Winning Team MemoRespondent

TEAM CODE: TC-13 INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA 1st NATIONAL MOOT COURT COMPETITION, 2016

IN THE HON’BLE SUPREME COURT OF INDIANA

(CRIMINAL (CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO. _____ OF 2016 _____ OF SHEKHAR SAXENA

………… PETITIONER

Ver sus

…………RESPONDENT

UNION OF INDIANA

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA) WITH

_____ OF SPECIAL LEAVE PETITION (CRL.) NO. _____ OF 2016 …………PETITIONER

SHYAMA Ver sus

UNION OF INDIANA

……….RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA)

MEMORIAL ON BEHALF OF THE RESPONDENT

1st NATIONAL MOOT COURT COMPETITON, 2016 INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA

TABLE OF CONTENTS LIST OF ABBREVIATIONS………………………………………………………………..4 INDEX OF AUTHORITIES…………………………………………………………………6 STATEMENT OF JURISDICTION JURISDICTION………………………………………………………...9 STATEMENT OF FACTS……………………………………………………………….....10 ISSUES RAISED…………………………………………………………………………… 13 SUMMARY OF ARGUMENTS…………………………………………………………...14 ARGUMENTS ADVANCED…………………………………………………………...... ..17 1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS MAINTAINABLE OR NOT………………………………………………17

1.1 NO 1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE........18 1.1.1 NO IRREGULARITY OF PROCEDURE OR VIOLATION OF PRINCIPLE OF NATURAL JUSTICE HAS BEEN DONE……….. DONE ………..19 19 1.2 NO 1.2 NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE……………………………………………………………………………. CASE…………………………………………………………………………….19 19 2. WHETHER THE ORDER OF THE SESSIONS COURT AND HIGH COURT WAS VALID OR NOT………………………………………………………………………..21

2.1 THE PROCEEDINGS OF THE SESSIONS COURT WERE J USTIFIED …………21 2.1.1

THERE

WAS

SUBSTANTIAL

MEDICAL

EVIDENCE

AGAINST

SHYAMA…………………………………………………………………….21 SHYAMA…………………………………………………………………….21 2.1.2

THERE WAS OCULAR EVIDENCE AGAINST SHEKHAR ……………..22 SHEKHAR ……………..22

2.2 THE SENTENCE AWARDED BY THE HIGH COURT WAS JUSTIFIED ……....23 Page | 2



2.3 THERE WAS NO NEED FOR AGE DETERMINATION OF SHYAMA …………23 3. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR SEEKING ACQUITTAL……………………………………………………………………...........25

3.1 THERE WAS THE COMMISSION OF AN ILLEGAL ACT ………………….26 ………………….26 3.2 THERE MUST BE COMMON INTENTION OF ALL TO COMMIT A CRIMINAL ACT………………………………………………………………. ACT………………………………………………………………..26 .26 3.3 THERE MUST BE PARTICIPATION OF ALL IN THE COMMISSION OF OFFENCE IN FURTHERANCE OF THAT COMMON INTENTION ………..28 ………..28 4. WHETHER THE ACT IS IN CONTRAVENTION WITH THE CONSTITUTION OF INDIANA AND INTERNATIONAL NORMS…………………………………...30

4.1 THE ACT IS IN CONSONANCE WITH THE CONSTITUTION OF INDIANA...31 4.2 THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES PRINCIPLES IN RESPECT OF JUVENILES………………………………………………………..33 JUVENILES ………………………………………………………..33 …………………………………………………………………………………….35 PRAYER …………………………………………………………………………………….35

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LIST OF ABBREVIATIONS

AIR

All India Reporter

All

Allahabad High Court

Bom. LR

Bombay Law Reporter

Cal

Calcutta High Court

CBI

Central Bureau of Investigation

Cri LJ / Cr LJ

Criminal Law Journal

Cr.P.C.

Code of Criminal Procedure

Del.

Delhi

DLR

Delhi Law Review

DLT

Delhi Law Times

Edn.

Edition

Guj.

Gujarat

JJA

Juvenile Justice Act

ILR

Indian Law Reports

IPC

Indian Penal Code

IC

Indian Cases

JT

Judgment Today

Mad

Madras

NCRB

National Crime Records Bureau

Ori

Orissa

P&H

Punjab and Haryana High Court

Pat

Patna

Raj

Rajasthan

Page | 4



RCR

Recent Criminal Reports

SC

Supreme Court

SCC

Supreme Court Cases

SCJ

Supreme Court Journal

SCR

Supreme Court Reporter

Sec.

Section

U.O.I.

Union Of India

v.

Versus

Page | 5



INDEX OF AUTHORITIES CASES 

Dhakeswari Cotton Mills Ltd. v CIT West Bengal, Bengal, (1955) AIR 65 (SC).



State of U.P. v. Anil Singh, AIR 1988 SC 1998.



Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills , (2008) 13 SCC 223.



Hem Raj v. The State of Ajmer, 1954 1954 SCR 380.



State of H. P. v. Kailash Chand Mahajan, (1992) AIR 1277 (SC).



P.S.R. Sadhanantham Sadhanantham v. Arunachalm & Ors. , (1980) 3 SCC 141



Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC).



Raghunath G. Pauhale Pauhale v. Chagan Lal Sundarji Sundarji & Co., (1999) (1999) 8 SCC 1 (SC).



Jamshed Hormsuji Wadia v. Board Board of Trustees, Port of Mumbai AIR 2004 2004 SC 1815.



Parichat v. State of Madhya Pradesh, Pradesh, AIR 1972 SC 535. 535.



Dhansai v. State of Orissa, AIR 1969 1969 Ori 105.



State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC).



Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974 SC 514.



Sharif Ahmad Alias Achhan, (1956) 2 All 188.



Bhopal Singh v. State State of Rajasthan AIR 1968 Raj 305.



Maqsoodan v. State of of UP, 1983 Cr LJ 218 (SC). (SC).



Hardev Singh v. State of Punjab, Punjab, AIR 1979 SC 179. 179.



Union of India & Ors v. Su Pandurang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 331.



Akanda v. Emperor, AIR 1944 1944 Cal 339.

 

State of M.P v. Desh Raj, (2004) 13 SCC 199. Idris Bhai Daud Bhai v. State State of Gujarat, 2003 SCC 277. 277.



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Union of India & Ors v. Sunil Kumar Sarkar, (2001) 3 SCC 414.


1st NATIONAL MOOT COURT COMPETITON, 2016 INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA 

Deepak v. State of Haryana, (2015) (2015) 4 SCC 762.



Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484.



Abdul Sayeed v. State Of M.P, M.P, (2010) 10 SCC 259. 259.



Babloo Pasi v. State of Jharkhand Jharkhand 2009 2009 (64) ACC. 754.



Ravinder Singh Gorkhi v. State of Uttar Uttar Pradesh, (2006) 5 SCC SCC 584.



Gaurav Kumar v. The State of Haryana 2015 (4) SCALE5 31.



Salil Bali v. Union of India & Anr., (2013) 7 SCC 705.



State of Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737.



Subramanian Swamy v. Raju, (2014) 8 SCC 390.

BOOKS 

Ratanlal & Dhirajlal’s Law Dhirajlal’s Law of Crimes – Crimes – A A Commentary on The Indian Penal Code, Vol I, Bharat Law House, Delhi, 27 th Edn. 2013.



Ratanlal & Dhirajlal’s Law Dhirajlal’s Law of Crimes – Crimes – A A Commentary on The Indian Penal Code, Vol II, Bharat Law House, Delhi, 27 th Edn. 2013.



K I Vibhute, P.S.A Pillai’s Pillai ’s Criminal law, Lexis Nexis, 12th Edn. 2014.



Dr. (Sir) Hari Singh Gour, Penal Law of India I ndia,, Law Publishers (India) Pvt. Ltd., 11th Edn. 2014.



J C Smith, Smith and Hogan Criminal Law – Cases and Material s, s, LexisNexis Butterworths, 8th Edn. 2002.



Basu’s Indian Penal Pena l Code (Law of Crimes), Vol I., Ashoka Law House, 11th Edn. 2011.



Criminal Manual , Universal Law Publishing Company, 2015.



Dr. Karunakaran Mathiharan, Modi’s Medical Jurisprudence and Toxicology, Toxicology, LexisNexis Butterworths, 23rd Edn. 2010.



Maharukh Adenwalla , Child Protection and Juvenile Justice Justi ce System, ChildLine System, ChildLine India Foundation, Mumbai, 10 th Edn. 2008.

Page | 7


1st NATIONAL MOOT COURT COMPETITON, 2016 INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA 

Ved Kumari, Juvenile Justice System in India, Oxford University Press, New Delhi, 2004.



S.K.A Naqvi & Sharat Tripathi, R. Tripathi, R. N. Choudhry’s Law Relating to Juvenile Justice in in India, Orient Publishing Company, New Delhi, 3 rd Edn. 2012.

STATUTES 

Indian Penal Code, 1860.



The Juvenile Justice (Care and Protection of Children) Act. 2015.



The Juvenile Justice (Care and Protection of Children) Rules, 2007.



The Constitution of India, 1949.

TREATIES 

United Nations Convention on the Rights of the Child, 1990.

LEXICONS 

Garner Bryana, Black’s Bryana, Black’s l aw aw Dictionary, Dictionary, 7th Edn.1981, West Group.



Collin’s Gem English Thesaurus, Thesaurus , 8th Edn. 2016. Collins.



Catherine Soanes, Oxford Dictionary Thesaurus, Thesaurus, 40th Edn. 2006, Oxford University Press.

LEGAL DATABASES 

Manupatra



SCC Online



Judis



Indian Kanoon

Page | 8



STATEMENT OF JURISDICTION

The Petitioners have approached the Hon'ble Supreme Court of Indiana under Article 136 of the Constitution of Indiana. The Respondents reserve the right to contest the jurisdiction of this Hon’ ble ble Court. The article 136 of Constitution Constitution of Indiana reads as hereunder:

“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.

(1) Notwithstanding Anything In This Chapter, The Supreme Court May, In Its Discretion, Grant Special Leave To 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.”

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STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are summarized as follows: BACKGROUND

1. Shyama is a poor boy who used to live in a slum in the outskirts of the cit y of Brada in the Republic of Indiana. He studied in a government funded school named, Shanti Niketan School up to Sixth Standard but then he dropped out of school and since then, he has been in the employment of Mr. R. Batra. Shyama lives in the quarter provided by Mr. Batra. It has been 6 years since his employment. 2. Mr. R. Batra had two children, a boy named Ravi, aged 18 years and a girl named Vanita, aged 16 years. Shekhar Saxena, aged 17 years and 7 months is the Son of Mr. Saxena. Shekhar is the neighbor of Mr. Batra. 3. Shekhar and Ravi had hatred for each other since childhood. In light of this both had a heated quarrel. One day Shekhar was playing soccer in the park and Ravi & Vanita were jogging at the same time. While playing soccer, the football got hit over Vanita’s head and she sustained some minor injuries. As a result, Ravi started verbally abusing Shekhar and this led to a heated quarrel between the two where Ravi gave a blow to Shekhar. Soon, the quarrel was resolved by one of the neighbors. 4. Both, Ravi and Vanita, used to insult Shyama in a condescending manner. Shyama was also abused and tormented in public. One day, da y, Shekhar saw this and talked to Shyama. Both started sharing the hatred for Ravi and Vanita.

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DEATH OF RAVI AND VANITA

5. Shyama took a leave for 3 days on 7 th March, 2015 for going to his village. He had the permission of Mr. Batra for the t he leave. On 8th March, 2015, Mrs. Batra had planned to go to a painting exhibition with her family but due Mr. Batra’s work she decided to go with her children. Shyama had prior knowledge of the same. 6. Mrs. Batra, with her children, reached the exhibition at 7:30 P.M. on 8 th March, 2015. Around 8:30 P.M. Vanita was taken away by four persons. Ravi sensed this and he started searching for his sister. While searching, Ravi went to the basement and saw four persons. Two persons were holding her sister and the other two were trying to outrage her modesty. 7. Ravi tried to save his sister, however, he was suffered one blow on his head and several blows on his abdomen. As a result, he fell unconscious. His sister Vanita tried to scream, but her mouth was shut and in sudden haste she was strangulated. She fell dead and all the four persons fled away. The bodies of the deceased were discovered around 9:30 P.M by the guard who came down to the basement to switch off the lights. JUDICAL PROCEEDINGS

8. Shekhar was arrested on 10 th March, 2015 on the information of Ram Manohar who saw him sneaking out the basement on the night of 8 th March, 2015. On the 12 th March, 2015, Shyama was arrested along with Raju and Ranveer, who were Shekhar’s friends. 9. On 15th May, 2015, the case was admitted to the Juvenile Board ( hereinafter as as JB) as all the boys were alleged to be below the age of 18 years. The case of Shekhar and Shyama was committed to the Sessions Court as the JB found them well aware of the circumstances and consequences of their acts. Both of them were tried u/s 302, 304, 326, 354 read with S. 34 of the Indiana Penal Code ( hereinafter as as IPC).

Page | 11



10. On 12th June, 2015 Shekhar’s case was remanded back to the JB. However, Shyama’s submissions were rejected due to lack of evidence of age as his Birth Certificate provided by the Municipality could not not be discovered. Shyama’s assertion to carry out a Bone Test or any other allied test for the determination of his age was also rejected by the court due to inconclusiveness inconclusiveness of these kinds of tests. 11. On 28th July, 2015, Shyama was found guilty u/s 304, 326, 354 read with S.34 of IPC, 1860. He was sentenced to imprisonment of 3 years. Shekhar was found guilty u/s 304, 326, 354 read with S. 34 of IPC, 1860 on 4 th August, 2015 and he was sent to a special home for a maximum period of 3 years by the JB. Shekhar appealed to the Session court against the judgement and order passed by the Juvenile Board. However, the appeal was dismissed as the case had been proved beyond reasonable doubt before the Juvenile Board. 12. Both Shekhar and Shyama appealed to the High Court. Shyama filed an appeal against the order of conviction since the Court of Session had no jurisdiction to try the case as he was a minor. He also raised question regarding the justification of the court in rejecting the bone test. Whereas, Shekhar filed an appeal for the quashing of the order of conviction of the Court. Both the appeals were rejected by the High Court as both were capax of committing the crime and both had common consensus. A contention was raised in the cross appeal filed by prosecution against Shyama & Shekhar that both the culprits should be convicted under S.302 instead of S.304. This was accepted by the high court and Shyama was sentenced was life imprisonment and Shekhar was sentenced for imprisonment of 10 years. 13. On 11th January, 2016, both the accused have petitioned have petitioned before this Hon’ble Hon’ble Apex Court against the order of High Court and the Sessions Court. The matter is admitted and listed for hearing.

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ISSUES RAISED

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS MAINTAINABLE OR NOT.

2. WHETHER THE ORDER OF THE SESSIONS COURT AND HIGH COURT WAS VALID OR NOT

3. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR SEEKING ACQUITTAL.

4. WHETHER

THE

ACT

IS

IN

CONTRAVENTION

WITH

THE

CONSTITUTION OF INDIANA AND INTERNATIONAL NORMS.

Page | 13



SUMMARY OF ARGUMENTS


It is most respectfully submitted before the Honorable Supreme Court of Indiana that the instant petition is not maintainable as Special Leave cannot be granted when substantial justice has been done and no exceptional or special circumstances exist for case to be maintainable. In the present case no exceptional and special circumstances exist and substantial justice has already been done It is contended by the respondents that no substantial question of law is involved in the present case and the interference is based bas ed on pure question of fact which is entitled to be dismissed. This court had laid down the test which says if the general principles to be applied in determining the question of those principles the question would not be a substantial question of law. In the present case the appellants have been unsuccessful to show any exceptional and special circumstances which exist. The appellants are convicted of a heinous offence and this petition filed by the appellants is a mere vexatious attempt by them. Hence, the petition is liable to be dismissed. 2. WHETHER THE ORDER OF THE SESSIONS COURT AND HIGH COURT WAS VALID OR NOT.

It is humbly submitted before this Hon’ble Supreme Court that the Sessions Court has declared both, Shyama and Shekhar, as the accused in the light of the heinous acts committed by them. It is contended by the respondents that the proceedings of the Sessions Court in the present case were justified and lawful. There was no irregularity of proceeding in the present case.

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The Sessions Court found Shyama guilty of the offences in light of the circumstantial evidences which were found against him. According to the Medical Report, the fingerprints of Shyama were found on Vanita’s body which led the court upon such a decision. The second accused in the present case i.e. Shekhar was found guilty by the Sessions Court upon the statement of Ram Manohar. He is the same person who saw Shekhar escaping out of the basement, where the whole crime took place, at the night of the crime. In this situation it can be well ascertained that, not only his appearance was considered also his acts were considered too. Hence, in the present case the accused was well aware of the circumstances of his delinquent act and hence he was capax of committing such a heinous offence. It’s further contended before this Hon’ble Court Hon’ble Court that the orders passes by both the lower courts were well justified and there is no need to waste the time of the court in such vexatious and false contentions. 3. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR SEEKING ACQUITTAL

It is contented before this honorable Court that the decision passed by the Honorable High Court is a reasoned decision. Also, it is further contended that Shekhar was not charged merely on the ground of presence alone. It is humbly submitted before this honorable Court that, his plea of merely present at the crime scene is wrong and denied. The accused was present at the crime scene in pursuance of a pre-planned act of taking revenge. It is his hatred and animosity due to which he committed such a heinous offence. It is pertinent to mention again that, Shekhar became so ambitious with the hatred against Ravi and Vanita that, he started discussing the same with their servant.

Page | 15



4. WHETHER THE ACT IS IN CONTRAVENTION WITH THE CONSTITUTION OF INDIANA.

It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile Justice (Care and Protection of Children) Act. 2015 is very much in consonance with the provisions of the Constitution of Indiana. Indiana. All the children in the age group of 16-18 years years are treated equally and no two children in the age group of 16-18 years who commit a heinous offence are proposed to be treated differently under the current Act. Hence, there will be not differential treatment of such children on any ground.

The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly defined and classified offences as petty, serious and heinous, and defined differentiated processes for each category. The present act which has been amended is very well in consonance with the Articles of the Constitution of Indiana. The Republic of Indiana is a signatory to various conventions which protect the rights of Children.

The United Nations Convention on Rights of Child was r atified by the Republic of Indiana in 1992 and the 2000 Act was consequently brought in to adhere to the s tandards set by the Convention. The countries who are a signatory to the convention have cer tain international commitments. However, by only becoming a mere signatory to the convention does not make any country legally bound to follow the provisions of the convention. It is onl y when then country has ratified such provisions, it becomes legall y bound to abide by them.

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ARGUMENTS ADVANCED


It is most respectfully submitted before the Honorable Supreme Court of Indiana that the instant petition is not maintainable as Special Leave cannot be granted when substantial justice has been done and no exceptional or special circumstances exist for case to be maintainable. It will not be granted if there is no fail ure of justice or when substantial justice is done. Article 136 does not give a right to a party to appeal to SC rather it confers wide discretionary power on the SC to interfere in suitable cases1. Also in the present case, no substantial question of law is involved and interference is based on pure question of fact which is entitled to be dismissed. A mere existence of substantial question of law is not sufficient unless serious injustice of the substantial nature has been occasioned2. The Supreme Court, however, does not grant leave to appeal in criminal matters liberally. It does so only when exceptional and special circumstances exist, substantial and grave injustice has been done, and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, or there has be en a departure from legal procedure such as vitiates the whole trial, or if the findings of fact “were such as shocking” to the judicial conscience of the Court 3

1

Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC).

2

Hon’ble Justice Bhanwar Singh, Criminal Appeals, Appeals, JTRI Journal, 1995.

3

State of U.P. v. Anil Singh, AIR 1988 SC 1998.

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1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE.

The petitioner contends that in the present case no exceptional and special circumstances exist and substantial justice has already been done. The appellant must show that exceptional and special circumstances exists and that if there is no interference, substantial and grave injustice will be done to the appellant4. Only then the court would exercise its overriding powers under Art. 136 5. Special leave will not be granted when there is no failure of justice or when substantial justice is done, though the decision suffers from some legal errors6 The court has emphasized in Pritam Singh v. The State 7 that, “ The only uniform standard which in our opinion can be laid down in the circumstances in that Court should grant special leave to appeal in those cases where special circumstances are shown to exist”. The court shall interfere with the decision under challenge only if the extraordinary flaws or grave injustice or other rec ognized grounds are made out8. It was also observed that, it is not possible to define the limitations on the exercise of the discretionary jurisdiction vested in this Court under Art. 136. It being an exceptional and overriding power, naturally, has to be exercised sparingly and with caution and only in special and extraordinary situations9. Article 136 does not give a right to a party to

4

Hem Raj v. The State of Ajmer, 1954 SCR SCR 380.

5

M.P Jain, Indian Jain, Indian Constitutional Law, Law, LexisNexis, Nagpur, 7th Edn. 2014.

6

State of H. P. v. Kailash Chand Mahajan, (1992) AIR 1277 (SC).

7

AIR 1950 SC 169.

8

9

Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills , (2008) 13 SCC 223. Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, (1955) AIR 65 (SC).

Page | 18



appeal to the SC rather it confers a wide discretionary power on the SC to interfere in suitable cases10. In the present case the appellants have been unsuccessful to show any exceptional and special circumstances which exist. The appellants are convicted of a heinous offence and this petition filed by the appellants is a mere vexatious attempt by them. Hence, the petition is liable to be dismissed. 1.1.1

NO

IRREGULARITY

OF

PROCEDURE

OR

VIOLATION

OF

PRINCIPLE OF NATURAL JUSTICE HAS BEEN DONE.

In plethora of cases, it has been held that except that where there has been an illegality or an irregularity of procedure or a violation of principle of natural justice resulting in the absence of a fair trial tri al or gross miscarriage miscarria ge of justice, the t he SC does not permit a third review of evidence with regard to question of fact in cases in which two courts of fact have appreciated and assessed the evidence with regard to such questions11. It is contended that this court is not bound to go into the merits and even if it were to do so, and declare the law or point out the error, sti ll it may not interfere if the justice of the case on facts doesn’t require interference or if it feels that the relief could be molded in a different fashion 12.

1.2 NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE.

It is contended by the respondents that no substantial question of law is involved in the present case and the interference is based on pure question of fact which is entitled to be

10

P.S.R. Sadhanantham v. Arunachalm & Ors. , Ors. , (1980) 3 SCC 141.

11

Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC). (SC) .

12

Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., Co., (1999) 8 SCC 1 (SC).

Page | 19



dismissed. This court had laid down the test which says if the general principles to be applied in determining the question of those principles the question would not be a substantial question of law. It might involve question of law but not ‘substantial’ question of law. The present case does not involve such ‘substantial’ question of law. In Jamshed Hormsuji Wadia v. Board of Trustees, Port of Mumbai 13 the court emphasized that, “the “the very conferment of the discretionary power defies any attempt at exhaustive definition of power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in the furtherance of cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist” exist”.

13

AIR 2004 SC 1815.

Page | 20



2. WHETHER THE ORDER OF THE SESSIONS COURT AND HIGH COURT WAS VALID OR NOT.

It is humbly submitted before this Hon’ble Supreme Court that the Sessions Court h as declared both, Shyama and Shekhar, as the accused in the light of the heinous acts committed by them. This order of conviction of both the persons accused has also been upheld by the Hon’ble High Court. The Hon’ble High Court raised the sentence of both the persons convicted. convicted. Shyama was ordered to be sentenced for life imprisonment and Shekhar Shekhar was sentenced for a period of 10 years imprisonment14. This order of conviction passed by the Sessions Court and the sentence increased by b y the High Court are well justified.

2.1 THE PROCEEDINGS OF THE SESSIONS COURT WERE JUSTIFIED

It is contended by the respondents that the proceedings of the Sessions Court in the present case were justified and lawful. There was no irregularity of proceeding in the present case. The Sessions Court found Shyama guilty of the offences in light of the circumstantial evidences which were found against him. According to the Medical Report, the fingerprints of Shyama were found on Vanita’s body which led the court upon such a decision. 2.1.1

THERE WAS SUBSTANTIAL MEDICAL EVIDENCE AGAINST SHYAMA

Recently, in a case 15 the court emphasized that, “even the medical evidence supports the commission of sexual violence on the victim and we need not elaborate on this issue any more in the light of concurrent finding of the courts

14

Fact Sheet, ¶ 13, Line 16-18.

15

Deepak v. State of Haryana, (2015) 4 SCC 762.

Page | 21



below having been recorded against the Appellant holding in clear terms that sign of commission of rape on the victim by the Appellant stood proved by medical evidence beyond reasonable doubt” doubt ”. In the present case, the fingerprints of Shyama on the body of Vanita were enough to prove that the heinous offence was committed by him. There was substantial circumstantial evidence before the Sessions Court against Shyama which led to his conviction. 2.1.2

THERE WAS OCULAR EVIDENCE AGAINST SHEKHAR

The second accused in the present case i.e. Shekhar was found guilty by the Sessions Court upon the statement of Ram Manohar. He is the same person who saw Shekhar escaping out of the basement, where the whole crime took place, at the night of the crime. It has been held in plethora of cases that wherein there is a difference of opinion regarding the ocular and medical evidence, the ocular evidence always supersedes the medical evidence. Since witnesses are the eyes and ears of justice, the oral evidence has primacy over the medical evidence. If the oral testimony of the witnesses is found reliable, creditworthy and inspires confidence, the oral evidence has to be believed, it cannot be rejected on hypothetical medical evidence 16 The testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence 17. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-`-vis medical evidence, when medical

16

Hon’ble Justice M.L Singhal, Medical Singhal, Medical Evidence and it’s use in trial of cases, J.T.R.I. Journal, Issue – Issue – 3, 3,

September, 1995. 17

Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484.

Page | 22



evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence 18. Hence, the Sessions Court was justified in convicting both the accused for committing such heinous heinous offences.

2.2 THE SENTENCE AWARDED BY THE HIGH COURT WAS JUSTIFIED

The increasing of the sentence of both the accused in the present case by the Hon’ble High court was a justified act. The Hon’ble High Court sentenced Shyama for imprisonment for life and Shekhar was sentenced for imprisonment for a period of ten years. The The Hon’ble High Court opined that the evidences revealed that both of the accused were well aware of the circumstances of their delinquent acts. Also, the case had been proved beyond reasonable doubt.

2.3 THERE WAS NOT NEED FOR AGE A GE DETERMINATION OF SHYAMA.

It is humbly contended before this honourable court the reasons given by High Court while rejecting the petition stated that, Shyama was well aware of the circumstances and consequences of his delinquent act and therefore he was considered capax of committing crime. It has been held by the courts in their judgments where if the court by the appearance of the person can determine if the person is adult then, he will be considered adult. The court in the case of Babloo of Babloo Pasi v. State of Jharkhand 19 opined that by observing the physical built up of the person, it can be ascertained ascertain ed that he is an adult. It would be a

18

Abdul Sayeed vs State Of M.P, (2010) 10 SCC 259.

19

2009 (64) ACC. 754.

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duty of the court to accord the benefit to a juvenile, provided he is one, to give such benefit to one who in fact is not a juvenile may cause injustice to the victim 20 In this situation it can be well ascertained that, not only his appearance was considered also his acts were considered too. Hence, in the present case the ac cused was well aware of the circumstances of his delinquent act and hence he was capax of committing such a heinous offence. It’s further contended before this Hon’ble Court that the orders passes by both the lower courts were well justified and there is no need ne ed to waste the time of the court in such vexatious and false contentions.

20

Ravinder Singh Gorkhi v. State of Uttar Pradesh, (2006) Pradesh, (2006) 5 SCC 584.

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3. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR SEEKING ACQUITTAL

It is contented before this honorable Court that the decision passed by the Honorable High Court is a reasoned decision. Also, it is further contended that Shekhar was not charged merely on the ground of presence alone, following reasons were given by the honorable Court: 

Both (Shekhar and Shyama) of them were well aware of circumstances and consequences of their delinquent acts.



Both were capax of committing the crime.



Both were acting in common consensus.



The case was proved beyond reasonable doubts.

It is contended by the respondents that Shekhar had worked in furtherance of the common intention to commit the offences against Ravi and Vanita. In order to attain his common final object of taking revenge from Ravi against the long lasting animosity.

To attract the application of section 34 the following 3 conditions must exist: 1. Criminal act must be done by several persons; 2. There must be common intention of all to commit that criminal act; 3. There must be participation of all in the commission of offence in furtherance of

that common intention21.

The first element is well proved. Several persons contended here are Raju, Ranveer, Shyama and Shekhar. In furtherance of the common intention, several persons must have

21

Parichat v. State of Madhya Pradesh, Pradesh, AIR 1972 SC 535.

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done several acts which together constitute an offense. In such a situation S.34 provides for each to be liable for the entire enti re act as a whole 22.

3.1 THERE WAS THE COMMISSION OF AN ILLEGAL ACT

It is not necessary to prove an overt act by a particular person in order to convict the person. Criminal act done by all or one of them in furtherance of the common intention of all would suffice to convict all the people 23. It is contended that the criminal act of murder was done by all the four accused in the furtherance of their common intention. Lastly, culpability of a person under S. 34 cannot be excluded merely because he was not present at the scene of the occurrence of the particular offense for which he has been charged24.

3.2 THERE MUST BE COMMON INTENTION OF ALL TO COMMIT A CRIMINAL ACT

It is presumed that every sane person intends the res ult that his action normally produces and if a person hits another on a vulnerable part of the body, and death occurs as a result, the intention of the accused can be no other than to take the life of the victim and the offence committed amounts to murder 25. The intention to cause damage or injury to either public or any person has to be there. Intention connotes a conscious state in which mental faculties are roused into activity and summoned into action for the deliberate purpose of being directed towards a particular and specified act. Intention has been

22

Dhansai v. State of Orissa, Orissa, AIR 1969 Ori 105.

23

State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC)

24

Tukaram Ganpet Pandave v. State of Maharashtra , AIR 1974 SC 514.

25

(1951) 3 Pepsu LR 635.

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defined as the fixed direction of the mind to a particular object, or a termination to act in a particular manner. So, the intention of the t he person can be gathered from the action of the person26 Shekhar had animosity since childhood with Ravi. Shekhar and Shyama had shared the hatred for Ravi and Vanita. Which is enough to show that Shekhar had intention to take revenge from Ravi and Vanita by any means. Common intention comes into being prior to the commission c ommission of the act in point of time 27. Therefore, there needs to be a prior plan to commit a crime. This pre-arranged plan however need not be an elaborate one 28. A mere existence of a pre-arranged plan that the offense be conducted is enough to satisfy this element. In most circumstances, proof of common intention has to be inferred from the act or conduct or other relevant circumstances of the case at hand29.

Moreover, the intention to kill is not required in every case, mere knowledge that natural and probable consequences of an act would be death will suffice for a conviction under s. 302 of IPC 30. The common intention must be to commit the particular crime, though the actual crime may be conducted by anyone sharing the common intention 31. Therefore, it is contended by the prosecution that while the act of murder was conducted in furtherance of the common intention between the two accused which can be inferred

26

Kesar Singh v. State of Haryana, Haryana, (2008) 15 SCC 753.

27

Sharif Ahmad Alias Achhan, Achhan, (1956) 2 All 188.

28

Bhopal Singh Bhopal Singh v. State of Rajasthan AIR Rajasthan AIR 1968 Raj 305.

29

Maqsoodan v. State of UP , 1983 Cr LJ 218 (SC).

30

Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)

31

Hardev Singh v. State of Punjab, AIR Punjab, AIR 1979 SC 179.

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from their frequent discussions on what it would mean if Ravi were to die one day, a common intention to commit the offense of murder.

3.3 THERE MUST BE PARTICIPATION OF ALL IN THE COMMISSION OF OFFENCE IN FURTHERANCE OF THAT COMMON INTENTION.

The principle of Common Intention embodies the concept of Joint Liability and says that all those persons who have committed a crime with a common intention and have acted while keeping in mind the common intention, should be liable for the acts of another done in common intention as if the act is done by the person alone 32. The ‘common intention’ implies impl ies a prior concert, that is, a prior meeting of minds and participation of all the members of the group in the execution of that plan33. Common intention also means a desire to commit a criminal act without any contemplation of offence34. It deals with doing of several acts, similar or diverse in furtherance of common intention 35. Direct proof of common intention is seldom sel dom therefore intention could be inferred from circumstances. The court must draw inferences based on the premises presented by the Prosecution36. In the immediate matter, the circumstances undeniably point towards existence of a pre-arranged plan on part of the accused to make the murder look sudden but natural and thus are guilty of the aforementioned offences. offences.

32

Union of India & Ors v. Sunil Kumar Sarkar , Sarkar , (2001) 3 SCC 414.

33

Pandurang Tukia and Bhillia v. State of Hyderabad , AIR 1955 SC 331.

34

Akanda v. Emperor, AIR Emperor, AIR 1944 Cal 339.

35

State of M.P v. Desh Raj , (2004) 13 SCC 199.

36

Idris Bhai Daud Bhai v. State of Gujarat, 2003 Gujarat, 2003 SCC 277.

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As per para 5 of the fact sheet it is mentioned that t here were four persons, two of them were tightly holding Vanita and other two were tr ying to outrage her modesty. Even if, Shekhar was holding Vanita cannot be the ground to save him from the crime that he has committed. It is humbly submitted before this honorable Court that, his plea of merely present at the crime scene is wrong and denied. The accused was present at the crime scene in pursuance of a pre-planned act of taking revenge. It is his hatred and animosity due to to which he committed such a heinous offence. It is pertinent to mention again that, Shekhar became so ambitious with the hatred against Ravi and Vanita that, he started discussing the same with their servant.

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4. WHETHER THE ACT IS IN CONTRAVENTION WITH THE CONSTITUTION OF INDIANA.

It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile Justice (Care and Protection of Children) Act. 2015 ( hereinafter as Act.) is very much in consonance with the provisions of the Constitution of Indiana. All the children in the age group of 16-18 years are treated equally and no two children in the age group of 16-18 years who commit a heinous offence are proposed to be treated differently differentl y under the current Act. Hence, there will be not differential treatment of such children on any ground.

The new Act establishes a more robust, effective and responsive legislative framework for children requiring care and protection, as well as children in conflict with law. Its provisions responded to the perceptions, percepti ons, articulated by a wide cross-section of society for the need to have an effective and strengthened system of administration of juvenile justice, care and protection37. The Supreme Court strongly emphasized for a development in the current legislation of relating to juvenile offender in the case of Gaurav Kumar v. The State of Haryana 38. The court observed that, “The rate of crime and the nature of crime in which the juvenile are getting involved for which the Union of India and the State Governments are compelled to file cases before this Court to which the learned Attorney General does not disagree, have increased. A 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

37

Amendments to the Juvenile Justice (Care and Protection of Children) Bill , Bill , Press Information Bureau, 2015.

38

2015 (4) SCALE5 31.

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provisions under under the Act Act can be re-looked, re-scrutinize and re-visited, at least in respect of offences which are heinous in nature”. The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly defined and classified offences as petty, serious and heinous, and defined differentiated processes for each category. Keeping in view the increasing number of serious offences being committed by persons in the age group of 16-18 years and recognizing the rights of the victims as being equally important as the rights of juveniles, special provisions have been made in the new Act to tackle heinous h einous offences committed by individuals in this a ge group 39. In recent years, there has been a spurt in criminal activities by adults, but not so by juveniles, as the materials mat erials produced before us show 40. In the case of State of Tamil Nadu Vs. K. Shyam Sunder 41 , the court emphasized that, “Merely “Merely because the law causes hardships or sometimes results in adverse consequences, it cannot be held to be ultra vires the Constitution, nor can it be struck down ”.

4.1 THE ACT IS IN CONSONANCE WITH THE CONSTITUTION OF INDIANA.

The present act which has been amended is very well in consonance with the Articles of the Constitution of Indiana. Further, the Section 3 under the General Principles of Care and Protection of Children of the Act. states that there shall be no discrimination

39

Press Note of Union Ministry of Women and Child Development, Development, Press Information Bureau, 2014.

40

Salil Bali v. Union of India & Anr., (2013) 7 SCC 705.

41

(2011) 8 SCC 737.

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against a child on any ground including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment to every child 42. Therefore, the Act. is in consonance with Article 15 which prohibits discrimination on grounds of religion, race, caste, sex or place of birth. The procedures for treatment of children who commit heinous crimes in the age group of 16 to 18 years are well laid down in the Act. There is no arbitrariness in the current Act. with with regard to procedure. So, there is no violation of article 21 of the Constitution which provides for right to life and personal liberty. Elaborate statistics have been laid before us to show the extent of serious crimes committed by juveniles and the increase in the rate of such crimes 43. Also, if mature and cognitive individuals are given the armour of a Special Law allowing them to commit offences under the Indian Penal Code without any liability, they would breed within themselves enraged criminals with psychotic tendencies. Fake birth certificates would throng and act as a weapon of defence against prosecution for their wrongdoings. w rongdoings. This is against the principles of natural justice and against the nature of an intelligent civilized society. The ultimate aim of juvenile justice system is to rehabilitate the offender rather than to exterminate him from the society. However, a pers on capable and mature to understand his actions and its consequences, while committing the depravity of sin, if shields himself under the false sheath of law, it does infringe jus infringe jus naturale.

42

Section 3(x), Juvenile Justice (Care and Protection of Children) Act. 2015 – Principle Principle of Equality and Non-

Discrimination. 43

Subramanian Swamy v. Raju, Raju , (2014) 8 SCC 390. 390 .

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4.2 THE ACT IN CONSONANCE WITH THE INTERNATIONA INTERNATIONAL L PRINCIPLES IN RESPECT OF JUVENILES

The Republic of Indiana is a signatory to various conventions which protect the rights of Children. The United Nations Convention on Rights of Child (hereinafter as UNCRC) was ratified by the Republic of Indiana in 1992 and the 2000 Act was consequently brought in to adhere to the standards set by the Convention. Specifically, it is pointed out that the practice of statutory exclusion which ensures that perpetrators of certain grave offences are prosecuted as adults; ‘judicial waiver’, granting discretion to special juvenile courts to waive jurisdiction and transfer the juvenile’s case to an ordinary court of law and also the policy polic y of concurrent jurisdiction of both the ordinary and juvenile courts giving discretion to the prosecutor to initiate proceedings in the more suitable court are followed in foreign jurisdictions 44.

The Act. Of 2015 maintains this aim and seeks to improve implementation and procedural delays experienced by the 2000 Act. The UNCRC states that signatory countries should treat every child under the age of 18 years in the s ame manner and not try them as adults. However, many other countries who have also ratified the Convention try juveniles as adults, in case of certain crimes. These countries include the UK, France, Germany, etc. The United States is not a signatory to the UNCRC and and also treats juveniles as adults in case of certain crimes

.

The provisions of various countries cannot be overlooked while dealing with such a sensitive issue. In United Kingdom, Kingdom, “Extended” custodial sentences are given to young

44

Ibid.

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persons if their crime cri me is so serious that no other alternative is suitable, or if the young person is a habitual offender, or if the Judge thinks the person person is a risk to public safety.

In United States of America, 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 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. In Nepal, the minimum age of criminal responsibility is 10 years. A child is a person below 16 years. years. A person between 16-18 16-18 years are charged and tried as adults under the judicial system of Nepal.

Also, Countries like U.K. Canada and USA have departed from the obligations under the UN Convention. The countries who are a signatory to the convention have certain international commitments. However, by only becoming a mere signatory to the convention does not make any country legally bound to follow the provisions of the convention. It is only when then country has ratified such provisions, it becomes legally bound to abide by them.

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PRAYER

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

1. Dismiss this Special Leave Petition. 2. Hold that the order of conviction passed by the Sessions Court and the Hon ’ ble ble High Court is correct. 3. Hold that the Juvenile Justice (Care and Protection of Children) Act. 2015 is in consonance with the Constitution of Indiana and International Conventions.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Justi ce, Equity and Good Conscience. And for this, the Respondent as in duty bound, shall humbly pray.

COUNSELS ON BEHALF OF THE RESPONDENT

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Winning Team MemoRespondent

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