(II) THAT THE ACCUESD IS LIABLE UNDER SCTION 302 OF IPC

it is humbly submitted before the Hon’ble court that the accused is liable under section 302 of
IPC as (2.1) there was Actus Reus and Mens Rea to commit murder; (2.2) the defence of
intoxication cannot be taken; (2.3) the testimony of eye- witness cannot be rejected; and (2.4)
the accused had motive to kill.

(2.1) THAT THERE WAS ACTUS REUS AND MENS REA TO COMMIT MURDER

It is humble submitted before the Hon’ble court that (2.1.1) actus reus of murder can be
proven and (2.1.2) mens rea for murder is established in the instant matter.

(2.1.1) ACTUS REUS CAN BE PROVEN

It is humble submitted that Actus reus is any wrongful act.1 Thus, in a case of murder, actus
reus would be the physical conduct of the accused that causes death of the victim. Thus, in
the present case actus reus is established by the way of circumstantial evidence. Bearing in
mind that it is not for the prosecution to meet any and every hypothesis suggested by the
accused, howsoever extravagant and fanciful it might be, guilt can be proved by
circumstantial evidence after justification of incriminate facts and circumstances. 2 In the
present case it is humbly submitted that before the honourable court that the circumstantial
evidence in the instant matter shows within all human probability, that act is done by the
accused by aiming at Laxman and firing a bullet directly hitting him in his right eye.

(2.1.1.1) That the circumstances are conclusive in nature

In the cases based on circumstantial evidence the settled law is that the circumstances from
which the conclusion of guilt is drawn, should be fully proved and such circumstances must
be conclusive in nature.3 In the given case the circumstances are conclusive and are directly
pointing to the guilt of the accused. The enmity between both of them clearly indicates the
motive of Phoolchand to kill Laxman. Phoolchand was crestfallen when he heard that
Laxman is getting married to Akriti on 14th Feb (the girl whom he earlier attempted to kidnap
and also threatened to kill Laxman) and joined the marriage possession as an uninvited guest
and short the gun aiming at Laxman which resulted his death.

1
AIYAR, P RAMANATHA, THE LAW LEXICON, 49 (2ND ED, Lexis Nexis Nagpur, 2006)
2
State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840; V.C. Shukla and Ors. v. State (Delhi
Administration), AIR 1980 SC 1382 ; Bodh Raj @ Bodha and Ors. v. State of Jammu & Kashmir, AIR 2002 SC
3164
3
C. Chenga Reddy v. State of A.P., 1996 10 SCC 193.
 (2.1.2) MENS REA FOR MURDER IS ESTABLISHED

It is humbly submitted that Mens rea is considered as guilty intention 4, which is proved or
inferred from the acts of the accused.5 It is submitted that there was intention to cause injury
and there was a clear-cut motive of the accused. Causing a serious injury on a vital part of the
body of the deceased must necessarily lead to the inference that the accused intended to cause
death or bodily injury sufficient to cause death of the victim, and it answers to section 300
and is murder6. Given in the facts that there was previous rivalry between the deceased and
the accused7 and the accused in the college days when got to know that Laxman is dating
Akriti (also liked by Phoolchand) threatened to kill him. It is also established that Phoolchand
was crestfallen on hearing about Laxman marriage with Akriti. 8 All the above stated facts
clearly establish the intention (mens rea) of the accused to kill Laxman.

(2.2) THAT THE DEFENCE OF INTOXICATION CANNOT BE TAKEN

It is humbly submitted that in cases where an act done is not an offence unless done with a
particular knowledge or intent, a person who does the act in a state of intoxication shall be
liable to be dealt with as if he had the same knowledge as he would have had if he had not
been intoxicated, unless the thing which intoxicated him was administered to him without his
knowledge or against his will.9 So far as knowledge is concerned, we must attribute to the
intoxicated man the same knowledge as if he was quite sober. In many cases intention and
knowledge merge into each other and mean the same thing more or less and intention can be
presumed from knowledge.10

Hence, in the present case since Phoolchand was voluntarily intoxicated cannot take the
defence that he was unable to form the intention as he was intoxicated. It is also submitted
(2.2.1) that intention cannot be negated due to voluntary intoxication and (2.2.2) that the
accused was capable to judge the consequences of his act

4
Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 P&H 1.
5
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
6
Md. Idrish v. State, (2004) CriLJ 1724 (Raj); Md. Sharif & Anr. v. Rex, AIR 1950 All 380; Badri v. State of
U.P., AIR 1953 All 189; Dibia v. State of U.P., AIR 1953 All 373; State of Maharashtra v. Bhairu Sattu Berad,
AIR 1956 Bom 609.
7
Moot Proposition para 2
8
Moot Proposition para 5(a)
9
Basdev vs. The State of Pepsu (17.04.1956 - SC) : MANU/SC/0027/1956
10
Basdev vs. The State of Pepsu (17.04.1956 - SC) : MANU/SC/0027/1956
Guns must be carried with a sense of responsibility and caution are not meant to be used in
such places like marriage ceremonies.11 Which was not in this case.

(2.2.1) THAT INTENTION CANNOT BE NEGATED DUE TO VOLUNTARY

INTOXICATION

It is humbly submitted before the Hon’ble court that with regard to the intention, drunkenness
may perhaps be adverted to according to the nature of the instrument used. If a man uses a
stick, you would not infer a malicious intent so strongly against him, if drunk, when he made
an intemperate use of it, as he would if he had used a different kind of weapon; but where a
dangerous instrument is used, which, if used, must produce grievous bodily harm,
drunkenness can have no effect on the consideration of the malicious intent of the party. 12 In
the present case the instrument used by Phoolchand was gun which was a dangerous
instrument. Though Phoolchand was a trained shooter13 does not mean the necessity for him
to carry gun in the public place.

(a) That the intention can be derived from circumstances

For a case to falls Under Section 302 or 304 has to be decided from case to case depending
on factors like the circumstances in which the incident takes place, the nature of weapon used
and whether weapon was carried or was taken from the spot and whether the assault was
aimed on vital part of the body; the amount of force used; whether the deceased participated
in the sudden fight; whether there was any previous enmity; whether the person inflicting the
injury took any undue advantage or acted in a cruel or unusual manner. The list of
circumstances is not exhaustive and there may be several other circumstances with reference
to individual cases.14 Applying these tests to the present case, it was a case of previous enmity
and the nature of weapon used i.e. gun, injury suggests intention to cause death or a fatal
injury on a vital part of the body with full force sufficient to cause death. Where injuries are
inflicted with the intention of killing a person and death ensues as a result of the injuries, it is
a clear case of murder falling under Section 302 of the IPC.15

11
Kunwar Pal vs. State of Uttarakhand, (2014) 12 SCC 434
12
Rex v. Meakin [(1836) 173 E.R. 131; 7 Car. & P. 295
13
MP 5(a)
Sahebrao Dhondiba Patekar vs. State of Maharashtra (18.01.2002 - BOMHC) :
14

MANU/MH/1859/2002
15
Badri v. State, AIR 1953 All 189.
 (2.2.2) THAT THE ACCUSED WAS CAPABLE TO JUDGE THE
CONSQUENCES OF HIS ACT

It is humbly submitted that before the Hon’ble court that in the case of Basudev vs state of
Pepsu since the accused was able to walk properly and tried to ran from the crime scene,
therefore, the court held that there was no proved incapacity in the accused to form the
intention to cause bodily injury sufficient in the ordinary course of nature to cause death and
was held liable under section 302 of IPC. The accused in the instant case was also able to ran
from the crime scene16 and there was no indication in the facts that Phoolchand was not able
to handle himself due to intoxication, therefore, the accused had failed to prove such
incapacity as would have been available to him as a defence, and so the law presumes that he
intended the natural and probable consequences of his act, in other words, that he intended to
inflict bodily injury to the deceased and the bodily injury intended to be inflicted was
sufficient in the ordinary course of nature to cause death. 17

That evidence of drunkenness falling short of a proved incapacity in the accused to form the
intent necessary to constitute the crime, and merely establishing that his mind was affected by
drink so that he more readily gave away to some violent passion does not rebut the
presumption that a man intends the natural consequences of his acts. 18 Therefore Phoolchand
being in his sensed ewas capable to form the requisite mens rea and intentionally fired bullet
at Laxman to end his everlasting enimity.

(2.3) THAT THE TESTIMONY OF EYE WITNESS CANNOT BE REJECTED ON

GROUND OF INTERESTED WITNESS

It is humbly submitted before the hon’ble court that it will be unreasonable to contend that
evidence given by witnesses should be discarded only on the ground that it is evidence of
partisan or interested witnesses. No hard and fast rule can be laid down as to how much
evidence should be appreciated. But the plea that such evidence should be rejected because it
is partisan or interested cannot be accepted as correct.19 Proof beyond reasonable doubt is a
guideline, not a fetish and guilty man cannot get away with it because truth suffers some
infirmity when projected through human processes.20

16
Moot proposition para 5©
17
Basdev vs. The State of Pepsu (17.04.1956 - SC) : MANU/SC/0027/1956
18
Mavari Surya Satyanarayana vs. State of Andhra Pradesh (02.09.1994 - APHC) : MANU/AP/0105/1994
1996(1)APLJ (HC) 213
19
Masalti Vs. State of U.P. AIR 1965 SC 202
20
 Inder Singh v. State (Delhi Admn.), (1978) 4 SCC 161
Thus, in the present case Dimpi Pandit who was the witness from the deceased side was the
sister of Laxman21, but her testimony as a an eye witness cannot be rejected on the grounds
that she was interested witness as she was the one who was standing nearest Laxman when
the bullet hit him on his right eye.

(2.4) THAT THE ACCUSED HAD MOTIVE TO KILL LAXMAN

Sec 8 of Evidence Act stipulates that any fact is relevant which shows or constitutes motive
or preparation for any fact in issue or relevant fact. Thus, previous threats or altercations
between parties are admitted to show motive. 22 Motive is something which prompts a man to
form an intention and knowledge is an awareness of the consequences of the act. In many
cases intention and knowledge merge into each other and mean the same thing more or less
and intention can be presumed from knowledge. 23

Motive, generally means that which moves or induces a person to act in a certain way; a
desire, fear, reason etc. which influences a person’s volition; motive is productive of physical
or mechanical motion.24 In the present case there was the clear motive of the accused to kill
Laxman because there was enimity between them. Phoolchand had also threatened to kill
Laxman when he got to know Laxman is dating Akriti and even attempted to kidnap Akriti.25

21
MP para 4
22
Son Lal v. State of Uttar Pradesh, AIR 1978 SC 1142
23
Paul vs. State of Kerala (21.01.2020 - SC) : MANU/SC/0058/2020
24
The Shorter Oxford English Dictionary;, Vol. II, Third Edition, Clarendon Press, Oxford.
25
MP para 3