NATIONAL VIRTUAL MOOTTEAM

COURTCODE: LI- NVMCC - 35

COMPETITION 2020

NATIONAL VIRTUAL MOOT COURT

COMPETITION, 2020
BEFORE THE HON’BLE HIGH COURT OF ALLAHABAD

THE CASE FILED UNDER SECTION 374(2) OF THE

CRIMINAL PROCEDURE CODE, 1973

IN THE MATTER OF

PHOOLCHAND TRIPATHI & ANR. …(APPELLANTS)

v.

STATE OF UTTAR PRADESH ……. (RESPONDANT)

MEMORIAL ON BEHALF OF THE APPELLANTS

DRAWN AND FILED BY THE COUNSELS FOR THE

APPELLANTS

NATIONAL VIRTUAL MOOT COURT COMPETTITION,

2020

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

TABLE OF CONTENTS

Sr. TITLE PAGE- No.

No.

1 LIST OF ABBREVIATIONS 3

2 INDEX OF AUTHORITIES 4-7

3 STATEMENT OF JURISDICTION 8

4 STATEMENT OF FACTS 9

5 STATEMENT OF CHARGES 9

6 ISSUES RAISED 10

7 SUMMARY OF PLEADINGS 11

8 ARGUMENT ADVANCED 12 -29

1. WHETHER THE HIGH COURT OF ALLAHABAD

HAS THE JURISDICTION TO TRY THE INSTANT
MATTER?
2. WHETHER THE ACCUSED A1 AND A2 ARE GUILTY
UNDER SECTION 8(c) AND SECTION 18(c) OF NDPS
ACT?
3. WHETHER THE ACCUSED PHOOLCHAND
TRIPATHI IS GUILTY FOR MURDER UNDER
SEC.302 & 307 OF IPC?

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

9 PRAYER 30

LIST OF ABBREVATION

& And

¶ Paragraph

v. Versus

Ors. Others

Govt. Government

Hon’ble Honorable

W.B. West Bengal

T.N. Tamil Nadu

U.P. Uttar Pradesh

PAT. Patna

UOI Union of India

S. Section

IPC Indiana Penal Code

Ltd. Limited

AIR All India Reporter

S.C. Supreme Court

SCC Supreme Court Cases

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

LJ Learned Justice

Cr. LJ Criminal Law Journal

INDEX OF AUTHORITIES

LEGISLATION
SR. NO. TITLE OF LEGISLATION

1 Code of Criminal Procedure

2 Indian Penal Code

3 Indian Evidence Act

4 NDPS Act

BOOKS REFERRED

SR NO. NAME OF AUTHOR BOOK EDITION

1 K D GAUR Indian Criminal Law 8th Edition

cases & material

2 Ratanlal & Dhirajlal The Law of Evidence 24th Edition

3 Ratanlal & Dhirajlal The Code of Criminal 21th Edition

Procedure

4 Ratanlal & Dhirajlal The Indian Penal 35th Edition

Code

5 LexisNexis Criminal Manual 2nd edition

6 P.S Pillai` The Indian Penal 21st Edition
Code

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

JOURNALS

SR NO. JOURNAL

1 AIR (ALL INDIA REPORT)

2 SCC (SUPREME COURT CASES)

LEGAL SITES

SR NO. WEBLINK

1 [Link]

2 [Link]

3 [Link]

4 [Link]

5 [Link]

JUDICIAL-DECISIONS REFERRED: -
Sr. CASES CITATION
No.

1 Makhan Singh v. State of Haryana Cr. A No. - 682 of 2015

2 Basdev v State of Pepsu 1956 AIR 488, 1956 SCR 363

3 Woodington v. DPP [1935]

4 Mancini v. DPP AC}; Chan kaun v. R [1942]; [1955]

5 Kartar Singh vs State of Punjab [1954] S.C.R. 145

6 Director of Enforcement v. AIR 1996 SC

[Link] Pvt. Ltd

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

7 R v. Tolson (1889) 23 QBD 168

8 Abdul Sattar Ahmed Pagarkar vs. R.H. 2003 Cr.L.J. J 3790

Mendsonsa, Commissioner of Police

9 . R. Balakrishna Pillai vs State of Kerala Criminal Appeal No. 372 of 2001

10 B v D.P.P. [2000] 2 AC 428.

11 Jakeman [1983] Crim LR 104

12 Queen Empress v Khandu Valad (1890) ILR 15 Bom 194; Shorty [1950]
SR 280

13 Mohinder Singh v. State AIR 1953 SC 415

14 Dartar singh v. state AIR 1974 SC 1193.

15 Abdul wahab abdulmajid Balach V. State , (2009) 11 SCC 625: (2009) 2 Guj LR
of Gujarat 1426

16 subhash Oraon v. State of Bihar 2005 CrLJ NOC 261

17 Mohan Singh v. State of M.P.,); Hardev 1999 (1) Crimes 27 (SC); , (1997)1 SCC
Singh v. Harbhej Singh 80

18 Mohar Singh v. State of Punjab, AIR 1981 SC 1578

19 Ram Kumar v. State of Rajasthan, AIR 1970 Raj 60

20 Shankar Narayan Bhadolkar v State of AIR 2004 SC 1966, (2005) 9 SCC 187
Maharashtra

21 KM Nanavati v State of Maharashtra; AIR 1962 SC 605; AIR 1964 SC 1563;

Dahyabhai Chhaganbhai Thakkar v State AIR 1975 SC 1478.
of Gujarat; State of Gujarat v Bai Fatima

22 Harbhajan Singh v State of Punjab and AIR 1966 SC 97: Gujarat AIR 1997 SC
Bhupendrasinh a Chudasama v State of 3790.

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

23 Munshi Ram v Delhi Administration; AIR 1968 SC 702: (1970) Cr LJ

Venketa Siva v State of Andhra Pradesh; 1004(SC), (1970) 1 SCC 235; AIR 1975
State of Gujarat v Bai Fatima State of SC 1478; AIR 1977 SC 226; 1978) Cr LJ
Uttar Pradesh v Md Musheer Khan; State 262(SC); (1982) Cr LJ 400(Gau);
of Gujarat v Ghenu (; State of Assam v (1986) 2 Crimes 338(Del); 2002) 9 SCC
Abinash; Jaspal Singh v State (Delhi 494; (2003) 2 SCC 661; (2003) 7 SCC
Administration) Moti Singh v State of 441, AIR 2003 SC 3716 1 (1993) 3 SCC
Maharashtra (Rizan v State of 54 [LNIND 1993 SC 276]: 1993 Cr LJ
Chattisgarh Sukhdev Singh v Delhi State 2888
(Govt of NCT of Delhi)

24 1Patreswar Basumatary v State of 1989 Cr LJ 196 (Gau)

Assam,

25 Raja Ram, see also Khora Ghasi, 1977 Cr LJ NOC 85 (All);

26 Kuttappan v State of Kerala, 1986 Cr LJ 271 (Ker).

27 Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992]:

[LNIND 2008 SC 1992]

29 State of Maharashtra v Govind Mhatarba 2010 Cr LJ 3586 (Bom).

Shinde,

30 Basau Ram Alias Om Nath v State of 2006 Indlaw PNH 609; p 3.

Haryana.

31 Henry Chumaoffor vs. The State of (16.09.2020 - KERHC) :

Kerala MANU/KE/2658/2020

32 Manjit Singh@Raju v. State of Punjab, Cr. A. No. 1902 of 2009

33 Satpal vs State of Haryana And Another Crl. Misc. No. A-927-MA of 2011

34 Makhan Singh v State of Haryana, Cr. App. No. 682 of 2015

35 Raja Alias Raj Singh Alias ... vs The State Crl. Appeal No.2575-SB of 2007
of Haryana

36 Harnek Singh vs State of Rajasthan 1998 CriLJ 299

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

37 Puran Ram vs State CR. A. HC. RJ No. 161/2016

38 State Of J&K; vs Raj Kumar And Ors HC. J&K CRAA No. 67/2017 20
November, 2017

39 Girish Saikia v State of Assam 1993 CriLJ 3808

40 Kunwar pal vs. state of Uttarakhand Cr A. NO. 1643 OF 2013

41 Bhagwan Singh vs The State of (Crl.) No. 656 OF 2018

Uttarakhand

42 Gurmail Singh And Ors. vs State of AIR 1982 SC 1466, 1982 CriLJ 1946,
Punjab 1982 (1) SCALE 708, (1982) 3 SCC 185

43 Thangaiya vs State of Tamil Nadu 2005 CriLJ 684, JT 2004 (10) SC 421

STATEMENT OF JURISDICTION

The Appellant humbly approaches & respectfully submits that this Hon’ble High Court have
the requisite subject matter Jurisdiction to entertain & adjudicate this matter under 374(2) of
the Code of Criminal Procedure, 1973, which reads as follows:

Section 374: Appeals from convictions.

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other Court in which a sentence of imprisonment for more than
seven years 2 has been passed against him or against any other person convicted at the
same trial], may appeal to the High Court.

(3) Save as otherwise provided in sub- section (2), any person, -

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court of Session.

The Appellant humbly submits to the jurisdiction of this Hon’ble Court.

STATEMENT OF FACTS

¶ ‘Phoolchand Tripathi’ was tried for charges u/s 302 and 307 of the Indian Penal Code, 1860
(“IPC”) for shooting Laxman Pandit on his marriage celebration with a licensed short gun.
Phoolchand and ‘Subodh Mishra’ were also convicted u/s 8 (c) r/w 18(c) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (“NDPS”) where the contravention involved a
commercial quantity of poppy recovered from their vehicle.

FINDINGS OF THE TRIAL COURT.

¶ The Ld. Sessions Judge after considering all the material on record convicted Phoolchand
Tripathi Accused No. 1 for murdering Laxman Pandit. He was sentenced to undergo ten years
of rigorous imprisonment (u/s 302 and 307 IPC); ten years of rigorous imprisonment [u/s 18(c)
NDPS] and a fine of rupees one lakh. Subodh Mishra was convicted and sentenced to rigorous
imprisonment for ten years with a fine of rupees one lakh [u/s 18(c) NDPS].

¶ Aggrieved by the said decision, Appeal is preferred by both Phoolchand Tripathi and Subodh
Mishra before the Hon’ble Allahabad High Court. The Appellants pleaded that the court has
failed to correctly appreciate the factual matrix where the Prosecution has unreservedly failed

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

to prove the offences against them. Phoolchand’s primary contention was that he had no
intention to cause Laxman’s death. The firing was accidental, unintentional and a mere
celebratory firing. The occurrence was admitted and the plea taken was that it being a case of
negligence, Section 302 and 307 were not attracted. The Appellants further pleaded that there
was a faulty investigation and the mandatory provisions of the NDPS Act, so far as search and
seizure are concerned, do not stand the scrutiny of law.

STATEMENT OF CHARGES

The accused Mr. Phoolchand Tripathi has been charged and convicted for the following
• Murder under Sec. 302 of Indiana Penal Code
• Attempt to Murder Section 307 of Indiana Penal Code
• Possession of Poppy in the Jeep under Sec.8(c) and Sec 18(c) of NDPS Act

The accused Mr. Subodh Mishra has been charged and convicted for the following
• Possession of Poppy in the Jeep under Sec.8(c) and Sec 18(c) of NDPS Act

10

MEMORIAL ON THE BEHALF OF APPELLANT

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

ISSUE RAISED

1. WHETHER THE HIGH COURT OF ALLAHABAD HAS THE JURISDICTION TO

TRY THE INSTANT MATTER?

4. WHETHER THE ACCUSED A1 AND A2 ARE GUILTY UNDER SECTION 8(c)

AND SECTION 18(c) OF NDPS ACT?

2. WHETHER THE ACCUSED PHOOLCHAND TRIPATHI IS GUILTY FOR

MURDER UNDER SEC.302 & 307 OF IPC?

MEMORIAL ON THE BEHALF OF APPELLANT Page 11 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

SUMMARY OF ARGUMENTS

1. WHETHER THE HIGH COURT OF ALLAHABAD HAS THE JURISDICTION TO

TRY THE INSTANT MATTER?

¶ It is humbly submitted before the Hon’ble Court that the jurisdiction is maintainable under
section 374(2) CrPC as the act was committed within the local jurisdiction of Allahabad. The
Appeal is maintainable as the Trial Court has not erred in considering the evidences, resulting
in conviction of the appellants. Therefore, the appeal is maintainable in the present case before
the High Court of Allahabad.

2. WHETHER THE ACCUSED A1 AND A2 ARE GUILTY UNDER SECTION 8(c) AND
SECTION 18(c) OF NDPS ACT?

¶ It is humbly submitted that the accused should not be charged under section 8(c) and section
18(c) NDPS Act. section 8(c) makes it very clear that nothing in this section shall apply to the
export of poppy straw, and as the bags recovered by the police were poppy strew, they cannot
be held guilty under this section. In the present case the prosecution never proved that the
unregistered vehicle belongs to the accused from which the two bags of poppy were recovered.
Therefore, the trial court erred in declaring accused A1 and A2 guilty under NDPS Act.

3. WHETHER THE ACCUSED PHOOLCHAND TRIPATHI IS GUILTY FOR MURDER

UNDER SEC.302 & 307 OF IPC?

¶ It is humbly submitted before the Hon’ble High Court that the accused is not liable for the
offence of murder under section 302, IPC. To prove the charge under this section firstly, the
commission of the offence by the accused has to be established and then the guilty intention
behind the act has to be proved beyond reasonable doubt. In the absence of Actus reus, or
resulted in the injury, or Mens rea, to cause the injury, the accused cannot be held guilty of
murder of the deceased.

MEMORIAL ON THE BEHALF OF APPELLANT Page 12 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

ARGUMENTS ADVANCED

ISSUE-I WHETHER THE HIGH COURT OF ALLAHABAD HAS THE JURISDICTION

TO TRY THIS INSTANT MATTER?

¶ It is Humbly Submitted before the Hon’ble High Court of Allahabad that the Court has
Jurisdiction to try the case in this instant matter. The Jurisdiction is maintainable & can be
established with the help of mainly on 2 grounds, (1) the accused were wrongly charged under
the following imprisonment (2) the facts were not examined Properly in the case. (3) they were
imprisoned for more than 7 years RI. In accordance with the sec. 374(2) of CrPC

¶ It is humbly submitted that as a general rule every offence must be inquired and tried by the
court within whose local jurisdiction it was committed.

¶ Where several persons have been convicted in a single trial by a Sessions Judge or by the
Additional Sessions Judge, all of them can file a joint appeal in the High Court and it is not
necessary for them to file separate appeals.1

¶ Therefore, it in the present case the accused(A1) has approached the High court because he
was wrongly convicted & sentenced under Sec302 of IPC and Sec 8(c) & 18(c)of NDPS Act,
& the accused(A2) has approached the High court because he was wrongly convicted &
sentenced under Sec8(c) & 18 (c) of NDPS Act, as the prosecution in the case has not been
able to prove the Murder beyond the reasonable doubt and they failed to complete the chain of
circumstantial evidence in the present case.

¶ Re-appreciation of evidence by the appellate Court is essential. It cannot proceed to dispose

of the appeal upon appraisal of evidence by the trial Court alone, particularly when the appeal
has been already admitted and placed for final hearing. Disposal of a criminal appeal in
contravention of the procedure, if permitted, held, would amount to negation of valuable right
of appeal of an accused. Since the High Court had disposed of the appeal without reappraising
the evidence independently, the matter was remitted to it for disposal afresh.

1
Ibid.

MEMORIAL ON THE BEHALF OF APPELLANT Page 13 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

ISSUE 2: WHETHER THE ACCUSED IS GUILTY UNDER SECTION 8(c) AND 18(c)
OF NDPS ACT?

¶ It is most humbly submitted that the accused should not be charged under section 8(c) and
section 18(c).

¶ Firstly section 8(c) makes it very clear that nothing in this section shall apply to the export
of poppy straw, and as the bags recovered by the police could have been poppy strew, they
cannot be held guilty under this section. The prosecution in the trial court has failed to prove
whether it was opium poppy or poppy strew it is the duty of prosecution to present the evidence
and the report in a clear and conclusive manner whether it was opium poppy or poppy strew ,
therefore this negligent and misconduct committed by the investigation officer (sub inspector)
cannot make both the accused guilty under section 8(c) and 18(c).

¶ Secondly, it was recovered from an unregistered vehicle so Physical and Conscious

possession, has been was not been established and the prosecution failed to prove so in the trial
court.

¶ Thirdly, The FNL reports confirm that the samples contained was poppy. But doesn’t specify
that what type of poppy it was, it’s not specified that the samples were opium poppy, therefore
the accused cannot be charged under section 8(c) and section 18(c).

¶ Fourthly, the trial Court has failed to examine certain important facts of the case. There was
nonapplication of mind with regard to the judgment and hence it is the responsibility of the
High Court to examine.

¶ Thar Jeep never belonged to the accused persons and the same has not been proven by the
Prosecution. Additionally, there is a non-compliance with the stringent provisions of the NDPS
Act so far as search, seizure and recovery is concerned. Also, the lack of civil witnesses during
the course of investigation despite them being available on the spot during the procession

MEMORIAL ON THE BEHALF OF APPELLANT Page 14 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

implies existence of insufficient evidence to prove that the contrabands belong to the accused
persons. That both the accused were falsely implicated by the police.

¶ Justice Virender Singh in a case observed that, “The provisions of the Act are very stringent
and the minimum sentence provided is imprisonment for ten years and a fine of Rs.1,00,000/
.Therefore, before the conviction is recorded, the prosecution should not leave any room for
doubt at least on vital aspects and one of them is certainly that there should not be any chance
of tampering with the case property at any stage. If the court finds that the prosecution is unable
to prove the link evidence beyond doubt, the benefit has to be extended to the accused
irrespective of the quantity of the contraband. I am appreciating the case in hand on that aspect
on the basis of the evidence on record”2.

NON-COMPLIANCE OF NDPS

¶ There were various procedural flaws in search, seizure and arrest as per prescribed statues
with reference to NDPS Act. The mandatory provision section 42 (2) of NDPS Act has not
been followed which states, where an officer takes down any information in writing under
subsection (1) or records grounds for his belief under the proviso thereto, he shall within
seventytwo hours send a copy thereof to his immediate official superior. section 42(2) refers to
an authorized officer who takes down the information and then mandatory provision under
section 42(2) applies, obliging him to inform his superior officer within 72 hrs. by forwarding
a copy of it to the official superior. It is also pertinent to be noted.3

¶ It was held by R. Banumathi, J. Since in the cases of NDPS Act the punishment is severe,
therefore strict proof is required for proving the search, seizure and the recovery. The
conviction of the appellant and the sentence imposed on him is set aside and this appeal is
allowed. Fine amount of Rs.1, 00,000/-, if paid, is ordered to be refunded to the appellant. The
appellant is ordered to be set at liberty forthwith unless required in any other case.”4

2
Basau Ram Alias Om Nath v State of Haryana, 2006 Ind law PNH 609; p 3.
3
Henry Chumaoffor vs. The State of Kerala (- 16.09.2020- KERHC): MANU/KE/2658/2020
4
Ibid.

MEMORIAL ON THE BEHALF OF APPELLANT Page 15 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

¶ It was held in Satpal @ Pala v State of Haryana5, “Perusal of the prosecution evidence shows
that there are certain loop holes which have not been plugged. Trial Court has convicted the
appellant on the testimony of police officials. There must be some independent corroboration
as far as possible”

¶ The present case, when observed very carefully is very similar to the facts and circumstance
in the case of Makhan Singh v. State of Haryana6. It was contended in the case that,

“Challenging his conviction, the appellant has approached this Court with a contention that he
has been falsely implicated in the case and that he was brought from his house and was put
behind the bars. Learned counsel for the appellant contended that the case of the prosecution is
based solely on the testimony of official witnesses PW2 and PW6 and much weightage ought
not to have been attached to their testimony, especially by discarding the testimony of both the
defence witnesses. It was submitted that since both the independent witnesses did not support
the prosecution story, the prosecution has not proved its case beyond reasonable doubt and this
material aspect has been ignored by the courts below. Appellant also alleges that
noncompliance of mandatory provisions under Sections 50 and 52 of the NDPS Act vitiates the
alleged recovery of contraband.”6

¶ In a case It was submitted by the Counsel for the appellant, that the appellant, was not found
in conscious possession of the poppy straw, aforesaid. As stated by Kanwaljeet Singh, ASI, he
did not investigate into the matter as to whether the accused was the owner of any outhouse
(Dhani) or fields in village Tirlokeywala. It, therefore, could not be said that he was in
conscious possession of the contraband, aforesaid. The submission of the Counsel for the
appellant, to the effect, that the accused was not found in conscious possession of the bags,
containing poppy straw, carries substance, and is accepted.7

¶ In a case where the prosecution has failed to establish by cogent and consistent link evidence
that the samples were kept intact and sealed and there was no possibility to tamper with the

5
Satpal vs State of Haryana And Another. Crl. Misc. No. A-927-MA of 2011 6
Makhan Singh v State of Haryana, Cr. App. No. 682 of 2015.
6
7 Ibid.
7
Raja Alias Raj Singh Alias .vs The State of Haryana Crl. Appeal No.2575-SB of 2007 9
Harnek Singh vs State of Rajasthan 1998 CriLJ 299

MEMORIAL ON THE BEHALF OF APPELLANT Page 16 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

seals till the samples were sent to Forensic Science Laboratory. I agree with the learned counsel
for the appellant that the Forensic Science Laboratory Report Ex. P-21 loses its evidentiary
value and it will be unsafe to hold the conviction of the appellant on the basis of this report. It
has not been proved that the alleged article recovered from the appellant was contraband poppy
straw and the appellant deserves to be acquitted of the charge levelled against him.9

¶ Upon conclusion of the trial, the learned trial Judge proceeded to hold that the prosecution
did not lead sufficient evidence to prove that the appellant was present in the car when the
seizure was affected. The car which was being used to transport the contraband poppy straw
was owned by the appellant. Thus, the appellant was acquitted of the charge under Section 8/15
of the NDPS Act by extending him the benefit of doubt. However, the appellant was held to be
the owner of the offending vehicle and while raising the presumption under Section 35 read
with Section 54 of the NDPS Act, the learned trial court convicted and sentenced him as above
for the offence under Section 8/25 of the NDPS Act. Hence, this appeal.8

¶ The sealed parcels were allegedly taken to the Executive Magistrate on 05.11.2014, who is
said to have re-sealed the same on that date. Thereafter, the samples are said to have been sent
to the Forensic Science Laboratory, Jammu, on 07.11.2014.

¶ The report of the Forensic Science Laboratory, which was marked as exhibit P-11, indicated
the presence of Morphine. The samples were identified as poppy straw.

¶ The respondents have been acquitted by the trial Court, primarily, on the ground that the
prosecution has not been able to establish beyond reasonable doubt that the samples, which
were allegedly taken on 02.11.2014 were the very same which were produced and tested by the
Forensic Science Laboratory.9

¶ Therefore, in light of the arguments raised the counsel for the appellant humbly submits to
this Hon’ble court that the Accused (A1 and A2) should be acquitted of the charges under 8(c)
&18(c) of NDPS Act.

8
Puran Ram vs State on 25 June, 2019
9
State Of J&K; vs Raj Kumar And Ors HC. J&K CRAA No. 67/2017

MEMORIAL ON THE BEHALF OF APPELLANT Page 17 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

10

ISSUE-3: WHETHER THE ACCUSED MR. PHOOLCHAND TRIPATHI IS GUILTY

OF MURDER U/S 302 & 307 OF INDIANA PENAL CODE?

¶ The edifice of the judicial system in Indiana rests on the principle, ‘it is better & more
satisfactory to acquit a thousand guilty than to condemn a single innocent’. This sacred
principle is unimpeachably embedded in the criminal laws of Indiana so that the rule in its
sublime semantics does not become a hope of & losing it righteous meaning & moral
quintessence, causing a miscarriage of justice. The Counsel of Appellant humbly submits
before the Hon’ble Court that the accused A1 is not guilty of murder.

¶ The respondent argues that the accused A1 should be convicted under Sec. 302 of the IPC,
alleging them to be guilty of murder of the deceased. The allegations, however, do not meet the
requirements of law, as the essential requisites to prove the charge are absent.

¶ The offence of murder requires both actus reus as well as mens rea.12 In the case of murder
mens rea is to be established by proving intention and not mere knowledge of the consequences,
the absence of such clear intention & mens rea, it would be miscarriage of justice to convict
the accused for the offence of murder.

10
J. Horder, ‘On the Irrelevance of Motive in Criminal Law’, Oxford Essays in Jurisprudence, 2000, p. 79. 13

Id p.43

MEMORIAL ON THE BEHALF OF APPELLANT Page 18 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

3.1. ACTUS REUS

¶ The physical element of the crime that is the event, behaviors or state of affairs connected to
the crime is called the actus reus of the crime. A person can only be held guilty of murder if it
is absolutely clear that he killed the victim. He must be acquitted if there is reasonable
possibility that the killing was accidental13. It was laid down in Woolmigton 11 , overruling
earlier authorities that the defendant must satisfy the court that defendant’s story is true, if the
court thinks that it might reasonably be true. They should convict only if satisfied beyond
reasonable doubt that it is not true. This rule is of general application.12

¶ The primary step to establish murder is proving actus reus & showing that there must be a
relation between the act done by the accused & the offence.13Actus reus is defined to mean a
guilty act or a wrongful deed that comprises the physical components of a crime. To establish

actus reus, it has to be show that the act committed by accused is the one resulting in the death
of the person.

¶ The accused, A1 were hanging out as usually with their friends. All of them being the college
friends wanted to enjoy the celebration of their friend’s wedding. A1 fired shots in the air in
the good sense to celebrate their friend through a celebratory firing. The shots were fired in the
air & to ensure that none of the bullets hit anyone. This act of firing by the Accused was not
done intentionally as he was heavily intoxicated and there is no proof from the prosecution
which states that the bullet fired by the accused and the bullet found from the deceased are from
the same gun. Therefore, it cannot be said that A1 has committed the murder of the deceased.
The shots were fired in the air & with the intention to celebrate the wedding of their friend.

¶ The actus reus of murder comprises the elements of conduct, circumstances in which the
conduct takes place & the result i.e. the consequence of the conduct.

¶ It is possible for courts to dispense with mens rea i.e. the mental element of crime in whole
or in part, but they can never dispense with actus reus14. There are no ‘thought crimes’ i.e.
crimes without actus reus.15 If the actus reus of a crime does not exist or occur, the crime is not

11
Woodington v. DPP [1935]
12
Mancini v. DPP [1942] AC}; Chan kaun v. R [1955]
13
SK Sarvaria, Indian Penal Code, ed.10th , (Lexis Nexis Butterworths Wadhwa, Nagpur, 2008), p. 2667.
14
Smith &Hogan, supra note 1, p.44
15
R.A Duff, Philosophy &the Criminal Law (1998)

MEMORIAL ON THE BEHALF OF APPELLANT Page 19 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

committed.16 Hence, the respondent has failed to prove the actus reus in this case and therefore
the accused should be acquitted.

3.1.1 THE ACCUSED DIDN’T HAVE THE REQUISITE MENS REA TO COMMIT THE
CRIME

¶ One essential element of murder is the presence of mens rea. It is humbly submitted to this
Hon’ble court that the appellant in the pertinent case is being accused of being guilty for
murdering the deceased (Laxman Pandit). It is important to consider for this Hon’ble court that
a murder should accompany some sort of mens rea.

¶ In the case of Kartar Singh vs State of Punjab17 it is stated that

“The act alone does not amount to guilt; it must be accompanied by a mind”. convict a person
of murder, it is essential to prove that the accused had the required mens rea to commit the

offence. The Apex Court in the case of Director of Enforcement v. [Link] Pvt.
Ltd 18 observed thus: "Mens rea" is a state of mind. Under the criminal law, mens rea is
considered as the "guilty intention" & unless it is found that the accused had the guilty intention
to commit the crime, he cannot be held guilty of committing the crime."

¶ In the case of R v. Tolson19 it is stated that

"The act itself does not constitute guilt unless done with a guilty intent."

¶ The A1 1}, did not fire towards the deceased sitting on the horse 2}, The accused were not
having the requisite guilty intention to cause hurt. The shots fired by the accused were towards
the air with the intent to celebrate the wedding of their friend.

¶ In the case of Capt. Abdul Sattar Ahmed Pagarkar vs. R.H. Mendsonsa, Commissioner of Police20

It stated that the intention behind the acts is to be understood. In the present case all the offences
which were in question needed existence of an intention to commit an offence with dishonesty.

16
Smith &Hogan. Supra note 1, p.50
17
Kartar Singh vs State of Punjab [1954] S.C.R. 145
18
Director of Enforcement v. [Link] Pvt. Ltd AIR 1996 SC
19
R v. Tolson (1889) 23 QBD 168
20
Abdul Sattar Ahmed Pagarkar vs. R.H. Mendsonsa, Commissioner of Police 2003 Cr.L.J. J 3790

MEMORIAL ON THE BEHALF OF APPELLANT Page 20 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

These have to be dishonest intention of causing wrongful loss to the person aggrieved &
wrongful gain to person who is to be the target of the investigation.

¶ Their intention was to just celebrate the wedding of their friend and there were not in a
situation or condition that they can directly aim towards Laxman as they were heavily
intoxicated. It is for this reason that shots were fired in the air. The accused did not have mens
rea to cause injury to anyone, including the deceased (Laxman Pandit), who was sitting on the
horse.

¶ It is humbly submitted before this hon’ble court that it is important to understand the intention
behind the act unless it is not understood the accused cannot to be considered guilty. The
accused cannot be held for murder when the prosecution fails to show mens rea on part of the
accused in causing the death of the persons.

¶ In the case of R. Balakrishna Pillai vs State of Kerala21 it was observed that

“Criminal guilt would attach to a man for violations of criminal law. However, the rule is not
absolute &is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens

sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally
accountable, it must be proved that an act, which is forbidden by law, has been caused by his
conduct, & that the conduct was accompanied by a legally blameworthy attitude of mind. Thus,
there are two components of every crime, a physical element & a mental element

¶ It is humbly submitted that the maxim 'actus non facit reum, nisi mens sit rea' forms the basis
for defining the two elements that must be proved before a person can be convicted of a crime,
the actus reus or 'guilty act' & mens rea or 'blameworthy mind'. In B v D.P.P.22

¶ The appellate court held that “Mens rea was an essential element of every criminal offence.”
Hence in this instant case the respondent has failed establish requisite Mens Rea to convict the
accused under sec 302 of IPC.

3.2 THERE IS NO COINCIDENCE OF ACTUS REUS & MENS REA.

21
R. Balakrishna Pillai vs State of Kerala Criminal Appeal No. 372 of 2001
22
B v D.P.P [2000] 2 AC 428.

MEMORIAL ON THE BEHALF OF APPELLANT Page 21 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

¶ Even if accused is said to have mens rea for the sake of argument, there is no coincidence of
actus reus & mens rea. It is mandatory that the mens rea must co-incide in point of time with
the act which causes the actus reus.23

¶ Mens rea implies an intention to do a present act, not a future act.24 It has been held in an
Queen Empress v Khandu Valad25 that if there were two acts & the first act, though accompanied
by mens rea was not the cause of death, whereas the second act, not accompanied by mens rea
was the cause of death, the defendant must be acquitted of murder.

¶ Here regardless of the fact of the accused fleeing the scene, at the time of commission of the
offence there wasn’t a coincidence of the Mens Rea with the Actus reus.

3.3. THE GENERAL DEFENCE AVAILABLE FOR THE ACCUSED IN THIS CASE

¶ Shankar Narayan Bhadolkar v State of Maharashtra 26Section 6, thus, mandates a court to

read every definition of an offence or penal provision including the illustrations appended
thereto subject to General Exceptions.

¶ Similarly, liability cannot be fixed on persons who would have committed an offence by
accident, under threat, by necessity or in private defence, in the same manner as a person who

has committed an offence with an evil intention or design. However, the Code itself has been
drafted upon the assumption that all exceptional and extenuating circumstances are absent. For
instance, there is a presumption that all persons are sane and are not acting under the influence
of alcohol. Such a presumption may be true of large number sections of the Code, but not
without exception. There are a significant number of persons who may be insane, suffering
from some mental illness, or alcoholics, who may fall outside the general presumption that
everybody is sane and sober

¶ The title 'General Exceptions' is, therefore, adopted to convey that these 'exceptions' are
available to accused of all offences.27

23
Jakeman [1983] Crim LR 104
24
Smith &Hogan, supra note 1, p.128
25
Queen Empress v Khandu Valad (1890) ILR 15 Bom 194; Shorty [1950] SR 280
26
Shankar Narayan Bhadolkar v State of Maharashtra AIR 2004 SC 1966, (2005) 9 SCC 187
27
Shankar Narayan Bhadolkar v State of Maharashtra AIR 2004 SC 1966, (2005) 9 SCC 187

MEMORIAL ON THE BEHALF OF APPELLANT Page 22 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

¶ Though, the burden of proof in respect of proving the existence of circumstances that might
bring the case within the exceptions provided in Ch IV of the Code is on the accused, the
standard of proof required is not the same to that of the prosecution. The standard of proof
required by the prosecution to prove guilt and the standard required by the defence to establish
that the case is within the exceptions; are different.

¶ As stated earlier, the prosecution has to prove all elements of the crime beyond reasonable
doubt and this burden on the prosecution never shifts.28

¶ After the prosecution has discharged this burden, and has established beyond reasonable
doubts that the accused is guilty of the crime, then it is open to the accused to adopt a defence
that his case falls under one or other of the general exceptions. If the accused takes such a
defence then it is for him to prove the same. He can prove this in two ways. One way is, of
course, to establish by positive and direct evidence that the exception pleaded by him existed.
The second method is to bring on record sufficient material, so as to cast a doubt on the story
of the prosecution and establish that there is reasonable possibility and probability that the
circumstances and the defence as stated by the accused existed. The benefit of such doubt
naturally goes to the accused. It displaces the initial presumption of non-existence of the
circumstances in his favor. He is, therefore, not required to prove beyond reasonable doubt that
his case falls under the relied-on exception.

¶ He discharges his burden of proof as soon as he proves the preponderance of probability of

the existence of the circumstance(s) bringing his case within the general exception(s)32

¶ However, it needs to be stressed here that the accused is not required to take up the plea
specifically that his case falls within any of the general exceptions. By virtue of s. 6 of the IPC,
there is no imperative duty or obligation on an accused to take up a specific plea that his case
falls under any of the general exceptions but a court is under duty to bear in mind that every
penal provision needs to be interpreted subject to the general exceptions. It imposes a statutory
duty on the court to consider as to whether the offence allegedly committed by an accused is

28
KM Nanavati v State of Maharashtra AIR 1962 SC 605; Dahyabhai Chhaganbhai Thakkar v State of Gujarat
AIR 1964 SC 1563; State of Gujarat v Bai Fatima AIR 1975 SC 1478.

MEMORIAL ON THE BEHALF OF APPELLANT Page 23 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

covered by any of the general exceptions or not even though he has not taken the plea
specifically33.

¶ But for framing a charge for an offence under the Penal Code, the traditional rule of existence
of mens rea is to be followed held in Radhey Shyam Khemka v State of Bihar34

3.3.1 HOW SECTION 80 PROTECTS ACCUSED IN THIS CASE

¶ Section 80 stipulates the absence of criminal intention as well as criminal knowledge.

¶ In Girish Saikia v State of Assam35,the accused was attacked by his brother in the night
when he was asleep. The brother attempted to strangulate and punch the accused. The two
brothers started scuffling and rolled out of the room. The accused got hold of a bamboo and
tried to strike his brother. But suddenly them father intervened and the bamboo blow aimed at
the brother accidentally fell on the head of the father. The father succumbed to the injuries and
died. The Guwahati High Court held that the accused had committed no offence as the case
was covered by (the exception in) s 80 and acquitted him.

¶ Where two brothers were sleeping together and one of them while in a state of semi-sleep felt
that somebody was throttling him, picked up the dao, kept on the head of the bed, and

32
Harbhajan Singh v State of Punjab AIR 1966 SC 97 and Bhupendrasinh A Chudasama v State of Gujarat AIR
1997 SC 3790.
33
Munshi Ram v Delhi Administration AIR 1968 SC 702; Venketa Siva v State of Andhra Pradesh (1970) Cr LJ
1004(SC), (1970) 1 SCC 235; State of Gujarat v Bai Fatima AIR 1975 SC 1478; State of Uttar Pradesh v Md
Musheer Khan AIR 1977 SC 226; State of Gujarat v Ghenu (1978) Cr LJ 262(SC) ; State of Assam v Abinash
(1982) Cr LJ 400(Gau) ; Jaspal Singh v State (Delhi Administration) (1986) 2 Crimes 338(Del) ; Moti Singh v
State of Maharashtra (2002) 9 SCC 494; Rizan v State of Chattisgarh (2003) 2 SCC 661; Sukhdev Singh v Delhi
State (Govt of NCT of Delhi) (2003) 7 SCC 441, AIR 2003 SC 3716
34
Radhey Shyam Khemka v State of Bihar (1993) 3 SCC 54 [LNIND 1993 SC 276]: 1993 Cr LJ 2888.
35
Girish Saikia v State of Assam 1993 CriLJ 3808
administered a blow which was received by his sleeping brother who died, there being neither
intention nor motive, the accused was let off under this section. His act was not voluntary.29

¶ Where the accused fired a shot at his assailant who escaped but four other persons were
injured and one of them unfortunately expired, it was held that the accused was not liable for

29
Patreswar Basumatary v State of Assam, 1989 Cr LJ 196 (Gau)

MEMORIAL ON THE BEHALF OF APPELLANT Page 24 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

the fatal injury to an innocent person as his case fell within the scope of section 80 read with
sections 96 and 100, IPC, 1860.30

¶ This is a case of Celebratory firing which unfortunately caused unintentional death of the
deceased. It is not culpable homicide because the appellant, while firing towards the sky, had
no knowledge that the act was likely to cause the death and neither had the intention to do so.
The counsel for the appellant alternatively submits that the appellant’s act at best would
constitute culpable homicide not amounting to murder, for the appellant can be said to have the
knowledge that his act was likely to cause death but he have no intention to cause death or
such bodily injury likely to cause death and reliance for this is being placed on the decision of
Kunwar pal vs. state of Uttarakhand.31

3.3.2 DISTINCTION BETWEEN LEGAL INSANITY AND MEDICAL INSANITY AND

ACCUSED IS COVERED UNDER THE DEFENCE OF LEGAL INSANITY.

¶ A distinction is to be made between legal insanity and medical insanity. A Court is always
concerned with legal insanity, and not with medical insanity. What sections 84, IPC, 1860
provides is defence of legal insanity as distinguished from medical insanity.39 A person is
legally insane when he is incapable of knowing the nature of the act or that what he was doing
was wrong or contrary to law. Incapacity of the person on account of insanity must be of the
nature which attracts the operation of section 84 IPC, 186032.

¶ An accused who seeks exoneration from liability of an act under section 84 of the IPC, 1860
is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not
been defined in the IPC, 1860 and it has mainly been treated as equivalent to insanity.

¶ Only legal insanity is contemplated under section 84 of IPC, 1860. 33 A distinction is to be

made between legal insanity and medical insanity. A Court is always concerned with legal

30
Raja Ram, 1977 Cr LJ NOC 85 (All); see also Khora Ghasi, 1978 Cr LJ 1305 (Ori) under
31
Kunwar pal vs. state of Uttarakhand Cr A no. 1643 of 2013 39
Kuttappan v State of Kerala, 1986 Cr LJ 271 (Ker).
32
Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992] : (2009) 1 SCC 124 [LNIND 2008 SC
1992]
33
State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).
42
Kuttappan v State of Kerala, 1986 Cr LJ 271 (Ker).

MEMORIAL ON THE BEHALF OF APPELLANT Page 25 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

insanity, and not with medical insanity. What sections 84, IPC, 1860 provides is defence of
legal insanity as distinguished from medical insanity. A person is legally insane when he is
incapable of knowing the nature of the act or that what he was doing was wrong or contrary to
law42.

¶ Incapacity of the person on account of insanity must be of the nature which attracts the
operation of section 84 IPC, 1860. An accused who seeks exoneration from liability of an act
under section 84 of the IPC, 1860 is to prove legal insanity and not medical insanity.

¶ It can be argued in this instant case that the accused was incapable of knowing the nature of
his act due to being heavily intoxicate.

3.4 IT WAS ACT OF EXCUSABLE HOMICIDE NOT AN INTENTIONAL MURDER

¶ Homicides are of two types: (1) lawful homicides, and (2) unlawful homicides. Lawful
homicides are those which are covered by 'Chapter IV: Of General Exceptions' of the IPC and
which, therefore, are not punishable.

¶ Lawful homicides, relying on the nature of 'general exception' that envelopes the homicide,
can further be classified into: (i) excusable homicides, and (ii) justifiable homicides. Thus, there
are three forms of homicide known to the IPC. They are: (i) excusable homicides, (ii) justifiable
homicides, and (iii) unlawful or criminal homicides (i.e. homicides that are neither excused nor
justified).

¶ There is no straight jacket formula on the basis of which the guilt of the accused is said to be
proved beyond reasonable doubt. Moreover, there is no way to determine objectively, the
reasonability of the doubt that the judge might have. So, it depends solely on the Judge to say
whether he is convinced by the arguments of the prosecution or that there still remains a degree
of reasonable doubt so as to impart the judgment in the favor of the defense.

¶ This follows from the cardinal principle that the accused is presumed to be innocent unless
proved to be guilty by the prosecution and the accused is entitled to the benefit of every
reasonable doubt.

MEMORIAL ON THE BEHALF OF APPELLANT Page 26 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

¶ Another golden thread that runs through the web of administration of criminal justice is that
if two views are possible on the evidence - one pointing to the guilt and other towards
innocence, the view which is favorable to the accused should be accepted.

¶ Thus, it is clear that the prosecution has to stand on its own legs and cannot take advantage
of the defense put forth by the accused even if he was found to be false or improbable.

¶ In criminal cases, the guilt should be proved beyond any reasonable doubt that a reasonable
man with ordinary prudence can have. There should be no doubt whether the accused is guilty
or not. If there is slightest doubt, no matter how small it is, the benefit will go the accused. In
Indian legal system the provision regarding Burden of Proof and how it is to be discharged are
grandeur laid down in Chapter VII of the Evidence Act, 1872. The rule is that whoever alleges
a fact must prove it. In a criminal trial it is the prosecution who alleges that the accused has
committed the offence with requisite mens-rea and so the burden lies upon the prosecution to
prove the same.

¶ The counsel humbly submits that the facts of Bhagwan Singh vs The State of Uttarakhand34
mirrors this case, in which the accused in the state of voluntary intoxication shoots celebratory
shots in the marriage procession which resulted in the injury and death of many people. The
high court modified the conviction of Sec302 IPC to Sec 304 IPC and Modified the charges of
307 IPC to 308 IPC. Due to absence of the intention to cause death or such bodily injury likely
to cause death. Further, Reliance was placed on the Decision of the court in Kunwar Pal vs.
State of Uttarakhand35.

¶ Both the terms 'intention' and 'knowledge' appear in s. 299 and 302, however, having different
consequences. Intention and knowledge are used as alternate ingredients to constitute the
offence of culpable homicide. However, intention and knowledge are two different things.

¶ The difference between the two came to be considered by the Supreme Court in Basdev v
State of Pepsu36, in this case, the accused was alleged to have shot a 16-year old boy in a
marriage feast after having got drunk. It was his defence that he was so drunk that he did not

34
Bhagwan Singh vs The State of Uttarakhand (Crl) No. 656 OF 2018
35
Kunwar Pal vs. State of Uttarakhand Cr A no. 1643 of 2013
36
Basdev v State of Pepsu451956 AIR 488, 1956 SCR 363

MEMORIAL ON THE BEHALF OF APPELLANT Page 27 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

have the knowledge or intention to kill the boy for what was a trifling incident. The court
differentiated between motive, intention and knowledge: Motive is something which prompts

a man to form an intention. Knowledge is an awareness of the consequences of the act. In many
cases, intention and knowledge merge into each other and mean the same thing more or less
and intention can be presumed from knowledge. The demarcating line between knowledge and
intention is no doubt thin, but it is not difficult to perceive that they connote different things. ¶
Intention or the mental element in committing the crime is an essential ingredient of culpable
homicide. While 'intention' is a very important element in all crimes, it becomes crucial in the
offence of culpable homicide, because it is the degree of intention of the accused, which
determines the degree of crime. In other words, it is the mental element of the accused alone,
which is material to decide whether a particular act is culpable homicide amounting to murder,
or culpable homicide not amounting to murder.

¶ But then, again intention is always a question of fact and the fact that the accused did not
intend to cause the injury he did, may be a mitigating factor. In Gurmail Singh v State of
Punjab 37, there was an argument between B and G on the one hand and the accused on the
other, over cracking of some indecent jokes by the accused before B's wife. The deceased
intervened to stop the two sides from fighting. The accused raised a barchha to give a blow to
A, which fell on the deceased. The Supreme Court held that the accused had no animosity
against the deceased, even if transmission of malice from G to the deceased can be inferred, in
view of the fact that there is no evidence to show that the accused intended to cause the injury
he inflicted, his conviction was converted from s. 302 to s. 304.

¶ First, there must be an intention to cause bodily harm. Secondly, there must be 'knowledge'
that death is the 'likely' result or consequence of such intended bodily injury.

¶ In Thangaiya v State of Tamil Nadu38, the Supreme Court categorically ruled that cl (4) of
s. 302 would be applicable where the knowledge of the offender as to the probability of death
of a person approximates to a practical certainty. Such knowledge on the part of the offender

37
Gurmail Singh v State of Punjab AIR 1982 SC 1466, 1982 CriLJ 1946, 1982 (1) SCALE 708, (1982) 3 SCC
185
38
Thangaiya v State of Tamil Nadu 2005 CriLJ 684, JT 2004 (10) SC 421, 2004 (10) SCALE 319, (2005) 9 SCC
650

MEMORIAL ON THE BEHALF OF APPELLANT Page 28 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

must be of the highest degree of probability. In this instant case that highest degree cannot be
established because of the accused state of intoxication.

¶ Clause (b) of s 299 and cl. 2 and 3 of s 302, both deal with intention to cause bodily injury as
is likely to cause death. As far as s 299(b) is concerned, it merely stipulates that if death is
caused by an act, with the intention of causing such bodily injury as is likely to cause death it

amounts to culpable homicide. Clause (2) of s 302 while stating that if an act is done with the
intention of causing such bodily injury which is likely to cause death, also further stipulates
that the intentional causing of bodily injury should be accompanied with the knowledge that
the bodily injury is likely to cause death. The word 'likely' used in s 299(b) means a mere
probability or possibility that the injury could result in death. But, the usage of the word 'likely'
in cl (2) of s 302 denotes, to an extent, certainty of death.

¶ Clause (c) of s 299 and cl 4 of s 302 deal with instances where the accused has knowledge
that the act is likely to cause death. Similar to the earlier clauses, here again, the requirement
of knowledge under s 302(4) is a very high degree of probability of death. This high degree of
probability of death is indicated in the latter part of the clause, wherein it is provided that the
act should be so imminently dangerous that in all probability it will cause death or such bodily
injury as is likely to cause death, and such act is done without any excuse for incurring the risk.
Both cl (c) of s 299 and cl (4) of 302 apply to cases where the accused has no intention to cause
death or bodily injury, but there is knowledge that the act is essentially a risky one. Whether
the act amounts to murder or culpable homicide depends upon the degree of risk to human life.
If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.39

¶ In a case before the Bombay High Court, the victim had received injuries, which were
described by the doctor as dangerous and were likely to cause death. The doctor did not state
that the injury was sufficient in the ordinary course of nature to cause death, which alone would
bring it within the purview of s 302, IPC. In view of this, the high court held that an offence
under s 307, IPC, was ruled out.40

39
Hari Singh Gour, Penal Law of India, vol 3, 11th edn, Law Publishers, Allahabad, 1998.
40
(2008) 11 SCC 360, (2008) Cr LJ 3196(SC)

MEMORIAL ON THE BEHALF OF APPELLANT Page 29 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

3.5. PROSECUTION HAS NEVER PROVED THAT THE OFFENCE COMMITTED

WAS BEYOND REASONABLE DOUBT

¶ The Prosecution is duty bound not only to bring home the charges against the accused but is
required prove it with such certainty & exactitude which would leave no scope for doubt of any
other inference other than that of the guilt of the accused. The prosecution must prove beyond
reasonable doubt not only the actus reus but the mens rea. The circumstance that the prosecution
was not able to connect A1 with the use of licensed gun and shot fired by him actually harmed
the deceased and there was a clear lack of civil witnesses in the case but it is

not yet established by the prosecution whether the gun used by accused is the same which
injured the deceased person.

¶ In a case of murder, where intention is one of the essential elements of the offence, it is always
necessary that there should be a definite finding as to whether the necessary guilt intention is
or is not present, & when it is reasonably doubtful upon the evidence of the prosecution whether
the intention is present, then the accused is entitled to the benefit of that reasonable doubt. The
circumstance, that there may be difficulty in establishing the requisite knowledge or intention,
by no means, discharges the prosecution from the burden of doing so. Thus, whenever a court
is called upon to arrive at the finding of the real intention of an accused, it should consider all
available circumstances & accept only that which can be arrived at beyond reasonable doubt.

3.4.4 THE ACCUSED IS ENTITLED TO GET THE BENEFIT OF DOUBT UNDER

SEC 3 OF INDIAN EVIDENCE ACT.

¶ The following remarks of the Hon’ble Supreme Court in the noted decision in a case the
prosecution has to prove its case against the accused beyond a reasonable doubt.

¶ The primary duty of the prosecution is to prove its case beyond all the reasonable doubt., and
it cannot be relieved of its duty be creating suspicion in the mind of court or by proving
suspicious circumstances against the accused in the case, because suspicion however grave,
cannot be taken to be sufficient for convicting the accused.41 In this case the details of the
incident were not completely collected by the prosecution. Benefit of doubt became

41
Dartar singh v. state AIR 1974 SC 1193.

MEMORIAL ON THE BEHALF OF APPELLANT Page 30 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

inevitable.42 In the present case, none of the eyewitnesses mentioned seeing A1 as the one firing
the bullets that hit the deceased, the prosecution evidence is insufficient in regard with the
medical and scientific evidence. 43. In order to warrant conviction, it would have to be proved
beyond doubt that A1 actions are guilty of punishment. In case of doubt, arising with regard to
any material fact in a criminal case, the accused is always entitled to benefit of such doubt. 44
In case of Subhash Oraon v. State of Bihar45 where the evidence of the eye – witnesses was
not found reliable and medical evidence did not support the prosecution case and prosecution

failed to prove the guilty of the accused beyond reasonable doubt then the accused should be
given the benefit of doubt.

¶ The essentials to be proved by the prosecution in order to establish the guilt of the accused,
is the commission of the offence, the specific intention to cause death or bodily injury.46 In this
instant case the counsel for the appellant would humbly like to submit that the respondent has
failed to establish a case without fallacies & has given room for reasonable doubt & hence, the
accused should be acquitted.

42
Abdukwahab abdulmajid Balach V. State of Gujarat, (2009) 11 SCC 625: (2009) 2 Guj LR 1426
43
Mohan Singh v. State of M.P., 1999 (1) Crimes 27 (SC); Hardev Singh v. Harbhej Singh, (1997)1 SCC 80
44
Mohar Singh v. State of Punjab, AIR 1981 SC 1578
45
Subhash Oraon v. State of Bihar 2005 CrLJ NOC 261
46
Ram Kumar v. State of Rajasthan, AIR 1970 Raj 60

MEMORIAL ON THE BEHALF OF APPELLANT Page 31 of 33

 NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

PRAYER

In the light of issues raised, arguments advanced and authorities cited may this Hon’ble court
be pleased to:

1. Allow the appeal

2. Set aside the conviction order passed by the trial court.

AND/OR

Pass any other order that it deems fit in the interest of justice, equity and good conscience.
For this, the appellant as in duty bound, shall humbly pray.

MEMORIAL ON THE BEHALF OF APPELLANT Page 32 of 33

NATIONAL VIRTUAL MOOT COURT COMPETITION
2020

S/d_____________

COUNSEL FOR THE APPELLANT

MEMORIAL ON THE BEHALF OF APPELLANT Page 33 of 33