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THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

Team Code:

BEFORE THE HON’BLE HIGH COURT OF VIJAYNAGAR


CRIMINAL APPELLATE JURISDICTION

THE APPEAL FILED UNDER 374(2) CHAPTER XXIX, CODE OF CRIMINAL PROCEDURE
IN CRIMINAL APPEAL NO: ____/ 2018

IN THE MATTER OF

PRASAD ......ACCUSED NO. 1/ APPELLANT 1


VIKRANT ……ACCUSED NO. 2/ APPELLANT 2

Versus

STATE OF DAKSHIN ......RESPONDENT

_______________________________________________________________________________________
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
_______________________________________________________________________________________

MEMORIAL ON BEHALF OF THE APPELLANT


THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

TABLE OF CONTENTS

S. No. Particulars Page No.


1. Index of Authorities

2. List of Abbreviations

3. Statement of Jurisdiction

4. Statement of Issues

5. Statement of Facts

6. Summary of Pleadings

7. Pleadings
1. WHETHER THE COURT OF SESSIONS JUSTIFIED IN
SENTENCING THE DEATH PENALTY
1.1 WHETHER THE CASE FALL UNDER THE RAREST
OF RARE CATEGORY
1.2 WHETHER THE APPELLANT COMMITTED THE
CRIME OF MURDER
2. WHETHER THE DECISION OF THE BOARD WAS
ERRONEOUS AND THE APPELLANT
SHOULD HAVE BEEN TREATED AS A CHILD
2.1 WHETHER THE JUVENILITY WILL DEPEND UPON
THE NATURE OF OFFENCE COMMITTED
2.2 WHETHER THE CONSTITUTIONAL SANCTION OF
AN ENACTMENT HAVE AN OVERRIDING EFFECT TO
AN INTERNATIONAL CONVENTION AND/OR
STATUTE, OF WHICH INDICA IS A SIGNATORY
3. WHETHER THE ACT OF COMMISSION OF CRIME IS
CULPABLE HOMICIDE
8. Prayer for Relief

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INDEX OF AUTHORITIES

STATUTES
1.
BOOKS

CASES
1.
WEBSITES REFERRED
1. Manupatra Online Resources, http://www.manupatra.com.
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.

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LIST OF ABBREVIATIONS

ABBREVIATION FULLFORM

AIR All India Reporter

HC High Court

CrLJ Criminal Law Journal

LR Law Review

WR Weekly Review

Hon’ble Honourable

v. Versus

CrPC Code of Criminal Procedure

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STATEMENT OF JURISDICTION

The Hon’ble High Court of Vijaynagar has the inherent jurisdiction to try, entertain and dispose off the
present case by virtue of Section 374(2) Chapter XXIX, CrPC.
The above provision reads as follows:
Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held
by any other Court in which a sentence of imprisonment for more than seven years has been passed against
him or against any other person convicted at the same trial; may appeal to the High Court.

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STATEMENT OF ISSUES

1. WHETHER THE COURT OF SESSIONS JUSTIFIED IN SENTENCING THE DEATH PENALTY


1.1 Whether the case fall under the rarest of the rare category
1.2 Whether the appellant committed the crime of murder
2. WHETHER THE DECISION OF THE BOARD WAS ERRONEOUS AND THE APPELLANT
SHOULD HAVE BEEN TREATED AS A CHILD
2.1 WHETHER THE JUVENILITY WILL DEPEND UPON THE NATURE OF OFFENCE
COMMITTED
2.2 WHETHER THE CONSTITUTIONAL SANCTION OF AN ENACTMENT HAVE AN
OVERRIDING EFFECT TO AN INTERNATIONAL CONVENTION AND/OR STATUTE, OF WHICH
INDICA IS A SIGNATORY
3. WHETHER THE ACT OF COMMISSION OF CRIME IS CULPABLE HOMICIDE

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STATEMENT OF FACTS
1. It was 8th June, 2018, when Prasad and Vikrant had seen Prithya for the first time on when she had
visited Bhojan Hotel with some of her friends. Since they first saw Prithya at Bhojan Hotel, Prasad and his
friend Vikrant continued stalking and eve teasing Prithya frequently till the time she waited at KT bus stop.
2. Prithya repeatedly warned Prasad and Vikrant of grave consequences but both laughed it off as a baseless
threat.On 3rd July, 2018; Vikrant had challenged and dared Prasad to be bold and convey his feelings to
Prithya thereby instigating him by questioning his manhood. Agitated by the continuous questioning of his
manhood, Prasad approached and proposed Prithya while she was waiting at the KT bus stop the very same
day along with Vikrant. Prithya rejected the unwelcoming advance by Prasad and slapped him in front of
bystanders present near the KT bus stop which offended Prasad deeply. In a fit of rage, Prasad threatened
Prithya of revenge and left the place with Vikrant.
3. Fearing the backlash, Prithya filed a FIR against Prasad and Vikrant at Kellor police station for
threatening, stalking and eve teasing by Prasad and Vikrant. After a week, on 10th July, 2018, Prasad and
Vikrant continued to stalk Prithya while she was leaving from her workplace. She left her workplace little
late at 8:00 pm (on 10th July, 2018) and boarded the Dakshin Express local from Kellor railway station at
8:30 pm. The compartment which Prithya boarded was empty. Prasad again tried to convince Prithya to give
in to his charms, but Prithya out rightly rejected him and slapped him again. Angered by it, Prasad alongwith
Vikrant nabbed her and Prasad raped her but both fled away immediately after seeing other people
approaching towards the place.
4. Around 11:00 pm, Vikrant returned back where Prithya was abandoned and raped her to fulfil his lust.
Prithya was still alive but in semi-conscious state and was resisting the onslaught with whatever little energy
that was left in her. Around 12:00 am, 11th July 2018, some nearby villager passing by noticed Prithya’s
lifeless body and rushed her to a nearby Government hospital, where she succumbed to her injuries around
12:30 am, 11th July 2018. After due investigation, the police found the record of FIR from the Kellor police
station filed by the victim against the suspects (Prasad and Vikrant)and police arrested Prasad and Vikrant
for further investigations on 17th July, 2018.On the next day 18th July, 2018, both the suspects/accused
were medically examined
5. On 30th September, 2018, the Sessions Court convicted Prasadguilty for the offences of murder and rape
and awarded capital punishment to him whereas Children’s Court awardedlife imprisonment to Vikrant for
murder and rape.
6. On 4 th October, 2018, Prasad appealed before the Hon’ble High Court of Vijaynagar against the verdict
given by Sessions Court challenging the capital punishment awarded to him while Vikrant appealed before
the Hon’ble High Court of Vijaynagar challenging the verdict given by Children’s Court for trying him as an
adult and sentencing life imprisonment to him.The matter is to be heard together by the Hon’ble High Court
in appeal.

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SUMMARY OF PLEADINGS
1. WHETHER THE COURT OF SESSIONS WAS JUSTIFIED IN SENTENCING CAPITAL
PUNISHMENT TO THE APPELLANT 1?
It is humbly submitted to the Hon’ble Court that death penalty is not an appropriate punishment in the
present case for the reason that the tests for awarding the death penalty have not been satisfied. The Act of
the Appellant 1 does not fall under the category of the “rarest of the rare” cases because of the nature and the
circumstances of the crime and the provisions which do not constitute the commission of the crime, socially
abhorrent nature of the crime and resulting in death sentence and thus the Court Of Sessions was not
justified in sentencing capital punishment to the appellant 1.

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PLEADINGS
1. WHETHER THE COURT OF SESSIONS WAS JUSTIFIED IN SENTENCING CAPITAL
PUNISHMENT TO THE APPELLANT 1?
It is humbly submitted to the Hon’ble Court that the death sentence is not an appropriate punishment for the
offense committed by appellant 1 because it is a cruel and unusual punishment and does not serve any
justifiable penological goals and is not proportional to the commission of crime especially not under the
facts of the case. Firstly, there was a lack mens rea and nor an actus rea for the commission of murder.

With respect to this issue, the Counsel humbly submits before this Hon’ble Court that the accused should not
be granted the death sentence. The submission in this response is twofold:

Firstly,
[2.1] THE DEATH PENALTY TO BE INFLICTED IN THE RAREST OF RARE CASES1
1. In Bachan Singh Case2, the Supreme Court expressed some outstanding reasons relating wrongdoing
and criminal by noting that “….in settling the level of discipline or settling on the decision of sentence
for different offenses, including one under Section 302 of [the] Penal Code, the court ought not bind its
thought “chiefly” or just to the circumstances associated with the specific wrongdoing, additionally give
due attention to the circumstances of the criminal.”
2. Further, in Santosh Kumar Bariyar v. State of Maharashtra3, the Supreme Court got an opportunity to
explain this further. The Court explained that “The rarest of rare dictum entrenches the policy that life
imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that
exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an
extraordinary burden on the court, in case it selects death penalty as the favored penalty, to carry out an
objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”
3. Therefore, the general rule now is to award life imprisonment and death sentence is the exception to be
awarded for special reasons in the rarest of rare cases. 4 Further, death sentence may be affirmed or
imposed should be legislatively limited to those where the offender is found to be so depraved that it is
not possible to reform him by any curative or rehabilitative therapy and even after his release he would
be a serious menace to the society and therefore in the interest of the society he is required to be
eliminated.5

1
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
2
Ibid.
3
(2009) 6 SCC 498
4
State of U.P. v. Shri Krishna and Others, AIR 1980 SC 898.
5
Law Commission of India, Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters, 41 (2014),
available at http://lawcommissionofindia.nic.in/cpds1.pdf , last seen on 11/5/2015.
MEMORIAL ON BEHALF OF THE APPELLANT
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4. Furthermore, the Court needs to draw a balance-sheet of aggravating and mitigating circumstances. Both
aspects have to be given their respective weightage.6 The Court has to strike a balance between the two
and see towards which side the scale/balance of justice tilts. The principle of proportion between the
crime and the punishment is the principle of `just deserts' that serves as the foundation of every criminal
sentence that is justifiable.7 In other words, the `doctrine of proportionality' has a valuable application to
the sentencing policy under the Indian criminal jurisprudence.
5. Moreover, in Machhi Singh v. State of Punjab8, the Court laid down certain guidelines while
considering the possibility of award of death sentence. The guidelines included that before opting for the
death penalty the circumstances of the offender also require to be taken into consideration along with the
circumstances of the crime. The option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant
circumstances.
6. Furthermore, the guidelines laid down in Bachan Singh Case9 specified that the mitigating
circumstances which could be considered by the Court while determining such serious issues of included
firstly, that the offence was committed under the influence of extreme mental or emotional
disturbance. Secondly, the age of the accused. If the accused is young or old, he shall not be sentenced to
death. Thirdly, the accused acted under the duress or domination of another person.
7. In yet another case of Vashram Narshibhai Rajpara v. State of Gujarat10 the Court held that the
intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge
and retaliation are also to be considered as the relevant factors.
8. The judges in the case of State v. Baisakha Singh11, awarded the life imprisonment to the accused
instead of death penalty while taking into consideration the young age of the accused.
9. Moreover, the Constitution of India under Article 2112 enshrines the right to life and personal liberty to
every person. However, death penalty denies due process of law13. Its imposition is always arbitrary and
irrevocable which forever deprives an individual of the opportunity to benefit from new evidence or new
laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.14
[2.2] THE ACT OF THE ACCUSED DOES NOT FALL UNDER THE PURVIEW OF RAREST OF RARE CASE
Factual Arguendo

6
Sheikh Ishaque v. State of Bihar, (1995) SCW 2001.
7
Surjaram v. State of Rajasthan, AIR 1997 SC 18.
8
AIR 1983 SC 957
9
Supra Note 11
10
(1996) 8 SCC 167
11
1999 CrLj 1399 (Raj)
12
Art. 21, the Constitution of India: No person shall be deprived of his life or personal liberty except according to procedure
established by law.
13
Furman v. Georgia, 408 U.S. 238.
14
Gregg v. Georgia, 428 U.S. 153.
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10. There is a lack of mens rea which is an essential element of crime in the instant case as well as the
physical element of the crime that is the event, behavior or state of affairs connected to the crime called
the actus rea of the crime. It is well understood that a person can only be held guilty of murder if it is
absolutely clear that the killing was done.
11. It is possible for courts to dispense with mens rea i.e. the mental element of the crime in whole or in part,
but they can never dispense wit actus reus. There are no ‘thought crimes’ without actus rea. If the actus
reas of a crime does not exist or occur, the crime is not committed.
12. The actus reus of murder comprises the elements of conduct, circumstances in which the conduct takes
place and the results i.e. the consequences of the conduct.
13. In the instant case, the appellant 1 nabbed the victim and stuffed her mouth with handkerchief to limit
her cries which are not indicative of any fatal injuries. Appellant 1 and Appellant 2 fled the spot
separately and appellant 1 neve returned to the scene of crime which is indicative of lack of common
intention between both the appellants.
14. Without admitting that the appellant is connected with the crime of murder, it is submitted that the
manner in which the crime was allegedly committed and the medical evidence, do not show the intention
to kill. The benefit of doubt ought to have been given to the appellant 1 as no evidence was established
to show the presence of the appellant 1 on the crime scene. Moreover, assuming that charges of murder
were proved, the sessions court should not have awarded the capital punishment as the case cannot be
termed as rarest of rare case. Therefore, it is asserted that sentencing exercise undertaken by the sessions
court was improper and against the mandate. Further arguing against the death sentence, it was
contended that the appellant had no intention of murdering victim but only wanted to injure her.
15. It is further opined y the counsel that the age of the appellant was 22 years at the time of the commission
of a crime and there was a possibility to reform. It is pertinent to take note of the ruling in Bachan Singh
v. State of Punjab to hold that a death sentence can be awarded only in the rarest of rare cases, only if an
alternative option was unquestionably foreclosed and only after full consideration of all factors keeping
in mind that a sentence of death was irrevocable and irretrievable upon execution. The Court remarked,
“It should always be remembered that while the crime is important, the criminal is equally important
insofar as the sentencing process is concerned.” It took into consideration the material on record
including overall personality, subsequent events to commute the sentence of death awarded to the
appellant and directed that he should not be released from custody for rest of his normal life.
Furthermore, the Court held that trial court relied on collective conscience to hold that the appellant
deserved death penalty but ignored the fact that the appellant was of young age at the time of
commission of offence and there was nothing to indicate that the appellant was beyond reformation and
rehabilitation, as mandated in the case of Bachan Singh. Although the conviction of the appellant was
confirmed, the death sentence was commuted to imprisonment for life.

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16. In Gudda @ Dwarkendra Vs. State of Madhya Pradesh15, it was upheld: In a civilized society - a tooth
for a tooth and an eye for an eye ought not to be the criterion to clothe a case with "the rarest of the
rate" jacket and the courts must not be propelled by such notions in a haste resorting to capital
punishment. Our criminal jurisprudence cautions the courts of law to act with utmost responsibility by
analyzing the finest strands of the matter and it is in that perspective that a reasonable proportion has to
be maintained between the brutality of the crime and the punishment. It falls squarely upon the court to
award the sentence having due regard to the nature of offence such that neither is the punishment
disproportionately severe nor is it manifestly inadequate, as either case, would not sub serve the cause
of justice to the society. In jurisprudential terms, an individual's right of not to be subjected to cruel,
arbitrary or excessive punishment cannot be outweighed by the utilitarian value of that punishment.
17. In the case of Rajesh Kumar Vs. State (NCT of Delhi), the Supreme Court has observed that from the
fact that accused can be rehabilitated in the society and is capable of being reformed, since the State has
not given any evidence to contrary, is certainly a mitigating circumstance which the High Court has
failed to take into consideration.
18. It is further submitted that the expression `special reasons' obviously means `exceptional reasons'
founded on the exceptionally grave circumstances of the particular case relating to the crime as well as
the criminal; the decision in Ravji Vs. State of Rajasthan16, which was subsequently followed in other
cases, wherein it was held that it is only characteristics relating to crime, to the exclusion of the ones
relating to criminal, which are relevant to sentencing in criminal trial, was rendered per incuriam qua
Bachan Singh in the decision in Santosh Kumar Bariyar.
19. Public opinion is difficult to fit in the rarest of rare matrix. People's perception of crime is neither an
objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to
conviction as also sentencing, at lest in capital sentencing according to the mandate of Bachan Singh and
Santosh Kumar Bariyar;
20. That, capital sentencing is one such field where the safeguards continuously take strength from the
Constitution; the rarest of rate case comes when a convict would be a menace and threat to the
harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be
in the category of the rarest of rate case. There must be no reason to believe that the accused cannot be
reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a
continuing threat to the society;
21. That, life sentence is the rule and the death penalty is the exception. The condition of providing special
reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic

15
Gudda @ Dwarikendra Versus State of Madhya Pradesh Criminal Appeal No.1870/2011
16
Criminal Appeal No. 1595 Of 1995

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features of a reasoning supporting and making award of death penalty unquestionable; the circumstances
and the manner of committing the crime should be such that it pricks the judicial conscience of the Court
to the extent that the only and inevitable conclusion should be awarding of death penalty.
22. It is, therefore, clear that the actions of the appellant 1 did not cause the death of the deceased. He,
therefore, lacks the requisite actus rea in the death of the deceased and cannot be held guilty for the
crime.

2. WHETHER THE SENTENCE AWARDED TO THE APPELLANT 2 WAS APPROPRIATE?

It is humbly submitted to the Hon’ble High Court of Vijay Nagar that the Children’s Court had sentenced
appellant 2 for life which is an erroneous decision as it is contradictory to the very purpose as well as the
provisions of Juvenile Justice (Care and Protection) Act, 2015. That, it is unclear whether the appellant 2 is
a first time offender or a habitual offender. That, the appellant 2 has been subjected to unfavourable
environment and is entitled to a fresh chance under better surroundings; the prospect of reformation is
hopeful; a person of such a delicate age does not have the same complete knowledge and realization of the
nature and consequences of his act as does an adult, hence, is less culpable.

2.1. SECTION 21 PROHIBITS THE CHILDREN’S COURT FROM SENTENCING LIFE


IMPRISONMENT TO A JUVENILE.
1. It is humbly submitted to the Hon’ble Court that in the instant appeal, the appellant 2 belongs to
the age group of 16-18 years and the case tried against him is undoubtedly serious and heinous
offence and that is why after due assessment, the Board has referred their matter before the
Children's Court to be tried as an adult. Except an embargo, that after holding a trial and recording
their conviction, these delinquent juveniles would not be awarded death sentence or life
imprisonment without a possibility of release. Section 21 of the Act reads: “Order that may not be
passed against a child in conflict with law.- No child in conflict with law shall be sentenced to death
or for life imprisonment without the possibility of release, for any such offence, either under the
provisions of this Act or under the provisions of the Indian Penal Code (45 of 1860) or any other law
for the time being in force”.
2. That, such a sentence is a dichotomy, can be resolved by taking the recourse of “object” of the
legislation and Para 4 of the Statement of Object and reasons, clearly indicates that the enactment of
Juvenile Justice Act, 2015 is arbitrary to be tackling the gravity of offense between the age group of
16-18 years and involved in heinous, like, murder, rape, etc.
3. Treating children between the age group of 16-18 as adults violated the fundamental right to
equality under Article 14 of the Constitution as well as Article 15(3) which allows special laws for
marginalised sections of society, including children.

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4. That, juveniles cannot be sentenced for life, writing that the death penalty is a disproportionate
punishment for the young; immaturity diminishes their culpability, as does their susceptibility to
outside pressures and influences. Lastly, their heightened capacity for reform means that they are
entitled to a separate set of punishments. That, the nation’s “evolving standards of decency” showed
the life imprisonment for juveniles to be cruel and unusual.
2.2. THE UNION OF INDICA IS SIGNATORY TO MULTIPLE INTERNATIONAL
CONVENTIONS FOR CHILD REFORMATION
5. It is humbly submitted that the object clause of the present act states thus: "And whereas, the
Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of
the Child, adopted by the General Assembly of United Nations which has prescribed a set of
standards to be adhered to by all State parties in securing the best interest of child." IV. V. VI.
Moreover, Article 37(a) of the CRC prohibits the imposition of capital punishment and life
imprisonment without possibility of release on offenders below 18 years of age. Thus, it is
submitted before this Hon‟ble Court that Article 37 of CRC specifically states that a child
below the age of eighteen years should not be punished in a cruel or harmful way and
should not be held behind the bars along with adults and the present act duly follows the
same.
6. That, the CRC further obliges State Parties to establish a minimum age below which children
shall be presumed not to have the capacity to infringe the penal law (Article 40(3) (a)).
7. It is humbly submitted before this Hon‟ble Court that Indica is a signatory of Beijing
Rules and Havana Rules which create an obligation upon it not to defeat the scope and
purpose of a treaty.17 Rule 2.2(a)18 defines a juvenile as a child or young person who, under
the respective legal system, may be dealt with for an offence differently than an adult. Rule
4.119 set out below mandates Member States to refrain from fixing a minimum age of criminal
responsibility that is too low, bearing in mind the facts of emotional, mental and intellectual
maturity.
8. That, the Justice Verma Committee had warned that reducing the age of juveniles below 18
would violate various Indian guarantees under international institutions.20 It is urged that the
United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 or
the Beijing Rules, requires a child or a young person, accused of an offence, to be treated
differently from an adult. Similarly, Rule 11(a) of the Havana Rules, 1990 define a juvenile

17
Article 18 of the Vienna Convention on the Law of Treaties.
18
United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules").
19
Ibid.
20
Justice J.S Verma, Justice Leila Seth, Gopal Subramanium, Report of the Committee on Amendments to Criminal Law,
2013 available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
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as every person under the age of 18, and allow national laws to determine a minimum age
below which such person will not be detained. Therefore, it is humbly submitted before this
Hon’ble Court that the present act is in tunes with the International Commitments entered by
India.
9. In the case of Ram Jethmalani v. Union of India21, the SC recognized that the Vienna
Convention codifies many principles of customary international law. The rule of Customary
International Law which are not contrary to the municipal law shall be deemed to have been
incorporated in the domestic law and shall be followed by the courts of law. 22 Hence,
Vienna Convention being a customary law its provision ought to be adhered by the Indian
Courts and it binding because of the principle of pacta sunt servanda. The counsel humbly
submits that the JJ Act is in consonance to the UN Convention on the Rights of the Child
which is a comprehensive and internationally binding agreement on the rights of children. It
was adopted by the United Nations General Assembly in 1989. The definition of child as envisaged
in Article 1 states: "For the purposes of the present Convention, a child means every human being
below the age of eighteen years unless under the law applicable to the child, majority is attained
earlier."

2.3. THE OBJECTIVE OF THE JJ ACT, 2015 IS REFORMATIVE; NOT PUNITIVE.

10. It is humbly submitted that the law of juvenile justice stands on the principles of restorative
justice and any digression from the same would be detrimental to the right of the children and in
contravention with the principle as enunciated under Article 15(3) of the Constitution. It is
respectfully submitted that the impugned Act seeks to punish the child in conflict with law for the
failure of the Society at large in providing the child with adequate care and Protection. Furthermore,
it is submitted that, the main objective of the act is to provide for care, protection,
treatment, development and rehabilitation of the neglected or the delinquent juveniles. 36 So,
the essence of the act is restorative and not retributive, providing for rehabilitation and
integration of children in conflict with law back into the mainstream society.
11. That, The Juvenile Justice System in India is made on the basis of three main assumptions:-
Firstly, young offenders should not be tried in courts , rather they should be corrected in all the best
possible ways. Secondly, they should not be punished by the courts, but they should get a chance to
reform. Thirdly, the trial for child in conflict with law23 should be based on non-penal treatment

21
Ram Jethmalani v. Union of India, (2011) 8 SCC 1.
22
A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
23
Section 2 (13) of the Juvenile Justice ( Care and Protection) Act , 2015
MEMORIAL ON BEHALF OF THE APPELLANT
THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

through the communities based upon the social control agencies for e.g. Observation Homes 24 and
Special Homes.25
2.4. THE STANCE O

12. If a 16-year old commits an offence that attracts a minimum seven year sentence, he will be produced
before the Juvenile Justice Board comprising a magistrate and two social workers who will decide on the
physical and mental capacity of the child to commit the offence as well as his ability to understand the
consequence of the offence and the circumstances in which he committed the offence. This is a very
subjective process which creates scope for an enormous amount of arbitrariness.

13. “Latest research shows that individualized assessments of adolescent mental capacity is not possible.”
Hence, the preliminary assessment by the Juvenile Justice Board providing for procedural arbitrariness
violates Articles 14 and 21 because an accurate assessment of mental capacity for the purpose is just not
possible and will result in subjective and arbitrary transfers into the adult criminal system. This goes against
the very basis of the Constitution. Union government’s budgetary allocation for child welfare dropped from
“an already inadequate 4.52 percent in 2014-15 to a measly share of just over 3 percent in 2015-16.”

14. Representatives of Prochild pointed out that these finances are in no way adequate to create places of
safety for juveniles as envisaged in the Bill. Consequently, juveniles would either be detained in the existing
Special Homes or Borstals or jails. This would only ensure that a child offender turns into a hardened
criminal by spending seven to 20 years in the company of hardened criminals while growing to adulthood

15. Prof. Faizan Mustafa, Vice-Chancellor, NALSAR University of Law, Hyderabad, emphasised that
“putting children with adult criminals is self-destructive and self-defeating. Adolescents in conflict with law
need adult guidance not the company of hardened criminals.”

16. It was argued that in the absence of adequate funding, the proposed reformative services, including the
services of psychologists, psychiatrists and social workers during the stage of preliminary assessment and
rehabilitation inquiry would remain confined on paper.

17. Section 21. Order that may not be passed against a child in conflict with law.
No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of
release, for any such offence, either under the provisions of this Act or under the provisions of the Indian
Penal Code or any other law for the time being in force.

A) If during the inquiry by the Board or by the Children’s Court, the person alleged to be in conflict with
law is found that he is not a child, such person shall not be tried along with a child.

18. It is humbly submitted before this Hon‟ble Court that Indica is not only a signatory to the
Convention of the Rights of the Child but has also ratified the same. Ratification is defined under Article
2 of Vienna Convention , as "Ratification", "acceptance", "approval" and "accession" mean in each
case the international act so named whereby a State establishes on the international plane its consent
to be bound by a treaty. It is humbly submitted before this Hon‟ble Court that treaty provisions may

24
Section 47 of the Juvenile Justice ( Care and Protection) Act , 2015
25
Section 48 of the Juvenile Justice ( Care and Protection) Act , 2015
MEMORIAL ON BEHALF OF THE APPELLANT
THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

form the basis of an international custom in certain circumstances, provided that the provision in
question is capable of such generalization or is “of a fundamentally norm-creating character.26

19. Moreover it is submitted that out of the 472 million children in our country, only 1.2 %
actually committed crimes in 2012 and 2013. The number of children who committed serious and
heinous crimes was minuscule. In 2013, of all the children apprehended for crimes under the Indian
Penal Code, 2.17% were accused of murder and 3.5% were accused of rape. That is 2% of 1.2%.
29 These figures of the NCRB, account for the FIRs registered and not the children who were
actually found guilty. Therefore, it is not justified to treat a juvenile at par with an adult based on
one bad incident.

20. It is humbly submitted before this Hon‟ble Court that the brain of the teenager is not
completely developed and he/ she is incapable of fully understanding the consequences of his
actions or omissions. It is submitted that in 2007, a study conducted at the National Institute of
Mental Health (NIMH), U.S., scanned children between ages 3 and 18 and conducted the Magnetic
Resonance Imaging (MRI) scans and followed the actual physical changes in the adolescent brain,
believes that brain maturation peaks around the age of 25. In a 2005 paper on “Adolescence, Brain
Development and Legal Culpability”, Dr. Giedd was quoted as saying : “Part of the brain that is
helping organisation, planning and strategising is not done being built yet… It’s sort of unfair to expect
[adolescents] to have adult levels of organisational skills or decision-making before their brain is finished
being built”.27 Emotionally, an adolescent “is really both part child and part adult.”28 According to
available neuro-scientific data, the frontal lobe, especially the prefrontal cortex, is among the last
parts of the brain to fully mature. The frontal lobes are responsible for impulse control, in charge
of decision-making, judgment and emotions and therefore crucial when fixing “culpability” in the
case of juvenile delinquency.29 Further, we now know conclusively that teenagers tend to be
impulsive and prone to mood swings because the limbic system which processes emotions is still
developing.30 The finding herein has been affirmed in a research paper titled published by the
Juvenile Justice Centre of the American Bar Association.

3. WHETHER SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF


CHILDREN) ACT, 2015 IS UNCONSTITUTIONAL OR NOT?
All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in the instant
case. First it “Violates the very essence of Juvenile Justice Act”1 . Secondly it also violates various
Fundamental Rights2 . Third, it does not take consideration of other relevant factors like social background
and psychological issues3 . It has been well established by many neuroscientist that in adolescent period,
child faces tremendous physiological, hormonal, emotional and structural change in the human brain, which

26
North Sea Continental Shelf cases, (1969) ICJ 1.
27
PBS Frontline, Inside the Teen Brain. See Interview with Jay Giedd, available on
www.pbs.org/wgbh/pages/frontline/shows/teenbrain/
28
Lewis, Melvin. Child and Adolescent Psychiatry: A comprehensive textbook, Lippincott Williams and Wilkins (2002).
29
Id, at Interview with Deborah Yurgelun-Todd.
30
American Bar Association. Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain
Development and Legal Culpability, available at http://www.americanbar.org/content/dam/aba/publishing/criminal_
justice_section_newsletter/crimjust_juvjus_Adolescence.authcheckdam.pdf
MEMORIAL ON BEHALF OF THE APPELLANT
THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

subjects the child to great vulnerability4 . Fourth, this act can also open the flood-gate of cases by angry
parents who wants to resist their children from getting into love relationship5 .

According to several statutes in operation in or country, a juvenile has been defined in several statutes: §
2(k)40 a “juvenile” or “Child” is a person who has not completed eighteenth year of age. § 2(12)41, “Child”
means a person who has not completed the eighteen years of age.
As provided in the facts of the case and as the problem requires we hereby adhere to the definition provided
by Juvenile Justice (Care and Protection of children) Act, 2015. Since a nation’s future depends upon the
young generation, the children deserves compassion and bestowal of the best care to protect this burgeoning
human resource. A child is born innocent and if nourished with tender, care and attention he or she will
blossom with the facilities physical, mental, moral and spiritual into a person of stature and excellence42.

All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in the instant
case. First it “Violates the very essence of Juvenile Justice Act”43. Secondly it also violates various
Fundamental Rights44. Third, it does not take consideration of other relevant factors like social background
and psychological issues45. It has been well established by many neuroscientist that in adolescent period,
child faces tremendous physiological, hormonal, emotional and structural change in the human brain, which
subjects the child to great vulnerability46. Fourth, this act can also open the flood-gate of cases by angry
parents who wants to resist their children from getting into love relationship47.

The prologue of The New Juvenile Justice (Care and Protection of Children), Act 2015, has introduced some
of the remarkable changes in the existing Juvenile Law. One such major changes is, juvenile of age group of
16-18 years are to be tried like an adult criminal. Also the person who has attained the age of twenty one
while in sentence will be send to the jail for rest of the time span48.

The petitioner humbly submits that in this particular section there has been a classification between two
different classes of a juvenile. Where juvenile is itself a class and further classification into a class cannot be
done and hence there is a violation of the fundamental rights under Article 14 and Article 21 of The
Constitution of Indica49. It is also not satisfying the three tests of Article 1450 defined by the Supreme
Court and that is:- 1. Test of intelligible Differentia. 2. There must be a nexus between the basis of
classification and the object of the act under consideration. 3. Arbitrariness
As these three tests are not satisfying the reasonability of section 15 of Juvenile Justice Act, 2015.

The first test that is the Intelligible Differentia is unreasonable due to the logic and the reasons because on
one hand it replaces the word juvenile with child in conflict with law which is supposedly more humane. But
this very child in conflict with law is meant to be tried for adult offences and is inhumane idea conceived by
the Government. Also there is a flaw with the terms child alleged to be in conflict with law and child found
to be in conflict with the law are not defined clearly and are used interchangeably in the act. Even though
there is an alleged difference between alleged to be and found to be.

It is respectfully submitted that the authorities have acted without following the procedure to unequal
treatment violating of Art 14. The object or the purpose of the Juvenile Justice Act is to provide care,
protection and child friendly approach but child friendly approach suddenly disappears when the child is
between the ages of 16-18 years. Thus the object of Juvenile Justice Act is not being fulfilled as Juveniles
are being treated as an adult criminals where they would be sent to the prison and due to this the Juvenile
would be influenced to be more hardened criminals so the object or purpose of the Act to protect the
juvenile from committing the crime is not fulfilled rather than the government is trying to convert them into
a hardened criminals and not to reform the juveniles so that the juveniles would be accepted into the society.
MEMORIAL ON BEHALF OF THE APPELLANT
THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

There are many international examples such as there is a U.S. study that is established 80% of the juveniles
released from prison go on to commit more serious offences. Hence this condition might be of India due to
this Law which amended51.

The petitioner humbly submits that juveniles commits a tiny portion of crime in India and far less other than
other nations such as United States data52 that although there were 33,000 crimes committed by juveniles in
India in 2012 there has not been a large increase53

Art 14 extends to the prevention of arbitrary and unreasonable action of the state, which are “antithetical” to
the rule of equality. The principle of Indian law have thrown open the gates of Executive action to Judicial
Scrutiny. It is submitted that under the expanded interpretation of Art 14,54 any Administrative Act , even
though it may inverse policy,55 or that it involved an improper use,56 or the statutory power; or that the
power was exercised by an unfair procedure;57 or that the action taken by the State or its instrumental is not
conductive to the public interest,58.

In the case of D.S Nakara v Union of India, 59 a memorandum dated May 25, 1979 the government of India
liberalised the formula for computation of pension in request of employed governed by central civil service
(Pension) Rule said that the liberalisation of the computation of the pension had been made applicable only
to those retiring on or after the date specified and the benefit of liberalisation had been denied to all those
who had retired earlier. Thus Art. 14 strikes at arbitrariness in state action and ensure fairness and equality
of treatment. It is attracted where equals are treated differently without any reasonable basis. The judgement
was held that each and every one will be allowed the pension. The Juvenile Justice Act itself in the section
2(12) says that a juvenile means a person who has not completed the age of 18 age and on the other side the
Juvenile Justice Act 2015 is contradicting its own law while saying that 16-18 years of age should be tried as
an adult criminal.

It is respectfully submitted that there is also a violation of fundamental right under art. 21. There is a
violation of Right of opportunity to be heard and right of fair trial. The Juvenile would be tried as an adult in
the session court rather than Juvenile court. In the instant case of Satya and Shashi as there was a large scale
media coverage and also Mr Ranjan the employer of Satya was an influential person due to which there was
a mere apprehension that there case might be committed to session court, to invoke the writ Judriction of
Hon’ble Supreme Court is not necessary that the fundamental right has been actually infringed but a threat
to some would be sufficient in the instant case the Juvenile Satya and Shashi would not be tried under the
Children Court by which the fair trial of the juvenile is being violated.

The right of opportunity to be heard of Satya and Shashi is also violating because the Juveniles were arrested
by just a mere statement where there was a no Prima Facie evidence and hence by a mere statement they
would be tried in session court. Thus both the juveniles should be given a chance of proving themselves of
not being guilty rather than apprehending them by a mere statement stated by Vani whose age is 16 years as
juvenile also has right to be heard. Hence there is a violation of Art 21 of the constitution.

It is respectfully submitted that in practice, Session Court have been given the additional changes of acting
as a children’s court, however not many special court having child friendly environment has been created. It
is further submitted that the child should have to face the ignominy of being called as “Accused” even
though he may or may not have committed the said offence. Further, the child shall be forced to face fair
trial which will have a negative effect on the psychology of mind. As this law will be highly misused if
teenagers are found for consensual sex then the male would be charged for rape and will be sent in the
prison. As there is an old established principle in law that lex iniusta non est lex that says unjust law is not a
law
MEMORIAL ON BEHALF OF THE APPELLANT
THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

This act can also open the flood-gate of cases by angry parents who wants to resist their children from
getting into love relationship. First of all the POCSO Act states the age of consent is 18 years60 and if any
crime committed by a juvenile under the POCSO Act it will be dealt as per the provision of Juvenile Justice
Act 2000 (Now as per the new amendment act)61. Again, the PCM Act states that the child marriages are
voidable but not void62. In such a situation, many Juvenile who are involved in a love relation can marry
each other and can enter in ‘consensual’ sexual act. In such situation the consented sexual act may attract the
provision of POCSO Act and the Juvenile Justice Act, 2015 and they may be tried as adult offender. In a
hypothetical situation, when both the guy and girl are involved in a consensual sexual relation, then the male
child shall be treated children in conflict with law and the female will be treated as children in need of care
and protection. This situation may arise because in section 3, ‘Penetrative sexual assault’ starts with ‘he’,
and it excludes the women from its periphery. It utters a girl can only be abettor in the penetrative sexual
assault not an active criminal.
Such a harsh law against juveniles can be a weapon in hand of angry parents in child elopement cases. If we
look into the crime report of 2013, we can observe about 1388 cases are reported of rape which is only
4.18% of the total crimes committed by the juveniles between the age group of 16-18 years63 and from
them many cases are relating elopements where the parents come complaining to police that their children
were sexually abused or kidnapped and lodge FIR against the boy.

Under the existing law of a child in conflict with law between the age of sixteen - eighteen years were found
to have committed an offence by Juvenile Justice Board, there was a arrange of rehabilitation supposition
that could be passed by Juvenile Justice Board. These rehabilitation disposition includes admonition
community service imposition of a fine, probation group counselling and an extreme measure of deprivation
of liberty by way of placement of the child in the special home for three years. Also there has been no such
alternative remedy which has been proposed like shelter homes, observation homes and rehabilitation
homes. In the landmark case Sheela Barse and Anrs. v. Union of India64 the judgement delivered in the
Supreme Court by the bench Bhagwati J. in which it was emphasised that a central act is needed for ensuring
social economic and psychological rehabilitation of the children who are either accused or are abandoned or
destitute or lost. If further stressed, then need not only of having a legislation but to enforce it with all
earnestness and plea like financial constraints would not serve our purpose in binding up of powerful human
resource who are to taken reins of nation in forward march.

This act has basically been just saying about the juveniles who are to be tried as an adult criminals and it is
sadly to be said that a majority of children in conflict with law comes from illiterate family, poor homes or
even homeless. 77.5% arrested children in 2013 comes fromfamilies with a monthly household of income of
less than Rupees four thousand two hundred only. That’s how these poor the children’s are 87% have not
received Higher Secondary Education65. These are the ones that the government are trying to punish instead
of providing them with the education or give them an opportunity to integrate into our society66.

As Delhi alone has around eighty thousand street children and when children are living on the streets or in
pitiable condition they can easily come under the influence of criminal minded adults hence it is better to
educate them rather than throwing them to a jail.
3.1 That the mental faculty of every child cannot be considered equally.

The petitioner humbly submits that the impugned Act seeks to repeal and replace the existing Juvenile
Justice Act, 2002 with a draconian and unconstitutional amendment which instead of providing care and
protection to the children deems them as an adult in cases where the alleged commission of crime by them is

MEMORIAL ON BEHALF OF THE APPELLANT


THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

heinous in nature. It is respectfully submitted that the impugned Act seeks to punish the child in conflict
with the law for the failure of the society at large in providing the child with adequate care and protection.

The petitioner herby completely submits that the brain of the teenager is not completely developed and
he/she is incapable of fully understanding the consequences of his act or omission. It is to be submitted that
in 2007 a study conducted at Researchers at Harvard Medical School, the National Institute of Mental
Health (NIHM), US scanned the brains of nearby thousand healthy children between ages three to eighteen
years67. Child and Adolescent psychiatrist Jay Geidd, who conducted the Magnetic Resonance Imaging
(MRI) scans and followed the actual physical changes in the brain, believes that brain maturation peaks
around the age of twenty-five years68.

In 2005, Dr. Geidd quoted that during adolescence the “part of the brain that is helping organization,
planning and strategizing is not done being built yet…. It’s sort of unfair to expect [adolescents] to have
adult levels of organizational skills or decision making before their brain is finished being built69”. Deborah
Yurgelun-Todd, PhD Brain Imaging Laboratory, McClean Hospital Harvard University Medical School
quoted that “Just because they're physically mature, they may not appreciate the consequences or weigh
information the same way as adults do. So, [although] somebody looks physically mature, their brain may in
fact not be mature70.”

Emotionally, an adolescent “is really both part child and part adult,” explains Melvin Lewis, an expert in
child psychiatry and paediatrics at Yale University School of Medicine. Normal development at this time
includes self-searching, during which the adolescent tries to grow out of his or her childlike self. This
change is complicated by the conflict between an adolescent’s new sense of adult identity and remaining
juvenile insecurities71

As in the case Lakshmi Kant Pandey v. Union of India and others, The Apex Court in its first Judgment in
1984 itself on the child jurisprudence said that:

1. The children by reason of their physical and mental immaturity needs special safeguards and care,
including the appropriate legal protection before as well as after birth and that the mankind owes to
the children the best it has to give and formulate some principles mainly that “children have a right to
love and be loved, grow up in an atmosphere of love and affection with moral and material security
which is possible only if they are brought up in family care”.
2. It is universally accepted that proper development of a child-emotionally, physically, intellectually
and morally-can be best ensured with the family, or where it is not possible, then in family
surroundings and in a family atmosphere. The responsibility for providing care and protection to
children, including those who are orphaned, abandoned, neglected and abused rests primarily with
the family, the community and the society at large’.
Hence it has to be noted that a child should be treated in a good atmosphere and proper care and love should
be given because they might be physically mature but mentally they might need support of the others.
Similarly, in the case of Satya and Shashi, Satya was a poor boy who was a dropout due to financial
conditions and has struggled a lot in his life where he has never got love and affection from his family and
neither from Vansh and Vani who were the children of his master Mr. Rajan where they used to ill-treat him
and misbehave with him and during his bad times Shashi was the only witness where Vansh and Vani
abused him as the product was not available in the market.
As in the Indian Context: Dr. Rajat Mitra, clinical psychologist and director of Swanchetan, a non-
governmental organisation based in New Delhi providing support to juvenile delinquents among others -
says that “complete rehabilitation is very rare”. “It is almost next to nil. Rehabilitation is a well-defined
MEMORIAL ON BEHALF OF THE APPELLANT
THE 5TH NATIONAL MOOT COURT, LEGAL ELOCUTION & DEBATE COMPETITION, 2020

scientific process. The idea is to help the convict gain back his original psychological, physical and social
capacity which is impaired as a result of the crime committed,” he says.72

Juveniles in conflict with the law are more capable of change given the fact that their brains are still
learning. Honest efforts made towards rehabilitation — including visits by a mental health professional
three-four times a month — will have a significant positive impact on them. Unfortunately, there is no
psychiatric screening in Indian prisons. No mental health professional has met the juvenile convicted in the
gang-rape case yet; neither when he was in a reform home for three years nor after release. “That’s no way
to look at rehabilitation,” says Dr. Mitra73.

The petitioner humbly submits that there are many circumstances under the Indian law a person under the
age is not allowed to vote, is considered minor for entering into a contract, a girl of age less than eighteen
years cannot give consent for sexual relationships, a child of age less than eighteen years cannot marry. Yet
by the amended act that child can be tried as an adult after a preliminary assessment, the child shall be
presumed to have the knowledge and understanding of the alleged crime he has committed. The petitioner
submits that such a scenario would be travesty of justice. It is submitted that the idea behind treating a
certain age group as children is to protect the most vulnerable section of the society. Where the government
analysed in such matters that they are not mature enough to deal with these things. Thus it is humbly
submitted that section 15 of juvenile Justice Act, 2015 has been violated.

MEMORIAL ON BEHALF OF THE APPELLANT