TEAM CODE –

KSHAN- 15TH NATIONAL MOOT AND APPELLATE MOOT COURT

COMPETITION, 2020

IN THE PROCEEDING BETWEEN

VARUN JOSHI …………………………………………………………APPELLANT

VS

STATE OF MAHARASHTRA ………………………………………………RESPONDENT

BEFORE THE HON’BLE HIGH COURT OF BOMBAY

U/S 374 OF THE CODE OF CRIMINAL PROCEDURE,

1973

FOR THE OFFENCE CHARGED

U/S 302 & 506 (B) OF THE INDIAN PENAL CODE, 1860 AND SECTION 7 R/W 27(3) OF
THE

ARMS ACT, 1959

MEMORIAL FOR APPELLANT
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS................................................................................................IV

INDEX OF AUTHORITIES...................................................................................................V

STATEMENT OF JURISDICTION....................................................................................IX

STATEMENT OF FACTS.....................................................................................................X

STATEMENT OF CHARGES.............................................................................................XI

SUMMARY OF ARGUMENTS.........................................................................................XII

ARGUMENTS ADVANCED..................................................................................................1

I. THE PRESENT APPEAL IS MAINTAINABLE BEFORE BOMBAY HIGH COURT....................1

A. The high court has the jurisdiction to hear the appeal under s.374 of Cr.P.C.............1

B. The judgment of the sessions court was erroneous......................................................1

II. PROCEDURAL LAPSES ARE FATAL TO THE CASE OF PROSECUTION...............................2

A. Inconsistency of ballistic evidence with Eyewitness...................................................2

B. Prior Sanction of District Magistrate was not taken under s.39 of the Arms Act for

prosecuting the Accused.....................................................................................................2

III. ACCUSED IS NOT LIABLE FOR THE OFFENCE OF MURDER UNDER S. 302 OF INDIAN

PENAL CODE, 1860................................................................................................................3

A. Mens Rea of the Accused has not been established.....................................................3

i. Accused did not have the intention to commit the offence.......................................3

ii. Accused did not have motive to commit the offence................................................4

B. Actus Reus of the Accused is not established..............................................................4

i. Statement of PW 1 cannot be relied upon................................................................5

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ii. The prosecution has produced interested witness...................................................5

iii. Statements of independent witness was not recorded..............................................6

C. The respondent fails to establish the case beyond reasonable doubt...........................6

IV. IN ARGUENDO, ACCUSED EXERCISED THE RIGHT OF PRIVATE DEFENCE AGAINST

DECEASED UNDER S. 96 R/W S. 100 OF THE IPC, 1860..........................................................7

A. Accused is fault free from bringing about the encounter.............................................7

B. There was no sufficient time for recourse to the public authority...............................7

C. Retaliation was necessary............................................................................................8

D. The apprehension of death or grievous hurt was real..................................................8

E. More than necessary harm was not caused..................................................................9

V. IN ARGUENDO, THE ACT OF ACCUSED WAS DONE IN GOOD FAITH OF RIGHT OF SELF

DEFENCE AND FALLS WITHIN THE EXCEPTION 2 OF S. 300 IPC.........................................10

VI. IN ARGUENDO, THE ACT OF THE ACCUSED FALLS UNDER THE AMBIT OF S.80 OF IPC..

......................................................................................................................................11

A. Act was done by accident or misfortune....................................................................11

B. Act was done without criminal intention...................................................................11

C. Act done in lawful manner and lawful means...........................................................12

D. The act was done with proper care and caution.........................................................12

VII. THE CONVICTION OF ACCUSED UNDER S.27(3) OF THE ARMS ACT, 1959 IS INVALID.

...................................................................................................................................13

VIII. THE ACCUSED IS NOT LIABLE FOR CRIMINAL INTIMIDATION UNDER S. 503 R/W S.

506 (B) OF IPC....................................................................................................................14

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A. No act to threaten and cause any physical injury.......................................................14

B. There was no intent to cause alarm............................................................................14

C. There was no legal act which was being done by the other party.............................14

IX. MITIGATING FACTORS CALL FOR LENIENCY...............................................................15

PRAYER...............................................................................................................................XV
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LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Bom Bombay High Court

Crim LJ Criminal Law Journal

Cr.P.C. Codes of Criminal Procedure, 1973.

DW Defence Witness

Ed Edition

FIR First Information Report

HC High Court

IEA Indian Evidence Act

IPC Indian Penal Code

No. Number

Ors. Others

Pg. Page Number

PW Prosecution Witness

r/w Read With

s. Section

SC Supreme Court

SCC Supreme Court Cases

u/s. Under Section

v. Versus

Vol. Volume

MEMORIAL for APPELLANT [LIST OF ABBREVIATIONS]

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INDEX OF AUTHORITIES

CASES

Abdul Rehman v. Gulab Nabi, AIR 1964 J&K 4 14

Ashok Kumar Chaudhary v. State of Bihar, AIR 2008 SC 2436 5

Ashok Kumar v. State (Delhi Administration), AIR 1980 SC 636 15

Atley v. State of UP, AIR 1955 SC 807 4

Atley v. State, AIR 1955 SC 807 4

Bachan Singh v. State of Punjab, (1980) 2 SCC 684 15

Badri v. State of Rajasthan, (2000) 10 SCC 246 1

Bahadur Singh v. State of Punjab, AIR 1993 SC 70 10

Balaka Singh v State of Punjab, AIR 1975 SC 1962 5

Balbir Singh v. State, (1959) SCC Online P&H 53 7

Basdeo v. State of Pepsu, AIR 1956 SC 488 4

Bhupendrasingh A Chudasama v. State of Gujarat, AIR 1997 SC 3970 12

Brij Lal v. State of Rajasthan, (2006) SCC Online Raj 772 7

Chaco @ Aniyan Kunju v. State of Kerala, (2004) 12 SCC 269 10

Chhotka v. State, 1958 Cal 482 4

Chhotka v. State, AIR 1958 Cal 482 4

Dalbir Kauur v. State of Punjab, AIR 1977 SC 472 5

Darshan Singh v. State of Punjab & Anr., (2010) 2 SCC 333 9

Deomuni Sharma v. State of Jharkhand, (2009) 16 SCC 80 13

Hori Lal v. State of Uttar Pradesh, (1983) Cr LR 473 (UP) 11

Iqbal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC 140 2

Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947 15

MEMORIAL for APPELLANT [INDEX OF AUTHORITIES]

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James Martin v. State of Kerala, (2004) 2 SCC 203 9

Joseph v. State, (2018) 12 SCC 283 3

K Naga Subba Reddy v. Public Prosecutor, A.P. High Court, AIR 2000 SC 6
3480
Kashi Ram and Ors. v. State of Madhya Pradesh, AIR 2001 SC 2902 10

Lachmi Koeri v. State of Bihar, AIR 1960 Pat 62 10

Laxman Sahu v. State of Orissa, AIR 1988 SC 83 8

Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 5

Mohinder Singh v State of Punjab, (1994) SCC OnLine P&H 358 9

People v. Dagani, G.R. No. 153875, 499 SCRA 64 (Aug 16, 2006) (Phil.) 7

Puran Singh v. State of Punjab, (1975) 4 SCC 518 7

Puran Singh v. State of Punjab, AIR 1975 SC 1674 9

R v. Deana, [1909] 2 AC (HL) 75 (appeal taken from Eng.) 8

R. v. Murray, 5 Cox CC 509 (Can.) 11

Raj Singh v. State of Punjab, (1993) SCC OnLine P&H 612 9

Rajesh Kumar v. State, AIR 1998 Pat 35 10

Ram Das v. State, (1967) 24 Crim L Rptr. 445 12

Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727 2

Rama Yashwant Kamat v. State, (1978) SCC Online Bom 208 7

Ramakant Rai v. Madan Rai, (2003) 12 SCC 395 6

Ramakant Rai v. Madan Rai, (2004) Cri LJ 36 (SC) 6

Rampal Singh v. State of U.P., (2012) 8 SCC 289 3

Rizan v. State of Chhattisgarh, AIR 2003 SC 976 9

Romesh Chandra Arora v State, AIR 1960 SC 154 15

Saddik & Ors. v. State of Gujarat, (2016) 10 SCC 663 3

MEMORIAL for APPELLANT [INDEX OF AUTHORITIES]

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Saraswati and Anr. v. State, (2002) Crim LJ (Mad.) 1420 14

Sardul Singh v. State of Haryana, AIR 2002 SC 3642 5

Shamim v. State (Government of NCT of Delhi), (2018) 10 SCC 509 1

Siryan v. Emperor, 17 Crim LJ 270 10

Sivapada Senapaty v. State, AIR 1969 Cal 28 8

Sonelal v. State of Uttar Pradesh, AIR 1978 SC 1142 4

State of Andhra Pradesh v. Rayavarappu Punnayya, AIR 1977 SC 45 10

State of Karnataka v. Shiva Shanker, 1978 Kant LJ 197, 200 7

State of Orissa v. Rabindranath Dalai and Anr., (1973) SCC OnLine Ori 212 8

State of Punjab v. Bhajan Singh, AIR 1975 SC 258 6

State of Punjab v. Karnal Singh, AIR 2003 SC 3609 6

State of U.P. v. Ram Swarup, AIR 1988 SC 1028 5

Sukhdev Singh v. Delhi State (Govt of NCT of Delhi), AIR 2003 SC 3716 11

Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657 5

V Subramani v. State of Tamil Nadu, (2005) 10 SCC 358 9

Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC 244 9

Virsa Singh v. State of Punjab, AIR 1958 SC 465 3

STATUTES

S. 300, The Indian Penal Code, 1860 10

S. 302, The Indian Penal Code, 1860 3

S. 8, The Indian Evidence Act, 1872 4

The Arms Act, No.54 of 1959, § 27 (3) 13

The Arms Act, No.54 of 1959, § 3 13

The Arms Act, No.54 of 1959, § 39 3, 13

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The Arms Act, No.54 of 1959, § 7 13

The Code of Criminal Procedure, No. 2 of 1974, § 374 (2) 1

The Indian Evidence Act, No. 1 of 1872, § 105 9

The Indian Evidence Act, No. 1 of 1872, § 8 4

The Indian Penal Code, No. 45 of 1860, § 503 14

The Indian Penal Code, No. 45 of 1860, § 506 (b) 14

The Indian Penal Code, No. 45 of 1860, § 80 11

The Indian Penal Code, No. 45 of 1860, § 302 1

The Indian Penal Code, No.45 of 1860, § 100 7

The Indian Penal Code, No.45 of 1860, § 302 3

The Indian Penal Code, No.45 of 1860, § 9 7

The Indian Penal Code, No.45 of 1860, § 96 12

BOOKS

J F STEPHEN, A DIGEST OF CRIMINAL LAW 316, (9th ed. 1950) 11

RATANLAL RANCHHODDAS & DHIRAJLAL KESHAVLAL THAKORE, RATANLAL 4

& DHIRAJLAL’S LAW OF EVIDENCE (23rd ed. 2009)

S.K SARVARIA, RA NELSON’S INDIAN PENAL CODE (10th ed. 2008) 10

S.K SARVARIA, RA NELSON’S INDIAN PENAL CODE (10th ed. 2008) 10

S.K SARVARIA, RA NELSON’S INDIAN PENAL CODE (10th ed. 2008) 10

MEMORIAL for APPELLANT [INDEX OF AUTHORITIES]

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STATEMENT OF JURISDICTION

The Hon’ble High Court of Bombay has jurisdiction to hear the present matter under Section

374 of Code of Criminal Procedure, 1973.

MEMORIAL for APPELLANT [STATEMENT OF JURISDICTION]

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STATEMENT OF FACTS

BACKGROUND

Mr. Varun Joshi and Mr. Tanmay Joshi are two brothers. Mr. Tanmay Joshi entered into a

land agreement with Mr. Aditya Agarwal, who is a builder, for the development of flat

scheme bearing Khasra no. 60/3 at Plot no. 99 HB estate, Sahakar Nagar, Nagpur. Mr. Varun

Joshi had objected to the said agreement and claimed that since the belonged to his family on

he had the right to develop the said land.

INCIDENT

On 06/01/2020 the land tilling work was being carried on the said land by a JCB bearing

number MH-31-FA-9671 which was hired on rent along with the driver Mr. Mahesh Muley

by Mr. Aditya Agrawal who along with his other employees was present there. Mr. Varun

Joshi, came to the property and engaged in an altercation with Mr. Agrawal and then pulled

out his gun threatening Mr. Aditya Agarwal by pointing the gun at him and asking him to

vacate the land. Thereafter, Mr. Varun Joshi pointed the gun at JCB driver Mr. Mahesh

Muley and asked him to stop the engine of the JCB and then after fired a bullet at him which

hit Mr. Muley on the forehead.

ENSUING EVENTS

Mr. Mahesh Muley was removed from the JCB and was taken to the Government Hospital,

Nagpur where he was declared dead. The police machinery was then called to the site and

when they reached the incident site, a panchnama was prepared, the statements of eye

witnesses were recorded and the items seized were sent for chemical analysis. Mr. Varun

Joshi’s was present at the spot with the gun and was arrested at the spot where the incident

took place. The post- mortem report disclosed the cause of death as being caused due to fire

arm injury. The sessions court convicted the Accused and the matter is now listed before

the Hon’ble Bombay High Court for an appeal against the order of conviction of the sessions

court.
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STATEMENT OF CHARGES

The Accused Mr. Varun Joshi has been charged under Section 302, 506(b) of the Indian Penal

Code, 1860 and also under Section 7 read with Section 27(3) of the Arms Act, 1959.

MEMORIAL for APPELLANT [STATEMENT OF CHARGES]

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SUMMARY OF ARGUMENTS

I. THE PRESENT APPEAL IS MAINTAINABLE IN THE BOMBAY HIGH COURT.

Mr. Varun Joshi (hereinafter referred to as Accused) has approached the Bombay High Court

against the decision of the Sessions court. The present appeal is maintainable under S.374 of

the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') because the

Sessions court has erroneously convicted the Accused for the offence of murder.

II. PROCEDURAL LAPSES ARE FATAL TO THE CASE OF PROSECUTION.

There are several procedural lapses which are fatal to the case of prosecution. These lapses

were overlooked by the sessions court and tainted the legality of the proceedings and results

in miscarriage of justice and caused prejudice to appellants to prove his innocence.

Therefore, the benefit of doubt must be given to the Accused.

III.THE ACCUSED IS NOT GUILTY OF THE OFFENCE OF MURDER U/S 302 OF INDIAN

PENAL CODE.

The Accused is not guilty of the offence under s.302 of 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.

IV. IN ARGUENDO, THE ACCUSED MERELY EXERCISED THE RIGHT OF PRIVATE

DEFENCE UNDER S.96 R/W S.100 OF THE INDIAN PENAL CODE 1860.

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 from the approaching JCB driven by Mr. Mahesh Muley (hereinafter as

Deceased) which could have killed him.

MEMORIAL for APPELLANT [SUMMARY OF ARGUMENTS]

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V. IN ARGUENDO, THE ACT OF ACCUSED WAS DONE IN GOOD FAITH OF RIGHT OF SELF-

DEFENCE AND FALLS WITHIN THE EXCEPTION 2 OF S. 300 IPC, 1860.

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 doing more harm than is necessary for the purpose of such defence, then such act

wont amount to murder. In the present case, the act of the Accused act fell under definition of

exception II of s.300.

VI. IN ARGUENDO, THE ACT OF THE ACCUSED WAS DONE BY ACCIDENT UNDER S. 80 OF

IPC.

The act of the Accused is done by accident or misfortune against Deceased as the act was

done in an accident, without any criminal intention or knowledge, the act was being done in a

lawful manner by lawful means and with proper care and caution.

VII. THE CONVICTION OF ACCUSED UNDER S.27(3) OF THE ARMS ACT, 1959 IS

INVALID.

The Accused has been wrongly convicted under s. 7 r/w s.27(3) of the Arms Act as the

Accused had license for the rightful possession of the .32 revolver. Therefore, the Accused

cannot be convicted under s.27(3) of Arms Act.

VIII. THE ACCUSED IS NOT LIABLE FOR CRIMINAL INTIMIDATION UNDER S.503 R/W

S.506 (B) OF IPC.

The Accused is not guilty under s.503 r/w s.506(b) of IPC as there was no act to threaten and

cause any physical injury nor there was no intent to cause alarm nor there was any legal act

which was being done by the other party.

IX. MITIGATING FACTORS CALL FOR LENIENCY.

Considering the grounds of mitigating the punishment and looking at the circumstances in

which the act was caused will help the Accused to lead a more dignified and lawful life.

MEMORIAL for APPELLANT [SUMMARY OF ARGUMENTS]

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ARGUMENTS ADVANCED

I. THE PRESENT APPEAL IS MAINTAINABLE BEFORE BOMBAY HIGH COURT.

It is humbly submitted before the Hon’ble High Court that the present appeal from the

judgment of the Sessions court is maintainable before the court as, the High Court has

jurisdiction to hear the appeal under s.374 Cr.P.C.[A]; and, the Judgment of the Sessions

court was erroneous. [B]

A. THE HIGH COURT HAS THE JURISDICTION TO HEAR THE APPEAL UNDER S.374 OF

CR.P.C.

It is humbly submitted that an appeal is indisputably a statutory right and an Accused who has

been convicted is entitled to avail this right which is provided under s.374 of the Cr.P.C.1 S.

374 (2), states that, if a trial is held by the Sessions Judge in which a sentence of

imprisonment of more than seven years has been passed, an appeal would lie to the High

Court.2

In the present case, Accused has been sentenced by the Sessions court to life imprisonment

and fine of ₹25,000 u/s 302&506(b) of IPC3 and also u/s 7 r/w s.27(3) of the Arms Act.

Therefore, u/s 374 of Cr.P.C, the Accused has the right to appeal before the High Court

against the impugned order passed by the Session court.

B. THE JUDGMENT OF THE SESSIONS COURT WAS ERRONEOUS.

While appreciating the evidence of a witness, the approach of the court must be to check

whether the evidence of the witness read as a whole inspires confidence.4 The moment it

establishes the confidence, it becomes necessary that court scrutinizes and evaluates the

evidence properly.5

In the present case, the Sessions court has given no reasoning for not appreciating the testimony
1
Badri v. State of Rajasthan, (2000) 10 SCC 246.
2
The Code of Criminal Procedure, No. 2 of 1974, § 374 (2).
3
The Indian Penal Code, No. 45 of 1860, INDIA CODE (1993), § 302.
4
Shamim v. State (Government of NCT of Delhi), (2018) 10 SCC 509.
5
Id.

MEMORIAL for APPELLANT [ARGUMENTS ADVANCED]

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given by Mr. Kunal Bhatt (hereinafter referred to as DW1) who was an eyewitness. Further,

the Sessions court in its judgement has not been able to substantiate the repudiation of the

defence put forth by the appellant under s.80 of the IPC. Therefore, it is humbly submitted

that in the light of non-appreciation of the essential witness to the case, the sentence passed

by the Sessions court has erroneously convicted the Accused.

II. PROCEDURAL LAPSES ARE FATAL TO THE CASE OF PROSECUTION.

It is humbly submitted that, there exists procedural lapses in the prosecution of Accused as

Inconsistency of ballistic evidence with prosecution witness. Prior sanction of district

magistrate was not taken under s.39 of the Arms Act for prosecuting the Accused [A];

resulting in miscarriage of justice and caused prejudice to Accused to prove his innocence6

[B].

A. INCONSISTENCY OF BALLISTIC EVIDENCE WITH EYEWITNESS.

The inconsistent evidences presented by eyewitness with the ballistic and chemical analyser

report is a fundamental defect and is sufficient to discredit the entire case of the prosecutions.7

In the present case, the chemical analyser report confirms that the gun from which the bullet

was fired was a six chamber .32” revolver marked as Ex-18, where as in the testimony of Mr.

Prateek Shah (hereinafter as PW2) who happens to sign the sample seizure memo and the

Panchanama prepared by the police and the FIR clearly states that a pistol gun was retrieved

from the Accused.9 Therefore, there exists material contradiction in the ballistics expert report

and the evidence of the prosecution witness which discredits the entire case of the

prosecution.

B. PRIOR SANCTION OF DISTRICT MAGISTRATE WAS NOT TAKEN UNDER S.39 OF THE

ARMS ACT FOR PROSECUTING THE ACCUSED.

6
Iqbal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC 140.
7
Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727.
8
Moot problem, Page 21.
9
Moot problem, Page 23.

MEMORIAL for APPELLANT [ARGUMENTS ADVANCED]

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The s.3910 of the Arms act mandates a prior sanction from the district magistrate for

prosecuting an Accused under the Arms act and failure of the same is fatal for the case of

prosecution. 11 In the present case, the Accused is charged with s.27(3) of the Arms act but

the prosecution has failed to furnish the mandatory sanction u/s 39 from the district

magistrate before prosecuting the Accused. Therefore, the lapse is fatal to the case of

prosecution.

III. ACCUSED IS NOT LIABLE FOR THE OFFENCE OF MURDER UNDER S. 302 OF INDIAN

PENAL CODE, 1860.

It is humbly submitted that the Sessions court has greatly erred in holding Accused liable

under s.30212 of IPC as the respondent has failed to adequately establish the required mens

rea [A]; the actus reus of the Accused is not established [B]; the Prosecution has failed to

establish the case beyond reasonable doubt [C].

A. 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: Accused did not have the motive to commit the offence [i]; Accused did not have

the intention to commit the offence [ii].

i. 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 intended13. To further elaborate, if it

is inferred that a person’s intention was only to inflict a blow on the lower part of the body

and the blow landed on any sensitive part by accident, then though an injury is shown to be

present,
10
The Arms Act, No.54 of 1959, § 39.
11
Joseph v. State, (2018) 12 SCC 283.
12
The Indian Penal Code, No.45 of 1860, § 302.
13
Saddik & Ors. v. State of Gujarat, (2016) 10 SCC 663; Rampal Singh v. State of U.P., (2012) 8 SCC 289;
Virsa Singh v. State of Punjab, AIR 1958 SC 465.

MEMORIAL for APPELLANT [ARGUMENTS ADVANCED]

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the intention to inflict an injury in that region, or of that nature is not proved.14

In the present case, PW1 and DW1 have testified to the fact that the Accused accidentally

tripped while moving back from the JCB to save himself and the Gunshot was caused

accidently without any intention to cause the death of the Deceased.15 Therefore, it is

submitted that the Accused didn’t had the requisite intention to inflict the bodily injury which

caused the death of the Deceased.

ii. Accused did not have motive to commit the offence.

Motive16 is something which prompts a man to form an intention.17 Motive is relevant in all

criminal cases whether based on testimony of the eye-witness or circumstantial evidence.18

Previous threats, previous litigations, previous altercations and past enmity19 between parties

are admitted to show motive.20 When motive cannot be established other evidence has to be

scrutinized closely.21

In the present case, the dispute with respect to land rights is only limited to PW1 and the

Accused. The Deceased had no nexus with the said dispute and there is no evidence to affirm

that there existed any past quarrel of the Accused with the Deceased. Therefore, the motive of

the Accused to kill the Deceased cannot be drawn through any relevant facts and evidences.

B. ACTUS REUS OF THE ACCUSED IS NOT ESTABLISHED.

It is humbly submitted that in the present case, the Prosecution has failed to establish the

actus reus on the following grounds: Statement of PW1 cannot be relied upon [i]; The

Prosecution has produced Interested Witness [ii]; Statements of Independent Witness was not

recorded [iii].

14
Id.
15
Moot problem, Page 24.
16
The Indian Evidence Act, No. 1 of 1872, § 8.
17
Basdeo v. State of Pepsu, AIR 1956 SC 488.
18
RATANLAL RANCHHODDAS & DHIRAJLAL KESHAVLAL THAKORE, RATANLAL & DHIRAJLAL’S LAW OF
EVIDENCE (23rd ed. 2009).
19
Sonelal v. State of Uttar Pradesh, AIR 1978 SC 1142.
20
Chhotka v. State, AIR 1958 Cal 482.
21
Atley v. State of UP, AIR 1955 SC 807.

MEMORIAL for APPELLANT [ARGUMENTS ADVANCED]

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i. Statement of PW 1 cannot be relied upon.

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

their testimony, if their testimony is found to be in conflict and contradiction with other

evidences or with statements already recorded. Such contradiction in case of witnesses may

not inspire confidence and it cannot be held that prosecution proved its case beyond

reasonable doubt.22 Further, where ocular evidence is of shaky nature and where eyewitness

having not actually witnessed 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.23

In the present case, PW1 did not actually witnessed the Accused firing the bullet from the .32”

revolver. He only heard the gunshot which indicate that he was unaware of the circumstances

under which the incident occurred. Further, there exists material contradiction between the

time of occurrence of the incident mentioned in the FIR and that in the Oral Report of

PW124. Therefore, it is submitted that the statement of PW1 cannot be relied upon.

ii. The prosecution has produced interested witness.

Interested Witness means that the person concerned must have some direct interest in seeing

that Accused person is somehow convicted because he had some animus towards the

Accused.25 Courts have a duty to undertake a complete and comprehensive appreciation of all

vital features of the entire evidence with reference to the broad and reasonable probabilities of

the case in their attempt to find out proof beyond reasonable doubt.26 Moreover, testimony of

Interested Witness must be accepted with caution.27

In the present case, PW1 had a prior civil litigation regarding land rights pending against the

22
Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Sunil Kumar Sambhudayal Gupta v.
State of Maharashtra, (2010) 13 SCC 657.
23
Balaka Singh v State of Punjab, AIR 1975 SC 1962.
24
Moot problem, page 9.
25
Dalbir Kauur v. State of Punjab, AIR 1977 SC 472; Ashok Kumar Chaudhary v. State of Bihar, AIR 2008 SC
2436.
26
Sardul Singh v. State of Haryana, AIR 2002 SC 3642.
27
State of U.P. v. Ram Swarup, AIR 1988 SC 1028.

MEMORIAL for APPELLANT [ARGUMENTS ADVANCED]

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Accused28 and he holds a direct interest in the conviction of the Accused. PW2 being an

employee of PW1 cannot be regarded as an independent witness. Thus, the statements of the

two witnesses cannot be accepted on the face value and must be considered with caution to

establish the facts beyond reasonable doubt.

iii. Statements of independent witness was not recorded.

A witness is said to be independent witness unless he or she springs from sources which are

likely to be tainted and that usually means unless the witness has cause, such as enmity

against the Accused, to which to implicate falsely.29 The evidence of an independent

witness who is neither connected with the Accused nor to any witness, cannot be doubted.30

When there were certain independent eyewitness who were not examined by the I.O., non–

examination of such eyewitnesses shall lead to the benefit of doubt towards the Accused and

not prosecution. 31

In the present case, as testified by PW132, there were two more independent witnesses namely

Mr. Pravin Borkute and Mr. Vijay Kumar whose testimony can be relied upon. However, they

were not examined by the I.O., the failure of which raises reasonable doubts on investigation

conducted. Thus, the benefit of the doubt must be given to the Accused.

C. THE RESPONDENT FAILS TO ESTABLISH THE CASE BEYOND REASONABLE DOUBT.

It is submitted that, to prove a case “beyond reasonable doubt”, there must be a fair doubt

based upon reason and common sense arising out of the evidence of the case.33 If there exists

a gap or lacuna in the story or evidence of the prosecution and the link is not well connected

to convict the Accused beyond reasonable doubt, the benefit of doubt must go to the

Accused.34

In the present case, the testimony of PW1 cannot be relied upon as he was an Interested

28
Moot problem, Page 24.
29
State of Punjab v. Karnal Singh, AIR 2003 SC 3609.
30
K Naga Subba Reddy v. Public Prosecutor, A.P. High Court, AIR 2000 SC 3480.
31
Supra note 7.
32
Moot Problem, Page 9&22.
33
Ramakant Rai v. Madan Rai, (2003) 12 SCC 395.
34
State of Punjab v. Bhajan Singh, AIR 1975 SC 258.

MEMORIAL for APPELLANT [ARGUMENTS ADVANCED]

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Witness. Further, the prosecution has failed to produce any independent witness and has not

been able to establish the story of the incident clearly. Moreover, there exist material

contradictions in the evidence presented. Therefore, the prosecution has failed to establish the

crime beyond reasonable doubt against the Accused,

IV. IN ARGUENDO, ACCUSED EXERCISED THE RIGHT OF PRIVATE DEFENCE AGAINST

DECEASED UNDER S. 96 R/W S. 100 OF THE IPC, 1860.

It is humbly submitted that in order to exercise the defence u/s 100,35 cardinal conditions,36 and

limitations provided by S. 99;37 must be satisfied namely, Accused is fault free from bringing

the encounter [A]; There must be no sufficient time for recourse to the public authorities [B];

retaliation was necessary [C]; the apprehension of death or grievous hurt is real [D]; More

harm than necessary should not have been caused [E].

A. ACCUSED IS FAULT FREE FROM BRINGING ABOUT THE ENCOUNTER.

Unlawful aggression or material aggression, is an offensive act positively determining the

intent of the aggressor to cause an injury on the life and limb of a person.38

In the present case, the act of the JCB driver to move the JCB towards the Accused on the

instruction by PW139, instigated and initiated the encounter with the Accused. Therefore, the

Accused is fault free from bringing the encounter.

B. THERE WAS NO SUFFICIENT TIME FOR RECOURSE TO THE PUBLIC AUTHORITY.

Where there exist an element of invasion or aggression on the property, then the individual

has the undoubted right to resist the attack and even use force if necessary.40 The

responsibility of

35
The Indian Penal Code, No.45 of 1860, § 100.
36
Rama Yashwant Kamat v. State, (1978) SCC Online Bom 208; Balbir Singh v. State, (1959) SCC Online P&H
53; Brij Lal v. State of Rajasthan, (2006) SCC Online Raj 772; State of Karnataka v. Shiva Shanker, 1978 Kant
LJ 197, 200.
37
The Indian Penal Code, No.45 of 1860, § 99.
38
People v. Dagani, G.R. No. 153875, 499 SCRA 64 (Aug 16, 2006) (Phil.).
39
Moot problem, Page 22.
40
Puran Singh v. State of Punjab, (1975) 4 SCC 518.

MEMORIAL for APPELLANT [ARGUMENTS ADVANCED]

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every individual’s 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 if such aid is not

available immediately, then the individual has the right of private defence.41

In the present case, the JCB was only 5 feet away from the Accused42 and was advancing

towards him and 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 and

property.

C. RETALIATION WAS NECESSARY.

The right of private defence is available to one who is suddenly confronted with immediate

necessity of averting an impending danger.43 This right may extend to voluntarily causing

death 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.44 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. 45 In the present case, if the Accused had not stopped the JCB and defended

himself, in all probabilities the JCB driver would have killed him46. It shows the gravity of

the situation and hence it can be construed from the facts and the testimony of DW1 that the

retaliation by the Accused was necessary step in order to save his life.

D. THE APPREHENSION OF DEATH OR GRIEVOUS HURT WAS REAL.

The real test to determine the right to private defences is to see whether the Accused had a

reasonable apprehension in its mind that the death or grievous hurt would be the consequence

41
State of Orissa v. Rabindranath Dalai and Anr., (1973) SCC OnLine Ori 212.
42
Moot problem, Page 22.
43
Laxman Sahu v. State of Orissa, AIR 1988 SC 83.
44
Sivapada Senapaty v. State, AIR 1969 Cal 28.
45
R v. Deana, [1909] 2 AC (HL) 75 (appeal taken from Eng.).
46
Moot problem, Page 24.

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15TH NATIONAL MOOT AND APPELLATE MOOT COURT COMPETITION, 2020 Page | 9

of assault by the other party.47 When a man is under apprehension of death, one cannot be

expected to judge the situation too well.48Apprehension of grievous injury is enough for the

exercise of the right of private defence. 49The, burden of establishing the plea of self-defences

rest on Accused50 and the same can be discharged on preponderance of probabilities.51

In the present case, the JCB was approaching the Accused who was only at a distance of 5

feet from the JCB52. As testified by DW1, the Accused tripped while moving back due to the

uneven land and if he would not have stopped the JCB, it would have killed him in all

probabilities.53 As the event transpired, it was natural for the Accused to have an

apprehension of death and grievous injury taking in consideration the size, force and the

impact of the JCB .Therefore, it is submitted that there existed a grave apprehension of death

and grievous hurt.

E. MORE THAN NECESSARY HARM WAS NOT CAUSED.

Whether a person has acted in the exercise of the right of the private defence is a question of

fact that needs to be determined according to the facts and circumstances of each case and

their cannot be any abstract test for determining the same.54 The person facing a

reasonable apprehension of threat to himself cannot be expected to weigh “with golden

scales”55and modulate his defence step by step with any arithmetical exactitude.56

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

47
Mohinder Singh v State of Punjab, (1994) SCC OnLine P&H 358.
48
Raj Singh v. State of Punjab, (1993) SCC OnLine P&H 612.
49
Puran Singh v. State of Punjab, AIR 1975 SC 1674.
50
The Indian Evidence Act, No. 1 of 1872, § 105.
51
Rizan v. State of Chhattisgarh, AIR 2003 SC 976.
52
Moot problem, Page 22.
53
Moot problem, Page 24.
54
V Subramani v. State of Tamil Nadu, (2005) 10 SCC 358.
55
Darshan Singh v. State of Punjab & Anr., (2010) 2 SCC 333.
56
Vidhya Singh v. State of Madhya Pradesh, (1971) 3 SCC 244; James Martin v. State of Kerala, (2004) 2 SCC
203.

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in spur of the moment which did not give requisite time to Accused to think about the

necessary force to repel the danger. Therefore, taking in account the said facts, the Accused

inflicted a proportionate injury upon the Deceased and fulfilled the requisite conditions of

private defence.

V. IN ARGUENDO, THE ACT OF ACCUSED WAS DONE IN GOOD FAITH OF RIGHT OF SELF-

DEFENCE AND FALLS WITHIN THE EXCEPTION 2 OF S. 300 IPC.

It is humbly submitted that culpable homicide is not murder57 if the offender, in good faith 58,

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-meditation59, and without any

intention of causing more harm than necessary60 for the purpose of such defence.61 An

Accused can rely on circumstances and admissions made by a witness in support of his

plea of self- defence without setting up a specific plea.62 Also, there should be some

evidence direct or indirect showing the reasonable possibility of right of private defence

exercised by Accused.63 In the present case, the Accused had an apprehension of death

due to the JCB advancing towards him which could have killed him in all probabilities64.

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 Accused.

Additionally, even if the court decides that the force used under such apprehension was

beyond the permissible extent, the act

57
The Indian Penal Code, No. 45 of 1860, § 300; 3 S.K SARVARIA, RA NELSON’S INDIAN PENAL CODE (10th ed.
2008).
58
Rajesh Kumar v. State, AIR 1998 Pat 35.
59
Siryan v. Emperor, 17 Crim LJ 270.
60
Lachmi Koeri v. State of Bihar, AIR 1960 Pat 62.
61
Kashi Ram and Ors. v. State of Madhya Pradesh, AIR 2001 SC 2902; State of Andhra Pradesh v.
Rayavarappu Punnayya, AIR 1977 SC 45; Chaco @ Aniyan Kunju v. State of Kerala, (2004) 12 SCC 269.
62
Bahadur Singh v. State of Punjab, AIR 1993 SC 70.
63
S.K SARVARIA, RA NELSON’S INDIAN PENAL CODE (10th ed. 2008).
64
Moot problem, Page 24.

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of the Accused will fall under exception II of s. 300 of the Indian Penal Code, 1860 and the

punishment should be limited to the fine under s.30465 of the IPC.

VI. IN ARGUENDO, THE ACT OF THE ACCUSED FALLS UNDER THE AMBIT OF S.80 OF IPC.

It is humbly submitted that the Accused’s act qualifies under s.80 of the IPC66 as; the act of the

Accused was done by accident or misfortune [A]; without any criminal intention [B]; in a

lawful manner by lawful means [C]; and with proper care and caution [D].

A. ACT WAS DONE BY ACCIDENT OR MISFORTUNE.

An effect is said to be accidental when the act by which it is caused is not done with the

intention of causing it, and when its occurrence as a consequence of such act is not so

probable that a person of ordinary prudence ought, under the circumstances in which it is

done, to take reasonable precaution against it.67 Any idea of something which is fortuitous

and unexpected, is involved in the word ‘accident’.68

In the present case, the Accused was moving backwards and the JCB was moving towards

him. and as the land was uneven, the Accused lost his balance, which resulted in the

accidental gunshot. Therefore, it is humbly submitted that gunshot that resulted in the

death of the Deceased was purely accidental.

B. ACT WAS DONE WITHOUT CRIMINAL INTENTION.

When there is nothing on the record to show that the Accused caused injury to the Deceased

without any criminal intent, then in such a case the act of the Accused falls under the purview

of s.80 of I.P.C.69 The purely accidental consequences of a man’s voluntary conduct will not

be imputed on him, if he had no criminal intention and his conduct is lawful.70

65
The Indian Penal Code, No. 45 of 1860, § 304.
66
The Indian Penal Code, No. 45 of 1860, § 80.
67
J F STEPHEN, A DIGEST OF CRIMINAL LAW 316, (9th ed. 1950).
68
Sukhdev Singh v. Delhi State (Govt of NCT of Delhi), AIR 2003 SC 3716.
69
Hori Lal v. State of Uttar Pradesh, (1983) Cr LR 473 (UP).
70
R. v. Murray, 5 Cox CC 509 (Can.).

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The Accused pointed the .32” revolver at the Deceased only to stop the JCB from coming

towards him. Further, the Accused had multiple opportunities to shoot the Deceased prior to

the incident. Also, the conduct of the Accused to move backwards, to avoid the JCB indicates

that he did not intend to shoot the JCB at the first instance, even though a danger was

possessed on his life. Therefore, the overall conduct of the Accused does not point towards

any possibility of premeditated criminal intent or knowledge to kill the deceased.

C. ACT DONE IN LAWFUL MANNER AND LAWFUL MEANS.

In the present case, the Accused was holding a “licensed” .32” revolver in his hand. Further,

having the apprehension of attack by the JCB which was moving towards him he used the .

32” revolver only to stop the JCB and asked the driver to switch of the engine which

amounts to lawful act done in lawful manner. Therefore, the act of the Accused was

lawful act while exercising his right of private defence71 against the deceased.

D. THE ACT WAS DONE WITH PROPER CARE AND CAUTION.

The primordial requirement of s.80 of IPC, is that the act by which the offence is committed

should have been done ‘with proper care and caution’.72 A person should exercise that care

and precautions which as a reasonable and prudent man would exercise or undertake.73

In the present case, the Accused used the .32” revolver to save himself and his property from

the JCB which was heading towards the Accused. The Accused had only pointed the .32”

revolver at the lower portion and gave repeated and reasonable warnings to the JCB driver

requesting him to turn of the engine74. The conducted of the Accused shows that he took

reasonable care and caution and the bullet was fired only because the ground was unlevelled

and he tripped while moving backwards.

71
The Indian Penal Code, No.45 of 1860, § 96.
72
Bhupendrasingh A Chudasama v. State of Gujarat, AIR 1997 SC 3970.
73
Ram Das v. State, (1967) 24 Crim L Rptr. 445.
74
Moot problem, Page 24.
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VII. THE CONVICTION OF ACCUSED UNDER S.27(3) OF THE ARMS ACT, 1959 IS INVALID.

S.3 of the Arms Act75 states that, no person shall be liable for the possession of firearm, if he

holds a valid license in accordance to the provisions of the act. S.7, states that no person shall

be prosecuted for possessing or carrying or use, any prohibited ammunition unless it has been

authorized by Central Government.76 Further, s.27(3) states that if any person uses any

prohibited arms or does any act in contravention of s.7, shall be punishable with

imprisonment for life, or death and shall also be liable to fine.77 For inviting conviction u/s

27 of the Arms Act it has to be proved that the firearm was used in contravention of s.7 of

the Arms Act. If it is a licensed firearm, there exists no question of s.7 coming in.78

In the present case, the license of the Accused was retrieved from his house by the police as

stated in the judgement given by the Session Court. The Accused has a valid license to

possess and carry a .32” revolver in accordance to s.3 of the Arms Act, 1959. Further, the

Accused has not violated any of the conditions stated under s.7 of the Arms Act for being

punished under s.27(3) of the Arms Act. Therefore, it is submitted that since the Accused

had a valid license to hold the .32 revolver, s.7 of the Arms act is not attracted and the

Accused has been wrongly charged under s.7 and s.27(3) of Arms Act,1959. Additionally, it

is contested that even if the Accused is charged u/s 27 (3), the appropriate sanction u/s 39 of

the Arms Act as per which a prior sanction from the district magistrate is required to

prosecute any person under s.27 (3) of the act 79. However, the sanction of prosecution u/s 27

(3) was not presented before the sessions court and failure of the same can be an absolute

ground for acquittal. 80 Hence, the Accused is entitled to acquittal from the charges under the

Arms act.

75
The Arms Act, No.54 of 1959, § 3.
76
The Arms Act, No.54 of 1959, § 7.
77
The Arms Act, No.54 of 1959, § 27 (3).
78
Deomuni Sharma v. State of Jharkhand, (2009) 16 SCC 80.
79
The Arms Act, No.54 of 1959, § 39.
80
Joseph v. State, (2018) 12 SCC 283.

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VIII. THE ACCUSED IS NOT LIABLE FOR CRIMINAL INTIMIDATION UNDER S. 503 R/W S. 506

(B) OF IPC.

It is humbly submitted that the Accused is not guilty under s.50381 r/w s.506(b)82 of IPC as;

there was no act to threaten and cause any physical injury [A]; there was no intent to cause

alarm [B]; and there was no legal act which was being done by the other party.[C]

A. NO ACT TO THREATEN AND CAUSE ANY PHYSICAL INJURY.

The very incident of threatening a person to go away from his private property in itself does

not satisfy the requirements of s.503 r/w s.506 of IPC.83

In the present case, the Accused’s main intention was to stop the JCB from encroaching the

property on which he had a lawful right. The act of the Accused to point his .32” revolver at

the Deceased was in order to safeguard his property and also to protect himself from the

approaching JCB which was endangering his life. Therefore, the very act of the Accused

cannot be said to threaten nor to cause any physical injury to the Deceased.

B. THERE WAS NO INTENT TO CAUSE ALARM.

Where any threats were given by an individual not to alarm the other party, but for deterring

from what he believed to be certain right belonging only to him, then the alleged act cannot

be said to fall under the essential ingredients provided under s.503 of IPC.84

In the present case, the Accused with a bona fide intention to save his right over the property

which only belonged to him, deterred the Complainant and the Deceased to stop the

construction work over the said land. Therefore, it can be inferred that the deterrence induced

by the Accused do not suffice the ingredients of s.503 of IPC.

C. THERE WAS NO LEGAL ACT WHICH WAS BEING DONE BY THE OTHER PARTY.

81
The Indian Penal Code, No. 45 of 1860, § 503.
82
The Indian Penal Code, No. 45 of 1860, § 506 (b).
83
Saraswati and Anr. v. State, (2002) Crim LJ (Mad.) 1420.
84
Abdul Rehman v. Gulab Nabi, AIR 1964 J&K 4.

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One of the essential ingredients of proving an offence under s.506 of IPC is to show that

when the threat was given by any person, then it is for the purpose of making any person to

omit any act which he was legally entitled to do.85

In the present case, as per the testimony of DW1, there existed a civil dispute regarding the

land and the Accused was the owner of the said land.86 Therefore, the act of the JCB to enter

the Accused’s land amounted to trespass to property, which is not a lawful act and hence it

cannot be said that the Accused threatened to omit any act which the Deceased or PW1 were

legally entitled to do.

IX. 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.87 Some of the major

grounds that courts have considered in mitigation of punishment are (i) absence of bad

intention; (ii) self-preservation; (iii) transgression of the limit of self-defence.88

It 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.

85
Romesh Chandra Arora v State, AIR 1960 SC 154.
86
Moot problem, Page 24.
87
Ashok Kumar v. State (Delhi Administration), AIR 1980 SC 636.
88
Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947; Bachan Singh v. State of Punjab, (1980) 2 SCC
684.
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PRAYER

In the 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 pleased to:

I. Set aside the judgement given by the Sessions court against Varun Joshi.

II. Acquit Varun Joshi from prosecuting under s.302 & s.506(b) of IPC for the offence of

murder and criminal intimidation and s.7 r/w 27 (3) of the Arms Act.

Also, pass any other order that it may deem fit in favour 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: Nagpur S/d

Dated……. Counsel for Appellant

MEMORIAL for APPELLANT [PRAYER]