BEFORE THE HON’BLE COURT OF SESSIONS

AT HOSHIARPUR

F O R O F F EN C ES C H AR G ED U N D ER S EC TI O N 302, 326 R/W 34

T H E I N DI A N P EN A L C OD E , 1860

IN THE MATTER OF

State of Hoshiarpur ___________

Prosecution

v.

Kishori Lal and Ors. ___________ Defense

CRIMINAL CASE. NO. …./2021

MEMORANDUM ON BEHALF OF THE PROSECUTION

SUBMITTED BY:

ROLL NO.: 131170

CRIMINAL LAW GROUP

X SEMESTER

Upon Submission to the Hon’ble Sessions Judge

 Memorandum On Behalf Of The Prosecution

TABLE OF CONTENTS

LIST OF ABREVIATIONS.............................................................................................................. 3
LIST OF AUTHORITIES................................................................................................................. 4
Cases..........................................................................................................................................4
Statutes Referred........................................................................................................................5
Books Referred...........................................................................................................................5
STATEMENT OF JURISDICTION................................................................................................ 7
STATEMENT OF FACTS................................................................................................................ 8
ISSUES RAISED............................................................................................................................... 9
SUMMARY OF ARGUMENTS................................................................................................... 10
ARGUMENTS ADVANCED........................................................................................................ 12
[1] WHETHER THE THREE ACCUSED BE HELD JOINTLY LIABLE IN ACCORDANCE TO SECTION 34
OF INDIAN PENAL CODE 1860 FOR THE ACT COMMITTED........................................................12
[2] WHETHER THE ACCUSED ARE LIABLE UNDER SECTION 326 OF INDIAN PENAL CODE 1860.
..................................................................................................................................................13
2.1 The exception mentioned in Section 335 does not apply in the instant case.................13
2.2 The ingredients of Section 326 are fulfilled in the instant case.....................................14
[3] WHETHER THE ACCUSED ARE LIABLE FOR MURDER AND PUNISHABLE UNDER SECTION 302
OF INDIAN PENAL CODE 1860..................................................................................................15
3.1 ActusReas and MensRea both were present in the instant case......................................15
3.1.1 Actus Reus...................................................................................................................16
3.1.2 MensRea......................................................................................................................16
3.1.3 THE CHAIN OF EVIDENCE IS COMPLETE TO BRING HOME THE GUILT OF THE ACCUSED
..............................................................................................................................................18
3.2 Punishment under Section 302 should be given to all the three accused.......................18
PRAYER........................................................................................................................................... 20

2
 Memorandum On Behalf Of The Prosecution

LIST OF ABREVIATIONS

ABBREVIATION ACTUAL TERM

AIR All India Reporter

Bom Bombay

Cr. Criminal

Cr. LJ Criminal Law Journal

DLT Delhi Law Times

Mad Madras

MPLJ  Madhya Pradesh Law Journal

Nag. Nagpur

SC Supreme Court

SCC Supreme Court Cases

v. Versus

3
 Memorandum On Behalf Of The Prosecution

LIST OF AUTHORITIES

Cases

 Amarjeet Singh v. State of Punjab, AIR 1970 SC Punjab 279

 Balerian Minji, 1985 Cr LJ 1394 (MP)
 BhagwaniAppaji v. Kedari Kashinath, (1900) ILR 25 Bom 202
 CBI v Kishore Singh, (2011) 6 SCC 369: (2011) 2 SCC (Cr) 970
 Chahat Khan v State of Haryana AIR 1972 SC 2574, (1972) 3 SCC 408.
 Commissioner of Income Tax v. PatranuDass Raja Ram Beri, AIR 1982 PH 1, 4.
 C.S.D. Swami v. The State, AIR 1960 SC 7
 Chander Bahadur Suha v. State of Sikkim, 1978 Cr LJ 942
 Chand Singh v State, 1971 Cri LJ 1 1501
 Chikkarange Gowda v. State AIR 1956 SC 731
 CIT v. PatranuDass Raja Ram Beri, AIR 1982 PH 1
 Dhyaneshwar v. State of Maharashtra, (2007) 10 SCC 445.
 Gurdatta Mal v. State AIR 1965 SC 257
 Gul Mohummed v. King Emperor, AIR 1947 Nag 121
 Gyanendra Kumar v State, 1972 Cr LJ 308 : AIR 1972 SC 502
 Garib Singh v. State of Punjab, (1972) 3 SCC 418
 Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32.
 K.M Nanavati v. State of Maharashtra AIR 1962 SC (605)
 Kaushal Prasad v. State of Madhya Pradesh, 1996 Cr LJ 2268
 Laxman v. State of Maharashtra, AIR 1974 SC 1803
 Madhaven v. State of Kerla, 1966 Ker LT 112
 Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
 Panchu Kumar Sardar v. State of Calcutta, 1984 Cr LJ (NOC) 142 (Cal)
 Pandurang v State of Hyderabad , AIR 1955 SC 216
 Prabhu v State of MP, AIR 2009 SC 745 : (2008) 17 SCC 381.
 PulicherlaNagaraju alias Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC
444

4
 Memorandum On Behalf Of The Prosecution

 P.N. Krishna Lal &Ors. v. Govt. of Kerala &Anr., 1995 Supp (2) SCC 187
 Rambilas Singh AIR 1989 SC 1593
 Rambilas Singh AIR v. State 1989 SC 1593
 Rau BhagwantaHargude v State of Maharashtra AIR 1979 SC 1224, (1979) Cr LJ
1022(SC).
 State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
 State of U.P. v. G.K. Ghosh, AIR 1984 SC 1453
 State of Gujarat v. Acharya D. Pandey, AIR 1971 SC 866.
 Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622.
 State of Himachal Pradesh v. Rajiv Jassi, Criminal Appeal No. 771 of 2005 dated
May 6, 2016
 Siddhartha Vashisht @ Manu Sharma v. State (N.C.T. of Delhi), AIR 2010 SC 2352.
 State of U.P. v. Sukhbasi, AIR 1985 SC 1224
 Tukaram Ganpat Pandare v. State AIR 1974 SC 514
 Upparapalli Tirumala Rao v State of AP, 2004 Cr LJ 4514 (AP).
 Udaipal Singh v. State of Uttar Pradesh, AIR 1972 SC 54.
 Virsa Singh v. State of Punjab, AIR 1958 SC 465.

Statutes Referred

 The Code of Criminal Procedure, 1973 [Act No. 2 of 1974]

 The Indian Evidence Act, 1872 [Act No. 1 of 1872]
 The Indian Penal Code, 1860 [Act No 45 of 1860]

Books Referred

 KD Gaur, Criminal Law and Criminology (Deep & Deep Publications Pvt. Ltd., 2002,
New Delhi)
 R.K. Nelson, Indian Penal Code (9th Edition, Lexis Nexis Butterworths, 2003, New
Delhi)
 R.P.Kathuria, Law of Crimes and Criminology (2nd Edition, Vinod Publications,
2007, Delhi)

5
 Memorandum On Behalf Of The Prosecution

 Ratanlal&Dhirajlal, Law of Crimes (26th Edition, Bharat Law House, 2007, New
Delhi)
 Ratanlal&Dhirajlal, The Indian Penal Code (31st Edition, Wadhwa & Company,
2006, Nagpur)
 Sir John Woodroffe & Syed Amir Ali, Law of Evidence (17th Edition, Butterworths,
2001, New Delhi)
 SP Tyagi, Law of Evidence (2nd Edition, Vinod Publications, 2008, Delhi)
 Woodroofe, Commentaries on Code of Criminal Procedure (2nd Edition, Law
Publishers Pvt. Ltd., 2005, Allahabad)
 Vinod Nijhawan, Better Criminal Reference (2nd Edition, Vinod Publications Pvt.
Ltd., 2008, New Delhi)

6
 Memorandum On Behalf Of The Prosecution

STATEMENT OF JURISDICTION

The Prosecution has invoked the jurisdiction the Hon’ble Court of Session under Section 177
read with Schedule 1 of Code of Criminal Procedure, 1973.

7
 Memorandum On Behalf Of The Prosecution

STATEMENT OF FACTS

1. Vikas and Rekha were residents of Hoshiarpur and were studying at the Local
Government College. Our a period of time both developed a liking for each other.
2. Kishori Law, father of Rekha, who was an agriculturist, when came to know of the
love affair of his daughter Rekha with Vikas, he warned Rekha not to meet Vikas as
he belonged to a lower caste community.
3. On 7/2/2021, Kishori Lal along with his two sons Bimal and Kamal went to their
fields. Rekha was alone in the house. Meanwhile, Vikas, came to the house of Rekha,
knowing that she was alone.
4. At about 1:00 P.M., when Kamal came back to the house, he saw his sister Rekha in a
compromising position with Vikas, both Rekha and Vikas were shocked to see
Kamal.
5. Kamal immediately locked Vikas and Rekha in the Room and left for fields which
were situated at a distance of 25 Kms. Kamal at about 4:00 P.M. narrated the incident
to Bimal and Kishori Lal.
6. Kishori Lal, Bimal and Kamal, all armed with swords reached the house at about 7:00
P.M. Kishori Lal attacked Vikas with his sword. Vikas suffered 7 Grievous injuries on
his head and he died on the spot. Kamal and Bimal, meanwhile attacked Rekha and
caused grievous injuries on the head, left forearm and left shoulder of Rekha.
7. Rekha started raising a hue and cry. As a result, people of the locality gathered and
police was called. All the accused were arrested. An F.I.R. was registered against
Kishori Lal, Bimal and Kamal under section 302/326/34 I.P.C.
8. During investigation, statement of Rekha was recorded under section 164 Cr.PC.
where in she admitted that, she was found in a compromising position with Vikas,
however she told that she did it because she liked Vikas and wanted to marry him.

8
 Memorandum On Behalf Of The Prosecution

ISSUES RAISED

[1] WHETHER THE THREE ACCUSED BE HELD JOINTLY LIABLE IN ACCORDANCE TO

SECTION 34 OF INDIAN PENAL CODE 1860 FOR THE ACT COMMITTED.

[2] WHETHER THE ACCUSED ARE LIABLE UNDER SECTION 326 OF INDIAN PENAL CODE
1860.

[3] WHETHER THE ACCUSED ARE LIABLE FOR MURDER AND PUNISHABLE UNDER SECTION
302 OF INDIAN PENAL CODE 1860.

9
 Memorandum On Behalf Of The Prosecution

SUMMARY OF ARGUMENTS

[1] WHETHER THE THREE ACCUSED BE HELD JOINTLY LIABLE IN ACCORDANCE TO

SECTION 34 OF INDIAN PENAL CODE 1860 FOR THE ACT COMMITTED.

It is humbly contended that the Hon’ble Sessions Court may hold all the three accused
i.e.Kishori Lal, Kamal and Bimal, as guilty of murder of Vikas and grievously hurting Rekha
under Section 302 and 326 respectively, read with Section 34 of IPC.

All the three accused were acting with a common intention in mind and participated actively
in the act. Therefore all the three accused must be held jointly liable for the offence
committed.

[2] WHETHER THE ACCUSED ARE LIABLE UNDER SECTION 326 OF INDIAN PENAL CODE
1860.

It is humbly submitted before the Hon’ble Court that the accused persons are liable under
Section 326 of Indian Penal Code, 1860.

The section criminalises the use of a dangerous weapon for causing grievous hurt to any
person. In the instant case Rekha was brutally assaulted by her brothers and father with
swords and she suffered many grievous injuries. Therefore the accused must be held liable
for the act under section 326.

Morover, the defence of grave and sudden provocation will not be applicable in the instant
case. It is submitted that in the present case, the provocation was not sudden in nature. The
fact that the time span between the provocating incident and the act of attacking the deceased
of 6 hours, which is ample amount to cool down the anger of the accused.

[3] WHETHER THE ACCUSED ARE LIABLE FOR MURDER AND PUNISHABLE UNDER SECTION
302 OF INDIAN PENAL CODE 1860.

It is humbly contended in front of the Hon’ble Court that Kishori Lal, Bimal and Kamal, are
guilty of murder and liable for conviction under Sec.302 r/w Sec.34 IPC. It is humbly
contended that the Appellant in the present matter had both the Actus Reus and the Mens Rea
present for committing the crime.

10
 Memorandum On Behalf Of The Prosecution

In the instant case, the Actus Reus of the accused can be proved by circumstantial evidence
on record. In the instant case, Kishori Lal, Bimal and Kamal, all attacked Vikas with his
swords. Vikas suffered 7 Grievous injuries on his head and he died on the spot.

Morover, Mens Rea, can be proved by the notion that when injuries are inflicted on vital parts
of the body with sharp edged instruments then the intention to kill can be attributed to the
offender. In the instant case the intention of the accused were clear. The fact that Vikas was
hit on the Head by a sword, seven times, the intention of the accused is prima facie visible.

11
 Memorandum On Behalf Of The Prosecution

ARGUMENTS ADVANCED

[1] W HETHER THE THREE ACCUSED BE HELD JOINTLY LIABLE IN ACCORDANCE

TO SECTION 34 OF I NDIAN P ENAL C ODE 1860 FOR THE ACT COMMITTED .

1. It is humbly contended that the Hon’ble Sessions Court may hold all the three accused
i.e.Kishori Lal, Kamal and Bimal, as guilty of murder of Vikas and grievously hurting
Rekha under Section 302 and 326 respectively, read with Section 34 of IPC. Section 302
read with Section 34, IPC envisages commission of murder by two or more people in
furtherance of a common intention.
2. Section 34 of Indian Penal Code contemplates the doing of an act by several persons in
furtherance of common intention. The constructive liability under this section would
arise only if two conditions are fulfilled:

a) There must be common intention to commit the crime;and

b) There must be participation by all the persons in doing such act in
furtherance of that intention. If these two ingredients are established all the
accused would be liable for the said offence.1

3. The leading feature of Sec 34 is the element of participation in action. 2 It is the essence of
this section that the person must be physically present at the actual commission of the
crime. Criminal sharing, overt or covert, by active presence or by distant direction,
making out a certain measure of jointness in the commission of the act is the essence of
this section. 3
4. In order to convict persons vicariously under Sec 34 it is not necessary to prove that
each and every one of the accused had indulged in overt acts. Even so, there must be
material to show that the overt act or acts of one or more of the accused was or were
done in furtherance of the common intention of the accused. 4 A person may be
“constructively liable” for acts not committed by him by reason of Sec 34.
5. In the instant case all the three accused committed the act with common intention of
killing Vikas, as evident by the use of dangerous weapons like swords and participated

1
Gurdatta Mal v. State AIR 1965 SC 257
2
Chikkarange Gowda v. State AIR 1956 SC 731
3
Tukaram Ganpat Pandare v. State AIR 1974 SC 514
4
Rambilas Singh AIR v. State 1989 SC 1593

12
 Memorandum On Behalf Of The Prosecution

equally to the commission of the act. The fact that Kamal first locked Vikas and Rekha
in the room and then went on to call his brother Bimal and father Kishori Lal, all the
three then travelled with swords to the room where Vikas and Rekha were locked and
then attacked both of them, prima facie points towards participation of all the three in
the act.

[2] W HETHER THE ACCUSED ARE LIABLE UNDER SECTION 326 OF I NDIAN
P ENAL C ODE 1860.

6. Section 326 of Indian penal Codestates that, “Whoever, except in the case provided for by
section 335, voluntarily causes grievous hurt by means of any instrument for shooting,
stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to
cause death, or by means of fire or any heated substance, or by means of any poison or
any corrosive substance, or by means of any explosive substance, or by means of any
substance which it is deleterious to the human body to inhale, to swallow, or to receive
into the blood, or by means of any animal, shall be punished with 1[imprisonment for
life], or with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine”.5

2.1 The exception mentioned in Section 335 does not apply in the instant case.

7. The Counsel most humbly submits that the language of the aforementioned section states
that the defence of provocation can only be given to the accused if it was “sudden”.
8. Unless there is sudden and grave provocation, section 335 will not be attracted. 6The Apex
Court in the landmark case states if sufficient period of time has elapsed after the
provocation then the accused cannot take the plea that the death caused due to sudden
anger or provocation.7
9. The Supreme Court has laid down, in the following words, the test
of grave and sudden provocation:- "the test of "grave and sudden" provocation is
whether reasonable man, belonging to the same class of society as the accused, placed in
the situation in which the accused was placed would be so provoked as to lose his self-
control."8

5
Section 326 IPC
6
CBI v Kishore Singh, (2011) 6 SCC 369 : (2011) 2 SCC (Cr) 970 : AIR 2011 SC (Supp) 584; Upparapalli
Tirumala Rao v State of AP, 2004 Cr LJ 4514 (AP).
7
K.M Nanavati v. State of Maharashtra AIR 1962 SC (605)
8
Ibid

13
 Memorandum On Behalf Of The Prosecution

10. The fatal blow should be clearly treated to be influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time or otherwise
giving room and scope for premeditation and calculation. The Supreme Court stand has
been reiterated in a number of cases decided by the various High Courts. 9 Where there is
sufficient time for cooling down, there would be no sudden provocation and the act of the
accused would be a deliberate one. Thus, where the accused after receiving the
provocation in a school committee meeting went to his house, brought a gun and
thereafter shot chasing fleeing men, his action did not fall within this exception but was
an act of murder. 10
11. It is submitted that in the present case, the provocation was not sudden in nature. The fact
that Kamal saw his sister Rekha in a compromising position with Vikas at 1:00 P.M,
locked them both in the room, travelled 25 kms, narrated the incident to his father and
brother, Kishori Lal and Bimal respectively, after that all the three travelled for 25 Kms
with swords and then attacked Rekha and Vikas on 7:00 P.M. This makes the time span
between the provocating incident and the act of attacking the deceased of 6 hours, which
is ample amount to cool down the anger of the accused.

2.2 The ingredients of Section 326 are fulfilled in the instant case.

12. The essential ingredients to attract section 326 are:

 voluntarily causing a hurt;

 hurt caused must be a grievous hurt; and
 the grievous hurt must have been caused by dangerous weapons or means.11

13. The counsel most humbly pleads that in the instant case that all the three ingredients were
fulfilled.
14. Firstly, it is evident that the deceased and Rekha were attacked by Kishori Lal, Kamal and
Bimal. The act was voluntary and raises no question about the first ingredient.
15. Secondly, the injury made by the accused resulted into on the spot death of the deceased.
As mentioned in the facts of the case that Vikas was subjected to seven grievous injuries

9
Madhaven v. State of Kerla, 1966 Ker LT 112; Amarjeet Singh v. State of Punjab, AIR 1970 SC Punjab 279;
Chand Singh v State, 1971 Cri LJ 1 1501;lltmaram, (1967) Cri LJ 1697
10
Gyanendra Kumar v State, 1972 Cr LJ 308 : AIR 1972 SC 502 ; see also Panchu Kumar Sardar v. State of
Calcutta, 1984 Cr LJ (NOC) 142 (Cal); Balerian Minji, 1985 Cr LJ 1394 (MP)
11
Prabhu v State of MP, AIR 2009 SC 745 : (2008) 17 SCC 381.

14
 Memorandum On Behalf Of The Prosecution

on his head which resulted to his death. Moreover, Rekha was also attacked on the head
and forearm which also amounts to grievous hurt.
16. Clause (8) of Section 320 IPC states that the following act will constitute grievous “Any
hurt which endangers life or which causes the sufferer to be during the space of twenty
days in severe bodily pain, or unable to follow his ordinary pursuits”. In Pandurang v
State of Hyderabad12, the Supreme Court held that giving a blow on the head with an axe,
is an act which is likely to endanger life and will be covered under cl (8) of s 320.
17. Thirdly, the weapon used in the instant case was sword, which is undoubtedly a
dangerous weapon.
18. Therefore, the counsel most humbly submits that the accused shall be held liable for
Voluntarily Causing Grievous Hurt by Dangerous Weapons or Means under Section 326
of Indian Penal Code 1860.

[3] W HETHER THE ACCUSED ARE LIABLE FOR M URDER AND PUNISHABLE
UNDER SECTION 302 OF I NDIAN P ENAL C ODE 1860.

19. Section 300 of Indian Penal Code contemplates that a person is guilty of murder if he
intentionally causes the death of a person or causes such bodily injury as he knows, is
likely to cause death of that person or causes such bodily injury, which in the ordinary
course of nature results into death or commits an act so dangerous that it must, in all
probability cause death of thatperson.
20. In plethora of judgements, the Court was of the view that when it is clear that the act by
which the death is caused is so imminently dangerous that the accused must be presumed
to have known that it would, in all probability, cause death or such bodily injury as is
likely to cause death, then unless he can meet this presumption his offence will be
culpable homicide, and it would be murder unless he can bring it under one of the
Exceptions.In the present case the attack was immensely dangerous which is likely to
cause Vikas’s Death

3.1 ActusReas and MensRea both were present in the instant case

21. The "Burden of Proof” lies on the prosecution to prove the guilt of the accused beyond
reasonable doubt. The Respondent-Prosecution contends that Actus Reus and MensRea
had been proven successfully, thus The Accused are guilty of murder of Vikas

12
AIR 1955 SC 216

15
 Memorandum On Behalf Of The Prosecution

3.1.1Actus Reus

22. Actus Reus is any wrongful act13. Thus, in a case of murder, Actus Reus would be the
physical conduct of the accused that causes death of the victim. In the instant case, it is
contended that the deceased was assaulted by the accused.
23. It is humbly submitted that actus reus is the conduct that constitutes a particular crime. 14
In a case of murder, actus reus would be the physical conduct of the accused that causes
death of the victim.15
24. It is a well settled principle that where the case is mainly based on circumstantial
evidence, the court must satisfy itself that various circumstances in the chain of evidence
should be established clearly and that the completed chain must be such as to rule out a
reasonable likelihood of the innocence of the accused.16
25. In the instant case, Kishori Lal, Bimal and Kamal, all attacked Vikas with his swords.
Vikas suffered 7 Grievous injuries on his head and he died on the spot. According to the
Apex Court, When an accused hit the deceased on a vital part of the body, the chest, with
the blade of a sword, two feet in length with such force as to impair the liver and the
aorta, it was held the offence was plainly one of murder.17
26. The fact that the accused were in the company of the victim in the same room brings
home the guilt of the accused and it was upon them to explain the cause of the injuries
found on the person of deceased. Failure to explain that why the deceased was in an
unconscious condition coupled with other circumstantial evidence is a grave
circumstance18 which militates against accused persons vide § 106 of the IEA.19

3.1.2MensRea

27. Mens Rea is considered as guilty intention,20 which is proved or inferred from the acts of

13
Rambilas Singh AIR 1989 SC 1593
14
Gul Mohummed v. King Emperor, AIR 1947 Nag 121; See also, Chander Bahadur Suha v. State of Sikkim,
1978 Cr LJ 942
15
AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES, ϐ 2.01 (Philadelphia: American Law
Institute, 1985)
16
Mohan Lal v. State of Uttar Pradesh AIR 1974 SC 1144
17
Rau BhagwantaHargude v State of Maharashtra AIR 1979 SC 1224, (1979) Cr LJ 1022(SC).
18
Dhyaneshwar v. State of Maharashtra, (2007) 10 SCC 445.
19
State of Himachal Pradesh v. Rajiv Jassi, Criminal Appeal No. 771 of 2005 dated May 6, 2016; See also,
C.S.D. Swami v. The State, AIR 1960 SC 7; P.N. Krishna Lal &Ors. v. Govt. of Kerala &Anr., 1995 Supp (2)
SCC 187; Siddhartha Vashisht @ Manu Sharma v. State (N.C.T. of Delhi), AIR 2010 SC 2352.
20
Commissioner of Income Tax v. PatranuDass Raja Ram Beri, AIR 1982 PH 1, 4

16
 Memorandum On Behalf Of The Prosecution

the accused.21 It is submitted that the intention to kill had been established in light of
clear-cut motive of the accused.It is the volition, which is the motive forcebehind the
criminal act77 and is an essential ingredient of criminal liability. 22 It means some
blameworthy mental condition, whether constituted by knowledge or intention or
otherwise.23
28. It will be also useful here to refer to the judgment of the Apex Court24, wherein the Court
has observed that: The intention to cause death can be gathered generally from a
combination of a few or several of the following, among other, circumstances:

a) Nature of the weaponused;

b) Whether the weapon was carried by the accused or was picked up from
thespot;
c) Whether the blow is aimed at a vital part of thebody;
d) The amount of force employed in causinginjury;
e) Whether the act was in the course of sudden quarrel or sudden fight or
free for all fight;
f) Whether the incident occurs by chance or whether there was any pre-
meditation;
g) Whether there was any prior enmity or whether the deceased was
astranger;
h) Whether there was any grave and sudden provocation, and if so, the cause
for such provocation;
i) Whether it was in the heat ofpassion;
j) Whether the person inflicting the injury has taken undue advantage or has
acted in a cruel and unusual manner;
k) Whether the accused dealt a single blow or severalblows.

29. It is also submitted that the intention to kill can be inferred from the murder and nature of
the injuries caused to the victim.25 The fact that there were7 deadly injurieson the
deceased’s body establishes the fact that he was ‘done to death’. The circumstantial

21
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
22
Id
23
State of Gujarat v. Acharya D. Pandey, AIR 1971 SC 866.
24
PulicherlaNagaraju alias Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC 444
25
Laxman v. State of Maharashtra, AIR 1974 SC 1803

17
 Memorandum On Behalf Of The Prosecution

evidence drawn out, clearly establishes the opportunity, the accused had, to commit the
offence.26
30. When injuries are inflicted on vital parts of the body with sharp edged instruments then
the intention to kill can be attributed to the offender. 27 In the instant case the intention of
the accused were clear. The fact that Vikas was hit on the Head by a sword, seven times,
the intention of the accused is prima facie visible.
31. It is humbly submitted before this Hon'ble Bench that, the expectation that the desired
motions will lead to certain consequences is the intention. It connotes a conscious
exercise of the mental faculties of a person to do a particular act with a view to
accompanying or satisfying a particular purpose.28 An intention to kill a person brings the
matter so clearly within the general principles of mens rea as to cause no difficulty. 29
Such intention30 is proved or inferred from the acts of the accused as a man is presumed to
intend the natural consequences of his own act. In the instant matter, the intention of the
Appellant can be gathered from the circumstantial evidence available on record.

3.1.3 THE CHAIN OF EVIDENCE IS COMPLETE TO BRING HOME THE GUILT OF THE
ACCUSED

32. Relying upon the decision of the Apex Court in Udaipal Singh v. State of Uttar Pradesh31
where it was held that “In cases of circumstantial evidence, if it is shown that the accused
having a strong motive had the opportunity of committing the crime 32 and the established
circumstances on the record negating the possibility of anyone else being the culprit, then
the chain of evidence can be considered to be so complete so as to show that within all
possible human probability, the crime must have been committed by the accused”, the
accused must under these circumstances, safely be held guilty.
33. Furthermore, it is noteworthy that when a circumstantial evidence is consistent with the
guilt of the accused and inconsistent with his innocence, even then there should be no
difficulty in upholding the prosecution case.33

3.2 Punishment under Section 302 should be given to all the three accused.
26
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622.
27
Chahat Khan v State of Haryana AIR 1972 SC 2574, (1972) 3 SCC 408.
28
BhagwaniAppaji v. Kedari Kashinath, (1900) ILR 25 Bom 202; Jai Prakash v. State (Delhi Administration),
(1991) 2 SCC 32.
29
Virsa Singh v. State of Punjab, AIR 1958 SC 465.
30
Commissioner of Income Tax v. PatranuDass Raja Ram Beri, AIR 1982 PH 1, 4.
31
AIR 1972 SC 54.
32
Kaushal Prasad v. State of Madhya Pradesh, 1996 Cr LJ 2268
33
State of U.P. v. G.K. Ghosh, AIR 1984 SC 1453; See also, State of U.P. v. Sukhbasi, AIR 1985 SC 1224

18
 Memorandum On Behalf Of The Prosecution

34. Section 302 in The Indian Penal Code, 1860 reads:

“Punishment for murder: - Whoever commits murder shall be punished with death,
or 1[imprisonment for life], and shall also be liable to fine.”34

35. Section 34 in The Indian Penal Code, 1860 reads:

“ Acts done by several persons in furtherance of common intention: - 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 himalone.”35

36. It is well established by the Hon’ble Supreme Court, In case of S. 34, it is well
established that a common intention presupposes prior concert. It requires a prearranged
plan because before a man can be vicariously convicted for the criminal act of another,
the act must have been done in furtherance of the common intention of all of them.36
37. Therefore S. 34, IPC, would apply even if no charge is framed under that section
provided of course from the evidence it becomes clear that there was pre-arranged plan
to achieve the commonly intended object.37
38. In the present case Kamal locked Vikas and Rekha and goes back to field to call other
accused which suggest their prior concert to kill Vikas.
39. In the Instant case, the counsel has already contended and proved that all the three
accused were working towards a common intention and have committed offences
mentioned under Section 326 and 300 of IPC. Therefore, it is humbly submitted that the
court shall treat all the three accused as co accused and hold them liable for grievously
hurting Rekha with dangerous weapon and Murder of Vikas.

34
Section 302, Indian Penal Code 1860
35
Section 34, Indian Penal Code 1860
36
Pandurang v. State of Hyderabad, AIR 1955 SC 216
37
Garib Singh v. State of Punjab, (1972) 3 SCC 418

19
 Memorandum On Behalf Of The Prosecution

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
may this Hon’ble Court be pleased to adjudicate:

1. That all the three accused are guilty of offence of Murder of Vikas and shall be
punished under section 302 of Indian Penal Code 1860.
2. That all the three accused are guilty of offence under section 326 of Indian Penal
Code 1860
3. That the prosecution demands a punishment of life imprisonment for all the three
accused.

AND/OR

Pass any other order that it deems fit in the interest of Justice and Good Conscience.
And for this act of kindness, the Prosecution as in duty bound, shall humbly pray.

Sd/-

COUNSEL FOR THE PROSECUTION

20