TC:

NATIONAL MOOT COURT COMPETITION, 2023

BEFORE

THE HON’BLE HIGH COURT OF

JUDICATURE AT TRAVIPUR

THE APPEAL FILED UNDER SECTION 374(2) OF THE CODE OF

CRIMINAL PROCEDURE, 1973

IN CRIMINAL APPEAL NO. of 2023

MR. YUVRAJ AGRAWAL

(APPELLANT)

Vs.

STATE OF TRAVIPUR AND OTHERS

(RESPONDENTS)

MEMORIAL FOR THE APPELLANT

 NATIONAL MOOT COURT COMPETITION,

TABLE OF CONTENTS

Sr. No. Particulars Page No.

1 Index of Authorities 3
2 List of Abbreviations 4
3 Statement of Jurisdiction 5
4 Statement of Facts 6
5 Statement of Issues 8
6 Summary of Arguments 9
7 Arguments Advanced 11
8 Prayer 20

Memorial on Behalf of The Appellant Page | 2

 NATIONAL MOOT COURT COMPETITION,

INDEX OF AUTHORITIES

LIST OF CASES :

1. State of Uttar Pradesh v. Deoman Upadhyaya; AIR 1960 SC 1125;

2. Mohd. Inayatullah v. State of Maharashtra; (1976) 1 SCC 828;

3. Birey Singh v. State, 1951 SCC OnLine All 261

4. Nahar Singh Yadav v. Union of India; (2011) 1 SCC 307;

5. Vinod Katara v. State of U.P.; 2022 SCC OnLine SC 1204;

6. Ram Suresh Singh v. Prabhat Singh; (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194

7. Jyoti Prakash Rai v. State of Bihar; (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796

8. Manoj v. State of Haryana; (2022) 6 SCC 187

STATUTES REFFERED

1. The Indian Penal Code, 1860;

2. The Protection of Children from Sexual Offences Act, 2012;

3. The Immoral Trafficking (Prohibition) Act, 1959;

4. The Code of Criminal Procedure, 1973

5. The Indian Evidence Act, 1872

6. The Constitution of India

Memorial on Behalf of The Appellant Page | 3

 NATIONAL MOOT COURT COMPETITION,

LIST OF ABBREVIATIONS

Abbreviations Full Form

U/s Under Section
R/w Read with
Hon’ble Honourable
AIR All India Reporter
SCC Supreme Court Cases
& And
IPC Indian Penal Code
POCSO Protection of Children from Sexual
Offences
Vs. Versus

Memorial on Behalf of The Appellant Page | 4

 NATIONAL MOOT COURT COMPETITION,

STATEMENT OF
JURISDICTION

CRIMINAL APPEAL NO. of 2023

The Hon’ble High Court of Judicature at Travipur has the jurisdiction in this matter under Section
374(2) of the Code of Criminal Procedure, 1973, which reads as follows:

“S.374. Appeals from convictions.—

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

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

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

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

Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate,

may appeal to the Court of Session.”

Memorial on Behalf of The Appellant Page | 5

 NATIONAL MOOT COURT COMPETITION,

STATEMENT OF FACTS

1. “Athiya Sharma”, a resident of Maimnagar, Travipur, Indiana, aged about 16 years & 10
months is a student. Athiya Sharma was dating Rohit Biswas (Accused No. 1), aged 21.
Athiya and Rohit indulged in this affair for almost a year and used to meet on regular basis.
2. On 02/12/2021, around 06:30 pm, Rohit, along with three of his friends took Athiya to the
outskirts of Travipura. Rohit had informed Athiya that three of his friends namely Rahul
Kapoor (22), Rishabh Patel (18), and Virat Soni (20) (hereby referred to as Accused No. 2, 3
and 4 respectively) will engage in sexual activities with her in exchange for an amount of Rs.
1,000/- each and she was not to resist the same for which she will be paid accordingly. After
the said acts a consideration of Rs. 1,000/- each was paid to Rohit. Rohit didn’t pay the same to
Athiya and kept it all to himself. The same events took place On 5/12/2021 at around 7:00 pm.
3. On 07/12/2021, Rohit and his friends agreed to meet in the outskirts of Travipur in order to
engage into sexual activities with Athiya for an amount of Rs. 2,000/- each again. Rohit and
Athiya reached the agreed spot at around 05:30 p.m. However Rahul, Rishabh and Virat
didn’t show up. Thereto, Rohit engaged in sexual activities with Athiya against her will.
4. Three unknown people interrupted them by assaulting Rohit and snatching his phone. Rohit
allegedly escaped somehow. The three unknown people saw Athiya and allegedly forced
themselves on her.
5. On 08/12/2021, Athiya Sharma filed a police complaint in the Police Station of Maimnagar,
Travipur against Rohit Biswas, Virat Soni, Rishabh Patel, Rahul Kapoor, and the three
unknown people along with this the mother's statement was also recorded (Annexure No. 1).
6. On 08/12/2021, Athiya, in accordance with provisions given under section 164 of the
Criminal Procedural Code, 1973, recorded her statement before the respective Hon’ble
Judicial Magistrate.
7. On 09/12/2021 Accused No. 1 to 4 along with one Suryakumar Iyer were arrested in
accordance with the statement of Athiya Sharma. All the necessary medical tests were
conducted and it was well established that all five of them are capable of engaging in sexual
acts and upon a comparison of DNA, the DNA of the blood sample of Rohit Biswas
matched with the semen sample found on the dress of Athiya which was taken into custody
by the police.
8. The police later traced the stolen phone of Accused No. 1 to identify two of the three
unknown people, the phone was switched on after a couple of days and was in use.
9. On 26/12/2021, after tracing the location, the police arrested two people by the name of Hardik
Singh (19) and Shreyas Shastri (23), amongst whom, Hardik was in possession of the said
phone of Accused No. 1. The police recorded the confessional statement of Accused No. 5
after the arrest wherein he alleged the role of a Yuvraj Agrawal in the alleged crimes. Accused
No. 6 also recorded a disclosure statement as per the provisions given under section 27 of the
Evidence Act, 1872 wherein he admitted the commission of the alleged offence.
10. Upon matching the blood samples of Accused no. 5 to 7, it was observed that the semen
sample on the leggings of the complainant matched with the DNA sample of Accused No. 5,
and the semen sample on her underwear matched with the DNA sample of Accused No. 6.

Memorial on Behalf of The Appellant Page | 6

 NATIONAL MOOT COURT COMPETITION,

11. Accused No. 5 to 7 lived together in a rented Apartment in the La Regalia society on the
outskirts of Travipur i.e., in the exact same zone as the spot where the crime was committed.
When the police arrested all seven accused and tracked the location of their phones via the
CDR/SDR in order to know their location on 07/12/2021 i.e. the day when the crime was
committed, it was discovered that the location of the Accused No.1 and Accused No. 5 to 7
was shown in the same zone as that of the spot of commission of the offences.
12. According to the police, Athiya Sharma was aged 16 years and 10 months, the claim being
backed by a birth certificate which specified the date of her birth as 23/01/2005 and a bone
ossification test. Accused No.1 to Accused No. 4 were fully aware of this fact but Accused
No. 5 to 7 had no knowledge of the aforementioned fact regarding the age of the victim.
13. The police without conducting a Test Identification Parade of the three unknown accused i.e.
Accused No. 5 to 7 in accordance with the settled provisions of law U/s 54A of Code of
Criminal Procedure, 1973 and Section 9 of the Evidence Act, 1872 arrested all the the accused
and made a case against all seven for offences committed U/s 376(2)(n), 376 D, 372, 392, 323,
506, 34 of the Indian Penal Code, 1860 R/w Section 4 & 8 of the Protection of Children from
Sexual Offences Act, 2012 R/w Section 4 & 5 Immoral Trafficking (Prohibition) Act, 1959 as
alleged by the victim in her statement.
14. The case was tried by the Hon’ble District Judge-1 of the Maimnagar, Travipur and found all
the seven accused guilty of offences committed U/s. 376(2)(n), 376 D, 372, 392, 323, 506, 34
of the Indian Penal Code, 1860 R/w Section 4 & 8 of the Protection of Children from Sexual
Offences Act, 2012 R/w Section 4 & 5 Immoral Trafficking (Prohibition) Act, 1959.
Accordingly, Accused No. 1 to Accused No. 7 were sentenced to Imprisonment for Life.

Memorial on Behalf of The Appellant Page | 7

 NATIONAL MOOT COURT COMPETITION,

STATEMENT OF ISSUES

ISSUES RAISED BEFORE THE HON’BLE COURT —

1. IS THE CONVICTION GRANTED BY THE DISTRICT JUDGE - 1, TRAVIPUR

MAINTAINABLE?

2. CAN THE WHOLE ENQUIRY PROCESS BE TERMED AS INADMISSIBLE AS

NO TEST IDENTIFICATION PARADE IN ACCORDANCE WITH THE GIVEN
PROVISIONS OF LAW WAS CONDUCTED FOR THE ACCUSED NO. 5 TO 7?

3. CAN ACCUSED NO. 7 BE CONVICTED U/s 34 OF THE INDIAN PENAL CODE,

1860 BECAUSE ALL OTHER ACCUSED WERE CONVICTED FOR THE ALLEGED
CRIMES?

4. CAN PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT,

2012 BE APPLICABLE FOR ACCUSED NO. 5 TO 7?

5. CAN ACCUSED NO. 5 TO 7 BE HELD LIABLE LIABLE FOR OFFENCES UNDER

THE IMMORAL TRAFFICKING (PROHIBITION) ACT?

Memorial on Behalf of The Appellant Page | 8

 NATIONAL MOOT COURT COMPETITION,

SUMMARY OF ARGUMENTS

ISSUE I : Is the conviction granted by the District Judge - I, Travipur maintainable?

The Hon’ble District Court convicted all the seven accused under the sections — 376(2)(n),
376D, 372, 392, 323, 506, 34 of the Indian Penal Code, 1860, Section 4 & 8 of the
Protection of Children from Sexual Offences Act, 2012 along with Section 4 & 5 of the
Immoral Trafficking (Prohibition) Act, 1959.
However, it is humbly submitted that the conviction granted by the Hon’ble District Court
is not maintainable on the following grounds that Accused No. 7 was arrested and convicted
on the basis of oral confessions made by Accused No. 5 & 6 to the police U/s 27 of the
Indian Evidence Act 1872. However, the facts found to prove the statements in oral
confessions of Accused No. 5 and 6 are not substantial enough to make the oral confessions
even partly admissible.

ISSUE II : Can the whole enquiry be termed as inadmissible as no Test Identification Parade
in accordance with the given provisions of law was conducted for the Accused No. 5 to 7?

The non-conducting of the Test Identification Parade makes the investigation procedure as
well as the conviction arbitrary, violating the fundamental right enshrined in Article 21 of
the Indian constitution stating
The investigating authorities have departed from following the procedure established by law
and have deprived Accused No. 5 to 7 of their right to be tried under a the procedure
established by law.
Such a violation leading to conviction is unjust. The counsel humbly submits to the court
that the conviction based on such an arbitrary investigation be deemed unmaintainable.

ISSUE III : Can Accused No. 7 be convicted U/s 34 of the Indian Penal Code, 1860 because all
other accused were convicted for the alleged crimes?

The counsel argues that the accused was not at the scene of the crime. The hostel being in
the same zone nullifies the claim that just because the location traced was in the same zone
as that of the offence, the Accused No. 7 was present at the crime scene. The respondents
have failed to produce any evidence indicating that Accused No. 7 was present at the spot of
the crime, and acted in furtherance of common intention with accused number 5 & 6. It
leaves no room for the Accused No. 7 to have acted in furtherance of common intention
with any of the accused convicted.

Memorial on Behalf of The Appellant Page | 9

 NATIONAL MOOT COURT COMPETITION,

ISSUE IV : Can Protection of Children from Sexual Offences (POCSO) Act, 2012
be applicable for Accused No. 5 to 7?

The evidence provided lacks in confirming the age of the victim, and the conviction under
POCSO Act, 2012 can not be upheld because the age of the victim is itself under question
making the case non-maintainable even prima-facie. Accused number 5-7 can not be
charged under POCSO Act, 2012 because the age of the victim can not be determined and
the victim herself has stated her age to be 18 in her statement which is admissible in court.

ISSUE V : Can Accused No. 5 to 7 be held liable for offences under the Immoral Trafficking
(Prohibition) Act, 1959?

The counsel on behalf of the appellant would humbly like to submit that conviction of
Accused No. 5 to 7 under the Immoral Trafficking Prohibition Act, 1959 is not maintainable.
Accused No. 7 completely falls out of the ambit of this act as neither has his presence been
properly established and nor has his association with Accused No. 1 and the victim been
proven. For Accused No. 5 & 6, there might be evidences which corroborate their
involvement in sexual activities with the victim, but there is no proof of planning,
communication or transaction between Accused No. 1 and Accused No. 5 and 6 which
leaves them in a position where charges under Section 4 & 8 of the Immoral Trafficking
(Prohibition) Act, 1959 cannot be pressed against them.

Memorial on Behalf of The Appellant Page | 10

 NATIONAL MOOT COURT COMPETITION,

ARGUMENTS ADVANCED

ISSUE I : IS THE CONVICTION GRANTED BY THE DISTRICT JUDGE - 1,

TRAVIPUR MAINTAINABLE?

Accused No. 7 along with all the other accused was convicted U/s. 376(2)(n), 376 D, 372, 392, 323,
506, 34 of the Indian Penal Code, 1860 R/w Section 4 & 8 of the Protection of Children from
Sexual Offences Act, 2012 R/w Section 4 & 5 Immoral Trafficking (Prohibition) Act, 1959, and
sentenced to Imprisonment for Life. The counsel on behalf of the Appellant would like to submit
that the said conviction granted by the Hon’ble District Court is not maintainable on the following
grounds —

A. Reliance of prosecution on oral confessional statements that were not

corroborated properly to establish the guilt of Accused No. 7 —

Accused No. 7 was arrested and convicted on the basis of oral confessions made by Accused
No. 5 & 6 to the police U/s 27 of the Indian Evidence Act ,1872.

However,

Section 25 of the Indian Evidence Act, 1872 states that –

“S.25 Confession to police officer not to be proved.—No confession made to a police
officer, shall be proved as against a person accused of any offence."

Similarly, Section 26 of the Indian Evidence Act, 1872 states that –

“S.26 Confession by accused while in the custody of police not to be proved against
him. — No confession made by any person whilst he is in the custody of a police officer
unless it is made in the immediate presence of a Magistrate, shall be proved as against
such person.”

Primarily, according to the aforementioned sections, confessions made by Accused No. 5 &
6 should have been considered inadmissible by the Hon’ble District Court.

However, it may be argued that Section 27 of the Indian Evidence Act, 1872 is an exception
to Section 25 and 26.

Section 27 of the Indian Evidence Act, 1872 reads —

“S.27. How much of information received from accused may be proved. ––

Provided that, when any fact is deposed to as discovered inconsequence of
information received from a person accused of any offence, in the custody of a
police-officer, so much of such information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby discovered, may be proved.”
Memorial on Behalf of The Appellant Page | 11
 NATIONAL MOOT COURT COMPETITION,

However, the counsel on behalf of the Appellant would like to submit that the facts found to
prove the statements in oral confessions of Accused No. 5 and 6, i.e., the locations of the
accused tracked via the CDR/SDR location, are not conclusive and substantial.

B. CDR/SDR tracking contextually unreliable —

In continuation of the previous argument about the use of CDR/SDR tracking as a

corroborative evidence for oral allegations made against Accused No. 7, the counsel on
behalf of the Appellant would like to submit that, the CDR/SDR tracking is in every sense,
unreliable in this particular context.

This is because, the locations tracked via the CDR/SDR show Accused No. 5 to 7 to be
present in the vicinity of the spot of commission of the said offences, however, it is to be
noted that, in the exact vicinity was the ‘La Regalia’ society i.e., the apartment scheme
where Accused No. 5 to 7 used to reside together.

Here, the CDR/SDR tracking has only been able to confirm the presence of Accused No. 7
in the same vicinity as that of the spot of the commission of the offence, but also in the same
vicinity was the apartment where Accused No. 5 to 7 used to live, hence, the CDR/SDR
tracking does not in any sense, rule out the possibility that Accused No. 7 was present at the
apartment during the commission of the said offences. There is no proof that Accused No. 7
was present at the exact spot of commission of the said offences and not at his
accommodation in the La Regalia Society.

All the aforementioned facts, leave the CDR/SDR tracking in no capacity to corroborate the
part of the confessional statement, which alleges the presence and direct involvement of
Accused No. 7.

C. Corroboration of oral confessions a necessity in order to make them relevant

and admissible in court —

The Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya1, inferred that lack of
substantial evidence subsequently found to prove the confessions made orally, makes the
confession inadmissible. The Hon’ble court in para 71 of the judgement held that —

“The law has thus made a classification of accused persons into two:
(1) those who have the danger brought home to them by detention on a charge; and
(2) those who are yet free.
In the former category are also those persons who surrender to custody by words
or action.

1 State of Uttar Pradesh v. Deoman Upadhyaya; AIR 1960 SC 1125, Para 71

Memorial on Behalf of The Appellant Page | 12
 NATIONAL MOOT COURT COMPETITION,

The protection given to these two classes is different. In the case of persons
belonging to the first category the law has ruled that their statements are not
admissible, and in the case of the second category, only that portion, of the statement
is admissible as is guaranteed by the discovery of a relevant fact unknown before the
statement to the investigating authority.”

In Mohd. Inayatullah v. State of Maharashtra2, the Hon’ble Supreme Court in para 12 of

the judgement talked about the conditions necessary for the applicability of S. 27 of the
Indian Evidence Act, 1872 —
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and
(4) So much of information as relates distinctly to the fact thereby discovered is
admissible.

The aforementioned judgements lay down the importance of corroboration of the statements
in the oral confession, for them to become admissible in court. Unless and until the
statements in an oral confession are not backed or substantially guaranteed by a fact
discovered after the recording of the statement, it should not be considered to be lying under
the purview of Section 27 of the Indian Evidence Act, 1872 and thus, must not be
entertained by the court.

It is humbly submitted before this court on behalf of the Appellant that the conviction granted to
Accused No. 7 by the Hon’ble District Court is based on oral evidences which have not been
backed by a conclusive and substantial evidence.

Section 27 of the Indian Evidence Act, 1872 does not apply to the oral confessional statements of
Accused No. 5 & 6 alleging the presence and involvement of Accused No. 7 in the said offences.
Thus, the conviction based on the said oral confessions is not maintainable.

2 Mohd. Inayatullah v. State of Maharashtra; (1976) 1 SCC 828, Para 12

Memorial on Behalf of The Appellant Page | 13
 NATIONAL MOOT COURT COMPETITION,

ISSUE II : CAN THE WHOLE ENQUIRY PROCESS BE TERMED AS INADMISSIBLE

AS NO TEST IDENTIFICATION PARADE IN ACCORDANCE WITH THE GIVEN
PROVISIONS OF LAW WAS CONDUCTED FOR THE ACCUSED NO. 5 TO 7?

The Test Identification Parade of Accused No. 5 to 7 in accordance with the settled provisions
of law U/s 54A of Code of Criminal Procedure, 1973, and Section 9 of the Evidence Act, 1872
was not conducted.

In the case of Birey Singh v. State3, it was held by the Allahabad High Court that —
“The following points to be taken into consideration to decide for test of identification
parade;
1. The accused is not known to the witness or victim before the occurrence of
the crime.
2. When the witnesses gave vivid descriptions of the accused in their statements or
in the F.I.R.
3. When the witnesses say in the examination by the investigating officer that they
would be able to recognise some of the criminals.
4. When the accused was seen for a sufficient time by the witnesses and picked up
his distinctive features etc., in order to recollect later on.
5. Surrounding circumstances like the condition of light etc., were
sufficiently favourable showing features of the accused.
6. When there were peculiar features with respect of the accused and a mention
was made in the FIR or statements etc.”

According to the aforementioned judgement, Accused No. 5 to 7 being unknown to the victim
makes it necessary for the Test Identification Parade to be conducted. Adding to this, comes even
the ignorance of the accused no. 1 as to the identities of accused no. 5 to 7. When the closely
bonded accused no. 1 and the victim know neither of the accused no. 5 to 7 how is it expected of the
investigation to be completely airtight. Such a grave doubt demands for a test identification parade
to be conducted.

This lack of identification makes the arrest and conviction arbitrary violating the fundamental
right enshrined in Article 21 of the Constitution of India, stating —

“21. Protection of life and personal liberty — No person shall be deprived of his life or
personal liberty except according to the procedure established by law.”

As far as rights implicated during the investigation stage are concerned, Article 21 of the Indian
Constitution is relevant, Hon’n\ble Supreme Court through various judgements has interpreted
the article so as to protect the rights of the accused. In order to assure a fair trial and
investigation, both executive and judicial officers are expected to follow every procedural
safeguard and every assurance provided by the law to all the parties.

3 Birey Singh v. State, 1951 SCC OnLine All 261

Memorial on Behalf of The Appellant Page | 14
 NATIONAL MOOT COURT COMPETITION,

In Nahar Singh Yadav v. Union of India4, it was held in para 21 that —

“ A criminal trial, which may result in depriving a person of not only his personal
liberty, but also his life has to be unbiased, and without any prejudice for or against the
accused. An impartial and uninfluenced trial is fundamental requirement of a fair trial,
the first and the foremost imperative of the criminal justice delivery system. If a criminal
trial is not free and fair, the criminal justice system would undoubtedly be at stake,
eroding confidence of a common man in the system, which would not augur well with the
society at large.”

The departure of the investigating authorities from the procedure established by law makes the
said criminal investigation arbitrary and unjust, which eventually makes the criminal trial unfair
for Accused No. 5 to 7.

The Appellant humbly pleads the Hon’ble court to take into consideration the departure from due
process of law during the investigation procedure leading to the violation of the accused’s right
under article 21 and also to take into account the lack of substantive and primary evidence.

The Appellant would like to submit before this court that the entire investigation procedure shall be
termed as inadmissible on the grounds mentioned earlier. The test identification parade itself may
not be a right, however, procedure established by law being followed is.

4 Nahar Singh Yadav v. Union of India; (2011) 1 SCC 307; para 21

Memorial on Behalf of The Appellant Page | 15
 NATIONAL MOOT COURT COMPETITION,

ISSUE III : CAN ACCUSED NO. 7 BE CONVICTED U/s 34 OF THE INDIAN PENAL
CODE, 1860 BECAUSE ALL OTHER ACCUSED WERE CONVICTED FOR THE
ALLEGED CRIMES?

Complete non-involvement of Accused No. 7:

1. It is alleged that Accused No. 7 was acting in furtherance of a common intention, however,
the counsel on behalf of the appellant would like to maintain that the Accused No. 7 was
not at the scene of the crime. The apartment of residence of Accused No. 7 being in the
same zone, nullifies the claim that just because the location traced was in the same zone as
that of the offence, the Accused No. 7 was present at the crime scene.

2. The counsel maintains the claim that the CDR/SDR tracking, in this case, is inadmissible
and contextually unreliable as well. The CDR/SDR only identifies the presence of the
accused in the vicinity and not at the exact spot, and does not rule out the possibility of
Accused No. 7 being present at the apartment instead of the scene of the crime.

3. There is no room left to believe that Accused No. 7 acted in furtherance of common
intention as the prosecution has time and again failed to provide a substantial proof to
corroborate the presence of Accused No. 7 at the exact spot of the crime. As mentioned by
the victim in Annexure - 2 and as also indicated by the police in the investigation, the
common intention thus formed among the three persons present at the scene of the crime
was spontaneous, and without the presence of Accused No. 7 at the spot, his participation
in the creation of a spontaneous common intention is not possible.

4. The report indicated that the semen samples connected matched the blood samples of
Accused No. 5 & 6, however, nothing was found in concern with Accused No. 7
proving again the non-involvement of the same.

5. The unavailability of the test identification parade also leaves the proposition of Accused
No. 7 being involved in the crime highly uncorroborated. It has to be noted that, the identity
of Accused No. 7 was not confirmed by any witness, no test identification parade was held,
even though, during the course of investigation, there was absolutely no proof or material
fact indicating, let alone corroborating the involvement of Accused No. 7 in the crime,
making the investigation arbitrary and thus, the presumption of common intention on the
part of Accused No. 7 unfair.

Thus, the counsel on behalf of the Appellant would like to submit that, the conviction of Accused
No. 7 under section 34 of the Indian Penal Code, 1860 is not maintainable.

Memorial on Behalf of The Appellant Page | 16

 NATIONAL MOOT COURT COMPETITION,

ISSUE IV : CAN PROTECTION OF CHILDREN FROM SEXUAL OFFENCES

(POCSO) ACT, 2012 BE APPLICABLE FOR ACCUSED NO. 5 TO 7?

A. The age of the victim as mentioned in her birth certificate is 16 years and 10 months around the
date of commission of the crime, which is said to be corroborated by the bone ossification test,
however, the test itself has been disproven by the court.

In the case of Vinod Katara vs State of Uttar Pradesh5, in para 60 of the judgement, it
was held that —

“The bone ossification test is not an exact science that can provide us with the exact
age of the person. As discussed above, the individual characteristics such as the
growth rate of bones and skeletal structures can affect the accuracy of this method.
This Court has observed in Ram Suresh Singh v. Prabhat Singh6, and Jyoti Prakash
Rai v. State of Bihar7, that the ossification test is not conclusive for age
determination because it does not reveal the exact age of the person, but the
radiological examination leaves a margin of two years on either side of the age
range as prescribed by the test irrespective of whether the ossification test of
multiple joints is conducted. The courts in India have accepted the fact that after the
age of thirty years the ossification test cannot be relied upon for age determination.
It is trite that the standard of proof for the determination of age is the degree of
probability and not proof beyond a reasonable doubt.”

B. The Hon’ble Supreme Court Manoj alias Monu alias Vishal Chaudhary Vs State of
Haryana and Anr.8 held in para 8 —

“…the truthfulness of the birth certificate issued by the government shall be examined.”

The Hon’ble Court followed a process while adjudicating over the admissibility of the birth
certificate produced. The process followed as mentioned in para 9 of the same judgement included
the tracing of the origin of the birth certificate and the provision it was created.
We can infer from the procedure followed that it is a requirement to trace the origin of the document
produced and thereto, test its authenticity and reliability, however, no such test was conducted ever
after the age of the victim was established to be disputed on the accords of her own statement.
The same procedure of identification of the origin of the said document should have been followed,
however it was not. Such a failure to follow due process established by a previous judgement of the
Hon’ble Supreme Court leaves the evidence uncorroborated.

5 Vinod Katara v. State of U.P.; 2022 SCC OnLine SC 1204; Para 60

6 Ram Suresh Singh v. Prabhat Singh; (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194
7 Jyoti Prakash Rai v. State of Bihar; (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796
8 Manoj v. State of Haryana; (2022) 6 SCC 187; Para 8
Memorial on Behalf of The Appellant Page | 17
 NATIONAL MOOT COURT COMPETITION,

C. The victim herself in her statement made under Section 164 of the Criminal Procedural Code,
1973, before the respective Hon’ble Judicial Magistrate mentioned her age to be 18 years. The
victim's statement contradicts the birth certificate which, made the requirement of verification of the
date of birth on the birth certificate even more vital, however, no step further was taken to verify the
age of the victim, instead it was arbitrarily accepted by the Hon’ble District Court that the victim
was a minor during the time of the commission of the said offences.

D. The evidence provided lacks in confirming the age of the victim, and the conviction under
Protection of Children from Sexual Offences Act, 2012 can not be upheld because the age of the
victim is itself under question making the case non-maintainable. Accused no. 5 to 7 can not be
charged under Protection of Children from Sexual Offences Act, 2012 because the age of the
victim can not be determined and the victim herself has stated her age to be 18 in her statement.

Memorial on Behalf of The Appellant Page | 18

 NATIONAL MOOT COURT COMPETITION,

ISSUE V : CAN ACCUSED NO. 5 TO 7 BE HELD LIABLE FOR OFFENCES UNDER

THE IMMORAL TRAFFICKING (PROHIBITION) ACT?

1. The appellant would like to contend that the Sections of the Immoral Trafficking (Prohibition)
Act, 1959 charged against Accused No. 5 to 7 i.e Section 4 and 8 are completely irrational
when applied to the aforementioned accused.

2. Accused No. 5 to 7 being unknown to both the Accused No. 1 and the victim had no
knowledge of the fact that Accused No. 2, 3 & 4 had previously paid Accused No. 1 to enter
into sexual activities with the victim. There is no proof that the verbal contract between
Accused No. 1 and Accuse No. 2 to 4 which was executed successfully twice, was known to
the Accused No. 5 to 7.

3. There is no fact which proves that there was planning and communication between Accused
No. 1 and Accused No. 5 to 7 which would lead to the establishment of an understanding
between Accused No. 1 and Accused No. 5 to 7 and thus, attract charges of Immoral
Trafficking on them.

4. There is verbal agreement between Accused No. 2, 3 & 4 with Accused No. 1 which
amounted to Accused No. 1 to 4 all being liable under Section 4 and 8 of the said Act.

5. When it comes to Accused No. 7 the counsel pleads innocence and complete non interference,
the counsel would like to maintain that Accused No. 7 completely falls out of the ambit of
this act as neither has his presence been properly established and nor has his association with
Accused No. 1 and the victim been proven.

6. With regards to Accused No. 5 and 6, there might be evidences which corroborate their
involvement in sexual activities with the victim, but there is no proof of planning,
communication or transaction between Accused No. 1 and Accused No. 5 and 6 which leaves
them in a position where charges under Section 4 & 8 of the Immoral Trafficking
(Prohibition) Act, 1959 cannot be pressed against them.

If this conviction of the Hon’ble District Court is upheld, then it would set a wrongful precedence in
terms of legal adjudication.

Memorial on Behalf of The Appellant Page | 19

 NATIONAL MOOT COURT COMPETITION,

PRAYER

In the light of the facts stated, issues raised, arguments advanced and authorities cited, it is most
humbly and respectfully prayed before this Hon’ble Court that it may be pleased to:

1. Acquit accused no. 7 of all the charges.

2. Quash the order of the Hon’ble District Court and declare it to be non-maintainable.

AND/OR

Pass any other order, as it deems fit, in light of justice, equity and good conscience.

All of which is humbly and most respectfully submitted.

(Counsel for Appellant)

Place: Travipur, Indiana S/d

Date : APPELLANT

Memorial on Behalf of The Appellant Page | 20