NORTH EASTERN HILL UNIVERSITY: MOOT COURT

DEPARTMENT OF LAW

BEFORE THE HON’BLE APEX COURT OF THE

REPUBLIC OF INDIANA
(CRIMINAL APPELLATE JURISDICTION)

IN THE PROCEEDINGS BETWEEN

( SPECIAL LEAVE PETITION (CRL.) no_ OF 2016 )

SHYAMA AND SHEKHAR SAXENA

VERSUS
THE UNION OF THE REPUBLIC OF INDIANA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE …………………………………………
MEMORANDUM ON BEHALF OF THE RESPONDENT

MOST RESPECTFULLY SUBMITTED

COUNSELS APPEARING ON BEHALF OF THE RESPONDENT

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………...

INDEX OF AUTHORITIES……………………………………………………………….

STATEMENT OF JURISDICTION………………………………………………….…...

STATEMENT OF FACTS…………………………………………………………………

ISSUES INVOLVED………………………………….…………………………………….

SUMMARY OF ARGUMENTS………………………………….………………………..

ARGUMENTS ADVANCED………………………………………………………………

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT FORTH BY THE

APPELLANT BEFORE THIS HON’BLE COURT CAN BE ENTERTAINED OR
NOT…………………………………………………

1.1 Due justice has been brought as in the present case and the exist no special
circumstance by which this case should be further tried.………………………………

1.2 No substantive question of law arises in the present case. ………………………………

2. WHETHER THE ORDERS PASSED ARE IN ACCORDANCE WITH THE HIGH

COURT AND SESSION COURT AND ITS VALIDITY………………………...
2.1. the proceedings carried out by the sessions court were justified and there was
substantial medical evidence against Shyama
……………………………………………….

2.2 The sentence awarded by the high court was justified and the need to determine the age
doesnt arises…………………………………………………….

3. WHETHER THE PRESSENCE OF MR. SHEKHAR SAXENA HAS ENOUGH

WEIGHT FOR THE CONVICTION OF THE ACCUSED………………………….

2
 3.1 The commission of an illegal act was carried out by the accused……………….

3.2 There most certainly was a common intention of all to commit a criminal act ….

4. WHETHER SUCH ACTS CONTRVENE AND CONTRADICT AMONGST

INTERNATIONAL LAWS AND THE CONSTITUTION OF
INDIANA…………………………………………….

4.1 The act is in consonance with the Constitution of Indiana…………………………….

4.2 The act in consonance with the international principles in respect of juveniles ………

PRAYER……………………………………………………….…………………………....

3
 LIST OF ABBREVIATIONS

A.I.R : All India Reporters

Anr. : Another

Art. : Article

FRs : Fundamental Rights

Govt. : Government of

H.C. : High Court

Hon’ble : Honorable

Ibid : Ibidem

J. : Justice

No. : Number

Ors. : Others

SCC : Supreme Court Cases

SC : Supreme Court of India

Sd/- : Signed

SCR : Supreme Court Reporter

i.e. : That is

v. : Versus

Vol. : Volume

Viz. : “as follows”

& : And

4
 INDEX OF AUTHORITIES

1) STATUTES:

. Code of Criminal Procedure,

.Indian Penal Code, 1860

The Constitution of India, 1950

BOOKS AND COMMENTARIES:

1. Bryan A. Garner, Black’s Law Dictionary (Thomson West, Eight Edition, 2004)

2. Jonathan law & Elizabeth A. Martin, An Oxford Dictionary of Law, (Oxford University
Press, PLACE, Seventh edition, YYYY)

6. Mahendra Pal Singh, V.N. Shukla’s Constitution of India, (Eastern Book Company, Lucknow,
Twelve Edition, 2015).

7. P.M. Bakshi, The constitution of India, (Universal Law Publishing Co. Pvt Ltd, New Delhi-
India. Twelfth edition, 2015),

9. Prof. M. P. Jain, Indian Constitutional Law, (Lexis Nexis ButterWorths, Wadhwa, Nagpur,
Sixth Edition, 2009)

10. Prof. S.N. Mishra, Indian Penal Code, (Central Law Publication, Eight Edition, YYYY)

11. Mahendra Pal Singh, V.N. Shukla’s Constitution of India, (Eastern Book Company,
Lucknow, Eleventh Edition, 2011).

5
 JUDICIAL DECISIONS:

1. Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955)

AIR 65 (SC).

2. State of U.P. v. Anil Singh, AIR 1988 SC 199

3. Hem Raj v. The State of Ajmer, 1954 SCR 380.

4. State of H. P. v. Kailash Chand Mahajan, (1992) AIR 1277

(SC).

5. Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile

Mills,(2008) 13 SCC 223.

6. Pritam Singh v. The State AIR 1950 SC 169.

Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, (1955)

7. AIR 65 (SC).

8. P.S.R. Sadhanantham v. Arunachalm & Ors. , (1980) 3 SCC

141

9. Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC).

10. Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., (1999)

8 SCC 1 (SC)

11. Jamshed Hormsuji Wadia v. Board of Trustees, AIR 2004

SC 1815.

12. Deepak v. State of Haryana, (2015) 4 SCC 762.

13 Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983

SC 484

6
14. Babloo Pasi v. State of Jharkhand, 2009 (64) ACC. 754.

15. Ravinder Singh Gorkhi v. State of Uttar Pradesh, (2006) 5

SCC 584.

16. Parichat v. State of Madhya Pradesh, AIR 1972 SC 535.

17. Dhansai v. State of Orissa, AIR 1969 Ori 105.

18. Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974

SC 514.

19. State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC)

20. Kesar Singh v. State of Haryana, (2008) 15 SCC 753.

21. Sharif Ahmad Alias Achhan, (1956) 2 All 188.

22. Bhopal Singh v. State of Rajasthan AIR 1968 Raj 305

23. Maqsoodan v. State of UP, 1983 Cr LJ 218 (SC).

24. Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC

25. Hardev Singh v. State of Punjab, AIR 1979 SC 179.

26. Gaurav Kumar v. The State of Haryana 2015 (4) SCALE5

31

Salil Bali v. Union of India & Anr., (2013) 7 SCC 705.

27.

State of Tamil Nadu Vs. K. Shyam Sunder (2011) 8 SCC

28. 737.

7
29. Subramanian Swamy v. Raju, (2014) 8 SCC 390

INTERNET SOURCE

1. www.manupatrafast.com(MANUPATRA)

2. www.scconline.com(SCC ONLINE)

3. www.judis.nic.in(SUPREME COURT OF INDIA OFFICIAL)

4. www.jstor.org(JSTOR)

8
 STATEMENT OF JURISDICTION

The Respondent humbly submits to the jurisdiction of this Honourable Court under Art. 136
of the Constitution of Indiana. The respondent reserves the right to contest the jurisdiction of
this Hon’ble Court.

9
 STATEMENT OF FACTS

1. Shyama, a poor boy who lived in a slum in the outskirts of the city of Brada in the
Republic of Indiana.H e studied in a government funded school named Shanti Niketan
School upto Sixth Standard but then he dropped out of school and since then,he has
been in the employment of Mr.R.Batra for doing his household and other allied chores.
Mr Batra lives in Anand Vihar Society in the city of Brada. Shyama lives in the quarter
provided by Mr.Batra. It has been 6 years since his employment. Mr.R.Batra had two
children,a boy named Ravi , aged 18 and a girl named Vanita, aged 16 years.Both Ravi
and Vanita treated Shyama in a condescending manner, they insulted him on trivial
matters
2. One day , Shekhar aged 17 years and 7 months , son of Mr Saxena, Neighbour of Mr
Batra was playing soccer in the society park.Ravi and Vanita were jogging there as per
their routine. Shekhar and Ravi had animosity since childhood. While playing soccer ,
the football hit over the head of Vanita which gave her a minor head injury. Over this
Ravi started verbally abusing Shekhar, this lead to a heated quarrel between the two.
This provoked Ravi to give Shekhar a blow but suddenly Mr Mehta another neighbour
came and resolved the quarrel.
3. Then another day, Shyama was bringing groceries, when he reached in the vicinity of
the society ,he came across Ravi who asked him whether he brought his (Ravi's) things
or not.Shyama said,"It was not available in the market."On this, Ravi started insulting
him in public.On several ocassions, Vanita also verbally abused and tormented him in
public about which Shyama complained to Mrs.Batra to which she paid no heed.One
time, while Ravi was insulting Shyama in the society doorway; Shekhar saw this and
after Ravi left, Shekhar took this opportunity to talk to Shyama. Both shared the hatred
for Ravi and Vanita.
4. On 7th March, 2015, Shyama took leave for 3 days from work for going to his village
with the permission of Mr.Batra. On 8th March, 2015, Mr.Batra left to attend a business
seminar in another city. As it was Sunday, Mr.Batra had planned to go to a painting
exhibition with her family but due to Mr.Batra's work she decided to go along with her
children. Shyama had prior knowledge regarding it.

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5. At 7.30 p.m on 8th March,2015,Mrs.Batra reached the exhibition which was located in
the remoteand desolate part of the city of Brada.The organiser of exhibition was
Mrs.Batra's college friend so she engaged with her .Meanwhile, around 8.30
p.m.,Vanita was taken by four persons and Ravi sensed that his sister was missing , and
then he started searching her. While searching, he reached the basement where he saw
two guys were tightly holding his sister and the other two were trying to outrage her
modesty by tearing off her clothes .When Ravi tried to save his sister ,one of them gave
a blow by a rod on his head and several blows over his abdomen due to which he fell
unconscious. When Vanita tried to scream, her mouth was forcefully shut and in a
sudden haste she was strangulated. When Vanita fell dead, all of the four persons fled
away. Around 9.30 pm, the guard who came in to switch off the lights of basement
discovered two bodies and thereon the case was reported to the nearby police station,the
police arrived and the bodies were sent for medical examination.
6. On 10th Mrach, 2015,the investigating officer arrested Shekhar on the information of
Ram Manohar who saw Shekhar sneaking out of the basement on the night of 8th March
, 2015. On 12th March, 2015, Investing officer arrested Shyama along with Raju , aged
17 years and Ranveer , aged 17 years who were Shekhar's friends.
7. The postmortem report revealed that Ravi died due to head injury and internal bleeding
and Vanita died due to suffocation caused by strangulation. Her clothes were torn and
the medical report also revealed the presence of several scratches and injuries oh her
body. The case was admitted to the Juvenile Board as all the boys were below 18 years
of age. On 15th May, 2015 ,the Juvenile Board found Shekhar and Shyama to be well
aware of the circumstances and consequences of their acts and, therefore, their case was
committed to the Session Court finding them capax of committing offence .In addition
to the above reason, Shyama's case was also committed to the Sessions Court due to
insuffiency of the evidence of age. Both of them were tried in tye court of Sessions u/s
304, 326, 354 read with sec.34 of the Indian Penal Code, 1860. While Raju and Ranveer
were tried by the Juvenile Board u/s 304, 326, 354 read with sec.34 of the Indian Penal
Code, 1860(hereinafter reffered to as IPC, 1860)
8. The Parents of the deceased started protest to try all the juveniles in conflict with law
as adults due to their heinous act of brutality killing both of their children rather than
like minors just because their age fell short of 18 years by few months.
9. On 9th June ,2015 the Juvenile Board found both Raju and Ranveer guilty u/s 304, 326,
354 read with sec.34 of the Indian Penal Code 1860 and their guilt was corroborated by

11
 circumstancial evidence and medical evidence. The Juvenile Board directed them to be
sent to special home for a maximum period of one year. Both of them did not prefer
any further appeal .
10. Both Shekhar and Shyama submitted to the Sessions Court that the court has no
jurisdiction to try the case both of them being juveniles and, hence their case should be
remanded back to the Juvenile Board. On 12th June 2015, Shekhars case was remanded
back to the Juvenile Board but Shyama's submissions were rejected due to lack of
evidence of age. The Birth Certificate of Shyama provided by the Municipality could
not be discovered so there was no evidence of his age. Then Shyama asserted that an
Ossification test or other allied test should be conducted to determine his age but
thisbwas rejected by the court due to the inconclusiveness of these kinds of tests .Later
on , on 28th July, 2015 ,Shyama was found guilty u/s 304 of IPC, 1860 as his
fingerprints were found on Vanita's body as per medical report ans u/s 326 and 354 read
with Section 34 of IPC ,1860 and the court sentenced him for imprisonment of 3
years.On 4th August,2015, Shekhar was found guilty u/s 304, 326, 354 read with sec.34
of the IPC,1860 and this was corroborated by the statement of Ram Manohar. The
Juvenile board directed him to be sent to a special home for a maximum period of 3
years
11. An appeal was preferred by Shekhar in the Court of Session against the judgement and
order passed by the Juvenile Board.He submitted his mere presence does not prove the
guilt but the Session Court dismissed the appeal on the ground that appeal was not
maintainable as the case has proved beyond the reasonable doubts before the Juvenile
Board, moreover case also corroborated by circumstancial evidences, statement of eye
witness and medical evidence and that no other question of law was raised by the
appellant in the said appeal.
12. An appeal was filled in the High Court by Shyama seeking setting aside the order of
conviction since the Court of Session has no jurisdiction to try the case as the accused
was a minor and for the suspension of execution of sentence passed by the Session
court. It was also submitted that there was abouse of process of law by the trial of his
case in the Session Court and he also raised the question regarding the justification of
order passed by the Session Court rejecting the Ossification Test for determining his
age. At the same time, a revision petition was also filed by Shekhar for the quashing of
order of conviction of the Court of Session. But both the petitions were rejected by the
High Court as in the opinion of the High Court, the evidences revealed that both of

12
 them were well aware of the circumstances and consequences of their deliquent acts
and, therefore, both were capax of committing crime and that both were acting under
common consensus.The requirement of any test to determine age was consequently
rejected. In addition to this, in the opinion of the High Court, the case was proved
beyond reasonable doubts .In the cross appeal which wss filed by tye prosecution
against Shyama and Shekhar, it was contended that both culprits should be convicted
under Section 302 IPC instead of 304 and this contention of the prosecution was
accepted by the High Court and Shyama was ordered to be sentenced for a period of 10
years.
13. The Juvenile Justice (Care and Protection of Children) Act, 2014 was passed on 17th
Decenber 2014 by the parliament of Indiana which came to force on 20th
January,2015.This Act of 2014 of the Republic of Indiana is analogoud to the Juvenile
Justice(Care and Protection of Children) Act ,2015 of the Union of India.
14. On 11th January,2016 both Shyama and Shekhar approached the honourable Apex
Court of Indiana and the Apex Court clubbed both the matters and decided to hear the
same.The following points were in the question.
15. (1).Shyama challenged the proceeding of the Session Court as he was a minor,
therefore, he seeks that his case be remanded back to the Juvenile Board and also seeks
that the sentence passed by the Session Court and the High Court be set aside.

(2).Shyama also raised question regarding the justification of the order passed by the
Session Court and the High Court, rejecting the conduct of the bone test or other allied test
for determining his age.

(3).Shekhar raised appeal against the judgment and order passed by the Juvenile Board,
Session Court and the High Court which was passed solely on the basis of his presence
in the exhibition on the night of 8th March, 2015 and seeks acquittal from all the
charges.
16. A PIL is also filed by AIM Foundation, an NGO working for child rights, challenging
the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act
of 2014.
17. Indiana is a signatory to the United Nations' Convention on the Rights of the Child (
UNCRC). Its article 40 specifically establishes parameter for juvenile justice. In
addition to this, the case of Shyama is supported by a Human Welfare Organization to
protect his interests.

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 ISSUES INVOLVED

 CONTENTION 1 : WHETHER THE SPECIAL LEAVE PETITION BROUGHT

FORTH BY THE APPELLANT BEFORE THIS HON’BLE COURT CAN BE

ENTERTAINED OR NOT

 CONTENTION 2 : WHETHER THE ORDERS PASSED ARE IN ACCORDANCE

WITH THE HIGH COURT AND SESSION COURT AND ITS VALIDITY

 CONTENTION 3: WHETHER THE PRESSENCE OF MR. SHEKHAR SAXENA

HAS ENOUGH WEIGHT FOR THE RELEASE AND AQUITTAL OF THE

ACCUSED

 CONTENTION 4: WHETHER SUCH ACTS CONTRVENE AND CONTRADICT

AMONGST INTERNATIONAL LAWS AND THE CONSTITUTION OF INDIANA

14
 SUMMARY OF ARGUMENTS

 CONTENTION 1 : WHETHER THE SPECIAL LEAVE PETITION BROUGHT

FORTH BY THE APPELLANT BEFORE THIS HON’BLE COURT CAN BE

ENTERTAINED OR NOT

It is most respectfully submitted before the Hon’ble Supreme Court of Indiana that the instant
petition is not maintainable as Special Leave cannot be granted when substantial justice has
been done and no exceptional or special circumstances exist for case to be maintainable. In the
present case no exceptional and special circumstances exist and substantial justice has already
been done.

It is contended by the respondents that no substantial question of law is involved in the present
case and the interference is based on pure question of fact which is entitled to be dismissed.
This court had laid down the test which says if the general principles to be applied in
determining the question of those principles the question would not be a substantial question
of law. In the present case the appellants have been unsuccessful to show any exceptional and
special circumstances which exist. The appellants are convicted of a heinous offence and this
petition filed by the appellants is a mere vexatious attempt by them. Hence, the petition is liable
to be dismissed and should not be entertained.

 CONTENTION 2 : WHETHER THE ORDERS PASSED ARE IN ACCORDANCE

WITH THE HIGH COURT AND SESSION COURT AND ITS VALIDITY

It is humbly submitted before this Hon’ble Supreme Court that the Sessions Court has declared
both, Shyama and Shekhar, as the accused in the light of the heinous acts committed by them.
It is contended by the respondents that the proceedings of the Sessions Court in the present
case were justified and lawful. There was no irregularity of proceeding in the present case. The
Sessions Courtfound Shyama guilty of the offences in light of the circumstantial evidences
which were found against him. According to the Medical Report, the fingerprints of Shyama
were found on Vanita’s body which led the court upon such a decision. The second accused in
the present case i.e. Shekhar was found guilty by the Sessions Court upon the statement of Ram

15
Manohar. He is the same person who saw Shekhar escaping out of the basement, where the
whole crime took place, at the night of the crime. In this situation it can be well ascertained
that, not only his appearance was considered also his acts were considered too. Hence, in the
present case the accused was well aware of the circumstances of his delinquent act and hence
he was capax of committing such a heinous offence. It’s further contended before this Hon’ble
Court that the orders passes by both the lower courts were well justified and there is no need
to waste the time of the court in such vexatious and false contentions.

 CONTENTION 3: WHETHER THE PRESSENCE OF MR. SHEKHAR SAXENA

HAS ENOUGH WEIGHT FOR THE RELEASE AND AQUITTAL OF THE

ACCUSED.

It is contented before this honorable Court that the decision passed by the Honorable

High Court is a reasoned decision. Also, it is further contended that Shekhar was not

charged merely on the ground of presence alone. It is humbly submitted before this

honorable Court that, his plea of merely present at the crime scene is wrong and denied.

The accused was present at the crime scene in pursuance of a pre-planned act of taking

revenge. It is his hatred and animosity due to which he committed such a heinous

offence. It is pertinent to mention again that, Shekhar became so ambitious with the

hatred against Ravi and Vanita that, he started discussing the same with their servant.

 CONTENTION 4: WHETHER SUCH ACTS CONTRVENE AND CONTRADICT

AMONGST INTERNATIONAL LAWS AND THE CONSTITUTION OF INDIANA

It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile
Justice (Care and Protection of Children) Act. 2015 is very much in consonance with
the provisions of the Constitution of Indiana. All the children in the age group of 16-
18 years are treated equally and no two children in the age group of 16-18 years who

16
commit a heinous offence are proposed to be treated differently under the current Act.
Hence, there will be not differential treatment of such children on any ground.
The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly
defined and classified offences as petty, serious and heinous, and define differentiated
processes for each category. The present act which has been amended is very well in
consonance with the Articles of the Constitution of Indiana. The Republic of Indiana
is a signatory to various conventions which protect the rights of Children.
The United Nations Convention on Rights of Child was ratified by the Republic of
Indiana in 1992 and the 2000 Act was consequently brought in to adhere to the
standards set by the Convention. The countries who are a signatory to the convention
have certain international commitments. However, by only becoming a mere
signatory to the convention does not make any country legally bound to follow the
provisions of the convention. It is only when then country has ratified such
provisions, it becomes legally bound to abide by them.

17
 ARGUMENTS ADVANCED

CONTENTION 1 : WHETHER THE SPECIAL LEAVE PETITION

BROUGHT BEFORE THIS COURT IS MAINTAINABLE OR NOT.

 It is most respectfully submitted before the Hono’ble Supreme Court of Indiana that the
instant petition is not maintainable as Special Leave cannot be granted when substantial
justice has been done and no exceptional or special circumstances exist for case to be
maintainable. It will not be granted if there is no failure of justice or when substantial
justice is done. Article 136 does not give a right to a party to appeal to SC rather it
confers wide discretionary power on the SC to interfere in suitable cases 1. Also in the
present case, no substantial question of law is involved and interference is based on
pure question of fact which is entitled to be dismissed. A mere existence of substantial
question of law is not sufficient unless serious injustice of the substantial nature has
been occasioned2.
 The Supreme Court, however, does not grant leave to appeal in criminal matters
liberally. It does so only when exceptional and special circumstances exist, substantial
and grave injustice has been done, and the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against, or there has been
a departure from legal procedure such as vitiates the whole trial, or if the findings of
fact “were such as shocking” to the judicial conscience of the Court3

1
Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC).

2
Hon’ble Justice Bhanwar Singh, Criminal Appeals, JTRI Journal, 1995.
3
State of U.P. v. Anil Singh, AIR 1988 SC 199

18
1.1 DUE JUSTICE HAS BEEN BROUGHT AS IN THE PRESENT CASE AND THE
EXIST NO SPECIAL CIRCUMSTANCE BY WHICH THIS CASE SHOULD BE
FURTHER TRIED.

 The petitioner contends that in the present case no exceptional and special
circumstances exist and substantial justice has already been done. The appellant must
show that exceptional and special circumstances exists and that if there is no
interference, substantial and grave injustice will be done to the appellant4. Only then
the court would exercise its overriding powers under Art. 1365. Special leave will not
be granted when there is no failure of justice or when substantial justice is done, though
the decision suffers from some legal errors6 The court has emphasized in Pritam Singh
v. The State7 that, “ The only uniform standard which in our opinion can be laid down
in the circumstances in that Court should grant special leave to appeal in those cases
where special circumstances are shown to exist”. The court shall interfere with the
decision under challenge only if the extraordinary flaws or grave injustice or other
recognized grounds are made out8. It was also observed that, it is not possible to define
the limitations on the exercise of the discretionary jurisdiction vested in this Court under
Art. 136. It being an exceptional and overriding power, naturally, has to be exercised
sparingly and with caution and only in special and extraordinary situations9. Article 136
does not give a right to a party to appeal to the SC rather it confers a wide discretionary
power on the SC to interfere in suitable cases10. In the present case the appellants have
been unsuccessful to show any exceptional and special circumstances which exist. The
appellants are convicted of a heinous offence and this petition filed by the appellants is
a mere vexatious attempt by them. Hence, the petition is liable to be dismissed.
 In a number of cases, it has been held that except that where there has been an illegality
or an irregularity of procedure or a violation of principle of natural justice resulting in
the absence of a fair trial or gross miscarriage of justice, the SC does not permit a third

4
Hem Raj v. The State of Ajmer, 1954 SCR 380
5
M.P Jain, Indian Constitutional Law, LexisNexis, Nagpur, 7th Edn. 2014.
6
State of H. P. v. Kailash Chand Mahajan, (1992) AIR 1277 (SC).

7
AIR 1950 SC 169.
8
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 223.
9
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, (1955) AIR 65 (SC).
10
P.S.R. Sadhanantham v. Arunachalm & Ors. , (1980) 3 SCC 141

19
 review of evidence with regard to question of fact in cases in which two courts of fact
have appreciated and assessed the evidence with regard to such questions11.
 It is contended that this court is not bound to go into the merits and even if it were to
do so, and declare the law or point out the error, still it may not interfere if the justice
of the case on facts doesn’t require interference or if it feels that the relief could be
moulded in a different fashion12.

1.2 NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE.

 It is contended by the respondents that no substantial question of law is involved in the

present case and the interference is based on pure question of fact which is entitled to
bedismissed. This court had laid down the test which says if the general principles to
be applied in determining the question of those principles the question would not be a
substantial question of law. It might involve question of law but not ‘substantial’
question of law. The present case does not involve such ‘substantial’ question of law.
In Jamshed Hormsuji Wadia v. Board of Trustees, Port of Mumbai1313 the court
emphasized that, “the very conferment of the discretionary power defies any attempt at
exhaustive definition of power. The power is permitted to be invoked not in a routine
fashion but in very exceptional circumstances as when a question of law of general
public importance arises or a decision sought to be impugned before the Supreme Court
shocks the conscience. This overriding and exceptional power has been vested in the
Supreme Court to be exercised sparingly and only in the furtherance of cause of justice
in the Supreme Court in exceptional cases only when special circumstances are shown
to exist”.

11
Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC).
12
12 Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., (1999) 8 SCC 1 (SC)
13
AIR 2004 SC 1815.

20
 CONTENTION 2: WHETHER THE ORDER OF THE SESSIONS COURT
AND HIGH COURT WAS VALID OR NOT.

 The Councils for the respondent humbly submitted before this Hon’ble Supreme Court
that the Sessions Court has declared both, Shyama and Shekhar, as the accused in the
light of the heinous acts committed by them. This order of conviction of both the
persons accused has also been upheld by the Hon’ble High Court. The Hon’ble High
Court raised the sentence of both the persons convicted. Shyama was ordered to be
sentenced for life imprisonment and Shekhar was sentenced for a period of 10 years
imprisonment14. This order of conviction passed by the Sessions Court and the sentence
increased by the High Court are well justified.

2.1 THE PROCEEDINGS CARRIED OUT BY THE SESSIONS COURT

WERE JUSTIFIED AND THERE WAS SUBSTANTIAL MEDICAL
EVIDENCE AGAINST SHYAMA

 It is contended by the respondents that the proceedings of the Sessions Court in the
present case were justified and lawful. There was no irregularity of proceeding in the
present case. The Sessions Court found Shyama guilty of the offences in light of the
circumstantial evidences which were found against him. According to the Medical
Report, the fingerprints of Shyama were found on Vanita’s body which led the court
upon such a decision. Recently, in a case15 the court emphasized that, “even the
medical evidence supports the commission of sexual violence on the victim and we
need not elaborate on this issue any more in the light of concurrent finding of the
courts below having been recorded against the Appellant holding in clear terms that
sign of commission of rape on the victim by the Appellant stood proved by medical
evidence beyond reasonable doubt”. In the present case, the fingerprints of Shyama on
the body of Vanita were enough to prove that the heinous offence was committed by

14
moot proposition para 13.
15
Deepak v. State of Haryana, (2015) 4 SCC 762.

21
 him. There was substantial circumstantial evidence before the Sessions Court against
Shyama which led to his conviction.
 The second accused in the present case i.e. Shekhar was found guilty by the Sessions
Court upon the statement of Ram Manohar. He is the same person who saw Shekhar
escaping out of the basement, where the whole crime took place, at the night of the
crime. It has been held in plethora of cases that wherein there is a difference of
opinion regarding the ocular and medical evidence, the ocular evidence always
supersedes the medical evidence. The testimony of the eye witnesses cannot be
thrown out on the ground of alleged inconsistency between it and the medical
evidence16. Thus, the position of law in cases where there is a contradiction between
medical evidence and ocular evidence can be crystallized to the effect that though the
ocular testimony of a witness has greater evidentiary value vis-`-vis medical evidence,
when medical evidence makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of evidence18. Hence, the Sessions
Court was justified in convicting both the accused for committing such heinous
offences.

2.2 THE SENTENCE AWARDED BY THE HIGH COURT WAS JUSTIFIED AND THE
NEED TO DETERMINE THE AGE DOESNT ARISES.

 The increasing of the sentence of both the accused in the present case by the Hon’ble
High court was a justified act. The Hon’ble High Court sentenced Shyama for
imprisonment for life and Shekhar was sentenced for imprisonment for a period of ten
years. The Hon’ble High Court opined that the evidences revealed that both of the
accused were well aware of the circumstances of their delinquent acts. Also, the case
had been proved beyond reasonable doubt.
 It is humbly contended before this honourable court the reasons given by High Court
while rejecting the petition stated that, Shyama was well aware of the circumstances
and consequences of his delinquent act and therefore he was considered capax of
committing crime. It has been held by the courts in their judgments where if the court

16
Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484

22
 by the appearance of the person can determine if the person is adult then, he will be
considered adult. The court in the case of Babloo Pasi v. State of Jharkhand17 opined
that by observing the physical built up of the person, it can be ascertained that he is an
adult. It would be a duty of the court to accord the benefit to a juvenile, provided he is
one, to give such benefit to one who in fact is not a juvenile may cause injustice to the
victim18 In this situation it can be well ascertained that, not only his appearance was
considered also his acts were considered too. Hence, in the present case the accused
was well aware of the circumstances of his delinquent act and hence he was capax of
committing such a heinous offence. It’s further contended before this Hon’ble Court
that the orders passes by both the lower courts were well justified and there is no need
to waste the time of the court in such vexatious and false contentions

17
2009 (64) ACC. 754.
18
Ravinder Singh Gorkhi v. State of Uttar Pradesh, (2006) 5 SCC 584.

23
  CONTENTION 3 WHETHER THE PRESSENCE OF MR.
SHEKHAR SAXENA HAS ENOUGH WEIGHT FOR THE
CONVICTION OF THE ACCUSED
 It is contented before this Hon’ble Supreme Court of Indiana that the decision passed
by the Hon’ble High Court is a reasoned decision. Also, it is further contended that
Shekhar was not charged merely on the ground of presence alone, following reasons
were given by the honorable Court:
 Both the accused that is Shekhar Sexana and Shyama of them were well aware of
circumstances and consequences of their delinquent acts.
i. Both were capax of committing the crime.
ii. Both were acting in common consensus.

The case was proved beyond reasonable doubts.

 It is contended by the councils of the respondents that Shekhar had worked in

furtherance of the common intention to commit the offences against Ravi and Vanita.
In order to attain his common final object of taking revenge from Ravi against the long
lasting animosity.
 To attract the application of section 34 the following 3 conditions must exist:

1. Criminal act must be done by several persons;

2. There must be common intention of all to commit that criminal act;

3. There must be participation of all in the commission of offence in furtherance of that

common intention19.

 The first element is well proved. Several persons contended here are Raju , Ranveer,
 Shyama and Shekhar. In furtherance of the common intention, several persons must
have done several acts which together constitute an offense. In such a situation S.34
provides for each to be liable for the entire act as a whole20.

19
Parichat v. State of Madhya Pradesh, AIR 1972 SC 535.
20
Dhansai v. State of Orissa, AIR 1969 Ori 105.

24
3.1 THE COMMISSION OF AN ILLEGAL ACT WAS CARRIED OUT BY
THE ACCUSED.

 It is not necessary to prove an overt act by a particular person in order to convict the
person. Criminal act done by all or one of them in furtherance of the common intention
of all would suffice to convict all the people21. It is contended that the criminal act of
murder was done by all the four accused in the furtherance of their common intention.
 Lastly, culpability of a person under S. 3422 cannot be excluded merely because he was
not present at the scene of the occurrence of the particular offense for which he has
been
 charged23.

3.2 THERE MOST CERTAINLY WAS A COMMON INTENTION OF ALL

TO COMMIT A CRIMINAL ACT .

 It is presumed that every sane person intends the result that his action normally
produces and if a person hits another on a vulnerable part of the body, and death occurs
as a result, the intention of the accused can be no other than to take the life of the victim
and the offence committed amounts to murder. The intention to cause damage or injury
to either public oany person has to be there. Intention connotes a conscious state in
which mental faculties are roused into activity and summoned into action for the
deliberate purpose of being directed towards a particular and specified act. Intention
has been defined as the fixed direction of the mind to a particular object, or a
termination to act in a particular manner. So, the intention of the person can be gathered
from the action of the person24, Shekhar had animosity since childhood with Ravi.
Shekhar and Shyama had shared the hatred for Ravi and Vanita. Which is enough to
show that Shekhar had intention to take revenge from Ravi and Vanita by any means.
Common intention comes into being prior to the commission of the act in point of
time25.

21
State of Punjab v. Mann Singh, 1983 Cr LJ 229 (SC)
22
Indiana Penal Code, 1860.
23
Tukaram Ganpet Pandave v. State of Maharashtra, AIR 1974 SC 514.
24
Kesar Singh v. State of Haryana, (2008) 15 SCC 753.

25
Sharif Ahmad Alias Achhan, (1956) 2 All 188.

25
  Therefore, there needs to be a prior plan to commit a crime. This pre-arranged plan
however need not be an elaborate one26. A mere existence of a pre-arranged plan that
the offense be conducted is enough to satisfy this element. In most circumstances, proof
of common intention has to be inferred from the act or conduct or other relevant
circumstances of the case at hand27.
 Moreover, the intention to kill is not required in every case, mere knowledge that
natural and probable consequences of an act would be death will suffice for a conviction
under s. 302 of IPC28. The common intention must be to commit the particular crime,
though the actual crime may be conducted by anyone sharing the common intention29.
 Therefore, it is contended by the prosecution that while the act of murder was conducted
in furtherance of the common intention between the two accused which can be inferred
from their frequent discussions on what it would mean if Ravi were to die one day, a
common intention to commit the offense of murder. As per para 530 it is mentioned that
there were four persons, two of them were tightly holding Vanita and other two were
trying to outrage her modesty. Even if, Shekhar was holding Vanita cannot be the
ground to save him from the crime that he has committed. It is humbly submitted before
this Hon’ble Court that, his plea of merely present at the crime scene is wrong and
denied. The accused was present at the crime scene in pursuance of a pre-planned act
of taking revenge. It is his hatred and animosity due to which he committed such a
heinous offence. It is pertinent to mention again that, Shekhar became so ambitious
with the hatred against Ravi and Vanita that, he started discussing the same with their
servant.

26
Bhopal Singh v. State of Rajasthan AIR 1968 Raj 305.
27
Maqsoodan v. State of UP, 1983 Cr LJ 218 (SC).
28
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC)
29
Hardev Singh v. State of Punjab, AIR 1979 SC 179.
30
MOOT PROPOSITION.

26
 CONTENTION 4 WHETHER THE ACT IS IN CONTRAVENTION WITH
THE CONSTITUTION OF INDIANA.

 It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile
Justice (Care and Protection of Children) Act. 2015 (hereinafter as Act.) is very much
in consonance with the provisions of the Constitution of Indiana. All the children in the
age group of 16-18 years are treated equally and no two children in the age group of
16-18 years who commit a heinous offence are proposed to be treated differently under
the current Act. Hence, there will be not differential treatment of such children on any
ground.
 The new Act establishes a more robust, effective and responsive legislative framework
for children requiring care and protection, as well as children in conflict with law. Its
provisions responded to the perceptions, articulated by a wide cross-section of society
for the need to have an effective and strengthened system of administration of juvenile
justice, care and protection31.
 The Supreme Court strongly emphasized for a development in the current legislation of
relating to juvenile offender in the case of Gaurav Kumar v. The State of Haryana32.
The court observed that, “The rate of crime and the nature of crime in which the juvenile
are getting involved for which the Union of India and the State Governments are
compelled to file cases before this Court to which the learned Attorney General does
not disagree, have increased. A time has come to think of an effective law to deal with
the situation, we would request the learned Attorney General to bring it to the notice of
the concerned authorities so that the relevant provisions under the Act can be re-looked,
re-scrutinize and re-visited, at least in respect of offences which are heinous in nature”.
The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly
defined and classified offences as petty, serious and heinous, and defined differentiated
processes for each category. Keeping in view the increasing number of serious offences
being committed by persons in the age group of 16-18 years and recognizing the rights
of the victims as being equally important as the rights of juveniles, special provisions

31
Amendments to the Juvenile Justice (Care and Protection of Children) Bill, Press Information Bureau, 2015.
32
2015 (4) SCALE5 31.

27
 have been made in the new Act to tackle heinous offences committed by individuals in
this age group33.
 In recent years, there has been a spurt in criminal activities by adults, but not so by
juveniles, as the materials produced before us show34. In the case of State of Tamil
Nadu Vs. K. Shyam Sunder35, the court emphasized that, “Merely because the law
causes hardships or sometimes results in adverse consequences,

4.1 THE ACT IS IN CONSONANCE WITH THE CONSTITUTION OF

INDIANA.

 The present act which has been amended is very well in consonance with the Articles
of the Constitution of Indiana. Further, the Section 3 under the General Principles of
Care and Protection of Children of the Act, states that there shall be no discrimination
against a child on any ground including sex, caste, ethnicity, place of birth, disability
and equality of access, opportunity and treatment to every child36.
 Therefore, the Act, is in consonance with Article 15 which prohibits discrimination on
grounds of religion, race, caste, sex or place of birth. The procedures for treatment of
children who commit heinous crimes in the age group of 16 to 18 years are well laid
down in the Act. There is no arbitrariness in the current Act, with regard to procedure.
 So, there is no violation of Art. 21 of the Constitution which provides for right to life
and personal liberty. Elaborate statistics have been laid before us to show the extent of
serious crimes committed by juveniles and the increase in the rate of such crimes 37.
Also, if mature and cognitive individuals are given the armour of a Special Law
allowing them to commit offences under the Indian Penal Code without any liability,
they would breed within themselves enraged criminals with psychotic tendencies. Fake
birth certificates would throng and act as a weapon of defence against prosecution for
their wrongdoings. This is against the principles of natural justice and against the nature

33
Press Note of Union Ministry of Women and Child Development, Press Information Bureau, 2014.
34
Salil Bali v. Union of India & Anr.,(2013) 7 SCC 705.
35
(2011) 8 SCC 737.

36
Section 3(x), Juvenile Justice (Care and Protection of Children) Act. 2015 – Principle of Equality and Non-
Discrimination
37
Subramanian Swamy v. Raju, (2014) 8 SCC 390

28
 of an intelligent rather than to exterminate him from the society. However, a person
capable and mature to understand his actions and its consequences, while committing
the depravity of sin, if shields himself under the false sheath of law, it does infringe jus
naturale.

4.2 THE ACT IN CONSONANCE WITH THE INTERNATIONAL

PRINCIPLES IN RESPECT OF JUVENILES

 The Republic of Indiana is a signatory to various conventions which protect the rights
of Children. The United Nations Convention on Rights of Child (hereinafter as
UNCRC) was ratified by the Republic of Indiana in 1992 and the 2000 Act was
consequently brought in to adhere to the standards set by the Convention. Specifically,
it is pointed out that the practice of statutory exclusion which ensures that perpetrators
of certain grave offences are prosecuted as adults; ‘judicial waiver’, granting discretion
to special juvenile courts to waive jurisdiction and transfer the juvenile’s case to an
ordinary court of law and also the policy of concurrent jurisdiction of both the ordinary
and juvenile courts giving discretion to the prosecutor to initiate proceedings in the
more suitable court are followed in foreign jurisdictions.
 The Act. Of 2015 maintains this aim and seeks to improve implementation and
procedural delays experienced by the 2000 Act. The UNCRC states that signatory
countries should treat every child under the age of 18 years in the same manner and not
try them as adults. However, many other countries who have also ratified the
Convention try juveniles as adults, in case of certain crimes. These countries include
the UK, France, Germany, etc. The United States is not a signatory to the UNCRC and
also treats juveniles as adults in case of certain crimes.
 The provisions of various countries cannot be overlooked while dealing with such a
sensitive issue. In United Kingdom, “Extended” custodial sentences are given to young
persons if their crime is so serious that no other alternative is suitable, or if the young
 person is a habitual offender, or if the Judge thinks the person is a risk to public safety.
 In United States of America, the majority age is 18 years, but persons older than 14
years may be tried as adults if they commit serious crimes (rape, robbery, murder etc.).
The state of New York pegs the age of juvenility at 16 years, and permits the
prosecution of persons aged between 13-16 years as adults in case of serious crimes.

29
 In Nepal, the minimum age of criminal responsibility is 10 years. A child is a person
below 16 years. A person between 16-18 years are charged and tried as adults under the
judicial system of Nepal.
 Also, Countries like U.K. Canada and USA have departed from the obligations under
the UN Convention. The countries who are a signatory to the convention have certain
international commitments. However, by only becoming a mere signatory to the
convention does not make any country legally bound to follow the provisions of the
convention. It is only when then country has ratified such provisions, it becomes legally
bound to abide by them.

30
 PRAYER

Therefore, in the light of the facts stated, issues raised, arguments advanced and the authorities
cited, it is most humbly prayed by the Petitioner in this matter that the Hon’ble High Court of
Crystalden may be pleased to adjudge and declare that;

I. Dismiss this Special Leave Petition.

II. Hold that the order of conviction passed by the Sessions Court and the Hon’ble High
III. Court is correct.
IV. Hold that the Juvenile Justice (Care and Protection of Children) Act. 2015 is in
consonance with the Constitution of Indiana and International Conventions.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and
Good Conscience.

For This Act of Kindness, the Petitioner shall be Duty Bound

Forever Pray.

Sd/-
COUNSELS FOR THE RESPONDENT

Place:

Date:

31