1. WHETHER THE ACCUSED IS GUILTY OF MURDER?

It is humbly submitted before this Hon’ble Court that the accused is not guilty of murder as-

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.1 Under section 299 of the Indian penal code, homicide
becomes culpable when a human being terminates the life of another in blameworthy
manner.2 The 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
not amount to offence of culpable homicide.3

Intention and knowledge 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 followed by consequences, thus the consequence necessary to constitute the
offence of culpable homicide is death. By “intention” it is meant that the expectation of the
consequences in question and intention doesn’t therefore necessarily involve premeditation,
or thing out killing beforehand. A man accepts the natural consequences of his acts and
therefore in law is presumed to intend them. 5 An act is set to cause death when death results
either from the act directly or results from some consequences necessarily or naturally
flowing from such act and reasonably contemplated as its result.6

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

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. AIR 1976 SC 1519: (1976) 2 SCC 788: 1976 CrLJ 1186 following Anda v. State of
Rajasthan AIR 1966 SC 148: 1966 CrLJ 171
5
Nirbhai Singh, 1972 CrLJ 1474 (MP)
6
D. Yohannan v. State of Kerala, AIR 1958 Ker 207 :1958 Cr LJ 1021.
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
death. Death occurs when brain dies completely.7

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
cause death and thus it is regulated by the first part of section 304 of IPC. 10 In the present
case the accused is charged under the s.304 of I.P.C because the act of the accused falls under
second proviso of Exception1 to S.300 of I.P.C. In Harendra Nath Mandal v. State of Bihar 11,
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 any of the five exceptions to S.300.

A. WHEN INTENTION AND KNOWLEDGE GO HAND IN HAND

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 Intention and knowledge
commonly go together. Question of knowledge and intention are essentially question of
fact.13 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.14

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

7
Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454: AIR 2011 SC 1290.
8
Daya Nand v. State of Haryana, 2008 Cr LJ 2975 (SC): AIR 2008 SC 1823 and Radhey v. State of
Chhattisgarh, 2008 CrLJ 3520 (SC): AIR 2008 SC 2878.
9
Lakhan v. State, 2008 CrLJ 1194 (MP).; Ganraj v. State, 2008 Cr LJ 253 (Raj).
10
Prabhati Lal v. State, 2008 CrLJ 859 (Raj).
11
1993 1 Crimes 984 (SC)
12
Keshub Mahindra v. State of M.P., 1996 (3) Crimes 288 (SC) : (1996) 6 SCC 129 : 1996 SCC (Cri) 1124.
13
Bhur Singh v. State of M.P., 1985 C Cr J (MP) 184.
14
Inder Singh v. State of Pepsu, AIR 1955 SC 439 : 1955 Cr LJ 1014.
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. 15 It
was held in the case of Jaspal Singh v. State of Punjab 16 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.17

The law books18, 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. Adverting to the contention that there
is only a single blow, it was further held that the question is not whether the prisoner intended
to inflict a serious injury or trivial one. But whether he intended to inflict the injury that is
proved to be present, referring to these observation of the case Virsa Singh, a divisional
bench of Supreme Court19, laid down that the prosecution must prove (1.) That the body
injury is present (2.) The injury is sufficient in the ordinary course of nature to cause death
(3.)That there was knowledge that the injury was as such which could cause death.

B. WHEN SUDDEN FIGHTS LEAD TO DEATH OF A PERSON

In the present case the accused intended to inflict the injury which caused death of Inspector
Anant Sharma after a sudden fight. On careful consideration of the entire facts on record it is
to be found that the inspector had not even taken out his gun from the holster and the accused
with proper intention threw the metal rod towards the inspector and hit him on his head to
cause such injury which could cause death of the deceased and thus the accused should be
found guilty under S. 304 Part I. In another case the accused in a sudden fight wielded sharp
edged weapons and caused fatal injuries, prosecution story was revealed promptly by the
injured witness and it was stated that fight was taken place at a spur of the moment, without
any intention to kill, it was held that the offence is punishable under section 304 part 1. 20 In
the case of Nashari Naik v.State21 the accused caused lathi blows and one accused used cycle
chain to cause death of the deceased, it was held that the accused using lathis were guilty
under section 304 and other under section 323.

15
Subran v. State of Kerala, 1993 Cr LJ 1387 (SC) : 1993 AIR SCW (1014) : (1993) 3 SCC 32 : (1993) 2 Crimes 15
16
Jaspal Singh v. State of Punjab, AIR 1986 SC 683: 1986 Cr LJ 488: (1986) I Crimes 435: (1986) 2 SCC 100.
17
Chahat Khan v. State of Haryana AIR 1972 SC 2574: 1972 SCC (Cri) 558: 1972 UJ (SC) 273.
18
R.Ratanlal and K.T.Dhirajlal, (32nd edn,2010)
19
Jagrup Singh v. State of Haryana, AIR 1981 SC 1552 : 1981 Cr LJ 1136 : 1981 Cr LR (SC) 462 : (1981) 3 SCC616.
20
Sukha Singh v. State of Karnataka, 2015 Cr LJ 3133 (P&H).
21
Nashri Naik v. State, 1998 Cr LJ 3984 (Ori).
2. Whether the co-accused aided the accused to abetted the murder or not.

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 Secundum22, the meaning of the word abet has been defined
as meaning to aid; to assist or to give aid; to command, or to counsel; to encourage, 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.23

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. 24 Abetment 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
counselled, and he will be convicted if he is proved to have participated in one or more of
these four ways.25

A. The co-accused instigated the accused to do the act and hence are part of the crime
22
See Corpus Juris Secundum , Vol. 1,p. 306.
23
Katar Singh v. State of Punjab (1994) 3 SCC 569 : 1994 CrLJ 3139 : (1994) 1 SCC (Cri) 899.
24
Faguna Kanta v. The State of Assam, 1959 CrLJ 917 (SC) : AIR 1959 SC673
25
Re Smith, (1858) 3 H&N 277 : Ferguson v. Weaving, (1951) 1 KB 814 : (1951) 1 ALL ER 421
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.26 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. 27 These things are essential ingredients of section
107 and are all found in the present case. Abetment may consist of passive assistance. 28 In 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.29

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
an offence, his omission will constitute aiding or abetting, if it amounts to a positive
encouragement to be to commit the offence30. 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
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.31

B. When does actually instigation amount to abetment?

If abetment is divided these two kinds, it follows that while abetment by instigation and
abetment by intentionally aiding the offence can, both be done wither immediately before the
commission of the offence or prior to it, abetment by conspiracy can hardly be committed at

26
Malan v. State of Maharashtra ,AIR 1960 Bom 393 : 1960 Cr LJ 1189 : ILR 1958 Bom 700
27
Banwari Lal v. State of Haryana 1979 Cl R (P&H) 233 (235).
28
Tuck v. Robson, (1970) 1 All ER 1171.
29
Baxanto v. State of U.P. AIR 1965 All 120 : (1965) J CrLJ 267
30
CROSS & JONES, Introduction to Criminal Law, 9 th Edn., p.389., para19.8.
31
State of Punjab v. Iqbal Singh, AIR 1991 SC 1532 Surender v. State of Haryana (2006) 12 SCC 375 Kishori Lalv.
State of M.P., AIR 2007 SC 2457 and Sonti Rama Krishna v. Sonti Shanti Sree, AIR 2009 SC 923.
the time of the commission of the offence. In other words, one can commit an offence by
instigation, either at the time of the commission of the offence or an hour, a day, a week, or a
month before the commission. Similarly, abetment by aiding can precede the commission of
the offence immediately, or by an hour, a day, a week and so on. Abetment by conspiracy,
however, presupposes a deliberate and previous act on the part of the abettor. 32 To prove
abetment by “illegal omission”, it is necessary to show that the accused intentionally aided
the commission of the offence by his non-interference, and the omissions involved a breach
of legal obligation.33 The word illegal omission in connection with the definition of abetment
has reference to an intention of “aiding the doing of a thing”. To constitute abetment, a
person must instruct any person to do a particular thing or he must engage himself with one
or more persons in a conspiracy of doing that thing, he must intentionally aid by an act or
illegally omit the doing of that thing.

C. The accused and co-accused had common intention to cause death of the deceased.

The criminal act mentioned in Indian penal code 186034 is 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. 35 It 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 diverse 36. 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 them 37 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 act were done
by him alone38 and each person will be alleged to have had committed the entire act 39. It is not
necessary that the act done in furtherance of the common intention must be the very act
intended by the accused. The common intention must be to commit the particular crime

32
Sital v. Emperor, AIR 1935 Oudh 468 ; 36 Cr LJ 1151.
33
Cooverji, (1906) 9 Bom LR 159, Khadim Sheikh (1869) 4 Beng LR (ACr J) 7.
34
Indian Penal Code 1860 S.34
35
Shankarlal Kacharabhai v State of Gujarat AIR 1965 SC 1260
36
Nandu Rastogi v State of Bihar (2002) 8 SCC 9.
37
Hari Ram v State of Uttar Pradesh (2004) 8 SCC 146.
38
State of Uttar Pradesh v Iftikhar Khan AIR 1973 SC 863
39
Matiullah Sheikh v State of West Bengal AIR 1965 SC 132, Babu Ram v State of Uttar Pradesh AIR 2002
SC2815,
although the actual crime may be committed by any one of those sharing the common
intention and acting in furtherance of the same.40

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
subsequent attendant circumstances. The subjective element in common intention, therefore,
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.41 Direct proof for common intention will
generally be difficult to obtain.42 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
it must necessarily be before the commission of the crime.43

The question of a common intention is a matter of fact in each case and has to be proved as a
necessary inference44 from the facts45 and circumstances of the case, acts and conduct of
parties46 including conduct subsequent to the incident47, 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 48, nature of the
weapons used49, manner of injuries inflicted50 or any other incriminating facts.51 The
inference 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 such plan must precede the act constituting the offence.52

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,

40
Hardev Singh v State of Punjab AIR 1975 SC 179
41
Rishideo Pande v State of Uttar Pradesh (1955) Cr LJ 873.
42
State of Uttar Pradesh v Iftikhar Khan AIR 1973 SC 863.
43
Hari Ram v State of Uttar Pradesh (2004) 8 SCC 146.
44
Mohan Singh v State of Punjab AIR 1963 SC 174, ; see also Mahbub Shah v Emperor AIR 1945 PC 118
45
Baleshwar Rai v State of Bihar [1963] 2 SCR 433.
46
BN Srikantaiah v State of Mysore AIR 1958 SC 672
47
Hari Om v State of Uttar Pradesh (1993) Supp 2 SCC 1
48
Krishna Govind Patil v State of Maharashtra AIR 1963 SC 1413
49
Dukhmochan Pandey v State of Bihar AIR 1998 SC 40.
50
Yallappa v State of Karnataka (1994) 1 SCC 730
51
Ramashish Yadav v State of Bihar AIR 1999 SC 3830
52
Suresh v State of Uttar Pradesh AIR 2001 SC 1344
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 offence53 and necessarily implies a prearranged plan.54 To constitute
common intention, it is necessary that the intention of each of the accused is known to the
rest and shared by them all.55

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
result in death, each of the accused is guilty of committing murder.56

3. Whether the accused and co-accused obstructed the public servant while he was
discharging hi lawful duties?

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
punishable under s.186 of IPC. This is a general section and provides for punishment for the
offence of “voluntarily” obstructing a public servant in the discharge of his public functions. 57
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,58 In other words “obstruction” denotes some overt act in the nature of
violence or show of violence.59 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. 60 It 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.61 The accused in Santosh Kumar Jain v. State,
voluntarily obstructed a public servant at a time when he was acting in the course of his
53
Joginder Singh v State of Haryana AIR 1994 SC 461
54
Pandurang v State of Hyderabad AIR 1955 SC 216.
55
Ankeri v State of Rajasthan AIR 1994 SC 842, Shangara v State of Punjab (1994) Cr LJ 1098 (SC)
56
Anda v State of Rajasthan AIR 1966 SC 148, Anda v State of Rajasthan (1966) Cr LJ 171.
57
Santosh Kumar Jain v. State, AIR 1951 SC 201
58
Q.E. v. Sommanna, 1827 ILR 15 Mdr. 221
59
Phudki v. Stae of Uttar Pradesh, AIR 1955 All 104.
60
Babulal, 1956 Bom LR 1021.
61
Odwil Devaki Amma v. State of Kerala, 1982 Cr LJ 11 Ker (NOC)
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.

1. Public Servant acting in good faith and under colour of his office.

If the public servant is acting in good faith under colour of his office there is no right of
private defense against such act.62 Section 186 contemplates obstruction of a public servant in
the discharge of his public duty.63 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-
officer in any part of the general police-district.64

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 65
which was exactly what police inspector Amit Chaudhary was doing at the time when the
accused hit him and caused his death.

2. Voluntary obstruction to public servant.

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. 66 A person seriously
obstructing, insulting and jostling a process-server in the execution of his duty is guilty of the

62
Poomalai Udayan, (1898) 21 Mad 296; Pukot Kotu, (1896) 19 Mad 349.
63
Bhaga Mana, (1927) 30 Bom LR 1124.
64
The Police Act, 1861
65
State of Karnataka v Jinappa Payappa Kudachi (1994) Supp 1 SCC 178, (1994) SCC (Cr) 330; Mubbi v State of
Madhya Pradesh (1999) SCC (Cr) 1314.
66
Indian Penal Code, 1860 S.186.
offence under the above stated provision.67 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.68 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.69

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. 70 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.71

67
Jatto v Emperor AIR 1915 Lah 456
68
Birdhi Chand Jaipuria v Darbari Jayaswal AIR 1932 Pat 276
69
Jamnadas Tharoomal v Emperor AIR 1940 Sind 42.
70
State v B G Misar AIR 1957 Bom 10.
71
S.Ram lah In Re AIR 1951 Mad 773.