MEMORANDUM ON BEHALF OF APPELLANT

MOOT COURT– 2023

BEFORE THE HON’BLE

High Court of India

____________________________________________________________

Presented matter under Section 374 of the Code of Criminal Procedure, 1973

MR. Ravi Shakar

(Appellants)

VERSUS

State of Maharashtra
(Respondents)

APPEAL UNDER SECTION 374 OF CODE OF CRIMINAL PROCEDURE 1974

AGAINST THE SESSION COURT JUDGEMENT IN HON’BLE BOMBAY HIGH
COURT

MEMORIAL FOR THE APPELLANT

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MEMORANDUM ON BEHALF OF APPELLANT

Under the guidance of: Prof. Radhika Rodrigue

Submitted by: -

Name: Elaine Fargose

Class: T.Y. L.L.B

Semester: 5th Semester

Roll No: 213034

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 MEMORANDUM ON BEHALF OF APPELLANT

TABLE OF CONTENTS Page No.

LIST OF ABBREVATION 4

INDEX OF AUTHORITIES 5

1. BOOKS

2. STATUTES

3. WEBSITES

TABLE OF CASES 6

STATEMENT OF JURISDICTION 7

STATEMENT OF FACTS 8&9

STATEMENT OF ISSUES 10

SUMMARY OF ARGUMENTS 11

ARUGUEMENTS ADVANCED 12 to 21

PRAYER 22

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MEMORANDUM ON BEHALF OF APPELLANT

LIST OF ABBREVATIONS

AIR All India Reporter

Anr. Another

Bom Bombay High Court

Crim Criminal Law Journal

LJ
Cr.P.C Criminal Procedure Code

DW Defence Witness

HC High Court

IEA Indian Evidence Act

IPC Indian Penal Court

Ors. Others

Pg. Page Number

PW Prosecution Witness

r/w Read With

s. Section

SC Supreme Court

Scc Supreme Court Cases

Under Section

v. Versus

Vol. Volume

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 MEMORANDUM ON BEHALF OF APPELLANT

LIST OF AUTHORITIES

STATUTES: -
• The Indian Penal Code 1860

• The Code of ‘Criminal Procedure, 1974

• Indian Evidence Act, 1572

BOOKS

WEBSITES : -
www.scconline.com
www.livelaw.com
www.bar&bench.com
www.legalserviceindia.com
https://indiankanoon.org

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 MEMORANDUM ON BEHALF OF APPELLANT

TABLE OF CASES
Balaka Singh v. State of Punjab, AIR 1975 SC 1962 13

Darshan Singh v. State of Punjab & Anr., (2010) 2 SCC 333 14

Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947 is

Puran Singh v. State of Punjab, AIR 1975 SC 1674 14

R. v. Deana [1909) 2 AC (HL) 75 (appeal taken from Eng.) 14

Raj Singh v. State of Punjab, (1993) SCC Online P&H 612 14

Rampal Singh v. State of U.P., (2012) 8 SCC 12

Reg V. Govinda, (1877) ILR 1 Bonn 342 12

Saddik & Ors. V. State of Gujarat, (2016) 10 SCC 663 12

Siryan v. Emperor, 17 Crim LJ 270 14

Sivapada Senapaty v. State, AIR 1969 Cal 28 14

State of Orissa v. Rabindranath Dalai and Anr., (1973) SCC OnLine Ori 13
212

Sujit Biswas v. State of Assam, (2103) 12 SCC 406 12

Virsa Singh v. State of Punjab, AIR 1958 SC 465 12

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 MEMORANDUM ON BEHALF OF APPELLANT

STATEMENT OF JURIDICTION

The Hon’ ble High Court of Bombay has jurisdiction to hear the present matter under Section
374 of the Code of Criminal Procedure, 1973.
The Session Court convicted the accused under Section 302 of IPC.

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 MEMORANDUM ON BEHALF OF APPELLANT

STATEMENT OF FACTS

BACKGROUND

Mr. Ravi Shankar was a Second in Command of the Indian Naval Ship "Indore". In the year

1990, Mr. Ravi Shankar was introduced to Mr. Sanjeev and his sister through a common friend

named Mr. Karthik. Mr. Sanjeev was doing business in automobiles in Bombay. Mr. Ravi

Shankar married Mrs. Rupa in the year 1999 and had three children. Since the time of marriage,

the couple were living at different places having regard to the exigencies of service of Mr. Ravi

Shankar. Finally, they shifted to Bombay.

INCIDENT

Mr. Ravi Shankar, as a Naval Officer, was frequently going away from Bombay in his ship,

leaving his wife and children in Bombay. During this time, gradually, friendship developed

between Mr. Sanjeev and Mrs. Rupa, which culminated in an illicit intimacy between them.

Mr. Ravi Shankar came to know about this relationship from their common friends as well as

confession made by Mrs. Rupa to Mr. Ravi Shankar. This disturbed Mr. Ravi Shankar and at

several occasions he found out that Mrs. Rupa was not interested in him. Mr. Ravi Shankar

also questioned Mr. Sanjeev to which he admitted about the illicit relationship. This matter was

discussed between Mr. Ravi Shankar and Mrs. Rupa. Mrs. Rupa pleaded not to question Mr.

Sanjeev about their relationship.

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 MEMORANDUM ON BEHALF OF APPELLANT

ENSUING EVENTS

One day Mr. Ravi Shankar visited Mr. Sanjeev and that time Mr. Sanjeev stated to Mr. Ravi

Shankar that he is not serious about his relation with Mrs. Rupa. This statement enraged Mr.

Ravi Shankar and he threatened that he will shoot. Next day he drove his wife, his children and

a neighbour's child in his car to a cinema, dropped them there and promised to come and pick

them up at 6 P.M. when the show ended. He then drove his car to his ship, as he wanted to get

medicine for his sick dog, he represented to the authorities in the ship that he wanted to draw

a revolver and six rounds from the stores of the ship as he was going to drive along to

Ahmednagar by night. On receiving the revolver and six cartridges, he put it inside a brown

envelope. Then he drove his car to Mr. Sanjeev's office, and not finding him there, he drove to

Mr. Sanjeev's flat, rang the doorbell, and, when it was opened by a servant, he walked to Mr.

Sanjeev's bedroom, went into the bedroom and shut the door behind him.

The case of prosecution stated that Mr. Ravi Shankar had planned and killed Mr. Sanjeev in

his bedroom. However, in the Session Court defence was that Mr. Sanjeev tried to grasp the

envelope and while preventing him it accidentally shot at him (Mr. Sanjeev was 34 years old

at the time of his death). After the shooting the accused went back to his car and drove it to the

police station where he surrendered himself.

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 MEMORANDUM ON BEHALF OF APPELLANT

STATEMENT OF ISSUES

Issue 1

1. Whether the Accused is guilty of the offence of murder u/s 302 of the IPC?

Issue 2

2. Whether the act of Accused was done in good faith of right of private defence under S.
9b r/w s. 100 and falls within the exception 2 of S. 300 of Indian Penal Code, 1 860'

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 MEMORANDUM ON BEHALF OF APPELLANT

SUMMARY OF ARGUMENTS

1. The Accused is not guilty of the offense of murder u/s 302 of the Indian Penal

Code, 1860.

The Accused is not guilty of the offence under S. 301 of the Indian Penal Code (hereinafter
referred to as IPC). The Respondent has failed to adequately establish the actus reus and the
mens rea of the Accused required to prove the crime. Therefore, a case beyond reasonable
doubt could not be established by the Respondent which is sufficient to give the benefit of
doubt to the Accused and acquit him.

2. The act of Accused was done in good faith of right of private defence under S. 96
r/w S. 100 and falls within the exception 2 of S. 300 of Indian Penal Code, l860.

The accused can avail the right to private defence as he was free from fault in initiating the
very incident and an impending peril to his life or of great bodily harm was present. Therefore,
it was necessary for him to retaliate as he had no reasonable chance of escaping as Mr. Arjun
(deceased) had already grasped the envelope to kill him.

The exercise of the right of private defence of person or property, exceeds the power given to
him by law and causes the death of the person without pre-mediation, and without any intention
of doing more harm than is necessary for the purpose of such defence, then such act would not
amount to murder. In the present case. the act of the Accused fell under the definition of
exception 2 of the S. 300.

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 MEMORANDUM ON BEHALF OF APPELLANT

ARGUMENTS ADVANCED

ISSUE I

1. The Accused is not guilty of the offence of Murder u/s 302 of the Indian Penal
Code, 1860.

It is humbly submitted that the Sessions Court has greatly erred in holding the Accused liable
under S. 302 of IPC as the respondent has (i) failed to adequately establish the required mens
rea; (ii) the actus reus of the Accused is not established; (iii) the Prosecution has failed to
establish the case behind reasonable doubt.

(i) Mens Rea of the Accused has not been established.

It is submitted that the Prosecution has failed to establish the mens rea on the following
grounds: (a) Accused did not have the intention to commit the offence; (b) Accused did not
have the motive to commit the offence.

(a) Accused did not have the intention to commit the offence:

To prove the intention of the Accused, the prosecution needs to show that there was the
intention to inflict that particular injury which caused the death of the deceased, and it was not
accidental or unintentional or that some other injury was intended ‘.

In the present case, the PW and DW have testified to the fact that the deceased tried to grasp
the envelope that contained the revolver and in order prevent himself, the Accused accidentally
shot at him. Thus, the deceased was shot accidently without any intention to cause the death of
the Deceased’. Therefore, it is submitted that the Accused did not has the requisite intention to
inflict the bodily injury which caused the death of the Deceased.

CASE LAW:

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 MEMORANDUM ON BEHALF OF APPELLANT

Balaka Singh v. State of Punjab, AIR 1975 SC 19621

(1) In this case, appeal is directed against an order of acquittal passed in Criminal Appeal No.
24 of 1979 by the learned Additional Sessions Judge, 13th Court, Alipore. That appeal was
preferred by the accused Durga Charan against the order of conviction and sentence passed
against him by the Judicial Magistrate under Ss. 454 and 427 I. P. C. The learned Additional
Sessions Judge upholding the findings of the learned Magistrate that the accused committed
mischief by breaking open the door and throwing out the articles from the room in the
possession of the complainant after entering therein, convicted the accused under S. 426 I. P.
C. instead of S. 427 I. P. C. as done by the learned Magistrate, because he held that there was
no evidence as to the extent of loss suffered by the complainant.

(2) WITH regard to the charge under S. 454 I. P. C. , the learned Additional Sessions Judge
acquitted the accused on two grounds :

(1) that the prosecution failed to prove that the intention of the accused was to commit the
offence of mischief; and

(2) that even if it was assumed that the intention of the accused was to commit mischief the
accused could not be convicted of a charge under S. 454 I. P. C. because "the offence of
mischief is not exclusively punishable with imprisonment either under S. 426 or under S. 427
I. P. C. "

(3) These findings of the learned Additional Sessions Judge are perverse. The learned
Additional Sessions Judge himself found that it was "proved beyond doubt that the accused
together with some others actually came in front of the complainant's godown in the early
morning on 13-7-1976 and broke open the door of the godown with force, entered the godown
and threw out the articles from the godown on the road. " Thus the findings of the learned
Additional Sessions Judge borne out by the evidence clearly show that according to the learned
Additional Sessions Judge also lurking house trespass was in fact committed by the accused-
respondent. It is strange that the learned Additional Sessions Judge could devote a few pages

1
1975 AIR 1962, 1975 SCR 129
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 MEMORANDUM ON BEHALF OF APPELLANT

on the question of intention which was totally irrelevant for the purpose of this case. S. 454
which is quoted below shows that intention is totally irrelevant in this case :

"section 454 - Whoever commits lurking house-trespass or house-breaking, in order to the

committing of any offence punishable with imprisonment, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also
be liable to fine; and, if the offence intended to be committed is theft, the term of the
imprisonment may be extended to ten years. "

Thus the section comprises two parts with regard to question of punishment. The first part
states that the person committing house trespass or house breaking in order to commit any
offence punishable with imprisonment shall be punished with imprisonment or fine. In the first
part there is nothing stated about intention. It only deals with certain facts, namely the fact of
committing lurking house trespass and the fact of committing of any offence punishable with
imprisonment or fine. The second part deals with the question of intention. The second part
deals with an aggravated form of the offence. This offence is aggravated only when, as stated
in the second part, there is an intention to commit a particular offence, namely, theft. So far as
the first part of the section is concerned, as already stated, the question of intention is totally
irrelevant.

(4) AS the findings of the learned Judge, as noted earlier, show that the accused committed
certain acts which comprised all the ingredients of the offence of lurking house trespass and he
convicted and sentenced the accused on a charge under S. 426 I. P. C. , it is to be held in the
circumstances of the case that an offence under S. 454 I. P. C. was committed by the accused-
(Present respondent) because the other hypothesis of the learned Additional Sessions Judge
that the offence of mischief not being exclusively punishable with imprisonment either under
S. 426 or under S. 427 I. P. C. , the charge under S. 454 I. P. C. cannot be sustained, is wrong.
He committed an illegality by qualifying the word "punishable" in S. 454 I. P. C. with the word
"exclusively". It is strange that he could import the word "exclusively" to qualify the word
"punishable" in S. 454, although the Act itself does not say so. The section which is already
quoted only states that whoever commits lurking house trespass in order to commit any offence
punishable with imprisonment or with fine commits the offence punishable under S. 454 I. P.

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 MEMORANDUM ON BEHALF OF APPELLANT

C. In the present case the accused-respondent, did, while committing lurking house-trespass,
in fact commit the offence punishable under S. 426 I. P. C. as found by the learned Additional
Sessions Judge.

(5) Thus, in view of the findings of the learned Additional Sessions Judge with regard to the
questions of fact which are justified by the evidence on record, we hold that the accused-
respondent, in the circumstances stated above, did commit an offence punishable under S. 454
I. P. C. The accused is, therefore, liable to be convicted and sentenced on a charge under S. 454
I. P. C.

(6) Now with regard to the question of sentence to be imposed on the charge under S. 454 I. P.
C. , it may be noted that both the courts below are unanimous with regard to quantum of fine
that was to be paid by the accused, the learned Magistrate, on a charge under S. 427 I. P. C.
and the learned Additional Sessions Judge, on a charge under S. 426 I. P. C. , the amount of
fine imposed is Rs. 100/-only. Both the courts including the trial court actually seeing and
recording the evidence of the witnesses, after considering the facts and circumstances of the
case, imposed a fine to the extent of Rs. 100/- only, thereby expressing their view on the nature
and gravity of the offensive acts of the accused. Along with this fact we also take into
consideration the fact that the criminal case, in question, was instituted against the accused
more than 20 years ago.

(7) In the circumstances of the case, some of which have been noted above, we set aside the
order of acquittal passed by the learned Additional Sessions Judge with regard to the charge

(b) Accused did not have the motive to commit the offence:

Motive' is something which prompts a man to form an intention. Motive is relevant in all
criminal cases whether based on testimony of the eyewitness or circumstantial evidence.
Previous threats, previous litigations, previous altercations, and past enmity between the parties
are admitted showing motive. When motive cannot be established other evidence has to be
scrutinized closely.

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 MEMORANDUM ON BEHALF OF APPELLANT

In the present case, there is no evidence to affirm that the Accused had motive to kill the
deceased intentionally. A mere suspicion, however grave it may be, cannot take the place of
proof, and there is a large difference between something that ’may be’ proved and something
that ‘will be proved”

’’ Saddik & Ors. V. State of Gujarat2

Rampal Singh v State of U.P, (2012)

8 SCC; Virsa Singh v. State of Punjab, AIR 1958 SC 465.

Reg V. Govinda, (1877) lLR 1 Bonn 342

(ii) Actus Reus of the Accused is not established.

Discrepancies in evidence of eyewitnesses become a ground for disbelieving and discrediting

their testimony. Where ocular evidence is of shaky nature and where eyewitness having nit
actually witnesses the occurrence, the lapse committed by the Investigating Officer holds
significance and the benefit of doubt has to be given in such cases to the Accused'.

In the present case the PW did not actually witness the Accused firing the bullet from the
revolver. He only heard the gunshot which indicate that he was unaware of the circumstances
under which the incident occurred.

CASE LAW:

Virsa Singh v. State of Punjab 3

FACTS OF THE CASE

2
2016 10 SCC 663
3
AIR 1958 SC 465
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 MEMORANDUM ON BEHALF OF APPELLANT

On 13th July 1955 at about 8.00 p.m., the accused, i.e. Virsa Singh, along with five other
members by making unlawful assembly, attacked on deceased victim, i.e. Khem Singh with
the spear thrust into his abdomen.

The injury resulted in the abdomen’s fracture of the deceased victim and three coils of intestines
were coming out of the wound, which causes his death. According to the postmortem report
Doctor stated that “the injury was sufficient to cause the death in ordinary course of nature”.
Ratio Decendi of The Case

The Honourable Trial Judge opined that the common intention was to injure the deceased not
to have caused death, but death was caused because of rash actions. Therefore, he applied
section 300(3) of IPC to convict the accused under section 302 of IPC and was sentenced to
imprisonment for life.

While others were acquitted from charges under section 302 of IPC but charged under sections
149, 323, 324, 326 of IPC.

Decision

The Sessions judge concluded the accused was having the intention to cause grievous hurt.
Therefore, section 300(3) is to be applied here, and the accused was convicted under section
302 of IPC, 1860.

Further, the High Court interrupted that section 300(3) of IPC was not applicable because the
injury that was sufficient in the cause of death was not so proved.

But later on, the High Court accepted it as a fact after the Postmortem report of the deceased.

In the end, The Honorable Supreme Court, by observing all facts, concluded that the accused
had the intention to cause death that he used so much force that it penetrated the bowels and
the three intestine coils came out of the wound.

Therefore, the Court dismissed the appeal, and the accused person was held for a death sentence
under section 302 of IPC.

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 MEMORANDUM ON BEHALF OF APPELLANT

ISSUE. 2

2. The act of Accused was done ln good faith of right of private defence under S. 96 r/w

S. 100 and falls within the exception 2 of S. 300 of Indian Penal Code, 1860.

It is humbly submitted that in order to exercise the defence u/s 100, cardinal conditions, and
limitations provided by S. 99 must be satisfied namely, (i) Accused is fault free from bringing
the encounter, (ii) there must be no sufficient time for recourse to the public authorities, (iii)
retaliation was necessary, (iv) the apprehension of death or grievous hurt is real, (v) more harm
than necessary should not have been caused.

(i) The Accused is Fault free from bringing about the encounter

ln the present case, the act of deceased trying to grasp the envelope that contained the revolver
in order to use it. instigated and initiated the encounter with the Accused. Therefore, the
Accused is faut free from bringing the encounter.

(ii) There was no sufficient time for recourse to the Public Authority

The responsibility of every individuals safety and his property is that of the State and
consequently there is a duty cast on every person faced with apprehension of imminent danger
of his person or property to seek the aid of the machinery provided by the State. However, in
case of such aid is not available immediately, then the individual has the right to private
defence’.

In the present case, the deceased was infront of the Accused who was trying to grasp the
envelope and use the revolver in it entailed a grave threat on the life of the Accused. Thus,
leaving absolutely no room for him to react otherwise and reach to the public authorities to
save his life.

III) Retaliation was necessary

The right of private defence is available to one who is suddenly confronted with immediate
necessity of averting an impending danger. This right may extend to voluntarily causing death
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 MEMORANDUM ON BEHALF OF APPELLANT

or causing any other harm to the assailant if the offence which occasions the exercise of the
right is such as may reasonably cause the apprehension of death and hence the act in defence
is warranted and justified". In case of private defence, an individual need not to wait for the
attack to be executed as the same may be resorted even on mere apprehension of an attack".

In the present case, if the Accused had not stopped the deceased and defended himself, he
would have been shot by the deceased.

(iv) The apprehension of death or grievous hurt was real

When a man is under apprehension of death, one cannot be expected to judge the situation too
well". Apprehension of grievous injury is enough for the exercise of the right of private
defence™.

In the present case, the deceased was grasping the envelope with the revolver and would have
shot him had the Accused not defended himself. Therefore, it is submitted that there existed a
grave apprehension of death and grievous hurt.

(v) More than necessary harm was not caused

The person facing a reasonable apprehension of threat to himself cannot be expected to weigh

“with golden scales”.

In the present case, the reaction time for the Accused was very minimal and cannot be said to
be disproportionate to the injury inflicted upon the Deceased while exercising the right which
was commiserating to the injury with which he was threatened with. The incident took place
in spur of the moment which did not give requisite time to Accused to think about the necessary
force to repel the danger.

lt is humbly submitted that culpable homicide is not murder if the offender, in good faith, in
the exercise of the right of private defence of person or property, exceeds the power given to
him by law and causes the death of the person without pre-meditation ", and without any
intention of causing more hann than necessary60 for the purpose of such defence.

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 MEMORANDUM ON BEHALF OF APPELLANT

In the present case, the deceased was trying to grasp the envelope with the revolver to shoot
the Accused, and the Accused has an apprehension of death due to this act which could have
killed him in all probabilities. The Accused in order to defend himself shot the bullet so as to
save his life where the threat to life of Accused was eminent and there exists a chain of sudden
events that clearly shows that the offence was not premeditated and without any guilty
intention.

Thus, attacking the Deceased was done in private defence and was a matter of necessity for the
Accuse‹f. Additionally, even if the court decides that the force used under such apprehension
was beyond the permissible extent, the act of the Accused will fall under exception 2 of S. 300
of the Indian Penal Code, 1860 and the punishment should be limited to the fine under s.304
of the IPC.

3. Mitigating Factors call for Leniency.

The court has to consider the totality of factors bearing on the offence and offender, and a fix
punishment will promote effectively the punitive object of the law'*. Some of the major
grounds that couns have considered in mitigation of punishment are (i) absence of bad
intention; (ii) self-preservation; (iii) transgression of the limit of self-defence".

lt is submitted that even if the court decide otherwise, the situation of the Accused must be
considered for mitigating the punishment. The act committed by the Accused was done to
safeguard himself from the potential threat and sentencing him to an unreasonable period will
adversely affect his future. Furthermore, the Accused is neither a habitual offender nor does he
have any previous criminal records. Therefore, it is humbly requested before the Hon’ble Court
to show leniency in sentencing the Accused.

CASE LAW

Puran Singh v. State of Punjab4

4
AIR 1975 SC 1674
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 MEMORANDUM ON BEHALF OF APPELLANT

Darshan Singh v. State of Punjab &Anr5

5
AIR 2010 SC 1212
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 MEMORANDUM ON BEHALF OF APPELLANT

PRAYER
Therefore, in light of the facts stated, arguments advanced, and authorities cited, it is most

humbly prayed and implored before the Hon’ble High Court that it may be please to:

(1) Set aside the judgement given by the Hon’ble Sessions Court against the Appellant

(2) Acquit the Appellant from prosecuting under S. 302 of IPC for the offence of murder.

(3) Pass any other order that it may deem fit in favor of the Appellant in the light of equity,

justice and good conscience.

For this act of kindness, the Appellant shall duty bound forever pray

Place :

Date :

Counsel for the Appellant

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