Criminal Law Ta

8/8/2019 Criminal Law Ta

1/17

IN THE HONOURABLE HIGH COURT AT AHMEDABAD

ANITA

(APPELLANT)

V.

STATE OF GUJARAT

(RESPONDANT)

September 2010

Term Assignment II (Criminal Law)

MEMORIAL ON BEHALF THE APPELANT

Roll No.09BAL002

Roll No.09BAL035


2/17

P a g e | 2

2

TABLE OF CONTENTS

TITLE PAGE NO.

y List of Abbreviations 3

y Index of Authorities 4

y Statement of Jurisdiction 6

y Facts and Highlights 7

y Issues before the Court 8

y Summary of arguments 9

y Arguments Advanced 10

y Prayer 16


3/17

-Memorial on behalf of the APPELLANT-3

LIST OF ABBREVIATIONS

U/S Under section

AIR All India Reporter

IPC Indian Penal CodeCr LJ Criminal Law Journal

SC Supreme Court Of India

SCC Supreme Court Cases

HC High Court

Ed. Edition

Honble Honorable


4/17


INDEX OF AUTHORITIES

A CTS AND S TATUTES

y Criminal Procedure Code,1973

y I ndian Penal Code

y Criminal Law Journal

WEBSITES REFERRED

y www.manupatra.com last visited on 7 th september , 2010 y www.google.com last visited on 7 thseptember, 2010

y www.scjudgements.com last visited on 8 th september, 2010

y www.westlawinternational.com,last visited on 8 thseptember,2010

BOOKS REFERRED

1) NELSONS R.A., INDIAN PENAL CODE, VOLUME 3, LEXIS NEXIS BUTTERWORTHS

2) SARKAR S.C., THE CODE OF CRIMINAL PROCEDURE 1973 ED. 2007,

DWIVEDI LAW AGENCY, ALLAHABAD

3) KATHURIAS R.P., SUPREME COURT ON CRIMINAL LAW, ED. 6

4) SINGHAL M.L. & SABIHA, INDIAN PENAL CODE 1860, ED.2, PRIMIER

PUBLISHING COMPANY.

5) SARKARS COMMENTARY ON THE INDIAN PENAL CODE,1860 VOLUME-1,

DWIVEDI LAW AGENCY, ALLAHABAD

Papers and Jou rnals :-

y A ll I ndia Reporters

y S upreme Court Cases {digest }


5/17


Ju dicial D ecisi o ns

1. Akhtar v. State AIR1964All262

2. K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605

3. Prabhat singh Balu Vahsi Rathod Vs. State of Gujarat

4. R. v. Kiranjeet Ahluwalia

5. Girja Devi v. State of H.P.,2000 Cr LJ AT p. 1534(HP)

6. R v. Duffy ,(1949)1 AII ER 932 7. Atmaram Tilak Ram v. The State A.I.R. 1967 Pun 508


6/17


STATEMENT OF JURISDICTION

THE COUNS EL S R EP RE S E NTI NG THE APPELLANT HAVE E NDORS E D

THEI R PLEA DINGS B EF OR E THE HONBLE HIGH COURT OF GUJARAT

AT AHMEDABAD , UNDER SECTION 374 (2) OF THE CRIMINAL

PROCEDURE CODE 1973. THE APPELA NT F UR THE R SUBM IT THAT THI S

H ONBLE HI GH COUR T HA S JUR ISD ICTI ON T O D EAL W ITH THE

SUBJ E CT M ATTE R O F THE SU IT A S C A US E OF A CTI ON HA S A R IS E N

W ITHI N THE GUJ A R AT.


7/17


STATEMENT OF FACTS

I. Anita has been married to Aman for five years . Over the lastthree years, Aman has taken to going out drinking of an eveningand coming back late at night heavily drunk .

II. Anita frequently scolded him when he returned and told him shewould leave him if he did not mend his ways . Aman has a violenttemper and, on some occasions, he has hit Anita forcefully . Onother occasions, Aman has forced Anita to engage in sexualintercourse with him despite her protests . Anita recently soughthelp from a counselor who advised her to leave Aman .

III. T he next time Aman came home drunk, he staggered into thebedroom and Anita told him she was leving him the next day,whereupon Aman punched out at her several times, breakingsome of her teeth, cutting her lip and badly bruising her . Eventually, Aman went to sleep on the bed with Anita sobbing inthe corner of the room .

IV. S everal hours later, in the early hours and whilst Aman was stillasleep in a drunken stupor, Anita went downstairs and pouredherself a couple of large brandies . S he then went to the tool shedin the garden and took out large hammer . S he returned to thebedroom and hit Aman several times about the head, killinghim .

V. S he then calmly called the police and said: You had better comequickly- I have just murdered my husband .

VI. Anita was arrested and questioned the next day . S he made the

statement to the police. In the statement, Anita explained thatshe just could not take any morew and that she had told the

counselor that she would kill Aman if he ever hurt her again .


8/17


9/17


SUMMARY OF ARGUMENTS

1. W

HETHER THE APPELANT IS ENTITLED TO GET THEDEFENCE OF PROVOCATION.

Yes Anita is entitled to get the defense of provocation and thus should be

convicted under SECTION 304for culpable homicide not amounting to

murder.

Section 300 Exception I-When culpable homicide is not murder-Culpable

homicide is not murder if the offender, whilst deprived of the power of

self-control by grave and sudden provocation, causes the death of the

person who gave the provocation or causes the death of any other person

by mistake or accident.

The above exception is subject to the following provisos :--

First - That the provocations not sought or voluntarily provoked by the

offender as an excuse for killing or doing harm to any person.

Secondly -That the provocation is not given by anything done in obedience

to the law, or by a public servant in the lawful exercise of the powers of

such public servant.Thirdly -That the provocations not given by anything done in the lawful

exercise of the right of private defence.

Therefore u/s 300 exception 1, Anita is entitled for culpable homicide not

amounting to murder.


10/17


ARGUMENTS ADVANCED

1. W HETHER THE APPELANT IS ENTITLED TO GET THE

DEFENCE OF PROVOCATION OR NOT?

The council on b eha lf of t he appe ll ant submits b e for e t he honbl e hig h

court t ha t t he d e f ense of provoc ation is v alid which would m ake s t he

appe ll ant li abl e for cul pabl e homicid e not amounting to murd er und er S ec

304 of IPC.S ection 300 Exc eption I-W hen cul pabl e homicid e is not murd er-Cul pabl e

homicid e is not murd er if t he off end er, w hilst d eprived of t he power of

self-control by gr ave and sudd en provoc a tion, c ause s t he d ea t h of t he

person w ho g ave t he provoc ation or c ause s t he d ea t h of any ot her person

by mist ake or accid ent.

The above e xception is subj ect to t he following provisos:--

F irst - Tha t t he provoc ations not soug ht or volunt arily provo ked by t he

off end er a s an e xcuse for k illing or doing ha rm to any person.

S eco ndly -Tha t t he provoc ation is not giv en by anyt hing don e in ob edience

to t he l aw, or by a public s ervant in t he l awful e xercis e of t he powers of

suc h public s ervant.

Th irdly -Tha t t he provoc ations not giv en by anyt hing don e in t he l awful

e xercis e of t he rig ht of privat e d e f ence.

Ex pl anation-W het her t he provoc ation w a s gr ave and sudd en enoug h to

pr event t he off ence from amounting to murd er is a que stion of f act.

What is Provocation?


11/17


Provocation is an act or series of acts done by one person to another

which could cause in a reasonable person, 1 and actually cause in another,

a sudden and temporary loss of self control, rendering him so subject to

passion as to make him for the moment not master of his conductActsmay readily amount to provocation, or a series of affronts, or even

words. 2

Two important ingredients of provocation:

- Loss of self control

- Grave and sudden

In the case in question, Aman (the deceased) over the last three yearscame late in the night heavily drunk and harassed the appellant physically,

sexually and mentally. The facts clearly state that the deceased had a

violent temper, which implies that the appellant was physically abused in

her daily life. The deceased also forced the appellant to engage in sexual

intercourse with him despite her protests. From this behavior of the

deceased it is easy to infer about the mental agony from which the

appellant was going through.

In one case where the deceased-husband was somewhat of a pervert in his

sexual habit and wanted to satisfy his perverted lust on his helpless wife

thereby forcing her to commit him to death under grave and sudden

provocation , the accused was held liable to be convicted under Section

304, Part 1 instead of Section 302,IPC. 3

1 40 CrLJ 778: AIR 1939 Sind 182: 183 IC 3892 Walker: Oxford Companion to law, edn. 1980,p.1011,per Goddard C.J. in R v. Duffy ,(1949)1 AII ER 9323 Girja Devi v. State of H.P.,2000 Cr LJ AT p. 1534(HP).


12/17


Therefore Anita lost her self control on the day of commission of the

crime when Aman came home heavily drunk and punched Anita several

times, giving her grievous hurt. All these acts of the deceased could be

taken as grave provocation.

It has been held in a case;

that once if the power of self control has been lost it would be

unreasonable futile to expect one to retain such a degree of control over

himself as to exercise a choice over the weapon used by him for an attack

or to show his "mode of resentment" to bore "a reasonable relationship to

the provocation". 4

Therefore Anita in the case cannot be expected to choose a weapon and

then show her resentment as she had lost her self control and her act of

taking a hammer and beating the deceased to death was done when she

had no control on her acts.

Sudden provocation.The trial court did not consider the defense of provocation due to the

cooling off period but it has been observed in several cases that:

Whether the accused has got a cooling off period depends upon the facts

and circumstances of the case and whether the time between the

provocation and the crime would cool off a reasonable person in the

circumstances under a case.

It was observed in another case:

4 Akhtar v.state AIR1964All262


13/17


The impact of provocation on human frailty is to be judged in the context

of the social position and environments of the person concerned. 5

In the case Anita could not be expected to act immediately when she was provoked as after years of torture and blows to her dignity and esteem her

social position was deteoriated to such an extent that her husband gave her

grievous hurts instead of requesting her to stay with him when she told

him that she would leave him. So it is clear that she obviously did not

have the social position and physical strength, therefore she acted after

some time when she was in a position to act. Moreover she cannot be

expected to cool down keeping in view the environment under which she

was tortured, where she could constantly see her husband who before had

just given her grievous hurts including breaking some of her teeth, cutting

her lip and giving her several bruises and who had also harassed her

mentally, physically and sexually for three long years.

It was held in one more case 6 that;

Once an offence is committed in loss of self-control, emanated out of

grave and sudden provocation at the instance of the victim of the attack, itwould fall and embrace the statutory benefit incorporated in Exception 1

to Section 300 of IPC. Of course, deprivation of self-control by a victim

on account of sudden and grave provocation at the instance of the victim

does not obliterate the character of an offence, but it would change the

type of punishment and the nature of offence from murder simpliciter to

culpable homicide not amounting to murder. Thus, the sudden and grave

provocation resulting into loss of self-control of an individual will be a

mitigating and extenuating factor which would convert the murder into a

manslaughter simpliciter or culpable homicide not amounting to murder.

5 Atmaram Tilak Ram v. The State A.I.R. 1967 Pun 508 6 Prabhat singh Balu Vahsi Rathod Vs. State of Gujarat


14/17


In any case, provocation must be the cause and not an excuse for the

crime. Vindictive act or preparation and pre-meditation are excluded as

they are acts inconsistent with the assumption of loss of self-control.

Whether provocation was grave and sudden enough to prevent crime fromamounting to murder is a question of fact. However, one thing is certain

that an act which is sudden and in the heat of moment caused by

provocation or it is done impulsively and at a time there is temporary

suspension of reason, generator or contributor of which is the victim, then,

in that case, benefit is available. The Court has to see as to whether the

accused has acted under grave and sudden provocation and whether the

provocation at the instance of the victim was in the circumstances of the

case, likely for a normal and reasonable person to lose self-control to the

extent of inflicting injury or injuries that he did inflict and while

determining whether the provocation was of that character one should take

into account the condition of mind in which the offender was at the time

of provocation.

Now it is very obvious from the very facts of the case that there is grave

provocation as Aman used to torture her from past three years and used todo cruelty, marital rape.

A very similar case is found in common law with reference to our case 7:

Kiranjit Ahluwalia entered into an arranged marriage and suffered years of

abuse from her husband. In May 1989 she threw petrol into his bedroom

and set it alight. Her husband died six days later of his burns. She was

convicted of murder on 7 December 1989 and appealed against her

conviction. The conviction was quashed.

7 R. v. kiranjeet ahluwalia


15/17


The case has wider significance in relation to the use of provocation pleas

based on battered woman syndrome, and the seeming tendency to prefer a

plea of diminished responsibility where a woman is involved. Despite the

role of Southall Black Sisters in bringing this case to appeal, culturalissues play no explicit part in the judgement. But where the direction at

the original trial tended to minimise the vulnerability of the defendant, the

judgement at the Court of Appeal stressed her physical slightness, state of

humiliation, and loss of self-esteem, and noted that she remained in an

abusive marriage because of her sense of duty as a wife

Hence, the council on behalf of the Appellant would humbly like to

submit before this Honorable Court that the appellant is entitled to get thedefense of provocation (Grave and Sudden) which makes him guilty for

culpable homicide not amounting to murder and not murder


16/17


PRAYER

Wherefore in the light of the issue raised, argument advanced and

authorities cited above, it is humbly prayed that this Honble Court may

graciously be pleased:

To pass a decree in fav ou r o f the A ppellant i .e . A nita helding the defense o f

pr o vo cati o n valid which w ou ld lead t o cu lpable h om icide n o t a mou nting t o

mu rder .

Fu rther be pleased t o red u ce the p u nish m ent o f the appellant pr o vided U/S

304 o f Indian P enal C o de f o r c u lpable h om icide n o t a mou nting t o mu rder .

Or pass any su

ch f u

rther o

rder(s) in the favou

r o

f the A

ppellant as itm

aydee m fit.

A ND F OR THI S A CT OF KINDNE SS O F YOUR LORDS HIP S Appellant

S HALL A S DU T YBOUND EVE R P R A Y

All of which is respectfully submitted

Sd /- ______________________

Counsels for Appellant

Place: The Honble High Court of Gujarat


17/17


Date post:	29-May-2018
Category:	Documents
Upload:	ayush-yadav
View:	216 times
Download:	0 times

Criminal Law Ta

Documents