1692R

______________________________________________________________________________

IN THE

HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

______________________________________________________________________________

Criminal Appeal No. ___/2019

IN THE MATTERS OF

THE STATE …………………………………………………………………....…APPELLANT

(REPRESENTED BY THE INSPECTOR OF POLICE)

v.

NAWAZ…………………………………………………….……………………RESPONDENT

(REPRESENTED BY HIMSELF)

[APPEAL FILED UNDER ARTICLE 134 OF THE CONSTITUTION OF INDIA READ WITH

ORDER XX, RULE 1 OF THE SUPREME COURT RULES, 2013]

______________________________________________________________________________

-MEMORIAL ON BEHALF OF THE RESPONDENT-

 TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................ii

INDEX OF AUTHORITIES..........................................................................................................iii

STATEMENT OF FACTS.............................................................................................................iv

STATEMENT OF JURISDICTION...............................................................................................v

ISSUES FOR CONSIDERATION.................................................................................................vi

SUMMARY OF ARGUMENTS..................................................................................................vii

ARGUMENTS ADVANCED.........................................................................................................1

I. The Acts Of The Accused Respondents Were A Result Of Grave And Sudden

Provocation By The Deceased.....................................................................................................1

1. Provocation was given by the deceased which was grave and sudden.........................2

2. The accused were deprived of the power of self-control and killed the deceased in the

continuance of such deprivation of power of self-control.......................................................4

PRAYER FOR RELIEF..................................................................................................................7

ii
 INDEX OF AUTHORITIES

Cases

Empress v. Khogayi; 1879 SCC OnLine Mad 1..............................................................................4

K.M. Nanavati v. State of Maharashtra; AIR 1962 SC 605, page 56..............................................1

Mancini v. Director for Public Prosecutor; [1941] 3 All E.R. 272..................................................2

R v. Duffy; [1949] 1 All ER 932; also, per Viscount Simon in Mancini v. D.P.P. [1942] A.C. 1..5

Statutes

Exception 1, Section 300, Indian Penal Code, 1860........................................................................1

Explanation to Exception 1, Section 300, The Indian Penal Code, 1860........................................2

Other Authorities

M.D. Vernon, Human Motivation (Cambridge 1969), page 62 [cited in A. J. Ashworth, The

Doctrine of Provocation, The Cambridge Law Journal, 35(2), 292-320, (1976)].......................3

Books

Ratanlal & Dhirajlal, The Indian Penal Code (34th Edition), page 560...........................................2

Journals

A. J. Ashworth, The Doctrine of Provocation, The Cambridge Law Journal, 35(2), 292-320,

(1976)...........................................................................................................................................4

iii
 STATEMENT OF FACTS

1. Accused No. 1 - Smt. Ragila had an illicit relationship with Accused No. 2 - Shri Nawaz.

The accused No. 1 is the wife of the deceased.

2. The deceased used to suspect the fidelity of Accused No. 1 as well as his daughter's

integrity. He was of the opinion that Accused No. 2 Nawaz not only had an illicit

relationship with Accused No. 1 but also with the elder daughter of the deceased.

3. On the date of the incident at about 9.00 a.m., the deceased quarreled with Accused No.1

and called her a 'prostitute'. He also told her that Accused No. 1 has converted the

daughter into a prostitute as well. At that point of time, Accused No. 2 came from the

first floor and asked the deceased not to quarrel with Accused No. 1 and her daughters.

Since the deceased did not stop, Accused No. 2 slapped the face of the deceased.

Immediately, thereafter, both the accused throttled the deceased with the help of a towel

and burnt the dead body to try to conceal the offence. Subsequently, they transported the

dead body in a Maruti Car owned by PW 15 and abandoned the body elsewhere.

4. The trial court convicted both the accused for murder under Section 302. The High Court,

on appeal, altered the sentence and convicted the accused for culpable homicide under

Section 304 Part I. This modification has been challenged by the State in appeal.

5. Hence the present matter before the Court.

iv
v
 STATEMENT OF JURISDICTION

The respondents most humbly submit to the Honourable Supreme Court of India invoking its

jurisdiction to admit and adjudicate the present matter under Article 134 of the Constitution of

India read with Order XX, Rule 1 of the Supreme Court Rules, 2013 and decide accordingly.

vi
 ISSUES FOR CONSIDERATION

I. WHETHER THE ACTS OF THE ACCUSED RESPONDENTS WERE A RESULT

OF GRAVE AND SUDDEN PROVOCATION BY THE DECEASED?

vii
 SUMMARY OF ARGUMENTS

I. THE ACTS OF THE ACCUSED RESPONDENTS WERE A RESULT OF GRAVE

AND SUDDEN PROVOCATION BY THE DECEASED.

The acts of the accused in slapping and throttling the deceased are protected by Exception 1 to

Section 300 of the Inian Penal Code, 1860. This is because the deceased provoked both the

accused by uttering the word ‘prostitute’ for his wife and also accused her of converting their

daughter into a prostitute. This provocation was both grave and sudden because of which the

accused were deprived of self control and slapped and throttled the deceased in continuance of

the deprivation. Hence the offence is not murder but reduced to culpable homicide.

viii
 ARGUMENTS ADVANCED

1. THE ACTS OF THE ACCUSED RESPONDENTS WERE A RESULT OF GRAVE AND

SUDDEN PROVOCATION BY THE DECEASED

The acts of the accused in slapping and throttling the deceased do not amount to murder as they

are covered within the ambit of exception 1 to Section 300 of the Indian Penal Code, 1860.

Having regard to this, culpable homicide is not murder if the offender, whilst deprived of the

power of self-control by grave and sudden provocation, causes the death of the person who gave

the provocation.1

The Supreme Court in K.M. Nanavati v. State of Maharashtra has identified that culpable

homicide is not murder if the following conditions are complied with:

i. The deceased must have given provocation to the accused;

ii. The provocation must be grave;

iii. The provocation must be sudden;

iv. The offender, by reason of the said provocation, shall have been deprived of his

power of self control;

v. He should have killed the deceased during the continuance of deprivation of the

power of self control ;

vi. He must have caused the death of the person who gave the provocation or that of any

other person by mistake or accident.2

1
Exception 1, Section 300, Indian Penal Code, 1860.
2
K.M. Nanavati v. State of Maharashtra; AIR 1962 SC 605, page 56.

1
 2. Provocation was given by the deceased which was grave and sudden.

II.1. The act must be done under the immediate impulse of provocation. The expression

‘grave indicates that provocation be of such a nature to give cause for alarm to the accused

and ‘sudden’ means an action which must be quick and unexpected so far as to provoke the

accused.3 The question whether provocation is grave and sudden is a question of fact.4

II.2. The test of “grave and sudden” provocation used by the Indian Courts 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 have reacted in the manner in which the

accused did.5 This is important to ensure that an unusually excitable or pugnacious

individual is not entitled to rely on provocation which would not have led an ordinary person

to act as he did.6

II.3. Applying these principles in the present factual matrix, the deceased called his wife a

prostitute, and further accused her of converting their daughter into a prostitute as well. It is

clear that these allegations constitute grave and sudden provocation for the wife (accused 1)

as in our society, no lady would like to hear such words from her husband. Most importantly,

she would, under no circumstances, be ready to here such allegations against her daughter.

Any lady placed in a similar position would have been provoked by such accusations. Thus

the reasonable man’s test is satisfied for the first accused.

II.4. With regard to Nawaz (accused 2) who was the paramour of accused 1, it can reasonably

be inferred that he had a certain degree of love and attachment with accused 1 as even though

the relationship was unlawful and extramarital, still it can be considered a relationship of

love and attachment where they would not like anybody to speak ill of either one of them.
3
Ratanlal & Dhirajlal, The Indian Penal Code (34th Edition), page 560.
4
Explanation to Exception 1, Section 300, The Indian Penal Code, 1860.
5
Supra, note 2, at page 57.
6
Mancini v. Director for Public Prosecutor; [1941] 3 All E.R. 272.

2
 Hence Nawaz can be considered to be gravely provoked upon hearing the curses for his lover

levelled by the deceased. Also, this provocation was further fuelled by the continuation of the

quarrel by the deceased even after being asked to stop. Furthermore, as the deceased

suspected that Nawaz had an illicit relationship even with the daughter of the deceased, and

in the ensuing quarrel, told to his wife about converting the daughter into a prostitute as well,

it can be curled out that this was a direct comment on the character of Nawaz. Such

baseless and unproved allegations belittle the character of Nawaz and can be considered by

any reasonable man as a gross insult on one’s person and character. Thus, it qualifies as a

grave and sudden provocation for Nawaz.

II.5. The provocation in this case can also be understood through a psychological analogy. A

leading psychologist writes: “the provoker is perceived as initiating a psychological threat

to the self of the aggressor and to his feelings of pride and self-esteem. Interference by

another is felt as humiliating, and there is resort to aggressive action to remove inferiority

and restore self-esteem.”7 This analysis strikes a familiar chord: the oral insult by the

deceased can be translated into the common terminology of a challenge to the self-respect

and self-image of the accused, which evokes ego-defensive actions in the form of hitting and

killing the deceased.

II.6. The Supreme Court in K.M. Nanavati has also observed that in India, the authors of the

Indian Penal Code, 1860 believed that insults by mere words or gestures have tendency to

move a person to violent passion.8 It has also been held by the Madras High Court in

Empress v. Khogayi that abusive language used would be a provocation sufficient to deprive

7
M.D. Vernon, Human Motivation (Cambridge 1969), page 62 [cited in A. J. Ashworth, The Doctrine of
Provocation, The Cambridge Law Journal, 35(2), 292-320, (1976)].
8
Supra, note 2, at page 58.

3
 the accused of self-control.9 This further strengthens the argument that the grossly insulting

words such as ‘prostitute’ used by the deceased qualify as a provocation sufficient to deprive

both the accused of self control.

3. The accused were deprived of the power of self-control and killed the deceased in the

continuance of such deprivation of power of self-control

2.1 The deprivation of power of self-control is a subjective phenomenon and can be inferred

from the surrounding circumstances in a given case.10 This loss of self-control is a sudden

and temporary loss and not a permanent or total loss.11 An offence resulting from grave and

sudden provocation would normally mean that a person placed in such circumstances could

lose self-control, but only temporarily, and that too, in proximity to the time of provocation. 12

“Loss of self-control” indicates an absence of the normal restraints, but not necessarily a

transition to exclusively emotional behaviour.13 Provocation may succeed where there is

some loss of self-control: there is no need for the accused to have gone berserk, and sudden

and impulsive conduct is often taken to fulfil the subjective condition without detailed

inquiry into whether self-control was lost.14

2.2 In the present case, as established earlier, there was grave and sudden provocation, as a result

of which Nawaz slapped the face of the deceased and immediately thereafter both the

accused throttled the deceased with the help of a towel. This sudden and impulsive conduct

of the accused fulfils the subjective condition of loss of self control. Also, this loss of self-

control was in proximity to the time of provocation because as soon as the deceased hurled

9
Empress v. Khogayi; 1879 SCC OnLine Mad 1.
10
Supra, note 3, at page 562.
11
A. J. Ashworth, The Doctrine of Provocation, The Cambridge Law Journal, 35(2), 292-320, (1976).
12
Supra, note 3, at page 560.
13
Supra, note .
14
Supra, note .

4
 accusations at his wife, the accused lost their self-control and in a fit of rage slapped the

deceased and throttled him to death.

2.3 While determining grave and sudden provocation, it is important to consider whether a

sufficient interval has elapsed since the provocation to allow a reasonable man time to

cool.15 If there is sufficient time for cooling down, then the provocation no more remains

sudden in nature and the act of the accused would be a deliberate one.16 Loss of self control

and retaliation must follow within a fairly short time of the provocative event. 17 Presently, the

entire incident happened in the fraction of a minute. Nawaz reacted to the provocation

immediately by slapping the deceased. The time period between slapping and throttling the

deceased cannot be considered as sufficient time for a reasonable man to cool as it is

generally assumed that a sudden killing, following quickly upon serious provocation, fulfils

the condition for loss of self control.18

2.4 Also, it must be considered whether the mode of resentment bears some proper and

reasonable relationship to the sort of provocation that has been given. 19 Excessive or

disproportionate retaliation might bar the defence.20 This concept of proportionality remains

an important element in the doctrine of provocation. 21 In the present facts, slapping and

throttling the deceased using a towel are proportionate to the provocation. This argument is

further strengthened by the fact that neither of the accused used any kind of weapon or

concealed instrument, rather used a towel to succumb the deceased to death. Thus it can be

15
Supra, note 6.
16
Supra, note 3, at page 563.
17
R v. Duffy; [1949] 1 All ER 932; also, per Viscount Simon in Mancini v. D.P.P. [1942] A.C. 1.
18
Supra, note 11.
19
Supra, note 17.
20
Supra, note 11.
21
Supra, note 11.

5
 inferred that the accused killed the deceased in continuance of the deprivation of the power

of self control.

2.5 Also, all the subsequent acts of the accused in burning the dead body, transporting and

abandoning it, are not related with murder or grave and sudden provocation. They are all

separate acts directed at destroying the evidence and are punishable separately under Section

201 of the Indian Penal Code, 1860.

Therefore, all the conditions for the application of first exception are satisfied. Hence the offence

of the accused is reduced from murder to culpable homicide.

6
 PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited,

it is most humbly and respectfully prayed before the Hon’ble Supreme Court that it may be

pleased to:

 Uphold the order of the High Court in convicting the accused under Section 304 Part I of

IPC,

 Dismiss the appeal with costs

And pass any such order in favour of the Respondents which the Hon’ble Court may deem fit in

the ends of equity, justice and good conscience.

All of which is most humbly and respectfully submitted

23rd August, 2019 1692R

New Delhi Counsel for the Respondent