CODE: 1710

ARMY INSTITUTE OF LAW CLASS MOOT – I

BEFORE THE HON’BLE SUPREME COURT OF INDIA

INHERENT AND PLENARY JURISDICTION

REVIEW PETITION (CRM.) NO. ___ OF 2019

IN

APPEAL (CRM.) NO. _________ OF 2019

Under Article 137, Constitution of India readwith Order XLVII Supreme Court Rules, 2013

IN THE MATTER OF:

Network Against Gender Bias……………………………………… Intervenor/ Review Petitioner
v.
Amrit Singh…………………………………………………………………………….Respondent

AND

IN THE MATTER OF:

Network Against Gender Bias Intervenor/ Review Petitioner
v.
State of Punjab……………………………………………………………………….… Respondent

For Offences charged under § 300, 302, 375, 376, 376A, 376AB of the Indian Penal Code,
1860

UPON SUBMISSION TO THE HON’BLE SUPREME COURT JUDGE(S)

Memorandum on behalf of the Respondent

 Table of Contents

TABLE OF CONTENTS

Table of Contents ...................................................................................................................... I

List of Abbreviations ............................................................................................................... II

Index of Authorities .................................................................................................................. IV

Table of Cases ............................................................................................................... IV

Books ........................................................................................................................... V

Lexicons ....................................................................................................................... VI

Websites ....................................................................................................................... VI

Statutes ......................................................................................................................... VI

Statement of Jurisdiction ........................................................................................................VII

Statement of Facts ................................................................................................................. VIII

Issues Raised ............................................................................................................................ IX

Summary of Arguments ............................................................................................................ X

Arguments Advanced ........................................................................................................... 1-12

1. WHETHER THE REVIEW PETITION IS MAINTAINABLE?

1.1 LIMITED SCOPE AND AMBIT OF ORDER XLVII OF SUPREME COURT RULES, 2013 …………… 1

2. WHETHER THE ACTS OF THE ACCUSED WERE INTENTIONAL AND PREMEDITATED OR

IMPULSIVE AND RESULT OF MOMENTARY LAPSE ……………………………………………………... 4
2.1 NO CONCLUSIVE EVIDENCE TO PROVE PREMEDITATION AND PLANNING..................................... 4

3. WHETHER THE PRESENT CASE PASSES THE CRIMINALITY TEST AND DOCTRINE OF “RAREST
OF RARE”? ………………………………………………………………………………………………………… 8

3.1 DOCTRINE OF RAREST OF RARE ................................................................................................................ 8

Prayer ....................................................................................................................................... XI

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List of Abbreviations

LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Co. Company

Cr. L.J Criminal Law Journal

CRM Criminal

CrPC Code of Criminal Procedure

Del. Delhi

Govt. Government

H.C High Court

Hon’ble Honorable

i.e. That is

IPC Indian Penal Code

L.R Law Review

Ltd. Limited

M.P Madhya Pradesh

NCT National Capital Territory

No. Number

Ors. Others

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List of Abbreviations

P&H Punjab and Haryana

Pg. Page

r/w Read With

Rep. Reporter

S. Section

§ Sections

S.C Supreme Court

S/d Signed

SCC Supreme Court Cases

Sh. Shri

Smt. Srimati

U.P Uttar Pradesh

U.T Union Territory

u/s Under Section

v. Versus

III

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Index of Authorities

INDEX OF AUTHORITIES

TABLE OF CASES:

1. Akshay Kumar Singh v. State of NCT of Delhi, Review Petition (Crl.) D44603 of 2019

2. Amrit Singh v. State of Punjab, Appeal (Crl) 1327 of 2005

3. Akhtar v. State of U.P., (1999) 6 SCC 60

4. Allauddin Mian v. State of Bihar, 4 (1989) 3 SCC 5

5. Ajitsingh Harnam Singh v. State of Maharashtra, (2012) 4 SCC 327

6. Amit v. State of Maharashtra, (2008) 3 SCC 93

7. Bachan Singh v. State of Punjab, (1980) 2 SCC 684

8. Bantu v. State of Madhya Pradesh., (2001) 9 SCC 615

9. C. Munniappan v. State of Tamil Nadu, (2010) 9 SCC 567

10. Devendra Pal Singh v. State, (2002) 5 SCC 234

11. Gurdeep v. State, 1986 Cr. LJ 896

12. Gudda v. State of Madhya Pradesh, (2013) 16 SCC 596

13. Harnam Singh v. State of Uttar Pradesh, (1976) 1 SCC 163

14. Kisan Rao Khade v. State of Maharashtra, (2003) 5 SCC 546

15. Lily Thomas & Ors. v. UOI, (2006) 6 SCC 224

16. Lehna v. State of Haryana, (2002) 3 SCC 76

17. M/S Jain Studio Ltd. v. Shin Sattellite Public Co. Ltd., Review Petition (Civil) D5970 of
2006

18. Machhi Singh v. State of Punjab, (1983) 3 SCC 470

19. Mahesh Dhanji v. State of Maharashtra, (2019) 4 SCC 292

20. Northern India Caterers v. Lt. Governor of Delhi, (1980) 2 SCC 167

21. Nirmal Singh v. State of Haryana, (1999) 3 SCC 670

22. Parisen Devi v. Sumitri Devi, (1997) 8 SCC 715

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Index of Authorities

23. Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434

24. Raju v. State of Haryana, (2001) 9 SCC 50

25. Rameshwari Rathod v. State of Gujarat, (2009) 5 SCC 740

26. Raju Jagdish Paswan v. State of Maharashtra, (2019) AIR (SC) 897

27. Ram Singh v. Sonica, 2007 (3) SCC 1

28. Raghubir Singh v. State of Harayana, (1973) 3 SCC 1037

29. Rahul v. State of Haryana, (2001) 9 SCC 50

30. Sow Chandra Kante & Anr. v. Sheikh Habib, 1975 1 SCC 675

31. Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498

32. Shatrughna Baban Meshram vs State of Maharashtra, Criminal Appeal Nos. 763-764 of
2016

33. Sushil Sharma v. State (NCT of Delhi), (2014) 4 SCC 317

34. Sunder v. State, (2013) 3 SCC 215

35. State of Bihar v. Hari Krishan Sada, (2018) SCC Online Pat 1988

36. Sunil Adiwasi v. State of M.P., 2013 SCC Online MP 5598

37. Surendra Pal v. State of Gujarat, (2005) 3 SCC 127

38. Tungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372

39. Triveniben v. state of Gujarat, (1989) 1 SCC 678

40. UOI v. Sandur Manganese & iron Ore Ltd. & Ors, (2013) 8 SCC 337

41. Vicky Walia & Anr. v. State of Punjab, (2017) 8 SCC 518

42. Vinay Sharma v. State of NCT of Delhi, Review Petition (Crl) Nos 671-673 of 2017

BOOKS:

1. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

2. Gaur, KD, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd., 2016)

3. Ratanlal and Dhirajlal, The Indian Penal Code, (32nd Ed., Lexis Nexis Butterworths,
2011)
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Index of Authorities

LEXICONS

1. Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

2. Garner, Black’s Law Dictionary, (9th Ed. Thomas & West, U.S.A 1990)

WEBSITES

1. https://main.sci.gov.in

2. http://www.scconline.com

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

4. http://www.indiankanoon.org

5. https://www.google.com

STATUTES

1. The Code of Criminal Procedure, 1973 (Act II of 1973)

2. The Indian Penal Code, 1860 (Act XLV of 1860)
3. The Constitution of India, 1950

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 Statement of Jurisdiction

STATEMENT OF JURISDICTION

The counsel on behalf of the Appellant in the Criminal Appeal before the Hon’ble Supreme
Court of India submits to the Inherent and Plenary Jurisdiction of the Hon’ble Supreme Court
of India under Art. 137 of the Constitution of India read with Order 40 Rule 1 of the Supreme
Court Rules, 2013 which reads as hereunder:

Art. 137:

‘137. Review of judgments or orders by the Supreme Court-

Subject to the provisions of any law made by Parliament or any rules made under Article 145, the
Supreme Court shall have power to review any judgment pronounced or order made by it.’ 1

Order XLVII:

‘Review-

(1) The Court may review its judgment or order, but no application for review will be
entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of
the Code, and in a criminal proceeding except on the ground of an error apparent on the
face of the record
The application for review shall be accompanied by a certificate of the Advocate on
Record certifying that it is the first application for review and is based on the grounds
admissible under the Rules.….’2

1
Constitution of India
2
Supreme Court Rules, 2013
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Statement of Facts

STATEMENT OF FACTS

It is most respectfully submitted:

1. That at around 5:00 pm on 03-11-2012, Raj Preet Kaur alias Guddi, an eight-year old
student of IInd Standard left the house of her cousin and classmate Amarpreet Kaur. She
was accompanied by Amarpreet for some distance.
2. That soon thereafter she seen walking with her 30-year old neighbour, Amrit Singh and
holding his finger, which was the last time she was seen alive.
3. That when she didn’t reach her house, a search was conducted and her dead body was
discovered in the agricultural fields belonging to Amrit Singh that were situated in front
of his house. The body was discovered in the state of rigor mortis.
4. That the ante mortem injuries indicated that sexual assault had been committed on her and
the medical examiner concluded that the death was a result of the loss of blood and not
from any other factor.
5. That Amrit Singh was prosecuted for rape and murder of Guddi. The lower court
convicted him on both accounts & sentenced him to death, which was confirmed by High
Court of Punjab & Haryana.
6. That thereafter, an appeal was preferred in the Hon’ble Supreme Court, which was
pleased to uphold his conviction but, commuted his sentence to life imprisonment vide its
judgement delivered on 10-11-2019. The Hon’ble Court noted that the nature and cause
of death indicate that the element of intention to cause death was missing.
7. That 14 national level women organizations jointly filed the present review petition
before this Court under the banner “Network Against Gender Bias” (NAGB), seeking
review of the judgment.
8. That the NAGB have sought the relief of restoration of death penalty to the Accused and
the omission of the Obiter Dictum of the Hon’ble Court when it was noted that “The
manner in which the deceased was raped may be brutal but it could have been a
momentary lapse on the part of the Appellant, seeking a lonely girl at a secluded place”.

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Issues Raised

ISSUES RAISED

ISSUE 1

Whether the Review Petition is maintainable?

ISSUE 2

Whether the acts of the Accused were intentional and premeditated or impulsive and result of
momentary lapse?

ISSUE 3

Whether the present case passes the Criminality Test and Doctrine of “Rarest of Rare”?

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Summary of Arguments

SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE REVIEW PETITION IS MAINTAINABLE ?

It is humbly submitted that the provisions conferring the power of review to the Hon’ble
Supreme Court of India are exclusive and limited. Under Order XLVII, Rule 1 of the Supreme
Court Rules, 2013, the review of criminal proceedings can only be sought on the limited ground
of error apparent on the face of record. It is trite law that the power of review cannot be used to
disguise an appeal. It is also pertinent to note that it is a settled principle of law that third party
does not have locus standi to challenge

ISSUE 2
WHETHER THE ACTS OF THE ACCUSED WERE INTENTIONAL AND PREMEDITATED OR IMPULSIVE AND

RESULT OF MOMENTARY LAPSE?

It is humbly submitted that the Hon’ble Supreme Court rightly held in the Appeal filed by the
Accused that the acts could have been a result of a momentary lapse. The key ingredient for
commission of culpable homicide amounting to murder under Section 300 is the intention of
causing death or bodily injury likely to cause death or bodily injury likely to cause death in
ordinary course of nature or the knowledge of the nature of the act being imminently
dangerous as to cause death. In the lack of all of the above ingredients, a crime, however
heinous would amount to culpable homicide not amounting to murder.

ISSUE 3

WHETHER THE PRESENT CASE PASSES THE CRIMINALITY TEST AND DOCTRINE OF “RAREST OF RARE” ?

It is humbly submitted before the Hon’ble Supreme Court that the present case doesn’t fall
within the ambit of rarest of rare case. A case falls within this category when the murder is
committed in an extremely grotesque, manner; when the murder is committed for a motive
which evinces meanness; when murder of a member of a Scheduled Caste or minority
community, etc. is committed in circumstances which arouse social wrath; when the victim of
murder is an innocent, helpless person vis-a-vis whom the murderer has an advantage, etc.
Since the present case does not satisfy these prerequisites, it does not fall within the scope of
rarest of rare doctrine.

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Arguments Advanced

ARGUMENTS ADVANCED

1. WHETHER THE REVIEW PETITION IS MAINTAINABLE?

It is humbly submitted before the Hon’ble Supreme Court of India that the petition filed by the
Intervenor/ Review Petitioner is not maintainable in accordance with Order XLVII, Rule 1 of
the Supreme Court Rules, 2013:
(1) The Court may review its judgment or order, but no application for review will be
entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of
the Code, and in a criminal proceeding except on the ground of an error apparent on the
face of the record
The application for review shall be accompanied by a certificate of the Advocate on
Record certifying that it is the first application for review and is based on the grounds
admissible under the Rules.….’

The power of judicial review in criminal proceedings has not been conferred to the Hon’ble
Court with the view of undermining the principles of res judicata, but, with the view of
preventing a gross miscarriage of justice which may be attributed to human error on part of
the learned judges that would be apparent without extensive study of the judgement.

It is trite law that review cannot be treated as an appeal in disguise. The Hon’ble Supreme
Court has upheld this principle in various judgments and insisted that the power of review
cannot be misused in cases where the Courts have taken a view that differs from the
perspective of the parties, insofar as the ratio decidendi is consistent with the provisions of
law.

1.1 LIMITED SCOPE AND AMBIT OF ORDER XLVII OF SUPREME COURT

RULES, 2013

It is submitted that in accordance with Order XLVII of the Supreme Court Rules, 2013, a
review in criminal proceedings can be sought on the limited ground of error apparent on the
face of record. However, no such error has been emphasized or agitated by the Petitioner in
the present case. The Hon’ble Supreme Court of India, in a plethora of judgements has
reiterated the underlying principle that review of civil proceedings is not an appeal in disguise
and the submissions have to be strictly confined to the scope and ambit of Order 47 Rule 1
CPC. A similar view has been taken by the Hon’ble Court in respect of criminal proceedings
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Arguments Advanced

while further limiting review to cases where there is an error apparent on the face of record.
As held by the Hon’ble Apex Court in Vicky Walia and Anr. vs State of Punjab3,
“It is clear that scope, ambit and parameters of review jurisdiction are well defined. Normally
in a criminal proceeding, review applications cannot be entertained except on the ground of
error apparent on the face of the record…
… This Court shall exercise its jurisdiction to review only when a glaring omission or patent
mistake has crept in the earlier decision due to judicial fallibility. There has to be an
error apparent on the face of the record leading to miscarriage of justice to exercise
the review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be
a material error manifest on the face of the record with results in the miscarriage
of justice.”
The same had view had been taken by the Hon’ble Court in Sow Chandra Kante & Anr. v.
Sheikh Habib4, where J. VR Krishna Iyer eloquently stated:
“A review of a judgment is a serious step and reluctant resort to it is proper only where a
glaring omission or patent mistake or like grave error has crept in earlier by judicial
fallibility. A mere repetition, through different counsel, of old and overruled arguments, a
second trip over ineffectually covered ground or minor mistakes of inconsequential import are
obviously insufficient.”
The view taken by the Hon’ble Supreme Court in M/s Jain Studios Ltd. vs Shin Satellite Public
Co. Ltd.5 is especially relevant with regards to the present matter. It was held that:
“So far as the grievance of the applicant on merits is concerned, the learned counsel for the
opponent is right in submitting that virtually the applicant seeks the same relief which had
been sought at the time of arguing the main matter and had been negatived. Once such a
prayer had been refused, no review petition would lie which would convert rehearing of the
original matter. It is settled law that the power of review cannot be confused with appellate
power which enables a superior court to correct all errors committed by a subordinate court.
It is not rehearing of an original matter.”
At this juncture, it is imperative to supply emphasis to the judgement of this Hon’ble Court in
Union of India vs. Sandur Manganese & Iron Ores Ltd. and Ors. 6where the Hon’ble Supreme
Court held:
“When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen
concluded adjudications.

3
(2017) 8 SCC 518
4
(1975) 1 SCC 674
5
Review Petition (civil) D5970 of 2006
6
(2013) 8 SCC 337
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Arguments Advanced

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the
order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous
decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be
fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court,
it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main
matter had been negatived.”
There is a plethora of judgements where the same or similar view has been taken by the
Hon’ble Supreme Court of India from time to time. Some of these other judgements include
Lily Thomas and Ors vs Union of India7, Northern India Caterers (India) vs Lt. Governor of
Delhi8, Vinay Sharma vs The State of NCT of Delhi9, Akshay Kumar Singh vs The State of NCT
of Delhi10, Thungabhadra Industries Ltd. v. Govt. of A.P.11, In Parsion Devi v. Sumitri Devi12.
It is humbly submitted that in the present case, the Intervenor/ Review Petitioner has failed to
bring forth any such grave and material error manifest on the face of record as to warrant
consideration of this Hon’ble Court.
Based on the above noted precedents and the facts and circumstances of the present case, the
following arguments merit kind consideration of this Hon’ble Court for fair adjudication of the
matter in the interest of justice:
 Error Apparent on the face of record: It is submitted that the Intervenor/ Review
Petitioner has failed to agitate and bring to the attention of the Hon’ble Court, any
such grave and manifest error that is apparent from a bare reading of the order without
detailed analysis.
 Review is not maintainable if relief sought has already been negated by the
Hon’ble Court: It is further submitted that, as held in Sandur Manganese and Iron
Ore Ltd. and M/s Jain Studios Ltd. judgements, the present review petition is not
maintainable since the relief sought is the award of death penalty, has been negatived

7
(2000) 6 SCC 224
8
(1980) 2 SCC 167
9
REVIEW PETITION (CRL.) NOS.671-673 OF 2017
10
REVIEW PETITION (CRIMINAL) D NO.44603 OF 2019
11
AIR 1964 SC 1372
12
(1997) 8 SCC 715
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Arguments Advanced

by this Hon’ble Court in the Criminal Appeal wherein the Hon’ble Supreme Court
was pleased to commute the sentence to imprisonment for life.
In light of the above submissions and authorities, it is humbly submitted that the present
petition fails to satisfy the prerequisites and ground for filing such petition and is therefore,
liable for dismissal. Accordingly, it may please the Court to dismiss the petition.

2. WHETHER THE ACTS OF THE ACCUSED WERE INTENTIONAL AND

PREMEDITATED OR IMPULSIVE AND RESULT OF MOMENTARY LAPSE?

It is submitted that the Hon’ble Supreme Court of India was correct in commuting the sentence
awarded to the Accused in the Criminal Appeal. It is pertinent to note that the element of intention
and premeditation is an important and underlying factor that need to be considered by the Hon’ble
Courts while deciding the sentence to be awarded to the accused.
In the present case, it is pertinent to consider the factual matrix and the factors that lead to the
death of the prosecutrix bear heavily in deciding the quantum of punishment. It is humbly
submitted that the entire case of the Prosecutrix herein is based on circumstantial evidence that
prove a chain of events by which an inference that the crimes were committed by someone other
than the Accused improbable. However, it is pertinent to note that there is a lack of substantial
and conclusive evidence to prove the culpability of the Accused.
It is further submitted that attention must be drawn to Section 300, IPC which defines murder. The
key factor in determining if an offence is murder is the presence of “intention to cause death” or
“knowledge of the imminent danger of death”.
It is humbly submitted that in a plethora of judgments over time, the Hon’ble Court has reiterated
and laid emphasis on intention to cause death in cases with similar facts to the present matter.
While relying on the “criminal test” devised by the Hon’ble Court through its pronouncements,
the Court has concluded that intention and premeditation are relevant factors which would weigh
heavily in devising the quantum of punishment.
2.1 LACK OF INTENTION AND PREMEDITATION
It is reiterated that intention and premeditation bear heavily while deciding the quantum of
punishment, and especially so in cases where there is a possibility of death penalty. It is pertinent
to note the observations and precedents set by this Hon’ble Court in cases with similar facts, and
even cases where graver and more deplorable acts had been committed. The various judgements
from different periods since Independence enunciate the underlying principle that in cases where
there is a lack of intention and lack of premeditation, death penalty must be avoided.
It is submitted that special emphasis must be drawn on the judgement of the Hon’ble Supreme

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Arguments Advanced

Court in the case of Amrit Singh vs State of Punjab13, which has exceedingly similar facts to the
present case. In both cases, the rape was committed on a girl in Class 2, by her neighbour in his
cotton fields and the girl died of blood loss and not strangulation. It was held that:
“Offence of rape took place on an agricultural field. She might have suffered a lot of pain. She
might have resisted also. She might have been gagged. Possibilities of some assault on her person
cannot be ruled out. It would, however, be improper to hold that he killed her intentionally.
The death occurred not as a result of strangulation but because of excessive bleeding. Deceased
had bled half a litre of blood. Dr. Reshamchand Singh, PW-1 did not state that injury on the neck
could have contributed to her death. The death occurred, therefore, as a consequence of and not
because of any specific overt act on the part of Appellant.
Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even
otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was
raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a
lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The
offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare
cases.”
Further, attention is drawn to the decision of this Hon’ble Court in Akhtar vs State of UP14where it
was held that:
“But in the case in hand on examining the evidence of the three witnesses it appears to us that the
accused/appellant has committed murder of the deceased-girl not intentionally and with any
premeditation. On the other hand the accused/appellant found a young girl alone in a lonely
place, picked her up for committing rape; while committing rape and in the process by way of
gagging the girl has died. The medical evidence also indicates that the death is on account of
asphyxia. In the circumstances we are of the considered opinion that the case in hand cannot be
held to be one of the rarest of rare cases justifying the punishment of death. We, therefore, uphold
the conviction of the appellant under Section 302, IPC, but looking to other mitigating
circumstances, we commute the sentence of death to imprisonment of life. Subject to the aforesaid
modification of sentence, this appeal is dismissed.”
In Raju v. State of Haryana15, this Court took into account three factors for converting the death
sentence of the accused to imprisonment for life for the rape and murder of an eleven year old
child. Firstly, absence of premeditation to commit murder; secondly, the absence of any criminal
record of the accused; and thirdly, there being nothing to show that the accused could be a grave
danger to society. It was held that:

13
Appeal (crl.) 1327 of 2005
14
(1999) 6 SCC 60
15
(2001) 9 SCC 50
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Arguments Advanced

“The evidence on record discloses that the accused was not having an intention to commit the
murder of the girl who accompanied him. On the spur of the moment without there being any
premeditation, he gave two brick-blows which caused her death. There is nothing on record to
indicate that the appellant was having any criminal record nor can he be said to be a grave
danger to the society at large. In these circumstances, it would be difficult to hold that the case of
the appellant would be rarest of rare case justifying imposition of death penalty.”
The Hon’ble Supreme Court in its recent judgement dated 02nd November 2020 in Shatrughna
Baban Meshram vs State of Maharashtra16, examined the importance of intention to cause death
and held:
“53. However, if the case is considered against the second head, we do not find that the option of
a sentence lesser than death penalty is completely foreclosed. It is true that the sexual assault was
very severe and the conduct of the Appellant could be termed as perverse and barbaric. However,
a definite pointer in favour of the Appellant is the fact that he did not consciously cause any injury
with the intent to extinguish the life of the victim. Though all the injuries are attributable to him
and it was injury No.17 which was the cause of death, his conviction under Section 302 IPC is not
under any of the first three clauses of Section 300 IPC. In matters where the conviction is
recorded with the aid of clause fourthly under Section 300 of IPC, it is very rare that the death
sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the Chart tabulated
in paragraph 30 hereinabove, where the victims were below 16 years of age and had died during
the course of sexual assault on them, the maximum sentence awarded was life sentence. This
aspect is of crucial importance while considering whether the option of a sentence lesser than
death penalty is foreclosed or not.
54. We therefore, find that though the Appellant is guilty of the offence punishable under Section
302 IPC, since there was no requisite intent as would bring the case under any of the first three
clauses of Section 300 IPC, the offence in the present case does not deserve death penalty.”
It is submitted that in light of the precedents of this Hon’ble Court, it can be inferred that intention
and premeditation must be considered in deciding the quantum of punishment. These precedents
further show the view taken by this Hon’ble Court over the course of the past 21 years while
keeping in view, the social implications of commuting the death sentence of convicts in cases with
similar facts to the present case. In this regard, it is imperative to refer to the medical examination
wherein it was concluded that the death was caused due to bleeding and not from strangulation or
force. The Accused, who in the heat of the moment and momentary lapse committed rape, had an
impulsive and carnal urge for sexual gratification. It is further submitted that the circumstances
whereby the chain of events has been formed must be examined. The Accused was the last person
seen with the prosecutrix and later the lifeless, injured body of the prosecutrix was found in the
16
Criminal Appeal Nos. 763-764 of 2016
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Arguments Advanced

fields of the Accused with dried blood from the vulva and on her legs. It must also be observed
that the Accused did not attempt to remove any evidence, hide, or discard the body or take any
other such step as would have prevented culpability.
In view of the above submissions, the Accused prays leave of the Hon’ble Court to consider the
following factors in deciding the present matter:
 No evidence of premeditation or intention- The Accused has been convicted solely on
circumstantial evidence. In the absence of any conclusive evidence, facts, and in view of
the findings of the medical examiner, it can be concluded that there was no element of
premeditation or intention to cause death.
 Clear indication of momentary lapse- The Accused found himself alone with a young
girl and in his carnal lust and urges, proceeded to take her to the nearest secluded place,
his fields. Since the body was found in the state of rigor mortis, it can be inferred that no
attempt was made to move the body and the medical examination would have confirmed
livor mortis. The state of rigor mortis further indicates that the body was found within a
few hours from the time of death.
 Death due to bleeding and not strangulation- As per the medical reports, it is
sufficiently clear that the death was not caused due to the actions of the Accused and
merely as a consequence thereof.
In view of the above averments, it is humbly submitted that the Hon’ble Supreme Court was
correct in its conclusions and the present review petition does not merit consideration of this
Hon’ble Court.

3. WHETHER THE PRESENT CASE PASSES THE CRIMINALITY TEST AND DOCTRINE
OF “RAREST OF RARE”?

It is humbly submitted that in Criminal Jurisprudence, the principle of “innocent until proven
guilty” bears heavily in deciding the culpability of an accused person. Accordingly, burden of
proof lies on the prosecution and a very high standard of proof is required on the part of
prosecution in order to prove beyond reasonable doubt that the alleged offences have been
committed in the manner alleged to have been committed and with the alleged intention to
commit. It is a principle of Criminal law that conviction for serious crime should depend upon
proof that ‘Actus Reus’ was accompanied by ‘Mens Rea’.
It is further submitted that the Hon’ble Supreme Court has continuously emphasised that in
delivering true justice, the Right to Life of the Victim as well as the Culprit have to be kept in
view. It is pertinent to note that this view of greatly expanded through the pronouncements of this

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Hon’ble Court in Bacchan Singh v. State of Punjab17 and further in Machhi Singh v. State of
Punjab18 whereby the Hon’ble Court has laid down and expanded the Doctrine of “Rarest of
Rare” in order to reduce the number of death sentences and ensure that death sentences are only
awarded in cases where any other punishment would be wholly inadequate and unjust.
3.1 DOCTRINE OF RAREST OF RARE
It is humbly submitted before this Hon’ble Court that the doctrine of “rarest of rare” was
developed by this Hon’ble Court in respect to the award of death penalty under § 302 and 376 IPC
vide its judgment in Bacchan Singh v. State of Punjab The Hon’ble Supreme Court tried to
remove a precept especially for offences at fault with death to diminish the uncertainty for courts
in regards to when to go for the most elevated discipline of the land. By majority of 4:1, the
defendability of capital punishment was maintained by the Supreme Court and a rule was set out
that capital punishment must be encircled distinctly in the rarest of rare cases. The Ratio
Decidendi of Bacchan Singh’s case is that capital punishment is sacred, and in the event that it is
endorsed as an option for the offence of homicide and if the ordinary sentence recommended by
law for homicide is detainment forever. This implies capital punishment must be forced on rarest
of rare cases where an elective choice is avoided.

Afterward, on account of Machhi Singh v. State of Punjab the court set down rules for surveying
whether wrongdoing fell into the class of rarest of rare and specific standards for surveying when
a case could fall under the ambit of rarest of rare.
The models are investigated as stated:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical,

revolting, or dastardly manner so as to arouse intense and extreme indignation of the
community.
(2) When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder
for gains of a person vis-a vis whom the murderer is in a dominating position or in a
position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc. is
committed not for personal reasons but in circumstances which arouse social wrath; or
in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to
remarry for the sake of extracting dowry once again or to marry another woman on
account of infatuation.

17
(1980) 2 SCC 684
18
(1983) 3 SCC 470
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(4) When the crime is enormous in proportion. For instance when multiple murders,
say of all or almost all the members of a family or a large number of persons of a
particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or
infirm person or a person vis-a-vis whom the murderer is in a dominating position, or
a public figure generally loved and respected by the community .

In Machhi Singh19, the three-judge Bench of this Court relied on the guidelines laid down and
proceeded to frame a test to determine the applicability of the ‘rarest of rare’ doctrine. The
Hon’ble Court laid down that the following two questions might be asked and answered as a test
to determine the rarest of rare case in which dead sentence could be inflicted:

“(a) is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?

(b) are the circumstances of the crime such that there is no alternative but to impose
death sentence even after according maximum weightage to mitigating circumstances
which speak in favour of the offender?”

The second phrase of Machhi Singh [para 32] - the crime being “a shock to the collective
conscience of the community” as a touchstone for deciding the rarest of rare cases, not only
altered the balance in favour of the crime, but resulted in an nebulous notion of societal
conscience that justified the imposition of death penalty. This court has sufficiently articulated the
perils of this “collective conscience” doctrine in Santosh Kumar Bariyar v. State of Maharashtra
20
[paras 81-89]. The court in that case opined that courts are governed by constitutional
safeguards and not by majoritarian diktat. Drawing parallels with the role of courts in protecting
individual rights in judicial review proceedings, the court emphasised the need for a principle
based approach, in sentencing proceedings too.

A similar view was taken by this Hon’ble Court in Rameshbhai Rathod v. State of Gujarat21 [para
108], where one of the judges stated that the courts cannot afford to prioritize sentiments of
outrage about the nature of the crimes committed over the requirement to carefully consider
whether the person committing the crime is threat to the society.

19
Id.
20
(2009) 6 SCC 498; Prajeet Kumar Singh v. State of Bihar (2008) 4 SCC 434
21
(2009) 5 SCC 740
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Further, in Allauddin Mian v. State of Bihar22 it was laid down that unless the nature of the crime
and the circumstances of the offender reveal that the criminal was a menace to the society and the
sentence of life imprisonment would be altogether inadequate, the court should ordinarily impose
a lesser punishment and not the extreme punishment of death which should be reserved for
exceptional cases only.

It is pertinent to mention an excerpt from the judgment of Raju Jagdish Paswan v. State of
Maharashtra23:
“The Appellant dragged a girl of nine years into a sugarcane field, raped her and
dumped her in a well. The cause of death according to the medical evidence was
signs of recent sexual intercourse with death due to drowning. There is no doubt that
the murder involves exceptional depravity which is one of the aggravating
circumstances. The manner of commission of the crime is extremely brutal.
However, we are of the considered opinion that the Appellant does not deserve the
sentence of death in view of the following mitigating circumstances:
a) On a thorough examination of the offence, we are unable to accept the
prosecution version that the murder was committed in a pre-planned manner.
b) The Appellant was a young man aged 22 years at the time of commission of the
offence.
c) There is no evidence produced by the prosecution that the Appellant has the
propensity of committing further crimes, causing a continuing threat to the society.
d) The State did not bring on record any evidence to show that the Appellant cannot
be reformed and rehabilitated.”
Further in the case of Bantu v. State of M.P.24, it has been held by the Hon'ble Supreme Court as
under:-
“...In the present case, there is nothing on record to indicate that the appellant
was having any criminal record nor can it be said that he will be a grave danger
to the society at large. It is true that his act is heinous and requires to be
condemned but at the same time it cannot be said that it is the rarest of the rare
case where the accused requires to be eliminated from the society. Hence, there is
no justifiable reason to impose the death sentence."

As held in Gurdeep v. State25, having regard to the age of the accused, his good background, as

22
4 (1989) 3 SCC 5
23
2019 AIR (SC) 897, Mahesh Dhanaji v. State of Maharashtra (2014) 4 SCC 292
24
(2001) 9 SCC 615
25
1986 Cr LJ 896
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well as the fact that he had no criminal history and the offences were committed in circumstances
out of utter desperation while of self-control, the High Court was competent to recommend to the
government to exercise its power of retrieve for remission of the sentence of imprisonment for life.
In Shankar Kisanrao Khade vs State of Maharashtra26, the Hon’ble Supreme Court analysed
various precedents wherein the Court was pleased to commute or uphold the award of death
sentence and concluded that the various decisions taken into consideration clearly suggest that this
Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence
as an alternative to death penalty by applying the “unquestionably foreclosed” formula laid down
in Bacchan Singh vs State of Punjab.
In Rameshbhai Rathod v. State of Gujarat27 where it was stated that the courts cannot afford to
prioritize sentiments of outrage about the nature of the crimes committed over the requirement to
carefully consider whether the person committing the crime is a threat to the society.
It is humbly submitted that in the present case, the grave errors committed by the Trial Court and
the High Court are the complete disregard of the Bachan Singh test, the lack of adequate emphasis
of the circumstances of the criminal and disproportionate emphasis on the nature of the crime. It is
apparent that the Trial Court while discussing the Bachan Singh, Macchi Singh, Devendar Pal
Singh v. State28, Ram Singh v. Sonia29, C Muniappan v. State of Tamil Nadu30, Ajitsingh
Harnamsingh v. State of Maharashtra31 and Sunder v. State32 only placed emphasis on the brutal
and heinous nature of the crime. Even, the mitigating factors, including the possibility of reform
and rehabilitation, were ruled out on the basis of the nature of crime and not on its own merits.
In order to establish that the present case does not attract the rarest of rare doctrine, the following
points are humbly submitted before this Hon’ble court for its kind consideration:
i. Cumulative consideration of mitigating circumstance: The Trial Court and the High
Court failed to pay due regard to the mitigating factors argued in favour of the accused
by merely reflecting those on the mirror of the grievous crime. The correct approach, as
spelt out by Bachan Singh, is to adopt a liberal and expansive approach to the
mitigating factors, and then consider whether the case fell within the rarest of rare
category. The importance of this approach of cumulatively considering mitigating
factors has been stressed in Raghubir Singh v. State of Haryana 33. In Triveniben v. State

26
(2013) 5 SCC 546
27
(2009) 5 SCC 740; Lehna v. State of Haryana (2002) 3 SCC 76; Gudda v. State of Madhya Pradesh (2013) 16 SCC
596, Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC 317
28
(2002) 5 SCC 234
29
(2007) 3 SCC 1
30
(2010) 9 SCC 567
31
(2011) 14 SCC 401
32
(2013) 3 SCC 215
33
(1975) 3 SCC 10 37
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of Gujarat 34(Const. Bench) it was held that “Death sentence cannot be given if there is
any mitigating circumstance in favour of the accused. All circumstances of the case
should be aggravating”.
ii. Young age of the accused: In the cases of State of Bihar v. Hari Kishun Sada35 &
Sunil Adiwasi v. State of M.P.36, the death sentence awarded to the offenders by the trial
court in the case of rape and murder of a minor girl was remitted to life imprisonment,
keeping in view the fact that they were young men, and were first time offenders.
iii. Socio-economic status of the accused: In Allauddin Mian v. State of Bihar the
Supreme Court observed that the absence of recording of facts on socio-economic
conditions make it difficult to confirm the death penalty. In the present case, the
offender is a man of rural background whose occupation is agriculture. Thus, his
limited means need to be considered while awarding a death penalty to him.
iv. The crime was not premeditated: There is no evidence on record to demonstrate that
the rape and murder of the victim was planned and pre-meditated. The accused never
knew that she would be present at the relevant spot on the fateful day.
v. Lack of criminal antecedents: The prosecution made no effort to rule out lack of
criminal antecedents, especially to adduce material in this regard. This court has
considered lack of criminal antecedents as a relevant factor mitigating factor37.

In the present case, the death of the victim occurred not because of strangulation but because of
excessive bleeding. The death occurred, therefore, as a consequence of, and not because of any
specific overt act of the accused. Death penalty, in this case, would thus be improper to impose, as
there was no element of premeditation or intention to cause death. The case under no
circumstance attracts the rarest of rare doctrine.
It is humbly submitted that the accused is a young man of 30 years of age, and has no prior
criminal records. The appellants have failed to establish the fact that the accused is a criminal of
so serious a nature that his existence will cause threat to the safety of the society. Besides, given
his age, the possibility of reform and rehabilitation cannot be ruled out. In the light of the
abovementioned authorities, it is most humbly submitted that the case does not fall within the
ambit of rarest of rare cases, and thus, the sentence of life imprisonment awarded by this court
vide order dated 10-11-2019 be maintained, and not changed to that of death penalty.

34
(1989) 1 SCC 678
35
2018 SCC Online Pat 1988
36
2013 SCC Online MP 5598; Harnam Singh v. State of Uttar Pradesh (1976) 1 SCC 163; Amit v. State of
Maharashtra (2003) 8 SCC 93; Rahul v. State of Maharashtra (2005) 10 SCC 322
37
Nirmal Singh v. State of Haryana (1999) 3 SCC 670; Raju v. State of Haryana (2001) 9 SCC 50; Amit v. State of
Maharashtra (2003) 8 SCC 93; Surender Pal v. State of Gujarat (2005) 3 SCC 127
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Prayer

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon‘ble Court be pleased to kindly adjudge and declare that:

1. The Present Review Petition filed by the Intervenor/ Review Petitioner is Not
Maintainable and liable to be dismissed.

2. Costs may be awarded in favour of the Accused.

3. Death penalty not be restored to the Accused.

AND/OR

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Fairness, Equity & Good Conscience.

For This Act of Kindness, the Prosecution as in Duty Bound, Shall Forever Pray.

Place: New Delhi S/d…………...

Date: 23rd November 2020 Counsel for the Respondent

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