DELHI UNIVERSITY FACULTY OF LAW, LAW CENTRE – II

Moot Court, 2018

BEFORE THE HON’BLE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH

CRIMINAL APPEALS NO. 121-123 OF 2018

In the matter of:

Sher Shah ... Appellant 1

Or/and
Gajendra Shah … Appellant 2
Or/and
Suri Shah … Appellant 3
(APPELLANTS)

Versus

STATE OF HARYANA
(RESPONDENT)

APPEAL UNDER SECTION 374(2) OF

THE CODE OF CRIMINAL PROCEDURE, 1973

UPON SUBMISSION TO THE HON’BLE HIGH COURT

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS

Ashutosh Pandey

Team No-9

Sec-F

1
 TABLE OF CONTENT

LIST OF REFERENCES AND CASES 3-5

STATEMENT OF JURISDICTION 6

STATEMENT OF FACTS 7-8

STATEMENT OF ISSUES 9

SUMMARY OF PLEADINGS 10

ARGUMENTS ADVANCED 11- 23

PRAYER 24

2
1
List of REFERENCES

1. List of Statute

- The Indian Penal Code (45 of 1860)

- The Criminal Procedure Code, 1973

- The Indian Evidence Act, 1872

2. List of Books Referred

• Ratanlal & Dhirajlal, the Indian Penal Code, (lexis Nexis Butterworth Wadhwa
Nagpur 32nd Enlarged Edition, 2010)

• PSA Pillai Criminal Law, (lexis Nexis Butterworth Wadhwa Nagpur, 10th edition,
2008)

• K.D.Gaur, Textbook on the Indian Penal Code, (Universal Law Publication Company,
7th Edition, 2013)

• Dr. Hari Singh Gour, Penal Code, (Law Publishers Pvt.Ltd, Vol.1&2)

• Kenny Outlines of Criminal Law. (Cambridge University Press, Cambridge, 19th

edition 1966)

3
1
 TABLE OF CASES

S.NO. CASE NAME CITATION

1 Mahbub Shah v. Emperor (1945) 47 BOMLR
941
2 Suresh and Anr. v. State of U.P (2001) 3 SCC 673
3 Marinal Das v. State of Tripura (2011) 9 SCC 479
4 Nagraja v. State of Karnataka (2008) 17 SCC 277
5 Girija Shankar v. State of U.P (2004) 3 SCC 793
6 Surinder Kumar v. UT, Chandigarh [1989] 2 SSC 217
7 Sukhbir Singh v. State of Haryana (2002) 3 SCC 327
8 Sekar v. State 2002(8) SCC 354
9 Perana v. Emperor 1936 ALL LJ 333
10 Suraj Dev v. The State(Delhi Admn) (Crl)Appeal No.
103 of 2009
11 K.M Nanavati v. State of Maharashtra AIR 1962 SC 605
12 Boya Munigadu v. The Queen (ILR 3 MAD 33)
13 In Re C. Narayan (A.I.R. 1958 A.P.
235)
14 Ayyanar v. State of Tamil Nadu
15 Babu Lal v. State AIR 1960 All 223
16 Suyambukkani v. State of Tamil Nadu (1989) LW (Crl.)
86
17 Sankaral Alias Sankarayee v. State (1989) L.W. (Crl.)
468
18 Virsa Singh v. State of Punjab (1958) SCR 1495
19 Jagrup Singh v. State of Haryana (1981) 3 SCC 616
20 Hem Raj v. State (Delhi Administration) (1990) Supp. SCC
29

4
1
 JOURNALS REFERRED

S. NO. NAME OF THE JOURNALS

1 All India Reporter
2 Supreme Court Cases
3 Indian Law Reporter

DATABASE REFERRED

S. NO. NAME OF DATABASE

1 www.lexisnexis.com
2 www.scconline.com
3 www.indiankanoon.org

54
 STATEMENT OF JURISDICTION

WHEREAS THE PRESENT APPEAL FILED UNDER SECTION 374 (2) OF THE
CRIMINAL PROCEDURE CODE CHALLENGES THE JUDGMENT OF THE
LEARNED PRINCIPAL SESSIONS JUDGE, JHAJJAR IN S.C.NO.165 OF 2008
DATED 17.11.2008.

SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE READS AS

FOLLOWS:

“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.”

6
 STATEMENT OF FACTS

1) Sher Shah(appellant 1), a farmer living with his family consisting of his wife
(Sobti), son Gajendar Shah(appellant 2), daughter Naina and brother Suri
Shah(appellant 3).

2) Karim, a boy living in the same village, was working as a system operator 12km
away from the village in Jhajjar, was in love with Naina, daughter of Sher Shah.
Being a father in order to protect his daughter warned Karim to stay away and
severely admonished and scolded Naina to refrain from meeting Karim.

3) Suri Shah owed a debt of Rs.20, 000 to Karim but because of his helplessness to
pay could not return the said money though he never denied paying off his debt as
he needed some time.

4) On 8th August, 2010, Suri Shah invited Karim to collect the debt. Karim reached
around 8:30 pm at their house when the family finished their dinner.

5) Sher Shah, Suri Shah and Gajendar Shah on hearing whispers from the backyard
went to investigate, albeit unarmed. On seeing Karim and Naina together Sher
Shah lost his temper and started abusing Karim.

6) Gajendar brought lathi from inside of the house as it is easily available at every
household and gave blows on the leg of Karim. Suri Shah grabbed the lathi and
started beating Karim and gave blows on head and chest.

7) Karim was taken to the hospitals by the villagers where he died 3 days later. Post-
mortem report confirmed that Karim suffered injuries on head and fracture of 3
ribs. None of the injuries independently was sufficient to cause death while they
cumulatively were sufficient in the ordinary course of nature to cause death.

7
8) First Information Report was registered under section 307 r/w section 34 Indian
Penal Code 1860, and after the death of Karim charges were altered to section 302
r/w section 34 Indian Penal Code,1860.

9) Session Court convicted Appellant 1, 2 & 3 under section 302 r/w section 34 &
sentenced them to life imprisonment for having committed the murder of Karim.

10) Aggrieved by the judgment of conviction passed by the learned Trial Judge, the
Appellants have preferred the present appeal.

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 STATEMENT OF ISSUES

1) WHETHER APPELLANT 1, 2 & 3 CAN BE PROSECUTED U/S 302 R/W

SECTION 34 OF INDIAN PENAL CODE, 1860?

2) WHETHER THE NATURE OF INJURIES AND WEAPON WAS SUCH AS

TO CAUSE DEATH OF THE PERSON?

3) WHETHER THE ACT OF THE DECEASED AMOUNTED TO GRAVE AND

SUDDEN PROVOCATION?

4) WHETHER THE SESSION COURT WAS JUSTIFIED IN SENTENCING THE

APPELLANTS WITH LIFE IMPRISONMENT IN CONNECTION WITH THE
ACT COMMITTED BY THEM?

9
 SUMMARY OF PLEADINGS

I) THE SESSION COURT WAS NOT JUSTIFIED IN HOLDING THAT

THERE WAS COMMON INTENTION BETWEEN SHER SHAH,
GAJENDAR SHAH AND SURI SHAH TO COMMIT OFFENCE
UNDER SECTION 34 IPC,1860 AND THEREBY CONVICTING
THEM OF THE SAID CHARGE BECAUSE:

a) Sher Shah, Gajendar Shah and Suri Shah did not acquire any
common intention to attract under the scope of Section 34 IPC;
b) The Act of the Appellants was not premeditated and was in the heat
of the moment.

II) THE SESSION COURT WAS NOT JUSTIFIED IN CONVICTING

THE APPELLANTS UNDER SECTION 302 IF THE IPC,1860
BECAUSE:

a) The case does not fall in any of the clauses of Section 300 IPC, 1860
and there was no intention of the Appellants to kill the deceased.
b) Appellants did not use any lethal weapon and no particular injury
was sufficient to cause death and the act was not premeditated
c) The case falls under the Exception 1 of Section 300 IPC, 1860 as the
act of the Appellants was grave and sudden and the death was
caused by mistake or accident.

III) THE LIFE SENTENCE GIVEN BY THE SESSION COURT TO THE

APPELLANTS WAS NOT JUSTIFIED BECAUSE:

a) The Case falls under Section 304 of the Indian Penal Code, 1860
therefore does not attract harsh punishment of life imprisonment.

10
 ARGUMENTS ADVANCED

I) WHETHER APPELLANT 1, 2 & 3 CAN BE PROSECUTED U/S 302

R/W SECTION 34 OF THE INDIAN PENAL CODE, 1860?

It is most respectfully submitted to this Hon’ble Court-

1) That taking into consideration the statement of facts, it cannot be said that
Appellant 1, 2 & 3 had and intention to administer the use of lathi and give blow
on the deceased to finally cause death of the deceased.

2) That such an act in the spur of the moment does not attract heavy punishment &
penalty under relevant section of Indian Penal Code, which are:

Section 302: Punishment for Murder:

Whoever commits murder shall be punished with death, or [imprisonment for
life], and shall also be liable to fine.

Read with

Section 34: Acts 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 of such persons is liable for that act in the same manner as
if it were done by him alone.

3) That there are umpteen number of reasons which could earlier not be brought to
the attention of the Session court which the appellant most respectfully submits
before this Hon’ble Court for proving the non culpability of accused 1,2 & 3 as
per the above mentioned Sections of the Indian Penal Code,1860.

11
 4) That the contention of the respondent till now that there was Common Intention
of Appellant 1,2 & 3 to kill the deceased cannot be taken into consideration as
they all went to the backyard of the house unarmed to investigate on hearing the
whispers coming.

5) In the case of Mahbub Shah v. Emperor 1and it was observed that“…to invoke
the aid of section 34 successfully, it must be shown that the criminal act
complained against was done by one of the accused persons in furtherance of
common intention of all and care must be taken not to confuse same or similar
intention with common intention…”. And this requirement was certainly not
satisfied in the present case as there was no dispute, malice or personal grudges
against the deceased by any of the appellant and requisite intention cannot be
attributed to the Appellants.

6) Moreover in the majority view taken by Sethi, J & Aggarwal, J (as they then
were) in the case of Suresh and Anr. v. State of U.P2 it was held that“…Intention
is to be judged by the act in relation to the surrounding circumstances…” And
such circumstances shows that it all happened in the heat of the moment without
predetermination of mind as A-2 brought one lathi from inside the house which is
a common household item instead of a lethal weapon. Nothing prevented them
from using a knife, which is also a common household item although far more
dangerous.

7) It was observed in the case of Marinal Das v. State of Tripura3 that“…Section 34

requires a pre-arranged plan and presupposes prior concert therefore there must
be prior meeting of minds & it can be developed at the spur of the moment but
there must be pre-arrangement or pre-mediation concept.”This is not in the
present case as all of the appellant lost their temper on seeing Karim and Naina
together. If it would have been pre-arranged or pre-meditated to murder the
deceased they would have armed themselves with sharp lethal weapon at the time

1
(1945) 47 BOMLR 941
2
(2001) 3 SCC 673
3
(2011) 9 SCC 479

12
 of going to the backyard.

8) That the Supreme Court has in Nagraja v. State of Karnataka4held that “A past
enmity by itself, in our opinion, may not be a ground to hold for drawing any
inference of information of common intention amongst the parties…”and in
Girija Shankar v. State of U.P5 it was held that “Section 34 is only a rule of
evidence and does not create a substantive offence” and that“The distinctive
features of the section is the element of participation in action.”

9) That having regard to the background in which occurrence has taken place the
appellant were not actuated by common intention as if there would have been
malice of killing the deceased they would have not called Karim to their house.

10) Thus it not only the prosecution which has gravely erred in invoking Section 34
of the IPC against the appellants, but also the Sessions Courts which has passed
an order of conviction under Section 302 r/w Section 34 of the IPC.

II) WHETHER THE NATURE OF INJURIES AND THE NATURE OF

WEAPON WAS SUCH AS TO CAUSE DEATH OF A PERSON?

It is most respectfully submitted to this Hon’ble Court-

11) That it is pertinent to mention that in the case of Surinder Kumar v. UT,
Chandigarh6 the Supreme Court has held“…that if on a sudden quarrel a person
in the heat of the moment picks up a weapon which is handy & causes injuries out
of which only one prove fatal, he would be entitled to the benefit of the
exception.”It was further held that“the number of wounds caused during the
occurrence in such a situation was not the decisive factor what was important
was that the occurrence had taken place on the account of a sudden and un
predetermined fight & the offender must have acted in a fit of anger.” There was

4
(2008) 17 SCC 277
5
(2004) 3 SCC 793
6
[1989]2 SSC 217

13
 absolutely no intention to kill the deceased on the part of the Appellants.
Admittedly, none of the appellants were carrying a weapon of such lethality
which could show their intent to commit an offence such as the present one.

12) In Sukhbir Singh v. State of Haryana7the Supreme Court held that “..All fatal
injuries resulting in death cannot be termed as cruel or unusual for the purpose
of not availing the benefit of Exception 4 of Section 300 IPC”. After the injuries
were inflicted and the deceased had fallen down, the appellants are not shown to
have inflicted any other injury him. With regard to the facts on record it is clearly
shown that in the heat of passion upon a sudden provocation, appellants with lathi
not being a lethal weapon caused injuries at random and thus did not act in a cruel
or usual manner.

13) That in Sekar v. State8the Supreme Court convicted the accused under Exception
IV to Section 300 IPC instead of Section 302 where the deceased fell on the
ground after the accused had given injuries on his head and left shoulder, accused
again inflicted another blow on his neck.

14) In Perana v. Emperor9 It was observed that “the use of lathi is certainly
dangerous but is not so dangerous that one would suppose that anybody would be
in the ordinary course think that death is a probable cause of use of lathi. Our
experience is that lathis are frequently used and result in nothing more than
injuries which are simple hurts or at the most grievous hurts”. Appellants in the
heat of the moment without knowledge of the graveness of the weapon used lathi
which is present at every household in village and did not use any lethal weapon.

15) When there was only extortion by one of the accused and a wooden log was hit
on the head of the deceased which is a vital part of the body, the case was found
to be under section 304 and not one under section 302 in Suraj Dev v. The State

7
(2002) 3 SCC 327
8
2002(8) SCC 354
9
1936 ALL LJ 333

14
 (Delhi Admn)10 Taking into consideration the aforesaid case it is pertinent to
reiterate that the appellants also used a lathi and not any lethal weapon.

16) In Jagtar Singh v. State of Punjab11, the accused had in the spur of the moment
inflicted a knife blow in the chest of the deceased. The injury proved fatal. The
doctor had opined that the injury was sufficient in the ordinary course of nature to
cause death. The Supreme Court observed that“…the quarrel was of trivial
nature, in these circumstances, it is a permissible inference that the appellant at
least could be imputed with the knowledge that he was likely to cause death and
the court altered conviction from Section 302 to Section 304 Part II of the
IPC…” The facts on record show that none of the injuries by itself was sufficient
to cause death but were only cumulatively sufficient to cause death.

III) WHETHER THE ACT OF THE DECEASED AMOUNTED TO GRAVE

AND SUDDEN PROVOCATION?

It is most respectfully submitted to this Hon’ble Courts-

“Exception 1 to section 300 IPC- When Culpable Homicide is not murder:

Culpable Homicide is not murder if the offender, whilst deprived of the power of
self-control by grave and sudden provocation, causes death of the persons who
gave the provocation or causes the death of any other person by mistake or
accident.

17) That in K.M Nanavati v. State of Maharashtra12 it was laid down by the court
that No abstract standard of reasonableness can be laid down of what amounts to
grave and sudden provocation. What a reasonable man will do in certain
circumstances depends upon the customs, manners, way of life, traditional
values etc.12) Circumstances which led to this ‘Act’ of the 3 Appellants was after
seeing karim and Naina together late at night at backyard of their house in their

10
(CRL.)Appeal No. 103 of 2009
11
(1983) 2 SCC 342
12
AIR 1962 SC 605

15
 small village in Haryana where customs, traditional values cannot be compared to
that of a city. There was no period of cooling down and this ‘Act’ of the
Appellants was in the spur of the moment.

18) It is pertinent to point out that Karim (deceased) used to meet Naina on the
weekends when her father was not at home on the pretext that he had come to
collect the money and on the date of incident also Karim met with Naina in her
backyard. These circumstances tantamount to provocation by the paramour
himself.

19) That the Appellants did not have time to cool down and regain their self control.
In this regard we may refer the pronouncement of judgement rendered by Subba
Rao, J (as he than was) in the celebrated pronouncement of K.M Nanavati v.
State of Maharashtra in which case the court noted that the accused clearly
indicated that he had not only regained his self control, but, on the other hand,
was planning for the future. Between 1.30 p.m. when he left his hours 4.20 p.m.,
when the murder took place, three hours had elapsed, and therefore there was
sufficient time for him to regain his self-control. Based on facts on record it is
clearly indicated that in the present case, the Appellants did not have the requisite
cool down period here as every thing happened in a spur of the moment within 1-
2 minutes.

20) In Boya Munigadu v. The Queen13,the Madras High Court held that“…the State
of the mind of the accused, having regard to the earlier conduct of the deceased,
may be taken into consideration in considering whether the subsequent act would
be sufficient provocation to bring the case within the Exception of section 300
IPC…”

21) Further, In In Re C. Narayan14, it was held that“…the mental state created by an

earlier act may be taken into consideration in ascertaining whether a subsequent

13
(ILR 3 MAD 33)
14
(A.I.R. 1958 A.P. 235)

16
 act was sufficient to make the assailant to lose his self – control…”
22) Under the English Law, the provocation must be grave as well as sudden. But, by
way of judicial thinking, the Indian Criminal Law has gone ahead. (Ref: K.M
Nanavati v. State of Maharashtra AIR 1962 SC 605). In our system, there is the
concept of "sustained provocation". It is concerned with the duration of the
provocation. There may be incidents/occurrences, which are such that they may
not provoke the offender suddenly to make his outburst by his overt act.
However, it may be lingering in his mind for quite some time, torment
continuously and at one point of time erupt, which would lead to loss of self
control, make his mind to go astray, the mind may not be under his
control/command and results in the offender committing the offence. The
sustained provocation/frustration nurtured in the mind of the accused reached the
end of breaking point, under that accused causes the murder of the deceased.

23) In Ayyanar v. State of Tamil Nadu15, it was held that courts in the decisions of
BabuLal v. State16and Suyambukkani v. State of Tamil Nadu17 have added one
more exception, known as ‘sustained provocation’. Therefore, while considering
whether there are materials to indicate that there is a grave & sudden provocation
as contemplated under Exception 1 to Section 300 IPC, sustained provocation, on
account of a series of acts more or less grave spread over a certain period of time,
would undoubtedly stand added to Exception 1 to Section 300 IPC. It is evident
from the bare and apparent facts on record that the conduct of the Appellants was
not predetermined and there was no time to cool down therefore the offence of
murder is not made out as it was truly grave and sudden.

24) That in Sankaral Alias Sankarayee v. State18 it was held that“There are types
of cases, where there has been sustained provocation for a considerable length
of time and there would not have been a real sudden provocation immediately

15

16
AIR 1960 All 223
17
[1989 LW (Crl.) 86]
18
[1989 L.W. (Crl.) 468]

17
 preceding the murder. In such cases, the Courts have given the benefit of
Exception 1 to Section 300, I.P.C. on the ground that the provocation which is
the root cause for the commission of the offence need not arise at the spur of the
moment”.

25) It is humbly put forward that the Session Court has gravely erred in considering
the evidence in totality and in the light of the judicial pronouncement as
aforesaid, has wrongly charged the Appellants for the offence under section 300
IPC.

IV) 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 Hon’ble Court-

26) That taking into consideration of the peculiar facts and circumstances of the
case, it cannot be said that the conviction of the appellant under Section 302
IPC should be upheld.

27) That the act committed does not fall under Sec 300 IPC but it does fall under
Sec 299(c) IPC. Therefore such an act committed without any mens rea or
without the intention to kill does not attract heavy punishment & penalty under
relevant section of Indian Penal Code, which are:

Section 299: Culpable homicide

Whoever causes death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.

Section 304 Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished

18
with [imprisonment for life], or imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine, if the act by which
the death is caused is done with the intention of causing death, or of causing such
bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten
years, or with fine, or with both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause death, or to cause such
bodily injury as is likely to cause death.

28) That there are significant features of the case which are required to be taken into
consideration in awarding the appropriate sentence to the accused:

(i) Admittedly, the incident happened at the spur of the moment.

(ii) It is clear from the evidence on record that the appellants did not use any
lethal weapons to attack Karim.

(iii) The A-3, Suri Shah gave a lathi blows on the head and chest of the
deceased which proved fatal.

(iv) The other accused did not indulge in overt act therefore, except the
appellant, the other co-accused namely Sher Shah (appellant 1), Gajendar Shah
(appellant 2), should have been acquitted by the lower court. However all of
three appellants were convicted by session court.

(v) The incident took place on 8th August, 2010 and the deceased remained
hospitalized and ultimately died after three days of hospitalisation.

(vi) This is also true that there was no previous enmity between the parties.

29) Therefore, it is abundantly clear that there was no mens rea or intention to kill
or that there was prearranged plan or that the incident had taken place in
furtherance of the common intention of the accused persons, when all these
facts and circumstances are taken into consideration in proper perspective, then
it is improper to maintain the conviction of the appellant under Section 302 IPC.

30) The appellant having struck blows on the head and chest of the deceased with
the lathi, can be attributed with the knowledge that it would cause an injury
which was likely to cause death and not with any intention to cause the death of
the deceased. The offence committed by the appellant, therefore amounted to

19
 culpable homicide not amounting to murder, punishable under Section 304 Part
II of the Code.

31) In Virsa Singh v. State of Punjab19 it was held that Culpable homicide would
amount to Murder if both of the following conditions were satisfied:

(a) that the act which causes death is done with the intention of causing a bodily
injury; and
(b) That the injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death.
Thus, it must be proved that there was an intention to inflict that particular bodily
injury which, in the ordinary course of nature, would be sufficient to cause death,
viz. that the injury found to be present was the injury that was intended to be
inflicted.

32) In Jagrup Singh v. State of Haryana20, the accused inflicted blow in the heat
of the moment in sudden fight with blunt side of Gandhala on head of the
deceased which is a vital part of the body causing his death. According to the
doctors this particular injury in the ordinary course of nature was sufficient to
cause death. But the court altered the conviction of accused from Section 302 to
Section 304 Part II I.P.C as according to the court, the intention to cause such
an injury was likely to cause death was not made out.

33) That the contention of the State that the act falls under Section 302 IPC can not
be sustained as, if the act of the appellants falls within either of the Clauses 1,2
and 3 of Section 300, but is covered by any of the 5 Exceptions, it is punishable
under the first part of Section 304. If however, the act falls within Clause (4) of
Section 300, and at the same time covered by any of the five Exceptions to that
Section it will be punishable under the IInd part of Section 304, Indian Penal
Code,1860.

34) In Hem Raj v. State (Delhi Administration)21 the Supreme Court stated
that“…The question is whether the appellant could be said to have caused that

19
(1958) SCR 1495
20
(1981) 3 SCC 616
21
(1990) Supp. SCC 29

20
 particular injury with the intention of causing death of the deceased…” As the
totality of the established facts and circumstances do show that the occurrence
had happened most unexpectedly in a sudden quarrel and without pre-
meditation during the course of which the appellant caused a solitary fatal
injury, he could not be imputed with the intention to cause death of the deceased
or with the intention to cause that particular fatal injury; but he could be
imputed with the knowledge that he was likely to cause an injury which was
likely to cause death. Because in the absence of any positive proof that the
appellant caused the death of the deceased with the intention of causing death or
intentionally inflicted that particular injury which in the ordinary course of
nature was sufficient to cause death, neither Clause I nor Clause III of Section
300 IPC will be attracted.

35) There are some factors which are required to be taken into consideration before
awarding appropriate sentence to the accused. Each case has to be seen from its
special perspective. The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several
days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without premeditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force
with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature
to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;

21
 m) The conduct and behaviour of the accused after the incident. Whether the
accused had taken the injured/the deceased to the hospital immediately to
ensure that he/she gets proper medical treatment?

36) These are some of the factors which can be taken into consideration while
granting an appropriate sentence to the accused. The list of circumstances
enumerated above is only illustrative and not exhaustive. In our respectful
submission, proper and appropriate sentence to the accused is the bounden
obligation and duty of the court. The endeavour of the court must be to ensure
that the accused receives appropriate sentence, in other words, sentence should
be according to the gravity of the offence to meet the ends of justice.

22
 PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES RAISED,

AUTHORITIES CITED AND ARGUMENTS ADVANCED, IT IS PRAYED
THAT THIS HON’BLE COURT MAY GRACIOUSLY PLEASED TO:

1) Acquit Mr. Sher Shah (Appellant-1), Mr. Gajendar (Appellant-2), Mr. Suri Shah
(Appellant-3) for Murder under Section 302 read with Section 34 Indian Penal
Code, 1860.

2) Reduce the sentence of life imprisonment of the Appellants

3) Pass any such order as this Hon’ble Court may deem fit in the interest of justice.

All of which is most humbly and respectfully prayed to set aside the order of the
Session court.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.

Date : ___/____/____
Place : HARYANA
Counsels for the
Petitioner
Ashutosh Pandey

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