BEFORE

THE HIGH COURT OF MUMBAI

IN THE MATTER OF

PLAINTIFF V. DEFENDANT

STATE MR. JEROME

MEMORIAL SUBMISSION ON BEHALF OF DEFENDANT

Counsel appearing on behalf of Mr. Jerome (defendant)

 TABLE OF CONTENTS

SR. NO. PARTICULARS PAGE NO.

1. TABLE OF CONTENTS 2

2. INDEX OF AUTHORITIES 3

3. TABLE OF CASES 3

4. STATEMENT OF JURISDICTION 4

5. STATEMENT OF FACTS 5-6

6. STATEMENT OF ISSUES 7

7. SUMMARY OF ARGUEMENTS 8-9

8. ARGUMENTS ADVANCED 10-15

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9. PRAYER

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 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

VERMA`S SUPREME COURT ,CRIMINAL DIGEST (2008 TO 2013)

TABLE OF CASES:

HARROW LONDON BC V/S SHAH (2000)

STATE OF MAHARASTRA V/S M.H. GEORGE
AMAR SINGH V/S STATE
CHAKRU SATTIAH V/S STATE
REG. V/S GOVINDA (1877)
RAJBIR SINGH V/S STATE OF U.P
MOHD. RAFIQ V/S STATE OF MADHYA PRADESH
PULICHERLA NAGARAJA @ NAGARAJU REDDY V/S STATE
OF ANDHRA PRADESH
MANJU V/S STATE
BAKSHISH SINGH V/S STATE OF PUNJAB
UMED BHAI JDAV V/S STATE OF GUJARAT
KALI RAM V/S STATE OF H.P
ANDHRA PRADESH V RAYAVARAPU PUNNAYYA & ANR

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 STATEMENT OF JURISDICTION

Your honor, counsel has approached this court under Section 377 in Code Of Criminal
Procedure, 1973. If the court thinks it appropriate to proceed in this manner, I humbly
submit this jurisdiction

Section 377 of the Code of Criminal Procedure, 1973 read as follows:

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 by any Court other than a High Court, direct the Public Prosecutor to present an appeal to
the High Court against the sentence on the ground of its inadequacy.
(2) if such conviction is in a case in which the offence has been investigated by the Delhi Special Police
Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ) or by
any other agency empowered to make investigation into an offence under any Central Act.
other than this Code, the Central Government may also direct] the Public Prosecutor to present an
appeal to the High Court against the sentence on the ground of its inadequacy.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, 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.

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 STATEMENT OF FACTS

1. The accused was born with deformed legs, consequently before his first birthday, both of his
legs were surgically amputated below the knee and, since then, he has had to rely on prosthetics.
Despite such a severe physical handicap, he made his way bravely into the world of athletics.

2. He won numerous international medals, including gold medals at the paralympics. The accused
represented India in both the Olympics and paralympic games of 2012 & he was awarded an
honorary doctorate for his humanitarian in the world of prosthetics.

3. The accused met the deceased, who was a successful model on 4 th November 2012. Romance
quickly blossomed & they became intimate. As so often happens with romantic relationships,
they had petty conflict & tensions but despite these hiccups they stayed together.

4. The deceased sl th
February. In the early hours of 14th
February Screams, gunshots, loud noises and cries for help were heard, emanating from the
&
Mr. Dilip.

5. The accused heard the sound of a window opening in the bathroom. The accused thought there
was an intruder entered into his house through the bathroom window possibly by climbing up a
ladder. He starting screaming & shouting for the intruder to get out of his house and he grabbed
his 9mm pistol & whispered to Maria (deceased) who he presumed was in the bedroom to get
down & call the police.

6. The accused heard a noise coming from inside the toilet & promptly fired four shots on the door.
After that he went back to the bedroom where he found Maria was not there. He then went back
to the bathroom & found Maria there but she was not breathing.

7. The accused pleaded in the trial court that he cannot be held guilty of murdering Maria because
he had no subjective intention to cause her death as he had not known Maria was in the toilet.
The accused believed that deceased was in the bedroom when he was firing shots at the door
believing the intruders were in the toilet. This belief was told to many people shortly after the
incident.

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8. Counsel for accused stated that he had not been wearing his prosthesis at that time and that he
had thus been particularly vulnerable to any aggression directed at him by an intruder. He must
have viewed whoever was in the toilet as a danger. Hence there was a genuine belief of an
imminent attack upon him.

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

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 STATEMENT OF ISSUES.

discussion and adjudication are as follows.

1. Whether mens rea is present or not in the present suit?

2. Whether the act of the accused falls within the ambit of Sec.300 of IPC?

3. Whether the circumstantial evidence are enough to prove the guilt of accused?

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 SUMMARY OF ARGUMENTS

1. Whether Mens rea is present or not in the present suit?

The counsel for defence humbly submits that the Mens rea is not present in the present case-

Mens rea is an essential part of deciding whether an act is culpable or not. Mens rea displays
specific intent by the accused for the commission of the crime for which he is charged. The
accused must be proven to have knowingly committed the crime, and had full knowledge of
their actions and must have malafide intent towards the victim.

Further, an Act may be voluntary or involuntary, and the guilt is determined by the facts of the

as it was a voluntary choice on his part to consume alcohol before driving, even though the
crime itself was unintentional. However, if an otherwise healthy person suffers a heart attack
while driving and involuntarily causes harm to others, he are not liable and is not guilty of the
crime.

Actus reus

ises the
physical components of a crime that must be coupled with mens rea for one to be held criminally
liable.

2. Whether the act of the accused falls within the ambit of Sec.300 of IPC?

alleged crime which he had committed was done in reflexive response he lacks the requisite
or not he had committed
the actus Reus must be put into question as the direct evidence has several inconsistencies.
Hence, the crime of murder cannot stand against the accused.

guilty mind. The

established principles of penal laws of land a person cannot be held liable for his act unless the

not guilty until and unless guilty mind is proven by the prosecution as the finding of facts should
be done exclusively at the level of trial and trial court upheld the view in its judgment that there
is absence of intention so the accused cannot be charged with section300.

3. Whether the circumstantial evidence are enough to prove the guilt of the accused?

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It is humbly submitted before this
court is entirely built on circumstantial evidence various circumstances in chain of evidence
is not established clearly there is reasonable doubt on guilt of accused burden of proof lies on
the Prosecution , there are no material proposition implicating the accused, neither any
witness were present elements of crime are absent in the Present case.
It is well settled that there were the case is mainly based on circumstantial evidence, the
court must satisfy itself that various circumstances in chain of evidence should be
established clearly and that completed chain must be such as to rule out a reasonable
likelihood of the accused.
The accused would be entitled to an acquittal because the prosecution has failed to discharge
its special burden of eliminating doubts.

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 ARGUMENTS ADVANCED

1. Whether Mens rea is present or not in the present suit?

An Act Committed Without Mens Rea Cannot Properly Be Called A Crime.

Mens rea, a guilty mind or intent; usually one of the essentials of a crime. Mens rea is only one of two
components of a crime, the other being the actus reus. The actus reus looks at the physical component of
a crime, whereas the mens rea looks at the mental element of a crime. Both components are required for

we now know it as the legal term used today to describe the defendants mental state. Strict liability
offences are the only offences that do not need to have a mens rea to be proven.

A strict liability offence is where a defendant has committed a crime but is not blameworthy, an easy
example of this is if a shop assist serves a person for alcohol which are under age. A case we can look at
is Harrow London BC v Shah [2000]. In the case the defendant served a a lottery ticket to a person
that was under age. Although the defendant did think that the purchaser was over the age of 16 as he
appeared to look over this age. Just under 50 percent of cases are to do with strict liability and are
normally minor cases.

As the accused did not have any intention to kill the deceased and the act of the accused is justified
under Section 81. the maxim actum non facit reum nisi mens sit rea. it means an act done by a person
will not be considered as crime unless it is done with a guilty mind.

It is a fundamental Principle of criminal law that a person may not be convicted of a crime unless the
prosecution has proved beyond reasonable doubt both.

y mind. The
established principles of penal laws of land a person cannot be held liable for his act unless the two

until and unless guilty mind is proven by the prosecution

caused the injury the accused must be acquitted. In the present case there is no coincidence between the
two and hence no crime has been committed.

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 is
specially ruled out or ruled out by necessary implication.

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In Amar Singh v. State
be judged by taking into consideration all the circumstances of the case. Simply because a gun is fired,
it is not necessary to infer that it was done with no other intention except that of comitting murder.

It is very pertinent from the present case that the accused did not have any criminal intention or motive
to kill the deceased. The accused called his neighbours for help and Mr. Raj and Dr. Dilip when arrived

who was lying on the floor at the foot of the stairs.

The trial court itself admitted that the accused did not have intention to kill the deceased.Therefore, it is

2. Whether the act of the accused falls within the sec.300 of IPC?

commit such a crime furthermore the issue as to whether or not he had committed the actus Reus must
be put into question as the direct evidence has several inconsistencies. Hence, the crime of murder
cannot stand against the accused.

ne without criminal intent The amount of caution that

is to be followed under this section is not that which is of highest order but that which is reasonable
precaution when seeing the facts of each case. While exercising his private defense it can be argued that
accused had accidentally ended Miss Maria life

The onus of proof in a criminal case is discharged by the State if evidence establishes the guilt of the
accused beyond Reasonable doubt.In the present case State is unable to discharge or establish the guilt
of accused beyond reasonable doubt.

Chakru Sattiah v. State an act is

not punishable as it is excuses the accused from punishment due to a lack of mens rea, and it for the
prosecution to prove requisite intention or knowledge in cases of murder6 and same is been observed.

In the case of Reg. v. Govinda ( 1877) ILR the accused had knocked down his wife, kept a knee on her
chest and gave two to three violent blows with the closed fist on her face. This act produced
extraversion of blood on her brain and afterwards, the wife died due to this. The act was not committed
with the intention of causing death and the bodily injury was not sufficient to cause death in the
ordinary course of nature. The accused was liable to culpable homicide not amounting to murder.

In Rajbir Singh v. State of U.P. In this case, a girl died of a bullet which was fired on another person
Session judge found the accused guilty under sec.302. After aggrieved by the decision of Session judge
and High court the accused filed appeal in the Supreme court by special leave. Supreme court
obsereved- Culpable homicide by causing death of person other than person whose death was intended.-
-If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable

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homicide by causing the death of any person, whose death he neither intends nor knows himself to be
likely to cause, the culpable homicide committed by the offender is of the description of which it would
have been if he had caused the death of the person whose death he intended or knew himself to be likely
to cause. the appeal is allowed and the impugned order dated 9.7.2004 of the High Court is set aside.

In Mohd. Rafiq vs State of Madhya Pradesh . SI Tiwari motioned the truck to stop; it was driven by
the appellant. Instead of applying brakes, the accused tried to speed away, upon which SI Tiwari
boarded the truck from its left side. At that stage, it is alleged that the accused/appellant warned SI
Tiwari not to do so and that he would get killed. Nevertheless, SI Tiwari boarded the truck.
Immediately, the appellant pushed him, as a result of which SI Tiwari fell off the truck and he was run
over by the rear wheels of the truck. SI Tiwari died. It is further alleged that the appellant fled with the
truck. He was later caught, arrested and charged with committing murder of SI Tiwari. the Madhya
Pradesh High Court1 which confirmed his conviction for the offence punishable under Section 302 of

The accused appeals in the Supreme court.

The apex court reffered various cases and allows the appeal of the accused
The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr notes the important
distinction between the two provisions, and their differing, but subtle distinction. The court pertinently
pointed out that:
In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is
"culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special
characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing
punishment, proportionate to the gravity of this generic offence, the Code practically recognises three
degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree".
This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The
second may be termed as "culpable homicide of the second degree". This is punishable under the first
part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of
culpable homicide and the punishment provided for it is, also, the lowest among the punishments
provided for the three grades. Culpable homicide of this degree is punishable under the second part of
Section 304.
The academic distinction between "murder" and "culpable homicide not amounting to murder" has
vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true
scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn
into minute abstractions. The safest way of approach to the interpretation and application of these
provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and
300."

In Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh The court observed that:
The Court should proceed to decide the pivotal question of intention, with care and caution, as that will
decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant
matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an
objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives
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like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no
intention. There may be no premeditation. In fact, there may not even be criminality. At the other end
of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for
murder by attempting to put forth a case that there was no intention to cause death. It is for the courts
to ensure that the cases of murder punishable under Section 302, are not converted into offences
punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are
treated as murder punishable under Section 302. The intention to cause death can be gathered generally
from a combination of a few or several of the following, among other, circumstances; (i) nature of the
weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the body;(iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was
any prior enmity or whether the deceased was a stranger;(viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x)
whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances
is, of course, not exhaustive and there may be several other special circumstances with reference to

In the present case all the essential elements show that the appellant did not have any previous quarrel
-
meditated. Though it cannot be said that there was a quarrel, caused by sudden provocation, if one
considers that the deceased tried to board the truck, and was perhaps in plain clothes, the instinctive
reaction of the appellant was to resist; he disproportionately reacted, which resulted in the deceased
being thrown off the vehicle. Such act of throwing off the deceased and driving on without pausing,
appears to have been in the heat ofpassion, or conviction
under Section 302 IPC was not appropriate.
In the facts of the present case, this court is of the opinion that the appellants should be convicted for
the offence punishable under the first part of Section 304 IPC, as he had the intention of causing such
bodily harm, to the deceased, as was likely to result in his death, as it did. Having regard to these
circumstances, the conviction recorded by the courts below, is altered to one under Section 304 Part I,
IPC.
Further Sec.100 of the IPC says-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 apprehen-sion 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;
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(Fifthly) An assault with the intention of kidnapping or abduct-ing;
(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.
So in the present case all the above factors were present as the accused is an disable person who has no
legs & his wife was also present in the room it was a dark night suddenly he heard some noises in the
bathroom
and also suggests what can happen. So in the present case the same happened with the accused he
thought the intruders may kill him or his wife or they can commit rape. Hence he was in complete fear
for himself and for his wife so in order to protect himself and his wife he shot at the door believing
intruders were there in the bathroom.
The Court of sessions also held that the accused shot at the door believing that there was an intruder.

the murder.

and circumstances involved leading to a inference which point out towards the innocence of the
accused and in the absence of eye witness, weak evidentiary value of circumstantial evidences and
element of doubt, this case clearly attracts the evolved provision of benefit of doubt and in the light of
contention proposed by the respondent entitles the benefit of it.

3. Whether the circumstantial evidence are enough to prove the guilt of accused?

circumstantial evidence various circumstances in chain of evidence is not established clearly there is
reasonable doubt on guilt of accused burden of proof lies on the Prosecution , there are no material
proposition implicating the accused, neither any witness were present elements of crime are absent
in the Present case.
It is well settled that there were the case is mainly based on circumstantial evidence, the court must
satisfy itself that various circumstances in chain of evidence should be established clearly and that
completed chain must be such as to rule out a reasonable likelihood of the accused.
The accused would be entitled to an acquittal because the prosecution has failed to discharge its
special burden of eliminating doubts.

In the case of Manju Vs. State, held that as the evidence on record is not sufficient to prove the
accused guilty, the benefit of doubt should be given to the appellant.Thereby the Supreme Court
acquitted the appellant and quashed the judgements of the Trial court and the High Court of Delhi.
It is submitted none of the existing circumstances are concrete enough to prove the factum
probandum. As observed by Supreme Court in Bakshish Singh vs. State of Punjab in a case resting
on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those
circumstances should be consistent only with the hypothesis of the guilt of the accused again those
circumstances should be of conclusive nature and tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved.

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Furthermore, It is submitted that as per law of India burden of proof lies on Prosecution to establish
the guilt of accused beyond reasonable doubt

beyond reasonable doubt which allows a presumption of innocence in favour of the respondent as In
Umed bhai Jadav bhai v/s State of Gujarat1,the court held that it is well established that in a case
resting on circumstantial evidence all the circumstances brought out by the prosecution, must
inevitably and exclusively point to the guilt of the accused and there should be no circumstance which
may reasonably be considered consistent with the innocence of theaccused.
Furthermore, In Kali Ram Vs. State of H.P2.court entertain reasonable doubt regarding the guilt of
the accused, the accused must have the benefit of the doubt of course, the doubt regarding the
guilt of the accused must have benefit of that doubt.

Respondent humbly submitted before this Court that with the analysis of the facts of this case
and circumstances involved leading to a inference which point out towards the innocence of the
accused and in the absence of eye witness 3, weak evidentiary value of circumstantial evidences and
element of doubt, this case clearly attracts the evolved provision of benefit of doubt and in the light of
contention proposed by the respondent entitles the benefit of it.

1
1978 AIR 424, 1978 SCR (2) 471
1
1973 AIR 2773, 1974 SCR (1) 722

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 PRAYER

1) Appeal should be dismissed.

2) Set aside the conviction by Trial Court and acquit the respondent of all charges.

AND/OR

Pass any other order that it may deem fit in the interest of Justice, Equity and Good Conscience

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