Before

THE HONOURABLE HIGH COURT OF DELHI, NEW DELHI,

APPLICATION NO. _____/2013

Athletica Ganges……………………………………….………………………... Petitioner

v.

Government of India .............……………...………………............................ Respondent

With

CONTEMPT PETITION NO. _____/2013

Athletica Ganges...………………………………………………………..………Petitioner

v.

Government of India..............................................……..….………..……… Respondent

0
 TABLE OF CONTENTS

Table of Contents........................................................................................................................I

Index of Abbreviations..............................................................................................................II

Index of Authorities..................................................................................................................III

Statement of Jurisdiction..........................................................................................................VI

Statement of Facts..................................................................................................................VII

Questions Presented.................................................................................................................XI

Summary of Pleadings...............................................................................................................1

Pleadings....................................................................................................................................2

1. THE INVESTIGATION WAS ERRONEOUS AND UNFAIR..................................................2

1.1. The F.I.R. was Invalid..............................................................................................2

1.2. Non-Mentioning of the Names of Assailants in F.I.R:.............................................5

1.3. Appreciation of the Testimony of PW-1:..................................................................5

1.4. Recovery of the car and other items on personal search and statements of

disclosure leading to recovery............................................................................................7

2. THE PROSECUTRIX’S DYING DECLARATION IS UNACCEPTABLE AND INADMISSIBLE

IN THE COURT OF LAW:........................................................................................................9

2.1. The Court has to make sure as to what was actually the statement of the deceased

man:…………………………………………………………………………………….10

2.2. The court has to make sure whether the person making the dying declaration had

the oppurtunity of identifying the person implicated:......................................................11

2.3 Infirmities in recording of Dying Declaration………………………………………….12

3. THE TRIAL COURT PROCEDINGS FOR THE JUVENILE INVALID...............................16

3.1 The Matriculation Certificate was a valid proof of Age…………………………...17

3.2 Special Law prevails over General Law……………………………………………23
Prayer
-Table of Contents- -Appellants-

INDEX OF ACRONYMS AND ABBREVIATIONS

AIR All India Reporter

A.P. Andhra Pradesh
All Allahabad
Anr. Another
BOM Bombay
Cri Criminal
Cri LJ Criminal Law Journal
CrPC Criminal Procedure Code
Ed Edition
F.I.R First Information Report
Hon’ble Honourable
ILR Indian Law Reports
MAD Madras
No. Number
Ori Orissa
¶ Paragraph
p. Page number
P.W. Prosecution Witness
Rep. Represented
r/w Read With
S. S.
§ §
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sd/- Signed
U.P. Uttar Pradesh
u/s Under S.
v. V.
Vol. Volume

II
 INDEX OF AUTHORITIES

STATUTES

 The Code of Criminal Procedure,1973

 The Constitution of India, 1949
 The Indian Penal Code,1860
 The Indian Evidence Act,1872
 The Juvenile Justice (Care and Protection of Children) Act, 2000

Cases

Sl.No. Case Name

1. Aghnoo Nagesia v. State of Bihar;AIR 1966 SC 119
2. Anter Singh v. State of Rajasthan;2004 10 SCC 657
3. Arnit Das v. State of Bihar; (2000) 5 SCC 488
4. Arumugam v. State Rep. by Inspector of Police, Tamil Nadu; AIR 2009 SC
331
5. Ashwani Kumar Saxena v. State of M.P.; (2012) 9 SCC 750
6. Bathula Nagamalleswara Rao & Ors vs State Rep. by Public Prosecutor;
Criminal Appeal 1097 of 2006
7. Bhagwan Singh v. State of M.P, 2002 4 SCC 85
8. Bhoop Ram v. State of U.P.; (1989) 3 SCC 1
9. C.Magesh & Ors v. State Of Karnataka; Criminal Appeal NOS.1028-1029
OF 2008
10. Dilip Kumar Roy v. The State ; 1988 Cr.L.J.(NOC) 7130; 1988 (3) Crimes
530 (Cal)
11. Dilip Saha v State of West Bengal; 1979 Cri LJ 88(FB)
12. Gadadhar Pati v. Banshidhar Pati; 1992 CriLJ 1811
13. Re: Guruswami Tevar and Ors. ; A.I.R 1940,Mad 196
14. K. Ramachandra Reddy v Public Prosecutor; A.I.R 1976 S.C. 1994: 1976
Cr.L.J.(S.C.)1548
15. Kajal Sakar v State of Assam 1993 Cr LJ 3869
16. Khushal Rao v. State of Bombay; AIR 1958 S.C. 22: 1992 Cr. L.J.(S.C)106
17. Laxman Kumar v State of Delhi Admnistration; AIR 1986 S.C. 250
18. Mahendra Pratap Singh v. State of U.P; Criminal Appeal NO. 34 OF 2006
19. Mallana v. State of Karnataka; Criminal Appeal 298 of 2000
20. Mani Ram v. State of Madhya Pradesh; A.I.R. 1994 S.C.840
21. Meghaji Godadji Thakore v. State of Gujarat, 1993 Cr LJ 730
22. Moti Singh v State of UP, AIR 1964 S.C.900
23. Mukarrab Etc v. State Of U.P; (2017) 2 SCC 210
24. Nanhar and Ors. v. State of Haryana;Criminal Appeal No. 2496 of 2009
25. Nisar Ali v. The State of Uttar Pradesh;AIR 1957 SC 366;
26. Pa¶mbaka Rosamma v. State of Andra Pradesh
27. Premchandra v. State of Punjab;1984 Cr.L.J 1131
-Index of Authorities- -Appellants-

28. Pren Joseph alias Current Kunjukunju & ORS. v. The State of Kerala; 1973
AIR, 1 1973 SCR (2) 16 )
29. Raghbir v. State of Haryana; (1981) 4 SCC 210
30. Rajinder Chandra v. State of Chhattisgarh and Anr.; (2002) 2 SCC 287
31. Raju and Anr. v. State of Haryana; (2010) 3 SCC 235
32. Ram Manorath v. State of UP; 1981 SCR (3) 195
33. Ramavati Devi v State of Bihar, AIR 1983 S.C. 164
34. Ramesh Baburao Devaskar & Ors vs State Of Maharashtra; Criminal Appeal
844-846 of 2005
35. Ranbir Singh Tyagi v. State Nct of Delhi; CRL.A.No.352/2000
36. Rohtas v. State of Haryana; (1979) 4 SCC 299
37. Sambhu Bora v. State of Assam; 1982 Cr.L.J. 1027 (Gau.) (D.B)
38. Sankar Rana v Lohar Rana; 1995 Cr. LJ 3570
39. Sant Gopal v state of UP 1995 Cr LJ 312(All)
40. Saudagar Singh v State of Haryana; AIR 1998, SC28
41. Shah Nawaj v. State of U.P. & Anr; (2011) 9 S.C.R. 859
42. Shyamaghana v State of Orrisa;1987 Cr LJ 952
43. Smt. Paniben v. State of Gujarat; 1992 All. Cri.R.530: 1992 Cr.L.J.2919(S.C)
44. State of Gujarat V. Jayrajbhai Punjabhai Varu; Criminal Appeal No. 1236 of
2010]
45. State of UP v. Ram Sagar Yadav A.I.R 1985 S.C.416;
46. Sunil Kumar Sambhudayal Gupta & Ors. v. State Of Maharashtra; Criminal
Appeal NO. 891 of 2004
47. Suraj Singh v. State Of Uttar Pradesh; Criminal Appeal NO.1072 OF 2004
48. Syed Ibrahim v. State of A.P., AIR 2006 SC 2908;
49. Tapinder Singh v State of Pinjab, AIR 1970 S.C. 1566
50. Thulia Kali v. State of Tamil Nadu; 1973 A.I.R 501, 1972 SCR (3)622
51. Umesh Chandra v State of Rajasthan; 1982 Cri LJ 994
52. Vimal Chadha v. Vikas Choudhary and Another; (2008) 15 SCC 216

BOOKS AND AUTHORITIES USED

 Ahmad Siddique’s, Criminology,(7th Ed,2016)

 B.B.Panda, Laws Relating To Dying Declaration,(1st Ed. 2002 )
 Ratanlal & Dhirajlal, The Code Of Criminal Procedure,(20th Ed, 2012)
 Ratanlal & Dhirajlal, Law Of Crimes, II, (27th Ed, 2013)
 Ratanlal & Dhirajlal, The Indian Penal Code, (34th Ed, 2014)
 Ratanlal & Dhirajlal, The Law Of Evidence, (25th Ed, 2013)
 Central Law Publication, Offences Against Children and Juvenile Offence, (2nd Ed.,
2016)
-Index of Authorities- -Appellants-

 Oxford University Press, The Juvenile Justice System in India- From Welfare to
Rights, (1st Ed., 2004)
RULES

 Juvenile Justice (Care and Protection of Children) Rules, 2007

 STATEMENT OF JURISDICTION

The Appellant humbly submits this memorandum for petitions filed before this

Honourable Court clubbed together by the Honourable Court. The appeal invokes its

jurisdiction under Art. 134, the Constitution of India, 1949. It sets forth the facts and the

laws on which the claims are based.

 STATEMENT OF FACTS

I.

On 16th December, 2015, one Sunita (hereinafter prosecutrix), a twenty two year old medico
along with one Suneel (hereinafter P.W-1), friend, readily accepted lift from one Shri Naveen
along with three co-students named Ramesh, Suresh and Dinesh (minor) (hereinafter
accused) in a classic Car ‘Innova’ 7seater, with all gadgets, bar, pillows and CC TV Camera
etc., installed. The lift was taken at Jawahar Circle to be dropped at girls’ hostel. The accused
threw P.W-1 in a forest beyond Jagatpura after robbing and threatening him of murder, where
he became unconscious. The prosecutrix was rendered naked and the four (the accused)
assaulted her in the Car, one by one. Her uterus, vagina and other parts were damaged by
iron-rod and then she was thrown out of the car, naked. P.W-1 survived. Shri Raj Kumar
(P.W-72) contacted control room. P.W-1 was taken to SMS Hospital in a PCR van for his
treatment. The Prosecutrix was found unconscious and naked by the police, was provided
with clothes and was carried to SMS Hospital and later to New Delhi where she succumbed
to her injuries.
With wide publicity given to the incident, the Government agency became active. Among the
seized items were-
i) Innova Car RJ-14c-476
ii) Iron Rod
iii) Whiskey Bottle and glasses
iv) CC TV footage

The accused were arrested. Among the recovered items were-

i) Mobile phones of prosecutrix and P.W-1
ii) Lady wrist watch of Sonata
iii) Stained clothes
iv) Rs 1000/-

All the accused were medically examined where the MLCs of all the first three accused
showed various injuries on their person, the struggle marks. Dying declaration of the
deceased was also recorded in SMS Hospital. DNA tests were done.
FIR was filed on 20th December 2015 by P.W-1, which was handed over to S.I. Pratibha
Sharma (P.W-80) for investigation. Charge sheet filed on 3rd January 2016 under § 376(2)(g),
302, 120-B, 377, 365, 366, 396, 397, 307, 412, 201 and 34 of IPC and § 354(3) and 235(2) of
Cr. P.C.
II.
-Statement of Facts- -Appellants-

Trial Court
After the case was committed to the Court of Sessions, all the accused were charged. The
prosecution examined 82 witnesses and thereafter, the statements of the accused persons were
recorded. Subsequently three more prosecution witnesses were examined and on behalf of the
defense, two witnesses were examined. Learned Session’s Judge vide judgment dated
10.09.2016 convicted all the accused persons.
§ Of Relevant Statutes The Crime The Accused Are Charged Under
Accused Are Charged
Under
120B IPC Offence of Criminal Conspiracy
365/366 IPC r/w 120B IPC Abducting the victims with an intention to force the
prosecutrix to illicit intercourse
307 IPC r/w 120B IPC Attempting to kill P.W-1
376(2)(g) IPC Committing gang rape with the prosecutrix
377 IPC r/w 120B IPC Committing unnatural offence with the prosecutrix
395 IPC Conjointly committing dacoity in pursuance of the
aforesaid conspiracy
397 IPC r/w 120B IPC Use of iron rod and for attempting to kill PW-1 at the
time of committing robbery
201 IPC r/w 120B IPC Destroying of evidence
412 IPC Possession of stolen property, known to them to be a
stolen booty of dacoity committed by them

After recording the conviction, as aforesaid, the learned trial judge imposed the sentence:
i. The convicts Naveen, Ramesh, Suresh and Dinesh (after holding he is above 17
years)- sentenced to death with fine of Rs. 10,000/- to each, on non-payment simple
imprisonment of one month;
ii. u/s 120-B IPC- life imprisonment to each of the convict and fine of Rs. 5000/- to each
of them. In default of payment of fine simple imprisonment for one month to such
convict;
iii. u/s 365 IPC- seven years imprisonment to each of the convict and fine of Rs. 5000/-
to each of them. In default of payment of fine simple imprisonment for one month to
such convict;
iv. u/s 366 IPC- seven years imprisonment to each of the convict person and fine of Rs.
5000/- to each of them. In default of payment of fine simple imprisonment for one
month to such convict;
-Statement of Facts- -Appellants-

v. u/s 376(2)(g) IPC - life imprisonment to each of the convict person with fine of Rs.
5000/- to each of them. In default of payment of fine simple imprisonment for one
month to such convict;
vi. u/s 377 IPC- imprisonment of ten years to each of the convict person and fine of Rs.
5000/- to each of them. In default of payment of fine simple imprisonment for one
month to such convict;
vii. u/s 307 IPC – imprisonment of seven years to each of the convict person and fine of
Rs. 5000/- to each of them. In default of payment of fine simple imprisonment for
one month to such convict;
viii. u/s 201 IPC- imprisonment of seven years to each of the convict person and fine of
Rs. 5000/- to each of them. In default of payment of fine simple imprisonment for
one month to such convict;
ix. u/s 395 r/w S. 397 IPC- imprisonment of ten years to each of the convict person and
fine of Rs. 5000/- to each of them. In default of payment of fine simple imprisonment
for one month to such convict;
x. u/s 412 IPC- imprisonment of ten years to each of the convict person and fine of Rs.
5000/- to each of them. In default of payment of fine simple imprisonment for one
month to such convict”
The learned trial Judge directed the sentences under § 20B/365/366/376(2)(g)/377/201/395/
397/412 IPC to run concurrently and that the benefit under S. 428 Cr.PC would be given
wherever applicable. He further recommended that appropriate compensation under S. 357A
CrPC be awarded to the legal heirs of the prosecutrix. That apart, as death penalty was
imposed, he referred the matter to the High Court for confirmation under S. 306 CrPC.

III.

High Court
The High Court vide judgment dated 13.3.2017, affirmed the conviction and confirmed the
death penalty imposed upon the accused by expressing the opinion that under the facts and
-Statement of Facts- -Appellants-

circumstances of the case, imposition of death penalty awarded by the trial court deserved to
be confirmed in respect of all the four convicts.
QUESTIONS PRESENTED

1. WHETHER THE INVESTIGATION WAS ERRONEOUS AND UNFAIR?

2. WHETHER THE PROSECUTRIX’S DYING DECLARATION IS ACCEPTABLE AND ADMISSIBLE

IN COURT OF LAW?
3. WHETHER THE TRIAL COURT PROCEEDING FOR THE JUVENILE VALID?
SUMMARY OF PLEADINGS

THE INVESTIGATION WAS ERRONEOUS AND UNFAIR:

It is most humbly submitted that the investigation of the alleged assault has been
conducted in an unfair manner which is biased against the appellants. There are several
loopholes in the investigation such as the unjustified delay in lodging of F.I.R by the PW-
1, non- mentioning of names any of the assailants in the F.I.R, inconsistencies and
omissions in the testimony of PW-1, seizure of key evidence after the formal arrest of the
appellants, and non compliance with the due process of investigation. All these lacunas
raise a serious doubt in the prosecution’s case against the appellants.

THE PROSECUTRIX’S DYING DECLARATION IS UNACCEPTABLE AND INADMISSIBLE IN

COURT OF LAW:

It is most humbly submitted that that the dying declaration of the prosecutrix is
inadmissible in court of law. There are a lot of ambiguities regarding the statement of
deceased. The statement doesn’t mention the names of the assailants. Further, under
which conditions had the dying declaration been recorded has not be mentioned. The
perquisite of dying declaration which is ‘fit state of mind’ has not been taken into
consideration while recording the statement. Further, the guild lines provided by the
Supreme Court in registering a dying declaration have not been followed. Thus, there
are several lapses which render the prosecutrix’s dying declaration as unacceptable.

THE TRIAL COURT PROCEEDING FOR THE JUVENILE IS INVALID:

It is humbly submitted before the Hon'ble Supreme Court of India that accused, Dinesh
was a juvenile at the time of the commission of the offence according to the
matriculation certificate. The matriculation certificate is a valid proof of age and is
given higher preference over the medical certificate and therefore the provisions of the
Juvenile Justice(Care & Protection) Act should be applicable to the minor and that the
Court is not allowed to infringe the special laws applicable to the juvenile.
-Pleadings- -Appellants-

PLEADINGS

1. THE INVESTIGATION WAS ERRONEOUS AND UNFAIR:

The Appellants plead that investigation conducted is flawed on many a score which renders it
biased against the Appellants. The investigation is not only inconsistent but also unreliable
which deserves chastisement and warrants rejection. Many facets of the investigation like the
delayed registration of First Information Report (F.I.R), no names of accused mentioned in
the F.I.R. or taken by the deceased in the dying declaration, inconsistencies and omissions in
the testimonies of the Prosecution Witness (P.W- 1); Suneel, the manner and procedure of
search and seizure etc. show that there is a lacuna in the investigation rendering it unfair and
biased against the appellants. The procedure in which the investigation has taken place
strengthens the stance that it does not meet the standard and test determined by law. The
evidence like the bottles and the dying declaration need to understood appositely and
scrutinized to adjudge the fact whether the appellants are guilty of their culpability or there
has been public pressure to falsely implicate the appellants.

1.1 The F.I.R is invalid

1.1. A: There was a delay in registration of FIR by Suneel.

The First Information Report (F.I.R.) has been launched on 20 th December 2015; four (4)
days after the alleged assault on 16th December 2015 by the Prosecution Witness (P.W- 1)
Suneel the other victim in the alleged assault. This delay in the F.I.R raises serious doubt on
the veracity of the statements. Delay in setting the law into motion by lodging of complaint in
court or F.I.R. at police station is normally viewed by courts with suspicion because there is
possibility of concoction of evidence against an accused. Therefore, it becomes necessary for
the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a
cloud of suspicion on the case of the prosecution would depend upon a variety of factors.

The Supreme Court in Thulia Kali v. State of Tamil Nadu1 observed that;

1
1973 A.I.R 501, 1972 SCR (3)622
-Pleadings- -Appellants-

“First information report in a criminal case is an extremely vital and valuable piece of
evidence for the purpose of corroborating, the oral evidence adduced at the trial. The
importance of 'the above report can hardly be overestimated from the standpoint of the
accused. The object of insisting upon prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information regarding the circumstances in which
the crime was committed, the names of the actual culprits and the part played by them as
well as the names of eye witnesses present at the scene, of occurrence. Delay in lodging the
first information report quite often results in embellishment which is a creature of
afterthought. On account of delay, the report not only gets bereft of the advantage of
spontaneity, danger creeps in of the introduction of coloured version exaggerated account or
concocted story as a result of deliberation and consultation.”

The Supreme Court reiterated the importance of prompt reporting of F.I.R in Pren Joseph
alias Current Kunjukunju & ORS. v. The State of Kerala2 as;

“It is very useful if the information is recorded before there is time and opportunity to
embellish, or before the informants' memory fades. Undue or unreasonable delay lodging the
F.I.R., therefore, gives rise to suspicion which put the Court on guard to look for the
possible motive and the explanation for the delay and consider its effect on the
trustworthiness of the prosecution version.”

The apex court though has held that the delay is not fatal till it is reasonably explained by the
prosecution. In Bathula Nagamalleswara Rao & Ors vs State Rep. by Public Prosecutor 3; the
court held that delay in lodging of FIR, if justifiably explained, will not be fatal. An undue
delay in lodging a First Information Report is always looked with a certain amount of
suspicion and should as far as possible be avoided.

In the present case, the prosecution hasn’t put forward any explanation regarding the undue
delay in lodging of the F.I.R by the PW-1. This raises a serious doubt in the manner in which
the investigation has taken place. Delay in setting the law into motion by lodging of
complaint in court or F.I.R at police station is normally viewed by courts with suspicion
because there is possibility of concoction of evidence against an accused 4. There has been an
unreasonable delay in lodging of F.I.R and thus a benefit of doubt must be given to the

2
1973 AIR, 1 1973 SCR (2) 16 )
3
SC Appeal (Crl.) 1097 of 2006
4
Gadadhar Pati v. Banshidhar Pati; 1992 CriLJ 1811
-Pleadings- -Appellants-

appellants. In a criminal jurisprudence, all the evidence must be proven beyond reasonable
doubt and this onus is on the prosecution. Whereby the very F.I.R, which is the very first step
of putting the law in motion has been unreasonably delayed, it raises disbelieve and
dubiousness.

The object of a prompt lodging of F.I.R is to obtain prior information regarding the
circumstances in which the crime is committed, the names of actual culprits and the part
played by them as well as the name of the eye witnesses 5. In the present circumstances, the
very F.I.R was lodged 4 days after the alleged assault. Thus the F.I.R could reasonably be
seen to a concocted story or a figure of imagination. It further raises impression of a coloured
statement and thus it would be erroneous to prosecute the appellants based upon such an
F.I.R.

1.1. B: The F.I.R was not valid

Investigation under Sec 2(H) of Code of Criminal Procedure,

“Investigation" includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised
by a Magistrate in this behalf;

F.I.R recorded in course of investigation of cognizable offence is inadmissible 6.Searches are

also proceedings for the collection of evidence and therefore part of the investigation under S.
2(h)7. It was held by the Supreme Court that a First Information Report cannot be lodged in a
murder case after the inquest has been held8.When searches and seizure of evidence; the
Innova Car No. RJ-14c-476, iron rod, whisky bottles and glasses and CC TV footage, were
all seized by the police before the appellants were arrested. It was only the prosecutorix’s and
Suneel’s(P.W-1) mobiles along with a lady wrist watch made of Sonata, the prosecutorix’s
stained clothes and Rs. 1,000/- were recovered after the arrest of the appellants. Therefore, in
this case the seizure of some of the items of evidence had taken place prior to the lodging of
F.I.R. Thus, the F.I.R would be void as it is recorded in course of investigation.

5
Meghaji Godadji Thakore v. State of Gujarat, 1993 Cr LJ 730; Bhagwan Singh v. State of M.P, 2002 4 SCC 85
6
1986 Crl .L.J 1620 ; AIR 1957 SC 366; AIR 1966 SC 119
7
ILR 1978 2 Punj 305
8
Ramesh Baburao Devaskar & Ors vs State Of Maharashtra; Appeal (crl.) 844-846 of 2005
-Pleadings- -Appellants-

1.2: Non-mentioning of assailants in the FIR

F.I.R which is the first step in setting the law in motion to catch the accused in the criminal
trial, didn’t mention the names of the assailants. The FIR is not a catalogue of events; it is
required to contain the basic features of the prosecution’s case as it sets the law in motion 9.
The basic features of the prosecution’s case do involve mentioning the names of the
assailants. Apart from the non-mentioning of the names in F.I.R by the PW-1, the
prosecutorix also failed to mention the names of the appellants in her dying declaration,
which has been dealt with in Issue 2. This omission is fatal to the prosecution’s case against
the appellants. The omission has to be considered in the backdrop of the entire factual
scenario, the materials brought on record and objective weighing of the circumstances. In the
present case, it has already been pointed out that there is a delay in lodging of the F.I.R
though sufficient time had elapsed after the incidence. Further, the procedure adopted by the
police in seizure of the items, clearly show that the correct and due process of law had not
been adopted by the investigating agencies.

In Mallana v. State of Karnataka10, the Supreme Court held that,

“Accused person not named in the F.I.R although they were known to the informant, for
whom no explanation has been furbished by the prosecution; on this ground alone that
accused is entitled to benefit of doubt.”

Thus, the aforementioned entitles the appellants to a benefit of doubt. The impact of the
omission has to be adjudged in the totality of the circumstances and the veracity of the
evidence. The entire evidence and procedure adopted by the investigating agencies seems
questionable and therefore the appellants should be entitled to benefit of doubt.

1.3: Appreciation of the Testimony of PW-1

There have been inconsistencies and omissions amounting to contradictions in the testimony
of PW-1. It is contended that the testimony of PW-1 renders his evidence undependable and
merely because he is an injured witness, his evidence cannot be accepted. Omissions and
contradictions in the statement of witnesses make the statement weak and slippery.
Inconsistencies and omissions of important facts in an FIR lodged by the witness to the
occurrence must be taken a serious note and would affect the veracity of the prosecution’s
9
Sankar Rana v Lohar Rana; 1995 Cr. LJ 3570
10
Criminal Appeal 298 of 2000
-Pleadings- -Appellants-

case11. In some circumstances, witnesses may not inspire confidence and if their evidence is
found to be in conflict and contradiction with other evidence or with the statement already
recorded, in such a case it cannot be held that the prosecution proved its case beyond
reasonable doubt12. Thus, inconsistencies in the statement of the PW- 1 make an unreliable
and untrustworthy witness and create a reasonable doubt.

The Supreme Court in Suraj Singh v. State Of Uttar Pradesh13 held that;

“The evidence must be tested for its inherent consistency and the inherent probability of the
story; consistency with the account of other witness is held to be creditworthy. The probative
value of such evidence becomes eligible to be put into the scales for a cumulative
evaluation.”

The Apex Court in C.Magesh & Ors v. State Of Karnataka14 observed that;

“It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on
the touchstone of consistency. Needless to emphasise, consistency is the keyword for
upholding the conviction of an accused…..In a criminal trial, evidence of the eye witness
requires a careful assessment and must be evaluated for its creditability. Since the
fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is
guilty until proven so", hence utmost caution is required to be exercised in dealing with
situations where there are multiple testimonies and equally large number of witnesses
testifying before the court. There must be a string that should join the evidence of all the
witnesses and thereby satisfying the test of consistency in evidence amongst all the
witnesses.”

The statement of the witness must inspire confidence and must be free from material
contradictions and blemishes. It should be in a chain of events. The PW-1 was not an eye
witness to the assault of the prosecutorix.According to the prosecution, he was thrown out of
the Innova Car No. RJ-14c-476; earlier on the date of the alleged assault in a dense forest
beyond Jagatpura after being allegedly robbed. Thus he was not actually present during the
alleged assault. Thus it is not possible for the witness to know each and every tiny detail of
the alleged assault. As a result, contradictions go root to the case and materially affect the
11
Shyamaghana v State of Orrisa;1987 Cr LJ 952
12
Mahendra Pratap Singh v. State of U.P; Criminal Appeal NO. 34 OF 2006
13
Criminal Appeal NO.1072 OF 2004
14
Criminal Appeal NOS.1028-1029 OF 2008
-Pleadings- -Appellants-

very case of the prosecution. It has been observed by the Supreme Court time and again that
where the contradictions amount to material contradictions, it results in discrediting the
witness. The material discrepancies corrode the credulity of the witness15.

The Supreme Court in Sunil Kumar Sambhudayal Gupta & Ors. v. State Of Maharashtra 16
held that;

“The omissions which amount to contradictions in material particulars i.e. go to the root of
the case/materially affect the trial or core of the prosecution's case, render the testimony of
the witness liable to be discredited.”

Hence, the testimony of PW-1, which has material contradictions, is liable to be discredited.

1.4: Recovery of the Car and other items on personal search and statements of disclosure
leading to recovery

The investigating authorities have seized the following items prior to the arrest of the
appellants and presented it as evidence,

 Innova Car No. RJ-14c-476

 Iron Rod
 Whisky bottles and Glasses
 CC TV footage

After the appellants had been arrested the following items have been recovered by the
investigating authorities;

 Prosecutorix’s and PW-1 mobiles

 A lady wrist watch of Sonata company,
 The prosecutorix’s stained clothes
 Rs. 1,000/- robbed from PW-1

S. 100(4) and (5) of Cr.P.C; states

(4) Before making a search under this Chapter, the officer or other person about to make it
shall call upon two or more independent and respectable inhabitants of the locality in which
the place to be searched is situate or of any other locality if no such inhabitant of the said

15
Syed Ibrahim v. State of A.P., AIR 2006 SC 2908; Arumugam v. State, AIR 2009 SC 331
16
Criminal Appeal NO. 891 of 2004
-Pleadings- -Appellants-

locality is available or is willing to be a witness to the search, to attend and witness the
search and may issue an order in writing to them or any of them so to do.

(5)The search shall be made in their presence, and a list of all things seized in the course of
such search and of the places in which they are respectively found shall be prepared by such
officer or other person and signed by such witnesses; but no person witnessing a search
under this S. shall be required to attend the Court as a witness of the search unless specially
summoned by it.

Thus, during the search, presence of two reliable, independent witness is necessary so as
there is no planting of evidence. They have to sign the list of things seized. In the absence of
the independent witness, the court has to look into the evidence with greater scrutiny 17. In the
present scenario, the prosecution has failed to establish whether there were any witnesses
present during the seizure of the items. Further, admission of electronic evidence like the
C.C.T.V footage requites a certificate under S. 65(B) of the Indian Evidence Act, which is not
present in this case. This creates a lens of doubt in the prosecution’s case against the
appellants. In addition, no subsequent forensic tests have been done on the evidence to make
it sure whether they were actually used in pursuance of the alleged assault. This shows that
there was an opportunity of the investigating authorities to plant the evidence and lead to
false implication of the appellants.

Further, there is a serious doubt in the arrest of the accused persons and the recoveries made
pursuant to the said arrest. It has not been specified how the appellants were arrested, in
which circumstances they had disclosed any information. The most important fact is that
there is absence of arrest memo of all the accused. The discovery must have been in
consequence of some information received from the accused and not by the accuser’s own
act18. Four (4) key pieces of evidence has been seized prior to the formal arrest of any of the
appellants. The prosecution further has failed to divulge the details as to which item was in
possession of which appellant at the time of seizure. Thus, it clearly shows that the items that
were seized had been planted. When the evidence itself was seized prior to any information
or divulgence of the accused, it raises a serious doubt on the evidence. In the instant case, the
recoveries were made when the accused persons were not in custody and thus it can be
elicited that there is a lack of credibility.

17
Premchandra v. State of Punjab;1984 Cr.L.J 1131
18
Anter Singh v. State of Rajasthan;2004 10 SCC 657
-Pleadings- -Appellants-

2. THE PROSECUTRIX’S DYING DECLARATION IS UNACCEPTABLE AND INADMISSIBLE

IN COURT OF LAW:

It is most humbly submitted that the dying declaration of the prosecutrix is unacceptable and
inadmissible in the court. Dying declaration has been dealt with in S. 32(1) of The Indian
Evidence Act, 1872.

S. 32(1);

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

The words dying declaration means a statement written or verbal of relevant facts made by
the person who is dead.19 The essential ingredient making the dying declaration an important
piece of evidence is that the statement made by the person should be to the cause of his
death.20 It was held by the Supreme Court that the dying declaration is a statement of a person
as to the cause of his death or as to any circumstances of the transaction which resulted in his
death and it becomes relevant in S. 32(1) of The Indian Evidence Act. The importance of this
expression “cause of death” cannot be over empathised21. Further, it is a well settled principle
in law that in the matter of dying declaration, onus lies on the prosecution to prove the same
beyond reasonable doubt.

Thus through the observations of the Apex Court and the statute itself, it can be inferred that
the dying declaration statement must relate to the cause of the death or the circumstances of
the transaction which resulted in of the death of person giving the statement. It is a pre-
requisite to invoke the provision of S. 32(1) of The Indian Evidence Act, 1872.

19
Sant Gopal v State of UP 1995 Cr LJ 312(All)
20
Moti Singh v State of UP, AIR 1964 S.C.900
21
Tapinder Singh v State of Punjab, AIR 1970 S.C. 1566
-Pleadings- -Appellants-

The essentials of dying declaration have been given by the Supreme Court in several of its
judgments. It has been held by the apex court that the following points should be looked into
in a dying declaration;

1. The court has to make sure as to what was actually the statement of the deceased man.
2. The court has to be certain about the identity of the person named in the dying
declaration
3. The court has to make sure whether the person making the dying declaration had the
opportunity of identifying the person implicated.
4. The court has to make sure whether the person making the dying declaration was in a
fit state of mind.
5. If the person making the dying declaration was not influenced by anybody and there
was no scope of prompting
6. If the person making the dying declaration made a truthful statement and it is not
vitiated in any manner whatsoever.
7. Since the person making the dying declaration made it in absence of the accused, it is
liable for a close scrutiny by the court.

2.1:The court has to make sure as to what was actually the statement of the deceased man.

The Supreme Court in Moti Singh v State of Uttar Pradesh22 mentions two categories of
statements which are admissible as evidence under dying declaration;

(1) His statement as to the cause of the death

(2) His statement as to any circumstances of the transaction which resulted in his death.

Taking the first essential into consideration, regarding what the statement of the prosecutrix,
it is no where mentioned in the facts regarding the details of the declaration. It is not known
whether the statement of the prosecutrix necessitate the pre-requisites of a valid dying
declaration. There is a complete absence of what the dying declaration of the prosecutrix
entails. There a lack of credibility in the statement as the exact comprehensive statement is
absent. Thus, it creates a doubt in the mind. In a criminal case, it is well settled principle that
all the evidence must be proven beyond reasonable doubt. If there is even a slightest doubt,
the prosecution cannot use that evidence. Furthermore, the onus is on the prosecution to
prove the veracity of the dying declaration. It can inferred from the above mentioned facts,
statute and case referred that the prosecution has failed to justify in court the all-inclusive
statement of the prosecutrix.

22
Supra 2
-Pleadings- -Appellants-

2.2: The court has to make sure whether the person making the dying declaration had the
opportunity of identifying the person implicated.

The Supreme Court has in case of Khushal Rao v. State of Bombay23 laid down the principle
in regard to reliance on dying declaration as follows;

“(6) that in order to test the reliability of a dying declaration, the Court has to keep in view
the. circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed at night; whether the capacity
of the man to remember the facts stated had not been impaired at the time he was making the
statement, by circumstances beyond his control;”

The ratio in the aforesaid case of Khushal Rao has been followed in a number of subsequent
cases. In the case of K. Ramachandra Reddy v Public Prosecutor24, the Supreme Court held;

“The deceased had a clear opportunity to observe and identify his assailants and that he was
making the statement without any influence”

In case of Smt. Paniben v. State of Gujarat25, the Supreme Court reiterated the principle;

“The court has to be on guard to see that the statement of the deceased was not a product of
imagination. The court must be satisfied that the deceased was in a fit state of mind and had
a clear prospect and chance to observe and identify his assailants”.

Taking the facts of the present case into consideration, the date and time of the alleged assault
is 16th December 2015 however, the time is not mentioned. It is given a cold evening. Taking
the atmospheric conditions in the capital into consideration, it would be after sunset when the
alleged assault took place. According to the prosecution, the assault took place inside a
moving car at night time. Thus there was no external source of light whereby making it not
only difficult but also next to impossible to identify any of the alleged assailants. It has
already been observed by the Supreme Court in innumerable judgments that the deceased
must have a clear cut chance to identify the witness. In the present case, in the absence of any
light and that too the alleged assault taking place in the cold evening of Delhi it seems that it
was highly improbable for the deceased or the PW-1(Suneel) to recognize anyone. Thus, it

23
AIR 1958 S.C. 22: 1992 Cr. L.J.(S.C)106
24
A.I.R 1976 S.C. 1994: 1976 Cr.L.J.(S.C.)1548
25
1992 All. Cri.R.530: 1992 Cr.L.J.2919(S.C)
-Pleadings- -Appellants-

can be inferred that the deceased didn’t have a clear window of opportunity to observe and
identify the assailants.

Moreover, the deceased didn’t mention any of the names of the alleged assailants in her dying
declaration. It has already been summed up by the Supreme Court that the court has to be
certain about the identity of the person named in the dying declaration. In this particular case,
there no mentioning of name of the alleged assailants in either the dying declaration or in the
F.I.R as mentioned in Issue 1(A). Due to non- mention of any names in evidence, it raises a
big cloud of suspicion on the prosecution’s case.

In a particular case, the deceases only uttered few words first names similar to the of the
accused it was held by the court that it is not proper to accept the prosecution version based
on such incomplete dying declaration 26.Where the court held that only on a few utterances of
names that seem similar to the names of the alleged was wrong, it seems highly improbable
for the court to prosecute the appellants based on a dying declaration which contains no
names.

In addition the Supreme Court in Saudagar Singh v State of Haryana27 held that;

“Where the accused persons are not named by the deceased in his dying declaration, it was
held that accused persons are entitled to benefit of doubt.”

As mentioned above, it can be seen that the prosecutrix didn’t have a reasonable window to
identify the assailants and thereby it gives the appellants a benefit of doubt.

2.3: Infirmities in Recording of Dying Declaration

2.3. A: The prosecutrix making the dying declaration was not in a fit state of mind.

The important test for reliability of the dying declaration is finding arrived at by the courts as
to the satisfaction that the deceased was in a fit state of mind and capable of making a
statement at the point of time when the dying declaration purports to have been
made/recorded28. A person who makes a dying declaration must, however, be compete at the
time he or she makes a statement, otherwise, it is inadmissible.

26
Kajal Sakar v State of Assam 1993 Cr Lj 3869
27
AIR 1998, SC28
28
Supra 6
-Pleadings- -Appellants-

The Supreme Court in State of Gujarat V. Jayrajbhai Punjabhai Varu 29 held that “the court
must be further satisfies that the deceased was in a fit state of mind to record the dying
declaration.”

The court in Ranbir Singh Tyagi v. State Nct of Delhi30 held

“The statement may be brief or longish. It is not the length of the statement but
the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the
court finds that the capacity of the maker of the statement to narrate the facts was impaired
or the court entertains grave doubts whether the deceased was in a fit physical and
mental state to make the statement the court may in the absence of corroborate evidence
lending assurance to the contents of the declaration refuse to act on it.”

In Laxman Kumar v State of Delhi Admnistration31, the court observed,

“The mental condition of the maker of the declaration, alertness of the mind, memory and
understanding of what he is saying in the matters which can be observed by any person. But
to lead assurance to those factors having regard to the importance of the dying declaration,
the certificate of a medically trained person is insisted upon.”

In Dilip Kumar Roy v. The State32 and Sambhu Bora v. State of Assam33 the court has where as
per the medical opinion the survival of the declarant in a fit physical and mental condition
was doubtful, it was held that the dying declaration under such circumstances should not be
accepted without corroboration.

From the above cases, it can be seen that for a proper dying declaration admissible in court
the deceased should give the statement in a fit statement of mind. The statement must be
made in a conscious state and if statements are made in a semi-conscious state, such is not
admissible in the court34.

However, in the present case, the prosecution has failed to prove that the prosecutrix was in a
fit state of mind. There was a lack of independent assessment whether the prosecutrix was in

29
Criminal Appeal No. 1236 of 2010]
30
CRL.A.No.352/2000
31
AIR 1986 S.C. 250
32
1988 Cr.L.J.(NOC) 7130; 1988 (3) Crimes 530 (Cal)
33
1982 Cr.L.J. 1027 (Gau.) (D.B)
34
Pa¶mbaka Rosamma v. State of Andra Pradesh
-Pleadings- -Appellants-

a fit state of mind. Neither fit state of mind nor conscious or semi conscious has been proven.
A medical certificate neither was present nor was any corroboration of any doctor’s opinion
present. Though the certificate is not mandatory, however in these circumstances there is need
for certificate as the very nature in which the dying declaration is recorded seems suspicious.
The prosecution has failed to provide whether the dying declaration has been recorded in
conscious or a semi-conscious or in a stable mental condition. It is merely stated and has not
been substantiated. In a criminal trail, all the evidences must be substantiated and proved in
the court of law. The mere mention of dying declaration and non-mentioning of the
circumstances in which the aforementioned statement was recorded raises serious questions
from the very face of the matter. It is evident that there a big loophole and this lacuna is fatal
to the prosecution using dying declaration as a piece of evidence.

2.3.B: The prosecutrix making the dying declaration was influenced and there was a scope of
prompting

The dying declaration must inspire full confidence as the deceased is not present of scrutiny.
A dying declaration which suffers from infirmity cannot form the basis of conviction 35.
General prudence must be applied in assessment of the dying declaration, whether it is
truthful and genuine. The court must be satisfied that the dying declaration is true and
voluntary36. The court has to be on guard that the statement of deceased was not a result of
tutoring, prompting or a product of imagination 37. It is well settled that dying declaration
must be dealt with caution for the reason that the maker of the statement had not been
subjected to cross-examination38.

The Supreme Court in Nanhar and Ors. v. State of Haryana39 held that;

“Dying declaration should be such, which should immensely strike to be genuine and stating
true story of its maker. It should be free from all doubts and on going through it, an
impression has to be registered immediately in mind that it is genuine, true and not tainted
with doubts.”

35
Ram Manorath v. State of UP; 1981 SCR (3) 195
36
State of UP v. Ram Sagar Yadav A.I.R 1985 S.C.416; Ramavati Devi v State of Bihar, AIR 1983 S.C. 164
37
Supra 7
38
Supra 5
39
Criminal Appeal No. 2496 of 2009
-Pleadings- -Appellants-

Thus the underlying principle remains that dying declaration should be truthful and should
strike confidence in the court. It shouldn’t be vitiated by any fraud or doubt. In this particular
case, the very facts show a big void in the dying declaration. The exact text of the dying
declaration is no where presented by the prosecution. This raises a serious doubt in the
veracity of the statement of the prosecutrix implicating the appellants. Though the court
doesn’t mandate who should record the dying declaration and how should be done, however,
in the present case the recording is done by whom, in what circumstances is nowhere to be
found. The evidence lacks an extensive ground to be treated a substantial evidence, thus it
seems fabricated to a large extent.

2.3. C: The guidelines of recoding the dying declaration were not followed

In Khushal Rao40’s case, the court provided guidelines and principles in reliance on a dying
declaration which is;

“5) That a dying declaration which has been recorded by a competent magistrate in the
proper manner, that is to say, in the form of questions -and answers, and, as far as
practicable, in the words of the maker of the declaration, stands on a much higher footing
than a dying declaration which depends upon oral testimony which may suffer from all the
infirmities of human, memory and human character, and

(6) That in order to test the reliability of a dying declaration, the Court has to keep in view
the. circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed at night; whether the capacity
of the man to remember the facts stated had not been impaired at the time he was making the
statement, by circumstances beyond his control;

(8) And that the statement had been made at the earliest opportunity and was not the result of
tutoring by interested parties.”

In the present case, it is merely mentioned that dying declaration was recorded. It is no where
mentioned who recorded it, when it was recorded, what format was used in recording it,
whether it was an oral testimony or a written testimony, whether signs and gestures were
used, whether the deceased was in a conscious or a semi-conscious state. All these lacunas in

40
Supra 5
-Pleadings- -Appellants-

this particular dying declaration raise a serious doubt on this piece of evidence used in
prosecuting the appellants.

In Mani Ram v. State of Madhya Pradesh41; the Apex Court held that;

“When the person making the dying declaration was in the hospital, it was the duty of the
person making the dying declaration to do so in presence of the doctor and after only being
certified by the doctor that the declarant was conscious and in senses and in a fit condition to
make the declaration. It was also held that it was unsafe to reply on the dying declaration on
account of the aforesaid infirmity”.

All these infirmities clearly show that the dying declaration in the particular case cannot be
treated as substantive evidence in prosecuting the appellants. It is a well settled principle that
there is no hard and fast rule can be laid down as to when a dying declaration should be
accepted, except stating that each case must be decided in the light of its own facts and other
circumstances42. In this case, the prosecution has failed to prove beyond reasonable doubt that
prosecutrix was in a fit state of mind. Further, there are several procedural gaps that have
been pointed out above in recording of the dying declaration, the in availability of exact text
of the statement, the inability to determine the veracity of the statement, the non-mentioning
of names appellants in both the F.I.R and dying declaration raises serious questions in the
prosecution’s case against the appellants.

3. THE TRIAL COURT PROCEEDING FOR THE JUVENILE IS NOT VALID

The trial court proceedings for the juvenile are not valid. The juvenile at the time of
commission of the offence was a minor and his age was 17 years and 10 months as per
matriculation certificate. The JJ (C&P) Act, by laying down that "child'' refers to a person
who has not completed the age of 18, has set at rest the issue of whether the provision
referred to the beginning or completion of that age.43

S. 2(k) Juvenile Justice (Care and Protection of Children) Act, 2000

In this Act, unless the context otherwise requires, “juvenile” or “child” means a person who
has not completed eighteenth year of age.
41
A.I.R. 1994 S.C.840
42
A.I.R 1940,Mad 196
43
In Bharathanatyam,1994 Cri LJ3546(Mad) and Malda Dada,ILR 1972 Guj 326 the question raised was what
was the meaning of the word 'attained'? Did it mean entering the specified age or completing it.
-Pleadings- -Appellants-

S. 2(l) Juvenile Justice (Care and Protection of Children) Act, 2000

In this Act, unless the context otherwise requires,44 “juvenile in conflict with law” means a
juvenile who is alleged to have committed an offence and has not completed eighteenth year
of age as on the date of commission of such offence.

As soon as a juvenile in conflict with law is apprehended by police, he shall be placed under
the charge of the special juvenile police unit or the designated police officer, who shall
produce the juvenile before the Board without any loss of time but within a period of twenty-
four hours of his apprehension excluding the time necessary for the journey, from the place
where the juvenile was apprehended, to the Board. Provided that in no case, a juvenile in
conflict with law shall be placed in a police lockup or lodged in a jail45

(CrPC) 46laying down that any offence committed by a child, not punishable with death or life
imprisonment, may be tried by the court of a chief judicial magistrate or a juvenile court or
any other law in force providing for the treatment, training and rehabilitation of youthful
offenders.

3.1 The Matriculation Certificate was a Valid Proof of Age.

The matriculation certificate is considered to be a valid proof of age over medical certificate.
Where the documents like matriculation certificate, school leaving certificate Or the entry
made in the different records of the school are available, they should be accepted as reliable
and genuine. It is because the entries definitely having been made several years before,
cannot be challenged or attacked on the ground that subsequent to the occurrence any record
has been created for the advantage of any accused. The high school certificate was held to be
a good evidence of age, though not conclusive.47

S. 49 of Juvenile Justice (Care and Protection of Children) Act, 2000 states as:

Presumption and determination of age.—(1) Where it appears to a competent authority that

person brought before it under any of the provisions of this Act (otherwise than for the
purpose of giving evidence) is a juvenile or the child, the competent authority shall make due
inquiry so as to the age of that person and for that purpose shall take such evidence as may
44
Substituted by Act 33 of 2006, S. 4.
45
S. 10(1) JJ(C&P)Act,2000.
46
S. 29B of the CrPC 1898 and S. 27 of CrPC 1973
47
Daljit Singh v State of Punjab,1992 Cri LJ 1051(P&H)
-Pleadings- -Appellants-

be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile
or the child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any
subsequent proof that the person in respect of whom the order has been made is not a
juvenile or the child, and the age recorded by the competent authority to be the age of person
so brought before it, shall for the purpose of this Act, be deemed to be the true age of that
person.

The entry of the date of birth in the record of registration of births and deaths maintained in
accordance with the provisions of the Act of 1969 is admissible in evidence under S. 35 of the
Evidence Act. This is because it fully satisfied the three conditions, namely, (i) the entry of
the date of birth was made in a public record; (ii) it is an entry stating a fact in issue; and(iii)
it was made by a public servant in discharge of his official duty.48

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred to as ‘the Rules’) which reads as under:-

Procedure to be followed in determination of Age.—(1) In every case concerning a child or a

juvenile in conflict with law, the court or the Board or as the case may be the Committee
referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a
juvenile in conflict with law within a period of thirty days from the date of making of the
application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance or documents, if available, and send him to
the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by
seeking evidence by obtaining—

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

48
Anita v Atal Bihari and another,1993 Cri LJ 549(MP)
-Pleadings- -Appellants-

(ii) the date of birth certificate from the school (other than a play school) first attended; and
in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion
will be sought from a duly constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board
or, as the case may be, the Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by considering his/her age on
lower side within the margin of one year.

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

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18
years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule
(3), the court or the Board or as the case may be the Committee shall in writing pass an
order stating the age and declaring the status of juvenility or otherwise, for the purpose of
the Act and these rules and a copy of the order shall be given to such juvenile or the person
concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of S.
7-A, S. 64 of the Act and these rules, no further inquiry shall be conducted by the court or the
Board after examining and obtaining the certificate or any other documentary proof referred
to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where
the status of juvenility has not been determined in accordance with the provisions contained
in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing
appropriate order in the interest of the juvenile in conflict with law.
-Pleadings- -Appellants-

In Shah Nawaj v. State of U.P. & Anr49 held, Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 which was brought in pursuance of the Act describes four
categories of evidence which have been provided in which preference has been given to
school certificate over the medical report. Rule 12 of the Rules categorically envisages that
the medical opinion from the medical board should be sought only when the matriculation
certificate or school certificate or any birth certificate issued by a corporation or by any
Panchayat or municipality is not available.

In Raju and Anr. v. State of Haryana 50, the Supreme Court had admitted “mark sheet” as one
of the proof in determining the age of the accused person.

The Supreme Court has treated the date of birth in School Leaving Certificate as valid proof
in determining the age of an accused person. In Bhoop Ram v. State of U.P.51, this Court
considered whether the appellant therein is entitled lesser imprisonment than imprisonment
for life and should have been treated as a “child” within the meaning of S. 2(4) of the U.P.
Children Act, 1951 (1 of 1952). The following conclusion in ¶ 7 is relevant which reads as
under:-

“7…..The first is that the appellant has produced a school certificate which carries the date
24-6-1960 against the column “date of birth”. There is no material before us to hold that the
school certificate does not relate to the appellant or that the entries therein are not correct in
their particulars….”

It is clear from the above decision that this Court relied on the entry made in the column
“date of birth” in the School Leaving Certificate.

In Rajinder Chandra v. State of Chhattisgarh and Anr.52, the Supreme Court once again
considered the entry relating to date of birth in the mark sheet and concluded as under:

“5. It is true that the age of the accused is just on the border of sixteen years and on the date
of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v.
State of Bihar this Court has, on a review of judicial opinion, held that while dealing with the
question of determination of the age of the accused for the purpose of finding out whether he

49
[2011] 9 S.C.R. 859.
50
(2010) 3 SCC 235.
51
(1989) 3 SCC 1.
52
(2002) 2 SCC 287.
-Pleadings- -Appellants-

is a juvenile or not, a hyper technical approach should not be adopted while appreciating the
evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if
two views may be possible on the said evidence, the court should lean in favour of holding
the accused to be a juvenile in borderline cases. The law, so laid down by this Court,
squarely applies to the facts of the present case."

In Arnit Das v. State of Bihar, 53 the Supreme Court held that while dealing with a question of
determination of the age of an accused, for the purpose of finding out whether he is a juvenile
or not, a hyper-technical approach should not be adopted while appreciating the evidence
adduced on behalf of the accused in support of the plea that he is a juvenile and if two views
may be possible on the same evidence, the court should lean in favour of holding the accused
to be juvenile in borderline cases.

In Mukarrab Etc v. State of U.P.54, the Court held that the age determination is essential to
find out whether or not the person claiming to be a child is below the cut-off age prescribed
for application of the Juvenile Justice Act. The issue of age determination is of utmost
importance as very few children subjected to the provisions of the Juvenile Justice Act have a
birth certificate. As juvenile in conflict with law usually do not have any documentary
evidence, age determination, cannot be easily ascertained, specially in borderline cases.
Medical examination leaves a margin of about two years on either side even if ossification
test of multiple joints is conducted.

In Ashwani Kumar Saxena v. State of M.P.55, observed as under: (SCC pp. 763-64, ¶ 32)

"Age determination inquiry' contemplated under S. 7-A of the Act read with Rule 12 of the
2007 Rules enables the court to seek evidence and in that process, the court can obtain the
matriculation or equivalent certificates, if available. Only in the absense of any matriculation
or equivalent certificates, the court needs to obtain the date of birth certificate from the
school first attended other than a play school. Only in the absense of matriculation or
equivalent certificate or the date of birth certificate from the school first attended, the court
neeeds to obtain the birth certificate given by a corporation or a municipal authority or a
panchayat. The question of obtaining medical opinion from a duly constituted Medical Board
arises only if the abovementioned documents are unavailable. In case exact assessment of the

53
(2000) 5 SCC 488
54
(2017) 2 SCC 210
55
(2012) 9 SCC 750.
-Pleadings- -Appellants-

age cannot be done, then the court, for reasons to be recorded, may, if considered necessary,
give the benefit to the child or juvenile by considering his or her age on lower side within the
margin of one year."

In Dilip Saha v State of West Bengal 56, the full bench gave elaborate reasons for holding that
the age at the date of commission of the offence was decisive of the applicability, taking into
account the protective nature of the Act. First, it pointed out that attainment of a particular
age was no bar to the trial of a child delinquent under the Act. Secondly, the Act had
conferred on the child certain rights not enjoyed by adults: release on bail in generally non-
bailable cases; prohibition against imposition of death penalty or imprisonment; ban on
preventive proceedings; removal of disqualifications; and so on. 'These beneficial provisions
are rights vested in a juvenile delinquent on the day the offence is committed. He cannot be
denied of them by reason of the fact that at the time of actual trial he has become an
adult...'Thirdly, the section providing for trial of child delinquent from adult offender, did not
say 'that if a person was a child at the time of commission of the offence but became an adult
at the time of trial, he would be deprived of the benefits conferred by the...Act'. The fourth
argument was the most forceful of all. The court pointed out that sometimes delay in the trial
of an accused may be caused by the investigating officer. In such cases, denial of the benefits
of the Act would defeat its whole object and purpose. It will also be against the constitutional
principle.

In Umesh Chandra v State of Rajasthan,57 a full bench of the Supreme Court, too, held the
date of commission of offence as the relevant date for applying the Children Act. It observed,

As regards the general applicability of the Act, we are clearly of the view that the relevant
date for the applicability of the Act is the date on which the offence takes place. Children Act
was enacted to protect young children from the consequences of their criminal acts on the
footing that their mind at that age could not be said to be mature for imputing mens rea as in
the case of an adult. This being the intendment of the Act, a clear finding has to be recorded
that the relevant date for applicability of the Act is the date on which the offence takes place.
It is quite possible that by the time the case comes up for trial, growing in age being an
involuntary factor, the child may have ceased to be a child. Therefore, §3 and 26 became
necessary. Both the § clearly point in the direction of the relevant date for the applicability of

56
1979 Cri LJ 88(FB).
57
1982 Cri LJ 994.
-Pleadings- -Appellants-

the Act as the date of occurrence. We are clearly of the view that the relevant date for
applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is
the date of the occurrence and not the date of the trial.

In Vimal Chadha v. Vikas Choudhary and Another 58, it was held that the age of a juvenile
deliquency must be determined as and when an application is filed. The relevant date for
determination of the age of the accused would be the date on which the occurrence took
place. What would be the date on which offence had been committed in a given case has to be
decided having regard to the fact situation obtaining therein. S. 472 CrPC contemplates a
continuing offence. If an offence has been a continuing offence, then the age of a juvenile in
deliquency should be determined with reference to the date on which the offence is said to
have been committed by the accused.

3.2 Special Law Prevails Over General Law

S. 5 of the Criminal Procedure Code state as:

5. Saving59.— Nothing contained in this Code shall, in the absence of a specific provision to
the contrary, affect any special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of procedure prescribed, by any other
law for the time being in force.

In Raghbir v. State of Haryana60, the question for consideration in this appeal by special
leave is whether a person under 16 years of age and accused of an offence under S. 302,
Penal Code can get the benefit of the Haryana Children Act, 1974 (hereinafter 'the Act'). The
undisputed facts are that the appellant along with three others was convicted of the offence of
murder and sentenced to imprisonment for life by the Sessions Judge. The appeal was
dismissed by the High Court. The appellant then filed an application for special leave to
appeal under Article 136 of the Constitution. Leave was granted confined to the question of
the applicability of the Act to his case. It is also not disputed that the appellant was less than
16 years at the time he first appeared before the trial Court. He was thus a 'child' within the
meaning of that term under Clause (d) of S. 2 of the Act. Learned Counsel appearing for the
appellant, submitted that in view of S. 5 of Criminal P.C. 1973 (hereinafter called ''the Code'),
the appellant would get the benefit of the Act. There is a decision of this Court on ' the point
58
(2008) 15 SCC 216.
59
CRPC,1973.
60
(1981) 4 SCC 210.
-Pleadings- -Appellants-

in the case of Rohtas v. State of Haryana61 that held the trial of a child under the provisions of
the Act was not barred.

Verma J. has observed as follows (at p. 590) : -

The only question before us is whether the provisions of the new Code have brought about
any change in this position. There can be no doubt that if there is an irreconcilable conflict
between the provisions of the new Code and those of the Bal Adhiniyam, then the new Code
being the later Central enactment it will supersede Bal Adhiniyam, the earlier State enactment
to the extent of repugnancy by virtue of Clause (1) of Article 254 of the Constitution. The real
question, therefore, is whether there is any such : repugnancy between the two enactments so
as to attract Article 254. It is equally clear that in case there is no such repugnancy and the
relevant provisions of the two enactments are capable of co-existence, then Article 254 would
not be attracted, and the provisions of the Bal Adhiniyam conferring exclusive jurisdiction on
the Juvenile Courts to try all offences including those punishable with life imprisonment or
death would continue to operate. Such a conclusion is supported also by the fact that the Bal
Adhiniyam is a special local. Act while the new Code is a general enactment applicable
throughout the country on account of which the special local Act would apply within this
State in preference to the general law on the subject. It is in this light that the question has to
be examined with a view to determine whether there is any such irreconcilable conflict so as
to attract Article 254 of the Constitution. This is the real question for decision.

He has held (at p. 594):

Applying the tests indicated by the settled principles, I have no hesitation in holding that
there is no real conflict between the provisions of the new Code, particularly S. 27 thereof,
and the provisions of the Bal Adhiniyam. In short, the provisions of the new Code clearly
save any special or local law like the Bal Adhiniyam and S. 27 of the new Code is merely an
enabling provision which does not express any contrary intention to undo the saving provided
in S. 5 of the new Code. There being thus no conflict or repugnancy, the question of Article
254 of the Constitution being attracted does not arise.

61
(1979) 4 SCC 299.
-Pleadings- -Appellants-

PRAYER

In the light of arguments advanced and authorities cited, the Appellant humbly submits

that the Hon’ble Court may be pleased to adjudge and declare that:

1. The Appellants should receive a benefit of doubt and subsequent acquittal

considering the investigation to be erroneous and unfair.

2. The dying declaration of the prosecutrix be invalidated.

-Pleadings- -Appellants-

3. The trial procedure of the Juvenile be held unconstitutional and against

public policy.

Any other order as it deems fit in the interest of equity, justice and good

conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/-

(Counsel for the Appellants)