General Intra 2019 R 12

R-12
CNLU GENERAL INTRA MOOT COURT COMPETITION- 2019
IN THE HON’BLE SUPREME COURT OF INDIANA,

AT XXXX
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 1028 of 2018
In the Matters of:
STATE OF ARYA PRADESH.....................................................................APPELLANT
VERSUS
PT. KALI CHARAN & ORS……………………………………..…. RESPONDENTS
(FOR OFFENCES CHARGED UNDER SECTION 302, 376 D, 364 R/W 34, 120 B AND OF INDIAN PENAL
CODE, 1860.)
Clubbed with
CURATIVE PETITION (C) NO. 111 OF 2018
IN
WRIT PETITION (C) NOS. XXX OF 2013
(ARISING OUT OF COMMON ORDER DATED 23.11.2016 PASSED IN

WRIT PETITION (C) NO. XXX OF 2013)
In the Matters of:
PT. KALI CHARAN ...............................................PETITIONER
VERSUS
KADAM EK PEHEL & ORS……………………...…. RESPONDENTS
-MEMORIAL ON BEHALF OF THE RESPONDENT-

Counsel for Defence in Cr. APP. NO. 1028 Of 2018
Counsel for Petitioner In C. P. (C) NO. 111 OF 2018
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................... II
INDEX OF AUTHORITIES ......................................................................................... IV
LIST OF ABBREVIATIONS ....................................................................................... VII
STATEMENT OF JURISDICTION .............................................................................. VIII
SYNOPSIS OF FACTS ............................................................................................... IX
ISSUES RAISED........................................................................................................ XI
SUMMARY OF ARGUMENTS ................................................................................... XII
ARGUMENTS ADVANCED .......................................................................................... 1
1 THAT THE EXCLUSION OF WOMAN OF A PARTICULAR AGE GROUP FROM ENTERING LORD
JOGESHWARA TEMPLE IS NOT VIOLATIVE OF PART (III) OF THE CONSTITUTION OF INDIANA. .. 1
1.1 THERE IS NO VIOLATION OF ART 14, ART 15(2) AND ART 17 OF THE CONSTITUTION.
1
1.2 TEST OF REASONABLE CLASSIFICATION ...................................................................... 1
1.3 PRINCIPLE OF INTELLIGIBLE DIFFERENTIA ................................................................... 1
1.4 THERE SHOULD BE RATIONAL NEXUS BETWEEN CLASSIFICATION AND OBJECTIVE

SOUGHT................................................................................................................................... 2
1.5 THERE IS NO VIOLATION OF ART 15(2) OF INDIANA CONSTITUTION. ......................... 2
1.6 PREVENTING ENTRY OF A CERTAIN AGE BAND OF WOMEN IN THE TEMPLE DOES’T
TANTAMOUNT TO UNTOUCHABILITY. ..................................................................................... 2
1.7 THE BAR ON WOMEN ENTRY IS A CUSTOM HENCE A LAW UNDER ARTICLE 13(3)(A)
3
1.8 THE PRACTICE OF BARRING ENTRY OF CERTAIN WOMEN TO THE TEMPLE IS A

ESSENTIAL PRACTICE OF THE RELIGIOUS DENOMINATION. .................................................... 4
1.9 THE RIGHT TO PRACTICE A RELIGION HAS BEEN VIOLATED. ..................................... 7
1.10 THE TEMPLE IS SEPARATE RELIGIOUS DENOMINATION UNDER ART 26 OF THE

CONSTITUTION ........................................................................................................................ 9
ii
2 THAT THE ACCUSED ARE NOT GUILTY OF ABDUCTION AND MURDER OF REEMA AND
RIYA, AND THE HIGH COURT OF ARYA PRADESH HAVE NOT ERRED IN ACQUITTING THEM. . 11
2.1 THERE HAS BEEN VIOLATION OF THE PROCEDURE ESTABLISHED BY

LAW UNDER CRIMINAL PROCEDURE CODE THAT IS ABSENSE OF CHARGE
SHEET IN THE FILE BEFORE THIS HON’BLE COURT. ............................................... 12
2.2 THE SESSIONS COURT HAS ERRED IN APPRECIATING THE FACTS AND
THE STATEMENTS OF THE WITNESSES ...................................................................... 14
2.3 THE CHARGE OF ABDUCTION AND MURDER ARE NOT ESTABLISHED BY THE
PROSECUTION IN THE ABSENCE OF ANY MATERIAL ON RECORD. ....................................... 15
2.4 THE COMPLAINANT HAS PERSONAL GRUDGE AND ENMITY WITH THE ACCUSED. ... 16
2.5 THE MEDICAL REPORT IS INCOMPLETE AND SEVERAL PRE-REQUISITE TESTS OF THE
ACCUSED HAVE NOT BEEN CONDUCTED. ............................................................................. 16
2.6 THE STATEMENT OF WITNESSES IS UNCLEAR AND VARYING. .................................. 16
2.7 ACCUSED WAS PRESENT IN THE TEMPLE WHILE THE INCIDENT OF KIDNAPPING. ......... 17
3 THAT ALL THE ACCUSED ARE NOT GUILTY OF RAPE ...................................................... 17
3.1 THE POST MORTEM OF THE DECEASED IS TOTALLY A BOTCHED-UP AFFAIR........... 17
3.2 THE DELAY IN FORENSIC INVESTIGATION HAS CAUSED DESTRUCTION OF THE

EVIDENCE ............................................................................................................................. 17
3.3 THERE IS NO MEDICAL EXAMINATION OF THE ACCUSED. ........................................ 18
PRAYER .................................................................................................................. 21
iii
INDEX OF AUTHORITIES
STATUTES REFERRED:
1. CODE OF CRIMINAL PROCEDURE, 1973 (ACT 2 OF 1974)
2. THE CONSTITUTION OF INDIA, 1950
3. THE INDIAN EVIDENCE ACT, 1872 (ACT 1 OF 1872)
4. THE INDIAN PENAL CODE, 1860 (ACT 45 OF 1860)
BOOKS REFERRED:
1. K.D. Gaur, A Textbook on the Indian Penal Code, 4th Edition, 2012, Universal Law
Publishing Co. Pvt. Ltd.
2. K.D. Gaur, Criminal Law: Cases and materials, 6th Edition,2009, Lexis Nexis Butterworth
Wadhwa, Nagpur.
3. Modi's, Medical Jurisprudence and Toxicology, 22nd Edition, Butterworth’s, India, New
Delhi, 1999.
4. Ratanlal & Dhirajlal, Law of Crimes, Vol. 2, 25th Edition, 2004, Bharat Law House, New
Delhi.
5. Sarkar SC, Code of Criminal Procedure, Vol. 2, 10th Edition, 2012, Lexis Nexis
Butterworth Wadhwa, Nagpur.
6. C.K Thakkar ‘Takwani’, Criminal Procedure, 3rd Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2011.
7. R.V. Kelkar’s, Criminal Procedure, 5th Edition, Eastern Book Company, Lucknow, 2008
8. Ratanlal and Dhirajlal, The Law of Evidence, 24th Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2011.
9. M.Monir, Law of Evidence, Vol. 1, 14th Edition, Universal Law Publishing Co. Pvt. Ltd.,
2006
SCHOLARLY WORKS AND ARTICLES

1. S.R. Chitnis, Framing of Charge in Criminal Cases, (2002) 2 SCC (Jour) 24
WEBSITES REFERRED:
1. http://www.vakilno1.com/
2. www.indiankanoon.com
iv
3. www.lawyersclubindia.com
4. www.ncrb.nic.in
5. www.supremelaw.in
6. www.manupatra.com
7. www.lawyerservices.in
8. www.findlaw.com
LIST OF CASES:
1. Abbas Ahmad Choudhary v. State of Assam, (2010) 12 SCC 115: 2010 Cri. L.J.
2062 ...................................................................................................................... 20
2. Alamelu & Anr. v. State, (2012) 2 SCC 385: AIR 2011 SC 715......................... 19
3. Bijoe Emmanuel & Ors. v. State of Kerala & Ors., (1986) 3 SCC 615 ................. 8
4. Budhan Chaudhary v. State Of Bihar, AIR 1955 SC 191 ...................................... 1
5. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 ..................................................... 4
6. Ewanlangki-E-Rymbai V. Jaintia Hills District Council &Ors; Appeal (Civil)
9561-9562 Of 2003 ................................................................................................ 3
7. Gulam Abbas vs State of Uttar Pradesh, AIR 1981 SC 2198 ................................ 6
8. Hur Prasad V. SheoDayal; 26 W.R. 55 (P.C.). ...................................................... 3
9. Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors., Writ
Petition (Civil) NO. 373 OF 2006. ......................................................................... 7
10. Kunwar Basant Singh V. Kunwar Brijraj Singh, AIR 1935 PC 132 ..................... 3
11. Laxmi Khandsari V. State Of UP, AIR 1981 SC 875 ............................................ 2
12. N. Adithyan vs Travencore Devasom Board, (2002)8 SCC 106 ........................... 5
13. N. Venkata Subba Rao V. Trirumala, AIR 1960 AP 412 ...................................... 4
14. Ratilal Panachand Gandhi v. The State of Bombay & Ors (1954) SCR 1055 : AIR
1954 SC 388 ........................................................................................................... 4
15. S. Mahendran Vs The Secretary, Travancore, AIR 1993 Ker 42........................... 2
16. S.P. Mittal Etc. Vs. Union Of India And Others, AIR 1983 SC 1 ......................... 9
17. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853 .. 10
18. Satish Mehra V. Delhi Admn. (1996) 9 SCC 766................................................ 14
19. Seshammal v. Stat of T.N., (1972) 2 SCC 11, (CB). ............................................. 8
20. Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1 ...................................... 9
21. Sri Lakshmana Yatendru vs State of Andhra Pradesh, AIR 1996 SC 1414........... 5
v
22. State Of J&K V. Sudershan Chakkar, (1995) 4 SCC 181 .................................... 12

23. Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853 ................ 4
24. The Commissioner Of Police & Ors vs Acharya Jagdishwarananda, 12 SCC 7704
25. Umrinath Chaudhari V. Goureenath, (1870) 13 MIA 542, At P 549 ..................... 3
26. Yakub Abdul Razak Memon V. State Of Maharashtra, CRIMINAL APPEAL No.
1728 Of 2007, 2013 (3) SCALE 565 ................................................................... 15
FOREIGN CASES :
1. Hernandez v. Commissioner, 490 U.S. 680 (1989). .............................................. 9

2. R v M’ Naghten, (1843) 8 E.R. 718 ..................................................................... 15
3. R vs Arnold; [1992] 2 SCR 208 ........................................................................... 15
4. Regina v. Secretary of State for Education and Employment and others
(Respondents) ex parte Williamson (Appellant) and others, [2005] UKHL 15..... 8
5. United States Vs. Lee, 455 U.S. 252 (1982). ......................................................... 9
vi
LIST OF ABBREVIATIONS
§ Section
§§ Sections
¶ Paragraph
F.I.R First Information Report
& And
Ld. Learned
AIR All India Reporter
DW Defence Witness
CrPC Code Of Criminal Procedure
PW Prosecution Witness
I.P.C Indian Penal Code
SCC Supreme Court Cases
HC High Court
vii
STATEMENT OF JURISDICTION
THE RESPONDENT IN THE PRESENT CASE HAS BEEN EMPOWERED BY ARTICLE

132 / 136 OF THE CONSTITUTION OF INDIA, 1949 TO INITIATE THE PRESENT
PROCEEDINGS IN THE HON’BLE SUPREME COURT OF INDIA. THE RESPONDENT
MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE JURISDICTION OF THE
HON’BLE SUPREME COURT IN THE PRESENT MATTER.
132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases
( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a
High Court in the territory of India, whether in a civil, criminal or other proceeding, if the
High Court certifies under Article 134A that the case involves a substantial question of law as
t the interpretation of this Constitution
(2) Omitted
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided Explanation For
the purposes of this article, the expression final order includes an order declaring an issue
which, if decided in favour of the appellant, would be sufficient for the final disposal of the
case
The curative petition is filed under Article 137 of Constitution of India, 1949.
137. Review of judgments or orders by the Supreme Court Subject to the provisions of any law
made by Parliament or any rules made under Article 145, the Supreme Court shall have power
to review any judgment pronounced or order made by it.
viii
SYNOPSIS OF FACTS
DEMOGRAPHICS
1. Indiana, a state comprising of 7 states has 70% people practicing Hinduism, 18%
practicing Islam and 12% are other minority religious groups. Constitution of Indiana
protects matters of religious doctrine or belief, as well as, acts done in pursuance of
religious rituals, observances, ceremonies and modes of worship. Arya Pradesh, the
largest state in Arya Pradesh has 80% of the people who are disciples of Lord
Jogeshwara.
CHANGE OF PONTIFF
2. Lord Jogeshwara is a deity depicting a ‘hyper masculine God’ born out of the union of
two male Gods, hence the deity in the temple is a Nasthik Brahmachari and so the
women after menarche up to menopause are not entitled to enter the temple and offer
prayer at any time of the year.
3. The Upper House of Indiana passed a resolution in 1985 that that parliament of Indiana
should make law prohibiting the entry of women at Lord Jogeshwara temple, which
was enacted by the Parliament of Indiana as the Lord Jogeshwara Temple (Prohibition
on Entry of Women) Act in 1985. The said Act was enforced till 2016 as the said
resolution of Upper House was renewed many times till 2016.
4. Pt. Kalicharan was appointed as new pontiff with the unanimous consent of other priests
after the death of Pt. Ram Kishan, as he had no priest. He later appointed his two sons
Bhanu and Kalu as priests in the same temple. Pt. Kalicharan made a divulgation that
women are not only prohibited to enter in the temple for offering prayers but they are
also not allowed to go to any other land which belongs to Jogeshwara Akhara which
was welcomed by majority of people in Katra.
5. On 1.05.2013, Rima and Riya, the two daughters of Pt. Ram Kishan, filed a PIL in the
name of a registered NGO, before the SC of Indiana to seek direction against the govt.
of Arya Pradesh to ensure entry to females as, which was denied in the above said Act
of 1985 & to pass directions for their safety. Over this, the SC on 23.12.16 pronounced
a judgment with 2:1 majority, allowing all the places of worship to be open to all classes
and sections of people including women, irrespective of any custom or usage of country
and held that the practice of prohibition of women to enter the temple is violative of
Fundamental Rights.
INCIDENT
ix
6. Reema and Riya with other women were stopped by the protestors which were both
men and women from entering the temple the next day by shouting, ‘IF ANY WOMEN
WILL STEP INTO THE TEMPLE OF LORD JOGESHWARA SHE WILL FACE DIRE
CONSEQUENCES AND THEIR ENTIRE FAMILY WILL BE KILLED’.
7. The police was informed of the Reema & Riya missing by Mrs. Radha (their mother)
at 1:00 am on 30.12.2016.The police without lodging an FIR investigated and found a
suspicious SUV in an abandoned jungle, near Mohini Bazar and towed the same to PS.
Around 5:30 am, Pt. Kalicharan informed the police about a dead body lying near the
Sanctum Sanctorum of the temple, which was identified as that of Reema, and was sent
for post mortem.
FIR
8. The police lodged a FIR against Pt. Kali Charan, Bhanu, Kalu, Bhawani & Jagga. Pt.
Kali Charan & his sons were arrested from the temple but Bhawani and Jagga were
missing. During preliminary investigation, the police discovered a dead body from the
jungle near Mohini Bazar on 31.12.2016 which was later identified as that of Riya. The
FIR was subsequently amended and all the accused were charged for murder of both
Reema and Riya.
9. On 05.01.2017, the Govt. of Indiana, ordered a CBI inquiry into the incident, during
which the CBI recovered 3 Daraatis & 2 Lathis and sent them for forensic investigation.
Also, CBI arrested Bhawani from his relative’s house outside Katra. The CBI Court
after the trial found all accused guilty of abduction and murder of Riya & Reema, and
also for the rape of Riya and sentenced them all to death. The HC on appeal reversed
the order and all the accused on the ground that the prosecution has failed to establish
the case beyond all reasonable doubts.
APPEAL AGAINST ACQUITTAL
10. An Appeal against the order of HC was filed before the SC in 2018, which has agreed
to hear the appeal (Cr. App. No. 1028 of 2018). Later on, Pt. Kali Charan filed a
Curative Petition in the name of Lord Jogeshwara Trust against the order of Supreme
Court passed in year 2016 allowing entry of women into Lord Jogeshwara Temple,
which the Honourable Supreme Court has agreed to hear. (CP. No. 111 of 2018). The
Chief Justice of Indiana clubbed them and placed them before the appropriate bench
for hearing on 27.01.2019.
x
ISSUES RAISED
-I-
Whether prohibiting women of a particular age group from entering Lord Jogeshwara Temple
is violative of the Fundamental Rights enshrined under the Constitution of Indiana, and the
claim for the exclusion of women from religious worship founded in religious text, is
subordinate to the Constitutional values of Liberty, Dignity and Equality?
-II-
Whether the accused are guilty of abduction and murder of Reema and Riya, and the High
Court of Arya Pradesh erred in acquitting them?
-III-
Whether all accused are guilty for committing rape of Riya?
xi
SUMMARY OF ARGUMENTS
I. Whether prohibiting women of a particular age group from entering Lord Jogeshwara
Temple is violative of the Fundamental Rights enshrined under the Constitution of Indiana,
and the claim for the exclusion of women from religious worship founded in religious text,
is subordinate to the Constitutional values of Liberty, Dignity and Equality?
It is humbly submitted before the Hon’ble Court that the mentioned Act doesn’t violate
Art 14, Art 15(2) and Art 17 of the Constitution and satisfies that test of Intelligent
differentia and reasonableness and doesn’t apply to Art 15 which prohibits discrimination
on the basis of sole criteria of gender and to Art 17 which prohibits caste-based
discrimination only. It is also humbly submitted before the Hon’ble Court that devotee’s
right to religion and right to religious denomination has been violated. Art 25(1) guarantees
to every person the freedom to practice religion of their choice, which is been violated in
the case of Lord Jogeshwara devotees by not allowing them to practice their own rituals
and ceremonies. The worship of Lord Jogeshwara forms a separate religious denomination
who has the right and power to manage their own religious affairs as enshrined in Art 26(b)
has also been violated by Court in attempting to bring the practices of the denomination
under purview of the Constitution.
II. Whether the accused are guilty of abduction and murder of Reema and Riya, and the High
Court of Arya Pradesh erred in acquitting them?
It is humbly submitted that the whole investigation has no credibility as there are important
points missing and creates a reasonable doubt as to the guilt if the accused persons. There
is variance in the statement of the witnesses and the witness have not recognised. There
are witness which are insane or mentally ill. In the absence of the material evidence, the
accused are not guilty.
III. Whether all accused are guilty for committing rape of Riya?
It is humbly submitted that the rape was not committed by the accused and the accused
were also not involved in the heinous act. There have been sheer violation of the procedure
of the post mortem and inquiry. There was no medical examination of the accused and there
is not mention of viscera or the semen or any thing which establishes that the accused have
conducted this act.
xii
ARGUMENTS ADVANCED
1 THAT THE EXCLUSION OF WOMAN OF A PARTICULAR AGE GROUP FROM

ENTERING LORD JOGESHWARA TEMPLE IS NOT VIOLATIVE OF PART (III) OF
THE CONSTITUTION OF INDIANA.
1.1 THERE IS NO VIOLATION OF ART 14, ART 15(2) AND ART 17 OF THE CONSTITUTION.
The Act of Jogeshwara Temple trust in not providing entry to the shrine of Lord
Jogeshwara is not violative of Art 14 of the Indiana Constitution. Two tests have been
provided by SC which any law passed by the Legislature has to satisfy in order to fulfil
the criteria of Art 14, The Jogeshwara Temple (Prohibition on Entry of Women) Act
1985 satisfies both.
1.2 TEST OF REASONABLE CLASSIFICATION
The test of reasonable classification was laid down by SC in Budhan Chaudhary v. State
of Bihar1which provides that: (1) the classification proposed in the legislation must be
founded on intelligible differentia and that, (2) there must be close nexus between the
classification and the object of the Act.
1.3 PRINCIPLE OF INTELLIGIBLE DIFFERENTIA
The expression intelligible differentia means difference capable of being understood and
should be reasonable and not arbitrary.2 The age old custom of excluding women between
the age of 11 to 51 years to not enter the temple of Lord Jogeshwara is not unreasonable
as the deity there is in the form of Nasthik Bramhachari3Since the deity is in the form of a
Naisthik Brahmachari, it is therefore believed that young women should not offer worship
in the temple so that even the slightest deviation from celibacy and austerity observed by
the deity is not caused by the presence of such women4. The ban is not inclusive of all
woman but only of those who are in menstruating age, as for paying a visit to the temple
1
Budhan Chaudhary v. State Of Bihar, AIR 1955 SC 191.
2
M.P. Jain, Indian Constitutional Law,876 ( 7th Ed.., Lexis Nexis Butterworth Wadhwa Publications, Nagpur,
2016).
3
Sabrimala Judgement, The Sabrimala Pilgrimage And Ayyappan Cultus.
4
Ibid.
1
the pilgrims have to observe celibacy for 41 days which some woman can’t observe
because of the physiological conditions thus they have been excluded from getting entry
to the temple.5
1.4 THERE SHOULD BE RATIONAL NEXUS BETWEEN CLASSIFICATION AND OBJECTIVE SOUGHT
The classification or differentia adopted as the basic of classification must have a rational
or reasonable nexus with the object to be achieved6. This classification has a nexus with
worship at the Lord Jogeshwara temple in the context of its origins, history and evolution.
The restriction on entry of women between the age 10 to 50 bears reasonable nexus to the
object sought to be achieved, objects of abstinence, celibacy, purity and self denial,
maintenance of the purity of the idol/deity in the form of a Naishtika Brahmacharya is also
a paramount object which is sought to be achieved.
1.5 THERE IS NO VIOLATION OF ART 15(2) OF INDIANA CONSTITUTION.
Article 15(2) of the Constitution prohibits differential treatment of persons on the ground
of sex alone. The present restriction on the specific age-group doesn’t stem from sex of the
person but the belief that the deity in the Jogeshwara temple has manifested in the form of
a ‘Naishtik Brahmachari’. Art 15(2)(b) prohibition on restricting any citizen from using
public resort doesn’t include Places of worships. The temple of Lord Jogeshwara is place
of worship and places of worship are not included within the ambit of Draft Article 9 of the
Indiana Constitution7 thus the conscious deletion of “temples” and “places of worship”
from the Draft Article 9(1) has to be given due consideration.
1.6 PREVENTING ENTRY OF A CERTAIN AGE BAND OF WOMEN IN THE TEMPLE DOES’T
TANTAMOUNT TO UNTOUCHABILITY.
All forms of untouchability don’t tantamount to untouchability. Article 17 pertains to

untouchability based on caste prejudice, literally and historically, untouchability was never
understood to apply to woman as a class8 neither there are precedent for it. The restriction
on women within certain age-band, is based upon the historical origin and the beliefs and
5
S. Mahendran Vs The Secretary, Travancore, AIR 1993 Ker 42.
6
Laxmi Khandsari V. State Of UP, AIR 1981 SC 875.
7
Constituent Assembly Debates (November 29, 1948).
8
Art 11, Draft Constitution Of India.
2
practices of the Jogeshwara temple 9 and unique characteristics of the deity not social
exclusion. Professor MP Jain also interprets Article 17 in a similar manner. He states:
“Therefore treating of persons as untouchable either temporarily or otherwise for various
reasons, e.g., suffering from an epidemic or a contagious disease or social observances
associated with birth or death, or social boycott resulting from caste or other disputes do
not come within the purview of Art 17, Art 17 is concerned with those regarded
untouchables in the course of historic developments.”10 It is clear that in the present context
provisions for untouchability doesn’t apply.
1.7 THE BAR ON WOMEN ENTRY IS A CUSTOM HENCE A LAW UNDER ARTICLE 13(3)(A)
A practice started in hoary antiquity, and continued since time immemorial without
interruption, becomes a usage and custom.11 custom is a ‘Rule which in a particular family
or in a particular district or in a particular sect, class or tribe, has from long usage obtained
the force of law.12 In Lord Jogeshwara Temple the custom of not allowing menstruating
women entry to the temple is in continuance from 900 B.C13.
A custom must be some form of antiquity and ancient which is equivalent of the expression
from time immemorial. It must have existed for so long a time that, in the language of law,
“the memory of man runneth not to the contrary”. 14 .Further such practice should be
consistent, uniform and certain15. Thus it is humble submitted that the practice of women
being not allowed in the temple premises is understood to have been prevalent since the
inception of this Temple, which is since the past several centuries, without any interruption
becomes a usage or custom and Article 13(3)(a) of the Indian Constitution states “law”
includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law;
a custom may be proved by opinions of persons likely to know of its existence, or having
special means of knowledge thereon and by particular instances by which the custom was
claimed, recognized or exercised, or in which its existence was disputed, asserted or
9
Moot Proposition ¶3
10
M.P. Jain, Indian Constitutional Law, (6thEd,., Revised By Justice Ruma Pal And Samaraditya Pal: 2010), P.
1067.
11
Ewanlangki-E-Rymbai V. Jaintia Hills District Council &Ors; Appeal (Civil) 9561-9562 Of 2003.
12
Hur Prasad V. SheoDayal; 26 W.R. 55 (P.C.).
13
14
Umrinath Chaudhari V. Goureenath, (1870) 13 MIA 542, At P 549.
15
Kunwar Basant Singh V. Kunwar Brijraj Singh, AIR 1935 PC 132.
3
departed from. 16 The Priest in the Jogeshwara and millions of people of Arya Pradesh
firmly believed and promote this notion that if the women between the age group of 11 to
51 years are allowed to offer prayers in the temple then celibacy and austerity observed by
Lord Jogeshwara will be curtailed and the temple will lose its ancient cultural and religious
significance17 and this rule is follow religiously by pilgrims all over the year.The millions
of people have faith in the manifestation of Lord Jogeshwara’s as a celibate hence the
practice of barring women of certain age-group from entering the temple is entrenched in
the religious belief and customs of the millions of believers of Lord Jogeshwara thus is
protected under law.
1.8 THE PRACTICE OF BARRING ENTRY OF CERTAIN WOMEN TO THE TEMPLE IS A ESSENTIAL
PRACTICE OF THE RELIGIOUS DENOMINATION.
The ‘essential practices’ test was formulated in Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 18, where the court stated that
what constitutes the essential part of a religion is primarily to be ascertained with reference to
the doctrines of that religion itself. The essential practice test clearly states that the practices
integral to the faith are exempted from state intervention19 in order to determine whether a
particular act constitutes an essential religious function or not reliance needs to placed on the
doctrines and religious texts of that particular religion.20
All religious practices or performances of acts in pursuance of religious beliefs are as much a
part of religion, as faith or belief in particular doctrines.21 Religion does not merely lay down
a code of ethical rules for its followers to accept, but also includes rituals and observances,
ceremonies and modes of worship which are regarded as integral parts of the religion. The
Test of finding whether a certain practice is essential is to observe whether the nature of the
religion or belief will change without that practice, If fundamental part of that belief changes
without that practice than the practice is integral and essential part of the religion22, here Lord
16
N. Venkata Subba Rao V. Trirumala, AIR 1960 AP 412.
17
18
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
AIR 1954 SC 282.
19
Ibid.
20
Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.
21
Ratilal Panachand Gandhi v. The State of Bombay & Ors (1954) SCR 1055 : AIR 1954 SC 388.
22
The Commissioner Of Police & Ors vs Acharya Jagdishwarananda, 12 SCC 770.
4
Jogeshwara entire identity revolves around him being Nasthik Bramhachari, if that identity is
lost than the temple will lose it’s ancient and cultural significance23.
The guarantee under the Article 25 of the Constitution of Indiana not only protects the freedom
of religious opinions, but it protects also acts done in pursuance of religion. Religious Practices
are reflective of matters concerning religion and if religion is to be venerated, then the practices
annexed thereto are equally respectable and have to be complied with24.The restriction on the
entry of women is the most integral and essential practice as it protects the celibate nature of
the deity which is the centre of the faith and belief that millions of followers of lord Jogeshwara
hold for the deity. As even sight deviation from austerity and celibacy will lead to temple losing
its ancient and religious significance.
In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors.,25 the ‘essential practices
test’ was discussed by a Constitution Bench in the following words:
“…In order that the practices in question should be treated as a part of religion they must be
regarded by the said religion as its essential and integral part….even practices though
religious may have sprung from merely superstitious beliefs and may in that sense be
extraneous and unessential accretions to religion itself. Unless such practices are found to
constitute an essential and integral part of a religion their claim for the protection under
Article 26 may have to be carefully scrutinised; in other words, the protection must be confined
to such religious practices as are an essential and an integral part of it and no other.”
The protection under Arts 25 and 26 extends the protection to the rituals and observance,
ceremonies and modes of worship which are integral parts of the religion and what constitutes
an essential practice has to be determined with reference to the doctrine of the
religion/faith26.Reference is required to be made to the doctrines and tenets of a religion, its
historical background, and the scriptural texts to ascertain the ‘essentiality’ of religious
practices.
In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. it was emphasised that for a religious
practise to receive protection under Article 25(1) it must be “genuinely”, and “conscientiously”
held by persons claiming such rights. The Hon’ble Court had noted that such religious beliefs
and practices must be consistently and not “idly”held, and should not emanate out of
“perversity”. In doing so, it reaffirmed that the Constitutional fabric of our country permits
23
24
Sri Lakshmana Yatendru vs State of Andhra Pradesh, AIR 1996 SC 1414.
25
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors, AIR 1961 SC 1402.
26
N. Adithyan vs Travencore Devasom Board, (2002)8 SCC 106.
5
religious beliefs and practices to exist, regardless of whether or not they appeal to the rational
sensibilities of the Court, or others.
In S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanathapuram &
Ors27.It was held that the issue whether the practices were an integral part of the religion or not
had to be decided on the basis of evidence and thus reached the conclusion that a similar
practice being followed was not in breach of Constitutional values. This decision of the Kerela
High Court was based on the decision of Supreme Court in Tilkayat Shri Govindalji Maharaj
v. State of Rajasthan where in it was held that the question whether the practise is religious in
character, and whether it can be regarded as an integral or essential part of the religion, will
depend upon the evidence adduced before a court, with respect to the tenets of the religion.
The ‘essential practices test’ in its application would have to be determined by the tenets of the
religion itself. The practices and beliefs which are considered to be integral by the religious
community are to be regarded as “essential”, and afforded protection It shouldn't be interpreted
in a manner which destroys the basic belief around which the religion is modelled. Thus no
interference can be tolerated in the customary rights to perform their religious ceremonies and
practices.28
The only way to determine the essential practices test would be with reference to the practices
followed since time immemorial, which may have been scripted in the religious texts of this
temple. If any practice in a particular temple can be traced to antiquity, and is integral to the
temple, it must be taken to be an essential religious practise of that temple. As the restriction
on the entry of women between the ages of 10 to 50 years is in accordance with the practise
prevalent since time immemorial, and was not violative of Fundamental Rights.
That the restriction on the entry of women in the temple is only to protect the manifestation
and form of the deity, which is sacred and divine. Any tampering with such practice will
disorganize the basic structure of belief in Lord Jogeshwara. The Gods have distinct forms
ascribed to them and their worship at home and in temples is ordained as certain means of
attaining salvation.29 and the practice of celibacy and austerity is a distinct characteristic of the
deity Lord Jogeshwara.
That the restriction on entry of women is a part of the essential practise of this Temple, and the
pilgrimage undertaken. Such practice is owing to the manifestation of Lord Jogeshwara as a
celibate and austere in the temple. It is clearly intended to keep the pilgrims away from any
27
S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanathapuram & Ors, AIR 1993 Ker 42.
28
Gulam Abbas vs State of Uttar Pradesh, AIR 1981 SC 2198.
29
Venkataramana Devaru & Ors. v. State of Mysore & Ors., AIR 1958 SC 255.
6
distraction related to sex, as the dominant objective of the pilgrimage is the creation of
circumstances in all respects for the successful practise of the spiritual self-discipline.
1.9 THE RIGHT TO PRACTICE A RELIGION HAS BEEN VIOLATED.
Religion is based on the foundation of faith and religious beliefs held by people are sacred and
shared amongst the people sharing the same faith. Religious Worship has two essential parts
the worshipper and the worshipped 30 . Article 25 of the Constitution protects both these
elements of religious Worship as both are integral to each other and owe their existence to the
presence of other. Thus Art 25 also protects the particular form or manifestation of a deity in
which the faith of the worshipper resides since losing that form and manifestation will result in
the worshipper losing his faith in the deity.
In this case the manifestation is in the form of a Nasthik Brahamachari. The belief in Lord
Jogeshwara revolves around his manifestation as a celibate. Thus protection of the same is
attributed to the Article 25(1) of the Constitution. Further the phrase “equally entitled to” in
Article 25(1) means that each devotee is equally entitled to profess practise and propagate his
religion and the women’s right to enter the temple and offer prayers to Lord Jogeshwara is a
matter of religion and forms a part of their right to practice religion.
In the case of Sri Venkataramana Devaru and others v. State of Mysore,31 while holding the
constitutional validity of Madras Temple Entry Authorisation Act 1947 the court held that
under the ceremonial law pertaining to temples, who are entitled to enter into them for worship
and where they are entitled to stand and worship and how the worship is to be conducted are
all matters of religion. Further it was also held that on the consecration of the image in the
temple the Hindu worshippers believe that the Divine Spirit has descended into the image and
from then on the image of the deity is fit to be worshipped. Rules with regard to daily and
periodical worship have been laid down for securing the continuance of the Divine Spirit. The
rituals have a two-fold object. One is to attract the lay worshipper to participate in the worship
carried on by the priest or Archaka. It is believed that when a congregation of worshippers
participates in the worship a particular attitude of aspiration and devotion is developed and
confers great spiritual benefit. The second object is to preserve the image from pollution,
30
Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors., Writ Petition (Civil) NO. 373 OF
2006.
31
Venkataramana Devaru & Ors. v. State of Mysore & Ors., AIR 1958 SC 255.
7
defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the
image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes.32
The idea most prominent in the mind of the worshipper is that a departure from the traditional
rules would result in the pollution or defilement of the image which must be avoided at all
costs. That is also the rationale for preserving the sanctity of the Garbhagriha or the sanctum
sanctorum.33
With respect to Article 25(1), it was submitted that the worshippers of Lord Jogeshwara are
entitled to the freedom of conscience, and the right to profess, practise and propagate the
religion.34 The right to profess their faith by worshipping at the Jogeshwara temple, can be
guaranteed only if the character of the deity as a ‘Naishtik Brahmachari’ is preserved. If women
between the age of 11 to 51 years are permitted entry, it would result in changing the very
character/nature of the deity, which would directly impinge on the right of the devotees to
practise their religion guaranteed by Article 25(1) of the Constitution.
Art 25(2) The ‘throwing open’to ‘all classes and sections of Hindus’ was intended to redress
caste-based prejudices and injustices in society. Article 25(2)(b) cannot be interpreted to mean
that customs and usages forming an essential part of the religion, are to be overridden. Article
25(2)(b) would have no application since there is no ban, but only a limited restriction, based
on faith, custom and belief, which has been observed since time immemorial. The genuine and
conscientious religious belief of the people, are protected under Article 25(1) and the personal
views of the Judges are irrelevant in ascertaining whether a practice or religious belief must
receive protection under Article 25(1)35
The House of Lords in Regina v. Secretary of State for Education andEmployment & Ors36.,
held that the court ought not to embark upon an enquiry into the validity or legitimacy of
asserted beliefs on the basis of objective standards or rationality. It is not for the Court to
embark on an inquiry into the asserted belief and judge its validity by some objective standard
such as the source material upon which the claimant founds his belief or the orthodox teaching
of the religion in question or the extent to which the claimant’s belief conforms to or differs
from the views of others professing the same religion.
32
Ibid.
33
73 IA 156.
34
Seshammal v. Stat of T.N., (1972) 2 SCC 11, (CB).
35
Bijoe Emmanuel & Ors. v. State of Kerala & Ors., (1986) 3 SCC 615.
36
Regina v. Secretary of State for Education and Employment and others (Respondents) ex parte Williamson
(Appellant) and others, [2005] UKHL 15.
8
Religious belief is intensely personal and can easily vary from one individual to another. Each
individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they
may seem to some, however surprising. The European Court of Human Rights has rightly noted
that in principle, the right to freedom of religion as understood in the Convention rules out any
appreciation by the State of the legitimacy of religious beliefs or of the manner in which these
are expressed. Courts are not arbiters of scriptural interpretation37.It is not within the judicial
ken to question the centrality of particular beliefs or practices to a faith or the validity of
particular litigants’ interpretations of those creeds38
While examining the issues falling in the realm of religious practices or Personal Law, it is not
for a court to make a choice of something which it considers as forward-looking or non-
fundamentalist. It is not for a court to determine whether religious practices were prudent or
progressive or regressive. Religion and Personal Law, must be perceived, as it is accepted by
the followers of the faith…39
1.10 THE TEMPLE IS SEPARATE RELIGIOUS DENOMINATION UNDER ART 26 OF THE
CONSTITUTION
Art 26 of the Constitution guarantees the freedom to manage its own religious affairs, The
conferred right is subjected to public order, health, morality and not to any other provisions in
Part III of the Constitution. A religious denomination or organisation enjoys complete
autonomy in matters of deciding what rites and ceremonies are essential according to the tenets
of that religion. The only restriction imposed is on the exercise of the right being subject to
public order, morality and health under Article 26. 40 The Jogeshwara temple constitutes a
separate Religious denomination altogether in S.P. Mittal v. Union of India & Ors41 where
three conditions to be fulfilled were laid out to qualify as a religious denomination-
(1) It must be a collection of individuals who have a system of beliefs or doctrines which they
regard as conducive to their spiritual well-being, that is, a common faith;
(2) common organisation; and
(3) designation by a distinctive name
37
United States Vs. Lee, 455 U.S. 252 (1982).
38
Hernandez v. Commissioner, 490 U.S. 680 (1989).
39
Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1.
40
MP. Jain, Indian Constitutional Law, (6th Ed. Revised by Justice Ruma Pal And Samaraditya Pal: 2010), P.
1067.
41
S.P. Mittal Etc. Vs. Union Of India And Others, AIR 1983 SC 1.
9
As The worshippers of Lord Jogeshwara at the Temple together constitute a religious

denomination, or sect thereof, as the case maybe, follow a common faith, and have common
beliefs and practices. These beliefs and practices are based on the belief that Lord Jogeshwara
has manifested himself in the form of a ‘Naishtik Brahmachari’. The restriction on women
between the ages of 10 to 50 years from entering the Temple has to be understood in this context
as this restriction is central to the belief that millions of people including both men and women
hold in Lord Jogeshwara.
This view of the court was relied upon in Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.42
A different view of Ayyangar,J. in the Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay43 was observed where he expressed this term to mean identity of doctrines creeds and
tenets which are intended to ensure the unity of the faith which its adherents profess and the
identity of the religious views which bind them together as one community.
Though the view that the courts have adopted is not a strait jacket formula its rather a work in
progress. The three conditions are not steadfast and hard rules rather they are mean to serve as
guidelines to ascertain whether a group would fall under the umbrella of a religious
denomination or not. If other conditions and facts prove that there exists a sect which can be
identified as having ancient distinct beliefs and practices adhered by a collection of followers
it should be identified as a Religious Denomination. The same view was endorsed by the
judgement of Chinnapa Reddy,J in the decision of S.P. Mittal v. Union of India & Ors44 where
he observed that the judicial definition laid down by the court is not a statutory definition but
an explanation meant to provide some foundation and guidance to decoding this problem.
Any freedom or right involving the matters of religion should be interpreted liberally,
expansively and in a wide sense. The sects may not posses distinctive names except the name
of the deity or the founder but they possess a strong and concrete system of beliefs which are
age old and such beliefs are shared. The most important criteria is that their should be a shared
system of common beliefs and that exist in this case.45
The manifestation of Lord Jogeshwara in the celibate form and the belief in such form is shared
my millions of people around 80% of the people of Arya Pradesh strongly believe in the deity
and his celibate form ,further such belief has been existing since the inception of this temple
42
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
AIR 1954 SC 282.
43
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.
44
Supra Note 41.
45
Ibid.
10
in 900 BC and is an essential spiritual discipline46 .It is also pertinent to mention that such
belief is shared among the numerous men and women of Arya Pradesh and has been adhered
to by them. The absence of a common distinctive name does not snatch the right of these
people to be protected under the Article 26 of the Constitution as they rightly constitute a
religious denomination. Thus, the restriction on entry of women aged 11 to 51 is a tenet
followed and adhered to by the millions of followers of women and is a protected practice
under Article 26.
2 THAT THE ACCUSED ARE NOT GUILTY OF ABDUCTION AND MURDER OF

REEMA AND RIYA, AND THE HIGH COURT OF ARYA PRADESH HAVE NOT
ERRED IN ACQUITTING THEM.
It is vehemently contended before this court that the Sessions court has been erroneous in
convicting the accused persons while the Hon’ble High Court has not erred in acquitting
the accused persons. Firstly, there has been violation of the procedure established by law
under Criminal procedure code. Secondly, the sessions court has erred in appreciating the
facts and the statements of the witnesses. Thirdly, the charge of kidnapping and murder
are not established by the prosecution in the absence of any material on record. Fourthly,
the complainant has named the accused in the FIR as the accused has took over the position
of her husband and no position is left with her family which renders the prosecution story
doubtful. Fifthly, the medical report is incomplete and several pre-requisite tests of the
accused have not been conducted. Sixthly, the statement of witnesses is unclear and
varying. In the absence of all the aforesaid, it would not be safe to convict the accused
persons.
Also, the Hon’ble High court has acquitted the accused based on appreciation of defence
evidence. But there have been several lacunas in the prosecution theory and until the case
is proved beyond reasonable doubt, conviction of the accused cannot take place.
46
Moot Proposition ¶3.
11
2.1 THERE HAS BEEN VIOLATION OF THE PROCEDURE ESTABLISHED BY LAW

UNDER CRIMINAL PROCEDURE CODE THAT IS ABSENSE OF CHARGE SHEET
IN THE FILE BEFORE THIS HON’BLE COURT.
The case against the accused has been registered under § 302, § 376 D, § 364, § 34 and § 120
B of the Indian Penal Code (herein after I.P.C.). According to § 17347 of Criminal Procedure
Code, 1973 (herein after Cr.P.C.), the investigating agency, i.e. Police or CBI, has to file a
charge sheet with in a 90 days’ time period. In this particular case, no charge sheet has been
submitted by the Police or CBI. It is to be noted that in absence of a charge sheet, this case has
been decided by the Sessions Court. The Charge is framed basing upon the Police report
submitted. In framing a charge during a criminal trial, instituted upon a police report, the court
is required to confine its attention to documents referred to under Section 173.48
It is the violation of the procedure established by law.
Since, the case has been decided and there is no charge sheet available with this Hon’ble Court.
It could be a possibility that the charge sheet had been filed by CBI but currently not available
with the documents filed before this Hon’ble court. Even then, in absence of an important
document this matter cannot be decided following principle of natural justice.
210. Procedure to be followed when there is a complaint case and police investigation in
respect of the same offence.49 —
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a
complaint case), it is made to appear to the Magistrate, during the course of the inquiry or
47
173. Report Of Police Officer On Completion Of Investigation.
(1) Every Investigation Under This Chapter Shall Be Completed Without Unnecessary Delay.
(2) (I) As Soon As It Is Completed, The Officer In Charge Of The Police Station Shall Forward To A Magistrate
Empowered To Take Cognizance Of The Offence On A Police Report, A Report In The Form Prescribed By The
State Government, Stating-
(A) The Names Of The Parties;
(B) The Nature Of The Information;
(C) The Names Of The Persons Who Appear To Be Acquainted With The Circumstances Of The Case;
(D) Whether Any Offence Appears To Have Been Committed And, If So, By Whom;
(E) Whether The Accused Has Been Arrested;
(F) Whether He Has Been Released On His Bond And, If So, Weather With Or Without Sureties;
(G) Whether He Has Been Forwarded In Custody Under Section 170.
(Ii) The Officer Shall Also Communicate, In Such Manner As May Be Prescribed By The State Government, The
Action Taken By Him, To The Person, If Any, By Whom The Information Relating To The Commission Of The
Offence Was First Given.
(3) Where A Superior Officer Of Police Has Been Appointed Under Section 158, The Report Shall, In Any Case
In Which The State Government By General Or Special Order So Directs, Be Submitted Through That Officer,
And He May, Pending The Orders Of The Magistrate, Direct The Officer In Charge Of The Police Station To
Make Further Investigation
48
State Of J&K V. Sudershan Chakkar, (1995) 4 SCC 181.
49
§ 210 Of Criminal Procedure Code, 1973.
12
trial held by him, that an investigation by the police is in progress in relation to the offence
which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the
proceedings of such inquiry or trial and call for a report on the matter from the police officer
conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report
cognizance of any offence is taken by the Magistrate against any person who is an accused in
the complaint case, the Magistrate shall inquire into or try together the complaint case and
the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate
does not take cognizance of any offence on the police report, he shall proceed with the inquiry
or trial, which was stayed by him, in accordance with the provisions of this Code.
Absence of charge sheet raises question as to the procedure followed or the present hearing
be outrightly rejected for want of necessary documents.
There has been a CBI investigation report50 which does not fulfil the criteria of the final report
under section 173.
§ 36451 of the Indian Penal Code talks about kidnapping for ransom. § 364 of the I.P.C. cannot
be implied upon the accused as there is no proof anywhere in the present factual matrix before
us which can show that the accused have abducted the deceased ladies. Therefore, the charge
against the accused is not fair and proper.
To buttress my contention inference is drawn at § 226 of The Code of Criminal Procedure,

1973 (herein after Cr.P.C) which says:
“When the accused appears or is brought before the court in pursuance of a commitment of
the case under § 209, the prosecutor shall open his case by describing the charge brought
against the accused and stating by what evidence he proposes to prove the guilt of the accused”
Before invoking provisions of §§ 227 52 and 228 53 dealing with trials before the Court of
Session, the court has to takes note of § 226 which obliges the prosecution to describe the
50
Annexure- 3 Of Moot Proposition.
51
364. Kidnapping Or Abducting In Order To Murder. —Whoever Kidnaps Or Abducts Any Person In Order That
Such Person May Be Murdered Or May Be So Disposed Of As To Be Put In Danger Of Being Mur-Dered, Shall
Be Punished With 1[Imprisonment For Life] Or Rigor-Ous Imprisonment For A Term Which May Extend To
Ten Years, And Shall Also Be Liable To Fine.
52
Discharge: If, Upon Consideration Of The Record Of The Case And The Documents Submitted Therewith, And
After Hearing The Submissions Of The Accused And The Prosecution In This Behalf, The Judge Considers That
There Is Not Sufficient Ground For Proceeding Against The Accused, He Shall Discharge The Accused And
Record His Reasons For So Doing.
53
Framing Of Charge
13
charge brought against the accused and state by what evidence the guilt of the accused would
be proved. This point was stressed upon by the two-Judge Bench in Satish Mehra v. Delhi
Admn.54 But it is a matter of regret that neither the courts nor the prosecution complies with
this section.55
The correct procedure to be followed is important as non-framing or incorrect framing of
charges are technical grounds on which the accused is entitled to pray for quashing of the trial
as well as the conviction. The Supreme Court reflecting upon the provisions of the Code of
Criminal Procedure in this regard as well as its earlier decisions to this effect declared the
principles relating to "framing of charge" in criminal trial, to serve as guidance for all the lower
courts.56
But in the present matter before hand, the prosecution has not framed proper charges against
the accused.
2.2 THE SESSIONS COURT HAS ERRED IN APPRECIATING THE FACTS AND THE
STATEMENTS OF THE WITNESSES
In the present matter, the accused are the pontiff of the Lord Jogeshwara temple and are highly
regarded in the region of Katra and around. Since, they are believers of Lord Jogeshwara, who
is present there in Nasthik Brahmachari form, and has objected to entry of women in the temple
according to the centuries’ old custom. During the protest by the deceased ladies, the accused
though threatened them but had not done anything in that direction. Those who want to remove
the accused from such regarded position has conspired this issue.
This can be proved through the statement made by the PW1 and the FIR. The body of Deceased
Reema was found around the temple. It is to be noted that being a believer, the accused were
objecting to the entry of the ladies in the temple premises. They will take the ladies somewhere
else for murdering them.
The statement of PW3 that four persons wearing saffron dhoti were abducting two girls. The
night was foggy and when it is not possible to see the persons. It is doubtful that the make and
type of vehicle could be recognised. Since, the dhoti can be worn by anybody or the conspirers
to create a scene so that the doubt will be those connected with the temple as there was tussle
between the deceased and the accused in recent past.
54
Satish Mehra V. Delhi Admn. (1996) 9 SCC 766.
55
S.R. Chitnis, Framing Of Charge In Criminal Cases, (2002) 2 SCC (Jour) 24
56
Ibid.
14
That the FIR No. 676/16 of P.S. Disawar has been registered on 27.12.2016 which has been
made in advance i.e. two days prior to the incident. There can be possibility that the accused
Mr. Jagga did it knowingly. But the same is negated by the fact that there is no evidence found
by the CBI against Jagga.57 The conspiracy has been hatched against the accused.
The PW 2 (wife of Bhawani) is an insane person with unstable mind set suffering from
Dissociative Identity Disorder.5859
Inference is drawn from the case of Yakub Abdul Razak Memon v. State of Maharashtra60 in
which the court said that where the reasons given by the trial Court are such that cannot be
supported by the evidence on record, they are not reasons for the decision. To constitute a legal
appreciation of evidence, the judgment should be such as to indicate that the Court has applied
its mind to it. Every portion of the judgment must indicate application of mind by the Court to
the evidence on record. The reason for the decision is an important ingredient of a judgment.
Compliance with the law in this regard should not be merely formal but substantial and real,
for it is this part of the judgment alone which enables the higher Court to appreciate the
correctness of the decision, the parties to feel that the Court has fully and impartially considered
their respective cases and the public to realise that a genuine and sincere attempt has been made
to mete out even-handed justice. Reasons form the substratum of the decision and their factual
accuracy is a guarantee that the Court has applied its mind to the evidence in the case. Where
the statement of reasons turned out to be a mere hollow pretension of a baseless claim of
application of mind by the Court, the judgment is robbed of one of its most essential ingredients
and forfeits its claim to be termed as judgment in the eyes of law.61
2.3 THE CHARGE OF ABDUCTION AND MURDER ARE NOT ESTABLISHED BY THE PROSECUTION IN
THE ABSENCE OF ANY MATERIAL ON RECORD.
There has been no material on record showing that the accused themselves have abducted and
murdered the deceased sisters. The prosecution story is based on statements made by the PW3
and PW2. The statement of the witnesses cannot be relied on because there is no clear vision
at the time and the person did not recognize the accused and the other witness does not even
qualify the criteria to become a witness.
57
CBI investigation report, Moot proposition.
58
Statement of DW2 , Moot proposition.
59
R vs Arnold; [1992] 2 SCR 208; R v M’ Naghten, (1843) 8 E.R. 718.
60
2013 (3) SCALE 565
61
Yakub Abdul Razak Memon V. State Of Maharashtra, CRIMINAL APPEAL No. 1728 Of 2007, 2013 (3)
SCALE 565.
15
The CBI report of investigation has also shown that there is no evidence found against the
accused.62
2.4 THE COMPLAINANT HAS PERSONAL GRUDGE AND ENMITY WITH THE ACCUSED.
The accused have acquired the position of complainant’s husband in the temple and nothing
has left for her daughter’s. Moreover, In the recent past, the confrontation between the accused
and the deceased has led the doubt in the mind of the complainant. There is no such evidence
supporting her claim. This is a desirous doubt that has been created by the conspirers against
the accused after the incident outside the temple.
2.5 THE MEDICAL REPORT IS INCOMPLETE AND SEVERAL PRE-REQUISITE TESTS OF THE
ACCUSED HAVE NOT BEEN CONDUCTED.
The medical report is not complete and the postmortem report is botched up. There has not
specific mention of the finger prints on the body of the deceased. The report says the cause of
death is Slit throat. It is not possible to slit throat of a fully-grown adult lady by one hand. There
must be finger prints available on the body. The daratis recovered must contain finger prints of
the accused. The most important question is why the medical examination of the accused and
their finger prints have not been done at the outset. The body found of Riya Claims of rape but
there is no semen or pubic hair or anything of such kind found in post mortem. There is no such
evidence against them which proves them guilty.
The darati found at accused house is blunt. The question is why would a person keep two sharp
and one blunt darati. Either all will be sharpened or all will be blunt. Hence, this does not prove
anything credible.
2.6 THE STATEMENT OF WITNESSES IS UNCLEAR AND VARYING.
The witness statements have been varying. The PW 5 and PW 2 statements are contradictory.
PW5 says that the accused No. 5 has not come home on the said night at 3 PM while her
mentally diseased wife says that he came at 3 PM. While it is the fact that being a Jogeshwara
believer, he uses to live in Akhara itself. There is no question of coming home and that too in
such cold night.
62
Moot proposition, Annexure 3.
16
2.7 ACCUSED WAS PRESENT IN THE TEMPLE WHILE THE INCIDENT OF KIDNAPPING.
The PW 3 has said that at 11:30 PM he saw four men at Mohin Bazar abducting the deceased.
The PW4 has taken prasadam from the accused at 12 AM and has been seeing and kept on
sitting at the entrance from the evening.
Hence, In the absence of all the aforesaid, it would not be safe to convict the accused persons.
There are a lot many doubts present in this case. The whole investigation is a botched-up
investigation and due to delay and incompetent system, the exposure to nature has destroyed
all the evidences.
3 THAT ALL THE ACCUSED ARE NOT GUILTY OF RAPE
It is humbly pleaded that the accused are not guilty of the offence of rape on the deceased Riya.
The prosecution story is solely based on the doubt that has been created by the complainant.
There is no ground to hold the accused guilty as 1). The post mortem of the deceased is totally
a botched-up affair, 2). The delay in forensic investigation has caused destruction of the
evidence, and 3.) There is no medical examination of the accused.
3.1 THE POST MORTEM OF THE DECEASED IS TOTALLY A BOTCHED-UP AFFAIR
The post mortem report is a botched up one. There is no examination of the clothes of the
deceased present. There is no mention of the semen or pubic hair, whether present or not. The
body has no finger print found on the body. The post-mortem report says death by manual
strangulation. This can be done by hand or any cloth or rope. But neither the finger prints not
anything else has been found or mentioned in the report. There is no mention that the viscera
in the report which forms an important part to mention in the report. The post mortem report
cannot be relied and even though relied nothing material has been found in it.
3.2 THE DELAY IN FORENSIC INVESTIGATION HAS CAUSED DESTRUCTION OF THE EVIDENCE
The biggest loophole and failure in the investigation is due to the carelessness of authority and
their competency to collect forensic evidences. There will substantial time gap between offence
and the collection of the evidence. The direct exposure to nature has destroyed the evidences.
17
3.3 THERE IS NO MEDICAL EXAMINATION OF THE ACCUSED.
The most astonishing in the whole investigation is the medical examination of the accused. No
examination or sample nothing has been taken from the accused. This raises a big doubt as to
the quality of the investigation by the authorities.
§ 53 A63 of Code of Criminal Procedure talks about Examination of person accused of rape
by medical practitioner
(1) When a person is arrested on a charge of committing an offence of rape or an attempt to

commit rape and there are reasonable grounds for believing that an examination of this
person will afford evidence as to the commission of such offence, it shall be lawful for a
registered medical practitioner employed in a hospital run by the Government or by a
local authority and in the absence of such a practitioner within the radius of sixteen
kilometres from the place where the offence has been committed by any other registered
medical practitioner, acting at the request of a police officer not below the rank of a sub-
inspector, and for any person acting in good faith in his aid and under his direction, to
make such an examination of the arrested person and to use such force as is reasonably
necessary for that purpose
(2) The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following particulars,
namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail
(3) The report shall state precisely the reasons for each conclusion arrived at
(4) The exact time of commencement and completion of the examination shall also be noted in
the report
(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in § 173 as part of the
documents referred to in clause (a) of sub-§ (5) of that §]
63
Inserted By Crpc (Amdt.) Act, 2005 (25 Of 2005), Dt. 23-6-2005. W.E.F. 23-6-2006 Vide SO 923 (E), Dt. 21-
6-2006.
18
§ 53 A. of CrPC seeks to provide for a detailed medical examination of a person accused of an

offence of rape or an attempt to commit rape by the registered medical practitioner employed
in a hospital run by the Government or a local authority and in the absence of such a practitioner
by any other registered medical practitioner.
The accused should first be identified by the person who brought him, usually a police
constable whose number and name should be noted. The medical examination report of the
accused incorporates the following:
1) Preliminary data (including identity marks),
2) Examination of his clothes,
3) Physical and Systematic Examinations,
4) Injuries on his body and genitals,
5) Collection and preservation of materials for laboratory examinations and
6) Opinion as to whether the accused is capable of performing the sexual act.
While writing the report the following should be noted carefully:
1) The presence of marks of struggle, such as bruises, scratches and teeth bites on body,
especially on face, hands, thighs and genitals.
2) The presence of loose hairs similar to those of female alleged to have been raped.
3) Injury to the genital parts may result from force exerted by accused from force applied by
the victim. In addition to scratches or lacerations on the penis caused by the fingernails by the
victims during the struggles and aberrations on lacerations may be discovered on the penis.64
The principle features of examination include signs of struggle on clothes and body and local
examination of the genitals. However, there is nothing on record to show such an investigation
carried out and also there have been no signs of any injury found on the accused persons. In
the absence of which, it can be safely concluded that the accused did not indulge in any sort of
violent activity.
In Alamelu & Anr. v. State65 the accused were charged u/s 376 & 375 and 366 of I.P.C. The
conviction of the accused based on concurrent findings was set aside as the Evidence on record
did not support findings of High Court and trial court. There were doubtful facts and
circumstances in the case and the conviction of the accused was on sole testimony of
prosecutrix. The question of the sustainability of sole testimony of the complainant was raised.
It was held that even though prosecutrix had several opportunities to protest and raise an alarm,
64
Supra Note 12
65
Alamelu & Anr. v. State, (2012) 2 SCC 385: AIR 2011 SC 715.
19
she did not do so. Conviction on sole testimony of prosecutrix, on facts, held, is not sustainable.
Therefore, High Court recording conviction on basis of her sole testimony set aside.
Further it was observed:
“In our opinion, the prosecution version has been distorted from beginning to the end, in an
effort to suppress the actual truth. There is no evidence to prove that the victim was forcibly
taken in a car. Neither the owner nor the driver of the car has been examined in the Court. In
our opinion, the trial court as well as the High Court had failed to bestow proper attention on
the inherent improbabilities contained in the evidence of the prime witnesses of the
prosecution. In our opinion, the entire story about the abduction by car and the forced
marriage seems to have been concocted to falsely implicate all the accused under Section 366
IPC. Even in the face of the wholly unreliable evidence, as noticed above, both the Courts have
convicted all the accused under Section 366 and 376 IPC. The High Court, in our opinion,
committed a grave error in confirming the conviction of the accused/appellants under Section
366 IPC. . In view of the aforesaid, we are of the considered opinion that the prosecution has
failed to prove beyond reasonable doubt any of the offences with which the appellants had been
charged. It appears that the entire prosecution story has been concocted for reasons best
known to the prosecution. In our opinion, the conclusions recorded by both the courts below
are wholly perverse. The appellants are clearly entitled to the benefit of doubt. In view of the
above, the appeals are allowed. All the appellants are acquitted. They are directed to be
released forthwith.”
In Abbas Ahmad Choudhary v. State of Assam66, the court observed:
“We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be
given primary consideration, but, at the same time, the broad principle that the prosecution
has to provide its case beyond reasonable doubt applies equally to a case of rape and there
can be no presumption that a prosecutrix would always tell the entire story truthful”
Hence, the accused are not at all guilty of the rape committed on the deceased Riya. The
accused are innocent. Though the incident is very gruesome and the guilty should be punished.
The Police should investigate the matter from beginning.
66
Abbas Ahmad Choudhary v. State of Assam, (2010) 12 SCC 115: 2010 Cri. L.J. 2062.
20
PRAYER
Wherefore in light of the issues raised, arguments advanced, and authorities cited, it is
prayed that this Hon'ble Court may be pleased to hold that:
1. Lord Jogeshwara Temple (Prohibition on Entry of Women) Act 1985 as

constitutionally valid.
2. To acquit all the accused guilty of abduction and murder of Reema and Riya.
3. To upheld the decision of the High Court of Arya Pradesh negating the sessions
court decision.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests
of
Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Shall Forever
Pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
COUNSELS FOR THE RESPONDENT
Sd/-
21

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R-12

CNLU GENERAL INTRA MOOT COURT COMPETITION- 2019

IN THE HON’BLE SUPREME COURT OF INDIANA,

CRIMINAL APPEAL NO. 1028 of 2018

In the Matters of:

STATE OF ARYA PRADESH.....................................................................APPELLANT

PT. KALI CHARAN & ORS……………………………………..…. RESPONDENTS

(ARISING OUT OF COMMON ORDER DATED 23.11.2016 PASSED IN

In the Matters of:

PT. KALI CHARAN ...............................................PETITIONER

KADAM EK PEHEL & ORS……………………...…. RESPONDENTS

-MEMORIAL ON BEHALF OF THE RESPONDENT-

TABLE OF CONTENTS ............................................................................................... II

INDEX OF AUTHORITIES ......................................................................................... IV

LIST OF ABBREVIATIONS ....................................................................................... VII

STATEMENT OF JURISDICTION .............................................................................. VIII

SYNOPSIS OF FACTS ............................................................................................... IX

SUMMARY OF ARGUMENTS ................................................................................... XII

ARGUMENTS ADVANCED .......................................................................................... 1

1.2 TEST OF REASONABLE CLASSIFICATION ...................................................................... 1

1.3 PRINCIPLE OF INTELLIGIBLE DIFFERENTIA ................................................................... 1

1.4 THERE SHOULD BE RATIONAL NEXUS BETWEEN CLASSIFICATION AND OBJECTIVE

1.5 THERE IS NO VIOLATION OF ART 15(2) OF INDIANA CONSTITUTION. ......................... 2

1.8 THE PRACTICE OF BARRING ENTRY OF CERTAIN WOMEN TO THE TEMPLE IS A

1.9 THE RIGHT TO PRACTICE A RELIGION HAS BEEN VIOLATED. ..................................... 7

1.10 THE TEMPLE IS SEPARATE RELIGIOUS DENOMINATION UNDER ART 26 OF THE

2.1 THERE HAS BEEN VIOLATION OF THE PROCEDURE ESTABLISHED BY

2.6 THE STATEMENT OF WITNESSES IS UNCLEAR AND VARYING. .................................. 16

3 THAT ALL THE ACCUSED ARE NOT GUILTY OF RAPE ...................................................... 17

3.1 THE POST MORTEM OF THE DECEASED IS TOTALLY A BOTCHED-UP AFFAIR........... 17

3.2 THE DELAY IN FORENSIC INVESTIGATION HAS CAUSED DESTRUCTION OF THE

3.3 THERE IS NO MEDICAL EXAMINATION OF THE ACCUSED. ........................................ 18

SCHOLARLY WORKS AND ARTICLES

22. State Of J&K V. Sudershan Chakkar, (1995) 4 SCC 181 .................................... 12

1. Hernandez v. Commissioner, 490 U.S. 680 (1989). .............................................. 9

THE RESPONDENT IN THE PRESENT CASE HAS BEEN EMPOWERED BY ARTICLE

Whether all accused are guilty for committing rape of Riya?

1 THAT THE EXCLUSION OF WOMAN OF A PARTICULAR AGE GROUP FROM

1.2 TEST OF REASONABLE CLASSIFICATION

1.3 PRINCIPLE OF INTELLIGIBLE DIFFERENTIA

1.5 THERE IS NO VIOLATION OF ART 15(2) OF INDIANA CONSTITUTION.

All forms of untouchability don’t tantamount to untouchability. Article 17 pertains to

1.9 THE RIGHT TO PRACTICE A RELIGION HAS BEEN VIOLATED.

1.10 THE TEMPLE IS SEPARATE RELIGIOUS DENOMINATION UNDER ART 26 OF THE

As The worshippers of Lord Jogeshwara at the Temple together constitute a religious

2 THAT THE ACCUSED ARE NOT GUILTY OF ABDUCTION AND MURDER OF

2.1 THERE HAS BEEN VIOLATION OF THE PROCEDURE ESTABLISHED BY LAW

To buttress my contention inference is drawn at § 226 of The Code of Criminal Procedure,

THE ABSENCE OF ANY MATERIAL ON RECORD.

ACCUSED HAVE NOT BEEN CONDUCTED.

2.6 THE STATEMENT OF WITNESSES IS UNCLEAR AND VARYING.

3 THAT ALL THE ACCUSED ARE NOT GUILTY OF RAPE

3.1 THE POST MORTEM OF THE DECEASED IS TOTALLY A BOTCHED-UP AFFAIR

3.3 THERE IS NO MEDICAL EXAMINATION OF THE ACCUSED.

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to

§ 53 A. of CrPC seeks to provide for a detailed medical examination of a person accused of an

1. Lord Jogeshwara Temple (Prohibition on Entry of Women) Act 1985 as

Justice, Fairness, Equity and Good Conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE RESPONDENT

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