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MOOT COURT EXERCISE

CAMPUS LAW CENTRE

IN THE HON’BLE HIGH COURT OF BOMBAY

Cr. APPEAL NO._____ of 2024

IN THE MATTER OF:

STATE OF MAHARASHTRA
…..APPELLANT

VERSUS

JEROME …..RESPONDENT

[UNDER SECTION 377(1)(B) OF CRIMINAL PROCEDURE CODE,1973]

MEMORIAL OF BEHALF OF RESPONDENT

SUBMITTED BY- DILAWAR SINGH SANDHU

EXAM ROLL NO. 22309806255
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TABLE OF CONTENTS

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

LIST OF ABBREVIATIONS…………………………………………………………4

STATEMENT OF JURISDICTION………………………………………………….5

STATEMENT OF FACTS……………………………………………………………6

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

SUMMARY OF ARGUMENTS…………………………………………………….8-
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ARGUMENTS ADVANCED
1. Whether Respondent is guilty of offence under section 302 IPC?..................10
● Whether there was an intention to kill present in the accused?............11
2. Whether the respondent acted under Mistake of Facts?..............................12-14
3. Whether the right to defence has been legitimately exercised?...................14-17

PRAYER…………………………………………………………………………….18
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INDEX OF AUTHORITIES

STATUTES:

● INDIAN PENAL CODE, 1860

● BHARATIYA NYAYA SANHITA, 2024

● THE CODE OF CRIMINAL PROCEDURE, 1973

● BHARATIYA NAGRIK SURAKSHA SANHITA

● INDIAN EVIDENCE ACT, 1872

LIST OF CASES:

S.No. CASE NAME

1 Dataram Singh v. State of UP & Anr (2018) SC 90

2 DPP v. DOT (2003)

3 In Re: Kuttayan AIR 1960 MAD 9

4 State of Rajasthan v. Dhool Singh

5 Jaswantrai mankilal Akhaney v. State of Bombay (AIR 1956 SC 575)

6 State of Maharashtra v. M.H. George (1965) AIR 722

7 R v. Lewett (1839) CRO CAR 538

8 Waryam Singh v. Emperor (AIR 1926 Lahore Page No. 504)

9 Suresh Singhal v. State (Delhi Administration) MANU/SC/0110/2017

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10 Wassan Singh v. State of Punjab [1996 Cr L J 878 (SC 1996) 1 SCC 458]

11 Butta Singh v State of Punjab AIR 1991 SC 1316

12 Amjad Khan v The State (1952 SCR 567)

Websites Referred :
1. www.indiankanoon.org
2. www.lexisnexis.co.in
3. www.scconline.com

ABBREVIATIONS

Honourable Hon’ble
Section Sec.

Indian penal Code IPC

Supreme Court SC

Bharatiya Nyaya Sanhita BNS

High Court HC

Investigating officer IO

All India Record AIR

Supreme Court Cases SCC

Criminal Cr

Versus v.

Indian Evidence Act IEA

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STATEMENT OF JURISDICTION

The present appeal is being filed by the Appellant under section 377(1)(b) of the Criminal
Procedure Code,1973. The respondent respectfully submits to the jurisdiction of this Hon’ble
Court.

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.
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STATEMENT OF FACTS

1. This case involves a human tragedy of Shakespearean proportions: a young man

overcomes huge physical disabilities to reach Olympian heights as an athlete.
2. Mr Jerome 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.
3. Despite such a severe physical handicap, he made his way bravely into the world and had a
spectacular athletic career. He competed by using prosthetic legs at the international level in
both disabled and able-bodied athletic events. He won numerous international medals,
including gold medals at the Paralympics.
4. His athletic achievements not only brought him international fame but also into contact
with charities, and he was awarded an honorary doctorate for his humanitarian work in the
world of prosthetics.
5. He met Maria (deceased), who was a successful model on 4th November, 2012. Romance
quickly blossomed and they became intimate.
6. On the night of 13 February 2013, the deceased slept over at the accused's home.
7. In the early hours of the following morning, screams, gunshots, loud noises and cries for
help were heard, emanating from the accused's house. Jerome killed Marla in mistake of
Intruder.
8. Within minutes, a Mr. Raj and a Dr. Dilip, the latter a medical practitioner, arrived at the
accused's home. There they found the accused in a highly emotional state, kneeling alongside
the deceased.
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.
10. He had 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

● WHETHER RESPONDENT IS GUILTY OF OFFENCE UNDER SECTION 302 OF

IPC OR SECTION 103 OF BHARATIYA NYAYA SANHITA, 2024
● WHETHER THERE WAS AN INTENTION TO KILL PRESENT IN
THE ACCUSED/RESPONDENT.

● WHETHER THE RESPONDENT ACTED UNDER MISTAKE OF FACTS.

● WHETHER THE RIGHT TO DEFENCE HAS BEEN LEGITIMATELY

EXERCISED.
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SUMMARY OF ARGUMENTS

● ISSUE 1: WHETHER THE RESPONDENT IS GUILTY OF OFFENCE

COMMITTED U/S 302 OF IPC / 102 OF BHARATIYA NYAYA SANHITA.

● In the instant case of death of the deceased, the prosecution had failed to
produce any material evidence. Lack of proof and mere strong suspicion
cannot be used as a substitute to prove the guilt of the accused in a case largely
dependent upon circumstantial evidence, there is always the danger that
conjecture or suspicion may take place of legal proof. In criminal cases the
burden of proof lies on the prosecution to prove the guilt of the accused
beyond reasonable doubt.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 1: WHETHER THERE WAS AN INTENTION TO KILL
PRESENT IN THE ACCUSED/RESPONDENT.
Accused does not have any intention to kill the deceased and it can be
ruled out from the circumstantial and material evidence on the record that the
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.

● WHETHER THE RESPONDENT ACTED UNDER MISTAKE OF FACTS.

Section 79 makes an offence a non-offence. If the act were done by one who by
reason of a mistake of fact in good faith believes himself to be justified by law in
doing it then, the exception operates and the bona fide belief, although mistaken,
eliminates the culpability.. None of these purposes are achieved if punished for the
mistake of fact. The question of good faith must be considered with reference to the
position of the accused and the circumstances under which he acts. In the present
case, Respondent shot and killed Maria(deceased) under a mistaken belief, in good
faith, that such a person had intruded his house and that he had a reasonable belief
that he was entitled to open fire in exercise of his supposed right of private defence.
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● WHETHER THE RIGHT TO DEFENCE HAS BEEN LEGITIMATELY

EXERCISED.

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 the
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.There was reasonable. apprehension of imminent danger both on life as
well as property of Jerome, not only that there was danger of sexual
misconduct on his girlfriend as well. He shot and killed Maria(deceased) under
a mistaken belief, in good faith, that such person had intruded his house and
that he had a reasonable belief that he was entitled to open fire in exercise of
his supposed right of private defence.
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ARGUMENTS ADVANCED

● WHETHER RESPONDENT IS GUILTY OF OFFENCE U/S 302 OF IPC OR

U/S 103 OF BNS.
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 .Our laws are based on Common law and equality of
law. One of the important and well-known principles is that a person is believed to be
innocent till the guilt is proved against him. This principle is called Presumption of
innocence. Accused is entitled to take advantage of reasonable doubt in respect of his
crime. In our country it is a well-known slogan that even ninety-nine guilty may get
away but one innocent person should not be punished.
Presumption of innocence is restatement of the rule that in criminal matters the public
prosecutor has the burden of proving guilt of the accused in order to convicted him of
the crime of which he is charged and so in our case burden rest upon my opposing
counsel to prove the guilt of respondent beyond reasonable doubt and as we saw he
failed to do so.
It has been evidently provided for Section 105 of the IEA, 1872 that it is for the
prosecution to establish beyond reasonable doubt all essential ingredients of the crime
especially mens rea to prove the guilt of the accused.
In Dataram Singh v State of UP and anr1 The SC held that freedom of an individual
cannot be curtailed for an infinite period, especially when his/her guilt is yet to be
proved and must be considered innocent till found guilty.
In DPP v DOT2, Hardiman J. stated that "The presumption of innocence is a vital,
constitutionally guaranteed, right of person accused in a criminal trial and that the
right has been expressly recognised in all of the major international human rights
instruments currently in force". In fact Article 6(2) of the European Convention on
Human Rights states that "everyone charged with a criminal offence shall be
presumed innocent until proven guilty according to law"

● SUB ISSUE 1: Whether there was an “intention to kill” present in the accused?

1 2018 SC(90)
2 2003
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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 actus 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 a crime unless it is done with a guilty
mind. In the present case, Respondent intention is clear as it is established from facts and
circumstances of the case, If he had any ill-will, he would have never telephoned the other
two residents of the estate, Mr Raj and Dr Dilip, followed by the calls made to the paramedic
organisation for ambulance and the estate's security for his help. This act speaks for itself and
so does my client. In a state of emotionál breakdown he narrated this misfortune incident in
which he believed an intruder to be inside his house and in fear of death and nervousness he
fired four shots upon the door in order to protect his and deceased life.
It clearly shows that the respondent never intended to kill the person behind the door.
In Re: Kuttayan3, the Supreme Court iterated-
“Intention connotes a conscious state in which mental faculties are roused into activity
and summoned into action for the deliberate purpose of being directed towards a particular
and specified act and which the human mind conceives and perceives before itself.”
In State of Rajasthan v Dhool Singh4 ,SC held that the number of injuries is irrelevant. It Is
not always the determining factor in ascertaining the intention. It is the nature of injury, the
part of the body where it is caused.
Mr. Jerome was not any professional shooter who can shoot any person with aimed target and
that too when the said person is behind the door. He fired shots unseemingly out of fear of
any attack on him and his girlfriend. Maria who was residing on his place of home on that
gloomy midnight. The intention of the respondent was only the safety of him and is girlfriend
who he loved the most.

3 AIR 1960 MAD 9

4 (2004) AIR SC 1264

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● ISSUE NO. 2- WHETHER THE RESPONDENT ACTED UNDER MISTAKE

OF FACTS.

The chapter on General Exceptions of IPC operates in this province. Section 79 makes an
offence a non-offence. Only when the act were done by one who by reason of a mistake of
fact in good faith believes himself to be justified by law in doing it then, the exception
operates and the bona fide belief, although mistaken, eliminates the culpability. If the
offender can irrefutably establish that he is actually justified by law in doing the act or,
alternatively, that he entertained a mistake of fact and in good faith believed that he was
justified by law in committing the act, then, the weapon of section 79 demolishes the
prosecution.

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 reason of a mistake of law in good
faith, believes himself to be justified by law, in doing it.

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 the mind's operation of the wrongdoer.5 The ignorance of fact is an excuse as it
precludes the accused from the forming of mens rea. It negates the existence of mens rea. 6

In R v. Lewett7, Where a man made a thrust with a sword at a place where, upon reasonable
grounds, he supposed a burglar to be, and killed a person who was not a burglar, it was held
that he had committed no offence. In other words, he was in the same situation as far as the
homicide as if he had killed a burglar.
In the present case, both legs of the respondent were surgically amputated below the knee
and, since then, he had to rely on prostheticsHe was under the belief that the intruder had
entered the house. The Respondent has no knowledge of Marla (deceased) presence in the
toilet. Although this act may not be justified by law, yet if it is done under a mistake of fact,
in the belief in good faith that it is justified by law it will not be an offence.

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

6 State of Maharashtra v. M.H.George
7 (1839) CRO CAR 538
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● THE MISTAKE MUST RELATE TO FACT AND NOT TO LAW AND IT MUST
BE ESTABLISHED THAT THE ACT WAS DONE UNDER A BONAFIDE
BELIEF THAT IT WAS NECESSITATED OR JUSTIFIED BY LAW

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.

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 Case8 , 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 Waryam Singh v Emperor9 , 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.
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 woken 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 was an intruder in his house and immediately proceeded towards the bathroom without
putting on 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

8 (1 Hale PC 42)
9 (AIR 1926 Lahore Page No. 504)
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girlfriend and therefore, he asked her to get down and call the police.
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.

ISSUE 3-WHETHER THE RIGHT TO DEFEND HAS BEEN LEGITIMATELY

EXERCISED.

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 –

Firstly – 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,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
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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 Suresh Singhal vs. State (Delhi Administration)10The Supreme Court observed as

follows:“A mere reasonable apprehension is enough to put the right of self-defence into
operation and it is not necessary that there should be an actual commission of the offence in
order to give rise to the right of private defence. It is enough if the Appellant apprehended

10 MANU/SC/0110/2017
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that such an offence is contemplated and is likely to be committed if the right of private
defence is not exercised.”

In Wassan Singh v State of Punjab11 , 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.

A. Whether the Respondent exceeded the Right to Private Defence.

Right of private defence is available only to one who is suddenly confronted with the
necessity of averting an impending danger. That being so, the necessary corollary is that the
violence which the citizen defending himself or his property is entitled to use must not be
unduly disproportionate to the injury which is sought to be averted or which is reasonably
apprehended and should not exceed its legitimate purpose.

Honourable Supreme Court In Butta Singh v. The State of Punjab12 noted that a person
who is apprehending death or bodily injury cannot weigh in golden scales in the spur of
movement and in heat of circumstances, the number of injuries required to disarm the
assailants who were armed with weapons.

In Amjad Khan v The State13 , 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”.

11 [1996 Cr L J 878 (SC, 1996) 1 SSC 458]

12 AIR 1991 SC 1316
13 (1952 SCR,567)
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Thus by following observations made in above mentioned judgments we can say that in the
heat of circumstances shot and killed Maria (deceased) under a mistaken belief, that such
person had intruded his house and that he had a reasonable belief that he was entitled to open
fire in exercise of his supposed right of private defence.

In the present case, Respondent was 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.

Thus the respondent did not exceed his right of private defence in such imminent grave
circumstances. He took this step as a preventive measure and not punitive one as he fired
shots on the door and not the deceased directly. The respondent was facing a reasonable
apprehension of threat on himself, her girlfriend and his property, he cannot be expected to
modulate his defence step-by-step with any arithmetical exactitude of only that much which
is required in the thinking of a man in ordinary times or under normal circumstances. So the
plea of private defence of body may be legitimately raised in the present case and should be
consider by the appellate court in present matter.
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PRAYER

In the light of the facts stated, issues raised, authorities cited and pleadings advanced, it is
most humbly prayed before this Hon’ble Court that it may be graciously pleased to declare
that:

1. Reject the appellant's plea for culpable homicide amounting to murder and acquit the
respondent on the basis of mistake of facts and Private defence

If not , then:

2. Reject the appellant's prayer for establishing culpable homicide amounting to murder
and uphold the judgement passed by the Session Court, or

Pass any other order that it may deem fit in the interest of justice, equity, and good
conscience
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