4th DERILHZI VIMETLRAWOPOLCOLITAN LEDEUGECAT,

IMONOONATTIOCOURNAL MOTOCOT
COMUPRTETCOITMIPONETITION
Team Code -A -28

THE HON'BLE SUPREME COURT OF INDIA

CRIMINAL PROCEDURE CODE
SPECIAL LEAVE PETITION

[FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF

INDIA] SLP [CRIMINAL] NO -----OF2021

IN THE MATTER OF

NAVEEN & ORS APPELLANT

VS

STATE FOR NCT OF DELHI & ORS RESPONDENT

(UPON SUBMISSION TO THE HON'BLE CHIEF

JUSTICE AND HIS COMPANION JUSTICES OF THE
SUPREME COURT OF INDIA)

MOST RESPECTFULLY SUBMITTED BY

COUNSEL MEMORIAL ON BEHALF OF THE
APPELLANT
 RIZVI LAW COLLEGE, MOOT COURT COMPETITION

TABLE OF CONTENTS

 LIST OF ABBREVIATIONS….....................................................................03

 INDEX OF AUTHORITIES….......................................................................04

 STATEMENT OF JURISDICTION...................................................................05

 STATEMENT OF FACTS.....................................................................................07

 ISSUES RAISED..................................................................................................06

 SUMMARY OF ARGUMENTS....................................................................12

 ARGUMENTS ADVANCED..............................................................................14

 PRAYER................................................................................................................28

2
 LIST OF ABBREVIATIONS

§ Section

§§ Sections

¶ Paragraph

¶¶ Paragraphs

Art. Article

WP Writ Petition

CRPC Criminal Procedure Code

AIR All India Report

N. Note

Ors Others

SC Supreme Court

SCC Supreme Court Case

Vs. Versus

HC High Court

UOI Union of India

SCR Supreme Court Report

IPC Indian Penal Code

 INDEX OF AUTHORITIES

1. Kareemul Hajazi Vs. State of NCT of Delhi & others (Crl. Appeal No. 740 of 2010)
decided on 7.1.2011.

2. Lalu Prasad Yadav & State of Bihar & another (Criminal Appeal No. 662 of 2010)
decided on 1st April 2010.

3. M/s Tata Steel Ltd. Vs. Atma Tube Products & others (FB) CRM 790 of 2010 decided
on 18th March 2013.

4. State (Delhi Administration) Versus Dharampal (2001) 10 SCC 372.

5. Amar Singh Vs State of Madhya Pradesh 1966 CrLs (MP) 1582

6. State of Up vs Madan Mohan

7. Kundala Bala Subramanyam vs State of A.P

8. Santosh Kumar Bariyar v. State of Maharashtra

9. Machhi Singh v. State of Punjab

10. Bacchan Singh v. State of Punjab

11. Maneka Gandhi v Union of India,

12. Jagmohan Singh v State of Uttar Pradesh

13. Kehar Singh v Delhi Administration

 STATEMENT OF JURIDCITION

Article 136 CRPC constitution of India.

Special leave petition in India (SLP) holds a prime place in the judiciary of India and has
been provided as residual power. The scope of power vested with Supreme Court of India Under
Article 136 special power to grant special leave to appeal against any judgment or order or decree
determination sentence in any matter or cause passed or made by any court / tribunal in the
territory of India.
The appellant would like to humbly submit that this special leave for appeal is
maintainable
There is expediency to invoke the jurisdiction of this court in the instant case.
The counsel for Appellants hereby humbly submit to the hon’ble Court jurisdiction Under
Article 136 of the constitution of India.
 ISSUES RAISED

Issues
1) Whether the special leave petition filed by the Appellants against the judgment of the
hon’ble High Court maintainable.
2) Whether all the facts and circumstances have been analyzed competently before deciding
the case.
3) Whether the crime is one which falls in the rarest of the rare category or not ?
 STATEMENT OF FACTS

1. The cold evening of Delhi on 16th December, 2015 the twenty two year medico
namely Sunita, who had gone with her friend Suneel, a medico, to watch a film at EP,
while returning for the girls hostel was standing at Jawahar Circle. A classic Car
‘Innova’ 7seater, with all gadgets, bar, pillows and CC TV Camera etc. driven by a
commerce graduate Shri Naveen along with his three co-students named Ramesh,
Suresh and Dinesh (minor) stopped and offered them lift to drop at the girls hostel on
Jawahar Lal Nehru Marg, which was readily accepted. She got prey to the savage lust
of this gang of four, who threw Suneel in a dense forest beyond Jagatpura after robbing
him and giving threats of murder, where he became unconscious, was naked and all the
four one by one assaulted her in the Car. Her private parts were ruptured to fulfill their
pervert sexual appetite, unthinkable and sadistic pleasure. The attitude, perception, the
beastial proclivity, inconceivable self-obsession and individual centralism of the four
made the young lady to suffer immense trauma and, in the ultimate eventuate, the life-
spark that moves the bodily frame got extinguished in spite of availing of all the
possible treatment that the medical world could provide. Her uterus, vagina and other
parts were damaged by iron-rod. She was thrown out of the Car naked. The death took
place at a hospital in IIMS, New Delhi where she had been taken to with the hope that
her life could be saved

2. Shri Suneel (PW-1) survived. A motor cycle arrived and the said man Shri Raj
Kumar (PW-72) gave the shirt and contacted control room. The PCR Van took him to
SMS Hospital for treatment. Sunita was searched by the police was found unconscious
and naked, was provided with clothes and was carried to SMS Hospital and later to
New Delhi.

3. Wide and vast publicity was given by the print and electronic media, the
Government agency became active. In depth investigation was continuously made and
to bring the charge, modern and progressive scientific methods were adopted. The
Innova Car No. RJ-14c-476 was 2 seized with iron rod, whisky bottles and glasses and
CC TV footage. The accused persons were arrested. Prosecutorix’s and Suneel’s
mobiles were recovered along with a lady wrist watch make Sonata, her stained clothes
and Rs. 1,000/- robbed from (PW-1). After arrest all the accused were medically
examined. The MLCs of all the first three accused show various injuries on their
person, the struggle marks. Dying declaration of the deceased was also recorded in
SMS Hospital. DNA tests were done. FIR was filed on 20.12.2015 by (PW-1), which
was handed over to S.I. Pratibha Sharma (PW-80) for investigation. Charge sheet filed
on 3.1.2016 under sections 376(2)(g), 302, 120-B, 377, 365, 366, 396, 397, 307, 412,
201 and 34 of IPC and Sections 354(3) and 235(2) of Cr.P.C

Trial Court:

4. After the case was committed to the Court of Sessions, all the accused were
charged. The prosecution initially examined 82 witnesses and thereafter, the statements
of the accused persons were recorded and they denied their guilt. Accused persons also
examined. Subsequently three more prosecution witnesses were examined and on
behalf of the defence, two witnesses were examined. Learned Session’s Judge vide
judgment dated 10.09.2016 convicted all the accused persons under section 120B IPC
for the offence of criminal conspiracy; under Section 365 / 366 IPC read with Section
120B IPC for abducting the victims with an intention to force the prosecutrix to illicit
intercourse, under Section 307 IPC read with Section 120B for attempting to kill PW-
1, the Informant, under Section 376(2)(g) IPC for committing gang rape with the
prosecutrix in pursuance of their conspiracy; under Section 377 IPC read with Section
120B IPC, for committing unnatural offence with the prosecutrix; under Section 302
IPC read with Section 120B IPC for committing murder of the helpless prosecutrix;
under Section 395 IPC for conjointly committing dacoity in pursuance of the aforesaid
conspiracy, under Section 397 IPC read with Section 120B IPC for the use of iron rod
and for attempting to kill PW-1 at the time OF COMMITTING ROBBERY; UNDER
Section 201 IPC read with Section 120B IPC for destroying of evidence and under
Section 412 IPC for the offence of being individually found in possession of the stolen
property which they all knew was a stolen booty of dacoity committed by them.

5. After recording the conviction, as aforesaid, the learned trial judge imposed the
sentence:
(a) The convicts Naveen, Ramesh, Suresh and Dinesh (after holding he is above 17
years) are sentenced to death with fine of Rs. 10,000/- to each, on non-payment simple
imprisonment of one month;
(b) For the offence under Section 120-B IPC 1 award the punishment of life
imprisonment to each of the convict and fine of Rs. 5000/- to each of them. In default
of payment of fine simple imprisonment for one month to such convict;
(c) For the offence under Section 365 IPC 1 award the punishment of seven years to
each of the convict and fine of Rs. 5000/- to each of them. In default of payment of
fine simple imprisonment for one month to such convict
(d) For the offence under Section 366 IPC 1 award the punishment of seven years to
each of the convict person and fine of Rs. 5000/- to each of them. In default of
payment of fine simple imprisonment for one month to such convict;
(e) For the offence under Section 376(2)(g) IPC 1 award the punishment of life
imprisonment to each of the convict person with fine of Rs. 5000/- to each of them. In
default of payment of fine simple imprisonment for one month to such convict;
(f) For the offence under Section 377 IPC 1 award the punishment of ten years to each
of the convict person and fine of Rs. 5000/- to each of them. In default of payment of
fine simple imprisonment for one month to such convict;
(g) For the offence under Section 307 IPC 1 award the punishment of seven years to
each of the convict person and fine of Rs. 5000/- to each of them. In default of
payment of fine simple imprisonment for one month to such convict;
(h) For the offence under Section 201 IPC 1 award the punishment of seven years to
each of the convict person and fine of Rs. 5000/- to each of them. In default of
payment of fine simple imprisonment for one month to such convict;
(i) For the offence under Section 395 read with Section 397 IPC 1 award the
punishment of ten years to each of the convict person and fine of Rs. 5000/- to each of
them. In default of payment of fine simple imprisonment for one month to such
convict.
(j) For the offence under Section 412 IPC 1 award the punishment of ten years to each
of the convict person and fine of Rs. 5000/- to each of them. In default of payment of
fine simple imprisonment for one month to such convict”

6. The learned trial Judge directed the sentences under Sections 20B/365/366/376(2)
(g)/377/201/395/ 397/412 IPC to run concurrently and that the benefit under Section
428 Cr.PC would be given wherever applicable. He further
recommended that appropriate compensation under Section 357A CrPC be awarded to
the legal heirs of the prosecutrix. That apart, as death penalty was imposed, he referred
the matter to the High Court for confirmation under Section 306 CrPC.
View of the High Court:

7. The High Court vide judgment dated 13.3.2017, affirmed the conviction and
confirmed the death penalty imposed upon the accused by expressing the opinion that
under the facts and circumstances of the case, imposition of death penalty awarded by
the trial court deserved to be confirmed in respect of all the four convicts.

8. Criminal appeals were filed before the Supreme Court by all the convicts, which
were consolidated. The convicts took following objections amongst others :
i. Delayed registration of FIR;
ii. Non-mentioning of names of assailants in the F.I.R.;
iii. Inconsistencies and omissions amounting to contradictions in the testimony of PW-
1.
iv. Recovery of the Car and other items on personal search and statements of
disclosure leading to recovery;
v. Admissibility and acceptability of the dying declaration of the prosecutrix when no
names were spelt out;
vi. Insertion of the iron rod in the rectum and vagina after rape by all the convicts;
vii. There was no criminal Conspiracy;
viii. Age of Dinesh was 17 years and 10 months as per Matriculation
School Certificate against medical certificate of 18 years 8 months.
 Punishment of criminal conspiracy

Section 120B CRPC- Punishment of criminal conspiracy

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with

death, 1[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for a
term not exceeding six months, or with fine or with both.
 SUMMARY OF ARGUMENTS

1 Whether the special leave petition filed by the Appellants against the judgment of the
Hon'ble Supreme court maintainble?
Yes Article 136 does not confer a right of appeal on any party but it confers a discretionary
power on the Supreme Court to interfere in suitable cases.
Notwithstanding anything contained in Chapter IV of the Constitution, the Supreme Court
may in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any court or
tribunal, except in relation to any court or tribunal constituted by or under any law relating
to the armed forces.
The jurisdiction conferred by Article 136 is divisible into two stages; first stage is upto the
disposal of prayer for special leave to file an appeal and the second stage commences if
and when the leave to appeal is granted and special leave petition is converted into an
appeal.

2 Whether all the facts and circumstances have been analyzed Competently before
deciding the case?

No, There exit question of law. Admissibility and acceptability of the dying
declaration of the prosecutrix when no names were spelt out: Section 32(1) in The
Indian Evidence Act, 1872 1 when it relates to cause of death. —When the statement is
made by a person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that person's
death comes into question. Such statements are relevant whether the person who made
them was or was not, at the time when they were made, under expectation of death, and
whatever may be the nature of the proceeding in which the cause of his death comes
into question.

Age of Dinesh was 17 years and 10 months as per Matriculation School Certificate
against medical certificate of 18 years 8 months. The Juvenile Justice Act, 2015 is
applicable
3 Whether the crime is one which falls in the rarest of the rare category or not?
No , because “rarest of rare doctrine” is applicable to rarest of the rare cases. There is
no strait-jacket formula for the application of the ‘rarest of rare doctrine’. In a criminal
case, the trial consists of two main essentials i.e., the nature and the gravity of the crime.
Based on the two essentials the magnitude of the punishment can be carved out. The
Judicature of India is under a commitment to find some kind of harmony among
aggravating and mitigating conditions on one hand and cry of the general public on the
other and also to add the grounds should be remarkably sound so that there is no option left
other than death penalty.
 ARGUMENT ADVANCED

ISSUE 1-WHETHER THE SPECIAL LEAVE PETITION FILED BY THE

APPELLANTS AGAINST THE JUDGMENT OF THE HON'BLE HIGH COURT
MAINTAINBLE?
THE SPECIAL LEAVE PETITION IN MAINTABLE
1) The special leave petition files by the Appellants is maintable.
Yes Article 136 does not confer a right of appeal on any party but it confers a discretionary
power on the Supreme Court to interfere in suitable cases.
Article 136 Notwithstanding anything contained in Chapter IV of the Constitution, the
Supreme Court may in its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal, except in relation to any court or tribunal constituted by or under any law
relating to the armed forces. Article 136 does not confer a right of appeal on any party but
it confers a discretionary power on the Supreme Court to interfere in suitable cases. The
jurisdiction conferred by Article 136 is divisible into two stages; first stage is upto the
disposal of prayer for special leave to file an appeal and the second stage commences if
and when the leave to appeal is granted and special leave petition is converted into an
appeal. Under Article 136, the Supreme Court may reverse, modify or affirm the judgment,
decree or order appealed against while exercising its appellate jurisdiction and not while
exercising the discretionary jurisdiction disposing of petition for special leave to appeal.
The doctrine of merger, therefore, applies to the former and not to the latter. Once leave to
appeal has been granted and appellate jurisdiction of Supreme Court has been invoked, the
order passed in appeal would attract the doctrine of merger; the order may be of reversal,
modification or merely affirmation. On an appeal having been preferred or a petition
seeking leave to appeal having been converted into an appeal before the Supreme Court,
the jurisdiction of the High Court to entertain a review petition is lost thereafter, as
provided by sub-rule (1) of Rule (1) of order 47 of the code.

In the case of Mast Ram Tiwari vs State Of U.P. & 3 Others Hon'ble Dilip B Bhosale,
Chief Justice Hon'ble Shashi Kant Gupta, J Hon'ble Suneet Kumar, J (Per Dilip B Bhosale,
Chief Justice) The question referred to this Bench is, whether the limitation for filing an
appeal at the instance of the victim or the first informant is 60 days from the date of
acquittal as laid down under Section 378 (5) of the Code of Criminal Procedure, 1973 (for
short, 'CrPC') or 90 days as reported by the Stamp Reporter pursuant to the judgment of a
coordinate Bench of this Court in Nanhey Singh @ Dinesh Singh Vs. State of U.P. & Ors.,
Criminal Misc. Application Defective U/S 372 CrPC (Leave to Appeal) No. 83 of 2013,
decided on 22.07.2013.

"Proviso to section 372 Cr.P.C. has been added by the Legislature through the Amending
Act No.5 of 2009. Proviso to section 372 Cr.P.C. does not have the retrospective effect.
There is no period of limitation prescribed for the filing of an appeal by a victim under the
proviso to Section 372. Thus it is well established that a reasonable period would have to
be inferred from the statutory provisions. If no period of limitation has been prescribed,
statutory authority must exercise its jurisdiction within a reasonable period. What shall be
the reasonable period would depend upon the nature of the statute, rights and liabilities and
other relevant factors. In the absence of any period of limitation it is settled that every
authority is to exercise the power within a reasonable period. What would be reasonable
period would depend upon the facts of each case.

The Division Bench, while making reference, also connected another appeal filed by the
Government, bearing Government Appeal No. 6071 of 2017 (State of U.P. Vs. Keshav
Savita & Anr.), observing that quite similar and debatable question is raised in the said
appeal also. It is in this backdrop, a larger Bench has been constituted for considering the
aforementioned question quoted in the first paragraph of this judgment.

1. We refer to Article 114 of the Limitation Act, which refers to Section 417 (2) of the Cr P
C, that, the Cr P C of 1988 and that is equivalent to present Section 378 Cr P C. In that
case the period is prescribed as 90 days, but the provisions under Section 372 Cr P C being
a new one, which was brought out by virtue of Amending Act No. 5 of 2009 and on
consideration of the very Article 114 of the Limitation Act, we find that it speaks of an
appeal from an order of acquittal and thereafter, makes categorization of different appeals
under different headings. We have to assume that the Legislature at the time of the
framing Article 114 of the Limitation Act in absence of the previous proviso to Section
372 Cr P C, had nothing before it to mention that particular provision as one of such
occasions on which the law of limitation shall be considered for computing the period of
limitation. But, the provision speaks of appeals against acquittal and we are of the opinion
that a period of 90 days should be applicable also to appeals under Section 372 proviso Cr
P C."
(emphasis supplied) It is against this backdrop, we have heard learned counsel for the
parties and, with their assistance, gone through the reference order, judgment in Nanhey
Singh's case, judgments of the Supreme Court and this Court relied upon by them and the
relevant provisions of CrPC and the Limitation Act. It is pertinent to note that both,
counsel appearing for the State and counsel appearing for the applicant, submitted that the
limitation for filing an appeal against the judgment of acquittal by the victim/informant
under Section 372 is 90 days, as has been rightly held by the Division Bench of this Court
in Nahney Singh's case. Learned counsel for the State and the applicant submitted that
there is no provision prescribing the period of limitation for such an appeal filed on behalf
of a victim under the proviso to Section 372 of CrPC. The period of limitation for an
appeal by the State Government or the Central Government against an order of acquittal is
90 days from the date of order appealed from by virtue of Article 114(A) of the Limitation
Act. It was further contended that the right of appeal against the order of acquittal by the
State and the victim cannot be discriminated. Then it was submitted that, where no period
of limitation is prescribed by the Statute, the Courts would have to infer a reasonable
period of limitation. Since 90 days' period is provided for the appeal by the State, the
period of 90 days, even for the appeal at the instance of victim, therefore, deserves to be
treated as reasonable period of limitation. In support of the submission, we were taken
through, by learned counsel for the parties, the relevant provisions of CrPC and the
judgments of the Supreme Court in State (Delhi Administration) Vs. Dharampal, AIR 2001
SC 2924; Lalu Prasad Yadav & Anr. Vs. State of Bihar & Anr., AIR 2010 SC 1561; Satya
Pal Singh Vs. State of M.P. & Ors., [2015 (91) ACC 955]; judgment of the Full Bench of
this Court in Manoj Kumar Singh Vs. State of U.P. & Ors., [2016 (97) ACC 861];
judgment of the Full Bench of Punjab and Haryana High Court in M/s. Tata Steel Ltd. Vs.
M/s. Atma Tube Products Ltd. & Ors., CRM-790-MA-2010 (O&M), decided on
18.03.2013, and Parmeshwar Mandal Vs. The State of Bihar & Ors., 2014 CrLJ 1046.

None appeared on behalf of the accused.

Before we proceed further, it would be relevant to notice certain provisions, which are
relevant for our purpose, to address the question. The word 'complaint' and the word
'victim' have been defined by clauses (d) and (wa) of Section 2 of CrPC, which read thus:

"(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a
view to his taking action under this Code, that some person, whether known or unknown,
has committed an offence, but does not include a police report.
Explanation.- A report made by a police officer in a case which discloses, after
investigation, the commission of a non-cognizable offence shall be deemed to be a
complaint; and the police officer by whom such report is made shall be deemed to be the
complainant;

(wa) "victim" means a person who has suffered any loss or injury caused by reason of the
act or omission for which the accused person has been charged and the expression "victim"
includes his or her guardian or legal heir;"

We are referring to these definitions, in view of the fact that these words are used
in Section 372 and Section 378 of CrPC, around which the arguments advanced by learned
counsel for the parties revolved. Section 372 in Chapter XXIX, which deals appeals,
provides that no appeal to lie unless otherwise provided. This Section was amended by Act
5 of 2009 with effect from 31.12.2009, whereby a proviso was added, conferring right to
the victim to prefer an appeal against an order of acquittal. It would be advantageous to
reproduce Section 372, which reads thus:

"372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgment
or order of a Criminal Court except as provided for by this Code or by any other law for
the time being in force:

Provided that the victim shall have a right to prefer an appeal against any order passed by
the Court acquitting the accused or convicting for a lesser offence or imposing inadequate
compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies
against the order of conviction of such Court."

Similarly, we are also concerned with Section 378, which provides for appeal in case of
acquittal. The provisions contained in Section 378, read thus:

"378. Appeal in case of acquittal. - (1) Save as otherwise provided in sub-section (2), and
subject to the provisions of sub- sections (3) and (5), -

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an
appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect
of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an
appeal to the High Court from an original or appellate order of an acquittal passed by any
Court other than a High Court [not being an order under clause (a)] or an order of acquittal
passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been
investigated by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, the Central
Government may, subject to the provisions of sub-section (3), also direct the Public
Prosecutor to present an appeal -

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of
a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any
Court other than a High Court [not being an order under clause (a)] or an order of acquittal
passed by the Court of Session in revision.

(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be
entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the
High Court, on an application made to it by the complainant in this behalf, grants special
leave to appeal from the order of acquittal, the complainant may present such an appeal to
the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an
order of acquittal shall be entertained by the High Court after the expiry of six months,
where the complainant is a public servant, and sixty days in every other case, computed
from the date of that order of acquittal.

(6) If in any case, the application under sub-section (4) for the grant of special leave to
appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie
under sub- section (1) or under sub- section (2)."
ISSUE 2- WHETHER ALL THE FACTS AND CIRCUMSTANCES HAVE
BEEN ANALYZED COMPETENTLY BEFORE DECIDING THE CASE?

No, There exit question of law.

Admissibility and acceptability of the dying declaration of the prosecutrix when

no names were spelt out:
Section 32(1) in The Indian Evidence Act, 1872

1 when it relates to cause of death. —When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person's death comes into question. Such
statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

Age of Dinesh was 17 years and 10 months as per Matriculation School Certificate
against medical certificate of 18 years 8 months.

The Juvenile Justice Act, 2015 is the major legal text on Child Protection in India. The
JJ Act guarantees the security, the protection, the education and the well-being of the
children in need in India.

Juvenile Justice(Care and Protection of Children) Act, 2000 defines “juvenile” or

“Child” as a person who has not completed eighteenth year of age.

 According to Article 37(a) of the Convention on the Rights of the Child, No child shall
be subjected to torture or other cruel, inhuman or degrading treatment or punishment [30].
This provision has not been mentioned under the JJA, 2000 and keeping in mind, the
sad and uncomfortable reality of child abuse, this provision has to be incorporated.

 Article 40 of the CRC mandates the state to incorporate certain basic guidelines for a
child in conflict with law, but the same has not been incorporated in the JJA, 2000.
Though CrPc and Constitution of India provide laws for the protection of children but
according to JJA, 2000 the laws must be made by the state, thus leaving space for the
state to do unjust and exploit the rights of the child.

 According to Article 40(3)(b) of the Convention, Human Rights and Legal safeguards
are fully respected while dealing with such children. The appointment of JJB consists of
 one magistrate and two social workers, which in majority can even overrule the
judgment of magistrate, it is not in compliance with the legal safeguards in India by
giving such powers to the social workers (who may not have the legal knowledge).

 According to Section 29[31] of the Act, the Government “may” form Child Welfare
Committee for the exercise of the powers. The use of the word “may” is a big mistake
because unless the making of rules is made compulsory, the execution of the act will
remain uncertain.

 According to Section 14[32] of the Act, the inquiry needs to be completed within 4
months from the date of the onset unless it is extended because of some special cases.
Here, the Act fails to justify the “special cases”, thus leaving the scope of arbitrariness
in the hands of Juvenile Justice Board (JJB).

 Section 23[33] of the Act defines for the punishment of cruelty done to the child. As the
punishment prescribed is not deterrent in nature. The potential of fine and punishment
needs to be increased so that it instills fear on the minds of the people.

 Section 63 of the Act provides for the Special Police Unit for the juveniles. But this is
nothing but a mere lip service because there is no guidelines mentioned regarding the
training of the police.
 There is a delayed registration of FIR
 Delay in filing report when their efforts failed and the deceased died they immediately
reported the incident to the police. The Court under the said circumstances ruled in fact
was a case of quick reporting to the police.
 Non mentioning of assailants in the FIR the effect at that the FIR does not contain the
names of all the accused persons is concerned.
 The description of the car
 The use of iron rods
 The victims Ex PW-1 were thrown out of the car not naming of the accused in FIR
 The involvement of the accused persons cannot be determined solely on the basis of what
has been mentioned in the FIR.
 Inconsistencies and omission amounting to contradictions in the testimony of PW-1
 The description of the car and the identity of the accused as regards the omission it is
contented by him that the said witness had not mentioned about the alleged use of rod in
the FIR he had been assaulted by the iron rods as per his subsequent statement yet the said
statement is wholly unacceptable since he had sustained only simple injuries.
 The omission in the statement of Pw-1 amount to contradiction in material particulars and
such contradiction go to the root of the case materially affect the trial or any case of the
prosecution the testimony of Pw-1 they submit.
 The evidence of PW-1 is assailed contending that he is not liable witness during cross
examination his evidence was assailed contending that ex PW-1/A is replete with
contradictions and inconsistencies there were lot of omission and contradictions.
 The testimony f PW-1 inter alia raised the contentions
 Non disclosure of the use of iron rod
 The names of the assailants in the MLC in Ex PW 51/A the testimony of the said witness
totally deserves to be totally discards.
 Recovery of the cars and other items an personal search and statements of disclosure
leading to recovery bald allegation that the Ex-PW-1 was falsely implicated false
implication theory.
 The material brought on record cannot be taken and since the item seized have been
planted at the places of recovery and contrived has been projected in the Court. The
recoveries are gravely doubtful in as much as the prosecution has not seized all the articles
from one accused on one occasion but an various dates. The instant case how the
recoveries have been proved by the unimpeachable testimony of the prosecution witness.
 The Admissibility and Acceptability of dying declaration of the prosecution when no
name were spelt out dying declaration has inconsistencies and cannot be relied upon the
feature on the part of the prosecution to disclose the name of the accused person in the
brief history given by her to the doctor, injuries caused to her and her friend but could not
give graphic details of the incidents. The dying declaration made by gestures itself is
illegal declaration was never recorded by judicial magistrate.
 Insertion of the iron rod in the rectum and vagina after rape by all the convicts.
 The prosecution has fabricated the story as regards the use of iron rods only to falsely
implicate all the accused in the death of the prosecutrix. There were no rods related
injuries in her uterus and medical science too does not assist the prosecution in their claim,
iron rods were used as a weapon for penetration if the doctors in the surgery team did not
find the uterus damaged then it cannot then it cannot be claimed rod was inserted
 There was no criminal conspiracy there was no common intention while deciding
sentencing. There is no conclusive evidence that all the accused participated equally in
the crime. Crime not pre-meditated there were no intention to cause her death and inserted
the iron rod in the vital parts of her body.
 Amar Singh Vs State Of Madhya Pradesh 1966 crls (MP) 1582 it was held by MP High
Court that without proof of mental or physical fitness the dying declaration was not
reliable.
 in consistent declaration inconsistent dying declaration is no evidentiary value.

 State of UP vs Madan Mohan the apex Court help that it is the for the Court to see that
dying declaration inspires full confidence as the maker of the dying declaration is not
available for cross examination certificate of doctor should mention that victim was in a fit
state of mind magistrate recording his own satistafaction about the fit mental condition of
the declarant was not acceptable specially if the doctor was available.

 Dying declaration should be recorded by the executive magistrate and police officer to
record the dying declaration only if condition of the deceased was so precarious that no
other alternative was left.

 dying declaration may in the form of question and answer written in the words of the
persons making the dying declaration.

 Kundala Bala Subrahmanyam Vs State of AP

 The Court cannot take the statement of dying declaration on oath from the declarant and
also the declarant cannot be subject cross examination. The statement are an exeption to
the hearsay rule because the reliability of the dying declaration based on the necessity
principle where the court has to scrutinize all the facts while arriving at a conclusion Thus
the court while relying upon the dying declaration to convict the accused satisfy itself that
the declarant must be in conscious state of mind and also capable of making the dying
declaration.

ISSUE 3- WHETHER THE CRIME IS ONE WHICH FALLS IN THE RAREST OF

THE RARE CATEGORY OR NOT?
No , because “rarest of rare doctrine” is applicable to rarest of the rare cases. There is
no strait-jacket formula for the application of the ‘rarest of rare doctrine’. In a criminal
case, the trial consists of two main essentials i.e., the nature and the gravity of the crime.
Based on the two essentials the magnitude of the punishment can be carved out. The
Judicature of India is under a commitment to find some kind of harmony among
aggravating and mitigating conditions on one hand and cry of the general public on the
other and also to add the grounds should be remarkably sound so that there is no option left
other than death penalty. Whether the crime is one which falls in the rarest of the rare
category or not?
No , because “rarest of rare doctrine” is applicable to rarest of the rare cases. There is
no strait-jacket formula for the application of the ‘rarest of rare doctrine’. In a criminal
case, the trial consists of two main essentials i.e., the nature and the gravity of the crime.
Based on the two essentials the magnitude of the punishment can be carved out. The
Judicature of India is under a commitment to find some kind of harmony among
aggravating and mitigating conditions on one hand and cry of the general public on the
other and also to add the grounds should be remarkably sound so that there is no option left
other than death penalty. In India, “rarest of rare” regulation is the measuring stick for
giving the death penalty. The Indian laws don’t hold a consistent point of view of the death
penalty yet neither do they deter it totally. Capital punishment in India has been limited to
the rarest of rare cases- like Section 121 (taking up arms against the state), Section 302
(murder), Section 364A (kidnapping with ransom), and so on of the Indian Penal Code
1860, recommend offenses culpable with the death penalty. The most widely recognized
cases including significant death row convicts are fear based oppression and assault cum
murder cases. The ‘rarest of rare doctrine’ can be divided into two sub-parts: Aggravating
circumstances and Mitigating circumstances- in case of aggravating conditions, the Judge
may on his will force capital punishment yet for Mitigating conditions, the Bench will not
grant capital punishment under rarest of rare cases. In Nathuram Godse v Crown
(Assassination of Mahatma Gandhi)- the instance of Nathuram Godse is the principal
instance of rarest of rare nature that occurred in free India. On the night of 30th January
1948, Nathuram Godse shot dead Mahatma Gandhi in a petition meeting at Birla Mandir in
Delhi. After a delayed preliminary, Justice Amarnath granted him capital punishment
which was collectively affirmed by the three adjudicators of Punjab High Court.

In Kehar Singh v Delhi Administration, the apex court affirmed capital punishment granted
by the trial court and kept up by High Court to the three appellants Kehar Singh, Balbir
Singh and Satwant Singh for planning conspiracy and attaining murder of Smt. Indira
Gandhi u/s 302, 120B, 34, 107 and 109 of IPC. The court held that the homicide is the
rarest of rare cases in which extraordinary punishment is called for a professional killer and
his schemers.
In the astonishing instance of Santosh Kumar Singh v Union Territory of Delhi (Mattoo
Murder case), however Santosh Kumar Singh was indicted for raping the person in
question and breaking each bone in her body his conduct was as yet not considered savage
enough to mark the case “rarest of rare”.

The detailing of rarest of rare, much the same as some other subject, isn’t liberated from
analysis by others. Numerous adversaries have called attention to a perspective on this
principle being vague and dependent upon different translations. A strong analysis
emerged from Justice Bhagwati himself who as he would like to think forewarned saying,
such a basis would offer ascent to a more noteworthy measure of subjectivity in dynamic
and would settle on the choice whether an individual will live happy on the organization of
the Bench. He fights the way that the life of a wrongdoer depending on the psyches of seat
is plainly violative of the Fundamental Rights revered in Article 14 and 21 of the Indian
Constitution.

It has likewise been contended that the choices corresponding to this regulation are given
subjectively. For example, when an individual, associating the loyalty with his better half
cut off her head and executed her, the Supreme Court had no uncertainty in ordering it as a
rarest of rare case and forcing death.

The choice in Amruta v. State of Maharashtra gets pertinent here, as a situation where the
court would not give demise in any event, when it included comparative realities as the
case previously mentioned. The court decided that a determined, heartless and ruthless
homicide of a young lady of extremely youthful age subsequent to submitting assault on
her without a doubt fell in the classification of rarest of rare.

But in Kumudi Lal v. State of U.P, which is likewise a case including assault and murder
of a fourteen-year-old young lady, the court wouldn’t affirm capital punishment. In Amrit
Singh v. State of Punjab, a young lady was fiercely assaulted. She passed on in this manner
because of exorbitant dying. Both the District and High court indicted the condemned
under section 302 and condemned him to death. In any case, the Supreme Court held that
the demise was not deliberate however the assault was severe.

The lawfulness of capital punishment was solicited just because under the watchful eye of
the Apex court on account of Jagmohan Singh v State of Uttar Pradesh. Section 302 of IPC
was tested as violative of Article 14, 19 and 21 of the Constitution. The Court maintained
the sentence of death as constitutional and held that considerably subsequent to expecting
that right to life is the establishment stone of the opportunity identified under Article 19
and that no law can be sanctioned which removes the life of an individual except if it is
sensible and out in the open intrigue. In this way, it is hard to hold that death penalty as
such was outlandish or not required in broad daylight intrigue. In the event that the whole
strategy for a criminal preliminary under the CRPC for showing up at a sentence of death
is legitimate then the inconvenience of capital punishment as per the technique built up by
law can’t be supposed to be illegal.

It was contended that the Supreme Court in Maneka Gandhi v Union of India, has given
another interpretative measurement to Articles 14, 19 and 21, and their interrelationship in
each law of reformatory confinement both in its procedural and considerable viewpoint
must breeze through the assessment of every one of the three articles. In any case, the
Court dismissed this argument. It was held that Article 19 not at all like Article 21, doesn’t
manage the right to life and individual freedom and isn’t appropriate for making a decision
about the lawfulness of the arrangements of Section 302 IPC. As respects Article 21, it was
perceived that in the said article, the establishing fathers perceived the privilege of the
State to deny an individual of his life or individual freedom as per just, reasonable, sensible
and fair technique set up by law, and there are a few signs in the Constitution which show
that the Constitution producers were completely discerning of the presence of capital
punishment, for example, Entries 1 and 2 in List II, article 72(1)(c), article 161 and article
34.

The Doctrine of Rarest of Rare came up on account of Bacchan Singh v. State of Punjab.
The Supreme Court, for this situation, tried to remove a precept especially for offences at
fault with death to diminish the uncertainty for courts in regards to when to go for the most
elevated discipline of the land. By most of 4:1, the defendability of capital punishment was
maintained by the Supreme Court and a rule was set out that capital punishment must be
encircled distinctly in the rarest of rare cases. However, the extent of this expression was
left unclear.

The Ratio Decidendi of Bacchan Singh’s case is that capital punishment is sacred in the
event that it is endorsed as an option for the offence of homicide and if the ordinary
sentence recommended by law for homicide is detainment forever. This implies capital
punishment must be forced on rarest of rare cases where an elective choice is avoided.

Afterward, on account of Machhi Singh v. State of Punjab the court attempted to set down
rules for surveying whether wrongdoing fell into the class of rarest of rare.

In the Macchi Singh’s case, the court set out specific standards for surveying when a case
could fall under the ambit of rarest of rare.

The models are investigated as beneath:

1. Way of commission of homicide- when the homicide is submitted in an incredibly

fierce, detestable, revolting, or unforgivable way in order to stir exceptional and
extraordinary anger of the network; for example,

2. When the victim’s house is determined to fire with the aim to prepare him alive.

3. At the point when the casualty is tormented to cruel acts so as to realize his/her
passing.

4. At the point when the body of the casualty is ravaged or cut in pieces in a ruthless
way.

5. Rationale in the commission of homicide When all out evil and savagery are the
thought processes behind a homicide.

6. Socially despicable nature of the wrongdoing: When a homicide of an individual

having a place with one of the regressive classes is submitted.

7. Size of the wrongdoing when the extent of the wrongdoing is gigantic, for example,
in instances of numerous homicides.

8. Character of casualty of homicide When the homicide casualty is a blameless

youngster, a vulnerable lady or individual (because of mature age or sickness), an open
figure, and so forth.
For the situation of Santosh Kumar Bariyar v. State of Maharashtra, the Supreme Court
decided that, the rarest of rare decree fills in as a rule in upholding Section 354(3) and sets
up the arrangement that life detainment is the standard and demise discipline is an
exception. Section 303 of the Indian Penal Code commanded capital punishment for all
guilty parties carrying out an actual existence punishment. This segment was struck down
as being held illegal. The year 2008 represented the instance of Prajeet Kumar Singh v.
State of Bihar, wherein the court governed precisely on what might comprise a rarest of
rare case.

The Court held that a capital punishment would be granted just, when a homicide is
submitted in a very ruthless, unusual or obnoxious way in order to excite serious and
extraordinary irateness of the community.
 PRAYER

Therefore, in the light of facts stated, issues raised, authorities cited, argument advances, it is
humbly prayed before the THE HON'BLE SUPREME COURT OF INDIA be pleased and
declared that,
1. The special leave petition filed by the Appellants against the judgment of the
Hon'ble high court maintainable, under Article 136 does not confer a right of appeal
on any party but it confers a discretionary power on the Supreme Court to interfere
in suitable cases.

2. Age of Dinesh was 17 years and 10 months as per Matriculation School

Certificate against medical certificate of 18 years 8 months. The Juvenile Justice
Act, 2015 is applicable, Dinesh should not be given maximum sentence.

3. As it is not the rarest of the rare category, death sentence should be revoked.

And pass any order, decree, judgement as this Hon’ble Supreme Court may deem fit in the
lightof justice, equity and good conscience.

For this act of kindness, the Appellant shall be duty bound forever pray.