MEMORIAL ON BEHALF OF THE RESPONDENT

Issue 3 – Whether the accused Zimbu is entitled to benefit of Exception 1 to Section 300 of the
SVKM’S
Kapucha Penal Jitendra Chauhan College of Law – Intra Moot Court Competition
Code, 1860?

(February 21 – 22, 2023)

Team Code: 16 R

BEFORE THE HIGH COURT OF MAPULA

MR. ZIMBU

(APPELLANT)

v.

STATE OF DHARMASTHAN

(RESPONDENT)

FOR OFFENCES CHARGED UNDER SECTION 302 OF

THE KAPUCHA PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE HIGH COURT JUDGE

MEMORANDUM ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

1. TABLE OF AUTHORITIES ………………………………………………………………3

2. LIST OF ABBREVIATIONS ………………………………………………………….…. 5

3. STATEMENT OF JURISDICTION………………………………………………………. 6

4. STATEMENT OF FACTS………………………………………………………………… 7

5. ISSUE RAISED.……………………………………………………………………….…. 10

6. SUMMARY OF ARGUMENTS…………………………………………………………. 11

7. ARGUMENTS ADVANCED……………………………………………………………. 13

i. ISSUE 1……………………………………………………………………………... 13

ii. ISSUE 2…………………………………………………………………………...… 17

iii. ISSUE 3……………………………………………………………………………... 18

8. PRAYER ………………………………………………………………………………… 22

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TABLE OF AUTHORITIES

[A.] CASES

1. Rakesh vs. The State of Maharashtra (10.02.2023 - BOMHC) : MANU/MH/0466/2023

2. The State vs. Laikhan Pradhan and Ors. (30.08.1955 - ORIHC) : MANU/OR/0034/1956

3. State of Andhra Pradesh v Rayavarapu Punnayya, (1976) 4 SCC 382 [LNIND 1976 SC
331] .

4. KM Nanavati v State of Maharashtra, AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 Cr
LJ 521(SC).

5. Prasad Pradhan and Ors. vs. The State of Chhattisgarh (24.01.2023 - SC) :
MANU/SC/0074/2023

6. Viscount Simon in Mancini v. Director of Public Prosecutions, 1941(3) All E.R 272 (HL)

[B.] STATUES

1. Indian penal code, 1860 (Act 45 of 1860)

2. Indian evidence act, 1872 (Act 45 of 1872)

3. Code of criminal procedure, 1973 (Act 2 of 1973)

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[C.] BOOKS

1. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed (2011)

2. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed (2006)

3. Sarkar, Law of Evidence, (13th Ed 1990)

4. Gupte and Dighe, Criminal Manual, (7th Ed, 2007)

5. Kelkar, R.V. Criminal Procedure, (5th Ed 2011)

6. Lal, Batuk, The Law of Evidence, (18th Ed.2010)

7. Princep’s Commentary on the Code of Criminal Procedure, 1973 (18th ed 2005)

8. Kathuria, R.P Supreme Court on Criminal Law, 1950-2022, (6th Ed.2002)

9. K.D. Gaur, Commentary on the Indian Penal Code, 3 rd Edition, (2018)

[D.] WEBSITES

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

4. http://www.scconline.co

5. https://legal.thomsonreuters.com/en/westlaw

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LIST OF ABBREVIATIONS

AIR All India Reporter

SC Supreme Court

SCR Supreme Court Reporter

IPC Indian Penal Code

Cr.P.C. Code of Criminal Procedure

IC Indian Cases

Cri.LJ Criminal Law Journal

DW Defense Witness

PW Prosecution Witness

SCC Supreme Court Cases

SCJ Supreme Court Journal

Sec. Section

v. Versus

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STATEMENT OF JURISDICTION

The High Courts in India draw their appellate jurisdiction from Article 226 and Article 227 of the
Constitution of India. Article 226 confers upon the High Courts the power to issue writs, orders,
or directions to any person or authority, including the government, within their territorial
jurisdiction, for the enforcement of fundamental rights or for any other purpose. Article 227
confers upon the high courts the power of superintendence over all subordinate courts and tribunals
within their territorial jurisdiction. These provisions give the High Courts a wide range of powers
to ensure justice is done and protect the rights of citizens.

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STATEMENT OF FACTS

1) Mr. Zimbu was the Vice Admiral of the Naval Staff – the second highest ranking naval officer
in the country of Kapucha. He married Ms. Amelia in the year 2012 before the Sub-Registrar of
the port city of Mapula. Thereafter they settled down in the Naval Base in Mapula and within two
years they were blessed with one son.

2) Mapula was strategically located from a defence perspective as it was the nearest port from
which Kapucha could keep an eye on its hostile neighbour country - Zapucha.

3) Over a period of time Mr. Zimbu got very busy with his official duties that required him to work
until late at night in the Naval Base office. He would reach home quite late on weekdays and would
even have to work on weekends at times.

4) On April 1, 2016 he was promoted with immediate effect to the post of Admiral of Naval Staff
(the highest ranking naval office of Kapucha) and that he was required to shift to the Strategic
Naval Base in the capital city of Bapula within a week’s time to take over his new responsibilities.

5) Mr. Zimbu and his wife Mrs. Amelia were very happy with his promotion that made him the
highest ranking officer in the Navy. However, they felt that it would not be appropriate to abruptly
disturb the educational set-up of their son as he was already enrolled at a Naval School in Mapula.
Hence, they decided that Mrs. Amelia would stay back with their son at the Naval Base in Mapula
and Mr. Zimbu would immediately shift to the Strategic Naval Base in the capital city of Bapula.
They agreed that Mr. Zimbu would come to the Naval Base in Mapula once every month to spend
time with his family.

6) Mr. Zimbu shifted to the Strategic Naval Base of Bapula and assumed his responsibilities as
Admiral of Naval Staff w.e.f. April 6, 2016. Thereafter, over the next one year, he would come
home once every month to meet his family. During each trip he ensured that he would spend at
least a few days’ time with his family before returning to the Strategic Naval Base in Bapula.

7) During his visit to his family in the month of May 2017, Mr. Zimbu informed his wife that he
would not be able to come to meet his family in the next month of June 2017 as he would be busy
on a naval mock drill exercise off the coast of the city of Bapula. The naval mock drill exercise
started in mid-June 2017 and was expected to continue until the end of June 2017. However, the

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naval mock drill exercise went off very well and met all the parameters of the event which meant
that it concluded within 10 days’ time. Mr. Zimbu realized that he could utilize the remaining few
days of the month to plan a short trip to Mapula to meet his family. However, he wanted to surprise
his family.

8) Accordingly, Mr. Zimbu reached his home in the Naval Base at Mapula at 11 PM on June 26,
2017 with a bouquet of flowers and quietly entered the house to proceed towards his son’s room
and noticed that he was fast asleep. Then he quietly opened the bedroom door but was shocked to
notice that his wife was sleeping on the bed in the company of another man. He was enraged but
he quietly walked out of the house without making any noise. He walked to the Naval Office at
Mapula that was at a walking distance of 10 minutes. He went to the Arms Store in the Naval
Office and asked the Stores Officer to give him a semi-automatic revolver along with four bullets
and promised that he would return the same the next morning. Then he walked back home, flung
open the bedroom door and started yelling to his wife (who suddenly woke up from her sleep due
to the noise of the bedroom door being flung open) – “Why did you cheat on me???...What was
my mistake???”

9) Thereafter, the facts as submitted by the Prosecution were as follows- “Mr. Zimbu then
immediately looked at his wife’s male partner in rage, pulled out the semi-automatic revolver and
pumped three bullets into his head from point blank range. His wife’s male partner immediately
succumbed to his injuries. Mr. Zimbu then left the house, went to the nearest police station,
surrendered himself and narrated the entire incident in detail. He was immediately arrested and in
due course of time was presented before the Sessions Judge for facing a charge under Section 302
of the Kapucha Penal Code, 1860 [extract of Section 302 of the Kapucha Penal Code, 1860 is
annexed as Annexure 1 herein below].

10) The defence version, as disclosed in the statement made by Mr. Zimbu before the Sessions
Court under Section 313 of the Code of Criminal Procedure, 1973 of Kapucha [extract of Section
313 of Code of Criminal Procedure, 1973 of Kapucha is annexed as Annexure 2 herein below].
His deposition in the said Court mentioned the details as mentioned herein above with a small
modification with respect to the facts as submitted by the Prosecution with respect to Mr. Zimbu’s
return visit to his house on the fateful night of June 26, 2017 – “Mr. Zimbu had wrapped the semi-
automatic revolver in a black plastic bag before entering his house again on the fateful night of

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June 26, 2017. Thereafter he called his wife’s male partner a filthy swine and asked him – “Now
that you have broken the purity of my marital life, I cannot stay with my wife. Will you marry her
and take care of my son?” to which the said person immediately retorted – “Am I to marry every
woman I sleep with?" and immediately dashed to the polythene bag. There was a struggle between
Mr. Zimbu and the person and during the course of the struggle three shots were fired which hit
the person resulting in his death.”

11) The Constitution of Kapucha and all the laws (including the substantive and procedural
criminal laws and the laws of evidence) of Kapucha are in pari materia with the Indian Constitution
and the laws (including the substantive and criminal laws and the laws of evidence) of India.

12) The Sessions Court convicted Mr. Zimbu under Section 302 of the Kapucha Penal Code, 1860.
Mr. Zimbu decided to approach the Hon’ble High Court to appeal against this sentence. The case
is scheduled for the next hearing on February 21st 2023.

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ISSUES RAISED

1. WHETHER THE SESSIONS COURT ERRED IN CONVICTING THE ACCUSED

ZIMBU WITHOUT TAKING INTO ACCOUNT THE LACK OF EVIDENCE AGAINST
HIM?

2. WHETHER THE ACCUSED ZIMBU IS GUILTY OF COMMISSION OF THE

OFFENCE AS DEFINED UNDER SECTION 302 OF THE KAPUCHA PENAL CODE,
1860?

3. WHETHER THE ACCUSED ZIMBU IS ENTITLED TO BENEFIT OF EXCEPTION 1

TO SECTION 300 OF THE KAPUCHA PENAL CODE, 1860?

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SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE SESSIONS COURT ERRED IN CONVICTING THE ACCUSED

ZIMBU WITHOUT TAKING INTO ACCOUNT THE LACK OF EVIDENCE AGAINST
HIM?

The submission respectfully requests the Hon'ble Court to uphold the Sessions Court's verdict and
find Mr. Zimbu guilty under Section 302 of the Kapucha Penal Code. The evidence clearly
establishes that the accused had both motive and intent to carry out the attack on Mr. D'Souza,
who was unarmed and defenceless, and the shots were impeccably aimed towards his head. Mr.
Zimbu's actions were premeditated and deliberate, fulfilling all the conditions of murder under
Section 300. Justice must be served for the victim, their loved ones, and society.

ISSUE – 2

WHETHER THE ACCUSED ZIMBU IS GUILTY OF COMMISSION OF THE OFFENCE

AS DEFINED UNDER SECTION 302 OF THE KAPUCHA PENAL CODE, 1860?

It is humbly submitted that Mr. Zimbu has been found guilty of committing murder under Section
300 of the Kapucha Penal Code, which corresponds to culpable homicide of the first degree. As
per Section 302 of the Indian Penal Code, he is liable to be punished with death or imprisonment
for life and a fine. The analysis and identification of specific features distinguishing the various
degrees of murder, as done by the Supreme Court of India in the case of State of A.P. v. R.
Punnayya, underscores the importance of ensuring that the punishment is proportionate to the
gravity of the offence, and serves as a deterrent to future criminal behaviour while providing justice
to the victim and their loved ones. Mr. Zimbu's premeditated and deliberate actions resulting in
the fatal consequences, necessitate the Sessions Court's verdict to be upheld for the greater good
of society.

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ISSUE – 3

WHETHER THE ACCUSED ZIMBU IS ENTITLED TO BENEFIT OF EXCEPTION 1 TO

SECTION 300 OF THE KAPUCHA PENAL CODE, 1860?

In this submission to the Hon'ble Court, the speaker argues that the accused, Mr. Zimbu, should
not be entitled to the benefit of Exception 1 to Section 300 of the Kapucha Penal Code. The
evidence presented shows that Mr. Zimbu's actions were calculated and premeditated, and there is
nothing about the events that could be attributed to provocation. Additionally, given the unequal
power dynamics at play, it is inconceivable that the unarmed victim, Mr. D'Souza, could have
provoked Mr. Zimbu, who was a highly trained and top-ranking naval officer of the country. The
speaker urges the Court to deny Mr. Zimbu the benefit of Exception 1, as it should be read in
conjunction with the relevant provisos.

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ARGUMENTS ADVANCED

ISSUE – 1

WHETHER THE SESSIONS COURT ERRED IN CONVICTING THE ACCUSED

ZIMBU WITHOUT TAKING INTO ACCOUNT THE LACK OF EVIDENCE AGAINST
HIM?

It is humbly contended that the Sessions Court's verdict of finding Mr. Zimbu guilty under Section
302 of the Kapucha Penal Code was sound and just. The evidence presented in the case clearly
establishes that the accused had both the motive and the intent to carry out the fatal attack on the
victim, Mr. Peter D'Souza.

Here the fact that Mr. Zimbu murdered the Late Mr. D’Souza is not in contention. The accused
undeniably accepts his culpability. The incident on the night of June 26th, 2017, saw the accused,
armed with a semi-automatic revolver, shoot Mr. D'Souza three times at point-blank range. The
victim was unarmed and defenceless, making the attack all the more heinous. The impeccable aim
of the shots towards the victim's head, a vital organ, clearly portrays Mr. Zimbu’s intent to murder
the deceased. It is humbly submitted that the alleged offence falls under sub-clause (1) of Section
300 which reads as under:

“culpable homicide is murder, if the act by which the death is caused is done with the intention of
causing death”

In the case of Rakesh v. The State of Maharashtra 1, the fact that the accused assaulted the deceased
using a deadly weapon (a knife), and stabbed the deceased fatally in the chest, which is a vital
organ, with a single blow is an established fact.

The prosecution's evidence indicated that the accused deliberately chose to use a knife as a weapon
and called the victim back to stab him in the chest, demonstrating premeditation and intention to
cause harm. The injuries sustained by the victim were not accidental, as “an injury sustained by

1
Rakesh vs. The State of Maharashtra (10.02.2023 - BOMHC) : MANU/MH/0466/2023

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the deceased cannot be said to be inflicted as a matter of chance while grappling with each other”,
and ruled out the possibility of grave and sudden provocation as a defence. The court found the
accused guilty under Section 300 of the Indian Penal Code, as the prosecution was able to establish
the case beyond reasonable doubt. The trial court’s sentence of life imprisonment u/s. 302 was
upheld.

Drawing parallels with Rakesh v. The State of Maharashtra 2, it is apparent that the accused Mr.
Zimbu is far more culpable in terms of the degree of intent. While both cases involve premeditated
acts of violence resulting in the death of the victim, the evidence in the present case clearly
indicates that Mr. Zimbu intentionally chose to use a deadly weapon, and shot the deceased three
times in the head ensuring his demise, leaving absolutely nothing to chance. These actions
demonstrate a higher level of culpability and malice aforethought than in Rakesh v. The State of
Maharashtra3. Therefore, it is important for the court to consider the severity of the crime
committed and impose an appropriate punishment that reflects the seriousness of the offence.

It is humbly contended that the Hon’ble Sessions Court’s judgment, to not entitle the accused, the
defence of Exception 1 to Section 300 is firmly rooted in judicial precedent. While this is discussed
at length in the 3rd contention, this counsel would like to touch upon the subject so that the Sessions
Court’s verdict of convicting Mr. Zimbu of committing murder u/s. 300 is on firmer footing.

Exception (1) to Section 300 which reads as under:

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.

Exception 1 suggests that the victim's actions must have been severe enough to provoke a reaction
that ultimately led to their death.

In the State v. Laikhan Pradhan & Ors4 (hereinafter referred to as Laikhan), it was contended, If
indeed the circumstances in which the offence was committed indicate that there was sufficient
time for the passion of the accused to cool down and "that reason had in fact resumed its functions

2
Ibid at 13
3
Ibid
4
The State vs. Laikhan Pradhan and Ors. (30.08.1955 - ORIHC) : MANU/OR/0034/1956

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before the fatal blow was given, or the last act was committed which led to the death of the man,
it cannot come under Exception 1.

Furthermore, it is now a well-established legal principle that the type of provocation must bear a
proper and reasonable relationship to the manner in which the accused reacted.

I kindly submit some definitions given by legal experts that explain the concept of grave and
sudden provocation, in order to enhance clarity and comprehension.

"Grave and sudden provocation means only provocation which is very grave and which is also
sudden. The word 'grave' does not mean that the provocation must be such as to deprive a
reasonable man of self-control, but the word 'sudden' means that it must be such as to deprive a
reasonable man of his power of self-control, the time during which such provocation lasts must be
so short that no reasonable man can expect to master his passion and that the person provoked
must act on the impulse of the moment." - Justice B.K. Mukherjea

"In order to amount to grave and sudden provocation it must be of such a nature as to be capable
of depriving a reasonable man of his self-control and must occur in such circumstances that the
accused cannot reasonably be expected to cool down before he is driven by the provocation to the
commission of the act." - Justice A.N. Ray

After examining the legal definitions of grave and sudden provocation, it is apparent that the
actions of the deceased, Mr. D'Souza, were not the direct cause of his death. On the night of June
26th, 2017, the accused, Mr. Zimbu, carried out a premeditated and intentional plan to murder Mr.
D'Souza. Therefore, Mr. D'Souza's actions cannot be considered as grave provocation, and the
responsibility for his death lies solely with the accused.

As contended in Laikhan, the desire for revenge or sudden outbursts of anger are not enough to be
considered as provocation. In fact, if someone consciously formulates a desire for revenge, it
means that they did not experience a sudden loss of self-control which is the essence of
provocation. Therefore, circumstances that induce a desire for revenge are inconsistent with
provocation.

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There are two important things that the law considers when examining provocation. Firstly,
whether there was sufficient time for the individual to cool down and regain control of their reason.
This is why most cases of provocation involve sudden quarrels or sudden blows that are inflicted
with an implement that is already in the hand or being picked up. These situations leave no time
for reflection, making it difficult for the individual to regain control of their emotions.

Another important consideration in determining whether provocation has occurred is the nature of
the retaliation. The mode of resentment must have a proper and reasonable relationship to the type
of provocation that was given. For example, if someone is attacked with fists, they may respond
with fists, but using a deadly weapon in retaliation would not be considered an appropriate
response. This factor is crucial to bear in mind when examining the question of provocation.

When we contrast that with Mr. Zimbu’s actions in this case, it becomes abundantly apparent why
the accused is not entitled to Exception 1 to 300.

This counsel therefore concludes that the Hon’ble Sessions Court’s judgment was faultless and the
conviction u/s. 302 must be upheld.

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ISSUE – 2

WHETHER THE ACCUSED ZIMBU IS GUILTY OF COMMISSION OF THE OFFENCE

AS DEFINED UNDER SECTION 302 OF THE KAPUCHA PENAL CODE, 1860?

It is submitted that as from the above conspectus it is clear that Mr. Zimbu is guilty of committing
murder u/s. 300, he must be punished u/s 302 which reads as under:

“Whoever commits murder shall be punished with death, or imprisonment for life, and shall also
be liable to fine.”

In the case of State of A.P. v. R. Punnayya5, the Supreme Court of India identified specific
distinguishing features among the different degrees of murder. This was done with the objective
of ensuring that the severity of punishment corresponds to the gravity of the crime committed.
According to the Indian Penal Code (IPC), there are three degrees of culpable homicide, with
murder being the most severe offence, also referred to as culpable homicide of the first degree and
defined in Section 300 of the IPC.

The Court's analysis and identification of specific features distinguishing the various degrees of
murder highlights the importance of ensuring that the punishment is proportionate to the gravity
of the offence. This helps to ensure that the punishment serves as a deterrent to future criminal
behaviour while also providing justice to the victim and their loved ones.

In light of the evidence presented, Mr. Zimbu fulfills all the necessary conditions of murder under
Section 300 (1) of the Kapucha Penal Code, i.e., culpable homicide of the first degree, and is liable
to be punished under Section 302.

His actions were premeditated and deliberate, and the consequences of his actions were fatal. In
conclusion, I respectfully request this Hon'ble Court to uphold the Sessions Court's verdict and the
punishment imposed by the latter should not be interfered with. The law must be upheld, and
justice must be served for the victim and their loved ones, as well as for the greater good of society.

5
(1976) 4 SCC 382 [LNIND 1976 SC 331]

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ISSUE – 3

WHETHER THE ACCUSED ZIMBU IS ENTITLED TO BENEFIT OF EXCEPTION 1 TO

SECTION 300 OF THE KAPUCHA PENAL CODE, 1860?

It is respectfully submitted to this Hon'ble Court that the accused, Mr. Zimbu, is not entitled to the
benefit of Exception 1 to Section 300 of the Kapucha Penal Code, as it should be read in
conjunction with the relevant provisos. In particular, I draw the Court's attention to the 1 st and 3rd
provisos to Exception 1.

Exception 1. — GRAVE & SUDDEN PROVOCATION AS MITIGATIONS

“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.”

ESSENTIALS: Essentials mentioned in the Code, states the following conditions must be
complied with in order to invoke the benefit of this cause:

1) The deceased must have given provocation to the accused

2) The provocation must be grave

3) The provocation must be sudden

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4) The offender, by reason of the said provocation, should have been deprived of his power
of self- control.

5) The accused 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.

The said ingredients are not complied with in the said disputed matter.

Again, in a very recent judgement of Supreme court, on the question of whether the facts
of this case are covered by the first exception to Section 300, i.e., that the
accused/appellants did what they were accused of (which is to attack and inflict grave
injuries that led to the death of Vrindawan), because of their loss of self-control, on account
of a grave and sudden provocation – the answer must be the same, which is that the
provision (Exception 1 to Section 300) cannot be attracted. Apart from a long-standing pre-
existing dispute, what caused “sudden” provocation to the appellants, has not been shown
by them. Neither did they lead any evidence, to fall within Exception 1, nor did the
evidence on record substantiate such a contention. Speaking of what is grave and sudden
provocation, this court in K.M. Nanavati v. State of Maharashtra6 explained the standard
of reasonableness for applying the “grave and sudden” provocation, in the following
manner7:

Drawing parallel to the landmark judgement in K.M. Nanavati v State of

Maharashtra(Supra), the Supreme Court, extensively discussed the law relating to
provocation and observed a reasonable man’s test which stated below some important and
detailed essentials:

“The fatal blow should be clearly traced to the influence of passion arising from the
provocation and not after the passion has cooled down by lapse of time, or otherwise giving
the accused room and scope for premeditation and calculation.”

6
AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 Cr LJ 521(SC).
7
Prasad Pradhan and Ors. vs. The State of Chhattisgarh (24.01.2023 - SC) : MANU/SC/0074/2023

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Hon’ble court rejected the plea of grave and sudden provocation advanced by the accused
in K.M.Nanavati v. State of Maharashtra(Supra) While rejecting the plea of grave and
sudden provocation advanced by the accused, the court held that for the application of
Exception 1 to section 300, IPC, it is essential that the act which caused death should have
been done during the continuance of the state of mind to temporary loss of self-control
caused by the provocation, and before there was time for passion to cool and for reason to
regain dominion over the mind. No doubt, accused momentarily lost self-control when his
wife confessed to him her illicit intimacy with the deceased, his subsequent conduct clearly
indicated that he had not only regained his self-control, but was capable of actually
planning future action. He drove his wife and children to a cinema, left them there, went to
his ship, took a revolver on a false pretext loaded it with cartridges, did some official work,
went to the office of the victim and, not finding him there, went to his flat and straight into
his bedroom where he shot him dead The time lapse between his leaving his house and the
time of the murder was three hours this was sufficient time for passion to cool down and
for self-control to be regained, even if he had not regained it earlier , that is during the time
lapse between his wife’s confession and putting his plan of action against the deceased into
effect.

As previously mentioned, the evidence produced in the contested issue plainly establishes very
comparable circumstances - that Mr. Zimbu's conduct on June 26th, 2017 were intentional and
premeditated. Mr. Zimbu decided not to react immediately after discovering Mr. D'Souza in bed
with his wife, indicating a lapse of time between the said provocation and course of action/offence
when he went out quietly to procure the murder weapon and promised the Stores Officer at the
Arms Store in the Naval Office about returning the revolver by the next morning, fully aware that
Mr. D'Souza would not live to see another day.

Facts stated above clearly display the Mens rea & Actus reus of Mr. Zimbu, the accused had ample
time to consider his action and was not provoked suddenly, the use of deadly weapon to attack the
victim- on the vital part consecutively three times, clearly displays the intention of the accused,
the said act shows that actions were excessive and unreasonable and that he intended to kill the
victim.

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Illustration:

A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

In K.M. Nanavati, the court also made reference to “The scope of doctrine of provocation” as
asserted by Viscount Simon in Mancini v. Director of Public Prosecutions8, which states thus:

“Not all provocation will commute the crime of murder to that of manslaughter. He further states
that the provocation shall be such as to temporarily deprive the offender of his power of self-
control and it is the result of which he commits the unlawful act which causes death.”

Under these conditions, nothing about the events before the murder could be attributed to
provocation, as required under the 1st Exception to Section 300. Even if there was provocation, it
was not serious enough to warrant the accused's behaviour, given that he was a highly ranked
Naval Officer who was expected to act more prudently and logically than civilians. In addition to
the prior submission, I would want to underline that at the time of the incident, Mr. D'Souza was
entirely defenceless and unarmed. Under the circumstances, it is unfathomable that he could have
induced Mr. Zimbu, a highly skilled and high-ranking Naval Officer in the country, to perpetrate
such a heinous crime.

It is critical to recognise the power dynamics at work in this context. Mr. Zimbu had an unfair edge
over Mr. D'Souza due to his position of great authority and influence. Being a citizen, the victim
had no way of defending himself against the accused, who was well-armed with a lethal weapon
and the ability to use it.

As a result, it is critical that the Court rejects any argument or allegation that Mr. D'Souza
encouraged the accused into perpetrating this murder.

In view of the foregoing, I sincerely request that this Hon'ble Court deny Mr. Zimbu the benefit of
Exception 1 to Section 300 of the Kapucha Penal Code and condemn him under Section 302 of
the Kapucha Penal Code, imposing the appropriate sentence for his determined and premeditated
crime.

8
Viscount Simon in Mancini v. Director of Public Prosecutions, 1941(3) All E.R 272 (HL)

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 MEMORIAL ON BEHALF OF THE RESPONDENT

PRAYERS

In light of the issues raised, arguments advanced, and authorities cited, the counsel for the
Respondent humbly prays the Hon’ble Court:

1) The appeal filed by the accused is frivolous, baseless and unreasonable hence the same
must be dismissed.

2) The judgement given by the Hon’ble Sessions Court must be upheld and affirmed in respect
to the accused.

3) Convict, the accused Mr. Zimbu under section 302 of the Kapucha Penal Code.

4) Declare, the highest amount of punishment, liable to fine, without any concession, thereby
establishing a deterring example to precedents.

AND PASS ANY ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE COURT
MAY DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is humbly prayed.

16R
Counsels for the Respondents.

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