TEAM CODE: P36

IN THE SUPREME COURT OF INDIANA

UNDER ARTICLE 134 AND 137 OF THE CONSTITUTION OF INDIANA

Cr. App. No. 1028 of 2018

&
CP No. 111 OF 2018

CASE CONCERNING OFFENCES UNDER SECTIONS 34, 120A, 120B, 300, 364, 375
& 376 OF THE INDIAN PENAL CODE, 1869
&
CASE CONCERNING INFRINGMENT OF FUNDAMENTAL RIGHTS DUE TO
PROHIBITION OF ENTRY OF WOMEN IN THE TEMPLE OF LORD
JOGESHWARA

CBI
(APPELLANT)
V.
Pt. KALICHARAN & Ors.
(RESPONDENTS)
&
Pt. KALICHARAN & Ors.
(PETITIONERS)
V.
STATE
(RESPONDENT)

THE CNLU GENERAL INTRA MOOT COURT COMPETITION 2019

JANUARY 2019

WRITTEN SUBMISSION ON BEHALF OF CBI AND STATE

 TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………………………i-ii
LIST OF ABBREVIATIONS...................................................................................................iii
INDEX OF AUTHORITIES………………………………………………………………….iv
LIST OF CASES...................................................................................................................v-ix
STATEMENT OF JURISDICTION…………………………………………………………..x
STATEMENT OF FACTS………………………………………………………………..xi-xii
STATEMENT OF ISSUES....................................................................................................xiii
SUMMARY OF ARGUMENTS…………………………………………………….…..xiv-xv
PLEADINGS ADVANCED…………………………………………………………………..1
1. Whether the Matter is Maintainable before the Hon’ble Supreme Court of
Indiana?.........................................................................................................................1
a. The Criminal Appeal is maintainable under the Article 134(1)(c) of the
Constitution of Indiana………………………………………………………...1
b. The Curative Petition filed under Article 137 is not maintainable before
Supreme Court of Indiana…………………………………………….……..2-3
2. Whether Prohibiting Women of a Particular Age Group from Entering Lord
Jogeshwara Temple is Violative of the Fundamental Rights Enshrined under the
Constitution of Indiana, and the Claim for the Exclusion of Women from
Religious Worship Founded in Religious Text, is Subordinate to the
Constitutional Values of Liberty, Dignity and Equality?......................................3-4
a. The said religious practice violates Right to Equality enshrined under Article
14 of the Constitution of Indiana…………………………………………....4-5
i. That there is no intelligible differentia behind the law….…………..5-7
b. That the said prohibition is in violation of Article 15 of the Constitution of
Indiana…………………………………………………………………………7
c. That the said prohibition is in violation of Article 17 of the Constitution of
Indiana……………………………………………………………………...7-11
d. That the said prohibition is in violation of Article 21 of the Constitution of
Indiana…………………………………………………………...………..11-12
e. That the said prohibition is in violation of Articles 25 and 26 of the
Constitution of Indiana……………………………………………...……12-20
i
 f. That the said prohibition is also in infirmity with the International
Conventions Indiana has ratified……………………………………….....20-21
3. Whether the Accused are Guilty of Abduction and Murder of Reema and Riya,
and the High Court of Arya Pradesh Erred in Acquitting Them?........................22
a. That all the five accused are guilty of the following offences beyond
reasonable doubt:……………………………………………………………..22
i. Abducting to murder (Section 364 IPC), Murder (Section 300
IPC)……………………………………………………………….22-31
ii. Common Intention (Section 34 IPC) and Criminal Conspiracy (Section
120A and 120B IPC)…………………………………………..….31-38
b. That the burden of proving the presence of dead body and murder weapons in
the sanctum sanctorum is on Pt. Kali Charan…………………………….38-39
4. Whether all Accused are Guilty for Committing Rape of Riya?...........................39
a. The accused are guilty of the offence…………………………………….…..39
i. Against her will or consent……………………………………….39-40
ii. Sexual Intercourse……………………………………………..….40-41
b. The Offence need not be Committed by Each and Every Accused……....41-43
c. The Prosecution has Proved its Case Beyond Reasonable Doubt……………43
i. Medical Evidence…………………………………………………43-44
ii. Statement of the Eye-Witness………………………………….…44-45
iii. Chain of Circumstances Established…………………………...…45-48
PRAYER FOR RELIEF……………………………………………………………………49

ii
 LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Anr Another

AP Andhra Pradesh

Art. Article

CrPC Code of Criminal Procedure, 1973

Ed Edition

HC High Court

Hon‟ble Honourable

IEA Indian Evidence Act, 1872

IPC Indian Penal Code, 1860

MP Madhya Pradesh

Ors Others

Pg. Page Number

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Report

Sec Section

UNCEDAW United Nations Convention on the Elimination of All Forms of

Discrimination Against Women
v versus

iii
 INDEX OF AUTHORITIES

1. The Constitution of India, 1950

Statutes and International Conventions

1. Convention on Elimination of all forms of Discrimination Against Women, 1979
2. Indian Evidence Act, 1872
3. The Code of Criminal Procedure, 1973
4. The Indian Penal Code, 1860

Books
1. B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968)
2. Basu Durga Das, Shorter Constitution of India (14th edition, 2009) Vol. II
3. Bhagava Rajeev, Politics and Ethics of the Indian Constitution (ed.), Oxford
University Press (2008), at page 15
4. Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
University Press (1999)
5. Jethmalani Ram & Chopra D.S., The Indian Penal Code (1st edition ,2014)
6. Jethmalani Ram & Chopra D.S., The Law of Evidence (1st edition, 2013) Vol. 1 & 2
7. Manohar & Chitaley, The Indian Penal Code (4th edition, 2006) Vol. 3 & 4

Dictionaries
1. The Shorter Oxford English Dictionary; Vol. II, Third Edition, Clarendon Press,
Oxford
2. Mitra;s Legal & Commercial Dictionary, Fifth Edition, Eastern Law House.
3. Jowitt‟s Dictionary of English Law (Second Edition), Volume 1 (1977)

iv
 LIST OF CASES

1. (1987) 2 Crimes 510 (512) : (1987) 2 Reports 28 (Madh Pra).....................................43

2. (1996) 3 crimes 328......................................................................................................23
3. (1996) 3 Rec Cri R 128 (132) : (1996) 3 All Cri LR 784 (P&H).................................42
4. (1997) 1 Cur Cri R 487 (489) (MP).............................................................................41
5. 2005(3) UC 2001 (2018) (DB) (Uttra).........................................................................42
6. 2006 (10) Scale 45........................................................................................................41
7. 2006 (2) Cal HN 455 (460)(DB)(Cal)..........................................................................42
8. 37 Cri LJ 205................................................................................................................23
9. Aghnoo Nagesia v State of Bihar, (1966) 1 SCR 134..................................................28
10. AIR 1979 SC 1410(1411)............................................................................................23
11. AIR 2007 SC (Supp) 49...............................................................................................40
12. Air India v NargeshMeerza, AIR 1981 SC 1829...........................................................7
13. Ajay Hasia v Khalid MujibSherarvardi, (1981) 1 SCC 722..........................................5
14. All LJ (NOC) 35 (DB) (All).........................................................................................23
15. Aman Kumar and Another v State of Haryana AIR 2004 SC 1497.............................41
16. Anil Sharma and ors v State of Jharkhand, Appeal (crl.) 622-624 of 2003................32
17. Anuj Garg and others v Hotel Association of India and others, (2008) 3 SCC 1..........7
18. Ashok Kumar v State of Haryana AIR 2003 SC 777...................................................42
19. Ayodhya Prasad v BhawaniShanker, AIR 1957 All 1 (FB).........................................36
20. Bakshi & Co. v Commissioner of Sales Tax UP, (2005) 3 SCC 398.............................2
21. Basan Singh v Janki Singh, AIR 1967 SC 341............................................................36
22. Basudev v State of Pepsu, AIR 1956 SC 488...............................................................30
23. Bengali Mandal v State of Bihar 2010 CrLJ 1420 SC.................................................33
24. Bhabha Nanda Barma v The State of Assam, AIR 1977 SC 2252...............................33
25. Bhagwan v State of Haryana, AIR 1999 SC 1083.......................................................32
26. Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684.........................42
27. Brathi alias Sukhdev Singh v State of Punjab (1991) 1 SCC 519 ...............................32
28. C. Chenga Reddy v State of Andhra Pradesh 1996 (10) SCC 193..............................45
29. Ch Pulla Reddy and ors v state of Andhra Pradesh, AIR 1993 SC 1899....................32
30. Chander Kala v Ram Kishan and Anr AIR 1985 SC 1268……………………………1
31. Chandra Prakash Shahi v State of UP & others, (2000) 5 SCC 152...........................30

v
32. CharuKhurana and others v Union of India and others, (2015) 1 SCC 192.................7
33. Chhotanney & Ors v State of Uttar Pradesh & Ors....................................................27
34. Commissioner of Police and Ors v Acharya JagadishwaranandaAvadhuta and Ors,
(2004) 12 SCC 770.......................................................................................................14
35. Crofter Hand Jweed Co. Ltd. v Veith, 1942 AC 435 (469)..........................................30
36. Delhi Transport Corporation v ShyamLal, AIR 2004 SC 4271..................................36
37. Dharam Das Wadhwani v State of Uttar Pradesh, AIR 1975 SC 241..........................34
38. Dr. Subramanyam Swami v Central Bureau of Investigation, (2014) 8 SCC 682.........6
39. DS Nakara v Union of India, (1983) 1 SCC 305...........................................................5
40. Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383............................12
41. EP Royappa v State of Tamil Nadu, 1974 SCC (L&S) 165...........................................5
42. Gade Lakshmi Mangraju v State of Andhra Pradesh, AIR 2001 SC 2677..................34
43. Gambhir v State of Maharashtra, 1982 (2) SCC 351..................................................24
44. Government of NCT of Delhi v Union of India, (2018) 8 SCALE 72............................8
45. Habeeb Mohammad v State of Hyderabad, AIR 1954 SC 51......................................29
46. Hanumant v State of Madhya Pradesh, AIR 1952 SC 343.....................................34,35
47. Harman Singh v M/s Bhushan Metallics Ltd. 2007 (2) Law Herald (P&H) 1272.......46
48. In re MuthukarungaKomar, AIR 1959 Mad 175.........................................................38
49. Indian Young Lawyers Association & Ors v The State of Kerala & Ors, Writ Petition
(Civil) No. 373 of 2006..................................................................................................3
50. Indu Jain v State of MP, (2005) 3 MPLJ 168 (MP).....................................................23
51. Jagta v State of Haryana, AIR 1974 SC 1545..............................................................34
52. Javed v State of Haryana, (2003) 8 SCC 369..............................................................16
53. Justice K.S. Puttaswamy and another v Union of India and others, (2017) 10 SCC
1....................................................................................................................................11
54. K.V. Chacki v State of Kerala, 2001 (9) SCC 277 ...................................................24
55. Kailash v State AIR 1979 SC 1711........................................................................... 46
56. Kamaljit Singh v State of Punjab 2007(2) Law Herald (P&H) (DB) 1449..................45
57. Kartarey & Ors v The State of UP, (1976) 1 SCC 172................................................28
58. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225..........................................5
59. Keshoram Bora v State of Assam, AIR 1978 SC 1096................................................37
60. Krishna PillaiSree Kumar v State of Kerala, AIR 1981 SC 1237...............................22
61. Kulvinder Singh v State of Haryana, 2011 AIR SCW 2394........................................37
62. KV Chacko v State of Kerala 2001 (9) SCC 277.........................................................24

vi
63. Lachhman Das v State of Punjab, 1963 AIR 222..........................................................6
64. Lakra v Union of India, AIR 2005 SC 1560..................................................................2
65. Mafabhai Nagarbhai Raval v State of Gujarat AIR 1992 SC 2186............................43
66. MaganChhaganlalPvt Ltd v Municipal Corporation of Greater Bombay,(1974) 2 SCC
402 .................................................................................................................................5
67. Maghar Singh v State of Punjab, (1975) 4 SCC 234...................................................38
68. Mahmood v State AIR 1976 SC 69..............................................................................46
69. Malleshi v State of Karnataka AIR 2004 SC 4865......................................................22
70. Maneka Gandhi v Union of India, (1978) 1 SCC 248..............................................5,11
71. Mange v State of Haryana AIR 1979 SC 1194 (1195)................................................44
72. Manoj Narula v Union of India, (2014) 9 SCC 1.........................................................14
73. Mohd. Chaman v The State 1998 CriLJ 3739 (3744) (DB) (Delhi).............................41
74. Mohd. Chaman v The State 1998 CriLJ 3739 (3744) (DB) (Delhi).............................41
75. Muthamma C.B (Miss) v Union of India, AIR 1979 SC 1868.......................................7
76. Nand Kishore v State of MP 2011 CrLJ 4243 SC........................................................33
77. Narayan Bhagwantrao GosaviBalajiwale v GopalVinayakGosavi, AIR 1960 SC
10..................................................................................................................................36
78. National Legal Services Authority v Union of India and others, (2014) 5 SCC
438................................................................................................................................11
79. Navtej Singh Johar and others v Union of India and others,(2018) 10 SCALE
386................................................................................................................................15
80. Nishi Kant Jha v State of Bihar, AIR 1969 SC 422.....................................................37
81. Nura v Rex, AIR 1949 All 710(713)............................................................................22
82. Pal Singh v state of Punjab (1969)3 SCC 196...............................................................2
83. Pandurang Tukia and Bhillia v State of Hyderabad 1955(1) SCR 1083.....................33
84. Parasram v Champalal, AIR 1957 MB 118................................................................36
85. Patel Ulka v Kalyan AIR 1971 SC 759………………………………………………..1
86. Pedala Veera Reddy v State of Andhra Pradesh AIR 1990 SC 79..............................45
87. People v McIlvain 55 Cal. App. 2d 322.......................................................................40
88. People‟s union for Civil Liberties v Union of India, (2005) 2 SCC 436.......................3
89. Polamuri Chandra Shekhararao v State of Andhra Pradesh, (2012) 7 SCC 706.......39
90. Pradeep Kumar v Union Administration Chandigarh AIR 2006 SC 2992.................42
91. Pramod Mahto v State of Bihar AIR 1989 SC 1457....................................................42
92. Priya Patel v State of MP and Another AIR 2006 SC 2639........................................39

vii
93. Public Prosecutor v Paneerselvan(1991) 1 Malayan LJ 106(Penang HC) .................28
94. R v Malapa Bin, 11 BHCR 196,198.............................................................................29
95. R v Warwickshall, (1783) Leach 263...........................................................................37
96. Raja Ram v State Cri. Appeal No. 211 of 2013...........................................................24
97. RamashishYadav v State of Bihar, 1999 (8) SCC 555.................................................31
98. Rangaswamy J. v Govt. of Andhra Pradesh, AIR 1990 SC 535....................................2
99. Re: Palani Goundan v Unknown AIR 1920 Mad 862 (867)........................................23
100. Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388................................................3
101. S. Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram
& Ors, AIR 1993 Ker 42......................................................................................................8
102. Sachin Jana & Another v State of West Bengal, 2008 (2) Scale 2 SC.......................32
103. Sardar Sydena Taher Saifuddin Saheb v State of Bombay, 1962 Supp. (2) SCR
496........................................................................................................................................8
104. Seshammal v State of Tamilnadu,[1972]3SCR815....................................................16
105. Shankaria v State of Rajasthan, AIR 1978 SC 1248..................................................37
106. Shakarlal Kacharbhai and ors v State of Gujarat, AIR 1965 SC 1260.....................33
107. Shayara Bano v Union of India and Others,(2017) 9 SCC 1.......................................5
108. Sidheswar Ganguly v The State Of West Bengal 1958 AIR 143…………...…….......2
109. Soma Bhai v State of Gujarat, AIR 1975 SC 1453....................................................28
110. Sri VenkatramanaDevaru v State of Mysore and Ors,1958 AIR 55.....................12,13
111. State of AP v M Sobhan Babu, 2011 CrLJ 2175 SC..................................................32
112. State of Assam v Abdul Noor and Ors.AIR 1970 SC 1365…………………………..1
113. State of Bengal v Anwar Ali Sarkar, 1952 AIR 75.......................................................6
114. State Of Bihar v Pashupati Singh & Anr & Vice Versa, AIR 1973 SC
2699(2701).........................................................................................................................23
115. State of Karnataka v Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081....................20
116. State of Karnataka v Mahabaleshwar Gourya Naik AIR 1992 SC 2043..................43
117. State of Orissa v Arjun Das, AIR 1999 SC 3229.......................................................31
118. State of Rajasthan v Rajaram, AIR 2003 SC 3601....................................................37
119. State of Tamil Nadu v Kutty, AIR 2001 SC 2778.......................................................37
120. State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840.......................................34
121. State of UP v Chhoteylal, AIR 2011 SC 697.............................................................40

viii
122. State of UP v Nahar Singh, AIR 1998 SC 1328.........................................................31
123. State of UP v Satish, 2005 (3) SCC 114.....................................................................35
124. State of UP v Nawab Singh (dead) and others, JT (2004) 2 SC 79...........................31
125. State v Sukhpal AIR 1984 SC 207.............................................................................46
126. Subramania Goundan v State of Madras, 1958 SCR 428..........................................37
127. Sucha Singh & Anr v State of Punjab, AIR 2003 SC 3617..................................22, 23
128. Sukumar Roy v State of West Bengal, 2006 (1) CHN 203.........................................34
129. Tara Devi v State AIR 1991 SC 342..........................................................................46
130. The Commissioner Hindu Religious Endowments, Madras v Shri Lakshmindra
Thritha [1954] SCR 1005...........................................................................................13, 17
131. Ujjagar Singh v State of Punjab, (2007) 13 SCC 90.................................................24
132. Velayuda Pulavar v State by Sub-Inspector of Police, AIR 2009 SC (Supp)
2307....................................................................................................................................37
133. Vikram Singh v State of Punjab, AIR 2010 SC 1007 ................................................34
134. Vishaka and others v State of Rajasthan and others, (1997) 6 SCC 241…………...20
135. Visvewaran v State Represented by SDM AIR 2003 SC 247.....................................44

ix
 STATEMENT OF JURISDICTION

1. The Hon‟ble court has jurisdiction to try the criminal appeal under Article 134 of the
constitution of Indiana.
2. The Hon‟ble court has jurisdiction to try the curative petition under Article 137 of the
constitution of Indiana
The present memorial submits, sets forth the facts, contentions and arguments on behalf of
the appellant in the criminal appeal number 1028 of 2018 and on behalf of the respondent in
the curative petition number CP 111 of 2018.

x
 STATEMENT OF FACTS

1. Indiana is a country in Central Asia comprising of 7 states, 70% of the population of

Indiana practices Hinduism. Arya Pradesh is the largest state of Indiana. 80% of the
people who reside in Arya Pradesh are followers of Lord Jogeshwara whose temple is
situated in Katra, the capital of Arya Pradesh.
2. It is considered that Lord Jogeswara depicts a „hyper-masculine God‟ who was born
out of the union of two male Gods. The deity is considered to be in the form of Yogi or
Bramhachari and since he is in the form of Nastik Brahamchari it is believed that
women from the age of 11 to 51 years should not worship in the temple so as to prevent
the deity from slightest deviation from celibacy and austerity. The Constitution of
Indiana also promotes secularism and thus on this basis the Upper House of Indiana
passed a resolution in 1985 directing the parliament to make lawto prohibit women
from entering the Lord Jogeshwara Temple. The parliament enacted the Lord
Jogeshwara Temple (Prohibition on Entry of Women) Act in 1985 which remained
enforced till 2016 and in the meantime it was renewed many times.
3. The pontiff of the temple was Pt. Ram Kishan and when he passed away in 2013 Pt.
Kali Charan was appointed as the new pontiff as the former pontiff had no sons. Pt.
Kali Charan had connections with the local politicians using which he appointed his
two sons Bhanu and Kalu as priests in the same temple. Three months after he was
appointed he made a contention that the prohibition of women which was earlier not to
offer prayers and worship in the temple should be extended and women should not be
allowed to enter the temple premises or go to any other land belonging to the
Jogeshwar Akhara.
4. Reema and Riya were the two daughters of Pt. Kali Charan who were law graduates
from National Law College, Katra. After graduating, they along with some other
women of Katra registered an NGO named “KADAM EK PEHAL” which had its
office at Mohini Bazar. On the 01.05.2013 they in the name of their NGO filed a PIL
before the Supreme Court of Indiana which sought some issuance to the government of
Arya Pradesh and Lord Jogeshwara Trust and District Magistrate of Katra to ensure
entry of women between the age of 11-51 in the Lord Jogeshwara Temple which was
denied to them on the basis of Lord Jogeshwara Temple (Prohibition on Entry of
Women) Act 1985.

xi
5. On 23rd December 2016 the Supreme Court passed the judgment with 2:1 majority and
allowed the petition filed by the NGO and held that every place of worship shall be
open to all classes and sections of people, women being one of them, irrespective of
any custom or usage to the contrary.” The court also held that prohibiting women from
entering the temple violates their fundamental rights.
6. After receiving the copy of judgement on 24.12.2016 the sisters along with some other
women tried to enter the temple to offer prayers. On their way they were stopped by
protesters which included both men and women, they also threatened them that if
anyone tried to transgress the sanctity of the temple they would face dire consequences.
The sisters reached the temple and there were thousands of people to stop them from
entering the pious temple. Pt. Kali Charan had also blocked the gate along with his two
sons and then he directed the other two priests Bhawani and Jagga to bring laathis from
the temple for teaching life lessons to women especially to Reema and Riya who were
trying to become leaders by trying to enter into the temple and committing a
disgraceful act.
7. On 29th of December Mrs Radha, mother of Reema and Riya informed the police that
her daughters had not returned home and requested them to lodge a complaint and start
the investigation. Although the police did not lodge FIR the search for sisters began.
While patrolling the police discovered a suspicious SUV in an abandoned jungle near
Mohini Bazar. Then at around 5:30 Pt. Kali Charan informed the police that a dead
body was lying near the Sanctum Sanctorum of the temple. The body was identified as
that of Reema and was sent for post mortem. After that Mrs. Radha lodged FIR against
Pt. Kali Charan, Bhanu, Kalu, Bhawani and Jagga. The Police arrested Pt. Kali Charan
and his sons from the temple, Jagga has been missing since and Bhawani was arrested
from his relative‟s house from a village outside Katra in absconding stage on January
11th, 2017.
8. The CBI Court found all the accused guilty and sentenced all of them to death, however
the High Court of Arya Pradesh, reversed the judgment and acquitted all of them. The
criminal appeal in this case lies against this judgment of the High Court. After the
acquittal order passed by the High Court of Arya Pradesh, Pt. Kali Charan filed a
Curative Petition in the name of Lord Jogeshwara Trust against the order of Supreme
Court passed in year 2016 allowing entry of women into Lord Jogeshwara Temple.

xii
 STATEMENT OF ISSUES

It is humbly pleaded before the Hon‟ble court that:

1. THAT THE CRIMINAL APPEAL IS MAINTAINABLE AND THE

CURATIVE PETITION IS NOT MAINTAINABLE.

2. THAT PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM

ENTERING LORD JOGESHWARA TEMPLE IS VIOLATIVE OF THE
FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF
INDIANA, AND THE CLAIM FOR THE EXCLUSION OF WOMEN FROM
RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS TEXT, IS
SUBORDINATE TO THE CONSTITUTIONAL VALUES OF LIBERTY,
DIGNITY AND EQUALITY.

3. THAT THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER OF

REEMA AND RIYA, AND THE HIGH COURT OF ARYA PRADESH ERRED
IN ACQUITTING THEM.

4. THAT ALL ACCUSED ARE GUILTY FOR COMMITTING RAPE OF RIYA.

xiii
 SUMMARY OF ARGUMENTS

1. THE CRIMINAL APPEAL IS MAINTAINABLE IN THE HON’BLE

SUPREME COURT WHEREAS THE CURATIVE PETITION IS NOT
MAINTAINABLE.
The Criminal appeal is maintainable as the matter involves a substantial question of law and
that miscarriage of justice has been done by the Hon‟ble High Court by acquitting the
accused.
The curative petition no 111 of 2018 is not maintainable as the petitioner failed to file a
review petition which is necessary before filing a curative petition. The curative petition no
111 of 2018 shall also be not maintainable as the petitioner failed to file a petition under
article 137 within thirty days from the date on which the receipt of copy of judgment was
given to them.
2. THE PROHIBITION OF WOMEN OF A PARTICULAR AGE GROUP FROM
ENTERING LORD JOGESHWARA TEMPLE IS VIOLATIVE OF THE
FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF
INDIANA, AND THE CLAIM FOR THE EXCLUSION OF WOMEN FROM
RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS TEXT, IS
SUBORDINATE TO THE CONSTITUTIONAL VALUES OF LIBERTY,
DIGNITY AND EQUALITY.
It is humbly pleaded before the court that the ban on entry of women in the premises of the
temple thus denying them their right to worship violates various fundamental rights given
under article 14, 15, 17, 21, 25 and 26 of the constitution and also violates the principles laid
down in the Convention on Elimination of all forms of Discrimination Against Women of
which Indiana is a signatory.
3. THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER OF REEMA
AND RIYA, AND THE HIGH COURT OF ARYA PRADESH ERRED IN
ACQUITTING THEM.
It is humbly pleaded before the court that the defendants are guilty of the charges of
abduction under sec 364 of IPC and for culpable homicide amounting to murder under sec
300 of both the deceased. The same can be deduced from the circumstantial evidence, direct
evidence, statement of witnesses, extra judicial confessional statement of one of the accused
and medical report.

xiv
 4. ALL ACCUSED ARE GUILTY OF RAPE OF RIYA.
It is humbly pleaded before the court that the accused are guilty of the charge of rape under
sec 375 & 376 of IPC. The same can be deduced from the circumstantial evidence, direct
evidence, statement of witnesses, extra judicial confessional statement of one of the accused
and medical report.

xv
<

PLEADINGS ADVANCED

1. WHETHER THE MATTER IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF INDIANA?
It is humbly submitted before the Hon‟ble Court that in the present matter; the Criminal
appeal is maintainable whereas the Curative Petition is not maintainable.
a. The Criminal Appeal is maintainable under the Article 134(1)(c) of the
Constitution of Indiana.
It is humbly pleaded before the court that the criminal appeal no 1028 of 2018 shall
be maintainable under art 134 of the Indian constitution.
Art 134(1)(c) states that an appeal shall lie to the Supreme Court from any judgment,
final order or sentence in a criminal proceeding of a High Court in the territory of
India if the High Court certifies under Article 134A that the case is a fit one for
appeal to the Supreme Court: Provided that an appeal under sub clause (c) shall lie
subject to such provisions as may be made in that behalf under clause ( 1 ) of Article
145 and to such conditions as the High Court may establish or require.
For granting an appeal under art 134(1) (c) the High Court must be satisfied that the
case involves some substantial question of law or principle. The certificate itself
should give an indication what substantial question of law or principle is involved in
the appeal.1
If the high court acted in a most perfunctory manner leading to great injustice and
acquitted an accused, the Supreme Court is justified in interfering with such order of
acquittal for preventing miscarriage of justice.2
It may be said that certificate should be granted only where there has been
infringement of an essential principle of justice3
The Supreme Court normally does not proceed to review the evidence in appeals in
criminal cases unless there is some illegality or grave irregularity or some serious
lapse on the part of the court below in marshaling or evaluating the evidence and
feels justified in adopting such a course in the larger interest of justice.4

1
State of Assam v Abdul Noor and Ors AIR 1970 SC 1365
2
Chander Kala v Ram Kishan and Anr AIR 1985 SC 1268
3
Sidheswar Ganguly v The State Of West Bengal 1958 AIR 143
4
Patel Ulka v Kalyan AIR 1971 SC 759

1|Page
 In deciding an appeal the Supreme Court has the same power as the high court has
and it is entitled to go into the merits of the case5

b. The Curative Petition filed under Article 137 is not maintainable before the
Supreme Court of Indiana.
It is humbly pleaded before the court that the Curative petition no 111 of 2018 shall
not be maintainable under art 137 of the Indian constitution.
Where the court has dismissed an appeal and a writ petition after fully hearing the
petitioner, a review would not be entertained merely on the ground that the Court
had not given its reasons on the contentions raised by the petitioner.6
Such a Curative Petition under the Court‟s inherent power can be filed, seeking
review of a decision which has become final after dismissal of a review petition
under article 137 on very strong grounds, such as,
1. Variation of the principle of natural justice-the right to be heard, as for example when
the affected person was not served notice or not heard during the proceedings.
2. A judge who participated in the decision-making process did not disclose his links
with a party to the case i.e. the question of bias.
3. Abuse of the process of the court.
The petitioner is entitled to relief ex debitio justitiae, if he establishes:
1. Violation of the principles of natural justice, in cases he was not a party to the lis but
the judgment adversely affected his interests or, if he was a party to the lis he was
not served with notice of the proceedings and the matter proceeded as if he had
notice.
2. Where in the proceeding, the learned judge failed to disclose his connection with the
subject matter or the parties giving scope for an apprehension of bias and the
judgment adversely affects the petitioner.
The petitioner in the curative petition shall aver specifically that the grounds
mentioned therein had been taken in the review petition and had been dismissed. In
the event of Bench holding at any stage that the petition is without any merit and
vexatious, it may impose exemplary costs on the petitioner.7

5
Pal Singh v state of Punjab (1969)3 SCC 196
6
Rangaswamy J. v Govt. of Andhra Pradesh, AIR 1990 SC 535
7
Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388; Lakra v Union of India, AIR 2005 SC 1560; Bakshi &
Co. v Commissioner of Sales Tax UP, (2005) 3 SCC 398

2|Page
 Since there is no violation of the principle of natural justice but the judgment given
was in furtherance of natural justice and there is no violations of the other two
conditions there are no reasons so as to reappraise the earlier findings of the court,
thus the curative petition is not maintainable.

2. WHETHER PROHIBITING WOMEN OF A PARTICULAR AGE GROUP

FROM ENTERING LORD JOGESHWARA TEMPLE IS VIOLATIVE OF
THE FUNDAMENTAL RIGHTS ENSHRINED UNDER THE
CONSTITUTION OF INDIANA, AND THE CLAIM FOR THE EXCLUSION
OF WOMEN FROM RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS
TEXT, IS SUBORDINATE TO THE CONSTITUTIONAL VALUES OF
LIBERTY, DIGNITY AND EQUALITY?
It is humbly submitted before the Hon‟ble Court that the case at hand asks important
questions of our conversation with the Constitution. It has also been held by the Hon‟ble
Apex Court in People’s union for Civil Liberties v Union of India8, that gender injustice,
pollution, environmental degradation, malnutrition, social ostracism of Dalits, etc. are
various forms of human rights violations. In a dialogue about our public spaces, it raises
the question of the boundaries of religion under the Constitution. The quest for equality is
denuded of its content if practices that exclude women are treated to be acceptable. The
Constitution cannot allow practices, irrespective of their source, which are derogatory to
women. Religion cannot become a cover to exclude and to deny the right of every woman
to find fulfillment in worship.9
In civic as in social life, women have been subjected to prejudice, stereotypes and social
exclusion. In religious life, exclusionary traditional customs assert a claim to legitimacy
which owes its origin to patriarchal structures. These forms of discrimination are not
mutually exclusive. The intersection of identities in social and religious life produces a
unique form of discrimination that denies women an equal citizenship under the
Constitution. Recognizing these forms of intersectional discrimination is the first step
towards extending constitutional protection against discrimination attached to intersecting
identities.

8
(2005) 2 SCC 436
9
Indian Young Lawyers Association & Ors v The State of Kerala & Ors, Writ Petition (Civil) No. 373 of 2006
(Judgment of Hon‟ble Justice DY Chandrachud)

3|Page
The Constitution seeks to achieve a transformed society based on equality and justice to
those who are victims of traditional belief systems founded in graded inequality. It reflects
a guarantee to protect the dignity of all individuals who have faced systematic
discrimination, prejudice and social exclusion. Construed in this context, the prohibition
against untouchability marks a powerful guarantee to remedy the stigmatization and
exclusion of individuals and groups based on hierarchies of the social structure. Notions of
purity and pollution have been employed to perpetuate discrimination and prejudice
against women. They have no place in a constitutional order. In acknowledging the
inalienable dignity and worth of every individual, these notions are prohibited by the
guarantee against untouchability and by the freedoms that underlie the Constitution.
The Constitution embodies a vision of social transformation. It represents a break from a
history marked by the indignation and discrimination attached to certain identities and
serves as a bridge to a vision of a just and equal citizenship. In a deeply divided society
marked by intermixing identities such as religion, race, caste, sex and personal
characteristics as the sites of discrimination and oppression, the Constitution marks a
perception of a new social order. This social order places the dignity of every individual at
the heart of its endeavours. As the basic unit of the Constitution, the individual is the focal
point through which the ideals of the Constitution are realized.
The Constitution protects the equal entitlement of all persons to a freedom of conscience
and to freely profess, protect and propagate religion. Inhering in the right to religious
freedom is the equal entitlement of all persons, without exception, to profess, practice and
propagate religion. Equal participation of women in exercising their right to religious
freedom is recognition of this right. In protecting religious freedom, the framers subjected
the right to religious freedom to the overriding constitutional postulates of equality, liberty
and personal freedom in Part III of the Constitution. The dignity of women cannot be
disassociated from the exercise of religious freedom. In the constitutional order of
priorities, the right to religious freedom is to be exercised in a manner consonant with the
vision underlying the provisions of Part III. The equal participation of women in worship
inheres in the constitutional vision of a just social order.
a) The said religious practice violates Right to Equality enshrined under Article
14 of the Constitution of Indiana.
It is humbly submitted before the Hon‟ble Court that the exclusionary practice of
preventing women between the age of 11 to 51 years based on physiological factors

4|Page
 exclusively to be found in female gender violates Article 14 of the Constitution of
India, for such a classification does not have a constitutional object.
In the case of Magan Chhaganlal Pvt Ltd v Municipal Corporation of Greater
Bombay,10 that Article 14 enunciates a vital principle which lies at the core of our
republican and shines like bacon light pointing towards the goal of classless,
egalitarian, socio-economic order, which we promise to build for ourselves, when
we made tryst with destiny on the fateful day we adopted our constitution. Hence, it
is pleaded that even if it is said that there is classification between men and women
as separate classes, there cannot be any further sub-classification among women on
the basis of physiological factors such as menstruation by which women below 11
years and above 51 years are allowed. In the case of Kesavananda Bharati v State of
Kerala11, the court pointed out that it must be taken as well settled at what Article 14
strikes at is arbitrariness because any action that is arbitrary must necessarily involve
negation of equality. The concept of reasonableness and non-arbitrariness pervades
the entire constitutional scheme and is a golden thread which runs through the whole
of the fabric of the constitution.
i. That there is no intelligible differentia behind the law.
It has been averred by the respondent that as per Article 14, any law being
discriminatory in nature has to have the existence of an intelligible differentia and
the same must bear a rational nexus with the object sought to be achieved. The
object as has been claimed is to prevent the deity from being polluted, which, in
the view of the respondent, runs counter to the constitutional object of justice,
liberty, equality and fraternity as enshrined in the Preamble to our Constitution.
That apart, the respondent has submitted that though the classification based on
menstruation may be intelligible, yet the object sought to be achieved being
constitutionally invalid, the question of nexus need not be delved into.
It has also been asseverated by the respondent that the exclusionary practice is
manifestly arbitrary in view of the judgment of this Court in Shayara Bano v
Union of India and Others12 as it is solely based on physiological factors and,

10
(1974) 2 SCC 402
11
(1973) 4 SCC 225; Ajay Hasia v Khalid Mujib Sherarvardi, (1981) 1 SCC 722; DS Nakara v Union of India,
(1983) 1 SCC 305; Maneka Gandhi v Union of India, (1978) 1 SCC 248; EP Royappa v State of Tamil Nadu,
1974 SCC (L&S) 165
12
(2017) 9 SCC 1

5|Page
 therefore, neither serves any valid object nor satisfies the test of reasonable
classification under Article 14 of the Constitution.
In the case of State of Bengal v Anwar Ali Sarkar13, the Supreme Court evolved
certain tests to decide the permissibility of a classification:
(i) The classification must be founded intelligible differentia which distinguishes
persons or things that are grouped together from others left out from the group.
(ii) The differentia must have a rational relation to the objects sought to be achieved
by the statue.
The present case not only differentiates between men and women but also creates
a further classification in women just based on physiological factors by
prohibiting entry of women between the ages of 11-51.14 Again in the case of Dr.
Subramanyam Swami v Central Bureau of Investigation15, the Supreme Court
pointed out that if the object itself is discriminatory then the explanation that the
classification is reasonable having rational relation to object sought to be achieved
is immaterial.
It is contended that discrimination in matters of entry to temples is neither a ritual
nor a ceremony associated with Hindu religion as this religion does not
discriminate against women but, on the contrary, Hindu religion accords to
women a higher pedestal in comparison to men and such a discrimination is
totally anti-Hindu, for restriction on the entry of women is not the essence of
Hindu religion. It has also been submitted the basic tenets of the followers of Lord
Jogeshwara are not confined to taking of oath of celibacy as there is no such
practice of not seeing the sight of women.
The doctrine of classification is only a subsidiary rule evolved by courts to give a
practical content to the said doctrine. Overemphasis on the doctrine of
classification or an anxious and sustained attempt to discover some basic for
classification may gradually and imperceptibly deprive the article of its glorious
content. That process would inevitably end in substituting the doctrine of
classification for the doctrine of equality; the fundamental right to equality before
the law and the equal protection of the laws may be replaced by the doctrine of
classification.16

13
1952 AIR 75
14
¶3 of the Moot Proposition at Pg. 1
15
(2014) 8 SCC 682
16
Lachhman Das v State of Punjab, 1963 AIR 222

6|Page
 Hence the object sought by this the Lord Jogeshwara Temple (Prohibition on
Entry of Women) Act which is to protect the celibacy and austerity of Lord
Jogeshwara17 by not allowing women in the temple is discriminatory in nature and
hence on the basis of the above-mentioned case any explanation that the
restriction is reasonable is immaterial.
Further, mere sight of women cannot affect one‟s celibacy if one has taken oath of
it, otherwise such oath has no meaning and moreover, the devotees do not go to
the temple of Lord Jogeshwara for taking the oath of celibacy but for seeking the
blessings of Lord Jogeshwara.
b) That the said prohibition is in violation of Article 15 of the Constitution of
Indiana.
It has also been put forth by the respondent that the exclusionary practice per se
violates Article 15(1) of the Constitution which amounts to discrimination on the
basis of sex as the physiological feature of menstruation is exclusive to females
alone. In support of the said submission, the respondent has placed reliance upon the
judgments of this Court in Anuj Garg and others v Hotel Association of India and
others18 and Charu Khurana and others v Union of India and others19, to accentuate
that gender bias in any form is opposed to constitutional norms. It has been held by
the court in numerous cases that a discrimination against a man or a woman, only on
the ground of sex would be violative of Article 15(1).20
c) That the said prohibition is in violation of Article 17 of the Constitution of
Indiana.
It is also the case of the respondent that exclusionary practice has the impact of
casting a stigma on women of menstruating age for it considers them polluted and
thereby has a huge psychological impact on them which resultantly leads to violation
of Article 17 as the expression “in any form” in Article 17 includes untouchability
based on social factors and is wide enough to cover menstrual discrimination against
women. It has further been submitted by respondent that Article 17 applies to both
State and non-State actors and has been made operative through a Central legislation
in the form of Protection of Civil Rights Act, 1955. The judgment of the High Court
in S. Mahendran v The Secretary, Travancore Devaswom Board,

17
¶3&4 of the Moot Proposition at Pg. 1 & 2
18
(2008) 3 SCC 1
19
(2015) 1 SCC 192
20
Air India v Nargesh Meerza, AIR 1981 SC 1829; Muthamma C.B (Miss) v Union of India, AIR 1979 SC 1868

7|Page
 Thiruvananthapuram & Ors21, in the view of the respondent, is not in consonance
with the provisions of the 1955 Act.
In the case of Sardar Sydena Taher Saifuddin Saheb v State of Bombay22 where in
Justice Sinha applying Article 17 to the practice of religious excommunication
among Dawoodi Bohras, which again was not “untouchability” in historical sense:
“A broad reading of Article 17 means that not only the caste based practice of
untouchability falls within the ambit of the constitutional prohibition, but practices
that bear a family resemblance to “untouchability” are captured as well. This
requires a court to ask whether a particular practice, like untouchability, is a practice
of social subordination, exclusion and segregation, based upon an idea that certain
personal characteristics (whether caste, or gender, or menstruation) can justify
relegating individuals to an inferior position in society.”
Further, it has been put forth that the constitutional intent in keeping the
understanding of untouchability in Article 17 open-textured was to abolish all
practices based on the notion of purity and pollution.
This Article proscribes untouchability “in any form‟ as prohibited and the exclusion
of menstruating women from religious spaces and practices is no less a form of
discrimination than the exclusion of oppressed castes.
After referring to Section 7(c) of the Civil Rights Act, 1955, which criminalizes the
encouragement and incitement to practise untouchability in “any form whatsoever”
and the Explanation II appended to the said Section, the respondent has submitted23
that untouchability cannot be understood in a pedantic sense but must be understood
in the context of the Civil Rights Act to include any exclusion based on the notions
of purity and pollution.
It is also the view of the respondent that the phrase „equally entitled to‟ in Article
25(1) finds resonance in Section 3(a) of the Civil Rights Act, 1955 which
criminalizes exclusion of people to those places which are “open to other persons
professing the same religion or any section thereof, as such person” and prevention
of worship “in the same manner and to the same extent as is permissible to other
persons professing the same religion or any section thereof, as such persons”.

21
AIR 1993 Ker 42
22
1962 Supp. (2) SCR 496
23
Government of NCT of Delhi v Union of India, (2018) 8 SCALE 72

8|Page
 That apart, the learned Amicus has drawn our attention to Section 2(d) of the 1955
Act which defines “place of public worship” to mean, inter alia “by whatever name
belonging to any religious denomination or any section thereof, for the performance
of any religious service” and, therefore, the Amicus submits that a temple is a public
temple and irrespective of its denominational character, it cannot prevent the entry
of any devotee aspiring to enter and worship.
Article 17 occupies a unique position in our constitutional scheme. The Article,
which prohibits a social practice, is located in the chapter on fundamental rights. The
framers introduced Article 17, which prohibits a discriminatory and inhuman social
practice, in addition to Articles 14 and 15, which provide for equality and non-
discrimination. While there has been little discussion about Article 17 in textbooks
on constitutional law, it is a provision which has a paramount social significance
both in terms of acknowledging the past and in defining the vision of the
Constitution for the present and for the future.
Article 17 abolished the age old practice of “untouchability”, by forbidding its
practice “in any form”. By abolishing “untouchability”, the Constitution attempts to
transform and replace the traditional and hierarchical social order. Article 17, among
other provisions of the Constitution, envisaged bringing into “the mainstream of
society, individuals and groups that would otherwise have remained at society‟s
bottom or at its edges”24. Article 17 is the constitutional promise of equality and
justice to those who have remained at the lowest rung of a traditional belief system
founded in graded inequality. Article 17 is enforceable against everyone – the State,
groups, individuals, legal persons, entities and organised religion – and embodies an
enforceable constitutional mandate. It has been placed on a constitutional pedestal of
enforceable fundamental rights, beyond being only a directive principle, for two
reasons. First, “untouchability” is violative of the basic rights of socially backward
individuals and their dignity. Second, the framers believed that the abolition of
“untouchability” is a constitutional imperative to establish an equal social order. Its
presence together and on an equal footing with other fundamental rights, was
designed to “give vulnerable people the power to achieve collective good” 25. Article
17 is a reflection of the transformative ideal of the Constitution, which gives

24
Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999), at pages
1213
25
Politics and Ethics of the Indian Constitution Rajeev Bhagava (ed.), Oxford University Press (2008), at page
15

9|Page
 expression to the aspirations of socially disempowered individuals and communities,
and provides a moral framework for radical social transformation. Article 17, along
with other constitutional provisions26, must be seen as the recognition and
endorsement of a hope for a better future for marginalized communities and
individuals, who have had their destinies crushed by a feudal and caste-based social
order
The framers of the Constitution left the term “untouchability” undefined. The
proceedings of the Constituent Assembly suggest that this was deliberate. B Shiva
Rao has recounted27 the proceedings of the Sub-Committee on Fundamental Rights,
which was undertaking the task of preparing the draft provisions on fundamental
rights. A clause providing for the abolition of “untouchability” was contained in K
M Munshi‟s draft of Fundamental Rights. Clause 4(a) of Article III of his draft
provided:
“Untouchability is abolished and the practice thereof is punishable by the law of the
Union.”
Clause 1 of Article II of Dr Ambedkar‟s draft provided that:
“Any privilege or disability arising out of rank, birth, person, family, religion or
religious usage and custom is abolished.”
While discussing the clause on “untouchability” on 29 March 1947, the Sub
Committee on Fundamental Rights accepted Munshi‟s draft with a verbal
modification that the words “is punishable by the law of the Union” be substituted
by the expression “shall be an offence”.28 Reflecting on the draft, the constitutional
advisor, B N Rau, remarked that the meaning of “untouchability” would have to be
defined in the law which would be enacted in future to implement the provision.
Bearing in mind the comments received, the Sub Committee when it met on 14 April
1947 to consider its draft report, decided to add the words “in any form” after the
word “Untouchability”. This was done specifically in order “to make the prohibition
of practice of untouchability comprehensive”
Article 17 is a constitutional recognition of these resentments. The incorporation of
Article 17 into the Constitution is symbolic of valuing the centuries‟ old struggle of
social reformers and revolutionaries. It is a move by the Constitution makers to find

26
Articles 15(2) and 23, The Constitution of India
27
B Shiva Rao, The Framing of India‟s Constitution: A Study, Indian Institution of Public Administration
(1968), at page 202
28
ibid

10 | P a g e
 catharsis in the face of historic horrors. It is an attempt to make reparations to those,
whose identity was subjugated by society. Article 17 is a revolt against social norms,
which subjugated individuals into stigmatized hierarchies. By abolishing
“untouchability”, Article 17 protects them from a repetition of history in a free
nation. The background of Article 17 thus lies in protecting the dignity of those who
have been victims of discrimination, prejudice and social exclusion.
Any form of stigmatization which leads to social exclusion is violative of human
dignity and would constitute a form of “untouchability”. The Drafting Committee
did not restrict the scope of Article 17. The prohibition of “untouchability”, as part
of the process of protecting dignity and preventing stigmatization and exclusion, is
the broader notion, which this Court seeks to adopt, as underlying the framework of
these articles.
The Constitution embodies a vision of social transformation. It represents a break
from a history marked by the indignation and discrimination attached to certain
identities and serves as a bridge to a vision of a just and equal citizenship. In a
deeply divided society marked by intermixing identities such as religion, race, caste,
sex and personal characteristics as the sites of discrimination and oppression, the
Constitution marks a perception of a new social order. This social order places the
dignity of every individual at the heart of its endeavours. As the basic unit of the
Constitution, the individual is the focal point through which the ideals of the
Constitution are realized.
d) That the said prohibition is in violation of Article 21 of the Constitution of
Indiana.
Though Article 21 speaks only of the deprivation of life and personal liberty by a
procedure established by law, decisions from Maneka Gandhi v Union of India29
have expounded that law must be reasonable.
Drawing support from the decisions of this Court in National Legal Services
Authority v Union of India and others30 and Justice K.S. Puttaswamy and another v
Union of India and others31, the respondent has averred that the exclusionary
practice pertaining to women is violative of Article 21 of the Constitution as it
impacts the ovulating and menstruating women to have a normal social day to day

29
Supra Note 11
30
(2014) 5 SCC 438
31
(2017) 10 SCC 1

11 | P a g e
 rendezvous with the society including their family members and, thus, undermines
their dignity by violating Article 21 of the Constitution.
After placing reliance on the decision of this Court in K.S. Puttaswamy32, the
respondent has submitted that the exclusionary practice in its implementation results
in involuntary disclosure by women of both their menstrual status and age which
amounts to forced disclosure that consequently violates the right to dignity and
privacy embedded in Article 21 of the Constitution of India.
e) That the said prohibition is in violation of Articles 25 and 26 of the Constitution
of Indiana.
It has also been submitted that the exclusionary practice violates the rights of Hindu
women under Article 25 of the Constitution as they have the right to enter Hindu
temples dedicated to the public. As per the respondent, there is a catena of
judgments by this Court wherein the rights of entry into temples of all castes have
been upheld on the premise that they are Hindus and similarly, women who assert
the right to enter the Jogeshwara temple are also Hindus.
Referring to the judgment of this Court in Sri Venkatramana Devaru v State of
Mysore and Ors33, the respondent has submitted that the right to manage its own
affairs conferred upon a religious denomination under Article 26(b) is subject to be
rights guaranteed to Hindu women under Article 25(2)(b). As per the respondent, a
harmonious construction of Articles 25 and 26 of the Constitution reveals that
neither Article 26 enables the State to make a law excluding any women from the
right to worship in any public temple nor does it protect any custom that
discriminates against women and, thus, such exclusion amounts to destruction of the
rights of women to practise religion guaranteed under Article 25.
In Sardar Sydena Taher Saifuddin Saheb v State of Bombay34, it was held that every
member of the community has the right, so long as he does not interfere with the
corresponding rights of others, to profess, practice and propagate his religion.
it is the freedom of conscience and the right to practise and profess their religion
which is recognized under Article 25 of the Constitution of India. This right, as per
the learned Amicus, encompasses the liberty of belief, faith and worship, pithily
declared as a constitutional vision in the Preamble to the Constitution of India.

32
ibid
33
1958 AIR 55
34
Supra Note 22

12 | P a g e
 Article 25 pertinently declares that all persons are “equally” entitled to freely
practise religion. This, in view of the learned Amicus, implies not just inter-faith but
intra-faith parity. Therefore, the primary right under Article 25(1) is a non-
discriminatory right and is, thus, available to men and women professing the same
faith.
Although in the case of The Commissioner Hindu Religious Endowments, Madras v
Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt35, while giving freedom
under clauses (a) and (b) of Article 26, made it clear that what is protected is only
the “essential part‟ of religion or, in other words, the essence of “practice”,
practiced by a religious denomination and, therefore, the petitioners submit that
before any religious practice is examined on the touchstone of constitutional
principles, it has to be ascertained positively whether the said practice is, in pith and
substance, really the “essence” of the said religion.
Again in the judgment of Durgah Committee, Ajmer v Syed Hussain Ali36 wherein
Gajendragadkar, J. clarified that clauses (c) and (d) do not create any new right in
favour of religious denominations but only safeguard their rights. Similarly, in
matters of religious affairs, it is observed that the same is also not sacrosanct as there
may be many ill-practices like superstitions which may, in due course of time,
become mere accretions to the basic theme of that religious denomination. After so
citing, the petitioners have submitted that even if any accretion added for any
historical reason has become an essence of the said religious denomination, the same
shall not be protected under Article 26(b) if it so abhors and is against the basic
concept of our Constitution.
It has also been submitted by the respondents that Article 25(2)(b) is not a mere
enabling provision but is a substantive right as it creates an exception for laws
providing for social reform or throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus and thereby embodies the
constitutional intent of abhorring exclusionary practices. Further, referring to the
judgment of this Court in Devaru37, the learned Amicus has submitted that Article
25(2)(b) does not merely seek to prevent exclusionary practices on the basis of caste

35
[1954] SCR 1005
36
(1962) 1 SCR 383
37
Supra Note 33

13 | P a g e
 only, for the rights under Part III of the Constitution must be given a broad meaning
and any exception must be given a narrow construction.
The respondents have also cited the judgments of this Court in Commissioner of
Police and Ors v Acharya Jagadishwarananda Avadhuta and Ors38 to submit that in
order to claim protection of the doctrine of essential religious practices, the practice
to exclude women from entry to the Lord Jogeshwara temple must be shown by the
respondents to be so fundamental to the religious belief without which the religion
will not survive. On the contrary, no scriptural evidence has39 been led by the
respondents herein to demonstrate that the exclusion of women is an essential part of
their religion.
Exclusion of entry of women of the age group of 11 to 51 years is a clear violation
of the right of such women to practise their religious belief which, in consequence,
makes their fundamental right under Article 25(1) a dead letter. It is clear as crystal
that as long as the devotees, irrespective of their gender and/or age group, seeking
entry to a temple of any caste are Hindus, it is their legal right to enter into a temple
and offer prayers.
The said rule of exclusion cannot be justified on the ground that allowing entry to
women of the said age group would, in any way, be harmful or would play a
jeopardizing role to public order, morality, health or, for that matter, any other
provision/s of Part III of the Constitution, for it is to these precepts that the right
guaranteed under Article 25(1) has been made subject to.
We must remember that when there is a violation of the fundamental rights, the term
“morality” naturally implies constitutional morality and any view that is ultimately
taken by the Constitutional Courts must be in conformity with the principles and
basic tenets of the concept of this constitutional morality that gets support from the
Constitution.
In Manoj Narula v Union of India40, this Court has reflected upon the predominant
role that the concept of constitutional morality plays in a democratic set-up and
opined thus: “The principle of constitutional morality basically means to bow down
to the norms of the Constitution and not to act in a manner which would become
violative of the rule of law or effectible of action in an arbitrary manner. It actually

38
(2004) 12 SCC 770
39
Manoj Narula v Union of India, (2014) 9 SCC 1
40
ibid

14 | P a g e
 works at the fulcrum and guides as a laser beam in institution building. The
traditions and conventions have to grow to sustain the value of such a morality. The
democratic values survive and become successful where the people at large and the
persons-in-charge of the institution are strictly guided by the constitutional
parameters without paving the path of deviancy and reflecting in action the primary
concern to maintain institutional integrity and the requisite constitutional restraints.
Commitment to the Constitution is a facet of constitutional morality.”
That apart, this Court, in Government of NCT of Delhi v Union of India and others41,
observed thus: “Constitutional morality in its strictest sense of the term implies strict
and complete adherence to the constitutional principles as enshrined in various
segments of the document. When a country is endowed with a Constitution, there is
an accompanying promise which stipulates that every member of the country right
from its citizens to the high constitutional functionaries must idolize the
constitutional fundamentals. This duty imposed by the Constitution stems from the
fact that the Constitution is the indispensable foundational base that functions as the
guiding force to protect and ensure that the democratic setup promised to the
citizenry remains unperturbed.
Elaborating further, in Navtej Singh Johar and others v Union of India and others42,
this Court observed: “The concept of constitutional morality is not limited to the
mere observance of the core principles of constitutionalism as the magnitude and
sweep of constitutional morality is not confined to the provisions and literal text
which a Constitution contains, rather it embraces within itself virtues of a wide
magnitude such as that of ushering a pluralistic and inclusive society, while at the
same time adhering to the other principles of constitutionalism. It is further the result
of embodying constitutional morality that the values of constitutionalism trickle
down and percolate through the apparatus of the State for the betterment of each and
every individual citizen of the State.”
The term public morality has to be appositely understood as being synonymous with
constitutional morality.
In Durgah Committee, Ajmer and others v Syed Hussain Ali and others43, the Court,
although speaking in the context of Article 26, warned that some practices, though

41
Supra Note 23
42
(2018) 10 SCALE 386
43
Supra Note 36

15 | P a g e
 religious, may have sprung from merely superstitious beliefs and may, in that sense,
be extraneous and unessential accretions to religion itself and unless such practices
are found to constitute an essential and integral part of a religion, their claim for
protection as essential practices may have to be carefully scrutinised; in other words,
the protection must be confined to such religious practices as are an essential and an
integral part of the religion and no other
Seshammal v State of Tamilnadu44 regarding those aspects those are to be looked
into so as to determine whether a part or practice is essential or not. What is meant
by 'an essential part or practices of a religion' is now the matter for elucidation.
Essential part of a religion means the core beliefs upon which a religion is founded.
Essential practice means those practices that are fundamental to follow a religious
belief. It is upon the cornerstone of essential parts or practices the superstructure of
religion is built. Without which, a religion will be no religion. Test to determine
whether a part or practice is essential to the religion is - to find out whether the
nature of religion will be changed without that part or practice. If the taking away of
that part or practice could result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an essential or integral
part. There cannot be additions or subtractions to such part because it is the very
essence of that religion and alterations will change its fundamental character. It is
such permanent essential parts are what are protected by the Constitution. Nobody
can say that essential part or practice of one's religion has changed from a particular
date or by an event. Such alterable parts or practices are definitely not the 'core' of
religion where the belief is based and religion is founded upon. It could only be
treated as mere embellishments to the nonessential part or practices.”45
It is humbly submitted before the Hon‟ble court that we cannot say that prohibiting
women only of a certain age group is an essential part or “essence” of any religion.
In the light of the above authorities, it has to be determined whether the practice of
exclusion of women of the age group of 11 to 51 years is equivalent to a doctrine of
Hindu religion or a practice that could be regarded as an essential part of the Hindu46
religion and whether the nature of Hindu religion would be altered without the said
44
[1972]3SCR815
45
Javed v State of Haryana, (2003) 8 SCC 369; Commissioner of Police v Acharya Jagdishwarananda
Avadhuta, Supra Note 38
46
B Shiva Rao has remarked that Panikkar‟s reference was to the depressed classes who had been converted to
Christianity in Travancore-Cochin and Malabar. See B Shiva Rao, The Framing of India‟s Constitution: A
Study, Indian Institution of Public Administration (1968), at page 202

16 | P a g e
 exclusionary practice. The answer to these questions, in our considered opinion, is in
the firm negative. In no scenario, it can be said that exclusion of women of any age
group could be regarded as an essential practice of Hindu religion and on the
contrary, it is an essential part of the Hindu religion to allow Hindu women to enter
into a temple as devotees and followers of Hindu religion and offer their prayers to
the deity. In the absence of any scriptural or textual evidence, we cannot accord to
the exclusionary practice followed at the Lord Jogeshwara temple the status of an
essential practice of Hindu religion.
It is instructive to remember that Shirur Math Case47 specifically contained a
sentence which stated that there is a further right given to the State by Article
25(2)(b) under which, the State can legislate for social welfare and reform ―even
though by so doing it might interfere with religious practices. We, therefore, leave
this part of Article 25(2)(b) to be focused and deliberated upon.
Matters that are essential to religious faith and/or belief are to be judged on evidence
before a court of law by what the community professing the religion itself has to say
as to the essentiality of such belief. One test that has been evolved would be to
remove the particular belief stated to be an essential belief from the religion – would
the religion remain the same or would it be altered? Equally, if different groups of a
religious community speak with different voices on the essentiality aspect presented
before the Court, the Court is then to decide as to whether such matter is or is not
essential.
The founding faith upon which the Constitution is based is the belief that it is in the
dignity of each individual that the pursuit of happiness is founded. Individual dignity
can be achieved only in a regime which recognizes liberty as inhering in each
individual as a natural right. Human dignity postulates equality between persons.
Equality necessarily is equality between sexes and genders. Equality postulates a
right to be free from discrimination and to have the protection of the law in the same
manner as is available to every citizen. Equality above all is a protective shield
against the arbitrariness of any form of authority. These founding principles must
govern our constitutional notions of morality. Constitutional morality must have a
value of permanence which is not subject to the fleeting fancies of every time and
age. If the vision which the founders of the Constitution adopted has to survive,

47
Supra Note 35

17 | P a g e
 constitutional morality must have a content which is firmly rooted in the
fundamental postulates of human liberty, equality, fraternity and dignity. These are
the means to secure justice in all its dimensions to the individual citizen. Once these
postulates are accepted, the necessary consequence is that the freedom of religion
and, likewise, the freedom to manage the affairs of a religious denomination is
subject to and must yield to these fundamental notions of constitutional morality. 48
Facets of that liberty find protection in Article 25. Religion then cannot become a
cover to exclude and to deny the basic right to find fulfillment in worship to women.
Nor can a physiological feature associated with a woman provide a constitutional
rationale to deny to her the right to worship which is available to others. Birth marks
and physiology are irrelevant to constitutional entitlements which are provided to
every individual. To exclude from worship, is to deny one of the most basic
postulates of human dignity to women. Neither can the Constitution countenance
such exclusion nor can a free society accept it under the veneer of religious beliefs.
In Durgah Committee, Ajmer v Syed Hussain Al49
Before parting with the judgment, Justice Gajendragadkar issued an important “note
of caution”:
“In order that the practices in question should be treated as a part of religion they
must be regarded by the said religion as its essential and integral part; otherwise
even purely secular practices which are not an essential or an integral part of religion
are apt to be clothed with a religious form and may make a claim for being treated as
religious practices within the meaning of Article 26. Similarly, even practices
though religious may have sprung from merely superstitious beliefs and may in that
sense is extraneous and unessential accretions to religion itself. Unless such
practices are found to constitute an essential and integral part of a religion their
claim for the protection under Article 26 may have to be carefully scrutinized; in
other words, the protection must be confined to such religious practices as are an
essential and an integral part of it and no other.”
For decades, this Court has witnessed claims resting on the essentiality of a practice
that militate against the constitutional protection of dignity and individual freedom
under the Constitution. It is the duty of the courts to ensure that what is protected is
in conformity with fundamental constitutional values and guarantees and accords

48
Supra Note 9
49
Supra Note 36

18 | P a g e
 with constitutional morality. While the Constitution is solicitous in its protection of
religious freedom as well as denominational rights, it must be understood that
dignity, liberty and equality constitute the trinity which defines the faith of the
Constitution. Together, these three values combine to define a constitutional order of
priorities. Practices or beliefs which detract from these foundational values cannot
claim legitimacy. In Government of NCT of Delhi v Union of India50, J.
Chandrachud said
“Constitutional morality highlights the need to preserve the trust of the people in
institutions of democracy. It encompasses not just the forms and procedures of the
Constitution, but provides an “enabling framework that allows a society the
possibilities of self-renewal”. It is the governing ideal of institutions of democracy
which allows people to cooperate and coordinate to pursue constitutional aspirations
that cannot be achieved single-handedly.”
Our Constitution places the individual at the heart of the discourse on rights. In a
constitutional order characterized by the Rule of Law, the constitutional
commitment to egalitarianism and the dignity of every individual enjoins upon the
Court a duty to resolve the inherent tensions between the constitutional guarantee of
religious freedom afforded to religious denominations and constitutional guarantees
of dignity and equality afforded to individuals. There are a multiplicity of
intersecting constitutional values and interests involved in determining the
essentiality of religious practices. In order to achieve a balance between competing
rights and interests, the test of essentiality is infused with these necessary
limitations.
The Court must lean against granting constitutional protection to a claim which
derogates from the dignity of women as equal holders of rights and protections. In
the ethos of the Constitution, it is inconceivable that age could found a rational basis
to condition the right to worship. The ages of ten to fifty have been marked out for
exclusion on the ground that women in that age group are likely to be in the
procreative age. Does the Constitution permit this as basis to exclude women from
worship? Does the fact that a woman has a physiological feature – of being in a
menstruating age – entitle anybody or a group to subject her to exclusion from
religious worship? The physiological features of a woman have no significance to

50
Supra Note 23

19 | P a g e
 her equal entitlements under the Constitution. All women in the age group of ten and
fifty may not in any case fall in the „procreative age group‟. But that to my mind is
again not a matter of substance. The heart of the matter lies in the ability of the
Constitution to assert that the exclusion of women from worship is incompatible
with dignity, destructive of liberty and a denial of the equality of all human beings.
These constitutional values stand above everything else as a principle which brooks
no exceptions, even when confronted with a claim of religious belief. To exclude
women is derogatory to an equal citizenship.
Each person, whatever be his religion, must get an assurance from the state that he
has the protection of law to freely profess, practice and propagate his religion and
freedom of conscience. Otherwise, the rule of law will become replaced by
individual perception of one‟s own presumption of good social order.51 In the
present case by prohibiting women from worshipping and entering the temple, their
rights under Article 25 are violated.
There is an assumption here, which cannot stand constitutional scrutiny. The
assumption in such a claim is that a deviation from the celibacy and austerity
observed by the followers would be caused by the presence of women. Such a claim
cannot be sustained as a constitutionally sustainable argument. Its effect is to impose
the burden of a man‟s celibacy on a woman and construct her as a cause for
deviation from celibacy. This is then employed to deny access to spaces to which
women are equally entitled.
f) That the said prohibition is also in infirmity with the International Conventions
Indiana has ratified.
The respondent has also drawn the attention of this Court to the Convention on
Elimination of all forms of Discrimination Against Women (CEDAW) and the fact
that Indiana is a party to this Convention for emphasizing that it is the obligation of
the State to eradicate taboos relating to menstruation based on customs or traditions
and further the State should refrain from invoking the plea of custom or tradition to
avoid their obligation. The judgment of this Court in Vishaka and others v State of
Rajasthan and others52 has been cited to submit that international conventions must
be followed when there is a void in the domestic law or when there is any
inconsistency in the norms for construing the domestic law.

51
State of Karnataka v Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081
52
(1997) 6 SCC 241

20 | P a g e
 Article 1 of the Convention defines discrimination against women as "...any
distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field."
Article 2 of the Convention states that
State Parties condemn discrimination against women in all its forms, agree to
pursue by all appropriate means and without delay a policy of eliminating
discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation if not yet incorporated therein and to
ensure, through law and other appropriate means, the practical realization of this
principle;
(b) To adopt appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and
to ensure through competent national tribunals and other public institutions the
effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and
to ensure that public authorities and institutions shall act in conformity with this
obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any
person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination against
women;
(g) To repeal all national penal provisions which constitute discrimination against
women.

21 | P a g e
 3. WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER
OF REEMA AND RIYA, AND THE HIGH COURT OF ARYA PRADESH
ERRED IN ACQUITTING THEM?
It is humbly submitted before the Hon‟ble Court that all the five accused are guilty of
committing abduction and murder of Reema and Riya under sections 364 and 300 of the
Indian Penal Code, 1860, rape of Riya under sections 375 and 376 of the IPC and also
under Sections 34, 120A and 120B of IPC for having common intention and conspiring to
commit the abovementioned offences.
a) That all the five accused are guilty of the following offences beyond
reasonable doubt:
A judge does not preside over a criminal trial, merely to see that no innocent man is
punished. A judge also presides to see that a guilty man does not escape. Both are public
duties. Doubts would be called reasonable if they are free, from a zest of abstract
speculation. Law cannot afford any favourite other than truth.53
The prosecution evidence no doubt suffers from inconsistencies here and discrepancies
there but that is a shortcoming from which no criminal case is free. The main thing to be
seen is whether those inconsistencies go to the root of the matter or pertain to
insignificant aspects thereof. In the former case, the defence may be justified in seeking
advantages of the incongruities obtaining in the evidence. In the latter, however, no such
benefit may be available to it. That is a salutary method of appreciation of evidence in
criminal cases.54
i. Abducting to murder (Section 364 IPC), Murder (Section 300 IPC)
The accused are guilty under section 364 of IPC for Abducting to murder the girls
and under section 300 for committing the murder of the girls.
The offence of abduction is committed by two means a) by forceful means; or b) by
deceitful means. The object of such compulsion or inducement must be going of the
victim from any place.55 The word “force” means the actual use of force.56
Where more persons than one have abducted the victim who was later murdered it is
within the legal province of the court to justifiably draw a presumption depending on
the factual situation that all the abductors are responsible for the murder. S34 of the

53
Sucha Singh & Anr v State of Punjab, AIR 2003 SC 3617
54
Krishna Pillai Sree Kumar v State of Kerala, AIR 1981 SC 1237
55
Malleshi v State of Karnataka AIR 2004 SC 4865
56
Nura v Rex, AIR 1949 All 710(713)

22 | P a g e
 IPC could be invoked for the aid to the end.57 The intention of the accused at the
time of kidnapping or abduction is a matter of inference from the acts done at the
time of kidnapping or abduction thereafter.58 Where there is forcible abduction of
the person and subsequently assaulted thereby causing death the accused will be
convicted under section 364.59
For the offence under Section 300 of IPC, the expression causing death means
putting an end to human life.60 Before an act of the accused can be said to have
caused death it is necessary to show:
a) That there is a direct and distinct connection between the act and the death
b) That the connection is not too remote.
“Death”- means death of human being.61
It is necessary that the act should be connected with the death not merely by a chain
of causes and effects but by such direct influence as is calculated to produce the
effect without the intervention of any considerable chain of circumstances.62 Where
it is proved that each of the several persons caused an injury, which was sufficient in
the ordinary course of nature to cause death, each would be liable for murder.63
In the case at hand we can deduce the guilt of the accused from the following
evidences:
a) Chain of events conclusively probates the guilt of accused and this chain
of events is corroborated by material evidences.
In a case of abduction and murder, the dead body of the child was recovered from
the Nala on pointing of the accused. The deceased had injuries on his person
which showed that he was strangulated before death. The accused was earlier
involved in theft of informants' brass bar and when he was apprehended
and beaten, he had threatened to take revenge. Thus accused had motive to
commit crime. Chain of circumstantial evidence was found to be complete and the
accused was convicted.64
It has been held that a conviction can be based on circumstantial evidence and it is
required that there must be a chain of evidence so complete as not to leave ant
57
Supra Note 53
58
AIR 1979 SC 1410(1411)
59
(1996) 3 crimes 328
60
Re: Palani Goundan v Unknown, AIR 1920 Mad 862 (867)
61
Indu Jain v State of MP, (2005) 3 MPLJ 168 (MP)
62
37 Cri LJ 205
63
State Of Bihar v Pashupati Singh & Anr & Vice Versa, AIR 1973 SC 2699(2701)
64
All LJ (NOC) 35 (DB) (All)

23 | P a g e
 reasonable ground for conclusion consistent with innocence of the accused and it
must in all human probability the act must have been done by the accused. While
evaluating the circumstantial evidence, the fact that the chain of event is complete
or not would depend on the facts of each case emanating from the evidence and no
universal yardstick should ever be attempted.65
In this context the Supreme Court in the case of Gambhir v State of
Maharashtra66, laid down that circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established. Referring to the
above judgment of Gambhir v State of Maharashtra67, principles were again
reiterated by the Supreme Court in K.V. Chacko v State of Kerala68, and the apex
court laid down that,
“The law regarding basing a conviction by the courts on circumstantial evidence
is well settled. When a case rests upon the circumstantial evidence, such evidence
must satisfy three tests: (1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established (2) those
circumstances should be of a definite tendency unerringly pointing towards guilt
of the accused; (3) the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else. The
circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the
accused. The circumstantial evidence should not only be consistent with the guilt
of the accused but should be inconsistent with his innocence.”
It is humbly submitted before this Honourable Court that present case is proved
beyond reasonable doubt. The general rule is that a party who desires to move the
court must prove all facts necessary for that purpose69 but it is subject to exception
that he will not be required to prove such facts as are necessarily within the
knowledge of other party.70
In the case at hand following is the chain of events:

65
Ujjagar Singh v State of Punjab, (2007) 13 SCC 90
66
Gambhir v State of Maharashtra, 1982 (2) SCC 351
67
ibid
68
K.V. Chacki v State of Kerala, 2001 (9) SCC 277
69
Section 101 of IEA,1872
70
Section 106 IEA, 1872 See Also Raja Ram v State Cri. Appeal No. 211 of 2013

24 | P a g e
 (i) On the 23rd of December, 2016 the Hon‟ble Supreme Court of Indiana
pronounced its judgement wherein it allowed the entry of women in the
temple of Lord Jogeshwara.71
(ii) On the 24th of December, 2016 the girls (Reema and Riya) after receiving
copy of the judgment, along with some other women tried to enter the
temple and on their way many people (including men and women) tried to
stop them. When they reached the gate of the temple, Pt. Kali Charan
blocked the gate along with his sons Bhanu and Kalu and also directed the
other two priests Bhawani and Jagga to bring lathis for teaching life lesson
to the sisters.72
(iii) On the 27th of December, 2016 Jagga filed an FIR for the theft of his SUV,
the duplicate keys of which was possessed by Bhanu and Kalu as well.73
(iv) On 29th of December at around 11:30 PM the Prosecution Witness III, Mr.
Krishna Das heard the screams of two girls and when he followed the
noises he saw four men clad in saffron dhotis dragging two girls into an
SUV.74
(v) Later the same night when the girls did not return home till 01:00 AM
their mother went to file a complaint at the police station, the police
however, refused to lodge an FIR but started searching for girls.75
(vi) Later that night the police while patrolling discovered a suspicious SUV
which belonged to Jagga76 in an abandoned jungle near Mohini Bazar77
from which two lathis78 with the blood stain of the deceased were found.79
(vii) Then at around 3:00 AM that night Bhawani returned home and told his
wife that a sinful act had been committed by him and God will never
forgive him for that act, which he had committed because Pt. Kali Charan
had brain-washed him and instigated him by saying wrong things about the
sisters and then the next morning he along with his wife went to his

71
¶9 of the Moot Proposition at Pg. 2
72
¶10 & ¶11 of the Moot Proposition at Pg. 3
73
Annexure 1-A of the Moot Proposition at Pg. 6
74
Annexure 4, ¶3 of the Moot Proposition at Pg. 14
75
¶12 of the Moot Proposition at Pg. 3
76
Annexure 3 of the Moot Proposition at Pg. 12
77
¶ 12 of the Moot Proposition at Pg. 3
78
Supra Note 76
79
Annexure 6 of the Moot Proposition at Pg.16

25 | P a g e
 relatives house outside Katra80, from where he was arrested on 11th
January, 2017.81
(viii) The watchman who was on duty that night, who is also Prosecution
Witness V, said in his statement that Pt. Bhawani did not return home that
night, however he was not there for half an hour as he went to the have tea
at 3:00 am.82
(ix) Next day at 5:30 in the morning, Pt. Kali Charan called an informed the
police that a dead body was lying in the sanctum sanctorum of the temple,
the body was later recognised to be that of Reema‟s.83
(x) Then during preliminary investigation a dead body was discovered near a
jungle near Mohini Bazar on 31st December which was recognised to be of
Riya‟s.84
(xi) The post mortem report of Reema85 stated that her cause of death was Slit
throat, Multifarious Stabbing wounds, battering of face and Intracranial
Hematoma. According to the report the expected time of death was from
3:00 AM to 4:00 AM.86
(xii) As per the report the deceased was wearing a white coloured kurta which
was torn and a multi-coloured dupatta with mud stains and sand particles,
the reason for which could be dragging.87
(xiii) The post-mortem report of Riya88 suggested that there were vaginal
injuries caused because of forceful penetration by more than two
persons.89 The report further suggested the presence of Nail marks on the
left side of the neck90, bruised on the right side of the neck91, strangulation

80
¶ 3 of Supra Note 87
81
Supra Note 76
82
¶ 5 of Annexure 4 of the Moot Proposition at Pg. 14
83
¶13 of the Moot Proposition at Pg. 3
84
¶14 of the Moot Proposition at Pg. 3
85
Annexure 2-A of the Moot Proposition at Pg. 8
86
ibid
87
Annexure 4 of the Moot Proposition at Pg. 13
88
Annexure 2-B, of the Moot Proposition at Pg. 10
89
Supra Note 88
90
Supra Note 88
91
Supra Note 88

26 | P a g e
 marks92 and ligature marks on the body of Riya.93 According to the report
the cause of death of Riya was Asphyxia.94
(xiv) The forensic report clearly stated that three daraatis were discovered, two
from the temple premises which were sharp enough to cut a soft object like
skin and it was possible that the cut on the victim‟s neck measuring 1.5 cm
was caused by the weapons recovered. Third daraati was recovered from
the house of Pt. Kali Charan which was very blunt in nature.95
(xv) Further two laathis were recovered from the car having blood stains were
examined and the examination revealed that the blood stains found on the
lathis matched with those of the deceased.96
Perusal of the above chain of events makes it clear that no one other than the
accused could be held liable for the abduction and murder of Reema and Riya.
The above chain of events leaves no scope for any reasonable doubts for the
benefit of the accused and as it has been laid down in various cases a reasonable
doubt should not be imaginary, trivial or merely a possible doubt; the doubt must
be a fair doubt based upon reason and common sense arising out of the evidence
of the case.97From the above mentioned facts it can very well be deduced that the
crime was committed by the accused and no one else. The chain of events clearly
establishes circumstantial evidence and is also corroborated by the statement of
eye witness98, post-mortem reports99 and also the forensic report.100
Therefore it is humbly submitted before the Hon‟ble Court that the High Court has
erred in its judgement by acquitting the accused and the same should be corrected
by the Hon‟ble Court by awarding the accused with appropriate punishment.
Following material evidences corroborate the circumstantial evidence and prove
the guilt of the accused beyond any reasonable doubt:
The forensic report states that three daraatis were recovered, two of which were
found in the temple premises and were sharp in nature sufficient enough to cut
something like skin and the nature of the cut on the throat of the deceased might

92
Supra Note 88
93
Annexure 2-B, of the Moot Proposition at Pg. 11
94
Annexure 2-B of the Moot Proposition at Pg. 10
95
¶ 9(a) of Infra Note 100
96
¶ 9(b) of Infra Note 100
97
Chhotanney & Ors v State of Uttar Pradesh & Ors
98
¶3 of Supra Note 87
99
Annexure 2-A & 2-B of the Moot Proposition at Pg. 8-11
100
Annexure 6 of the Moot Proposition at Pg. 16

27 | P a g e
 have been caused by the daraatis, another daraati was recovered from the house of
Pt. Kali Charan however, that was blunt in nature. One of the daraatis recovered
from the temple premises was found under a neem tree, having some blood stains
on it and the other was recovered from the gutter tank of the temple. 101 Also two
laathis were found from the car which was ceased by the police, 102 the laathis had
blood stains which matched with that of the deceased.103
It has been held by the Supreme Court that it is important to connect the injuries
with the weapon and hence the importance of eliciting the opinion of the medical
witness, who had examined the injuries of the victim, more specifically on this
point, for the proper administration of justice particularly in a case where injuries
are forensically of the same species. It is the duty of the prosecution to show that
the alleged weapon is shown to the medical witness and his opinion invited as to
whether the injuries on the victim could be caused with the weapon.104 The
expression „FIR‟ is the abbreviated form of First Information Report. “First
Information” or “First Information Report” is not defined in Criminal Procedure
Code, 1973, but these words are always understood to mean an information
recorded U/s-154 (1) of Cr.P.C.
It is the information given to a police officer in the form of a complaint or
accusation regarding the commission of or suspected commission of a cognizable
offence. FIR is the information which is given to the police first in point of time
on the basis of which the police may select ad record as First Information.105
FIR is not substantive evidence. It can be used to corroborate the informant U/s-
157 of Indian Evidence Act or to contradict him U/s- 145 of Indian Evidence Act,
if the informant is called as a witness at the time of trial.106 The object of s157 is
to admit statements made at the time when the mind of the witness was so
connected with the events as to make it probable that his description of them
would be accurate.107 It is however required that the former statement must relate
to the same fact, i.e. the fact under inquiry and it must have been made a) at or
about the time when the fact took place; or (b) before any authority legally

101
Supra Note 76
102
Supra Note 76
103
¶9(b) of Supra Note 100
104
Kartarey & Ors v The State of UP, (1976) 1 SCC 172
105
Soma Bhai v State of Gujarat, AIR 1975 SC 1453
106
Aghnoo Nagesia v State of Bihar, (1966) 1 SCR 134
107
Public Prosecutor v Paneerselvan(1991) 1 Malayan LJ 106(Penang HC)

28 | P a g e
 competent to investigate the fact. This section is based on the principle that if
there is consistency between the previous statement and the present statement of a
witness, it may be considered a ground for believing him.108 In order to
corroborate the testimony of a witness, any former statement made by such
witness relating to the same fact at or about the time when the fact took place, or
before any authority legally competent to investigate the fact, may be proved.
Although, FIR is not substantial evidence on its own, it can be used to corroborate
with other evidences. In this case also, FIR can be used to corroborate the
statement of the eye-witness as well as the statement given by Bhawani‟s wife
about his extra-judicial confession.
b) That the accused had motive as well as state of mind to commit the
offences.
In criminal proceedings a man‟s character is often a matter of importance in
explaining his conduct and in judging his innocence or criminality. Many acts of
an accused person would be suspicious or free from all suspicion when the
character of the person by whom they are done is known. Even on the question of
punishment an accused is allowed to prove general good character.
Thus, where the allegation against the accused was that he was acting in
pursuance of the policy of the Ittehad-ul-Muslimeen, that this state of mind was to
exterminate the Hindus, it was held that the accused was entitled to lead evidence
to show that he did not possess the state of mind.109 In the instant case, the state of
mind of the accused to take revenge on the girls can be deduced from the
following facts:
a. Pt. Kali Charan and his sons Bhanu and Kalu had blocked the gate of the
temple the day the sisters tried entering the temple and they had also threated
the sisters that if they tried breaking the custom and enter the temple of Lord
Jogeshwara they would face dire consequences and then they asked Bhawani
and Jagga to bring laathis to teach life lessons to the protestors specially the
sisters.
The conduct of any party, or of any agent to any party, to any suit or proceeding,
in reference to such suit or proceeding, in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against whom is the

108
R v Malapa Bin, 11 BHCR 196,198
109
Habeeb Mohammad v State of Hyderabad, AIR 1954 SC 51

29 | P a g e
 subject of any proceeding, is relevant, if such conduct influences or is influenced
by any fact in issue or relevant fact, and whether it was previous or subsequent
thereto.
Subsequent conduct of the parties also proves their motive as Bhawani was
arrested in absconding state and Jagga was missing. The motive of these two can
be deduced from this because no one generally is in absconding state. Further
from the statement made by Kali Charan that, “They both have been punished by
Lord Jogeshwara for their sinful acts and the same will be done against any other
person who will raise voice against any other person who will raise voice against
the Lord.” This statement proves that they had the motive to take revenge from the
sisters and with this they also wanted to convey a message to the society that if
anyone else tried to break the custom and enter the temple, they would also face
similar consequences. This should also be taken into consideration that if the
women entered the temple the people who would be most affected were Pt. Kali
Charan and his sons, hence this increases their probability of committing the
crime against the sisters as the prime suspects are the ones who are most affected
people.
Motive, generally means that which moves or induces a person to act in a certain
way; a desire, fear, reason etc. which influences a person‟s volition; motive is
productive of physical or mechanical motion.110 The words like motive, Object,
purpose are in application to practical matters difficult strictly to define or
distinguish. Sometimes mere animus such as spite or ill-will, malevolence or a
wanton desire to harm without any view to personal benefit is meant. But motive
is often used as meaning, purpose, something objective and external as contrasted
with a mere mental state.111 The Supreme Court of India has said motive is
something which prompts a man to form an intention and knowledge, is an
awareness of consequences of the act.112 Motive is a moving power which impels
action for a definite result or to put in differently, motive is that which incites or
stimulates a person to do an act.113 In law, especially criminal law, a motive is the

110
The Shorter Oxford English Dictionary;, Vol. II, Third Edition, Clarendon Press, Oxford.
111
Crofter Hand Jweed Co. Ltd. v Veith, 1942 AC 435 (469) as cited in; Mitra;s Legal & Commercial
Dictionary, Fifth Edition, Eastern Law House.
112
Basudev v State of Pepsu, AIR 1956 SC 488 as cited in ; Supreme Court on Wards and Phrases 1950-2004;,
Ashoka Law House, Edition 2004, New Delhi.
113
Chandra Prakash Shahi v State of UP & others, (2000) 5 SCC 152 as cited in ;Supreme Court on Wards and
Phrases 1950-2004; Ashoka Law House, Edition 2004, New Delhi.

30 | P a g e
 cause that moves people and induce a certain action. Motive in itself is seldom an
element of any given crime; however, the legal system typically allows motive to
be proven in order to make plausible the accused's reasons for committing a
crime, at least when those motives may be obscure or hard to identify with.
In the version of Supreme Court if the eye witnesses are trustworthy, the motive
attributed for the commission of crime may not be of much relevance. 114 The
same was the position in the another case where it was found that if the
participation of the accused in the crime has been well proved by the eye witness
then value of motive tarnishes and cannot justify the accused to have acquittal.115
The prosecution is not bound to prove that motive was there when cogent
evidence has been supplied. In such cases absence of inadequacy of motive
becomes of very small importance.116
Hence in the present case it is upon the accused to prove that they did not have
state of mind to commit the said offences against the deceased as from their
conduct and statements it is quite evident that the accused had both motive and
intention to take revenge from the deceased and also to take their lives.
ii. Common Intention (Section 34 IPC) and Criminal Conspiracy (Section
120A and 120B IPC)
It is submitted before the Hon‟ble Court that the accused are guilty under sections
34, 120A and 120B of IPC for having common intention and also for conspiring to
abduct and kill the sisters and also to commit rape of Riya. Further the extra judicial
confession made by Bhawani to his wife also corroborates with the circumstantial
evidence and hence all the accused are guilty of the crimes and should be awarded
appropriate and equal punishment.
The burden lies on prosecution to prove that actual participation of more than one
person for commission of criminal act was done in furtherance of common intention
at a prior concert.117 To apply section 34, apart from the fact that there should be two
or more accused, two factors must be established: (i) common intention, and (ii)
participation of accused in the commission of an offence. If common intention is

114
State of UP v Nawab Singh (dead) and others, JT (2004) 2 SC 79, as cited in; Supreme Court on Wards and
Phrases 1950-2004;, Ashoka Law House, Edition 2004, New Delhi.
115
State of UP v Nahar Singh, AIR 1998 SC 1328
116
Batuklal, The Law of Evidence;, Sixteenth Edition, Reprinted 2007, Central Law Agency, Allahabad.
117
State of Orissa v Arjun Das, AIR 1999 SC 3229

31 | P a g e
 proved but no overt act is attributed to the individual accused, section 34 will be
attracted as essentially it involves vicarious liability. 118
It requires a pre-arranged plan and pre-supposes prior concert therefore there must
be prior meeting of mind. It can also be developed at the spur of moment but there
must be pre-arrangement or premeditated concert.119
Section 34 has been enacted on principle of joint liability in the doing of a criminal
act; the section is only a rule of evidence and does not create a substantive offence.
The distinctive feature of the section is the element of participation in action. The
liability of one person for an offence committed by another in the course of criminal
act perpetrated by several people arises under Section 34 if such criminal act is done
in furtherance of a common intention of the person who joins in committing the
crime. Direct proof of common intension 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.120
As observed in Ch Pulla Reddy and ors v state of Andhra Pradesh121, section 34 is
applicable even if no injury has been caused by the particular accused himself and
again iterated in Anil Sharma and ors v State of Jharkhand.122
Section 34 also deals with constructive criminal liability. It provides that where 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 was done by
him alone. If the common intention leads to the commission of the criminal offence
charged, each one of the persons sharing the common intention is constructively
liable for the criminal act done by one of them.123 Common intention can be
gathered from circumstances as they arise even during an incident.124
Under S 34, every individual offender is associated with the criminal act which
constituted the offence both physically as well as mentally i.e. he is a participant not
only what has be described as a common act but also what is termed as common
intention and therefore in both these respects his individual role into serious

118
Bhagwan v State of Haryana, AIR 1999 SC 1083
119
Ramashish Yadav v State of Bihar, 1999 (8) SCC 555
120
Sachin Jana & Another v State of West Bengal, 2008 (2) Scale 2 SC
121
AIR 1993 SC 1899
122
Appeal (crl.) 622-624 of 2003
123
Brathi alias Sukhdev Singh v State of Punjab (1991) 1 SCC 519
124
State of AP v M Sobhan Babu, 2011 CrLJ 2175 SC

32 | P a g e
 jeopardy although his individual role might be a part of a common scheme in which
others have also joined him and played a role that is similar or different.125
If the common intention leads to the commission of a crime each one of the persons
sharing the common intention is constructively liable for the criminal act done by
one of them.126
An inference as to the common intention shall not be readily drawn; the criminal
liability can arise only when such inference can be drawn with a certain degree of
assurance.127
The earlier decisions involving almost similar facts cannot be used as a precedent to
determine the conclusions on facts in the case in hand. This view finds support in a
judgment of this Court in Pandurang Tukia and Bhillia v State of Hyderabad128,
wherein while considering the applicability of Section 34, I.P.C. this Court held
thus:-
But to say this is no more than to reproduce the ordinary rule about circumstantial
evidence, for, there is no special rule of evidence for this class of case. At bottom, it
is a question of fact in every case and however similar the circumstances, facts in
one case cannot be used as a precedent to determine the conclusion on the facts in
another. All that is necessary is either to have direct roof of prior concert, or proof of
circumstances which necessarily lead to that inference, or, as we prefer to put it in
the time-honoured way, “the incriminating facts must be incompatible with the
innocence of the accused and incapable of explanation on any other reasonable
hypothesis”
Bhabha Nanda Barma v The State of Assam129, it was observed that prosecution
must prove facts to justify an inference that all participants of the acts had shared a
common intention to commit the criminal act which was finally committed by one or
more of the participants.
In Shankarlal Kacharbhai and ors v State of Gujarat130 this court has interpreted the
word “furtherance” as “advancement or promotion”
In Sukumar Roy v State of West Bengal131, there was a 4 inches deep wound in
abdomen caused by the accused by piercing deceased with Ballam. The incident

125
Nand Kishore v State of MP 2011 CrLJ 4243 SC
126
ibid
127
Bengali Mandal v State of Bihar 2010 CrLJ 1420 SC
128
1955(1) SCR 1083
129
AIR 1977 SC 2252
130
AIR 1965 SC 1260)

33 | P a g e
 occurred out of altercation between the accused and deceased who were co-sharers
of a plot. It was proved by evidence of eye-witnesses, corroborated by medical
evidence. The Intention of accused is clear from the nature of injury. In these
circumstances the conviction under Sections 304, Part I, 34 was proper.
In the case at hand we can deduce that there was common intention and knowledge
from the following factors:
a) From the circumstantial evidence we can deduce that all the five accused
had knowledge as well common intention of all the occurrences.
Circumstantial evidence means a combination of facts creating a network through
which there is no escape for the accused because the facts taken as a whole do not
admit of any other inference but of his guilt.
While it is undoubtedly for the prosecution to prove its case beyond reasonable
doubt but the standard to be applied for evaluating the evidence in a case of
circumstantial evidence vis-à-vis eye witness account would vary and slightly
different yardstick for assessment has to be applied. It is for this reason only that
the courts have repeatedly emphasized that the chain of circumstances against an
accused in a circumstantial evidence must be directed only towards the guilt of the
accused and admit no other hypothesis, where as in case of evidence of eye-
witness a chain of circumstances is not required and one good eye-witness is
sufficient to record a conviction.132 In a case based on circumstantial evidence one
circumstance by itself may not unerringly point towards the guilt of the accused. It
is the cumulative result of all the circumstances, which could matter.133
It is well settled in law that circumstantial evidence should only point towards the
guilt of the accused and should not support any other hypothesis, but it is not to
say that the prosecution must meet each and every hypothesis put forward by the
accused how-ever far-fetched and fanciful it might be. Nor does it mean that the
prosecution evidence must be rejected on the slightest doubt because the law
permits rejection if the doubt is reasonable and not otherwise.134

131
2006 (1) CHN 203
132
Vikram Singh v State of Punjab, AIR 2010 SC 1007
133
Gade Lakshmi Mangraju v State of Andhra Pradesh, AIR 2001 SC 2677
134
State of UP v Ashok Kumar Srivastava, AIR 1992 SC 840; Hanumant v State of Madhya Pradesh, AIR 1952
SC 343; Dharam Das Wadhwani v State of Uttar Pradesh, AIR 1975 SC 241; Jagta v State of Haryana, AIR
1974 SC 1545

34 | P a g e
 This was reiterated by the court in State of UP v Satish135, wherein the court held
that, “There is no doubt that conviction can be based solely on circumstantial
evidence but it should be tested by the touchstone of law relating to circumstantial
evidence laid down by the court in the case of Hanumant Govind Nargundkar v
State of MP136”
If we take the above cases in consideration to the case at hand it is quite evident
that all the accused had common intention and knowledge to commit the offences
against the sisters. First incident which proves this is when, after the judgement
was pronounced and the sisters went to the temple, Pt. Kali Charan along with his
sons had blocked the gate of the temple and then asked Bhawani and Jagga to
bring laathis to teach life lesson to the women specially the sisters. The accused
from the very first day the sisters tried to change the custom had motive to take
revenge from them and teach them life lesson. The accused had another reason to
kill the sisters, as because of the sisters trying to enter the temple and changing the
custom, their position in the temple as Priests was in danger specially the
positions of Bhanu and Kalu as they had been given the position only because of
the influence of their father. This can also be corroborated by the statement given
by Mrs. Radha that even earlier Kali Charan had tried to conspire against her
husband and tried to remove him from the temple.
Further, the statement of eye-witness that he had seen four people wearing saffron
dhotis dragging two girls into an SUV; it is contended by the appellants that the
four people were Bhanu, Kalu, Jagga and Bhawani as they were priests in the
temple and saffron dhoti is their casual attire. Then, the extra-judicial confessional
statement made by Bhawani to his wife also corroborates with the chain of events
and very strongly supports the contention of the appellants in this case.
It is further submitted before the Hon‟ble Court that common intention can be
developed at any time during the transaction. However, in this case, the accused
had common intention right from the beginning which can be deduced from the
above-mentioned facts and circumstances.

135
2005 (3) SCC 114
136
Supra Note 134

35 | P a g e
 b) The circumstantial evidence can be proved beyond reasonable doubt by
the confession made by Bhawani to his wife.
An admission is concession or voluntary acknowledgement made by a party or
someone identified with him in legal interest of the existence of certain facts
which are in issue or relevant to an issue in the case. The predominance
characteristic of this type of evidence consists in its binding character.
Admissions are broadly of two types:
(i) Judicial Admission, and
(ii) Extra Judicial Admission
Judicial Admissions are formal admissions made by a party during the
proceedings of the case. Extra Judicial Admissions are informal admissions not
appearing on the record of the case.
An admission is the best evidence that an opposing party can rely upon, and
though not conclusive, is decisive of the matter, unless successfully withdrawn or
proved erroneous.137
Unlike judicial admissions they are binding only partially and not fully, except in
cases where they operate as or have the effect of estoppel in which case again they
are fully binding and may constitute the rights of the parties.138
It is a fairly settled principle in law that admission is the best piece of evidence
against a person making the admission. It is, however, open to the person making
the admission to show as to why the admission is not to be acted upon.139
Where a party makes an oral admission to a witness who deposes to the fact of
making such admission, the admission can be used as legal evidence against the
party making the admission even though it was not put to him.140
Confessions are also of two types: Judicial and Extra Judicial. Judicial
Confessions are those which are made before a Magistrate or a court in the course
of Judicial Proceedings. Extrajudicial Confessions are the confessions which are
made by a party to or before a private individual.

137
Narayan Bhagwantrao Gosavi Balajiwale v Gopal Vinayak Gosavi, AIR 1960 SC 100; Basan Singh v Janki
Singh, AIR 1967 SC 341
138
Ayodhya Prasad v Bhawani Shanker, AIR 1957 All 1 (FB)
139
Delhi Transport Corporation v Shyam Lal, AIR 2004 SC 4271
140
Parasram v Champalal, AIR 1957 MB 118

36 | P a g e
 If the evidence relating to extra-judicial confession is found credible after being
tested on the touchstone of credibility and acceptability, it can solely form the
basis of conviction.141
An extra-judicial confession, if voluntary and true made in a fit state of mind, can
be relied upon by the court. The confession will have to be proved like any other
fact. The value of evidence as to confession, like any other evidence depends upon
the veracity of the witness to whom it has been made. The reliability of the
witness to whom it has been made. It is not open to any court to start with a
presumption that extra-judicial confession is a weak type of evidence.142
If on examination and comparison, the confession appears to be a probable
catalogue of events and naturally fits in with the rest of the evidence and
surrounding circumstances, it may have taken to satisfy the test of trust-
worthiness.143
It is well settled that conviction can be recorded solely on the basis of extra-
judicial confession if it is found to be credible and worthy of acceptance.144
A free and voluntary confession is deserving of highest credit, because it is
presumed to flow from the highest sense of guilt.145
The court has a duty to evaluate the evidence concerning the confession by
looking at all aspects. The twin test of a confession is to ascertain whether it was
voluntary and true. Once those tests are found to be positive the next endeavour is
to see whether there is any other reason which stands in the way of acting on it.
Even for that, retraction of the confession is not the ground to throw the
confession overboard.146 It has been held in the case of Nishi Kant Jha v State of
Bihar147, that the High Court had acted rightly in accepting the inculpatory part
and piecing the same with the other evidence to come to the conclusion that the
appellant was the person responsible for the crime.148
By the use of the expression „corroboration of material particulars‟ the court has
not laid sown any proposition contrary to what has been clarified in Subramania

141
State of Rajasthan v Rajaram, AIR 2003 SC 3601
142
Kulvinder Singh v State of Haryana, 2011 AIR SCW 2394
143
Shankaria v State of Rajasthan, AIR 1978 SC 1248
144
Velayuda Pulavar v State by Sub-Inspector of Police, AIR 2009 SC (Supp) 2307
145
R v Warwickshall, (1783) Leach 263
146
State of Tamil Nadu v Kutty, AIR 2001 SC 2778
147
AIR 1969 SC 422
148
Keshoram Bora v State of Assam, AIR 1978 SC 1096

37 | P a g e
 Goundan’s Case149, as regards the extent of corroboration required. The above
expression does not imply that there should be material particulars. It is enough
that there is broad corroboration in conformity with the general trend of the
confession.
Where an extra-judicial confession is made to a close relative and a person who is
interested in the accused and who is himself a respectable-ryot, there was no
motive for him to falsely implicate the accused and it was in the probable and
natural course of conduct that the accused would go and unburden himself to such
a person in order to obtain his advice as to his future course of conduct, there
should be no hesitation to accept it as true.150
The evidence furnished by the extra-judicial confession made by the accused to
witnesses cannot be termed to be tainted evidence. If the Court believes the
witness before whom the confession is made and it is satisfied that the confession
was voluntary, and then in such a case conviction can be founded on such
evidence alone.151
Keeping in consideration the above judgments it should be noted that the accused
Bhawani after returning home on the night of 29th December 2016, at around 3:00
AM asked his wife to pack their bags as they were going to go to their relatives
house and on asking he told his wife that on the pursuance of Pt. Kalicharan, who
said bad things about the sisters, he had committed a sinful act for which God will
never forgive him.152 Comparing his statement with the events it can easily be
deduced that the sinful act he was talking about is the murder of the sisters and
rape of Riya.
b) That the burden of proving the presence of dead body and murder weapons
in the sanctum sanctorum is on Pt. Kali Charan.
In the present case although the accused Pt. Kali Charan called and informed
police about the presence of a dead body in the Sanctum Sanctorum of the
temple153, it was his duty to explain the presence of the body in that part of the
temple where only priests could go and he being the pontiff had the
responsibility to explain. Moreover, two daraatis which have been recovered

149
Subramania Goundan v State of Madras, 1958 SCR 428
150
In re Muthukarunga Komar, AIR 1959 Mad 175
151
Maghar Singh v State of Punjab, (1975) 4 SCC 234
152
¶2, Supra Note 87
153
Supra Note 83

38 | P a g e
 from the temple premises were sharp and sufficient in nature to cut a soft object
like skin. The cut on the victim‟s neck measuring of 1.5 inches is possible to be
caused by the weapons recovered and another daraati was recovered from the
house of Pt. Kali Charan.154
In a case it was held by the Hon‟ble Supreme Court that if the appellant claims
that he was not present when the murder of the deceased took place at his
residence, then it was for him to explain as to how the dead body was found in
his house and in this case since he did not explain and other circumstantial
evidences pointed towards his guilt, he was convicted for the offence under
Section 300 of IPC.155

4. WHETHER ALL ACCUSED ARE GUILTY FOR COMMITTING RAPE OF

RIYA?
a) The accused are guilty of the offence.
It is humbly submitted before the Hon‟ble Supreme Court that the accused are guilty
for the rape of Riya. Section 375 of the Indian Penal Code makes the offence of
Rape punishable. To establish the offence of rape following elements need to be
fulfilled:
i. Against her will or consent; and
ii. Sexual intercourse
The burden of proving these elements lies on the prosecution.156
i. Against her will or consent
It is pleaded before the Hon‟ble court that the offence was committed without her
will or consent. The expressions “against her will” and “without her consent” may
overlap sometimes but surely the two expressions have different connotation and
dimension. The expression “against her will” would ordinarily mean that the
intercourse was done by a man with a woman despite her resistance and
opposition. On the other hand, the expression “without her consent” would
comprehend an act of reason accompanied by deliberation.
Court in a long line of cases has given wider meaning to the word „consent‟ in the
context of sexual offences. The word consent has been explained as an act of

154
¶8(a) of Supra Note 100
155
Polamuri Chandra Shekhararao v State of Andhra Pradesh, (2012) 7 SCC 706
156
Priya Patel v State of MP and Another AIR 2006 SC 2639

39 | P a g e
 reason accompanied with deliberation, the mind weighing as in a balance, the
good or evil on the either side.157
It is further stated that consent supposes three things- a physical power, a mental
power and a free and serious use of them and if consent is obtained by
intimidation, force, meditated imposition, circumvention, surprise or undue
influence, it is to be treated as delusion and not a free act of the mind.158
In order to constitute rape there need not be resistance to the utmost and a woman
who is assaulted need not resist to the point of risking being beaten into
insensibility and if she resists to the point where further resistance would be
useless or until her resistance is overcome by force or violence, submission
thereafter is not consent.159
That there was no consent on the part of Riya can be adduced from the following
facts:
i. The fact that she was murdered.160
ii. The autopsy report clearly states the presence of nail abrasion marks,
bruises as well as ligature marks on her body which indicates
resistance on her part.161 The report further states that hymen of the
deceased was found to be torn. Mucosa of the stomach, small intestine
and large intestine were found congested and that a 20 cm of
cylindrical rod has been into it which has caused the hymnal tear into
3‟0clock to 8‟oclock in position.162
iii. The statement of the eye witness that he heard screams of two girls
who were being dragged by four men wearing saffron dhotis into an
SUV.163
ii. Sexual Intercourse
Penetration is the sine qua non for an offence of rape.164 In order to constitute the
offence of rape there must be evidence clear and cogent to prove that some part of

157
Jowitt‟s Dictionary of English Law (Second Edition), Volume 1 (1977) at page 422
158
State of UP v Chhoteylal, AIR 2011 SC 697
159
People v McIlvain 55 Cal. App. 2d 322
160
¶14 of page 3 the Moot Proposition
161
Supra Note 88
162
Annexure 2-B of the Moot Proposition at Pg. 11
163
Supra Note 74
164
AIR 2007 SC (Supp) 49

40 | P a g e
 the virile member of the accused was within the labia of the pudendum of the
woman, no matter how little.165
Where from the evidence on record and even the findings recorded by the doctor
it was clear that there was penetration, it would not be a cause of merely an
attempt to commit rape but it would constitute an offence defined in Section 375
of IPC.166 In the present case both assault and penetration has been proved in the
post-mortem report.167
From the perusal of the autopsy report168 it can easily be figured out that there was
penetration. In the case at hand the post-mortem report of Riya clearly states that
there were vaginal injuries which were caused due to forceful penetration by two
or more persons. The report further states that hymen of the deceased was found
to be torn. Mucosa of the stomach, small intestine and large intestine were found
congested and that a 20 cm of cylindrical rod has been into it which has caused
the hymnal tear into 3‟0clock to 8‟oclock in position.169
Where the vagina of the deceased victim was found to have received injuries and
hymen was partially torn and blood clots were found present over injured parts in
the vagina and the medical report showed that injuries to genitalia were caused
during sexual assault and that injury to liver was caused by application of blunt
weapon, it could be said that the prosecution had proved beyond doubt that rape
was committed and in order to commit rape blunt force was applied.170
In the present case as well it is evident from the facts and post-mortem report of
the deceased that she was subjected to the barbaric act and that the accused are
guilty of the offence beyond any reasonable doubt.
Hence, it is humbly submitted before the Hon‟ble court that the prosecution has
proved the existence of the elements of the offence and has also proved its case
beyond reasonable doubt.
b) The offence need not be committed by each and every accused.
It is humbly submitted before the Hon‟ble Court that in the present case to make all
the five accused guilty of the offence of rape the offence need not be committed by
each and every one of them.

165
Aman Kumar and Another v State of Haryana AIR 2004 SC 1497 and 2006 (10) Scale 45
166
(1997) 1 Cur Cri R 487 (489) (MP)
167
Supra Note 88
168
Supra Note 88
169
Supra Note 93
170
Mohd. Chaman v The State 1998 CriLJ 3739 (3744) (DB) (Delhi)

41 | P a g e
 Where a woman is raped by one or more in a group of persons acting in furtherance
of their common intention, each of the persons shall be deemed to have committed
gang rape within the meaning of Section 376D of the Indian Penal Code. This has
been incorporated in the code with a view to effectively deal with the growing
menace of gang rape. In such circumstances, it is not necessary that the prosecution
should adduce clinching proof of a completed act of rape by each one of the accused
on the victim or on each one of the victims where there are more than one in order to
find the accused guilty of gang rape and convict them under Section 376 of IPC.171
Where it has been conclusively proved that the victim has been raped by one or
more in a group of persons, each of them is guilty of gang rape under section
376(2)(g) of the Indian Penal Code.172
To prove that the offence came under the ambit of gang rape the prosecution must
prove:
(i) That more than one person had acted in concert with the common intention
to commit rape on the victim;
(ii) That more than one person had acted in commission of crime of rape with
pre-arranged plan, prior meeting of mind and with element of participation
in action.
The court in various cases has observed that the prosecution must adduce evidence
to prove that more than one accused has acted in concert and in such an event, if
rape has been committed by even one of the accused, then all will be guilty
irrespective of the fact that she has not been raped by all of them. Therefore it is not
necessary for the accused to adduce evidence of a completed act of rape by each and
every one of the accused.173 If a woman is raped by a group of persons, then each of
the persons who acted in furtherance of the common intention is deemed to have
committed rape.174
In the present case it is clearly mentioned in the post-mortem report of the deceased
that the vaginal injuries suggest forceful penetration by more than two persons.175
Hence, in the present case by taking into consideration the above-mentioned

171
Pramod Mahto v State of Bihar AIR 1989 SC 1457
172
2005(3) UC 2001 (2018) (DB) (Uttra)
173
Ashok Kumar v State of Haryana AIR 2003 SC 777, Bhupinder Sharma v State of Himachal Pradesh AIR
2003 SC 4684, Pradeep Kumar v Union Administration Chandigarh AIR 2006 SC 2992 and 2006 (2) Cal HN
455 (460)(DB)(Cal)
174
(1996) 3 Rec Cri R 128 (132) : (1996) 3 All Cri LR 784 (P&H)
175
Supra Note 88

42 | P a g e
 judgments it should be considered that the offence of rape was committed by all the
accused in the furtherance of a common intention and all of them should be held
liable equally.
c) The prosecution has proved its case beyond reasonable doubt.
It is humbly submitted before the Hon‟ble court that the prosecution has successfully
proved its case beyond reasonable doubt in order to prove the guilt of the accused
beyond reasonable doubt on which basis it should also be considered that the
Hon‟ble High Court erred in its judgment by acquitting the accused. In the present
case even though the prosecutrix is dead and as such cannot be examined in the case,
the prosecution case should not be thrown overboard because of the non-availability
of the victim for non-examination, the court can record conviction even if the
offence is made out on the evidence available on record.176 In order to substantiate
this, following factors must be taken into consideration:
i. Medical Evidence
In case of rape the medical evidence plays vital role in determination of the guilt
or innocence of the accused. Act of forcible intercourse without consent and
against her will causes some external and internal injuries on the victim.
In cases of rape where the medical evidence supports the fact that the offence was
committed against the victim as the doctor found that her hymen was ruptured
recently and was bleeding and some injuries on her private parts were also noted
by the doctor, the conviction of accused under Section 376 was proper.177
The Apex Court in the case of Mafabhai Nagarbhai Raval v State of Gujarat178
has pointed out that, “It is needless to say that the doctor who has examined the
deceased and conducted the post-mortem is the only competent witness to speak
about the nature of injuries and the cause of death.”
The Post-Mortem report of the deceased supported rape and bodily injury. 179 The
report suggested the presence of Nail abrasion marks over the left side of the neck,
different bruises marks were also present over the right side of the neck180 also
there were presence of ligature marks.181 Further it was also suggested that the
hymen was found to be torn, mucosa of stomach, small intestine and large

176
State of Karnataka v Mahabaleshwar Gourya Naik AIR 1992 SC 2043
177
(1987) 2 Crimes 510 (512) : (1987) 2 Reports 28 (Madh Pra)
178
AIR 1992 SC 2186
179
Supra Note 88
180
Supra Note 88
181
Supra Note 93

43 | P a g e
 intestine were found to be congested, the reason for which was insertion of a 20
cm cylindrical rod.182
Thus, from the above mentioned cases and medical evidences it can be concluded
that the medical examination by furthering confirmation of rape upon the victim
has corroborated the case of the deceased and thus the guilt of accused can be
proved.
ii. Statement of the eye witness
It is humbly submitted before the Hon‟ble Court that Prosecution Witness III „Mr.
Krishna Das‟ in his statement had said that on 29th of December 2016 at around
11:30 PM he had heard screams of two girls and when he followed the direction
of the noise he witnessed that two girls were being dragged by four men who were
wearing saffron dhotis into an SUV.183
It has been held by the Supreme Court that the identification of the accused either
in the test identification parade or in Court is not a sine qua non in every case, if
from the circumstances the guilt is otherwise established. Many a times, crimes
are committed under cover of darkness when no one is able to identify the
accused. The commission of crime can be proved also by circumstantial
evidence.184 Evidence of eye-witness as to date and time of occurrence, hymen
being found ruptured and bruises found around it are sufficient evidences to prove
crime.185
In the present case the even though the eye witness was not able to see the faces of
the people dragging the girls it can very well be concluded from the facts that
those four people were the accused in this case. The reasons being:
(i) All of them were wearing saffron dhotis. Since all the accused are
priests in the temple of Lord Jogeswara, saffron dhoti is their casual
attire.186
(ii) The girls being dragged into an SUV, which belonged to one of the
accused.187

182
Supra Note 88
183
Supra Note 74
184
Visvewaran v State Represented by SDM AIR 2003 SC 2471
185
Mange v State of Haryana AIR 1979 SC 1194 (1195)
186
Supra Note 74
187
Supra Note 74

44 | P a g e
 (iii) The same day the SUV belonging to Jagga188 was found in vicinity
near Mohini Bazar from which two lathis189 with the blood stain190 of
the deceased were found.191
These circumstances are enough to prove that the accused in this case are guilty of
the offence of rape committed on the deceased.
iii. Chain of circumstances established
It has been held by the court in a case that man tells lies but circumstances do
not.192
In a case it has been observed by the Apex Court that in a case based on
circumstantial evidence, the settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and such circumstances should
be complete and there should be no gap left in the chain of evidence. Further, the
proved circumstances must be consistent only with the hypothesis of the guilt of
the accused and totally inconsistent with his innocence.193
Then again in a case194 the court laid down certain tests which need to be fulfilled
to establish circumstantial evidence:
(i) The circumstances, from which an inference of the guilt is sought to be
drawn, must be cogently and firmly established.
(ii) Those circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused.
(iii) The circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and no one
else.
(iv) The circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than
that of guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent with
his innocence.

188
Supra Note 76
189
ibid
190
Supra Note 79
191
¶ 12 of the Moot Proposition at Pg. 3
192
Kamaljit Singh v State of Punjab 2007(2) Law Herald (P&H) (DB) 1449
193
C. Chenga Reddy v State of Andhra Pradesh 1996 (10) SCC 193
194
Pedala Veera Reddy v State of Andhra Pradesh AIR 1990 SC 79

45 | P a g e
 Circumstantial evidence is probable and has a great weight in those cases where
victim is not available for evidence due to gruesome of murder and in cases where
child witness or any other reliable witness which are not of fatal nature to throw
out a reliable prosecution case and discretions are required to be exercised with
great caution and only when the exigency of justice is required.195
It has been held in many cases where the circumstantial evidence is conclusive in
nature as well as facts of the case which is in state of things or relation of things,
capable of being perceived by the senses and also depends upon the mental
condition of any person, secondly the conclusion of the evidence is fully proved
and thirdly the chain of circumstances must be so linked that there must be no gap
in it.196
In the present case circumstantial evidence can very well be established by the
following chain of events:
(i) On the 23rd of December, 2016 the Hon‟ble Supreme Court of Indiana
pronounced its judgement wherein it allowed the entry of women in
the temple of Lord Jogeshwara.197
(ii) On the 24th of December, 2016 the girls (Reema and Riya) after
receiving copy of the judgment, along with some other women tried to
enter the temple and on their way many people (including men and
women) tried to stop them. When they reached the gate of the temple,
Pt. Kali Charan blocked the gate along with his sons Bhanu and Kalu
and also directed the other two priests Bhawani and Jagga to bring
lathis for teaching life lesson to the sisters.198
(iii) On the 27th of December, 2016 Jagga filed an FIR for the theft of his
SUV, the duplicate keys of which was possessed by Bhanu and Kalu as
well.199
(iv) On 29th of December at around 11:30 PM the Prosecution Witness III,
Mr. Krishna Das heard the screams of two girls and when he followed

195
Harman Singh v M/s Bhushan Metallics Ltd. 2007 (2) Law Herald (P&H) 1272
196
Mahmood v State AIR 1976 SC 69; Kailash v State AIR 1979 SC 1711 ; State v Sukhpal AIR 1984 SC 207;
Tara Devi v State AIR 1991 SC 342
197
Supra Note 71
198
Supra Note 72
199
Supra Note 73

46 | P a g e
 the noises he saw four men clad in saffron dhotis dragging two girls
into an SUV.200
(v) Later the same night when the girls did not return home till 01:00 AM
their mother went to file a complaint at the police station, the police
however, refused to lodge an FIR but started searching for girls.201
(vi) Later that night the police while patrolling discovered a suspicious
SUV which belonged to Jagga202 in an abandoned jungle near Mohini
Bazar203 from which two lathis204 with the blood stain of the deceased
were found.205
(vii) Then at around 3:00 AM that night Bhawani returned home and told
his wife that a sinful act had been committed by him and God will
never forgive him for that act, which he had committed because Pt.
Kali Charan had brain-washed him and instigated him by saying wrong
things about the sisters and then the next morning he along with his
wife went to his relatives house outside Katra206, from where he was
arrested on 11th January, 2017.207
(viii) The watchman who was on duty that night, who is also Prosecution
Witness V, said in his statement that Pt. Bhawani did not return home
that night, however he was not there for half an hour as he went to the
have tea at 3:00 am.208
(ix) Next day at 5:30 in the morning, Pt. Kali Charan called an informed
the police that a dead body was lying in the sanctum sanctorum of the
temple, the body was later recognised to be that of Reema‟s.209
(x) Then during preliminary investigation a dead body was discovered
near a jungle near Mohini Bazar on 31st December which was
recognised to be of Riya‟s.210

200
Supra Note 74
201
Supra Note 75
202
Supra Note 76
203
¶ 12 of the Moot Proposition at Pg. 3
204
Supra Note 76
205
Supra Note 79
206
Supra Note 80
207
Supra Note 76
208
Supra Note 82
209
Supra Note 83
210
Supra Note 84

47 | P a g e
 (xi) The post-mortem report of Riya211 suggested that there were vaginal
injuries caused because of forceful penetration by more than two
persons.212 The report further suggested the presence of Nail marks on
the left side of the neck213, bruised on the right side of the neck214,
strangulation marks215 and ligature marks on the body of Riya.216
From the above events it is very evident that the circumstances are not only
consistent with the guilt of the accused but also inconsistent with their innocence.
It is therefore pleaded before the Hon‟ble Court to hold the accused guilty of the
offence of Rape and award appropriate punishment to them.

211
Supra Note 88
212
Supra Note 88
213
Supra Note 88
214
Supra Note 88
215
Supra Note 88
216
Supra Note 93

48 | P a g e
 PRAYER FOR RELIEF

Wherefore, in the lights of issues raised, arguments advanced, reasons given and authorities
cited, this Hon‟ble Court may be pleased to:

1. ADJUDGE that Criminal Appeal is maintainable under Art 134 of the Constitution of
Indiana.
2. ADJUDGE that Curative Petition is not maintainable under Art 137 of the
Constitution of Indiana.
3. ADJUDGE that prohibiting women of a particular age group from entering Lord
Jogeshwara temple is violative of the fundamental rights enshrined under the
constitution of Indiana, and the claim for the exclusion of women from religious
worship founded in religious text is subordinate to the constitutional values of liberty,
dignity and equality.
4. ADJUDGE that Accused Pt. Kali Charan, Bhanu, Kalu, Bhawani and Jagga are guilty
of abduction and murder of Riya and Reema.
5. ADJUDGE that all the accused are guilty of committing rape of Riya.
6. ADJUDGE that all the accused should be awarded appropriate punishment for
committing the offences under Sections 302, 364, 34, 120A and 120B.

And any other relief that this Hon‟ble Court may be pleased to grant in the interests of justice,
equity and good conscience.

FOR WHICH THE COUNSELS SHALL FOREVER PRAY

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd/-
COUNSELS FOR CBI AND STATE

49 | P a g e