Moot Court Assignment on Juvenile Justice

MOOT COURT ASSIGNMENT 2018-19 DSMNRU| LUCKNOW
BEFORE THE HON’BLE SUPREME COURT OF INDIANA
SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019
SHEKHAR SAXENA ……...PETITIONER
Versus
UNION OF INDIANA …………
RESPONDENT
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA)
WITH
SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019

SHYAMA …………
PETITIONER
Versus
……….RESPONDE
UNION OF INDIANA NT
MEMORIALS ON BEHALF OF THE RESPONDENTS
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MEMORIALS FOR RESPONDENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………..3-4
INDEX OF AUTHORITIES……………………………………………………………....5-7
STATEMENT OF JURISDICTION………………………………………………………..8
STATEMENT OF FACTS……………………………………………………………….9-10
STATEMENTS OF ISSUES……………………………………………………………….11
SUMMARY OF PLEADINGS…....……………………………………………………12-13
ARGUMENTS ADVANCED………………………………………...............................14-24
I: WHETHER THE SPECIAL LEAVE PETITION UNDET ARTICLE 136 OF THE

CONSTITUTION OF INDIANA IS MAINTAINABLE?.............................................14-15
II: WHETHER THE ORDER PASSED BY COURTS, REJECTIONG THE

CONDUCT OF BONE TEST FOR DETERMINING SHYAMA’S AGE WAS
JUSTIFIED…....................................................................................................................16-17
III: WHETHER ACT DONE BY SHEKHAR COMES UNDER SECTION 34 OF

INDIAN PENAL CODE,1860?........................................................................................18-20
IV: WHETHER THE ACT IS IN CONTRADICTION WITH THE CONSTITUTION

OF INDIANA AND INETRNATIONAL TREATIES?................................................21-23
PRAYER……………………………………………………………………………………24
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LIST OF ABBREVIATIONS
AC………………………………………………………………………...…..Appeal Chamber
AIR……………………………………………………………………….….All India Reporter
All…………………………………………………………………………………....Allahabad
All LJ…………………………………………………………………...Allahabad Law Journal
ALT………………………………………………………………………...Andhra Law Times
Anr………………………………………………………………………………….….Another
AP…………………………………………………………………………...…Andhra Pradesh
Art………………………………………………………………………………………..Article
Bom…………………………………………………………………………………….Bombay
Cal………………………………………………………………………………..…….Calcutta
CIT……………………………………………………………....Commissioner of Income Tax
CJI………………………………………………………………………..Chief Justice of India
Cr.LJ…………………………………………………………………..…Criminal Law Journal
Cr.PC………………………………………………………..…….Code of Criminal Procedure
Del………………………………………………………………………………………...Delhi
EHRR………………………………………………………..European Human Rights Reports
FC……………………………………………………………………………...…Federal Court
FCR………………………………………………………………….…..Federal Court Reports
HC…………………………………………………………………………………..High Court
J…………………………………………………………………………………………Justice
Kar……………………………………………………………………………………Karnataka
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LLJ……………………………………………………………………..….Law Library Journal
MLJ…………………………………………………………………..……Madras Law Journal
Ors………………………………………………………………………………………..Other
s
¶……………………………………………………………………………………....Paragraph
PC……………………………………………………………………………...…Privy Council
Punj………………………………………………………………………………………
Punjab
SC……………………………………………………………………………….Supreme Court
SCC………………………………………………………………………Supreme Court Cases
SCR…………………………………………………………………….Supreme Court Reports
Sec………………………………………………………………………………………Section
SLP…………………………………………………………………..….Special Leave Petition
UOI…………………………………………………………………………..….Union of India
U.P……………………………………………………………………………..…Uttar Pradesh
U.S……………………………………………………………………………..…United States
u/s………………….………………………………………….…………………Under Section
v…………………………………………………………………………………….……Versus
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INDEX OF AUTHORITIES
 Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335

 Balakrishna v. Rmaswami, (1965) AIR 195
 Bherusingh v. State, 1956 Madh. BLJ 905
 Bhoop Ram v. State of U.P, AIR 1989 SC 1329
 C.C.E v Standard Motor Products, (1989) AIR 1298
 Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316, 323
 Chandrakant Patil v. State, (1983) 3 SCC 38
 Chunni Lal Mehta v. Century Spinning and Mfg. Co. AIR 1962 SC 1312
 CIT v. Nova Promoter & Finlease Pvt. Ltd., (2012) 342 ITR 169 (Del)
 Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212
 Dhakeswari Cotton Mills Ltd. v. Commr. Of I.T., (1995) 1 SCR 941 (949)
 Dharam Pal v. State of Haryana, AIR 1978 SC 1492
 Garib Singh v. State of Punjab, 1972 Cr LJ 1286
 Gopinath Gosh v. State of West Bengal, AIR 1984 SC 237
 Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 SCC 359
 Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai, (2004)3 SCC 214
 Jaya Mala v. Home Secretary, Govt. Of J&K, AIR 1982 SC 1297
 Kalyan Chandra Sarkar v. Rajesh Ranjan Pappu Yadav, AIR 2005 SC 972
 Kathi Raning Rawat v. The State of Saurashtra, (1952) AIR 991
 Laxman v. Keshavrao, AIR 1993 SC 2596
 Mepa Dana, (1959) Bom LR 269
 Nandu & Dhaneshwar Naik v. The State, 1976 CriLJ 250
 Oswal Danji v. State, (1960) 1 Guj LR 145
 Pandurang v. State of Hyderabad, AIR 1955 SC 216
 Pawan Kumar v. State of Haryana, (2003)11 SCC 241.
 Pritam Singh v. The State, (1950) AIR 169
 Raghunath G. Panhale v. Chaganlal Sundarji, (1999) 8 SCC 1
5|Page
 Ramakant Rai v. Madan Rai , (2003) 12 SCC 395

 Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653
 Shaik China Brahmam v. State of A.P., AIR 2008 SC 610
 Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
 Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd.,
(1962) AIR 1314
 Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520
 State of Bihar v. Lala Mahto A.I.R 1955 pat. 161
 Subramanian Swamy v. Raju, (2014) 8 SCC 390
 Surinder Singh vs. State of U.P., AIR 2003 SC 3811
 Tahera Khatoon v. Salambin Mohammad, (1992) 2 SCC 635
 Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.)
 William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116
 Zahira Habibullah Sheikh v. State of Gujrat, (2004) 5 SCC 353
BOOKS & STATUTES
 Basu’s Indian Penal Code (Law of Crimes), Vol I., Ashoka Law House, 11th Edn. 2011.
 Criminal Manual, Universal Law Publishing Company, 2015.
 Dr. Karunakaran Mathiharan, Modi’s Medical Jurisprudence and Toxicology, LexisNexis
Butterworths, 23rd Edn. 2010.
 Dr. (Sir) Hari Singh Gour, Penal Law of India, Law Publishers (India) Pvt. Ltd., 11th
Edn. 2014.
 Indian Penal Code, 1860.
th
 K I Vibhute, P.S.A Pillai’s Criminal law, Lexis Nexis, 12 Edn. 2014.
 J C Smith, Smith and Hogan Criminal Law – Cases and Materials, LexisNexis
Butterworths, 8th Edn. 2002.
 Justice V. V. Raghavan, Law of Crimes, India Law House, New Delhi, 5th Edn. 2001.
 The Constitution of India, 1950 (Bare Provisions)
 The Juvenile Justice (Care and Protection of Children) Act. 2015.
 The Juvenile Justice (Care and Protection of Children) Rules. 2007.
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 Maharukh Adenwalla, Child Protection and Juvenile Justice System, ChildLine India
th
Foundation, Mumbai, 10 Edn. 2008.
 Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code, Vol I,
th
Bharat Law House, Delhi, 27 Edn. 2013.
 Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code, Vol II,
th
Bharat Law House, Delhi, 27 Edn. 2013.
 S.K.A Naqvi & Sharat Tripathi, R. N. Choudhry’s Law Relating to Juvenile Justice in
rd
India, Orient Publishing Company, New Delhi, 3 Edn. 2012.
 Ved Kumari, Juvenile Justice System in India, Oxford University Press, New Delhi, 2004.
WEBSITES
1) www.indiancurrentaffairs.wordpress.com
2) www.indiankanoon.com
3) www.judis.nic.in
4) www.lawyersclubindia.com
5) www.livelaw.com
6) www.onelawstreet.com
7) www.vakilno1.com
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STATEMENT OF JURISDICTION
The Petitioners has approached this Hon’ble Supreme Court of Indiana invoking its
discretionary Jurisdiction under Article 136 of the Constitution of Indiana. The Respondents
reserve the right to contest this Jurisdiction of the Hon’ble Court.
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STATEMENT OF FACTS
It has been 6 years since his employment. Mr. R. Batra had two children, a boy named Ravi,
aged 18 years and a girl named Vanita, aged 16 years. Both Vanita & Ravi treated Shyama in
a condescending manner, they insulted him on trivial matters. One day, Shekhar aged 17
years and 7 months, son of Mr. Saxena, neighbor of Mr. Batra, was playing soccer in the
society park. Ravi & Vanita were jogging there as per their routine. Shekhar & Ravi had
animosity since childhood. While playing soccer, the football hit over the head of Vanita
which gave her a minor head injury. Over this, Ravi started verbally abusing Shekhar, this
lead to a heated quarrel between the two. This provoked Ravi to give Shekhar a blow but
suddenly Mr. Mehta another neighbor came and resolved the quarrel.
II
In an argument, Shyama said, “It was not available in the market.” On this, Ravi started
insulting him in public. On several occasions, Vanita also verbally abused & tormented him
in public. One time, while Ravi was insulting Shyama in the society doorway; Shekhar saw
this & after Ravi left, Shekhar took this opportunity to talk to Shyama. Both shared the hatred
for Ravi & Vanita. Mrs. Batra reached the exhibition which was located in the remote &
desolate part of the city of Brada. The organizer of exhibition was Mrs. Batra’s college friend
so she engaged with her. Meanwhile, around 8:30 p.m., Vanita was taken by four persons &
Ravi sensed that his sister was missing, and then he started searching her. While searching, he
reached the basement where he saw two guys were tightly holding his sister and the other two
were trying to outrage her modesty by tearing off her clothes. When Ravi tried to save his
sister, one of them gave a blow by a rod on his head & several blows over his abdomen due
to which he fell unconscious. When Vanita tried to scream, her mouth was forcefully shut
and in a sudden haste she was strangulated.
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III
The case was admitted to the Juvenile Board as all the boys were below 18 years of age. On
15th May, 2015, the Juvenile Board found Shekhar & Shyama to be well aware of the
circumstances & consequences of their acts and, therefore, their case was committed to the
Session Court finding them capax of committing offence. While Raju & Ranveer were tried
by the Juvenile Board u/s 304, 326, 354 read with sec.- 34 of the Indiana Penal Code,1860 .
Both Shekhar & Shyama submitted to the Session Court that the court has no jurisdiction to
try the case, both of them being juveniles and, hence, their case should be remanded back to
the Juvenile Board. On 12th June, 2015, Shekhar’s case was remanded back to Juvenile
Board but Shyama’s submissions were rejected due to lack of evidence of age. The Birth
Certificate of Shyama provided by the Municipality could not be discovered so there was no
evidence of his age. Then Shyama asserted that a Bone Test or other allied test should be
conducted to determine his age but this was rejected by the Court due to the inconclusiveness
of these kinds of tests. Later on, on 28th July, 2015, Shyama was found guilty u/s 304 of IPC,
1860 as his fingerprints were found on Vanita’s body as per medical report and u/s 326 &
354 read with Section 34 of IPC, 1860 & the Court sentenced him for imprisonment of 3
years. On 4th August, 2015, Shekhar was found guilty u/s 304, 326 & 354 read with Section
34 of IPC, 1860 and this was corroborated by the statement of Ram Manohar.
IV
An appeal was preferred by Shekhar in the Court of Session against the judgment and order
passed by the Juvenile Board. Appeal was not maintainable as the case has proved beyond the
reasonable doubts before the Juvenile Board. An appeal was filled in the High Court by
Shyama seeking setting aside the order of conviction since the Court of Session has no
jurisdiction to try the case as the accused was a minor & for the suspension of execution of
sentence passed by the Session Court. But both the petitions were rejected by the High Court
as in the opinion of the High Court, the evidences revealed that both of them were well aware
of the circumstances and consequences of their delinquent acts and, therefore, both were
capax of committing crime & that both were acting under common consensus. On 11th
January, 2016 both Shyama & Shekhar approached the honorable Apex Court of Indiana
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STATEMENT OF ISSUES
I: WHETHER THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIANA IS MAINATAINABLE?
II: WHETHER THE ORDER PASSED COURTS, REJECTING THE CONDUCT OF

THE BONE TEST FOR DETERMINING SHYAMA’S AGE WAS JUSTIFIED?
III: WHETHER THE ACT DONE BY SHEKHAR COMES UNDER SECTION 34

THE INDIAN PENAL CODE, 1860?
IV: WHETHER THE ACT DONE IS IN CONTRADICTION WITH THE

CONSTITUTION OF INDIANA AND INTERNATIONAL TREATIES?
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SUMMARY OF PLEADINGS

CONSTITUTION OF INDIANA IS MAINTAINABLE?
It is humbly submitted before this Hon,ble Supreme Court (hereinafter as SC) that the special
leave petition filed by the appellant is not maintainable as there is no gross injustice has
occurred to the Petitioners. It is also submitted that the High Court (hereinafter HC) has not
ignored any substantial question of law.
II: WHETHER THE ORDER PASSED BY THE COURTS, REJECTING THE

CONDUCT OF THE BONE TEST DETERMINING SHYAMA’S AGE WAS
JUSTIFIED OR NOT?
It is humbly submitted before this Hon’ble Supreme Court that the Sessions Court has
declared both, Shyama and Shekhar, as the accused in the light of the heinous acts committed
by them. The Hon’ble High Court raised the sentence of both the persons convicted. Shyama
was ordered to be sentenced for life imprisonment and Shekhar was sentenced for a period of
10 years imprisonment. This order of conviction passed by the Sessions Court and the
sentence increased by the High Court are well justified. The sentence awarded by High Court
was Justified. It is contended too that there was no need to determine Shyama age.

It is contented before this honorable Court that the decision passed by the Honorable High
Court is a reasoned decision. Also, it is further contended that Shekhar was not charged
merely on the ground of presence alone, following reasons were given by the honorable
Court, there was commission of an illegal act. There was common intention of all to commit
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the offence. There was participation of all in furtherance of common intention in order to
accomplish the offence.

It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile Justice
(Care and Protection of Children) Act. 2015 (hereinafter as Act.) is very much in consonance
with the provisions of the Constitution of Indiana. All the children in the age group of 16-18
years are treated equally and no two children in the age group of 16-18 years who commit a
heinous offence are proposed to be treated differently under the current Act. Hence, there will
be not differential treatment of such children on any ground. It is humbly submitted that the
Act is in consonance with the Constitution of Indiana. It is humbly submitted that the Act is
in consonance with the International Principles in respect of Juveniles. It is contended too
that the there are various contradiction present in the case.
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ARGUMENTS ADVANCED

CONSTITUTION OF INDIANA IS MAINTAINABLE?
1.1 It is humbly submitted to the kind perusal of this jurisdiction that no injustice has
occurred to the Petitioners. It is contended that special leave petition is only allowed in
exceptional cases, such as, a breach of the principles of natural justice by the order appealed
against1 or where the appeal to the SC is on a point which could not have been decided in the
appeal under the ordinary law2 or where the statutory appeal would be futile 3 or unduly
portrait the litigation4.
1.2 It is humbly submitted that Hon’ble High Court (hereinafter as HC) has not done any
injustice. It is submitted that HC has inquired into the matter and after applying the principles
of natural justice and other statutory provisions it has delivered the judgment 5 which protects
the basic motive of the Constitution by applying restrictions on the Petitioners. It is humbly
submitted that in the present case no special circumstances exists as the power should be
exercised where the special circumstance are shown to exist6.
1.3 It is humbly submitted that no procedural bypass or irregularity is done by the Hon’ble
HC regarding the procedure. It is humbly submitted that the jurisdiction of SC under Art. 136
is a corrective one7. It is humbly submitted that High Court has ignored no proceedings. It is
humbly submitted that in the present case question of fact may arise but there is no such
question that the High Court cannot handle. In the present case high court has delivered the
judgment by taking all the issues and facts into consideration.
1
Mahadayal v. C.T.O., AIR 1958 SC 667
2
Cf. Kanhaiyalal v. I.T.O., AIR 1962 SC 1323 (1325)
3
Onkarlal v. State of Rajasthan, AIR 1986 SC 2146 (para 3)
4
Vali Pero v. Fernandez., (1989) 4SCC 671 (paras 6-7)
5
¶ 11 Fact Sheet
6
Ram Saran v. Commercial Tax Officer, AIR 1962 SC 1325 (1328). Kunhyayammed v. State of Kerala (2000)
6 SCC 359 (para 13)
7
Zahira Habibullah Sheikh v. State of Gujrat, (2004) 5 SCC 353
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1.4 It is humbly submitted that it’s an exceptional and overriding power, naturally, has to be
exercised sparingly and with caution and only in special and extraordinary situations. Article
136 does not give a right to a party to appeal to the SC rather it confers a wide discretionary
power on the SC to interfere in suitable cases8. It was held that this power shall be exercised
sparingly and in exceptional9 cases only. As in the present case no irregularity is done and the
circumstances are not so special or exceptional for this Hon’ble Court to exercise its
jurisdiction.
1.5 Therefore, it is humbly submitted that the special leave petition filed by the Petitioners
would not be maintainable.
1.6 It is humbly submitted that the substantial justice is already done by the Hon’ble High
Court by following the principle of natural justice. It is contended too that the SC will not
exercise this discretionary power to interfere, when the substantial justice had been done by
the order of the inferior court10 or tribunal11. It is humbly contended that no substantial
question of law is involved in the present case. Question of fact is involved for which SC
would not exercise it discretionary power as Question of fact is not permitted to raise unless
there material evidence which has been ignored by the High Court12.
1.7 It is humbly submitted that the substantial question of law is already resolved by the High
Court by leaving no substantial question behind. Art. 136 do not confer a right of appeal upon
the party13 but merely vest discretion in the Supreme Court to interfere in exceptional cases 14.
The apex court should exercise this power with great caution and circumspection. It should
settle the law clear and make operational to make it binding precedent for the future instead
of keeping it vague15. It does not confer a right to appeal, it confers only a right to apply for
special leave to appeal16.
8
Dhakeswari Cotton Mills Ltd. v CIT West Bengal (1955) AIR 65 (SC); see also H.M. Seervai, Constitutional
Law of India (4th edn. Vol 1 2010).
9
State of Maharashtra v. Dadaniya, AIR 1971 SC 1722 (1725); Union of India v. Apte, AIR 1971 SC
1533(1537)
10
Margaret v. Indo-Commercial Bank, AIR 1979 SC 102 (para 14).
11
Hindustan Tin Works v. Employees, AIR 1979 SC 75 (para6)
12
Union of India v. Rajeshwari & Co. (1986) 161 ITR 60 (SC)
13
Bengal Chemical & Pharmaceuticals Works Ltd. v. Employees, AIR 1959 SC 633 (635). Also see
Kunhayammed v. State of Kerala, AIR 2000 SC 2587 (para 13).
14
State of Bonbay v. Rusy Mistry, AIR 1960 SC 391 (395) : 1960 Crl. LJ 532; Municipal Bd, Pratabgarh v.
Mahendra Singh Chawla, AIR 1982 SC 1439 (para 6)
15
Union of India v. Karnail Singh, (1995) 2 SCC 728 (para 8)
16
Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 188 (193).
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1.8 Therefore, it is humbly submitted before this Hon’ble Supreme Court of India that the
Special Leave Petition filed by the Petitioners is not Maintainable.
II: WHETHER THE ORDER PASSED BY THE COURTS, REJECTING THE

CONDUCT OF THE BONE TEST FOR DETERMINING SHYAMA’S AGE WAS
JUSTIFIED OR NOT?
2.1 It is contended by the respondents that the proceedings of the Sessions Court in the
present case were justified and lawful. There was no irregularity of proceeding in the present
case. The Sessions Court found Shyama guilty of the offences in light of the circumstantial
evidences which were found against him. According to the Medical Report, the fingerprints
of Shyama were found on Vanita’s body which led the court upon such a decision.
2.2 It is contended that “even the medical evidence supports the commission of sexual
violence on the victim and we need not elaborate on this issue any more in the light of
concurrent finding of the courts below having been recorded against the Appellant holding in
clear terms that sign of commission of rape on the victim by the Appellant stood proved by
medical evidence beyond reasonable doubt”17. In the present case, the fingerprints of Shyama
on the body of Vanita were enough to prove that the heinous offence was committed by him.
There was substantial circumstantial evidence before the Sessions Court against Shyama
which led to his conviction.
2.3 It is submitted that the second accused in the present case i.e. Shekhar was found guilty
by the Sessions Court upon the statement of Ram Manohar. He is the same person who saw
Shekhar escaping out of the basement, where the whole crime took place, at the night of the
crime. It has been held in plethora of cases that wherein there is a difference of opinion
regarding the ocular and medical evidence, the ocular evidence always supersedes the
medical evidence.
2.4 Since witnesses are the eyes and ears of justice, the oral evidence has primacy over the
medical evidence. If the oral testimony of the witnesses is found reliable, creditworthy and
17
Deepak v. State of Haryana, (2015) 4 SCC 762
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inspires confidence, the oral evidence has to be believed, it cannot be rejected on hypothetical
medical evidence18.
2.5 The testimony of the eye witnesses cannot be thrown out on the ground of alleged
inconsistency between it and the medical evidence19. Thus, the position of law in cases where
there is a contradiction between medical evidence and ocular evidence can be crystallized to
the effect that though the ocular testimony of a witness has greater evidentiary value vis-`-vis
medical evidence, when medical evidence makes the ocular testimony improbable, that
becomes a relevant factor in the process of the evaluation of evidence 20. Hence, the Sessions
Court was justified in convicting both the accused for committing such heinous offences.
2.6 The increasing of the sentence of both the accused in the present case by the Hon’ble
High court was a justified act. The Hon’ble High Court sentenced Shyama for imprisonment
for life and Shekhar was sentenced for imprisonment for a period of ten years. The Hon’ble
High Court opined that the evidences revealed that both of the accused were well aware of
the circumstances of their delinquent acts. Also, the case had been proved beyond reasonable
doubt.
2.7 It is humbly contended before this honourable court the reasons given by High Court
while rejecting the petition stated that, Shyama was well aware of the circumstances and
consequences of his delinquent act and therefore he was considered capax of committing
crime.
2.8 It has been held by the courts in their judgments where if the court by the appearance of
the person can determine if the person is adult then, he will be considered adult. The court in
the case of Babloo Pasi v. State of Jharkhand21 opined that by observing the physical built up
of the person, it can be ascertained that he is an adult. It would be a duty of the court to
accord the benefit to a juvenile, provided he is one, to give such benefit to one who in fact is
not a juvenile may cause injustice to the victim22
2.9 In this situation it can be well ascertained that, not only his appearance was considered
also his acts were considered too. Hence, in the present case the accused was well aware of
18
Hon’ble Justice M.L. Singhal, Medical Evidence and it’s use in trial of cases, J.T.R.I. Journal, Issue- 3,
September, 1995
19
Solanki Chimanbhai Ukabhai v. State of Gujrat, AIR 1983 SC 484
20
Abdul Syeed v. State of Madhya Pradesh, (2010) 10 SCC 259
21
(2009) 64 ACC 754
22
Ravinder Singh Gorkhi v. State of Uttar Pradesh, (2006) 5 SCC 584
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the circumstances of his delinquent act and hence he was capax of committing such a heinous
offence. It’s further contended before this Hon’ble Court that the orders passes by both the
lower courts were well justified and there is no need to waste the time of the court in such
vexatious and false contentions.

3.1 It is contended by the respondents that Shekhar had worked in furtherance of the common
intention to commit the offences against Ravi and Vanita. To attract the application of section
34 the following 3 conditions must exist, Firstly, criminal act must be done by several
persons. Secondly, there must be common intention of all to commit that criminal act.
Thirdly, there must be participation of all in the commission of offence in furtherance of that
common intention23. The first element is well proved. Several persons contended here are
Raju, Ranveer, Shyama and Shekhar. In furtherance of the common intention, several persons
must have done several acts which together constitute an offense. In such a situation S.34
provides for each to be liable for the entire act as a whole.
3.2 It is not necessary to prove an overt act by a particular person in order to convict the
person. Criminal act done by all or one of them in furtherance of the common intention of all
would suffice to convict all the people24. It is contended that the criminal act of murder was
done by all the four accused in the furtherance of their common intention. Lastly, culpability
of a person under S. 34 cannot be excluded merely because he was not present at the scene of
the occurrence of the particular offense for which he has been charged. Therefore, it is
contended that the act committed by the aforesaid person is an illegal act.
3.3 It is presumed that every sane person intends the result that his action normally produces
and if a person hits another on a vulnerable part of the body, and death occurs as a result, the
intention of the accused can be no other than to take the life of the victim and the offence
committed amounts to murder. The intention to cause damage or injury to either public or any
person has to be there. Intention connotes a conscious state in which mental faculties are
roused into activity and summoned into action for the deliberate purpose of being directed
towards a particular and specified act. Intention has been defined as the fixed direction of the
23
Parichat v. State of Madhya Pradesh, AIR 1972 SC 535
24
State of Punjab v. Maan Singh, 1983 CrLJ 229 (SC).
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mind to a particular object, or a termination to act in a particular manner. So, the intention of
the person can be gathered from the action of the person25.
3.4 Shekhar had animosity since childhood with Ravi. Shekhar and Shyama had shared the
hatred for Ravi and Vanita. Which is enough to show that Shekhar had intention to take
revenge from Ravi and Vanita by any means.Common intention comes into being prior to the
commission of the act in point of time. Therefore, there needs to be a prior plan to commit a
crime. This pre-arranged plan however need not be an elaborate one. A mere existence of a
pre-arranged plan that the offense be conducted is enough to satisfy this element. In most
circumstances, proof of common intention has to be inferred from the act or conduct or other
relevant circumstances of the case at hand26.
3.5 Moreover, the intention to kill is not required in every case, mere knowledge that natural
and probable consequences of an act would be death will suffice for a conviction under s. 302
of IPC. The common intention must be to commit the particular crime, though the actual
crime may be conducted by anyone sharing the common intention 27. Therefore, it is
contended by the prosecution that while the act of murder was conducted in furtherance of
the common intention between the two accused which can be inferred from their frequent
discussions on what it would mean if Ravi were to die one day, a common intention to
commit the offense of murder.
3.6 It is contended that the principle of Common Intention embodies the concept of Joint
Liability and says that all those persons who have committed a crime with a common
intention and have acted while keeping in mind the common intention, should be liable for
the acts of another done in common intention as if the act is done by the person alone.
3.7 The ‘common intention’ implies a prior concert, that is, a prior meeting of minds and
participation of all the members of the group in the execution of that plan. Common intention
also means a desire to commit a criminal act without any contemplation of offence. It deals
with doing of several acts, similar or diverse in furtherance of common intention.
3.8 Direct proof of common intention is seldom therefore intention could be inferred from
circumstances. The court must draw inferences based on the premises presented by the
25
Kesar Singh v. State of Haryana, (2008) 15 SCC 753
26
Maqsoodan v. State of Uttar Pradesh, 1983 CrLJ 218 (SC)
27
Hardev Singh v. State of Punjab, AIR 1979 SC 179
19 | P a g e
Prosecution28. In the immediate matter, the circumstances undeniably point towards existence
of a pre-arranged plan on part of the accused to make the murder look sudden but natural and
thus are guilty of the aforementioned offences.
3.9 It is humbly submitted that there were four persons29, two of them were tightly holding
Vanita and other two were trying to outrage her modesty. Even if, Shekhar was holding
Vanita cannot be the ground to save him from the crime that he has committed.
3.10 It is humbly submitted before this honorable Court that, his plea of merely present at the
crime scene is wrong and denied. The accused was present at the crime scene in pursuance of
a pre-planned act of taking revenge. It is his hatred and animosity due to which he committed
such a heinous offence. It is pertinent to mention again that, Shekhar became so ambitious
with the hatred against Ravi and Vanita that, he started discussing the same with their
servant.
28
Idris Bhai Daud Bhai v. State of Gujrat, 2003 SCC 277
29
¶ 5 Fact Sheet
20 | P a g e

4.1 The new Act establishes a more robust, effective and responsive legislative framework
for children requiring care and protection, as well as children in conflict with law. Its
provisions responded to the perceptions, articulated by a wide cross-section of society for the
need to have an effective and strengthened system of administration of juvenile justice, care
and protection.
4.2 The Supreme Court strongly emphasized for a development in the current legislation of
relating to juvenile offender in the case of Gaurav Kumar v. The State of Haryana30. The
court observed that, “The rate of crime and the nature of crime in which the juvenile are getting
involved for which the Union of India and the State Governments are compelled to file cases
before this Court to which the learned Attorney General does not disagree, have increased. A time
has come to think of an effective law to deal with the situation, we would request the learned
Attorney General to bring it to the notice of the concerned authorities so that the relevant
provisions under the Act can be re-looked, re-scrutinize and re-visited, at least in respect of
offences which are heinous in nature”.
4.3 The present act which has been amended is very well in consonance with the Articles of
the Constitution of Indiana. Further, the Section 3 under the General Principles of Care and
Protection of Children of the Act. states that there shall be no discrimination against a child
on any ground including sex, caste, ethnicity, place of birth, disability and equality of access,
opportunity and treatment to every child.
4.4 Elaborate statistics have been laid before us to show the extent of serious crimes
committed by juveniles and the increase in the rate of such crimes 31. Also, if mature and
cognitive individuals are given the armour of a Special Law allowing them to commit
offences under the Indian Penal Code without any liability, they would breed within
themselves enraged criminals with psychotic tendencies. Fake birth certificates would throng
30
2015 (4) SCALES 31
31
Subramaniam Swamy v. Raju (2014) 8 SCC 390
21 | P a g e
and act as a weapon of defence against prosecution for their wrongdoings. This is against the
principles of natural justice and against the nature of an intelligent civilized society.
4.5 Therefore, the Act. is in consonance with Article 15 which prohibits discrimination on
grounds of religion, race, caste, sex or place of birth. The procedures for treatment of children
who commit heinous crimes in the age group of 16 to 18 years are well laid down in the Act.
There is no arbitrariness in the current Act. with regard to procedure. So, there is no violation
of article 21 of the Constitution which provides for right to life and personal liberty.
4.6 The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly
defined and classified offences as petty, serious and heinous, and defined differentiated
processes for each category. Keeping in view the increasing number of serious offences being
committed by persons in the age group of 16-18 years and recognizing the rights of the
victims as being equally important as the rights of juveniles, special provisions have been
made in the new Act to tackle heinous offences committed by individuals in this age group.
4.7 In recent years, there has been a spurt in criminal activities by adults, but not so by
juveniles, as the materials produced before us show. In the case of State of Tamil Nadu Vs. K.
Shyam Sunder32, the court emphasized that “Merely because the law causes hardships or
sometimes results in adverse consequences, it cannot be held to be ultra vires the
Constitution, nor can it be struck down”.
4.8. The Republic of Indiana is a signatory to various conventions which protect the rights of
Children. The United Nations Convention on Rights of Child (hereinafter as UNCRC) was
ratified by the Republic of Indiana in 1992 and the 2000 Act was consequently brought in to
adhere to the standards set by the Convention. Specifically, it is pointed out that the practice
of statutory exclusion which ensures that perpetrators of certain grave offences are prosecuted
as adults; ‘judicial waiver’, granting discretion to special juvenile courts to waive jurisdiction
and transfer the juvenile’s case to an ordinary court of law and also the policy of concurrent
jurisdiction of both the ordinary and juvenile courts giving discretion to the prosecutor to
initiate proceedings in the more suitable court are followed in foreign jurisdictions33.
4.9 The Act. Of 2015 maintains this aim and seeks to improve implementation and procedural
delays experienced by the 2000 Act. The UNCRC states that signatory countries should treat
every child under the age of 18 years in the same manner and not try them as adults.
32
(2011) 8 SCC 737
33
Subramaniam Swamy v. Raju (2014) 8 SCC 390
22 | P a g e
However, many other countries who have also ratified the Convention try juveniles as adults,
in case of certain crimes. These countries include the UK, France, Germany, etc. The United
States is not a signatory to the UNCRC and also treats juveniles as adults in case of certain
crimes.
4.10 In United States of America, the majority age is 18 years, but persons older than 14
years may be tried as adults if they commit serious crimes (rape, robbery, murder etc.). The
state of New York pegs the age of juvenility at 16 years, and permits the prosecution of
persons aged between 13-16 years as adults in case of serious crimes. In Nepal, the minimum
age of criminal responsibility is 10 years. A child is a person below 16 years. A person
between 16-18 years are charged and tried as adults under the judicial system of Nepal.
4.11 Also, Countries like U.K. Canada and USA have departed from the obligations under the
UN Convention. The countries who are a signatory to the convention have certain
international commitments. However, by only becoming a mere signatory to the convention
does not make any country legally bound to follow the provisions of the convention. It is only
when then country has ratified such provisions, it becomes legally bound to abide by them.
23 | P a g e
PRAYER
Wherefore it is prayed, in light of issues raised, arguments advanced, and authorities cited,
that this Hon’ble Court may be pleased to:
1. Hold that the Special Leave Petition is not Maintainable.

2. Hold that the order of conviction passed by the Sessions Court and the Hon’ble High
Court is correct.
3. Hold that the Juvenile Justice (Care and Protection of Children) Act. 2015 is in
consonance with the Constitution of Indiana and International Conventions.
And Pass any other Order, Direction, Writ or Relief that it may deem fit in the Best
Interests Justice, Fairness, Equity and Good Conscience.
For this Act of Kindness, the Respondents Shall Duty Bound Forever Pray.
24 | P a g e

Moot Court Assignment on Juvenile Justice

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MOOT COURT ASSIGNMENT 2018-19 DSMNRU| LUCKNOW

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019

SHEKHAR SAXENA ……...PETITIONER

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA)

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019

MEMORIALS ON BEHALF OF THE RESPONDENTS

I: WHETHER THE SPECIAL LEAVE PETITION UNDET ARTICLE 136 OF THE

II: WHETHER THE ORDER PASSED BY COURTS, REJECTIONG THE

III: WHETHER ACT DONE BY SHEKHAR COMES UNDER SECTION 34 OF

IV: WHETHER THE ACT IS IN CONTRADICTION WITH THE CONSTITUTION

AIR……………………………………………………………………….….All India Reporter

All LJ…………………………………………………………………...Allahabad Law Journal

ALT………………………………………………………………………...Andhra Law Times

CIT……………………………………………………………....Commissioner of Income Tax

CJI………………………………………………………………………..Chief Justice of India

Cr.LJ…………………………………………………………………..…Criminal Law Journal

Cr.PC………………………………………………………..…….Code of Criminal Procedure

EHRR………………………………………………………..European Human Rights Reports

FCR………………………………………………………………….…..Federal Court Reports

LLJ……………………………………………………………………..….Law Library Journal

MLJ…………………………………………………………………..……Madras Law Journal

SCC………………………………………………………………………Supreme Court Cases

SCR…………………………………………………………………….Supreme Court Reports

SLP…………………………………………………………………..….Special Leave Petition

 Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335

 Ramakant Rai v. Madan Rai , (2003) 12 SCC 395

BOOKS & STATUTES

I: WHETHER THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

II: WHETHER THE ORDER PASSED COURTS, REJECTING THE CONDUCT OF

III: WHETHER THE ACT DONE BY SHEKHAR COMES UNDER SECTION 34

IV: WHETHER THE ACT DONE IS IN CONTRADICTION WITH THE

I: WHETHER THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

II: WHETHER THE ORDER PASSED BY THE COURTS, REJECTING THE

III: WHETHER THE ACT DONE BY SHEKHAR COMES UNDER SECTION 34

IV: WHETHER THE ACT DONE IS IN CONTRADICTION WITH THE

I: WHETHER THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

II: WHETHER THE ORDER PASSED BY THE COURTS, REJECTING THE

III: WHETHER THE ACT DONE BY SHEKHAR COMES UNDER SECTION 34

IV: WHETHER THE ACT DONE IS IN CONTRADICTION WITH THE

1. Hold that the Special Leave Petition is not Maintainable.

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