P – 04

1ST NATIONAL MOOT COURT COMPETITION, 2016

BEFORE

THE HON‟BLE SUPREME COURT OF REPUBLIC OF INDIANA

(SPECIAL LEAVE PETITION UNDER

ARTICLE 136 OF THE CONSTITUTION OF REPUBLIC OF INDIANA)

IN THE MATTER OF

SHYAMA ............................................................................................................PETITIONER

SHEKHAR................................................................................ ...........................PETITIONER

HUMAN WELFARE ORGANISATION.............................................................PETITIONER

V.

REPUBLIC OF INDIANA................................................................................RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS _______________________________________________4

INDEX OF AUTHORITIES_______________________________________________5 - 9

STATEMENT OF JURISDICTION_________________________________________10

STATEMENT OF FACTS_________________________________________________11

STATEMENT OF ISSUES_________________________________________________12

SUMMARY OF ARGUMENTS_________________________________________13 - 14

ARGUMENTS ADVANCED____________________________________________15 - 34

I. THAT THE SPECIAL LEAVE PETITION FILED BY SHYAMA AND

SHEKHAR ARE MAINTAINABLE BEFORE THE HON’BLE SUPREME

COURT OF INDIANA.________________________________________________15

I.1.THE JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE

INVOKED WHEN A SUBSTANTIAL QUESTION OF LAW ARISES.15

I.2. THE DECISION OF LOWER COURTS CAUSES INJUSTICE.________17

I.3. THE PETITIONER HAS EXHAUSTED ALL ALTERNATIVE

REMEDIES._____________________________________________________17

II. THAT THE PROVISIONS OF THE JUVENILE JUSTICE (CARE &

PROTECTION OF CHILDREN) ACT, 2014 CLASSIFYING AMONG

JUVENILES ARE INVALID AND VIOLATIVE OF THE CONSTITUTIONAL

ANDINTERNATIONAL PROVISIONS._________________________________18

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 II.1. THE PROVISIONS OF JUVENILE JUSTICE (CARE AND PROTECTION

OF CHILDREN) ACT, 2014 CLASSIFYING AMONG JUVENILES IS

VIOLATIVE OF CONSTITUTIONAL PROVISIONS.___________________18

II. 2. THE CLASSIFICATION OF JUVENILES IS AGAINST THE

INTERNATIONAL NORMS ESTABLISHED FOR JUVENILES.__________21

III. THAT THE EVIDENCES ON RECORD ARE INSUFFICIENT TO PROVE THE

OFFENCES OF WHICH SHEKHAR HAS BEEN CONVICTED.____________25

III.1.THE CIRCUMSTANTIAL EVIDENCES ARE INCONCLUSIVE IN

NATURE._______________________________________________________25

III.2.RAM MANOHAR‟S STATEMENT CANNOT BE RELIED UPON.____26

IV. THAT THE CRIMINAL PROCEEDING INITIATED AGAINST SHYAMA

WERE INVALID AND BE QUASHED.__________________________________29

IV.1.THE EVIDENCE ON RECORDS ARE INSUFFICIENT TO PROVE

SHYAMA GUILTY OF OFFENCES FOR WHICH HE IS CHARGED._____29

IV.2. SHYAMA SHOULD BE TREATED LIKE A MINOR.______________31

IV.3. THERE WAS ABUSE OF DUE PROCESS OF LAW._______________32

PRAYER.________________________________________________________________35

3
 LIST OF ABBREVIATIONS

1. SLP SPECIAL LEAVE PETITION

2. SC SUPREME COURT

3. ART ARTICLE

4. ROI REPUBLIC OF INDIANA

5. ¶ PARA

6. AIR ALL INDIA REPORTER

7. ICCPR INTERNATIONAL CONVENTION ON CIVIL AND

POLITICAL RIGHTS, 1966

8. UNCRC UNITED NATION CONVENTION ON THE RIGHTS OF

THE CHILDREN

9. SCC SUPREME COURT CASES

10. SEC SECTION

11. U.P. UTTAR PRADESH

12. IO INVESTIGATING OFFICER

13. UK UNITED KINGDOM

14. JJ JUVENILE JUSTICE

15. CRPC CODE OF CRIMINAL PROCEDURE

16. IPC INDIAN PENAL CODE

17. HC HIGH COURT

18. UDHR UNIVERSAL DECLERATION ON HUMAN RIGHTS

19. ECHR EUROPEAN CONVENTION ON HUMAN RIGHTS

20. U/S UNDER SECTION

21. ALR AMERICAN LAW REGISTER

4
 INDEX OF AUTHORITIES

Serial Referred
No. CASES to in:
1. A. Sukriyakala v. Mohan Doss and others, A.I.R. 2007 9 S.C.C. 196. 18
2. Achyut Adhicary v. West Bengal, A.I.R. 1963 1039 (S.C.). 17
3. Ashish Batham v. State of M.P., A.I.R. 2002 S.C. 3206. 27
4. Babu Khan v. State of Rajasthan, A.I.R. 1997 S.C. 2960. 30
5. Bakhshish Singh v State of Punjab, A.I.R. 1971 S.C. 2016 3 S.C.C. 182. 26
6. Balakrishnaiyer v. RamaswamiIyer, A.I.R. 1965 S.C. 195. 18
7. Bengal Chemical Pharmaceutical Works ltd v. Employees, A.I.R. 1959 S.C. 16
633(635)
8. Budhwa v. State of M.P, A.I.R. 1991 S.C. 4. 26
9. C.C.E v. Standard Motor Products, A.I.R.1989 1298 (S.C.) 16
10. Central Bureau of Investigation v. V.C. Shukla, A.I.R. 1998 Cr LJ 1905. 30
11. Chonampra v. State of Kerala, A.I.R. 1979 S.C. 1761. 28
12. D.S. Nakara v. Union of India, A.I.R. 1983 130. 20
13. Dadu v. State of Maharashtra, A.I.R. 2000 8 S.C.C. 437. 24
14. Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 S.C.C. 212(S.C.). 15
15. Delhi Transport Corporation v. DTC Mazdoor Union, A.I.R. 1990 S.C.R. 1 33
142.
16. Deonandan Mishra v. State of Bihar, A.I.R. 1955 2 S.C.R. 570. 26
17. Dhakeshwari Cotton Mills v. C.I.T., A.I.R. 1955 S.C. 65. 17
18. Dhananjoy Chatterjee v. State of W.B, A.I.R. 1994 2 S.C.C. 220. 30
19. Dial Singh Narain Singh v. Rajapal Jagan Nath, A.I.R. 1969 P&H 350. 27
20. Durga Shankar Mehta v. Thakur Raghunath Singh, A.I.R. 1954 S.C. 520. 17
21. Emperor v.Fakir Mahomed, A.I.R. 1935 38 BomLR160. 30
22. Empress v. Rama Birapa, (1878) 3 BOM 12, 7. 31
23. Gaisuddin v. State of Assam, A.I.R. 1977 Cri LJ 1512. 27
24. Ganpat v. State, 1987 Cr LJ 6 Del. 26
25. Golaknath V. State of Punjab, A.I.R. 1967 1643. 21
26. Harendra Narain Singh v. State of Bihar, A.I.R. 1991 S.C. 1842. 26

5
27. Haryana State Industrial coprn. v. Cork mfg. Co., A.I.R. 2007 8 S.C.C. 120. 16, 17
28. HazariLal v. State(Delhi Admn.), A.I.R. 1980 S.C.C. (Cri) 458. 27
29. Heer v. State of Rajasthan, A.I.R. 2007 S.C. 2425. 28
30. Hussainara Khatoon v. Home Secretary State of Bihar, A.I.R. 1979 S.C.R. 33
532.
31. Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477. 20
32. Ismail Ahmed v. MominBibi, A.I.R. 1941 ¶11. 28
33. Jamadar Singh v. E., 21 (854). 28
34. Janshed Hormusji Wadia v. Board of Trustees Port of Mumbai, A.I.R. 2004 3 16
S.C.C. 214 (SC).
35. Joginder Nath v. Union of India, A.I.R. 1975 S.C. 511. 19
36. Kameshwar Singh v. State of Bihar, A.I.R. 1952 1 S.C.R. 889. 20
37. Kanan v. State of Kerala, A.I.R. 1979 Cr LJ 919. 28
38. Kathi Raning Rawat v. The State of Saurashtra, A.I.R. 1952 991 17
39. Kerala State Board v. Kurein E kalathil, A.I.R. 2000 6 S.C.C. 293. 17
40. Keshvanand Bharti V State of Kerala, A.I.R. 1973 4 S.C.C. 225. 21
41. Laxman Naik v. State of Orissa, A.I.R. 1995 S.C. 1387 26
42. M. Nagaraj v. Union of India, A.I.R. 2007 S.C. 71. 19
43. Madan Gopal Kakkad v. Naval Dubey and Anr., A.I.R. 1992 3 SCC 204. 30
44. MadhuLimaye v. Supdt. Tihar Jail Delhi, A.I.R. 1975 1505. 21
45. Maneka Gandhi v. Union of India, A.I.R. 1978 597. 33
46. Mangulu Kanhar v. State of Orissa, A.I.R. 1995 Cr LJ 2036 (ori). 27
47. MI builders (P) ltd. v. Radhey Shyam Sahu, A.I.R.1999 S.C. 2468. 17
48. Miller v. Alabama, 567 U.S. 2012. 19
49. Mithu v. State of Punjab, A.I.R. 1983 2 S.C.C. 277. 24
50. Murugan v. State, A.I.R. 2009 S.C. 72. 28
51. Musheer Khan v. State of M.P., A.I.R. 2010 S.C. 762. 30
52. Nandini Satpathy v. P.L. Dani, A.I.R. 1978 1025. 33
53. Nazir Hossain Haider v. The State, A.I.R. 1997. 32
54. Paramjeet Singh v. State of Uttarakhand, A.I.R. 2011 S.C. 200. 26
55. Pawan Kumar v. State of Haryana, A.I.R. 2003 11 S.C.C. 241 (S.C.). 16
56. People v Beslanovics, 57 N.Y.2d 726 (1982). 27

6
57. People v Newman, 46 N.Y.2d 126 (1978). 27
58. People v. Antommarchi, 80 N.Y.2d 247, 252-253 (1992). 27
59. People v. Jones, 27 N.Y.2d 222 1970. 26
60. People v. Whalen, 59 N.Y.2d 273, 279 (1983). 27
61. Perla Somasekhara Reddy v. State of A. P, A.I.R. 2009 S.C. 2622. 28
62. R v. Buckley, 1999 163 JP 561. 30
63. R v. Sharp, 1988 1 All ER 65, HL. 33
64. R. v. Prater, 1960 2 Q.B. 464. 25
65. Ramesh Prasad v. State of Bihar, A.I.R. 1978 S.C. 327. 20
66. Tamil Nadu Electricity Board v. R. Veeraswamy, A.I.R. 1999 2 S.C.R. 221. 20
67. Salil Bali v. Union of India, A.I.R. 2013. 20
68. Sanaboina Satyanarayan v. Govt. of A.P., A.I.R. 2003 S.C.R. 874. 21
69. Sangappa Nigappa Malabadi v. State of Maharashtra, A.I.R. 1987 (1) 30
BomCR 576.
70. Sewaki v. State of H.P, A.I.R. 1981 Cri LJ 919. 27
71. Shangara v. State of Punjab, A.I.R. 1995 S.C.C. (Cr.) 163. 27
72. Sham Sunder v. Puran, A.I.R 1990 4 SCC 731. 15
73. Sharad v. State of Maharashtra, A.I.R. 1984 S.C. 1622. 26
74. Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing 15
Co. Ltd., A.I.R. 1962 S.C. 1314.
75. Sooraj v. State of Kerala, 1994 Cr LJ 1155 (ker). 31
76. State of Goa v. Pandurang Mohite, A.I.R. 2009 S.C. 1066. 28
77. State of H.P v. Diwana, 1955 Cr LJ 3002. 26
78. State of Maharashtra v. Vilas Pandurang, 1999 Cr LJ 1062. 31
79. State Of Rajasthan v. N.K, A.I.R. 2000 S.C.W. 1407. 33
80. State of U.P v. Indian Hume pipe co. Ltd., A.I.R. 1977 S.C.1132. 16
81. State of U.P v. Mukunde Singh, A.I.R. 1994 2 S.C.C. 191. 30
82. Subramanian Swamy v. Raju, A.I.R. 2014 8 S.C.C. 390. 20
83. Taylor v. Kentucky, 436 U.S. 478 (1978). 27
84. Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 33
[1988].
85. TirupatiBalaji Developer Pvt. Ltd. v. State of Bihar, A.I.R. 2004 S.C. 2351. 16

7
 86. Victor v. Nebraska, 511 U.S. 1994. 26
87. Viseswaran v. State, A.I.R. 2003 Cri LJ 2548 S.C. 27
88. Vishnu Undrya v. State Of Maharashtra, A.I.R. 2005. 31
89. Winship, 397 U.S. 358 (1970). 27

INTERNATIONAL AND REGIONAL INSTRUMENTS

1. European Convention on Human Rights. 33
2. International Covenant for Protection of Civil and Political Rights. 33
3. International Covenant on Civil and Political Rights Article 24. 23
4. Juvenile Justice (Care and Protection of Children) Act, 2014. 32
5. Juvenile Justice Rules 2007 Rule 12. 31
6. National Campaign to Reform State Juvenile Justice Systems (U.S.). 24
7. Parliamentary Standing Committee on Human Resource Development, 264th 21
Report ¶ 3.21.
8. The Department-Related Parliamentary Standing Committee on Human 24
Resource Development, 264th Report, (para 3.29).
9. The Supreme Court Rules, 1966, Art 136, Order XVI Ch. XXXVII, Sec. E. 17
10. United Nation Convention on the Rights of Child. 23
11. United Nations Rules for the Protection of Juveniles Deprived of their Liberty 23
1990 Rule 11 part 2.
12. United Nations Standard Minimum Rules for the Administration of Juvenile 23
Justice Rule 7.
13. United Nations Rules for the Protection of Juveniles Deprived of their Liberty 23
1990 Rule 4 part 1.
14. Universal Declaration of Human Rights Article 10. 33
15 Code of Criminal Procedure, 1973
16. Indian Penal Code, 1860
17. The Indian Evidence Act, 1872
18. The Constitution of India, 1950

BOOKS
1. B M Prasad & Manish Mohan, The Law of Evidence 387 ¶1 (25th Edition 27
Ratanlal & Dhirajlal 2013).

8
2. B M Prasad & Manish Mohan, The Law of Evidence 788 (25th Edition 27
Ratanlal & Dhirajlal 2013).
3. Basu D.D, Constitution of India ,14th edition 2009, LexisNexis, Butterworths
Wadhwa Publication Nagpur.
4. BLACK‟S LAW DICTIONARY (West Group, 7th ed.)
5. Constitution of India Article 326. 19
6. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
7. H.M. Seervai, Constitutional Law Of India (4th ed. 2010); see also 35 16
Halsbury‟s Laws of India (2007).
8. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis
Butterworth Wadhwa Nagpur.
9. Justice J V Chandrachud, The law of evidence 75 (21st edition Ratanlal & 31
Dhirajlal ,Wadhwa & Company).
10. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
11. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
12. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
13. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
14. Shukla V.N , Constitution of India, 11th edition 2008, Eastern Book
Company.

ARTICLES
1. Bonnie & Scott, “The Teenage Brain: Adolescent Research and the Law”, 20
Current Directions in Psychological Science, 22(2) 158–161 (2013), p.162.
2. Bonnie & Scott, “The Teenage Brain: Adolescent Research and the Law”, 20
Current Directions in Psychological Science, 22(2) 158–161 (2013), p.161.
3. Hari Om Tripathi and Shourya Raj, Stages of School Education in India, 29
www.urbanpro.com/a/stages-of-school-education-in-india.
4. J. F. B., The American Law Register, Vol. 16, No. 12, New Series Volume 7 25
(Oct. - Nov., 1868), pp. 705-713.
5. Leonard Jaffee, „Of Probativity and Probability' 46 University of Pittsburgh, 25
(Law Review 924, 934, 1985).
6. Simon Bunter, How long can an identifiable fingerprint persist, April 2014. 30

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 STATEMENT OF JURISDICTION

The Petitioners have approached the Hon‟ble Supreme Court under Article 136 of the

Constitution of Republic of Indiana, 1950. Article 136 of the Constitution of Republic of

Indiana reads as hereunder:

“136. 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 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.”

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 STATEMENT OF FACTS

BACKGROUND: Shyama was a domestic worker since past six years under employment of

Mr. Batra after he dropped out from government school from sixth standard. He was ill treated

by Vanita and Ravi children of Mr. Batra. One day while performing their routine, Ravi had an

intense fight with Shekhar in the park. Shekhar and Ravi had animosity since childhood. On 7th

March, 2015, Shyama took permission from Mr. Batra to go to his village on leave for 3 Days.

On 8th March, 2015, Mrs.Batra had planned to go to a painting exhibition with her children. At

7:30 p.m. Ravi sensed Vanita was missing. Ravi reached basement in search of Vanita where he

saw four guys trying to outrage her modesty. When Ravi tried to save his sister, he was hit by

rod on head and abdomen which later caused his death and Vanita was killed by strangulation.

INVESTIGATION: On 10th March IO arrested Shekhar on the basis of statement by Ram

Manohar who saw Shekhar sneaking out of the basement on the night of 8th March, 2015. On

12th March Shyama along with Raju and Ranjeer (aged 17 years) were arrested who were

Shekhar‟s friend.

PROCEEDINGS IN JUVENILE BOARD, SESSION COURT & HIGH COURT: On 15th

March, 2015 case of Shyama & Shekhar was referred to Session court by Juvenile Board as they

were found capable of committing offences for which they were charged. Shekhar‟s case was

later remanded back to Juvenile board where he was sentenced for three years of remand in

special homes. Shyama requested for a bone test for age determination as his age was not

proved, which was denied by the court & was sentenced three years of imprisonment. Later a

cross appeal was filled by Mr. Batra in which High Court found Shyama & Shekhar guilty u/s

302 of penal code & were sentenced life imprisonment and imprisonment for a period of 10

years respectively.

And now this SLP filled by Shyama and Shekhar lie before the Hon‟ble Apex Court of Indiana.

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 STATEMENT OF ISSUES

The following issues are to be adjudicated upon in the instant case:

ISSUE NO.I: Whether The Special Leave Petition filed By Shyama And Shekhar Are

Maintainable Before The Hon‟ble Supreme Court Of Indiana.

ISSUE NO.II: Whether the Provisions of the Juvenile Justice (Care & Protection Of Children)

Act, 2014 classifying among Juveniles are within the ambit of Constitutional and International

Provisions.

ISSUE NO.III: Whether the evidences on record are sufficient to prove the offences of which

Shekhar has been convicted.

ISSUE NO.IV: Whether the Criminal proceeding initiated against Shyama were valid and be

upheld.

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 SUMMARYARY OF ARGUMENTS

CONTENTION NO.I: THAT THE SPECIAL LEAVE PETITION FILED BY SHYAMA

AND SHEKHAR ARE MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT

OF INDIANA.

It is humbly submitted before the Hon‟ble court that the instant SLP is maintainable. As, the

SLP consists a substantial question of Law, challenging the constitutional validity of the

Juvenile Justice Act, 2014. The SLP challenges the decision of lower courts as these decisions

have caused grave injustice. The lower courts have convicted Shyama and Shekhar on

insufficient grounds and have violated the principles of Juvenile Justice System. The petitioners

have exhausted all the alternative remedies thus have ended up on the gates of Apex court for

protection of their rights and thus, the SLP stands maintainable.

CONTENTION NO.II: THAT THE PROVISIONS OF THE JUVENILE JUSTICE

(CARE & PROTECTION OF CHILDREN) ACT, 2014 CLASSIFYING AMONG

JUVENILES ARE INVALID AND VIOLATIVE OF THE CONSTITUTIONAL AND

INTERNATIONAL PROVISIONS.

It is humbly submitted before the Hon‟ble court that the provision of differential treatment of

juveniles in conflict with law for heinous crimes aged 16-18 years is against the objective of

juvenile justice system that is to rehabilitate such children by catering their needs by care and

reformation. Scientific data furnish that brains of such children below the age of 18 years are

still in development phase and they are not mature enough to understand the nature of their act.

So rigorous treatment will make them hardened rather than reformed. The provisions are

violative of constitutional safeguards provided to juveniles under article 14, 15(3) and 21 of the

constitution of Indiana. These provisions are also violative of several international norms and

conventions. Thus these provisions stand invalid and unconstitutional.

13
CONTENTION NO.III: THAT THE EVIDENCES ON RECORD ARE INSUFFICIENT

TO PROVE THE OFFENCES OF WHICH SHEKHAR HAS BEEN CONVICTED.

It is humbly submitted that the evidence presented at the trial stage are insufficient and

inconclusive to show that Shekhar is indeed guilty of the aforementioned offences and the

evidence must be reviewed de novo. The circumstantial evidence put forward against accused

are inconclusive in nature as none of the existing circumstances are concrete enough to prove the

factum probandum. The available chain of circumstances fails to prove the proposed hypothesis

of Shekhar‟s guilt. The statement of Ram Manohar is erroneous and lacks the requisite probative

value and is not a substantial evidence under law. Thus the proceedings in lower courts were

based on wrong and illogical inferences and evidences which do not prove case beyond

reasonable doubt and hence are liable to be quashed.

CONTENTION NO. IV: THE CRIMINAL PROCEEDING INITIATED AGAINST

SHYAMA WERE INVALID AND BE QUASHED.

It is humbly submitted before the Hon‟ble court that Shyama is a child in need of care. The

evidences produced against him are vague and inconclusive to prove his guilt. Arguendo:

Shyama is a minor and should be given protection under juvenile justice act. Session court

convicted him u/s 304 which is not a heinous offence and hence he cannot be tried in session

court not can he be sentenced any imprisonment according to provisions of Juvenile Justice Act,

2014. The Session court didn‟t took adequate measures to confirm his age and the decision of

were given on mere presumptions of guilt. The High court being an appellate court didn‟t looked

into the facts de novo and grounded its decision on the findings of session court which were

erroneous and sentenced Shyama life imprisonment which is prohibited under the act. Hence

these proceedings are invalid and be quashed.

14
 ARGUMENTS ADVANCED

CONTENTION I: THAT THE SPECIAL LEAVE PETITION FILED BY SHYAMA AND

SHEKHAR ARE MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OF

INDIANA.

It is humbly submitted by the Petitioner that the Special Leave Petition filed by Shyama and

Shekhar against the judgement of Hon‟ble High Court, Session Court and Juvenile Board is

maintainable under Article 136 of the Constitution of Indiana. The decision of Session Court and

High Court are violative of the principles of law and cause grave injustice. 1 It is contented that

the jurisdiction of the Supreme Court under Article 136 can always be invoked when there is a

substantial question of law. The SLP also challenges the provisions of Juvenile Justice Act, 2014

which discriminates among the juveniles and are violative of basic structure of the constitution.

The petitioners have exhausted all the possible alternative remedies and now seek justice and

claim their fundamental and legal rights from this Apex Court by the way of SLP.

I.1. JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKED

WHEN A SUBSTANTIAL QUESTION OF LAW ARISES.

It is contented that the matter involves substantial question of law and hence entitled to be

maintainable. Where findings are entered without considering relevant materials and without

following proper legal procedure, SC interference is called for.2 A Constitution Bench3 of this

Court, while explaining the import of the said expression, observed that:

The proper test for determining whether a question of law raised in the case is substantial

would, in our opinion, be whether it is of general public importance or whether it directly

and substantially affects the rights of the parties and if so whether it is either an open

1
Sham Sunder v. Puran, A.I.R 1990 4 SCC 731.
2
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 S.C.C. 212(S.C.).
3
Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., A.I.R. 1962 S.C. 1314.

15
 question in the sense that it is not finally settled by this Court or by the Privy Council or by

the Federal Court or is not free from difficulty or calls for discussion of alternative views.4

The jurisdiction conferred under Art. 136 on the SC are corrective one and not a restrictive one.5

A duty is enjoined upon the SC to exercise its power by setting right the illegality in the

judgments is well-settled that illegality must not be allowed to be perpetrated and failure by the

SC to interfere with the same would amount to allowing the illegality to be perpetuated. 6 It has

been held in plethora of cases that when the question of law of general public importance arises,

the jurisdiction of SC can be invoked by filing special leave petition. In the present case, the

issue involves matter of General Public Importance and hence, entitled to be maintainable.

Article 136 is the residuary power of SC to do justice where the court is satisfied that there is

injustice.7 The principle is that this court would never do injustice nor allow injustice being

perpetrated for the sake of upholding technicalities.8

The SLP challenges the constitutional validly of the provisions of the Juvenile Justice Act, 2014

as far as they are inconsistent with the provisions of the constitution. The provisions laid under

the Section 15 of the Act discriminate among the Juveniles and are violative of the Article 14, 15

and 21 of the constitution. The provisions are also violative of the international rules and

conventions that lay norms for protection of juveniles.

The SLP consist of a pure question of law and should be held maintainable. 9 Article 136 confers

on the Supreme Court to interfere in the exceptional cases where the laws are uncertain and there

4
Ibid.
5
Haryana State Industrial Corpn. V. Cork Mfg. Co., A.I.R. 2007 8 S.C.C. 359.
6
Pawan Kumar v. State of Haryana, A.I.R. 2003 11 S.C.C. 241 (S.C.); see also 1 H.M. Seervai, Constitutional
Law Of India (4th ed. 2010); see also 35 Halsbury‟s Laws of India (2007).
7
C.C.E v. Standard Motor Products, A.I.R.1989 1298 (S.C.), see also 1 H.M. Seervai, Constitutional Law Of
India (4th ed. 2010).
8
Janshed Hormusji Wadia v. Board of Trustees Port of Mumbai, A.I.R. 2004 3 S.C.C. 214 (SC).
9
State of U.P v. Indian Hume pipe co. Ltd., A.I.R. 1977 S.C.1132.

16
is substantial question of law.10 The SLP hence stands maintainable. The petitioner therefore

contends before the Hon‟ble Supreme Court of Indiana that the instant petition should be held

maintainable.

I.2. THE PETITIONER HAS EXHAUSTED ALL ALTERNATIVE REMEDIES.

The petitioner have exhausted all the alternative remedies for the protection of their legal and

constitutional rights and now have ended up on the gates of the Supreme Court and by the

present SLP the petitioners claim for protection of their rights. 11 It is an exceptional and

extraordinary power, 12 of a residuary and reserve nature 13 and, therefore, the province of its

exercise cannot be determined exhaustively. Therefore the petitioner contends that the SLP

should be maintainable as the petitioners have exhausted all the alternative remedies.14

I.3. THE DECISION OF LOWER COURTS CAUSES INJUSTICE.

The Petitioner challenges the decision of the lower court by the privilege given under Article

136 of the Constitution of Republic of Indiana.15 The Supreme Court can grant special leave to

any aggrieved by the decision of any lower court.16

In the case at hand, requisite and proper inquiries were not conducted regarding the identity of

the age of Shyama and the impugned order was passed mechanically without application of the

provisions of the Juvenile Justice (Care and Protection of Children) Act, 2014. Hence the matter

concerned is of great public importance. The SC is not precluded from going into the question of

10
Bengal Chemical Pharmaceutical Works ltd v. Employees, A.I.R. 1959 S.C. 633(635); TirupatiBalaji
Developer Pvt. Ltd. v. State of Bihar, A.I.R. 2004 S.C. 2351.
11
MI builders (P) ltd. v. Radhey Shyam Sahu, A.I.R.1999 S.C. 2468.
12
Dhakeshwari Cotton Mills v. C.I.T., A.I.R. 1955 S.C. 65.
13
Durga Shankar Mehta v. Thakur Raghunath Singh, A.I.R. 1954 S.C. 520.
14
Haryana State Industrial coprn. v. Cork mfg. Co., A.I.R. 2007 8 S.C.C. 120.
15
Kerala State Board v. Kurein E kalathil, A.I.R. 2000 6 S.C.C. 293.
16
The Supreme Court Rules, 1966, Art 136, Order XVI Ch. XXXVII, Sec. E.

17
facts under article 136, if it considers it necessary to do so.17

It is submitted that, the present facts in issue satisfy all of the above mentioned criteria. The case

involves the matter of general public importance and it directly and substantially affects the

rights of the parties as the order is erroneous and prejudicial to the interest of Children. The SLP

contains pure question of law and the challenges the decision of lower courts which cause abuse

of due process of law and injustice and stands maintainable.18 The constitution requests the apex

court to entertain the SLP under Article 136 as the matter lies within the complete discretion of

the SC and the only limit upon it is the wisdom and good sense of judges of court.19

CONTENTION II: THAT THE PROVISIONS OF THE JUVENILE JUSTICE (CARE &

PROTECTION OF CHILDREN) ACT, 2014 CLASSIFYING AMONG JUVENILES ARE

INVALID AND VIOLATIVE OF THE CONSTITUTIONAL AND INTERNATIONAL

PROVISIONS.

The Petitioners humbly submits that the Juvenile Justice laws is to cater the basic needs of

Children found to be in conflict with law by proper care, protection, development, treatment,

social re-integration, by adopting a child-friendly approach. In a drastic and regressive move, the

Act proposes the introduction of a transfer system so that children aged between 16 and 18 years

and alleged to have committed „heinous offences‟ should be tried and sentenced as adults by

provisions laid down in Section 15, Section 18(3) and Section 94(1) which treats adolescents as

adults, the provisions incorrectly categorizes among the juveniles in different categories. These

provisions are violative of constitutional provisions and international norms established for

protection of juveniles.

17
Kathi Raning Rawat v. The State of Saurashtra, A.I.R. 1952 991; see also Achyut Adhicary v. West Bengal,
A.I.R. 1963 1039 (S.C.).
18
A. Sukriyakala v. Mohan Doss and others, A.I.R. 2007 9 S.C.C. 196.
19
Bala Krishna Iyer v. Rama SwamIyer, A.I.R. 1965 S.C. 195.

18
II.1. THE PROVISIONS OF JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2014 CLASSIFYING AMONG JUVENILES IS VIOLATIVE OF

CONSTITUTIONAL PROVISIONS.

It is humbly submitted that the provisions which treat juveniles as adults treat two distinct

categories equally. This strikes at the very core of Article 14. The Supreme Court has repeatedly

endorsed as part of the Article 14 mandate that the principle that injustice arises not only when

equals are treated unequally,20 but also when unequal are treated equally.21 Juveniles are more

amenable to reform and are prone to rehabilitative interventions because of the plasticity of their

brains. The teenager‟s barins aren‟t completely developed and they are incapable of fully

understanding the consequences of their action. The neuro-scientific data shows that

frontal lobe, especially the pre frontal lobe is the last part in human brain to develop. Emotions

and moody nature of teens comes from the limbic system, which processes emotions but is still

developing.22 Juvenile Justice rules 2007 ensures principles of equality and non-discrimination

in Juveniles in conflict with law on the basis of age and that there should be equality in treatment

under the Act.23

As stated in an amicus brief for the American Psychological Association, the American

Psychiatric Association, and the National Association of Social Workers before the Supreme

Court of the United States. “Juveniles typically outgrow their antisocial behaviour as the

impetuousness and recklessness of youth subside in adulthood”.24 The provisions of universal

adult franchise have been inspired by the same analogy where the person attains sufficient

maturity to formulate correct opinions after he becomes a major that‟s why in the same vein the

constitution of Republic of Indiana guarantees right to vote to every citizen above the age of
20
Joginder Nath v. Union of India, A.I.R. 1975 S.C. 511.
21
M. Nagaraj v. Union of India, A.I.R. 2007 S.C. 71.
22
Bonnie & Scott, “The Teenage Brain: Adolescent Research and the Law”, Current Directions in Psychological
Science, 22(2) 158–161 (2013), p.162.
23
Juvenile Justice (Care and Protection of Children) Rules,2007 Rule 3 Clause X Chapter II.
24
Miller v. Alabama, 567 U.S. 2012.

19
eighteen years.25The Supreme Court held that the provisions of previous JJ act 2000 were valid26

and the constitutional validity of these provisions were upheld and it was stated that there is

noneed to treat juveniles below the age of 18 years as major criminals.27

Article 15(3) of the Constitution provides special legal provisions for women and children. The

indifferent treatment of children of 16 – 18 years old militates against this goal as well as the

overall objective of the Act to ensure care, protection, and the ultimate rehabilitation of children

in conflict with the law. The provisions under section 15 of the act requires the Juvenile Justice

Board to assess, along with the circumstances in which the heinous offence was allegedly

committed, whether the child offender had the physical and mental capability to commit the

offence. The latest research indicates that individualised assessments of adolescent mental

capacity are not possible. Any suggestion that it can be done would mean “exceeding the limits

of science. 28 Any therefore distinctly treating juveniles aged 16 – 18 years is a procedural

arbitrariness and against the principles of Article 14 which is the basic structure of the

constitution.29 It is arbitrary classification of equals which violative of article 14.30

Protection against disqualification violates the right to life under Article 21 and the right to

equality under Article 14. Children between 16 and 18 years found to be in conflict with the law

for committing heinous offence will incur disqualifications. These provisions are in gross

violation of both the concept, „Equality before law‟ and „Equal protection of the law‟ which are

the soul of Article 14, 31 the provisions of the Act make discriminatory classification among

25
Constitution of India, 1950 Article 326.
26
Subramanian Swamy v. Raju, A.I.R. 2014 8 S.C.C. 390.
27
Salil Bali v. Union of India, A.I.R. 2013.
28
Bonnie & Scott, “The Teenage Brain: Adolescent Research and the Law”, Current Directions in Psychological
Science, 22(2) 158–161 (2013), p.161.
29
Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477.
30
D.S. Nakara v. Union of India, A.I.R. 1983 130.
31
Ramesh Prasad v. State of Bihar, A.I.R. 1978 S.C. 327; Tamil Nadu Electricity Board v. R. Veeraswamy,
A.I.R. 1999 2 S.C.R. 221.

20
juveniles which violates the article 14 of the constitution. 32 While all children are protected

against disqualification attached to conviction, the act deprives children convicted of heinous

offences of this protection, thus discriminating among children based on the forum for trial, the

offence, and the age. The juveniles tried for heinous offence suffer disqualification under section

20 of the act for evaluation of reformative changes, which discriminates among juveniles in term

of stay and is violative of article 14 as they should be treated equally. 33In the provisions of

section 24(2) the right to life guaranteed under article 21 of such Juveniles is violated as the right

to life entails the right to livelihood as well as a life of dignity. This stands compromised through

the retention of the record of conviction and the withdrawal of protection from disqualification.

This also means affecting of „reformation‟ and the ability to make a positive contribution to

society based on another arbitrary assessment proposed under Section 21 will be rendered

meaningless, as the conviction will be held against the child for life.

It is humbly pleaded before the Hon‟ble court that 16-18 years is an extremely sensitive and

critical age requiring greater protection. Hence, there is no need to subject them to deterrent or

adult judicial system as it will go against provisions of the Constitution. As stated by the

Parliamentary Standing Committee on Human Resource Development. 34 Therefore the act

should be held void as it affects the rights guaranteed to the children by the part three of the

constitution35 of Republic of Indiana and is ultra vires to the provisions of the constitution.36

II.2. THE CLASSIFICATION OF JUVENILES IS AGAINST THE INTERNATIONAL

NORMS ESTABLISHED FOR JUVENILES.

Article 2 of the UNCRC requires all state parties to abide by the principle of non-discrimination

32
Kameshwar Singh v. State of Bihar, A.I.R. 1952 1 S.C.R. 889.
33
MadhuLimaye v. Supdt. Tihar Jail Delhi, A.I.R. 1975 1505; Sanaboina Satyanarayan v. Govt. of A.P., A.I.R.
2003 S.C.R. 874.
34
Parliamentary Standing Committee on Human Resource Development, 264th Report ¶ 3.21.
35
Golaknath V. State of Punjab, A.I.R. 1967 1643.
36
Keshvanand Bharti V State of Kerala, A.I.R. 1973 4 S.C.C. 225.

21
and ensure that all children in conflict with the law are treated equally. It follows that the

disadvantageous treatment of children based on their age and the nature of the offence they

allegedly commit would constitute a violation of Article 2. Through the introduction of a

transfer system and a preliminary assessment procedure to determine the capacity of a child to

commit the crime prior to the establishment of guilt, the JJ Act outs some of the most basic

tenets of the UNCRC. The transfer provisions grossly violate Article 2 of the UNCRC and

incorporates punitive goals that have no place in the juvenile justice system envisaged under the

UNCRC.

The CRC has strongly recommended that State Parties “abolish all forms of life imprisonment

for offences committed by persons under the age of 18.”Under Section 21 of the act, life

imprisonment with the possibility of release can indeed be imposed on children above 16 years.

This goes against the recent normative developments at the international level.

According to the Article 40(1) of the UNCRC, all children in conflict with the law must be

treated in a manner that is consistent with their sense of dignity and worth and reinforces their

respect for human rights and fundamental freedoms. The treatment must ensure promotion of

their reintegration into society. The JJ Act, 2014 ignores the aims of reintegration and restoration

of a child in conflict with the law, by providing for a highly arbitrary determination of their

capability to make „meaningful contributions‟ to society when they reach the age of 21 years. A

failure to pass this test would result in an automatic transfer to an adult jail. Even if a child is

found to have undergone reformative changes at the end of this assessment process however, she

or he will incur the disqualifications attached to the conviction, making it impossible to secure

gainful employment or stand for elections. In effect, reintegration would be impossible.

The UNCRC expressly requires that all children deprived of their liberty be separated from

adults. The CRC has clarified that this separation is not merely technical and “does not mean

22
that a child placed in a facility for children has to be moved to a facility for adults immediately

after he/she turns 18.” 37 In gross disregard of Article 37(c) and the Concluding Observation on

it, the JJ Act takes an untenable position on the separation of children from adults, by proposing

that the former be transferred to adult prisons if they fail an assessment of their reformation

when they complete 21 years of age. Such a transfer is incompatible with the clear prohibition

on the detention of children with adults under the UNCRC.

Section 15 of the JJ Act is in gross Violation of the presumption of innocence under Article

40(2) (b)(i) of the UNCRC . Presumption of innocence as the basic procedure safeguards that

are to be ensured for juveniles under trail.38 The section 15 requires the Juvenile Justice Board to

assess, along with the circumstances in which the child has allegedly committed the heinous

offence, whether he or she had the physical and mental capacity to commit it. This assessment,

the basis for transferring a child to the Children‟s Court, which is a designated Sessions Court,

operates on the assumption that the child has indeed committed the offence and thus violates the

cardinal principle of presumption of innocence under Article 40(2)(b)(i). Such arbitrary

assessments will invariably prejudice the trial before the Children‟s Court.

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty prohibits

discrimination on the basis of age for implementation of laws for juveniles39 and defines every

person below the age of 18 years as juvenile.40The UN convention on civil and political rights

prohibits deprivation of any person from protections to be provided by virtue of his status as a

minor.41

The Department-Related Parliamentary Standing Committee on Human Resource Development

on The Juvenile Justice (Care and Protection of Children) Bill, 2014 also noted that clauses

37
United Nation Convention on the Rights of Child Article 37.
38
United Nations Standard Minimum Rules for the Administration of Juvenile Justice Rule 7.
39
United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 Rule 4 part 1.
40
United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 Rule 11 part 2.
41
International Covenant on Civil and Political Rights Article 24.

23
15(3), 16(1), 19(3), 20(1), 20(3), 21, and 22 of the Bill constituted distinct violations of the

provisions of the UNCRC, 1989 and recommended their deletion. However, all these provisions

have been retained in the Bill passed by the Lok Sabha, which ironically cites the UNCRC in its

Preamble.42The act goes against the letter and spirit of the UN convention on child rights.

Therefore it is humbly pleaded before the Hon‟ble court that the Juvenile Justice act is

unconstitutional as much as in it treats juveniles differently. It ousts the criminal system and

judicial function of the court and judicial discretions as the matters fall within the jurisdiction of

the courts. Parliament cannot make laws that ousts the judicial function of the court.4344 The act

contemplates the adversarial inquiry by imposing prime focus on the crime but not the

circumstances.

Countries like U.K. Canada and USA have departed from the obligations under the

UN Convention and are in breach of their international commitments. The incidence of

crime by juveniles in those countries is very high and the statics show that the crime index is on

increase since the age of juveniles has been decreased. These countries which have introduced

the judicial waiver system have also accepted that this system has been ineffective and the

juveniles which are treated as adult tend to commit more serious offences in future and become

hardened criminal themselves.45

Therefore it is humbly pleaded before the Hon‟ble court that the provisions classifying among

on the basis age are immaterial and violative of constitutional provisions and international

norms. The juvenile justice system should seek to rehabilitate children, rather than punish them

for Juvenile criminal behaviour. They are regressive and arbitrary in nature and should held

void.

42
The Department-Related Parliamentary Standing Committee on Human Resource Development, 264th Report,
(para 3.29).
43
Mithu v. State of Punjab, A.I.R. 1983 2 S.C.C. 277.
44
Dadu v. State of Maharashtra, A.I.R. 2000 8 S.C.C. 437.
45
National Campaign to Reform State Juvenile Justice Systems (U.S.).

24
CONTENTION III. THAT THE EVIDENCE ON RECORD ARE INSUFFICIENT TO

PROVE THE OFFENCES OF WHICH SHEKHAR HAS BEEN CONVICTED.

In the instant matter, the lower courts have convicted Shekhar of the offences of Murder of

Vanita and Ravi and outraging the modesty of Vanita u/s 302, 304, 326 and 354 of the Indiana

Penal Code, 1860. With the evidence presented at the trial stage, there are insufficient and

inconclusive evidence to show that Shekhar (hereinafter the “accused” for contention III) is

indeed guilty of the aforementioned offences and an appeal has been filed for the review of

evidence de novo.

III.1. THE CIRCUMSTANTIAL EVIDENCES ARE INCONCLUSIVE IN NATURE.

The petitioners humbly submit before the Hon‟ble Court that the circumstantial evidence put

forward against accused are inconclusive in nature. As Jaffee says, „Propositions are true or

false; they are not "probable".46 In court as elsewhere, the data cannot 'speak for itself'. It has to

be interpreted in the light of the competing hypotheses put forward and against a background of

knowledge and experience about the world. 47 In the present case, the plausibility of the

hypothesis put forward against accused at the trial stage is inconclusive in nature. The

circumstances encompassing situation at hand fail to prove the factum probandum. The rules as

laid down by Wills on Circumstantial Evidence, other writers on the subject have repeated, and

are as follows:-(1.) The circumstances alleged as the basis of any legal inference must be strictly

and indubitably connected with the factum probandum. (2.) The onus probandi is on the party

who asserts the existence of any fact which infers legal accountability.48

The circumstantial evidence that accused had hatred towards Ravi and Vanita and they had a

fight few days prior to the omission are illogical as they derive mere imaginary hypothesis

46
Leonard Jaffee, „Of Probativity and Probability' 46 University of Pittsburgh, (Law Review 924, 934, 1985).
47
R. v. Prater, 1960 2 Q.B. 464.
48
J. F. B., The ALR, Vol. 16, No. 12, New Series Volume 7 (Oct. - Nov., 1868), pp. 705-713.

25
against accused. 49 Thus the available chain of circumstances fails to prove the proposed

hypothesis that the accused murdered Ravi and Vanita and at the same time fails to exclude any

other possible hypothesis. As observed by the Supreme Court of India in Bakhshish Singh v

State of Punjab50, “in a case resting on circumstantial evidence, the circumstances put forward

must be satisfactorily proved and those circumstances should be consistent only with the

hypothesis of the guilt of the accused.51 Again those circumstances should be of a conclusive

nature and tendency and they should be such as to exclude every hypothesis but the one

proposed to be proved.” It would be most appealing if the evaluation of evidence in a criminal

case could lead to a decision through a strictly logical process of consecutive steps.52 There must

be a chain of evidence so complete as not to leave any reasonable ground for the conclusion

consistent with the innocence of the accused53 and must show that in all human probability the

act must have been done by the accused54.

It is humbly pleaded before the apex court that is submitted that none of the existing

circumstances are concrete enough to prove the factum probandum, as the trial court arrived at

its conclusion relying on the illogical and irrelevant circumstantial evidences and the accused is

entitled to the benefit of doubt.55

III.2. RAMMANOHAR’S STATEMENT CANNOT BE RELIED UPON.

The Petitioner submits that the testimony of Ram Manohar is erroneous and lacks the requisite

probative value.As Section 59 defines oral evidence, which includes all the statements which the

49
Victor v. Nebraska, 511 U.S. 1994; People v. Jones, 27 N.Y.2d 222 1970.
50
Bakhshish Singh v State of Punjab, A.I.R. 1971 S.C. 2016 3 S.C.C. 182.
51
Harendra Narain Singh v. State of Bihar, A.I.R. 1991 S.C. 1842.
52
Deonandan Mishra v. State of Bihar, A.I.R. 1955 2 S.C.R. 570; Laxman Naik v. State of Orissa, A.I.R. 1995
S.C. 1387; Sharad v. State of Maharashtra, A.I.R. 1984 S.C. 1622.
53
Bakshish Singh v. State of Punjab, A.I.R. 1971 S.C. 2016; Ganpat v. State, 1987 Cr LJ 6 Del; State of H.P v.
Diwana, 1955 Cr LJ 3002.
54
Paramjeet Singh v. State of Uttarakhand, A.I.R. 2011 S.C. 200.
55
Budhwa v. State of M.P, A.I.R. 1991 S.C. 4.

26
court permits or requires to be made before it by witness.56 In the present case the statement of

Ram Manohar was recorded by investigation officer, as per provisions under section 161 of

CrPC read together with sec.157 of evidence act, the statement is not a substantive evidence.57In

the case of Sewaki v. State of H.P58, it was stated that the statement given to police officer during

investigation is neither given on oath nor is it tested by cross examination and hence is not

substantive evidence.

The facts state that the omission of crime occurred between 8:30 p.m. to 9:30 p.m. 59Statement of

Ram Manohar doesn‟t confirms about the time when he saw accused sneaking out of the

Basement, which is a legitimate ground for shaking the credit of the witness.60As Under the

provisions of Sec. 156 of Indiana evidence act it is a well settled law that such statements should

not be corroborated unless the statement is credible and disposes other relevant facts such as

time when the fact occurred.61To prove the guilt of accused it must be proved that he was at

crime scene at the time of omission not that he was present at the exhibition. Hence it is an

immaterial evidence and accused is entitled to benefit of doubt62 as mere presence of accused in

the exhibition is not a ground to prove him guilty, 63 unless the charges are proved beyond

reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence.64

As per the provisions of Section 9 of the evidence act, it was stated by the Apex court in the case

of Viseswaran v. state, 2003 Cri LJ 2548 SC65 that the identification of the accused must be

done either in identification parade or in the court as it is an important evidence and must be

56
B M Prasad & Manish Mohan, The Law of Evidence 387 ¶1 (25th Edition Ratanlal & Dhirajlal 2013).
57
HazariLal v. State(Delhi Admn.), A.I.R. 1980 S.C.C. (Cri) 458; Gaisuddin v. State of Assam, A.I.R. 1977 Cri
LJ 1512.
58
Sewaki v. State of H.P, A.I.R. 1981 Cri LJ 919.
59
¶2 Moot Problem.
60
Dial Singh Narain Singh v. Rajapal Jagan Nath, A.I.R. 1969 P&H 350.
61
B M Prasad & Manish Mohan, The Law of Evidence 788 (25 th Edition Ratanlal & Dhirajlal 2013).
62
Mangulu Kanhar v. State of Orissa, A.I.R. 1995 Cr LJ 2036 (ori); People v. Whalen, 59 N.Y.2d 273, 279
(1983); People v Beslanovics, 57 N.Y.2d 726 (1982); People v Newman, 46 N.Y.2d 126 (1978).
63
Shangara v. State of Punjab, A.I.R. 1995 S.C.C. (Cr.) 163.
64
Ashish Batham v. State of M.P., A.I.R. 2002 S.C. 3206; Taylor v. Kentucky, 436 U.S. 478 (1978); Winship,
397 U.S. 358 (1970); Taylor v. Kentucky; People v Antommarchi, 80 N.Y.2d 247, 252-253 (1992)
65
Viseswaran v. State, A.I.R. 2003 Cri LJ 2548 S.C.

27
presented with due care. In the present case no such measure were taken and hence the

Statement of Ram Manohar is not admissible. The identification parade is an essential measure

to be taken for proper identification of the culprit so as to test the veracity of the witness on the

question of his capability to identify, the unknown person.66 The court in case of Heer v. State of

Rajasthan,67it is desirable to conduct test identification parade to eliminate possibility of errors

in identification of culprit. The Rules adopted under the English Police and Criminal Evidence

Act, 1984 also recommends identity parade.

The petitioner humbly states by bare reference to the facts of the case and medical reports which

expressly states that out of the four culprits two pinned Vanita, while other two were trying to

outrage her modesty by tearing her clothes. Therefore all four of the culprits were in physical

contact from Vanita. The medical evidence and finger print reports make it clear that his

finger prints were not recovered from the body of Vanita. Which makes it evident that he was

not among the four culprits. The oral evidence presented by Ram Manohar are inconsistent with

the medical evidence and hence should not be relied upon.68

Therefore it is humbly contended before the Hon‟ble court that the golden thread which runs

through the web of administration of justice in criminal cases is that if two views are possible on

the evidence adduced in the case, one pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused should be adopted. This view has been

reiterated by the Supreme Court in a series of decisions thereafter. State of Goa v. Pandurang

Mohite69 , Murugan v. State70 and Perla Somasekhara Reddy v. State of A. P71 are a few among

them. And hence the criminal proceedings initiated against Shekhar in lower courts were based

on wrong and illogical inferences and evidences which do not prove case beyond reasonable
66
Kanan v. State of Kerala, A.I.R. 1979 Cr LJ 919; Chonampra v. State of Kerala, A.I.R. 1979 S.C. 1761.
67
Heer v. State of Rajasthan, A.I.R. 2007 S.C. 2425.
68
Ismail Ahmed v. MominBibi, A.I.R. 1941 ¶11;Jamadar Singh v. E., 21 (854)
69
State of Goa v. Pandurang Mohite, A.I.R. 2009 S.C. 1066.
70
Murugan v. State, A.I.R. 2009 S.C. 72.
71
Perla Somasekhara Reddy v. State of A. P, A.I.R. 2009 S.C. 2622.

28
doubt and hence are liable to be quashed.

CONTENTION IV: THAT THE CRIMINAL PROCEEDINGS INITIATED AGAINST

SHYAMA WERE INVALID AND BE QUASHED.

It is humbly submitted before the Hon‟ble court that in the instant matter, the lower courts have

convicted Shyama u/s 302, 304, 326 and 354 read with sec.34. With the evidence presented at

the trial stage, there is insufficient and inconclusive evidence to show that Shyama (hereinafter

for contention 4 the “accused”) is indeed guilty of the aforementioned offences and an appeal

has been filed for the review of evidence de novo. The proceedings against Shyama are violative

of the Due Process of law and are ultra vires to the provisions of Juvenile Justice (Care and

Protection of Children) Act, 2014. Shyama is a minor and lower courts without proper

verification treated him as a major which is against the juvenile justice system and violative of

several rights conferred to Shyama by constitution. Shyama was an innocent child in need of

care and imposition of such regressive punishments on him is against the principle of natural

justice.

IV.1. THE EVIDENCE ON RECORDS ARE INSUFFICIENT TO PROVE SHYAMA

GUILTY OF OFFENCES FOR WHICH HE IS CHARGED.

It is humbly submitted before the Hon‟ble court that the accused was a domestic worker

employed by Mr. Batra.72 He is a Child in need of care and protection as per the provisions of

Section 2(14) (ii) of the JJ act, 2014. The Child Labour (Prohibition & Regulation) Act, 1986

under schedule I prohibits the employment of children in domestic works. Shyama has been

employed since past six years as a domestic worker after he dropped out from sixth standard

when his age was definitely below 14 years. 73 Instead of providing care and protection to

72
¶1Moot Problem.
73
Hari Om Tripathi and Shourya Raj, Stages of School Education in India, www.urbanpro.com/a/stages-of-
school-education-in-india.

29
Shyama which is the objective of the Juvenile Justice System as per the preamble of the JJ act,

2014 the lower courts have imposed regressive sentence on Shyama which is like adding to the

whole lot of injustice already been caused to Shyama.

The petitioner presents a plea of alibi u/s 11 and 103 of evidence act as he was not present in

city of Brada on the day of crime and went to his village for which he took 3 days leave from

work. 74 Therefore his accusation is invalid as there are no sufficient evidence to prove his

presence 75 at the crime scene. 76 Rather the Circumstantial evidences strongly prove the

establishment of the plea of alibi.77 The lower court took into consideration the finger prints of

accused, found on the body of Vanita corroborating them with the circumstantial evidences as

per the section 8, Section 45 and section 114 of the Indiana Evidence Act, 1872. It is humbly

pleaded that since accused was a domestic worker and did all regular chores of Mr. Batra‟s

home. There are all possible chances of his finger prints being left on clothes of Vanita or her

body. The report of experts states that finger prints can fast for several days.78 In the case of

Babu Khan v. State of Rajasthan79 and R v. Buckley80 several factors and measures that have to

be taken care of while recovery and admission of finger prints are laid for admissibility of finger

prints. In the present case no such measures were taken care off. And therefore the expert advice

presented under Section 45 are not conclusive 81 as they do not exclude any other possible

hypothesis and are not enough to prove the guilt of the accused beyond reasonable doubt. 82 On

the contrary, the facts so established are very well explainable on any other hypothesis except

that the accused is guilty.

74
¶4 MooT Problem.
75
Central Bureau of Investigation v. V.C. Shukla, A.I.R. 1998 Cr LJ 1905.
76
Sangappa Nigappa Malabadi v. State of Maharashtra, A.I.R. 1987 (1) BomCR 576.
77
Dhananjoy Chatterjee v. State of W.B, A.I.R. 1994 2 S.C.C. 220; State of U.P v. Mukunde Singh, A.I.R. 1994
2 S.C.C. 191.
78
Simon Bunter, How long can an identifiable fingerprint persist, April 2014.
79
Babu Khan v. State of Rajasthan, A.I.R. 1997 S.C. 2960.
80
R v. Buckley, 1999 163 JP 561.
81
Madan Gopal Kakkad v. Naval Dubey and Anr., A.I.R. 1992 3 SCC 204; Emperor v.Fakir Mahomed, A.I.R.
1935 38 BomLR160.
82
Musheer Khan v. State of M.P., A.I.R. 2010 S.C. 762.

30
The fact that Shyama shared hatred towards Vanita and Ravi with Shekhar was an irrelevant

consideration as it was a mere repercussion of tormenting acts of Ravi and Vanita which is a

common human nature. Section 8 of evidence act makes only those circumstantial evidence

admissible which are essential complements of acts done 83 so that the acts itself acquire the

special significance. 84 As there is no relevant Nexus between the fact and the omissions the

admission of these evidences was immaterial.85It is therefore most respectfully submitted that

the Evidence presented is insufficient to sustain a conviction.

IV.2.SHYAMA SHOULD BE TREATED LIKE A MINOR.

It is humbly submitted before the Hon‟ble court that Shyama dropped out from sixth standard as

per the general analysis and reliance on the provisions of governments the average age of

students in sixth standard are below 12 years. Shyama has been working since past 6 years

instantly after dropping from school. Hence the age of Shyama is below 18 as admitted by

Shyama himself. Therefore Shyama should be treated like a minor.86

As per the Section 94(ii) of the juvenile justice act, 2014 in case of any doubt that weather the

accused is a child or not the committee or the board may try to obtain the birth certificate from

School or municipal corporations or by Bone ossification test or by another technique. Juvenile

Justice Rules, 2007 also recommends the same approach.87 As the facts of the case clearly states

there was negligence on the part of determination of his age as the investigation was only

restricted till municipal authorities. Even if the birth certificate or other documentary evidence

were not available, Bone ossification test should be used to determine his age as requested by

83
Sooraj v. State of Kerala, 1994 Cr LJ 1155 (ker); State of Maharashtra v. Vilas Pandurang, 1999 Cr LJ 1062.
84
Justice J V Chandrachud, The law of evidence 75 (21 st edition Ratanlal & Dhirajlal ,Wadhwa & Company).
85
Empress v. Rama Birapa, (1878) 3 BOM 12, 7.
86
Hari Om Tripathi & Shourya Raj
87
Juvenile Justice Rules 2007 Rule 12.

31
Shyama.88 As, it is a conclusive proof for determination of age especially in case of juveniles.89

IV.3.THERE WAS ABUSE OF DUE PROCESS OF LAW.

It is humbly submitted before the Hon‟ble court that the proceedings were erroneous and are

liable to be quashed. As, the proceedings are violative of several provisions of Juvenile Justice

Act, 2014: The proceedings were erroneous as violated several principles of law and rights

ensured to Shyama. Section 3(xvi) of the JJ act, 2014 ensure right to fair hearing and right to

review by all persons or bodies, acting in a judicial capacity under this Act. The proceedings

initiated against Shyama were based on the presumption of his guilt which violates Section 3(i)

of the Act which states that all the proceedings should be based on the presumption that the

juvenile is an innocent.90 The similar thought has been laid in the Beijing Rule 1990.

Arguendo: In the provisions of Section 15 and 19 of the JJ Act the juveniles of age 16 – 18

years could be treated as adult only in case of heinous crimes, if they are found capable of

committing crime and have sufficient maturity to understand the nature of crime. In such case

the board may refer the case to specially formed Children Courts in the Session Court having

jurisdiction to try the case.91 The session court found accused guilty u/s 304, 326 & 354 of IPC

which are not heinous offence and he was sentenced three years of imprisonment which is

invalid as in case of non-heinous offence no juvenile can be imprisoned but can be sent to

special homes for a maximum period of three years.92 As per the provisions of juvenile justice

Act session court is not authorized to take cognizance of non-heinous offences.93

It is further submitted that in non-heinous offence the case must be referred back to the Board.

The Sentence of Session courtandtherefore, the proceedings of JJ Board and session court are

88
Vishnu Undrya v. State Of Maharashtra, A.I.R. 2005.
89
Nazir Hossain Haider v. The State, A.I.R. 1997.
90
Juvenile Justice Rules, 2007 Chapter 2 Rule 3.
91
Juvenile Justice (Care and Protection of Children) Act, 2014 Section 18(3).
92
Juvenile Justice (Care and Protection of Children) Act, 2014 Section 18.
93
Juvenile Justice (Care and Protection of Children) Act, 2014 Section 15 and 18(3).

32
violative of the provisions of JJ act, 2014.

Section 107 of the JJ Act, 2014 states that the investigation in case of juveniles must be

conducted by special police formed under the provisions of the section. In the present no such

measures were taken and hence there was abuse of rights of the Shyama.

The High court refused the plea of Shyama against the order of Session court which was

erroneous and thus violates his right to appeal in court94 and other fundamental rights guaranteed

under part III of the constitution95 which is against the principle of natural justice,96 Principle of

non-waiver of rights97 and Principle of Right to be heard.98 The High court sentenced Shyama

for life imprisonment which is invalid as per the provisions of Section 21 Juvenile Justice Act,

2014 as it only permits life imprisonment with the possibility of release. The High Court while

acting in appellate jurisdiction relied majorly on the erroneous findings of the trail court to arrive

at the conviction of the accused and rejected his plea for bone ossification test. Which violates

his right to fair hearing guaranteed under the constitution.99 The high court doesn‟t looks the

facts and evidence of the case de novo.100

The Universal Declaration of Human Rights provides for “full equality to a fair and public

hearing by an independent and impartial tribunal.” 101 The European Convention on Human

Rights102 and International Covenant for Protection of Civil and Political Rights103 also provides

for the same.

94
Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 [1988].
95
Delhi Transport Corporation v. DTC Mazdoor Union, A.I.R. 1990 S.C.R. 1 142; Maneka Gandhi v. Union of
India, A.I.R. 1978 597; Hussainara Khatoon v. Home Secretary State of Bihar, A.I.R. 1979 S.C.R. 532; Nandini
Satpathy v. P.L. Dani, A.I.R. 1978 1025;
96
Juvenile Justice (Care and Protection of Children) Act, 2014 Section 3 (xvi).
97
Juvenile Justice (Care and Protection of Children) Act, 2014 Section (ix).
98
Juvenile Justice Rules, 2007 Clause III Rule 3.
99
Constitution of India Article 21.
100
State Of Rajasthan v. N.K, A.I.R. 2000 S.C.W. 1407;R v. Sharp, 1988 1 All ER 65, HL.
101
Universal Declaration of Human Rights Article 10.
102
European Convention on Human Rights Article 15.
103
International Covenant for Protection of Civil and Political Rights Article 6.

33
It is humbly submitted to this Hon‟ble court that if the decision of lower courts is allowed to

stand, then it would not only be an infringement on the very principles of natural justice, but also

an infringement of Shyama‟s rights as a child and hence abridge his right to have a fair trial.

34
 PRAYER

Wherefore In The Light Of The Issues Raised, Argument Advanced, Reasons Given And

Authorities Cited, This Hon‟ble Court May Be Graciously Pleased To:

TO HOLD

THAT THE SPECIAL LEAVE PETITION SHOULD BE ALLOWED.

TO DIRECT

ORDER THE ACQUITTAL OF SHYAMA AND SHEKHAR.

FRESH INVESTIGATION AND EXAMINATION OF RAM MANOHAR.

DETERMINATION OF THE AGE OF SHYAMA BY THE COMPETENT AUTHORITY.

TO SET ASIDE

THE ORDER PASSED BY THE HIGH COURT, SESSION COURT AND JUVENILE

BOARD.

MISCELLANEOUS

AND ANY OTHER RELIEF THAT THIS HON‟BLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd/-
………………………………
COUNSELS FOR THE PETITIONER

35