MADHUSUDAN LAW UNIVERSITY MOOT MEMORIAL

TABLE OF CONTENTS
LIST OF ABBREVIATIONS....................................................................................1

INDEX OF AUTHORITIES……………………………………………………………………..2

STATEMENT OF JURISDICTION.........................................................................3

STATEMENT OF FACTS.........................................................................................4

ISSUE RAISED............................................................................................................5

SUMMARY OF ARGUMENTS................................................................................6

ARGUMENTS ADVANCE........................................................................................7

ISSUE [1]. Whether the act of the appellant falls under the requisites

enumerated u/s 300 of IPC or not ?

ISSUE [2] Whether the punishment given by invoking section 326 of IPC, 1860

is justified ?

PRAYER....................................................................................................................8

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LIST OF ABBREVIATIONS

S.No Abbereviations Full Form

1 & And

2 AC Appeal cases

3 AIR All india report

4 Anr. Another

5 Art. Article

6 Const. Constitution

7 FIR First information report

8 HC High court

9 Hon’ble Honorable

10 Ltd. Limited

11 No. Number

12 Ors. Others

13 Props. Proposition

14 SC Supreme court

15 SCC Supreme court cases

16 Supl. Supplement

17 V. versus

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INDEX OF AUTHORITIES

CASES

1 Samuthtam alias Samudra Ranjan v. State of Tamil Nadu, (1997)1

2 Jagriti Devi v State of Himachal Pradesh (SC 2003 Cr Appeal 823)

3 'Willie (William) Slaney vs. The State of Madhya Pradesh (1955 SCR
(2)1140)
4 Virsa Singh's case

5 State of U.P. vs. Indrajeet Alias Sukhatha

6 Pritam Singh & Another v. State of Punjab

7 Atma Singh v. The State of Punjab

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TABLE OF STATUTES

1. Indian penal code, 1960

2. Indian Evidence Act,1872

3. The code of criminal procedure,1973

WEBSITE

1. https://indiankanoon.org/

2. https://www.lawfinderlive.com

3. http://www.advocatekhoj.com/

BOOKS

1 Criminal Procedure- R.V Kelkars’s

2 Criminal Law Cases And Materials- K.D Gaur

3 Commentary On The Indian Penal Code- K.D Gaur

4 The Indian Evidence Act – Dr V Nageswar Rao

5 The Indian Penal Code- Ratanlal & Dhirajlal

6 Indian Penal Code ( With The Criminal Law (Amendment) Act,

2018- S.N Mishra

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STATEMENT OF JURISDICTION

The appellants humble approach the hon’ble high court S. 374(2) of the code of criminal

procedure 1973, which reads as follows :

S.374. Appeals From Conviction

1. any person convicted on the trial held by a high court in its extraordinary original criminal

jurisdiction may appeal to the supreme court.

2. any person convicted on a trial held by a sessions judge or an additional sessions judge or

on a trial held by any other court in which a sentence of imprisonment fro ore then seven

years has been passed agnaist him or agnaist any other person convicted at the same trial may

appeal to the high court .

3. save otherwise provided in sub-section (2), any person,

a) convicted on a trial held by a metropolitan magistrate or assistant sessions

judge or magistrate of the first class, or of the second class, or

b) sentenced under section 325 , or

c) in respect of whom an order has been made or a sentence has been passed

under section 300 by any magistrate, may appeal to the court,

It is most humbly submitted that this Hon’ble Court has jurisdiction over the matter.

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STATEMENT OF FACTS

1. The accused Ramesh was a resident of Jajpur and worked as a broker in the road
transport office, Jajpur. The deceased Raghav belong to a Zamindar family and owned
several plots of land in the village of Jajpur. The prosecution case is that the accused
and the deceased Raghav had a long standing land dispute between them and for the
said reason both of them also had regular verbal fights and altercations between them
on several occasions which was witnessed by the people of that particular locality.
2. That on 10.11.2010 Ramesh along with his two friends Vinit and Rahul went to a bar
which was in close proximity to the RTO office at around 10:30 pm at night. In the
same bar the servant of the deceased i.e. Ramlal (P.W. 1) who was also a regular
drunkard was sitting couple of rows behind the table where the accused and his other
two friends were sitting and he heard them whispering in low voices. At around,
12:00 am at night the accused and the other two friends left the bar in a motorcycle
and soon after they left the P.W. 1 also left the bar at 12:15 am.
3. Thereafter, the next day i.e. 11.11.2010 at around 9:30 am in the morning, the accused
went to the place of the deceased in order to settle the ongoing land dispute between
them andwhile such they both had an altercation on a particular matter which turned
violent and both of them picked up a physical fight as well. The gardener Mansa (
P.W.2) interfered in between and subsequently the fight came to an end and the
accused left the place of the deceased threatening him with dire consequences.
4. On the same day, at night while no one was at home except the P.W.2 and the
deceased, Three unidentified persons at around 11:45 pm at the night entered the
place of the deceased armed with Tangia and Katari, and assaulted the deceased.
When Mansa ( P.W.2) who was sleeping in the room adjacent to the bedroom of the
deceased heard the deceased shouting and yelling in pain. He immediately raised a
voice to which all the three unidentified persons left the place leaving behind their
weapons in the bedroom of the deceased. After those persons left, the P.W.2 entered
into the bedroom of the deceased wherein the deceased was badly injured and was
bleeding severely because of the assault and the injuries inflicted by the unidentified
persons. The P.W.2 reported the same incident to the police and by the time the police
arrived the place of occurrence the deceased was already dead.
5. The very next day i.e. 12.11.2010 on the basis of the F.I.R lodged by the servant
(P.W.1) and the F.IR was registered as P.S case no. 162/2010 corresponding to the

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G.R. caseno. 256/2010. The investigation began and the accused Ramesh and his
friends Vinit and Rahul were arrested by the local police station on the basis on the
F.I.R lodged by P.W.1 The statement of witnesses Ramlal(P.W.1), Mansa (P.W.2)
and a nearby shopkeeper (P.W.3 ) were recorded by the police. P.W.1 stated that
accused and his other two friends were sitting in a bar and he heard them whispering
in low voices. At around, 12:00 am at night the accused and the other two friends left
the bar in a motorcycle and soon after he also left. P.W.2 stated before the police that
on 11.11.2010 the accused and the deceased had fought over a matter and as soon as
he interfered both of them stopped fighting and the accused left the place of the
deceased and threatened to kill him. P.W.3 stated before the police that at around
11:40 pm he saw three persons wearing winter apparels entered into the house of the
deceased and he was unable to identify those three persons as their faces were
covered.
6. The post mortem report revealed that there were incised injuries on the neck,
shoulders chest and on the face of the deceased and all the injuries were anti mortem
in nature. The time of death was determined to be in between 12:40 am to 1:00 am.
The cause of death was due to severe blow on the forehead. However, the material
objects were not examined.
7. In course of the trial the Learned Additional Sessions Judge Jajpur considering the
material on record and after scrutinizing all the evidences came to a conclusion that
the caseagainst Vinit and Rahul was not made out but the accused was found guilty of
the offences under section 302/326 IPC, 1860 thereafter, sentencing him to undergo
life imprisonment.
8. This Appeal is directed against the order of conviction passed in ST No. 120/2010
dated 24.09.2016 passed by the learned Additional Sessions Judge Jajpur wherein he
convicted the accused person for the charges under section 302/326 IPC,1860.

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STATEMENTS OF ISSUES

ISSUE:1

Whether the act of the appellant falls under the requisites enumerated u/s 300 of

IPC or not ?

ISSUE : 2

Whether the punishment given by invoking section 326 of IPC, 1860 is justified

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SUMMARY OF ARGUMENTS

ISSUE:1

Whether the act of the appellant falls under the requisites enumerated u/s 300 of IPC or

not ?

It is humbly contended before the hon’ble court that the act of the appellant does not comply

with the requisites given u/s- 300 of IPC, 1860 which are the essentials to consider an act is

of murder or not.

That the appellant has not committed the offence of murder because the act done by him

doesn’t falls under the provisions of murder as defined in section 300 of IPC,1860.

That according to the post-mortem report which revealed the incised injuries on the neck,

shoulders and on the face of the deceased , but the point to be noted that the report also

clarifies that all the injuries were anti-mortem(occurring before death) in nature.

ISSUE : 2

Whether the punishment given by invoking section 326 of IPC, 1860 is justified ?

It is humbly submitted before the court that the punishment given to the accused by invoking

section 326 of Ipc was vague & miscarriage of justice.

That without the presence of a medical record is nothing can be pinned down on the accused

because if such a thing is done it would lead to miscarriage of justice and it would be unfair

to the accused as he would not given a fair trial.

That the accused has just been implicated in a false case due to an altercation he had with the

alleged victim, whereas there is not a single corroboration of the requisites given u/s-326

with the act of the accused.

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ARGUMENTS ADVANCED

ISSUE:1

Whether the act of the appellant falls under the requisites enumerated u/s 300 of IPC or

not ?

1. It is humbly contended before the hon’ble court that the act of the appellant does not

comply with the requisites given u/s- 300 of IPC, 1860 which are the essentials to

consider an act is of murder or not.

2. That the appellant has not committed the offence of murder because the act done by

him doesn’t falls under the provisions of murder as defined in section 300 of

IPC,1860.

3. That according to the post-mortem report which revealed the incised injuries on the

neck, shoulders and on the face of the deceased , but the point to be noted that the

report also clarifies that all the injuries were anti-mortem(occurring before death) in

nature.

4. And, also the post-mortem report elucidate that the cause of the death was due to

severe blow on the forehead not by any armed like Tangia and Katari claimed by the

prosecution side.

5. That the cause of death expound by the post-mortem report contradicts the 4th clause

of the section 300 of IPC,1860, Clause 4 of the Section talks about a person

committing any act. and knowing that the act thus committed is so

imminently dangerous that it will in all probability cause death or bodily

injury as is likely to cause death and herein in this case the report shows that there

was a severe blow on the forehead and there was no mention of any incised injuries

on the forehead in the facts given.

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6. Thus a severe blow on the forehead by hand is not so imminently dangerous that it

will all probability to cause death or bodily injury as is likely to cause death.

7. That the counsel for the appellant humbly submits before the hon’ble court that the

appellant had not attack the deceased person vindictively. The appellant had aware of

the cautions in between the altercation between them with the knowledge of that a

blow on the forehead by hand is not so dangerous and lesser probability to cause

death and execute the act in accordance to protect himself.

8. Section 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—

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:—

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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

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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.

9. In the case of Samuthtam alias Samudra Ranjan v. State of Tamil Nadu, (1997)1

laid down the principle as follows : to invoke this exception, four requirements must be

satisfied, namely.

a. It was a sudden fight

b. There was no premeditation

c. The act was done in a heat of passion and

d. The assailant had not taken any undue advantage or acted in a cruel manner.

The number of wounds caused during the occurrence is not a decisive factor but what is

important is that the occurrence must have been sudden and unpremeditated and the offender

must have acted in a fit of anger. Of course, the offender must not have taken any undue

advantage or acted in a cruel manner, where , on a sudden quarrel, a person in the heat of the

moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he

would be entitled to the benefit of this exception provided he has not acted cruelly.

10. In the case of "Jagriti Devi v State of Himachal Pradesh (SC 2003 Cr Appeal

823)2 it was held that the expression intention and knowledge postulate the existence

of positive mental attitude. It was further held that when and if there is intent and

knowledge, then the same would be a case under first part of section 304 and if it is

only case of knowledge and not intention to cause death by bodily injury, then the

same would be a case of second part of section 304.

1
Samuthtam alias Samudra Ranjan v. State of Tamil Nadu, (1997)
2
Jagriti Devi v State of Himachal Pradesh (SC 2003 Cr Appeal 823)

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11. In another case of 'Willie (William) Slaney vs. The State of Madhya Pradesh (1955

SCR (2)1140)3, William was on terms of intimacy with sister of deceased. The

brother did not like their intimacy. On the evening of the day of the occurrence, there

was a heated exchange of words. The accused gave one blow on his head with a

hockey stick with the result that his skull was fractured. He died in the hospital ten

days later. The doctor thought that injury was only likely to cause death. In the

opinion of court, the appellant could hardly be presumed to have had this special

knowledge that the blow was sufficient to cause death at the time he struck the blow.

So the offence falls under the second part of section 304 of IPC. While it has been

made clear in Virsa Singh's4 case that such knowledge is not necessary.

12. As this case it contradict to the clause 4 of section 300 IPC Therefore, the session

court has materially erred in holding the respondent accused guilty for the offence

punishable under Section 302 of IPC. The nature of the offence alleged to have been

committed by the respondent cannot by any stretch of imagination be said to be

murder as defined in section 300, IPC, but at best can be said to be culpable homicide

not amounting to murder under section 304, IPC, for which a punishment lesser than

life imprisonment may be imposed.

3
'Willie (William) Slaney vs. The State of Madhya Pradesh (1955 SCR (2)1140)
4
Virsa Singh

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ISSUE : 2

Whether the punishment given by invoking section 326 of IPC, 1860 is justified ?

1. It is humbly submitted before the court that the punishment given to the accused by

invoking section 326 of Ipc was vague & miscarriage of justice.

2. That without the presence of a medical record is nothing can be pinned down on the

accused because if such a thing is done it would lead to miscarriage of justice and it

would be unfair to the accused as he would not given a fair trial.

3. That the accused has just been implicated in a false case due to an altercation he had

with the alleged victim, whereas there is not a single corroboration of the requisites

given u/s-326 with the act of the accused.

4. Section 320 in The Indian Penal Code

320. Grievous hurt.—The following kinds of hurt only are designated as ―grievous‖:—

(First) — Emasculation.

(Secondly) —Permanent privation of the sight of either eye.

(Thirdly) — Permanent privation of the hearing of either ear,

(Fourthly) —Privation of any member or joint.

(Fifthly) — Destruction or permanent impairing of the powers of any member or joint.

(Sixthly) — Permanent disfiguration of the head or face.

(Seventhly) —Fracture or dislocation of a bone or tooth.

(Eighthly) —Any hurt which endangers life or which causes the sufferer to be during the

space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

It is humbly submitted before this Hon'ble Court of Session that in order to prove a grievous

injury it is necessary that the medical report should be present on the record. However, no

evidence of such sort has been produced by the prosecution and hence the accused should be

given the benefit of the doubt otherwise it would lead to miscarriage of justice.

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5. In State of U.P. vs. Indrajeet Alias Sukhatha1"5, the Supreme Court of India held

that "there is no such thing as a regular or earmarked weapon for committing murder

or for that matter a hurt.

6. Whether a particular article can per se cause any serious wound or grievous hurt or

injury has to be determined factually. At this juncture, it would be relevant to note

that in some provisions e.g. Sections 324 and 326 expressions "dangerous weapon" is

used. In some other more serious offences the expression used is "deadly weapon"

(e.g. Sections 397 and 398). The facts involved in a particular case, depending upon

various factors like size, sharpness, would throw light on the question whether the

weapon was a dangerous or deadly weapon or not. That would determine whether in

the case Section 325 or Section 326 would be applicable.

7. Essentials of Voluntarily Causing Grievous Hurt By Dangerous Weapons or

Means :

1. It is humbly submitted before this Hon'ble Court of Session that To hold a person liable for

punishment for committing the offence under sec 326 Indian Penal Code, the following

ingredients must be present. These are:

1.1. Accused must commit an act with the knowledge that he was likely to cause grievous

hurt to the victim.

1.2. He voluntarily caused it. No one forced him to do such an act.

1.3. He committed it by following means:

1.3.1. By any instrument of stabbing, shooting or cutting;

1.3.2. By an instrument, which if used as a weapon, can cause death of a person.

1.3.3. By fire or any other heated substance.

1.3.4. By any poisonous or corrosive substance

5
State of U.P. vs. Indrajeet Alias Sukhatha

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1.3.5. By using any kind of explosive substances

1.3.6. By using substances which are hard to swallow or inhale by a human body

8. In Pritam Singh & Another v. State of Punjab6, the Punjab and Haryana High

Court held that "Meaning of the words "dangerous to life" are equivalent to

"endangering life" and such acts squarely covered within the ambit of clause Eighthly

of Section 320 IPC10, which is punishable under Section 326 IPC."

9. In Atma Singh v. The State of Punjab7, the Division Bench of Punjab and Haryana

High Court held that "The expression 'dangerous' is an adjective and the expression

'endanger' is verb. An injury which can put life in immediate danger of death would

be an injury which can be termed as 'dangerous to life' and, therefore, when a doctor

describes an injury as 'dangerous to life', he means an injury which endangers life in

terms of clause (8) of Section 320, Indian Penal Code, for, it describes the injury

'dangerous to life' only for the purpose of the said clause. He instead of using the

expression that this was an injury which 'endangered life' described it that the injury

was 'dangerous to life', meaning both the times the same thing."

Injury described by the doctor as dangerous to life and if not treated i.e. to say that but

for timely and medical aid the injured was likely to die. Such type of injury/opinion is

not the type of the injury as would attract the provisions of Section 307 IPC, which

envisages an injury sufficient in the ordinary course of nature to cause death, such

injury would fall within the ambit of clause Eighthly of Section 320 IPC, would be

punishable under Section 326 IPC and in view of such opinion, charge under Section

307 IPC cannot be sustained.

6
Pritam Singh & Another v. State of Punjab
7
AtmaSinghv.TheStateofPunjab

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PRAYER

In the light of the facts stated, issues raised, arguments advanced and authorities cited the

counsel on behalf of the appellant humbly prays before the Hon’ble High court of Odisha to

kindly adjudge and declare.

1. To maintain this appeal.

2. That the accused is not liable u/s-302,326 of IPC,1860.

Or to pass any appropriate relief that the Hon’ble court may deem fit and is in the best

interest of justice, equality and good conscience,

And for this act of kindness, the counsel on behalf of the appellant , as duty bound shall

forever pray.

All of which most humbly and respectfully submitted

s/d__________

COUNSEL FOR THE APPELLANT

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