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TC611

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6 NMCC GITARATTAN INTERNATIONAL BUSINESS SCHOOL

BEFORE THE HON’BLE HIGH COURT OF MADHO PADESH

U/S 374 (2) r/w SECTION 386 (b) (i)

OF CODE OF CRIMINAL PROCEDURE, 1973

CASE NO. ****/2020

In the matter of
PRASHANT……………………………………………………. (APPELLANT)

Versus

STATE OF MADHO PADESH..……………………………. (RESPONDENT)

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUDGES OF THE HON’BLE HIGH COURT OF MADHO PADESH

~MEMORIAL ON BEHALF OF THE APPELLANT ~

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TABLE OF CONTENT

TABLE OF ABBREVIATIONS ........................................................................................... 3

INDEX OF AUTHORITIES .................................................................................................. 4

STATUTES ............................................................................................................................4
BOOKS .................................................................................................................................. 4
ONLINE DATABASE ........................................................................................................... 4

CASES REFERRED………………………………………………………………………...5

STATEMENT OF JURISDICTION ..................................................................................... 6

STATEMENT OF FACTS ..................................................................................................... 7

STATEMENT OF ISSUES .................................................................................................... 9

SUMMARY OF ARGUMENTS ..........................................................................................10

ARGUMENT ADVANCED ................................................................................................12

1. WHETHER THE PRESENT CRIMINAL APPEAL IS MAINTAIBALE BEFORE THE
HON’BLE HIGH COURT OF MADHO PADESH ? .....................................................12
[1.1] Error in the findings of the Trial Court. ........................................................................12
[1.2] Failure of the prosecution to prove the case beyond any reasonable doubt……………13
2. WHETHER THE ACCUSED CAN BE CHARGED U/S 302 OR SEC 304 OF THE
INDICAN PENAL CODE, 1860? ……….......................................................................15
[2.1] No case under Section 302 or section 304 is met out in the present case. ................... 15
[2.2] Cumulative Effect as to the Suicide Note, Witness Testimonies discarding the charge
of Murder or Culpable Homicide not amounting to Murder ................................................. 17
[2.3] Required degree of Mens Rea not present. ……………………................................... 18
3. WHETHER THE JUDGEMENT PRONOUNCED BY HON’BLE SESSIONS COURT
IS VALID? ..................................................................................................................... 20
[3.1] Culpable Negligence on the part of Appellant. ............................................................ 20
[3.2] Supremacy of Ocular Evidence in case of contradiction between statement of eye-
witness and forensic Evidence. ………………………............................................... 23
[3.3] Incomplete chain of events which leads to extension of Benefit of Doubt to Accused..24
PRAYER …………………………………………………………………………………..27

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TABLE OF ABBREVIATIONS

ABBREVIATION EXPLANATION

& And

¶ Paragraph

AIR All India Reporter

Art. Article

CriLJ Criminal Law Journal

CrPC. Code of Criminal Procedure

Etc. Etcetera

Govt. Government

Hon’ble Honourable

IEA Indian Evidence Act

IPC Indian Penal Code

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

U/S Under Section

UOI Union of India

vs. Versus

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INDEX OF AUTHORITIES

STATUTES
1. Code of Criminal Procedure,1973
2. Indian Penal Code, 1860
3. Indian Evidence Act. 1872
BOOKS
1. A. ASHWORTH, LOGIC, REASONING AND CRIMINAL LIABILITY (6 th Edition,
Oxford, 2009).
2. CECIL TURNER, KENNY‟S OUTLINES OF CRIMINAL LAW, (19th Edition, Universal,
2004).
3. DAVID ORMEROD, SMITH AND HOGAN CRIMINAL LAW, (15 th Edition, Oxford,
2018).
4. R. A. Duff, PHILOSOPHY AND THE CRIMINAL LAW: PRINCIPLE AND CRITIQUE
(1998).
5. I, NELSON R. A. INDIAN PENAL CODE, (10th Ed. 2008).
6. DINSHAW FARDUNJI MULLA, COMMENTARY ON THE CODE OF CRIMINAL
PROCEDURE (21st ed., Delhi Law House 2019).
7. DR. AVATAR SINGH, PRINCIPLES OF LAW OF EVIDENCE (23rd ed., Central Law
Publications 2018).
8. K.I. VIBHUTE, DD BASU, COMMENTARY ON CODE OF CRIMINAL PROCEDURE
(12th ed., Whyte & Co. 2016).
9. RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE (24th ed., LexisNexis 2016).

ONLINE DATABASE
1. HeinOnline
2. LexisNexis India (Advance)
3. Manupatra
4. SCC Online
5. Westlaw India & International
6. http://www.findlaw.com
7. http://www.judis.nic.in

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8. JSTOR

CASES REFERRED

 Abdul Kalam Musalman & Ors. vs State of Rajasthan, (2011) 4 RLW 3065………….19
 Andrews vs Director of Public Prosecutions, (1937) AC 576…………………………21
 Anvaruddin v. Shakoor, 1980 (3) SCC 266……………………………………………23
 Darbara Singh v. State of Punjab, (2012) 10 SCC 476………………………………..23
 Dhanapal vs State by Public Prosecutor (Madras), (2009) 10 SCC 401……………….13
 Empress vs Idu Beg, (1881) ILR 3. All 776……………………………………………16
 Gambhir v. State of Maharashtra, AIR 1982 SC 1157………………………………....14
 Gamini Bala Kateshwar Rao & Ors. vs . State of Andhra-Pradesh through Secretary,
(2009) 10 SCC 636…………………………………………………………………….13
 Gaya Din thr. Lrs. & Ors. vs Hanuman Prasad (D) thr. Lrs. & Ors., AIR 2001 SC
386…………………………………………………………………………………….13
 H.B. Gandhi & Ors. vs Gopi Nath & Sons, 1992 Suppl. (2) SCC 312…………………13
 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1……………………………………20
 Krishnan v. State by Inspector of Police, (2008) 15 SCC 430…………………………13
 Kuldeep Singh vs Commissioner of Police, AIR 1999 SC 677………………………..12
 Mahadev Prasad Kaushik vs State of U.P., (2008) 14 SCC 479………………………20
 Mulakh Raj vs Satish Kumar & Ors., 1992 SCR (2) 484………………………………14
 Prabhakaran vs State of Kerala, AIR 2007 SC 2376…………………………………..16
 Rajindra Kumar kindra vs Delhi Administration, AIR 1984 SC 1805…………………13
 Sing Terrang vs The State of Assam, AIRONLINE 2020 GAU 338………………….18
 State of U.P. v. Ashok Kumar Srivastava, 1992 Crl. LJ 1104…………………………14
 Surinder Pal Jain v. Delhi Administration, 1993 SCR (2) 226…………………………14
 Triveni Rubber & Plastics vs Collector of Central Excise, Cochin, AIR 1994 SC
1341…………………………………………………………………………………...13
 Virsa Singh v. State of Punjab, 1958 AIR 465…………………………………………17

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STATEMENT OF JURISDICTION

The Appellant has approached this Hon’ble High Court of Madho Padesh under Sec. 374 (2)1
r/w Sec. 386 (b) (i)2 of the Code of Criminal Procedure, 1973 against the order of conviction
and sentence of Life Imprisonment of the learned Sessions Court under Section 302 of the
Indian Penal Code, 1860. The counsel for the Appellants humbly submits this memorandum
of appeal before this Hon’ble High Court of Madho Padesh.

THE PRESENTED MEMORANDUM PUTS FORTH THE FACTS, CONTENTIONS

AND ARGUMENTS IN THE INSTANT CASE.

1
Section 374 (2) of the Code of Criminal Procedure Code, 1973- “Any person convicted on a trial held by a Sessions
Judge or 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.”
2
Section 386 (b) of the Code of Criminal Procedure, 1973- “in an appeal from a conviction – (i) Reverse the finding
and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction
subordinate to such Appellate Court or committed for trial.”

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STATEMENT OF FACTS

Background Of The Case

Kartik (Victim) is a 22-year-old man who lives with his sister Priyamana, brother-in-law
Prashant and niece Riya in Madho Padesh, Indica.
Accused In The Case
The accused in this case is Prashant who lives with his wife Priyamana, daughter Riya and
brother-in-law Kartik (victim) in ‘Paramount building’ in Madho Padesh. With the passage
of time both Riya and Kartik started liking each other but Priyamana did not approve of this
relationship and she sent Riya to United States on the pretext of higher studies.
The Day Of Incident
The unreasonable attitude of Priyamana for sending their daughter to United States led
Prashant to suspicion. On the fateful morning of 02/08/2020 from the reliable sources
Prashant got to know the fact that Kartik indeed, was the biological son of the Priyamana and
she had been hiding this throughout their marriage. On the same day at around 10:00 PM
both husband and wife were seen arguing with each other over Riya and Kartik. This was
heard by the neighbours and witnessed by a maid servant named Ms Suman in the house.
The maid servant has seen Mr Prashant holding a gun and threatening Priyamana that he is
going to kill her son and then her. Kartik was heard Prashant saying to Priyamana, “I am
going to shoot your son and then you”, for what you have done. Priyamana was constantly
holding the husband and crying and shouting to calm him. At 11.30 p.m. the servants heard
the gunshot with crackling sound of glass of the window. The watchman of the building had
noticed that Kartik’s body was lying on the ground in the ground floor of the building and he
was found dead.
FIR, Investigation And Arrest Of The Accused
On witnessing the dead body of Mr Kartik, the watchman had informed the building secretary
who rushed to the spot and immediately informed to the nearby police station. The Station
House Officer (SHO) after arriving to the crime scene, recovered the dead body which was
sent to the city government hospital for the post mortem and subsequently recorded the first
information report (FIR) based on the statement given by the secretary. On 3rd August, 2020,
the Investigation Officer (IO) appointed in this behalf, collected the details of the deceased
and his family from the building secretary. The crime scene was examined and Kartik’s
suicide note purportedly written by Kartik, was found in the 9th floor of the apartment from

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which he said to have allegedly committed suicide. It was written in the note that he was very
sorry for how he perceived Riya who was indeed his sister. He apologized his mother, who
strived to give him all the ambience he ever needed, and because of him her life is plundered
and he is committing suicide and felt sorry for the idea of killing his own mother. It was also
mentioned in the note, the fact of loading the revolver of Mr. Prashant with bullets in order
to kill her. After going through the suicide note, the Investigating Officer has inquired
Prashant, Priyamana and their maid, Ms Suman. The maid testified that she spotted Prashant
holding the gun and threatening his wife, following the gun sounds. From the statement of
the witness, on suspicion the Investigation Officer took Mr Prashant into custody and
confiscated the weapon (gun) for further investigation. As a matter of fact, the same revolver
loaded by Kartik was used by Mr Prashant on the night of August 2nd, 2020. The post mortem
report of Mr Kartik revealed that he was shot dead by the bullet injury. The forensic report
further confirmed that the bullet belongs to the Prashant’s gun matching with the his
fingerprints. There is also one Mr Vishal who is the resident of an opposite building, named
Dreamland, who came to his balcony to attend a call and spotted a person falling off from
the 9th floor of the Paramount building and rushed to inform to the watchman, which he later
came to know that it was Kartik.
Conviction By The Sessions Court
Based on this, the couple Prashant and Priyamana contended that Prashant has not murdered
Kartik. But the post-mortem report of the deceased showed that Kartik died due to a gun shot
and it was proved that the bullet belongs to the licensed gun of Prashant. The Sessions Court
came to the conclusion that the act amounts to murder and found Mr. Prashant guilty of the
same and convicted him and sentenced him to undergo Life Imprisonment for the offence of
murder under Section 302 of the Indican Penal Code, 1860.
Appeal In The High Court
Aggrieved by the decision of Sessions Court, Prashant & Priyamana filed a Criminal Appeal
before the Hon’ble High Court of Madho Padesh against the decision of Sessions Court and
posted for final hearing before a Bench of the Hon’ble High Court.

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STATEMENT OF ISSUES

ISSUE 1: WHETHER THE PRESENT CRIMINAL APPEAL IS MAINTAIBALE

BEFORE THE HON’BLE HIGH COURT OF MADHO PADESH ?

ISSUE 2: WHETHER THE ACCUSED CAN BE CHARGED U/S 302 OR SEC 304
OF THE INDICAN PENAL CODE, 1860?

ISSUE 3: WHETHER THE JUDGEMENT PRONOUNCED BY HON’BLE SESSIONS

COURT IS VALID?

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PRESENT CRIMINAL APPEAL IS MAINTAIBALE

BEFORE THE HON’BLE HIGH COURT OF MADHO PADESH ?

It is submitted before this hon’ble Court that the present criminal appeal is maintainable as [1.1]
There is no direct evidence in the present matter and the case squarely rests upon the
circumstantial evidence and in such situation the inference of guilt of the accused must be
established cogently, the Trial Court has made an error in appreciating the material on record
available from the law relating to the Circumstantial Evidence. [1.2] Prosecution is failed to
establish the guilt of accused beyond any reasonable doubt.

ISSUE 2: WHETHER THE ACCUSED CAN BE CHARGED U/S 302 OR SEC 304 OF
THE INDICAN PENAL CODE, 1860?

It is submitted before this hon’ble Court that no case under Section 302 or Section 304 of the
Indican Penal Code, 1860 can be met out in the present matter. The maximum charge under
which the accused can be made liable in the instant matter is under Section 304-A of the Indican
Penal Code, 1860.

ISSUE 3: WHETHER THE JUDGEMENT PRONOUNCED BY HON’BLE

SESSIONS COURT IS VALID?

It is humbly submitted before this hon’ble Court that the judgment pronounced by the Sessions
Court is not valid as [3.1] The Correct view of the law has not been taken in the present matter.
[3.2] Moreover, the chain of events in the present case are not so complete, which in turn,

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provides benefit of doubt to the accused and the contrary view as to the same has been taken by
the Hon’ble Sessions Court.

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ARGUMENT ADVANCED

1. WHETHER THE PRESENT CRIMINAL APPEAL IS MAINTAIBALE BEFORE

THE HON’BLE HIGH COURT OF MADHO PADESH ?

It is submitted before this hon’ble Court that the present criminal appeal is maintainable as [1.1]
There is no direct evidence in the present matter and the case squarely rests upon the circumstantial
evidence and in such situation the inference of guilt of the accused must be established cogently,
the Trial Court has made an error in appreciating the material on record available from the law
relating to the Circumstantial Evidence. [1.2] Prosecution is failed to establish the guilt of accused
beyond any reasonable doubt.

(1.1) Error in the Findings of the Trial Court: -

(1.1.1) It is submitted before this hon’ble Court that the judgment pronounced by the Sessions
Court is based on improper appreciation of evidence presented before it or thoroughly laid down
the view which contradicts the reasonable approach. The nature of judgment is such that no person
would act upon it, and in such cases the order would be perverse.

(1.1.2) In the case of “Kuldeep Singh v. Commissioner of Police”3, the hon’ble Supreme Court
held that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence
and no reasonable person would act upon it, the order would be perverse but if there is some
evidence on record which is acceptable and could be relied upon, the conclusion would not be
treated as perverse and the findings would not be interfered with.

(1.1.3) Furthermore, the findings of fact recorded by the Trial Court are perverse as the court have
arrived to the conclusion and such order is made by ignoring the relevant facts and in turn the court
has made such decision against the weight of evidence so produced. Moreover, the findings laid
down by the court also defects the logic and suffers from the vice of irrationality.

(1.1.4) In plethora of the cases, the hon’ble Supreme Court has laid down the elements in which
the judgment of lower court can be regarded as perverse in the nature. The Emphasis must be

3
Kuldeep Singh vs Commissioner of Police, AIR 1999 SC 677.

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placed to the case of “Rajinder Kumar Kindra v. Delhi Administration”4, “H.B. Gandhi & Ors.
v. Gopi Nath & Sons”5, “Triveni Rubber & Plastics v. Collector of Central Excise, Cochin”6,
“Gaya Din thr. Lrs. & Ors. v. Hanuman Prasad (D) thr. Lrs. & Ors.”7, “Gamini Bala Kateswara
Rao & Ors. v. State of Andhra-Pradesh through Secretary”. 8

(1.1.5) Thus, the law on this issue can be summarized to the effect that in exceptional cases where
there are compelling circumstances, and the judgment under appeal is found to be perverse, the
appellate court can interfere with the order of lower court. The Appellate Court shall bear in mind
the presumption of innocence against the accused. 9

(1.2) Failure of Prosecution to prove the case beyond any Reasonable Doubt: -

(1.2.1) It is submitted before this hon’ble court that the Apex Court in the case of “Krishnan v.
State by Inspector of Police”10, after considering the large number of earlier judgments observed
as follows: -

“This Court in a series of decisions has consistently held that when a case rests upon the
circumstantial evidence, such evidence must satisfy the following tests: -

(i)- The Circumstance from which an inference of guilt is sought to be drawn, must be cogently
and firmly aspect;

(ii)- Those Circumstances should be of definite tendency unerringly pointing towards the guilt of
the accused;

(iii)- The Circumstances taken cumulatively should form a chain so complete that there is no
escape from the conclusion that with all human probability the crime was committed by the
accused and none else; and

(iv)- The Circumstantial Evidence in order to sustain the conviction must be so complete and
incapable of explanation of any other hypothesis other than the guilt of accused and such evidence
should not only be consistent with the guilt of the accused but should be inconsistent with his

4
Rajinder Kumar Kindra vs Delhi Administration, AIR 1984 SC 1805
5
H.B. Gandhi & Ors. vs Gopi Nath & Sons, 1992 Suppl.(2) SCC 312.
6
Triveni Rubber & Plastics vs Collector of Central Excise, Cochin, AIR 1994 SC 1341.
7
Gaya Din thr. Lrs. & Ors. vs Hanuman Prasad (D) thr. Lrs. & Ors., AIR 2001 SC 386.
8
Gamini Bala Kateshwar Rao & Ors. vs State of A.P. through Secretary, (2009) 10 SCC 636.
9
Dhanapal vs State by Public Prosecutor (Madras), (2009) 10 SCC 401.
10
Krishnan vs State by Inspector of Police, (2008) 15 SCC 430.

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innocence. For the same the reliance must be placed on the decision of this Court on the case of
“Gambhir v. State of Maharashtra” 11.

(1.2.2) In another case of “Surinder Pal Jain v. Delhi Administration”12, the Hon’ble Supreme
Court held that, if the evidence in support of circumstance is found to be not reliable, the entire
chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution’s
case as a whole.

(1.2.3) The circumstances where the case rests squarely upon the circumstantial evidence the chain
of events should be so complete, that only one conclusion i.e., the accused alone committed the
ghostly offence of murder is established. 13

(1.2.4) Furthermore, in the case of “State of U.P. v. Ashok Kumar Srivastava”14, the Hon’ble
Supreme Court again reiterated the same view and contended that great care and caution must be
taken in evaluating the circumstantial evidence and if the evidence relied on is reasonably capable
of two inferences, the one in favour of the accused must be accepted. It was also pointed out that
the circumstance relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with single hypothesis of guilt of the
accused.

(1.2.5) It is also submitted before this hon’ble Court that in the instant matter chain of events are
not so complete and as a consequence of the same the guilt of the accused cannot be fully
established by the Prosecution (hereinafter referred as “Respondent”) which is ignored by the
Sessions Court. The Cumulative Effect of Witness Testimonies i.e., the Testimony of Priyamana
who is an eye-witness in the instant matter, the maid-servant, namely, Ms. Suman and the resident
of opposite building Mr. Vishal who saw deceased committing suicide clearly rules out the
possibility of Murder by the accused. The contrary view as to the evidence presented has been
taken by the Sessions Court in the present case. Thus, the said appeal is maintainable.

11
Gambhir vs State of Maharashtra, AIR 1982 SC 1157.
12
Surinder Pal Jain vs Delhi Administration, 1993 SCR (2) 226.
13
Mulakh Raj vs Satish Kumar & Ors., 1992 SCR (2) 484.
14
State of U.P. vs Ashok Kumar Srivastava, 1992 Crl. LJ 1104.

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2. WHETHER THE ACCUSED CAN BE CHARGED U/S 302 OR SEC 304 OF THE
INDICAN PENAL CODE, 1860?

It is submitted before this hon’ble Court that no case under Section 302 or Section 304 of the
Indican Penal Code, 1860 can be met out in the present matter. The maximum charge under which
the accused can be made liable in the instant matter is under Section 304-A of the Indican Penal
Code, 1860.

Sec 304 IPC, 1860, states that –

“Punishment for culpable homicide not amounting to murder.

Whoever commits culpable homicide not amounting to murder, shall be punished

with [imprisonment for life], or imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine,
or with both, if the act is done with the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely to cause death.”15

Sec 304A IPC, 1860, states that –

“Causing death by negligence.--Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both”.16

(2.1) No Case under Section 302 or Section 304 is met out in the present case: -

(2.1.1) It is submitted before this hon’ble Court that the prosecution (hereinafter referred as
“Respondent”) has failed to prove that the appellant had either any intention of causing the death
of the deceased or the intention of causing such bodily-injury to the deceased which is likely to
cause his death.

15
The Indian Penal Code, Act No. 45 of 1860, §304.
16
The Indian Penal Code, Act No. 45 of 1860, §304A.

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(2.1.2) Assuming that the appellant hold the gun in order to threaten his wife for the heinous act
that she has committed, he was not aware that the gun was loaded and the fact of gun being already
loaded by the deceased in order to kill the accused’s wife is also mentioned in the suicide which
is recovered during the course of investigation from the place where deceased resided. It was also
clearly mentioned in the recovered suicide-note that he (hereinafter referred to “Deceased”) has
loaded the gun and the same pistol was used by the accused in order to threaten his wife for
revealing the truth that she has been hiding from many years. Although, he was not that the change-
lever was not in a safety position, there is a culpable negligence on the part of the accused which
makes him liable for the lesser offence under Section 304-A of the Indican Penal Code, 1860.

(2.1.3) It is not possible to attribute knowledge to him that by his failure to have the knowledge
that the gun was already loaded by the deceased, he was likely to cause the death of the deceased,
he was likely to cause the death of the deceased. In fact, the appellant could not have imagined
that the deceased had access to his gun and would do anything like this. Thus, by no stretch of the
imagination, it is not a case of Culpable-Homicide or Murder as defined under Section 299 or
Section 300 of the Indican Penal Code, 1860 as the existence of none of the three ingredients
incorporated in the former or four ingredients entailed in the latter therein was proved by the
Prosecution i.e., Respondent in the instant matter.17

(2.1.4) However, there is a failure on the part of the appellant who was holding a sophisticated
weapon to ensure that the gun was not already loaded or change-lever was not in a state of safety.
Moreover, he was also not acquainted with the fact that the deceased had an access to his gun and
the same was earlier loaded by him but despite of this he was expected to take care which an
ordinary man of prudence would do, and as a consequence of the same the act of appellant becomes
chargeable under Section 304-A of IPC, 1860 and not Murder or Culpable-Homicide not
amounting to murder.

(2.1.5) This was the minimum care that he was expected to take while he approached his wife in
order to compel her for reveling the truth behind deceased’s true paternity. Thus, there is gross-
negligence as a matter of fact on the part of appellant which led to a loss of human life and makes
him guilty for a lesser-offence under Section 304-A IPC for which the maximum punishment is
imprisonment for two years.18

17
Prabhakaran vs State of Kerala, AIR 2007 SC 2376.
18
Empress vs Idu Beg, (1881) ILR 3. All 776.

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(2.2) Cumulative Effect as to the Suicide-Note, Witness Testimonies discarding the charge
of Murder or Culpable-Homicide not amounting to Murder: -

(2.2.1) It is submitted before this hon’ble court that the testimony as deposed by the appellant’s
wife, namely, Priyamanna cogently establishes that on the fateful day of incident i.e., 2 nd August,
2020 the appellant from his reliable sources came to know that the deceased is not the brother of
his wife but her biological son and the same led to a violent confrontation between both the
husband and wife.

(2.2.2) On the night of the date of the incident, at around 10pm they were seen arguing with each
other. In the meanwhile, the appellant tried to take out the truth from his wife’s mouth by
threatening her through his gun. The Testimony deposed by maid-servant Ms. Suman, explicitly
establishes that the accused was holding a gun in his hand and there was a heat-conversation
between both of them. It is also evident from the facts of the case that the appellant’s wife was
consistently crying and trying to calm the appellant. Later, as a consequence of this violent
confrontation during the course of retaliation the gun-shot taken place which broke the glass and
unfortunately hit the deceased who was within the close proximity of time when the gun-shot taken
place was witnessed falling and committing suicide by Mr. Vishal, a resident of opposite building.

(2.2.3) It is also submitted before this Court that the accused was in the company of his wife or
within the premises of his house at eight floor and has no access to the deceased during the entire
course of this incident. Furthermore, the testimony deposed by maid-servant Ms. Suman clearly
established that after the gun-shot, the accused was in the premises of his house. Thus, the
aforesaid testimony of two witnesses one of them being an eye-witness cannot be discarded and
suggests a single probability that the gun-shot was not intentional but accidental in nature, which
in turn, unfortunately lead to the death of the deceased. Thus, the present matter rules-out the
conditions as laid down under the Section 299 or Section 300 of the Indican Penal Code, 1860.

(2.2.4) furthermore, the suicide-note recovered from the house of the deceased during the course
of investigation also establishes that the deceased has a guilt of what he has done or how he
perceived the appellant’s daughter even after knowing the entire truth due to which he is
committing the suicide and the same is also corroborated by a witness, namely, Mr. Vishal who
saw deceased falling on the day of incident. The Post-Mortem and Forensic Report of the body
and gun reveals that the death of the deceased has been caused by the gun-shot and the bullet found
in the body of the deceased belongs to the gun of accused. The Findings of Post-mortem Report

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and Forensic Report along with the testimony of witnesses and suicide-note clearly prevails a
single possibility that the firing was accidental and the same caused the death of the deceased.

(2.3) Required Degree of Mens-Rea not present: -

(2.3.1) It is submitted before this hon’ble Court that the Supreme Court again reiterated the
principles laid down in the case of “Virsa Singh v. State of Punjab”19, while considering the scope
of clause (c) of Section 299 and clause 4 of Section 300 IPC, 1860 and held that the both requires
knowledge of probability of the act causing death. It is held that the Clause 4 of Section 300 IPC
will be applicable where the knowledge of the offender as to the probability of the death of a
person or persons in general as distinguished from a particular person or persons being caused
from his imminently dangerous act, approximately to a practical certainty. Such knowledge on the
part of the offender must be of the highest degree of the probability, the act having been committed
by the offender without any excuse for incurring the risk for causing death or such injury as
aforesaid.

(2.3.2) Furthermore, if the accused had the intention of killing the deceased, he would have gone
to the spot and someone might have saw him or been captured in the CCTV camera. This compels
to believe that he is free from the wrongful motive or intention. 20

(2.3.3) Although, the act committed by the accused in the instant matter i.e., holding the gun to
threaten his wife is unlawful, that after knowing the truth regarding deceased’s true paternity, he
got enraged and furious which led to a violent confrontation with his wife, and in the spur of the
moment, he used his gun to threaten his wife, which in turn, during the course of retaliation led to
a mishap or an unfortunate incident i.e., the accidental firing which caused the death of the
deceased, but this act doesn’t infer any motive or wrongful intention which can be attributed to
the requisite degree of Mens-Rea or Knowledge as prescribed under Section 299 or Section 300
IPC, 1860.

(2.3.4) The present facts and circumstances is also tailor suited for provisions under Section 299
of the IPC wherein illustration (c), is given hereinunder: -

“(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not
knowing that he was there. Here, although A was committing an unlawful act, he was not guilty of

19
Virsa Singh vs State of Punjab, 1958 AIR 465.
20
Sing Terrang vs The State of Assam, AIRONLINE 2020 GAU 338.

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culpable homicide, as he did not intend to kill B, or to cause death by committing an act that he
knew was likely to cause death.”2122

(2.3.5) The Counsel for Appellant also submits that in the present case, the appellant had no
intention or any pre-mediation to kill the deceased. He took gun in order to threaten his wife
for revealing the truth behind deceased’s true paternity and why he she has hiding all this
from him since many years. Moreover, the same led to a violent confrontation. Here appellant
intends to threaten his wife on the point of gun, which despite of being an unlawful act will
not make the accused liable for the Culpable-Homicide or Murder of the deceased. 23

21
The Indian Penal Code, Act No. 45 of 1860, §299.
22
Id. Note 19. at 18.
23
Id. Note 19. at 18.

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3. WHETHER THE JUDGEMENT PRONOUNCED BY HON’BLE SESSIONS

COURT IS VALID?

It is humbly submitted before this hon’ble Court that the judgment pronounced by the Sessions
Court is not valid as [3.1] The Correct view of the law has not been taken in the present matter.
[3.2] Moreover, the chain of events in the present case are not so complete, which in turn, provides
benefit of doubt to the accused and the contrary view as to the same has been taken by the Hon’ble
Sessions Court.

(3.1) Culpable Negligence on the part of Appellant: -

(3.1.1) It is submitted before this hon’ble Court that there is a clear-cut distinction between Section
302 or Section 304 and Section 304-A of the Indican Penal Code, 1860. Section 299 IPC defines
the term ‘Culpable-Homicide’ whereas Section 304 IPC deals with the punishment of the act
falling under the Section 299 IPC.

(3.1.2) Culpable-Homicide entails the existence of ‘intention’ and ‘knowledge’, whereas Section
304-A speaks of death by “Rashness and Negligence”. In the criminal jurisprudence, there is a
wide difference “Intention and Knowledge” and on the other hand, “Rashness and Negligence”.24
Although, the rashness contains an element of knowledge, but in rashness despite having
knowledge of the consequences, the act is still done. At worst, even if knowledge were to be
attributed to the petitioners, they may have had the knowledge of the consequences, but they have
ignored the consequences. Therefore, the case falls under the category of rashness. Hence in such
cases the accused is convicted under Section 304-A and not Section 304 IPC.

(3.1.3) Thirdly, Illustration “c” of Section 299 IPC clearly states that when “an act does not amount
to Culpable Homicide”. As per the said illustration, if the person intends to do a particular act,
while doing the act, unfortunately a death is caused, he can’t held chargeable for Culpable-
Homicide. 25 In the instant case, the appellant became familiar with the truth behind Kartik’s true
paternity, which in turn, after confronting the same from his wife led to a violent confrontation. In
the meanwhile, the accused take out his gun to threaten his wife so that she can reveal the entire
truth before him. During the spur of the moment, the confrontation became more severe. The wife
of appellant was consistently trying to calm her husband by shouting and crying, Moreover, during

24
Abdul Kalam Musalman & Ors. vs State of Rajasthan, (2011) 4 RLW 3065.
25
Id. Note 23, at 19.

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the course of retaliation the gun-shot took place accidentally which broke the glass and within the
close proximity of the time the deceased was witnessed committing suicide by Mr. Vishal. The
bullet which got fired accidentally from the pistol of appellant unfortunately hit the deceased and
he died.

(3.1.4) The Intention of appellant was not to kill the deceased but to compel her wife for revealing
the entire truth and such act will fall under the illustration ‘c’ of Section 299 IPC. Although, as a
matter of fact the suicide-note recovered from the residence of deceased clearly establishes that
the deceased had loaded the gun and the same pistol was used by the appellant on the day of
incident through which accidental firing took place.

(3.1.5) The Hon’ble Sessions Court has taken a wrong-view as to charging the appellant under
Section 302 of the Indican Penal Code, 1860. The Cumulative effect to the chain of events,
statement of witnesses, suicide-note recovered from the house of the deceased during thr course
of investigation proves that the appellant was not present in the company of the deceased and
present in the premises of his residence. The entire series of events or material-on-record available
in the instant matter establishes that although he was not aware with the fact of loaded gun, but he
was required to act in a manner which ordinarily a man of prudence would do. He was vested with
the duty of ensuring that the safety-lock of gun is not in harmful position. Thus, there is gross-
negligence on the part of the appellant which made him chargeable for a lesser offence under
Section 304-A IPC and not Section 302 or 304 IPC.

(3.1.6) The Term ‘Negligence’ has not been defined in the Indican Penal Code, 1860, it may be
stated that negligence is the omission to do something which a reasonable man, guided upon those
considerations which regulate the conduct of human-affairs would do, or doing something which
a reasonable and prudent man would not do.26 In the case of “Jacob Mathew v. State of Punjab”27,
the Hon’ble Supreme Court held that,

“While Negligence is an omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do, criminal negligence is the gross
and culpable neglect or failure to exercise that reasonable and proper care and caution to guard
against injury either to public generally or to an individual in particular, which have regard to all

26
Mahadev Prasad Kaushik vs State of U.P., (2008) 14 SCC 479.
27
Jacob Mathew vs State of Punjab, (2005) 6 SCC 1.

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circumstances out of which the charge has arisen, it was the imperative duty of the accused person
to have adopted. A “very high degree” of negligence is required in criminal cases.”

(3.1.7) The Aforesaid view has been reiterated by the Hon’ble Supreme Court in the case of
“Mahadev Prasad Kaushik v. State of Uttar-Pradesh”28. In another case of “Prabhakaran v.
State of Kerala”29, the Apex Court laid down the essential ingredients of Section 304-A IPC as
under: -

“5. Section 304-A speaks of causing death by negligence. This Section applies to rash and
negligent acts and doesn’t apply to cases where death has been voluntarily caused. This section
obviously doesn’t apply to cases where there is an intention to cause death or knowledge that the
death in all probability will cause death. It only applies to cases in which without any such
intention or knowledge death is caused by what is described as a rash and negligent act. A
negligent act is an act done without doing something which a reasonable man guided upon those
considerations which ordinarily regulate the conduct of human-affairs would do or act which a
prudent or reasonable man would not do in the circumstances attending it.”

(3.1.8) Negligence is the genes of which the rashness is the species. It has sometimes observed
that in rashness the action is done precipitately that the mischievous or illegal consequences may
fall, but with a hope that they will not.30 Section 304-A applies to cases where there is no intention
to cause death and no knowledge that the act done in all probability will cause death. The provision
is directed at offences outside the range of Section 299 and 300 IPC. Furthermore, the provision
only applies to such acts which are rash and negligent and are directly cause of another person.
Negligence and Rashness are essential elements under Section 304-A IPC.31

(3.1.9) Moreover, Culpable Negligence lies in the failure to exercise proper care and caution and
the extent of its reasonableness will always depend upon the circumstances of each case.
Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of
negligence are determining factors.32 A Bare perusal of illustration ‘c’ entailed down in Section
299 IPC does not deal with a conscious act to cause the death of a human being. According to
illustration ‘c’, the intention is to do a particular act, by which death of a human being would not
be caused but unfortunately death of a man still ensues. As per illustration ‘c’ causing of such a
death does not amounts to culpable homicide. Section 304-A IPC deals with causing of death not

28
Supra Note 25, at 20.
29
Supra Note 16, at 16.
30
Supra Note 26, at 20.
31
Supra Note 16, at 16.
32
Andrews vs Director of Public Prosecutions, (1937) AC 576.

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amounting to culpable homicide. Therefore, the illustration ‘c’ would have to be read in the context
of Section 304-A IPC.33

(3.1.10) In the case of Mahadev Prasad Kaushik 34 , the hon’ble SC has laid down the test of
motivating force. Therefore, this court is required to see what was the ‘motivating force’ in the
mind of the accused persons. When a person intends to do an act which unfortunately caused the
death of another person, such act is covered under sec 304A IPC and not under sec 304 IPC.

(3.1.11) Furthermore, sec 304A deals with homicidal death by rash or negligence act. It doesn’t
create a new offence. It is directed against the offences outside the range of sec 299 and 300 IPC
and covers those cases where death has been caused without ‘intention’ and ‘knowledge’. The
words ‘not amounting to Culpable Homicide’ in the provision are significant and clearly convey
that the sec seeks to embrace those cases where there is neither the intention to cause death nor the
knowledge that the act done will in all probability result into death. It applies to acts which are
rash or negligent and are directly the cause of death of another person.

(3.1.12) Thus, there is a distinction between Section 299, Section 304, Section 300, Section 302
and Section 304-A IPC. Section 304-A carves out cases where death is caused by rash or negligent
act which does not amounts to culpable homicide not amounting to murder or Murder. In other
words, Section 304-A excludes all the ingredients of Section 299 and Section 300 IPC.

33
Supra Note 23, at 19.
34
Supra Note 25, at 20.

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(3.2) Supremacy of Ocular Evidence in case of contradiction between statement of eye-

witness and forensic evidence: -

(3.2.1) It is further submitted before this hon’ble court that the Apex Court recently reaffirmed the
paramount importance of eye-witness accounts in criminal trials. The Emphasis may be placed on
the decision of the Supreme Court in the case of “Darbara Singh v. State of Punjab” 35 and
“Anvaruddin v. Shakoor”36 where the importance of ocular evidence was placed over the medical
evidence.

(3.2.3) In the case of “Darbara Singh v. State of Punjab” 37, the Hon’ble SC held as under: -

“…..so far as the question of inconsistency between the medical evidence and ocular evidence is
concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable
with the medical evidence, the oral evidence would have primacy. In the event of contradictions
between medical and ocular evidence, the ocular testimony of a witness will have a greater value
vis-à-vis medical evidence.”

(3.2.4) In the instant matter, the testimony of appellant’s wife, namely, Priyamanna, clearly
establishes that the accused was present within the vicinity of his house located at the eighth floor
of the building and was just holding the gun for compelling her to reveal the truth. Later on during
the course of such violent confrontation, the accidental firing took place which unfortunately hit
the deceased who was committing suicide within the close proximity of time when such accidental
gun-shot took place as witnessed by Mr. Vishal, a resident of opposite building.”

(3.2.5) The Testimony of Eye-witness, namely, Priyamanna clearly rules out the possibility of
Murder or Culpable-Homicide not amounting to Murder as defined under Section 300 and Section
299 IPC, 1860. It is finally submitted before this hon’ble Court that the Sessions Court has taken
a wrong view of the evidence-on-record and has ignored the testimony of appellant’s wife who is
an eye-witness in the instant matter. Furthermore, the testimony of the maid, namely, Ms. Suman
and the resident of opposite building, namely, Mr. Vishal has also been taken in correct
perspective. This, the judgment delivered by the Sessions Court is required to be stuck down.

35
Darbara Singh vs State of Punjab, (2012) 10 SCC 476.
36
Anvaruddin vs Shakoor, 1980 (3) SCC 266.
37
Supra Note 33, at 23.

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(3.3) Incomplete Chain of Events which leads to extension of Benefit of Doubt to Accused: -

(3.3.1) It is submitted before this hon’ble court that the Apex Court in the case of “Krishnan v.
State by Inspector of Police”38, after considering the large number of earlier judgments observed
as follows: -

“This Court in a series of decisions has consistently held that when a case rests upon the
circumstantial evidence, such evidence must satisfy the following tests: -

(i)- The Circumstance from which an inference of guilt is sought to be drawn, must be cogently
and firmly aspect;

(ii)- Those Circumstances should be of definite tendency unerringly pointing towards the guilt of
the accused;

(iii)- The Circumstances taken cumulatively should form a chain so complete that there is no
escape from the conclusion that with all human probability the crime was committed by the
accused and none else; and

(iv)- The Circumstantial Evidence in order to sustain the conviction must be so complete and
incapable of explanation of any other hypothesis other than the guilt of accused and such evidence
should not only be consistent with the guilt of the accused but should be inconsistent with his
innocence. For the same the reliance must be placed on the decision of this Court on the case of
“Gambhir v. State of Maharashtra” 39.

(3.3.2) In another case of “Surinder Pal Jain v. Delhi Administration”40, the Hon’ble Supreme
Court held that, if the evidence in support of circumstance is found to be not reliable, the entire
chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution’s
case as a whole.

(3.3.3) The circumstances where the case rests squarely upon the circumstantial evidence the chain
of events should be so complete, that only one conclusion i.e., the accused alone committed the
ghostly offence of murder is established.

(3.3.4) Furthermore, in the case of “State of U.P. v. Ashok Kumar Srivastava”41, the Hon’ble
Supreme Court again reiterated the same view and contended that great care and caution must be
taken in evaluating the circumstantial evidence and if the evidence relied on is reasonably capable

38
Supra Note 10, at 13.
39
Supra Note 11, at 14.
40
Supra Note 12, at 14.
41
Supra Note 14, at 14.

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of two inferences, the one in favour of the accused must be accepted. It was also pointed out that
the circumstance relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with single hypothesis of guilt of the
accused.

(3.3.5) It is also submitted before this hon’ble Court that in the instant matter chain of events
are not so complete and as a consequence of the same the guilt of the accused cannot be fully
established by the Prosecution (hereinafter referred as “Respondent”) which is ignored by
the Sessions Court. The Cumulative Effect of Witness Testimonies i.e., the Testimony of
Priyamana who is an eye-witness in the instant matter, the maid-servant, namely, Ms. Suman
and the resident of opposite building Mr. Vishal who saw deceased committing suicide
clearly rules out the possibility of Murder by the accused. The contrary view as to the
evidence presented has been taken by the Sessions Court in the present case. Thus, the said
appeal is maintainable.

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PRAYER

WHEREFORE IT IS PRAYED, IN LIGHT OF THE ISSUES RAISED, ARGUMENTS

ADVANCED, & AUTHORITIES CITED, THAT THIS HON'BLE HIGH COURT MAY
BE PLEASED TO HOLD:

1. That, the present criminal appeal is maintainable;

2. That, the appellant has not committed the offence u/s 302 & 304 of the Indican Penal
Code, 1860;
3. That, the appellant may be charged for lesser offence u/s 304A of the Indican Penal
Code, 1860.

AND/OR

PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT DEEMS FIT IN

THE INTEREST OF JUSTICE, EQUITY & GOOD CONSCIENCE. FOR THIS

ACT OF KINDNESS, THE APPELLANT SHALL

DUTY BOUND FOREVERPRAYS.

The Appellant

Sd/-

TC611

(Counsel for the “Appellant”)