LL.B.

VTH TERM: LB-501

MOOT COURT, MOCK TRIAL & INTERNSHIP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, MUMBAI

Cr. Ap. No. _____/2022

In the matter of:

State of Maharashtra

…....…. Appellant
Versus

Mr. Jerome
……. Respondent

MEMORANDUM ON BEHALF OF THE RESPONDENT

[COUNSEL APPEARING ON BEHALF OF RESPONDENT]

Submitted By: GAURAV MAAN

Enrollment No.: 17KIMCBGPS000136

Examination Roll No.: 2131806288

IIIrd Year LL.B. Student,

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TABLE OF CONTENTS

List of Abbreviations & Authorities ........................................................................................... 3

A. Table of Abbreviations .................................................................................................3

B. Legislations .................................................................................................................. 3

C. Books .................................................................................................................................. 3

D. Rulings ............................................................................................................................... 4

Statement of Jurisdiction ............................................................................................................ 5

Statement of Facts ...................................................................................................................... 6

Issues Raised (Substantial Question of Law) .............................................................................. 7

Summary of Arguments ............................................................................................................ 8

Arguments Advanced ............................................................................................................... 9

A. Whether the present appeal by the state is liable to be dismissed? ..................................... 9

B. Whether the Ld. Trial court had correctly appreciated the evidence laid before it?............. 11

Prayer ...................................................................................................................................... 14

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LIST OF ABBREVIATIONS & AUTHORITIES

A. TABLE OF ABBREVIATIONS

Abbreviations Full Forms

& And
AIR All India Reporter
Cr.P.C. Criminal Procedure Code
IPC Indian Penal Code
Hon’ble Honorable
Ors. Others
§ Section
s. Section
SCC Supreme Court Cases
u/s Under Section
v. Versus

B. LEGISLATIONS

Sr. No. Legislations Year of Enactment

1. The Code of Criminal Procedure, 1973 Act No. 2 of 1973

2. The Indian Penal Code, 1860 Act No. 45 of 1860

C. BOOKS

Sr. No. Book Title Year of Publication

1. Criminal Procedure Code by Ratan Lal and 19th Enlarged Edition; Reprint
Dhiraj Lal; Foreword by Justice M N June 2014
Ventkatachaliah; General Editor V R Manohar
2. The Indian Penal Code by Ratan Lal and 35th Edition; 2017
Dhiraj Lal; Justice KT Thomas & M A Rashid

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D. RULINGS

Sr. No. Case Title Citation

1. Eknath Shankarrao Mukkawar v. State of (1977) 3 SCC 25
Maharashtra
2. Lingala Vijay Kumar v. Public Prosecutor (1978) 4 SCC 196
3. Arun Balkrishna Nirmal & Ors. v. State of (2006) 6 SCC 429
Maharashtra

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STATEMENT OF JURISDICTION Commented [ua1]: May it please the Honourable court,

this is counsel appearing on behalf of respondent. The
counsel seeks permission to state the jurisdiction.

The present Appellant, State has challenged the judgment rendered by the Ld. Sessions
Court Navi Mumbai, Mumbai under Section 377 of the Criminal Procedure Code, 1973
(hereinafter, Cr.PC.) in which the Ld. Trial Court had convicted the Respondent herein,
for “Culpable homicide not amounting to murder” holding that there was no intention to
kill the deceased. The Hon’ble High Court has been called upon to invoke their
jurisdiction under Section 377 of Cr.PC.

The relevant extract of the provision is extracted as below:

********

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 by any Court other than a High Court, direct the Public Prosecutor to present
an appeal 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 Commented [ua2]: If your lordships are satisfied with the
jurisdiction, The counsel seeks permission to proceed with
the case and acquint the bench with the facts of the case.
The Respondent most respectfully submits as follows:

1. That the Respondent was born with deformed legs and both of his legs were
surgically amputated below the knee while he was only one year old. Ever since then
he had to rely on prosthetics to move from one place to other.
2. That despite his physical incapability he won numerous international medals for our
country at both Olympic and Paralympic Games and has represented our country at
many international athletic events.
3. That on the fate morning of February 14th, 2013 an incident took place in which the
Respondent has been convicted for causing culpable homicide not amounting to
murder of his deceased girlfriend, Miss Maria by firing four shots from his 9mm pistol
which is kept by him for is personal protection.
4. That prosecution during trial has placed reliance on a transcript of text messages that
had passed between the accused and Maria, leading to the conclusion that there was
some tension and conflict between both of them.
5. That the neighbors of the Respondent had heard screams, gunshots, loud noises and
cries on the following morning form Respondent’s house. Thereafter, Mr. Raj, Dr Dilip
and later a medical practitioner went to the Respondent’s house.
6. That the accused was found kneeling alongside the deceased who was lying on the
floor at the foot of the upstairs in a very emotional state. It was alleged that the accused
had carried the body of the deceased from the bathroom.
7. That Dr Dilip when tried to diagnose the deceased then, he was unable to find her
pulse and in the due course FIR was registered u/s 302 of the IPC against the
Respondent for killing his girlfriend, the deceased.
8. That the prosecution tried to persuade the Ld. Trial Court that Respondent had
threatened his girlfriend during an argument so, she had locked herself inside the
bathroom and then fired four shots at her through door. But the Ld. Trial Court
convicted the accused for the culpable homicide not amounting to murder.
9. That hence, the present appeal has been filled by the State u/s 377 Cr.PC. for the
enhancement of the punishment imposed on the Respondent/Accused by the Ld.
Sessions Court for the murder of his girlfriend deceased, Miss Maria.

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ISSUES RAISED Commented [ua3]: If your lordships are satisfied with the
facts, the counsel seeks permission to mention the issue raised
before this honourable court.

Your lordship this case involves 3 major issues. I will be

dealing with the first issue and my co counsel would take up
A. WHETHER THE APPEAL BY STATE IS LIABLE TO BE DISMISSED? the remaining issues.

The issue number 1 is “whether this appeal by the state under

section 377 of the crpc is liable to be dismissed or not ?”
B. WHETHER THE LD. SESSIONS COURT HAD CORRECTLY At this very juncture, the counsel seeks permission to proceed
with the first issue .
APPRECIATED THE EVIDENCE LAID BEFORE IT OR NOT?
(after every permission, say- Much obliged your lordship )

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SUMMARY OF ARGUMENTS

Brief summary of arguments advanced on behalf of the Respondent/Accused is as follows:

(i) Dismissal of the Appeal

The Respondent most respectfully submits that this appeal u/s 377 Cr.PC preferred by
the State against the judgment of conviction rendered by the Ld. Sessions Court
convicting the Respondent/Accused herein, for the offence of “Culpable Homicide not
amounting to murder”, for the enhancement of the sentence imposed on the accused is
liable to be dismissed.

(ii) Hearing for Acquittal

Additionally, the respondent herein is entitled to be heard for his acquittal even though
the appeal has been preferred by the State as per the provisions of s. 377 Cr.P.C. The
State in the present appeal can only pray for a punishment for which the accused had been
charged with whereas the State can only appeal for the enhancement of sentence imposed
by the Ld. Sessions Court.

(iii) No Intention to kill the deceased, Miss Maria

As stated by the accused before the Ld. Trial Court below during trial that it was a panic
situation and he didn’t have time to reflect upon the situation as he had apprehension that
there was an intruder in this house who had kept hold of his girlfriend in the bathroom.
When raised hue and cry and screamed to alert his girlfriend about the intruder his
girlfriend gave no response to his voice then, only he fired four shots at the intruder. He
never intended to cause the death of his girlfriend.

(iv) Incorrect Appreciation of Evidences by the Ld. Trial Court

Given the fact that the accused herein, is a physically handicapped person who in unable
to move freely without the use of his prosthetics, the short time to reflect upon the
situation and the vulnerability of the accused, Mr. Jerome to any aggression directed
towards him and the surrounding facts and circumstances, Ld. Trial Court has not
appreciated the evidences led by both the parties before it during trial.

Therefore, this appeal is liable to be dismissed so far as the enhancement of the sentence is
concerned.

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ARGUMENTS ADVANCED Commented [ua4]: Your lordships to begin with, it is most
humbly submitted before this honourable court that the
A. WHETHER THE APPEAL BY STATE IS LIABLE TO BE DISMISSED? judgment of …….(continue reading the points as written)

1. The Accused/Respondent most respectfully showeth – that the judgement of

conviction of the Ld. Sessions Court convicting Mr. Jerome the accused, for the
culpable homicide not amounting to murder for killing his girlfriend Miss. Maria
is liable to be set aside and the Accused/Respondent is to be acquitted of the
charges of which he has been convicted by the Ld. Trial Court below.

A.1 No Intention to Cause Death: Judgment of Conviction to be Set Aside

2. The judgment of conviction of the Ld. Sessions Court is liable to be set aside as
the accused/respondent had no subjective intention to kill his girlfriend, Miss
Maria rather he was under the belief of an erroneous fact that it was an intruder in
the bathroom who has entered his house and had kept hold of his girlfriend and he
is vulnerable to any aggression directed towards him. The accused was aware of
the fact that it was Maria who was inside the bathroom but when he screamed to
alert her and raised hue and cry then, there was no response from her side, despite
the fact that those noises and sounds were heard by neighbors of the accused. In
light of these facts and when no response was received by the accused from his
girlfriend then, he didn’t had time to reflect on the situation and he fired shots
from his 9mm pistol which was kept for his personal protection.

3. The most essential ingredient of intention i.e. Mens rea is missing here. Since
there was no intention of the accused to cause the death of the deceased Maria, he
can’t be said to have caused her death and can’t be held liable for the culpable
homicide not amounting to murder.

A.2 Power of High Court u/s 377 of Cr.PC. Commented [ua5]: Now , your lordship, allow me to take
the bench through the powers of this court under section 377
crpc as has been interpreted in various
4. The present appeal has been preferred by the State against the judgment of judgments…..(continue reading)
conviction of the Ld. Sessions Court against the Respondent u/s 377 of Cr.PC. As
per this provision, the accused is entitled to make a case for his acquittal while the
prosecution can only urge for the enhancement of the sentence imposed on the
accused on the ground of inadequacy on the charge.

5. Moreover, the High Court has to provide for a substantial reasoning while altering
the judgement of conviction of the Ld. Trial Court. It can’t place reliance on vague
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terms and has to give speaking orders. In an appeal against the inadequacy of Commented [ua6]: In the case of Eknath Shankarrao
Mukkawar v. State of Maharashtra, (1977) 2 SCC 25, the
sentence it is not permissible to alter the conviction to an aggravated category of supreme court has observed that ..in an appeal.. continue
reading
offence for which the accused was not convicted. While the accused in such an
appeal under Section 377 Cr.PC. can show that he is innocent of the offence. The
prosecution will only be able to urge that the sentence is inadequate on the charge
as found or even on an altered less grave charge.1

6. Under section 377 Cr.PC. the High Court has the power to supersede the trial Commented [ua7]: In another important case of 1 Lingala
Vijay Kumar v. Public Prosecutor, (1978) 4 SCC 196.. the
Court’s discretion with regard to sentence provided there is error in principle or apex court has observed that ….under.. continue reading

there is perverse exercise or like faux pas is pointed out and the reasons are stated.
The Court can’t refer to the vague term like “ends of justice”. This kind of High
Court’s substantial enhancement of the sentence does not amount to a speaking
order giving reasons.2

A.3 Accused/Respondent is Entitled to be heard for Acquittal

7. The Respondent humbly submits before the Hon’ble High Court that the
accused/respondent herein, is entitled to be heard for his acquittal as well in view
of the sub-section (3) of s. 377 of Cr.PC.

8. Since the present appeal has been filed by the State for enhancement of sentence
imposed by the Ld. Sessions Court on the accused, still it is the right of the
accused to be heard for his acquittal.3 Moreover, he is entitled for this hearing as Commented [ua8]: This has been observed by the supreme
court in the case of Arun Balkrishna Nirmal & Ors. v. State of
the same has been conferred on him by the statute itself. Maharashtra, (2006) 6 SCC 429.

9. Therefore, it is submitted on behalf of the Respondent that he may be given an

opportunity to be heard for his acquittal even if in the present case, the appeal has
been preferred by the State for the enhancement of the sentence imposed on him.

A.4 No Enhancement of the Sentence Imposed by the Ld. Sessions Court

10. In alternative, it is prayed for Respondent that on the basis of the given facts and Commented [ua9]: It is most humbly submitted and
prayed for respondent that…
circumstances of the case, no grounds have been called for in this appeal to
interfere with or to enhance the sentence rendered by the Ld. Sessions Court.
Thereby, even if the Respondent is not able to put forward a case for his acquittal

1
Eknath Shankarrao Mukkawar v. State of Maharashtra, (1977) 3 SCC 25.
2
Lingala Vijay Kumar v. Public Prosecutor, (1978) 4 SCC 196.
3
Arun Balkrishna Nirmal & Ors. v. State of Maharashtra, (2006) 6 SCC 429.
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the judgment of the Ld. Sessions Court should not be interfered by the Hon’ble
High Court. Commented [ua10]: That’s all your lordship, I would now
request my co counsel to take up the next issue.

B. WHETHER THE LD. TRIAL COURT HAD CORRECTLY

APPRECIATED THE EVIDENCE LED BEFORE IT?

11. It is submitted before the Hon’ble High Court that the Ld. Sessions Court had not
correctly appreciated the led before it by the prosecution and the defence.
Therefore, the judgement of conviction of the Ld. Sessions Court is liable to be set
aside and the accused/respondent is to be acquitted of the charges he has been
convicted of.

B.1 Vulnerability of the Accused/Respondent to any Attack Directed towards him

12. As the facts states that the accused/respondent was born with deformed legs and
his legs were amputated right after his birth making him physically handicapped.
Thereafter, ever since then he has been using prosthetics for walking and moving
here and there. Despite such a severe physical disability he competed at
international level in both disabled and able-bodied athletic events.

13. The accused herein, is a person who is physically handicapped and is a physically
disabled person. He is vulnerable to any attack directed towards him by any
person or an intruder trespassing into his house during late night. It was his instant
reaction to the situation when he heard voice in the bathroom. The pistol which
was kept by the accused/respondent with him was a licensed weapon (pistol) kept
for his protection as he was handicapped and physically disabled person and was
not in a position to defend himself in any life- threatening situation.

14. Moreover, there was darkness all around at the time when the alleged incident
took place. The accused was not able to see anything which is why he screamed
so as to alert his girlfriend as there was an intruder in the house. It was in the spur
of the moment that the accused so as to protect himself and his girlfriend fired
four bullets from his 9mm pistol.

B.2 No prior Criminal Record of the Accused

15. As per the facts the accused had represented our country in both Olympic and
Paralympics in 2012. His athletic achievements had not only brought him
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international fame but also into contact with charities. He was also, awarded an
honorary doctorate for his humanitarian work in the world of prosthetic. This
shows that accused had an impeccable character and reputation in the society prior
to being arraigned as an accused in the murder of his girlfriend.

16. The prosecution had not shown any evidence of his involvement or being
indulged in any criminal activity or any criminal record against him. The accused
had no prior criminal record. There is no incident of his pistol being misused or
fired in any public place or against any person by the accused. It amply makes
clear that the accused/respondent is not a habitual offender and the incident which
took place on the early hours of February 14, 2013 was an instant reaction by the
accused while he was in a vulnerable position towards the attack directed against
him but not full-fledged planned murder.

B.3 Ld. Sessions Court has not Appreciated the Evidence led Before It Correctly

17. The Ld. Sessions Court has not correctly appreciated the evidence before it on the
following grounds:
(i) The Accused/Respondent had no intention to kill the deceased Maria, as he
was under the impression that she was in bathroom and the intruder had kept
hold of her and in order to protect his girlfriend he fired those bullet shots at
the intruder.
(ii) The content of alleged text messages is not known to the accused on which the
State prosecutor had placed reliance during the trial.
(iii) The Accused/Respondent is a handicapped person who can’t move without the
use of his prosthetics and is vulnerable to any attack made to him.
(iv) That the accused/respondent had no time to reflect upon the situation and to
take recourse or confirm whether his girlfriend was in bedroom when he
didn’t get any response from his girlfriend while he raised hue and cry and
screamed so as to alert her about the presence of an intruder in their house.
(v) There was darkness in the short passage to the bathroom where the alleged
incident had taken place and the accused was not wearing his prosthetics in
such a panic situation.

18. The Ld. Sessions Court had placed reliance on the fact that there was some
conflict and tension between the deceased and the accused which was shown by a
transcript of text messages that had passed between them. The state prosecutor
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during trial had attempted to persuade the Court that the deceased, Miss Maria had
locked herself into the toilet cubicle in the bathroom to escape through the
window as the accused had threatened her. In the course of event, the accused
fired four bullets from his 9mm pistol through the door and killed her.

19. These grounds have wrongly been relied on by the Ld. Trial Court in convicting the
accused for the murder of his girlfriend Miss Maria. The accused was not aware
of the fact that it was the deceased, Maria who was in the bathroom. Moreover,
when he screamed and made several hue and cry to Maria to get down then also,
she didn’t make any remark. The accused is physically disabled person and there
was darkness all around the room.

20. Moreover, the prosecution had also not disclosed the fact that what was the
content of the transcript of text messages on which they had placed reliance so as
to prove the fact that there was a conflict and tension between the deceased and
the accused/respondent.

21. Therefore, it can be concluded that the Ld. Trial Court has not correctly
appreciated the evidences led before it by the Prosecution and the defence.

22. It is humbly submitted before the Hon’ble Court that in the light of the
abovementioned arguments and the incorrect appreciation of the evidence by the
Ld. Trial Court and given the limited powers of the High Court u/s 377 Cr.PC., this
Hon’ble Court must set aside the judgment of conviction of the Ld. Sessions Court
by which the present Respondent had been convicted for culpable homicide not
amounting to murder of his girlfriend Miss Maria, the deceased, or In alternative,
order for the acquittal of the accused/respondent of the charges or dismiss the
appeal filed by the State for the enhancement of the sentence imposed by the Ld.
Trial Court below.

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, it is most humbly
prayed that in the interest of justice, the Hon’ble Court may be pleased to:

(vi) Acquit the Accused/Respondent of the charges he had been convicted of by the
Ld. Sessions Court for the culpable homicide not amounting to murder of his
girlfriend Miss Maria, in view of his physical disability and no intention to
cause the death of the deceased;
(vii) Dismiss the present appeal of the prosecution which has been filed for the
enhancement of the punishment imposed by the Ld. Sessions Court, Navi
Mumbai on the Accused/Respondent for the culpable homicide not amounting
to murder of Miss. Maria;
(viii) In alternative, to uphold the judgment of conviction rendered by the Ld.
Sessions Court, Navi Mumbai wherein, the Accused/Respondent had been
convicted for killing his girlfriend Miss. Maria, for the offence of culpable
homicide not amounting to murder;

AND/OR

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

Place: Mumbai, Maharashtra

Date: 11/10/2013
Sd/- Counsel for Respondent

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