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Before
The Honourable Supreme Court
Farallon
Criminal Petition: _____/2015

In the matter of:

State
(Appellant)

v/s

Neeraj
(Respondent)

Memorial For The Respondant

Submitted ByAshish Panwar


(Counsel No. 157293)
&
Mansi Gupta
(Counsel No.157297)

Memorial For Respondent

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STATEMENT OF FACTS
The facts of case which necessitates a consideration of this Honble court are
reiterated as
follows:
1. Stuti, 18, was a student of class 12th and Neeraj (Accused-1) was her
maths school
teacher who secretly developed feelings for her.
2. On her 18 bday, Neeraj organized a party for her at his home and gifted
her an
expensive watch which was accepted by Stuti who admired him as her
teacher.
th

3. On 14th February, 2013, Neeraj proposed to Stuti for marriage who told
him to speak
to her parents for same and on her suggestion he did approach her parents
with
same proposal which was ultimately rejected by her parents with a warning
to him
not to contact her again in future. They also strongly admonished Stuti for
same and
threatened her that they will discontinue her studies.
4. Hence, she started avoiding Neeraj and told him that she wont go against
wishes of her parents and asked him not to follow her anymore. But Neeraj
tried to contact her which was reported by Stuti to her parents who rebuked
him. He however tried to convince them but was beaten.
5. Beaten and enraged with feeling of rejection, Neeraj went to Dheeraj, 45,
in whom he
always confided and narrated whole incident. Dheeraj suggested to Neeraj
who was already enraged with feeling of rejection that he should find Stuti
alone and take her to temple for marriage without informing her parents who
are critical of him. In case of resistance by Stuti
due to pressure of her parents, Dheeraj will threaten her with a bottle of acid.
6. Neeraj, who was initially reluctant, agreed to the plan on the condition that no harm
will be caused to Stuti and bottle of acid will only be used as a tool to threaten her for
compliance to their wishes.
7. On 23rd March, 2015, finding Stuti passing on a lonely road, Neeraj and
Dheeraj, who were waiting for Stuti, got out of the car. Neeraj approached Stuti and
asked her to accompany him to the temple so that they can get married.
Memorial For Respondent

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8. But Stuti refused and Dheeraj carrying bottle of acid threatened her. Neeraj started
dragging her to car on provocation of threatening of Stuti by Dheeraj. Now Stuti started
shouting loudly and to teach Stuti a lesson, Dheeraj opened the bottle and threw acid
on her face. It was not expected by Neeraj. Dheeraj then drove away the car with Neeraj.
9. Girl suffered grievous injuries. FIR was lodged and statement of Stuti was recorded. A
case was registered against both the accused under Sec 326A r/w Sec 34 IPC, 1860 and
Neeraj was also charged under Sec 354D, IPC, 1860. Dheeraj absconded and was
declared a proclaimed offender while Neeraj was arrested by police from his home.
10. Sessions Court found him guilty which aggrieved the accused who appealed before
High Court seeking acquittal. Whereas, State filed appeal for demanding life
imprisonment and also the enhancement of the amount of compensation.
11. The High court adjudicated in favour of the accused by acquitting him from the charges
under Sec.326A r/w Sec. 34, IPC, and Sec 354D IPC, 1860 and dismissed the appeal
of the State, being bereft of any substance. It held that under the circumstances of the
case the Sessions Court had wrongly held the accused liable under Sec. 326A, IPC, by
invoking Section 34 IPC, 1860 as no common intention to commit the offence of acid
attack under Sec. 326A could be proved. The High Court also held that the offence of
stalking under Sec.354D was not made out against the accused. The High Court,
however, recommended the State Legal Services Authority to decide upon the quantum
of compensation to be awarded by the State Government to the victim as per Sec. 357A,
CrPC within one month.
Now State has filed an appeal under aforesaid sections to award life imprisonment to
accused and also to enhance the compensation awarded by the Sessions Court, to Rs
3.50,000/- (three lakh fifty thousand only), to be paid by the accused to the victim in
addition to the compensation to be paid by the State Government under Sec 357A CrPC.
The State also sought permission for addition of charge under Sec 366 IPC.

HENCE, THE PRESENT MATTER BEFORE THE DIVISION BENCH


OF HONBLE SUPREME COURT.

Memorial For Respondent

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ISSUES RAISED
1. Whether the common intention under Section 34, IPC,1860 was present between Dheeraj
and Neeraj in act of throwing acid on the face of victim under Section 326A, IPC, 1860?
2. Whether the accused is guilty of stalking under Section 354D, IPC, 1860?
3. Whether the permission be given to the State to bring up additional charge of Section 366,
IPC, 1860 against the accused?

Memorial For Respondent

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ARGUMENTS ADVANCED
1. Whether the common intention under Section 34, IPC,1860 was present
between Dheeraj and Neeraj in act of throwing acid on the face of victim
under Section 326A, IPC, 1860?
1. S.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:
1.1 Criminal act is done by several persons;
1.2 Such act is done in furtherance of the common intention of all; and
1.3 Each of such persons is liable for that act in same manner as it if it were done by
him alone.1
2. 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 & Ors2, new words were introduced into the act, in furtherance of
common intention.
3. 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
cant 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.
4. 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.3 It must be noted that nowhere the accused encouraged, supported and gave
protection to Dheeraj, who actually committed the act. The act sprung wholly from the mind of
doer. Instead Accused-1, Neeraj made it clear to Dheeraj that bottle will be used only
as a tool to threaten the victim for compliance to their wishes.
5. 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.4 It was held in Hanuman Prasad vs
State of Rajasthan.

Memorial For Respondent

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_____________________________________________________________________________
_
Ratanlal & Dhirajlal, The Indian Penal Code, 34th Edition, 2014
Queen vs. Gora Chand Gope & Ors (1866) 5 South WR (Cri) 45
3 Ratanlal & Dhirajlal, The Indian Penal Code, 34th Edition, 2014
4 Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507
1
2

6. In Pandurang vs. State of Hyderabad5, 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 Neeraj 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 common intention among the accused evaporated as soon as Dheeraj
opened the bottle of acid for the ultimate act. It was sole act of Dheeraj and Neeraj
played no part in that.
7. In Mehbub Shah vs. King Emperor6 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. Neeraj
right from start was very clear that no harm must be done to victim.
8. It was held in Harbans Nonia vs State of Bihar7 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 Accuse-1. And keeping in view aforesaid judgment its not difficult
to conclude that there was absence of common intention on part of Neeraj in the act.
9. In another case of Tripta vs State of Haryana8 the situation was nearly same. In this
case the man with lathi and his wife with a gandasa came to protest to his father over
a land dispute which all of sudden turned ugly and son charged lathi leading to death
of father. The wife struck only grandson causing a non-fatal injury. Her husband was
convicted for murder but her sentence was reduced to causing grievous hurt.
Here it appeared that the whole thing was a spot happening and not a planned affair.
10. It is humbly submitted to honorable Court that the Accused-1 cant 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.9
Hence, it is humbly submitted that there was no presence of common intention on the
part of Neeraj in the act of throwing acid on the face of victim and hence the Accused-1,
Memorial For Respondent

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Neeraj cant be treated under section 34 and hence cant be held guilty under section
326A of IPC.
_____________________________________________________________________________
_5 AIR 1955 SC216: 1955 Cr Lj 572
Mehbub Shah vs King Emperor, AIR 1945 PC 148
Harbans Nonia vs State of Bihar, AIR 1992 SC125: 1992 Cr LJ 105
8 Tripta vs State of Haryana, AIR 1992 SC 948
9 AIR 1994 SC 1452
6
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2. Whether the accused is guilty of stalking under Section 354D, IPC, 1860?
1. It is humbly submitted before honourable 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.
2. In fact Stuti, the victim told him to speak to her parents for the same. Instead of denying
the proposal she told him to her parents. This is a strong sign that she was not against
marriage proposal.
3. Section 354D, IPC 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 couldnt be brought under the horizon of stalking as held by honourable High Court.
4. The 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.
6.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.10
Hence it is humbly submitted that the accused shouldnt be held guilty under Section 354D,
IPC,1860.

Memorial For Respondent

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_____________________________________________________________________________
_
10

Ghurey Lal v. State of UP on 30th July, 2008. Criminal Appeal No. 155 of 2006

3.Whether the permission be given to bring up additional charge of


Section 366, IPC, 1860 against accused in an appeal to Supreme Court?
1. It is humbly submitted before the Honble Court that the present matter has already been tried
before the Sessions Court. The Magistrate, at the time of committal proceedings under Section
209, CrPC did not charge the accused with Section 366, IPC, 1860.
2. An application for addition or alteration of the charge should be made immediately after
the charge has been read out and explained by the Magistrate.11 It is submitted that the
prosecution had the opportunity to get the new charge of Section 366, IPC added against the
accused. But the prosecution did not do so.
3. It is further submitted that the High Court having inherent power to do so, did not find any
ground to add a charge under Section 366,IPC against the accused.
4. The late framing of a charge would cause prejudice to the accused and no injustice would be
caused to the complainant by refusal. 12
5. It is to be noted that the High Court has acquitted the accused from all the charges and has
dismissed the appeal of the State. When the accused was discharged of all the charges and no
charge existed against him, an application by prosecution under Sec 216, CrPC was not
maintainable. 13
5. The addition of a new charge will amount to re-opening of the trail and will dissipate the
valuable time of the Honble Supreme Court.
Hence, it is humbly requested from the Honble Court not to maintain the permission of
the State to add a charge under Sec 366, IPC against the accused.

Memorial For Respondent

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_____________________________________________________________________________
_
T. J. Edward v. C.A. Victor Immanuel, 2002 Cr LJ 1670 (Ker)
Uma Dutta v. G. Mahadevan, 1993 Cr LJ 3231 (Ori)
13 Sohan Lal v. State of Rajasthan, 1990 Cr LJ 2302 : AIR 1990 SC 2158
11
12

PRAYER FOR RELIEF


HEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Honble Court to declare that :
1. Mr. Neeraj is not guilty of the crimes of causing grievous hurt by use of acid and
stalking.
2. Permission shall not be given to the State to add a charge of Section 366, IPC against the
accused.
3. The High Courts acquittal order of Mr. Neeraj should be reserved.
The court may also be pleased to pass any other order, which this Honble Court may deem fit
in light of justice, equity and good conscience.
___________________

Counsels for Respondent

Memorial For Respondent