A TEAM- 5

SECTION C
MOOT PROBLEM-5
LAW CENTRE-2 (3RD YEAR, 2020)

On Submission to
THE HON’BLE HIGH COURT OF BOMBAY
At Mumbai.

THE APPEAL FILED UNDER

SECTION 378 OF THE CODE OF CRIMINAL PROCEDURE (Cr.P.C.)
CRIMINAL APPEAL NO________/20

IN THE MATTER OF

THE STATE OF MAHARASHTRA..........................................APPELLANT

V.
JEROME.....................................................................................RESPONDENT

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS.

COUNSELS APPEARING FOR THE APPELLANTS:

ANIRUDDHA MAHADEVAN SETHI- 188571

SIMRAN GILL- 188576
PRAVEEN AGRAHARI- 188580

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 TABLE OF CONTENTS

TABLE FOR ABBREVIATIONS........................................................................................................3

TABLE OF AUTHORITIES................................................................................................................4
STATEMENT OF FACTS....................................................................................................................6
STATEMENT OF JURISDICTION....................................................................................................8
STATEMENT OF ISSUES...................................................................................................................9
SUMMARY OF ARGUMENTS.........................................................................................................10
ARGUMENTS ADVANCED................................................................................................................9
 Issue 1: Whether or not the respondent harbor any intention to kill the deceased?........11
 Issue 2: Whether or not the actions of the respondent can be justified under right of
private defence provided for in Indian Penal Code, 1860?.................................................13
 Issue 3: Whether or not the respondent can be convicted for culpable homicide
amounting to murder?............................................................................................................18
PRAYER...............................................................................................................................................21

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 TABLE FOR ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And
AIR All India Reporter
Co. Company
Cr. P.C Code of Criminal Procedure, 1973
Ed. Edition
Hon’ble Honourable
IPC Indian Penal Code, 1860
Ors. Others
SC Supreme Court
S. Section
St. Saint
v. Versus
U.P. Uttar Pradesh
SCC Supreme Court Reporter
MLJR Madras Law Journal Reports
Mad. Madras High Court
Crl. Criminal
SCR Supreme Court Reporter
M.P Madhya Pradesh
Cri LJ Criminal law Journal
p. Page

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 TABLE OF AUTHORITIES.
INDIAN CASES

Jai Prakash v State( Delhi Administration) 1991 SCR (1) 202,...............................................11

Pulicherla Nagaraju @ Nagaraja ... vs State Of A.P Appeal (Crl.) 945 of 2004....................11
Bhagwan Bahadure vs State Of Maharashtra..........................................................................12
Mahesh Balmiki @ Munna vs State Of Madhya Pradesh Dated 27/08/1999..........................12
Yogendra Morarji v. State Of Gujarat AIR 1980 SC 660........................................................13
Jai Dev v. The State Of Punjab 1963 AIR 612.........................................................................13
Onkarnath Singh And Ors. v. The State Of U.P 1974 AIR 1550..............................................13
Deo Narain v. State of U.P AIR 1973 SC 473..........................................................................13
Bhanwar Singh & Ors vs State Of M.P Criminal Appeal NO. 300 OF 2007..........................15
Triloki Nath & Ors. vs State Of U.P Appeal (Crl.) 1150 of 2004............................................15
In State of U.P. v Ram Swarup 1974 AIR 1570........................................................................15
Cherubin Gregory v. The State Of Bihar 1964 AIR 205..........................................................17
State of M.P. v. Ram Prasad AIR 1968 SC 881;............................................................................... 18
Gyarsibai W/O Jagannath vs The State 1953 CriLJ 588.........................................................19
Emperor v. Mushnooru Suryanarayana Murthy (1912) MLJR 333 (Mad.).............................19

FOREIGN CASES
Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA
204….....................................................................................................................................16

STATUTES
 Indian Penal Code, 1860
 Code of Criminal Procedure, 1973

TEXT-BOOKS
 KI Vibhute, PSA Pillai’s Indian Penal Code, (LexisNexis, Gurugram, 13th ed., 2018)
 Ratanlal & Dhirajlal, Indian Penal Code (PB), 375 (LexisNexis, 36th Ed., 2020)

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 WEBSITES

 https://indiankanoon.org/
 https://main.sci.gov.in/

OTHER AUTHORITIES
Henry Campbell Black, Black’s Law Dictionary, 885 (4thth ed, West Publishing Co., St. Paul,
Minnesota, 1968)...............................................................................................................................14

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 STATEMENT OF FACTS

1) Mr. Jerome (hereinafter referred to as ‘respondent’) is a famous Paralympian athlete

of international fame and repute. He has participated and represented India and won several
international medals in various disabled and abled body games in various competitions
including the Olympics and won gold medals in Paralympics. He is in contact with charities
and has been awarded with honorary doctorate for his humanitarian work in world of
prosthetics. Miss Maria (hereinafter referred to as the ‘deceased’) was a young successful
model of great natural beauty.

2) The Respondent and the deceased were involved in a romantic relationship since
November 2012. The deceased used to have sleepovers at Respondent’s place. The
respondent lived in a secured complex known as Silver Woods Estate in Mumbai. One such
sleepover took place on 13th February 2013. However, in the early hours of the following
morning, screams, gunshots, loud noises, and cries for help were heard from the
Respondent’s house.

3) Within minutes a Mr. Raj and a Dr. Dilip who is a medical practitioner came to the
Respondent’s House. There they found the respondent in a highly emotional state, kneeling
alongside the deceased who was lying on the floor at the foot of the stairs leading to the
sleeping quarters of the house. She had been carried there by the respondent from an upstairs
bathroom where the shooting had taken place. She had been shot several times and was
mortally wounded. The severity of her injuries was such that she was not breathing, and Dr
Dilip was unable to find a pulse. A FIR was registered against the respondent charging him
under Section 302 of the IPC for Murder.

4) In the trial court, the respondent stated that he had woken up in the early hours of the
morning and sat up. The room was dark, but he was aware of the presence of the deceased
who was sleeping in the bed next to him and spoke to him. He got out of the bed and went
to the balcony to get two fans from the balcony into the room, closed and locked the sliding
doors and drew the curtains. The room was very dark, and the only source of light was a
small LED on an amplifier kept on the TV cabinet.

5) The respondent then heard a sound of a window opening in the bathroom which is situated
not exactly adjacent to the bedroom but is down a short passage lined with cupboards. He
thought that there was an intruder in the washroom who has entered his house through the

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

balcony window via a ladder. He quickly grabbed his 9mm pistol and whispered to the
deceased to get down and call the police. He was not wearing his prosthetics at that time and
was overcome with fear due to which he started screaming and shouting both for the intruder
to get out and for the deceased to get down on the floor and call the police.

6) On reaching near the entrance of the bathroom, the respondent stopped shouting so
that the ‘intruder’ does not become aware of his exact location. As he went near the
bathroom, he heard the toilet door slam. Peering around the wall at the end of the passage, he
saw that there was no one in the bathroom itself but that the toilet door was closed. He
alleged that at that point he started screaming again, telling the deceased, who he presumed
was in the bedroom, to phone the police. He then heard a noise coming from inside the toilet
and promptly fired four shots at the door.

7) After that the respondent retreated to the bedroom where he found that the deceased
was no longer there. It then dawned on him that it could be her in the toilet. When, the
respondent finally unlocked the toilet door, he found the deceased slumped with her weight
on the toilet bowl. She was not breathing. He held her and pulled her out of the bathroom
before telephoning the other two resident of the estate, Mr Raj and Dr Dilip, followed by
the calls made to the paramedic organizations for ambulance and the estate’s security by the
respondent.

8) The respondent pleaded in the trial that he cannot be held guilty of murdering the
deceased because he had no subjective intention to cause her death as he did not know that
the deceased was in the toilet. He was under the belief that the deceased was in the bedroom
the whole time while the intruders were in the toilet. The counsel for the respondent
emphasized the respondent’s physical disabilities, the fact that he had not been wearing his
prostheses at the time and that he had thus been particularly vulnerable to any aggression
directed at him by an intruder. His counsel argued that it had to be inferred that he must have
viewed whoever was in the toilet as a danger hence there was a genuine belief of an
imminent attack upon him.

9) The Court of Session convicted the respondent for culpable homicide not amounting
to murder holding that there was no intention to kill the person behind the door. He had shot
the deceased believing that she was an intruder. The respondent was under the erroneous
belief that his life was in danger therefore cannot be found guilty of murder. Aggrieved by
the decision of the trial court the State has made an appeal to the High court.

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 STATEMENT OF JURISDICTION

The present appeal is being filed by the appellants under the provisions that correspond to
Section 378 of the Cr.P.C. The Appellants respectfully submit to the jurisdiction of this
Hon’ble court.

The section invoked is reproduced hereunder-

Section 378 in The Code of Criminal Procedure, 1973

378. Appeal in case of acquittal.

(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub-
sections (3) and (5), 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 acquittal passed
by any Court other than a High Court or an order of acquittal passed by the Court of Session
in revision.]

(2) If such an order of acquittal is passed in any case in which the offence has been
investigated by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present an appeal, subject to the
provisions of sub- section (3), to the High Court from the order of acquittal.

(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with
the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the
High Court, on an application made to it by the complainant in this behalf, grants special
leave to appeal from the order of acquittal, the complainant may present such an appeal to
the High Court.

(5) No application under sub- section (4) for the grant of special leave to appeal from an
order of acquittal shall be entertained by the High Court after the expiry of six months, where
the complainant is a public servant, and sixty days in every other case, computed from the
date of that order of acquittal.

(6) If in any case, the application under sub- section (4) for the grant of special leave to
appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie
under sub- section (1) or under sub- section (2).

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 STATEMENT OF ISSUES

1) Whether or not the respondent harbor any intention to kill the deceased?

2) Whether or not the actions of the respondent can be justified under right
of private defence provided for in the Indian Penal Code, 1860?

3) Whether or not the respondent can be convicted for culpable

homicide amounting to murder?

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 SUMMARY OF ARGUMENTS

Issue 1: Whether or not the respondent harbor any intention to kill the deceased?

It is humbly submitted before this Hon’ble Court that the judgement of the Hon’ble Session’s
Court has convicted the respondent for ‘culpable homicide not amounting to murder’ on the
grounds that the respondent did not harbor any intentions for killing the deceased. It is
submitted that the Hon’ble Sessions court has erred in its said judgement as the facts of the
case along with relevant case laws reveal that the respondent did have the intention of killing
the deceased.

Issue 2: Whether or not the actions of the respondent can be justified under right of
private defence provided for in the Indian Penal Code, 1860?

It is humbly submitted before this Hon’ble Court that the respondents have taken the plea that
his actions are justified under right to private defence as he thought that his life was in danger
from imminent attack. However, it is humbly submitted that there was no danger whatsoever
to the life of the respondent, which could have induced the respondent to think that he was
legally justified in killing the deceased. The respondent stands in complete violation of all
the provisions mentioned in relevant sections of the IPC which deal of right of private
defence.

Issue 3: Whether or not the respondent can be convicted for culpable homicide
amounting to murder?

It is submitted before this Hon’ble Court that the respondent should be held guilty of murder
under Section 300 fourthly or IPC read with section 301 of the IPC. The respondent when
firing 4 shots at the deceased with his 9mm pistol committed an act which he knew was so
imminently dangerous that it must in all probability cause death or cause such bodily injury
as is likely to cause death. Furthermore, this act was done without any reasonable excuse.
Moreover, under these sections it is not necessary that the actions of the respondent had to be
directed to cause death of a particular person even then the respondent can be held guilty for
murder.

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 ARGUMENTS ADVANCED

Issue 1: Whether or not the respondent harbor any intention to kill the deceased?

1.1) It is submitted that the Hon’ble Sessions court when passing its final decision, came
to the conclusion that the respondent did not harbor any intention of killing the respondent
and therefore the respondent was held liable under ‘culpable homicide not amounting to
murder’. It is humbly submitted that the facts of the case present a contrary scenario.

1.2) The definition of Intention has been comprehensively dealt with in Jai Prakash v
State( Delhi Administration)1 wherein the Hon’ble Supreme Court stated that intension is a
conscious state in which the mental faculties are aroused into activity and summoned into
action for achieving a conceived goal. It is the shaping of one’s conduct to bring about a
desired event. No one can intend to do a thing without desiring it to happen. The Hon’ble
Court further quoted Kenny in "Outline of Criminal Law" (17th Edition at page 31) who has
defined intention as –

"Intention: To intend is to have in mind a fixed purpose to reach a desire objective; the noun
`intention' in the present connexion is used to denote the state of mind of a man who not only
foresees but also desires the possible consequences of his conduct.”

1.3) The facts of the present case clearly reveal that the relationship between the
respondent and the deceased was not all hunky-dory. The text messages exchanged between
the respondent and the deceased clearly expose the chinks in their bond. It is submitted that it
was on the pretext of one such argument that the respondent took the ghastly step of actually
killing the deceased by shooting at her multiple times through the door of the toilet cubicle
where she had fled to hide from the respondent.

1.4) It is submitted that in Pulicherla Nagaraju @ Nagaraja ... vs State Of A.P2, the
Hon’ble Supreme Court had observed that deaths can arise from even the most trivial matters
which do not contain usual motives like revenge, greed, jealousy or suspicion. On the other
hand, there are cases of murder where the respondent attempts to evade the punishment for
murder by claiming that he/she had no intention to cause death. Thus, the court needs to
examine the facts of the case closely so that the wrongdoer is convicted in the correct

1
: 1991 SCR (1) 202, 1991 SCC (2) 32
2
Appeal (Crl.) 945 of 2004

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

sentence. Therefore, the court should observe utmost care and caution when deciding the
question of intention. 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 respondent 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 there was any prior enmity or whether the
deceased was a stranger (vi) respondent has taken undue advantage or has acted in a cruel
and unusual manner; (vii) whether the respondent dealt a single blow or several blows.

1.5) In Mahesh Balmiki @ Munna vs State Of Madhya Pradesh3 and Bhagwan

Bahadure vs State Of Maharashtra4 the Hon’ble Supreme Court held that, factors such as
the nature of the injury, , (i) the weapon used, (ii) the size of the weapon (iii) the
circumstances in which the injury is caused and (iv) the manner in which the injury is
inflicted (v) The place where the injury took place are all relevant factors which may go to
determine the required intention of the offender and the offence committed by him.

1.6) It is submitted that in the present case, the respondent shot the deceased with a 9mm
pistol which is a dangerous firearm. The facts of the case reveal that the respondent clearly
knew the location of the gun and did not have any difficulties in locating the same. The
respondent fired multiple times at the deceased and thereby caused mortal injuries to the
deceased. The injuries caused to the deceased were so severe that she was not breathing, and
the medical practitioner could not find a pulse on the deceased. All these clearly show that
the respondent has taken undue advantage and executed his act with utmost cruelty and in an
unusually barbaric manner.

1.7) It is therefore submitted that on a conjoint reading of facts of the case with the above
mentioned case laws clearly establish that the respondent did harbour the desire of killing the
deceased and acted accordingly to fulfil his evil plans thereby revealing his intensions of
killing the deceased.

3
Decided on 27/08/1999
4
Appeal (crl.) 1304 of 2007

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

Issue 2: Whether or not the actions of the respondent can be justified under right of
private defence provided for in the Indian Penal Code, 1860?

Right of Private Defence to body.

2.1) It is submitted that the respondent had argued in the trial court that he had shot the
deceased in self- defence as he perceived a danger of imminent attack from an intruder. It is
humbly submitted that facts of the case reveal that such an argument militates against the
very jurisprudence of the right of private defence.

2.2) It is submitted that several principles regarding the exercise of right of private defence
of body have been enumerated by the Hon’ble Supreme Court in catena of judgements such
as Yogendra Morarji v. State Of Gujarat5; Jai Dev v. The State Of Punjab6; Onkarnath
Singh And Ors. v. The State Of U.P7.; Deo Narain v. State of U.P.8 to name a few. In
these judgements, the Hon’ble Apex Court has stated that even though the right of private
defence has been exercised in good faith, it is not free from limitations. Firstly, the right of
private defence is available only against those acts which are in themselves offence under the
IPC.9; Secondly, the right commences as soon as and not before a reasonable apprehension of
danger to the body arises from an attempt or threat to commit some offence although the
offence may not have been committed and it continues with the duration of such
apprehension (S.10210). This means that right avails only against a danger which is imminent,
present and real and not remote or imaginary. Thirdly, it is a defensive and not & punitive,
vindictive, or retributive right. No one is to inflict more harm than what is necessary for the
purpose of defence (S. 9911). Fourthly, the right extends to the killing of the actual or
potential assailant when there is a reasonable and imminent apprehension of the atrocious
crimes enumerated in the seven clauses of Section 10012. Fifthly, Right of Private Defence is
not available when recourse from the authorities can be sought or when there is an
opportunity for retreat.

5
AIR 1980 SC 660
6
1963 AIR 612
7
1974 AIR 1550
8
AIR 1973 SC 473
9
The Indian Penal Code, (Act 45 of 1860)
10
The Indian Penal Code, (Act 45 of 1860), S.102- Commencement and continuance of the right of private
defence of the body. (see p. 46 of compendium)
11
The Indian Penal Code, (Act 45 of 1860), S.99, - Acts against which there is no right of private defence.
(see p. 45 of compendium)
12
Indian Penal Code (Act 45 of 1860), S.100- When the right of private defence of the body extends to causing
death. (see p.45-46 of IPC)

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

2.3) It is evident from the reading of the abovementioned judgements that right to private
defence of body can extend to the killing of the assailant only when the respondent is
subjected to or apprehends an assault which creates a reasonable apprehension in the mind
of the respondent that his life or limb are under danger which is real and imminent and not
imaginary. However, such exercise of right to private defence is governed by the restrictions
mentioned under S.99 of the IPC.

2.4) In the present case, the respondent has argued that he fired the shots because he was
under reasonable apprehension that his life was under ‘imminent danger’ from the person
inside the bathroom. The phrase ‘Imminent danger’ has been eloquently defined in Black’s
Law Dictionary to be-

“IMMINENT DANGER- In relation to homicide in self-defence, this term means immediate

danger, such as must be instantly met, such as cannot be guarded against by calling for the
assistance of others or the protection of the law.13”

2.5) It is submitted that the facts of the case evidently show that the respondent was under
no threat of imminent attack which could have caused a reasonable apprehension in his mind
of his life being in danger. It is evident from the facts of the case that the door of the toilet
was closed throughout the incident and the respondent did not make any attempt to discern
the identity of the person in the washroom. Therefore, it was unreasonable for the respondent
to have presumed that the person in the toilet intended to be an imminent danger to his life
and limb. Furthermore, there was no assault or attack on the respondent which is the first
requirement to activate the right of private defence as mentioned in S.102 of IPC. Therefore,
no situation ever arose which could have caused to generate any reasonable belief in the
respondent, who, even though was in panic, could have thought that he was legally justified
in using such extreme force to defend himself.

2.6) It is further submitted the respondent states that it was only after he shot the person in
the washroom and came back into his room that he realized that the deceased was not inside
the bedroom and that it could have been her in the washroom. The facts of the present case
clearly show that the respondent called out to the deceased three times to hide and call for the
police. It can be reasonably assumed from the facts of the above case that the respondent
heard no response from her. Therefore, the respondent should have first ascertained the

13
Henry Campbell Black, Black’s Law Dictionary, 885 (4thth ed, West Publishing Co., St. Paul, Minnesota,
1968)

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

whereabouts of the deceased before he fired the shots. The behavior of the respondent was
clearly beyond the range of reason. Furthermore, the respondent lived in a secure complex
and thus should have known that the possibility of someone climbing a ladder and entering
his house without being seen and caught is remote. Thus, the course of action adopted by the
respondent violates the innate rationality possessed by a sane human being.

2.7) It is argued by the respondent that he took such an extreme step as he felt vulnerable
to any aggression at that time as he is physically disabled and was not wearing his prosthetics
at the time of the incident. However, it is humbly submitted that the respondent was in
possession of a 9mm. gun and was sufficiently armed to repel any danger which would have
arisen. It is further submitted that by firing not one but four shots from a lethal weapon, the
respondent has used excessive force in so called self-defence. It must also be noted that the
respondent fired the four shots without even thinking it fit to first fire a warning shot. Such an
act is a clear violation of S. 99 of the IPC which clearly states that no one can use force
greater than that which is sufficient to repel the threat.

2.8) It is therefore submitted that in the present case there was no cause for the respondent
to possess any reasonable apprehension to his life and limb and thus the respondent cannot
claim protection under the right of private defence. In Bhanwar Singh & Ors vs State Of
M.P 14 The Hon’ble Supreme Court has held that “There is no right of private defence where
there is no apprehension of danger.” Furthermore, the respondent is clearly the aggressor in
present case which further disqualifies the respondent from claiming protection under right of
private defence. In Triloki Nath & Ors. vs State Of U.P.15 it has been held by the Hon’ble
Supreme Court that that Right of Private defence is not available to an aggressor. In State of
U.P. v Ram Swarup16, The Hon’ble Supreme Court has held that right to private defence
cannot be availed of as a defence by a person who stage manages a situation and uses the
right to justify his aggression.

2.9) To further substantiate the inapplicability of right of private defence to the present
case, it is submitted that the facts of the case show that the person within the toilet had never
even stepped out, before the respondent shot the person dead. It is therefore evident that the
respondent had enough time to make a retreat and/or take the help of authorities. Thus, the
respondent has clearly violated the restrictions on the exercise of right to private defence as

14
CRIMINAL APPEAL NO. 300 OF 2007.
15
AIR 2006 SC 321
16
AIR 1974 SC 1570

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

enshrined in S.99 of the IPC. This disqualifies the respondent from availing the protection of
right of private defence.

2.10) It is submitted that Director of Public Prosecutions, Gauteng v Pistorius17 is a

famous case of South Africa, the facts of which bear close resemblance to the case at hand. In
this case the famous Paralympic athlete Oscar Pistorius shot and killed his girlfriend as he
had mistaken her to be an intruder when she had gone to the toilet in the middle of the night.
Mr. Pistorius fired four rounds at her with his 9mm Pistol. The bullets pierced through the
toilet door and hit her leading to her death. The trial court had convicted Mr. Pistorius for
culpable homicide not amounting to murder as he had shot his girlfriend in self-defence,
mistaking her to be an intruder and erroneously thinking that his life was under danger of an
imminent attack. The Hon’ble Supreme Court of South Africa set-aside this conviction and
convicted Mr. Pistorius for murder.

2.11) While rejecting the respondents claim for right of private defence, the Hon’ble judge
held that even if the respondent believed that there was someone else in the toilet, his
apprehension that such a person was a danger to his life was not the conclusion of any
rational thought. The respondent did not know who was behind the door and did not know
whether that person posed any threat to him. In these circumstances, although he may have
been anxious, it is inconceivable that a rational person could have believed he was within his
rights to at this person with a heavy calibre firearm, without taking even the most elementary
precaution of firing a warning shot.

Right To defence of Private property

2.12) The respondent has further argued that the person behind the washroom, whom he
erroneously perceived to be an intruder posed a threat to his property and that his actions can
be justified under S.10318 of the IPC. It is however submitted that this defence too falls on
shaky grounds. Exercising right to private defence of property, like right to private defence to
body, is saddled by the restrictions mentioned under section 99 of the IPC. As stated above,
the actions of the respondent clearly violate those restrictions, which disentitle the respondent
from taking protection under right to private defence of property.

17
(96/2015) [2015] ZASCA 204
18
Indian Penal Code (Act 45 of 1860), S.103 - When the right of private defence of property extends to causing
death (See p. 46 of compendium)

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

2.13) It is further submitted that as per S.103 read with S.9719 of the IPC, the right to
private defence of property only arises in those situations where property is under threat from
theft20, robbery21 and criminal trespass22. All three offences require the doer of these to
possess the intention to cause harm to the property of the respondent. The facts of the present
case clearly show that the respondent did not know who was behind the door and thus could
not have possibly gauged the intention of the person to cause any harm to the property.

2.14) It is further submitted that in common law, that even if there had been a trespasser
then also the actions of the respondent would have been unjustified and illegal. In in
Cherubin Gregory v. The State Of Bihar23, the Hon’ble Apex court has stated that, even
though trespassers enter the property on their own risk and that the owner of the property
owes no duty of care to the trespassers yet, the owner of a property cannot inflict personal
injury via direct violence or indirect violence (by setting traps) on the trespasser.

2.15) It is therefore submitted that the present case contains nothing which can grant the
respondent the protection under right to private defence of body or property. Right to private
defence can only be availed off when an imminent danger or reasonable apprehension of such
danger has arisen. There must be a reasonable ground of apprehension and every
apprehension of a rash or timid mind will not justify the exercise of right of private defence.24
The defence has failed to produce any reasonable ground to justify the actions of the
respondent under right to private defence, for no danger arose which could have qualified as a
reasonable ground for the apprehension in the mind of the respondent. It is humbly submitted
that an unrestricted right to defend is bound to be reduced to “might is right” rule and shall
create anarchy and severe law and order problems25.

2.16) Therefore, it is humbly submitted that the acceptance of the respondent’s plea of right
to private defence shall be a great disservice to the interests of justice.

19
Indian Penal Code (Act 45 of 1860) S.97- Right of private defence of the body and of property
(see p. 45 of compendium)
20
Indian Penal Code (Act 45 of 1860), S.378- Theft (see p. 48 of compendium)
21
Indian Penal Code (Act 45 of 1860), S. 390- Robbery (see p. 50 of compendium)
22
Indian Penal Code (Act 45 of 1860), S. 441 Criminal trespass (see p. 51 of compendium)
23
1964 AIR 205.
24
Ratanlal & Dhirajlal, Indian Penal Code (PB), 375 (LexisNexis, 36th Ed., 2020)
25
KI Vibhute, PSA Pillai’s Indian Penal Code, 153 (LexisNexis, Gurugram, 13th ed., 2018)

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

Issue 3: Whether or not the respondent can be convicted for culpable homicide
amounting to murder?

3.1) It is humbly submitted before this Hon’ble High Court that the respondent is liable
under Section 300 (fourthly)26 of IPC.

3.2) Section 300 (fourthly) of IPC reads:.—"If the person committing the act knows that it
is so imminently dangerous that it must, in all probability, cause death, or such bodily injury
as is likely to cause death, and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.”

3.3) The question before this Hon’ble Court is whether the rash and reckless act of the
respondent of shooting with a 9 mm gun from the other side of the door without any
immediate apprehension of danger is so imminently dangerous that in all probability it will
cause death of a person?

3.4) In the facts before us, the respondent is claiming that he had an apprehension that
somewhere was behind the door, and it is an undeniable fact that any person shooting at the
door with a 9 mm pistol and with the full knowledge that there is someone behind the door
has knowledge that he/she will cause death by such act.

3.5) The present facts are very similar to the illustration (d) of 300(4): A without any
excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of
murder, although he may not have had a premeditated design to kill any particular individual.

3.6) This clause also provides for that class of cases where the acts resulting in death are
calculated to put the lives of persons in jeopardy without being aimed at any one in particular,
and are perpetrated with a full consciousness of the probable consequences, e.g., where death
is caused by firing a loaded gun into a crowd.27

3.7) The person shooting from behind the door to a person has the knowledge that his act
is so imminently dangerous that it will cause death despite having no intention to kill.

3.8) The Hon’ble Apex Court in State of M.P. v. Ram Prasad28 has held that although
this clause is usually invoked in those cases where there is no intention to cause the death of
any particular person, the clause may on its terms be used in those cases where there is such

26
Indian Penal Code (Act 45 of 1860), S. 300 - Murder. (see p. 53 of compendium)
27
Ratanlal & Dhirajlal, Indian Penal Code (PB), 1033 (LexisNexis, 36th Ed., 2020)
28
AIR 1968 SC 881 [LNIND 1967 SC 358]: 1968 Cr LJ 1025.

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

callousness towards the result and the risk taken is such that it may be stated that the person
knows that the act is likely to cause death or such bodily injury as is likely to cause death.

3.9) In the land-mark case Gyarsibai W/O Jagannath vs The State29, The Hon’ble High
Court of Madhya Pradesh when analysing the scope of Section 300 Fourthly of IPC stated
that “Every sane person is presumed to have some knowledge of the nature of his act. This
knowledge is not negatived by any mental condition short of insanity…… The words used in
Clause 4 of Section 300, Penal Code are "without any excuse for incurring the risk of
causing death or such injury as aforesaid". These words indicate that the imminently
dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided
without doing the act, then there can be no valid justification for doing the act which is so
imminently dangerous that it must, in all probability, cause death or such injury as is likely to
cause death”

3.10) Hence, with the facts before us, it is clear that the respondent that the knowledge that
there is someone behind the door, he acted negligently and rashly by shooting from behind
the door, and he had the knowledge that his act is so imminently dangerous that it will cause
death. Inter Alia, he had the knowledge that he will cause the death of a person who so ever it
might be.

3.11) The contention of the respondent is that he had no intention or Mens Rea to cause the
death of the deceased and therefore, cannot be held guilty for murder.

3.12) In the landmark case of Emperor v. Mushnooru Suryanarayana Murthy30, the

facts of the case applies to our contention, wherein the respondent had no intention to cause
the death of the his deceased niece, nevertheless, was held liable under S. 302 IPC.

3.13) The case illustrates the doctrine of transferred malice under Section 30131, which
reads; 301. Culpable homicide by causing death of person other than person whose
death was intended.—If a person, by doing anything which he intends or knows to be likely
to cause death, commits culpable homicide by causing the death of any person, whose death
he neither intends nor knows himself to be likely to cause, the culpable homicide committed

29
1953 CriLJ 588
30
(1912) MLJR 333 (Mad.)
31
Indian Penal Code (Act 45 of 1860), S.301 of IPC- Culpable homicide by causing death of person other than
person whose death was intended. (see p. 54 of compendium)

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

by the offender is of the description of which it would have been if he had caused the death of
the person whose death he intended or knew himself to he likely to cause”. The court
observed that:

“The language is perfectly general; all that it requires is that there should be an intention to
cause death or a knowledge that death is likely to be the result, and there is nothing in reason
which, in my opinion, would warrant us in saying that the homicidal intention or knowledge
must be with reference to the life of the person whose death is actually caused.”

“…..the section does not require that the offender should intend to kill (or know himself to be
likely to kill) any particular person. It is enough if he causes the death” of any one, whether
the person intended to be killed or any one else. This is clear from the first illustration to the
section, A lays sticks and turf over a pit, with the intention of thereby causing death, or with
the knowledge that death is likely to be thereby caused Z believing the ground to be firm,
treads on it, falls in and is killed. A has committed the offence of culpable homicide. 32”

3.11) The rule makes it clear that culpable homicide may be committed by causing the
death of a person whom the offender neither intended, nor knew himself to be likely, to kill.
The rule then goes on to state that the quality of the homicide, that is, whether it amounts to
murder or not, will depend on the intention or knowledge which the offender had in regard to
the person intended or known to be likely to be killed or injured, and not with reference to his
intention or knowledge with reference to the person actually killed.

3.12) On the basis of aforestated submissions, it is evident that the respondent had the
knowledge that he will cause death of the person and hence liable under 300(4) IPC. Whether
or not he had the intention to cause death of the deceased is immaterial under the doctrine of
transferred malice.

Hence, the respondent must be held liable for murder under section 300 and 30233 of IPC.

32
Emperor v. Mushnooru Suryanarayana Murthy (1912) MLJR 333 (Mad.)
33
Section 302 of IPC- Punishment for murder (see p. 54 of compendium)

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS

 PRAYER

Wherefore in the light of the facts stated, issue raised, authorities citied and arguments
advanced, and in the interests of justice, the appellant most humbly prays this Hon’ble
Court may be graciously pleased to direct:

a) That the respondent is held guilty for Murder under section 302 of the Indian
Penal Code, 1860

b) Pass any other order, direction or relief that this Hon’ble Court may be deemed
fit in the interest of Justice, Equity and Good Conscience.

And for this, the appellants as in duty bound shall humbly pray.

SD/-

Counsels For Appellant.

WRITTEN MEMORIAL ON BEHALF OF THE APPELLANTS