Appelant IPC MEMORIAL 2018 IIIIIIIIIII PDF

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MEMORANDUM ON BEAHALF OF APPELANTSLP NO..... 2018IN THE MATTER OF:STATE OF TAXILA ...../PETITIONERV.VIR BAHADUR .....APPEAL BY SPECIAL LEAVE PETITIONUNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950MEMORANDUM ON BEHALH OF THE APPELLANTIN THE JUDICATURE OF HON’BLE SUPREME COURT OF INDIATEAM CODE- ...

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TEAM CODE- 04 IN THE JUDICATURE OF HON’BLE SUPREME COURT OF INDIA

SLP NO......OF 2018

IN THE MATTER OF:

STATE OF TAXILA

......APPELLANT/ PETITIONER

V. VIR BAHADUR

......RESPONDENT

APPEAL BY SPECIAL LEAVE PETITION

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950

MEMORANDUM ON BEHALH OF THE APPELLANT

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TABLE OF CONTENTS S NO.

PARTICULARS

PAGE NO.

1.

LIST OF ABBREVIATION

2

2.

INDEX OF AUTHORITIES

3-8

3.

STATEMENT OF JURISDICTION

9

4.

STATEMENT OF FACTS

10-12

5.

STATEMENT OF ISSUES

13

6.

SUMMARY OF ARGUMENTS

14

7.

ARGUMENT ADVANCED

15-23

1. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION OR NOT? •

That the offence committed was heinous offence.

•

Principle of reasonable foresight exists.

•

There are major discrepancies in the defence version.

•

Credibility

of

PW

7

(Dushyant Singh)

is

questionable. •

That PW 2 (Jitesh) & PW 3(Jishnu) are credible witnesses.

2. WHETHER

THE

AGAINST

CHARGES

VIR

LEVELLED

BAHADUR

24-28

ARE

MAINTAINABLE OR NOT? •

Actus Reus of murder is proven.

•

Arguendo, absence of motive is irrelevant.

•

Good Faith is not established.

•

Accused cannot avail the right of Private Defence.

• 8.

Free from strong hold of superstition.

PRAYER

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LIST OF ABBREVIATIONS

S.NO.

ABBREVIATION

FULL FORM

1.

AIR

All India Reporter

2.

CrPC

Criminal Procedure Law

3.

IPC

Indian Penal Code

4.

Sec.

Section

5.

V.

Versus

6.

SC

Supreme Court

7.

COS

Court Of Session

8.

Hon’ble

Honourable

9.

No.

Number

10.

HC

High Court

11.

COI

Constitution Of India

12.

U/A

Under Article

13.

U/S

Under Section

14.

&

And

15.

P.W

Petitioner Witness

16.

Ed.

Edition

17.

St

State

18.

SLP

Special Leave Petition

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INDEX OF AUTHORITIES

BOOKS REFERRED:

S.NO.

BOOK NAME

BOOKS ON IPC:1. JUSTICE V.N.KHARE, KD GAUR INDIAN PENAL CODE (5th ed. Universal Law Publishing Co. Pvt. Ltd., New Delhi 2014) 2. SK SARVARIA, R.A.NELSON INDIAN PENAL CODE (10th ed. Lexis Nexis Butterworth’s Wadhwa, Nagpur 2008) 3. SK SARVARIA, R.A.NELSON INDIAN PENAL CODE (9th ed. Lexis Nexis Butterworth’s Wadhwa, Gurgaon 2002) 4. M.P. TANDON, THE INDIAN PENAL CODE (23rd ed. Allahabad Law Agency, Faridabad 2005) 5. RAM JETHMALANI & D.S. CHOPRA, THE INDIAN PENAL CODE (IST ed. Thomson Reuters, Legal, New Delhi 2014) 6. DR. K.I. VIBHUTE, P.S.A. PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis, Gurgaon 2015) 7. DR. K.I. VIBHUTE, P.S.A. PILLAI’S CRIMINAL LAW (10th ed. Lexis Nexis, Nagpur 2009) 8. MAHESH PRASAD TANDON & RAJESH TANDON, INDIAN PENAL CODE (21ST ed. Allahabad Law Agency, Faridabad 2003) 9. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (32nd ed. Lexis Nexis Butterworth’s wadhwa, Nagpur 2010) BOOKS ON CrPC:1. SIR JOHN WOODROFF, CODE OF CRIMINAL PROCEDURE (3rd ed. Law Publishers Pvt. Ltd. Allahabad 2009)

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2. SUDIPTO SARKAR & VR MANOHAR, CODE OF CRIMINAL PROCEDURE (9th ed. VOL.1 Lexis Nexis Butterworth’s Wadhwa, Nagpur 2009) 3. SEN GUPTA, CODE OF CRIMINAL PROCEDURE (IST ed. Vol. 1, Kamal Law House 2010) 4. K.K. IYENGAR’S, COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE, 1973 (2nd ed. Delhi Law House, 2011) 5. BATUK LAL’S, COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE, 1973 (6TH ed. Vol. 1, 2016) CRIMINNOLOGY:1. J.W. CECIL TURNER, RUSSELL ON CRIME (12th ed. Vol. 1 Universal Law Publishing Co. Pvt. Ltd. 2001) 2. JAMES A. INCIARDI, CRIMINAL JUSTICE UNIVERSITY OF DELWARE (2nd ed. Harcourt Brace Jovanovich, publishers)

STATUTES REFERRED:

S.NO.

NAME OF THE STATUES:

1.

Indian penal code, 1860

2.

Constitution of India, 1950

3.

Code of criminal procedure, 1973

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WEBSITE REFERRED:

S.NO.

NAME OF THE WEBSITE

1.

www.manupatra.com

2.

www.scconline.com

3.

www.indiankanoon.org

4.

www.westlawindia.com

DICTIONARY REFERRED:

S.NO.

NAMES

1.

Black’s law dictionary, (8th edition, 2004).

2.

Oxford dictionary of law, (8th edition, 2011).

3.

Essential law dictionary, (IST edition, 2008).

4.

Oxford English dictionary (11th edition, 2008).

REPORT REFERRED: REPORT OF ROYAL COMMISSION OF 1834

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WEBLINKS REFERRED:

S.NO.

NAME OF WEBLINK

1. House of legal cases: Criminal cases (February 13, 2018) available at: http://legalcasehouse.blogspot.in/2016/02/state-of-orissa-vs-ram-bahadurthapa.html 2. Special Leave Petition – What, How & When (January 28, 2018) available at: https://blog.ipleaders.in/special-leave-petition/ 3. Anti-Superstition Legislation (February 3, 2018) available at: http://antisuperstition.org/anti-superstition-legisltion/

JOURNAL REFERRED:

S, NO. 1.

NAME OF THE JOURNAL:

Shriya gauba, previous acquittal, criminal law journal, march, 2017, 11.

LEXICON REFERRED:

AIYAR. P RAMANANTHA, THE LAW LEXICON 2nd ed., 2006

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CASES REFERRED:

S.NO.

NAME OF CASE

page no.

1. Anandrao Balkrishna Rangnekar v. Emperor, AIR 1955 Bom

26

2. Arumugham v. St of Tamil Nadu, (1989) II Crimes 597(Madras)

20

3. Bhawo Jiwaji v. Julji Dayal, 12 ILR Bom. 377

26

4. Daulat Shinan Dar v. P. Karunabai, 179 LW 115

20

5. Deiwasigamani v. MS Kamsudeen Rawther, (1977) Madras LJ 86

15

6. Fatheh Singh v. State, 1995 CrLJ 88 (All)

22

7. Harbajan Singh v. State of Punjab, AIR 1966 SC 97

26

8. Inder Singh v. State of Pepsu, AIR 1955 SC 439

19

9. Judagi Mallah, (1929)8 Patna 911

20

10. Kapur Singh v. State of Pepsu, AIR 1956 SC 654

19

11. Mahommad Gul v. Hazi Fazi Karim, AIR 1929 Cal 346

26

12. Mathai v. St of Kerala, (2005) CrLJ 898 (SC)

17

13. Mithu Khan v. State of Rajasthan, AIR 1969 Raj 121

25

14. Mulak Raj v. Satish Kumar, AIR 1992 SC 1175

24

15. Munesh v. State of U.P, 2004 CrLJ 1529

22

16. Ng Mung, (1907) 13 Barma Lr 330

20

17. Pagla Baba v. State, AIR 1957 Ori 130

25

18. Po Mye v. King, 1940, Ranj LR 109

26

19. R v. Coderu, (1916)12 Cr App R 21

28

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20. Raj Daler v. State, 2003 CrLJ Noc 228

25

21. Ram Swaroop v. State of Rajasthan, AIR 2004 SC 2943

22

22. Re SK Sundaram, (2001) ICCR 45 (SC)

25

23. Santosh v. State of MP, AIR 1975 SC 654

19

24. State of Bihar v. Shiv Parsad Lal Seth, AIR 1960 Patna 326

25

25. State of Haryana v. Inder Singh & Ors. (2002)9 SCC 537

23

26. State of Kerala v. Mani Alias Chandan, 1992, CrLJ 1682(Ker)

17

27. State of MP v. Ram Parsad, AIR 1968 SC 881

19

28. State of Orissa v. Ram Bahadur Thappa, AIR 1960 Orissa 161

27

29. State of Punjab v. Sucha Singh, AIR 2003 SC 1471

24

30. Thamman Kumar v. State of Union Territory Chandigarh (2003)6SCC 380

23

31. Thangaiva v. State of Tamil Nadu, (2005)9 SCC 650

19

32. Virsa Singh v. State of Punjab, AIR 1958 SC 465

22

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STATEMENT OF JURISDICTION

The Appellant/Petitioner approaches the honourable Supreme Court of India under Article 1361 of the Indian Constitution, 1950 which deals with the special leave to appeal by the Supreme Court.

1

Art 136 –Special Leave to appeal by the Supreme Court (1) Notwithstanding anything in this chapter, the SC may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Noting in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the armed forces.

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STATEMENT OF FACTS

A) --------------------------------BACKDROP OF THE CASE-----------------------------1. In village Bahadurgarh Virganj district, an abandoned aerodrome where large quantity of valuable aero scrap is collected and is surrounded by tribal having strong belief in ghosts as this area is called to be haunted with such notoriety and infested with ghosts. 2. Defence department kept it in charge of two chaukidars as Jishnu & Jitendar to prevent pilferage by unauthorised persons. 3. One Dushyant Singh came there with servant Vir Bahadur for purchasing aero scrap. They stayed in the house of Ravi Krishan, who is running a tea stall. 4. When Dushyant Singh with Vir Bahadur were there, one Chand Mahi from village Rajgarh, went to tea stall of Ravi Krishan in Bahadurgarh at night around 8:30 pm and took shelter there for night as was afraid of proceedings alone to his village Rajgarh for fear of the ghosts. But Dushyant Singh & his servant were anxious to see ghosts. Hence at midnight they persuaded Ravi Krishan to accompany them to see ghosts. Dushyant Singh & his servant agreed to travel & offered to drop him back to his village. 5. While passing through aerodrome they noticed a flickering light at distance of about 500m from pathway. They also found some apparitions moving around flickering light. They thought that some ghosts were dancing around light and they all ran towards that place.

B) ------------------------------ASSAILING BY VIR BAHADUR--------------------------1. Vir Bahadur reached first with his ‘khurkhri’ and began to attack ghosts indiscriminately. Ravi Krishan arrived there sometimes later, but Vir Bahadur did not notice him and one of his khurkhri blows caused severe injury to Ravi Krishan who screamed aloud saying that Vir Bahadur had injured him. 2. in consequences of indiscriminate attack of his ‘khurkhri’ MEMORANDUM ON BEAHALF OF APPELANT

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❖ One Geeta Mahi was killed. ❖ Two other female namely Ganga Mahi and Sunahri Mahi were grievously injured.

C) ---------------------------ACCUSATION ON VIR BAHADUR-------------------------Vir Bahadur was charged under: (i) Sec. 302 I.P.C for murder of Geeta Mahi. (ii) Under Sec.326 I.P.C for having caused grievous hurt to person injured. (iii) Under Sec. 324 I.P.C for having caused hurt to Ravi Krishan.

D) ----------------------------DECISION OF SESSION COURT-----------------------The learned Session Judge held the accused guilty on the ground that he did not act with ‘due care and attention’.

E) ----FINAL VERDICT OF THE HON, BLE TAXILA HIGH COURT----1.The appellant stated that when he attacked his victim, he thought he was attacking ghosts and not human beings. The state urged that he did not act with ‘due care and attention’. 2. Ravi Krishan has contradicted with his own previous statement made under Sec. 161 CrPC. In his earlier statement under that Section he admitted that Dushyant Singh persuaded him to go out of his house to see ghosts. However, before the COS, he did not admit that he went with Dushyant Singh to see ghosts. 3. Court, called into question, the credibility of evidence given by Dushyant Singh, as Vir Bahadur was servant of Dushyant Singh, so he might have sympathy for his servant. But Dushyant’s evidence has been consistent throughout & therefore reliable. 4. The court also refused to rely on the statement of Chand Mahi, who was being escorted at the time of the incident because though he had stated before the police that on account of fear of ghost he took shelter in the tea stall of Ravi Krishan and while giving evidence in COS Judge and tried to make it appear as though he was a brave man who had no fear of ghosts. 5. Jishnu & Jitendar stated that the appellant had a torch in his hand.

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6. High Court decided on the on the application of general defence. The court decided that the benefit of the general defence is available to person who by reason of fact in good faith believes himself to be justified by law in doing an act. And it was clear from the statement of Dushyant Singh that the accused was a firm believer of ghost & thought beyond shadow of a doubt that he was attacking ghosts. Court held that accused is entitled to the protection of general defence. 7. The Hon’ble Taxila High Court held the accused not guilty on the ground that the actions of Vir Bahadur was consequences of bona fide mistake of fact and under a sincere belief that he was attacking ghosts & not human beings & hence he was not acquitted relying on section 79 of I.P.C.

F) -----------------------MATTER REACHES TO SUPREME COURT--------------State filed a special leave petition in the Hon’ble S.C of India against the acquittal of the respondent.

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STATEMENT OF ISSUES

THE

APPEALANT

RESPECTFULLY

PLEADS

BEFORE

THE

HON’BLE

SUPREME COURT THE FOLLOWING ISSUES:

ISSUE I 1. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION OR NOT?

ISSUE II 2. WHETHER THE CHARGES LEVELLED AGAINST VIR BAHADUR ARE MAINTAINABLE OR NOT?

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SUMMARY OF ARGUMENTS

ISSUE I 1. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION OR NOT? It is submitted that all the necessary essentials to prove the verdict of the HC is erroneous viz... •

That the offence committed was heinous offence.

•

Principle of reasonable foresight exists.

•

There are major discrepancies in the defence version.

•

Credibility of PW 7 (Dushyant Singh) is questionable.

•

That PW 2 (Jitesh) & PW 3(Jishnu) are credible witnesses.

ISSUE II 2. WHETHER THE CHARGES LEVELLED AGAINST VIR BAHADUR ARE MAINTAINABLE OR NOT? It is submitted all the necessary essentials to prove the offence under IPC has been satisfied viz... •

Actus Reus of murder is proven.

•

Arguendo, absence of motive is irrelevant.

•

Good Faith is not established.

•

Accused cannot avail the Right of private defence.

•

Free from strong hold of superstition.

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ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

ISSUE-I 1. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION OR NOT? It is humbly submitted that, the High Court had made an erroneous decision and hence the respondent must be convicted under all the charges levelled against him i.e. section 302, 324, 326 of IPC, 1860. The word crime has its roots in the Latin word crimen, meaning judgement, accusation, and offence, and its origin are clearly legalistic. Numerous social scientists and legal scholars have offered definitions of crime within this legal perspective. The Late Edwin H. Sutherland, perhaps the most renowned American criminologist of the mid twentiethcentury, suggested that “the essential characteristic of crime is that it is behaviour which is prohibited by the state and against which the State may react.”2 Black’s law dictionary defines crime as “a positive or negative act in violation of the penal law; an offence against the State.”3 In the field of criminal justice it is defined simply as “violation of the criminal law.” Yet these definitions, while correct in focusing on the law to delineate the limits of crime, fail to offer the kind of precision necessary for a full understanding of the term. We cannot simply call crime a violation of law, for there are numerous circumstances under which identical behaviours would not be classified as criminal. Crime is an intentional act or omission in violation of criminal law (statutory and case law), sanctioned by the state as a felony or misdemeanour. 4

2 3 4

James A. Inciardi (2nd ed. Criminal Justice, University of Delaware, HBJ Publishers) pg no. 46 ibid ibid MEMORANDUM ON BEAHALF OF APPELANT

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(1)-----------------------------CRIMINAL INTENT-------------------------For an act or omi...