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KASHMIR LAW COLLEGE

NOWSHERA, SRINAGAR

EXTERNAL MOOT COURT MEMORIAL 2022

PREPARED BY: Murtaza Naqvi

ENROLLMENT NO: 16042127011

SEMESTER: BA.LLB 9th

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Before the Hon'ble Supreme Court of india

At New Delhi, India

In the case of : [Cr. App. No. 221 of 2018]

W.P.N-----------2018

Yousuf Khan & Ors.

[Appellate]
V.
1. State Of Jammu and Kashmir
Along with Centre against Death Penalty
Kashmir V. Union Of India & Ors. [ Respondent ]

In the matter of : writ petition challenging the constitutional validity of

Death penalty.

[ Filed under article 136 of constitution of India ]

Written Submissions on behalf of The Defendant Roll No.10

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TABLE OF CONTENTS
1. List Of Abbreviations……………………04

2. Index Of Authorities……………………...05

3. Statement Of Facts………………………...06

4. Questions Presented ............................................ 13

5. Issue for Consideration ......................................... 14
6. Summary Of Arguments....................................... 15

7. Arguments Advanced…………………….14

8. Prayer For Relief……………………………25

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LIST OF ABBREVIATIONS
I. P. Page No.

II. Pil. Public Interest Litigation

III. Air. All India Reporter

IV. Art. Article

V. J. Justice

VI. Ltd. Limited

VII. Ors. Others

VIII. Sc. Supreme Court

IX. Scc. Supreme Court Cases

X. Scr . Supreme Court Reporter

XI. Hc. High Court

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XII. Uoi. Union Of India

XIII. V. Versus
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INDEX OF AUTHORITIES
a. The constitution of India, 1950

b. Indian penal code, 1860

c. Code of criminal procedure, 1973

Case Laws Referred:
Bachan Singh v. State of Punjab

Bahadur Singh & ors. V. State of Vind

M.G. Agarwal v. State of Maharashtra

S. Gopala Reddy v. State of Andhra Pradesh

State of Maharashtra v. Danu Gopinath Shinde

Books Referred:

I. Dr. J.N Pandey, Constitutional Law Of India

II. M. Hidyatullah, Constitutional Law Of India

III. Dr. Kailash, Rai Public Interest , Lawyering

IV. Mp Jain, Constitutional Law Of India

V. Prof. S.N Mishra, Indian Penal Code

VI. K.D Gaur, The Indian Penal Code

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Statement of jurisdiction:
Article 136 :
(1) Notwithstanding anything in this Chapter, the Supreme
Court may, in its discretion, grant special leave to appeal from
any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal
in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment,

determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to
the Armed Forces.
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STATEMENT OF FACTS :

For the sake of brevity and convenience of the Hon`ble Court

the facts of the present case are summarized as follows:

BACKGROUND
1. Sabz Afridi, the son of a local shopkeeper fell in love with
Seema Khan, the daughter of a police officer and both
wanted to marry each other. However, Seema‘s
family did not want her to marry someone who was poor
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and came from an inferior family. On 10th January 2013,

they eloped from their respective homes and married the
next day in accordance with Islamic Law.

2. Two days later (12th January 2013), Seema‘s father

(Yousuf Khan) and his son Younis Khan (Seema‘s
brother) went to Sabz‘s house and abused his
parents.They also beat up Sabz‘s younger brother
who had to be taken to the hospital for treatment. Later
that day, Yousuf Khan‘s neighbour Inzimam
(Prosecution Witness-1) overheard Seema‘s father
and brother talking about killing someone.

3. After their marriage, Sabz and Seema went to live with

Sabz‘s uncle (Babar Afridi) who lived in Raj Bagh
colony. Babar Afridi also provided Sabz with finance to
set-up a medicine shop. Both of them used to sit in the shop
in the evening.

4. On 12th March 2013, at about 6:30 p.m. some unidentified

men came to the shop and broke all its windows. They also
beat the couple violently and took away most of the
medicine. Sula Baba (Prosecution Witness-2) saw the car
bearing number JK 01AB 9K9K (registered under Yousuf
Khan‘s name) leaving the Raj Bagh locality at 9:00
p.m. in the evening.
5. On 13th March, 2013 Sabz filed a FIR with police station
Raj Bagh and named Yousuf Khan as one of the suspects.
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In the ensuing investigation the police found that Yousuf

Khan was not in town on the day the incident occurred.
The file was later on closed due to non-availability of the
suspect names.

6. Sabz and Seema usually returned home at 7:00 p.m. after

closing their shop. However, on 11th October 2013 they
did not return at their usual time. And when Babar Afridi
did not hear from them till 10:00 p.m., he went and filed
an FIR in police station Raj bagh. The police traced
Sabz‘s cell phone to someplace near Hazratbal. A team
was sent to the location, but they were not able to find
anything.

DEATH OF SABZ AFRIDI AND SEEMA KHAN

7.Two days later, Mr. Nazim Shah (resident of hazratbal)
found two bodies lying on the bank of Nigeen. He
immediately informed the police about the same. The police
immediately reached the spot and later on identified the
bodies as that of Sabz and Seema. The bodies were sent to
Government Medical College Srinagar for Post Mortem.
Subsequently, an FIR was lodged on the information
provided by Mr. Nazim Shah.

8.After taking cognisance of the matter and after the

preliminary investigation, the FIR was amended and Yousuf
Khan, his son Younis Khan, Nabi Shafi
(Yousuf Khan‘s bodyguard), Mohd. Sami (Yousuf
Khan‘s servant) were named as prime suspects. Soon after
that the police raided Yousuf Khan‘s house and arrested
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all the suspects. The police also found a local made pistol
from the servant quarter and some bloody clothes in the
house. The police also found a large amount of nitroglycerine
and nitrousperoxide from the house. When asked about the
same, Yousuf Khan replied that same was used by their
gardener.

9. The post mortem report on Sabz‘s body concluded

that there were a lot of injuries which he suffered before
death.While as the post mortem report on Seema‘s
body suggested that she could have been raped before she
was killed.

10. After the investigation was completed, the

investigating officer submitted the final report before the
competent court which took the cognizance of the same.
The report named Yousuf Khan (Accused 1), Younis Khan
(Accused 2), Nabi Shafi (Accused 3) and Mohd.
Shami(Accused 4) as the accused for the murder of Sabz
Afridi and Seema Khan. Subsequently, the prosecuting
officer filed the charge-sheet under which the case was
made against the accused on following charges:

a. Murder under Section 302 of I.P.C

Rape under Section 375 I.P.C

JUDICAL PROCEEDINGS

11. During the trial, the prosecution informed the court

that Mr. Mohd. Shami (Accused No. 4) had confessed to
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the crime in the police station. Shami voluntarily took a

Narco-analysis test (in absence of a lawyer) and repeated
the same statement that he had given to the police. The
prosecution informed the court that Shami had agreed to
be the witness for the state and wanted to make a
confession before the court. After looking into all the
evidence as well as hearing all the witnesses, the court
found all the accused guilty of murder on 06.05.2018.
While coming to this conclusion the court relied on the
confession made by accused no. 4 because same was
corroborated by the Narco-analysis test. The court also
found accused no. 3 guilty of rape. The court sentenced all
the accused to death. All the accused preferred an appeal
against the same to high court of J & K. The high court
upheld the decision of the trial court and confirmed the
death sentence.

12. Centre against Death Penalty, Kashmir (CDPK) is a

think tank based in Srinagar set up by a group of law
graduates in 2010 has been running a campaign for the
abolition of death penalty its inception and has been
creating awareness about the same. On 14.05.2018 they
filed a Public Interest Litigation (W.P. No. 08 Of 2018) in
the high court of J & K Challenging the constitutionalty of
death penalty. They argued that the case of Bachan Singh
v. State of Punjab was decided long back and a lot of things
have changed since then . Agreeing with counsel for
CDPK that the case of Bachan Singh v. Sate of Punjab
needs to be reconsidered and the matter of death penalty
revised by the Supreme Court, the high court of J & K
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allowed CDPK to withdraw the writ petition and file the

same in the Supreme Court.

13. Realizing that the outcome of the appeal (Cr. App.

No. 221 of 2018) Depends upon the challenge raised
against the death penalty in W.P.No. Of 2018, the chief
justice of India clubbed the two cases and placed it up for
consideration before the appropriate bench.

QUESTIONS PRESENTED

1. Whether the trial Court and the High Court of J&K

were correct in finding the accused guilty of murder?
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2. Whether the trial court and the High Court of J&K

were correct in finding accused no.3 guilty of rape
and accused no. 1 and 2 guilty of abetment to rape?

3. Considering the need to re-consider Bachan Singh V.

State of Punjab, whether death penalty is
constitutionally valid in the light of the same?

4. Assuming that death penalty valid, did the trial court

err while giving death penalty to all the accused in
State of J&K V. Yousuf Khan & Ors.?

ISSUE FOR CONSIDERATION

Issue no 3:
Considering the need to reconsider BACHAN SINGH V. STATE OF PUNJAB,
whether death penalty is constitutionally valid in the light of the case?
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SUMMARY OF ARGUMENTS

May it please Your Honour I murtaza naqvi of BALLB 9th

Semester, the arguments on behalf of appellant
submitted as under:

Your Honor,
Kindly have a glance towards the fact that the death
penalty pronounced in Yousuf v. State is constitutionally
invalid.
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Arguments (Pleadings) Your Honor

1. That The death penalty pronounced in Yousuf khan v state
Jammu and Kashmir is constitutionally invalid in the light
of Bachan singh v state of Punjab
Because as there is no such evidence which directly or
indirectly shows the involvement of the Appellants in the
commission of murder and rape and the impugned order
dated 06.05.2018 of trial court is against the principles of
natural justice and it violates the fundamental rights of
the Appellants guaranteed by part third of the
constitution.

Your Honor
2. That if we see the circumstances of Bachan Singh’s case.
Firstly he was convicted for the murder of his wife and he
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underwent life imprisonment .when he was released

from jail he came to stay with his cousin Hukum singh this
was objected by hokum Singh’s wife and son Desa singh
and the appellant therefore developed a grievance
against family, while hokum singh and his wife were away
in other town the appellant taking advantage of the
situation killed Desa Singh and two sisters and grievously
injured a third with( kulhari ) axe in an unusually brutal
manner. He was awarded death sentence. Because his
case falls within the definition of rarest of rare cases as he
was committed heinous crime.

Your Honor
3. That on the other hand if your Honor draw your kind
attention on the facts of instant case this case is totally
different from Bachan sighs case, in the instant case the
Appellants were charged under section 302 for
committing murder of deceased’s and under section
375 for committing rape of deceased no 2 Seema but
prime facie the prosecution has failed to produce any
such evidence which shows the involvement of the
Appellants in the commission of murder and rape.

4. That in the instant case the trial court convicted the

Appellants only on the evidence of hearsay witness and
hostile witness which is not a sufficient evidence to
convict a person to death sentence because life
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imprisonment is rule and death sentence is an exception.

And the in the instant case was based on presumptions
and suspicions. There is no piece of substantive evidence
on the record which shows the link of Appellants to the
occurrence of crime.

YOUR HONOR
5. That in the instant case the prosecution alleged before
the trial court that when the deceased’s were eloped
from their respective homes the Appellants were used
abusive languages against the deceased no 1 sabz afridi
and beaten up his younger brother but the prosecution
failed to prove that the Appellants were went at deceased
no 1 home. This was only apprehension of deceased no 1
and his family members as there was no complaint in
police station regarding this incident which shows the
involvement of the Appellants. There was no evidence
except the prosecution witness no 1 Inzimam PW_1 who
overheard deceased no 2 SEEMA father talking about
killing someone however he was not sure who were the
father and son due talking about .On the statement of
prosecution witness no 1 the court presumed that
Appellants have been killed sabz afridi deceased no 1 and
his wife seema deceased no 2 however nothing like this
happened. And the statement of prosecution witness no
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1does not prove that the persons talking about killing

someone were the appellants.

YOUR HONOR
6. That the as regards to the statement of SULA BABA PW_2
that again on 12th march at about 6:00 pm when deceased
no 1 and 2 were beaten up by some unidentified persons
he stated that he saw the car bearing no JKO1AB 9K9K
registered under Yusuf khans name leaving the raj bagh
locality at 9:00pm in the evening. The witness was not
cross examined by defence during trial because according
to the police report it was found that the Appellant no 1
was not in town when this incident occurred. The
statement of the prosecution witness does not prove that
the appellants were the unidentified persons. Secondly
the prosecution witness failed to recognise the car
bearing no as such there was no such registration no in
the valley and prosecution failed to produce the
registration certificate of the car during the trial which
shows that the car belongs to Appellant no 1 the
statement itself shows that the appellants were not
linked with this killing.

YOUR HONOR
7. That after six months i.e. on 11th October when deceased
no sabz afridi and deceased no 2 seema not returned
home and on the information of Nazim shah resident of
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lalbazar police found the dead bodies lying on the bank of

Nigeen River. On the basis of suspicion police arrested the
appellants and charged them for the murder of deceased
no 1 Sabz Afridi and deceased no 2 Seema under section
302 of ipc and 375 of IPC.

YOUR HONOR

8. That the evidences produced by the prosecution during

trial the prosecution contended that accused no 4 MOHD
SAHMI confessed to the crime in the police station and
voluntarily took Narco analysis test in the absence of
lawyer which is also against the principles of criminal
jurisprudence as well as it is against the fundamental
rights guaranteed under Article 20(3) of the constitution.
Because the narco analysis test was done without the
consent of the accused and in the absence of lawyer and
he was compelled to give evidence against him these
testimonial compulsions are prohibited by Article 20(3) of
the constitution, this test does not fall within the scope of
section 53 of CRPC.The protection of self-inclination is
available at the stage of investigation also and it is also
available to witness .Article 21 of the constitution
disapproves of voluntarily testimony irrespective of the
nature and degree of coercion, threats, fraud or
inducement used to elicit evidence .
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YOUR HONOR
9. That the confession of accused no 4 which was recorded
in the police station when he was in police custody as such
cannot be proved against the appellants in the light of
provisions contained in section 24 to 26 of Indian
Evidence Act .The Hon’ble Supreme court in BHADUR
SINGH AND ANOTHER V STATE OF VIND
REPORTED IN AIR 1954 SC 322 PARAGRAPH 23
AND HAZARI LAL V STATE OF DELHI ADM
REPORTED IN 1980SC;In these cases it was held
that confession made to the police officer or in the
custody of police to any person whomever unless
made in the immediate presence of Magistrate shall
be presumed to have been obtained under the
circumstances mentioned in section 24 of Indian
Evidence Act and inadmissible except so for as
provided by section 27 of Indian Evidence Act .

YOUR HONOR
10. That so far as the Norco Analysis test is concerned
which is administered in the absence of lawyer the
Hon’ble supreme court in Selvi v state of Karnataka AIR
2010 SC 1974 Laid down the following guidelines for lie
Detector tests the Hon’ble court observed that :
1: No lie Detector test should be administered except on
the basis of the consent of the accused .An option should
be given to the accused whether he wishes to avail such
test.
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2: If the accused volunteers for a lie detector test, he

should be given access to a lawyer and physics,
emotional and legal implications of such a test should be
explained to him by the police and his lawyer.
3: The consent should be recorded by a judicial
magistrate.

4: During the hearing before the magistrate, the person

alleged to have agreed should be dully represented by a
lawyer.

5: At hearing the person in question should also be told in

clear terms that the statement that if made shall not be a
confidential statement to the magistrate but will have the
statement made to the police.

6: The magistrate shall consider all the factors relating to

the detention including the length of detention and the
nature of the interrogation.

7: The actual recording of the lie detector shall be done

by an independent agency (such as hospital) and
conducted in the presence of a lawyer.

8: A full medical and factual narration of the manner of

information received must be taken on record, But in the
intact case the police has not fulfilled any of the above
mentioned formality and the Narco analysis test was
conducted under compulsion and the consent was obtained
by force, duress and coercion without explaining the accused
the implications of such test and the same is conducted in the
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absence of lawyer which is clearly the violation of

fundamentals rights guaranteed under Article 20(3) as well as
Article 21 of the constitution.
YOUR HONOR
11. That it is pertinent to mention that the statement
recorded in the police station is not a substantive
evidence because it was not recorded in the presence of
Appellants and no opportunity is given to appellants to
cross examine the witness, because it was recorded rest
inter alia acta recorded behind the back of the
Appellants, Because the previous statement of the
witness before the investigation officer cannot be treated
as substantive evidence. The prosecution is circumstantial
because to prove a person guilty of an offence the
circumstances should be of conclusive nature and
tendency. There must be a complete chain of evidence so
complete as not to leave any and must show that in all
human probability the act must have been done by the
accused, but in the instant case the prosecution has not
produced any evidence on record which shows the
complete chain of evidence. Further no opportunity
under section 313 of CRPC was put to appellants during
trial stage to explain evidence/circumstances arising out
of previous statement of PW 4 Recorded in the police
station.
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YOUR HONOR
12. That as per the principles of criminal jurisprudence the
case of prosecution is required to stand on its own feet
and not by weakness of defence case. In this case the
prosecution failed to prove its case beyond reason doubt
.The entire prosecution case is based on the
circumstantial evidence and presumptions .It is well
settled law that when the case is based on circumstantial
evidence, the evidence should be so strong as to point
unmistakeably to the guilt of the accused. Strong
suspicion cannot take place of proof and the defence case
has to be accepted and the accused person should be
given the benefit of doubt .As the Hon’ble court in M.G
AGARWAL V STATE OF MAHARASHTRA AIR
1963 SC .200. In this case the hon’ble Supreme
Court held that if circumstances proved in a case are
consistent either with the innocence of the accused
or with his guilt the accused is entitled to benefit of
doubt. When it is held that a certain fact has been
proved then the question that arises whether such
fact leads the inference of guilt on the part of the
accused person or not and in dealing with this aspect
of problem benefit of doubt must be given to the
accused.

YOUR HONOR
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13. The appellants have been awarded one of the harshest

punishment of death sentence on the basis of mere
presumptions and inferences as opposed to the
underlying principles of criminal jurisprudence of
convicting only on the basis of clinching direct or
circumstantial evidence to prove the charge beyond a
shadow of reasonable doubt .It is pertinent to mention
here that there is not even a single piece of evidence or
even a reliable statement made by any of the prosecution
witness against the appellants which proves that the
alleged crime was committed by appellants.

YOUR HONOR

14. That as regard to the second charge the post mortem

report of deceased no 2 Seema shows the deceased was
raped before death there is no such evidence except the
medical report that she was raped by appellant no
3.According to charge sheet of police all the accused were
involved in the killing ;But how is it possible that father
can allow any person to rape his daughter in front of him
because she married against his will .No doubt she was
married without his permission but it is not possible that
a father can allow anyone to do such shameful act. During
trial the appellants pleaded that they were not satisfied
with autopsy report and they want it from other agency
i.e., any other Govt hospital for their satisfaction, but no
opportunity was given to them and trial rejected the plea
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Secondly the chief examiner of the Forensic Lab Srinagar

Dr Asghar Farooq was also not produced before the court
during trial for cross examination. The trial court
convicted appellants only on medical evidence and the
Hon’ble court in S.GOPALA REDDY V STATE OF
ANDRA PARDESH .AIR 1996 SC 2184. The
supreme court held that an expert evidence is weak
type of evidence courts do not consider it as
conclusive and therefore it is not safe to rely upon it
without seeking independent and reliable
corroboration. According to section 45 of Indian
Evidence Act the opinion of the expert will not be read
into evidence unless he is examined before the court and
is subjected
to cross examination .An expert is not a witness of fact.
His evidence is only of advisory character .and it was held
by The Hon’ble Supreme Court in;
STATE OF MAHARASHATRA V DAMU
GOPINATH SHINDE AIR 2000 SC 1691
The Supreme Court in this case ruled that without
examining the expert as witness in the court, no reliance
can be placed on expert evidence.

YOUR HONOR

15. That the prosecution is failed to produce the call details

of the appellants before the trial court during trial
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although not admissible but which may show that at the

time of the occurrence they were in contact with each
other.

YOUR HONOR SHIP

That the trial court used in coming to a decision on the basis
of assumption and presumption in the absence of cogent
direct, indirect oral and circumstantial evidence contrary to
the settled law as per which no criminal liability can be fixed
on based on presumption, assumption, doubt and suspicion
without any legal evidence to support such conviction.
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PRAYER

Keeping in view the aforesaid facts and circumstances of

this peculiar case, this Hon’ble court may exercise their extra
territorial jurisdiction and award the following:

1. To issue a writ, order or direction in the nature of

certiorari to set aside, quash the impugned order of trial
court.

2. To issue a writ ,order or direction in the nature of

Mandamus directing the respondents to withhold the
execution of the sentence till the finalization of the
appeal on the merits of this case at an appropriate
forum, and or
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3. To issue a writ, order or direction in the nature of

MANDAMUS suspends the sentence and directing the
respondents to release the appellants from the prison.

4. Pass or issue any order, direction or writ as the Hon’ble

court may deem fit and proper in the facts and
circumstances of the peculiar case.

PETTIONER THROUGH COUNSEL

ADVOCATE

Murtaza Naqvi