State of Haryana v. Manna Wazare and others

ARGUMENTS ADVANCED

I. WHETHER DUSHYANT TEJIPAL AND MANNA WAZARE ARE GUILTY UNDER SECTION

307,326 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860?

I. GUILTY UNDER SECTION 326

Under section 326 of the Indian Penal Code voluntarily causing grievous hurt by dangerous

weapons or means1 is an offence punishable with 2[imprisonment for life] or with imprisonment

of either description for a term which may extend to ten years, and shall also be liable to fine.

This section applies only to a person who does a substantive act, causing grievous hurt, as

defined in section 320, by some dangerous weapon or means.3

For the commission of offence under section 326 of Indian Penal Code, the essential ingredient is

that the grievous hurt must be caused by means of an instrument of cutting,stabbing, shooting,

etc. The essential ingredients to attract section 326 are:

voluntarily causing hurt;

hurt caused must be a grievous hurt; and

the grievous hurt must have been caused by dangerous weapons or means.

To constitute an offence under under this section, the act of the offender must have been done

voluntarily.4 Even if death ensues, an offender can be held guilty under this section unless his

1 Bare Act; Indian Penal code, 1860:- voluntarily causing grievous hurt by dangerous weapons or means-

‘whoever,except in the case provided for by section 335, voluntarily causes grievous hurt by means of any

instrument for shooting, stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to

cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or

by means of any explosive substance, or by means of any substance which is deleterious to the human body to

inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished’2 Substituted by Act 26 of 1955, s 117 and schedule, for ‘transportation for life’ (wef 1 January 1956)3 Re Ram Sarup Rai 6 CWN 98.4 Balwant Singh v State of Haryana AIR 1972 863.

Page | 1

State of Haryana v. Manna Wazare and others

intention or knowledge is proved to be such as is required by section 300, or even by section 299,

and the injury inflicted is the direct cause of death.5

In the instant case where Dushyant Tejipal is charged under section 326 for causing grievous

hurt to Jaykant Shikre as it is clear from the circumstances in which Jaykant was found

unconscious with multiple interal injuries and Dushyant was reliably identified by eyewitnesses

coming out of his farmhouse just as the police arrived and Jaykant’s blood was also found on his

shirt. There are two instances in the case that clearly indicate that Dushyant is guilty under

section 326 one is the blood strains of Jaykant on his shirt and the other is Jaykant was found in

unconscious state with multiple injuries caused to him. The circumstances and facts of the case

are clear on Dushyant being the one who caused such injuries to Jaykant. So it is proved here

through the circumstances that Dushyant voluntarily caused grievous hurt to Jaykant and

multiple injuries were caused to him by one of the means mentioned in the section.

It is humbly submitted to the court that the accused Dushyant Tejipal is guilty under section 326

of the Indian Penal Code as it is proved from the circumstances in the case that he is the one who

intended to and voluntarily caused grievous hurt to Jaykant.

II. GUILTY UNDER SECTION 307:

Section 307 under Indian Penal Code talks about attempt to murder.6An attempt is an intended,

but unfinished crime tending but failing to effect its commission. Specific intention to commit

the crime of murder is a necessary requirement of this section. In so far as the offence relates to

an attempt, the overt act must necessarily be left unfinished because otherwise the prosecution

would be for the completed crime. Apart from the necessary mens rea, actus rea must be more

preliminary preparation.7 The attempt must be such that it would result in the commission of the

crime intended unless intervened by the intervention of extraneous circumstances, independent 5 Isher Das v State AIR 1954 J&K 19, p 21.6 Bare Act; Indian Penal code, 1860:- Attempt to murder - “whoever does an act with such intention or knowledge or

under such circumstances that, if he, by that act, caused death, he would be guilty of murder, shall be punished with

imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if

hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such

punishment as is hereinbefore mentioned.

Page | 2

State of Haryana v. Manna Wazare and others

of the will of the accused.8 So in order to constitute an offence under this section, it must be

established that the offender did an act (the actus rea) and that an act was accused by an

intention (the mens rea) to go further and to achieve a definite end, which is a specific crime,

namely, murder. Here the prosecution would like to establish both the elements of the crime by

proving that the accused did something, which, in point of law, would be an intention of the

commission of an offence and in taking the step, he was inspired by an intention to achive the

definite objective which constituted the particular crime.9

In the case of Bharat Dube v Emperor,10 it was observed that in order that an act should amount

to an attempt to murder, all that is necessary to prove is that, if the act had caused death, it would

have amounted to murder if it was done with such intention or knowledge as would be necessary

to be proved in the case of murder.

The fact that an act results in minor injuries or even no injuries at all, is not relevant for the

purpose of deciding whether it amounted to an attempt to murder. If, as a result of some injuries

caused to some vital parts of the victim, the possibility of death is not ruled out according to the

medical evidence, the evidence would fall within the purview of section 307.11 Under this

section, the intention precedes the act, and it should be proved independently of the act, and not

merely gathered from the consequences that ensue. All that is important to be established is the

intention with which the act is done, and if once that intention is established, the nature of the act

will be immaterial.12

To constitute an offence under section 307, two ingredients of the offence must be present:

An intention of or knowledge relating to commission of murder; and

The doing of an act towards it.13

The essential ingredients required to be proved in the case of an offence under section 307 are:7 Mohinder Singh v State AIR 1960 Punj 135

8 Moidu v State of Kerla (1967) Ker LT 223

9 Russel on Crime, 11th edn, p. 187; Mansuri Nizamuddin v state AIR 1955 Pat 330

10 AIR 1941 Pat 51

11 Kamlesh kumar Dixit v State (1981) Cr LJ (NOC) 92 (All)12 Ram Chander v State AIR 1960 Punj. 28213 Parsuram Pandey v State of Bihar (2004) Cr LJ 4978 (SC)

Page | 3

State of Haryana v. Manna Wazare and others

That the death of a human being was attempted;

That such death was attempted to be caused by, or in consequence of the act of the

accused;

That such act was done with the intention of causing death; or that it was done with the

intention of causing such bodily injury as (a) the accused knew to be likely to cause

death; or (b) was sufficient in the ordinary course of nature to cause death or that the

accused attempted to cause death by doing an act known to him to be so immediately

dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is

likely to cause death, the accused having no excuse for incurring the risk of causing such

death or injury.14

In the instant case, after Manna’s speech the charged crowd started to head towards Jaykant

Shikre’s farmhouse. Dushyant Tejipal, core team Manna member was directed to go to Jaykant

Shikre’s house by Manna himself. Manna’s clear intention to send Dushyant to his farmhouse

was to make sure that Jaykant Shikre is killed at the spot. The mere presence of Dushyant at his

farmhouse and creating the confusion and excitement among the crowd clears his intention to kill

Jaykant. He was very much aware of the situation at Jaykant’s farmhouse and his words “My

friends, Manna has spoken, this is it. It is now or never!” clearly show that his intention was to

provoke the crowd and to kill Jaykant.

At the time when police reached Jaykant’s farmhouse, the entire house was being ransacked and

Jaykant was found in an unconscious state with multiple internal injuries.15 Dushyant was

identified by the eyewitnesses present at the scene and he was seen coming out of his farmhouse

with the blood strains on his shirt which was later confirmed by the forensic examination that the

blood belonged to Jaykant. The blood strains on his shirt show that the act was committed by

him and he was the one who attempted to kill Jaykant. His act was done with the intention to

cause such bodily injury as he knew to be likely to cause death.

There are three stages in a crime, first is intention to commit crime which is clear in the instant

case that Dushyant had the intention to kill Jaykant, second is preparation to commit it, here

14 State of Maharastra v Kashirao (2003) Cr LJ 4464 (SC)15 Bare Act; Indian Penal code, 1860: Section 320- Grievious hurt- any hurt which endangers life or which causes

sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

Page | 4

State of Haryana v. Manna Wazare and others

Dushyant knew what is to be done to kill him and was prepared for it and the third is an attempt

to commit it which he attempted but because of some unavoidable intervention did not succeed.

If at the third stage, the attempt fails, the aim is not complete but law punishes for attempting the

same.16 Here in this case Dushyant failed at the third stage and his attempt to kill Jaykant cannot

be ignored. The Supreme Court in Abhayanand Mishra v State of Bihar,17 observed:

A person commits the offence of ‘attempt to commit a particular offence’ when

i. he intends to commit that particular offence and

ii. he, having made preparations and with the intention to commit the offence, does

an act towards its commission; such an act need not be penultimate act towards

the commission of that offence, but must be an act during the course of

committing that offence.18

Dushyant Tejipal was fully prepared and he took the take advantage of the situation and

circumstances that were intentionally created by him in order to kill Jaykant, though failing in his

act is guilty under section 307 of Indian Penal code, 1860.

In order to bring this case within the ambit of Section 307, the prosecution would like to make

out the facts and circumstances envisaged by Section 300.19 Here the ingredients of Section 300

are not lacking as the intention (or knowledge) of Dushyant was to cause such bodily injury as it

would come within one of the four clauses of section 300, so he is to be held guilty under section

307.20

The prosecution humbly submits that the offence was committed under Section 307 of Indian

Penal Code, 1860 as the clear intention and knowledge of Dushyant Tejipal was to kill Jaykant

and from the surrounding circumstances it is established that the offence was committed by

Dushyant with an intention to go further and to achieve a definite end. Here both the elements of

crime are clear, his intention was preceded his act.

16 Sagayan v State of Karnataka (2000) Cr LJ 3182 (SC)17 AIR 1961 SC 1698 reaffirmed in Om Prakash v State of Punjab AIR 1961 SC 178218 State of Maharastra v Mohd Yakub AIR 1980 SC 513, p 158.19 20 Naran Swain v State (1981) Cr LJ 106, p 110 (MP High Court Notes) 106.

Page | 5

State of Haryana v. Manna Wazare and others

iii. COMMON INTENTION OF MANNA WAZARE AND DUSHYANT TEJIPAL

UNDER SECTION 34 OF INDIAN PENAL CODE, 1860:

Section 3421 of the Indian Penal Act, 1860 talks about the acts done by several persons in

furtherance of common intention.22 This section has been enacted on the principle of joint

liability in doing of a criminal act. The liability of one person for an offence committed by

another in the course of criminal act perpetrated by several persons arises under section 34 if

such criminal act is done in furtherance of a common intention of the persons to join in

committing the crime.23 When such acts are done in furtherance of the common intention, each

person is liable for the result of them as if he had done them himself.24

The leading feature of this section is participation in action: a common intention connotes

meeting of minds to commit an offence and participation in the commission of offence in

furtherance of that common intention. Participation need not be by physical presence.

Two essential requirements to be satisfied for the applicability of section 34 are:

Existence of common intention in several persons, who commit the criminal act,

and

The doing of the criminal act in furtherance of the common intention.

When these two requirements are satisfied, each of such persons is liable for the entire criminal

act in the same manner as if he alone had done it irrespective of the fact whether he was present

at the spot or not. Thus the essence of section 34 is a simultaneous consensus of the minds of the

persons participating in the criminal action to bring about a particular result.25 For applicability

of this section the prosecution is required to prove prior meeting of minds or a prior concert or a

21 Substituted by Act 27 of 1870, s 1, for the original section.22 Bare Act; Indian Penal code, 1860: Section 34- 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 by him alone.]23 Surinder Singh alias Chhinda v State of Punjab (2007) Cr LJ 49 (SC)24 Barendra Kumar Ghose v King-Emperor AIR 1925 PC 1,p 7 also see Dhansai Sahu v State AIR 1969 Ori 10525 Arjun Thakur v State (1994) Cr LJ 3526 (SC)

Page | 6

State of Haryana v. Manna Wazare and others

pre-arranged plaint.26 To invoke the aid of this section successfully, it must be shown that the

criminal act, complained of was done by one of the accused persons in furtherance of the

common intention of all; if this shown, then the liability for the crime may be imposed on any

one of the persons in the same manner as if the act was done by him alone. This being the

principle, the common intention within the meaning of the 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.27

There are two Principals in Crime :

Those who actually commit the crime i.e. principals in the first degree;

Those who aid in the actual commission i.e. principals in the second degree;

Principle of joint liability: Section 34 embodies this principle on doing of a criminal act, the

essence of that liability being the existence of common intention. Participation in the commission

of the offence in furtherance of the common intention invites its application.28 The leading

feature of this section is, therefore, ‘participation in action’.29 A particular criminal act, done by

an individual, in order to constitute a constructive liability against others, must be one which is

done, in furtherance of a common intention, as a aid to attain it.

Doctrine of combination of crime: According to this doctrine, “when two or more persons

unite to accomplish a criminal object, whether through the physical violation of one, or of all,

proceeding severally or collectively, each individual whose will contributed to the wrong-doing

is in law responsible for the whole, the same as though performed by himself alone.”

The vicarious or constructive liability under section 34 of IPC can arise only where the two

conditions stand fulfilled:

The mental element, called the intention to commit the criminal act conjointly with

another or others; and

Actual participation in one form or the other in the commission of the offence.

26 Megh Singh v State of Rajasthan (1983) 2 Crimes 134, p 140 (Raj)(DB)27 Kartar Singh v State of Haryana (1992) 1 Crimes 924, pp 929-930 (P&H) 28 Noor Mahommad Mohd Yusuf Momin v State of Maharastra AIR 1971 SC 885.29 Barendra Kumar Ghosh v King-Emperor AIR 1925 PC 1

Page | 7

State of Haryana v. Manna Wazare and others

The Kerala High Court, in Mathai v state of Kerala,30 has held that section 34 does not, by itself,

create an offence; it only lays down the rule of law without creating a definite head of

criminality. And in Barendra Kumar Ghosh v King Emperor31 Privy council pointed out that

‘section 34 deals with doing of separate acts, similar or diverse, by several persons; if all are

done in furtherance of a common intention, each person is liable for the result of them all, as if

he had done them himself’

In the instant case Manna Wazare’s intentions are clear and Dushyant Tejipal shared the

common intention with Manna as he participated in the commission of the act. The common

intention here in this case was to kill Jaykant, his intention can be clearly interpreted in his

speech where he was continuously provoking the crowd to remove Jaykant from the equation

completely. In his speech he told how Jaykant was involved in human trafficking and was the

kingpin behind the drugs and prostitution rackets. He clearly revealed his intentions in his speech

as while addressing the crowd he said that “this evil must be killed.” He in his speech purposely

mentioned Jaykant’s farmhouse address with a motive that people should go to his place and kill

him. He wanted people to act for him. Seeing that he was able to convince the crowd to head

towards Jaykant’s farmhouse he according to his plan called Dushyant who shared the common

intention with him asked him to go to his farmhouse and act accordingly. Dushyant’s

participation in the commission of act was in furtherance of the common intention of Manna

make them liable under section 307, 326 read with section 34 of IPC.

It is humbly submitted to the court that in the instant case both the essential requirements are

satisfied for applicability of section 34 of IPC and according to principle of joint liability and

doctrine of combination of crime both Manna Wazare and Dushyant Tejipal are guilty under

section 307 and 326 when read with section 34 of Indian Penal Code,1860.

30 (1983) 1 Crimes 42931 AIR 1925 PC 1

Page | 8

State of Haryana v. Manna Wazare and others

Page | 9