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PETITIONER
Versus
RESPONDENT
UNION OF INDIANA
SHYAMA
Versus
UNION OF INDIANA
.RESPONDENT
TABLE OF CONTENTS
LIST OF ABBREVIATIONS..4
INDEX OF AUTHORITIES6
STATEMENT OF JURISDICTION...9
STATEMENT OF FACTS.....10
ISSUES RAISED13
SUMMARY OF ARGUMENTS...14
ARGUMENTS ADVANCED........17
1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS
COURT IS MAINTAINABLE OR NOT17
1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND
SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE........18
1.1.1
THERE
WAS
SUBSTANTIAL
MEDICAL
EVIDENCE
AGAINST
SHYAMA.21
2.1.2
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LIST OF ABBREVIATIONS
AIR
All
Bom. LR
Cal
CBI
Cri LJ / Cr LJ
Cr.P.C.
Del.
Delhi
DLR
DLT
Edn.
Edition
Guj.
Gujarat
JJA
ILR
IPC
IC
Indian Cases
JT
Judgment Today
Mad
Madras
NCRB
Ori
Orissa
P&H
Pat
Patna
Raj
Rajasthan
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RCR
SC
Supreme Court
SCC
SCJ
SCR
Sec.
Section
U.O.I.
Union Of India
v.
Versus
Page | 5
INDEX OF AUTHORITIES
CASES
Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC).
State of U.P. v. Anil Singh, AIR 1988 SC 1998.
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 223.
Hem Raj v. The State of Ajmer, 1954 SCR 380.
State of H. P. v. Kailash Chand Mahajan, (1992) AIR 1277 (SC).
P.S.R. Sadhanantham v. Arunachalm & Ors. , (1980) 3 SCC 141
Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC).
Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., (1999) 8 SCC 1 (SC).
Jamshed Hormsuji Wadia v. Board of Trustees, Port of Mumbai AIR 2004 SC 1815.
Parichat v. State of Madhya Pradesh, AIR 1972 SC 535.
Dhansai v. State of Orissa, AIR 1969 Ori 105.
State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC).
Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974 SC 514.
Sharif Ahmad Alias Achhan, (1956) 2 All 188.
Bhopal Singh v. State of Rajasthan AIR 1968 Raj 305.
Maqsoodan v. State of UP, 1983 Cr LJ 218 (SC).
Hardev Singh v. State of Punjab, AIR 1979 SC 179.
Union of India & Ors v. Su Pandurang Tukia and Bhillia v. State of Hyderabad, AIR
1955 SC 331.
Akanda v. Emperor, AIR 1944 Cal 339.
State of M.P v. Desh Raj, (2004) 13 SCC 199.
Idris Bhai Daud Bhai v. State of Gujarat, 2003 SCC 277.
Union of India & Ors v. Sunil Kumar Sarkar, (2001) 3 SCC 414.
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Ved Kumari, Juvenile Justice System in India, Oxford University Press, New Delhi,
2004.
S.K.A Naqvi & Sharat Tripathi, R. N. Choudhrys Law Relating to Juvenile Justice in
India, Orient Publishing Company, New Delhi, 3rd Edn. 2012.
STATUTES
Indian Penal Code, 1860.
The Juvenile Justice (Care and Protection of Children) Act. 2015.
The Juvenile Justice (Care and Protection of Children) Rules, 2007.
The Constitution of India, 1949.
TREATIES
United Nations Convention on the Rights of the Child, 1990.
LEXICONS
Garner Bryana, Blacks law Dictionary, 7th Edn.1981, West Group.
Collins Gem English Thesaurus, 8th Edn. 2016. Collins.
Catherine Soanes, Oxford Dictionary Thesaurus, 40th Edn. 2006, Oxford University
Press.
LEGAL DATABASES
Manupatra
SCC Online
Judis
Indian Kanoon
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STATEMENT OF JURISDICTION
The Petitioners have approached the Hon'ble Supreme Court of Indiana under Article 136 of
the Constitution of Indiana. The Respondents reserve the right to contest the jurisdiction of this
Honble Court. The article 136 of Constitution of Indiana reads as hereunder:
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STATEMENT OF FACTS
For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are
summarized as follows:
BACKGROUND
1. Shyama is a poor boy who used to live in a slum in the outskirts of the city of Brada in
the Republic of Indiana. He studied in a government funded school named, Shanti
Niketan School up to Sixth Standard but then he dropped out of school and since then,
he has been in the employment of Mr. R. Batra. Shyama lives in the quarter provided
by Mr. Batra. It has been 6 years since his employment.
2. Mr. R. Batra had two children, a boy named Ravi, aged 18 years and a girl named
Vanita, aged 16 years. Shekhar Saxena, aged 17 years and 7 months is the Son of Mr.
Saxena. Shekhar is the neighbor of Mr. Batra.
3. Shekhar and Ravi had hatred for each other since childhood. In light of this both had a
heated quarrel. One day Shekhar was playing soccer in the park and Ravi & Vanita
were jogging at the same time. While playing soccer, the football got hit over Vanitas
head and she sustained some minor injuries. As a result, Ravi started verbally abusing
Shekhar and this led to a heated quarrel between the two where Ravi gave a blow to
Shekhar. Soon, the quarrel was resolved by one of the neighbors.
4. Both, Ravi and Vanita, used to insult Shyama in a condescending manner. Shyama was
also abused and tormented in public. One day, Shekhar saw this and talked to Shyama.
Both started sharing the hatred for Ravi and Vanita.
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10. On 12th June, 2015 Shekhars case was remanded back to the JB. However, Shyamas
submissions were rejected due to lack of evidence of age as his Birth Certificate
provided by the Municipality could not be discovered. Shyamas assertion to carry out
a Bone Test or any other allied test for the determination of his age was also rejected
by the court due to inconclusiveness of these kinds of tests.
11. On 28th July, 2015, Shyama was found guilty u/s 304, 326, 354 read with S.34 of IPC,
1860. He was sentenced to imprisonment of 3 years. Shekhar was found guilty u/s 304,
326, 354 read with S. 34 of IPC, 1860 on 4th August, 2015 and he was sent to a special
home for a maximum period of 3 years by the JB. Shekhar appealed to the Session court
against the judgement and order passed by the Juvenile Board. However, the appeal
was dismissed as the case had been proved beyond reasonable doubt before the Juvenile
Board.
12. Both Shekhar and Shyama appealed to the High Court. Shyama filed an appeal against
the order of conviction since the Court of Session had no jurisdiction to try the case as
he was a minor. He also raised question regarding the justification of the court in
rejecting the bone test. Whereas, Shekhar filed an appeal for the quashing of the order
of conviction of the Court. Both the appeals were rejected by the High Court as both
were capax of committing the crime and both had common consensus. A contention
was raised in the cross appeal filed by prosecution against Shyama & Shekhar that both
the culprits should be convicted under S.302 instead of S.304. This was accepted by the
high court and Shyama was sentenced was life imprisonment and Shekhar was
sentenced for imprisonment of 10 years.
13. On 11th January, 2016, both the accused have petitioned before this Honble Apex Court
against the order of High Court and the Sessions Court. The matter is admitted and
listed for hearing.
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ISSUES RAISED
4. WHETHER
THE
ACT
IS
IN
CONTRAVENTION
WITH
THE
Page | 13
SUMMARY OF ARGUMENTS
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The Sessions Court found Shyama guilty of the offences in light of the circumstantial
evidences which were found against him. According to the Medical Report, the fingerprints
of Shyama were found on Vanitas body which led the court upon such a decision. The
second accused in the present case i.e. Shekhar was found guilty by the Sessions Court
upon the statement of Ram Manohar. He is the same person who saw Shekhar escaping out
of the basement, where the whole crime took place, at the night of the crime.
In this situation it can be well ascertained that, not only his appearance was considered also
his acts were considered too. Hence, in the present case the accused was well aware of the
circumstances of his delinquent act and hence he was capax of committing such a heinous
offence. Its further contended before this Honble Court that the orders passes by both the
lower courts were well justified and there is no need to waste the time of the court in such
vexatious and false contentions.
3. WHETHER MERE PRESENCE CAN BE THE ONLY GROUND FOR SEEKING
ACQUITTAL
It is contented before this honorable Court that the decision passed by the Honorable High
Court is a reasoned decision. Also, it is further contended that Shekhar was not charged
merely on the ground of presence alone. It is humbly submitted before this honorable Court
that, his plea of merely present at the crime scene is wrong and denied. The accused was
present at the crime scene in pursuance of a pre-planned act of taking revenge. It is his
hatred and animosity due to which he committed such a heinous offence. It is pertinent to
mention again that, Shekhar became so ambitious with the hatred against Ravi and Vanita
that, he started discussing the same with their servant.
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The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly
defined and classified offences as petty, serious and heinous, and defined differentiated
processes for each category. The present act which has been amended is very well in
consonance with the Articles of the Constitution of Indiana. The Republic of Indiana is a
signatory to various conventions which protect the rights of Children.
The United Nations Convention on Rights of Child was ratified by the Republic of Indiana
in 1992 and the 2000 Act was consequently brought in to adhere to the standards set by the
Convention. The countries who are a signatory to the convention have certain international
commitments. However, by only becoming a mere signatory to the convention does not
make any country legally bound to follow the provisions of the convention. It is only when
then country has ratified such provisions, it becomes legally bound to abide by them.
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ARGUMENTS ADVANCED
Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC).
Page | 17
M.P Jain, Indian Constitutional Law, LexisNexis, Nagpur, 7th Edn. 2014.
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 223.
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, (1955) AIR 65 (SC).
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NO
IRREGULARITY
OF
PROCEDURE
OR
VIOLATION
OF
10
11
12
Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., (1999) 8 SCC 1 (SC).
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dismissed. This court had laid down the test which says if the general principles to be
applied in determining the question of those principles the question would not be a
substantial question of law.
It might involve question of law but not substantial question of law. The present case
does not involve such substantial question of law.
In Jamshed Hormsuji Wadia v. Board of Trustees, Port of Mumbai13 the court
emphasized that, the very conferment of the discretionary power defies any attempt at
exhaustive definition of power. The power is permitted to be invoked not in a routine
fashion but in very exceptional circumstances as when a question of law of general
public importance arises or a decision sought to be impugned before the Supreme Court
shocks the conscience. This overriding and exceptional power has been vested in the
Supreme Court to be exercised sparingly and only in the furtherance of cause of justice
in the Supreme Court in exceptional cases only when special circumstances are shown
to exist.
13
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2. WHETHER THE ORDER OF THE SESSIONS COURT AND HIGH COURT WAS
VALID OR NOT.
It is humbly submitted before this Honble Supreme Court that the Sessions Court has
declared both, Shyama and Shekhar, as the accused in the light of the heinous acts
committed by them. This order of conviction of both the persons accused has also been
upheld by the Honble High Court. The Honble High Court raised the sentence of both the
persons convicted. Shyama was ordered to be sentenced for life imprisonment and Shekhar
was sentenced for a period of 10 years imprisonment14. This order of conviction passed by
the Sessions Court and the sentence increased by the High Court are well justified.
14
15
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below having been recorded against the Appellant holding in clear terms that sign
of commission of rape on the victim by the Appellant stood proved by medical
evidence beyond reasonable doubt. In the present case, the fingerprints of
Shyama on the body of Vanita were enough to prove that the heinous offence was
committed by him. There was substantial circumstantial evidence before the
Sessions Court against Shyama which led to his conviction.
2.1.2
16
Honble Justice M.L Singhal, Medical Evidence and its use in trial of cases, J.T.R.I. Journal, Issue 3,
September, 1995.
17
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evidence makes the ocular testimony improbable, that becomes a relevant factor
in the process of the evaluation of evidence18. Hence, the Sessions Court was
justified in convicting both the accused for committing such heinous offences.
18
19
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duty of the court to accord the benefit to a juvenile, provided he is one, to give such
benefit to one who in fact is not a juvenile may cause injustice to the victim20
In this situation it can be well ascertained that, not only his appearance was considered
also his acts were considered too. Hence, in the present case the accused was well aware
of the circumstances of his delinquent act and hence he was capax of committing such
a heinous offence. Its further contended before this Honble Court that the orders
passes by both the lower courts were well justified and there is no need to waste the
time of the court in such vexatious and false contentions.
20
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It is contended by the respondents that Shekhar had worked in furtherance of the common
intention to commit the offences against Ravi and Vanita. In order to attain his common
final object of taking revenge from Ravi against the long lasting animosity.
The first element is well proved. Several persons contended here are Raju, Ranveer,
Shyama and Shekhar. In furtherance of the common intention, several persons must have
21
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done several acts which together constitute an offense. In such a situation S.34 provides for
each to be liable for the entire act as a whole22.
22
23
24
25
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defined as the fixed direction of the mind to a particular object, or a termination to act
in a particular manner. So, the intention of the person can be gathered from the action of
the person26
Shekhar had animosity since childhood with Ravi. Shekhar and Shyama had shared the
hatred for Ravi and Vanita. Which is enough to show that Shekhar had intention to take
revenge from Ravi and Vanita by any means.
Common intention comes into being prior to the commission of the act in point of time27.
Therefore, there needs to be a prior plan to commit a crime. This pre-arranged plan
however need not be an elaborate one28. A mere existence of a pre-arranged plan that
the offense be conducted is enough to satisfy this element. In most circumstances, proof
of common intention has to be inferred from the act or conduct or other relevant
circumstances of the case at hand29.
Moreover, the intention to kill is not required in every case, mere knowledge that natural
and probable consequences of an act would be death will suffice for a conviction under
s. 302 of IPC30. The common intention must be to commit the particular crime, though
the actual crime may be conducted by anyone sharing the common intention31.
Therefore, it is contended by the prosecution that while the act of murder was conducted
in furtherance of the common intention between the two accused which can be inferred
26
27
28
29
30
31
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from their frequent discussions on what it would mean if Ravi were to die one day, a
common intention to commit the offense of murder.
The principle of Common Intention embodies the concept of Joint Liability and says
that all those persons who have committed a crime with a common intention and have
acted while keeping in mind the common intention, should be liable for the acts of
another done in common intention as if the act is done by the person alone32.
The common intention implies a prior concert, that is, a prior meeting of minds and
participation of all the members of the group in the execution of that plan33. Common
intention also means a desire to commit a criminal act without any contemplation of
offence34. It deals with doing of several acts, similar or diverse in furtherance of
common intention35.
Direct proof of common intention is seldom therefore intention could be inferred from
circumstances. The court must draw inferences based on the premises presented by the
Prosecution36. In the immediate matter, the circumstances undeniably point towards
existence of a pre-arranged plan on part of the accused to make the murder look sudden
but natural and thus are guilty of the aforementioned offences.
32
Union of India & Ors v. Sunil Kumar Sarkar, (2001) 3 SCC 414.
33
34
35
36
Page | 28
As per para 5 of the fact sheet it is mentioned that there were four persons, two of them
were tightly holding Vanita and other two were trying to outrage her modesty. Even if,
Shekhar was holding Vanita cannot be the ground to save him from the crime that he
has committed.
It is humbly submitted before this honorable Court that, his plea of merely present at
the crime scene is wrong and denied. The accused was present at the crime scene in
pursuance of a pre-planned act of taking revenge. It is his hatred and animosity due to
which he committed such a heinous offence. It is pertinent to mention again that,
Shekhar became so ambitious with the hatred against Ravi and Vanita that, he started
discussing the same with their servant.
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The new Act establishes a more robust, effective and responsive legislative framework for
children requiring care and protection, as well as children in conflict with law. Its
provisions responded to the perceptions, articulated by a wide cross-section of society for
the need to have an effective and strengthened system of administration of juvenile justice,
care and protection37.
The Supreme Court strongly emphasized for a development in the current legislation of
relating to juvenile offender in the case of Gaurav Kumar v. The State of Haryana38. The
court observed that,
The rate of crime and the nature of crime in which the juvenile are getting involved for
which the Union of India and the State Governments are compelled to file cases before this
Court to which the learned Attorney General does not disagree, have increased. A time has
come to think of an effective law to deal with the situation, we would request the learned
Attorney General to bring it to the notice of the concerned authorities so that the relevant
37
Amendments to the Juvenile Justice (Care and Protection of Children) Bill, Press Information Bureau, 2015.
38
Page | 30
provisions under the Act can be re-looked, re-scrutinize and re-visited, at least in respect of
offences which are heinous in nature.
The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly
defined and classified offences as petty, serious and heinous, and defined differentiated
processes for each category. Keeping in view the increasing number of serious offences
being committed by persons in the age group of 16-18 years and recognizing the rights of
the victims as being equally important as the rights of juveniles, special provisions have
been made in the new Act to tackle heinous offences committed by individuals in this age
group39.
In recent years, there has been a spurt in criminal activities by adults, but not so by
juveniles, as the materials produced before us show40. In the case of State of Tamil Nadu
Vs. K. Shyam Sunder41, the court emphasized that,
Merely because the law causes hardships or sometimes results in adverse consequences,
it cannot be held to be ultra vires the Constitution, nor can it be struck down.
39
Press Note of Union Ministry of Women and Child Development, Press Information Bureau, 2014.
40
41
Page | 31
against a child on any ground including sex, caste, ethnicity, place of birth, disability
and equality of access, opportunity and treatment to every child42.
Therefore, the Act. is in consonance with Article 15 which prohibits discrimination on
grounds of religion, race, caste, sex or place of birth. The procedures for treatment of
children who commit heinous crimes in the age group of 16 to 18 years are well laid
down in the Act. There is no arbitrariness in the current Act. with regard to procedure.
So, there is no violation of article 21 of the Constitution which provides for right to life
and personal liberty.
Elaborate statistics have been laid before us to show the extent of serious crimes
committed by juveniles and the increase in the rate of such crimes 43. Also, if mature
and cognitive individuals are given the armour of a Special Law allowing them to
commit offences under the Indian Penal Code without any liability, they would breed
within themselves enraged criminals with psychotic tendencies. Fake birth certificates
would throng and act as a weapon of defence against prosecution for their wrongdoings.
This is against the principles of natural justice and against the nature of an intelligent
civilized society.
The ultimate aim of juvenile justice system is to rehabilitate the offender rather than to
exterminate him from the society. However, a person capable and mature to understand
his actions and its consequences, while committing the depravity of sin, if shields
himself under the false sheath of law, it does infringe jus naturale.
42
Section 3(x), Juvenile Justice (Care and Protection of Children) Act. 2015 Principle of Equality and Non-
Discrimination.
43
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The Act. Of 2015 maintains this aim and seeks to improve implementation and
procedural delays experienced by the 2000 Act. The UNCRC states that signatory
countries should treat every child under the age of 18 years in the same manner and not
try them as adults. However, many other countries who have also ratified the
Convention try juveniles as adults, in case of certain crimes. These countries include
the UK, France, Germany, etc. The United States is not a signatory to the UNCRC and
also treats juveniles as adults in case of certain crimes.
The provisions of various countries cannot be overlooked while dealing with such a
sensitive issue. In United Kingdom, Extended custodial sentences are given to young
44
Ibid.
Page | 33
persons if their crime is so serious that no other alternative is suitable, or if the young
person is a habitual offender, or if the Judge thinks the person is a risk to public safety.
In United States of America, the majority age is 18 years, but persons older than 14 years
may be tried as adults if they commit serious crimes (rape, robbery, murder etc.). The
state of New York pegs the age of juvenility at 16 years, and permits the prosecution of
persons aged between 13-16 years as adults in case of serious crimes.
In Nepal, the minimum age of criminal responsibility is 10 years. A child is a person
below 16 years. A person between 16-18 years are charged and tried as adults under the
judicial system of Nepal.
Also, Countries like U.K. Canada and USA have departed from the obligations under
the UN Convention. The countries who are a signatory to the convention have certain
international commitments. However, by only becoming a mere signatory to the
convention does not make any country legally bound to follow the provisions of the
convention. It is only when then country has ratified such provisions, it becomes legally
bound to abide by them.
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PRAYER
In the light of the issues raised, arguments advanced and authorities cited, may this Honble
Court be pleased to:
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondent as in duty bound, shall humbly pray.
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