Moot Memorial On Culpable Homicide, Murder
September 14, 2022 | Author: Anonymous | Category: N/A
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BEFORE THE HONORABLE SESSIONS COURT OF DELHI
FOR OFFENCES CHARGED UNDER SECTION 300 & 302 OF IPC, 1860
SC No.
/2020
ARMAAN MALLIK
(PROSECUTION) V.
RIDHIMA GUPTA
(DEFENCE)
MEMORANDUM ON BEHALF OF THE PROSECUTION
TABLE OF CONTENTS
1. LIST LIST OF ABB ABBREV REVIAT IATION IONS…… S……………… ………………… ……………… ………….. ….. 2. INDEX INDEX OF AUT AUTHO HORIT RITIES IES………… ………………… ……………… ……………… ………… … 3. TABLE TABLE OF C CASE ASES…… S…………… ……………… ……………… ……………… ………………. ………. 4. STATEMEN STATEMENT T OF JURIS JURISDICTIO DICTION………… N…………………………… ………………… 5. STATEMEN STATEMENT T OF FACTS FACTS……………… ………………………….. …………...... ......... ......... ........ .... 6. ISSUE ISSUE RAIS RAISED… ED………… ……………… ……………… ……………… ………………… …………….. ….... .. 7. SUMMAR SUMMARY Y OF ARGU ARGUMEN MENTS… TS………… ……………… ………………… ……………. …. 8. ARGUME ARGUMENTS NTS ADV ADVANC ANCED… ED………… ……………… ………………… ………………. ……. 9. PRAYER PRAYER……… ……………… ……………… ……………… ………………… ………………… ……………… ……… 10. ENDNOTE………………………………………………………
iii
LIST OF ABBREVIATIONS ABBREVIATIONS
AIR
All India Reporter
Anr.
Another
Cri.LJ
Criminal Law Journal
Crl.
Criminal
ILR
Indian Law Report
IPC
Indian Penal Code, 1860
Ors.
Others
SC
Supreme Court
SCC
Supreme Court Cases
S.L.P.
Special Leave Petition
u/s
Under Section
V.
Versus
iv
INDEX OF AUTHORITIES
BOOKS nd
1.
KD Gaur, Commentary on Indian Penal Code, Code , 2 Ed. (2013) Universal Law Publishing
2.
Dr.. K I Vi Dr Vibh bhu ute, te, PSA Pillai’s Criminal Criminal Law Law,, 12th Ed. (2014) Lexis Nexis
3.
Ram Jet Jethm hmala alani ni & P Pro rof.D f.D.S. .S.Ch Chop opra, ra, The Indian Penal Code, Code, 1st Ed. (2014) Thomson Reuters.
4.
Rata Ratanl nlal al & D Dhi hira rajl jlal al,, The Indian Penal Code, 34th Ed. (2014) Lexis Nexis.
ONLINE ARTICLES
1.
Sera Serafetti fettin n Demi Demirci, rci, M.D M.D.; .; Kamil H Hakan akan D Doga ogan, n, M.D.; aand nd Gur Gursel sel Gu Gunay naydin, din, M. M.D., D., Throat-Cutting of Accidental Origin,, J Forensic Sci, July 2008, Vol. 53, No. 4, doi: 10.1111/j.1556-4029.2008. 00764.x, Available online at: Origin www.blackwell-synergy.com
at
https://www.researchgate.net/profile/Kamil_Hakan_Dogan/publication/5359997_ThroatCutting_of_Accidental_Origin/links/09e415023a71b5a114000000/Throat-Cutting-of-Accidental-Origin.pdf
WEBSITES
1. htt http:/ p://ww /www.j w.juri uris.n s.nic. ic.in in 2. htt http:/ p://ww /www.m w.man anup upatr atra.c a.co.i o.in n 3. htt http:/ p://ww /www.s w.scco cconli nline ne.co .com m
STATUTES
1. The Code of C Crimin riminal al P Proce rocedure dure,, 197 1973 3
2. The India India Pe Pena nall Co Code de,, 18 1860 60
v
TABLE OF CASES S. NO .
NAME OF THE CASE
CITATION
1.
Arun Raj v Union of India and ors.
6 (2010) SCC 457
2.
Darshan Singh v. State of Punjab
AIR 2010 SC 1212
3.
Gopal and Anr. v. State of Rajasthan
(2013) 2 SCC 188
4.
Kesar Singh v. State of Haryana
(2008) 15 SCC 753
5.
K.M. Nanava vs State of Maharashtra
(AIR 1962 SC 605)
6.
Mahmood vs State
AIR 1961 All 538
7.
Mano Du v. State of UP
(2012) 4 SCC 1983
8.
Virsa Singh v. State of Punjab
1958 AIR 465
9.
Wassan Singh vs. The State Of Punjab
1996 SCC (1) 458
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STA ST ATEMENT OF JURISDICTION JURIS DICTION
The Prosecution has approached the Hon’ble Sessions Court of Delhi under Sec. 177 1 read with Schedule I of Code of Criminal Procedure, 1973.
1
SECTION 177 OF CODE OF CRIMINAL PROCEDURE, 1973
Ordinary place of inquiry and trial. Every oence shall ordinarily be inquired into and tried by a Court within whose local jurisdicon it was commied.
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STATEMENT OF FACTS 1. Armaan M Mallik allik (d (decease eceased) d) and Ridh Ridhima ima Gupt Guptaa (accuse (accused) d) are stude students nts of CBIT Engineering College, Delhi. They were pursuing their II year. Ridhima has known to have temper issues. On one occasion, she lost her temper and slapped Armaan too. 2. On 5th N Novembe ovemberr 2012, A Armaan rmaan ttried ried to p play lay a prank prank on Ri Ridhima dhima.. At around 5:45 pm, Armaan texted Ridhima from her friend’s phone asking her to come to the college auditorium. auditorium. As soon as she ent entered, ered, at around 6:00 pm, Armaan turned off all the lights, cut off the power supply and locked the auditorium from outside. 3. At aroun around d 6:30 p pm, m, on he hearing aring so someone meone aatt the doo door, r, she hi hid d behind 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. 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. 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. 4. On 6th Nov November, ember, aatt around 8: 8:00 00 pm, Ar Armaan maan Mal Mallik lik was fou found nd lyin lying g in a pool of blood in the auditorium by a group of students. According to the post mortem report, he gradually bled to to his death due to the wound at the back of his head.
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ISSUES RAISED
1. WHETHER OR NOT THE ACCUSED IS GUILTY FOR T THE OFFENCE OF CULPABLE HOMICIDE AMOUNTING TO MURDER U/S 302 OF INDIAN PENAL CODE, 1860? 2. WHETHER THE ACCUSED ACTED UPON PRIVATE DEFENCE? 3. WHETHER
THE
DECEASED
CAUSED
SUDDEN
AND
PROVOCATION TO THE ACCUSED? 4. WHETHER T THERE WAS SCOPE FOR P PREMEDITATION AND CALCULATION ?
GRAVE
ix
SUMMARY OF ARGUMENTS
1. WHETHER OR NOT THE ACCUSED IS GUILTY FOR T THE OFFENCE OF CULPABLE HOMICIDE AMOUNTING TO MURDER U/S 302 OF INDIAN PENAL CODE, 1860? It is submitted that the accused is guilty of murder as dealt u/s 300 of IPC ‘thirdly’. That the accused inflicted an injury to the head of the deceased and leaving him to bleed to death shows her intention of killing the deceased.
2. THAT THAT THE ACCUSED DID NOT ACT IN PRIVA PRIVATE DEFENCE It is submitted that the accused did not act within the ambit of her right of private defence. That the force chosen by the accused for defence is irrational to what was apprehended. There was no imminent danger to the life of the accused but she hid behind the door to hit hit the deceased on the head. That That even after hitting the deceased with the stick, she had the opportunity of saving his life but instead she chose to conceal the fact that the deceased is left dying in the auditorium.
3. WHET WHETHE HER R THE THE DECE DECEAS ASED ED CA CAUS USED ED SU SUUD UDEN EN AND AND GRAVE PROVOCATION TO THE ACCUSED?
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It is submitted that the deceased had not caused grave and sudden provocation to the the ac accu cuse sed. d. Th Thee accu accuse sed, d, ou outt of gr grud udge ge towa toward rdss the the de dece ceas ased ed,, had had premeditatedly decided to hit him while he came near the door of the auditorium. Unlike the accused, a reasonable man at her place wouldn’t have sorted to such means and could have dealt with the situation in a different manner. That the accused had sufficient time to cool- off, however, her motive was different which was to kill the deceased.
THERE WAS SCOPE 4. WHETHER PREMEDITATION AND CALCULATION?
FOR
It is most humbly submitted that in the present case there was a complete scope for premeditation and calculation in the situation which clearly indicates that the defense had no pattern set to do the act.
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ARGUMENTS ADVANCED ADVANCED ISSUE 1: THAT THE ACCUSED IS GUILTY FOR T THE OFFENCE OF CULPABLE HOMICIDE AMOUNTING TO MURDER U/S. 302 OF INDIAN PENAL CODE
It is most humbly submitted before this Hon’ble Court that Ridhima Gupta (hereinafter referred to as the ‘accused’) is punishable for the offence of murder under S. 302 of Indian of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’). In order to bring a successful conviction under this charge, however, it is pertinent for the prosecution to show that the act committed by the accused is covered under any one of the four clauses c lauses of S. 300, IPC. 2 It is contended that the act of the accused is covered under clause three of S. 300, IPC, which elucidate the following essentials as laid down by Hon’ble Supreme Court3: 1) First , it must establish, quite objectively, that a bodily injury is present, 2) Secondly Secondly,, th thee na natu ture re of th thee in inju jury ry must must be pr prov oved ed;; th thes esee ar aree pu pure rely ly ob obje ject ctiv ivee investigations, 3) Thirdly Thirdly,, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, 4) Fourthly Fourthly,, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 2
Sec. 300, I NDIAN P ENAL C ODE, 1860, “Murder. —Except in the cases hereinafter excepted, culpable homicide is murder: (Firstly) — 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.” 3 Virsa Singh vs. State of Punjab AIR Punjab AIR 1958 SC 465
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It was observed by Hon’ble Supreme Court that once the above mentioned four elements are established by the prosecution the offence is murder under Section 300, "3rdly". Therefore, it is asserted that in the pertinent case the accused has caused the death of Armaan Mallik by intentionally causing particular bodily injury i.e. by administering a blow on his head hea d from behind behind [1.1] and the injury caused is sufficient to cause death in the ordinary course of nature [1.2].
[1.1 [1.1]] THAT
THE ACCUSED HAS INTENTIONALLY CAUSED THE PARTICULAR BODILY
INJURY:
It is humbly submitted that at the onset of the case it is very essential to prove that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth.4 It is submitted that in the present case the throat of the deceased was cut and he died as a result of this injury. 5 It is asserted that the next question comes as to the intention to cause the alleged injury and when it comes to the question of intention, that is subjective to the offender then it must be proved that he had an intention to cause c ause the bodily injury that is found to be present. It was held by Hon’ble Supreme Supreme Court that what needs to be proved proved is not that the accused had an intention to inflict the injury that was sufficient to cause death in ordinary course of nature but that he had an intention to cause the same bodily injury that is found to be present on the body of the deceased.6 It was held that the initial words of second part of S.300(3) is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on 4
Haryana (2008) 15 SCC 753 Virsa Singh in vs.FState of Punjab AIR Punjab AIR 1958 SC 465; Kesar 465; Kesar Singh v. State of Haryana As mention ACTSHEET 6 Kesar Singh v. State of Haryana Kesar Haryana (2008) 15 SCC 753 5
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the lower part of the leg, or some lesser blow. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause - "and the bodily injury intended to be inflicted" is merely descriptive.7 It was further observed by court in considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous part of the body, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to inquire into every last detail as, for instance, whether the accused intended inten ded to blow the head. head. It is broad based and simple simple and based based on common common sense: the kind of enquiry that "an ordinary man" could readily appreciate and understand. 8 Therefore, it was concluded by court that the question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.9
[1.2]] That [1.2
THE INJURY CAUSED IS SUFFICIENT TO CAUSE DEATH IN THE ORDINARY
COURSE OF NATURE:
It is humbly submitted that once it is established that the injury is caused and the accused has the intention intention to cause the injury inflicted on the person of the deceased then comes the later part of the enquiry which is objective in nature to find out that whether the injury was sufficient in the ordinary course of nature to cause death or not. Thus, intention is only linked up and is restricted to the causing of the bodily injury and not to the knowledge or intention of causing such bodily injury that is sufficient to cause death in ordinary course of nature.
7
Kesar Dhupa Dhupa Singh Chamar v. State of Bihar ( (2002) (2002) 6 SCC Kesar v. State of Haryana Haryana 2008) 15 SCC506 753 9 Jai Prakash vs State (Delhi Administration) 1991 Jai Administration) 1991 SCC (2) 32 8
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It was observed by Hon’ble Supreme Court that what needs to be proved is that the accused had an intention to cause the same bodily injury found to be present on the person of deceased, which was later found to be sufficient to cause death. Such a principle is based on broad lines of common sense because if intention is considered to be of causing an injury which is sufficient to cause death; then any person could always plead that he never had an intention to cause such a injury and it would have been very difficult to prove him wrong. 10 In the present case the accused have administered a blow on the head of the deceased from back .It is humble submitted that death from a blow on the head depends on the nature and extent of local damage to the brain which may result in death in this situation It is humbly submitted that according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. It was observed by the court that no one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. Therefore, it is most humbly submitted that the accused has caused the death of Armaan Mallik by administering a fatal blow on the back portion of the head of the deceased and the nature of injury was such that it was sufficient to cause the death of a person in ordinary course of nature and the accused can be held liable for the offence of culpable homicide amounting to murder u/s 302 IPC.
ISSUE 2: THAT THE ACCUSED DID NOT ACT IN PRIVATE DEFENCE
10
Virsa Singh vs. State of Punjab AIR Punjab AIR 1958 SC 465; Kesar 465; Kesar Singh v. State of Haryana Haryana (2008) 15 SCC 753r
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1. It is submitted submitted that that the right right of private private defence defence to the the accused is not applicab applicable. le. That the the accused without apprehension of imminent danger to life took the stick and hit the deceased and knowingly left him to die.
2. It is submitted submitted that that the right right of private private defence defence as granted granted under under IPC is is a defensive defensive right right and not a punitive or retributive right. It is submitted that the right of Private defence as provided under section 100 of IPC IPC runs as follows: The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: — (First) — (First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (Secondly) —Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
3. It is submitted submitted that that there was was no assault assault from the the part of of the deceased. deceased. Irrespecti Irrespective ve of the behavior of the deceased, the accused, from a pre-meditated mindset, hid behind the the door in order to hit the deceased with the stick.
4. It is submitted that it was neither reasonable nor necessary that the accused acted in such a manner that she had blown with the wooden stick on the head of the deceased. As soon as she heard someone approaching the door, she hid behind the door, holding a wooden stick she found in the auditorium. This reveals her pre-meditated state of mind which she has made and was ready to hit whoever comes from the door. If instead of the deceased, someone else had come to the auditorium, the action of the accused and the result of it would have been the same.
State of UP, i it was held that the right of self-defence has to be 5. In Mano Dutt v. State exercised directly in proportion to the extent of aggression.
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6. It is submitted that the right of self-defence of accused is way more than what is apprehended. There have been previous instances of quarrel between the accused and the deceased and on one occasion, she had slapped the deceased as well. She acted the way she did out of her short temper issues and retaliation which she was seeking against the deceased.
7. It is submitted submitted that that after inflictin inflicting g blow with with the wooden wooden stick to the the deceased, deceased, when when she went back, her friends questioned her persistently about what was wrong. However, ignoring all the questions, she chose to sleep. Even on the subsequent day, when she had the opportunity to seek help or confess to her crime, she chose to remain silent and conceal the incident happened. The accused had the time and opportunity to save the deceased but she did not even attempt to do so.
8. It is further further submitted submitted that that it was until until 8 pm on on the subsequ subsequent ent day that that the body body of deceased was found lying in a pool of blood in the auditorium by a group of students.
9. According to the post mortem report, he gradually bled to his death due to the wound at the back of his head. The accused had the opportunity but she chose to let him die due to her grudge against the deceased.
10. In Gopal and Anr. v. State of Rajasthan,ii under Section 105 of 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. 11. It is submitted that the onus of proving the plea of self-defence is upon the accuseddefendant and that the prosecution has set forth a strong case that the accused did not exercise her right of private defence in a just manner.
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ISSUE 3: THA THAT T THE DECEASED DID NOT CAUSE SUDDEN OR GRAVE PROVOCATION
1. It is submitted submitted that that the provision provision of Murder Murder as stated stated under under Sec. 300 300 of IPC also also states states exceptions wherein culpable homicide does not amount to murder. It runs as: 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 (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 (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 (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.
2. It is submitted submitted that that the exceptions exceptions deal deal with cases cases which amount amount to culpable culpable homicide homicide not amounting to murder. The first exception states that in case the death is caused due to grave and sudden provocation caused by the deceased, it shall not amount to murder. In the given case, Ridhima was locked inside the auditorium for about half an hour, from 6 pm to 6:30 pm and when she heard some movement near the door she took up the wooden stick and went up to the door. It is submitted that at this point of time, there was no provocat provocation ion from the side of deceased. deceased. She was calm and when when she hit deceased on his head with clear intentions, there was no provocation caused to her by the deceased. Further, she also had the o opportunity pportunity of saving the deceased by taking him to the hospital, but instead she left him bleeding until he died and went to her room to sleep.
Thee Supreme Court in K.M. Nanavati vs State of Maharashtra,iii has extensively 3. Th discussed the law relating to provocation in India and observed that –
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The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class to society as accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. Words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act under under exception. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence; and The fatal blow should be clearly traced to the influence of passion arising from the provocation and not after the passion has cooled down by lapse of time, or otherwise giving the accused room and scope for premeditation and calculation.
4. It is subm submit itte ted d th that at the case case in hand hand do does es no nott fa fall ll un unde derr th this is ex exce cept ptio ion n when when the passion has been cooled down by the lapse of time. There has been a time gap of half an hour since provo provocation cation was caused and the accused had the time to cool off within that period of time. However, due to her temper issues and grudge towards the deceased, she hit him in order to kill him.
ISSUE 4: THAT THERE WAS SCOPE FOR PREMEDITATION PREMEDITATION AND CALCULATION
Premeditatio Preme ditation n can be defined defined as the active intent to anticipate anticipate future events and the planned consequential reaction to those events. In this case the accused intentionally landed a blow on the back portion of the head of the deceased and never thought of reviving or complaining of
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the incident to someone. It is very well clear from the fact that the accused’s friends stated that on finding her nervousness, her friends questioned her persistently about what was wrong but she refused to answer instead she showed a very careless behavior and went to sleep; this clearly state that the accused never thought of premeditation and calculation, if she would have shown a little concern the deceased could have been saved. As far as the reaction of the accused towards the deceased is concerned, there does not seem to be any level of premeditation involved, the accused simply lost possession of self-control and landed a blow on the back portion of the head and left him there to bleed till he succumbed to death.
This very fact makes it crystal clear that the accused did premeditate his attack and purely did not acted on her consciousness.
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PRAYE
Wherefore, Wherefor e, in the light of the facts of the case, issues is sues raised, authorities cited and arguments arguments advanced, the counsels for the Prosecution humbly pray before this Hon’ble Court to kindly adjudge and declare:
THAT CHARGE OF S. 302 OF INDIAN PENAL CODE, 1860 AGAINST THE ACCUSED ARE PROVED IDHIMA GUPTA, BE CONVICTED & SENTENCED FOR THE HENCE, THE ACCUSED, R IDHIMA
CHARGE
AND/OR
Pass any other order as it may deem fit in the interest of Equity, Equity, Justice & Good Conscience.
All of which is most most humbly & respectfully respectfully submitte submitted d
S/d___________
COUNSELS FOR PROSECUTION
ix
x ENDNOTE
i
(2012) 4 SCC 1983 (2013) 2 SCC 188 iii (AIR 1962 SC 605) iv 1996 SCC (1) 458 V (2008) 15 SCC 753 ii
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