TEAM CODE – LZNMC-R09

3RD NATIONAL VIRTUAL MOOT COURT COMPETITION

Before
THE HONOURABLE HIGH COURT
AT DELTA ISLAND

In The Matter Of

HARI, KARI,
SIBU &
KANAIYA
(APPELLANTS)
v.
UNION OF DELTA
(RESPONDENT)

MEMORIAL SUBMITTED BY COUNSEL ON BEHALF OF

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 TABLE OF CONTENT

LIST OF ABBREVIATIONS …………………………………….………………….. 3

INDEX OF AUTHORITIES ………………………………………………………….. 4

• CASE LAWS ………………………………………………………………….. 4

• BOOKS ………………………………………………………………………… 5

• STATUTES ……………………………………………………………………. 5

STATEMENT OF JURISDICTION…………………………………………………… 6

STATEMENT OF FACTS …………………………………………………………... 7

STATEMENT OF ISSUES …………………………………………………………… 9

SUMMARY OF ARGUMENTS …………………………………………………….. 10

ARGUMENTS ADVANCED …………………………………………………………. 11

PRAYER ……………………………………………………………………………….. 20

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 LIST OF ABBREVIATIONS

Sc Supreme Court

Art Article

V. Versus

Govt. Government

Ors. Others

Hon'ble Honourable

& And

Mr. Mister

Info Information

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 INDEX OF AUTHORITIES

Case laws:

 Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

BOOKS

 Gaur, KD Firearms, Forensic Ballistics, Forensic Chemistry and Criminal

Jurisprudence, (2nd Ed 1989)

 Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

 Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

 Harris, Criminal Law, (22nd Ed. 2000)

 Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

STATUTES

 The Code of Criminal Procedure, 1973 (Act 2 of 1973)

 The Indian Evidence Act, 1872 (Act 18 of 1872)

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  The Indian Penal Code, 1860 (Act 45 of 1860)

WEBSITES:

 http://www.findlaw.com

 http://www.judis.nic.in

 http://www.manupatra.co.in/AdvancedLegalSearch.aspx

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 STATEMENT OF JURISDICTION

The Appellants humbly approach the Hon’ble High Court under Section 374(2) of the Code of
Criminal Procedure, 1973, which reads as follows:

374. Appeals from convictions. -

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

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, may appeal to the High Court.

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

Convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

sentenced under section 325, or

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 Appellants humbly submit to the jurisdiction of this Hon’ble Court.

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 STATEMENT OF FACTS

1. Honey was a 23-year-old girl residing with her parents and younger brother.

2. On 31.12.2021 at 04.30 pm, Honey along with one of her friends Kunali went to Hotel
Pushpa to celebrate the New Year Party.

3. After party around 01.00 A.M. on 01.01.2022 Honey along with her friend Kunali left
for their homes from Hotel Pushpa with their own Vehicle (Scooty) bearing registration
no. BP-M-7898.

4. Around 01.30 A.M. Honey and Kunali met with an accident with a car. In that accident,
Kunali fell in the opposite side of the car but Honey got trapped between the wheels of
the car. Unfortunately, the car didn’t stop and dragged Honey for 12-13 kms and
because of which Honey died.

5. On the next morning near Hansa college police patrolling team found the dead body of
Honey. The police officials sent the dead body of the deceased to KIIMS hospital for
post-mortem.

6. In Post-mortem report it was revealed that the cause of death was excessive flow of
blood and serious injuries in brain and other parts of the body.

7. During the investigation police officials found from CCTV footage that at the time of
accident there were four people in the car and upon identification police officials
arrested all the four accused namely Hari, Kari, Sibu and Kanaiya and registered an
F.I.R under Sections 279 & 304 DPC .

8. During further investigation when the police officials questioned Kunali, she told that
when the accident happened, four people were present in the car and they were heavily
drunk. She further stated that the person who was driving the car, got out of the car and
saw honey being stuck in middle of the car, still sat back and drove away.

9. When the local people got to know through the Media persons that an F.I.R has been
registered under sections 279 & 304 of DPC , they started protesting and demanding
that this was a brutal murder, hence the F.I.R should be registered under Section 302 of
DPC .

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10. Ministry of Home and Affairs also supported the public Protest and asked police
officials to register an F.I.R. under Sections 302/279 and 34 of DPC . Apparently, the
F.I.R got registered under section 302 of DPC and the Police Officials filed a Charge-
sheet before the Court.

11. The trial was conducted by the Hon’ble Session Court of Delta Island and on the basis
of the witness testimony along with the evidence present, the Hon’ble Session Court
convicted all four accused and sentenced them to Life Imprisonment u/s 302/279 and
34 of DPC and also imposed a fine of INR 5, 00,000/- upon all four of them.

12. Aggrieved by this order, all the four accused approached the Hon’ble High Court of
Delta Island.

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 STATEMENT OF ISSUES

1) Whether the appellant can be prosecuted under section 302 of DPC.

2) Whether the appellant can be prosecuted under section 34 of DPC.

3) Whether the appellant can be prosecuted under section 279 of DPC.

4) Whether the sessions court was justified in sentencing the appellant with life
imprisonment and a fine of INR 5,00,000/- in connection with the said act.

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 SUMMARY OF ARGUMENTS

1) Whether the appellant can be prosecuted under section 302 of DPC.

It is humbly submitted before the Hon’ble court that the accused cannot be convicted under
section 302 of DPC since the essential elements of murder that is intention to cause death,
knowledge that the act may cause the death of another and bodily injury as is likely to cause
death, were not present.

2) Whether the appellant can be prosecuted under section 34 of DPC.

It is humbly submitted before the Hon’ble court that the accused cannot be convicted under
section 34 of DPC since there was common intension of the accused to kill the deceased 30

3) Whether the appellant can be prosecuted under section 279 of DPC.

It is humbly submitted before the Hon’ble court that the accused can be convicted under section
279 of DPC since the act of driving a car under the influence of alcohol and not stopping even
after realizing that a person was trapped in it constitutes rash and negligent driving, which
resulted in Honey's death. Therefore, the accused can also be prosecuted under Section 279 of
the DPC.

4) Whether the sessions court was justified in sentencing the appellant with life
imprisonment and a fine of INR 5,00,000/- in connection with the said act.

The sentence imposed by the Sessions Court is not harsh and excessive, as there is evidence to
suggest that they had intention to cause harm to Honey. Also, the sentence imposed on Hari,
Kari, Sibu, and Kanaiya is not violative of Article 21 of the Constitution, which guarantees the
right to life and personal liberty.

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 ARGUMENTS ADVANCED

1. Whether the appellant can be prosecuted under section 302 of DPC.

It is humbly contended that the Hon’ble Sessions Court correctly held the Appellants as

guilty of murder under Section 302 read with Section 34 of IPC. Section 302 read with Section
34, DPC envisages commission of murder by two or more people in furtherance of a common
intention. Section 300 of DPC gives the definition of murder and enumerates the ingredients
of the offence.

Section 300 of DPC contemplates that a person is guilty of murder if he intentionally causes
the death of a person or causes such bodily injury as he knows, is likely to cause death of that
person or causes such bodily injury, which in the ordinary course of nature results into death
or commits an act so dangerous that it must, in all probability cause death of that person.

Essential ingredients of murder

Section 302 of the DPC doesn’t clarify when these three above-mentioned punishments shall
be imposed. However, Section 300 of the DPC mentions three instances if fulfilled, shall be
termed as murder. They are:

The act must be done with the intention to kill someone and cause death. An intentional
omission is also included here. For example, A stabs B with a knife, with an intention to kill
him. B dies, A has committed murder.

The act is done with the intention to cause bodily injury and such bodily injury is likely to
result in death.

If the act is done having proper knowledge that it will cause death, such an act shall be termed
as murder.

1.1 Intention

It is presumed that every sane person intends the result that his action normally produces and
if a person hits another on a vulnerable part of the body, and death occurs as a result, the
intention of the accused can be no other than to take the life of the victim and the offence
committed amounts to murder.

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Moreover, the intention to kill is not required in every case, mere knowledge that natural and
probable consequences of an act would be death will suffice for a conviction under section.302
of the DPC1.The intention to kill can be inferred from the murder and nature of the injuries
caused to the victim2.

The Supreme Court has held that Mens Rea is an essential ingredient of a criminal offence. In
a criminal court one often wants to test the alleged guilty mind by seeing what was the motive
of the alleged criminal in doing the particular act. It is not essential under DPC for prosecution
to establish motive. But as a matter of common sense, this is usually of importance, because an
average man does not commit a criminal offence unless he has a strong motive for doing it.

The absence of proof of motive has this effect only, that the other evidence bearing guilt of the
accused has to be very closely examined3.

Assuming for the sake of argument that the accused had no motive, it is humbly contended that
absence of motive is no ground for dismissing the case. Motive is immaterial so far as the
offence is concerned, and need not be established4 as the mere existence of motive is by itself,
not an incriminating circumstance and cannot take the place of a proof.

Therefore, absence of proof of motive, does not break the link in the chain of circumstances
connecting the accused with the crime, nor militates against the prosecution case and is not
fatal as a matter of law.

When the circumstantial evidence on record is sufficient to prove beyond any doubt to prove
that it was the accused and no one else, who intentionally caused the death of the accused then,
motive of the crime need not be proved5

Therefore, it is humbly submitted before this Hon’ble Court that The Accused were correctly
held guilty for the offence of murder, given that the requisite Mens Rea has been established
by the Prosecution from the facts of the case, beyond a reasonable doubt.

2) Whether the appellant can be prosecuted under section 34 of DPC.

1
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
2
Laxman v. State of Maharashtra, AIR 1974 SC 1803
3
Atley AIR 1955 SC 80
4
RATANLAL AND DHIRAJLAL, The Indian Penal Code, (26thed., 2007)
5
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC)

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It is humbly submitted before the Hon’ble court that the accused cannot be convicted under
section 34 of DPC since there was common intension of the accused to kill the deceased.

Section 34 of Indian Penal Code contemplates the doing of an act by several persons in
furtherance of common intention. The constructive liability under this section would arise only
if two conditions are fulfilled:

a) There must be common intention to commit the crime; and

b) There must be participation by all the persons in doing such act in furtherance of that
intention. If these two ingredients are established all the accused would be liable for the said
offence6.

Section 34 of the DPC states that when criminal conduct is committed by numerous people in
pursuit of a ‘common intention’, each of them is accountable for the crime in the same way
as if it were committed by him alone. This clause, which establishes a principle of shared
accountability in the commission of a criminal act, is an exception to a fundamental canon of
criminal law. The core of joint culpability is found in the existence of a shared goal energizing
the accused, which leads to the commission of a criminal act in pursuit of that intention.

In order to convict persons vicariously under Sec 34 it is not necessary to prove that each and
every one of the accused had indulged in overt acts. Even so, there must be material to show
that the overt act or acts of one or more of the accused was or were done in furtherance of the
common intention of the accused. A person may be “constructively liable” for acts not
committed by him by reason of Sec 34.

In Nandu Rastogi v. State of Bihar 7the SC held that to attract Section 34 of the IPC, assault
of every accused on the deceased is not necessary. Sharing similar intention of every accused
to commit the offence and in furtherance, each accused played his respective assigned role is
enough to prove their common intention.

In Krishnan v. State of Kerala 8, the Court stated that the required element under this clause
is the criminal conduct committed in furtherance of a common intention, and Section 34 did
not require anything else to be attracted. Although the court would want to hear about any overt

6
Gurdatta Mal AIR 1965 SC 257
7
2002 SC
8
1996

13
conduct in determining whether the individual had a common intention, the court emphasized
that the formation of an overt act is not a sine qua non for section 34 to function.

Therefore, it is humbly contended that before this Hon’ble Court that The Accused were
correctly held guilty for the offence under section 34.

3. Whether the appellant can be prosecuted under section 279 of DPC.

Under Section 279 of the DPC, any individual who is driving or riding a vehicle on any public
way in a rash or negligent manner, which may endanger human life or injure other people, will
be punished by law.

What is Meant by Negligent and Rash Driving?

If an individual is carelessly driving a vehicle on public roads and is likely to put other people’s
lives at risk, then they will be found guilty under Section 279 of DPC

The prosecution’s case against the accused was based on the testimony of Kunali, who was the
sole witness to the incident. She testified that the driver of the car was drunk and had not
stopped the car after noticing that Honey was stuck in it. The CCTV footage also showed four
people in the car at the time of the accident, which supported Kunali’s testimony. The post-
mortem report confirmed that Honey died from excessive blood loss and severe head and body
injuries, which were consistent with being dragged by a car for a long distance.

If the driver of any vehicle causes an accident due to negligent and rash driving, resulting in
any physical injuries to a person, then they are considered guilty under Section 279 of the DPC
The individual will also be guilty under Section 337 of DPC (causing harm by an act that
endangers personal safety or the life of other people), and Section 338 of DPC causing severe
injuries by an act that endangers personal safety or the life of other people).

In this case the driver of the vehicle was under the influence of alcohol or other intoxicants and
causes an accident that results in the death of a person, he should be considered guilty under
Section 304A of the DPC. Sec 279 IPC only deals with negligent and rash driving/riding on
public roads that can put the lives of other people in danger. However, if the driver causes death
or any bodily injuries to other people, then the person is also charged under Section 337,
Section 338, and Section 304A of the DPC.

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ESSENTIALS OF SECTION 279

That the accused must have driven any vehicle, or rode on any public way so as to endanger
human life, or as is likely to cause hurt or injury to any other person.

This condition has been fulfilled by the injuries that were diagnosed in Kunali’s injury and the
death of Honey Singh.

Which is supported by the post Morten report as mentioned in the facts of the case.

That the accused must have done such act in a rash or negligent manner.

Kunali’s statement regarding the rash driving of the driver has been satisfied this point. The
fact that he saw honey trapped in the wheels even after driving 12 kms and did not stop and
neither the other people in the car tried to stop him clearly proves that the driver as well as the
other passengers who were present in the car were negligent.

It was stated in State of Himachal Pradesh v. Amar Nath 9that, an accused person cannot be
held accountable for death caused by misadventure if he did not drive or rashly or negligently.
On the other hand, even if no one was wounded, he would be accountable if his driving was
such that it made the cause of harm or injury possible, or if it put people’s lives in danger. In
determining whether a person is rash or negligent in driving, driving at an excessive speed on
a public road may be a prima facie proof of rash driving.

In this case it has been proved through the footage shown in the cctv camera.

Even if a vehicle is driven recklessly and negligently at a reasonable speed, recently the Kerala
High Court determined that it is still regarded as ‘rash and negligent driving under Section 279
of the DPC.

The case was brought up Suo moto by the Court after a Sabarimala devotee reported that the
tractors used for goods transportation on the Sabarimala trekking path were endangering
pilgrims’ safety; as a consequence, the Court took Suo moto notice of the devotee’s objections.
The Court stated that “A person who drives a vehicle on the road may be held accountable for
both the conduct and the consequence. Even if one is driving a car at a modest pace yet

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2018

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recklessly and negligently, it is considered ‘rash and negligent driving under Section 279 of
the DPC.

State v. Gulam Meer10

Issue

The issue of this case was whether it was correct that a person who engages in rash and
negligent driving on a public road in a way that endangers human life cannot be punished for
the crime under Section 279, DPC if such driving also injures another person.

Held

According to the Court, an offence under Section 279, DPC differs from an offence under
Section 337 or Section 338, DPC and therefore a person convicted of an offence under Section
337 or Section 338, DPC can also be convicted of an offence under Section 279 DPC If the
two offences, on the other hand, are committed in the same transaction.

As in this case with all the evidence gathered it can be said that the appellant should be
prosecuted under sec 279 as well as sec 337 and 338 of the DPC.

The accused is not only guilty of the sections mentioned above but is also guilty under Section
130 of the MOTOR VEHICLES ACT.

The clauses given below as follow

134(a) of the Act required the driver to secure medical attention to the injured person
immediately.

134(b) Requires them to give information about the relevant to the police officer as soon as
possible.

FAILING IN THESE 2 DUTIES THE DRIVER WILL BE PUNISHED.

In this case it is now clearly established about the criminal Intent from the appellants side even
if the accused had complied with these actions, it could’ve been concluded that there was no
criminal intent but it isn’t and so THE ACCUSED SHOULD HE HELD GUILTY.

The act of driving a car under the influence of alcohol and not stopping even after realizing
that a person was trapped in it constitutes rash and negligent driving, which resulted in Honey’s
death. Therefore, the accused can also be prosecuted under Section 279 of the DPC.

10
1955 SC

16
4. Whether the sessions court was justified in sentencing the appellant with life
imprisonment and a fine of INR 5,00,000/- in connection with the said act.

It is humbly submitted before the Court that the sentence imposed by the Sessions Court is not
harsh and excessive. The life imprisonment and fine of Rs. 5,00,000 imposed upon all four of
them is proportionate to the alleged crime and is not violative of their constitutional right to
life and personal liberty.

4.1 The sentence imposed by the Sessions Court is not harsh and excessive, as there is
evidence to suggest that they had intention to cause harm to Honey.

It is humbly submitted before the court that imprisonment for life under Article 302 of DPC is
not harsh and excessive in connection with the said act.

It is humbly submitted that the appellants were aware of the fact that Honey was trapped
between the wheels of the car. Still, they choose to drive the car further and drag Honey.

It is evident from the statement of Kunali, Honey’s friend who was also a victim of this accident
and eye-witness.

Kunali stated that the person who was driving the car, got out and saw Honey being stuck in
the middle of the car. Still the driver got back into the car and chose to drive away.

It is clearly evident that if a person is trapped between the wheels of a car and the car is driven
for 12 to 13 kilometres the person will not survive and is likely to be dead.

This suffices the essential elements for imposing Section. 302 of DPC.

The essential elements to constitute murder are:

•The act is done with the intention to cause bodily injury and such bodily injury is likely to
result in death.

•If the act is done having proper knowledge that it will cause death, such an act shall be termed
as murder.

In the case of Gudar Dusadh vs State of Bihar 11, the Supreme Court held that the appellant
who caused the above injury to Ramlal deceased, in our opinion, was guilty of the offence of
murder and he has been rightly convicted under section 302 Indian Penal Code.

11
15 February, 1972

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The injury on the head was deliberate and not accidental and as the injury was sufficient in the
ordinary course of nature to cause death, the case against the appellant would fall squarely
within the ambit of clause “3rdly” of section 300 Indian Penal Code. According to that clause,
culpable homicide is murder if it is done with the intention of causing bodily injury to any
person and the, bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death.

So, the appellants have committed murder and are to be punished with life imprisonment or
death penalty with fine.

Hence, the sentence imposed by the Sessions Court is not harsh and excessive.

4.2 The sentence imposed on Hari, Kari, Sibu, and Kanaiya is not violative of Article 21
of the Constitution, which guarantees the right to life and personal liberty.

It is humbly submitted before the court that the sentence imposed on Hari, Kari, Sibu and
Kanaiya is not violative of Article 21 of the Constitution.

It is humbly submitted that they did commit the grave crime of murder. So, either death penalty
or life imprisonment is to be imposed on them.

Life imprisonment amounts to violation of the fundamental right to life and liberty unless it is
established according to procedure by law.

The Government of India Act, 1935 provided for the establishment of Article 21 of the Indian
Constitution. It declares that no person shall be deprived of his life or personal liberty except
according to the procedure established by law.

Article 21 reads:

“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”

Article 21 is at the heart of the Constitution. It is the most organic and progressive provision in
our living Constitution. Article 21 can be claimed when a person is deprived of his ‘life’ or
‘personal liberty’ by the ‘State’.

The conviction of the defendant under Section 302/279 and 34 of the DPC was based on
sufficient evidence that they had committed murder.

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The eye-witness Kunali also stated that the driver got out and saw her friend Honey stuck
between the wheels, still chose to sit back in the car and drive off.

Furthermore, the CCTV footage confirms that the four men Hari, Kari, Sibu and Kanaiya were
in the car at the time of accident.

Hence the sentence imposed on the defendant was not harsh and excessive. The life
imprisonment and fine of Rs. 5,00,000 imposed on the defendant is proportionate to the alleged
crime and does not violate their constitutional right to life and personal liberty.

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 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Hon’ble Court be pleased to:

1. Declare and adjudge that all four Appellants are liable under section 302, section 34 and
section 279 of the DPC and therefore be convicted of all charges.

2. Uphold the conviction of the Hon’ble Sessions Court.

AND/OR

Pass any other order, as it deems fit, in light of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Counsel on behalf of Respondent

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