LAW OF CRIMES (IPC)

IN THE HON’BLE SUPREME COURT OF INDIA

JAMES MARTIN
V
STATE OF KERALA

ON SUBMISSION TO THE HON’BLE SUPREME COURT

MEMORANDUM ON BEHALF OF PETITIONERS

JAMES MARTIN

SUBMITTED ON 23-10-2019

COUNSEL FOR THE PETITIONER:

MUSKAN KHATRI
ROLL NO. - 87
SEM - V
 James Martin v. State of Kerela ii

TABLE OF CONTENTS

I. ABBREVIATIONS ...................................................................................................................... IV

II. STATEMENT OF JURISDICTION............................................................................................ VI

III. INDEX OF AUTHORITIES ..................................................................................................... VII

IV. STATEMENT OF FACTS .......................................................................................................... IX

V. QUESTIONS PRESENTED........................................................................................... XI

VI. SUMMARY OF PLEADINGS .................................................................................................. XII

VII. PLEADINGS …..................................................................................................X1V-XX

CONTENTION I.

PETITIONER HAS NOT EXCEEDED HIS RIGHT TO PRIVATE DEFENCE ........................................ XIV

A) THE BURDEN OF PROOF STANDS DISCHARGED BY SHOWING PREPONDERANCE OF

PROBABILITIES IN FAVOUR OF THAT PLEA ON THE BASIS OF THE

B) ACCUSED HAS NOT EXCEEDED RIGHT TO PRIVATE DEFENCE ...............................XV

1. Injury not necessary for exercising right to private defence ......................... XV
2. One cannot be held liable for slightly exceeding right to private defence….XVI
3. One cannot be held liable for slightly exceeding right to private defence… XVI
C) TESTS WITH DETACHED OBJECTIVITY SHOULD NOT BE USED TO FIND OUT
WHETHER MORE FORCE THAN WAS NECESSARY WAS USED ............................ XVII

PRAYER FOR RELIEF ................................................................................................................................. XXI

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela iii

LIST OF ABBREVIATIONS

& And

AIR All India Reporter

All ER All England Reporter

Cr LJ Criminal Law Journal

Ed Edition

Hon’ble Honorable

IPC Indian Penal Code, 1860.

Mad Madras

p. Page

PW Plaintiff Witness

RI Rigorous Imprisonment

SC Supreme Court

SCC Supreme Court Cases

SCWR Supreme Court Weekly Reports

Sec. Section

v. Versus

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela iv

STATEMENT OF JURISDICTION

The petitioner, James Martin has approached the Hon’ble Supreme Court of India,
praying for a special leave petition under Article 136 of Constitution of India, 1950.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela v

INDEX OF AUTHORITIES

I. STATUTES

 Indian Penal Code, 1860

 Indian Arms Act, 1959

 Indian Evidence Act, 1872

II. BOOKS

 Ratanlal & Dhirajlal, The Indian Penal Code, Wadhwa & Co., Nagpur, 2004

 Gaur, Hari Singh, Penal Laws of India, Eleventh Edition, Law Publishers (India) Pvt.
Ltd., Allahabad

 Turner J.W.Cecil “Russel On Crime” 12 ed. (1964)

III. CASE LAW

Indian cases

Abdul Kadir v. State of Assam 1985 Cr LJ 1898.

Alingal Kunshsinnayan v. State (1905) 28 Mad 454.
Amjad Khan v. State AIR 1952 SC 165
Butta Singh v. State of Punjab 1991Cr LJ1464
Ghasi Ram v. State AIR 1952 Bhopal 25.
Jai Dev v. State Of Punjab AIR 2009 SC 340
Jharmal v. State Of Haryana 1995 Cr LJ 3212
Mohinder Pal Jolly v. State of Punjab 1979 Cr LJ 584

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela vi

Munshi Ram and Ors. v. Delhi Administration 1968 Cr LJ 806.

Pattu v State of M. P. 1995 2 Cr LJ 1970.

Puran singh v. State 1975 Cr LJ 1479
Raja Ram v. State of Haryana (1970) 1 SCWR 698.
Rizwan v. State Of Chattisgarh AIR 2003 SC 976.
Salim Zia v. State of U.P.1979 Cr LJ 323
State of Gujarat v. Bai Fatima 1975 Cr LJ 1079 State of
Orissa v Rabindranath 1973 Cr LJ 1686.
State of U.P. v. Mohd. Musheer Khan 1977Cr LJ 1897
Vidhya Singh v. State of M.P.1971 Cr LJ 1296 .
Yogendra Morarji v. State of Haryana 1980 Cr LJ 459

Foreign Cases

R v. Whyte 1987 3 All ER 416 CA.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela vii

STATEMENTS OF FACTS

The matrix of the litigation is related to a Bharat Bandh on 15.3.1998 sponsored by some
political parties. It was noticed by the trial Court that the activists were in a foul and
violent mood and had beaten up one Jossy, and this indicated their aggressive mood.
They were armed with sharp edged weapons.

Cheranelloor, where the concerned incidents took place, is a politically sensitive suburb
of Kochi where accused-Petitioner James and his father Xavier had their residence,
besides a bread factory and a flour mill in the same compound.

The incident involved in this case took place at about 2.30 p.m. on 15.3.1988 when five
young men, the two deceased in this case, namely, Mohan and Basheer (hereinafter
referred to as 'deceased' by their respective name), and PW-1, PW-2 and PW-4, who, wile
taking part in activities of the bundh, as followers of the political parties which organized
that bundh on that day, got into the flour mill of the A-2 by scaling the wall. A-2
proceeded to that place and made demands to PW-15, the employee of A-2 who was
operating the mill to close down. The trial Court on analysing the evidence concluded
that the activists had scaled the walls. Their entry into premises of the accused was not
lawful. It was also held that PW-15 was roughed up by the bandh activists, making him
runaway. A significant conclusion was arrived at that they were prepared and in fact used
muscle power to achieve their ends in making the bandh a success. It was categorically
held that the bandh activists on getting into the mill threatened, intimidated and assaulted
PW-15 so as to compel him to close down the mill. He sustained injuries, and bandh
activists indulged in violence before the firing took place at the place of occurrence.
Accused asked PW-1, PW-2 and PW-4 to leave the place. Then the activists set fire to the
residential building, flour mill, bread factory, household articles, cycles, a tempo and
scooter, parked in front of the residential building of the accused. Then the accused fired
from his rifle in which two persons died and they took shelter in a nearby house.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela viii

On consideration of the evidence on record as noted above, the conviction was made by
the trial Court and sentence was imposed. The trial Court came to hold that though the
accused persons claimed alleged exercise of right of private defence same was exceeded.

Learned Sessions Judge, N. Paravur, found the present Petitioner(A-1) guilty of offences
punishable under Section 304 Part I, 326 and 324 IPC, while the other accused was found
guilty of the offences punishable under Section 304 Part I read with Section 34, 326 read
with Sections 34, 324 IPC. Both the accused persons were sentenced to undergo
imprisonment for 7 years and for the second offence, 2 years RI and fine of Rs. 20,000/-
with default stipulation of 1 year sentence. It was directed that in case fine was realized it
was to be paid to (PW-3). Each of the accused was also to undergo sentence RI for 1 year
for the offence punishable under Section 324 IPC and to pay a fine of Rs. 5,000/- with
default stipulation of 6 months sentence. The fine, if any on realisation, was directed to
be paid to PW-7 and PW-8. The fine was directed to be paid to (PW-8). The sentences
were directed to run concurrently.

The view was endorsed by the High Court by the impugned judgment so far as the
present Petitioner is concerned. But benefit of doubt was given to A-2, father of the
present petitioner.

Against this order appeal to special leave is made to Hon’ble Court.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela ix

ISSUES RAISED
WHETHER THE PETITIONER EXCEEDED HIS RIGHT TO PRIVATE DEFENCE?

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela x

SUMMARY OF PLEADINGS

Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the
accused, who sets up the plea of self-defence. An accused taking the plea of the right of
private defence is not necessarily required to call evidence; he can establish his plea by
reference to circumstances transpiring from the prosecution evidence itself.

To claim a right of private defence extending to voluntary causing of death, the accused
must show that there were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be caused to him.

The right of private defence of the body commences as soon as a reasonable

apprehension of danger to the body arises from an attempt or threat to commit the offence
though the offence may not have been committed; and it continues as long as such
apprehension of danger to the body continues. What is reasonable by way of self defence
depends upon nature of the attack, but in a moment of crisis, unexpected anguish and
unexpected danger caused if more than necessary is use will be still a good defence if the
defender can show that he did only that he honestly and instinctively thought was
necessary.

Situations have to be judged from the subjective point of view of the accused concerned
in the surrounding excitement and confusing of the moment, confronted with a situation
of peril and not by any microscopic and pedantic scrutiny.

The background facts as noted by the trial Court and the High Court clearly show that the
threat to life and property of the accused was not only imminent but did not cease, and it
continued unabated. Not only there were acts of vandalism, but also destruction of
property.

In this background, the accused acted in exercise of right of private defence and there was
no question of exceeding such right, as held by the trial Court and the High Court.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela xi

PLEADINGS

CONTENTION I: PETITIONER DID NOT EXCEED HIS RIGHT TO PRIVATE DEFENCE.

A. THE BURDEN OF PROOF STANDS DISCHARGED BY SHOWING PREPONDERANCE OF

PROBABILITIES IN FAVOUR OF THAT PLEA ON THE BASIS OF THE MATERIAL
ON RECORD.

Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the
accused, who sets up the plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of self-defence. It is for the accused
to place necessary material on record either by him adducing positive evidence or by
eliciting necessary facts from the witnesses examined for the prosecution.

An accused taking the plea of the right of private defence is not necessarily required to
call evidence; he can establish his plea by reference to circumstances transpiring from the
prosecution evidence itself.1 The question in such a case would be a question of assessing
the true effect of the prosecution evidence, and not a question of the accused discharging
any burden. The burden of establishing the plea of self-defence is on the accused and the
burden stands discharged by showing preponderance of probabilities in favour of that
plea on the basis of the material on record.2 This Court in Salim Zia v. State of U.P.3
observed as follows: “It is true that the burden on an accused person to establish the plea
of self-defence is not as onerous as the one which lies on the prosecution and that, while
the prosecution is required to prove its case beyond reasonable doubt, the accused need
not establish the plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that

1 Munshi Ram and Ors. v. Delhi Administration 1968 Cr LJ 806.

2State of Gujarat v. Bai Fatima 1975 Cr LJ 1079; State of U.P. v. Mohd. Musheer Khan 1977Cr LJ 1897;
Mohinder Pal Jolly v. State of Punjab 1979 Cr LJ 584; Jharmal v. State Of Haryana 1995 Cr LJ 3212;
Rizwan v. State Of Chattisgarh AIR 2003 SC 976.
3
1979 Cr LJ 323.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela xii

plea in the cross-examination of the prosecution witnesses or by adducing defence

evidence.”

So, it is humbly contended that the accused need not prove the existence of the right of
private defence beyond reasonable doubt. It is enough for him to show as in a civil case
that the preponderance of probabilities is in favour of his plea.

B. ACCUSED HAS NOT EXCEEDED RIGHT TO PRIVATE DEFENCE.

Sections 100 to 101of IPC define the extent of the right of private defence of body and
section 103to 105 define the extent of right to property. If a person has a right of private
defence of body under Section 97 of IPC , that right extends under Section 100 of IPC to
causing death if there is reasonable apprehension that death or grievous hurt would be the
consequence of the assault. The right given under Section 96 to 98 and 100 to 106 of IPC
is controlled by Section 99 of IPC.

To claim a right of private defence extending to voluntary causing of death, the accused
must show that there were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be caused to him. The right of self-
defence is a very valuable right, serving a social purpose and should not be construed
narrowly.4

1. Injury not necessary for exercising right to private defence.

Section 102 of IPC talks about commencement and continuance of the right of private
defence of the body. The right of private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises from an attempt or threat to commit
the offence though the offence may not have been committed; and it continues as long as
such apprehension of danger to the body continues. It is reasonable apprehension or
grievous hurt that gives rise to right of private defence under section 100 of IPC and it

4
Vidhya Singh v. State of M.P.1971 Cr LJ 1296 .

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela xiii

has got nothing to do with the actual injury that the person using right of private defence
using has suffered which may be grievous or not. 5
2. One cannot be held liable for slightly exceeding right to private defence.

Section 99 of IPC talks about extent to which the right may be exercised and says
that the right of private defence in no case extends to the inflicting of more harm than
it is necessary to inflict for the purpose of defence.
What is reasonable by way of self defence depends upon nature of the attack, but
in a moment of crisis, unexpected anguish and unexpected danger caused if more than
necessary is use will be still a good defence if the defender can show that he did only that
he honestly and instinctively thought was necessary.6 If a man has real justification for
using right to private defence, he cannot be held liable if he slightly exceeds his right of
private defence, for these things cannot be weighed in golden scales. 7 All theses
authorities lay down the rule that even if the accused more harm than absolutely
necessary in repelling attacks, it cannot be said that he exceeded his right of private
defence.8

3. A person is entitled to retaliate an attack on his property.

The law does not intend that a person must run away to have recourse to the protection of
public authorities when he is attacked instead of defending himself. 9

A person in possession cannot be expected to leave his

property at the mercy of armed trespassers. Where there is imminent danger to the
property and the person in possession apprehends substantial damage thereto, he is
entitled to raise his own arms in defense and retaliate to keep away the attack without

applying for state aid.10

5
Raja Ram v. State of Haryana (1970) 1 SCWR 698. ; Abdul Kadir v. State of Assam 1985 Cr LJ 1898.
6
R v. Whyte 1987 3 All ER 416 CA.
7
Amjad Khan v. State AIR 1952 SC 165; Jai Dev v. State Of Punjab AIR 2009 SC 340; Yogendra
Morarji v. State of Haryana 1980 Cr LJ 459
8
Ghasi Ram v. State AIR 1952 Bhopal 25.
9
Alingal Kunshsinnayan v. State (1905) 28 Mad 454.
10
State of Orissa v Rabindranath 1973 Cr LJ 1686.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela xiv

C. TESTS WITH DETACHED OBJECTIVITY SHOULD NOT BE USED TO FIND OUT

WHETHER MORE FORCE THAN WAS NECESSARY WAS USED.

It is humbly contended that situations have to be judged from the subjective point of view
of the accused concerned in the surrounding excitement and confusing of the moment,
confronted with a situation of peril and not by any microscopic and pedantic scrutiny.11
In adjudging the question as to whether more force than was necessary was used in the
prevailing circumstances on the spot it would be inappropriate, as held by this Court, to
adopt tests by detached objectivity which would be so natural in a Court room, or that
which would seem absolutely necessary to a perfectly cool bystander. 12 The person
facing a reasonable apprehension of threat to him cannot be expected to modulate his
defence step by step with any arithmetical exactitude of only that much which is required
in the thinking of a man in ordinary times or under normal circumstances.

The Supreme Court further noticed in Butta Singh v. The State of Punjab 13 that “a person

who is apprehending death or bodily injury cannot weigh in golden scales in the spur of
moment and in the heat of circumstances, the number of injuries required to disarm the
assailants who were armed with weapons. In moments of excitement and disturbed mental
equilibrium it is often difficult to expect the parties to preserve composure and use exactly
only so much force in retaliation commensurate with the danger apprehended to him where
assault is imminent by use of force, it would be lawful to repel the force in self-defence and
the right of private-defence commences, as soon as the threat becomes so imminent. Such
situations have to be pragmatically viewed and not with high-powered spectacles or
microscopes to detect slight or even marginal overstepping. Due weightage has to be given
to, and hyper technical approach has to be avoided in considering what happens on the spur
of the moment on the spot and keeping in view normal human reaction and conduct, where
self-preservation is the paramount consideration. But, if the fact situation shows that in the
guise of self-preservation, what really has been done is to assault the original aggressor,
even after the cause of reasonable apprehension has

11
Supra note 4.
12
Puran singh v. State 1975 Cr LJ 1479; Pattu v State of M. P. 1995 2 Cr LJ 1970.
13
1991Cr LJ1464

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela xv

disappeared, the plea of right of private-defence can legitimately be negatived. The Court
dealing with the plea has to weigh the material to conclude whether the plea is
acceptable. It is essentially, as noted above, a finding of fact.”

A man is justified in resisting by force anyone who manifestly intends and endeavours by
violence or surprise to commit a known felony either against his person, habitation or
property. In these cases, he is not obliged to retreat, and may not merely resist the attack
where he stands but may indeed pursue his adversary until the danger is ended and if in a
conflict between them he happens to kill his attacker, such killing is justifiable.14

The background facts as noted by the trial Court and the High Court clearly show
that the threat to life and property of the accused was not only imminent but did not
cease, and it continued unabated. Not only there were acts of vandalism, but also
destruction of property. The High Court noticed that explosive substances were used to
destroy the properties of the accused. The trial Court found that an unruly situation
prevailed in the compound of the accused as a result of the violence perpetrated by the
bandh activists who got into the place by scaling over the locked gate and that their entry
was unlawful too, besides intimidating and assaulting PW-15 and making him flee
without shutting down the machines. Even the High Court, candidly found that tense
situation was caused by the deceased and his friends, that PW-15 suffered violence and
obviously there was the threat of more violence to the person and properties, that the
events taking place generated a sort of frenzy and excitement rendering the situation
explosive and beyond compromise.

A significant conclusion was arrived by the trial court that the activists were prepared and
in fact used muscle power to achieve their ends in making the bandh a success. It was
categorically held that the bandh activists on getting into the mill threatened, intimidated
and assaulted PW-15 so as to compel him to close down the mill. He sustained injuries,
and bandh activists indulged in violence before the firing took place at the place of
occurrence. Accused asked PW-1, PW-2 and PW-4 to leave the place. It was noticed by
the trial Court that the activists were in a foul and violent mood and had beaten up one
14
J.W.CECIL TURNER “Russel On Crime” 12 ed. (1964) p.49.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela xvi

Jossy, and this indicated their aggressive mood. They were armed with sharp edged
weapons. Finally, it was concluded that the right of private defence was exceeded in its
exercise.

In a similar case of Amjad Khan v State15 a communal riot broke out between the sindhi
refugees and the local muslims. Several muslim shop had been broken and looted and
many killed. The mob had broken into another part of the house where the accused lived
and looted it; the women and children of his family fled to accused for protection. The
mob was actually beating at his door with lathis. Under these circumstances the SC held
that it was necessary for accused to wait and see if the mob actually would not destroy
and loot his shop and kill his family. The threat was implicit in the mob and accused had
right to private defence and was justified in firing two shots which resulted in the death of
two persons.

So, it is submitted that the factual scenario clearly shows as to how the Petitioner was
faced with the violent acts of the prosecution witnesses. Admittedly, all of them had
forcibly entered into the premises of the petitioner. PW-15 one of employees was
inflicted severe injuries. In this background, the accused acted in exercise of right of
private defence and there was no question of exceeding such right, as held by the trial
Court and the High Court.

15
Air 1952 SC 165.

MEMORANDUM FOR THE PETITIONER

 James Martin v. State of Kerela xvii

PRAYER FOR RELIEF

Wherefore in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is humbly prayed before this Hon’ble Court that it may be pleased to adjudge and
declare that:

1) Petitioner did not exceed his right to private defence.

2) Set aside his conviction.

Or pass any order or decree which the court may deem fit in the interest of justice, equity,
and good conscience. All of which is humbly and respectfully submitted.

Counsel for the Petitioner

MUSKAN KHATRI

ROLL NO 87

MEMORANDUM FOR THE PETITIONER

MEMORANDUM FOR THE PETITIONER