2009

ARMY INSTITUTE OF LAW, MOHALI

CLASS MOOT 1, 2024

In The Session Court of Patiala

WRITTEN SUBMISSION ON BEHALF OF THE DEFENCE

State…………………………………………………….............Prosecution

v.

Manoj………………………………………………………………Defence

MEMORANDUM ON BEHALF OF THE DEFENCE DRAWN AND FILED BY

THE COUNSELS FOR THE DEFENCE
 TABLE OF CONTENT

TABLE OF CONTENT...........................................................................................................1

LIST OF ABBREVIATIONS..................................................................................................2

INDEX OF AUTHORITIES...................................................................................................4

TABLE OF CASES..................................................................................................................5

STATEMENT OF JURISDICTION......................................................................................8

STATEMENT OF FACT........................................................................................................9

STATEMENT OF ISSUES...................................................................................................10

SUMMARY OF ARGUMENTS...........................................................................................11

ARGUMENT ADVANCED.....................................................................................................I

CONTENTION 1: THAT MANOJ IS NOT GUILTY OF MURDER UNDER SECTION 300 OF

INDIAN PENAL CODE, 1860............................................................................................. I

1.1 RIGHT TO PRIVATE DEFENCE EXIST...................................................................I

1.2 ACCUSED DIDN’T EXCEED HIS RIGHT TO PRIVATE DEFENCE................III

1.3 THAT MANOJ IS NOT GUILTY OF MURDER UNDER SECTION 300 OF INDIAN
PENAL CODE......................................................................................................................V

PRAYER FOR RELIEF........................................................................................................10

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MEMORIAL ON BEHALF OF THE DEFENCE
 LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

& And

AIR All India Reporter

IPC Indian Penal Code 1860

Anr. Another

Pat Patna

Cri. LJ Criminal Law Journal

UP Uttar Pradesh

Ed. Edition

Et Al Et. Alia

Guj Gujarat

ILR Indian Law Reporter

P&H Punjab & Haryana

¶ Paragraph

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PLJR Patna Law Journal Reports

§ Section

SC Supreme Court

SCC Supreme Court Cases

UP Uttar Pradesh

V. Versus

r/w Read with

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 INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

 Indian Penal Code, 1860

 Code of Criminal Procedure, 1973

BOOKS AND DIGESTS

 Surya Narayan Misra, Indian Penal Code, 19th edition, Central Law Publications, 2013.
 C.K Takwani, Indian Penal Code, 1860, 11th edition, Eastern Book Company, 2017.
 David Ormerod, Smith and Hogan’s Criminal Law, (13th Ed.,Oxford University Press,2011)
 Glanville Williams, Text Book Of Criminal Law, (2nd Ed.,Universal Law Publishing,1999)
 Halsburys Laws of India (Criminal Law I,Vol. 10), 2ndEd.
 J K Soonavala: Supreme Court Criminal Digest (1950-2015), 6e 2016, Vol. III.
 Justice HK Sema & Justice OP Garg, Ratanlal & Dhirajlal: The Indian Penal Code, 34th edition,
Lexis Nexis, 2021.
 K A Pandey, V P Sarthi’s Law of Evidence, 8th Ed., EBC, 2021.
 PSA Pillai: Criminal Law, 14th Ed.
 Sarkar, Law of Evidence, 17thEd.
 Sumeet Malik, P L Malik’s Criminal Court Handbook, 23rd Ed., EBC, 2016.
 The Digest 17 (1st Ed., Vol. 14 (2), London Butterworths & Co. Ltd. 1993)

WEBSITES

 www.scconline.com
 www.advance.lexis.com
 www.indiankanoon.org
 https://www.legalserviceindia.com
 https://www.lawyerservices.in

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 TABLE OF CASES

S. NAME OF CASE CITATTION

NO.

1.
1.
Aher Pitha Vajshi v. State of Gujarat 1983 Cri. LJ 1049

2.
2.
Amrik Singh v. The State of Pepsu 1955 AIR 309

3.
Arun vs State of Maharashtra (2009) 2 Cri L. J. 2065 (S.C.)

4.
3.
Barendr Kumar Ghosh v. King Emperor AIR 1925 PC 1

5.
4.
Bharwad Mepa Dana v. State of Bombay AIR 1960 SC289

6.
5.
Bhola Bind v. State of Bihar (1943) 22 Pat. 607

AIR 2006 SC 302

7.
Bishna v. State of West Bengal

8. Chandrakant Murugappa Umrani v. State of

6. 1998 SCC (Cr) 698
Maharashtra

9. Commissioner of Income Tax v. Patranu Dass

7. AIR 1982 PH 1, 4
Raja Ram Beri

10.
Darshan Singh v. State of Punjab AIR 2010 SC 1212

11.
8.
Dharnidhar v. State of UP (2010) 7 SCC 759

12. Dnyanu Hariba Mali v. state of Maharashtra,

AIR 1970 SC 979

13.
9.
Gahbar Pande v. Emperor (1927) 7 Pat. 638

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14.
10.
Hamlet @ Sasi v. State of Kerala (2003) 10 SCC 108

15.
11.
Hemchand Jha v. State of Bihar (2008) 11 SCC 303

16.
23.
Nand Kishore v. State of MP (2011) 12 SCC 120

17.
24.
Nitya Sen v. State of WB 1978 Cri LJ 481

18.
Satya Narain Yadav v. Gajanand AIR 2008 SC 3284

AIR 2008 SC 3284

19.
Satya Narain Yadav v. Gajanand

20.
25.
Satya Narain Yadav v. Gajanand (2011) 12 SCC 120

1978 Cri L.J. 2537 (S.C.)

21.
State of Orissa v. Ghenu

22.
Suresh Singhal v. State (Delhi Administration) (2017) 2SCC 737

23.
Wassan Singh v. State of Punjab (1996) 1 SCC 458.

24.
Rajkishore Purohit v. state of MP AIR 2017 SC 3588

25.
Ram Tahal v. Stat of UP 1972 Cri. LJ 227

26.
Rambilas Singh v. state AIR 1989 SC 1593

27.
Ramjee Rai v. State of Bihar (2006) 13 SCC 229

28.
Santosh v. State of Madhya Pradesh 1975 Cri LJ602 (SC)

29.
Sewa Ram v. State of UP 2008 I Cri LJ 802 (SC)

30.
Sham Shankar Kankaria v. state of Maharashtra (2006) 13 SCC 165

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31.
Shyamlal Ghosh v. State of West Bengal (2012) 7SCC 646

32.
Sivam v. State of Kerala 1978 Cri. LJ 1609

33.
State of AP v. M Sobham Babu 2011 (3) Scale 451

34.
State of Madhya Pradesh v. Digvijaya Singh 1981 Cri LJ 1278 (SC)

35.
State of Mahrashtra v. Meyer Hans George AIR 1965 SC 722

36.
State of Punjab v. Sucha Singh AIR 2003 SC 1471

37.
State of UP v. Virendra Prasad AIR 2004 SC 1517

38.
Supriyo v. Union of India 2023 LiveLaw (SC) 900

39.
Surendra Chauhan v. state of MP (2000) 4 SCC 110

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MEMORIAL ON BEHALF OF THE DEFENCE
 STATEMENT OF JURISDICTION

The Counsel for Prosecution has approached the District and Sessions Court of Mohali under Section
26 r/w 177 of the Code of Criminal Procedure, 1973 to start criminal proceedings against Manoj.

SECTION 26: COURTS BY WHICH OFFENCES ARE TRIABLE.

Subject to the other provisions of this Code, --

(a) any offence under the Indian Penal Code (45 of 1860) may be tried by--

(i) the High Court, or

(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable.

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be
tried by such Court and when no Court is so mentioned, may be tried by--

(i) the High Court, or

(ii) any other Court by which such offence is shown in the First Schedule to be triable.

SECTION 177: ORDINARY PLACE OF INQUIRY AND TRIAL.

Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it
was committed.

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MEMORIAL ON BEHALF OF THE DEFENCE
 STATEMENT OF FACT

1. Manoj and Vikram were good friends. Both of them knew each other for about 13 years since their
schooling. Both had adjacent shops in the Rohini market in Patiala.

2. Manoj was dealing with garments, while Vikram had a mobile phone repair store. Vikram was
doing excellent business and earning a very good amount of money. On the other hand, Manoj was
not doing well at all. Business was sluggish and profits were minimal.

3. Over a period of time Manoj got jealous of Vikram, and used to say nasty things about him and his
family.

4. On Diwali day in 2023, at about 7.00 pm both of them met outside their shops. After exchanging
pleasantries, Manoj said that he had to go as there was a client at his store. On this Vikram
sarcastically said that this was not possible. Who would step into your store. It must be a beggar
asking for alms.

5. Hearing this Manoj who was known to be short tempered got very angry. He abused Vikram and
said that Vikram belonged to a family of beggars.

6. Vikram hearing this came towards Manoj to strike him with a stone that he picked up from the
road. Manoj seeing this took out his pocket knife and stabbed Vikram on the left side.

7. The injury was not deep, but due to the angle there was severe bleeding which resulted in
Vikram’s death by the time he was rushed to hospital. Manoj was arrested and charged with
section 302.

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 STATEMENT OF ISSUES

ISSUE 1

WHETHER MANOJ HAS RIGHT TO PRIVATE DEFENCE AGAINST VIKRAM?

ISSUE 2

WHETHER MANOJ IS GUILTY OF MURDER UNDER SECTION 300 OF INDIAN PENAL CODE?

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MEMORIAL ON BEHALF OF THE DEFENCE
 SUMMARY OF ARGUMENTS

CONTENTION 1:

THAT MANOJ HAD RIGHT TO DEFENCE AGAINST VIKRAM.

It is humbly submitted before the Learned Court that Manoj had the right to private defence as all the
elements for the existence of private defence is fulfilled. Firstly, Vikram running towards Manoj to
strike him with stone is creating reasonable apprehension to cause hurt to Manoj and further, this hurt
existed and continued and there was no alternative legal authority to which he can approach.
Therefore, it can be established that Manoj had right to private defence. Further, he did not exceed his
right to private defence as the injury caused by the blow of knife was not deep and he had caused
decisive injury which was proportionate to the threat caused by the victim.

THAT MANOJ IS NOT GUILTY OF MURDER UNDER SECTION 300 OF INDIAN PENAL CODE, 1860.

It is humbly submitted before the Learned Court that Manoj is not guilty of Murder as he had no
intention to cause death of the victim. As per Section 6 of Indian penal Code, the General Exception
are applicable on all the provisions of the code. Hence, the General Exception of Right to Private
Defence is also one of the exceptions under Section 300 which provides that if person is under the
reasonable apprehension of hurt then he is entitled to exercise Right to Private Defence. In the Instant
matter, accused has caused injury to the victim, merely to save himself from getting hurt. Therefore,
he was justified in exercising right to private defence. Hence, cannot be held guilty of Murder.

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MEMORIAL ON BEHALF OF THE DEFENCE
 ARGUMENT ADVANCED

CONTENTION 1: THAT MANOJ IS NOT GUILTY OF MURDER UNDER

SECTION 300 OF INDIAN PENAL CODE, 1860.

1. It is humbly submitted that the accused is not guilty of Murder under section 300 of Indian
Penal Code as accused has merely exercised his right to private defence.1

1.1 RIGHT TO PRIVATE DEFENCE EXIST

2. It is submitted that in the instant matter right to private defence is available with the
accused after considering all the facts and circumstances. The essential elements for the
existence of right to private defence includes following:

(a) When there is a reasonable apprehension of harm or danger to oneself, another person or
property.

(b) The threat or danger persisted while exercising right to private defence.

(c) It shall be exercised in response to ongoing or imminent attack.

(d) Use of force must not exceed what is necessary to repel the attack.

(e) There is no reasonable opportunity to seek protection from public authorities.2

3. In the instant matter, the whole episode on the evening of the Festival of Diwali, both
victim and accused were peacefully celebrating the festival of lights and exchanged
pleasantries too. It was victim who passed a sarcastic comment which he knew will anger
the accused. Further, he was also aware about the short-tempered nature of the accused. As
a consequence of which accused merely passed nasty comment on the victim and his
family. Instead of reacting with verbal attack he took stone from the roadside and ran
towards the accused to strike him hard. This caused reasonable apprehension of hurt in the
mind of the accused. Therefore, in order to save himself from injury which is quite
imminent, he took out the pocket knife and stabbed the victim on the left side. The injury

1
Indian Penal Code, 1860, § 96, No. 45, Acts of Parliament, 1860 (India).
2
LawBhoomi, Private Defence in IPC, LawBhoomi (2023), https://lawbhoomi.com/private-defence-in-ipc/ (last
visited Mar 3, 2024).

MEMORIAL ON BEHALF OF DEFENCE

 caused was decisive in the sense that it was neither on the vital part of the body nor was
severe in nature.3

4. Hence, after considering all the fact of the present matter, it can be established that there
was reasonable apprehension to hurt which was in continuance. therefore, it can be very
well said that the right to private defence existed.

5. Further, in the case of Suresh Singhal v. State (Delhi Administration) 4, Supreme Court
held that a mere reasonable apprehension is enough to put the right of private defence into
operation.5 In other words, it is not necessary that there should be an actual commission of
offence in order to give rise to right to private defence. It is enough if the accused
apprehended that such an offence is contemplated and it is likely to be committed if the
right to private defence is not exercised. That is, no actual injury need be received before
the right is exercised.6

6. Further, it was held in Arun vs State of Maharashtra 7, that the right to private defense
commences as soon as reasonable apprehension of danger to body, the right last so long as
reasonable apprehension of danger to body continues. 8 Same is provided in Section 105 of
code.9 In the present matter, it is apparent that the threat of grievous hurt continued and has
not ended. therefore, accused exercising his right to private defence even if he was not
injured is justified.

7. It is further submitted that Self-preservation is the prime instinct of every human being. 10
Therefore, right to private defence originates from the idea that a person has an inherent
right to protect himself by effective self-resistance against unlawful aggressor. 11 A man
observed, Russell, “ is justified in resisting by force anyone who manifestly intent in
interviews by violence or surmises to comment on known felony against either his
persons, habitation or property, He’s not obliged to retreat and may not merely resist the
12
attack where he stands but may indeed pursue his adversary until the danger is ended.

3
Moot Proposition.
4
(2017) 2SCC 737.
5
Ibid.
6
M.C. Dutta v. State, 1977 Cri L.J. 506 (Gau)
7
(2009) 2 Cri L. J. 2065 (S.C.)
8
Ibid.
9
Indian Penal Code, 1860, § 105, No. 45, Acts of Parliament, 1860 (India).
10
James Martin v. State of Kerala, (2004) 2 SCC 203.
11
Manjeet Singh v. state of Himachal Pradesh, (2014) 5 SCC 697.
12
JW Cecil Turner(ed), Russell on Crime, Vol 1, 11th Edition. Stevens & Sons, London, p 49.

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MEMORIAL ON BEHALF OF DEFENCE

 there is nothing more degrading to the human spirit than to run away in face of peril. 13 it is
highly prized and valuable right granted to a person to offer effective resistance against his
assailant.14

8. In Laxman v. State of Orissa15, it was held that the right of private defense is available
only to one who is suddenly confronted with immediate necessity of averting and
impending danger nor of his own creation. the necessity must be present, real or
apparent.16Hence, in the present matter, the necessity was present, real and was apparent.
Hence, it can be contended that accused was justified in exercising his right to private
defence.

1.2 ACCUSED DIDN’T EXCEED HIS RIGHT TO PRIVATE DEFENCE

9. It is submitted that the predominant factor for the lawful exercise of right to private
defence is that the in private defence the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person. 17 further, it
was also held in the same case that it is unrealistic to expect a person under assault to
modulate his defence step by step with any arithmetical exactitude of only that much
which is required to the thinking of a man in ordinary times or under normal
circumstances.18

10. Further, in the case of Wassan Singh v. State of Punjab 19, The reasonable apprehension of
the accused that death or grievous hurt will be caused to him however is required to be
judged from the subjective point of view of the accused and it cannot be subjected to
microscopic and pedantic scrutiny. Considering the present matter, when the victim ran
towards the accused with the stone in his hand to strike him, does create a reasonable
apprehension that it will cause grievous hurt to him. 20 Therefore, from the subjective point
of view of the accused, it can be said that there was reasonable apprehension of grievous
hurt and hence, he was justified in stabbing and causing an injury which is not on the vital
part of the body to stop the victim from injuring the accused.

13
Munshi Ram v. Delhi Administration, AIR 1968 SC 702.
14
Dnyanu Hariba Mali v. state of Maharashtra, AIR 1970 SC 979.
15
1988 Cri. L.J. 188 (S.C.).
16
Ibid.
17
Darshan Singh v. State of Punjab, AIR 2010 SC 1212.
18
IBID.
19
(1996) 1 SCC 458.
20
Ibid.

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MEMORIAL ON BEHALF OF DEFENCE

11. In the case of Satya Narain Yadav v. Gajanand 21, the Honorable Supreme Court observed
that when a person is faced with imminent peril of life and limb of himself or of other, he
is not expected to weigh in golden scales the precise force needed to repel the danger. the
law therefore allows a defender, in the heat of moment, to carry his right of private
defence a little further than what would be necessary when calculated with precisions and
exactitude by a calm and unruffled mind. 22 Therefore, similar kind of theory can be made
applicable in the present matter. Infact, the injury was cautious while stabbing the victim,
he didn’t stab the victim on any vital part of the body neither he causes several stabbings,
he merely stabbed at the left side to ensure that severe and deep injury is not caused and
the victim can eventually be stopped from causing harm to accused.

12. Further, Honorable Supreme Court also observed that in moments of excitement and
disturbed equilibrium it is often difficult to expect a person to preserve composer and use
exactly only so much force in retaliation commensurate with the danger apprehended to
him where assault is imminent by use of force. 23 Similarly, in the present matter too,
accused cannot be expected to use exactly only so much force in retaliation commensurate
with the danger apprehended to him.

13. Furthermore, Supreme Court in the case of James Martin v. State of Kerala24, observed
that in such situation, a court needs to pragmatically view the facts and circumstances of a
case and not with high powered spectacles of microscopes to detect slight or even
marginal overstepping by a person by exercising his right of private defence. 25 Keeping in
view normal human reactions and conduct the court has to give due weightage to the
pragmatic facts that occurred on the spur of the moment on the spot and to avoid a hyper
technical approach in considering them.26

14. In the case of State of Orissa v. Ghenu27, the Respondent was charged for murdering his
brother, both the deceased and the respondent were heavily drunk and had a quarrel
between them in the course of which the deceased rushed towards the respondent with the
Lathi in order to assault him, respondent apprehending danger to his life dealt a blow on
the head of the deceased and in consequence of this he later died in the hospital. it was
held that there was imminent danger to the person of the respondent and as such he had the
21
AIR 2008 SC 3284.
22
Satya Narain Yadav v. Gajanand, AIR 2008 SC 3284.
23
Bishna v. State of West Bengal, AIR 2006 SC 302.
24
(2004) 2 SCC 203.
25
Ibid.
26
James Martin v. State of Kerala, (2004) 2 SCC 203.
27
1978 Cri L.J. 2537 (S.C.)

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MEMORIAL ON BEHALF OF DEFENCE

 right to private defense of his person. The fact of the above-mentioned case is quite similar
to the present case and hence, by comparing the same it can be concluded that accused
didn’t exceed his right to private defence and hence was justified in exercising his right to
private defence, proportionately.

1.3 THAT MANOJ IS NOT GUILTY OF MURDER UNDER SECTION 300 OF

INDIAN PENAL CODE.

15. It is submitted that the accused is not guilty of murder as he had no intention to cause the
death of the victim.

16. The essential of the offence of murder includes mens rea and actus reas. Further, section
30028 provides that a culpable homicide is murder if it is done with intention to cause death
or intention to cause bodily injury knowing that the injury caused is likely to cause death
or intention of causing bodily injury sufficient in the ordinary course of nature to cause
death or with knowledge that the act is imminently dangerous and therefore, at all
probability it will cause death or bodily injury which is likely to cause death and done
without any justification for incurring the risk of causing death or the injury. However, in
the present case, it is already established that accused was merely exercising his right to
private defense and has no intention to cause death of the victim.

17. Further, Section 629 of the Code provides that every law, provision, the definition of
offence & punishment should be understood with the exceptions mentioned under Chapter
IV (General Exceptions) of the Indian Penal Code. Hence, by virtue of the same provision
accused is saved from the charges of Murder by the application of section 6 on section
30230 read with section 300.

28
Indian Penal Code, 1860, § 300, No. 45, Acts of Parliament, 1860 (India).
29
Indian Penal Code, 1860, § 6, No. 45, Acts of Parliament, 1860 (India).
30
Indian Penal Code, 1860, § 302, No. 45, Acts of Parliament, 1860 (India).

MEMORIAL ON BEHALF OF DEFENCE

 PRAYER FOR RELIEF

In light of the facts of the case, issues raised, arguments advanced and authorities cited,
the Counsels on behalf of the defence humbly prays before the learned Sessions Court to
kindly adjudge and declare that:
a) Manoj has validly exercised his right to Private Defence Against Vikram and hence
he is not guilty of Murder under Section 300 of Indian Penal Code.

AND/OR

Pass any other order which the bench deems fit in the best interest of Justice, Equity and
Good Conscience, and for this act of kindness the Counsels on behalf of the Defence as
in duty bound shall forever pray.

All of which is respectfully submitted

__________________________
Sd/-

Counsels for Defence

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