Pan India Legal Awareness and Outreach Campaign-1 - 093759

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Pan India Legal Awareness and Outreach Campaign Moot Court Competition, 2021
TC:
Pan India Legal Awareness and Outreach Campaign
Moot Court Competition, 2021
Submitted by:
1. Pori Bormudoi
2. Umanandinee Choudhury.
Memorandum on behalf of the appellant

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Pan India Legal Awareness and Outreach Campaign

Moot Court Competition, 2021
BEFORE THE GUAHATI HIGH COURT
Alok……………………………………………………..Appellant
Vs.
State of Assam……………………………………. Respondent
MEMORANDUM FOR APPELLANT

DRAWN AND FILED BY THE COUNSELS ON BEHALH OF THE APPELLANT

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TABLE OF CONTENTS
I. Table of content …………………………………………………..3

II. List of abbreviations………………………………………………4
III. Index of authorities……………………………………………....5
a) Table of cases………………………………………………………..5
b) Books…………………………………………………………………….5
c) Websites……………………………………………………………….5
d) Statutes…………………………………………………………………5
IV. Statement of jurisdiction……………………………………….6
V. Statement of facts…………………………………………………7
VI. Points of arguments………………………………………………8
VII. Arguments advanced…………………………………………….9-12
VIII. Prayer……………………………………………………………………13

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List of Abbreviations
ABBREVIATON DEFINITION
Hon’ble Honourable
AIR All India Record
HC High Court
CrPC Criminal Procedure code,1973
i.e. That is
IPC Indian Penal Code
U/S Under Section
SC Supreme Court
V Versus

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INDEX OF AUTHORIES
Case laws:
1. State of A.P. v. R. Punnayya,((1976) 4 SCC 382)
2. Reg. v. Govinda ( 1877) ILR 1 Bom 342)
3. K.M. Nanavati v. State of Maharashtra, 1961 (AIR 1962 SC 605):
4. Budhilal v. State of Uttarakhand
Statues:
1. Indian Penal Code, 1860
2. Criminal Procedure Code,1973
3. Indian Evidence Act,1872
Websites:
1. https://www.mondaq.com/india/crime/988662/difference-between-
murder-and-culpable-homicide#:~:text=WHEN%20THE%20PERSON
%20EXCEEDS%20HIS%20RIGHT%20TO%20PRIVATE%20DEFENSE&text=If
%20the%20accused%20intentionally%20exceeds,homicide%20not
%20amounting%20to%20murder
2. https://www.legalserviceindia.com/legal/article-3331-dying-declaration-
section-32-of-indian-evidence-act-.html

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Statement of Jurisdiction
The Hon’ble Court of Gauhati HC exercise its power under Section 374 (2), CrPC, which
states that any person, convicted on a trial held by a Sessions Judge or Additional
Sessions Judge or any other court whereby a sentence of more than seven years has
been passed against him or any other person convicted at the same trial, may appeal
to the High Court concerned. The appellant most humbly & respectfully present this
murder case before the Hon’ble court.

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Statement of Facts
1. That Alok & Anita were married in 2000 residing at Dispur, Assam.
2. That after few years of marries they started to quarrel on regular basis
over frivolous issues.
3. That one-day Anita left her matrimonial home with her eldest daughter
Hiya & started to living with her further Mohan at Beltola Assam.
4. That Alok kept his younger daughter with his sister, Jyoti.
5. That one-day Anita came to Jyoti’s house and forcefully took Diya with her.
6. That Alok on hearing this reached Mohan’s house to quarrel.
7. That after two days of the incident , Alok & Mohan meet at Beltola market
& started to quarrel & grapped each other.
8. That in the heat of passion generated Mohan slapped Alok saying that he
will killed him.
9. That by hearing this Alok in the heat rage took a stick lying nearby and
gave a blow to the stomach of Mohan.
10. That Mohan fell down instantly.
11. That he was suffering from pancreas disease.
12. That before dying Mohan gave his dying declaration regarding the
fight and knowledge about his pancreas disease.
13. That an eyewithness stated before the Sessions Court that it was
Mohan who slapped Alok first & started to quarrel.

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Points of arguments
1)Whether the appeal is sustainable?
2) Whether the act amounted to culpable homicide?
3) Whether the act amounted to murder?
4) Whether the dying declaration is valid?
Arguments advanced
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1)Argument: The appeal is sustainable?
The Counsel on behalf of the appellant most humbly submits that appeal is sustainable. Because it is
a case of culpable homicide. An offence will not amount to 'Murder' unless it includes an offence which
falls under the definition of culpable homicide as per the definition of 'Murder' under IPC. All murders are
culpable homicide but all homicides are not murders. According to section 299 of IPC i.e., Culpable
homicide states as— 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.
The counsel relies upon the fact that the appellant doesn’t have any intention to killed the respondent. Tt
was just due to the provocation by the respondent, appellate took that step. So, it is a case of capable
homicide not amounting to murder as there were no intention to kill respondent.
Case law:
The distinction between the two was aptly set forth by Sarkaria J., in State of A.P. v. R. Punnayya 1,
"In the scheme of the Penal Code, 'culpable homicide' 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.
The appellant was provoked by the respondent by slapping the him on the market & threatening him by saying he will
kill him thus in protecting his body in the exercise of his private defence he just took a stick nearby & in the rage of anger
he hit Mohan but his intention was not to killed him. There is an eye witness who had clearly seen that it was the
respondent who provoke appellant 1st & slapped him.
2)Argument: The act amounted to culpable homicide:
The act amount to culpable homicide. For this we must know the meaning of culpable homicide. Homicide
means the killing of a man by a man. Culpable homicide is punishable by law and is further divided into two
categories:
 Culpable homicide amounting to murder

 Culpable homicide not amounting to murder
In the case of Reg. v. Govinda,2 the accused had knocked down his wife, kept a knee on her chest and gave
two to three violent blows with the closed fist on her face. This act produced extraversion of blood on her
brain and afterwards, the wife died due to this. The act was not committed with the intention of causing
death and the bodily injury was not sufficient to cause death in the ordinary course of nature. The accused
was liable to culpable homicide not amounting to murder. Injury was not sufficient to cause death in the
ordinary course of nature. The accused was liable to culpable homicide not amounting to murder.
In this case also just giving blow to the stomach by a stick was not sufficient to cause murder. The
appellant’s intention was not to killed respondent but just to protect himself from respondent. So, the
appellant is liable for culpable homicide not amounting to murder & not for murder.
1
(1976) 4 SCC 382
2
1876
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Section 300 after laying down the cases in which culpable homicide becomes murder, states certain
exceptional situations under which, if murder is committed, it is reduced to culpable homicide not
amounting to murder punishable under section 304, IPC and not under section 302, IPC. The exceptions
are:
a) Grave and sudden provocation

b) Private defence
c) Exercise of legal power
d) Without premeditation in sudden fight and
e) Consent in case of passive euthanasia
A) SUDDEN AND GRAVE PROVOCATION

If the offender is deprived of the power of self-control due to sudden and grave provocation, and
his act causes the death of the person who provoked or death of any other person by accident or
mistake. From this point it is clear that the appellant was not liable for murder as his act was done
after he was provoked suddenly by respondent by slapping appellant at the market place.
The counsel has an eye witness to prove our point that appellant was provoked by respondent. But there
was no witness to prove that appellant wasn’t provoke by respondent.
CASES/JUDGMENTS FOR DISCUSSION
K.M. Nanavati v. State of Maharashtra,3
In this case, the Supreme Court had extensively explained the law relating to provocation in India. It was
observed by the court:
 The test of "sudden and grave provocation" is whether a reason

 nable man, who belongs to the same society as the accused, is placed in the situation in which the
accused was placed would have been so provoked as to lose his self-control.
 Under certain circumstances, words and gestures may also lead to sudden and grave provocation to
an accused, so as to bring his act under an exception.
 The mental background of the victim can be taken into consideration, taking account of his previous
act to ascertain whether the subsequent act leads to sudden and grave provocation for committing
the offence.
 The fatal blow clearly should trace the influence of passion that arises from the sudden and grave
provocation. It should not be after the provocation has cooled down due to lapse of time,
otherwise, it will give room and scope to the accused for altering the evidence.
This case clearly shows that appellant is liable for culpable homicide because a reasonable man will do
the same in the same situation also respondent’s slap & the word that he will kill him was sufficient to
get angry any person. More-over the previous situation going with Alok that his younger was forcefully
taken by his wife & their regular fights makes his mental situation worst.
A. WHEN THE PERSON EXCEEDS HIS RIGHT TO PRIVATE DEFENSE

3
1961 (AIR 1962 SC 605):

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Act of private defence can be said to have been exercised, when the act is committed in order to defend
oneself from further harm. If the accused intentionally exceeds his right to private defence, then he is
liable to murder. If it is unintentional, then the accused will be liable to culpable homicide not amounting
to murder. If the intention is present the crime is said to be committed under Section 300 of IPC. Here, the
appellant hasn’t exceed his right of private defence because mere blow on the stomach of the respondent
in retuned of slap doesn’t meant exceeding his private defence .
3) Argument: The act doesn’t amount to murder?

It is not a murder case. For this 1st we need to analyse the definition of murder.
MURDER AS PER SECTION 300 OF THE INDIAN PENAL CODE
Section 300 of the IPC reads as follows: 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 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 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 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.
If we analyse the definition under Section 300 of the IPC, culpable homicide is considered as murder if: The
act is committed with an intention to cause death. The act is done with the intention of causing such
bodily injury for which the offender has knowledge that it would result in death. The person has
the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act,
this would amount to murder.
So, in this case the appellant neither intent to killed respondent nor he knew that his act can cause the
death of respondent. Thus, it is not murder.
If the person is killed in cold-blood or with planning then it is murder because the intention to kill is in high
degree and not out of sudden rage or provocation. On other hand, if the victim is killed without pre-
planning, in sudden fight or in sudden anger because of somebody's provocation or instigation, then such a
death is called culpable homicide.
So, it is clear from the above point that it wasn’t a murder because there was no preparation for the act,
they just accidently happen to meet at the Beltola market & Mohan started to fight with my client as there
was an eye witness to proof my point & provoke my client to do such act. So, his act can’t be murder rather
it is a case of culpable homicide.
It was held in Budhilal v. State of Uttarakhand, that the distinction between section 299 clause (b) and
section 300, clause (3) lies in that in case of former bodily injury is likely to cause death but in case of
lattera bodily injury is sufficient in the ordinary course of nature to cause death. So, in this case also the
appellant act was not sufficient to cause the death of respondent because just by a blow on the
stomach on the respondent was not sufficient in ordinary course of nature.
4) Argument: The dying declaration is not valid?

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Word “Dying Declaration” means a statement written or verbal of relevant facts made by a person, who
is dead. It is the statement of a person who had died explaining the circumstances of his death. Section 32
of Indian Evidence act deals with the cases related to that person who is dead or who cannot be found.
Acceptance of Pakala ruling by SC:
It is a settle law that it is not safe to convict an accused person on the evidence furnished by a dying
declaration without further corroboration because such a statement is not made on oath and is not
subjected to cross examination and because the maker of it might be mentally and physically in a state of
confused.
So, the appellant shouldn’t be convicted based on the dying declaration & it should be cross-examine the
dying declaration. Though the appellant was aware of the fact that respondent was suffering from
pancreas but by just giving a blow to stomach is not at all sufficient to cause death.

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PRAYER
Wherefore in the light of facts of the case, arguments advanced and authorities cited, it is
most humbly prayed before the Hon’ble Court that it may please to hold, adjudge and
declare that:
a) To acquit appellant for murder under section 302 of the IPC,1860
Also, pass any other order that Court may deem fit in the favour of appellant to meet
the ends of equity, justice and good conscience.
Dated: 11/11/2021 Respectfully submitted,

Placed: Guwahati, Kamrup (M) Counsel for appellant

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Memorandum on behalf of the appellant