Team Code:03
CLASS MOOT 2020
BEFORE
THE HONOURABLE
SUPREME COURT OF INDIA
Criminal Appeal Preferred
Crl. A. NO. ______/2020
STATE OF TAXILA
[APELLANT/PETITIONER]
v.
VIR BAHADUR
[RESPONDENT]
-MEMORANDUM ON BEHALF OF PETITIONER-
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This document is the memorandum on behalf of PETITIONER of the moot court problem STATE OF TAXILA V. VIR BAHADUR
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Team Code:
CLASS MOOT 2020
BEFORE THE HONOURABLE SUPREME COURT OF INDIA
Criminal Appeal Preferred
Crl. A. NO. ______/
STATE OF TAXILA [APELLANT/PETITIONER] v****. VIR BAHADUR [RESPONDENT]
-MEMORANDUM ON BEHALF OF PETITIONER-
COUNSEL FOR PETITIONER
INDEX OF AUTHORITIES
CASES REFERRED
ļ· Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad)
ļ· Rizan v. State of Chhattisgarh, AIR 2003 SC 976
ļ· Regina vs. Prince L.R. 2 Cr. CAS. Res. 154 (1875)
ļ· State of Orissa vs. Bhagbhan Barik (1987) 2 SCC 498
ļ· Kishan Chandar V St of Delhi AIR 2016
ļ· State of NCT of Delhi v. Ravikant Sharma
ļ· Milmadhub Sirchar v. R (1885) 3 WR(Cr) 22
ļ· Sheik Choollye v. R 1865 WC 4
ļ· B.N. Srikantiah v. Mysore State AIR 1958 SC
ļ· Prabhu vs State Of M.P
ļ· Mathai v. State of Kerala 2005 (2) JT 365
BOOKS, ARTICLES & JOURNALS
ļ· Dr. Avatar Singh, Principles of The Law of Evidence, 15
th
Edn., Central Law
Publications, (2005)
ļ· Kishor Prasad Advocate, Problems and solutions on Criminal Law, Universal Law
Publications, (2009)
ļ· Ratanlal Dhirajlal, The Indian Penal Code, Wadhwa and Co., 33
rd
edition, (2012)
ļ· Ratanlal Dhirajlal, The Law of Evidence, Lexis Nexis publications (2013)
ļ· R.K. Kelkar, Outlines of Criminal Procedure, Eastern Book Company (2004)
ļ· JUSTICE B L HANSARIAāS, WRIT JURSIDICTION (3 ed. 2005)
ļ· M.P. JAIN, penal laws of india 1002 (2003)
STATUTES REFERRED
1. The Code of Criminal Procedure, 1973
2. The Indian Evidence Act. 1872
3. The Indian Penal Code, 1860
WEBSITES
Manupatra Online Resources, http://www.manupatra.com.
Lexis Nexis Academica, http://www.lexisnexis.com/academica.
Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
SCC Online, http://www.scconline.co.in.
Oxford Dictionary,
http://www.oxforddictionaries.com.
https://www.lawctopus.com https://indiankanoon.org
STATEMENT OF JURISDICTION
THE PETITIONER HEREBY SUBMITS TO THE JURISDICTION OF THE HONOURABLE SUPREME COURT OF INDIA.
An appeal can be filed against any judgment, final order or sentence of a High Court in a criminal proceeding in following situations.
- Firstly, if the concerned High Court has an appeal reversed an order of acquittal of an accused person and sentenced him to death. Imprisonment for life as to imprisonment for a period of not less than ten years.
- Secondly, if the High Court has withdrawn for trial before itself any case from any of its subordinate courts and in such trial has convicted the accused person and sentenced him to death or to the imprisonment for life or for a period of not less than ten years.
- Thirdly, if the High Court certifies that the case is a fit one for appeal to the Supreme Court.
- Lastly, a person convicted on a trial held by the High Court in its extraordinary original criminal jurisdiction can also appeal to the Supreme Court.
- However no appeal can be filed by a convicted person if the sentence, passed against him by the HC does not exceed the term of 6 months as fine not exceeding 1000 as both such imprisonment and fine.
- The criminal appeal can be filed if the High Court disregarded or misapplied the established principles of criminal law.
- The memorandum of appeal should be in the form of a petition and should contain concisely and as far as possible, in a chronological order the principal steps in the proceedings from its commencement in the subordinateās courts till its conclusion in the High Court.
- The petition of appeal has to be accompanied by a certified copy of the judgement/order challenged in the appeal and as well the certified copy of the certificate of the High Court in case appeal is filed on a certificate.
- In cases where the High Court has passed a summary order (that is a brief order without hearing the matter in details) or where the High Court has not recorded reasons as grounds for granting the certificate and in certain appeals in the contempt cases 4 certified (or uncertified copies if such copies are affirmed to be true copy upon affidavits of the judgement or order and decree of the subordinate court are also required to be filed with the petition of appeal.
- Where the appellant has been sentenced to a term of imprisonment, the petition of appeal is required to state if the appellant has surrendered. If the appellant has not surrendered to the sentence, the appeal cannot be registered unless the court on a written application orders its registration where the appellant is in jail; he may present his petition of appeal through the offices-in-charge of the jail.
STATEMENT OF FACTS
ļ At village Bahadurgarh in Virganj district, there is an abandoned aerodrome where large quantity of valuable aeroscrap is collected. The Defence Department left two Choukidars namely, Jishnu and Jitender with a view to prevent pilferage by unauthorized persons.The aerodrome area is surrounded by many tribal villages which are inhabited mostly by Mahi tribes, which is an uneducated and orthodox tribe. The tribes have a very strong belief in existence of ghosts and the abandoned aerodrome earned notoriety in that area as being infested with ghosts. ļ One day Dushyant Singh from the firm of Singh Brothers, Newcity, visited to village Bahadurgarh accompanied by his servant Vir Bahadur for the purpose of purchasing the said aerodrome. He and his servant stayed in the nearby house of Ravi Kishan, who is running a tea stall in village Bahadurgarh.There are several foot-paths cutting across the aerodrome, leading one village to another. But on account of their fear of ghosts the people would not ordinarily venture out at night alone on those paths. ļ When Dushyant Singh and his servant Vir Bahadur were in the village, one Chand Mahi from Village Rajgarh, which is a nearby village of Bahadurgarh, went to the tea-stall of Ravi Kishan in village Bahadurgarh at about 8:30 pm and took shelter there for a night because he was afraid of proceeding back alone to his village Rajgarh at that hour of the night for fear of ghosts. ļ In the midnight Dushyant Singh and his servant thereafter had a conversation with Chand Mahi and in their conversation Dushayant Singh showed his anxiousness to see ghosts, and Chand Mahi suggested that āas present is a full moon night the ghost will be most active on this specific nightā , relying on this statement of Chand Mahi, Dushyant Singh and his servant Vir Bahadur agreed to travel with him at night and offered to drop him back to his village in the process, they jointly also persuaded Ravi Krishan to accompany them to see ghosts. All four of them thereafter initiated their on foot journey with torchlight in their hands to Rajgarh village through a foot-path across aerodrome. ļ While passing through the aerodrome they noticed a flickering light at distance of about 500 meters from path-way. Strong wind was blowing and the movement of the light in that breeze created in them an impression that it was not an ordinary light but 'will-o' the wisp.' They also found some apparitions moving around the flickering light. They thought that some ghosts were dancing around the light and they all ran towards that place. ļ Vir Bahadur (Servant) reached first with his 'khukhri' in hand and began to attack ghosts indiscriminately. Ravi Krishan arrived there some time later, however Vir Bahadur did not notice
EXHIBIT I FIRST INFORMATION REPORT (u/s. 154 of CrPC)
1. District: Virganj; PS: Ramvan; Year: 2015
- FIR No: 172/
- Date of occurrence: 09/09/ 4. Acts: i. Vir Bahadur, 302, 324, 326, 336 of the Indian Penal Code. 5. Occurrence of Offence: Day: Friday. Time: Approximately 11:50 PM. 6. Information recorded at PS: Date -10th October, 2010; Time: 8:20 AM 7. General Diary Reference Entry No. 7 of 10th October, 2010 8. Information recorded by: Head Constable Raj Kumar
9. Type of information: Personal Written/Oral: Oral 10. Place of occurrence: Bahadurgarh Village. Distance from Police Station - 15 km 11. Informant Name : Rajesh Mahi Nationality: Indian Occupation: contractor 12. Details of Known/ Unknown/ Suspected/ Accused with particulars: Suspected persons i. Mr. Vir Bahadur, Age 35, S/o Mr. Ram Bahadur Occupation: household servant 13. FIR Contents ā On 10/10/2010, Mr Rajesh Mahi has come to the police station and has stated that his wife Mrs. Geeta Mahi was attacked by someone with a sharp weapon and was killed. He has further stated that two more women namely Ms. Ganga Mahi and Sunahri Mahi who are the sisters of Rajesh Mahi were also attacked by sharp weapon and are admitted to the hospital as they are severely injured. Based on the statement a complaint has been registered. 14. FIR read to the complainant/ informant, admitted to be correctly recorded and a copy given to the complainant/ informant free of cost.
ISSUES PRESENTED
- Whether the act done by the petitioner falls within S.79 of IPC?
- Whether there is any material contradiction of S.161 Cr.P.C?
- Whether the petitioner has committed offences u/s. 302,324 and 326 of IPC?
SUMMARY OF ARGUMENTS
ļ The act done by the petitioner does not falls within S.79 of IPC?
The two sections exclude a person from criminal liability when they are ignorant of the existence of relevant facts or have mistaken them and commit a wrongful act for which he neither could foresee nor intended the unlawful consequence. It is important that the mistake must be reasonable and must pertain to the fact of the case and not the law.
ļ There exists material contradiction of S.161 Cr.P.C?
This section empowers the police to examine witnesses during the course of an investigation. Any person who is supposed to be acquainted with the facts and circumstances of the case may be examined orally.
ļ The petitioner has committed offences u/s. 302,324 and 326 of IPC
As per second clause of Section 300, if a person intentionally causes bodily injury, with the knowledge that such bodily injury will cause death of the person injured, then it will be culpable homicide amounting to murder. In case of offence falling under clause (2) of Section 300, there is first, the intention to cause bodily harm and next, there is the āsubjective knowledgeā that death will be the likely consequence of the intended injury.It is said to be āsubjective knowledgeā, because it is the accusedās own personal perception of the consequence of his act. Here āknowledgeā on the part of the offender imports certainty and not merely probability.
Plea of self-defence When the prosecution has established its case, it is incumbent upon the accused, under section 105 to establish the case of his private defence by showing probability; 1. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record;^2 .In the case of General Exceptions Doctrine of Strict Liability is applied. In case Regina vs. Prince^3 , Facts : Defendant was convicted of taking an unmarried girl under 16 years out of the possession and against the will of her father. The jury found that the girl had told the defendant she was 18, the defendant honestly believed the statement, and his belief was reasonable. Defendantās argument : The statute has a requirement read into it that the prosecution must prove that the defendant believed the girl he had taken was over 16. Stateās argument : The statute does not require this proof. The act of taking a girl out is wrong in and of itself ā that is the mens rea. It does not matter that he thought the girl was older. Just like it would not matter whether he knew or did not know whether she is under 16. However, it would have mattered if he did not know the girl was in the custody of her father. Holding : Conviction affirmed. Reasoning : The court interpreted the statute to require a strict liability application. The Common Law does not allow defenses to strict liability. In State of Orissa vs. Bhagbhan Barik 4 Brief Facts: The accused had beaten the deceased very strongly. He pleaded that he believed the deceased as a thief in good faith and also contended that he would be protected under Sec. 79 and under the right of private defence. The Prosecution contended that the incident took place at a tank.There was a long distance 1 Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad) 2 Rizan v. State of Chhattisgarh, AIR 2003 SC 976
3 L.R. 2 Cr. CAS. Res. 154 (1875)
4 (1987) 2 SCC 498
between the place of incidence and the accusedās house. No property of the accused was stolen. Hence he could not plea the right of private defence of property. The Court did not believe the accusedās version, and imposed punishment under Sec. 304 Part-II for three years rigorous imprisonment. Thus here the petitioner is bound to prove S.79 and on relying the case laws cited the accused maybe convicted.
Inordinate delay on the part of the investigating officers in recording statements of witnesses including the accused and the suspects may throw doubt on the veracity of the prosecution case. The Magistrate should ask the investigating officer to explain the reason for delay in recording of statements of witnesses etc. and if the delay is properly explained, it will have no adverse affect on the probative value of the witness concerned. The statements of witnesses under Section 161 should be recorded in the first person, and they should not be in indirect form of speech. No oath or affirmation is ā required in an examination of witnesses under this section. It is not mandatory for the investigating officer to reduce in writing the statement of the person examined. But the statement, if recorded, must be recorded as it was actually made. As sub-section (3) prohibits making of precis of a statement recorded under Section 161 of the Code. The Supreme Court in 6 explained the privilege in respect of statement of witnesses recorded under Section 161 during investigation and held that any direction to supply āgistā of such statements was unsustainable because such statement of witnesses recorded during investigation does not include interpretation of Investigation Officer. 6 State of NCT of Delhi v. Ravikant Sharma
III. The petitioner has committed offences u/s. 302,324 and 326 of IPC.
III a. Section 300 defines murder with reference to culpable homicide defined in Section 299. Homicide is the causing of the death of one person by another. Homicide may be culpable, and culpable homicide may amount to murder. Homicide is culpable homicide simpliciter if death is caused by the doing of an act with the intention of causing, or with the knowledge that the doer of the act is likely by such act to cause death; or with the intention or knowledge of causing death under the following circumstances, namely:
- If the offender, whilst deprived of the power of self control under grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.
- If the offender, whilst exercising in good faith the right of private defence, exceeds the power given by the law and causes the death of the person against whom he is asserting the right, without premeditation and intention of doing more harm than is necessary for such defence.
- If the offender causes the death by doing a lawful act in an unlawful manner.
- If the death is caused in a sudden mutual combat.
- If the death is caused by valid consent. Essentials of the offence of murder The offence is murder in the following cases:
- If the act is done with the intention of causing death.
- If the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.
- If the act is done with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death.