3rd MANIPAL RANKA NATIONAL MOOT COURT COMPETITION, 2017

TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................... 2

INDEX OF AUTHORITIES...................................................................................................... 3

STATEMENT OF JURISDICTION.......................................................................................... 5

STATEMENTS OF FACTS ...................................................................................................... 6

ISSUES RAISED ....................................................................................................................... 8

SUMMARY OF ARGUMENTS ............................................................................................... 9

ARGUMENTS ADVANCED ................................................................................................. 11

1. WHETHER THE EVIDENCE SUPPLIED BY THE PROSECUTION ARE

ADMISSIBLE AND ACCEPTABLE IN THE COURT TO PROVE GUILT. ...................... 11

1.1. There was discrepancy and delay in FIR. ..................................................................... 11

1.1.1.There was delay in filing the FIR ............................................................................ 11

1.2.Materials seized and recovered from the accused and through their statements do not
associate with the appellants to prove guilt. ......................................................................... 12

2. WHETHER THE DYING DECLARATION IS ADMISSIBLE AND ACCEPTABLE IN

THE COURT. .......................................................................................................................... 14

3. WHETHER THE APPELLANTS COMMITTED THE OFFENCE OF CONSPIRACY

AND DACOITY ...................................................................................................................... 16

3.1 There was no criminal conspiracy amongst the appellants ............................................ 16

3.1.1. Circumstantial evidence is unreliable. ................................................................... 16

3.2. The appellants did not commit the offence of dacoity .................................................. 17

4. WHETHER THE ACCUSED DINESH, BEING A MINOR, IS LIABLE FOR

CONVICTION. ........................................................................................................................ 19

4.1 .The Act is not violate of any Constitutional or Criminal Law Provisions ............... 19

4.2. The Minimum Age of Criminal Responsibility is fixed and is in consonance with the
International Commitments .................................................................................................. 21

PRAYER .................................................................................................................................. 23

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LIST OF ABBREVIATIONS

S.NO. ABBREVIATIONS EXPANSION

1. Hon’ble Honorable
2. HC High court
3. HC Supreme court
4. FIR First information report
5. CrLJ Criminal law journal
6. Ors. Others
7. v. Versus
8. IPC Indian penal code
9. RJ Rajasthan
10. TN Tamil nadu
11. PW Prosecution witness
12. HP Himachal pradesh
13. AIR All indian report
14. SCR Supreme court report
15. SCC Supreme court cases
16. WB West Bengal
17. Cal Calcutta
18. LR Law report
19. AP Andhra Pradesh
20. MP Madhya Pradesh
21. Anr. Another
22. Supp supplementary
23. UP Uttar Pradesh
24. CRC
25. CLR Criminal law report
26. Art. Article

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INDEX OF AUTHORITIES
CASES

1. Jitendra Singh @ Babboo Singh and Anr. v. State of U.P. (2010) 13 SCC
523, DayaNand v. State of Haryana................................................................................. 20
2. Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489. ...... 21
3. AbuzarHussain v. State of West Bengal, (2012) 10 SCC 489. ........................................ 20
4. Amar Singh v. State of Madhya Pradesh 1996 Cr LJ (MP) 1582.................................... 14
5. Amit Singh v. State of Maharashtra, (2011) 13 SCC 744. .............................................. 21
6. AvishekGoenka v. Union of India (2012) 5 SCC 321. .................................................... 20
7. Bhagat Ram v. State of H.P ,AIR 1983 SC 454, 1983 lablc 662, (1983) IILLJ 1 SC,
1988.................................................................................................................................. 11
8. Bharat Bhushanvs State Of H.P on 26 April, 2013.......................................................... 20
9. Chamberlin v. R, (1984) 153 CLR 521............................................................................ 16
10. Dahyabhai chhaganbhai thakker v. State Of Gujarat, AIR 1964 SC 1563. ..................... 15
11. Hardeo Singh v. State of Bihar &ors., (2000) Cr. LJ 2978.......................................... 8, 16
12. Hari Ram v. State of Rajasthan (2009) 13 SCC 211........................................................ 20
13. Jagannath Mishra v. State of Orissa, 1974 Cut LT 1253; ................................................ 15
14. Jagannath Mishra v. State of Orissa, 1974 Cut LT 1253; Tejichand v. State of UP, ...... 16
15. Koli Chunilal Savji& Another v. State of Gujarat, 1999 (9) SCC 562 ............................ 13
16. Kundula Bala Subrahmanyam v. State of AP ,(1993) ..................................................... 13
17. Lakhan Lal vs State Of Bihar on 14 January, 2011 ......................................................... 22
18. M. Nagaraj v. Union of India, AIR 2007 SC 71 .............................................................. 19
19. Madhu v. State of Kerala, Criminal Appeal No. 522 of 2006. ........................................ 12
20. Niranjan das & ors. V. girdharidas&anr., 68(1989) ........................................................ 18
21. P. Rosamma v. State of Andhra Pradesh ,1999 (7) SC 695 ............................................. 14
22. Padma Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79; Chattar Singh v. .... 16
23. PulukuriKottaya v. Emperor, (1946) 49 Bom LR 508..................................................... 12
24. Raju and Anr. v. State of Haryana (2010) 3 SCC 235, Dharambir v. State (NCT of
Delhi) and Anr ................................................................................................................. 20
25. Ram Manorathv State Of U.P ,(1981) SCC (2) 654 ....................................................... 14
26. Ramdas& Ors. v. State of Maharashtra , 7 November, 2006........................................... 11
27. Rasheed Beg v. State of Madhya Pradesh ,1974 (4) SCC 264 ........................................ 14

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28. Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116. ................................................ 19
29. ShambuGowala v. State of West Bengal 2000 CrLJ 1602 (Cal). .................................... 12
30. ShyamBehari v. State Of UP, AIR 1956 SC 320 ............................................................. 17
31. Smt. Laxmi v. Om Prakash & Ors ,(2001) 6 SCC 118 .................................................... 15
32. Smt. Paniben v. State of Gujarat 1992 crilj 2919 ............................................................ 14
33. State of Rajasthan V. Om Prakash,june 13 ,2007, SC ..................................................... 10
34. State v. Siddhartha Vashisht, (2001) Cr. LJ 2404........................................................ 9, 16
35. Thuiia Kali v. The State of Tamil Nadu 1973 AIR 501, 1972 SCR (3) 622 ................... 10

STATUES

1. Indian Penal Code,1860

2. Indian Evidence Act, 1872
3. Constitution of India,1950
4. Juvenile Justice Act,2000

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STATEMENT OF JURISDICTION

The appellant has approached this Hon’ble Court under Article 134(1) of the Constitution of
India, 1950, that reads:

134. Appellate jurisdiction of Supreme Court in regard to criminal matters.-

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court-has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has
withdrawn for trial before itself any case from any court subordinate to its authority and has
in such trial convicted the accused person and sentenced him to death; or © certifies under
Article 134A that the case is a fit one for appeal to the Supreme Court:

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STATEMENTS OF FACTS

1. The cold evening of Delhi on 16th December, 2015 the twenty two year medico namely

Sunita, who had gone with her friend Suneel, a medico, to watch a film at EP, while returning
for the girls hostel was standing at Jawahar Circle. A classic Car ‘Innova’ 7seater, with all
gadgets, bar, pillows and CC TV Camera etc. driven by a commerce graduate Shri Naveen
along with his three co-students named Ramesh, Suresh and Dinesh (minor) stopped and
offered them lift to drop at the girls hostel on Jawahar Lal Nehru Marg, which was readily
accepted. She got prey to the savage lust of this gang of four, who threw Suneel in a dense
forest beyond Jagatpura after robbing him and giving threats of murder, where he became
unconscious, was naked and all the four one by one assaulted her in the Car. Her private parts
were ruptured to fulfill their pervert sexual appetite, unthinkable and sadistic pleasure. The
attitude, perception, the beastial proclivity, inconceivable self-obsession and individual
centralism of the four made the young lady to suffer immense trauma and, in the ultimate
eventuate, the life-spark that moves the bodily frame got extinguished in spite of availing of
all the possible treatment that the medical world could provide. Her uterus, vagina and other
parts were damaged by iron-rod. She was thrown out of the Car naked. The death took place
at a hospital in IIMS, New Delhi where she had been taken to with the hope that her life
could be saved.
2. Shri Suneel (PW-1) survived. A motor cycle arrived and the said man Shri Raj Kumar (PW-
72) gave the shirt and contacted control room. The PCR Van took him to SMS Hospital for
treatment. Sunita was searched by the police was found unconscious and naked, was provided
with clothes and was carried to SMS Hospital and later to New Delhi.
3. In depth investigation was continuously made and to bring the charge, modern and
progressive scientific methods were adopted. The Innova Car No. RJ-14c-47was seized with
iron rod, whisky bottles and glasses and CC TV footage. The accused persons were arrested.
Prosecutorix’s and Suneel’s mobiles were recovered along with a lady wrist watch make
Sonata, her stained clothes and Rs. 1,000/- robbed from (PW-1). After arrest all the accused
were medically examined. The MLCs of all the first three accused show various injuries on
their person, the struggle marks. Dying declaration of the deceased was also recorded in SMS
Hospital. DNA tests were done. FIR was filed on 20.12.2015 by (PW-1), which was handed
over to S.I. Pratibha Sharma (PW-80) for investigation. Charge sheet filed on 3.1.2016 under

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sections 376(2)(g), 302, 120-B, 377, 365, 366, 396, 397, 307, 412, 201 and 34 of IPC and
Sections 354(3) and 235(2) of Cr. P.C
4. Learned Session’s Judge vide judgment dated 10.09.2016 convicted all the accused persons
under section 120B IPC for the offence of criminal conspiracy; under Section 365 / 366 IPC
read with Section 120B IPC for abducting the victims with an intention to force the
prosecutrix to illicit intercourse, under Section 307 IPC read with Section 120B for
attempting to kill PW-1, the Informant, under Section 376(2)(g) IPC for committing gang
rape with the prosecutrix in pursuance of their conspiracy; under Section 377 IPC read with
Section 120B IPC, for committing unnatural offence with the prosecutrix; under Section 302
IPC read with Section 120B IPC for committing murder of the helpless prosecutrix; under
Section 395 IPC for conjointly committing dacoity in pursuance of the aforesaid conspiracy,
under Section 397 IPC read with Section 120B IPC for the use of iron rod and for attempting
to kill PW-1 at the time OF COMMITTING ROBBERY; UNDER Section 201 IPC read with
Section 120B IPC for destroying of evidence and under Section 412 IPC for the offence of
being individually found in possession of the stolen property which they all knew was a
stolen booty of dacoity committed by them.
5. The High Court vide judgment dated 13.3.2017, affirmed the conviction and confirmed the
death penalty imposed upon the accused by expressing the opinion that under the facts and
circumstances of the case, imposition of death penalty awarded by the trial court deserved to
be confirmed in respect of all the four convicts.
6. Criminal appeals were filed before the Supreme Court by all the convicts,

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ISSUES RAISED

1. WHETHER THE EVIDENCE SUPPLIED BY THE PROSECUTION ARE

ADMISSIBLE AND ACCEPTABLE IN THE COURT TO PROVE GUILT.

2. WHETHER THE DYING DECLARATION IS ADMISSIBLE AND ACCEPTABLE

IN THE COURT.

3. WHETHER THE APPELLANTS COMMITTED THE OFFENCE OF

CONSPIRACY AND DACOITY.

4. WHETHER THE ACCUSED DINESH, BEING A MINOR, IS LIABLE FOR

CONVICTION.

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SUMMARY OF ARGUMENTS

1. WHETHER THE EVIDENCE SUPPLIED BY THE PROSECUTION ARE ADMISSIBLE

AND ACCEPTABLE IN THE COURT TO PROVE GUILT.
It is humbly submitted by the respondents that four days delay in filing the FIR puts a
question on the credibility of the FIR.

Recovery of items on record cannot be taken aid of for any purpose since the items seized
have no connection with the crime and a contrived version has been projected in court.
Section 27 of the Evidence Act has become a powerful weapon in the hands of the
prosecution to rope in any citizen.

2. WHETHER THE DYING DECLARATION IS ADMISSIBLE AND ACCEPTABLE

IN THE COURT.

It is contended that the dying declaration made by prosecutrix severely lacks in this crucial
area as it clearly fails to register the cause of her death or the circumstances leading to her
death. The present dying declaration made by Prosecutrix cannot be relied upon as there is no
evidence as to whether she was in a fit state of mind at the time of making the dying
declaration. In the absence of medical certification that the injured was in a fit state of mind
at the time of making the declaration, it would be very much risky to accept the subjective
satisfaction of a Judge who believed that the injured was in a fit state of mind at the time of
making a declaration. Therefore the dying declaration could not have been accepted by the
court to form the sole basis of conviction.

3. WHETHER THE APPELLANTS COMMITTED THE OFFENCE OF

CONSPIRACY AND DACOITY

It is submitted that the respondents are not guilty for the crime of criminal conspiracy as there
has been no agreement to do such illegal act and also there has been no establishment of
Mens Rea to prove the respondents guilty of beyond reasonable doubt, The charge of
conspiracy cannot be merely made on the basis of inferences and has to be backed by the
cogent evidence to show1 that there was meeting of minds for commission of illegal act or to
achieve a particular object.2It is humbly contended before this Hon’ble Court that the

1
Hardeo Singh v. State of Bihar &ors., (2000) Cr. LJ 2978.
2
State v. Siddhartha Vashisht, (2001) Cr. LJ 2404.

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appellants are not guilty of the offence under Sec. 396 of the IPC, 1860. In the matter at hand,
they have been wrongfully convicted of dacoity by the District Court and the same was
confirmed by the Hon’ble High Court.

4. WHETHER THE ACCUSED DINESH, BEING A MINOR, IS LIABLE FOR

CONVICTION.

It is submitted that the legislature has adopted the age of 18 as the dividing line between
juveniles and adults and such a decision is constitutionally permissible, so the enquiry from
courts must come to an end. The juvenile here has an undisputed age of 17 years. This age of
17 years has constitutional relevance to protect the interest of juveniles from the Criminal
liability under the IPC,1860.

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ARGUMENTS ADVANCED

1. WHETHER THE EVIDENCE SUPPLIED BY THE PROSECUTION ARE

ADMISSIBLE AND ACCEPTABLE IN THE COURT TO PROVE GUILT.

1.1. There was discrepancy and delay in FIR.

1.1.1.There was delay in filing the FIR

1. It is humbly submitted before the court that there was delay in F.I.R which ultimately lead
to the tampering and change in the FIR.
2. Delay in lodging the first information report quite often results in embellishment which is
a creature of afterthought, on account of delay the report riot only gets bereft of the
advantage of spontaneity; danger creeps in of the introduction of colored version,
exaggerated account or concocted story as a result of deliberation and consultation.
3. In State of RJ v. Om Prakash3 the Hon’ble SC decided that there was delay ofnearly 26
hours in lodging the FIR. The offence is alleged to have taken place at about 9 a.m. The
FIR was registered at about 11.30 a.m. on the next day. It was contended by
Mr.Bachawat, Learned Counsel for the respondent that this delay had assumed
importance and was fatal particularly when the brother of the prosecutrix, namely, Mam
Raj (PW-6) was admittedly at the house. The delay, accordingto the counsel, has resulted
in embellishments.
4. In Thuiia Kali v. The State of TN,4 it was held that the delay in lodging the FIR quite often
results in embellishment as a result of afterthought. On account of delay, the report not
only gets bereft of the advantage of spontaneity, but also danger creeps in of the
introduction of colored version, exaggerated account or concocted story as a result of
deliberation and consultation.
5. In Ramdas& Ors. v. State of Maharashtra5 the Apex Court held that on the question of
delay in lodging the first information report, the evidence is equally unconvincing.
6. In. Bhagat Ram v. State ofH.P.6in case of unreasonable delay in recording F.I.R. without

3
State of RJ V. Om Prakash,june 13 ,2007, SC
4
Thuiia Kali v. The State of TN 1973 AIR 501, 1972 SCR (3) 622
5
Ramdas& Ors. v. State of Maharashtra , 7 November, 2006
6
Bhagat Ram v. State ofh.P ,AIR 1983 SC 454, 1983 lablc 662, (1983) IILLJ 1 SC, 1983 (1) SCALE 864,
(1983) 2 SCC 442, 1983 (2) SLJ 323 SC

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any satisfactory explanation ofsuch delay, prosecution case must fail.

7. Therefore, it is humbly submitted by the respondents that four days delay in filing the FIR
puts a question on the credibility of the FIR.

1.2. Materials seized and recovered from the accused and through their statements do
not associate with the appellants to prove guilt.

8. It is humbly submitted before this Hon’ble court that the materials recovered through the
statements of the accused and through personal search do not associate with the accused
to incriminate them beyond reasonable doubt. The materials like Innova Car No. RJ-14 c-
4767 was seized with iron rod, whisky bottle and glasses and CCTV footage8 through the
statements produced by the accused in the case. However, there is no evidence provided
for to establish that the said Innova was used as a safe haven to facilitate the crime of
rape. Furthermore, it is contended that there has been no expert examination to prove that
the rod discovered from the Innova car was the one used for the insertion in uterus and
vagina of the prosecutrix.9 The absence of medical evidence to prove the presence of
prosecutrix DNA on the iron rod, questions the credibility of the evidence and the
allegations posed by the respondents on the accused.
9. It is further alleged that the materials recovered through personal search and the
statements also led to discovery of Sonata lady wrist watch, stained clothes of the
Prosecutrix, mobile phone of Sunil and Prosecutrix and R.s. 1,000/-.10 The appellants
negate the allegations and would like to submit that no evidence has been provided by the
respondent to prove that the lady wrist watch belonged to the Prosecutrix. Furthermore
there is absence of evidence to specify whether the stains on clothes of the Prosecutrix are
of blood, or vaginal fluids, food stains, grease stains etc. Hence, it cannot be merely and
gravely assumed that the clothes are blood stained with the blood being that of the
prosecutrix.
10. As per the case of Shambu Gowala v. State of WB11 no part of the evidence given by the
accused is admissible in the court of law that does not incriminate him. All the discovered

7
Para.No. 3, Moot Proposition.
8
Para.No. 3, Moot Proposition.
9
Para.No. 1, Moot Proposition.
10
Para.No. 3, Moot Proposition.
11
ShambuGowala v. State of WB 2000 CrLJ 1602 (Cal).

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evidences through the statements remain inadmissible and there is no establishment of

guilt. As submitted above that the discovered evidence do not associate with the accused
persons or that they fail to point out the guilt either because of lack of evidence or lack of
credibility, they are inadmissible under section 27 of the Evidence Act, 1872. In the case
of Pulukuri Kottaya v. Emperor12 it was observed that the difficulty, however great, of
proving that a fact discovered on information supplied by the accused is a relevant fact
can afford no justification for reading into Section 27 of the Evidence Act, something
which is not there. Therefore, evidence that is not admissible in the court of law cannot
find refuge under section 27.
11. In addition, it has been observed by the Supreme Court in the case of Madhu v. State of
Kerala13, that “only circumstantial evidence of very high order can satisfy the test of
proof in a criminal prosecution. In a case resting on circumstantial evidence, the
prosecution must establish a complete unbroken chain of events leading to the
determination that the inference being drawn from the evidence is the only inescapable
conclusion. In the absence of convincing circumstantial evidence, an accused will be
entitled to the benefit of doubt”.14
12. It is therefore, humbly submitted before this Hon’ble court that the prosecution through
lack of credible evidence have failed to establish the circumstantial evidence and hence
the guilt of the accused.

12
PulukuriKottaya v. Emperor, (1946) 49 Bom LR 508.
13
Madhu v. State of Kerala, Criminal Appeal No. 522 of 2006.
14
Ibid.

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2. WHETHER THE DYING DECLARATION IS ADMISSIBLE AND

ACCEPTABLE IN THE COURT.

13. It is contended that the dying declaration made by prosecutrix severely lacks in this
crucial area as it clearly fails to register the cause of her death or the circumstances
leading to her death.
14. It is further submitted that the present dying declaration made by Prosecutrix cannot be
relied upon as there is no evidence as to whether she was in a fit state of mind at the time
of making the dying declaration.
15. In Koli Chunilal Savji & Another v. State of Gujarat15 it was held that the ultimate test is
whether the dying declaration can be held to be a truthful one and voluntarily given. It
was further held that before recording the declaration the officer concerned must find that
the declarant was in a fit condition to make the statement in question.
16. In Kundula Bala Subrahmanyam v. State of AP16 it was observed that such a statement,
called the dying declaration, is relevant and admissible in evidence provided it has been
made by the deceased while in a fit mental condition.
17. The counsel humbly submitted that in the present case, in the absence of medical
certification that the injured was in a fit state of mind at the time of making the
declaration, it would be very much risky to accept the subjective satisfaction of a Judge
who believed that the injured was in a fit state of mind at the time of making a
declaration. It is a case of circumstantial evidence and only circumstance relied upon by
the prosecution is dying declaration.
18. In Amar Singh v. State of MP17 , it was held by M.P. High Court that without proof of
mental or physical fitness, the dying declaration was not reliable.
19. In Nanahau Ram & Anr. v. State of MP18 it was noted that normally the Court in order to
satisfy whether deceased was in a fit mental condition to make the dying declaration look
up to the medical opinion.
20. Further contended that in the case of P. Rosamma v. State of AP19 it was held that "in the
absence of medical certification that the injured was in a fit state of mind at the time of

15
Koli Chunilal Savji & Anr. v. State of Gujarat, 1999 (9) SCC 562
16
Kundula Bala Subrahmanyam v. State of AP ,(1993) 2 SCC 684
17
Amar Singh v. State of MP 1996 Cr LJ (MP) 1582
18
Nanahau Ram &Anr. V. State of MP , AIR 1988 SC 912, 1988 crilj 936, JT 1988 (1) SC 464, 1988 (1)
SCALE 424, 1988 Supp (1) SCC 152, 1988 (2) UJ 50 SC
19
P. Rosamma v. State of Andhra Pradesh ,1999 (7) SC 695

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making the declaration, it would be very much risky to accept the same subject to the
satisfaction of a Magistrate"
21. It is vehemently argued before this Court that since prosecutrix statement was given while
she was hospitalized, she may not be able to reveal each and every detail of the incident.
Secondly, the dying declaration made by her is not corroborated by any other piece of
evidence. Hence the veracity of the same is highly suspicious
22. In the case of Rasheed Beg v. State of MP20 wherein it was observed that where the dying
declaration is suspicious, it should not be acted upon without corroborative evidence.
23. In Smt. Paniben v. State of Gujarat21 This is the reason the Court also insists that the
dying declaration should be of such a nature as to inspire full confidence of the Court in
its correctness and was not as a result of either tutoring, prompting or a product of
imagination. The Court must be further satisfied that the deceased was in a fit state of
mind after a clear opportunity to observe and identify the assailants.
24. Ram Manorath v. State Of U.P22 : “It was held in a case that the dying declaration should
be subject to close scrutiny and proved beyond reasonable doubt in respect of all relevant
circumstances of the case”.
25. In Smt. Laxmi v. Om Prakash & Ors.23 : it was held: “If in a given case, a particular
dying-declaration suffers from any infirmities, either of its own or as disclosed by other
evidence adduced in the case or circumstances coming to its notice, the Court may as a
rule of prudence look for corroboration and if the infirmities be such as render the dying-
declaration so infirm as to prick the conscience of the Court, the same may be refused to
be accepted as forming safe basis for conviction.
26. Therefore it is humbly submitted by the appellants that since there is no mention of
certification of the doctor that the patient was in a fit state of mind to make the statement,
the dying declaration could not have been accepted by the court to form the sole basis of
conviction.

20
Rasheed Beg v. State of Madhya Pradesh ,1974 (4) SCC 264
21
Smt. Paniben v. State of Gujarat 1992 crilj 2919
22
Ram Manorathv State Of U.P ,(1981) SCC (2) 654
23
Smt. Laxmi v. Om Prakash & Ors ,(2001) 6 SCC 118

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3. WHETHER THE APPELLANTS COMMITTED THE OFFENCE OF

CONSPIRACY AND DACOITY

3.1 There was no criminal conspiracy amongst the appellants

27. It is pertinent to note that the punishment for committing criminal conspiracy is
mentioned under IPC24 and has to fulfill essential of criminal conspiracy evolved under
common law. Thus, this will be shown by the looking at the Actus Reus and Intention to
conspire by the petitioners. Furthermore there lies the presumption of innocence on the
part of the Respondent, until and unless the guilt is proved beyond reasonable doubt.
28. It is submitted that the respondents are not guilty for the crime of criminal conspiracy as
there has been no agreement to do such illegal act and also there has been no
establishment of Mens Rea to prove the respondents guilty of beyond reasonable doubt.25
Agreement is the rock bottom of the offence of criminal conspiracy under common law
without which no charge of criminal conspiracy can succeed. 26 An agreement to achieve
lawful object by lawful means cannot amount to conspiracy, however unscrupulous the
object or means might be.27
29. The charge of conspiracy cannot be merely made on the basis of inferences and has to be
backed by the cogent evidence to show28 that there was meeting of minds for commission
of illegal act or to achieve a particular object.29

3.1.1. Circumstantial evidence is unreliable.

30. It is submitted that when the prosecution relies on the circumstantial evidence then all the
links in the chain of circumstances must be complete and should be proved through
cogent evidence.30When a link breaks away, the chain of circumstances snap and then
other circumstances fail to prove guilty beyond reasonable doubt. Circumstantial
evidence can prove the commission of a criminal offence, only after two conditions must
be met. First, the primary facts from which the inference of guilt is to be drawn must be

24
Section 120 a, 120 B of IPC
25
Dahyabhai chhaganbhai thakker v.State Of Gujarat, AIR 1964 SC 1563.
26
Jagannath Mishra v. State of Orissa, 1974 Cut LT 1253;
Tejichand v.State of UP, 1977 U.P. Cr C (All) 281 (283).
27
PERRY & ORMEROD, BLACKSTONE‟S CRIMINAL PRACTICE A5.65 (Oxford University Press, 2015).
28
Hardeo Singh v. State of Bihar &ors., (2000) Cr. LJ 2978.
29
State v. Siddhartha Vashisht, (2001) Cr. LJ 2404.
30
Padma Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79;Chattar Singh v.State of Haryana, AIR 2009
SC 378.

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proved beyond reasonable doubt. Secondly, the inference of guilt must be the only
inference which is reasonably open on all the primary facts which the jury finds.31
31. It is humbly submitted by the appellants that the conspiracy and its objectives can be
inferred from the surrounding circumstances and the conduct of the accused, and in the
present case
a. Naveen with his three co-students named Ramesh, Suresh and Dinesh stopped
and offered them lift to drop at the girl’s hostel on Jawahar Lal Nehru Marg,
which was readily accepted.32
b. Further it is contended that there has been failure on part of the prosecutrix to
disclose the names of any of the accused persons and the brief history in FIR
as well as dying declaration.
c. The testimony of PW 1 which is already contradictory and inconsistent cannot
be taken as evidence against the appellants to declare them as conspirators.

3.2. The appellants did not commit the offence of dacoity

32. It is humbly contended before this Hon’ble Court that the appellants are not guilty of the
offence under Sec. 396 of the IPC, 1860. In the matter at hand, they have been wrongfully
convicted of dacoity by the District Court and the same was confirmed by the Hon’ble
High Court.
33. Dacoity is defined in Section 391, IPC as under:--"When five or more persons conjointly
commit or attempt to commit a robbery, or where the whole number of persons conjointly
committing or attempting to commit a robbery, and persons present and aiding such
commission or attempt, amount to five or more, every person so committing, attempting
or aiding, is said to commit 'dacoity' ".

34. Dacoity33 is robbery34 committed by five or more persons, with abettors who are present
and aiding when the crime is committed are counted in the number. To establish a charge
under this section, the prosecution must prove the following elements, beyond a
reasonable doubt35

31
Chamberlin v.R, (1984) 153 CLR 521.
32
Para 1, moot proposition
33
Sec 391, IPC
34
Sec 390, IPC
35
ShyamBehari v. State Of UP, AIR 1956 SC 320

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 The accused committed or attempted to commit robbery

 Persons committing or attempting to commit robbery and present and aiding must
not be less than five;
 All such persons should act conjointly

35. Further, it is contended that,for the offence of dacoity, the most important requirement is
the presence of fiveor more persons. In the present case as there were only four persons,
they cannot be charged for the offence of dacoity.
36. The word conjointly refers to united or concerted action of five or more persons
participating in the act of committing the offence. 36
37. The trial court committed a grave error by punishing the appellants for the offence under
section 395 IPC for conjointly committing dacoity, thus the appellants humbly submitted
that the judgment by learned session judge is erroneous in nature and it is also alleged that
the judgment dated 10.09.16 is flawed.
38. Therefore, it is humbly submitted that the appellants should be absolved from the
conviction of dacoity.

36
Niranjan das & ors. V. girdharidas&anr., 68(1989) CLT 746 ;also K.D. gaur, Textbook On Indian Penal Code 748
(5 ed. 2015).

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4. WHETHER THE ACCUSED DINESH, BEING A MINOR, IS LIABLE

FOR CONVICTION.

39. It is submitted that the legislature has adopted the age of 18 as the dividing line between
juveniles and adults and such a decision is constitutionally permissible, so the enquiry
from courts must come to an end. The juvenile here has an undisputed age of 17 years.
This age of 17 years has constitutional relevance to protect the interest of juveniles from
the Criminal liability under the IPC,1860.

40. In the Justice Verma committee report37 it was rightly pointed out that our jails are not
well equipped to keep juveniles. It was stated that: “Our jails do not have reformatory
and rehabilitation policies. We do not engage with inmates as human beings. We do not
bring about transformation. We, therefore, breed more criminals including juveniles) in
our prison and reformatory system by ghettoing them in juvenile homes and protective
homes where they are told that the State will protect and provide for them, but which
promise is a fruitless one.”
41. The Convention on the Rights of the Child, 1990 (“CRC”), in Art.1, adopts a
chronological definition of a “child”, viz. less than 18 years old, unless majority under
national legislation is attained earlier: “For the purposes of the present Convention, a
child means every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier.
42. After ratifying CRC, the Government, to fulfill the standards of the convention felt a need
to re-write the law. Hence in 2000 the old law was replaced by the Juvenile Justice (Care
and Protection of Children) Act.
43. "Juvenile" or "child" means a person who has not completed eighteenth year of age. 38

4.1 .The Act is not violate of any Constitutional or Criminal Law Provisions

44. It is duly submitted that inclusion of all under 18‟s into a class called juvenile under the
act is valid as it provides separate scheme of investigation, trial and punishment for
offences committed by them but there may exist differences inter se and within the under-

37
The Committee submitted its report on January 23, 2013. It made recommendations on laws related to rape,
sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and
educational reforms.
38
Section 2(k) of Juvenile Justice Act,2000

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18categorybutsuchcategorizationmustbeidentifiable,distinguishableand reasonable. So
this separate scheme for juveniles is totally in lines with the Art.14.39
45. By treating Dinesh as an adult, and the proposed system will incorrectly treat two
distinct categories equally. This strikes at the very core of Art. 14. The Supreme Court
has repeatedly endorsed as part of the Art.14 mandate the principle that injustice arises
not only when equals are treated unequally, but also when unequals are treated equally.40
46. Furthermore it is submitted that, the main objective of the act is to provide for care,
protection, treatment, development and rehabilitation of the neglected or the delinquent
juveniles.41So, the essence of the act is restorative and not retributive, providing for
rehabilitation and integration of children in conflict with law back into the mainstream
society.42
47. Further, In Hari Ram v. State of RJ43 The Court has in that case traced the history of the
legislation and reviewed the entire case law on the subject and held:“The law as now
crystallized on a conjoint reading of Sections 2(k)44, 2(l)45, 7-A,46 2047and 4948 read with
Rules 1249, places beyond all doubt that all persons who were below the age of 18 years
on the date of commission of the offence even prior to 1-4-2001, would be treated as
juveniles, even if the claim of juvenility was raised after they had attained the age of 18
years on or before the date of commencement of the Act and were undergoing sentence
upon being convicted. Accordingly, a juvenile who had not completed eighteen years on
the date of commission of the offence was also entitled to the benefits of the Juvenile
Justice Act, 2000.50 Accordingly, a juvenile who had not completed eighteen years on the
date of commission of the offence was also entitled to the benefits of the Juvenile Justice
Act, 2000.”
48. These decisions have been followed in several other subsequent pronouncements of this

39
Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116.
40
M. Nagaraj v. Union of India, AIR 2007 SC 71
41
AvishekGoenka v.Union of India (2012) 5 SCC 321.
42
AbuzarHussain v.State of WB, (2012) 10 SCC 489.
43
Hari Ram v. (2009) 13 SCC 211
44
Definition of "juvenile" or "child",Juvenile Justice Act,2000
45
"juvenile in conflict with law"
46
Section 7-A:Procedure to be followed when claim of juvenility is raised before any court,Juvenile Justice
Act,2000
47
Section 20:Inquiry by children' s court regarding delinquent children, Juvenile Justice Act,2000
48
Section 49: Presumption and determination of age., Juvenile Justice Act,2000
49
Procedure to be followed in determination of Age, juvenile justice rules,2007
50
Bharat Bhushanvs State Of H.P on 26 April, 2013

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Court 51including the decisions of this Court in

49. It is humbly submitted by the appellants that in the present case there is no difficulty in
understanding the clear and unambiguous meaning of the different provisions of the Act.
There is no ambiguity, much less any uncertainty, in the language used to convey what the
legislature had intended. All persons below the age of 18 are put in one class/group by the
Act to provide a separate scheme of investigation, trial and punishment for offences
committed by them. A class of persons is sought to be created who are treated differently.
50. It is submitted to the Hon’ble court that, it is settled position of law that if the
matriculation or equivalent certificates are available and there is no other material to
prove the correctness, the date of birth mentioned in the matriculation certificate has to
be treated as a conclusive proof of the date of birth of the accused52and there is no need of
any Medical Examination or the use of ossification test.53

4.2. The Minimum Age of Criminal Responsibility is fixed and is in consonance with the
International Commitments

51. It is most humbly submitted that in order to meet the international commitments like the
Beijing Rules which indicated that efforts should be made by member countries to
establish within their own national jurisdiction, a set of laws and rules especially
applicable to juvenile offenders. The Respondent submits that our country accepts the
international convention of keeping 18 years as the age of the child and the same is
reflected in various laws where the age of child was kept at 18 years such as Contract
Act, Motor Vehicles Act, etc. It was stated that the age of criminal responsibility in legal
systems that recognize the concept of the age of criminal responsibility for
juveniles should not be fixed at too low an age level, keeping in mind the emotional,
mental and intellectual maturity of children54and hence the age was decided by the
Indian Legislature as 18 years.
52. It is submitted before this Hon’ble Court that Art. 37 of CRC specifically states that a
child below the age of eighteen years should not be punished in a cruel or harmful way
and should not be held behind the bars along with adults and the present act duly follows
51
Raju and Anr. v. (2010) 3 SCC 235,Dharambir v.. (2010) 5 SCC 344,Mohan Mali and Anr.v.. (2010) 6 SCC
669, Jitendra Singh @ Babboo Singh and Anr.v.. (2010) 13 SCC 523, DayaNand v. (2011) 2 SCC 224,Shah
Nawaz v..(2011) 13 SCC 751 and Amit Singh v..(2011) 13 SCC 744.
52
AbuzarHossain alias GulamHossain v.State of WB (2012) 10 SCC 489.
53
Amit Singh v.State of Maharashtra, (2011) 13 SCC 744.
54
Age of criminal responsibility, Section 4 of United Nations Standard Minimum Rules for the Administration
of Juvenile Justice ("The Beijing Rules"), Page 5

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the same.
53. It is humbly submitted before this Hon’ble Court that the brain of the teenager is not
completely developed and he/ she is incapable of fully understanding the consequences
of his actions or omissions. It is submitted that in 2007, a study conducted at the
National Institute of Mental Health (NIMH), U.S., scanned children between ages 3 and
18 and conducted the Magnetic Resonance Imaging (MRI) scans and followed the actual
physical changes in the adolescent brain, believes that brain maturation peaks around the
age of25.
54. Under Art. 43 of the CRC, constitution of a Committee for the purpose of examining the
progress made by the State parties on the rights of the child is contemplated. In January,
2000, the Committee recommends that the State party abolish by law the imposition of
the death penalty on persons under 18. The Committee also recommends that the State
party consider raising the age of criminal responsibility and ensure that persons under 18
years are not tried as adults.
55. In Lakhan Lal v. State of Bihar55, the question was about the applicability of 2000 Act
where the appellants were not juveniles within the meaning of 1986 Act as they were
above 16 years of age but had not completed 18 years of age when offences were
committed and even when claim of juvenility was raised after they had attained 18 years
of age. This Court gave benefit of 2000 Act to the appellants and they were directed to be
released forthwith.

55
Lakhan Lal vs State Of Bihar on 14 January, 2011

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PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited and pleadings
advanced, it is humbly prayed that this Honorable Court may be pleased to:

 Uphold the decision of High Court and District court.

And pass any other order that it deems fit in the interests of justice, equity and good
Conscience.

All of which is respectfully submitted.

All of which is humbly prayed

Counsel for the Appellants

M 103

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Memorial on behalf of the appellants

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