In The Supreme Court of India: Yousuf Khan & Ors. (A)

KASHMIR UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2018
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IN THE SUPREME COURT OF INDIA

YOUSUF KHAN & ORS. (A)
v.
STATE OF JAMMU AND KASHMIR (R)
[Cr. App No. 221 of 2018 from High Court of Jammu and Kashmir]
Along-with
CENTRE AGAINST DEATH PENALTY, KASHMIR (P)

v.
UNION OF INDIA & ORS. (R)
[W.P. No. 08 of 2018]
FOR OFFENCES CHARGED UNDER:

S. 302 AND S. 376 OF RANBIR PENAL CODE
Counsel Appearing on Behalf of
YOUSUF KHAN & ORS.
AND
CDPK
MEMORIAL ON THE BEHALF OF APPELLANT

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TABLE OF CONTENTS
Table of Contents i
List of Abbreviations ii
Index of Authorities iii

Table of Cases iii
Books v
Websites v
Statutes vi
Statement of Jurisdiction 1
Statement of Facts 2
Issues for Consideration 5
Summary of Arguments 6
Arguments Advanced 8
Issue-I 8
Whether the trial court and the High Court of J&K were correct in finding the accused guilty of
murder?
Issue-II 15
Whether the trial court and the High Court of J&K were correct in finding accused no. 3 guilty
of rape and accused no. 1 and 2 guilty of abetment to rape?
Issue-III 17
Considering the need to re-consider Bachan Singh v. State of Punjab, whether death penalty is
constitutionally valid in the light of the same?
Issue-IV 32
Assuming that death penalty is valid, did the trail court err while giving death penalty to all the
accused in State of J&K v. Yousuf Khan & Ors.?
Prayer 33
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LIST OF ABBREVIATIONS
& And
A. Accused
AIR All India Reporter
AP Andhra Pradesh
Art. Article
Bom. Bombay
CDPK Centre Against Death Penalty, Kashmir
CJI Chief Justice of India
Cr Criminal
CriLJ/Cr LJ Criminal Law Journal
CrPC Criminal Procedure Code
Edn. / Ed. Edition
FIR First Information Report
HC High Court
Hon’ble Honourable
H.P Himachal Pradesh
IC Indian Constitution
IO Investigating Officer
IPC Indian Penal Code
J&K Jammu and Kashmir
Mad. Madras
MP Madya Pradesh
Mr. Mister
NAT Narco Analysis Test
No. Number
Ors. Others
Para. Paragraph
PIL Public Interest Litigation
RI Rigorous Imprisonment
RPC Ranbir Penal Code
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
S./Sec. Section
U.P Uttar Pradesh
UOI Union of India
v. Versus
Vol. Volume
W. Witness
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INDEX OF AUTHORITIES
Table of Cases
1. Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119
2. Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230
3. Anwar-ud-Din v. Shahkoor, 1966 Cri LJ 1270 SC
4. Ashok Debbarama v. State of Tripura, (2014) 4 SCC 747
5. Bachan Singh v. UOI, AIR 1980 SC 898
6. Banarsi Dass v State of Punjab, AIR 1981 CrlJ 1235
7. Charles Sobhraj v. Superintendent, Central Jail, Tihar, New Delhi, 1978 AIR 1514
8. Ediga Annamma v. State of Andhra Pradesh, AIR 1974 SC 799
9. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641
10. Gambir v. State of Maharashtra, AIR 1982 SC 1157
11. G. Veerabrahmam v. State Of Andhra Pradesh on 15 July, 1985
12. Horvath v. R, (1979) 44 C.C.C (2d) 385
13. Ishwar Pandurang Masram v. State of Maharashtra, 2013 CrlJ 3597
14. Jagmohan v. State, AIR 1973 SC 947
15. Janarlaldas v. State of Orissa, 1991 (3 SCC 27)
16. Khatri Hemraj v. State of Gujarat, AIR 1972 SC, 922
17. Mohammad Giasuddin v. State of A.P (1977) 3 SCC 287.
18. Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) SCALE 308
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21. Mithu v. State of Punjab, (1983) 2 SCC 277
22. Mohan Lal v. State Of UP AIR 1974 SC 1144
23. Paras Ram v. State of Punjab, (1981) 2 SCC 508
24. Parmananda Pegu v. State of Assam, (2004) 7 SCC 779
25. Ram Kumar v. State of Chhatisgarh, 2014 Cr. Law journal 2679
26. Ramakant Rai v. Madan Lal, Cr LJ 2004 SC 36
27. Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685
28. Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148, 151)
29. Sangeet v. State of Haryana, (2013) 2 SCC 452.
30. Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
31. Saraduram v State of Chhatisgarh, 2010 CrlJ 1188
32. Selvi v. State of Karnataka 2010, 7 SCC, 263.
33. Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.
34. Sharad Birdhi Chand Sarda v. State Of Maharashtra, 1984 AIR 1622, 1985 SCR (1) 88
35. Shiv Mohan Singh v. State, AIR 1977 SC 949
36. State of Bombay v. Kathi Kalu Oghad And Others, 1961 AIR 1808
37. State v. Mohd. Hussain @ Julfikar Ali, 140 (2007) DLT 428
38. State v. Mohd. Hussain @ Julfikar Ali, Sessions Case No. 79/2012, dated 04.01.2013 (Del)
39. Subash Chander v. Krishan Lal and Ors, (2001) 4 SCC 458
40. Sunil Batra v. Delhi Admn, (1978) 4 SCC 494
41. Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, 343
42. Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767
Books
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1. B.R. Sharma, Forensic Science in Criminal Investigation & Trials, 5th Ed. (2014)
2. Chief Justice M. Monir, Law of Evidence, 16th Ed. (2013) (Vol. 1 & 2)
3. Durga Das Basu, Commentary on the Constitution of India, 9th Ed. (2014)
4. Durga Das Basu, Criminal Procedure Code, 1973, 6th Ed. (2017) (Vol. 1)
5. H.L. Chowdhari’s JK Laws, 2nd Ed. (2013)
6. K.N. Chandrasekharan Pillai, General Principles of Criminal Law, 2nd Ed. (2011)
7. Nelson R.A. Indian Penal Code, 10th Ed. (2008) (Vol. 1, 3 & 4)
8. Ram Jetmalani, D.S. Chopra, The Indian Penal Code, 1st Ed. (2014) (Vol. 1)
9. Ratanlal and Dhirajlal, The Indian Penal Code, 34th Ed. (2013)
10. Ratanlal and Dhirajlal, The Law of Evidence, 24th Ed. (2016)
11. Sarkar, Law of Evidence, 13th Ed. (1990)
12. Sarkar, The Indian Penal Code, 1860, 4th Ed. (2017)
13. Sarkar, The Code of Criminal Procedure, 10th Ed. (Updated) (2014)
14. Subhash C. Gupta, Capital Punishment in India, (1986)
15. Walter P. Signorelli, Criminal Law, Procedure, and Evidence, (2011)
Websites
1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com
5. http://www.indiankanoon.org
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Statutes
1. The Code of Criminal Procedure, 1973
2. The Indian Evidence Act, 1872
3. The Indian Penal Code, 1860
4. Evidence Act, 1977 (J&K)
5. Ranbir Penal Code, 1989
6. Constitution of India, 1950
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STATEMENT OF JURISDICTION
The counsels representing the appellants have endorsed their pleadings before the Hon’ble
Supreme Court under Art. 132 (1) of the Constitution.
“Art. 132 - Appellate jurisdiction of Supreme Court in appeals from High Courts in
certain cases (1) An appeal shall lie to the Supreme Court from any judgment, decree or
final order of a High Court in the territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under Article 134A that the case involves a
substantial question of law as t the interpretation of this Constitution.”
The petitioner (CDPK) humbly submits to the jurisdiction of this Hon’ble Supreme Court under
Article 32 of the Constitution in apprehension of the violation of right to life that inevitably
would occur should the death penalty sentence not declared unconstitutional.
“Art. 32 - Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.”
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STATEMENT OF FACTS
1. Sabz Afridi, a gatekeeper and son of a local shopkeeper, Gulzari Ahmed, and Seema Khan,
daughter of a police officer Yousuf Khan, resided in the same colony of Lal Bazar. They
wanted to marry each other but Seema’s family was against the same so they eloped on 10
January 2013 and got married the next day.
2. On 12 January 2013, Seema’s father, Yousuf Khan, while talking to some locals, used
abusive language against Sabz and his family and he and his son, Younis Khan (Seema’s
brother Accused 2) went to Sabz’s house, abused his parents and also beat up Sabz’s younger
brother and even used his connections in the police department to harass them. Later that
day, Mr. Inzimam (Witness.1) also overheard them about killing someone.
3. After marriage, the couple lived with Sabz’s uncle Babar Afridi in Rajbagh where Seema’s
relatives were also living. They started to run a medicine shop where Seema used to sit and
Sabz used to join her after coming from his job.
4. On 12 March 2013 at 6:30 p.m, some unidentified men came to the shop, broke the windows,
beat the couple and took away most of the medicine. Imam Sula Baba (W. 2) saw the car
bearing no. JK01AB-9K9K (registered under Yousuf Khan’s name) leaving the locality at 9
pm in the evening.
5. On 13 March 2013, Sabz filed an F.I.R. against Yousuf Khan but police found that Yousuf
Khan was not in town on the day the incident occurred and file was closed due to non-
availability of suspect names.
6. On 11 October 2013, the victims didn’t return home. So Babar Afridi filed an F.I.R. against
the same. The police traced Sabz’s cellphone near Hazratbal.
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7. Two days later, Nazim Shah from Hazratbal found two bodies on the banks of river Nigeen.
He informed police about it. The police identified the bodies as that of Sabz and Seema.
Subsequently an F.I.R. was lodged.
8. After the preliminary investigation by the investigating officer, F.I.R. was amended and
Yousuf Khan, Younis Khan, Nabi Shafi (Yousuf Khan’s bodyguard), Mohammad Sami
(Yousuf Khan’s servant) were named as prime suspects. The police also found a local made
pistol from the servant quarter and some bloody clothes in Yousuf Khan’s house.
9. The suspects were kept in police custody for 14 days so that IO would be able to investigate.
10. The post mortem report on Sabz’s body concluded that he had suffered a lot of injuries
before death while Seema’s post mortem report showed that she could have been raped
before death.
11. After completion of investigation, the final report was submitted before the court. The report
named Yousuf Khan (A.1), Younis Khan (A.2), Nabi Shafi(A.3) and Mohd. Shami (A.4) as
the accused. They were charged under Sec 302 and 375 of RPC.
12. During trial, A.4 had confessed to the crime in police station. Shami voluntarily took NAT
(in the absence of lawyer) and repeated the same statement as given to the police. The
prosecution inform court that A.4 wanted to make a confession before court. However, when
produced before the court, he turned hostile and stated that the statement to police was given
under compulsion. Also, NAT was not admissible. After considering the evidences and
statements of witnesses, court found all accused guilty of murder and A.3 guilty of rape.
Court relied on the confession made by A.4 because the same was corroborated by NAT.
The court sentenced all the accused to death who then preferred an appeal against the same to
the High Court of J & K. High Court upholding the decision of trial court confirmed death
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sentence. The accused have now appealed to the Supreme Court of India which has agreed to
hear the appeal under Cr.App. No 221 of 2018.
13. CDPK, on 14-05-2018, filed a P.I.L.(W.P.No. 08 of 2018) in the High Court of J & K
challenging the constitutionality of death penalty. They argued that the case of Bachan Singh
v. State of Punjab was decided long back and a lot of things have changed since then. They
relied on the 2016 Death Penalty Report of NLU, Delhi and Reports of Law Commission of
India to highlight the inhumane treatment and ineffective representation that death penalty
convicts receive. Agreeing with CDPK that Bachan Singh v. State of Punjab needs to be
reconsidered and the matter of death penalty revisited by the SC, the HC of J&K allowed
CDPK to withdraw writ petition and file that in SC.
14. Realizing that outcome of the appeal depends upon the challenge raised against death penalty
in W.P.No. 08 of 2018. The CJI clubbing the two cases placed it up for consideration before
the appropriate bench.
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ISSUES FOR CONSIDERATION
Issue-I - Whether the trial court and the High Court of J&K were correct in finding the accused
guilty of murder?
Issue-II - Whether the trial court and the High Court of J&K were correct in finding accused no.
3 guilty of rape and accused no. 1 and 2 guilty of abetment to rape?
Issue-III - Considering the need to re-consider Bachan Singh v. State of Punjab, whether death
penalty is constitutionally valid in the light of the same?
Issue-IV - Assuming that death penalty is valid, did the trail court err while giving death penalty
to all the accused in State of J&K v. Yousuf Khan & Ors.?
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SUMMARY OF ARGUMENTS
Issue-I - Whether the trial court and the High Court of J&K were correct in finding the accused
guilty of murder?
Because of the lack of evidences, they cannot be tried under Sec 302 of R.P.C. and thus the trial
court and the High Court were not correct in finding the accused guilty of murder.
Issue-II - Whether the trial court and the High Court of J&K were correct in finding accused no.
3 guilty of rape and accused no. 1 and 2 guilty of abetment to rape?
Due to the lacunas in the forensic report and especially absence of DNA report and also due to
the lack of any concrete evidences, it cannot be concluded that A. 3 has committed the offence of
rape. Thus the trial court and the High Court were not correct in finding the A.3 guilty of rape.
Also due to the lack of direct evidences and breaking of chain of circumstantial evidences, it can
be argued that trial court and the High Court made a mistake by holding A.1 and 2 guilty of
abetment to rape.
Issue-III - Considering the need to re-consider Bachan Singh v. State of Punjab, whether death
penalty is constitutionally valid in the light of the same?
Taking into account the arbitrary and discriminatory act of imposing death penalty and various
rights violated by such imposition, it can be argued that death penalty is constitutionally invalid
and that the case of Bachan Singh v. State of Punjab1 needs to be reconsidered.
1
AIR 1980 SC 898.
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Issue-IV - Assuming that death penalty is valid, did the trail court err while giving death penalty
to all the accused in State of J&K v. Yousuf Khan & Ors.?
In the arguments in Issue No.1, it has already been stated before this Hon’ble court that accused
are not guilty of murder. In the light of same arguments it is humbly pleaded before the Hon’ble
court that there is no point to go into the question whether trial court was right or wrong in
giving death penalty to the accused. Respondent directly pleads before this Hon’ble court that
accused were not guilty of murder.
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ARGUMENTS ADVANCED
It is humbly submitted before the Hon’ble Supreme Court that Yousuf Khan (Accused 1),
Younis Khan (Accused 2), Nabi Shafi (Accused 3) and Mohd. Shami (Accused 4) are not guilty
of offences under S.300, S.375, and S.111 of RPC. In the matter before court it has been
wrongfully contended that accused 1, 2, 3 and 4 have committed murder, accused 3 has
committed rape and accused 1 & 2 are guilty for abetment to rape. The murder will be disproved
in Issue no. 1, rape and abetment will be disproved in Issue no. 2, constitutionality of death
penalty will be dealt with in Issue no. 3, and Issue no. 4 will be dealing with whether the trial
court err while giving death penalty to all the accused in State of J&K v. Yousuf Khan & Ors.
ISSUE NO. 1 - Whether the trial court and High Court of J&K were correct in finding the
accused guilty of murder?
It’s humbly pleaded before this Hon’ble Supreme Court of India that accused are not guilty of
murder considering that accused 4 has confessed in police station because (1.1) narco-analysis
test is not admissible, (1.2) circumstantial evidences are not reliable, and (1.3) guilt could not be
established beyond reasonable doubt.
1.1 Confession Is Inadmissible
As per Sec 25 of Evidence Act, 1977 (J&K) - ‘no confession made to a police officer shall be
proved as against a person accused of any offence’.2 It is further supported by Sec 26 of this
2
Sec. 25 of JK Evidence Act, 1977.
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same Act, ‘no confession made by any person whilst he is in the custody of police officer unless
it be made in the immediate presence of magistrate shall be proved as against such person’.3
Confession of accused recorded by the police officer is of no avail against the co-accused or
against each other. Such confession cannot be taken into consideration by the court under S.30 of
the Evidence Act, 19774 because of the mandate given under S. 25 and S. 26 of this Act.
Confession given in police station is not admissible as evidence. There is a wide-spread and
rampant practice in the police to use third degree methods for extracting confessions from the
alleged accused. The object of incorporating these sections in JK Evidence Act, 1977 is to ensure
that the person accused of the offence would not be induced by threat, coercion or force to make
a confessional statement as the police officers would make every effort to collect the evidence in
the hope of gaining credit by securing convictions. A confession to a police officer, whether in
the course of investigation or otherwise, and confession while in police custody are
inadmissible.5
Therefore it is well settled principle of law that any confessional statement given by accused
before police is inadmissible as evidence and cannot be brought on record by the prosecution and
is insufficient to convict the accused6.
3
Sec. 26 of JK Evidence Act, 1977.
4
Consideration of proved confession affecting person making it and others jointly under trial for same offence -
When more persons than one are being tried jointly for the same offence, and a confession made by one of such
persons affecting himself and some other of such persons is proved, the Court may take into consideration such
confession as against such other person as well as against the person makes such confession.
5
Aghnoo Nagesia v. State of Bihar [AIR 1966 SC 119]. Followed in Khatri Hemraj v State of Gujarat AIR 1972
SC,922; Banarsi Dass v State of Punjab AIR 1981 CrlJ 1235; Saraduram v State of chhatisgarh 2010 CrlJ 1188;
Ishwar Pandurang masram v State of Maharashtra 2013 CrlJ 3597
6
Ram Kumar v State of Chhatisgarh 2014 Cr. Law journal 2679
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Thus, in the present matter, confessional statement made by Accused no. 4 before the police is
inadmissible and unreliable in terms of Section 25 and 26 of JK Evidence Act, 1977.
1.2 Narco Analysis Test Is Not Admissible
This test involves the intravenous administration of a drug that causes the subject to enter into a
hypnotic trans. Since a person subjected to the narco-analysis test is in a half conscious state and
loses awareness of time and place, this condition can be compared to that of a person who is in a
hypnotic state. “Statements made in a hypnotic state were not voluntary and hence they cannot
be admitted as evidence.”7 In the concurring judgment, Beetz J. has observed that:
“I refrain from commenting on such practices, short of noting that even the consensual
use of hypnosis and narco analysis for evidentiary purposes may present problems.
Under normal police interrogation, a suspect has the opportunity to renew or deny his
consent to answer each question, which is no longer the case once he is, although by
consent, in a state of hypnosis or under the influence of a `truth serum'.”
This case clearly indicates that confession made even in a voluntary Narco Analysis Test is
against self-incrimination and thereby violative of Art 20 (3) of Indian Constitution.8
In Selvi v. State of Karnataka9, while addressing to the question whether the results derived
from impugned techniques amounts to testimonial compulsion thereby attracting the bar of Art
20(3), the SC observed:
7
Horvath v. R [(1979) 44 C.C.C (2d) 385].
8
Art. 20 (3) of IC - No person accused of any offence shall be compelled to be a witness against himself.
9
2010, 7 SCC, 263.
10
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“It is quite evident that the narco analysis technique involves a testimonial act. A subject
is encouraged to speak in a drug-induced state, and there is no reason why such an act
should be treated any differently from verbal answers during an ordinary interrogation.
In one of the impugned judgments the compulsory administration of the narco analysis
technique was defended on the ground that at the time of conducting the test, it is not
known whether the results will eventually prove to be inculpatory or exculpatory. We
have already rejected this reasoning. We see no other obstruction to the proposition that
the compulsory administration of the narco analysis technique amounts to `testimonial
compulsion' and thereby triggers the protection of Article 20 (3).” 10
In the same case SC laid down certain guidelines to be followed for conducting Narco Analysis
Test. Some of the guidelines to be strictly adhered to while conducting NAT are laid down
below:
i. If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer,
and the physical, emotional and legal implication of such a test should be explained to
him by the police and his lawyer.
ii. The consent should be recorded before a Judicial Magistrate.
In the present matter before the Hon’ble SC, the guidelines given by Apex court in Selvi’s case 11
have not been properly followed. It was strictly mentioned in the guidelines by the court that
NAT must be done in the presence of lawyer but in the instant case, accused was not given
access to lawyer. Hence the results of NAT can’t be relied upon and can’t be used against the
accused.
10
Selvi & Ors v. State Of Karnataka (2010, 7SCC, 263), para. 130.
11
Selvi & Ors v. State Of Karnataka 2010, 7SCC, 263
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At the time accused made his statement, he already stood in the character of accused and it has
been held that if a person already stands in the character of an accused person at the time he
made a statement then prohibition of Article 20 (3) of IC applies. 12
1.3 Circumstantial Evidence Is Unreliable
It is a well settled principle that where the case is mainly based on circumstantial evidence the
court must satisfy itself that various circumstances in the chain of evidence should be established
clearly and that the completed chain must be such as to rule out innocence of the accused. 13
When even a link breaks away the chain of circumstances gets snapped and other circumstances
cannot in any manner establish the guilt of the accused beyond all reasonable doubt.14
The present matter before court is a case of circumstantial evidence. There is no direct evidence
in the sense of eye-witness account to connect the accused with the crime in question. The law is
well settled that the conviction of an accused solely on circumstantial evidence can only be
based, if all the circumstances are proved, and the chain of circumstances so proved is of
conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the
one proposed to be proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the innocence of the
accused.15 The SC has indicated that the circumstances concerned “must or should” and not “may
be” established.16
12
The State Of Bombay v. Kathi Kalu Oghad And Others, 1961 AIR 1808.
13
Mohan Lal v. State Of UP AIR 1974 SC 1144.
14
Janarlaldas v. State of Orissa 1991 (3 SCC 27).
15
G. Veerabrahmam v. State Of Andhra Pradesh on 15 July, 1985.
16
Sharad Birdhi Chand Sarda v. State Of Maharashtra [1984 AIR 1622, 1985 SCR (1)88].
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In the instant case the prosecution fails to fully establish the chain of evidences from the facts
which could fully establish the guilt of accused beyond any reasonable doubt. It can be shown
from the following facts:
a. Statement of Witness 2 (Imam Sula Baba)
Incident on 12 March happened at 6:30 pm while Sula Baba saw a car leaving Rajbagh
locality at 9 pm. There may be a presumption that the accused are behind such incident but
presumption is considered as a very weak form of evidence which is on a very low footing.
There might be suspicion against but suspicion cannot take the place of evidence. 17
Furthermore, any person who does some illegal act would escape as soon as possible but here
Sula Baba saw the car belonging to Yousuf Khan (A. 1) after 2.5 hours of the incident which
leaves a reasonable doubt and the benefit of that doubt should go in favor of accused.
b. Ballistic report is inconclusive
Although when bullets from the gun (found in servant’s quarter) were compared with the
bullets recovered from the bodies of victims, it was found that bullets were of the same shape
and model but there was no conclusive way of determining that they were discharged from
the same weapon. So without any convincing proof that bullets were discharged from same
weapon mere recovery of gun will not in any way held the respondent responsible. 18 It again
leaves doubt in favor of the accused.
c. Statement of W. 3 (Mr. Juni Ahmed)
17
Gambir v. State of Maharashtra (AIR 1982 SC 1157).
18
Anwar-ud-Din v. Shahkoor 1966 Cri LJ 1270 SC.
13
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W. 3 saw two people coming out of a car with a bag which they dropped into the river.
However he is not sure about the description of the car. He merely believes that a Scorpio
was either black or grey in colour. He, because of myopia, was not even able to see the car
number. This statement cannot establish guilt of accused beyond reasonable doubt whose
favour should be given to the accused.
1.4 Reasonable Doubt
In light of all aforementioned arguments, the appellant humbly submits that there exists
reasonable doubt and hence all the accused should be acquitted of the alleged crime. A
reasonable doubt must not be imaginary, trivial or merely possible doubt but a fair doubt based
upon reason and common sense arising out of the evidence of the case.19
Firstly, I submit that in the instant case NAT is inadmissible. Secondly, for the sake of argument
if it is assumed, though not admitted that the confession made by A. 4 is admissible there is a
common sense error in the statement given by him under NAT.
 According to him on 11-10-2013 he and A. 3 took the victims in the car at 6 p.m. and they
reached at Bagh-e-Ali-Mardaan Khan Industrial Complex at 10 p.m. which means that it took
them 4 hours to reach the complex while if we look into the real distance between the two
spots its only 7.5 kms20. Keeping traffic jam too in view it will take more or less hardly
40mins to reach the destination. It is illogical to rely on this statement.
 According to him on 13-10-2013 they left for Nigeen Lake from their home (Lal Bazaar) at
around 2 p.m. and reached the lake by 5:30 p.m. which means it took them around 3 hours to
19
Ramakant Rai v. Madan Lal Cr LJ 2004 SC 36.
20
Data collected from Google Maps.
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reach there while the distance is of ~5kms. And again it will take hardly 15mins to reach
there.21
The respondent’s arguments are leaning towards the fact that crime may have been committed by
the accused however they have failed to make the link between ‘may have committed’ and ‘must
have committed’ and the gap must be filled by the respondent by the legal, logical, reliable and
unimpeachable evidence before a conviction can be sustained. 22
ISSUE NO. 2 – Whether the trial court and the High Court of J&K were correct in finding
accused 3 guilty of rape and accused no. 1 & 2 guilty of abetment to rape.
It is humbly contended before this Hon’ble SC that A. 3 has not committed the offence of rape
and A. 1 & 2 have not abetted the commission of rape.
There is no concrete evidence which could prove that A. 3 has committed the crime. The
investigation officer has failed to do the proper investigation of this matter and has not
investigated many things which are important to determine whether accused has committed rape
or not.
2.1 Investigating officers have failed to conduct the DNA profiling test.
Investigator must collect all the evidentiary clues with the help of the doctor including the
following:
a. Vaginal secretions and swabs for semen.
b. Foreign hairs and fibres on the person of the victim.

21
Supra 19.
22
I, NELSON Indian Penal Code p. 2905 10 Edition 2008.
15
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c. Specimen pubic hairs from the victim.
d. Semen stains from the body.
e. Fingernail scraping which may carry fibres, hairs, skin, blood from the culprit. The
evidence can link the culprit, with the victim and hence with the crime.
f. All clothes of the victim wore at the time of occurrence. They carry semen, fibres and
hair, blood stains, saliva stain from the culprit. They also indicate the extent of bleeding.
g. Clues like stains, injuries and trace evidence on the person of the culprit are collected by
the medico legal expert on the same pattern as in the case of the victim.
h. The forensic experts have a definite role to play in the investigations of sexual assaults in
establishing chain of evidence by corroborative medical evidence and analysis of the
trace evidence results from forensic science laboratory, thus making conclusion more
easy and possible by investigating authorities. The investing officer failed to give any
conclusive proof or even in postmortem report whether sexual intercourse was
consensual or not.
2.2 Collecting the perpetrators DNA as early as possible is crucial to increase chances of
identification of the person who committed the assault. And clearly from the instant case before
the court postmortem report is silent on the fact whether such things have been done or not,
leaving benefit of doubt in favor of accused.
ISSUE NO. 3 - Considering the need to re-consider Bachan Singh v. State of Punjab,
whether death penalty is constitutionally valid in the light of the same.
16
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With life imprisonment extending to the convict’s full natural life at the option of the state, and
death sentence serving no additional purpose, it’s time to reconsider a practice abolished by 66%
of the countries.
The 35th Law Report (“Capital Punishment”, 1967), recommended the retention of the death
penalty in India. The Supreme Court has also, in Bachan Singh v. UOI23, upheld the
constitutionality of the death penalty, but confined its application to the ‘rarest of rare cases’, to
reduce the arbitrariness of the penalty. However, the social, economic and cultural contexts of
the country have changed drastically since the 35th report. Further, arbitrariness has remained a
major concern in the adjudication of death penalty cases in the 35 years since the foremost
precedent on the issue was laid down.
3.1 Pre-Constitutional History and Constituent Assembly Debates
3.1.1 An early attempt at abolition of the death penalty took place in pre-independent India,
when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the death penalty for IPC
offences in 1931. However, this was defeated. Around the same time, in March 1931, following
the execution of Bhagat Singh, Sukhdev and Rajguru by the British government, the Congress
moved a resolution in its Karachi session, which included a demand for the abolition of the death
penalty.
3.1.2 India’s Constituent Assembly Debates between 1947 and 1949 also raised questions around
the judge-centric nature of the death penalty, arbitrariness in imposition, its discriminatory
impact on people living in poverty, and the possibility of error.
23
AIR 1980 SC 898
17
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3.1.3 Dr. Ambedkar was personally in favour of abolition. "...I would much rather support the
abolition of the death sentence itself. That, I think, is the proper course to follow, so that it will
end this controversy. After all, this country by and large believe in the principle of non-
violence." However, he suggested that the issue of the desirability of the death penalty be left to
the Parliament to legislate on. This suggestion was eventually followed.
3.2 Legislative Backdrop
3.2.1 For offences where the death penalty was an option, Section 367(5) of the CrPC 1898
required courts to record reasons where the court decided not to impose a sentence of death. If
the accused is convicted of an offence punishable with death, and the court sentences him to any
punishment other than death, the court shall in its judgment state the reason why sentence of
death was not passed.
3.2.2 In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering the
position of the death sentence. The death penalty was no longer the norm, and courts did not
need special reasons for why they were not imposing the death penalty in cases where it was a
prescribed punishment.
3.2.3 The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several changes
were made, notably to Section 354(3).When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death,
the special reasons for such sentence.
3.2.4 This was a significant modification from the situation following the 1955 amendment
(where terms of imprisonment and the death penalty were equal possibilities in a capital case),
18
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and a reversal of the position under the 1898 law (where death sentence was the norm and
reasons had to be recorded if any other punishment was imposed). Now, judges needed to
provide special reasons for why they imposed the death sentence.
3.2.5 The 35th Report of the Law Commission (Fourth Law Commission) (1967) said, "Having
regard, however, to the conditions in India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country, to the vastness
of its area, to the diversity of its population and to the paramount need for maintaining law and
order in the country at the present juncture, India cannot risk the experiment of abolition of
capital punishment".
3.2.6 On 18-12-2007, the United Nations General Assembly adopted Resolution 62/149 calling
upon countries that retain the death penalty to establish a worldwide moratorium on executions
with a view to abolishing the death penalty. India was, however, one of the 59 nations that retain
the death penalty.
3.2.7 In Bachan Singh24 case, the Court adopted the ‘rarest of rare’ guideline for the imposition
of the death penalty, saying that reasons to impose or not impose the death penalty must include
the circumstances of the crime and the criminal. Justice Bhagwati in his dissenting opinion found
the death penalty necessarily arbitrary, discriminatory and capricious. He reasoned that “the
death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and
deprived sections of the community and the rich and the affluent usually escape, from its
clutches. This circumstance also adds to the arbitrary and capricious nature of the death penalty
and renders it unconstitutional as being violative of Articles 14 and 21.”
24
Bachan Singh v. State Of Punjab (AIR 1980 SC 898)
19
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3.2.8 In the past few years, attention has also been drawn to the arbitrary application of the
Bachan Singh framework by courts as also to the possibility of judicial error in cases where the
death sentence has been imposed. The Supreme Court in Aloke Nath Dutta v. State of West
Bengal25, Swamy Shraddhananda v. State of Karnataka26, Santosh Bariyar v. State of
Maharashtra27, and Farooq Abdul Gafur v. State of Maharashtra28, amongst other cases, has
noticed that sentencing in capital cases has become arbitrary and that the sentencing law of
Bachan Singh has been interpreted in varied ways by different Benches of the Court.
3.2.9 In the case of Mithu v. State of Punjab29, the Supreme Court was confronted with the
mandatory sentence of death enacted in Section 303 of the IPC. The Court held that the
mandatory death sentence was unconstitutional, stating: “A standardized mandatory sentence,
and that too in the form of a sentence of death, fails to take into account the facts and
circumstances of each particular case. It is those facts and circumstances which constitute a safe
guideline for determining the question of sentence in each individual case.”30
3.2.10 The Court noted that: “It is because the death sentence has been made mandatory by
section 303 of IPC in regard to a particular class of persons that, as a necessary consequence,
they are deprived of the opportunity under section 235(2) of the Criminal Procedure Code to
show cause why they should not be sentenced to death and the Court is relieved from its
obligation under section 354(3) of that Code to state the special reasons for imposing the
25
(2007) 12 SCC 230.
26
(2008) 13 SCC 767.
27
(2009) 6 SCC 498.
28
(2010) 14 SCC 641.
29
(1983) 2 SCC 277.
30
Mithu v. State of Punjab, (1983) 2 SCC 277, at para 16.
20
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sentence of death. The deprivation of these rights and safeguards which is bound to result in
injustice is harsh, arbitrary and unjust.”31
3.2.11 Recent expansions of the scope of the death penalty for example, passed in 2013, the
Criminal Law (Amendment) Act introduced several new provisions into the IPC, including
Section 376A, which allowed for the death penalty to be imposed in cases where rape led to the
death of the victim, or left her in a persistent vegetative state; and 376E which allowed for the
imposition of the death penalty for certain repeat offenders. These amendments were passed in
the wake of the recommendations of the Verma Committee. 32 Pertinently, while the Verma
Committee was in favour of enhanced punishment for certain forms of sexual assault and rape, it
noted that “in the larger interests of society, and having regard to the current thinking in favour
of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness,
we are not inclined to recommend the death penalty.”33 The Criminal Law (Amendment) Act,
2013, nevertheless expanded the scope of the death penalty.
3.3 Bills proposing abolition of the death penalty
3.3.1 Before independence, Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the
death penalty for IPC offences in 1931, which was defeated. 34 Since independence, M.A.
Cazmi’s Bill to amend Sec. 302 IPC in 1952 and 1954, MukundLal Agrawal’s Bill in 1956,
Prithviraj Kapoor's resolution in the RajyaSabha in 1958 and Savitri Devi Nigam’s 1961
31
Mithu v. State of Punjab, (1983) 2 SCC 277, at para 18.
32
See Verma Committee Report, 2013.
33
See Verma Committee Report, 2013, at page 246.
34
Law Commission of India, 35th Report, 1967, at para 12.
21
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resolution had all sought to abolish the death penalty.35 In 1962, Shri Raghunath Singh’s
resolution for abolition of the death penalty was discussed in the LokSabha, and following this
the matter was referred to the Law Commission, resulting in the 35th Commission Report.36
3.3.2 At present, two bills moved by RajyaSabha Members of Parliament are relevant to the
issue. Kanimozhi has moved a Private Member’s Bill demanding the abolition of the death
penalty,37 and D. Raja has moved a Private Member’s Bill asking the Government to declare a
moratorium on death sentences pending the abolition of the death penalty.38
3.4. International Trends and Deterrence
3.4.1 In 1967, when the 35th Report was presented, only 12 countries had abolished capital
punishment for all crimes in all circumstances. 39 Today, 140 countries have abolished the death
penalty in law or in practice. Further, the number of countries that have remained “active
retentionists”, namely they have executed at least one person in the last ten years, has fallen from
51 in 2007 to 39 (as of April 2014). 40 A category of countries have also abolished death penalty
for ordinary crimes such as murder and retained it for exceptional crimes such as crimes under
35
See Law Commission of India, 35th Report, 1967, at para 15-18.
36
See Law Commission of India, 35th Report, 1967, at para 1.
37
Special Correspondent, Kanimozhi to move Bill to abolish death penalty, The Hindu, July 31 2015.
38
IANS, Death penalty: CPI leader D Raja moves private member's resolution, Economic Times, 31 July, 2015.
39
Columbia (1910), Costa Rica (1877), Dominican Republic (1966), Ecuador (1906), Federal Republic of Germany
(1949), Honduras (1956), Iceland (1928), Monaco (1962), Panama (1922), San Marino (1865), Uruguay (1907),
Venezuela (1863). See Law Commission of India, 35th Report, 1967.
ROGER HOOD AND CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 5 (5th
40
ed. 2015).
22
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military law or under exceptional circumstances. 41 The death penalty is most prominently used in
Iran, China, Pakistan, and Saudi Arabia.
3.4.2 Capital punishment is the subject of discussion not only at national level but also at
international level. The Universal Declaration of Human Rights was adopted by the General
Assembly in its Resolution 217-A (III) of 10th Dec 1948. Art. 3 and 5 of Declaration provides:
Art. 3 – Everyone has the Right to Life, Liberty and Security of Person.
Art. 5 – No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.
3.4.3 Art. 6 of the International Convenient on Civil and Political Rights, as finally adopted by
the General Assembly in its resolution 2200 (XXI) of 16th Dec, 1996 as follows:
1. Every human being has an inherent right to life. This right shall be protected. No one
shall be arbitrarily deprived of his life.
2. Anyone sentenced to death shall have the right to seek pardon or commutation of the
sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all
cases.
3.4.4 In Bachan Singh v. State of Punjab,42 the Supreme Court observed that in most countries of
the world, including in India, a “large segment of the population, including notable penologists,
judges, jurists, legislators, and other enlightened people” still believe that the death penalty
41
Supra 38.
42
(1980) 2 SCC 684.
23
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serves as a greater deterrent than life imprisonment. 43 The Court noted various cases where it had
recognized the deterrent value of the death penalty.44
The court in many cases doubted the efficiently of deterrence and also held that deterrence is not
the primary justification for imposition of death penalty.45
3.4.5 To review Ehrlich’s study (Study by Isaac Ehrlich, which was published in 1975, in which
Ehrlich found a “unique deterrent effect” of executions on murders) and other studies which
linked deterrence with the death penalty, a Panel was set up by the National Academy of
Sciences in the United States, chaired by (Nobel Laureate) Lawrence Klien. In its Report,
submitted in 1978, the Panel concluded that “the available studies provide no useful evidence on
the deterrent effect of capital punishment” and “research on the deterrent effects of capital
sanctions is not likely to provide results that will or should have much influence on policy
makers.”46
3.4.6 United Nations has consistently held that there is no conclusive evidence on deterrence and
the death penalty, in Resolutions on the Moratorium on the Use of the Death Penalty of 2008,
2010, 2013 and 2015.47 Further, the UN, in Reports published as recently as 2014 has noted that
43
(1980) 2 SCC 684, 713.
The Court refers to Paras Ram v. State of Punjab, (1981) 2 SCC 508, Jagmohan v. State, AIR 1973 SC 947,
44
EdigaAnnamma v. State of Andhra Pradesh AIR 1974 SC 799, Shiv Mohan Singh v. State AIR 1977 SC 949,
Charles Sobhraj v. Superintendent, Central Jail, Tihar, New Delhi, 1978 AIR 1514.
See: SushilMurmu v. State of Jharkhand [(2004) 2 SCC 338, 343], RavindraTrimbakChouthmal v. State of
45
Maharashtra, [(1996) 4 SCC 148, 151)].

46
Lawrence R. Klein, Brian Forst & Victor Filatov, The Deterrent Effect of CapitalPunishment: An Assessment of
the Estimates, in Alfred Blumstein, Jacqueline Cohen and Daniel Nagin (eds.), DETERRENCE AND
INCAPACITATION: ESTIMATING THE EFFECTS OF CRIMINAL SANCTIONS ON CRIME RATES, National
Academy of the Sciences, Washington D.C. (1978). See also: l S. NAGIN AND JOHN V. PEPPER (EDS.),
DETERRENCE AND THE DEATH PENALTY, COMMITTEE ON DETERRENCE AND THE DEATH
PENALTY (COMMITTEE ON LAW AND JUSTICE), NATIONAL RESEARCH COUNCIL (2012).
24
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no evidence of deterrence can be presumed to exist. 48 The UN has also noted that deterrence is
nothing more than a “myth.”49
3.4.7 Further, the Constitutional Court of South Africa ruling on the deterrence argument, The
State v. Makwanyane and Machunu,50 ruled: “It was accepted by the Attorney General that
[deterrence] is a much disputed issue in the literature on the death sentence. He contended that
it is common sense that the most feared penalty will provide the greatest deterrent, but accepted
that there is no proof that the death sentence is in fact a greater deterrent than life imprisonment
for a long period…”
3.5. Incapacitation and Rehabilitation
3.5.1 To be able to use the incapacitation rationale, it is essential that the sentencing court make
an assessment of “dangerousness” of the offender and the possibility that the person is likely to
reoffend.
3.5.2 The primary objection to executing a person on grounds of incapacitation is the
predictability problem. Theorists have argued that it is virtually impossible to be able to predict if
the convicted offender is likely to reoffend. 51 Capital punishment is the most extreme form of
47
See Resolutions on the Moratorium on the Use of the Death Penalty: Resolution 62/149 (2008), Resolution 65/206
(2010) and Resolution 67/176 (2013) and Resolution 69/186, (2015). It is important to note that India is not a
signatory to these Resolutions.
Moving away from the Death Penalty: Lessons from South-East Asia, United Nations Human Rights
48
Commission10 (2014).
Carolyn Hoyle and Roger Hood, The Myth of Deterrence in MOVING AWAY FROM THE DEATH PENALTY:
49
ARGUMENTS, TRENDS AND PERSPECTIVES, United Nations Human Rights Office of the High
Commissioner, 74-83 (2014).
50
Case No. CCT/3/94, Constitutional Court of the Republic Of South Africa.
Sara F. Werboff, Halting the Sudden Descent into Brutality How Kennedy v. Louisiana Presents a More Restrained
51
Death Penalty Jurisprudence, 14 LEWIS & CLARK L. REV. 1601, 1639 (2010).
25
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incapacitation, since it implies taking the life of the offender to ensure that he/she does not
reoffend.
3.5.3 The court in Sunil Batra v. DelhiAdministrationalson52 referred to Mohammad Giasuddin
v. State of A.P,53 where it had held that the modern community has a primary stake in
reformation of the offender, and the focus should be therapeutic rather than an “in terrorem”
outlook.54 The Court observed: “The whole man is a healthy man and every man is born good.
Criminality is a curable deviance.... Our prisons should be correctional houses, not cruel iron
aching the soul...We make these persistent observations only to drive home the imperative of
Freedom — that its deprivation, by the State, is validated only by a plan to make the sentences
more worthy of that birth right.”55
3.5.4 In Bachan Singh v. State of Punjab,56 the Supreme Court held that rehabilitation is an
express sentencing goal, and must never be ignored especially in the death penalty context. It
held that the death penalty should not be imposed “save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.”57
3.6. Sentencing in Capital Offences
3.6.1 Implementation of the Bachan Singh Framework
52
Sunil Batra v. Delhi Admn. (1978) 4 SCC 494.
53
1977) 3 SCC 287.
54
See Giasuddin,(1977) 3 SCC 287, at para 8.
55
See Giasuddin,(1977) 3 SCC 287, at paras 24-25.
56
(1980) 2 SCC 684.
57
Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.
26
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3.6.1.1 Despite the Court’s optimism in Bachan Singh that its guidelines will minimise the risk
of arbitrary imposition of the death penalty, in the last decade itself, in cases like AlokeNath
Dutta v. State of West Bengal,58SwamyShraddhananda v. State of Karnataka,59 Santosh Bariyar
v. State of Maharashtra,60Mohd. Farooq Abdul Gafur v. State of Maharashtra,61Sangeet v. State of
Haryana,62 Shankar Khade v. State of Maharashtra,63 and Ashok Debbarma v. State of Tripura,64
the Supreme Court has acknowledged that the application of the death penalty is subjective and
arbitrary and that “even though Bachan Singh intended “principled sentencing”, sentencing has
now really become judge- centric…”65 Thus, “the confirmation of death sentence or its
commutation by this Court depends a good deal on the personal predilection of the judges
constituting the Bench.”66 Recognizing this to be a “serious admission” 67 on its part, the Court in
Santosh Bariyar admitted that “there is inconsistency in how Bachan Singh has been
implemented, as Bachan Singh mandated principled sentencing and not judge centric
sentencing.”68
58
AlokeNath Dutta v. State of West Bengal, (2007) 12 SCC 230.
59
SwamyShraddananda (2) v. State of Karnataka, (2008) 13 SCC 767.
60
Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
61
Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.
62
Sangeet v. State of Haryana, (2013) 2 SCC 452.
63
Shankar KisanraoKhade v. State of Maharashtra, (2013) 5 SCC 546.
64
Ashok Debbarama v. State of Tripura, (2014) 4 SCC 747 (“Arbitrariness, discrimination and inconsistency often
loom large, when we analyze some of judicial pronouncements awarding sentence”).
65
Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 33.
66
Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC. 767, at para 51.
67
Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 54.
68
27
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3.6.1.2 Enumerating cases where different Benches have reached diametrically opposite results
in cases which have similar facts and circumstances, 69 the Supreme Court has called the “lack of
consistency”70 and “want of uniformity”71 in capital sentencing, “a poor reflection of the system
of criminal administrationof justice.”72 The Court has expressed concern that the “extremely
uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing
law which clearly falls foul of constitutional due process and equality principle.”73
3.6.2 Empirical Data on the Imposition of the Death Penalty
3.6.2.1 Data presented at the National Consultation and submitted to the Law Commission in
response to the public consultation, substantiate the picture of inconsistent, arbitrary and judge
centric application of the death penalty.
3.6.2.2 Data gathered by the National Crimes Record Bureau on death sentences indicates that in
the period between 2000 and 2012, 1677 death sentences were imposed by Indian courts. As was
mentioned in the National Consultation by some participants this implies that India sends on
average 129 persons to death row every year, or roughly one person every third day. In Khade 74,
the Supreme Court, took note of these figures and stated that this number was alarmingly high
69
See SwamyShraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52.
70
SwamyShraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 52.
71
72
73
74
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.
28
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and appeared to suggest that the death penalty is being applied much more widely than was
envisaged by Bachan Singh.75
3.7.1 How can any court in the country determine whether the cases before them are the rarest of
rare? Each judge can only limit his analysis to the cases he has presided over or read about. In
light of the large volumes of cases, the determination that one or the other case is a “rarest of rare
case” would remain nothing but a legal fiction. Whether a law that permits the taking of life on
the basis of a legal fiction, is in consonance with the text and spirit of the Constitution, bears
investigation.
3.7.2 “[The] death penalty is irrevocable; it cannot be recalled. It extinguishes the flame of life
forever …It is by reason of its cold and cruel finality that death penalty is qualitatively different
from all other forms of punishment.” Bachan Singh v. State of Punjab (Bhagwati J., dissenting)76
3.7.3 In Rampalb Pithwa Rahidas v. State of Maharashtra,77 where the trial court sentenced 8
persons to death and the high court confirmed the death sentence against 5 of them, the Supreme
Court acquitted all the accused, on the ground that the main evidence against them – that of an
approver – was not reliable. The Court not only found the evidence unconvincing, it also
concluded that the witness was pressured by the police to turn approver because “the
investigation had drawn a blank and admittedly the District Police of Chandrapur was under
constant attack from the media and the public.”78
[T]he number of death sentences awarded … is rather high, making it unclear whether death penalty is really being
75
awarded only in the rarest of rare cases. – Shankar KisanraoKhade v. State of Maharashtra, (2013) 5 SCC 546.
76
Bachan Singh v. State of Punjab, (1 982) 3 SCC 24, 751, at para 23.
77
Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685.
78
Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685, at para 27.
29
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3.7.4 So also, in SubashChander etc. v. KrishanLal and ors.,79 where the trial court convicted the
four accused and sentenced three of them to death, and the High Court upheld the conviction, but
commuted the sentence of all to life, the Supreme Court acquitted all the accused, observing that,
“[w]e have noticed with pain that the aforesaid four accused persons were implicated not only to
mislead the court but also to provide protection to the real persons, being sure that ultimately no
court could convict and sentence any of the aforesaid accused persons.” 80 Despite the Court’s
opinion that “no court could convict and sentence any of the aforesaid accused persons,” 81 3 of
them spent nearly six years on death row.
3.7.5 Again, in Parmananda Pegu v. State of Assam,82 the Supreme Court noted that the
confessions were involuntary and that the medical evidence and cause of death did not match the
confessions made. The accused had retracted their confessions and informed the trial court of the
torture that they suffered when they made their statements in the court under Section 313 CrPC.
The Supreme Court acquitted the accused, and found that the facts suggested that the police had
extracted an involuntary confession. Notably, both the lower courts had imposed the death
sentence on the accused.
3.7.6 Other factors like the denial of effective legal representation may send innocent persons to
the death row. An example is Mohd. Hussain @ Julfikar Ali v. State,83 where the accused was
convicted and sentenced to death for a blast in a bus in Delhi which killed 4 persons. His
79
Subash Chander v. Krishan Lal and Ors, (2001) 4 SCC 458.
80
SubashChander v. KrishanLal and Ors, (2001) 4 SCC 458, at para 12.
81
SubashChander etc. v. KrishanLal and Ors, (2001) 4 SCC 458, at para 12.
82
ParmanandaPegu v. State of Assam, (2004) 7 SCC 779.
83
Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) SCALE 308.
30
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conviction and sentence was upheld by the High Court. 84 Before the Supreme Court, a division
Bench noted that the accused had been denied fair trial because of the denial of legal
representation.85 Castigating the trial court for its “casual manner” in conducting a capital
punishment case, the division Bench split over whether to acquit the accused or to send the case
for retrial.86 The matter was referred to a three judge Bench which sent the case for retrial. In
January 2013, Mohd. Hussain was found innocent and acquitted of all charges. He was in prison
for 15 years, out of which he was on death row for 7 years and 2 months.87
These cases and many more are clearly showing the failure of judgement.
3.8. “The march of our own jurisprudence -- from removing the requirement of giving special
reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for
imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the
Supreme Court to the rarest of rare cases – shows the direction in which we have to head.
Informed also by the expanded and deepened contents and horizons of the right to life and
strengthened due process requirements in the interactions between the state and the individual,
prevailing standards of constitutional morality and human dignity, the Commission feels that
time has come for India to move towards abolition of the death penalty.”88
3.8.2 “Although there is no valid penological justification for treating terrorism differently from
other crimes, concern is often raised that abolition of death penalty for terrorism related offences
84
State v. Mohd. Hussain @ Julfikar Ali, 140 (2007) DLT 428.
85
86
87
State v. Mohd. Hussain @ Julfikar Ali, Sessions Case No. 79/2012, dated 04.01.2013 (Del).
88
Recommendations by Twentieth Law Commission Report No. 262 on ‘The Death Penalty’.
31
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and waging war, will affect national security. However, given the concerns raised by the law
makers, the commission does not see any reason to wait any longer to take the first step towards
abolition of the death penalty for all offences other than terrorism related offences.”89
In the light of further arguments it is humbly pleaded that death penalty should be abolished.
ISSUE NO. 4 – Assuming that death penalty is valid, did the trail court err while giving
death penalty to all the accused in State of J&K v. Yousuf Khan & Ors?
In the arguments presented in Issue No. 1, I have stated before this Hon’ble SC that accused are
not guilty of murder. In the light of same arguments I humbly plead before this hon’ble court that
there is no point to go into the question whether trial court was right or wrong in giving death
penalty to the accused. Respondent directly pleads before this hon’ble court that accused were
not guilty of murder.
89
Supra 86.
32
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PRAYER
Wherefore, in the light of issues raised, arguments advanced and authorities cited, may this
Hon’ble court be pleased to:
1. Acquit Yousuf Khan, Younis Khan, Nabi Shafi and Mohammad Sami of the offences of
committing murder under S. 302 RPC.
2. Acquit Nabi Shafi of the offence of rape under S. 376 and Yousuf Khan and Younis
Khan of the offence of abetment to rape under S. 110 RPC.
3. Adjudge that death penalty is invalid and should be abolished accordingly.
AND/OR
Pass any order it may deem fit, in the interest of justice, equity and good conscience.
All of which is most humbly and respectfully submitted
S/d____________
COUNSEL FOR THE APPELLANT
33

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In The Supreme Court of India: Yousuf Khan & Ors. (A)

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KASHMIR UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2018

KASHMIR UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2018

IN THE SUPREME COURT OF INDIA

CENTRE AGAINST DEATH PENALTY, KASHMIR (P)

FOR OFFENCES CHARGED UNDER:

Counsel Appearing on Behalf of

YOUSUF KHAN & ORS.

MEMORIAL ON THE BEHALF OF APPELLANT

MEMORIAL ON THE BEHALF OF APPELLANT

Index of Authorities iii

Issues for Consideration 5

1. Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119

2. Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230

3. Anwar-ud-Din v. Shahkoor, 1966 Cri LJ 1270 SC

4. Ashok Debbarama v. State of Tripura, (2014) 4 SCC 747

5. Bachan Singh v. UOI, AIR 1980 SC 898

6. Banarsi Dass v State of Punjab, AIR 1981 CrlJ 1235

8. Ediga Annamma v. State of Andhra Pradesh, AIR 1974 SC 799

9. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641

10. Gambir v. State of Maharashtra, AIR 1982 SC 1157

11. G. Veerabrahmam v. State Of Andhra Pradesh on 15 July, 1985

12. Horvath v. R, (1979) 44 C.C.C (2d) 385

13. Ishwar Pandurang Masram v. State of Maharashtra, 2013 CrlJ 3597

14. Jagmohan v. State, AIR 1973 SC 947

15. Janarlaldas v. State of Orissa, 1991 (3 SCC 27)

16. Khatri Hemraj v. State of Gujarat, AIR 1972 SC, 922

17. Mohammad Giasuddin v. State of A.P (1977) 3 SCC 287.

22. Mohan Lal v. State Of UP AIR 1974 SC 1144

23. Paras Ram v. State of Punjab, (1981) 2 SCC 508

24. Parmananda Pegu v. State of Assam, (2004) 7 SCC 779

26. Ramakant Rai v. Madan Lal, Cr LJ 2004 SC 36

27. Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685

29. Sangeet v. State of Haryana, (2013) 2 SCC 452.

30. Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

31. Saraduram v State of Chhatisgarh, 2010 CrlJ 1188

32. Selvi v. State of Karnataka 2010, 7 SCC, 263.

33. Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.

35. Shiv Mohan Singh v. State, AIR 1977 SC 949

40. Sunil Batra v. Delhi Admn, (1978) 4 SCC 494

41. Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, 343

42. Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767

5. H.L. Chowdhari’s JK Laws, 2nd Ed. (2013)

11. Sarkar, Law of Evidence, 13th Ed. (1990)

14. Subhash C. Gupta, Capital Punishment in India, (1986)

15. Walter P. Signorelli, Criminal Law, Procedure, and Evidence, (2011)

1. The Code of Criminal Procedure, 1973

2. The Indian Evidence Act, 1872

3. The Indian Penal Code, 1860

4. Evidence Act, 1977 (J&K)

5. Ranbir Penal Code, 1989

6. Constitution of India, 1950

Supreme Court under Art. 132 (1) of the Constitution.

substantial question of law as t the interpretation of this Constitution.”

“Art. 32 - Remedies for enforcement of rights conferred by this Part

of the rights conferred by this Part is guaranteed

conferred by this Part.”

January 2013 and got married the next day.

Sabz used to join her after coming from his job.

availability of suspect names.

the same. The police traced Sabz’s cellphone near Hazratbal.

Subsequently an F.I.R. was lodged.

hear the appeal under Cr.App. No 221 of 2018.

CDPK to withdraw writ petition and file that in SC.