1

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

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FOR OFFENCE CHARGE D UNDER

SECTION 302 r/w 34, 307 r/w 34

OF IPC, 1860

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STATE ………………………………………...APPELLANT

VERSUS

MR.SHYAM AND MR.SHAH

AND OTHERS………………………………………RESPONDENT

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MEMORIAL ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

 List of Abbreviation
 Index of Authority
* Table of cases
* Books
* Websites
* Statutes
 Statement of Jurisdiction
 Statement of Facts
 Issues Raised
 Arguments Advanced
 Prayer
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LIST OF ABBREVIATIONS

 & And
 A.P. Andhra Pradesh
 AIR All India Report
 ANR. Another
 CRPC Code Of Criminal Procedure
 IPC Indian Penal Code
 HON’ble Honorable
 E.G. Example
 NO. Number
 ORS. Others
 r/w Read with
 S./SEC Section
 SC Supreme Court
 SCC Supreme Court Cases
 St. State
 U/S Under Section
 V. Versus
 TN Tamil Nadu

INDEX OF AUTHORITIES
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TABLE OF CASES

1. Mahabub shah V. Emperor (1945)

2. Suresh and Anr V. State of Uttar Pradesh(2013)

3. Marinal Das V. State of Tripura (2011)

4. Nagaraja V. State of Karnataka (1994)

5. Girija Shankar V. State of Uttar Pradesh (2004)

6. K.M.Nanavati V. State of Maharashtra (1962)

7. R V. Duffy(1949)

8. Datta Genu Gaikwar V. State of Maharashtra (1973)

9. Bhura Ram and Ors V. State of Rajasthan and Anr (2008 )

10. . Surinder Kumar V. UT.Chandigarh (1989)

11. Sukhbir Singh V. State of Haryana (1989)

12. Perana V. Emperor(1936)

13. Sekar V. State(2002)

14. Suraj Dev V. The State(1993)

15. Jagtar Singh V. State of Punjab(1993)

16. . Basudev V. State of Pepsu(1956)

17. Dharam pal and Ors V. State of Uttar Pradesh(2008)

18. Tularam V. State of Madhya Pradesh,(2018)

19. . Kusa Majhi V. State of Orissa ,(1985)

20. Reg V. Govinda , (1876)

BOOK
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1. Ratanlal and Dhiralal’s THE LAW OF EVIDENCE

2. Justice M. Monir, revised by Deoti Nanda’s THE LAW OF
EVIDENCE
3. DR. S.R. Myneni’ THE LAW EVIDENCE
4. Ratanlal and Dhirala’s THE INDIAN PENAL CODE
5. Prof. T. Bhattacharya’s THE INDIAN PENAL CODE
6. K.D. Gaur’ THE INDIAN PENAL CODE
7. K.N. Chandrasekharan Pillai’s THE INDIAN PENAL CODE
8. Glanvile William’s TEXT BOOK OF CRIMINAL LAW
9. S.N. Misra’s THE CODE OF CRIMINAL PROCEDURE
10.Tandon’s THE CODE OF CRIMINAL PROCEDURE
11.V.N. Shukla’s THE CONSTITUTION OF INDIA
12.M.P. Jain’s INDIAN CONSTITUTIONAL LAW
13.DR.J.N. Pandey’s CONSTITUTIONAL LAW OF INDIA
14.Prof. K. Kasim IPS’s TAMIL NADU POLICE HANDBOOK

JOURNALS

1. All India Reporter

2. Supreme Court Cases
3. Indian Law Reporter

WEBSITES

1. WWW.legalserviceidia.com
2. https://www.juris.nic.in
3. https://www.lawnext.com
4. https://bwg.ipleaders.in/case-analysis
5. https://www.livelaw.com
6. https://www.sccouline.com
7. https://www.casemine.com
8. https://www.indiankannon.org

STATUES
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1. THE INDIAN CONSTITUTIONAL

2. THE INDIAN PENAL CODE,1860
3. THE CODE OF CRIMINAL PROCEDURE ,1973
4. THE EVIDENCE,1872.

STATEMENT OF JURISDICTION
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It is humbly submitted before the Hon’ble Court that the petitioner has approached this apex
Court under Article 136 of the Indian Constitution,

Article 136 of the Indian Constitution enshrines that:-

Special leave to appeal by the Supreme Court –

(1) Not with standing anything in the chapter, The Supreme Court may, in its discretion,
grant special leave to appeal from any Judgment, decree, determination, sentence or
order in any cause or matter passed or made any Court or Tribunal in the territory of
India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by Court or Tribunal constituted by or under any law relating to the
Armed Forces. The Respondent humbly submits before this Hon’ble Court that the
present petition of the Appellant is not maintainable

STATEMENT OF FACTS
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Mr. Shah, a farmer, is living with his wife (Mrs. Rama), son (Mr. Sohall) and daughter (Ms.
Sirisha) In a remote village of Andhra Pradesh, Mr. Shah with his meager source of income
was managing his family needs respectfully, While his wife (Rama) and his son (Sohall) help
him in his day to day work, His son Mr.sohall could not go to school because of his Father’s
poor financial position.

However, his daughter, Ms. Srisha joined a reputed engineering collage, in the nearby town,
with the financial support from the local business men. Ms. Shrisha’s collage is about 12km
away from her house. She used to go by public transport, like shared auto or by bus.

Mr. kiran, a boy living in the same village, is working as a data entry operator in a private
company in the town where Ms. Sirisha’s collage is located. Incidentally, both Mr. kiran and
Ms. Sirisha go to the town in the same public transport. While going to town and coming
back home, both got access and rapport to speak to each other, and eventually, both have
become good friends and started liking each other.

On 10th Aug, 2024, Mr. shah, after coming to know the intimate relationship that has
developed between Mr. kiran and his daughter, discussed the matter with his brother Mr.
shyam. Upon his advice, Mr. shah warned Mr. kiran with severe consequences and severely
admonished him. Mr. shah also scolded his daughter to refrain from meeting Mr. kiran.

Before this, Mr. sohall on an occasion took Rs.50,000/- (Rupees Fifty Thousands Only) from
Mr. kiran for same personal reasons. On August 17, 2014, Mr. Sohall called Mr. kiran to his
house to repay the loan amount Rs.50,000/- as full and final settlement. At about 8:30pm, on
the same day, when Mr. kiran came to Mr. Sohall’s house, everybody finished their dinner
and waiting for Mr. Kiran. Mr. Sohall gave Rs.50,000/- to Mr. kiran and asked him to leave
immediately.

While Mr. kiran was about to leave the place, Ms. Sirisha suddenly came running out of the
house and hugged him from behind. She was crying loud, requesting Mr. kiran to take her
with him away from her father’s house. Before Mr. kiran could gain senses from such a
sudden incident, Mr. Shah rushed to his daughter and dragged her inside the house and bolted
the doors from outside.

Mr. Shyam, (brother of Mr. shah), In a fit of anger, brought a lathi, usually available in every
house, and started beating Mr. kiran with lathi on his head and chest. Mr. Shah, shouted ‘kill
him’ Mr. Sohall caught hold of Mr. kiran to prevent his escape.
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In the meantime, Ms. Sirisha managed to escape from an open window and rushed to protect
her lover. Unfortunately, she also received three serious blows on her head and collapsed
unconscious. With the Intervention of neighbours, both were taken to the hospital where Mr.
Kiran survived but Ms. Sirisha died after 10 days of her admission in the hospital.

The post-mortem report confirmed that she suffered injuries on head and fracture of 3 ribs.
According to the post-mortem report ‘none of these injuries independently was sufficient to
cause her death’, while ‘they cumulatively were sufficient to caused death in the ordinary
course of nature’.

First Information Report (FIR) was registered under Section 154 of CRPC in police station
against Mr. Shyam (Accused 1), Mr. Shah (Accused 2) Mr. Sohall ( Accused 3) for the death
of Ms. Sirisha and for attempt to murder Mr. kiran.

The charges were framed against all the three accused under Section 302 r/w Section 34 of
Indian Penal Code, 1860 in relation to the death of Ms. Sirisha. And they were also charged
under Section 307 r/w Section 34 Indian Penal Code, 1860 for attempt to commit Murder of
Mr. kiran.

The sessions Court convicted them and imposed sentence of death for causing death of Ms.
Sirisha. They were also convicted for attempt to murder Mr. kiran and were sentenced to
7years imprisonment.

On appeal, the High Court confirmed the conviction of all the accused for ‘attempt to
Murder’ Mr. kiran and reduced the term of imprisonment of 5 years.

However, the High Court changed the conviction of all the accused for ‘Murder’ into offence
of ‘Culpable Homicide not amounting to murder’ for causing death of Ms. Sirisha as they
were under grave and sudden provocation, when Mr. kiran and the girls hugged each other in
their presence.

The state has preferred and appeal in Supreme Court challenging the order of High Court for
convicting them merely for ‘Culpable Homicide not amounting to murder’ but not for
‘murder’ of Ms. Sirisha.

All the three accused have also preferred cross appeals before the Supreme Court challenging
their convictions both for causing death of Ms. Sirisha and also for making an attempt to
murder Mr. kiran by High Court.
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Since all these facts and circumstances brought out in these appeals are part of the same
incident, the Supreme Court decided to hear and decided these appeals together.

ISSUES RAISED
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ISSUES 1: WHETHER MR.SHYAM (ACCUSED 1) , MR.SHAH

(ACCUSED 2) , AND MR.SOHALL(ACCUSED 3) CAN BE
PROCECUTED U/S 302 R/W SEC 34 OF THE INDIAN PENAL
CODE,1860?

ISSUES 2: WHETHER THE ACT OF MR. SHYAM , MR. SHAH

(ACCUSED 2), MR. SOHALL (ACCUSED 3) ARE AMOUNT TO
GRAVE AND SUDDEN PROVOCATION ?

ISSUES 3: WHETHER THE NATURE OF INJURIES AND WEAPON

AND SUCH AS TO CAUSE DEATH OF A PERSON ?

ISSUES 4:WHETHER MR. SHYAM (ACCUSED 1), MR. SHAH

(ACCUSED 2), MR. SOHALL (ACCUSED 3), ARE LIABLE FOR THE
DEATH OF MS.SIRISHA?

SUMMARY OF ARGUMENTS
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ISSUE 1:

WHETHER MR.SHYAM (ACCUSED 1) , MR.SHAH (ACCUSED 2) ,

AND MR.SOHALL(ACCUSED 3) CAN BE PROCECUTED U/S 302 R/W
SEC 34 OF THE INDIAN PENAL CODE,1860?

NO,

The Council for the Respondent Humbly submit before this Hon’ble Supreme Court that,
Mr.Shyam (A1) , Mr. Shah (A2) , and Mr. Sohall(A3) are not liable under Section 302 r/w
Section 34 of the Indian Penal Code,1860.

ISSUE 2:

WHETHER THE ACT OF MR. SHYAM , MR. SHAH (ACCUSED 2),

MR. SOHALL (ACCUSED 3) ARE AMOUNT TO GRAVE AND
SUDDEN PROVOCATION ?

YES,

The council for the Respondent Humbly submit before the Hon’ble Supreme Court that,
Mr.Shyam (A1) ,Mr.Shah (A2) ,Mr.Sohall (A3), are liable under Grave and Sudden
Provocation.

ISSUE 3:

WHETHER THE NATURE OF INJURIES AND WEAPON AND SUCH

AS TO CAUSE DEATH OF A PERSON ?

NO,

The council for the Respondent Humbly submit before the Hon’ble Supreme Court that, the
nature of injuries and the nature of weapon was such as not to cause death of a person.
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ISSUE 4:

WHETHER MR. SHYAM (ACCUSED 1), MR. SHAH (ACCUSED 2),

MR. SOHALL (ACCUSED 3), ARE LIABLE FOR THE DEATH OF
MS.SIRISHA?

NO,

The council for the Respondent Humbly submit before the Hon’ble Supreme Court that,Mr.
Shyam (A1 ), Mr. Shah (A2) , Mr. Sohall (A3) are not liable for the death of Ms. Sirisha.

ARGUMENT ADVANCED
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ISSUE 1:

WHETHER MR.SHYAM (ACCUSED 1) , MR.SHAH (ACCUSED 2) ,

AND MR.SOHALL(ACCUSED 3) CAN BE PROCECUTED U/S 302 R/W
SEC 34 OF THE INDIAN PENAL CODE,1860?

1.1 The council appearing on behalf of the respondent most respectfully submitted to this
Hon’ble Supreme court that,taking into consideration the statement of facts, it cannot be said
that accused 1,accused 2 and accused 3 had an intention to administer the use of lathi and
give blow to Ms.Sirisha and Mr.Kiran finally cause death of Ms.Sirisha.

1.2 Such an act in the spur of the moment does not attract heavy punishment and penalty
under relevant section of Indian Penal Code,which are:

1.3 SEC 3021 : PUNISHMENT FOR MURDER

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

1.4 Section 342 of IPC, 1860 : Common intention:

When a criminal act is done by several persons in furtherance of common intention of

all,each of such person is liable for that act in the same manner as if it were done by him
alone.

1.5 That there are umpteen number of reasons,which the council for the respondent most
humbly submits before this Hon’ble Supreme Court for proving the non culpability of

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1. Section 302 of IPC, 1860 - Punishment for Murder

2. Section 34 of IPC,1860 - Acts done by several persons in furtherance of common intention.

accused 1, accused 2 and accused 3 as per the above mentioned sections of the Indian Penal
Code,1860.
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1.6 That the contention of the appellant till now that there was common intention of accused
1, accused 2 and accused 3 to kill the deceased cannot be taken into consideration as they all
unarmed and finished their dinner and waiting for Mr.Kiran for the repayment of the amount.

1.7 In the case of Mahbub Shah Vs. Emperor 19453 and Chandrakant

Murgyappa umrani &Ors Vs. State of Maharashtra it was observed that “ to

invoke the aid of Sec 34 successfully, it must be shown that the criminal act of common
intention of all and care must be taken not to confuse same or similar intention with common
intention”. And this requirement was certainly not satisfied in the present case as there was
no dispute,malice requisite intention cannot be attributed to the accused.

1.8 Moreover in the majority view taken by Sethi,J & Aggarwal, J [as they then were]in
the case of Suresh and Anr Vs. State of UP4 it was held that “….intention is to be
judged by the act in relation to the surrounding circumstances…”

1.9 And such circumstances shows that it all happened in the heat of the moment without
predetermination of mind as Mr.Shyam take a lathi from the house which is a common
household item instead of a lethal weapon.

1.10 It was observed in the case of Marinal das Vs. State of Tripura5 that “….Sec
346 requires a pre-arranged plan and presupposes prior concert therefore there must be prior
meeting of minds &it can be developed at the spur of the moment but there must be pre-
arrangement or pre-mediation concept”.

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3. AIR 1945 47 B0MLR 941

4. AIR 201 3 SCC 673

5. AIR 2011 SC 3753

6. Section 34 of IPC, 1860- Acts done by several persons in furtherance of common intention

1.11 This is not in the present case as all of the accused their temper on seeing Ms.Sirisha
hugging Mr.Kiran .If it would have been pre-arranged or pre-mediated to murder the
deceased they would have armed themselves with sharp lethal weapons.
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1.12 That the Supreme Court has in Nagraja Vs. State of Karnataka 7held that “A
past enmity by itself,in our opinion, may not be a ground to hold for drawing any inference of
information of common intention among the parties”and in Girija Shankar Vs. State of

Uttar Pradesh8 it was held that “Section 349 is only a rule of evidence and does not create
a substantive offence” and that “The distinctive features of the Section of participation in
action”.

1.13 That having regard to the background in which occurrence has taken place the accused
were not actuated by common intention as if there would have been malice of killing them
they would have not call him to their house.

1.14 Thus it not only the prosecution which has gravely erred in invoking Section 34 against
the accused, but also the sessions courts which has passed an order of conviction under Sec
30210 r/w Sec 34 of the IPC.

1.15 It was Humbly submitted before this Hon’ble Court,that

Mr.Shyam ,Mr.Shah,Mr.Sohail, are not liable under Sec 302 of Indian Penal Code,1860,And
they are also not liable under Sec 34 which is not applicable in this case.

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7. AIR 1994 SC 27

8. AIR 2004 SC 1808

9. Section 34 of IPC,1860- Acts done by several persons in furtherance of common intention

10. Section 302 of IPC,1860- Punishment for murder

ISSUE 2:
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WHETHER THE ACT OF MR. SHYAM , MR. SHAH (ACCUSED 2),

MR. SOHALL (ACCUSED 3) ARE AMOUNT TO GRAVE AND
SUDDEN PROVOCATION ?

2.1 The council appearing on behalf of the respondent most respectfully submitted to this
Hon’ble Supreme court that, Mr. Shyam, Mr. Shah and Mr. Sohall is subject to liable under
the Grave and Sudden Provocation.

The Law governing homicide arising from “grave and sudden provocation” is outlined in
exception 1 of Sec 30011

2.2 Exception 1 of Section 300 IPC, 1860 - 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 death of the persons who gave the provocation or
causes the death of any other person by mistake or accident.

2.3 According to this provision , if an individual causes death while being “deprived of the
power of self-control due to a grave and sudden provocation”they commit culpable homicide
not amounting to murder.

* The provocation must be grave and sudden.

* The act must be committed in the heat of passion, which means the accused’s
mind is so disturbed that they lose their self-control.

* The provocation must be sufficient to lead a reasonable person to lose their

self-control and commit the act on the spur of the moment.

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11. Exception 1 of Section 300 of IPC,1860- When Culpable Homicide is not murder
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2.4 As per the fact of this case , it was clear that all the act takes place after Mr.Sirisha came
running out of the house and hugged Mr.Kiran from behind.

2.5 This act of Ms.Sirisha provocated the family members and the act was committed in the
heat of such moment that the family mind distrubed and they losed their self-control and
commit the act on the spur of the moment.

2.6 There was no reasonable opportunity for the family members to “cool off’” and regain
their composure after the provocation.The response of the family members to the provocation
is proportionate to the circumstances.

2.7 The sudden incident of Ms.Sirisha hugging Mr.Kiran which led an outbrust of emotions
from the accused,was an unexpected event that triggered their actions.

2.8 It refers to the situation where an individual, due to extreme emotional distress caused
by provocative actions or circumstances,loses self-control and commits a wrongful act that
they would not have committed otherwise. This phrase has been mentioned in Section 30012,
352 13and 35814 of IPC,1860.

2.9 Section 352 of IPC,1860 - Punishment for Assault or Criminal Force

otherwise than on Grave Provocation .

Whoever assaults or uses criminal force to any person otherwise than on grave and sudden
provocation given by that person, shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine which may extend to five hundred
rupees, or with both.

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12. Section 300 of IPC,1860- Murder

13. Section 352 of IPC,1860- Punishment for Assault or Criminal Force otherwise than on Grave provocation

14. Section 358 of IPC,1860- Assault or Criminal force on Grave Provocation

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2.10 Explanation- Grave and sudden provocation will not mitigate the punishment for an
offence under this section, if the provocation is sought or voluntarily provoked by the
offender as an excuse for the offence, or

If the provocation is 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, or

If the provocation is given by anything done in the lawful exercise of the right of private
defence.

Whether the provocation was grave and sudden enough to mitigate the offence, is a question
of fact.

2.11 Section 358 15of IPC, 1860- Assault or Criminal Force on Grave
Provocation.

Whoever assaults or uses criminal force to any person on grave and sudden provocation given
by that person, shall be punished with simple imprisonment for a term which may extend to
one month, or with fine which may extend to two hundred rupees, or with both.

2.12 Explanation - The last section is subject to the same explanation as Section 35216.

2.13 K.M.Nanavati Vs. State of Maharashtra17In this case Hon’ble Supreme Court
have summarized principles relating to “grave and sudden provocation”

1. The test of grave and sudden provocation is whether a reasonable man, belonging to the
same class of society as the accused, placed in the situation in which the accused was placed
would be so provoked as to lose his self-control.

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15. Section 358 of IPC,1860- Assault or Criminal force on Grave Provocation

16. Section 352 of IPC,1860- Punishment for Assault or Criminal Force otherwise than on Grave provocation

17. AIR 1962 SC 605

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2. In India, words and gestures may also, under certain circumstances, cause grave and
sudden provocation to an accused so as to bring his act within the First Exception to Section
300 of the Indian Penal Code.

3. The mental background created by the previous act of the victim may be taken into
consideration in ascertaining Whether the subsequent act caused grave and sudden
provocation for committing the offence.

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

5. Provocation that is grave and sudden can stem from words and gestures as well,

2.14 The definition of "sudden and temporary loss of control" from R Vs. Duffy18 is still
considered good law. However, some say that the law on provocation may be discriminatory
against women, as it may be difficult for them to obtain equal treatment with men. This is
because male judges may be less able to empathize with the "slow burn" anger that women
experience.

2.15 The test of whether a certain provocation is grave and sudden is a subjective one, with
special emphasis on the context of the provocation and the societal background of the
accused. The accused must have been in a position that does not leave with him the
possibility of rational thought. This implies that if the accused, at the sight of someone who
earlier committed an act, irrespective of how grave, loses control and causes death, s/they
cannot avail the defence under the exception, as per the Supreme Court in Dattu Genu

Gaikwas Vs. State of Maharashtra (1973)19.

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18. AIR 1949 1ALL ER 932

19. AIR 1973 SC 387

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2.16 Another aspect of their mental state is the lack of preparation on their part. The
provocation must come unexpectedly; hence, the provision that the provocation must not be
sought by the accused and must not be expected in any manner. This was reaffirmed by the
Supreme Court in Bhura Ram & Ors. Vs. State of Rajasthan & Anr. (2008)20

2.17 According to the Post-mortem Report “none of these injuries independently was
sufficient to cause her death”

It was mentioned that the injuries caused due to the sudden provocation of the family
members independently is an insufficient cause of her death .Hence the injuries caused by the
accused is not the reason for her death.

2.18 Medical evidence also comes under Sec 4521 of the Indian Evidence Act.Thus,doctor’s
evidence is opinion evidence and therefore, a relevant fact.

2.19 It was Humbly submitted before this Hon’ble Court,that

Mr.Shyam ,Mr.Shah,Mr.Sohall, are liable under Grave and Sudden Provocation.

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20. AIR 2008 SC 587

21. Section 45 of IPC,1860- Life

ISSUE 3:
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WHETHER THE NATURE OF INJURIES AND THE NATURE OF

WEAPON WAS SUCH AS TO CAUSE DEATH OF A PERSON ?

3.1 The council appearing on behalf of the respondent most respectfully submitted to this
Hon’ble Supreme court that, the nature of injuries and the nature of weapon was such as not
to cause death of a person.

3.2 Whereas the fact is, According to the post-mortem report ‘none of these injuries
independently was sufficient to cause her death’, while ‘they cumulatively were sufficient to
caused death in the ordinary course of nature’.

3.3 So it was clearly understandable that the post-mortem report is saying that the nature of
injury is and the nature of weapon was not to cause the death of the person.

3.4 That it is pertinent to mention that in the case of Surinder Kumar Vs. UT
Chandigarh 22the Supreme Court has held"... that if on a sudden quarrel a person in the
heat of the moment picks up a weapon which is handy & causes injuries out of which only
one prove fatal, he would be entitled to the benefit of the exception." It was further held that"
the number of wounds caused during the occurrence in such a situation was not the decisive
factor what was important was that the occurrence had taken place on the account of a sudden
and un predetermined fight & the offender must have acted in a fit of anger." There was
absolutely no intention to kill the deceased on the part of the Respondent. Admittedly, none
of the respondent were carrying a weapon of such lethality which could show their intent to
commit an offence such as the present one.

3.5 Exception 4 of Section 30023 IPC, 1860

Culpable homicide is not murder if it is committed without premeditation in a sudden fight,

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22. AIR 1989 2 SCC 217

23. Exception 4 of Section 300 of IPC,1860- Culpable Homicide is not murder

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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.

3.6 EXPLANATION - It is immaterial in such cases which party offers the provocation
or commits the first assault.

3.7 In Sukhbir Singh Vs. State of Haryana24 the Supreme Court held that " ..All
fatal injuries resulting in death cannot be termed as cruel or unusual for the purpose of not
availing the benefit of Exception 4 of Section 30025 IPC". After the injuries were inflicted
and the deceased had fallen down, the respondent are not shown to have inflicted any other
injury him. With regard to the facts on record it is clearly shown that in the heat of passion
upon a sudden provocation, respondent with lathi not being a lethal weapon caused injuries at
random and thus did not act in a cruel or usual manner.

3.8 In Perana Vs. Emperor26 It was observed that" the use of lathi is certainly
dangerous but is not so dangerous that one would suppose that anybody would be in the
ordinary course think that death is a probable cause of use of lathi. Our experience is that
lathis are frequently used and result in nothing more than injuries which are simple hurts or at
the most grievous hurts"

3.9 In the facts it is clearly shown that the incident is heat of the moment of provocation after
seeing Mr. Kiran and Ms. Sirisha hugging each other and they used lathi which is used in
every house holding village, on the provocation of seeing that they are reacted in such
manner there was no intention to hurt them.

24. AIR 1989 2 SCC 217

25. Exception 4 of Section 300 of IPC,1860- Culpable Homicide is not murder

26. AIR 1936 164IND

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27
3.10 That in Sekar Vs. State the Supreme Court convicted the accused under
Exception 4 of Section 30028 IPC instead of Section 30229 where the deceased fell on the
ground after the accused had given injuries on his head and, left shoulder, accused again
inflicted another blow on his neck.

3.11 In the same situation in our case is also comes under Exception 4 of Section 300 of IPC
instead of Section 302 where the deceased is also received three serious blows on her head
and collapsed unconscious. Ms. Sirisha suffierd injuries on head and fracture of 3 ribs.

3.12 When there was only extortion by one of the accused and a wooden log was hit on the
head of the deceased which is a vital part of the body, the case was found to be under section
304 and not one under section 302 in Suraj Dev Vs. The State30 (Delhi Admn) Taking into
consideration the aforesaid case it is pertinent to reiterate that the appellants also used a lathi
and not any lethal weapon..

3.13 In Jagtar Singh Vs. State of Punjab31, the accused had in the spur of the
moment inflicted a knife blow in the chest of the deceased. The injury proved fatal. The
doctor had opined that the injury was sufficient in the ordinary course of nature to cause
death.

3.14 The Supreme Court observed that ... the quarrel was of trivial nature, in these
circumstances, it is a permissible inference that the appellant at least could be imputed with
the knowledge that he was likely to cause death and the court altered conviction from Section
302 to Section 30432 Part II of the IPC, 1860.

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27. AIR 2002 8 SCC 354

28. Exception 4 of Section 300 of IPC,1860- Culpable Homicide is not murder

29. Section 302 of IPC,1860- Punishment for Murder

30. CRL Appeal No. 103 of 2009

31. AIR 1993 SC 970

32. Section 304 of IPC, 1860- Punishment for Culpable Homicide not amounting to Murder.
 25

3.15 The facts on record show that none of the injuries by itself was sufficient to cause death
but were only cumulatively sufficient to cause death.

3.16 It was Humbly submitted before this Hon’ble Court ,that the nature of injuries and the
nature of weapon was such as not to cause death of a person.

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 26

ISSUE 4:

WHETHER MR. SHYAM (ACCUSED 1), MR. SHAH (ACCUSED 2),

MR. SOHALL (ACCUSED 3), ARE LIABLE FOR THE DEATH OF
MS.SIRISHA?

4.1 The council appearing on behalf of the respondent most respectfully submitted to this
Hon’ble Supreme court that, Mr. Shyam, Mr. Shah and Mr. Sohall are not liable for the death
of Ms. Sirisha.

4.2 In the fact of the case is Mr. Sohall gave Rs. 50,000/- to Mr. Kiran and asked him to
leave immediately. While Mr. Kiran was about to leave the place, Ms. Sirisha suddenly came
running out of the house and hugged him from behind.

4.3 After seeing him in that way Mr. Shyam , Mr. Shah and Mr. Sohall are provoked and the
act was done by the heat of the moment. They are not prepare and no intention to kill her. So
it is not a murder.

4.4 SECTION 29933 OF IPC,1860 -CULPABLE HOMICIDE

Whoever causes death by 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.

As per the fact they are seeing Mr. Kiran and Ms. Sirisha hugging each other it was provoked
them to do such act. As per the section 299 in our case they have the knowledge that such act
is causing bodily injury or to cause death. There must be a lack of intention and preparation is
here. So they are not liable for the murder of Ms. Sirisha.

4.5 EXCEPTION 4 OF SECTION 30034 OF IPC

Culpable homicide is not murder if it is committed without premeditation in a sudden fight,

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33. Section 299 of IPC, 1860- Culpable Homicide

34. Exception 4 of Section 300 of IPC,1860-Culpable Homicide is not murder

 27

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.

4.6 EXPLANATION- It is immaterial in such cases which party offers the provocation or
commits the first assault.

4.7 The essential ingredient of crime blameworthy condition of mind. Its

absence cannot make a person liable.

Stages of Crime:

1) The intention is the first stage of a crime.

2) Preparation is the second stage of crime.

3) The third stage is an attempt. It is direct movement of an Act towards execution of

an Act after preparation of the plan.

4) The fourth stage is the accomplishment

In this ingredient of crime there was clearly mentioned about intention is the first stage of a
crime and preparation is the second stage of crime. In our fact of the case is there was no
intention in between them to causing death of Ms. Sirisha.

4.8 Mens rea

An Act becomes a crime when it is committed with evil intention. Evil intention or guilty
mind is essential to commit a crime otherwise a person cannot be held liable and punished.
Mens rea is based on a well-known maxim. Actus non facit reum nisi mens sit rea which
means Act does not make a man guilty unless his intention was so. Earlier in English criminal
law, there was no distinction between crime and tort. Criminal law was based on strict
liability and punishment in those days was mainly in the form of monetary compensation.
Therefore mental element in crime was irrelevant but later bodily punishment came in
substitute of damages. Now from here, mens rea got importance. Mental element in crime

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 28

was recognised as this time With the passage of the time, mens rea become an element in
deciding crime. For any criminal liability, the Act should be voluntarily committed. No
person can be held liable for an Act done under any fear or compulsion. For example, A
points revolver on B and say to open the lock of the house of C. Here B Act is not voluntary
but it was against his will. Intention and motive is a different element of a crime Motive may
be good or bad but if the Intention is not good then the person is held liable for the crime.

4.9 The Basudev Vs. State Of Pepsu35 case is a landmark judgment that relates to
mens rea. It states that an accused should not be found guilty of an offense unless they have a
guilty mind, unless the statute explicitly or implicitly rules out mens rea as an element of the
crime.

4.10 There was no Mens Rea in this case. Whether there is a crime arise there must be an
important part is Mens Rea and Actus Reus. In this one Actus Reus is present which is after
seeing Mr. Kiran and Ms. Sirisha is hugging each other. On that incident is trigger them to do
that act.

4.11 So according to the given fact we clearly understand that A1, A2 and A3 has no
intention and to do any preparation to cause the death of Ms. Sirisha.

4.12 In the case of Dharam pal and others. Vs. State of Uttar Pradesh (2008)36,
the court held that there was no premeditation by the accused and the fight started in the area
where the hand pipe was situated after the exchange of excuses between the deceased and the
accused.The Court could not gather any intention of the accused to cause the death of the
deceased. He was made liable under part 2 of section 304 since fell under exception 4 of
section 300.

4.13 Further, in the case of Tularam Vs. State of Madhya pradesh (2018)37, the
facts were quite similar. There was a quarrel between two people which escalated into an
altercation and joined by a few family members with lathis and ballam. During this

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35. AIR 1956 SCR 363

36. AIR 2008 SC 920

37. AIR 2018 SC 2146

 29

altercation, appellants pierced B with a ballam on his left chest. The supreme Court held that
all the ingredients of Exception 4 of section 300 38 are present, as the fight was sudden and not
premeditated . There was no intention on the part of the appellant to cause death or such
bodily injury, but they had knowledge that piercing the the chest with a ballam would cause
bodily injury as is likely to cause death. Thus, conviction was converted from section 302 39 to
part 2 of section 30440 and his sentence was altered to a period of incarceration already
undergone since he spent 14 years in the prison.

4.14 Kusa Majhi Vs. State of Orissa (1985)41

In this case, a mother who was deceased warned her son not to go fishing with his friends.
The son, out of anger, brought an axe and gave her blows, due to which she died.

The case was considered culpable homicide, not amounting to murder as it has caused bodily
injury that was likely to cause death. The court also noted that It was out of a sudden moment
and not pre-planned.

4.15 Reg Vs. Govinda (1876)42

In this case, husband and wife had a fight wherein the accused, who was the husband,
knocked down his wife and gave her two to three violent blows on her face that resulted in
extra version of blood in her brain. As a result, the wife died.

Since the act was not done with the intention of causing death, and the court also noticed that
bodily injury was not sufficient in the ordinary course of action to cause death, the accused
was held liable for culpable homicide not amounting to murder.

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38. Exception 4 of Section 300 of IPC,1860-Culpable Homicide is not murder

39. Section 302 of IPC,1860- Punishment of Murder

40. Section 304 of IPC,1860- Punishment for Culpable Homicide that doesn’t amount to murder

41. AIR 1985 CRILJ 1460

42. AIR 1876 ILR 1BOM342

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4.16 SECTION 304 43OF IPC,1860- PUNISHMENT FOR CULPALBE

HOMICIDE NOT AMOUNTING TO MURDER .

Whoever commits culpable homicide not amounting to murder, shall be punished with
imprisonment for life, or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with
fine, or with both, if the act is done with the knowledge that It is likely to cause death, but
without any intention to cause death, or to cause such bodily injury as is likely to cause death.

4.17 It was humbly submitted that,Mr. Shyam, Mr. Shah, Mr. Sohall are not liable for the
death of Ms. Sirisha.

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43. Section 304 of IPC,1860- Punishment for Culpable Homicide not amounting to murder .
 31

PRAYER

WHEREFORE, in the lights of the facts used, issued raised, arguments advanced and
authorities cited the counsel for the respondent most humbly and respectfully prayed
before this HON’BLE SUPREME COURT that it may be graciously pleased to

1. Acquit Mr. Shyam (Accused 1), Mr. Shah ( Accused 2),and Mr. Sohall
(Accused 3) for murder under section 302 r/w section 34 of IPC,1860

2. The act of Mr. Shyam (Accused 1), Mr. Shah (Accused 2) and Mr.Sohall
(Accused 3) was due to the grave and sudden provocation.

3. Reduce the sentence of the respondents.

4. Mr. Shyam (Accused 1), Mr. Shah (Accused 2) and Mr.Sohall (Accused 3) are
not liable for the death of Ms. Sirisha.

The court may also be pleased to pass any other, which this HON’BLE may deem fit in
the light of Justice Equity, and good conscience. For this act of kindness, the counsel
shall duty bound forever pray all of which is respectfully submitted counsels for the
Respondent.