ARGUMENTS AND FINDINGS IN FAVOUR OF THE ACCUSED

1. Does Kumar Singh’s act really amounted to Murder and does it attract
Sec 302 of IPC?

It is submitted that the facts and circumstances of the case does not justify the
punishment of life imprisonment as the offence revealed from the material evidence is
only punishable under Section 304 Part II and not under Section 302 of Indian Penal
Code. The charge framed is vague and that facts of the case did not justify punishment
of life imprisonment as the accused can be punished at the most u/s. 304 (Part-II) and
not u/s. 302 IPC. H

It is submitted that the ingredients for bringing an act under Part II of Section 304
are:-

(i) act is done with the knowledge that it is likely to cause death,
(ii) there is no intention to cause death, or to cause such bodily injury as
is likely to cause death.

It is stated that the first ingredient is easily solved by referring to the weapon used by
the appellant to strike the accused. The accused in this instance has used a stick lying
near the place of the incident and it is very obvious that the accused was not aware
that the use of such a weapon can cause death or serious bodily injury that is likely to
cause death.

Further it is submitted that as far as the second ingredient is concerned, there was a
sudden altercation which ensued between the accused and the deceased in the present
case. The fact that the accused had met the deceased unexpectedly in the market place
and there was quarrel between the two and they both had grappled with each other as a
result both fell down. The deceased had provoked the accused by slapping him which
made the accused to pick up a stick nearby and out of rage gave a blow on the
stomach of the deceased resulting in death of the deceased.

It is submitted that the provisions under Sec 304 (II) IPC makes it very clear by the
explanation provided nthereon that what would constitute grave and sudden
provocation, which would be enough to prevent the offence from amounting to
murder, is a question of fact. Provocation is an external stimulus which can result into
loss of self-control and resulting reaction need to be measured from the surrounding
circumstances and here the provocation was such as would upset not merely a hasty,
hot tempered and hypersensitive person but also a person with calm nature and
ordinary sense. What is sought by the law by creating the exception is that to take into
consideration situations wherein a person with normal behaviour reacting to the given
incidence of provocation. Hence the protection extended by the exception is to be
applied to the accused who is a normal person acting normally in a given situation

It is humbly submitted and citied that Maqsood v. State of U.P, 2016 (15) SCC 748
the SC held that the appellants had only acted in self-defence and they were not the
aggressors. There was no intention to cause death; much less the knowledge can be
attributed from the nature of the assault.

It is submitted that on the day of the incident the accused had caused the said injury
because he was abused and provoked by the deceased. Thus, the injury caused to the
deceased was a result of such grave and sudden provocation and thus the incident took
place in a spur of moment. As such the case of the accused will fall only under
Exception I of Section 300 of I.P.C.

It is submitted that it is necessary to prove first whether the accused had any intention
of causing bodily injury and that the injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death. From the evidence on record, it is very clear
that the accused never intended to cause death and based on the finding of the
evidence on record it makes clear that Section 304 (Part-II) IPC is attracted. In this
case, there was no due deliberation on the part of the accused and he had beaten the
deceased during the spur of the moment when the deceased had provoked him. Hence
it is not correct to say that the accused had no intention to cause death of the deceased.

It is humbly submitted that it is relevant here to mention Section 300 of I.P.C.. Section
300 states that,

Murder except in the cases hereinafter except, culpable homicide is murder,

Firstly, if the act by which the death is caused is done with the intention of
causing death, or-

Secondly If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the
harm is caused, or-

Thirdly If it is done with the intention of causing bodily injury to any person
and the bodily injury intended to be inflicted is or

Fourthly If the person committing the act knows that it is so imminently

dangerous that it must, in all probability, cause death or such bodily injury
as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.

Exception I-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 the death of the person who gave the
provocation or causes the death of any other person by mistake or accident.

Provided the above exception is subject to the following provisos:-

Firstly, that the provocations not sought or voluntarily provoked by the

offender as an excuse for killing or doing harm to any person
 Secondly, that the provocation is not given by anything done in obedience to
the law, or by a public servant in the lawful exercise of the powers of such
public servant.

Thirdly, that the provocations not given by anything done in the lawful
exercise of the right of private defence

Explanation-Whether the provocation was grave and sudden enough to

prevent the offence from amounting to murder is a question of fact.

It is submitted that the accused had just only happened to meet the deceased suddenly
and there was a quarrel between the two as a result they both grappled with each other
as such both fell down and in the heat of the moment the deceased had slapped the
accused and also further provoked him by saying that he would kill him. As a result
the accused in a fit of rage had caused the said injury with a stick lying nearby. The
deceased had abused the accused in a public market place before a huge crowd and
had also threatened the accused that he would kill him. Further the eye witness had
also stated that it was the deceased who had first started the fight by slapping the
accused. Thus, the injury caused to the deceased as a result of such grave and sudden
provocation and the incident took place only on a spur of moment.

It is submitted that the aforesaid Section provides five exceptions wherein the
culpable homicide would not amount to murder. Under Exception I, an injury
resulting into death of the person would not be considered as murder when the
offender has lost his self-control due to the grave and sudden provocation. It is also
important to mention here that the provision itself makes it clear by the explanation
provided, that what would constitute grave and sudden provocation, which would be
enough to prevent the offence from amounting to murder, is a question of fact.
Provocation is an external stimulus which can result into loss of self-control. Such
provocation and the resulting reaction need to be measured from the surrounding
circumstances. Here the provocation must be such as will upset not merely a hasty, hot
tempered and hypersensitive person but also a person with calm nature and ordinary
sense. What is sought by the law by creating the exception is that to take into
consideration situations wherein a person with normal behaviour reacting to the given
incidence of provocation. Thus, the protection extended by the exception is to the
normal person acting normally in the given situation.

Hence it is humbly submitted that this case of the accused only falls under Exception I
of Section 300 of I.P.C. sufficient in the ordinary course of nature to cause death.

2. Can the Dying declaration of the deceased be admissible as evidence

against the accused?

It is humbly stated that the doctrine of Dying Declaration Section 32 of Evidence

Act has an exception to the general rule contained in Section 60 of the Evidence Act,
which provides that oral evidence in all cases must be direct i.e. it must be the
evidence of a witness, who says he saw it. The dying declaration is, in fact, the
statement of a person, who cannot be called as witness and, therefore, cannot be cross-
examined.

It is submitted that the court should be satisfied and it is the duty of the court to satisfy
itself of the truthfulness before it can proceed to convict the accused. It is submitted
that dying declaration evidence made by the deceased about the offense should be
recorded very carefully keeping in mind what could possibly go wrong if in case of
any error. The dying declaration made is as such suspicious and it cannot be acted
upon.

It is submitted that the Certificate of the duty doctor was not obtained mentioning the
fitness state of mind of the declarant as such the dying declaration of the declarant
should not be acted upon without corroborative evidence. It is further submitted that
the court has to scrutinize the dying declaration carefully before taking it as evidence.
It is submitted that the declarant had stated that after the incident a stranger had taken
him by car to the hospital. But in contrary the hospital records states that the declarant
was brought by ambulance to the hospital. Hence the dying declaration made by the
declarant was Inconsistent as such is of no evidentiary value and needs to be
corroborated.

It is submitted that in Natha Shankar Mahajan v. State of Maharashtra the court has
held if there is any suspicion about this dying declaration, the benefit must go to the
accused. That is a correct proposition of law. However, it is also the settled position
that where the dying declaration is believable, creditworthy and appeals to the court,
the same can be made the sole basis of the conviction. Further in the case of Ram
Manorath v. State of U.P. the Supreme Court observed that a dying declaration that
suffers from infirmity cannot form the basis of conviction. Hence it is submitted that
the dying declaration cannot be relied if it is believed there are suspicious
circumstances surrounding the same

It is submitted that the court should also consider the eye witness statement where the
eye witness had stated that it was the deceased who had first slapped and started the
fight thereby provoking the accused. Hence it is stated that eyewitness prevails over
Medical opinion as opined by the Supreme Court in the case of Nanuhau Ram v.
State of Madhya Pradesh, that the Court in order to satisfy whether deceased was in a
fit mental condition to make the dying declaration looks up to the medical opinion.
But where the eyewitness has said that the deceased was in a fit and conscious state to
make this dying declaration, the medical opinion cannot prevail.