Best Memorial Kurukshetra University 1st National Moot Court Competition 2016 (R)

1ST KU NATIONAL MOOT COURT COMPETITION, 2016

R-35 TEAM CODE: A35

IN THE HON’BLE SUPREME COURT OF INDIA AT NEW DELHI, INDIA

SLP NO……….. OF 2016

IN THE MATTER OF:

SHYAMA …PETITIONERS

SHEKHAR

V.

…RESPONDENT

UNION OF INDIANA

CLUBBED WITH WP(C) NO…………. OF 2015 …PETITIONER

AIM FOUNDATION

V.

…RESPONDENT

UNION OF INDIANA

APPEAL BY SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

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TABLE OF CONTENTS S. NO.

PARTICULARS

PAGE NO.

1.

LIST OF ABBREVIATIONS

ii

2.

INDEX OF AUTHORITIES

iii

3.

STATEMENT OF JURISDICTION

viii

4.

STATEMENT OF FACTS

ix

5.

ISSUES RAISED

xi

6.

SUMMARY OF ARGUMENTS

xii

7.

ARGUMENTS ADVANCED I.

WHETHER

THE JUVENILE JUSTICE

1-20 (CARE AND PROTECTION OF

CHILDREN) ACT, 2014 IS CONSTITUTIONAL OR NOT? A. That the act was the need of the hour. B. That the act is consistent with article 14 and article 21. C. That the act is consistent with international law. D. That the other countries also have similar laws. E. That the act is a comprehensive legislation. II.

WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE CHARGES LEVELED AGAINST HIM OR NOT? A. That The Preliminary Assessment Was Conducted As Per The New Act B. That There Is No Need For Conducting The Test C. That His Guilt Is Established Beyond Reasonable Doubt

III.

WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE CHARGES LEVELED AGAINST HIM OR NOT? A. That Ingredients As To The Offences Are Satisfied B. That There Is Sufficient Evidence To Prove Shekhar’s Guilt Beyond Reasonable Doubt

8.

PRAYER


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LIST OF ABBREVIATIONS S. NO.

ABBREVIATION

FULL FORM

1.

&

And

2.

§

Section

3.

¶

Paragraph

4.

AIR

All India Reporter

5.

Anr.

Another

6.

CrLJ

Criminal Law Journal

7.

CWC

Child Welfare Committee

8.

ed.

Edition

9.

HC

High Court

10.

IPC

Indiana Penal Code

11.

JJ

Juvenile Justice

12.

JJB

Juvenile Justice Board

13.

MLJ

Madras Law Journal

14.

NCRB

National Crime Records Bureau

15.

NCT

National Capital Territory

16.

NGO

Non Governmental Organisation

17.

NHRC

National Human Rights Commission

18.

Ors.

Others

19.

PIL

Public Interest Litigation

20.

Prof.

Professor

21.

Pvt.

Private

22.

r/w

Read with

23.

SC

Supreme Court

24.

SCALE

Supreme Court Almanac

25.

SCC

Supreme Court Cases

26.

SCR

Supreme Court Reporter

27.

u/s

Under section

28.

UNCRC

United Nations Convention On Rights Of Child

29.

US

United States

30.

v.

Versus


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INDEX OF AUTHORITIES COMMENTARIES REFERRED: BOOKS ON CONSTITUTIONAL LAW: 1. H.M. SEERVAI, 2 CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law Publishing Co. Pvt. Ltd., New Delhi 2004). 2. DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW

OF

INDIA (Universal Law

Publishing Pvt. Ltd., New Delhi 2008). BOOKS ON INDIAN EVIDENCE ACT: 1. RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE (23rd ed. Lexis Nexis, Gurgaon, 2015) 2. BATUK LAL, THE LAW OF EVIDENCE (7th ed. Orient Publishing Company, New Delhi 2015) 3. JUSTICE C.K. THAKKER, LAW OF EVIDENCE, (2nd ed. Whytes & Co., New Delhi 2015) BOOKS ON INDIAN PENAL CODE: 1. S.K. SARVARIA, R.A. NELSON’S INDIAN PENAL CODE (9th ed. Lexis Nexis Butterworths Gurgaon 2002). 2. M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency, Faridabad 2005). 3. KD GAUR, CRIMINAL LAW CASES

AND

MATERIALS (7th ed. Lexis Nexis, Gurgaon

2013) 4. DR. HARI SINGH GOUR, 1 INDIAN PENAL CODE (14th ed. Law Publishers Pvt. Ltd., Allahabad 2013) 5. DR. K.I. VIBHUTE, P.S.A. PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis, Gurgaon 2015)


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BOOKS ON JUVENILE JUSTICE: 1. R.N. CHOUDHRY, LAW RELATING

TO

JUVENILE JUSTICE IN INDIA (1st ed. Orient

Publishing Company, New Delhi 2005) 2. SUMAN NALWA & HARDEV SINGH KOHLI, COMMENTARY

ON THE JUVENILE JUSTICE

ACT (3rd ed. Universal Law Publishing Pvt. Ltd., New Delhi 2009) BOOKS ON MEDICAL JURISPRUDENCE AND TOXICOLOGY: 1. PROF. T.D. DOGRA , LYON’S MEDICAL JURISPRUDENCE

AND

TOXICOLOGY (11th ed.

Delhi Law House, Delhi 2005) BOOKS ON PRINCIPLES OF STATUTORY INTERPRETATION: 1. JUSTICE G P SINGH, PRINCIPLES

OF

STATUTORY INTERPRETATION (12th ed. Lexis

Nexis Butterworths Wadhwa, Nagpur 2010) 2. AMITA DHANDA, N.S. BINDRA’S, INTERPRETATION

OF

STATUTES (11th ed. Lexis

Nexis, Gurgaon 2014) DICTIONARIES REFERRED: 1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001). 2. OXFORD ENGLISH DICTIONARY (2nd ed. 2009). INTERNATIONAL COVENANTS REFERRED: 1. UNITED NATIONS STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE JUSTICE, 1985 (THE BEIJING RULES). 2. UNITED NATIONS CONVENTION ON RIGHTS OF CHILD, 1992. 3. UNITED NATIONS RULES

FOR THE

PROTECTION

OF

JUVENILES DEPRIVED

OF THEIR

LIBERTY (1990). JOURNAL REFERRED: 1. CRIMINAL LAW JOURNAL, AUGUST 2015.


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STATUTES REFERRED: 1. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015. 2. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000. 3. INDIANA PENAL CODE, 1860. 4. INDIANA EVIDENCE ACT, 1872. 5. THE CONSTITUTION OF INDIANA, 1950. 6. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) RULES, 2007. WEBSITES REFERRED: 1. www.judis.nic.in 2. ncrb.nic.in 3. www.scconline.com WEB LINKS REFERRED: 1. http://www.prsindia.org/uploads/media/Juvenile%20Justice/SC%20report%20Juvenile %20justice.pdf 2. http://indianexpress.com/article/india/india-news-india/parliament-passes-juvelinejustice-bill-16-and-above-to-be-tried-as-adults/#sthash.fkpmBvOo.dpuf 3. http://www.eolss.net/eolsssamplechapters/c14/e1-44-01/E1-44-01-TXT.aspx 4. http://www.thehindu.com/opinion/op-ed/towards-a-comprehensive-juvenile-justicelaw/article6221909.ece 5. http://data.worldbank.org/indicator/SE.PRM.AGES?page=2 6. http://www.prsindia.org/uploads/media/Juvenile%20Justice/Legislative%20Brief%20Ju venile%20Justice%20Bill.pdf 7. http://mhrd.gov.in/sites/upload_files/mhrd/files/statistics/SISH201112.pdf 8. http://www.palmbeachschools.org/multicultural/documents/TranscriptGuide.pdf 9. http://www.telegraphindia.com/1130202/jsp/opinion/story_16509423.jsp#.VtnaOPl961 MEMORIAL FOR THE RESPONDENT

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CASES REFERRED: S.NO.

CASE NAME

CITATION

1.

Abdul Sattar v Crown

AIR 1949 Lah 51.

2.

Aftab

Ahamd

Anasari

v.

State

of 2010 2 SCC 583

PAGE NO. 10 18

Uttaranchal, 3.

Atlas Cycle Industries Ltd. v. State Of AIR 1979 SC 1149.

13

Haryana, 4.

B.A. Umesh v. State of Karnataka

(2011) 3 SCC 85.

14

5.

Bhim Singh v. State of Uttrakhand

(2015) 4 SCC 739.

19

6.

Bomkesh

Bhattacharya

v.

Lakshmi 1978 CrLJ 848.

17

Narayana Datta, 7.

Gaurav Kumar v. State of Haryana

(2015) 4 SCALE 531.

1

8.

Hanumant v. State of M.P

AIR 1952 SC 343.

18

9.

Hari Vishnu Kamath v. Ahmad Ishaque,

AIR 1955 SC 233.

12

10. Hiralal Mallick v State of Bihar

1977 CrLJ 1921 (SC)

10

11. Hiralal v State of Bihar

1977 CrLJ 1921 (SC)

11

12. M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260.

3

13. Mathai v. State of Kerala,

(2005) CrLJ 898 (SC).

15

14. Mussammat Aimona

1864 1 W.R. (Cr.) 43.

11

15. NLSA v. Union of India and Others

(2014) 1 SCC 1

5

16. Padaala Veera Reddy v. State Of A.P,

AIR 1990 SC 79.

18

17. PT Rajan v. TPM Sahir

AIR 2003 SC 4603

12

18. Rajesh Rai v. State of Sikkim

2002 Cr.L.J. 1385

18

19. Ram Kripal S/o Shyam Lal Charmakar v. 2007 II CrLJ 2302 (SC)


14

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State of Madhya Pradesh 20. Ranganath Sharma v. Satendra Sharma

(2009) 1 SCC (Cr.) 415

17

21. Rewa Ram v. State of Madhya Pradesh,.

(1978) Cr.L.J. 858

18

22. Sainik Motors v. State of Rajasthan,

AIR 1961 SC 1480

12

23. Sarvesh Narain Shukla v. Daroga Singh (2007) 13 SCC 360.

20

and Ors., 24. Shankarlal v. State of Rajasthan,

(2004) 10 SCC 632.

20

25. Sharad Birdichand Sarda v. State of AIR 1984 SC 1682.

18

Maharashtra 26. Shri Ram Krishna Dalmia v. Shri Justice AIR 1958 SC 538.

3

S. R. Tendolkar & Others 27. State of Maharashtra v. G. Ambaji Adsul

(2011) 7 SCC 437

14

28. State of Mysore v. Venappasetty

1973 CrLJ 1568.

17

29. State of U.P. v. Babu Ram,

AIR 1961 SC 751.

12

Thr. (2014) 8 SCC 390

6

30. Subramanian

Swamy

v.

Raju

Member Juvenile Justice Board and Anr., 31. Ulla Mahapatra v The King

AIR 1950 Ori 261.

10

32. Virsa Singh v. State of Punjab

AIR 1958 SC 465.

16


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STATEMENT OF JURISDICTION Petitioner No. 1 and 2 approaches the Hon’ble Supreme Court of India under Article 136 1 of the Constitution of India which gives discretionary power to the Supreme Court of India to hear any matter on appeal against the order passed by any court or tribunal in the territory of India where justice and equity so demands. Whereas Petitioner No. 3 approaches this Hon’ble Supreme Court by filing a Public Interest Litigation (PIL) under Article 322 of the Constitution of Indiana which gives the power to the Supreme Court any petition in the form of a writ. The respondent accepts the maintainability of the case.

1

“(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.” 2 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution


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STATEMENT OF FACTS

I -------------------------------BACKDROP OF THE CASE------------------------------Shyama a poor slum-dweller, studied in a government school, dropped after 6th standard due to poor economic conditions, ever since he is a domestic-servant of Mr. R. Batra’s family. Vanita & Ravi adolescent children of Mr. R. Batra treated Shyama in a condescending manner, affronted him over trivial matters in public. One day while playing a football hit Vanita’s head due to which Ravi started verbally abusing Shekhar, who lived in the neighbourhood. Their fight was resolved by Mr. Mehta. Shekhar shared animosity with Ravi and Vanita since childhood. II -------------------THE GRUESOME MURDER OF RAVI AND VANITA---------------On 7th March, 2015, Shyama took leave for three days, knowing about the exhibition that Mr. Batra’s family was planning to visit. Next day on the fateful night of 8th March, 2015 around 8:30 p.m. Vanita was taken by four persons & Ravi sensed his sister’s absence. When Ravi reached the basement, he saw persons outraging her modesty and while trying to save her he received a blow by a rod on his head & several blows over his abdomen. Vanita’s mouth was forcefully shut and she was strangulated to death. Around 9:30 p.m., the guard discovered their bodies in the basement, reported FIR and sent bodies for medical examination. On 10th March, 2015 I.O. arrested Shekhar on the statement of Ram Manohar and further arrested Shyama, Raju, and Ranveer. Medical Report revealed that Ravi died due to internal bleeding and Vanita died due to strangulation.


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III ---------------------DECISION OF THE JUVENILE JUSTICE BOARD-----------------JJB found Shekhar & Shyama well aware of the circumstances & consequences of their acts and their case was committed to the Session Court while Raju & Ranveer were tried by the Juvenile Board u/s 304, 326, 354 r/w 34 and their guilt was corroborated by circumstantial evidence, medical evidence and were sent to special home for a period of one year. IV ----------VERDICT GIVEN BY THE SESSION COURT AND THE HIGH COURT---------On 28th July, 2015, Shyama was convicted u/s 304, 326, 354 r/w 34 and was sentenced to 3 years imprisonment by Court of Session and Shekhar’s case was remanded back to JJB and he was sent to a special home for a maximum period of 3 years. Both preferred appeal in High Court, which convicted Shyama and Shekhar u/s 302 instead of 304 and enhanced Shyama’s sentence to life imprisonment and Shekhar’s term of imprisonment was raised to 10 years. V -----------------MATTER REACHES THE SUPREME COURT---------------

Shyama & Shekhar approached the Apex Court of Indiana by way of Special Leave Petition. Shyama challenged the proceeding of the Session Court as he was minor and also raised question regarding the justification of the order passed by the Session Court & the High Court, rejecting the conduct of the Bone Test for determining his age. Shekhar challenged the judgment & order passed by the Juvenile Board, Session Court & the High Court which was passed solely on the basis of his presence in the exhibition. A PIL is also filed by AIM Foundation, an NGO challenging the constitutional validity of the Juvenile Justice (Care & Protection of Children Act), 2014.


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ISSUES RAISED ISSUE I WHETHER

THE

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2014 IS

CONSTITUTIONAL OR NOT? ISSUE II WHETHER THE HIGH COURT AND SESSION’S COURT WERE JUSTIFIED IN REJECTING THE TEST FOR DETERMINATION OF SHYAMA’S AGE OR NOT? ISSUE III WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE CHARGES LEVELED AGAINST HIM OR NOT?


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SUMMARY OF ARGUMENTS

I.

WHETHER

THE

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,

2014 IS CONSTITUTIONAL OR NOT?  It is submitted that the new Juvenile Justice (Care and Protection of Children) Act, 2014 is Constitutional. The new act has been brought as it was the need of the hour and the will of the people. It was brought into force after the clamour that was raised after a series of heinous crimes that were committed by the juveniles. This act was preceded by a consultative process.  The act is not violative of the Article 14 and Article 21 of the Constitution as it permits reasonable classification of the juveniles belonging to the age-group of 16-18 years in case of commission of heinous offences. The procedure followed during the two stages of assessment is appropriate and stands the test under the Constitution of Indiana.  The Act is in consonance with various International Covenants and Rules. India is not an isolated country to make such stringent laws to curb the menace of crimes in the society. The new act is not only a beneficial piece of legislation but also a comprehensive legislation when compared to the JJ act, 2000.  All in all, this act strikes a balance between the interests of the society and the rights of the child. When tested on the touchstone of the Constitution this Act is valid. II.

WHETHER THE HIGH COURT AND SESSION’S COURT WERE JUSTIFIED IN REJECTING THE TEST FOR DETERMINATION OF SHYAMA’S AGE OR NOT?

 The High Court and the Court of session were justified in rejecting the test for determining Shayama’s age on the ground that it is certain that in all probabilities was above the age of sixteen years. Even if the test would have been conducted it would not have given any different results. MEMORIAL FOR THE RESPONDENT

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 As per the preliminary assessment of the JJB Shyama is found capable of committing the offence and knowing the consequences of his act. The diabolic act of Shyama satisfy the ingredients of § 302 of IPC, 1860. Hence the order given by the High Court must be sustained and there was no need of conducting the Ossification Test as it would be a futile effort. III.

WHETHER SHEKHAR’S CONVICTION BY THE JUVENILE BOARD, SESSION COURT AND THE HIGH COURT WAS VALID OR NOT?

 It is submitted that Shekhar’s guilt has been proved beyond reasonable doubt on the basis of circumstantial evidence, medical evidence and corroborated by the statement of Ram Manohar. The prosecution has established the chain of circumstantial evidence and it points towards only one conclusion that Shekhar is guilty and rules out any other possibility.  Shekhar’s culpability is clearly established by his prior animosity with Ravi and Vanita and his subsequent act of grabbing an opportunity to talk to Shyama.  His presence at the crime scene where he was seen sneaking away completes the entire chain of circumstantial evidence. Both Shyama and Shekhar shared hatred for Ravi and Vanita and acted under common consensus. Hence, the decision of the High Court must be affirmed and Shekhar must be held guilty for his brutal act.


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ARGUMENTS ADVANCED MOST RESPECTFULLY SHOWETH: I.

WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2014 IS CONSTITUTIONAL OR NOT?

1. The presumption of constitutionality is to be raised since in passing the law, the majority of the elected representatives of the people believe that the restrictions imposed by the law were reasonable. 3 2. It is submitted that the JJ Act, 2014 is constitutional and it can be proved on the following grounds: A. THAT THE ACT WAS THE NEED OF THE HOUR 3. The parliament has enacted the new act because there was a dire need. A.1. THAT THE ACT WAS PASSED TO CURB MENACE IN THE SOCIETY 4. The POCSO Act, 2011 came into place when there was a sudden surge in the offences relating to Sexual activities, the guidelines were laid down on sexual offences at workplace after the diabolic incident of Vishaka v. State of Rajasthan4 and Criminal Amendment Act 2013 was also made as a consequence of the Nirbhaya Case. History is replete with examples where Experience has acted as the best teacher and has demanded ‘Change’ in the law that can never be static. As it is rightly said “law is an instrument of Social change.” 5. The highest Court of the land, in an order passed on 6th April, 2015 in Gaurav Kumar v. State of Haryana5 in recognition of the fact that the rate of crime in which the juveniles and the nature of crime in which they are involved have increased, has explicitly remarked that: 3

H.M. SEERVAI, 2 CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law Publishing Co. Pvt. Ltd., New Delhi 2004). 4 AIR 1997 SC 3011. 5 (2015) 4 SCALE 531.


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“Time has come to think of an effective law to deal with the situation, we would request the learned Attorney General to bring it to the notice of the concerned authorities so that the relevant provisions under the Act can be re-looked, re-scrutinized and re-visited, at least in respect of offences which are heinous in nature. 6. There was a public outcry demanding more stringent punishment because of the increasing juveniles who were found in conflict with Law. It was also pointed out that the Delhi Gang rape case in December 2012, the Shakti Mill Rape case in Mumbai July 2013 and the Guwahati rape case in September 2013 involving child offenders triggered a debate across the Country about the inadequacy of punishment who committed heinous crimes.6 7. This data provides for cases of juveniles in conflict with law reported under various SLL (Special and Local laws) crimes have increased by 21.8% in 2014 as compared to 2013, as 4,136 cases of juveniles in conflict with law under SLL reported in 2013 which increased to 5,039 cases in 2014.7 A.2 THAT A CONSULTATIVE PROCESS PRECEDED THE ACT 8. A standing Committee on HRD mentions that a comprehensive consultation process was adopted before the passing of the Act A review committee was also constituted under the Ministry of Women and Child Development.

8

The Women and Child Development

Ministry has posted on its website a proposed draft of The Juvenile Justice (Care and Protection of Children) Bill, 2014, on 18th June, 2014 for fifteen days suggesting broad amendments.

6

Justice Raghavendra Kumar, The case for reduction of the age of juvenility,Criminal Law Journal, August, 2015. 7 Chapter – 10 Juvenile in conflict with law See at http://ncrb.nic.in/ (Last visited 3 march 2016) 8 See Two Hundred Sixty Fourth Report The Juvenile Justice (Care and Protection of Children) Department- Related Parliamentary Standing Committee Report On Human Resource Development http://www.prsindia.org/uploads/media/Juvenile%20Justice/SC%20report-%20Juvenile%20justice.pdf (Last assessed on 3 March 2016 at 2:28 a.m.)


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B. THAT THE ACT IS CONSISTENT WITH ARTICLE 14 AND ARTICLE 21 9. It is submitted that the classification of age is reasonable and the procedure laid down in the new act for the trial of children in conflict with law is not arbitrary. Constitutionality of the legislative and executive acts should be tested on the anvil of constitutionalism and the ingrained principles.9 B.1. THAT THE CLASSIFICATION MADE IS REASONABLE 10. The most distinguishing provision of the JJ Act, 2014 is the classification that has been created as provided in Section 14(5)(f),of the Act which categorizes children in the agegroup of 16-18 who have been alleged for the commission of a heinous offence, shall undergo a preliminary assessment with respect to their physical and mental capacity. 11. This classification stands the test of Reasonable Classification as laid down in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others,10 by a Constitution Bench that, in order, to pass the test of permissible classification two conditions must be fulfilled, filled namely, (i)

that the classification must be founded on an intelligible differentia,

(ii)

that that differentia must have a rational relation to the object sought to be achieved by the statute in question.”

12. Intelligible Differentia: It is submitted that categorizing all Juveniles in only one category, irrespective of the commission of offence they had committed, resulted in overclassification. Unequals were treated equally because there was no distinction between juveniles who committed petty offences and who committed heinous offences 13. This principle has been recently reiterated by the Supreme Court in M.G. Badappanavar v. State of Karnataka,11 by stating, “Equality is a basic feature of the Constitution of India

9

DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing Pvt. Ltd., New Delhi 2008). 10 AIR 1958 SC 538. 11 AIR 2001 SC 260.


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and any treatment of equals unequally or unequals as equals will be violation of basic structure of the Constitution of India.” 14. The data by NCRB supports the differentiation. 872 juveniles were apprehended in the age-group of below 12 years, 11,220 juveniles were apprehended in the age-group of 1216 years during 2014 whereas majority of juveniles apprehended (36,138) were under the age-group of 16-18 years. The percentage shares of Juveniles apprehended under these age-groups were 1.8%, 23.3% and 74.9% respectively. 12 B.2. THAT THE PROCEDURE ESTABLISHED TO TRY THE CHILD AS AN ADULT IS APPROPRIATE 15. It is submitted that the procedure for trial of a child stands the scrutiny of Article 21. B.2.1 Composition of the JJ Board 16. Section 4(2) lays down the composition of a JJ board which shall consist of Judicial magistrate, a woman, two social workers with a minimum experience of 7 years and then the board is empowered to take any decision relating to the interest of the child and they may for this purpose take the help of psychologist or any other expert. B.2.2 Child friendly atmosphere along with Reformation and Rehabilitation 17. The provisions which ensures child friendly atmosphere and provide an opportunity for the child to reform and rehabilitate are provided in § 18, 19 and 20, Along with the preamble of the act.13 18. As per the ministry of women and Child Development, this unique instrument of a twostage assessment brings about a balance that is sensitive to the rights of the child, protective of his legitimate interests yet conscious of the need to deter crimes.14 19. Nobel Peace Laureate Kailash Satyarthi hailed the passing of the Act as a major 12

The details have been presented in Table 10.4 at http://ncrb.nic.in/ “….by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation…” 14 Justice Raghavendra Kumar, The case for reduction of the age of juvenility,Criminal Law Journal, August, 2015. 13


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legislative reform measure. 15 “Whether it’s a crime by a child or on a child, the focus has to be on reform and restitution and not just deterrence. We welcome that no child below the age of 18 will go to jail and instead be sent to a special place of safety till the age of 21,” he said. He added that the protection framework provided under this law is extremely robust. C. THAT THE ACT IS CONSISTENT WITH INTERNATIONAL LAW 20. It is submitted that the new act is supported by UNCRC16 and the Beijing Rules, 1985. C.1. THE ACT DOES NOT VIOLATE ARTICLE 40 OF UNCRC 21. Article 40(1) deal with the treatment and promotion of the child's sense of dignity vis-àvis re-integration in the society. If the parliament has made any legislation which is in conflict with the international law, then Indian Courts are bound to give effect to the Indian Law, rather than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.17 Austin used his definition of law to deny the legal character of international law, which he saw simply as positive morality. He did not deny the existence of international rules however according to Austin such rules were not commanded fundamentally for Austin, states, which are themselves sovereign cannot be subjected to the Law.18 22. Chapter II ‘General Principles of Care and Protection of Children’ is the most noteworthy characteristic of the Act, providing for ‘Care, Protection, Rehabilitation and Justice for Children’.19 It incorporates internationally accepted principles of presumption of innocence, dignity and worth, family responsibility, non-stigmatizing semantics,

15

See at: http://indianexpress.com/article/india/india-news-india/parliament-passes-juveline-justice-bill-16-andabove-to-be-tried-as-adults/#sthash.fkpmBvOo.dpuf (last accessed on 2 March 2016 at 1:05 p.m.) 16 United Nation Convention on the Rights of the Child. India ratified UNCRC on 11 December, 1992. 17 National Legal Services Authority v. Union of India and Others, (2014) 1 SCC 1. 18 Mechanisms To Create And Support Treaties Conventions And Other Responses See at: http://www.eolss.net/eolsssamplechapters/c14/e1-44-01/E1-44-01-TXT.aspx (last accessed on 4 March, 2016) 19 “Towards a comprehensive Juvenile Justice law” The Hindu 14 th July 2014.


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privacy and confidentiality, repatriation and restoration, equality and non-discrimination, and diversion and natural justice, among others. C.2. THAT THE ACT DOES NOT VIOLATE ANY OTHER ARTICLE OF UNCRC 23. The best interests of the child as required under Article 3 of UNCRC have been taken care of by incorporating §§ 19(1), 19(3) and 20 in the JJ Act, 2014. Moreover, even if he is tried as an adult, he can be sentenced to a maximum of life imprisonment with possibility of release as mentioned in § 21 of the new act which is in consonance with UNCRC. The principles relating to juvenile justice system have been incorporated in § 3 (Chapter II) of the new act. Thus, the new act is being supported by UNCRC. C.3. THAT THE ACT IS SUPPORTED BY BEIJING RULES, 1985 24. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules),take into account penological objectives in addition to rehabilitation of the offender. In Rule 17.1, the guiding principles of adjudicating matters involving juveniles are enlisted: (a) The reaction shall always be proportional to not only the circumstances and the gravity of the offence, but also to the circumstances and needs of the juvenile as well as to the needs of society20 D. THAT THE OTHER COUNTRIES ALSO HAVE SIMILAR LAWS 25. There have been laws in other countries where because of the societal changes similar laws have been adopted. In Canada, Referring to Section 13 of the Criminal Code of Canada, a youth between age of 14 to 17 years may be tried and sentenced as an adult in certain situations. 26. In USA nearly all States permit persons less than 18 years to be tried as adults. For example, in California, the majority age is 18 years, but persons older than 14 years may be tried as adults if they commit serious crimes (rape, robbery, murder etc.). The state of 20

Subramanian Swamy v. Raju Thr. Member Juvenile Justice Board and Anr., (2014) 8 SCC 390.


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New York pegs the age of juvenility at 16 years, and permits the prosecution of persons aged between 13-16 years as adults in case of serious crimes. 27. A unique feature of Blended Sentencing in USA: A juvenile court may sentence a convicted juvenile offender to both a juvenile sentence and an adult sentence. The adult sentence is suspended on the condition that the juvenile offender successfully completes the term of the juvenile disposition and refrains from committing any new offence. 28. In Nepal, The minimum age of criminal responsibility is 10 years. A child is a person below 16 years. Youth between 16-18 years are charged and tried as adults. 29. India will not be one isolated case in the comity of nations, for having classified the offences committed by juveniles as heinous and non-heinous and accordingly determining the age of juvenility in matters of heinous offences in a differential way for children between the age-group of 16-18 years. The significant factor is that, the trial of Juvenile for violent crimes can take place only after the assessment by the JJ board and in that death sentence and life-imprisonment cannot be awarded to the juvenile.21 E. THAT THE ACT IS A COMPREHENSIVE LEGISLATION 30. The new JJ Act, 2014 is a comprehensive legislation when compared with the Act of 2000. The Act provides for general principles of care and protection of children, procedures in case of children in need of care and protection in conflict with law, rehabilitation and social re-integration measures for such children and offences committed against children. One example is, the word ‘juvenile’ has been replaced with the word ‘child’ and the expression ‘juvenile in conflict with the law’ has been changed to ‘child in conflict with law.’ 31. The new act has brought into its ambit the following beneficial provisions:  Child Welfare Committee: Disposing of cases for children in need of care and 21

Supra 12


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protection; Frequency of meetings not specified. In the new act; Committee to meet at least 20 days in a month.  Adoption: No provision for inter-country adoption in the Act; the Guidelines Governing the Adoption of Children, 2011 provide for inter-country adoption. In the new act, Inter-country adoption allowed if adoption cannot take place within the country, within 30 days of child being declared legally free for adoption.  Foster care: Temporary placement of a child to be given for adoption, with a family for a short/extended period of time; biological family may be allowed to visit. In the new act, it adds new provision for monthly checks on foster family by the CWC.  After-care: Monetary and continued support for children after they leave special or children home for a period of three years or till 21 years of age. In the new act, Onetime financial support to children leaving child care institutions after completing 18 years of age is given.22

II.

WHETHER THE HIGH COURT AND SESSION’S COURT WERE JUSTIFIED IN REJECTING THE TEST FOR DETERMINATION OF SHYAMA’S AGE OR NOT?

32. This Act of 2014 of the Republic of Indiana provides to treat juveniles aged between 16 and 18 as adults if they are charged for commission of heinous crimes. A. THAT THE PRELIMINARY ASSESSMENT WAS CONDUCTED AS PER THE NEW ACT 33. The procedure for preliminary assessment has been laid down in § 15 and it has been complied with. A.1. THE OFFENCES COMMITTED WERE HEINOUS OFFENCES 34. As defined in § 2 (33) any offence which is punishable for an imprisonment for more than seven years is termed as heinous offence. Shyama has been charged under §§ 354, 326, 22

Legislative Brief The Juvenile Justice (Care & Protection of Children) Bill, 2014 See at: http://www.prsindia.org/uploads/media/Juvenile%20Justice/Legislative%20Brief%20Juvenile%20Justice%20Bi ll.pdf (Last Visited On 4 March 2016)


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304 and 302 r/w 34 of the Indian Penal Code. All the above mentioned except the offence of § 354 are heinous in nature. A.2. HE HAS COMPLETED OR IS ABOVE THE AGE OF SIXTEEN YEARS 35. Shyama dropped out of the school after completing his sixth standard due to his poor economical conditions23 and since then, he has been in the employment of Mr. Batra for last six years doing his household chores.24 In all probabilities it is certain that Shyama was at least 16 years of age. This is proved with the help of following documents:  Official entrance age to primary education as per World Bank,25 according to the data the age at which students enter primary education, when the student had studied full time and had progressed through the system without repeating or skipping a grade is at least 6 years since 15 years.26  Selected Information on School Education 2011-12, by Government of India, Ministry of Human Resource Development of India, Bureau of Planning, Monitoring and Statistics, New Delhi.27 The minimum age for admission to class-I for Primary School stage is generally 5 and 5+years or 6 and 6+ years. The minimum age for admission to Class I is 5 and 5+year in 20 States and in 6 UTs.  A Guide for the Placement and Transcript Evaluation of Foreign-Born Students 20102011 provides the Lower Secondary – for Standard I is 6 years, authenticated by Department of Multicultural Education Based on information provided by IAU. Portions reprinted with permission from the School Board of Broward County.28

23

Clarification 8: Shyama is a poor boy who lived in slums as per para 1 of the proposition it implies that he dropped out of school due to his poor economic conditions 24 ¶ 1 line 3 of the facts sheet. 25 www.worldbank.org/ 26 Official entrance age to primary education (years) See at: http://data.worldbank.org/indicator/SE.PRM.AGES?page=2 (Last Visited 3 March 2016) 27 Selected Information On School Education Government of India Ministry of Human Resource Development Bureau Of Planning, Monitoring and Statics Division New Delhi 2011-12 See at: http://mhrd.gov.in/sites/upload_files/mhrd/files/statistics/SISH201112.pdf (Last accessed on 1 March 2016) 28 A Guide for the Placement and Transcript Evaluation of Students See at:


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A.3. THAT SHYAMA WAS CAPAX OF COMMITTING THE OFFENCE 36. There are three conditions which need to be fulfilled for the preliminary assessment. A.3.1. That he had the Mental and physical capacity 37. According to the Black’s Law Dictionary, “The term ‘mental capacity’ means the mental ability to understand the nature and effect of one’s acts”. In a case when the appellant picked up his knife and advanced towards the deceased with a threatening gesture, saying that he would cut him to bite, and did actually cut him, his entire action can only lead to one inference, namely, that he did what he intended to do and that he knew all the time that a blow inflicted with a kathi would effectuate his intention.29 38. In case of Hiralal Mallick v State of Bihar,30 the court relied upon the Cross and Jones in ‘An Introduction to Criminal Law’ that state: “A child of ten years or over, but under the age of fourteen, is presumed to be incapable of committing a crime, but this presumption may be rebutted by evidence of ‘mischievous discretion’ i.e., knowledge that what was done was morally wrong”31. A.3.2. Ability to understand the consequences of the offence 39. In the case of R v Owen,32 Proof of attainment of sufficient maturity can be arrived at by the court on the consideration of all the circumstances of the case. It can be inferred from the nature of the act and his subsequent conduct. In a case, when two eight-year-old boys committed a gruesome murder in the northern English town of Stockport 152 years ago, the coroner ruled that it isn’t the offender’s age but his “strength of understanding and judgment” that establishes the true “capacity to do evil or contract guilt”. By that

http://www.palmbeachschools.org/multicultural/documents/TranscriptGuide.pdf (Last Accessed At 1 March 2016). 29 Ulla Mahapatra v The King AIR 1950 Ori 261. 30 1977 CrLJ 1921 (SC). 31 (1830) 4 C. and P. 236. 32 Abdul Sattar v Crown AIR 1949 Lah 51.


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yardstick, a youth aged 17 years, 6 months and 12 days must face the consequences of his action like any adult.33 A.3.3. Circumstances in which the offence was committed 40. In a case where, a boy participated in a concerted action and used a sharp weapon for a murderous attack on the accused, In the absence of evidence leading about the boy’s feeble understanding of his actions he was convicted of the offence.34 In another case where the accused aged 10 years was seen running out of the house and her husband was found mortally wounded on the neck. She hid herself in the field. She was held by the court to be capable because it could be inferred from the circumstances of the case and her conduct that she was possessed with sufficient degree of criminal intent so as to justify her conviction.35 41. Relating to the facts of the case, there was sufficient degree of criminal intent as to justify Shyama’s guilt under this case. When Ravi tried to save her sister, one blow was given on his head and several blows over his abdomen and Vanita was also strangulated to death. This act of the accused persons clearly showed that they were capable of committing the offence and knew the consequences of their act.36 There commission of crime was followed by their subsequent conduct of fleeing away from the spot immediately. 42. Therefore it is submitted that Shyama at the time of committing the offence was mentally and physically capable, he had the ability to understand the consequences of his act the circumstances in which he committed the offence affirms his guilt. B. THAT THERE IS NO NEED FOR CONDUCTING THE TEST 43. “The word ‘shall’”, observes HIDAYATULLAH, J. “is ordinarily mandatory but it is 33

Sunanda K. Datta-Ray, Op-Ed., MISCHIEVOUS DISCRETION, THE TELEGRAPH, Feb. 2, 2013 See at: http://www.telegraphindia.com/1130202/jsp/opinion/story_16509423.jsp#.VtnaOPl961s (Last Accessed On 3 March 2016) 34 Hiralal v State of Bihar 1977 CrLJ 1921 (SC) 35 Mussammat Aimona 1864 1 W.R. (Cr.) 43. 36 ¶5 of The Fact Sheet


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sometimes not so interpreted if the context or the intention otherwise demands”,37 and points out SUBBARAO, J.: “When a statute uses the word ‘shall’, prima facie it is mandatory, but carefully attending to the whole scope of the statute”.38 If different provisions are connected with the same word ‘shall’, and if with respect to some of them the intention of the Legislature is clear that the word ‘shall’ in relation to them must be given an obligatory or a directory meaning, it may indicate that with respect to other provisions also, the same construction should be placed.39 44. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory if thereby no prejudice is caused.40 45. The provision of section 9(2) may be construed as both mandatory and directory."While construing the word ‘shall’ the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from constituting it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the noncompliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow there from, and, above all, whether the object of the legislation will be defeated or furthered." 46. The use of word ‘shall’ raises a presumption that the particular provision is mandatory.41 47. Thus two considerations for regarding a provision as directory are:  absence of any provision for the contingency of a particular provision not being complied with or followed and

37

Sainik Motors v. State of Rajasthan, AIR 1961 SC 1480. State of U.P. v. Babu Ram, AIR 1961 SC 751. 39 Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233. 40 PT Rajan v. TPM Sahir, AIR 2003 SC 4603. 41 JUSTICE G P SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12th ed. Lexis Nexis Butterworths Wadhwa, Nagpur 2010). 38


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 serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for noncompliance with the particular provision.42 48. In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured.43 49. The observation of the division bench in the above cited case law is very clear stating that a provision can be regarded as directory if it will not result in serious general inconvenience and prejudice to the general public by reading it in that manner. The interpretation of the provision of section 9(2) as directory had not caused any prejudice in the present case. Because in the above submission it is already proved that Shyama in the present case had the sufficient maturity of understanding the consequences of his act and had the mental and the physical capacity to commit such a heinous offence. If it is known that the child has sufficient understanding to commit the alleged offence then, only one question is left that whether he is below 16 years or not. Now in the present case if the test if conducted would lead to only one result that he is above the age of sixteen years as he in no circumstance be less than 16 years of age and if one child who is above the age of sixteen years adding to it he has sufficient understanding of his act then in that case he can be treated as an adult according to § 15 of the new act. Therefore even if the test is conducted it will not going to make any change in the present position and will only lead to gross wastage of public time and money. C. THAT HIS GUILT IS ESTABLISHED BEYOND REASONABLE DOUBT 50. Identity of finger marks is the strongest evidence of the identity of person and such evidence is admissible44 42 43

Atlas Cycle Industries Ltd. v. State Of Haryana, AIR 1979 SC 1149. AMITA DHANDA, N.S. BINDRA’S INTERPRETATION OF STATUTES (11th ed. Lexis Nexis, Gurgaon 2014).


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51. In a case of B.A. Umesh v. State of Karnataka,45 where fingerprints found having Evidentiary value, Corroborative but clinching evidence, Appellant accused of rape, murder and robbery. There was no eyewitness who actually saw commission of these crimes by appellant though there were witnesses who saw him inside house and leaving the house along with household articles. His fingerprints however found on handle of almirah lying in room, Held, fingerprints scientifically established beyond doubt that accused was present in room where incident occurred. This along with evidence of other witnesses, held, established that it was accused who committed crime.

III.

WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE CHARGES LEVELED AGAINST HIM OR NOT?

52. It is submitted that the conviction of Shekhar by the Juvenile Justice Board, the Sessions Court and the High Court is valid and appropriate. The case has been proved beyond reasonable doubts and it is certain that Shekhar has committed the offence. A. THAT INGREDIENTS AS TO THE OFFENCES ARE SATISFIED 53. In State of Maharashtra v. Goraksha Ambaji Adsul46, the SC reiterated that in a case of circumstantial evidence, if the prosecution is able to establish chain of events to satisfy ingredients of commission of offence, accused would be liable to suffer consequences of his proven guilt. 54. Here, in the instant case, Shekhar has been charged of § 302, 304, 326, 354 r/w 34. The ingredients of the offences are listed as follows: A.1. INGREDIENTS OF § 354 55. The essential ingredients of § 35447 are as follows:

44

BATUK LAL, THE LAW OF EVIDENCE (20th ed. Central Law Agency, Allahabad 2014). (2011) 3 SCC 85. 46 (2011) 7 SCC 437 (¶27). 47 Ram Kripal S/o Shyam Lal Charmakar v. State of Madhya Pradesh, 2007 II CrLJ 2302 (SC). 45


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

That the assault must be on woman.



That the accused must have used criminal force on her.



That the criminal force must have been used on the woman intending thereby to outrage her modesty.

56. Assault is defined under § 351 of IPC and criminal force is defined under § 350 of IPC. 57. In Ram Kripal S/o Shyam Lal Charmakar v. State of Madhya Pradesh48, it was held that the test to determine whether modesty of a woman has been outraged is whether action of offender is such as could be perceived as one which is capable of shocking sense of decency of a woman. 58. According to medical report, there were scratches and injuries which were found on Vanita’s body. As per the facts sheet her clothes were torn.49 A.2. INGREDIENTS OF § 326 59. The following ingredients need to be satisfied: 

That grievous hurt has been caused voluntarily.



That such hurt has been caused using dangerous weapon or dangerous means.



That the act doesn’t fall under the exception of § 335.

60. However, it is important to note that whether a particular weapon comes under the category of ‘dangerous weapons’ or not depends on various factors. Therefore, no generalization can be made about what constitutes ‘dangerous weapon’. It needs to be ascertained in the light of the facts of each case.50 61. Here, in the instant case, a rod has been used by dangerous means and several blows have been made on vital part of the body of Ravi. This satisfies the ingredients of § 326. A.3. INGREDIENTS OF § 302

48

Ibid. ¶ 5 Of The Fact Sheet. 50 Mathai v. State of Kerala, (2005) CrLJ 898 (SC). 49


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62. The present case is alleged to be covered by thirdly of § 300 and § 302 provides for the punishment of culpable homicide amounting to murder. If the case is not covered under § 302 then the case is covered under § 304. 63. In Virsa Singh v. State of Punjab51, the court gave a four-point test which prosecution must observe and prove in order to bring the case under this section: Firstly, it must establish, quite objectively, that a bodily injury is present, Secondly the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 64. As per the admitted facts of the case, there were several blows made on the abdomen of Ravi. Vanita was strangulated to death. This injury is sufficient in the ordinary course of nature to cause death. Hence, it is certain that case is established under § 302. Also, the case doesn’t fall under any of the exception appended to § 300. A.4. INGREDIENTS OF § 34 65. Following are the essential ingredients of section 34 which need to be fulfilled before holding any person liable under this section: 

51

Common intention to commit an offence.

AIR 1958 SC 465.


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1ST KU NATIONAL MOOT COURT COMPETITION, 2016 

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Participation by all the accused in doing such act or acts constituting the offence.52

66. In order to attract the provision of this section, it is not enough that there was the same intention on the part of the several people to commit a particular criminal act or a similar intention.

53

Intention is a question of fact which is to be gathered from the acts of the

parties54. 67. It is trite law that § 34 is only a rule of evidence and does not create a substantive offence.55 It means that if two or more persons do a thing jointly, it is just the same as if each of them has done it individually.56 Common intention requires a prior consent or a pre-planning.57 68. In Ranganath Sharma v. Satendra Sharma58, it was held, “Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances…The prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons….be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime.” B. THAT THERE IS SUFFICIENT EVIDENCE TO PROVE SHEKHAR’S GUILT BEYOND REASONABLE DOUBT 69. The judgment of the Sessions Court states that, Shekhar’s case has been proved beyond reasonable doubts before the Juvenile Board. Moreover case has also been corroborated by circumstantial evidences, statement of eye witness and medical evidence.59 52

KD GAUR, CRIMINAL LAW CASES AND MATERIALS (7th ed. Lexis Nexis, Gurgaon 2013). M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency, Faridabad 2005). 54 S.K. SARVARIA, R.A. NELSON’S INDIAN PENAL CODE (9th ed. Lexis Nexis Butterworths Gurgaon 2002). 55 DR. HARI SINGH GOUR, 1 INDIAN PENAL CODE (14th ed. Law Publishers Pvt. Ltd., Allahabad 2013) 56 Bomkesh Bhattacharya v. Lakshmi Narayana Datta, 1978 CrLJ 848. 57 State of Mysore v. Venappasetty, 1973 CrLJ 1568. 58 (2009) 1 SCC (Cr.) 415. 59 ¶ 12 of The Fact Sheet. 53


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B.1. THAT SHEKHAR WAS PRESENT IN THE EXHIBITION 70. The statement given by Ram Manohar on 10th March, 2015, proves that Shekhar was present at the exhibition. Ram Manohar stated that he saw Shekhar sneaking out of the basement on the night of 8th of March60. Shekhar too has not disputed this fact. Shekhar has time and again stated that his mere presence does not prove his guilt. B.2. THAT THERE IS CIRCUMSTANTIAL AS WELL AS MEDICAL EVIDENCE 71. Human agency may be faulty in expressing picturisation of actual incident but circumstantial agency cannot fail.61 Therefore, many at times it is said that “men may tell lies, but circumstances do not”62 If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself /themselves, is /are not decisive.63 That the circumstances taken cumulatively should form a chain so complete64 that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.65 § 134 enshrines the maxim, “Evidence has to be weighted not counted”66 72. In Sharad Birdichand Sarda v. State of Maharashtra67, the Supreme Court described the five golden principles that were laid down in Hanumant v. State of M.P.68, Panchsheel, of the proof of the case based on circumstantial evidence. These rules are as follows: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established…. (2) The facts so established should be consistent only with the hypothesis of the guilt 60

¶ 6 of The Facts Sheet. Rewa Ram v. State of Madhya Pradesh, (1978) Cr.L.J. 858. 62 Aftab Ahamd Anasari v. State of Uttaranchal, 2010 2 SCC 583. 63 Ibid. 64 Rajesh Rai v. State of Sikkim, 2002 Cr.L.J. 1385 at P. 1390(Sikkim). 65 Padaala Veera Reddy v. State Of A.P, AIR 1990 SC 79. 66 JUSTICE C.K. THAKKER, LAW OF EVIDENCE, (2nd ed. Whytes & Co., New Delhi 2015). 67 AIR 1984 SC 1682. 68 AIR 1952 SC 343. 61


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of the accused….. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused….” 73. In Bhim Singh v. State of Uttrakhand69, SC held that, “To base a conviction on circumstantial evidence put forth by the prosecution should establish a complete and unbroken chain of events so that only one inference could be drawn out from the same.” 74. Now, in the present case, a clear chain has been established. There have been series of events which point towards the guilt of the accused.  Firstly, there was an animosity between Shekhar and Ravi since childhood.  Secondly, recently, there has been a fight between the two of them.70  Thirdly, there was an act towards the commission of the offence. When he saw Shyama being insulted by Ravi and Vanita, he grabbed this opportunity to talk and share his hatred for Ravi and Vanita with Shyama.71  Subsequently, Shyama took a leave for three days having prior knowledge regarding the visit of the family to exhibition.  Lastly, the statement of Ram Manohar that he saw Shekhar sneaking out of the basement, which was the place of crime scene. This statement reveals the subsequent conduct of Shekhar and corroborating it with the undisputed fact that all the four persons fled away.72 Ram Manohar’s statement completes the chain.

69

(2015) 4 SCC 739. ¶ 2 of the facts sheet. 71 ¶ 3 of the facts sheet. 72 ¶ 12 and ¶ 13 of the fact sheet. 70


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75. Here, each individual fact might not be sufficient to convict Shekhar, but when all these circumstances are linked to each other and when a chain is made, then Shekhar’s guilt becomes explicit. It was also corroborated by medical evidence.73 76. The common intention is clear as all the four accused persons at the spur acted in common consensus, encouraged and acted as a support to each other for the commission of the offence. B.3. THAT THE STATEMENT OF RAM MANOHAR IS CREDIBLE 77. In the present case, Ram Manohar happens to be a chance witness. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence.74 Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded.75 B.3.1 That Ram Manohar’s presence is explained 78. But here, his presence is very well explained. He was there, because he was a visitor to the painting exhibition, which was open to public.76 His presence at the basement needs no further explanation. B.3.2. That the statement of Ram Manohar has been corroborated 79. His statement can also be relied upon because his statement has been corroborated by an undisputed fact. The undisputed fact is that all the four persons fled away. And Ram Manohar is saying that he saw Shekhar sneaking out also. 80. Thus, on the basis of the evidence adduced and corroboration by ocular evidence, the chain established point out to one firm conclusion that Shekhar is blameworthy in the instant case as his guilt is proved beyond reasonable doubt.

73

¶ 10 of the fact sheet. Sarvesh Narain Shukla v. Daroga Singh and Ors., (2007) 13 SCC 360. 75 Shankarlal v. State of Rajasthan, (2004) 10 SCC 632. 76 Clarification 6: Ram Manohar is a person who came to see the Painting Exhibition, 74


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PRAYER

Whereof in the light of facts of the instant case, written pleadings and authorities cited, it is humbly prayed before this Hon'ble Supreme Court that it may be pleased to hold, adjudge and declare:

1. That the Juvenile Justice (Care and Protection of Children) Act, 2014 is constitutional. 2. That Shyama is capax of committing the offences the charges of which are leveled against him and that there is no need to conduct any test for determining his age. 3. That Shyama is guilty under §§ 302, 326, 354 r/w § 34 of IPC, 1860. 4. That Shekhar is guilty under §§ 302, 326, 354 r/w § 34 of IPC, 1860.

Pass any other order, which the court may deem fit in light of the facts of the case, evidences adduced and justice, equity and good conscience.

Sd/Counsels for the Respondent


xiv

Best Memorial Kurukshetra University 1st National Moot Court Competition 2016 (R)

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