B Memorial On Behalf Of PETITIONER

Before

THE HON’BLE SESSIONS COURT OF BOMBAY

APPLICATION NO._______

State of Maharashtra …………………………………………………….Petitioner

V.
K.M. Nanavati…………………………………………. ………………..Defendant

MEMORIAIAL ON BEHALF OF THE PETITIONER

Memorial on behalf of Petitioner

 INDEX

1. List of References………………………………………………………………………………3

2. List of Cases……………………………………………………………………………………4

3. Statement of Jurisdiction……………………………………………………………………….5

4. Statement of facts………………………………………………………………………………6

5. Issues Raised……………………………………………………………………………………7

6. Arguments advanced………………………………………………………………………..8-13

7. Prayer …………………………………………………………………………………………14

Memorial on behalf of Petitioner

 LIST OF REFERENCES

o The Indian penal code 1860

o The Indian Evidence Act 1872

Memorial on behalf of Petitioner

 List of Cases

 Virsa Singh v. State of Punjab

 Sehaj Ram v. State of Haryana
 Mahmood vs State


Memorial on behalf of Petitioner

 STATEMENT OF JURISDICTION
This hon’ble court has the jurisdiction to try the present case according to the first schedule
provided in the Criminal Procedure Code 1973.

Memorial on behalf of Petitioner

 STATEMENTS OF FACTS

I) The accused, at the time of the alleged murder, was second in command of the
Indian Naval Ship “Mysore”. He married Sylvia in 1949 in the registry office at
Portsmouth, England.

II) They have three children by the marriage, a boy aged 9 and 1/2 years, a girl aged 5
and 1/2 years and another boy aged 3 years. Since the time of marriage, the couple
was living at different places having regard to the exigencies of service of Nanavati.

III) Finally, they shifted to Bombay. In the same city, the deceased Ahuja was doing
business in automobiles and was residing, along with his sister, in a building called
“Shreyas” till 1957 and thereafter in another building called “Jivan Jyot” in Setalvad
Road. In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas,
introduced Ahuja and his sister to Nanavatis.

IV) Ahuja was unmarried and was about 34 years of age at the time of his death,
Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship,
leaving his wife and children in Bombay. Gradually, friendship developed between
Ahuja and Sylvia, which culminated in illicit intimacy between them.

V) On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja.
Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of
the ship a semi- automatic revolver and six cartridges on a false pretext, loaded the
same, went to the flat of Ahuja entered his bed-room and shot him dead.
Thereafter, the accused surrendered himself to the police. He was put under arrest
and in due course he was committed to the Sessions for facing a charge under 302 of
the Indian Penal Code.

Memorial on behalf of Petitioner

 ISSUES RAISED

 Whether the accused is guilty of murder or not?

 Whether the statement of his wife amounts to grave and sudden provocation?
 Whether the act of accused comes under the exception mentioned in Indian Penal Code or
not?

Memorial on behalf of Petitioner

 ARGUMENTS ADVANCED

1) Whether the accused is guilty of murder or not?

With regard to this issue the petitioner humbly avert before this Hon’ble court that the
accused is guilty of murder and should be punished under Section 302 of IPC.
Section 300 of IPC

Murder.—Except in the cases 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 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.

Section 302 of IPC

Punishment for murder.—Whoever commits murder shall be punished with death, or

imprisonment for life, and shall also be liable to fine.

In this case, On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with
Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of
the ship a semi- automatic revolver and six cartridges on a false pretext, loaded the same,
went to the flat of Ahuja entered his bed-room and shot him dead. It is simply a case of
murder.

In Virsa Singh v. State of Punjab1, it was held that, in the absence of any circumstances to
show that the injury was caused accidentally or unintentionally, the presumption would be
that the accused had intended to cause the inflicted injury and the conviction was upheld. The
Supreme Court, further laid down in order to bring a case within clause (3) of Section 300,
the prosecution must prove the following:

i) First, it must establish, quite objectively, that a bodily injury is present;

1
AIR 1958 SC 465

Memorial on behalf of Petitioner

 ii) Secondly, the nature of the injury must be proved; it is purely objective investigation;

iii) 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

iv) 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.

In Sehaj Ram v. State of Haryana2, the accused, who is a constable fired several shots with a
303 rifle at another constable. One shot hit the victim beneath the knee of his right leg and he
fell down. Even after that, the accused fired another shot at him, though the shot did not hit
him.

2
AIR 1983 SC 614

Memorial on behalf of Petitioner

2) Whether the statement of his wife amounts to grave and sudden
provocation?
With respect to this issue the petitioner avert before this Hon’ble court that there was no
grave and sudden provocation by his wife. At noon on April 27, 1959, when they were sitting
in the sitting-room for the lunch to be served, the accused put his arm round his wife
affectionately, when she seemed to go tense and unresponsive. After lunch, when he
questioned her about her fidelity, she shook her head to indicate that she was unfaithful to
him. He guessed that her paramour was Ahuja. Thereafter, he drove his wife, two of his
children and a neighbour’s child in his car to a cinema, dropped them there and promised to
come and pick them up at 6 P.M. when the show ended. He then drove his car to his ship, as
he wanted to get medicine for his sick dog, he represented to the authorities in the ship, that
he wanted to draw a revolver and six rounds from the stores of the ship as he was going to
drive alone to Ahmednagar by night, though the real purpose was to shoot himself. On
receiving the revolver and six cartridges, and put it inside a brown envelope. Then he drove
his car to Ahuja’s office, and not finding him there, he drove to Ahuja’s flat, rang the door
bell, and, when it was opened by a servant, walked to Ahuja’s bed-room, went into the bed-
room and shut the door behind him. He also carried with him the envelope containing the
revolver, entered his bed-room and shot him dead.
This clearly state that there was proper planning by accuse. This is not a case of grave and
sudden provocation by his wife.

Grave and sudden provocation

The death happening due to acts done under the influence of grave and sudden provocation is
an exception to the section 300 of the IPC. When the accused is suddenly provoked by any
person and that provocation makes the accused to lose his control which ultimately leads to
death of the person who provoked or any other person by mistake or accident then the
accused will not be liable for murder but only for culpable homicide.

There should be no time gap between the provocation and the retaliatory action caused due to
that provocation. The accused cannot take the plea of sudden or grave provocation if the
death has been caused due to well managed plan and the main aim behind provocation was to
commit murder.

For an exception on the ground of “grave and sudden provocation” the following facts must
be proved —

(1) That the accused received provocation;

Memorial on behalf of Petitioner

 (2) That the provocation was (a) grave, and (b) sudden;

(3) That he was deprived by the provocation of his power of self-control;

(4) That while thus deprived of his power of self-control and before he could cool down he
caused the death of the person who gave him the provocation.

Mahmood vs State3

(i). The provocation was sudden; (ii) the provocation was grave; and (iii) loss of self control.
These three ingredients may be considered one by one.

(i) Whether the provocation was sudden or not does not present much difficulty. The word
'sudden' involves two elements. Firstly, the provocation must be unexpected. If an accused
plans in advance to receive a provocation in order to justify the subsequent homicide, the
provocation cannot be said to be sudden. Secondly, the interval between the provocation and
the homicide should be brief. If the man giving the provocation is killed with to a minute
after fee provocation, it is a case of sudden provocation, If the man is killed six bouts after
the provocation, it is not a case of sudden provocation,

(ii) The main difficulty lies in deciding Whether a. certain provocation was grave or not. A
bare statement by the accused that he regarded the provocation as grave will not be accepted
by the Court. The Court has to apply an objective test for deciding whether the provocation
was grave or not. A good test for deciding whether a certain provocation was grave or not is
this; "Is a reasonable man likely to lose self-control as a result of such provocation?' If the
answer is in the affirmative, the provocation will be classed as ' grave. If the answer is in the
negative, the provocation is not grave. In this context, the expression 'reasonable man' means
a normal or an average person. A reasonable man is not the ideal man or the perfect being. A
normal man sometimes loses temper. There is, therefore, no inconsistency in saying that, a
reasonable man may lose self-control as a result of grave provocation. A reasonable or
normal or average man is a legal fiction. The reasonable man will vary from society to
society. A Judge should not impose Ms personal standards in this matter. By training, a Judge
is a patient man. But the reasonable man or the normal man need not have the same standard
of behaviour as the Judge himself. The reasonable man under consideration is a member of
the society, in which the accused was living. So, education and social conditions of the
accused are relevant factors- An ordinary exchange of abuses is a matter of common
occurrence. A reasonable man does not lose self-control merely on account of an ordinary
exchange of abuses. So Courts do not treat an ordinary exchange of abuses as a basis for
grave provocation. On the other hand, in most societies adultery is looked upon as a very
serious matter. So Courts are prepared to treat adultery as a basis for grave provocation.

3
AIR 1960

Memorial on behalf of Petitioner

(iii) I have pointed out that the question of loss of self-control comes up indirectly in
deciding whether a particular provocation was grave or not. So, if it is proved that the
accused did receive grave and sudden provocation, the Court is generally prepared to assume
that homicide was committed while the accused was deprived of the power of self-control- In
some cases it may be possible for the prosecution to prove that the accused committed the
murder with a cool head in spite of grave provocation.

Memorial on behalf of Petitioner

3) Whether the act of accused comes under the exception mentioned in
Indian Penal Code or not?
With regard to this issue the petitioner humbly avert before this Hon’ble court that the act of
accused don’t comes under any exception mentioned in the Indian Penal Code. This is a clear
case of murder as mentioned in Section 300 of Indian Penal Code. Neither it lie under
Section 80 of Indian Penal Code nor under exceptions mentioned in Section 300.

Section 80
Accident in doing a lawful act.—Nothing is an offence which is done by accident or
misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a
lawful manner by lawful means and with proper care and caution. Illustration A is at work
with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no
want of proper caution on the part of A, his act is excusable and not an offence.

This murder cannot be said as accident as there was proper planning from accuse.

Section 300 Exception

That the provocation is not sought or voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
That the provocation is not given by anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such public servant.
That the provocation is not given by anything done in the lawful exercise of the right of
private defence.

It do not lies under any exception mention under Section 300 as there was no grave and
sudden provocation.

Memorial on behalf of Petitioner

 PRAYER

THEREFORE, in the lights of the facts used, issued raised, argument advanced & authorities
cited, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to
adjudged and declared that:
1. The accused is guilty of murder
2. The court may also be please to pass any other order, which this Hon’ble court may deem
fit in the light of justice, equity & good conscience.

Counsel for Petitioner

Memorial on behalf of Petitioner