PRIYANKA VYAS

1313

IN THE HONORABLE SESSIONS COURT OF XYZ

IN THE MATTER OF:

ARMAAN MALLIK

Prosecution

v.

RIDHIMA GUPTA

Defense

MEMORIAL ON BEHALF OF THE DEFENSE

Table of Contents

TABLE OF CONTENTs

LIST OF ABBREVIATIONS ....................................................................................................... i

INDEX OF AUTHORITIES ........................................................................................................ ii

TABLE OF CASES...................................................................................................................... iii

STATEMENT OF JURISDICTION .......................................................................................... iv

ISSUES RAISED........................................................................................................................... v

STATEMENT OF FACTS .......................................................................................................... vi

SUMMARY OF PLEADINGS .................................................................................................. vii

WRITTEN PLEADINGS .......................................................................................................... 1-7

CONTENTION 1: THAT THE ACCUSED IS NOT GUILTY u/s 302 OF THE IPC .............. 1

1.1: THAT THE ACCUSED ACTED UNDER PRIVATE DEFENSE…...…4

PRAYER ..................................................................................................................................... viii

MEMORIAL ON BEHALF OF THE DEFENSE

List of Abbreviation i

LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Cal Calcutta

Cri Criminal

CrLJ Criminal Law Journal

Ed. Edition

Govt. Government

HC High Court

Hon’ble Honorable

IPC Indian Penal Code

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

U.P. Uttar Pradesh

u/s Under section

v. Versus

MEMORIAL ON BEHALF OF THE DEFENSE

Index of Authorities ii

INDEX OF AUTHORITIES

TABLE OF STATUTES

 The Indian penal code, 1860

 The Code of Criminal Procedure, 1973

BOOKS

Dr. Hari Singh Gour’s Penal Law of India, 11th Ed., vol. 4
K.D. Gaur Commentary on the IPC, Second edition

Prof. S.N Misra Indian penal code

Ratanlal & Dhirajlal Code of Criminal Procedure, 15th Ed.
Ratanlal and Dhirajlal Indian Penal Code, 32nd Ed., 2010
Surendra Malik Supreme court on Criminal Procedure Code &
Criminal Trial, Vol. 3

LEXICONS:

 BLACKS LAW LEXICON, 7TH ED. 1999

 OXFORD DICTIONARY, 8TH ED.

 BLACK’S LAW DICTIONARY, 8TH EDITION

 WHARTON’S LAW LEXICON, 15TH EDITION

MEMORIAL ON BEHALF OF THE DEFENSE

Table of Cases iii

TABLE OF CASES

1. Bikram Singh v. Emperor, A.I.R. !929 All. 535.

2. Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563.
3. Ghulam Hyder Inram Baksh v. Emperor, A.I.R. 1938 Sind 63.
4. Ghurey v. Rex. A.I.R. 1949 All. 342.
5. Gurmail Singh v. State of Punjab, 1982 Cr.L..J 1946.
6. Jadumani Parikha v. State, A.I.R. 1958 Orissa 113.
7. Jagrup Singh v. State of Haryana A.I.R. 1981 S.C. 1552.
8. Manzoor v. State of Uttar Pradesh, 1983 Cr.L..J. 441.
9. On Shwe Kalaw v. Emperor, I.L.R. 1 Rang. 436.
10. Parichatt v. State of Madhya Pradesh, A.I.R. 1972 S.C. 535.
11. Ranjit Singh v. State, 1965 P.L.R. 1175.

MEMORIAL ON BEHALF OF THE DEFENSE

Statement of Jurisdiction iv

STATEMENT OF JURISDICTION

THE DEFENSE HAS APPROACHED THE HON’BLE SESSIONS COURT OF XYZ UNDER
SECTION 1771 READ WITH SCHEDULE ‘I’ OF THE CODE OF CRIMINAL PROCEDURE,
1973.

1
SECTION 177 OF CRIMINAL PROCEDURE CODE, 1973: 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.
MEMORIAL ON BEHALF OF THE DEFENSE
Issues Raised v

ISSUES RAISED

1. WHETHER OR NOT THE ACCUSED IS GUILTY U/S 302 OF THE INDIAN PENAL
CODE.
1.1 WHETHER OR NOT THE ACCUSED ACTED UNDER PRIVATE DEFENSE.

MEMORIAL ON BEHALF OF THE DEFENSE

Statement of Facts vi

STATEMENT OF FACTS

1. Armaan Mallik and Ridhima Gupta are students of CBIT Engineering College, Delhi.
They are pursuing their II year. Armaan is a very boisterous person and a known
prankster. He once set off fire crackers in the class when the lecturer was teaching.
Ridhima, on the other hand, is an introvert and is known to have temper issues.
2. Armaan always used to tease Ridhima, who was obese, and would refer to her as a
moti bhains. He spread rumors about Ridhima saying that she is a drug addict. On one
occasion, she lost her temper and slapped Armaan too. From then on, she made the
fact that she hated him known explicitly.
3. On 5th November 2012, at around 5:45 pm, Armaan texted Ridhima from her friend
and classmate’s phone asking her to come to the college auditorium immediately to
talk about something very important. Ridhima rushed to the auditorium and on
reaching, she found it empty. As soon as she entered, at around 6:00 pm, Armaan
turned off all the lights, cut off the power supply and locked the auditorium from
outside.
4. Ridhima panicked and started banging at the doors. She cried for help and ran around
looking for an exit. She remained in that state for about half an hour. At around 6:30
pm, on hearing someone at the door, she hid behind it, holding a wooden stick she
found in the auditorium. As soon as Armaan entered, she administered a blow on his
head from behind with that stick.
5. Soon after Armaan collapsed, she dropped the stick, ran out and locked the door from
outside. The CCTV footage obtained from the camera positioned outside the
auditorium, towards the entrance, clearly captured Ridhima entering. Armaan
entering and thereafter, Ridhima leaving.
6. The wooden rod used was recovered from the garbage bin nearby. Ridhima’s friends
stated that on finding her nervous, they questioned her persistently about what was
wrong. However, they said, she refused to answer, took a tranquilizer and went to
sleep.
7. On 6th November, at around 8:00 pm, Armaan Mallik was found lying in a pool of
blood in the auditorium by a group of students. According to the post mortem report,
he gradually bled to his death due to the wound at the back of his head.
MEMORIAL ON BEHALF OF THE DEFENSE
Summary of Pleadings vii

SUMMARY OF PLEADINGS

THAT THE ACCUSED IS NOT GUILTY u/s 302 OF THE IPC

The Accused, Ridhima Gupta, in the pertinent case, had no intention of causing the death of the
deceased, Armaan Mallik. On the day of the incident, the deceased locked the accused in the
auditorium, and cut of the power supply, where she was under constant fear for half an hour. In
earlier circumstances as well the deceased, who is known to be a prankster, had teased the
accused of being a moti bhains and spread rumours about her being a drug addict. Thereby,
provoking the accused to take severe steps to control the situation. On the said day, the accused
acting under self-defense picked up a wooden stick and hit the deceased from the back.
However, the accused had no intention or knowledge that such an act of hers would prove to be
so fatal thereby causing death of the deceased. Hence, the accused should not be held guilty u/s
302 of the Indian Penal Code.

MEMORIAL ON BEHALF OF THE DEFENSE

Written Pleadings 1

WRITTEN PLEADINGS

CONTENTION 1: THAT THE ACCUSED IS NOT GUILTY U/S 302 OF THE IPC

It is humbly submitted before this Hon’ble Court that Ridhima Gupta (henceforth referred to as
the Accused) is not guilty u/ s 302 of the IPC for charges against her of murdering Armaan
Mallick (henceforth referred to as the Deceased).

The offence of murder is covered under Section 300 of the IPC which states that,

“Except in the cases hereinafter excepted, culpable homicide2 is murder, if the act by
which the death is caused is done with the intention of causing death, or--

Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom the harm is caused, or—

Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must,
in all probability, cause death or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or such injury as aforesaid.”

The first clause says that culpable homicide is murder if the act by which death is caused is done
with the intention of causing death. A question of intention is a question of fact. But in a case of
murder, where intention is one of the essential elements of a murder, it is always necessary that
there should be a definite finding as to whether the necessary guilty intention is or is not present,
and when it is reasonably doubtful upon the evidence of the prosecution whether this intention is
present, then the accused is entitled to the benefit of that reasonable doubt.3

Under clause (2) of the said section, there is first the intention of causing bodily harm and next
there is subjective knowledge that death will be the likely consequence of the intended injury.

2
Section 299: Culpable Homicide-Whoever causes death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such
act to cause death, commits the offence of culpable homicide.
3
Ghulam Hyder Inram Baksh v. Emperor, A.I.R. 1938 Sind 63.

MEMORIAL ON BEHALF OF THE DEFENSE

Written Pleadings 2

Where the attack is made with fists and kicks merely, or even with lathis merely, one may not
readily infer that knowledge. No hard and fast rule can be laid down on the subject and each case
should be governed by its own facts.4

In order to bring the case within para III of section 300 of IPC, it must be proved that there was
an intention to inflict that particular bodily injury which in the ordinary course of nature was
sufficient to cause death.5

Merely because the blow landed on a particular spot on the body divorced from the
circumstances in which the blow was given, it would be hazardous to say that the accused
intended to cause that particular injury. In the instant case, the weapon was not at hand. The
accused did not posses one. Altercation took place between his father and the deceased and he
gave blow with a wooden stick. In these circumstances it would be difficult to say that the
accused intended to cause that particular injury even though the injury proved to be fatal and was
opined in the ordinary course of nature to be sufficient to cause death.6

In case of wounds with blunt instruments, such as, a stick, the intention is not so clear. The effect
of a severe blow upon one man will be very different from what it will be upon another and it
does not follow, when the victim dies, that it was intended to inflict such injury as is sufficient to
cause death.7

Clause (4) of section 300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general being caused from his imminently
dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender
must be of the highest degree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing the death or such injury as aforesaid.

Dealing a blow with a lathi even though on vital part like the head does not necessarily establish
that the accused intended to cause death.8

4
Ghurey v. Rex. A.I.R. 1949 All. 342.
5
Gurmail Singh v. State of Punjab, 1982 Cr.L..J 1946.
6
Jagrup Singh v. State of Haryana A.I.R. 1981 S.C. 1552.
7
On Shwe Kalaw v. Emperor, I.L.R. 1 Rang. 436.
8
Ranjit Singh v. State, 1965 P.L.R. 1175.
Written Pleadings 3

In the pertinent case, Armaan always used to tease Ridhima, who was obese, and would refer to
her as a moti bhains. He spread rumors about Ridhima saying that she is a drug addict. On 5th
November 2012, at around 5:45 pm, Armaan texted Ridhima from her friend and classmate’s
phone asking her to come to the college auditorium immediately to talk about something very
important. Ridhima rushed to the auditorium and on reaching, she found it empty. As soon as she
entered, at around 6:00 pm, Armaan turned off all the lights, cut off the power supply and locked
the auditorium from outside.

Ridhima panicked and started banging at the doors. She cried for help and ran around looking for
an exit. She remained in that state for about half an hour. At around 6:30 pm, on hearing
someone at the door, she hid behind it, holding a wooden stick she found in the auditorium. As
soon as Armaan entered, she administered a blow on his head from behind with that stick.

However, the accused had no intention to cause the death of the deceased and was not of the
knowledge that such an act of hers would prove to be so fatal that it would result in the death of
the deceased.

The charge of murder is fallacious in the instant case, as the basic element of Mens Rea is absent.
It is a fundamental principle of Criminal Jurisprudence that a person may not be convicted of a
crime unless the prosecution proves this element beyond a reasonable doubt.9 In the instant case,
there is no mala fide intention on the part of the accused that could possibly lead her to commit
such a serious crime.

The blow made by the accused on the deceased was neither premeditated nor calculated but was
made under private defense as the accused was kept in solitude and under constant fear for half
an hour in a dark auditorium where the power was also cut-off.

Thus, it cannot be said that the accused had any intention of causing the death of the deceased
when she committed the act in question nor could she be attributed with knowledge that such act
was likely to cause his death.

Therefore, it is humbly submitted before the Hon’ble Court, that the accused is not liable for
murder under section 300 read with section 302 of the IPC.

9
Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563.
Written Pleadings 4

1.1 THAT THE ACCUSED ACTED UNDER PRIVATE DEFENSE

It is humbly submitted before the Hon’ble Court, that section 300 of the IPC is followed by
certain exceptions where the act of the accused is not considered a murder, which are as
follows:

“Exception 1.—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 provocation is 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 provocation is not given by anything done in the lawful exercise of the right
of private defense.

Explanation. — Whether the provocation was grave and sudden enough to prevent the offence
from amounting to murder is a question of fact.

Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of
the right of private defense of person or property, exceeds the power given to him by law and
causes the death of the person against whom he is exercising such right of defense without
premeditation, and without any intention of doing more harm than is necessary for the purpose
of such defense.

Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding
a public servant acting for the advancement of public justice, exceeds the powers given to him by
law, and causes death by doing an act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public servant and without ill-will towards
the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such
cases which party offers the provocation or commits the first assault.
Written Pleadings 5

Exception 5.—Culpable homicide is not murder when the person whose death is caused, being
above the age of eighteen years, suffers death or takes the risk of death with his own consent.”

In the pertinent case, exception 2 very evidently supports the accused as the she was acting under
private defense, i.e., without any premeditation and without any intention of causing harm than is
necessary for the purpose of such defense.

Right of private defense arises when the person has to face assailants who can reasonably be
apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger
and immediate aid from the state machinery is not available the individual citizen is entitled to
protect himself and his property.

The accused had no idea as to who the person, who was entering the auditorium was, thereby,
ensuring absence of any intention or any previous grudge on her part but a pure act of self-
defense, and an honest act so as to save her from the coming danger and threat, which was real
and immediate.

The accused was kept under wrongful confinement,10 and in solitude without any electricity, in
sheer darkness for half an hour thereby, making her undergo the constant fear of death.

The accused panicked and started banging at the doors. She cried for help and ran around
looking for an exit. She remained in that state for about half an hour. At around 6:30 pm, on
hearing someone at the door, she hid behind it, holding a wooden stick she found in the
auditorium. As soon as the deceased entered, she administered a blow on his head from behind
with that stick.

Soon after the deceased collapsed, she dropped the stick, ran out and locked the door from
outside. The wooden rod used was recovered from the garbage bin nearby. The accuser’s friends
stated that on finding her nervous, they questioned her persistently about what was wrong.
However, they said, she refused to answer, took a tranquilizer and went to sleep.

10
Section 340, IPC, 1860: “Whoever wrongfully restrains any person in such a manner as to prevent that person
from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.”
Written Pleadings 6

Thus, it can be clearly seen that the accused was already in a state of shock and was nervous
thereby, causing her to do such an act, however not intentional but purely a mistake11 and
accidental in nature.

Even when the right of private defense is exceeded and even when more harm was done than
was necessary for the act of private defense, exception 2 would apply provided:

1. The accused caused the death of a person without premeditation.

2. Provided that when the accused caused the death of a person he had no intention of doing
more harm than was necessary for the purpose of defense even if he has caused more
harm than was necessary for the purpose of private defense.

In the case of Jadumani Parikha v. State,12 both the son and the father (the deceased) might have
advanced against the appellate when the latter gave the only blow with the lathi on the vital part
of the body, namely, the jaw. Held that under those circumstances a case of self defense was
made out in the evidence. Therefore, the accused was not held liable for murder under section
300 of the IPC.

In the pertinent case as well, the life of the accused was threatened and there was a reasonable
fear of danger. The wooden rod with which the accused hit the deceased was lying in the
auditorium itself and was not pre-planted by the accused and the act of hitting the deceased with
it was an honest act thereby, saving herself from the approaching danger or threat.

If the threat to the person or property which the accused is entitled to defend is real and
immediate he is not required to weigh in golden scales the kind of instrument and the force
which he uses at the spur of the moment.13

The determination of the question whether there exists the alleged right of private defense is
always a question of fact. It is always the accepted principle that the standard of proof necessary
on the part of the prosecution to establish the guilt of the accused beyond all reasonable doubt is
not what is required of the accused persons to establish their plea under any of the general
exceptions of the Indian penal code. But if the Court, after review of the entire evidence on

11
Bikram Singh v. Emperor, A.I.R. !929 All. 535.
12
A.I.R. 1958 Orissa 113.
13
Parichatt v. State of Madhya Pradesh, A.I.R. 1972 S.C. 535.
Written Pleadings 7

record, finds that the plea is a plausible theory and if the Court entertains a reasonable doubt in
his mind as to the guilt of the accused, the accused is certainly entitled to the benefit even though
the accused person has not been able to fully establish his plea of self-defense under the Indian
Penal Code. There are two important factors in every criminal trial that weigh heavily in favour
of the accused person; one is that the accused is entitled to the benefit of every reasonable doubt
and the other, an off-shoot of the same principle, that when an accused person offers a reasonable
explanation of his conduct, then, even though he cannot prove his assertions, they should
ordinarily, be accepted.14

It is therefore, humbly submitted before the Hon’ble Court, that the accused acted under private
defence with good faith and without any pre-meditation and therefore should not be held guilty
for murder under section 300read with section 302 of the IPC.

14
Manzoor v. State of Uttar Pradesh, 1983 Cr.L..J. 441.
Prayer viii

PRAYER

In the light of the issues raised, arguments advanced and authorities cited it is most humbly and
respectfully requested that this Hon'ble Court adjudge and declare that:

The accused, Ridhima Gupta is not guilty u/s 302 of the Indian Penal Code.

And for this act of Kindness, the Counsel for Defense as in duty bound shall forever pray.

Humbly Submitted

Sd/-

(Counsel for the Defense)

MEMORIAL ON BEHALF OF THE DEFENSE