Compulsory Moot

MEMORIAL ON BEHALF OF DEFENDENT.

COMPULSORY MOOT COURT, 2016 BEFORE THE HON’BLE DISTRICT AND SESSION JUDGE, MOHALI, PUNJAB

STATE OF PUNJAB (Plaintiff) ---versus--Mr. Dev, H/O Mrs. Devaki, R/O Tulip Heights Apartment, 11th Floor, Mohali, Punjab (Defendent)

CASE CONCERNING THE QUESTION, IF ONE CAN BE HELD LIABLE UNDER SECTION 302 OF IPC FOR THE MURDER OF SOMEONE WHO IS ALREADY DEAD.

COMPULSORY MOOT COURT, 2016.

TABLE OF CONTENTS

TOPIC

PG NO.

Index of Authorities

3.

List of Abbreviations

6.

Statement of Jurisdiction

8.

Statement of Facts

9.

Summary of Facts

11.

Statement of Issues

12.

Summary of Arguments

13.

Arguments Advanced

15.

Prayer Clause

36.

**********

Page | 2

COMPULSORY MOOT COURT, 2016.

INDEX OF AUTHORITIES

I . S TATU T O R Y C O M P I L ATI O N S   

CRIMINAL PROCEDURE CODE, 1973 INDIAN PENAL CODE, 1860 I N D I A N E V I D E N C E AC T,1 8 7 2

I I . B O O K S AN D C O M M E N T R I E S



Dr. Shakil Ahmad Khan, “P. Ramnatha Aiyar’s The Law Lexicon- The Encyclopaedic



Law Dictionary”, 3rd edn. 2012 Lexis Nexis, Gurgaon, Haryana. K.D. Gaur, ‘Textbook on Indian Penal Code’’, 5th edn. 2014 Universal Law Publishing



Co. Pvt. Ltd., New Delhi. K.N. ChandrasekharanPillai, (ed): Kelkar ’s Lectures on Criminal



P r o c e d u r e , 4 t h E d . R e p r i n t , E a s t e r n B o o k C o m p a n y, L u c k n o w. K N ChandrasekharanPillai (ed): R V Kelkar’s Criminal



P r o c e d u r e , 5 t h E d . 2 0 0 8 , E a s t e r n B o o k C o m p a n y, L u c k n o w. Ratanlal&Dhirajlal: Criminal Procedure Code , 18th Ed, 2006,



Wad h w a & C o . N a g p u r. S C Sarkar: The Law of Criminal Procedure , 2nd (Reprint), 2010, D w i v e d i L a w Ag e n c y, Al l a h a b a d .

. JOURNALS  

Indian Law Journal Journal of Indian Law and Society

I V. W E B S I T E S AN D W E B L I N K S 

C r i m i n a l L a w, d o w n l o a d e d f r o m , h t t p : / / w w w.i l i . a c . i n / 1 _ C r i m i n a l % 2 0 L a w.p d f , o n 2 n d S e p t . 2 0 1 6 . Page | 3

COMPULSORY MOOT COURT, 2016.



Intoxication and Murder, downloaded from, http://e-lawresources.co.uk/R-v-



Lipman.php, on 2nd Sept. 2016. Indian Penal Code- Bare Act, downloded from, https://indiankanoon.org., on 3 rd Sept. 2016.

 

Voluntary Intoxication, downloaded from, wwwcom/articles/v_t.htm.legalserviceindia, on 3rd Sept. 2016. Murder under intoxication, downloaded from, http://www.mondaq.com/india/x/310720/Crime/Intoxication+No+Ground+For+Diluti on+Of+Murder+Case, on 4th Sept. 2016.

V. TAB L E O F C A S E S

             

Abdul Sayeed v. State of M.P. 2010 [10] SCC 259. Amer Singh v. State AIR 1955 Punj. 13. Basdev v. State of Pepsu AIR 1956 Mad. 488. Emperor v. Dalu Sardar, A.I.R. (2) 1915 Cal. 221. Enrique F. Rio v. State 1975 CriLJ 1337. Kuriya and Anr. v. State of Rajasthan (2012) 10 SCC 433. Palani Gaidan v. Emperor (1919) 42 Mad 547. Raj Kumar v. The State of Punjab,1983 CriLJ 706. R v. Lipman 1970 1 QB 152. Rex v. Meade, (1909) 1 K.B. 895. Rex v. Meakin, (1836) 173 E.R. 131: 7 Car. & P. 295 Santosh Rani Jain and ors. v. State of West Bengal, 1988 Cal CriLR 98. Sarthi v. State of Madhya Pradesh1976 CriLJ 594. Suleman Rahiman Mulani v. State of Maharashtra AIR 1968 SC 829.

Page | 4

COMPULSORY MOOT COURT, 2016.

LIST OF ABBREVIATIONS AC:

Appeal Cases

AIR:

All India Reporter

Bom.:

Bombay

Cal.:

Calcutta

C.J:

Chief Justice

Cri LJ:

Criminal Law Journal

Cri LR:

Criminal Law Reporter

Edn.:

Edition

HC:

High Court

Hon’ble:

Honorable

H/O:

Husband of

ILR:

Indian Law Repoter

K.B.:

King’s Bench

J.:

Justice

Ltd.:

Limited

Page | 5

COMPULSORY MOOT COURT, 2016. Mad.

Madras

Ors:

Others

PIL:

Public Interest Litigation

Punj.:

Punjab

Q.B.:

Queens’s Bench

SC:

Supreme Court

SCC:

Supreme Court Cases

SCR:

Supreme Court Reporter

v.:

Versus

W/O:

Wife of **********

Page | 6

COMPULSORY MOOT COURT, 2016.

STATEMENT OF JURISDICTION

The defendant in the present case has the honour of submitting this reply to the petition instituted under Schedule I of the Code of Criminal Procedure, 1973 under the Chapter XVI - Offences Affecting the Human Body read with section 1771 and section 209 of the Code of Criminal Procedure, 1973 on the basis of the police report, whereby the defendant has been charged for the murder of one Mrs. Devaki, W/O Mr. Dev under section 302 of the Indian Penal Code, 1860. The Defendant most humbly submits to the jurisdiction of the Hon’ble Court with regard to the charges framed under Indian Penal Code, 1860.

1 177. Ordinary place of inquiry and trial. Every offence shall ordinary be inquired into and tried by a court within whose local jurisdiction it was committed.

Page | 7

COMPULSORY MOOT COURT, 2016.

STATEMENT OF FACTS ~Most Respectfully Showeth That~ 

Mr. Dev (hereinafter referred as the Defendant) and Mrs. Devaki (hereinafter refrred



to as the deceased) fell in love while studying in Medical College, Mohali. Both the defendant and the deceased got married on 26 th November, 2011 after



finishing their education. The defendant and deceased started cohabiting in Tulip Heights Apartment, 11th floor, Mohali, which was a wedding gift to the newly married couple by the parents of the



deceased since the defendant was comparatively poor to the deceased and an orphan. Defendant got the anaesthetic branch and the decased after paying a capitaion fees of

Rs. 40 lacs got into gynaecology.  The defendant and the deceased were working in Max Hospital, Mohali, Punjab.  The deceased made much progress as a result of which frequent petty fights started taking place on account of mere ego problems. However, the fights soon ended in reconciliation and deceased would often go to her parent’s home.  One evening, dated XX-XX-XXXX, at about 7:00 p.m., the defendant accused deceasd, his wife of cheating on him as a result of which heated abuses were hearled from both the sides and the Deceased loosing her control gave a slap to the defendant which was retaliated with another one from the defendant also.  Both the parties were disturbed and the Deceased being heart-broken locked herself inv the room and the defendant who was not a habitual drinker sat in the living room drinking heavily.  The deceased opened the medical box of the defendant and injected a 5ml dose of potent aneasthetic to put an end to her life.  When no sound came from the room for a long period of 3-4 hours, the defendant being a caring and concerned husband broke the door to find the deceased lying unconcious on the floor with his medical box to inject anaethesia.  The defendant could not make out for sure if she there was pulse as he was so heavily drunk. He thought that she has committed suicide without any suicide note and was dead.  In order to escape the liability for wrongfully being framed for muder he wrote suicide note and threw the body down from the balcony to show that the deceased committed suicide by jumping off the balcony at around 1:00 am. Page | 8

COMPULSORY MOOT COURT, 2016.  The body of the Deceased was found by the gardner and sent for postmortem, which revealed that the death was due to the dose of aneathesia and not as a result of fall. Hence the deceased was already dead when she was thrown off the balcony.

Page | 9

COMPULSORY MOOT COURT, 2016.

SUMMARY OF FACTS  Both the defendant and the deceased got married on 26th November, 2011.  The deceased made much progress in her profession as a result of which frequent petty fights started taking place on account of mere ego problems. However, the fights soon ended in reconciliation.  One evening, on the ill-fated day dated XX-XX-XXXX, at about 7:00 p.m., the defendant and the deceasd, his wife engaged in heated arguments and the deceased gave a slap to the defendant which was retaliated with another one from the defendant also.  The Deceased being heart-broken locked herself in the room and the defendant sat in the living room drinking heavily.  The deceased opened the medical box of the defendant and injected a 5ml dose of potent aneasthetic to put an end to her life.  When no sound came from the room for a long period of 3-4 hours, the defendent broke the door to find the deceased lying unconcious on the floor.  The defendant could not make out for sure if she there was pulse as he was so heavily drunk. He thought that she has committed suicide without any suicide note and was dead.  In order to escape the liability for wrongfully being framed for murder he wrote suicide note and threw the body down from the balcony at around 1:00 am.  The body of the Deceased was found by the gardner and sent for postmortem, which revealed that the death was due to the dose of aneathesia and not as a result of fall. Hence the deceased was already dead when she was thrown off the balcony.

Page | 10

COMPULSORY MOOT COURT, 2016.

STATEMENT OF ISSUES IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE FOLLOWING ISSUES CAN BE RAISED:-

 WHETHER THE INTOXICATION OF ACCUSED RENDERED HIM INCOMPETENT TO COMMIT MURDER?  WHETHER THE POSTMORTEM REPORT IS ADMISSIBLE IN EVIDENCE?

 WHETHER THE DEFENDANT IS LIABLE FOR THE MURDER OF THE DECEASED?

Page | 11

COMPULSORY MOOT COURT, 2016.

SUMMARY OF ARGUMENTS ~ Whether the intoxication of the accused rendered him incompetent to commit murder? ~ It is most humbly submitted that the present petition is liable to be dismissed as the same is frivolous and baseless. It is crystal clear from the facts of the present case that the defendant as a result of strained relationship with the deceased and the heated argument and physical strife that ensued between the two on dated XX-XX-XXXX took to drinking heavily2, although he was not a habitual drinker as a result of which the alcohal took its toll over his senses and he was rendered incompetent to form the specific intention or the knowledge to commit the murder. It is clear as per the facts of the case that the intention behind the act of the defendant was not of revenge or hatred but that of saving himself from being wrongfully inducted for commiting the offence of murder which he neither committed nor was competent to commit.

~ Whether the postmortem report is admissible? ~ It is further submitted that the postmortem report 3, saying that the death of the deceased was a result of anesthesia which was self-injected and not because of the fall is a sufficient piece of evidence warranting the dismissal of the present petition and hence the acquittal of the defendent as it puts a significant dent in the case of prosecution. The postmortem report disallows the prosecution to prove the guilt of the defendant beyond reasonable doubt and hence the defendant is entitled to benefit of doubt, which happens to be the cardinal principle of fair trial. 2 Fact Sheet, pg 1, para 4. 3 Fact Sheet, pg 2, para7. Page | 12

COMPULSORY MOOT COURT, 2016. ~ Whether the defendant is liable for the murder of the deceased? ~ The present case can be summarized as one involving the question whether one (in the present case the defendant) can be made liable for the murder under section 302 of IPC of someone (in the present case the deceased) who is already dead. It is clear that the most basic ingridient to constitute the offence of muder, that the death should ensue as a result of the act of the accused has not been made out in the present case, hence, the missing actus reus is sufficient to abslove the defendant from the offence of murder.

Page | 13

COMPULSORY MOOT COURT, 2016.

ARGUMENTS ADVANCED

I. WHETHER THE INTOXICATION OF ACCUSED RENDERED HIM INCOMPETENT TO COMMIT THE MURDER?

It is most humbly submitted that the present petition is liable to be dismissed as the same is frivolous and baseless. It is crystal clear from the facts of the present case that the defendant as a result of strained relationship with the deceased and the heated argument and physical strife that ensued between the two on dated XX-XX-XXXX took to drinking heavily 4, although he was not a habitual drinker as a result of which the alcohal took its toll over his senses and he was rendered incompetent to form the specific intention or the knowledge to commit the murder. It is clear as per the facts of the case that the motive behind the act of the defendant was not of revenge or hatred but that of saving himself from being wrongfully inducted for commiting the offence of murder which he neither committed nor was competent to commit. It is the case of the defendant that he be brought within the ambit of section 86 of the IPC dealing with the case of voluntary intoxication as a general defence against the offence of murder defined under section 300 and punishiable under section 302 of the IPC. The relevant section has been reproduced as follows:86. Offence requiring a particular intent or knowledge committed by one who is intoxicated:- In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to 4 Fact Sheet, pg 1, para 4. Page | 14

COMPULSORY MOOT COURT, 2016. be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.5 It is submitted that intoxicant is a word synonymous with intoxicating liquors 6 hence the defendant can be said to have been intoxicated at the relevant point of time when it is alleged the offence was committed. It is further submitted that a man can be said to be intoxicated if he is under the influence of liquor, even if he can walk straight, attend to his business, and may not give any outward and visible signs to the casual observer that he is drunk.7 A careful reading of sections 858 and 86 of IPC reveals that an act done under the influence of self-induced intoxication amounts to an offence, even if the doer, by reason of intoxication is incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law. He, therefore, is not entitled to be immune from the corresponding criminal liability because he, due to the self-administered intoxicant, lost his mental ability to know the nature of the act or that what he is doing was wrong or contrary to law. However, section 86 deals with immunity of a self-intoxicated person when he commits an offence requiring ‘particular knowledge or intention’ as a definitional ingridient, on part of the accused. It provides that if an offence requiring such a knowledge or intention is committed by a selfinduced intoxicated person, only knowledge and not the intention of the offence on his part will be presumed. 5 Indian Penal Code, downloaded from, https://indiankanoon.org/doc/420874/, on 3rd Sept 2016. 6 Dr. Shakil Ahmad Khan, “P. Ramnatha Aiyar’s The Law Lexicon- The Encyclopaedic Law Dictionary”, 3rd edn. 2012 Lexis Nexis, Gurgaon, Haryana, p-883. 7 I bid. 8 85. Act of a person incapable of judgment by reason of intoxication caused against his will.—Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will. Page | 15

COMPULSORY MOOT COURT, 2016. A person who gets into a state of intoxication voluntarily is presumed to have the same knowledge as he would have had if he had not been intoxicated. For instance, in a case of culpable homicide not amounting to murder, if the accused was in a state of intoxication at the time of the alleged offence and the intoxication was vouluntary, he will be presumed under section 86 IPC to have known at the time of the act that it was likely to have caused death and he will be liable to punishment under Part II of the section 304. So, a man who consumed liquor, killed another, while he fired in the air to scare another away, was found guilty and was convicted for having committed culpable homicide.9 This presumption of knowledge in cases of voluntary intoxication is like all other presumptions, rebuttable. It is humbly submitted that the said presumption of knowldege stands rebutted as per the facts and circumstances of the present case as the defendant, not being a habitual drinker was too heavily drunk to make out if the body of the deceased had any sign of life in it and believing it to be dead he threw her off the balcony without any specific knowledge or intention as to the consequnces of the act. In other words for a person to have been killed he must be alive and if someone under the heavy influence of liquor believing it to be dead does something he cannot be said to have formed the specific intention or the knowledge to commit the crime of murder. In short, the want of mens rea is clearly evident from the facts of the present case. While the definition of specific intent is obscure, it is possible, in the light of various judicial decisions to list offences which do, or do not, require ‘specific intent’. For instance, murder, wounding or causing grievious bodily harm with intent to do grievious body harm, rape etc. require ‘specific intent’.10 Hence, in the instant case the defendant fell short of forming a specific intent to commit murder. 9 Amer Singh v. State AIR 1955 Punj. 13. 10 K.D. Gaur, ‘Textbook on Indian Penal Code’’, 5th edn. 2014 Universal Law Publishing Co. Pvt. Ltd., New Delhi, p- 147. Page | 16

COMPULSORY MOOT COURT, 2016. In the case of R v. Lipman 1970 1 QB 152 the appellant had taken some LSD. He was hallucinating and believed he was being attacked by snakes and descending to the centre of the earth. Whilst in this state he killed a girl by cramming bed sheets into her mouth. It was held that his intoxication could be used to demonstrate that he lacked the mens rea for murder as murder is a crime of specific intent. His intoxication could not be a defence to manslaughter as it is a crime of basic intent.11 It is pertinant to mention the following extract of the judgment of Goa, Daman and Diu Court in the case of Enrique F. Rio v. State12:It is therefore necessary to examine whether the accused in the present case was beside his mind altogether as a result of heavy drinking. On this point we have the statements of the prosecution witnesses and the finding of the learned trial Judge to which I have already adverted earlier. There is no doubt that the accused had no grudge against the deceased or Parahinog. Even after a brief brawl at the Beach accused and Parahinog parted as good bottle friends. The remark of the learned Sessions Judge that under the influence of heavy intoxication the accused greatly magnified the small provocation is pertinent. This fact neatly brings out the state of mind of the accused and shows that he was so heavily drunk that he was incapable of forming the requisite intent which could bring his act within the ambit of Section 300, Indian Penal Code. However, in view of Section 86, Indian Penal Code the accused should be imputed with the knowledge of his act. This takes out his case from the rigour of a case of murder to one of culpable homicide not amounting to murder. Since the accused caused the death of the deceased with the knowledge that his act was likely to cause death but without having any intention to cause death, his case would come under Section 304, Part II of the Indian Penal Code. Similarly his act in 11 Intoxication and Murder, downloaded from, http://e-lawresources.co.uk/R-v-Lipman.php, on 2nd Sept. 2016. 12 1975 CriLJ 1337. Page | 17

COMPULSORY MOOT COURT, 2016. inflicting a dangerous injury on the person of Parahinog would come within the purview of Section 308 instead of Section 307, Indian Penal Code. The reason is the same for which his act of culpable homicide has been held to be punishable under Section 304, Part II instead of Section 302, Indian Penal Code. Hence, the defendant is free from liabilty under section 302 and 307 of the IPC. We may next notice, Rex v. Meade, (1909) 1 K.B. 895,: "In the first place, every one is presumed to know the consequences of his acts. If he be insane, that knowledge is not presumed, insanity is not pleaded here, but where it is part of the essence of a crime that a motive, a particular motive, shall exist in the mind of the man who does the act, the law declares this - this if the mind at that time is so obscured by drink, if the reason is dethorned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder or manslaughter". Darling, J. delivering the judgment of the Court of Criminal Appeal affirmed the correctness of the summing up but stated the rule in his own words as follows: "A man is taken to intend the natural consequences of his acts. This presumption may be rebutted (i) in the case of a sober man, in many ways; (2) it may also be rebutted in the case on a man who is drunk, by showing his mind to have been so affected by the drink he had taken that he was incapable of knowing that what he was doing was dangerous, i.e., likely to inflict serious injury. If this be proved, the presumption that he intended to do grievous bodily harm is rebutted.” In the old English case, Rex v. Meakin, (1836) 173 E.R. 131: 7 Car. & P. 295, Baron Alderson referred to the nature of the instrument as an element to be taken in presuming the intention in these words:

Page | 18

COMPULSORY MOOT COURT, 2016. "However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if he had used a different kind of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party." In the case of Basdev v. State of Pepsu13, a retired military officer was charged with the murder of a young boy of 15 or 16. Both of them and others of the same village attended a marriage party. All of them went to the house of the bride to attend the mid-day meal. Some had settled down in their seats and some had not. A military who was very drunk and intoxicated, asked the young boy to step aside a little so that he may occupy a convenient seat. But, when he did not move, the military officer whipped out a pistol and shot him in the abdomen. The injury proved fatal. The evidence showed that the accused sometimes staggered and sometimes was incoherent in his talk. But it was shown that he was capable of moving himself independently and was capable of talking coherently as well. The evidence proved that he came on his own to the house of the bride and that he made the choice of his own seat after injuring the deceased, he attempted to get away and was secured a short distance from the scene. When he was secured, he realized what he had done and asked for forgiveness. All these facts, according to the SC, go to prove that there was no proved incapacity on the accused to form the intention to cause bodily harm sufficient in the ordinary course of the nature to cause death. In view of his failure tom prove such incapacity, the law presumed that he intended the natural and probable consequences of his act. In other words, he intended to inflict bodily injuries on the deceased and the bodily injuries so intended to be

13 AIR 1956 Mad. 488. Page | 19

COMPULSORY MOOT COURT, 2016. inflicted, was sufficient in the ordinary course of nature to cause death. The accused was found guilty of murder.14 In another landmark decision of the Madras High Court15 the accused struck his wife with a violent blow on the head with the ploughshare which rendered her unconcious and hanged his wife soon afterwards under the impression that she was already dead intending to create false evidence as the cause of the death and to conceal his own crime. It was held that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. Hence, the accused cannot be convicted either of murder or culpable homicide, he could of course be punished both for his original assault on his wife and for his attempt to create fake evidence by hanging her. Similarly, if A strikes B with the intention of killing B and, on B’s falling senseless to the ground, A believes B to be dead, and sets fire to the hut wherein B is lying, so as to remove all evidence, and if it is proved that the blows were not likely to and did not cause death and that death was due to burning, A is guilty of attempted murder.16 In the famous case of Sarthi v. State of Madhya Pradesh,17 following was held:Now let us take a closer view of these facts. There is no suggestion that the liquor was administered to the accused without their knowledge or against their will. We must, therefore, attribute to the accused the same knowledge of the consequence of their acts as if they were quite sober. The evidence does not also disclose that the degree of intoxication was such that the accused were beside their minds altogether. It must, therefore, be presumed that they intended the natural consequences of their acts: Section 86, Penal Code; Basdev v. State of Pepsu . However, the facts do not show that there was any strong motive for the accused to kill the deceased. Pressure on the neck by hand was not applied with great force. It only made the deceased unconscious and did not lead to his death. No finger marks on the neck were noticed 14 Voluntary Intoxication, downloaded from, wwwcom/articles/v_t.htm.legalserviceindia, on 3rd Sept. 2016. 15 Palani Gaidan v. Emperor (1919) 42 Mad 547. 16 Q.E. v. Khansuvalad Bhevanti, 1890 ILR Bom. 194. 17 1976 CriLJ 594. Page | 20

COMPULSORY MOOT COURT, 2016. in post mortem examination. Therefore, the act of the accused Sarthi in overpowering the deceased and in pressing his neck with one hand end slapping him with the other hand while the other two accused were holding his hands and feet cannot be said to have been done with the intention of causing his death or with the intention of causing such bodily injury as was likely to cause death, or with the knowledge that the accused were likely to cause death. But the act of pressing the neck of a person who is overpowered and made helpless is an act endangering life and the acts of the accused up to the stage the deceased became unconscious clearly I fell under the definition of grievous hurt. We now come to the stage when the deceased became unconscious. It appears that the accused then became panicky. They probably thought that the deceased if not already dead may die soon and, therefore, with the intention of concealing what they had earlier done they hanged the deceased. There is no material to hold that the accused believed the deceased to be already dead when they hanged him, They took no steps to ascertain whether he was alive or dead. No attempt was made to feel his pulse or to find out whether he was breathing or his heart was beating. The best that can be said in favour of the accused is that after the deceased became unconscious, they, hanged him in a panic unmindful of whether he was alive or dead. The accused may not have been certain that the deceased was alive but they were also not certain that he was really dead. In hanging the deceased in such a situation they acted with reckless indifference to the consequences. 7. What then is the offence which the accused have committed ? In cases where the accused from the beginning acts with the intention or knowledge referred to in Section 299 of the Penal Code and death results the offence is culpable homicide not amounting to murder or murder (depending upon the quality of intention or knowledge) even if in the later stages the accused is labouring under a mistaken impression that he is disposing of a dead body. The two stages of the acts in such cases are so closely connected in time and purpose that they are considered as parts of the same transaction: See In re Kaliappa Goundan AIR 1933 Mad 798 :34 Cri LJ 1109); In re Thayamani AIR 1943 Mad 571; Lingual v. Emperor AIR 1945 Pat 470 and Thabo Meli v. Reginam, (1954) 1 All ER 373 (PC). In the Privy Council case of Thabo Meli (supra) the appellants in accordance with a preconceived plan to kill took Page | 21

COMPULSORY MOOT COURT, 2016. a man to a hut, gave him beer so that he was partially intoxicated and then hit him on the head. They then believing him to be dead rolled him over a low cliff, dressing up the scene to make it look like an accident. The medical evidence disclosed that the deceased was alive, though unconscious when he was left at the foot of the cliff and that he died of exposure. The appellants, who were convicted of murder, argued before the Privy Council that there was absence of mens rea or intention to kill from the point of time the appellants thought that the man was already dead and, therefore, they could not be convicted of murder. In rejecting this argument Lord Reid said that "it was impossible to divide up what was really one series of acts" and that the crime was not reduced from murder to a lesser crime merely because the accused were under some misapprehension for a time during the completion of their criminal plot. Commenting upon this case Prof. Williams has observed. "In these cases the accused intends to kill and does kill; his only mistake is as to the precise moment of death and as to the precise act that effects death. Ordinary ideas of justice and commonsense require that such a case shall be treated as murder." (Criminal Law 2nd Edition, p. 174). The Privy Council case of Thabo Meli (1954) 1 All ER 373 and the observations of Prof. Williams were followed by the Court of Criminal Appeal in R, v. Church (1965) 2 All ER 72, where the accused was convicted of man slaughter on a lenient direction to the Jury by the trial Judge. The instant case does not fall in this class of cases for here, to begin with, the accused did not act with the intention or knowledge referred to in Section 299. There is another class of cases where the original intention of the accused is to cause hurt simple or grievous and after hurt is caused the accused mistakenly believes that the victim has died and in that mistaken belief he does a further act to obliterate the traces of his crime and it is this later act which causes death of the victimIn this class of cases one view is that the accused is only guilty of the offence of causing hurt or grievous hurt and he cannot be convicted for the offence of culpable homicide or murder: See In re Palani Goundan AIR 1920 Mad 862 :20 Cri LJ 404) (FB); Emperor v. Dalu Sardar AIR 1915 Cal 221 :15 Cri LJ 709); In re Chinnathambi, (1952) 2 Mad LJ 550 : 1953 Cri LJ 449. In Palani Goundan's case the accused struck his wife a blow on the head with a plough share which knocked her senseless. The accused believed her to be dead and in order to lay a false defence of Page | 22

COMPULSORY MOOT COURT, 2016. suicide by hanging proceeded to hang her by a rope. The blow on the head was in fact not fatal and the cause of death was asphyxiation by hanging. On these facts the accused was held guilty of the offence under section 326 as his intention to begin with was not to cause death or such bodily injury as it likely to cause death and the subsequent act of hanging the senseless victim was done under the belief that he was hanging merely a lifeless body. On similar facts, however, Patna High Court found the accused guilty under Section 304, Part 2 on the finding that in hastily believing the victim dead the accused acted recklessly with gross negligence and must be imputed the knowledge required under the third clause of Section 299. See The King v. Sreenarayan (1948) ILR 27 Pat 67. On similar facts but where the degree of negligence was comparatively less the accused was convicted under Section 304A by the Rajasthan High Court: Buddha v. State (1959) ILR 9 Raj 762. It will be seen that the difference of opinion in this class of cases is for the reason that the Madras and Calcutta cases do not take notice of the principle that a person acting recklessly or with gross-negligence can be imputed the knowledge that he is likely by his act to cause death of the victim. This principle which is relied upon by the Patna and Rajasthan High Courts is open to one objection that when the accused really believes the victim to be dead (howsoever negligently he may have got this belief), he does not in fact have the knowledge that he is likely to cause death of the victim by the act of burning or hanging the victim's body. The fact that the accused did not take necessary steps to ascertain whether the victim was dead or alive may go tp show that he did not really believe that the victim was dead: See Nannhu v. State, 1960 Cri LJ 605 (Madh Pra). But if a finding is reached that the accused did believe the victim to be dead, his negligence in reaching that belief is irrelevant for the question whether he had the knowledge referred to in the third clause of Section 299. We do not, however, find it necessary to express any final opinion on this point because on the facts found in the instant case the accused acted recklessly unmindful of whether the victim was alive or dead. The Court in this class of cases may be faced with three fact situations, The accused may believe the victim to be dead, he may believe the victim to be alive or as in the present case he may be unmindful of whether the victim is alive or dead. Whatever may be the outcome when the accused believes Page | 23

COMPULSORY MOOT COURT, 2016. the victim to be dead, we have no doubt that it would be clearly murder if the accused with the knowledge that the victim is alive hangs him with the object of concealing the earlier crime. Similarly, we have no doubt that if the accused, unmindful- of whether the victim is alive or dead hangs him and thereby causes his death, the accused must be attributed the knowledge that he may by the act of hanging was likely to cause death. On the facts of the instant case the accused, to begin with, had only the intention of causing grievous hurt, but when the deceased became unconscious they became panicky and, unmindful of whether the deceased was alive or dead, they hanged him causing his death. In hanging the deceased, the accused must be attributed the knowledge that they were likely to cause death. The accused although not liable for the offence of murder are clearly liable to be punished for the offence under Section 304, Part 2. It is further submitted that with regards to the facts and circumstances of the present case it is worthwile to take a note of difference between motive and intention. Austin, defined motive as the ‘spring of action’. ‘Intention’, acording to him is ‘the aim of the act, of which the motive is the spring’. A motive is something which prompts a person to form an opinion or the intention to do certain illegal acts or even a legal act by illegal means with a view to acjieve the inteniton. Motive is the reason for an actio, i.e., what impels a person to act, such as ambition, envy, fear, jealousy, etc. which as far the defendant and the decesaed were concerned was absent. Motive being a compelling force to commit a crime, becomes a relevant factor in determination of guilt of an individual or of the quantum of punishment.18 It is to be further taken into account that "intoxication, as such, is not a defence to a criminal charge," but "at times, it can be considered to be a mitigating circumstance if the accused is not a habitual drinker, otherwise, it has to be considered as an aggravating circumstance."19 18 Dr. K.I. Vibhute, ‘PSA Pillai’s Criminal Law’, 12th edn. 2014, Lxis Nexis, Gurgaon, Haryana, p- 44. 19Murder under intoxication, downloaded from, http://www.mondaq.com/india/x/310720/Crime/Intoxication+No+Ground+For+Dilution+Of+ Murder+Case, on 4th Sept. 2016. Page | 24

COMPULSORY MOOT COURT, 2016.

Page | 25

COMPULSORY MOOT COURT, 2016. II. WHETHER THE POSTMORTEM REPORT IS ADMISSIBLE? It is further submitted that the postmortem report 20, saying that the death of the deceased was a result of anesthesia which was self-injected and not because of the fall is a sufficient piece of evidence warranting the dismissal of the present petition and hence the acquittal of the defendent as it puts a significant dent in the case of prosecution. The postmortem report disallows the prosecution to prove the guilt of the defendant beyond reasonable doubt and hence the defendant is entitled to benefit of doubt, which happens to be the cardinal principle of fair trial. According to section 3 of the Indian Evidence Act, 1872, “ Evidence” means and includes— (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) 6 [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence.21 In the decision reported as Abdul Sayeed v. State of M.P.22 the Supreme Court laid down the legal position regarding contradiction between medical evidence and ocular evidence held that it can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value viz-a-viz medical evidence, when medical evidence makes the ocular testimony improbable that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of ocular evidence being proved the ocular evidence may be disbelieved. This legal position was reiterated in Kuriya and Anr. v. State of Rajasthan23. 20 Fact Sheet, pg 2, para7. 21 https://indiankanoon.org/doc/1031309/. 22 (2010) 10 SCC 259. 23 (2012) 10 SCC 433. Page | 26

COMPULSORY MOOT COURT, 2016. It is a well settled position of law that the post-mortem report and injury report by a medical officer are not admissible in evidence unless the medical officer giving the reports is examined (AIR 1966 Orissa 21: ILR 9 Calcutta 455 and 4 CWN 129). If, however, the doctor is dead or is not available for examination in court under the circumstances mentioned in section 32 of the Evidence Act, the injury report and port-mortem report are admissible in evidence under section 32(2) of the Evidence Act. Since the fact sheet is silent regarding the status of doctors it is humbly submitted that the same be considered to be suffice to create a reasonable doubt in the prosecution’s case.24

24 Santosh Rani Jain and ors. v. State of West Bengal, 1988 Cal CriLR 98. Page | 27

COMPULSORY MOOT COURT, 2016. III. WHETHER THE DEFENDANT IS LAIBLE FOR THE MURDER OF THE DECEASED? The present case can be summarized as one involving the question whether one (in the present case the defendant) can be made liable for the murder under section 302 of IPC of someone (in the present case the deceased) who is already dead. It is clear that the most basic ingridient to constitute the offence of muder, that the death should ensue as a result of the act of the accused has not been made out in the present case, hence, the missing actus reus is sufficient to abslove the defendant from the offence of murder. An event is often the result of a number of factors. A factor is said to have caused a particular event if, without that factor, the event would not have happened. Thus, a man is said to have caused the actus reus of a crime if, that actus would not have occured without his participation in what was done. Some causal relationship has to be established between his conduct and the prohibited result. A man is usually held criminally liable only for the consequences of his conduct as he forsaw, or in case of negligence he ought to have forseen. Thus, as far as the facts of the present case are concerned the defendant was not in a position to forsee the consequences of his act believing the deceased to be already dead after checking her pulse; he could not be criminally held liable for the murder of the deceased. As stated earlier, the act must be the causa causans, i.e., the immediate cause of the act. Taking this into account it is also well established that in order to impose a criminal liablity under section 304A, IPC, it is essential to establish that death is the direct result of the rash and /or negligent act of the accused.25 Similary is the case of offence of murder, that the death must be the direct result of the act. The fundamental principle of criminal liablity is that there must be a wrongful act-actus reus combine with a wrongful intention, mens rea. This principle is embodied in the fanous 25 Suleman Rahiman Mulani v. State of Maharashtra AIR 1968 SC 829. Page | 28

COMPULSORY MOOT COURT, 2016. maxim, actus non facit reum nisi mens sit rea, meaning ‘an act does not make one guilty unless the mind is also legally blameworthy. It is averred before the Hon’ble court that actus reus has been defined as ‘such result of human conduct as the law seeks to prevent’. Actus reus, in otherwords, connotes act, the physical result of the human conduct. It is an event that is ditinguished from the conduct which produced the result. For instance, in a murder case victim’s death is the evnt which is the actus reus. The death or the actus reus was probably caused by the firing of the gun, which is the conduct which produced the result. To illustrate this further, let us take an instance of A firing a gun to kill B. While shooting, A holds the gun, places his finger on the triiger and pulls the trigger, as a consequence of which the bullet leaves the gun. In order to constitute an actus reus, there must be the further consequence of the bullet entering B’s body and thereby causing his death as result of the wound received from the bullet.26 It is pertinant to reproduce the relevant provisions dealing with the offence of culpable homicide and murder as contained in IPC: 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. Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.—The causing of the death of child in the mother’s womb is not 26 Supra Note 13, p-24. Page | 29

COMPULSORY MOOT COURT, 2016. homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 300. Murder.—Except in the cases hereinafter excepted, culpable homicide 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. Illustrations: (a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder. (b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a

Page | 30

COMPULSORY MOOT COURT, 2016. sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death. (c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z’s death. (d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. 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 defence. 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 defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising

Page | 31

COMPULSORY MOOT COURT, 2016. such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. 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.27 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. 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. 302. Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. It is humbly submitted that the very first test to decide whether a particular act or omission would be covered by the definition of muder is to verify whether the act or omission would be covered by the definition of murder, is to verify whether the act done by the accused has caused the death of another person. Clause 4 of section 300 contempltes generally, commission of acts which are so immently dangerous that it is likely to cause death. Under this clause, the act need not be directed

27Section 300, downloaded from, https://indiankanoon.org/doc/626019/, on 5th Sept. 2016. Page | 32

COMPULSORY MOOT COURT, 2016. against a particular individual. This provision is to be read with illustration (d) and the person doing such an act must have the knowledge it would result in the death of the other person. In Emperor v. Dalu Sardar, A.I.R. (2) 1915 Cal. 221, the accused Dalu had first assaulted his wife Sandeshi with kicks and slaps. The woman fell down unconscious. In order to make it appear that the woman committed suicide, accused took up the unoonsoious body of his wife thinking her to be dead and bung it by rope, It was found that in fact death was not caused by the previous assault, but by the hanging. The Calcutta Judges convicted the accused not under Section 302, but under Section 326, Penal Code. In the Madras case, Palani Goundan v. Emperor 42 Mad. 647 : A.I.R. (7) 1920 Mad. 862, the accused struck his wife a blow on the head with a ploughshare which rendered her unoonsoious. Believing her to be dead, in order to lay the foundation of a false defenoa of suicide by hanging, the accused hanged her on a beam by a rope and thereby caused her death by strangulation. The Full Bench held that the accused was not guilty of murder, but of grievous hurt. In the present case, on the facts proved, it is contented that the defendent had no intention to cause the death of the deceased and it follows that he is not liable to be convicted on the charge of murder. It is further brought to the knid notice of the Hon’ble Court to take notice of the fact that the defendant cannot be held liable for any illegal omission on his part to save the decased as he was oblivious about the commission of suicide by the deceased. It is averred that there was no illegal omission with an intention or the knowledge to cause the death of the deceased. This point can further be proved by perusal of the decision of the Punjab and Haryana high court in the case of Raj Kumar v. The State of Punjab,28

28 1983 CriLJ 706. Page | 33

COMPULSORY MOOT COURT, 2016. Wife threatened to commit suicide if husband did not live with her - Husband retarded that wife was free to do anything - Husband also omitted to prevent wife from committing suicide - Wife actually committing suicide - Husband cannot be said have instigated or abetted the crime - Offence under Sections 107 and 306 Indian Penal Code not made out. Moreover, the act of the defendant must have been the immediate cause of the death of the deceased, which as per the postmortem report is not the case.

Page | 34

COMPULSORY MOOT COURT, 2016.

PRAYER CLAUSE Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities cited, it is most humbly and respectfully prayed before this Hon’ble Court that it may be pleaded to-

 The petition may kindly be dismissed and the defendant be acquitted from the charge of murder of Mrs. Devaki (the deceased) under section 302 of IPC.  Any other relief for which the Defendent is further found entitled may also be granted in his favour and against the Plaintiff in the ends of justice.

Most humbly and respectfully submitted

DatePlace- Mohali, Punjab.

Sd/Counsel for the Defendnent

Page | 35

COMPULSORY MOOT COURT, 2016.

Walker v. Superior Court

In late February of 1984, four-year-old Shauntay Walker came down with what seemed like the flu. After four days of mild illness the child developed a stiff neck. Consistent with her beliefs as a Christian Scientist, Shauntay's mother Laurie did not seek medical attention, but instead treated Shauntay through prayer. Laurie Walker contacted a church prayer practitioner who prayed for and visited the child, and a Christian Science nurse who attended the child on three separate occasions. The child's illness, later determined to be meningitis, grew progressively worse, however. Shauntay lost weight and became irritable and disoriented. After a seventeen-day illness, Shauntay exhibited heavy and irregular breathing. A short time later she died. The Sacramento District Attorney later charged Laurie Walker with involuntary manslaughter and felony child endangerment for the death of her daughter.

In a pretrial review of the charge against Walker, the California Supreme Court rejected her proposed defense of good motive. The court held that involuntary manslaughter depends on criminal negligence, determined by whether "a reasonable person in defendant's position would have been aware of the risk involved." Ms. Walker's concern and good faith in treating her child would not be an excuse.

Constructive manslaughter:

Constructive manslaughter means killing as a result of certain kinds of unlawful and dangerous acts. The unlawful act must be such as all sober and reasonable people- would inevitably recognize must subject the other person to, at least, the risk of some harm resulting

Page | 36

COMPULSORY MOOT COURT, 2016. therefrom, albeit not serious harm. At one time it was held that a killing, though unintentional, was murder if it occurred in the course of any unlawful act; so an accidental killing while trying to steal a fowl was murder. This doctrine of constructive murder was limited in the course of time by judicial decision and statute; and the area progressively freed from the law of murder was simultaneously and automatically occupied by the doctrine of constructive manslaughter. What had been murder became manslaughter. Hence, for several centuries, it was axiomatic that a killing in the course of an unlawful act was at least manslaughter by construction of law.29 Involuntary manslaughter Involuntary manslaughter is the unlawful killing of a human being without malice aforethought30, either expressed or implied. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories; constructive manslaughter and criminally negligent manslaughter, both of which involve criminal liability. Constructive manslaughter Constructive manslaughter is also referred to as "unlawful act" manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. The malice involved in the crime is transferred to the killing, resulting in a charge of manslaughter. For example, a person who runs a red light driving a vehicle and hits someone crossing the street could be found to intend or be reckless as to assault or criminal damage (see DPP v Newbury). There is no intent to kill, and a resulting death would not be considered murder, but would be considered involuntary manslaughter. The accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act.

29 http://lawprojectsforfree.blogspot.in/2010/09/indian-penal-code-manslaughter-and.html 30 Malice aforethought was the "premeditation" or "predetermination" (with malice) that was required as an element of some crimes in some jurisdictions,[1] and a unique element for first-degree or aggravated murder in a few.

Page | 37

COMPULSORY MOOT COURT, 2016. Reckless drinking or reckless handling of a potentially lethal weapon may result in a death that is deemed manslaughter. Involuntary manslaughter may be distinguished from accidental death. A person who is driving carefully, but whose car nevertheless hits a child darting out into the street, has not committed manslaughter. A person who pushes off an aggressive drunk, who then falls and dies, has probably not committed manslaughter, although in some jurisdictions it may depend whether "excessive force" was used or other factors. It is also possible to be held civilly liable for a death (and pay damages) without being criminally liable (and going to prison), e.g. O.J. Simpson. As manslaughter is not defined by legislation in Australia, common law decisions provide the basis for determining whether an act resulting in death amounts to manslaughter by unlawful and dangerous act. To be found guilty of manslaughter by an unlawful and dangerous act, the accused must be shown to have committed an unlawful act which is contrary to the criminal law and that a reasonable person in the position of the accused would have known that by his or her act, he or she was exposing the victim to an ‘appreciable risk of serious injury’. Criminally negligent manslaughter Criminally

negligent

manslaughter is

variously

referred

to

as

criminally

negligent homicide in the United States, and gross negligence manslaughter in England and Wales. In Scotland and some Commonwealth of Nations jurisdictions the offence of culpable homicide might apply. It occurs where death results from serious negligence, or, in some jurisdictions, serious recklessness. A high degree of negligence is required to warrant criminal liability. A related concept is that of willful blindness, which is where a defendant intentionally puts himself or herself in a position where the defendant will be unaware of facts which would render him or her liable. Criminally negligent manslaughter occurs where there is an omission to act when there is a duty to do so, or a failure to perform a duty owed, which leads to a death. The existence of the duty is essential because the law does not impose criminal liability for a failure to act unless a specific duty is owed to the victim. It is most common in the case of professionals Page | 38

COMPULSORY MOOT COURT, 2016. who are grossly negligent in the course of their employment. An example is where a doctor fails to notice a patient's oxygen supply has disconnected and the patient dies (R v Adomako). Another example could be leaving a child locked in a car on a hot day.

Page | 39