1

KSHAN- 14th NATIONAL MOOT COURT COMPETITION, 2019

IN THE PROCEEDING BETWEEN

RAJESH S/O LEMAN BHENDE_______________________________________ APPELLANT 1

PARAG S/O VAMAN HIRULKAR______________________________________APPELLANT 2

V.

STATE OF MAHARASHTRA_________________________________________RESPONDENT

BEFORE THE HON’BLE HIGH COURT OF BOMBAY

U/S 374 OF THE CODE OF CRIMINAL PROCEDURE, 1973

FOR THE OFFENCE CHARGED

UNDER SECTION 302 R/W SECTION 34

OF THE INDIAN PENAL CODE, 1860

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MEMORANDUM FOR THE PROSECUT

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TABLE OF CONTENTS Team Code:

TABLE OF CONTENTS _____________________________________________________II

LIST OF ABBREVIATIONS __________________________________________________V

INDEX OF AUTHORITIES__________________________________________________VI

STATEMENT OF JURISDICTION ____________________________________________X

STATEMENT OF FACTS ___________________________________________________XI

STATEMENT OF CHARGES _______________________________________________XIII

SUMMARY OF ARGUMENTS _____________________________________________XIV

ARGUMENTS ADVANCED __________________________________________________1

I. The present appeal is maintainable in the Bombay High Court ___________________1

I. The High Court has jurisdiction to hear the present appeal under S. 374 of

Cr.P.C. ____________________________________________________________1

II. The Judgment of the Court of Sessions was erroneous _____________________1

II. Accused 1 is not liable for the offence of murder under section 302 r/w 34 of Indian

Penal Code, 1860 ______________________________________________________2

I. Mens Rea of Accused 1 has not been established __________________________2

A. Accused 1 did not have the motive to commit the offence ___________________2

B. Accused 1 did not have the intention to commit the offence _________________4

II. Actus Reus has not been established ____________________________________4

A. Statement of PW 1 cannot be relied upon ________________________________4

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B. Statement of PW 3 is subject to strict scrutiny ____________________________5

C. Disclosure statement of Accused 1 under Section 27 of IEA, 1872 is inadmissible6

a. The Statement given was not voluntary _______________________________6

b. There was no discovery of facts subsequent to the information given u/s 27 __6

c. No nexus of knife with the commission of the offence ___________________7

III.Procedural lapses are fatal to the case of prosecution ______________________7

A. Medical examination of the accused was not conducted under section 54 of

Cr.P.C. ___________________________________________________________7

B. The FIR is fabricated _______________________________________________8

C. The testimony of a relevant witness was omitted __________________________8

IV. The Prosecution has failed to establish the case beyond reasonable doubt _____9

III. In arguendo, Accused 1 exercised the right of private defence against Deceased 1 under

section 96 read with section 100 of the IPC, 1860 _____________________________9

I. Accused 1 is fault free from bringing about the encounter _________________10

II. The apprehension of death or grievous hurt was real. ____________________10

III.There was no sufficient time for recourse to the public authorities. _________11

IV. Retaliation was necessary ____________________________________________11

V. More harm than necessary was not caused. _____________________________12

IV.In arguendo, the act of Accused 1 amounts to culpable homicide under exception II of

section 300 of the Indian Penal Code, 1860 __________________________________12

V. In arguendo, the act of Accused 1 was done under sudden and grave provocation within

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the Exception I of Section 300 IPC, 1860___________________________________13

VI. The act of Accused 1 against Deceased 2 was done by accident under section 80 of the

Indian Penal Code, 1860 ________________________________________________13

I. The act was done by accident or misfortune ____________________________15

II. The act was done without any criminal intention or knowledge ____________15

III.The act was being done in a lawful manner by lawful means _______________15

IV. The act was being done with proper care and caution ____________________17

VII.Accused 2 is not liable for the offence of murder under section 302 r/w 34 of Indian

Penal Code, 1860 _____________________________________________________17

I. Accused 2 did not have the common intention to commit the offence ________17

A. No prearranged plan existed between Accused 1 and Accused 2 _____________18

B. Accused 1 did not share the intention with Accused 2 _____________________18

II. Accused 2 did not participate in the act ________________________________18

III.In furtherance, no criminal act was done. ______________________________19

VIII.Mitigating Factors call for leniency of punishment __________________________19

PRAYER _______________________________________________________________XVII

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LIST OF ABBREVIATIONS

¶ Paragraph Number
AIR All India Reporter
All Allahabad High Court
Anr. Another
Bom Bombay High Court
CriLJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure, 1973
Del Delhi High Court
DW Defence Witness
Ed. Edition
FIR First Information Report
HC High Court
IEA Indian Evidence Act, 1872
IPC Indian Penal Code, 1860
No. Number
Ors. Others
Pg. Page Number
PW Prosecution Witness
Raj Rajasthan High Court
R/w Read With
S. Section
SC Supreme Court
SCC Supreme Court Cases
U/s. Under Section
v. Versus
Vol. Volume

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INDEX OF AUTHORITIES

CASES

Aher Raja Khima v. State of Saurashtra, (1955) 2 SCR 1285 7

Arun v. State by Inspector of Police Tamil Nadu, AIR 2009 SC 1256 1
Ashish Jain v. Makrand Singh, (2019) SCC OnLine SC 37 5
Atley v. State, AIR 1955 SC 807 2
Atmendra v. State of Karnataka, AIR 1998 SC 1985 11
Avter Singh v. State of Rajasthan, AIR 2004 SC 2865 5
Bachan Singh v. State of Punjab (1980) 2 SCC 684 15
Badri v. State of Rajasthan, (2000) 10 SCC 246 1
Bala Sahib v. State of Maharashtra, 1984 CriLJ 1014 (Bom) 11
Balbir Singh v. State, 1959 SCC Online P&H 53 8
Balu v. State (UT of Pondicherry), (2016) 15 SCC 471 13
Balwinder Singh v. State of Punjab, 1989 CriLJ 718 (Punj) 3
Barendra Kumar Ghosh v. Emperor, ILR 52 Cal 197 15
Basdeo v. State of Pepsu, AIR 1956 SC 488 2
Bashir v. State of Uttar Pradesh, 1953 CriLJ 1505 14
Bhupendrasingh A Chudasama v. State of Gujarat, AIR 1997 SC 3790 13
Brij Lal v. State of Rajasthan, 2006 SCC Online Raj 772 8
Cabuslay v. People, 471 SCRA 241 8
Chaco @ Aniyan Kunju v. State of Kerala, (2004) 12 SCC 269 10
Chand Singh v. State of Rajasthan, 1971 CriLJ 1501 11
Chandrakant Murgyappa Umrani v. State of Madhya Pradesh, AIR 1999 SC 13

1557
Chettapan Nair v. State of Kerala, 1960 Ker LT 965 8
Chhotka v. State, 1958 Cal 482 2
D.K. Basu v. State of West Bengal, AIR 1997 SC 610 5
Dajya Moshaya Bhil v. State of Maharashtra, AIR 1984 SC 1717 14

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Darshan Singh v. State of Punjab & Anr., (2010) 2 SCC 333 9
Dhansingh Nath v. State of Assam, 1978 CriLJ (NOC) 10 Gau 10
Dharma @ Dharam Singh v. State (Delhi Administration), 1980 CriLJ 1394 3
Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 13
Dina Bandhu v. State of Orissa, AIR 1972 SC 180 7
Earabhadnappa v. State of Karnataka, AIR 1983 SC 446, 449 5
Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355 4
Gordhan v. State of Rajasthan, 1986 SCC OnLine Raj 75 8
Gurdatta Mal and Ors. v. State Of Uttar Pradesh, AIR 1965 SC 257 13
Hari Kishen & State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127 3
Idrish Bhai Daudbhai v. State of Gujarat, (2005) 3 SCC 277 14
In Rishideo Pande v. State of Uttar Pradesh, AIR 1955 SC 331 14
Iqbal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC 140 6
Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947 15
James Martin v. State of Kerala, (2004) 2 SCC 203 10
Jarnail Singh v. State of Punjab, AIR 1982 SC 70 14
Joginder Ahir v. State of Bihar, (1971) 3 SCC 449 15
K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 11
Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 7
Kashi Ram and Ors. v. State of Madhya Pradesh, AIR 2001 SC 2902 10
Kashmiri Lal & Others v. State of Punjab, (1996) 10 SCC 471 9
Krishnan v. State, (2003) 7 SCC 56 14
Kumar Alias Thambi v. State, 2012 CriLJ 2673 6
Laxman Sahu v. State of Orissa, 1986 (1) Supp SCC 555 9
Mahbub Shah v. King-Emperor, LR 72 IA 148, 153 15
Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 4
Mahesh s/o Janardhan Gonnade v. State of Maharashtra, (2008) 13 SCC 271, 21 1
Nagaraja v. State of Karnataka, (2008) 17 SCC 277 14
Narayan Kanu Datavale v. State of Maharashtra, 1997 CriLJ 1788 (Bom) 4
Nawaz v. State Rep. by Inspector of Police, 2019 SCC OnLine SC 67 11

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Onteru Venkata Suba Reddy v. State of Andhra Pradesh, 2008 CriLJ 2870, 2873 6
Panchhi v. State of Uttar Pradesh (1998) 7 SCC 177 4
Pandurang v. State of Hyderabad, AIR 1955 SC 216 14
People v. Dagani, 499 SCRA 64 8
People v. Dela Cruz, 400 Phil. 872 8
Puran Singh v. State of Punjab, (1975) 4 SCC 518 8
R. v. Murray, 5 Cox CC 509 12
Raj Singh v. State of Haryana, (2015) 6 SCC 268 8
Ram Kumar v. State, AIR 1970 Raj 60 3
Rama Yashwant Kamat v. State, 1978 SCC Online Bom 208 8
Ramakant Rai v. Madan Rai, (2004) Cri LJ 36 (SC) 7
Ramni v. State of Madhya Pradesh, AIR 2000 SC 29 5
Rizan v. State of Chhattisgarh, AIR 2003 SC 976 9
S. v. Kathi Kalu, AIR 1961 SC 1808 5
Shankar Narayan Bhadolkar v. State of Maharashtra, AIR 2004 SC 1966 13
Shankarlal Kacharabhai v. State of Gujarat, (1965) 2 CriLJ 226 15
Sivapada Senapaty v. State, AIR 1969 Cal 28 9
Sonelal v. State of Uttar Pradesh, AIR 1978 SC 1142 2
State of Andhra Pradesh v. Rayavarappu Punnayya, AIR 1977 SC 45 10
State of Government of Madhya Pradesh v. Rangaswamy, AIR 1952 Nag 268 13
State of Karnataka v. Kamalaksha, 1978 CriLJ 290 11
State of Karnataka v. Papanaika, AIR 2004 SC 4967, 10 1
State of Karnataka v. Shiva Shanker, 1978 Kant LJ 197, 200 8
State of Maharastra v. Prabhu Barku Gade, 1995 CriLJ 1432 (Bom) 4
State of Orissa v. Rabindranath Dalai and Anr., 1973 CriLJ 1686 (Orissa) 9
State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264 3
State of Rajasthan v. Om Prakash, (2002) 5 SCC 745 4
State of Uttar Pradesh v. Ashok Dixit, (2000) 3 SCC 70 4
Sukhdev Singh v. Delhi State (Govt of NCT of Delhi), AIR 2003 SC 3716 11
Sunil Gangrade v. State of Madhya Pradesh, 1997 (2) MP LJ 133 9

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Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657 4
Surendra Chauhan v. State of Madhya Pradesh, (2000) 4 SCC 110 13
Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC 244 10
Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 5

STATUTES

Art. 20(3), The Constitution of India 5

S. 100, The Code of Criminal Procedure, 1973 5
S. 100, The Indian Penal Code, 1860 8
S. 105, The Indian Evidence Act, 1872 9
S. 118, The Evidence Act, 1872 4
S. 27, The Evidence Act, 1872 4
S. 300, The Indian Penal Code, 1860 10
S. 302, The Indian Penal Code, 1860 2
S. 304, The Indian Penal Code, 1860 15
S. 316, The Code of Criminal Procedure, 1973 5
S. 34, The Indian Penal Code, 1860 13
S. 374 (2), The Code of Criminal Procedure, 1973 1
S. 54(2), The Code of Criminal Procedure, 1973 5
S. 8, The Indian Evidence Act, 1872 2
S. 80, The Indian Penal Code, 1860 11
S. 96, The Indian Penal Code, 1860 12
S. 99, The Indian Penal Code, 1860 8, 10

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STATEMENT OF JURISDICTION

The Hon’ble High Court of Bombay has jurisdiction to hear the present matter under Section

374 of Code of Criminal Procedure, 1973.

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STATEMENT OF FACTS

BACKGROUND

Babanrao Lokhande was running the Dhaba of Rajesh Bhende on rent. Rajesh’s house is

adjacent to the Dhaba and Jitu Borkar who is the Truck driver of Rajesh reside on rent in the

said house with his wife Manju Borkar, daughter Varsha and his son Vinod. Fatema Khan is

in a live in relationship with Rajesh. Parag Hirulkar is the Son-in-Law of Rajesh and has a

pan shop near the Dhaba.

THE INCIDENT

On 10th Jan, 2019 Rajesh came to the Dhaba and meanwhile, Jitu also came there. Jitu hurled

abuses at Rajesh when he told Jitu to pay the rent or vacate the house to which Jitu said ‘I

will have physical relationship with Fatema’ and thereafter, Rajesh gave a slap to Jitu. This

tussle turned into a fight and Jitu took out a knife and tried to stab Rajesh but in attempt to

save his life Rajesh snatched the knife from Jitu and gave a blow to Jitu. Thereafter, Fatema

and Manju rushed to the spot. Jitu tried to get up and upon seeing him attack Rajesh, Parag

rushed near the spot. Fatema held Manju when she ran towards Rajesh but Manju pushed

Fatema back and in repulsion fell on the knife being in Rajesh’s hand, which led to her death.

ENSUING EVENTS

Babanrao gave the information about the incident to the police station over mobile phone.

Police reached the spot and the entire incident was narrated by Babanrao and Varsha to the

police. Case was registered and the bodies were sent for the post mortem. Police arrested the

Accused persons on 18.01.2019 and Rajesh made the disclosure statement u/s 27 of the

Evidence Act, 1872. The Investigation Officer recorded the statement of the witnesses and all

thirteen articles were sent to the chemical examiner under the requisition.

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The case is now listed in the Bombay High Court for an appellate hearing after the trial court

convicted Rajesh Bhende and Parag Hirulkar under Section 302 r/w Section 34 of IPC.

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STATEMENT OF CHARGES

Rajesh s/o Leman Bhende and Parag s/o Vaman Hirulkar have been charged with Section 302

read with Section 34, Indian Penal Code, 1860.

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SUMMARY OF ARGUMENTS

ISSUE [I]. THE PRESENT APPEAL IS MAINTAINABLE IN THE BOMBAY HIGH COURT.

The Appellants have approached the Bombay High Court against the decision of the Court of

Sessions. The present appeal is maintainable under Section 374 of Cr.P.C., 1973 because the

Court of Sessions has failed to appreciate the evidences beyond and the case reasonable

doubt and has hence, erroneously convicted the Appellants for the offence of murder.

ISSUE [II]. ACCUSED 1 IS NOT LIABLE FOR THE OFFENCE OF MURDER UNDER SECTION

302 R/W 34 OF INDIAN PENAL CODE, 1860.

It is submitted that Rajesh Bhende is not guilty of the offence under Section 302 r/w Section

34 of the Indian Penal Code. The Prosecution has failed to adequately establish and the mens

rea and the actus reus of the accused required to prove the crime. Moreover, Procedural

lapses are fatal to the case of prosecution, which tainted the legality of the proceedings

resulted in miscarriage of justice and caused prejudice to appellants to prove his innocence.

Therefore, a case beyond reasonable doubt could not be established by the prosecution which

is sufficient to give the benefit of doubt to Accused 1.

ISSUE [III]. IN ARGUENDO, ACCUSED 1 EXERCISED THE RIGHT OF PRIVATE DEFENCE

AGAINST DECEASED 1 UNDER SECTION 96 READ WITH SECTION 100 OF THE INDIAN PENAL

CODE, 1860.

It is submitted that Rajesh Bhende can avail the right to private defence against Jitu Borkar as

he was free from fault in bringing about the encounter, an impending peril to his life or of

great bodily harm was present. Therefore, it was necessary for him to retaliate as he had no

reasonable chance of escape.

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ISSUE [IV]. IN ARGUENDO, THE ACT OF ACCUSED 1 AMOUNTS TO CULPABLE HOMICIDE

UNDER EXCEPTION II OF SECTION 300 OF THE INDIAN PENAL CODE, 1860.

It is humbly submitted that the force used under such apprehension was beyond the

permissible extent, even if the court decides otherwise, the act of Rajesh Bhende will be an

offence under with Section 304, IPC and not under Section 302, IPC, 1860.

ISSUE [V]. IN ARGUENDO, THE ACT WAS DONE UNDER SUDDEN AND GRAVE

PROVOCATION WITHIN THE EXCEPTION I OF SECTION 300 OF INDIAN PENAL CODE, 1860.

It is submitted that Jitu Borkar caused provocation to Rajesh Bhende in the first place by

abusing Rajesh and making a sexual comment against Fatema. Without the chain of causation

being broken and absence of any reasonable cooling down period being evident, the death of

Jitu Borkar has resulted under grave and sudden provocation within the Exception I of

Section 300, IPC, 1860.

ISSUE [VI]. THE ACT OF ACCUSED 1 AGAINST DECEASED 2 WAS DONE BY ACCIDENT

UNDER SECTION 80 OF THE INDIAN PENAL CODE.

It is submitted that the act of Rajesh Bhende is done by accident or misfortune against Manju

Borkar as the act was done in an accident, without any criminal intention or knowledge, the

act was being done in a lawful manner by lawful means and with proper care and caution.

ISSUE [VII]. ACCUSED 2 IS NOT LIABLE FOR THE OFFENCE OF MURDER UNDER SECTION

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

It is submitted that Parag Hirulkar did not have the common intention to commit the offence

as there was no prior meeting of minds and he did not share the intention with Rajesh.

Moreover, Parag did not participate in the act and in furtherance, no criminal act was done.

ISSUE [VIII]. MITIGATING FACTORS CALL FOR LENIENCY OF PUNISHMENT.

It is submitted that considering the grounds of mitigating the punishment will help Rajesh

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Bhende and Parag Hirulkar to lead a more dignified and lawful life.

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ARGUMENTS ADVANCED

I. THE PRESENT APPEAL IS MAINTAINABLE IN THE BOMBAY HIGH COURT

It is humbly submitted before the Hon’ble High Court that the present appeal from the

judgment of the Court of Sessions is maintainable under Section 374 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'). The appeal is maintainable as, the High

Court has jurisdiction to hear the appeal under Section 374 of Cr.P.C. [I]; and, the Judgment

of the Court of Sessions was erroneous [II].

I. The High Court has jurisdiction to hear the present appeal under S. 374 of Cr.P.C.

An appeal is indisputably a statutory right and an offender who has been convicted is entitled

to avail this right which is provided under Section 374 of the Cr.P.C.1 The said provision

states that, if a trial is held by the Sessions Judge in which a sentence of imprisonment of

more than seven years has been passed, an appeal would lie to the High Court.2 The High

Court has full power to re-appreciate the evidence and come to a conclusion independently.3

In the present case, both the Accused were sentenced to imprisonment for life. Therefore, the

Appellants fulfill the criterion given under Section 374 (2) and have the right to appeal.

II. The Judgment of the Court of Sessions was erroneous

It is submitted that in the present case, the Court of Sessions has erroneously convicted the

Appellants. The Prosecution failed to establish the guilt of the Appellants beyond reasonable

doubt. Additionally, the Court in its judgment failed to appreciate the evidences and,

1 Badri v. State of Rajasthan, (2000) 10 SCC 246.

2 S. 374 (2), The Code of Criminal Procedure, 1973.

3 State of Karnataka v. Papanaika, AIR 2004 SC 4967, 10; Mahesh s/o Janardhan Gonnade v. State of

Maharashtra, (2008) 13 SCC 271, 21; Arun v. State by Inspector of Police Tamil Nadu, AIR 2009 SC 1256.

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prejudicially held Rajesh Bhende (hereinafter as ‘Accused 1’) and Parag Hirulkar

(hereinafter as ‘Accused 2’) guilty of the offence u/s 302 read with section 34 Indian Penal

Code, 1860 against Jitu Borkar (hereinafter as ‘Deceased 1’) and Manju Borkar (hereinafter

as ‘Deceased 2’), never committed by them. Therefore, the present appeal before the Bombay

High Court against the Judgment of Court of Sessions is maintainable.

II. ACCUSED 1 IS NOT LIABLE FOR THE OFFENCE OF MURDER UNDER SECTION 302 R/W 34

OF INDIAN PENAL CODE, 1860

It is humbly submitted that the Court of Sessions has greatly erred in holding Accused 1

liable under Section 3024 of the Indian Penal Code, 1860 (hereinafter as 'IPC') as the

Respondent has failed to adequately establish the required mens rea [I]; the actus reus of the

crime [II]; Procedural lapses are fatal to the case of prosecution [III]; Hence, the Prosecution

has failed to establish the case beyond reasonable doubt [III].

I. Mens Rea of Accused 1 has not been established

It is submitted that the Prosecution has failed to establish the mens rea on the following

grounds: Accused 1 did not have the motive to commit the offence [A]; Accused 1 did not

have the intention to commit the offence [B].

A. Accused 1 did not have the motive to commit the offence

Motive5 is something which prompts a man to form an intention.6 Previous threats, previous

litigations, previous altercations and past enmity7 between parties are admitted to show

4 S. 302, The Indian Penal Code, 1860.

5 S. 8, The Indian Evidence Act, 1872.
6 Basdeo v. State of Pepsu, AIR 1956 SC 488.
7 Sonelal v. State of Uttar Pradesh, AIR 1978 SC 1142.

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motive.8 When motive cannot be established other evidence has to be scrutinized closely.9

In the present case, there is no evidence to affirm the existence of any past quarrel or old

enmity of Accused 1 with both the deceased. In absence of enmity, no malice existed in the

mind of Accused 1 to cause any harm to Deceased 1 or Deceased 2. Even though a monetary

dispute did exist between them, it was, however, trivial in nature and the same could not have

been a valid motive to harm Deceased 1. Therefore, motive has not been established.

8 Chhotka v. State, 1958 Cal 482.

9 Atley v. State, AIR 1955 SC 807.

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B. Accused 1 did not have the intention to commit the offence

In absence of intention10 to cause death or knowledge that it might cause death, accused is

neither guilty of murder nor even culpable homicide.11 It is the injury, the part of the body

where it is caused,12 the amount of force employed,13 motive for the crime, severity of the

blow,14 which are the indicators of the fact whether accused caused the death of deceased

with an intention of causing death or not.15

In the present case, the acts of Accused 1 do not point to any possibility of premeditation or

any expectation of consequences or preplanning to commit the offence he is charged under,

unlike Deceased 1 who had come with due preparation and a weapon. The fact that the crime

scene is a public and crowded place and is 1 km near the police station, the position of single

blow on the body of deceased 1 and circumstances in which death resulted can explain that

Accused 1 did not have the intention to commit the offence. Therefore, the intention and

knowledge requisite for an offence under S. 302 I.P.C. has not been established.

II. Actus Reus has not been established

It is submitted that in the present case, the Prosecution has failed to establish the actus reus

on the following grounds: Statement of PW1 cannot be relied upon [A]; Statement of PW3 is

subject to strict scrutiny [B]; Disclosure statement of Accused 1 under Section 27 of Indian

Evidence Act, 1872 (hereinafter as ‘IEA’) is inadmissible [C].

A. Statement of PW 1 cannot be relied upon

10 Ram Kumar v. State, AIR 1970 Raj 60.

11 Balwinder Singh v. State of Punjab, 1989 CriLJ 718 (Punj).
12 State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264.
13 Dharma @ Dharam Singh v. State (Delhi Administration), 1980 CriLJ 1394.
14 Hari Kishen & State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127.
15 State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264.

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Discrepancies in evidence of eyewitnesses become a ground for disbelieving and discrediting

their testimony, if their testimony is found to be in conflict and contradiction with other

evidences or with statements already recorded, in such a case witnesses may not inspire

confidence and it cannot be held that prosecution proved its case beyond reasonable doubt.16

In the present case, there is contradiction between the time of occurrence of crime mentioned

in the FIR and that in the Oral Report of PW 1.17 The time specified in FIR, if considered to

be true, then the victims, in such case, died not due to the alleged assault by Accused 1 but

due to an unreasonable delay in being taken to the hospital. Moreover, the number of injuries

sustained by Deceased 1 was stated wrongly as twice by PW 1,18 and is contradictory to the

Post Mortem Report.19 Therefore, the testimony of PW 1 did not pass the strict scrutiny

owing to the discrepancies it contains and no material corroboration being made.

B. Statement of PW 3 is subject to strict scrutiny

Evidence of child witness must be evaluated carefully with close scrutiny20 & must find

adequate corroboration as a child may easily be tutored and swayed by what others tell him.21

In the present case, PW 3 is the daughter of both the deceased. The Court of Sessions blindly

relied on the testimony of PW 3 by considering the age of PW 3 without any strict scrutiny. It

didn’t consider the assumption of tutoring of child witness and erred in analyzing her

statements. Therefore, the statement of PW 3 is subject to strict scrutiny to be relied upon.

16Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Sunil Kumar Sambhudayal Gupta v.
State of Maharashtra, (2010) 13 SCC 657.
17 Moot preposition, Pg 4, 6.
18 Moot preposition, Pg 6, 20.
19 Moot preposition, Pg 9.
20Narayan Kanu Datavale v. State of Maharashtra, 1997 CriLJ 1788 (Bom); State of Maharastra v. Prabhu
Barku Gade, 1995 CriLJ 1432 (Bom).
21S. 118, The Evidence Act, 1872; State of Uttar Pradesh v. Ashok Dixit, (2000) 3 SCC 70; Panchhi v. State of
Uttar Pradesh (1998) 7 SCC 177; State of Rajasthan v. Om Prakash, (2002) 5 SCC 745.

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C. Disclosure statement of Accused 1 under Section 27 of IEA, 1872 is inadmissible

It is humbly submitted that the disclosure statement under Section 2722 made by Accused 1 is

not admissible on following grounds: The statement given was not voluntary23 [a]; there was

no discovery of facts subsequent to the information given u/s 27 [b]; and there is no nexus

between the fact discovered and the commission of the offence [c].24

a. The Statement given was not voluntary

If a confessional statement is made involuntarily,25 or under undue pressure and compulsion

from investigating officer,26 the evidentiary value of such a statement leading to the recovery

is nullified.27 When any person is arrested, he shall be examined by a medical officer28 and a

copy of the report of such examination shall be furnished to the arrested person.29

In the present case, the statement30 of Accused 1 is nullified as it was made under undue

pressure and compulsion. This can also be understood in light of the absence of any medical

examination report of Accused 1 been presented in the court of law in order to prove that the

statement was voluntary in nature and no physical harm was being inflicted on Accused 1.

b. There was no discovery of facts subsequent to the information given u/s 27

All the proceedings of the search should be recorded very clearly stating the identity of the

22 S. 27, The Evidence Act, 1872.

23 Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355.
24Earabhadnappa v. State of Karnataka, AIR 1983 SC 446, 449; Avter Singh v. State of Rajasthan, AIR 2004 SC
2865.
25 Art. 20(3), The Constitution of India.
26 S. 316, The Code of Criminal Procedure, 1973.
27 S. v. Kathi Kalu, AIR 1961 SC 1808; Ashish Jain v. Makrand Singh, (2019) SCC OnLine SC 37; Ramni v.

State of Madhya Pradesh, AIR 2000 SC 29.

28 D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
29 S. 54(2), The Code of Criminal Procedure, 1973.
30 Moot Preposition, Pg 16.

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place to be searched, all the spaces which are searched and descriptions of all the articles

seized.31

In the present case, the information given by Accused 1 did not lead to the discovery of the

knife owing to the omission on part of prosecution to mention the place from where the knife

was confiscated. Moreover, there is a due suspicion on the presence of panchas at the time of

seizure, as neither was their statements recorded nor was their signatures taken at the spot.

c. No nexus of knife with the commission of the offence

Recovery affected under S. 27 would become relevant and important, if only the recovered

items were used in the commission of offence.32

In the present case, the knife discovered by the police is not used in the commission of

offence, owing to the absence of any chemical analysis of the blood stained present on the

discovered knife and thus was not matched with the blood of Deceased 1.

Therefore, the Disclosure Statement of Accused 1 under S. 27 of IEA, 1872 is inadmissible.

III. Procedural lapses are fatal to the case of prosecution

It is humbly submitted that procedural lapses namely: Medical examination of the accused by

medical officer was not conducted under section 54 of Cr.P.C [A]; The FIR is fabricated [B];

the testimony of a relevant witness was omitted [C]; tainted the legality of the proceedings

resulted in miscarriage of justice and caused prejudice to accused to prove his innocence.33

A. Medical examination of the accused was not conducted under section 54 of Cr.P.C.

When any person is arrested, he shall be examined by a medical officer34 and a copy of the

31S. 100, The Code of Criminal Procedure, 1973; Yakub Abdul Razak Memon v. State of Maharashtra, (2013)
13 SCC 1.
32 Onteru Venkata Suba Reddy v. State of Andhra Pradesh, 2008 CriLJ 2870, 2873.
33 Iqbal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC 140.
34 Supra 28.

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report of such examination shall be furnished by the said medical officer to the arrested

person.35

In the present case, there is no such evidence of the record prepared and furnished by medical

officer to the accused and the same was not presented by Investigative agency and not even

attached with the required documents, and is thus fatal to the case of prosecution.

B. The FIR is fabricated

In view of the inconsistent version as to the time of occurrence, the FIR is not free from

doubt and shakes the very credibility of the prosecution case and evidence of prosecution

witnesses, In the light of this, court has set aside the conviction imposed upon the appellant.36

In the present case, the time of occurrence mentioned in the FIR i.e. 8:30 – 9:15 P.M. is

inconsistent with the time of death of deceased 2 i.e. 8:35 P.M. as mentioned in the post

mortem report and 6:30 P.M. as mentioned in the oral report of PW 1. Further, addition of the

statement ‘illicit relationship’ in the FIR, which is not mentioned in the Oral Report, creates

the relevant doubt on genuineness of the FIR.

C. The testimony of a relevant witness was omitted

If a material witness has been deliberately and unfairly held back, then a serious reflection is

casted on the propriety of the trial itself and the validity of the conviction resulting from it

may be open to challenge.37

In the present case, Balu Bobde was present on the spot at the time of occurrence of the

crime, and the testimony of the eyewitness has not been recorded by the investigating agency

and the same is relevant as PW1 stated that Balu Bobde gave a kick blow to Accused 1

35 Supra 29.
36 Kumar Alias Thambi v. State, 2012 CriLJ 2673.
37 Dina Bandhu v. State of Orissa, AIR 1972 SC 180.

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suggesting that Accused 1 was also subjected to some physical injuries.

Therefore, these procedural lapses caused prejudice to the accused to prove his innocence.

IV. The Prosecution has failed to establish the case beyond reasonable doubt

It is submitted that in order to prove a case “beyond reasonable doubt”, the doubt must be a

fair doubt based upon reason and common sense arising out of the evidence of the case.38 If

the courts entertain reasonable doubt regarding the guilt of the accused, the benefit of doubt

should be given to the Accused.39

In the present case, the Prosecution has failed to establish a chain of circumstances,

conclusive of the guilt of the Appellant and the court has failed to appreciate the evidences.

Therefore, in light of the above stated arguments, the doubt cast upon the story of the

Prosecution by the Appellant is sufficient to give the benefit of doubt to the Appellant.

Therefore, it is humbly submitted before this Hon’ble Court that the charge under Section

302 of the IPC has not been made, and hence Appellant should be acquitted for the same.

III. IN ARGUENDO, ACCUSED 1 EXERCISED THE RIGHT OF PRIVATE DEFENCE AGAINST

DECEASED 1 UNDER SECTION 96 READ WITH SECTION 100 OF THE IPC, 1860

It is humbly submitted that in order to exercise the defence under Section 100,40 four cardinal

conditions,41 and limitations provided by Section 99;42 must be satisfied namely, the accused

must be fault free from bringing about the encounter [I]; there must be present an impending

38 Ramakant Rai v. Madan Rai, (2004) Cri LJ 36 (SC).

39 Aher
Raja Khima v. State of Saurashtra, (1955) 2 SCR 1285; Kali Ram v. State of Himachal Pradesh, (1973) 2
SCC 808.
40 S. 100, The Indian Penal Code, 1860.

41Rama Yashwant Kamat v. State, 1978 SCC Online Bom 208; Balbir Singh v. State, 1959 SCC Online P&H
53; Brij Lal v. State of Rajasthan, 2006 SCC Online Raj 772; State of Karnataka v. Shiva Shanker, 1978 Kant LJ
197, 200.
42S. 99, The Indian Penal Code, 1860; Puran Singh v. State of Punjab, (1975) 4 SCC 518; Brij Lal v. State of
Rajasthan, 2006 SCC Online Raj 772.

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peril to life or of great bodily harm, either real or so apparent43 [II]; There must be no

sufficient time for recourse to the public authorities [III]; and there must have been a

necessity for taking life44 [IV]; More harm than necessary should not have been caused [V].

I. Accused 1 is fault free from bringing about the encounter

Unlawful aggression is an attack or material aggression, an offensive act positively

determining the intent of the aggressor to cause an injury on the life and limb of a person.45

The test to determine who was non-aggressive party; is the unpreparedness for attack.46

In the present case, Accused 1 did not do anything and was not prepared for any attack so as

to catalyze or encourage the encounter between deceased 1 and him. However, the act of

deceased 1 of carrying a knife with him confirms the preparedness on part of deceased 1.

Also the fact that he attacked Accused 1 first with the knife itself establishes his mala fide

intention and renders Accused 1 fault free from bringing about the encounter.

II. The apprehension of death or grievous hurt was real.

This right may extend to voluntarily causing death or causing any other harm to the assailant

if the offence which occasions the exercise of the right is such as may reasonably cause the

apprehension of death,47 sustaining of injury is not necessary48 and the act in defence is

warranted and justified.49 The burden of establishing the plea of self-defence is on the

43 Puran Singh v. State of Punjab, (1975) 4 SCC 518.

44 Raj Singh v. State of Haryana, (2015) 6 SCC 268.
45 People v. Dagani, 499 SCRA 64; People v. Dela Cruz, 400 Phil. 872; Cabuslay v. People, 471 SCRA 241.
46Gordhan v. State of Rajasthan, 1986 SCC OnLine Raj 75; Chettapan Nair v. State of Kerala, 1960 Ker LT
965.
47 Darshan Singh v. State of Punjab & Anr., (2010) 2 SCC 333.
48 Sunil Gangrade v. State of Madhya Pradesh, 1997 (2) MP LJ 133.
49 Supra 40; Sivapada Senapaty v. State, AIR 1969 Cal 28; Supra 47.

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accused50 and the burden stands discharged by showing preponderance of probabilities.51

In the present case, Accused 1 caused an injury to Deceased 1 in exercise of his right of

private defence as laid down in the clause firstly of Section 100 IPC. Deceased 1 was the

unlawful aggressor, who took out the knife and attacked Accused 1 and thus created real

apprehension of causing death or grievous hurt to Accused 1. Accused 1 in saving himself

from the aggression, snatched the knife from deceased 1, in course of exercising the private

defence and gave a blow to deceased 1, which resulted in his undesirable death.

III. There was no sufficient time for recourse to the public authorities.

There is a duty casted on every person faced with apprehension of imminent danger of his

person or property to seek the aid of the machinery provided by the State but if immediately

such aid is not available, he has the right of private defence.52

In the present case, it can be reasonably inferred that Accused 1 being already under attack

and in danger and thus did not have the means to escape the encounter or to take aid of the

state machinery and hence had to act in accordance with his right to private defence.

IV. Retaliation was necessary

A person who is unlawfully attacked has every right to counteract and attack upon his

assailant and cause such injury as may be necessary53 to ward off the apprehended danger.54

In the present case, the apprehension of death being real, which if not for the timely retaliated

from Accused 1, could have been fatal for his life. Therefore, the force used by Accused 1

against the deceased was necessary and warranted.

50 S. 105, The Indian Evidence Act, 1872.

51 Rizan v. State of Chhattisgarh, AIR 2003 SC 976.
52 State of Orissa v. Rabindranath Dalai and Anr., 1973 CriLJ 1686 (Orissa).
53 Laxman Sahu v. State of Orissa, 1986 (1) Supp SCC 555; Supra 47.
54 Kashmiri Lal & Others v. State of Punjab, (1996) 10 SCC 471.

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V. More harm than necessary was not caused.

The injury which is inflicted by the person exercising the right should be commensurate to

the injury with which he is threatened.55 The person facing a reasonable apprehension of

threat to himself cannot be expected to weigh “with golden scales” 56 and modulate his

defence step by step with any arithmetical exactitude.57

In the present case, Accused 1 was not prepared for the attack and the incident took place in

spur of the moment which did not give requisite time to Accused 1 to think or calculate the

amount of defence or the kind of force necessary to repel the danger. Further, Accused 1

inflicted a single blow which is justified & commensurate to the attack of Deceased 1.

Therefore, it is submitted that Accused 1 fulfilled the requisite conditions & limitations of

right to private defence and should not be held liable for the offence of murder.

IV.IN ARGUENDO, THE ACT OF ACCUSED 1 AMOUNTS TO CULPABLE HOMICIDE UNDER

EXCEPTION II OF SECTION 300 OF THE INDIAN PENAL CODE, 1860

It is humbly submitted that culpable homicide is not murder58 if the offender, in good faith, in

the exercise of the right of private defence of person or property, exceeds the power given to

him by law and causes the death of the person without pre-meditation, and without any

intention of doing more harm than is necessary for the purpose of such defence.59

In the present case, attacking deceased 1 was done in private defence and was a matter of

necessity for Accused 1. On the question whether the force used under such apprehension

55 S. 99, The Indian Penal Code, 1860.

56 Supra 47; Dhansingh Nath v. State of Assam, 1978 CriLJ (NOC) 10 Gau.
57Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC 244; James Martin v. State of Kerala, (2004) 2 SCC
203.
58 S. 300, The Indian Penal Code, 1860.
59Kashi Ram and Ors. v. State of Madhya Pradesh, AIR 2001 SC 2902; State of Andhra Pradesh v. Rayavarappu
Punnayya, AIR 1977 SC 45; Chaco @ Aniyan Kunju v. State of Kerala, (2004) 12 SCC 269.

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was beyond the permissible extent, even if the court decides otherwise, the act of the accused

will fall under exception II of section 300 of the Indian Penal Code, 1860.

V. IN ARGUENDO, THE ACT OF ACCUSED 1 WAS DONE UNDER SUDDEN AND GRAVE

PROVOCATION WITHIN THE EXCEPTION I OF SECTION 300 IPC, 1860

It is humbly submitted that to obtain the benefit of Exception 1 to Section 300 IPC,60 it must

be proved that the accused by words caused provocation61 and that the provocation should be

such as to cause a reasonable man to lose his power of self control and should have actually

caused in the accused, a sudden and temporary loss of self control.62

In the present case, it was Deceased 1 who started abusing Accused 1 and made a sexual

comment against DW. Whilst under such provocation, without the chain of causation being

broken and absence of any reasonable cooling down period being evident in the

circumstances of the case, the act of accused 1 slapping deceased 1 and the act of deceased 1

taking out a knife and the subsequent retaliation by accused 1, consequentially causing the

death of deceased 1 was entirely in fit of the moment.

Having regard to the totality of the facts and circumstances of the case and not in its bits and

pieces,63 it is submitted that the case comes under the Exception I of Section 300, IPC.

VI. THE ACT OF ACCUSED 1 AGAINST DECEASED 2 WAS DONE BY ACCIDENT UNDER

SECTION 80 OF THE INDIAN PENAL CODE, 1860

It is humbly submitted that to attract the protection under Section 80 IPC,64 aforesaid

60 Supra 58.
61K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605; State of Karnataka v. Kamalaksha, 1978 CriLJ
290.
62Chand Singh v. State of Rajasthan, 1971 CriLJ 1501; Bala Sahib v. State of Maharashtra, 1984 CriLJ 1014
(Bom).
63 Nawaz v. State Rep. by Inspector of Police, 2019 SCC OnLine SC 67.
64 S. 80, The Indian Penal Code, 1860.

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circumstances must be shown to have existed at the time of the incident; That the act was

done by accident or misfortune [I]; without any criminal intention or knowledge [II]; in a

lawful manner by lawful means [III]; and with proper care and caution [IV].65

65Atmendra v. State of Karnataka, AIR 1998 SC 1985; Sukhdev Singh v. Delhi State (Govt of NCT of Delhi),
AIR 2003 SC 3716.

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I. The act was done by accident or misfortune

An effect is said to be accidental when the act by which it is caused is not done with the

intention of causing it, and when its occurrence as a consequence of such act is not so

probable that a person of ordinary prudence ought, under the circumstances in which it is

done, to take reasonable precaution against it.66

In the present case, during the scuffle between Accused 1 and Deceased 1, Deceased 2

intervened and ran toward Accused 1, DW tried to grab her so as to stop Deceased 2 from

attacking Accused 1 but unexpectedly, Deceased 2 pushed DW back and due to repulsion,

Deceased 2 unknowingly fell on the knife being in hand of Accused 1 and accidently injured.

II. The act was done without any criminal intention or knowledge

The purely accidental consequences of a man’s voluntary conduct will not be imputed on

him, if he had no criminal intention or knowledge and his conduct is lawful.67

In the present case, the acts of the accused 1 do not point to any possibility of premeditation

or preplanning. There was a clear absence of intention and knowledge on the part of Accused

1 with regards to the death of deceased 2 that the injury was sustained by deceased 2

accidentally and Accused 1 is protected under the section 80.

III. The act was being done in a lawful manner by lawful means

Accused 1 was engaged in the lawful act68 of exercising private defence against Deceased 1.

Holding a knife in his hand without any intention to harm anyone with it, when having the

apprehension of a further attack, amounts to an act done in a lawful manner by lawful means.

This is more so, when Accused 1 was already attacked by deceased 1 and is frightened by

66 J. F. Stephen, A Digest of Criminal Law, 316 (9th ed., 1950).

67 R. v. Murray, 5 Cox CC 509.
68 S. 96, The Indian Penal Code, 1860.

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apprehension of death.

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IV. The act was being done with proper care and caution

The accidental act should not only be without any criminal intention and a lawful act, but said

lawful act should also have been exercised with ‘proper care and caution’.69

In the present case, after exercising private defence against Deceased 1, the knife came into

the hand of Accused 1 and by holding the knife, Accused 1 only intended to protect himself

from any further attack, taking proper care & caution of not doing any harm to anyone.

Therefore, to convict Accused 1 on account of accident would be an act of atrocious injustice.

Hence, Accused 1 is entitled to the benefit of Section 80, IPC, 1860.

VII. ACCUSED 2 IS NOT LIABLE FOR THE OFFENCE OF MURDER UNDER SECTION 302 R/W

34 OF INDIAN PENAL CODE, 1860

It is humbly submitted that the necessary conditions70 for the application of Section 3471 of

the IPC are; there was common intention to commit an offence72 [I]; Participation by all the

accused in doing criminal act73 [II]; the crime was actually committed by them in furtherance

of that common intention74 [III].

I. Accused 2 did not have the common intention to commit the offence

It is submitted that Accused 2 did not have the common intention to commit an offence as;

No prearranged plan existed between Accused 1 and Accused 2 [A]; Accused 1 did not share

the intention with Accused 2 [B].

69State of Government of Madhya Pradesh v. Rangaswamy, AIR 1952 Nag 268; Shankar Narayan Bhadolkar v.
State of Maharashtra, AIR 2004 SC 1966; Bhupendrasingh A Chudasama v. State of Gujarat, AIR 1997 SC
3790.
70 Chandrakant Murgyappa Umrani v. State of Madhya Pradesh, AIR 1999 SC 1557.
71 S. 34, The Indian Penal Code, 1860.
72 Surendra Chauhan v. State of Madhya Pradesh, (2000) 4 SCC 110.
73Gurdatta Mal and Ors. v. State Of Uttar Pradesh, AIR 1965 SC 257; Dharnidhar v. State of Uttar Pradesh,
(2010) 7 SCC 759.
74 Balu v. State (UT of Pondicherry), (2016) 15 SCC 471.

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A. No prearranged plan existed between Accused 1 and Accused 2

If the prosecution has failed to bring any material on records to show that there had been any

prearranged plan75 so as to hold that an accused had any common intention to commit the

alleged offence, 76 the accused deserves a benefit of doubt and the consequential acquittal.77

In the present case, there is no evidence to prove the existence of any past quarrel or enmity

between Accused 2 and Deceased 1 as to create a criminal motive or intention. Moreover,

Accused 2 did not come on the spot with Accused 1 and reached the spot after the

commission of the alleged act and had not done any overt act against deceased 1; evinces that

Accused 2 didn’t have any prior knowledge of the happening of such act.

B. Accused 1 did not share the intention with Accused 2

It is necessary that the intention of each one of ‘several persons’ be known to each other for

constituting ‘common intention’.78

In the present case, the sole intention of Accused 2 reaching near the spot, was to defend his

Father in law i.e. Accused 1. Moreover, without any prior meeting of minds and preconcert

between Accused 1 and Accused 2, no circumstantial act has been established which shows

that Accused 1 shared the intention with Accused 2 of attacking or causing any harm to the

deceased persons.

II. Accused 2 did not participate in the act

The dominant feature of Section 34 is the element of participation in actions79 and accused

75In Rishideo Pande v. State of Uttar Pradesh, AIR 1955 SC 331; Pandurang v. State of Hyderabad, AIR 1955
SC 216; Krishnan v. State, (2003) 7 SCC 56.
76 Jarnail Singh v. State of Punjab, AIR 1982 SC 70.
77 Idrish Bhai Daudbhai v. State of Gujarat, (2005) 3 SCC 277.
78 Dajya Moshaya Bhil v. State of Maharashtra, AIR 1984 SC 1717.
79 Krishnan v. State, (2003) 7 SCC 56.

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person can be convicted of that crime, only if he has participated in that common intention.80

Only the presence of accused by itself would not attract the provisions of Section 34, IPC.81

In the present case, the act against Deceased 1 was already committed before any interference

by Accused 2. Further Accused 2 did not do any act against Deceased 2 after reaching to the

spot and did not interfere or assist Accused 1 and thus did not participate in the act.

Moreover, absence of blood stain on the clothes of Accused 2 and absence of statement in the

FIR as regards to show participation of Accused 2 in the criminal act to hold him guilty for

the commission of the offence clearly justifies the non-participation of Accused 2 in the act.

III. In furtherance, no criminal act was done.

Section 34 can only be applied when a ‘criminal act’82 is done by several persons ‘in

furtherance’83 of the ‘common intention’ of all.84

In the present case, in absence of any common intention of Accused 2, No criminal act would

be said to have been done u/s 34 by Accused 2. Further, no criminal act was committed by

Accused 2 against Deceased 1 and Deceased 2 in furtherance of the reaching of Accused 2

near the spot. Hence, Accused 2 is not liable for the offence of murder u/s 302 r/w 34 of IPC.

VIII. MITIGATING FACTORS CALL FOR LENIENCY OF PUNISHMENT

It is submitted that if the court decides otherwise, the act of the both the accused will be an

offence under with Section 304 IPC85 and not under Section 302. Some of the major grounds

that courts have considered in mitigation of punishment are (i) absence of bad intention; (ii)

80 Supra 74; Bashir v. State of Uttar Pradesh, 1953 CriLJ 1505.

81 Nagaraja v. State of Karnataka, (2008) 17 SCC 277.
82 Barendra Kumar Ghosh v. Emperor, ILR 52 Cal 197.
83 Shankarlal Kacharabhai v. State of Gujarat, (1965) 2 CriLJ 226.
84Supra 71; Joginder Ahir v. State of Bihar, (1971) 3 SCC 449; Mahbub Shah v. King-Emperor, LR 72 IA 148,
153.
85 S. 304, The Indian Penal Code, 1860.

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provocation; (iii) self-preservation; (iv) transgression of the limit of self-defence.86

It is humbly contended before the Hon’ble Court that considering the grounds for mitigating

the punishment will help both the Accused, to lead a more dignified and lawful life.

Sentencing them to an unreasonable period will transform them into criminals and their

future will be robbed. Neither are they habitual offenders nor do they have any previous

criminal records. Therefore, it is humbly requested before the Hon’ble Court to show

leniency in sentencing the Accused 1 and Accused 2 u/s 304-part II Indian Penal Code, 1860.

86Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947; Bachan Singh v. State of Punjab (1980) 2 SCC
684.

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PRAYER

In the light of the facts stated, arguments advanced and authorities cited, it is most humbly

prayed and implored before the Hon’ble High Court that it may be pleased to:

I. Set aside the judgement given by the Court of Sessions against Rajesh s/o Leman Bhende

and Parag s/o Vaman Hirulkar.

II. Acquit Parag s/o Vaman Hirulkar for the offence of murder under Section 302 read with

section 34 of the Indian Penal Code.

III. Acquit Rajesh s/o Leman Bhende for the offence of murder under Section 302 read with

section 34 of the Indian Penal Code.

Also, pass any other order that it may deem fit in favour of the Appellants in the light of

equity, justice and good conscience.

For this act of kindness, the Appellants shall duty bound forever pray.

Place: Nagpur S/d

Dated: 17th March, 2019 Counsel for Appellants

***

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