Memorial on Behalf of the Appellants

April 28, 2018 | Author: monesh boopalan | Category: Criminal Procedure In South Africa, Crime & Justice, Crimes, Appeal, Magistrate
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[3rd Manipal Moot Court Competition] [2017] TEAM CODE: M 160 3rd MANIPAL RANKA NATIONAL MOOT COURT COMPETITION 2017 IN THE HONOURABLE SUPREME COURT OF INDIA AT NEW DELHI CRIMINAL APPEAL NO. ****/2016 IN THE MATTER OF SHRI NAVEEN & ANOTHER v. STATE OF NCT DELHI & ORS. APPELLANTS RESPONDENTS CASE CONCERNING OFFENCES UNDER SECTION 376(2)(g), 302,120B,377,365,366,397,307,412,201 and 34 of IPC and sec 354(3) and 235 (2) of Crpc. UPON SUBMISSION TO THE HON’BLE COURT AND HIS COMPANION JUSTICE OF THE SUPREME COURTOF INDIA Memorial on behalf of the Appellants [3rd Manipal Moot Court Competition] [2017] TETABLE OF CONTENTS LIST OF ABBREVIATIONS…………..………………………………………..…..……….II LIST OF AUTHORITIES………………………………………....………………………….....IV ACTS AND STATUTES……………………………………………………………………….IV BOOKS REFERRED……………………………………………………………………….…..VI LIST OF CASES...........................................................................................................................IV DICTIONARIES REFERRED………………………………………………………………....VII WEBSITE REFERRED…………………………………………………………………….…VII STATEMENT OF JURISDICTION……………………………………………………….…VIII STATEMENT OF FACTS……………………………………………………………………..IX QUESTIONS PRESENTED……………………………………………………………………XI SUMMARY OF ARGUMENTS……………………………………………………………….XII ARGUMENTS ADVANCED……………………………………………………………………1 1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT............................ A. DIFFERENT FORUMS FOR FILING APPEALS BYY THE ACCUSED AGAINST THE ORDER OF CONVICTION.................................................................................................... (i) 374. Appeals from convictions.............................................................................................. B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL AND SUBSTANTIVE (i)Requirement of the law that the hight courthas its own decisions,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, (a)Appeal : statutory right…………………………………………,,,,,,,,,,,,,,,,,,,,,,,,,,,, C. CIRCUMSTANCES IN FILING APPEAL: LIMITATION ACT……………………… [3rd Manipal Moot Court Competition] [2017] 2. WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL......6-16 A. INTERFERENCE WITH THE AGE OF JUVENILITY UNDER THE JUVENILE JUSTIE ACT, 2000 (JJ ACT…………………………………………………………………………….. (i) whether the offence(s) allegedly committed by the juvenile is to be inquired into by the Board (ii) The degree/level of mental maturity and irrespective of the gravity of the crime........................ B.THE PRACTICE OF STATUTORY EXCLUSION WHICH ENSURES THAT PERPETRATORS OF CERTAIN GRAVE OFFENCES ARE PROSECUTED AS ADULTS; ‘JUDICIAL WAIVER................................................................................................................. (i) Section 28 of the act read together with sec 15………………………………………….. (a) The existence of the criminal justice system……………………………………………… b) The United Nations Convention on the Rights of the Child, 1990................................... C. INTELLECTUAL MATURITY OF AN ADOLESCENT IS DIFFERENT FROM EMOTIONAL OR SOCIAL MATURITY WHICH MAKES AN ADOLESCENT MATURE FOR SOME DECISIONS BUT NOT FOR OTHERS................................................................ (i) Advantageous to now take note of the Juvenile Justice System working in other jurisdictions................................................................................................................................... (a) The Act replaces the criminal justice system in the country.................................................... (b) blanket/flat categorisation of all juveniles.............................................................................. (ii) For saving a statute from being struck down on account of its unconstitutionality................... 3.WHETHER THE CRIMINAL APPEAL FILED IN SUPREME COURT BY THE ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHER.....16-22 (i) Delayed registration of FIR;…………………………………………………. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page xvi [3rd Manipal Moot Court Competition] [2017] (ii) Non-mentioning of names of assailants in the F.I.R.;………………………… (iii) Inconsistencies and omissions amounting to contradictions in the testimony of PW- 1…………………………………………………………………………… (iv) Recovery of the Car and other items on personal search and statements of disclosure leading to recovery;………………………………………….. (v) Admissibility and acceptability of the dying declaration of the prosecutrix when no names were spelt out;……………………………………………………….. (vi) Insertion of the iron rod in the rectum and vagina after rape by all the convicts; (vii) There was no criminal Conspiracy;’……………………………………………….. (viii) Age of Dinesh was 17 years and 10 months as per Matriculation School Certificate against medical certificate of 18 years 8 months…………………. PRAYER……………………………………………………………………………….…….XV WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xvii [3rd Manipal Moot Court Competition] [2017] TABLE OF CONTENTS S.NO ABBREVATION FULL FORM 1 ¶ Paragraph 2 & And 3 AIR All India Reporter 4 Anr. Another 5 Art Article 6 CA Criminal Appeal 7 CIT Commissioner of Income Tax 8 Cr.LJ Criminal Law Journal 9 Cr. PC Code of Criminal Procedure 10 DW Defence Witness 11 FIR First Information Report 12 Gau Guwahati 13 HC High Court 14 i.e. That is 15 IPC Indian Penal Code 16 IEA Indian Evidence Act 17 Mad Madras 18 NCT National Capital Territory 19 Ors Others 20 P&H Punjab & Haryana 21 PW Prosecution Witness 22 SC Supreme Court 23 SCC Supreme Court Cases 24 SCR Supreme Court Record WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xviii [3rd Manipal Moot Court Competition] [2017] 25 SLP Special Leave Petition 26 UOI Union of India INDEX OF AUTHORITIES BOOKS Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016) 3 Dr. CK Parikh, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology, (6th Ed., CBS Publisher’s 2014) 5 Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010). 7 Dr. K.S. Narayana Reddy, The Essentials of Forensic Medicine & Toxicology (33rd Ed., J.P. Publications, 2010) 9 H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law Publication,2015) 18 J.P. Modi’s , A Textbook of Medical Jurisprudence & Toxicology, (25th Ed., Lexis Nexis , 2016) 6 Justice UL Bhatt, Lectures on Indian Evidence Act,(Universal LawPublication,2015) 10 KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009) 23 KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd., 2016) 24 MP Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016) 13 WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page xix [3rd Manipal Moot Court Competition] [2017] Prof. Arthur Best, Wigmore on Evidence,(Aspen Publishers; 13-Volume Ed.December 31, 1995) 7 Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II , Thomson Reuters) 4 Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016) 11 Ratanlal & Dheerajlal, Law of Evidence (25th Ed, Lexis Nexis, 2013) 20 Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016) 21 R.V. Kelkar, Criminal Procedure, (5th Ed. 2011) 17 SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency, 2014 ) 3 SC Sarkar, The Code of Criminal Procedure: An Encyclopaedic Commentary on the Code of Criminal Procedure,1973 (11th Ed., Lexis Nexis, 2015) 19 V.N. Shukla's, Constitution of India, (12th Ed. Eastern Book Company, India 2013) 7 ACTS AND STATUES THE CODE OF CRIMINAL PROCEDURE, 1973 11 THE INDIAN EVIDENCE ACT, 1872 10 THE INDIAN PENAL CODE, 1860 3 THE JUVENILE JUSTICE ACT 2000 19 SUPREME COURT AND OTHER COURT CASE WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page xx [3rd Manipal Moot Court Competition] [2017] CASE CONCERNING MAINTAINABILITY OF APPEAL Akhtari Bi v. Bihar 06 Jagbir Singh v. State of Delhi 05 Kailash Raguvir vs State Of Gujarat 03 Panchi Nath v. State 04 State of Kamataka v. Bheemappa 02 Lokesh Kaushik & Ors. v. State, SC on 28th April, 2009 Mahmood v. State of UP, AIR 1976 SC 69 01 Mahavir Kumar & Ors. v. State, Delhi HC on 16th May, 2014 05 Md. Alimuddin And Ors. v. State Of Assam MANU/GH/0052/1992 04 Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182 03 Mohd. Nawaz v. Emperor AIR 1941 PC 132 05 Mohinder Singh v. State of Punjab, AIR 1965 SC 79 06 Naina Mohammed re, 1960 Cr.LJ 620 06 Nazuk Zahan v. Addl. DJ, AIR 1981 SC 1549 02 Palvinder Kaur v. The State of Punjab 1953 Cr.LJ 154 01 Pritam Singh v. State, AIR1950 SC 169 01 CASE CONCERNING JUVENILE OFFENDER Dadu Vs. State of Maharashtra 09 WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page xxi [3rd Manipal Moot Court Competition] [2017] Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Others 11 Cauvery (2) case 13 Essa @Anjum Abdul Razak Memon vs. State of Maharashtra 12 In Re, Special Reference No.1 of 20126 12 Kesho Ram and Others Vs. Union of India and Others 15 Mithu Vs. State of Punjab 10 Pratap Singh vs. State of Jharkhand and Another 14 Salil Bali vs. Union of India 17 United States v. Butler 15 U. Suvetha v. State, (2009) Cr.LJ 2974. 16 Vipin Jaiswal(A-I) v. State Of A.P. SC on 13 March, 2013 13 Vithal Eknath Adlinge v. State of Maharashtra, SC on 27th Feb, 2009 12 CASE CONCERCING FOLLOWING OBJECTIONS: CONVICT Abraham Mallory Dillet re, (1887) 12 AC 459 18 Ali Jishan v. State of Kerala, on 26 November, 2009 19 Amar Singh v. State of MP, 1996 Cr.LJ 1582 (MP) 20 Anil Kumar Gupta vs. State of UP, 2011 Cr.LJ 2131 21 Aruna Chadha v. State of Delhi, CRL.REV.P. 305/2013 17 Arun Garg v. State of Punjab, (2004) 8 SCC 25. 17 WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxii [3rd Manipal Moot Court Competition] [2017] Singh V. Union Of India & Ors 1977 SCC (1) 220. 19 Bishandas v. State of Punjab, AIR1975 SC573 21 Bhushan Sharma v. State of UP, 2001 Cr.LJ 1384 22 Bombay High Court - Aniruddha vs State on 21 November, 2009 19 Chanda Laxmi N. v. State of A.P, 1996 Cr.L.J. 2670 17 Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra, 1974 Cr.LJ 21 1044 Hari Dev Sharma vs State 20 Subramanian vs State Of TN 19 Mukesh & Anr. …Appellants Vs State for NCT of Delhi 18 DICTONARIES Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006) 9 Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990) 13 WEBSITE www.manupatrafast.in (Last visited on 7th August, 2016) 23 www.scconline.com (Last visited on 8th August,2016 ) 22 www.supremecourtofindia.nic.in (Last visited on 2nd August,2016) 18 www.westlawindia.com (Last visited on 5th August,2016) 10 WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxiii [3rd Manipal Moot Court Competition] [2017] STATEMENT OF THE FACTS CAUSE OF ACTION The cold evening of Delhi on 16th December, 2015 the twenty two year medico namely Sunita, who had gone with her friend Suneel, a medico, to watch a film at EP. A classic Car ‘Innova’ 7seater, with all gadgets, bar, pillows and CC TV Camera etc. driven by a commerce graduate Shri Naveen along with his three co-students named Ramesh, Suresh and Dinesh (minor) stopped and offered them lift to drop at the girls hostel on JawaharLal Nehru Marg, which was readily accepted. She got prey to the savage lust of this gang of four, who threw Suneel in a dense forest beyond Jagatpura after robbing him and giving threats of murder, where he became unconscious, was naked and all the four one by one assaulted her in the Car. PROSECUTION WITNESS Shri Suneel (PW-1) survived and Sunita was searched by the police was found unconscious and naked, was provided with clothes and was carried to SMS Hospital and later to New Delhi. FIR was filed on 20.12.2015 by (PW-1), which was handed over to S.I. Pratibha Sharma (PW-80) for investigation. Charge sheet filed on 3.1.2016 under sections 376(2)(g), 302, 120-B, 377, 365, 366, 396, 397, 307, 412, 201 and 34 of IPC and Sections 354(3) and 235(2) of Cr. P.C. VIEW OF TRIAL COURT The learned trial Judge directed the sentences under Sections 20B/365/366/376(2)(g)/377/201/395/ 397/412 IPC to run concurrently and that the benefit under Section 428 Cr.PC would be given wherever applicable. VIEW OF HIGH COURT: The High Court vide judgment dated 13.3.2017, affirmed the conviction and confirmed the death penalty imposed upon the accused by expressing the opinion that under the facts and circumstances WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxiv [3rd Manipal Moot Court Competition] [2017] of the case, imposition of death penalty awarded by the trial court deserved to be confirmed in respect of all the four convicts.Criminal appeals were filed before the Supreme Court by all the convicts, which were consolidated. The convicts took following objections amongst others. STATEMENT OF THE JURISDICTION The Appellants have appeared before the Honourable SC of India in response to the appeal filed by the Conviction under sec 374 (1) of the Criminal procedure Code, 1973. SEC 374. APPEAL FROM CONVICTIONS (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2 has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.1 (3) Save as otherwise provided in sub- section (2), any person,- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or (b) sentenced under section 325,2 or (c) in respect of whom an order has been made or a sentence has been passed under section 3603 by any Magistrate, may appeal to the Court of Session 1 Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016) 2 The Criminal Procedure Code, 1973 3 Ibid. WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxv [3rd Manipal Moot Court Competition] [2017] (a) Disposing of appeals The memorandum for Appellants in the matters offset forth the Facts, Contentions and Arguments present in this case. STATEMENT OF ISSUES 1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT. A. DIFFERENT FORUMS FOR FILING APPEALS BYY THE ACCUSED AGAINST THE ORDER OF CONVICTION B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL AND SUBSTANTIVE C. CIRCUMSTANCES IN FILING APPEAL: LIMITATION ACT 2. WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL A. INTERFERENCE WITH THE AGE OF JUVENILITY UNDER THE JUVENILE JUSTICE ACT, 2000 (JJ ACT) B.THE PRACTICE OF STATUTORY EXCLUSION WHICH ENSURES THAT PERPETRATORS OF CERTAIN GRAVE OFFENCES ARE PROSECUTED AS ADULTS; ‘JUDICIAL WAIVER. C. INTELLECTUAL MATURITY OF AN ADOLESCENT IS DIFFERENT FROM EMOTIONAL OR SOCIAL MATURITY WHICH MAKES AN ADOLESCENT MATURE FOR SOME DECISIONS BUT NOT FOR OTHERS 3. WHETHER THE CRIMINAL APPEAL FILED IN SUPREME COURT BY THE ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHERS?  DELAYED REGISTRATION OF FIR;  NON-MENTIONING OF NAMES OF ASSAILANTS IN THE F.I.R.; WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxvi [3rd Manipal Moot Court Competition] [2017]  INCONSISTENCIES AND OMISSIONS AMOUNTING TO CONTRADICTIONS IN THE TESTIMONY OF PW-1.  RECOVERY OF THE CAR AND OTHER ITEMS ON PERSONAL SEARCH AND STATEMENTS OF DISCLOSURE LEADING TO RECOVERY;  ADMISSIBILITY AND ACCEPTABILITY OF THE DYING DECLARATION OF THE PROSECUTRIX WHEN NO NAMES WERE SPELT OUT;  INSERTION OF THE IRON ROD IN THE RECTUM AND VAGINA AFTER RAPE BY ALL THE CONVICTS;  THERE WAS NO CRIMINAL CONSPIRACY;  AGE OF DINESH WAS 17 YEARS AND 10 MONTHS AS PER MATRICULATION SCHOOL CERTIFICATE AGAINST MEDICAL CERTIFICATE OF 18 YEARS 8 MONTHS. WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxvii [3rd Manipal Moot Court Competition] [2017] SUMMARY OF ARGUMENTS 1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT. An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. (A) Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal.(B) The defendant may challenge the conviction itself or may appeal the trial court’s sentencing decision without actually challenging the underlying conviction.(C) 2. WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL the young offenders to become useful members of the society in later years, which sought interference with the age of juvenility under the Juvenile Justice Act, 2000 (JJ Act).(A) Explaining the scheme for trial and punishment under the JJ Act, the Court said that The JJ Act does not do away or obliterate the enforcement of the law insofar as juvenile offenders are concerned and that the same penal law i.e. Indian Penal Code apply to all juveniles.(B) The Court further explained that the only difference is that a different scheme for trial and punishment is introduced by the JJ Act in place of the regular provisions under the Code of Criminal Procedure for trial of offenders and the punishments under the Indian Penal Code.(C) 3. WHETHER THE CRIMINAL APPEAL FILED IN SUPREME COURT BY THE ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHERS? WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxviii [3rd Manipal Moot Court Competition] [2017] As the argument commenced with the said note, we thought it appropriate to grant liberty to the learned counsel for the appellants to challenge the conviction and the imposition of death sentence from all aspects and counts and to dissect the evidence and project the irregularities in arrest and investigation. Learned counsel for the parties argued the matter for considerable length of time and hence, we shall deal with every aspect in detail. WRITTEN SUBMISSION ON Page BEHALF OF THE APPELLANTS xxix [3rd Manipal Moot Court Competition] [2017] ARGUMENTS ADVANCED 1. WHETHER THE APPEAL HIS MAINTAINABLE IN THIS COURT OR NOT? An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. (A) Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal.(B) The defendant may challenge the conviction itself or may appeal the trial court’s sentencing decision without actually challenging the underlying conviction.(C) A. DIFFERENT FORUMS FOR FILING APPEALS BYY THE ACCUSED AGAINST THE ORDER OF CONVICTION The section provides three different forums for filing appeals by the accused against the order of conviction. They are as follows:4 (1) If the trial is held by the High Court in exercise of its extraordinary original criminal jurisdiction, an appeal would lie to the Supreme Court and not to a large Bench of Judges of that High Court.5 (2) If the trial is held by the Sessions Judge or an Additional Sessions Judge, or by any other Court in which sentence of imprisonment for more than seven years has been passed, an appeal would lie to the High Court.6 (3) If the trial is held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first or second class except in cases falling under Sections 325 and 360, an appeal will lie to the Court of Session. 4 Vinay Vishan, The Practice of Law, http://thepracticeoflawjalan.blogspot.in/2012/04/crpc-appeal-against- acquittal.html#!/2012/04/crpc-appeal-against-acquittal.html (10:15 am, 29//08/17). 5 Ibid. 6 KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009) WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 1 [3rd Manipal Moot Court Competition] [2017] Where several persons have been convicted in a single trial by a Sessions Judge or by the Additional Sessions Judge, all of them can file a joint appeal in the High Court and it is not necessary for them to file separate appeals.7 (i) 374. Appeals from convictions.8 (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2 has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.9 (3) Save as otherwise provided in sub- section (2), any person,- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or (b) sentenced under section 325,10 or (c) in respect of whom an order has been made or a sentence has been passed under section 36011 by any Magistrate, may appeal to the Court of Session (a) Disposing of appeals While disposing of appeals from the sentences of the Sessions Court under this Section, the High Court should specify the reasons for rejection of appeal and should not reject it summarily. This 7 Ibid. 8 The Criminal Procedure code, 1973. 9 Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016) 10 The Criminal Procedure Code, 1973 11 Ibid. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 2 [3rd Manipal Moot Court Competition] [2017] will enable the Supreme Court to know the view of the High Court, in case the appellant moves the Supreme Court in appeal.12 In this case Kailash Raguvir vs State Of Gujarat,13 Criminal Appeal No. 956 of 1985 is preferred by accused No. 2-Kailash Raghuvir Mishra, under Section 374 of the Code of Criminal Procedure against his conviction and sentence, as aforesaid. Criminal Appeal No. 1010 of 1985 is preferred under Section 374 of the Code of Criminal Procedure by accused No. 1 - 14Jatashankar Asharam Pande, Gitaben, wife of Jatashankar Asharam accused No. 3, and Rajkumari, wife of Kailash Raghuvir-accused No. 4 against their conviction and sentence, as aforesaid. Criminal Appeal No. 1238 of 1985 is preferred by the State against all the four accused under Section 378 of Code of Criminal Procedure for acquittal of each of the accused for the offence punishable under Section 302 to read with Section 34 of the Indian Penal Code. Criminal Revision Application No. 541 of 1985 is preferred by informant complainant Shankar Bhadriprasad Maurya against all the accused and the relief is claimed against the acquittal of all the four accused for the offence punishable under Section 302 to read with Section 34 of the Indian Penal Code while Criminal Revision Application No. 542 of 1985 has also been preferred by informant complainant Shankar Bhadriprasad Maurya for the relief to enhance the sentences awarded to each of the four accused. In the case of State of Kamataka v. Bheemappa,15 the High Court allowing appeal against conviction in a murder case, acquitted all the accused persons probably influenced by the false accusations against some others, without appreciating the trial court’s reasoning for conviction. The Supreme Court re-appreciated the evidence and set aside the acquittal and restored the conviction of the accused.16 B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL AND SUBSTANTIVE 12 . R.V. Kelkar, Criminal Procedure, (5th Ed. 2011) 13 AIR 1985 (2) SCC 2346. 14 Supra. 15 1994 SCC Sppl. (1) 2013 JT 1993. 16 Supra. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 3 [3rd Manipal Moot Court Competition] [2017] For computing the sentence of imprisonment for seven years for the purpose of ascertaining the appellate forum under Section 374 (2),17 the sentence in default of payment of fine is not to be added to the substantive sentence of imprisonment.18 Thus where an accused was sentenced to seven years’ RI with a fine and in default of payment, to suffer simple imprisonment for one month,19 the appeal filed against it could not be rejected by the Sessions Court on the ground that substantive sentence of imprisonment and default sentence of imprisonment, both added together was more than seven years. The appeal in the case clearly lay to the Sessions Court and not to the High Court.20 (i) Requirement of law that the High court has to come to its own independent decision An appeal or revision filed by the convict from jail must be forwarded by the Jail authorities by providing legal aid to the convict.21 While dealing with reference, the High Court should consider the proceedings in all their material aspects and arrive at an independent conclusion on the basis of record different from that concluded by the Sessions Judge.22 It is the requirement of law that the High Court has to come to its own independent decision.23 (a) Appeal : statutory right The Supreme Court in Akhtari Bi v. Bihar, has observed in the context of Sections 37424 and 37825 as follows: “The Court has time and again reminded that appeal being a statutory right, the trial Court’s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.26 17 The Criminal Procedure Code, 1973. 18 Ibid. 19 Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006) 20 Ibid. 21 KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009) 22 EBC (2014). Civil & Criminal Practice Manual Pocket Edition. Eastern Book Company. ISBN 978-93-5145-089. 23 Ibid. 24 The Criminal Procedure Code, 1973. 25 Ibid. 26 Surendra Malik; Sudeep Malik (2015). Supreme Court on Death Sentence in Murder cases. Eastern Book Company. ISBN 978-93-5145-209-6. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 4 [3rd Manipal Moot Court Competition] [2017] It is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails,27 that the matters are disposed of within the specified period not exceeding five years in any case and if the appeal is not disposed of within the aforesaid specified period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court.”28 The Supreme Court in Jagbir Singh v. State of Delhi29 held that where the accused had made a request only for reduction of sentence, he cannot be permitted to challenge the validity of his conviction in the appellate Court.30 C. CIRCUMSTANCES IN FILING APPEAL: LIMITATION ACT The Court further observed that the judgment of a Court being conclusive, if the party (prosecution or defence) does not agree with the findings of the Court,31 he should bring it to the notice of the Court then and there when the facts are being considered, and if he does not 32 raise any objection when the facts or findings are being recorded by the Court, then the judgment given on the basis of those facts would be conclusive and no appeal can be entertained on the question of facts.33 In the instant case, no objection was raised by the accused against his conviction by the Court of Session,34 therefore the question of justifiability of sentence could not be reconsidered by the appellate Court. Hence, the Supreme Court refused to interfere in the judgment of the Court below.35 27 Ibid. 28 EBC (2015). Supreme Court Cases Back Volume- Full Set From 1970 to 2014 and 1 Vol of 2015 Total 81 Volumes. Eastern Book Company. 29 AIR 2016 (2) DHC 2345. 30 Ibid. 31 Hall, Jerome (1960). General Principles of Criminal Law. Lexis Law Pub. ISBN 0-672-80035-7. 32 Hart, H.L.A. (1968). Punishment and Responsibility. Oxford University Press. ISBN 0-19-825181-5. 33 Ibid. 34 Surendra Malik; Sudeep Malik (2015). Supreme Court on Criminal Procedure Code and Criminal Trial. Eastern Book Company. ISBN 978-93-5145-223-2. 35 R.V.Kelkar's (Revised By K.N.Chandrasekharan Pillai) (2014). R.V.Kelkar's Criminal Procedure. Eastern Book Company. ISBN 978-93-5145-101-3. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 5 [3rd Manipal Moot Court Competition] [2017] In Panchi Nath v. State,36 the question of application of Section 5 of Limitation Act, 1963, 37 for condonation of delay in filing appeal was before consideration of the High Court of Rajasthan. In this case, the accused was convicted under Section 9 of the Wild Life Protection Act. No application for suspension of sentence was moved on his behalf on the same day in trial Court. He was, therefore, sent to judicial custody on the same day.38 When his son came to know about it, then he arranged money for expenses to be incurred in filing appeal.39 The Court held that under these circumstances, a delay of 25 days in filing appeal was liable to be condoned under Section 374 of the Code.40 2. WHETHER ITS UNLAWFUT TO KEEP JUVENILE CONVICT IN THE JAIL The object behind treating the persons under 18 years of age as juveniles is to ensure their rehabilitation in society and to enable the young offenders to become useful members of the society in later years, which sought interference with the age of juvenility under the Juvenile Justice Act, 2000 (JJ Act).(A) Explaining the scheme for trial and punishment under the JJ Act, the Court said that The JJ Act does not do away or obliterate the enforcement of the law insofar as juvenile offenders are concerned and that the same penal law i.e. Indian Penal Code apply to all juveniles.(B) The Court further explained that the only difference is that a different scheme for trial and punishment is introduced by the JJ Act in place of the regular provisions under the Code of Criminal Procedure for trial of offenders and the punishments under the Indian Penal Code.(C) A. INTERFERENCE WITH THE AGE OF JUVENILITY UNDER THE JUVENILE JUSTICE ACT, 2000 (JJ ACT) 36 2006 CriLJ 361, RLW 2006 (2). 37 The Limitation Act, 1963. 38 Ibid. 39 Ibid. 40 The Criminal Procedure Code, 1973. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 6 [3rd Manipal Moot Court Competition] [2017] On 16th December, 2015 a young lady (22 years in age) and her friend were returning home after watching a movie in EP. They boarded Innova car to undertake a part of the journey back hostel. While the bus was moving, 4 persons brutally assaulted the young lady, sexually and physically, and also her friend. Both of them were thrown out of the car. The young lady succumbed to her injuries.41Four persons were apprehended in connection with the crime. One of them, identified for the purpose of the present case as Dinesh, was below 18 years of age on the date of commission of the crime. Accordingly, in compliance with the provisions of the Juvenile Justice Act, 200042 ( as amended and hereinafter referred to as ‘the Act’) his case was referred for inquiry to the Juvenile Justice Board. The other accused were tried in a regular sessions court and have been found guilty, inter alia, of the offences under Section 376 (2)(g)43 and Section 302 of the Indian Penal Code, 1860 (for short “the Penal Code”). 44 They have been sentenced to death by the learned trial court. Their appeal against the aforesaid conviction and the sentence imposed has since been dismissed and the death penalty has been confirmed by the High Court of Delhi.45 (i) whether the offence(s) allegedly committed by the juvenile is to be inquired into by the Board or the juvenile Before the Juvenile Justice Board to whom the case of Dinesh was referred for inquiry, the petitioners had filed applications for their impleadment to enable them to ‘prosecute’ the juvenile alongside the public prosecutor. The petitioners also claimed that, on a proper interpretation of the Act, the juvenile was not entitled to the benefits under the Act but was liable to be tried under the penal law of the land in a regular criminal court along with the other accused.46 However, insofar as the interpretation of the provisions of the Act for determination of the question whether the offence(s) allegedly committed by the juvenile is to be inquired into by the Board or the juvenile is required to be tried in a regular criminal court is concerned, 47 the Board had expressed its inability to decide the same and had directed the petitioners to seek a authoritative pronouncement on the said issue(s) from the High Court. 41 Fact sheet ∏1 42 The Juvenile Justice Act 2000 43 The Indian Penal Code 1860. 44 Ibid. 45 Fact sheet ∏ 9 46 Fact sheet 10 47 Wrobleski.M,Henry(2000) an introduction to law enforcement and criminal justice, Thomson learning,USA,pp- 540-541 WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 7 [3rd Manipal Moot Court Competition] [2017] Laying down an authoritative interpretation of Sections 2(I) and 2(k) of the Act 48 that the criterion of 18 years set out therein does not comprehend cases grave offences in general and of heinous crimes against women in particular that shakes the root of humanity in general. 49 50 That the definition of offences under Section 2(p) of the Act be categorized as per grievousness of the crime committed and the threat of public safety and order. (a) Alternative punishment and serious offences. That Section 28 of the Act be interpreted in terms of its definition, i.e., alternative punishment and serious offences having minimum punishment of seven years imprisonment and above be brought outside its purview and the same should be tried by an ordinary criminal court. Incorporating in the Act, the International concept of age of criminal responsibility and diluting the blanket immunity provided to the juvenile offender on the basis of age. That the instant Act be read down in consonance with the rights of victim as protected by various fundamental rights including Article 14 and 21 of the Constitution of India.” 51 (b) Remedies available under the act. “The Juvenile Justice Board the alternative remedies available under the Act52 should be exhausted in the first instance and in the course thereof the question neither challenging the provisions of Section 2(k)and 2(l) of the Act nor is he invoking the jurisdiction of the Court to strike down any other. provision of the Act or for interference of the Court to reduce the minimum age of juveniles fixed under the Act as 18 years has contended is that having regard to the object behind the enactment, the Act has to be read down to understand that the true test of “juvenility” is not in the age but in the level of mental maturity of the offender. This, it is contended, would save the Act from unconstitutionality and also further its purpose. 53 (ii) The degree/level of mental maturity and irrespective of the gravity of the crime 48 Ibid. 49 Chinte,C.l.(1949):fifty years of juvenile court. In M.Bell(Ed.)Current approaches to delinquency, New York: National Probation and Parole Association. 50 Ibid. 51 The Constitution of India, 1950. 52 Ibid. 53 Reckless, Walter, hand book of practical suggestions for the treatment of adult and juvenile offenders, government of India, 1956. WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 8 [3rd Manipal Moot Court Competition] [2017] The Act is not intended to apply to serious or heinous crimes committed by a juvenile. The provisions of Sections 82 and 83 of the Indian Penal Code 54have been placed to contend that while a child below 7 cannot be held to be criminally liable, the criminality of those between 7 and 12 years has to be judged by the level of their mental maturity. The same principle would apply to all children beyond 12 and upto 18 years also, it is contended. This is how the two statutes i.e. Indian Penal Code and the Act has to be harmoniously understood. The provisions of Section 1(4) of the Act which makes the provisions of the Act applicable to all cases of detention, prosecution and punishment of juveniles in conflict with law, to the exclusion of all other laws, would be unconstitutional if the Act is not read down.55 (a) Level of their mental maturity Specifically, contends that in that event the Act will offend Article 14 of the Constitution as all offenders below the age of 18 years irrespective of the degree/level of mental maturity and irrespective of the gravity of the crime committed would be treated at par. Such a blanket treatment of all offenders below the age of 18 committing any offence, regardless of the seriousness and depravity, is wholly impermissible under our constitutional scheme.56 The non-obstante provisions contained in Section 1(4) of the Act as well as the bar imposed by Section 7 on the jurisdiction of the criminal court to try juvenile offenders cannot apply to serious and heinous crime committed by juveniles who have reached the requisite degree of mental maturity, if the Act is to maintain its constitutionality. (b) Convention on the Rights of the Child. Reliance is also placed on Essa @Anjum Abdul Razak Memon vs. State of Maharashtra 57 to contend that the purport and effect of Section 1(4) of the Act must be understood in a limited manner. By referring to the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Jice, 1985 (Beijing Rules); the Convention of the Rights of the Child, 1990 (CRC) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 58 international commitments entered into by India obliges it to set up a particular framework to 54 The Indian Penal code, 1860. 55 Ibid. 56 Black law dictionary, (1999), seventh edition, west group. 57 AIR 2011 SCC 2875 58 1990(Havana Rules 1 (2013) 3 SCALE 11) WRITTEN SUBMISSION ON BEHALF OF THE APPELLANTS Page 9 [3rd Manipal Moot Court Competition] [2017] deal with juvenile offenders and such obligations can be more comprehensively met and effectuated by understanding the Act in the aforesaid manner. The practice in vogue in several foreign jurisdictions, particularly, in the U.K., USA and Canada for adjudicating criminal liability of young offenders has also been placed before the Court.59 B. THE PRACTICE OF STATUTORY EXCLUSION WHICH ENSURES THAT PERPETRATORS OF CERTAIN GRAVE OFFENCES ARE PROSECUTED AS ADULTS; ‘JUDICIAL WAIVER 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 such jurisdictions. (i) Section 28 of the Act be read together with Section 15 Also suggested that Section 28 of the Act be read together with Section 15 to enable the 60 alternatively higher punishment under other State/Central enactments, such as the IPC to be awarded to a juvenile offender. It is argued that this would incorporate the policy of concurrent jurisdiction of both ordinary criminal courtsand JJ Boards. Reliance in this regard is placed on the judgments of this Court in the case of Mithu Vs. State of Punjab and Dadu Vs. State of Maharashtra.61 It is argued that what the Act contemplates in place of a regular criminal trial is a non-adversarial inquiry against the juvenile where the prime focus is not on the crime committed but on the reasons that had led the juvenile to such conduct. (a) The existence of the criminal justice system The maximum power of ‘punishment’, on proof of guilt, is to send the juvenile to a special home for three years. The entire scheme under the Act being substantially different from what is provided 59 Ibid. 60 Caldwell: Criminology, p-357 61 2 (1983) 2 SCC 2773 (2000) 8 SCC 437. WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 10 [3rd Manipal Moot Court Competition] [2017] by the Code of Criminal Procedure for investigation of offences and for trial and punishment of offenders, it is submitted that the Act offends a core constitutional value namely, the existence of a criminal justice system. The proceedings against the juvenile Dinesh held by the JJ Board are, therefore, null and void and the said juvenile is liable to be tried by a competent criminal court in accordance with the procedure prescribed. In this regard, it is also submitted that the concept of double jeopardy under Article 20(3) of the Constitution and Section 300 of Penal Code62 will have no application inasmuch as the proceedings before the JJ Board did/does not amount to a trial. Contentions somewhat similar to what has been advanced by to explain the degree of constitutional flexibility that the Act would enjoy however goes a step forward to contend that the decision in Salil Bali vs. Union of India 63 will not be an inhibition for the Court to answer the question(s) raised as not only the issues arising 64 in Salil Bali are different but the said decision is founded on an entirely different legal perspective. what is contemplated by the Act is in furtherance othe country’s obligations arising from a series of international conventions to which India is a signatory. (ii) Legislative wisdom to treat all persons below18 as juveniles The Act is an expression of legislative wisdom to treat all persons below 18 as juveniles and to have an alternate system of dealing with such juveniles who come into conflict with law. The constitutional validity of the Act has been upheld by a Coordinate Bench in Salil Bali (supra) that psychological/mental, intellectual and emotional maturity of a person below 18 years cannot be objectively determined on an individual or case to case basis and the fixation of the Minimum Age of Criminal Responsibility 65 is a policy decision taken to give effect to the country’s international commitments. the Act does not provide a blanket immunity to juvenile offenders, as 62 Ibid. 63 4 (2013) 4 SCC 705 64 Supra. 65 (MACR) under the Act WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 11 [3rd Manipal Moot Court Competition] [2017] contended. What the Act contemplates is a different procedure to deal with such offenders. If found guilty, they are subjected to a different scheme of punishment. (b) The United Nations Convention on the Rights of the Child, 1990 The juvenile Dinesh, further submitted that the United Nations Convention on the Rights of the Child, 1990 read with the concluding Resolution of the Committee on Child Rights (constituted under the UN Convention) of the year 2000 qua India and the General Resolution of the year 2007 clearly contemplate the MACR as 18 years and mandates member States to act accordingly. The strength of the elaborate academic and research work placed on record has tried to persuade the Court to take the view that66 :- (1) Countries like U.K. Canada and USA have departed from the obligations under the UN Convention and are in breach of their international commitments. The incidence of crime by juveniles in those countries is very high which is not so in India. It is submitted that, of late, a re-thinking on the issue is discernible to demonstrate which reliance is placed on some recent pronouncements of the US Supreme Court, details of which will be noticed hereinafter.67 Kesho Ram and Others Vs. Union of India and Others68 holding that, “the binding effect of a decision of this Court does not depend upon whether a particular argument was considered or subsequently was actually decided in the earlier decision…” (para 10) the issue of res judicata was not even remotely raised before us. In the field of public law and particularly when constitutional issues or matters of high public interest are involved, the said principle would operate in a somewhat limited manner; in any case, the petitioners in the present proceeding were not parties to the decision rendered in Salil Bali.69 Therefore, we deem it proper to proceed, not to determine the correctness of the decision in Salil Bali (supra) but to consider the arguments raised on the point of law arising. While doing so we shall certainly keep in mind the course of action that judicial discipline would require us to adopt, if need be. 66 The United Nations Convention on the Rights of the Child, 1990 67 Ibid. 68 5 (1989) 3 SCC 151 69 Supra WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 12 [3rd Manipal Moot Court Competition] [2017] (b) self-imposed rule of judicial discipline Though in a somewhat different context we may remind ourselves of the observations of the Constitution Bench of this Court inNatural Resources Allocation, In Re, Special Reference No.1 of 2012670 extracted below:-“ The second limitation, a self-imposed rule of judicial discipline, was that overruling the opinion of the Court on a legal issue does not constitute sitting in appeal, but is done only in exceptional circumstances, such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and capable of causing public mischief. 71 For this proposition, the Court relied upon the judgment in Bengal Immunity case wherein it was held that when Article 141 lays down that the law declared this Court shall be binding on all courts within the territory of India, it quite obviously refers to courts other than this Court; and that the Court would normally follow past precedents save and except where it was necessary to reconsider the correctness of law laid down in that judgment. In fact, the overruling of a principle of law is not an outcome of appellate jurisdiction but aconsequence of its inherent power. This inherent power can be exercised as long as a previous decree vis-à-vis a lis inter partes is not affected. It is the attempt to overturn the decision of a previous case that is problematic, which is why the Court observed that: [Cauvery (2) case 72 “85. … Under the Constitution such appellate jurisdiction does not vest in this Court, nor can it be vested in it by the President under Article 143.”73 C. INTELLECTUAL MATURITY OF AN ADOLESCENT IS DIFFERENT FROM EMOTIONAL OR SOCIAL MATURITY WHICH MAKES AN ADOLESCENT MATURE FOR SOME DECISIONS BUT NOT FOR OTHERS The issues arising and the contentions advanced therefore will have to be examined from the aforesaid limited perspective which we are inclined to do in view of the importance of the questions raised. 74It is further argued that intellectual maturity of an adolescent is different from emotional 70 6 (2012) 10 SCC 1 2 71 (AIR 1955 SC 661) 72 (1993 Supp (1) SCC 96 (2), SCC p. 145, para 85] 73 Ibid. 74 UNICEF(1985):united nations standard minimum rules for the administration of juvenile justice(Beijing Rules): new Delhi, UNICEF WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 13 [3rd Manipal Moot Court Competition] [2017] or social maturity which makes an adolescent mature for some decisions but not for others, a position also highlighted by the Act which pre-supposes the capacity of a child under 18 to consent for his adoption under Section 41(5) of the Act.75 On the said materials while the petitioners argue that the lack of uniformity of mental growth upto the relevant age i.e. 18 years would justify individualized decisions rather than treating adolescent as a class the opposite view advanced is that between the lower and the upper age, the age of 18 provides a good mid point of focus which may result in some amount of over-classification but that would be inevitable in any situation and a mid point reduces the chances of over classification to the minimum. These are the varying perceptions alluded to earlier.76 (i) Advantageous to now take note of the Juvenile Justice System working in other jurisdictions It may be advantageous to now take note of the Juvenile Justice System working in other jurisdictions. Pratap Singh vs. State of Jharkhand and Another.77 In other words, the Act must be interpreted and understood to advance the cause of the legislation and to confer the benefits of the provisions thereof to the category of persons for whom the legislation has been made no attempt on his part to challenge the constitutional validity of the Act, particularly, the provisions contained in Sections 2(k) and 2(l) of the Act and what he seeks is a mere reading down of the Act. It is not very difficult to understand the for the argument; to overcome what he perceives to be a bar to a direct challenge on account of the decision of this Court in Salil Bali .78But if the argument advanced if is to be carried to the fullest extent the implication is obvious. (a) The Act replaces the criminal justice system in the country If the Act is not to be read down, as urged, it will stand invalidated on grounds of unconstitutionality. The argument, therefore, is really the other side of the same coin which has been cast by who is more forthright in his challenge to the validity of the Act on the twin grounds already noticed, namely, that the Act would result in over-classification if all juveniles, irrespective 75 Juvenile justice system & rights of child,(2003) Paryas institute of juvenile justice,pp. 9-20 76 UNICEF(1989):united nations convention on rights of the child(1989), new Delhi, UNICEF 77 10 (2005) 3 SCC 551 78 Supra. WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 14 [3rd Manipal Moot Court Competition] [2017] of the level of mental maturity, are to be grouped in one class and on the further ground that the Act replaces the criminal justice system in the country and therefore derogates a basic feature of the Constitution.79 If the arguments are to be understood and examined from the aforesaid perspective, the conclusion is obvious – what the Court is required to consider, apart from the incidental and side issues which would not be of much significance, is whether the Act would survive the test of constitutionality if the same is not to be read and understood in the manner urged. 80 (b) blanket/flat categorisation of all juveniles Of course, if the constitutionality of the Act is to become suspect, the further question, as we have already indicated, is what should be the course of action that would be open to this Coordinate Bench in view of the decision in Salil Bali81 the relevant provisions of the Act i.e. Sections 1(4), 2(k), 2(l) and 782 must be read to mean that juveniles (children below the age of 18) who are intellectually, emotionally and mentally mature enough to understand the implications of their acts and who have committed serious crimes do not come under the purview of the Act. Such juveniles are liable to be dealt with under the penal law of the country and by the regular hierarchy of courts under the criminal justice system administered in India.83 This is what was intended by the legislature; a plain reading, though, shows an unintended omission which must be made up or furnished by the Court. It is further urged that if the Act is not read in the above manner the fall out would render the same in breach of Article 14 as inasmuch as in that event there would be a blanket/flat categorisation of all juveniles, regardless of their mental and intellectual maturity, committing any offence, regardless of its seriousness, in one homogenous block in spite of their striking dissimilarities.84 (ii) For saving a statute from being struck down on account of its unconstitutionality 79 Ibid. 80 Kumar, Narender (2003) constitutional law of India, pioneer publication, Delhi 81 Supra. 82 supra 83 National crime records Bureau, Report, 2007, New Delhi. 84 Juvenile Delinquency, World Youth Report,2003,pp,200-201 WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 15 [3rd Manipal Moot Court Competition] [2017] A classification beyond what would be permissible under Article 14 in as much as the result of such classification does not further the targeted object i.e. to confer the benefits of the Act to persons below 18 who are not criminally responsible in view of the low level of mental maturity reached or achieved. 85 This, in substance, is also the argument of the view of Sawant, J. (majority view) in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Others86 which succinctly sums up the position is, therefore, extracted below. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality.87 It is an extension of the principle 88that when two interpretations are avowed object is to ensure their rehabilitation in society and to enable the young offenders to become useful members of the society in later years.89 India has accepted the above position and legislative wisdom has led to the enactment of the JJ Act in its present form. If the Act has treated all under 18 as a separate category for the purposes of differential treatment so far as the commission of offences are concerned, we do not see how the contentions advanced by the petitioners to the contrary on the strength of the thinking and practices in other jurisdictions can have any relevance.90 (a)Difference between the criminal justice system and the system for dealing with offenders under the JJ Ac In the earlier paragraphs of this report we have analyzed in detail the difference between the criminal justice system and the system for dealing with offenders under the JJ Act.91 The Act does not do away or obliterate the enforcement of the law insofar as juvenile offenders are concerned. The same penal law i.e. Indian Penal Code apply to all juveniles. The only difference is that a different scheme for trial and punishment is introduced by the Act in place of the regular provisions under the Code of Criminal Procedure for trial of offenders and the punishments under the Indian 85 Ibid. 86 11 1991 Supp. (1) SCC 600The 87 Gabriela Mistral, Nobel Prize winning poet from Chile. 88 Ibid. 89 Ahuja, Ram (2000): social problems in India, Jaipur, Rawat publications, pp.342. 90 Ram Dhani: role of various agencies in combating juvenile delinquency, bureau of police research and development, pp. 1-5 91 Ibid. WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 16 [3rd Manipal Moot Court Competition] [2017] Penal Code. The above situation is vastly different from what was before the Court in Mithu 92and also in Dadu (supra). In Mithu (supra) a separate treatment of the accused found guilty of a second incident of murder during the currency of the sentence for an earlier offence of murder was held to be impermissible under Article applicability of the provisions of Article 20(3) of the Constitution and Section 300 of the Code of Criminal Procedure to the facts of the present case as on the view that we have taken no question of sending the juvenile – Dinesh to face a regular trial can and does arise.93 (b) Extent of serious crimes committed by juveniles Before parting, we would like to observe that elaborate statistics have been laid before us to show the extent of serious crimes committed by juveniles94 and the increase in the rate of such crimes, of late. We refuse to be tempted to enter into the said arena which is primarily for the legislature to consider. Courts must take care not to express opinions on the sufficiency or adequacy of such figures and should confine its scrutiny to the legality and not the necessity of the law to be made or continued. Supreme Court of the United States has delineated these limitations in United States v. Butler 95 thus: “The power of Courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that Courts are concerned only with the power to enact statutes, not with their wisdom.96 The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self-restraint For the removal of unwise laws from the statute books appeal lies not to the Courts but to the ballot and to the processes of democratic Government.”97 92 Supra 93 Ibid. 94 The juvenile act, 2000. 95 (1936) 297 US 1 96 See National Capital Law Journal, vol-X-XI,2005-2006, Delhi university 97 Juvenile Justice Act, 2000, universal law publication, New Delhi. WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 17 [3rd Manipal Moot Court Competition] [2017] 3. WHETHER THE CRIMINAL APPEAL FILED IN SUPREME COURT BY THE ENTIRE CONVICT TOOK FOLLOWING OBJECTIONS AMONGST OTHERS As the argument commenced with the said note, we thought it appropriate to grant liberty to the learned counsel for the appellants to challenge the conviction and the imposition of death sentence from all aspects and counts and to dissect the evidence and project the irregularities in arrest and investigation. Learned counsel for the parties argued the matter for considerable length of time and hence, we shall deal with every aspect in detail.98 (i) Delayed registration of FIR; Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused.99 Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay.100 Bombay High Court - Aniruddha vs State on 21 November, 2009101 The inordinate delay in filing F.I.R. can be one of the grounds to quash F.I.R. and further proceedings. (ii) Non-mentioning of names of assailants in the F.I.R.; The FIR does not contain: (i) the names of the assailants either in the MLC, Ex.PW-51/A, or in the complaint, Ex.PW-1/A, (ii) the description of the bus and (iii) the use of iron rods. The FIR does not whisper about the use of the iron rods. It is only a after thought to add this words. If one part of the story of the prosecution is false the remaining part of the story should also be false. 102 98 Ibid. 99 Fact sheet ∏12 100 Black's Law Lexicon, 4th Edn., p. 177 101 (2009) 4 SCC 654. 102 Fact sheet 13 WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 18 [3rd Manipal Moot Court Competition] [2017] Prosecution story–one part false–remaining also false Hari Dev Sharma Last Para…The prosecution case was one integrated story vs State 103 which the trial court had accepted. If the Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part, which did not stand by itself, could be accepted. (iii) Inconsistencies and omissions amounting to contradictions in the testimony of PW-1. After the incident, PW-1 and the prosecutrix were dragged to the front door (because the rear door was jammed)104 and were pushed out of the moving bus opposite Hotel Delhi . 105 After being thrown outside, the bus was turned in such a manner as to crush both of them but PW-1 pulled the prosecutrix and himself out of the reach of the wheels of the bus and saved their lives.106 The statement of the informant, PW-1, was recorded by PW-74 in the early hours 107of 17.12.12. There are contradictions among the witnesses. 108 Explanation probable and reasonable – Two Views Subramanian vs Para 7:- The accused was made to believe that the payment State Of TN109 was towards lease rent due to the temple, he cannot be said to have committed any offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted, 103 (1977) 3 SCC 352 104 Supra 105 Ibid. 106 Bharti, Dalbir (2005). The Constitution and criminal justice administration. APH Publishing. p. 320. 107 Ibid. 108 Supra 109 Appeal(crl.)186 of 2000 Supreme Court WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 19 [3rd Manipal Moot Court Competition] [2017] Para 10 .. If two views were possible from the very same evidence, it cannot be said that the prosecution had proved beyond reasonable doubt that the appellant had received the sum of Rs. 200/- as illegal gratification. (iv) Recovery of the Car and other items on personal search and statements of disclosure leading to recovery; The endeavour of the prosecution was to first check the route and get a clue of the bus. For the aforesaid purpose, the CCTV footage becomes quite relevant. The story starts from the Select City Walk Mall, Saket and hence,110 we have to start from there. As per the case of the prosecution, the informant and the prosecutrix111 had gone to Select City Walk Mall, Saket to see a film. The CCTV footage produced by PW-25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-1 and PW-25/C-2, and the photographs, Ex.PW-25/B-1 to Ex.PW- 25/B-7, are evident of the fact that the informant and the prosecutrix were present at Saket till 8:57 p.m. (v) Admissibility and acceptability of the dying declaration of the prosecutrix when no names were spelt out; At this stage, it would be immensely seemly to appreciate the acceptability and reliability of the dying declaration made by the prosecutrix. The circumstances in this case, as is noticeable, makes the prosecution bring in three dying declarations.112 the three dying declarations made by the prosecutrix vary from each other and the said variations clearly reveal the inconsistencies The sudden appearance of the name ‘Vipin’ in the third dying declaration after the recording of Akshay’s disclosure statement where he mentions a person named Vipin is alleged to be indicative of the fact that the dying declaration is, in fact, doubtful.113 110 Ibid. 111 Ibid. 112 Ibid. 113 Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47: 1978 SCC (Cri) 485, 488 WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 20 [3rd Manipal Moot Court Competition] [2017] Supreme Court of India - Kushal Rao vs The State Of Bombay on 25 September, 1957 114Question of fact Dying declaration evidiantry value of - It must be corroborated in order to sustain conviction Constitution of India, Art. 134(1)(c)- Indian Evidence Act It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood was ebbing away; or because the statement has not been properly recorded, for example, the statement bad been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circum- stances which can be said to detract from the value of a dying declaration.115 (vi) Insertion of the iron rod in the rectum and vagina after rape by all the convicts; we shall advert to the contentions raised as regards the use of iron rod for causing recto-vaginal injury. 116 The case of the prosecution is that the accused, in most inhumane and unfeeling manner, inserted iron rod in the rectum and vagina of the prosecutrix and took out the internal organs of the prosecutrix from the vaginal and anal opening while pulling out the said iron rod. They also took out the internal organs of the prosecutrix by inserting iron rod in the vagina of the prosecutrix thereby causing dangerous injuries. the use of iron rods by the accused on the ground that the informant as well as the prosecutrix did not mention about the use of iron rods in their first statements. The main contention of the accused is that the prosecutrix herself, in her first statement given to Dr. Rashmi Ahuja, PW-49, Ex. PW-49/A, failed to disclose the use of iron rods.117 (vii) There was no criminal Conspiracy; 114 Equivalent citations: 1958 AIR 22, 1958 SCR 552 115 Ibid. 116 Ibid. 117 Fact sheet ∏16 WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 21 [3rd Manipal Moot Court Competition] [2017] The next aspect that we intend to address pertains to criminal conspiracy. The accused persons before us were charge-sheeted for the offence of criminal conspiracy within the meaning of Section 120A IPC 118apart from other offences. The trial court found all the accused guilty of the offence under Section 120B IPC. The proviso to Section 120A engrafts a limitation that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.119 The ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy.120 A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement.121 118 The Indian Penal Code, 1860. 119 Ibid. 120 Ibid. 121 Mowu v. Suptd., Special Jail, 1972 SCC (Cri) 184, 189:(1971) 3 SCC 936 WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 22 [3rd Manipal Moot Court Competition] [2017] (viii) Age of Dinesh was 17 years and 10 months as per Matriculation School Certificate against medical certificate of 18 years 8 months. The matriculation school certificate ought to be considered. Diensh ought to be sent to the juvenile court only. Mukesh & Anr. …Appellants Vs State for NCT of Delhi…122Respondents In this case the Supreme Court had upheld that the minor accused shall be sent to juvenile court only. 122 CRL A. NOS. 607-608 OF 2017 WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS 16 [3rd Manipal Moot Court Competition] [2017] PRAYER Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments advanced, it is most humbly prayed and implored before the Honourable Court, that it may be graciously pleased to adjudge and declare that - 1. The appeal is maintainable in this hon’ble court. 2. The juvenile offender to convict in jail is unlawful. 3. The above objection raised is valid in accordance with the law. And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice, Fairness, Equity & Good Conscience. For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray. Date: …………………… Place ………………… sd/- (Counsel for Appellants) WRITTEN SUBMISSION ON BEHALF Page OF THE APPELLANTS xv
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