Criminal Memorial : Appellant Side

Aligarh Muslim University

Faculty of Law

Moot Court Assignment

Submitted to: Prof. Hashmat Ali Khan

Author: Rajat Kumar Singh

Semester: X sec: B
17BALLB 59
Group III
Enrollment No. – GI0465

Mail id: rajatkrsingh2311@gmail.com

Mob. No. 9568533357
Session-2021-22
 Before

THE HON’BLE SUPREME COURT OF INDIKA

UNDER ARTICE 136 OF THE INDIAN CONSTITUTION

SPECIAL LEAVE PETITION (Cri.) NO .................... /OF 2014

IN THE MATTER OF

NED & DVR ........................................................................................... APPELLANTS

Vs.

STATE OF BRAVOS ................................................................................ RESPONDENTS

COUNSELS APPEARING ON BEHALF OF APPELLANTS NED AND DVR

 TABLE OF CONTENT

INDEX OF AUTHORITIES .................................................................................................. V

STATEMENT OF JURISDICTION ................................................................................ VIII

STATEMENT OF FACTS ................................................................................................... IX

ISSUES RAISED .................................................................................................................. XI

SUMMARY OF ARGUMENTS ......................................................................................... XII

ARGUMENTS ADVANCED .............................................................................................. XV

PRAYER ............................................................................................................................ XXX

1. The Appeal filed by the Appellants is Maintainable under Art. 136 of the Indian

Constitution............................................................................................................ XV
There is substantive question of law of general public importance.
There is substantial and grave injustice.

2. The Case of the Appellant No. 1 (NED) is liable to be remanded back to the
Juvenile Board Committee ............................................................................... XVIII
There is Violation of provisions of Juvenile Justice Act, 2000 and Juvenile Justice Rules, 2007

3. The Punishment of the Appellant No. 2 (Ujwal Purohit) should be suspended

……………………………………………………………………………..……...XXX
In the present case evidence pertaining to the common intention among appellants.1 and 2 is
absent.
There is no evidence relating to the planning or meeting of minds between both the
appellants.
 LIST OF ABBREVATIONS

Abbreviation Meaning
& And
Crim.L.J. Criminal Law Journal
S.C.C. Supreme Court Cases
A.I.R. All India Record
Cr. PC Criminal Procedure Code
v. Versus
IPC Indian Penal Code
JJ Act Juvenile Justice (Care and Protection) Act, 2000
JJ Rules Juvenile Justice (Care and Protection) Rules, 2007
JB Juvenile Justice Board
w.e.f With Effect From
Vol. Volume
Ed. Edition
i.e., That Is
Id. Ibid
L.J. Law Journal
Cri Criminal
No. No.
Art. Article
JBC Juvenile Board committee
SC Supreme Court
HC High Court
U/s. Under Sections
Sec. Section
IPC Indian Penal Code
Govt. Government
 Ltd. Limited
A.L.D. Andhra Legal Judgments
JBC Juvenile Board Committee
M.P. Madhya Pradesh
U.P. Uttar Pradesh
H.P. Himachal Pradesh
DVR. Another
Ors. Others
S.C.R. Supreme Court Reporter
Supp. S.C.R. Supplementary Supreme Court Reporter
M.L.J. Madras Law Journal
ALL CC Allahabad Criminal Cases
A.L.J. Allahabad Law Journals
Cal. Calcutta
D.L.T. Delhi Law Times
I.L.R Indian Law Reports
J.L.J. Jabalpur Law Journals
S.C.A.L.E. Supreme Court Almanac
 INDEX OF AUTHORITIES

CASES REFERRED AND CITED:-

1. A.V. Papayya Sastri v. Govt. of A.P., A.I.R. 2007 SC 1546 : (2007) 4 S.C.C. 221
2. Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 S.C.C. 120
3. Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., A.I.R. 1950 SC 750 : (2005) 3 S.C.C.
241
4. Diwan Bros. v. Central Bank of India., A.I.R. 1976 SC 1503.
5. East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) S.C.C. 29
6. Pawan Kumar v. State of Haryana, (2003) 11 S.C.C. 241
7. C.C.E v Standard Motor Products, (1989) A.I.R. 1298 (SC)
8. Amit v. State of U.P., 1998 (2) ACC 850 : 2002 Cri.L.J. 1248 (All)
9. Mehmood Khan v. State, 2002 Cri.L.J. 2123 (Raj.)
10. Hari Ram v. State of Rajasthan, (2009) 13 S.C.C. 211
11. Daya Nand v. State of Haryana, (2011) 2 S.C.C. 224
12. Sakha Ram v. State of M.P., 1992 JIC 325 (SC)
13. Krishnan v. State, (2003) 7 S.C.C. (Cri) 1577
14. Girja Shankar v. State of U.P., (2004) 3 S.C.C. 793: 2004 S.C.C. (Cri) 863
15. Suresh v. State of U.P., (2001) 3 S.C.C. 673 : 2001 S.C.C. (Cri) 601;
16. Jai Bhagwan v. State of Haryana, (1999) 3 S.C.C. 102
17. Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 S.C.C. 428 : 1999 S.C.C. (Cri) 1452
18. Pradeep Kumar v. Union of Admn, (2006) 10 S.C.C. 608 : A.I.R. 2006 SC 2992 :
2006 Crim.L.J. 3894
19. Ramaswamy Ayyangar v. State of Tamil Nadu, (1976) 3 S.C.C. 779 : 1976 S.C.C. (Cri) 518
20. Ghanshyam v. State of U.P., A.I.R. 1983 SC 193 : 1982 S.C.C. (Cr) 449
21. Sanghara v. State, 1994 S.C.C. (Cr) 163: 1994 Crim.L.J. 1098
22. Palanisamy v. State, (2006) 10 S.C.C. 297
23. Abdul Sayeed v. State of M.P., (2010) 3 S.C.C. (Cri) 1262
24. Pandurang v. State, A.I.R. 1955 SC 216: 1955 Crim.L.J. 572
25. Kashmira Singh v. State, A.I.R. 1994 SC 1651 : 1995 Supp (4) S.C.C. 558
26. Amrit Singh v. State of Punjab, 1972 Crim.L.J. 465 SC
 BOOKS REFERRED:-
1. 2 R. N. CHOUDHRY, LAW RELATING TO JUVENILE JUSTICE IN INDIA (R. P. Kataria &

2. S. P. SEN GUPTA, SARKAR & JUSTICE KHASTGIR ON INDIAN PENAL CODE, 1860 (Kamal

3. 1 S. C. SARKAR, THE INDIAN PENAL CODE, 1860 (Dwivedi Law Agency Allahabad eds.,
Abridged Concise ed. 2007)
4. 2 S. C. SARKAR & P. C. SARKAR, Sarkar: THE CODE OF CRIMINAL PROCEDURE, 1973
(LexisNexis eds., Sudipto Sarkar ed. 2015)
5. B. M GANDHI, INDIAN PENAL CODE, 1860 (2nd ed. 2006)
6. K. K. IYENGAR, COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE, 1973 (2nd ed.
2011)
7. K D GAUR, CRIMINAL LAW CASES AND MATERIALS (4th ed. 2005)

STATUTES REFERRED:-
1. INDIAN PENAL CODE, ACT NO. 45 OF 1860
2. CODE OF CRIMINAL PROCEDURE, ACT NO. 2 OF 1974
3. INDIAN EVIDENCE ACT, ACT NO. 1 OF 1872
4. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, ACT NO. 56 OF 2000
5. JUVENILE JUSTICE RULES, 2007
6. THE CONSTITUTION OF INDIA

WEBSITES REFERRED:-
1. Manupatra, http://www.manupatrafast.in
2. LexisNexis, http://www.lexisnexis.com
3. Westlaw, http://www.westlaw.com
4. Oxford Dictionaries, http://www.oxforddictionaries.com
5. Supreme Court of India, http://www.judis.nic.in
6. The Law Dictionary, http://www.thelawdictionary.org
7. Supreme Court Cases, http://www.courtnic.nic.in
 LEGAL DICTIONARIES:-
1. BLACK’S LAW DICTIONARY 712
2. WILLIAM P. STATSKY, LEGAL THESAURUS DICTIONARY
3. DR. KATHEY ROONEY, BLOOMSBURY CONCISE ENGLISH DICTIONARY
4. CATHERINE SOANES & ANGUS STEVENSON, CONCISE OXFORD ENGLISH DICTIONARY
 STATEMENT OF JURISDICTION

THE APPELLANTS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF INDIKA, THE MEMORANDUM FOR THE APPELLANTS
UNDER ART.1361 (SPECIAL LEAVE PETITION) OF THE INDIAN
CONSTITUTION IN THE INSTANT MATTER OF NED & DVR. v. STATE OF
BRAVOS.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS.

1
Special Leave to appeal by the Supreme Court -
1. Notwithstanding anything in this chapter, 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 in the territory of India.
2. Nothing in this clause (1) shall apply to any judgment, determination, sentence, or order passed or made
by any court or tribunal constituted by or under any law relating to the armed forces.
 STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are
Summarized as follows:

On 21st August 2014, The Appellants NED and Ujwal Purohit have approached the Hon’ble
Supreme Court of INDIKA for the remanding of the case to the Juvenile Board and
Suspension of the punishment respectively.

History of the Case:-

1. NED is 17 years old boy who is an orphan brought up at Bosconet INDIKA, a government
funded orphanage in the vicinity of District Guradom, BRAVOS State, in the Republic of
INDIKA. The Orphanage is Controlled and administered by the government of INDIKA
and was maintained by Mr. K Raju.
2. NED being orphan he is very Stoic and Introvert and has never been found in the
company of studious orphans. Ujwal Purohit is 15 years old and son of Mr. K Raju.
3. On 13th March, 2015, when only NED and Ujwal Purohit were there in the orphanage with
the security guards, they planned to visit an exhibition organized by some NGO in the
nearby village. Since the warden and other authorities were not present at the
orphanage and couldn’t have been contacted, the security guards refused them to go
outside.
4. Ujwal Purohit being shrewd and crook persuaded NED to come along and climb the wall
of the orphanage and accompanies him for the exhibition. Both without coming into the
notice of the security guards climbed the wall and ran away.
5. In the exhibition Ujwal Purohit had a quibble with a child named Mohan to buy the same
toy gun. The quibble turned into a quarrel and then into a fight, NED accompanied Ujwal
Purohit and took an iron rod and aggressively stroked on the head of the due to which he got
fainted.
6. Ujwal Purohit understanding the circumstances fled from the place immediately but NED
was caught as he kept standing over there. He was given to the police and was arrested
 under the charge of murder and Mohan was taken to the nearby hospital.
7. After two days of head injury Mohan died. After three days of death of Mohan, Ujwal was
also arrested from the Bosconet INDIKA.
8. Medical Evidence was given that Mohan received head injury along with permanent
dislocation of jaw and the head injury was sufficient to cause the death of a person of that
age i.e., 18 years in ordinary course of nature.
9. On 8th June, 2014 Juvenile board found NED to be well aware of the circumstances and
consequences of his act therefore committed his case to the Sessions Court, finding him cap
ax of committing the crime.
10. Both were tried separately under U/s 304/326 read with Sec. 34 of IPC, 1860. Ujwal Purohit
was tried by Juvenile Board, Guradom and NED was tried by the Sessions Court, Guradom.
11. NED submitted to the Court that it has no jurisdiction to try his case him being a juvenile
and his case should be remanded back but his submission was rejected due to insufficiency
of evidence of age.
12. On 30th July, 2014 Juvenile Board, Guradom found Ujwal Purohit guilty under U/s 304/326
read with Sec. 34 of IPC, 1860 and directed him to be sent to Special Home for a maximum
period of one and half year.
13. Later on that day an appeal was preferred seeking suspension of punishment against the
judgment of Juvenile Board, which was dismissed by the Sessions Court on the ground that
the Juvenile Board has proved the case beyond reasonable doubt based on circumstantial
and medical evidence and no other question of law was raised by the Appellant in the appeal.
14. A petition under Sec. 482 of Cr. PC, 1973 was filed in the High Court by NED seeking
remanding back of the case to the Juvenile Board since the board has erred the case due to
insufficiency of evidence and Sessions Court is causing abuse of process of law as it has no
jurisdiction to try his case. Another petition was filed by Ujwal Purohit for review of the
order of the Sessions Court.
15. Both the petitions were dismissed by the High Court, on the ground that convict being Capax
of committing the crime and the conduct of the accused reflects intention to commit crime
in the case of NED and that the petition lack merits in the case of Ujwal Purohit.
 ISSUES RAISED

The following questions are presented for adjudication in the instant matter:

1. WHETHER THE APPEAL FILED BY THE APPELLANTS UNDER ART. 136 OF

THE INDIAN CONSTITUTION IS MAINTAINABLE.

2. WHETHER THE CASE OF THE APPELLANT NO. 1 IS LIABLE TO BE

REMANDED BACK TO THE JUVENILE BOARD COMMITTEE.

3. WHETHER THE PUNISHMENT OF THE APPELLANT NO. 2 BE SUSPENDED.

 SUMMARY OF ARGUMENTS

1. WHETHER THE APPEALS FILED UNDER ART. 136 OF THE INDIAN

CONSTITUTION ARE MAINTAINABLE.

A. The counsel humbly submits that the appeals filed under Art. 136 of the Indian constitution
are maintainable. This Art. confers a plenary jurisdiction upon the court in the widest terms
possible. It is contended that the jurisdiction of the Hon’ble Court can always be invoked
whenever there is a flagrant violation of any law or whenever there is any general question
of public importance even a question fact can also be a subject matter under this Art. . In the
present case there was violation of Sec. 7 (A) and Rule 12 of the JJ Act, 2000 and JJ Rules,
2007 respectively which has raised a general question of public importance and also has
caused substantial and grave injustice.
B. The jurisdiction conferred upon the Hon’ble court under Art. 136 is a corrective one and
not a restrictive one. In the present case appeals filed under Art. 136 of the Indian
Constitution give rise to substantive question of law which is involved in the present case.
Even if we assume that no such questions of law are involved still the jurisdiction of the
Hon’ble court can be invoked under this Art. Since it gives it the widest ambit to deal with
the cases due to the use of words “in any cause or matter”. In the present case the Sessions
court has not conducted inquiry to inquire about the age of the juvenile (NED). Thus,
causing flagrant violation of provisions mentioned in the JJ Act, 2000 and the JJ Rules,
2007 giving rise to a question of general public importance. It is contended that when a
decision shocks the conscience of the court, its jurisdiction can always be invoked. The
Hon’ble court has also held the court would never do injustice nor will allow injustice to
be perpetrated for upholding the technicalities caused by the various bodies doing justice.
C. In the present case both the juveniles were charged U/s 304/326 of the IPC, 1860 but were
tried separately one under the Juvenile Board and the other in the Sessions Court thus
causing injustice. It also a well established fact that a juvenile cannot be tried on the basis
of his mental capacity which in the present case has been done by the various justice giving
bodies. It is contended that in the present case there is substantial and grave
 Injustice caused to the juvenile NED. Thus, considering all the above mentioned facts
and authorities it is contended that the appeal filed under Art. 136 are maintainable.

2. WHETHER THE CASE OF THE APPELLANT NO. 1 IS LIABLE TO

BE REMANDED BACK TO THE JUVENILE BOARD COMMITTEE.

The Counsel humbly submits before the Hon’ble Court that the case of Appellant No.-1
should be remanded back to the juvenile board. This can be contended on the basis the main
aim behind the formation of the juvenile justice act is keeping the technicalities out of the
way and acting in the best interest of juvenile so that justice is served to him. In the present
case, the conduct of courts shows that there is flagrant violation of provisions regarding the
assembling of proper evidence pertaining to age of the appellant no.1. Whereas in the case
of JBC, the fact sheet remains silent about the evidences gathered at this stage, and the
judgment pronounced by the JBC show that its decision in the case of appellant no. 1 is on
the basis of his mental capacity rather than ruling factor mentioned in the JJ Act, 2000 and
the JJ rules, 2007 of also on the basis of the principle of presumption of age of innocence
under JJ Rules, 2007 the case of the appellant no. 1 is liable to be remanded back to the JBC.
At the sessions court there is flagrant violation of the rule 7(A) of the JJ Act, 2000, where
the Appellant sets up a claim of his juvenility but nothing is by the Sessions court in order to
inquire about his age. It is thus contended that there is serious abuse of rule of law and also
the abuse of power by the Sessions court.

3. WHETHER THE PUNISHMENT OF APPELLANT NO. 2 SHOULD BE

SUSPENDED.

The counsel humbly submits that the punishment of appellant No. 2 be suspended. It can be
contended on the basis of direct as well as circumstantial evidences which are not able to prove
the factor of application of Common intention in the present case. The fact that the appellant
No. 2 was just involved in a fight about a toy gun at the exhibition had nothing to relate to his
ultimate planned aim to be causing grievous hurt to the deceased i.e., Mohan. From the facts it
is evident that his actions during the committing of offence were merely due to his presence
when the appellant no. 1 committed the offence. It is further contended that fleeing of the
appellant from the crime site does not amount to any kind of planning and also
Does not amount to meeting of minds amongst the appellants, herein, planning being
an utterly important and decisive factor to invoke section 34 of IPC, 1860.
 ARGUMENTS ADVANCED

1. THE APPEAL FILED UNDER ART. 136 IS MAINTAINABLE.

The counsel humbly submits that the appeal filed under Art.1362 of the Indian constitution is
maintainable. This article confers on the Hon’ble Court in the widest possible terms, a
Plenary Jurisdiction exercisable outside the purview of ordinary jurisdiction to meet the
pressing demands of justice. It is contended that the jurisdiction of Supreme Court under
Art.1363 can always be invoked when a question of law of general public importance arises
and even a question of fact can also be a subject matter of judicial review under Art.136. The
article confers residuary power on SC to do justice where the court is satisfied that there is
substantial and grave injustice. In the present case there has been grave injustice caused to the
appellants, as the Sessions Court has omitted to follow the procedure as established by
the JJ Act, 20004 and the JJ Rules, 20075. Moreover, Sessions Court had no jurisdiction to try this
case, the accused being a juvenile i.e., below 18 years of age. It is further contended that even
where a statue provides for finality to its decisions, the power of Supreme Court under Art.
136 to grant special leave petition can still be exercised, which power cannot be taken away. 6

Mere existence of alternative relief is not a bar for granting leave under Art. 1367.

Under this article, Supreme Court shall have the power to grant special leave to appeal 8:

a) from any judgment, decree, determination, sentence or order;

b) in any cause or matter;

c) Passed or made by any court or tribunal in the territory of India.

2
Supra note 1
3
id
4
Juvenile Justice (Care and Protection) Act, 2000; w.e.f. April 1, 2001
5
Juvenile Justice (Care and Protection) Rules, 2007; w.e.f. October 26, 2007; w.e.f October 26, 2007
6
Diwan Bros. v. Central Bank of India, A.I.R. 1976 SC 1503.
7
East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) S.C.C. 29
8 th
5 Vol. Durga Das Basu, Commentaries on the Constitution of India, (8th Edition, 2009)
THERE IS SUBSTANTIVE QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE

The counsel humbly submits that in the present case the ‘substantial’ question of laws are
involved. A finding of facts may give rise to a substantial question of law, and therefore,
the SC is not precluded from going into the question of facts. Even if we assume that the
case doesn’t involve ‘substantial’ question of law, SC in the exercise of its power conferred
under Art.136 can entertain the present appeal. Art. 136 of the Indian Constitution use the
wording ‘in any cause or matter’9. This gives widest power to this
Hon’ble court to deal with any cause or matter, even if it involves question of fact. The
jurisdiction conferred upon the Supreme Court is corrective one and not a restrictive one 10.
Where there is either a flagrant violation of a mandatory provision of any statute
or any provision, a duty is enjoined upon the exercise of the same by setting right the
illegality in the judgment of the HC as it is well settled that illegality should not be allowed
to be perpetrated and failure by the SC to interfere with the same would amount to allowing
the illegality to be perpetrated11. It is contended that in the present case pre-
requisite and proper inquires were not conducted regarding the age of the accused i.e.,
NED and the impugned order were passed mechanically without application of JJ Act,
200012 and JJ Rules, 200713 which violates the mandatory provisions of the JJ Act, 2000
and the JJ Rules, 2007 by the competent authorities and hence, incorrect in law.

It is further contended that the Sessions court has not conducted the inquiry for the
determination of age of Appellant No. 1 (i.e., NED) in accordance with the procedure
mentioned in Rule 12 of the JJ Rules, 2007 which has given rise to a general question of
public importance. In Sec. 7 (A) of JJ Act, 2000 the procedure which is to be followed
when the claim for the juvenility is raised before any court is mentioned which is to be
followed by the competent authority. And, in Rule 12 of JJ Rules, 2007 the procedure for
the determination of age is provided which need to be followed while determining the age
of the juvenile when the claim of the juvenility is raised by the juvenile at any stage in the
trial or inquiry of the case. It has also been held by this Hon’ble court that when a
9
Supra note 1
10Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 S.C.C. 120
11Pawan Kumar v. State of Haryana (2003)11 S.C.C. 241 ; See also, Durga Das Basu, Commentaries on the
Constitution of India, 5th 5528 at 5755 (8th Edition, 2009)
12Supra note 4

13Supra note 5
 question of general public importance arises, or a decision shocks the conscience of the
court, its jurisdiction can always be invoked. The Hon’ble court has also held the court
would never do injustice nor will allow injustice to be perpetrated for upholding the
technicalities14.
Hence, considering all the above authorities, it is humbly submitted before the Hon’ble
court that the present matter involves a question of law of general public importance and
therefore, the appeal is maintainable under Art.136 of the Indian Constitution.

THERE IS SUBSTANTIAL AND GRAVE INJUSTICE

The counsel humbly submits that in the present case there is substantial and grave injustice.
It is contended that in the present case both the Appellants (i.e., NED and Ujwal Purohit)
were juveniles and were charged U/s 302/326 read along with Sec. 34 of the IPC, 1860 15.
As the both of them were juveniles they should have been tried in the
JBC but both of them were tried separately i.e., Appellant no. 1 (NED) was tried in the
JBC whereas Appellant No. 2 (Ujwal Purohit) was tried in the Sessions Court. Thus, the
competent authority had caused the abuse of power. Also further, the juvenile board
transferred the case of accused (NED) finding him Capax of committing the crime which
implies that his case was transferred to the JBC on the basis of his mental capacity to
commit the crime which is bad in law. It is a well established principle that a juvenile
cannot be tried on the basis of mental capacity in the Sessions Court. Thus, causing
substantial and grave injustice by violating the well established principle.

The counsel further contends that Art.136 of the Indian Constitution is the residuary power
of SC to do justice where the court is satisfied that there is injustice. Thus, considering all
the above authorities, it is humbly submitted before this Hon’ble court that in the present
case there is substantive and grave injustice caused to the Appellants and hence, the appeal
is maintainable under Art.13616 of the Indian Constitution.

14
C.C.E v Standard Motor Products (1989) A.I.R. 1298 (SC)
15
The Indian Penal Code, 1860; w.e.f., October 6, 1860
16
Supra note 1
2. THE CASE OF APPELLANT NO. 1 SHOULD BE REMANDED BACK
TO JUVENILE BOARD COMMITTEE.

The counsel most humbly submits that the case of Appellant no. 1 (i.e., NED) should be
remanded back to the JBC him being a juvenile17. It is evident from the fact sheet that the
age of Appellant no. 1 (i.e., NED) was 17 years. It is contended that the Sessions court has
rejected the submission18 made by the juvenile regarding his age in the court saying that
there was insufficiency of evidence of age. Even if we assume that there was insufficiency of
evidence regarding the age of the Appellant No. 1 (i.e., NED), the court should have
followed the procedure mentioned in JJ Act, 200019 read along with Rules mentioned in JJ
Rules, 200720 for determining the age of juvenile when the claim for the juvenility was raised
by him in the Sessions Court, so that the court would have arrived at the correct conclusion and
the justice would have been served to the Juvenile. It is further contended that
under sub-section (2) of the Sec. 7 of JJ Act, 2000 the competent authority is required to hold
the inquiry as if the juvenile had originally been brought before it. Thus, whenever a plea is
taken by an accused that he is a juvenile then the competent court dealing with such case is
required
to record his/her opinion on such plea 21. In the present case if the competent court would have
held the inquiry then it must have not come to the conclusion that there are insufficient
evidences because the Rule 12 of the JJ rules, 2007 accommodates all the procedure which is
sufficient enough to reach to the conclusion in finding the age of a juvenile in conflict with
law. It is therefore contended that the Sessions court has caused miscarriage of justice by
omitting to do inquiry in determining the age of the juvenile due to which justice has not
been served to the Appellant No. 1 (i.e., NED). The counsel would further base its argument
that there was flagrant violation of the provisions of JJ Act, 200022 and the Provisions of the
JJ Rules, 200723 and hence the case is liable to be remanded back to the JBC.

17Section 2 (K) of JJ Act, 2000 defines Juvenile as – “juvenile” or “child” means a person, who has not
completed eighteen years of age.
18Submission made by Appellant No. 1 in the Sessions Court - the court has no jurisdiction to try his case, him
being a juvenile.
19 Supra note 4
20
Supra note 5
21
Amit v. State of U.P.; 1998 (2) ACC 850 : 2002 CriLJ 1248 (All)
22Supra note 4

23Supra note 5
VIOLATION OF PROVISIONS OF JJ ACT, 2000 AND THE PROVISIONS OF JJ RULES, 2007

The counsel humbly submits that the Sessions court has caused abuse of power by violating
Sec. 7 (A) of JJ Act, 2000 which is a mandatory provision which is to be followed by all
courts in the territory of India, whenever a claim of juvenility is raised before them. It is
contended that Sessions judge has a power to conduct the inquiry to determine whether the
juvenile in conflict with law is a juvenile or not24.

The counsel seeks attention of the Hon’ble court on Section 7 (A) of JJ Act, 200025
which reads as – “Procedure to be followed when claim of juvenility is raised before
any court”
1. Whenever a claim of juvenility is raised before any court or a court is of the opinion
that an accused person was a juvenile on the date of the commission of the offence, the
court shall make an inquiry, take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and shall record a finding whether
the person is a juvenile or a child or not, stating his age as merely as may be:

Provided that a claim of juvenility may be raised before any court and it shall be
recognized at any stage, even after final disposal of the case, and such claim shall be
determined in terms of the provisions contained in this Act and the rules made there
under, even if the juvenile has ceased to be so on or before the date of commencement
of this Act.
2. If the court finds a person to be a juvenile on the date of commission of the offence
under sub-section (1), it shall forward the juvenile to the board for passing appropriate
order, and the sentence if any, passed by a court shall be deemed to have the effect.
Before proceeding further the counsel would also like to bring into light clauses (1), (2) and
(3) of Rule 12 of the JJ Rule, 2007 which read as – “Procedure to be followed in
determination of Age.”
1. In every case concerning a child or a juvenile in conflict with law, the court or the Board

24Law Relating to Juvenile justice in india, R.N. Choudhary, 2nd edition 2008

25 Inserted vide Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, Sec.8
 or as the case may be the Committee referred to in rule 19 of these rules shall determine the
age of such juvenile or child or a juvenile in conflict with law within a period of thirty days
from the date of making of the application for that purpose.
2. The court or the Board or as the case may be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance or documents, if available, and send him to
the observation home or in jail.
3. In every case concerning a child or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by
seeking evidence by obtaining –
A) (I) the matriculation or equivalent certificates, if available; and in the absence
whereof;
(AI) The date of birth certificate from the school (other than a play school) first
attended; and in the absence whereof;
(BI) The birth certificate given by a corporation or a municipal authority or a
Panchayat;
B) And only in the absence of either (I), (II) or (III) of clause (A) above, the medical opinionwill
be sought from a duly constituted Medical Board, which will declare the age of thejuvenile
or child. In case exact assessment of the age cannot be done, the Court or the Board or,
as the case may be, the Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by considering his/her age on
lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as
may be available, or the medical opinion, as the case may be, record a finding in respect of his
age and either of the evidence specified in any of the clauses (A) (I), (II), (III) or in the
absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or
the juvenile in conflict with law.

It is contended that even if we say that the inquiry was conducted by the Sessions Court to
determine the age of the juvenile based on the procedure mentioned in Sec. 7 (A) and by
following the Rule 12 of JJ Rules, 200726. But still the Sessions court is saying that there was
insufficiency of the evidence regarding the age of the Appellant no. 1 (i.e., NED), this can
only be said by the Sessions Court in two possibilities which are as –

[Possibility 1]
That the Sessions Court relied on the evidence produced before it under Rule 12 clauses (1),
(2) and Clause 3 Sub-clause (a) of JJ Rules, 2007, which is not so in the present case as there
is no mention of any evidence being produced before the Sessions Court regarding the age of
Appellant No. 1(i.e., NED), such as – Matriculation Certificate, Certificate of Date of Birth
from the school first attended, or the birth certificate given by a corporation or a municipal
authority.

[Possibility 2]
That the Sessions court did rely on the Clause 3 Sub- Clause (b) of JJ Rules, 2007 in the absence
of evidence under Clause 3 Sub – Clause (a) of the JJ Rules, 2007 but was not still satisfied and
went on to conclude that there was insufficiency of evidence of age. Clause 3 sub – clause (b)
of the JJ Rules, 2007 mentions about the medical test which is to be conducted by the JBC in
the absence of any document as mentioned in the Clause 3 Sub – Clause (a) of the JJ Rules,
2007 since the fact sheet is silent on the issue as to whether the evidences pertaining to the age
of Appellant were submitted to the Sessions Court therefore it can be concluded that the
Sessions Court must have gone to the last resort of conducting the medical inquiry of the
appellant, so that a conclusive decision would have come out and the age of the juvenile would
have been determined to overcome the insufficiency of the evidence. The medical inquiry is
also the part of procedure laid done in the Rule 12 of JJ Rules, 2007, But in the present case
there is no as such mention of the Medical Enquiry being done by the Sessions Court.
Therefore, it is safe to contend that medical enquiry was not conducted by the Sessions court
and the Sessions court has erroneously rejected the submission of the Appellant without going
into the intricacies of the case.

The Counsel further submits that in the case of delinquent juvenile the matter has to be
determined in totality i.e., in case of two views of the competent authority regarding the age of
juvenile and even after conducting the proper inquiries relating to his age the competent
26
Supra note 5
Authority still has two views regarding the same, medical evidence has to be considered and
the whole matter has to be decided in the totality27. In the present case the Sessions court has
not determined the matter in totality and also has omitted to do his duty of serving the justice
in accordance with the procedure established by the governing law. Therefore it can be
contended that the Sessions Court has violated the provision mentioned in Sec. 7 (A) of JJ Act,
200028 regarding the age of the juvenile which has to be followed by the Sessions court
while deciding case of the juveniles upon which a duty comes to decide the case.

It is contended that the Hon’ble Court in the case of Hari Ram v. State of Rajasthan29 held
that –
“Wherein the appellant was held to be a juvenile on the date of commission of the offence.
His appeal against his conviction was allowed and the entire case remitted to the Juvenile
Justice Board for disposal in accordance with law”

The Hon’ble court in the case of Daya Nand v. State of Haryana30, followed the judgment
delivered by the court in the case Hari Ram v. State of Rajasthan31 and directed the appellant
to be produced before the Juvenile Justice Board for passing appropriate orders in accordance
with the provisions of the JJ Act, 2000.

The sum and substance of the above discussion is that in the above mentioned cases the Hon’ble
court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board,
both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the
juvenile is found guilty of such offence due to the fact that the court find the accused to be a
juvenile on the commission of the crime. In the present case since there is no need to focus
whether the juvenile is guilty or not, the case is only concerned with the remanding back of the
case to the competent authority to try his case, him being a juvenile therefore it is submitted
before the Hon’ble court relying on the above mentioned judgments that the case of appellant
no. (i.e., NED) should be remanded back to the Juvenile Board Committee. Hence, the case of
the Appellant is liable to be remanded back to the Juvenile

27Mehmood Khan v. State, 2002 Cri.L.J. 2123 (Raj.)

28
Supra note 4
29(2009) 13 S.C.C. 211
30(2011) 2 S.C.C. 224
31Supra note 30
 Board Committee.

3. WHETHER THE PUNISHMENT OF APPELLANT NO. 2 SHOULD BE

SUSPENDED.
The counsel most humbly submits before the Hon’ble court that the punishment of Appellant
No. 2 (i.e., Ujwal Purohit) should be suspended as there is improper evidence to prove him
guilty U/s 30432/32633 read with Sec. 3434 of Indian Penal Code, 1860. It is contended that the
Appellant No. 2 (Ujwal Purohit) has been charged along with Appellant No. 1 (i.e., NED)
U/s 30435 / 32636 read with Sec. 3437 of the IPC, 186038 . The counsel further submits that
the decision taken by JBC in awarding the punishment to Appellant No. 2 U/s 304 / 326 read
with Sec. 34 of the IPC, 1860 and sending him to the remand home for a period of one and a
half years is not justified and is thus, incorrect in law. It is contended that criminal law has a
well settled principle which says that until and unless a person is proven guilty he stand innocent
in the eyes of law.

It is further contended that in the case of Sakha Ram v. State of M.P.39 the Hon’ble Court
held that –

“When the presumption of juvenile innocence is sought to be displaced by the

prosecution on the basis of circumstantial evidence the circumstances must

32
Sec. 304, I.P.C.,1860: Punishment for culpable homicide not amounting to murder: Whoever commits culpable
homicide not amounting to murder, shall be punished with [imprisonment f or life], or imprisonment of either
description f or a term which may extend to ten years, and shall also be liable to fine, if the act by which the death
is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description f or a term which may extend to ten years, or with fine, or with both, if
the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to
cause such bodily injury as is likely to cause death.

33
Sec. 326, I.P.C.,1860 : Voluntarily causing grievous hurt by dangerous weapons or means: Whoever, except in
the case provided f or by Section 335, voluntarily causes grievous hurt by means of any instrument f or shooting,
stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of
f ire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive
substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to
receive into the blood, or by means of any animal, shall be punished with [imprisonment f or life], or with
imprisonment of either description f or a term which may extend to ten years, and shall also be liable to fine.
34Sec. 34, I.P.C., 1860: Acts done by several persons in furtherance of common intention.--When a criminal act is done
by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same
manner as if it were done by him alone.
35 Supra note 30
36
Supra note 31
37
Supra note 32
38w.e.f October 6, 1860
391992 JIC 325 (SC)
 unmistakably prove the guilt beyond reasonable doubt.”
Thus, relying on the above judgment the counsel further submits before the Hon’ble court that
in the present case the circumstantial evidences and the circumstances pertaining to the
committing of the offence by the juvenile are not proved beyond reasonable doubt and thus, it
is contended that the presumption of innocence lies in favor of the Appellant no. 2 (i.e., Ujwal
Purohit) and hence he is innocent.

It is contended that the proof for common intention in the present case is seldom available. It
has to be derived from the facts of the case, surrounding circumstances and conduct of the
accused after the commission of crime. The Hon’ble court in the case of Krishnan v. State40
held that –

“The applicability of Sec. 34 is dependent on the facts and circumstances of each case.
No hard-and-fast rule can be made out regarding applicability or non-applicability of
Sec. 34.”

Thus, relying on the above judgment it is contended that in the present case there are no
circumstances or conduct by the Appellant No. 2 (i.e., Ujwal Purohit) which is proving that the
proof of common intention can be said to be seldom available. Even in the present case there
are no surrounding circumstances that can prove the case of Appellant No. 2 (i.e., Ujwal
Purohit) that his conduct reflects the commission of crime. Therefore, it is submitted to the
Hon’ble Court that there no such circumstances proving the mental intent of the accused beyond
reasonable doubt thus, his punishment should be suspended.

The Hon’ble Court followed in the case of Girja Shankar v. State of U.P.41 followed the
judgment delivered by it in the case of Krishnan v. State42 –

“Section 34 has been enacted on the principle of joint liability in the doing of a criminal
act. The Section is only a rule of evidence and does not create a substantive offence. The
distinctive feature of the Section is the element of participation in action. The liability of
one person for an offence committed by another in the course of criminal act perpetrated
by several persons arises under Section 34 if such criminal act

40(2003)7 S.C.C. (Cri) 1577

41(2004)3 S.C.C. 793: 2004 S.C.C. (Cri) 863
42Supra note43
 is done in furtherance of a common intention of the persons who join in committing the
crime. Direct proof of common intention is seldom available and, therefore such intention
can only be inferred from the circumstances appearing from the proved facts of the case
and the proved circumstances. In order to bring home the charge of common intention,
the prosecution has to establish by evidence, whether direct or circumstantial, that there
was plan or meeting of mind of all the accused persons to commit the offence for which
they are charged with the aid of Section 34, be it pre- arranged or on the spur of moment;
but it must necessarily be before the commission of the crime. The true concept of Section
is that if two or more persons intentionally do an act jointly, the position in law is just the
same as if each of them has done it individually by himself.”

Thus, relying on the above judgments it is contended that the present Sec. 34 is just a rule of
evidence and does not establish any offence in particular. Further it is contended that in the
present case there are no direct as well as circumstantial evidences which prove that the
Appellant no. 1 has committed the crime jointly and also that he participated in the crime which
is not so in the present case.

The Counsel, for further clarification of the Hon’ble Court, would rely on the judgment
delivered by the Hon’ble Court in the case of Suresh v. State of U.P.43 where the Hon’ble
Court held that –

“to attract section 34 IPC, 1860 two postulates are indispensible: (1) The criminal act
(consisting of a series of acts) should have been done, not by one person, but more than
one person; (2) Doing of every such individual act cumulatively resulting in the
commission of criminal offence should have been in furtherance of the common intention
of all such persons”.

The Counsel puts forth before the Hon’ble Court, a similar case of Jai Bhagwan v. State of
Haryana44 where it was again held by the Hon’ble Court that-

“To apply Section 34, of IPC, 1860 apart from the fact that there should be two or more
accused, two factors must be established: (i) common intention and (ii) participation of the
accused in the commission of an offence.”
43(2001)3 S.C.C. 673: 2001 S.C.C. (Cri) 601; Jai Bhagwan v. State of Haryana : (1999)3 S.C.C. 102
44(1999)3 S.C.C. 102
 Thus, relying on the above judgment it is contended that two factors laid down by the Hon’ble
court for the application of Sec. 34 are not accomplice in the present case since common
intention of the accused is not clearly inferable and further in the present case the Appellant
No. 2 only participated during the quibble, quarrel and fight between the deceased (Mohan)
and him but did not participated when Appellant No. 1 hit the deceased with the iron rod on
his head. Thus it is contended that both the factors are not fulfilled in the present case and
hence, the punishment of Appellant no. 2 be suspended.

Henceforth, the Counsel humbly submits furthermore contention for the clarity of the Hon’ble
court -

IN THE PRESENT CASE EVIDENCE PERTAINING TO THE COMMON INTENTION AMONG

APPELLANTS 1 AND 2 IS ABSENT:

“Common intention can be proved either from direct evidence or by inferring from the acts or
attending circumstances of the case and conduct of the parties 45.”Here the Counsel humbly
submits before the Hon’ble Court the facts of the case relating to the events that occurred when
the offence was committed by the accused does not seem to attract the application of Sec. 34 in
the present case. It is clearly mentioned that, “In the exhibition Appellant no. 2 (Ujwal Purohit)
had a quibble with a child of his peer named Mohan (son of a well known businessman) as both
of them wanted to buy the same toy gun.”. Thus, the main reason for the quibble between
Appellant No. 2 and Mohan was acquiring of the toy gun. This quibble turned out to progress
into a fight but the fact sheet remains silent about any kind of use of violence by the Appellant
No. 2 (i.e., Ujwal Purohit). The is also unable to showcase any intention on the part of
Appellant No. 2 of voluntarily causing any grievous hurt46 to the

deceased (i.e., Mohan). In the case of Rajesh Govind Jagesha v. State of Maharashtra47 the
Hon’ble Court that common intention may also develop during course of events. But, in the
present case nothing mentioned in the compels us to turn our thoughts towards the fact that
the fight had come to such a level that Appellant No. 2 decided to give a death blow to the
deceased. Thus, the Counsel submits that the acts of Appellant No. 2 confines only to the extent
of indulging into a fight and not voluntarily causing grievous hurt as complementary to
Appellant No.1 (i.e., NED) act.
45Pradeep Kumar v. Union of Admn: (2006) 10 S.C.C. 608: A.I.R. 2006 SC 2992: 2006 Crim.L.J. 3894
46Sec. 326, IPC, 1860
47(1999)8 S.C.C. 428: 1999 S.C.C. (Cri) 1452
Further, the Counsel seeks the kind attention of the Hon’ble Court on the fact that, “NED
accompanied Ujwal Purohit and took an iron rod and aggressively strike it on the head of
Mohan”. The Counsel here contends that in the act of accompanying, NED was the one who
came along and took an iron rod and aggressively struck it on the head of Mohan, without any
instigation or compelling or involvement by Appellant No. 2.Thus, it can be said that the
Appellant No. 2 was merely present there without getting involved in the act committed by
NED. Thus, relying on the judgment delivered by the Hon’ble Court in the case of
Ramaswamy Ayyangar v. State of Tamil Nadu48 , where the held that presence should be in
such a way that, “in one way or the other facilitate the execution of a common design...” the
counsel submits that in the present case such kind of situation is not inferred from the
circumstances and from the facts of the case. It is further contended that there was no active
involvement of Appellant No. 2 in the act committed by NED as he is not seen provoking or
guiding the actions or guarding it against stopping the NED midway in the commission of his
act. This view point was upheld in the case of Ghanshyam v. State of U.P.49, by the
Hon’ble court that mere presence of a person at a crime scene does not put him at share of
common intention. Also, In the case of Sanghara v. State50 the nature of the injury inflicted
was also considered to apply Sec. 34 of the IPC, 1860. Thus, fight of an unknown nature by
anyone and grievous hurt by other cannot be taken into account as common intention.

In the case of Palanisamy v. State51 , one of the accused persons caused single injury to the
hand of the victim and thereafter ran away. He was not held liable for murder under the criteria
of common intention along with the other accused. Thus events or actions of the
accused before and after the commission of the act matters a lot to invoke Sec. 34 of the IPC,
1860. The Counsel herein humbly submits that the acts committed by Appellant No.-2 is only
indulging in the fight and running away from the scene. His presence did not facilitate the
offence. Also, it is said that, “Sec. 34 intends to meet a case in which it is not possible to
distinguish between the criminal acts of the individual members of a party, who act in
furtherance of the common intention of all members of the party or it is not possible to prove
exactly what part was played by each of them.52” in the present case, even with the bare
reading of fact it is evident that appellant no. 1 (i.e., Ujwal Purohit) did not intended to

48 (1976)3 S.C.C. 779: 1976 S.C.C. (Cri) 518

49
A.I.R. 1983 SC 193: 1982 S.C.C. (Cr) 449
501994 S.C.C. (Cr) 163: 1994 Crim.L.J. 1098
51(2006)10 S.C.C. 297
52Abdul Sayeed v. State of M.P. : (2010)3 S.C.C. (Cri) 1262
 grievously hurt Mohan and was not involved in NED’s act of causing a fatal blow to the
deceased i.e., Mohan. The Part played by both the appellants is therefore clearly
distinguishable. Thus, it can be soundly contended that the actions of Appellant No.-2 did not
involve any common intention to voluntarily cause grievous hurt to the deceased (i.e., Mohan).

THERE IS NO EVIDENCE RELATING TO THE PLANNING OR MEETING OF MINDS BETWEEN BOTH

THE APPELLANTS:

The Counsel humbly submits before the Hon’ble court that there is no evidence pertaining to
the sharing of common intention by both the appellants this implies does not constitute an action
in concert and that it does not constitutes the existence of a pre-arranged plan amongst the
perpetrators of the crime53. The establishment of a plan or a meeting of mind, whether
direct or circumstantial, is necessary to invoke Sec. 34 of IPC, 1860. In most cases it needs to
be gathered from the actions and circumstances of the commission of the act54. The Counsel
further contends that, in the present case, the factors of planning are absent. This can be most
likely contended through following points from the facts of the present case:
 They planned to visit an exhibition organized by some NGO in nearby village.
 Ujwal Purohit had a quibble with a child of his peer named Mohan (son of a well
known businessman) as both of them wanted to buy the same toy gun.
 When the quibble turned into a quarrel and eventually into a fight, NED accompanied
Ujwal Purohit and took an iron rod and aggressively strike it on the head of Mohan.
 Ujwal Purohit understanding the circumstances fled from that place immediately but
NED was caught by the public as he kept standing there.

The only mention about existence of a plan in the is about the Appellants going to visit the
exhibition and not indulging into a fight or causing grievous hurt to someone. Further, NED
was not involved in the fight between Ujwal Purohit and Mohan pertaining to toy gun, and,
Ujwal Purohit was not involved, actively or passively, in the act of NED striking on the head
of Mohan. Finally, the clause of meeting of mind between both the accused is absent as far as
the occurrence of crime is concerned, Ujwal Purohit flees away, committing to his own

53Pandurang v. State: A.I.R. 1955 SC 216: 1955 Crim.L.J. 572

54Kashmira Singh v. State: A.I.R. 1994 SC 1651: 1995 Supp (4) S.C.C. 558
understanding, and NED stays back. Thus, the Counsel humbly submits before the Hon’ble
Court that pertaining to the natural implications of the facts, there is no hint of presence of
planning among both the accused in furtherance of a common intention. And also, it cannot be
said that immediately fleeing of the Ujwal Purohit from crime scene does constitute that he was
at fault it can also be contended that he fled from the fled due to the fact that he was shocked
by the act of NED.

The Counsel further submits that an important aspect of planning under Sec. 34, IPC, 1860, is
mentioned in the case of Amrit Singh v. State of Punjab55 . The Hon’ble Court held that, “to
constitute common intention, it is necessary that the intention of each one of them be known to
the rest of them and shared by them.” In the presentcase, there is no communication of the same
between Appellant No. 1 and Appellant No. 2 about any of their actions. Thus, the Counsel
finally relying on the above submissions and contentions submits before the Hon’ble court that
is a lack of common intention and there is lack of meeting of minds, preconcert or planning
between both the appellants. It is also submitted that Appellant no. 2 was not- involved in the
crime of causing grievous hurt to the deceased i.e., Mohan which is evident from the fact sheet.
Thus, the Counsel submits and pleads before the Hon’ble Court that the punishment of
Appellant No.-2 (i.e., Ujwal Purohit) be suspended.

55
1972 Crim.L.J. 465 SC
 PRAYER

Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the
Petitioners humbly submit that the Hon’ble Supreme Court of INDIKA be pleased to adjudge
and declare that:

1. The appeals filed under Art. 136 of the Indian Constitution are maintainable.

2. The case of Appellant No. 1 (i.e., NED) should be remanded back to the
Juvenile Board Committee.

3. The punishment of the Appellant No. 2 (i.e., Ujwal Purohit) should be suspended.

And pass any other relief, that this Hon’ble Supreme Court of INDIKA may deem fit
andproper in the interest of justice, equity and good conscience.
For this act of kindness, the Petitioners shall duty bound forever pray.

Sd. /-
(Counsel for the Petitioners)