TEAM CODE:

“SURANA &SURANA NATIONAL TRIAL ADVOCACY

MOOT COURT COMPETITION 2018”

OCTOBER 5, 2018 TO OCTOBER 7, 2018

In the Court of Sessions Judge, at Punnai

C.C. 100 of 2018

In the matter of

State of Sardam

(Prosecution)

v.

Mr. Deven (Accused No. 1) & Mr. Jeyant (Accused No. 2)

(Defence)

For the offences charged under:

Sections 307, 354D, 509, 325, 355, 504 and 358 of the Indian Penal Code, 1860.

Upon Submission to the Hon’ble Court of Sessions, Sardam

Memorandum on behalf of the prosecution

 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018”

TABLE OF CONTENTS

LIST OF ABBREVIATIONS --------------------------------------------------------------------------------

INDEX OF AUTHORITIES ---------------------------------------------------------------------------------

STATEMENT OF JURISDICTION -------------------------------------------------------------------------

STATEMENT OF FACTS -----------------------------------------------------------------------------------

TIMELINE OF THE CASE ----------------------------------------------------------------------------------

STATEMENT OF CHARGES -------------------------------------------------------------------------------

WITNESSES BEFORE TRIAL ------------------------------------------------------------------------------

SUMMARY OF ARGUMENTS -----------------------------------------------------------------------------

ARGUMENTS ADVANCED --------------------------------------------------------------------------------

MEMORANDUM ON BEHALF OF THE PROSECUTION

 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018”

[1.] There are material evidence to prove guilt of accused no.1 under Section 307 of I.P.C.

1872?

[1.1] The act of accused no. 1 if completed, he would be guilty of murder.

[1.2] The accused no. 1, had done the act with complete knowledge.

[2.] The accused no. 1 is liable under Section 354D and Section 509 of I.P.C.?

[2.1] Accused no.1 attempted to contact the victim to foster personal interaction repeatedly

despite a clear indication of disinterest by the victim.

[2.2] Accused no. 1 had the intention to insult the modesty of the victim.

[2.3] Accused no.1 had intruded upon the privacy of the victim.

[3]. The accused no. 2 is liable under Section 325?

[3.1] The accused no.2 has acted voluntarily and caused grievous hurt to accused no.1.

[4]. The accused no. 2 is liable charged under Section 355 and 504 I.P.C.?

[4.1] Accused no. 2 intended to dishonor accused no. 1, as he had no grave and sudden

provocation.

[4.2] Accused no.2 has intentionally insulted knowing that his actions can break public peace.

[5.] Unknown persons are liable charged under Section 358 of I.P.C.?

PRAYER ----------------------------------------------------------------------------------------------------

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LIST OF ABBREVIATIONS

1. Supreme Court SC

2. High Court HC

3. Himachal Pradesh H.P.

4. Andhra Pradesh A.P.

5. Son of s/o

6. Wife of w/o

7. Patna Pat.

8. Criminal Procedure Code Cr.P.C.

9. Dravidian Penal Code D.P.C.

10. Others Ors.

11. Article Art.

12. Dravidian Evidence Act D.E.A

13. First Information Report F.I.R.

14. Versus V.

15. Bombay Bom.

16. Karnataka Kant.

17. Union of India U.O.I.

18. All India Report AIR

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19. Page Pg.

20. Kerala Ker.

21. Edition Ed.

22. Excise Law Times ELT

23. Criminal Law Journal Cr.L.J.

24. Supreme Court Cases SCC

25. Bombay Bom.

26. Supplementary Suppl.

27. Supreme Court Report SCR

28. Section Sec.

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INDEX OF AUTHORITIES

A. BOOKS

1. I, Basu D.D. Cr.P.C. 1973, (5th Ed. Lexis Nexis).

2. II, Basu D.D. Cr.P.C. 1973, (5th Ed. Lexis Nexis).

3. Ramasubramaniyam P., Criminal Major Act 2013.

4. Gaur K.D., Indian Penal Code, 1860.

5. Williams & Glanville, Criminal Law, (2nd Ed. 2011).

6. Sarkar, Law of Evidence, (17th Ed. 2011).

7. Ratanlal & Dhirajlal, The Law of Evidence, (23rd Enlarged Ed. 2011).

8. Ratanlal & Dhirajlal, The Indian Penal Code, (31st Enlarged Ed. 2006).

9. Ratanlal & Dhirajlal, The Code of Criminal Procedure, (17th Ed. 2010).

10. Malik, Shailender, The Code of Criminal Procedure, (8th Ed. 2011).

11. Monir, M., Law of Evidence, (5th Ed. 2010).

12. Lal, Batuk, Law of Evidence, (5th Ed. 2011).

13. Kelkar, R.V., Criminal Procedure, (5th Ed. 2009).

14. IV, Sarvaria, S.K, Indian Penal Code, (10th Ed. 2008).

15. III, Sarvaria, S.K, Indian Penal Code, (10th Ed. 2008).

16. II, Sarvaria, S.K, Indian Penal Code, (10th Ed. 2008).

17. Monir, M., Law of Evidence, (10th Ed 2017).

B. LEXICONS

1. Garner Bryana, Black’s law Dictionary, 7th Ed. 1981, West Group.

2. Collin’s Gem English Thesaurus, 8th Ed, 2016. Collins.

3. Catherine Soanes, Oxford Dictionary Thesaurus, 40th Ed, 2006, Oxford University Press.

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C. LEGISLATIONS / CODES / STATUTES

1. The Code of Criminal Procedure, 1973 (Act No. 2 of 1974).

2. The Indian Evidence Act, 1872 (Act No. 1 of 1872).

3. The Indian Penal Code, 1860 (Act No. 45 of 1860).

D. LEGAL DATABASE

1. www.scconline.com

2. www.lexisnexis.com

3. www.manupatra.com

4. www.heinonline.com

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STATEMENT OF JURISDICTION

The prosecution has approached the Hon’ble Court of the Sessions at Punnai under section

177 of Cr.P.C r/w section 209 of Cr.P.C.

Section 177: Ordinary place of inquiry and trial.

Every offence shall ordinarily be inquired inland tried by a Court within whose local

jurisdiction it was committed.

Section 209: Commitment of case to Court of Session when offence is triable exclusively by

it.

When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by

the Court of Session, he shall-

a) Commit the case to the Court of Session.

b) Subject to the provisions of this Code relating to bail, remand the accused to custody

during, and until the conclusion of, the trial;

c) Send to that Court the record of the case and the documents and articles, if any, which are

to be produced in evidence;

d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.

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STATEMENT OF FACTS

1. Deven and Pooja were students at Trinity Engineering College, Vanjiyur. Pooja belonged

to higher caste while Deven belonged to a backward community. Both were fond of each

other. After college Deven, Pooja went to Punnai to grab their respective jobs. Pooja

stayed with Divya while Deven shared room with Kishore.

2. Pooja’s close friend Kavita and other friends, made fun of her choice of boyfriend and so

Pooja decided to sever all ties with Deven. Deven made many attempts to talk to her and

so she decided to meet him one last time.

3. On Friday June 9, 2017 she invited Deven to meet where she revealed her plans of

becoming an air hostess. This made Deven upset and so he tried to dissuade her but it was

all in vain. This infuriated him and he abused her and told her dress and her behavior

shows she is losing her character. This made Pooja angry and she slapped Deven because

of which he felt humiliated and quietly left.

4. On 10th June 2017 at around 11:45 PM Deven called Pooja to ask for her apology, but

when he was unable to do the same a Whatsapp message was sent asking for a brief

meeting so that he can ask for apology. Pooja replied him on 11th June 2017 to meet her

next day morning at Indira Nagar metro station.

5. On 12th June 2017 Deven reached the place at 09:30 AM and Pooja along with Kavita at

09:45 AM. Deven recalled the old days and to recreate the magic brought out the pen knife

to cut the Apple. This panicked Jeyant and Kavita and Jeyant came shouting murder,

murder and threw a stone that hit Deven on head and he started to bleed. All of this

panicked the public and everyone approached towards Deven menacingly. Deven caught

hold of Pooja and held knife against her neck and asked everyone to back off.

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6. Jeyant threw another stone while Deven tried to run pulling Pooja to which she resisted

and the knife slashed her neck and wounded her shoulder. Public overpowered Deven and

he was brutally beaten.

7. Deven was charged under IPC sections 307 for attempted murder, 354D for stalking and

Section 509 for Word, gesture or act intended to insult the modesty of a woman. Jeyant

was charged under IPC Sections 325 for voluntarily causing grievous hurt, under section

355 for Assault or criminal force with intent to dishonor person, otherwise than on grave

provocation & Section 504 for Intentional insult with intent to provoke breach of peace.

The unknown persons who attacked Deven were also charged under section 358.

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TIMELINE OF THE CASE

List of Dates

Date and Time Event

2012- 2015 College life in Vanjiyur

2016 All three move to Punnai for their jobs

9th June 2017 at 08:00 PM Pooja meets Deven to tell her plans

10th June 2017 at around Deven calls Pooja to ask for apology

11:45 PM

11th June 2017 at around Deven Whatsapp messages Pooja asking for a brief meeting

02:00 AM

11th June 2017 at around Pooja text messages Deven and says to meet next day

02:30 PM morning at Indira Nagar metro station.

12th June 2017 at 09:30 AM Deven reaches Indira Nagar metro station

12th June 2017 at 09:45 AM Pooja reaches Indira Nagar metro station along with Kavita

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STATEMENT OF CHARGES

Accused No. 1

Mr. Deven has been charged under sections 3071, 354D2 & 5093 of Barat Penal Code, 1860.

Accused No. 2

Mr. Jeyant has been charged under sections 3254, 3555 & 5046 Barat Penal Code, 1860.

1
Attempt to murder.
2
Stalking.
3
Word, gesture or act intended to insult the modesty of a woman.
4
Punishment for voluntarily causing grievous hurt.
5
Assault or criminal force with intent to dishonour person, otherwise than on grave provocation.
6
Intentional insult with intent to provoke breach of the peace.

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WITNESSES BEFORE TRIAL

S. No. Name of the Witnesses Occupation/Relation

1. Mr. Deven Accused 1

2. Mr. Jeyant Accused 2

3. Ms. Pooja Victim

4. Mr. Prakash Investigating Officer

5. Ms. Kavita Victim’s Friend

6. Mr. Kannan Was beside the Accused 1. at Crime

Scene

7. Mr. Karan Accused 1’s friend

8. Mr. Kishore Accused 1’s Roommate

9. Mr. Alex Waiter at the hotel where victim

slapped Accused 1.

10. Ms. Radhika Psychologist

11. Mr. Sushant Magsistrate

12. Mr. Pandidurai Local Leader

13. Extra1 -

14. Extra2 -

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SUMMARY OF ARGUMENTS

ISSUE-I

[1]. There is material evidence to prove guilt of accused no.1 under Section 307 of I.P.C.

1872?

It is reverently submitted in this Hon’ble Session Court that accused no. 1 (Mr. Jeyant) is

guilty under § 307 of the Barat Penal Code, 1860. The submission is two folded firstly; the

act of the accused was to cause death of the victim, secondly, accused no. 1 had complete

knowledge that his act can cause death of the victim.

ISSUE-II

[2.] The accused no. 1 is liable under Section 354D and Section 509 of I.P.C.?

It is reverently submitted in this Hon’ble Court that accused no. 1 (Mr. Jeyant) is guilty under

§§ 354D and 509 of the B.P.C. The two elements of § 354D are clear indication of disinterest

from side of victim and the conduct of the accused must not be reasonable and justified which

are satisfied by Jeyant’s act. The prosecution will also prove that the accused no.1 has

intentionally insulted the modesty of the victim and he is guilty under § 509 of B.P.C.

ISSUE-III

[3]. The accused no. 2 is liable charged under Section 325?

ISSUE-IV

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[4]. The accused no. 2 is liable charged under Section 355 and 504 of I.P.C.

ISSUE-V

[5]. The unknown persons can be held liable charged under Section 358.

ARGUMENTS ADVANCED

ISSUE-I

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[1.] THERE IS MATERIAL EVIDENCE TO PROVE GUILT OF ACCUSED NO.1 UNDER SECTION 307

OF I.P.C. 1872.

It is humbly submitted to the Honourable Court that the accused is liable under section 307 of

the Indian Penal Code, 1872. Attempt is an intentional preparatory action which fails in its

object – which so fails through circumstances independent of the person who seeks its

accomplishment.7 Both the important ingredients under section 307 of the Indian Penal Code,

1860 are satisfied in the present situation. The important ingredients are namely:

(i) the doing of an act towards it; and

(ii) an intention of or knowledge relating to commission of murder the doing of an act

towards it.8

[1.1] Act of accused no. 1 was to cause death

It is humbly submitted before the Honourable court that the act of accused no. 1 was to cause

death of the victim. The ‘act’ referred to in this section, does not mean only any particular,

specific, instantaneous act of a person; it denotes to s 33, IPC, a series of acts as well. Act does

not mean only any particular, specific, instantaneous act of a person but denotes a series of

acts.9 An ‘act’ generally means something voluntarily done by a person. ‘Act’ is a

determination of the will, producing an effect in the sensible world.10

7
Luxman, (1899) 2 Bom LR 286.

8
Sumersingh Umedsingh Rajput v. State of Gujarat, 2008(1) A.C.R. 1 at p. 4 (S.C.); Banna Lal v. State of

Rajasthan, 2012 (3) W.L.C. 448 at p.452 (Raj.); Rajju Pathak v. State of U. P., 2012 Cr.L.J. 3399 at p. 3403 (All.);

Raje v. State of M.P., 2012 (3) Crimes 709 (M.P.); Gobinda Singh v. State, 1946 JLR 361.

9
Om Prakash v. State of Punjab AIR 1961 SC 1782; overruling Empress v. Niddha ILR 14 All 38, Re R Mac-

crea ILR 15 All 173.

10
Ratanlal & Dhirajlal, The Indian Penal Code, 32nd Enlarged Edition, LexisNexis.

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It is not necessary that injury, capable of causing death, should have been inflicted. What is

material to attract the provisions of section 307 is the guilty intention or knowledge with which

the act was done, irrespective of its result. The intention and knowledge are the matters of

inference from totality of circumstances and cannot be measured merely from the results. 11 In

the present case, the act of Deven of holding the knife against the neck of Pooja is capable of

causing death.12 Any reasonable man would have thought that placing a knife so close to

anyone’s neck can cause death of that person and Deven, being a highly educated individual

would very well knew that it is imminently dangerous to place a knife so close to anyone’s

neck and it is a certainty that the knife will injure the neck of Pooja and the injury caused will

in all probability cause death as it is for sure that Pooja will try to resist the act by Deven and

she will panic seeing all the crowd and her friends around and her life being in danger. Any

reasonable person will do some or other movements in situations where his or her life will be

in danger and so the act of resistance by Pooja was reasonable and it must have been a thought

in Deven’s mind and so placing a knife so close to neck made it a certainty that even slightest

of movements from Pooja will lead to her death.

[1.2] Accused no. 1 had complete knowledge that his act can cause death of the victim

Intention and knowledge are a man’s state of mind; direct evidence thereof except through his

own confession cannot be had; and apart from confession they can be proved only by

circumstantial evidences.13 Whether a person intended to kill another would depend on the

facts and circumstances of each case.14

11
Ansarudin v. State of Madhya Pradesh, (1997) 2 Crimes 157 (MP).
12
Moot Proposition, para. 18
13
Gour, H.S., Penal Law of India Vol. 3, 11th Edition, page 3130, para. 4.
14
GandaramTaria v. State, 1982 Cr.L.J. 1229 at p. 1233 (Orissa).

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Knowledge means awareness or understanding especially of an act, a fact, or the truth or

awareness that a fact or circumstance probably exists.15 The question of intention to kill or the

knowledge of death in terms of section 307 is a question of fact and not one of law. It would

all depend on the facts of a given case.16 In the present case the facts clearly suggest that Deven

had complete knowledge that his act is imminently dangerous and can cause the death of Pooja

in all probabilities. The nature of the weapon used, manner in which it is used, motive for the

crime, severity of the blow, the part of the body where the injury is inflicted are some of the

factors that may be taken into consideration to determine the intention. 17 Deven was holding

the knife near the neck of Pooja as he very well knew that this act of his can make the public

disrupt and he can easily escape. The act of holding knife near neck was to show the public

that he can very easily kill Pooja if anyone comes near to him and this clearly indicates that he

was having the knowledge that his act can cause the death of Pooja.

Further, the intention, which brings a case within s 307, IPC, must be inferred from the totality

of all the facts and circumstances of a case.18

In Suraj Prakash v. State, the accused persons allegedly poured acid into the mouth and threw

some acid on his face. Victim due to corrosive injuries received became completely blind and

15
https://dictionary.findlaw.com/definition/knowledge.html
16
Vasant Virthu Jadhav v. State of Maharashtra, (1997) 2 Crimes 539 (Bom).
17
Hari Kishan v. State of Haryana, AIR 1988 SC 2127: 1989 CrLJ 115: (1988) 3 Crime 541: (1988) 4 SCC 551.

Where in a scuffle between accused and the victim as per medical report none of vital organs of victim was injured,

it would be accepted that the accused had knowledge that by inflicting injuries he would be causing the death of

the victim whereas really he had no intention to cause the death. It was held that an attempt to commit such offence

is punishable as attempt to commit culpable homicide u/s. 308 and conviction u/s. 307 would be improper,

Tukaram Gundu Naik v. State of Maharashtra, 1994 CrLJ 224 (SC): (1994) 1 SCC 465: 1994 SCC (Cri) 432.
18
Maqbulan v. State of Uttar Pradesh (1965) All LJ 1128, (1965) All WR (HC) 829; Surinder Singh v. State

(1967) 78 PLR 867 (FB).

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not being mentally alert could not state each and every fact of the incident properly but still the

accused were held liable for attempt to murder considering the seriousness of the act.19

Therefore even if the part of direct intention is absent but the person knows it to be a probability

and it is of such a severe nature then he will be held liable and it is the same even in the case

before us.

Therefore, the act of Accused no. 1 was accompanied with proper knowledge of the

consequences of the act that he was doing and so there exists both act and knowledge to commit

murder. Hence accused no. 1 is liable under section 307 of Indian Penal Code, 1860.

ISSUE - II

[2]. The accused no. 1 is liable under Section 354D and Section 509 of I.P.C.?

The accused no. 1, Deven is liable under section 354 D and section 509 of the Indian Penal

Code, 1860.

[2.1] Accused no. 1 is liable under section 354D of the Indian Penal Code, 1860.

Section 354D of the Indian Penal Code, 1860 states, ‘Stalking – (1) Any man who – (i) follows

a woman and contacts, or attempts to contact such woman to foster personal interaction

repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic

communication,

Commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who pursued it proves that

19
Suraj Prakash v. State, 2008 CrLJ 597 (HP). Medical report stated that victim would have died had he not been

given timely treatment. Conviction under Section 307 was held proper, Kanshi Ram v. State, 2008 CrLJ 884 (HP).

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(i) it was pursued for the purpose of preventing or detecting crime and the man accused of

stalking had been entrusted with the responsibility of prevention and detection of crime

by the state; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by

any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.’20

The said section clearly indicates that there are two important questions to be answered in order

to prove the liability of accused no. 1, Deven:

(i) Whether there was clear indication of disinterest from Pooja to Deven?

(ii) Whether such conduct was reasonable and justified on the part of accused no. 1, Deven?

[2.1.1] There was clear indication of disinterest from Pooja to Deven.

In Santosh kumar Mandal v. State, the accused used to call the victim continuously despite his

contact number was added to the block list by the victim and he used to insist her to meet

once.21 In the present case also Pooja was not answering Deven’s calls and was even not

meeting him and was ignoring when she use to see him outside her office, these things clearly

show that she was not interested in Deven and since Deven knew that she was not answering

to the calls and ignoring him even when she saw him outside his office shows that this

disinterest from Pooja was clearly indicated to Deven. Further conveyance of clear indication

of disinterest can also be known when Pooja reminded him in the restaurant that she had told

him many times not to pester her with messages and calls and he never heeded to that warning.22

[2.1.2] Conduct of Deven was not reasonable and justified.

20
Indian Penal Code (45 of 1860), $ 354D(1).
21
Santosh Kumar Mandal v. State, 2016 SCC OnLine Del 5378.
22
Moot Proposition, para. 10.

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The term reasonable is a generic and relative one and applies to that which is appropriate for

a particular situation23 while the showing of an adequate reason, in court, why a defendant

committed an offense for which he or she is accused that would serve to relive the defendant

of liability is known as justification.24 In the present case there is no such justification that can

be accepted to relive the accused from the offence committed by him. There was a clear

indication of disinterest by the victim, Pooja but still the defendant carried on with his acts of

continuously calling her and waiting outside her office in order to have a talk with her.

Further the act of the accused no. 1, Deven is of a grave and serious nature as it has caused

serious mental injury to the victim, Pooja so there is no reason that can justify his conduct or

can term him conduct as reasonable.

[2.2] Accused no. 1 is liable under section 509 of Indian Penal Code, 1860.

Section 509 of I.P.C. states, ‘Word, gesture or act intended to insult the modesty of a

woman – Whoever, intending to insult the modesty of any woman, utters any word, makes any

sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or

that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such

woman, shall be punished with simple imprisonment for a term which may extend to three

years, and also with fine.’25

This section enacts an offence because it causes annoyance to the woman, and it therefore finds

place in the chapter which deals with the offences of criminal intimidation, insult and

annoyance.26

23
https://legal-dictionary.thefreedictionary.com/reasonable
24
https://legal-dictionary.thefreedictionary.com/justification
25
Section 509, Indian Penal Code (45 of 1860).
26
Balmakund Ram v. Ghansam Ram, I.L.R. 22 Cal. 398; Permanundo Shaba v. Barindabar Chung, I.L.R. 22 Cal.

994.

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The section 509 has two important ingredients of which one is necessary to be proved to make

any person liable under the section, namely:

(i) Intending to insult the modesty of woman; and

(ii) Intrudes upon the privacy of woman.

In the present case accused no. 1, Deven has intentionally insulted the modesty of victim, Pooja.

The word modesty is not be interpreted with reference to the particular victim of the act, but as

an attribute associated with female human beings as a class. It is virtue which attaches to female

on account of her sex.27

Any word spoken or sung, picture or figure exhibited which suggests lewd thoughts is immoral

and insulting to female modesty, unless the woman was a consenting party to it. The acts which

are done intending to insult the modesty of a woman which may not necessarily involve even

any physical advances are also brought within the sweep of section 509 of the Indian Penal

Code, 1860.28 This means that any physical advances is not something very important and just

words from any person that is immoral and insulting to female modesty then the person will be

liable under section 509 of the Indian Penal Code and the same was done by accused no. 1,

Deven.

On Friday, 9th June 2017 at the restaurant where Pooja invited Deven to meet he was infuriated

by Pooja’s decision of joining air hostess course and abused her and told that her dress and

behavior shows she is losing her character.29 The word modesty in section 509 of the Indian

Penal Code means accepted notions of womanly modesty and not the notions of the woman

against whom the offence was committed.30 The words that are spoken by accused no. 1, Deven

27
Gour, H.S., Penal law of India Vol. 3, 11 th edition page. 3412, para. 6.
28
Haries v. State of Kerala, 2005 (3) Ker.L.T. 400 at p. 405.
29
Moot Proposition, para. 9.
30
State of Punjab v. Major Singh, 1967 AIR 63, 1966 SCR (2) 286.

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is of such a nature that would outrage the modesty of any woman and it was not something that

would have hurt only the victim, Pooja.

Further, the reaction from Pooja of slapping Deven shows how badly she was hurt from the

words of Deven.31 To say to a woman that she is losing her character is insulting her modesty

and this act is immoral as any reasonable man would know that this is something not to be said

but it was by accused no. 1, Deven and so it was something intentional on his part. Deven was

in his senses as there has been no such act before by anyone because of which he would lose

his senses and so everything said and done by him was intentional.

Also, the reaction of the victim, Pooja of slapping Deven shows the seriousness and the effect

the words have caused and how much immoral in nature those words were.

Therefore the words of the accused no. 1, Deven were intentional, immoral and insulting to the

modesty of any women and so he should be held liable under section 509 of the Indian Penal

Code, 1860.

[3.] WHETHER THE ACCUSED NO. 2 CAN BE CHARGED UNDER SECTION 325

OF I.P.C. ?

It is humbly submitted before the Hon’ble Court that accused no.2 Mr. Jeyant is liable for

punishment under Section 325 r/w Section 320 of I.P.C.32 1860, on a careful reading of section

320, 322, 325 and 335 shows that, a person can be made liable for punishment under section

325 only if the essential ingredients are fulfilled:-

i.) That accused caused grievous hurt to any person or knows himself to be likely to cause

it.33

31
Moot Proposition, para. 10.

32
Indian Penal Code, 45 of 1860

33
Aas Mohammad vs. State, 2015 SCC Online Del 9756

MEMORANDUM ON BEHALF OF THE PROSECUTION

 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018”

ii.) That hurt was caused voluntarily.34

iii.) That such a case was not provided for by Section 335 I.P.C.

[3.1.] The accused no.2 has caused grievous hurt to accused no.1.

The reading of section 320(8) of I.P.C shows that ‘any hurt which endangers life or which

causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to

follow his ordinary pursuits.’

Jeyant threw a stone on Deven’s head making it to bleed35, another stone was thrown at Deven

and also he kicked him in the abdomen which made him unconscious and critically injured.36

The hurt caused to Deven comes within injuries specified under section 320 and thus, this

section will apply37 making Jeyant guilty of the offence. If the intention or knowledge is

present, the offender is guilty of the offence even though the result of his act might be to cause

only some injury38 or no injury at all.39

[3.2.] Accused No.2 voluntarily caused grievous hurt to Deven.

The offence of grievous hurt is not caused unless the offender both causes grievous hurt and

intends, or knows himself to be likely, to cause grievous hurt.40 A combined reading of section

321 of I.P.C. and the explanation of section 322 make it clear that either the ingredients of

34
Section 322,I.P.C. of 1860.

35
Paragraph 18, Moot Proposition.

36
Paragraph 20, Moot proposition.

37
Mathai v. State of Kerala AIR 2005 SC 710, (2005) Cr LJ 898(SC); Prabhu v. State of Madhya Pradesh AIR

2009 SC 745, JT 2008(13) SC 72.

38
Public Prosecutor v. Kolangaret, 29 I.C (Mad.) 670; Ghulam Qadir v. Emperor , AIR 1937 Lah. 619 at p. 620.

39
Bharat Dubev. Emperor, AIR 1941 Pat.51 at P.53.

40
Ramkaran Mohato v. State, AIR 1958 Pat 452.

MEMORANDUM ON BEHALF OF THE PROSECUTION

 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018”

intention or of knowledge must be essentially present in order to constitute the offence of

grievous hurt.41 Motive prompts a man to form an intention. Intention and knowledge in many

cases merge into each other,42 Knowledge is awareness of consequences. The demarcation line

is thin but they connote two different things.43 Intention also includes foresight of certainty.44

In the present case the act of throwing the stone on head of Deven by Jeyant shows that he had

the clear intention that if he uses the stone to hit the head of Deven the injury would be more

fatal and also when he was kicking Deven, he chose the abdomen part as a result of which he

became unconscious and critically injured.45The intention is the crux of the matter46 and the

clear intention of Deven clearly shows he is liable for punishment.

In order to attract Section 322, I.P.C., the court has to see that the accused intended to cause

hurt, or that he knew that grievous hurt was likely to cause and that grievous hurt is actually

caused. In the case the grievous hurt was caused and the accused should have known that his

violent action is likely to cause hurt. Nothing more is needed to bring the offence under Section

322, I.P.C.47s

[3.3.] The act of Jeyant does not qualify under Section 335 of I.P.C.

41
Devasahayam, (1962) 1 MLJ 161.

42
Ankush Shivaji Gaikwad v. State of Maharashtra 2013 6 scc 770(6); Ravi v. State of Rajasthan ((1996) 2 SCC

175 : AIR 1996 SC 787)

43
Basadev v. State of Pepsu, AIR 1956 SC 488 : 1956 SCR 363 : 1956 CrLJ 919.

44
Ratanlal & Dhrajlal, The Indian Penal Code 32 (V R Manohar, 2014)

45
Paragraph 20, Moot Proposition.

46
Jagmalsingh v. State of Rajasthan, 1980 Cr. L. R. 446 at p.448(Raj.); State of Tamil Nadu v. Karappuswamy,

1993 (1) Cr. L.C .51 at pp. 56, 57 (S.C.).

47
Param Dev v. State of H.P., 1975 CrLJ 1346(HP) : ILR (1975) HP 54.

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 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018”

The essential ingredients of Section 335 of I.P.C are-

i.) Accused must have voluntarily caused grievous hurt.

ii.) The should be grave and sudden provocation.

There must be some evidence of a specific act or words of provocation resulting in a loss

of self control. A loss of self control caused by fear, panic, sheer bad temper or

circumstances would not be enough.48

[3.3.1] The provocation was not grave and sudden.

The applicability of the doctrine of provocation49 rest on the fact that it brings about a

sudden and temporary loss of control.50 The accused no.2 Mr. Jeyant fails the test of

reasonable man51which states that provocation must be such as will upset not merely a

hasty, hot tempered and hyper sensitive person but would upset also a person of ordinary

sense and calmness.52

The (PW-) Mr. Kannan revealed that by the time the stone hit Mr. Deven, he has wiped his

tears. Thus, the question of sudden provocation is out of question, because the stone has already

hit Mr. Deven, and also when the mob led by Jeyant charged towards Deven he was the first to

kick and the blows were straight to the abdomen area, which clearly shows the intent of

Accused no. 2 Mr. Jeyant to cause grievous hurt to Mr. Deven.

[4]. The accused no. 2 is held liable charged under Section 355 and 504 I.P.C.

48
R. v. Acott (1977) 1 WLR 306 : (1997) 1 All ER 706 (p. 712-713).

49
Yusuf v.. State of U.P., 1973 CrLJ 1220 : 1973 All LJ 111.

50
Ibid.

51
Ibid.

52
Dhanno Khan v. State of UP. AIR 1957All 317 : 1957 CrLJ 498.

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 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018”

[4.1] Accused no. 2 intended to dishonor accused no. 1, without there being any grave and

sudden provocation.

In Babulal v. State of Madhya Pradesh53 and Section 355 of I.P.C. state must that to fulfill the

ingredients i.e. the assault or use of criminal force must have been committed with specific

intent to dishonor the victim. The accused Mr. Jeyant in absence of grave and sudden

provocation54 from Mr. Deven, used force55 which makes him liable under this section

[4.2] Accused no.2 has intentionally insulted knowing that his actions can break public peace.

After joint reading of section 504 and Chakradhar Patnaik v. Benudhar Patnaik56 the essential

ingredients of the offence are (i.) there should be an act or conduct on the part of the accused

which may amount to an intentional insult,57 (ii.) the said intentional insult, so caused, should

be such as to give provocation to the person insulted and the provocation given should be of

such a nature as would cause the person, who is given provocation, to break the public peace

or to commit any other offence

PRAYER

Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it is

most humbly prayed and implored before the Hon’ble Court of Session, Agharam:

53
(1980) MPWN 236.
54
Sheodin Hari Prasad v. Juwni AIR 1927 Nag 47, 27Cr LJ 1003.
55
Re Periasami (1970) LW (Cr) 167.
56
1973 Cut LT 1186.

57
Ibid.

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 SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2018”

To convict accused no. 1, Mr. Deven for the offence of

Also

To convict accused no. 2, Mr. Jeyant for the offence of

And

Pass any such order that this Hon’ble Court deems fit in the interests of justice, equity and

good conscience.

Place: Punnai All of which is respectfully submitted.

Date:7th October, 2018 TC-

Counsels for the prosecution.

MEMORANDUM ON BEHALF OF THE PROSECUTION