VIRINDA

ROLL NO. 1504

BEFORE THE HON’BLE COURT OF DISTRICT & SESSIONS,

CHANDIGARH

CASE No. ____ Of 2019

In the matter of

U.T., CHANDIGARH....………………………..PROSECUTION

V.

MANOJ…………………………………………..DEFENDANT

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 MEMORANDUM ON BEHALF OF THE DEFENDANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS iii

INDEX OF AUTHORITIES iv

STATEMENT OF JURISDICTION v

SUMMARY OF FACTS vi

ISSUES RAISED vii

SUMMARY OF ARGUMENTS viii

ARGUMENTS ADVANCED 1-6

PRAYER ix

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 LIST OF ABBREVIATIONS

& And
¶ Page
AIR All India Reporter
CP Civil Procedure
Anr. Another
Bom. Bombay
Ed Editor
Edn. Edition
Hon’ble Honourable
AL Ambuja law
S. Section
S.C.C. Supreme Court Case
v. Versus
Vol. Volume

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 INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

 CRIMINAL PROCEDURE CODE 1973.

 THE INDIAN PENAL CODE, 1860.

BOOKS AND DIGESTS

 KD GAUR, Criminal Law: Cases and Materials, (6th Ed. 2009)

th
 KD GAUR, The Indian Penal Code, (15 Ed., Law Publishers India Pvt. Ltd., 2016)
nd
 RATANLAL AND DHIRAJLAL, The Indian Penal Code, (32 Ed., Lexis Nexis
Butterworths, 2011)

TABLE OF CASES

1. Amarjeet Singh AIR 1970 SC Punjab 279;

2. Chand Singh v State 1971 Cri LJ 1 1501;
3. Ciaik Ward AIR 1974 SC 387;
4. Curubasavaiah 1979 Cri LJ 603.
5. Hansa Singh 1977 Cri LJ 1448 ; (1978) PLR 408;
6. In re Vadaychi 1972 Cri LJ 1448;

7. KM Nanavati v. State of Maharashtra AIR 1962 SC 605

8. Lltmaram (1967) Cri LJ 1697;
9. Madhaven v. State of Kerla 1966 Ker LT 112;
10. Mahmood v. State of Allahabad (1968) 3 SCR 363
11. Nara singh Challan v. State of Orrisa Criminal Appeal No. 621-SB of 1996
12. Poovammal v. State Cri. Appeal (MD) No. 30 of 2011 SC
13. R v. Duffy (1949) 1 All ER 932
14. Rajwant Singh v. State of Kerala AIR 1966 SC 1874.
15. Venkatesan v. State of Tamil Nadu AIR 1997 SC 54

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 STATEMENT OF JURISDICTION

The Counsel on behalf of the Prosecution has approached the Hon’ble Court of Sessions,
Chandigarh under Section 177 and Section 209 of the Code of Criminal Procedure,
1973 which reads as hereunder:

Section 177 – “Ordinary place of inquiry and trial. Every offence shall ordinarily be
inquired into and tried by a Court within whose local jurisdiction it was committed.”

Section 209 – “Commitment of case to Court of Session when offence is triable exclusively
by it.”

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 SUMMARY OF FACTS

1. Manoj (hereinafter referred to as ‘accused’) and Rina were college friends and their
friendship turned into marriage one year after they left the college. The couple moved
to Chandigarh post their marriage.
2. However, during their friendship and continuance of marriage, presence of Arun,
(hereinafter referred to as ‘deceased’) who was a friend of Manoj and Rina always
irked him, for the simple fact that he also wanted to marry Rina, on account of which
they even fought in the College during the student council elections at JNU, where
Arun inflicted serious injuries on Manoj by way of attacking him with a lathi.
3. Even after marriage, Rina often talked about Arun. She also wanted that Manoj
should inquire about the whereabouts of Arun, however Manoj was always reluctant
to do so.
4. Manoj even confronted Rina on being friends with Arun on Facebook, and did not
approve of the fact that she was again getting in contact with Arun. Rina insisted that
Arun was just a friend.
5. Arun informed Rina that he would be visiting Chandigarh, therefore Rani decided to
invite him for Manoj’s birthday party. Upon coming to the Birthday party, Arun’s
behavior was not cordial with Manoj, he was mostly talking to Rina. 
6. Arun passed certain derogatory remarks at Manoj in front of all his guests. He openly
said that he had beaten Manoj during the college elections. He also said that Rina
liked Arun more, however unfortunately she had to marry Manoj.
7. Infuriated by Arun’s presence and his subsequent conduct, Manoj asked Rina to keep
distance from Arun, otherwise he knew the means to get rid of him.
8. On the same day, Manoj asked Arun to leave the house and further told Rina that she
has to choose either one of them.
9. As time passed by, relations between Manoj and Rina got back to normal.
10. Few days after the abovementioned incident took place, Manoj had gone to Bangalore
for a five-day business trip. However, his work got over in three days, therefore he
decided to give Rina a surprise by coming home early, i.e., before the stipulated time.
11. When he came back home, to his utter shock he saw Rina and Arun hugging each
other whilst sitting in the living room of his house in Chandigarh.

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12. Without uttering any word, he went outside his house and picked up a lathi lying in
the Courtyard and gave Arun two blows on his head. He fell down and died on the
spot, owing to the force with which the blows were stuck.
13. An FIR under section 302 of the Indian Penal Code, 1860 was registered against
Manoj for the Murder of Arun.

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 ISSUES RAISED

1. WHETHER THE DEFENDANT’S ACTIONS CAN BE ATTRIBUTED TO GRAVE

AND SUDDEN PROVOCATION CAUSED BY THE DECEASED?

2. WHETHER THE DEFENDANT MANOJ IS GUILTY UNDER SECTION 304

AND NOT 302 OF IPC?

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 SUMMARY OF ARGUMENTS

1. WHETHER THE DEFENDANT’S ACTIONS CAN BE ATTRIBUTED TO

GRAVE AND SUDDEN PROVOCATION CAUSED BY THE DECEASED?
The death happening due to acts done under the influence of grave and sudden
provocation is an exception to the section 300 of the IPC. When the accused is
suddenly provoked by any person and that provocation makes the accused to lose his
control which ultimately leads to death of the person who provoked or any other
person by mistake or accident then the accused will not be liable for murder but only
for culpable homicide.
There should be no time gap between the provocation and the retaliatory action
caused due to that provocation. The accused cannot take the plea of sudden or grave
provocation if the death has been caused due to well managed plan and the main aim
behind provocation was to commit murder.

2. WHETHER DEFENDANT IS GUILTY TO BE PUNISHED UNDER SECTION

304 AND NOT 302 OF THE IPC?
The difference between murder and culpable homicide not amounting to murder is
based upon very subtle distinction of intention and knowledge involved in these
crimes. Intention is a state of mind and it can be proved only by its external
manifestations. In several cases intention to kill was held to be evident from the facts
Section 299 says,
1. With the Intention to causing death.
2. With the intention of causing such bodily injury as is likely to cause death.
With the knowledge that the offence likely by such act to cause death.

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 ARGUMENTS ADVANCED

CONTENTION 1- THAT THE DEFENDANT’S ACTION CAN BE

ATTRIBUTED TO GRAVE AND SUDDEN PROVOCATION CAUSED
BY THE DECEASED.

1.1 Concept of Grave and Sudden Provocation in Indian Criminal Jurisprudence

“Provocation is some act or series of acts done by the dead man to the accused which
would cause in any reasonable person and actually causes in the accused a sudden and
temporary loss of self-control rendering the accused so subject to passion as to make
him or her for the moment not master of his mind”.1 The concept of provocation
which is integral part of the offence of manslaughter in English criminal law has been
incorporated to Indian criminal law. In this regard both the legal systems are
common.2

In Osborne’s Concise Law Dictionary,3 ‘Provocation’ is defined to mean words or

conducts which are sufficient to prevent the exercise of reason and which temporarily
deprived a reasonable person himself control.

The authors of the code have summarized the object and purpose of the exception in
the code and justification for a lenient punishment in case of murder committed on
grave and sudden provocation in the following words:

“We agree with the great mass of mankind and with the majority of jurists
ancient and modern in thinking that homicide committed in the sudden heat of
passion on great provocation ought to be punished but that in general it ought
not be punished to so severely as murder. It ought to be punished in order to
teach men to entertain a particular respect for human life it ought to be
punished order to give men motive for accustoming themselves to govern their
passions and in some few cases to act with utmost rigour. In general, however
we would not visit homicide committed in violent passion which had been

1
R v. Duffy, (1949) 1 All ER 932
2
Poovammal v. State, Criminal Appeal (MD) No. 30 of 2011 SC
3
Mick Woodley (ed.), Osborne’s Concise Law Dictionary, Sweet and Maxwell (12th Edition, 2013).

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 suddenly provoke deal with the highest penalties of the law. We think that to
treat a person guilty of such homicide as should treat a murderer would be a
highly inexpedient course which would shock the universal feeling of mankind
and would engage the public sympathy on the side of the delinquent against
the law.”4

In India Section 299 of Indian penal code defines the offence of culpable homicide.
Section 300 explains when culpable homicide amounts to murder. In the penal code,
culpable homicide is used as a generic term and exhaustively divided into two parts
namely culpable homicide amounting to murder 300 Clauses 1 to 4 and culpable
homicide not amounting to murder under Section 299 and exceptions to Section 300.
What distinguishes these two offences is mental attitudes in the presence of any of
which consists of four mental attitudes in the presence of any of which the lesser
offence culpable homicide becomes greater murder. Mental attitudes are stated in
Section 3005 as distinguishing murder from culpable homicide. Unless the offence can
be said to involve at least one such mental attitude it can’t be murder.6

In K.M.Nanavati v. State of Maharashtra,7 his Lordships made the following

observation:

“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 so provoked as to lose his self-
control.”

It is clear from the facts of the present case that Manoj consistently had problems with
the proximity shared between his wife Rina and his former friend Arun. He has, on
multiple occasions asked his wife not to entertain Arun, and she has repeatedly
disobeyed him. Upon returning from his business trip from Bangalore, he found his
wife in a compromising position with the deceased person. It led to surmounting of
extreme rage within Manoj, prompting him to take Arun’s life, as he was overcome
by grave and sudden provocation.

1.2 Test of Provocation

4
Peter Smith (1972) Crim. LR 524.
5
Ratan Lal & Dhiraj Lal, The Law of Crimes, p 739 (1971).
6
Rajwant Singh v. State of Kerala, AIR 1966 SC 1874.
7
KM Nanavati v. State of Maharashtra, AIR 1962 SC 605

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 In India, words and gestures may also under certain circumstances cause grave and
sudden provocation to an accused so as to bring his act within the first exception to
Section 300 of Indian Penal Code. 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. The fatal blow
should be clearly treated to be influence of passion arising from that provocation and
not after the passion had cooled down by lapse of time or otherwise giving room and
scope for premeditation and calculation. The Supreme Court stand has been reiterated
in a number of cases decided by the various High Courts.8

It was held in Venkatesan v. State of Tamil Nadu.9 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 so
provoked as to loss of his self – control.

In the pertinent case, Manoj had no time to plan his attack. He witnessed his wife
Rina and deceased Arun in a compromising position, in Manoj’s own house. He
simply stepped out of the house, grabbed the first weapon he laid his eyes on, a stick,
and attacked the deceased. This indicates that there was no premeditation and
intention to kill in the mind of Manoj, and fulfils the requirements of the defence of
grave and sudden provocation.

1.3 Death caused due to grave and sudden provocation

The death happening due to acts done under the influence of grave and sudden
provocation is an exception to the section 300 of the IPC. When the accused is
suddenly provoked by any person and that provocation makes the accused to lose his
control which ultimately leads to death of the person who provoked or any other
person by mistake or accident then the accused will not be liable for murder but only
for culpable homicide.

There should be no time gap between the provocation and the retaliatory action
caused due to that provocation. The accused cannot take the plea of sudden or grave

8
Madhaven v. State of Kerla, 1966 Ker LT 112; Amarjeet Singh, AIR 1970 SC Punjab 279; Chand Singh v
State, 1971 Cri LJ 1 1501; lltmaram, (1967) Cri LJ 1697; In re Vadaychi, 1972 Cri LJ 1448; Ciaik Ward, AIR
1974 SC 387; Hansa Singh, 1977 Cri LJ 1448 ; (1978) PLR 408; Curubasavaiah, 1979 Cri LJ 603.
9
AIR 1997 SC 54

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 provocation if the death has been caused due to well managed plan and the main aim
behind provocation was to commit murder.

It is humbly submitted before this Hon’ble Court that the accused Manoj committed the act
under the influence of grave and sudden provocation, and the case qualifies as a defence to
murder under S. 300 of the Indian Penal Code, 1860.10

10
Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, or—
1. 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—
2. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in-
flicted is sufficient in the ordinary course of nature to cause death, or—
3. 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.
(i) That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or
doing harm to any person.
(ii) 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.
(iii) That the provocation is not given by anything done in the lawful exercise of the right of private
defence. 

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CONTENTION 2- THAT THE DEFENDANT MANOJ IS GUILTY
UNDER SECTION 304 AND NOT 302 THE IPC.

2.1 Distinction between Culpable Homicide not amounting to Murder and Murder:
The difference between murder and culpable homicide not amounting to murder is based
upon very subtle distinction of intention and knowledge involved in these crimes.
Intention is a state of mind and it can be proved only by its external manifestations. In
several cases intention to kill was held to be evident from the facts Section 299 says,
3. With the Intention to causing death.
4. With the intention of causing such bodily injury as is likely to cause death.
5. With the knowledge that the offence likely by such act to cause death.
Section 299 defined Culpable Homicide in simple way. Culpable homicide are of two
kinds:
1. Culpable homicide amounting to murder.
2. Culpable homicide not amounting to murder. All murders are culpable
homicides but not vice-versa.11

Section 300 – Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing death, or
Culpable Homicide is not amounting to murder: Exception 1 to 5 of s300 of IPC defines
conditions when culpable Homicide is not amounting to murder:

1. Provocation.
2. Right of private defense.
3. Public servant exceeding his power.
4. Sudden fight.
5. Consent.

2.2 The Defendant is guilty of committing culpable homicide not amounting to murder
under S. 299 of the Indian Penal code

11
Nara singh Challan v. State of Orrisa, Criminal Appeal No. 621-SB of 1996

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 The present case falls under the provisions of S. 299 of the Indian Penal Code, 1860. 12
Murder is a grave and serious offence, and it carries a greater degree and quantum of
punishment than the offence of culpable homicide. It is thus important for the act to fulfil
the exception of S.300 of the IPC.13 It is clear from a bare perusal of the facts of the case
that the act committed by Manoj in striking Arun, qualified the requirement of S. 300 due
to being fuelled by grave and sudden provocation, envisaged under S.300.
It is humbly submitted that the accused may be tried and punished under S. 304 14 of the
Indian Penal Code, 1860, and present case may be dismissed.

12
Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such
act to cause death, commits the offence of culpable homicide.
13
Mahmood v. State of Allahabad, (1968) 3 SCR 363
14
Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not
amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with
imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act
is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death.

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 PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited,
the Counsel for the Prosecution humbly prays before the Hon’ble Court to kindly adjudge
and declare that:

1. THE ACCUSED MAY BE TRIED FOR THE OFFENCE OF CULPABLE HOMICIDE NOT

AMOUNTING TO MURDER UNDER SECTION 304 OF THE INDIAN PENAL CODE, 1860.
2. THE CASE AGAINST THE ACCUSED UNDER SECTION 302 OF THE INDIAN PENAL

CODE, 1860 MAY BE DISMISSED.

And for this act of kindness, the Counsel on behalf of the Defendant, as duty bound shall
forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_______________________________

SD/-

COUNSEL FOR THE DEFENDANT

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