Code: 328P

10TH NLUO - INTRA UNIVERSITY MOOT COURT COMPETITION, 2018

BEFORE THE HON’BLE SUPREME COURT OF INDIA

In the matter between

Mr. RAMBO_________________________________________________(PETITIONER)

v.

UNION OF INDIA___________________________________________ (RESPONDENT)

SUBMISSION BEFORE THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

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MEMORIAL for PETITIONER TABLE OF CONTENTS

TABLE OF CONTENTS

STATEMENT OF JURISDICTION_______________________________________________II

STATEMENTS OF FACTS____________________________________________________III

SUMMARY OF ARGUMENTS_________________________________________________1
PRAYER___________________________________________________________________2

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MEMORIAL for PETITIONER STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Supreme Court of India under Article 32 of the
Constitution of India 1950.

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MEMORIAL for PETITIONER STATEMENT OF FACTS

STATEMENTS OF FACTS

1. Chintu a boy aged 11 years, made an allegation of sexual abuse against his tutor Mr.
Rambo (who was his private tutor). Chintu came home crying loudly narrated the
incident. Upon hearing the incident his parents rushed to Mr. Rambo’s house and
started thrashing him. Upon hearing the commotion, police arrived at the scene of crime
and took away Mr. Rambo, Chintu’s parents and Chintu to the Police station.
2. Police recorded the statements of Chintu’s parents, Mr. Hari and Mr. Raja and Chintu.
Thereafter on the same day an FIR was registered against Mr. Rambo under Section 6
of the Protection of Children from Sexual Offenses Act, 2012 (“POCSO, 2012”) and
Section 377 r/w Section 511 of the Indian Penal Code, 1860 (“IPC, 1860”) and Mr.
Rambo was taken into custody and has since been in jail.
3. The Medical test of chintu was conducted and the report showed that “There are no
signs which suggests insertion of penis or penis like object into anal cavity. Certain
reddishness observed around the anal cavity”. The statement of victim and of other
witness are recorded and the witnesses had given their statement on the basis of
narrated statement by chintu and on the basis of him coming out crying from Mr.
Rambo’s House. Thereafter Charge sheet. The Ld. ASJ was pleased to take cognizance
of the offences as alleged within the said Final Report. Mr. Rambo pleaded not guilty
and the Ld. ASJ proceeded to frame charges against Mr. Rambo under Section 6 read
with Section 5 of the POCSO, 2012 and under Section 377 and Section 511 of the IPC.
4. Mr. Rambo filed a bail application along with an application requesting the Prosecuting
Agency to conduct the Polygraph/Narco-analysis/Brain Mapping Test in order to rebut
the presumption against himself. The bail has been rejected and also the request for the
test was also turned down by the court. It may be noted, that since Chintu was in a
private tuition, only he narrated the alleged incident in his evidence, all the other
witnesses only attested to his conduct upon him leaving Mr. Rambo’s house.
5. Thereafter realizing that on account of the presumption under Section 29 read with
Section 30 it would be impossible to prove the negative that the alleged act had never
taken place, Mr. Rambo approached the Hon’ble Supreme Court of India under Article
32 of the Constitution of India challenging the vires of Section 29 and Section 30 of the
POCSO, 2012. Further, in alternative Mr. Rambo prayed before the Hon’ble Supreme
Court of India to allow him to conduct a Polygraph/Narco-analysis/Brain Mapping Test
in order to prove his innocence.

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MEMORIAL for PETITIONER SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

1. Section 29 and Section 30 of the POCSO, 2012 are in violation of fundamental rights
of Mr. Rambo.

It is humbly submitted before Hon’ble Supreme Court of India that Section 29 and
Section 30 of POCSO Act, 2012 are violative of the Constitution of India as these
sections of the act are in derogation with the Fundamental rights of Mr. Rambo under;
[1.1] Article 20(3) and [1.2] Article 21 and [1.3] Article 14 of the Indian Constitution.
The submissions made is in three-fold way.

1.1. Section 29 and section 30 are violative of article 14 of constitution of India

(¶ 1.) Principal of natural justice is recognized as a part of Art. 14. This principle is
automatically get attracted when there is violation of Art. 14 of Constitution of India. Art. 14
forbid class legislation. But the differentia adopted as the basis of classification must have
rational nexus with the object sought to be achieved by the statue in question. Herein section
30 has created the class with no intelligible differentia involved as in, the section 30 uses the
word any offence which includes all the offences, it does not consider the gravity of the
offences, so there is same punishment for all. Therefore, it is humbly contended it is violative
of Art. 14.

1.2. Section 29 and section 30 are violative of article 20(3) of constitution of India

(¶ 2.) Section 29 and 30 of POCSO act do not mean that without the strong evidence on
record, the presumption can be drawn against the accused. But then also the sections under
the statute incorporate the reverse presumption clause in order to shift the burden on the
accused, but as per the rule of Jurisprudence the basic responsibility lies with the prosecution
to prove beyond reasonable doubt. “In recent times, the basic principle that the prosecution
has to prove the charge of guilt against the accused beyond reasonable doubt is being diluted
by the legislatures in several statutes.” It is humbly contended the change of burden of proof
from prosecution to the accused is in turn compelling him to give evidence and it is also
against the basic tenet of the Criminal Law jurisprudence and also violating the fundamental
right.

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MEMORIAL for PETITIONER SUMMARY OF ARGUMENTS

1.3. Section 29 and section 30 are violative of article 21 of constitution of India.

Accused is presumed to be innocent until the prosecution proves his guilt beyond reasonable
doubt. is the basic ingredient of Due Process clause under criminal justice system. Right to
life is one of the basic human right and not even the state has the authority to violate that
right. When article 21 is in its draft form it was article 14 and it provided that no person shall
be deprived of his life or liberty without due process of law.

2. MR. RAMBO CAN BE PERMITTED TO CONDUCT VOLUNTARY POLYGRAPH / NARCO-

ANALYSIS/ BRAIN MAPPING TEST IN ORDER TO PROVE HIS INNOCENCE.

(¶ 3.) It is humbly submitted to the Hon’ble Supreme court that Mr. Rambo should be
permitted to the Scientific techniques in order to prove his innocence as it is a matter of right
to produce evidence for his innocence as the Section 29 and Section 30 of the POCSO Act
Presumed guilty on the very first hand. Therefore, in order to prove he is not guilty Hon’ble
Supreme should allow his petition.

2.1. Petitioner (Rambo) should be allowed because he voluntarily giving consent to

the Scientific test.

The scientific test i.e. Polygraph/ Narco-analysis / Brain mapping test or other invasive
scientific techniques could be carried out upon the accused with his consent and the result
thereof would be admissible in evidence and would help the court in reaching the truth and
for the just decision of the case. In the present case Mr. Rambo is a asking for voluntary test
which is similar to the above case in which this test is allowed. So herein it is contended that
the test is allowed with the consent of the accused in order to give him fairer chance to prove
his innocence.
In Selvi v. State of Karnataka it is said that we do leave room for the voluntary administration
of this scientific test. Any information or material that is subsequently discovered with the
help of voluntary administered test results can be admitted in accordance with Section 27 of
the Evidence Act, 1872. So herein also voluntary can be allowed and can be taken as material
evidence in order to that he is not guilty.

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MEMORIAL for PETITIONER SUMMARY OF ARGUMENTS

2.2. Voluntary Evidence with the help of Narco Analysis/Polygraph/Brain Mapping

is admissible in courts

As to Art 20(3) constitution vis-à-vis Section 27 of Indian Evidence Act, the Supreme court
observed that: If the evidence or any information has been given by an accused person
without any threat but voluntary that will be admissible in evidence and that it will not hit by
20(3) of the Constitution. It is contended in the landmark case of Selvi and ors. V. State of
Karnataka the court must take into account for the uses of scientific techniques by persons
other than investigators and prosecutors. Narco Analysis test could be requested by the
defendants who want to prove his innocence, and it can be used as an admissible evidence.

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MEMORIAL for PETITIONER PRAYER

PRAYER

In the light of facts stated, argument advanced and authorities cited it is most humbly prayed
and implored before the Hon’ble Supreme Court of India, that it may be pleased to adjudge
and declare that:

1. Section 29 and section 30 of the POCSO, 2012 are in violation of fundamental rights.
2. Mr. Rambo Should be permitted to conduct a voluntary polygraph/narco- analysis
/brain mapping test in order to prove his innocence.

And further, pass any other such order(s) which it may deem fit in furtherance of justice,
equity and good conscience in the favour of the petitioner.

Date: 17.08.2018
Place: New Delhi
(s/d)
Counsel for the
petitioner

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