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THE BIJAN KUMAR MUKHERJEE INTRA –MOOT COURT COMPETITION,2020
MEMORIAL ON BEHALF OF RESPONDENT Page 1
Team Code:
THE BIJAN KUMAR MUKHERJEE
INTRA-MOOT COURT COMPETITION 2020
IN THE HON’BLE HIGH COURT OF CALICUTTA
MR. BANERJEE
(APPELLANT)
V.
SAMPURNA
(DEFENCE)
UPON SUBMISSION TO THE HON’BLE HIGH COURT JUDGES OF CALICUTTA
MEMORIAL ON BEHALF OF THE DEFENCE
Team Code: 1
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Team Code:

THE BIJAN KUMAR MUKHERJEE

INTRA-MOOT COURT COMPETITION 2020

IN THE HON’BLE HIGH COURT OF CALICUTTA

MR. BANERJEE

(APPELLANT)

V.

SAMPURNA

(DEFENCE)

UPON SUBMISSION TO THE HON’BLE HIGH COURT JUDGES OF CALICUTTA

MEMORIAL ON BEHALF OF THE DEFENCE

Team Code: 1

Table of Contents

List of Abbreviations 4 Index of Authorities 5-  Table of Cases 5-Books 7Websites 7Statutes 7 Statement of Jurisdiction 8 Statement of Facts 9 Statement of issues 10 Summary of Arguments 11- Arguments Advanced 13- Issue-I: Whether the agreement is void or not? 13- Issue-II:Whether there is breach of contract or not after attending majority? 16- Issue-III:Whether Mr. Banerjee is eligible to recover his debt or not? 20- Prayer 27

LIST OF ABBREVIATIONS

& And A.P. Andhra Pradesh AIR All India Report Anr. Another BPC Barat Penal Code CrPC Code of Criminal Procedure E.g. Example Hon’ble Honorable IPC Indian Penal Code M.P. Madhya Pradesh No. Number

13. Gurmit Singh v. St. of Punjab,AIR 2001 SC 2977,

    1. DuyanuHariba Mail v. State of Maharashtra, (1970) 3 SCC
    1. In Re Vadaychi, 1972 Cri LJ 14. Hansa Singh v. St. of Punjab, 1977 Cri LJ 1448;
    1. Jage Ram v. State of Haryana, (2015) 11 SCC
    1. Jaspal Singh & Another v. State, 1986 SCC OnLine Del
    1. Jodha v. State of Rajasthan, 1994 SCC OnLine Raj
    1. K.M. Nanawati v. State of Maharashtra, AIR 1962 SC
    1. Kaluram v. St. of Assam 1977 CR LJ
    1. Kashiram v. St. of M.P. (2002) 1 SCC
    1. Kulwant Singh v. St. of Punjab,(2004) 9 SCC 257, (2004) SCC (Cr)
    1. LaxmanSahu v. St. of Orissa, AIR 1988 SC 83, (1986) Supp SCC
    1. Madhaven v. St. of Kerla, 1966 Ker LT
    1. Mohd Khalid v. State of West Bengal (2002) 7 SCC 334, (2002) SCC (Cr)
    1. Partap v. St. of Uttar Pradesh,AIR 1976 SC
    1. PranDutt v. U.P. (1983) 1 Crimes
    1. R v. Duffy, (1949) 1 All ER
    1. Raghunath alias Ram Singh, (1940) 16 Luck
    1. RennePriyadarshiniKashyap v. State of Gujarat, 2015 SCC OnLineGuj 30. Raj Pal v. State of Haryana, (2006) 9 SCC 678, (2006) 3 SCC (Cri)
    1. Scaria @ Thankan v. St. of Kerala, AIR 1955 SC
    1. Sarju Prasad v. State of Bihar, AIR (1965) SC
    1. St. of Karnataka v. Madesha, (2007) 7 SCC
    1. St. of Maharastra v. Kashirao, (2003) 10 SCC 35. State of Kerala v. Hamsa, (1988) 3 Crimes 161 (Ker)

37. St. of U.P. v. Chatur Singh, (2005) 13 SCC 360 38. St. of U.P v.Gajey Singh, (2009) 11 SCC 414 39. TarkeshwarSahu v. State of Bihar, (2006) 8 SCC 560 40. Thakur Mahato v. St. of Bihar, (1972) Cr Lj 835 (Pat) BOOKS: 1. RatanlalandDhirajlal,TheIndianPenalCode,33rdEd.(2011) 2. P.S.A. Pillai, Criminal Law (13th^ Ed. 2017) 3. Gaur, KD, Criminal Law: Cases and Materials, (6th^ Ed. 2009) 4. Gupta and Dighe, Criminal Manual, (7th^ Ed. 2007) 5. Kelkar, R.V. Criminal Procedure, (5th^ Ed. 2011) 6. Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010) 7. Harris, Criminal Law, (22nd Ed. 2000) 8. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008) WEBSITES: 1. http://www.scconline.com 2. http://www.manupatrafast.com 3. http://www.findlaw.com 4. http://www.judis.nic.in

r/w Order XLI: XLI. APPEAL FROM ORIGINAL DECREES: 1.Form of appeal. (1) What to accompany memorandum.- Every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and ( unless the Appellate Court dispenses therewith) of the judgement on which it is founded: Provided that where two or more suits have been tried together and a common judgement has been delivered therefor and two or more appeals are filed against any decree covered by that judgement, whether by the same appellant or by different appellants, the Appellate court may dispense with the filing of more than one copy of the judgement. (2) Contents of memorandum.- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative ; and such grounds shall be numbered consecutively (3) where the appeal is against the decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. The Counsel for the Appellant most respectfully submit to this jurisdiction of the Hon’ble High Court. The Counsels for the respondent most respectfully submit to this jurisdiction of the Hon’ble High court.

STATEMENT OF FACTS

  1. On the 12th of June 2017 at around 10:00 am. Deven and Pooja were going to meet each other at the Indira Nagar metro station. Kavita and Jeyant were accompanying Pooja.
  2. Everyone panicked when Deven while talking to Pooja took out a knife. After seeing the knife Jeyant alerted the public and threw stones at Deven. Deven took Pooja as a human shield and asked everybody to back off. On seeing the crowd approaching towards him, he used the knife he was wielding on Pooja injuring her and she fell unconscious.
  3. Deven was overpowered by the crowd and Jeyant started beating him. The ambulance came with police and they both were taken to the hospital in the critical state and were admitted to ICU.
  4. Deven and Pooja moved to Punnai after completing their graduation. Pooja got campus placement and Deven got a job with a private builder. Pooja was staying with Kavita in a flat near Indira Nagar metro and Deven was staying as a paying guest with Kishore.
  5. Pooja started distancing herself from Deven after moving to Punnai and Deven was not taking it well. On 9th^ June they met at the Taj restaurant and Pooja informed him of her plan to become an air hostess. Deven abused her and told her that she is losing her character, reacting to the insult, Pooja slapped Deven after
  6. Deven then got drunk with Karan, whom he met on his way to home and after getting intoxicated he again called Pooja late at the night asking her to meet for one last time and he wants to apologize for what he had done. They met at Indira Nagar metro station where the incident took place.

STATEMENT OF ISSUES

ARGUMENTS ADVANCED

ISSUE 1:

Whether Deven is guilty of stalking and outraging the modesty of Pooja? It is humbly submitted before this Hon’ble Court that Deven (hereinafter referred to as “A1”) can neither be charged for the offence of outraging the modesty of Pooja (hereinafter referred to as “the victim”) nor for stalking her as well. The council, proving the innocence of the

accused, has divided his arguments on this issue into two parts. The offence of outraging Pooja’s modesty will be dealt with in the first part, while the second part will deal with the offence of stalking. 1.1- For Outraging Pooja’s modesty: It is humbly submitted before this Hon’ble Court that the acts committed by Deven (hereinafter referred to as Accused No. 1) did not, in any way outraged the modesty of Pooja (hereinafter referred to as Victim) as per the provisions of Section 509 of the Barat Penal Code, 1860^1 (hereinafter referred as ‘BPC’). Instead, they were the repercussions of casting aspersions on Deven by her. It is to be noted that the essential ingredients of Section 509 are as follows – ● Intention to insult the modesty of a woman ● The insult must be caused by uttering some word, or making some sound, or gesture, or exhibiting any object so as to be heard or seen by such a woman. An intention can be understood as the willingness to bring about something planned or foreseen.^2 An act is intentional if, and in so far as, it exists in the idea before it exists in fact, the idea of realizing itself in the fact because of the desire in which it is accompanied.^3 The Supreme Court laid that the culpable intention of the abused is the crux of the matter.^4 The counsel submits that the intention to insult the modesty of the woman is lacking in this case. It is true that intention is one of the essential ingredients of any criminal offence. Those ingredients being the state of mind may not be proved by direct evidence and has to be inferred from attending circumstances of the given case.^5 (^1) Barat Penal Code, 1860 (45 of 1860), Bare Act, Universal Law Publication (^2) Black’s Law Dictionary with Pronunciations (^3) John Salmond, Jurisprudence 378 (Glanville L Williams ed., 10th (^) ed. 1947). (^4) TarkeshwarSahu v. State of Bihar, (2006) 8 SCC 560 (^5) RupanDeol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194

Section 354D of BPC has two main ingredients: ● If a man follows a woman and contacts or attempts to contact such a woman ● To foster personal interaction repeatedly despite a clear indication of disinterest by such a woman. The word “clear indication” in general sense means a sign that is certain and unmistakable. The counsel would like to bring in view the fact that Accused no. 1 never got any clear indication from the victim. Everything was going smoothly between both of them even after moving to Punnai (Annexure 2(13)). They had a good relationship for one year. However, suddenly the victim stopped responding to calls and texts by the accused, which baffled him.He got excuses like she was busy with work and would contact him later. And akin to the man in love, he believed her and thought she was actually busy. Deven was concerned about her safety and would often talk about it with his friend (Annexure 2(8)). He also tried to contact Divya, the victim’s roommate and their mutual friend, but could not gather any information about Pooja’s wellbeing. (Exhibit H) Eventually, Deven waited for her outside her office. The intention was not to stalk but to inquire about the safeness of the woman he was in the relationship with. This is not a case of one-sided love and there was a mutual investment in the relationship from both sides. The clear indication of disinterest is one of the most important factors to determine whether the offence of stalking is actually committed or not.^7 Ergo, it is established that the accused did not get any clear indication of disinterest by the victim and so, he cannot be held guilty under this section for the offence of stalking. ISSUE 2: Whether Deven is guilty of attempt to murder? (^7) T. Manikandan v. The State (Govt of NCT of Delhi), (2017) 237 DLT 271; RennePriyadarshiniKashyap v. State of Gujarat, 2015 SCC OnLineGuj 5196

It is humbly submitted before this Hon’ble Court of Session that Deven (A1) has not committed an offence u/s 307 BPC and shouldn’t be charged with attempt to murder of Pooja. In order to prove the crime u/s 307, analysis of different stages of crime is important. The first stage is the intention to commit the crime, secondly, the preparation to commit the crime; and thirdly, an attempt to commit it.It is to be noted that the essential elements of Sec. 307 are as follows:  The act must be capable of causing death,^8  The existence of the intention of the offender to cause death.^9 For a conviction under this section it is not necessary that the accused shouldcomplete every stage in the actual offence, except the final action. It is enough if in the attempt he did an act towards the commission of the offence.^10 The pre-requisite of an act to be capable of causing death will be dealt with in the first part of this issue while the intention of causing death willbe dealt with in the subsequent part. 2.1 The act must be capable of causing death: It is humbly submitted before this Hon’ble court that the act of Deven was incapable of causing death. To justify a conviction under Sec 307 BPC, it is necessary that bodily injury capable of causing death should have been inflicted.^11 In the case of Jodha v. St.of Rajasthan^12 , the court ruled that in order for an offence to fall under the ambit of Sec 307, the injury has to be caused on a vital part of the body. (^8) St. of Maharastra v. Kashirao, (2003) 10 SCC 434 (^9) Jage Ram v. St. of Haryana, (2015) 11 SCC 366 (^10) Raghunath alias Ram Singh, (1940) 16 Luck 194 (^11) Hari Mohan Mandal v. St. of Jharkhand , (2004) 12 SCC 220 (^12) 1994 SCC OnLine Raj 161

If the accused intended that the natural consequence of his act should The court in determining the intention of murder observed, “as far as the part of proving his intention the nature of the wound, type of weapon used, can be taken into account.”^16 Referring the same to our case, the following observations can be made:  Nature of the wound: The wound was never caused because of the act of Deven. It was the consequence of the resistive action of Pooja. Deven, by holding the knife against Pooja’s neck, just exercised his right to private defence for protecting himself from the approaching mob. This act of Deven is justified under Sec. 106 BPC,wherein, he has the right to hurt an innocent person while exercising his right to private defence.  Type of weapon used: The injury was caused by a penknife, used to cut the fruits. The Court in Jitender v. State (NCTOf Delhi) observed that each and every knife cannot be said to be a "deadly weapon". Also in Sukhvinder Singh vs The State (Govt. Of NCT of Delhi) the Delhi High Court observed that “the knife which was a vegetable knife cannot be termed as 'a deadly weapon'.” Therefore, a penknife, used for cutting fruits cannot be considered to be a deadly weapon. 2.3 Act of Deven is justified under private defence: The act of Deven holding a knife against Poojs’s neck is justified in the exercise of Right to Private Defence given under general exceptions of the BPC. Section 106 of BPC states that “ If in the exercise of the right to private defence against anassault which reasonably causes the apprehension of death, the defender be so situated (^16) PranDutt v. U.P. (1983) 1 Crimes 286

that he cannot effectually exercise that right without risk of harm to an innocent person, his right to private defence extends to running of that risk .” Upon a plain reading of section 106 of BPC, it is clear that to plead a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.^4 This section removes an impediment in the right of private defence. The impediment is the doubt in the mind of the defender as to whether he is entitled to exercise his right even when there is a possibility of some innocent persons being harmed by his actions. The section says that in the case of an assault reasonably causing an apprehension of death, if the defender is faced with such a situation where there exists the risk of harm to an innocent person, there is no restriction on him to exercise his right of defence and he is entitled to run that risk. In other words, with the presence of innocent persons in situations where one is entitled to exercise his right of private defence, there is no curtailment in one’s right and he is entitled to use force even at the risk of causing harm to those innocent persons. The counsel would like to draw the attention of this Hon’ble court to the case of St.of Karnataka v. Madesha^17 , where the court examined that whether the right to private defence could be available to a person who caused the death of a man who had no role to play in the dispute. The court observed that the right to harm an innocent person in the exercise of the right to private defence is excusable under it. In the instant case, Deven had the right to exercise private defence and his action of putting a knife at Pooja’s neck is justified because he feared that the approaching crowd would beat him to death, creating an apprehension of being dead in his mind, thereby his act is covered (^17) (2007) 7 SCC 35

was cutting the throat of his wife, their son shot and killed his father. It was held that if the son had reasonable ground for believing and honestly believed that his act was necessary for the defence of his mother. The right of private defence cannot be dismissed summarily when raised.^19 It is a substantial and arguable point of law.^20 It is the right available against apprehended unlawful aggression.^2122 Ergo, the entire incident must be taken into consideration in a proper way.^23 As soon as a reasonable apprehension of danger arises, the right of private defence may be exercised.^24 There must be an apprehension of any physical violence^25 from the opponent’s side and it should be of causing grievous hurt^26 or death. 27 On the facts and circumstances and the objective test, the court should decide whether the situation was likely to cause such apprehension of death or grievous hurt or not.^28 The accused is not even needed to prove beyond reasonable doubt that his act was of private defence^29 , since making out a prima facie case would suffice. Also, the requirement to bring up the shreds of evidences will not be needed if the facts and circumstances of the case themselves prove that the situation was likely to reasonably cause apprehension of death or hurt.^30 It can be believed that he has already proved by showing a preponderance of probabilities towards his plea.^31 Therefore, he is likely to be acquitted if after considering the pieces of evidence, including the evidence given to support the plea, a reasonable doubt is created in the mind of the court in relation to the guilt of the accused.^32 (^19) Scaria @ Thankan v. State of Kerala AIR 1955 SC 2342, (^20) DuyanuHariba Mail v State of Maharashtra (1970) 3 SCC 7, (^21) Deo Narain v State of Uttar Pradesh AIR 1973 SC 473, (^22) Kulwant Singh v State of Punjab (2004) 9 SCC 257, (^23) Raj Pal v State of Haryana (2006) 9 SCC 678, (^24) Mohd Khalid v. State of West Bengal, (2002) 7 SCC 334, (^25) Kulwant Singh v State of Punjab (2004) 9 SCC 257, (^26) Arjun v State of Maharashtra (2012) 5 Scale 52, AIR2012 SC 2181, (^27) State of Uttar Pradesh v Gajey Singh (2009) 11 SCC 414; Darshan Singh v State of Punjab AIR 2010 SC 1212 (^28) State of Uttar Pradesh v. Chatur Singh (2005) 13 SCC 360, (^29) Dharminder v. State of Himachal Pradesh (2002) 7 SCC 488, (^30) Thakur Mahato v. State of Bihar, (1972) Cr Lj 835 (Pat), (^31) Gurmit Singh v State of Punjab (2001) 9 SCC 681; (^32) Partap v State of Uttar Pradesh AIR 1976 SC 966; Buta Singh v State of Punjab (1991) 2 SCC 612,

The right of private defence is available to one who is suddenly confronted with the necessity of averting an impending danger, not of his creation and the necessity can be real or apparent.^33 Therefore, the counsel contends that Jeyant acted in good faith, to prevent any harm that could have been done to his friend Pooja. The mens rea or the criminal intention is absent and the actus rea is probably an outcome of acting in good faith. Thus, it can be concluded that the act of throwing a stone at Deven was an excusable homicide u/s 97 r/w 81 of BPC. 3.2 Act of Raining fresh blows: As a consequence of provocation The counsel submits that the act of raining fresh set of blows by Jeyant was an outcome of the grave and sudden provocation. After Deven slits Pooja’s throat, Jeyant was provoked and in sudden rage, he used criminal force against Deven. As Jeyant was a good friend of Pooja and also liked her, it would be obvious that any person committing an offence against Pooja would provoke him. The act of Deven slitting Pooja’s throat provoked Jeyant and in a sudden rage, he used criminal force against Deven. Sec 325 makes provocation an excusable ground for causing grievous hurt. Also, Sec 355 makes every criminal force, used to dishonour a person under the influence of sudden and grave provocation, an excusable homicide. Therefore, it is humbly submitted that the act of raining fresh blows as a result of provocation on Deven by Jeyant is not an offence u/s 325 and 355. “Provocation is some act or series of acts done by the dead man to the accused which would cause in any reasonable person and actually causes in the accused a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment not master of his mind”.^34 It is the defence used when criminal liability arises due to (^33) LaxmanSahu v state of Orissa AIR 1988 SC 83, (1986) Supp SCC 555. (^34) R v. Duffy, (1949) 1 All ER 932