IN THE HON’BLE HIGH COURT OF ORISSA

CUTTACK
CR.L.A No. - XXXX of 2023
Code No. - ____

IN THE MATTER OF:

PETITION UNDER THE MATTER OF CRIMINAL APPEAL
AGAINST JUDGEMENT/SENTENCE PASSED BY THE
LEARNED SESSIONS COURT.
IN THE MATTER OF:
PETITION UNDER SECTION 374 SUB-SECTION 2 OF
CODE OF CRIMINAL PROCEDURE,1973.
IN THE MATTER OF:
1. NATU
S/o ………
Address ……………
2. TAPU
S/o……………….
Address……….
……………… (Appellants)

Versus

1. STATE OF ODISHA
……………… (Respondent)

To,
The Hon’ble Chief Justice & His Lordship's Companion Judges of the High
Court of Orissa at Cuttack. The Humble petition of the Petitioner abovenamed.

Date : By the Appellants through the

Place : CUTTACK
Advocate
 IN THE HON’BLE HIGH COURT OF ORISSA
CUTTACK
CR.L.A No. - XXXX of 2023
Code No. - ____
IN THE MATTER OF:
1. NATU
S/o ………
Address ……………
2. TAPU
S/o……………….
Address……….
……………… (Appellants)

Versus

1. STATE OF ODISHA
……………… (Respondent)
INDEX

Sl. No. Description of Document (s) Annexure Mark Page (s)

1. Petition of Appeal
 IN THE HON’BLE HIGH COURT OF ORISSA
CUTTACK
CR.L.A No. - XXXX of 2023
Code No. - ____

IN THE MATTER OF:

1. NATU
S/o ………
Address ……………
2. TAPU
S/o……………….
Address……….
……………… (Appellants)

Versus

1. STATE OF ODISHA
……………… (Respondent)

Date :
Place : CUTTACK By the Appellants through the

. Advocate
 TABLE OF CONTENTS
Headings Page No.
1. Index of Authorities ……………………………………… 0

2. Abbreviations ……………………………………………. 0

3. Statement of Jurisdiction ………………………………… 0

4. Statement of Facts ……………………………………….. 0

5. Statement of Issues ………………………………………. 0

6. Summary of Arguments ………………………………….. 0

7. Arguments Advanced …………………………………….. 0

8. Prayer ……………………………………………………. 0
 Index of Authorities: -
1. Code of Criminal Procedure, 1973
2. R.V. Kelkar’s Criminal Procedure
3. Code of Criminal Procedure- Ratanlal and Dhirajlal
4. The Indian Penal Code - Ratanlal and Dhirajlal
5. The Indian Penal Code – Manmohan Josi
6. The Indian Penal Code – P.R Chande
7. The Indian Penal Code – S.N. Mishra
8. The Indian Penal Code – K.D Gaur
9. https://blog.ipleaders.in/
10. https://caselaw.findlaw.com
11. https://supreme.justia.com/
12. Indiankanoon.com
 LIST OF ABBREVIATIONS
AC - Appeal Cases
AIR - All India Reporter
ALJ/AII LJ - Allahabad Law Journal
All CrC - Allahabad Criminal Cases
ASIL – Annual Survey of Indian Law
BLJR – Bihar Law Journal Reports
BHC – Bombay High Court Reports
Cr.P.C – Code of Criminal Procedure
CWN/Cal WN - Calcutta Weekly Notes
CLJ/Cal LJ - Calcutta Law Journal
CLT – Cuttack Law Times
Ch D - Law Reports (English) Chancery Division
Cr LJ – Criminal Law Journal
Cr AR (SC) – Criminal Appeals Reporter (SC)
IA - Law Reports Indian Appeals (Privy Council)
IC - Indian Cases
SCC – Supreme Court Cases
Most respectfully sheweth :
That, this Application of Appeal is filled by the Appellant, as mentioned above, before
this Hon’ble court for adjudication.

Statement of Jurisdiction: -
The Appellant humbly submits this petition of appeal before this Hon’ble Court. The
petition invokes its criminal appellate jurisdiction under section 374 of Code of
Criminal Procedure, 1973. If the trial is held by the Sessions Judge or an Additional
Sessions Judge, or by any other Court in which sentence of imprisonment for more
than seven years has been passed, an appeal would lie to the High Court. That, the case
is filled with in the due tenure and not barred under the provisions of Limitation Act,
1963. It sets forth that this application of appeal filled by the Appellant is not barred
by any other legal provisions for time being in force, therefore is maintainable from
all part before this court of law and this Hon’ble Court has complete jurisdiction to
entertain this case, hence amenable to criminal appellate jurisdiction under sec. 374 of
Code of Civil Prosedure,1908.

Statement of Facts: -
NATU along with his family including wife TANU daughter TINA and son TAPU
were living in a township. LAL was also lived in the same township. LAL was a friend
to TAPU. TAPU owed a debt to LAL of Rs.10000. TINA and LAL were in love with
each other and they used to meet often in TINA'S house on pretext to collect the debt
money in the absence of TINA'S father and brother. NATU doesn't like LAL'S
presence in his absence. He told LAL many times not to visit his house in his absence.
LAL ignored NATU'S warning every time. TAPU called LAL to come and collect
money from him from his house on a said date. LAL went their house at evening 8
o'clock. On hearing whispering coming from backyard of the house, all the family
members of NATU went to see, where they saw TINA and LAL talking. NATU on
seeing them together lost his temper and started abusing him. TAPU brought a lathi
from inside and showed it to LAL and abused. When TAPU started abusing LAL, he
lost control and told him that he is still in debt so he can't abuse him. Then NATU
grabbed the lathi from TAPU'S hand and started beating him on head. On hearing the
hue and cry people from locality came to his rescue. They found NATU was beating
LAL while TAPU was abusing him. Till then LAL was bleeding and was unconscious.
LAL was taken to hospital by the local people where he died after 10 days. The post
mortem report confirmed that LAL had injuries on his head and occurred much loss
of blood. None of the injury was sufficient to cause death. NATU and TAPU were
convicted u/s 302 by the Session Court.

Statement of Issues: -

i. Whether the Appellants can be convicted under Sec. 302 of I.P.C?

ii. Whether the act done by the Appellants was in furtherance of common intention
or not?
iii. What is the role of Tapu in that particular occurrence?
iv. Whether the person is died due to the hit and blow of Appellants or due to lack
medical assistance/ medical negligence?

Summary of Arguments

1. That, the appellants can not be convicted under Sec. 302 of I.P.C, as the act
done by the appellants does not amount to murder, which is done without any
criminal intention and completely out of grave and sudden provocation caused
by the deceased. Moreover, it pertinent to mention here that the Appellants’
family was caused serious mental trauma and sustained hues damage to their
good reputation and dignity in the society. Therefore, it is clear that the legal
rights of the Appellant were severely violated, which is a direct result of the act
committed by the Respondent.
2. That, the act done by the Appellants was not in furtherance of common intention
thus the principle of joint liability is not applicable for the Appellants.
3. That, Tapu has absolutely no contribution in the death of Lal. Lal was only
abused by Tapu, which is amounting to assault. It is pertinent to mention here
that, Tapu abused Lal due to his mischievous act of the deceased and under
grave and sudden provocation.
4. That, the person is died due to due to lack medical assistance/ medical
negligence but not due to the hit and blow of Appellants. As per the post mortem
report, none of the injury was sufficient to cause death of the person and the
person was died after 10 days from the date of tussle.
Arguments Advanced

i. Whether the Appellants can be convicted under Sec. 302 of I.P.C?

It is humbly submitted that, the appellants are convicted and sentenced

under Sec. 302 of I.P.C. Section 302, I.P.C prescribes punishment if the
accused is found guilty of offence of murder, which is defined under Sec.
300 of I.P.C.

According to Sec. 300 of Indian Penal Code, the term ‘murder’ is defined
as :-

‘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
2ndly, - 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
3rdly, - 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
4thly, - 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.

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

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

Exception 2. - Culpable homicide is not murder if the offender in the

exercise in good faith of the right of private defence of person or property,
exceeds the power given to him by law and causes the death of the person
against whom he is exercising such right of defence without
premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.

Exception 3. - Culpable homicide is not murder if the offender, being a

public servant or aiding a public servant acting for the advancement of
public justice, exceeds the powers given to him by law, and causes death
by doing an act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public servant and
without ill-will towards the person whose death is caused.

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's 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.
Exception 5. - Culpable homicide is not murder when the person whose
death is caused, being above the age of eighteen years, suffers death or
takes the risk of death with his own consent.’

In accordance with the statutory definition, it is observed that culpable

homicide is of four types/categories, such are discussed here in below;

Type/category 1 –
According to first clause, read with illustration (a), when a person causes
death of another person by doing an act with the intention of causing
death of that person.
Elements –
 The accused has malicious intention of causing death to the deceased
person. and
 An act has done by the accused person in furtherance of such
intention. and
 Death was caused to the person by such act.

Type/category 2 –
According to second clause, read with illustration (b), when a person
causes death of another person by doing an act 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.
Elements –
 The accused has malicious intention of causing such bodily injury as
he knows to be likely to cause death of the person to whom harm is
caused.
 An act has done by the accused person in furtherance of such
intention.
 Death was caused to any person by such act.

Type/category 3 –
According to third clause, read with illustration (c), when a person causes
death of another person by doing an act with the intention of causing
bodily injury and such bodily injury, which is intended to be inflicted, is
sufficient in ordinary course of nature to cause death
Elements –
 The accused has malicious intention of causing bodily injury to the
deceased person.
 The bodily injury, which is intended to be inflicted, is sufficient in
ordinary course of nature to cause death to a person.
 An act has done by the accused person in furtherance of such
intention.
 Death was caused to any person by such act.
 Type/category 4 –
According to fourth clause, read with illustration (d), when a person
causes death of another person by committing an 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.
 The accused has committed an act, which is so imminently dangerous
that it must, in all probability cause death or such bodily injury as is
likely to cause death.
 Death was caused to any person by such act.

As per the facts mentioned under ‘statement of facts’, it is crystal clear

that, the appellants neither have any malicious intention of causing death
to deceased person, nor causing any such bodily injury, which ultimately
results the death of the person, nor committed any act, which is so
imminently dangerous that it must, in all probability cause death. The
deceased was assaulted and bitten by a stick. Only several blows were
given to the deceased. In the meanwhile, he was rescued by the local
people. There was no such opportunity is there to bit the deceased for a
long time.

The deceased was a healthy man and was not labouring under a disorder,
disease or bodily infirmity. Therefore there is no chance to accelerate of
any such disorder, disease or bodily infirmity by causing several blows
with a stick, which will ultimately results the death of the person. It must
be noted here that the act done by the appellants was not a voluntary act,
without any premeditation of mind. It was a sudden fight in the heat of
passion upon a sudden quarrel. During the quarrel the appellant no. 1 lost
his self control and started to beat the deceased person with a stick. How
ever it should be noted that the anger of the appellants was not voluntary,
rather it is the out come of the mischievous act of the deceased person
which caused grave and sudden provocation to the appellants.

The deceased person had ample opportunity to escape from the place of
quarrel because he was neither tied nor tightly hold by the appellants.
Even at the time of biting, he was not caught hold by the appellants. He
was completely free during the entire occurrence. But as the deceased is

ii. Whether the act done by the Appellants was in furtherance of common
intention or not?
iii. Whether the person is died due to the hit and blow of Appellants or due
to medical negligence ?
iv. Whether any legal damage was caused to Appellant, which is a direct
result of the Respondent’s wrongful act?