UILS Compulsory Academic Moot-2018

UILS Compulsory Academic Moot-2018

Before the Court of Sessions at

Union Territory of Chandigarh

In the matter of:

CRM No……… of 2018 

Union Territory of
Chandigarh……………………………………………… (Prosecution)

Versus

Raj…………………...…………………………………..…… (Defence)

FOR OFFENCE CHARGED UNDER SECTION 302 OF THE

INDIAN PENAL CODE, 1860

ON SUBMISSION TO THE SESSIONS COURT, CHANDIGAR

CHANDIGARH
H

COUNSEL APPEARING ON BEHALF OF THE DEFENDANTS

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

TABLE OF CONTENTS

1)  List of Abbreviations

2)  Index of Authorities

a)  Indian Case Laws

b)  Statutes

c)  Books Cited

d)  International Cases

e)  Online Databases

3)  Statement of Jurisdiction

4)  Statement of Facts

5)  Summary of Arguments

6)  Arguments Advanced

a)  Whether there was grave and sudden

provocation causing the accused to act? 

b)  Whether the accused had an intention to

cause death of the deceased or had

knowledge that such bodily injury is likely to

cause death? 

7)  Prayer

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

LIST OF ABBREVIATIONS
ABBREVIATION FULL FORM 

& And 

A.I.R All India Reporter  

Cr.P.C Code of Criminal

Procedure

Cri.L.J Criminal Law

Journal 

MP Madhya Pradesh 

Pg. Page 

r/w Read With

Sec. Section

SC Supreme
Court

SCC Supreme Court Cases 

u/s Under
Section

UOI Union of
India

v. Versus

ILR Indian Law

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UILS Compulsory Academic Moot-2018

INDEX OF AUTHORITIES

a)  Indian Case Laws

b)  Statutes
1.  The Indian Penal Code, 1860 (Act 45 of 1860)

2.  The Code of Criminal Procedure, 1973 (Act 2 of

1974)

c)  Books Cited

1)  Ratanlal & Dhirajlal, THE INDIAN PENAL CODE

140 (33RD ed., 1981)

2)  P.S. Pillai’s CRIMINAL LAW (12th ed.,2014)

d)  International Cases

e)  Online Databases

1)  Westlaw (www.westlawindia.com)

(www.westlawindia.com)

2)  Manupatra (www.manupatra.com)

(www.manupatra.com)

3)  SCC Online (www.scconline.in)

(www.scconline.in)

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

STATEMENT OF JURISDICTION 

The Hon’ble Court has jurisdiction to try the instant matter under Sec.177 r/w Sec.209 of the 
the  
Code of Criminal Procedure, 1973.

Sec.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.’ r/w Sec.209:

Sec.209: Commitment of case to Court of Session when offence is triable exclusively by

it- When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by

the Court of Session, he shall- 

(a) commit the case to the Court of Session; 

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during,

and until the conclusion of, the trial; 

(c) send to that Court the record of the case and the documents and articles, if any, which are

to be produced in evidence; 

(d) notify the

t he Public Prosecutor
Pro secutor of the t he case to the Court of  Session.
th e commitment of the

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UILS Compulsory Academic Moot-2018

STATEMENT OF FACTS

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

SUMMARY OF ARGUMENTS

a) Whether there was grave and sudden

su dden provocation causing the accused to act?

The accused cannot be held liable for murder as there was sudden and grave provocation
leading to the alleged act causing the death of the deceased and as such falls within Exception 1
of section 300 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the Code’).
Code’).  

b) Whether the accused had an intention to cause death of the deceased or had knowledge
that such bodily injury is likely to cause death?

The accused had no intention of causing the death of the deceased as is clear from
circumstantial evidence and the behavior of the accused and thus does not fall under the ambit
of section 304 part I of the Code.

And, that the defence most vehemently denies all other charges framed against the accused.

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

ARGUMENTS ADVANCED

a) Whether there was grave and sudden

su dden provocation causing the accused to act?

It is submitted that the accused whilst deprived of self-control and due to sudden and grave

provocation committed the said act. The said act falls under the first
f irst exception to section 300

under the Code. The exception reads:

Exception 1.—
1.—When culpable homicide is not murder.—
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:—

provisos:— 

(First) —That the provocation is not sought or voluntarily provoked by the offender as an

excuse for killing or doing harm to any person.

(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.

(Thirdly) —That the provocation is not given by anything done in the lawful exercise of the right

of private defence. Explanation.—

Explanation.—Whether the provocation was grave and sudden enough to

prevent the offence from amounting to murder is a question of fact.1 

Homicide is the killing of a human being by another. Under this exception, culpable homicide is

not murder if the following conditions are complied with : (1) The deceased must have given

provocation to the accused. (2) The provocation must be grave. (3) The provocation must be

sudden. (4) The offender, by reason of the said provocation, shall have been deprived of his

power of self-control. (5) He should have killed the deceased during the continuance of the

deprivation of the power of self-control. (6) The offender must have caused the death of the

person who gave the provocation or that of any other person by mistake or accident.

It is pertinent to note that the simple gesture of nodding on the phone and the suspicious

behaviour of Anita laid the foundation of the provocation in the accused’s

accused’s mind.
 mind.

1 section 300, Indian Penal Code, 1860.

MEMORIAL ON BEHALF OF THE DEFENCE

 

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“…and that
“…and that for the ascertainment of the suddenness of the provocation it is not the mind of the

person who provokes that matters but that of the person provoked that is decisive.”2 

Publi c Prosecutions3, Viscount Simon, L. C., states the scope of the

In Mancini v. Director of Public

doctrine of provocation thus:

(a)  consider whether a sufficient interval has elapsed since the provocation to allow a

reasonable man time to cool, and (b) to take into account the instrument with which the

homicide was effected, for to retort, in the heat of passion induced by provocation, by a

simple blow, is a very different thing from making use of a deadly instrument like a

concealed dagger.

Indian courts have not maintained the distinction between words and acts in the application of

the doctrine of provocation in a given case. The Indian law on the subject may be considered

from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount

to provocation and (2) what is the effect of the time lag between the act of provocation and the

commission of the offence. In Empress v. Khogayi4, a division bench of the Madras High Court

held, in the circumstances of that case, that abusive language used would be a provocation

sufficient to deprive the accused of self-control. The learned Judges observed :

"What is required is that it should be of a character to deprive the offender of his self-control.

In determining whether it was so, it is admissible to take into account the condition of mind in

which the offender was at the time of the provocation. In the present case the abusive

language used was of the foulest kind and was addressed to man already enraged by the

conduct of deceased's son."

It will be seen in this case that abusive language of the foulest kind was held to be sufficient in

the case of man who was already enraged by the conduct of deceased's son. The same learned

Judge in a later decision in Boya Munigadu v. The Queen5 upheld plea of grave and sudden

2
 K. M. Nanavati vs State Of Maharashtra, 1962
19 62 AIR 605, 1962 SCR Supl. (1) 567

3
 LR (1942) AC 1,9

4
 (1879) ILR 3 Mad 122,123

5 (1881) ILR 3 Mad 33,34-35

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

provocation in the following circumstances: The accused saw the deceased when she had

cohabitation with his bitter enemy; that night he had no meals; next morning he went to the

ryots to get his wages from them, and at that time he saw his wife eating food along with her

paramour; he killed the paramour with a bill-hook. The learned Judges held that the accused

had sufficient provocation to bring the case within the first exception to s. 300 of the Indian

Penal Code. The learned Judges observed :

"............If
"............If having witnessed the act of adultery, he connected this subsequent conduct as he

could not fail to connect it, with that act, it would be conduct of a character highly exasperating

to him, implying as it must, that all concealment of their criminal relations and all regard for his

feelings were abandoned and that they purposed continuing their course of misconduct in his

house. This, we think, amounted to provocation, grave enough and sudden enough to deprive

him of his self- control, and reduced the offence from murder to culpable homicide not

amounting to murder."

The case illustrates that the state of mind of the accused, having regard to the earlier conduct

of the deceased, may be taken into consideration in considering whether the subsequent act

would be a sufficient provocation to bring the case within the exception.

In Jan Muhammad v. Emperor6, it was held that the case was governed by the said exception.

The following observations of the court were relied upon in the present case:

"In the present case my view is that, in judging the conduct of the accused, one must not

confine himself to the actual moment when the blow, which ultimately proved to be fatal was

struck, that is to say, one must not take into consideration only the event which took place

immediately before the fatal blow was struck. We must take into consideration the previous

conduct of the woman, the whole unfortunate affair should be looked at as one prolonged

agony on the part of the husband which must have been preying upon his mind and led to the

assault upon the woman, resulting in her death."

All the aforementioned decisions dealt with a case of a husband killing his wife when his peace

of mind had already been disturbed by an earlier discovery of the wife's infidelity and the

subsequent act of her operated as a grave and sudden provocation on his disturbed mind.

6 ILR 1929 Lahore 816, 863

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UILS Compulsory Academic Moot-2018

Is there any standard of a reasonable man for the application of the doctrine of "grave and

sudden" provocation ? No abstract standard of reasonableness can be laid down. What a

reasonable man will do in certain circumstances

circumstances depends upon the customs, manners, way of

life, traditional values etc.; in short, the cultural, social and emotional background of the society

to which an accused belongs. In our vast country there are social groups ranging from the

lowest to the highest state of civilization. It is neither possible nor desirable to lay down any

standard with precision : it is for

f or the court to decide in each case, having regard to the relevant

circumstances.7 

The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and

sudden" provocation is whether a reasonable man, belonging to the same class of society as the

accused, placed in the situation in which the accused was placed would be so provoked as to

lose his self-control. (2) 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 the Indian Penal Code. (3) The mental background created by the

previous act of the victim may be taken into consideration in ascertaining whether the

subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal

blow should be clearly traced to the influence of passion arising from that provocation and not

after the passion had cooled down by lapse of time, or otherwise giving room and scope for

premeditation and calculation.

Bearing these principles in mind, Anita’s

Anita’s suggestive
 suggestive nod and her
her peculiar behaviour after the

phone call combined with the suspicion of an affair had an incredulous effect on Raj causing
him to lose self-control and effect injury on the deceased by hitting a fl
flower
ower pot laying nearby.

With a total absence of malice, the provocation was grave enough to overpower his

harmonious marriage to Anita. As all the essentials of Exception 1 to section 300 are met, the

act of the accused falls within the said exception.

b) Whether the accused had an intention to cause death of the deceased or had knowledge

that such bodily injury is likely to cause death?

7 K. M. Nanavati vs State Of Maharashtra, 1962 AIR 605, 1962 SCR Supl. (1) 567

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

It is humbly contended that the requisites to implicate the accused for the offence of murder

under section 300 of The Indian Penal Code, 1860. Where an offence depends upon the proof

of intention the Court must have proof facts sufficient to justify in coming to the conclusion

that the intention existed. No doubt one has usually to infer from the conduct and one matter

that has to be taken into account is the probable effect of conduct. But that is never

conclusive.8 Mens Rea is an essential element to constitute a criminal offence. At this point it is

imperative to distinguish between culpable homicide done with intention to causing death or

with knowledge that such bodily injury is likely

li kely to cause death i.e. the difference between

section 304 part I and part

part II.

304. Punishment for culpable homicide not amounting to murder.—

murder.—Whoever commits

culpable homicide not amounting to murder shall be punished with 1[imprisonment for life],
li fe], 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. 9 

Section 304, Part II of the Code applies where there is no guilty intention but there is guilty

knowledge. It refers to knowledge band does not refer to intention which has been segregated

in the first part. But knowledge is the knowledge of the likelihood of death. Where the accused

persons wielded their lathis on the head of one of the victims, they must have had knowledge
that they were causing such bodily injuries to him as were likely to cause death, the accused

committed offence under Section 304, Part II. 10 

In medical evidence there was only one injury on the head of the deceased which proved fatal,

caused by the accused by bhala blow, while other injuries

i njuries were simple. The other accused were

8
 Mayer Hans George, AIR 1956 SC 722

9
 section 304, Indian Penal Code, 1860

10 Chand v. State of U.P., AIR 1972 SC 955

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

generally alleged to have given lathi  blow.

 blow. The weapon used were also not deadly. In these

circumstances the accused had only knowledge that the injuries inflicted by them were likely
l ikely to

cause death. The accused had no intention to cause death nor they had intention to cause such

injury which would be likely to cause death. There conviction altered from section 304, Part I to

section 304, Part II.11 

Where except one blow of bunt side of axe on head, the accused did not cause any serious

injury on vital part of the body of the deceased, the deceased died six days after the

occurrence. The accused had no intention to cause the death of the deceased. The conviction of

the accused under section 302/34 was changed to one under section 304, Part II/34.12 

Where the accused caused injury by throwing stone on the head of the deceased as a result of

which brain came out and deceased died. The conviction of the accused under section 304, Part

II was held proper.13 

The question arises that even though the appellant had a chance and oppurtunities
oppurtunities to inflict
more injuries yet he did not avail of it, can an inference be made that it was injury intended to

be inflicted. The appellant used the axe, a weapon, for inflicting the injury and that too, on the

head of the deceased. It goes to establish that he had at least the knowledge that he is likely, by

his such act, to cause death and it indicated that he must have the knowledge that such an

injury caused by him would result in the following probabilities: a) that the injured might die, as

a result of such injury or b) the injured might survive. When two such alterations are available it

cannot be said that he, appellant caused the injuries with the intention to kill the deceased. In

view of this it is a fit case in which the conviction of the appellant be altered to under section
304, Part II of the Code.14 

The first part of section 304 applies where there is guilt intention whereas the second part

applies where there is guilty knowledge. But before the accused was held guilty and punished

11
 Madhusudhan Satpathy v. State of Orissa, 1995 SSC (Cri) 155

12
 Babu Lal v. State of M.P., 1993 Cr LJ 2667 (SC)

13
 Kotwal v. State of M.P., 1994 Cr LJ 255 (SC)

14 Sudhu Bhogta v. State of Bihar, 1996(2) East Cri C 782 (P

(Pat).
at).

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UILS Compulsory Academic Moot-2018

under the first part or the second part of section 304, a death must have been caused by him

under any of the circumstances mentioned in the five exceptions to section 300, which include

death caused while deprived of power of self control under grave and sudden provocation

while exercising in good faith the right of private defence of person or property, and in a

sudden fight in the heat of passion without premeditation.15 

Culpable homicide is dealt with in section 299 of the Code which contains three clauses.

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. Section 300 deals

with culpable homicide amounting to murder. Subject to the five exceptions enumerated in

section 300, culpable homicide is murder in four circumstances viz., if the act leading to death is

done with the intention of causing death, or if it is done with causing such bodily injury as the

offender to be likely to cause death of the victim 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 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. First clause of section 299 is the same as Firstly of section 300.

Act contemplated in secondly and thirdly  of

 of section 300 are aggravated form of act

contemplated in second clause of section 299. The act contemplated in fourthly  of

 of section 300
16
is an aggravated form of act contemplated in the third clause of section 299.  
As per the established law by the aforementioned precedents, it is transparently clear that the

accused in the present case had no intention to cause death or such bodily injury as iiss likely to

cause death. For instance, the nature of the instrument allegedly responsible for causing the

death of the deceased was availed to at the crime scene corroborating the fact that there was

no premeditation on part of the accused. The accused did not inflict multiple injuries to the

15
 Harendra Nath Mandal v. State of Bihar, 1993 East Cri C 239 (SC)

16 1983 Cri LJ (NOC) 206

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UILS Compulsory Academic Moot-2018

deceased further purporting that the accused was acting under a sudden and grave provocation

and the single and unintentional act comprises at the most an offence punishable under section

304, Part II of the Code.

And, that the defence most vehemently denies all other charges framed against the accused.

PRAYER 

Wherefore, in light of facts

f acts stated, issues raised, authorities cited and arguments advanced,

may this Hon’ble

Hon’ble Court
 Court be pleased to:-

1. Acquit Mr.Raj from the charge of murder under section 302 of the Code framed against him.

AND/ OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

 All of which is most humbly submitted. 

humbly and respectfully submitted.

Place: Chandigarh

Date: 13 October, 2018

S/d ________________

(COUNSEL ON BEHALFOF THE DEFENCE) 

DEFENCE)  

MEMORIAL ON BEHALF OF THE DEFENCE

 

UILS Compulsory Academic Moot-2018

MEMORIAL ON BEHALF OF THE DEFENCE