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Download memorial on criminal law and more Study Guides, Projects, Research Criminal Law in PDF only on Docsity! TC-C MEMORIAL ON BEHALF OF RESPONDENT TABLE OF CONTENT STATEMENT OF JURISDICTION ................................................................................... 7 FACTS OF THE CASE ....................................................................................................... 8 SUMMARY OF ARGUEMENTS ..................................................................................... 10 ARGUMENTS ADVANCED ............................................................................................ 11 PRAYER ............................................................................................................................. 34 TC-C MEMORIAL ON BEHALF OF RESPONDENT LIST OF ABBREVIATIONS u/s Under Section AC Appeal Cases Anr Another’s Art. Articles Co. Company Edn. Edition Hon’ble Honourable i.e. That is HC High Court SC Supreme Court NO. Number AIR All India Reporter Cri LJ / Cr LJ Criminal Law Journal Cr.P.C. Code of Criminal Procedure TC-C MEMORIAL ON BEHALF OF RESPONDENT 12. Bhagwan Din v. State, AIR 1967 ALL 580: 13. John v. State of Kerela, ILR (1969) 2 Ker 604:1969 Ker LT 488 14. State of Maharshtra v. Balram Bama Patil,1983 CrLJ 331(SC) 15. Rau Bhagwanta Hargude v. State of Maharasthra, AIR 1979 SC 1224 16. State of Rajasthan v Dhool Singh, AIR 2004 SC 1264 17. Gudar Dusadh v. State of Bihar, AIR 1972 SC 952 18. Visa Singh v. State of Punjab,AIR 1958 SC 465 19. Anil Kumar v. State,Criminal Appeal No. 489/2012 20. Faqira v. State AIR 1955 All. 321 21. Miller v. Minister of Pensions, [1947] 2 All ER 373 22. State of Punjab v. Budh Prakash A1.R. 1989 S.C. 1094. 23. Surinder Kumar v. Union Territory. Chandigarh AIR 1989 S.C. 1094 24. Sathees Kumar v. State of Kerala, 1993 S.C.Cr.R. 134 at p. 136 (Ker.). 25. Kirpal Singh u. State, A.I.R. 1951 Punj, 137 at p. 140. 26. Hans Raj Singh v. Emperor, ALR. 1946 Lah. 41 at pp. 43, 46 27. Amirthalinga Nadar v. State of Tamil Nadu (1976) 2 SCC 195 28. Bhimanna v. State of Karnataka (2012) 9 SCC 650 29. Prabhakar Vithal Gholve v. State of Maharashtra, (2016) 12 SCC 490 30. Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653) 31. Jai Prakash v. State 1991 SCR (1) 202 32. Randhir Singh v. State of Punjab, AIR 2004 SC 5097 33. State of U.P. vs. Indrajeet Alias Sukhatha, (2000) (7) SCC 249) 34. Anwarul Haq v. State of U.P. 2005 AIR SCW 2522 35. Mathai vs. State of Kerala, (2005) 3 SCC 260 36. Parahu v. State, 1961 MPLJ SN 77 37. Kamla Bai vs Naresh, (2016) 160 AIC 50 38. State of U.P. vs. Indrajeet Alias Sukhatha, 2000) (7) SCC 249 39. Mathai vs. State of Kerala, (2005) 3 SCC 260 40. Parahu v. State, 1961 MPLJ SN 77 TC-C MEMORIAL ON BEHALF OF RESPONDENT STATEMENT OF JURISDICTION The prosecution has filed the appeal against the decision of the Trial .This appeal has been filed under Section 378(1)(b) of Code of Criminal Procedure, 1973. Section 378(1)(b) provides as under - Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), - (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the High Court of Session in revision.] TC-C MEMORIAL ON BEHALF OF RESPONDENT FACTS OF THE CASE 1. Abhay Raichand was a rich businessman of the city Riverdale. He was an extremely arrogant and short- tempered by nature and was in the quarreling with everyone on petty issues also. The deceased, Rupam Singh was an athlete by profession and Abhay Raichand's immediate neighbour. 2. Both Abhay Raichand and Rupan Singh were never on friendly terms with one another. On one occasion, the deceased, Rupan Singh had kept a function in his house. However, Abhay Raichand was not invited in the function due to the nature of Abhay Raichand because of which his ego was hurt. On that day when the deceased, Rupam Singh was parking his car in front of the gate of the house of Abhay Raichand, the deceased, Rupam Singh was sternly warned by Abhay Raichand not to park the car on that place as being already irritated by the deceased, Rupam Singh.The deceased Rupam Singh refused to remove the car replying that it was not Abhay Raichand's personal property, and that the car will be removed after the function and departure of guests. 3. Abhay Raichand lost his balance of mind and slapped Rupam Singh. Both started quarreling and grapped each other, in the course Abhay Raichand gave a fist blow on the stomach of deceased, Rupam Singh and consequently appendicitis of the deceased, Rupam Singh busted, and the deceased fell down in severe pain in stomach. 4. Abhay Raichand immediately threw the deceased in the car of deceased itself and drove the car towards the nearest hospital. At the same time since a large number of cars were parked in the street, Abhay Raichand had to face difficulty to take the car out of the street and a lot of time was wasted. 5. The deceased, Rupam Singh could not be saved, and doctors gave a statement that if the deceased, Rupam Singh had been brought ten minutes early, the deceased, Rupam Singh could have been saved. Besides the medical report also mentioned that one tooth of the deceased, Rupam Singh was also found to be broken. 6. Abhay Raichand was charged with the offence of murder under Section 302 of Indian Penal Code. The Trial Court convicted Abhay Raichand only under Section 326 of Indian Penal Code for causing grievous hurt. TC-C 11 | P a g e ARGUMENTS ADVANCED ISSUE I: WHETHER THE ACCUSED, ABHAY RAICHAND HAS COMMITTED MURDER UNDER SECTION 302 OF THE INDIAN PENAL CODE? It is most humbly submitted before the Hon’ble Court that the accused has not committed murder under section 302 of the Indian penal code, 1860. ‘Actus reus non facit reum nisi mens sit rea’ is a fundamental principle in criminal law that translates to "an act does not make a person guilty unless there is a guilty mind1and guilty mind in present case is absent as it was not voluntary, also “actus me invito factus non est means actus” which, according to common law, signifies “an act done against my will is not my act. All Crimes always includes two elements ‘actus rea’ and ‘mens rea’, if any of them is absent in a particular crime then that act will not come under the ambit of Crime. In the case of Mahadeo Prasad v. State of West Bengal2, the court held that no external conduct, howsoever serious in consequences, is generally punished unless the prohibited consequence is produced by some wrongful intent, fault or mens rea. SECTION 300 OF THE IPC,1860 PROVIDES THE DEFINITION OF THE MURDER AND ENUMERATE THE INGREDIENTS OF THE OFFENCE. Section 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 1 Kartar Singh v. State of Punjab, AIR 1994 SCC 569 2 Mahadeo Prasad v. State of West Bengal AIR 1954 SC 724 TC-C 12 | P a g e (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. To constitute the offence of attempt to murder, following two ingredients of offence must be present3: • An Intention and Knowledge of committing murder- MENS REA • The doing of an act towards it- ACTUS REUS ABSENCE OF MENS REA IN THE PRESENT CASE:- Mens Rea is considered as guilty intention4,which is proved or inferred from the acts of the accused5. The Supreme Court has held that Mens Rea is an essential ingredient of a criminal offence.6 It implies a conscious desire or purpose to bring about the fatal consequences. Intent can be inferred from the circumstances surrounding the crime, the conduct of the accused, or any premeditation involved. It is presumed that every sane person intends the result that his action normally produces and if a person hits another on a vulnerable part of the body, and death occurs as a result, the intention of the accused can be no other than to take the life of the victim and the offence committed amounts to murder.7 In the present case there was no intention on the part of the accused to kill the deceased. Further, his act of driving him instantly to the hospital depicts his innocence. The Supreme Court in Ninaji Raoji Bhaudha v. State of Maharashtra8, held that: 3 Gobinda Singh v. State, AIR 1946 JLR 361 4 Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4 5 State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722 6 Nathulal v. State of M.P. AIR 1966 SC 43 7 Amrik Singh v. State of PEPSU, 1955 AIR 309 TC-C 13 | P a g e Where there is no evidence as to any intention on the part of the appellant either to cause death or have the knowledge that such injuries would be likely to cause death, it would not be justified to convict under section 302 or section 304 of IPC. In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh 9 considered these aspects and held that: "29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such Provocation; 8 Ninaji Raoji Bhaudha v State of Maharashtra, 1976 AIR 1537 9 Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444 TC-C 16 | P a g e In the case of Rau Bhagwanta Hargude v. State of Maharasthra 13, when an accused hit the deceased on a vital part of the body, the chest, with the blade of a sword, two feet in length with such force as to impair the liver and the aorta, it was held the offence was plainly one of murder. However, in the present case, the deceased was given a fist blow on the stomach which is not a vital organ. The research publishes the following as the vital organs: “The human body contains five organs that are considered vital for survival. They are the heart, brain, kidneys, liver, and lungs14” The stomach performs four main functions: mechanical digestion by contracting to smash up food, chemical digestion by releasing acid to help chemically break up food, and then absorption and secretion. The stomach is sometimes surgically removed as a result of cancer or trauma. In 2012, a British woman had to have her stomach removed after ingesting a cocktail that contained liquid nitrogen.15 When the stomach is removed, surgeons attach the oesophagus (gullet) directly to the small intestines. With a good recovery, people can eat a normal diet alongside vitamin supplements. 2. NOT COVERED BY CLAUSE II : The second clause of section 300 stipulates that if a person intentionally causes bodily injury, with the knowledge that such bodily injury will cause death of the person injured, then it will be culpable homicide amounting to murder. Thus, the mens rea or the mental attitude contemplated under clause 2 of section 300 is twofold. 1. First, there must be an intention to cause bodily harm. 2. Secondly, there must be "knowledge" that death is the "likely" result or consequence of such intended bodily injury. Here subjective knowledge matters. In State of Rajasthan v Dhool Singh16,the Supreme Court held the accused guilty of murder who inflicted an incised cut with a sword on the neck of the deceased, which led to excessive bleeding and the 13 Rau Bhagwanta Hargude v. State of Maharasthra ,AIR 1979 SC 1224 14 (https://www.ck12.org/book/ck-12-human-biology/) 15 https://www.theguardian.com/uk-news/2015/sep/17/oscars-wine-bar-lancaster-gaby-scanlon-stomach-liquid-nitrogen 16 State of Rajasthan v Dhool Singh, AIR 2004 SC 1264 TC-C 17 | P a g e consequential heart failure, on the ground that he knew that the bodily injury caused by him would likely cause death of the injured. In the case at hand, no subjective knowledge was on the part of the accused that a simple blow would lead to his appendix to burst. Hence no malice or ill intention could be imposed on the accused. 3. NOT COVERED BY CLAUSE III : In the case of Gudar Dusadh v. State of Bihar17 The court held that the essence of the clause is the sufficiency of the injury in the ordinary course of nature to cause death. When the word "sufficiency" is used, it means where there is a very high probability of the injury resulting in death. In Virsa Singh v. State of Punjab18, the Supreme Court laid down that in order to bring a case within clause (3) of section 300, the prosecution must prove the following: (1) It must establish, quite objectively, that a bodily injury is present. (2) The nature of the injury must be proved. (3) 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 some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and (4) 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. The court in the case held that merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury.19 The Supreme Court in Jai Prakash v. State20 expressed the following opinion in paragraph 13: 17 Gudar Dusadh v. State of Bihar, AIR 1972 SC 952 18 Virsa Singh v. State of Punjab,AIR 1958 SC 465 19 Randhir Singh v. State of Punjab, AIR 2004 SC 5097 20 Jai Prakash v. State 1991 SCR (1) 202 TC-C 18 | P a g e “It can thus be seen that the ‘knowledge’ as contrasted with ‘intention’ signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which the human mind remains supine or inactive. On the other hand, ‘intention’ is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore, in the case of ‘intention’ mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. In Clause Thirdly the words ‘intended to be inflicted’ are significant. As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.” It is worth mentioning here that the third element that the intention to cause the particular body injury is absent in the present case. Also, the fourth element cannot be proved as fist blow in stomach cannot in anyway be fatal. In the case of Anil Kumar v. State21, the court held that even the medical experts did not have any knowledge that a mere kick on the stomach would lead to the possibility of death. If the medical expert did not have such knowledge implicitly, it is unsafe to hold that a common man would have such a knowledge. Virsa Singh v. State of Punjab 22the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors.” In the case of Virsa Singh (supra), in paragraphs 16 & 17, it was observed and held as under: ‘16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the 21 Anil Kumar v. State,Criminal Appeal No. 489/2012 22 Virsa Singh v. State of Punjab,AIR 1958 SC 465 TC-C 21 | P a g e “unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for.” In the case at hand, the issue started because of the unreasonable demand of deceased wherein deceased, Rupam Singh parked his car in front of the gate of the house of Abhay Raichand, the deceased, Rupam Singh was sternly warned by Abhay Raichand not to park the car on that place as being already irritated by the deceased, Rupam Singh. The deceased Rupam Singh refused to remove the car replying that it was not Abhay Raichand's personal property and that the car will be removed after the function and departure of guests. Hence, it is submitted before this Hon’ble Court that since neither the knowledge, nor the intention is present in the present case. It is in the light of justice that the accused be acquitted. BURDEN OF PROOF: In the legal realm, the presumption of innocence and burden of proof are fundamental concepts essential for a fair legal system. These principles are pivotal in the Indian legal framework, ensuring justice is administered fairly. In a criminal case, the cardinal principle is that the accused is innocent till the guilt is proved beyond reasonable doubt by the prosecution. The prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. The general burden of establishing the guilt of the accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 of the Indian Evidence Act, the prosecution is not absolved of its duty of discharging the burden. Lord Denning, J. in Miller v. Minister of Pensions26, while examining the degree of proof required in criminal cases stated: "That degree is well-settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. The 'Burden of Proof' lies with the prosecution to prove the guilt of the accused beyond a reasonable doubt. In a place where there is a party and too many cars parked on the street, it's strange that no one noticed the incident. 26 Miller v. Minister of Pensions, [1947] 2 All ER 373 TC-C 22 | P a g e ISSUE II: WHETHER THE ACCUSED IS ENTITLED TO ANY EXCEPTIONS OR NOT? It is most humbly submitted before this court that the accused is entitled to exception under section 300 of Indian Penal Code, 1860. The act of the accused falls under the following exceptions: EXCEPTIONS –4 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's 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. The fourth exception covers acts done in a sudden fight. This exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle for in both there is the absence of premeditation but while in the one case there is the total deprivation of self- control; in this there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. In fact, the present exception deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. Where the accused gave a fatal blow without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and there is no evidence that the accused took any undue advantage or acted in a cruel or unusual manner but merely gave single blow on the stomach of the deceased which proved fatal, and he did not go on assaulting the deceased despite his falling down unconscious on the ground, and took him to the hospital. It is contented before this court that the word “immediately” is used i.e. he immediately took the deceased to the hospital which clearly shows that he did not act in a cruel manner and his act was not pre- mediated. TC-C 23 | P a g e In State of Punjab v. Budh Prakash27, the accused and the deceased exchanged a few hot words when the accused caught the deceased by the neck, gave him a few fists and squeezed his neck. The death of the deceased occurred in the sudden fight that ensued after the sudden quarrel. There was no premeditation. It was held that Exception 4 to Sec. 300 was applicable. The Supreme Court in Surinder Kumar v. Union Territory. Chandigarh 28held that in order to invoke Exception 4 to Sec. 300 four requirements must be satisfied. (a) it was a sudden fight. (b) There is no pre-meditation the act was done, in a heat of passion, and (c) The assailant had not taken any undue advantage or acted in a cruel manner. As for the sudden quarrel, the court said, "The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault". Heat of passion requires that there must be no time for the passion to cool down and in this case the parties have worked themselves into a fury on account of the verbal alteration in the beginning. INGREDIENTS This exception can be invoked if and only if death is caused- (a) without premeditation, (b) in a sudden fight, (c) without the offender having taken undue advantage or acted in a cruel or unusual manner, and 27 State of Punjab v. Budh Prakash A1.R. 1989 S.C. 1094. 28 Surinder Kumar v. Union Territory. Chandigarh AIR 1989 S.C. 1094 TC-C 26 | P a g e In Prabhakar Vithal Gholve v. State of Maharashtra33, it was a case of sudden fight without Premeditation. There was no proof of motive and injuries were present in the body of the accused. When injury on the appellant has also been proved there is sufficient material to infer the reasonable possibility of a grave and sudden provocation. it can be safely inferred that there was no intention on the part of the accused persons to cause death. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and that there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". The above position is highlighted in Sandhya Jadhav v. State of Maharashtra34” Heat of Passion and Momentary Impulse: It is contented that the altercation between the accused and the deceased resulted from a momentary lapse of judgment in the heat of passion. This aligns with the psychological theory that actions committed in the heat of the moment may not reflect a premeditated intent. Psychological Impact of Ego and Provocation: It is contented that the accused's actions were influenced by provocation and wounded pride due to the perceived insult at not being invited to the deceased's function. This aligns with criminology theories that suggest ego and provocation can lead to impulsive actions without a calculated intent to cause harm. In the present case, the accused's actions were not driven by a premeditated intent to cause death. The altercation arose from a heated exchange over a trivial matter, suggesting a lack of clear intention to cause 32 Bhimanna v. State of Karnataka (2012) 9 SCC 650 33 Prabhakar Vithal Gholve v. State of Maharashtra, (2016) 12 SCC 490 34 Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653) TC-C 27 | P a g e harm. The accused's mental state during the incident was influenced by the immediate provocation and the impact on his ego, contributing to a momentary lapse in judgment. Therefore, it is respectfully submitted that the circumstances of the altercation fall within the purview of Exception 4 of Section 300 of the IPC. The accused's actions were not premeditated, and the altercation occurred in the heat of passion upon a sudden quarrel, without any indication of undue advantage or cruelty. As such, the accused should be entitled to the protections afforded by Exception 4, and the charges against them should be evaluated accordingly. ISSUE III: WHETHER THE TRIAL COURT WAS RIGHT IN CONVICTING THE ACCUSED UNDER SECTION 326 OF I.P.C? It is most humbly submitted before this Hon’ble Court that the trial court was erroneous in convicting the accused under section 326 of the IPC as the ingredients of the section 326 are not fulfilled. DEFINITION OF GRIEVOUS HURT 1. "Grievous hurt has been defined under section 320 of the Indian Penal Code which reads as under:- Section 320 Grievous hurt. The following kinds of hurt only are designated as "grievous" :- First-Emasculation. Secondly- Permanent privation of the sight of either eye. Thirdly Permanent privation of the hearing of either ear. Fourthly- Privation of any member or joint. Fifthly Destruction or permanent impairing of the powers of any member or joint. Sixthly Permanent disfiguration of the head or face. Seventhly Fracture or dislocation of a bone or tooth. Eighthly 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. TC-C 28 | P a g e SECTION 322. VOLUNTARILY CAUSING GRIEVOUS HURT- Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt." Explanation. A person is not said voluntarily to cause grievous hurt except when he both causes grievous. hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. Essentials of Voluntarily Causing Grievous Hurt by Dangerous Weapons or Means: Section 32635 It is humbly submitted before this Hon'ble Court that to hold a person liable for punishment for committing the offence under sec 326 Indian Penal Code, the following ingredients must be present. These are: 1. Accused must commit an act with the knowledge that he was likely to cause grievous hurt to the victim. 2. He voluntarily caused it. No one forced him to do such an act. 3. He committed it by following means: by any instrument of stabbing, shooting or cutting: an instrument, which if used as a weapon, can cause death of a person. by fire or any other heated substance.by any poisonous or corrosive substance. by using any kind of explosive substances by using substances which are hard to swallow or inhale by a human body. It is humbly submitted before this Hon'ble Court that in order to prove a grievous injury it is necessary to prove the intention to cause such injury, moreover the burden of proof lies on the prosecution to prove it beyond reasonable doubt. 35 Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life,.... TC-C 31 | P a g e In the case of State of U.P. v. Ram Sagar Yadav37, the Supreme Court held that the term “voluntarily” implies the presence of a conscious and deliberate act on the part of the accused person. The court observed that a person can be said to have acted voluntarily only when he had control over his actions and could have chosen to act differently. The court further held that a person cannot be said to have acted voluntarily if he had no control over his actions, or if his actions were caused by some external force or compulsion. The courts have also held that the term “voluntarily” must be read in conjunction with other provisions of the IPC to determine the mental state required for the commission of a particular offence. The absence of grievous hurt coupled with the involuntary nature of the accused's actions, provoked by the deceased, mitigates the severity of the offense. It is evident that the altercation between the accused and the deceased was a result of the provocation by the latter, rather than a premeditated act of violence. THE WORD ‘DANGEROUS WEAPON” DOES NOT INCLUDE FIST BLOW. It is noteworthy to mention that the use of a dangerous weapon, which is often indicative of the intention, was absent in this case. Moreover, the dangerous weapon does not include the fist blow. The absence of such a weapon suggests that the accused's actions were not aimed at inflicting grievous injury, but rather arose spontaneously in response to the provocation. In Anwarul Haq v. State of U.P38. : The expression “any instrument, which used as a weapon of offence, is likely to cause death” should be construed with reference to the nature of the instrument and not the manner of its use. What has to be established by the prosecution is that the accused voluntarily caused hurt and that such hurt was caused by means of an instrument referred to in this section. 13. The section prescribes a severer punishment where an offender voluntarily causes hurt by dangerous weapon or other means stated in the section. The expression “any instrument which, used as a weapon of offence, is likely to cause death” when read in the light of marginal note to Section 324 means dangerous weapon which if used by the offender is likely to cause death. 37 State of U.P. v. Ram Sagar Yadav,1985 AIR 416 38 Anwarul Haq v. State of U.P, AIR 2005 SC 2382 TC-C 32 | P a g e 14. Authors of IPC observed, as noted below, the desirability for such severer punishment for the following reasons: “... Bodily hurt may be inflicted by means the use of which generally indicates great malignity. A blow with the fist may cause as much pain, and produce as lasting an injury, as laceration with a knife, or branding with a hot iron. But it will scarcely be disputed that, in the vast majority of cases, the offender who has used a knife or a hot iron for the purpose of wreaking his hatred is a far worse and more dangerous member of a society than who has only used his fist. It appears to us that many hurts which would not, according to our classification, be designated as grievous ought yet, on account of the mode in which they are inflicted, to be punished more severely than many grievous hurts.” 3. In State of U.P. v. Indrajeet Alias Sukhatha39, the Supreme Court of India held that "there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expressions "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable." In the present case, it is pertinent to note that the altercation between the accused and the deceased involved the use of a fist blow, which is commonly associated with spontaneous confrontations or sudden fights. Unlike cases where weapons are employed, the use of a fist blow suggests a lack of premeditation or deliberate intent to cause grievous harm. In Mathai v. State of Kerala40, the Apex Court opined that the expression "any instrument which, used as a weapon of offence, is likely to cause death" has to be gauged taking note of the heading of the section. What would constitute a "dangerous weapon" would depend upon the facts of each case and no generalisation can be made. In view of the judgments of Supreme Court in Anwarul Haq and Mathai (supra), it is clear that the 39 State of U.P. vs. Indrajeet Alias Sukhatha, 2000) (7) SCC 249 40 Mathai vs. State of Kerala, (2005) 3 SCC 260 TC-C 33 | P a g e heading of Section 326 IPC is important. The heading talks about causing grievous hurt by dangerous weapons or means. In view of the text and context, in which the words "any instrument" are employed in Sec. 326, in my opinion, it cannot be treated as body part. In Parahu v. State41, this Court opined that the instrument by virtue of its very nature should be such that one could reasonably predicate that by its use as a weapon of offence, death would be probable. It was something inherent in the instrument which rendered death probable. The nature and gravity of injury alone is not sufficient to attract Sec. 326 unless it is shown that such grievous hurt is by means of any instrument or weapon mentioned in the section. It is clear that as per language employed in section 326 IPC, the body part cannot be treated as an instrument. An instrument has to be an outside mean/weapon and cannot be a body part. It is trite law that a penal provision must be construed strictly. Thus, as per the express language employed, It is difficult to hold that the expression "any instrument" includes kick, fist or any other body part. Thus, no fault can be found in the order of the court below, whereby the accused were exonerated from the offence under section 326 IPC because, admittedly, in the incident no weapon/ instrument was used.42 So, it is contented before this court that the word “fist” is not a deadly weapon, and the prosecution fails to prove the guilt of the accused under this section as the ingredients are not fulfilled. Furthermore, it is imperative to highlight that the erroneous judgment rendered by the court has resulted in a gross miscarriage of justice. The misinterpretation of facts and failure to consider crucial evidence has led to an unjust outcome that has far-reaching consequences. Such a miscarriage of justice not only undermines the integrity of the legal system but also infringes upon the fundamental rights of the accused. 41 Parahu v. State, 1961 MPLJ SN 77 42 Kamla Bai v. Naresh, (2016) 160 AIC 50