INDIAN PENAL CODE - CLASS MOOT HIDAYATULLAH NATIONAL LAW UNIVERSITY

IN THE HON’BLE SUPREME COURT OF INDIA

AT NEW DELHI

IN THE MATTER OF

JAI BHAGWAN AND ORS

(Appellant)

v.

STATE OF HARYANA

(Respondent)

ON SUBMISSION TO THE SUPREME COURT OF INDIA

MEMORIAL SUBMITTED ON BEHALF OF THE RESPONDENT

VISHWANATH

(Shantanu Vaishnav)

SECTION-B

ROLL NO- 142, BATCH XI

 JAI BHAGWAN AND ORS V. STATE OF HARYANA

TABLE OF CONTENTS

1. ABBREVIATIONS................................................................................................................. .2

2. INDEX OF AUTHORITIES........................................................................................................3

3. STATEMENT OF FACTS..........................................................................................................5

4. STATEMENT OF JURISDICTION…………………………………………...…………………7

5. ISSUE RAISED ......................................................................................................................8

6. SUMMARY OF PLEADINGS.....................................................................................................9

7. WRITTEN SUBMISSION……………………........................................................................10

8. PRAYER FOR RELIEF ………………….……………...………..................………….……14

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

ABBREVIATIONS

¶ Paragraph
& And
§ Section
A.I.R. All India Reporter
ALL Allahabad
Anr. Another
Art. Article
Assn. Association
Co. Company
CriLJ Criminal Law Journal
Del. Delhi
Ed. Edition
Etc. Etcetera
Id. Ibid
Ltd. Limited
LLJ Labour Law Journal
LJ Law Journal
No. Number
Ors. Others
P. Page
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reporter

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

INDEX OF AUTHORITIES

1.CONSTITUTION/STATUTES REFERRED
• The Constitution of India, 1950.
• Indian Penal Code, 1860.

2. JUDICIAL DECISIONS
1. V. C. CHERIYAN V. STATE (1982 CRILJ 2071)
2. KRIPAL AND ANOTHER VS STATE OF U.P (A.I.R 1954 SC 706)

3. BANTA SINGH VS STATE OF PUNJAB (1991 CR LJ 1342)

4. PRABHU VS STATE OF MADHYA PRADESH (1991 CR LJ 1373)

5. INDER SINGH BAGGA SINGH VS STATE OF PEPSU (AIR 1955 SC 439)

3. BOOKS REFERRED

• Pillai PSA, Criminal Law, (11th Ed. 2012)

• Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

• Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)

• Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)

• Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)

• Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)

• Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)

4. DICTIONARIES

• WEBSTER’S NEW ENCYCLOPEDIC DICTIONARY, (1993).

• P.R. AIYAR, THE LAW LEXICON, (2nd ed., 1997).

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

5. WEBSITES

• http://www.manupatra.co.in/LegalSearch

• http://www.judis.nic.in

• http://www.scconline.com

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

STATEMENT OF FACTS

1. The Dispute arose when the deceased (prithvi) went to the land for irrigating purpose
which the deceased and his son were having possession from last thirty(30) years and the
deceased asked the accused (jai bhagwan) (A1) to turn off the water so he can irrigate the
land by this the accused got offended and stated that he would settle the matter right then
started hurling abuses at the deceased and during the altercation, Smt. Parwari, mother
of accused(jai bhagwan) , exhorted him to give a blow on the vertex to bring them to
senses and under control. Then accused jai bhagwan who was armed with ballam dealt a
blow with it on the head of the deceased. Sushil (A3) dealt a blow with churra (knife) on
the face of the deceased. Thereafter, the deceased fell down. While he was lying down,
Anil (A-2) dealt a blow with goudas and the others caused several injuries on his body. In
the process, Smt. Chander the daughter (PW-5), Smt. Krishna deceased daughter in law
(PW-8) and deceased son Wazir Singh (PW-6) were also injured.

2. They were taken by Hawa Singh (PW-11) to hospital where they were examined by
doctors and Prithvi(deceased) was declared dead. On considering the evidence of the eye-
witnesses, PWs. 5, 6 and 8, medical evidence of PWs. 1, 2 and 7 and postmortem report,
the trial court negative the plea of self- defence, found A-1 and A-3 guilty of offence
under Section 302/34 IPC and sentenced them to undergo imprisonment for life and to pay
fine of Rs. 2,000/- each, in default of payment of fine, to undergo further rigorous
imprisonment of one year and convicted A-2 under Section 307 IPC and sentenced him
to rigorous imprisonment of seven years and to pay fine of Rs. 2,000/-.

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

3. The appellants preferred appeal against their conviction and sentence in the High Court
of Punjab and Haryana. The High Court set aside the conviction and sentence under
Section 302/34 IPC and convicted A1 and A3 under Section 304, Part-1 read with Section
34, IPC and sentenced them to seven year's rigorous imprisonment and altered the
conviction of A2 to one under Section 326 IPC and sentenced him to rigorous
imprisonment for three years.

4. The dispute between the accused group on one hand and the deceased and his sons on the
other which resulted in this unfortunate event relates to four killas of land. The land was
owned by the accused and was so declared by the decree of the Civil court but the same
was not considered by the trial court and found accused were not in possession of land
because there was presentation for the same . There is record [Exh.DX/6] to show that
the accused were put in possession pursuant to partition of the land by the Assistant
Collector and the warrant of possession, though the deceased and his sons were found to
have been in possession and cultivation of the said land for the last thirty years.

QUESTION PRESENTED
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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

1. WHETHER THE ACCUSED A-1 & A-3 WERE RIGHTLY CONVICTED BY TRIAL COURT
UNDER SECTION 302 & SECTION 34 THAT IS PUNISHMENT FOR MURDER & ACT
DONE BY SEVERAL PERSON IN FURTHERANCE OF COMMON INTENTION OF INDIAN

PENAL CODE?

2. WHETHER THE ACCUSED A-2 WAS RIGHTLY CONVICTED UNDER SECTION 307
THAT IS ATTEMPT TO MURDER OF INDIAN PENAL CODE?

3. WHETHER THE ACCUSED CAN TAKE DEFENCE OF RIGHT OF PRIVATE DEFENCE?

4. SUMMARY OF PLEADINGS

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

1. WHETHER THE ACCUSED A-1 & A-3 WERE RIGHTLY CONVICTED BY TRIAL COURT UNDER
SECTION 302 & SECTION 34 THAT IS PUNISHMENT FOR MURDER & COACT DONE BY
SEVERAL PERSON IN FURTHERANCE OF COMMON INTENTION OF INDIAN PENAL CODE?

THE ACCUSED WERE RIGHTLY CONVICTED BY THE TRIAL COURT UNDER SECTION 302&34 FOR
MURDER WITH COMMON INTENTION AS THE ACCUSED WERE ALREADY ARMED WITH BALLAM
AND KNIFE SO BY THIS WE CAN HAVE A CONCLUSION THAT THEY HAD COMMON INTENTION
AND WHEN THE FIRST ACCUSED GAVE BLOW IN HEAD OF DECEASED AND THIRD ACCUSED
ATTACKED WITH KNIFE RESULTING IN DEATH OF THE PRITHVI THE DECEASED . FOR
COMMETING A MURDER, THE ACT IS CAUSED DIRECTLY. AND FOR COMMON INTENTION
PHYSICAL PRESENCE, PROMOTION OF CRIME OF COMMON INTENTION ARE KEY ELEMENT
WHICH IS PRESENT IN THIS CASE.

2. WHETHER THE ACCUSED A-2 WAS RIGHTLY CONVICTED UNDER SECTION 307 THAT IS
ATTEMPT TO MURDER OF INDIAN PENAL CODE?

YES, THE ACCUSED A-3 IS RIGHTLY CONVICTED BY TRIAL COURT UNDER SECTION 307 FOR
ATTEMPT TO MURDER AS HE ALSO PARTICIPATED IN THE FIGHT THOUGH NOT OF THAT SERIOUS
NATURE BUT HE SHARED THE COMMON INTENTION WITH THE OTHER TWO AND HURTING THE
OTHER MEMBER OF DECEASED. A-2 DEALT A BLOW WITH GOUDAS AND THE OTHERS CAUSED
SEVERAL INJURIES ON HIS BODY. A-2 ACTED WITH BOTH OTHER ACCUSED SO HE IS ALSO
LIABLE TO ATTEMPT TO MURDER.

3. WHETHER THE ACCUSED CAN TAKE DEFENCE OF RIGHT OF PRIVATE DEFENCE?

NO , THE ACCUSED CANNOT TAKE THE DEFENCE OF RIGHT OF PRIVATE DEFENCE AS THE
DECEASED NOT ARMED WITH ANYTHING HE JUST CAME IN LAND FOR IRRIGATING AND THERE
WAS NO THREAT TO THE LIFE OF THE ACCUSED BY THE DECEASED SO THEY CANNOT TAKE THE
DEFENCE OF RIGHT TO PRIVATE DEFENCE AND OF SECTION103 & 104 WHICH ARE WHEN THE
RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH& WHEN SUCH RIGHT
EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH AND SUBJECT TO THE RESTRICTION OF
SECTION 99 . AND MORE OVER THE ACCUSED WERE NOT IN POSSESSION OF LAND THIS WAS
ALSO FOUND OUT BY TRIAL COURT.

WRITTEN SUBMISSION

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

1. WHETHER THE ACCUSED A-1 & A-3 WERE RIGHTLY CONVICTED BY TRIAL COURT UNDER
SECTION 302 & SECTION 34 THAT IS PUNISHMENT FOR MURDER & CO ACT DONE BY

SEVERAL PERSON IN FURTHERANCE OF COMMON INTENTION OF INDIAN PENAL CODE?

Yes, the accused A-1&A-3 are rightly convicted by trail and should be convicted under
section 302 & section 34 and should not be allowed to take defence of right of private
property defence. Under section 302 because there was intention of the accused to cause harm
or death in this case A-1 and A-3 on the land were armed with deadly weapons. On the
exhortation given by their mother, both of them, one after the other, murderously assaulted
the deceased with the weapons with which they were already armed. Not a case of free fight.
They intended to cause injuries and did inflict the said injuries which caused the death of
Prithvi, the deceased. Therefore, they are not entitled to protection of Section 104, IPC. But
for the fact that they exceeded the right of self defence of property under Section 104 IPC,
the offence committed by them would have been one under Section 302 IPC.

1.1.Section 104 of IPC

When such right extends to causing any harm other than death.—If the offence, the committing
of which, or the attempt-ing to commit which, occasions the exercise of the right of private
defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in
the last preceding section, that right does not extend to the voluntary causing of death, but does
extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the
wrong-doer of any harm other than death.

Explaination --- This section is a corollary of section 103. It says that where the offence of
theft, mischief or criminal trespass has been committed or attempted but the description are
different from those enumerated in section 103 of the Code; the right of private defence of
property extends only up to the extent to voluntary causing of any other harm than death.

In V. C. Cheriyan v. State1;

1
1982 CriLJ 2071
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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

The three deceased persons along with some other persons had illegally laid a road through
the private property of a Church. A criminal case was pending in the Court against them. The
three accused persons belonging to the church put up barricades across this road with a view
to close it down. The three deceased who started removing these barricades were stabbed to
death by the accused. The Kerala High Court agreed that the church people had the right of
private defence but not to the extent of causing death of unarmed deceased person whose
conduct did not fall under section 103 of the Code.

Similar is the case of our the deceased was unarmed and wanted to irrigate the land and asked
the A-1 the accused to turn off the water. so he can irrigate the land and if we consider the land
belonged to the accused which was given by civil court in 1984 the accused have no right to
extend the right of private defence to death then are entitle to harm only.

But the trial court here in this case trial court recorded the finding that the accused were not
in possession of the land; their plea of right of private defence was not accepted by the trial
court

Another case examples2

• Where the victim was going on a pathway which went through a private field and on being
challenged by the armed accused owner and others begged sorry for his mistake and
promised never to repeat the same, but even then he was severely beaten resulting in
fracture of arm, it was held that section 104 did not apply and the accused were guilty
• Where the appellant had cultivated land leased to him and had not surrendered its
possession at any time but the crop was being harvested by the prosecution party not armed
with deadly weapons, the appellant did have a right of private defence but not up to the
extent of causing death of a person since his right was limited by virtue of section 104 of
the Code.

The fact of the above case is almost similar to our case if deceased even had his crop in
disputed land the accused could only do harm not causing death. And there existed a common

2
www.shareyouressays.com/knowledge/section-104-of-indian-penal-code-1860- explained/118497
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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

intention to settle the matter and both the accused were already armed with deadly weapon
and common intention is given under section 34 of IPC.

In kripal and other vs State of U.P3

This a common intention case in this case there was dispute for land between two group one
day worker of group were going for work but were stoped and asked by other group member
to not to go for work and beat them. Later the the employer of worker arrived and asked why
they were stopped, in return he was stabbed with knife and later the same person stabbed to
death the brother of already stabbed person a Little far away from the incidence court held
guilty for muder.

And by easement rights under law of tort and transfer of property act the accused cant have
the property easement right says that if a person have possession of property for more than
twenty year and the other party doesn’t object to it the property is now owned by the
possession holder.

1.2. As per section 300 of Indian penal code

It states that Murder. —Except in the cases hereinafter excepted, culpable homicide is murder,

(First) —if the act by which the death is caused is done with the intention of causing death, or—

(Secondly) —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—

(Thirdly) —If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be in-flicted is sufficient in the ordinary course of nature to cause
death.

3
A.I.R 1954 SC 706
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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

If we apply this clauses to our case there was intention to cause harm and the accused were
already harmed with the deadly weapon which is given in the fact.

In Banta singh vs State of Punjab4

In this case involvement of the accused in the incident and misgiving of a barchi blow to the
Grand son of the deceased when he tired to go to the rescue his grandfather is sufficient to
convict the accused under section 300 read with section 34. In our case also accused A-3
gave blow with knife to the deceased and A-1 with ballam blow on head of the deceased which
are vital part of the body and can cause death if there intention was to cause harm and they
knew blowing on vital part of body can cause death. Another case is.

In Prabhu vs State of Madhya Pradesh5

In this case held that “ Having regard to the number of injuries inflicted on the deceased it was not
possible to uphold the contention that there was no intention to kill” this case is similar to our case
A1 who was armed with ballam dealt a blow with it on the head of the deceased. A-3 dealt a blow
with churra (knife) on the face of the deceased. Thereafter, the deceased fell down. While he was
lying down, A-2 dealt a blow with goudas and the others caused several injuries on his body. In
the process, PW-5, PW-8 and PW-6 were also injured. There was intention to kill the dIeceased.

In Inder singh bagga singh vs State of Pepsu6

4
1991 cr lj 1342
5
1991 cr LJ 1373 SC
6
AIR 1955 SC 439
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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

The appellant had given six blows with a lathi stick on head of the deceased one of which
fractured his skull . The injury which broke the skull had caused a depression in the brain
and death was due to brain hemorrhage which is also in our case. Court held that even though
blows were inflicted by the appellant on the head of the deceased with force , the lathi not
being iron rod and the deceased being a Young men strongly built the appellant could not
under the circumstances be held to have intention of causing death of deceased. But in our
case it was a iron used to attack and the deceased was of old age. In our case A1 who was
armed with ballam dealt a blow with it on the head of the deceased. A-3 dealt a blow with
churra (knife) on the face of the deceased. Thereafter, the deceased fell down. While he was
lying down, A-2 dealt a blow with goudas and the others caused several injuries on his body.

Ballam7- A spear, pike, or lance with barbed heads and wooden shafts and a total length of
5.11 feet (1.56 m), of which the blade took up 18 inches (460 mm). The Ballam was
a short spear with a broad head used by infantry. Ballam comes under head spear
and were used by Mughals. Blade were made up of iron and in our case this was
used . And chhura was used which is usually of metal or iron and is sharp and
gandasi was used which is also a metal or iron weapon.

Provocation issue

7
Ballam
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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

The test of grave and sudden provocation is whether a 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

In India, words and gestures may also, under certain circumstances cause grave and sudden
provocation to as accused so as to bring his act within the first exception to section 300

The mental background created by the previous act of victim may be taken into consideration in
ascertaining whether the subsequent act caused grave and sudden provocation for committing the
offence. In our case there was so such instances where the deceased made some provocation to the
accused nor there was any previous conduct to accused to provoke them.

At last the certificate of post mortem He opined that death was caused due to hemorrhage and
shock as a result of injuries on the head and face and that injuries 6 and 7 could be caused by
ballam, Exh. P6 and Gandasi, Exh. P7. Injury No. 7 is attributable to A-1 and injury No. 6 is
attributable to A-3. Both the injuries are on vital parts of the body.

A-1 and A-3 on the land were armed with deadly weapons. On the exhortation given by their
mother, both of them, one after the other, murderously assaulted the deceased with the weapons
with which they were already armed. It was not a case of free fight and it cannot be said that they
did not intend to cause the injuries inflicted by them. They intended to cause injuries and did inflict
the said injuries which caused the death of Prithvi, the deceased.

1.3. Section 34 of Indian penal code

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 him alone.

Here we can conclude that all the three accused shared common intention when they attacked
the deceased and other member of his family and were already armed with deadly weapon and
all three after the deceased fell down in ground one after the other, murderously assaulted the
deceased with the weapons with which they were already armed

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

2. WHETHER THE ACCUSED A-2 WAS RIGHTLY CONVICTED UNDER SECTION 307 THAT IS
ATTEMPT TO MURDER OF INDIAN PENAL CODE?

The accused A-3 was also one of the member and had similar intention which was of A-
1&A-3 causing death of deceased by sharing common intention with them and armed with
deadly weapon and causing grievous hurt to deceased and other member of deceased family
he too should be convicted under section 307 attempt to murder as his act directly didn’t
cause death but by grievous hurt

2.1. Section 307 in The Indian Penal Code.

Attempt to murder.—Whoever does any act with such intention or knowledge, and under
such circumstances that, if he by that act caused death, he would be guilty of murder, shall
be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; and if hurt is caused to any person by such act, the
offender shall be liable either to

1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by

life convicts. —

2[When any person offending under this section is under sentence of 1[imprisonment for life],
he may, if hurt is caused, be punished with death.

And the report of post mortem certificate that death was caused due to hemorrhage and shock
as a result of injuries on the head and face and that injuries 6 and 7 could be caused by ballam,
Exh. P6 and Gandasi, Exh. P7. Injury No. 7 is attributable to A-1 and injury No. 6 is
attributable to A-3 Both the injuries are on vital parts of the body. And by causing injury to
vital part of body his intention was of murder as a reasonable man can interpret if he attacks
on vital part of body that may lead to death of a person. So, he was rightly convicted by trial
and same should be convicted under section 307 of Indian penal code.

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

And we have already seen that A-2 shared common intention under section 34 of Indian
penal code and attacked the deceased and other member of the group and caused death of the
deceased as he too was also armed with deadly weapon called gandasi and injured the vital
part of the deceased which amounted to the death of the deceased which he already of
common nature can derive that if he attack in vital part of body of any person it can directly
amount to the death of person hence it is attempt to murder not a case of culpable homicide
.

3. WHETHER THE ACCUSED CAN TAKE DEFENCE OF RIGHT OF PRIVATE DEFENCE?

3.1 According to section 104 of Indian penal code

When such right extends to causing any harm other than death.—If the offence, the
committing of which, or the attempt-ing to commit which, occasions the exercise of the
right of private defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right does not extend to the
voluntary causing of death, but does extend, subject to the restrictions mentioned in section
99, to the voluntary causing to the wrong-doer of any harm other than death.

This section basically say that a person can act in private defence if there is theft, mischief or
criminal trespass only to extent to harm the other person not to cause death of that person.

It says that where the offence of theft, mischief or criminal trespass has been committed or
attempted but the description is different from those enumerated in section 103 of the Code;
the right of private defence of property extends only up to the extent to voluntary causing
of any other harm than death. The relationship of this section with section 103, both dealing
with defence of property, is similar in nature to that of section 101 with section 100 of the
Code, both dealing with defence of body. Here also the section specifically states that the
restrictions mentioned under section 99 of the Code shall have an overriding influence on
this right. The expression ‘voluntary causing’ has same meaning as ‘voluntarily’ defined
under section 39 of the Code.

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In V. C. Cheriyan v. State7;

The three deceased persons along with some other persons had illegally laid a road through
the private property of a Church. A criminal case was pending in the Court against them. The
three accused persons belonging to the church put up barricades across this road with a view
to close it down.

The three deceased who started removing these barricades were stabbed to death by the
accused. The Kerala High Court agreed that the church people had the right of private
defence but not to the extent of causing death of unarmed deceased person whose conduct
did not fall under section 103 of the Code.

Where the victim was going on a pathway which went through a private field and on being
challenged by the armed accused owner and others begged sorry for his mistake and
promised never to repeat the same, but even then he was severely beaten resulting in fracture
of arm, it was held that section 104 did not apply and the accused were guilty.

Here also in our case deceased was unarmed and accused were armed with deadly weapon
and they exceded the limitation mentioned in section 104 of Indian penal code and caused
the death of deceased prithvi. A common reasonable man would only cause harm to other or
criminal trespass. The deceased and other had only made trespass and the land is still disputed
by the fact provided. And if we go by the fact the accused were not in possession of land as
deceased and other were cultivating the land for last thirty year and by easement right the land
be is of deceased. But still the land is disputed because of the fact provided are not sufficient
to have a conclusion. By this we can say accused are not entitle to take protection under
private defence.

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 JAI BHAGWAN AND ORS V. STATE OF HARYANA

PRAYER FOR RELIEF

Therefore, in the light of facts of the case, issues raised, arguments advanced and
authorities cited, this Court may be pleased to dismiss the appeal and declare that:

a) That the accused A-1&A-3 are rightly convicted under section 302 &
34 of Indian penal code that is punishment for murder.
b) That the accused A-2 is rightly convicted under section 307 of
Indian penal code that is attempt to murder.

Hence it must set aside the earlier decision or pass any other further order(s), as this Hon'ble
Court may deem fit and proper under the circumstances of the case, in the interest of equity,
justice and conscience.

All of which is respectfully submitted.

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

Date: 23 October 2019 (SHANTANU VAISHNAV)

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