R135

36th All India Inter- University Moot Court

Competition 2020
BAR COUNCIL OF INDIA
BEFORE THE HON’BLE SUPREME COURT

In the Matter of:

Union of Zudia………………………………………………………….……Appelant
V.
Mr. Suresh, Ramesh and others……………………………………………………Respondent

CRIMINAL APPEAL NOS._____/2020

CLUBBED WITH
CROSS CRIMINAL APPEAL NOS._____/2020

PETITION INVOKED UNDER ART. 136 OF

THE CONSTITUTION OF ZUDIA
___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF ZUDIA

MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

 R135

TABLE OF CONTENTS

LIST OF ABBREVIATION...................................................................................................02

INDEX OF AUTHORITIES..................................................................................................03

STATEMENT OF JURISDICTION.....................................................................................05

STATEMENT OF FACTS.....................................................................................................06

STATEMENT OF ISSUES....................................................................................................07

SUMMARY OF ARGUMENTS............................................................................................08

ARGUMENTS ADVANCED................................................................................................09

1. THAT THE APPEAL FILED IS NOT MAINTAINABLE……………………………………...09

1.1. The petitioner have no locus standi………………………………………..…………09
1.2. Involves no substantial question of law……………………………………………...10
2. THE ACCUSED HAS NOT COMMITTED CULPABLE HOMICIDE NOT AMOUNTING TO
MURDER………………………………………………………………………….………10
2.1. Actus reus is not established…………….…………………………………………...11
2.2. Mens rea is not established…………………………………………………………..11
3. THAT CONVICTION UNDER SECTION 307 WAS NOT ESTABLISHED BEYOND REASONABLE
DOUBT………………………………………………… ………………………………...12
3.1. No intention to commit to murder…………………………………………................12
3.2. Nature of the weapon used in the incident..…………………………………………..13

PRAYER…………………………………………………………………………………….14

Page 1 of 15
 R135

LIST OF ABBREVIATIONS
¶ : Paragraph

A.I.R : All India Reporter

Art. : Article

Bom : Bombay

Const. : Constitution

Cl : Clause

Cal : Calcutta

Cr. P. C. : Code of Criminal Procedure

CWN : Calcutta Weekly Report

DLT : Delhi Law Times

Edn. : Edition

HC : High Court

Hon'ble : Honourable

i.e : That is

LR : Law Reporter

OLR : Orissa Law Review

S.C : Supreme Court

S.C.C : Supreme Court Cases

SLP : Special Leave Petition

SCR : Supreme Court Reporter

UP : Uttar Pradesh

V. : Versus

VS. : Versus

Page 2 of 15
 R135

INDEX OF AUTHORITIES1.

[A.] CASES

1. Abraham Mallory Dillet re (1887) 12 A.C 459……………………………………….10

2. Boya Munigadu V. The Queen I.L.R 3 Mad. 33………………………………………11
3. Ganga kumar srivastava V. State of Bihar, 2005 6 S.C.C 211…………………………9
4. K.M Nanavati v. State of Maharashtra A.I.R 1962 S.C 605………………………….11
5. Marinal Das v. State of Tripura (2011) 9 S.C.C. 479…………………………………13
6. Marana Goundan (in re:), A.I.R. 1941 Mad 560………………………………………13
7. Nazuk Zahan V. Addl. DJ, A.I.R 1981 S.C 1549……………………………………..10
8. Nachal (in re:), A.I.R. 1941 Mad. 560………………………………………………...13
9. Perana v. Emperor 1936 All. L.J. 333………………………………………………...13
10. R. J. Singh Ahuluwalia V. State of Delhi, A.I.R 1971 S.C 1552………………………9
11. R. V. Duffy, (1949) 1 ALL E.R 932…………………………………………………..12
12. R. V. Govinda, I.L.R (1876) 1 Bom. 342…………………………………………….11
13. Ram Khelawan V. State of Madhya Pradesh, 2014 SCC Online Chh 29……………...11
14. State of U.P V. Krishna Gopal & Anr, A.I.R 1988 S.C 2154………………………….9
15. State of Tamil Nadu V. C.A Akhtar & Co., MANU/TN/0637/1997………………….11
16. Suresh & anr. v. State of U.P (2001) 3 S.C.C. 673……………………………………12
17. Sukbir Singh V. State of Haryana, A.I.R 2002 S.C 1168…………………………….10
18. Sukhbir Singh v. State of Haryana (2002) 3 S.C.C 327……………………………….11
19. Ujagar Singh V. State of Punjab, (2007) 13 S.C.C 90………………………………...10

[B.] STATUTES

1. The Constitution of India, 1950

2. The Code of Criminal Procedure, 1973
3. The Indian Evidence Act, 1872

[C] CONSTITUTION

1. The Constitution of India, 1950

[E] BOOKS

1. D.D Basu, Introduction to the Constitution of India, 23 rd Ed., 2018, LexisNexis,

Haryana

Page 3 of 15
 R135

2. Dr.J.N. Pandey, Constitution Law of India, 44th Ed., 2007. Central Law Agency,
Allahabad
3. H.M Sreevai, Constitutional Law of India, 4th Ed., 1993, N.M. Thripati Pvt. Ltd.
Bombay
4. M.P Jain, Indian Constitutional law, 5th Ed., 2003 rep.2005, Wadhwa & Co. Nagpur
5. P.M Bakshi , The Constitution of India, 4th Ed., 2000, Universal Law Publishing Co.
Pvt.Ltd., Delhi
6. R.V. Kelkar’s Criminal procedure including probation and juvenile justice, 6 th Ed.,
2017, EBC Publishing (P) Ltd., Lucknow
7. V.N Shukla, Constitution of India, 10th Ed., 2003 rep.2007, Eastern Book Company,
Lucknow
8. Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016
9. K.N. Chandrasekharan Pillai, General principles of criminal law, 432, (2 nd ed. 2011)
1. JWC Turner, Kenny’s Outlines of Criminal Law 101 (19th ed. 1966)

Page 4 of 15
 R135

STATEMENT OF JURISDICTION

It humbly submitted to Hon’ble Supreme Court of Zudia that the Court is empowered to hear
this case by the virtue of Article 136 of the Constitution of Zudia. The Hon’ble Supreme Court
of Zudia constituted a constitution bench to hear the matter which has all the jurisdiction to
hear it.

Page 5 of 15
 R135

STATEMENT OF FACTS

Mr. Ramesh Chaudha, a farmer, is living with his wife Mrs. Rekha, son Mr. Rajnish and
daughter Ms. Shruti in a remote village of Zumiana. Ms. Shruti joined a reputed engineering
college, in the nearby town. Mr. Kavish, is working as a data entry operator in a private
company in the town, closer to Ms. Shruti’s College. Incidentally, both Mr. Kavish and Ms.
Shruti go to the town in the same public transport. While going to town and coming back home,
both have become good friends and started liking each other. Mr. Ramesh, after coming to
know the intimate relationship, discussed the matter with his brother Mr. Suresh. Mr.Rajnish
on an occasion took Rs.40, 000/- from Kavish. On August 17 2019, Mr. Rajnish called Mr.
Kavish to his house to repay the loan amount of Rs. 40,000/-. At 8:30pm, on the same day,
when Mr. Kavish came to Mr. Rajnish’s house, Mr. Rajnish gave Rs.40, 000/- to Mr. Kavish
and asked him to leave immediately. While Mr. Kavish was about to leave the place, Ms. Shruti
suddenly came running out of the house and hugged him from behind. Before Mr. Kavish could
gain his senses from such a sudden incident, Mr. Ramesh rushed to his daughter and dragged
her inside the house and bolted the doors from outside. Mr. Suresh, in a fit of anger, brought a
lathi, usually available in every house, and started beating Mr. Kavish. Mr. Ramesh, shouted
‘kill him’. Mr. Rajnish caught hold of Mr. Kavish to prevent his escape. In the meantime, Ms.
Shruti managed to escape from an open window and rushed to protect her lover. Unfortunately,
she also received three serious blows on her head and collapsed unconscious. With the
intervention of neighbours, both were taken to the hospital where Mr. Kavish survived but Ms.
Shruti died after 10 days of her admission in the hospital. The Sessions Court convicted them
and imposed sentence of death for causing death of Ms. Shruti. They were also convicted for
attempt to murder Mr. Kavish and were sentenced to 7 years of imprisonment. On appeal, the
High Court confirmed the conviction of all the accused for ‘attempt to murder’ Mr. Kavish and
reduced the term of imprisonment to 5 years. However, the High Court changed the conviction
of all the accused for ‘murder’ into offence of ‘culpable homicide not amounting to murder’
for causing death of Ms. Shruti as they were under grave and sudden provocation, when Mr.
Kavish and Ms. Shruti hugged each other in their presence. The State has preferred an appeal
in Supreme Court challenging the order of High Court. All the three accused have also
preferred cross appeals before the Supreme Court challenging their convictions both for
causing death of Ms. Shruti and also for making an attempt to murder Mr. Kavish by High
Court.

Page 6 of 15
 R135

STATEMENT OF ISSUES

1. THAT THE APPEAL FILED IS NOT MAINTAINABLE

2. THE ACCUSED HAS NOT COMMITED CULPABLE HOMICIDE NOT AMOUNTING TO
MURDER
3. THAT CONVICTION UNDER SECTION 307 WAS NOT ESTABLISHED BEYOND
REASONABLE DOUBT

Page 7 of 15
 R135

SUMMARY OF ARGUMENTS

[1] THAT THE APPEAL FILED IS NOT MAINTAINABLE.

It is humbly submitted before this hon’ble court that the appellant has no locus standi to
approach the S.C because the present case does not involve any substantial question of law.
Criminal Appellate jurisdiction in SC can arise only through Article 134 or 136 of the
Constitution of India. In the present case, none of the conditions under Article 134 are satisfied
to entertain this appeal. . The basic principles underlying Special Leave to Appeal under Article
136 of the Constitution of India are not satisfied as in criminal appeals this Court does not
interference with the concurrent findings of fact.

[2] THE ACCUSED HAS NOT COMMITTED CULPABLE HOMICIDE NOT AMOUNTING TO
MURDER.

The accused has not committed culpable homicide not amounting to murder- It is humbly
submitted before this hon’ble court that the decision of H.C is unjustifiable. Firstly, the accused
Mr. Suresh, Mr. Ramesh, Mr. Rajnish are not guilty of the offences charged under section 304
read with section 34 of zudian penal code 1860 and the chain of circumstantial evidence is
clearly established and there exist reasonable doubt. Hence, they should not be convicted.

[3] THAT CONVICTION UNDER SECTION 307 WAS NOT ESTABLISHED BEYOND REASONABLE
DOUBT.

It is humbly submitted before this Hon’ble Court that all the accused 1,2 and 3 didn’t had any
mala fide intention to cause death of Mr. Kavish. As all happened in the heat of the moment
without any predetermination of mind as Mr. Suresh brought a lathi from inside the house
which is a common household item instead of a deadly weapon to cause death. In this present
case simple hurt has been caused to Mr. Kavish under section 319 out of the heat of the moment.

Page 8 of 15
 R135

ARGUMENT ADVANCED

MOST HUMBLY SUBMITTED THAT:-

[1] THAT THE APPEAL FILED IS NOT MAINTAINABLE.
[¶1]It is humbly submitted before this hon’ble court that the petitioner has no locus standi to
approach the S.C because the present case does not involve any substantial question of law.
1.1 The petitioner have no Locus Standi.
[¶2]It is most humbly submitted before this Honourable Court that the SC will not interfere
with the concurrent finding of the courts below unless of course the findings are perverse or
vitiated by error of law or there is gross miscarriage of justice. Criminal appeals may not be
brought to the SC by the appellant when they are not covered by the jurisdiction of the SC of
India.1
[¶3]It is limited in the sense that the SC has been constituted as a Court of criminal appeal in
exceptional cases where the demand of justice requires interference by the highest court of the
land. 2There are two modes by which a criminal appeal from any judgments, final order or
sentence in a criminal proceeding of a HC can be brought before the SC: a) Without the
certificate of HC; b) With the certificate of HC- The HC can issue a certificate in its own motion
or if an oral application is made by the aggrieved party immediately after passing the
judgement.3
[¶4]In the present case, none of the conditions under Art. 134 are satisfied to entertain this
appeal. The other remedy available is under Art. 136. The basic principles underlying Special
Leave to Appeal under Art. 136 of the Constitution are not satisfied as in criminal appeals this
Court does not interference with the concurrent findings of fact, save in exceptional
circumstances and when the question of law of general public importance arises or a decision
shocks the conscience of court then art. 136 can be invoked. The SC does not interfere with the
HC findings of acquittal unless that finding is clearly unreasonable or manifestly illegal or is
vitiated by some glaring infirmity in the appraisal of evidence, or the HC completely misdirects
itself in reversing the order of conviction by the trial court, or it results in gross miscarriage of
justice. 4 Also the SC does not allow a point not rose before the courts below to be raised before

1
Ganga kumar srivastava V. State of Bihar, 2005 6 S.C.C 211
2
Mahendra Pal Singh, V. N Shukla’s Contitution of India, 497 (12th ed. 2013)
3
Indian Const. art. 134 A
4
State of U.P V. Krishna Gopal & Anr, A.I.R 1988 S.C 2154

Page 9 of 15
 R135

itself for the first time.5 Every error, even of law, does not justify interference under article
136. 6 In the present case there is no error of law. In this present case the circumstances do not
form a chain, such lacunae leaves a lot of room for several possibilities and doubt. Therefore,
in light of the above mentioned arguments stated; the petitioner has no locus standi to approach
the Honourable SC.
1.2 Involves no substantial question of law.
[¶5]It is most humbly submitted before this Honourable court that the present case does not
involve any substantial question of law. In Abraham Mallory Dillet re7, it was observed that
the Privy Council would not review criminal proceedings unless it is shown that by a disregard
of the forms of legal process or some violation of the principles of natural justice or otherwise,
substantial or grave injustice has been done.
[¶6]The findings of the HC have to be judged by the yardstick of reason to ascertain whether
such findings were erroneous, perverse and resulted in miscarriage of justice, if the conclusion
of the court below can be supported by acceptable evidence, the SC will not exercise the
discretion to interfere with the decision and if the two views are possible, the view in the favour
of the accused has been accepted.8 Also SC stated that it must nonetheless be emphasised that
whether a chain is complete or not would depend on the facts of each case emanating from the
evidence and no universal yardstick should ever be attempted.9
[2] THE ACCUSED HAS NOT COMMITTED CULPABLE HOMICIDE NOT AMOUNTING TO
MURDER.
[¶7]It is humbly submitted before this hon’ble court that the decision of H.C is unjustifiable.
Firstly, the accused Mr. Suresh, Mr. Ramesh, Mr. Rajnish are not guilty of the offences charged
under section 304 read with section 34 of zudian penal code 1860 and the chain of
circumstantial evidence is clearly established and there exist reasonable doubt. Hence, they
should not be convicted.
2.1 Actus reus is not established.
[¶8]It is most respectfully submitted to this hon’ble court that, the post mortem report of shruti
specifies that none of the injuries independently sufficient to cause death with clarification that

5
R. J. Singh Ahuluwalia V. State of Delhi, A.I.R 1971 S.C 1552
6
Nazuk Zahan V. Addl. DJ, A.I.R 1981 S.C 1549
7
(1887) 12 A.C 459
8
Sukbir Singh V. State of Haryana, A.I.R 2002 S.C 1168
9
Ujagar Singh V. State of Punjab, (2007) 13 S.C.C 90

Page 10 of 15
 R135

they cumulatively were sufficient to cause death in the ordinary course of nature.10 This makes
it clear that weapon used in grave and sudden provocation was not dangerous. The question of
degree of probability is generally resolved by considering the nature of weapon used. A blow
from a fist stick on a vital part may be likely cause death, but wound from sword in vital part
is sufficient to cause death in ordinary course of nature.11
[¶9]In Sukhbir Singh v. State of Haryana12 the Supreme Court held that “All fatal injuries
resulting in death cannot be termed as cruel or unusual for the purpose of not availing the
benefit of Exception 4 of Section 300 IPC”. With regard to the facts on record it is clearly shown
that in the heat of passion upon a sudden provocation, appellants with lathi not being a lethal
weapon caused injuries at random and thus did not act in a cruel or usual manner.
 Conduct of accused –the conduct clearly shows that he had not committed the crime. Here,
the accused had administered her to room and bolted the doors from outside. 13 This shows that
they tried to save her even from hurt and separated both of them. This clearly shows that there
was not any intent of the accused to cause death of shruti.
2.2 Mens rea is not established.
[¶10]It is most respectfully submitted to this hon’ble courts that section 335 which deals with
Voluntarily causing grievous hurt on provocation is clearly applicable here.
In zudian penal code, mens rea is inbuilt in a statute.14mens rea is considered as guilty
intention15, which is of the accused proved or inferred from the act. That in K.M Nanavati v.
State of Maharashtra 16, it was laid down by the court that No abstract standard of
reasonableness can be laid down of what amounts to grave and sudden provocation. What a
reasonable man will do in certain circumstances depends upon the customs, manners, way of
life, traditional values etc. In the present case, shruti hugged kavish from back and asked him
to take her with him this lead to grave and sudden provocation for accused as the family was
against it. In Boya Munigadu V. The Queen17, the Madras High Court held that“… the State
of the mind of the accused, having regard to the earlier conduct of the deceased, may be taken
into consideration in considering whether the subsequent act would be sufficient

10
¶ 12, PAGE 2, STATEMENT OF FACT, 36th All India Inter-University Moot Court Competition, 2020.
11
R. V. Govinda, I.L.R (1876) 1 Bom. 342
12
(2002) 3 S.C.C 327
13
¶ 9, PAGE 2, STATEMENT OF FACT, 36th All India Inter-University Moot Court Competition, 2020.
14
Ram Khelawan V. State of Madhya Pradesh, 2014 SCC Online Chh 29
15
State of Tamil Nadu V. C.A Akhtar & Co., MANU/TN/0637/1997
16
A.I.R 1962 S.C 605
17
I.L.R 3 Mad. 33

Page 11 of 15
 R135

provocation...”The a actually causes of provocation in the accused, a sudden and temporary

loss of self - control, rendering the accused so subject to passion as to make him or her for the
moment not master of his mind. 18
[¶11]There is a thin demarcation line between ‘hurt which endangers life’ (clause 8 of sec 320)
and ‘injury as is likely to cause death’ (sec 299). In Muhammad Rafi case19, the Lahore H.C
Held that the accused is liable for causing death by grievous hurt as against the culpable
homicide not amounting to murder as the circumstances did not justify a finding that the
appellant knew that he was likely to cause death.
[¶12]Shruti died because of injury from accidental blow of lathi. This happened in grave and
sudden provocation as she hugged kavish from back. The accused had no culpable intention to
cause death of shruti which is clearly established. So, the accused are not liable for culpable
homicide not amounting to murder.
[3] THAT CONVICTION UNDER SECTION 307 WAS NOT ESTABLISHED BEYOND REASONABLE
DOUBT.

[¶13]It is humbly submitted before this Hon’ble Court that by taking into the statement of fact,
accused 1, 2 and 3 had no mala fide intention to commit an attempt to murder since they didn’t
have intention to administer the use of lathi and give blow on Mr. Kavish. And such act is out
of heat of the moment so, they are not guilty of offence under s. 307, Zudian Penal Code, 1860.

3.1. No intention to commit an attempt to murder

[¶14]It is contended that there are umpteen numbers of reasons which could prove that there is
no mala fide intention on the part of the all three appellant. That all didn’t had the common
intention as per the requirement of s. 3420 to cause the death of Mr. Kavish as they all went to
outside the house on hearing the loud crying of Ms. Shruti and they saw both are hugging in
front of them. So, in anger her father locked her inside the house. Moreover in the majority
view taken by Sethy, J and Aggrawal, J in the case of Suresh & anr. v. State of U.P.21 it was
held “….Intention is to be Judged by the act in relation to the surrounding circumstances…”
as in the present case such circumstances shows that it all happened in the heat of the moment
without any predetermination of mind as Mr. Suresh brought a lathi from inside the house

18
R. V. Duffy, (1949) 1 ALL E.R 932
19
A.I.R 1930 Lah. 305
20
Indian Penal Code § 34.
21
(2001) 3 S.C.C. 673.

Page 12 of 15
 R135

which is a common household 22 item instead of a deadly weapon. It was observed in the case
of Marinal Das v. State of Tripura 23 that “…Section 34 requires a pre-arranged plan and
presupposes prior concert, therefore there must be prior meeting of mind & it can be developed
at the spur of the moment but there must be pre-arrangement or pre-mediation concept.” This
is not in the present case as all lost their temper on seeing them with each other and if they
were pre-arranged to cause death of Mr. Kavish then they would have armed themselves with
sharp lethal weapon. Hence, there is no intention on their part.

3.2. Nature of the weapon used in the incident

[¶15]It is humbly submitted that in the instant case lathi is used only to cause some simple hurt
instead of causing death as in a case which is pertinent to this instant case, Perana v.
Emperor24 it was observed that “the use of lathi is certainly dangerous but is not so dangerous
that one would suppose that anybody would be in ordinary course think that death is a probable
cause of use of lathi. Our experience is that lathis are frequently used and result in nothing
more than injuries which are simple hurts or grievous hurts.” As in the present case lathi has
been used instead of deadly weapon only to cause simple hurt without any malice.

3.3. Intention of the accused is to cause simple hurt under section 319

[¶16]That it has been clearly shown that they used the lathi which is usually available in every
house which is not a dangerous weapon so as to cause death of Mr. Kavish in usual course of
time. In this present case simple hurt has been caused to Mr. Kavish under section 319, 25
according to which an act which causes bodily pain instead of causing murder to Mr. Kavish.
As when the injury is not serious and there was no intention to cause death, nor had the
knowledge that it was likely to cause death, or grievous hurt, the accused would be guilty of
causing hurt only. 26 Thus, in the absence of an intention to cause death, or grievous bodily hurt,
where person died as a result of two kicks on the abdomen in a case, the accused was held
guilty of causing hurt only. 27.

22
¶ 10, PAGE 2, STATEMENT OF FACT, 36th All India Inter-University Moot Court Competition, 2020.
23
(2011) 9 S.C.C. 479.
24
1936 All. L.J. 333.
25
Indian Penal Code § 319.
26
Nachal (in re:), A.I.R. 1941 Mad. 560.
27
Marana Goundan (in re:), A.I.R. 1941 Mad 560.

Page 13 of 15
 R135

PRAYER

Wherefore in the light of the issues raised, argument advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare:

1. That the appeal filed is not maintainable.

2. That the acused has not committed culpable homicide not amounting to murder.

3. That sufficient punishment is given for the offence under section 319 only.

AND PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY
DEEMED IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH HUMBLY PRAYED

TC-135

COUNSELS FOR THE RESPONDENT

Page 14 of 15