BEFOE THE HON’BLE HIGH COURT OF MAHARASHTRA

APPELLATE JURISDICTION

CRIMINAL APPEAL No . 2345

RUSHI ……………APPEALLANT

V/S

STATE OF MAHARASHTRA …………… RESPONDENT

FILED UNDER SECTION 374 OF CRIMINAL PROCEDURE CODE, 1973

UPON THE SUBMISSION TOHON’BLE JUDGES OF THE

HIGH COURT MAHARASHTRA

MEMORIAL ON BEHALF OF THE APPEALLANT

1
 TABLE OF CONTENTS

SR. PARTICULA PAGE

NO. RS NO.
1. Table of Contents 02
2. List of Abbreviations 03
3. Index of Authorities 04
4. Statement of Jurisdiction 05
5. Statement of Facts 06
6. Statement of Issues 07
7. Summary of arguments 08-09
8. Arguments Advanced
ISSUE 1 10-11
12-14
ISSUE2
15
ISSUE3
16
ISSUE4
9. Prayer 17

INDEX OF ABBREVIATION
2
AIR All India Reporter
SC Supreme Court
Cr LJ Criminal Law
Journal
LR Law Review
IEA Indian Evidence
Act
IPC Indian Penal Code
HC High Court
Hon’ble Honourable
v/s Versus

INDEX OF AUTHORITIES

3
1. Laxman Kiran Nagare v/s State of Maharashtra

2. Narayan v/s State of Madhya Pradesh

3. Babu v/s State of mahatashtra

4. Venkatesan v/s State of Tamilnadu

5. Ongole Ravikanth v/s State of A.P

6. Shaikah Bakshu and ors v/s State of Maharashtra

7. State of U.P v/s Madan Mohan and ors

8. Amar Singh v/s State of Madhya Pradesh

9. Ramachandra Reddy and anr. v/s the public prosecutor.

STATEMENT OF JURISDICTION

4
The Hon’ble High Court enjoys the right to preside over this

matter by virtue of Section 374 (2) in Chapter XXIX of Appeals,

of The Code of Criminal Procedure, 1973.

Section 374 – Appeals from convictions.

(1) ----

(2) Any person convicted on a trial 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.

STATEMENT OF FACTS
5
Neha and Rushi were married since 2010 but due to some frequent quarrels Neha left her

matrimonial house with her elder daughter to live with her father Ratnesh Mahtre. Rushi kept

his younger daughter with his sister. Neha then came to his sister’s house and forcefully took

her younger daughter with her.

Two days after this incident Rushi and Ratnesh Mahtre met at a market place and began to

quarrel and both fell down. Ratnesh Mahtre slapped Rushi, saying that he will kill him. Rushi

on such provocation from Ratnesh Mahtre took a stick lying nearby and struck a blow on the

shoulder of Ratnesh Mahtre. Ratnesh Mahtre who was suffering from a diseased spleen fell

down. Ratnesh Mahtre, gave his Dying Declaration regarding the fight and Rushi's

knowledge about the enlarged spleen, before he died.

Colaba Police arrested Rushi and filed a charge sheet in the Session's Court of Fort and

pinned Amogh Chandel as the Investigating Officer. Evidence was led by Prosecution in the

Session's Court and during trial an eyewitness stated that it was Ratnesh Mahtre who slapped

Rushi and started the fight. Session's Court relying on facts as declared by Ratnesh Mahtre

convicted Rushi for commission of murder and sentenced him to life imprisonment.

Subsequently, a criminal appeal was filed by Rushi in the High Court of Mumbai . This appeal

has been kept at the stage of final hearing on date, 17th February, 2017.

STATEMENT OF ISSUES

6
Issue that is presented via this appeal before the Hon’ble High Court for
discussion and adjudication is as follows;

THE MAIN ISSUES BEFORE THE SESSIONS COURT,

PANIPAT ARE

I. WHETHER THE ACCUSED SHIKHAR AND

SARDA ARE LIABLE FOR DOWRY DEATH
UNDER SECION 304-B OF IPC?
II. WHETHER THE ACCUSED SHIKHAR AND
SARDA ARE LIABLE FOR MURDER UNDER
SECTION 302 OF IPC?
III. WHETHER THE ACCUSED SHIKHAR AND
SARDA ARE LIABLE FOR ABETMENT OF
SUICIDE UNDER SECTION 306 OF IPC?

7
 SUMMARY OF ARGUMENTS
1. Whether the conviction under Sec.300 by the Sessions Court

should be set aside?

It is humbly submitted before this hon’ble court that, In the instant case it lies

before the Hon’ble Court that the act of the Appellant is not subject to Murder

as specified u/s 300 of IPC, 1860. The lack of intention of the Appellant

clearly states that such act of his does not amount to murder though as claimed

by the Respondent that he was aware of the Respondent’s disease spleen, but

such act of the Appellant was done because of sudden grave and provocation

there was no intention of the Appellant to kill the Respondent. The conviction

made by the sessions court against the Appellant is not sustainable as there was

no intention to cause any bodily injury that would amount to death it was done

in exercise of good faith in private defense. The exception provided in the

provisions of sec.300 of IPC, 1860 clearly states that the Appellant shall not be

punished for murder.

2. Whether the accused can be convicted on the basis of dying

declaration?

It is humble submitted before this hon’ble court that As provided u/s 32(1 ) of

IEA, 1872 in the evidentiary value of dying declaration that a conviction in

murder case on the basis of truthful dying declaration even made to the S.I of

police and to the parents, to convict the accused if there were other

circumstantial evidence to support it, in the instant case the corroborative

evidence is the eye witness who stated in the session’s court that it was the

Respondent whom slapped the Appellant and started the fight. A conviction

might be given on the sole evidence of dying declaration but not without

8
 ignoring the corroborative evidence.

3. Whether the accused intentionally caused the death of deceased?

It is humble submitted before this hon’ble court that, No, the accused never intended to kill

the deceased person ( ratnesh mahtre ).

In the quarrel it was deceased person who slapped the accused first, by saying that he will kill

him[accused]. In the heat of rage accused took a stick lying nearby and struck a blow on the

shoulder of Ratnesh mahtre as a result death accured but accused had no intention to cause

death of the deceased.

4. Whether the provocation was grave and sudden enough in the exercise of the

right of private defence?

It is humbly submitted before this hon’ble court that, Yes, accused act was the result of

provocation and provocation was grave and sudden enough in the exercise of the right of

private defence.

9
 ARGUMENTS ADVANCE
ISSUE 1

I. WHETHER THE ACCUSED SHIKHAR AND

SARDA ARE LIABLE FOR DOWRY DEATH
UNDER SECION 304-B OF IPC?
The counsel on behalf of the complaint would humbly submit before the Learned Session Court
that the accused is guilty for dowry death under Sec.304B of IPC
as everything changed with the
deceased after the marriage. Even though the agreed money
was fully paid. The in laws of the
deceased pressurize her for more money. There was demand of rs 500000 in the name of loan
which never returned can be considered as dowry
-
1, but his behavior had changed towards her

Explanation.For the purposes of this sub-section, "dowry" shall have the

same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of
1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a
term which shall not be less than seven years but which may extend to
imprisonment for life.]

ISSUE 2
10
is it a cruelty as per Sec. 498A of IPC ?

The counsel on behalf of the complaint would humbly submit

before the honble Court
that the accused is guilty for cruelty under Sec.498A
of IPC
Arundhati’s relation with him deteriorated and on many occasions,which

amounts to cruelty , fights turned physical in drunken state, Shikhar used to

blame Arundhati for being from a family of beggars which would make her

depressed and . This remark hurt her a lot and once she even tried to slit her

wrists and end her life but was saved by her sister in law. Which explains the

intensity of the scene

11
12
 PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced
and authorities relied upon, it is most humbly prayed, that this Hon’ble
Court may be pleased to;

1. Allow the appeal.

2. Set aside the conviction by the Sessions Court and acquit the appellant of all the
charges.

And/or pass any other order that this Court may deem fit in the interest of
Justice, Equity and Good Conscience, for which the Appellant, shall in duty
bound, forever pray.

COUNSEL ON BEHALF OF
APPELLANT

13
14