4th National Moot Court Competition , 2019

BEFORE THE HON’BLE HIGH COURT OF BOMBAY

AT BOMBAY.

CRIMINAL APPLICATION AN. 226

ABDUL MANNAN ……………………

APPELLANT
v.
STATE OF BIHAR ………………………
RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

-Memorandum Of Respondent
 TABLE OF CONTENTS

TABLE OF CONTENTS …………………………………………………………

INDEX OF ABBREVIATIONS ………………………………………………….

INDEX OF AUTHORITEIS ……………………………………………………

STATEMENT OF ISSUES ……………………………………………………………...

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

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

PRAYER …………………………………………………………………………

-Memorandum Of Respondent
 LIST OF ABBREVIATIONS

AIR All India Reporter

IC Indian Court

Cr.PC Criminal Procedure Code

I.P.C Indian penal code

SC Supreme Court

SCC Supreme Court Cases

HC High Court

Sec Section

Exh Exhibit

& And

V.S Versus

-Memorandum Of Respondent
INDEX OF AUTHORTIES

STATUTE:
1. The Indian Penal Code 1860.
2. Evidence Act ( 1 of 1872 )
3. Criminal Procedure

WEBSITES:

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://manupatra.co.in

4. http://www.scconline.com

5. www.livelaw.in

BOOKS:

1. KD GAUR ( INDIAN PENAL CODE )

2. KD GAUR ( EVIDENCE ACT 1872 )

3. R.V.KELKAR’S ( CRIMINAL PROCEDURE )

-Memorandum Of Respondent
TABLE OF CASES:-

-Memorandum Of Respondent
STATEMENT OF JURISDICTION

-Memorandum Of Respondent
 QUESTIONS PRESENTED(ISSUES)

1.Whether it is a fit case where the F.I.R should be quashed under section 482 of the
Criminal Procedure Code,1973and in the interim, the matter in the trial court be stayed by
the Hon’ble Bombay High Court?

2. Whether Amit can claim the benefit of Probationary Offenders Act, an whether he can be
accused of rape under I.P.C , 1860 besides other alleged offences?

3. Whether any amendments / changes are required to be made in the existing laws against
women or any directions / guidelines are required to be given by the Hon’able Court, if yes ,
what would be the nature of amendments / changes or directions / guidelines, if any?

4.Whether compensation can be asked in such criminal matters, if yes by whom and from
whom?
-Memorandum Of Respondent
 STATEMENT OF FACTS

1. Ms Priya Pandaya who is presently a college student studying in the 4th year of Bachelor Of
Dental Surgery (B.D.S) in Mumbai city has alleged Mr Amit Shabbir 26 years old a young
manager for commiting various offences against her.

2. Ms. Priya alleges that Amit used to follow her upto her college and even stalk her on facebook due
to which she changed her timings of the college. She further alleges that whenever she goes to the
restaurant -cum-bar Amit used to stare her with ulterior motives.

3. She further alleges that Amit once tried to molest her by pulling her dupatta in the restaurant-cum-
bar. In all these years till the time she was 18 she was going through mental and emotional trauma.

4. She also states that . Amit asked her to meet him once to which she agreed so that she could tell
him not to follow her and to leave her alone.

-Memorandum Of Respondent
 SUMMARY OF ARGUMENTS

1. WHETHER THIS APPEAL FILED BEFORE THIS COURT BY WAY OF

SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT ?
It is humbly submitted before this Honourable SC that the petition has no locus
standi to approach the Honourable SC because the present case does not
involve any substantial question of law, the HC has considered the complete
scale of evidence properly and there has been no grave injustice. Also the SC will
not interfere with the concurrent finding of the courts below unless of course
the findings are perverse by error of law or there is gross miscarriage of
justice. Criminal appeals may not be brought to SC by appellant when they
are not covered by its jurisdiction. Therefore in the present case, whether the
appeal is filed by Md.Mannan v. State of Bihar is not maintainable.

2. WHETHER THE ACCUSED WAS LIABLE FOR CAPITAL

PUNISHMENT?

It is most humbly submitted before the Honourable Court that the High
Court held that under section 366,376,302 this crime extremely brutal ,
grotesque, diabolical, revolting or dastardly manner so as to arouse
intense and extreme indignation of community and when collective
conscience of the community is petrified, one has to lean toward the
death sentence. Accused is menace to the society and continue to be so,
threatening its peaceful and harmonious co-existence.

-Memorandum Of Respondent
 ARGRUMENTS ADVANCED

1. WHEATHER THE APPEAL FILED BEFORE THIS COURT BY WAY OF

SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT ?

It is humbly submitted before the Honourable SC that [A] the applicant has no locus
standi to approach the Honourable SC [B] because the present case does not involve
any substantial question of law,[C] there has been no grave injustice, [D] no
special circumstance are shown to exist.

It is most humbly submitted before this Honourable SC that in the case of

Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211, SC stated the basic
principles underlying Special Leave to Appeal under Article 136 of the Constitution of
India are:

i. The powers of this Court under Article 136 of the Constitution are very wide
but in criminal appeals this Court does not interfere with the concurrent
findings of fact, save in exceptional circumstances.
ii. It is open to this Court to interfere with the findings of fact given by .
then HC, if the HC has acted perversely or otherwise improperly.
iii. It is open to this Court to invoke the power under Article 136 only in
very exceptional circumstances as and when a question of law of general
public importance arises or a decision shocks the conscience of the Court.
iv. When the evidence adduced by the prosecution fell short of the test of
reliability and acceptability and as such it is highly unsafe to act upon it.
v. Where the appreciation of evidence and finding is vitiated by any error of
law or procedure or found contrary to the principles of natural justice, errors of record
and misreading of the evidence, or where the conclusions of the HC are
manifestly
perverse and unsupportable from the evidence on record.
-Memorandum Of Respondent
In the present case, it is pertinent to note that, none of the circumstances above are
fulfilled. As per the cited case, SC does not interfere with finding of the subordinate
courts in criminal case except exceptional circumstances are shown to exist, which is
not in this case. It is an ordinary situation that while exercising its power, reduces the
quantum of sentence after regarding various factors which are not evident that other
courts have seen.

Another ground to approach the Honourable SC under article 136 is that the case
involve substantial question of law. In present case, it is not evident that substantial
question of law is involved. After seeing various factors, it is open for the High Court to
mitigate the sentence of accused, and in various cases, it is also affirmed by Supreme
Court.

Also it is submitted before the honourable court that there is no grave injustice.
Inflicting accused in prison does not give justice to victims. It is evident that 5 persons
lost their lives but it cannot be compensated by imprisonment of both the accused. High
court has taken a correct view of law that both the party attains justice by reducing the
quantum of sentence and enhancing the fine. After 17 years of protracted trial, if Court
held that the accused is sent to prison for the period prescribed in Section 279, 337 and
304A, it will be a grave injustice in the part of accused as well as victims.

The SC observed in the Pritam Singh v. State, AIR 1950 SC 169, in

explaining how the discretion will be exercised generally in granting SLP:
The wide discretionary power with which this court is invested under it is to be
exercised sparingly and in exceptional cases only and as far as possible a
more or less uniform standard should be adopted in granting special leave in the
wide range of matters which can come up before it under article 136.

Thus, in the light of all the case cited and the evidence produced, the council wants to
conclude that in these case what the court has to see is interest of justice and the
interest of justice demands that the court should protect the respondents.
Therefore the question raised in the petition is not considered fit for consideration by
this court and
is liable to be dismissed.
-Memorandum Of Respondent
2. WHETHER THE ACCUSED WAS LIABLE FOR
CAPITAL PUNISHMENT?

It is humbly submitted before the Honourable supreme court, that accused is liable for
capital punishment. All the circumstances led the trail court to hold that the chain is
complete which points towards the guilt of the appellant and accordingly convicted him
as above. In the opinion of trail court,the case fell in category of the rarest of the rare
case and accordingly it inflicted the death penalty.The High Court concurred with the
finding of the trail court and affirmed the conviction and while doing so it observed as
follow:

1. As per disclosure made by the appellant and on his disclosure the dead body was
recovered from a lonely place surrounded and concealed by standing crops of wheat and
rahar. Hence the part of the confession made by appellant which is disclosure regarding
the place the dead body could be found, is clearly admissible as evidence under section
27 of the indian evidence act.

2. The rape and murder on the victim girl has been proved by medical evidence and
since such offence were committed against the victim soon after her kidnapping by the
appellant, a presumption arises against the appellant that he committed rape and murder
of the victim and tried to conceal the evidence of such offence by hiding the body at a
lonely place concealed by standing crop. No doubt such presumption can be rebutted if
reasonable explanation could be given by the appellant. But in this case no such
explanation has been brought on record. There is neither any defence witness nor any
reasonable suggestion to the witnesses nor any explanation by the appellant
under section 313 of the code of criminal procedure. Hence,the presumption
remain un rebutted

3. Crimes are committed in so different and distinct circumstances that it is impossible to lay
down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that
in deciding this question the number of persons killed is not decisive. Further crime being

-Memorandum Of Respondent
brutal and heinous itself do not turn the scale towards the death sentence. When the crime is
committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the community and when collective
conscience of the community is petrified, one has to lean towards the death sentence. But
this is not the end. If these factors are present the court has to see as to whether the accused
is a menace to the society and continue to be so, threatening its peaceful and harmonious co-
existence. The court has to further enquire and believe that the accused condemned
cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a
balance-sheet is to be prepared while considering the imposition of penalty of death
of aggravating and mitigating circumstances and just balance is to be struck. So long the
death sentence is provided in the statute and when collective conscience of the
community is petrified, it is expected that the holders of judicial power do not stammer,
de hors their personal opinion and inflict death penalty. These are the broad guidelines with
this Court has laid down for imposition of the death penalty.

3.These injuries show the gruesome manner in which she was subjected to rape. The victim of
crime is an innocent child who did not provide even an excuse, much less a provocation for
murder. Such cruelty towards a young child is appalling.

The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless
and defenceless child. This act no doubt had invited extreme indignation of the community and
shocked the collective conscience of the society. Their expectation from the authority
conferred with the power to adjudicate, is to inflict the death sentence which is natural and
logical. We are of the opinion that appellant is a menace to the society and shall continue to be
so and he can not be reformed. We have no manner of doubt that the case in hand falls in the
category of the rarest of the rare cases and the trial court had correctly inflicted the
death sentence which had rightly been confirmed by the High Court.

4.Now if we see some of the case of Supreme Court like In Bantu v. State of U.P 23
July 2008 this court itself held that It will be a mockery of justice to permit the accused to
escape the extreme penalty of law when faced with such evidence and such cruel acts. To
give the lesser punishment for the accused would be to render the justicing system of the

-Memorandum Of Respondent
country suspect. The common man will lose faith in courts. In such cases, he understands and
appreciates the language of deterrence more than the reformative jargon.

5. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has observed that
shockingly large number of criminals go unpunished thereby increasingly, encouraging the
criminals and in the ultimate making justice suffer by weakening the system's creditability.
The imposition of appropriate punishment is the manner in which the Court responds to the
society's cry for justice against the criminal. Justice demands that Courts should
impose punishment befitting the crime so that the Courts reflect public abhorrence of the
crime. The Court must not only keep in view the rights of the criminal but also the rights of
the victim of the crime and the society at large while considering the imposition
of appropriate punishment.

6. Kamta Tiwari v. state of Madhya Pradesh on 4 September 1996 The Judgment of

the Court was delivered by M.K. MUKHERJEE, J. The appellant was tried for and convicted of
Offences punishable under Sections 363, 376, 302 and 201 I.P.C. by the Additional Sessions
Judge, Shahdol For his conviction Under Section 302 I.P.G. he was sentenced to death and for
the other convictions to different terms of rigorous imprisonment. As the appeal preferred by
him in the High Court was dismissed, he has filed the instant appeal after obtaining special
leave.

7. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been held by this
Court that in the matter of death sentence, the Courts are required to answer new challenges
and mould the sentencing system to meet these challenges. The object should be to protect
the society and to deter the criminal in achieving the avowed object to law by
imposing appropriate sentence. It is expected that the Courts would operate the sentencing
system so as to impose such sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be. Even though the principles were
indicated in the background of death sentence and life sentence, the logic applies to all
cases where
appropriate sentence is the issue.

-Memorandum Of Respondent
PRAYER

-Memorandum Of Respondent
Therefore,in the light of facts stated,issued raised authorities citied and
argument advanced,it is humbly prayed and implored before the Honourable
supreme court, that it may be graciously pleased to adjudge and declared that-
1. The petition must be dismissed
2. Judgement of Honourable High Court upholded the death penalty is backed
by sound reasoning therefore is valid .

And pass any other Order, Direction, or relief that it may deem fit in the best
Interests of Justice, Fairness, Equity & Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Date : ……………………

Place : …………………...

Sd/-
(Counsel for Respondents)

-Memorandum Of Respondent
-Memorandum Of Respondent
-Memorandum Of Respondent
-Memorandum Of Respondent
 STATEMENT OF ISSUES

I. WHETHER THIS APPEAL FILED BEFORE THIS COURT BY WAY OF

SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?

II. WHETHER THE ACCUSED WAS LIABLE FOR CAPITAL PUNISHMENT?

III. WHETHER THE HIGH COURT WAS JUSTIFIED IN UPHELDING THE

CONVICTION OF TRAIL COURT?

-Memorandum Of Respondent
 SUMMARY OF ARGUMENTS

3. WHETHER THIS APPEAL FILED BEFORE THIS COURT BY WAY OF

SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT ?

It is humbly submitted before this Honourable SC that the petition has no locus
standi to approach the Honourable SC because the present case does not
involve any substantial question of law, the HC has considered the complete
scale of evidence properly and there has been no grave injustice. Also the SC will
not interfere with the concurrent finding of the courts below unless of course
the findings are perverse by error of law or there is gross miscarriage of
justice. Criminal appeals may not be brought to SC by appellant when they
are not covered by its jurisdiction. Therefore in the present case, whether the
appeal is filed by Md.Mannan v. State of Bihar is not maintainable.

4. WHETHER THE ACCUSED WAS LIABLE FOR CAPITAL

PUNISHMENT?

It is most humbly submitted before the Honourable Court that the High
Court held that under section 366,376,302 this crime extremely brutal ,
grotesque, diabolical, revolting or dastardly manner so as to arouse
intense and extreme indignation of community and when collective
conscience of the community is petrified, one has to lean toward the

-Memorandum Of Respondent
 death sentence. Accused is menace to the society and continue to be so,
threatening its peaceful and harmonious co-existence.

3.WHETHER THE HIGH COURT WAS JUSTIFIED IN UPHELDING

THE CONVICTION OF TRAIL COURT?

It is most humbly submitted before Honourable Court that yes High Court
was justified in uphelding the Conviction of Trail. Trail court held that
appellant is guilty of all the charges and sentenced him to undergo rigorous
imprisonment for 10 year for offence under section 366 of the penal code
life imprisonment under section 376 of the penal code, rigorous
imprisonment for 7 year for offence under section 201 of penal code and
death penalty for offence under section 302 of the penal code.

-Memorandum Of Respondent