Army Institute of Law Class Moot – I

Code: 1433

BEFORE THE LD. SESSIONS JUDGE

ORIGINAL CRIMINAL JURISDICTION

Case No. S.C _____ of 2017

Under S. 177 r/w S. 209 of the Code of Criminal Procedure, 1973

IN THE MATTER OF

State (U.T of Chandigarh)………………………………………………………….Prosecution

V.

Abhinav…………………………………………………………………...….………Defence

For Offences charged under Section 302 & 307 of the Indian Penal Code, 1860

UPON SUBMISSION TO THE HON’BLE SESSIONS JUDGE

Memorandum on behalf of the Prosecution

Table of Contents

TABLE OF CONTENTS

Table of Contents……………………………………………………………………………..II

List of Abbreviations…………………………………………………………………………III

Index of Authorities…………………………………………………………………………...V

Table of Cases……………………………………………………………………........V

Books…………………………………………………………………………………VI

Lexicons……………………………………………………………………………..VII

Websites……………………………………………………………………………..VII

Statutes………………………………………………………………………………VII

Statement of Jurisdiction……………………………………………………………………VIII

Statement of Facts……………………………………………………………………………IX

Statement of Charges…………………………………………………………………………XI

Summary of Arguments……………………………………………………………………..XII

Arguments Advanced………………………………………………………………………1-14

1. WHETHER ABHINAV IS GUILTY OF MURDER UNDER SECTION 302 OF THE INDIAN

PENAL CODE, 1860? ......................................................................................................1

1.1 ACTUS REUS OF MURDER IS PROVEN……………………………………………….1
1.2 MENS REA OF MURDER IS ESTABLISHED……………………………………………4
1.3 CASE IS ESTABLISHED BEYOND REASONABLE DOUBT………………………………8

2. WHETHER ABHINAV IS GUILTY OF ATTEMPT TO MURDER UNDER SECTION 307 OF

THE INDIAN PENAL CODE, 1860? …………………………………………………….9
2.1 THE ACCUSED HAD AN INTENTION OF MURDERING GURINDER……………………..9
2.2 THE OFFENCE UNDER SECTION 307 WAS COMMITTED……………………………..13

Prayer……………………………………………………………………………………….XIII

II

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

List of Abbreviations

LIST OF ABBREVIATIONS

AIR All India Reporter

& And
A.P Andhra Pradesh
ALJ Allahabad Law Journal
All Allahabad
Anr. Another
Bom. Bombay
Cal. Calcutta
cl. Clause
CLT Company Law Tribunal
Cri & Crl. Criminal
CrPC Code of Criminal Procedure
Del. Delhi
Ed. Edition
H.P Himachal Pradesh
Hon’ble Honorable
Hons. Honors
i.e That is
ILR Indian Law Reporter
IPC Indian Penal Code
Ker. Kerala
L.R Law Reporter
Ld. Learned
LJ Law Journal
Ltd. Limited
NCT National Capital Territory
No. Number
Ors. Others
P&H Punjab & Haryana

III

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

List of Abbreviations

p. Page
Pvt. Private
r/w Read With
Raj. Rajasthan
Rep. Reporter
S.C Supreme Court
s/d Signed
SCC Supreme Court Cases
Sec./S. Section
U.P Uttar Pradesh
u/s Under Section
U.T Union Territory
v. Versus
W.B West Bengal
Wash. Washington

IV

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Index of Authorities

INDEX OF AUTHORITIES

TABLE OF CASES:

1. Abhiram Mukhi v. State of Orissa, 82 (1996) CLT 576

2. B.N Srikanatiah v. State of Mysore, AIR 1958 SC 672
3. Badri v. State of U.P., AIR 19953 All 189
4. Bappa alias Bapu v. The State of Maharashtra and Anr., AIR 2004 SC 4119
5. Brij Bhushan Sharma v. State of U.P., 2001 CriLJ 1384
6. Budhi Singh v. State of H.P, (2012) 13 SCC 663
7. Chacko v. State of Kerala, (2004) 12 SCC 269
8. Chhotanney & Ors. v. State of Uttar Pradesh & Ors. AIR 2009 SC 2013
9. Chhotka v. State of W.B, AIR 1958 Cal 482
10. Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4
11. Dibia v. State of U.P., AIR 1953 All 373
12. Emperor v. Mt. Dhirajia, AIR 1940 All 486
13. Emperor v. Vasudeo Balwant Gogte, I.L.R (1932) 56 Bom. 434
14. Gandaram Taria v. State, 1982 CrLJ 1229 (Orissa)
15. Gangadhar v. State of Maharashtrsa, 1981 CrLJ. 1725 (Bom.)
16. Girija Shankar v. State of U.P.., (2004) 3 SCC 793
17. Gudar Dusadh v. State of Bihar, (1972) 3 SCC 118
18. Hari Kishan v. Sukhbir Singh and Ors, AIR 1988 SC 2127
19. Hari Mohan Mandal v. State of Jharkhand, (2004) 12 SCC 220
20. Hingu v. State of U.P, 1998 CrLJ 4154 (All.)
21. Jodha v. State of Rajasthan, (1982) Raj Crl. 94
22. Kulamani Sahuand Anr. v. State of Orissa, 1994 CriLJ 2245
23. Kuldip Singh v. State, (1988) 3 Crimes 628(1) Del (SN)
24. Kumar Majhi v. State, 1981 CrLJ 1787 (Orissa)
25. Laxman v. State of Maharashtra, AIR 1974 SC 1803
26. Mahmood v. State, AIR 1961 All 538
27. Md. Idrish v. State, 2004 Cr LJ 1724 (Raj.)
28. Md. Sharif and Anr. v. Rex, AIR 1950 All 380
29. Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175
V

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Index of Authorities

30. Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43

31. Om Parkash v. The State of Punjab, AIR 1961 SC 1782
32. P.D. Shamdasani, In re, AIR 1929 Bom 443
33. Parsuram Pandey and Ors. v. The State of Bihar, AIR 2004 SC 5068
34. Prakash Chandra Yadav v. State of Bihar & Ors., (2007)13 SCC 134
35. Pran Dutt v. State of Uttar Pradesh, 1982 ALJ 519
36. R. Prakash v.State of Karnataka, (2004) 9 SCC 27
37. Rajesh Kumar v. State, 2016 SCC Online Del 2648
38. Ravindra Shantaram Sawant v. State of Maharashtra, AIR 2000 SC 2461
39. Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
40. Son Lal v. State of Uttar Pradesh, AIR 1978 SC 1142
41. Sreedharan v. State of Kerala, AIR 1970 Ker. 98
42. State of M.P. v. Kashiram & Ors., AIR 2009 SC 1642
43. State of Madhya Pradesh v. Saleem @ Chamaru and Anr, AIR 2005 SC 3996
44. State of Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609
45. State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722
46. State of Punjab v. Sucha Singh, AIR 2003 SC 1471
47. State of Rajasthan v. Dhool Singh, (2004) 12 SCC 546
48. State V. Bruton, 66 Wash. 2d 111
49. State v. Dinakar Bandu, (1969) 72 Bom LR 905
50. Suchand Bouri v. State of W.B, (2009) 17 SCC 63
51. Sukhvinder Singh v. State (Govt. Of NCT of Delhi), Crl. A. No.1358/2012
52. Sushil Tanaji Thite v. The State of Maharashtra, 2015 SCC OnLine Bom 855
53. Tatigari Durgaiah S/o. Lakshmaiah v. The State of A.P. the rep.by Public Prosecutor,
High Court of A.P., 2007 CriLJ 524
54. Vasant Vithu Jadhav v. State of Maharashtra, (2004) 9 SCC 31
55. Virsa Singh v. State of Punjab, AIR 1958 SC 465

BOOKS:

1. Cleary, E, McCormick's Handbook of the Law of Evidence, (2nd Ed. 1972)

2. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
3. Gaur, KD, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd., 2016)

VI

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Index of Authorities

4. Hutchins & Slesinger, Some Observations on the Law of Evidence-Consciousness of

Guilt, (77 U. Pa. L. Rav. 725,1929)
5. Lal, Batuk, Law of Evidence, (21st Ed., Central Law Agency, 2016 )
6. Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010)
7. Ormerod, David, Smith and Hogan Criminal Law, (12th Ed., Oxford, 2008)
8. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology, (6th
Ed. 2002)
9. Ratanlal and Dhirajlal, The Indian Penal Code, (32nd Ed., Lexis Nexis Butterworths,
2011)
10. Wigmore, J., A Treatise on the Anglo American System of Evidence in Trials at Common
Law, (3rd Ed. 1940)

LEXICONS

1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

2. Garner, Black’s Law Dictionary, (9th Ed. Thomas & West, U.S.A 1990)

WEBSITES

1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com

STATUTES

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

2. The Indian Evidence Act, 1872 (Act XVIII of 1872)
3. The Indian Penal Code, 1860 (Act XLV of 1860)

VII

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Statement of Jurisdiction

STATEMENT OF JURISDICTION

The Counsel on behalf of the Prosecution has approached the Hon’ble District and Sessions
Court, Chandigarh under S. 177 r/w S. 209 of the Criminal Procedural Code (CrPC), 1973
which reads as hereunder:

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.’

***
VIII

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Statement of Facts

STATEMENT OF FACTS

It is Respectfully Showeth,

1. That Abhinav, studying in BA. L.L.B. (Hons.) 10th Semester at UILS, Panjab
University, Chandigarh, was a resident of Boys Hostel No. 6 at Panjab University,
Chandigarh along with inmates Ravinder & Gurinder.
2. That on 25th April 2017, Dinesh Kumar, the Hostel Warden, about 2:00pm, was
informed by Abhinav of the fact that Ravinder and Gurinder, frequently abuse and
insult him by passing derogatory remarks like bastard, rascal, illegitimate child, etc.
3. That following the same, an inquiry was made by the Warden in which both Ravinder
& Gurinder replied that the allegations levelled against them were absolutely false.
4. That all three of them were told to solve the matter amicably and arrive at a compromise
by the Warden, whereas Ravinder & Gurinder were warned that abusive language of
any kind shall not be tolerated in the hostel premises.
5. That on 28th April 2017, at about 10:30pm there was a heated argument between
Abhinav on one side and Ravinder and Gurinder on the other, when Abhinav asked
both of them not to play loud music in their room as it was distracting him from study
and he had to study for his end semester examinations which were commencing from
01st May 2017.
6. That in the midst of the Argument, Ravinder & Gurinder hurled abuses at Abhinav,
using foul language for his mother and sister. This enraged Abhinav and he threatened
to take the matter to the warden.
7. That at this moment, Ravinder pushed Abhinav to the ground stating that he was not
afraid of the warden. Enraged Abhinav, went to the Hostel Canteen, brought a huge
knife and stabbed Ravinder on the right side of his chest.
8. That when Gurinder tried to intervene, Abhinav inflicted a cut on his left forearm.
Gurinder ran away to save his life while, Ravinder, though bleeding profusely, managed
to snatch the knife from Abhinav’s hand and tried to stab him in the stomach.
9. That Abhinav stopped him from doing so and snatched the knife from him, stabbed him
in the right shoulder.
10. That the situation caused considerable commotion and when Abhinav tried to escape,
he was apprehended by the security guard of the hostel at the exit gate.

IX

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Statement of Facts

11. That Ravinder and Gurinder were taken to a Hospital, where Ravinder succumbed to
his injuries next day. Gurinder survived and received 12 stitches on his forearm.
12. That as per the post mortem report of Ravinder, the injury was sufficient in the ordinary
course of nature to cause death.
13. That Abhinav is put on trial for the murder of Ravinder and for attempted murder of
Gurinder.

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Statement of Charges

STATEMENT OF CHARGES

CHARGE 1

Abhinav has been charged under Section 302 of the Indian Penal Code, 1860 for the crime of
Murder of Ravinder.

CHARGE 2

Abhinav has been charged under Section 307 of the Indian Penal Code, 1860 for the crime of
Attempted Murder of Gurinder.

XI

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Summary of Arguments

SUMMARY OF ARGUMENTS

Issue 1

WHETHER THE ACCUSED IS GUILTY OF MURDER?

It is humbly submitted before this Hon’ble Court that the accused, Abhinav is guilty of murder
as he had committed an act of cold blooded murder of Ravinder inside the premises of the
Panjab University, Boys Hostel No. 6, Chandigarh with Gurinder as a witness to the actus reus.
The accused had the requisite mens rea to commit said crime, and he even had a motive to
carry out the said act. The victim was stabbed in the right side of his chest and when he tried
to act in self-defence to save his life, he was further stabbed in the right shoulder. All this
clearly points out that it was an execution and not an accident in a fit of anger or rage. The
accused had indeed resorted to a huge knife to settle a heated argument. Thereafter, he even
attempted to flee from the crime scene, but was apprehended at the gate, by the security guard.
It is evident that he was aware of the crime he had committed & hence it is proven beyond
reasonable doubt that the crime of Murder was indeed committed by the accused in the case at
hand.

ISSUE 2

WHETHER THE ACCUSED IS GUILTY OF ATTEMPTED MURDER?

It is humbly submitted before the Hon’ble Court that the accused, Abhinav is guilty of
attempted murder of Gurinder inside the premises of the Boys Hostel, No. 6, Panjab University,
Chandigarh, as he had the requisite intention to carry out the murderous act. It is most humbly
submitted that there was an overt action by the accused towards commission of murder when
he went to the hostel canteen, brought a huge knife, which is indicative of the criminal intent,
with which the accused proceeded ahead with his act. The very fact that the accused used a
Huge Knife, itself is clear of the fact that he had a hostile intent to fatally harm the victims in
this case. Had it not been for the luck of Gurinder, he would have met the same fate as that of
Ravinder. Hence, it is proved that the accused committed the crime of Attempt to Murder.

XII

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

ARGUMENTS ADVANCED

1. WHETHER ABHINAV IS GUILTY OF MURDER UNDER SECTION 302 OF THE INDIAN PENAL
CODE, 1860?

It is humbly contended that the accused is guilty of committing the offence of murder under
Sec 302, IPC. Sec 302 prescribes the punishment for committing murder. In order to bring a
successful conviction under this charge, however, it is pertinent to refer to Sec 300, IPC which
elucidates the essentials of murder.

A person is guilty of murder if he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in 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.1

In general the onus of proving the guilt of the accused always rests upon the prosecution 2,
therefore, the Prosecution humbly contends that both, the actus reus [1.1] and the mens rea
[1.2] of the crime are established in the instant matter, and the case is proved beyond reasonable
doubt [1.3].

1.1 ACTUS REUS OF MURDER IS PROVEN

Actus reus is any wrongful act3. The physical element of the crime that is the event, behaviour
or state of affairs connected to the crime is called the actus reus of the crime.4 The actus reus
of murder comprises the elements of conduct, circumstances in which the conduct takes place
and result i.e. the consequences of the conduct.5 In this present case, the actus reus is
established by way of the conduct of the accused [A], post mortem report [B], nature of weapon
used [C].

1
Sec 300, Indian Penal Code, 1860.
2
Gaur, K.D, A Textbook on The Indian Penal Code, p. 406 (3rd ed. 2004)
3
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed. 2006).
4
David Ormerod, Smith and Hogan Criminal Law, Twelfth Edition, Oxford (2008), p.42
5
Id. p.47
1

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

A. Conduct of the Accused6

A fact can be proved by conduct of a party & by surrounding circumstances. Statements

accompanying or explaining conduct are also relevant as part of the conduct itself. The whole
incident had created a “considerable commotion”7, which points towards the fact there would
have been people around, who would have witnessed the crime being committed by the accused
inside the premises of the Boys Hostel No. 6. Further, it is pertinent to note that the accused
had fled the crime scene but was subsequently apprehended by the security guard at the Hostel
Gate.8 The circumstances as well as the chain of events, as provided in the Statement of Facts,
clearly corroborate the fact that the conduct of the accused was akin to a criminal having a
sufficient actus reus to commit the crime.

B. Post Mortem Report

Moreover, it is not possible for the Prosecution to explain each and every injury suffered by
the witnesses.9 However, for the sake of convenience, the Prosecution feels obliged to assist
this Hon’ble Court in understanding the intricacies of the post mortem report.

Since intention is always a state of mind, it can be proved only by its external manifestations.
When injuries are inflicted on vital parts of the body with sharp edged instruments then the
intention to kill can be attributed to the offender. In the case of B.N Srikanatiah v. State of
Mysore10, there were as many as 24 injuries on the deceased and of them 21 were incised. They
were on his head, the neck, the shoulders, and the forearms. Since most of the injuries were on
vital parts, it was held that the intention of causing bodily injuries was established; bringing it
under the cover of S. 300.

The S.C in State of Rajasthan v. Dhool Singh11 (para 13) stated that “it is the nature of injury,
the part of body where it is caused, the weapon used in causing such injury which are the
indicators of the fact whether the respondent caused the death of the deceased with an intention

6
Section 8, Indian Evidence Act, 1872.
7
Line 21, Moot Proposition.
8
Line 22, Moot Proposition.
9
Ravindra Shantaram Sawant v. State of Maharashtra, AIR 2000 SC 2461.
10
AIR 1958 SC 672.
11
(2004) 12 SCC 546.
2

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

of causing death or not.” In the present case at hand the accused had stabbed Ravinder first
time on right side of his chest, which is a vital organ12, and second time, on his right shoulder.

Further, any reasonable person with any stretch of imagination can come to the conclusion that
such injury on such a vital part of the body with a sharp edged weapon (in this case, a huge
knife) would cause death. Such an injury not only exhibits the intention of the attacker in
causing the death of the victim but also the knowledge of the attacker as to the likely
consequence of such attack which could be none other than causing the death of the victim.13

As per the post mortem report of Ravinder, the injury was sufficient in the ordinary course of
nature to cause death. The essence of the clause is the sufficiency of the injury in the ordinary
course of nature to cause death. In Gudar Dusadh v. State of Bihar14, it was stated that when
the word “sufficiency” is used, it means where there is a very high probability of the injury
resulting in death. In Virsa Singh v. State of Punjab15, the Supreme Court laid down that in
order to bring a case within clause (3) of S. 300, the prosecution must prove the following:

 It must establish, quite establish, that a bodily injury is present,

 The nature of the injury must be proved.
 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 some other kind of injury was
intended.

Once these three elements are proved to be present, the enquiry proceeds further, and 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. In the instant case, actions of
Abhinav to harm Ravinder, twice, was intentional.

The Apex Court also stressed that once the intention to cause the bodily injury actually found
to be present is proved, the rest of the enquiry is purely objective what is required to prove is
the intention to cause particular injury and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary course of nature to cause death.16

12
Suchand Bouri v. State of W.B, (2009) 17 SCC 63. (para 14)
13
Ibid at 15.
14
(1972) 3 SCC 118.
15
AIR 1958 SC 465.
16
Chacko v. State of Kerala, (2004) 12 SCC 269.
3

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

Further Section 300 I.P.C requires the proof that the accused incurred the risk of causing death
or bodily injury without any excuse.17 It is very evident from the facts that there was no
imminent danger to the life to Abhinav, and he was merely pushed to the ground, and enraged
Abhinav resorted to deadly means which, as the post mortem report stated, was ordinary in the
course of nature to cause death.18

C. Knife as a Murder Weapon

As stated in the proposition, a huge knife was used as a murder weapon, which had caused
significant amount of injuries to both Ravinder & Gurinder. Since the law gives a lot of
importance on proving the intent of the accused, there have been some tests to determine the
murderous intent of the accused. The test was laid down in the case of Pran Dutt v. State of
U.P19 where the court said to check the nature of the injury, preparation taken & the weapon
resorted, determines the intent of the accused. The evidence of the doctor is also given
importance.

Moreover, in the present case, evidence of the doctor’s opinion, as laid out in the Post Mortem
Report, clearly indicates the nature of the injuries sustained by the victim was ordinary in the
course of nature to cause death.

1.2 MENS REA OF MURDER IS ESTABLISHED

Mens rea is considered as guilty intention20, which is proved or inferred from the acts of the
accused21. It is submitted that the intention to kill is established [A] in light of clear-cut motive
of the accused [B]. Arguendo, absence of motive would not be a sufficient ground to dismiss
the case [C].

A. THE ACCUSED HAD INTENTION TO KILL

It is presumed that every sane person intends the result that his action normally produces and
if a person hits another on a vulnerable part of the body, and death occurs as a result, the
intention of the accused can be no other than to take the life of the victim and the offence

17
Emperor v. Dhirajia, AIR 486.
18
Line 25, Moot Proposition.
19
(1983) 1 Crimes 286.
20
Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4.
21
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
4

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

committed amounts to murder.22 Moreover, the intention to kill is not required in every case,
mere knowledge that natural and probable consequences of an act would be death will suffice
for a conviction under S. 302 of IPC.23

The intention to kill can be inferred from the murder and nature of the injuries caused to the
victim.24 Causing a serious injury on a vital part of the body of the deceased with a dangerous
weapon must necessarily lead to the inference that the accused intended to cause death or bodily
injury sufficient to cause death of the victim, and it answers to section 300 and is murder.25
Given that the accused stabbed the victim on the right side of the chest, a vital part of the body,
it is logical to conclude that he intended to cause the death of the victim.

B. THE ACCUSED HAD MOTIVE & PREPARATION TO KILL

Sec. 8, Evidence Act stipulates that any fact is relevant which shows or constitutes motive or
preparation for any fact in issue or relevant fact. Thus, previous threats or altercations between
parties are admitted to show motive.26 It is further pertinent to note that if there is motive in
doing an act, then the adequacy of that motive is not in all cases necessary. Heinous offences
have been committed for very slight motive.27

The Supreme Court has held that mens rea is an essential ingredient of a criminal offence.28 In
a criminal court, one often wants to test the alleged guilty mind of the accused, by seeing what
was the motive of the accused, in doing a particular act. It is not essential under IPC for
prosecution to establish motive. But as a matter of common sense, this is usually of importance,
because an average man does not commit a criminal offence unless he has a strong motive for
doing it.29

It is humbly contended before this Hon’ble Court that the very fact that the accused had
attacked on a vital part of the body (chest), with a huge knife30, and to confirm the kill, had

22
(1951) 3 Pepsu LR 635.
23
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC).
24
Laxman v. State of Maharashtra, AIR 1974 SC 1803
25
Md. Idrish v. State, 2004 Cr LJ 1724 (Raj); Md. Sharif and Anr. v. Rex, AIR 1950 All 380; Badri v. State of
U.P., AIR 19953 All 189; Dibia v. State of U.P., AIR 1953 All 373, State of Maharashtra v. Bhairu Sattu Berad,
AIR 1956 Bom 609.
26
Son Lal v. State of Uttar Pradesh, AIR 1978 SC 1142, Chhotka v. State of W.B, AIR 1958 Cal 482.
27
State v. Dinakar Bandu (1969) 72 Bom LR 905.
28
Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43.
29
P.D. Shamdasani, In re, AIR 1929 Bom 443.
30
Line 16, Moot Proposition.
5

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

stabbed again, on the shoulder, which too consists as a vital part of the body, clearly shows the
requisite intention in the mind of the accused to commit murder.

Furthermore, to establish motive, the Court should also take into consideration the fact that
Abhinav had tried to escape31, from the premises, clearly pointing to consciousness of guilt on
part of the accused. In criminal trials, courts traditionally have admitted evidence of the
defendant's flight32 from arresting officers. Admission is based on the theory that the
defendant's consciousness of guilt motivated his flight and that therefore flight is circumstantial
evidence of his guilt33.

There was no Sudden or Grave Provocation

The doctrine of grave and sudden provocation is incapable of rigid construction leading to or
stating any principle of universal application. This will always have to depend on the facts of
a given case. While applying this principle, the primary obligation of the court is to examine
from the point of view of a person of reasonable prudence if there was such grave and sudden
provocation, so as to reasonably conclude that it was possible to commit the offence of culpable
homicide, and as per the facts, was not a culpable homicide amounting to murder.34

In light of the circumstances which would help the court to gather the intention of the accused,
the court also has to take into consideration the surrounding circumstances. One of the very
vital factors is premeditation and intention to kill. There are the important factors which will
weigh in the mind of court while determining such an issue in light of the attendant
circumstances.35

31
Line 21, Moot Proposition.
32
The flight doctrine applies to a broad spectrum of behaviour occurring after the commission of a crime: flight
from the scene of the crime, flight from arresting officers, resistance to arrest, escape from custody, failure to
appear on trial date, concealment, and assumption of a false name. See 2 J. Wigmore, A Treatise on the Anglo
American System of Evidence in Trials at Common Law § 276, At 111 (3d Ed. 1940). See Generally State V.
Bruton, 66 Wash. 2d 111, 112, 401 P.2d 340, 341 (1965) ("The law makes no nice or refined distinctions as to the
manner or mode of flight, and the range of circumstances which may be shown as evidence of flight is broad.");
McCormick's Handbook of the Law of Evidence § 271, At 655 (2d Ed. E. Cleary 1972) [Hereinafter Cited As
McCormick].
33
See Hutchins & Slesinger, Some Observations on the Law of Evidence-Consciousness of Guilt, 77 U. PA. L.
Rav. 725 (1929): “The hypothetical explanation of this behaviour set forth by the courts and commentators is that
the flight results from consciousness of guilt, caused by the performance of a (probably the) guilty deed. Or we
might say that the murder has put the murderer in a state of readiness to flee from anyone who tries to capture
him. The appearance of the arresting party merely stimulates an organism in readiness to behave in a certain
manner, to react in that particular way.”
34
Budhi Singh v. State of H.P, (2012) 13 SCC 663.
35
Ibid.
6

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

Thus, the meaning of Provocation includes two things which the law attaches great importance
to. The first of them is, whether there was sufficient time for cooling, that is, for passing to
cool and for reason to regain dominion over the mind. Secondly in considering
whether provocation has or has not been made out, the courts must consider the retaliation
in provocation - that is to say, whether the mode of resentment bears some
proper and reasonable relationship to the sort of provocation that has been given.36

In the present case, the accused, after being abused by Gurinder & Ravinder, and threatening
them to take the matter to the warden, was pushed to the ground by Ravinder. On this account,
a further enraged Abhinav, took matters into his own hands, and brought a huge knife from the
Hostel Canteen and inflicted the injuries. It clearly points out that he had a pre-conceived
motive to harm both the victims.

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.37

There was no sudden & grave provocation, as Abhinav was only hurled upon abuses, when he
had asked Gurinder & Ravinder, to not play loud music as he had his end semester exams
approaching. When Abhinav threatened to take the matter to the warden, he was pushed to the
ground by Ravinder. As per the facts of the given case, mere pushing and hurling abuses in a
heated argument, doesn’t give rise to a sudden & grave provocation, in which a person, instead
of reporting the incident to the Hostel Warden, goes to the Canteen, brings a huge knife, and
inflicts the injuries, leading to death of one of the victims. This clearly shows that Abhinav had
a pre-established motive, to bring about deadly harm to the victims, and his previous animosity
can also be looked into. Keeping the above circumstances and the action taken by the accused
in mind, it can be in no way stated that the provocation, if any, was retaliated in a proper
manner.

Moreover, the very fact that he took a decision to go the Hostel Canteen, and to bring a huge
knife, which would have involved a significant amount of time, clearly states that he would
have given it a thought. Leaving the hostel premises to go and fetch a knife from the kitchen,
acts as a significant cooling period, during which he could have weighed his options. Therefore,

36
Rajesh Kumar v. State, 2016 SCC Online Del 2648.
37
Mahmood v. State, AIR 1961 All 538.
7

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

the applicant (accused) had chosen vital part of the body i.e. chest on which he gave blow with
a deadly weapon38, which in no way can be classified as an exception to murder.

C. ARGUENDO, ABSENCE OF MOTIVE IS IRRELEVANT

Assuming for the sake of argument that the accused had no motive, it is humbly contended that
absence of motive is no ground for dismissing the case. Motive is immaterial so far as the
offence is concerned, and need not be established39 as the mere existence of motive is by itself,
not an incriminating circumstance and cannot take the place of a proof.40 Therefore, absence
of proof of motive, does not break the link in the chain of circumstances connecting the accused
with the crime, nor militates against the prosecution case and is not fatal as a matter of law.41

1.3 THAT THE CASE IS PROVED BEYOND REASONABLE DOUBT

It is humbly submitted before this Honourable Court that present case is proved beyond
reasonable doubt. The general rule is that a party who desires to move the court must prove all
facts necessary for that purpose42 but it is subject to exception that he will not be required to
prove such facts as are necessarily within the knowledge of other party.43 In the present case
the burden of proving that accused had not committed the offence of murder & attempted
murder lies on the accused.

A reasonable doubt must not be imaginary, trivial or merely possible doubt; but a fair doubt
based upon reason & common sense arising out of the evidence of the case.44 In the above
mentioned facts it is clearly stated that the crime was committed by the accused & not by the
any other person. There is no doubt in this as to “may have committed or has committed”45,
the prosecution has established this by legal, reliable & unimpeachable evidence for conviction
to be sustained. Also in the present case there are no two views possible.

Therefore, it is humbly submitted before this Honourable Court that the charge under Section
302 of the IPC has been made out due & the accused must be convicted.

38
Sushil Tanaji Thite v. The State of Maharashtra, 2015 SCC OnLine Bom 855.
39
Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011).
40
State of Punjab v. Sucha Singh, AIR 2003 SC 1471.
41
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175.
42
Section 101 of Indian Evidence Act, 1872.
43
Section 106 Indian Evidence Act, 1872; See Also Raja Ram v. State Cri. Appeal No. 211 of 2013.
44
Chhotanney & Ors v. State of Uttar Pradesh & Ors., AIR 2009 SC 2013.
45
Brij Bhushan Sharma v. State of U.P., 2001 CriLJ 1384
8

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

2. WHETHER ABHINAV IS GUILTY OF ATTEMPT TO MURDER UNDER SECTION 307 OF THE

INDIAN PENAL CODE, 1860?

It is most humbly submitted before this Hon’ble Court, that Abhinav is charged with the
offence of Attempt to Murder of Gurinder under section 307 of the Indian Penal Code, 1860
and is put on trial.46

Section 307 provides that:

“Whoever does any act with such intention or knowledge, and under such circumstances that,
if he by that act caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either
to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.”

It is submitted that to constitute an offence under Section 307 two ingredients of the offence
must be present:

 an intention of or knowledge relating to commission of murder [2.1];

 and the doing of an act towards it.47 [2.2]

2.1 THAT THE ACCUSED HAD AN INTENTION OF MURDERING GURINDER

It is most respectfully submitted that it has been held that “The Code uses the word intention,
in the sense that something is intentionally done if it is done deliberately or purposely, in other
words is a willed though not necessarily a desired result or result which is the purpose of the
deed.48

It is a settled law that whether a person intended to kill another would depend on the facts and
circumstances of each case.49 It is submitted that intention cannot be proved by direct evidence
but is to be detected from the facts and circumstances of the case. There are various relevant

46
Line 26, Factsheet.
47
Om Parkash v. The State of Punjab, AIR 1961 SC 1782; Parsuram Pandey and Ors. v. The State of Bihar AIR
2004 SC 5068; Prakash Chandra Yadav v. State of Bihar (2007); R. Prakash v. State of Karnataka (2004) 9SCC
27; Hari Mohan Mandal v. State of Jharkhand (2004) 12 SCC 220; Vasant Vithu Jadhav v. State of
Maharashtra, (2004) 9 SCC 31.
48
Sreedharan v. State of Kerala, AIR 1970 Ker. 98.
49
Vasant Vithu Jadhav v. State of Maharashtra (2004) 9 SCC 31; Gandaram Taria v. State, 1982 CrLJ 1229
(Orissa).
9

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

considerations like the nature of weapon used, the place where the injuries were reflected, the
nature of the injuries caused, the opportunity available which the accused gets etc.50

In case of Kuldip Singh v. State,51 the accused tried to hit the victim with a naked sword but
somehow the victim got saved and the blow only caused simple injury, but the court convicted
the accused under section 307 IPC because of the dangerous weapon used, which gave away
the intention of the accused, which was to murder the victim.

The term “deadly weapon” has been defined in Black‘s Law Dictionary, 6th edition at page 398
to mean; “any fire arm or other weapon, device, instrument, material or substance, whether
animate or inanimate, which in the manner it is used or is intended to be used is known to be
capable of producing death or serious bodily injury.

Such weapons or instruments are made and designed for offensive or defensive purposes or for
destruction of life or inflation of injury, one which, from the manner used, is calculated or
likely to produce death or serious bodily injury.

In Sukhvinder Singh v. State (Govt. Of NCT of Delhi)52 , the court observed that:

“5. .. Knives are weapons available in various sizes and may just cause little hurt or may be
the deadliest. They are not deadly weapons per se such as would ordinarily result in death by
their use. What would make a knife deadly is its design or the manner of its use such as is
calculated to or is likely to produce death. It is, therefore, a question of fact to be proved and
prosecution should prove that the knife used by the accused was a deadly one.

In the present case, the accused had brought a Huge Knife from the Hostel Canteen53, and used
it in a deadly manner leading to an injury causing 12 stitches54 on the forearm of Gurinder.
Keeping in mind the force & manner with which the knife was used, an inference can be
sufficiently drawn that the intention of the accused was nothing short of Murder.

50
Gangadhar v. State of Maharashtrsa, 1981 CrLJ 1725 (Bom.); Hingu v. State of U.P, 1998 CrLJ 4154 (All.);
Pran Dutt v. State of Uttar Pradesh, 1982 ALJ 519; Kumar Majhi v. State 1981 CrLJ 1787 (Orissa).
51
(1988) 3 Crimes 628(1) Del (SN).
52
Crl. A. No.1358/2012.
53
Line 16, Moot Proposition.
54
Line 23, Moot Proposition.
10

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

So basically if the intention or necessary knowledge to cause death as envisaged by section

300 IPC which defines murder is there, then it is immaterial to whether or not any hurt was
caused to the victim by the accused.55

The intention and knowledge of the act being done is one of the major factors that is used to
decide conviction under section 307 but it is not the only factor. The circumstances under which
the act was done also weighs heavily when the conviction is given under this section. The
words “under the circumstances” have nothing to do with the fact or question that whether the
act of the accused was enough to cause death of the victim or not, rather it deals with the nature
of his offence which the accused would have committed if his act had caused death of the
victim. “Before the act can hold that the act committed by the accused amounts to attempt to
murder or attempt to commit to culpable homicide, it should be satisfied that the act was
committed with such intention or knowledge under such circumstances that if it had caused
death, it would have amounted, in one case, to murder and in another case, to culpable
homicide not amounting to murder.”56

In the case of Jodha v. State of Rajasthan57, the court ruled that merely because a person was
stabbed in the thigh and not in a vital body part, it cannot be said that the case does not fall
under the ambit of section 307.

The Supreme Court in the matter of Hari Kishan v. Sukhbir Singh and Ors58 observed that:

“Under Section 307 IPC what the Court has to see is, whether the act irrespective of its result,
was done with the intention or knowledge and under circumstances mentioned in
that section. The intention or knowledge of the accused must be such as is necessary to
constitute murder. Without this ingredient being established, there can be no offence of
"attempt to murder". Under Section 307 the intention precedes the act attributed to accused.
Therefore, the intention is to be gathered from all circumstances, and not merely from the
consequences that ensue. The nature of the weapon used, manner in which it is used, motive
for the crime, severity of the blow, the part of the body where the injury is inflicted are some
of the factors that may be taken into consideration to determine the intention.”

55
Ratanlal & Dheerajlal, The India Penal Code (32nd ed., Lexis Nexis Butterworths, 2010) 1753-83.
56
Ratanlal & Dheerajlal, The India Penal Code (32nd ed., Lexis Nexis Butterworths, 2010) 1753-83.
57
(1982) Raj Crl. 94.
58
Hari Kishan v. Sukhbir Singh and Ors, AIR 1988 SC 2127.
11

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

The Supreme Court upheld the opinion of Strait J., in the landmark judgment of Om Prakash
v. The State of Punjab59:

"It seems to me that if a person who has an evil intent, does an act which is the last possible
act that he could do towards the accomplishment of a particular crime that he has in his mind,
he is not entitled to pray in his aid an obstacle intervening not known to himself. If he did all
that he could do and completed the only remaining proximate act in his power, I do not think
he can escape criminal responsibility, and this because his own set volition and purpose having
been given effect to their full extent, a fact unknown to him and at variance with his own belief,
intervened to prevent the consequences of that act which he expected to ensue, ensuing."

In the same judgment60 SC followed the law laid down in the case of Emperor v. Vasudeo
Balwant Gogte61 in which a person fired several shots at another. No injury was in fact
occasioned due to certain obstruction. The culprit was convicted of an offence under s. 307.
Beaumont, C.J., said:

"I think that what section 307 really means is that the accused must do an act with such a guilty
intention and knowledge and in such circumstances that but
for some intervening fact the act would have amounted to murder in the normal course of
events".

Further, in the recent judgment of Parsuram Pandey and Ors. v. The State of Bihar62, it was
held that:

“For the purpose of Section 307 what is material is the intention or the knowledge and not the
consequence of the actual act done for the purpose of carrying out the intention. Section clearly
contemplates an act which is done with intention of causing death but
which fails to bring about the intended consequence on account of intervening circumstances.

The intention or knowledge of the accused must be such as is necessary to constitute murder.
In the absence of intention or knowledge which is the necessary ingredient of Section307, there
can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved
by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some
of the relevant considerations may be the nature of the weapon used, the place where injuries

59
AIR 1961 SC 1782.
60
Ibid.
61
I.L.R (1932) 56 Bom. 434.
62
AIR 2004 SC 5068.
12

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

were inflicted, the nature of the injuries and the circumstances in which the incident took
place.”

Thus in the light of the prevailing circumstances and the relevant considerations like the
accused going to the Hostel Canteen to bring a huge knife, instead of going to the warden,
clearly points out his intention to fatally harm both the victims in this case, and in case of
Gurinder, the 12 stitches caused due to the infliction of injury, highlights that the accused had
the required murderous intent.

2.2 THAT THE OFFENCE UNDER SECTION 307 WAS COMMITTED

It is most humbly submitted that in the reported judgement of State of M.P. v. Kashiram &
Ors.63, the court held the following:

To justify a conviction under s.307 IPC, it is not essential that bodily injury capable of causing
death should have been inflicted. Although the nature of injury actually caused may often give
considerable assistance in coming to a finding as to the intention of the accused, such intention
may also be deduced from other circumstances, and may even, in some cases, be ascertained
without any reference at all to actual wounds. The Section makes a difference between an act
of the accused and its result, if any. Such an act may not be attended by any result so far as the
person assaulted is concerned, but still there may be cases in which the culprit would be liable
under this Section.

It is not necessary that the injury actually caused to the victim of the assault should be sufficient
under ordinary circumstances to cause the death of the person assaulted. What the Court has
to see is whether the act, irrespective of its result, was done with the intention or knowledge
and under circumstances mentioned in the Section. An attempt in order to be criminal need not
be the penultimate act. It is sufficient in law, if there is present an intent coupled with some
overt act in execution thereof.

63
AIR 2009 SC 1642.
13

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Arguments Advanced

The interpretation given in State of M.P. v. Kashiram & Ors. has been followed in catena of
judgments64. Further, in the matter of Abhiram Mukhi v. State of Orissa65, it was observed by
the Court that:

“The question, however, remains as to whether it can be said beyond all reasonable doubt that
an offence under Section 307, I.P.C, has been made out.

In order to bring home the charge under Section 307, the prosecution has to establish the
following :- (i) death of human being was attempted to be caused by or in consequence of the
act of the accused; (ii) such act was done by the accused with intention of causing death or with
intention of causing such bodily injury as the accused knew to be likely to cause death or was
sufficient in the ordinary course of nature to cause death, or that by doing such an act as the
accused knew to be so imminently dangerous that it must in all probability cause death or such
bodily injury as is likely to cause death.… In a given case offence under Section 307, I.P.C.
can be said to have been committed even without the slightest injury. It is the nature of the act
and not the result thereof that is the determinative factor.”

It is most humbly submitted that there was an overt action by the Accused towards commission
of murder when he went to the hostel canteen, brought a huge knife, which is indicative of the
criminal intent, with which the accused proceeded ahead with his act. The very fact that the
accused used a Huge Knife, itself is clear of the fact that he had a hostile intent to fatally harm
the victims in this case.

Thereafter, he even attempted to flee from the crime scene, but was apprehended at the gate,
by the security guards. Thus, it is submitted that above stated facts clearly prove beyond doubt
that death of Gurinder was attempted which couldn’t be accomplished because he ran away to
save his life.

Hence, it is most respectfully submitted that Accused should be convicted for Attempt to
murder under Section-307 of the IPC.

64
Parsuram Pandey and Ors. v. The State of Bihar AIR 2004 SC 5068; Prakash Chandra Yadav v. State of
Bihar & Ors. (2007)13 SCC 134; Vasant Vithu Jadhav v.State of Maharashtra, (2004) 9 SCC 31; R. Prakash
v.State of Karnataka, (2004) 9 SCC 27; Hari Mohan Mandal v. State of Jharkhand, (2004) 12 SCC 220; State
of Madhya Pradesh v. Saleem @ Chamaru and Anr, AIR 2005 SC 3996.; Girija Shankar v. State of U .P.(2004)
3 SCC 793; Bappa alias Bapu v. The State of Maharashtra and Anr, AIR 2004 SC 4119; Kulamani Sahuand
Anr. Vs.: State of Orissa, 1994 CriLJ 2245 ; Tatigari Durgaiah S/o. Lakshmaiah v. The State of A.P. the rep.by
Public Prosecutor, High Court of A.P. 2007 CriLJ 524.
65
82 (1996) CLT 576.
14

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION

Prayer

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon‘ble Court be pleased to:

1. Convict Abhinav for the offence of committing Murder & Attempt to Murder under
Sections 302 r/w 307 of the Indian Penal Code, 1860.

2. Declare a sentence of rigorous imprisonment for life and also be liable to fine under
Sections 302 r/w 307 of the Indian Penal Code, 1860.

AND/OR

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Fairness, Equity & Good Conscience.

For This Act of Kindness, the Prosecution as in Duty Bound, Shall Forever Pray.

Place: Chandigarh S/d_________

Date: 28th August, 2017 PUBLIC PROSECUTOR

XIII

WRITTEN SUBMISSION ON BEHALF OF PROSECUTION