BEFORE THE HON’BLE HIGH COURT OF INDIA

In the matter of

NANBOO KEDAR

(PETITIONER)

V​.

STATE OF M.P

(RESPONDENT)

MEMORANDUM FOR THE APPELLANT

Submitted by:

Neelam Thakur

Section- C

Roll No. 88, Semester- V

Date of submission: 26/9/2016

​TABLE OF CONTENTS
Table of contents
List of Abbreviations
Index of authorities
Websites
Statutes
Statement of Jurisdiction
Statement of facts
Statement of charge
Summary of arguments
Argument advanced
Issue raised
Prayer

ABBREVIATIONS
● & And
● AIR All India Report
● HC HighCourt
● V. Versus
● Sec. Section
● Gov. Government
● I.P.C Indian Penal code
● IC Indian cases
● N. foot note no.
● M.P M.P High Court
● CPC Criminal Procedure Code

​INDEX OF AUTHORITIES
LIST OF CASES​:
● Mahant Moti Das v. S. P. Saki, see P. 563,

● R. M. D.Chamarbaugwalla v. The Union of India

.
BOOKS REFERRED:

J.N PANDEY,THE CONSTITUTINAL LAW OF INDIA

WEBSITES:
● https://indiankanoon.org

● https;//manupatra.org

STATUTES:

● Indian Penal code 1860

​STATEMENT OF JURISDICTION

The appellant has reached the honorable High Court of M.P under Section 374 of Code of
Criminal Procedure​.

374. Appeals from convictions.

(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
2 has been passed against him or against any other person convicted at the same trial], may
appeal to the High Court.

​STATEMENT OF FACT
 1) The two appellants Nanboo and Kutar have been convicted under Section 304 (Part
II) and 304 (Part II) read with Section 114. I. P. C. and have been sentenced to Rule 1
for 6 years and 4 years respectively.

I) On 14-3-1960 at about 9 a. m. there was a Puja known as "Badawat" in the house of

one Lal singh P.W. 1, where many persons assembled including the two appellants, as
well as Gulab singh P.W. 2, Jayram P. W. 3, Dal singh P.W. 4, Kadu P.W. 5 and
Bhilu P.W. 12. They all belonged to the same village.
II) The deceased Ratan-singh also came there and sat in the assembly. His presence was
however objected to by appellant No. 2 Kutar on the ground that lie had an illicit
connection with the wife of his son Juwan-singh. Ratansingh's denial of the fact
resulted in some quarrel at which Kutar asked his son Nanboo, appellant No. 1 to beat
him.
III) Nanboo accordingly took up a log of wood lying nearby and gave on the head of
Ratan a heavy blow. Ratan fell down and. the two appellants ran away\

2) On receipt of this information the police arrived at the village at about 12 in the
noon and inquired about the incident. On the next day Ratan was sent to the
hospital of Jobat.
3) On 19-3-1960 at 1 p.m. Ratan succumbed to the injuries. The two appellants
thereupon were prosecuted under Sections 302 and 302 read with Section 114, I.
P. C. but ultimately have been convicted and sentenced as stated above.

STATEMENT OF CHARGE
 Charge 1
The two appellants Nanboo and Kutar have been convicted under Section 304 (Part II) and 304
(Part II) read with Section 114. I. P. C. and have been sentenced to Rule 1 for 6 years and 4 years
respectively.
 ISSUED RAISED

● Whether ​The appellant No. 2 Kutar has been convicted under Section 304(2) and section 114, of I. P.
C.,. is applicable to him​ or not ?
 SUMMARY OF ARGUMENT

Issue 1
● Whether The appellant No. 2 Kutar has been convicted under Section 304(2) read with
Section 114, I. P. C.,. will not be applicable to him​ ?
● No, The appellant No. 2 Kutar has been convicted under Section 304(2) read with
Section 114, I. P. C.,. will not be applicable to him.

✓ It is humbly submitted to Hon’ble court that ​The appellant No. 2 Kutar has been
convicted under Section 304(2) with Section 114, I. P. C.,. will not be applicable to him
because however he is present at the time of offence but his intension is not to gave
grivious hurt to deceased so as result to death. He asked his son to beat ratan so that he
may left the assembly.. People who examined the fact that quarrel taken place between
kudar and ratan and kudar instigate nanboo to beat ratan but here kudar asked nanboo to
to beat ratan , his intension was not to kill ratan . This does not indicate that the
deceased should be done to death. Nor did Kutar help him in giving any lathi or any other
weapon to assault the deceased.
 ARGUMENTS ADVANCED

Whether The appellant No. 2 Kutar has been convicted under Section 304(2) read with
Section 114, I. P. C.,. will not be applicable to him​ ?

It is humbly submitted to Hon’ble court that ​The appellant No. 2 Kutar has been convicted under
Section 304(2) read with Section 114, I. P. C.,. will not be applicable to him.However he is
present at the time of offence but his intension was not to kill deceased ,he asked his son to beat
ratan so that he leave the assembly , ​This does not indicate that the deceased should be done to
death. Nor did Kutar help him in giving any lathi or any other weapon to assault the deceased.

Section 304 in The Indian Penal Code

304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable
homicide not amounting to murder shall be punished with 1[imprisonment for life], or
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the intention of causing death,
or of causing such bodily injury as is likely to cause death, or with imprisonment of either
description for a term which may extend to ten years, or with fine, or with both, if the act is done
with the knowledge that it is likely to cause death, but without any intention to cause death, or to
cause such bodily injury as is likely to cause death.

Section 114 in The Indian Penal Code

114. Abettor present when offence is committed.—Whenever any person, who is absent
would be liable to be punished as an abettor, is present when the act or offence for which he
would be punishable in consequence of the abetment is committed, he shall be deemed to
have committed such act or offence.

● The words "if absent would be liable to be punished as an abettor" are important. To bring a
person within ​Section 114​ of the Indian Penal Code, the abetment must be complete apart
from the mere presence of the abettor.

● It is necessary first to make out the circumstances which constitute abetment, so that, "if
absent", he would have been "liable to be punished as an abettor", and then to show that he
was present when the offence was committed.

● The previous concert is an essential factor in the constitution of the offence of abetment
under ​Section 114​ of the Indian Penal Code.

Illustration

● A', strucks a blow in the presence of, and by the order of 'B'. Both are principals in the
transaction. If two persons join in beating a man, and he dies, it is not necessary to ascertain
exactly what the effect of each blow was. If 'A' instigates 'B' to murder 'Z', he commits
abetment and is punishable in any event; if absent, he is punishable as an abettor; if the
offence is committed, then under Section 109; if present, he is by Section 114 deemed to
have committed the offence and is punishable as a principal.

Thus, Section 114 will not apply unless the following facts are prima facie established from the
record of the case :

(1) Abetment prior to commission of the offence; and

(2) Abettor's presence at such commission

.The words "his presence when the act or offence..... is committed" are also important.
 I) The mere presence as an abettor of any person will not render him liable for the offence
committed. He must be sufficiently near to give assistance, and there must be a participation
in the act.
II) If an abettor of an offence is on his account of his presence at its commission, to be charged
under ​Section 114​ as a principal, his abetment must continue down to the time of the
commission.

It is humbly contended that facts are prima facie established from the
record of case that​:
I) There is no any abetment prior to commission of the offence.
● Firstly, As It is clearly mentioned that quarrel have been taken place between the deceased and the
kutar and because of that, kutar asked his son nanboo to beat deceased Ratan so there is no prior
commission of the offence taken place,
● secondly however he is present at the time of offence but he does not participated in the act​. This
does not indicate that the deceased should be done to death. Nor did Kutar help him in giving
any lathi or any other weapon to assault the deceased.

II) In order to hold Kutar guilty by application of Section III, the prosecution should not
only establish that the act committed was done at the instigation of Kutar but also it
was the probable consequence of the abetment. The act instigated was the beating at
the time when Nanboo had no weapon in his hand but the latter proceeded further and
took a stick and gave a very heavy blow. This can never be said to be a probable
consequence of the abetment.

III) Appellant No. 2 Kutar therefore cannot be convicted for abetment of an offence
under Section 304 (Part II), I. P. C. At best his conviction can only be under Section
323 read with Section 109, I. P. C.
 ● Section 323 Punishment for voluntarily causing hurt​.

Sec 323—Whoever, except in the case provided for by section 334, voluntarily causes
hurt, shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand rupees, or with both re
with Section 109, I. P. C
\

IV) He has already undergone a jail sentence for about 3 months and I consider that
period is sufficient for the offence of which he is found
 ​PRAYER

Therefore, in the light of issues raised, arguments advanced and authorities cited, the Hon’ble
court may be pleased to declare and adjudge that:

A. The suit filed by the appellant shall be heard and adjudged.

B. The accusations filed by the appellant shall be accepted.

Or to pass any other order, which this court may deem fit in the interest of Justice, Equity and
Good Conscience.

All of which is most humbly prayed.

Place: India

Neelam Thakur

Counsel for the Appellant