KERALA LAW ACADEMY CLASS MOOT

PRESENTED BEFORE

THE HON’BLE SUPREME COURT OF INDIA

Special Leave Petition number 987/2020

In the matter of

NEERAJ & Anr.

v.

State of uttar pradesh

Counsels for Respondents:





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 {MEMORIAL ON BEHALF OF THE RESPONDENTS}

TABLE OF CONTENTS

Content Page No.

1. Abbreviations used 3
2. Index of Authorities 4-5
3. Statement of Jurisdiction 6
4. Statement of facts 7-8
5. Issues involved 9
6. Summary of Arguments 10-11
7. Written Pleadings 12-18
I- WHETHER THE SPECIAL LEAVE PETITION
FILED UNDER ARTICLE 136 IS MAINTAINABLE
OR NOT?

II- WHETHER THE TRIAL COURT CAN AWARD

THE QUANTUM OF PUNISHMENT

III- WHETHER THE DECISION OF HC WAS

ERRONEOUS

2
8. Prayer 19

ABBREVIATIONS USED
Abbreviations Full Form

¶ Para/Paras

AIR All India Reporter

S. Section

UOI Union Of India

AO Assessing Officer

App. Appropriate

Del Delhi

Pg. Page

Ed. Edition

H.C High Court

Hon’ble Honourable

Dist. District

Diff. Difference

Kar. Karnataka

J&K Jammu and Kashmir

Guj Gujarat

Ltd. Limited

SC Supreme Court

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 SCR Supreme Court Reporter

Supp. Supplementary

S. Section

B/w Between

v. Versus

INDEX OF AUTHORITIES
CASES
 Council of Scientific and Industrial Research v. K. G. S. Bhatt, (1989) 4 SCC 635;
 State of H. P. v. Kailash Chand Mahajan, AIR 1992 SC 1277.
 Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666
 Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65;
 Arunalchalam v. Sethuratnam, AIR 1979 SC 1284;
 Union of India v. Rajeshwari & Co., AIR 1986 SC 1748;
 Gurbakhsh Singh v. State of Punjab, AIR 1955 SC 320.
 CIT v. Maganlal Chaganlal (P) Ltd., (1997) 11 SCC 557.
 Amarchand Sobhachand v. CIT, AIR 1971 SC 720.
 CIT v. Orissa Corp Ltd., AIR 1986 SC 1849.
 Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234.
 Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy & ors.
(2003) 8 SCC 361
 DAV Managing Committee and another v. Dabwali Fire Tragedy Victims Association
and others (1983) 4 SCC 141
 K.Satwant Singh v. State Of Punjab AIR 1960 SC 266
 Ranchhod Lal v. State of Madhya Pradesh AIR 1965 SC 1248
 Union Of India v. Ajeet Singh (2013) 4 SCC 186
 Duryodhan Rout V. State of Orissa Cr Appeal 2277,2278 of 2009
 Union of India v. Prabhakaran (2013) 10 SCC 494

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  Sanjay vs. State of Uttar Pradesh, 2016(3) SCC 62

LEGAL DATABASES
1. Manupatra

2. SCC Online

3. West Law

4. Hein Online

LEXICONS
1. Aiyar Ramanathan P , Advanced Law Lexicon, 3rd Edition, 2005, Wadhwa Nagpur.

2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999

BOOKS

 H.M. Seervai, Constitutional Law of India, Vol. 2, 845 (4th ed., Universal Law
Publishing, New Delhi, 2010)
 Halsbury’s Laws of India, Vol. 35, 564 (2nd ed., Lexis-Nexis Butterworth Wadhwa,
Nagpur, 2007)
 Professionals Criminal Law Manual
 Ratanlal and Dhirajlal Indian Penal Code, 2017 edition

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STATEMENT OF JURISDICTION

The appellant herein has been vested, in this Court’s discretion under Article 136 to grant special
leave to 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. In this case, the petitioner
has preferred an appeal against the impugned orders of the Hon’ble High Court of Allahabad.
The present memorandum sets forth the facts, contentions and arguments in the present case.

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STATEMENT OF FACTS
On 08.10.2004 at about 7.30 p.m., when Rahul the Complainant, reached near the house of
Umesh his paternal uncle, he heard noise coming out from that house. When Rahul entered the
house, he saw Kartik, Pulkit and Neeraj, all from the same locality, armed with country made
pistols in their hands, abusing his cousin Yogesh , Shubham (son-in-law) and Ravita, his niece
with filthy language and they made fires from their respective pistols with the intention of killing
them. The bullet fired by Kartik injured Yogesh, the bullet fired by Pulkit caused injury to Ravita
on her abdomen, who was pregnant and the bullet fired by Neeraj injured Shubham in his head.
All of them were in critical state. The incidence was witnessed by D,E,F etc. Rahul had given the
‘written report’ at Police Station, after getting it written byP Singh.

On the basis of the written report submitted by Rahul on 08.10.2004 at 20.45 hrs., F.I.R. case
Crime No. 313 of 2004 was registered under Sections 452, 307 and 504 IPC at Police Station
Railway Road, District Meerut. On the same day, the investigation was conducted by sub-

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Inspector V Singh. The site plan was prepared and the statements of the witnesses were recorded
under Section 161 of the Code of Criminal Procedure,1973 (hereinafter referred to as “the
Code”). Thecharge-sheet was filed against Kartik and Neerajfor the offences punishable under
Sections 452,307, 316 and 504 IPC. The case was committed to the Court of Sessions, Meerut
for trial on 18.05.2005. The trial was proceeded as S.T. No. 390 of 2005 in the Court of
Additional Sessions Judge.

During the pendency of the investigation, Pulkit died and Kartik was declared as ‘juvenile’ to be
tried separately. Neeraj was charged for the offences under Sections 452, 307/34, 504 and 316/34
of IPC. By judgment dated 11.12.2007, the Trial Court convicted the appellant for the offences
punishable under Sections 452, 307/34, 316/34 and 504 IPC and sentenced him seven years’
rigorous imprisonment with fine of Rs.5000/- under Section452 IPC, in default of payment of
fine, to further undergo three months’ simple imprisonment, imprisonment for life with fine of
Rs.10,000/- under Section 307/34 IPC, in default of payment of fine, to further undergo six
months’ simple imprisonment, ten years’ rigorous imprisonment with fine ofRs.5000/- under
Section 316/34 IPC, in default of payment of fine, to further undergo simple imprisonment for
three months and two years’ rigorous imprisonment with fine of Rs.1000/- under Section 504
IPC, in default of payment of fine, to further undergo simple imprisonment for one month. All
the sentences would run concurrently.

Aggrieved by the judgment of the Trial Court, the accused filed an appeal being Criminal Appeal
before the Allahabad High Court. By judgment dated 21.04.2015, the High Court dismissed the
appeal filed by the accused and upheld the judgment of conviction and sentence passed by the
Trial Court. Against the said judgment, the accused has filed this appeal by way of special leave
before this Court i.e, Hon’ble Supreme Court of India for urging that the appellant has already
undergone custody around 10 to 12 years till date and hence it would be just and proper to reduce
the appellant’s sentence already undergone and he be set at liberty by upholding his conviction.

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 ISSUES RAISED

I- WHETHER THE SPECIAL LEAVE PETITION FILED

UNDER ARTICLE 136 IS MAINTAINABLE OR NOT?

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-------------------------------------------------------------

II- Whether the trial court has the power to

grant that quantum of punishment as per
the sections under which accused charged?

-------------------------------------------------------------

III- WHETHER THE HIGH COURT HAS MADE AN

ERROEOUS DECISION

SUMMARY OF ARGUMENTS
I. WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 IS
MAINTAINABLE OR NOT?

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It is humbly submitted before the Hon’ble Court that the appeal filed by the petitioner is not
maintainable as Special Leave cannot be granted when substantial justice has been done and no
exceptional or special circumstances exist for the case to be maintainable. Also, there has been
no failure of justice and Special Leave Petition cannot be granted just because the decision of HC
might be suffering from some legal errors. Further, no substantial question of law is involved in
the present case.

Moreover, the petitioner has not exhausted alternative remedies. In the present case no special
circumstances existed to forgo the statutory process of appeal. The petitioner had an option to
appeal to the concerned HC’s higher bench or apply for revision. In case of failure of above
remedies, the petitioner also had an option to pursue his case before the SC under Art. 132 which
provides for appellate jurisdiction of SC in appeals from HC in civil, criminal or other
matters.Article 136 of the Constitution states,

II- Whether the trial court has the power to grant that quantum of
punishment as per the sections under which accused charged?

It is humbly submitted before the Hon’ble Supreme Court that the trial court has the power to
grant that quantum of punishment as per S.28 CrPC and the accused has to undergo the
imprisonment consecutively as there is no need to try the offences jointly.

III- WHETHER THE DECISION OF HIGH COURT WAS ERRONEOUS?

It is humbly submitted before the Hon’ble Supreme Court of India the judgment of the High
Court was not erroneous and as per merits. It is required to take into account several factors
arising in the case, such as the nature of offence committed, the manner in which it was
committed, its gravity, the motive behind the commission of the offence, nature of
injuries sustained by the victim, whether the injuries sustained were simple or grievous in nature,
weapons used for commission of offence and any other extenuating circumstances if any. Once
these factors are considered while imposing the sentence, there remains little scope to interfere in
quantum of punishment.

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12
 WRITTEN PLEADINGS

I. THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 IS

NOT MAINTAINABLE.

It is humbly submitted before the Hon’ble Court that the appeal filed by the petitioner is not
maintainable as Special Leave cannot be granted when substantial justice has been done and no
exceptional or special circumstances exist for the case to be maintainable. Also, there has been
no failure of justice and Special Leave Petition cannot be granted just because the decision of HC
might be suffering from some legal errors. Further, no substantial question of law is involved in
the present case.

Moreover, the petitioner has not exhausted alternative remedies. In the present case no special
circumstances existed to forgo the statutory process of appeal. The petitioner had an option to
appeal to the concerned HC’s higher bench or apply for revision. In case of failure of above
remedies, the petitioner also had an option to pursue his case before the SC under Art. 132 which
provides for appellate jurisdiction of SC in appeals from HC in civil, criminal or other matters.
Article 136 of the Constitution states,

“Special leave to appeal by the Supreme Court-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to 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.”

In Pritam Singh v. State, the Supreme Court laid down the broad principles within which it
would exercise its jurisdiction in granting special leave under this Article. The Court observed:

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"On a careful examination of Article 136 along with the preceding article, it seems clear that the
wide discretionary power with which this Court is invested under it is to be exercised sparingly
and in exceptional cases only, and as far as possible a more or less uniform standard should be
adopted in granting special leave in the wide range of matters which can come up before it under
this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in
income tax cases, in cases which come up before different kinds of tribunals and in a variety of
other cases. The only uniform standard which in our opinion can be laid down in the
circumstances is that the Court should grant special leave to appeal only in those cases where
special circumstances are shown to exist.

NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXIST AND SUBSTANTIAL

JUSTICE HAS BEEN DONE.

It is humbly contended by the respondent that the petitioner must show that exceptional
circumstances exist and that if there is no interference, it will result in substantial and grave
injustice and the case has features of sufficient gravity to warrant review of the decision appealed
against, on merits. Only then the Court would exercise its overriding powers under Art. 136.
Special leave will not be granted when there is no failure of justice or when substantial justice is
done, though the decision might suffer from some legal errors.1

Further, it is not possible to define the limitations on the exercise of the discretionary jurisdiction
vested with the SC under Art. 136. But, being an exceptional and overriding power, 2 naturally it
has to be exercised sparingly with caution only in special and extraordinary situations. 3 The
provision does not give right to the party to appeal to the SC rather it confers a wide
discretionary power on the SC to interfere in suitable cases.

IT INVOLVES NO SUBSTANTIAL QUESTION OF LAW

It is contended by the Respondent that the appeal doesn’t involve any substantial question of law
rather it involves pure question of fact and hence, is not maintainable. Questions of fact cannot
1
Council of Scientific and Industrial Research v. K. G. S. Bhatt, (1989) 4 SCC 635; See also, State of H. P. v.
Kailash Chand Mahajan, AIR 1992 SC 1277.
2
Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666
3
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65; See also, Arunalchalam v. Sethuratnam, AIR
1979 SC 1284; See also, H.M. Seervai, Constitutional Law of India, VOL. 1, 252 (4th ed., Universal Law
Publishing, Allahabad 2010).

14
be permitted to be raised unless there is material evidence which has been ignored by the HC or
the finding reached by the court is perverse.4

Generally, on finding of fact, no interference should be made.5 Even in cases where conclusions
are reached without proper discussion, yet if it involves finding on fact, no interference of SC is
called for.6 Further, if the conclusion is based on some evidence on which subsequently a
conclusion could be arrived at, no question of law is raised.7

It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached
to the litigation.8 Being a substantive statutory right, it has to be regulated in accordance with law
in force at the relevant time. It cannot be decided merely on equitable grounds.

THE COURT CAN NOT INTERFERE IN LEGISLATIVE DECISIONS

In our country, the legislature and the judiciary have separate roles. The Judiciary
dispassionately interprets law. The Legislature can make new laws and alter old ones. The Indian
Penal Code is placed under the Concurrent List of the Constitution, meaning that both Parliament
and State Legislatures are competent to amend it. In keeping with the federal structure of our
governance, State Legislatures may amend a central law subject to approval of the President.

Hence, it is humbly submitted before the Hon’ble Supreme Court that the Special leave
petition filed by the petitioners is not maintainable as there is no gross injustice done to the
public at large and this SLP has been filed pertaining to the individual interest of the
petitioner and that no grave injustice has been done to him.

4
Union of India v. Rajeshwari & Co., AIR 1986 SC 1748; See also, Gurbakhsh Singh v. State of Punjab, AIR 1955
SC 320.
5
CIT v. Maganlal Chaganlal (P) Ltd., (1997) 11 SCC 557.
6
Amarchand Sobhachand v. CIT, AIR 1971 SC 720.
7
CIT v. Orissa Corp Ltd., AIR 1986 SC 1849.
8
Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234.

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II. Whether the trial court has the power to grant that quantum of punishment as per the
sections under which accused charged?

According to S. 220 of the Code of Criminal Procedure the trial court has the power to jointly try
different offences under the same transaction, but it is not necessary that the trial court is bound
to follow that procedure. As it is not a mandatory provision, it is the discretion of the trial court
as it wishes to try the case.

• In the case of9, the apex court held that the sections of joinder of charges are not
compelling in nature. They only permit the joint trial of charges under certain circumstances, and
the courts may consider the same in the interest of the administration of justice after thoroughly
studying the facts and circumstances of each case.

• In a case 10
, it was held that it is at the discretion of the court whether to apply Section
219, Section 220 and section 223 of the Code Of Criminal Procedure, 1973 or resort to Section
218. The accused has not been given this right to resort to joinder of charges.

• The question regarding the misjoinder of charges and joint trial for distinct offences was
answered by the Supreme Court11. It was held by the court that the principles underlying the
provisions in the Code of Criminal Procedure, 1973 only act as a guiding principle.

Thus there was no need for Joint trial of charges. Thus the sentence passed by the trial court
should be read by omitting the sentence “All the sentences would run concurrently”.

Similarly according to S.31(2) of the code which reads as: In the case of consecutive sentences, it
shall not be necessary for the Court by reason only of the aggregate punishment for the several
offences being in excess of the punishment which it is competent to inflict on conviction of a
single offence, to send the offender for trial before a higher Court: Provided that-

9
K.Satwant Singh v. State Of Punjab AIR 1960 SC 266
10
Ranchhod Lal v. State of Madhya Pradesh AIR 1965 SC 1248
11
Union Of India v. Ajeet Singh (2013) 4 SCC 186

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(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen
years;

(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court
is competent to inflict for a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences
passed against him under this section shall be deemed to be a single sentence.

Thus the offender has only undergone imprisonment of 10 or 12 years thus he is bound to serve
imprisonment of 4 or 2years so as to complete 14 years.

In12, the apex court held that in case of appeal against consecutive sentence the court should
consider the sum total of all sentences passed by the trial court and it shouldnt in any case exceed
the sentencing power of the trial court or14 years.

Thus it is humbly prayed before this Hon’ble court to dismiss the appeal as the accused failed to
primafacie prove the issue.

12
Duryodhan Rout V. State of Orissa Cr Appeal 2277,2278 of 2009

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III Whether the High court had made an erroneous decision?

It is humbly submitted before the Hon’ble Court that the courts did not commit any error in
exercising their judicial discretion in the light of facts found proved while awarding life
imprisonment to the appellant.

Section 307 provides three punishments for three classes of nature of the cases. One class of
cases, which falls in first part of the Section, prescribes a term “which may extend to ten years
and fine”, second class of cases, which falls in the second part of the Section, prescribes either
“imprisonment for life" or "such punishment,13 which is prescribed in first part" and the third
class of cases is when any person offending under Section 307 IPC is under sentence of
imprisonment for life, causes hurt, be punished with “death”.

So far as the punishment prescribed in first part of the Section is concerned, it applies to the
cases where a person does any act with an intention or knowledge and under any circumstances,
caused death.14

It is for the reasons that firstly, the facts of the case squarely fall in the second part of Section
307 IPC; secondly, gunshot injury caused by the appellant to the victim-Shahjad was grievous in
nature, thirdly, the bullet injury was caused in the head which was the most delicate and vital
part of the body; fourthly, the facts of the case satisfied the ingredients of the first part of Section
307 IPC, namely, all the three accused which included the appellant had gone to the house of
victim with a common intention to kill the members of family and in order to accomplish the
intention, each accused targeted one member of the family present in the room which resulted in

13 Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy & ors. (2003) 8 SCC 361
14
DAV Managing Committee and another v. Dabwali Fire Tragedy Victims Association and others (1983) 4 SCC
141

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death of a stillborn child of preganant lady, who was hit by gunshot in her abdomen and other
two members suffered serious gunshot injuries though both survived.15

It is required to take into account several factors arising in the case, such as the nature of offence
committed, the manner in which it was committed, its gravity, the motive behind the commission
of the offence, nature of injuries sustained by the victim, whether the injuries sustained were
simple or grievous in nature, weapons used for commission of offence and any other extenuating
circumstances if any. Once these factors are considered while imposing the sentence, there
remains little scope to interfere in quantum of punishment. Such is the case here. 16 On going
through the same, it is distinguishable on the facts.

15
Union of India v. Prabhakaran (2013) 10 SCC 494

16
Sanjay vs. State of Uttar Pradesh, 2016(3) SCC 62.

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 PRAYER

Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities cited,
that this Hon'ble Supreme Court may be pleased to hold that:

1. The Special Leave Petition is not maintainable.

2. That the trial court can provide for the quantum of punishment and the accused is bound to
serve the remaining imprisonment also.

3. The decision of High Court was not erroneous.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of

Justice, Fairness, Equity and Good Conscience

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

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 Sd/-

Counsels for Respondents

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