MEMORIAL ON BEHALF OF RESPONDENTS

PRESTIGE INSTITUTE OF MANAGEMENT AND RESEARCH, DEPARTMENT OF LAW

MOOT COURT EXERCISE, 2021

IN THE HON’BLE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2016

ABHISHEK…………………………………………………………...…………
PETITIONER

Versus

UNION OF INDIA………………………………………………….………RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

WITH

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2016

NITIN………………………………………………………………....………PETITIONER

Versus

UNION OF INDIA…......………………………………………………....... RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

MOST RESPECTFULLY SUBMITTED,

COUNSELS APPEARING ON BEHALF OF THE RESPONDENTS.

MAYANK SARAF

ROLL. NO. 162018

BA. LL. B X SEM

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TABLE OF CONTENTS

 TABLE OF CONTENTS........................................................................................................................1

 LIST OF ABBREVIATIONS.................................................................................................................3

 INDEX OF AUTHORITIES...................................................................................................................4

 STATEMENT OF JURISDICTION......................................................................................................6

 STATEMENTS OF FACTS...................................................................................................................7

 ISSUES RAISED....................................................................................................................................10

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS

MAINTAINABLE OR NOT?...........................................................................................................................10

2. WHETHER THE ORDER OF THE SESSIONS COURT AND HIGH COURT WAS VALID OR

NOT? 10

3. WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF OFFENCE

COMMITTED...................................................................................................................................................10

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

10

5. WHETHER THE ACT IS IN CONTRAVENTION WITH THE INTERNATIONAL NORMS?.....10

 SUMMARY OF ARGUMENTS...........................................................................................................11

 ARGUMENT ADAVANCED.................................................................................................................I

[1]. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS

MAINTAINABLE OR NOT?...........................................................................................................................I

[1.1]. NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND SUBSTANTIAL

JUSTICE HAS BEEN DONE IN THE PRESENT CASE................................................................................I

[1.2]. NO IRREGULARITY OF PROCEDURE OR VIOLATION OF PRINCIPLE OF NATURAL

JUSTICE HAS BEEN DONE.........................................................................................................................II

[1.3]. NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE..........................III

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[2]. WHETHER THE ORDER OF THE JJ BOARD, SESSIONS COURT AND HIGH COURT

WAS VALID OR NOT...................................................................................................................................III

[2.1]. THE PROCEEDINGS OF THE JJ BOARD AND SESSIONS COURT WERE JUSTIFIED.......IV

[2.2]. THE SENTENCE AWARDED BY THE HIGH COURT WAS JUSTIFIED..................................V

[3]. WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF OFFENCE

COMMITTED...............................................................................................................................................VII

[3.1]. THE TRUE TEST OF JUVENILITY SHOULD LIE IN THE MENTAL MATURITY OF THE

PERSON NOT HIS/HER AGE...................................................................................................................VIII

[3.2]. UNDUE SYMPATHY WITH JUVENILE OFFENDERS WILL UNDERMINE OUR JUDICIAL

SYSTEM IX

[4]. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR SEEKING

ACQUITTAL....................................................................................................................................................X

[4.1] THERE WAS THE COMMISSION OF AN ILLEGAL ACT........................................................XI

[4.2] THERE MUST BE COMMON INTENTION OF ALL TO COMMIT A CRIMINAL ACT...........XI

[4.3] THERE MUST BE PARTICIPATION OF ALL IN THE COMMISSION OF OFFENCE IN

FURTHERANCE OF THAT COMMON INTENTION...............................................................................XII

[5]. WHETHER THE ACT IS IN CONTRAVENTION WITH THE INTERNATIONAL NORMS

XIII

[5.1] THE ACT IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN RESPECT OF

JUVENILES...............................................................................................................................................XIV

 PRAYER............................................................................................................................................XVII

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LIST OF ABBREVIATIONS

AIR All India Report

Anr. Another
Art. Article
Cal Calcutta High Court
cl. Clause
Cri LJ / Cr LJ Criminal Law Journal
ed. Edition
govt. Government
HC High Court
Hon’ble Honorable
HP Himachal Pradesh
JJ Juvenile Board
IPC Indian Penal Code
Mad Madras
Ltd. Limited
No. Number
ors. Others
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
U.O.I. Union of India
v. Versus

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INDEX OF AUTHORITIES

CASES
 Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC).
 State of U.P. v. Anil Singh, AIR 1988 SC 1998.
 Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC
223.
 Hem Raj v. The State of Ajmer, 1954 SCR 380.
 State of H. P. v. Kailash Chand Mahajan, (1992) AIR 1277 (SC).
 P.S.R. Sadhanantham v. Arunachalm & Ors. , (1980) 3 SCC 141
 Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC).
 Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., (1999) 8 SCC 1 (SC).
 Jamshed Hormsuji Wadia v. Board of Trustees, Port of Mumbai AIR 2004 SC 1815.
 Parichat v. State of Madhya Pradesh, AIR 1972 SC 535.
 Dhansai v. State of Orissa, AIR 1969 Ori 105.
 State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC).
 Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974 SC 514.
 Sharif Ahmad Alias Achhan, (1956) 2 All 188.
 Bhopal Singh v. State of Rajasthan AIR 1968 Raj 305.
 Maqsoodan v. State of UP, 1983 Cr LJ 218 (SC).
 Hardev Singh v. State of Punjab, AIR 1979 SC 179.
 Union of India & Ors v. Su Pandurang Tukia and Bhillia v. State of Hyderabad, AIR
1955 SC 331.
 Akanda v. Emperor, AIR 1944 Cal 339.
 State of M.P v. Desh Raj, (2004) 13 SCC 199.
 Idris Bhai Daud Bhai v. State of Gujarat, 2003 SCC 277.
 Union of India & Ors v. Sunil Kumar Sarkar, (2001) 3 SCC 414.
 Deepak v. State of Haryana, (2015) 4 SCC 762.
 Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484.

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

 Babloo Pasi v. State of Jharkhand 2009 (64) ACC. 754.
 Ravinder Singh Gorkhi v. State of Uttar Pradesh, (2006) 5 SCC 584.
 Gaurav Kumar v. The State of Haryana 2015 (4) SCALE5 31.
 Salil Bali v. Union of India & Anr., (2013) 7 SCC 705.
 State of Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737.
 Subramanian Swamy v. Raju, (2014) 8 SCC 390.

STATUTES

 Code of Criminal Procedure, 1973

 Indian Penal Code, 1860
 Indian Evidence Act, 1872
 Juvenile Justice (Care and Protection of Children) Act, 2015
 The Constitution of India, 1950

TREATIES

 United Nations Convention of the Rights of the Child, 1990 (CRC)

BOOKS

 Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code,
Vol I, Bharat Law House, Delhi, 27th Edn. 2013.
 Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code,
Vol II, Bharat Law House, Delhi, 27th Edn. 2013.
 K I Vibhute, P.S.A Pillai’s Criminal law, Lexis Nexis, 12th Edn. 2014.

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STATEMENT OF JURISDICTION

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

136. Special leave to appeal by the Supreme Court:

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

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STATEMENTS OF FACTS

BACKGROUND

 Abhishek, a poor boy who lived in a slum in the outskirts of the city of Indore in the
Republic of India. He studied up to Sixth Standard but then he dropped out of school
and since then, he has been in the employment of Mr. S. Verma for doing his
household. Abhishek lives in the quarter provided by Mr. Verma. It has been 6 years
since his employment.
 Mr. S. Verma had two children, a boy named Umang, aged 18 years and a girl named
Poorva, aged 16.5 years. Both Poorva & Umang treated Abhishek in a condescending
manner, they insulted him on trivial matters.
 One day, Nitin aged 16 years and 6 months, son of Mr. Dixit, neighbor of Mr. Verma,
was playing soccer in the society park. Umang & Poorva were jogging there as per
their routine. Nitin & Umang had animosity since childhood. While playing soccer,
the football hit over the head of Poorva which gave her a minor head injury. Over this,
Umang started verbally abusing Nitin, this lead to a heated quarrel between the two.
This provoked Umang to give Nitin a blow but suddenly Mr. Nagar another neighbor
came and resolved the quarrel.
 On several occasions, Umang and Poorva also verbally abused & tormented him in
public about which Abhishek complained to Mrs. Verma to which she paid no heed.
One time, while Umang was insulting Abhishek in the society doorway; Nitin saw
this & after Umang left, Nitin took this opportunity to talk to Abhishek. Both shared
the hatred for Umang & Poorva.
 On 7th March, 2015, Abhishek took leave for 3 Days from work for going to his
village with the permission of Mr. Verma. On the next day Mrs. Verma decided to go
to an exhibition along with her children. Abhishek had prior knowledge regarding it.
 At 6:30 p.m. on 8th March, 2015, Mrs. Verma reached the exhibition which was
located in the remote part of the city of Indore. when Mrs. Verma was engaged in
taking with her college friend, Poorva was taken by four persons & Umang sensed
that his sister was missing, and then he started searching her. While searching, he
reached the basement where he saw two guys were tightly holding his sister and the
other two were trying to outrage her modesty by tearing off her clothes.
When Umang tried to save his sister, one of them gave a blow by a rod on his head &
several blows over his abdomen due to which he fell unconscious. When Poorva tried
to scream, her mouth was forcefully shut and in a sudden haste she was strangulated.
When Poorva fell dead, all of the four persons fled away. Around 9:30 p.m., the guard
who came in to switch off the lights of basement discovered two bodies and thereon

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the case was reported to the nearby police station, the police arrived and the bodies
were sent for medical examination.

INVESTIGATION
 On 10th March, 2015, the investigating officer arrested Nitin on the information of
Ram Manohar who saw Nitin sneaking out of the basement on the night of 8th March,
2015. On 12th March, 2015, Investigating Officer arrested Abhishek along with
Mayank, aged 16 years & Ranveer, aged 16 years who were Nitin’s friends.
 The postmortem report revealed that Umang died due to head injury & internal
bleeding and Poorva died due to suffocation caused by strangulation. Her clothes
were torn & the medical report also revealed the presence of several scratches &
injuries on her body.

JUDICIAL PROCEEDING
 The case was admitted to the Juvenile Board as all the boys were below 18 years of
age. On 15th May, 2015, the Juvenile Board found Nitin & Abhishek to be well aware
of the circumstances & consequences of their acts and, therefore, their case was
committed to the Session Court finding them capax of committing offence. In
addition to the above reason, Abhishek’s case was also committed to Sessions Court
due to insufficiency of the evidence of age. Both of them were tried in the court of
Session u/s 304, 326, 354 read with sec.-34 of the India Penal Code, 1860. While
Mayank & Ranveer were tried by the Juvenile Board u/s 304, 326, 354 read with sec.-
34 of the India Penal Code,1860 (hereinafter referred to as IPC, 1860).
 The parents of deceased started protest to try all the juveniles in conflict with law as
adults due to their heinous act of brutally killing both of their children rather than like
minors just because their age fell short of 18 years by just few months.
 On 9th June, 2015, the Juvenile Board found both Mayank & Ranveer guilty u/s 304,
326, 354 read with sec. - 34 of the India Penal Code, 1860 & their guilt was
corroborated by circumstantial evidence and medical evidence. The Juvenile Board
directed them to be sent to special home for a maximum period of one year. Both of
them did not prefer any further appeal.
 Both Nitin & Abhishek submitted to the Session Court that the court has no
jurisdiction to try the case, both of them being juveniles and, hence, their case should
be remanded back to the Juvenile Board. On 12th June, 2015, Nitin’s case was
remanded back to Juvenile Board but Abhishek’s submissions were rejected due to
lack of evidence of age. The Birth Certificate of Abhishek provided by the
Municipality could not be discovered so there was no evidence of his age. Then
Abhishek asserted that a Bone Test or other allied test should be conducted to
determine his age but this was rejected by the Court due to the inconclusiveness of
these kinds of tests. Later on, on 28th July, 2015, Abhishek was found guilty u/s 304
of IPC, 1860 as his fingerprints were found on Poorva’s body as per medical report

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and u/s 326 & 354 read with Section 34 of IPC, 1860 & the Court sentenced him for
imprisonment of 3 years. On 4th August, 2015, Nitin was found guilty u/s 304, 326 &
354 read with Section 34 of IPC, 1860 and this was corroborated by the statement of
Ram Manohar. The Juvenile Board directed him to be sent to a special home for a
maximum period of 3 years.

APPEAL IN SESSION COURT

 An appeal was preferred by Nitin in the Court of Session against the judgment and
order passed by the Juvenile Board. He submitted his mere presence does not prove
the guilt but the Session Court dismissed the appeal on the ground that appeal was not
maintainable as the case has proved beyond the reasonable doubts before the Juvenile
Board, moreover case also corroborated by circumstantial evidences, statement of eye
witness and medical evidence and that no other question of law was raised by the
appellant in the said appeal.

APPEAL IN HC
 An appeal was filled in the High Court by Abhishek seeking setting aside the order of
conviction stating the Court of Session has no jurisdiction to try the case & he also
raised the question regarding the justification of order passed by the Session Court
rejecting the Bone Test for determining his age.

REVISION PETITION AND REJECTION BY HC

 At the same time, a revision petition was also filed by Nitin for the quashing of order
of conviction of the Court of Session. But both the petitions were rejected by the High
Court as in the opinion of the High Court, the evidences revealed that both were capax
of committing crime & that both were acting under common consensus. The
requirement of any test to determine age was consequently rejected. In addition to
this, in the opinion of the High Court, the case was proved beyond reasonable doubts.

CONVICTION BY HC
 In the cross appeal which was filed by the prosecution against Abhishek and Nitin, it
was contended that both culprits should be convicted under Section 302 IPC instead
of 304 and this contention of the prosecution was accepted by the High Court and
Abhishek was ordered to be sentenced for a period of 10 years.

APPEAL IN SC
 On 11th January, 2016 both Abhishek & Nitin approached the honourable Apex Court
of India with Special leave to appeal & the Apex court clubbed both the Matters &
decided to hear the same.

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ISSUES RAISED

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT?

2. WHETHER THE ORDER OF THE SESSIONS COURT AND HIGH COURT

WAS VALID OR NOT?

3. WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF

OFFENCE COMMITTED

4. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR

SEEKING ACQUITTAL?

5. WHETHER THE ACT IS IN CONTRAVENTION WITH THE

INTERNATIONAL NORMS?

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SUMMARY OF ARGUMENTS

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT
It is the humble submission of the respondents before the Hon’ble Supreme Court of
India that the special leave to appeal filed by the petitioners is not maintainable as
there is no substantial question of law, no exceptional & special circumstances exist
for the present case. Further, the conviction of petitioners under u/s 304, 326 & 354 read
with Section 34 of IPC, 1860 is justified because petitioners act constitutes heinous
offence in the eye of law. Further, substantial justice has already been done by the
lower courts and JJ Board. Hence, no substantial question of law is involved and
interference is based on pure question of fact. Also, mere existence of substantial
question of law is not sufficient unless serious injustice of the substantial nature has
been occasioned and here appellants have been unsuccessful to show any exceptional
and special circumstances which exist. Hence, the petition is liable to be dismissed.

2. WHETHER THE ORDER OF THE JJ BOARD, SESSIONS COURT AND

HIGH COURT WAS VALID OR NOT
The order passed by JJ Board, Session court and High court is valid. Hon’ble HC,
Session Court and JJ Board has declared both, Abhishek ad Nitin, as the accused in
the light of the heinous acts committed by them. There was no irregularity of
proceeding in the present case. Firstly, The Sessions Court and High Court found
Abhishek guilty of the offences in light of the circumstantial and medical evidences
which were found against them. Further, he was being treated as an adult on account
of his heinous act, knowledge of his act and the less conformity of him being a
juvenile as there were no strong evidence which were supporting his juvenility.
Secondly, Nitin was found guilty by the Sessions Court and Juvenile Board upon the
ocular evidence and his common intention in furtherance of committing crime. In this
situation it can be well ascertained that, not only his appearance was considered also

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his acts were considered too. Hence, in the present case both the accused were well
aware of the circumstances of their delinquent act and hence both are capax of
committing such heinous offence. Therefore, it is most respectfully submitted that the
orders passed by both the courts and JJ Board is lawful and well justified.

3. WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF

OFFENCE COMMITTED
The juvenility should depend upon the nature of offence committed by the accused.
The true test of juvenility should lie in the mental maturity of the person not his/her
age and undue sympathy with juvenile offenders will undermine our judicial system.
That will eventually lead to serious miscarriage of justice. Further that the rate of
crime and the nature of crime in which the juvenile are getting involved, have
increased and the time has come to think of an effective way to deal with the
situation. Hence, in order to provide justice to the society as well as victim the
juvenility should be based on nature of offence considering the maturity of person
while doing such act.

4. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR

SEEKING ACQUITTAL
It is contented before this honourable Court that the decision passed by the
Honourable High Court is a reasoned decision. Also, it is further contended that Nitin
was not charged merely on the ground of presence alone. But the accused was present
at the crime scene in pursuance of a pre-planned act of taking revenge. Arguendo,
Nitin was guilty of offence having common intention which is to be read with Sec. 34
of IPC. Thus, his presence is not just a criterion to give punishment and seek acquittal
but there were other circumstances which eventually made conviction of Nitin. It is
his hatred and animosity due to which he committed such a heinous offence. It is
pertinent to mention again that, Nitin became so ambitious with the hatred against
Umang and Poorva that, he started discussing the same with their servant, Abhishek.

5. WHETHER THE ACT IS IN CONTRAVENTION WITH THE

CONSTITUTION OF INDIA AND INTERNATIONAL NORMS
It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile
Justice (Care and Protection of Children) Act. 2015 is very much in consonance with
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the provisions of several International Norms to which Republic of India is signatory

and has ratified.

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ARGUMENT ADAVANCED

[1]. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT?
1. It is most respectfully submitted before the Hon’ble Supreme Court of India that the
instant petition is not maintainable as Special Leave cannot be granted when
substantial justice has been done and no exceptional or special circumstances exist for
case to be maintainable. It will not be granted if there is no failure of justice or when
substantial justice is done.
2. Article 136 does not give a right to a party to appeal to SC rather it confers wide
discretionary power on the SC to interfere in suitable cases 1. Also in the present case,
no substantial question of law is involved and interference is based on pure question
of fact which is entitled to be dismissed. A mere existence of substantial question of
law is not sufficient unless serious injustice of the substantial nature has been
occasioned2.
3. The Supreme Court, however, does not grant leave to appeal in criminal matters
liberally. It does so only when exceptional and special circumstances exist, substantial
and grave injustice has been done, and the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against, or there has
been a departure from legal procedure such as vitiates the whole trial, or if the
findings of fact “were such as shocking” to the judicial conscience of the Court.3

[1.1]. NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND

SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE.
4. The petitioner contends that in the present case no exceptional and special
circumstances exist and substantial justice has already been done. The appellant must
show that exceptional and special circumstances exists and that if there is no
interference, substantial and grave injustice will be done to the appellant4 4 . Only then
the court would exercise its overriding powers under Art. 136 5. Special leave will not

1
Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC).
2
Hon’ble Justice Bhanwar Singh, Criminal Appeals, JTRI Journal, 1995.
3
State of U.P. v. Anil Singh, AIR 1988 SC 1998
4
Hem Raj v. The State of Ajmer, 1954 SCR 380..
5
M.P Jain, Indian Constitutional Law, LexisNexis, Nagpur, 7th Edn. 2014.

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be granted when there is no failure of justice or when substantial justice is done,

though the decision suffers from some legal errors6
5. The court has emphasized in Pritam Singh v. The State7 that, “The only uniform
standard which in our opinion can be laid down in the circumstances in that Court
should grant special leave to appeal in those cases where special circumstances are
shown to exist”. The court shall interfere with the decision under challenge only if the
extraordinary flaws or grave injustice or other recognized grounds are made out8.
6. It was also observed that, it is not possible to define the limitations on the exercise of
the discretionary jurisdiction vested in this Court under Art. 136. It being an
exceptional and overriding power, naturally, has to be exercised sparingly and with
caution and only in special and extraordinary situations 9 . Article 136 does not give a
right to a party to appeal to the SC rather it confers a wide discretionary power on the
SC to interfere in suitable cases10.
7. In the present case the appellants have been unsuccessful to show any exceptional and
special circumstances which exist. The appellants are convicted of a heinous offence
and this petition filed by the appellants is a mere vexatious attempt by them. Hence,
the petition is liable to be dismissed.

[1.2]. NO IRREGULARITY OF PROCEDURE OR VIOLATION OF PRINCIPLE

OF NATURAL JUSTICE HAS BEEN DONE.
8. In plethora of cases, it has been held that except that where there has been an illegality
or an irregularity of procedure or a violation of principle of natural justice resulting in
the absence of a fair trial or gross miscarriage of justice, the SC does not permit a
third review of evidence with regard to question of fact in cases in which two courts
of fact have appreciated and assessed the evidence with regard to such questions 11. It
is contended that this court is not bound to go into the merits and even if it were to do
so, and declare the law or point out the error, still it may not interfere if the justice of
the case on facts doesn’t require interference or if it feels that the relief could be
moulded in a different fashion12.
[1.3]. NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE
6
State of H. P. v. Kailash Chand Mahajan, (1992) AIR 1277 (SC).
7
AIR 1950 SC 169
8
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 223.
9
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, (1955) AIR 65 (SC).
10
P.S.R. Sadhanantham v. Arunachalm & Ors. , (1980) 3 SCC 141.
11
Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC).
12
Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., (1999) 8 SCC 1 (SC).

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9. It is contended by the respondents that no substantial question of law is involved in

the present case and the interference is based on pure question of fact which is entitled
to be dismissed. This court had laid down the test which says if the general principles
to be applied in determining the question of those principles the question would not be
a substantial question of law.
10. It might involve question of law but not ‘substantial’ question of law. The present
case does not involve such ‘substantial’ question of law. In Jamshed Hormsuji
Wadia v. Board of Trustees, Port of Mumbai13 the court emphasized that, “the very
conferment of the discretionary power defies any attempt at exhaustive definition of
power. The power is permitted to be invoked not in a routine fashion but in very
exceptional circumstances as when a question of law of general public importance
arises or a decision sought to be impugned before the Supreme Court shocks the
conscience. This overriding and exceptional power has been vested in the Supreme
Court to be exercised sparingly and only in the furtherance of cause of justice in the
Supreme Court in exceptional cases only when special circumstances are shown to
exist”.
11. In the present case, there is no substantial question of law involved and the question
raised in the petition is not fit for consideration by the Court. The Petitioners in this
case failed to fulfil both the criteria. It is humbly submitted before this Hon’ble SC of
Ceylonia that the SLP filed by the appellants is not maintainable as Special Leave
cannot be granted when substantial justice has been done by the HC & no exceptional
or special circumstances exist for the case to be maintainable. Also, no substantial
question of law is involved in the case in hand. Thus, a petition for grant of special
leave to appeal should be rejected.

[2]. WHETHER THE ORDER OF THE JJ BOARD, SESSIONS COURT AND

HIGH COURT WAS VALID OR NOT
12. It is humbly submitted before this Hon’ble Supreme Court that both the JJ Board and
Sessions Court has declared, Nitin and Abhishek, as the accused in the light of the
heinous acts committed by them along with the common intention in committing so.
In addition, the order of conviction upheld by the Hon’ble High Court where
Abhishek was sentenced for a period of 10 years imprisonment 14 was on account of
him being an Adult capax of having knowledge of his act and committing heinous
13
AIR 2004 SC 1815.
14
Fact Sheet, ¶

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crime. Hence, the order of conviction passed by both the JJ Board and Sessions Court
and the sentence increased by the High Court are well justified.

[2.1]. THE PROCEEDINGS OF THE JJ BOARD AND SESSIONS COURT WERE

JUSTIFIED
13. It is contended by the respondents that the proceedings of the Sessions Court ad JJ
Board in the present case are justified and lawful. There was no irregularity of
proceeding in the present case.

[2.1. 1]. THERE WAS SUBSTANTIAL MEDICAL EVIDENCE AGAINST ABHISHEK

14. The Sessions Court found Abhishek guilty of the offences in light of the
circumstantial evidences which found against him and the nearest possibility of he
being Adult. Which ultimately through his appearance and act proved him to be an
Adult. According to the Medical Report, the fingerprints of Abhishek were found on
Poorva’s body which led the court upon that decision. Recently, in a case15 the court
emphasized that, “even the medical evidence supports the commission of sexual
violence on the victim and we need not elaborate on this issue any more in the light of
concurrent finding of the courts below having been recorded against the Appellant
holding in clear terms that sign of commission of rape on the victim by the Appellant
stood proved by medical evidence beyond reasonable doubt”. In the present case, the
fingerprints of Abhishek on the body of Poorva were enough to prove that the heinous
offence was committed by him.

[2.1. 2]. THERE WAS OCULAR EVIDENCE AGAINST NITIN

15. The second accused in the present case i.e., Nitin was found guilty by the Sessions
Court upon the statement of Ram Manohar. He is the same person who saw Nitin
escaping out of the basement, where the whole crime took place, at the night of the
crime. It has been held in plethora of cases that wherein there is a difference of
opinion regarding the ocular and medical evidence, the ocular evidence always
supersedes the medical evidence.
16. Since witnesses are the eyes and ears of justice, the oral evidence has primacy over
the medical evidence. If the oral testimony of the witnesses is found reliable,
creditworthy and inspires confidence, the oral evidence has to be believed, it cannot

15
Deepak v. State of Haryana, (2015) 4 SCC 762

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 MEMORIAL ON BEHALF OF RESPONDENTS

be rejected on hypothetical medical evidence 16The testimony of the eye witnesses

cannot be thrown out on the ground of alleged inconsistency between it and the
medical evidence17.
17. Thus, the position of law in cases where there is a contradiction between medical
evidence and ocular evidence can be crystallized to the effect that though the ocular
testimony of a witness has greater evidentiary value vis-`-vis medical evidence, when
medical evidence makes the ocular testimony improbable, that becomes a relevant
factor in the process of the evaluation of evidence 18. Ad in the present case there was
o contradiction with regard to the ocular and medical evidence, ocular evidence was
itself sound enough to confirm the presence of Nitin at a crime place ad his
participation in furtherance of its commission.
18. Hence, on relying to the sound evidences found against petitioners it is contended that
the JJ Board & Sessions Court were justified in convicting both the accused for
committing such heinous offences respectively.

[2.2]. THE SENTENCE AWARDED BY THE HIGH COURT WAS JUSTIFIED

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

[2.2.1]. THERE WAS NO NEED FOR AGE DETERMINATION OF ABHISHEK.

20. It is humbly contended before this honourable court the reasons given by High Court
while rejecting the petition stated that, Abhishek was well aware of the circumstances
and consequences of his delinquent act and therefore he was considered capax of
committing crime. It has been held by the courts in their judgments where if the court
by the appearance of the person can determine if the person is adult then he will be
considered adult. The court in the case of Babloo Pasi v. State of Jharkhand19 opined
that by observing the physical built up of the person, it can be ascertained that he is an
adult. It would be a duty of the court to accord the benefit to a juvenile, provided he is

16
Hon’ble Justice M.L Singhal, Medical Evidence and it’s use in trial of cases, J.T.R.I. Journal, Issue – 3,
September, 1995.
17
Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484.
18
Abdul Sayeed vs State Of M.P, (2010) 10 SCC 259.
19
2009 (64) ACC. 754

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 MEMORIAL ON BEHALF OF RESPONDENTS

one, to give such benefit to one who in fact is not a juvenile may cause injustice to the
victim20.
21. In this situation it can be well ascertained that, not only his appearance was
considered also his acts were considered too. Hence, in the present case the accused
was well aware of the circumstances of his delinquent act and hence he was capax of
committing such a heinous offence. It is further contended before this Hon’ble Court
that the orders pass by H.C. court is well justified.

[2.2.2]. LESS RELIABILITY OF OSSIFICATION TEST TO DETERMINE THE AGE

OF A JUVENILE: THE OSSIFICATION TEST IS UNCERTAIN AND
INACCURATE.
22. It is submitted before the Hon’ble court that; the ossification test does not yield
absolute result there is always a margin of error and so the courts have taken judicial
notice of this fact and have always held that the evidence afforded by radiological
examination can be a guiding factor for determining the age of a person 21 but the
evidence is not of a conclusive and incontrovertible nature and it is subject to a
margin of error22. hence it is not conclusive23.
23. Moreover, it is submitted that, Section 35 of the Evidence Act for proving an entry
pertaining to the age of a student in a school admission register is to be considered for
the purpose of determining the relevance thereof. So, an entry in a school register may
not be a public document and, thus, must be proved in accordance with law24.
24. It is most humbly submitted that, since the ossification test is conducted by a medical
expert so absolute should not be placed upon it as Section 45 of the Indian Evidence
Act, 1872 clearly explains that this medical report can be accepted as a relevant fact
but it needs to be corroborated with other sources to be considered as a valid evidence
in the court of law25. Hence the evidence of an expert is a rather weak type of
evidence and the courts do not generally consider it as offering 'conclusive' proof and
therefore safe to rely upon the same with the corroboration of an independent and
reliable piece of evidence26.

20
Ravinder Singh Gorkhi v. State of Uttar Pradesh, (2006) 5 SCC 584.
21
Mukarrab v. State of U.P., AIR 2016 SC 1413.
22
Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133.
23
State of M.P v. Anoop Singh, (2015) 7 SCC 773
24
Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681
25
Section 45 of the Indian Evidence Act, 1872.
26
S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596.

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 MEMORIAL ON BEHALF OF RESPONDENTS

25. Therefore, it is submitted before the Hon’ble S.C. that first of all Abhishek through
his appearance and act is an Adult in the eye of law and if we look into the facts his
age (with regard to his schooling and in employment) is as near to an adult. In
addition, there was no matriculation certificate and the result of ossification test are
not accurate and certain. Hence in order to meets the end of justice the conviction by
Session court and Hight Court is justified and correct. As if the court will treat a
person, committer of heinous offence who is nearly an adult as juvenile then there
will be more chances that he can repeat his crime. Because generally the past criminal
records of juveniles are directed to be vanished once they complete their duration in
reformative homes and conviction if any. Hence in such circumstances there will be
chance of miscarriage of justice.
26. Hence, in the light of above contentions, respondents respectfully submits that the
conviction passed by JJ Board, Session Court and High Court is justified and should
not be set aside as the false and vexatious contentions by petitioners will only lead in
the wasting of the time of Apex court.

[3]. WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF

OFFENCE COMMITTED
27. The respondents contends that the juvenility should always depend upon the nature of
offence committed rather than the age of the person. The government has laid various
legislation and rules to stop the incidents of juvenile crimes but the present laws on
juveniles is not creating a deterrent effect on the juveniles and thus the results are not
fruitful and legislative intent is not accomplishing. As crime rates among juveniles is
rapidly increasingly. Juvenility criteria needs to be curtailed down and be more
refined bearing in mind the nature of offence and maturity of person at the time of
committing it, then only it can be curbed.
28. The SC has strongly emphasized for a development in the current legislation relating
to juvenile offender in the case of Gaurav Kumar v. The State of Haryana 27 where it
observed that the rate of crime and the nature of crime in which the juvenile are
getting involved, have increased and was of the view that a time has come to think of
an effective law to deal with the situation.

27
¶ 9, 2015 SCC OnLine SC 287.

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 MEMORIAL ON BEHALF OF RESPONDENTS

[3.1]. THE TRUE TEST OF JUVENILITY SHOULD LIE IN THE MENTAL

MATURITY OF THE PERSON NOT HIS/HER AGE.
29. It is humbly submitted before this Hon’ble Court that laying down an authoritative
interpretation to Section 2(k) and 2(l) set out therein should be based on the mental
maturity of the person rather than his age. The NCRB report 28 shows that the rate of
Crimes committed by Juveniles has shown an increase over almost 6% in 2018. A
total of 31,591 crimes committed by juveniles were reported in 2018. In addition, over
40,000 juveniles caught in 2017, 72 per cent in 16-18 age group and in the last few
decades, the crime rate by the children under the age of 16 years has also increased.
30. The Juvenile Justice Board should be vested with the discretion to impose punishment
beyond three years, as limited by Section 15 29but if the juvenile is mature enough and
has committed grave offence then they should be punished accordingly.
31. It is quite evident prima facie, the act of Abhishek which comprised of committing
sexual assault on a helpless girl followed by committing murder of her and his
brother30 implies that he does not deserve to be treated as a juvenile. The idea behind
the act was to provide immunity to adolescents who commit crime and take steps to
reintegrate them in the society but person like Abhishek would pose a serious threat to
the society if they would be treated as Juvenile.
32. It is submitted before this Hon’ble Court that having regard to the object behind the
enactment, the Act has to be read down to understand that the true test of juvenility is
not in the age but in the level of mental maturity of the offender. Thus, it is contended,
would save the Act from unconstitutionality and also further its purpose. The Act is
not intended to apply to serious or heinous crimes committed by a juvenile.
33. The provisions of Sections 82 and 83 of the Indian Penal Code states that while a
child below 7 cannot be held to be criminally liable 31the criminality of those between
7 and 1232 years has to be judged by the level of their mental maturity. The same
principle should apply to all children beyond 12 and up to 18 years also. This is how
the two statutes i.e., Indian Penal Code 33 and the Act has to be harmoniously
understood.

28
National Crime Bureau Report ‘Crime in India’, 2018.
29
Juvenile Justice (Care and Protection of Children) Act, 2015.
30
Moot Preposition
31
Section 82, The Indian Penal Code, 1860.
32
Section 83, The Indian Penal Code, 1860.
33
1860

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 MEMORIAL ON BEHALF OF RESPONDENTS

34. In the Bombay Blasts Case34, a juvenile was tried and convicted along with adults
under the Terrorist and Disruptive Activities Act (TADA), and was denied the
protection of the Juvenile Justice (Care and Protection of Children) Act, 2000, on
account of the serious nature of the offence and was contend that the purport and
effect of Section 1(4)26 of the Act (Amendment 2006) must be understood in a
limited manner.
35. Elaborate statistics have been laid before us to show the extent of serious crimes
committed by juveniles and the increase in the rate of such crimes. Also, if mature
and cognitive individuals are given the armour of a Special Law allowing them to
commit offences under the Indian Penal Code without any liability, they would breed
within themselves enraged criminals with psychotic tendencies. This is against the
principles of natural justice and against the nature of an intelligent civilized society.
36. In the case of Bachan Singh35 and Machhi Singh36the court laid down various
principles for awarding sentence and said that the age of the accused is a relevant
consideration but not a determinative factor by itself.
37. Therefore, respondent after taking note of stated law, precedents and factcheck reality
on increasing juvenile crimes most respectfully submits that the true test of juvenility
should lie in the mental maturity of the person not his/her age.

[3.2]. UNDUE SYMPATHY WITH JUVENILE OFFENDERS WILL UNDERMINE

OUR JUDICIAL SYSTEM
38. It is humbly submitted that the ban on jurisdiction of criminal courts by Section 7 of
the Act37 is unconstitutional in as much as it virtually ousts the criminal justice system
from dealing with any offence committed by a juvenile. Parliament cannot make a law
to oust the judicial function of the courts or even judicial discretion in a matter which
falls within the jurisdiction of the courts. Reliance in this regard is placed on the
judgments of Supreme Court in the case of Mithu vs. State of Punjab38 and Dadu vs.
State of Maharashtra39.
39. It is submitted that punishment should always be proportionate/commensurate to the
gravity of offence.40 The same has been reiterated in the case of Ravji @ Ram
34
Essa@ Anjum Abdul Razak Memon vs State of Maharashtra, (2013) 13 SCC 1
35
Bachan Singh v. State of Punjab, AIR 1980 SC 898.
36
Machi Singh v. State of Punjab, AIR 1983 SC 957.
37
Supra
38
(1983) 2 SCC 277
39
(2000) 8 SCC 437.
40
State of Rajasthan v. Vinod Kumar, (2012) 6 SCC 770

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 MEMORIAL ON BEHALF OF RESPONDENTS

Chandra vs. State of Rajasthan41, where the Court held that it is the nature and
gravity of the crime but not the criminal, which are germane for consideration of
appropriate punishment in a criminal trial.
40. In Jai Kumar vs. State of Madhya Pradesh42, the SC confirmed the death penalty of
the person accused of rape and opined imposition of appropriate punishment is the
manner in which the courts respond to the society's cry for justice against the
criminals. Justice demands that courts should impose punishment befitting the crime
so that the courts reflect public abhorrence of the crime. The court must not only keep
in view the rights of the criminal but also the rights of the victim of crime and the
society at large while considering imposition of appropriate punishment.43
41. It is urged before this Hon’ble Court that undue sympathy to impose inadequate
sentence would do more harm to the justice system to undermine the public
confidence in the efficacy of law and society could not long endure under such serious
threats.44 It is, therefore, the duty of every court to award proper sentence having
regard to the nature of the offence and the manner in which it was executed or
committed etc.
42. It is submitted before this Hon’ble Court that it should hear the loud cry for justice by
the society in cases of the heinous crime of Sexual Assault and murder45which is the
case here with Petitioners. The counsel respectfully submits that if a person is old
enough to rape then he is old enough to be tried along with adults and that is why he
contends that the criterion of eighteen years set out in the JJ Act should not
comprehend cases of grave offences in general and of heinous crimes against women
in particular that shakes the root of humanity in general.

[4]. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR

SEEKING ACQUITTAL
43. It is submitted that the decision passed by the Hon’ble High Court is a reasoned
decision. Also, it is further contended that Nitin was not charged merely on the
ground of presence alone, following reasons were given by the honourable Court to
come to this decision: firstly, both (Abhishek and Nitin) of them were well aware of
circumstances and consequences of their delinquent acts. Secondly, both were capax
41
AIR 1996 SC 787.
42
(1999) 5 SCC 1.
43
Dhananjoy Chatterjee vs State of West Bengal, (1994) 2 SCC 220
44
State of Uttar Pradesh vs Sattan alias Satyendra and Ors, (2009) SCC 736
45
State of Karnataka v. Krishnappa. 2000(5) SCC 75.

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 MEMORIAL ON BEHALF OF RESPONDENTS

of committing the crime. Thirdly, both were acting in common consensus and lastly
the case was proved beyond reasonable doubts.
44. It is contended by the respondents that Nitin had worked in furtherance of the
common intention to commit the offences against Umang and Poorva. In order to
attain his common final object of taking revenge from Ravi against the long-lasting
animosity.
45. To attract the application of section 3446 the following three conditions must
exist:
a. Criminal act must be done by several persons;
b. There must be common intention of all to commit that criminal act;
c. There must be participation of all in the commission of offence in furtherance
of that common intention47.
46. The first element is well proved. Several persons contended here are Mayank,
Ranveer, Abhishek and Nitin. In furtherance of the common intention, several persons
must have done several acts which together constitute an offense. In such a situation
S.34 provides for each to be liable for the entire act as a whole48.

[4.1] THERE WAS THE COMMISSION OF AN ILLEGAL ACT

47. It is not necessary to prove an overt act by a particular person in order to convict the
person. Criminal act done by all or one of them in furtherance of the common
intention of all would suffice to convict all the people 49. It is contended that the
criminal act of murder was done by all the four accused in the furtherance of their
common intention.
48. Lastly, culpability of a person under S. 34 cannot be excluded merely because he was
not present at the scene of the occurrence of the particular offense for which he has
been charged50.

[4.2] THERE MUST BE COMMON INTENTION OF ALL TO COMMIT A

CRIMINAL ACT
49. It is presumed that every sane person intends the result that his action normally
produces and if a person hits another on a vulnerable part of the body, and death
46
Sec.34. 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.
47
Parichat v. State of Madhya Pradesh, AIR 1972 SC 535.
48
Dhansai v. State of Orissa, AIR 1969 Ori 105.
49
State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC).
50
Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974 SC 514.

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 MEMORIAL ON BEHALF OF RESPONDENTS

occurs as a result, the intention of the accused can be no other than to take the life of
the victim and the offence committed amounts to murder51. The intention to cause
damage or injury to either public or any person has to be there. Intention connotes a
conscious state in which mental faculties are roused into activity and summoned into
action for the deliberate purpose of being directed towards a particular and specified
act.
50. Intention has been defined as the fixed direction of the mind to a particular object, or
a termination to act in a particular manner. So, the intention of the person can be
gathered from the action of the person52Nitin had animosity since childhood with
Umang. Abhishek and Nitin had shared the hatred for Umang and Poorva. Which is
enough to show that Nitin had intention to take revenge from Umang and Poorva by
any means. Common intention comes into being prior to the commission of the act in
point of time53.
51. Therefore, there needs to be a prior plan to commit a crime. This pre-arranged plan
however need not be an elaborate one 54. A mere existence of a pre-arranged plan that
the offense be conducted is enough to satisfy this element. In most circumstances,
proof of common intention has to be inferred from the act or conduct or other relevant
circumstances of the case at hand55.
52. Moreover, the intention to kill is not required in every case, mere knowledge that
natural and probable consequences of an act would be death will suffice for a
conviction under s. 302 of IPC56. The common intention must be to commit the
particular crime, though the actual crime may be conducted by anyone sharing the
common intention57.
53. Therefore, it is contended by the prosecution that while the act of murder was
conducted in furtherance of the common intention between the two accused which can
be inferred from their frequent discussions on what it would mean if Umang were to
die one day, a common intention to commit the offense of murder.

51
(1951) 3 Pepsu LR 635.
52
Kesar Singh v. State of Haryana, (2008) 15 SCC 753.
53
Sharif Ahmad Alias Achhan, (1956) 2 All 188.
54
Bhopal Singh v. State of Rajasthan AIR 1968 Raj 305.
55
Maqsoodan v. State of UP, 1983 Cr LJ 218 (SC).
56
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
57
Hardev Singh v. State of Punjab, AIR 1979 SC 179.

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[4.3] THERE MUST BE PARTICIPATION OF ALL IN THE COMMISSION OF

OFFENCE IN FURTHERANCE OF THAT COMMON INTENTION.
54. The principle of Common Intention embodies the concept of Joint Liability and says
that all those persons who have committed a crime with a common intention and have
acted while keeping in mind the common intention, should be liable for the acts of
another done in common intention as if the act is done by the person alone58 .
55. The ‘common intention’ implies a prior concert, that is, a prior meeting of minds and
participation of all the members of the group in the execution of that plan 59. Common
intention also means a desire to commit a criminal act without any contemplation of
offence60. It deals with doing of several acts, similar or diverse in furtherance of
common intention61. Direct proof of common intention is seldom therefore intention
could be inferred from circumstances. The court must draw inferences based on the
premises presented by the Prosecution62.
56. In the immediate matter, the circumstances undeniably point towards existence of a
pre-arranged plan on part of the accused to make the murder look sudden but natural
and thus are guilty of the aforementioned offences.
57. As mentioned, that there were four persons, two of them were tightly holding Poorva
and other two were trying to outrage her modesty. Even if, Shekhar was holding
Poorva cannot be the ground to save him from the crime that he has committed.
58. It is humbly submitted before this honourable Court that, his plea of merely present at
the crime scene is wrong and denied. The accused was present at the crime scene in
pursuance of a pre-planned act of taking revenge. It is his hatred and animosity due to
which he committed such a heinous offence. It is pertinent to mention again that,
Nitin became so ambitious with the hatred against Umang and Poorva that, he started
discussing the same with their servant.

[5]. WHETHER THE ACT IS IN CONTRAVENTION WITH THE

INTERNATIONAL NORMS
59. The JJ Act, 2015 does not run-in contravention with the international norms in respect
of child which is embraced by most of the member countries of United Nations.

58
Union of India & Ors v. Sunil Kumar Sarkar, (2001) 3 SCC 414.
59
Pandurang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 331.
60
Akanda v. Emperor, AIR 1944 Cal 339.
61
State of M.P v. Desh Raj, (2004) 13 SCC 199.
62
dris Bhai Daud Bhai v. State of Gujarat, 2003 SCC 277.

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60. The 2015 Act establishes a more robust, effective and responsive legislative
framework for children requiring care and protection, as well as children in conflict
with law. Its provisions responded to the perceptions, articulated by a wide cross-
section of society for the need to have an effective and strengthened system of
administration of juvenile justice, care and protection63.
61. The Supreme Court strongly emphasized for a development in the current legislation
of relating to juvenile offender in the case of Gaurav Kumar v. The State of
Haryana64, The court observed that, “The rate of crime and the nature of crime in
which the juvenile is getting involved for which the Union of India and the State
Governments are compelled to file cases before this Court to which the learned
Attorney General does not disagree, have increased. A time has come to think of an
effective law to deal with the situation, we would request the learned Attorney
General to bring it to the notice of the concerned authorities so that the relevant
provisions under the Act can be re-looked, re-scrutinize and re-visited, at least in
respect of offences which are heinous in nature”.
62. The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly
defined and classified offences as petty, serious and heinous, and defined
differentiated processes for each category. Keeping in view the increasing number of
serious offences being committed by persons in the age group of 16-18 years and
recognizing the rights of the victims as being equally important as the rights of
juveniles, special provisions have been made in the new Act to tackle heinous
offences committed by individuals in this age group65.
63. In the case of State of Tamil Nadu Vs. K. Shyam Sunder66, the court emphasized that,
“Merely because the law causes hardships or sometimes results in adverse
consequences, it cannot be held to be ultra vires the Constitution, nor can it be struck
down”.

63
Amendments to the Juvenile Justice (Care and Protection of Children) Bill, Press Information Bureau, 2015.
64
2015 (4) SCALE5 31
65
Press Note of Union Ministry of Women and Child Development, Press Information Bureau, 2014.
66
(2011) 8 SCC 737.

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[5.1] THE ACT IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES

IN RESPECT OF JUVENILES
64. The Republic of India is a signatory to various conventions and rules 67 which protect
the rights of Children. The United Nations Convention on Rights of Child (hereinafter
as UNCRC) was ratified by the Republic of India in 1992 and the 2000 Act was
consequently brought in to adhere to the standards set by the Convention.
Specifically, it is pointed out that the practice of statutory exclusion which ensures
that perpetrators of certain grave offences are prosecuted as adults; ‘judicial waiver’,
granting discretion to special juvenile courts to waive jurisdiction and transfer the
juvenile’s case to an ordinary court of law and also the policy of concurrent
jurisdiction of both the ordinary and juvenile courts giving discretion to the prosecutor
to initiate proceedings in the more suitable court are followed in foreign
jurisdictions68.
65. The Act. Of 2015 maintains this aim and seeks to improve implementation and
procedural delays experienced by the 2000 Act. The UNCRC states that signatory
countries should treat every child under the age of 18 years in the same manner and
not try them as adults. However, many other countries who have also ratified the
Convention try juveniles as adults, in case of certain crimes. These countries include
the UK, France, Germany, etc. The United States is not a signatory to the UNCRC
and also treats juveniles as adults in case of certain crimes. The provisions of various
countries cannot be overlooked while dealing with such a sensitive issue. In United
Kingdom, “Extended” custodial sentences are given to young persons if their crime is
so serious that no other alternative is suitable, or if the young person is a habitual
offender, or if the Judge thinks the person is a risk to public safety.
66. In United States of America, the majority age is 18 years, but persons older than 14
years may be tried as adults if they commit serious crimes (rape, robbery, murder
etc.). The state of New York pegs the age of juvenility at 16 years, and permits the
prosecution of persons aged between 13-16 years as adults in case of serious crimes.
In Nepal, the minimum age of criminal responsibility is 10 years. A child is a person

67
UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules),
UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines),
UN Rules for the Protection of Juvenile Deprived of their Liberty (Havana Conventions), &
Guidelines for the Action on Children in Criminal Juvenile System (Vienna Guidelines).
68
Ibid at 66.

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 MEMORIAL ON BEHALF OF RESPONDENTS

below 16 years. A person between 16-18 years is charged and tried as adults under the
judicial system of Nepal.
67. Also, Countries like U.K. Canada and USA have departed from the obligations under
the UN Convention. The countries who are a signatory to the convention have certain
international commitments. However, by only becoming a mere signatory to the
convention does not make any country legally bound to follow the provisions of the
convention. It is only when then country has ratified such provisions, it becomes
legally bound to abide by them.
68. It is submitted before this Hon’ble Court that the power to make any law for the
whole or any part of the country to give effect to any International Treaty, Agreement,
Convention or decision lies with the Parliament69. It is further submitted that treaty
entered in to by India cannot become law of the land and it cannot be implemented
unless parliament passes a law as required under Article 253 70. The effect of Art 253
is that if a treaty, agreement or convention with a foreign state deals with a subject
within the competence of state legislature, the parliament alone has notwithstanding
Article 246(3) the power to make laws to implement the treaty, agreement or
convention or any decision made at any international conference, association or other
body.
69. Lastly, it is submitted that the combined reading of Articles 51(c), 73, 253 read with
entries 10 to 21 of Seventh Schedule and 372 and judicial interpretation reveal that,
unless and until Parliament enacts a law implementing international treaty, such treaty
provisions cannot be enforced per se in India. Further if such treaty provisions are
consistent with Indian law or there is void in the domestic legal system then they can
be read into, to do justice, and if there is conflict between the two then domestic laws
prevail over international law71.
70. The counsel most humbly submits that the present case is an exceptional case which
warrants the awarding maximum penalty under the law to the accused 72. The crime
committed by the petitioners is not only shocking but it has also jeopardized the
society. The awarding of lesser sentence only on the ground of the petitioner being a
juvenile at the time of occurrence cannot be considered as a mitigating circumstance
in view of our findings that the murders committed by him were most cruel, heinous

69
Article 253, Constitution of India, 1950.
70
State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1644, ¶ 4.
71
People‟s Union for Civil Liberties v. Union of India, AIR 1997 SC 568.
72
Gurdev Singh v. State of Punjab, (2003) 7 SCC 258.

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and dastardly73. Further a person can’t be escaped from conviction even after
committing a crime on the ground that he was not present despite being the
involvement of common intention in furtherance of committing murder and shared
animosity for Umang and Poorva. Therefore, we have no doubt that the present case is
the rarest of rare case requiring the maximum penalty imposable under law."

PRAYER

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

1. Dismiss this Special Leave Petition.

2. To Declare, conviction of Abhishek & Nitin is not contrary to the process of law and must
not be set aside.

3. Hold that the Juvenility should depend upon the nature of the offence committed and not
on the age.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Respondent as in duty bound, shall humbly pray.

73
Moti Lal v. State of M.P, (2004) 2 SCC 469

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