Memorial On Behalf of The Appellants

[3rd Manipal Moot Court Competition] [2017]
TEAM CODE: M 160
3rd MANIPAL RANKA NATIONAL MOOT COURT COMPETITION 2017
IN THE HONOURABLE SUPREME COURT OF INDIA AT NEW DELHI
CRIMINAL APPEAL NO. ****/2016
IN THE MATTER OF
SHRI NAVEEN & ANOTHER v. STATE OF NCT DELHI & ORS.
APPELLANTS RESPONDENTS
CASE CONCERNING OFFENCES UNDER SECTION 376(2)(g), 302,120B,377,365,366,397,307,412,201

and 34 of IPC and sec 354(3) and 235 (2) of Crpc.
UPON SUBMISSION TO THE HON’BLE COURT AND HIS COMPANION JUSTICE OF THE
SUPREME COURTOF INDIA
Memorial on behalf of the Appellants

TETABLE OF CONTENTS
LIST OF ABBREVIATIONS…………..………………………………………..…..……….II
LIST OF AUTHORITIES………………………………………....………………………….....IV
ACTS AND STATUTES……………………………………………………………………….IV
BOOKS REFERRED……………………………………………………………………….…..VI
LIST OF CASES...........................................................................................................................IV
DICTIONARIES REFERRED………………………………………………………………....VII
WEBSITE REFERRED…………………………………………………………………….…VII
STATEMENT OF JURISDICTION……………………………………………………….…VIII
STATEMENT OF FACTS……………………………………………………………………..IX
QUESTIONS PRESENTED……………………………………………………………………XI
SUMMARY OF ARGUMENTS……………………………………………………………….XII
ARGUMENTS ADVANCED……………………………………………………………………1
1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT............................
A. DIFFERENT FORUMS FOR FILING APPEALS BYY THE ACCUSED AGAINST THE
ORDER OF CONVICTION....................................................................................................
(i) 374. Appeals from convictions..............................................................................................
B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL AND SUBSTANTIVE
(i)Requirement of the law that the hight courthas its own decisions,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
(a)Appeal : statutory right…………………………………………,,,,,,,,,,,,,,,,,,,,,,,,,,,,
C. CIRCUMSTANCES IN FILING APPEAL: LIMITATION ACT………………………

2. WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE

JAIL......6-16
A. INTERFERENCE WITH THE AGE OF JUVENILITY UNDER THE JUVENILE JUSTIE

ACT, 2000 (JJ ACT……………………………………………………………………………..
(i) whether the offence(s) allegedly committed by the juvenile is to be inquired into by the Board
(ii) The degree/level of mental maturity and irrespective of the gravity of the crime........................
B.THE PRACTICE OF STATUTORY EXCLUSION WHICH ENSURES THAT
PERPETRATORS OF CERTAIN GRAVE OFFENCES ARE PROSECUTED AS ADULTS;
‘JUDICIAL WAIVER.................................................................................................................
(i) Section 28 of the act read together with sec 15…………………………………………..
(a) The existence of the criminal justice system………………………………………………
b) The United Nations Convention on the Rights of the Child, 1990...................................
C. INTELLECTUAL MATURITY OF AN ADOLESCENT IS DIFFERENT FROM

EMOTIONAL OR SOCIAL MATURITY WHICH MAKES AN ADOLESCENT MATURE FOR
SOME DECISIONS BUT NOT FOR OTHERS................................................................
(i) Advantageous to now take note of the Juvenile Justice System working in other
jurisdictions...................................................................................................................................
(a) The Act replaces the criminal justice system in the country....................................................
(b) blanket/flat categorisation of all juveniles..............................................................................
(ii) For saving a statute from being struck down on account of its unconstitutionality...................
3.WHETHER THE CRIMINAL APPEAL FILED IN SUPREME COURT BY THE

ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHER.....16-22
(i) Delayed registration of FIR;………………………………………………….
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS

Page xvi
(ii) Non-mentioning of names of assailants in the F.I.R.;…………………………
(iii) Inconsistencies and omissions amounting to contradictions in the testimony of PW-

1……………………………………………………………………………
(iv) Recovery of the Car and other items on personal search and statements of disclosure
leading to recovery;…………………………………………..
(v) Admissibility and acceptability of the dying declaration of the prosecutrix when no
names were spelt out;………………………………………………………..
(vi) Insertion of the iron rod in the rectum and vagina after rape by all the convicts;
(vii) There was no criminal Conspiracy;’………………………………………………..
(viii) Age of Dinesh was 17 years and 10 months as per Matriculation School Certificate
against medical certificate of 18 years 8 months………………….
PRAYER……………………………………………………………………………….…….XV
WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS

xvii
TABLE OF CONTENTS
S.NO ABBREVATION FULL FORM

1 ¶ Paragraph
2 & And
3 AIR All India Reporter
4 Anr. Another
5 Art Article
6 CA Criminal Appeal
7 CIT Commissioner of Income Tax
8 Cr.LJ Criminal Law Journal
9 Cr. PC Code of Criminal Procedure
10 DW Defence Witness
11 FIR First Information Report
12 Gau Guwahati
13 HC High Court
14 i.e. That is
15 IPC Indian Penal Code
16 IEA Indian Evidence Act
17 Mad Madras
18 NCT National Capital Territory
19 Ors Others
20 P&H Punjab & Haryana
21 PW Prosecution Witness
22 SC Supreme Court
23 SCC Supreme Court Cases
24 SCR Supreme Court Record

xviii
25 SLP Special Leave Petition

26 UOI Union of India
INDEX OF AUTHORITIES
BOOKS
Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016) 3
Dr. CK Parikh, Textbook of Medical Jurisprudence, Forensic Medicine &

Toxicology, (6th Ed., CBS Publisher’s 2014) 5
Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis,
2010). 7
Dr. K.S. Narayana Reddy, The Essentials of Forensic Medicine & Toxicology
(33rd Ed., J.P. Publications, 2010) 9
H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law

Publication,2015) 18
J.P. Modi’s , A Textbook of Medical Jurisprudence & Toxicology, (25th Ed.,
Lexis Nexis , 2016) 6
Justice UL Bhatt, Lectures on Indian Evidence Act,(Universal
LawPublication,2015) 10
KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009)
23
KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd.,
2016) 24
MP Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016)
13

Page xix
Prof. Arthur Best, Wigmore on Evidence,(Aspen Publishers; 13-Volume

Ed.December 31, 1995) 7
Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II , Thomson
Reuters) 4
Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)
11
Ratanlal & Dheerajlal, Law of Evidence (25th Ed, Lexis Nexis, 2013)
20
Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis
2016) 21
R.V. Kelkar, Criminal Procedure, (5th Ed. 2011)
17
SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency, 2014 )
3
SC Sarkar, The Code of Criminal Procedure: An Encyclopaedic Commentary on
the Code of Criminal Procedure,1973 (11th Ed., Lexis Nexis, 2015) 19
V.N. Shukla's, Constitution of India, (12th Ed. Eastern Book Company, India
2013) 7
ACTS AND STATUES
THE CODE OF CRIMINAL PROCEDURE, 1973 11
THE INDIAN EVIDENCE ACT, 1872 10
THE INDIAN PENAL CODE, 1860 3

THE JUVENILE JUSTICE ACT 2000 19
SUPREME COURT AND OTHER COURT CASE

Page xx
CASE CONCERNING MAINTAINABILITY OF APPEAL
Akhtari Bi v. Bihar 06
Jagbir Singh v. State of Delhi 05
Kailash Raguvir vs State Of Gujarat 03
Panchi Nath v. State 04
State of Kamataka v. Bheemappa 02
Lokesh Kaushik & Ors. v. State, SC on 28th April, 2009
Mahmood v. State of UP, AIR 1976 SC 69 01
Mahavir Kumar & Ors. v. State, Delhi HC on 16th May, 2014 05
Md. Alimuddin And Ors. v. State Of Assam MANU/GH/0052/1992 04
Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182 03
Mohd. Nawaz v. Emperor AIR 1941 PC 132 05
Mohinder Singh v. State of Punjab, AIR 1965 SC 79 06
Naina Mohammed re, 1960 Cr.LJ 620 06
Nazuk Zahan v. Addl. DJ, AIR 1981 SC 1549 02
Palvinder Kaur v. The State of Punjab 1953 Cr.LJ 154 01
Pritam Singh v. State, AIR1950 SC 169 01
CASE CONCERNING JUVENILE OFFENDER
Dadu Vs. State of Maharashtra 09

Page xxi
Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Others 11
Cauvery (2) case 13
Essa @Anjum Abdul Razak Memon vs. State of Maharashtra 12
In Re, Special Reference No.1 of 20126 12
Kesho Ram and Others Vs. Union of India and Others 15
Mithu Vs. State of Punjab 10
Pratap Singh vs. State of Jharkhand and Another 14
Salil Bali vs. Union of India 17
United States v. Butler 15
U. Suvetha v. State, (2009) Cr.LJ 2974. 16
Vipin Jaiswal(A-I) v. State Of A.P. SC on 13 March, 2013 13
Vithal Eknath Adlinge v. State of Maharashtra, SC on 27th Feb, 2009 12
CASE CONCERCING FOLLOWING OBJECTIONS: CONVICT
Abraham Mallory Dillet re, (1887) 12 AC 459 18
Ali Jishan v. State of Kerala, on 26 November, 2009 19
Amar Singh v. State of MP, 1996 Cr.LJ 1582 (MP) 20
Anil Kumar Gupta vs. State of UP, 2011 Cr.LJ 2131 21
Aruna Chadha v. State of Delhi, CRL.REV.P. 305/2013 17
Arun Garg v. State of Punjab, (2004) 8 SCC 25. 17

xxii
Singh V. Union Of India & Ors 1977 SCC (1) 220. 19
Bishandas v. State of Punjab, AIR1975 SC573 21
Bhushan Sharma v. State of UP, 2001 Cr.LJ 1384 22
Bombay High Court - Aniruddha vs State on 21 November, 2009 19
Chanda Laxmi N. v. State of A.P, 1996 Cr.L.J. 2670 17
Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra, 1974 Cr.LJ 21

1044
Hari Dev Sharma vs State 20
Subramanian vs State Of TN 19
Mukesh & Anr. …Appellants Vs State for NCT of Delhi 18
DICTONARIES
Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006) 9

Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990) 13
WEBSITE
www.manupatrafast.in (Last visited on 7th August, 2016) 23
www.scconline.com (Last visited on 8th August,2016 ) 22

www.supremecourtofindia.nic.in (Last visited on 2nd August,2016) 18
www.westlawindia.com (Last visited on 5th August,2016) 10

xxiii
STATEMENT OF THE FACTS
CAUSE OF ACTION
The cold evening of Delhi on 16th December, 2015 the twenty two year medico namely Sunita,
who had gone with her friend Suneel, a medico, to watch a film at EP. A classic Car ‘Innova’
7seater, with all gadgets, bar, pillows and CC TV Camera etc. driven by a commerce graduate Shri
Naveen along with his three co-students named Ramesh, Suresh and Dinesh (minor) stopped and
offered them lift to drop at the girls hostel on JawaharLal Nehru Marg, which was readily accepted.
She got prey to the savage lust of this gang of four, who threw Suneel in a dense forest beyond
Jagatpura after robbing him and giving threats of murder, where he became unconscious, was
naked and all the four one by one assaulted her in the Car.
PROSECUTION WITNESS
Shri Suneel (PW-1) survived and Sunita was searched by the police was found unconscious and
naked, was provided with clothes and was carried to SMS Hospital and later to New Delhi. FIR
was filed on 20.12.2015 by (PW-1), which was handed over to S.I. Pratibha Sharma (PW-80) for
investigation. Charge sheet filed on 3.1.2016 under sections 376(2)(g), 302, 120-B, 377, 365, 366,
396, 397, 307, 412, 201 and 34 of IPC and Sections 354(3) and 235(2) of Cr. P.C.
VIEW OF TRIAL COURT
The learned trial Judge directed the sentences under Sections

20B/365/366/376(2)(g)/377/201/395/ 397/412 IPC to run concurrently and that the benefit under
Section 428 Cr.PC would be given wherever applicable.
VIEW OF HIGH COURT:
The High Court vide judgment dated 13.3.2017, affirmed the conviction and confirmed the death
penalty imposed upon the accused by expressing the opinion that under the facts and circumstances

xxiv
of the case, imposition of death penalty awarded by the trial court deserved to be confirmed in
respect of all the four convicts.Criminal appeals were filed before the Supreme Court by all the
convicts, which were consolidated. The convicts took following objections amongst others.
STATEMENT OF THE JURISDICTION
The Appellants have appeared before the Honourable SC of India in response to the appeal filed
by the Conviction under sec 374 (1) of the Criminal procedure Code, 1973.
SEC 374. APPEAL FROM CONVICTIONS
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven years
2 has been passed against him or against any other person convicted at the same trial], may appeal
to the High Court.1
(3) Save as otherwise provided in sub- section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate
of the first class, or of the second class, or
(b) sentenced under section 325,2 or
(c) in respect of whom an order has been made or a sentence has been passed under section 3603
by any Magistrate, may appeal to the Court of Session
1
Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016)
2
The Criminal Procedure Code, 1973
3
Ibid.
xxv
(a) Disposing of appeals
The memorandum for Appellants in the matters offset forth the Facts, Contentions and Arguments
present in this case.
STATEMENT OF ISSUES
1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT.
A. DIFFERENT FORUMS FOR FILING APPEALS BYY THE ACCUSED AGAINST

THE ORDER OF CONVICTION
B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL AND
SUBSTANTIVE
C. CIRCUMSTANCES IN FILING APPEAL: LIMITATION ACT
2. WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL
A. INTERFERENCE WITH THE AGE OF JUVENILITY UNDER THE JUVENILE

JUSTICE ACT, 2000 (JJ ACT)
B.THE PRACTICE OF STATUTORY EXCLUSION WHICH ENSURES THAT

PERPETRATORS OF CERTAIN GRAVE OFFENCES ARE PROSECUTED AS ADULTS;
‘JUDICIAL WAIVER.

EMOTIONAL OR SOCIAL MATURITY WHICH MAKES AN ADOLESCENT MATURE
FOR SOME DECISIONS BUT NOT FOR OTHERS
3. WHETHER THE CRIMINAL APPEAL FILED IN SUPREME COURT BY THE

ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHERS?
 DELAYED REGISTRATION OF FIR;
 NON-MENTIONING OF NAMES OF ASSAILANTS IN THE F.I.R.;

xxvi
 INCONSISTENCIES AND OMISSIONS AMOUNTING TO CONTRADICTIONS IN
THE TESTIMONY OF PW-1.
 RECOVERY OF THE CAR AND OTHER ITEMS ON PERSONAL SEARCH AND
STATEMENTS OF DISCLOSURE LEADING TO RECOVERY;
 ADMISSIBILITY AND ACCEPTABILITY OF THE DYING DECLARATION OF THE
PROSECUTRIX WHEN NO NAMES WERE SPELT OUT;
 INSERTION OF THE IRON ROD IN THE RECTUM AND VAGINA AFTER RAPE BY
ALL THE CONVICTS;
 THERE WAS NO CRIMINAL CONSPIRACY;
 AGE OF DINESH WAS 17 YEARS AND 10 MONTHS AS PER MATRICULATION
SCHOOL CERTIFICATE AGAINST MEDICAL CERTIFICATE OF 18 YEARS 8
MONTHS.

xxvii
SUMMARY OF ARGUMENTS
1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT.
An appeal is a request to a higher (appellate) court for that court to review and change the
decision of a lower court. (A) Because post-trial motions requesting trial courts to change their
own judgments or order new jury trials are so seldom successful, the defendant who hopes to
overturn a guilty verdict must usually appeal.(B) The defendant may challenge the conviction
itself or may appeal the trial court’s sentencing decision without actually challenging the
underlying conviction.(C)
the young offenders to become useful members of the society in later years, which sought
interference with the age of juvenility under the Juvenile Justice Act, 2000 (JJ Act).(A)
Explaining the scheme for trial and punishment under the JJ Act, the Court said that The JJ
Act does not do away or obliterate the enforcement of the law insofar as juvenile offenders are
concerned and that the same penal law i.e. Indian Penal Code apply to all juveniles.(B) The
Court further explained that the only difference is that a different scheme for trial and
punishment is introduced by the JJ Act in place of the regular provisions under the Code of
Criminal Procedure for trial of offenders and the punishments under the Indian Penal Code.(C)

ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHERS?

xxviii
As the argument commenced with the said note, we thought it appropriate to grant liberty to
the learned counsel for the appellants to challenge the conviction and the imposition of death
sentence from all aspects and counts and to dissect the evidence and project the irregularities
in arrest and investigation. Learned counsel for the parties argued the matter for considerable
length of time and hence, we shall deal with every aspect in detail.

xxix
ARGUMENTS ADVANCED
1. WHETHER THE APPEAL HIS MAINTAINABLE IN THIS COURT OR NOT?
An appeal is a request to a higher (appellate) court for that court to review and change the decision
of a lower court. (A) Because post-trial motions requesting trial courts to change their own
judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn
a guilty verdict must usually appeal.(B) The defendant may challenge the conviction itself or may
appeal the trial court’s sentencing decision without actually challenging the underlying
conviction.(C)
A. DIFFERENT FORUMS FOR FILING APPEALS BYY THE ACCUSED AGAINST

THE ORDER OF CONVICTION
The section provides three different forums for filing appeals by the accused against the order of
conviction. They are as follows:4
(1) If the trial is held by the High Court in exercise of its extraordinary original criminal
jurisdiction, an appeal would lie to the Supreme Court and not to a large Bench of Judges of that
High Court.5
(2) If the trial is held by the Sessions Judge or an Additional Sessions Judge, or by any other Court
in which sentence of imprisonment for more than seven years has been passed, an appeal would
lie to the High Court.6
(3) If the trial is held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of
the first or second class except in cases falling under Sections 325 and 360, an appeal will lie to
the Court of Session.
4
Vinay Vishan, The Practice of Law, http://thepracticeoflawjalan.blogspot.in/2012/04/crpc-appeal-against-
acquittal.html#!/2012/04/crpc-appeal-against-acquittal.html (10:15 am, 29//08/17).
5
Ibid.
6
Page 1
Where several persons have been convicted in a single trial by a Sessions Judge or by the
Additional Sessions Judge, all of them can file a joint appeal in the High Court and it is not
necessary for them to file separate appeals.7
(i) 374. Appeals from convictions.8
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven years
2 has been passed against him or against any other person convicted at the same trial], may appeal
to the High Court.9
(3) Save as otherwise provided in sub- section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate
of the first class, or of the second class, or
(b) sentenced under section 325,10 or
(c) in respect of whom an order has been made or a sentence has been passed under section 36011
by any Magistrate, may appeal to the Court of Session
(a) Disposing of appeals
While disposing of appeals from the sentences of the Sessions Court under this Section, the High
Court should specify the reasons for rejection of appeal and should not reject it summarily. This
7
Ibid.
8
The Criminal Procedure code, 1973.
9
Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016)
10
The Criminal Procedure Code, 1973
11
Ibid.
Page 2
will enable the Supreme Court to know the view of the High Court, in case the appellant moves
the Supreme Court in appeal.12
In this case Kailash Raguvir vs State Of Gujarat,13 Criminal Appeal No. 956 of 1985 is
preferred by accused No. 2-Kailash Raghuvir Mishra, under Section 374 of the Code of Criminal
Procedure against his conviction and sentence, as aforesaid. Criminal Appeal No. 1010 of 1985 is
preferred under Section 374 of the Code of Criminal Procedure by accused No. 1 - 14Jatashankar
Asharam Pande, Gitaben, wife of Jatashankar Asharam accused No. 3, and Rajkumari, wife of
Kailash Raghuvir-accused No. 4 against their conviction and sentence, as aforesaid.
Criminal Appeal No. 1238 of 1985 is preferred by the State against all the four accused under
Section 378 of Code of Criminal Procedure for acquittal of each of the accused for the offence
punishable under Section 302 to read with Section 34 of the Indian Penal Code.
Criminal Revision Application No. 541 of 1985 is preferred by informant complainant Shankar
Bhadriprasad Maurya against all the accused and the relief is claimed against the acquittal of all
the four accused for the offence punishable under Section 302 to read with Section 34 of the Indian
Penal Code while Criminal Revision Application No. 542 of 1985 has also been preferred by
informant complainant Shankar Bhadriprasad Maurya for the relief to enhance the sentences
awarded to each of the four accused.
In the case of State of Kamataka v. Bheemappa,15 the High Court allowing appeal against
conviction in a murder case, acquitted all the accused persons probably influenced by the false
accusations against some others, without appreciating the trial court’s reasoning for conviction.
The Supreme Court re-appreciated the evidence and set aside the acquittal and restored the
conviction of the accused.16
B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL AND

SUBSTANTIVE
12
. R.V. Kelkar, Criminal Procedure, (5th Ed. 2011)
13
AIR 1985 (2) SCC 2346.
14
Supra.
15
1994 SCC Sppl. (1) 2013 JT 1993.
16
Supra.
Page 3
For computing the sentence of imprisonment for seven years for the purpose of ascertaining the
appellate forum under Section 374 (2),17 the sentence in default of payment of fine is not to be
added to the substantive sentence of imprisonment.18
Thus where an accused was sentenced to seven years’ RI with a fine and in default of payment, to
suffer simple imprisonment for one month,19 the appeal filed against it could not be rejected by
the Sessions Court on the ground that substantive sentence of imprisonment and default sentence
of imprisonment, both added together was more than seven years. The appeal in the case clearly
lay to the Sessions Court and not to the High Court.20
(i) Requirement of law that the High court has to come to its own independent decision
An appeal or revision filed by the convict from jail must be forwarded by the Jail authorities by
providing legal aid to the convict.21 While dealing with reference, the High Court should consider
the proceedings in all their material aspects and arrive at an independent conclusion on the basis
of record different from that concluded by the Sessions Judge.22 It is the requirement of law that
the High Court has to come to its own independent decision.23
(a) Appeal : statutory right
The Supreme Court in Akhtari Bi v. Bihar, has observed in the context of Sections 37424 and 37825
as follows:
“The Court has time and again reminded that appeal being a statutory right, the trial Court’s verdict
does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be
continuing despite conviction.26
17
The Criminal Procedure Code, 1973.
18
Ibid.
19
Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006)
20
Ibid.
21
22
EBC (2014). Civil & Criminal Practice Manual Pocket Edition. Eastern Book Company. ISBN 978-93-5145-089.
23
Ibid.
24
25
Ibid.
26
Surendra Malik; Sudeep Malik (2015). Supreme Court on Death Sentence in Murder cases. Eastern Book
Company. ISBN 978-93-5145-209-6.
Page 4
It is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal
of criminal appeals, particularly such appeals where the accused are in jails,27 that the matters are
disposed of within the specified period not exceeding five years in any case and if the appeal is
not disposed of within the aforesaid specified period of 5 years, for no fault of the convicts, such
convicts may be released on bail on such conditions as may be deemed fit and proper by the
Court.”28
The Supreme Court in Jagbir Singh v. State of Delhi29 held that where the accused had made a
request only for reduction of sentence, he cannot be permitted to challenge the validity of his
conviction in the appellate Court.30
C. CIRCUMSTANCES IN FILING APPEAL: LIMITATION ACT
The Court further observed that the judgment of a Court being conclusive, if the party (prosecution
or defence) does not agree with the findings of the Court,31 he should bring it to the notice of the
Court then and there when the facts are being considered, and if he does not 32 raise any objection
when the facts or findings are being recorded by the Court, then the judgment given on the basis
of those facts would be conclusive and no appeal can be entertained on the question of facts.33
In the instant case, no objection was raised by the accused against his conviction by the Court of
Session,34 therefore the question of justifiability of sentence could not be reconsidered by the
appellate Court. Hence, the Supreme Court refused to interfere in the judgment of the Court
below.35
27
Ibid.
28
EBC (2015). Supreme Court Cases Back Volume- Full Set From 1970 to 2014 and 1 Vol of 2015 Total 81
Volumes. Eastern Book Company.
29
AIR 2016 (2) DHC 2345.
30
Ibid.
31
Hall, Jerome (1960). General Principles of Criminal Law. Lexis Law Pub. ISBN 0-672-80035-7.
32
Hart, H.L.A. (1968). Punishment and Responsibility. Oxford University Press. ISBN 0-19-825181-5.
33
Ibid.
34
Surendra Malik; Sudeep Malik (2015). Supreme Court on Criminal Procedure Code and Criminal Trial. Eastern
Book Company. ISBN 978-93-5145-223-2.
35
R.V.Kelkar's (Revised By K.N.Chandrasekharan Pillai) (2014). R.V.Kelkar's Criminal Procedure. Eastern Book
Company. ISBN 978-93-5145-101-3.
Page 5
In Panchi Nath v. State,36 the question of application of Section 5 of Limitation Act, 1963, 37
for
condonation of delay in filing appeal was before consideration of the High Court of Rajasthan. In
this case, the accused was convicted under Section 9 of the Wild Life Protection Act. No
application for suspension of sentence was moved on his behalf on the same day in trial Court. He
was, therefore, sent to judicial custody on the same day.38
When his son came to know about it, then he arranged money for expenses to be incurred in filing
appeal.39 The Court held that under these circumstances, a delay of 25 days in filing appeal was
liable to be condoned under Section 374 of the Code.40
The object behind treating the persons under 18 years of age as juveniles is to ensure their
rehabilitation in society and to enable the young offenders to become useful members of the society
in later years, which sought interference with the age of juvenility under the Juvenile Justice Act,
2000 (JJ Act).(A)
Explaining the scheme for trial and punishment under the JJ Act, the Court said that The JJ Act
does not do away or obliterate the enforcement of the law insofar as juvenile offenders are
concerned and that the same penal law i.e. Indian Penal Code apply to all juveniles.(B) The Court
further explained that the only difference is that a different scheme for trial and punishment is
introduced by the JJ Act in place of the regular provisions under the Code of Criminal Procedure
for trial of offenders and the punishments under the Indian Penal Code.(C)
A. INTERFERENCE WITH THE AGE OF JUVENILITY UNDER THE JUVENILE
JUSTICE ACT, 2000 (JJ ACT)
36
2006 CriLJ 361, RLW 2006 (2).
37
The Limitation Act, 1963.
38
Ibid.
39
Ibid.
40

Page 6
On 16th December, 2015 a young lady (22 years in age) and her friend were returning home after
watching a movie in EP. They boarded Innova car to undertake a part of the journey back hostel.
While the bus was moving, 4 persons brutally assaulted the young lady, sexually and physically,
and also her friend. Both of them were thrown out of the car.
The young lady succumbed to her injuries.41Four persons were apprehended in connection with
the crime. One of them, identified for the purpose of the present case as Dinesh, was below 18
years of age on the date of commission of the crime. Accordingly, in compliance with the
provisions of the Juvenile Justice Act, 200042 ( as amended and hereinafter referred to as ‘the Act’)
his case was referred for inquiry to the Juvenile Justice Board.
The other accused were tried in a regular sessions court and have been found guilty, inter alia, of
the offences under Section 376 (2)(g)43 and Section 302 of the Indian Penal Code, 1860 (for short
“the Penal Code”). 44
They have been sentenced to death by the learned trial court. Their appeal
against the aforesaid conviction and the sentence imposed has since been dismissed and the death
penalty has been confirmed by the High Court of Delhi.45
(i) whether the offence(s) allegedly committed by the juvenile is to be inquired into by the Board
or the juvenile
Before the Juvenile Justice Board to whom the case of Dinesh was referred for inquiry, the
petitioners had filed applications for their impleadment to enable them to ‘prosecute’ the juvenile
alongside the public prosecutor. The petitioners also claimed that, on a proper interpretation of the
Act, the juvenile was not entitled to the benefits under the Act but was liable to be tried under the
penal law of the land in a regular criminal court along with the other accused.46
However, insofar as the interpretation of the provisions of the Act for determination
of the question whether the offence(s) allegedly committed by the juvenile is to be inquired into
by the Board or the juvenile is required to be tried in a regular criminal court is concerned, 47 the
Board had expressed its inability to decide the same and had directed the petitioners to seek a
authoritative pronouncement on the said issue(s) from the High Court.
41
Fact sheet ∏1
42
The Juvenile Justice Act 2000
43
The Indian Penal Code 1860.
44
Ibid.
45
Fact sheet ∏ 9
46
Fact sheet 10
47
Wrobleski.M,Henry(2000) an introduction to law enforcement and criminal justice, Thomson learning,USA,pp-
540-541
Page 7
Laying down an authoritative interpretation of Sections 2(I) and 2(k) of the Act 48 that the
criterion of 18 years set out therein does not comprehend cases grave offences in general
and of heinous crimes against women in particular that shakes the root of humanity in
general. 49
50
That the definition of offences under Section 2(p) of the Act be categorized as per
grievousness of the crime committed and the threat of public safety and order.
(a) Alternative punishment and serious offences.
That Section 28 of the Act be interpreted in terms of its definition, i.e., alternative punishment and
serious offences having minimum punishment of seven years imprisonment and above be brought
outside its purview and the same should be tried by an ordinary criminal court. Incorporating in
the Act, the International concept of age of criminal responsibility and diluting the blanket
immunity provided to the juvenile offender on the basis of age. That the instant Act be read down
in consonance with the rights of victim as protected by various fundamental rights including
Article 14 and 21 of the Constitution of India.” 51
(b) Remedies available under the act.
“The Juvenile Justice Board the alternative remedies available under the Act52 should be exhausted
in the first instance and in the course thereof the question neither challenging the provisions of
Section 2(k)and 2(l) of the Act nor is he invoking the jurisdiction of the Court to strike down any
other.
provision of the Act or for interference of the Court to reduce the minimum age of juveniles fixed
under the Act as 18 years has contended is that having regard to the object behind the enactment,
the Act has to be read down to understand that the true test of “juvenility” is not in the age but in
the level of mental maturity of the offender. This, it is contended, would save the Act from
unconstitutionality and also further its purpose. 53
(ii) The degree/level of mental maturity and irrespective of the gravity of the crime
48
Ibid.
49
Chinte,C.l.(1949):fifty years of juvenile court. In M.Bell(Ed.)Current approaches to delinquency, New York:
National Probation and Parole Association.
50
Ibid.
51
The Constitution of India, 1950.
52
Ibid.
53
Reckless, Walter, hand book of practical suggestions for the treatment of adult and juvenile offenders, government
of India, 1956.
Page 8
The Act is not intended to apply to serious or heinous crimes committed by a juvenile. The
provisions of Sections 82 and 83 of the Indian Penal Code 54have been placed to contend that while
a child below 7 cannot be held to be criminally liable, the criminality of those between 7 and 12
years has to be judged by the level of their mental maturity.
The same principle would apply to all children beyond 12 and upto 18 years also, it is contended.
This is how the two statutes i.e. Indian Penal Code and the Act has to be harmoniously understood.
The provisions of Section 1(4) of the Act which makes the provisions of the Act applicable to all
cases of detention, prosecution and punishment of juveniles in conflict with law, to the exclusion
of all other laws, would be unconstitutional if the Act is not read down.55
(a) Level of their mental maturity
Specifically, contends that in that event the Act will offend Article 14 of the Constitution as all
offenders below the age of 18 years irrespective of the degree/level of mental maturity and
irrespective of the gravity of the crime committed would be treated at par. Such a blanket treatment
of all offenders below the age of 18 committing any offence, regardless of the seriousness and
depravity, is wholly impermissible under our constitutional scheme.56
The non-obstante provisions contained in Section 1(4) of the Act as well as the bar imposed by
Section 7 on the jurisdiction of the criminal court to try juvenile offenders cannot apply to serious
and heinous crime committed by juveniles who have reached the requisite degree of mental
maturity, if the Act is to maintain its constitutionality.
(b) Convention on the Rights of the Child.
Reliance is also placed on Essa @Anjum Abdul Razak Memon vs. State of Maharashtra 57 to
contend that the purport and effect of Section 1(4) of the Act must be understood in a limited
manner. By referring to the provisions of the United Nations Standard Minimum Rules for the
Administration of Juvenile Jice, 1985 (Beijing Rules); the Convention of the Rights of the Child,
1990 (CRC) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty,
58
international commitments entered into by India obliges it to set up a particular framework to
54
The Indian Penal code, 1860.
55
Ibid.
56
Black law dictionary, (1999), seventh edition, west group.
57
AIR 2011 SCC 2875
58
1990(Havana Rules 1 (2013) 3 SCALE 11)
Page 9
deal with juvenile offenders and such obligations can be more comprehensively met and
effectuated by understanding the Act in the aforesaid manner.
The practice in vogue in several foreign jurisdictions, particularly, in the U.K., USA and Canada
for adjudicating criminal liability of young offenders has also been placed before the Court.59
B. THE PRACTICE OF STATUTORY EXCLUSION WHICH ENSURES THAT

PERPETRATORS OF CERTAIN GRAVE OFFENCES ARE PROSECUTED AS
ADULTS; ‘JUDICIAL WAIVER
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 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 such
jurisdictions.
(i) Section 28 of the Act be read together with Section 15
Also suggested that Section 28 of the Act be read together with Section 15 to enable the
60
alternatively higher punishment under other State/Central enactments, such as the IPC to be
awarded to a juvenile offender. It is argued that this would incorporate the policy of concurrent
jurisdiction of both ordinary criminal courtsand JJ Boards. Reliance in this regard is placed on the
judgments of this Court in the case of Mithu Vs. State of Punjab and Dadu Vs. State of
Maharashtra.61 It is argued that what the Act contemplates in place of a regular criminal trial is a
non-adversarial inquiry against the juvenile where the prime focus is not on the crime committed
but on the reasons that had led the juvenile to such conduct.
(a) The existence of the criminal justice system
The maximum power of ‘punishment’, on proof of guilt, is to send the juvenile to a special home
for three years. The entire scheme under the Act being substantially different from what is provided
59
Ibid.
60
Caldwell: Criminology, p-357
61
2 (1983) 2 SCC 2773 (2000) 8 SCC 437.
WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS
10
by the Code of Criminal Procedure for investigation of offences and for trial and punishment of
offenders, it is submitted that the Act offends a core constitutional value namely, the existence of
a criminal justice system.
The proceedings against the juvenile Dinesh held by the JJ Board are, therefore, null and void and
the said juvenile is liable to be tried by a competent criminal court in accordance with the procedure
prescribed. In this regard, it is also submitted that the concept of double jeopardy under Article
20(3) of the Constitution and Section 300 of Penal Code62 will have no application inasmuch as
the proceedings before the JJ Board did/does not amount to a trial. Contentions somewhat similar
to what has been advanced by to explain the degree of constitutional flexibility that the Act would
enjoy however goes a step forward to contend that the decision in Salil Bali vs. Union of India 63
will not be an inhibition for the Court to answer the question(s) raised as not only the issues arising
64
in Salil Bali are different but the said decision is founded on an entirely different legal
perspective. what is contemplated by the Act is in furtherance othe country’s obligations arising
from a series of international conventions to which India is a signatory.
(ii) Legislative wisdom to treat all persons below18 as juveniles
The Act is an expression of legislative wisdom to treat all persons below

18 as juveniles and to have an alternate system of dealing with such juveniles who come into
conflict with law.
The constitutional validity of the Act has been upheld by a Coordinate Bench in Salil Bali (supra)
that psychological/mental, intellectual and emotional maturity of a person below 18 years cannot
be objectively determined on an individual or case to case basis and the fixation of the Minimum
Age of Criminal Responsibility 65
is a policy decision taken to give effect to the country’s
international commitments. the Act does not provide a blanket immunity to juvenile offenders, as
62
Ibid.
63
4 (2013) 4 SCC 705
64
Supra.
65
(MACR) under the Act
11
contended. What the Act contemplates is a different procedure to deal with such offenders. If found
guilty, they are subjected to a different scheme of punishment.
(b) The United Nations Convention on the Rights of the Child, 1990
The juvenile Dinesh, further submitted that the United Nations Convention on the Rights of the
Child, 1990 read with the concluding Resolution of the Committee on Child Rights (constituted
under the UN Convention) of the year 2000 qua India and the General Resolution of the year 2007
clearly contemplate the MACR as 18 years and mandates member States to act accordingly.
The strength of the elaborate academic and research work placed on record has tried to persuade
the Court to take the view that66 :- (1) Countries like U.K. Canada and USA have departed from
the obligations under the UN Convention and are in breach of their
international commitments. The incidence of crime by juveniles in those countries is very
high which is not so in India. It is submitted that, of late, a re-thinking on the issue is
discernible to demonstrate which reliance is placed on some recent pronouncements of the
US Supreme Court, details of which will be noticed hereinafter.67
Kesho Ram and Others Vs. Union of India and Others68 holding that, “the binding effect of a
decision of this Court does not depend upon whether a particular argument was considered or
subsequently was actually decided in the earlier decision…” (para 10)
the issue of res judicata was not even remotely raised before us. In the field of public law and
particularly when constitutional issues or matters of high public interest are involved, the said
principle would operate in a somewhat limited manner; in any case, the petitioners in the present
proceeding were not parties to the decision rendered in Salil Bali.69 Therefore, we deem it proper
to proceed, not to determine the correctness of the decision in Salil Bali
(supra) but to consider the arguments raised on the point of law arising. While doing so we shall
certainly keep in mind the course of action that judicial discipline would require us
to adopt, if need be.
66
The United Nations Convention on the Rights of the Child, 1990
67
Ibid.
68
5 (1989) 3 SCC 151
69
Supra
12
(b) self-imposed rule of judicial discipline
Though in a somewhat different context we may remind ourselves of the observations of the
Constitution Bench of this Court inNatural Resources Allocation, In Re, Special Reference No.1
of 2012670 extracted below:-“ The second limitation, a self-imposed rule of judicial discipline, was
that overruling the opinion of the Court on a legal issue does not constitute sitting in appeal, but is
done only in exceptional circumstances, such as when the earlier decision is per incuriam or is
delivered in the absence of relevant or material facts or if it is manifestly wrong and capable of
causing public mischief.
71
For this proposition, the Court relied upon the judgment in Bengal Immunity case wherein it
was held that when Article 141 lays down that the law declared this Court shall be binding on all
courts within the territory of India, it quite obviously refers to courts other than this Court; and that
the Court would normally follow past precedents save and except where it was necessary to
reconsider the correctness of law laid down in that judgment.
In fact, the overruling of a principle of law is not an outcome of appellate jurisdiction but
aconsequence of its inherent power. This inherent power can be exercised as long as a previous
decree vis-à-vis a lis inter partes is not affected. It is the attempt to overturn the decision of a
previous case that is problematic, which is why the Court observed that: [Cauvery (2) case 72 “85.
… Under the Constitution such appellate jurisdiction does not vest in this Court, nor can it be
vested in it by the President under Article 143.”73

EMOTIONAL OR SOCIAL MATURITY WHICH MAKES AN ADOLESCENT MATURE
FOR SOME DECISIONS BUT NOT FOR OTHERS
The issues arising and the contentions advanced therefore will have to be examined from the
aforesaid limited perspective which we are inclined to do in view of the importance of the questions
raised. 74It is further argued that intellectual maturity of an adolescent is different from emotional
70
6 (2012) 10 SCC 1 2
71
(AIR 1955 SC 661)
72
(1993 Supp (1) SCC 96 (2), SCC p. 145, para 85]
73
Ibid.
74
UNICEF(1985):united nations standard minimum rules for the administration of juvenile justice(Beijing Rules):
new Delhi, UNICEF
13
or social maturity which makes an adolescent mature for some decisions but not for others, a
position also highlighted by the Act which pre-supposes the capacity of a child under 18 to consent
for his adoption under Section 41(5) of the Act.75
On the said materials while the petitioners argue that the lack of uniformity of mental growth upto
the relevant age i.e. 18 years would justify individualized decisions rather than treating adolescent
as a class the opposite view advanced is that between the lower and the upper age, the age of 18
provides a good mid point of focus which may result in some amount of over-classification but
that would be inevitable in any situation and a mid point reduces the chances of over classification
to the minimum. These are the varying perceptions alluded to earlier.76
(i) Advantageous to now take note of the Juvenile Justice System working in other jurisdictions
It may be advantageous to now take note of the Juvenile Justice System working in other
jurisdictions. Pratap Singh vs. State of Jharkhand and Another.77 In other words, the Act must be
interpreted and understood to advance the cause of the legislation and to confer the benefits of the
provisions thereof to the category of persons for whom the legislation
has been made no attempt on his part to challenge the constitutional validity of
the Act, particularly, the provisions contained in Sections 2(k) and 2(l) of the Act and what he
seeks is a mere reading down of the Act.
It is not very difficult to understand the for the argument; to overcome what he perceives to be a
bar to a direct challenge on account of the decision of this Court in Salil Bali .78But if the argument
advanced if is to be carried to the fullest extent the implication is obvious.
(a) The Act replaces the criminal justice system in the country
If the Act is not to be read down, as urged, it will stand invalidated on grounds of
unconstitutionality. The argument, therefore, is really the other side of the same coin which has
been cast by who is more forthright in his challenge to the validity of the Act on the twin grounds
already noticed, namely, that the Act would result in over-classification if all juveniles, irrespective
75
Juvenile justice system & rights of child,(2003) Paryas institute of juvenile justice,pp. 9-20
76
UNICEF(1989):united nations convention on rights of the child(1989), new Delhi, UNICEF
77
10 (2005) 3 SCC 551
78
Supra.
14
of the level of mental maturity, are to be grouped in one class and on the further ground that the
Act replaces the criminal justice system in the country and therefore derogates a basic feature of
the Constitution.79
If the arguments are to be understood and examined from the aforesaid perspective, the conclusion
is obvious – what the Court is required to consider, apart from the incidental and side issues which
would not be of much significance, is whether the Act would survive the test of constitutionality
if the same is not to be read and understood in the manner urged. 80
(b) blanket/flat categorisation of all juveniles
Of course, if the constitutionality of the Act is to become suspect, the further question, as we have
already indicated, is what should be the course of action that would be open to this Coordinate
Bench in view of the decision in Salil Bali81 the relevant provisions of the Act i.e. Sections 1(4),
2(k), 2(l) and 782 must be read to mean that juveniles (children below the age of 18) who are
intellectually, emotionally and mentally mature enough to understand the implications of their acts
and who have committed serious crimes do not come under the purview of the Act. Such juveniles
are liable to be dealt with under the penal law of the country and by the regular hierarchy of courts
under the criminal justice system administered in India.83
This is what was intended by the legislature; a plain reading, though, shows an unintended
omission which must be made up or furnished by the Court. It is further urged that if the Act is not
read in the above manner the fall out would render the same in breach of Article 14 as inasmuch
as in that event there would be a blanket/flat categorisation of all juveniles, regardless of their
mental and intellectual maturity, committing any offence, regardless of its seriousness, in one
homogenous block in spite of their striking dissimilarities.84
(ii) For saving a statute from being struck down on account of its unconstitutionality
79
Ibid.
80
Kumar, Narender (2003) constitutional law of India, pioneer publication, Delhi
81
Supra.
82
supra
83
National crime records Bureau, Report, 2007, New Delhi.
84
Juvenile Delinquency, World Youth Report,2003,pp,200-201
15
A classification beyond what would be permissible under Article 14 in as much as the result of
such classification does not further the targeted object i.e. to confer the benefits of the Act to
persons below 18 who are not criminally responsible in view of the low level of mental maturity
reached or achieved. 85
This, in substance, is also the argument of the view of Sawant, J. (majority view) in Delhi Transport
Corporation vs. D.T.C. Mazdoor Congress and Others86 which succinctly sums up the position is,
therefore, extracted below. It is thus clear that the doctrine of reading down or of recasting the
statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from
being struck down on account of its unconstitutionality.87
It is an extension of the principle 88that when two interpretations are avowed object is to ensure
their rehabilitation in society and to enable the young offenders to become useful members of the
society in later years.89 India has accepted the above position and legislative wisdom has led to the
enactment of the JJ Act in its present form. If the Act has treated all under 18 as a separate category
for the purposes of differential treatment so far as the commission of offences are concerned, we
do not see how the contentions advanced by the petitioners to the contrary on the strength of the
thinking and practices in other jurisdictions can have any relevance.90
(a)Difference between the criminal justice system and the system for dealing with offenders under
the JJ Ac
In the earlier paragraphs of this report we have analyzed in detail the difference between the
criminal justice system and the system for dealing with offenders under the JJ Act.91 The Act does
not do away or obliterate the enforcement of the law insofar as juvenile offenders are concerned.
The same penal law i.e. Indian Penal Code apply to all juveniles. The only difference is that a
different scheme for trial and punishment is introduced by the Act in place of the regular provisions
under the Code of Criminal Procedure for trial of offenders and the punishments under the Indian
85
Ibid.
86
11 1991 Supp. (1) SCC 600The
87
Gabriela Mistral, Nobel Prize winning poet from Chile.
88
Ibid.
89
Ahuja, Ram (2000): social problems in India, Jaipur, Rawat publications, pp.342.
90
Ram Dhani: role of various agencies in combating juvenile delinquency, bureau of police research and
development, pp. 1-5
91
Ibid.
16
Penal Code. The above situation is vastly different from what was before the Court in Mithu 92and
also in Dadu (supra). In Mithu (supra) a separate treatment of the accused found guilty of a second
incident of murder during the currency of the sentence for an earlier offence of murder was held
to be impermissible under Article applicability of the provisions of Article 20(3) of the
Constitution and Section 300 of the Code of Criminal Procedure to the facts of the present case as
on the view that we have taken no question of sending the juvenile – Dinesh to face a regular trial
can and does arise.93
(b) Extent of serious crimes committed by juveniles
Before parting, we would like to observe that elaborate statistics have been laid before us to show
the extent of serious crimes committed by juveniles94 and the increase in the rate of such crimes,
of late. We refuse to be tempted to enter into the said arena which is primarily for the legislature
to consider.
Courts must take care not to express opinions on the sufficiency or adequacy of such figures and
should confine its scrutiny to the legality and not the necessity of the law to be made or continued.
Supreme Court of the United States has delineated these limitations in United States v. Butler
95
thus: “The power of Courts to declare a statute unconstitutional is subject to two guiding
principles of decision which ought never to be absent from judicial consciousness.
One is that Courts are concerned only with the power to enact statutes, not with their wisdom.96
The other is that while unconstitutional exercise of power by the executive and legislative branches
of the government is subject to judicial restraint, the only check upon our exercise of power is our
own sense of self-restraint For the removal of unwise laws from the statute books appeal lies not
to the Courts but to the ballot and to the processes of democratic Government.”97
92
Supra
93
Ibid.
94
The juvenile act, 2000.
95
(1936) 297 US 1
96
See National Capital Law Journal, vol-X-XI,2005-2006, Delhi university
97
Juvenile Justice Act, 2000, universal law publication, New Delhi.
17

ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHERS
As the argument commenced with the said note, we thought it appropriate to grant liberty to the
learned counsel for the appellants to challenge the conviction and the imposition of death sentence
from all aspects and counts and to dissect the evidence and project the irregularities in arrest and
investigation. Learned counsel for the parties argued the matter for considerable length of time and
hence, we shall deal with every aspect in detail.98
(i) Delayed registration of FIR;

Delay in setting the law into motion by lodging of complaint in court or FIR at police station is
normally viewed by courts with suspicion because there is possibility of concoction of evidence
against an accused.99 Therefore, it becomes necessary for the prosecution to satisfactorily explain
the delay.100
Bombay High Court - Aniruddha vs State on 21 November, 2009101 The inordinate delay in filing
F.I.R. can be one of the grounds to quash F.I.R. and further proceedings.
(ii) Non-mentioning of names of assailants in the F.I.R.;

The FIR does not contain:
(i) the names of the assailants either in the MLC, Ex.PW-51/A, or in the complaint, Ex.PW-1/A,
(ii) the description of the bus and
(iii) the use of iron rods.
The FIR does not whisper about the use of the iron rods. It is only a after thought to add this words.
If one part of the story of the prosecution is false the remaining part of the story should also be
false. 102
98
Ibid.
99
Fact sheet ∏12
100
Black's Law Lexicon, 4th Edn., p. 177
101
(2009) 4 SCC 654.
102
Fact sheet 13
18
Prosecution story–one part false–remaining also false
Hari Dev Sharma Last Para…The prosecution case was one integrated story
vs State 103 which the trial court had accepted. If the Court did not
find it possible to accept a vital part of the story, it is
difficult to see how the other part, which did not stand by
itself, could be accepted.
(iii) Inconsistencies and omissions amounting to contradictions in the testimony of PW-1.

After the incident, PW-1 and the prosecutrix were dragged to the front door (because the rear door
was jammed)104 and were pushed out of the moving bus opposite Hotel Delhi . 105
After being
thrown outside, the bus was turned in such a manner as to crush both of them but PW-1 pulled the
prosecutrix and himself out of the reach of the wheels of the bus and saved their lives.106
The statement of the informant, PW-1, was recorded by PW-74 in the early hours 107of 17.12.12.
There are contradictions among the witnesses. 108
Explanation probable and reasonable – Two Views
Subramanian vs Para 7:- The accused was made to believe that the payment
State Of TN109 was towards lease rent due to the temple, he cannot be said
to have committed any offence. If the reason for receiving
the amount is explained and the explanation is probable
and reasonable, then the appellant had to be acquitted,
103
(1977) 3 SCC 352
104
Supra
105
Ibid.
106
Bharti, Dalbir (2005). The Constitution and criminal justice administration. APH Publishing. p. 320.
107
Ibid.
108
Supra
109
Appeal(crl.)186 of 2000 Supreme Court
19
Para 10 .. If two views were possible from the very same

evidence, it cannot be said that the prosecution had proved
beyond reasonable doubt that the appellant had received the
sum of Rs. 200/- as illegal gratification.
(iv) Recovery of the Car and other items on personal search and statements of disclosure
leading to recovery;
The endeavour of the prosecution was to first check the route and get a clue of the bus. For the
aforesaid purpose, the CCTV footage becomes quite relevant. The story starts from the Select City
Walk Mall, Saket and hence,110 we have to start from there. As per the case of the prosecution, the
informant and the prosecutrix111 had gone to Select City Walk Mall, Saket to see a film. The CCTV
footage produced by PW-25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-1 and PW-25/C-2, and
the photographs, Ex.PW-25/B-1 to Ex.PW- 25/B-7, are evident of the fact that the informant and
the prosecutrix were present at Saket till 8:57 p.m.
(v) Admissibility and acceptability of the dying declaration of the prosecutrix when no names
were spelt out;
At this stage, it would be immensely seemly to appreciate the acceptability and reliability of the
dying declaration made by the prosecutrix. The circumstances in this case, as is noticeable, makes
the prosecution bring in three dying declarations.112 the three dying declarations made by the
prosecutrix vary from each other and the said variations clearly reveal the inconsistencies The
sudden appearance of the name ‘Vipin’ in the third dying declaration after the recording of
Akshay’s disclosure statement where he mentions a person named Vipin is alleged to be indicative
of the fact that the dying declaration is, in fact, doubtful.113
110
Ibid.
111
Ibid.
112
Ibid.
113
Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47: 1978 SCC (Cri) 485, 488
20
Supreme Court of India - Kushal Rao vs The State Of Bombay on 25 September, 1957 114Question
of fact Dying declaration evidiantry value of - It must be corroborated in order to sustain
conviction Constitution of India, Art. 134(1)(c)- Indian Evidence Act It may also be shown by
evidence that a dying declaration is not reliable because it was not made at the earliest opportunity,
and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying
man, when his power of resistance against telling a falsehood was ebbing away; or because the
statement has not been properly recorded, for example, the statement bad been recorded as a result
of prompting by some interested parties or was in answer to leading questions put by the recording
officer, or, by the person purporting to reproduce that statement. These may be some of the circum-
stances which can be said to detract from the value of a dying declaration.115
(vi) Insertion of the iron rod in the rectum and vagina after rape by all the convicts;
we shall advert to the contentions raised as regards the use of iron rod for causing recto-vaginal
injury. 116
The case of the prosecution is that the accused, in most inhumane and unfeeling manner, inserted
iron rod in the rectum and vagina of the prosecutrix and took out the internal organs of the
prosecutrix from the vaginal and anal opening while pulling out the said iron rod. They also took
out the internal organs of the prosecutrix by inserting iron rod in the vagina of the prosecutrix
thereby causing dangerous injuries. the use of iron rods by the accused on the ground that the
informant as well as the prosecutrix did not mention about the use of iron rods in their first
statements. The main contention of the accused is that the prosecutrix herself, in her first statement
given to Dr. Rashmi Ahuja, PW-49, Ex. PW-49/A, failed to disclose the use of iron rods.117
(vii) There was no criminal Conspiracy;
114
Equivalent citations: 1958 AIR 22, 1958 SCR 552
115
Ibid.
116
Ibid.
117
Fact sheet ∏16
21
The next aspect that we intend to address pertains to criminal conspiracy. The accused persons
before us were charge-sheeted for the offence of criminal conspiracy within the meaning of Section
120A IPC 118apart from other offences. The trial court found all the accused guilty of the offence
under Section 120B IPC. The proviso to Section 120A engrafts a limitation that no agreement
except an agreement to commit an offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such agreement in pursuance thereof.119
The ingredients of the offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act
which is not illegal in itself but is done by illegal means.
To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an
act by illegal means is the first and primary condition and it is not necessary that all the conspirators
must know each and every detail of the conspiracy.120
A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and
the court may consider the entire mass of evidence against every accused. Prosecution has to
produce evidence not only to show that each of the accused has knowledge of object of conspiracy
but also of the agreement.121
118
The Indian Penal Code, 1860.
119
Ibid.
120
Ibid.
121
Mowu v. Suptd., Special Jail, 1972 SCC (Cri) 184, 189:(1971) 3 SCC 936
22
(viii) Age of Dinesh was 17 years and 10 months as per Matriculation School Certificate
against medical certificate of 18 years 8 months.
The matriculation school certificate ought to be considered. Diensh ought to be sent to the juvenile
court only. Mukesh & Anr. …Appellants Vs State for NCT of Delhi…122Respondents In this case
the Supreme Court had upheld that the minor accused shall be sent to juvenile court only.
122
CRL A. NOS. 607-608 OF 2017
16
PRAYER
Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments advanced, it
is most humbly prayed and implored before the Honourable Court, that it may be graciously
pleased to adjudge and declare that -
1. The appeal is maintainable in this hon’ble court.
2. The juvenile offender to convict in jail is unlawful.
3. The above objection raised is valid in accordance with the law.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity & Good Conscience.
For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.
Date: ……………………
Place ………………… sd/-
(Counsel for Appellants)

xv

Memorial On Behalf of The Appellants

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[3rd Manipal Moot Court Competition] [2017]

TEAM CODE: M 160

3rd MANIPAL RANKA NATIONAL MOOT COURT COMPETITION 2017

IN THE HONOURABLE SUPREME COURT OF INDIA AT NEW DELHI

CRIMINAL APPEAL NO. ****/2016

SHRI NAVEEN & ANOTHER v. STATE OF NCT DELHI & ORS.

CASE CONCERNING OFFENCES UNDER SECTION 376(2)(g), 302,120B,377,365,366,397,307,412,201

Memorial on behalf of the Appellants

ACTS AND STATUTES……………………………………………………………………….IV

1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT............................

B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL AND SUBSTANTIVE

(a)Appeal : statutory right…………………………………………,,,,,,,,,,,,,,,,,,,,,,,,,,,,

C. CIRCUMSTANCES IN FILING APPEAL: LIMITATION ACT………………………

2. WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE

A. INTERFERENCE WITH THE AGE OF JUVENILITY UNDER THE JUVENILE JUSTIE

(i) Section 28 of the act read together with sec 15…………………………………………..

(a) The existence of the criminal justice system………………………………………………

b) The United Nations Convention on the Rights of the Child, 1990...................................

C. INTELLECTUAL MATURITY OF AN ADOLESCENT IS DIFFERENT FROM

(b) blanket/flat categorisation of all juveniles..............................................................................

3.WHETHER THE CRIMINAL APPEAL FILED IN SUPREME COURT BY THE

(i) Delayed registration of FIR;………………………………………………….

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS

(ii) Non-mentioning of names of assailants in the F.I.R.;…………………………

(iii) Inconsistencies and omissions amounting to contradictions in the testimony of PW-

(vii) There was no criminal Conspiracy;’………………………………………………..

WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS

S.NO ABBREVATION FULL FORM

WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS

25 SLP Special Leave Petition

Dr. CK Parikh, Textbook of Medical Jurisprudence, Forensic Medicine &

H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS

Prof. Arthur Best, Wigmore on Evidence,(Aspen Publishers; 13-Volume

ACTS AND STATUES

THE CODE OF CRIMINAL PROCEDURE, 1973 11

THE INDIAN EVIDENCE ACT, 1872 10

THE INDIAN PENAL CODE, 1860 3

SUPREME COURT AND OTHER COURT CASE

CASE CONCERNING MAINTAINABILITY OF APPEAL

Jagbir Singh v. State of Delhi 05

Kailash Raguvir vs State Of Gujarat 03

Panchi Nath v. State 04

State of Kamataka v. Bheemappa 02

Lokesh Kaushik & Ors. v. State, SC on 28th April, 2009

Mahmood v. State of UP, AIR 1976 SC 69 01

Mahavir Kumar & Ors. v. State, Delhi HC on 16th May, 2014 05

Md. Alimuddin And Ors. v. State Of Assam MANU/GH/0052/1992 04

Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182 03

Mohd. Nawaz v. Emperor AIR 1941 PC 132 05

Mohinder Singh v. State of Punjab, AIR 1965 SC 79 06

Naina Mohammed re, 1960 Cr.LJ 620 06

Nazuk Zahan v. Addl. DJ, AIR 1981 SC 1549 02

Palvinder Kaur v. The State of Punjab 1953 Cr.LJ 154 01

Pritam Singh v. State, AIR1950 SC 169 01

CASE CONCERNING JUVENILE OFFENDER

Dadu Vs. State of Maharashtra 09

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS

Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Others 11

Cauvery (2) case 13

Essa @Anjum Abdul Razak Memon vs. State of Maharashtra 12

In Re, Special Reference No.1 of 20126 12

Kesho Ram and Others Vs. Union of India and Others 15