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TEAM CODE: A35

IN THE HONBLE SUPREME COURT OF INDIA AT NEW DELHI, INDIA

SLP NO.. OF 2016

IN THE MATTER OF:

SHYAMA
PETITIONERS

SHEKHAR

V.

RESPONDENT

UNION OF INDIANA

CLUBBED WITH
WP(C) NO. OF 2015
PETITIONER

AIM FOUNDATION

V.

RESPONDENT

UNION OF INDIANA

APPEAL BY SPECIAL LEAVE PETITION


UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS
S. NO.

PARTICULARS

PAGE NO.

1.

LIST OF ABBREVIATIONS

ii

2.

INDEX OF AUTHORITIES

iii

3.

STATEMENT OF JURISDICTION

viii

4.

STATEMENT OF FACTS

ix

5.

ISSUES RAISED

xi

6.

SUMMARY OF ARGUMENTS

xii

7.

ARGUMENTS ADVANCED
I.

WHETHER

THE JUVENILE JUSTICE

1-20
(CARE AND PROTECTION OF

CHILDREN) ACT, 2014 IS CONSTITUTIONAL OR NOT?


A. That the act was the need of the hour.
B. That the act is consistent with article 14 and article 21.
C. That the act is consistent with international law.
D. That the other countries also have similar laws.
E. That the act is a comprehensive legislation.
II.

WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE


CHARGES LEVELED AGAINST HIM OR NOT?
A. That The Preliminary Assessment Was Conducted As Per The
New Act
B. That There Is No Need For Conducting The Test
C. That His Guilt Is Established Beyond Reasonable Doubt

III.

WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE


CHARGES LEVELED AGAINST HIM OR NOT?
A. That Ingredients As To The Offences Are Satisfied
B. That There Is Sufficient Evidence To Prove Shekhars Guilt
Beyond Reasonable Doubt

8.

PRAYER

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LIST OF ABBREVIATIONS
S. NO.

ABBREVIATION

FULL FORM

1.

&

And

2.

Section

3.

Paragraph

4.

AIR

All India Reporter

5.

Anr.

Another

6.

CrLJ

Criminal Law Journal

7.

CWC

Child Welfare Committee

8.

ed.

Edition

9.

HC

High Court

10.

IPC

Indiana Penal Code

11.

JJ

Juvenile Justice

12.

JJB

Juvenile Justice Board

13.

MLJ

Madras Law Journal

14.

NCRB

National Crime Records Bureau

15.

NCT

National Capital Territory

16.

NGO

Non Governmental Organisation

17.

NHRC

National Human Rights Commission

18.

Ors.

Others

19.

PIL

Public Interest Litigation

20.

Prof.

Professor

21.

Pvt.

Private

22.

r/w

Read with

23.

SC

Supreme Court

24.

SCALE

Supreme Court Almanac

25.

SCC

Supreme Court Cases

26.

SCR

Supreme Court Reporter

27.

u/s

Under section

28.

UNCRC

United Nations Convention On Rights Of Child

29.

US

United States

30.

v.

Versus

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INDEX OF AUTHORITIES
COMMENTARIES REFERRED:
BOOKS ON CONSTITUTIONAL LAW:
1. H.M. SEERVAI, 2 CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law Publishing
Co. Pvt. Ltd., New Delhi 2004).
2. DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW

OF

INDIA (Universal Law

Publishing Pvt. Ltd., New Delhi 2008).


BOOKS ON INDIAN EVIDENCE ACT:
1. RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE (23rd ed. Lexis Nexis, Gurgaon,
2015)
2. BATUK LAL, THE LAW OF EVIDENCE (7th ed. Orient Publishing Company, New Delhi
2015)
3. JUSTICE C.K. THAKKER, LAW OF EVIDENCE, (2nd ed. Whytes & Co., New Delhi 2015)
BOOKS ON INDIAN PENAL CODE:
1. S.K. SARVARIA, R.A. NELSONS INDIAN PENAL CODE (9th ed. Lexis Nexis
Butterworths Gurgaon 2002).
2. M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency, Faridabad
2005).
3. KD GAUR, CRIMINAL LAW CASES

AND

MATERIALS (7th ed. Lexis Nexis, Gurgaon

2013)
4. DR. HARI SINGH GOUR, 1 INDIAN PENAL CODE (14th ed. Law Publishers Pvt. Ltd.,
Allahabad 2013)
5. DR. K.I. VIBHUTE, P.S.A. PILLAIS CRIMINAL LAW (12th ed. Lexis Nexis, Gurgaon
2015)

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BOOKS ON JUVENILE JUSTICE:


1. R.N. CHOUDHRY, LAW RELATING

TO

JUVENILE JUSTICE IN INDIA (1st ed. Orient

Publishing Company, New Delhi 2005)


2. SUMAN NALWA & HARDEV SINGH KOHLI, COMMENTARY

ON THE JUVENILE JUSTICE

ACT (3rd ed. Universal Law Publishing Pvt. Ltd., New Delhi 2009)
BOOKS ON MEDICAL JURISPRUDENCE AND TOXICOLOGY:
1. PROF. T.D. DOGRA , LYONS MEDICAL JURISPRUDENCE

AND

TOXICOLOGY (11th ed.

Delhi Law House, Delhi 2005)


BOOKS ON PRINCIPLES OF STATUTORY INTERPRETATION:
1. JUSTICE G P SINGH, PRINCIPLES

OF

STATUTORY INTERPRETATION (12th ed. Lexis

Nexis Butterworths Wadhwa, Nagpur 2010)


2. AMITA DHANDA, N.S. BINDRAS, INTERPRETATION

OF

STATUTES (11th ed. Lexis

Nexis, Gurgaon 2014)


DICTIONARIES REFERRED:
1. BRYAN A. GARNER, BLACKS LAW DICTIONARY (8th ed. 2001).
2. OXFORD ENGLISH DICTIONARY (2nd ed. 2009).
INTERNATIONAL COVENANTS REFERRED:
1. UNITED NATIONS STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE
JUSTICE, 1985 (THE BEIJING RULES).
2. UNITED NATIONS CONVENTION ON RIGHTS OF CHILD, 1992.
3. UNITED NATIONS RULES

FOR THE

PROTECTION

OF

JUVENILES DEPRIVED

OF THEIR

LIBERTY (1990).
JOURNAL REFERRED:
1. CRIMINAL LAW JOURNAL, AUGUST 2015.

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STATUTES REFERRED:
1. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015.
2. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000.
3. INDIANA PENAL CODE, 1860.
4. INDIANA EVIDENCE ACT, 1872.
5. THE CONSTITUTION OF INDIANA, 1950.
6. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) RULES, 2007.
WEBSITES REFERRED:
1. www.judis.nic.in
2. ncrb.nic.in
3. www.scconline.com
WEB LINKS REFERRED:
1. http://www.prsindia.org/uploads/media/Juvenile%20Justice/SC%20report%20Juvenile
%20justice.pdf
2. http://indianexpress.com/article/india/india-news-india/parliament-passes-juvelinejustice-bill-16-and-above-to-be-tried-as-adults/#sthash.fkpmBvOo.dpuf
3. http://www.eolss.net/eolsssamplechapters/c14/e1-44-01/E1-44-01-TXT.aspx
4. http://www.thehindu.com/opinion/op-ed/towards-a-comprehensive-juvenile-justicelaw/article6221909.ece
5. http://data.worldbank.org/indicator/SE.PRM.AGES?page=2
6. http://www.prsindia.org/uploads/media/Juvenile%20Justice/Legislative%20Brief%20Ju
venile%20Justice%20Bill.pdf
7. http://mhrd.gov.in/sites/upload_files/mhrd/files/statistics/SISH201112.pdf
8. http://www.palmbeachschools.org/multicultural/documents/TranscriptGuide.pdf
9. http://www.telegraphindia.com/1130202/jsp/opinion/story_16509423.jsp#.VtnaOPl961
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CASES REFERRED:
S.NO.

CASE NAME

CITATION

1.

Abdul Sattar v Crown

AIR 1949 Lah 51.

2.

Aftab

Ahamd

Anasari

v.

State

of 2010 2 SCC 583

PAGE NO.
10
18

Uttaranchal,
3.

Atlas Cycle Industries Ltd. v. State Of AIR 1979 SC 1149.

13

Haryana,
4.

B.A. Umesh v. State of Karnataka

(2011) 3 SCC 85.

14

5.

Bhim Singh v. State of Uttrakhand

(2015) 4 SCC 739.

19

6.

Bomkesh

Bhattacharya

v.

Lakshmi 1978 CrLJ 848.

17

Narayana Datta,
7.

Gaurav Kumar v. State of Haryana

(2015) 4 SCALE 531.

8.

Hanumant v. State of M.P

AIR 1952 SC 343.

18

9.

Hari Vishnu Kamath v. Ahmad Ishaque,

AIR 1955 SC 233.

12

10. Hiralal Mallick v State of Bihar

1977 CrLJ 1921 (SC)

10

11. Hiralal v State of Bihar

1977 CrLJ 1921 (SC)

11

12. M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260.

13. Mathai v. State of Kerala,

(2005) CrLJ 898 (SC).

15

14. Mussammat Aimona

1864 1 W.R. (Cr.) 43.

11

15. NLSA v. Union of India and Others

(2014) 1 SCC 1

16. Padaala Veera Reddy v. State Of A.P,

AIR 1990 SC 79.

18

17. PT Rajan v. TPM Sahir

AIR 2003 SC 4603

12

18. Rajesh Rai v. State of Sikkim

2002 Cr.L.J. 1385

18

19. Ram Kripal S/o Shyam Lal Charmakar v. 2007 II CrLJ 2302 (SC)

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14

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State of Madhya Pradesh


20. Ranganath Sharma v. Satendra Sharma

(2009) 1 SCC (Cr.) 415

17

21. Rewa Ram v. State of Madhya Pradesh,.

(1978) Cr.L.J. 858

18

22. Sainik Motors v. State of Rajasthan,

AIR 1961 SC 1480

12

23. Sarvesh Narain Shukla v. Daroga Singh (2007) 13 SCC 360.

20

and Ors.,
24. Shankarlal v. State of Rajasthan,

(2004) 10 SCC 632.

20

25. Sharad Birdichand Sarda v. State of AIR 1984 SC 1682.

18

Maharashtra
26. Shri Ram Krishna Dalmia v. Shri Justice AIR 1958 SC 538.

S. R. Tendolkar & Others


27. State of Maharashtra v. G. Ambaji Adsul

(2011) 7 SCC 437

14

28. State of Mysore v. Venappasetty

1973 CrLJ 1568.

17

29. State of U.P. v. Babu Ram,

AIR 1961 SC 751.

12

Thr. (2014) 8 SCC 390

30. Subramanian

Swamy

v.

Raju

Member Juvenile Justice Board and Anr.,


31. Ulla Mahapatra v The King

AIR 1950 Ori 261.

10

32. Virsa Singh v. State of Punjab

AIR 1958 SC 465.

16

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STATEMENT OF JURISDICTION
Petitioner No. 1 and 2 approaches the Honble Supreme Court of India under Article 136 1 of
the Constitution of India which gives discretionary power to the Supreme Court of India to
hear any matter on appeal against the order passed by any court or tribunal in the territory of
India where justice and equity so demands.
Whereas Petitioner No. 3 approaches this Honble Supreme Court by filing a Public Interest
Litigation (PIL) under Article 322 of the Constitution of Indiana which gives the power to the
Supreme Court any petition in the form of a writ.
The respondent accepts the maintainability of the case.

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces.
2
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution

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STATEMENT OF FACTS

I
-------------------------------BACKDROP OF THE CASE------------------------------Shyama a poor slum-dweller, studied in a government school, dropped after 6th standard due
to poor economic conditions, ever since he is a domestic-servant of Mr. R. Batras family.
Vanita & Ravi adolescent children of Mr. R. Batra treated Shyama in a condescending
manner, affronted him over trivial matters in public. One day while playing a football hit
Vanitas head due to which Ravi started verbally abusing Shekhar, who lived in the
neighbourhood. Their fight was resolved by Mr. Mehta. Shekhar shared animosity with Ravi
and Vanita since childhood.
II
-------------------THE GRUESOME MURDER OF RAVI AND VANITA---------------On 7th March, 2015, Shyama took leave for three days, knowing about the exhibition that
Mr. Batras family was planning to visit. Next day on the fateful night of 8th March, 2015
around 8:30 p.m. Vanita was taken by four persons & Ravi sensed his sisters absence. When
Ravi reached the basement, he saw persons outraging her modesty and while trying to save
her he received a blow by a rod on his head & several blows over his abdomen. Vanitas
mouth was forcefully shut and she was strangulated to death. Around 9:30 p.m., the guard
discovered their bodies in the basement, reported FIR and sent bodies for medical
examination. On 10th March, 2015 I.O. arrested Shekhar on the statement of Ram Manohar
and further arrested Shyama, Raju, and Ranveer. Medical Report revealed that Ravi died due
to internal bleeding and Vanita died due to strangulation.

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III
---------------------DECISION OF THE JUVENILE JUSTICE BOARD-----------------JJB found Shekhar & Shyama well aware of the circumstances & consequences of their acts
and their case was committed to the Session Court while Raju & Ranveer were tried by the
Juvenile Board u/s 304, 326, 354 r/w 34 and their guilt was corroborated by circumstantial
evidence, medical evidence and were sent to special home for a period of one year.
IV
----------VERDICT GIVEN BY THE SESSION COURT AND THE HIGH COURT---------On 28th July, 2015, Shyama was convicted u/s 304, 326, 354 r/w 34 and was sentenced to 3
years imprisonment by Court of Session and Shekhars case was remanded back to JJB and
he was sent to a special home for a maximum period of 3 years. Both preferred appeal in High
Court, which convicted Shyama and Shekhar u/s 302 instead of 304 and enhanced Shyamas
sentence to life imprisonment and Shekhars term of imprisonment was raised to 10 years.
V
-----------------MATTER REACHES THE SUPREME COURT---------------

Shyama & Shekhar approached the Apex Court of Indiana by way of Special Leave Petition.
Shyama challenged the proceeding of the Session Court as he was minor and also raised
question regarding the justification of the order passed by the Session Court & the High
Court, rejecting the conduct of the Bone Test for determining his age. Shekhar challenged the
judgment & order passed by the Juvenile Board, Session Court & the High Court which was
passed solely on the basis of his presence in the exhibition. A PIL is also filed by AIM
Foundation, an NGO challenging the constitutional validity of the Juvenile Justice (Care &
Protection of Children Act), 2014.

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ISSUES RAISED
ISSUE I
WHETHER

THE

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2014 IS

CONSTITUTIONAL OR NOT?
ISSUE II
WHETHER THE HIGH COURT AND SESSIONS COURT WERE JUSTIFIED IN REJECTING THE TEST
FOR DETERMINATION OF SHYAMAS AGE OR NOT?
ISSUE III
WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE CHARGES LEVELED AGAINST HIM
OR NOT?

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SUMMARY OF ARGUMENTS

I.

WHETHER

THE

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,

2014 IS CONSTITUTIONAL OR NOT?


It is submitted that the new Juvenile Justice (Care and Protection of Children) Act,
2014 is Constitutional. The new act has been brought as it was the need of the hour and
the will of the people. It was brought into force after the clamour that was raised after a
series of heinous crimes that were committed by the juveniles. This act was preceded by a
consultative process.
The act is not violative of the Article 14 and Article 21 of the Constitution as it permits
reasonable classification of the juveniles belonging to the age-group of 16-18 years in
case of commission of heinous offences. The procedure followed during the two stages of
assessment is appropriate and stands the test under the Constitution of Indiana.
The Act is in consonance with various International Covenants and Rules. India is not an
isolated country to make such stringent laws to curb the menace of crimes in the society.
The new act is not only a beneficial piece of legislation but also a comprehensive
legislation when compared to the JJ act, 2000.
All in all, this act strikes a balance between the interests of the society and the rights of
the child. When tested on the touchstone of the Constitution this Act is valid.
II.

WHETHER THE HIGH COURT AND SESSIONS COURT WERE JUSTIFIED IN


REJECTING THE TEST FOR DETERMINATION OF SHYAMAS AGE OR NOT?

The High Court and the Court of session were justified in rejecting the test for
determining Shayamas age on the ground that it is certain that in all probabilities was
above the age of sixteen years. Even if the test would have been conducted it would not
have given any different results.
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As per the preliminary assessment of the JJB Shyama is found capable of committing the
offence and knowing the consequences of his act. The diabolic act of Shyama satisfy the
ingredients of 302 of IPC, 1860. Hence the order given by the High Court must be
sustained and there was no need of conducting the Ossification Test as it would be a futile
effort.
III.

WHETHER SHEKHARS CONVICTION BY THE JUVENILE BOARD, SESSION COURT


AND THE HIGH COURT WAS VALID OR NOT?

It is submitted that Shekhars guilt has been proved beyond reasonable doubt on the basis
of circumstantial evidence, medical evidence and corroborated by the statement of Ram
Manohar. The prosecution has established the chain of circumstantial evidence and it
points towards only one conclusion that Shekhar is guilty and rules out any other
possibility.
Shekhars culpability is clearly established by his prior animosity with Ravi and Vanita
and his subsequent act of grabbing an opportunity to talk to Shyama.
His presence at the crime scene where he was seen sneaking away completes the entire
chain of circumstantial evidence. Both Shyama and Shekhar shared hatred for Ravi and
Vanita and acted under common consensus. Hence, the decision of the High Court must
be affirmed and Shekhar must be held guilty for his brutal act.

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ARGUMENTS ADVANCED
MOST RESPECTFULLY SHOWETH:
I.

WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,


2014 IS CONSTITUTIONAL OR NOT?

1. The presumption of constitutionality is to be raised since in passing the law, the majority
of the elected representatives of the people believe that the restrictions imposed by the
law were reasonable. 3
2. It is submitted that the JJ Act, 2014 is constitutional and it can be proved on the following
grounds:
A. THAT THE ACT WAS THE NEED OF THE HOUR
3. The parliament has enacted the new act because there was a dire need.
A.1. THAT THE ACT WAS PASSED TO CURB MENACE IN THE SOCIETY
4. The POCSO Act, 2011 came into place when there was a sudden surge in the offences
relating to Sexual activities, the guidelines were laid down on sexual offences at
workplace after the diabolic incident of Vishaka v. State of Rajasthan4 and Criminal
Amendment Act 2013 was also made as a consequence of the Nirbhaya Case. History is
replete with examples where Experience has acted as the best teacher and has demanded
Change in the law that can never be static. As it is rightly said law is an instrument of
Social change.
5. The highest Court of the land, in an order passed on 6th April, 2015 in Gaurav Kumar v.
State of Haryana5 in recognition of the fact that the rate of crime in which the juveniles
and the nature of crime in which they are involved have increased, has explicitly
remarked that:
3

H.M. SEERVAI, 2 CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law Publishing Co. Pvt. Ltd., New Delhi
2004).
4
AIR 1997 SC 3011.
5
(2015) 4 SCALE 531.

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Time has come to think of an effective law to deal with the situation, we would request
the learned Attorney General to bring it to the notice of the concerned authorities so that
the relevant provisions under the Act can be re-looked, re-scrutinized and re-visited, at
least in respect of offences which are heinous in nature.
6. There was a public outcry demanding more stringent punishment because of the
increasing juveniles who were found in conflict with Law. It was also pointed out that the
Delhi Gang rape case in December 2012, the Shakti Mill Rape case in Mumbai July 2013
and the Guwahati rape case in September 2013 involving child offenders triggered a
debate across the Country about the inadequacy of punishment who committed heinous
crimes.6
7. This data provides for cases of juveniles in conflict with law reported under various SLL
(Special and Local laws) crimes have increased by 21.8% in 2014 as compared to 2013,
as 4,136 cases of juveniles in conflict with law under SLL reported in 2013 which
increased to 5,039 cases in 2014.7
A.2 THAT A CONSULTATIVE PROCESS PRECEDED THE ACT
8. A standing Committee on HRD mentions that a comprehensive consultation process was
adopted before the passing of the Act A review committee was also constituted under the
Ministry of Women and Child Development.

The Women and Child Development

Ministry has posted on its website a proposed draft of The Juvenile Justice (Care and
Protection of Children) Bill, 2014, on 18th June, 2014 for fifteen days suggesting broad
amendments.

Justice Raghavendra Kumar, The case for reduction of the age of juvenility,Criminal Law Journal, August,
2015.
7
Chapter 10 Juvenile in conflict with law See at http://ncrb.nic.in/ (Last visited 3 march 2016)
8
See Two Hundred Sixty Fourth Report The Juvenile Justice (Care and Protection of Children)
Department- Related Parliamentary Standing Committee Report On Human Resource Development
http://www.prsindia.org/uploads/media/Juvenile%20Justice/SC%20report-%20Juvenile%20justice.pdf
(Last
assessed on 3 March 2016 at 2:28 a.m.)

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B. THAT THE ACT IS CONSISTENT WITH ARTICLE 14 AND ARTICLE 21


9. It is submitted that the classification of age is reasonable and the procedure laid down in
the new act for the trial of children in conflict with law is not arbitrary. Constitutionality
of the legislative and executive acts should be tested on the anvil of constitutionalism and
the ingrained principles.9
B.1. THAT THE CLASSIFICATION MADE IS REASONABLE
10. The most distinguishing provision of the JJ Act, 2014 is the classification that has been
created as provided in Section 14(5)(f),of the Act which categorizes children in the agegroup of 16-18 who have been alleged for the commission of a heinous offence, shall
undergo a preliminary assessment with respect to their physical and mental capacity.
11. This classification stands the test of Reasonable Classification as laid down in the case of
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others,10 by a Constitution
Bench that, in order, to pass the test of permissible classification two conditions must be
fulfilled, filled namely,
(i)

that the classification must be founded on an intelligible differentia,

(ii)

that that differentia must have a rational relation to the object sought to be
achieved by the statute in question.

12. Intelligible Differentia: It is submitted that categorizing all Juveniles in only one
category, irrespective of the commission of offence they had committed, resulted in overclassification. Unequals were treated equally because there was no distinction between
juveniles who committed petty offences and who committed heinous offences
13. This principle has been recently reiterated by the Supreme Court in M.G. Badappanavar
v. State of Karnataka,11 by stating, Equality is a basic feature of the Constitution of India

DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing Pvt. Ltd., New Delhi
2008).
10
AIR 1958 SC 538.
11
AIR 2001 SC 260.

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and any treatment of equals unequally or unequals as equals will be violation of basic
structure of the Constitution of India.
14. The data by NCRB supports the differentiation. 872 juveniles were apprehended in the
age-group of below 12 years, 11,220 juveniles were apprehended in the age-group of 1216 years during 2014 whereas majority of juveniles apprehended (36,138) were under the
age-group of 16-18 years. The percentage shares of Juveniles apprehended under these
age-groups were 1.8%, 23.3% and 74.9% respectively. 12
B.2. THAT THE PROCEDURE ESTABLISHED TO TRY THE CHILD AS AN ADULT IS
APPROPRIATE
15. It is submitted that the procedure for trial of a child stands the scrutiny of Article 21.
B.2.1 Composition of the JJ Board
16. Section 4(2) lays down the composition of a JJ board which shall consist of Judicial
magistrate, a woman, two social workers with a minimum experience of 7 years and then
the board is empowered to take any decision relating to the interest of the child and they
may for this purpose take the help of psychologist or any other expert.
B.2.2 Child friendly atmosphere along with Reformation and Rehabilitation
17. The provisions which ensures child friendly atmosphere and provide an opportunity for
the child to reform and rehabilitate are provided in 18, 19 and 20, Along with the
preamble of the act.13
18. As per the ministry of women and Child Development, this unique instrument of a twostage assessment brings about a balance that is sensitive to the rights of the child,
protective of his legitimate interests yet conscious of the need to deter crimes.14
19. Nobel Peace Laureate Kailash Satyarthi hailed the passing of the Act as a major
12

The details have been presented in Table 10.4 at http://ncrb.nic.in/


.by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of
children and for their rehabilitation
14
Justice Raghavendra Kumar, The case for reduction of the age of juvenility,Criminal Law Journal, August,
2015.
13

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legislative reform measure. 15 Whether its a crime by a child or on a child, the focus has
to be on reform and restitution and not just deterrence. We welcome that no child below
the age of 18 will go to jail and instead be sent to a special place of safety till the age of
21, he said. He added that the protection framework provided under this law is extremely
robust.
C. THAT THE ACT IS CONSISTENT WITH INTERNATIONAL LAW
20. It is submitted that the new act is supported by UNCRC16 and the Beijing Rules, 1985.
C.1. THE ACT DOES NOT VIOLATE ARTICLE 40 OF UNCRC
21. Article 40(1) deal with the treatment and promotion of the child's sense of dignity vis-vis re-integration in the society. If the parliament has made any legislation which is in
conflict with the international law, then Indian Courts are bound to give effect to the
Indian Law, rather than the international law. However, in the absence of a contrary
legislation, municipal courts in India would respect the rules of international law.17 Austin
used his definition of law to deny the legal character of international law, which he saw
simply as positive morality. He did not deny the existence of international rules however
according to Austin such rules were not commanded fundamentally for Austin, states,
which are themselves sovereign cannot be subjected to the Law.18
22. Chapter II General Principles of Care and Protection of Children is the most
noteworthy characteristic of the Act, providing for Care, Protection, Rehabilitation and
Justice for Children.19 It incorporates internationally accepted principles of presumption
of innocence, dignity and worth, family responsibility, non-stigmatizing semantics,

15

See at: http://indianexpress.com/article/india/india-news-india/parliament-passes-juveline-justice-bill-16-andabove-to-be-tried-as-adults/#sthash.fkpmBvOo.dpuf (last accessed on 2 March 2016 at 1:05 p.m.)


16
United Nation Convention on the Rights of the Child. India ratified UNCRC on 11 December, 1992.
17
National Legal Services Authority v. Union of India and Others, (2014) 1 SCC 1.
18
Mechanisms To Create And Support
Treaties Conventions And Other Responses See at:
http://www.eolss.net/eolsssamplechapters/c14/e1-44-01/E1-44-01-TXT.aspx (last accessed on 4 March, 2016)
19
Towards a comprehensive Juvenile Justice law The Hindu 14 th July 2014.

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privacy and confidentiality, repatriation and restoration, equality and non-discrimination,


and diversion and natural justice, among others.
C.2. THAT THE ACT DOES NOT VIOLATE ANY OTHER ARTICLE OF UNCRC
23. The best interests of the child as required under Article 3 of UNCRC have been taken care
of by incorporating 19(1), 19(3) and 20 in the JJ Act, 2014. Moreover, even if he is
tried as an adult, he can be sentenced to a maximum of life imprisonment with possibility
of release as mentioned in 21 of the new act which is in consonance with UNCRC. The
principles relating to juvenile justice system have been incorporated in 3 (Chapter II) of
the new act. Thus, the new act is being supported by UNCRC.
C.3. THAT THE ACT IS SUPPORTED BY BEIJING RULES, 1985
24. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice,
1985 (the Beijing Rules),take into account penological objectives in addition to
rehabilitation of the offender. In Rule 17.1, the guiding principles of adjudicating matters
involving juveniles are enlisted: (a) The reaction shall always be proportional to not only
the circumstances and the gravity of the offence, but also to the circumstances and needs
of the juvenile as well as to the needs of society20
D. THAT THE OTHER COUNTRIES ALSO HAVE SIMILAR LAWS
25. There have been laws in other countries where because of the societal changes similar
laws have been adopted. In Canada, Referring to Section 13 of the Criminal Code of
Canada, a youth between age of 14 to 17 years may be tried and sentenced as an adult in
certain situations.
26. In USA nearly all States permit persons less than 18 years to be tried as adults. For
example, in California, the majority age is 18 years, but persons older than 14 years may
be tried as adults if they commit serious crimes (rape, robbery, murder etc.). The state of
20

Subramanian Swamy v. Raju Thr. Member Juvenile Justice Board and Anr., (2014) 8 SCC 390.

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New York pegs the age of juvenility at 16 years, and permits the prosecution of persons
aged between 13-16 years as adults in case of serious crimes.
27. A unique feature of Blended Sentencing in USA: A juvenile court may sentence a
convicted juvenile offender to both a juvenile sentence and an adult sentence. The adult
sentence is suspended on the condition that the juvenile offender successfully completes
the term of the juvenile disposition and refrains from committing any new offence.
28. In Nepal, The minimum age of criminal responsibility is 10 years. A child is a person
below 16 years. Youth between 16-18 years are charged and tried as adults.
29. India will not be one isolated case in the comity of nations, for having classified the
offences committed by juveniles as heinous and non-heinous and accordingly determining
the age of juvenility in matters of heinous offences in a differential way for children
between the age-group of 16-18 years. The significant factor is that, the trial of Juvenile
for violent crimes can take place only after the assessment by the JJ board and in that
death sentence and life-imprisonment cannot be awarded to the juvenile.21
E. THAT THE ACT IS A COMPREHENSIVE LEGISLATION
30. The new JJ Act, 2014 is a comprehensive legislation when compared with the Act of
2000. The Act provides for general principles of care and protection of children,
procedures in case of children in need of care and protection in conflict with law,
rehabilitation and social re-integration measures for such children and offences
committed against children. One example is, the word juvenile has been replaced with
the word child and the expression juvenile in conflict with the law has been changed
to child in conflict with law.
31. The new act has brought into its ambit the following beneficial provisions:
Child Welfare Committee: Disposing of cases for children in need of care and
21

Supra 12

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protection; Frequency of meetings not specified. In the new act; Committee to meet at
least 20 days in a month.
Adoption: No provision for inter-country adoption in the Act; the Guidelines
Governing the Adoption of Children, 2011 provide for inter-country adoption. In the
new act, Inter-country adoption allowed if adoption cannot take place within the
country, within 30 days of child being declared legally free for adoption.
Foster care: Temporary placement of a child to be given for adoption, with a family
for a short/extended period of time; biological family may be allowed to visit. In the
new act, it adds new provision for monthly checks on foster family by the CWC.
After-care: Monetary and continued support for children after they leave special or
children home for a period of three years or till 21 years of age. In the new act, Onetime financial support to children leaving child care institutions after completing 18
years of age is given.22

II.

WHETHER THE HIGH COURT AND SESSIONS COURT WERE JUSTIFIED IN


REJECTING THE TEST FOR DETERMINATION OF SHYAMAS AGE OR NOT?

32. This Act of 2014 of the Republic of Indiana provides to treat juveniles aged between 16
and 18 as adults if they are charged for commission of heinous crimes.
A. THAT THE PRELIMINARY ASSESSMENT WAS CONDUCTED AS PER THE NEW ACT
33. The procedure for preliminary assessment has been laid down in 15 and it has been
complied with.
A.1. THE OFFENCES COMMITTED WERE HEINOUS OFFENCES
34. As defined in 2 (33) any offence which is punishable for an imprisonment for more than
seven years is termed as heinous offence. Shyama has been charged under 354, 326,
22

Legislative Brief The Juvenile Justice (Care & Protection of Children) Bill, 2014 See at:
http://www.prsindia.org/uploads/media/Juvenile%20Justice/Legislative%20Brief%20Juvenile%20Justice%20Bi
ll.pdf (Last Visited On 4 March 2016)

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304 and 302 r/w 34 of the Indian Penal Code. All the above mentioned except the offence
of 354 are heinous in nature.
A.2. HE HAS COMPLETED OR IS ABOVE THE AGE OF SIXTEEN YEARS
35. Shyama dropped out of the school after completing his sixth standard due to his poor
economical conditions23 and since then, he has been in the employment of Mr. Batra for
last six years doing his household chores.24 In all probabilities it is certain that Shyama
was at least 16 years of age. This is proved with the help of following documents:
Official entrance age to primary education as per World Bank,25 according to the data
the age at which students enter primary education, when the student had studied full
time and had progressed through the system without repeating or skipping a grade is
at least 6 years since 15 years.26
Selected Information on School Education 2011-12, by Government of India, Ministry
of Human Resource Development of India, Bureau of Planning, Monitoring and
Statistics, New Delhi.27 The minimum age for admission to class-I for Primary
School stage is generally 5 and 5+years or 6 and 6+ years. The minimum age for
admission to Class I is 5 and 5+year in 20 States and in 6 UTs.
A Guide for the Placement and Transcript Evaluation of Foreign-Born Students 20102011 provides the Lower Secondary for Standard I is 6 years, authenticated by
Department of Multicultural Education Based on information provided by IAU.
Portions reprinted with permission from the School Board of Broward County.28

23

Clarification 8: Shyama is a poor boy who lived in slums as per para 1 of the proposition it implies that he
dropped out of school due to his poor economic conditions
24
1 line 3 of the facts sheet.
25
www.worldbank.org/
26
Official entrance age to primary education (years) See at:
http://data.worldbank.org/indicator/SE.PRM.AGES?page=2 (Last Visited 3 March 2016)
27
Selected Information On School Education Government of India Ministry of Human Resource Development
Bureau Of Planning, Monitoring and Statics Division New Delhi 2011-12 See at:
http://mhrd.gov.in/sites/upload_files/mhrd/files/statistics/SISH201112.pdf (Last accessed on 1 March 2016)
28
A Guide for the Placement and Transcript Evaluation of Students See at:

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A.3. THAT SHYAMA WAS CAPAX OF COMMITTING THE OFFENCE


36. There are three conditions which need to be fulfilled for the preliminary assessment.
A.3.1. That he had the Mental and physical capacity
37. According to the Blacks Law Dictionary, The term mental capacity means the mental
ability to understand the nature and effect of ones acts. In a case when the appellant
picked up his knife and advanced towards the deceased with a threatening gesture, saying
that he would cut him to bite, and did actually cut him, his entire action can only lead to
one inference, namely, that he did what he intended to do and that he knew all the time
that a blow inflicted with a kathi would effectuate his intention.29
38. In case of Hiralal Mallick v State of Bihar,30 the court relied upon the Cross and Jones in
An Introduction to Criminal Law that state:
A child of ten years or over, but under the age of fourteen, is presumed to be incapable
of committing a crime, but this presumption may be rebutted by evidence of mischievous
discretion i.e., knowledge that what was done was morally wrong31.
A.3.2. Ability to understand the consequences of the offence
39. In the case of R v Owen,32 Proof of attainment of sufficient maturity can be arrived at by
the court on the consideration of all the circumstances of the case. It can be inferred from
the nature of the act and his subsequent conduct. In a case, when two eight-year-old boys
committed a gruesome murder in the northern English town of Stockport 152 years ago,
the coroner ruled that it isnt the offenders age but his strength of understanding and
judgment that establishes the true capacity to do evil or contract guilt. By that

http://www.palmbeachschools.org/multicultural/documents/TranscriptGuide.pdf (Last Accessed At 1 March


2016).
29
Ulla Mahapatra v The King AIR 1950 Ori 261.
30
1977 CrLJ 1921 (SC).
31
(1830) 4 C. and P. 236.
32
Abdul Sattar v Crown AIR 1949 Lah 51.

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yardstick, a youth aged 17 years, 6 months and 12 days must face the consequences of his
action like any adult.33
A.3.3. Circumstances in which the offence was committed
40. In a case where, a boy participated in a concerted action and used a sharp weapon for a
murderous attack on the accused, In the absence of evidence leading about the boys
feeble understanding of his actions he was convicted of the offence.34 In another case
where the accused aged 10 years was seen running out of the house and her husband was
found mortally wounded on the neck. She hid herself in the field. She was held by the
court to be capable because it could be inferred from the circumstances of the case and
her conduct that she was possessed with sufficient degree of criminal intent so as to
justify her conviction.35
41. Relating to the facts of the case, there was sufficient degree of criminal intent as to justify
Shyamas guilt under this case. When Ravi tried to save her sister, one blow was given on
his head and several blows over his abdomen and Vanita was also strangulated to death.
This act of the accused persons clearly showed that they were capable of committing the
offence and knew the consequences of their act.36 There commission of crime was
followed by their subsequent conduct of fleeing away from the spot immediately.
42. Therefore it is submitted that Shyama at the time of committing the offence was mentally
and physically capable, he had the ability to understand the consequences of his act the
circumstances in which he committed the offence affirms his guilt.
B. THAT THERE IS NO NEED FOR CONDUCTING THE TEST
43. The word shall, observes HIDAYATULLAH, J. is ordinarily mandatory but it is
33

Sunanda K. Datta-Ray, Op-Ed., MISCHIEVOUS DISCRETION, THE TELEGRAPH, Feb. 2, 2013 See at:
http://www.telegraphindia.com/1130202/jsp/opinion/story_16509423.jsp#.VtnaOPl961s (Last Accessed On 3
March 2016)
34
Hiralal v State of Bihar 1977 CrLJ 1921 (SC)
35
Mussammat Aimona 1864 1 W.R. (Cr.) 43.
36
5 of The Fact Sheet

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sometimes not so interpreted if the context or the intention otherwise demands,37 and
points out SUBBARAO, J.: When a statute uses the word shall, prima facie it is
mandatory, but carefully attending to the whole scope of the statute.38 If different
provisions are connected with the same word shall, and if with respect to some of them
the intention of the Legislature is clear that the word shall in relation to them must be
given an obligatory or a directory meaning, it may indicate that with respect to other
provisions also, the same construction should be placed.39
44. Furthermore, a provision in a statute which is procedural in nature although employs the
word "shall" may not be held to be mandatory if thereby no prejudice is caused.40
45. The provision of section 9(2) may be construed as both mandatory and directory."While
construing the word shall the Court may consider, inter alia, the nature and the design of
the statute, and the consequences which would follow from constituting it one way or the
other, the impact of other provisions whereby the necessity of complying with the
provisions in question is avoided, the circumstances, namely, that the statute provides for
a contingency of the non-compliance with the provisions, the fact that the noncompliance with the provisions is or is not visited by some penalty, the serious or trivial
consequences that flow there from, and, above all, whether the object of the legislation
will be defeated or furthered."
46. The use of word shall raises a presumption that the particular provision is mandatory.41
47. Thus two considerations for regarding a provision as directory are:
absence of any provision for the contingency of a particular provision not being
complied with or followed and

37

Sainik Motors v. State of Rajasthan, AIR 1961 SC 1480.


State of U.P. v. Babu Ram, AIR 1961 SC 751.
39
Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233.
40
PT Rajan v. TPM Sahir, AIR 2003 SC 4603.
41
JUSTICE G P SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12th ed. Lexis Nexis Butterworths
Wadhwa, Nagpur 2010).
38

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serious general inconvenience and prejudice that would result to the general public if
the act of the Government or an instrumentality is declared invalid for noncompliance with the particular provision.42
48. In each case one must look to the subject matter and consider the importance of the
provision disregarded and the relation of that provision to the general object intended to
be secured.43
49. The observation of the division bench in the above cited case law is very clear stating
that a provision can be regarded as directory if it will not result in serious general
inconvenience and prejudice to the general public by reading it in that manner. The
interpretation of the provision of section 9(2) as directory had not caused any prejudice in
the present case. Because in the above submission it is already proved that Shyama in the
present case had the sufficient maturity of understanding the consequences of his act and
had the mental and the physical capacity to commit such a heinous offence. If it is known
that the child has sufficient understanding to commit the alleged offence then, only one
question is left that whether he is below 16 years or not. Now in the present case if the
test if conducted would lead to only one result that he is above the age of sixteen years as
he in no circumstance be less than 16 years of age and if one child who is above the age
of sixteen years adding to it he has sufficient understanding of his act then in that case he
can be treated as an adult according to 15 of the new act. Therefore even if the test is
conducted it will not going to make any change in the present position and will only lead
to gross wastage of public time and money.
C. THAT HIS GUILT IS ESTABLISHED BEYOND REASONABLE DOUBT
50. Identity of finger marks is the strongest evidence of the identity of person and such
evidence is admissible44
42
43

Atlas Cycle Industries Ltd. v. State Of Haryana, AIR 1979 SC 1149.


AMITA DHANDA, N.S. BINDRAS INTERPRETATION OF STATUTES (11th ed. Lexis Nexis, Gurgaon 2014).

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51. In a case of B.A. Umesh v. State of Karnataka,45 where fingerprints found having
Evidentiary value, Corroborative but clinching evidence, Appellant accused of rape,
murder and robbery. There was no eyewitness who actually saw commission of these
crimes by appellant though there were witnesses who saw him inside house and leaving
the house along with household articles. His fingerprints however found on handle of
almirah lying in room, Held, fingerprints scientifically established beyond doubt that
accused was present in room where incident occurred. This along with evidence of other
witnesses, held, established that it was accused who committed crime.

III.

WHETHER SHEKHAR SHOULD BE ACQUITTED OF ALL THE CHARGES LEVELED


AGAINST HIM OR NOT?

52. It is submitted that the conviction of Shekhar by the Juvenile Justice Board, the Sessions
Court and the High Court is valid and appropriate. The case has been proved beyond
reasonable doubts and it is certain that Shekhar has committed the offence.
A. THAT INGREDIENTS AS TO THE OFFENCES ARE SATISFIED
53. In State of Maharashtra v. Goraksha Ambaji Adsul46, the SC reiterated that in a case of
circumstantial evidence, if the prosecution is able to establish chain of events to satisfy
ingredients of commission of offence, accused would be liable to suffer consequences of
his proven guilt.
54. Here, in the instant case, Shekhar has been charged of 302, 304, 326, 354 r/w 34. The
ingredients of the offences are listed as follows:
A.1. INGREDIENTS OF 354
55. The essential ingredients of 35447 are as follows:

44

BATUK LAL, THE LAW OF EVIDENCE (20th ed. Central Law Agency, Allahabad 2014).
(2011) 3 SCC 85.
46
(2011) 7 SCC 437 (27).
47
Ram Kripal S/o Shyam Lal Charmakar v. State of Madhya Pradesh, 2007 II CrLJ 2302 (SC).
45

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That the assault must be on woman.

That the accused must have used criminal force on her.

That the criminal force must have been used on the woman intending thereby to
outrage her modesty.

56. Assault is defined under 351 of IPC and criminal force is defined under 350 of IPC.
57. In Ram Kripal S/o Shyam Lal Charmakar v. State of Madhya Pradesh48, it was held that
the test to determine whether modesty of a woman has been outraged is whether action of
offender is such as could be perceived as one which is capable of shocking sense of
decency of a woman.
58. According to medical report, there were scratches and injuries which were found on
Vanitas body. As per the facts sheet her clothes were torn.49
A.2. INGREDIENTS OF 326
59. The following ingredients need to be satisfied:

That grievous hurt has been caused voluntarily.

That such hurt has been caused using dangerous weapon or dangerous means.

That the act doesnt fall under the exception of 335.

60. However, it is important to note that whether a particular weapon comes under the
category of dangerous weapons or not depends on various factors. Therefore, no
generalization can be made about what constitutes dangerous weapon. It needs to be
ascertained in the light of the facts of each case.50
61. Here, in the instant case, a rod has been used by dangerous means and several blows have
been made on vital part of the body of Ravi. This satisfies the ingredients of 326.
A.3. INGREDIENTS OF 302

48

Ibid.
5 Of The Fact Sheet.
50
Mathai v. State of Kerala, (2005) CrLJ 898 (SC).
49

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62. The present case is alleged to be covered by thirdly of 300 and 302 provides for the
punishment of culpable homicide amounting to murder. If the case is not covered under
302 then the case is covered under 304.
63. In Virsa Singh v. State of Punjab51, the court gave a four-point test which prosecution
must observe and prove in order to bring the case under this section:
Firstly, it must establish, quite objectively, that a bodily injury is present,
Secondly the nature of the injury must be proved; These are purely objective
investigations. Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or unintentional, or that
some other kind of injury was intended. Once these three elements are proved to be
present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above is sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has nothing to do with the
intention of the offender.
64. As per the admitted facts of the case, there were several blows made on the abdomen of
Ravi. Vanita was strangulated to death. This injury is sufficient in the ordinary course of
nature to cause death. Hence, it is certain that case is established under 302. Also, the
case doesnt fall under any of the exception appended to 300.
A.4. INGREDIENTS OF 34
65. Following are the essential ingredients of section 34 which need to be fulfilled before
holding any person liable under this section:

51

Common intention to commit an offence.

AIR 1958 SC 465.

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Participation by all the accused in doing such act or acts constituting the offence.52

66. In order to attract the provision of this section, it is not enough that there was the same
intention on the part of the several people to commit a particular criminal act or a similar
intention.

53

Intention is a question of fact which is to be gathered from the acts of the

parties54.
67. It is trite law that 34 is only a rule of evidence and does not create a substantive
offence.55 It means that if two or more persons do a thing jointly, it is just the same as if
each of them has done it individually.56 Common intention requires a prior consent or a
pre-planning.57
68. In Ranganath Sharma v. Satendra Sharma58, it was held,
Direct proof of common intention is seldom available and, therefore, such intention
can only be inferred from the circumstances appearing from the proved facts of the
case and the proved circumstancesThe prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or meeting of minds of all the
accused persons.be it pre-arranged or on the spur of the moment; but it must
necessarily be before the commission of the crime.
B. THAT THERE IS SUFFICIENT EVIDENCE TO PROVE SHEKHARS GUILT BEYOND
REASONABLE DOUBT
69. The judgment of the Sessions Court states that, Shekhars case has been proved beyond
reasonable doubts before the Juvenile Board. Moreover case has also been corroborated
by circumstantial evidences, statement of eye witness and medical evidence.59
52

KD GAUR, CRIMINAL LAW CASES AND MATERIALS (7th ed. Lexis Nexis, Gurgaon 2013).
M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency, Faridabad 2005).
54
S.K. SARVARIA, R.A. NELSONS INDIAN PENAL CODE (9th ed. Lexis Nexis Butterworths Gurgaon 2002).
55
DR. HARI SINGH GOUR, 1 INDIAN PENAL CODE (14th ed. Law Publishers Pvt. Ltd., Allahabad 2013)
56
Bomkesh Bhattacharya v. Lakshmi Narayana Datta, 1978 CrLJ 848.
57
State of Mysore v. Venappasetty, 1973 CrLJ 1568.
58
(2009) 1 SCC (Cr.) 415.
59
12 of The Fact Sheet.
53

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B.1. THAT SHEKHAR WAS PRESENT IN THE EXHIBITION


70. The statement given by Ram Manohar on 10th March, 2015, proves that Shekhar was
present at the exhibition. Ram Manohar stated that he saw Shekhar sneaking out of the
basement on the night of 8th of March60. Shekhar too has not disputed this fact. Shekhar
has time and again stated that his mere presence does not prove his guilt.
B.2. THAT THERE IS CIRCUMSTANTIAL AS WELL AS MEDICAL EVIDENCE
71. Human agency may be faulty in expressing picturisation of actual incident but
circumstantial agency cannot fail.61 Therefore, many at times it is said that men may tell
lies, but circumstances do not62 If the combined effect of all the facts taken together is
conclusive in establishing the guilt of the accused, the conviction would be justified even
though it may be that one or more of these facts, by itself /themselves, is /are not
decisive.63 That the circumstances taken cumulatively should form a chain so complete64
that there is no escape from the conclusion that within all human probability, the crime
was committed by the accused and none else.65 134 enshrines the maxim, Evidence has
to be weighted not counted66
72. In Sharad Birdichand Sarda v. State of Maharashtra67, the Supreme Court described the
five golden principles that were laid down in Hanumant v. State of M.P.68, Panchsheel, of
the proof of the case based on circumstantial evidence. These rules are as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be
fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt
60

6 of The Facts Sheet.


Rewa Ram v. State of Madhya Pradesh, (1978) Cr.L.J. 858.
62
Aftab Ahamd Anasari v. State of Uttaranchal, 2010 2 SCC 583.
63
Ibid.
64
Rajesh Rai v. State of Sikkim, 2002 Cr.L.J. 1385 at P. 1390(Sikkim).
65
Padaala Veera Reddy v. State Of A.P, AIR 1990 SC 79.
66
JUSTICE C.K. THAKKER, LAW OF EVIDENCE, (2nd ed. Whytes & Co., New Delhi 2015).
67
AIR 1984 SC 1682.
68
AIR 1952 SC 343.
61

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of the accused..
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused.
73. In Bhim Singh v. State of Uttrakhand69, SC held that, To base a conviction on
circumstantial evidence put forth by the prosecution should establish a complete and
unbroken chain of events so that only one inference could be drawn out from the same.
74. Now, in the present case, a clear chain has been established. There have been series of
events which point towards the guilt of the accused.
Firstly, there was an animosity between Shekhar and Ravi since childhood.
Secondly, recently, there has been a fight between the two of them.70
Thirdly, there was an act towards the commission of the offence. When he saw
Shyama being insulted by Ravi and Vanita, he grabbed this opportunity to talk and
share his hatred for Ravi and Vanita with Shyama.71
Subsequently, Shyama took a leave for three days having prior knowledge regarding
the visit of the family to exhibition.
Lastly, the statement of Ram Manohar that he saw Shekhar sneaking out of the
basement, which was the place of crime scene. This statement reveals the subsequent
conduct of Shekhar and corroborating it with the undisputed fact that all the four
persons fled away.72 Ram Manohars statement completes the chain.

69

(2015) 4 SCC 739.


2 of the facts sheet.
71
3 of the facts sheet.
72
12 and 13 of the fact sheet.
70

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75. Here, each individual fact might not be sufficient to convict Shekhar, but when all these
circumstances are linked to each other and when a chain is made, then Shekhars guilt
becomes explicit. It was also corroborated by medical evidence.73
76. The common intention is clear as all the four accused persons at the spur acted in
common consensus, encouraged and acted as a support to each other for the commission
of the offence.
B.3. THAT THE STATEMENT OF RAM MANOHAR IS CREDIBLE
77. In the present case, Ram Manohar happens to be a chance witness. The evidence of a
chance witness requires a very cautious and close scrutiny and a chance witness must
adequately explain his presence at the place of occurrence.74 Deposition of a chance
witness whose presence at the place of incident remains doubtful should be discarded.75
B.3.1 That Ram Manohars presence is explained
78. But here, his presence is very well explained. He was there, because he was a visitor to
the painting exhibition, which was open to public.76 His presence at the basement needs
no further explanation.
B.3.2. That the statement of Ram Manohar has been corroborated
79. His statement can also be relied upon because his statement has been corroborated by an
undisputed fact. The undisputed fact is that all the four persons fled away. And Ram
Manohar is saying that he saw Shekhar sneaking out also.
80. Thus, on the basis of the evidence adduced and corroboration by ocular evidence, the
chain established point out to one firm conclusion that Shekhar is blameworthy in the
instant case as his guilt is proved beyond reasonable doubt.

73

10 of the fact sheet.


Sarvesh Narain Shukla v. Daroga Singh and Ors., (2007) 13 SCC 360.
75
Shankarlal v. State of Rajasthan, (2004) 10 SCC 632.
76
Clarification 6: Ram Manohar is a person who came to see the Painting Exhibition,
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PRAYER

Whereof in the light of facts of the instant case, written pleadings and authorities cited, it is
humbly prayed before this Hon'ble Supreme Court that it may be pleased to hold, adjudge
and declare:

1. That the Juvenile Justice (Care and Protection of Children) Act, 2014 is constitutional.
2. That Shyama is capax of committing the offences the charges of which are leveled
against him and that there is no need to conduct any test for determining his age.
3. That Shyama is guilty under 302, 326, 354 r/w 34 of IPC, 1860.
4. That Shekhar is guilty under 302, 326, 354 r/w 34 of IPC, 1860.

Pass any other order, which the court may deem fit in light of the facts of the case, evidences
adduced and justice, equity and good conscience.

Sd/Counsels for the Respondent

MEMORIAL FOR THE RESPONDENT

xiv