IN THE COURT OF HON’BLE DELHI HIGH COURT, DELHI

CRIMINAL APPEAL NO.____________________ OF 2012

IN THE MATTER OF

ASHOK ………. APPELLANT/ACCUSED

VERSUS

STATE OF NCT OF DELHI ...………… RESPONDENT

APPEAL UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE, 1973

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE HIGHT COURT OF DELHI

WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT

SUBMITTED TO : SUBMITTED BY:

Ms. NIDHI MINZ COUNSEL
ASSISTENT PROFESSOR, LC – II AOUN ABBAS
FACULTY OF LAW SEMESTER V, 3RD YEAR
UNIVERSITY OF DELHI SECTION E, LC= II
ROLL NO. – 198456
EXAM ROLL NO.- 19311806740

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 TABLE OF CONTENT

List Page No.

List of Abbreviations ------------------------------------------------------- 3
Index of Authorities -------------------------------------------------------- 4
Statement of Jurisdiction--------------------------------------------------- 5
Statement of facts----------------------------------------------------------- 6
Statement of Issues--------------------------------------------------------- 7
Summary of Arguments --------------------------------------------------- 8
Arguments Advanced ------------------------------------------------------ 9
Prayer ------------------------------------------------------------------------ 16

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 LIST OF ABBREVIATIONS

1 H.C High Court

2 S.C Supreme Court
3 A.I. R All India Reports
4 Hon’ble Honourable
5 Vs. Versus
6 Ors. Others
7 SCC Supreme Court Cases
8 Sec. Section
9 IPC Indian Penal code
10 CrPC Code of Criminal Procedure

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 INDEX OF AUTHORITIES

CONSTITUTION AND STATUTE

1. The Constitution of India, 1949
2. The Indian Penal Code, 1860
3. Code of Criminal procedure, 1973

CASES
S.NO JUDICIAL PRECEDENTS CITATION

1 Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC 444

2 Deo narain v. State of U.P. (1973)1 SCC 347: AIR 1973

SC 473
3 Surain singh v. State of Punjab AIR 2017 SC 1904

4 Rajwant v. State of Kerala AIR 1966 SC 1874

5 Kesar Singh v State of Haryana (2008) 15 SCC 753:

2008 (6) Scale 433
6 State of U.P. v. Ram Swarup (1974)4 SCC 764
AIR 1974 SC 1570
7 Virsa Singh v. State of Punjab AIR 1958 SC 465

8 James Martin v. State of Kerala (1974)2 SCC 203

9 Chahat Khan v. State of Haryana (1972) 3 SCC 408

10 Imtiaz v. State of U. P (2007) 15 SCC 299:

(2007) Cr LJ 1663 (SC)

Websites
https://indiankanoon.org/
https://www.livelaw.in/
https://www.scconline.com/

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 STATEMENT OF JURISDICTION

The appellant has filed the appeal before the Hon’ble High Court of Delhi, In the matter of
Ashok vs State of NCT of Delhi, under section 374 (2)1 for the Code of Criminal Procedure,
1973. The respondent reserves the right to challenge the same.

The present memorandum sets forth the facts, contention and arguments.

1
Section 374 (2) of Code of Criminal procedure, 1973 :- 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 2 has been passed against him or against any other person convicted at the same trial],
may appeal to the High Court.

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 STATEMENT OF FACTS

• Ashok was driving his car on a narrow village road in Delhi and was getting late.
• In front of him was a truck carrying goods, for a long time the truck driver, Sohan,
was not giving room to Ashok to overtake the truck.
• Ashok got very agitated for driving his car at a snail speed for a long time.
• After some time, Ashok was able to overtake the truck and stopped the car in front of
truck, forcing the truck to stop.
• Enraged Ashok then got out of his car and pulled the driver, Sohan, out of the truck
and beat up Sohan and snatched the truck keys.
• Sohan called up his employer Kuldeep who rushed to the spot.
• There was loud Quarrel between Ashok and Kuldeep about incident.
• Soon it became violent, Just as Kuldeep brandished a pistol, Ashok quickly brought
out his own pistol from his pocket and shot at Kuldeep as many as four times in the
chest and abdomen.
• Ashok fled the spot and Kuldeep died on the way to hospital.
• Ashok was later arrested and charged for murder.
• Session court rejected his both pleas of Private defence and Sudden fight and
convicted him for murder and sentenced him to the life imprisonment.
• Ashok has filed an appeal before the Hon’ble High Court of Delhi against the
sentence of session court.
• That the case is listed for argument before high court.

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 STATEMENT OF ISSUES

1. Whether the accused can be prosecuted under section 302 of Indian penal code, 1860?
2. Whether the act done by appellant can be considered an act of self-defence?
3. Whether the act of the deceased led to sudden fight?

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 SUMMARY OF ARGUMENTS

1. Whether the accused can be prosecuted under section 302 of Indian penal code,
1860?
It is humbly contended that the accused Hon’ble Session court correctly held the
appellant as guilty of murder of Ashok under section 302, Indian Penal Code, 1860
. Section 300 of Indian Penal Code, 1860 gives the definition of murder and
enumerated the ingredients of the offence.

2. Whether the act done by appellant can be considered an act of self-defence?

It is most humbly submitted before this Hon’ble High Court that the nature of the
injuries and the nature of weapon used is proportionally excessive against the threat as
deemed by the appellant.

3. Whether the act of the deceased led to sudden fight?

It is most humbly submitted before this Hon’ble High Court that the act of deceased
doesn’t led to sudden fight.

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 ARGUMENTS ADVANCED

1. Whether the accused can be prosecuted under section 302 of Indian

penal code, 1860?

It is humbly contended that the Hon’ble Session court correctly held the appellant as guilty of
murder of Kuldeep under section 3022 of Indian Penal code. Section 300 of Indian Penal code
gives the definition of murder and enumerates the ingredients of the offence.

Section 3003 of Indian Penal code contemplated that a person is guilty of murder if he
intentionally causes the death of a person or cause such bodily injury as he knows, is likely to
cause the death of that person or cause such bodily injury, which is the ordinary course of
nature results into death or commits an act so dangerous that it must, in all probability cause
death of that person.

Based upon the clauses of Section 300, IPC. We found that the act of appellant fulfils all the
clauses. Firstly, act was done to cause death of deceased. Secondly, appellant knows had full
knowledge of his act which causes such bodily injury resulted into death. Thirdly, the injury
was sufficient enough to cause the death. Fourthly, act was so Imminently dangerous so as to
cause death because appellant had fired four rounds on chest and abdomen.

2
Section 302, Indian Penal Code, 1860: - Whoever commits murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to fine

3
Section 300, Indian Penal Code, 1860: - Murder. —Except in the cases hereinafter excepted, culpable
homicide is murder,

(Firstly) —if the act by which the death is caused is done with the intention of causing death, or—

(Secondly)—If it is done with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, or—

(Thirdly)—If it is done with the intention of causing bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death, or—

(Fourthly)—If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as aforesaid

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 In the case of Pulicherla Nagaraju vs. State of A. P4 it was observed and held by the Court
that the intention to cause death can be gathered generally from a combination of a few or
several of the following, among other, circumstances:

I. nature of the weapon used;

II. whether the weapon was carried by the accused or was picked up from the spot;
III. whether the blow is aimed at a vital part of the body;
IV. the amount of force employed in causing injury;
V. whether the act was in the course of sudden quarrel or sudden fight or free for all
fight;
VI. whether the incident occurs by chance or whether there was any premeditation;
VII. whether there was any prior enmity or whether the deceased was a stranger;
VIII. whether there was any grave and sudden provocation and if so, the cause for such
provocation;
IX. whether it was in the heat of passion;
X. whether the person inflicting the injury has taken undue advantage or has acted in a
cruel and unusual manner;
XI. whether the accused dealt a single blow or several blows.

In the case of Rajwant Singh v. State of Kerala5, the Supreme Court of India had observed
that the second clause of Section 300 will apply if there is first a purpose to inflict bodily
damage and then a ‘subjective knowledge’ that death is a foreseeable result of the intentional
injury.

In the Virsa Singh v. State of Punjab case 6, the Supreme Court while postulating the
ingredients of Clause (3) of Section 300, stated that ‘it must be proven that there was a desire
to inflict that specific bodily damage, that was to say, that it was not incidental or inadvertent,
or that some other form of injury was intended, among other things.

4
Pulicherla Nagaraju vs. State of A. P (2006) 11 SCC 444
5
Rajwant Singh v. State of Kerala, AIR 1966 SC 1874
6
Virsa Singh v. State of Punjab, AIR 1958 SC 465

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In the case of Chahat Khan v. the State of Haryana7. Supreme court observed that “When vital
areas of the body, like the abdomen, are injured by a deadly or sharp-edged object, the
unavoidable conclusion is that the accused meant to murder the deceased”.

So based upon the above cases and clauses of section 300, IPC we found that the injuries caused
by the appellant is of such nature that it will likely to cause death effectively, also based upon
the injuries we found that injuries that intent of the appellant was murder.

2. Whether the act done by appellant can be considered an act of self-

defence?

It is most humbly submitted before this Hon’ble High Court that the nature of the injuries and
the nature of weapon used is proportionally excessive against the threat as deemed by the
appellant. The right of private defence of the body extends to the causing of death or any other
harm to the assailant if (i) An assault causing reasonable apprehension of death, or (ii) An
assault causing reasonable apprehension of grievous hurt.

Section 1008 of Indian Penal code deals with the right of private defence of the body extends
to causing death. It is not necessary that the accused has obtained any injury or not. Mere
reasonable apprehension would be sufficient for the exercise of right of private defence. The
right of private defence must be exercised in proportion to the threat.

7
Chahat Khan v. State of Haryana, (1972) 3 SCC 408
8
Section 100 of Indian Penal code: - The right of private defence of the body extends to the causing of death
or any other harm to the assailant under the following circumstances
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section,
to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the
exercise of the right be of any of the descriptions hereinafter enumerated, namely: —
(A) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence
of such assault;
(B) —Such an assault as may reasonably cause the apprehen-sion that grievous hurt will otherwise be the
consequence of such assault;
(C) — An assault with the intention of committing rape;
(D) —An assault with the intention of gratifying unnatural lust;
(E) — An assault with the intention of kidnapping or abduct-ing;
(F) — An assault with the intention of wrongfully confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his
release.

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Section 99 of Indian Penal code provides the scope of private to which it can be exercised. It
clearly states that “the right of private defence in no case extends to the inflicting of more harm
than it is necessary to inflict for the purpose of defence”.

In the case of James Martin v. State of Kerala,9 Court observed that there are a number of
factors that need to be considered to find whether the right of private defence is available or
not. Factors such as injuries received by the accused, imminence of danger to his safety, injuries
that are caused by the accused and also the circumstances in which the injuries were caused are
taken into consideration. It also noted that the person who is apprehending danger cannot weigh
in golden scales on the spur of the moment as to what amount of force is required to ward off
the threat of the assailant. It is difficult to expect a person to be composed and measure the
force required. Such situations are pragmatically viewed keeping in mind normal human
reaction and conduct.

In the case of Deo Narain v. State of U. P10, The Court was of the view that the right to private
defence of body commences as soon as the reasonable apprehension of danger arises and it is
not necessary for the accused to show that he has sustained any injuries. And while protecting
himself from the apprehended danger to his life, a person cannot be expected to measure the
amount of force employed. So it’s very normal that a person protects himself with full capacity
against any danger to his life. Therefore, the amount of force to be used to prevent the injury
can’t be judged on a golden scale and it has to be judged according to the facts and
circumstances of each case

9
James Martin v. State of Kerala (1974)2 SCC 203
10
Deo narain v. State of U.P (1973)1 SCC 347: AIR 1973 SC 473

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In the case of State of U.P. v. Ram Swarup11, Supreme Court observed that the right of private
defence is a right of defence, not vengeance. It is available in face of imminent threat to those
who act in good faith and is in no case can the right be approved to a person who stage-manages
a situation wherein the right can be used as a safeguard to justify an act of aggression. It is also
observed that If a person goes with a gun to kill another, the intended victim has the right of
self-defence, but there is no right to kill him to avert him from acting in self-defence. While
providing for the right of private defence, the Indian Penal Code has surely not developed a
mechanism whereby an attack may be incited as an occurrence for killing.

Based upon the section 100 of IPC with subject to limitation given in section 99 of IPC and
precedents of above case laws, the respondent is of view that appellant has acted beyond the
scope of private defence. Firing of four round is beyond the scope of private defence as this
could have been avoided very in the initial stage of argument. Also deceased has just
brandished the gun not pointed it towards the appellant, on the contrary appellant has acted
beyond the necessity and fired 4 rounds.

11
State of U.P. v. Ram Swarup (1974)4 SCC 764 AIR 1974 SC 1570

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 3. Whether the act of the deceased led to sudden fight?

It is most humbly submitted before this Hon’ble High Court that the act of deceased doesn’t
led to sudden fight. Sudden fight is the fourth exception of Section 300 of Indian Penal code.

In Surain singh v. State of Punjab. Supreme court observe that “there is mutual provocation
and aggravation, and it is difficult to apportion of the blame which attaches to each fighter.
Both the parties, notwithstanding with the fact who stuck the first blow and who initiated the
quarrel, are put on equal footing for their subsequent conduct and guilt thereof. The homicide
committed is clearly not traceable to unilateral provocation. Therefore, no whole blame
cannot be placed on one side. A fight suddenly takes place, for which both parties are more
or less to be blamed”12.

“The requisites of Sudden fight are as follows; -

A. The murder should have been committed without premeditation.

B. It should have been committed in a sudden fight.
C. It should have been committed in the heat of passion.
D. It should have been committed upon a sudden quarrel.
E. It should have been committed without the offender having taken undue advantage or
acted in a cruel or unusual manner.”13

All the five conditions must be satisfied in order to claim the above exception of sudden
fight.

There has to have a “fight”. Where there is no fight at all, the Exception is not attracted. In
the case of Kesar Singh v State of Haryana, it is stated that “But, the word “fight”, which is
one of the key essentials of the exception, is not defined under the IPC. It conveys something
more than a verbal quarrel”. It should imply mutual attack in which both the parties
participate. It implies exchange of blows. It takes two or more to make a fight. An actual
attack by one party and retreat by another party doesn’t not constitute fight. One sided attack
cannot be a fight. Nevertheless, attack by one and preparation to attack by another constitutes
a fight.14

12
Surain singh v. State of Punjab, AIR 2017 SC 1904
13
PSA PILLAI, CRIMINAL LAW 671 (14th ed. 2019)
14
PSA PILLAI, CRIMINAL LAW 672 (14th ed. 2019)

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The words “Sudden fight” or “upon sudden quarrel” implies the absence of previous
deliberation or determination to fight. It Indicates something in the nature of a “free fight”.
Free fight is said to take place when both sides mean to fight from the start, go out to fight
and there is a pitched battle.

In the case of Imtiaz v. State of U.P., Supreme court held that when an accused inflicted three
fatal blows on with and axe on the deceased who are unarmed. It was held that it could not be
said to be a sudden fight, as a fight postulates a bilateral transaction in which blows are
exchanged by both the parties. When the aggression is only on one side. It cannot be said to
be a fight.15

Based upon the exception of sudden fight and above case laws, the respondent is of view that
appellant acted in aggression and it was not a fight as both parties were not participating
equally also to notate that appellant dominated the whole argument with aggression and one-
sided violence since beginning of the issue. Mere verbal argument doesn’t constitute a fight.

15
Imtiaz v. State of UP (2007) 15 SCC 299: (2007) Cr LJ 1663 (SC).

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 PRAYER

In the light of the issue raised, arguments advanced and authorities cited, may this Hon’ble
High Court be pleased to:

1. Declare and adjudge that Ashok/appellant is guilty of murdering Kuldeep.

2. Uphold the conviction of the Hon’ble Session Court.

Place: - S/D: _________________

Date: - PUBLIC PROSECUTER

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