Beruflich Dokumente
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Team Code:
Before
THE HONBLE SUPREME COURT OF EUREKA
IN THE MATTER OF
v.
TABLE OF CONTENT
INDEX OF AUTHORITIES .V
PRAYER.....XXX
1. The Appeal filed by the Appellants is Maintainable under Art. 136 of the Indian
Constitution ......XV
1.1 There is substantive question of law of general public importance.
1.2 There is substantial and grave injustice.
2. The Case of the Appellant No. 1 (David) is liable to be remanded back to the
Juvenile Board Committee .....XVIII
2.1 There is Violation of provisions of Juvenile Justice Act, 2000 and
Juvenile Justice Rules, 2007
3. The Punishment of the Appellant No. 2 (Ujwal Purohit) should be suspended
.....XXX
3.1 In the present case evidence pertaining to the common intention among
appellants.1 and 2 is absent.
3.2 There is no evidence relating to the planning or meeting of minds
between both the appellants.
LIST OF ABBREVATIONS
Abbreviation
Meaning
&
And
Crim.L.J.
S.C.C.
A.I.R.
Cr. PC
v.
Versus
IPC
JJ Act
JJ Rules
JB
w.e.f
Vol.
Volume
Ed.
Edition
i.e.,
That Is
Id.
Ibid
L.J.
Law Journal
Cri
Criminal
No.
No.
Art.
Article
JBC
SC
Supreme Court
HC
High Court
U/s.
Under Sections
Sec.
Section
IPC
Govt.
Government
Limited
A.L.D.
JBC
M.P.
Madhya Pradesh
U.P.
Uttar Pradesh
H.P.
Himachal Pradesh
Anr.
Another
Ors.
Others
S.C.R.
Supp. S.C.R.
M.L.J.
ALL CC
A.L.J.
Cal.
Calcutta
D.L.T.
I.L.R
J.L.J.
S.C.A.L.E.
INDEX OF AUTHORITIES
CASES REFERRED AND CITED:1. A.V. Papayya Sastri v. Govt. of A.P., A.I.R. 2007 SC 1546 : (2007) 4 S.C.C. 221
2. Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 S.C.C. 120
3. Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., A.I.R. 1950 SC 750 : (2005) 3 S.C.C.
241
4. Diwan Bros. v. Central Bank of India., A.I.R. 1976 SC 1503.
5.
East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) S.C.C. 29
6.
BOOKS REFERRED:1. 2 R. N. CHOUDHRY, LAW RELATING TO J UVENILE J USTICE IN INDIA (R. P. Kataria &
S.K.A. Naqvi eds., 2nd ed. 2008)
2. S. P. SEN GUPTA, SARKAR & J USTICE KHASTGIR
ON INDIAN
OF
STATEMENT OF JURISDICTION
ART.1361
(SPECIAL
LEAVE
PETITION)
OF
THE
INDIAN
Special Leave to appeal by the Supreme Court 1. Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India.
2. Nothing in this clause (1) shall apply to any judgment, determination, sentence, or order passed or made
by any court or tribunal constituted by or under any law relating to the armed forces.
STATEMENT OF FACTS
For the sake of brevity and convenience of the Honble Court the facts of the present case are
Summarized as follows:
On 21st August 2014, The Appellants David and Ujwal Purohit have approached the
Honble Supreme Court of Eureka for the remanding of the case to the Juvenile Board and
Suspension of the punishment respectively.
History of the Case:1. David is 17 years old boy who is an orphan brought up at Bosconet Eureka, a government
funded orphanage in the vicinity of District Guradom, Waldhiem State, in the Republic of
Eureka. The Orphanage is Controlled and administered by the government of Eureka and
was maintained by Mr. K Raju.
2. David being orphan he is very Stoic and Introvert and has never been found in the
company of studious orphans. Ujwal Purohit is 15 years old and son of Mr. K Raju.
3. On 13th March, 2015, when only David and Ujwal Purohit were there in the orphanage
with the security guards, they planned to visit an exhibition organized by some NGO in
the nearby village. Since the warden and other authorities were not present at the
orphanage and couldnt have been contacted, the security guards refused them to go
outside.
4. Ujwal Purohit being shrewd and crook persuaded David to come along and climb the wall
of the orphanage and accompanies him for the exhibition. Both without coming into the
notice of the security guards climbed the wall and ran away.
5. In the exhibition Ujwal Purohit had a quibble with a child named Mohan to buy the same
toy gun. The quibble turned into a quarrel and then into a fight, David accompanied Ujwal
Purohit and took an iron rod and aggressively stroked on the head of the due to which he
got fainted.
6. Ujwal Purohit understanding the circumstances fled from the place immediately but David
was caught as he kept standing over there. He was given to the police and was arrested
ISSUES RAISED
The following questions are presented for adjudication in the instant matter:
SUMMARY OF ARGUMENTS
THE
PUNISHMENT
OF
APPELLANT
NO.
SHOULD
BE
SUSPENDED.
The counsel humbly submits that the punishment of appellant No. 2 be suspended. It can be
contended on the basis of direct as well as circumstantial evidences which are not able to
prove the factor of application of Common intention in the present case. The fact that the
appellant No. 2 was just involved in a fight about a toy gun at the exhibition had nothing to
relate to his ultimate planned aim to be causing grievous hurt to the deceased i.e., Mohan.
From the facts it is evident that his actions during the committing of offence were merely due
to his presence when the appellant no. 1 committed the offence. It is further contended that
fleeing of the appellant from the crime site does not amount to any kind of planning and also
ARGUMENTS ADVANCED
Supra note 1
id
4
Juvenile Justice (Care and Protection) Act, 2000; w.e.f. April 1, 2001
5
Juvenile Justice (Care and Protection) Rules, 2007; w.e.f. October 26, 2007; w.e.f October 26, 2007
6
Diwan Bros. v. Central Bank of India, A.I.R. 1976 SC 1503.
7
East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) S.C.C. 29
8 th
5 Vol. Durga Das Basu, Commentaries on the Constitution of India, (8th Edition, 2009)
3
Supra note 1
Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 S.C.C. 120
11
Pawan Kumar v. State of Haryana (2003)11 S.C.C. 241 ; See also, Durga Das Basu, Commentaries on the
Constitution of India, 5th 5528 at 5755 (8th Edition, 2009)
12
Supra note 4
13
Supra note 5
10
14
17
Section 2 (K) of JJ Act, 2000 defines Juvenile as juvenile or child means a person, who has not
completed eighteen years of age.
18
Submission made by Appellant No. 1 in the Sessions Court - the court has no jurisdiction to try his case,
him being a juvenile.
19
Supra note 4
20
Supra note 5
21
Amit v. State of U.P.; 1998 (2) ACC 850 : 2002 CriLJ 1248 (All)
22
Supra note 4
23
Supra note 5
2.1. VIOLATION OF PROVISIONS OF JJ ACT, 2000 AND THE PROVISIONS OF JJ RULES, 2007
The counsel humbly submits that the Sessions court has caused abuse of power by
violating Sec. 7 (A) of JJ Act, 2000 which is a mandatory provision which is to be
followed by all courts in the territory of India, whenever a claim of juvenility is raised
before them. It is contended that Sessions judge has a power to conduct the inquiry to
determine whether the juvenile in conflict with law is a juvenile or not24.
The counsel seeks attention of the Honble court on Section 7 (A) of JJ Act, 200025
which reads as Procedure to be followed when claim of juvenility is raised before
any court
1. Whenever a claim of juvenility is raised before any court or a court is of the opinion
that an accused person was a juvenile on the date of the commission of the offence,
the court shall make an inquiry, take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and shall record a finding
whether the person is a juvenile or a child or not, stating his age as merely as may
be:
Provided that a claim of juvenility may be raised before any court and it shall be
recognized at any stage, even after final disposal of the case, and such claim shall be
determined in terms of the provisions contained in this Act and the rules made there
under, even if the juvenile has ceased to be so on or before the date of commencement
of this Act.
2. If the court finds a person to be a juvenile on the date of commission of the offence
under sub-section (1), it shall forward the juvenile to the board for passing
appropriate order, and the sentence if any, passed by a court shall be deemed to have
the effect.
Before proceeding further the counsel would also like to bring into light clauses (1), (2) and
(3) of Rule 12 of the JJ Rule, 2007 which read as Procedure to be followed in
determination of Age.
1. In every case concerning a child or a juvenile in conflict with law, the court or the Board
24
25
Inserted vide Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, Sec.8
or as the case may be the Committee referred to in rule 19 of these rules shall determine
the age of such juvenile or child or a juvenile in conflict with law within a period of
thirty days from the date of making of the application for that purpose.
2. The court or the Board or as the case may be the Committee shall decide the juvenility
or otherwise of the juvenile or the child or as the case may be the juvenile in conflict
with law, prima facie on the basis of physical appearance or documents, if available,
and send him to the observation home or in jail.
3. In every case concerning a child or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining
A) (I) the matriculation or equivalent certificates, if available; and in the absence
whereof;
(II) The date of birth certificate from the school (other than a play school) first
attended; and in the absence whereof;
(III) The birth certificate given by a corporation or a municipal authority or a
Panchayat;
B) And only in the absence of either (I), (II) or (III) of clause (A) above, the medical
opinion will be sought from a duly constituted Medical Board, which will declare the
age of the juvenile or child. In case exact assessment of the age cannot be done, the
Court or the Board or, as the case may be, the Committee, for the reasons to be
recorded by them, may, if considered necessary, give benefit to the child or juvenile
by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such
evidence as may be available, or the medical opinion, as the case may be, record a
finding in respect of his age and either of the evidence specified in any of the clauses (A)
(I), (II), (III) or in the absence whereof, clause (b) shall be the conclusive proof of the
age as regards such child or the juvenile in conflict with law.
It is contended that even if we say that the inquiry was conducted by the Sessions Court to
determine the age of the juvenile based on the procedure mentioned in Sec. 7 (A) and by
[Possibility 1]
That the Sessions Court relied on the evidence produced before it under Rule 12 clauses (1),
(2) and Clause 3 Sub-clause (a) of JJ Rules, 2007, which is not so in the present case as there
is no mention of any evidence being produced before the Sessions Court regarding the age of
Appellant No. 1(i.e., David), such as Matriculation Certificate, Certificate of Date of Birth
from the school first attended, or the birth certificate given by a corporation or a municipal
authority.
[Possibility 2]
That the Sessions court did rely on the Clause 3 Sub- Clause (b) of JJ Rules, 2007 in the
absence of evidence under Clause 3 Sub Clause (a) of the JJ Rules, 2007 but was not still
satisfied and went on to conclude that there was insufficiency of evidence of age. Clause 3
sub clause (b) of the JJ Rules, 2007 mentions about the medical test which is to be
conducted by the JBC in the absence of any document as mentioned in the Clause 3 Sub
Clause (a) of the JJ Rules, 2007 since the fact sheet is silent on the issue as to whether the
evidences pertaining to the age of Appellant were submitted to the Sessions Court therefore it
can be concluded that the Sessions Court must have gone to the last resort of conducting the
medical inquiry of the appellant, so that a conclusive decision would have come out and the
age of the juvenile would have been determined to overcome the insufficiency of the
evidence. The medical inquiry is also the part of procedure laid done in the Rule 12 of JJ
Rules, 2007, But in the present case there is no as such mention of the Medical Enquiry being
done by the Sessions Court. Therefore, it is safe to contend that medical enquiry was not
conducted by the Sessions court and the Sessions court has erroneously rejected the
submission of the Appellant without going into the intricacies of the case.
The Counsel further submits that in the case of delinquent juvenile the matter has to be
determined in totality i.e., in case of two views of the competent authority regarding the age
of juvenile and even after conducting the proper inquiries relating to his age the competent
26
Supra note 5
27
3. WHETHER
THE
PUNISHMENT
OF
APPELLANT
NO.
SHOULD
BE
SUSPENDED.
The counsel most humbly submits before the Honble court that the punishment of Appellant
No. 2 (i.e., Ujwal Purohit) should be suspended as there is improper evidence to prove him
guilty U/s 30432/32633 read with Sec. 3434 of Indian Penal Code, 1860. It is contended that the
Appellant No. 2 (Ujwal Purohit) has been charged along with Appellant No. 1 (i.e., David)
U/s 30435 / 32636 read with Sec. 3437 of the IPC, 186038 . The counsel further submits that the
decision taken by JBC in awarding the punishment to Appellant No. 2 U/s 304 / 326 read
with Sec. 34 of the IPC, 1860 and sending him to the remand home for a period of one and a
half years is not justified and is thus, incorrect in law. It is contended that criminal law has a
well settled principle which says that until and unless a person is proven guilty he stand
innocent in the eyes of law.
It is further contended that in the case of Sakha Ram v. State of M.P.39 the Honble Court
held that
When the presumption of juvenile innocence is sought to be displaced by the
prosecution on the basis of circumstantial evidence the circumstances must
32
Sec. 304, I.P.C.,1860: Punishment for culpable homicide not amounting to murder: Whoever commits
culpable homicide not amounting to murder, shall be punished with [imprisonment f or life], or imprisonment of
either description f or a term which may extend to ten years, and shall also be liable to fine, if the act by which
the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to
cause death; or with imprisonment of either description f or a term which may extend to ten years, or with fine,
or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is likely to cause death.
33
Sec. 326, I.P.C.,1860 : Voluntarily causing grievous hurt by dangerous weapons or means: Whoever, except
in the case provided f or by Section 335, voluntarily causes grievous hurt by means of any instrument f or
shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or
by means of f ire or any heated substance, or by means of any poison or any corrosive substance, or by means of
any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to
swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment f or
life], or with imprisonment of either description f or a term which may extend to ten years, and shall also be
liable to fine.
34
Sec. 34, I.P.C., 1860: Acts done by several persons in furtherance of common intention.--When a criminal act
is done by several persons in furtherance of the common intention of all, each of such persons is liable for that
act in the same manner as if it were done by him alone.
35
Supra note 30
36
Supra note 31
37
Supra note 32
38
w.e.f October 6, 1860
39
1992 JIC 325 (SC)
is done in furtherance of a common intention of the persons who join in committing the
crime. Direct proof of common intention is seldom available and, therefore such
intention can only be inferred from the circumstances appearing from the proved facts
of the case and the proved circumstances. In order to bring home the charge of
common intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of mind of all the accused persons to
commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment; but it must necessarily be before the commission of
the crime. The true concept of Section is that if two or more persons intentionally do an
act jointly, the position in law is just the same as if each of them has done it
individually by himself.
Thus, relying on the above judgments it is contended that the present Sec. 34 is just a rule of
evidence and does not establish any offence in particular. Further it is contended that in the
present case there are no direct as well as circumstantial evidences which prove that the
Appellant no. 1 has committed the crime jointly and also that he participated in the crime
which is not so in the present case.
The Counsel, for further clarification of the Honble Court, would rely on the judgment
delivered by the Honble Court in the case of Suresh v. State of U.P.43 where the Honble
Court held that
to attract section 34 IPC, 1860 two postulates are indispensible: (1) The criminal act
(consisting of a series of acts) should have been done, not by one person, but more than
one person; (2) Doing of every such individual act cumulatively resulting in the
commission of criminal offence should have been in furtherance of the common
intention of all such persons.
The Counsel puts forth before the Honble Court, a similar case of Jai Bhagwan v. State of
Haryana44 where it was again held by the Honble Court thatTo apply Section 34, of IPC, 1860 apart from the fact that there should be two or more
accused, two factors must be established: (i) common intention and (ii) participation of the
accused in the commission of an offence.
43
44
(2001)3 S.C.C. 673: 2001 S.C.C. (Cri) 601; Jai Bhagwan v. State of Haryana : (1999)3 S.C.C. 102
(1999)3 S.C.C. 102
Common intention can be proved either from direct evidence or by inferring from the acts or
attending circumstances of the case and conduct of the parties45.Here the Counsel humbly
submits before the Honble Court the facts of the case relating to the events that occurred
when the offence was committed by the accused does not seem to attract the application of
Sec. 34 in the present case. It is clearly mentioned that, In the exhibition Appellant no. 2
(Ujwal Purohit) had a quibble with a child of his peer named Mohan (son of a well known
businessman) as both of them wanted to buy the same toy gun.. Thus, the main reason for
the quibble between Appellant No. 2 and Mohan was acquiring of the toy gun. This quibble
turned out to progress into a fight but the fact sheet remains silent about any kind of use of
violence by the Appellant No. 2 (i.e., Ujwal Purohit). The is also unable to showcase any
intention on the part of Appellant No. 2 of voluntarily causing any grievous hurt46 to the
deceased (i.e., Mohan). In the case of Rajesh Govind Jagesha v. State of Maharashtra47 the
Honble Court that common intention may also develop during course of events. But, in the
present case nothing mentioned in the compels us to turn our thoughts towards the fact that
the fight had come to such a level that Appellant No. 2 decided to give a death blow to the
deceased. Thus, the Counsel submits that the acts of Appellant No. 2 confines only to the
extent of indulging into a fight and not voluntarily causing grievous hurt as complementary to
Appellant No.1 (i.e., David) act.
45
Pradeep Kumar v. Union of Admn: (2006) 10 S.C.C. 608: A.I.R. 2006 SC 2992: 2006 Crim.L.J. 3894
Sec. 326, IPC, 1860
47
(1999)8 S.C.C. 428: 1999 S.C.C. (Cri) 1452
46
48
3.2 THERE
The Counsel humbly submits before the Honble court that there is no evidence pertaining to
the sharing of common intention by both the appellants this implies does not constitute an
action in concert and that it does not constitutes the existence of a pre-arranged plan amongst
the perpetrators of the crime53. The establishment of a plan or a meeting of mind, whether
direct or circumstantial, is necessary to invoke Sec. 34 of IPC, 1860. In most cases it needs to
be gathered from the actions and circumstances of the commission of the act54. The Counsel
further contends that, in the present case, the factors of planning are absent. This can be most
likely contended through following points from the facts of the present case:
Ujwal Purohit had a quibble with a child of his peer named Mohan (son of a well known
businessman) as both of them wanted to buy the same toy gun.
When the quibble turned into a quarrel and eventually into a ght, David accompanied
Ujwal Purohit and took an iron rod and aggressively strike it on the head of Mohan.
Ujwal Purohit understanding the circumstances ed from that place immediately but
David was caught by the public as he kept standing there.
The only mention about existence of a plan in the is about the Appellants going to
visit the
exhibition and not indulging into a fight or causing grievous hurt to someone. Further, David
was not involved in the fight between Ujwal Purohit and Mohan pertaining to toy gun, and,
Ujwal Purohit was not involved, actively or passively, in the act of David striking on the head
of Mohan. Finally, the clause of meeting of mind between both the accused is absent as far as
the occurrence of crime is concerned, Ujwal Purohit flees away, committing to his own
53
54
55
PRAYER
Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the
Petitioners humbly submit that the Honble Supreme Court of Eureka be pleased to adjudge
and declare that:
1. The appeals filed under Art. 136 of the Indian Constitution are maintainable.
2. The case of Appellant No. 1 (i.e., David) should be remanded back to the Juvenile
Board Committee.
3. The punishment of the Appellant No. 2 (i.e., Ujwal Purohit) should be suspended.
And pass any other relief, that this Honble Supreme Court of Eureka may deem fit and
proper in the interest of justice, equity and good conscience.
For this act of kindness, the Petitioners shall duty bound forever pray.