TEAM CODE: I

BEFORE THE HONOURABLE HIGH COURT OF THE STATE OF BHIMAPURA

Original Criminal Jurisdiction

CRA-CRIMINAL APPEAL

In the matter of
Setting aside of conviction held under sec.302 & 506(2) of IPC
r/w sec. 135 of Bhimapura Police Act.

CRIMINAL APPEAL NO. ______ OF 2020

UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE.

DEEPAK …………..………….………………………………..APPELLANT

Versus

STATE OF BHIMAPURA & ORS. …………………………….. RESPONDENTS

UPON SUBMISSION TO
THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES
OF
THE HONOURABLE HIGH COURT OF THE STATE OF BHIMAPURA

FACULTY LEVEL MOOT COURT COMPETITION-2020

MEMORANDUM ON BEHALF OF RESPONDENTS

|
 TABLE OF CONTENTS

I. Table of Contents………………………………………………………………………………….A

II. List of Abbreviations……………………………………………………………………………...B

III. Index of Authorities…..………………………………………………………………….……….C

IV. Statement of Jurisdiction……….…………………………………………………………………1

V. Statement of Facts…………………………………………………….……………………..……2

VI. Issues Raised…………………………………………,………………………………...…………4

VII. Synopsis of Argument……………………………….………………..….……………………….5

VIII. Argument Advanced……..……………………………………………………………………….7

IX. Prayer……………………..………….……………………………………………...………….15

MEMORANDUM ON BEHALF OF THE RESPONDENT |A|

 LIST OF ABRIVATIONS

ABBREVIATION FULL FORM

AIR ALL INDIA REPORTER

Art. ARTICLE

CRA CRIMINAL APPEAL

Cr LJ Criminal law journal of India

CRPC CODE OF CRIMINAL PROCEDURE

H.C. HIGH COURT

HON’BLE HONORABLE

i.e. THAT IS

IPC INDISH PENAL CODE

ORS. & ANR. OTHERS

PARA. PARAGRAPH

MISC MISCELLANOUS

S. / SEC. SECTION

SC SUPREME COURT

SCC SUPREME COURT CASES

V.&V/S VERSUS

MEMORANDUM ON BEHALF OF THE RESPONDENT |B|

 INDEX OF AUTHORITIES & BIBLIOGRAPHY

LIST OF CASES REFERED :

i. Dhananjay chaterjee v/s union of India (1998) 4 SCC 456 (462)

ii. Mahesh v/s State of Madhya Pradesh (1987) 3 SCC 80 (82)
iii. K.M. Nanavati v/s State of Maharastra AIR 1962 SC 605
iv. Jaipal v/s State of Harayana AIR,2000 SC 1271
v. Balan v/s State of UP AIR 1955 ALL 626
vi. Gyanendra Kumar v/s State of UP AIR1972 SC 502
vii. Jagmohan singh vs. state of UP AIR 1973 SC 947
viii. Malempati pattabhi narendra v. Ghattamaneni Maruthi prasad (2000) 5 SCC 226

LIST OF STATUTES & AGREEMENTS REFERRED :

I. THE CONSTITUTIONAL OF INDIA, 1950.

II. INDIAN PENAL CODE, 1860
III. THE CODE OF CRIMINAL CODE, 1976
IV. INDIAN ARMS ACT,1959
V. THE INDIAN EVIDENCE ACT, 1872
VI. THE GUJARAT POLICE ACT, 1951

BOOKS:

I. CONSTITUTIONAL LAW OF INDIA BY DR. J. N. PANDAY.

II. THE LAW OF EVIDENCE BY RATANLAL AND DHIRAJLAL.
III. CRIMINAL LAW BY PSA PILLAI
IV. INDIAN PENAL CODE BY KD GAUR
V. THE CODE OF CRIMINAL PROCEDURE BY RATANLAL AND DHIRAJLAL
VI. GUIDE TO CRIMINAL LAW AND PROCEDURE BY N.K. ACHARYA
VII. JOURNAL OF THE INDIAN LAW INSTITUTION [Vol. 16:3]
VIII. CONCISE LAW DICTIONARY BY P. RAMANATHA AIYAR’S
IX. BLACK’S LAW DICTIONARY BY BRYAN A. GARNER.

MEMORANDUM ON BEHALF OF THE RESPONDENT |C|

 ELECTRONIC MEDIUM:

I. https://blog.ipleaders.in/
II. https://www.legallyindia.com/
III. https://barandbench.com/
IV. https://indiankanoon.org/
V. https://www.hindustantimes.com
VI. https://pib.gov.in
VII. http://www.legislative.gov.in
VIII. https://www.livelaw.com
IX. https://www.prs.com
X. https://www.manupatra.com
XI. https://www.scc.com
XII. https://www.ili.ac.in

MEMORANDUM ON BEHALF OF THE RESPONDENT |D|

 STATEMENT OF JURISDICTION

THE HON’BLE HIGH COURT OF BHIMAPURA STATE HAS THE JURISDICTION

TO HEAR AND ADJUDICATE OVER THE MATTER UNDER SEC. 374(2) OF THE
CODE OF CRIMINAL PROCEDURE 1973,

THE PROVISION UNDER WHICH THE APPELLLANT HAS APPROACHED THE

HON’BLE COURT IS READ HEREIN UNDER AS:

Sec. 374 of The Code of Criminal Procedure of Indish.

Appeals from convictions.
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other Court in which a sentence of imprisonment for more
than seven years has been passed against him or against any other person convicted at the
same trial, may appeal to the High Court.
(3) Save as otherwise provided in sub- Sec. (2), any person,

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge

or Magistrate of the first class, or of the second class, or

(b) sentenced under Sec. 325, or

(c) in respect of whom an order has been made or a sentence has been passed under
Sec. 360 by any Magistrate, may appeal to the Court of Session.

MEMORANDUM ON BEHALF OF THE RESPONDENT |1|

 SUMMARY OF FACTS

• Appeal is filed before this Hon’ble court where appellant and victim were having no nexus
but proximity of malice brought them to the nexus.
• The victim was the friend of Atul who was the cousin of accused i.e., Deepak.
• One day Deepak and atul were working in the same factory which resulted into some petty
issue which was dragged more from Deepak by going to atul’s place.
• Now, Elaborating the facts by the proper contention, the dispute was happened in the factory
premises but it was not resolved at that time.
• After going back to home, Deepak asked his father to join with him to mitigate the issue by
going at atul’s place.
• When Deepak reached with his father at atul’s place he saw that, there were 4 more people
other than atul i.e., his mother and 3 friends namely Sharad, Chandra and Surya.
• The arguments results into heat-up situation, in that moment atul and Deepak curse each
other while at one moment atul cursed deepak’s father which led deepak loosing his temper
which ended up by saying that “I will kill you” which made atul and his friend worried. By
which they said to Deepak go out from there house.
• After a while, when Deepak reached at his home, he called to atul after an passing of hour
and decided to meet at G10 mall after 15 minutes. When he left home he was having
possession of knife in his pocket when he reached at mall.
• Further he saw that atul was companied with his three friends along with 2 lathis and a
baseball bat in their hand’s.
• Deepak after reaching mall, he was entering in the premises looking to which atul and his
friend started moving towards Deepak which led Deepak worried and he started moving
towards the lane where no frequent pedestrian is seen.
• As soon as atul and his friend reached near to Deepak, Deepak having thought of execution
of his pre-determined thought.
• Soon thereafter Deepak took out a knife from his jeans pocket and warn them to stay away,
thereafter sharad who was holding the stick in his hand moved towards Deepak to let him
keep his knife aside.
• Deepak caused a single blow injury to sharad on the right side of his chest with the knife
which caused an wound and damaging his lung and he ran away.
• Further seeing the blood veining out from wound, led atul and his other friends in a
pressurable situation and soon after they tooked victim to the nearest hospital for treatment.

MEMORANDUM ON BEHALF OF THE RESPONDENT |2|

 • Where they got to know that he is suffering from badly lungs damage and wound has been
so deeper that leaded to heavy blood loss and where on the advise of doctor they shifted
victim to government civil hospital.
• As soon as they reached with victim the treatment was started in the operation threater.
While in the fractions of time he rested his life.
• After that an autopsy was conducted and it was found that the death was due to cardiac
arrest followed by lung injury.
• As soon as receiving the complaint by atul an FIR was launched against the Deepak as per
Sec. 154 of Crpc. u/s 302, 506(2) of IPC r/w Sec. 135 of Bhimapura police act for
murdering victim with a deadly weapon and also threatening to kill atul at his premises.
• Soon investigation was conducted and charge sheet was filled by investigating officer under
the respective Section’s.
• The charge sheet was containing testimonies of 5 eye-witness present at the place including
Surya, Chandra and complainant.
• Thereafter the statement of accused u/s 313, CrPC was recorded whereby accused was
denying all the allegations against him and stated that he was innocent and that he was
charge-sheeted due to wrong investigation. The Ld. City Session Judge pronounced a
judgement against the accused.
• Thereafter learned city session judge pronounced his verdict and held accused liable for
mentioned Sec..
• Now, being one of paramount Court for the justice appellant has approached this Court
within the Sec. of 374(2) and appealed this Court for giving him remedy by this essential
judicial mechanism and looking at crux Hon’ble Court has decided today to hear the appeal
from both the sides.

MEMORANDUM ON BEHALF OF THE RESPONDENT |3|

 ISSUES RAISED

ISSUE I

❖ WHETHER THIS AMOUNT’S TO BE MAINTAINABLE ?

ISSUE II

❖ WHETHER ACCUSED ACTIONS FALL UNDER PRE-PLANNED CONSPIRACY?

ISSUE III

❖ WHETHER JUDGMENT PASSED BY THE HON’BLE SESSION JUDGE WAS

ERRONEOUS AND IMPUGNED?

MEMORANDUM ON BEHALF OF THE RESPONDENT |4|

 SYNOPSIS OF ARGUMENT

ISSUE I

➢ WHETHER THIS APPEAL AMOUNT’S TO BE MAINTAINABLE?

✓ It is humbly submitted before this Hon’ble Court that the appeal which is filled before
this Hon’ble Court is pre-mature as the Ld. Hon’ble session judge already adjudicated
on the merits of evidence which were provided by the investigation authority.
✓ The Court must not only keep in view the rights of the criminal, but also the rights of
the victim of crime and the society at large while considering imposition of appropriate
punishment.
✓ Every person has a right to appeal but it doesn’t means that the appeal should be
granted on mere allegation, vexatious and frivolous contention against the Hon’ble
lower Court or investigation authority.

ISSUE II

➢ WHETHER ACCUSED ACTIONS FALL UNDER PRE-PLANNED

CONSPIRACY?

✓ It is humbly submitted before this Hon’ble Court that the accused filled this appeal
with an intention of forgiving him for the crime which he committed.
✓ After that he saw all of them running towards him and atul was behind sharad so he
removed his knife and he ran towards atul by trying to skip sharad but sharad was the
one of person who was holding lathi in his hand so seeing a threat towards atul he
knocked him before his execution which led accused Transfer of Malice i.e., from Atul
to Sharad.
✓ Now the transfer of Malice is also considered as an offence of killing under the ambit
of sec. 300 of IPC, so hereby it was proximate nexus that the crime was wholly
conspired and pre-determined by the accused for the execution.
✓ Now most essential thing that respondent submits before this Hon’ble Court that the
crime which he is alleged for was mere an execution of the pre-planned conspiracy

MEMORANDUM ON BEHALF OF THE RESPONDENT |5|

 against the complainant of FIR whose malice was transferred to the deceased i.e.,
complainant’s friend.

ISSUE III

➢ WHETHER JUDGMENT PASSED BY THE HON’BLE SESSION JUDGE

WAS ERRONEOUS AND IMPUGNED?

✓ It is humbly submitted before this Hon’ble Court that the learned session judge relied
on the merits and for the justice of deceased person whose right to life was snatched
up by the perpetrator with an intention to kill as miserable as he can.
✓ The judgment was erroneous because it was not with the order containing death
penalty because the learned Hon’ble Court looking at the merits and right to life of
accused, the judge passed the judgment of imprisonment of life only.
✓ The judgment was provided with the exact interpretation of Sec. 302, 506(2) r/w 135
of Bhimapura police Act.

MEMORANDUM ON BEHALF OF THE RESPONDENT |6|

 ARGUMENT ADVANCED
ISSUE I

❖ WHETHER THIS APPEAL AMOUNT’S TO BE MAINTAINABLE?

• It is humbly submitted before this Hon’ble Court that the learned Hon’ble judge relied with
the learned prosecutor because IPC Sec.302 clearly states that Punishment for murder:
Whoever commits murder shall be punished with death, or imprisonment for life, and shall
also be liable to fine.
• The murder is defined u/s 300 of IPC which reads as: Except in the cases hereinafter excepted,
culpable homicide is murder,
1) if the act by which the death is caused is done with the intention of causing death, or
2) 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
3) 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
4) 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.
• In the case of Dhananjay chaterjee v/s union of India1 wherein the Court said that the measures
of the punishment in the given case must depend on the atrocity of crime; the conduct of the
criminal and the defenseless and unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the Court responds to the society’s cry for justice against
the criminals. The Court should impose punishment befitting the crime so that the Court
reflects public abhorrence of the crime.
• The Court must not only keep in view the rights of the criminal, but also the rights of the
victim of crime and the society at large while considering imposition of appropriate
punishment.
Similarly, in Mahesh v/s State of Madhya Pradesh2, Which was a case of multiple murders
committed in a brutal manner, the apex Court said:

1
(1998) 4 SCC 456 (462)
2
(1987) 3 SCC 80 (82)
MEMORANDUM ON BEHALF OF THE RESPONDENT |7|
 • It will be a mockery of justice if appellants are permitted to escape the extreme penalty of law
when faced with such evidence and such cruel acts. To give a lesser punishment for the
appellants would be rendering the justicing system of this country suspect. The common man
will lose faith in Courts. In such cases he understands and appreciates the language of
deterrence more than the reformative jargon.
• The appeal if upheld by this Hon’ble Court, than it would be a failure of judicial mechanism
which ensures every citizen and every non-citizen i.e., protection by law. The appeal to this
Hon’ble Court is a mode for justice but in case if this appeal is upheld, then the victim of the
crime would be the only sufferer of this catastrophe and accused would be the most beneficial
of this crime with a reckon of this Court.
• Every appeal ensures the person that no one would be denial of justice but this appeal is baring
the rights of the deceased person which were ensured by the statue and are fundamental “LEX
LOCI” i.e., law of land.
• It is most humbly submitted before this Hon’ble Court that the appeal should be considered
frivolous and vexatious in nature and upheld the conviction which was pronounced by learned
city session judge under the Sec. of IPC 302,506(2) r/w Sec 135 of Bhimapura Police Act.

MEMORANDUM ON BEHALF OF THE RESPONDENT |8|

 ISSUE II

❖ WHETHER ACCUSED ACTIONS FALL UNDER PRE-PLANNED CONSPIRACY?

• It is humbly submitted before this Hon’ble Court that the appeal was raised by the appellant
for the sake of relief in the crime which he has with a full-fledged intention to kill someone
and escape without any liability.
• Before I move further respondent would like to bring the facts in the light of this Hon’ble
Court with the help of chronology of the circumstances:
• The accused after the altercation at factory premises went to take his father to his cousin
brothers home i.e., Atul’s place in the name of mediation and saying him “I will kill you”.
• When he saw that he and his father is surrounded by Atul’s friend and mother he left the
premises but with a carrying of vindictive thoughts.
• The thoughts were so blunt in the mind of accused which give rise to make a call to Atul and
to say him words which he was not able to say at his place but thinking of conciliation thoughts
atul invited him to meet at G10 mall after fifteen minutes.
• Finding which accused thought that the atul will come alone and it is the golden opportunity
to deceive him with a knife which is recognized as deadly weapon under the ambit of Sec.
2(c) “Arms” under Arms Act 1959.
• When accused reached at the place he saw Atul with his three friend namely recognized as
Sharad, Surya and Chandra carrying 2 lathi’s and a baseball bat which is not recognized as
deadly weapon under the ambit of Sec. 2(c) “Arms” under Arms Act 1959, and when the
accused looked them he thought that he missed his opportunity for killing the Atul.
• When he saw that atul and his friend are moving ahead towards him for mediation he thought
that they are likely to lynch him but after that he thought now in the name of self-defense I
can kill him but seeing atul coming he was silent the accused thought I should curse them and
run towards empty lane which is not used frequently by usual by pedestrian.
• After that he saw all of them running towards him and atul was behind sharad so he removed
his knife and he ran towards atul by trying to skip sharad but sharad was the one of person
who was holding lathi in his hand so seeing a threat towards atul he knocked him before his
execution which led accused Transfer of Malice i.e., from Atul to Sharad.
• Now the transfer of Malice is also considered as an offence of killing under the ambit of sec.
300 of IPC, so hereby it was proximate nexus that the crime was wholly conspired and pre-
determined by the accused for the execution.

MEMORANDUM ON BEHALF OF THE RESPONDENT |9|

 • As accused was neither in the scenario of sudden provocation or in the formation of self-
defense the exception of Sec. 300 of IPC doesn’t cover the accused actions as justifiable in
this case.
• For supporting my argument I would like to furnish the principles of sudden provocation
establish in the most well-known case of K.M. Nanavati v/s State of Maharastra3 so hereby
it is clearly proved that doctrine of provocation does not applies in this case:
• 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 the accused was placed,
would be so provoked as to lose his self-control.
• In India, words and gestures may also under certain circumstances, cause grave and sudden
provocation to an accused so as to bring his act within the first exception to Sec. 300 of the
Indian penal code.
• The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden provocation
for committing the offence; and
• 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
the accused room and scope for premeditation and calculation.
• The Court further said:
o What a reasonable man will do in certain circumstances depends upon the customs,
manners, way of life, traditional values, etc., in short, the cultural, social and emotional
background of the society to which an accused belongs. In our vast country there are
social groups ranging from the lowest to the highest state of civilization. It is neither
possible nor desirable to lay down any standard with precision; it is for the Court to
decide in each case, having regard to the relevant circumstances.
o The facts of the case present the common place problem of an alleged murder by an
enraged husband of a paramour of his wife, but it aroused considerable interest in the
public by reason of the publicity it received. The accused, a naval officer, was charged
with the murder of Prem Ahuja, businessman of Bombay, for having illicit intimacy
with his wife, Sylvia. On coming to know from his wife about the illicit relationship
with the deceased, he went to the ship, took from the stores a semi-automatic revolver
and six cartridges on a false pretext, loaded the same, went to flat of Ahuja entered in
his bedroom and shot him dead after a heated exchange of words.

3
AIR 1962 SC 605
MEMORANDUM ON BEHALF OF THE RESPONDENT | 10 |
 o While rejecting the plea of grave and sudden provocation advanced by the accused,
the Court held that for the application of exception 1 to Sec. 300, IPC, it is essential
that the act which caused death should have been done during the continuance of the
state of mind to temporary loss of self-control caused by the provocation, and before
there was time for passion to cool and for reason to regain dominion over the mind.
No doubt, accused momentarily lost self-control when his wife confessed to him her
illicit intimacy with the deceased, his subsequent conduct clearly indicated that he had
not only regained his self-control, but was capable of actually planning future action.
He drove his wife and children to a cinema, left them there, went to his ship, took a
revolver on a false pretext, loaded it with cartridges, did some official work, went to
the office of the victim and, not finding him there, went to his flat and straight into his
bedroom where he shot him dead.
o The time lapse between his leaving his house and the time of the murder was three
hours; this was sufficient time for passion to cool and for self-control to be regained,
even if he had not regained it earlier, i.e., during the time lapse between his wife’s
confession and putting his plan of action against the deceased into effect.
• Moving ahead, various cardinal principles were provided by apex Court for the Doctrine of
Self-Defence as stated below:
o In the case of Jaipal v/s State of Harayana4 the apex Court held that an aggressor
cannot claim the right of private defence. In the instant case the fact that the accused
person were armed with the dangerous weapons and no one from complainant party
was armed with any dangerous weapons shows that the accused party alone had the
intention to attack but not the complainant party. It is clear from the evidence that
accused no.1 gave gandasa blow to the deceased, which landed on head and the
second blow cut his finger and then accused nos. a-2 and a-3 dealt blows with their
lathis on vital parts. Under the circumstances, the apex Court while approving of the
high Court’s verdict held that the complainant was not the aggressor but the
appellants were aggressors. The appeal was accordingly dismissed. Burden of proof
of establishing self defense always lies on accused.
o So it is humbly submitted before this Hon’ble Court that the authorities cited are
clearly stating that onous of proof lies on the accused. Soon accused get remedy
against the action there will be chaos and mishap in the organised living fabric of
society. So hereby it is pleased before this Hon’ble Court that there is no room of
argument for the well settled case.

4
AIR,2000 SC 1271
MEMORANDUM ON BEHALF OF THE RESPONDENT | 11 |
 ISSUE III

❖ WHETHER JUDGMENT PASSED BY THE HON’BLE SESSION JUDGE WAS

ERRONEOUS AND IMPUGNED?

• It is humbly submitted before this Hon’ble Court that the judgement pronounced by
Learned Session Judge was within the terms and binding authorities provided by apex
Court in the Sec. of IPC 302, 506(2) r/w 135 of Bhimapura police act which clearly
states punishment for murder, criminal intimidation and mischief acts.
• The Hon’ble learned session judge relied on all the five eye-witnesses along with the
scientific methodology used for the examination of deceased which clearly states that
he died due to cardiac arrest which led by Lung Injury [the injury includes heavy blood
loss from wound and internal several damages to lung’s] through that the liability of
actions lies upon accused.
• The judgment was relied upon above mentioned witnesses and examination reports of
autopsy for the sake of Justice.
• It was alleged by the appellant that the learned session judge relied on the bias and
partial investigation authority while in the examination of investigation officer in the
trial it was found that knife was having blood stains which was same blood group and
with the same DNA of deceased.
• The investigation officer also presented that the recovery of materials used by victim
and his friends were properly scrutinized and no clue of assault stains were recovered.
With that the investigation officer also submitted that the victim and his friend were
not covered under the Sec. 141 of IPC or any other provisions of Statues in time force.
Further the material confiscated from the victim and his friend neither falls under the
ambit of Sec. 2(c) “Arms” under Arms Act 1959 nor under any other act.
• Further respondent most humbly submit that the accused actions were causing the
intention to kill was clearly ambit in Sec.302 and before that going home with his dad
and threatening to his own cousin was covered under Sec. 506(2) and disturbing the
public peace with actions was clearly under Sec. 135 of Bhimapura police act.
• Moving ahead respondent also submit before this Hon’ble Court that who was the
victim of the crime doesn’t matter the thing which only matters that It was a Crime
which were clearly stated in the following cases:

MEMORANDUM ON BEHALF OF THE RESPONDENT | 12 |

 • Balan v/s State of UP5 ballan was wanted in three dacoities, alleged to have been
committed by him; the house was besieged by the police to arrest him. Ballan was
hiding in a grain-bin. He was asked to come out. He did not. Instead, he fired at the
sub-inspector ram murti singh who ducked so as to avoid being hurt. Rajendra singh,
a constable who was standing behind the sub-inspector, was hit and died. Ballan was
convicted under Sec. 302 of the IPC read with Sec. 301, IPC for murder.
• Applying Sec. 301, IPC, the Court while dismissing the appeal against conviction,
held that the ‘intention of causing death’ is not to be interpreted as the ‘intention of
causing death of any particular person’.
• Moving ahead the Doctrine of Transfer of malice applied in the case in which a
person interfering in a dispute was killed by the bullet aimed at the another in the case
of Gyanendra Kumar v/s State of UP6 in a school committee meeting, b made remarks
that the father and the uncle of the accused were monopolising all seats of authority
and that they were dishonest. The accused, on hearing this, went to his house and
brought the gun. By that time the meeting had ended. The accused asked those who
were near B to move away so as to fire a shot at B. As soon as B started running to
save himself, the deceased who was the maternal uncle of the accused rushed towards
the accused in order to prevent him from using the gun. The accused, however, pushed
him back and fired at B. but the deceased came between the gun and B, and was shot
in the back and died.
• Held, the offence committed was murder under Sec. 302 read with Sec. 301, IPC and
not culpable homicide not amounting to murder under Sec. 304, part I of the IPC, as
the offence could not be attributed to any grave and sudden provocation. The appeal
was dismissed.
• Similarly Section 302 provides two alternative punishments for murder, viz., death
sentence or imprisonment for life. The legislature has left to the court to award the
appropriate punishment in a case of murder according to its wisdom. This provision is
highly controversial and criticized. It is said that the legislature has abdicated its
essential function in not providing by what legislative standards and in what case of
murder a judge should sentence an accused to life imprisonment, or to death. In the
case of Jagmohan singh vs. state of UP7, it was contended on behalf of the appellant
that the delegation of legislative power to the judge is vitiated by the vice of excessive
delegation and so it is ultra vires of the provisions of the constitution.

5
AIR 1955 ALL 626
6
AIR1972 SC 502
7
AIR 1973 SC 947
MEMORANDUM ON BEHALF OF THE RESPONDENT | 13 |
 • Rejecting the appellant’s contention, the supreme court held that the policy of the law
is as regards most crimes, to fix a maximum penalty, which is intended only for the
worst cases, and to leave to the discretion of the judge the determination of the extent
to which in a particular case the punishment awarded should approach to or recede
from the maximum limit. The exercise of this discretion is a matter of prudence and
not of law. The court held that judges have been carrying out this onerous duty under
the code very successfully for more than a century. The impossibility of laying down
standards is at the very core of the criminal law which invites judges with a very wide
discretion in the matter of fixing the quantum of punishment. The discrepancy in the
matter of a sentence is liable to be corrected by superior courts.
• Malempati pattabhi narendra v. Ghattamaneni Maruthi prasad8, the apex court held
that the conviction of the appellant(s) who had inflicted grievous injuries which
resulted in the death of the victim cannot be limited to section 326 (voluntary causing
grievous hurt by dangerous instruments) IPC but will be liable for murder under
section 302, IPC in which the deceased was killed brutally.
• So hereby in this appeal the grounds are invalidating in nature and bogus even just for
wasting the time of this Hon’ble Court of justice considering the authorities cited by
apex Courts clearly gives a limelight of justice under this case so the appeal should be
dismissed and upheld the conviction of the learned city session judge i.e., Sec302,
506(2) r/w sec. 135 of Bhimapura police act.

8
(2000) 5 SCC 226
MEMORANDUM ON BEHALF OF THE RESPONDENT | 14 |
 PRAYER

Wherefore in the light of argument advanced, authorities cited and facts mentioned, it
is humbly prayed that this Hon’ble Supreme Court that is may graciously be pleased
to:

1 Dismiss this instant appeal.

2 Declare that appeal on the ground of self-defence is not a valid ground
3 Declare that investigation was fair and justifiable
4 Declare that session judgment under the Sec. 302, 506(2) of IPC r/w 135 of bhimapura
police act was covering the actions of accused.
5 Declare that judgment passed by Hon’ble city session Court is not erroneous & having
impugning effect on accused.

In the alternative:

5 Pronounce the judgement by upholding the conviction order

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity

and Good Conscience

And for this, the respondent as in duty bound, shall humbly pray.

COUNSEL ON BEHALF OF RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT | 15 |