SCHOOL OF LAW

UNIVERSITY OF KASHMIR, HAZRATBAL,

SRINAGAR, JAMMU & KASHMIR - 190008

MOOT MEMORIAL

NAME: IFFLA FIRDOUS

COURSE: BA.LLB

SEMESTER: 7th

ENROLLMENT NUMBER: 16042122021

TEACHER INCHARGE: IFTIKHAR AHMAD BHAT

 BEFORE THE HONOURABLE HIGH COURT OF DELHI AT NEW DELHI

(APPEAL FILED UNDER SECTION 374 OF THE CRIMINAL PROCEDURE CODE)

CRIMINAL APPEAL NO.________/2020

SUKHDEV APPELLANT

v.

STATE (NCT OF DELHI) RESPONDENT

BEFORE SUBMISSION TO HON’BLE JUSTICE & HIS COMPANION JUSTICE

OF
THE HON’BLE HIGH COURT OF DELHI

WRITTEN SUBMISSION
ON BEHALF OF
THE COUNSEL FOR THE APPELLANT

MEMORANDUM ON BEHALF OF THE APPELLANT

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MEMORIAL FOR THE APPELLANT
 TABLE OF CONTENTS

1. TABLE OF CONTENTS…………………………………………………………2

2. LIST OF ABREVIATIONS………………………………………...……………3

3. INDEX OF AUTHORITIES……………………………………………….......4-6

4. STATEMENT OF JURISDICTION…………………………………….............7

5. STATEMENT OF FACTS…………………………………………………........8

6. ISSUES RAISED………………………………………………………………...9

7. SUMMARY OF ARGUMENTS……………………………………………….10

8. DETAILED ARGUMENTS..……………………………………………….11-22

9. PRAYER…………………………………………………………………………23

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MEMORIAL FOR THE APPELLANT
 LIST OF ABREVIATION

1. & ……………………………………………………………………………………….. And

2. AIR ……………………………...……………………………...………...All India Reporter

3. Anr…………………………………………………………………………………...Another

4. All……………………………………………………………………………….…Allahabad

5. A.L.J…………………………………………………………………Allahabad Law Journal

6. A.P.………………………………………………………………………..…Andhra Pradesh

7. Cri…………………………………………………………………………………..Criminal

8. Ed……………………………………………………………………………………..edition

9. Exc……………………………………………………...………………….………Exception

10. Hon’ble…………………………………………………………………………...Honourable

11. ILR………………………………………………………………..……Indian Law Reporter

12. IPC………………………………………………………………………..Indian Penal Code

13. J………………………………………………………………………….…………....Justice

14. Jour…………………………………………………………………………………...Journal

15. LJ …………………………………………………………………………….... Law Journal

16. MP ……...…………………………………………………….…………….Madhya Pradesh

17. No …………………………………………………………………………….......... Number

18. Ors………………………………………………………………………………….…Others

19. p………………………………………………………………………………………... page

20. Punj……………………………………………………………………………………Punjab

21. Para………………………………………………………………………...……… Paragraph

22. S.C………………………………………………………………………….... Supreme Court

23. SCC………………………………………………………….................Supreme Court Cases

24. Sec……………………………………………………………………………………..Section

25. UT………………………………………………………………………….….Union Territory

26. v………………………………………………………………………………...….……versus

27. Vol…………………………………………………………………………………..…volume

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MEMORIAL FOR THE APPELLANT
 INDEX OF AUTHORITIES

BOOKS

1. Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code,
Vol I, Bharat Law House, Delhi, 27th Edn. 2013.

2. Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code,
Vol II, Bharat Law House, Delhi, 27th Edn. 2013.

3. K I Vibhute, P.S.A Pillai’s Criminal law, Lexis Nexis, 12th Edn. 2014.

4. J C Smith, Smith and Hogan Criminal Law – Cases and Materials, LexisNexis
Butterworths, 8th Edn. 2002.

5. Dr. (Sir) Hari Singh Gour, Penal Law of India, Law Publishers (India) Pvt. Ltd., 11th
Edn. 2014.

6. Basu’s Indian Penal Code (Law of Crimes), Vol I., Ashoka Law House, 11th Edn.
2011.

JOURNALS USED:

1. Journal of the Indian Law Institute Vol. 5, No. 3 (July-Sept., 1963), pp. 319-356
2. SSRN Electronic Journal IV(I):28-44 · April 2019

WEBSITES USED:

1. http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=3161
2. https://lawnn.com/murder-section-300-definition-meaning-exceptions-
punishment-section-302/

LEGAL DATABASE USED

1. Manupatra
2. SCC Online
3. Judis
4. Indian Kanoon

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MEMORIAL FOR THE APPELLANT
CASES

1. Surain Singh Vs. State of Punjab reported in (2017) 5 SCC page 796
2. State of Andhra Pradesh v Rayavarapu Punnaya & Anr (1976) 4 SCC 382
3. Chamru, Son of Budhwa vs. State of Madhaya Pradesh AIR 1954 SC 652
4. Rustam Ali and Ors. vs. State of Assam
5. Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P (2006) 11 SCC 444
6. Rakesh alias Commando vs. State
7. K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605: (1962 (1) Cri LJ
521)
8. Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217
9. Banwari (Jail Appeal) vs. State of U.P decided by Allahabad High Court
10. Kishore Singh v. State of Madhya Pradesh, 1977 Supreme Court Cases (Cri)
656
11. Dayal v. State of Madhya Pradesh, AIR 1994 SC 30
12. Charanjit Singh and Another… vs. State of Haryana
13. Kunhayippu v. State of Kerala 2000 10 SCC 307
14. Masumsha Hasanasha Musalman v. State of Maharashtra 2000 3 SCC 557
15. Mahmood (1961) A.L.J 209 at p. 213
16. Hafizullah v. State
17. Mancini v D.P.P
18. Atma Ram v. State AIR 1967 Punj 508
19. Amarjit Singh v State AIR 1970 Punj 279
20. Re Fakirappa Yellappa Tukkappanawar
21. Pulicherla Nagaraju Alias Nagaraja Reddy v. State of A.P. 2006 11 SCC
22. Empress v Khogayu has observed, [1879] 2I.L.R. Madras 122 at p. 123
23. Gurya Bucha v. State of Gujrat, V.B. Raju
24. Mrinal Dhali v. State of Uttarakhand AIR 1961 All 538 at p. 539

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MEMORIAL FOR THE APPELLANT
STATUTES

1. CODE OF CRIMINAL PROCEDURE, 1973

2. INDIAN PENAL CODE, 1860.
3. INDIAN EVIDENCE ACT, 1872.

DICTIONARIES

1. Bryan A. Garner, Blacks Law Dictionary (8th ed. Thomson West, 2004).

2. Curzon l.b., Dictionary of Law, (Pitman Publishing, New Delhi, 4thed, 1994).

3. Aiyar P. Ramanatha, The Law Lexicon: the encyclopedia law dictionary with
legal maxims, latin terms, words & phrases, (Delhi Law House, Delhi, 2nd ed.,
1997).

4. Oppe A.S., Wharton’s law lexicon, (Sweet & Maxwell, New Delhi, 14th ed.,
1997).

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MEMORIAL FOR THE APPELLANT
 STATEMENT OF JURISDICTION

The Appellants Humbly approach the Hon’ble High Court of Delhi under S.374(2)1 of the
Code of Criminal Procedure, 1973, which reads as follows:

________
1. S.374. Appeals from conviction
1. Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme
Court.
2. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in
which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the
same trial may appeal to the High Court.
3. Save otherwise provided in sub-section (2), any person,
a. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the
second class, or
b. sentenced under section 325, or
c. in respect of whom an order has been made or a sentence has been passed under section 300 by any Magistrate, may appeal to
the court.’
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MEMORIAL FOR THE APPELLANT
 STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court the facts of the present case are
summarise as follows:

1. That, the appellant – Sukhdev lived with his wife Neeti and they shared a strained
relationship.

2. That, he and his wife were often involved into a squabble about how the cash was being
spent by the family. Appellant had repetitively affirmed his wife, Neeti, for being
excessive past cutoff points and extravagant beyond their limits.

3. That the wife in contrast to this blatantly disregarded and made disrespectful claims
mocking the appellant regarding his insufficiency to earn enough money for sustaining
and continuing his family appropriately.

4. The wife exploitatively denounced the appellant that he was thoroughly dishonest with
her as he did not give her all money that he earned and spent it elsewhere.

5. After continuously witnessing such a behaviour from his wife, the Appellant at one
point got extremely incensed and furious at his wife and took a sword which he had
kept over the mantle-piece and began to chase her.

6. The wife came up short on the front entryway ran out of the front door, down the steps,
stumbled, and tripped down injuring her nose.

7. Exactly at that point, Appellant tossed and threw the sword at her which missed her
since she had fallen but entered the abdomen of a person who was going in the road in
front of the house. he person died instantaneously of a ruptured spleen.

8. Sukhdev was indicted and prosecuted under section 302 and 325 of IPC and was
punished under both the sections i.e., life imprisonment and for two-years
imprisonment respectively.

9. Sukhdev has appealed to the High court of Delhi against his conviction and sentence.

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MEMORIAL FOR THE APPELLANT
 STATEMENT OF ISSUES

1. WHETHER IT IS A CASE OF CULPABLE HOMICIDE OR MURDER?

2. WHETHER THE ACT OF ACCUSED FITS IN SUDDEN AND GRAVE

PROVACATION CLAUSE?

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MEMORIAL FOR THE APPELLANT
 SUMMARY OF PLEADINGS

I. WHETHER IT IS A CASE OF CULPABLE HOMICIDE OR MURDER?

It is humbly submitted before the Hon’ble Court that in the present case all the facts and
circumstances sufficiently establishes the guilt of the accused for culpable homicide. The chain
of circumstantial evidence as formed by the prosecution has been established beyond all
reasonable doubt that the accused is guilty of a culpable homicide.

II. WHETHER THE ACT OF ACCUSED FITS IN SUDDEN AND GRAVE

PROVACATION CLAUSE?

It is most humbly submitted before this Hon’ble High Court that the act of the appellant was
not out of the grave and sudden provocation on part of the deceased but however it was only
the end result of the acts of his wife which amounted to grave and sudden provocation. The act
of the appellant was not pre-mediated and orchestrated with a well-defined Modus Operandi.

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MEMORIAL FOR THE APPELLANT
 DETAILED ARGUMENTS

WHETHER IT IS A CASE OF CULPABLE HOMICIDE OR MURDER?

Your Honour, it is humbly contended that the Hon’ble Sessions Court has held the Appellants
as guilty of murder of the deceased under Sec 302 read with Sec 325 of the IPC. Sec 300 of
IPC gives the definition of murder and enumerates the ingredients of the offence. Sec 300 of
IPC contemplates under what situation/s will a person be held guilty of a murder.

Except in the cases hereinafter excepted, culpable homicide is murder,

I) If the act by which the death is caused is done with the intention of causing death, or-
II) 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,
III) 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
IV) 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.

Your Honour, looking at the exceptions mentioned here above, it is pertinent to add here that
for a crime to be constituted both the intention and the act must concur. It must be taken into
consideration with what amino the act has been done by the appellant as there is not any ex-
voluntate on part of the appellant to substantiate the necessary evidence against him. It is only
after understanding why he done such an act in facts as well as judgement in order that it may
be determined accordingly as to what action and what punishment should follow.

In the case of Surain Singh Vs. State of Punjab reported in (2017) 5 SCC p. 796 in para nos.
12, 13 and 14 has made observations stating if the act by which the death is caused is done
with the intention of causing death, only then the homicide is a murder. Looking at the facts
of the case, the main question is whether the act done by the appellant was done intentionally
or accidentally.

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MEMORIAL FOR THE APPELLANT
In the case of State of A.P v Rayavarapu Punnaya & Anr (1976) 4 SCC 382 decided by the
Supreme Court, following observations by the court were made:

“Whenever a court is confronted with the question whether the offence is murder or culpable
homicide not amounting to murder, on the facts of a case, it will be convenient for it to
approach the problem in three stages. The question to be considered at the first stage would
be, whether the accused has done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused and the death, leads to the
second stage for considering whether that act of the accused amounts to culpable homicide as
defined in Section 299. If the answer to this question is prima facie found in the affirmative,
the stage for considering the operation of Section 300 of the Penal Code, is reached. This is
the stage at which the court should determine whether the facts proved by the prosecution
bring the case within the ambit of any of the four clauses of the definition of murder contained
in Section 300. If the answer to this question is in the negative the offence would be culpable
homicide not amounting to murder, punishable under the first or the second part of Section
304, depending, respectively, on whether the second or the third clause of Section 299 is
applicable.”

The liability to convict an individual depends not only on him having done some outward acts
which the law forbids but on his having done them in a certain frame of mind or certain will.
The mental element is missing in this case which is important to build a criminal
responsibility. The appellant while acting in a particular way did not intend to cause certain
consequences and had unforeseen the likeliness of the consequences. There was no intention
on part of the appellant to cause such damage.

In the case of Chamru, Son of Budhwa vs. State of Madhaya Pradesh AIR 1954 SC 652,
decided by Supreme Court of India. It was held. "When it is reasonably doubtful upon the
evidence of the prosecution whether this intention is present, then the accused is entitled to
the benefit of that reasonable doubt and he must be acquitted of the charge of murder even if
he is to be convicted of the charge of culpable homicide not amounting to murder." The same
decision has been given in Rustam Ali and Ors. vs. State of Assam which was decided by the
Gauhati High Court.

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MEMORIAL FOR THE APPELLANT
Your Honour, looking at the legal definition of the term intention it means purpose or design
with which an act is done, having foreknowledge of the act coupled with the desire for it.
Unlike as in intention, the appellant did not choose the victim, decide, resolve to bring a
prescribed harm into being and consciously employed means to that. In the scuffle between
the couple, it is quite obvious for any person to realize that the appellant was not having any
intention to bring and cause harm to the deceased. It is not possible for anyone, let alone the
appellant, to have anticipated the deceased would be walking on the street and he would attack
on him there only.

The Apex Court in (2006) 11 SCC 444 Pulicherla Nagaraju alias Nagaraja Reddy v. State
of A.P. had observed as under: The intention to cause death can be gathered generally from a
combination of a few or several of the following, among other, circumstances: nature of the
weapon used; whether the weapon was carried by the accused or was picked up from the
spot; whether the blow is aimed at a vital part of the body; the amount of force employed in
causing injury; whether the act was in the course of sudden quarrel or sudden fight or free
for all fight; whether the incident occurs by chance or whether there was any pre-
meditation; whether there was any prior enmity or whether the deceased was a stranger;
whether there was any grave and sudden provocation, and if so, the cause for such
provocation; whether it was in the heat of passion; whether the person inflicting the injury
has taken undue advantage or has acted in an unusual manner; whether the accused dealt
a single blow or several blows. The above list of circumstances is, of course, not exhaustive
may throw light on the question of intention. Same has been cited in Rakesh alias Commando
vs. State decided by the Delhi High Court.

Your Honour, the weapon was not carried by the appellant and picked up from the spot. The
act was done in sudden fight and pre-mediation was absent. There was no prior enmity of the
appellant with the deceased as they did not know each other and were complete strangers for
each other. Supreme Court in the case of K. M. Nanavati v. State of Maharashtra, AIR 1962
SC 605: (1962 (1) Cri LJ 521), held that after a sudden quarrel and having lost her power of
self-control by the grave and sudden provocation offered by the deceased himself by his
aforesaid acts, the appellant killed her husband in painful circumstances. The offence would
thus be one of culpable homicide not amounting to murder punishable under Section 304, Part
I of the Code as Exception 1 to Section 300 of the Code would apply to the facts of the case.

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MEMORIAL FOR THE APPELLANT
In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217, Supreme Court held
that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is
handy and causes injuries out of which only one proves fatal, he would be entitled to the
benefit of the Exception provided he has not acted cruelly. This Court 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 account of a sudden and
unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the
provision of Exception 4 to Section 300, this Court has observed so. The same was decided in
Banwari (Jail Appeal) vs. State of U.P decided by Allahabad High Court.

In Kishore Singh v. State of Madhya Pradesh, 1977 Supreme Court Cases (Cri) 656, Hon'ble
Supreme Court has observed that if the prosecution fails in establishing any one of the four
clauses of Section 300 IPC, namely firstly to fourthly, the charge of murder would not be
made out and the case may be one of culpable homicide not amounting to murder as described
under Section 299, IPC. Same has been Cited in Mrinal Dhali v. State of Uttarakhand decided
by the Uttarakhand High Court

Further, your Honour, in the exceptions to when a Culpable Homicide is not Murder; the
following are important to be connected with the case.
I) Culpable Homicide is not murder if the offender, whilst deprived of his power
of self-control by the sudden and grave provocation, causes the death of person
who gave the provocation or causes the death of any other person by mistake or
accident.

Your Honour, I will further subject this exception with the following proviso, which reads as:
“That the provocation is not sought or voluntarily provoked by the offender as an
excuse for killing or doing harm to any person.”

The incident solely took place after provocation from the wife and the deceased happened to
have faced the brunt of it unintentionally. It cannot be said so that the husband had initiated
the quarrel only to know the deceased would pass by the street at that time only. It is
impossible for a person to predict such an event and plan his act accordingly.

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MEMORIAL FOR THE APPELLANT
Further, Your Honour, in another exception to when a Culpable Homicide is not Murder; the
following are important to be connected with the case.

II) 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 having taken undue advantage or acted in a cruel or unusual manner.

In Dayal v. State of Madhya Pradesh, AIR 1994 SC 30, the appellant on being deprived of
self-control by this act of grave and sudden provocation, took a knife which was lying nearby
and stabbed the deceased. The Supreme Court in this case held that the appellant is entitled
for Exception-1 to Section 300 IPC and this case falls under Culpable Homicide and could not
have been sentenced under Section 302 IPC. Similar decision has been cited in Charanjit
Singh and Another… vs. State of Haryana decided by the Punjab & Haryana High Court.

The intention to kill can be inferred from the murder and nature of the injuries caused to the
victim. It is humbly contended by the Appellant that there was no intention based on the
appellant to bring any harm to the deceased. The appellant acted in a fit of rage and acted
spontaneously. There was no intention of the appellant of murdering the deceased and this can
also be established by a chain of circumstantial evidence.

Sec 8, Indian Evidence Act stipulates that any fact is relevant which shows or constitutes
motive or preparation for any fact in issue or relevant fact. It is further pertinent to note with
reference to the case that there is no motive on part of the appellant while he had done the act,
then it should fall in the category of a culpable homicide.

Your Honour, the appellant did not have the pre-intention of killing the deceased which is
necessary to establish a murder and it happened as a result of the heat of passion upon a sudden
quarrel with his wife and therefore is entitled to get benefit of the reasonable doubt that his
act did not amount to murder. He should not, therefore, be convicted under Section 304 of IPC
for a culpable homicide.

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MEMORIAL FOR THE APPELLANT
 II) WHETHER THE ACT OF ACCUSED FITS IN SUDDEN AND GRAVE
PROVACATION CLAUSE?

Your Honour, the relationship between a husband and wife is based on mutual love and

respect. Appellant was a man of limited resources and expected in his tough times for his wife

to cooperate with him and not mock him for his inefficiency to earn more. The wife of the
appellant was still not taking into consideration their limited resources for running and

sustaining a family and in contrast to this was being extravagant beyond limits. She was

constantly forcing the appellant and quarrelling over the fact that he does not hand her all his

salary despite the appellant handing over his complete earnings.

The fact that wife had been repetitively humiliating the appellant who was going through

tough times in terms of his employment is certainly a grave and sudden provocation. Everyone
wishes for a peaceful environment at home, and is likely to lose his self-control in such a

situation. The incident in question occurred in a sudden fight and a heat of passion by a sudden

quarrel. Each person has a specific state of mind and can tolerate humiliation only up to a
certain threshold.

The appellant was deprived of the power of self-control by grave and sudden provocation

which led him to commit the offence. If rubbish is thrown onto one's dignity and self-respect

by continuously humiliating him, one would naturally get very upset. It is evident that the

accused had no motive or intention to cause the death of the deceased since the accused was

not carrying the knife from before, and only picked it up during the scuffle with the deceased.

I find support in my view from the decisions of this Court in Kunhayippu v. State of Kerala

2000 10 SCC 307 as well as in Masumsha Hasanasha Musalman v. State Of Maharashtra

2000 3 SCC 557.

The position may have been different if right from the beginning the appellant-accused had

been carrying a sword with the intention to attack the deceased. But that is not the case here.
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MEMORIAL FOR THE APPELLANT
The Supreme Court has observed in K.M Nanavati v. State of Maharashtra, 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
so as to lose his self-control.

In these days, when so much is being said about the sanctity of mens rea doctrine and the
individualization of punishment, all objective criteria of criminality are bound to smack of
injustice to the accused, particularly when such criteria are adopted for determining the guilt
or innocence of the accused. According to the test of reasonable man, only such provocation
as is capable of depriving a reasonable man of his self-control is considered to be "grave". The
provocation is to be judged with reference to its probable impact on the mind of a "reasonable
man". Then, the question is, who is this man? What type of mind has he? Obviously, he is not
a person who is ideally reasonable. [Mahmood (1961) A.L.J 209 at p. 213, supports this view.
If he were to be so, he would not lose his self-control despite any serious provocation.

Then what is the degree of reasonableness with which he is to be invested? By qualifying the
reasonable man with rhetorical adjectives like normal, average, common, etc., the degree of
reasonableness hardly becomes more comprehensible. This type of description of reasonable
man only moves in a circle. Really speaking none has so far attempted to draw a complete
sketch of the reasonable man, depicting his characteristics both physical and mental. Is there
any standard of reasonable man for the application of the doctrine of "grave and sudden
provocation? No abstract standard of reasonableness can be laid down". Once this truth us
firmly understood, no time and energy need be spent in search of any concrete categories of
provocation that can be labelled as "grave" without any regard for time, place, etc. The
supreme court has rightly pointed out that, what a reasonable man will do in a certain
circumstances depends upon the customs, manners, way of life, traditional value, etc. in short
the cultural, social and emotional background of the society to which the accused belongs. In
our vast country there are social groups ranging from the lowest to the highest state of
civilization. It is neither possible nor desirable to lay down any standard with precision; it is
for the court to decide in each case, having regard to the relevant circumstances.

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MEMORIAL FOR THE APPELLANT
The Supreme Court has recently stopped a wrong done to the "reasonable man" in another

direction. There is nothing in the wording of Exception 1 to Sec 300 to suggest that words
alone would never amount to grave provocation. The artificial restriction upon the normal

reaction of reasonable man has been finally removed by the authoritative declaration of the

Supreme Court in Nanavati v State of Maharashtra. In that case, Justice Subha Rao observed

"In India, words and gestures may also, under certain circumstances cause sudden and grave

provocation to an accused so as to bring his act within the first Exception to S. 300, Indian

Penal Code."

The view taken by Allahabad High Court in Hafizullah v. State. In this case, Roy, J., while
epounding the law on the poiny, bodily copied the words of Vicount Simon, L.C., from the

judgement in Mancini v D.P.P., but without making any reference or mention whatsoever or

Mancini or to any other English decision.

It was said, "In applying the test it is of particular importance to consider whether a sufficient

interval has elapsed since the provocation to allow a reasonable man time to cool and to take

into account the instrument with which the homicide was effected, for to retort, in the heat of

passion induced y provocation, by a single blow, is a very different thing from making use of
deadly instrument like a sharp and large knife. (Here, it was rephrased but the contextual

background remained the same. It was used for a concealed dagger and by that it was meant
whether the accused already has an idea of how to act in case of a quarrel.)

In AIR 1967 Punj 508 (Atma Ram v. State) it was held that the foul words used by the

deceased wife to her husband would be sufficient to provoke such a degree of frenzy and

resentment, in the man situated in the position of the accused they would make him lose all

the power of self-control so as to bring the killing of the wife by the husband under the

provisions of Section 304(1) of the Indian Penal Code.

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MEMORIAL FOR THE APPELLANT
In Amarjit Singh v State AIR 1970 Punj 279, the trauma caused by verbally abusing was used
where in the son on hearing the father abusing him and saying that he must provide him with
money even if he had to get his mother prostituted for raising it, immediately inflicted blows
with a knife on the father and killed him, was held to be an offence committed under grave
and sudden provocation entitling the accused to the benefit of exception I to Section 300 and
consequently, the offence committed by him was one under Section 304 I.P.C. Same has been
cited in Re Fakirappa Yellappa Tukkappanawar decided by the Karnataka High Court.

In Pulicherla Nagaraju Alias Nagaraja Reddy v. State of A.P. 2006 11 SCC, it was held

whether there was an intention to cause death is to be gathered from several circumstances,

and one of the circumstances mentioned in the said paragraph is whether the weapon was

carried by the accused or was picked up from the spot. If it was carried by the accused right

from the beginning that may be a circumstance to indicate that there was an intention to cause
death if it was used for attacking the deceased on a vital part of the body.

However, when the weapon was not initially in the hand of the accused, but was picked up

from the spot during the altercation, then it cannot be said that it is a case under Section 302

IPC, rather it is only a case of culpable homicide not amounting to murder which comes under

Section 304 IPC and not under Section 302 IPC. There is a clear distinction between a case of

premeditated attack with intention to cause death and a case where there was no such

premeditated intention and death was caused in the heat of the moment or fit of anger during

an altercation or quarrel.

No doubt, even in the heat of the moment or fit of anger one should not attack somebody since

human beings are different from animals inasmuch as they have the power of self-control.

Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people
sometimes do acts which may not have been done after premeditation. Hence the law provides

that while those who commit acts in the heat of the moment or fit of anger should also be

punished, their punishment should be lesser than that of premeditated offences.

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The appellant did not get sufficient time to cool down and one thing led to another and resulted
in the death of the person walking nearby, the act was not pre-planned and the appellant did
not get sufficient time to cool down and introspect his actions. The act was done in a fit of
rage and the thinking capacity of the appellant was blinded in the moment. He could not make
a differentiation between the right and the wrong.

The Madras High Court in the case of Empress v Khogayu has observed, [1879] 2I.L.R.
Madras 122 at p. 123, in determining whether the abusive language used by the deceased was
grave enough, it is admissible to take into account the mental condition of mind in which the
offender was at the time of the provocation. In this case, the behaviour of the wife justly
enraged the conduct of the offender. This case was referred by Supreme Court in the case of
Nanavti. The Supreme Court has held the mental background created by the previous act of
the victim may be taken into consideration whether the subsequent act caused grave and
sudden provocation for committing the offence. The pre-provocation mental condition of the
offender needs to be taken into consideration.

When provocation which is sufficiently serious, unexpectedly swoops down upon a mind, not
too strong, the mental jolt caused thereby would in all probability result in loss of self-control.
When a person is suddenly confronted with provocation, normally the consequential loss of
self-control is almost instantaneous. Naturally, if there is some interval between the
provocation and loss of self-control, it would generally mean that one is not the cause of the
other.

It is submitted that the time interval being material to establish the casual relation of
provocation with the deprivation of the power of self-control, it should be determined with
reference to the point of time when the provocation reaches the mind of the accused and not
when the provocative act was done by the deceased. Any time lag between the provocative
act should have no bearing in the causation of the loss of self-control. The interval between
the provocation must be brief.

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The only test which the case has to pass generally, in order to enable an accused person to get
the benefit of Exception No. 1 to Section 300 Indian Penal Code, is that the provocation,
proceeding from the victim, must be reasonably capable of being considered grave and sudden
according to the outlook and standards of persons belonging to the section of society to which
the accused belongs. No further test of a reasonable conduct, during the short interval of time
in which the accused has temporarily lost self-control, is required by our law. And, in our
opinion, no such additional test can be laid down without removing the very basis upon which
the doctrine of grave and sudden provocation rests. Of course, there may be cases in which,
even though the provocation is grave and sudden, the cool and calculating conduct of the
offender, either before or immediately after the provocation, may reveal that his acts were not
the result of an uncontrollable impulse which had overpowered him but were committed in
pursuance of a plan to take revenge, and such offenders could not invoke "the law's benignity".
In these exceptional cases, the plea of grave and sudden provocation would fail due to an
additional test, which is not whether the conduct of the offender was reasonable but which
requires that the accused must be shown to have been deprived of self-control when he
committed homicide.

In Gurya Bucha v. State of Gujrat, V.B. Raju, J., observes, "The principle which can be
inferred from the language of Exception 1, is that if the exception is to apply, the violence
used by the offender which resulted in the death of a person must have a reasonable relation
to the degree and duration of the loss of the power of self-control that can be reasonably
expected in the case of a normal person having regard to the exact nature of the grave and
sudden provocation caused, provided other requirements are fulfilled.

In AIR 1961 All 538 at p. 539, Oak, J., held: - "So, if it is proved that the accused did receive
grave and sudden provocation, the Court is generally prepared to assume that the homicide
was committed while the accused was deprived of the power of self-control." We, with great
respect, adopt and follow what was laid down there, and hold that if an accused person is not
actually proved to have himself acted improperly or unreasonably before the loss of self-
control due to a grave and sadden provocation given by the victim, the accused would be
deemed to have satisfied the qualifying or first test of reasonableness.
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Your Honour, the deliberate choice of the weapon or of the mode of its use may go to show

whether the offender was deprived of his self-control and acted under grave and sudden

provocation. A person who has lost his self-control on grave and sudden provocation is most

likely to be oblivious of the means and modes of his retaliatory action. It is highly improbable

that a person after having lost his self-control would use precisely that much force as is

proportionate to the provocative act.

The appellant was severely exasperated by his wife and had frequently been involved in

squabbles with her. The wife having continuously accusing him of lying to her time and again

disrupted and strained the marital relationship they shared. It also affected and impacted him

mentally and when it reached to his threshold and breached his level of patience, his

reasonability got overshadowed by the behaviour of his wife and he acted impulsively only to

cause such a damage. Your Honour, the appellant is a man of dignity and integrity, it was only

after repeated provocation from the side of his wife that he acted in such a manner and his act

falls in the category of sudden and grave provocation. His act was rash and negligent but that

was only due to the conduct of his wife towards him that pushed him to such an extreme step.

He was not in the right state of mind when he was acting in such a manner, otherwise he would

have never done so.

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 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsels on behalf of the Appellant humbly pray before this Hon’ble Court that
it may be pleased to adjudge and declare that:

1. The Appellant is liable u/s 304 and shift his sentence from life imprisonment to a
term as it deemed fit.

Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Appellant shall as duty bound
ever pray.

Sd/- _______________________
Counsel for the Appellant.

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