SCHOOL OF LAW, UNIVERSITY OF KASHMIR

SCHOOL OF LAW,
UNIVERSITY OF KASHMIR

8/15/2020
PAPER: MOOT COURT SUBMITTED TO: DR. MIR JUNAID ALAM
ENROLLMENT NO: 16042122054 ASST. PROF SCHOOL OF LAW,UOK
SEMESTER: BALLB 7th

INTERNAL MOOT COURT-2020

IN THE CASE OF SUKHDEV v. THE STATE (DELHI ADMINISTRATION)

MEMORIAL ON BEHALF OF THE PETITIONER

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 SCHOOL OF LAW, UNIVERSITY OF KASHMIR

IN THE HON’BLE HIGH COURT OF DELHI

IN THE MATTER OF

SUKHDEV. …APPELLANT
V.

THE STATE (DELH ADMINISTRATION) ... RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

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LIST OF ABBREVIATIONS .................................................................................. Page no:4

INDEX OF AUTHORITIES .................................................................................. Page no:5,6

STATEMENT OF JURISDICTION .......................................................................... Page no: 7

STATEMENT OF FACTS ...................................................................................... Page no: 8

STATEMENT OF ISSUE ..................................................................................... Page no: 9

SUMMARY OF ARGUMENTS ............................................................................. Page no:10

ARGUMENTS ADVANCED ......................................................... Page no: 11,12,,13,14,15,16

PRAYER........................................................................................................... Page no: 17

LIST OF ABBREVIATIONS

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 SCHOOL OF LAW, UNIVERSITY OF KASHMIR

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Co. Company

CompLJ Company Law Journal

Corpn. Corporation

Cr. Criminal

Edn. Edition

Govt. Government

Hon’ble Honourable

i.e. That is

Ltd. Limited

No. Number

Pvt. Private

QB Queens’ Bench

SC Supreme Court

SCC Supreme Court Cases

v. Versus

Vol. Volume

www World Wide Web

INDEX OF AUTHORITIES

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A. Table of Cases

S. No Name of the Cases and Case Citation

1) State of A. P v. Rayavarapu Punnayya, (1976) 4SCC 382

2) Abdul Waheed Khan v. State of A. P, (2002) 7SCC 175

3) Rajawat Singh v. State of Kerela

4) Virsa Singh v. State of Punjab

5) Murthuswamy v. State of Inspector of Police (1994) 1 Mad LW (Cri) 44

6) K.M Nanavati v. State of Maharashtra

7) R v. Mitchell 1983

8) R v Latimer (1886) 17 QBD 359

B. Books Recommended

1) K. D. Gaur, A text Book on Indian Penal Code, (Universal Law Publishing co.) (ed. 3rd) 2003

2) Ratanlal & Dhirajlal, The Indian Penal Code (Nagpur, Wadhwa) (ed. 31st) 2007

C. Journals Referred

All India Reporter

Supreme Court Cases

Indian Law Reporter

D. Database Referred

www.lexisnexis.com

www.manupatrafast.com

www.scconline.com

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F. Statute Referred

1. Indian Penal Code, 1860

2. Code of Criminal Procedure, 1973

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STATEMENT OF JURISDICTION

THE APPELLANT HAS APPROACHED THIS HON’BLE HIGH COURT OF DELHI UNDER
SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE 1973.

Section 374(2): Any person convicted on a trial held by a session judge or an Additional Sessions
Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven
years has been passed against him or against any other person convicted at the same trial, may
appeal to the High Court.

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STATEMENT OF FACTS

For the sake of convenience of this Hon’ble Court the facts of the present case are
summarised as follows:

1. That Sukhdev and his wife got into a quarrel about how the money was being spent by
the family.
2. Sukhdev alleged that Neeti had been extravagant beyond limits.
3. Neeti alleged that Sukhdev did not earn enough to sustain his family properly.
4. At one point, Neeti accused Sukhdev that he was thoroughly dishonest as he did not
show her all money he earned.
5. That Sukhdev got furious at this and took a sword which he dept over the mantle
piece and began to chase her.
6. That Neeti ran out of the front door, down the steps and tripped and fell down injuring
her nose.
7. Just at that moment, Sukhdev threw the sword at her which missed her because she
had fallen, but entered the abdomen of a person who was passing in the street just in
front of the house.
8. That the person died instantaneously of a ruptured spleen.
9. That sukhdev was prosecuted under sections 302 and 325 of IPC and was punished
under both the sections i.e. life imprisonment and for two imprisonments respectively.
10. That Sukhdev has appealed to the High Court of Delhi against his conviction and
sentence.

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STATEMENT OF ISSUE

Whether the accused acted under grave and sudden provocation?

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SUMMARY OF ARGUMENT

Whether the accused acted under grave and sudden provocation?

It is humbly submitted before this Hon’ble Court that the appellant ( Sukhdev) is not guilty of
committing murder as he did not intended to kill his wife( Neeti)when he throw sword at her but
that unintentionally and accidentally hit the stranger , who was passing in the street just in front of
the house. The appellant took the sword and began to chase his wife in a heat of moment after both
entered into verbal alteration over the issue of money and it is clear that provocation began from his
wife’s side when she made the statement that sukhdev was thoroughly dishonest as he never
disclosed all the money he earned. Thus appellant’s act does not fall under section 302 and 325 of
IPC and should be allowed to enjoy defence under section 299 of IPC.

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ARGUMENTS ADVANCED

The act of Sukhdev does not fall under definition of Murder but Culpable Homicide.

Murder v. Culpable Homicide

Murder is defined under section 300 anfd Culpable Homicide is defined under section 299 are two
offences under the IPC.

Section 299 and section 300 IPC deals with the definition of Culpable homicide and murder
respectively. Section 299 defines culpable homicide as the act of causing death; (i) with the intention
of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or
(iii) with the knowledge that such act is likely to cause death. The bare reading of the section makes it
crystal clear that the first and second clause of the section refers to intention apart from the knowledge
and the third clause refers to knowledge alone and not intention. Both the expressions “ intention” and
“knowledge” postulate the existence of a positive mental attitude which is of different degrees. The
mental element in culpable homicide i.e. mental attitude towards the consequence of conduct is one of
intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of
culpable homicide is said to have been committed. Section 300 IPC, however , deals with murder
although there is no clear definition of murder provided in 300 IPC. It has been repeatedly held by this
court that culpable homicide is the genus and murder is the species and that all murders are culpable
homicide but not vice versa. Section 300 IPC further provides for the exception which will constitute
culpable homicide not amounting to murder and punishable under section 304. When and if there is
intent and knowledge then the same would be a case of section 304 part first and if it is only a case of
knowledge and not the intention to cause murder and bodily injury, then the same would be a case of
section 304 part ii. The aforesaid distinction between an act amounting to murder and not amounting
to murder has been brought out in the numerous decisions of this court.

In the case of State of A. P v. Rayavarapu Punnayya, (1976) 4SCC 382, this court observed as
follows at page 386:

In the scheme of the penal code, “ culpable homicides” is genus and “ murder” its specie all – murder
is culpable homicide but not vice – versa. Speaking generally, culpable homicide, sans “special
characteristics of murder” is culpable homicide not amounting to murder. For the purpose of fixing
punishment, proportionate to the gravity of this generic offence, the code practically recognises three
degrees of culpable homicide the first is “ what may be called, culpable homicide of the first degree.
This is the greatest form of culpable homicide, which is defined in section 300 as murder. The second
may be termed as culpable of the second degree. This is punishable under the first part of section 304.

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Placing strong reliance on the aforesaid decision, this court in the case of Abdul Waheed Khan v.
State of A. P, (2002) 7SCC 175, observed as follows;

Clause (b) of section 299 corresponds with clauses (2) and (3) of section 300. Thwe distinguishing
feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender
regarding the the particular victim being in such a peculiar condition or state of health that the internal
harm caused to him is likey to be fatal, notwithstanding the fact that such harm would not in ordinary
way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy
that the intention to cause death is not an essential requirement of clause (2), only the intention of
causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury
causing the death off the particular victim, is sufficient to bring the killing within the ambit of this
clause. This aspect of clause(2) is borne ou by Illustration (b) appended to Section 300.

Clause (b) of section 299 does not postulate any such knowledge on the part of the offender. Instances
of cases falling under clause (2) of section 300 can be where the assailant causes death by a fist- blow
intentionally given knwing that the victim is suffering from an enlarged liver, or enlarged spleen or
diseased heart and such blow is likely to cause death of that particular person as a result of the rupture
of the liver, or spleen or the failure of the heart, as the case may be. In clause (3) of Section 300,
instead of the words “likely to cause death” occurring in the corresponding clause (b) of section 299,
the words “ sufficient in the ordinary course of nature” hve been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of
nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of
justice. The difference between clause (b) of section 299 and clause (3) of section 300 is one of degree
of probability of death which determines whether a culpable homicide is of gravest, medium or the
lowest degree. The word “ likely” in clause (b) of section 299 conveys the sense of probable as
distinguished from a mere possibility. The words “bodily injury... sufficient in the ordinary course of
nature to cause death, mean that death will be the most probable result of the injury, having regard to
the ordinary course of nature.

For cases to fall within clause (3) , it is not necessary that the offender intended to cause death, so
long as the death ensues from intentional bodily injury or injuries sufficient to cause death in the
ordinary course of nature, Rajawat Singh v. State of Kerela is an apt illustration of this point.

In virsa Singh v. State of Punjab Vivian Bose, j. Speaking for the court, explained the meaning and
scope of clause (3), it was observed that the prosecution must prove the following facts before it can
bring a case under Section 300 “thirdly”. First, it must establish quite objectively, that a bodily injury
is preent, secondly, the nature of the injury must be proved. Thase sre purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that

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it was not accidental or unintentional or that some other kind of injury was intended. Once these three
elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that
the injury of the type just described made up of the three elements set out above was sufficient to
cause death in the ordinary course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the offender.

Section 300 (Murder)

1. Except in the case hereinafter excepted , culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death or,
2. 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 the harm is caused, or,
3. If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the course of nature to cause death, or,
4. If the person committing the act knows that it must, in all probability, cause death or such
bodily injury as is likely to cause death.

Exception 1 :- When culpable homicide is not murder:

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

The above exception is subject to the following provisions:

1. That the provocation is not sought or voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
2. That the provocation is not given by anything done in obedience to the law, or by a public
servant.
3. That the provocation is not given by anything done in the lawful exercise of the right to
private defence.
4. Whether the provocation was grave and sudden enough to prevent the offence from
amounting to murder is question of fact.

Exception2:- Culpable homicide is not murder if the offender, in the exercise in good faith of the right
to private defence of person or property, exceeds the power given to him by law and causes the death
of the person against whom he is exercising such rigt to private defence without premeditation, and
without any intention of doing more harm than is necessary for the purpose of such defence

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Explanation 3:-Culpable homicide is not murder if the offender, being a public servant or aiding a
public servant acting for the advancement of public justice, exceeds the powers given to him by law,
and causes death by doing an act while he is, in good faith, believes to be lawful and necessary for the
due discharge of his duty as such public servant and without ill will towards the person whose death is
caused.

Exception 4:-Culpable homicide is not murder if it is committed without premeditation in a sudden

fight in the heat of assion upon a sudden quarrel and without the offender haven taken undue
advantage or acted in a cruel or unusual manner.

Explnation:- it is immaterial in such cases which party offers the provocation or commits the first
assault.

Exception 5:-Culpable homicide is not murder when the person whose death is caused , being above
the age of 18 years, suffers death or takes the risk of death with his own consent.

In the view of above made discussion it is clear that the appellant can not be held liable for murder as
he acted unintentionally though knowing that the sword can inflict serious injury and can cause death.
Since he had the knowledge of consequences but at the same time he acted without the intention to
kill, thus reduces the offence from murder to culpable homicide because only knowledge of
consequences does not make one liable for murder but intention must be coupled with, while
committing the offence.

Does appellant acted under grave and sudden provocation.

This is a case where the occurance had taken place when the appellant and deceased were fighting
over the issue of money. However the deceased humiliated the appellant my using the statement that “
appellant was thoroughly dishonest and did not disclose all his money to his wife Neeti”, this
statement infuriated the appellant. In such a situation the appellant took the sword and began to chase
his wife, who ran away but unintentionally and accidentally the sword hit the stranger and died due to
ruptured spleen. While his wife Neeti was running to protect herself from the anger appellant who
was holding sword in his hand , he throw the sword at Neeti, at that very moment she got slipped from
stairs and sword hit the stranger though Neeti also received injuries for which appellant has been
punished for 2 years under Section 325 of IPC.

So in our view, the exception firstly to Section 300, IPC would apply in the instant case, since this act
has been committed by the appellant , while he was deprived of the power of self-control by grave and
sudden provocation.

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In the decision of Murthuswamy v. State of Inspector of Police (1994) 1 Mad LW (Cri) 44 the
Division Bench of this court , relying upon the various decisions of the supreme Court including the
decision of K.M Nanavati v. State of Maharashtra, has laid down the following principles:-

1) The test of grave and sudden provocation is whether a reasonable man, belonging to the same
class of society as the accused, placed in the situation in which the accused was placed would
be provoked so as to lose his self – control.
2) In India , words and gestures may also, under certain circumstances, cause grave and sudeen
provocation to an accused so as to bring his act with the first Exception of Section 300, IPC.
3) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for committing the offence.
4) The fatal blow should be clearly traced to the influence of passion arising from that
provocation and not after the passion had cooled down by the lapse of time, or otherwise
giving room and scope for premeditation and calculation.
5) In the light of these principles, if we assess all the things , it is clear that the act has been
committed by the appellant by suddenly taking the sword and while chasing his wife throw
the sword at her but that accidently hit the stranger , since the words uttered by the wife of
appellant would definitely cause grave and sudden provocation because we have to see the
mental background, of the appellant created create by the previous act of the wife of appellant
as she was continuously indulging in fight with his husband ,the appellant.

Whether doctrine of transfer of malice applies to the act of appellant?

From the act of appellant it is clear that there was no intention to cause death or he was unaware of the
fact that such an act is likely to cause the death of the person. Now here comes into the picture the
concept of transferred malice. It relates or applies where the Mens Rea of one offence can be
transferred to another.

Though ‘ Doctrine of Transferred Malice’ is expressly not defined in the Indian Penal Code. Rather it
is inferred from Section 301 of the Indian Penal Code.

Section 301 states that if a person does any act which he knows or intends that is likely to cause death,
commits culpable homicide and by causing the death of any person, whose death who neither intends
to nor knows by himself that by his act will cause the death of that person.

The culpable homicide here is of that sort where he had a knowledge that such an act is likely to
cause death though intention was absent. He also had the knowledge that such an act is likely to cause
death but killed another person.

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Essentials

 Causes death,
 By doing an act with an intention or knowledge of causing the death of a person or,
 Causing such bodily injury as is likely to cause death,
 Causes the death of another person instead of the intended person

The courts have laid down in different cases that if a person committing culpable homicide had an
intention to kill a person but killed another person. It may also be the case where he did not even
have an intention to kill or where he did not have the knowledge that his act would cause death.

In R v. Mitchell 1983, the appellant tried to jump the queue at a post office. An elderly man
objected to this behaviour. The appellant in retaliation, not only pushed the elderly man but hit hm
as well.

The elderly man falls on the people who were standing behind him in the queue. There was one old
lady in the queue who also fell down and broke her leg. Later she died because of that broken leg. It
was held that appellant was guilty of manslaughter. In this case, even though the appellant did not
had any intention to hit the old lady, but due to his intention to hit the man, he was prosecuted by
applying the principle of transferred malice.

R v Latimer (1886) 17 QBD 359, In this case, the defendant was in an argument with another in a
pub. The arguments between the two increased rapidly. The defendant took off his belt with an
intention to hit the man but he missed. The person he was trying to hit only got a bit injured. The
smash with the belt got diverted in another way and it hit an innocent woman who was standing by
the side of the man. She got hit in her face and was severely injured.

It was held by the court that the defendant will be liable for the injuries inflicted upon the woman
despite the fact that he did not intend to cause injury to her.

Here, the principle of transfer of malice was applied. The Mens Rea he had (the intention to hit the
man) towards the man was transferred on the woman.

It is clear that under the influence of provocation that appellant acted in a way that killed not the
intended one but other person , so case is culplable homicide and not murder.

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PRAYER

Whereby in the lights of question presented, arguments advanced and authorities cited, the counsel
from the side of appellant, humbly prays before the hon’ble court:

To declare that:-

1) The appeal should be allowed and rather than sec. 300 murder appellant should be charged
with culpable homicide under sec 299.
2) The appellant should not be punished under sec 325 as he will get enough punishment
under sec. 299
3) The court should ask the government to come up with guidelines to deal with unique cases
like this one , so that justice can be served keeping in mind both victim and the convicted.

Or any other appropriate remedy which may deem fit in the light of justice, equity, and
fairness and the counsel from the appellant shall forever be duty bound to pray.

-Counsel from the side of appellant

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