Good Morning, your Lordship, may it please the court, this is the counsel appearing on behalf of

the appellant in the case of CBI and others vs. Kalicharan and ors. I will be addressing this court
for 14 minutes and I will be dealing with the second issue concerning the abduction and murder
of Reema and Riya and the third issue regarding rape of Riya.

To contextualise this issue, the counsel would like to divert this honourable court’s attention to
some key facts of this issue. Pursuant to this hon’ble court’s judgement dated 23rd December,
2016, which declared the practice of prohibiting entry to women in Lord Jogeshwara temple as
unconstitutional. The deceased, Reema and Riya tried to enter the Lord Jogeshwara temple for
offering prayers. If your lordships may refer to para 11 of the moot proposition, it is clear that
Reema and Riya were denied entry by Pt. Kali Charan who had blocked the gates along with his
two sons, Bhanu and Kalu. He further threatened Reema and Riya by ordering his co-priests, Pt.
Bhawani and Pt. Jagga to bring lathis. While ordering for the lathis, he makes it clear that he
wants to teach a life lesson to the women, particularly Reema and Riya as, according to him, they
were committing a disgraceful and ignominious act. After mere 6 days, i.e. on 30th December,
2016, Reema’s dead body is found in the Jogeshwara temple and Riya’s dead body in a jungle
near Mohini Bazaar.

If your Lordships permit, the counsel seeks permission to proceed with the first issue.

It is our humble submission that the accused has committed the offence of Abduction in order to
murder, under Section 364 of IPC. In the case of Badshah v. State of U.P., the Supreme Court
has stated that there are two essential ingredients of this offence and consequently, I have two
submissions regarding this issue.

Firstly, The accused have abducted Reema and Riya.

And Secondly, The accused have abducted Reema and Riya with the intention to murder them.

Proceeding with the first submission,

In order to establish that the accused have abducted Reema and Riya, four factors have to be
looked at- The testimony of Mr. Krishna Das, The SUV car used in the offence, presence of
blood-stained lathis in the SUV car and the testimony of Mrs. Savita.
1. On the night of 29th December, 2016, at around 11:30 pm, Mr. Krishna Das, while walking on
the road near Mohini Bazaar, heard two girls screaming. Upon following the direction of the
noise, he saw four men in saffron dhotis dragging two girls into an SUV car. 1

2. The CBI investigation report, states that the car recovered as evidence and through which the
offence was committed, is a white SUV bearing the registration number AP 05 XS 8K8K and
registered under the name of Pt. Jagga Ram Mohan Shukla. The SUV car also contained the
blood-stained lathis used in the abduction, rape and murder of Reema and Riya. The FIR filed by
Pt. Jagga matched with the aforementioned vehicle. Furthermore, Pt. Jagga was absconding.
Your Lordship, absconding, has been held to be a telltale circumstance of a guilty mind.2 Hence,
Pt. Jagga was involved in the crime.

3. Mrs. Savita’s testimony further confirms that Pt. Bhawani did not come home till 3 a.m. Pt.
Bhawani confessed to his wife that he had committed a sinful act under the influence of Pt. Kali
Charan (The Pontiff). The late night arrival of Pt. Bhawani at his home, his confession and his
subsequent conduct of absconding – which is further corroborated by the CBI Investigation
Report3 all lead to the conclusion that both Pt. Bhawani and Pt. Kali Charan were involved in the
heinous offence against Reema and Riya.

It is pertinent to point out that Pt. Kali Charan has an influential character and has many political
connections, due to which he had appointed his sons Bhanu and Kalu as priests in the same
temple. It can be clearly inferred that he exercised considerable influence over the other four
priests in the capacity of Pontiff as well as an influential father. This can also be confirmed by
the fact that both Bhanu and Kalu were involved in threatening the deceased on 24th December,
2016. Furthermore, Pt. Jagga while giving a description of the crime in his FIR, states that his
co-priests Bhanu and Kalu had duplicate keys to his car. From this fact, it can be inferred that a
certain level of trust existed them. Therefore, it is the humble submission of the appellant that the
accused, using the SUV of Pt. Jagga have abducted Reema and Riya at around 11:30 p.m. near
Mohini Bazaar.

1
Annexure 3, Moot Proposition.
2
Kundula Bala Subrahmanyam v. State of Andhra Pradesh (1993) 2 SCC 684.
3
Annexure 3, Moot Proposition.
Moving on to the second submission, that the accused have abducted Reema and Riya with the
intention to murder them –

If I may direct your attention to page 14 of the written submissions

Your Lordship, in a case where evidence showed that the accused were armed with deadly
weapons, had previously issued threats to victims and medical evidence was that death took
place shortly after the abduction, the court held that it can be safely inferred that the abductors
were also the killers and an offence under Section 364 with the aid of Sec. 34 was clearly made
out.4 In the present matter also, these three elements are to be looked at.

In the present matter, the accused had previously threatened Reema and Riya with lathis on 24th
December, 2016. Furthermore, the CBI investigation report5 and Forensic Laboratory Report6
brings to light the murder weapons i.e. the two daraatis and the two lathis. The daraatis were
found under the Neem tree behind the sanctum sanctorum where Reema’s dead body was
discovered and another from a gutter tank in a temple, and the lathis stained with the blood of the
deceased were recovered from the SUV car.7 It is pertinent to note that the two daraatis were
similar to the daraati recovered as evidence from Pt. Kali Charan’s home.

The Post Mortem Report further confirms that the expected time of death of Reema and Riya
was around 3:00 a.m. – 4:00 a.m. which is shortly after the time of abduction.8

At this stage, it is crucial to mention the FIR 9 filed by Pt. Jagga regarding the stolen SUV on 27th
December, 2016. While patrolling on 30th December, 2016, the police found a suspicious SUV in
an abandoned jungle, near Mohini Bazar. The description of theft as given by Pt. Jagga is that he
could not find his car. According to the FIR, he had given duplicate car keys to his co-
priests, he enquired about the incident but they were unaware. However, when the offence
came to light, Pt. Jagga absconded, which is a telltale sign of a guilty mind. 10 Therefore,
there are only two possibilities – First, Pt. Jagga filed a fake FIR and this was just one

4
Gurnam Singh v. State of Punjab, AIR 1998 SC 2673.
5
Annexure 3, Moot Proposition.
6
Annexure 6, Moot Proposition.
7
Annexure 6 and Annexure 3, Moot Proposition.
8
Annexure 2-A and Annexure 2-B, Moot Proposition.
9
Annexure 1-A, Moot Proposition.
10
Kundula Bala Subrahmanyam v. State of Andhra Pradesh (1993) 2 SCC 684.
small step of a much bigger plan, or, second, that Pt. Jagga’s car was stolen by his co-
priests, and Pt. Jagga later became part of this scheme to murder Reema and Riya. After,
the murder, Pt. Jagga absconded in order to evade arrest. In both these situations, Pt.
Jagga is involved in the crime and is guilty of this offence.

Moreover, unnatural, abnormal and unusual behavior of the accused after the offence is a
relevant fact against him, such conduct being inconsistent with his innocence. 11 In the present
matter, Pt. Bhawani tried to abscond as stated in the CBI Investigation Report 12 and further
corroborated by the testimony of his wife Savita.13 According to the report, no evidence was
found of Pt. Jagga’s whereabouts.14 Furthermore, the statement given by Pt. Kali Charan u/s 161
of CrPC is a self-serving statement and does not come within any of the exceptions contained in
Section 21 of the Evidence Act, hence is inadmissible.15

In light of all of the above, it is clearly established that the accused have abducted Reema and
Riya with the object to murder them. Therefore, it is our humble submission that the accused is
guilty of an offence under Section 364 of IPC.

This gives rise to the issue of murder. You lordships, section 300 elucidates the essentials of
murder and therefore I have three submissions in this issue,

Firstly, Existence of a presumption that the abductors committed the murder

Secondly, The acts of the accused resulted in the death of reema and riya.

Thirdly, The accused have the requisite mens rea for commission of the offence of murder.

Moving on to my first submission, Your Lordship, the Supreme Court, in the case of Sucha
Singh v. State of Punjab16 has held that in cases where an abducted victim was found murdered
later on, the court can safely draw the presumption that the abductors are responsible for the
murder. As it has already been established that the accused have committed the offence of
Abduction in order to murder under Section 364 of The Indian Penal Code, 1860, a presumption

11
Jaydeep Neogi v. State of Goa, (2009) 15 SCC 83.
12
Annexure 3, Moot Proposition.
13
Annexure 4, Moot Proposition.
14
Annexure 3, Moot Proposition.
15
Sitaram Nai v. Puranmal Sonar and Ors. AIR 1985 Ori 171.
16
Sucha Singh v. State of Punjab, 2001 CrLJ 1734 (SC).
may be drawn by this Hon’ble Court that the abductors are responsible for the murder of Reema
and Riya.

Moving on to my second submission, The act of the accused resulted in the death of reema and
riya.

Your Lordships, Actus reus is any wrongful act.17 Thus, in a case of murder, actus reus would be
the physical conduct of the accused that causes death of the victim. In the present matter actus
reus is established by 3 things - witness statements [I], Forensic and CBI Investigation Report
[II] and Post Mortem report [III].

Proceeding with the first limb of the argument –

WITNESS STATEMENT

At around midnight on 29th December, 2016, Mr. Krishna Das heard two girls screaming and
saw four men in saffron dhotis dragging them into an SUV car. From the testimony of Mrs.
Savita, it is clear that Pt. Kali Charan brain washed and instigated Pt. Bhawani to punish the
sisters.

Further the presence of Pt. Bhawani is also indicated by Mr. Shyam Sunder’s testimony where he
did not come home before 3 a.m. Mr. Uday Shetty’s statement also indicates that at the
approximate time of commission of offence Pt. Kali Charan was not at the temple. From the
statement of Pt. Bhawani, both to his wife and under section 161 of Cr.P.C., he implicates Pt.
Kali Charan as the true master mind of the crime. Pt. Kali Charan’s statement wherein he claims
to have proceeded to his residence after the chanting prayers is a self-serving statement and
therefore, does not hold any evidentiary value.18 The act of informing the police about the dead
body found at the Sanctum Sanctorum was done with the intention to mislead the investigation.
The fact that the body was found in the Sanctum Sanctorum where only the priests had access
further established their guilt. The conduct of Pt. Jagga and Pt. Bhawani, subsequent to the crime
as absconding is a very strong link in the sequence of events establishing their guilt.

17
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed. 2006).
18
Sitaram Nai v. Puranmal Sonar AIR 1985 Ori 171.
It is crucial here to examine the credibility of the abovementioned witnesses. Mrs. Radha Kishan
is the mother of the deceased twin sisters. It has been held by this hon’ble court that close
relatives of the deceased are unlikely to falsely implicate any one and this relationship is
generally a guarantee of truth.19 Mrs. Savita w/o Pt. Bhawani testified that her husband confessed
to committing a sinful act against the deceased. Pt. Bhawani in his statement under section 161
of Cr.P.C. states that his wife is suffering from “some kind of dissociative identity disorder”.
However, the manner of giving evidence is also material.20 This court has accepted that
promptness, frankness, readiness to speak and detailed testimony are a tell tale sign of an honest
testimony.21 Mrs. Savita’s testimony is very detailed and frank, and hence she is a credible
witness. Furthermore, the statement given by Pt. Bhawani that he did not know anything
about the girls, who were they and what they were doing against them, is clearly false as he
was involved in threatening the girls on 24th December, 2016, therefore, it is likely that his
statement about his wife’s mental disorder is also false. Mr. Krishna Das, who witnessed the
four men dragging the two girls into an SUV is an ‘independent witness’. An ‘independent
witness’ is one who is not interested in the outcome of the case.22 Examination of independent
witness is a rule of prudence and no motive to testify falsely can be ascribed to them.23
Therefore, Mr. Krishna Das is a credible witness.

II. FORENSIC REPORT AND CBI INVESTIGATION REPORT

As per the CBI Investigation Report24 and the Forensic Science Laboratory Report25, three
daraatis and two lathis were recovered as evidence. Through the comparison and identification
examination of the daraatis, it is clearly established that the blood stained daraatis recovered
from the temple premises were similar to the daraati recovered from the house of Pt. Kali
Charan.26 According to the Forensic Report, the blood stained daraati was found under the Neem

19
Joginder Singh v. State of Punjab, AIR 2009 SC 1198.
20
Justice U.L. Bhat, Relevancy, Proof and Evaluation of Evidence in Criminal Cases, Universal Law Publishing Co.
(2014) pg. 131.
21
Ibid.
22
Harwinder Singh @ Ripal v. State of Punjab 2013 (1) Cri CC 546.
23
Ibid.
24
Annexure 3, Moot Proposition.
25
Annexure 6, Moot Proposition.
26
Annexure 3, Moot Proposition.
Tree which is situated behind the Sanctum Sanctorum of the temple27 where Reema’s body was
found.28 The report further concludes that the two daraatis were sharp and sufficient to cut a soft
object like skin and cause the cut on victim’s neck measuring 1.5 inches.29 The lathis which were
recovered from the car had blood stains which matched those of the deceased.30 As the lathis had
previously been used to threaten Reema and Riya and to “teach a life lesson for committing a
disgraceful and ignominious act”31 it can be inferred that they were a usual weapon of choice for
the accused.

It is crucial to note that the temple is only open to the general public from 17th November to 26th
December of every year; therefore, there is no possibility of the presence of anyone other than
the priests inside the temple. The fact that entry was allowed to the priests is also corroborated by
the testimony of Mr. Uday Shetty.32 When the direct evidence is well corroborated by the
circumstantial evidence and conforms to the probabilities, there is no reason why it should not be
accepted.33

In arriving at the conclusion of a crime, the Court has to judge the evidence by the yardstick of
probabilities, its intrinsic worth, and the animus of witnesses.34 It is our humble submission that
in light of the above facts only one reasonable conclusion may be reached. The murder weapons
– daraatis and lathis, belonged to the accused. The presence of matching blood stains on the
lathis indicates that they were used for the murder of the deceased. Furthermore, as entry inside
the temple was only allowed to the priests, it can safely be concluded that the accused used the
weapons i.e. daraatis and laathis to murder the deceased.

III. POST MORTEM REPORT

The post mortem report becomes important in cases where the cause of death is to be established
and is a matter of controversy.35 The Supreme Court has held that post mortem report facilitates
the determination of the precise nature of injuries, which is only possible due to the internal
27
Annexure 6, Moot Proposition.
28
Moot Proposition, ¶13.
29
Annexure 3, Moot Proposition.
30
Ibid.
31
Moot Proposition, ¶11.
32
Annexure 4, Moot Proposition.
33
Field, C.D., Expert Evidence: Medical and Non-Medical, 4th ed. (2007).
34
State of Punjab v. Jagir Singh Baljit and Karam Singh, AIR 1973 SC 867.
35
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883.
examination of the injuries.36 Moreover, it is not possible for the Prosecution to explain each and
every injury suffered by the witnesses.37 However, for the sake of convenience, the Prosecution
feels obliged to assist this Hon’ble Court in understanding the intricacies of the post mortem
report.

The Post Mortem report of Reema clearly states that the manner of death is homicide.38 The
report further states the cause of death as slit throat, multifarious stabbing wounds, battering of
face and intracranial hematoma.39 The deceased also had multiple bruise marks on neck, left
hand, stomach and right leg, mandibular fracture and multiple fractures on both the arms.
According to Riya’s post mortem report, the manner of death is homicide and the cause of death
is asphyxia. The vaginal examination suggested forceful penetration by more than two persons.
A 20 cm cylindrical rod was inserted into the vagina causing a hymnal tear. It can safely be
inferred by the nature of injuries that the acts of the accused have directly resulted in the death of
Reema and Riya.

In light of the above witness statements, forensic and CBI investigation Report and Post Mortem
reports, it is most humbly submitted that the acts of the accused have directly resulted in the
death of Reema and Riya.

B.3 MENS REA OF MURDER IS ESTABLISHED.

Mens rea is considered as guilty intention,40 which is proved or inferred from the acts of the
accused.41 There are three limbs to the argument that the accused had the requisite mens
rea

Firstly, it is submitted that the intention to kill is established [I] in light of clear-cut motive
of the accused [II]. And Secondly, Arguendo, absence of motive would not be a sufficient
ground to dismiss the case [III].

Moving on to the first submission,

36
Bhagwati Prasad v. State of M.P., (2010) 1 SCC 697.
37
Ravindra Shantaram Sawant v. State of Maharashtra , AIR 2000 SC 2461.
38
Annexure 2-A, Moot Proposition.
39
Ibid.
40
Ambala v. State of Rajasthan, 2003 Cr LJ 115; Sudhin Chandra Barman v. State of WB Cr LJ 2006 Cal 4656.
41
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
I. THE ACCUSED HAD INTENTION TO KILL.

It has been held by this honorable court that It is presumed that every sane person intends
the result that his action normally produces and if a person hits another on a vulnerable
part of the body, and death occurs as a result, the intention of the accused can be no other
than to take the life of the victim and the offence committed amounts to murder.42
Moreover, the intention to kill is not required in every case, mere knowledge that natural and
probable consequences of an act would be death will suffice for a conviction under s. 302 of
IPC.43 The intention to kill can be inferred from the murder and nature of the injuries
caused to the victim.44 Causing a serious injury on a vital part of the body of the deceased with
a dangerous weapon must necessarily lead to the inference that the accused intended to cause
death or bodily injury sufficient to cause death of the victim, and it answers to section 300 and is
murder.45 Furthermore, Infliction of stab injury on a vital organ with a lethal weapon was
held to be evidence of the intention to cause death.46 Furthermore, where the exact role
played by everyone of the accused could not be established, yet their common intention to
cause death was established, SC upheld the conviction under Sec 302.47

In the present matter, the accused have intentionally inflicted various bodily injuries which
are sufficient to cause death in the ordinary course of nature. Reema’s post mortem report
states the cause of death as a deep slit throat, multifarious stabbing wounds, battering of
face and Intracranial Hematoma. Riya’s death according to the post mortem report was
caused due to Asphyxia as a result of manual strangulation which was stated to be
homicidal in nature. Ligature marks were present. It is pertinent to note that a 20 cm
cylindrical rod had been inserted into her vagina which caused a hymnal tear. It is humbly
submitted before this hon’ble court that all of the bodily injuries cumulatively inflicted
upon the deceased are more than sufficient to cause death in the ordinary course of nature;
therefore, the accused had intention to kill.

42
Abbas Ali v. State of Rajasthan, (2007) 9 SCC 129.
43
Santosh v. State of Madhya Pradesh, 1975 Cri LJ 602 (SC).
44
Laxman v. State of Maharashtra, AIR 1974 SC 1803.
45
Ahmed Bin Salam v. State of A.P., AIR 1999 SC 1617; Md. Idrish v. State, 2004 Cr LJ 1724 (Raj); Md. Sharif And
Anr. v. Rex, AIR 1950 All 380; Badri v. State of U.P., AIR 1995 3 All 189; Dibia v. State of U.P., AIR 1953 All
373; State of Maharashtra v. Bhairu Sattu Berad, AIR 1956 Bom 609.
46
Devaramani Bheemanna v. State of T.N., 1995 CrLJ 1534 (SC).
47
Ramkrishna v. State of Maharashtra, (2007) 13 SCC 525.
MOVING ON TO THE SECOND SUBMISSION -

II. THE ACCUSED HAD MOTIVE TO KILL.

Section 8 of the Indian Evidence Act, 1872 stipulates that any fact is relevant which shows or
constitutes motive or preparation for any fact in issue or relevant fact.48 If your Lordships may
refer to Page 21 of the written submissions, Your Lordships, It has been held by this
honorable court that, previous threats or altercations between parties are admitted to show
motive.49 It is further pertinent to note that if there is motive in doing an act, then the
adequacy of that motive is not in all cases necessary. Heinous offences have been committed
for very slight motive.50

In the present matter, On 24th December, 2016, Pt. Kali Charan directed the other priests
to bring lathis and threatened Reema and Riya, who were trying to enter into the temple.
This is further corroborated by the statement of Mrs. Radha Kishan who testified that her
daughters were being threatened by the priests and they were the ones responsible for
raping and murdering her daughters.51

Moving on to my last submission, that absence of motive is irrelevant

III. ARGUENDO, ABSENCE OF MOTIVE IS IRRELEVANT.

Assuming for the sake of argument that the accused had no motive, it is humbly contended that
absence of motive is no ground for dismissing the case. Your Lordships, it is humbly
submitted that, Motive is immaterial so far as the offence is concerned, and need not be
established52 as the mere existence of motive is by itself, not an incriminating circumstance and
cannot take the place of a proof.53

Therefore, absence of proof of motive, does not break the link in the chain of circumstances
connecting the accused with the crime, nor militates against the prosecution case and is not

48
Section 8, The Indian Evidence Act, 1872.
49
Son Lal v. State of Uttar Pradesh, AIR 1978 SC 1142; Chhotka v. State of WB, AIR 1958 Cal 482 .
50
State v. Dinakar Bandu (1969) 72 Bom LR 905.
51
Annexure 4, Moot Proposition.
52
Ratanlal and Dhirajlal, The Indian Penal Code, 35th Ed. (2017).
53
State of Punjab v. Sucha Singh, AIR 2003 SC 1471.
fatal as a matter of law.54 When the circumstantial evidence on record is sufficient to prove
beyond any doubt to prove that it was the accused and no one else, who intentionally caused the
death of the accused then, motive of the crime need not be proved,55 as in the current case.

Therefore, it is humbly submitted before this Hon’ble Court that the accused is guilty for
the offence of murder, given that the requisite mens rea and actus reus is established from
the facts of the case, beyond a reasonable doubt.

WITH YOUR LORDSHIPS PERMISSION, THE COUNSEL WOULD LIKE TO MOVE

ON TO THE NEXT ISSUE OF RAPE

III. Whether all Accused are guilty of committing rape of Riya?

It is humbly submitted that the accused are guilty of committing the offence of gang rape under
Section 376-D of the Indian Penal Code, 1860.56 In order to establish the guilt of the accused
under this section, ESSENTIALS - it is essential that there was a group of persons that
decided to act in concert with the common intention to commit rape on the victim [A], One
or more person from the group, in furtherance of the common intention, has acted or
participated in concert in the commission of rape [B].57

A. THE ACCUSED HAVE ACTED WITH THE COMMON INTENTION TO COMMIT RAPE.

In order to establish an offence Under Section 376-D, Indian Penal Code, 186058, the
prosecution must adduce evidence to indicate that more than one accused had acted in
concert and in such an event, if rape had been committed by even one, all the accused will
be guilty irrespective of the fact that she had been raped by one or more of them and it is
not necessary for the prosecution to adduce evidence of a completed act of rape by each one
of the accused.59 In other words, this provision embodies a principle of joint liability and the
essence of that liability is the existence of common intention; that common intention could arise

54
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175.
55
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC).
56
Section 376-D, The Indian Penal Code, 1860.
57
Pradeep Kumar v. Union Administrator, Chandigarh (2006) 10 SCC 608.
58
Section 376-D, The Indian Penal Code, 1860.
59
Ashok Kumar v. State of Haryana, (2003) 2 SCC 143.
and be formed suddenly, but, there must be meeting of minds.60 In the instant case, common
intention is established by submitting that it is a case of revenge rape. In Lakhu Manjhi vs.
The State of Bihar61, the judges of High Court of Jharkhand concluded that:

I find substance in the observation of the Sessions Judge that the prosecutrix was a helpless
victim who became the prey of the lust of the appellant out of anger and anguish with an
intention to revenge as there was altercation between the prosecutrix and the sister of
appellant only a few hours prior to the occurrence and such situation proves the motive.62

This Honorable Court’s order allowing women to enter the temple was taken as a major
insult by the fanatic priests of the temple. This court order was a direct consequence of the
PIL filed by the twin sisters seeking issuance of direction against the Government of Arya
Pradesh, Lord Jogeshwara Trust and District Magistrate of Katra to ensure entry of
female devotees between the age group of 11 to 51 years to Lord Jogeshwara Temple at
Katra which had been denied to them on the basis of Lord Jogeshwara Temple
(Prohibition on Entry of Women) Act 1985, customs and usages as unconstitutional being
violative of fundamental rights guaranteed under the Constitution of Indiana and further
to pass directions for the safety of women pilgrims.63

As Lord Jogeshwar is a ‘hypermasculine celibate’64 God, the efforts and actions of both the
girls were seen as a grave attack to the modesty of the Lord. Hence, in order to take a
revenge the priests decided to launch an attack on the modesty of the deceased. All the
accused had a strong motive to teach a lesson to the girls and the intention to take revenge
from them, hence the gang rape.

B. MORE THAN ONE PERSON PARTICIPATED IN THE COMMISSION OF RAPE.

This Hon’ble Court has consistently held that where there are more than one person acting in
furtherance of their common intention of committing rape on a victim, it is not necessary that the
prosecution should adduce clinching proof of a completed act of rape by each one of the accused

60
Mukesh and Ors.v. State for NCT of Delhi and Ors. (2013) 2 SCC 587.
61
LakhuManjhi v.The State of Bihar 802 JHRHC 2006.
62
Id. at 21.
63
Moot Proposition, ¶8.
64
Moot Proposition, ¶2.
on the victim.65 Each one in the group is liable to be convicted for the offence of gang rape even
if not everyone has committed the act.66

According to the result of the Vaginal Examination in the Post Mortem Report, the nature
of vaginal injuries suggests forceful penetration by more than two persons.67 The external
examination further concludes that a 20 cm rod was inserted into the vagina which has
caused the hymen to tear in a 3’o’clock to 8’o’clock position. Therefore, it is humbly
submitted that, all the five accused worked in tandem towards the common intention of
‘teaching a lesson to the girls’ and assisted each other in whichever manner possible for the
attainment of the same goal. This makes all of them an active participant in the act and
hence holds them guilty for the heinous act.

C. THE DEATH PENALTY IS THE APPROPRIATE PUNISHMENT FOR THE OFFENCES IN THE

PRESENT MATTER.

It is well-settled that in cases pertaining to death penalty, three tests need to be satisfied prior to
the sentencing stage.68 It is submitted that the conditions for awarding the death penalty
have been fulfilled in the present case [C.1]. Furthermore, the principles of sentencing have
not been violated in the present case as the punishment is proportional to the mischief it
seeks to cure [C.2].

C.1 THE THREE TESTS FOR AWARDING THE DEATH PENALTY HAVE BEEN
SATISFIED IN THE PRESENT CASE.

It is well-settled that the death penalty is imposed only in the most exceptional of circumstances.
Generally, courts have laid down three tests that have to be satisfied in any given case in order to
impose the death penalty. These tests are: the crime test, which deals with aggravating
circumstances; the criminal test, which pertains to mitigating circumstances; and the rarest
of the rare test.69 Such a judicial approach endorses the twin elements of individualized yet

65
Om Prakash v. State of Haryana, 2011 (14) SCC 309; State of Rajasthan v. Roshan Khan, (2014) 2 SCC 476.
66
Jaising P. Modi, Medical Jurisprudence and Taxonomy, 26th edn. (2018).
67
Annexure 2-B, Moot Proposition.
68
Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Shankar Kisanrao Khade v. State Of Maharashtra, (2013) 5
SCC 546.
69
Gurvail Singh alias Gala v. State of Punjab, (2013) 2 SCC 713; Santosh Kumar Singh v. State of M.P., (2014) 12
SCC 650.
principled sentencing. It is submitted that the crime test has been satisfied in the present case [I].
Additionally, the criminal test has also been satisfied [II] and; finally, the present case falls into
the category of rarest of the rare cases, where the death penalty can be awarded [III].

I. THE CRIME TEST HAS BEEN SATISFIED IN THE PRESENT CASE.

Courts in various jurisdictions have placed a high premium on aggravating circumstances. The
aggravating circumstances are aptly named as the ‘crime test’ since the focus is on facts and
elements of the crime committed.70 Aggravating circumstance refers to “A fact or situation
that increases the degree of liability or culpability for a tortuous/criminal act.”71 There is no
exhaustive list of aggravating circumstances,72 and judges have the discretion to identify
aggravating facts which would warrant a higher sentence.73 Generally, the nature of the
offence is considered as an aggravating factor.74

The accused committed a heinous offense with the utmost disregard to humanity and their
motive was to perpetuate the rotten mentality of considering women as inferior beings and
to teach a lesson to the girls who tried to attain equality in worshipping their God. The
impact of the entire incident will be adverse for the pace of women’s rights movements
across the nation and also on this Court’s judgment that allowed women to enter the Lord
Jogeshwara temple as women will not be able to exercise because of the dense cloud of
angst and fear of harm from the temple authorities.

II. THE CRIMINAL TEST HAS BEEN SATISFIED IN THE INSTANT CASE.

Mitigating circumstances are those elements of a defendant’s character, offence,

background, or any other factor that might form the basis of reducing a defendant’s
sentence. Mitigating factors will be deemed sufficient to grant leniency only when they can

70
Gurvail Singh alias Gala v. State of Punjab, (2013) 2 SCC 713; Birju v. State of M.P., (2014) 3 SCC 421; Mahesh
Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292; Dharam Deo Yadav v. State Of Uttar Pradesh, (2014)
5 SCC 509.
71
Henry Campbell Black, Black’s Law Dictionary, 236 (Bryan A. Garner ed. 7th edn., 1999).
72
Jagmohan Singh v. State of Uttar Pradesh, 1973 SCR (2) 541.
73
People v. Black, (2005) 35 Cal 4th 1238; Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What
Do Jurors Think, Columbia Law Review, 1538, 1547 (1998).
74
262nd Report of the Law Commission of India, The Death Penalty, ¶5.2.36 (2015).
balance the aggravating factors.75 Additionally, depending on the gravity of the crimes
committed, courts may find that the weight of mitigating factors is limited/non-existent at the
sentencing stage.76 In the instant case, the accused were influential pandits, and the
aggravating circumstances are more than mitigating circumstances.

III. THE PRESENT CASE FALLS INTO THE CATEGORY OF RAREST OF THE RARE CASES.

It is well settled that an unqualified right to life guides sentencing in death penalty cases. 77 The
rarest of the rare doctrine is a pragmatic compromise between abolition and the haphazard
application of death penalty.78 Courts have used the effect on society as a touchstone to identify
79
the rarest of the rare cases, as imposing a sentence without considering its effect on the social
order would be futile.80 The rationale behind this touchstone is deterrence, which is the most
important object of capital punishment.81

Where a crime is committed with extreme brutality and the collective conscience of the
society is shocked, courts must award death penalty, irrespective of their personal opinion
as regards desirability of death penalty. By not imposing a death sentence in such cases, the
Courts may do injustice to the society at large. Diabolic nature of the crime and the
manner of committing crime was evident and reflected in the manner in which gang-rape
was committed with the victim;, injuries on the body of the deceased; insertion of rod in
her private parts and causing fatal injuries to her private parts and other internal injuries.
These were considered enough by this court82to award the death penalty. The facts are very
similar in the instant case.All the accused are priests and are in a position of influence that

75
Purushottam Dashrath Borate v. State of Maharashtra, AIR 2015 SC 2170; Sushil Murmu v. State of Jharkhand,
(2004) 2 SCC 338; Sangeet v. State of Haryana, (2013) 2 SCC 452.
76
Mirko Bagaric, Abolishing Prior Criminality as Aggravating Sentencing Factor, 3(4), Original Law Review, 111,
116 (2007).
77
Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Ankush Maruti Shinde v. State of Maharashtra, (2009) 6
SCC 667; Brajendrasingh v. State of Madhya Pradesh, (2012) 4 SCC 289.
78
David Johnson, The Next Frontier: National Development, Political Change, And The Death Penalty In Asia, 438
(2009); N. Prabha Unnithan, Crime And Justice In India, 378 (2013).
79
Jameel v. State of U.P., (2010) 12 SCC 532; Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220;
State of M.P. v. Basodi, (2009) 12 SCC 318; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561;
Bantu v. State of U.P., (2008) 11 SCC 113; State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of U.P. v.
Sri Krishan, (2005) 10 SCC 420; State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715.
80
Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667; Brajendrasingh v. State of Madhya Pradesh,
(2012) 4 SCC 289.
81
35th Report of the Law Commission of India, Capital Punishment, ¶4.3.1 (1967).
82
Mukesh and Ors. vs. State for NCT of Delhi and Ors., (2013) 2 SCC 587.
is perceived with great reverence by the people of A.P. (80% of the population is disciple of
Lord Jogeshwara83) and Indiana and therefore the crime sets a very negative example in
the society. It therefore becomes a pertinent responsibility on the court to set the highest
form of deterrence to prevent similar crimes in the society. In addition to this, the Forensic
report, evidence and witnesses together successfully prove the culpability of the all the
accused. The manner of the gang rape sends a shiver down one’s spine. The insertion of a
rod upto 20 cm in her vagina shows the egregiousness of the crime and proves that it was
not merely due to heat of the moment.

Therefore it is humbly submitted that Death Penalty should be awarded to all the accused.

PRAYER

Wherefore, in light of the issues raised, authorities cited and arguments advanced, it is most
humbly and respectfully submitted that the Hon’ble Supreme Court of Indiana be pleased to:

a. Dismiss the Curative Petition and declare the exclusionary practice of denying entry to women
in the Lord Jogeshwara Temple as unconstitutional.

b. Uphold the findings of the CBI Court and hold the accused guilty of the offences under Sec.
364, 302 and 376D.

c. Award death penalty to all accused.

83
Moot Proposition, ¶2.
And/or, Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

All of which is most humbly and respectfully submitted.

Counsel on behalf of the Respondent in CP 111 of 2018

Counsel on behalf of Appellant in Cr.App. No. 1028 of 2018