ORIENTAL COLLEGE MOOT COURT COMPETITION

ORIENTAL COLLEGE OF LAW, MOOT COURT COMPETITION

SEP 2019

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

(CRIMINAL APPELATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO.______

UNDER ARTICLE 136 OF CONSTITUTION OF INDIANA

SHYAMA …………APPELLANT

V/S

UNION OF INDIANA ………RESPONDANT

ALONG WITH

SHEKHAR …………APPELLANT

V/S

UNION OF INDIANA ………RESPONDANT

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TABLE OF CONTENT

1. INDEX OF AUTHORITIES 03

2. STATEMENT OF JURISDICTION 04

3. STATEMENT OF FACTS 05

4. STATEMENTS OF ISSUES 07

5. SUMMARY OF ARGUMENTS 08

6. ARGUMENTS ADVANCED 10

7. PRAYER 15

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INDEX OF AUTHORITIES

PG.

1. Ram Prasad Sahu V. UOI 1980 11

2. Salil Bali V. UOI 2013 SCC705 11

3. Bodhisattwa Gautam V. Subhra Chakraborty 1996 SCC 490 11

4. Babloo Pasi V. State of Jharkhand 11

5. Adult time for adult crime – by Astha Mishra (blog on SSCONLINE) published on 31st

Jan 2018 11

6. Mukarrab Etc vs State Of U.P 12

7. Babloo Pasi vs State Of Jharkhand 2008 SC 133, para 17 12

8. Ramdeo Chauhan alias Raj Nath Vs. State of Assam 12

9. Ramyash lallu V. State 2012 (Delhi High Court) 12

10. Nandu Rastogi alias V. State of Bihar 2003 13

11. Krishna V. State AIR 2003 SC 2978 13

12. Lallan Rai V. State of Bihar AIR 2003 SC 333 13

13. Dr. Subramanian Swamy And Ors V Raju 14

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STATEMENT OF JURISDICTION

The appellant/s herein has approached this hon’ble court by

filling a special leave petition under article 136 of constitution of Indiana.

Article 136 read as follow:

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgments, decree, determination, sentence or order in
any cause or matter pass or made by any court or tribunal in territory of Indiana.
(2) Nothing in clause (1) shall apply to any judgments, determination, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

It is submitted that this Hon’ble Court has the jurisdiction to

entertain the Appeal filed under Article 136 of constitution of Indiana.

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STATEMENT OF FACTS

Background:
Shyama, a poor boy was from slum of the city of Brada in Republic of Indiana, studied in
government funded school, Shanti Niketan, upto 6th standard and dropped his studies. Since then
he was been employed under Mr.Batra as house servant and other allied chores. Mr.Batra from
Anand Vihar society of Brada, were as Shyama lived in quarter provided by Mr.Batra. Shyama
worked there for 6 years till time of commission of crime.

Mr.Batra had two children, Ravi aged 18 years and Vanita aged 16 years.

Shekhar aged 17 years 7 months, son of Mr. Saxena where living next to Mr.Batra. Shekhar had
animosity against children of Mr.Batra.

Cause of crime:
Both childrens of Mr.Batra treated Shyama in condescending manner always, insulting him on
trivial matters. Shyama was very upset from their behaviour. As days passed, the hate for both
was increasing in the heart of Shyama.

Shekhar while playing soccer in society park where Ravi and Vanita were also jogging as per
there routine, the ball hits to the head of Vanita. On this Ravi and Shakhar started oral arguments
and this increased the heated quarrel between them. Mr.Mehat, passer-by, resolved the quarrel.

Shekhar saw Ravi and vanita were scolding and insulting Shyama in public for not bringing
some groceries, even though it was not avaliable in market. Shekhar took this oppourtunity and
met Shyama for having hate towards both of them.

Commission of crime:
Shyama took 3 days leave from 7th march 2015 for visiting his native place. On 8th march 2015
Mr.Batra left to attend a business seminar in other city. Mrs.Batra had a plan to visit exhibition
with family, but due to Mr.Batra’s seminar she decided to go with childrens. Shyama had the
knowledge of this. On same day, Mrs.Batra reached exhibition with childrens, which was located
in remote and desolate part of city of Brada. The event was organized by Mrs.Batra’s college
friend, so, she engaged with her.

At around 8.30 pm, Vanita was taken by four persons and Ravi sensed that his sister is missing.
He started searching her. While searching her, he reached the basement where he saw two
persons were tightly holding his sister and other two were trying to outrage her modesty by
tearing her cloths. One of them hitted Ravi when he was trying to save Vanita. Ravi was hitted
with rod on his head and several blows were given over his abdomen, due to which he felt
unconscious. When Vanita tried to scream, here mouth was forcefully shut. Due to that she was
strangulated and died. All four persons fled away.

Mr.Ram Manohar, eyewittness, saw Shekhar sneaking out of the basement.

Around 9.30 pm, the guard who came to switchoff lights of basement, saw bodies of Ravi and
Vanita. The case was registered to nearby police station. Police arrived and bodies were sent for
medical examination.

Arrest and Judicial proceedings:

On information from Mr.Ram manohar, police arrested Shekhar on 10 th march 2015 and after
investigation, police arrested Shyama along with Raju and Ranveer, both aged 17years and were
Shekhar’s friend.
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Postmortem report revealed that Ravi died due to head injury and internal bleeding while vanita
died due to suffocation caused by strangulation. Medical report also revealed that her clothes
were torned and presence of several scratches and injuries on body. Medical report also found
shyama’s finger prints on vanita’s body.

The case was submitted to Juvenile Board since all accused were below 18 years of age. On 15 th
may 2015, Juvenile Board found Shekhar and Shyama to be well aware of acts and consequences
and therefore they were transferred to Sessions Court for further proceedings. Both of them were
tried in Court of Session U/S 304, 326, 354 read with 34 of IPC, 1860. While Raju and Ranveer
were tried by Juvenile Board U/S 304, 326, 354 read with 34 of IPC, 1860.

On 9th June 2015 JJB found Raju and Ranveer guilty under above mentioned sections and
directed them to special home for maximum period of one year. Both did not prefer further
appeal.

Shekhar and Shyama plead juvenility before Session Court. On 12th June 2015 Shekhar’s case
was remanded back to JJB but Shyama’s submissions were rejected due to lack of age proof.
Shyama’s plea for ossification and other tests were rejected by court due to inconclusiveness of
such tests. On 28th July 2015 Shyama was found guilty under above mentioned sections since his
finger prints were found on Vanita’s body. Court sentenced him for 3 years imprisonment. On 4 th
August 2015 Shekhar was also found guilty under above mentioned sections and on statement of
Mr.Ram Manohar. JJB sent him to special home for maximum period of 3 years.

Appeals:
Shekhar appealed in Sessions that mere presence does not prove the guilt but the court rejected
it. Shyama appealed in High Court for setting aside the convection of Session Court since they
have no jurisdiction to try the case as he was a minor. And he also raised questions regarding
rejection of bone and other tests to determine his age. At the same time, Shekhar filed a revision
petition in High Court, but both were rejected by High Court, saying that, they were aware of
their delinquent acts and consequences of same. As per High Court, they were capax of
committing crime and had a common consensus.

Prosecution stated that both culprits were to be convicted u/s 302 instead of u/s 304 of IPC,
1860. Thus, contention of prosecution was accepted by High court and Shyama was sentenced
for 10 years of imprisonment.

Appeal to Supreme Court:

On 11th January 2016, both accused filed special leave petition u/a 136 of Constitution of Indiana
and the apex court clubbed both matters and decided to hear the same.

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STATEMENT OF ISSUES

I. Whether or not, sentences passed by Session Court and High Court which
is challenged in Supreme Court is maintainable and Shyama to be
consider as juvenile and remanded back to juvenile board

II. Whether or not, the rejection of bone and other tests to determine age, by
Session Court and High Court is valid.

III. Whether or not, contention of Shekhar for acquittal is maintainable.

IV. Whether or not, Juvenile Justice Act is in contravention of constitution of

Indiana and other international laws.

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SUMMRY OF ARGUMENTS

Whether or not, sentences passed by Session Court and High Court which is
challenged in Supreme Court is maintainable and Shyama to be consider as
juvenile and remanded back to juvenile board

It is humbly submitted before the hon’ble Supreme Court of Indiana that this special leave
petition is not maintainable since justice has been served by subordinate courts with due
diligence and in accordance of law.

The accused/s had the knowledge of his acts and he is well aware of its consequences. The
nature of the crime was heinous and it is committed with proper planning. There was mens rea
and actus reus in the act committed. Both were physically capable of committing crime.

The 2015 Act differentiates between petty, serious, and heinous offences, and proposes to treat
juvenile offenders who commit “heinous offences” between the ages of sixteen and eighteen as
adults by putting them to trial under the criminal justice system.

The 2015 Act legitimizes the transfer of juveniles above the age of sixteen to adult courts, if the
Juvenile Justice Board (‘Board’) concludes that the level of maturity of the juvenile indicates that
he committed the heinous offence as an adult and not as a child. We believe that such a system,
which establishes a link between the gravity of the offence committed and the maturity of the
child, defeats the objectives of juvenile justice law as it lets the crime overshadow the child. We
thus argue that the transfer mechanism envisaged by the 2015 Act is contrary to principles of
constitutional law and international principles governing juvenile policy.

Whether or not, the rejection of bone and other tests to determine age, by
Session Court and High Court is valid.

Shyama committed crime in heat of taking revenge. He had the option to complain Mr.Batra
about the behaviour of their childrens. He himself along with three other persons planned to rape
vanita. He had the intention to commit crime and was well aware of the consequences of it.

A bench of justices A K Sikri and R Banumathi said “It has been held in many cases that court
cannot rely on such medical tests. Medical evidence as to the age of a person though a very
useful guiding factor is not conclusive and has to be considered along with other circumstances.
Ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a
person.”

“The ossification test cannot be considered conclusive proof of the age of the person who is
subjected to it as it includes a margin of error,” said Justice Sadhana Jadhav. The judge said she
agreed with the defence that the trial court should not have placed implicit reliance on the results
of the ossification test and instead conducted a probe.

The apex court said a "blind and mechanical view" on the age of a person cannot be adopted
solely on the basis of medical opinion by radiological examination.

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Whether or not, contention of Shekhar for acquittal is maintainable.

Section 34 of IPC, 1860 says, Acts done by several persons in furtherance of common
intention.When a criminal act is done by several persons in furtherance of the common intention
of all, each of such persons is liable for that act in the same manner as if it were done by him
alone.

Shakher had childhood hate with ravi and vanita. When he saw ravi and vanita were insulting
shyama, he reached shyama and convinced him for taking a revenge.

Ram manohar, eyewitness, saw shekhar sneeking into the basement. Distancing self from crime
place cannot absolve the conviction. There was a pre-arranged plan for commission of crime
either from conduct or from circumstances or from incriminating facts.

Shekhar and shyama had the common intention described under section 34 of IPC, 1860.
Common Intention is known as a prearranged plan and acting in concert pursuant to the plan. It
must be proved that the Criminal act was done in concert pursuant to the pre-arranged plan. It
comes into being prior to the Commission of the act in point of time, yet it need not be a long
gap. The gap need not be long sometimes common intention can be developed on the spot. The
fundamental factor is a pre-arranged plan to execute the plan for the desired result. Each of such
person will be liable in an act done in furtherance of common intention as if the act was done by
one person. Common Intention does not mean the similar intention of several person. To
constitute common intention, it is necessary that the intention of each one of them be known to
the rest of them and shared by them

Whether or not, Juvenile Justice Act is in contravention of constitution of

Indiana and other international laws.

The Constitution of India provides a comprehensive study and understanding of child rights.
State owes special care and protection towards them and therefore constitution of India has
provided with several rights dealing with their liberty, development and care, non discrimination,
educational rights, etc. It is further supported with comprehensive legal regime. Article 15(3),
which provides the state to make special laws for women and children. Article 39(f) was inserted
in the Constitution of India by the 42nd Amendment Act, provides that the children are given
opportunities and facilities to develop in a healthy manner and in conditions of freedom and
dignity and they must be protected against exploitation and against moral and material
abandonment. Article 47, which imposes a duty on the State to raise the level of nutrition and the
standard of living to improve public health.

General Comment No. 24, replacing General Comment No. 10 (2007) Para 32 says “Art. 40 (3)
of CRC requires States parties to seek to promote, inter alia, the establishment of a minimum age
below which children shall be presumed not to have the capacity to infringe the penal law, but
does not mention a specific minimum age in this regard. The Committee understands this
provision as an obligation for States parties to set a minimum age of criminal responsibility. The
reports submitted by States parties demonstrate a wide range of minimum ages of criminal
responsibility, ranging from a very low level of age 7 or 8 to the commendably high level of age
14 or 16. In the light of this wide range of minimum ages for criminal responsibility, the
Committee decided in general comment No. 10 (2007) to provide the States parties with clear
guidance regarding the minimum age of criminal responsibility.”

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ARGUMENTS ADVANCED

1. Whether or not, sentences passed by Session Court and High Court

which is challenged in Supreme Court is maintainable and Shyama to
be consider as juvenile and remanded back to juvenile board

A. Whether or not, petition filed before this court is maintainable.

It is humbly requested not to entertain this petition since conviction of offences committed has
been done with due diligence and in accordance of law. Article 136 of conetitution of Indaina
says that “The Constitution of India under Article 136 vests the Supreme Court of India, the
apex court of the country, with a special power to grant special leave, to appeal against any
judgment or order or decree in any matter or cause, passed or made by any Court/tribunal in the
territory of India.” This Article does not give power to move before this court, the court has the
power to interfere in suitable cases.
There is no question of law involved in this case, it has been put before this court by petitioner
merely on the bases of question of facts, and it needs to be dismissed.

B. Whether or not, order passed by Session Court and High Court is

maintainable
The stand of Session Court and High Court were clear that the accused Shyama was well aware
of the crime committed and he was capex of doing it and also had the intention of committing
offence against deceased victims. Evidence revealed that both of the accused were well aware of
the circumstances of their delinquent acts. Statement of eyewitness is the strong evidence against
both accused. The evidence put before Session Court and High Court clearly stated that those
were against shyama and shekhar. Finger prints of shyama and eyewitness are enough proof to
convict them.
A change made to the law in 2015 allows a juvenile over 16 to be tried as an adult for heinous
crimes like rape and murder. The changed dynamics of childhood and adolescence have to be
viewed against the backdrop of present times. We cannot let emotions rule practical thinking. If
an offender can commit a heinous crime, he is needed to be tried and punished as an adult.
Under Juvenile Justice Act, 2015, offences are categorized into three classes according to the
quantum of punishment prescribed for them.

a. Petty - maximum punishment imprisonment up to three years;

b. Serious – punishment with imprisonment between three to seven years;
c. Heinous – minimum imprisonment for which seven years or more.
Can be passed against a child in conflict of law.

Under the 2015 Act, children in conflict of law are put under two classes or groups:
1.
a) Those below 18 of age in case of petty or serious offences
b) Those below 16 of age in case of heinous offences.

2. Those who have completed 16 years of age but are below 18 in case of heinous offences.

The first group is to be dealt with juvenile justice board. In respect of second group, the new Act
provides a separate scheme of investigation, trial, and punishment. Those in 16 to 18 age group
who had have committed heinous offence can be tried as adult.

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Section 2(33) of Juvenile Justice Act, 2015 describe “heinous” as offences for which the
maximum punishment under the Indiana Penal Code, 1860 or any other law for time being in
force is imprisonment for seven years or more.

As the facts stated shyama after dropped out from school from 6th standard, started working
under Mr.Batra as house servant. He worked there for last 6 years till commission of crime. He
was treated harshly by children’s of Mr.Batra and was insulted every time. The behavior of ravi
and vanita led the path of hate in shyama. The session Court and High Court came to the
conclusion that shyama is above 16 years, even though he had no age proof, it was likely he is
above 16 years. Court’s discretion was based on the nature and commission of offence. Shyama
and shekhar was capex of committing it and had the knowledge of its deliquent act.
Shyama’s finger prints were found on vanita’s body as per medical report. Her clothes were
torned and had several injuries on her body. Eyewitness saw shekhar sneeking into basement.The
ingredients mens rea and actus reus were present.
In the opinion of High Court, this case was proved beyond reasonable doubts. There was clear
evidence against shyama, statement of eyewitness and medical evidence. Shyama was sentenced
for 10 years imprisonment by High Court. Supreme Court held that a child offender can be
convicted of committing rape and an attempt to commit rape [1]. Where a child is not eligible to
be punished but is capable of committing rape or murder it is against the principle of justice and
principle of proportionality of punishment if he is given blanket immunity. It is a well-
established medical psychological fact that the level of understanding of a 16 years old was on a
par with that of adult [2].
The offence of rape was held to be a violation of the rights to life guaranteed under Article 21 of
Constitution of Indiana. Fundamental rights are superior to any other right guaranteed by any
statute. Thus, making the blanket immunity to be given to juveniles, being ultra virus the
constitution [3].

C. Shyama to be considered as juvenile or not.

Medical evidence shows that sexual offence has been committed by shyama as his finger
prints were found on vanita and statement of eyewitness against shekhar also leads to convict
them.
By observing the physical built up of a person it can be said that he is an adult. It should be
duty of the court to give oppourtinity to juvenile to prove his defence but it should not leads
to miscarriage of justice.[4]
There are many cases where juvenile has been treated as adult. Such as, [5]
1. Mercedes hit and run case in July 2016. It was the first case after the enactment of J.J.
Act 2015 whereby the accused was tried as adult. The accused ran over his father’s
Mercedes on 32 years old marketing executive.
2. In Jhabua murder case on 1st March 2017, two minors aged 17 and 16 were awarded life
imprisonment.The two accused stabbed the deceased over matter of 800rs.
3. In Hatigaon rape case on September 2013, a group of five juvenile aged between 12 to 16
years raped a 12 year old girl by dragging her to an abandoned place and raping
throughout night.The accused were neighbors of victim.
As per NCRB report in 2012, police arrested 27,936 juveniles for alleged involvement in
serious crimes including rape and murder. Between 2002 and 2012, rape and murder cases by
juvenile were increased by 143%.There is a need to take certain steps to tackle increasing
crime by juveniles.

______________________________________________________________________________
1. Ram Prasad Sahu V. UOI 1980
2. Salil Bali V. UOI 2013 SCC705
3. Bodhisattwa Gautam V. Subhra Chakraborty 1996 SCC 490
4. Babloo Pasi V. State of Jharkhand
5. Adult time for adult crime – by Astha Mishra (blog on SSCONLINE) published on 31st
Jan 2018.

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2. Whether or not, the rejection of bone and other tests to determine age,
by Session Court and High Court is valid.

It is humbly contended before this court that the reason for rejecting bone test, High Court stated
that both accused were well aware of the circumstances and consequences of their delinquent act
and were capable of committing offence. In a recent judgment, State of Madhya Pradesh v.
Anoop Singh (2015) 7 SCC 773, it was held that the ossification test is not the sole criteria for
age determination. Following Babloo Pasi and Anoop Singh’s cases, we hold that ossification
test cannot be regarded as conclusive when it comes to ascertaining the age of a person. [6]

The Medical evidence as to the age of a person, though a very useful guiding factor, is not
conclusive and has to be considered along with other cogent evidence. [7]

Too much of reliance cannot be placed upon textbooks, on medical jurisprudence and
toxicology while determining the age of an accused. In this vast country with varied latitudes,
heights, environment, vegetation and nutrition, the height and weight cannot be expected to be
uniform.[8]

An X- ray ossification test may provide a surer basis for determining the age of an individual
with the opinion of a medical expert, but it can by no means be so infallible and accurate a test as
to indicate the correct number of years and days he has lived. Hence the opinion of a medical
expert based on such test cannot be regarded to be conclusive, particularly when the difference in
the approximate age stated by him and the penal provisions is not wide. [9]

It is requested before this Hon’ble Court that the order passed by lower Courts were very well
justified and there is no need to waste time of this Court. In the absence of any cognet evidence
the plea of juvenility should be rejected.

6. Mukarrab Etc vs State Of U.P

7. Babloo Pasi vs State Of Jharkhand 2008 SC 133, para 17
8. Ramdeo Chauhan alias Raj Nath Vs. State of Assam
9. Ramyash lallu V. State 2012 (Delhi High Court)
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3. Whether or not, contention of Shekhar for acquittal is maintainable.

Statement of Mr. Ram manohar, eyewitness, is enough to prove conviction of shekhar. It is not
necessary that one of the accused must assault the deceased. It is enough if it is shown that they
shared a common intention to commit the offence and in furtherance thereof each one played his
assigned role by doing separate acts, similar or dives [10]

Shekhar had animosity for ravi since childhood. When he saw shyama was insulted by ravi and
vanita publicly, he saw oppournity to take revenge and then visited shyama and convenced him
that they share common hate towards ravi and vanita, which leads to commission of crime.

Shekhar was not charged merely on the ground of presence. Both shekhar and shyama had mens
rea and they were well aware of their actions. They were capable of committing delinquent act.
Both were sharing common intention i.e. hate towards ravi and vanita. There case was proved
beyond reasonable doubt by High Court.

Section 34 of Indiana Penal Code states that:

Acts done by several persons in furtherance of common intention.—when a criminal act is done
by several persons in furtherance of the common intention of all, each of such persons is liable
for that act in the same manner as if it were done by him alone.

Common Intention:

 Common intention requires pre-arranged plan

 There is a prior meeting of mind before commission of crime.
 The person who actually participated in committing crime and the person who facilitated
to commit such act are equally liable under common intention.

There is a pre-arranged plan which is proved either from conduct or from circumstances or from
incriminating facts. [11] The requirement of the statute is sharing common intention upon being
present at the place of occurrence. Mere distancing self from the scene cannot absolve the
conviction. [12]

10. Nandu Rastogi alias V. State of Bihar 2003

11. Krishna V. State AIR 2003 SC 2978
12. Lallan Rai V. State of Bihar AIR 2003 SC 333

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4. Whether or not, Juvenile Justice Act is in contravention of

constitution of Indiana and other international laws.

It is humbly contended before this Hon’ble Court that Juvenile Justice Act, 2015 is in accordance
of constitution of Indiana. All children aged between 16 and 18 is treated equally and no children
aged between 16 and 18 who have committed heinous crime are treated differently.

The Act of 2015 is in replacement of Act of 2000 and it now differentiates offences in petty,
serious and heinous crime. There is no discrimination on any ground of religion, caste, race, sex,
place of birth. There is no violation of rights and liberty of any children. It does not goes in
contravention of Article 15 or 21 of constitution of Indiana.

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. Indiana 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 Penal Code.

It may be advantageous to now take note of the Juvenile Justice System working in other
jurisdictions:[13]

UNITED KINGDOM

Children less than 10 years of age are irrefutably considered as incapable of committing an
offence. Children between 10-18 years are capable of committing offences, but are usually tried
in the Youth Court, unless they have committed serious offences (such as rape or homicide) or
have been charged with adults (co-defendants), in which case they are tried in the Crown Court.

UNITED STATES OF AMERICA

The US has a relatively high rate of juvenile delinquency. In 2011, the number of juvenile
delinquents was 129,456 out of a population of 250 million. Although the traditional age of
majority is 18 years, nearly all States permit persons less than 18 years to be tried as adults.

AFGHANISTAN

Sentences of death and life imprisonment cannot be awarded to juveniles. For juveniles aged
between 12-16 years, 1/3rd of the maximum punishment to adults can be awarded. For juveniles
aged between 16-18 years, ½ of the maximum punishment to adults can be awarded.

______________________________________________________________________________

13. Dr. Subramanian Swamy And Ors V Raju

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PRAYER

I request this Hon’ble Court to:

 Dismiss this special leave petition

 Hold the order passed by Session Court and High Court
 State that Juvenile Justice Act, 2015 is not in contravention either of Constitution of
Indiana or of International Conventions

And/or

Pass any order as it deemed fit in interest of justice, equity and good conscience.

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