VIVEK SINGH 1756

CLASS MOOT COURT

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

STATE OF GUJARAT APPELLANT

V.

VEER SINGH RESPONDENT

Criminal Appeal NO.__OF 20

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 132 AND 134 OF THE CONSTITUTION OF INDIA

MEMORANDUM ON BEHALF OF THE APPELLANT

 CLASS MOOT COURT

TABLE OF CONTENTS

TABLE OF CONTENTS II

LIST OF ABBREVIATIONS III

INDEX OF AUTHORITIES IV

STATEMENT OF JURISDICTION VI

SUMMARY OF FACTS VII

ISSUES RAISED IX

SUMMARY OF ARGUMENTS IX

ARGUMENTS ADVANCED 1

PRAYER 11

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LIST OF ABBREVIATIONS

§ Section

& And

A.I.R All India Reporter

Anr. Another

Art. Article

Bom Bombay

Ed. Edition

No. Number

Ors. Others

U.P. Uttar Pradesh

SC Supreme Court

SCC Supreme Court Cases

NGO National Governmental Organisation

Supp Supplementary

v. Versus

Vol. Volume

A.P. Andhra Pradesh

ILR Indian Law Reports

IPC Indian Penal Code, 1860

CrPC Code of Criminal Procedure

INDEX OF AUTHORITIES

STATUTES REFERRED:

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● THE CONSTITUTION OF INDIA, 1950

● CODE OF CRIMINAL PROCEDURE, 1973.
● INDIAN EVIDENCE ACT,1872.
● INDIAN PENAL CODE, 1860.

BOOKS REFERRED

● 2 P.K Majumdar & R.P Kataria Commentary on the Constitution of India, 2009
(10th ed. 2009).
● 2 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, 1950 (14th ed. 2017).
● M P Jain Indian Constitutional law, 1950 (16th ed. 2012).
● P S A Pillai Criminal Law, 2017 (13th ed. 2017).
● R.C. Goel & Rajiv Raheja Hints & Tricks on Criminal Law, 2010.
● 3 Dr. Hari Singh Gour Penal law of India, 1860 (11th ed. 2011).
● 4 Dr. Hari Singh Gour Penal law of India, 1860 (11th ed. 2011).
● 2 RATANLAL & DHIRAJLAL, INDIAN PENAL CODE (33th ed. 2016).
● 2 RATANLAL & DHIRAJLAL, LAW OF CRIME ON INDIAN PENAL CODE, 1860 (26 th
ed. 2007).
● 1 SARKAR, LAW OF EVIDENCE (19th ed. 2016).
● 1 WOODROFFROFFE & AMIR ALI, LAW OF EVIDENCE, 1872 (20th ed. 2017).

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TABLE OF CASES

Sr. no. Name of cases Citation

1 Akbar Hussain v. State of J&K (2018) 16 SCC 85

2 State of A.P. v. Rayavarapu Punnayya (1976) 4 SCC 382

3 Rampal Singh v. State of U.P 2009 2 SCC 114

4 Kartar Singh v. State of Punjab 1994 SCC (3) 569

5 Santosh Kumar v State thr. CBI Criminal Appeal No. 87

of 2007

6 Virsa Singh v. State of Punjab AIR 1958 SC 465

7 Ghasi Ram v. State AIR 1952 Bhopal 25

8 Nathuni Yadav v. State of Bihar AIR 1997 SC 1808

9 Satish Nirankari v. State of Rajasthan (2017) 8 SCC 497

10 Ashok Kumar Barik v. State of Orissa (1998)

11 Gurmukh Singh v. State of Haryana, 2009 SCC (15) 635

12 Parsuram Pandey v. State of Bihar AIR 2004 SC 5608

13 Om Prakash v. State of Uttaranchal (2003) 1 SCC 648

14 Ramareddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172.

15 Padala Veera Reddy v. State of A.P., (1991) SCC (Cri) 407

16 Chattar Singh v. State of Haryana (2008) 14

17 Ganeshlal v. State of Maharashtra (1992) 3 SCC 106

18 State vs Hari Ballabh And Ors AIR 1963 Raj 19, 1963
CriLJ 223

19 Sunil Kumar Pal vs Sadan Chatterjee And Ors AIR 1951 Cal 297

20 Subramani And Ors vs State Of Tamil Nadu 2002 (SC), (crl.) 1225

21 K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605

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22 Atmendra v. State of Karnataka (1998) 4 SCC 256

23 Shankar Narayan Bhadolkar v. State of Maharashtra (2005) 9 SCC 71

24 Bhupendra singh A. Chudasama v. State of Gujarat (1998) 2 SCC 603

25 Rishi Kesh Singh And Ors. vs The State AIR 1970 All 51

26 Laxman Singh v. Poonam Singh (2004) 10 SCC 94

STATEMENT OF JURISDICTION

The appellant has approached the Hon'ble Supreme Court of India under Article 132 and
Article 134 of The Constitution of India, 1950. The case is listed for arguments before the
Division Bench of the Hon'ble Supreme Court. Article 132 of The Constitution of India,
1950 reads as :“Article 132: Appellate jurisdiction of Supreme Court in appeals from
High Courts in certain cases: (1) An appeal shall lie to the Supreme Court from any
judgment, decree or final order of a High Court in the territory of India, whether in a
civil, criminal or other proceeding, if the High Court certifies under Article 134A that the
case involves a substantial question of law as to the interpretation of this Constitution

(2) Omitted

Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided Explanation
For the purposes of this article, the expression final order includes an order declaring an
issue which, if decided in favor of the appellant, would be sufficient for the final disposal
of the case”

Article 134 of The Constitution of India, 1950 reads as hereunder:

Article 134: Appellate jurisdiction of Supreme Court in regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence
in a criminal proceeding of a High Court in the territory of India if the High Court has
on appeal reversed an order of acquittal of an accused person and sentenced him to
death; or has withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him to death;
or

(c) Certifies under Article 134A that the case is a fit one for appeal to the Supreme
Court: Provided that an appeal under sub clause (c) shall lie subject to such provisions
as may be made in that behalf under clause (1) of Article 145 and to such conditions as
the High Court may establish or require

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(2) Parliament may by law confer on the Supreme Court any further powers to entertain
and hear appeals from any judgment, final order or sentence in a criminal proceeding of
a High Court in the territory of India subject to such conditions and limitations as may
be specified in such law.

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SUMMARY OF FACTS

BACKGROUND:

Veer Singh, a Sikh and a Major with the Indian army had settled down in Ahmedabad
with his English-born wife Maria and their two children. On 2 nd January 2014, Veer
Singh was posted on border area and he remained frequently away on assignments and
operations for long periods of time. On June 1st, 2014, there erupt a war between India
and neighbouring country. Veer Singh was sent to the border on an operation to recapture
the Point X of at utmost importance to India. Point X was at height of 17,000 feet.
Reaching at Point X, Major Veer Singh faced the commander of the enemy-backed
terrorist on radio. The enemy commander provoked him “Why have you come here; you
will not go back”. Maj, Veer Singh being the last person to back away from a fight
replied, “We shall see within one hour who remain on the top”. In a short while Maj.
Veer Singh and his company of troops killed eight enemy soldiers and captured heavy
anti-aircraft machine gun, neutralizing the advantageous peak. Mission Point X was a
success. On 15th July when Veer Singh returned back to his home and found that Maria
was not there. He tried to contact Maria but did not succeed. When he asked their maid
servant about Maria, she hesitantly replied that, “Memsaab has gone out with Aryan Sir
since three days” Shocked on her verdict Veer Singh searched the almirah of his wife
where he found a number of love letters of Raj Aryan, a friend of Nehal’s. After reading
those love letters he came to know that in his absence Maria fell love with Raj Aryan.

After coming back home, Maria confessed to Veer of her illicit intimacy with Raj Aryan
and then Veer Singh point to his Cabin, took from its store a revolver and cartridges,
loaded the same. He drove his wife and children to a cinema where he dropped them
promising to pick them up when the show ended at 6 p.m. Then he drove his car to Raj
Aryan’s office where Kundan, the P.A. of Raj greeted him, Veer also responded well and
asked about the well-being of Kundan’s father who has recently undergone surgery. After
then he casually asked about Raj and not finding in there, drove to his flat.

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On reaching Aryan’s flat, he asked his servant Somnath that- “Where is Raj”. Somnath
replied that Sahab is in his bedroom. On hearing this, Veer Singh entered his bedroom
there he shaw Raj Aryan standing in front of mirror and combing his hair. He asked Raj if
he would marry Maria to which Raj replied in sarcasm that “It mean I should marry every
woman with whom I am having an affair”. After 2 minutes when Somnath was preparing
breakfast he heard the sound of gunshot. He immediately rushed to the bedroom and saw
that Raj was laid on the floor screaming with pain. Blood was gushing out of a wound on
his chest. There was a revolver in the right hand of Raj Aryan. Veer Singh was standing
still and shocked with a gun in his hand. Somnath took Raj in his lap and asked him in a
dim voice – “Baba Saheb are you alright”? To which raja replied- “My hunger for
Maria’s love killed me” and then he died.

In the trial conduct in session’s court, Evidence, oral and documentary was adduced in
the case including a letter which was written by Maria to Raj she expressed her desire to
divorce Veer Singh and marry Raj, but she doubted whether Raj had the same intentions.
In a letter dated 24th May 2014, she wrote “Last night when you spoke of your marrying
me and the various other girls you might marry, something inside me snapped and I knew
I could not bear the thought of your loving someone else….”

The incident and thereafter the decision of court both shocked and riveted the entire
country. Such a crime of passion, as it was termed was unusual, especially in the upper
echelons of society and that too by a highly decorated officer. People also found the
unfolding relationship intriguing. For instance, Veer Singh had known Aryan for nearly
15 years and Maria stood by her husband after Raj Aryan’s murder. A Daily News Paper
‘Aagaaz’ published the story, ran exclusive cover stories and openly supported Veer
Singh portraying him as a wrong husband and upright officer, betrayed by close friend.
‘Aagaaz’ painted Veer image, as that of a man representing the ideal middle-class value
as against Aryan’ playboy image. Regular rallies were conducted by some sections of
public in support of Veer Singh. At one rally 3,500 people filled the hall and around
5,000 stood outside. Veer Singh also received backing from the Indian army and Sikh
Community.

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Veer Sing was charge under section 302 to 447 of IPC. In the trial court Veer Singh
pleaded not guilty and took the defence of under section 80 of IPC and 100 of IPC.
However, he was held guilty by the court and awarded life imprisonment.

JUDGEMENT:

In an appeal to the High Court, the Court reversed the decision of the Sessions court and
acquitted Maj. Veer Singh and observed that since the prosecution has failed to prove its
case beyond reasonable doubt therefore the accused can’t be charged under the said
sections. Now an appeal has been filed by the state against the decision of High Court

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ISSUES RAISED

ISSUE 1
WHETHER THE ACCUSED CAN BE PROSECUTED UNDER SECTION 302
OF THE INDIAN PENAL CODE, 1860?

ISSUE 2
WHETHER THE ACCUSED EXERCISED THE RIGHT OF PRIVATE
DEFENCE AS UNDER SECTION 100 OF THE INDIAN PENAL CODE, 1860?

ISSUE 3
WHETHER THE ACCUSED CAN TAKE THE DEFENCE OF ACCIDENT AS
UNDER SECTION 80 OF THE INDIAN PENAL CODE, 1860?

ISSUE 4
WHETHER THE ACCUSED HAS COMMITTED THE OFFENCE OF HOUSE
TRESPASS AS UNDER SECTION 447 OF THE INDIAN PENAL CODE, 1860?

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SUMMARY OF ARGUMENTS

Contention 1: That the accused should be prosecuted for the offence of murder as
under Section 302 of Indian Penal Code, 1860

It is humbly submitted before the Hon’ble Supreme Court that, the accused was rightly
convicted under Section 302 of the Indian Penal Code 1860 by Trial court,. The accused,
in the present case, had the intention of causing death of the deceased, which strengthens
the case of the prosecution. Along with the intention of the accused, there was also an act
to kill the deceased. In the absence of direct evidence, circumstantial evidence is applied
to point out at the guilt of the accused beyond reasonable doubts. The above proves the
guilt of the accused, and hence the judgment of both Trial Court and the High Court
should be upheld.

Contention 2: That the accused has committed the offence of criminal trespass as
under Section 447 of the Indian Penal Code, 1860.

It is humbly submitted before the Hon’ble Supreme Court that, the culpability under S.
447 lies in the fact that an entry into property in the possession of another is done with
the intention to commit an offence or to intimidate, insult or annoy the person in
possession of such property, such intention was present in the instant case and hence the
offence under S. 447has been committed.

Contention 3: That the accused has not acted in private defence as under Section
100 and section 80 of the Indian Penal Code, 1860.

It is humbly submitted before the Hon’ble Supreme Court that, the accused not acted in a
manner to exercise the right of private defence of body which extends to the causing of
voluntary death of the actual or potential assailant if he through either of the specified
assaults causes reasonable and immediate apprehension of death or grievous hurt in the
mind of the accused. Also, the gunshot was intentional which caused the fatality.

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ARGUMENTS ADVANCED

CONTENTION 1: THAT THE ACCUSED HAS NOT COMMITTED THE

OFFENCE OF MURDER UNDER § 300 OF THE INDIAN PENAL CODE, 1860.

It is humbly submitted before the Hon’ble Supreme Court that § 300 defines murder with
reference to culpable homicide1, however the punishment for murder is provided under §
302 of IPC. An offence can’t amount to murder unless it falls within the definition of
culpable homicide2. In the scheme of the Penal Code ‘culpable homicide’ is genus and
murder is specie3. It is the gravest form of culpable homicide which is defined in § 300 as
‘murder’4. The second may be termed as ‘culpable homicide of the second degree5’. §
300 of IPC lays down the four conditions when culpable homicide amounts to murder.
The existence of any one of the four conditions laid down under § 300 of IPC turns
culpable homicide into murder6.

These are:7

a. The act by which the death is caused is done with the intention of causing death, or

b. It is done with the intention of causing such bodily injury as the offender knows to be
likely to cause the death of the person to whom the harm is caused, or

c. If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,
or

d. 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

1
PSA PILLAI, CRIMINAL LAW 642 (13th ed. 2017).
2
RATANLAL & DHIRAJLAL, LAW OF CRIMES 1379 (26th ed. 2007).
3
Akbar Hussain v. State of J&K, (2018) 16 SCC 85.
4
State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382.
5
Rampal Singh v. State of U.P., Criminal Appeal No. 2114 of 2009
6
Supra 63
7
§ 300 of PEN. CODE (1860)
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commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.

The very first condition of § 300 of I.P.C. states that if the act by which death is caused
(actus rea) is done with an intention of causing death (mens rea), such an act would
amount to murder. This is in detail discussed below:

That there was intention to kill

It is humbly submitted before the Hon’ble Supreme Court that, an intention to kill a
person brings the matter so clearly within the general principal of mens rea as to cause no
difficulty. The basic concept of mens rea revolves around the presence of guilt in the
mind of the person committing the act. This could be more easily and elaboratively
understood, using the Latin maxim actus non facitreum nisi mens sit rea8, which suggests
that an act would not make a person guilty unless the mind is also guilty.

A man’s intention can be gathered from his acts as every man is presumed to intend the
natural consequences of his act9 because the devil himself knows not the thought of
man10. The gravest species of murder and by its nature the simplest is the one in which
the death caused is clearly traceable to the murderous intention. There is no doubt about
the effect and no uncertainty about its cause.

Intention would be presumed, or it may be proved, or inferred from the proof of motive
are distinguished from intention. Avarice, love, hatred, jealousy and revenge are the
mainsprings of human action. A question of intention is a question of fact. In deciding the
question of intention, the nature of the weapon used, the part of the body on which the
part of the body on which the blow is given, the force of the blow and its number are
some are some of the factors which assume importance11.

That the intention is coupled with motive

8
Kartar Singh v. State of Punjab, 1994 SCC (3) 569.
9
Santosh Kumar v State thr. CBI, Criminal Appeal No. 87 of 2007.
10
Virsa Singh v. State of Punjab, AIR 1958 SC 465.
11
Ghasi Ram v. State, AIR 1952 Bhopal 25
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It is humbly submitted before the Hon’ble Supreme Court that the intention is the aim of
the act, of which the motive is the spring 12. Motive is the reason for an action i.e. what
impels a person to act, such as ambition, envy, fear, jealousy etc. It is a psychological
phenomenon which impels a person to do a particular act13. It also happens in love that
when a man loves his wife and see her having illicit relationship with any other person.
This might be the motive in mind of the appellant. Failure to bring on record any
evidence regarding motive does not, however, weaken a prosecution case, though the
existence of the same may strengthen the case14.

In this case the motive is clear that the Aryan had intimate relations with the wife of
accused and this is more than enough to kill.

In Gurmukh Singh v. State of Haryana 15, the Hon’ble Court quoted that following tests
could determine the intention of a person: Motive or personal enmity, whether incident
took place in the spur of the moment, the gravity, dimension and nature of injury, adverse
history of the accused, the conduct and behaviour of the accused towards the deceased,
nature of injuries16, circumstance in which the incident took place.

The direct and clear narrative of the relevance of motive can be drawn from the case of
Om Prakash v. State of Uttaranchal 17, wherein the Hon’ble Supreme Court rejecting the
plea that the prosecution could not indicate the motive for killing the three members of a
family ruled that failure to prove motive is irrelevant in a case wherein guilt of the
accused is proved. In the absence of direct motive for causing the homicide, the Hon’ble
Supreme Court has upheld the conviction of the accused under §302 of IPC.

Direct evidence is meant when the principle fact or factum probandum, is attested
directly by witnesses, things or documents to all other forms, the term circumstantial
evidence is applied; which may be defined, that modification of indirect evidence,

12
AUSTIN, LECTURES ON JURISPRUDENCE, STUDENTS’ (ed., 1920).
13
Nathuni Yadav v. State of Bihar, AIR 1997 SC 1808.
14
Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497; Ashok Kumar Barik v. State of Orissa, (1998)
15
Gurmukh Singh v. State of Haryana, 2009 SCC (15) 635
16
Parsuram Pandey v. State of Bihar, AIR 2004 SC 5608.
17
Om Prakash v. State of Uttaranchal, (2003) 1 SCC 648
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whether by witnesses, things or documents, which the law deems fit sufficiently
proximate to principle fact or factum probandum to be receivable as evidentiary of it18.

That the guilt of the accused can be proven beyond reasonable doubt

It is humbly submitted before the Hon’ble Supreme Court that before a man can be
convicted of a crime, it is usually necessary for the prosecution to prove that a certain
event or a certain state of affairs which is forbidden by the criminal law has been caused
by his conduct and that conduct was accompanied by a prescribed state of mind. For a
crime it is not necessary to prove that the crime must be seen to have been committed and
must, in all circumstances be proved by the ocular evidence by examining before the
court those persons who had seen its commission19.

It is now a well-settled proposition that with a view to base a conviction on circumstantial

evidence, the prosecution must establish all the pieces of incriminating circumstances by
reliable and clinching evidence and the circumstances so proved must form such a chain
of events as would permit no conclusion other than one of guilt of the accused. The
circumstances cannot be on any other hypothesis. It is also well-settled that, suspicion,
however grave it may be, can’t be a substitute for proof and the courts shall take utmost
precaution when finding an accused guilty on basis of circumstantial evidence, as was
held by the Apex Court in Ramareddy Rajesh Khanna Reddy’s case 20. In the instant case,
there is establishment of all pieces of incriminating circumstances by reliable and
clinching evidence.

In Padala Veera Reddy v. State of A.P 21, the Apex Court held that when a case rests upon
circumstantial evidence, the following tests must be satisfied:

1) the circumstances from which an inference of guilt is sought to be drawn, must be

cogently and firmly established;

18
SARKAR, LAW OF EVIDENCE 142 (19th ed. 2016).
19
RATANLAL &DHIRAJLAL, LAW OF CRIMES, 1860 1485 (26TH ED. 2007).
20
Ramareddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172.
21
Padala Veera Reddy v. State of A.P., (1991) SCC (Cri) 407; Chattar Singh v. State of Haryana, (2008) 14
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2) those circumstances should be of a definite tendency unerringly pointing towards guilt

of the accused;

3) the circumstances, taken cumulatively, should form a chain so complete that there is
no escape from the conclusion that within all human possibility the crime was committed
by the accused and none else; and

4) the circumstantial evidence in order to sustain conviction must be complete and

incapable of explanation of any other hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence.

That there has been corroboration of material evidences

In this case, On July 15, 2014, Maria confessed to Veer of her illicit intimacy with Aryan.
Enraged at the conduct of Aryan, Veer went to his cabin, took a revolver and cartridges,
loaded the same, went to the flat of Aryan entered his bed-room and shot him dead. It is
simply a case of murder.

Somnath saw Veer holding the gun after the gunshot and the statement of Aryan clearly
indicate that Veer murdered him.

In Ganeshlal v. State of Maharashtra 22 the appellant was prosecuted for the murder of his
wife which took place inside his house. It was observed that when the death had occurred
in his custody, the appellant is under an obligation to give a plausible explanation for the
cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the
prosecution case coupled with absence of any explanation were held to be inconsistent
with the innocence of the accused, but consistent with the hypothesis that the appellant is
a prime accused in the commission of murder of his wife.

It is humbly submitted to the Hon’ble Supreme Court that, the facts established are
consistent with the hypothesis of the guilt of the accused and a chain of evidence is
complete as not to leave any reasonable ground for the conclusion with the innocence of

22
Ganeshlal v. State of Maharashtra (1992) 3 SCC 106
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the accused. Hence, it shows in all human probability the act has been done by the
accused.

In the light of above assertion it is humbly submitted before the Hon’ble Supreme Court
that, the appellant has committed the offence with requisite mens rea or intention.

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CONTENTION 2:THAT THE ACCUSED HAS COMMITTED THE OFFENCE

OF CRIMINAL TRESPASS AS UNDER § 447 OF THE INDIAN PENAL CODE,
1860.

It is humbly submitted to the Honourable Supreme Court that, as already known, § 441 of
I.P.C23. criminal trespass, and is defined as—

Whoever enters into or upon property in the possession of another with intent to commit
an offence or to intimidate, insult or annoy any person in possession of such property, or
having lawfully entered into or upon such property, unlawfully remains there with intent
thereby to intimidate, insult or annoy any such person, or with intent to commit an
offence, is said to have committed "criminal trespass".

Criminal trespassing is made punishable with imprisonment of either description for a

term which may extend to three months, with fine or which may extend to five hundred
rupees, or with both, under § 447 I.P.C.

To punish for criminal trespass § 447 I.P.C. the prosecution is to provide:

(a) Intention of doing one of the acts specified under Section 441 of the Indian Penal
Code24; Perusing the above, there is a need to discuss § 441 and the ingredients required
for the conviction under § 441. the first and foremost requirement is to prove:

a) That the accused entered into the property which is not his own and is in the
possession of another with intent to commit an offence against the owner of such
property.

b) That the accused has entered lawfully into or upon such property but remained there
unlawfully with intent thereby to intimidate, insult or annoy any such person, or with
intent to commit an offence.

It is submitted that in the present case, the accused Maj Veer Singh has although entered
the house lawfully which is not his own and remains there unlawfully with the intention
to murder the deceased this ascertains that vital ingredient is fulfilled. In this view of the
23
PEN. CODE (1860) (Herein referred as I.P.C.).
24
State vs Hari Ballabh And Ors.AIR 1963 Raj 19, 1963 CriLJ 223
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matter, it must be further hold that the acquittal of the accused-respondents in the present
case was wrong and the accused is liable to be punished as given under § 447 I.P.C. This
will be further explained in detail.

There was an intention to commit an offence against the person in possession of the
property.

It is humbly submitted that the accused had committed criminal trespass according to the
definition of criminal-trespass provided under § 441 I.P.C. To bring home the offence of
criminal-trespass, the basic ingredient that is entering in the property of the owner with
an intention to commit an offence must be proved 25, which is very clear as right after
finding out about the affair of his beloved wife with his close friend Maj Veer Singh with
his loaded revolver went straight to Raj Aryan’s office without prior notice or
information, and when he couldn’t find him there he then went to his flat yet he didn’t
informed or called, in such a case any prudent person would get the hint of what the
accused would do or try to do, furthermore carrying the gun and looking for the deceased
or entering in his property without permission, is in itself explains the intention. Another
vital element required in order to be punished under section 447 is that the victim must be
in actual physical possession of the property where the accused has entered, which is
proved the victim was in his flat which was in his possession. Lastly, the accused upon
entering lawfully has remained there with the intentions mentioned in section 441, in
such a scenario the accused is liable to get convicted under § 447 I.P.C for trespass 26.
Thus, fulfilling the required elements for proving the accused guilty of criminal trespass,

Therefore, keeping all the evidences in view it should be noted that the accused if guilty
of criminal trespass as given in section 441 IPC, and shall be punished for the same as per
section 447 IPC.

25
Sunil Kumar Pal vs Sadan Chatterjee And Ors.,AIR 1951 Cal 297
26
Subramani And Ors vs State Of Tamil Nadu, 2002 (SC), (crl.) 1225
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CONTENTION 3: THAT THE DEFENCE UNDER § 100 AND 80 OF THE

INDIAN PENAL CODE, 1860 ARE NOT AVAILABLE.

It is humbly submitted before the Hon’ble Supreme Court that the accused has committed
the offence under section 302 I.P.C and could not take defence under section 80 I.P.C.
Section 80 I.P.C is Accident in doing a lawful act which is read as :

Nothing is an offence which is done by accident or misfortune, and without any criminal
intention or knowledge in the doing of a lawful act in a lawful manner by lawful means
and with proper care and caution. Illustration A is at work with a hatchet; the head flies
off and kills a man who is standing by. Here, if there was no want of proper caution on
the part of A, his act is excusable and not an offence.

In India if an accused pleads an exemption within the meaning of section 80 of the Indian
Penal Code, there is a presumption against him and the burden to rebut that presumption
lies on him.27

First, though the plea of defence of accident is a complete answer under Section 80 of the
I.P.C, it is not attracted to the facts of this case. Section 80 says that if anything is done
by accident or misfortune it would not be an offence 28. To claim the benefit of this
provision it has to be shown: that the act in question was without any criminal intention
or knowledge; that the act was being done in a lawful manner by lawful means; and that
act was being done with proper care and caution. The accused took a gun from his office
and loaded the same and then went to Raj Aryan the act itself shows that there was some
criminal intention on the part of accused of the accused otherwise there was no need to
carry a loaded gun to meet a 15 year old friend. So the defence under section 80 is not
available here.

Section 80 protects an act done by accident or misfortune and without any criminal
intention or knowledge in the doing of a lawful act in a lawful manner by lawful means
and with proper care and caution29. The primordial requirement of Section 80 is that the

27
K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 : (1962) 1 Cri LJ 521
28
Atmendra v. State of Karnataka, (1998) 4 SCC 256 : 1998 SCC (Cri) 827
29
Shankar Narayan Bhadolkar v. State of Maharashtra, (2005) 9 SCC 71 : 2005 SCC (Cri)
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MEMORIAL ON BEHALF OF THE APPELLANT
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act which killed the other person must have been done “with proper care and caution. In
this case it is evident that the shooting was not an example of proper care and caution.

While discussing section 80 of the Penal Code, 1860 the true import of the words ‘proper
care and caution’ should be explained which really constituted one of the essential
elements of an ‘accident’30

Where the plea raised in defence falls in this section, the burden of proving the case
under the defence shall lie on the accused and he shall naturally be liable to conviction
forthwith in case the prosecution has succeeded to establish the charge beyond reasonable
doubt, considering that the Courts of law invariably, first of all, consider the prosecution
case whether the ingredients of the offence of which the accused is charged have or have
not been established beyond reasonable doubt. It is when the Court is of opinion that the
charge has been established beyond reasonable doubt that the defence plea is looked into.

Consequently, at the initial stage the Court shall have to consider whether the prosecution
has established beyond doubt that the death of the person was caused by or is the result of
the act done by the accused. If so satisfied, the defence plea shall be looked into whether
the accused has succeeded to rebut the presumption, that, is to disprove the absence of the
circumstances contemplated by the above sections31. Once the accused succeeds in
establishing his plea, he would deserve acquittal on account of there being no guilty
intention; it is a different thing that he may be liable to conviction of the lesser offence;
but if the accused is not successful in disproving the absence of circumstances, the Court
of law shall still have to see whether the ingredient of criminal intention, that is, mens rea
has been established by the prosecution beyond reasonable doubt. It is then that a
reasonable doubt created in the mind of the Court as to the defence plea shall lead to the
inference that the guilty intention has not been established beyond reasonable doubt and
on this ground the guilt of the accused as to the main offence shall be deemed not to have
been established beyond doubt and he shall be acquitted.

Defence under Section 100 is also not available

30
Bhupendra singh A. Chudasama v. State of Gujarat (1998) 2 SCC 603 : 1998 SCC (Cri) 668
31
Rishi Kesh Singh And Ors. vs The State, AIR 1970 All 51, 1970 CriLJ 132
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On a joint reading of Sections 96, 97, 99, 100 and 351 IPC, it is clear that if the Court has
to extent the benefit under Section 100 IPC to an accused, who voluntary caused death to
another, the following facts must be established: i) that deceased was the assailant, ii) that
deceased committed the offence of "assault", iii) that such assault by the deceased
occasioned in exercise of private defence by accused and iv) that such assault committed
by the deceased was such as may reasonably cause apprehension that death or grievous
hurt would be the consequence, had he not exercised his right of private defence.

Thus, one of the most important requirement under Section 100 IPC is commission of
offence of assault by deceased. If the accused who voluntary causes death to another, he
has to establish that deceased, as the assailant32, committed the offence of "assault" of the
nature stated in firstly or secondly of Section 100 IPC and then alone, he will be entitled
to the benefit under Section 100 IPC.

Since the court is bound to regard that circumstances which the accused proposes to
prove in his favour to get benefit under Section 100 IPC do not exist and also that such
non-existence is proved against him, it is actually a tough process, to discharge the
burden under Section 105 of Evidence Act. However, as argued by learned defence
counsel, the degree of proof is not as strict as that on prosecution and accused need only
discharge his burden on preponderance of probabilities. That does not mean that he need
not disprove the presumption which has to be drawn by the court against him under
Section 105 of Evidence Act. The accused has to prove existence of circumstances which
would bring his case under Section 100 IPC or other General Exceptions by rebutting the
mandatory presumption of absence of such circumstances, on the scale of preponderance
of probabilities.

As provided by Section 100 IPC the right of private defence extends to voluntary causing
of death of the assailant if the assault is such as would reasonably cause an apprehension
that death or grievous hurt would otherwise be the consequence. There is no material on
record from which it is possible to draw such an inference. As stated earlier, the plea
raised by the respondent is vague and does not explain the circumstances.

32
Laxman Singh v. Poonam Singh, (2004) 10 SCC 94 : 2004 SCC (Cri) 1514
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MEMORIAL ON BEHALF OF THE APPELLANT
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It is humbly submitted before the Hon’ble Supreme Court that the accused has committed
the offence under section 302 I.P.C and could not take defence under section 100 as the
defence has failed to prove existence of circumstances which would bring his case under
Section 100 IPC.

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MEMORIAL ON BEHALF OF THE APPELLANT
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PRAYER

In the light of the facts stated, issues raised, arguments advanced &authorities cited the
counsel on behalf of the humbly prays before the Hon’ble Supreme Court to kindly
adjudge and declare,

1. That there was no Fair Trial.

2. That the Accused has not committed the offence of Criminal Trespass as under §
449 of the Indian Penal Code, 1860.
3. That the Accused has not committed the offence of Murder as under § 302 of the
Indian penal code, 1860.
4. That the accused should be Acquitted from any such charges.

Or to pass any appropriate relief that the Hon’ble Court may deem fit and is in the best
interest of Justice, Equity and Good Conscience,

And for this act of kindness, the counsel on behalf of the Appellant, as duty bound shall
forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_______________________________

SD/-

COUNSELS FOR THE APPELLANT

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MEMORIAL ON BEHALF OF THE APPELLANT