ROLL NO.102
MOOT COURT COMPETITION
IN THE HON’BLE SESSION COURT OF PUNE
AJAY………………………………………............... (RESPONDENT)
VERSUS
THE STATE OF MAHARASHTRA…………………………… (COMPLAINANT)
SUBMISSION BEFORE THE HON’BLE SESSION COURT OF PUNE
SUBMITTED BYAdv.MEHEVESH KAZI
SUBJECT INCHARGE:
DR.JACINTA BASTIAN
MEMORANDUM ON BEHALF OF RESPONDENT
COUNSEL APPEARING ON BEHALF OF AJAY
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
3-4
INDEX OF AUTHORITIES
5-7

LEGISLATION
5

CASES REFERRED
5

BOOKS REFERRED
6

LEGAL DATABASES
6

IMPORTANT DEFINATIONS
7
STATEMENT OF JURISDICTION
8
STATEMENT OF FACTS
9-10
QUESTIONS PRESENTED
11
SUMMARY OF PLEADINGS
11-12
PLEADINGS
13-23
1) Whether Ajay had committed an offence u/s 326A of IPC 1860?
2) Whether Ajay had committed an offence u/s 66A of IT Act, 2000?
3) Whether there exists common intention among the accused u/s 34 of IPC1860?
PRAYER
24
LIST OF ABBREVIATIONS
AC
Appeal Case
A.I.R
All India Reporters
All
Indian Law Reports Allahabad series
A.P
Andhra Pradesh
Art.
Article
BLJ
Bombay Law Journal
Bom LR
Bombay Law Reporter
Cr. LJ
Criminal Law Journal of India
CrPC
Criminal Procedure Code
DPs
Directive Policy
Edn.
Edition
FRs
Fundamental Rights
Guj
Gujrat
Hon’ble
Honorable
IPC
Indian Penal Code
Jul
July
Ors.
Others
QBD
Queen’s Bench Division (Eng)
pat
Indian Law Reports Patna series
r/w
Read with
S
Section
SC
Supreme Court
SCR
Supreme Court Reporters
Sec.
Section
TLR
Times Law Reports (Eng)
U.P
Uttar Pradesh
u/s
Under section
V.
Versus
INDEX OF AUTHORITIES
LEGISLATION
1. INFORMATION TECHNOLOGY ACT, 2000.
2. INDIAN PENAL CODE, 1860.
3. CODE OF CRIMINAL PROCEDURE, 1973.
CASES REFERRED

Basdev v. State of Pepsu, AIR 1956 SC 488

Bherusingh v. State, 1956 Madh. BLJ 905

Brend v. Wood, (1946) 62 TLR 462;

C. Magesh v. State of Karnataka, AIR 2010 SC 2768, 49;

Dharam Pal v. State of Haryana, AIR 1978 SC 1492.

Garib Singh v. State of Punjab, 1972 Cr LJ 1286.

Ghurey Lal v. State of UP Criminal Appeal No. 155 of 2006

Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.

Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105.

Lata singh v.State of Uttar Pradesh, AIR 2006 SC 2522

Mehbub Shah vs King Emperor, AIR 1945 PC 148.

Mepa Dana, (1959) Bom LR 269

Nandu & Dhaneshwar Naik v. The State, 1976 CrLJ 250.

Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.

Oswal Danji v. State, (1960) 1 Guj LR 145

Pandurang v. State of Hyderabad, AIR 1955 SC 216

Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.

R v Parks, (1992) 2 S.C.R. 871

R v. Prince, L.R. 2 C.C.R. 154 (1875);

R v. Tolson, (1889) 23 QBD 168

Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653.

Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.

Sohan Lal v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.

State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.

Suraj Singh v. State of Uttar Pradesh, 2008 (11) SCR 286.

T.J.Edward v. C.A. Victor Immanuel, 2002 Cr LJ 1670 (ker).

Uma Dutta v. State of Rajasthan, 1990 Cr LJ 2302: AIR 1990 SC 2158.

Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.)

William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116.

Woolmington v. D.P.P., 1935 AC 462;
BOOKS REFERRED

V.N. SHUKLA, CONSTITUTION OF INDIA (12TH ED., 2013).

DR. D.D. BASU, CONSTITUTIONAL LAW OF INDIA, (8TH ED., 2009).

P.M. BAKSHI, THE CONSTITUION OF INDIA, (14TH ED., 2017).

DR. J.N. PANDEY, THE CONSTITUTIONAL LAW OF INDIA, (51ST ED., 2014).

H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH ED., 2010).

R.S. BEDI, THE CONSTITUION OF INDIA, (10TH ED., 2013).

DR. S.C. KASHYAP, CONSTITUTIONAL LAW OF INDIA, (1ST ED., 2008).

DR. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA,54TH EDITION, 2017.

C.K TAKWANI, LECTURES ON ADMINISTRATIVE LAW, FOURTH EDITION, 2007.

K D GAUR, TEXTBOOK ON INDIAN PENAL CODE, SIXTH EDITION, 2018.

UNIVERAL’S CRIMINAL MANUAL, 2017 EDITION.

SHAILENDER MALIK, THE INDIAN PENAL CODE, TWENTY FIFTH EDITION, 2011.

RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, THIRTHY FOURTH
EDITION, 2012
LEGAL DATABASES

WWW.YOURARTICLELIBRARY.COM

WWW.LEGALSERVICEINDIA.COM

WWW.INDIANKANOON.ORG

WWW.LAWRATO.COM

WWW.MANUPATRA.COM

WWW.INDIANCASELAWS.ORG

WWW.INDLAW.COM

WWW.JUDIC.NIC.IN

WWW.LEXISNEXIS.COM

WWW.SCCONLINE.CO.IN

WWW.WESTLAW.COM

WWW.NCBI.NLM.NIH.GOV
IMPORTANT DEIFINITION:
1. The complainant for the purpose of this memorandum shall be the State.
2. The respondents for the purpose of all the issue shall be Ajay
STATEMENT OF JURISDICTION
The respondents have appeared to the Hon’ble Session Court of India in response to the
complaint filed by the complainant.
STATEMENT OF FACTS
For the sake of brevity and convenience of the Hon’ble Court the facts of the case are
summarized as follows:
A. BACKGROUND OF THE CASE.
1) That Sakshi an 18 year old girl was a student of First Year B.A.
2) That Ajay, a friend of Sakshi from her school, secretly developed emotions for
her and also Sakshi admired him.
3) That on Sakshi’s 18th birthday Ajay had gifted her an expensive watch which
was happily accepted by Sakshi.
B. HATE INCITED BETWEEN SAKSHI’S PARENTS AND AJAY.
4) That on 14th Feb, 2021 Ajay proposed to Sakshi for marriage and since Sakshi
also admired him she asked Ajay to speak to her parents regarding the same.
5) That on 25th Feb, Ajay approached her parents with the marriage proposal as
asked by Sakshi. However Sakshi’s parents rejected his offer and also strongly
admonished Sakshi and threatened that they will discontinue her studies.
6) However out of love Ajay tried contacting Sakshi believing that all her actions
were under undue influence of her parents.
7) That as a responsible man Ajay again tried to convince Sakshi’s parents for their
marriage but her parents strongly revoked his proposal and also beat him brutally
and asked him to leave.
C. ACTION ABETTED BY NILESH
8) That enraged with the feeling of dejection when Ajay went to Nilesh for seeking
advice, Nilesh insisted Ajay that he should find Sakshi alone and take her to the temple
for marrying her. And also Nilesh misleaded Ajay that incase Sakshi resisted the offer
due to parental pressure would threaten her with a bottle of acid.
9) That since Ajay parents died in a road accident, Ajay always confided him and
looked upon Nilesh as his elder brother. Ajay, who was initially reluctant agreed to the
plan on the condition that no harm will be caused to Sakshi and the bottle of acid will
only be used as a tool to convince her for compliance to their wishes.
10) That on 25rd March 2021 when Ajay and Nilesh saw Sakshi passing on a lonely road,
they approached Sakshi to accompany them to the temple so that they can get married. On
Sakshi’s refusal, Nilesh carrying the bottle of acid threatened Sakshi.
11) That when chaos was created, Nilesh accidentally spilled acid on Sakshi.
QUESTIONS PRESENTED
ISSUE I
WHETHER AJAY HAD COMMITTED AN OFFENCE UNDER SECTION 326A OF
IPC, 1860?
ISSUE II
WHETHER AJAY HAD COMMITTED AN OFFENCE UNDER SECTION 66A OF
IT ACT,2000?
ISSUE III
WHETHER THERE EXIST COMMON INTENTION BETWEEN ACCUSED
AJAY AND NILESH AS PER THE SECTION 34 OF IPC, 1860 ?
SUMMARY OF PLEADING
ISSUE I: WHETHER AJAY HAD COMMITTED AN OFFENCE UNDER SECTION
326A OF IPC, 1860?
It is humbly submitted before the Hon’ble Session Court that the respondent had not
committed any offence under Section 326A of IPC as (1.1) There was absence of the
requisites of committing a criminal offence under Sec. 326A i.e. (1.1.1) there was absence of
actus reus and (1.1.2) there was absence of mens rea.(1.1.3) Section 326A can be attracted
only when the act is done voluntarily, but the Respondent has no voluntary control over the
act done by Nilesh.
ISSUE II: WHETHER AJAY HAD COMMITTED AN OFFENCE UNDER SECTION
66A OF IT ACT,2000?
It is humbly submitted before the Hon’ble Session Court that the Respondent has not
committed any offence under Section 66A of IT Act,2000 as Sakshi did not show any
disinterest towards the Respondent and also the conduct of Respondent of trying to talk with
Sakshi was reasonable and justified. Whenever Ajay used to contact Sakshi through internet,
Sakshi never showed disinterest, they used have friendly conversation as they were friends
from long time. And they were always in contact through internet before incident took place.
ISSUE III: WHETHER THERE EXIST COMMON INTENTION BETWEEN AJAY
AND NILESH AS PER THE SECTION 34 OF IPC, 1860?
It is humbly submitted before the Hon’ble Session Court that there existed no common
intention between Ajay and Nilesh as per Section 34 of IPC, 1860 as, (3.1) Ajay had no
intention of committing such an act and he did not agree to that and,(3.2) the act was not done
in furtherance of the common intention under Section 34 which is important to attract the
Section.
PLEADING
I. WHETHER AJAY HAD COMMITTED AN OFFENCE UNDER SECTION 326 OF
IPC, 1860?
It is humbly submitted before this Hon’ble Session Court that to constitute a criminal offence,
two essential elements are required i.e. actus reus and mens rea. In the present case Ajay only
wanted to talk with Sakshi about marriage proposal which was rejected by her parents. Ajay
did not have any intention to harm Sakshi, he only wanted to reconsider his proposal as both
of them were school friends. However the fact of case shows that Nilesh carried the acid
bottle to threatened Sakshi if she refuses to agree with Ajay. But did not have intention to do
so. Therefore I plead the Hon’ble session court to acquit my client.
1.1 ABSENCE OF REQUISITE OF ACTUS REUS AND MENS REA
“ At the most fundamental level, criminal law is based around a single Latin phrase:
“Actus non facit reum nisi mens sit rea”, which translates to “an act does not make a
person guilty unless the mind is also guilty”.
Evidence must be tested for its inherent consistency and inherent probability of the story1.
In the instant case, the entire prosecution story is unreliable.It is a well settled principle in
common law that an offence is constituted by the presence of the actus reus as well as
mens rea2. The requirement of mens rea can be dispensed with only if the statute excludes
mens rea explicitly or by necessary implication3. It imposes a burden on the State to prove
that the defendant “performed the relevant actus reus with the requisite mens rea in the
crime charged”4. Hence, the prosecution needs to prove that a prima facie case exists with
regard to the mens rea as well. There is nothing in the facts to give a slight hint that Ajay
threw acid or had any intention to throw acid on Sakshi. He was in true love with Sakshi,
and could never think of doing such an act.
1
C. Magesh v. State of Karnataka, AIR 2010 SC 2768, ¶ 49; Suraj Singh v. State of Uttar Pradesh, 2008 (11)
SCR 286.
2
R v. Tolson, (1889) 23 QBD 168
3
Brend v. Wood, (1946) 62 TLR 462; Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
4
Woolmington v. D.P.P., 1935 AC 462; Smith and Hogan’s Criminal Law 29 (David Ormerod ed., 13th edn.,
2011).
1.1.1 ACTUS REUS
For actus reus to be made out there must be a voluntary commission of an unlawful
act. All actions are presumed to be voluntary, but the defence can argue that there was
no actus reus because the defendant had no voluntary control of his or her actions.
This was the case in R v Parks5, where the accused presented evidence that he was
sleepwalking at the time he killed his mother and father in law. The Supreme Court of
Canada upheld Mr. Park’s acquittal on the basis that he was not acting voluntarily.
Thus, for actus reus to be made out there must be a voluntary commission of an unlawful
act.
It is humbly submitted before the Hon’ble Court that the unlawful Act of throwing acid
was not committed by the Respondent and he was not holding the bottle of acid, so there
was no Actus Reus on his part. Also the act was unlawful, but was an accident and the
respondent had no voluntary control on it and the acid got poured accidentally by Nilesh.
He also strictly prohibited Nilesh for not using acid.
1.1.2 MENS REA
Courts presume that criminal offences require some form of subjective mens rea—
intent, knowledge, recklessness, or willful blindness—in relation to all aspects of the
actus reus unless Parliament clearly indicates otherwise.”6
Mens rea is a technical term, generally taken to mean some blameworthy mental
condition, whether constituted by intention or knowledge or otherwise, the absence of
which on any particular occasion negatives the intention of a crime. The act becomes
criminal when the actor does it with a guilty mind.
As held in the case on Brend v. Wood7 Lord Goddand, C.J., said:
“It is of utmost importance for the protection of the liberty of the subject that a court
should always bear in mind that, unless a statute either clearly or by necessary
implication rules out mens rea as a constituent part of a crime, the court should not find a
man guilty of an offence against the criminal law unless he has a guilty mind.”
5
(1992) 2 S.C.R. 871.
Source https://certificate.queenslaw.ca/blog/the-brains-and-brawn-of-criminal-law-mens-rea-and-actus-reus,
last visited on 11 April 2019.
7
(1946) 62 TLR 462.
6
The evidence of motive is relevant since it throws a light on the question of intention and
gives clue to a crime, and though the prosecution is not bound to prove motive for a
crime, absence of motive may be a factor in consideration of the guilt of the accused. As
stated by the Supreme Court in Basdev v. State of Pepsu,8 motive is something which
prompts a man to form an intention.
1.1.3. AS PER SECTION 326 A WHOEVER VOLUNTARILY CAUSING GRIEVOUS
HURT BY USE OF ACID ETC. –
Whoever causes permanent or partial damage or deformity to, or bums or maims or
disfigures or disables, any part or parts of the body of a person or causes grievous hurt by
throwing acid on or by administering acid to that person, or by using any other means
with the intention of causing or with the knowledge that he is likely to cause such injury
or hurt, shall be punished with imprisonment of either description for a term which shall
not be less than ten years but which may extend to imprisonment for life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses of the
treatment of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.
“A person is said to cause an effect “volun­tarily” when he causes it by means whereby
he intended to cause it, or by means which, at the time of employing those means, he
knew or had reason to believe to be likely to cause it.”9
According to sec. 39 of IPC 1860, a person is said to cause an effect voluntarily, when he
causes it
(i) intentionally, or
(ii) he knew or had reasons to believe, to be likely to cause it.
It is humbly submitted before the Hon’ble Court that our client did not cause the act
voluntarily as firstly he had no intention of causing harm to the victim and secondly he
had no reasons to believe that such incident would occur as it happened unintentionally.
Moreover our client did not commit such an act.
1.2. SECTION 34 OF THE INDIAN PENAL CODE
8
9
AIR 1956 SC 488.
section 39 of IPC
It is humbly submitted before the Hon’ble Session Court that Section 34 of the Indian
Penal Code recognizes the principle of vicarious liability in criminal jurisprudence. A
bare reading shows that the section could be dissected as follows:
1. Criminal act is done by several persons;
2. Such act is done in furtherance of the common intention of all; and
3. Each of such persons is liable for that act in same manner as it if it were done by
him alone.10
Original section 34 as it stood in original code of 1860 was “When a criminal act is done
by several persons, each of such persons is liable for that act in the same manner as if the
act was done by him alone.” Later what was observed in Queen vs. Gora Chand Gope &
Ors11, new words were introduced into the act, “in furtherance of common intention”.
It is humbly submitted before Honourable Court that this case strongly comes under the
horizon of the new words which were introduced into the section 34 in 1870 and intention
of accused must be studied very carefully as stated in facts as the accused can’t be liable
only because at the time of that particular act of acid attack he was intending to be
partaker with the doer in a different criminal act.
The reason why all are deemed guilty in such cases is that the presence of accomplice
gives encouragement, support and protection to the person actually committing an act. It
must be noted that nowhere the accused encouraged, supported and gave protection to
Nilesh, who actually committed the act. The act sprung wholly from the mind of doer.
Instead Accused-1, Ajay made it clear to Nilesh that bottle will be used only as a tool to
threaten the victim for compliance to their wishes.
To constitute common intention it is necessary that the intention of each one of them be
known to the rest of them and shared by them. It was held in Hanuman Prasad vs State of
Rajasthan.12
In Pandurang vs. State of Hyderabad13, the court had in mind the ultimate act done in
furtherance of common intention. It is submitted that the ultimate act in this case i.e. act
of acid attack was not in the furtherance of common intention as in light of stated facts it
has been made clear that Ajay was devoid of any such intention. He made it very clear
that the acid bottle is just a tool to threaten and no further harm must be caused and the
10
Ratanlal & Dhirajlal, “The Indian Penal Code”, 34th Edition, 2014.
Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45.
12
Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.
13
AIR 1955 SC216: 1955 Cr Lj 572.
11
common intention among the accused evaporated as soon as Nilesh opened the bottle of
acid for the ultimate act. It was sole act of Nilesh and Ajay played no part in that.
In Mehbub Shah vs. King Emperor14 it was clear to the Lordships that the common
intention within the meaning of section implies a pre-arranged plan, and to convict the
accused of an offence applying the section it should be proved that the criminal act was
done in concert pursuant to the pre-arranged plan. Here in this case it is very clear that
there was no pre-arranged plan. Moreover there was no meeting of minds among two
accused. Ajay right from start was very clear that no harm must be done to victim.
It was held in Harbans Nonia vs State of Bihar15 that where the act of murder by main
accused was facilitated by two others by catching hold of the victim but without knowing
or having the intention of causing death, then only common intention that only intention
that could be inferred was that of causing grievous hurt.
In light of the facts of case there was not even the intention of causing the hurt to the
victim in mind of Accused-1. And keeping in view aforesaid judgment it’s not difficult to
conclude that there was absence of common intention on part of Ajay in the act.
It is humbly submitted to honorable Court that the Accused-1 can’t be punished under the
principle of joint liability because he had no intention to bring about grievous hurt or even
knowledge of that such degree of hurt was a likely consequence. Similar situation was
observed in Lala Ram vs State of M.P.16
Hence, it is humbly submitted that there was no presence of common intention on the part
of Ajay in the act of throwing acid on the face of victim and hence the Accused-1, Ajay
can’t be charged under section 34 and hence can’t be held guilty under section 326A of
IPC.
14
Mehbub Shah vs King Emperor, AIR 1945 PC 148.
Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105.
16
AIR 1994 SC 1452.
15
II. WHETHER AJAY HAD COMMITTED AN OFFENCE UNDER SECTION 66A of
IT Act, 2000?
It is humbly submitted before the Hon’ble Session Court that my client Ajay has not
committed an offence under Section 66A of Information Technology Act,2000.
According to Section 66A of IT,
Any person who sends, by means of a computer resource or a communication device,(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill
will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of
such messages,
shall be punishable with imprisonment for a term which may extend to three years and with
fine.
Explanation. -For the purpose of this section, terms "electronic mail" and "electronic mail
message" means a message or information created or transmitted or received on a
computer, computer system, computer resource or communication device including
attachments in text, image, audio, video and any other electronic record, which may be
transmitted with the message.
It is humbly submitted that such conduct on the part of Respondent trying to talk to Sakshi
doesn’t contradict with sec 66A, the act of accused does not covered in clause (c) as they
were having friendly conversation from very long time. Sakshi never stopped Ajay from
contacting her through social media. Moreover, even the ingredients of main definition, such
as “disinterest” and “Foster personal interaction” may not be relevant in such a scenario.
It is humbly submitted before Hon’ble Court in light of facts that the girl never refused his
offer of marrying her. Nowhere in the fact statement a clear “no” to foster a relationship has
been found.
In fact Sakshi, the victim told him to speak to her parents for the same. Instead of denying the
proposal she told him to talk to her parents. This is a strong sign that she was not against
marriage proposal.
Section 66A, IT states that an act would not amount to stalking if in the particular
circumstance, such conduct was reasonable and justified. The accused was always under the
belief she was avoiding him because of pressure of her parents and she was felt threatened by
the consequences. The fact that the accused, rather than stalking the girl, was making
constant efforts in good faith to come to know the real reason why the girl was denying
contact with him and whether she was making a decision with a free mind cannot be
excluded. Hence, the case couldn’t be brought under the horizon of stalking as held by the
complainant.
Our client had constantly approached the parents of the girl with the proposal of marriage and
tried to convince them for same instead of taking up non- desirable means. This clearly shows
lack of malice on the part of the accused.
The circumstantial evidence relied upon by the prosecution is not sufficient to raise an
irresistible inference that the accused has committed the offence of stalking.
The burden of proving the charge lies upon the prosecution. It has failed to discharge its
burden. Thus, the benefit has to go to the accused. The accused must be entitled to get the
benefit of doubt as held in Ghurey Lal v. State of UP.17
Hence it is humbly submitted that the accused shouldn’t be held guilty under Section 66A,
IT, 2000 as the accusations made will not stand the test of law even if the definition of this
section is quite general and wide. It says that such conduct does not amount to stalking in
particular circumstances where the conduct was justified and reasonable. The conduct of the
Respondent was justified and reasonable as the acts of Sakshi clearly showed that she was
interested in our client and he in good faith went to talk with Sakshi thinking she was under
undue influence of her parents, as she was a bright student and her parents threatened to
discontinue her studies if she kept any form of contact with the respondent.
17
Ghurey Lal v. State of UP on 30th Jul, 2008. Criminal Appeal No. 155 of 2006
Moreover in the case of Lata singh v.State of Uttar Pradesh18, the Supreme Court viewed the
right to marry as a component of right to life under Art 21 of Indian Constitution the court
observed that: “This is a free and democratic country, and once a person becomes a major he
or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of
such inter-caste marriage the maximum they can do is that they can cut off social relations
with the son or daughter, but they cannot give threats or commit or instigate acts of violence
and cannot harass the person who undergoes such intercaste marriage”.19 Since both Sakshi
and our client have the right to marry as per their choice. Sakshi’s parents cannot pressurize
Sakshi and assault our client when he went again with the proposal to marry Sakshi and
threaten Sakshi to stay away from him or else they would discontinue her studies.
18
AIR 2006 SC 2522
19
http://www.legalservicesindia.com/article/1001/right-to-marry.html, last visited on 12 Apr, 2019.
III. WHETHER THERE EXIST COMMON INTENTION BETWEEN AJAY AND
NILESH AS PER THE SECTION 34 OF THE IPC, 1860?
It is humbly submitted before the Hon’ble Session Court that there existed no common
intention between Ajay and Nilesh as per the Section 34 of the IPC, 1860.
SECTION 34 OF INDIAN PENAL CODE,1860
The Section 34 of the Indian Penal Code, 1860 states; “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.”20
This section is intended to meet cases in which it may be difficult to distinguish between the
acts of the individual members of a party or to prove what part was exactly taken by each of
them in furtherance of the common intention of all.21 The reason why all are deemed guilty in
such cases is that the presence of accomplices gives encouragement, support and protection to
the person actually committing an act.
The essential ingredients of Sec. 34 of IPC as stated and restated by law Courts in plethora
of cases are:
(i)
Common intention to commit a crime, and
(ii)
Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability22.
This provision is only a rule of evidence and does not create a substantive offence. It lays
down the principle of joint liability. To charge a person under this section, it must be shown
that he shared a common intention with another person or persons to commit a crime and
subsequently the crime was perpetrated.23The Apex Court held in a case24, that in the case of
Sec. 34 it is well established that a common intention presupposes prior concert. It requires a
pre-arranged 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 them all.
20
Section 34, Indiana Penal Code.
21
Mepa Dana, (1959) Bom LR 269.
22
Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.
23
Garib Singh v. State of Punjab, 1972 Cr LJ 1286.
24
Pandurang v. State of Hyderabad, AIR 1955 SC 216
To constitute common intention it is necessary that the intention of each one of the accused
was known to the rest of them and was shared by them. The test to decide if the intention of
one of them is common is to see whether the intention of one was known to the other and was
shared by that other. In drawing the inference the true rule of law which is to be applied is the
rule which requires that guilt is not to be inferred unless that is the only inference which
follows from the circumstances of the case and no other innocuous inference can be drawn.25
Each can individually cause a separate fatal blow. Yet, there may not exist a common
intention if there was no prior meeting of the mind. In such a case, each would be
individually liable for the injuries, he causes.26
3.1 ABSENCE OF COMMON INTENTION
It is humbly submitted that the accused Ajay is being dragged into the picture for no
justifiable cause and for no fault, participation or involvement of his in the alleged act in
question. It is submitted that neither the accused had any intention with Nilesh nor did he
act in concert with Nilesh to commit such act. ‘Common intention’ implies a preconcerted plan and acting in concert pursuant to the plan. Common intention comes into
being prior to the commission of the act in point of time, which need not be a long gap.27
There was no evidence that prior to the incident there was any common intention shared
by both the accused. The said intention did not develop at the time of the incident as well
and therefore, it was held that Sec. 34 of the Indian Penal Code cannot be resorted to hold
accused guilty of any crime.28
Therefore, it is humbly submitted that there was no common intention between Ajay and
Nilesh, in fact he did not have any knowledge of any such intention of Nilesh of throwing
acid on Sakshi as Ajay strictly said no for the use of acid to which Nilesh agreed. Hence,
in absence of common intention he must not be held liable under S.34 of the IPC.
3.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION
25
Oswal Danji v. State, (1960) 1 Guj LR 145.
26
Nandu & Dhaneshwar Naik v. The State, 1976 CriLJ 250.
27
Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653.
28
Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.).
In view of the phraseology of S.34 existence of common intention is not enough, the
criminal act impugned to attract S.34 must be committed in furtherance of common
intention. The section operates only when it is found that the criminal act done by an
individual is in furtherance of the common intention and not without it.29 The words ‘in
furtherance of the common intention of all’ in S.34, IPC do not require that in order that
the section may apply, all participants in the joint acts must either have common intention
of committing the same offence or the common intention of producing the same result by
their joint act be performed.
It is true that no concrete evidence is required to prove a common intention between two
people to commit an act. It is however key here to understand that such evidence must be
such that it does not leave any room for doubt against such an intention.30
Moreover, to sustain a charge under s. 34, active participation in the commission of the
criminal act is required which is clearly absent in the present case.
It is humbly submitted to honorable Court that the Accused-1 can’t be punished under the
principle of joint liability because he had no intention to bring about grievous hurt or even
knowledge of that such degree of hurt was a likely consequence. Similar situation was
observed in Lala Ram vs State of M.P.31
Hence, it is humbly submitted that there was no presence of common intention on the part
of Ajay in the act of throwing acid on the face of victim and hence the Accused-1, Ajay
can’t be charged under section 34 The counsel submits that since the aforementioned two
essential conditions have not been met with in the present. It is further submitted that the
accused must not be held liable under S.34 of IPC.
29
State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.
30
Dharam Pal v. State of Haryana, AIR 1978 SC 1492.
31
AIR 1994 SC 1452.
PRAYER
IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND
AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS
THAT THE HON’BLE SESSION COURT BE PLEASED:
1. To declare that Mr.Ajay is not guilty of the crime of causing grievous hurt by use of acid
and stalking.
2. To declare Mr. Ajay free from all the charges.
AND/OR
PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR
THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY.