MOOT COURT EXERCISE

CAMPUS LAW CENTRE

TEAM-38

IN THE HON’BLE HIGH COURT OF BOMBAY

FOR THE OFFENCES CHARGED UNDER SECTION 302 OF THE INDIAN

PENAL CODE, 1860
SESSIONS CASE NO. OF 2020
─.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.

IN THE MATTER OF:

STATE OF MAHARASHTRA ……………PROSECUTOR

v.
JEROME ……………DEFENDANTS
-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-
MEMORIAL ON BEHALF OF DEFENDANT

Submitted by: - Virat Pratap Singh; College Roll no.182242;

Examination Roll No. 180762
 TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………….. 3

STATEMENT OF JURISDICTION………………………………………………….. 4

STATEMENT OF FACTS…………………………………………………………… 5

STATEMENT OF ISSUES…………………………………………………………… 7

SUMMARY OF ARGUMENTS……………………………………………………... 8

ARGUMENTS ADVANCED………………………………………………………… 9

PRAYER……………………………………………………………………………… 21
 INDEX OF AUTHORITIES

STATUES:
• INDIAN PENAL CODE, 1860

• THE CODE OF CRIMINAL PROCEDURE, 1973

• THE INDIAN EVIDENCE ACT, 1872

BOOKS:
• THE INDIAN PENAL CODE – RATANLAL & DHIRAJLAL

• PSA PILLAI’S CRIMINAL LAW – 14TH EDITION

• THE CODE ON CRIMINAL PROCEDURE – RATANLAL & DHIRAJLAL
• THE LAW OF EVIDENCE – RATANLAL & DHIRAJLAL

TABLE OF CASES:
1) State of Maharashtra v M. H. George (1965 AIR 722, 1965)
2) Mulk Raj Singh v Union of India (2009)
3) Jassa Singh v State of Haryana ( AIR 2002 SC 520)
4) Wassan Singh v State of Punjab [1996 Cr L J 878 (SC, 1996) 1 SCC 458]
5) Levets Case (1 Hale PC 42)
6) Chirangi v State (AIR 1952 Nagpur 282)
7) Dhara Singh v Emperor (AIR 1947 Lah 249)
8) Emperor V Jagmohan Thukral (AIR 1947 All 99, 102)
9) State of Orissa v Karo Ghasi ( 1978 Cr L J 1305)
10) Waryam Singh v Emperor (AIR 1926 Lahore Page No. 504)
11) Bonda Kui v Emperor [AIR (30) 1943 Patna 64]
12) Puran Singh and others v State of Punjab (AIR 1975 SC 1674)
13) Munshi Ram and others v Delhi Administration (1967)
14) Amjad Khan v The State (1952 SCR,567)
15) State of Madhya Pradesh v. Udham singh [(2019) SCC 4251]
 STATEMENT OF JURISDICTION

THE COUNSEL ON BEHALF OF THE ACCUSED-APPELANTS HAVE SUBMITTED

MEMORANDUM OF APPEAL UNDER SECTION 377 OF THE CODE OF CRIMINAL
PROCEDURE, 1973, TO THE HON’BLE HIGH COURT OF JUDICATURE AT
BOMBAY. THE RESPONDENT SUBMITS TO THIS JURISDICTION.

Section 377 – Appeal by the State Government against sentence.

1) Save as otherwise provided in sub-section 2), the State Government may, in any case of
conviction, on a trial held of any Court other than a High Court, direct the Public Prosecutor
to present an appeal against the sentence on the ground of its inadequacy-

a) to the Court of session, if the sentence is passed by the Magistrate and

b) to the High Court, if the sentence is passed by any other Court.

2) If such conviction is in a Case in which the offence has been investigated Police
Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, [the Central
Government may also direct] the Public Prosecutor to present an appeal against the sentence
on the ground of its inadequacy-

a) to the Court of session, if the sentence is passed by the Magistrate; and

b) to the High Court, if the sentence is passed by any other Court.

3) When an appeal has been filed against the sentence on the ground of its inadequacy, the
Court of Session or, as the case may be, the High Court shall not enhance the sentence except
after giving to the accused a reasonable opportunity of showing cause against such
enhancement and while showing cause,the accused may plead for his acquittal or for the
reduction of the sentence.

4) When an appeal has been filed against a sentence passed under section 376, section 376A,
section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB,
or section 376E of the Indian Penal Code(45 of 1860), the appeal shall be disposed of within
a period of six months from the date of filing of such appeal.
 STATEMENT OF FACTS

1) This case is about the alleged murder of Ms. Maria by Mr. Jerome (Accused), who is
physically handicapped by birth, both his legs were amputated. Since his childhood he
relied on prosthetics. Despite severe disability, accused bravely made an International
Athletic career, won various National and International medals including in Paralympics
and Olympics of 2012 and represented India in them. He was also awarded an Honorary
Doctorate for his humanitarian work in the world of prosthetic.

2) Accused met the deceased who was a successful model on 4th November, they quickly
became close and intimate. Both of them had some petty conflict between them like other
young couples. On the night of 13th Feb 2013, the deceased slept over at the accused’s
home.

3) In the early hours of the following morning, the accused woke up and sat on his bed and
saw that the deceased was also awake as she rolled over and spoke to him and she was
feeling warm. Accused got up from his bed and got 2 fans from the balcony and closed
the door and curtains. It was very dark in the room. And then suddenly he heard the sound
of a window opening from the bathroom. The bathroom is situated down a short passage.
Accused thought that there is some intruder who has entered through the bathroom
window. He quickly got his 9mm pistol from under the bed and whispered to the deceased
(Maria) to get down and phone the police before going to the bathroom. He wasn’t wearing
his prosthetics and started shouting and screaming towards the intruder to get out of the
house. Upon reaching near the bathroom, he stopped shouting and he heard the toilet door
slam. He saw there was no one in the bathroom but the toilet door was closed. He shouted
to call police to the deceased assuming her to be in the bedroom.

4) After prompt noise coming from the toilet, he shot 4 rounds at the toilet door and he came
to the bedroom and saw that the deceased wasn’t there. Then he went back to the bathroom
to open the toilet door which was locked. He put up his prosthetic legs and started shouting
for help and then he saw the key and opened the toilet door and saw that the deceased was
slumped with her weight on the toilet bowl. He held her and pulled her out of the bathroom
and then he called Mr. Raj and Dr. Dilip, followed by the call made to the paramedic
organisation and the estate’s security. Mr. Raj and Dr. Dilip, the latter a medical
 practitioner arrived at the accused’s home and found the accused to be in a highly
emotional state, kneeling alongside the deceased who was lying on the floor at the foot of
the stairs leading to the sleeping quarters of home. The severity of deceased injuries was
such that she was not breathing and Dr. Dilip was unable to find a pulse.

5) The accused was tried for offence under Section 302 of IPC for alleged murder of the
deceased Maria to which he pleaded not guilty and the trial court found him guilty of
culpable homicide not amounting to murder and held that there was no intention to kill
the deceased and accused shot the deceased believing that she was an intruder and accused
had erroneous belief that his life was in danger therefore cannot be found guilty of murder.

6) Hence this case of appeal before the Hon’ble High Court comes by the prosecution.
 STATEMENT OF ISSUES

ISSUE NO. 1: Whether the accused has committed an offence of Murder?

SUB ISSUE NO.1: Whether there was an intention to kill present in the accused?

SUB ISSUE NO. 2: Whether accused is entitled for defence under Section – 79?

SUB ISSUE NO. 3: Whether the plea of self-defence under Section – 103 and Section –
100 in admissible under given facts and circumstances?

ISSUE NO. 2: Whether the accused falls under Criminal Test enunciated by the Hon’ble
Supreme Court?
 SUMMARY OF ARGUMENTS

ISSUE NO. 1: Whether the accused has committed an offence of Murder?

It is humbly submitted before Hon’ble court that the accused has not committed
any act which falls within the ambit of Sec-302 of IPC, as there was no intention to kill the
deceased and the act of the accused is justified under Sec-79 (mistake of facts) and Sec-100 &
Sec-103 (right to private defence) of IPC.

⚫ SUB ISSUE NO.1: Whether there was an intention to kill present in the accused?

Accused does not have any intention to kill the deceases and it can be ruled out
from the circumstantial and material evidence on the record that accused has acted under the
mistaken belief. The trial court in its judgement also admitted that the accused did not have any
intention to kill the deceased.

⚫ SUB ISSUE NO. 2: Whether accused is entitled for defence under Section – 79?

The accused is entitled for the defence under Sec-79 of IPC, as when the accused
fire the shot, he bonafide believed that it was intruder in the toilet and the deceased was in the
bedroom and trial court also admitted that the accused shot the deceased believing that she was
an intruder and accused had erroneous belief that his life was in danger.

⚫ SUB ISSUE NO. 3: Whether the plea of self-defence under Section – 103 and Section –
100 is admissible under given facts and circumstances?

In the present case, the accused is justified in exercising his right of private
defence, as it was the case of house trespass and in such circumstances accused has a complete
right to defend both his property and his life. So the action of the accused is totally justified
under the Sec-100 & Sec-103 of IPC.

ISSUE NO. 2: Whether the accused falls under Criminal Test enunciated by the Hon’ble
Supreme Court?

Your Honour accused does not fall under criminal test enunciated by the
Supreme Court of India. There was no planning or criminal intention and also the accused does
not have any criminal record in the past.
 ARGUMENTS ADVANCED

ISSUE NO. 1: Whether the accused has committed an offence of Murder?

It is most humbly submitted that the accused has not committed any act which falls
within the ambit of Sec–302 of IPC. As the accused did not have any intention to kill the deceased
and the act of the accused is justified under Sec–79 of IPC and under Sec–100 and Sec–103 of IPC

SUB ISSUE NO. 1: Whether there was an intention to kill present in the accused?

The object of the law is to punish a person with a guilty mind. It does not want to put behind bars
an innocent person who may have had the misfortune of being involved in an incident and event
which he did not have the intention of participating in.

The idea is expressed by the maxim actum non facit reum nisi mens sit rea. The maxim lays
down that the intent and the act must both concur to constitute a crime. In simple words, it means
an act done by a person will not be considered as crime unless it is done with a guilty mind.

In State of Maharashtra v M. H. George, the Supreme Court held that criminal intention is a
psychological fact which need to be proved even with regards to offence under special act unless
it’s specially ruled out or ruled out by necessary implication.

It is very pertinent from the present case that the accused did not have any criminal intention or
motive to kill the deceased. It is inferred that there was no intention to kill the deceased as after
mistakenly killing the deceased, the accused called his neighbours for help and Mr. Raj and Dr.
Dilip when arrived at the accused’s home, found the accused in a highly emotional state, kneeling
alongside the deceased, who was lying on the floor at the foot of the stairs.

On the sole basis of the petty issues, inferred from the text messages of the deceased and the
accused, we cannot concur that the accused can constitute a motive to kill her girlfriend (Miss
Maria) as these types of petty issues are common in every relationship. Despite of these petty
issues, the deceased still at times slept over at the accused’s home. This act of the deceased inferred
that there was no animosity between them.

The trial court itself admitted that the accused did not have intention to kill the deceased.
SUB ISSUE NO. 2: Whether accused is entitled for defence under Section – 79?

Section – 79: Act done by a person justified or by mistake of fact believing

himself justified, by law

Nothing is an offence which is done by any person who is justified by law, or who by reason of a
mistake of fact and not by the reason of mistake of law in good faith, believing himself justified
by law in doing it.

Mistake as an extenuating factor implies a rule that when a person who is ignorant of existence of
irrelevant facts or has mistaken them, does some wrongful act, he neither had intended nor foresaw
the resulted unlawful consequences. His trial, therefore, should proceed on the fiction that the facts
were as he had mistakenly believed them to be, and not as they really were.

A court has to determine his guilt on the basis of ‘believed’ facts and not the ‘real’ facts. A mistake
negatives the existence of a particular intent or foresight, which penal law requires making a person
liable, rather than actus reus. Mistake as an absolving factor allows the court to look into mind’s
operation of the wrongdoer1.

The ignorant of fact is an excuse as it precludes the accused from the forming of mens rea. It
negatives the existence of mens rea2.

The factual finding in the present case is that when the accused fired the shot, he bona fide
believed that the deceased was in the bedroom because when the accused woke up in the early
hours of the morning, he found that the deceased was lying on the bed beside him as she spoke to
him and after bringing the fans from the balcony, the accused heard sounds coming from the
bathroom which startled him into thinking that there was an intruder in the bathroom. As it was
very dark in the room and he assumed that the deceased was still in the room, he immediately
grabbed his 9mm pistol where he kept it under the bed and whispered to the deceased to get
down and call the police before proceeding to the bathroom.

Proving these factual findings to be true, the trial court also admitted that the accused shot the
deceased by believing it to be an intruder, therefore, the accused is entitled for defence under
general exception of mistake of fact (Sec–79 of IPC).

1
Jaswantrai Maniklal Akhaney v State of Bombay (AIR 1956 SC 575)

2
State of Maharashtra v M. H. George
In Mulk Raj Singh v Union of India (2009) court stated what the necessary condition for
invoking Section–79 are

a) The state of things believed to exist would, if true, have justified the act done.

b) The mistake must be reasonable.

c) The mistake must be related to fact and not to law

THE STATE OF THINGS BELIEVED TO EXIST WOULD, IF TRUE, HAVE

JUSTIFIED THE ACT DONE

In the present case, the act of right of private defence of the accused is justified under Sec-103
(when the right of private defence of property extend to causing death) and Sec–100 (when the
right of private defence of the body extends to causing death).

In Jassa Singh v State of Haryana ( AIR 2002 SC 520), it is stated that a house trespassing
committed under such circumstances may reasonably cause apprehension that death or grievous
hurt would be the consequences, justifies death as an assailant as it is enumerated as one of the
offence stated under Sec–103.

THE MISTAKE MUST BE REASONABLE

The counsel most humbly submits that the mistake of fact on the part of the accused was
reasonable. The incident took place in the early hours of February 14. The room was very dark
and the only source of light in the room was a small LED. The accused had awoken up suddenly
due to heat and had a word with the deceased who was lying in the bed. It is pertinent to note
that the time gap between the occurrence of the entire murder and the time when the accused
woke up was very less. The accused was still not fully awake when he heard a noise in the
bathroom. The accused being a rich and famous personality feared that there is an intruder in his
house and immediately proceeded towards the bathroom without putting his prosthetics after
telling his girlfriend to call the police. Since the room was very dark, it was not possible for him
to clearly comprehend that his girlfriend is not in the room and his bed anymore. Even when he
heard the voice his first instinct was to protect his girlfriend and therefore, he asked her to get
down and call the police.
Moreover, he called and shouted multiple times for the intruder and her girlfriend. He was so
vulnerable and scared that he proceeded in search of the intruder even without wearing his
prosthetics. Had the deceased responded to accused shouting and had he known that it was his
girlfriend, whom he dearly loved, in the bathroom he would have never shot her.

The fact that when the accused first left the room the deceased was lying in her bed and the lack
of proper lighting in the room coupled with the fact that the accused had just woken up and was
still not fully conscious when he first heard the voice and the non-responsiveness of his girlfriend
on being called out multiple times are reasonable factors to commit the mistake of fact.
Moreover, the accused was also overpowered with the fear of the intruder harming the accused
and his beloved, the deceased. Therefore, whatever he did was driven by an instinct to protect
himself and his girlfriend. It is therefore safe to say that the mistake of fact on the part of the
accused was reasonable.

THE MISTAKE MUST RELATE TO FACT AND NOT TO LAW

The mistake was that the accused believed the deceased to be the intruder and it is clearly a
mistake of facts and not of law.

All the three conditions were justified by the act done by the accused, so he is entitled
to take the defence under Sec–79 of IPC.

In Levets Case (1 Hale PC 42), the accused killed his servant thinking her to be an intruder
during the night, but it was resolved by seeing the facts and circumstances that neither it was
murder nor manslaughter nor felony.

In Chirangi v State (AIR 1952 Nagpur 282), it was observed that the accused in delusion killed
his own son believing him to be a tiger. It was held that he is entitled to benefit of Sec–79 of
IPC.

In Dhara Singh v Emperor (AIR 1947 Lah 249), it was held that the accused was labouring
under a mistake of fact with regard to the identity of the persons who had surrounded his house
followed by an exchange of fire thinking them to be his adversaries and by reason of that mistake
of fact. Explanation 1 to Sec–99 gave him a right of private defence. This again was a case where
the accused shot and killed another person under a mistaken belief, in good faith that such person
had intruded his house for the purpose of killing him and that he had a reasonable belief that he
was entitled to open fire in exercise of his supposed right of private defence.
In Emperor V Jagmohan Thukral (AIR 1947 All 99, 102), the accused while travelling from
Saharanpur to Dehradun, near the Mohand pass, picked up the loaded gun when he saw the eye
of an animal and fired at it which unfortunately hit 2 military officers. There was nothing to
show that the accused knew that there was a military camp and an exercise was going on. The
question was whether the accused was liable under Sec–307 of IPC. The court held that accused
was protected under Sec–79. That was a case where the accused under bona fide mistake shot an
object thinking them to be an animal and the mistake was held to one made in good faith.

In State of Orissa v Karo Ghasi ( 1978 Cr L J 1305), Orissa HC observed that the death caused
by shooting an arrow under bona fide belief that object aimed at was an animal, whereas, it was a
man. Their lordship extended the benefit of Sec–79 of IPC to the accused and acquitted him from
all offences.

In Waryam Singh v Emperor (AIR 1926 Lahore Page No. 504) and Bonda Kui v Emperor
[AIR (30) 1943 Patna 64], the accused assaulted a man believing him to be a ghost and the
assault proved fatal. Their lordship held that it is neither guilty under Sec–302 nor Sec–304 nor
Sec–304(A) and gave him benefit of mistake of fact.

So, seeing the facts and circumstances of the present case and the case laws, the accused is
entitled to have the defence of Sec–79 of IPC.

SUB ISSUE NO. 3: Whether the plea of self-defence under Section – 103 and Section –
100 in admissible under given facts and circumstances?

The state has the duty to protect its citizens and their property from harm. However,
circumstances may arise when the aid of state machinery is not available and there is imminent
danger to a person or his property. In such situations, a person is allowed to use force to ward-off
the immediate threat to his or someone else’s person or property. This is the right of private
defence. The people are endowed with this right so that they can defend themselves and their
property and not hesitate due to fear of prosecution.

In India, this is recognized as a fundamental right under Article 21 of the Constitution of

India (“COI”) which casts duty upon the State to protect the life of its citizens. But that does not
mean that a person has to wait for the help of State when he faces imminent threat to his life, limbs
and property.

Theory about Private defence

Bentham stated about the right of defence is absolutely necessary. The vigilance of magistrate can
never make up for the vigilance of each individual on his own behalf. The fear of the law can never
restrain bad men as the fear of the sum total of individuals ‘resistance. Take away this right and
you became in so.

Russel has justified in resisting by force anyone whom manifestly intends and endeavors by
violence or surprise to commit a known felony against either his person, habitation or property, he
is not obliged to retreat, and may not merely resist the attack where he stands but put may indeed
pursue his adversary until and danger is ended.

Does the accused have the right of private defence?

‘Section 96 - Things done in private defence —nothing is an offence which is done in

the exercise of the right of private defence.’

According to Sec. 96 every Individual has a Right to Private Defence against an

Apprehension of Danger to his or others life or property and he/she can exercise their right
to private defence which has to be proportionate to the apprehension of danger and should
not exceed its legitimate purpose. Right to Private Defence does not allow for an offensive
attack, it only allows such actions taken to avert the apprehension of danger.3

Section 97 – Right of private defence of body and of property – Every person has a
right, subject to the restriction contained in Sec–99 to defend –

First – His own body, and the body of any other person, against any offence affecting the
human body;

Secondly – The property, whether movable or immovable, of himself or of any other

person against any act which is an offence, falling under the definition of theft, robbery,

3
Babulal Bhagwan Khandre vs. State of Maharashtra AIR 2005 SC 1460
mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or
criminal trespass.

Section 100 – When the right of private defence of the body extends to causing death
— The right of private defence of the body extends, under the restrictions mentioned in the
last preceding section, to the voluntary causing of death or of any other harm to the
assailant, if the offence which occasions the exercise of the right be of any of the
descriptions hereinafter enumerated, namely:—

First —Such an assault as may reasonably cause the apprehension that death will otherwise
be the consequence of such assault;

Secondly — Such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault;

Thirdly — An assault with the intention of committing Rape;

Fourthly — An assault with the intention of gratifying Unnatural lust;

Fifthly — An assault with the intention of Kidnapping or Abducting;

Sixthly — An assault with the intention of wrongfully confining a person, under

circumstances which may reasonably cause him to apprehend that he will be unable to have
recourse to the public authorities for his release.
Seventhly —An act of throwing or administering acid or an attempt to throw or administer
acid which may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such act.

Section 103 – When the right of private defence of property extends to causing death
– The right of private defence of property extends, under the restrictions mentioned in
Sec–99, to the voluntary causing of death or of any other harm to the wrong-doer, if the
offence, the committing of which, or the attempting to commit which, occasions the
exercise of the right, be an offence of the descriptions herein after enumerated, namely:–

First – Robbery;

Secondly – Housebreaking by night;

Thirdly – Mischief by fire committed on any building, tent or vessel, which building, tent
or vessel is used as a human dwelling, or as a place for the custody of property;
 Fourthly – Theft, mischief or house trespass, under such circumstances as may reasonably
cause apprehension that the death or grievous hurt will be the consequences if such right
of private defence is not exercised.

By reading these sections together, the inference can be drawn from the proposition that
the accused has right of private defence to defend his property and body.

Under Sec–96, Sec–97 and Sec–100, it is clear that the person has the right of private
defence of body and of property from any apprehension from harm or injury.

According to Sec–103, Secondly, the right of private defence of property can extend to
causing death under circumstances of house breaking by night.

In Jassa Singh v State of Haryana (AIR 2002 SC 520), a house trespassing committed
under such circumstances may reasonably cause apprehension that death or grievous hurt
would be the consequences, justifies death as an assailant as it is enumerated as one of the
offence stated under Sec–103 of IPC.

In Wassan Singh v State of Punjab [1996 Cr L J 878 (SC, 1996) 1 SSC 458], it was
stated that reasonable apprehension of the accused that death or grievous hurt will be
caused to him, however is required to be judged from the subjective point of view of the
accused and it cannot be subjected to microscopic and pedantic scrutiny.

In the present case, it was the case of housebreak by night, so by Sec–103, accused is
justified in using the right of self-defence as per the circumstances in order to protect
himself, his property and the deceased.

And at that time, the Danger was imminent and he could take the help of state machineries
(police), so he had to act himself for his safety of property and life.

Commencement and Continuance of right of private defence

Section–102 – Commencement and continuance of right of private defence of the

body. – The right of private defence of the body commences as soon as reasonable apprehension
of danger to the body arises from an attempt or threat to commit the offence though the offence
may not have been committed; and it continues as long as such apprehensions of danger to the
body continues.
 Section–105 – The Commencement and continuance of right of private defence of
property. – The right of private defence of property commences when a reasonable apprehension
of danger to the property commences.

The right of private defence of property against the theft continues till the offender has effected
his retreat with the property or either the assistance of the public authority is obtained, or the
property has been recovered.

The right of private defence of property against the robbery continues as long as the offender
causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear
of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against the criminal trespass or mischief continues as long
as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the
house trespass which has been begun by such house-breaking continues.

Under Sec–105, it is stated that the right of private defence of property commences when a
reasonable apprehension of danger to the property commences. It is further stated that the right of
private defence of property against house-breaking by night continues as long as the house trespass
which has been begun by such house-breaking continues.

Under Sec–102, the right of private defence of the body commences as soon as the reasonable
apprehension of danger to the body arises from an attempt or threat to commit the offence though
the offence may not have been committed and it continues as long as such apprehension of danger
to the body continues.

In the present case, the right of private defence of the accused started as soon as the intruder
believed to have entered in the house by night. At that time of the night, it was reasonable that the
accused would have felt a reasonable apprehension of danger of his and the deceased’s life and his
property.

Was the act of the accused justified?

The law does not require that a person placed in such circumstances should weigh the argument,
for and against, an attack in golden scales. A private citizen whose life is threatened by grave
danger need not wait for the state and should try to protect his life and property as best as he can
by exercising the means he has at his own disposal. However, where aid is available, it must be
obtained.

In the present case, the accused was vulnerable due to his disabilities. He was extremely fearful,
overcome with his sense of terror and vulnerability in the moment before he fired the gun. The
shooting was a reflex action after his slow burn of vulnerabilities led to a point at which he had
enough. He was anxious and acted on primal instinct. It was an involuntary action where the
accused’s mind did not control his behaviour.

And in order to defend from the imminent danger, he went towards the bathroom without wearing
his prostheses making him more vulnerable. Due to his disability, he was not in the favourable
situation to defend himself.

And if the intruder had attacked the accused, he for sure could not defend himself against the attack
and any mishappening could have happened.

So, he has reasonable apprehension of danger and acted in his self-defence accordingly.

In Puran Singh and others v State of Punjab (AIR 1975 SC 1674), it is observed that the right
of private defence of property or person, where there is real apprehension that the aggressor might
cause death or grievous hurt to the victim, could extend to the causing of death also and it is not
necessary that death of grievous hurt should actually be caused before the right could be exercised.

A mere- reasonable apprehension is enough to put the right of private defence into operation.

In Munshi Ram and others v Delhi Administration (1967), law does not require, whose property
is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities.
The right of private defence serves a social purpose and that right should be construed. Such a
right not only will be a restraining influence on bad characters but it will encourage the right spirit
in a free citizen.

In Amjad Khan v The State (1952 SCR,567), on the fact and circumstances of the case it was
hold that the accused was entitled to a right of private defence of the body even to the extent of
causing death as there was no time to have recourse to the authorities and had reasonable ground
for apprehending that either death or grievous hurt would be caused either to himself or to the
family members.

These things could not be weighed in too fine a set of scales or “in golden scale”.
ISSUE NO. 2: Whether the accused falls under Criminal Test enunciated by
the Hon’ble Supreme Court?

Your honour recently hon’ble supreme court of India retreated in State of Madhya Pradesh v.
Udham singh [(2019) SCC 4251] and others parameters for the conviction in criminal matters.

Sentencing for crimes has to be analysed on the touch stone of three tests viz., crime test,
criminal test and comparative proportionality test. Crime test involves factors like extent of plan,
choice of weapon, modus of crime, disposal modus (if any),role of accused, antisocial or
abhorrent character of the crime, state of victim.

Criminal test involves assessment of factors such as age of the criminal, gender of the
criminal, economic conditions or social background of the criminal, motivation
for crime, availability of defence, state of mind, instigation by the deceased or any one from
the deceased group, adequately represented in the trial, disagreement by a judge in the appeal
process, repentance, possibility of reformation, prior criminal record (not to take pending
cases) and any other relevant factor (not an exhaustive list).

Additionally, we may note that under the crime test, seriousness needs to be
ascertained. The seriousness of the crime additionally, we may note that under the crime test,
seriousness needs to be ascertained. The seriousness of the crime 6 may be ascertained by
(i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent
of humiliation; and (iv) privacy breach.
By apply all these principal my ladyship accused had no planning in this case, he was in state of
fear , background of accused have no criminal record in past .Thus by following observations
made in these judgments we can say that in the heat of circumstances when deceased person
assaulted and threaten his life by brandishing his pistol, agitated the appellant in that situation to
fire four shots towards the deceased occurred so quickly that appellant did not get time to
consider the possible harm which was necessary in right in right of private defense. Thus the
appellant did not exceed his private defense.

He took this step as a preventive measure and not punitive one in given facts and circumstances
of the case. So plea private defense of body can be legitimately raised in the presence case
should be consider by the appellate court in present matter.
 PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities sited and argument advanced,
it is most humbly prayed and implored before the Hon’ble Court that it may be graciously
pleased to adjudge and declare that:

1) Acquit Mr. Jerome(accused) under Sec- 79 of IPC.

2) Acquit Mr. Jerome (accused) under Sec- 100 & Sec- 103 of IPC.

3) As the Hon’ble may pleased to pass any other order as it may deem fit in the interest of
justice, equality and good conscience.