Memorial On The Behalf of The Appellant
Memorial On The Behalf of The Appellant
Memorial On The Behalf of The Appellant
versus
TABLE OF CONTENTS
LIST OF ABBREVIATIONS 2
STATEMENT OF JURISDICTION 7
II. WHETHER THE TRIAL COURT HAS THE POWER TO GRANT THAT
DECISION?......................................................................................................25-29
PRAYER 36
VERIFICATION 37
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MEMORIAL ON BEHALF OF THE APPELLANT
LIST OF ABBREVIATIONS
Abbreviation Meaning
@ alias
& and
AIR All India Reporter
Art. Article
Assn. Association
CBI Central Bureau of Investigation
COI Constitution of India
Cri. Criminal
Cr.L.J. Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Govt. Government
HC High Court
Hon’ble Honorable
i.e. that is
IPC Indian Penal Code
Ltd. Limited
Mohd. Mohammed
NCT National Capital Territory
Ors. Others
P. Private
R.I. Rigorous Imprisonment
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
SLP Special Leave Petition
u/s Under Section
v. versus
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MEMORIAL ON BEHALF OF THE APPELLANT
LIST OF AUTHORITIES
A. CASES REFERRED–
Page No.
4. Babu Singh and Ors v. The State of Uttar Pradesh, (1978) 1 SCC 579.......................32
10. Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406...........................16
11. Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal, AIR
1955 SC 65...................................................................................................................17
12. Dharam Pal v. State Of Haryana, 1999 (4) RCR (Cri.) 600........................................33
15. Gudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra Pradesh,
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MEMORIAL ON BEHALF OF THE APPELLANT
20. Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 SC
1360..............................................................................................................................32
21. Ishvarbhai Fuljibhi Patni v. State of Gujarat, 1995 (1) SCC 178; 1995 SCC (Cri.)
222................................................................................................................................27
25. Khem Karan v. The State of Uttar Pradesh, AIR 1974 SC 1567.................................22
29. M/S. Variety Emporium v. V. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207.........16
31. Ram Shankar v. The State of Madhya Pradesh, AIR 1981 SC 644.............................22
40. Smt. Akhtari Bi v. State of Madhya Pradesh, AIR 2001 SC 1528; (2001) 4 SCC
355................................................................................................................................31
41. State of Andhra Pradesh v. Polamala Raju & Rajarao, (2000) 7 SCC 75...................27
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MEMORIAL ON BEHALF OF THE APPELLANT
45. State of Punjab v. Prem Sagar and Ors., (2008) 7 SCC 550............................22, 26, 28
47. Suddu Kumar v. State of Bihar, Criminal Appeal (DB) No.583 of 2015....................34
49. Sunil Dutt Sharma v. State (Govt of NCT of Delhi), AIR 2013 SC 2342...................24
50. Surinder Singh alias Shingara Singh v. State of Punjab, (2005) 7 SCC 387...............32
52. Ubed, son of Latifur Rahman v. The State of Bihar, 30 January, 2017, Criminal
54. Vivian Rodrick v. The State of West Bengal, AIR 1971 SC 1584; (1971) 1 SCC
468...............................................................................................................................22
C. JOURNALS REFERRED–
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MEMORIAL ON BEHALF OF THE APPELLANT
D. BOOKS REFERRED–
Ratanlal and Dhirajlal’s The Code of Criminal Procedure – 22nd Edition, 2017
www.scconline.com
www.manupatra.com
www.livelaw.in
www.judis.nic.in
www.indiankannon.org
www.legalindia.com
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MEMORIAL ON BEHALF OF THE APPELLANT
STATEMENT OF JURISDICTION
The Appellant has approached the Hon’ble Supreme Court of India by way of Special Leave
to Appeal under Article 136 of the Constitution of India and the Hon’ble Supreme Court
of India has the inherent jurisdiction to try, entertain, and dispose of the present matter by
virtue of the said Article i.e. Article 136 of the Constitution of India. Article 136 of the
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any Court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any Court or tribunal constituted by or under any law relating to the
Armed Forces.”1
1
The Indian Constitution, 1950.
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MEMORIAL ON BEHALF OF THE APPELLANT
STATEMENT OF FACTS
For the sake of brevity and convenience of this Hon’ble Court the facts of the present case
1.
That on 08-10-2004 at about 07:30 PM when Rahul, the complainant, reached near the house
of Umesh-his paternal uncle he heard noise coming out from that house. After entering the
house he saw Kartik, Pulkit and Neeraj, all from the same locality, armed with country made
pistols in their hands, abusing his cousin Yogesh, Shubham and his niece Ravita, who then
also fired from their pistols with the intention of killing them.
2.
That the bullet fired by Kartik injured Yogesh, that of Pulkit injured Ravita on her abdomen,
who was pregnant, and the bullet fired by Neeraj injured Shubham in his Head, leaving all of
them in critical state. The incident was witnessed by D,E,F etc. Rahul then gave written
report at the Police Station after getting it written by P Singh on 08-10-2004 at 08:45 PM.
3.
That on the same day the investigation was conducted by Sub-Inspector V Singh and site
plan was prepared and the statements of the witnesses were also recorded. Pulkit died during
the investigation; therefore, charge-sheet was filed against Kartik and Neeraj for offences
punishable u/s 452, 307, 316 and 504 of IPC. Kartik was then declared as Juvenile to be tried
separately. The case was committed to the Court of Sessions for trial on 18-05-2005. The
trial was proceeded as S.T. No. 390 of 2005 in the Court of Additional Sessions Judge.
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MEMORIAL ON BEHALF OF THE APPELLANT
4.
That Neeraj was charged for the offences u/s 452, 307/34, 504 and 316/34 of IPC. The Trial
Court by Judgment dated 11-12-2007 convicted the appellant-accused for the offences
punishable u/s 452, 307/34, 504 and 316/34 of IPC and sentenced him to Seven years’ R.I.
with fine of ₹ 5000/- u/s 452 IPC, in default of payment of fine, to further undergo Three
Months’ simple imprisonment, Imprisonment for Life with fine of ₹10,000/- u/s 307/34 IPC,
in default of payment of fine, to further undergo Six months’ simple imprisonment, Ten
years’ R.I. with fine of ₹ 5000/- u/s 316/34 IPC, in default of payment of fine, to further
undergo simple imprisonment for Three months and Two years’ R.I. with fine of ₹ 1000/- u/s
504 IPC, in default of payment of fine, to further undergo simple imprisonment of One
5.
That, aggrieved by the Judgment of the Trial Court, the appellant-accused preferred an
Appeal being Criminal Appeal before the Hon’ble Allahabad High Court. The High Court,
by Judgment dated 21-04-2015, dismissed the appeal and upheld the judgment of conviction
6.
That against the said judgment of the High Court, the appellant-accused has preferred this
appeal by way of Special Leave before this Court i.e., Hon’ble Supreme Court of India
urging that he has already undergone custody around 10 to 12 years till date and hence, it
would be just and proper to reduce his sentence to already undergone and he be set at liberty
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II. WHETHER THE TRIAL COURT HAS THE POWER TO GRANT THAT
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MEMORIAL ON BEHALF OF THE APPELLANT
SUMMARY OF PLEADINGS
Art. 136 is very broad-based & confers discretion on the Court to hear “in any cause or
matter. Trial Court has acted mechanically and arbitrarily having ignored the gravity of
the offence to be low by the reason of the fact that victim has survived. The HC also
erred in affirming the order of conviction imposing the maximum sentence under normal
circumstances. The jurisdiction conferred under Art. 136 on the SC is corrective one &
not a restrictive one. The SC has held that under Art. 136 the SC has wide power to
interfere and correct the judgment and order passed by any Court or tribunal in India. In
addition to the appellate power, the Court has special residuary power to entertain appeal
against any order of any Court. if the Court does not interfere in cases where a clear case
of miscarriage of justice is made out, the Court would be failing in its responsibility
II. WHETHER THE TRIAL COURT HAS THE POWER TO GRANT THAT
The Statutory Power of Trial Court u/s 28 of Cr.P.C. to grant that quantum of punishment
is not unqualified and is subject to and guided by certain general Judicial Principles and
guidelines and in this case such principles and guidelines have been clearly ignored by
the trial Court. It is also pertinent to note that the fact that victim-Shubham, to whom the
appellant caused the injury by gunshot having survived, the Courts below should have
taken into account this fact and awarded the sentence in the first part of Sec. 307 IPC,
which could extend only upto 10 years and fine. Therefore, sentence of imprisonment for
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MEMORIAL ON BEHALF OF THE APPELLANT
life for offence u/s 307 is excessive. The legislature has bestowed upon the judiciary this
enormous discretion in the sentencing policy, which must be exercised with utmost care
and caution. It may be pointed out here that the severe sentence defeats the objective of
punishment. The extreme penalty can be inflicted only in gravest cases of extreme
culpability and in making the choice of sentence due regard must be paid to the
The HC had made an erroneous decision by reason that it had affirmed the already
erroneous decision of the Trial Court, the error which was apparent on the face of the
record, while ignoring the important facts and considerations. A significant thing to note
significant observation to note is that the courts while imposing sentence must take into
consideration the principles applicable thereto. It requires application of mind but in the
present case both the courts below erred in ignoring the same. There are many
unsatisfactory features in the judgment of the Trial Court which give rise to a fair
assumption that the appellant was likely to succeed in the appeal but, which had been
It is quite well understood and accepted that the appeal by the appellant is not going be
heard for the next two-three years, thus, leading to unreasonable delay, it is humbly
submitted that appellant is entitled to get the Bail. The Apex Court has ruled out that so
long as this Court is not in a position to hear the appeal of an accused within a reasonable
period of time, the Court should ordinarily, unless there are cogent grounds for acting
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MEMORIAL ON BEHALF OF THE APPELLANT
otherwise, release the accused on bail in cases where special leave has been granted to the
accused to appeal against his conviction and sentence. Inordinate delay in hearing on
factor for grant of bail. It was directed by the Court that life convicts, who have
undergone at least five years of imprisonment of which at least three years should be after
conviction, should be released on bail pending the hearing of their appeals should they
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MEMORIAL ON BEHALF OF THE APPELLANT
PLEADINGS SUBMITTED
1.1 That, the Special Leave Petition (hereinafter referred to as SLP) filed by the Appellant is
maintainable by virtue of Article 136 of the Constitution of India. Art. 136 of the COI
read as follows–
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any Court or tribunal in the territory of
India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any Court or tribunal constituted by or under any law relating to the
Armed Forces.”2
1.2 It is pertinent to note that the scope of Art. 134 providing appeals to the SC in criminal
matters is limited whereas that of Art. 136 is very broad-based & confers discretion on
the Court to hear “in any cause or matter”. Therefore, criminal appeals may be brought to
the SC under Art. 136 when these are not covered by Art. 134.3
1.3 In the present case Trial Court has acted mechanically and arbitrarily having ignored the
gravity of the offence to be low by reason of the fact that victim has survived, making the
2
The Indian Constitution, 1950.
3
Sadhu Singh v. Pepsu, AIR 1954 SC 271.
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MEMORIAL ON BEHALF OF THE APPELLANT
case an ordinary in circumstances, and granted maximum punishment for the offence,
which is otherwise meant only for rarest of rare cases, and the High Court also erred in
affirming such order, which have made the case itself a case leading to ‘Grave Injustice
and Miscarriage of Justice’, thus, qualifying to be covered up under Art. 136. And a
serious miscarriage of justice, caused either by an error of law or procedure, can lead the
1.4 In the present case the HC erred in affirming the order of conviction imposing the
maximum sentence under normal circumstances. The jurisdiction conferred under Art.
136 on the SC is corrective one & not a restrictive one. A duty is enjoined upon the SC to
exercise its power by setting right the illegality in the judgments, it is well-settled that
illegality must not be allowed to be perpetrated & failure by the SC to interfere with the
same would amount to allowing the illegality to be perpetuated.5 The Principle is that the
Court should not do injustice nor allow injustice to be perpetuated just for the sake of
upholding technicalities.6
observed, “It is now the well established practice of this Court to permit the invocation of
the power under Article 136 only in very exceptional circumstances, as when a question
of law of general public importance arises or a decision shocks the conscience of the
Court. But, within the restrictions imposed by itself, this Court has the undoubted power
4
Dalbir Kaur v. State of Punjab, 1977 Cr.L.J. 273.
5
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
6
Jamshed Hormusji Wadia v. Board of Trustees, (2004) 3 SCC 214.
7
AIR 1979 SC 1284.
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MEMORIAL ON BEHALF OF THE APPELLANT
acquittal and conviction, if the High Court, in arriving at those findings, has acted
1.6 In Delhi Judicial Service Assn. v. State of Gujarat,8 the SC has held that under Art.
136 the SC has wide power to interfere and correct the judgment and order passed by any
Court or tribunal in India. In addition to the appellate power, the Court has special
1.7 Further it has been duly observed by the SC that if the appellant proves that concurrent
decisions of two or more Courts or Tribunals are manifestly unjust, it is not only the right
of the Supreme Court to do Justice, said that “In ordinary circumstances, the Apex Court
does not interfere with the acquittal or conviction order of the High Court or lower
Courts. But as has been held in Satbir v. Surat Singh,10 the Supreme Court has the power
and duty under Art. 142 to do complete justice, and if the Court does not interfere in cases
where a clear case of miscarriage of justice is made out, the Court would be failing in its
responsibility.”11
1.9 A pertinent proposition laid by the SC is that “it is plain that when the Court reaches the
conclusion that a person has been dealt with arbitrarily or that a Court or Tribunal has not
8
(1991) 4 SCC 406.
9
M/S. Variety Emporium v. V. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207.
10
(1997) 4 SCC 192.
11
Speech Delivered by Hon`ble Mr. Justice P. Sathasivam, Judge, Supreme Court of India at South Zone
Regional Judicial Conference on Enhancing Timely Justice: Strengthening Criminal Justice Administration
on CRIMINAL JURISPRUDENCE OF THE SUPREME COURT.
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MEMORIAL ON BEHALF OF THE APPELLANT
given a fair deal to a litigant, then no technical hurdles of any kind like the finality of
finding of facts or otherwise can stand in the way of the exercise of this special power
because the whole intent and purpose of the article is that it is the duty of the Supreme
Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and
tribunals because certain laws have made the decisions of those Courts or tribunals final
and conclusive.”12
1.10 Further, it may be desirable to consider that Hon’ble SC has in many cases granted
Special Leave to Appeal limited to the question of Sentence among which Tarlok Singh
1.11 Moreover, the matter of imposition of Life Imprisonment in the case of attempt to
murder u/s 307 IPC, where the circumstances being no extraordinary, is violative of Art.
21 of the COI. Art. 21 provides that ‘No person shall be deprived of his life or personal
by law means’ the procedure duly established, recognized and warranted by law. In this
line, law never allows, calls for or permits arbitrariness and if there exists arbitrariness, it
is ultra-vires the procedure established by law. Therefore, anything ultra-vires the law is
1.12 The extent of injustice caused to the appellant-accused demands the intervention of
12
Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal, AIR 1955 SC 65.
13
1977 AIR 1747.
14
AIR 1976 SC 2386.
15
(2012) 2 SCC 684.
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MEMORIAL ON BEHALF OF THE APPELLANT
2.1 That, No denying that Trial Court has the Statutory Power to grant that quantum of
punishment by virtue of sub-sec. (2) of Sec. 28 of the Cr.P.C. but insofar as it relates to
sentencing an accused, it is not unqualified and is subject to and guided by certain general
Judicial Principles and guidelines which this Hon’ble Court has, in the absence of
Codified General Sentencing Guidelines, carved by great observations and precious time.
And in this very case such principles and guidelines have been clearly ignored by the trial
Court. In such an event, such unguided and unprincipled exercise of the Power of Judicial
Discretion becomes arbitrary and hence, the subject-matter of question and scrutiny.
“28. Sentences which High Courts and Sessions Judges may pass.
(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by
law; but any sentence of death passed by any such Judge shall be subject to confirmation
(3) An Assistant Sessions Judge may pass any sentence authorized by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten
years.”16
16
The Code of Criminal Proedure, 1973.
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MEMORIAL ON BEHALF OF THE APPELLANT
2.2 It is correct that generally in case of attempt to murder lesser punishment than that of
imprisonment for life is awarded, an obvious reason for which may be that attempt to
murder is undoubtedly lesser act than successfully commissioned offence of murder. This
general rule and principle has been overlooked by the Trial Court.
2.3 It is also pertinent to note that the fact that victim-Shubham, to whom the appellant
caused the injury by gunshot having survived, the Courts below should have taken into
account this fact and awarded the sentence in the first part of Sec. 307 IPC, which could
extend only upto 10 years and fine. Therefore, sentence of imprisonment for life for
offence u/s 307 is excessive, which has been awarded in the arbitrary and mechanical
exercise of the judicial discretion by the Trial Judge ignoring the well established
guidelines and principles laid down by this Court in concrete cases before it.
“307. 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 imprisonment for life, or to such
Attempts by life convicts.—When any person offending under this section is under
sentence of imprisonment for life, he may, if hurt is caused, be punished with death.”17
17
The Indian Penal Code, 1860.
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2.4 The maximum punishment provided u/s 307 is imprisonment for life or a term which may
extend to 10 years. Although Sec. 307 does not expressly state the minimum sentence to
be imposed, it is the duty of the Courts to consider all the relevant factors to impose an
appropriate sentence. The legislature has bestowed upon the judiciary this enormous
discretion in the sentencing policy, which must be exercised with utmost care and
caution. The punishment awarded should be directly proportionate to the nature and
2.5 Just punishment is the collective cry of the society. While the collective cry has to be kept
uppermost in the mind, simultaneously the principle of proportionality between the crime
and punishment cannot be totally brushed aside. The principle of just punishment is the
discretion to the Judge but the same has to be guided by certain principles.19
2.6 This Court has made a very significant observation in the case of Sumer Singh v.
matter of discretion, yet the said discretion cannot be used by a Court of law
of the relevant factors have to form the fulcrum for lenient use of the said
18
Hazara Singh v. Raj Kumar, (2013) 9 SCC 516.
19
Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545.
20
2014 (7) SCC 323.
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MEMORIAL ON BEHALF OF THE APPELLANT
Judicial Process[23]:
“The Judge even when he is free, is still not wholly free. He is not to
30. In this regard, we may usefully quote a passage from Ramji Dayawala
reason and fair play, and not according to whim and caprice. ‘Discretion’,
fanciful, but legal and regular’ (see Craies on Statute Law, 6th Edn., p.
273).”
2.7 Further on many occasions it has been duly held, observed and reiterated that Nature of
the offence, the manner in which it is committed, the weapon used, motive behind
commission, gravity of the offence, the offender himself, mental age of the offender,
mitigating, aggravating and extenuating facts are all relevant factors that goes into
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MEMORIAL ON BEHALF OF THE APPELLANT
consideration while determining a just and adequate sentence.21 But the Trial Court has
between the competitive claims of deterrent and reformative theories of punishment has
to be adjusted, in order to meet the ends of justice. It may be pointed out here that the
severe sentence defeats the objective of punishment. The more severe the sentence, the
less are chances of rehabilitation of the offenders.22 Further, the Court observed that the
maximum penalty for any offence is meant for only the worst cases.23
2.9 However, in India, the view always has been that the punishment must be proportionate
to the crime. Applicability of the said principle in all situations, however, is open to
question. Judicial discretion must be exercised objectively having regard to the facts and
2.10 In the case of Sanjay v. State of Uttar Pradesh25, the SC altered the conviction of
the accused under Sec. 302 to Sec 304 Part II of IPC relying merely on the fact that the
deceased lived for Sixty Two days after having been discharged from the Hospital under
21
Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532; Santa Singh v. State of Punjab, AIR 1976 SC 2386;
Hazara Singh v. Raj Kumar, (2013) 9 SCC 516; Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734;
Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359; Alister Anthony Pareira v. State of Maharashtra,
(2012) 2 SCC 648; Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635; Sevaka Perumal v. State of
Tamil Nadu, AIR 1991 SC 1463; State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222.
22
Shyam Narain v. The State of Rajasthan, 1974 Cri.L.J. 1006.
23
Vivian Rodrick v. The State of West Bengal, AIR 1971 SC 1584; (1971) 1 SCC 468; Chawla v. State of
Haryana, AIR 1974 SC 1039; Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799; Khem Karan v.
The State of Uttar Pradesh, AIR 1974 SC 1567; Vasant Laxman More v. State of Maharashtra, AIR 1974 SC
1697; Mohd. Aslam v. State of Uttar Pradesh, AIR 1974 SC 678; Ram Shankar v. The State of Madhya
Pradesh, AIR 1981 SC 644.
24
State of Punjab v. Prem Sagar and Ors., (2008) 7 SCC 550.
25
2016 (3) SCC 62.
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MEMORIAL ON BEHALF OF THE APPELLANT
stable and normal condition, before dying due to Septicaemia, though it developed of
injury caused by the accused in his head, the vital point. In place of Life Imprisonment,
2.11 In an another case involving a charge u/s 307 IPC along with others, the Sessions
Judge inflicted upon the Respondent the punishments of simple imprisonment for a
period of only Two years and fine of ₹ 2,000, in default of payment of which to further
undergo imprisonment for a term of three months, for each offence for which he was
punishable.26
27
2.12 In Bachan Singh v , the Hon'ble Apex Court, while interpreting
Sec. 354(3) and 235(2) of Cr.P.C. elaborated two aspects, firstly that the extreme penalty
can be inflicted only in gravest cases of extreme culpability and secondly, in making the
choice of sentence due regard must be paid to the circumstances of the offender also. In
the same case it was observed that Life Imprisonment is the rule and death sentence is an
exception.
2.13 In Machhi Singh v. State of Punjab28, the Apex Court supplemented the principles
laid down in Bachan Singh’s case with a few more elaborate guidelines regarding the
26
State of Himachal Pradesh v. Nirmala Devi, 2017(4) Scale 442.
27
AIR 1980 SC 898.
28
(1983) 3 SCC 470.
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MEMORIAL ON BEHALF OF THE APPELLANT
b) Are the circumstances of the crime such that there is no alternative but to impose
From the usage of the term ‘death sentence’, the above laid two guidelines are interpreted
in respect of and as ‘for and applicable to the cases awarding maximum punishment’ and
interpreting that further, forming its applicability to the present case, as it involves
maximum punishment, the present case gives out negative answers to both the guidelines.
In such case, awarding maximum punishment is not justified, is arbitrary, and is out of
principles.
2.14 In Sunil Dutt Sharma v. State (Govt of NCT of Delhi)29, the Hon’ble Apex Court
has dealt with sentencing jurisprudence at length and opined that the principles of
sentencing evolved by this Court over the years, though largely in the context of the death
penalty, will be applicable to all lesser sentences so long as the sentencing Judge is vested
2.15 Maximum punishment is to be given in rarest of rare cases when manner of offence
is brutal, motive is to gain money-property, but if the offence is committed in one time
2.16 Therefore the Trial Court having ignored all the above stated facts and the
determinants, the above referred judicial precedents and well settled guidelines and
29
AIR 2013 SC 2342.
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MEMORIAL ON BEHALF OF THE APPELLANT
3.1 That, the HC had made an erroneous decision by reason that it had affirmed the already
erroneous decision of the Trial Court, the error which was apparent on the face of the
record, while ignoring the important facts and considerations by which the appellant-
accused had all probability of succeeding in appeal. It is the case of an error upon an error
3.2 Following are the important facts which neither of the Courts below has appreciated:
i. There was no intention to kill and the act took place in fit of anger.
iii. The manner in which the offence was committed was not brutal or inhuman and
Life is awarded for the reason that it is undoubtedly lesser act than successfully
commissioned offence of murder and Imprisonment for Life is the rule in Murder
Cases.
Therefore, both the Courts below erred in awarding “life imprisonment” to the appellant
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MEMORIAL ON BEHALF OF THE APPELLANT
3.3 A significant thing to note is that underlying principle of our sentencing jurisprudence is
reformation30 and another significant observation to note is that the courts while imposing
sentence must take into consideration the principles applicable thereto. It requires
application of mind. The purpose of imposition of sentence must also be kept in mind.31
In the present case the theory of reformation which is primarily followed by the justice
system in India while sentencing, has been completely kept aside and ignored by the HC.
3.4 Further, it is pertinent to note a remarkable observation of this court in Gopal Singh v.
any play. For every offence, a drastic measure cannot be thought of.
the circumstances in which the crime has been committed and other
punishment.”
3.5 A confirming judgment need consider the contentions urged before the court and record
30
Gurdev Singh v. State of Punjab, (2003) 7 SCC 258.
31
State of Punjab v. Prem Sagar, (2008) 7 SCC 550.
32
(2013) 7 SCC 545.
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MEMORIAL ON BEHALF OF THE APPELLANT
reasons for agreeing with the order under appeal.33 The Hon’ble SC has also observed
that on a plain requirement of justice, the High Court while dealing with a first appeal
against conviction and sentence is expected to, howsoever briefly depending upon the
facts of the case, consider and discuss the evidence and deal with the submissions raised
at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential
3.6 Following are some cases among many where this court had set aside the orders of the
respective High Courts by showing its dissatisfaction for non-application of mind by the
1) In State of Andhra Pradesh v. Polamala Raju & Rajarao35, Three judge bench of
the Apex Court set aside the judgment of the High Court for non-application of mind
in reducing the sentence in a mechanical manner. The HC reduced the sentence u/s
376 IPC from Ten years’ R.I. to Five years’ R.I. without recording any reasons for the
same.
dissatisfaction for non-application of mind by the HC and set aside its order
converting the sentence of the accused u/s 366/377 IPC for Seven-Seven years’ R.I.
to that of already undergone for the period of Four years and Two months. And also
held that mere existence of discretion by itself does not justify its exercise. Discretion
33
State of Uttar Pradesh v. Kamarujjama, (2002) 3 SCC 342.
34
Ishvarbhai Fuljibhi Patni v. State of Gujarat, 1995 (1) SCC 178; 1995 SCC (Cri.) 222.
35
(2000) 7 SCC 75.
36
(2009) 2 SCC 272.
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MEMORIAL ON BEHALF OF THE APPELLANT
Imprisonment by the Trial Court and the HC released them on probation to which the
SC expressed its dissatisfaction and held that HC was completely at error while doing
so and set aside the order of the HC sentencing them to Six months’ simple
imprisonment.
On many occasions it has been held by this Hon’ble Court that undue sympathy to
impose inadequate sentence would do more harm to the justice System38 and equally, a
punishment should not be disproportionately excessive39. So, in light of these well settled
principles, where in the above referred cases, the Apex Court held the High Courts to be
erroneous in showing undue sympathy to the accused while sentencing, likewise in the
present case, where it has been attempted to prove that the awarded sentence is excessive
and inadequate, HC was at error while affirming the Orders of the Trial Court.
3.7 Further, it is well established that the matter of issuing certificate under Art. 134(1)(c) is
within the discretion of the High Court but at the same time it is well established that HC
is bound to grant Certificate under Art. 134(1)(c) of COI once a question of law is said to
arise. In consonance of these establishments with the present case it is submitted that as it
has been attempted above to prove that the Trial Court has ignored important facts and
circumstances of the case and awarded the quantum of sentence which is as a rule
awarded in another offence, offence of Murder-the heinous one, the HC itself had a
substantial question of law put before it. Although HC is all competent and qualified to
answer such questions of law, it should have issued a Certificate under the said provision
so that such substantial question be further put up before the Apex Court and let the Apex
37
(2008) 7 SCC 550.
38
Hazara Singh v. Raj Kumar and Ors, (2013) 9 SCC 516.
39
Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545.
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MEMORIAL ON BEHALF OF THE APPELLANT
Court finally decide it to the full satisfaction of the parties and for also that nothing
remains unresolved or unanswered and a detailed precedent is set out. But the HC having
mechanically affirmed the erroneous decision of the Trial Court and arbitrarily having not
‘Miscarriage of Justice’.
3.8 Therefore, there are many unsatisfactory features in the judgment of the Trial Court
which give rise to a fair assumption that the appellant was likely to succeed in the appeal
but, which had been ignored by the HC, hence, leading to an erroneous decision.
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4.1 In light of the fact that Indian Courts are, and for the purpose of this case, particularly the
Supreme Court, is heavily over burdened with cases and that, that it has become very
difficult for this Court to devote its time to the tasks which primarily and exclusively are
to be done by it, it is quite well understood and accepted that appeal by the appellant is
not going to be heard for the next two-three years, thus, leading to unreasonable delay, it
is humbly submitted that appellant is entitled to get the Bail, which is further supported
by following arguments–
4.2 The most leading case in which the questions regarding release of convicts/accused
‘most significantly cited, referred to and relied upon precedent’ of this Court. The
precedent set out by judgment of SC in this case has the most significant bearing to the
present case. The Apex Court in this case ruled out that so long as this Court is not in a
position to hear the appeal of an accused within a reasonable period of time, the Court
should ordinarily, unless there are cogent grounds for acting otherwise, release the
accused on bail in cases where special leave has been granted to the accused to appeal
liberty except in accordance with the procedure prescribed by law but that procedure
should be reasonable, fair and just. Now obviously procedure prescribed by law for
40
(1977) 4 SCC 291.
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MEMORIAL ON BEHALF OF THE APPELLANT
depriving a person of his liberty cannot be reasonable, fair or just, unless that procedure
ensures a speedy trial for determination of the guilt of such person. No procedure which
does not ensure a reasonably quick trial can be regarded as reasonable, fair or just, and it
4.4 It has been observed by this Court in Gudikanti Narasimhulu and Ors. v. Public
Prosecutor, High Court of Andhra Pradesh42 that Personal liberty deprived when bail
is refused is too precious a value of our constitutional system recognized under Art. 21,
that curial power to negate it is a great trust exercisable, not casually but judicially, with
lively concern for the cost to the individual and the community. To glamorise
The last four words of Art. 21 are the life of that human right. What then, is 'judicial
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure.
subordinated to 'the primordial necessity of order in the social life'. Wide enough in all
41
Maneka Gandhi v. Union of India, AIR 1978 SC 597; Smt. Akhtari Bi v. State of Madhya Pradesh, AIR
2001 SC 1528; (2001) 4 SCC 355.
42
(1978) 1 SCC 240; (1978) 2 SCR 371.
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MEMORIAL ON BEHALF OF THE APPELLANT
4.5 It is pertinent to note that the significance and sweep of Art. 21 make the deprivation of
liberty a matter of grave concern and permissible only when the law authorizing it is
reasonable, even-handed and geared to the goals of community good and State necessity
spelt out in Art. 19. Reasonableness postulates intelligent care and predicates that
deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi-focal
4.6 Further, Inordinate delay in hearing on substantive appeals because of Court’s inability to
do so would be extremely relevant factor for grant of bail, and undoubtedly, it would be a
good reason to state that there is no practicable possibility of expeditious hearing of the
appeal.44 Even after the period of 1 year of the pendency of the appeal, the issue of
suspension of sentence and release on bail would have to be considered on the basic
ground of delay in the light of the inability of the Court itself to hear and dispose of the
appeal45 and delay in taking up of criminal appeals for final hearing and adjudication can
custody in connection with the concerned trial for a reasonably long time.46
4.7 It is very significant to note that a delay of even one year in commencement of the trial is
bad enough; how much worse could it be when the delay, is as long as 3 or 5 or 7 or even
10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that
43
Babu Singh and Ors v. The State of Uttar Pradesh, (1978) 1 SCC 579.
44
Ubed, son of Latifur Rahman v. The State of Bihar, 30 January, 2017, Criminal Appeal (SJ) No.167 of
2015
45
Anurag Baitha v. State of Bihar, AIR 1987 Patna 274.
46
Surinder Singh alias Shingara Singh v. State of Punjab, (2005) 7 SCC 387.
47
Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1360.
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MEMORIAL ON BEHALF OF THE APPELLANT
4.8 Where a question before the court was that how the issue of inordinate delay in the
hearing of the substantive appeals can be hermetically sealed out of consideration even
for the purpose of suspension of sentence under Section 389 of the Code, the Full Bench
of the Court held that neither principle nor precedent could be cited for any such
constricted view rather even under Section 389 of the Cr.P.C., inordinate delay in hearing
of substantive appeals, because of the Court’s own inability to do so, would be extremely
relevant factor for grant of bail inasmuch as Section 389 of the Cr.P.C. mentions
good reason to state that there is no practicable possibility of expeditious hearing of the
appeal.48
4.9 Moreover, notwithstanding the fact that prisoner’s application for suspension of sentence
and his consequent release on bail cannot be allowed on merit or has been rejected on
merit, the Appellate Court still retains the power to suspend the sentence for such period
as the Court may consider imperative, particularly, when the Court finds that such
suspension of sentence would make the right to life, guaranteed under Article 21 of the
4.10 It was therefore, directed by the Court that life convicts, who have undergone at
least five years of imprisonment of which at least three years should be after conviction,
should be released on bail pending the hearing of their appeals should they make an
48
Anurag Baitha v. State of Bihar, AIR 1987 Patna 274.
49
Chandra Shekhar Bharti v. State of Bihar, decided on 27 January 2014.
50
Dharam Pal vs State Of Haryana, 1999 (4) RCR (Cri.) 600.
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MEMORIAL ON BEHALF OF THE APPELLANT
4.11 Further the Apex Court in Suddu Kumar v. State of Bihar5 , in para 19 observed
as follows–
“19. We are, further of the view that it would be a sound practice if a prayer
and after conviction, taken together when his appeal is not likely to be heard
the appeal.......”
4.12 A significant proposition laid down by this Court in Sanjay Chandra v. CBI52, in
“It is, no doubt, true that the nature of the charge may be relevant, but at the same time,
the punishment to which the party may be liable, if convicted, also bears upon the issue.
Therefore, in determining whether to grant bail, both the seriousness of the charge and
the severity of the punishment should be taken into consideration. The grant or refusal to
grant bail lies within the discretion of the Court. The grant or denial is regulated, to a
large extent, by the facts and circumstances of each particular case. But at the same time,
right to bail is not to be denied merely because of the sentiments of the community
against the accused. The primary purposes of bail in a criminal case are to relieve the
accused of imprisonment, to relieve the State of the burden of keeping him, pending the
trial, and at the same time, to keep the accused constructively in the custody of the Court,
51
Criminal Appeal (DB) No.583 of 2015.
52
2011 (4) SCC 2913.
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whether before or after conviction, to assure that he will submit to the jurisdiction of the
4.13 Since it has been attempted to prove above that Trial court has acted outside the
judicial discretion and went on to impose arbitrary sentence and HC also erred in
affirming the same while overlooking and ignoring the error of the Trial Court and that
the victim have also survived, taking into consideration these facts, it is submitted that
Orders of both the Courts below are liable to be set aside and it shall be just and fair for
Hon’ble SC to sentence the appellant for Ten years’ R.I. with fine u/s 307 Part I IPC.
appellant is entitled to be granted Bail and in the interest of justice, the sentence is liable
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MEMORIAL ON BEHALF OF THE APPELLANT
PRAYER
Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
b) The Power exercised by the Trial Court to grant the given quantum of punishment be
inadequate, and excessive and accordingly reduce the sentence to a lesser sentence
c) The order of the Hon’ble High Court affirming the order of the Trial Court be also
e) The appellant’s sentence be reduced to ‘already undergone’ and he be, thereby, set at
liberty.
And any other relief that the Hon’ble Court may be pleased to grant in the interests of Justice,
For this act of kindness, the appellant shall be duty bound forever pray.
Sd/-
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VERIFICATION
verify that the contents of para nos. 1 to 5 are correct and true to the best of my knowledge
and contents of para 6 are based on legal advice from my Advocate, which I believe to be
true.
Place.................... Sd/-
Date..................... Appellant/Petitioner
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