IN THE HIGH COURT OF JUDICATURE

Case filed under Section _______ of CrPC

MEMORIAL ON BEHALF OF THE RESPONDENT IN C.C. NO. _____________ OF

2017

Criminal Petition No. of 2017

Mr. Y..................................................................Appellant

v.

State...................................................................Defendant

Memorandum on behalf of Respondent

Reliable Institute of Law, Morta Ghaziabad

______________________________________________________________________________
 STATEMENT OF JURISDICTION

THE HONBLE HIGH COURT OF JUDICATURE AT BOMBAY EXERCISES

JURISDICTION TO HEAR AND ADJUDICATE OVER THE MATTER UNDER SECTION
374 OF CrPC, 1973

Section 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 1
[has been passed against him or against any other person convicted at the same trial; 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 Magistrate

of the first class or of the second class, 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.

 FACT OF THE CASE

POINTS-WISE

1. X & Y Come to Ghaziabad in search of a job from a remote village in Bihar and jointly took a
small house on rent in Sihani Village in Ghaziabad.

2. One day X had a heavy argument with A, B, C&D. They threatened him to teach a lesson very
soon.

3. After about two days of the above mentioned incident, at about 11:00 pm in the night, when
both X & Y were about to go to bed someone knocked their door X opened the door and
immediately A, B, C&D entered the house.

4. They were armed with deadly weapons which includes a pistol and two knives.

5. They pulled down X on the floor and asked Y to help them to kill X or do whatever they
would ask them to do.

6. They then asked Y to hold the legs of X tightly at the gunpoint. Y did the same and then A&B
hold the hands of X, which made impossible for X to even move an inch C&D then inflicted
blows on X with the sword and X died almost immediately.

7. Y was then forced by the other accused to help them dispose of the dead body in a near tunnel.

8. All the accused were convicted by the session court for the offence of murder, rioting,
concealment and sentence accordingly in the session court.

Important Point of Session Court Judgment

The Accused Y was claiming for General Defenses against the aforesaid act which was done
under compulsion by all accused. The statement recorded under S. 161 CrPC of Accused A, B,
C and D which is on record in Session Court disclose the raw intention of Y that Y helped them
to kill X on our directions it was clubbed with common intention at the end
 ISSUE RAISED

Q.1 Whether this appeal maintainable or not in High Court?

Q.2 Whether the sentence of conviction by Session Court against Y is impugned or not?
 ARGUMENT ADVANCE

Q. Whether this appeal maintainable or not in High Court?

It is humbly contended before the Hon'ble High Court of Judicature that the instant
Criminal Appeal filed by the Mr. Y[Hereinafter referred to as the appellant] is not
maintainable. It is submitted that the Session Court passed a detail judgment by taken
into consideration the evidence on record and passed a judgment against Mr. Y while
considering all laws of land.

It is humbly contended before the Hon'ble High Court of Judicature that Chapter XXIX
of Criminal Procedure Code relates to appeals. Under Section 372 of Cr.P.C. no appeal
shall lie unless otherwise provided for by this Code or by any other law for the time-
being in force.

It is humbly contended before the Hon'ble High Court of Judicature that under Section
374(2) of Cr.P.C. "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 against any
other person convicted at the same trial, may appeal to the High Court" is not
maintainable because as per Para 5 clearly stated that all accused request for help from
the appellant which clearly depict intention of the appellant.

It is humbly contended before the Hon'ble High Court of Judicature that under Section
374(3) of Cr.P.C. any person 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
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, save as otherwise provided in Sub-section 374(2) Cr.P.C. may appeal to the
Court of Sessions. In the instant case Right to Appeal is the right which Mr. Y has
whereas the Question of Law involve in this Appeal has no scope because Common
 intention on the part of Mr. Y clearly depict because no harm/ injury was incurred by the
Appellant.

It is humbly contended before the Hon'ble High Court of Judicature that in this instant
case at the instance of the Appellant (accused), the appeal against the order of conviction
of Sessions Court is not maintainable before the High Court under Section 374(2) Cr.P.C.
shall be disposed off with higher sentence on conviction.

It is humbly contended before the Hon'ble High Court of Judicature that the instant case,
original accused- Y was convicted of the offences of murder, rioting, concealment i.e. u/s
302, 148 and 201 of the IPC and sentenced accordingly. Therefore, it is submitted by the
Counsel that in the instant case, the appeal was not maintainable at the instance of the
Appellant (the original accused) under Section 374(2) of Cr.P.C.

It is humbly contended before the Hon'ble High Court of Judicature that Section 302
IPC clearly enunciates the conviction of accused on the sole basis of substantive
intention of accused i.e. Mens Rea whereas in the present case the appellant done all the
Actus Rea under common intention which is proved by fact sheet in which the Appellant
never try to save the deceased person(Mr. X) as well as join the act with all other
accused.

It is humbly contended before the Hon'ble High Court of Judicature that Mahatma
Gandhi principle of Justice that: "We win justice quickest by rendering justice to the
other party.", on the solely basis of this statement by Eminent person the conviction by
Session Court shall be upheld because in the judgment Trial Court made no error prove
the case beyond the reasonable doubt.
Q. II WHETHER THE SENTENCE OF CONVICTION BY THE SESSION COURT
AGAINST Y IS IMPUGNED OR NOT?

It is humbly contended before the Hon'ble High Court of Judicature that the accused were
armed with deadly weapons which includes a pistol and two knives clearly mentioned in fact
sheet Para 4 whereas Session Court finding that the murder done with sword as mentioned in
Para 6 which may belongs to the Appellant which shown Mala-Fide intention of the Accused.

It is humbly contended before the Hon'ble High Court of Judicature that under section 300
IPC that -
"Murder.Except in the cases hereinafter excepted, culpable homicide is murder, if the act
by which the death is caused is done with the intention of causing death, or
(Secondly) If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or
(Thirdly) 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, or
(Fourthly) If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder."

It is humbly contended before the Hon'ble High Court of Judicature that under Section 34 in
The Indian Penal Code:
"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" meaning thereby the
existence of common intention is a question of fact which shall be raise in Session Court. In
the present case as per Fact-Sheet the accused never forced the Appellant rather they request
to join the Actus which clearly depict the common intention of the Appellant.
It is humbly contended before the Hon'ble High Court of Judicature that as per Para 7 of Fact
Sheet regarding disposing of deceased body in tunnel which is a public place if the Appellant
 wanted to save himself the appellant shall raise the alarm but there is no such evidence on
record.
It is humbly contended before the Hon'ble High Court of Judicature that both the ingredient
of section 34 IPC fulfilled are as follows:
"i. there was common intention in the sense of a per-arranged plan;
ii. the person sought to be held liable in some manner in the act constituting the offence."
In the present case point no. (i) is proved when all accused ask for help from the Appellant
and without any hindrance give his acceptance. The point no. 2 clearly depict through fact
sheet the assistance provided by the appellant to the accused persons as mentioned in Para 6;
Para7.
It is humbly contended before the Hon'ble High Court of Judicature that the ratio of decision
in Omkar Namdev Jadhao v. Second Additional Sessions Judge 1996 (7) SCC 498 stated
" CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 16 It is seen that
the observation made by the Sessions Judge, as confirmed by the Bombay High Court,
Nagpur Bench in the impugned Judgment dated 10.3.1992 made in Criminal Application No.
20/91 is based on Section 161 statements recorded during the investigation. Admittedly, no
evidence has been recorded. The court should not come to the conclusion on the basis of
Section 161 statements which are not evidence." the Appellant in his appeal relied upon the
statement of S. 161 Cr.P.C. which is not considerable.
 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent (State) humbly prays that the Honble Court be pleased to adjudge, hold and declare:

1. That, the appeal filed is not maintainable in this court of law;

2. That, the judgment of the Sessions Court shall be upheld and maximum rigorous
imprisonment shall be given to accused person;

And pass any order that this Honble court may deem fit in the interest of equity, justice and
good conscience. And for this act of kindness, the counsel for the Respondent shall duty
bound forever pray.