That the accused (A-1) and co-accused (A-2) are guilty of murder

It is humbly submitted that the culpability of Accused-1 and Accused-2 is clearly established in
terms of both Actus reus and Mens rea.
I. Actus Reus- It is humbly submitted that the act was done with an intention of causing such
bodily injury as is likely to cause death
a) Injury on head likely to cause death
The word likely to cause death means probably not possibly and the word sufficient in
the ordinary course of nature means that the death will be most probable result. 1 The postmortem report states that the injuries on the head were not sufficient to cause death. In
Reg v Govinda2, it was held that a blow from the fist or a stick on a vital part may be
likely to cause death and a wound from a sword in a vital part is sufficient in the ordinary
course of nature to cause death.
It is humbly submitted that it may be true that only because one blow with steel waterbottle was hurled, the same by itself may be a ground to arrive at a conclusion that the
injury inflicted was not sufficient to cause death but in a case of this nature the entire
attending circumstances must be taken into consideration for the purpose of finding out
the nature of the actual offence committed. The accused has hit on the head of the
deceased with such force that he fell down awkwardly and thereby hit his head on the

1 Kesar Singh v State of Haryana, (2008) 15 SCC 753

2 (1877) ILR 1 Bom 342

pavement. It is a case of severe Traumatic Brain Injury (T.B.I.) which results in extended
loss of consciousness and slow breathing rate.3
Therefore the injury inflicted on the head was likely or a probable to cause death.
b) Death is caused by illegal omission to provide medical aidSection 32 of Indian Penal Code4 refers to acts done extend also to illegal omissions and
the word illegal is applicable to everything which is an offence or which is prohibited
by law or which furnishes ground for a civil action.5
In an English case6, the facts were that the accused assaulted a woman, violently threw
her on the ground and as a result she became unconscious. He then permitted her to lie on
the ground, exposed to the inclemency of the weather and neglected and refused to
provide her with necessary clothing, shelter and protection and by reason of which assault
and exposure she died. In these circumstances, it was held that the accused would be
guilty of murder, and it was immaterial whether she was his wife or not. A person
therefore, can be guilty of murder by doing nothing. Exposure of a person to the
unpropitious elements, towards whom, the accused owed a duly of protection may
amount to murder or manslaughter according to the circumstances.
3 Traumatic Brain Injury http://www.aans.org/patient%20information/conditions%20and%20treatments/
traumatic%20brain%20injury.aspx, accessed on September 23, 2016
4 In every part of this Code, except where a contrary intention appears from the context, words which
refer to acts done extend also to illegal omissions.
5 Section 42 Indian Penal Code
6 State v. Rees, 107 Pacific Reporter 893; State v. Behm, 34 NWR 319

In a decided case7 it was held that where the death of an aged and infirm woman is caused
by confining her against her will, and not providing her with food, appeal and medicines
and other necessaries, in breach of an alleged duty, if the neglect is so wilful and gross as
to warrant the inference, that the person confining contemplated her death, such a
person was guilty of murder.
To determine whether an act is an act of illegal omission following elements need to be
satisfied
(1) a duty of care, owed by the accused, and its consequent breach;
(2) Foreseeability of the likely consequence of such breach;
(3) the nature and degree of risk of causing death or bodily harm;
(4) The co-relationship between the degree of risk and the culpability of the
accused is directly proportionate. In other words higher the degree of risk, the
greater blameworthiness of the acts for the consequence.
(5) the consequence i.e. death, bodily harm or simple hurt, determines the
criminality of the action.8
Criminal law fastens liability on persons who omit to perform the duty required by law
such as to provide food, clothing, shelter, or medical aid to another, but a refusal to
perform acts of mere charity or mercy, not coupled with a legal duty, does not entail legal

7 R v Marriott, (1838) 8 C and P 425

8 O.N.Kaul Vs. State, Delhi High Court, 4 March, 2013

punishment even if death ensues from such refusal or neglect. 9 Here the accused
themselves were perpetrators of the crime, therefore the argument that no legal obligation
lies on them to provide medical care does not stand.
It is submitted that in the present case, omission to provide medical aid ought to be
punished in exactly the same manner in which acts are punished. After striking the
deceased on head, the accused and co-accused willfully omit to call for any medical aid.
Moreover, they get rid of the dead body of the deceased by throwing it into rain drain in
order to hide themselves from obvious consequences of criminal liability.
c) That the alleged act of causing is result of same transactionSection 33, IPC states that the word act denotes as well a series of act as a single act. It
means that the word act includes not only a single act but a series of act which together
constitutes one transaction. The Apex Court in the case of Mohan Baitha v State of Bihar has
said:
The expression same transaction from its very nature is incapable of exact definition. It is
not intended to be interpreted in any artificial or technical sense. Common sense and the
ordinary use of language must decide whether on the facts of a particular case, something can
be held to be one transaction. It is not possible to enunciate any comprehensive formula of
universal application for the purpose of determining whether two or more acts constitute the
same transaction. But the circumstances of a given case indicating proximity of time, unity
or proximity of place, continuity of action and community of purpose of design are the
factors for deciding whether certain acts from parts of the same transaction or not. Therefore,
a series of acts which are so connected together as to form the same transaction is purely a
question of fact to be decided on the facts. The real and substantial test by which to
9 Om Parkash Tilak Chand vs The State, AIR 1959 P H 134

determine whether several offences are so connected as to form the same transaction depends
on whether they are so related to each other in point of purpose or as a cause and effect or as
principal and subsidiary acts to constitute one continuous action.
In the case at hand, the accused persons had committed two acts. One was pulling the carrier
of the cycle of the deceased when he starting paddling his cycle to home as the he did not
agree to accompany them to the Leisure Valley and hitting the deceased on head with a steel
water bottle due to which he fell down and his head hit the pavement and he became
unconscious and the second was in throwing the body of deceased in the rain drain passing
near the Leisure Valley. The act of causing death need not necessarily be by a single act and it
may be by a series of acts which, as defined in Section 33 of IPC, may constitute a single act.
In a decided case, four defendants intended to kill their victim so they induced him to
consume alcohol, struck him on the head and threw the "body" over a cliff to make the death
appear accidental. Because they thought that the blow had killed him, there was no mens rea
when they abandoned him and he died from exposure. The first act did not cause death but
had the appropriate mens rea. The second act caused death but had no mens rea. But the
Privy Council held that it was impossible to divide up what was really one transaction. The
actus reus was said to be the series of acts and omissions with mens rea covering the initial
stages.
In the Privy Council case10, the appellants in accordance with a preconceived plan to kill took
a man to a hut, gave him beer so that he was partially intoxicated and then hit him on the
head. They then believing him to be dead rolled him over a low cliff, dressing up the scene to
10 (1954) 1 All ER 373 (PC)

make it look like an accident. The medical evidence disclosed that the deceased was alive,
though unconscious when he was left at the foot of the cliff and that he died of exposure. The
appellants, who were convicted of murder, argued before the Privy Council that there was
absence of menses or intention to kill from the point of time the appellants thought that the
man was already dead and, therefore, they could not be convicted of murder. In rejecting this
argument Lord Reid said that "it was impossible to divide up what was really one series of
acts" and that the crime was not reduced from murder to a lesser crime merely because the
accused were under some misapprehension for a time during the completion of their criminal
plot. In these cases the accused intends to kill and does kill; his only mistake is as to the
precise moment of death and as to the precise act that effects death. Ordinary ideas of justice
and commonsense require that such a case shall be treated as murder.
In a case11, where the accused believe the victim to be dead, hangs him to death, the Honble
High Court held that Whatever may be the outcome when the accused believes the victim to
be dead, we have no doubt that it would be clearly murder if the accused with the
knowledge that the victim is alive hangs him with the object of concealing the earlier
crime. Similarly, we have no doubt that if the accused, unmindful- of whether the victim is
alive or dead hangs him and thereby causes his death, the accused must be attributed the
knowledge that he may by the act of hanging was likely to cause death. On the facts of the
instant case the accused, to begin with, had only the intention of causing grievous hurt, but
when the deceased became unconscious they became panicky and, unmindful of whether
the deceased was alive or dead, they hanged him causing his death. In hanging the
deceased, the accused must be attributed the knowledge that they were likely to cause

11 Sarthi vs State Of Madhya Pradesh, 1976 CriLJ 594

death. The accused although not liable for the offence of murder are clearly liable to be
punished for the offence under Section 304.
It is submitted that the first act of hitting the deceased with the steel bottle was done with
the intention of causing such bodily injury as is likely to cause death and believing that out of
the first act, the deceased died, imputes knowledge of the principal act though factually, the
death was caused only by the second act of throwing the deceased into rain drain which is a
subsidiary act i.e., in continuation of the principal act without any intervention of any
subsequent cause, was done with the motive of doing away with the evidence of their crime.
Thus, proximity of time and the continuity of purpose stands established. Therefore both the
acts form part of the same transaction and constitute a single act within the meaning of
section 33, IPC.

II. Mens rea- That the accused and co-accused are doli capax for the following reasonsa) Presence of Motive- Evidence of motive becomes important when a case depends
upon circumstantial evidence only. Motive is a relevant fact under section 8 and
section 14 of the Indian Evidence Act. Motive is something which prompts a
person to form an intention to do certain illegal act to achieve that intention. If a
man knows that a certain consequence will follow from his act, it must be
presumed in law that he intended that consequence to take place. Motive though
not a sine qua non for bringing the offence home to the accused, is relevant on the
question of intention.12
In the present case, the deceased complained regarding the unlawful activities of the
accused and co-accused to their parents. When parents failed to take any strict action, the
12 Chandar Pal v State, 1999 CrLJ 135

deceased complained to elder brother of Accused-2, who scolded them for their criminal
activities. As a result, Accused-1 told Accused-2 that they should teach the deceased a
lesson. Also, when the deceased expressed his refusal to go to leisure valley, the Accused
got enraged as the deceased was obstructing their design to teach him a lesson and thus
the violent assault happened.
b) Hitting with Steel water-bottle:
A deadly weapon means one which is likely to produce death or great bodily harm. 13
Steel water-bottle though seems like a harmless childrens article is capable of being as
deadly as a club14 or pestle15.
Moreover, the injury has been caused on vital part of the body. It has been held 16 that the
part of the body on which the injury is caused is relevant to determine the intentional
injury which must be sufficient to cause death in the ordinary course of nature. If the
intended injury cannot be said to be sufficient in the ordinary course of nature to cause
death, that is to say, the probability of death is not so high, the offence does not fall
within murder but within culpable homicide not amounting to murder.

c) Intention to cause bodily injury likely to cause deathIntention connotes a conscious state in which mental faculties are roused into activity and
summed into action for the deliberate purpose of being directed towards a particular and
specific end which the human mind conceives and perceives before itself.17
13 People v. Fuqua, 58 Cal. 245
14 Venkatesha S/O Hanumagaouda vs The State Of Karnataka, Karnataka High Court, 23 July, 2015
15 Mr vs State Of Punjab, Punjab and Haryana High Court, 13 May, 2011
16 Rajmangal Singh vs Ramnath Singh And Ors., 1968 CriLJ 568
17 Kesar Singh v State of Haryana, (2008) 15 SCC 753

Belief is an assurance gained by evidence, and from other persons.18 The argument that it
is an act was done devoid of requisite intention does not sustains itself because it is only
where death is attributed to an injury which the offender did not know would endanger
life or would be likely to cause death and which in normal conditions would not do so
notwithstanding death being caused that the offence will not be culpable homicide but
grievous hurt. Every such case depends upon the existence of abnormal conditions
unknown to the person inflicting the injury.19
In the present case, the accused and co-accused has hit the deceased on head and after
ensuring that the victim is dead, they directed their effort towards concealing their crime
by throwing the dead body in the river drain passing near the leisure valley.

18 Black's Law Dictionary, accessed http://thelawdictionary.org/belief/ on September 22,2016 at 10

PM
19 Bia Jiba, (1967) 19 Bom LR 823