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BEFORE THE HON’BLE HIGH COURT

Criminal Appeal No. ______/2024

STATE

….APPELLANT

VERSUS

ABHAY RAICHAND

….RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

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CONTENTS
LIST OF ABBREVIATIONS ......................................................................................................................... 3

MATERIAL REFERRED............................................................................................................................... 4

LIST OF AUTHORITIES ............................................................................................................................... 6

STATEMENT OF JURISDICTION .............................................................................................................. 8

FACTS OF THE CASE ................................................................................................................................... 9

ISSUES RAISED............................................................................................................................................ 10

SUMMARY OF ARGUEMENTS ................................................................................................................ 11

ARGUEMENTS ADVANCED ..................................................................................................................... 12

PRAYER ......................................................................................................................................................... 31

MEMORIAL ON BEHALF OF RESPONDENT

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LIST OF ABBREVIATIONS

u/s Under Section

AC Appeal Cases

Anr Another’s

Art. Articles

Co. Company

Edn. Edition

Hon’ble Honourable

i.e. That is

HC High Court

SC Supreme Court

NO. Number

AIR All India Reporter

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

IPC Indian Penal Code

p. Page No.

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Sec. Section

SCC Supreme Court Cases

v. Versus

SCR Supreme Court Reporter

MATERIAL REFERRED

1. KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd., 2016

2. Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II , Thomson Reuters)

3. Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)

4. Ratanlal & Dhirajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016)

5. SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency, 2014)

6. S.N.Mishra,The code of criminal procedure, (22nd Ed., Central Law publications, 2020)

7. RV, Kelkar, Criminal Procedure, (7th ed. EBC, 2021)

8. P.S.A Pillai’s Criminal law,( 14th ed. Lexis-Nexis, 2021)

9. Surya Narayan Mishra, Shriniwas Gupta (ed.), Indian Penal Code (Central Law Agency, Allahabad, 20th
Edi, 2016).

10. Sir H.S. Gour, H.S. Gour’s Commentary on the Indian Penal Code, 1860, Law Publishers (India) Pvt.
Ltd., 2017

11. K.N. Chandrashekhar, Pillai,Essays on Indian Penal Code, 1860, Universal Law Publication, 2019.

LEXICONS:

1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

2. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009)

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3. Oxford Advanced Learners Dictionary, (7th ed., 2008)

JOURNALS REFERRED

1.All India Reporter

2.Supreme Court Cases

3. Indian Law Reporter

STATUTES REFERRED

1. Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. Indian Penal Code, 1860 (Act 45 of 1860)

3. Indian Evidence Act, 1872 (Act 18 of 1872)

DATABASES REFERRED

1. http://www.scconline.com (last visited on 21st February 2024).

2. http://www.maupatra.com (last visited on 20th February 2024).

3. http://www.lexisnexis.com (last visited on 23rd February 2024).

4. http://www.judis.nic.in (last visited on 21st February 2024)

5. https://www.livelaw.in/ (last visited on 21st February 2024)

6. https://www.lawfinderlive.com/ (last visited on 24th February 2024)

7. https://www.casemine.com/ (last visited on 25th February 2024)

ARTICLES REFERRED

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1. Bandoim, Lana. “What Does the Appendix Do?” Verywellhealth.Com, 5 Feb. 2023,
https://www.verywellhealth.com/what-does-the-appendix-do-5270731.

2. “CK-12 College Human Biology.” CK-12 , 4 Nov. 2021,

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ah
UKEwir6ZnD49eEAxUxRmwGHU_mBMwQFnoECCYQAQ&url=https%3A%2F%2Fwww.ck12.o
rg%2Fbook%2Fck-12-human-
biology%2Fsection%2F2.0%2F&usg=AOvVaw1iLw57ONLeQA0O96x3fFNZ&opi=89978449.

3. Watson, Stephanie. “What You Need to Know About Ruptured Appendix.” Healthline.Com, 2022,
https://www.healthline.com/health/ruptured-appendix.

LIST OF AUTHORITIES

1. Kartar Singh v. State of Punjab, AIR 1994 SCC 569

2. Mahadeo Prasad v. State of West Bengal (AIR 1954 SC 724)
3. Gobinda Singh v. State, AIR 1946 JLR 361
4. Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
5. State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
6. Nathulal v. State of M.P. AIR 1966 SC 43
7. Amrik Singh v. State of PEPSU, 1955 AIR 309
8. Ninaji Raoji Bhaudha v State of Maharashtra, 1976 AIR 1537
9. Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444
10. Trimukh Maroti Kirkan vs. State of Maharashtra ,2006 AIR SCW 5300
11. Srju Prasad v. State of Bihar, AIR 1965 SC 843: (1965) 1CrLJ 766: (1965) 2 SCJ 126:
12. Bhagwan Din v. State, AIR 1967 ALL 580:
13. John v. State of Kerela, ILR (1969) 2 Ker 604:1969 Ker LT 488
14. State of Maharshtra v. Balram Bama Patil,1983 CrLJ 331(SC)
15. Rau Bhagwanta Hargude v. State of Maharasthra, AIR 1979 SC 1224
16. State of Rajasthan v Dhool Singh, AIR 2004 SC 1264
17. Gudar Dusadh v. State of Bihar, AIR 1972 SC 952
18. Visa Singh v. State of Punjab,AIR 1958 SC 465
19. Anil Kumar v. State,Criminal Appeal No. 489/2012
20. Faqira v. State AIR 1955 All. 321

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21. Miller v. Minister of Pensions, [1947] 2 All ER 373

22. State of Punjab v. Budh Prakash A1.R. 1989 S.C. 1094.
23. Surinder Kumar v. Union Territory. Chandigarh AIR 1989 S.C. 1094
24. Sathees Kumar v. State of Kerala, 1993 S.C.Cr.R. 134 at p. 136 (Ker.).
25. Kirpal Singh u. State, A.I.R. 1951 Punj, 137 at p. 140.
26. Hans Raj Singh v. Emperor, ALR. 1946 Lah. 41 at pp. 43, 46
27. Amirthalinga Nadar v. State of Tamil Nadu (1976) 2 SCC 195
28. Bhimanna v. State of Karnataka (2012) 9 SCC 650
29. Prabhakar Vithal Gholve v. State of Maharashtra, (2016) 12 SCC 490
30. Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653)
31. Jai Prakash v. State 1991 SCR (1) 202
32. Randhir Singh v. State of Punjab, AIR 2004 SC 5097
33. State of U.P. vs. Indrajeet Alias Sukhatha, (2000) (7) SCC 249)
34. Anwarul Haq v. State of U.P. 2005 AIR SCW 2522
35. Mathai vs. State of Kerala, (2005) 3 SCC 260
36. Parahu v. State, 1961 MPLJ SN 77
37. Kamla Bai vs Naresh, (2016) 160 AIC 50

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STATEMENT OF JURISDICTION

The prosecution has filed the appeal against the decision of the Trial court which acquitted the accused of
charge under Section 302 of Indian Penal Code, 1860 (“Code”). This appeal has been filed under Section
378(1)(b) of Code of Criminal Procedure, 1973.

Section 378(1)(b) provides as under -

Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), -

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High
Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not
being an order under clause (a)] or an order of acquittal passed by the High Court of Session in revision.]

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FACTS OF THE CASE

1. Abhay Raichand was a rich businessman of the city Riverdale. He was an extremely arrogant and
short- tempered by nature and was in the quarreling with everyone on petty issues also. The
deceased, Rupam Singh was an athlete by profession and Abhay Raichand's immediate neighbour.

2. Both Abhay Raichand and Rupan Singh were never on friendly terms with one another. On one
occasion, the deceased, Rupan Singh had kept a function in his house. However, Abhay Raichand
was not invited in the function due to the nature of Abhay Raichand because of which his ego was
hurt. On that day when the deceased, Rupam Singh was parking his car in front of the gate of the
house of Abhay Raichand, the deceased, Rupam Singh was sternly warned by Abhay Raichand not
to park the car on that place as being already irritated by the deceased, Rupam Singh.The deceased
Rupam Singh refused to remove the car replying that it was not Abhay Raichand's personal property,
and that the car will be removed after the function and departure of guests.

3. Abhay Raichand lost his balance of mind and slapped Rupam Singh. Both started quarreling and
grapped each other, in the course Abhay Raichand gave a fist blow on the stomach of deceased,
Rupam Singh and consequently appendicitis of the deceased, Rupam Singh busted, and the deceased
fell down in severe pain in stomach.

4. Abhay Raichand immediately threw the deceased in the car of deceased itself and drove the car
towards the nearest hospital. At the same time since a large number of cars were parked in the street,
Abhay Raichand had to face difficulty to take the car out of the street and a lot of time was wasted.
5. The deceased, Rupam Singh could not be saved, and doctors gave a statement that if the deceased,
Rupam Singh had been brought ten minutes early, the deceased, Rupam Singh could have been
saved. Besides the medical report also mentioned that one tooth of the deceased, Rupam Singh was
also found to be broken.

6. Abhay Raichand was charged with the offence of murder under Section 302 of Indian Penal Code.
The Trial Court convicted Abhay Raichand only under Section 326 of Indian Penal Code for causing
grievous hurt.

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ISSUES RAISED

1) WHETHER THE ACCUSED, ABHAY RAICHAND HAS COMMITTED MURDER UNDER

SECTION 302 OF THE INDIAN PENAL CODE?

2) WHETHER THE ACCUSED IS ENTITLED TO ANY EXCEPTIONS OR NOT?

3) WHETHER THE TRIAL COURT WAS RIGHT IN CONVICTING THE ACCUSED UNDER
SECTION 326 OF I.P.C

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SUMMARY OF ARGUEMENTS

ISSUE I: WHETHER THE ACCUSED, ABHAY RAICHAND HAS COMMITTED

MURDER UNDER SECTION 302 OF THE INDIAN PENAL CODE?

It is humbly submitted before the Honourable Court that the alleged accused has not committed any offence
under this section 302 of the Indian Penal Code ,1860. As there was no intention on the part of accused to
cause death of the accused and the same was result of fight which was provoked by the deceased himself
even after the warnings given by the accused. Further it is to be stated that the prosecution has not been able
to prove their case beyond the reasonable doubt not only this there is absence of any ocular evidence and
medical evidence which is a prerequisite in proving the case.

ISSUE II: WHETHER THE ACCUSED IS ENTITLED TO ANY EXCEPTIONS OR NOT?

It is most humbly submitted before the Honourable Court that the accused is entitled to exception four of
section 300 of Indian Penal Code, 1860 which is a case of sudden fight. This was a case of sudden fight and
without any pre-mediation. It is further stated that the alleged deceased had himself shown aggression
towards the accused and the wrong was first committed by the deceased by parking the car in front of the
accused the house which amounts to criminal trespass and even after the warning given by the accused, the
deceased provoke the accused which leads to sudden fight between them. The accused had not exceeded his
authority or acted in brutal or cruel manner.

ISSUE III: WHETHER THE TRIAL COURT WAS RIGHT IN CONVICTING THE ACCUSED
UNDER SECTION 326 OF I.P.C

It is most humbly submitted before this Honourable Court that the trial court was not right in convicting the
accused under section 326 of the Indian Penal Code, 1860. As the word “fist” is not a deadly weapon, and
the prosecution fails to prove the guilt of the accused under this section as the ingredients are not fulfilled.

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ARGUEMENTS ADVANCED

ISSUE I: WHETHER THE ACCUSED, ABHAY RAICHAND HAS COMMITTED MURDER

UNDER SECTION 302 OF THE INDIAN PENAL CODE?

It is most humbly submitted before the Hon’ble Court that the accused has not committed murder under
section 302 of the Indian penal code, 1860.

‘Actus reus non facit reum nisi mens sit rea’ is a fundamental principle in criminal law that translates to "an
act does not make a person guilty unless there is a guilty mind1and guilty mind in present case is absent as it
was not voluntary, also “actus me invito factus non est means actus” which, according to common law,
signifies “an act done against my will is not my act.

All Crimes always includes two elements ‘actus rea’ and ‘mens rea’, if any of them is absent in a particular
crime then that act will not come under the ambit of Crime.

In the case of Mahadeo Prasad v. State of West Bengal2, the court held that no external conduct, howsoever
serious in consequences, is generally punished unless the prohibited consequence is produced by some
wrongful intent, fault or mens rea.

SECTION 300 OF THE IPC,1860 PROVIDES THE DEFINITION OF THE MURDER AND
ENUMERATE THE INGREDIENTS OF THE OFFENCE.

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—
(Secondly)— 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—
(Thirdly)— 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
(Fourthly)— 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.

1
Kartar Singh v. State of Punjab, AIR 1994 SCC 569
2
Mahadeo Prasad v. State of West Bengal (AIR 1954 SC 724)

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To constitute the offence of attempt to murder, following two ingredients of offence

must be present3:

• An Intention and Knowledge of committing murder- MENS REA

• The doing of an act towards it- ACTUS REUS

ABSENCE OF MENS REA IN THE PRESENT CASE:-

Mens Rea is considered as guilty intention4,which is proved or inferred from the acts of the accused5. The
Supreme Court has held that Mens Rea is an essential ingredient of a criminal offence.6

It implies a conscious desire or purpose to bring about the fatal consequences. Intent can be inferred from the
circumstances surrounding the crime, the conduct of the accused, or any premeditation involved.

It is presumed that every sane person intends the result that his action normally produces and if a person hits
another on a vulnerable part of the body, and death occurs as a result, the intention of the accused can be no
other than to take the life of the victim and the offence committed amounts to murder.7

In the present case there was no intention on the part of the accused to kill deceased. Further, his act of
driving him instantly to the hospital depicts his innocence.

The Supreme Court in Ninaji Raoji Bhaudha v. State of Maharashtra8, held that:

Where there is no evidence as to any intention on the part of the appellant either to cause death or have the
knowledge that such injuries would be likely to cause death, it would not be justified to convict under
section 302 or section 304 of IPC.

In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh 9 considered these aspects and
held that:

"29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as
that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or

3
Gobinda Singh v. State, AIR 1946 JLR 361
4
Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
5
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
6
Nathulal v. State of M.P. AIR 1966 SC 43
7
Amrik Singh v. State of PEPSU, 1955 AIR 309
8
Ninaji Raoji Bhaudha v State of Maharashtra, 1976 AIR 1537
9
Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444

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insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no
intention. There may be no premeditation. In fact, there may not even be criminality.

The intention to cause death can be gathered generally from a combination of a few or several of the
following, among other, circumstances;

(i) nature of the weapon used;

(ii) whether the weapon was carried by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such
provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and
unusual manner;

(xi) whether the accused dealt a single blow or several blows.

The above list of circumstances is, of course, not exhaustive and there may be several other special
circumstances with reference to individual cases which may throw light on the question of intention.”

In Trimukh Maroti Kirkan vs. State of Maharashtra10, court held as under: "In the case in hand, there is no
eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal
principle in a case based on circumstantial evidence is that the

10
Trimukh Maroti Kirkan vs. State of Maharashtra ,2006 AIR SCW 5300

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(a)circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly
established;

(b)that those circumstances should be of a definite tendency unerringly pointing towards the guilt of
the accused;

(c)that the circumstances taken cumulatively should form a chain so complete,

(d) that there is no escape from the conclusion that within all human probability, the crime was
committed by the accused and

(e) they should be incapable of explanation on any hypothesis other than that of the guilt of the
accused and inconsistent with their innocence."

Intention to kill should be clearly proved by circumstances like the persistence of attack on vital parts of the
body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the
victim would be killed. The intention is not gatherable merely from the resultant injury.11

Supreme Court in State of Maharashtra v. Balaram Bama Patil12, it was held that to convict under this
section what court has to see is whether the act irrespective of the result, was done with intention or
knowledge and circumstances mentioned in this section.

ACCUSED CASE

In the present case neither any weapon was used, nor the blow was given on any vital organ of the deceased
which clearly shows that there was intention on the part of accused.

It is most humbly submitted before this court that the factual matrix clearly stated that “Abhay Raichand
immediately threw the deceased in the car of deceased itself and drove the car towards the nearest hospital.”

This sequence of events, raises a significant question about the alleged intent to kill on the part of the
accused. If, indeed, Mr. Raichand harbored any malicious intent towards the deceased, logic dictates that he
would not have taken immediate steps to transport the individual to the nearest hospital.

The act of swiftly placing the deceased in their own car and driving towards medical assistance suggests an
urgent and genuine concern for the well-being of the victim. It stands to reason that if Mr. Raichand had

11
Srju Prasad v. State of Bihar, AIR 1965 SC 843: (1965) 1CrLJ 766: (1965) 2 SCJ 126: Bhagwan Din v. State, AIR 1967 ALL
580: John v. State of Kerela, ILR (1969) 2 Ker 604:1969 Ker LT 488
12
State of Maharshtra v. Balram Bama Patil,1983 CrLJ 331(SC)

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intended harm, he would have refrained from seeking medical help or taken actions inconsistent with
providing immediate aid.

Moreover, This medical testimony serves as a crucial piece of exculpatory evidence for Mr. Abhay
Raichand. It underscores the urgency and diligence exhibited by the accused in rushing the deceased to the
hospital. The tragic outcome was not a result of any delay or intentional harm caused by Mr. Raichand but
rather an unfortunate consequence of the time-sensitive nature of the medical emergency.

In instant case two views are getting out from evidences; guilt and innocence of accused, therefore, from
above arguments appellants are liable to get benefit of doubt.

1. DOES NOT FALL UNDER CLAUSE 1

The first clause of section 300 stipulates that when an act (including legal omission) is done with the
intention of causing death, then it is culpable homicide amounting to murder. It is the simplest and at the
same time, the gravest of the species of murder.

In the case of Rau Bhagwanta Hargude v. State of Maharasthra 13, when an accused hit the deceased on a
vital part of the body, the chest, with the blade of a sword, two feet in length with such force as to impair the
liver and the aorta, it was held the offence was plainly one of murder.

However, in the present case, the deceased was given a fist blow on the stomach which is not a vital organ.
The research publishes the following as the vital organs:

“The human body contains five organs that are considered vital for survival. They are the heart, brain,
kidneys, liver, and lungs14”

2. NOT COVERED BY SECOND CLAUSE:

The second clause of section 300 stipulates that if a person intentionally causes bodily injury, with the
knowledge that such bodily injury will cause death of the person injured, then it will be culpable homicide
amounting to murder.

Thus, the mens rea or the mental attitude contemplated under clause 2 of section 300 is twofold.

1. First, there must be an intention to cause bodily harm.

2. Secondly, there must be "knowledge" that death is the "likely" result or consequence of such
intended bodily injury. Here subjective knowledge matters.

13
Rau Bhagwanta Hargude v. State of Maharasthra ,AIR 1979 SC 1224
14
(https://www.ck12.org/book/ck-12-human-biology/)

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In State of Rajasthan v Dhool Singh15,the Supreme Court held the accused guilty of murder who inflicted
incised cut with a sword on the neck of the deceased, which led to excessive bleeding and the consequential
heart failure, on the ground that he knew that the bodily injury caused by him would likely cause death of the
injured.

In the case at hand, no subjective knowledge was on the part of the respondent that a simple blow would lead
to his appendix to burst. Hence no malice or ill intention could be imposed on the respondent.

3. NOT COVERED BY THIRD CLAUSE:

In the case of Gudar Dusadh v. State of Bihar16 , the court held that the essence of the clause is the
sufficiency of the injury in the ordinary course of nature to cause death. When the word "sufficiency" is
used, it means where there is a very high probability of the injury resulting in death.

In Virsa Singh v. State of Punjab17, the Supreme Court laid down that in order to bring a case within clause
(3) of section 300, the prosecution must prove the following:

(1) It must establish, quite objectively, that a bodily injury is present.

(2) The nature of the injury must be proved.

(3) It must be proved that there was an intention to inflict that particular bodily injury, that is to say,
that it was not accidental or unintentional, or some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further, and

(4) It must be proved that the injury of the type just described made up of the three elements set out
above, is sufficient to cause death in the ordinary course of nature.

The court in the case held that merely because the blow landed on a particular spot on the body divorced
from the circumstances in which the blow was given it would be hazardous to say that the accused intended
to cause that particular injury.18

The Supreme Court in Jai Prakash v. State19 expressed the following opinion in paragraph 13:

15
State of Rajasthan v Dhool Singh, AIR 2004 SC 1264
16
Gudar Dusadh v. State of Bihar, AIR 1972 SC 952
17
Virsa Singh v. State of Punjab,AIR 1958 SC 465
18
Randhir Singh v. State of Punjab, AIR 2004 SC 5097
19
Jai Prakash v. State 1991 SCR (1) 202

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“It can thus be seen that the ‘knowledge’ as contrasted with ‘intention’ signify a state of mental realisation
with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.
On the other hand, ‘intention’ is a conscious state in which mental faculties are aroused into activity and
summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as
to bring about a certain event. Therefore, in the case of ‘intention’ mental faculties are projected in a set
direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a
question of fact. In Clause Thirdly the words ‘intended to be inflicted’ are significant. As noted already,
when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact
that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily
follow that the offender intended to cause the injury of that nature. However, the presumption arises that he
intended to cause that particular injury. In such a situation the Court has to ascertain whether the facts and
circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be
laid down in an abstract rule and they will vary from case to case.”

It is worth mentioning here that the third element that the intention to cause the particular body injury is
absent in the present case. Also, the fourth element cannot be proved as fist blow in stomach cannot in
anyway be fatal.

In the case of Anil Kumar v. State20, the court held that even the medical experts did not have any
knowledge that a mere kick on the stomach would lead to the possibility of death. If the medical expert did
not have such knowledge implicitly, it is unsafe to hold that a common man would have such a knowledge.

Virsa Singh v. State of Punjab 21the weapon used, the degree of force released in wielding it, the antecedent
relations of the parties, the manner in which the attack was made that is to say sudden or premeditated,
whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their
nature and the part of the body where the injury was inflicted are some of the relevant factors.”

In the case of Virsa Singh (supra), in paragraphs 16 & 17, it was observed and held as under:

‘16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the
totality of the circumstances justify such an inference, then, of course, the intent that the section requires is

20
Anil Kumar v. State,Criminal Appeal No. 489/2012
21
Virsa Singh v. State of Punjab,AIR 1958 SC 465

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not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only
possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious
consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict
the injury in question; and once the existence of the injury is proved the intention to cause it will be
presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the
intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if
serious, how serious, is a totally separate and distinct question and has nothing to do with the question
whether the prisoner intended to inflict the injury in question.’

4. DOES NOT FALL IN CLAUSE-4

Clause (4) of section 300 contemplates generally, commission of acts which are so imminently dangerous
that it is likely to cause death. Under this clause, the act need not be directed at any particular individual nor
there an intention to cause the death of any particular individual. It has to merely be a reckless act, which is
imminently dangerous.

Charles Darwin was the first to publicly assert that the appendix was a "leftover" organ from evolution
that serves no purpose. This was supported by the fact a person can live perfectly well without an appendix.
That the organ varies dramatically in size and shape adds further credence to the assumption that the
appendix is, in fact, vestigial22.

The risk of rupture increases the longer that appendicitis treatment is delayed. The risk is about 2% 36
hours after symptoms start. After that, the risk increases by about 5% every 12 hours.23

In the case of Faqira v. State24 , the Court held that an attack by fists or by wooden end of scythe is not by
itself of such a nature as must in all probability cause death.

Thus, the case is not covered under any of the four clauses of Murder.

5. NO CULPABLE HOMICIDE:

Section 299 IPC reads as:-

22
(What Does the Appendix Do? Anatomy, Function, Diseases (verywellhealth.com).
23
(https://www.healthline.com/health/ruptured-appendix)
24
Faqira v. State AIR 1955 All. 321

MEMORIAL ON BEHALF OF RESPONDENT

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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.

It is noteworthy to mention here neither the respondent had knowledge nor intention. Therefore, the death is
not caused by the act of respondent.

LEGAL CAUSATION

It is a narrower and more subjective concept as compared to factual causation. Not every cause in fact can be
said to be the cause in law. It is more of an inquiry made by a lawman rather than a layman. The isolation of
a legal cause from amongst a possible multitude of factual causes is a process involving subjective common
sense rather than objectively measurable criteria. However, while attempting to assign criminal liability in
this manner, one must seek some form of abnormality or culpable behaviour.

Novus actus interveniens

The defendant may avoid liability even if found factually caused the harm in two circumstances known as
Novus actus interveniens. First, some third party intervened between the defendant’s act and the result i.e.
voluntary intervention by 3rd party. And second, some events occurred between the defendant’s conduct and
end result i.e. abnormal intervention or unforeseeable natural events.

The individual's innocence in this case is attributed to the delay in reaching the hospital caused by traffic,
coupled with the absence of significant injury.

CLEAN HANDS DOCTRINE

The Clean Hands Doctrine is a legal principle that states that a person who has acted wrongly, either morally
or legally, cannot seek equitable relief for their own wrongdoing. The maxim does not come into play
“unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity
sued for.”

In the case at hand, the issue started because of the unreasonable demand of respondent wherein deceased,
Rupam Singh parked his car in front of the gate of the house of Abhay Raichand, the deceased, Rupam Singh
was sternly warned by Abhay Raichand not to park the car on that place as being already irritated by the
deceased, Rupam Singh. The deceased Rupam Singh refused to remove the car replying that it was not
Abhay Raichand's personal property and that the car will be removed after the function and departure of
guests.

The warning by respondent in the present case followed by the grave unreasonable demand depicts the clear
intentions of respondent.

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Hence, it is submitted before this Hon’ble court that since neither the knowledge, nor the intention is present
in the present case. It is in the light of justice, that respondent be acquitted.

Burden of Proof:

In the legal realm, the presumption of innocence and burden of proof are fundamental concepts essential for
a fair legal system. These principles are pivotal in the Indian legal framework, ensuring justice is
administered fairly.

In a criminal case, the cardinal principle is that the accused is innocent till the guilt is proved beyond
reasonable doubt by the prosecution. The prosecution must prove its case beyond reasonable doubt is a rule
of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. The general
burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of
the cases covered by Section 105 of the Indian Evidence Act, the prosecution is not absolved of its duty of
discharging the burden.

Lord Denning, J. in Miller v. Minister of Pensions25, while examining the degree of proof required in
criminal cases stated: "That degree is well-settled. It need not reach certainty but it must reach a high degree
of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law
would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

The 'Burden of Proof' lies with the prosecution to prove the guilt of the accused beyond a reasonable doubt.
No medical report has been produced to attribute the cause of death to the respondent. In a place where there
is a party and too many cars parked on the street, it's strange that no one noticed the incident.

ISSUE II: WHETHER THE ACCUSED IS ENTITLED TO ANY EXCEPTIONS OR NOT?

It is most humbly submitted before this court that the accused is entitled to exception under section 300 of
Indian Penal Code,1860.

The act of the accused fall under the following exceptions

EXCEPTIONS –4

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.

25
Miller v. Minister of Pensions, [1947] 2 All ER 373

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Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.

The fourth exception covers acts done in a sudden fight. This exception deals with a case of provocation not
covered by the first exception, after which its place would have been more appropriate. The exception is
founded upon the same principle for in both there is the absence of premeditation but while in the one case
there is the total deprivation of self- control in this there is only that heat of passion which clouds men's
sober reason and urges them to deeds which they would not otherwise do.

In fact, the present exception deals with cases in which notwithstanding that a blow may have been struck, or
some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet
the subsequent conduct of both parties puts them in respect of guilty upon an equal footing.

Where the accused gave a fatal blow without pre-meditation in a sudden fight in the heat of passion upon a
sudden quarrel and there is no evidence that the accused took any undue advantage or acted in a cruel or
unusual manner but merely gave single blow on the stomach of the deceased which proved fatal, and he did
not go on assaulting the deceased despite his falling down unconscious on the ground, and took him to the
hospital. It is contented before this court that the word “immediately” is used i.e. he immediately took the
deceased to the hospital which clearly shows that he didn’t act in cruel manner.

In State of Punjab v. Budh Prakash26, the accused and the deceased exchanged a few hot words when the
accused caught the deceased by the neck, gave him a few fists and squeezed his neck. The death of the
deceased occurred in the sudden fight that ensued after the sudden quarrel. There was no premeditation. It
was held that Exception 4 to Sec. 300 was applicable.

The Supreme Court in Surinder Kumar v. Union Territory. Chandigarh 27held that in order to invoke
Exception 4 to Sec. 300 four requirements must be satisfied.

(a) it was a sudden fight.

(b) There is no pre-meditation the act was done, in a heat of passion, and

(c) The assailant had not taken any undue advantage or acted in a cruel manner.

26
State of Punjab v. Budh Prakash A1.R. 1989 S.C. 1094.
27
Surinder Kumar v. Union Territory. Chandigarh AIR 1989 S.C. 1094

MEMORIAL ON BEHALF OF RESPONDENT

 TC-C 23

As for the sudden quarrel, the court said, "The cause of the quarrel is not relevant nor is it relevant who
offered the provocation or started the assault".

Needless to point out that the burden is on the accused to prove the aforesaid requirements in order to avail
of himself of the benefit under the exception (4).28

Heat of passion requires that there must be no time for the passion to cool down and in this case the parties
have worked themselves into a fury on account of the verbal alteration in the beginning. The fight as the
nature of the injuries on both sides would show appears to be on equal terms.

INGREDIENTS

this exception can be invoked if and only if death is caused-

(a) without premeditation,

(b) in a sudden fight,

(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner, and

(d) the fight must have been with the person killed.

1. Premeditation.

To constitute a premeditated killing, it is necessary that the accused should have reflected with a view to
determine whether he would kill or not: and that he should have determined to kill as the result of that
reflection: that is to say, the killing should be a pre-determined killing upon consideration and not a sudden
killing under the momentary excitement and impulse of passion upon provocation given at the time or so
recently before as not to allow time for reflection.29

28
Sathees Kumar v. State of Kerala, 1993 S.C.Cr.R. 134 at p. 136 (Ker.).

29
Kirpal Singh u. State, A.I.R. 1951 Punj, 137 at p. 140.

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 TC-C 24

But in considering whether the exception is applicable to any given set of facts, the first test is not whether
the killing was premeditated or not. The test is whether the act of an accused which caused the deceased's
death was done without premeditation.

EVIDENCE OF PREMEDITATION

Premeditation may be established by direct or positive evidence or by circumstantial evidence.

In the instant case, it is contended before the court that the there was no pre mediation on the part of the
accused. It is further contended that if there had been any premeditation, the accused would have likely used
a weapon or targeted vital areas of the deceased.

It was all the result of altercations which took place because of the parking of car by deceased in front of the
house of accused even warned by the accused and keeping in mind the cordial relations which existed
between them.

2. Sudden Fight

Most important element of this exception is that there should be a Sudden fight. fight, i.e. at least an offer of
violence on both sides.

The term "fight occurring in Exception 4 to Sec. 300. I.P.C., is not defined in the Indian Penal Code. It takes
two to make a fight. In order to constitute a fight, it is necessary that the blows should be exchanged, and it is
not necessary that weapon should be used.

"Fight" postulates a bilateral transaction in which blows are ex- changed

If a person gives blow to another, there will be fight only if the other hits him back or at least he gets ready
and attempts to assaults but none if he keeps quiet and does nothing. In that case it will be only a one-sided
attack and not a fight.

It is contented before this court that the sudden fight took place between the two as the factual matrix clearly
mention that “both started quarrelling and grabbed each other”

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 TC-C 25

In Hans Raj Singh v. Emperor30, court held that a word or a gesticulation may be as provocative as a
blow.The word "fight" as used in this exception does not necessarily mean a fight with weapons A fight is "a
combat between two or more persons", whether with or without weapons. Exception 4 of Sec 300 covers
only acts done in a sudden fight.

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.

In Amirthalinga Nadar v. State of Tamil Nadu31, Justice P.N.Bagwati, held that in a case of Sudden fight,
where the fatal blow was given as a part of the sudden fight that arouse out of sudden quarrel between the
appellant’s party and deceased’s party, there is no scope for premeditation. The appellant undue advantage
nor acted in cruel and unusual manner.

In the case of Bhimanna v. State of Karnataka32, Due to a dispute over pathway, there was a sudden
quarrel between the accused and the deceased. The accused stopped attacking as soon as the deceased fell
down. This is indicative of the fact that there was no intention to kill and there was no premeditation. The
Apex court finally held that the accused should be convicted under s.304, 447,504 r/w 34 while setting aside
the conviction u/s 302 r/w 34 IPC.

In Prabhakar Vithal Gholve v. State of Maharashtra33, it was a case of sudden fight without
Premeditation. There was no proof of motive and injuries were present in the body of the accused.when
injury on the appellant has also been proved there is sufficient material to infer the reasonable possibility of a
grave and sudden provocation. it can be safely inferred that there was no intention on the part of the accused
persons to cause death.

To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the
"fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat
of passion requires that there must be no time for the passions to cool down and in this case, the parties have
worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat
between two or more persons whether with or without weapons. It is not possible to enunciate any general
rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception
4, it is not sufficient to show that there was a sudden quarrel and that there was no premeditation. It must

30
Hans Raj Singh v. Emperor, ALR. 1946 Lah. 41 at pp. 43, 46
31
Amirthalinga Nadar v. State of Tamil Nadu (1976) 2 SCC 195
32
Bhimanna v. State of Karnataka (2012) 9 SCC 650
33
Prabhakar Vithal Gholve v. State of Maharashtra, (2016) 12 SCC 490

MEMORIAL ON BEHALF OF RESPONDENT

 TC-C 26

further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The
expression "undue advantage" as used in the provision means "unfair advantage".

The above position is highlighted in Sandhya Jadhav v. State of Maharashtra34”

Heat of Passion and Momentary Impulse:

It is contented that the altercation between the accused and the deceased resulted from a momentary lapse of
judgment in the heat of passion. This aligns with the psychological theory that actions committed in the heat
of the moment may not reflect a premeditated intent.

Psychological Impact of Ego and Provocation:

It is contented that the accused's actions were influenced by provocation and wounded pride due to the
perceived insult at not being invited to the deceased's function. This aligns with criminology theories that
suggest ego and provocation can lead to impulsive actions without a calculated intent to cause harm.

In the present case, the accused's actions were not driven by a premeditated intent to cause death. The
altercation arose from a heated exchange over a trivial matter, suggesting a lack of clear intention to cause
harm. The accused's mental state during the incident was influenced by the immediate provocation and the
impact on his ego, contributing to a momentary lapse in judgment.

ISSUE III: WHETHER THE TRIAL COURT WAS RIGHT IN CONVICTING THE ACCUSED
UNDER SECTION 326 OF I.P.C

It is most humbly submitted before this Honourable Court that the trial court was erroneous in convicting the
accused under section 326 of the IPC as the ingredients of the section 326 were not fulfilled.

SECTION 326: FOR VOLUNTARILY CAUSING GRIEVOUS HURT BY DANGEROUS

WEAPONS

[2.1] Definition of Grievous Hurt and Dangerous Weapons:

1. "Grievous hurt has been defined under section 320 of the Indian Penal Code which reads as under:-

1.1. Section 320 Grievous hurt. The following kinds of hurt only are designated as "grievous" :-

34
Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653)

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 TC-C 27

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.

2. It is humbly submitted before this Hon'ble Court 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.

[2.2] Essentials of Voluntarily Causing Grievous Hurt by Dangerous Weapons or Means:

1. It is humbly submitted before this Hon'ble Court 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: by any instrument of stabbing, shooting or cutting: an

instrument, which if used as a weapon, can cause death of a person. by fire or any other heated
substance.by any poisonous or corrosive substance. by using any kind of explosive substances by
using substances which are hard to swallow or inhale by a human body.

3. In State of U.P. vs. Indrajeet Alias Sukhatha, (2000) (7) SCC 249), 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.

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 TC-C 28

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."

[2.3] The Act Cannot Be Considered as Voluntarily:

1. It is humbly submitted before this Hon'ble Court that the Explanation to Section 322 states that when a
person lacks intention while doing an act when he would not be considered to have voluntarily caused
grievous hurt.

2. It is further submitted before this Hon'ble Court that the medico legal examination is silent about damage
to any vital part of body.

3. Moreover There is a well-established principle, "Actus Non Facit Reum Nisi Mens Sit Rea," which, in the
literal sense means, an act does not make an offender liable without a guilty mind. The Intention or guilty
mind (Mens Rea) of the offender is an integral part while committing a crime.

4. It is further submitted before this Hon'ble Court that from the facts of the case it is evident that accused
did not have the mens rea to murder deceased as he did not used any weapon.

SECTION 322. Voluntarily causing grievous hurt-

Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause
is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous
hurt."

Explanation. A person is not said voluntarily to cause grievous hurt except when he both causes grievous.
hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause
grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually
causes grievous hurt of another kind.

[2.4] NO DEADLY WEAPON OR INSTRUMENT USED :

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In Anwarul Haq v. State of U.P. :

The expression “any instrument, which used as a weapon of offence, is likely to cause death” should be
construed with reference to the nature of the instrument and not the manner of its use. What has to be
established by the prosecution is that the accused voluntarily caused hurt and that such hurt was caused by
means of an instrument referred to in this section.

13. The section prescribes a severer punishment where an offender voluntarily causes hurt by dangerous
weapon or other means stated in the section. The expression “any instrument which, used as a weapon of
offence, is likely to cause death” when read in the light of marginal note to Section 324 means dangerous
weapon which if used by the offender is likely to cause death.

14. Authors of IPC observed, as noted below, the desirability for such severer punishment for the following
reasons:

“... Bodily hurt may be inflicted by means the use of which generally indicates great malignity. A blow with
the fist may cause as much pain, and produce as lasting an injury, as laceration with a knife, or branding
with a hot iron. But it will scarcely be disputed that, in the vast majority of cases, the offender who has used
a knife or a hot iron for the purpose of wreaking his hatred is a far worse and more dangerous member of a
society than who has only used his fist. It appears to us that many hurts which would not, according to our
classification, be designated as grievous ought yet, on account of the mode in which are inflicted, to be
punished more severely than many grievous hurts.”

In Mathai vs. State of Kerala35, (2005) 3 SCC 260 the Apex Court opined that the expression "any
instrument which, used as a weapon of offence, is likely to cause death" has to be gauged taking note of the
heading of the section. What would constitute a "dangerous weapon" would depend upon the facts of each
case and no generalisation can be made. In view of the judgments of Supreme Court in Anwarul Haq and
Mathai (supra), it is clear that the heading of Section 326 IPC is important. The heading talks about causing
grievous hurt by dangerous weapons or means. In view of the text and context, in which the words "any
instrument" are employed in Sec. 326, in my opinion, it cannot be treated as body part.

35
Mathai vs. State of Kerala, (2005) 3 SCC 260

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 TC-C 30

In Parahu v. State36, this Court opined that the instrument by virtue of its very nature should be such that
one could reasonably predicate that by its use as a weapon of offence, death would be probable. It was
something inherent in the instrument which rendered death probable.

The nature and gravity of injury alone is not sufficient to attract Sec. 326 unless it is shown that such
grievous hurt is by means of any instrument or weapon mentioned in the section.

it is clear that as per language employed in section 326 IPC, the body part cannot be treated as an instrument.
An instrument has to be an outside mean/weapon and cannot be a body part.

It is trite law that a penal provision must be construed strictly. Thus, as per the express languaged employed,
I am unable to hold that the expression "any instrument" includes kick, fist or any other body part. Thus, no
fault can be found in the order of the court below, whereby the accused were exonerated from the offence
under section 326 IPC because, admittedly, in the incident no weapon/ instrument was used.37

So, it is contented before this court that the word “fist” is not a deadly weapon, and the prosecution fails to
prove the guilt of the accused under this section as the ingredients are not fulfilled.

36
Parahu v. State, 1961 MPLJ SN 77
37
Kamla Bai vs Naresh, (2016) 160 AIC 50

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 TC-C 31

PRAYER

Wherefore in the radiance of the facts, issues raised, contentions progressed and authorities cited, the
counsel for the respondent modestly implores that the Hon’ble Court of may be pleased to:

1. Acquit Abhay Raichand of the offence punishable under Sections 326 of the Indian Penal Code,
1860.

AND/OR

Pass any such order, judgment, or direction that the Hon’ble Court deems fit in the best interests of
Justice, Equity and Good Conscience.

For this act of benevolence, the Counsels for the Respondent as in duty bound shall

forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT