Tryst Moot Court Competition 2015: For Offences Charged Under: Section 302 of The Indian Penal Code, 1860

TRYST MOOT COURT COMPETITION 2015
BEFORE THE COURT OF SESSIONS
AT MAPULA, KAPUCHA
Union of Kapucha
(Prosecution)
v.
Admiral Zimbu
(Defence)
For Offences Charged Under:

Section 302 of the Indian Penal Code, 1860
UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE
Memorandum on behalf of the Prosecution

LAW TRYST MOOT COURT COMPETITION, 2015.
Table Of Contents
1. Table Of Contents…………………………………………………………………………2
2. List Of Abbreviations……………………………………………………………………..3
3. Index Of Authorities…………………………………………………………………….4-6
4. Statement Of Jurisdiction…………………………………………………………………7
5. Statement Of Facts………………………………………………………………………..8
6. Statement Of Issues……………………………………………………………………….9
7. Summary Of Arguments…………………………………………………………………10
8. Arguments Advanced
1. Whether the accused is guilty of Murder under section 302 of KPC?...................12-22
2. Whether the accused is benefited under Exception 1and 4 under section 300 of
KPC?.......................................................................................................................23-27
9. Prayer…………………………………………………………………………………….28
2
LIST OF ABBREVIATIONS
AIR All India Reporter
All Allahabad High Court
Cal. Calcutta High Court
Cri LJ/ Cr LJ Criminal Law Journal
Cr,P.C Code of Criminal Procedure
Ed. Edition
Guj. Gujarat High Court
IPC Indian Penal Code
Mad. Madras High Court
Ori. Orissa High Court
Pg. Page No.
Raj. Rajasthan High Court
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
S. Section
v. Versus
Bom. Bombay
Para Paragraph
3
INDEX OF AUTHORITIES
Statue Referred:
1. CODE OF CRIMINAL PROCEDURE, 1973 (ACT2 OF 1974)
2. THE INDIAN PENAL CODE, 1860 (ACT4 OF 1860)
Books Referred:
1. K.D. GAUR, Commentary on Indian Penal Code, 2006, Universal Law Publication Co.
2. Durga Das Basu, Criminal Procedure Code, 1973, Vol. 2, 4th Edition 2010, Lexis Nexis
Butteworth’s Wadhwa, Nagpur.
3. Ratanlal & Dhirajlal, The Indian Penal Code, 30th Edition 2006, Wadhwa & Company,
Nagpur.
Website Referred:
1. www.indiakanoon.com
2. www.manupatra.com
3. www.scconline.com
4. www.westlaw.com
5. www.legaldesire.com
6. www.criminologyatoxford.htm
7. www.kenyalaw.com
8. www.lawresource.com
9. http://www.hrdiap.gov.in/drugs/week2/Iindian%20Penal%20Code
4
Table of Cases:
1. Ajit Singh v. State of Punjab, (2011) 9 SCC 462……………………………………………..13
2. Akhila Parida v. State of Orissa, 1987 Cr IJ 609……………………………………………24.
3. Amarjeet Singh v. State of Rajasthan, 1996 Cr. LJ 185…………………………………….26
4. Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472………………………….16
5. Bati Kunjami v. State, 1996 Cr. LJ 1431 (Ori.)……………………………………………..24
6. Budhi Lal v. State of Uttarakhand.AIR 2009 SC 87 (2008) 14 SCC 647…………………16.
7. Gyanendra kumar, 1972 LJ 308: AIR 1972 SC 502……………………….……….............24
8. In re Thangavelu, 1972 Cr.LJ 390 (Mad)…………………………………………………….20
9. James v. State of Kerala (1995) 1Cr LJ 55 (Ker)…………………………………………….17
10. Karthik v. State of Orissa, 1995 2 Cr LJ 2019……………………………………….…25,27
11. KM Nanavati v. State of Maharashtra AIR 1962 SC 605………………………….22,23,25
12. Labhu Ram v. State of Punjab, 1996 Cr LJ 399……………………………………………..18
13. Laxminath v State of Chhattisgarh, AIR 2009 SC 1383: (2009) 3 SCC 519 ……………16
14. Maharashtra v. Bharat Chaganlal Raghani, AIR 2002 SC 409 at 432………………….20
15. R. v. Mathews, (2003) EWCA Crim 192(CA (Crim Div)]: 2003 CLY 47 (118)……….13.
16. R. v. Nedrick (1986) 1WLR 1025: 1986 CLY 651………………………………………….13
17. R. v. Woollin, (1999) 1 AC 82: 1998 CLY 1052……………………………………………13
18. Ram Swarup v. State of Rajasthan, 1994 Cr. LJ 3382 (Raj……………………………….18
19. Ramkripal v. State of M.P, 1995 Cr. LJ 1275 (MP)………………………………………..18
20. Reg v. Govinda (1876) ILR 1 Bom 342………………………………………………………19
21. Samul v State of Karnataka, 1996 Cr. LJ 1165…………………………………………….26
5
22. Sehaj Ram, 1983 Cr. LJ 993: AIR 1983 SC 614: (1983) 3 SCC 280 : 1983 SCC (Cr.)
621…………………………………………26
23. Shivaji Dutt Patil v. State of Maharashtra, 1994 Cr. LJ 1189(Bom)………………………21
24. State of Karnataka v. Surendra, 1995 Cr LJ 3824(Kant.)………………………………24,27
25. State of Kerala v. Mullan, 1993 Cr. LJ 1512 (Ker)………………………………………….21
26. Sukh Ram v. State of Rajasthan (1995) 1Cr. LJ 257 (Raj)………………………………….17
27. Thamilarasan v. State of T.N, 1996 Cr. LJ 274 (Mad.)…………………………………….18
28. Virsa Singh v. State of Punjab (1981) 3 SCC 616………………………………………….21
6
Statement Of Jurisdiction
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section
209 of the Code of Criminal Procedure, 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 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
(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.’
7
Statement Of Facts
Mr. Zimbu was the Vice Admiral of the Naval Staff – the second highest ranking naval officer of
the country of Kapucha. He married Ms. Amelia in the year 2000 before the Sub-Registrar of the
port city of Mapula. They had a son and were settled in the Naval Base in Mapula.
II
On April 1, 2014 he was promoted to a higher post of Admiral of Naval Staff and was
transferred to Bapula, the capital city of Kapucha. Thereafter, he came home once every month
to meet his family and during each trip he ensured at least he spend a few days’ time with his
family before returning to the Strategic Naval Base in Bapula.
III
In May, he was busy on a naval mock drill exercise, so he informed his wife that he could not
visit the family. The exercise ended by the end of June, 2014. He decided to surprise his family
by planning a trip to Mapula. Mr. Zimbu reached his home in the Naval Base at Mapula at 11
PM on June 26, 2014 with a bouquet of flowers and quietly entered the house. When he quietly
opened the bedroom door he was shocked to notice that his wife was sleeping on the bed in the
company of another man. He was enraged but he quietly walked out of the house without making
any noise. He walked to the Naval Office at Mapula that was at a 10 minutes walking distance.
He went to the Arms Store in the Naval Office and asked the Stores Officer to give him a semi-
automatic revolver and four bullets and promised that he would return the same the next
morning. Mr. Zimbu had wrapped the semi-automatic revolver in a black plastic bag before
8
entering his house. Thereafter he called his wife’s male partner a filthy swine and asked him –
“Now that you have broken the purity of my marital life, I cannot stay with my wife. Will you
marry her and take care of my son?” to which the victim immediately retorted – “Am I to marry
every woman I sleep with?” and immediately dashed to the polythene bag. There was a struggle
between Mr. Zimbu and the person and during the course of the struggle three shots were fired
which hit the person resulting in his death.
Mr. Zimbu went to the nearest police station and surrendered himself and narrated the entire
incidence in detail.
9
Statement Of Issues
1. Whether the accused is guilty of Murder under section 302 of KPC?
a. Mens rea
b. Actus rea
2. Whether the accused is benefited under:-
a. Exception 1 of Section 300 of KPC.
b. Exception 4 of Section 300 of KPC.
10
Summary Of Arguments
1. Whether the accused is guilty of Murder under section 302 of KPC?
It is humbly submitted before the honorable Sessions court that the accused has committed a pre
meditated murder in the present case. The accused did not attack the victim the moment he saw
his wife with the victim in a compromising position but instead took around 30 minutes to go to
the navy guns store and issued a revolver on some false pretext which shows he had enough time
to cool down. Moreover, he fired three shots where he could have stopped at one which shows
that he wanted to ensure the death of the deceased. The accused had full intention of murder
otherwise he would not have brought the gun as there was no use of a gun only for talking to the
victim and he would have talked to him to the victim on the first place.
2. Whether the accused is benefitted under Exception 1& 4 under section 300 of KPC?
The petitioner humbly submits that the Exception of Grave and Sudden Provocation will not
apply in this case as the accused took more than 20 minutes in preparing the act of Murder which
is sufficient time for person to cool down. Grave and sudden provocation Exception would have
applied if the accused would have acted on same time when the accused enter his bedroom and
saw his wife sleeping with the victim and he could have killed him by any other fatal weapon
like knife which is easily available in the Kitchen on the spot. As he was the Admiral and he had
the full knowledge about what will be the impact to shoot a person at a point blank range.
Therefore shooting three shots on a point blank range ensures the death of the victim. Therefore
this was a deliberate and premeditated attempt.
11
Arguments Advanced
ISSUE-I
Whether the accused is guilty of Murder under section 302 of KPC?
The S.300 of the KPC defines Murder:-
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-
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 such 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 so imminently dangerous that it must in
all probability, causing 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.
Section 302 of KPC states the punishment for murder-
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also
liable for fine.
12
In Ajit Singh v. State of Punjab,1 it is held that : “In order to hold an offence would fall under S.
302 or S.304 of the Code, the court has to be extremely cautious in examining whether the same
falls under S.300 of the Code which states whether a culpable homicide is murder, or would it
fall under its five exceptions which lay down when culpable homicide is not murder.” In other
words, S.300 states both, what is murder and what is not.
The important elements of crime are:-
“Actus non facit reum, nisi mens sit rea.” There are two components of every crime, a physical
element and a mental element, usually called actus rea and mens rea respectively.
1.) Element of Mens rea present in the act of the accused
Mens rea is a some blameworthy mental condition. There must be a mind at fault to constitute a
crime .The act becomes criminal when the actor does it with a guilty mind. Causing injury to an
assailant in self-defence is not a crime, but the moment injury is caused with intent to take
revenge, the act becomes criminal.2 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 intentional harm caused to him is likely to be
fatal; notwithstanding with 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. This is noteworthy that the
‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of
causing bodily injury coupled with the offender’s knowledge of the likelihood of such injury
1
(2011) 9 SCC 462.
2
http://www.hrdiap.gov.in/drugs/week2/Iindian%20Penal%20Code
13
causing the death of the particular victim is sufficient to bring the killing within the ambit of this
clause. 3
Generalising on the meaning of intention in R. v. Mathews4, Rix LJ observed:
The law has not yet reached a definition of intent in murder in terms of appreciation of virtual
certainty. Woollin 5 was not regarded as yet reaching or laying down a substantive rule of law.
Woollin as a whole found that R. v. Nedrick6 was derived from the existing case law at the time
and the critical direction in Nedrick was approved subject to the change of the word “infer” to
“find”. In those circumstances the judge’s direction went further than the law permitted him to
go by redrafting the Nedrick and Woollin direction into a form where the jury was directed to
find the necessary intent proved provided they were satisfied in the case of any defendant that
there was an appreciation of the virtual certainity of death. The proper direction should have
been in terms of jury were “not entitled to find the necessary intention unless they felt sure that
death, or serious bodily harm, was a virtual certainity as a result of the defendant’s actions and
that the defendant appreciated that this was the case”. However once what is required is an
appreciation of virtual certainty of death, and not some lesser foresight of merely probable
consequences, there is very little to choose between a rule of evidence and one of substantive
laws. On the particular facts of this case, reflected in the judge’s directions, the question of the
appellants’ intentions to save J from drowning highlighted the irresistible nature of the inference
or finding of intent to kill. If the jury were sure that the appellants appreciated the virtual
certainty of J’s death when they threw him off the bridge and also that they then had no intention
3
Ratanlal & Dhirajlal, The Indian Penal Code,34 th Edition, pg 505
4
(2003) EWCA Crim 192(CA (Crim Div)] : 2003 CLY 47 (118)
5
R. v. Woollin, (1999) 1 AC 82 : 1998 CLY 1052
6
(1986) 1WLR 1025 : 1986 CLY 651
14
of saving him from such death. It was impossible to see how a jury could not have found that the
appellants intended J to die. The jury could not possibly have misunderstood the judge’s
directions to them. He had throughout his summing up constantly repeated the need for intent to
kill. In the present case, the accused had mens rea which can be clearly drawn by his conduct.
Mr. Zimbu after seeing her wife sleeping with other man left quietly and went to a naval office
and got a gun. He came back with a semi-automated revolver in his hand. If he had no intention
to murder him then why did he get a gun? He could have talked to him at that time, without
getting a gun, if he had no intention. His conduct clarifies that it was premeditated and calculated
murder.
Clause (2) of S.300 can be where the assailant causes death by a first blow intentionally given
knowing that the victim is suffering from 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, the as 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.7 But in the present case, the accused
had full knowledge and intention to ensure the death of the victim. The accused got a Semi-
Automatic gun and Four bullets and shot three of them from a point blank range 8 . Which
guarantees that the accused want him to be dead.
Clause (3) of S.300 is one of the degree of probability of death resulting from the intended bodily
injury. The clause (B) of S.299 conveys the sense of ‘probable’ as distinguished from the mere
7
8
Moot proposition, pg 2, para 2
15
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 injury, having regard to the ordinary
course of nature.9 The same matter is in the present case, the accused was the Admiral which
means that he was a highly trained officer and he knows the impact of shooting three bullets
from a point blank range. He could have shot anywhere else. But his deeds show that he wants
the man dead. Three bullets most probably result into the death of the person.
Clause (4) of S.300 would be applicable where the knowledge of the offender as to the
probability of death of the person 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 at the higher 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.10
To prove whether the offence is “culpable homicide” or “murder”, it will be convenient to
approach the problem in three stages. The question to be considered at 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 S.299.
If the answer to the question is prima facie found in the affirmative, the stage for considering the
operation of S.300, 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 the question is
9
Supra note 7.
10
Laxminath v State of Chhattisgarh, AIR 2009 SC 1383 : (2009) 3 SCC 519; Budhi Lal v. State of Uttarakhand.AIR
2009 SC 87 (2008) 14 SCC 647; Augustine Saldanha v. State of Karnataka,(2003) 10 SCC 472
16
negative the offence would be ‘culpable homicide not amounting to murder’, punishable under
the first or the second part of the S.300, depending, respectively, on whether the second or the
third clause of S.299 is applicable. If this question is found in the found in the positive, but the
case comes within any of the Exceptions enumerated in S.300, the offence would still be
‘culpable homicide not amounting to murder’, punishable under the first part of S.304, Penal
Code.11 If all the stages are applied in this case, as there is a death of a person so it satisfies the
first stage. The connection between the accused and deceased is established as the accused
surrendered and confessed. His wife was also present at the time of incident. It satisfies the
second stage also. The third stage comes, the case does not fall in any of the exceptions of S.300.
so, it passes the third stage also. Thus, it is clear that the accused is guilty of murder under s.300
of KPC.
Intention to cause death may be revealed by the whole circumstances of the story12. The accused
and his paramour lady-co-accused causing death of the lady’s husband, circumstantial chain
complete, lady’s confession usable against the accused. 13 In present case also the intention to
cause death of deceased can be revealed by the circumstances of the incidence. The accused saw
his wife sleeping with her paramour but walked away quietly. He went to the naval office and
got semi-automatic revolver and four bullets. He came back, opened the door and fired 3 shots
from point blank range.
The respondent-accused first slapped the complainant which was followed by the verbal abuses
and thereafter the respondent brought he licensed gun and fired at the deceased, who died. It was,
thus, a voluntary and intentional act of the respondent which caused the death. Intention is a
11
12
James v. State of Kerala (1995) 1Cr LJ 55 (Ker)
13
Sukh Ram v. State of Rajasthan(1995) 1Cr. LJ 257 (Raj)
17
matter of inference and when act is as a result of intentional firing, intention to cause death is
patent unless the case falls under any of the exceptions. The respondent went to his house and
brought a gun. There was neither sudden fight nor a case where the accused has not taken any
undue advantage. Hence, the present case falls under Section 302 IPC. The same thing happened
in the present case. The accused saw his wife sleeping with her paramour but walked away
quietly. He went to the naval office and got semi-automatic revolver and four bullets. He came
back, opened the door and fired 3 shots from point blank range.
Infliction of stab injury on chest with a lethal weapon was held to be an evidence of the intention
to cause death.14 Two deaths, mother and son, by shot guns, accuse defence that accidental shot
killed both, it was absurd, intention to cause death was held and convicted. 15 The accused
assaulted the deceased even when he fell down, his intention to kill was clear and his conviction
for murder was held to be proper.16 In the present case, the weapon used was a semi-automatic
revolver which was a lethal weapon and shot three bullets back to back which clarifies his
intention is to kill.
The accused on seeing the complexion of new born child , doubted the fidelity of his wife and
caused injury by hacksaw blade on the belly of new born who died, there being no ground to
show that he had no intention to cause bodily injury resulting the child’s death, his conviction for
murder was held to be proper.17 The accused his wife mercilessly in a cruel manner, intensity of
violence in itself showed intention, conviction of murder. 18 In the present case, intensity of
14
Sellamuthu v. State of T.N.,1995 Cr.LJ 2143 (Mad)
15
Ramkripal v. State of M.P ,1995 Cr. LJ 1275 (MP),
16
Labhu Ram v. State of Punjab,1996 Cr LJ 399
17
Thamilarasan v. State of T.N,1996 Cr. LJ 274 (Mad.)
18
Ram Swarup v. State of Rajasthan, 1994 Cr. LJ 3382 (Raj.)
18
violence is ‘much’ as the accused used the semi-automatic revolver and fired three shots from a
point blank range.
2.) Actus reus of the accused:-
Actus reus: - The word actus connotes a ‘deed’ a physical result of human conduct. The
word reus means ‘forbidden by law’.
The actus reus is made up of three constituent parts, namely19: -
1. Human action: ‘conduct’ – there must be conduct of the accused which affected the
victim. In the present case Mr. Zimbu fired three shots to the victim due to which victim
succumbed to his injuries.
2. Result of conduct:- There must be the result of the accused conduct. The only act of
the accused is insufficient to convict him if there is no harm to anyone. There must be
result of his act and in the present case, the result of the action of Mr. Zimbu was the
death of the victim who was his wife’s paramour.
3. Acts prohibited by law:- The act committed by the accused must be unlawful and
unjustified. The acts done by him should be clearly prohibited by the law of the country.
In the present case, we are dealing the acts done by the accused which falls under S.300
of KPC, 1860, which is murder. The punishment for murder lies under S.302 of the KPC.
Melville J stated20:
“…whether the offence is culpable homicide or murder, depends upon the degree of risk to
human life. If death is a likely result, it is a culpable homicide; if it is the most probable result, it
is murder.”
19
Supra. note 2
20
Reg v. Govinda(1876) ILR 1 Bom 342
19
Where bodily injury sufficient to cause death is actually caused it is immaterial to go into the
question as to whether the accused had intention to cause death or knowledge that he act will
cause death.21
The nature & number of injuries and their location as well as the weapon used (a cricket bat) lead
to conclude that to a reasonable person, an attack of the nature launched by the appellant on Dilip
Singh could cause his death. The appellant had knowledge that his intentions are likely to cause
death. Therefore held guilty of culpable homicide not amounting to murder.22
So, the essential ingredients for proving that the accused is guilty of murder that is mens rea and
actus reus is proved, which makes him punishable under s.302 of KPC.
In a case of murder and extortion where contract killers were used, the accused confessed
voluntarily that he caused death. The confession was corroborated by other evidence on record. It
was held that the accused was liable to be convicted for the offence charged.23In the present case
the accused after killing the man went to the police station, surrendered and confessed the entire
incident in detail.24
The accused was living in adultery with a woman and the deceased was in love with the daughter
of the woman and wanted to marry her. Accused questioned the deceased about this who replied
that, if he could have illicit relation with the mother, could marry her daughter. The accused flew
into rage, whipped out a dragger and inflicted a number of injuries to the deceased who died. It
was held that the accused had knowledge of causing death and his offence clearly falls under
21
In re Thangavelu,1972 Cr.LJ 390 (Mad)
22
2013 Cr LJ 481(SC)
23
State of Maharashtra v. Bharat Chaganlal Raghani,AIR 2002 SC 409 at 432
24
20
S.300.25 In the present case, the accused saw his wife sleeping with her paramour but walked
away quietly. He went to the naval office and got semi-automatic revolver and four bullets. He
came back and according to the defence version of statement the accused asked “……..will u
marry her and take care of my children.” The deceased replied “Am I to marry every woman I
sleep with?”26 and the accused fired 3 shots from point blank range. The accused had knowledge
of causing death and shot thrice with the lethal weapon.
The accused who was armed with high power service revolver entered into the residential house
of the deceased at night. He put the revolver near the ear of the daughter of the deceased and
tried to snatch her gold chain, threatening other members of the family. The father and the uncle
of the girl tried to overpower the accused who shots one of which hit the father fatally. His
conviction and sentence under s.302 was upheld. The court observed that the person using the
deadly weapon in such a manner as would endanger human life, cannot be heard to say that there
was no specific intention to kill.27
The court said “The question so far as the intention is concerned, it 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… but whether the intention is there or not is one of fact and not one of law.”28
Mr. Zimbu after seeing her wife sleeping with other man left quietly and went to a naval office
and got a gun. He came back with a gun in his hand. If he had no intention to murder him then
25
State of Kerala v. Mullan, 1993 Cr. LJ 1512 (Ker).
26
27
Shivaji Dutt Patil v. State of Maharashtra, 1994 Cr. LJ 1189(Bom)
28
Virsa Singh v. State of Punjab (1981) 3 SCC 616
21
why did he get a gun? He could have talked to him at that time without getting a gun if he had no
intention.
Zimbu’s conduct clearly shows that the murder was a deliberate and calculated one. The mere
fact that before the shooting, the accused abused the deceased and the accused provoked an
equally abusive reply could not conceivably be a provocation for the murder. Held the facts of
the case do not attract Exception 1 to S.30029.
In K.M. Nanavati v. State of Maharashtra, the accused was a naval commander and came back to
home, without informing her, in order to surprise her. The wife of accused confessed to him of
his extra marital affair with the deceased. The accused went to the naval office and took semi-
automated revolver on wrong pretext. He went to the accused flat and called him swine and
asked him to marry her wife and to accept his children. Deceased retorted “Am I to marry every
woman I sleep with?”. The accused shot six bullets and killed him. The court held that the
accused is guilty of murder under section 302 of IPC.30
29
KM Nanavati v. State of Maharashtra AIR 1962 SC 605
30
Ibid.
22
ISSUE-II
Whether the accused is benefitted under Exception 1& 4 under section 300 of KPC?
Exception 1 of Section 300 of KPC.
Exception 1 of S.300 states that-
Culpable homicide is not murder if the offender, whilst deprived of 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.
Exception1 is not applicable in case of lapse of time sufficient time between act and incident
after provocation- Appeal Dismissed.31 The Exception of Grave and Sudden Provocation will not
apply in this case as the accused took more than 20 minutes in preparing the act of Murder which
is sufficient time for person to cool down. Grave and sudden provocation Exception would have
applied if the accused would have acted on same time when the accused enter his bedroom and
saw his wife sleeping with the victim and he could have killed him by any other fatal weapon
like knife which is easily available in the Kitchen on the spot. . As he was the Admiral and he
had the full knowledge about what will be the impact to shoot a person at a point blank range.
Therefore shooting three shots on a point blank range ensures the death of the victim. Therefore
this was a deliberate attempt.
31
KM Nanavati v. State of Maharashtra AIR 1962 SC 605
23
The act must be done whilst the person doing it is deprived of self control by grave and sudden
provocation. That is, it must be done under the immediate impulse of provocation.32
Where there is sufficient time for cooling down, there would be no sudden provocation and the
act of the accused would be a deliberate one. Thus where the accused after receiving the
provocation in a school committee meeting went to his house, brought a gun and thereafter shot
chasing fleeing men, his action his action did not fall within this exception but was an act of
murder.33 In this case the accused on being slapped by the deceased ran to his house which was
at considerable distance and brought several deadly weapons and inflicted various injuries on the
deceased two of which proved fatal, his action was indicative of his intention to kill the victim,
he was held to be rightly punish for murder.34
In the similar case where the evidence shows that after the quarrel the accused went back to his
house and brought a knife and stabbed the deceased without any provocation of any sort, offence
under section 300 of IPC was made out.35
As in the fact stated when the accused returned to his house and tried to surprise his family when
he entered his bedroom he was shocked to see her wife sleeping on the bed in the company of
another man. He walked out without making any noise and walked to the naval Office of Mapula
which was ten minutes walking distance. He took Semi- Automatic Revolver and Four bullets
from the naval Office on some pretext. He walked back to home and shot three bullets from point
blank range and the victim succumbed to his injuries.
32
Akhila Parida v. State of Orissa, 1987 Cr IJ 609
33
Gyanendra kumar,1972 LJ 308:AIR 1972 SC 502
34
Bati Kunjami v. State, 1996 Cr. LJ 1431 (Ori.)
35
State of Karnataka v. Surendra, 1995 Cr LJ 3824(Kant.)
24
The accused took more than 20 minutes and brought a gun on false pretext as it clearly shows
that the accused was preparing to kill the victim as he went to his home and shot three bullets.
Hence it clearly shows that it is a case of Murder and Exception 1 will not apply.
Principles relating to “grave and sudden” provocation by the Supreme Court of India.36
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 th accused was
placed would be so provoked as to lose his self-control.
2) In India words may also, under certain circumstances cause grave and sudden
provocation to an accused so as to bring his act within the 1 Exception to S.300 of IPC.
3) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act cause 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 has cooled down by lapse of time or otherwise
giving room and scope for premeditation and calculation.
The accused brought gun after altercation, fired from close range to cause death, benefit of
provocation not allowed.37 Same incident happened in this case, after seeing her wife sleep with
the other man he walked away brought a semi-automated revolver and shot 3 bullets.
In the similar case the accused assaulted his wife with a ‘Chopper’ 18 times and that too in spite
of the fact that the person, who became the prosecution witness, was knocking at the door, there
36
K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605: 1962 Cr LJ 521(SC)
37
Karthik v. State of Orissa, 1995 2 Cr LJ 2019.S
25
was no possibility of grave and sudden provocation and conviction of the accused for murder
was held to be proper38. The another similar case, the deceased teased and molested the sister of
the accused who, due to this grave and sudden provocation, went to the house of the deceased
with gun and fired 2 shots at him, he reloaded the gun and fired the 3rd shot at him, it was held
that all the 3 shots could not be set to have been fired in heat of provocation and his offence was
not covered by Exception 1 S.300 of IPC.39
The situation in this case was that the accused went to the deceased with a revolver wrapped in a
black bag and said the deceased a “filthy swine” which raged the deceased and retorted “Am I to
marry every woman I sleep with?” the accused shot Three bullets from point blank range and the
victim succumbed to his injuries.
The constable fired 5 bullets resulting in death, it is native to suggest that he had no intention and
any knowledge that injury sufficient to kill in ordinary course of nature. His act fell in clause 2,3
& 4 of section 300 IPC.40
Exception 4 of Section 300 of KPC:-
Exception 4.-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's 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.
In the present case, it is very clear from the fact stated that the conduct of the accused is a
premeditated one. The accused saw his wife sleeping with her paramour but walked away
38
Samul v State of Karnataka, 1996 Cr. LJ 1165.S
39
Amarjeet Singh v. State of Rajasthan,1996 Cr. LJ 185
40
Sehaj Ram, 1983 Cr. LJ 993 : AIR 1983 SC 614 : (1983) 3 SCC 280 : 1983 SCC (Cr.) 621
26
quietly. He went to the naval office and got semi-automatic revolver and four bullets. He came
back, opened the door and fired 3 shots from point blank range. He had enough time to cool
down. According to the defence state, he did not provoke at the time of seeing her wife sleeping
with her paramour but got provoked at the statement of the deceased! The accused made a plan
to kill him at that point itself. If he had to talk to him then what was the need of going back and
bringing a revolver. This all points that it was a premeditated murder.
In the similar case where the evidence shows that after the quarrel the accused went back to his
house and brought a knife and stabbed the deceased without any provocation of any sort, offence
under section 300 of IPC was made out.41
Another case in which the accused brought gun after altercation, fired from close range to cause
death, benefit of provocation not allowed.42 Same incident happened in this case, after seeing her
wife sleep with the other man he walked away brought a semi-automated revolver and shot 3
bullets.
So, from no angle of the case the conduct of the accused is a intended and premeditated one and
does not fall under the Exception of 1 and 4 of S.300 of KPC.
41
State of Karnataka v. Surendra, 1995 Cr LJ 3824(Kant.)
42
Karthik v. State of Orissa, 1995 2 Cr LJ 2019.S
27
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble Court
be pleased to:
1. Convict Mr. Zimbu for the offence of committing murder under Section 302 of the Indian Penal Code,
1860.
2. Declare a sentence of rigorous imprisonment for a term which may extend to ten years, and also be
liable to fine under Section 302 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: Mapula S/d_____________
Date: March 2, 2015. PUBLIC PROSECUTOR
28

Tryst Moot Court Competition 2015: For Offences Charged Under: Section 302 of The Indian Penal Code, 1860

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Tryst Moot Court Competition 2015: For Offences Charged Under: Section 302 of The Indian Penal Code, 1860

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TRYST MOOT COURT COMPETITION 2015

BEFORE THE COURT OF SESSIONS

For Offences Charged Under:

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

Memorandum on behalf of the Prosecution

1. Whether the accused is guilty of Murder under section 302 of KPC?...................12-22

AIR All India Reporter

All Allahabad High Court

Cal. Calcutta High Court

Cri LJ/ Cr LJ Criminal Law Journal

Cr,P.C Code of Criminal Procedure

Guj. Gujarat High Court

IPC Indian Penal Code

Mad. Madras High Court

Ori. Orissa High Court

Pg. Page No.

Raj. Rajasthan High Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

1. CODE OF CRIMINAL PROCEDURE, 1973 (ACT2 OF 1974)

2. THE INDIAN PENAL CODE, 1860 (ACT4 OF 1860)

Butteworth’s Wadhwa, Nagpur.

1. Ajit Singh v. State of Punjab, (2011) 9 SCC 462……………………………………………..13

2. Akhila Parida v. State of Orissa, 1987 Cr IJ 609……………………………………………24.

3. Amarjeet Singh v. State of Rajasthan, 1996 Cr. LJ 185…………………………………….26

4. Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472………………………….16

5. Bati Kunjami v. State, 1996 Cr. LJ 1431 (Ori.)……………………………………………..24

6. Budhi Lal v. State of Uttarakhand.AIR 2009 SC 87 (2008) 14 SCC 647…………………16.

7. Gyanendra kumar, 1972 LJ 308: AIR 1972 SC 502……………………….……….............24

8. In re Thangavelu, 1972 Cr.LJ 390 (Mad)…………………………………………………….20

9. James v. State of Kerala (1995) 1Cr LJ 55 (Ker)…………………………………………….17

10. Karthik v. State of Orissa, 1995 2 Cr LJ 2019……………………………………….…25,27

11. KM Nanavati v. State of Maharashtra AIR 1962 SC 605………………………….22,23,25

12. Labhu Ram v. State of Punjab, 1996 Cr LJ 399……………………………………………..18

14. Maharashtra v. Bharat Chaganlal Raghani, AIR 2002 SC 409 at 432………………….20

16. R. v. Nedrick (1986) 1WLR 1025: 1986 CLY 651………………………………………….13

17. R. v. Woollin, (1999) 1 AC 82: 1998 CLY 1052……………………………………………13

18. Ram Swarup v. State of Rajasthan, 1994 Cr. LJ 3382 (Raj……………………………….18

19. Ramkripal v. State of M.P, 1995 Cr. LJ 1275 (MP)………………………………………..18

20. Reg v. Govinda (1876) ILR 1 Bom 342………………………………………………………19

21. Samul v State of Karnataka, 1996 Cr. LJ 1165…………………………………………….26

23. Shivaji Dutt Patil v. State of Maharashtra, 1994 Cr. LJ 1189(Bom)………………………21

24. State of Karnataka v. Surendra, 1995 Cr LJ 3824(Kant.)………………………………24,27

25. State of Kerala v. Mullan, 1993 Cr. LJ 1512 (Ker)………………………………………….21

26. Sukh Ram v. State of Rajasthan (1995) 1Cr. LJ 257 (Raj)………………………………….17

27. Thamilarasan v. State of T.N, 1996 Cr. LJ 274 (Mad.)…………………………………….18

28. Virsa Singh v. State of Punjab (1981) 3 SCC 616………………………………………….21

209 of the Code of Criminal Procedure, 1973. Section 177:

‘177. Ordinary place of inquiry and trial

jurisdiction it was committed.’ Read with Section 209:

‘209. Commitment of case to Court of Session when offence is triable exclusively by it

by the Court of Session, he shall

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

during, and until the conclusion of, the trial;

are to be produced in evidence;

family before returning to the Strategic Naval Base in Bapula.

which hit the person resulting in his death.

1. Whether the accused is guilty of Murder under section 302 of KPC?

2. Whether the accused is benefited under:-

a. Exception 1 of Section 300 of KPC.

b. Exception 4 of Section 300 of KPC.

1. Whether the accused is guilty of Murder under section 302 of KPC?