IN THE SUPREME COURT OF INDIA

JUDICATURE AT, DELHI

( Reply Criminal Appeal No. / 2012)

IN THE MATTER OF:

StateAPPEALLANT
v/s
Shyam....RESPONDENT

(Under Article 134 and 134 A of The Constitution of India)

MEMORIAL ON BEHALF OF THE RESPONDENT
(Counsel For The Respondent)

TABLE OF CONTENTS

1. TABLE OF CONTENTS................................................................................2
2. LIST OF ABBREVIATIONS.3
3. INDEX OF AUTHORITIES .........................................................................4
4. STATEMENT OF JURISDICTION .............................................................5
5. STATEMENT OF FACTS ............................................................................6
6. ISSUES FOR CONSIDERATIONS...............................................................7
7. SUMMARY OF ARGUMENTS. 8
8. ARGUMENTS ADVANCED9
9. PRAYER FOR RELIEF................................................................................15

ABBREVIATIONS
AIR : All India Reporter
All: Allahbad
Anr. and others
Art. : Article
C.P.C: Code of Civil Procedure
Cr. L.J : Criminal Law Journal
edn : Edition
Honble: Honorable
Kar: Karnataka
S.C.R: Supreme Court Reports
SC: Supreme Court
SCC : Supreme Court Cases
W.B: West Bengal
A.P : Andhra Pradesh
Cal: Calcutta
s.: section
ss.: sections
u/s: under section
Mad: Madras
H.C: High Court
Bom.: Bombay

INDEX OF AUTHORITIES
CASES CITED
1. Barrow v. Isaacs, (1891) 1 QB 417, 420.
2. Sandford v. Beal, (1899) 65 LJQB 73, 74, 73 LT 406.
3. R. v. Levett 1639 Cro Cat 538
4. Reg. v. Frederick Jones, XI Cox CC 544
5. Section 80 of Indian Penal Code
6. Jai Lai v. Delhi Administration Sadasivam, J., and K.N. Mudaliyar, J. in Kamr Marolle, In re (1970) 83
L.W. (Crl.) 149 and Thangavelu Asari, In re (1971) L.W. (Crl.) 154, in the unreported Judgment of
Venkataraman J. and Maharajan, J., in Crl. Appeal No. 1035 of 1970 and by K.N. Mudaliyar, J. and
Ganesan, J., in K.N. Thomas, In re (1971) K.W. (Crl.) 269
7. . Madras High Court Re: Palaniappan vs Unknown on 3 April, 1972, 2 MLJ 497
8.Sardar Khan Vs State of Karnatka AIR 2004 SC 16095
9. Alluddin Main Vs State of Bihar AIR1989 SC14056
10. Manilla Mohanlla Sha and others Vs Sardar Sayad Ahamad Sayad Mohamad and another AIR 1954 SC
349
11. Brijpal Singh vs State on 31 July, 1992 H.C Delhi Judgment Reserved on: 25th, November 2009
Judgment Delivered on: 4th, December 2009
12. Mohd. Sadiq vs. The Crown AIR 1949 Lahore 85

WEBSITES REFFERED
http://www.spectrum.ieee.org
http://cobrands.public.findlaw
http://www.vakilno1.com
http://www.legallight.in/
http://indiankanoon.org
http://legal-articles.deysot
http://www.lawyersclubindia.com/
http://wiki.answers.com/Q/Do_all_guns_have_safeties_If_not_which_do_and_which_don%27t
http://hypertextbook.com/facts/2000/ShantayArmstrong.shtml

BOOKS REFFERED

V.N. Shuklas Constitution of India

The Code Of Criminal Procedure Ratanlal & Dhirajlal
The Indian Penal Code Ratanlal & Dhirajlal
The Indian Penal Code K. D. Gaur

STATUTES
Indian Penal Code 1860
Code of Criminal Procedure Act II of 1972
4

STATEMENT OF JURISDICTION :-

The RESPONDENT humbly submits to the jurisdiction of this Hon'ble High Court to admit and adjudicate
this case Under Article 134 and 134 A of The Constitution of India.

STATEMENT OF FACTS
1)
2)
3)
4)
5)

Ram and Shyam were practicing shooting.

On the date of accident Shyam had not gone for shooting.
Shyam came to the house of Ram on a friendly visit and by that time Ram was in the bathroom.
Rams wife invited Shyam to drawing room and went to bring tea for him.
In the mean time Shyam out of curiosity took the gun of Ram which was kept by the side of the
sofa in the drawing room without knowing that the gun was loaded.
6) While inspecting the gun suddenly finger ticked the trigger as a result the bullet hit Ram's wife while
bringing tea and died at the Spot.
7) Ram coming from the bathroom saw the event and held Shyam responsible for the murder of his
wife.
8) He lodged FIR and case was register and in the trial the Court of Sessions convicted Shyam and
sentenced with capital punishment. In appeal H.C turned down the sentence against which the
present appeal before the S.C.

ISSUES FOR CONSIDERATION

1. Whether Shyam should be protected under sec 76 and 80 of IPC?
2. Whether Shyam can be convicted against murder of Rams wife u/s 299, 300 and 304A of IPC?

SUMMARY OF ARGUMENTS
The Respondent is not responsible for murder of Rams wife.
SECTION 76
MISTAKE OF FACT
Appellant is not liable to get any remedy as the respondent had mistaken the fact that the gun was unloaded.
SECTION 80
ACCIDENT CAUSED DEATH
Respondents act is protected under section 80 of IPC.
SECTION 299 and 300
CULPABLE HOMICIDE AND MURDER
Illustrate that the
Respondent has not committed the offence of culpable homicide and murder.
SECTION 304A
CAUSING DEATH BY NEGLIGENCE
Shows that the
Respondent has not caused the death of Appellants wife under negligence.

ARGUMENTS ADVANCED
1. Whether Shyam should be protected under sec 76 and 80 of IPC?
Yes, Shyam should be protected under sec 76 of IPC as:76 of Indian Penal Code 1860 states that Act done by a person bound, or by mistake of fact believing
himself bound, by law.- Nothing is an offence which is done by a person who is, or who by reason of a
mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do
it.
Mistake is not mere forgetfulness1. It is a slip made not by design, but by mischance2.
The accused was held not to have been guilty of unlawful homicide, when he killed a woman ( a friend of his
servant) who was hiding behind a curtain in his house, mistakenly believing her to be a burglar. This may be
called a case of pure mistake because he did it ignorantly with no intention of killing the woman, but rather
of killing the burglar.3
Mistake may give rise to the defense of an accident, as when a gun being handled by a person who
mistakenly believes it to be unloaded, goes off and kills someone, but the person is liable for the crime of
negligence.4
In the present case also the accused has mistakenly believed that the gun was unloaded. He had no malafide
intention to cause damage to the deceased. It was just a mere mistake of fact which had caused an accident.5
Sec 80 of IPC clearly states that nothing is an offence which is done by accident or misfortune, and without
any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and
with proper care and caution.
A man is not criminally responsible for unintended and unknown consequences of his lawful acts performed
in a lawful manner, or by lawful means, with proper care and caution.
The law recognizes the latin maxim actus non facit reum, nisi mens sit rea ( the intent and act must both
concur to institute the crime ).
In the present case mens rea was absent as the accused had no guilty intention to kill the appellants wife. The
same principles have been reaffirmed by the Supreme Court6 where it has been observed that the general
burden is on the prosecution to prove beyond reasonable doubt not only the actus reus but also the mens rea.
The question which now arises for decision is whether the act of the accused falls within the ambit and scope
of Section 304A of the IPC or not; whether he is entitled to the consequent protection under section 80 of the
IPC.
1. Barrow v. Isaacs, (1891) 1 QB 417, 420.
2. Sandford v. Beal, (1899) 65 LJQB 73, 74, 73 LT 406.
3. R. v. Levett 1639 Cro Cat 538
4. Reg. v. Frederick Jones, XI Cox CC 544
5. Section 80 of Indian Penal Code
6. Jai Lai v. Delhi Administration Sadasivam, J., and K.N. Mudaliyar, J. in Kamr Marolle, In re (1970) 83 L.W. (Crl.) 149 and
Thangavelu Asari, In re (1971) L.W. (Crl.) 154, in the unreported Judgment of Venkataraman J. and Maharajan, J., in Crl. Appeal No.
1035 of 1970 and by K.N. Mudaliyar, J. and Ganesan, J., in K.N. Thomas, In re (1971) K.W. (Crl.) 269

2. Whether Shyam can be convicted against murder of Rams wife u/s 299, 300 and 304A of IPC?
No, Shyam cannot be convicted against the charge of murder of Rams wife u/s 299 and 300 of IPC as
299 Culpable Homicide.- Whoever causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence of culpable homicide.
300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the
act by which the death is caused is done with the intention of causing death, orSecondly- If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, orThirdly- If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, orFourthly,- If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.
302. Punishment for murder Whoever commits murder shall be punished with death, or [imprisonment for
life], and shall also be liable to fine.
The words "incapable of knowing the nature of the act" may, as pointed out by Mayne in his
Criminal Law of India (4th Edition - Page 173) refer to two different states of mind, which
are distinguished by the words "nature and quality", and the delusion relates to the acts
themselves. A man is properly said to be ignorant of the nature of his act, when he is ignorant
of the properties and operation of the external agencies which he brings into play, as if for
instance, an idiot should fire a gun at a person, looking upon it as harm-less fire work.
Other illustrations which are normally given are cases where a person strikes at another and
in consequence of an insane delusion believes that he is striking a bird or is breaking a jar. A
man is said to be ignorant of the quality of his act, if he knows the result which would follow
but is incapable of appreciating the elementary principles which make up the heinous and
shocking nature of the result; as for instance, where an idiot is unable to perceive the
difference between shooting a man and shooting an ape. The test is whether the person was
unconscious of what he was doing or of the consequences of his physical act.1

1. Madras High Court Re: Palaniappan vs Unknown on 3 April, 1972, 2 MLJ 497

10
An act, done with the knowledge of its consequences, is not prima facie murder, it becomes murder only if it
can be positively affirmed that there was no excuse.

In the present case though the accused was capable of knowing the nature of act but he had not done it
intentionally. He was inspecting the gun which was having a bonafide intention and not a malafide intention.
If he had a malafide intention then he could have come to the appellants house in his absence to murder his
wife or he could commence his act when he came to know that the appellant was in the bathroom and the
wife has gone to make tea in kitchen.
So this point proves that the accused cannot be charge with the punishment of murder or culpable homicide
as he did not intent to cause the injury.
So far the capital punishment is concerned, it may be stated that U/S- 354 (3) Cr. P.C, life imprisonment is the
rule and capital sentence is an exception to be resorted to for special reasons to be recorded. 1 The Apex court
given the guidelines for the impositions of death sentence. In the case the Honble apex court held that the
brutality in taking away the life of the victim is only one of the factors which is required to be taken in to
consideration for coming to the conclusion that the case in hand is one of the rarest of the rare warranting the
imposition of death sentence.
In the present case there is no evidence of any brutality or cruelty in taking away the life of Rams wife as
such and death is due to an accidental firing. Hence it does not come under the preview of rarest of the rare,
hence the Honble High Court is Justified in turning down the capital sentence.
It may be an act of rash and negligent conduct of Shyam and at no stretch of imagination it can be said that
Shyam committed the death of Rams wife as contemplated u/s-302- of I.P.C.
In the case3 it was held by the apex Court, Causing death by negligence Sec 304-A of I.P.C- Appellant
charged for offence U/S 302 of IPC for murder of X-Addsional D.M Concluded that there was a prima facie
case against the accused u/s 304 A- Appeal rejected by the Sessions Judge On appeal sentence of life
passed against the appellant for the murder of X by the H.C .
Hence, the present appeal- The evidence showed that incident happened in a very short time and suddenlyNo previous enmity between the appellant and the deceased Appellant pull the triggered without aiming the
deceased The rash and negligent act of the appellant would not constitute the offence of murder would
amount man slaughter- held that the appellant was guilty of offence of 304-A and not u/s 302 of IPC.
Now the point arises that whether there was negligence in his part or a gross negligence which itself amounts
to knowledge.

1.Sardar Khan Vs State of Karnatka AIR 2004 SC 16095

2. Alluddin Main Vs State of Bihar AIR1989 SC14056
3. Manilla Mohanlla Sha and others Vs Sardar Sayad Ahamad Sayad Mohamad and another AIR 1954 SC 349

11
Secondly, one cannot make out by holding the gun in his hand that if it is loaded or unloaded as the bullets
have very negligible weight as compared to the gun. Depending on the gun, the mass of a bullet usually
ranges between 0.02 kilograms and 0.4 kilograms. The mass of a bullet depends on the caliber and type of
gun used. A bullet can be fired from a revolver, pistol, rifle, machine gun or other weapon.

304A.Causing death by negligence. - Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.
First of all, the negligence lies in the part of the appellant as he had kept a loaded gun on a table lying near
sofa. Even the incident could have been taken place in the hands of his own wife and any other person.
If it is argued that the accused is a shooter so he should know about the handling of the gun then it is not
necessary for the accused to know about the handling of the gun as in general the types of gun which he uses
for practice and the gun found on the incident are different.
The caliber of a bullet is their diameter in centimeters, millimeters or 1/100 of an inch. The caliber ranges
from 0.22 to 0.60 inches. Different types of bullets have different calibers. The two most common types are
the lead bullet and the jacketed bullet. The jacketed bullet is usually metal jacketed. A soft brass or copperplated soft steel jacket covers the inside. The jacketed bullet is usually used for hunting and military use.1
Section 304A of the IPC necessarily postulates a rash or negligent act; mere carelessness is not sufficient for a
conviction under this section. Criminal rashness is hazardous or a dangerous or a wanton act with the
knowledge that it is so, and that it may cause injury, but without the intention to cause injury, or knowledge
that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness
or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard against injury either to the public generally
or to an individual in particular, which, having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have adopted.

1. http://hypertextbook.com/facts/2000/ShantayArmstrong.shtml

12
The petitioner himself was a police personnel i.e. of the rank of a constable. He was well conversant and in
the know-how of dealing with a weapon of this kind i.e. a loaded SAF sten gun which was a dangerous
weapon and he was fully aware of the hazards attached in handling such a weapon; he was also aware of the
fact that the weapon was loaded. This weapon could not have been fired unless the safety lever was released

followed by the pressing of the trigger. There were two overt acts which were required on the part of the
petitioner before this gun could have released the cartridge. Even presuming that one of the two acts was
accidental, the other could not have followed unless there was a active participation by the petitioner; it was
his active overt act which had led to the incident.
In such a situation even if it is presumed that the intention to cause the injury is absent, yet the from the fact
that there is a safety device attached to this weapon and unless this safety device is released, the weapon
cannot be set in motion, it is a clear case where there was a wanton lack of care in handling this dangerous
weapon; the hazards attached to it being well-known to the petitioner who was of the rank of a Constable and
was dealing with such type of weapons in the normal course of duty. The act of the petitioner leadings to the
death of the victim was clearly without due care and caution, it was an act sufficient to be encompassed
within the definition of `negligent'. The recklessness and in difference of the petitioner in handling this
dangerous weapon is apparent and the consequences have flown from this negligent act. It is thus clear that in
such a situation even in the absence of intention to cause injury, the doer of the act is guilty of a rash and
negligent act. Death of the petitioner was the direct and proximate result of this act of the petitioner.1
The accused who had a loaded pistol was demonstrating to the deceased by bringing the pistol into two
different positions; there were facts showing possibility of the pistol exploding and killing the deceased.
Accused was held guilty for an offence under this Section.2
`1. Brijpal Singh vs State on 31 July, 1992 H.C Delhi Judgment Reserved on: 25th, November 2009 Judgment Delivered on: 4th,
December 2009
2. Mohd. Sadiq vs. The Crown AIR 1949 Lahore 85

13
But it is not necessary that every gun should have safety mechanisms.
There are revolvers which have no safety mechanism, although more modern designs tend to have a transfer
bar mechanism, which prevents the hammer from making contact with the round unless the trigger is
actually pulled. This allows for a revolver to be safely carried with all cylinders loaded, whereas earlier
designs which lacked this feature would have a decocked hammer making contact with the round in the
chamber lined up with the barrel.
Many pistols won't have a traditional safety mechanism of the sort which will actually prevent the trigger
from being pulled. Some pistols, such as the Sig-Sauer pistols, some models of CZ pistols, etc. have a
decocking mechanism, which allows the hammer to be lowered without the risk of it slipping and striking the
round in the chamber. Others, such as the Glock, have a trigger block which must be depressed before the
trigger can be pulled. On the Glock, this is part of the trigger itself, whereas the Heckler & Koch P7 has it on
the front part of the grip.1
So it cannot be said that there was negligence on the part of the accused. The accusers negligence was that he
didnt check the gun on his own to know whether it was actually loaded or unloaded it was just a mere
mistake of fact u/s 76 of IPC.

1. http://wiki.answers.com/Q/Do_all_guns_have_safeties_If_not_which_do_and_which_don%27t

14

PRAYER FOR RELIEF

In the light of issues raised, arguments advanced, authority cited this honble court may rightly adjudge and
declare the decision that the respondent is protected u/s 76 of IPC so he cannot be charged for murder and as
the court may deem to fit shall pass.

15