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BEFORE

THE HON’BLE COURT OF ADDITIONAL SESSIONS JUDGE

MOHALI

2023

UNDER SECTION 302 READ WITH SECTION 149 OF INDIAN PENAL CODE

IN THE MATTER OF

THE STATE OF PUNJAB VERSUS GOPINATH & ORS.

THE STATE OF PUNJAB ................................................................................COMPLAINANT

V.

GOPINATH…............................................................................................................ DEFENDANT NO. 1

KARAN….................................................................................................................. DEFENDANT NO. 2
MADHUKAR…......................................................................................................... DEFENDANT NO. 3
FRIEND ONE…......................................................................................................... DEFENDANT NO. 4
FRIEND SECOND…................................................................................................. DEFENDANT NO. 5

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TABLE OF CONTENTS

1) Index of abbreviation..............................................................................PG NO.- 3

2) Index of authorities……………………………………………………..PG NO.-4
3) Statement of jurisdiction……………………………………………....PG NO.-7
4) Statement of facts.................................................................................... PG NO-8
5) Statement of issues……………………………………………………....PG NO.-10
6) Summary of arguments………………………………………………. PG NO.-11
7) Written pleadings……………………………………………………... PG NO.-13
8) Prayer…………………………………………………………………....PG NO.-17

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INDEX OF ABBREVIATION

Cr. Criminal
Vs. Versus
Up Uttar Pradesh
Gov. Government
Scc Supreme court case
& And
@ At the rate
Air All India reporter
Fir First important report
Hon’ble Honorable
Ors. Others
Pg. Page
Uoi Union of India
Anr. Another
Mrs. Misses
i.l.r Indian law reporter
Re. Reference
Sd/ Signed

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Index of authorities

Supreme Court cases

1) Vishwanath vs. The state of Uttar pradesh,1959

2) Nashik vs, State of Maharastra, 1993

STATUES

1) The Indian Penal Code, 1860

WEBSITES

1. WWW.SUPREMECOURTCASES.COM

2. WWW.INDIANKANOON.COM

3. WWW.MANUPATRA.COM

4. WWW.LIVELAW.COM

5. WWW.FIRSTPOST.COM

6. WWW.LEGALBLOG.IN

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BOOKS AND ARTICLES

Ratanlal & Dhirajlal: The Indian penal code

Universal’s Bare Act: The Indian penal Code

K.D. Gaur: Commentary on the Indian penal Code

K.D. Gaur: A Textbook on the Indian penal Code

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ARTICLES

1) http://legalserviceindia.com/legal/article-7177-murder-section-302-under-ipc

2) https://blog.ipleaders.in/section-149-ipc/

3) https://www.legalserviceindia.com/article/l470-Private-Defence

4) https://lawrato.com/indian-kanoon/ipc/section-100

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STATEMENT OF JURISDICTION

The counsels representing the defendant humbly approach before the Hon‘ble COURT OF
ADDITIONAL SESSIONS JUDGE, MOHALI the memorandum under Section 302 Read with
Section 149 of Indian Penal Code in which the Hon‘ble court has the jurisdiction.

The present memorandum sets forth the facts, contentions and arguments in the present case.

The defendant humbly approach before the Hon‘ble COURT OF ADDITIONAL SESSIONS
JUDGE, MOHALI.

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STATEMENT OF FACTS

For the sake of brevity and convenience of the hon‘ble court the facts of the case are summarized
as follow

i. The deceased, Gopal was married to Rama in Feb 2010. Gopinath, father of Rama and
her two brothers Karan and Madhukar resided in a quarter. Gopal's sister was married
to Banarasi and couple resided near Gopinath's quarter.

ii. Gopal had been unemployed for quite some time and his unemployment led to frequent
quarrels between the couple. Later, in Dec 2010, the Rama shifted to the house of her
Father and Gopal shifted to his sister's home.
iii. On getting a job in May 2016, Gopal went to Gopinath's house to bring his wife back, so
that they could set up their own house. Rama refused to go with him.

iv. Gopal, accompanied by Banarsi and his two sons went to Gopinath's house. Gopal went
there to try to convince Rama that she should come with him. Meanwhile, Gopinath came
out of the house and Banarasi tried to persuade him to sent his daughter to her in-laws'
house. Gopinath refused to comply. Karan, Madhukar and their two friends were also
present on the spot.

v. After a few minutes, all of them saw that Gopal was dragging out a very reluctant Rama
out of the house and tries to abduct her. Somehow, Rama caught hold of the door and
there was a tug of war between them.

vi. Gopinath shouted that Gopal had gone and he should be taught a lesson. At
this, Madhukar picked up a lathi and gave a blow to Gopal which, however, did not hit
him The friends of Karan also tried to hold Gopal's limbs.

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vii. At this point of time, Karan went to the kitchen and brought a knife and stabbed Gopal.
The knife penetrated Gopal's heart rendering him unconscious.

viii. He was immediately taken to the hospital by Banarasi and his sons. On reaching hospital,
Gopal was declared 'brought dead'.

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STATEMENT OF ISSUES

ON APPLICABILITY

I. WHETHER SECTION 302 OF INDIAN PENAL CODE IS

APPLICABLE ON DEFENDANT NO. 1,3,4 & 5?

ON MERITS

II. WHETHER RIGHT OF PRIVATE DEFENCE OF PERSON UNDER

SEC. 100 FIFTHLY OF INDIAN PENAL CODE EXTENDED TO THE
CAUSING OF DEATH, AS GOPAL HAD ASSAULTED HIS WIFE
WITH THE INTENTION OF ABDUCTING HER?

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SUMMARY OF ARGUMENTS

ON MAINTAINABILITY

I. WHETHER SECTION 302 OF INDIAN PENAL CODE IS APPLICABLE ON

DEFENDANT NO. 1,3,4 & 5?

The Essential Element of Sec 302, that Person to be charged U/S 302 for Committing a
Murder must have Intention to Cause Death of Person or Body Injury as likely to cause
death , but in this case from the stated fact the Defendant No. 1,3,4 & 5 doesn’t seems to have
any intention to commit murder and they don’t have Knowledge that karan (Defendant no. 2)
went to brought a knife and stabbed Gopal. So the Complaint u/s 302 is not maintainable
before the Hon’ble Court.

ON MERITS

II. WHETHER RIGHT OF PRIVATE DEFENCE OF PERSON UNDER SEC.

100 FIFTHLY OF INDIAN PENAL CODE EXTENDED TO THE CAUSING OF
DEATH , AS GOPAL HAD ASSAULTED HIS WIFE WITH THE INTENTION OF
ABDUCTING HER?

Section 100 states that, when the right of private defence of the body extends to causing death.—The
right of private defence of the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the assailant, if the offence which
occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

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(Fifthly) — An assault with the intention of kidnapping or abducting.

Section 100 fifth clause, must be given full effect according to its plain meaning. Therefore, when
the karan’s (defendant no. 2) sister was being abducted, even through by her husband, and there was
an assault on her and she was being compelled by force to go away from her father’s place, the
defendant would have the right of private defence of the body of his sister against an assault with the
intention of abducting her by force and that right would extend to the causing of dealth.

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WRITTEN PLEADINGS

1) WHETHER SECTION 302 OF INDIAN PENAL CODE IS APPLICABLE ON

DEFENDANT NO. 1,3,4 & 5?

The Essential Element of Sec 302, that Person to be charged U/S 302 for Committing a
Murder must have Intention to Cause Death of Person or Body Injury as likely to cause
death , but in this case from the stated fact the Defendant No. 1,3,4 & 5 doesn’t seems to have
any intention to commit murder and they don’t have Knowledge that karan (Defendant no. 2)
went to brought a knife and stabbed Gopal. So the Complaint u/s 302 is not maintainable
before the Hon’ble Court.

In a Revelant Case law, Nashik vs State of Maharastra , 1993 (annexure-I) Bombay

High court has given decision on appeal that, being assaulted by the deceased the
appellant did not intend to cause the murder of the deceased. The Courts above should
not have convicted the appellant under Section 302 IPC and there is one other case
Vishwanath vs. the state of Uttar Pradesh 1959 (annexure- II), the facts of that is
Similar with our case and in that case Allahabad High Court was of opinion that murder
without intention to commit is not convicted u/s 302 IPC .

For reference of the above said case, we hereby annexed the case law in (Annexure-I)
below:

Nashik vs State Of Maharashtra on 23 March, 1993 (ANNEXURE- I)

1. This appeal is directed against Judgment dated October 12, 1982 passed by the Division Bench of Nagpur Bench
of Bombay High Court in Criminal Appeal No. 247 of 1980 affirming the conviction of the appellant
under Section 302 of the Indian Penal Code and sentence to undergo imprisonment for life.

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2. The prosecution case in short is that the deceased Ganpat was undergoing sentence and was released on parole.
On November 21, 1979, at about 4.30 p.m., the deceased Ganpat visited the shop of Shaligram (P.W.I) and asked
for boiled eggs. Opposite to the shop of Shaligram, a shop was run by Girijashankar and Anil (P.W.2) in
partnership. While Ganpat was standing near the shop of Shaligram, accused Nashik came there armed with a knife
and he caught hold of the shirt collar of the deceased and abused him. Thereafter, a scuffling started between them.

Nashik was over-powered and made to fall on the ground by Ganpat. Nashik then shouted in the name of co-
accused Hamid for help.Hamid immediately rushed there with a knife and delivered a knife blow on the left thigh of
Ganpat. Being so disabled by the knife blow dealt by Hamid, Ganpat released the grip on Nashik. The
accused/appellant Nashik thereafter inflicted a strong blow on the stomach of Ganpat by the knife held by him and
Ganpat thereafter fell down. The accused/appellant Nashik ran away from the place
A girl named Kiran (P.W.4) who was the niece of Ganpat was present there and when she tried to obstruct, Nashik,
he brandished his knife which caused injury to her finger. The said girl then went to the Police Station and lodged
the report. The accused/appellant Nashik was arrested and the shirt and pant from his person were seized by the
police and such shirt and pant were stained with blood. One knife (Article 5) was found lying at a distance of 50 feet
from the thela of Shaligram and a pair of chappals were found in the thela of Shaligram. Such articles were also
seized by the police. Ganpat was rushed to the hospital but he succumbed to the injuries shortly thereafter.
According to the prosecution case, the said murderous assault was witnessed by Shaligram (P.W. 1), Anil (P.W. 2),
Kiran (P.W. 4) and Debasing (P.W. 5). The appellant denied his involvement in the case. The learned Sessions
Judge relied on the evidences of eye-witnesses and found the appellant guilty under Section 302 IPC and convicted
him and awarded a sentence of rigorous imprisonment for life so far as the co-accused Hamid was concerned, he
was convicted for the offence committed under Section 324 IPC and was sentenced to undergo rigorous
imprisonment for two years only. On appeal the High Court upheld the conviction and sentence of the appellant.
3. The learned Counsel contended that although the injury proved to be fatal, in the facts of the case, it is quite
apparent that the appellant did not intend to cause the murder of the deceased. It is the case of the prosecution that
when the appellant brandished a knife and held the collar of the deceased and abused him, the deceased being a
stout and stronger man, knocked the appellant and sat on his chest. It was only when Hamid the co-accused inflicted
a knife injury on the thigh of the deceased, he released the grip on the appellant. The appellant thereafter being
apprehensive of being assaulted by the deceased who was a notorious under-world hoodlum and a very strong man,
inflicted a knife injury in order to save himself but unfortunately such injury proved to be fatal and the deceased
died shortly thereafter. In the aforesaid circumstances, the Courts below should not have convicted the
appellant under Section 302 IPC. According to the learned Counsel for the appellant it was a pre-eminently a fit
case to convict the appellant under Section 304 Part I IPC. 

2) WHETHER RIGHT OF PRIVATE DEFENCE OF PERSON UNDER SEC. 100

FIFTHLY OF INDIAN PENAL CODE EXTENDED TO THE CAUSING OF DEATH , AS
GOPAL HAD ASSAULTED HIS WIFE WITH THE INTENTION OF ABDUCTING HER?

Section 100 states that, when the right of private defence of the body extends to causing death.—The
right of private defence of the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the assailant, if the offence which
occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—
(Fifthly) — An assault with the intention of kidnapping or abducting.

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Section 100 fifth clause, must be given full effect according to its plain meaning. Therefore, when
the karan’s (defendant no. 2) sister was being abducted, even through by her husband, and there was
an assault on her and she was being compelled by force to go away from her father’s place, the
defendant would have the right of private defence of the body of his sister against an assault with the
intention of abducting her by force and that right would extend to the causing of death.

In a Revelant Case law, Vishwanath vs. the state of Uttar Pradesh 1959 (annexure- II) Additional
Sessions Judge, Gorakhpur has given decision on appeal that, being assaulted by the deceased the
appellant had the right of private defence of person, and that this right extended even to the
causing of death as it arose on account of an assault on his sister which was with intent to abduct her.
He was further of opinion that more harm than the circumstances of the case required was not caused;
and therefore the appellant was also acquitted.

For reference of the above said case, we hereby annexed the case law in (Annexure-II)
below:

VISHWANATH VS. THE STATE OF UTTAR PRADESH 1959 (ANNEXURE- II)

This is an appeal by special leave against the judgment of the Allahabad High Court in a
criminal matter. The facts of the case, as found by the High Court, are no longer in dispute
and the question that is raised in this appeal is whether the appellant had exceeded the right of
private defence of person. The relevant facts for our purposes are these. Gopal deceased was
married to the sister of the appellant. The appellant and his father Badri were living in a
railway quarter at Gorakhpur. Gopal's sister was married to one Banarsi, who was also living
in another railway quarter nearby. Gopal had been living for some time with his father-in-law.
They did not, however, pull on well together and Gopal shifted to the house of Banarsi. Badri
persuaded Gopal to come back to his house but the relations remained strained and eventually
Gopal shifted again to the quarter of Banarsi about 15 days before the present occurrence
which took place on June 11, 1953, at about 10 p.m. Gopal's wife had continued to live with
her father as she was unwilling to go with Gopal. Her father Badri and her brother
Vishwanath appellant sided with her and refused to let her go with Gopal. Gopal also
suspected that she had been carrying on with one Moti who used to visit Badri's quarter.

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Consequently, Gopal was keen to take away his wife, the more so as he had got a job in the
local department some months before and wanted to lead an independent life.

On June 11, there was some quarrel between the appellant and Gopal about the girl; but
nothing untoward happened then and the appellant went back to his quarter and Gopal went
away to Bansari's quarter. Gopal asked Banarsi's sons to help him in bringing back his wife.
Banarsi also arrived and then all four of them went to Badri's quarter to bring back the girl.
On reaching the place, Banarsi and his two sons stood outside while Gopal went in. In the
meantime, Badri came out and was asked by Banarsi to let the girl go with her husband. Badri
was not agreeable to it and asked Banarsi not to interfere in other people's affairs. While
Badri and Banarsi were talking, Gopal came out of the quarter dragging his reluctant wife
behind him. The girl caught hold of the door as she was being taken out and a tug-of-war
followed between her and Gopal. -The appellant was also there and shouted to his father that
Gopal was adamant. Badri, thereupon replied that if Gopal was adamant he should be beaten
(tomaro). On this the appellant took out a knife from his pocket and stabbed Gopal once. The
knife penetrated into the heart and Gopal fell down senseless. Steps were taken to revive
Gopal but without success. Thereupon, Gopal was taken to the hospital by Badri and the
appellant and Banarsi and his sons and some others, but Gopal died by the time they reached
the hospital.

On these facts the Sessions Judge was of opinion that Badri who had merely asked the
appellant to beat Gopal could not have realised that the appellant would take out a knife
from his pocket and stab Gopal. Badri was, therefore, acquitted of abetment. The
Sessions Judge was further of opinion that the appellant had the right of private defence
of person, and that this right extended even to the causing of death as it arose on
account of an assault on his sister which was with intent to abduct her. He was further
of opinion that more harm than the circumstances of the case required was not caused;
and therefore the appellant was also acquitted

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PRAYER FOR RELIEF

IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED ABOVE,
THE DEFENDANT HUMBLY AND RESPECTFULLY REQUESTS THE HON’BLE ADDITIONAL
SESSIONS JUDGE (MOHALI) TO ADMIT THE FACTS, AND IN SO DOING, ADJUDGE AND
DECLARE THAT:

I. THE ALL THE DEFENDANTS(1 TO 5) STATED ABOVE ARE ACQUITTED AND

NOT BE CHARGED UNDER SECTION 302 AND 149 IPC.

AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT MAY DEEM
FIT IN THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD
CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL DUTY BOUND FOREVER
PRAY.

SD/-
COUNSELS FOR THE DEFENDANT

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