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977

IN THE
HONOURABLE HIGH COURT OF HAVLOCK
AT HAVLOCK

CRIMINAL APPEAL NO. XXX/2014


[UNDER SEC. 26, 341 AND 374 OF THE CODE OF CRIMINAL PROCEDURE, 1973]

IN THE MATTER OF:

MR. SALMAN........APPELLANT
VERSUS
STATE OF HAVLOCK.........RESPONDENT

-MEMORIAL ON BEHALF OF THE RESPONDENT-

TABLE OF CONTENTS

INDEX OF AUTHORITIES..ii
STATEMENT OF FACTS...iii
STATEMENT OF JURISDICTION..iv
ISSUESFOR CONSIDERATION.....v
SUMMARY OF ARGUMENTS......vi
ARGUMENTS ADVANCED1
ISSUE 1: WHETHER THE COURT HAD THE JURISDICTION TO
TRY THE APPELLANTS IN THE ORIGINAL PETITION?......................................1
ISSUE 2: WHETHER THE APPELLANT IS GUILTY OF MURDER?.....................2
1. Whether there was culpable homicide?..............................................................2
2. Whether culpable homicide amounted to murder?.............................................4
3. Whether any defence can be taken under any exception?..................................5
PRAYER7

INDEX OF AUTHORITIES

CASES

Ashok Kumar Barik v. State of Orissa 1992 CrLJ 1849 (Ori.).

Basudev v. State of Pepsu AIR 1956 SC 488

Bhagwant Sahay v. State of Bihar AIR 2004 SC 612.

D. Yohannan v. State of Kerala AIR 1958 Ker 207.

Daya Nand v. State of Haryana AIR 2008 SC 1823.

Harbans Singh v. State of Punjab 2002 CrLJ 452 (Punjab).

M. V. Elizabeth and Ors. v. Harwan Investment and Trading Pvt. Ltd. AIR 1993 SC
1014.

Mana Gendal and Ors. v. Emperor (1930) 32 Bom LR 1143.

Moben Minji v Union Territory, 1982 CrLJ (NOC) 39 (Gau.).

Shri Appanna v. The State (2010) 4 CalLT 275 (HC).

State of Bihar v. Pasupati Singh AIR 1973 SC 2699.

State of Haryana v. Chittar Singh (1986) 45 ChandigarhLT 147

Venkappa Kannappa Chowdari v. State 1996 CrLJ 15 (Kant.).

STATUTES

Indian Penal Code, No. 45 of 1860.

TREATISES AND ARTICLES

Ratanlal and Dhirajlal, The Indian Penal Code (LexisNexis: 32nd Ed., Reprint 2011)

ii

STATEMENTS OF FACTS

Salman and Sharukh were business partners who decided to go on a business trip
which involved there travelling by ship to their destination. They were accompanied
by their respective families as well.

The workers of the ship were all foreigners but the ship was bearing the Indian flag.

The rule of the ship journey was that everyone on board had to consume a medicine
which would prevent sea sickness to all the members. This medicine contained 0.05%
of cocaine. This rule was not mandatory, but Salman took it.

At a later point of time when they were travelling there was a small altercation
between the children of Salman and Sharukh which grew to such a level that Salman
and Sharukh had to intervene.

While trying to solve the fight between the children the matter had taken such a turn
that Salman pushed Sharukh from the deck of the ship as a result of which Sharukh
died.

While the police was investigating the matter, people said that Salman was jealous of
Sharukhs success.

Hence, the present matter before this court.

iii

STATEMENT OF JURISDICTION

The counsel for the respondent most humbly and respectfully submits to the jurisdiction of
this Honourable High Court in this appeal filed under Sections 26, 341 and 374 of the Code
of Criminal Procedure, 1973.

iv

ISSUES FOR CONSIDERATION

ISSUE 1: WHETHER THE COURT HAD THE JURISDICTION TO TRY THE


APPELLANTS IN THE ORIGINAL PETITION?
ISSUE 2: WHETHER THE APPELLANT IS GUILTY OF MURDER?
4. Whether there was culpable homicide?
5. Whether culpable homicide amounted to murder?
6. Whether any defence can be taken under any exception?

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE COURT HAD THE JURISDICTION TO TRY THE


APPELLANTS IN THE ORIGINAL PETITION?
The crime committed by Salman was on a ship which was bearing the Indian flag, which is
considered to be an extension of the territory of India. As per Sec. 4 of IPC and some
previous rulings, the court has made the position of law clear by saying that any crime
committed on high seas on a ship registered in India shall be deemed to have been committed
in India.

ISSUE 2: WHETHER THE APPELLANT IS GUILTY OF MURDER?


The defendants act of throwing the victim overboard is enough to impute intention to cause
death or the intention to cause such bodily injury that is sufficient in the ordinary course of
nature to result in death or the knowledge that he is likely by such act to cause death. There is
nothing to show that the accused was in fact intoxicated and even if he was, the intoxication
was voluntary and hence the exception of involuntary intoxication does not apply.

vi

ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE COURT HAD THE JURISDICTION TO TRY THE


APPELLANTS IN THE ORIGINAL PETITION?
The act of Salman took place in the high seas on a ship bearing the Indian national
flag. The offences committed by (1) any citizen of India in any place without and beyond
India; (2) any person on any ship or aircraft registered in India wherever it may be, shall be
dealt with as per the provisions given in the Indian Penal Code.1
Any ship bearing the Indian Flag is a ship registered in India, if a ship is registered in
India, it will act as an extension of the territory of India. Any offence committed aboard such
a ship will be deemed to be an offence committed in the territorial limits of the country.2
A ship belongs to the nation whose flag that ship is flying or bearing, which in the
present case is India as is very clear from the fact-sheet.3 Any court competent to try such
matters within the territory of India shall have the requisite jurisdiction to hear the matter.4
What used to happen earlier was that the jurisdiction or the power of a court to decide on a
certain matter which took place on high seas was on the basis of the element of necessity in
the matter.5 In the present matter, it is undoubtable that the murder committed by the Salman
creates the required element of necessity for the Court of Havlock to switch to its Maritime
Law jurisdiction and try the present matter.
Hence, the Court has the requisite jurisdiction to try the defendant in this present matter.

4, Indian Penal Code, No. 45 of 1860.


Ratanlal and Dhirajlal, The Indian Penal Code (LexisNexis: 32nd Ed., Reprint 2011) 63
3
Proposition Para 2.
4
Supra note 2, at 79.
5
M. V. Elizabeth and Ors. v. Harwan Investment and Trading Pvt. Ltd. AIR 1993 SC 1014.
2

ISSUE 2: WHETHER THE APPELLANT IS GUILTY OF MURDER?


1. Whether there was culpable homicide?
The appellant and the respondent got into a brawl with each other which led to some
events and finally the death of Sharukh.6
299 of the Indian Penal Code, 1860 reads as:
Whoever causes death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide.7
The three elements that are to be proved here are:
1. The accused had the intention to cause death.
2. The accused had the intention to cause bodily injury as is likely to cause death.
3. The accused had the knowledge that he is likely, by such act, to cause death.
An act is said to cause death when death results either from the act directly or results
from consequences necessarily or naturally flowing from such act and reasonably
contemplated as its result.8 In a case, the accused assaulted the victim and then pushed him
into the sea. It was held that the accused pushing the victim into the sea after inflicting a blow
to his head was clearly with the intention of killing the victim. 9
As is clear from the facts, the accused pushing the victim off the deck of the ship
resulted in the death of the victim.10 The act of the accused, pushing the victim off the deck of
the ship into the high seas gives enough evidence of the intention of the accused to kill the
victim, which proves the presence of first element.

Proposition Para 6.
299, Indian Penal Code, No. 45 of 1860.
8
D. Yohannan v. State of Kerala AIR 1958 Ker 207.
9
Shri Appanna v. The State (2010) 4 CalLT 275 (HC).
10
Supra note 6.
7

In the case of Harbans Singh v. State of Punjab,11 the accused gave a severe blow to a
person on his head not wanting the death of that person. It was held that it may be a
possibility that the intention is absent, but if the person is of sound mind, he is reasonably
presumed to have the knowledge that such a blow may lead to the death of a person
considering how sensitive that part of the body is.12 Hence it was considered a case of
culpable homicide.
Now pushing someone off from a deck can never be unintentional. In the present
matter, the fact sheet clearly states that the accused pushed Sharukh and he fell into the sea. It
is a very reasonable thing to presume that such an act is, not likely but definitely, going to
cause the death of person, which shows the presence of the second element.
An act is intentional insofar as it exists in idea before it exists in fact; knowledge is
awareness of the consequences of the act.13 Section 86 of the Indian Penal Code specifically
says that where an offence requires a particular knowledge or intent, a person who does the
act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge
as he would have had if he had not been intoxicated.14 A person who voluntarily inflicts
injury such as to endanger life must always, except in the most extraordinary and exceptional
circumstances, be taken to know that he is likely to cause death. If the victim is actually
killed the conviction in such cases ought ordinarily to be of the offence of culpable
homicide.15
It can be reasonably inferred that the accused had the knowledge that his act of
pushing the accused will throw him overboard which will most likely cause his death.
Arguendo, the accused could not form the requisite intention to commit culpable homicide

11

Harbans Singh v. State of Punjab 2002 CrLJ 452 (Punjab).


Bhagwant Sahay v. State of Bihar AIR 2004 SC 612.
13
Supra note 2, at 1270.
14
Supra note 2, at 397.
15
Mana Gendal and Ors. v. Emperor (1930) 32 Bom LR 1143.
12

amounting to murder being in a state of intoxication, knowledge that his act of pushing the
victim overboard will result in his death can still be imputed on him.

2. Whether culpable homicide amounted to murder?


Whether or not the author of culpable homicide was actuated by intention to cause
death is a subjective element, but may be deduced from certain objective facts, circumstances
and behaviour.16 Intention is the purpose or design with which an act is done. It is the fore
knowledge of the act coupled with the desire of it.17
Section 300, fourthly states:
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.
Clubbed with thirdly, which states:
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.
It is the degree of probability of death which determines whether a culpable homicide
is of the gravest, medium or the lowest degree.18 Words used in section that bodily injury
sufficient in the ordinary course of nature to cause death indicate that death is most probable
result of the injury.19 If death is the likely result, it is culpable homicide, if it is the most
probable result, it is murder.20 Where bodily injury sufficient to cause death is actually caused

16

Supra note 2, at 1310.


Supra note 2, at 1270.
18
Id. at 1269.
19
Daya Nand v. State of Haryana AIR 2008 SC 1823.
20
Ashok Kumar Barik v. State of Orissa 1992 CrLJ 1849 (Ori.).
17

it is immaterial to go into the question as to whether the accused had the intention to cause
death or knowledge that the act will cause death.21 And even if we go with the clause
fourthly, no one would deny to the knowledge of this simple fact that that if you push
someone off a deck into the sea-water, it may lead to death of that person.
Clubbing all these things and reading it again with the fact that the accused was
overly jealous of the success of the deceased, we can deduce this fact that the accused had the
requisite intention and knowledge to cause such act and ultimately, the death of Sharukh.

3. Whether any defence can be taken under any exception?


The act in the present matter cannot fall under exception 4 of Sec. 300 and also not
under Sec. 85 and 86 of the Indian Penal Code, 1860. Evidence of premeditation can be
furnished by former grudges or previous threats and expressions of ill feeling; by acts of
preparation to kill, such as procuring a deadly weapon or selecting a dangerous weapon in
preference to one less dangerous, and by the manner in which the killing was committed.22
The act of Salman cannot be said to be the one which is a result of the heat of passion.
A small altercation between the children of the two persons could not have reached such an
extent where one could have thrown the other in an open sea. There might be some jealousy
factor between the two but it cannot be claimed as an exception under Sec. 300.
Talking of Section 85 and 86 of the Code, the burden of proof to show that the
intoxication was such as to render the accused incapable of forming intention is on the
defence. There is no evidence to show that the accused did not have the requisite capacity to
form the intention necessary to commit such a crime.23

21

State of Bihar v. Pasupati Singh AIR 1973 SC 2699.


Supra note 2, at 1384, 1385.
23
Basudev v. State of Pepsu AIR 1956 SC 488.
22

When an offence is found committed by one who is drunk under influence of liquor,
voluntary drunkenness is not an excuse.24 Section 86 of the Indian Penal Code specifically
says that where an offence requires a particular knowledge or intent, a person who does the
act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge
as he would have had if he had not been intoxicated. It is only in those rare cases where the
intoxication is due to something administered to the offender against his own wish or against
his will that the case may be covered by Section 85.25 A person under intoxicaton can be
excused if he had committed any offence provided intoxicating material was given to him
without his knowledge and consent. No person can claim the benefit of Section 85 if he takes
the things causing intoxication voluntarily.26
Also, it is stated that the medicine had 0.05% cocaine in it,27 which as per the
laboratory results of Narcotics Control Bureau is not sufficient, or even one-tenth of the
amount required for a person to be categorised as intoxicated. A minimum of 0.6% w/v is
necessary, for a first timer, in order to get intoxicated and be in a state where one cannot
judge the consequences of his act.
Even if we consider that Salman, due to his low capacity lost the control over his
senses and became intoxicated, the lab results show that the effect of such intoxication
remains for a maximum period of 30 minutes. In the fact-sheet, it is clearly stated at a later
point of time,28 which can be construed as after the passage of a number of hours talking
in relativity with the journey on a ship, which is enough to come to a conclusion that at the
time of the act, the accused was not intoxicated and was in his full senses and had complete
knowledge of his act.

24

State of Haryana v. Chittar Singh (1986) 45 ChandigarhLT 147; Moben Minji v Union Territory, 1982 CrLJ
(NOC) 39 (Gau.).
25
Supra note 2, at 397.
26
Venkappa Kannappa Chowdari v. State 1996 CrLJ 15 (Kant.).
27
Proposition Para 3.
28
Proposition Para 5.

PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly and respectfully prayed before this Honourable High Court of Havlock to:

Hold the appellant guilty of culpable homicide amounting to murder and impose the
strictest punishment which the court may deem necessary for the purpose of law.

And pass any other order in favour of the respondent which this Court may so deem fit in the
ends of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

Date:

Counsel No.

March 7th, 2014

977

Place:

Counsel on behalf of:

Havlock, India

Respondent