IN THE COURT OF THE SESSIONS JUDGE AT GUWAHATI

A PETITION UNDER SECTION 177 READ WITH SECTION 28 OF CODE OF

CRIMINAL PROCEDURE 1973

CASE NO. ......... OF 23

IN THE MATTER OF

STATE ...................................................... PETITIONER/PROSECUTION

v.

MR. VINOD SHARMA ........................................................................... DEFENDANT

UPON SUBMISSION TO THE HONOURABLE SESSION JUDGE AND HIS COMPANION

JUDGES IN THE SESSION COURT OF GUWAHATI

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER/PROSECUTION

 Table of Contents

Table of Contents ................................................................................................................. i

List of Abbreviations ........................................................................................................... ii

Index of Authorities ........................................................................................................... iv

Statement of Jurisdiction ................................................................................................... vi

Statement of Facts ............................................................................................................. vii

Statement of Issues ........................................................................................................... viii

Summary of Arguments ..................................................................................................... ix

1. That Vinod did not act in Self-Defence when he allegedly stabbed Vijay with a knifeix

2. That Vinod did not have a reasonable apprehension of imminent danger that
justified the use of force ................................................................................................... ix

3. That Vinod used excessive force in self-defence, resulting in Vijay’s death .............. ix

4. That Vinod have a motive to kill Vijay due to professional rivalry ................................ x

Arguments Advanced .......................................................................................................... 1

I. That Vinod did not act in self-defence when he allegedly stabbed Vijay with a knife? .. 1

That there was no imminent danger caused by Vijay to Vinod’s life for causing death of
Vijay .............................................................................................................................. 1
That the defence failed to present any proof asserting that Vinod acted in self- defence . 3
That there is no evidence to prove who was the first aggressor ............................... 3
2. Did Vinod have a reasonable apprehension of imminent danger that justified the use
of force .............................................................................................................................. 4

That the prima facie cause of the aggression cannot justify the killing of Vijay by Vinod
in private defence .......................................................................................................... 5
3.That Vinod used excessive force in self defence, resulting in Vijay’s death ................... 6

That the accused is not entitled to the right of private defence rather is liable for
committing a punishable offence .................................................................................... 6
That the accused acted in retaliation and not in private defence.............................. 7
4. That Vinod had a motive to kill Vijay due to professional rivalry. .............................. 7

Prayer ................................................................................................................................. xi

i
MEMORIAL ON BEHALF OF THE PROSECUTION
 List of Abbreviations

S.NO ABBREBIATIONS EXPANSION

1 ¶¶¶ Paragraph/ Paragraphs

2 ALL Allahabad High Court

3 AIR All India Reporter

4 ANR Another

5 BOM Bombay

6 Cal Calcutta High Court

7 Cri Criminal

8 CriLJ Criminal law Journal

9 CrPc Criminal Procure Code

10 Del Delhi High Court

11 DW Defence Witness

12 Ed. Edition

13 Guj Gujarat High Court

14 Hon‟‟ble Honourable

15 ILR Indian Law Report

16 IPC Indian Penal Code

17 Ltd Limited

18 Mad Madras High Court

19 Ori Orissa High Court

20 ORS Others

21 P&H Punjab and Haryana High Court

22 Pat. Patna High Court

ii
MEMORIAL ON BEHALF OF THE PROSECUTION
23 PW Prosecution Witness

24 SlC Supreme Court

25 SCR Supreme Court Report

26 Sec Section

27 v. Versus

iii
MEMORIAL ON BEHALF OF THE PROSECUTION
 Index of Authorities

Statutes

The Code of Criminal Procedure, 1973

The Indian Evidence Act,1872
Indian Penal Code, 1860

List of Books

Sl No TITLE

1 K. I. VIBHUTE, PSA PILLAI'SCRIMINAL LAW (10TH

BUTTERWORTHS,2008). ED., LEXIS NEXIS

2 Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

3 RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE (30TH

EDITION, WADHWA ANDCOMPANY, 1896)

4 Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

5 Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

6 Harris, Criminal Law, (22nd Ed. 2000)

7 Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

8 Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

9 Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

10 Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)

11 Sarkar, Law of Evidence, (13th Ed,1990)

12 Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

iv
MEMORIAL ON BEHALF OF THE PROSECUTION
Table of Cases

CASE NAME CITATION

Balbir Singh Balwant Singh (1959) Pun 1473: 1959 Cri LJ 901 (Punj)
Yogendra Morarji AIR 1980 SC 660: 1980 Cri LJ 459 (SC): 1980 SCC
(Cri) 394
1
State Of U.P v Ram Swaroop and another 1974 AIR 1570, 1975 SCR (1) 409
1
Rizan and another v. State of Chhattisgarh JT 2003(2) SC 191

V. Subramani v. State of T.N 2005 SCC 2005 (Cri) 1525

Vishvas Aba Kurane v. State of 1978 SCC (Cri) 125.

Maharashtra
Biren Singh v. State of Bihar AIR 1975 SC 87

Emperor vs Mammun: AIR 1917 Lah 347

Onkarnath Singh & Ors. Vs The State of 1974 AIR 1550, 1975 SCR (1) 80

U.P
Extra Judicial Execution Victim Families WRIT PETITION (CRIMINAL) NO.129 OF 2012 SC,
para 118
Association V. Union of India
Laxminath v State of Chhattisgarh AIR 2009 SC 1383 : (2009) 3 SCC 519;
Budhi Lal v. State of Uttarakhand. Budhi Lal v. State of Uttarakhand.
Augustine Saldanha v. State of Karnataka (2003) 10 SCC 472
Sellamuthu v. State of T.N 1995 Cr.LJ 2143 (Mad)
Ramkripal v. State of M.P , 1995 Cr. LJ 1275 (MP)
Labhu Ram v. State of Punjab, 1996 Cr LJ 399
Mulakh Raj v. Satish Kumar AIR 1992 Supreme Court 1175, para 17

v
MEMORIAL ON BEHALF OF THE PROSECUTION
 Statement of Jurisdiction

The Hon‟ble Court has jurisdiction to try the instant matter under Section 177 read with
Section 28 of the Code of Criminal Procedure, 1973.

Section 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 28:

Section 28 in the Code of Criminal Procedure, 1973

“Sentences which High Courts and Sessions Judges may pass:

(1) A High Court may pass any sentence authorised by law;

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law;
but any sentence of death passed by any such Judge shall be subject to confirmation by the
High Court;

(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence
of death or of imprisonment for life or of imprisonment for a term exceeding ten years.”

vi
MEMORIAL ON BEHALF OF THE PROSECUTION
 Statement of Facts

1. That Vinod Sharma and Vijay Singh work in Auto Ancillaries company as a software
engineer located in Basistha Charali. Guwahati, India
2. That Vinod and Vijay had a heated argument in the office canteen during their lunch
break
3. That in past event also due to professional rivalry Vinod had threatened vijay and has
animosity toward Vijay
4. That according to Vinod, Vijay had been harassing him for several months by
spreading false rumours about him and undermining his work.
5. That on the day of incident, they had a heated arguments and Vijay allegedly
threatened Vinod with physical violence and Vinod, fearing for his life ,grabbed a
knife and stabbed Vijay when Vijay tried to attack him.

vii
MEMORIAL ON BEHALF OF THE PROSECUTION
 Statement of Issues

Did Vinod not act in self-defence when he allegedly stabbed with a knife?

Did Vinod have a reasonable apprehension of imminent danger that justified the use of
force?

Did Vinod use excessive force in self-defence, resulting in Vijay’s death?

Did Vinod have a motive to kill Vijay due to professional rivalry?

viii
MEMORIAL ON BEHALF OF THE PROSECUTION
 Summary of Arguments

1. That Vinod did not act in Self-Defence when he allegedly stabbed Vijay with a
knife

It is humbly submitted before the honourable Court that the accused did not act in self
defence when he stabbed Vijay with a knife and there was no imminent danger caused by
Vijay to Vinod‟s life for causing death of Vijay. The accused did not attack the deceased
following the heated argument. Moreover, he created an opportunity for himself and try to
give it a colour of self-defence and attacked the deceased with a knife using such force
sufficient to cause death just upon a mere heated argument, one which shows that he wanted
to ensure the death of the deceased. The accused had full intention of murder otherwise he
would have opted for another course or would have sought help from his co-worker.
Moreover, that the defence failed to present any proof asserting that Vinod acted in self-
defence

2. That Vinod did not have a reasonable apprehension of imminent danger that
justified the use of force.

It is humbly submitted before the honourable court that there was no reasonable apprehension
of imminent danger that justified the use of force as the circumstances were not such that
accused would have been held compelled to kill the deceased by knife. The mere possibility
of physical violence cannot justify the killing of deceased. The right of private defence is
restricted to not inflicting more harm than necessary for the purpose of defence. To determine
the amount of force, which was necessary to be inflicted, the facts and circumstances are
needed to be considered. There is no protection available in case the harm is inflicted
unnecessarily and is much extended than what was reasonable and, in this matter, using of
knife in a heated argument is unreasonable and is much extended than what was reasonable.

3. That Vinod used excessive force in self-defence, resulting in Vijay’s death

The petitioner humbly submits that the instant matter does not fall within the ambit of self-
defence so the question of using excessive force is not the subject matter. It was a
premeditated murder committed by the accused as the fact itself tells us that according to the
accused version the deceased was harassing him for several months by spreading false
rumours about him and undermining his work. This was the time when the accused gets his

ix
MEMORIAL ON BEHALF OF THE PROSECUTION
motive to kill the deceased and end his animosity of professional rivalry. The law ought that
the accused must have informed about such to the competent authority, but the deceased did
not do so instead he created an opportunity for him by involving the deceased in heated
argument and tried to give it the colour of self-defence in grave and sudden provocation.
Exception of Grave and Sudden Provocation will not apply in this case as the accused took
more than a month preparing the act of Murder which is sufficient time for person to take the
recourse of competent authority. Grave and sudden provocation Exception would have
applied if the accused would have acted at the same time when the deceased harassed him
several months before by spreading false news. As it was a calculated murder, he had the full
knowledge about what would be the impact of killing a person with a knife. Therefore,
attacking by knife in a mere heated argument ensures the death of the victim. Therefore, this
was a deliberate and premeditated attempt.

4. That Vinod have a motive to kill Vijay due to professional rivalry

It is humbly submitted before the hon‟ble court that indeed the accused has a motive to kill
Vijay as prima facie the facts itself speaks that the accused had a history of animosity towards
Vijay due to professional rivalry and had also threatened the deceased in the past.

x
MEMORIAL ON BEHALF OF THE PROSECUTION
 Arguments Advanced

I. That Vinod did not act in self-defence when he allegedly stabbed Vijay with a knife?

It is most humbly submitted before the Hon‟ble Court that Vinod had not acted in self-
defence, when he stabbed Vijay with a knife.

As the Sec 99 of the Indian Penal Code, 1860 (IPC hereinafter) lays down the condition and
limits within which the right of private defence can be exercised. The Section gives a
defensive right to a man and not an offensive right. That is to say, it does not arm a man with
fire and ammunition, but encourage him to help himself and others, if there is a reasonable
apprehension of danger to life and property. Clause 3 restricts the right of private defence if
there is time to seek help of public authorities. And the right must be exercised in proportion
to harm to be inflicted. In other words, there is no right of private defence:

1. Against the acts of a public servant; and

2. Against the acts of those acting under their authority or direction.
3. Where there is sufficient time for recourse to public authorities; and
4. The quantum of harm that may be caused shall in no case be in excess of harm that
may be necessary for the purpose of defence.

Since in the present case it was obvious that Vinod was in a public place during the time of
the incident and therefore, he could have opted for help from the public and also because
geographically the place is located in a city which also provides sufficient opportunity to take
recourse to the protection of public authorities including the nearby Police Station of the
locality. But Vinod did not opt for any of such recourse Thus, the plea of self-defence does
not hold well in the present case.

That there was no imminent danger caused by Vijay to Vinod’s life for causing death of
Vijay

It is humbly submitted before the Hon‟ble Court that Vijay never applied any such force that
could reasonably cause apprehension of imminent danger to Vinod‟s life. In the present case
it is stated that Vijay threatened Vinod with physical violence. As per Domestic Violence
Act, 2005, the act has also defined physical violence very comprehensively as: any act like

1
MEMORIAL ON BEHALF OF THE PROSECUTION
punch, slapping, any kind of bodily harm or injury or a threat of bodily harm and hitting. 1 But
a bare reading of this definition does not indicate any express threat to life. Therefore, Vijay
could not be assumed to have caused any reasonable apprehension of killing Vinod.

Further in the case of Balbir Singh Balwant Singh2 and Yogendra Morarji3, it has been
stated that there are Four cardinal conditions that must have existed before the taking of the
life of a person is justified on the plea of self-defence. Firstly, the accused must be free from
fault in bringing about the encounter; Secondly, there must be present impending peril to life
or of great bodily harm, either real or so apparent as to create honest belief of an existing
necessity; Thirdly, there must be no safe or reasonable mode of escape by retreat; and
fourthly, there must have been a necessity for taking life.

In the present case, it is prima-facie depicts that Vinod had animosity with Vijay and had
threatened him on the past, on the day of incidence, there was no impending peril to life or
great bodily harm due to mere heated argument or a mere physical violence, Vinod has
intentionally stab Vijay as he wanted him to be dead. Thirdly there were many safe or
reasonable modes of escape, as previously stated. Fourthly it is in no circumstance reasonable
to take a knife and use such excessive force causing death of a person where the other has just
exercised mere physical violence like punch, slapping, any kind of bodily harm or injury, A
threat of bodily harm and hitting.

Again in State Of U.P v Ram Swaroop and another4 it was emphasized that the right of
private defence in no case extends to the inflicting of more harm than it is necessary. It is a
well settled proposition of law that the force used in the exercise of self defence must be in
proportion to the force inflicted. In the present case there is no evidence that shows grave
medical injuries on Vinod‟s body which means that whatever Vijay did caused no serious
harm to Vinod at least in manner to the extent that Vinod should take a knife and stab Vijay.

1
Dr. G. Indira Priya Darshini & Dr. K. Uma Devi, “Domestic Violence Act- Fundamental Right” available at:
https://www.legalserviceindia.com/article/l353-Domestic-Violence-Act-Fundamental-rights.html (last visited on
May 30, 2023).
2
(1959) Pun 1473: 1959 Cri LJ 901 (Punj)
3
AIR 1980 SC 660: 1980 Cri LJ 459 (SC): 1980 SCC (Cri) 394
4
1974 AIR 1570, 1975 SCR (1) 409
2
MEMORIAL ON BEHALF OF THE PROSECUTION
 That the defence failed to present any proof asserting that Vinod acted in self-defence

It is humbly submitted before the Hon‟ble Court that there is no evidence produced to prove
that Vinod acted in self-defence while the burden of proof lies on the accused.

The Apex Court in the case of Rizan and another v. State of Chhattisgarh,5 held as below:
"Section 96 IPC provides that nothing is an offence which is done in the exercise of the right
of private defence. The Section does not define the expression `right of private defence'. It
merely indicates that nothing is an offence which is done in the exercise of such right.
Whether in a particular set of circumstances, a person acted in the exercise of the right of
private defence is a question of fact to be determined on the facts and circumstances of each
case. No test in the abstract for determining such a question can be laid down. In determining
this question of fact, the Court must consider all the surrounding circumstances. It is not
necessary for the accused to plead in so many words that he acted in self-defence. If the
circumstances show that the right of private defence was legitimately exercised, it is open to
the Court to consider such a plea. In a given case the Court can consider it even if the accused
has not taken it, if the same is available to be considered from the material on record. Under
section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets
off the plea of self-defence, and, in the absence of proof, it is not possible for the Court to
presume the truth of the plea of self-defence. The Court shall presume the absence of such
circumstances. Further in the case of, V. Subramani v. State of T.N,6 the Court said that the
right of private defence has to be pleaded and proved by the accused only.

In the present case the accused had not adduced any conclusive evidence to show that such
plea exists and neither able to show a preponderance of probabilities in favour of that plea on
the basis of material on record.

That there is no evidence to prove who was the first aggressor

It is humbly submitted before the Hon‟ble Court that the facts does not mention anything
about who first initiated the aggression neither the defence adduced any conclusive evidence
to proof that Vijay was the first to instigate Vinod nor there is any witness available to
corroborate that Vijay was the first to attack Vinod. And in Vishvas Aba Kurane v. State of

5
JT 2003(2) SC 191
6
2005 SCC 2005 (Cri) 1525
3
MEMORIAL ON BEHALF OF THE PROSECUTION
Maharashtra7, it was held that when both the parties are fighting and there is no evidence to
prove who assaulted first, no party is entitled to plead a right of private defence and each
party is liable for the actions caused by them.

2. Did Vinod have a reasonable apprehension of imminent danger that justified the use
of force.

It is humbly submitted before the Hon‟ble Court that there was no reasonable apprehension of
imminent danger that justified the use of force.

Section 100 of IPC says that a person can exercise his right of private defence against
another person only in certain circumstances and not otherwise. A person‟s right of private
defence can justify the killing of another person only if such another person causes a
reasonable apprehension of death which has not been caused by Vijay in the present case as
already established in the previous arguments; second such another person shall cause an
apprehension of grievous hurt which in the present case the accused has failed to establish
and the circumstances does not reveal the presence of any weapon of such nature in the hands
of victim that could necessarily create any apprehension of such grievous hurt in the
accused‟s mind; third if an assault is committed with the intention of committing rape which
in the present case cannot be justified to have existed due to both the accused and the victim
being from the same gender and also since nowhere in the facts such an assault has been
mentioned; fourth that if an assault is committed with the intention of gratifying unnatural
lust which in the present case the accused has failed to prove; fifth if the assault is caused
with the intention of kidnapping or abducting which in the present case cannot be presumed
from the circumstances; and sixth if the assault is caused with the intention wrongfully
confining a person, under circumstances which may reasonably cause him to apprehend that
he will be unable to have recourse to the public authorities for his release which in the present
case can also not be presumed since the entire incident occurred in the public place. Thus,
there appears no apprehension of imminent danger as per the law that justifies the use of
force on the part of the accused.

7
1978 SCC (Cri) 125.
4
MEMORIAL ON BEHALF OF THE PROSECUTION
That the prima facie cause of the aggression cannot justify the killing of Vijay by
Vinod in private defence

It is humbly submitted before the Hon‟ble Court that in the present case there exists no
sufficient reasons that could justify Vinod causing the death of Vijay in private defence due
to the lack of reasonable apprehension necessary under the law that could justify any use of
force for acting in self-defence.

In the case of Biren Singh v. State of Bihar8 the court has opined that in order to find whether
right of private defence is available or not, the injuries received by the accused, the
imminence of threat to his safety, the injuries caused by the accused and the circumstance
whether the accused had time to have recourse to public authorities and all relevant factors
are to be considered.

In this case the accused did not have a reasonable apprehension of imminent danger in a mere
heated argument at the time of the incident or when according to the accused version the
victim harassed him.

Further the right of private defence in no case extends to the inflicting of more harm than it is
necessary to inflict for the purpose of defence. As in the instant matter the incident occurs in
just a mere heated argument and mere physical violence which in no circumstances justify the
use of a knife for killing the victim.

Emperor v. Mammun9: The accused, five in number, went out on a moonlit night armed with
clubs, and assaulted a man who was cutting rice in their field. The man received six distinct
fractures of the skull-bones besides other wounds and died on the spot. The accused on being
charged with murder pleaded right of private defence of their property. Held under Section 99
there is no right of private defence in cases where there is time to have recourse to the
protection of the public authorities.

8
AIR 1975 SC 87
9
AIR 1917 Lah 347
5
MEMORIAL ON BEHALF OF THE PROSECUTION
3. That Vinod used excessive force in self defence, resulting in Vijay’s death

It is most humbly submitted before the Hon‟ble Court that the accused use excessive force in
self-defence, resulting in Vijay‟s death as the restriction provided under Section 99 of IPC
speaks that the right of private defence in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defence.

In Onkarnath Singh & Ors. Vs The State of U.P10, the Court held that the right of private
defence given by the penal code is essentially one of defence or self-protection and not the
right of reprisal or punishment. It is subjected to the restrictions indicated in Section 99,
which are as important as the right itself. One of them is that the harm inflicted in self-
defence must be no more than legitimately necessary for the purpose of defence.

In the present case a mere heated argument by Vijay with no weapons in hand and that also in
front of the public can never justify the accused‟s act in the name of private defence.

That the accused is not entitled to the right of private defence rather is liable for
committing a punishable offence

It is humbly submitted before the Hon‟ble Court that the accused is not entitled to any right
of private defence rather he has committed an act punishable under the law.

In the case of People's Union for Civil Liberties v. Union of India and Anr, the Hon‟ble Court
has expressed the view that it is abundantly clear that the right of self-defence or private
defence falls in one basket and use of excessive force or retaliatory force falls in another
basket. Therefore, while a victim of aggression has a right of private defence or self-defence
(recognized by Sections 96 to 106 of the IPC) if that victim exceeds the right of private
defence or self-defence by using excessive force or retaliatory measures, he then becomes an
aggressor and commits a punishable offence.

If the standards of the above case are compared with the circumstances of the present case
that it becomes clearly apparent that Vinod has used excessive force since the victim neither
had any weapons to cause any apprehension of death or grievous hurt to the accused not the
victim acted in an isolated place restricting the accused from accessing the recourse of public
authority. While on the other hand the accused was in a position sufficient enough to take any

10
1974 AIR 1550, 1975 SCR (1) 80
6
MEMORIAL ON BEHALF OF THE PROSECUTION
recourse other than applying the knife in such a manner that the victim could not survive the
injuries.

That the accused acted in retaliation and not in private defence

It is humbly submitted before the Hon‟ble Court that the accused acted in retaliation and not
in private defence and retaliation cannot be justified as a right.

In the case of Extra Judicial Execution Victim Families Association V. Union of India 11,
the Hon‟ble Court considered the distinction between the right of self-defence and use of
excessive force and held that the right of private defence is a right which extends only to
protect victims of unexpected aggression but not to justify retaliation. It is well established
that retaliation is not a right but a punishable offence.

In this case prima facie, it can be found that in a mere heated argument the accused person
used excessive force and stabbed the victim with a knife resulting in death and at the instance
the accused becomes an aggressor and commits a punishable offence. Moreover, the accused
didn't even take recourse to the protection of public authorities and hence for such acts of the
accused there is no right of private defence as provided by sec. 99 of IPC.

4. That Vinod had a motive to kill Vijay due to professional rivalry.

It is humbly submitted before the Hon‟ble Court that the accused do have a motive to kill
Vijay due to professional rivalry.

The existence of motive of the accused can be presumed and clearly established from the
following arguments.

Element of Mens Rea present in the act of the accused

Mens rea is some blameworthy mental condition. There must be a mind at fault to constitute
a crime. The act becomes criminal when the actor does it with a guilty mind. Causing injury
to an assailant in self-defence is not a crime, but the moment injury is caused with intent to
take revenge, the act becomes criminal12. In the present case, the accused had the Mens rea
which can be clearly drawn by his conduct. Mr Vinod had a history of animosity towards
Vijay due to professional rivalry and had threatened him in the past also this shows that due

11
WRIT PETITION (CRIMINAL) NO.129 OF 2012 SC, para 118
12
http://www.mcrhrdi.gov.in/drugs/week2/Iindian%20Penal%20Code.pdf
7
MEMORIAL ON BEHALF OF THE PROSECUTION
to professional rivalry he has a strong motive. If he had no intention to murder him then why
did he not inform the competent authority regarding the harassment, why did not he just
ignore Vijay during a heated argument, why did not he call his co-worker for help during
mere physical violence. His conduct clarifies that it was a premeditated and calculated
murder.

Clause (2) of S.300 can be where the assailant causes death by a first blow intentionally given
knowing that the victim is suffering from enlarged liver, or enlarged spleen or diseased heart
and such blow is likely to cause death of that person as a result of the rupture of the liver, or
spleen or the failure of the heart, the as may be. If the assailant had no such knowledge about
the disease or special frailty of the victim, nor an intention to cause death or bodily injury
sufficient in the ordinary course of nature to cause death, the offence will not be murder, even
if the injury which caused the death, was intentionally given. 13 But in the present case, the
accused had full knowledge and intention to ensure death of the victim. The accused in a
mere heated argument and mere physical violence picked the knife and stabbed him using
excessive force which guarantees that the accused wants him to be dead.

Clause (3) of S.300 is one of the degrees of probability of death resulting from the intended
bodily injury. The clause (B) of S.299 conveys the sense of „probable‟ as distinguished from
the mere possibility. The words „bodily injury……... ..sufficient in the ordinary course of
nature to cause „death‟ mean that death will be the most probable result of injury, having
regard to the ordinary course of nature. 14 The same matter is in the present case, the accused
had a calculated plan to murder the victim and knows the impact of using a knife with such
excessive force in such a place causing death. He could have stabbed anywhere else. But his
deeds show that he wants the man to be dead. Using a knife in such a manner and with such
excessive force results into the death of the person.

Clause (4) of S.300 would be applicable where the knowledge of the offender as to the
probability of death of the person in general as distinguished from a particular person or
persons being caused from his imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offender must be at the higher degree of

13
Ratanlal & Dhirajlal, The Indian Penal Code,34th Edition, pg 505
14
Supra note 13
8
MEMORIAL ON BEHALF OF THE PROSECUTION
probability, the act having been committed by the offender without any excuse for incurring
the risk of causing death or such injury as aforesaid.15

To prove whether the offence is “culpable homicide” or “murder”, it will be convenient to

approach the problem in three stages. The question to be considered at first stage would be,
whether the accused has done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused and the death leads to the
second stage for considering whether that act of the accused amounts to “culpable homicide”
as defined in S.299. If the answer to the question is prima facie found in the affirmative, the
stage for considering the operation of S.300, Penal Code, is reached. This is the stage at
which the court should determine whether the facts proved by the prosecution bring the case
within the ambit of any of the four clauses of the definition of murder, contained in section
300. If the answer to the question is negative the offence would be „culpable homicide not
amounting to murder‟, punishable under the first or the second part of the S.300, depending,
respectively, on whether the second or the third clause of S.299 is applicable. If this question
is found in the positive, but the case comes within any of the Exceptions enumerated in
S.300, the offence would still be „culpable homicide not amounting to murder‟, punishable
under the first part of S.304, Penal Code. 16 If all the stages are applied in this case, as there is
a death of a person so it satisfies the first stage. The connection between the accused and
deceased is established. It satisfies the second stage also. The third stage comes, the case does
not fall in any of the exceptions of S.300. so, it passes the third stage also. Thus, the accused
is guilty of murder under s.300 of IPC.

Infliction of stab injury on chest with a lethal weapon was held to be evidence of the intention
to cause death.17 Two deaths, mother, and son, by shot guns, accuse defence that accidental
shot killed both, it was absurd, intention to cause death was held and convicted.18 The
accused assaulted the deceased even when he fell, his intention to kill was clear and his
conviction for murder was held to be proper.19 In the present case, the weapon was a sharp
Knife which was a lethal weapon and use of such excessive force clarifies his intention to

15
Laxminath v State of Chhattisgarh, AIR 2009 SC 1383 : (2009) 3 SCC 519; Budhi Lal v. State of
Uttarakhand.AIR 2009 SC 87 (2008) 14 SCC 647; Augustine Saldanha v. State of Karnataka,(2003) 10 SCC
472
16
Ratanlal & Dhirajlal, The Indian Penal Code,34th Edition, pg 506
17
Sellamuthu v. State of T.N.,1995 Cr.LJ 2143 (Mad)
18
Ramkripal v. State of M.P ,1995 Cr. LJ 1275 (MP)
19
Labhu Ram v. State of Punjab,1996 Cr LJ 399
9
MEMORIAL ON BEHALF OF THE PROSECUTION
kill. Moreover, with respect to the motive, it is prima facie concluded from the facts of the
case that Vinod has a history of animosity towards Vijay due to professional rivalry and
before commission of such heinous crime the accused had threatened the victim in the past.

In the case of Mulakh Raj v. Satish Kumar20 in para 17 it is observed that the question then
is, who is the author of the murder ? The contention of Sri Lalit is that the respondent had no
motive and the High Court found as a fact that the evidence is not sufficient to establish
motive. The case is based on circumstantial evidence and motive being absent, the
prosecution failed to establish this important link in the chain of circumstances to connect the
accused. We find no force in the contention. Undoubtedly in cases of circumstantial evidence
motive bears important significance. Motive always locks up in the mind of the accused and
some time it is difficult to unlock. People do not act wholly without motive. The failure to
discover the motive of an offence does not signify its non-existence. The failure to prove
motive is not fatal as a matter of law. Proof of motive is never an indispensable for
conviction. When facts are clear it is immaterial that no motive has been proved. 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. However, in this
present case the prosecution has successfully establish the motive as Vinod had a history of
animosity towards vijay due to professional rivalry. Moreover, the Prosecution has well
established in this case that the use of force was excessive than it is necessary to inflict for the
purpose of defence as use of Knife for the reply of heated argument does not justify the act of
accused. If for instance the Hon‟ble courts presume that the act is justify, then from tomorrow
there will be a pool of blood in this court as the use of lethal weapon may be justified for the
heated argument and such view of court will let thousands of criminal free from their
criminal liability where the use of lethal weapon is justified in a mere heated argument.

20
AIR 1992 Supreme Court 1175, para 17
10

MEMORIAL ON BEHALF OF THE PROSECUTION

 Prayer

Whereof, it is prayed in the light of the issues raised, arguments advanced and authorities
cited, that the Hon‟ble Court may be pleased to hold:

That Vinod did not act in self-defence;

That Vinod dies not have a reasonable apprehension of imminent danger that justified the use
of force;
That Vinod did use excessive force in self-defence and the force was unreasonable;
That Vinod did have a motive to kill Vijay due to professional rivalry.

And pass any other Order, it may deem fit in the Best Interest of Justice, Fairness, Equity and
Good Conscience.

All of which is most humbly and respectfully submitted.

Place: S/D

Public Prosecutor

xi
MEMORIAL ON BEHALF OF THE PROSECUTION