TEAM CODE: III_P_28

INTRA FACULTY MOOT COURT COMPETITION, 2018

IN THE HON’BLE SESSIONS COURT

DISCHARGE APPLICATION: U/S 239 Cr.P.C.

CASE CONCERNING THE CHARGES OF ATTEMPT TO MURDER, MISCHIEF,

MISCHIEF COMMITTED AFTER PREPARATION OF CAUSING DEATH, AND
CRIMINAL INTIMIDATION.

-: IN THE MATTERS 0F:-

MR. THANOS………………………………………………………………….. PETITIONER

VERSUS

STATE………………………………………………………………………….. RESPONDENT

MEMORIAL ON BEHALF OF THE APPLICANT DRAWN AND FILED BY THE

COUNSEL OF THE APPLICANT.
 TABLE OF CONTENTS.

 INDEX OF AUTHORITIES………………………………………………………

 LIST OF ABBREVIATIONS…………………………………………………….

 STATEMENT OF JURISDICTION…………………………………………….

 STATEMENT OF FACTS……………………………………………………….

 QUESTIONS PRESENTED…………………………………………………….

 SUMMARY OF ARGUMENTS……………………………………………….

 ARGUMENTS ADVANCED……………………………………………………

 1. Whether the police report u/s 173(2) Cr.P.C. discloses sufficient material
to proceed against the accused u/s 307 IPC? …………………………………

 2. Whether the police report u/s 173(2) Cr.P.C. discloses sufficient material
to proceed against then accused u/s 426,40.506 IPC?......................................

 3. Whether the police report u/s 173(2) Cr.P.C. discloses sufficient material
to initiate trial of the accused person? ………………………………………

 4. If the application for Discharge is dismissed what charges can be framed

against the accused Mr. Thanos ? ……………………………………………

 PRAYER FOR RELIF……………………………………………………....................

2|Page
 INTRA FACULTY MOOT COURT COMPETITION, UNIVERSITY OF ALLAHABAD

INDEX OF AUTHORITIES

 LIST OF CASES:-

 State of U.P. V. Indrajeet

 Maharashtra v. Balram Patil 1983 CrLJ 331(SC)

 Hari Singh v. sukhbir Singh 1988 AIR 2127,1988 SCR SUpl.( 2) 571

 R v. Shivpuri

 Gajodhar v. state of U.P. 1971 Cr.LJ (36) (ALL)

 Motilal ( 1901) 24 ALL 155,156

 Jambulingam pillai v. ponnuswami pillai

 State V. Pradeep Solankli & Anr.

 Mohinder singh v. State 1993 Cr.LJ 85 (P&H)

 Innacio manuel mirand v. State of Goa 1999 Cr.LJ 422

 State v.pradeep solanki & anr.

 Hari kishan & anr. V. sukhbir singh and ors. 1988 AIR 2127,1988SRC Supl.(2) 571.

 LIST OF STATUTES/RULES :-

 INDIAN PENAL CODE,1860.

 CODE OF CIVIL PROCEDURE,1973.
 THE PROBATION OF OFFENDERS ACT,1958

 BOOKS AND COMMENTIES :-

 Ratanlal and dheerajlal’s CODE OF CRIMINAL PROCEDURE ,

(22nd edition)

 Ratanlal and dheerajlal’s commentary on INDIAN PENAL CODE,

(34th edition) volume 2.

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INTRA FACULTY MOOT COURT COMPETITION, UNIVERSITY OF ALLAHABAD

 S.N.Mishra’s , Indian penal code (20th edition)

 S.K.Sarvaria’s R.A.Nelson’s INDIAN PENAL CODE 2ND VOLUME

 B.M.Gandhi’s INDIAN PENAL CODE ( 4TH EDITION)

 K.D.Gaur’s universal Indian penal code (6th edition)

 DICTIONARIES REFERRED:-

 Bryan A. Garner’s Black Law’s Dictionary, (10th edition)

 P. Ramanatha Aiyar’s , Concise law Dictionary.

 ELECTRONIC MEDIA:-

 www.indiankannon.com (last accessed on 7th November,2018 10.04

A.M)

 www.scconline.com (last accessed on 8th November, 2018 12.56

P.M.)

 www.lawmantra.co.in (last accessed on31st October,2018 7.40

A.M)

 www.legalservicesindia.com (last accessed on 1st November 2018,

6.45 P.M)

 www.thehindu.com( last accessed on 6th November 2018, 9.45

P.M.)

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 INTRA FACULTY MOOT COURT COMPETITION, UNIVERSITY OF ALLAHABAD

LIST OF ABBREVIATIONS

AND
&

sec. section

honb’le HONOURABLE

page
pg.

sc supreme court

scc supreme court cases

u/s under section

v. versus

supplementary
supp.

scr. supreme court report

justice
j.

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INTRA FACULTY MOOT COURT COMPETITION, UNIVERSITY OF ALLAHABAD

ld. learned

sec. section

volume
vol.

ors. others

crpc. code of criminal prcedure

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 INTRA FACULTY MOOT COURT COMPETITION, UNIVERSITY OF ALLAHABAD

STATMENT OF JURISDICTION

The Applicant has the honour to submit before the Hon’ble Court of Sessions, the petition
invokes the jurisdiction of this court under sec.261 of the Cr.P.C.
The memorandum for the applicant is a discharge application filed by the petitioner under sec
2392 Cr.P.C.

1
Section 26 in The Code Of Criminal Procedure, 1973
26. Courts by which offences are triable. Subject to the other provisions of this Code,-
(a) any offence under the Indian Penal Code (45 of 1860 ), may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such
Court and when no Court is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable

2
Section 239 in The Code Of Criminal Procedure, 1973
239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under
section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving
the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused, and record his reasons for so doing

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STATMENT OF FACTS

1. Mr. D.D.Thomas is MS (Crdio) and a doctor in the hospital Infinity Care. There are three
other members in his family, his wife Mrs. Anastasia who is a gynecologist in the same
hospital his son Odin(19 years) who is preparing for his medical entrance examination
and a daughter, Diana who is a minor and has her 10th board examination in 2019.

2. Odin has been trying for get through the medical entrance exam from two years but has
however failed he is undertaking coaching from a very reputed institute, Medzee
Excellence , Odin was a young , handsome man yet looked pale white in colour due to
Ventricular Septal Defect. Odin was romantically engaged with a girl named Aaradhya
who was from his coaching institute. The relationship between both slowly fostered as
they got a lot of time to spend with each other.

3. On 30th September 2018, it was Odin’s 20th birthday Mrs. Anastasia planned to surprise
Odin by coming home early when she unlocked the door and entered the house she found
Odin and Aaradhya in compromising situation. Ms. Aaradhya was asked to leave the
house immediately and Odin was house locked. He requested Anastasia not to tell about
this to Mr. Thanos and he sweared in the name of god that he will never ever
romantically engage in any relation.

4. On3rd October 2018 Mr. Thanos was having lunch with his colleagues where one of his
acquaintance with whoom he was having bitter relationship told him about the event
happened btwen his son Odin and Aaradhya in front of everyone,In fire &
fury he called Odin and said that he was aware what all happened between both of that he
has brought utter disgrace to his family and he is coming home right now to give him
appropriate reward for the same.

5. Mr. Thanos reaches home in abut one hour at 4.30 PM due to peak hour of traffic,
thereby took a knife which was lying near the kitchen admeasuring 9.0” and 1.9” wide
brages into the room of Odin where he found him sleeping, he saw the photo frame
carrying the picture of Odin and Aaradhya and in madness breaks the same and other
personal belongings of Odin and thereafter stabs the knife in Odin’s abdominal area for 5
times.

6. The domestic help calls the police and the ambulance for immediate assistance. Thanos is
arrested and FIR is registered u/s. 302,426,440 & 506 IPC and Sec.25 of the ARMS
ACT, 1959.

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7. In the Post Mortem report of the body of Odin it was found that Odin died between
3:15-3:45 PM by heart attack and the stabs of the wound are not ante -mortem
injuries .

8. The charge sheet is filed by the police u/s 307, 426,440& 506 of IPC, the matter is
committed by the CJM to the Court of Sessions and the prosecution has opened the
case. Discharge Application is moved by the accused Mr. Thanos through his advocate.

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STATMENT OF ISSUE

ISSUE 01: WHETHER POLICE REPORT U/S 173 (2) Cr.P.C DISCLOSES
SUFFICIENT MATERIAL TO PROCEED AGAINST THE ACCUSED
U/S 307 IPC?

ISSUE 02: WHETHER POLICE REPORT U/S 173(2) Cr.P.C DISCLOSES

SUFFICIENT MATERIAL TO PROCEED AGAINST THE ACCUSED
U/S 426 440 & 506 IPC?

ISSUE 03: WHETHER POLICE REPORT U/S 173 (2) Cr.P.C DISCLOSES SUFFICIENT
MATERIAL TO INITIATE TRIAL OF THE ACCUSED PERSON ?

ISSUE 04: IF THE APPLICATION FOR DISCHARGE IS DISMISSED, WHAT

CHARGES CAN BE FRAMED AGAINST THE ACCUSED MR.THANOS?

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SUMMARY OF ARGUMENTS

ISSUE O1. WHETHER THE POLICE REPORT U/S 173(2) Cr.P.C DISCLOSES
SUFFICIENT MATERIAL TO PROCEED AGAINST THE ACCUSED U/S 307 IPC?

It is humbly submitted before the hon’ble court that the police report u/s 173(2)Cr.P.C
does not provide sufficient material to proceed against the accused u/s 307 IPC. Intention and
Knowledge are two most important ingredient for sec 307 to constitute which however is absent
in the present scanerio, morever this case is a result of grave and sudden provocation which
aggravated Mr. Thanos , Intention and knowledge of the accused must be such as is necessary to
constitute murder,and the intention of the accused is to be gathered by all circumstances and not
merely by the consequences that ensue. It is also to be noticed that the mental background
created by the previous act of the victim shall also be taken into consideration in ascertaining
whether the subsequent act caused grave and sudden provocation for committing the offence.
Thus the basic elements of sec 307 is not fulfilled to proced against the accused.

ISSUE 02. WHETHER THE POLICE REPORT U/S 173(2) Cr.P.C DISCLOSES
SUFFICIENT MATERIAL TO PROCEED AGAINST THE ACCUSED AGAINST THE
ACCUSED U/S 426,440,506 ?

It is humbly submitted before the hon’ble court that the police report u/s
173(2) does not provide sufficient material to proceed against the accused u/s 426,440,506 .
Considering sec 426 IPC which talks about punishment for mischief , Mischief u/s 425 of IPC
has mental as well as physical element involved any change in property without an express or
implied intention to constitute wrongfull loss shall not fall under the head of mischief , Mens rea
is one f the essential ingredient of the offence of mischief, in the absence of any of its kind
cannot constitute the offence of mischief.
Sec 440, is not applicable in not applicable in the present
scanerio as there was no fear of death or hurt or wrongfull restraint to be imposed over the other
party by Mr. Thanos he reacted as per the situation.
Sec 506 on the other hand is also not sufficient to proceed
as against the accused as the accused did not issue any specific threat to the party so as to cause
his death or of grievous hurt. Neither any such threat was given by the accused to cause any kind
of alarm to the victim .In the given case sec 506 is relation to the charge over the accused u/s 307
IPC, therefore failure to prove the offence of sec 307 will ultimately lead the accused free from
the charges of sec 506 too.

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ISSUE 03. WHETHER THE POLICE REPORT U/S 173(2)C.r.P.C DISCLOSES

SUFFICIENT MATERIAL TO INITIATE TRIAL OF THE ACCUSED PERSON?

It is humbly submitted before the hon’ble court that the

police report u/s 173(2) does not disclose sufficient material to initiate trial as the charges framed
against the accused does not stand valid, Sec 307 IPC Attempt to Murder ,shall not be applicable
as it does not provides sufficient material facts to prove the intention of the accused there was no
mens rea and the act was driven away on the grounds of grave and sudden provocation. Sec 426,
Punishment for Mischief shall also not b applicable as mischief should have express or implied
intention for the wrongfull loss made to the victim which is not present in this case , Morever
there was no preparation made at the part of the accused to cause any kind hurt or wrongfull
retraint to the other party there by excluding the charge made upon the accused u/s 440 of IPC.
Sec 506 is also not sufficient in the present case as there is nosufficient facts to prove that the
accused issue any specific threat to the party to cause any inury to person reputation or property
of the accused. Therefore none of the charges framed against the accused is sufficient enough to
proceed the trial.

ISSUE 04. IF THE APPLICATION FOR DISCHARGE IS DISMISSED, WHAT

CHARGES CAN BE FRAMED AGAINST THE ACCUSED MR. THANOS?

It is humbly submitted before the hon’ble court that none of the

charges framed against the accused has sufficient validity to proceed againt the accused and
therefore no charges shall be framed against the accused . the counsel pleads to grant the
beneficial legislation to the accused and grant the benefit of probation to the accused.

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ARGUMENTS ADVANCED

ISSUE 01. WHETHER THE POLICE REPORT U/S 173(2) Cr.P.C DISCLOSES
SUFFICIENT MATERIAL TO PROCEED AGAINST THE ACCUSED U/S 307 IPC?

It is humbly submitted before the hon’ble court that the police report u/s 173(2)Cr.P.C does not
provide sufficient material to proceed against the accused u/s 307 IPC . This is to be dissuced
under the following points.

1.a. The elements of sec 307 IPC is not satisfied

.

1. It is humbly submitted that the element of Sec 307 IPC3 is not satisfied as there is no intention
of the accused Mr. Thanos so as to commit offence of attempt to murder.4

2. “Intent” expresses mental action at its most advanced point, or as it actually accompanies an
outward, corporal act which has been determined on- Intent shows the presence of will in the act
which consummates a crime. It is ‘the exercise of intelligent will, the mind being fully aware of
the nature and consequences of the act which is about (to be done, and with such knowledge, and
with full liberty of action, willing and electing to do it.)

3. In the case of State Of U.P vs Indrajeet5, the murder case u/s 300 IPC was dismissed on the
ground that there was no intention in the absence of any motive or intention to kill and having
regard to the type of weapon used and the number as well as the nature of injuries found
inflicted, the case on hand could not appropriately be said to be one warranting the application of
Sec 302 IPC.

4. In the case of State of Maharasthra v. Balram Patil6, Supreme Court held that to convict under
this section it is not necessary to show bodily injury capable of death which was inflicted n the
victim only, it has to be proved that whether the act irrespective of its result was done with the
intention or knowledge and under circumstances mentioned under this section.

3
307. Attempt to murder.—Whoever does any act with such intention or knowledge, and 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 1[imprisonment for life], or to such punishment as is
hereinbefore mentioned. Attempts by life convicts.—2[When any person offending under this section is under
sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]
4
Amit Rod And Others ... vs State Of Uttarakhand
5
State Of U.P vs Indrajeet @ Sukhatha on 25 August, 2000
6
1938CrLJ 331(sc)

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5. In the case of Hari singh vs. Sukhbir singh7 the SC added that the intention or knowledge of
the accused must be such as is necessary to constitute murder…the intention is to be gathered by
all circumstances & not merely from the consequences that ensue.

6. In the case of R vs. Shivpuri8 it was held by the hon’bl court that the accused is punished for
his guilty mind although the act committed is innocent.

1.b. Intention driven by grave and sudden provocation

1. Culpable homicide is not murder if the offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident9.

2. The test of ‘ grave & sudden’ provocation is whether a resonable man, belonging to the same
class of the socitey as the accused, placed in the situation in which the accused was placed would
be so provoked as to loose his self control. In India, words and gesture may also under certain
circumstances, cause grave and sudden provocations to an accused so as to brief his act within
the 1st exception to section 300. The mental background created by the previous act of victim
may be taken into consideration in an ascertaining whether the subsequent act caused grave and
sudden provocations for commiting the offence.10

3. In the case of Hari Kishan & Anr vs Sukhbir Singh & Ors, 11
The fight as the High Court has observed, might have been a sudden flare up. Where the fight is
accidental owing to a sudden quarrel, the conviction under s. 307 is generally not called for. We,
therefore, see no reason to disturb the acquittal of accused under s. 307 IPC. Where the fight is
accidental owing to a sudden quarrel, the conviction under s. 307 is generally not called for. We,
therefore, see no reason to disturb the acquittal of accused under s. 307 IPC.

7
(1988)4 SCC551: AIR 1998 SC 2127
8
1996 2ALL ER 334 (HL)
9
Exception 1 sec300: murder
10
Venkatesan v. state of Tamil Nadu (1997) 3 Crimes 146 (mad)
11
1988 AIR 2127, 1988 SCR Supl. (2) 571

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ISSUE 02. WHETHER POLICE REPORT U/S 173(2) Cr.P.C DISCLOSES

SUFFICIENT MATERIAL TO PROCEED AGAINST THE ACCUSED
U/S 426 440 & 506 IPC?

1. It is humbly submitted before the hon’ble court that the police report u/s 173(2) does not
provide sufficient material to proceed against the accused u/s 426,440,506 . Considering sec 426
IPC which talks about punishment for mischief ,

SEC 426

2. Mischief u/s 425 of IPC12 has mental as well as physical element involved any change in
property without an express or implied intention to constitute wrongfull loss shall not fall under
the head of mischief , Mens rea is one of the essential ingredient of the offence of mischief, in
the absence of any of its kind cannot constitute the offence of mischief.

3. Mischief involves intention or knowledge or likelihood t cause wrongfull loss or damage it

does not uncessarily contemplates damage of a destructive character. Mischief involves a mental
act with a destructive amimus destruction with object of creating wrongful loss or damage is
obligatory to be established. Negligence does not necessarily amounts to mischief.

4. Section 426 IPC13 deals with physical injury from a physical cause14 the first part of this
section sets out the mens rea onthe guilty mind which is the intention or the knowledge of
likelihood of causing wrongful los or damage to the public or to any person. The second part f
the sectin pertains to the actus reus , i.e to say the criminal act, which therefore as destroys or
diminishes its value or utility or affects it injuriously.15

5.In the case of Gajadhar vs state of up16 Allahabad high court laid down the main ingredients of
the sec 425
1. dishonest intention to take the property.
2. movable property.
3.it should be taken out of the possession of another person.
4.it should be taken without the consent of that person.

12
425. Mischief.—Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to
the public or to any person, causes the destruction of any property, or any such change in any property or in the
situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.
Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage
to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to
cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the
act, or to that person and others jointly.
13
Punishment for mischief.—Whoever commits mischief shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine, or with both
14
Moti lal (1901) 24 ALL 155,156
15
Commentary ratanlal dheerajlal ipc pg no.2948
16
1971 CrLJ 1361(ALL)

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5 . there must be some removal of the property in oder to accomplish the taking of it.
It is to be noted that in the present case there was n dihonest intention of the accused while
breaking the property of the other party.

6. Mens rea I one of the essential ingredient of the offence of mischief.ention and knowledge the
offence of mischief cannot be held. This was outlayed in the case of Jambulingam Pillai
v.Ponnuswami Pillai.17

SEC 440

7. Sec 440 IPC18 , In the present case there is no testimony as to preparation for causing death
and hurt to the other party.. In the case of State vs . Pradeep Solanki & Anr the court held that in
the absence of any incriminating / inculpatory evidence against the accused in
testimony of the eyewitnesses, the prosecution has miserably failed to prove the
charges against the FIR No. 102/16, PS BHD Nagar U/s. 440/34 IPC & Section 27 Arms Act
State Vs. Pradeep Solanki & Anr.

8. There has no preparation made by the accused as there was no intention to cause any kind of
hurt to the party.

SEC 506

9. Sec 506 of the IPC19 provides for punishment for Criminal Intimidation,20 In the case of
Mohinder singh v. state21 it was held that the accuse did not issue any threat to the complainant
so as to cause his death by the grievous hurt therefore the accused was not held guilty.

10.The case of Innacio mauael Miranda vs state of goa22 it was again held that the conviction
under this section is set aside if there is lack of factual evidence to proof that the accused has
threatened the other party.

17
AIR 1939 Mad 400: CrLJ656: 182IC327:49Law week 332.
18
440. Mischief committed after preparation made for causing death or hurt.—Whoever commits mischief, having
made preparation for causing to any person death, or hurt, or wrongful restraint, or fear of death, or of hurt, or of
wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to five
years, and shall also be liable to fine.
19
Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished
with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If
threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the
destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with
imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished
with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
20
Sec 505 IPC.
21
1993 CrLJ 85 (P&H)
22
1999 CrLJ 422

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11. To bring the offence of sec 506 the prosecutin has to prove that the accused threatened the
victim that his threatening was to cause an alarm to the victim and that the victim has in fact
been an alarmed by the threat.23

12. In the given case sec 506 is relation to the charge over the accused u/s 307 IPC, therefore
failure to prove the offence of sec 307 will ultimately lead the accused free from the charges of
sec 506 too. In the incompetencey to prove the charge u/s 307 the charge of sec 506 can also not
be proved.24

23
Commentary on ipc ratanlal and dheerajlal 20th edition pg.3358.
24
(1970) 72 Punj LR 526.

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ISSUE 03. WHETHER THE POLICE REPORT U/S 173(2)C.r.P.C DISCLOSES

SUFFICIENT MATERIAL TO INITIATE TRIAL OF THE ACCUSED PERSON?

1. It is humbly submitted before the hon’ble court that the police report u/s 173(2) does not
disclose sufficient material to initiate trial as the charges framed against the accused does not
stand valid, Sec 307 IPC Attempt to Murder ,shall not be applicable as it does not provides
sufficient material facts to prove the intention of the accused there was no mens rea and the act
was driven away on the grounds of grave and sudden provocation. Sec 426, Punishment for
Mischief shall also not b applicable as mischief should have express or implied intention for the
wrongfull loss made to the victim which is not present in this case , Morever there was no
preparation made at the part of the accused to cause any kind hurt or wrongfull retraint to the
other party there by excluding the charge made upon the accused u/s 440 of IPC.
Sec 506 is also not sufficient in the present case as there is nosufficient facts to prove that the
accused issue any specific threat to the party to cause any inury to person reputation or property
of the accused. Therefore none of the charges framed against the accused is sufficient enough to
proceed the trial.

2. It is to be noted that the accused is not guilty under sec 307 IPC25 as there was no prior
intention of Mr.Thanos to commit the offence the intention was not driven with the factor of a
criminal intent, morever there is an essence of grave and sudden provocation which drove the
factors of the offence.

3. The offence driven away with a grave and sudden provocation has been dealt as an exception
and the accused is not held guilty in such case the case of Hari Kishan & Anr vs Sukhbir Singh
& Ors26 , the hon’ble court held that the offence was a sudden flare up and thus was not
considered under section 307 of IPC.

4. It is to be submitted that the police report is not sufficient to disclose sufficient material to
initiate trial u/s 426 IPC27 as there is no sufficient ingredient to procced against the accused
u/s426 as there is no criminal intent of the accused in the present case. Mr.Thanos did not have
any guilty intentions to destruct the property of odin, it all happened in the grave situation.

5. The offence does not constitute mischief where the mental element of the accused is absent
this is proved in different cases, Mens rea is one of the essential ingredient of the offence of
mischief Jambulingam Pillai v.Ponnuswami Pillai.28 Intention and knowledge are the imp.
Ingredients .

6. It is to be submitted before the hon’ble court that sec 440 IPC29 , that there was no prior
preparation done by Mr.Thanos as to cause hurt r death of odin there is no material fact which
proves that the accused did any preparation in furtherance of the act.

25
ATTEMPT TO MURDER
26
1988 AIR 2127, 1988 SCR Supl. (2) 571
27
PUNISHMENT FOR MISCHIEF
28
AIR 1939 Mad 400: CrLJ656: 182IC327:49Law week 332.
29
MISCHIEF CAUSED AFTER PREPRATION OF CAUSING DEATH.

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7. In the case of State vs . Pradeep Solanki & Anr the court held that in the absence of any
incriminating / inculpatory evidence against the accused in testimony of the
eyewitnesses, the prosecution has miserably failed to prove the charges against the
FIR No. 102/16, PS BHD Nagar U/s. 440/34 IPC & Section 27 Arms Act State Vs. Pradeep
Solanki & Anr.

8. It is to be submitted before the hon’ble court that the accused can be tried u/s 506 IPC.30 As
there is no factual proof of any intimidation imposed by Mr.Thanos over the other party so as to
put him in such threat so as he would injure the person reputation or property of Odin.

9. Morever when there was no intention under sec 307 it would not prove the same u/s 506.

10. It is submitted by the counsel of the petitioner that none of the offence impoed on the
accused stands proved and thus there is no sufficient ground to initiate trial against the accused.
The police repor
t u/s 173(2) is therefore does not provide sufficient grounds to initiate the trial.

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PUNISHMENT FOR CRIMINAL INTIMIDATION.

WRITTEN SUBMISSION ON BEHALF OF THE PETTITONER.

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ISSUE 04. IF THE APPLICATION FOR DISCHARGE IS DISMISSED, WHAT

CHARGES CAN BE FRAMED AGAINST THE ACCUSED MR. THANOS?

1. It is humbly submitted before the hon’ble court that none of the charges framed against the
accused has sufficient validity to proceed againt the accused and therefore no charges shall be
framed against the accused . the counsel pleads to grant the beneficial legislation to the accused
and grant the benefit of probation to the accused

2. It is submitted that none of the charges against the accused framed as per sec 173(2) stands
effective therefre there is no libility proved of the accused. So there should be no charges to be
framed against the accused.

3. The accused should however be given the benefit of beneficial legislation In placing such type
of offenders, on probation, the Court encourages their own sense of responsibility for their future
and protect them from the stigma and possible contamination of prison. In this case. the High
Court has observed that there was no previous history of enmity between the parties and the
occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have
already said that the accused had no intention to commit murder of person31

31
Hari Kishan & Anr vs Sukhbir Singh & Ors1988 AIR 2127, 1988 SCR Supl. (2) 571

WRITTEN SUBMISSION ON BEHALF OF THE PETTITONER.

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PRAYER

Wherefore in the light of the fact, issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare:

1. Dismiss the charges framed.

2. Grant the Discharge Application.
3. Grant the benefits of probation.

And pass any such order as the Honourable Court deems fit and proper in the light of Equity,
Justice and Good Conscience, for this the petitioner shall duty bound pray.

For this the applicant shall be duty bound to pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd/-

COUNSEL FOR THE APPLICANT

WRITTEN SUBMISSION ON BEHALF OF THE PETTITONER.