SHAIKH HUNAYNAH

WRITTEN SUBMISSION ON BEHALF OF APPELLANT

ROLL NO : 156
FF
THIRD SEMESTER, 2ND YEAR

MAHARAJA SAYAJIRAO UNIVERSITY, FACULTY OF LAW, BARODA,

MOOT COURT – 2022

IN THE HON’BLE HIGH COURT OF DELPHI , INDIANA

Cri. Appeal No.----------/2022

APPEAL UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE, 1973

In the matter of :

JOHN………………………………………………………………………………………..APPELLANT

Versus

THE STATE OF DELPHI AND OTHERS………………………………………..………RESPONDENT

UPON SUBMISSION TO THE HON’BLE HIGH COURT OF DELPHI

(WRITTEN SUBMISSIONS ON BEHALF OF APPELLANT)

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TABLE OF CONTENTS

SR. NO. PARTICULAR PAGE NO.

1 List Of Abbreviation 4-5

2 Index Of Authorities 6-10

3 Statement Of Jurisdiction 11

4 Statement Of Facts 12

5 Issues for Consideration 13

6 Summary Of Pleadings 14-15

7 Arguments Advance 16-36

16-19
Issue 1: WHETHER THE
PRESENT APPEAL IS
MAINTAINABLE BEFORE
DELPHI HIGH COURT OR
NOT?

19-25
Issue 2: WHETHER THE ACT
OF THE DECEASED
AMOUNTED TO GRAVE
AND SUDDEN
PROVOCATION?

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26-27
Issue 3: WHETHER IN
ARGUENDO, THE ACT OF
THE ACCUSED FALLS
UNDER AMBIT OF S.80 OF
IPC ALONG WITH THE
CIRCUMSTANTIAL
EVIDENCES IN THE
PRESENT CASE?

27-37

Issue 4: : WHETHER THE

LEARNED SESSION JUDGE
ERRED TO COMING TO
THE CONCLUSION OF THE
PRESENT APPELLANT’S
GUILT?

8 38
Prayer

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LIST OF ABBREVIATIONS

& And

AIR All India Report

Anr. Another

CrPC Code of Criminal Procedure

Hon’ble Honorable

IPC Indian Penal Code

No. Number

Ors. Others

r/w Read With

S./Sec. Section

SC Supreme Court

SCC Supreme Court Cases

u/s Under Section

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v. Versus

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INDEX OF AUTHORITIES

CASES

1. (1962) 1 MLJ. 27

2. 1991 Cri LJ 1631 28

3. Ayyanar vs The State Of Tamil Nadu 23
on 23 January, 2006

4. BabuLal V. State AIR 1960 All 223 23

5. Badri v. State of Rajasthan, (2000) 10 17

SCC 246.

6. BD Khunte v. Union of India & 22

Ors ( Criminal Appeal No.242 of
2012)

7. Budhi Singh v. State of H.P 2013 21

Cri.L.J.962
8. Chaitu & Others v/s State of Uttar 22,23
Pradesh, Criminal Appeal No. 1323 of
2012, Decided On, 25 April 2014
9. Devender Kumar v. State of Rajasthan 18
, 10th January,2011.

10. Hori Lal v. State of Uttar 26

Pradesh,(1983) Cr LR 473( UP)

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11. K.M.NANAVATI Vs. STATE of 21,22

MAHARASHTRA 1(1962)1 MLJ
(CrL.)531(SC)

12. Kartar Singh v. State of Punjab, (1994) 27

2 SCR 375; State of Rajasthan v.
Shera Ram, AIR 2012 SC 1; T. N.
Lakshmaiah v. State of Karnataka,
AIR 2001 SC 3828.

13. Kikar Singh Vs. State of Rajasthan 31

1993 SCR 3 696

14. KM Nanavati v. State of Maharashtra 22

AIR 1962 SC 605

15. Mahmood vs State [2007 (11) SCALE 20

519],

16. Muthu v. State of Tamil Nadu [(2007) 23

7 Supreme 547]

17. R v. AHLUWALIA [1992 (4) All ER 23

889]: [(1993)96 Cr. APP. R 133]

18. R v. Duffy,(1949) 1 All ER 932 34

19. Raja v. State of Madras 19

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W.P(MD)No.8862 of 2020 and

W.M.P.(MD).Nos.8122, 8123 and 8125
of 2020

20. Randhir Singh (1881) 3 All 587: 29,33

(1881) 1 Weir 288.

21. Rita Devi v. New India Assurance Co. 24,32

Ltd., 2000 ACJ 801 (SC)

22. Satvir Singh and Ors. v. State of 26

Punjab and Anr., 1998 Cri LJ 405

23. State of Karnataka v. Vedanayagam 33

[(1995) 1 SCC 326 : 1995 SCC (Cri)
231]

24. State of Maharashtra v. Mayer Hans 28

George, AIR 1965 SC 722.
25. Sukhdev Singh v. Delhi State ( Govt 25
of NCT of Delhi), AIR 2003 SC 3716

26. Suyambukkani v. State of Tamil Nadu 23

1989 L W (Crl.) 86

27. The State v. Siddhannath Gangaram 27

1956 Cri LJ 1327

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28. Tholan vs State Of Tamil Nadu on 13 25

January, 1984; AIR 1984 SC 759,
1984 CriLJ 478, (1984) 2 SCC 133
29. VASHRAM NARSHIBHAI 23
RAJPARA vs. STATE OF GUJARAT
[2009 (9) SCC 168]

30. Vide Pannayar v. State of T.N.(2009) 26

9 SCC 152.

STATUES
The Indian Penal Code, 1860

The Code of Criminal Procedure, 1974

Indian Evidence Act, 1872

BOOKS

The Code Of Criminal Procedure Ratanlal & Dhirajlal

The Indian Penal Code K.D. Gaur ; Ratanlal & Dhirajlal
Indian Evidence Act Ratanlal & Dhirajlal
A Digest Of Criminal Law 316,( 9th ed. 1950). J F Stephen

ONLINE SOURCES

1. SCC Online® | The Surest Way To Legal Research

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2. https://www.manupatra.com
3. https://www.casemine.com
4. https://indiankanoon.org
5. www.legalservicesindia.com

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STATEMENT OF JURISDICTION

The Appellant has filed an appeal to the Hon’ble High court of Delphi, Indiana, to review the
judgment passed by the session judge.

The Hon’ble High Court has the jurisdiction to hear the matter under section 372 1(2) of the
Criminal Procedure Code, 1973.

As per Criminal Procedure Code, 1973 u/s 262 of Chapter III, provided Power of Courts to tried
the criminal matters.

1
Any person convicted on a trial held by a Sessions 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 1 [has been passed against him or
against any other person convicted at the same trial; may appeal to the High Court.

Save as otherwise provided in Sub-Section (2), any person;

1. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the
first class or of the second class, or

2. sentenced under section 325, or

2 Section 26 Courts by which offences are triable – subject to the other provisions of this code-

(A) any offence under the IPC (45 of 1860) may be tried by-

(B) the High Court or

(C) the Court of Session or

(D) any other Court by which offence is shown in the First Schedule to the triable.

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STATEMENT OF FACTS

BACKGROUNG

John and his significant other Mary got into a fight about how the cash was being spent by the
family. John claimed that Mary had been extravagant beyond limits.

Mary claimed that John didn't make to the point of supporting his family appropriately.

INCIDENT

Mary alleged that Jhon didn’t show her all the money he earned and was utterly dishonest.

Hearing this Jhon got enraged and took a sword and began to chase Mary. Mary while running
fell down injuring her nose , at the same time John threw the sword , it missed Mary as she was
fallen down but it entered the abdomen of unkown person walking through the streets. The sword
ruptured the spleen of that person and he died instantaneously.

CHARGES FRAMED

John was prosecuted u/s 302 and 325 of IPC.

He was punished under the same for life imprisonment and for two years imprisonment
respectively.
The appellant John has appealed in the High Court of Delphi against the order of the learned
Session Judge against his conviction and sentence.

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ISSUES FOR CONSIDERATION

Issue 1: WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE DELPHI HIGH

COURT OR NOT?

Issue 2: WHETHER THE ACT OF THE DECEASED AMOUNTED TO GRAVE AND SUDDEN
PROVOCATION?

Issue 3: WHETHER IN ARGUENDO, THE ACT OF THE ACCUSED FALLS UNDER AMBIT
OF S.80 OF IPC ALONG WITH THE CIRCUMSTANTIAL EVIDENCES IN THE PRESENT
CASE?

Issue 4: : WHETHER THE LEARNED SESSION JUDGE ERRED TO COMING TO THE

CONCLUSION OF THE PRESENT APPELLANT’S GUILT?

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SUMMARY OF PLEADINGS

Issue 1: WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE DELPHI

HIGH COURT OR NOT?

The present appeal is filed u/s 347(2) of the Code of Criminal Procedure, 1973. Under this
section, an aggrieved person has a right of appeal against the conviction held by a session court
or any other court. Similarly in the instant matter, the accused was convicted by the session court
with imprisonment for life and the high court being the appellate court holds the power of
appellate jurisdiction to hear the appeal from conviction by the session or other court. Hence, the
appeal should be maintainable.

Issue 2: WHETHER THE ACT OF THE DECEASED AMOUNTED TO GRAVE AND

SUDDEN PROVOCATION?

It is most respectfully submitted to this Hon'ble Courts-

"Exception 1 to section 300 IPC- When Culpade Homicide is not murder: Culpable Homicide is
not murder if the offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes death of the persons who gave the provocation or causes the death of any
other person by mistake or accident.

Exception 4 Under Section 300 of Indian penal Code

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in

the heat of passion upon a sudden quarrel and without the offenders having taken undue
advantage or cruel or unusual manner." In the present case there was sustained and sudden
provocation present. Thus it is humbly submitted that the act of the deceased amounted to grave
and sudden provocation.

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Issue 3: WHETHER IN ARGUENDO, THE ACT OF THE ACCUSED FALLS UNDER

AMBIT OF S.80 OF IPC ALONG WITH THE CIRCUMSTANTIAL EVIDENCES IN THE
PRESENT CASE?

The act of the Accused is done by accident or misfortune against. Deceased as the act was

done in an accident, without any criminal intention or knowledge.

Issue 4: : WHETHER THE LEARNED SESSION JUDGE ERRED TO COMING TO THE

CONCLUSION OF THE PRESENT APPELLANT’S GUILT?
It is most humbly submitted before the court this Hon’ble Court that the accused was not guilty
for committing the offence of murder u/s 302 rw 325 of the IPC .

The Session court has convicted the accuse u/s 302 and 325, for which the accuse isn’t liable. It
is humbly submitted that it can be clearly seen in the case at hand that John was provoked when
Mary accused him that he was thoroughly dishonest and he did not show her all the money
earned . the accusation which Mary did on John made him furious and thus he tried to attack
Mary, thus provocation is an excusable ground u/s 300 and 325. Convicting the appellant u/s 302
and 325 would cause grave miscarriage of injustice3 to the accuse.

3
Miscarriage of Justice refers to wrongful or malivious prosecution, regardless of whether it leads to conviction or
detention.

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ARGUMENTS ADVANCED

Issue 1: WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE DELPHI

HIGH COURT OR NOT?

(1.1)THE PRESENT APPEAL IS MAINTAINABLE BEFORE DELPHI HIGH COURT.

(1) It is humbly submitted before the Hon'ble High Court that the present appeal from the
judgment of the Sessions court is maintainable before the court as, [A] the High Court
has jurisdiction to hear the appeal under s.374 Cr.P.C.; and [B] the Judgment of
the Sessions court was erroneous .
(2) [A] THE HIGH COURT HAS THE JURISDICTION TO HEAR THE APPEAL UNDER
S.374 OF CR.P.C.
It is humbly submitted that an appeal is indisputably statutory right and an Accused who
has been convicted is entitled to avail this right which is provided under s.374 of the
Cr.P.C 4 Sec.374(2), states that, if a trial is held by the Sessions Judge in a which a
sentence of imprisonment of more than seven years has been passed, an appeal would lie
to the High Court.5
(3) In the present case, Accused has been sentenced by the Sessions court to life
imprisonment and for two years imprisonment u/s 302 & 325 of IPC6 respectively.
(4) Therefore, u/s 374 of Cr.P.C, the Accused has the right to appeal before the High Court
against the impugned order passed by the Session court.
(5) [B.] THE JUDGMENT OF THE SESSIONS COURT WAS ERRONEOUS.
The Session court has convicted the accuse u/s 302 and 325, for which the accuse isn’t
liable. It is humbly submitted that it can be clearly seen in the case at hand that John was
provoked when Mary accused him that he was thoroughly dishonest and he did not show
her all the money earned . the accusation which Mary did on John made him furious and
4
See Badri v. State of Rajasthan, (2000) 10 SCC 246.
5
The Code Of Criminal Procedur, No. 2 of 1974, Sec 374(2)
6
The Indian Penal Code, No.45 of 1860, INDIA CODE (1993), Sec 302.

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thus he tried to attack Mary, thus provocation is an excusable ground u/s 300 and 325.
Convicting the appellant u/s 302 and 325 would cause grave miscarriage of injustice 7 to
the accuse.
(6) In the present case the John (the accused) have filed an Appeal in the High Court of
Delphi because he was convicted under section - 302 rw 325 of the Indian Penal Code,
1860 by the session court .
(7) In order to make out an appeal under section 374(2) of the code of criminal procedure,
1973, 2 conditions are essential-
 Any person convicted on a trial held by a session judge or by an additional session judge
or in a trial held by any other court.
 The sentence of imprisonment should also be more than 7 years.
(8) In our present matter as well, the appellant has approached this Hon 'ble high court on the
following grounds-
 The accused was convicted by the session judge.
 He was punished with imprisonment for life.
(9) There are 2 leading case laws which would further be of an evidentiary value in regards to
this issue-
(10) In the case of Devender Kumar v. State of Rajasthan8, in this case the accused Devender
Kumar was convicted by the session court for punishment under section 302 of IPC, 1860
against which he filed an appeal to the hon ble high court and it was it held that the appeal
is considered to be maintainable on the ground that the appellant accused has his right to
appeal to the appellate court against the judgement of the lower court and was later
acquitted by the high court as his conviction proved to be wrong by the session court.
(11) In another case of Raja v. State of Madras 9 the appeal was also directed against the
verdict of conviction whereby the appellant accused was convicted for dowry harassment

7
Miscarriage of Justice refers to wrongful or malivious prosecution, regardless of whether it leads to conviction or
detention.
8
See Devender Kumar v. State of Rajasthan , 10th January,2011.
9
See Raja v. State of Madras W.P(MD)No.8862 of 2020 and W.M.P.(MD).Nos.8122, 8123 and 8125 of 2020

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under section- 498a of the Indian Penal Code, 1860 along with section 302 of The Indian
Penal code, 1860 sentencing him to undergo life imprisonment along with fine. The Hon
'ble High Court has heard the appeal and held that the appeal is maintainable and set aside
the conviction of the appellant accused.
(12) The right to life under Article 21 of the Constitution of India is wide enough to cover the
right of a convict to file an Appeal against an order of conviction. An appeal is the process
by which a judgment/order of a subordinate Court is challenged before its superior court.
An appeal can be filed only by a person who has been party to the case before the
subordinate Court. The right to file an appeal against an order of conviction is a
fundamental right guaranteed under Part III of the Constitution of Indiana, and more
specifically under Article 21. There are several other consequences follow from
conviction taken away, but the conviction renders a stigma Not only that the person's
liberty on the convict.
(13) Sections 374 of the Code grants right of appeal against Conviction. Any person convicted
on a trial held by a Sessions 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.10
(14) Section 382 of Cr.Pc. provides for Petition of appeal. Every appeal shall be made in the
form of a petition in writing presented by the appellant or his pleader, and every such
petition shall (unless the Court to which it is presented otherwise directs) be accompanied
by a copy of the judgment or order appealed against. The appeal made by the appellant
was in according to section 382 of Cr.PC.11
(15) From the above arguments and case laws, it is well settled that the high court being the
appellate court of jurisdiction has the power to hear the cases which comes before it by the

10
The Code of Criminal Procedure, 1973 by Ratanlal and Dhirajlal, 22nd edition
11
The Code of Criminal Procedure, 1973 by Ratanlal and Dhirajlal, 22nd edition

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appellant and also the appellant has the right to appeal against any order or judgment
passed by the lower court.
(16) Therefore, this issue is concluded by stating that the appeal filed by the appellant under
section 374(2) of the code of criminal procedure, 1973 should be maintainable and should
be properly taken into consideration.

Issue 2: WHETHER THE ACT OF THE DECEASED AMOUNTED TO GRAVE AND

SUDDEN PROVOCATION?
(1.1) GRAVE AND SUDDEN PROVOCATION:
(1) It is most respectfully submitted to this Hon’ble Court that :
(2) “ Exception 1 to section 300 IPC – When Culpable Homicide is not murder; Culpable
Homicide is not a murder if the offender, whilst deprived of the power of self control by
grave an sudden provocation, causes death of the persons who gave provocation or causes
the death of any other person by mistake or accident.
(3) Moreover, “Culpable Homicide is not a murder if it is committed without premediation in
a sudden fight in the heat of passion upon a sudden quarrel and without the offenders
having taken undue advantage or cruel or unusual manner.”
(4) LORD GODDARD, C.J, in R. DUFF Y& defined provocation as:
"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" and that
“…..there are two things, in considering it, to which the law attaches great importance.
The first of them is, whether there was what is sometimes called time for cooling, that is,
for passion to cool and for reason to regain dominion over the mind. Secondly, in
considering whether provocation has or has not been made out, you must consider the
retaliation in provocation- that is to say, whether the mode of resentment bears some
proper and reasonable relationship to the sort of provocation that has been given.

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(5) Further, in the case of Mahmood vs State12 ; In order to bring his case under Exception 1
to Section 300 I.P.C. an accused has to establish the following ingredients:
(i). The provocation was sudden;
(ii) the provocation wag grave; and
(iii) loss of self-control.
These three ingredients may be considered one by one.
(6) Whether the provocation was sudden or not does not present much difficulty. The word
'sudden' involves two elements. Firstly, the provocation must be unexpected. If an
accused plan in advance to receive a provocation in order to justify the subsequent
homicide, the provocation cannot be said to be sudden.
(7) Secondly, the interval between the provocation and the homicide should be brief. If the
man giving the provocation is killed with to a minute after fee provocation, it is a case of
sudden provocation., If the man is killed six bouts after the provocation, it is not a case of
sudden provocation.
(8) Further, it was stated in this case, in some decisions it has been suggested that in
considering whether the provocation was grave enough, the Court must inquire what a
reasonable person would do if provoked in a similar manner.
(9) In the case of Budhi Singh v. State of H.P13, the Supreme Court observed that the doctrine
of Supreme Court observed that the doctrine of sudden and grave provocation is
incapable of rigid construction leading to or stating any principle of universal application.
It was observed as under : The doctrine of sudden and grave provocation is incapable of
rigid construction leading to or stating any principle of universal application. This will
always have to depend on the facts of a given case. While applying this principle, the
primary obligation of the Court is to examine from the point of view of a person of
reasonable prudence if there was such grave and sudden provocation so as to reasonably
conclude that it was possible to commit the offence of culpablehomicide, and as per the
facts, was not a culpable homicide amounting to murder. An offence resulting from grave

12
See Mahmood vs State [2007 (11) SCALE 519],
13
See Budhi Singh v. State of H.P 2013 Cri.L.J.962

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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. The provocation could be an act or series of acts done by the deceased to the
accused resulting in inflicting of injury.
(10) In he case of K.M.NANAVATI Vs. STATE of MAHARASHTRA 14, the leading case
on provocation, the Hon'ble Supreme Court read into the Exception the following
propositions:-
(11) The test of 'grave and sudden' provocation is whether a reasonable man, belonging
to the same class of society to which the accused belongs, and placed in the situation in
which the accused was placed, would be so provoked as to lose his self-control.
In India, words 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 the Indian Penal Code.
(12) 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.
(13) 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 lapse of time, or otherwise
giving room and scope for premeditation and calculation.

(1.4.2) What would qualify as grave and sudden provocation:

(1) It is defined by the SC in BD Khunte v. Union of India & Ors15. There, it held that
the response to such provocation must be immediate and the cooling-off period must be
absent. If the response to the provocation has been preceded by a cooling-off period i.e.
where the accused received sufficient time to cool down his anger, the defence of
Exception 1 would not be attracted.

14
See K.M.NANAVATI Vs. STATE of MAHARASHTRA 14(1962)1 MLJ (CrL.)531(SC).
15
See BD Khunte v. Union of India & Ors ( Criminal Appeal No.242 of 2012.)

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(2) The Court ruled that Exception 1 would not be attracted due to sufficient time as the
“cooling-off” period between the provocation and the killing of the superior

(3) Subsequently, in Chaitu & Ors. v. State of Uttar Pradesh 16 , where a quarrel arose
between two parties over water sharing, one of the parties injured the other in the heat of
passion, who succumbed to injuries the next day. The Court extended Exception 1 to
cover the case of the appellants and held them liable only for culpable homicide not
amounting to murder.

(1.4.3) SUSTAINED PROVOCATION

(1) Under the English Law, the provocation must be grave as well as sudden. But, by way of
judicial thinking, the Indian Criminal Law has gone ahead. 17
(2) In our system, there is the concept of "sustained provocation". It is concerned with the
duration of the provocation. There may be incidents/occurrences, which are such that
they may not provoke the offender suddenly to make his outburst by his overt act.
However, it may be lingering in his mind for quite sometime, torment continuously and at
one of point of time erupt, which would lead to loss of self control, make his mind to go
astray, the mind may not be under his control/command and results in the offender
committing the offence. The sustained provocation/frustration nurtured in the mind of the
accused reached the end of breaking point, under that accused causes the murder of the
deceased
(3) In Ayyana v. State of Tamil Nadu18, it was held that courts in the decisions of BabuLal V.
State 19 and Suyambukkani v. State of Tamil Nadu 20 have added one more exception,
Known as 'sustained provocation' .Therefore , when considering whether there are
resources indicate a grave and sudden provocation, as contemplated under
Exception to Section 300 of the IPC deals with sustained provocation because of a series

16
See Chaitu & Others v/s State of Uttar Pradesh, Criminal Appeal No. 1323 of 2012, Decided On, 25 April 2014.
17
See KM Nanavati v. State of Maharashtra AIR 1962 SC 605.
18
See Ayyanar vs The State Of Tamil Nadu on 23 January, 2006.
19
See BabuLal V. State AIR 1960 All 223.
20
See Suyambukkani v. State of Tamil Nadu 1989 L W (Crl.) 86.

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of more or less grave acts spread out over a specific time period, would unquestionably
stand added to 1st exception to IPC Section 300.

It is evident from the bare and apparent facts on record that the conduct of the Appellants was
not predetermined and there was no time to cool down therefore the offence of murder is not
made out as it was truly grave and sudden.

In AHLUWALIA21, the appellant pleaded for substitution of her conviction for manslaughter for
that of murder. The English Court started looking at the past provocative incidents as relevant
provocation.

Moreover , the Hon'ble Apex Court held that , the continuous harassment and constant nagging
could have very well affected his mental balance and as such sustained provocation could have
reached a boiling point resulting in the dastardly act.22

(1.4.5) ABSENCE OF PRE-MEDIATION AND ILL-WILL ( when there is sudden provocation or

sustained provocation present)

(1) In the case of Muthu v. State of Tamil Nadu23, it has been stated that in the heat of the
moment people sometimes do act which aren’t premeditated. Hence, the law provides
that while those who commit acts in a fit or anger should also be punished, their
punishment should be lesser than that of premeditated offences. We are satisfied that
Muthu was deprived of the power of self-control by grave and sudden provocation which
led him to commit the offence
(2) Similarly, in the case of Chaitu v. State of UP (supra)24 , dispute was over sharing of
water from canal leading to quarrel and upon grave and sudden provocation.The court
held that the accused (appellant) had done so under sudden and grave provocation which
led him to commit murderous assault.

21
See R v. AHLUWALIA [1992 (4) All ER 889]: [(1993)96 Cr. APP. R 133].
22
See VASHRAM NARSHIBHAI RAJPARA vs. STATE OF GUJARAT [2009 (9) SCC 168].
23
See Muthu v. State of Tamil Nadu [(2007) 7 Supreme 547].
24
See Chaitu v. State of UP (2014) 11 SCC 218.

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(3) The appeal of the accused was allowed. Conviction of the accused was reduced from life
imprisonment under Section 302 to imprisonment for seven years under Section 304,
part-II of IPC vide Exception 1 to Section 300, IPC.

(1.4.6) Death caused due to grave and sudden provocation

(1) 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.
(2) 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.
(3) Thus, in the backdrop of the law relating to provocation, particularly sustained
provocation, when we look at the facts of the present case it comes to light that as
between the accused and the deceased there was continued strained relationship.
(4) From the facts it can be clearly seen that, On the occurrence day, prior to the commission
of the offence, there was wordy altercation between the accused and the deceased.
(5) Thus, the accused had killed the deceased i.e., the third person accidently/ mistakenly
actuated by Mary’s past provocative conduct. He has committed the offence due to the
sustained/cumulative provocation. It will fall under Exception 1 to Section 300 IPC.
What he has committed is culpable homicide not amounting to murder.
(6) Supporting the above argument, it is humbly submitted that the murder of the deceased
was an accidental murder .
(7) Supreme Court in Rita Devi v. New India Assurance Co. Ltd.25, the Supreme Court drew
distinction between a "murder" which is not an accident and a "murder" which is an
accident. The Supreme Court laid down the test that if the dominant intention of the

25
See Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC).

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felonious act is to kill any particular person, then such killing is not accidental murder but
a murder simpliciter. However, if the cause of murder or act of murder was originally not
intended and the same was caused in furtherance of any other felonious act, then such
murder is an accidental murder.
(8) In Tholan,26 Court came to the conclusion that the accused could not be convicted under
Section 302, but was guilty under Section 304 Part II. The circumstances which weighed
with this Court were :
i. there was no connection between the accused and the deceased and the presence of the
deceased at the time of the incident, was wholly accidental;
ii. altercation with the deceased was on the spur of the moment and the accused gave a
single blow being enraged by the deceased asking him to leave the place;
iii. requisite intention could not be attributed to the accused as there was nothing to show
that the accused intended the blow to land on the right side of the chest which proved to
be fatal.
(9) Thus, in the present case , there was sustained provocation as well as sudden provocation
and the acts done by the appellant John were not pre-mediated as there is no clear cut
intention of the appellant to kill the deceased. The deceased was passing the street asnd
accidently got injured which led to his death.

Issue 3: WHETHER IN ARGUENDO, THE ACT OF THE ACCUSED FALLS UNDER

AMBIT OF S.80 OF IPC ALONG WITH THE CIRCUMSTANTIAL EVIDENCES IN THE
PRESENT CASE?
It is humbly submitted that the Accused's act qualifies under s.80 of the IPC27 as; the act of the

accused was done by [A] accident or misfortune; [B] without any criminal intention.

[A] ACT WAS DONE BY ACCIDENT OR MISFORTUNE.

1. 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 d of such act is not so
probable that a person of ordinary prudence ought, under the circumstances in which it is

26
See Tholan vs State Of Tamil Nadu on 13 January, 1984; AIR 1984 SC 759, 1984 CriLJ 478, (1984) 2 SCC 133.
27
THE INDIAN PENAL CODE, NO. 45 OF 1860, SEC.80

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done, to take reasonable precaution against it. 28 Any idea of something which is
fortuitous and unexpected, is involved in the word 'accident.’29
2. In the present case, the Accused was provoked and he had the intention not to kill but
hurt Marry and by mistake the other person who was passing from the streets in the front
of house was hurt mistakenly .
3. Therefore, it is humbly submitted that the hurt that resulted in the death of the Deceased
was purely accidental.

B. ACT WAS DONE WITHOUT CRIMINAL INTENTION.

4. When there is nothing on the record to show that the Accused caused injury to the
Deceased without any criminal intent, then in such a case the act of the Accused falls
under the purview of s.80 of I.P.C.30
5. The deceased was an unknown person for the accused. Therefore, the overall conduct of
the accuse does not point towards any possibility of premediated criminal intent or
knowledge to kill the deceased.

(1.3.) PRESENCE OF CIRCUMSTANTIAL EVIDENCES ALONG WITH ABSENCE OF

MOTIVE:

1. In the case of Nandu Singh v. Madhya Pradesh that the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in favour of the accused.
2. The motive is a thing which is primarily known to the accused themselves and it is not
possible for the prosecution to explain what actually promoted or excited them to commit
the particular crime.
3. Court had the opinion that the absence of motive in a case depending on circumstantial
evidence is a factor that weighs in favour of the accused. 31

28
J F STEPHEN, A DIGEST OF CRIMINAL LAW 316,( 9th ed. 1950).
29
See Sukhdev Singh v. Delhi State ( Govt of NCT of Delhi), AIR 2003 SC 3716.
30
See Hori Lal v. State of Uttar Pradesh,(1983) Cr LR 473( UP).
31
See Vide Pannayar v. State of T.N.(2009) 9 SCC 152.

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4. Thus, it is humbly submitted that in the present case there was absence of motive and
circumstantial situations led the accuse to commit the offence.

Issue 4: : WHETHER THE LEARNED SESSION JUDGE ERRED TO COMING TO THE

CONCLUSION OF THE PRESENT APPELLANT’S GUILT?
1. It is one of the principles of criminal law that to constitute guilt there must be a guilty
intent along with the act itself 32 and that a crime is not committed if the mind of the
person doing the act in question is innocent. 33 The maxim governing the above
proposition is actus non facit reum, nisi mens sit rea’, 34 i.e., the act itself does not
constitute guilt unless done with a guilty intent which is the case in the instant matter.
2. It is humbly contended before this Hon’ble court that the accused is not guilty for
committing the offence of murder u/s 302 of the I.P.C as (1) The accused person clearly
deny the unfortunate death of the deceased to be murder, rather it was a mere accident
and (2)The most important ingredient of murder is intention of the accused to murder the
deceased, which is absent.

(1.4.1) SECTION 302: PUNISHMENT FOR MURDER

1. It is humbly submitted that the session court has greatly erred in holding the Accused
liable u/s 302 IPC as it has been failed to adequately establish the required mens rea .

(1.4.2) MENS REA OF THE ACCUSED HAS NOT BEEN ESTABLISHED.

1. It is submitted that the Court has failed to establish the mens rea on the following
grounds: (a)Accused did not have the intention to commit the offence; (b)
Accused did not have the motive to commit the offence.

(1.4.3) ABSENCE OF INTENTION TO CAUSE DEATH.

32
See Satvir Singh and Ors. v. State of Punjab and Anr., 1998 Cri LJ 405.
33
See The State v. Siddhannath Gangaram 1956 Cri LJ 1327.

34 See Kartar Singh v. State of Punjab, (1994) 2 SCR 375; State of Rajasthan v. Shera Ram, AIR 2012 SC 1; T. N.
Lakshmaiah v. State of Karnataka, AIR 2001 SC 3828.

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1. It is humbly contended that intention, being an invisible state of mind, has to be

gathered from various objective circumstances, such as, the weapon used, the ferocity
of attack, multiplicity of injuries and all the other surrounding circumstances.
2. In Re Devashayam case, 35 the Hon’ble Madras High Court observed that the
ingredient of knowledge and that of intention must be essentially present 36 in order to
constitute the essentials of criminal offence.
3. It is humbly contended that intention must be directed either deliberately to putting an
end to human life or to some act which to the knowledge of the accused is likely to
eventuate in putting an end to human life.

(1.4.4) ABSENCE OF MOTIVE TO KILL THE DECEASED

1. It is humbly contended that accused was not having any motive to cause death of
the victim; the accused was provoked by Mary and there was sudden heat of but
there was no preparation on the part of accused which can lead us to the fact that
motive of accused was to murder victim third person .
2. In the case of Shriram v. the State of Maharashtra37, the accused murdered three
children of his but was given benefit of doubt due to the various reasons including
lack of preparedness and was not convicted u/s 302 of the IPC

(1.4.5) NO NEXUS BETWEEN ACT OF THE ACCUSED AND DEATH OF THE VICTIM

1. It is most humbly contended that death of the deceased is independent of the act of the
accused and in such cases the accused cannot be held guilty for such offence which he
didn’t intend to commit.

(1.4.6) ABSENCE OF KNOWLEDGE THAT HE IS LIKELY BY SUCH ACT TO CAUSE

DEATH.

35
1962) 1 MLJ.
36
See State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722.
37
1991 Cri LJ 1631.

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1. It is humbly stated that knowledge is a strong word and imports a certainty and not
merely a probability. The knowledge referred to in section 299 and section 300 is the
personal knowledge of the person who does the act.38
2. In the case at hand, as stated in the facts that the third person was walkin on the street in
front of the house and he got hit accidently which ruptured his spleen and let to death of
the person. Clearly, the accuse didn’t had the knowledge that he is likely by such act that
would cause the death of the third person .Thus, in the absence of such intention or
knowledge, the offence committed maybe the offence of causing grievous hurt or simple
hurt.39

(1.4.7) SECTION 299 IN THE INDIAN PENAL CODE

1. 299. 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.
2. culpable homicide may be committed by causing the death of a person whom the
offender neither intended, nor knew himself to be likely, to kill, a rule which though it
does not lie on the surface of Section 299, yet is, as we have seen, deducible from the
generality of the words '' causes death" and from the illustration to the section ; and the
rule then goes on to state that the quality of the homicide, that is, whether it amounts to
murder or not, will depend on the intention or knowledge which the offender had in
regard to the person intended or known to be likely to be killed or injured, and not with
reference to his intention or knowledge with reference to the person actually killed

(1.4.8) SECTION 300 IN THE INDIAN PENAL CODE

38
Supra Note 14.
39
See Randhir Singh (1881) 3 All 587: (1881) 1 Weir 288.

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1. 300. 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—
I. (Secondly) —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—
II. (Thirdly) —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 ordinary course of nature to cause
death, or—
III. (Fourthly) —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.
2. The concerned proviso of the exceptions are;
3. Exception 1.—When culpable homicide is not murder.—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 or causes the death
of any other person by mistake or accident. The above exception is subject to the
following provisos:—
I. (First) —That the provocation is not sought or voluntarily provoked by the offender as an
excuse for killing or doing harm to any person.
II. (Secondly) —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. (Thirdly) —That the provocation is not given by anything done in the lawful exercise of
the right of private defence. Explanation.—Whether the provocation was grave and
sudden enough to prevent the offence from amounting to murder is a question of fact.
4. Also, Exception 4.—Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without
the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or
commits the first assault.

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5. In the present case, it is clearly proved from the facts that John was without any guilty
intention because he was not carrying any harmful weapon with him. There was sustained
and sudden provocation by Mary due to which John lost his temper at that time and there
were heated arguments between them. As per the situation it is clearly intended that such
a fight was in the sudden qurral in nature than accuse as not liable as per sec 302
punishment because as we see the situation it comes undr the purview of exception 1 and
4 of Sec 300.
6. "Culpable homicide is not murder if it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel and without the offenders having taken
undue advantage or cruel or unusual manner."
7. Murder and culpable homicide not amounting to murder is that culpable homicide not
amounting to murder only involves an intention to cause an injury, and not to kill.
8. It was held in Kikar Singh Vs. State of Rajasthan 40 that in order to bring an act under
Exception 4 all the 5 ingredients have to be essentially proved that is
(a) Without premeditation
(b) In a sudden fight
(c) In the heat of passion
(d) Upon a sudden quarrel
(e) Without the offender having been taken undue advantage or acted in cruel or unusual
manner
9. Hc of Rajasthan in the same case held that:
10. The occasion for sudden quarrel must not only be sudden but the party assaulted must be
on an equal footing in point of defence, at least at the onset. Here in this case both the
deceased and the appellant were unarmed and guelled with each other
11. Also, Mahmood vs State 41
The court observed that there are certain ingredients required to fulfil in order to come
under the ambit of this section. They are as follows.

40
See Kikar Singh Vs. State of Rajasthan 1993 SCR 3 696.
41
See Mahmood vs State AIR 1961 All 538.

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12. The provocation must be sudden- The term sudden constitutes two elements- the
provocation needs to be unexpected it means that it should not be planned beforehand.
The time gap between provocation and homicide should be short.
13. The provocation must be grave- A mere statement given by the accused that he was
provoked will not be accepted in the Court. The court needs to apply the objective test for
determining whether there was a grave provocation or not whether the reasonable man
would do the same act if he would be placed in the same situation as the offender.
14. Losing a self- control- If the court is satisfied that the provocation was sudden and grave
then the court will assume that he had lost his self-control.
15. In the case of Muthu vs State of Tamil Nadu (supra), the Court held that continuous
harassment would lead to the deprivation of the power of self-control. This will fall under
this exception.

(1.4.9) ACCIDENTAL MURDER

1. In the case at hand the murder of the decease was an accidental murder the murder was
not originally intended and the same was caused in furtherance of the grave and sudden
provocation and there was no mens rea on the part of the accuse towards the deceased, it
was an mere accident.
2. Supporting the afore mentioned argument with the help of a case law, Supreme Court in
Rita Devi v. New India Assurance Co. Ltd., 42 The Supreme Court drew distinction
between a "murder" which is not an accident and a "murder" which is an accident. The
Supreme Court laid down the test that if the dominant intention of the felonious act is to
kill any particular person, then such killing is not accidental murder but a murder
simpliciter. However, if the cause of murder or act of murder was originally not intended
and the same was caused in furtherance of any other felonious act, then such murder is an
accidental murder.

42
See Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC).

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(1.4.10) ABSENCE OF ILL WILL AND PRE MEDIATION

1. As pointed out earlier, ill will and premeditation should be both present in the case of
murder. The absence of one of them coupled with an important excusing circumstance
would transform the offence into a culpable homicide. In the present case, there is, of
course, no premeditation as well as no ill will. The death of the deceased was an accident
due to the heat of sudden fight and sudden provocation.

( 1.4.11)SINGLE BLOW INJURY :

1. Murder and culpable homicide not amounting to murder is that culpable homicide not
amounting to murder only involves an intention to cause an injury, and not to kill.
2. Taking note of the circumstances, that the accused was not carrying the weapon in
advance, there was no pre-meditation, that he was a young college boy, that there was
some altercation between father of the accused and deceased, and that the death occurred
after six days, the conviction was altered from Section 302 to 304 Part II. 43
3. In State of Karnataka v. Vedanayagam44 this Court considered the usual argument of a
single injury not being sufficient to invite a conviction under Section 302 IPC.
4. It would thus be seen that in all these cases, the accused landing a single blow was only
one of the several circumstances which persuaded this Court to hold that the offence did
not fall under Section 302 but fell under Section 304 Part I or Part II. The fact that the
accused gave only one blow, by itself, would not mitigate the offence to one of culpable
homicide not amounting to murder.

5. It is humbly contended that accused was not having any motive to cause death of the
victim; the murder of the deceased was an accidental murder the murder was not originally
intended and was in furtherance of the accused who was provoked by Mary and there was
sudden heat of but there was no pre- mediation on the part of accused moreover it was an
accidental murder and the fact that the accused gave only one blow, by itself, which can

43
See Randhir Singh Alias Dhire vs State Of Punjab on 18 September, 1981; AIR 1982 SC 55, 1982 CriLJ 195,
1981 (3) SCALE 1584, (1981) 4 SCC 484, 1981 (13) UJ 850 SC).
44
See State of Karnataka v. Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231].

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lead us to the fact that motive of accused was not to murder victim third person that John
was without any guilty intention because he was not carrying any harmful weapon with
him. There was sustained and sudden provocation by Mary due to which John lost his
temper at that time and there were heated arguments between them. As per the situation it
is clearly intended that such a fight was in the sudden qurral in nature

6. Therefore, it is humbly submitted before this Hon’ble Court that the charge under section
302 of the I.P.C. has not been made out and so the court’s decision of convicting John from
the charge of murder stands incorrect.

(1.4.12) WHETHER JOHN THE ACCUSE IS LIABLE U/S 325 OF THE INDIAN PENAL CODE,
1860?
1. It is humbly submitted that the session court has greatly erred in holding the Accused
liable u/s 325 of IPC .
2. Section 325 in The Indian Penal Code
3. 325. Punishment for voluntarily causing grievous hurt.—Whoever, except in the case
provided for by section 335, voluntarily causes grievous hurt, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine
4. Therefore, it is humbly submitted that the act of hurt was as a result of provocation on
John by Mary is not an offence u/s 325.
5. "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" 45 It is the defence used when criminal
liability arises due to some incident and the offender is not completely responsible .”
6. In K.M. Nanawati v State of Maharashtra, it was observed that the test of a grave and
sudden provocation is whether a reasonable man belonging to the same class of society as

45
See R v. Duffy,(1949) 1 All ER 932.

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the accused placed in the situation in which the accused was placed would be so
provoked as to lose his self-control.
7. In the present case, John was provoked when Mary accused him that he was thoroughly
dishonest and he did not show her all the money earned . the accusation which Mary did
on John made him furious and thus he tried to attack Mary.
8. Sec 355 makes every criminal force used to dishonour a person under the influence of
sudden and grave provocation, an excusable homicide.
9. Moreover ; 325 makes provocation an excusable ground for causing grievous hurt.46

(1.4.13) WHAT CONSTITUES GRIVEIOUS HURT?

1. The draftsman of IPC found it tough to draw a line among those physical hurts, which
can be severe, and people who are moderate. However, they special certain types of hurts
as grievous hurt.
2. The following kinds of hurt only are termed as “grievous”:
(a) Emasculation,
(b) Permanent injury to eyesight or either of the eye,
(c) Permanent deafness or injury to either of the eye,
(d) Privation of any member or joint (loss of limb),
(e) Impairing of Limb,
(f) Permanent disfiguration of the head or face,
(g) Fracture or dislocation of a bone or tooth,
(h) Any hurt which risks life or which causes the victim to be during the time of twenty days in
severe bodily pain, or unable to follow his ordinary pursuits.

46
Section 335 in The Indian Penal Code
335. Voluntarily causing grievous hurt on provocation.—Whoever 1[voluntarily] causes grievous hurt on grave and
sudden provoca-tion, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other
than the person who gave the provocation, shall be punished with imprisonment of either description for a term
which may extend to four years, or with fine which may extend to two thousand rupees, or with both. Explanation.—
The last two sections are subject to the same provisos as Explanation 1, section 300.

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3. It is humbly submitted that John was provoked by Mary which made him furious and he
tried to attack her i.e., John had guilty intention ( mens rea) towards Mary for causing her
hurt.
4. But it is clearly mentioned in the facts that, Mary tripped and fell down which injured her
nose. Thus, the injury in the case at hand is a simple hurt and not a grevious one caused
by John’s actions.

5. Therefore, it is humbly submitted before this Hon’ble Court that the charge under section
325 of the I.P.C. has not been made out and so the court’s decision of convicting John from
the charge of Punishment for voluntarily causing grievous hurt stands incorrect.
6. Thus, it is humbly submitted before the Hon’ble High Court that the Learned Session
Judge erred to coming to the conclusion of the present Appellant’s guilt u/s 302 rw 325.

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PRAYER

Therefore, in 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 please to:

(1) Allow the appeal.

(2) Set aside the judgement given by the Hon'ble Sessions Court against the
Appellant
(3) Acquit the Appellant from prosecuting under S. 302 rw S.325 of IPC for the
offence of murder.

AND/OR

Pass any other order,direction, relief that this Hon’ble Court may deem fit in
the best interest in the light of equity, justice and good conscience

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

Place: Delphi, Indiana S/d

(Counsel on behalf of the appellant )

Date:

37