BEFORE THE HON’BLE SESSIONS COURT,

CHANDIGARH

CRM-M NO. 21 OF 2018

STATE (U.T CHANDIAGARH)

(Prosecution)

V.

RAJ

(Defence)

FOR OFFENCES CHARGED UNDER:

Section 300 read with Sections 301 and 302 of Indian Penal Code,1860

(Counsel for Accused)

Saksham Mahajan
B.A. LL.B. (Hons)
Semester 9
Section-B
259/14
State V. Raj

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES………………………………………………3
 Table of Cases
 Books
 Statutes
 Websites

2. STATEMENT OF JURISDICTION………………………………………5

3. STATEMENT OF FACTS…………………………………………………6

4. STATEMENT OF CHARGES……………………………………………7

5. SUMMARY OF ARGUMENTS……………………………………………8

6. ARGUMENTS ADVANCED………………………………………………9
1. WHETHER THE ACCUSED IS LIABLE TO BE PUNISHED FOR OFFENCES
ALLEGED UNDER SECTION 300 AND 302 OF INDIAN PENAL CODE, 1860

1.1 The accused was deprived of power of self-control by grave and

sudden provocation.

1.1 Whether witnessing the same instance twice amounts to a fresh

instance or an instance in a series of events.

1.2 Whether no scope for premeditation and calculation.

7. PRAYER…………………………………………………………………….15

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INDEX OF AUTHORITIES

TABLE OF CASES:

1. B.D Khunte v. Union of India, (2015) 1 SCC 286

2. State of Rajasthan v. Ramesh, (2015) 17 SCC 673
3. Murlidhar Shivaram Patekar v. State of Maharashtra, (2015) 1
SCC 694
4. Pritam Sao v. State of Bihar, (2017) 5 SCC 415
5. K. M. Nanavati vs. State Of Maharashtra, 1962 AIR 605
6. Jan Muhammad v. Emperor, AIR 1934 All 833
7. Sukhlal Sarkar V. Union of India, (2012) 5 SCC 703
8. Saroj V. State of West Bengal, (2014) 4 SCC 802
9. Babu Lal v. State, 1962 (5) FLR 486
10.Prabhakar Vithal Gholve v. State of Maharashtra, (2016) 12
SCC 490
11. Budhi Singh v. State of U.P, (2012) 13 SCC 663

BOOKS:

1. K.D Gaur, The Indian Penal Code, Universal Law Publishing, 2015

2. Prof. S.N Misra, Indian Penal Code, Central Law Publications, 2010

3. Ratanlal & Dhirajlal, Law of Crimes, Bharat Law House, Vol 2, 28th
edition

STATUTES:

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

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

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WEBSITES:

1. http://www.findlaw.com
2. www.lawfinder.com/chawla
3. http://www.judis.nic.in
4. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
5. http://www.scconline.com
6. www.legalservicesindia.in

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STATEMENT OF JURISDICTION

The State humbly submits this memorandum for the petition filed by
before this Hon’ble Sessions Court, Chandigarh under Section 177
read with Section 26 and Section 209 of the Criminal Procedure
Code, 1973.

Section 177:

‘177. Ordinary place of inquiry and trial-

Every offence shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed.’

Read with Section 26:

26. Courts by which offences are triable. Subject to the other

provisions of this Code,-
(a) any offence under the Indian Penal Code (45 of 1860 ), may be
tried by-
(i) the High Court, or
(ii) the Court of Session, or

(iii) any other Court by which such offence is shown in the First
Schedule to be triable;

Read with Section 209:

‘ 209. Commitment of case to Court of Session when offence is

triable exclusively by it- When in a case instituted on a police report
or otherwise, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall-

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(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the
accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and
articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the
Court of Session.

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STATEMENT OF FACTS

The brief facts of the case are as under:-

Raj and Anita were married for 6 months. One day Anita received a
phone call from an unknown number and on picking up the phone
she turned in the opposite direction of Raj and appeared to nod in
affirmative. The suspicious behavior of Anita, naturally prompted Raj
to ask her about the caller but did she did not provide him with a
satisfactory answer.

After a while Raj left for office, however on reaching the office Raj
realized that he had left some important documents at home so he
went back home to collect the documents immediately.

However on reaching home Raj found the main door to be unbolted

and when he entered the living room he saw a woman in a
compromised state with another man. Raj was stunned to see this
and he left the home in a sad state of mind. Due to such a shocking
discovery, Raj came home late in an inebriated state. He did not talk
properly with Anita due to sadness and his current state and slept
without having dinner. His mind was in such turmoil that he did not
even care to answer his wife the reason for coming so late without
informing her.

Next day Raj was still in an acute state of shock and sadness as he
left for office quietly without talking to his wife. Still in disbelief over
what had happened the day before Raj came back home after a
while to see whether his wife is cheating on him again or not. On
reaching home Raj, again, saw a man and another woman in a
compromising state. The ordeal of witnessing something so
grotesque for the second time was twice as much agonizing for him,
unfortunately, raj due to such agony was provoked with an
uncontrollable rage and he hit the woman with a flowerpot lying
nearby, on her head, which resulted in her death. To his surprise the
woman was not his wife but her friend who happened to come to his
house with her fiancé the day before too. Anita had given them the
keys of the house for a few hours. Anita also kept a secret from raj
that it was her friend, who had infact called her the other day.

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STATEMENT OF CHARGES

i. Charges under section 300 IPC have been charged against Mr.
Raj, to which Mr. Raj has pleaded not guilty.

ii. Charges under section 301 IPC have been charged against Mr.
Raj, to which Mr. Raj has pleaded not guilty.

iii. Charges under section 302 IPC have been charged against Mr.
Raj, to which Mr. Raj has pleaded not guilty.

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SUMMARY OF ARGUMENTS

1. WHETHER THE ACCUSED IS LIABLE TO BE PUNISHED FOR

OFFENCES ALLEGED UNDER SECTION 300 AND 302 OF
INDIAN PENAL CODE, 1860

1.1 The accused was deprived of power of self control by

grave and sudden provocation

1.2 Whether witnessing the same instance twice amounts to

a fresh instance or an instance in a series of events.

1.3 Whether no scope for premeditation and calculation

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ARGUMENTS ADVANCED

1. WHETHER THE ACCUSED IS LIABLE TO BE PUNISHED

FOR OFFENCES ALLEGED UNDER SECTION 300 AND
302 OF INDIAN PENAL CODE, 1860

The edifice of the judicial system in India rests on the principle, ‘it is
better and more satisfactory to acquit a thousand guilty than to
condemn a single innocent’. The founding principle is the bedrock of
criminal jurisprudence wherein the miscarriage of justice is
anticipated in a wide sense to ensure the prevention of an innocent
being reprimanded. On these very lines the defense humbly submits
before the Hon’ble court that the accused is not liable for offenses
punishable under section 300 and 302 of IPC.

The accused having been suddenly and gravely provoked committed

an act wherein he was not in the possession of his self control,
having been enraged by the fact that his wife was cheating on him
for the second day in a row he could not contain his emotions. The
Indian penal code provides for the first exception to the offence of
murder that is grave and sudden provocation, the fact that the
accused saw a woman who he believed to be his wife in a
compromising state which created a mental background of hate and
anger, till the next day where he again saw the same occurrence
which was the tipping point for the provocation and triggered the
attack wherein the accused hit the woman with a flower pot at that
very instant meaning that the attack was sudden and not
premeditated, hence it can be said that the accused did not act with
self control on account of grave and sudden provocation1 and did not
have the intention to kill the woman.

Hence the accused is not guilty for the offence of murder under
sections 300 and 302 of IPC but for the offence of culpable homicide
not amounting to murder as per section 304 part II.

1(2015) B.D Khunte v. Union of India 1 SCC 286

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1.1 WHETHER THE ACCUSED WAS DEPRIVED OF

POWER OF SELF CONTROL BY GRAVE AND
SUDDEN PROVOCATION

That Culpable homicide amounts to murder only if it fulfills the four

basic ingredients that is the death caused is done with the intention
of causing death, or it is done with the intention of causing such
bodily injury which is likely to cause death of the person to whom
the harm is caused, or it is done with the intention of causing bodily
injury and such a bodily injury is sufficient in the normal course of
action to cause death, or the person committing such an act knows
that the inherent nature of the act is so dangerous that it in all
probability is likely to cause death or such bodily injury is as likely to
cause death.

However as per section 300 of IPC the first exception to murder

wherein culpable homicide does not amount to murder is:

Exception 1- Culpable homicide is not murder if, the

offender whilst deprived the power of self control by grave
and sudden provocation, causes the death of the person who
gave the provocation or causes the death of any other person
by mistake or accident.

The accused having believed to see his wife in a compromising state

with another man lost the power of self-control and inflicted death
upon the deceased who he thought was his wife. The concept of
grave and sudden provocation has seen lengthy debates as to what
comprises of grave and sudden provocation.

It was held in a recent judgment in State of Rajasthan v.

Ramesh1 that exception 1 to 300 IPC provides that a 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
person who gave the provocation.

1(2015) 17 SCC 673

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The concept of grave and sudden provocation has 4 elements, which

are:

1) There must be a provocation

As per the first element there is absolutely no question of debate

whether provocation was caused or not. The accused and his wife
had no apparent history of matrimonial problems; hence the
provocation was only on account of the accused witnessing what he
believed to be his wife to be in a compromising state with another
man. Hence there was provocation. This very provocation is an
essential element in invoking the first exception to murder since this
leads the accused to be in a state without self control1

2) The provocation must be grave and sudden2

That from the first instance when the accused saw what he believed
to be his wife in a compromising state, the accused did have time to
cool off as he came late to home and that too in an inebriated state
which shows he regained the power of self control, however that
episode left him in pain, anger, disgust and extreme sadness, in
order to suppress his emotional state the accused voluntarily went
into an inebriated state. However the next day the accused went
from office to home in anticipation or in hope that his wife would not
be cheating on him but to find the re-occurrence of the same
episode as the day before escalated the emotions of the accused in
such a way that he lost or was deprived of the power of self control
due to the provocation caused by the acts of the deceased whom he
thought to be his wife. This lead to the accused hitting the woman
with a flower pot at that very instant, meaning there was no time for
him to think logically nor was there a cool of period where he could
forsee the legal consequences of his actions. He acted on grave and
sudden provocation.

The previous act on the day before the alleged crime created such a
mental background of hate, anger and sadness that the accused
having seen the same repeated could not control himself and used a
flower pot to cause a bodily injury which resulted in the death of the
deceased.

1 Murlidhar Shivaram Patekar v. State of Maharashtra (2015) 1 SCC

694
2 (2017) 5 SCC 415

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There is no reason to suggest that a subsequent provocation cannot

be used as a defense since in the landmark judgment of K. M.
Nanavati vs. State Of Maharashtra1 it was held that
The Indian law, relevant to the present enquiry, may be stated thus:
(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. (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 s. 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.

Hence the mental background created by the previous act which was
witnessed by the accused the previous day was fundamental in
provoking such a response in a similar situation the next day, which
infact lead to the accused hitting the deceased with the flower pot.

the Lahore High Court, in Jan Muhammad v. Emperor2, held that

the case was governed by the said exception. The following
observations of the court were relied upon in the present case:"In
the present case my view is that, in judging the conduct of the
accused, one must not confine himself to the actual moment when
the blow, which ultimately proved to be fatal was struck, that is to
say, one must not take into consideration only the event which took
place immediately before the fatal blow was struck. We must take
into consideration the previous conduct of the woman should be
looked at as one prolonged agony on the part of the husband which
must have been preying upon his mind and led to the assault upon
the woman, resulting in her death.”

11962 AIR 605

2AIR 1934 All 833

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Therefore it is pertinent to understand that the accused was in

prolonged a mental state of agony and despair on account of
witnessing something grotesque and the trigger button was hit when
he witnessed the same incident again the next day, hence grave and
sudden provocation was absolute.

3) By reason of such grave and sudden provocation the offender

must have been deprived the power of self control1

The very reason why the death of the deceased took place was on
account of provocation by the deceased, who the accused thought to
be his wife, without such provocation there was no reason as to why
the accused would lose power over his self control and kill his wife
with a flower pot especially there being no evidence of matrimonial
problems between the accused and his wife.

That he saw his wife for the second day in a row in a compromising
state was too much to handle and his emotions got the better of
him, he controlled himself the first time but the second time,
possession of self control was inadvertently lost. Therefore this is a
case of exception to murder due to grave and sudden provocation2

4) The death of the person who gave provocation or any other

person, by mistake or accident must have been caused.

The unfortunate death of the deceased was infact caused due to

mistake of identity as the accused thought that it was his wife who
was actually in the compromising state that he witnessed twice. The
accused had no reason to suspect anyone else but his wife in the
compromising state since he did not have any knowledge to the fact
that his wife had given keys of the house to her friend. Also the
allusive behavior of his wife the previous day when she did not tell
him who she spoke to on the phone made him suspicious of her
activities. On account of this suspicion and the fact that he would not
expect anyone else but his wife to be home, when he came to collect
his papers he found the door unbolted and saw a man and a woman
in a compromising state, he did not care to identify whether infact it
was his wife or not.

1
Sukhlal Sarkar V. Union of India (2012) 5 SCC 703
2 Saroj V. State of West Bengal (2014) 4 SCC 802

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1.2 WHETHER WITNESSING THE SAME INSTANCE

TWICE AMOUNTS TO A FRESH INSTANCE OR AN
INSTANCE IN A SERIES OF EVENTS.

The accused discovered his wife or the woman he believed to be his wife in
a compromising state for the first time by accident when he came home to
collect certain documents. The second time he discovered the woman with
another man he believed that it is not coincidence but reality that his wife
is cheating on him.

Hence it was a series of acts by the woman who he believed to be his wife
but the instance was fresh in the sense that a previous act created a
mentally unstable situation for the accused wherein he lost possession of
self-control after witnessing the act for a second time. The instance is said
to be fresh because it creates or recreated certain emotions and feelings in
the mind of the accused again or certain emotions were created for the
first time, which resulted in uncontrollable actions.

The Allahabad High Court in a recent decision, viz., Babu Lal v.

State1 applied the exception of grave and sudden provocation to a
case where the husband who saw his wife in a compromising
position with the deceased killed the latter subsequently when the
deceased came, in his absence, to his house in another village to
which he had moved. The learned Judges observed:

"The appellant when he came to reside in the Government House

Orchard felt that he had removed his wife from the influence of the
deceased and there was no more any contact between them. He had
lulled himself into a false security. This belief was shattered when he
found the deceased at his hut when he was absent. This could
certainly give him a mental jolt and as this knowledge will come all
of a sudden it should be deemed to have given him a grave and
sudden provocation. The fact that he had suspected this illicit
intimacy on an earlier occasion also will not alter the nature of the
provocation and make it any the less sudden."

11962 (5) FLR 486

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1.3 WHETHER THERE WAS NO SCOPE FOR

PREMEDITATION AND CALCULATION

Premeditation can be defined as the active intent to anticipate future

events and the planned consequential reaction to those events1. In
this case the accused never planned on going to the office and
coming back home to collect the documents neither did he plan on
return on coming home early the following day to check up on his
wife. Which indicates that there was no set pattern to the
functioning of the accused. As far as the reaction of the accused
towards the woman he thought to be is wife is concerned, there
does not seem to be any level of premeditation involved, the
accused simply lost possession of self-control and acted in a
provoked manner by hitting the woman with a flowerpot, which
clearly is no murder weapon. This very fact makes it crystal clear
that the accused did not premeditate his attack and purely acted on
impulse of grave and sudden provocation.

The two vital indicators of intent which the court has to take into
consideration before holding the accused guilty of an offence under
302 and 304 part I is premeditation and intention to kill. Hence
having regard to facts of the case2.

1 Prabhakar Vithal Gholve v. State of Maharashtra (2016) 12 SCC

490
2 (2012) 13 SCC 663

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and

authorities cited, may this Hon‘ble Court be pleased to:

1. Acquit Raj for the offence of committing murder under

Sections 300/301 of The Indian Penal Code, 1860.

2. Declare a sentence of 10 years under Section 304 part II

of The Indian Penal Code, 1860.

AND/OR

Pass any other order it may deem fit, in the interest of Justice,
Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: Chandigarh S/d_____________

Date: 15th October, 2018 Council for Accused

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