IN THE HONOURABLE HIGH COURT AT AHMEDABAD

ANITA
(APPELLANT)
V.
STATE OF GUJARAT
(RESPONDANT)

September 2010
Term Assignment II (Criminal Law)

MEMORIAL ON BEHALF THE APPELANT

Roll No.09BAL002

Roll No.09BAL035
 Page |2

TABLE OF CONTENTS
TITLE PAGE NO.
 List of Abbreviations 3
 Index of Authorities 4
 Statement of Jurisdiction 6
 Facts and Highlights 7
 Issues before the Court 8
 Summary of arguments 9
 Arguments Advanced 10
 Prayer 16

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 LIST OF ABBREVIATIONS
U/S Under section
AIR All India Reporter
IPC Indian Penal Code
Cr LJ Criminal Law Journal
SC Supreme Court Of India
SCC Supreme Court Cases
HC High Court
Ed. Edition
Hon’ble Honorable

INDEX OF AUTHORITIES

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 ACTS AND STATUTES
 Criminal Procedure Code,1973
 Indian Penal Code
 Criminal Law Journal

WEBSITES REFERRED
 www.manupatra.com last visited on 7th september , 2010
 www.google.com last visited on 7thseptember, 2010
 www.scjudgements.com last visited on 8th september, 2010
 www.westlawinternational.com,last visited on 8thseptember,2010

BOOKS REFERRED

1) NELSON’S R.A., INDIAN PENAL CODE, VOLUME 3, LEXIS NEXIS

BUTTERWORTHS
2) SARKAR S.C., THE CODE OF CRIMINAL PROCEDURE 1973 ED. 2007,
DWIVEDI LAW AGENCY, ALLAHABAD
3) KATHURIA’S R.P., SUPREME COURT ON CRIMINAL LAW, ED. 6
4) SINGHAL M.L. & SABIHA, INDIAN PENAL CODE 1860, ED.2, PRIMIER
PUBLISHING COMPANY.
5) SARKAR’S COMMENTARY ON THE INDIAN PENAL CODE,1860 VOLUME-1,
DWIVEDI LAW AGENCY, ALLAHABAD
Papers and Journals :-
 All India Reporters
 Supreme Court Cases {digest}

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Judicial Decisions
1. Akhtar v. State AIR1964All262
2. K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605
3. Prabhat singh Balu Vahsi Rathod Vs. State of Gujarat
4. R. v. Kiranjeet Ahluwalia
5. Girja Devi v. State of H.P.,2000 Cr LJ AT p. 1534(HP)
6. R v. Duffy,(1949)1 AII ER 932
7. Atmaram Tilak Ram v. The State A.I.R. 1967 Pun 508

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 STATEMENT OF JURISDICTION

THE COUNSELS REPRESENTING THE APPELLANT HAVE ENDORSED

THEIR PLEADINGS BEFORE THE HON’BLE HIGH COURT OF GUJARAT

AT AHMEDABAD, UNDER SECTION 374 (2) OF THE CRIMINAL

PROCEDURE CODE 1973. THE APPELANT FURTHER SUBMIT THAT THIS

HON’BLE HIGH COURT HAS JURISDICTION TO DEAL WITH THE

SUBJECT MATTER OF THE SUIT AS CAUSE OF ACTION HAS ARISEN

WITHIN THE GUJARAT.

STATEMENT OF FACTS

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 I. Anita has been married to Aman for five years. Over the last
three years, Aman has taken to going out drinking of an evening
and coming back late at night heavily drunk.

II. Anita frequently scolded him when he returned and told him she
would leave him if he did not mend his ways. Aman has a violent
temper and, on some occasions, he has hit Anita forcefully. On
other occasions, Aman has forced Anita to engage in sexual
intercourse with him despite her protests.Anita recently sought
help from a counselor who advised her to leave Aman.

III. The next time Aman came home drunk, he staggered into the
bedroom and Anita told him she was leving him the next day,
whereupon Aman punched out at her several times, breaking
some of her teeth, cutting her lip and badly bruising her.
Eventually, Aman went to sleep on the bed with Anita sobbing in
the corner of the room.

IV. Several hours later, in the early hours and whilst Aman was still
asleep in a drunken stupor, Anita went downstairs and poured
herself a couple of large brandies. She then went to the tool shed
in the garden and took out large hammer. She returned to the
bedroom and hit Aman several times about the head, killing
him.

V. She then calmly called the police and said: “You had better come
quickly-I have just murdered my husband”.

VI. Anita was arrested and questioned the next day. She made the
statement to the police. In the statement, Anita explained that
she just could not take any morew and that she had told the
counselor that she would kill Aman if he ever hurt her again.

ISSUE INVOLVED

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1. WHETHER THE APPELANT IS ENTITLED TO GET THE DEFENCE
OF PROVOCATION OR NOT?

SUMMARY OF ARGUMENTS

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1. WHETHER THE APPELANT IS ENTITLED TO GET THE
DEFENCE OF PROVOCATION.
Yes Anita is entitled to get the defense of provocation and thus should be
convicted under SECTION 304for culpable homicide not amounting to
murder.
Section 300 Exception I-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 provocations 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 provocations not given by anything done in the lawful
exercise of the right of private defence.
Therefore u/s 300 exception 1, Anita is entitled for culpable homicide not
amounting to murder.

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 ARGUMENTS ADVANCED

1. WHETHER THE APPELANT IS ENTITLED TO GET THE

DEFENCE OF PROVOCATION OR NOT?
The council on behalf of the appellant submits before the hon’ble high
court that the defense of provocation is valid which would makes the
appellant liable for culpable homicide not amounting to murder under Sec
304 of IPC.
Section 300 Exception I-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 provocations 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 provocations 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.

What is Provocation?
“Provocation is an act or series of acts done by one person to another
which could cause in a reasonable person,1 and actually cause in another,

1
40 CrLJ 778: AIR 1939 Sind 182: 183 IC 389

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 a sudden and temporary loss of self control, rendering him so subject to
passion as to make him for the moment not master of his conduct…Acts
may readily amount to provocation, or a series of affronts, or even
words.2”
Two important ingredients of provocation:

- Loss of self control

- Grave and sudden

In the case in question, Aman (the deceased) over the last three years
came late in the night heavily drunk and harassed the appellant physically,
sexually and mentally. The facts clearly state that the deceased had a
violent temper, which implies that the appellant was physically abused in
her daily life. The deceased also forced the appellant to engage in sexual
intercourse with him despite her protests. From this behavior of the
deceased it is easy to infer about the mental agony from which the
appellant was going through.
In one case where the deceased-husband was somewhat of a pervert in his
sexual habit and wanted to satisfy his perverted lust on his helpless wife
thereby forcing her to commit him to death under grave and sudden
provocation , the accused was held liable to be convicted under Section
304, Part 1 instead of Section 302,IPC.3

Therefore Anita lost her self control on the day of commission of the
crime when Aman came home heavily drunk and punched Anita several
times, giving her grievous hurt. All these acts of the deceased could be
taken as grave provocation.

2
Walker: Oxford Companion to law, edn. 1980,p.1011,per Goddard C.J. in R v. Duffy,(1949)1 AII ER
932
3
Girja Devi v. State of H.P.,2000 Cr LJ AT p. 1534(HP)
.

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 It has been held in a case;

that once if the power of self control has been lost it would be
unreasonable futile to expect one to retain such a degree of control over
himself as to exercise a choice over the weapon used by him for an attack
or to show his "mode of resentment" to bore "a reasonable relationship to
the provocation".4
Therefore Anita in the case cannot be expected to choose a weapon and
then show her resentment as she had lost her self control and her act of
taking a hammer and beating the deceased to death was done when she
had no control on her acts.

Sudden provocation.
The trial court did not consider the defense of provocation due to the
cooling off period but it has been observed in several cases that:

Whether the accused has got a cooling off period depends upon the facts
and circumstances of the case and whether the time between the
provocation and the crime would cool off a reasonable person in the
circumstances under a case.

It was observed in another case:

The impact of provocation on human frailty is to be judged in the context
of the social position and environments of the person concerned.5

In the case Anita could not be expected to act immediately when she was
provoked as after years of torture and blows to her dignity and esteem her

4
Akhtar v.state AIR1964All262
5
Atmaram Tilak Ram v. The State A.I.R. 1967 Pun 508

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 social position was deteoriated to such an extent that her husband gave her
grievous hurts instead of requesting her to stay with him when she told
him that she would leave him. So it is clear that she obviously did not
have the social position and physical strength, therefore she acted after
some time when she was in a position to act. Moreover she cannot be
expected to cool down keeping in view the environment under which she
was tortured, where she could constantly see her husband who before had
just given her grievous hurts including breaking some of her teeth, cutting
her lip and giving her several bruises and who had also harassed her
mentally, physically and sexually for three long years.

It was held in one more case6 that;

Once an offence is committed in loss of self-control, emanated out of
grave and sudden provocation at the instance of the victim of the attack, it
would fall and embrace the statutory benefit incorporated in Exception 1
to Section 300 of IPC. Of course, deprivation of self-control by a victim
on account of sudden and grave provocation at the instance of the victim
does not obliterate the character of an offence, but it would change the
type of punishment and the nature of offence from murder simpliciter to
culpable homicide not amounting to murder. Thus, the sudden and grave
provocation resulting into loss of self-control of an individual will be a
mitigating and extenuating factor which would convert the murder into a
manslaughter simpliciter or culpable homicide not amounting to murder.

In any case, provocation must be the cause and not an excuse for the
crime. Vindictive act or preparation and pre-meditation are excluded as
they are acts inconsistent with the assumption of loss of self-control.
Whether provocation was grave and sudden enough to prevent crime from
amounting to murder is a question of fact. However, one thing is certain
that an act which is sudden and in the heat of moment caused by
6
Prabhat singh Balu Vahsi Rathod Vs. State of Gujarat

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 provocation or it is done impulsively and at a time there is temporary
suspension of reason, generator or contributor of which is the victim, then,
in that case, benefit is available. The Court has to see as to whether the
accused has acted under grave and sudden provocation and whether the
provocation at the instance of the victim was in the circumstances of the
case, likely for a normal and reasonable person to lose self-control to the
extent of inflicting injury or injuries that he did inflict and while
determining whether the provocation was of that character one should take
into account the condition of mind in which the offender was at the time
of provocation.

Now it is very obvious from the very facts of the case that there is grave
provocation as Aman used to torture her from past three years and used to
do cruelty, marital rape.

A very similar case is found in common law with reference to our case7:

Kiranjit Ahluwalia entered into an arranged marriage and suffered years of

abuse from her husband. In May 1989 she threw petrol into his bedroom
and set it alight. Her husband died six days later of his burns. She was
convicted of murder on 7 December 1989 and appealed against her
conviction. The conviction was quashed.

The case has wider significance in relation to the use of provocation pleas
based on battered woman syndrome, and the seeming tendency to prefer a
plea of diminished responsibility where a woman is involved. Despite the
role of Southall Black Sisters in bringing this case to appeal, cultural
issues play no explicit part in the judgement. But where the direction at
the original trial tended to minimise the vulnerability of the defendant, the
judgement at the Court of Appeal stressed her physical slightness, state of

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R. v. kiranjeet ahluwalia

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humiliation, and loss of self-esteem, and noted that she remained in an
abusive marriage because of her ‘sense of duty as a wife’

Hence, the council on behalf of the Appellant would humbly like to

submit before this Honorable Court that the appellant is entitled to get the
defense of provocation (Grave and Sudden) which makes him guilty for
culpable homicide not amounting to murder and not murder

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 PRAYER

Wherefore in the light of the issue raised, argument advanced and

authorities cited above, it is humbly prayed that this Hon’ble Court may
graciously be pleased:

 To pass a decree in favour of the Appellant i.e. Anita helding the defense of
provocation valid which would lead to culpable homicide not amounting to
murder.

 Further be pleased to reduce the punishment of the appellant provided U/S

304 of Indian Penal Code for culpable homicide not amounting to murder.

 Or pass any such further order(s) in the favour of the Appellant as it may
deem fit.

AND FOR THIS ACT OF KINDNESS OF YOUR LORDSHIPS Appellant

SHALL AS DUTYBOUND EVER PRAY

All of which is respectfully submitted

Sd/- ______________________
Counsels for Appellant

Place: The Hon’ble High Court of Gujarat

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