Memorandum For The Prosecution
Memorandum For The Prosecution
(ONLINE), 2020-21
STATE OF XENON
(PROSECUTION)
V.
1. RAVI TOSI 2. MUKUL TOSI 3. ROHIT
(DEFENCE)
TABLE OF CONTENTS
2.1. MUKUL INSTIGATED RAVI TO DO THE ACT AND HENCE ARE PART OF THE CRIME ...... 7
2.3. THAT RAVI AND MUKUL HAD COMMON INTENTION TO CAUSE DEATH OF THE
DECEASED. ...................................................................................................................... 11
3.1. PUBLIC SERVANT ACTING IN GOOD FAITH AND UNDER THE COLOUR OF HIS OFFICE
...................................................................................................................................15
LIST OF ABBREVIATIONS
4. DW Defence Witness
5. Ed. Edition
7. IC Indian Cases
9. p. Page No.
18. v. Versus
INDEX OF AUTHORITIES
CASES
Baby John v. State, 1953 Cr LJ 1273 ; A.I.R. 1953 Trav-co 251 : 1952 Ker LT 737 .............. 7
Baxanto v. State of U.P. A.I.R. 1965 All 120 : (1965) J CrLJ 267 ......................................... 7
Birdhi Chand Jaipuria v. Darbari Jayaswal A.I.R. 1932 Pat 276 .......................................... 15
Cooverji, (1906) 9 Bom LR 159, Khadim Sheikh (1869) 4 Beng LR (ACr J) 7 ................... 10
Daya Nand v. State of Haryana, 2008 Cr LJ 2975 (SC): A.I.R. 2008 SC 1823 ....................... 2
Faguna Kanta v. The State of Assam, 1959 CrLJ 917 (SC) : A.I.R. 1959 SC673 ................... 5
Inder Singh v. State of Pepsu, A.I.R. 1955 SC 439: 1955 Cr LJ 1014. ................................... 3
Keshub Mahindra v. State of M.P., 1996 (3) Crimes 288 (SC) ............................................... 3
Lakhan v. State, 2008 Cr LJ 1194 (MP). Ganraj v. State, 2008 Cr LJ 253 (Raj). .................... 2
Ramabatar Agarwalla v. State, 1983 Cr LJ 122 (ori) : (1982) 54 Cut LT 345 ......................... 8
State of M.P. v.Mukesh (2006) 13 S.C.C. 197 : (2007) 2 S.C.C. (Cn)680 .............................. 9
Trilok Chand v. State of Delhi, A.I.R. 1977 SC 666: 1977 Cr LJ 254: (1975) 4 S.C.C. 761. .. 9
STATUTES
OTHER AUTHORITIES
BOOKS
CROSS & JONES, INTRODUCTION TO CRIMINAL LAW, 9TH EDN., P.389., PARA19.8 .................... 7
HALSBURY’S LAWS OF ENGLAND, 4TH ED. VOL. 11, PARA 42, P.34........................................... 6
GAUR, KD, CRIMINAL LAW: CASES AND MATERIALS, (6TH ED. 2009) .................................... 8
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 33RD ED. (2011) ............................... 9
RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE, 22ND ED. (2006) .................................. 8
SHARMA, B.R., FORENSIC SCIENCE IN CRIMINAL INVESTIGATION & TRIALS, (4TH ED. 2003) ... 8
II, MITRA, B.B., CODE OF CRIMINAL PROCEDURE, 1973 (20TH ED. 2006) ................................ 7
III, SARVARIA, SK, INDIAN PENAL CODE, (10TH ED. 2008) ..................................................... 9
STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with
Section 177:
Every offence shall ordinarily be inquired into and tried by a Court within whose local
‘209. Commitment of case to Court of Session when offence is triable exclusively by it-
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
b) subject to the provisions of this Code relating to bail, remand the accused to custody
c) send to that Court the record of the case and the documents and articles, if any, which
d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’
STATEMENT OF FACTS
1. In October 2019, Ravi arranged for a protest against the arrest of Kedar Tosi for sedition. The
2. Kedar Tosi, a 22-year-old fiery leader, had allegedly advised a youth from the Community to
kill policemen rather than commit suicide. Many students belonging to the Tosi community at
Ramaiyah College supported Ravi. Tanvi and Nidhi were also present in these protests.
Students belonging to other groups opposed the protest and there was a clash. Thus Police
3. After this Tanvi and Nidhi were looked down upon and were jeered. Ravi and Mukul
escorted them to the bus stop after they complained about two boys, Danish and John, who
teased them regularly. Later, a police Inspector named Mr. Anant Sharma accosts Ravi and
Mukul and threatens them. Then Ravi and Mukul dug up details of Mr. Anant Sharma and
found that he was close to the ruling party and had connections with the local goons.
4. Ravi discussed with his friend Rohit who is a local leader of the political party, to which the
Union is affiliated. Rohit got angry and in a fit of rage, said to end the life of the Inspector.
Ravi and Mukul also browsed some provisions regarding legal protection under self-defence.
5. On 7th April 2020 Danish and John came again and started teasing the girls near bus stop.
Ravi and Mukul started pelting stones at the bikers. The people standing at the bus stop
started running in panic. Suddenly the inspector comes from behind and slaps Ravi. Then the
inspector puts his hand on his belt showing the gun holster. Mukul shouted “he is going to
shoot you, quickly escape”. Ravi in a fit of rage runs and takes a rod that was lying down in
the auto garage next to the bus stop and throws it at the inspector. The inspector gets hit on
the head and falls awkwardly on the pavement and gets hit on the head again by the stump of
STATEMENT OF CHARGES
CHARGE- 1
Ravi Tosi has been charged under Sec. 186 and 304 r/w Sec. 34 of the Hindia Penal Code,
CHARGE- 2
Mukul Tosi has been charged under Sec. 186, 304 and 109 r/w Sec. 34 of the Hindia Penal
Code, 1860 for the crime of Culpable Homicide not amounting to Murder and Abetment.
CHARGE- 3
Ravi Tosi has been charged under Sec. 304 and 109 r/w Sec. 34 of the Hindia Penal Code,
1860 for the crime of Culpable Homicide not amounting Murder and Abetment.
SUMMARY OF ARGGUMENTS
ISSUE 1
It is humbly submitted before the Hon’ble court that the accused Ravi Tosi and co-accused
Mukul Tosi and Rohit had the common intention of killing the deceased, Anant Sharma who
was a public servant. When the accused got the opportunity he killed Anant Sharma with the
intention and knowledge of causing such bodily injury which would result in his death. He
used a metal rod to cause that injury which resulted in a brain haemorrhage to the deceased.
They all should be punishable for culpable homicide not amounting to murder under S.304 of
ISSUE 2
It is humbly submitted that both the co-accused instigated the accused to do the act by saying
various words to him and also intentionally aided him in doing so and thus committed the
someone to do the act under S.107 of IPC. The three accused concerted together and
conspired to kill Anant Sharma, instigated Ravi to do the act and also had the common
intention of killing him. Thus all the elements of abetment being satisfied all the accused are
ISSUE 3
It is humbly submitted that Ravi and Mukul obstructed Anant Sharma, a public servant while
he came to stop them from creating public nuisance and were pelting stones over the
complainant. Ravi even killed him while he was obstructing him. Mukul and Ravi used
physical violence and fought with Anant Sharma. He was discharging his lawful duty which
was justifiable by law by stopping the nuisance they were doing. Ravi and Mukul stopped
Anant Sharma from discharging his duty and obstructed him. They knew he was a public
servant, that fact was not concealed by them then too they obstructed him and thus they
ARGUMENTS ADVANCED
It is humbly submitted before the Hon’ble court that in the present case the accused is
charged with culpable homicide not amounting to murder under section 304 of IPC. Section
299 of IPC defines culpable homicide as “whoever causes death while doing an act with the
intention of causing death, or with the intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide. 1Under section 299 of the Indian Penal Code, homicide
becomes culpable when a human being terminates the life of another in blameworthy
manner.2The present matter lies under unlawful homicide as it is a causing of death by doing
an act with the intention and knowledge of causing such bodily injury as is likely to cause
death. This is one of the elements through which culpability is set to be established, without
these elements, an act though it may be by its nature criminal and may occasion death will
Intention as the ingredient of section 299 postulate, the existence of a positive mental attitude
and the mental condition is the special mens rea necessary for the offence.4 Every act is
1
HALSBURY’S LAWS OF ENGLAND , 4TH ED., VOL. II, PARA 1151, P. 613.
2
KENNY ON OUTLINES OF CRIMINAL LAW, 19TH ED., PARA 79, PP.131-132.
3
Rahee,(1866) Unrep Cr C 6.
4
Jayaraj v. State of T.N. A.I.R 1976 S.C. 1519: (1976) 2 S.C.C. 788: 1976 CrLJ 1186 following Anda v. State of
or thing out killing beforehand. A man accepts the natural consequences of his acts and
therefore in law is presumed to intend them. 5An act is set to cause death when death results
either from the act directly or results from some consequences necessarily or naturally
In the present case there were two injuries inflicted upon the head of the victim which
resulted in brain haemorrhage and hence in his death, one injury being inflicted by the
accused with the metal rod and the other by the victim falling at the stump of the tree. The
accused must be held liable because he intended and knew that his act of throwing the metal
rod on the head of the victim would amount to such bodily injury which would result in his
Words used in section 299 “that bodily injury sufficient in the ordinary course of nature to
cause death” indicate that death is most probable result of the injury. 8 In a case accused
stabbed deceased with a gupti without any intention to cause death was held that it could be
inferred that the accused was having knowledge that by causing injury by a gupti life of a
person may come to an end, hence it was considered as a case of culpable homicide . 9 Where
bodily injury sufficient to cause death is actually caused it is immaterial to go into the
question as to whether the accused had intention to cause death or knowledge that the act will
5
Nirbhai Singh, 1972 CrLJ 1474 (MP).
6
D. Yohannan v. State of Kerala, A.I.R 1958 Ker 207:1958 Cr LJ 1021.
7
Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 S.C.C. 454: A.I.R 2011 S.C. 1290.
8
Daya Nand v. State of Haryana, 2008 Cr LJ 2975 (S.C.): A.I.R 2008 S.C. 1823 and Radhey v. State of
cause death and thus it is regulated by the first part of section 304 of IPC. 10In the present case
the accused is charged under the S.304 of I.P.C because the act of the accused falls under
Bihar11, it was held that an accused is guilty and punished under S.304 when a death is
caused by the assailant under any of the circumstances mentioned in exception 2 of S.300.
Intention is purpose or design with which an act is done it is the fair knowledge of the act
coupled with the desire of it. An act is intentional so far as it exists in idea before it exists in
the fact; knowledge is awareness of the consequences of act.12 Accused when inflict incised
wounds with a spear on the head of the deceased, it was held that knowledge that the injury
he was inflicting was likely to cause death must be imputed to the accused and it is culpable
homicide, the offence committed falling under part 1 of Section 304 of IPC.13
In a case the accused inflicted injuries on vital part of the deceased which were found to be
sufficient in the ordinary course of nature to cause death, it was proved that he inflicted the
injuries with the knowledge that with these injuries the victim was likely to die, it was held
that this case would fall under section 299 and will be punished under section 304 part 1. 14It
10
PrabhatiLal v. State, 2008 CrLJ 859 (Raj).
11
1993 1 Crimes 984 (S.C.).
12
Keshub Mahindra v. State of M.P., 1996 (3) Crimes 288 (S.C.): (1996) 6 S.C.C. 129: 1996 S.C.C. (Cri) 1124.
13
Inder Singh v. State of Pepsu, A.I.R 1955 S.C. 439: 1955 Cr LJ 1014.
14
Subran v. State of Kerala, 1993 Cr LJ 1387 (S.C.): 1993 A.I.R S.C.W (1014): (1993) 3 S.C.C. 32: (1993) 2
Crimes 15.
was held in the case of Jaspal Singh v. State of Punjab15 the location of injury coupled with
the velocity of blow shown by the depth of injury shows that the intention was to cause death.
According to medical evidence it was this injury which proved fatal. When a person is
causing an injury on such a vital part the intention to kill can certainly be attributed to him. 16
The law books17, regards intention to the natural result of a man’s act and not to the condition
of his mind, so when a normal man does an act, he should be credited with the intention of
doing that which is inevitable consequences of his acts. In the instant case mens rea is
It is humbly submitted before this Hon’ble Court that the circumstantial evidence in the
instant matter shows that within all human probability, the act must have been done by the
accused. On April 7, 2020 Jatin (PW 6), the garage owner exactly don’t remember what
happened but he saw Ravi and his friend fighting with tall guy. They were struggling with
this guy. Ravi ran towards his shop and picked up a rod hit it on the ground almost taking his
feet away and threw it at the tall guy. The rod hit his head and he fell with a thud to the
ground and died instantly. He just didn’t move. This shows that Ravi had an intention to
harm police inspector, because he had the chance to escape from the place but in spite of
this, he went to garage and picked up the iron rod to hit the inspector.
15
Jaspal Singh v. State of Punjab, A.I.R 1986 S.C. 683: 1986 Cr LJ 488: (1986) I Crimes 435: (1986) 2 S.C.C.
100.
16
Chahat Khan v. State of Haryana A.I.R 1972 S.C. 2574: 1972 S.C.C. (Cri) 558: 1972 UJ (S.C.) 273.
17
R.RATANLAL AND K.T.DHIRAJLAL, (32ND ED,2010).
1.1.2 Forensics
The post mortem report becomes important in cases where the cause of death is to be
established and is a matter of controversy. Moreover, it is not possible for the Prosecution in
to explain each and every injury suffered by the witnesses. However, for the sake of
convenience, the Prosecution feels obliged to assist this Hon’ble Court in understanding the
When the skull and brain were examined it was observed that, a blunt force was used on
skull which is the result of an object travelling at a very high speed causing the damage.
When hit hard on the head the brain shifted inside the skull and knocked against the bony
surface of the skull. Due to this the victim suffered internal bleeding which caused
It is humbly submitted before the Hon’ble court that the co-accused Mukul and Ravi have
facilitated the commission of the death of Anant Sharma and thereby charged with the
offence of abetment under section 109 of Indian penal code as they have instigated,
intentionally aided and conspired for the commission of the act. The framers of Indian penal
code observe that the reasonable course, in our opinion is to consider speaking as an act and
to treat accused as guilty of voluntary culpable homicide if his speaking has caused death of
the deceased whether, his words operated circuitously or directly. In the present case Mukul
and Rohit voluntarily contributed to the culpable homicide of Anant Sharma by speaking the
word which instigated Ravi to do the act which resulted in the death of the deceased. All the
accused in this matter should be punished under section 304,109 r/w 34 of IPC for causing
the death of Anant Sharma, a public servant who was discharging his lawful duty when the
crime took place. In Corpus Juris Secundum18, the meaning of the word abet has been
to induce, or to assist another onto commit. In order to bring a person abetting the doing of a
thing, under any of the clauses enumerated under section 107, it is not only necessary to
prove that the person who has abetted has taken part in the steps of the transaction but also in
some way or the other, he has been connected with those step of the transaction which are
criminal. 19
Section 107 of the IPC, which contains the definition of abetment, has three clauses, and if
an act of a person falls within the purview of any of them, it would amount to abetment. A
person abets the doing of a word thing who intentionally aids, by any act or illegal omission,
the doing of that thing. For the purposes of the first two clauses of this section, it is
immaterial whether the person instigated commits the offence or not, or the persons
conspiring together actually carryout the object of the conspiracy. 20Abetment is constituted
by: (1) instigating a person to commit an offence; or (2) engaging in a conspiracy to commit
it; (3) intentionally aiding a person to commit it. If an accused is alleged to have been an
accomplice to the principal offence, the charge may alleged he aided, he abetted, or
18
See Corpus Juris Secundum, Vol. 1, p. 306.
19
Katar Singh v. State of Punjab (1994) 3 S.C.C. 569: 1994 Cr LJ 3139: (1994) 1 S.C.C. (Cri) 899.
20
Faguna Kanta v. The State of Assam, 1959 Cr LJ 917 (S.C.) : A.I.R 1959 S.C.673.
21
Re Smith, (1858) 3 H&N 277 : Ferguson v. Weaving, (1951) 1 KB 814 : (1951) 1 ALL ER 421.
2.1. MUKUL INSTIGATED RAVI TO DO THE ACT AND HENCE ARE PART OF
THE CRIME
It is well known that the act of abetment may take place in one of these three ways; (1)
instigation, (2) conspiracy, (3) intentional aid. 22 Instigation must have reference to the thing
that was done. Abetment implies a certain degree of activity in the abettor. An accused can be
charged with abetment not only if he instigates any person to do a criminal act or
intentionally aids by any act or illegal omission for the doing of the thing or engages
somebody with a purpose to do illegal act.23 These things are essential ingredients of section
107 and are all found in the present case. Abetment may consist of passive assistance. 24In a
case the presence of accused either with bhala or with spear on the scene of occurrence of
marpit and then participation in the marpit was proved even if they did not actually apply
their weapons, they were held to be vicariously responsible for the injuries caused to the
complaint party. 25
Analysing the law, Cross and Jones puts in that normally, an act of assistance or
encouragement is required. Thus, mere abstention from preventing an offence generally is not
enough but if A has a right control over Band deliberately fails to prevent B from committing
encouragement to be to commit the offence 26. In the present Mukul being present on the
crime scene did not prevent Ravi from hitting the police inspector with the metal rod and thus
has constituted abetment. The aforesaid exposition of law postulates the existence of one who
22
Malan v. State of Maharashtra A.I.R 1960 Bom 393 : 1960 Cr LJ 1189 : ILR 1958 Bom 700.
23
BanwariLal v. State of Haryana 1979 Cl R (P&H) 233 (235).
24
Tuck v. Robson, (1970) 1 All ER 1171.
25
Baxanto v. State of U.P. A.I.R 1965 All 120 : (1965) J CrLJ 267.
26
CROSS & JONES, INTRODUCTION TO CRIMINAL LAW, 9TH EDN., P.389., PARA 19.8.
did perpetrate the offence as laid down by Cross and Jones normally it is clear who is the
perpetrator; he is the one with relevant mens rea, for example the one who fires the fatal shot
in murder. Two or more people may also be joint perpetrators where each with the relevant
mens rea does distinct acts which constitute a sufficient act for the actus reas offence. The
offence of abetment by instigation depends upon the intention of the person who abets and
not upon the act which is done by the person who has abetted.27
A person is said to “instigate” another to an act, when he actively suggests of stimulates him
to the act by any means of language, direct or indirect, whether it takes the form of express,
direct words should be used to indicate what exactly should be done by the persons to whom
directions are given.29 Instigation is to “goad”, urge forward, provoke, incite, or encourage
doing an “act”. To satisfy the requirements of instigation, though it is not necessary that
actual words must be used to that effect or what constitutes “instigation” must necessarily and
consequences must be capable of being spelt out.30 Instigate means the active role played by a
person with a view to stimulate another person to do the thing in order to hold a person guilty
27
State of Punjab v. Iqbal Singh, A.I.R 1991 S.C. 1532 Surender v. State of Haryana (2006) 12 S.C.C. 375
KishoriLalv. State of M.P., A.I.R 2007 S.C. 2457 and Sonti Rama Krishna v. Sonti Shanti Sree, A.I.R 2009 S.C.
923.
28
Amiruddin, (1922) 24 Bom LR 534, 542.
29
Baby John v. State, 1953 CrLJ 1273 ; A.I.R 1953 Trav-co 251 : 1952 Ker LT 737.
30
ParimalChaterjee,(1932) 60 Cal 327.
of abetting, it must be established that he had intentionally done something which amounted
commission of the act itself. Advice amounts to the instigation only if it was meant actively
to suggest or stimulate the commission of an offence.32 In a case while one person was beaten
by another, the accused, who was standing by, expressed his approval to the conduct of the
assailant and the victim would be given sound beating. It was found that blows were inflicted
after the accused’s remarks. It was held that the accused stimulated the commission of the
offence and, therefore, was guilty for abetment. Instigation necessarily connotes some active
A person is said to instigate another to an act, when he actively suggests or stimulates him to
the act by any means or language, direct or indirect. The offence is complete as soon as the
abettor has incited another to commit a crime, whether the latter consents or not or whether,
having consented, he commits the crime or not. It depends upon the intention of the person
who abets and not upon the act which is actually done by the person whom he abets. 34 Where,
of several persons constituting an unlawful assembly, some only were armed with sticks and
A, one of them was not so armed but picked up a stick and used it, B who gave a general
order to beat, was held guilty of abetting the assault made by them. 35 It is not necessary that
the abettor should concert the offence with the person who commits it. It is sufficient if he
31
RajibNeog v. State of Assam, 2011 CrLJ 399 (Gau).
32
RaghunathDass, (1920) 5 PLJ 129.
33
Nazir Ahmad v. Emperor, A.I.R 1927 All 730 : 28 CrLJ 313.
34
Ramabatar Agarwalla v. State, 1983 CrLJ 122 (ori) : (1982) 54 Cut LT 345.
35
Queen v. Rasookoollah, (1869) 12 WR (Cr) 51.
engages in the conspiracy in the pursuance of which the offence is committed. 36 Where
parties concert together and have a common object, the act of fun of the parties, done in
furtherance of the common object and in pursuance of the concerted plan, is the act of all. 37
would constitute abetment.38 A person abets while aiding, when by act done either prior to, or
at the time the commission of the act, he intends to facilities, and does in fact facilitate the
commission therefore. Intentional aiding of the offence in covered by the third clause
mentioned in section107 Indian penal code. 39 Intention to aid the commission of offence is
the gist of offence of abetment by aid. 40 A person abets by aiding, when by the commission
of an act, he intends to facilitate and thus facilitate the commission thereof. 41 The intention to
aid the commission of crime is gist of offence by of abetment by aid. In order to constitute
abetment, the abettor must be shown to have “intentionally” aided to commission of the
crime. Every abetment must, of course, precede the commission of the offence committed.
There is, however a difference between an abetment which is done at the time of principal
offence is committed or, so to say, on the spur of the moment and one, that is done prior to,
36
Expln. 5 to Section 108; Kali Munda (1901) 28 Cal 797.
37
The Queen v. Ameer Khan , (1871) 17 WR (Cr) 15.
38
State of M.P. v. Mukesh (2006) 13 S.C.C. 197 : (2007) 2 S.C.C. (Cn)680.
39
Om Prakash v. State of Haryana 2015 CrLJ 586: (2015) 2 S.C.C. 84.
40
Trilok Chand v. State of Delhi, A.I.R 1977 S.C. 666: 1977 Cr LJ 254: (1975) 4 S.C.C. 761.
41
Faguna Kanta Nath v. State of Assam, A.I.R 1959 S.C. 673: 1959 CrLJ 917.
2.3. THAT RAVI AND MUKUL HAD COMMON INTENTION TO CAUSE DEATH
OF THE DECEASED
The criminal act mentioned in Indian penal code 186042is the result of the concerted action of
more than one person. Where the said result was reached in furtherance of the common
intention, each person is liable for the result as if he has done it himself. 43It is enough if it is
shown that they shared a common intention to commit the offence and in furtherance thereof,
each one played his assigned role by doing separate acts, similar or diverse44. For applying
the said provision, it is not necessary to show some overt act on the part of the accused for the
provision is intended to meet a case in which it may be difficult to distinguish between acts of
individual members of a part who act in furtherance of the common intention of all or to
prove exactly what part was taken by each of them45 where it is established that the criminal
act has been done by one of the accused persons in furtherance of the common intention, a
liability may be imposed on anyone of the persons in the same manner as if the acts were
done by him alone46 and each person will be alleged to have had committed the entire
act47.The common intention must be to commit the particular crime although the actual crime
may be committed by any one of those sharing the common intention and acting in
42
Indian Penal Code 1860 S.34.
43
Shankarlal Kacharabhai v. State of Gujarat A.I.R 1965 S.C. 1260.
44
Nandu Rastogi v. State of Bihar (2002) 8 S.C.C. 9.
45
Hari Ram v. State of Uttar Pradesh (2004) 8 S.C.C. 146.
46
State of Uttar Pradesh v. Iftikhar Khan A.I.R 1973 S.C. 863.
47
Matiullah Sheikh v. State of West Bengal A.I.R 1965 S.C. 132, Babu Ram v State of Uttar Pradesh A.I.R 2002
S.C.2815.
48
Hardev Singh v. State of Punjab A.I.R 1975 S.C. 179.
Common intention is a state of mind of an accused which may be inferred objectively from
his conduct displayed in the course of the commission of the crime as also prior and
must be proved by an objective test. It is only then that one accused may be made vicariously
liable for the acts and deeds of the other co-accused.49 Direct proof for common intention will
generally be difficult to obtain. 50 Therefore, common intention may only be inferred from the
proven facts of the case and the proven circumstances for which the prosecution has to
establish by evidence, whether direct or circumstantial, that there was a plan or meeting of
minds of all the accused to commit the offence for which they are charged with the aid of the
provision of the Indian penal code 1860, be it prearranged or on the spur of the moment, but
The question of a common intention is a matter of fact in each case and has to be proved as a
necessary inference52from the facts53and circumstances of the case, acts and conduct of
parties54including conduct subsequent to the incident 55, other evidence given by prosecution
witnesses, court witness, defence witness disclosing the existence of named or unnamed
persons other than those charged or deposed to by prosecution witnesses 56, nature of the
weapons used, manner of injuries inflicted or any other incriminating facts.57 The inference
49
Rishideo Pande v. State of Uttar Pradesh (1955) Cr LJ 873.
50
State of Uttar Pradesh v. Iftikhar Khan A.I.R 1973 S.C. 863.
51
Hari Ram v. State of Uttar Pradesh (2004) 8 S.C.C. 146.
52
Mohan Singh v. State of Punjab A.I.R 1963 S.C. 174, see also Mahbub Shah v Emperor A.I.R 1945 PC 118.
53
Baleshwar Rai v. State of Bihar (1963) 2 S.C.R 433.
54
BN Srikantaiah v. State of Mysore A.I.R 1958 S.C. 672.
55
Hari Om v. State of Uttar Pradesh (1993) Supp 2 S.C.C. 1.
56
Krishna Govind Patil v. State of Maharashtra A.I.R 1963 S.C. 1413.
57
RamashishYadav v. State of Bihar A.I.R 1999 S.C. 3830.
may be gathered from the manner in which the accused arrived at the scene and mounted the
attack, the determination and concert with which the attack was made. The crucial test is that
In the present case there was proper premeditation done for the purpose of constituting the
death of the police inspector; all the accused met and shared the intention to kill the deceased,
they searched for him on the internet as well as for the provisions regarding self-defence so
that they would know how to get away with the crime. Common intention must be anterior to
the commission of the offence 58 and necessarily implies a prearranged plan. 59 To constitute
common intention, it is necessary that the intention of each of the accused is known to the
In cases involving murder, one must look for a common intention, that is to say, some prior
concert and what that common intention is. It must next be seen whether the accused
possessed the knowledge that the injuries they were intending to cause were sufficient in the
ordinary course of nature to cause death, and if the circumstances are established and death is
caused by the intended injuries which are also sufficient in the ordinary course of nature to
It is humbly submitted before the Hon’ble court that the accused and the co-accused in the
present matter obstructed the public servant from discharging his duties and thus are
58
Joginder Singh v State of Haryana A.I.R 1994 S.C. 461.
59
Pandurang v. State of Hyderabad A.I.R 1955 S.C. 216.
60
Ankeri v. State of Rajasthan A.I.R 1994 S.C. 842, Shangara v. State of Punjab (1994) Cr LJ 1098 (S.C.).
61
Anda v. State of Rajasthan A.I.R 1966 S.C. 148, Anda v. State of Rajasthan (1966) Cr LJ 171.
punishable under s.186 of IPC. This is a general section and provides for punishment for the
functions. 62 Ingredients of the offence under this section are: (a) the obstruction to the public
servant was done by the accused voluntarily, and (b) The obstruction was done in the
discharge of the public functions. The use of the word “voluntarily” indicates that the
legislature contemplated the commission of some overt act of obstruction and did not intend
to render penal more passive conduct,63 In other words “obstruction” denotes some overt act
in the nature of violence or show of violence. 64 It suffices if there is either a show of force or
a threat of force, or preventing the execution of any act by a public servant. 65It must be
shown that the obstruction or resistance was offered to a public servant in the discharge of his
duties or public functions as authorized by law. 66The accused in Santosh Kumar Jain v. State,
voluntarily obstructed a public servant at a time when he was acting in the course of his
official duty, but it was contended that the officers had exceeded his official duty and that the
act which was obstructed was not among his authorized functions and. However, on evidence
in the case it was held that the accused had in fact obstructed the officer in carrying out the
legal functions attached to his office and was accordingly convicted under this section.
62
Santosh Kumar Jain v. State, A.I.R 1951 S.C. 201.
63
Q.E. v. Sommanna, 1827 ILR 15 Mdr. 221.
64
Phudki v. Stae of Uttar Pradesh, A.I.R 1955 All 104.
65
Babulal, 1956 Bom LR 1021.
66
Odwil Devaki Amma v. State of Kerala, 1982 Cr LJ 11 Ker (NOC).
3.1. PUBLIC SERVANT ACTING IN GOOD FAITH AND UNDER THE COLOUR
OF HIS OFFICE
If the public servant is acting in good faith under colour of his office there is no right of
private defence against such act.67 Section 186 contemplates obstruction of a public servant in
the discharge of his public duty.68 Section 186 contemplates obstruction of a public servant in
the discharge of his public duty. Every police-officer shall, for all purposes in this act
contained, be considered to be always on duty, and may at any time be employed as a police-
It shall be the duty of every police-officer promptly to obey and execute all orders and to
communicate intelligence affecting the public peace; to prevent the commission of offences
and public nuisances; to detect and bring offenders to justice and to apprehend all persons
whom he is legally authorized to apprehend; and it shall be lawful for every police officer, for
any of the purposes mentioned in this section, to stop a person by creating public nuisance 70
which was exactly what police inspector Anant Sharma was doing at the time when the
Whoever voluntarily obstructs any public servant in the discharge of his public functions
shall be punished with imprisonment of either description for a term which may extend to
three months, or with fine which may extend to Rs. 500, or with both.71A person seriously
67
Poomalai Udayan, (1898) 21 Mad 296; Pukot Kotu, (1896) 19 Mad 349.
68
Bhaga Mana, (1927) 30 Bom LR 1124.
69
The Police Act, 1861.
70
State of Karnataka v. Jinappa Payappa Kudachi (1994) Supp 1 S.C.C. 178, (1994) S.C.C. (Cr) 330; Mubbi v.
obstructing, insulting and jostling a process-server in the execution of his duty is guilty of the
offence under the above stated provision.72 Where public officer acts properly in carrying out
orders which are not obviously or patently illegal or upon the face of them not open to
objection, any resistance to the same is an offence under this provision. 73 The prosecution
must show that a public servant was discharging public duties imposed upon him by law
while prosecuting a person for the obstruction of a public servant in the discharge of his
public functions.74 To constitute “obstruction”, it is not necessary that there must be actual
criminal force. Show or threat of force or any act preventing execution of the process of civil
court is sufficient.75 It is not open to a party to obstruct a public servant in the discharge of his
duties even if the public servant has been told by the party that he must not act as such. 76
72
Jatto v. Emperor A.I.R 1915 Lah 456.
73
Birdhi Chand Jaipuria v. Darbari Jayaswal A.I.R 1932 Pat 276.
74
Jamnadas Tharoomal v. Emperor A.I.R 1940 Sind 42.
75
State v. B G Misar A.I.R 1957 Bom 10.
76
S.Ramlah In Re A.I.R 1951 Mad 773.
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
I. Convict, Ravi Tosi for Culpable Homicide not amounting to Murder of a police
officer on duty charged under Section 186, 304 read with Section 34 of the Indian
II. Convict, Mukul Tosi for Culpable Homicide not amounting to Murder of a police
officer on duty charged under Section186, 109, 304 read with Section 34 of the
III. Convict, Rohit for Culpable Homicide not amounting to Murder of a police officer
on duty charged under Section109, 304 read with Section 34 of the Indian Penal
Code, 1860.
AND/OR
And pass any other order, direction or relief that the court may deem fit in the best
For this act of kindness, the petitioners shall duty bound forever pray.
Place:
S/d __________
PUBLIC PROSECUTOR