8 Fylc Ranka National Moot Court Competition, 2018

8th FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2018
8th FYLC- RANKA NATIONAL MOOT COURT, 2018
IN THE HON’BLE SUPREME COURT OF INDIA
APPELLANT JURISDICTION S.L.P. NO.____/2018
IN THE MATTER OF ART.136 OF THE CONSTITUTION OF INDIA Commented [D1]: Same as previous one
BRIJESH & OTHERS...............................................................................APPELLANTS
STATE OF RAJASTHAN & OTHERS...........…....................................RESPONDENTS
BEFORE SUBMISSION TO THE HON’BLE CHEIF JUSTICE AND HIS

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
MEMORIAL ON BEHALF OF THE APPELLANT
1
Memorial on behalf of the Appellant
TABLE OF CONTENTS
LIST OF ABBREVIATION ................................................................................................................. 3
INDEX OF AUTHORITIES ................................................................................................................ 5
STATEMENT OF JURISDICTION .................................................................................................... 8
STATEMENTS OF FACTS ............................................................. Error! Bookmark not defined.
ISSUES RAISED .................................................................................................................................11
SUMMARY OF ARGUMENTS .........................................................................................................12
ARGUMENTS ADVANCED..............................................................................................................13
ISSUE I.WHETHER CONSTITUTIONAL VALIDITY OF LIFE IMPRISONMENT BE

CHALLANGED. ..................................................................................................................................13
1.1 Violation of rights. .............................................................................................................................. 13
1.3. Chance of reformation should be given to the appellants. .................................................... 17
ISSUE 2. WHETHER THE FINE AND COMPENSATION IMPOSED IS JUSTIFIED. ..........20
2.1 Justification for levying fine and compensation to be given by Hon’ble Court. ............. 20
2.2. Compensation forms a part of fine under section 357(1) of CrPC, 1978. ........................ 22
2.3 State has to pay compensation to the victim under Section 357-A of CrPC, 1978. ....... 23
ISSUE 3. WHETHER THE PUNISHMET AWARDED TO JUVENILE IS JUSTIFIED. .........25
PRAYER ..............................................................................................................................................28
2
LIST OF ABBREVIATION
¶ Paragraph
AIR All India Reporter
Anr Another
Bom Bombay High Court
Cal Calcutta High Court
CCR Current Criminal Reports
Cri Criminal
CRLJ Civil Rights Law Journal
CRPC Criminal Procedure Code
Del Delhi High Court
Ed Edition
Guj Gujarat High Court
HC High Court
IC Indian Cases
IPC Indian Penal Code
JJ Juvenile Justice Act
LJ Law Journal
Ltd Limited
3
Mad Madras High Court
n. Foot Note no.
Ors. Others
Pat Patna High Court
S. Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
U.P Uttar Pradesh
v. Versus
4
INDEX OF AUTHORITIES
Cases
Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770..................................... 19

Avtar Singh v. Union of India, (2016) 8 SCC 471 .................................................................. 15
Bachan Singh v. State of Punjab, AIR (1980) SC 898 ............................................................ 17
Behram v. State of Bombay, 1955 CRI LJ 215 ....................................................................... 14
Commissioner of Police v. Sandeep Kumar, (2011) 4 SCC 644 ............................................. 15
D. Bhuvan Mohan Patnaik v. Sate of A.P, (1975) 3 SCC 185 ................................................ 12
D.B Mohan Patnaik v. State of A.P.,(1975) 2 SCR 24............................................................ 13
D.B. Patnaik v. State of Andhra Pradesh, (19075) 3 SCC185 ................................................ 16
Dharambir v. State (Govt of Nct) of Delhi, AIR (1996) SC 2983........................................... 23
Dilip S. Dahanukar v. Kotak Mahindra & Co. Ltd. & Anr., (2007) 6 SCC 528 ..................... 21
Dwigendra Das v. State of Assam, (2012) 3 Gau LR 1........................................................... 21
Every v. Miles, (1964) AC 261. .............................................................................................. 18
Gopal Vinayak Godse v. State of Maharashtra, (1961) AIR 600 ............................................ 15
Harikrishnan & State of Haryana v. Sukhbir Singh, (1998) AIR 2127 ................................... 18
Inhuman Conditions in 1382 Prison, In re (2017) 10 SCC 658 .............................................. 13
Jayavel v. The State Rep, (2012) MHC 385 ............................................................................ 24
Keshavan Madhava Menon v. State Of Bombay, 1951 AIR SC 128 ...................................... 14
Kirloskar Brothers Ltd. v. Employees' State Insurance Corpn., (1996) SCC 2 682 ................ 12
Machhi Singh v. State of Punjab (1983) 3 SCC 470 ............................................................... 16
Maneka Gandhi v. Union of India, (1978) 1 SCC 248. ........................................................... 13
Manohar Singh v. State of Rajasthan, (2015) 3 SCC 449 ....................................................... 19
Maya Devi through LRs & Ors. v. Raj Kumari Batra through LRs, (2010) 6 SCC 770 ......... 19
Mohammad Giasuddin v. State of Andhra Pradesh, (1977) AIR 1926 .................................. 16
Mohd. Chaman v. State (N.C.T of Delhi), (2001) 2 SCC 28 .................................................. 24
Munn v. Illinois, 94 US 113 (1876) ........................................................................................ 12
P.B. Aind v. State of Maharashtra, (1995) Cri LJ 1964 (Bom). .............................................. 18
Pamula Saraswathi v. State of A.P., AIR 2003 SC 2416 ........................................................ 21
Pratap Singh v. State of Jharkhand and Anr., (2005) 3 SCC 551 ............................................ 24
Queen Express v. Yamuna Rao, (1901) ILR 24 Mad 305, 307 ............................................... 21
Rajesh Kumar Yadav v. Union of India & Ors. (2017) 2 CLR 206 ........................................ 15
Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771 ........................................................ 15
S v Dodo (CCT 1/01) [2001] ZACC 16 (South Africa) .......................................................... 14
5
S v. Dodo, (2001) 1 SACR 594 (CC) (South Africa). ............................................................. 15

S. Mahdeshwaran v. State of Tamil Nadu, (2012) (Cri) I.j 4398 ............................................ 24
Salil Bali v. Union of India, (2013) 7 SCC 705 ...................................................................... 25
Sangeet v. State of Haryana, (2013) 2 SCC 452 ..................................................................... 17
Sarwan Singh v. State of Punjab, (1957) AIR 637 .................................................................. 19
Sebastian v. State of Kerala, (1992) Cr LJ 3642 (Ker)............................................................ 19
Shankar Kisanrao Khade v. State of Maharshtra, (2013) SCC 5546....................................... 16
Shyokaran And Ors. Etc. Etc. v. State Of Rajasthan And Ors., (2008) Cri LJ 1265 (India)... 14
Sunil Batra v. Delhi Administration,(1978) CRI LJ 1741....................................................... 12
The State of Karnataka, Police Sub-Inspector, Pattanayakanahalli Police Station, sira Taluk v.
Rangaswamy, (2016) 2 KCCR 1248 ................................................................................... 21
Umesh Chandra v. State of Rajasthan, 2 (1982) 2 SCC 202 ................................................... 24
UOI and Ors v. Deepak Kumar Mahala, AIR (2014) RJ 515.................................................. 24
Vinay Tiwari v. The State Of Madhya Pradesh, AIR (2018) MP 3125 .................................. 24
X Minor The Father Natural v. State of Ors., (2012) SCC Delhi 2174 ................................... 24
Statutes
Article 1 of the Universal Declaration of Human Rights, 1948 .............................................. 11

Article 10(3) of International Covenant on Civil and Political Rights, 1966. ......................... 17
Article 6 of International Covenant on Civil and Political Rights, (1966) .............................. 12
Constitution of India, 1950. ..................................................................................................... 12
rticle 3 of the Universal Declaration of Human Rights, 1948 ................................................. 12
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India). ................. 20
The Code of Criminal Procedure, 1973, No. 5, Acts of Parliament, 2009 (India) .................. 21
The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2, Acts of Parliament,
2016 (India). ........................................................................................................................ 23
Other Authorities
154th Law Commission Report. ............................................................................................... 21

March 24, 2013 Dainik Bhaskar ............................................................................................. 14
International Reports
Ananth Kini, A Critique On Prisons In India In The Light Of Re – InhumanConditions In

1382 Prisons, II ILI Law Review, 71-3 (2017) ................................................................... 14
Dan Van Zyl Smit, Life imprisonment as an ultimate penalty in International law: A human
rights prospective, 9 CLF 26, 45 (1999).............................................................................. 15
6
Dirk Van Zyl Smit, Outlawing Irreducible Life Sentences: Europe on the Brink, Federal
Sentencing Reporter, Vol. 23, No. 1, Life Without Parole (October 2010), 39-48 ............. 15
G De baco, Life sentences and human dignity, 9 IJHR 411, 414 (2005). ............................... 17
G de Beco ‘Life sentences and human dignity’ The International Journal of ......................... 14
Books
Nirmal Kanti Chakrabarti, Adminstartion of Criminal Justice: Perception and Practice of

Correctional Services 195 (Nirmal Kanti Chakrabarti, 1997) ............................................. 17
7
STATEMENT OF JURISDICTION
“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
8
STATEMENT OF FACTS
BACKGROUND
Miss Gyanwati was a 20 year old college student studying in Commerce College,
Jaipur along with Dinesh, Mahesh and Suresh, whom she was close friends with. On
the night of 31.12.2017, Miss Gyanwati was returning from a New Year party on her
scooty, when it was knocked down and she was kidnapped on gun point by Suresh,
Mahesh and Dinesh who then carried her in a Honda City car to a distant lonely place
in the interior of Tonk Road. Two students named Gyanesh and Virender (minor)
were already waiting there in the room where she was carried to where all five of
them drank Scotch Whiskey and forcibly made her naked. She was tied with black
rope and thereafter raped by all five of them. They all left the victim naked after
raping her under the surveillance of Virender and tied with iron chains.
On 01.01.2018, At about 4 p.m, Suresh came along with Brijesh and raped her again
after having the whiskey. As a consequence of their actions, the victim became
unconscious and her uterus was ruptured with bruises on breast and other parts of the
body, On02.01.2018, Mahesh contacted the father of victim and informed about the
whereabouts of her daughter and threatened him to come to a particular place with
demanded ransom of Rs. 5 lacs, else she would be killed and her body will be thrown
into a pond.
On, 03.01.2018, The father of the victim was again contacted but this time by Brijesh
and specified him to come with the ransom alone near the hill side at 11:00 a.m. At
the specified place, the father was received by Dinesh and after the physical search
was sent to Mahesh where he handed over his phone and cash bag. Thereafter, he was
taken to the place where his daughter was kept and handed over. A warning was given
to not make any police report otherwise the consequences will be worse. Contrary to
the warning, the father of the victim, the mother of the victim and victim decided to
file an F.I.R against the accused.
F.I.R No. 10 dated 03.01.2018 came to be filed with the names of all the accused for
the offences under relevant Sections of IPC read with Sections of the Arms Act at
Chaksu Police Station and under Section 161 of CrPC statements of victim were also
9
recorded. Certain evidences and findings were recovered by the investigating agency.
The investigation agency arrested all five of them except brijesh, who was declared as
proclaimed offender. The arrested accused identified the victim, the recovered articles
but denied the charges.
On, 04.01.2018, SMS Hospital examined the victim and the medical report supported
rape and body injury and it was also learned that the victim will never be able to give
birth to a child. On the completion of investigation drill, charge sheet under Sections
376, 364A, 465, 468, 471, 120 B IPC and Sections 25/ 27 of the Arms Act was laid
against the accused for which they pleaded of being ‘not guilty’ and recorded the
same in their statements too under Section 313 of CrPC.
CONVICTION
Trial Court: On assessment of the evidence on record the Hon’ble Court convicted
all the accused under the aforementioned Sections. Accused were sentenced to go
under a rigorous imprisonment for life time with draconian fine and compensation
fixed upon them of Rs. 10,000 each and Rs. 50,00,000 jointly and severally
respectively without giving any justified reasoning for imposing such amount. State
Government was also directed to pay a sum of Rs. 10,00,000 to the victim.
Appellant Court: Appeal was filed but was dismissed with costs in the light of
overwhelming evidence oral and documentary. The factum of each discovery based
on the disclosures of the accused persons is not only a relevant fact under Section 27
of Evidence Act but the particulars of the calls regarding the demand of ransom has
also been admitted by the Court under Section 65B(4) of the Evidence Act.
PRESENT PETITION
The present petition has been filed by all the accused persons against the affirmation
by the Appellant Court. They have challenged constitutional validity of life
imprisonment and draconian levy of fine and compensation.Appeal has been admitted
by the Hon’ble Supreme Court and notices have been served to the victim, her father,
Centre Government, Rajasthan State, and all other States as to the appeal and in
regard to the constitutional validity of the provisions.
10
ISSUES RAISED
ISSUE 1. WHETHER THE PUNISHMENT OF LIFE IMPRISONMENT IS

CONSTITUTIONALY VALID.
1.1 Violation of Rights.

1.2 Chance of reformation should be given to appellants.
ISSUE 2. WHETHER THE FINE AND COMPENSATION IMPOSED IS

JUSTIFIED.
2.1 Justification for levying fine and compensation to be given by Hob’ble Court.
2.2 Compensation forms a part of fine under section 357(1) of CrPC, 1978.
2.3 State has to pay compensation to the victim under Section 357-A of CrPC, 1978.
ISSUE 3. WHETHER THE PUNISHMENT AWARDED TO JUVENILE IS

JUSTIFIED.
3.1 The punishment awarded to juvenile is not justified in law.
Commented [D2]: Same as last
11
SUMMARY OF ARGUMENTS
ISSUE 1.WHETHER CONSTITUTIONAL VALIDITY OF LIFE

IMPRISONMENT BE CHALLANGED.
It is humbly contended before this Hon’ble Supreme Court that the penalty of life
imprisonment is an unconstitutional and a draconian penalty as it grossly violates not
only the fundamental rights guaranteed to every citizen by virtue of our Constitution,
but also completely disregards the basic human dignity that is inherently possessed by
every human being and ignores the possibility of reformation of criminals that a
welfare state must inculcate.
ISSUE 2.WHETHER THE FINE AND COMPENSATION IMPOSED IS

JUSTIFIED.
It is humbly contended before this Hon’ble Court that the Hon’ble Sessions Court and
Appellant Court has completely disregarded the concept that compensation forms a
part of the fine which is to be given to the prosecutrix. No such justified reasoning
was given by the Hon’ble Courts for levying such draconian fine and compensation
and has completely neglected that the duty is imposed upon the State to rehabilitate
and pay the compensation for the loss and damages suffered the prosecutrix.
ISSUE 3. WHETHER THE PUNISHMENT AWARDED TO JUVENILE IS

JUSTIFIED.
It is humbly contented before the Hon’ble Supreme Court that the Hon’ble Session’s
Court and the Appellant Court has completely disregarded the provisions of the
Juvenile Justice (Care and Protection) Act, 2015 as they have tried the juvenile
appellant in a regular court of law and subsequently awarded him life imprisonment
which is against the very object of the Act.
12
ARGUMENTS ADVANCED
ISSUE 1.WHETHERCONSTITUTIONAL VALIDITY OF LIFE
IMPRISONMENT BE CHALLANGED.
It is humbly contended before this Hon’ble Supreme Court that the sentence of
Life imprisonment imposed upon the appellants is unconstitutional and violative
of not only Part III of the Constitution but also of Human Rights of the appellants.
This shall be put forth in a twofold manner [1.1] violative of human
rights[1.2]chance of reformation should be given to the appellants.
In the constitutional bench of the Apex Court, it has been held that life
imprisonment lasts till the last breath, and whatever the length remissions earned,
the prisoner can claim release only if the remaining sentence is remitted by
government1 and the Supreme Court made it clear that imprisonment for life does
not mean the term of imprisonment to be of 14 or 20 years.2 Commented [D3]: Irrelevant
1.1 Violation of rights. Commented [D4]: Heading complete
a. It is humbly contended before this Hon’ble Court that the imposition of

lifelong imprisonment, is till the last breath of the accused. 3 This implies a
restriction on the innate rights granted to the appellants as an Indian Citizens, both
under this Constitution as well as the basic Human Rights that every appellant and
for that matter even every criminal possesses.
b. All human beings are born free and equal in dignity and rights. Human
sensitivity and moral responsibility of every State 4 and that Article 3 of the
1
Maru Ram v. Union of India, 91981) 1 SCC 107
2
Kartik Biswas v. Union of India, AIR (2005) SC 3440
3
Ibid 1.
4
Article 1 of the Universal Declaration of Human Rights, 1948
13
Universal Declaration of Human Rights, 19485 assures everyone the right to life,
liberty and security of person. Every human being has an inherent right to life.6
This right shall be protected by law and all deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human
person. The Preamble of the Constitution of India, the Fundamental Rights and
Directive Principles constituting trinity, assure to every person in a Welfare State
social and economic democracy with equality of status and dignity of person.7
c. Even the vilest offender remains possessed of human dignity. 8 It is humbly

contended that all of the appellants in this case are Indian Citizens and despite the
repeated attempts of the State to paint a picture to the contrary, they are before all
Human Beings, and are inherently in possession of the basic enforceable
Fundamental Rights as well as Right to Human Dignity as well as that of Liberty
which are in grave danger of violation. The State being a Welfare State9, must
work towards the welfare of each of its citizens and cannot under Article 14,
distinguish between criminals and non-criminals when it comes to the
enforcement of the fundamental rights of the citizens, in the impugned case, the
appellants. Commented [D5]: Don’t mention this explicitly... otherwise
you guys will be f*U****
d. It is a well-established principle that even a convict is entitled to the precious

right guaranteed by Article 21 of the Constitution. 10 The term liberty construes
something more than just the mere freedom from physical restraint or the bond of
a prison.11 In the landmark case of Sunil Batra v. Delhi Administration12, the
court held that:
“Personal liberty as used in Article 21 has been held to be a
compendious term to include within itself all the varieties of rights
which go to make personal liberties of the man other than those dealt
5
Article 3 of the Universal Declaration of Human Rights, 1948
6
Article 6 of International Covenant on Civil and Political Rights, (1966)
7
Kirloskar Brothers Ltd. v. Employees' State Insurance Corpn., (1996) SCC 2 682
8
Gregg v. Georgia, 428 US 153 (1976)
9
Constitution of India, 1950.
10
D. Bhuvan Mohan Patnaik v. Sate of A.P, (1975) 3 SCC 185
11
Munn v. Illinois, 94 US 113 (1876)
12
Sunil Batra v. Delhi Administration,(1978) CRI LJ 1741
14
within clause (d) of Article 19 (1). The burden to justify the

curtailment thereof must squarely rest on the State”
e. The court furthered this point by relying on and quoting Maneka Gandhi v.
Union of India13, as follows:
“If a law depriving a person of personal liberty and prescribing a
procedure for that purpose within the meaning of Article 21 has to
stand the that of one or more of the fundamental rights conferred
under Article 19 which may be applicable in a given situation, ex
hypothesis it must also be liable to, be tested with reference to Article
14.” Commented [D6]: No need
f. It is humbly submitted before this court that since, convicts are not, by mere
reason of the conviction, denuded of all the fundamental rights which they
otherwise possess.14 The law is that for a prisoner all fundamental rights are an
enforceable reality, though restricted by the fact of imprisonment. 15 Not only,
Article 19 & 21 but Article 14, combining to form the Golden Triangle are in
question when the question of long imprisonment is brought up. The court has
said that it cannot be oblivious to the fact that the treatment of a human being
which offends human dignity, imposes avoidable torture and reduces the man to
the level of a beast would certainly be arbitrary and can be questioned under
Article 14.16
g. It is further humbly contended before this court that there is no question that
the treatment of the prisoners in our country and the inhuman degradation that
they are subject to on a daily basis is comparable to the aforementioned
description, there is enormous overcrowding in prisons, leading to social and
other problems as noticed by the Court. 17 In fact in the prominent ILI Law
13
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
14
D.B Mohan Patnaik v. State of A.P.,(1975) 2 SCR 24
15
Ibid 12.
16
Ibid 12.
17
Inhuman Conditions in 1382 Prison, In re (2017) 10 SCC 658
15
Review,18 references were made to the letter written by R.C Lahoti J, in which he
pointed out the inadequacy of reformative schemes for offenders and other
prominent issues which is, overcrowding of prisons; unnatural death of prisoners;
inadequacy of prison staff and present staff not being adequately or properly
trained.19 In an era of human rights and under the aura of constitutional mandates,
the prison cannot be converted into human zoo where human beings are shackled,
locked up and forgotten. They cannot be treated as animals, only to be fed and be
kept alive at the minimum sustenance level. Both the constitutional spirit and
reformative theory teach us to permit the prisoners to live with human dignity. 20
Commented [D7]: Reduce the length of the para
h. It is further humbly contended, the life sentence has been compared to

‘putting an individual in a waiting room until his death’ 21 Human beings are not
commodities to which a price can be attached; they are creatures with inherent and
infinite worth; they ought to be treated as ends in themselves, never merely as
means to an end 22 It is thus contended before this Hon’ble Court that the
appellants, most of whom are young men with their whole lives ahead of them, do
not deserve the cruel and harsh penalty that has been imposed upon them. As well
established in law, by virtue of Article 1323 and various cases24, all the laws are
subject to fundamental rights and can be struck down, if deemed to be violative of
the rights, any law made in contravention of Part III is dead from the very
beginning and cannot at all be taken notice of or read for any purpose
whatsoever.25
i. Thus, it is submitted before this Hon’ble Court that punishment of life

sentence, levied under the Indian Penal Code is draconian, violative of not only
18
Ananth Kini, A Critique On Prisons In India In The Light Of Re – InhumanConditions In 1382
Prisons, II ILI Law Review, 71-3 (2017)
19
March 24, 2013 Dainik Bhaskar
20
Shyokaran And Ors. Etc. Etc. v. State Of Rajasthan And Ors., (2008) Cri LJ 1265 (India).
21
G de Beco ‘Life sentences and human dignity’ The International Journal of
Human Rights 411 414. (2005)
22
S v Dodo (CCT 1/01) [2001] ZACC 16 (South Africa)
23
Constitution of India, 1950.
24
Keshavan Madhava Menon v. State Of Bombay, 1951 AIR SC 128.; Behram v. State of Bombay,
1955 CRI LJ 215
25
Rakesh Vij v. Raminder Pal Singh Sethi, (2005) 8 SCC 504
16
fundamental rights but also of the basic human rights and must not be followed in
a progressive country like India. At a time when many European Courtiers are
considering the abolishment of Life Imprisonment 26 , it is suggested that India
must not leave itself in the same condition of countries like Saudi Arabia, Iran or
Pourtgal where primitive punishments are still practiced and the rights of convicts
are profusely ignored.
1.3. Chance of reformation should be given to the appellants.
a. Life imprisonment possesses an intolerable threat to the human dignity of

offender because it is cruel, inhuman and degrading punishment 27 and at the
prohibition of such punishment lays the concept of proportionality of punishment
to the crime. 28 Certainty is an integral element of rule of law 29 and when the
sentence of life imprisonment is imposed upon the appellants by the Hon’ble
Court, it means that the appellants will be in the prison till the last breath of the
accused and there is uncertainty upon the release of the accused as the release of
the prisoner is upon the discretion of either the President or the Governor of the
state30 which violates one of the key element of rule of law.
b. The modern approach should be to reform a person instead of branding him

as a criminal for the rest of his life.31 On the commission of crime, three types of
reactions may generate; the traditional reaction of universal nature which is
termed as punitive approach. It regards the criminal as a notoriously dangerous
person who must be inflicted severe punishment to protect the society from his
criminal assaults. The other approach is the therapeutic approach. It regards the
criminal as a sick person requiring treatment, while the third is the preventive
responsible for crime causation. The therapeutic approach aims at curing the
approach which seeks to eliminate those conditions from the society which were
26
Dirk Van Zyl Smit, Outlawing Irreducible Life Sentences: Europe on the Brink, Federal Sentencing
Reporter, Vol. 23, No. 1, Life Without Parole (October 2010), 39-48
27
Dan Van Zyl Smit, Life imprisonment as an ultimate penalty in International law: A human rights
prospective, 9 CLF 26, 45 (1999).
28
S v. Dodo, (2001) 1 SACR 594 (CC) (South Africa).
29
Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771
30
Gopal Vinayak Godse v. State of Maharashtra, (1961) AIR 600
31
Avtar Singh v. Union of India, (2016) 8 SCC 471; Commissioner of Police v. Sandeep Kumar,
(2011) 4 SCC 644; Rajesh Kumar Yadav v. Union of India &Ors. (2017) 2 CLR 206
17
criminal tendencies which were the product of a diseased psychology. 32
Therapeutic approach has since been treated as an effective method of punishment

which not only satisfies the requirements of law that a criminal should be
punished and the punishment prescribed must be meted out to him, but also
reforms the criminal through various processes, the most fundamental of which is
that in spite of having committed a crime, may be a heinous crime, he should be
treated as a human being entitled to all the basic human rights, human dignity and
human sympathy.33 Commented [D8]: Draft it in abetter way by eliminatimng
irrelevant stuff
c. The most celebrated Article of Part III of our Indian Constitution is Article 21
which talks about protection of life and personal liberty; is made available to those
who have been convicted by Court for an offence.34 Similar Judicial thinking has
also been expressed that convicts, are not by mere reason of conviction, denuded
of all the fundamental rights which they have otherwise.35
d. The court while awarding the sentence to the accused must take in account of
aggravating and mitigating circumstances.36 The Apex Court has opined where
rape and murder have been committed upon the minor victim and wile awarding
the sentence of punishment, the Court has struck a balance between the
aggravating and mitigating circumstances. Several other factors like the young age
of accused, possibility of reformation, etc has also been considered. 37 Justice
Krishna Iyer has previously propounded, “If every saint has a past, every sinner
has a future, and it is the role of law to remind both of this.”38
e. In the present case, while awarding the sentence of life imprisonment to the
accused persons, the Trial as well as the Appellant Court has disregarded the
32
T.K. Gopal alias Gopi v. State of Karnataka, (2000) 6 SCC 168
33
Supra.
34
Ibid 12.
35
D.B. Patnaik v. State of Andhra Pradesh, (19075) 3 SCC185
36
Sunil Dutt Sharma v. State (Government of NCT of Delhi), (2014) 4 SCC 375; Machhi Singh v.
State of Punjab (1983) 3 SCC 470
37
Shankar KisanraoKhade v. State of Maharshtra, (2013) SCC 5546
38
Mohammad Giasuddin v. State of Andhra Pradesh, (1977) AIR 1926
18
decision of Bachan Singh v. State of Punjab39, and only placed emphasis on the
brutal and heinous nature of the crime whereas the mitigating factors including
the possibility of reform and rehabilitation of the appellant were ruled out on the
basis of the nature of the crime and not on its own merits.40 Commented [D9]: irrelevant
f. According to the reformative theory, a crime is committed as a result of the

conflict between the character and the motive of the criminal. One may commit a
crime either because of the temptation of the motive is stronger or because the
restraint imposed by the character is weaker. This theory of reformation, aims at
strengthening the character of man; so that he may not become an easy victim of
his own temptation. This theory would consider punishment to be curative or to
perform the function of a medicine.41
g. The termination of imprisonment for life does not automatically expire after
14 or 20 years but is subject to any remission granted under Section 432 of The
Code of Criminal Procedure, 1978 42 and thus the harsh punishment of life
imprisonment deprives the convict of any hope of rehabilitation and reintegration
in the society.43 Even the sentenced prisoners have a right to establish themselves
in the community.44
h. Thus it is humbly submitted before this Hon’ble Court that awarding Life
imprisonment is to be regarded as one of the brutal form of punishment which
denies the offender the chance of ameliorating towards a better human but also
denying him the opportunity of living and mingling in the community.
39
Bachan Singh v. State of Punjab, AIR (1980) SC 898
40
¶6 moot proposition.
41
1 Nirmal Kanti Chakrabarti, Adminstartion of Criminal Justice: Perception and Practice of
Correctional Services 195 (Nirmal Kanti Chakrabarti, 1997)
42
Sangeet v. State of Haryana, (2013) 2 SCC 452
43
G De baco, Life sentences and human dignity, 9 IJHR 411, 414 (2005).
44
Article 10(3) of International Covenant on Civil and Political Rights, 1966.
19
ISSUE 2.WHETHER THE FINE AND COMPENSATION IMPOSED IS

JUSTIFIED.
It is humbly contended before this Hon’ble Supreme Court that the fine and
compensation imposed upon the appellants by the Appellant Court is draconian
and not justified by any reason while providing any reasoning for the same by the
Hon’ble Court. This shall be put forth in three- fold manner: [2.1] no justification
has been made by Appellant Court in exercising the discretion of levying such
draconian fine and compensation, [2.2] compensation forms a part of fine under
Section 357 of CrPC, 1978 and [2.3] state to pay compensation to victim under
Section 357-A of CrPC, 1978.
2.1 Justification for levying fine and compensation to be given by Hon’ble Court.
a. The payment by way of compensation must be reasonable. Reasonableness

depends upon the facts and circumstances of each case. 45 The compensation
should be payable for any loss or injury whether physical or pecuniary, and the
court shall have due regard to the nature of the injury, the manner of inflicting the
same, the capacity of the accused to pay and other relevant factors.46 Offender is
to provide compensation to the prosecutrix, whose life prospects are ruined, as the
accused person can afford to pay in addition to the sentence.47
b. The quantum of compensation may be determined by taking into account the

nature of crime, the justness of the claim by victim and ability of the accused to
pay.48 The Court while fixing the amount of fine by exercising its discretionary
powers will take several circumstances in the consideration while doing so
including financial condition of the accused person. 49 In the present matter,
financial condition of all the accused were not taken into consideration while Commented [D10]: no backing... refrain from making these
statements
imposing draconian fine of Rs 10,000 each along with compensation of Rs.
45
Harikrishnan& State of Haryana v. Sukhbir Singh, (1998) AIR 2127
46
Hari Singh v. Sukhbir Singh, (1998) 4 SCC 551
47
Every v. Miles, (1964) AC 261.
48
Ibid 45.
49
P.B. Aind v. State of Maharashtra, (1995) Cri LJ 1964 (Bom).
20
50,00,00 to be paid jointly and severally. 50 When no specification has been

provided with regards to extent of fine, the amount of fine which the offender is
liable is unlimited, but that shall not be excessive.51
c. Sentencing the award or refusal of compensation under Section 357 of CrPC,

1978 in a particular case is within the discretion of the Court, and there exists a
mandatory duty on the Court to apply its mind to the question in every criminal
case. 52 Disclosure of application of mind is best demonstrated by recording
reasons in support of the order or conclusion.53 No disclosure by the court has
been done for justifying the reasoning behind imposing impugned fine and
compensation.
d. If there are more than one accused, then they will be asked to pay in equal
terms unless their capacity to pay varies.54 In directing compensation, the object is
to collect the fine and pay it to the person who has suffered the loss and the whole
purpose will be defeated if the accused who is made to pay the sum of amount is
not capable of paying the amount. 55 Out of all the appellants who have been
charged heavily under several Sections of Indian Penal Code and arms Act; only
Brijesh was the son of a millionaire56 while Dinesh was the son of DIG Police and
Suresh being the son of Ex- Chief Minister57, however no mention of the family
or financial background of the other appellants out of which one is a minor has
been mentioned.
Commented [D11]: not a logical argument... think again
e. Capacity of the accused to pay which constitutes an important aspect of any

order under Section 357 would involve a certain enquiry albeit summary. 58 No Commented [D12]: change the structure
enquiry was set up to gain knowledge about the capacity of the appellants to pay
50
51
Sebastian v. State of Kerala, (1992) Cr LJ 3642 (Ker).
52
Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770
53
Maya Devi through LRs &Ors. v. Raj Kumari Batra through LRs, (2010) 6 SCC 770
54
Supra.
55
Sarwan Singh v. State of Punjab, (1957) AIR 637
56
57
58
Manohar Singh v. State of Rajasthan, (2015) 3 SCC 449
21
such draconian amount of fine and compensation imposed by the Court upon
them.
2.2. Compensation forms a part of fine under section 357(1) of CrPC, 1978.
a. According to sub section (1) of Section 357, the Court is empowered to
award compensation for loss or injury suffered by person, in cases where fine
does form a part of a sentence. Sub Section (1) of Section 357 of Code of
Criminal Procedure of 1973 states:
“(1) When a Court imposes a sentence of fine or a sentence (including
a sentence of death) of which fine forms a part, the Court may, when
passing judgment, order the whole or any part of the fine recovered to
be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or
injury caused by the offence, when compensation is, in the opinion of
the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the
death of another person or of having abetted the commission of such
an offence, in paying compensation to the persons who are, under the
Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages
from the person sentenced for the loss resulting to them from such
death;
(d) when any person is convicted of any offence which includes theft,
criminal misappropriation, criminal breach of trust, or cheating, or of
having dishonestly received or retained, or of having voluntarily
assisted in disposing of, stolen property knowing or having reason to
believe the same to be stolen, in compensating any bona fide
purchaser of such property for the loss of the same if such property is
restored to the possession of the person entitled thereto.”59 Commented [D13]: baba aise section explain nhi krte
59
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
22
b. Imposition of fine is a condition precedent for making any order under sub
section 1 of 357 of the Code of Criminal Procedure, 1978 60 and compensation can
only be allowed out of “whole or any part of the fine recovered”. 61 Sub Section 1
of section 357 of CrPC, 1978 provides for payment of compensation out of the
fine itself either the entire amount or a part of the fine. 62 Here, clearly the
compensation which is being imposed amounting to Rs. 50 lacs is way more than
the fine levied upon the appellants by the Court.63
2.3 State has to pay compensation to the victim under Section 357-A of CrPC,
1978.
a. In 2009, Section 357-A was added to the Code. It came into effect from
December 31st 2009.64 The purpose of insertion of this Section into the Code was Commented [D14]: behind this new section
to provide for compensation and rehabilitation of victims of criminal offences

such as rape and acid attack victim. 65 Rehabilitation of the victim or their
dependents and legal representative is mandatory under section 357-A of CrPC,
1978 and part of criminal justice system.66
b. If the compensation awarded under Section 357 is not adequate for

rehabilitation of the victim or her dependents who have suffered loss or injury as
the result of the crime, the Court may make recommendation for compensation.67
The Legal Services Authority may order for immediate first-aid facility or medical
benefits to be made available free of cost on the certificate of the Police Officer
not below the rank of the officer in charge of the Police Station or a Magistrate of
the area concerned, in order to alleviate the suffering of the victim or any other
interim relief as the appropriate authority deems fit also may be provided. In that Commented [D15]: irrelevant
regard, the State Government in coordination with the Central Government has
prepared a scheme for providing funds for the purpose of compensation to the
victim or his dependants who have suffered loss or injury as a result of the crime
60
Pamula Saraswathi v. State of A.P., AIR 2003 SC 2416
61
Queen Express v. Yamuna Rao, (1901) ILR 24 Mad 305, 307
62
Dilip S. Dahanukar v. Kotak Mahindra & Co. Ltd. &Anr., (2007) 6 SCC 528
63
64
The Code of Criminal Procedure, 1973, No. 5, Acts of Parliament, 2009 (India)
65
154th Law Commission Report.
66
Dwigendra Das v. State of Assam, (2012) 3 Gau LR 1
67
The State of Karnataka, Police Sub-Inspector, Pattanayakanahalli Police Station, sira Taluk v.
Rangaswamy, (2016) 2 KCCR 1248
23
and who require rehabilitation.68 In the present case, along with the impugned fine
and compensation to be paid by the accused, the State Government is also being
directed to pay a sum of Rs 10 lacs to the victim.69
c. Therefore, it is humbly submitted before this Hon’ble Court that the

compensation which is being imposed upon all the appellants constitute the sum
to be more than fine which is not justified in the eyes of law. Moreover, there is
no reasoning given by the Court for charging the appellants with such heavy sum
of fine and compensation. Besides, as per the amendment of 2009 in the Code of
Criminal Procedure, 1978 it is the State which is entrusted with the duty of
rehabilitation and medical expenses of the victims of sexual offence.
68
Supra.
69
24
ISSUE 3. WHETHER THE PUNISHMET AWARDED TO JUVENILE IS
JUSTIFIED.
It is humbly contented before this Hon’ble Court that the Sessions Court and
Appellant Court has violated the provisions of Juvenile Justice Act, 2015. The
juvenile who has been alleged of committing a crime should not be treated at par
with adult criminals. Thus [3.1] the punishment awarded to juvenile is not
justified in law. Commented [D16]: add another sub issue
3.1. The punishment awarded to juvenile is not justified in law.
a. Juvenile in conflict with law has been defined in Section 2(13) of the Juvenile
Justice (Care and Protection) Act, 2015 as a child who is alleged to have
committed an offence and has not completed eighteen years of age as on the date
of the commission of the offence.70
b. As per the Matriculation Certificate71 the appellant is a juvenile within the

meaning of the Act at the time of the commission of the offence and has been
tried with other appelants and further has been awarded the sentence of life
imprisonment72 which is clearly violating the Juvenile Justice Act and is purely
against the intent of the legislature. Furthermore, Section 15 of the said Act states:
“In case of a heinous offence alleged to have been committed by a
child, who has completed or is above the age of sixteen years, the
Board shall conduct a preliminary assessment with regard to his
mental and physical capacity to commit such offence, ability to
understand the consequences of the offence and the circumstances in
which he allegedly committed the offence, and may pass an order in
accordance with the provisions of subsection (3) of section 18”73
70
Dharambir v. State (Govt of Nct) of Delhi, AIR (1996) SC 2983
71
¶5 moot proposition
72
¶6 moot proposition
73
The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2, Acts of Parliament, 2016
(India).
25
c. In the present matter the Hon’ble Sessions Court and High Court have not
paid any consideration to the juvenility of the appellant. Further the law states that
juveniles can’t be awarded with death or life imprisonment, at the most they can
be send to a special home up to 3 years.74 The whole objective of Juvenile Justice
Act is to reform and rehabilitate young offenders75 and if a juvenile is sent to the
jail with other hardened criminals the whole purpose of the Act would fail. Thus,
it is humbly submitted before this Hon’ble Court that a child, juvenile, a young
person, who commits a crime should not be treated on par with adult offenders. Commented [D17]: delete this word
The mental frame of a juvenile, who commits a 'delinquent act' is different from
the mental element of an adult accused. So, necessarily they have to be treated
differently.76
d. As per Section 15(1) read with Section 18(3) as defined in Section 2(33) of
the Act, 2015, in a case of heinous offence, if the juvenile is between 16 to 18 Commented [D18]: rephrase
years the Court may sent such case for trial to the Children Court.77 Juveniles do
not face the regular trial in a court of law 78. And in the present matter the juvenile
has been tried along with other appellants which are against the principle of “Best
Interest”79 as laid down u/s 3(iv) of the 2015 Act. The intent of the legislature80
behind enacting the Special Act is; and not retributive, providing for care,
protection, development, rehabilitation and re-integration of children in conflict
with law into mainstream society.81 The age of eighteen has been fixed on account
of the understanding of experts in child psychology and behavioural patterns that
till such an age of children in conflict with law could still be redeemed and
restored to mainstream society, instead of becoming hardened criminals in
future. 82 There can be no denial of the fact that lodging juveniles along with
74
S. Mahdeshwaran v. State of Tamil Nadu, (2012) (Cri) I.j 4398
75
Mohd. Chaman v. State (N.C.T of Delhi), (2001) 2 SCC 28
76
Jayavel v. The State Rep, (2012) MHC 385
77
Vinay Tiwari v. The State Of Madhya Pradesh, AIR (2018) MP 3125
78
UOI and Ors v. Deepak Kumar Mahala, AIR (2014) RJ 515
79
X Minor The Father Natural v. State of Ors., (2012) SCC Delhi 2174
80
Umesh Chandra v. State of Rajasthan, 2 (1982) 2 SCC 202
81
Pratap Singh v. State of Jharkhand and Anr., (2005) 3 SCC 551
82
Salil Bali v. Union of India, (2013) 7 SCC 705
26
hardened adult criminals can have drastic implications on the physical and mental
well being of a juvenile offender83.
e. Therefore it is humbly submitted before the Hon’ble Supreme Court that

since Virender is a juvenile, and his juvenility is proved without any reasonable
doubts. Hence he should be entitled to get the benefits of the Act and should be
tried by a competent authority.
83
Court On Its own Motion v. Dept. of Women And Child,. WP (C) No. 8889 of 2011.
27
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited it is
most humbly and respectfully requested that this Hon’ble Court may be pleased to:
1. Declare the punishment of life imprisonment to be invalid & unconstitutional.
2. Overrule the fine and compensation imposed.
3. Overrule the punishment imposed upon the juvenile.
Commented [D19]: same as respondent’s memo

AND/OR
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Equity and Good Conscience.
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.
(Counsel for the Respondent)
28

8 Fylc Ranka National Moot Court Competition, 2018

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8 Fylc Ranka National Moot Court Competition, 2018

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8th FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2018

8th FYLC- RANKA NATIONAL MOOT COURT, 2018

IN THE HON’BLE SUPREME COURT OF INDIA

APPELLANT JURISDICTION S.L.P. NO.____/2018

BRIJESH & OTHERS...............................................................................APPELLANTS

STATE OF RAJASTHAN & OTHERS...........…....................................RESPONDENTS

BEFORE SUBMISSION TO THE HON’BLE CHEIF JUSTICE AND HIS

MEMORIAL ON BEHALF OF THE APPELLANT

LIST OF ABBREVIATION ................................................................................................................. 3

INDEX OF AUTHORITIES ................................................................................................................ 5

STATEMENT OF JURISDICTION .................................................................................................... 8

STATEMENTS OF FACTS ............................................................. Error! Bookmark not defined.

ISSUES RAISED .................................................................................................................................11

SUMMARY OF ARGUMENTS .........................................................................................................12

ISSUE I.WHETHER CONSTITUTIONAL VALIDITY OF LIFE IMPRISONMENT BE

1.1 Violation of rights. .............................................................................................................................. 13

1.3. Chance of reformation should be given to the appellants. .................................................... 17

ISSUE 2. WHETHER THE FINE AND COMPENSATION IMPOSED IS JUSTIFIED. ..........20

ISSUE 3. WHETHER THE PUNISHMET AWARDED TO JUVENILE IS JUSTIFIED. .........25

AIR All India Reporter

Bom Bombay High Court

Cal Calcutta High Court

CCR Current Criminal Reports

CRLJ Civil Rights Law Journal

CRPC Criminal Procedure Code

Del Delhi High Court

Guj Gujarat High Court

IPC Indian Penal Code

JJ Juvenile Justice Act

Mad Madras High Court

n. Foot Note no.

Pat Patna High Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

U.P Uttar Pradesh

Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770..................................... 19

S v. Dodo, (2001) 1 SACR 594 (CC) (South Africa). ............................................................. 15

Article 1 of the Universal Declaration of Human Rights, 1948 .............................................. 11

154th Law Commission Report. ............................................................................................... 21

Ananth Kini, A Critique On Prisons In India In The Light Of Re – InhumanConditions In

Nirmal Kanti Chakrabarti, Adminstartion of Criminal Justice: Perception and Practice of

“136. Special Leave to Appeal by the Supreme Court.

to the Armed Forces

ISSUE 1. WHETHER THE PUNISHMENT OF LIFE IMPRISONMENT IS

1.1 Violation of Rights.

ISSUE 2. WHETHER THE FINE AND COMPENSATION IMPOSED IS

ISSUE 3. WHETHER THE PUNISHMENT AWARDED TO JUVENILE IS

3.1 The punishment awarded to juvenile is not justified in law.

Commented [D2]: Same as last

ISSUE 1.WHETHER CONSTITUTIONAL VALIDITY OF LIFE

ISSUE 2.WHETHER THE FINE AND COMPENSATION IMPOSED IS

ISSUE 3. WHETHER THE PUNISHMENT AWARDED TO JUVENILE IS

ISSUE 1.WHETHERCONSTITUTIONAL VALIDITY OF LIFE

1.1 Violation of rights. Commented [D4]: Heading complete

a. It is humbly contended before this Hon’ble Court that the imposition of

c. Even the vilest offender remains possessed of human dignity. 8 It is humbly

d. It is a well-established principle that even a convict is entitled to the precious

within clause (d) of Article 19 (1). The burden to justify the

h. It is further humbly contended, the life sentence has been compared to

i. Thus, it is submitted before this Hon’ble Court that punishment of life

1.3. Chance of reformation should be given to the appellants.

a. Life imprisonment possesses an intolerable threat to the human dignity of

b. The modern approach should be to reform a person instead of branding him