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P – 04 1ST NATIONAL MOOT COURT COMPETITION, 2016 BEFORE THE Citation preview
Memorial HON‟BLE SUPREME COURT OF REPUBLIC OF INDIANA (SPECIAL
LEAVE
On Behalf P – 04 1ST NATIONAL MOOT COURT COMPETITION, 2016
BEFORE THE HON‟BLE SUPREME COURT OF REPUBLIC
 Views 834  Downloads 34  File size 523KB

of  Report DMCA / Copyright

OF INDIANA

Petitioner  DOWNLOAD FILE

(SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE
CONSTITUTION OF REPUBLIC OF INDIANA)

17 of 35 IN THE MATTER OF SHYAMA

............................................................................................................PETITIONER
SHEKHAR................................................................................
...........................PETITIONER HUMAN WELFARE
10
is substantial question of law. The SLP hence stands maintainable. The petitioner therefore
ORGANISATION.............................................................PETITIONER V.
contends before the Hon‟ble Supreme Court of Indiana that the instant petition should be held REPUBLIC OF
maintainable. INDIANA................................................................................RESPONDENT
I.2. THE PETITIONER HAS EXHAUSTED ALL ALTERNATIVE REMEDIES.

The petitioner have exhausted all the alternative remedies for the protection of their legal and WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER
constitutional rights and now have ended up on the gates of the Supreme Court and by the 1
 Author / present SLP the petitioners claim for protection of their rights.
11
It is an exceptional and

Uploaded extraordinary power,

12
of a residuary and reserve nature
13
and, therefore, the province of its

exercise cannot be determined exhaustively. Therefore the petitioner contends that the SLP
TABLE OF CONTENTS
should be maintainable as the petitioners have exhausted all the alternative remedies.14
AjitabhGoel
I.3. THE DECISION OF LOWER COURTS CAUSES INJUSTICE.
LIST OF ABBREVIATIONS
_______________________________________________4 INDEX
 
The Petitioner challenges the decision of the lower court by the privilege given under Article
15
136 of the Constitution of Republic of Indiana. The Supreme Court can grant special leave to OF
any aggrieved by the decision of any lower court.
16
AUTHORITIES_______________________________________________5
Like 0
In the case at hand, requisite and proper inquiries were not conducted regarding the identity of - 9 STATEMENT OF
0 comments the age of Shyama and the impugned order was passed mechanically without application of the JURISDICTION_________________________________________10
STATEMENT OF
provisions of the Juvenile Justice (Care and Protection of Children) Act, 2014. Hence the matter
Sort by Newest concerned is of great public importance. The SC is not precluded from going into the question of
FACTS_________________________________________________11
STATEMENT OF
Add a comment... 10
Bengal Chemical Pharmaceutical Works ltd v. Employees, A.I.R. 1959 S.C. 633(635); TirupatiBalaji
Developer Pvt. Ltd. v. State of Bihar, A.I.R. 2004 S.C. 2351.
ISSUES_________________________________________________12
11

SUMMARY OF
MI builders (P) ltd. v. Radhey Shyam Sahu, A.I.R.1999 S.C. 2468.
12
Dhakeshwari Cotton Mills v. C.I.T., A.I.R. 1955 S.C. 65.
13
Durga Shankar Mehta v. Thakur Raghunath Singh, A.I.R. 1954 S.C. 520.
14

ARGUMENTS_________________________________________13 -
Haryana State Industrial coprn. v. Cork mfg. Co., A.I.R. 2007 8 S.C.C. 120.
15
Kerala State Board v. Kurein E kalathil, A.I.R. 2000 6 S.C.C. 293.
16
The Supreme Court Rules, 1966, Art 136, Order XVI Ch. XXXVII, Sec. E.

17 14 ARGUMENTS
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ADVANCED____________________________________________15
- 34 I.

THAT THE SPECIAL LEAVE PETITION FILED BY SHYAMA

facts under article 136, if it considers it necessary to do so.17
AND SHEKHAR ARE MAINTAINABLE BEFORE THE
It is submitted that, the present facts in issue satisfy all of the above mentioned criteria. The case

involves the matter of general public importance and it directly and substantially affects the
HON’BLE SUPREME COURT OF
rights of the parties as the order is erroneous and prejudicial to the interest of Children. The SLP INDIANA.________________________________________________15
I.1.THE JURISDICTION OF SC UNDER ARTICLE 136 CAN
Recommend Stories ALWAYS BE INVOKED WHEN A SUBSTANTIAL QUESTION
OF LAW ARISES.15 I.2. THE DECISION OF LOWER COURTS
CAUSES INJUSTICE.________17 I.3.
Memorial On Behalf of Petitioner
s BEFORE THE HON’BLE HIGH COURT THE
OF KERALA ORIGINAL WRIT
JURISDICTION W.P. (CIVIL) PETITIONER
NO.__________OF2021 UNDER ARTICLE
226 HAS

 1  0  166KB
Read more EXHAUSTED

ALL
Memorial On Behalf of Petitioner....
TC: 10 9TH FYLC- RANKA NATIONAL ALTERNATIVE
MOOT COURT COMPETITION, 2019.
BEFORE THE HON’BLE REPUBLIC REMEDIES._____________________________________________________17
COURT OF INDIANA WRIT PETITI
II.
 502  29  222KB
Read more
THAT THE PROVISIONS OF THE JUVENILE JUSTICE (CARE
& PROTECTION
Memorial On Behalf On Petitioner
LAW INFORMANTS 1st NATIONAL OF
MOOT COURT COMPETITION 2021
LAW INFORMANTS 1st NATIONAL CHILDREN)
MOOT COURT COMPETITION 2021
Team C ACT,

 1  0  182KB
Read more 2014

CLASSIFYING
Memorial On Behalf of The Petitioner
MEMORIAL ON BEHALF OF THE AMONG
PETITIONER TEAM CODE – 41P DR.
RAM MANOHAR LOHIYA NATIONAL JUVENILES ARE INVALID AND VIOLATIVE OF THE
LAW UNIVERSITY CONCOURS 2021 CONSTITUTIONAL ANDINTERNATIONAL
BEFO PROVISIONS._________________________________18

 168  10  796KB
Read more 2

II.1. THE PROVISIONS OF JUVENILE JUSTICE (CARE AND

Moot Memorial on Behalf of Petitioner PROTECTION OF CHILDREN) ACT, 2014 CLASSIFYING
Moot Court and Internship (Clinical AMONG JUVENILES IS VIOLATIVE OF CONSTITUTIONAL
Paper – II) 2019-20 IN THE HON’BLE PROVISIONS.___________________18 II. 2. THE
SUPREME COURT OF MAHABHARATA CLASSIFICATION OF JUVENILES IS AGAINST THE
Writ Petition (Ci INTERNATIONAL NORMS ESTABLISHED FOR
JUVENILES.__________21
 737  44  237KB
Read more
III. THAT THE EVIDENCES ON RECORD ARE
INSUFFICIENT TO PROVE THE OFFENCES OF WHICH
Memorial On Behalf of The Petitioner SHEKHAR HAS BEEN CONVICTED.____________25 III.1.THE
TEAM CODE: DR.ANNASAHEB CIRCUMSTANTIAL EVIDENCES ARE INCONCLUSIVE IN
G.D.BENDALE MEMORIAL 14th NATURE._______________________________________________________25
NATIONAL MOOT COURT III.2.RAM MANOHAR‟S STATEMENT CANNOT BE RELIED
COMPETITION S.S.MANIYAR LAW UPON.____26
COLLEGE, JALGOAN BEF
IV. THAT THE CRIMINAL PROCEEDING INITIATED
 1,606  228  602KB AGAINST SHYAMA WERE INVALID AND BE
Read more
QUASHED.__________________________________29 IV.1.THE
EVIDENCE ON RECORDS ARE INSUFFICIENT TO PROVE
Memorial on behalf of the Petitioner SHYAMA GUILTY OF OFFENCES FOR WHICH HE IS
(State) CHARGED._____29 IV.2. SHYAMA SHOULD BE TREATED
K.K. LUTHRA MEMORIAL MOOT COURT LIKE A MINOR.______________31 IV.3. THERE WAS ABUSE
COMPETITION, 2017 URN 1306 URN OF DUE PROCESS OF LAW._______________32
1306 XIII K.K. LUTHRA MEMORIAL
MOOT COURT COMPETITION, PRAYER.________________________________________________________________35

 301  33  700KB
Read more 3

LIST OF ABBREVIATIONS
Memorial on behalf of petitioner (1)
TC: 10 9TH FYLC- RANKA NATIONAL 1.
MOOT COURT COMPETITION, 2019.
BEFORE THE HON’BLE REPUBLIC SLP
COURT OF INDIANA WRIT PETITI
SPECIAL LEAVE PETITION
 976  57  224KB
Read more
2.

Memorial on Behalf of Petitioner, Tc- SC

o8
VI JUSTICE MURTAZA HUSSAIN SUPREME COURT
MEMORIAL MOOT COURT
COMPETITION TEAM CODE- TC08 VI 3.
JUSTICE MURTAZA HUSSAIN
MEMORIAL MOOT COU ART

 360  68  927KB
Read more ARTICLE

4.

ROI

REPUBLIC OF INDIANA

5.

PARA

6.

AIR

ALL INDIA REPORTER

7.

ICCPR

INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL

RIGHTS, 1966

8.

UNCRC

UNITED NATION CONVENTION ON THE RIGHTS OF THE

CHILDREN

9.

SCC

SUPREME COURT CASES

10.

SEC

SECTION

11.

U.P.

UTTAR PRADESH

12.

IO

INVESTIGATING OFFICER

13.

UK

UNITED KINGDOM

14.

JJ

JUVENILE JUSTICE

15.

CRPC

CODE OF CRIMINAL PROCEDURE

16.

IPC

INDIAN PENAL CODE

17.

HC

HIGH COURT

18.

UDHR

UNIVERSAL DECLERATION ON HUMAN RIGHTS

19.

ECHR

EUROPEAN CONVENTION ON HUMAN RIGHTS

20.

U/S

UNDER SECTION

21.

ALR

AMERICAN LAW REGISTER

INDEX OF AUTHORITIES

Serial No.

Referred CASES

to in:

1.

A. Sukriyakala v. Mohan Doss and others, A.I.R. 2007 9

S.C.C. 196.

18

2.

Achyut Adhicary v. West Bengal, A.I.R. 1963 1039 (S.C.).

17

3.

Ashish Batham v. State of M.P., A.I.R. 2002 S.C. 3206.

27

4.

Babu Khan v. State of Rajasthan, A.I.R. 1997 S.C. 2960.

30

5.

Bakhshish Singh v State of Punjab, A.I.R. 1971 S.C. 2016 3

S.C.C. 182.

26

6.

Balakrishnaiyer v. RamaswamiIyer, A.I.R. 1965 S.C. 195.

18

7.

Bengal Chemical Pharmaceutical Works ltd v. Employees,

A.I.R. 1959 S.C. 16 633(635)

8.

Budhwa v. State of M.P, A.I.R. 1991 S.C. 4.

26

9.

C.C.E v. Standard Motor Products, A.I.R.1989 1298 (S.C.)

16

10.

Central Bureau of Investigation v. V.C. Shukla, A.I.R. 1998

Cr LJ 1905.

30

11.

Chonampra v. State of Kerala, A.I.R. 1979 S.C. 1761.

28

12.

D.S. Nakara v. Union of India, A.I.R. 1983 130.

20

13.

Dadu v. State of Maharashtra, A.I.R. 2000 8 S.C.C. 437.

24

14.

Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1

S.C.C. 212(S.C.).

15

15.

Delhi Transport Corporation v. DTC Mazdoor Union, A.I.R.

1990 S.C.R. 1 33 142.

16.

Deonandan Mishra v. State of Bihar, A.I.R. 1955 2 S.C.R. 570.

26

17.

Dhakeshwari Cotton Mills v. C.I.T., A.I.R. 1955 S.C. 65.

17

18.

Dhananjoy Chatterjee v. State of W.B, A.I.R. 1994 2 S.C.C.

220.

30

19.

Dial Singh Narain Singh v. Rajapal Jagan Nath, A.I.R. 1969

P&H 350.

27

20.

Durga Shankar Mehta v. Thakur Raghunath Singh, A.I.R.

1954 S.C. 520.

17

21.

Emperor v.Fakir Mahomed, A.I.R. 1935 38 BomLR160.

30

22.

Empress v. Rama Birapa, (1878) 3 BOM 12, 7.

31

23.

Gaisuddin v. State of Assam, A.I.R. 1977 Cri LJ 1512.

27

24.

Ganpat v. State, 1987 Cr LJ 6 Del.

26

25.

Golaknath V. State of Punjab, A.I.R. 1967 1643.

21

26.

Harendra Narain Singh v. State of Bihar, A.I.R. 1991 S.C.

1842.

26 5

27.

Haryana State Industrial coprn. v. Cork mfg. Co., A.I.R.

2007 8 S.C.C. 120.

16, 17

28.

HazariLal v. State(Delhi Admn.), A.I.R. 1980 S.C.C. (Cri) 458.

27

29.

Heer v. State of Rajasthan, A.I.R. 2007 S.C. 2425.

28

30.

Hussainara Khatoon v. Home Secretary State of Bihar,

A.I.R. 1979 S.C.R. 33 532.

31.

Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477.

20

32.

Ismail Ahmed v. MominBibi, A.I.R. 1941 ¶11.

28

33.

Jamadar Singh v. E., 21 (854).

28

34.

Janshed Hormusji Wadia v. Board of Trustees Port of

Mumbai, A.I.R. 2004 3 16 S.C.C. 214 (SC).

35.

Joginder Nath v. Union of India, A.I.R. 1975 S.C. 511.

19

36.

Kameshwar Singh v. State of Bihar, A.I.R. 1952 1 S.C.R. 889.

20

37.

Kanan v. State of Kerala, A.I.R. 1979 Cr LJ 919.

28

38.

Kathi Raning Rawat v. The State of Saurashtra, A.I.R. 1952

991

17

39.

Kerala State Board v. Kurein E kalathil, A.I.R. 2000 6 S.C.C.

293.

17

40.

Keshvanand Bharti V State of Kerala, A.I.R. 1973 4 S.C.C.

225.

21

41.

Laxman Naik v. State of Orissa, A.I.R. 1995 S.C. 1387

26

42.

M. Nagaraj v. Union of India, A.I.R. 2007 S.C. 71.

19

43.

Madan Gopal Kakkad v. Naval Dubey and Anr., A.I.R. 1992

3 SCC 204.

30

44.

MadhuLimaye v. Supdt. Tihar Jail Delhi, A.I.R. 1975 1505.

21

45.

Maneka Gandhi v. Union of India, A.I.R. 1978 597.

33

46.

Mangulu Kanhar v. State of Orissa, A.I.R. 1995 Cr LJ 2036

(ori).

27

47.

MI builders (P) ltd. v. Radhey Shyam Sahu, A.I.R.1999 S.C.

2468.

17

48.

Miller v. Alabama, 567 U.S. 2012.

19

49.

Mithu v. State of Punjab, A.I.R. 1983 2 S.C.C. 277.

24

50.

Murugan v. State, A.I.R. 2009 S.C. 72.

28

51.

Musheer Khan v. State of M.P., A.I.R. 2010 S.C. 762.

30

52.

Nandini Satpathy v. P.L. Dani, A.I.R. 1978 1025.

33

53.

Nazir Hossain Haider v. The State, A.I.R. 1997.

32

54.

Paramjeet Singh v. State of Uttarakhand, A.I.R. 2011 S.C.

200.
26

55.

Pawan Kumar v. State of Haryana, A.I.R. 2003 11 S.C.C. 241

(S.C.).

16

56.

People v Beslanovics, 57 N.Y.2d 726 (1982).

27

57.

People v Newman, 46 N.Y.2d 126 (1978).

27

58.

People v. Antommarchi, 80 N.Y.2d 247, 252-253 (1992).

27

59.

People v. Jones, 27 N.Y.2d 222 1970.

26

60.

People v. Whalen, 59 N.Y.2d 273, 279 (1983).

27

61.

Perla Somasekhara Reddy v. State of A. P, A.I.R. 2009 S.C.

2622.

28

62.

R v. Buckley, 1999 163 JP 561.

30

63.

R v. Sharp, 1988 1 All ER 65, HL.

33

64.

R. v. Prater, 1960 2 Q.B. 464.

25

65.

Ramesh Prasad v. State of Bihar, A.I.R. 1978 S.C. 327.

20

66.

Tamil Nadu Electricity Board v. R. Veeraswamy, A.I.R. 1999

2 S.C.R. 221.

20

67.

Salil Bali v. Union of India, A.I.R. 2013.

20

68.

Sanaboina Satyanarayan v. Govt. of A.P., A.I.R. 2003 S.C.R.

874.

21

69.

Sangappa Nigappa Malabadi v. State of Maharashtra,

A.I.R. 1987 (1) 30 BomCR 576.

70.

Sewaki v. State of H.P, A.I.R. 1981 Cri LJ 919.

27

71.

Shangara v. State of Punjab, A.I.R. 1995 S.C.C. (Cr.) 163.

27

72.

Sham Sunder v. Puran, A.I.R 1990 4 SCC 731.

15

73.

Sharad v. State of Maharashtra, A.I.R. 1984 S.C. 1622.

26

74.

Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and

Manufacturing 15 Co. Ltd., A.I.R. 1962 S.C. 1314.

75.

Sooraj v. State of Kerala, 1994 Cr LJ 1155 (ker).

31

76.

State of Goa v. Pandurang Mohite, A.I.R. 2009 S.C. 1066.

28

77.

State of H.P v. Diwana, 1955 Cr LJ 3002.

26

78.

State of Maharashtra v. Vilas Pandurang, 1999 Cr LJ 1062.

31

79.

State Of Rajasthan v. N.K, A.I.R. 2000 S.C.W. 1407.

33

80.

State of U.P v. Indian Hume pipe co. Ltd., A.I.R. 1977

S.C.1132.

16

81.

State of U.P v. Mukunde Singh, A.I.R. 1994 2 S.C.C. 191.

30

82.

Subramanian Swamy v. Raju, A.I.R. 2014 8 S.C.C. 390.

20

83.

Taylor v. Kentucky, 436 U.S. 478 (1978).

27

84.

Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L.

Ed. 2d 702

33

[1988]. 85.

TirupatiBalaji Developer Pvt. Ltd. v. State of Bihar, A.I.R.

2004 S.C. 2351.

16

86.

Victor v. Nebraska, 511 U.S. 1994.

26

87.

Viseswaran v. State, A.I.R. 2003 Cri LJ 2548 S.C.

27

88.

Vishnu Undrya v. State Of Maharashtra, A.I.R. 2005.

31

89.

Winship, 397 U.S. 358 (1970).

27

INTERNATIONAL AND REGIONAL INSTRUMENTS 1.

European Convention on Human Rights.

33

2.

International Covenant for Protection of Civil and Political

Rights.

33

3.

International Covenant on Civil and Political Rights

Article 24.

23

4.

Juvenile Justice (Care and Protection of Children) Act,

2014.

32

5.

Juvenile Justice Rules 2007 Rule 12.

31

6.

National Campaign to Reform State Juvenile Justice

Systems (U.S.).

24

7.

Parliamentary Standing Committee on Human Resource

Development, 264th 21 Report ¶ 3.21.

8.

The Department-Related Parliamentary Standing

Committee on Human 24 Resource Development, 264th
Report, (para 3.29).

9.

The Supreme Court Rules, 1966, Art 136, Order XVI Ch.
XXXVII, Sec. E.

17

10.

United Nation Convention on the Rights of Child.

23

11.

United Nations Rules for the Protection of Juveniles

Deprived of their Liberty 23 1990 Rule 11 part 2.

12.

United Nations Standard Minimum Rules for the

Administration of Juvenile 23 Justice Rule 7.

13.

United Nations Rules for the Protection of Juveniles

Deprived of their Liberty 23 1990 Rule 4 part 1.

14.

Universal Declaration of Human Rights Article 10.

15

Code of Criminal Procedure, 1973

16.

Indian Penal Code, 1860

17.

The Indian Evidence Act, 1872

18.

The Constitution of India, 1950

33

BOOKS 1.

B M Prasad & Manish Mohan, The Law of Evidence 387 ¶1

(25th Edition 27 Ratanlal & Dhirajlal 2013). 8

2.

B M Prasad & Manish Mohan, The Law of Evidence 788

(25th Edition 27 Ratanlal & Dhirajlal 2013).

3.

Basu D.D, Constitution of India ,14th edition 2009,

LexisNexis, Butterworths Wadhwa Publication Nagpur.

4.

BLACK‟S LAW DICTIONARY (West Group, 7th ed.)

5.

Constitution of India Article 326.

6.

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

2009)

7.

H.M. Seervai, Constitutional Law Of India (4th ed. 2010);

see also 35 16

19

Halsbury‟s Laws of India (2007). 8.

Jain M.P., Indian Constitutional Law, 6th Edition 2011,

LexisNexis Butterworth Wadhwa Nagpur.

9.

Justice J V Chandrachud, The law of evidence 75 (21st

edition Ratanlal & 31 Dhirajlal ,Wadhwa & Company).

10.

Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

11.

Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

12.

Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed.

(2011)

13.

Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed.

(2006)

14.

Shukla V.N , Constitution of India, 11th edition 2008,

Eastern Book Company.

ARTICLES 1.

Bonnie & Scott, “The Teenage Brain: Adolescent Research

and the Law”, 20 Current Directions in Psychological
Science, 22(2) 158–161 (2013), p.162.

2.

Bonnie & Scott, “The Teenage Brain: Adolescent Research

and the Law”, 20 Current Directions in Psychological
Science, 22(2) 158–161 (2013), p.161.

3.

Hari Om Tripathi and Shourya Raj, Stages of School

Education in India,

29

www.urbanpro.com/a/stages-of-school-education-in-
india. 4.

J. F. B., The American Law Register, Vol. 16, No. 12, New
Series Volume 7 25 (Oct. - Nov., 1868), pp. 705-713.

5.

Leonard Jaffee, „Of Probativity and Probability' 46

University of Pittsburgh, 25 (Law Review 924, 934, 1985).

6.

Simon Bunter, How long can an identifiable fingerprint

persist, April 2014.

30

STATEMENT OF JURISDICTION

The Petitioners have approached the Hon‟ble Supreme

Court under Article 136 of the Constitution of Republic of
Indiana, 1950. Article 136 of the Constitution of Republic 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 INDIA. (2) NOTHING IN CLAUSE (1) SHALL APPLY TO
ANY JUDGMENT, DETERMINATION, SENTENCE OR
ORDER PASSED OR MADE BY ANY COURT OR TRIBUNAL
CONSTITUTED BY OR UNDER ANY LAW RELATING TO
THE ARMED FORCES.”

10

STATEMENT OF FACTS BACKGROUND: Shyama was a

domestic worker since past six years under employment
of Mr. Batra after he dropped out from government
school from sixth standard. He was ill treated by Vanita
and Ravi children of Mr. Batra. One day while performing
their routine, Ravi had an intense fight with Shekhar in
the park. Shekhar and Ravi had animosity since
childhood. On 7th March, 2015, Shyama took permission
from Mr. Batra to go to his village on leave for 3 Days. On
8th March, 2015, Mrs.Batra had planned to go to a
painting exhibition with her children. At 7:30 p.m. Ravi
sensed Vanita was missing. Ravi reached basement in
search of Vanita where he saw four guys trying to outrage
her modesty. When Ravi tried to save his sister, he was hit
by rod on head and abdomen which later caused his
death and Vanita was killed by strangulation.
INVESTIGATION: On 10th March IO arrested Shekhar on
the basis of statement by Ram Manohar who saw
Shekhar sneaking out of the basement on the night of
8th March, 2015. On 12th March Shyama along with Raju
and Ranjeer (aged 17 years) were arrested who were
Shekhar‟s friend. PROCEEDINGS IN JUVENILE BOARD,
SESSION COURT & HIGH COURT: On 15th March, 2015
case of Shyama & Shekhar was referred to Session court
by Juvenile Board as they were found capable of
committing offences for which they were charged.
Shekhar‟s case was later remanded back to Juvenile
board where he was sentenced for three years of remand
in special homes. Shyama requested for a bone test for
age determination as his age was not proved, which was
denied by the court & was sentenced three years of
imprisonment. Later a cross appeal was filled by Mr. Batra
in which High Court found Shyama & Shekhar guilty u/s
302 of penal code & were sentenced life imprisonment
and imprisonment for a period of 10 years respectively.
And now this SLP filled by Shyama and Shekhar lie before
the Hon‟ble Apex Court of Indiana. 11

STATEMENT OF ISSUES

The following issues are to be adjudicated upon in the

instant case:

ISSUE NO.I: Whether The Special Leave Petition filed By

Shyama And Shekhar Are Maintainable Before The
Hon‟ble Supreme Court Of Indiana.

ISSUE NO.II: Whether the Provisions of the Juvenile

Justice (Care & Protection Of Children) Act, 2014
classifying among Juveniles are within the ambit of
Constitutional and International Provisions.

ISSUE NO.III: Whether the evidences on record are

sufficient to prove the offences of which Shekhar has
been convicted.

ISSUE NO.IV: Whether the Criminal proceeding initiated

against Shyama were valid and be upheld.

12

SUMMARYARY OF ARGUMENTS CONTENTION NO.I: THAT

THE SPECIAL LEAVE PETITION FILED BY SHYAMA AND
SHEKHAR ARE MAINTAINABLE BEFORE THE HON’BLE
SUPREME COURT OF INDIANA. It is humbly submitted
before the Hon‟ble court that the instant SLP is
maintainable. As, the SLP consists a substantial question
of Law, challenging the constitutional validity of the
Juvenile Justice Act, 2014. The SLP challenges the
decision of lower courts as these decisions have caused
grave injustice. The lower courts have convicted Shyama
and Shekhar on insufficient grounds and have violated
the principles of Juvenile Justice System. The petitioners
have exhausted all the alternative remedies thus have
ended up on the gates of Apex court for protection of
their rights and thus, the SLP stands maintainable.
CONTENTION NO.II: THAT THE PROVISIONS OF THE
JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN)
ACT, 2014 CLASSIFYING AMONG JUVENILES ARE INVALID
AND VIOLATIVE OF THE CONSTITUTIONAL AND
INTERNATIONAL PROVISIONS. It is humbly submitted
before the Hon‟ble court that the provision of differential
treatment of juveniles in conflict with law for heinous
crimes aged 16-18 years is against the objective of juvenile
justice system that is to rehabilitate such children by
catering their needs by care and reformation. Scientific
data furnish that brains of such children below the age of
18 years are still in development phase and they are not
mature enough to understand the nature of their act. So
rigorous treatment will make them hardened rather than
reformed. The provisions are violative of constitutional
safeguards provided to juveniles under article 14, 15(3)
and 21 of the constitution of Indiana. These provisions are
also violative of several international norms and
conventions. Thus these provisions stand invalid and
unconstitutional. 13

CONTENTION NO.III: THAT THE EVIDENCES ON RECORD

ARE INSUFFICIENT TO PROVE THE OFFENCES OF
WHICH SHEKHAR HAS BEEN CONVICTED. It is humbly
submitted that the evidence presented at the trial stage
are insufficient and inconclusive to show that Shekhar is
indeed guilty of the aforementioned offences and the
evidence must be reviewed de novo. The circumstantial
evidence put forward against accused are inconclusive in
nature as none of the existing circumstances are
concrete enough to prove the factum probandum. The
available chain of circumstances fails to prove the
proposed hypothesis of Shekhar‟s guilt. The statement of
Ram Manohar is erroneous and lacks the requisite
probative value and is not a substantial evidence under
law. Thus the proceedings in lower courts were based on
wrong and illogical inferences and evidences which do
not prove case beyond reasonable doubt and hence are
liable to be quashed. CONTENTION NO. IV: THE CRIMINAL
PROCEEDING INITIATED AGAINST SHYAMA WERE
INVALID AND BE QUASHED. It is humbly submitted
before the Hon‟ble court that Shyama is a child in need
of care. The evidences produced against him are vague
and inconclusive to prove his guilt. Arguendo: Shyama is
a minor and should be given protection under juvenile
justice act. Session court convicted him u/s 304 which is
not a heinous offence and hence he cannot be tried in
session court not can he be sentenced any imprisonment
according to provisions of Juvenile Justice Act, 2014. The
Session court didn‟t took adequate measures to confirm
his age and the decision of were given on mere
presumptions of guilt. The High court being an appellate
court didn‟t looked into the facts de novo and grounded
its decision on the findings of session court which were
erroneous and sentenced Shyama life imprisonment
which is prohibited under the act. Hence these
proceedings are invalid and be quashed.

14

ARGUMENTS ADVANCED CONTENTION I: THAT THE

SPECIAL LEAVE PETITION FILED BY SHYAMA AND
SHEKHAR ARE MAINTAINABLE BEFORE THE HON’BLE
SUPREME COURT OF INDIANA. It is humbly submitted
by the Petitioner that the Special Leave Petition filed by
Shyama and Shekhar against the judgement of Hon‟ble
High Court, Session Court and Juvenile Board is
maintainable under Article 136 of the Constitution of
Indiana. The decision of Session Court and High Court are
violative of the principles of law and cause grave injustice.
1 It is contented that the jurisdiction of the Supreme
Court under Article 136 can always be invoked when
there is a substantial question of law. The SLP also
challenges the provisions of Juvenile Justice Act, 2014
which discriminates among the juveniles and are
violative of basic structure of the constitution. The
petitioners have exhausted all the possible alternative
remedies and now seek justice and claim their
fundamental and legal rights from this Apex Court by the
way of SLP. I.1. JURISDICTION OF SC UNDER ARTICLE 136
CAN ALWAYS BE INVOKED WHEN A SUBSTANTIAL
QUESTION OF LAW ARISES. It is contented that the
matter involves substantial question of law and hence
entitled to be maintainable. Where findings are entered
without considering relevant materials and without
following proper legal procedure, SC interference is called
for.2 A Constitution Bench3 of this Court, while explaining
the import of the said expression, observed that: The
proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it
directly and substantially affects the rights of the parties
and if so whether it is either an open 1

Sham Sunder v. Puran, A.I.R 1990 4 SCC 731. Dale &

Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 S.C.C.
212(S.C.). 3 Sir Chunilal Mehta and Sons, Ltd. v. Century
Spinning and Manufacturing Co. Ltd., A.I.R. 1962 S.C. 1314.
2

15

question in the sense that it is not finally settled by this

Court or by the Privy Council or by the Federal Court or is
not free from difficulty or calls for discussion of alternative
views.4 The jurisdiction conferred under Art. 136 on the
SC are corrective one and not a restrictive one.5 A duty is
enjoined upon the SC to exercise its power by setting
right the illegality in the judgments is well-settled that
illegality must not be allowed to be perpetrated and
failure by the SC to interfere with the same would
amount to allowing the illegality to be perpetuated. 6 It
has been held in plethora of cases that when the
question of law of general public importance arises, the
jurisdiction of SC can be invoked by filing special leave
petition. In the present case, the issue involves matter of
General Public Importance and hence, entitled to be
maintainable. Article 136 is the residuary power of SC to
do justice where the court is satisfied that there is
injustice.7 The principle is that this court would never do
injustice nor allow injustice being perpetrated for the
sake of upholding technicalities.8 The SLP challenges the
constitutional validly of the provisions of the Juvenile
Justice Act, 2014 as far as they are inconsistent with the
provisions of the constitution. The provisions laid under
the Section 15 of the Act discriminate among the
Juveniles and are violative of the Article 14, 15 and 21 of
the constitution. The provisions are also violative of the
international rules and conventions that lay norms for
protection of juveniles. The SLP consist of a pure question
of law and should be held maintainable. 9 Article 136
confers on the Supreme Court to interfere in the
exceptional cases where the laws are uncertain and there

Ibid. Haryana State Industrial Corpn. V. Cork Mfg. Co., A.I.R.

2007 8 S.C.C. 359. 6 Pawan Kumar v. State of Haryana,
A.I.R. 2003 11 S.C.C. 241 (S.C.); see also 1 H.M. Seervai,
Constitutional Law Of India (4th ed. 2010); see also 35
Halsbury‟s Laws of India (2007). 7 C.C.E v. Standard Motor
Products, A.I.R.1989 1298 (S.C.), see also 1 H.M. Seervai,
Constitutional Law Of India (4th ed. 2010). 8 Janshed
Hormusji Wadia v. Board of Trustees Port of Mumbai,
A.I.R. 2004 3 S.C.C. 214 (SC). 9 State of U.P v. Indian Hume
pipe co. Ltd., A.I.R. 1977 S.C.1132. 5

16

is substantial question of law.10 The SLP hence stands

maintainable. The petitioner therefore contends before
the Hon‟ble Supreme Court of Indiana that the instant
petition should be held maintainable. I.2. THE
PETITIONER HAS EXHAUSTED ALL ALTERNATIVE
REMEDIES. The petitioner have exhausted all the
alternative remedies for the protection of their legal and
constitutional rights and now have ended up on the
gates of the Supreme Court and by the present SLP the
petitioners claim for protection of their rights. 11 It is an
exceptional and extraordinary power, 12 of a residuary
and reserve nature 13 and, therefore, the province of its
exercise cannot be determined exhaustively. Therefore
the petitioner contends that the SLP should be
maintainable as the petitioners have exhausted all the
alternative remedies.14 I.3. THE DECISION OF LOWER
COURTS CAUSES INJUSTICE. The Petitioner challenges
the decision of the lower court by the privilege given
under Article 136 of the Constitution of Republic of
Indiana.15 The Supreme Court can grant special leave to
any aggrieved by the decision of any lower court.16 In the
case at hand, requisite and proper inquiries were not
conducted regarding the identity of the age of Shyama
and the impugned order was passed mechanically
without application of the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2014. Hence
the matter concerned is of great public importance. The
SC is not precluded from going into the question of

10

Bengal Chemical Pharmaceutical Works ltd v. Employees,

A.I.R. 1959 S.C. 633(635); TirupatiBalaji Developer Pvt. Ltd.
v. State of Bihar, A.I.R. 2004 S.C. 2351. 11 MI builders (P) ltd.
v. Radhey Shyam Sahu, A.I.R.1999 S.C. 2468. 12
Dhakeshwari Cotton Mills v. C.I.T., A.I.R. 1955 S.C. 65. 13
Durga Shankar Mehta v. Thakur Raghunath Singh, A.I.R.
1954 S.C. 520. 14 Haryana State Industrial coprn. v. Cork
mfg. Co., A.I.R. 2007 8 S.C.C. 120. 15 Kerala State Board v.
Kurein E kalathil, A.I.R. 2000 6 S.C.C. 293. 16 The Supreme
Court Rules, 1966, Art 136, Order XVI Ch. XXXVII, Sec. E.

17

facts under article 136, if it considers it necessary to do

so.17 It is submitted that, the present facts in issue satisfy
all of the above mentioned criteria. The case involves the
matter of general public importance and it directly and
substantially affects the rights of the parties as the order
is erroneous and prejudicial to the interest of Children.
The SLP contains pure question of law and the
challenges the decision of lower courts which cause
abuse of due process of law and injustice and stands
maintainable.18 The constitution requests the apex court
to entertain the SLP under Article 136 as the matter lies
within the complete discretion of the SC and the only
limit upon it is the wisdom and good sense of judges of
court.19 CONTENTION II: THAT THE PROVISIONS OF THE
JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN)
ACT, 2014 CLASSIFYING AMONG JUVENILES ARE INVALID
AND VIOLATIVE OF THE CONSTITUTIONAL AND
INTERNATIONAL PROVISIONS. The Petitioners humbly
submits that the Juvenile Justice laws is to cater the
basic needs of Children found to be in conflict with law
by proper care, protection, development, treatment,
social re-integration, by adopting a child-friendly
approach. In a drastic and regressive move, the Act
proposes the introduction of a transfer system so that
children aged between 16 and 18 years and alleged to
have committed „heinous offences‟ should be tried and
sentenced as adults by provisions laid down in Section 15,
Section 18(3) and Section 94(1) which treats adolescents
as adults, the provisions incorrectly categorizes among
the juveniles in different categories. These provisions are
violative of constitutional provisions and international
norms established for protection of juveniles.

17

Kathi Raning Rawat v. The State of Saurashtra, A.I.R. 1952

991; see also Achyut Adhicary v. West Bengal, A.I.R. 1963
1039 (S.C.). 18 A. Sukriyakala v. Mohan Doss and others,
A.I.R. 2007 9 S.C.C. 196. 19 Bala Krishna Iyer v. Rama
SwamIyer, A.I.R. 1965 S.C. 195.

18

II.1. THE PROVISIONS OF JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2014 CLASSIFYING
AMONG JUVENILES IS VIOLATIVE OF CONSTITUTIONAL
PROVISIONS. It is humbly submitted that the provisions
which treat juveniles as adults treat two distinct
categories equally. This strikes at the very core of Article
14. The Supreme Court has repeatedly endorsed as part
of the Article 14 mandate that the principle that injustice
arises not only when equals are treated unequally,20 but
also when unequal are treated equally.21 Juveniles are
more amenable to reform and are prone to rehabilitative
interventions because of the plasticity of their brains. The
teenager‟s barins aren‟t completely developed and they
are incapable of fully understanding the consequences of
their action. The neuro-scientific data shows that frontal
lobe, especially the pre frontal lobe is the last part in
human brain to develop. Emotions and moody nature of
teens comes from the limbic system, which processes
emotions but is still developing.22 Juvenile Justice rules
2007 ensures principles of equality and non-
discrimination in Juveniles in conflict with law on the
basis of age and that there should be equality in
treatment under the Act.23 As stated in an amicus brief
for the American Psychological Association, the American
Psychiatric Association, and the National Association of
Social Workers before the Supreme Court of the United
States. “Juveniles typically outgrow their antisocial
behaviour as the impetuousness and recklessness of
youth subside in adulthood”.24 The provisions of
universal adult franchise have been inspired by the same
analogy where the person attains sufficient maturity to
formulate correct opinions after he becomes a major
that‟s why in the same vein the constitution of Republic
of Indiana guarantees right to vote to every citizen above
the age of 20

Joginder Nath v. Union of India, A.I.R. 1975 S.C. 511. M.

Nagaraj v. Union of India, A.I.R. 2007 S.C. 71. 22 Bonnie &
Scott, “The Teenage Brain: Adolescent Research and the
Law”, Current Directions in Psychological Science, 22(2)
158–161 (2013), p.162. 23 Juvenile Justice (Care and
Protection of Children) Rules,2007 Rule 3 Clause X
Chapter II. 24 Miller v. Alabama, 567 U.S. 2012. 21

19

eighteen years.25The Supreme Court held that the

provisions of previous JJ act 2000 were valid26 and the
constitutional validity of these provisions were upheld
and it was stated that there is noneed to treat juveniles
below the age of 18 years as major criminals.27 Article
15(3) of the Constitution provides special legal provisions
for women and children. The indifferent treatment of
children of 16 – 18 years old militates against this goal as
well as the overall objective of the Act to ensure care,
protection, and the ultimate rehabilitation of children in
conflict with the law. The provisions under section 15 of
the act requires the Juvenile Justice Board to assess,
along with the circumstances in which the heinous
offence was allegedly committed, whether the child
offender had the physical and mental capability to
commit the offence. The latest research indicates that
individualised assessments of adolescent mental
capacity are not possible. Any suggestion that it can be
done would mean “exceeding the limits of science. 28
Any therefore distinctly treating juveniles aged 16 – 18
years is a procedural arbitrariness and against the
principles of Article 14 which is the basic structure of the
constitution.29 It is arbitrary classification of equals which
violative of article 14.30 Protection against disqualification
violates the right to life under Article 21 and the right to
equality under Article 14. Children between 16 and 18
years found to be in conflict with the law for committing
heinous offence will incur disqualifications. These
provisions are in gross violation of both the concept,
„Equality before law‟ and „Equal protection of the law‟
which are the soul of Article 14, 31 the provisions of the
Act make discriminatory classification among

25

Constitution of India, 1950 Article 326. Subramanian

Swamy v. Raju, A.I.R. 2014 8 S.C.C. 390. 27 Salil Bali v. Union
of India, A.I.R. 2013. 28 Bonnie & Scott, “The Teenage Brain:
Adolescent Research and the Law”, Current Directions in
Psychological Science, 22(2) 158–161 (2013), p.161. 29 Indra
Sawhney v. Union of India, A.I.R. 1993 S.C. 477. 30 D.S.
Nakara v. Union of India, A.I.R. 1983 130. 31 Ramesh Prasad
v. State of Bihar, A.I.R. 1978 S.C. 327; Tamil Nadu Electricity
Board v. R. Veeraswamy, A.I.R. 1999 2 S.C.R. 221. 26

20

juveniles which violates the article 14 of the constitution.

32 While all children are protected against
disqualification attached to conviction, the act deprives
children convicted of heinous offences of this protection,
thus discriminating among children based on the forum
for trial, the offence, and the age. The juveniles tried for
heinous offence suffer disqualification under section 20
of the act for evaluation of reformative changes, which
discriminates among juveniles in term of stay and is
violative of article 14 as they should be treated equally.
33In the provisions of section 24(2) the right to life
guaranteed under article 21 of such Juveniles is violated
as the right to life entails the right to livelihood as well as
a life of dignity. This stands compromised through the
retention of the record of conviction and the withdrawal
of protection from disqualification. This also means
affecting of „reformation‟ and the ability to make a
positive contribution to society based on another
arbitrary assessment proposed under Section 21 will be
rendered meaningless, as the conviction will be held
against the child for life. It is humbly pleaded before the
Hon‟ble court that 16-18 years is an extremely sensitive
and critical age requiring greater protection. Hence, there
is no need to subject them to deterrent or adult judicial
system as it will go against provisions of the Constitution.
As stated by the Parliamentary Standing Committee on
Human Resource Development. 34 Therefore the act
should be held void as it affects the rights guaranteed to
the children by the part three of the constitution35 of
Republic of Indiana and is ultra vires to the provisions of
the constitution.36 II.2. THE CLASSIFICATION OF
JUVENILES IS AGAINST THE INTERNATIONAL NORMS
ESTABLISHED FOR JUVENILES. Article 2 of the UNCRC
requires all state parties to abide by the principle of non-
discrimination

32

Kameshwar Singh v. State of Bihar, A.I.R. 1952 1 S.C.R. 889.

MadhuLimaye v. Supdt. Tihar Jail Delhi, A.I.R. 1975 1505;
Sanaboina Satyanarayan v. Govt. of A.P., A.I.R. 2003 S.C.R.
874. 34 Parliamentary Standing Committee on Human
Resource Development, 264th Report ¶ 3.21. 35 Golaknath
V. State of Punjab, A.I.R. 1967 1643. 36 Keshvanand Bharti
V State of Kerala, A.I.R. 1973 4 S.C.C. 225. 33

21

and ensure that all children in conflict with the law are
treated equally. It follows that the disadvantageous
treatment of children based on their age and the nature
of the offence they allegedly commit would constitute a
violation of Article 2. Through the introduction of a
transfer system and a preliminary assessment procedure
to determine the capacity of a child to commit the crime
prior to the establishment of guilt, the JJ Act outs some
of the most basic tenets of the UNCRC. The transfer
provisions grossly violate Article 2 of the UNCRC and
incorporates punitive goals that have no place in the
juvenile justice system envisaged under the UNCRC. The
CRC has strongly recommended that State Parties
“abolish all forms of life imprisonment for offences
committed by persons under the age of 18.”Under
Section 21 of the act, life imprisonment with the
possibility of release can indeed be imposed on children
above 16 years. This goes against the recent normative
developments at the international level. According to the
Article 40(1) of the UNCRC, all children in conflict with the
law must be treated in a manner that is consistent with
their sense of dignity and worth and reinforces their
respect for human rights and fundamental freedoms.
The treatment must ensure promotion of their
reintegration into society. The JJ Act, 2014 ignores the
aims of reintegration and restoration of a child in conflict
with the law, by providing for a highly arbitrary
determination of their capability to make „meaningful
contributions‟ to society when they reach the age of 21
years. A failure to pass this test would result in an
automatic transfer to an adult jail. Even if a child is found
to have undergone reformative changes at the end of
this assessment process however, she or he will incur the
disqualifications attached to the conviction, making it
impossible to secure gainful employment or stand for
elections. In effect, reintegration would be impossible.
The UNCRC expressly requires that all children deprived
of their liberty be separated from adults. The CRC has
clarified that this separation is not merely technical and
“does not mean

22

that a child placed in a facility for children has to be

moved to a facility for adults immediately after he/she
turns 18.” 37 In gross disregard of Article 37(c) and the
Concluding Observation on it, the JJ Act takes an
untenable position on the separation of children from
adults, by proposing that the former be transferred to
adult prisons if they fail an assessment of their
reformation when they complete 21 years of age. Such a
transfer is incompatible with the clear prohibition on the
detention of children with adults under the UNCRC.
Section 15 of the JJ Act is in gross Violation of the
presumption of innocence under Article 40(2) (b)(i) of the
UNCRC . Presumption of innocence as the basic
procedure safeguards that are to be ensured for juveniles
under trail.38 The section 15 requires the Juvenile Justice
Board to assess, along with the circumstances in which
the child has allegedly committed the heinous offence,
whether he or she had the physical and mental capacity
to commit it. This assessment, the basis for transferring a
child to the Children‟s Court, which is a designated
Sessions Court, operates on the assumption that the
child has indeed committed the offence and thus violates
the cardinal principle of presumption of innocence under
Article 40(2)(b)(i). Such arbitrary assessments will
invariably prejudice the trial before the Children‟s Court.
The

United Nations Rules for the Protection of Juveniles

Deprived of their Liberty

prohibits

discrimination on the basis of age for implementation of

laws for juveniles39 and defines every person below the
age of 18 years as juvenile.40The UN convention on civil
and political rights prohibits deprivation of any person
from protections to be provided by virtue of his status as
a minor.41 The Department-Related Parliamentary
Standing Committee on Human Resource Development
on The Juvenile Justice (Care and Protection of Children)
Bill, 2014 also noted that clauses 37

United Nation Convention on the Rights of Child Article

37. United Nations Standard Minimum Rules for the
Administration of Juvenile Justice Rule 7. 39 United
Nations Rules for the Protection of Juveniles Deprived of
their Liberty 1990 Rule 4 part 1. 40 United Nations Rules
for the Protection of Juveniles Deprived of their Liberty
1990 Rule 11 part 2. 41 International Covenant on Civil and
Political Rights Article 24. 38

23

15(3), 16(1), 19(3), 20(1), 20(3), 21, and 22 of the Bill

constituted distinct violations of the provisions of the
UNCRC, 1989 and recommended their deletion. However,
all these provisions have been retained in the Bill passed
by the Lok Sabha, which ironically cites the UNCRC in its
Preamble.42The act goes against the letter and spirit of
the UN convention on child rights. Therefore it is humbly
pleaded before the Hon‟ble court that the Juvenile
Justice act is unconstitutional as much as in it treats
juveniles differently. It ousts the criminal system and
judicial function of the court and judicial discretions as
the matters fall within the jurisdiction of the courts.
Parliament cannot make laws that ousts the judicial
function of the court.4344 The act contemplates the
adversarial inquiry by imposing prime focus on the crime
but not the circumstances. Countries like U.K. Canada
and USA have departed from the obligations under the
UN Convention and are in breach of their international
commitments. The incidence of crime by juveniles in
those countries is very high and the statics show that the
crime index is on increase since the age of juveniles has
been decreased. These countries which have introduced
the judicial waiver system have also accepted that this
system has been ineffective and the juveniles which are
treated as adult tend to commit more serious offences in
future and become hardened criminal themselves.45
Therefore it is humbly pleaded before the Hon‟ble court
that the provisions classifying among on the basis age
are immaterial and violative of constitutional provisions
and international norms. The juvenile justice system
should seek to rehabilitate children, rather than punish
them for Juvenile criminal behaviour. They are regressive
and arbitrary in nature and should held void. 42

The Department-Related Parliamentary Standing

Committee on Human Resource Development, 264th
Report, (para 3.29). 43 Mithu v. State of Punjab, A.I.R. 1983
2 S.C.C. 277. 44 Dadu v. State of Maharashtra, A.I.R. 2000 8
S.C.C. 437. 45 National Campaign to Reform State
Juvenile Justice Systems (U.S.).

24

CONTENTION III. THAT THE EVIDENCE ON RECORD ARE

INSUFFICIENT TO PROVE THE OFFENCES OF WHICH
SHEKHAR HAS BEEN CONVICTED. In the instant matter,
the lower courts have convicted Shekhar of the offences
of Murder of Vanita and Ravi and outraging the modesty
of Vanita u/s 302, 304, 326 and 354 of the Indiana Penal
Code, 1860. With the evidence presented at the trial
stage, there are insufficient and inconclusive evidence to
show that Shekhar (hereinafter the “accused” for
contention III) is indeed guilty of the aforementioned
offences and an appeal has been filed for the review of
evidence de novo. III.1. THE CIRCUMSTANTIAL EVIDENCES
ARE INCONCLUSIVE IN NATURE. The petitioners humbly
submit before the Hon‟ble Court that the circumstantial
evidence put forward against accused are inconclusive in
nature. As Jaffee says, „Propositions are true or false; they
are not "probable".46 In court as elsewhere, the data
cannot 'speak for itself'. It has to be interpreted in the
light of the competing hypotheses put forward and
against a background of knowledge and experience
about the world. 47 In the present case, the plausibility of
the hypothesis put forward against accused at the trial
stage is inconclusive in nature. The circumstances
encompassing situation at hand fail to prove the factum
probandum. The rules as laid down by Wills on
Circumstantial Evidence, other writers on the subject
have repeated, and are as follows:-(1.) The circumstances
alleged as the basis of any legal inference must be strictly
and indubitably connected with the factum probandum.
(2.) The onus probandi is on the party who asserts the
existence of any fact which infers legal accountability.48
The circumstantial evidence that accused had hatred
towards Ravi and Vanita and they had a fight few days
prior to the omission are illogical as they derive mere
imaginary hypothesis

46

Leonard Jaffee, „Of Probativity and Probability' 46

University of Pittsburgh, (Law Review 924, 934, 1985). R. v.
Prater, 1960 2 Q.B. 464. 48 J. F. B., The ALR, Vol. 16, No. 12,
New Series Volume 7 (Oct. - Nov., 1868), pp. 705-713. 47

25

against accused. 49 Thus the available chain of

circumstances fails to prove the proposed hypothesis
that the accused murdered Ravi and Vanita and at the
same time fails to exclude any other possible hypothesis.
As observed by the Supreme Court of India in Bakhshish
Singh v State of Punjab50, “in a case resting on
circumstantial evidence, the circumstances put forward
must be satisfactorily proved and those circumstances
should be consistent only with the hypothesis of the guilt
of the accused.51 Again those circumstances should be of
a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved.” It would be most appealing if the
evaluation of evidence in a criminal case could lead to a
decision through a strictly logical process of consecutive
steps.52 There must be a chain of evidence so complete
as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused53 and
must show that in all human probability the act must
have been done by the accused54. It is humbly pleaded
before the apex court that is submitted that none of the
existing circumstances are concrete enough to prove the
factum probandum, as the trial court arrived at its
conclusion relying on the illogical and irrelevant
circumstantial evidences and the accused is entitled to
the benefit of doubt.55 III.2. RAMMANOHAR’S
STATEMENT CANNOT BE RELIED UPON. The Petitioner
submits that the testimony of Ram Manohar is erroneous
and lacks the requisite probative value.As Section 59
defines oral evidence, which includes all the statements
which the

49

Victor v. Nebraska, 511 U.S. 1994; People v. Jones, 27 N.Y.2d

222 1970. Bakhshish Singh v State of Punjab, A.I.R. 1971
S.C. 2016 3 S.C.C. 182. 51 Harendra Narain Singh v. State of
Bihar, A.I.R. 1991 S.C. 1842. 52 Deonandan Mishra v. State of
Bihar, A.I.R. 1955 2 S.C.R. 570; Laxman Naik v. State of
Orissa, A.I.R. 1995 S.C. 1387; Sharad v. State of Maharashtra,
A.I.R. 1984 S.C. 1622. 53 Bakshish Singh v. State of Punjab,
A.I.R. 1971 S.C. 2016; Ganpat v. State, 1987 Cr LJ 6 Del; State
of H.P v. Diwana, 1955 Cr LJ 3002. 54 Paramjeet Singh v.
State of Uttarakhand, A.I.R. 2011 S.C. 200. 55 Budhwa v.
State of M.P, A.I.R. 1991 S.C. 4. 50

26

court permits or requires to be made before it by

witness.56 In the present case the statement of Ram
Manohar was recorded by investigation officer, as per
provisions under section 161 of CrPC read together with
sec.157 of evidence act, the statement is not a substantive
evidence.57In the case of Sewaki v. State of H.P58, it was
stated that the statement given to police officer during
investigation is neither given on oath nor is it tested by
cross examination and hence is not substantive evidence.
The facts state that the omission of crime occurred
between 8:30 p.m. to 9:30 p.m. 59Statement of Ram
Manohar doesn‟t confirms about the time when he saw
accused sneaking out of the Basement, which is a
legitimate ground for shaking the credit of the
witness.60As Under the provisions of Sec. 156 of Indiana
evidence act it is a well settled law that such statements
should not be corroborated unless the statement is
credible and disposes other relevant facts such as time
when the fact occurred.61To prove the guilt of accused it
must be proved that he was at crime scene at the time of
omission not that he was present at the exhibition.
Hence it is an immaterial evidence and accused is
entitled to benefit of doubt62 as mere presence of
accused in the exhibition is not a ground to prove him
guilty, 63 unless the charges are proved beyond
reasonable doubt on the basis of clear, cogent, credible
or unimpeachable evidence.64 As per the provisions of
Section 9 of the evidence act, it was stated by the Apex
court in the case of Viseswaran v. state, 2003 Cri LJ 2548
SC65 that the identification of the accused must be done
either in identification parade or in the court as it is an
important evidence and must be 56

B M Prasad & Manish Mohan, The Law of Evidence 387 ¶1

(25th Edition Ratanlal & Dhirajlal 2013). HazariLal v.
State(Delhi Admn.), A.I.R. 1980 S.C.C. (Cri) 458; Gaisuddin
v. State of Assam, A.I.R. 1977 Cri LJ 1512. 58 Sewaki v. State
of H.P, A.I.R. 1981 Cri LJ 919. 59 ¶2 Moot Problem. 60 Dial
Singh Narain Singh v. Rajapal Jagan Nath, A.I.R. 1969 P&H
350. 61 B M Prasad & Manish Mohan, The Law of Evidence
788 (25 th Edition Ratanlal & Dhirajlal 2013). 62 Mangulu
Kanhar v. State of Orissa, A.I.R. 1995 Cr LJ 2036 (ori);
People v. Whalen, 59 N.Y.2d 273, 279 (1983); People v
Beslanovics, 57 N.Y.2d 726 (1982); People v Newman, 46
N.Y.2d 126 (1978). 63 Shangara v. State of Punjab, A.I.R.
1995 S.C.C. (Cr.) 163. 64 Ashish Batham v. State of M.P.,
A.I.R. 2002 S.C. 3206; Taylor v. Kentucky, 436 U.S. 478
(1978); Winship, 397 U.S. 358 (1970); Taylor v. Kentucky;
People v Antommarchi, 80 N.Y.2d 247, 252-253 (1992) 65
Viseswaran v. State, A.I.R. 2003 Cri LJ 2548 S.C. 57

27

presented with due care. In the present case no such

measure were taken and hence the Statement of Ram
Manohar is not admissible. The identification parade is an
essential measure to be taken for proper identification of
the culprit so as to test the veracity of the witness on the
question of his capability to identify, the unknown
person.66 The court in case of Heer v. State of
Rajasthan,67it is desirable to conduct test identification
parade to eliminate possibility of errors in identification of
culprit. The Rules adopted under the English Police and
Criminal Evidence Act, 1984 also recommends identity
 parade. The petitioner humbly states by bare reference to
the facts of the case and medical reports which expressly
states that out of the four culprits two pinned Vanita,
while other two were trying to outrage her modesty by
tearing her clothes. Therefore all four of the culprits were
in physical contact from Vanita. The medical evidence
and finger print reports make it clear that his finger
prints were not recovered from the body of Vanita. Which
makes it evident that he was not among the four culprits.
The oral evidence presented by Ram Manohar are
inconsistent with the medical evidence and hence
should not be relied upon.68 Therefore it is humbly
contended before the Hon‟ble court that the golden
thread which runs through the web of administration of
justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be
adopted. This view has been reiterated by the Supreme
Court in a series of decisions thereafter. State of Goa v.
Pandurang Mohite69 , Murugan v. State70 and Perla
Somasekhara Reddy v. State of A. P71 are a few among
them. And hence the criminal proceedings initiated
against Shekhar in lower courts were based on wrong
and illogical inferences and evidences which do not
prove case beyond reasonable 66

Kanan v. State of Kerala, A.I.R. 1979 Cr LJ 919; Chonampra

v. State of Kerala, A.I.R. 1979 S.C. 1761. Heer v. State of
Rajasthan, A.I.R. 2007 S.C. 2425. 68 Ismail Ahmed v.
MominBibi, A.I.R. 1941 ¶11;Jamadar Singh v. E., 21 (854) 69
State of Goa v. Pandurang Mohite, A.I.R. 2009 S.C. 1066. 70
Murugan v. State, A.I.R. 2009 S.C. 72. 71 Perla
Somasekhara Reddy v. State of A. P, A.I.R. 2009 S.C. 2622.
67

28

doubt and hence are liable to be quashed. CONTENTION

IV: THAT THE CRIMINAL PROCEEDINGS INITIATED
AGAINST SHYAMA WERE INVALID AND BE QUASHED. It
is humbly submitted before the Hon‟ble court that in the
instant matter, the lower courts have convicted Shyama
u/s 302, 304, 326 and 354 read with sec.34. With the
evidence presented at the trial stage, there is insufficient
and inconclusive evidence to show that Shyama
(hereinafter for contention 4 the “accused”) is indeed
guilty of the aforementioned offences and an appeal has
been filed for the review of evidence de novo. The
proceedings against Shyama are violative of the Due
Process of law and are ultra vires to the provisions of
Juvenile Justice (Care and Protection of Children) Act,
2014. Shyama is a minor and lower courts without proper
verification treated him as a major which is against the
juvenile justice system and violative of several rights
conferred to Shyama by constitution. Shyama was an
innocent child in need of care and imposition of such
regressive punishments on him is against the principle of
natural justice. IV.1. THE EVIDENCE ON RECORDS ARE
INSUFFICIENT TO PROVE SHYAMA GUILTY OF OFFENCES
FOR WHICH HE IS CHARGED. It is humbly submitted
before the Hon‟ble court that the accused was a
domestic worker employed by Mr. Batra.72 He is a Child
in need of care and protection as per the provisions of
Section 2(14) (ii) of the JJ act, 2014. The Child Labour
(Prohibition & Regulation) Act, 1986 under schedule I
prohibits the employment of children in domestic works.
Shyama has been employed since past six years as a
domestic worker after he dropped out from sixth
standard when his age was definitely below 14 years. 73
Instead of providing care and protection to

72

¶1Moot Problem. Hari Om Tripathi and Shourya Raj,

Stages of School Education in India,
www.urbanpro.com/a/stages-ofschool-education-in-india.
73

29

Shyama which is the objective of the Juvenile Justice

System as per the preamble of the JJ act, 2014 the lower
courts have imposed regressive sentence on Shyama
which is like adding to the whole lot of injustice already
been caused to Shyama. The petitioner presents a plea of
alibi u/s 11 and 103 of evidence act as he was not present
in city of Brada on the day of crime and went to his
village for which he took 3 days leave from work. 74
Therefore his accusation is invalid as there are no
sufficient evidence to prove his presence 75 at the crime
scene. 76 Rather the Circumstantial evidences strongly
prove the establishment of the plea of alibi.77 The lower
court took into consideration the finger prints of accused,
found on the body of Vanita corroborating them with the
circumstantial evidences as per the section 8, Section 45
and section 114 of the Indiana Evidence Act, 1872. It is
humbly pleaded that since accused was a domestic
worker and did all regular chores of Mr. Batra‟s home.
There are all possible chances of his finger prints being
left on clothes of Vanita or her body. The report of experts
states that finger prints can fast for several days.78 In the
case of Babu Khan v. State of Rajasthan79 and R v.
Buckley80 several factors and measures that have to be
taken care of while recovery and admission of finger
prints are laid for admissibility of finger prints. In the
present case no such measures were taken care off. And
therefore the expert advice presented under Section 45
are not conclusive 81 as they do not exclude any other
possible hypothesis and are not enough to prove the
guilt of the accused beyond reasonable doubt. 82 On the
contrary, the facts so established are very well explainable
on any other hypothesis except that the accused is guilty.
74

¶4 MooT Problem. Central Bureau of Investigation v. V.C.

Shukla, A.I.R. 1998 Cr LJ 1905. 76 Sangappa Nigappa
Malabadi v. State of Maharashtra, A.I.R. 1987 (1) BomCR
576. 77 Dhananjoy Chatterjee v. State of W.B, A.I.R. 1994 2
S.C.C. 220; State of U.P v. Mukunde Singh, A.I.R. 1994 2
S.C.C. 191. 78 Simon Bunter, How long can an identifiable
fingerprint persist, April 2014. 79 Babu Khan v. State of
Rajasthan, A.I.R. 1997 S.C. 2960. 80 R v. Buckley, 1999 163
JP 561. 81 Madan Gopal Kakkad v. Naval Dubey and Anr.,
A.I.R. 1992 3 SCC 204; Emperor v.Fakir Mahomed, A.I.R.
1935 38 BomLR160. 82 Musheer Khan v. State of M.P., A.I.R.
2010 S.C. 762. 75

30

The fact that Shyama shared hatred towards Vanita and

Ravi with Shekhar was an irrelevant consideration as it
was a mere repercussion of tormenting acts of Ravi and
Vanita which is a common human nature. Section 8 of
evidence act makes only those circumstantial evidence
admissible which are essential complements of acts
done 83 so that the acts itself acquire the special
significance. 84 As there is no relevant Nexus between
the fact and the omissions the admission of these
evidences was immaterial.85It is therefore most
respectfully submitted that the Evidence presented is
insufficient to sustain a conviction. IV.2.SHYAMA SHOULD
BE TREATED LIKE A MINOR. It is humbly submitted
before the Hon‟ble court that Shyama dropped out from
sixth standard as per the general analysis and reliance on
the provisions of governments the average age of
students in sixth standard are below 12 years. Shyama has
been working since past 6 years instantly after dropping
from school. Hence the age of Shyama is below 18 as
admitted by Shyama himself. Therefore Shyama should
be treated like a minor.86 As per the Section 94(ii) of the
juvenile justice act, 2014 in case of any doubt that
weather the accused is a child or not the committee or
the board may try to obtain the birth certificate from
School or municipal corporations or by Bone ossification
test or by another technique. Juvenile Justice Rules, 2007
also recommends the same approach.87 As the facts of
the case clearly states there was negligence on the part
of determination of his age as the investigation was only
restricted till municipal authorities. Even if the birth
certificate or other documentary evidence were not
available, Bone ossification test should be used to
determine his age as requested by

83

Sooraj v. State of Kerala, 1994 Cr LJ 1155 (ker); State of

Maharashtra v. Vilas Pandurang, 1999 Cr LJ 1062. Justice J
V Chandrachud, The law of evidence 75 (21 st edition
Ratanlal & Dhirajlal ,Wadhwa & Company). 85 Empress v.
Rama Birapa, (1878) 3 BOM 12, 7. 86 Hari Om Tripathi &
Shourya Raj 87 Juvenile Justice Rules 2007 Rule 12. 84

31

Shyama.88 As, it is a conclusive proof for determination of

age especially in case of juveniles.89 IV.3.THERE WAS
ABUSE OF DUE PROCESS OF LAW. It is humbly
submitted before the Hon‟ble court that the proceedings
were erroneous and are liable to be quashed. As, the
proceedings are violative of several provisions of Juvenile
Justice Act, 2014: The proceedings were erroneous as
violated several principles of law and rights ensured to
Shyama. Section 3(xvi) of the JJ act, 2014 ensure right to
fair hearing and right to review by all persons or bodies,
acting in a judicial capacity under this Act. The
proceedings initiated against Shyama were based on the
presumption of his guilt which violates Section 3(i) of the
Act which states that all the proceedings should be
based on the presumption that the juvenile is an
innocent.90 The similar thought has been laid in the
Beijing Rule 1990. Arguendo: In the provisions of Section
15 and 19 of the JJ Act the juveniles of age 16 – 18 years
could be treated as adult only in case of heinous crimes, if
they are found capable of committing crime and have
sufficient maturity to understand the nature of crime. In
such case the board may refer the case to specially
formed Children Courts in the Session Court having
jurisdiction to try the case.91 The session court found
accused guilty u/s 304, 326 & 354 of IPC which are not
heinous offence and he was sentenced three years of
imprisonment which is invalid as in case of non-heinous
offence no juvenile can be imprisoned but can be sent to
special homes for a maximum period of three years.92 As
per the provisions of juvenile justice Act session court is
not authorized to take cognizance of non-heinous
offences.93 It is further submitted that in non-heinous
offence the case must be referred back to the Board. The
Sentence of Session courtandtherefore, the proceedings
of JJ Board and session court are 88

Vishnu Undrya v. State Of Maharashtra, A.I.R. 2005. Nazir

Hossain Haider v. The State, A.I.R. 1997. 90 Juvenile Justice
Rules, 2007 Chapter 2 Rule 3. 91 Juvenile Justice (Care
and Protection of Children) Act, 2014 Section 18(3). 92
Juvenile Justice (Care and Protection of Children) Act,
2014 Section 18. 93 Juvenile Justice (Care and Protection
of Children) Act, 2014 Section 15 and 18(3). 89

32

violative of the provisions of JJ act, 2014. Section 107 of

the JJ Act, 2014 states that the investigation in case of
juveniles must be conducted by special police formed
under the provisions of the section. In the present no
such measures were taken and hence there was abuse of
rights of the Shyama. The High court refused the plea of
Shyama against the order of Session court which was
erroneous and thus violates his right to appeal in court94
and other fundamental rights guaranteed under part III
of the constitution95 which is against the principle of
natural justice,96 Principle of non-waiver of rights97 and
Principle of Right to be heard.98 The High court
sentenced Shyama for life imprisonment which is invalid
as per the provisions of Section 21 Juvenile Justice Act,
2014 as it only permits life imprisonment with the
possibility of release. The High Court while acting in
appellate jurisdiction relied majorly on the erroneous
findings of the trail court to arrive at the conviction of the
accused and rejected his plea for bone ossification test.
Which violates his right to fair hearing guaranteed under
the constitution.99 The high court doesn‟t looks the facts
and evidence of the case de novo.100 The Universal
Declaration of Human Rights provides for “full equality to
a fair and public hearing by an independent and
impartial tribunal.” 101 The European Convention on
Human Rights102 and International Covenant for
Protection of Civil and Political Rights103 also provides for
the same.

94

Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L.

Ed. 2d 702 [1988]. Delhi Transport Corporation v. DTC
Mazdoor Union, A.I.R. 1990 S.C.R. 1 142; Maneka Gandhi v.
Union of India, A.I.R. 1978 597; Hussainara Khatoon v.
Home Secretary State of Bihar, A.I.R. 1979 S.C.R. 532;
Nandini Satpathy v. P.L. Dani, A.I.R. 1978 1025; 96 Juvenile
Justice (Care and Protection of Children) Act, 2014
Section 3 (xvi). 97 Juvenile Justice (Care and Protection of
Children) Act, 2014 Section (ix). 98 Juvenile Justice Rules,
2007 Clause III Rule 3. 99 Constitution of India Article 21.
100 State Of Rajasthan v. N.K, A.I.R. 2000 S.C.W. 1407;R v.
Sharp, 1988 1 All ER 65, HL. 101 Universal Declaration of
Human Rights Article 10. 102 European Convention on
Human Rights Article 15. 103 International Covenant for
Protection of Civil and Political Rights Article 6. 95

33

It is humbly submitted to this Hon‟ble court that if the

decision of lower courts is allowed to stand, then it would
not only be an infringement on the very principles of
natural justice, but also an infringement of Shyama‟s
rights as a child and hence abridge his right to have a fair
trial.

34

PRAYER Wherefore In The Light Of The Issues Raised,

Argument Advanced, Reasons Given And Authorities
Cited, This Hon‟ble Court May Be Graciously Pleased To:
TO HOLD THAT THE SPECIAL LEAVE PETITION SHOULD
BE ALLOWED. TO DIRECT ORDER THE ACQUITTAL OF
SHYAMA AND SHEKHAR. FRESH INVESTIGATION AND
EXAMINATION OF RAM MANOHAR. DETERMINATION OF
THE AGE OF SHYAMA BY THE COMPETENT AUTHORITY.
TO SET ASIDE THE ORDER PASSED BY THE HIGH COURT,
SESSION COURT AND JUVENILE BOARD.
MISCELLANEOUS AND ANY OTHER RELIEF THAT THIS
HON‟BLE COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE ALL OF WHICH IS RESPECTFULLY
SUBMITTED. Sd/……………………………… COUNSELS FOR THE
PETITIONER

35

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