MOOT COURT EXERCISE

PROBLEM NO. 5

IN THE HON’BLE HIGH COURT OF

BOMBAY AT MUMBAI

CRIMINAL APPEAL NO. /2024

IN THE MATTER OF

STATE OF MAHARASHTRA.......................................APPELLANT

VERSUS

JEROME …………………… RESPONDENT

APPEAL UNDER SEC. 419 OF BHARTIYA NAGRIK SURAKSHA

SANHITA ON BEHALF OF THE STATE AGAINST JUDGEMENT OF
TRIAL COURT

MEMORIAL ON BEHALF OF THE PETITIONER

SUBMITTED BY:-
NAME - SHREEANSH DUBEY
EXAM ROLL NO. - 22309806794
SECTION - F
 1

INDEX

Table of Abbreviations 2

Table of Authorities 3

Statement of Jurisdiction 4

Statements of Facts 6

Issues 9

Summary of Arguments 10

Arguments Advanced 12

Prayer 20
 2

TABLE OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And
AIR All India Reporter
Co. Company
BNSS Bharatiya Nagarik Suraksha Sanhita, 2023
Cr. P.C Code of Criminal Procedure, 1973
Ed. Edition
Hon’ble Honourable
BNS Bhartiya Naya Sanhita, 2023
IPC Indian Penal Code, 1860
Ors. Others
SC Supreme Court
S. Section
v. Versus
U.P. Uttar Pradesh
SCC Supreme Court Reporter
MLJR Madras Law Journal Reports
Mad. Madras High Court
Crl. Criminal
SCR Supreme Court Reporter
M.P Madhya Pradesh
Cri LJ Criminal law Journal
pg. Page
i.e. id est
 3

AUTHORITIES CITED

● ACTS
○ BHARTIYA NAYA SANHITA, 2023
○ BHARTIYA NAGRIK SURAKSHA SANHITA, 2023

● BOOKS
○ Ratanlal & Dhirajlal, Indian Penal Code (PB), 375 (LexisNexis, 36th Ed., 2020)

● CASES
○ Jai Prakash v State( Delhi Administration) 1991 SCR (1) 202
○ Pulicherla Nagaraju @ Nagaraja ... vs State Of A.P Appeal (Crl.) 945 of 2004
○ Mahesh Balmiki @ Munna vs State Of Madhya Pradesh Dated 27/08/1999
○ State of M.P. v. Ram Prasad AIR 1968 SC 881
○ Deo Narain v. State of U.P AIR 1973 SC 473
○ Bhanwar Singh & Ors vs State Of M.P Criminal Appeal NO. 300 OF 2007
○ State of U.P. v Ram Swarup 1974 AIR 1570

● OTHER MATERIALS
○ Case Material, Law of Crimes-1, Faculty of Law
 4

STATEMENT OF JURISDICTION

The Appellant has filed the present Appeal before this Hon’ble Court which under the
provisions of S.418 BNSS, 2023 (S.377 CrPC, 1973) granting appellate jurisdiction.

The aforementioned provision reads as:-

“418. (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—
(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 by any
agency empowered to make investigation into an offence under any Central Act other
than this Sanhita, 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 64, section
 5

65, section 66, section 67, section 68, section 70 or section 71 of the Bharatiya Nyaya
Sanhita, 2023, the appeal shall be disposed of within a period of six months from the date
of filing of such appeal.

The present Memorial clearly sets forth the relevant facts, legal contentions, and
arguments supporting the Appellant's position, thereby assisting the Hon'ble Court in its
consideration of the case .
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STATEMENT OF FACTS

1. That Mr. Jerome (hereafter referred to as the Respondent/Accused) was born with
deformed legs which were surgically amputated below his knees, before his first birthday,
and has to rely on prosthetics to assure his mobility. He over the years had become a
famous athlete and had won many medals and acquired a lot of fame.The Accused met
Miss Maria (hereafter referred to as the Deceased) who was a successful model on 4 th
November 2012 and both got romantically involved with each other.

2. The Deceased used to stay over and sleep at the home of the accused which is a secured
complex known as Silver Woods Estate in Mumbai, Maharashtra. Over the period of time
the couple started developing differences and there were occasional conflicts and tensions
between the two as evidenced by the transcript of the messages that had been passed
between them.

3. On 13th February the Deceased had stayed over at the residence of the Respondent.In the
early hours of the following morning, screams, gunshots, loud noises and cries for help
were heard, emanating from the accused’s house.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 who was lying
on the floor at the foot of the stairs leading to the sleeping quarters of the house.

4. The Deceased had been carried there by the accused from an upstairs bathroom where
the shooting had taken place. She had been shot several times and was mortally wounded.
The severity of her injuries was such that she was not breathing and Dr Dilip was unable
to find a pulse. A FIR was registered against the accused under section 103(1) of BNS,
2023 (302 of IPC, 1860) for murder of the Deceased.
 7

5. During the trial the Appellant has submitted before the learned Trial Judge that the
accused had threatened the deceased during the course of an argument, that she had
locked herself into the toilet cubicle in the bathroom to escape from him, and that he had
thereupon fired the four fatal shots with a 9mm pistol through the door of a toilet cubicle
in the bathroom adjacent to his bedroom and killed her.

6. The Respondent, on the other hand had alleged before the Hon’ble Trial Court that during
the fateful early hours of 14th February 2013 he had woken up. As it was warm he sat up
and though the room was dark, with only light sources being g from a small LED on an
amplifier at the TV cabinet, he was aware that the deceased was awake in the bed next to
him. The deceased spoke to the Accused and he went outside to get two fans from the
balcony into the room, locked and closed the sliding door and drew the curtains.

7. The respondent then heard a sound of a window opening in the bathroom which is
situated not exactly adjacent to the bedroom but is down a short passage lined with
cupboards. He thought that there was an intruder in the washroom who had entered his
house through the balcony window via a ladder. He quickly grabbed his 9mm pistol
and whispered to the deceased to get down and call the police. He was not wearing his
prosthetics at that time and was overcome with fear due to which he started screaming
and shouting both for the intruder to get out and for the deceased to get down on the floor
and call the police.

8. The Respondent further alleged that on reaching near the entrance of the bathroom, the
respondent ‘stopped shouting’ so that the ‘intruder’ does not become aware of his exact
location. As he went near the bathroom, he heard the toilet door slam. Peering around the
wall at the end of the passage.

9. Respondent alleged that there was no one in the bathroom itself but that the toilet door
 8

was closed. He alleged that at that point he started screaming again, telling the deceased,
who he presumed was in the bedroom, to phone the police. He then heard a noise coming
from inside the toilet and promptly fired four 9mm shots at the door.

10. When the respondent finally unlocked the toilet door, after finding the key to the lock of
the door on the lying floor of the toilet, he found the deceased slumped with her weight
on the toilet bowl. She was not breathing. He held her and pulled her out of the bathroom
before telephoning the other two residents of the estate, Mr Raj and Dr Dilip, followed by
the calls made to the paramedic organisations for ambulance and the estate’s security by
the respondent.

11. The Accused pleaded not guilty for murdering the Victim before the Trial court and
the Learned Sessions Judge erroneously convicted the Respondent for the offence
under
section 105 of BNS, 2023 i.e. culpable homicide not amounting to murder, holding
that there was no intention holding that there was no intention to kill the person behind
the door. He had shot the deceased believing that she was an intruder.

12. Hence the present Appeal.

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ISSUES

I. Whether there was an intention behind the actions of the

Respondent/Accused to kill the deceased?

II. Whether the present case falls under the provisions of S.101 of BNS,
2023 (S.300 of IPC, 1860) and the Respondent can be convicted for the
same?

III. Whether the Respondent/Accused can raise the plea that his actions
were covered under Right of Private Defense?
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SUMMARY OF ARGUMENTS

I. Whether there was an intention behind the actions of the

Respondent/Accused to kill the deceased?

It is humbly submitted by the Appellant that the Learned Sessions Judge had erred in his
judgement and wrongly appreciated the facts of the present case as the same along with
case laws make it unreservedly clear that there was in fact intention to commit murder of
Miss Maria behind the actions of the Respondent. The accused concocted a story to
present his defence which is totally baseless and fictitious.

II. Whether the present case falls under the provisions of S.101 of BNS,
2023 (S.300 of IPC, 1860) and the Respondent can be convicted for the
same?

The Appellant humbly contends that the present case falls under the ambit of S.101(d) of
BNS, 2023 (S.300 (fourthly) of IPC, 1860). The Respondent had fired 4 rounds from his
9mm pistol, on the toilet toilet door behind which the deceased was present. The Accused
was fully aware about the position of the deceased and also about the fact that his actions
were dangerous enough as firing 4 rounds at any person or any direction shall lead to
disastrous/fatal outcome.There was no apprehension to the Respondent and the same was
done by him in the backdrop of the tension that had persisted in their relationship.

III. Whether the Respondent/Accused can raise the plea that his actions
were covered under Right of Private Defense?
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There was no immediate or imminent danger to the life or body of the Accused and the
whole story has been concocted by him. His submissions before the Learned Trial Judge
are marred by contradictions and he has clearly violated the provision under section 34 to
44 of the BNS, 2023 which deal with the Right of Private defence .
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ARGUMENTS ADVANCED

I. Whether there was an intention behind the actions of the

Respondent/Accused to kill the deceased?

A. It is submitted that the Hon’ble Sessions court when passing its final decision,
came to the conclusion that the respondent did not harbour any intention of killing
the respondent and therefore the respondent was held liable under ‘culpable
homicide not amounting to murder’. It is humbly submitted that the facts of the
case present a contrary scenario.

B. The definition of Intention has been comprehensively dealt with in Jai Prakash v
State( Delhi Administration)1 wherein the Hon’ble Supreme Court stated that
intention is a conscious state in which the mental faculties are aroused into
activity and summoned into action for achieving a conceived goal. It is the
shaping of one’s conduct to bring about a desired event. No one can intend to do
a thing without desiring it to happen. The Hon’ble Court further quoted Kenny in
"Outline of Criminal Law" (17th Edition at page 31) who has defined intention as
–

"Intention: To intend is to have in mind a fixed purpose to reach a desire objective;

the noun
`intention' in the present connexion is used to denote the state of mind of a man who
not only foresees but also desires the possible consequences of his conduct.”

1
1991 SCR (1) 202, 1991 SCC (2) 32
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C. Intention is the purpose or design with which an act is done 2. In R v Moloney3, it

was observed that the foresight of the consequences of the actions by the accused
can be admitted to infer intent of the offender. In the present case, it has been
clearly mentioned that there were gunshot wounds on the body and when Mr. Raj
and Dr. Dilip arrived at the house of the accused, there they found the accused 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 the house. She
had been carried there by the accused from an upstairs bathroom where the
shooting had taken place. She had been shot several times and was mortally
wounded. The severity of her injuries was such that she was not breathing and Dr
Dilip was unable to find a pulse.. The Supreme Court reiterated that the nature of
weapon used and vital part of the body where the injury was caused prove beyond
reasonable doubt the intention of the accused to cause death of the deceased. 4 In
the present case a 9mm Pistol was used which in itself is a testament if the danger
that was persistent all throughout.

D. It is submitted that in Pulicherla Nagaraju @ Nagaraja ... vs State Of A.P5 ,

Hon’ble Supreme Court had observed that deaths can arise from even the most
trivial matters which do not contain usual motives like revenge, greed, jealousy or
suspicion. On the other hand, there are cases of murder where the respondent
attempts to evade the punishment for murder by claiming that he/she had no
intention to cause death. Thus, the court needs to examine the facts of the case
closely so that the wrongdoer is convicted in the correct sentence. Therefore, the
court should observe utmost care and caution when deciding the question of
intention. 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
respondent or was picked up from the spot; (iii) whether the blow is aimed at a
vital part of
2
CJ M Monir, Commentary on the Indian Evidence Act, 1872 (14th edn, Universal Law Publishing 2021) 589.
3
R v Moloney [1985] AC 905 (HL)
4
Krishna Mahadev Chavan v State of Maharashtra 2021 SCC OnLine Bom 191.
5
Appeal (Crl.) 945 of 2004
 14

the body; (iv) the amount of force employed in causing injury; (v) whether there
was any prior enmity or whether the deceased was a stranger (vi) respondent has
taken undue advantage or has acted in a cruel and unusual manner; (vii) whether
the respondent dealt a single blow or several blows.

E. In Mahesh Balmiki @ Munna vs State Of Madhya Pradesh6 and Bhagwan

Bahadure vs State Of Maharashtra7 the Hon’ble Supreme Court held that,
factors such as the nature of the injury, , (i) the weapon used, (ii) the size of the
weapon (iii) the circumstances in which the injury is caused and (iv) the manner
in which the injury is inflicted (v) The place where the injury took place are all
relevant factors which may go to determine the required intention of the
offender and the offence committed by him.

F. It is submitted that in the present case, the respondent shot the deceased with a
9mm pistol which is a dangerous firearm. The facts of the case reveal that the
respondent clearly knew the location of the gun and did not have any difficulties
in locating the same. The respondent fired multiple times at the deceased and
thereby caused mortal injuries to the deceased. The injuries caused to the
deceased were so severe that she was not breathing, and the medical practitioner
could not find a pulse on the deceased. All these clearly show that the respondent
has taken undue advantage and executed his act with utmost cruelty and in an
unusually barbaric manner.

II. Whether the present case falls under the provisions of S.101 of BNS,
2023 (S.300 of IPC, 1860) and the Respondent can be convicted for the
same?
6
Decided on 27/08/1999
7
Appeal (crl.) 1304 of 2007
 15

A. Under Section 101 of the BNS, 2023, a voluntary culpable homicide under
Section 100 of the BNS, 2023 is murder, unless it falls under any of the mitigating
circumstances provided for. The essential ingredients of an offence under Section
100 have been met in the present case and consequently, it is submitted that the
essential ingredients for an offence under Section 101 have also been met. It is
also submitted that the present case does not fall under any of the mitigating
circumstances listed under Section 101 and therefore, the appellant is guilty of the
offence of voluntary culpable homicide amounting to murder.

B. On the plain reading of the provisions under section 101 of BNS, one may find
themselves coming to a conclusion that the present case fits perfectly in the mould
provided by the legislature to label a homicide as murder. The section reads as
follows:-
“101. Except in the cases hereinafter excepted, culpable homicide is murder,––

(d) if the person committing the act by which the death is caused, knows that it is
so imminently dangerous that it must, in all probability, cause death, or such
bodily injury as is likely to cause death, and commits such act without any excuse
for incurring the risk of causing death or such injury as aforesaid.

C. The facts of the present case clearly reveal that the relationship between the
respondent and the deceased was not all amicable. The text messages exchanged
between the respondent and the deceased clearly expose the chinks in their bond.
It is submitted that it was on the pretext of one such argument that the
respondent took the ghastly step of actually killing the deceased by shooting at
her multiple times through the door of the toilet cubicle where she had fled to
hide from the respondent.

D. The question before this Hon’ble Court is whether the rash and reckless act of the
 16

respondent of shooting with a 9 mm gun from the other side of the door without
any immediate apprehension of danger is so imminently dangerous that in all
probability it will cause the death of a person?

E. In the facts before us, the respondent is claiming that he had an apprehension that
somewhere was behind the door, and it is an undeniable fact that any person
shooting at the door with a 9 mm pistol and with the full knowledge that there is
someone behind the door has knowledge that he/she will cause death by such act.

F. The present facts are very similar to the illustration (d) of S101(d):-

A without any excuse fires a loaded cannon into a crowd of persons and kills
one of them. A is guilty of murder, although he may not have had a premeditated
design to kill any particular individual.

G. This clause also provides for that class of cases where the acts resulting in death
are calculated to put the lives of persons in jeopardy without being aimed at any
one in particular, and are perpetrated with a full consciousness of the probable
consequences, e.g., where death is caused by firing a loaded gun into a crowd8.

H. The Hon’ble Apex Court in State of M.P. v. Ram Prasad9 has held that
although this clause is usually invoked in those cases where there is no intention
to cause the death of any particular person, the clause may on its terms be used in
those
cases where there is such callousness towards the result and the risk taken is such
that it may be stated that the person knows that the act is likely to cause death or
such bodily injury as is likely to cause death.

8
Ratanlal & Dhirajlal, Indian Penal Code (PB), 1033 (LexisNexis, 36th Ed., 2020)
9
AIR 1968 SC 881 [LNIND 1967 SC 358]: 1968 Cr LJ 1025.
 17

III. Whether the Respondent/Accused can raise the plea that his actions
were covered under Right of Private Defense?

A. It is submitted that the respondent had argued in the trial court that he had shot
the deceased in self- defence as he perceived a danger of imminent attack from an
intruder. It is humbly submitted that facts of the case reveal that such an argument
militates against the very jurisprudence of the right of private defence.
B. IN the case of Deo Narain v. State of U.P10 The Hon’ble Apex Court has stated
that even though the right of private defence has been exercised in good faith, it is
not free from limitations. Firstly, the right of private defence is available only
against those acts which are in themselves offence under the BNS.; Secondly, the
right commences as soon as and not before a reasonable apprehension of danger
to the body arises from an attempt or threat to commit some offence although the
offence may not have been committed and it continues with the duration of such
apprehension. This means that right avails only against a danger which is
imminent, present and real and not remote or imaginary. Thirdly, it is a defensive
and not & punitive, vindictive, or retributive right. No one is to inflict more harm
than what is necessary for the purpose of defence. Fourthly, the right extends to
the killing of the actual or potential assailant when there is a reasonable and
imminent apprehension of the atrocious crimes enumerated in the seven clauses of
Section 38 of BNS. Fifthly, Right of Private Defence is not available when
recourse from the authorities can be sought or when there is an opportunity for
retreat.

C. It is submitted that the facts of the case evidently show that the respondent was
under no threat of imminent attack which could have caused a reasonable
apprehension in his mind of his life being in danger. It is evident from the facts of

10
AIR 1973 SC 473
 18

the case that the door of the toilet was closed throughout the incident and the
respondent did not make any attempt to discern the identity of the person in the
washroom. Therefore, it was unreasonable for the respondent to have presumed
that the person in the toilet intended to be an imminent danger to his life and limb.
Furthermore, there was no assault or attack on the respondent which is the first
requirement to activate the right of private defence as mentioned in S.40 of BNS.
Therefore, no situation ever arose which could have caused to generate any
reasonable belief in the respondent, who, even though was in panic, could have
thought that he was legally justified in using such extreme force to defend
himself.

D. It is further submitted that the respondent states that it was only after he shot the
person in the washroom and came back into his room that he realised that the
deceased was not inside the bedroom and that it could have been her in the
washroom. The facts of the present case clearly show that the respondent called
out to the deceased three times to hide and call for the police. It can be reasonably
assumed from the facts of the above case that the respondent heard no response
from her. Therefore, the respondent should have first ascertained the whereabouts
of the deceased before he fired the shots. The behaviour of the respondent was
clearly beyond the range of reason. Furthermore, the respondent lived in a secure
complex and thus should have known that the possibility of someone climbing a
ladder and entering his house without being seen and caught is remote. Thus, the
course of action adopted by the respondent violates the innate rationality
possessed by a sane human being.

E. In Bhanwar Singh & Ors vs State Of M.P11The Hon’ble Supreme Court has
held that “There is no right of private defence where there is no apprehension of
danger.” Furthermore, the respondent is clearly the aggressor in the present
case

11
CRIMINAL APPEAL NO. 300 OF 2007.
 19

which further disqualifies the respondent from claiming protection under right of
private defence. In the case of the State of U.P. v Ram Swarup12 , The Hon'ble
Supreme Court has held that the right to private defence cannot be availed of as a
defence by a person who stage manages a situation and uses the right to justify his
aggression. In the present case, it is submitted that the facts of the case show that
the person within the toilet had never even stepped out, before the respondent shot
the person dead. It is therefore evident that the respondent had enough time to
make a retreat and/or take the help of authorities. Thus, the respondent has clearly
violated the restrictions on the exercise of right to private defence as enshrined in
S.37 of the BNS. This disqualifies the respondent from availing the protection of
the right of private defence.

F. The respondent has further argued that the person behind the washroom, whom
he erroneously perceived to be an intruder posed a threat to his property and that
his actions can be justified under S.41 of the BNS. It is however submitted that
this defence too falls on shaky grounds. Exercising the right to private defence of
property, like right to private defence to the body, is saddled by the restrictions
mentioned under section 37 of the BNS. As stated above, the actions of the
respondent clearly violate those restrictions, which disentitle the respondent from
taking protection under right to private defence of property.

12
AIR 1974 SC 1570
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PRAYER

Wherefore in the light of the facts stated, issue raised, authorities cited and arguments
advanced, and in the interests of justice, the appellant most humbly prays this Hon’ble
Court may be graciously pleased to direct:

a) That the respondent is held guilty for Murder under section 103(1)
of Bhartiya Naya Sanhita, 2023

b) Pass any other order, direction or relief that this Hon’ble Court may
be deemed fit in the interest of Justice, Equity and Good Conscience.

And for this, the appellants as in duty bound shall humbly pray.

SD/-

Counsel For
Appellant.