Memorial On Behalf Of Respondent

SNBP LAW COLLEGE

AFFLIATED TO SAVITRIBAI PHULE PUNE UNIVERSITY

3rd Internal Moot Court

Submitted By

Miss. Pooja Maruti palle

B.A.L.L.B Vth

2019-20

Memorial on Behalf of Respondent

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 Memorial On Behalf Of Respondent

IN THE HIGH COURT OF ALLAHABAD

CRIMINAL APPEAL NO._________________ of 2020

IN THE MATTER OF

MR.RAJU AND OTHERS…………...……………………………………..…..(Appellant)

Versus

STATE OF UTTAR PRADESH………………………………………...…......(Respondent)

CRIMINAL APPEAL UNDER ARTICLE 374 OF THE CRIMINAL PROCEDURE CODE

To Hon’ble The Chief Justice of Allahabad and His Lordship Companion Justice of the High
Court of Allahabad the Hon’ble Submission of the Respondent.

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 Memorial On Behalf Of Respondent

TABLE OF CONTENTS

SR.NO. CONTENTS PAGE NO.

1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4

A) List of Statutes 4

B) List of Cases 4

C) List of Websites 5

D) List of Books 5

3. STATEMENT OF JURISDICTION 6

4. STATEMENT OF FACTS 7

5. STATEMENT OF ISSUES 9

6. SUMMARY OF PLEADINGS 10

7. ARGUMENTS ADVANCED 11

8. THE PRAYER 21

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 Memorial On Behalf Of Respondent

LIST OF ABBREVIATION

Vs. Versus

SC Supreme Court

HC High Court

U/s Under section

U/a Under article

Etc. Etcetera

Sec. Section

Art. Article

IPC Indian Penal Code, 1860

CBI Crime Bureau of Investigation

SCR Supreme Court Report

ILI Indian Law Institute

Anr Another’s

Ors Others

ILR Indian Law Report

AIR All India Reporter

Cri LJ Criminal Law Journal

Cr.PC Criminal Procedural Code

CPC Civil Procedural Code

R/w Read with

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 Memorial On Behalf Of Respondent

INDEX OF AUTHORITIES

A) List of Statutes

1. The Constitution of India, 1950.

2. The Indian Penal Code, 1860.
3. The Criminal Procedure Code, 1973.
4. The Indian Evidence Act, 1872.
5. The Juvenile Justice (Care and Protection) Act, 2000.

B) List of Cases

 Maneka Gandhi v/s Union of India, AIR 1978, SC 597

 Bacchan v/s State of Punjab, 1980 SCC 684
 Santosh Kumar Bariyar v/s State of Maharashtra, 2009 6 SCC 498
 Amar Singh v/s State of Madhya Pradesh,1996 Cr LJ (MP) 1582
 Ramprasad v/s State of Maharashtra, 12 May, 1999

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 Memorial On Behalf Of Respondent

C) List of Websites
1. Https://en.wikipedia.org
2. Www.lawtimesjournal.in
3. Www.indiankanoon.org
4. Www.livelaw.in
5. Www.advocatekhoj.com
6. Www.thehindu.com
7. Www.legalserviceindia.com
8. Www.legalcrystal.com
9. Www.hindustantimes.com
10. Www.livemint.com
11. Www.legislative.gov.in
12. Www.law.cornell.edu
13. Www.casemine.com
14. Www.pib.gov.in
15. Www.egazette.nic.in

D) List of Books

1. M. P. Jain. (2014). Indian Constitutional Law. Delhi: lexisnexis.

2. H. M. Seervai. (2013). Indian Constitutional Law. Delhi: Universal Law Pub. Co.
3. Durga Das Basu. (2009). Constitution of India. Nagpur: lexisnexis Butterworths.
4. Batuk Lal. (2010). INDIAN PENAL CODE. Central Law Agency.
5. Prof.T.Bhattacharyya (2010). THE INDIAN PENAL CODE. Central Law Agency
6. C K Thakker Takwani. (2011). Criminal Procedure. Lexisnexis.
7. Tandon. (2014). Code of Criminal Procedure. Allahabad Law Agency.
8. Dr.V.Krishnamachari. (2011). Law of Evidence. S.Gogia & Company.

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 Memorial On Behalf Of Respondent

STATEMENT OF JURISDICTION

It is most humbly submitted that the appellant has approach this Honorable Supreme Court under
Sec. 374 of Constitution of Allahabad for challenging the action of Session Court by Criminal
appeal.

This suit has been filed as a Criminal appeal under:

S.374.Appeals from convictions-

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven years
has been passed, may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360
by any Magistrate, may appeal to the Court of Session.

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STATEMENT OF FACTS

 Case Background

 It was cold night in up 2nd January 2014 when a 21 years old young girl, namely Rina had
gone out with her friend
 After waiting for a long time for the arrival of local city bus. A luxurious tourist AC Bus
arrives, occupied by 5 men including the driver Raju, Reena and her friend quickly boarded
the bus and doers were shut immediately .
 The bus was very well equipped with all the gadgets –CCTV cameras, music system, LED’s
royal seat cushion covers, lavish curtains, dark glass windows, which moved on a different
route that what they intended to take .
 Situation incited between Rina and her friend and the four men.
 Soon after 4 men approach the two and threatened to kill and throw them off the bus if they
deny to their wishes. Her friend was hit on his head while the 3 other took her to the back
seat of the bus naked.
 They were thrown out of the bus naked.
 Later, the victim Rina was admitted to a city hospital but she succumbed to her injuries on
February,2014 but victim’s friend survived.

 Action Abetted by the 5 men

 While Rina was screaming with fear and trying to call someone they snatched the phone and
both of them with iron rods .after raping Rina, the attackers threw them out.
 They were lying in a pool of blood on the road without any clothes.
 Victim’s friend tried to get up and stop the vehicles but few saw them, stopped and left
without helping. The highway truck spotted them and called the police and they were taken
to the hospital.

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 Charge sheet filed by the police

 A charge sheet filled by the police booking all the accused for the following offences;A-
murder, B- gang rape, C- unnatural offences, D- kidnapping, E- dacoity, F-destruction of
evidence G criminal conspiracy. The men were initially charged with rape, kidnapping,
destruction of evidence and the evidence and the attempted murder of Rina and her male
companion.
 Investigating officer identifies all accused and the evidence. He also tells the court about
details of the arrest.
 Investigating officer recorded the statement of Rina and therefore considered it as a dying
declaration of the victim.
 DNA experts say clothes stained with blood which were recovered from accused exactly
matches with that of the victim city hospital UP recorded it through video-conferencing.
 They also analyzed the slides containing samples of cell and tissues of Rina

 Evidence

 Dying declaration of Rina, bus in which the incident took place; CCTV footage of the bus,
statement of Rina’s male friend; forensic and medical evidence including bloodstained
clothes of the accused DNA samples.

 Session court’s decision

 Court convicted the four by relying in the victim’s dying and forensic evidence.

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STATEMENT OF ISSUES

Issue 1:

Whether the Trial Court has the power to award Death Penalty and its Execution?

Affirmative- Yes Trial Court has the power to award death penalty and its execution.

ISSUE 2:

Whether the Dying Declaration of the victim is considered as an admissible evidence or

not?

Affirmative- Yes Dying Declaration of victim is an admissible evidence.

Issue 3:

Whether Capital Punishment is the violation of Fundamental Rights of the Appellant?

Negative- Not violation of Fundamental Right of the Appellant

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SUMMARY OF PLEADINGS

Issue 1:

Whether the Trial Court has the power to award Death Penalty and its Execution?

A- Meaning of Section 375 of Criminal Procedure Code- Rape

B- Rarest of Rare Case
C- S.28 of Criminal Procedure Code.

ISSUE 2:

Whether the Dying Declaration of the victim is considered as an admissible evidence or

not?

A- Meaning Of Dying Declaration

B- Evidentiary of dying declaration
C- Value of dying declaration

Issue 3:

Whether Capital Punishment is the violation of Fundamental Rights of the Appellant?

A- Meaning of Fundamental Rights

B- Meaning of Art. 21 of Constitution of India
C- Capital Punishment and Art. 21of Constitution of India

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ARGUMENTS ADVANCED

ISSUE 1:

Whether the Trial Court has the power to award Death Penalty and its Execution?

Affirmative- Yes Trial Court has the power to award death penalty and its execution.

(A) Meaning Of Section 375 Of Criminal Procedure Code- Rape

Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against
her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has
been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years
of age.

 It's rape if it falls under following categories:

1. Against her will.

2. Without her consent.

3. With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.

 Amendment to Section 375 of IPC:

The Criminal Law (Amendment) Act, 2013 or the Nirbhaya Act, was passed in Parliament to
amend Section 375. To remove ambiguity in the earlier law and provide for strict punishment in
cases of rarest cases of sexual violence, the legislation was expanded to define acts like
penetration of penis into vagina, urethra, anus or mouth, or any object or any part of body to any
extent into the aforesaid woman body parts (or making another person do so), as constituting an

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offence of sexual assault. Applying mouth or touching private parts were also classified as
offences of sexual assault.

 Punishment:

Except in certain aggravated situations, the punishment will be imprisonment of not less than
seven years but it may extend to imprisonment for life, and shall also be liable to fine. In
aggravated situations, punishment will be rigorous imprisonment for a term which shall not be
less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine

(B) Rearest of Rare Case:

The Doctrine of Rarest of Rare was established in the case of:

 Bacchan v/s State of Punjab, 1980 SCC 684

The Supreme Court, in this case, endeavoured to cut out a doctrine particularly for offences
culpable with death to decrease the ambiguity for courts regarding when to go for the highest
punishment of the land.

Supreme court held that this principle was laid down that death penalty must be surrounded only
in the ‘rarest of rare cases’ this means that death penalty can only be imposed on ‘rarest of rare
cases’ where an alternative option is excluded.

 Santosh Kumar Bariyar v/s State of Maharashtra, 2009 6 SCC 498

The Supreme Court held that; the rarest of rare dictum serves as a guideline in enforcing section
354(3) and establishes the policy that life imprisonment is the rule and death punishment is an
exception. Section 303 of Indian penal code mandated death penalty for all offenders serving a
life sentence. This section was strucks down as being held unconstitutional

It is humbly submits that death penalty should not be delayed after pronouncement.

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(C) S.28 of Criminal Procedure Code.

1. A High Court may pass sentence authorized by law.

2. A sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but
any sentence of death passed by any such Judge shall be subject to confirmation by the High
Court.
3. An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of
death or of imprisonment for life or of imprisonment foe a term exceeding ten years.

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Issue 2:

Whether the Dying Declaration of the victim is considered as an admissible evidence or

not?

Affirmative- Yes Dying Declaration of victim is an admissible evidence.

(A) Meaning of Dying Declaration

A dying declaration is called as '' Leterm Mortem''. The word '' Leterm Mortem'' means ''
Words said before death''. Recording of dying declaration is very important task. Utmost care is
to be taken while recording a dying declaration. If a dying declaration is recorded carefully by
the proper person, keeping in mind the essential ingredients of the dying declaration, such
declaration retains its full value.

Section 32 (1) of Indian Evidence Act.

Such statements are relevant irrespective of the person who made such declaration was expecting
death or not . Thus, it is apt to say that admissibility of Dying declaration is explained in the
section 32 (1) of Indian Evidence Act.

 A dying declaration may be in the following forms:

1. Written form;
2. Verbal form
3. Gestures and Signs form. In the case ''Queen vs Abdulla'', it was held that if the injured
person is unable to speak, he can make dying declaration by signs and gestures in response to the
question.
4. If a person is not capable of speaking or writing he can make a gesture in the form of yes or
no by nodding and even such type of dying declaration is valid.
5. It is preferred that it should be written in the vernacular which the patient understands and

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speaks.
6. A dying declaration may be in the form of narrations. In case of a dying declaration is
recorded in the form of narrations, nothing is being prompted and every thing is coming as such
from the mind of the person making it.

 Who may record dying declaration?

Any person can record dying declaration. It is not necessary that only govt employee, magistrate,
or police officer or concern person should record it.

 The Exceptions:

‘Dying declaration’ stipulate that where the statements made by dying persons are not
admissible:

1. If the cause of death of the deceased is not in question:

2. If the declarer is not a competent witness: In Amar Singh v. State of Madhya Pradesh,1996
Cr LJ (MP) 1582, it was held by M.P. High Court that without proof of mental or physical
fitness, the dying declaration was not reliable.
3. Inconsistent dying declaration is no evidentiary value.
4. Doubtful features: In Ramilaben v. State of Gujarat, 2002 AIR SC 2996 it was held by the
court that second degree burn injuries, the injured dying 7-8 hours after the incident, four dying
declarations recorded but none carried medical certificate. There were other doubtful features,
evidence not taken into account.
5. Uninfluenced declaration:

6. Untrue declaration:

7. Incomplete declaration:
9. Contradictory statements

10. Unsound person

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 Memorial On Behalf Of Respondent

It is humbly submitted before court the Hon’ble court that the statement of the of the Rina is to
be admissible as a dying declaration.

(B) Evidentiary of Dying Declaration

One of the cardinal principle of law of evidence suggests that facts must always be proved by
direct evidence. Section 60 of the evidence act, provides that oral evidence in all cases must be
direct and that hear say evidence is inadmissible due to it’s inaccurate and untrustworthy nature
it is based on the maxim nemo mariturus presumuntur mentri i.e a man will not meet his maker
with lie on his mouth

This principle has been confide section 32 of Indian evidence act and as result statement made by
a person as to the cause of his death or as any of the circumstances of the transaction which
resulted in his death are themselves relevant facts and admissible in evidence and in fact it could
from the sole basis of conviction

Conversely it is also necessary that courts ensure that the record of dying declaration is correct
and faithful. Therefore, as far as possible the dying declaration should be recorded in the manner
hereinafter prescribe, and in the event of death of the person making it, should be submitted at
the enquiry or trial

(C) Value of Dying Declaration

What is the evidentiary value of a Statement if declarant survives?

Another point of contension is when even though a dying declaration is recorded the declarent
does not end up dying.

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A statement made is only converted in dying declaration when the victim/ declarant dies. If the
declaration does nit die, then the declarent can be used a witness in the court against the accused.
It is said that dying declaration is only recorded on the presumption that the declarant is about to
die. And declarent won’t lie just before dying. But if the declarent does not die then the
statement can’t admissible as dying declaration.

 Ramprasad v/s State of Maharashtra, 12 May, 1999

It was observed by the supreme court that while making the statement, the declarent should have
been under the expectation of death and if a person making dying declaration survives, then his
statement cannot be used under section 32 of the Indian evidence act but it is a statement in term
of section 164 of crpc.

Thus. The statement becomes a dying declaration only if the victim dies.

Benefit must go to the accuse.

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Issue- 3:

Whether Capital Punishment is the violation of Fundamental Rights of the Appellant?

Negative- Not violation of Fundamental Right of the Appellant.

(A) Meaning of Fundamental Right

Fundamental Rights are those rights which are essential for intellectual, moral and spiritual
development of individuals. As these rights are fundamental or essential for existence and all-
round development of individuals, hence called as “Fundamental rights”. These are enshrined in
Part III (Article 12 to 35) of the Constitution of India. These include individual rights common to
most liberal democracies, such as equality before law, freedom of speech and expression,
religious and cultural freedom, peaceful assembly, freedom to practice religion.

 These are six fundamental rights recognized by the Indian Constitution.

1) Right to equality (Art. 14-18)
2) Right to freedom (Art. 19-22)
3) Right against exploitation (Art. 23-24)
4) Right to freedom of religion (Art. 25-28)
5) Cultural and Educational Rights (Art. 29-30)
6) Right to constitutional remedies (Art. 32-35)

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(B) Meaning of Art.21 of Constitution

 Art 21 - Protection of life and personal liberty.-

No person shall be deprived of his life or personal liberty except according to procedure
established by law.

 Maneka Gandhi vs. Union of India, AIR 1978, SC 597

Court held that Law depriving life and personal liberty must be just, fair and reasonable.
Procedure taking away life and personal liberty must be just, fair and reasonable. Also the
Supreme Court gave a new dimension to Art. 21 and held that the right to live is not merely a
physical right but includes within its ambit the right to live with human dignity.

Various rights under Art.21

 Right to life; and

 Right to personal liberty
 Right To Live with Human Dignity
 Right to Free Legal Aid & Right to Appeal
 Right to Speedy Trial
 Right to Fair Trial

(C) Capital punishment and art. 21 of Indian constitution

 Smt. Shashi v/s Union Of India,1991

Article absolutely prohibits deprivation of a person’s life, the capital punishment did not serve
any social purpose and the barbaric penalty of death should not be awarded to any person as it

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had no deterrent effect ; that the penalty of death sentence had dehumanizing effect on the close
relations of the victim andit deprived them of their fundamental right under article 21 of the
constitution, the meaningful life, that the execution of capital punishment by hanging was
barbaric and dehumanizing and it shout be substituted by some other decent and less painful
method in the executing the sentence

The capital punishment as provided by law is to be awarded in rarest of the rare cases. The
procedure established by law for awarding the death penalty is reasonable and it does not in any
way violated the mandate of article 21 of the constitution.

It is humbly submitted to Honourable court that right of life and personal liberty of the victim
(Rina) violated under art. 21

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PRAYER

Wherefore, in the light of the fact stated, issues presented, argument advanced and the authorities
cited, it is humbly prayed that Honorable Court may please:

 Dismiss the appeal seeking acquittal filed by the appellant.

 Uphold the Session Court decision and give the confirmation for the death sentence awarded
by session court.

 Any other order as the court may deem fit in the interest of justice and equity.

For this act of kindness we shall be ever grateful.

Filed on__/__/2020

Sd/_

DRAWN AND FILED BY THE COUNSELS OF THE RESPONDENT

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