memorial for moot

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IN THE HONB’LE HIGH COURT OF GUJRAT

IN THE CASE OF

ANITA

VS

STATE OF GUJRAT

MEMORIAL ON BEHALF OF APPEALENT

-WRITTEN SUBMISSIONS ON BEHALF OF COUNSEL FOR PLANTIFF-

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TABLE OF CONTENTS

1. List of abbreviations

2. Index of authorities

3. Statement of jurisdiction

4. Summary of facts

5. Questions raised

6. Summary of arguments

7. Argument advanced

8. Prayer


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LIST OF ABBREVIATIONS

1 .ipc - Indian penal code

2. consti-constitution

3.cri.law- criminal law

4. sec-section

5. art-article

6. hon’ble-honourable

7. cj-chief justice

8. doc.-document

9. govt.-government

10. para-paragraph

11. sc-supreme court

12. cr.p.c.-code of criminal procedure

13. h.c. high court

14. scc- supreme court cases

15. scj- Supreme Court journal

16. air- All India reporter

17. jt- judgement times

18. Cr.l.j. - Criminal law

19. ghj- Gujarat law herald

20. Guj. - Gujarat


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INDEX OF AUTHOURITIES

Books referred

1. Gaur k.d.indian penal code, universal publisher

2. Thakkar c.k, criminal law and practice, Asoka law house

3. Thakore dhirijlal keshavlal, ipc, 31st edition

4. Gandhi b.m.,ipc

5. merriam-webster’s dictionary of law 1st edition, Springfield, 2005

6. Singhal m.l.ipc, 2nd edition, premier publishing company

7. Sarkar on Indian penal code, dwiwedi law agency

8. Universal,s criminal manual universal law company

9. Raghavan on law of crime, 4th edition, Indian law house, 1996

10. Singh jaspal Indian penal code all india reporter pvt lmtd.

Website referred

1. www.pacilli.com last visited on 8th September 2010

2. www.manupatra.com last visited on 8th September 2010

3. www.legal.com research.com last visited on 8th September 2010

4. www.indianlaw.com

5. www.legalservice.com

6. www.indianlawinfo.com

7. www.indianlaworg.com

8. www.judisnic.in

9. www.scjudgements.in

10. www.supremecourt.com


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Authorities cited

1. Gurcharan Singh vs. state of Punjab2. K.M. Nanavti vs. state of Maharashtra3. R. vs. Duffey4. Holmes vs. director of public prosecution5. R vs. Ahluwalia


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STATEMENT OF JURISDICTION

The Respondent has submitted to the jurisdiction of this Hon’ble High Court of Gujarat.

The High Court’s jurisdiction is invoked under Criminal Procedure Code. The parties shall

accept any Judgement of the Court as final and binding upon them and shall execute it in its

entirety and in good faith.

Thus the matter stands in this Honorable Court.

All of which is respectfully submitted.


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STATEMENT OF FACTS

1. That, Anita and Aman were married from the past five years.

2. That, from the last three years, Aman has taken to going out drinking of an evening

and coming back home late at night.

3. That, Anita frequently scolded him for the same and told him she would leave him if

he didn’t mend his ways.

4. That, it was found that Aman has a violent temper and on some occations he had hit

Anita forcefully. And on other occations, Aman has forced Anita to engage in sexual

intercourse with him despite of her protests.

5. That, Anita took a help from a counsellor who advised her to leave Aman.

6. That, the next time when Aman came home drunk, he staggered into the bedroom and

Anita told him she was leavening him the next day.

7. That, whereupon Aman punched out at her several times, breaking some of her teeth,

cutting her lips and badly bruising her.

8. That, eventually Aman went to sleep on the bed with Anita sobbing in the corner of

the room.

9. That, several hours later, in the early hours and whilst Aman was still asleep in a

drunken stupor, Anita went downstairs and poured herself a couple of large brandies.

10. That, she then went to the tool shed in the garden and took out a large hammer.

11. That, Anita returned to the bedroom and hit Aman several times about the head and

killing him.

12. That, she then calmly called the police and said; “you had better come quickly- I have

just murdered my husband”.

13. That, Anita was arrested and questioned the next day and she made the statement to

the police.

14. That, in the statement, Anita explained that she just could not take any more and that

she had told the counsellor that she would leave Aman if he ever hurt her again.

15. That, Anita was charged with murder at the trial court.

16. That, she is appealing against that verdict on the basis that judge should have

considered her defence of provocation.

17. That, judge had not considered the defence because of the cooling of period of some

hours.


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ISSUE RAISED

I. Whether the provocation was valid?

II. Whether Anita committed culpable homicide or murder?

III. Whether Anita has acted in involuntarily intoxication or private defence or not?


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SUMMARY OF ARGUMENTS

Murder versus Culpable Homicide: The distinction revisited

Murder (defined under Section 300) and culpable homicide (defined under Section 299) are

two offences under the Indian Penal Code the distinction between which has always been

perplexing to the law students. For their benefit, we are referring to a recently reported

decision of the Supreme Court wherein these principles have been explained in extensio as

under;

18. Section 299 and Section 300 IPC deals with the definition of culpable homicide and

murder respectively. Section 299 defines culpable homicide as the act of causing death; (i)

with the intention of causing death or (ii) with the intention of causing such bodily injury as

is likely to cause death or (iii) with the knowledge that such act is likely to cause death. The

bare reading of the section makes it crystal clear that the first and the second clause of

the section refer to intention apart from the knowledge and the third clause refers to

knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate

the existence of a positive mental attitude which is of different degrees. The mental element

in culpable homicide i.e. mental attitude towards the consequences of conduct is one of

intention and knowledge. If that is caused in any of the aforesaid three circumstances, the

offence of culpable homicide is said to have been committed. Section 300 IPC, however,

deals with murder although there is no clear definition of murder provided in Section 300

IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder

is species and that all murders are culpable homicide but not vice versa. Section 300 IPC

further provides for the exceptions which will constitute culpable homicide not amounting to

murder and punishable under Section 304. When and if there is intent and knowledge then the

same would be a case of Section 304 Part I and if it is only a case of knowledge and not the

intention to cause murder and bodily injury, then the same would be a case of Section 304

Part II. The aforesaid distinction between an act amounting to murder and an act

not amounting to murder has been brought out in the numerous decisions of this Court.


http://legalperspectives.blogspot.com/2009/12/murder-versus-culpable-homicide.html

http://legalperspectives.blogspot.com/2009/12/murder-versus-culpable-homicide.html

http://docs.google.com/fileview?id=0B6hXZkfsIpLQYTM5OWRhYjEtNmZiNS00YmFkLTg0ZmMtNGU1ZjBlZmQ1OTA2&hl=en_GB

http://docs.google.com/fileview?id=0B6hXZkfsIpLQYTM5OWRhYjEtNmZiNS00YmFkLTg0ZmMtNGU1ZjBlZmQ1OTA2&hl=en_GB

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19. In the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, this Court

observed as follows at page 386:

"12. In the scheme of the Penal Code, "culpable homicides" is genus and "murder" its specie.

All "murder" is "culpable homicide" but not vice-versa. Speaking generally,

"culpable homicide" sans "special characteristics of murder", is "culpable homicide not

amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of

this generic offence, the Code practically recognises three degrees of culpable homicide. The

first is, what may be called, "culpable homicide of the first degree". This is the greatest form

of culpable homicide, which is defined in Section 300 as "murder". The second may be

termed as "culpable homicide of the second degree". This is punishable under the first part of

Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of

culpable homicide and the punishment provided for it is, also, the lowest among the

punishments provided for the three grades. Culpable homicide of this degree is punishable

under the second part of Section 304."

20. Placing strong reliance on the aforesaid decision, this Court in the case of Abdul Waheed

Khan v. State of A.P., (2002) 7 SCC 175, observed as follows at page 184:

"13. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The

distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed

by the offender regarding the particular victim being in such a peculiar condition or state of

health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that

such harm would not in the ordinary way of nature be sufficient to cause death of a person in

normal health or condition. It is noteworthy that the "intention to cause death" is not an

essential requirement of clause (2). Only the intention of causing the bodily injury coupled

with the offender's knowledge of the likelihood of such injury causing the death of the

particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect

of clause (2) is borne out by Illustration (b) appended to Section 300.

14. Clause (b) of Section 299 does not postulate any such knowledge on the part of the

offender. Instances of cases falling under clause (2) of Section 300 can be where the


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assailant causes death by a fist-blow intentionally given knowing that the victim is suffering

from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause

death of that particular person as a result of the rupture of the liver, or spleen or the failure of

the heart, as the case may be. If the assailant had no such knowledge about the disease or

special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the

ordinary course of nature to cause death, the offence will not be murder, even if the injury

which caused the death, was intentionally given. In clause (3) of Section 300, instead of the

words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the

words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction

lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary

course of nature to cause death. The distinction is fine but real and if overlooked, may result

in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of

Section 300 is one of degree of probability of death resulting from the intended bodily injury.

To put it more broadly, it is the degree of probability of death which determines whether a

culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause

(b) of Section 299 conveys the sense of probable as distinguished from a mere possibility.

The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean

that death will be the "most probable" result of the injury, having regard to the ordinary

course of nature.

15. For cases to fall within clause (3), it is not necessary that the offender intended to cause

death, so long as the death ensues from the intentional bodily injury or injuries sufficient to

cause death in the ordinary course of nature. Rajwant Singh v. State of Kerala is an apt

illustration of this point.

16. In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for the Court, explained the

meaning and scope of clause (3). It was observed that the prosecution must prove the

following facts before it can bring a case under Section 300 "thirdly". First, it must establish

quite objectively, that a bodily injury is present; secondly, the nature of the injury must be

proved. These are purely objective investigations. Thirdly, it must be proved that there was

an intention to inflict that particular injury, that is to say, that it was not accidental or

unintentional or that some other kind of injury was intended. Once these three elements are

proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the

injury of the type just described made up of the three elements set out above was sufficient to


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cause death in the ordinary course of nature. This part of the enquiry is purely objective and

inferential and has nothing to do with the intention of the offender.

17. The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious

Judge in his terse language as follows: (AIR p. 467, para 12) "12. To put it shortly, the

prosecution must prove the following facts before it can bring a case under Section

300 `thirdly'; First, it must establish, quite objectively, that a bodily injury is

present; Secondly, the nature of the injury must be proved; These are purely objective

investigations. Thirdly, 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 that some other kind

of injury was intended. Once these three elements are proved to be present, the enquiry

proceeds further and, Fourthly, 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. This part of the enquiry is purely objective and inferential and has nothing to do

with the intention of the offender."

18. The learned Judge explained the third ingredient in the following words (at p. 468): (AIR

para 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 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."

19. These observations of Vivian Bose, J. have become locus classicus. The test laid down by

Virsa Singh case for the applicability of clause "thirdly" is now ingrained in our legal system

and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable

homicide is murder, if both the following conditions are satisfied i.e. (a) that the act

which causes death is done with the intention of causing death or is one with the intention of

causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the

ordinary course of nature to cause death. It must be proved that there was an intention to


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inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to

cause death viz. that the injury found to be present was the injury that was intended to be

inflicted.

20. Thus, according to the rule laid down in Virsa Singh case even if the intention of the

accused was limited to the infliction of a bodily injury sufficient to cause death in the

ordinary course of nature, and did not extend to the intention of causing death, the offence

would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

21. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the

probability of the act causing death. It is not necessary for the purpose of this case to dilate

much on the distinction between these corresponding clauses. It will be sufficient to say that

clause (4) of Section 300 would be applicable where the knowledge of the offender as to

the probability of death of a person or persons in general as distinguished from a particular

person or persons -- being caused from his imminently dangerous act, approximates to

a practical certainty. Such knowledge on the part of the offender must be of the highest

degree of probability, the act having been committed by the offender without any excuse

for incurring the risk of causing death or such injury as aforesaid.

22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their

observance will facilitate the task of the court. But sometimes the facts are so intertwined

and the second and the third stages so telescoped into each, that it may not be convenient to

give a separate treatment to the matters involved in the second and third stages."


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Section 300 (murder)

I. Except in the case hereinafter excepted, culpable homicide is murder, 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 the harm is caused, or,

III.If it is done with the intention of causing bodily injury to any person and the bodily

injury indented to be inflected is sufficient in the course of nature to cause death, or,

IV. If the person committing the act knows that it must, in all probability, cause death or

such bodily injury as is likely to cause death

Exception 1:- when culpable homicide is not murder:-

Culpable homicide is not murder if the offender, whilst deprived of the power of self control

by grave and sudden provocation, cause the death of any other person by mistake or accident.

The above exception is subject to the following provisions:

I. That the provocation is not sought or voluntarily provoked by the offender as an

excuse for killing or doing harm to any person.

II. That the provocation is not given by anything done in obedience to the law, or by a

public servant.

III. That the provocation is not given by anything done in the lawful exercise of the right

to private defence.

IV. Whether the provocation was grave and sudden enough to prevent the offence from

amounting to murder is question of fact.

Exception 2 :- Culpable homicide is not murder if the offender, in the exercise in good faith

of the right to private deface of person or property, exceeds the power given to him by law

and causes the death of the person against whom he is exercising such right to private defence

without premeditation, and without any intention of doing more harm than is necessary for

the purpose of such defence.


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Exception 3:- Culpable homicide is not murder if the offender, being a public servant or

aiding a public servant acting for the advancement of public justice, exceeds the powers

given to him by law, and causes death by doing an act which he, in good faith, believes to be

lawful and necessary for the due discharge of his duty as such public servant and without ill-

will towards the person whose death is caused.

Exception4:- 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.

Explanation:- It is immaterial in such cases which party offers the provocation or commits the

first assault.

Exception 5:- Culpable homicide is not murder when the person whose death is caused,

being above the age of 18 years, suffers death or takes the risk of death with his own consent.


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SECTION 299

CULPABLE HOMICIDE

Whoever causes death by doing an act 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.

Explanation :-1 A person who causes bodily injury to another who is labouring under a

disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be

deemed to have caused his death.

Explanation 2 :- Where death is caused by bodily injury, the person who causes such bodily

injury shall be deemed to have caused the death, although by resorting proper remedies and

skilful treatment the death might have been prevented.

Explanation 3:- the causing of the death of the child in the mother’s womb is not homicide.

But it may amount to culpable homicide to cause the death of any living child, if any part of

that child has been brought forth, though the child may not have breathed or been completely

born.

Murder distinguished from culpable homicide

“Culpable homicide” is genus, and “murder” is the specie. All “murder” are culpable

homicide but not vice-versa


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3. Whether Anita has acted in involuntarily intoxication or private defence or not?

In the current case the lady anita has acted under involuntarily intoxication because it is true she herself has drunk the brandies but her mental state at that time was not sufficient to understand the nature and consequences of her act which is defined under article 86 of the Indian penal code. Here no mens rea was there and she acted in her right to private defence which is defined under section 96 of Indian penal code. She has acted in good faith.this principal has laid down in the cases of basdev vs state of pepsu and das kandha vs state of orrisa.


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Equivalent citations: 1999 CriLJ 3918

Bench: M Karpagavinayagam, V Bakthavatsalu

V. Raja vs State on 5/2/1999

JUDGEMENT

M. Karpagavinayagam, J.

1. Raja, the appellant herein, challenging the conviction imposed upon him for the offence

under Section 302, I.P.C., has filed this appeal.

2. The prosecution case is as follows :-

(a) P.W.1 Alif Raja is residing in Kurumbapatti village in Palani. P.W.2, Chinnadurai is

living in Madhanapuram in Palani. P.W. 3 Thandapani is residing at Palani Adivaram. All the

three witnesses are friends. They used to play cards for stakes in poramboke land under a

Karuvelan tree near Vaiyapuri Tank.

(b) The occurrence took place on 15-3-87 at about 3.00 p.m. The appellant along with P.Ws.

1 to 3 gathered in the said place for playing cards on the fateful day. P.W.2 Chinnadurai

spread a green cloth M.O.1 for playing cards. Thereafter, all the persons were gambling with

playing cards M.O. 2 series. The deceased Rajendran, one of the players, was winning in all

the games, whereas the appellant Rajendran was losing. Ultimately, the appellant lost all his

money in the game. So, he could not gamble further and he requested the deceased Rajendran

to allow him to participate in the free cards. However, the deceased Rajendran refused to give

him free cards and asked to to get out.

(c) So, the appellant got annoyed at this and in a bid of rage, he took out a knife M.O. 3 from

inside his banian and inflicted a single stab injury on the left side of the chest of the said

Rajendran. On receipt of the said injury Rajendran fell down. All the witnesses and others

attempted to catch the appellant. He threatened them with the knife and took to his heels. The

witnesses came near the deceased and found that he already died. So, Kulanthaivelu, the

brother of the deceased along with P.W.1, went to the police station.


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(d) P.W. 8, the Writer received a complaint from the said Kulantaivelu, which was attested by

P.W.1. The same was registered in Crime No. 75/86 under Section 302, I.P.C. The F.I.R. is

Ex. P-9. These documents were sent to the Court as well as to the higher officials.

(e) P.W.ll,the Inspector of Police, on receipt of the copy of the F.I.R., took up investigation at

6.15 p.m. on 15-3-87. He came to the seen and prepared the observation mahazar Ex. P-4 and

Rough Sketch Ex. P-14 in the presence of P.W.5. He recovered green cloth M.O.1, one 50

paise coin M.O. 5, 4 Beedies M.O. 6 series, a match box M.O. 6, playing cards M.O. 2 series

and blood stained earth M.O. 8 from the scene of occurrence. He also recovered Rs. 27/-

M.O. 4 series under 'Athatshi' Ex. P-6. Thereafter, he conducted inquest and examined

witnesses P.Ws. 1 to 3. Ex. P-15 is the inquest report. Thereafter, he sent the body for post-

mortem to the hospital.

(f) P.W.5, the Medical Officer attached to the Palani Government Hospital, conducted post-

mortem on 16-3-87 at 10.30 a.m. He found the following external injury :-

An elipitcal transversely placed wound over left side of chest 3" below left clavicle close

sternum over the second intercostal space measuring 2 1/2 x 1" exposing the subcutaneous

tissue intercostal muscles and rib. Depth of the wound by probing measures 3 1/2.

V. Raja vs State on 5 February, 1999. He found that the deceased died due to fatal injury to

the great vessel ascending aorta causing haemorrhage.

(g) On 17-3-87, P.W.11 went to Kodaikanal Branch Road and arrested the accused in the

presence of P.W.6. When the arrest was resisted by the appellant/accused, the police used

force to apprehend him.

(h) Thereafter, the appellant gave a confession, the admissible portion of which is Ex. P-7. In

pursuance of the said confession, M.O. 3 knife was recovered from the place on being

pointed out by the accused. Since the accused had injury on his body, he was sent to the

hospital. P.W.4 examined the accused on 17-3-87 and issued the wound certificate Ex. P-3.

(i) P.W.11 sent the material objects for chemical analysis. Thereafter, P.W. 11 after

completing the investigation, filed the charge sheet against the appellant on 23-4-87.


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3. During the course of trial, on the side of prosecution, P.Ws. 1 to 11 were examined, Ex. P-

1 to P-16 were filed and M.Os. 1 to 15 were marked. On questioning under Section 313,

Cr.P.C., the accused denied having participated in the commission of offence.

4. On a careful scrutiny of the materials placed by the prosecution, the trial Court concluded

that the appellant caused the death of the deceased and convicted him for the offence referred

to above. This verdict is being challenged in this appeal.

5. Mr. Selvam, the learned Senior Counsel, took us through the entire evidence. He would

submit that the case of the prosecution brussles with several infirmities, inasmuch as the

person, who gave the F.I.R. was not examined, that the motive aspect as projected by the

prosecution is quite flimsy, that the medical evidence has not established the case as put

forward by the ocular evidence, that the recovery cannot be believed, since the

same is said to be recovered after the accused was arrested and beaten and it cannot be said to

be a voluntary confession, that the very fact that the injuries found on the accused were

appeared to be brown colour would go to show that the injuries would have been caused

during the course of quarrel between the accused and the victim on the date of occurrence and

the said thing has not been placed before the Court by the prosecution and that therefore, the

conviction imposed upon the appellant is not proper and the same is liable to be set aside.

6. Per contra, the learned Government Advocate, would resist the same stating that the

evidence of P.Ws. 1 to 3 is cogent and consistent and nothing has been elicited in the course

of their cross-examination so as to discredit the credibility of those witnesses and the medical

evidence adduced by the Doctor would clear corroborate the ocular testmony adduced by the

witnesses and that therefore, the trial Court has correctly concluded that the appellant is liable

to be convicted for the murder.

7. We have given our anxious consideration to the divergent contentions urged by the counsel

on either side.

8. The occurrence took place in a day light. According to the prosecution, the witnesses and

the deceased as well as the accused were playing cards from 3.00 p.m. to 4.00 p.m. When the

deceased refused to allow the accused to play free cards, since the accused lost all his money,

this occurrence had taken place. According to the prosecution, all the three eye witnesses

examined in this case had participated in the game.


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9. No doubt, it is true that one of the persons, who played the cards and who gave the F.I.R. is

none other than the brother of the deceased and he has hot been examined. So, when the

author of the F.I.R. has not been examined, as correctly pointed out by Mr. Selvam, the

learned senior counsel appearing for the appellant, no importance could be attached to the

contents of the F.I.R.

10. But, it must be noticed that the said F.I.R. has been attested by P.W. 1, who is one of the

eyewitnesses. Though we need not act upon Ex. P-1, the fact that the brother of the deceased

has given the complaint attested by P.W.I could be relied upon, in the light of the evidence

adduced by P.W. 1 in the Court. The evidence of P.W. 1, in our view, is fully corroborated by

the evidence of P.Ws. 2 and 3. The consistent version with regard to the occurrence as given

by P.Ws. 1 to 3 is further established by the medical evidence adduced by the Doctor.

11. No doubt, it is true that though the occurence took place on 15-3-87, the accused was

arrested only on 17-3-87 by the police applying mild force. Therefore, it cannot be contended

that the knife was recovered in pursuance of a volunatry confession. Therefore, in our view,

the evidence relating to the recovery of the weapon cannot be given much credence, in view

of the admission made by the Inspector of Police that the accused was arrested after applying

mild force, since his arrest was resisted by him.

12. So, in the light of the above things, we have to necessarily eschew the F.I.R. as well as

the evidence relating to the recovery of the weapon. But, it does not mean that the materials

in relation to the occurrence placed by the ocular witnesses P.Ws. 1 to 3 are to be rejected in

toto.

13. The reading of the deposition of these witnesses would clearly show that the occurrence

could have taken place as alleged by the prosecution. The injuries fround on the accused were

treated by Doctor P.W.4 to whom the accused told that he was beaten by the police

considerably on 17-3-87 at 4.00 a.m.

14. It is contended by the learned counsel for the appellant that since the injuries were found

to be brown, those injuries must have been caused one or two days prior to that and therefore,

the possibility of the accused sustaining injuries during the course of occurrence cannot be

ruled out.

15. In our view, this contention does not merit acceptance. Further, those things have not

been culled out from the Doctor during the course of cross-examination. Whatever it is. Since


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we are convinced by the evidence of P.Ws. 1 to 3, we have no hesitation to hold that the

deceased died only due to the injury caused by the appellant. Therefore, the conclusion of the

trial Court with reference to the act played by the appellant in having caused the injury,

which resulted in the death of the deceased, is perfectly justified and proper.

16. Coming to the nature of offence said to have been committed by the appellant, the learned

counsel for the appellant would submit that even assuming that the entire facts are true, it

cannot be concluded that the conviction can be sustained under Section 302, I.P.C., but it

could fall either under Section 304, Part-I or 304 Part-II, I.P.C. in view of the fact that the act

attributed to the appellant would come under First and Fourth Exception of Section 300,

I.P.C.

17. Mr. Elango, the learned Government Advocate, in opposing the said submission, would

cite the decision in State of Karnataka v. Vedanayagam (1994) 3 Crimes 1017 stating that if

the injury inflicted by the accused caused to death of the deceased, then naturally, eventhough

the person inflicted single stab or single injury, he shall be convicted for murder only under

First or Fourth Exception of Section 300, I.P.C.

18. We have carefully considered the rival contentions made by either side.

19. This is a case where the occurrence had taken place when the appellant requested the

deceased to allow him to play free cards, as he lost the entire money in the game. However,

the deceased, who was winning in all the games not only refused to allow the appellant to

participate, but also asked him to get out of the place. In such a situation, the appellant took

out the knife, which he was keeping inside his banian and gave a single stab and ran away.

20. So, in our view, the exception firstly to Section 300, I.P.C. would apply in the instant

case, since this act has been committed by the appellant, while he was deprived of the power

of self-control by grave and sudden provocation.

21. In the decision in Muthusamy v. State by Inspector of Police (1994) 1 Mad LW (Cri) 44

the Division Bench of this Court, relying upon the various decisions of the Supreme Court

including the decision of K. M. Nanavati v. State of Maharashtra , has laid down the

following principles:-


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(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 provoked so as to lose his self-control.

(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 with the first Exception of Section

300, I.P.C.

(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

provo-cation and not after the passion had cooled down by lapse of time, or otherwise giving

room and scope for premeditation and calculation.

22. In the light of these principles, if we assess the materials placed before this Court, we are

satisfied that the act has been committed by the appellant by suddenly taking the knife from

his banian, since the words uttered by the deceased asking the appellant to go out, inspite of

the fact that the appellant did not have any money and he lost the entire money in the playing

of cards, would definitely cause grave and sudden provocation because we have to see the

mental background, of the appellant created by the previous act of the deceased by asking

him to go out of the place which shall be taken into consideration in ascertaining as to

whether the act has been committed under grave and sudden provocation, though P.Ws. 1 to 3

have not given the details about this aspect.

23. The evidence of P.W. 1 is very clear to the effect that the appellant/accused having lost

ten times, on the 11th time, he requested the deceased Rajendran to allow him to play free

cards. The deceased not only did not allow him to play free cards and distributed the cards to

others by ignoring the appellant, but also shouted at the appellant asking him to get out.

24. In these circumstances, it can be concluded that the act of removing the knife which he

had kept inside his banian and stabbing on the chest and causing a single injury and running

away from the place would definitely fall under First Exception of Section 300, I.P.C. which

is liable to be punished under Section 304, Part-I, I.P.C. In view of the matter, we deem it fit

to convert the conviction under Section 302, I.P.C. into 304, Part II, I.P.C.


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25. In the result, the conviction and sentence imposed upon the appellant under Section 302,

I.P.C. are set aside. Instead, the appellant is convicted for the offence under Section 304,

Part-I, I.O.C and sentenced to undergo R.I. for 7 years. With this modification, the appeal is

dismissed. The trial Court is directed to take steps to commit the accused to judicial custody

to undergo the remaining period of sentence. The bail bond, if any, executed by the appellant

stands cancelled.


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PRAYER

Whereby in the lights of question presented , arguments advanced and authorities cited, the counsel from the side of appellant , humbly prays before the hon’ble court:

To declare that:-

1. The appeal should be allowed and rather than sec 300 murder she should be charged with culpable homicide under sec 299.

2. The husband of the lady should be charged with cruelty, rape,sexuall harassment under sec 498(A),375etc.

3. Should take care of mental condition of the lady

Or any other appropriate remedy which may deem fit in the lights of justice ,equity , and fairness and the counsel from yhe appealent shall forever be duty bound to pray

-counsel from the side of appellant


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