7th INTRA MOOT COURT COMPETITION

7th INTRA MOOT COURT COMPETITION, 2002

BEFORE THE
HON’BLE HIGH COURT OF ALLAHABAD
THE APPEAL FILED UNDER SECTION 374 OF THE CRIMINAL PROCEDURE
CODE, 1973
IN CRIMINAL APPEAL NO:……/2011

IN THE MATTER OF

MANOJ AND OTHERS……………………………………………….……...APPEALLANT

VERSUS

STATE OF UTTAR PRADESH……….……………………………………RESPONDENT

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE HIGH COURT OF

ALLAHABAD

MEMORIAL ON THE BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

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Table of Contents

LIST OF ABBRIVATION ....................................................................................... II

INDEX OF AUTHORITY ...................................................................................... IV
STATEMENT OF JURISDICTION:- ......................................................................V
STATEMENT OF FACT .........................................................................................V
STATEMENT OF ISSUES ................................................................................... VII
ARGUMENT ADVANCED .....................................................................................1
PRAYER ....................................................................................................................9

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LIST OF ABBRIVATION

Sec : sections
AIR : All India Reporter
I.P.C. : Indian Penal Code
Cr.P.C. : Code of Criminal Procedure

IEA : Indian Evidence Act

Art. : Article
Hon’ble : Honorable
Pg. : page
SC : Supreme Court
SCC : Supreme Court cases
HC : High Court
U/S : Under section
yrs. : Years
& : And

v/vs. : Versus
R/W : read with
Ors. : others
Anr. : Another
Edn. : Edition
PW : Prosecution Witness
SCR : Supreme Court Reporter
UOI : Union of India
WR : Weekly Reporter
AIR ALL : All India Reporter Allahabad
AIR Cr. : All India Reporter Criminal Cases
AC : Appeal Cases
ALJ : Allahabad Law Journals

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ALJR : Allahabad Law Journals Reporter

IC : Indian Case
OR’s : Others
SUPP : Supplementary
C.B.I : Central Bureau Of Investigation

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INDEX OF AUTHORITY

Statute:-

 THE INDIAN PENAL CODE, 1860

 CODE OF CRIMINAL PROCEDURE, 1973

 INDIAN EVIDENCE ACT, 1872

CASES:-

 UDAIRVIR SINGH Vs STATE OF U.P. 2020 ALLAHABAD HC

 PANDURANG, TUKIA AND BHILLAI Vs THE STATE OF HYDERABAD, AIR

1955

 MAHBOOB SHAH Vs EMPEROR, 1945 (47) BOMLR 1941

 Y.VENKAIAH Vs STATE OF A.P. AIR 2009

 STATE OF U.P. Vs ATUL SINGH AIR 2009

 STATE OF M.P. Vs DESHRAJ 2005 Cr.LJ 1415

 ANIL PHAKHAN Vs STATE OF ASSAM AIR 1993 SC 1462

 D. SAILU Vs STAE OF A.P. AIR 2008 SC 505 at Pg. 507

 DHARAMVEER Vs STATE OF U.P. AIR 2010 SC 1378 at Pg. 1383

 CBI HYDERABAD Vs NARAYAN RAO 2012 Cr.LJ 4610

 HIRALAL HARILAL BHAWATI Vs CBI NEW DELHI 1979 Cr.LJ 95

 DALMIA R.K. Vs DELHI ADMINISTRATION AIR 1962 SC 1821

 RAM NARAIN Vs STATE OF RAJASTHAN AIR 1973 SC1188

 YOGESH ALILAS….JAGDISH Vs STATE OF MAHARASHTRA 2008 Cr.LJ

3872

BOOKS REFFERED:-

 I.P.C., S.N.MISHRA

 THE LAW OF EVIDENCE, BATUK LAL

 PRINCIPLES OF THE LAW OF EVIDENCE, Dr. AVTAR SINGH

 CRIMINAL PROCEDURE, R.V. KELKAR

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WEBSITES REFFERRED:-

 www.indiankanoon.com
 www.casemine.com
 www.scconline.com
 www.livelaw.com

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STATEMENT OF JURISDICTION:-

The Appellant humbly approaches the Hon’ble High court under S374(2) of the code of criminal
procedure 1973 which reads as follows ;

S.374. Appeal from conviction:-

1. Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the supreme court

2. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven years
has been passed against him or any other person convicted at the same trial may appeal to the
High Court.

3) Save as otherwise provided in sub-section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court of Session

The respondents humbly submit to the jurisdiction of this hon’ble high court .

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 STATEMENT OF FACT
1.Mr.Heeralal was a local loader of Indian Political Party(IPP). He used to live with his family in
village Derwa. District Pratapgarh he had great influence over the residents. Due to his political
influence he had many admires and enemies.

2.Mr.Rajesh was another influential political leader belonging Bhartiya Political Party (BBP) he
was direct rival of Mr. Heera.He was determined to defect Mr.HEERA in the upcoming general
elections.

3.On 03/12/2005 at about 5:30P.M. While returning form his office via Derwa Bazar. He was
stopped by few people.They started abusing him and 2 people brought out their guns and fired at
Mr. Heera. The crowd gathered immediately and he was referred to S.R.N. Hospital Praygarag.
The doctors at S.R.N. hospital declared him brought dead at 10:30 P.M.

4.Post-mortem examination of deceased was conducted on 04/12/2005.

In post mortem report, the following injuries were reported-

i. Entry wound 0.5cm × 0.5cm on Right side of the chest below the shoulder.
ii. Exit wound 0.5cm × 0.5cm on Back side of the chest, below the right shoulder.
iii. Exit wound 0.5cm × 0.5cm on left side of the stomach.

5. On the basis of these facts FIR was registered against unknown person by Yogedra on
04/12/2005 at 04:00 P.M.

6. Statement of Tarun Kumar Gudiya Devi and Yogendra Kumar was recorded they were all
supporting prosecution story.

7. The statement of witness Mr.Saroj Kumar and Mr. Babul was also recorded 09/12/2005.

8. On 07/12/2005 Manoj was arrested by police. In his statement before police he stated that I
work for Mr. Rajesh called me and directed me to do the needful to see that Mr. Heera is
eliminated from his way Mr.Rajesh also paid me 10 Lakh Rs. for the same.
I contacted Shamshad another party worker and engaged other party worker.
Ismail purchase 2 country made pistol I knew that on 03/12/2005.IPP had a party meeting at
party office.

9.On statement of Mr.Manoj, Shamshad,Ismail,Rajan,Guddu,Saleem,Rinku are Mr. Rajesh were

arrested for offence U/S 302,323,504,506,120B r/w Sec 34 IPC.
On 20/12/2005 the police recovered 2 country made pistol from the hose of Mr.Rajesh on
pointing of all of the accused person police also collected CCTV footage ofd Mr.Rajesh house
and C.D.R. of Mr. Rajsh personal mobile number was also collect, however they were not made
part of chargesheet.

10.On 20/02/2006 the police filed chargesheet against Mr.Manoj, Shamshad, Ismail, Rajan,
Guddu, Saleem,Rinku and Mr.Rajesh U/S 302,323,504,506,120B r/w 34 IPC.

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11.During course of trial, following witness were produced-
PW-1- Mr. Yogendra Kumar
PW-2- Mr. Tarun Kumar
PW-3- Mrs. Gudiya Devi
PW-4- Dr. Gaurav Srivastava (Doctor who had conducted Post mortem examination)
PW-5- Mr. Kshitij Chauhan (Investigating Officer)
12.All the accused person in their statement u/s 313 Cr.P.C. stated that they were innocent and
were being falsely implicated due to village partybandi. Infact according to them, Mr. Heera Lal
had been killed by some other persons, but on the dictated of IPP party president, they were
being falsely implicated.

13.After hearing the argument of DGC (criminal) and counsels for accused persons.The trial
court on 10/12/2010 convicted Manoj, Ismail, Shamshad,Rajan u/s 302 r/w sec34 IPC and Mr,
Rajesh u/s 302 r/w Sec 120B IPC and awarded them imprisonment for life. However Guddu,
Saleem and Rinku were acquitted from all charge due to lack of evidences against them.

14.All of the accused persons have approached the Hon’ble HC of judicature at Allahabad sitting
at Lucknow by filling a single criminal appeal against conviction.

15.All of the appeal were admitted vide order dated 09/01/201 and LCR was summoned. Bail
application of all the accused person were dismissed.

16.The Hon’ble HC has listed the appeal for final hearing

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 STATEMENT OF ISSUES

1. WHETHER THE APPEAL AGAINST CONDICTION FILED BY THE

APPELLANTS ACCUSED IS MAINTAINABLE OR NOT?

2. WHEATHER THE ACCUSED ARE GUILTY UNDER SECTION 302/34, IPC

WHICH ARE ALLEGED TO HAVE BEEN COMMITTED BY THE ACCUSED
PERSONS?

3. WHEATHER THE ACCUSED ARE GUILTY UNDER SECTION 302/120B, IPC

WHICH IS ALLEGED TO HAVE COMMITTED BY THE ACCUSED PERSON?

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ARGUMENT ADVANCED

1.WHETHER THE APPEAL AGAINST CONVICTION FILED BY THE APPELLANTS –

ACCUSED IS MAINTAINABLE OR NOT?

It is humbly submitted that the appeal filed by the appellants—accused to Hon’ble HC is not
maintainable.

Considering the evidence on record and testimonies of PWs in which one is an eye-witness it can
clearly be stated that all the accused persons together committed the brutal murder of Mr. Heera the
accused.

PW2 who was also the son of the deceased and an eye-witness to the brutal murder of his father is
clearly mentioned in his examination-in-chief that his father was shot by the two-gun shots fired by
two of the accused in the presence of another accused person.

The testimonies of PW1 PW3 PW4 PW5 and the postmortem report fully corroborated the prosecution
story.

PWs were also subjected to rambling and searching cross-examination but nothing material to the case
came out to dislodge their testimonies which were in full conformity with the medical evidence

The minor factual discrepancies in the testimonies of the witness pointed out by the appellant are of no
relevance to the case as in the case of UDAIVIR SINGH Vs STATE OF UP1 it was held that the
discrepancies of this nature which do not go to the root of the matter do not obliterate the otherwise
acceptable evidence well settled that minor variations should not be given under importance while
assessing the reliability of oral testimony and the consistency of the prosecution story.

Besides that, Mr. Rajesh who is one of the co-accused was also a direct political rival of the deceased
and was determined to defeat the deceased in the upcoming general election which clearly shows that
Mr. Rajesh had a motive for the commission of the offense,

Hence it is humbly pleaded that the appeal filed by the appellant is not based on cogent ground and is
not maintainable in the Hon’ble HC.

1
2020 Allahabad HC

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1.1 STAGES OF CRIME;

The stage of crime includes 4 stages:
1. Intention
2. Preparation
3. Attempt
4. Accomplishment

In the instant case, the accused person only passing through the about three stages accomplished
the task of commission of murder of the deceased as according to the fact of the case Mr. Rajesh
and Mr. Heera were political rivals and Mr. Rajesh was determined to defeat Mr. Heera in the
upcoming election at any cost this shows the intention of accused person’s who belongs to BPP.
Coming to the second stage they purchased 2 country made pistol and carried them to the
marketplace to which the sole purpose was to commit the murder of the deceased.
Sec 8 IEA stipulates that any fact is relevant which shows or constitutes motive or preparation for
any fact in an issue or relevant fact.
And here they finally accomplished the task when Manoj and Ismail fired the 2gun shots at the
deceased.
The mere irregularities in the investigation and minor discrepancies in the testimony of the witness
which don’t even affect the merits of the case do not vague the fact that on 03/12/2005 the 2 sons
lost their father the wife lost his husband.
The accused person who had the courage of firing the gunshots at a public place and committing
the murder of the deceased in front of his son must not be allowed to get away with the punishment
of the crime they committed and set a wrong example to others that can motivate others to commit
a similar crime without the sanction of law.
By filing an appeal, they are just trying to engage the court in vexatious litigation and tamper the
evidence.

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2. WHETHER THE ACCUSED ARE THE GUILTY UNDER SEC. 302/34 IPC, WHICH ARE
ALLEGED TO HAVE BEEN COMMITTED BY THE ACCUSED PERSON?

It is humbly submitted before the Hon’ble HC that the accused persons are guilty of offence u/s 302/34
of IPC,1860.

2.1 Section 34. Acts done by several persons in furtherance of common intention,—When a
criminal act is done by several persons in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him alone.

Ingredients of Sec 34 - To attract the application of sec 34 the following 3 conditions exist;

i. A criminal act must be done by more than one person,

ii. There must be a common intention of all to commit that criminal act,
iii. There must be the participation of all in the commission of offence in furtherance of that
common intention.

2.1.1. Criminal act must be done by more than one person -

To attract Sec 34 it is essential that there must be the commission of a criminal act by more than one
person the acts committed by different confederates in a criminal action may be different but it all
must be in one way or the other participants and engage in a criminal act.

From the fact of instant case, it is evidently clear that 7 accused person all together committed the
planned murder of Mr. Heera.

2.1.2. Common intention -

The common intention implies a pre-arranged plan, prior meeting of minds, and prior consultation
in between all the person constituting the group. Common intention means a desire to commit a
criminal act without any contemplation of consequence.

The essence of join liability U/S. 34 lies in the existence of common intention to do a criminal act in
furtherance of common object of all the members of the group.

PADURANG,TUKIA AND BHILLIA Vs THE STATE OF HYDERABAD2 In this case it was held
that the word common intention implies prior meeting of minds and participations of all the members
of group in execution of that plan

In the present case from the investigation conducted and testimonies of the PWS it can we inferred
that all the co-accused person as they all were present at the crime scene and when gun shots were
fired two of 5the accused person Manoj and Ismail all the accused person were standing there and
none of them made any attempt to stop them and after the gun were fired they all went away together
brandishing their gun.
2
AIR 1955,216

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2.1.3.Participation in the criminal act, in furtherance of common intention-

The participation of criminal act of a group is a condition precedent in order to fix join liability and
there must be some overt act indicative of common intention to commit an offence in order to sustain a
conviction with the aid of Sec 34.

In instant case there are sufficient evidence to decipher common intention an overt act in furtherance
of common intention was also committed as to of them were carrying to country-made pistol with the
sole purpose to shot Mr. Heera dead. In the case of MAHBOOB SHAH Vs EMPEROR3 The essence
of Sec 34 is the simultaneous consensus of the mind of persons participating in the criminal action to
bring about a particular result such consensus can be developed on the spot and thereby intended by all
those present.

In the case of Y.VENKAIAH Vs STATE OF A.P4. It was held by the SC that even if one of the co-
accused was acquitted that doesn’t by itself absolve other co-accused of their conjoint liability of
crime. The law is that in spite of acquittal of one co-accused it is open to court to convict the other
accused on the basis of join liability.

In the case of STATE OF U.P Vs ATUL SINGH5 SC held that common intention U/S. 34 does not
say common intention of all”, nor does it say,” intention common to all. For applying Sec 34 it is not
necessary to show some overt act on the part of accused.

Sec.34 has been enacted on the principle of joint liability in doing of a criminal act. It is intended to
meet a case in which it may be difficult to distinguish between acts of individual members of a party
who act in furtherance of common intention of all or to prove exactly what part was taken by each of
them .

There also exist sufficient evidence to decipher common intention and an overt act to furtherance of
common intention was also committed as two of them were carrying 2 country made pistol with the
sole purpose to shot Mr. Heera dead.

The testimony of an eye-witness who is also the son of the deceased is fully credible and is
corroborated by the testimony of other PWs and the medical evidence according to which cause of
death of Mr.Heera was shock and hemorrhage due to ante mortem gunshot injuries.

In the case of STATE OF MP Vs DESRAJ6 Direct proof of common intention is seldom available and
therefore such intention can only be inferred from the circumstances appearing from the proved facts
of the cases and the conduct of the accused persons

3
(1945) 47 BOMLR 1941
4
AIR 2009
5
AIR 2009
6
2005 Cr.LJ 1415(SC)

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2.2 Credibility of an eye-witness-

The testimony of the witness can’t be rejected merely on the ground of being inimical to the accused
person.

In the case of ANIL PHUKAN Vs STATE OF ASSAM7, It was observed by SC that a conviction can
be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to
the contrary provided the witness passes the test of reliability. So long as the single eye-witness. The
court has no difficulty in basing the conviction on his testimony alone.

In the case of D. SAILU Vs STATE OF A.P8. SC held that the relationship of the witness doesn’t a
fact is credibility.

In the case of DHARAMVEER Vs STATE OF U.P9. Enmity with the accused can’t be the only
ground to reject the testimony of the eye-witness being related to the deceased when the evidence of
the eye-witness with minor contradiction here and there has withstood the test of cross-examination.

In the case of UDAIVIR SINGH Vs STATE OF UP10, it was held that there is no reason as to why a
close relative will implicate and depose falsely against somebody securing the real culprit to be
punished ..

Thus the whole prosecution story based on circumstances appearing from the proven facts of the case
and the conduct of the accused person is fully reliable and trustworthy.

Hence it is humbly pleaded that the accused are guilty of an offense U/S 302/34 of IPC.

7
AIR 1993 SC 1462
8
AIR 2008 SC 505 at Pg. 507
9
AIR 2010 SC1378 at Pg. 1383
10
2021 Allahabad HC

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3. WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 302/120B IPC WHICH IS
ALLEGED TO HAVE BEEN COMMITTED BY THE ACCUSED PERSON?
It is humbly stated before the Hon’ble HC that the accused person is guilty of offense u/s 302/120B of
IPC.
Sec 120B of IPC defines criminal conspiracy.
The essence of the offense of conspiracy is the fact of combination by agreement to do an illegal act or
an act though not illegal by illegal means.
The conspiracy arises and the offense is committed as soon as the agreement is made.

The accused are guilty of criminal conspiracy:-

Sec 120A of IPC 1860 defines criminal conspiracy it state that when to or more person:
A. Agree to do or cause to be done
B. An illegal act, or an act which is not illegal by illegal means such agreement is
designated a criminal conspiracy.

Agree to do or caused to be done:-

The essence of offence of conspiracy is the fact of combination by agreement the agreement may be
express or implied. The conspiracy arises and the offence is committed as soon as the agreement is
made and continues to be committed as long as a combination persist that is until the conspirational
agreement is terminated by the completion of its performance by abandonment of frustration or
however it may be essence of conspiracy.
In the instant case Manoj also accepted that, Mr. Rajesh paid him 10 Lakh RS. for the same.
In the case of CBI HYDERABAD Vs NARAYAN RAO11SC held that to do an agreement is the
essence of criminal conspiracy. Direct evidence of conspiracy is rarely available. It has to be proved
on the basis of circumstances prior and after occurrence.
In the case of HIRALAL HIRILAL BHAGWATI Vs C.B.I. NEW DELHI 12 court held that to bring
home charges of conspiracy within the ambit of Sec 120B of IPC it is necessary to establish that there
was an agreement between the parties for doing an unlawful act.

1.The actus reus in a conspiracy:-

In the actus reus in a conspiracy is the agreement to execute the illegal conduct not the execution
of it is not enough that the one or more person pursued the same lawful object at the same the time or
in the same place.

11
2012 Cr.LJ 4610
12
1979 Cr.LJ (N.O.C) 95

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2.Meeting of mind:-
It is necessary to show a consensus-idem between all the members party to the criminal
conspiracy hat is a consensus to the effect of unlawful purpose it is not however necessary that eacy
conspirator have been in communication with each ether.
In the case of DALMIA R.K. Vs DELHI ADMINISTRATION13 SC held that it is not necessary that
each member of the conspiracy must know all the details of conspiracy.

Circumstamtial Evidence Is conclusive In nature:-

In considering the question criminal conspiracy it is not always possible to give affirmative evidence
about the date of the formation of conspiracy, about person who took part in the formation of the
conspiracy, about the object which the conspirator set before themselves as the object of conspiracy
was to be carried out. All this is necessarily a matter of inference. The essence of criminal conspiracy
is an agreement to do An illegal act such agreement can be proved either by direct or by circumstantial
evidence or by both in the case of RAM NARAIN Vs STATE OF RAJASTHAN 14 it is not necessary
that there should be express proof of the agreement far from the act and conduct of parties the
agreement can be inferred.
Now in the case of YOGESH ALIAS……JAGDISH JOSHI Vs STATE OF MAHARASTRA15 It was
stated by SC that to constitute an offence of criminal conspiracy meeting of mind of two or more
person is sine qua non but it may not be possible to proof the agreement between them by direct proof,
the object of conspiracy can be proved from the surrounding circumstances and conduct of the
accused.
Now in the instant case from the extra-judicial confession of the co-accused Manoj, it can clearly be
inferred that the accused person altogether hatched a conspiracy to kill the deceased according to him
Mr. Rajesh called him and directed him to eliminate Mr. Heera from his way and also paid him 10
Lakh Rs. For the same and after that he contacted other co-accused person further in pursuance to that
2 country-made pistols were also purchased by Ismail from which he and Ismail shot the deceased.
As for as evidentiary value of extra-judicial confession made to the police officer is concurred
however Sec 25 IEA excludes from evidence all the statements amounting to the confession made to a
police officer by an accused person but Sec 27 IEA is an exception to this rule. According to which
statements made by the accused that lead to a subsequent discovery are admissible as evidence.

In the instance case where police arrested all the other co-accused person, they all pointer out to the
country made pistol which was recovered from the house of the Mr. Rajesh.
Thus this discovery makes such portion of information given by Manoj distinctly connected to the said
discovery fully admissible.

13
AIR 1962 SC 1821
14
AIR 1973 SC 1188
15
2008 Cr.LJ 3872

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Hence the prosecution story relying upon the circumstances and the conduct of the accused consequent
to the conspiracy which ultimately caused the death of the deceased is completely reliable and more
than enough to proof the conviction of the accused U/S 302/120B of IPC.

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PRAYER

Wherefore in the light of fact presented, issue raised, argument advanced and authority cited it is most
humbly prayed before that Hon’ble HC that this court adjudges and declares that:

1. The present appeal under Section 374 of Code of Criminal Procedure, 1973 is not
maintainable.
2. The appellant is guilty U/S. 302 /34 of IPC, 1860
3. The appellant is guilty U/S. 302/120B of IPC.

MISCELLANEOUS

The Hon’ble Court may also be pleased to pass any other, which may be deemed fit in light of justice
equality and good conscience.

DATED… (Counsel for the Respondent)

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