MEMORANDUM FOR APPELLANT

Team Code:

LATE SENIOR ADVOCATE S.R.(BABA) CHITNIS MEMORIAL MOOT COURT

COMPETITION, 2018

BEFORE THE HONOURABLE HIGH COURT OF BOMBAY

IN THE MATTER OF

Criminal Appeal No. /2018

1] BABURAO ....APPELLANT NO.1

2] SARJA ....APPELLANT NO.2
- Son of Baburao
3] BHURAO ....APPELLANT NO.3
-Brother of Baburao

Vs.

1] STATE OF MAHARASHTRA ....RESPONDENT

FOR OFFENCES CHARGED UNDER:

SECTION 302 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE HIGH COURT JUDGE

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

COUNSEL APPEARING ON BEHALF OF THE APPELLANT

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 MEMORANDUM FOR APPELLANT

TABLE OF CONTENTS

Table of Contents ...............................................................................................................

List of Abbreviation.............................................................................................................
List of authorities.................................................................................................................
Cases Referred.........................................................................................................
Book Referred........................................................................................................
Legal Databases.......................................................................................................
Lexicons....................................................................................................................
Legislations..............................................................................................................
Statement of Jurisdiction....................................................................................................
Statements of Facts..............................................................................................................
Issues Presented...................................................................................................................
Summary Pleading..............................................................................................................
Detailed of Pleading............................................................................................................
1] Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal
Code, 1860?
1.1] Whether appellant was punishable under Indian Penal Code 1860
1.2] Such Punishment give by the session court u/s 302 r/w 34 is not correct
1.3] Nture of such act is not punishable u/s 302 r/w 34 of IPC

2] Whether the nature of injuries and the nature of the weapon, was such as to cause
death of a person?
2.1] Nature of Injure such as to cause death of a person
2.2] Nature of weapon was such as to cause death of a person

3] Whether the act of the deceased amounted to grave and sudden provocation?

4] Whether the Sessions Court was justified in sentencing the Appellants with life
imprisonment in connection with the act committed by them?
4.1] Section 229 and Section 304 applies appellant act
4.2] Relevant factors consideration before awarding appropriate sentence

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 MEMORANDUM FOR APPELLANT

List of Abbreviation

AIR All India Report

Regd Registered
Edn/Ed. Edition
ER English Report
Anr Another
Ors Others
Etc Etcetera
Vol Volume
SC Supreme Court
HC High Court
Id. Ibid
Ltd Limited
Hon’ble Honourable
u/s Under Section
CA Criminal Appeal
Cr.L.J Criminal Law Journal
FIR First Information Report
IPC Indian Penal Code
Cr.P.C Criminal Proccedure Code

IEA Indian Evidence Act

SCC Supreme Court Cases
SCR Supreme Court Report

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 MEMORANDUM FOR APPELLANT

INDEX OF AUTHORITIES

CASES REFERRED
1] Mahbub Shah v. Emperor (1945) 47 BOMLR 941

2] Chandrakant Murgyappa Umrani & Ors. v. State of Maharashtra AIR 1999 SC 1557

3] Suresh and Anr. v. State of U.P (2001) 3 SCC 673

4] Marinal Das v. State of Tripura (2011) 9 SCC 479

5] Nagraja v. State of Karnataka (2008) 17 SCC 277

6] Girija Shankar v. State of U.P (2004) 3 SCC 793

7] Sachchey lal Tiwari v. State of U.P (2004) 11 SCC 410

8] Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653]

9] Mohmed Amanat Mohmed Hasim Ansari v. State of Gujarath 12 May, 2009

10] kiakr Singh v. State of Rajasthan 1993 SCR (3) 696

11] Keshav lal v. State of Madhya Pradesh AIR 2002 SC1221

12] Chanda Ram v. State of Chhatisgarh SC 2013

7] Surinder Kumar v. UT, Chandigarh [1989] 2 SSC 217

8] Sukhbir Singh v. State of Haryana (2002) 3 SCC 327

9] Sekar v. State 2002(8) SCC 354

10] Perana v. Emperor 1936 ALL LJ 333

11] Suraj Dev v. The State(Delhi Admn) (Crl)Appeal No. 103 of 2009

12] K.M Nanavati v. State of Maharashtra AIR 1962 SC 605

13]R. DUFFY (1949) 1 ALL ER 932

14] Boya Munigadu v. The Queen (ILR 3 MAD 33)

15] In Re C. Narayan (A.I.R. 1958 A.P. 235)

16]Ayyanar v. State of Tamil Nadu

17] Babu Lal v. State AIR 1960 All 223

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 MEMORANDUM FOR APPELLANT

18] Suyambukkani v. State of Tamil Nadu (1989) LW (Crl.) 86

19] Sankaral Alias Sankarayee v. State (1989) L.W. (Crl.) 468

20] Virsa Singh v. State of Punjab (1958) SCR 1495

21] Jagrup Singh v. State of Haryana (1981) 3 SCC 616

22] Gurmukh Singh v State of Haryana (Crl.) Appeal No. 1609 of 2009

23] Hem Raj v. State (Delhi Administration) (1990) Supp. SCC 29

List of Books Referred

1] Ratanlal & Dhirajlal, the Indian Penal Code, (lexis Nexis Butterworth Wadhwa Nagpur
32nd Enlarged Edition, 2010)

2] PSA Pillai Criminal Law, (lexis Nexis Butterworth Wadhwa Nagpur, 10th edition, 2008)

3] K.D.Gaur, Textbook on the Indian Penal Code, (Universal Law Publication Company, 7th
Edition, 2013)

4] Dr. Hari Singh Gour, Penal Code, (Law Publishers Pvt.Ltd, Vol.1&2)

5] Kenny Outlines of Criminal Law. (Cambridge University Press, Cambridge, 19th edition
1966)

6] Criminal Major Act (Criminal manual). Niranjan Maitra Current’s Publications 2010

LEGAL DATABASES REFERRED

1. Manupatra Online Resources, http://www.manupatra.com.
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. SCC Online, http://www.scconline.co.in.
4. Oxford Dictionary, http://www.oxforddictionaries.com
5. Supreme Court of India, http://supremecourtofindia.nic.in/
6. West Law, http://www.westlawindia.co
7. Hein Online, http://home.heinonline.org/

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 MEMORANDUM FOR APPELLANT

LEXICONS
1] Law Dictionary Hind Law House 2015 Bhange’s Publication 1st Ed. 1992’ Reprint 2015.
2] Garner, Black’s Law Dictionary, (9th Ed. Thomus & West, U.S.A 1990).

LEGISLATIONS
1] The Indian Penal Code (45 of 1860)

2] The Criminal Procedure Code, 1973

3] The Indian Evidence Act, 1872

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 MEMORANDUM FOR APPELLANT

STATEMENT OF JURISDICTION

The Appellant has filed an appeal to the Hon'ble High court of Bombay, To review the
judgment passed by the session judge.

The hon'ble high court has the jurisdiction to hear the matter under section 374(2) of the
criminal procedure code 1973.

Section 374 appeal from conviction

(2) Any person convicted on a trail held by a session judge or a additional session judge or on
a trail held by any court in which a sentence of imprisonment for more than seven years has
been passed against him or against any person convicted at the same trail , any appeal to the
high court.
As per Criminal Procedure Code 1973 u/s 26 of Chapter III , provided Power of Courts to
tried the criminal matters.

Section 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.

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 MEMORANDUM FOR APPELLANT

STATEMENT OF FACTS

1. Baburao (Appellant No. 1), an elderly farmer lived with his family consisting of his wife
(Sumitra), son Sarja (appellant No. 2), daughter Sonali and brother Bhaurao (Appellant No.
3)
2. Vilas, a boy who lived in the same village was in love with Sonali. Baburao did not like
Sonali’s closeness to Vilas and had publicly warned both Vilas and Sonali to stay away from
each other. On several occasions he publicly scolded Sonali and asked her to refrain from
meeting Vilas.
3. Bhaurao had borrowedRs. 10,000/- from Vilas and though he had promised to pay him
immediately, he kept asking Vilas for time to repay the Rs. 10,000/-.
4. On 12th June 2016, Bhaurao invited Vilas to collectRs. 10,000/-. Vilas reachedBaburao’s
house around 8:30 pm, when the family had just finished their dinner. He saw Sonali from
the window and signaled her to come into the backyard. Baburao, Bhauraoand Sarja on
hearing whispers from the backyard went unarmed to investigate the matter. On seeing Vilas
and Sonali together,Baburaolost his temper, asked Sonali to return to the house and started
abusing Vilas. Vilas replied back and there was a heated argument between them. During the
course of the argument, Sarja went into the house and brought Baburao’s walking stick and
gave blows with the walking stick on the leg of Vilas. Bhaurao grabbed the walking stick and
started beating Vilas and gave blows on Vilas’shead and chest.
5. Vilas was taken to the civil hospital by the villagers, where he died four days later. The
Post-mortem report confirmed that Vilas haddied due to injuries suffered by him on his head
and due to fracture of two ribs. However, none of the injuries independently were sufficient
to causeVilas’s death while they cumulatively were sufficient in the ordinary course of
nature, to cause his death.
6. The First Information Report was registered under section 307 r/w section 34 of the Indian
Penal Code 1860, and after the death of Vilas, the charges were altered to section 302 r/w
Section 34 Indian Penal Code, 1860.
7. The Sessions Court convicted the three Appellants under section 302 r/w section 34 &
sentenced them to life imprisonment for having committed the murder of Vilas.
8. Aggrieved and dissatisfied by the judgment of conviction passed by the learned Trial
Judge, the Appellants have preferred the present appeal.

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 MEMORANDUM FOR APPELLANT

STATEMENT OF ISSUES

1] Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal
Code, 1860?
1.1] Whether appellant was punishable under Indian Penal Code 1860
1.2] Such Punishment give by the session court u/s 302 r/w 34 is not correct
1.3] Nture of such act is not punishable u/s 302 r/w 34 of IPC

2] Whether the nature of injuries and the nature of the weapon, was such as to cause
death of a person?
2.1] Nature of Injure such as to cause death of a person
2.2] Nature of weapon was such as to cause death of a person

3] Whether the act of the deceased amounted to grave and sudden provocation?

4] Whether the Sessions Court was justified in sentencing the Appellants with life
imprisonment in connection with the act committed by them?
4.1] Section 229 and Section 304 applies appellant act
4.2] Relevant factors consideration before awarding appropriate sentence

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 MEMORANDUM FOR APPELLANT

SUMMARY OF ARGUMENTS

1] Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal
Code, 1860?

The session court was not justified in holding that there was common intention between
Baburao, Sarja and Bhaurao to commit offence under section 34 ipc,1860 and thereby
convicting them of the said charge because:
Baburao, Sarja and Bhaurao did not acquire any common intention to attract under the
scope of Section 34 IPC;
The Act of the Appellants was not premeditated and was in the heat of the moment.

2] Whether the nature of injuries and the nature of the weapon, was such as to cause
death of a person?
The session court was not justified in convicting the appellants under section 302 if the
ipc,1860 because:
a) The case does not fall in any of the clauses of Section 300 IPC, 1860 and there was no
intention of the Appellants to kill the deceased.
b)Appellants did not use any lethal weapon and no particular injury was sufficient to cause
death and the act was not premeditated
c)The case falls under the Exception 1 of Section 300 IPC, 1860 as the act of the Appellants
was grave and sudden and the death was caused by mistake or accident.

3] Whether the act of the deceased amounted to grave and sudden provocation?

It is most respectfully submitted to this Hon’ble Courts-

“Exception 1 to section 300 IPC- When Culpable Homicide is not murder: Culpable
Homicide is not murder if the offender, whilst deprived of the power of self-control by
grave and sudden provocation, causes death of the persons who gave the provocation
or causes the death of any other person by mistake or accident.
Exception 4 Under Section 300 of Indian penal Code-
“Culpable homicide is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the offenders
having taken undue advantage or cruel or unusual manner.”
4] Whether the Sessions Court was justified in sentencing the Appellants with life
imprisonment in connection with the act committed by them?
The life sentence given by the session court to the appellants was not justified because:
The Case falls under Section 304 of the Indian Penal Code, 1860 therefore does not attract
harsh punishment of life imprisonment.

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 MEMORANDUM FOR APPELLANT

ARGUMENTS ADVANCED

1] Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal
Code, 1860?

It is most respectfully submitted to this Hon’ble Court-

1) That taking into consideration the statement of facts, it cannot be said that Appellant 1,
2 & 3 had and intention to administer the use of lathi/Stick and give blow on the
deceased to finally cause death of the deceased.
1.1] Whether he Appellant was punishable under Indian Penal Code 1860

1] That such an act in the spur of the moment does not attract heavy punishment & penalty
under relevant section of Indian Penal Code, which are:

Section 302:Punishment for Murder:

Whoever commits murder shall be punished with death, or [imprisonment for life], and
shall also be liable to fine.

Read with

Section 34: Acts done by several persons in furtherance of common intention:

When a criminal act is done by several persons in furtherance of 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.

2) That there are umpteen number of reasons which could earlier not be brought to the
attention of the Session court which the appellant most respectfully submits before this
Hon’ble Court for proving the non culpability of accused 1,2 & 3 as per the above
mentioned Sections of the Indian Penal Code,1860.

3) That the contention of the respondent till now that there was Common Intention of
Appellant 1,2 & 3 to kill the deceased cannot be taken into consideration as they all
went to the backyard of the house unarmed to investigate on hearing the whispers
coming.

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 MEMORANDUM FOR APPELLANT

4) In the case of Mahbub Shah v. Emperor1and Chandrakant Murgyappa Umrani &

Ors. v. State of Maharashtra2it was observed that“…to invoke the aid of section 34
successfully, it must be shown that the criminal act complained against was done by
one of the accused persons in furtherance of common intention of all and care must be
taken not to confuse same or similar intention with common intention…”. And this
requirement was certainly not satisfied in the present case as there was no dispute,
malice or personal grudges against the deceased by any of the appellant and requisite
intention cannot be attributed to the Appellants.

5) Moreover in the majority view taken by Sethi, J & Aggarwal, J (as they then were) in
the case of Suresh and Anr. v. State of U.P3it was held that“…Intention is to be judged
by the act in relation to the surrounding circumstances…” And such circumstances
shows that it all happened in the heat of the moment without predetermination of mind
as A-2 brought one lathi/stick from inside the house which is a common household item
instead of a lethal/stick weapon. Nothing prevented them from using a knife, which is
also a common household item although far more dangerous.

6) It was observed in the case of Marinal Das v. State of Tripura4that“…Section 34

requires a pre-arranged plan and presupposes prior concert therefore there must be
prior meeting of minds & it can be developed at the spur of the moment but there must
be pre-arrangement or pre-mediation concept.”This is not in the present case as all of
the appellant lost their temper on seeing Vilas and Sonali together. If it would have
been pre-arranged or pre-meditated to murder the deceased they would have armed
themselves with sharp lethal weapon at the time of going to the backyard.

7) That the Supreme Court has in Nagraja v. State of Karnataka5held that “A past enmity
by itself, in our opinion, may not be a ground to hold for drawing any inference of
information of common intention amongst the parties…”and in Girija Shankar v. State

1
(1945) 47 BOMLR 941
2
AIR 1999 SC 1557
3
(2001) 3 SCC 673
4
(2011) 9 SCC 479
5
(2008) 17 SCC 277
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 MEMORANDUM FOR APPELLANT

of U.P6it was held that “Section 34 is only a rule of evidence and does not create a
substantive offence” and that“The distinctive features of the section is the element of
participation in action.”

8) That having regard to the background in which occurrence has taken place the appellant
were not actuated by common intention as if there would have been malice of killing
the deceased they would have not called Vilas to their house.

9) Thus it not only the prosecution which has gravely erred in invoking Section 34 of the
IPC against the appellants, but also the Sessions Courts which has passed an order of
conviction under Section 302 r/w Section 34 of the IPC.

In SACHCHEY LAL TIWARI v. STATE OF U.P.7 [(2004) 11 SCC 410], the Supreme
Court held that for bringing in operation of Exception 4 to Section 300 IPC, it has to be
established that the act was committed without premeditation, in a sudden fight, in the heat of
passion upon a sudden quarrel without the offender having taken undue advantage and not
having acted in a cruel or unusual manner. The Supreme Court recently in Sandhya Jadhav
v. State of Maharashtra8 [(2006) 4 SCC 653] held that for bringing the act of accused into
the operation of Exception-4 to section 300 IPC, it has to be established that the death was
caused (a) without premeditation, (b) in a sudden fight, (c) without the offender having taken
undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with
the person killed.

In the instant case, the attack by the accused on the deceased would be considered to
be one blow in the spur of the moment in the heat of passion upon a sudden fight, but not
acted in a cruel manner, since the injury on the deceased on his head was the cause for the
death of the deceased. We are therefore of the considered opinion that there was a sudden
fight leading to the attack on the deceased resulting in his death. The accused caused the
injury on the deceased in the sudden fight, he did not act in a cruel or unusual manner, as
there is no material to show that thereafter any injury was inflicted when the deceased was in
a helpless condition. That being so, Exception 4 to Section 300 IPC is clearly applicable.

6
(2004) 3 SCC 793
7[(2004) 11 SCC 410]
8
[(2006) 4 SCC 653]

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 MEMORANDUM FOR APPELLANT

1.2] Such punishment give by the Session Court U/s 302 r/w 34 is not correct-
The Council for the appellant submitted here that the punishment was given by the session
judge is not correct as per relating to such act. In the present problem Baburao, Bhaurao and
sarja go to backyard for investigate the matter without any armed than there is clearly proven
that they are go on backyard without any guilty intention because they are not carry any
harmful weapon with us. Baburao lost is temper at that time he was only abuses to the vilas
and vilas replied back with very cruel language and there are heated argument between them.
As per this situation it was clearly indicate that such a fight was in the sudden quarrl in nature
than accused as not liable as per sec 302 punishment because as we seen the situation it was
come under the preview of Exception 4 of Section 300.
In the Case of Mohmed Amanat Mohmed Hasim Ansari Vs. State of gujarath9 The
learned Additional Sessions Judge, who passed the impugned order of conviction and
sentence was quite Senior Judicial Officer and he was expected to know that in case of
conviction for the offence of murder under Section 302 of the I.P.C., only sentence, which
could be awarded is either death or imprisonment for life. There is no provision to award
sentence of lesser imprisonment under Section 302 of the I.P.C. The learned Judge appears
to have ignored or forgotten provisions of Section 302 while passing the impugned order.
Said that He was sentenced to undergo imprisonment for 10 years with fine and in default to
undergo further R.I. for three months. Thus, total period of imprisonment could be 10 years
and three months and that is subject to some remission period. Eleven years have passed
after the date of his arrest. He must have been released after undergoing sentence as
awarded by the trial Court. Thus, hearing and disposal of this appeal has become just a
formality.
9Mohmed Amanat Mohmed Hasim Ansari Vs. State of gujarath
In the present matter there is session judge prosecuted life imprisonment is not correct
they are only liable for the imprisonment for 10 year with fine. Such Appellant was
prosecuted under sec 302 r/w 34 is not correct in nature.
In another case Balya Baliram Shivram More vs. The State of Maharashtra 10high court
Bombay give opinion, there is no material brought on record by the prosecution to bring
home guilt to the accused for the offence punishable under section 302 of IPC beyond
reasonable doubt. The judgment and order of conviction recorded by the trial Court needs to
be quashed and set aside, acquitting the appellant / accused. In the result, the appeal is
allowed. Conviction of the appellant / accused recorded by the trial Judge in Sessions Case is

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 MEMORANDUM FOR APPELLANT

quashed and set aside. The appellant is acquitted for the offence under section 302 of Indian
Penal Code.
Now the council for appellant submitted here that punishment give by the session court is
not in correct nature and council pray that in front of court appeal must be allowed .

1.3] Nature of such act is not punishable u/s 302 r/w34 of Indian Penal Code-
In the present problem Baburao, Bhaurao and sarja go to backyard for investigate the matter
without any armed than there is clearly prove that they are go on backyard without any guilty
intention because they are not carry any harmful weapon with us. Baburao lost is temper at
that time he was only abuses to the vilas and vilas replied back with very cruel language and
there are heated argument between them. Sarja went into the house brought stick which is
available in the every one house than there is no matter for the weapon. As per this situation
it was clearly indicate that such a fight was in the sudden quarrl in nature than accused as not
liable as per sec 302 punishment because as we seen the situation it was come under the
preview of Exception 4 of Section 300.
Exception 4 Under Section 300 of Indian penal Code-
“Culpable homicide is not murder if it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel and without the offenders having taken
undue advantage or cruel or unusual manner.”

It was held in Kikar Singh Vs. State of Rajasthan11 that in order to bring an actunder
Exception 4 all the 5 ingredients have to be essentially proved that is
a) Without premeditation
b) In a sudden fight
c) In the heat of passion
d) Upon a sudden quarrel
e) Without the offender having been taken undue advantage or acted in cruel or unusual
manner.

10Balya Baliram Shivram More vs. The State of Maharashtra

11
Kikar Singh Vs. State of Rajasthan1993 SCR 3 696

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 MEMORANDUM FOR APPELLANT

The High court of Rajasthan12 in the same case held that:

The occasion for sudden quarrel must not only be sudden but the party assaulted must be on
an equal footing in point of defence, at least at the onset. Here in this case both the deceased
and the appellant were unarmed and guelled with each other
In keshavlal v. State of Madhay Pradesh 13
He had some altercation with kamlabai where after he picked up a knife and stabbed her with
the result she sustained a deep wound of cutting the vital inner parts of her body. The accused
was held to be given the benefit of Exception 4 to section 300.
In Chanda Ram v. State Of Chhatisgarh 14
There was a scuffle between 2 people and the appellant, in the meanwhile, stuck the head of
one the persons with a tikani (piece of wood) used for supporting bullock carts. He fell down
immediately. The neighbors shifted him to his house, thereafter to the district hospital and
from there, to another hospital where he died, nearly four hours after the incident. The
Supreme court in this facts applied Exception 4.
Appellant’s case summarized based on facts and supported by above cited authorities:
a) All the ingredients of Exception 4 are present in the case
b) The accused and Appellant No 3 are in good relation defined by their financial contacts
hence there is clearly prove that there is no any intention on the mind of appellant no 3.
c) Than Appellant go out of house and brought stick which not a sufficient harmful to the
person and such a weapon i.e stick is available in every one house . Than council here
submitted as per the facts testimony indicates that there is no prior planning or pre meditation
by appellant.
d) Appellants are go backyard of house without any armed than there is clearly prove that
there is not any pre plain and also not any guilty intention. Act was happened in the sudden
fight which was come under Exception 4 of Section 300.

13High court of Rajasthan12

14keshavlal v. State of Madhay Pradesh 13
15Chanda Ram v. State Of Chhatisgarh 14

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 MEMORANDUM FOR APPELLANT

2] WHETHER THE NATURE OF INJURIES AND THE NATURE OF WEAPON WAS

SUCH AS TO CAUSE DEATH OF A PERSON?

It is most respectfully submitted to this Hon’ble Court-

1] That it is pertinent to mention that in the case of Surinder Kumar v. UT, Chandigarh15the
Supreme Court has held“…that if on a sudden quarrel a person in the heat of the moment
picks up a weapon which is handy & causes injuries out of which only one prove fatal, he
would be entitled to the benefit of the exception.”It was further held that“the number of
wounds caused during the occurrence in such a situation was not the decisive factor what
was important was that the occurrence had taken place on the account of a sudden and un
predetermined fight & the offender must have acted in a fit of anger.” There was absolutely
no intention to kill the deceased on the part of the Appellants. Admittedly, none of the
appellants were carrying a weapon of such lethality which could show their intent to commit
an offence such as the present one.
2] In Sukhbir Singh v. State of Haryana16the Supreme Court held that “..All fatal injuries
resulting in death cannot be termed as cruel or unusual for the purpose of not availing the
benefit of Exception 4 of Section 300 IPC”. After the injuries were inflicted and the deceased
had fallen down, the appellants are not shown to have inflicted any other injury him. With
regard to the facts on record it is clearly shown that in the heat of passion upon a sudden
provocation, appellants with lathi/Stick not being a lethal weapon caused injuries at random
and thus did not act in a cruel or usual manner.
3] That in Sekar v. State17the Supreme Court convicted the accused under Exception IV to
Section 300 IPC instead of Section 302 where the deceased fell on the ground after the
accused had given injuries on his head and left shoulder, accused again inflicted another blow
on his neck.
4] In Perana v. Emperor18It was observed that “the use of lathi/Stick is certainly dangerous
but is not so dangerous that one would suppose that anybody would be in the ordinary course
think that death is a probable cause of use of lath/Sticki. Our experience is that lathis are
frequently used and result in nothing more than injuries which are simple hurts or at the most
grievous hurts”.
15
[1989]2 SSC 217
16
[2002] 3 SCC 327
17
[2002](8) SCC 354
18
[ 1936] ALL LJ 333

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 MEMORANDUM FOR APPELLANT

Appellants in the heat of the moment without knowledge of the graveness of the weapon used
lathi which is present at every household in village and did not use any lethal weapon.

5] When there was only extortion by one of the accused and a wooden log was hit on the
head of the deceased which is a vital part of the body, the case was found to be under section
304 and not one under section 302 in Suraj Dev v. The State (Delhi Admn)19Taking into
consideration the aforesaid case it is pertinent to reiterate that the appellants also used a lathi
and not any lethal weapon.

6] In Jagtar Singh v. State of Punjab20, the accused had in the spur of the moment inflicted
a knife blow in the chest of the deceased. The injury proved fatal. The doctor had opined that
the injury was sufficient in the ordinary course of nature to cause death. The Supreme Court
observed that“…the quarrel was of trivial nat ure, in these circumstances, it is a permissible
inference that the appellant at least could be imputed with the knowledge that he was likely to
cause death and the court altered conviction from Section 302 to Section 304 Part II of the
IPC…” The facts on record show that none of the injuries by itself was sufficient to cause
death but were only cumulatively sufficient to cause death.

19CRL.)Appeal No. 103 of 2009

20
(1983) 2 SCC 342

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 MEMORANDUM FOR APPELLANT

III) WHETHER THE ACT OF THE DECEASED AMOUNTED TO GRAVE AND

SUDDEN PROVOCATION?

It is most respectfully submitted to this Hon’ble Courts-

“Exception 1 to section 300 IPC- When Culpable Homicide is not murder: Culpable
Homicide is not murder if the offender, whilst deprived of the power of self-control by
grave and sudden provocation, causes death of the persons who gave the provocation
or causes the death of any other person by mistake or accident.

1] That in K.M Nanavati v. State of Maharashtra7 it was laid down by the court that No
abstract standard of reasonableness can be laid down of what amounts to grave and sudden
provocation. What a reasonable man will do in certain circumstances depends upon the
customs, manners, way of life, traditional values etc.12) Circumstances which led to this
‘Act’ of the 3 Appellants was after seeing Vilas and Sonali together late at night at backyard
of their house in their small village in Haryana where customs, traditional values cannot be
compared to that of a city. There was no period of cooling down and this ‘Act’ of the
Appellants was in the spur of the moment.
2] It is pertinent to point out that Vilas (deceased) used to meet Sonali on the weekends when
her father was not at home on the pretext that he had come to collect the money and on the
date of incident also Vilas met with Sonali in her backyard. These circumstances tantamount
to provocation by the paramour himself.

3] LORD GODDARD, C.J, in R. DUFFY8defined provocation as:13)

"Provocation is some act, or series of acts, done by the dead man to the accused
which would cause in any reasonable person, and actually causes in the accused, a
sudden and temporary loss of self - control, rendering the accused so subject to
passion as to make him or her for the moment not master of his mind” and that
“…there are two things, in considering it, to which the law attaches great
importance. The first of them is, whether there was what is sometimes called time for
cooling, that is, for passion to cool and for reason to regain dominion over the mind.
Secondly, in considering whether provocation has or has not been made out, you must
consider the retaliation in provocation- that is to say, whether the mode of resentment
bears some proper and reasonable relationship to the sort of provocation that has
been given.”

7
AIR 1962 SC 605
8
(1949) 1 ALL ER 932

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 MEMORANDUM FOR APPELLANT

4] That the Appellants did not have time to cool down and regain their self control. In this
regard we may refer the pronouncement of judgement rendered by Subba Rao, J (as he than
was) in the celebrated pronouncement of K.M Nanavati v. State of Maharashtra in which
case the court noted that the accused clearly indicated that he had not only regained his self
control, but, on the other hand, was planning for the future. Between 1.30 p.m. when he left
his hours 4.20 p.m., when the murder took place, three hours had elapsed, and therefore there
was sufficient time for him to regain his self-control.Based on facts on record it is clearly
indicated that in the present case, the Appellants did not have the requisite cool down period
here as every thing happened in a spur of the moment within 1-2 minutes.

5] In Boya Munigadu v. The Queen9,the Madras High Court held that“…the State of the
mind of the accused, having regard to the earlier conduct of the deceased, may be taken into
consideration in considering whether the subsequent act would be sufficient provocation to
bring the case within the Exception of section 300 IPC…”

6] Further, InIn Re C. Narayan10, it was held that“…the mental state created by an earlier
act may be taken into consideration in ascertaining whether a subsequent act was sufficient
to make the assailant to lose his self – control…”

7] Under the English Law, the provocation must be grave as well as sudden. But, by way of
judicial thinking, the Indian Criminal Law has gone ahead. (Ref: K.M Nanavati v. State of
Maharashtra AIR 1962 SC 605). In our system, there is the concept of "sustained
provocation". It is concerned with the duration of the provocation. There may be
incidents/occurrences, which are such that they may not provoke the offender suddenly to
make his outburst by his overt act. However, it may be lingering in his mind for quite some
time, torment continuously and at one point of time erupt, which would lead to loss of self
control, make his mind to go astray, the mind may not be under his control/command and
results in the offender committing the offence. The sustained provocation/frustration nurtured
in the mind of the accused reached the end of breaking point, under that accused causes the
murder of the deceased.
8] InAyyanar v. State of Tamil Nadu11, it was held that courts in the decisions of BabuLal v.

9
(ILR 3 MAD 33)
10
(A.I.R. 1958 A.P. 235)
11

20
 MEMORANDUM FOR APPELLANT

State12and Suyambukkani v. State of Tamil Nadu13have added one more exception, known
as ‘sustained provocation’.Therefore, while considering whether there are materials to
indicate that there is a grave & sudden provocation as contemplated under Exception 1 to
Section 300 IPC, sustained provocation, on account of a series of acts more or less grave
spread over a certain period of time, would undoubtedly stand added to Exception 1 to
Section 300 IPC. It is evident from the bare and apparent facts on record that the conduct of
the Appellants was not predetermined and there was no time to cool down therefore the
offence of murder is not made out as it was truly grave and sudden.

9] That in Sankaral Alias Sankarayee v. State14it was held that“There are types of cases,
where there has been sustained provocation for a considerable length of time and there
would not have been a real sudden provocation immediately preceding the murder. In such
cases, the Courts have given the benefit of Exception 1 to Section 300, I.P.C. on the ground
that the provocation which is the root cause for the commission of the offence need not arise
at the spur of the moment”.

10] It is humbly put forward that the Session Court has gravely erred in considering the
evidence in totality and in the light of the judicial pronouncement as aforesaid, has wrongly
charged the Appellants for the offence under section 300 IPC.

12
AIR 1960 All 223
13
[1989 LW (Crl.) 86]
14
[1989 L.W. (Crl.) 468]
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 MEMORANDUM FOR APPELLANT

4] WHETHER THE SESSION COURT WAS JUSTIFIED IN SENTENCING THE

APPELLANTS WITH LIFE IMPRISONMENT IN CONNECTION WITH THE ACT
COMMITTED BY THEM?

It is most respectfully submitted to this Hon’ble Court-

1] That taking into consideration of the peculiar facts and circumstances of the case, it cannot
be said that the conviction of the appellant under Section 302 IPC should be upheld.

2] That the act committed does not fall under Sec 300 IPC but it does fall under Sec 299(c)
IPC. Therefore such an act committed without any mens rea or without the intention to kill
does not attract heavy punishment & penalty under relevant section of Indian Penal Code,
which are:

Section 299: Culpable homicide

Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge
that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 304 Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished

with [imprisonment for life], or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by which the death is caused
is done with the intention of causing death, or of causing such bodily injury as is likely to
cause death,

Or with imprisonment of either description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such bodily injury as is likely
to cause death.

3] That there are significant features of the case which are required to be taken into
consideration in awarding the appropriate sentence to the accused:

(i) Admittedly, the incident happened at the spur of the moment.

(ii) It is clear from the evidence on record that the appellants did not use any lethal
weapons to attack Vilas.

(iii) The A-3, Bhaurao gave a lathi blows on the head and chest of the deceased
which proved fatal.

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 MEMORANDUM FOR APPELLANT

(iv) The other accused did not indulge in overt act therefore, except the appellant, the
other co-accused namely Baburao (appellant 1), Sarja(appellant 2), should have been
acquitted by the lower court. However all of three appellants were convicted by
session court.

(v) The incident took place on 8th August, 2010 and the deceased remained
hospitalized and ultimately died after three days of hospitalisation.

(vi) This is also true that there was no previous enmity between the parties.

4] Therefore, it is abundantly clear that there was no mens rea or intention to kill or that there
was prearranged plan or that the incident had taken place in furtherance of the common
intention of the accused persons, when all these facts and circumstances are taken into
consideration in proper perspective, then it is improper to maintain the conviction of the
appellant under Section 302 IPC.

5] The appellant having struck blows on the head and chest of the deceased with the lathi, can
be attributed with the knowledge that it would cause an injury which was likely to cause
death and not with any intention to cause the death of the deceased. The offence committed
by the appellant, therefore amounted to culpable homicide not amounting to murder,
punishable under Section 304 Part II of the Code.

6] In Virsa Singh v. State of Punjab15it was held that Culpable homicide would amount to
Murder if both of the following conditions were satisfied:

(a) that the act which causes death is done with the intention of causing a bodily
injury; and
(b) That the injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death.
Thus, it must be proved that there was an intention to inflict that particular bodily injury
which, in the ordinary course of nature, would be sufficient to cause death, viz. that the
injury found to be present was the injury that was intended to be inflicted.

7] In Jagrup Singh v. State of Haryana16, the accused inflicted blow in the heat of the
moment in sudden fight with blunt side of Gandhala on head of the deceased which is a vital
part of the body causing his death. According to the doctors this particular injury in the
ordinary course of nature was sufficient to cause death. But the court altered the conviction of

15
(1958) SCR 1495
16
(1981) 3 SCC 616
23
 MEMORANDUM FOR APPELLANT

accused from Section 302 to Section 304 Part II I.P.C as according to the court, the intention
to cause such an injury was likely to cause death was not made out.

8] In Gurmukh Singh v State of Haryana17Supreme Court held that “…in the absence of
any positive proof that the appellant caused the death of the deceased with the intention of
causing death or intentionally inflicted that particular injury which in the ordinary course of
nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will
be attracted…"

9] That the contention of the State that the act falls under Section 302 IPC can not be
sustained as, if the act of the appellants falls within either of the Clauses 1,2 and 3 of Section
300, but is covered by any of the 5 Exceptions, it is punishable under the first part of Section
304. If however, the act falls within Clause (4) of Section 300, and at the same time covered
by any of the five Exceptions to that Section it will be punishable under the IInd part of
Section 304, Indian Penal Code,1860.

10] In Hem Raj v. State (Delhi Administration)18the Supreme Court stated that“…The
question is whether the appellant could be said to have caused that particular injury with the
intention of causing death of the deceased…” As the totality of the established facts and
circumstances do show that the occurrence had happened most unexpectedly in a sudden
quarrel and without pre-meditation during the course of which the appellant caused a solitary
fatal injury, he could not be imputed with the intention to cause death of the deceased or with
the intention to cause that particular fatal injury; but he could be imputed with the knowledge
that he was likely to cause an injury which was likely to cause death. Because in the absence
of any positive proof that the appellant caused the death of the deceased with the intention of
causing death or intentionally inflicted that particular injury which in the ordinary course of
nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will
be attracted.

11] There are some factors which are required to be taken into consideration before awarding
appropriate sentence to the accused. Each case has to be seen from its special perspective.
The relevant factors are as under:
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;

17
(CRL.) Appeal No. 1609 of 2009
18
(1990) Supp. SCC 29
24
 MEMORANDUM FOR APPELLANT

d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without premeditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force with
which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature to
cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
m) The conduct and behaviour of the accused after the incident. Whether the accused
had taken the injured/the deceased to the hospital immediately to ensure that he/she
gets proper medical treatment?

12] These are some of the factors which can be taken into consideration while granting an
appropriate sentence to the accused. The list of circumstances enumerated above is only
illustrative and not exhaustive. In our respectful submission, proper and appropriate sentence
to the accused is the bounden obligation and duty of the court. The endeavour of the court
must be to ensure that the accused receives appropriate sentence, in other words, sentence
should be according to the gravity of the offence to meet the ends of justice.

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PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES RAISED,

AUTHORITIES CITED AND ARGUMENTS ADVANCED, IT IS PRAYED THAT
THIS HON’BLE COURT MAY GRACIOUSLY PLEASED TO:

1) Acquit Mr. Baburao (Appellant-1), Mr. Sarja (Appellant-2), Mr. Bhaurao (Appellant-3)
for Murder under Section 302 read with Section 34 Indian Penal Code, 1860.

2) Reduce the sentence of life imprisonment of the Appellants

3) Pass any such order as this Hon’ble Court may deem fit in the interest of justice.

All of which is most humbly and respectfully prayed to set aside the order of the Session
court.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND

SHALL EVER PRAY.

Date : ___/____/____
Place : BOMBAY
All of which is most respectfully submitted

( Council for the Appellant )

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MEMORANDUM FOR APPELLANT

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