accepted , culpable
homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or
If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or
If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted
is sufficient in the ordinary course of nature to cause
death or
If the person committing the act knows that it is so
imminently dangerous that it must, in all probabilities,
cause death, or such bodily injuries as is likely to cause
death, and such acts without any excuse for incurring
the risk of causing death or such injury as aforesaid.

Case: Naga khan AIR 1921 LB 4 (Page 466 IPC)

Facts: “A” killed “D” by striking him one blow on the head
with a long and heavy bamboo. The nature of the injury
indicated that very great force was used.
Held: It was held that although the weapon used was not that
would of necessity caused fatal injury, the force used was so
great as to show that the accused intended to cause injury
sufficient in the ordinary course of nature to cause death and
was therefore guilty of murder.
3. That the act resulted in murder of Kamal was an act done in furtherance of
criminal conspiracy with a common object:
 Section 120 A of IPC, 1860 defines Criminal Conspiracy:
When 2 or more persons agree to do , or cause to be
done –
i. An illegal act, or
 ii. An act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement
to commit an offence shall amount to a a criminal
conspiracy unless some act besides the agreement
is done by one or more parties to such agreement
in pursuance thereof.
 Section 10 Indian Evidence Act states: Things said or
done by conspirator in reference to common object –
Where there is reasonable ground to believe that two or
more persons have conspired together to commit an
offence or an actionable wrong, anything said, done, or
written by anyone of such persons in reference to their
common intention, after the time when such intention
was first entertained by anyone of them, is a relevant
fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of
showing that any such person was a party to it.
4. Whether the act of the deceased amounted to grave and sudden
provocation:
The deceased only demanded his money i.e., Rs. 20000/= which he gave to
Sher Singh. Sher Singh started abusing Kamal. Rajender and Sanjay started
beating Kamal. This all has been stated by the deceased in his dying
declaration.
 The reason for admitting dying declaration in evidence:
Case: Shakuntala vs State of Haryana AIR 2007 SC 2709
Held: a dying declaration is admitted in evidence on the principal ‘
Nemo Moritens proesumitur mentiri’ (a man will not meet his maker
with a lie in his mouth). Hence it is proved that there is no such act
done by the deceased that amounted to sudden and grave
provocation.
5. Whether the Session Court was justified in sentencing the appellants with
life imprisonment in connection with the act committed by them:
It is most respectfully submitted to this Honorable Court:
 That the judgment passed by the Session court is appropriate and
conviction of the accused u/s 302 read with section 34 of IPC is
correct and as per the demand of justice.
 PRAYER

Therefore in the light of issues raised, arguments advanced and authorities cited,
it is humbly prayed that the Honorable Court may be pleased to hold adjudge and
declare that:
i. The present appeal is not maintainable.
ii. And upheld the decision of Trial Court.
iii. Any order or any other relief that this honorable Court may deem fir in
the interest of justice, equity and good concise.

All of which is humbly prayed.